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The Rev. Algernon Sidney Crapsey, S. T. D., is, and has been since the year 1879, rector of the Protestant Episcopal Church of St. Andrew at the City of Rochester, in the Western Diocese of New York. He was ordained a presbyter in 1873. St. Andrew's includes 342 families and 614 communicants. [Report of the Diocese of Western New York (p. 131 and the table of statistics) received in evidence at page 120 of the Record.] In 1904 Dr. Crapsey established a third and evening service, in part devotional, but especially and chiefly intended for preaching, such service to be in addition to the regular morning service and the regular evening or vesper service held earlier in the afternoon. In 1904 and 1905 he preached at such second evening service a series of sermons, some of which touched upon the Virgin Birth and Resurrection of Our Lord. There were criticisms upon their orthodoxy which came to the attention of the Rt. Rev. William D. Walker, D. D., Bishop of Western New York; and he appointed a Committee of Investigation under sect. III of the Ordinances of the Ecclesiastical Court, adopted pursuant to Canon 2 of Title III of the canons of that diocese. Such sect. III provided that:
"Whenever from public rumor, or otherwise, the Bishop shall determine that there is probable cause to believe that a minister of this diocese has been guilty of an offense " for which he is liable to be tried, and that the interests of the church require an investigation, it shall be his duty to appoint * * * five persons * * * to make such investigation"; that such committee should, "if in their opinion there is sufficient [1/2] ground therefor, make * * * presentment of the minister for trial"; but that if "in their opinion there is no cause for such "presentment, they shall certify to the Bishop accordingly."
Such Committee's labors continued from July 19, 1905, to November 11, 1905, when it reported to the Bishop that there was no sufficient ground for presentment. [Record, pp. 116,119] Nevertheless, the Standing Committee of the diocese submitted a presentment against Dr. Crapsey which was approved by the Bishop on March 3, 1906, being the first Thursday in Lent; and Dr. Crapsey was called upon to answer it at a session of the Diocesan Court to be held at the village of Batavia on April 17th, 1906, the Tuesday next after Easter. His assistant, Mr. Alexander, had left St. Andrew's the preceding January. [Record, p. 66.] So that he was required, single-handed, to meet all Lenten duties of his parish, and, while so engaged, to prepare his defense to grave and far-reaching charges. When the trial was called, Dr. Crapsey's counsel asked for a few weeks to make fit preparation; but the Court allowed only eight days. Upon the adjourned day, April 24th, 1906, the counsel pointed out that all the members of the Court had been appointed by the prosecutors, the Standing Committee or the Bishop, and asked an adjournment of three weeks until after the meeting of the Diocesan Council on May 15th, 1906, at which a new court would or could be appointed. This, they said, would avoid a trial before a court entirely named by one side of the controversy. They also claimed that, to force a trial before a court so named by the prosecution, was contrary to the course of the common law which the canon of Western New York required should, as far as practicable, be followed on the trial. This application was denied.
There were two charges, and two only, made in the presentment. The first was of a violation of subsection (I) of section I of Canon 23, which provides that:
"A bishop, priest or deacon of this Church shall be liable to presentment and trial for the following offenses, viz.:
"(b) Holding and teaching publicly or privately and advisedly any doctrine contrary to that held by this Church."
Canon 23 was adopted at the General Convention of 1904, and took effect on January 1, 1905.
Under this charge there were two specifications. The first was that:
"At divers times during the years 1904 and 1905 the said presbyter did openly, advisedly, publicly and privately utter, avow, declare and teach doctrines contrary to those held and received by the Protestant Episcopal Church in the United States of America by the delivery of the sermons thereafter published in said book 'Religion and Politics' and among other statements in said sermons in particular by the use therein of the following languages, words and terms"--there being: then quoted fifteen passages--it being intended by said language, words and terms to express the presbyter's disbelief in and to impugn and to deny * * *
"(1) The doctrine that our Lord Jesus Christ is God, the Saviour of the world * * *;
"(2) The doctrine that our Lord Jesus Christ was conceived by the Holy Ghost * * *;
"(3) The doctrine of the Virgin birth of our Lord Jesus Christ * * *;
"(4) The doctrine of the resurrection of our blessed Lord and Saviour * * *;
"(5) The doctrine of the Blessed Trinity."
[4] The second specification under the first charge was that Dr. Crapsey did on or about December 31, 1905, openly, publicly and privately declare and teach doctrines contrary to those held by the Church,
"by the delivery of a sermon * * * in the course of which, among others, he made in substance the following distinct statements:
"(1) Jesus was born of parents belonging to the middle class.
"(2) He was born of a simple father and mother.
"(3) He was the son of a carpenter.
"(4) The fact that the early Christians predicated a miraculous birth of Jesus was to be regarded as one of the greatest misfortunes that had ever befallen mankind."
And that by such language Dr. Crapsey "intended" to express his disbelief in and to impugn and deny the doctrines:
(1) "That our Lord Jesus Christ is God, the Saviour of the world;
(2) That He "was conceived by the Holy Ghost;"
(3) Of the "Virgin birth;" and
(4) Of "the Blessed Trinity."
The word "advisedly" used in the canonical definition of the offense was not used in this specification, the pleader, perhaps, considering the assertion of intention as an equivalent.
The second charge was of the violation of subdivision (f) of Sect. I of Canon 23, which provides that
"A bishop, priest or deacon * * * shall be liable to presentment and trial for *
"(f) Any act which involves a violation of his ordination vows."
[5] Under the second charge there were two specifications. The first was that by his utterances and conduct set forth in the first charge and its specifications--that is to say, by his advisedly and intentionally impugning and denying doctrines of the Church, Dr. Crapsey did "violate and break" his ordination vows:
(1) Of belief that the Holy Scriptures are the word of God and contain all things necessary to salvation, and that he would "conform to the doctrine, discipline and worship" of the church.
(2) That he would give faithful diligence always so to minister doctrine, sacraments and discipline "as the Lord hath commanded and as this Church hath received the same" and teach the people committed to his charge "to keep and observe the same."
(3) That he would "be ready with all faithful diligence to banish and drive away from the Church all erroneous and strange doctrines contrary to God's word."
The second specification under the second charge was that--
"Upon many occasions during the years 1904 and 1905 the said presbyter did publicly use the liturgy of the Church * * * and did minister to many people the sacraments of the Church, and * * * that by his conduct in so doing taken in connection with his public utterances" quoted under the first charge he broke his further ordination vows--
(4) To be "diligent to frame and fashion himself and his family according to the doctrine of Christ," and to make himself and them, as much as in him lay "wholesome examples and patterns to the flock of Christ."
[6] (5) To "maintain and set forward * * * quietness, fear and love among all Christian people."
Dr. Crapsey fully and formally answered the presentment. He quoted in his answer his further ordination vows that he was--
"determined out of the said Scriptures to instruct the people committed to" his "charge and to teach nothing, as necessary to eternal salvation, but that which" he "should be persuaded may be concluded and proved by the Scriptures;"
and that he would be
"diligent in prayers and in reading the Holy Scriptures, and in such studies as help to the knowledge of the same."
The answer admitted that he had delivered at St. Andrew's Church lectures containing the passages quoted under the first specification of the first charge, but denied the correctness of the quotations under the second specification from his sermon of December 31, 1905.
The preaching of that sermon was the only fact alleged to have happened after the report of the Investigation Committee against prosecution and before the Standing Committee made this presentment. The only proof that such sermon contained the criticized statements was the evidence of Rev. Mr. Alexander. Dr. Crapsey's counsel claimed that it was an unfit thing for the Diocesan Court to base any finding of guilt upon Mr. Alexander's testimony. He was Dr. Crapsey's assistant, and from the chancel heard the sermon of Sunday evening, December 31, 1905. He made a written memorandum on his return home which he preserved. When he was asked whether he did not make the memorandum "with the thought that you (he) might testify to it against" his pastor and chief he first declined to answer, and then being pressed he said, he was not in court "to prove a case for" [6/7] Dr. Crapsey, "or for anybody, or especially to be used by the defense"; and being further pressed, he said, "I have no recollection of having made the statement for that purpose," and that that was the only answer he could give. He disapproved, so he said, Dr. Crapsey's sermons printed in the book "Religion and Politics;" but he admitted that after he had heard them, instead of resigning he had asked that his salary as curate be increased. This was refused. He was asked whether, when the Investigation Committee was considering Dr. Crapsey's sermons, and there was doubt whether he might not be prosecuted, he did not ask of vestrymen of St. Andrew's Church their support for the rectorship, if Dr. Crapsey were removed; and he first replied, "I wouldn't answer such a question." Then, being pressed with the question,
"Are you willing to testify that at the very time you took down those minutes of what Dr. Crapsey said, at the very time you knew, and all men knew, that these proceedings were pending, you did not apply to the vestry of St. Andrew's Church to have the position from which Dr. Crapsey might be removed?"
he answered, "No, I wouldn't say so," and, being further pressed, he said, "Of course, those matters I don't think necessary to discuss." [Mr. Alexander's testimony, at page 64 of the Record.] And in his testimony there is much else of the same kind. Dr. Crapsey in January, 1906, requested and received Mr. Alexander's resignation. It was solely by a witness making such an exhibition of his own imperfect sense of honor that the alleged statements of the sermon of December 31, 1905, were sought to be proved.
There attended the trial witnesses to prove that in the understanding of the Church Dr. Crapsey's statements of doctrine were not unorthodox but within the fair liberty the Church allowed her clergy. From among them were called:
[8] Rev. Dr. Joseph A. Leighton, Professor of Theology and Chaplain at Hobart College.
Rev. Dr. John P. Peters, Rector of St, Michael's Church, New York, formerly Professor of Old Testament Literature and Languages in the Protestant Episcopal Divinity School in Philadelphia, and a well known author on theological subjects.
Rev. Dr. Elwood Worcester, Rector of Immanuel's Church, Boston, Mass.
Rev. Frank H. Nelson, Rector of Christ Church, Cincinnati, Ohio.
Rev. Dr. Charles H. Babcock, lately Rector of Christ Church, Providence, R. I.
Rev. J. Howard Melish, Rector of Holy Trinity Church, Brooklyn, N. Y.
Rev. Alexis Stein, Rector of Christ Church, Fitchburg, Mass.
Rev. John W. Sutor, Rector of the Church of the Epiphany, Worcester, Mass.
Rev. Mr. Hoffman, Rector of Christ Church, Hornellsville, N. Y.
Rev. Wilfred L. Hoopes, of Cambridge, Mass.
The Court having refused the testimony of these clergymen, Dr. Crapsey called no other witnesses. The decision was rendered by four members of the Court. The Rev. Dr. Dunham dissented. He declared that Dr. Crapsey had constantly affirmed his acceptance of all the articles of the Christian faith as contained in the Apostles' Creed, and that his error consisted "rather in presuming to define what God has not been pleased to reveal" and in interpreting the doctrines of the incarnation and resurrection "in a manner not generally received by the Church, rather than in a denial and rejection of their truth and authority."
The points and findings of the majority decision were these, and these only:
(1) That Dr. Crapsey was a presbyter and rector of St. Andrew's Church.
(2) That he had in 1905 "published and caused to be sold and circulated in book form under [8/9] the title 'Religion and Politics,' a series of sermons theretofore delivered by him in his official capacity as rector of St. Andrew's."
(3) That such book contained the fifteen passages quoted in the presentment.
(4) That in his sermon of December 31, 1905, he had used the language imputed to him by the presentment.
No other facts were found. The presentment had not charged, and the Diocesan Court did not decide, that Dr. Crapsey was insincere in his preaching or his book, or that it did not represent conscientious study, or that he did not believe that his spiritual interpretation of the articles of its creeds as to the Incarnation of our Lord and His Resurrection were true and permited by the Church, or that the Bishop or anyone else had remonstrated with him or sought to convince him of error. The presentment did charge, but the Diocesan Court refused to decide, that he had advisedly or intentionally impugned any doctrine of the Church. The decision in effect exonerated Dr. Crapsey from doing any such thing advisedly or intentionally.
The conclusions of the Diocesan Court from such four facts, and from them only, were that Dr. Crapsey was guilty of the charges set forth in the presentment but only "to the extent now here stated:
[Charge I. Specifications 1 and 2.]
(a) "That by his writings contained in said book 'Religion and Politics,'" he "impugns, if he does not express disbelief in and denial of the doctrines set forth in paragraphs numbered 1 and 5," that is to say, the doctrine that "Our Lord Jesus Christ is God, the Saviour of the world," and the doctrine "of the Blessed Trinity."
(b) That in the said writings contained in the book * * * said respondent expresses his disbelief in and impugns and denies [9/10] the doctrines * * * numbered 2, 3 and 4," that is to say, "the doctrine that Our Lord Jesus Christ was conceived by the Holy Ghost," "the doctrine of the Virgin Birth of Our Lord Jesus Christ" "and the doctrine of the Resurrection of Our Blessed Lord and Saviour."
(c) That by the quoted language contained in the sermon of December 31, 1905, Dr. Crapsey "impugns if he does not assert his disbelief in and denial of the doctrines * * * 1 and 4," that is to say, the doctrine that "Our Lord Jesus Christ is God the Saviour of the world," and "the doctrine of His Resurrection."
(d) That "by the use of the language from said sermon" * * * "the accused expresses his disbelief in and impugns and denies the doctrines * * * 2 and 3," that is to say, the doctrines of the Conception by the Holy Ghost and of the Virgin Birth.
There was neither finding nor conclusion that Dr. Crapsey had advisedly impugned or denied any doctrine of the Church or that he had intended so to do. He was, by the decision, exonerated from the charge of the presentment that he had done so.
The following was the conclusion with respect to
Charge II, Specification I.
(e) "That the accused did, by his said utterances contained in said book and sermons * * violate and break" his ordination vows
(1) of belief that the Holy Scriptures were the word of God and contained all things necessary to salvation, and to conform to the doctrine, discipline and worship of the Church;
(2) To "minister the doctrine, sacraments [10/11] and discipline of Christ as the Lord hath commanded and as this Church hath received the same according to the Commandments of God;" and
To banish and drive away from the Church all erroneous and strange doctrines contrary to God's word."
It will be noticed that Charge I was sustained solely on the ground of the publication in 1905 of the book "Religion and Politics," and not on the ground of the preaching of the sermons. The Diocesan Court perceived that, as the canon for violation of which the charge was brought, was not in force until January 1, 1905, and as it did not appear that any of the sermons to which there was objection had been preached after that date, the charge could not be sustained upon the sermons. The court seemed, however, to forget that Charge I was not for publishing a book but solely for heretical teaching "by the delivery of the sermons." Dr. Crapsey's counsel suppose that the decision upon Charge I is entirely void as a decision of something not charged--of something not, therefore, within the jurisdiction of the court.
Charge II is sustained upon Dr. Crapsey's "utterances contained in said book and sermons." No "utterance" was proved in 1905 after the canon alleged to be violated was in force except the sermon of December 31, 1905, unless the publication of the book be deemed an "utterance."
Specification 2 of Charge II--that which charged Dr. Crapsey with violation of his vows to fitly frame and fashion himself and his family and to maintain and set forward quietness, peace and love among all Christian people, was unanimously rejected by the Diocesan Court. Upon the summing up, the counsel for the prosecution themselves paid weighty tribute to his character, which, Mr. Locke [11/12] said, "so far as his daily life is concerned, is of the highest." [Proceedings at Batavia, including Addresses of Counsel, privately printed, page 129.]
The canon law of Western New York required the Court in its decision to state the "sentence which in their opinion ought to be pronounced," and that the sentence when pronounced by the Bishop should be one "not exceeding in severity that specified by the opinion of the Court." [Ordinances, Sects. XVIII and XXII.]
The decision, in obedience or supposed obedience to this canon, prescribed, as punishment for the offense thus adjudged against him, that Dr. Crapsey be
"suspended from exercising the functions of a minister of this Church until such time as he shall satisfy the ecclesiastical authority of the diocese that his belief and teaching conform to the doctrines of the Apostles Creed and the Nicene Creed as this Church hath received the same."
The sentence remits, therefore, to another tribunal, the determination whether in the future Dr. Crapsey shall be orthodox. Such other tribunal must be satisfied not only as to his sermons, publication and other teaching, but as to the state of his conscience and intellect. It is to be so satisfied not only as to the doctrines of the Virgin Birth and Resurrection, with which this case is concerned, but with all the doctrines of the two great creeds of the Church.
The identification of the "ecclesiastical authority" to which Dr. Crapsey is bidden to submit proof of his belief and teaching, is left in some doubt at least. Title Seventh, [This section seems, according to a note to this canon as printed in the Proceedings of the 68th Annual Council of the Western Diocese of New York, to have been taken over from resolutions and canons of the National Church, adopted in 1787, 1789, 1795, 1803, 1808, 1834 and 1840.] sect. III of the [12/13] Constitution of the Diosese of Western New York provides that
"The Standing Committee shall be the Ecclesiastical Authority in all cases provided for by the General Constitution and Canons of the Church and shall exercise all other powers confided in them thereby or by the Council of the Diocese."
The national constitution and canons of the Church do not state--but they seem to imply --that, unless otherwise provided by the canons of the diocese, the Bishop is the ecclesiastical authority, except that, when there is no bishop, or upon his requirement, or when the bishop is disabled, the Standing Committee may be such authority. [Const, Art. IV; Canons: No. 12, Sect. V; No. 15, Sect V Subdiv. vi; No. 49, Sect. III.]
The Standing Committee having found the presentment it would seem that Dr. Crapsey's sentence may be to suffer suspension until he shall satisfy his prosecutors that upon all doctrines of the creeds he is orthodox in both belief and teaching. No canon, national or diocesan, seems to give to the Standing Committee of Western New York any jurisdiction over doctrinal matters. If the bishop be and act as the ecclesiastical authority, then such doctrinal authority is sought by the decision to be vested in him. But neither the constitution nor canons, national or diocesan, give the Bishop of Western New York any such jurisdiction.
The national canons provide that, [No. 35, Sect. I.]
"Whenever the penalty of suspension shall be inflicted * * * the sentence shall specify on what terms or conditions, and at what time, the penalty shall cease."
The canons of Western New York provide [13/14] [Ordinances, Sect. XIX, made part of the canons under Title Third, Canon Two, Sect. I.] that an ecclesiastical trial
"shall be conducted according to the principles of the Common Law as administered in this State."
Dr. Crapsey has by appeal from the judgment against him brought it before the Court of Review for the Second Department, which includes all the five dioceses of New York and two dioceses of New Jersey.
Court of Review for the Second Department, October 19, 1906.
Present:
The Right Reverend John Scarborough, D. D., Bishop of New Jersey.
The Reverend William R. Huntington, D. D., Rector of Grace Church, New York City.
The Reverend Alfred B. Baker, D. D., Rector of Trinity Church, Princeton, New Jersey.
The Very Reverend John Robert Moses, M. A., Dean of the Cathedral of the Incarnation at Garden City, Long Island.
The Honorable Charles Andrews, lately Chief Judge of the Court of Appeals of the State of New York.
The Honorable Frederic Adams, Judge of the Circuit Court, of New Jersey.
The Honorable James Parker, of Perth Amboy, New Jersey.
May it please the Court:
The cause which you are now to hear calls for the first act of justice to be done by any Court of Review of our Church. To no one of the courts first established in 1904 for the nine districts into which the Dioceses and Missionary Districts were then divided, has an appeal yet been brought, so far as we have learned, save only this one. Apart from its own questions, our cause gains, therefore, significance and dignity. Upon Dr. Crapsey's appeal will be exhibited first and most [15/16] conspicuously the standard and method and the measure of impartiality in judicial administration under the national auspices of the American Church.
It will, I am sure, be a satisfaction and, perhaps, a relief to the Court to know at the outset that neither in the presentment nor in the decision of the Diocesan Court from which Dr. Crapsey appeals, is there any imputation upon his honesty or sincerity. The tributes paid at Batavia by the prosecution to Dr. Crapsey's personal character would of themselves have negatived such an accusation had it been made. But no such accusation was made. Whatever Dr. Crapsey preached or published--whether it were right or wrong, orthodox or heterodox--there was and is no suggestion that it did not speak his own honest mind and conscience. Indeed, the very ground of the accusation against him is that he did speak out and did publish. If his opinions were heterodox and had been expressed only in conversation with his friends, this cause would not have arisen. It is often said, and with a force well nigh overwhelming and which, for one, I thoroughly concede, that it is an unfit thing that a priest of this Church or any minister of Christ's gospel, by using the prayers or creeds or formularies of the Church, should affirm, or seem to the people to whom he ministers to affirm, something that he does not himself believe. But that question, I thank God, is not in this case. If Dr. Crapsey have done wrong, you are bound by the terms of the record before you to assume and find that it was done honestly and sincerely.
It certainly was done openly, explicitly and courageously. There has been neither [16/17] concealment nor evasion on his part nor any such thing. There was nothing even in the presentment which could be construed to the contrary of Dr. Crapsey's sincerity except only the vague second specification of the second charge where it was said of him that he violated his ordination vow to frame and fashion himself according to the doctrine of Christ and to be a wholesome example and patron to the flock of Christ. But the Diocesan Court by an unanimous vote acquitted Dr. Crapsey of that charge; and it was hardly worthy the character of the Standing Committee ever to have made it. And from so much of the decision of the Diocesan Court the prosecution has taken no appeal. So that, without the possibility of dispute, the cause before you is free from so painful a question as one of sincerity or honesty.
It will further, I am sure, relieve the Court to know at the outset, that, although the presentment accused Dr. Crapsey of "advisedly" and "intentionally" denying or impugning the doctrines of the Church, the Diocesan Court, as I shall later and in more detail point out to you, unanimously exonerated Dr. Crapsey from any intention to impugn or deny any doctrine of the Church and from having done so advisedly. That he did in fact by his sermons and book impugn and deny such doctrines was decided by the court. But that, of course--and this I shall later and fully argue--is an utterly different thing from such denial or impugnment made intentionally and advisedly. The cause, Right Reverend President, comes, therefore, before you and your associates relieved of personal imputations upon Dr. Crapsey.
And may I ask you, at the threshold of my argument to lay aside, if you have formed it, any [17/18] notion that we shall ask in Dr. Crapsey's behalf for a present determination that the doctrines of the Virgin Birth and Resurrection of Our Lord were truly and strictly understood by him, or that in the sermons now under criticism, those doctrines were preached strictly as this Church hath received the same. If the reversal of the judgment of the Diocesan Court required that such a ruling be made before the meeting of the next General Convention Dr. Crapsey would not have taken this appeal. I suppose that, under the national canons of the Church, this present Court will not and may not determine any matter of doctrine, faith or worship until the General Convention of the Church shall put into practical operation the ultimate Court of Appeals for which its Constitution provides. Our appeal for an immediate reversal is concerned, however, with the manner in which the Diocesan Court administered the justice of our Church, and also with the profound and far-reaching question of Discipline for Heresy. If you cannot, for these things, grant an immediate reversal, then, and only then, we submit that it is your bounden duty to hold the cause until a General Convention shall enable you to determine the questions of doctrine involved in the presentment.
These matters of the procedure below and of Discipline are all within your undoubted and present jurisdiction. Upon the question of Discipline I dare hardly believe that I can add anything useful to the noble appeals made here and in the court below by my associate, Mr. Perkins, for a sound and Christian liberty of thought and speech in our Church. Fortunately for this Court the full text of his first address is in the account of the proceedings before the court below, printed by [18/19] one of the loyal and generous churchmen who stand by Dr. Crapsey's side in this ordeal; and copies of it will be at the service of the Court. But, though reluctantly, I have to perform--and in my own way--the duty assigned me. And I hope that what, before I close, I shall say upon the right and wise discipline of the truly catholic church of Christ will help, or at least not hinder, the strength of my associate's argument.
The canon requires that the counsel on both sides shall be communicants of the Church; and in that requirement there is implied a limitation upon the duty the counsel for the defense owe their client, a limitation which does not hold in a civil court. [National Canon 29, as adopted by the General Convention of October, 1904, Sect. XVII. All references to the Constitution and Canons, unless otherwise mentioned, are to those instruments as adopted by that Convention.] Here as there, upon matters of the personal conduct of our client or of procedure, we speak for him and not for ourselves. Our duty is different when we speak upon matters of belief and doctrine, or upon matters of fundamental policy involving the permanent welfare of the Church. Then we may not, as I conceive our duty, argue for anything in which we do not ourselves truly believe. When we speak upon those matters we speak under the vows which we ourselves took in baptism and confirmation. What we say may be wrong, but by it we must speak our own conscience. Upon those matters our duty is no different from that of Mr. O'Brian, the Church Advocate. At the meeting of the Court in September he spoke of himself as "of Counsel for the Church"; but upon these matters I suppose that he is no more "of counsel for the Church "than are Mr. Perkins and [19/20] myself. We are all, for the time, officers of this Court, all of us alike bound by really sacred obligations not, in the argument of matters of belief or doctrine or which fundamentally involve the Church's future, to go one scintilla beyond our own sincere convictions as to what is due the truth and the welfare of God's Kingdom ruling in and through this Church of our loyal devotion.
We cheerfully concede a like obligation upon the members of this Court. We can neither ask nor expect them to forego or suspend any of their convictions upon matters of belief or doctrine, unless by possibility the hearing of this cause shall bring them further light. We can and do ask, however, and respectfully assume, that we shall have from the Court, open minds, and not foregone conclusions, as to whether such convictions apply at all, or, if at all, then how much, to this specific case of church discipline here to be decided. According to the canon you sit here to administer "justice." [No. 29, Sect. XVIII.] If it be true, as we have been told, that in causes of this kind diocesan courts have deemed it their duty to carry out plans predetermined for them by ecclesiastical authorities, we rejoice that nothing of that kind is admissible in this Court; that we are truly before an impartial tribunal, ready hospitably to hear and learn of the specific case before it and its issues, and, if there be, as there may well be, preconceived notions of the merits, then utterly to surrender those notions for the time. Your judgment will thus proceed upon what is openly, in the face of the whole Church and all people, brought before it by the record and the arguments of the counsel. [20/21] The membership in the Court of these distinguished jurists trained to administer civil justice, the presentation of this cause by lawyers from the civil courts, as well for the Bishop and the Standing Committee of Western New York as for Dr. Crapsey, implies this; the canons and very title of the tribunal implies it; the sacred and exalted rank of the president of the Court, the sacred and important rank of his clerical associates requires it.
Dr. Crapsey is here, we rejoice to believe, in the protection of a true court of justice.
JURISDICTION OF THIS COURT. The Court may, under the canon,
"reverse or affirm in whole or in part the decision of the trial court, or, if in its opinion, justice shall so require, it may grant a new trial." [No. 29, sect. XVIII.]
No power is given to modify the judgment below, like that given, for instance, in express terms to the Court of Appeals of New York and to the Appellate Divisions of its Supreme Court. [Code of Civil Proc., Secs. 1317, 1337.] If, therefore, a new trial be not ordered, the judgment will be reversed, or it will stand as it now is, or some portion of it will stand as such portion now is, the rest being reversed.
If the Diocesan Court exceeded its jurisdiction or erred upon any material matter of right or procedure, then, of course, this Court must reverse. But if the judgment below survive such difficulties, then upon your reasons for an appellate judgment [21/22] of reversal or affirmance in whole or in part or an order for a new trial, there is no technical restriction--there is indeed no restriction whatever--except in the implied demands of justice and the law of the Church and in the canonical prohibition to "determine any question of doctrine, faith or worship" until after the establishment of the ultimate Court of Appeal. [Canon 29, Section V.] If, therefore, any ruling of the Diocesan Court--as, for instance, upon the application for delay until the cause could be heard by a court not altogether appointed by the prosecutors--were to seem unreasonable or unfair or inconsistent with the high and scrupulous rule of justice which the Church should enforce, this Court may, if it see fit, reverse for that reason. Nor is this Court limited, as appellate courts frequently are, by any requirement to accept findings of fact made by the court below. This Court would doubtless have been absolutely free to deal with the finding of the Diocesan Court, if it had made one, as it did not, that Dr. Crapsey had "advisedly" or intentionally held or taught a doctrine contrary to that held by this Church. While on the one hand the Court is by its very nature and the plain purpose of the canons limited to what justice permits, on the other hand, if the court below acted within its jurisdiction and its procedure were right, this Court may, with the sole exception of determination of any matter of doctrine, faith or worship until there shall be a Court of Appeals, reach its conclusion upon any reasons of canon law or wise policy or right or fairness or discretion which counsel may establish before it.
So it is clear--and this, may it please the Court, is a matter of the first consequence, to which I [22/23] shall again recur--that, even if the accused presbyter were, under the canon, liable to presentment and trial for holding and teaching publicly or privately and advisedly and intentionally any heterodox doctrine, nevertheless it was a matter for the exercise of sound judgment of the Diocesan Court, a judgment to be reviewed in this Court, whether it would pronounce the presbyter guilty and authorize his punishment accordingly. [No. 23, Sect. 1, Subdiv. (b).] There is no mandate that a presbyter shall be adjudged guilty for any and every teaching of unorthodox doctrine, even if it be done advisedly and intentionally. Whether his particular teaching of that character ought to produce his conviction and punishment is itself--after the fact is found--a grave question, requiring broad and far-seeing wisdom and sound discretion for its answer. If the Diocesan Court did not answer the question with such wisdom and sound discretion, then it is for this Court to apply the wisdom and sound discretion which ought to have been applied below. The doctrines held by our Church are manifold, some greater, some less. There are variations in the form or interpretation of perhaps every one of the hundred beliefs or doctrines which the Church holds. Whether to take what perhaps is an extreme illustration--error in the least of these and a preaching even advisedly of that error ought to suffice for an adjudication of guilt--the fact being found--must be matter for sound discretion. Otherwise the situation might be intolerable. Every breach of a canon is not to be the subject of a judgment any more than every violation of the law of the State is to be the subject of a criminal prosecution and conviction. The Church must have and [23/24] exercise some measure of indulgence and patience; and in this respect, when a presentment is made, the Court must, for the Church and as her representative, declare the limits of that measure. And this duty of pronouncing upon the fit measure of indulgence and patience belongs no less to this Court of Review than it did to the Diocesan Court. The whole question of Discipline, therefore, and the wise policy with respect to it required by the welfare and the sacred purposes of the Church are, since the canons of the American Church prescribe no hard and fast rule, fully within the power and duty of this Court to determine.
The exception that the Court may not "until after the establishment of an ultimate Court of Appeal * * * determine any question of doctrine, faith or worship," obviously leaves open to the Court every consideration of the discipline or sound policy of the Church which is consistent with predication of the orthodoxy of the doctrines which the Diocesan Court declared or assumed. So much, I take it, is in nowise open to argument, But has the Court jurisdiction to even hear matters of doctrine, as, for instance, to entertain discussion of the question whether belief in the spiritual resurrection of the spiritual body of Our Lord satisfy the Church's doctrinal requirement. I submit that the canons clearly confer such jurisdiction. While the prohibition is clear that the Court shall not, until the establishment of an ultimate Court of Appeals as permitted by the Constitution, "determine any question of doctrine, faith or worship," there are several plain provisions of the canons which require this Court to entertain and hear an appeal, even upon such a question.
In the first place, and conclusively, I submit, is [24/25] the present actual canonical grant of an absolute present right to a respondent, without waiting for the actual establishment of the Court of Appeals, to appeal to the Court of Review "from a decision which sustains in whole or in part a charge of any canonical offense." [Canon 29, Sect. VI.] A charge of preaching false doctrine, which can be dealt with only by predicating true doctrine, may thus lawfully be brought before a Court of Review. Obviously, therefore, the Court must at least entertain an appeal dependent upon a doctrinal definition. This is also and separately put beyond doubt by the express provision of the same section that, in case of acquittal in the Diocesan Court, an appeal may, upon the request of the bishops, be taken to the Court of Review, "provided, however, that such appeal shall be on the question of the Church's doctrine, faith or worship." [Canon 29, Sect. VI.] Here is an express right of appeal to the Court of Review upon doctrine. And this right is no less, although the Court of Review cannot "determine" the doctrinal question until there shall be an ultimate Court of Appeals.
Consider also the provision in case of affirmance of a conviction by this Court. If the charge were one of immorality, the appellant could not, pending the appeal from the Diocesan Court, exercise any ministerial functions. [Canon 29, Sect. 7.] But in other cases, including one like the present, an appeal not only suspends sentence, but leaves the accused in possession of all his priestly powers and subject to all Ms priestly duties. Then, if this Court affirm, and if no question of doctrine, faith or worship be involved in the decision, the Court must remit the [25/26] record to the Bishop or Standing Committee of the diocese from which the appeal came. [Canon 29, Sect. XIX.] If, however, the decision do involve such a question, then the canonical requirement is express that
"the record shall be retained by the President until the time for taking an appeal to the Court of Appeals shall have expired, and, if no appeal shall then have been taken as provided in the canon creating such court, he shall remit the record as in other cases."
Here is a positive mandate to this Court, if its decision depend upon any matter of doctrine, to retain its record until a future time perfectly identified whenever that time shall come. The fact that it may not come at all, because no General Convention may adopt a canon creating the Court of Appeals, is ignored. None the less the President of this Court must, where the decision involves doctrine, retain the record until the expiration, whenever, if ever, that may be, of the time for appeal to the Court of Appeals. There is no power, in such cases, to remit the record for enforcement at all until the expiration of that time. The future failure of the General Convention to adopt such a canon will mean that the inability of the intermediate Court of Review meantime to render any operative judgment in a case which it shall have heard argued, and which involves a question of doctrine, faith or worship--that is to say, in a case of heresy--is deemed less objectionable by the General Convention than the present organization of an ultimate Court of Appeals.
I submit it to be clear, therefore, that the canons mean that the Court of Review must entertain an appeal in a case, like this, which involves doctrinal [26/27] questions, a case indeed where the very validity of the judgment below absolutely depends upon an affirmation by the Diocesan Court of doctrine, and where there can be no affirmance in this Court without the affirmation or assumption of doctrine. The canons further mean that this Court shall hear argument even upon the doctrinal questions, and consider them, but that it cannot deliver any determination of such a question until the General Convention shall act. If it be said that a minister, guilty of immorality, might, by raising or affecting to raise a doctrinal question, indefinitely postpone his deserved deposition, the answer is that, if the Court of Review should ignore the doctrinal question and affirm, then, upon the assumption either of the truth or of the falsity of the doctrine, there would be no delay of the effective determination upon appeal. And a second and quite sufficient answer is that, in cases of crime or immorality, an appeal from a conviction by the Diocesan Court does not stay its practical operation; for, by the canon, as I have said, the convicted defendant is actually suspended from the ministry during his appeal. [Canon 29, Sect. VII.] It seems clearly to follow, that, if we are right, the Court can make and deliver a final and effective decision only if it do not imply affirmation or denial that the Church holds any specific matter of doctrine, faith or worship. If, therefore, in the present case, this Court could, as we suppose to be clearly impossible, sustain Dr. Crapsey's conviction, although the Standing Committee and the Diocesan Court were wrong in their views of what was doctrine of the Church--then and only then could it deliver a final determination.
[28] The situation which the canons thus create is, I suppose, anomalous--but not as anomalous and absurd as would be the situation if a Court of the superior dignity of this were limited to merely personal matters and matters of lesser discipline and shut out from the far more important questions of doctrine, faith and worship, while the Diocesan Court of inferior dignity held jurisdiction of those greater questions,--if the court of each of the seven dioceses of New York and New Jersey could determine doctrine, when this Court could not.
Upon the primary question of the jurisdiction of the Court we submit, therefore, that
I. The Court should entertain Dr. Crapsey's appeal upon all questions raised by the presentment against him, his answer and pleas, and the interlocutory rulings of the Diocesan Court and its final decision.
2. The Court should hear argument upon all such questions.
3. The Court should decide all the questions which are before it which may be ruled without assuming or denying any proposition of doctrine, faith or worship; and if a decision of such questions, excluding matters of doctrine, faith and worship, suffice for a decision of the cause, then the Court should make and deliver such decision. This would be the case if any of the more technical points presented by Dr. Crapsey's counsel, and to be discussed further on, were sustained. So would it be the case if the Court should rule with us upon the really great question of the sound policy of the Church as to Discipline. In any such case there could be a [28/29] reversal without any ruling or assumption in doctrinal matters.
4. But if the decision require--as obviously any affirmance of the conviction would require--determination that the propositions of doctrine and faith upon which the presentment and the judgment below were based, are sound, then the decision must be withheld until such time as the General Convention shall permit it by the creation of the ultimate Court of Appeals, to which appeal can be taken to secure uniformity of doctrine and interpretation throughout the whole American Church.
CRITICISMS UPON PROCEDURE OF THE DIOCESAN COURT. It is with sincere regret that, in a cause which in its broad aspects is concerned with the sacred purposes and scope of our Church, I must thus first and at length deal with these more technical matters of jurisdiction and procedure. It would be refreshing to me and perhaps less tedious to you if I could leave them for things deeper and less arid. But my duty forbids me to forget that this is a Court which must fitly, and even nicely, consider its own powers. Nor can I forget, Rt. Rev. President, that, before proceeding to greater questions, you and your clerical and legal brethren will necessarily insist upon knowing whether the court below acted according to its powers and the elementary rules of justice. I must, therefore, delay my discussion of the Discipline of a truly catholic Christian church and the limits of her indulgence in doctrinal interpretation. Apart from questions of Discipline and Doctrine [29/30] can this judgment of the Diocesan Court be sustained? Truly I believe not.
A case of ecclesiastical discipline, it is well settled, is quasi-criminal or a case of strict right. If it go against the accused he loses his office and with it his income and livelihood, as well as the dignity and duties and the right of the office and its right in the ecclesiastical property. [Jennings v. Scarborough, 27 Vroom, 401.] The presumptions and intendments are in favor of the accused. We rightly, therefore, hold this prosecution and the court below strictly to the case made by the presentment. Nothing else can have been rightly adjudged. This was ruled by the English Privy Council with the concurrence of the Archbishops of Canterbury and York and the Bishop of London on the prosecution of Dr. Williams, one of the authors of the book "Essays and Reviews." The Court there said:
"These prosecutions are in the nature of criminal proceedings, and it is necessary that there should be precision and distinct ness in the accusation." [Williams v. Bishop of Salisbury, 2 Moore P. C. (N. S.) at page 423.]
So, in the case as to the Real Presence, the last heresy cause adjudged by the Privy Council, it was held, the Archbishop of York and the Bishop of London concurring, that, in case like this against a presbyter, it is the duty of the Court, as these proceedings are highly penal, to construe in his favor every reasonable doubt. [Record, page 81.]
The counsel for the prosecution upon the trial at Batavia admitted this, Mr. O'Brian himself saying:
[31] "I admit the law as laid down by Mr. Perkins to be the law, that you cannot bring a man up charged in an indictment or a presentment with one offense, and then proceed to convict on another; we all agree on that." [Record, page 81.]
And the Diocesan Court having asked its assessor to rule for it, he sustained the proposition. [Record, pages 84, 85.] So also that court in its final decision refused to permit amendment of the presentment. [Record, page 133.]
And no power has been given this Court to permit such an amendment.
In the next place, the Court will remember that, under the canons of Western New York, the Diocesan Court, upon convicting the defendant, was required to prescribe the maximum punishment, and that to such maximum the Bishop would be confined. This was as true and integral a part of the judgment as the finding of heretical teaching. Testimony bearing upon the measure of penalty was strictly admissible. In a criminal court of New York or New Jersey, the jury answer merely the question, "Guilty or not guilty;" but they do not prescribe punishment. That is for the judge to determine after verdict; and he then hears anything fitly bearing upon the measure of the penalty. The Diocesan Court, however, being both jury and judge, and being bound, by a single act or order, as the result of the trial, to adjudge innocence or guilt, and, if guilt, the maximum fit punishment, it was obviously bound to receive whatever might be helpful to a correct conclusion upon either one of the two parts of its judgment.
[32] And so, with equal clearness, the Diocesan Court was bound to fit, and must in this Court be conclusively presumed to have fitted, the maximum punishment it prescribed to the offense then adjudged. If there had been three offenses, the punishment presumably would be more than if there had been two; if only one offense, it would presumably be less than if there were two. Dr. Crapsey was convicted of three separate offenses separately charged; but upon these three together a single punishment was prescribed adequate to both of them together. If either conviction were erroneous then the maximum limit of punishment was erroneous, and the entire judgment must of necessity be reversed.
With these preliminary considerations, I now beg the attention of the Court to specific errors of procedure in the court below.
FIRST: UNDER CHARGE I, SPECIFICATION I, DR. CRAPSEY WAS CONVICTED OF AN OFFENSE WITH WHICH HE HAD NOT BEEN CHARGED AND FOR WHICH HE HAD NOT BEEN TRIED.
This specification was
"That at divers times during the years 1894 and 1905 the said presbyter did openly, advisedly, publicly and privately, utter, avow, declare and teach doctrines contrary to those held and received by the Protestant Episcopal Church in the United States of America, by the delivery of the sermons thereafter published in said book 'Religion and Politics,' and among other statements in said sermons in particular by the use therein of the following language:" (here following the fifteen passages under criticism).
[33] The offense was the delivery of sermons and not the publicationt of a book. The presentment had already pleaded that these statements had been
"made and uttered and * * * the sermons * * * delivered by the said Reverend Algernon Sidney Crapsey in his official capacity as a presbyter of the Church and rector of the said St. Andrew's Church." [Record, page 3.]
The book was not pleaded to have been published by Dr. Crapsey in any such capacity; and of course, in fact, it was not. Whether his unofficial publication of the book would or would not have been an offense, certain it is that that was not the specification. Official preaching in a pulpit and unofficial publication of a book may be equally right or wrong; but that they are perfectly distinct, each with its own qualities, is open to no doubt whatever. Remembering that this is a proceeding of a quasi-criminal nature, that every presumption is with the accused, and that the court below was powerless lawfully to act upon any case not brought before it by the presentment, I am unable to see that the question of the distinction between these offenses is really susceptible of debate.
It was on this account that the book "Religion and Politics," when offered, was objected to by Dr. Crapsey's counsel and rejected as evidence, although the parties were permitted, according to a later ruling of the court,
"to quote from this book, to refer to the context as far as it may tend to explain the charges." [Record, pages 50, 51, 121, 122.]
Now, when we turn to the decision, we find [33/34] no conviction according to this specification, but, legally speaking, a conviction for the utterly different offense of a publication of a book. The findings below are only these: [Record, pages 130-131]
1. Of Dr. Crapsey's official position.
2. That he published in 1905 in book form "a series of sermons theretofore delivered by him in his official capacity, as the rector of St. Andrew's Church, and said book was published and caused to be sold and circulated by the said defendant."
3. That contained in said book and prepared as a part thereof by the said respondent are the matters and statements set forth in said presentment."
Then (after a fourth finding about the sermon of December, 1905) is the legal conclusion of the Court with respect to the said matters and things written and published by said respondent." So that the conviction, so far as concerns the first specification, was for something of which Dr. Crapsey was not accused. The Diocesan Court below, there being no such accusation, was utterly without power to try for the offense; and the judgment must fail so far as it depends upon Charge I, Specification 1.
SECOND: THE CANONS OF VIOLATION OF WHICH DR. CRAPSEY WAS ACCUSED WERE NOT IN FORCE UNTIL JANUARY I, 1905; AND AS THERE WAS NO PROOF OF THE DELIVERY AFTER THAT DATE OF ANY SERMON PRINTED IN "RELIGION AND POLITICS," HE COULD NOT BE CONVICTED FOR SUCH DELIVERY.
This proposition needs little argument, for it [34/35] was in effect conceded by the Diocesan Court. The charges were express and solely these: First, that Dr. Crapsey had "violated canon 23 of the general canons of the church, and, in particular, subsection (b) of section 1 thereof;" and, secondly, that he had "violated canon 23 of the general canons of the church, and, in particular, subdivision (f) of section 1 thereof." [Record, page 439.]
Dr. Crapsey's counsel raised the point on the trial. [Record, page 129.] Judge Stiness for the prosecution, while disputing the proposition, urged that an amendment of the presentment should be permitted to cure the difficulty. A motion was thereupon formally made by the prosecution to amend the presentment so as to charge violation of the former canon which was in force in 1904; the Diocesan Court took the motion under consideration, and in its final decision denied it. [Record, page 133.] The presentment alleged delivery of "a series of the sermons in the years 1904 and 1905"; but there was no evidence that any of the sermons said to be heretical were delivered in 1905. [Fuller Copy of the Proceedings at Batavia, page 234.]
It was obviously for this reason that the court below abandoned delivery of the sermons as the gravamen of the offense and instead convicted Dr. Crapsey of the offense of publishing a book.
[36] THIRD: THE CANONICAL OFFENSE SET FORTH IN CHARGE I WAS THE HOLDING AND TEACHING HERETICAL DOCTRINES "ADVISEDLY" WITH INTENTION TO IMPUGN ORTHODOX DOCTRINE, BUT NO SUCH OFFENSE IS FOUND BY THE DECISION.
This point is clear as matter of technicality; but it is far more than technical. It involves a plain question of plain justice.
When canon 23, section I, subd. (b), made such holding and teaching of heretical doctrine an offense only if done "advisedly," it took over the ecclesiastical law prevalent in England in like cases. [In every English case for heresy which I have examined, including those referred to in this argument, the charge set out the doctrine held by the Church, and then as in this presentment, accused the respondent of advisedly impugning the doctrine.] Unless there were intention to contravene some doctrine, there was no offense. In this respect there is an analogy between an ecclesiastical prosecution, which, as I have already shown, is held to be quasi-criminal, and strictly criminal cases. In such case the indictment must charge that the act was done knowingly and wilfully, that is to say, advisedly and intentionally. [Bishop; New Criminal Procedure, vol. II, § 521.] There needs to be no proof that an accused knew the specific law which he violated, for every man is conclusively presumed to know every law. But there is no crime unless the thing itself done were done knowingly and wilfully, nor a valid indictment unless that be clearly charged. In the present case the law said to be violated is canon 23; and doubtless Dr. Crapsey must be presumed to have known it.
Perhaps the Diocesan Court might, as matter of [36/37] mere power, have inferred intention and the "advisedly" heretical character of his preaching from the sermons or book without other proof of intention. But none the less the intention to be heretical had to be charged and found by the Court; and any evidence bearing upon intention was admissible.
The thing said to have been done was the preaching of doctrines impugning the doctrine of the Church; and there would be no offense unless that were done "advisedly" and intentionally. This was perfectly recognized in the presentment itself, which, under Charge No. 1, Specification 1, alleged [Record, page 4.] that Dr. Crapsey did "advisedly, publicly and privately utter, avow, declare and teach doctrines contrary to those held " * * * (page 8) "it being intended by said language, words and terms to express the presbyter's disbelief." Charge I, Specification 2, did not allege that by the sermon of December 31, 1905, Dr. Crapsey "advisedly" uttered doctrine which was heretical; but it did allege his intention as follows: "it being intended by the said language, words and terms to express the presbyter's disbelief," etc. [Record, page 9.] It needs no argument that a clergyman called upon to preach a hundred sermons a year besides doing his parochial work and keeping up the sacred and diligent study to which his vows bind him, is not to be held to mistakes in doctrine into which he unwittingly falls--denials of doctrines which he unwittingly makes. Every bishop, every presbyter--yes, every layman--knows that now and then the most sincere and orthodox in thought and [37/38] speech fall into error. That is to say, the clergy are human. We have before this Court a striking illustration of what I am saying in this very presentment where the Rt. Rev. Bishop, and the doctors of divinity and laymen on the Standing Committee, beyond doubt and most sincerely meaning to be orthodox declare the doctrine of the Church to be that "Our Lord Jesus Christ is God." [Presentment; Record, p. 9.] And yet, if I understand theology aright, this statement is the famous Patripassian heresy, a perversion of the doctrine of the Trinity always rejected by our Church. Certainly the doctrine thus affirmed by the presentment is nowhere stated in its creeds or articles or formularies or prayer book. [Encyc. Britt.: Articles on Jesus (vol. XIII. at p. 671 ); on Sabellianism (vol. XXI, p. 127); Monarchianism] (vol. XVI. p. 719). The derivative as distinguished from the absolute Godhead of the Son "begotten of his Father before all worlds" is emphasized by the Nicene Creed, and is represented in the second petition of our Litany.] If we were to prosecute for heresy those who signed this presentment we should have to allege and prove that they had erred "advisedly;" and this we could not do. They fell into an error; but they did not advisedly or intentionally impugn orthodox doctrine.
Since, then, there was canonical offense only if Dr. Crapsey preached error "advisedly," "intending" so to do--since that is the offense charged by the presentment--the decision had to find him guilty of that very offense. Otherwise the decision was without authority. The decision does not find him so guilty. There was no general verdict or judgment of "guilty," the finding being this, and only this:
"We find the respondent guilty of the [38/39] charges set forth in the presentment to the extent now here stated."
This absolutely excludes any implication, without expression, of findings necessary to sustain the judgment. The judgment depends absolutely upon the findings "to the extent here stated." That is to say, Dr. Crapsey was, except to that extent, acquitted.
Then follow the two items of the finding under Charge I, Specification 1:
1. "That by his writings * * * the respondent impugns if he does not express disbelief in and denial of the doctrines" of the Trinity and that Jesus Christ is God.
2. "That in the said writings * * * said respondent expresses his disbelief in, and impugns and denies the doctrines of the Conception by the Holy Ghost, the Virgin Birth and the Resurrection.
You will observe that here are bald findings that Dr. Crapsey's writings impugn and deny orthodox doctrine--not that he intended to deny them or supposed he was doing so or did so advisedly.
A like finding was made under specification 2. Here also was not a word of intention or of error "advisedly" committed. Not a suggestion. The verdict was of guilt only "to the extent here stated"; and the extent stated excluded intention or any doing advisedly of a wrong.
It would seem, indeed, that the Diocesan Court did not overlook this essential feature of the case. For, in the recitals of the decision, is given verbatim from the presentment, for verbal convenience in identifying doctrines, the words "It being intended by said language," etc. With that allegation [39/40] freshly before its eyes, copied out by itself as one of the allegations with which it had to deal, the Diocesan Court excluded as I have said, the "advised" and "intended" character of Dr. Crapsey's acts.
And Dr. Crapsey has said, and this Court, I think, will believe him, that he never advisedly or intentionally preached or published anything which impugned the doctrine of the Church. Such was his formal answers to the presentment. Such also was his impressive statement read by Mr. Perkins. [Record, page 131.]
The judgment of the Court below, taking its text in connection with the texts of the presentment and answer, is therefore in substance this: What Dr. Crapsey did was to publish a book or preach a sermon which impugned or denied doctrines of the Church; but such impugnment or denial was not made by him advisedly or intentionally. Now this, I submit to be clear beyond a possible doubt, was not an offense under any canon or in morals. The judgment, ought, therefore, to be reversed.
FOURTH: THE CONVICTION SO FAILING UNDER BOTH SPECIFICATIONS OF CHARGE I AND THE PUNISHMENT HAVING BEEN PRESCRIBED UNDER THEM AS WELL AS UNDER SPECIFICATION I OF CHARGE II, THE JUDGMENT SHOULD BE REVERSED.
I have already shown sufficiently that an integral and essential part of the decision was the prescription of a maximum punishment. The punishment was, of course, intended to fit the offense. In [40/41] the mind of the Diocesan Court it fitted Charge I and Charge II together, and not Charge II only. It fitted, in the mind of that Court, the offenses found under both specifications of Charge I, and one specification, the first, of Charge II. The punishment was to be mated to the seriousness of the three offenses, the persistence in them, their number, their quality.
The Diocesan Court, as I have already said, acquitted Dr. Crapsey under specification 2 of Charge II. That specification, the Court will remember, accusing Dr. Crapsey of violation of his vow to frame and fashion himself and his family according to the doctrine of Christ, and to make himself a wholesome example and pattern to the flock of Christ. The specification was in effect abandoned on the trial; it was rejected by the Court, and it was one unfit and unseemly ever to have been made at all. If then Charge I fail entirely, as I have submitted it ought, there remains only Charge II, specification 1; that is to say, one out of the four accusations in the presentment.
The punishment having been fixed for two offenses under Charge I and one under Charge II, and the former having been erroneously found, the punishment is presumably wrong. And if wrong, the judgment should be reversed. For, as I have already pointed out, this Court of Review under the canon has no power to modify or vary the judgment, but may only reverse in whole or in part. [Canon 29, sect, xviii.]
[42] FIFTH: THE FINDING UNDER SPECIFICATION I OF CHARGE II OF A VIOLATION OF ORDINATION VOWS BEING BASED SOLELY UPON THE FINDINGS UNDER CHARGE I OF PUBLISHING OR PREACHING THINGS WHICH IMPUGNED OR DENIED DOCTRINE OF THE CHURCH, BUT NOT ADVISEDLY OR INTENTIONALLY, SUCH FINDING UNDER CHARGE II WAS ERRONEOUS.
Specification 2 under Charge II having been rejected by the Diocesan Court, there remains only specification 2, which that court sustained, but only to this extent:
"That the accused did, by said utterances contained in said book and sermons and quoted as aforesaid in the presentment, violate and break the following declarations made by him at the time of his ordination"--(there being then quoted the vows of belief in Holy Scriptures, to conform to the doctrine of the Church, etc.) [Decision, Record, page 132.]
The court below having rejected the accusation of the presentment that Dr. Crapsey's heresies had been uttered advisedly and intentionally to impugn doctrines of the Church--that is to say, that court having acquitted Dr. Crapsey of intentionally or advisedly committing his errors--I submit that they could not rightly be held--certainly not in this which is a quasi-criminal prosecution--to constitute violation of the ordination vows. In this very finding the Diocesan Court declined to insert any statement of intention. Unadvised and innocent errors--mere mistakes in understanding doctrines--surely it is not against these that such vows are directed or for which the canon prescribes punishment. [42/43] For them there might properly be sound advice, fatherly or brotherly instruction or remonstrance. But as the vows were supposed to come from the heart and will of the postulant or deacon, so the only violation of these fit for ecclesiastical condemnation must come from the heart and will of the presbyter.
The second and third vows were of "faithful diligence" to minister sound doctrine and banish error. It needs no argument that violations of these obviously could not be predicated of unadvised and unintentional error or mistake.
The Diocesan Court, like this Court, is not a court of general jurisdiction; it could act only validly or effectually within the powers expressly conferred upon it by the law of the Church and only in the manner prescribed to it by that law. Upon this branch of the case we submit, therefore, that Dr. Crapsey's exoneration by the Diocesan Court from intentional or advised infringement upon sound doctrine deprived that court of any right whatever to render a judgment against him; that such judgment on its face is erroneous; and that it would not be enforceable within the law of this Church or within the law of the land.
SIXTH: THE DIOCESAN COURT ERRED IN UNDERTAKING TO RULE AT THIS TIME UPON QUESTIONS OF DOCTRINE AND FAITH.
Upon this I can add nothing to Mr. Perkins' argument. If this Court of Review, representing the seven dioceses of New York and New Jersey, can, for the present, deliver no determination upon matters of doctrine, faith or worship, it ought to be clear it would seem, a fortiori, that a diocesan [43/44] court should not rule upon such greater and deeper questions.
SEVENTH: THE DIOCESAN COURT ERRED IN NOT GRANTING Dr. CRAPSEY'S APPLICATION FOR PROPER TIME TO PREPARE FOR TRIAL, AND TO PERMIT THE CAUSE TO BE HEARD BY AN IMPARTIAL TRIBUNAL NOT CONSTITUTED BY THE PROSECUTORS.
Here was a presentment taking fifteen passages from sermons and comparing them for doctrinal accuracy with the prosecutors' statements of mighty doctrines of the Church, the divine nature and personality of Our Saviour, His Resurrection, the mystery of the Trinity. Here was a presentment imputing intentional error upon those matters to a clergyman after a sacred and unblemished service of thirty-two years. Here was a presentment imputing to him upon many occasions during the years 1904 and 1905 violation of his vows in his ministration of the sacraments and in the manner in which he framed and fashioned his family and himself. Here was a presentment involving Dr. Crapsey's priesthood and his career for the entire remainder of his life. If in any cause a court, intelligent and anxious to do right, would be deliberate--if in any cause such a court would make sure that the defendant was permitted a fair and truly sufficient preparation, for the sake of the Church even more than for him--surely this was the cause. Dr. Crapsey was then in sole and active charge of a parish church with 342 families and 614 communicants; he was then holding three services a Sunday and without an assistant; the Committee of Investigation had in 1905 declared [44/45] that there ought not to be a presentment; and the Standing Committee had found it not inconsistent with the welfare of the Church to wait many months after the publication of "Religion and Politics." They chose to launch their presentment on March 2, the next day after Ash Wednesday; and the second day after Easter was appointed for the trial. Besides all his other and necessary work Dr. Crapsey had alone during this time to carry on the most laborious and important services of the whole year during the Church's season of fasting and prayer. Over and beyond all these he was now required to prepare his defense to charges so grave and far reaching, involving his whole career and work and of mighty moment to the Church of his life-long and loyal love. The apparent reason for the haste of the majority of the court (the Rev. Mr. Dunham voted to grant the application for delay) made their error far more serious. The court, rather than take Dr. Crapsey's compulsory default tendered by Mr. Perkins, [Record, page 25.] granted a delay of eight days from April 17th to April 25th; and Dr. Crapsey's counsel upon the latter day submitted the same reasons for a reasonable adjournment of a few weeks. [Record, including letters, pages 34-42.] And besides they filed a special written plea, [Record, page 28.] showing that all the members of the court had been appointed or selected by the Standing Committee and Bishop; that on the next May 15th, only three weeks distant, the Diocesan Council of Western New York would be held; and that, under the [45/46] canons of the diocese, the Council would chose a new Standing Committee and also a new Diocesan Court from ten presbyters nominated by such new Standing Committee. [Canons of Western New York, Title Third, Canon I, Sects. II and III.] That is to say, a delay of only twenty-one days in this critical and far-reaching matter would enable the Supreme Council of the diocese to provide an impartial court, or to rule that the present court was impartial.
That there should be such a reasonable delay was enforced upon the court by a petition to the Bishop numerously signed by a most distinguished and representative body of the clergymen and laity of the Diocese, among them Rectors of St. Thomas Church, Trinity Church and the Church of the Ascension, Buffalo, and St. Luke's and St. Paul's Churches, Rochester, and the President and Chaplain of Hobart College, Geneva, an important and the only college in the diocese under Protestant Episcopal auspices. [Record, page 19.] They declared that, if the trial were not to be so delayed, it would be "impossible to disarm criticism of the fairness and justice of the result" and that criticisms would "surely follow to the lasting injury of the Church." In this respectful and solemn remonstrance the unfairness was thus declared:
"Thus a majority of the members of the court will have been appointed by the Standing Committee and not elected by the Council. But the Standing Committee is the accuser of Dr. Crapsey."
[47] I remind this Court of Review that the canons of Western New York provided that
"the trial shall be conducted according to the principles of the common law as administered in this State." [Ordinances for the Ecclesiastical Court, § xiv.]
And I declare it to be my positive conviction that, in a like situation any civil court of the State of important rank, would have held that to secure impartialty of the tribunal, which is a fundamental, perhaps the most fundamental, requirement of the common law, a postponement (certainly one no longer than twenty-one days) was peremptorily required. Nothing is or ought to be so abhorrent in any process of justice as a court packed by one party, however innocent of such an intention as the party may be. Would a Governor of New York, having a cause of his own ready in 1905, delaying its prosecution until 1906, and meantime himself appointing judges, dare to press his cause before them, or would such judges hesitate a moment to delay the cause twenty-one days until there should be on the Bench judges not appointed by the plaintiff?
EIGHTH: THE TESTIMONY OF MANY DISTINGUISHED CLERGYMEN AS TO THE UNDERSTANDING AND PRACTICE OF THE CHURCH WAS ERRONEOUSLY REJECTED BY THE DIOCESAN COURT.
It was certainly an incident to impress a pious and wise churchman praying for a benign and universal spread of our Church that so many distinguished rectors doing great and living work should [47/48] have come to Batavia to stand by Dr. Crapsey and to testify their opinion that, as they understood and had known the Church, it had permitted the method and liberty of interpretation which he had used. With them, or perhaps going beyond them, and clearly in the open, were the many times greater numbers who had signed the recent Declaration by English and American clergy and laity.
A court anxious for light might well have listened to the testimony of these witnesses. They might fitly have done this even, if, strictly speaking, they considered the testimony inadmissible. But it was strictly admissible. It bore clearly upon the accusation that Dr. Crapsey had intended to impugn orthodox doctrine or had done so advisedly. Upon the question whether his sermons were innocently mistaken, that is to say, upon the question of intention, it was clearly admissible.
Moreover, the Judicial Committee of the Privy Council, the highest ecclesiastical tribunal for our brethren of the English communion, had ruled that such opinion testimony was admissible in a case like this, although it would not be in cases affecting property. In the prosecution of the Rev. Charles Voysey in 1870 and 1871 for heresy, the Judicial Committee (including the Archbishop of Canterbury and the Dean of the Arches) expressly so ruled. [Noble vs. Voysey, L. R., 3 Priv. C. Appeals, p. 357, at pp. 385, 386.] The Lord Chancellor speaking for the whole court, said:
"But it is to be observed, that in inquiries of the nature now before us, this Committee is not compelled, as in cases affecting the right of property, to affix a definite [48/49] meaning to any given Article of Religion the construction of which is fairly open to doubt even should the Committee itself be of opinion (on argument) that a particular construction was supported by the greater ' weight of reasoning. Thus, Lord Stowell, in the case of "Her Majesty's Procurator vs. Stone (1 Hag. Cons. Rep., 429), thus expresses himself:
"'I think myself bound at the same time to declare that it is not the duty nor inclination of this Court to be minute and rigid in applying proceedings of this nature, and that if any Article is really a subject of dubious interpretation it would be highly improper that this Court should fix on one meaning, and prosecute all those who hold a contrary opinion regarding its interpretation. It is a very different thing: where the authority of the Articles is totally eluded, and the party deliberately declares the intention of teaching doctrines contrary to them.'
"We have thought it right to refer to the canons of construction thus judicially expressed, because on the one hand they allow to the party accused a fair and reasonable latitude of opinion with reference to his conformity to the Articles and Formularies of the Church, and on the other they afford no sanction whatever to the contention of Mr. Voysey, that unless there be found in the publication complained of a contradiction, totidem verbis, of some passage in the Articles, he is at liberty to hold, or rather to publish, opinions repugnant to or inconsistent with their clear construction.
"As regards those Articles of Religion as to the construction of which a reasonable doubt exists, the question may arise how far opinions of a similar character to those charged to be heretical, have been held by eminent Divines without challenge or [49/50] molestation, because the proof of their having been so held may tend to show the bona fides of the doubt. In this respect also we have ample guidance from authority; and it will be found that, where the Article in question is subject to reasonable doubt, and eminent Divines have held opinions similar to those impugned in the case before the Court, that circumstance alone has been held to be of great weight in inducing the Court to allow a similar latitude of construction to the party accused, without itself deciding upon the construction of the Articles."
How can it be said--if Dr. Crapsey's intention advisedly to impugn orthodox doctrine be of any moment in this cause--that the opinions and expressions of other, many, unimpeached and distinguished clergy was irrelevant to the issue presented by the presentment and answer.
There was a further and all sufficient reason for the admission of the testimony. The Court will observe the relevance and competence of the testimony to the maximum measure of punishment which, if Dr. Crapsey were found guilty of heresy, it would be the duty of the Diocesan Court to prescribe. That Dr. Crapsey's error, if he erred, were committed through his sharing with a great and representative body of professional brethren of the highest and unimpeached standing views of the comprehensive liberty which the Church allowed him, was surely a fact which a court in prescribing punishment would be bound to consider.
[51] NINTH: THE DIOCESAN COURT ERRED IN PRESCRIBING DR. CRAPSEY'S INDEFINITE AND UNCERTAIN SUSPENSION UNTIL HE SHOULD "SATISFY THE ECCLESIASTICAL AUTHORITY OF THE DIOCESE" OF HIS ORTHODOXY "IN HIS BELIEF AND TEACHING."
This proposition is conclusively argued by Mr. Perkins; and it is perhaps presumptious for me to argue it further. I venture, however, to ask the Court to note the requirement of the constitution of the National Church, Article IX, that
"A sentence of suspension shall specify on what terms or conditions and at what time the suspension shall cease."
And the national canon, No. 35, sect. I, provides that,
"Whenever the penalty of suspension shall be inflicted on a Bishop, Priest or Deacon in this Church, the sentence shall specify on what terms or conditions and at what time the penalty shall cease."
This simply applied to ecclesiastical judgments in our Church the rule of certainty required in civil courts upon trials for crime. Except where the Penal Code authorizes indeterminate sentences, as the canon does not, the time must be precisely ascertainable. This has been repeatedly decided. [People ex rel. Johnson vs. Webster, 92 Hun, 378. Gibbs vs. State, 45 N. J. L., 379.] Here the time may be one day or it may be the whole remainder of Dr. Crapsey's life, even if he shall live to the age of the Beloved Disciple.
But this, although a sufficient difficulty, is not [51/52] the most serious one. What is the "Ecclesiastical Authority" which is to be "satisfied." Is it the Standing Committee, which according to sect. III of Title 7 of the diocesan Constitution of Western New York,
"shall be the Ecclesiastical Authority in all cases provided for by the General Constitution and canons of the Church?"
Is this, which is a prosecution under the general canons of the Church, a "case provided for by" them? If so, as it seems to be, we have as the sentence simply this, that Dr. Crapsey shall be suspended, that is to say, punished, as long as his prosecutors deem proper; that is to say, as long as they wish.
The Standing Committee are the prosecutors, the complainants in the cause. Such a punishment would be abhorrent not only to the principles of the common law, which are to prevail under the canon of Western New York, but to the most fundamental notions of justice. [Ordinances for the Ecclesiastical Court, Sect. XIV.]
The national canons and those of Western New York certainly assume that the Bishop is the Ecclesiastical Authority within the jurisdiction assigned to him, although I find no express provision to that effect. [Constitution of National Church, Articles IV, V. National Canons, No. I., Sect. IV; No. 3, Sect. I; No. 4, Sect. I; No. 6, Sect. II; No. 12, Sect. V; No. 48, Sect. III. Constitution of Western New York, Title Two, Sects. I, III; Title Seven, Sect. II. Canons of Western New York, Title Four, Canon 4, Sect. I.] In certain cases, mostly, but not all, of absence, vacancy or disability in the episcopate, the Standing Committee is expressly [52/53] made the Ecclesiastical Authority. But obviously, whether the Bishop or the Standing Committee be the Ecclesiastical Authority, he or they are such only with respect to authority or power conferred by the national or diocesan constitution or canons. And, as Mr. Perkins clearly shows, no power to determine any question of doctrine or faith, any question of orthodoxy, is anywhere conferred upon either the Bishop or the Standing Committee. If in the diocese of Western New York there be any such Ecclesiastical Authority it must be the Diocesan Court in cases before it involving doctrine, or perhaps the Diocesan Council by reason of its power, when exercised with the assent of the Bishop, or, without his assent, by a two-thirds vote to amend the diocesan constitution. [Canons of Western New York, Title Ten, Sect. I.]
There is, therefore, no such Ecclesiastical Authority as the Diocesan Court assumed; the sentence prescribed is vague and uncertain; and the judgment, therefore, erroneous.
If the Bishop could be held to be sufficiently identified as the Ecclesiastical Authority, and if he had a function with respect to doctrine, then we should have a result, less abhorrent doubtless than if the Standing Committee were so identified, but nevertheless absolutely and profoundly repugnant to the common sense of justice and intolerable for a court administering justice. With great deference to the Bishop of Western New York, it must be remembered that he himself is a prosecutor; for he has " approved" these charges. And, whether or not a prosecutor, he is not a court. If he be the "ecclesiastical authority" then the sentence is one of suspension at his pleasure, [53/54] perhaps for one day, perhaps for the remainder of Dr. Crapsey's life.
There is a further and serious difficulty. The sentence was not one of suspension until Dr. Crapsey's belief and teaching should in truth and fact accord with the creeds, but until the Ecclesiastical Authority should be "satisfied." No matter how orthodox Dr. Crapsey should become and no matter how long his suspensory punishment should have been, it would continue until the faculties of one man or of a body of men should have been "satisfied."
Nor is any means provided of ascertaining the "satisfaction" of the authority. After Dr. Crapsey shall be duly enlightened or submissive about doctrine, and the authority shall be "satisfied" how is such satisfaction to be proved or ascertained? Who is to declare it and how? For the Ecclesiastical Authority is not, by the judgment, required to make any declaration; nor does the judgment make the declaration sufficient. Is a word to Dr. Crapsey sufficient, or a letter to him, or a formal statement to the Ecclesiastical Court or the Diocesan Council? Is such a letter or statement final, or is it revocable by the Ecclesiastical Authority upon second thought?
There is still another and almost humorous anomaly in this most anomalous penalty. Dr. Crapsey, it would seem, is to be suspended until he satisfy the Ecclesiastical Authority "that his belief and teaching conform to the doctrines" of the Creeds. During his suspension, however, he must not teach. For the time being, and as part of his punishment, he is prohibited from teaching. Since then he cannot teach at all, his teachings will obviously not conform to doctrines sound or [54/55] unsound. The Court could not have supposed that, while he was partially excluded from any service whatever as a priest he would be invited to service in a church or seminary of sacred learning. Nor could it have intended that, as a condition of terminating his suspension, he should teach the doctrines of our Church in some non-church society or school. The condition, as intended by the Court, is impossible.
And why, we may reasonably ask, is Dr. Crapsey to convince his superior that all doctrines believed or taught by him are sound? He was accused of heterodoxy in only two points; but the sentence requires him, a presbyter of thirty-three years standing, to show that not only has he recovered from such heterodoxies, but that in beliefs and teachings of his never doubted by any one, and upon the great mass of orthodox doctrine in no way involved, he is sound.
Beyond any doubt whatever any such sentence as was prescribed in the Diocesan Court, would be void if pronounced in a court of this State. I do not believe you will hold it valid for an ecclesiastical court of our Church.
TENTH: THE DIOCESAN COURT ERRED IN ACCEPTING MR. ALEXANDER'S TESTIMONY AS PROOF OF THE SUPPOSED QUOTATIONS FROM THE SERMON OF DECEMBER 31, 1905.
This testimony did not bind Dr. Crapsey to become a witness, or otherwise to be held to have conceded its truth. Before he needed to take the stand and open prolonged and indefinite vistas of cross-examination upon his views on all the doctrines of the Church, the need was upon the [55/56] prosecution to establish its case by testimony fit for acceptance by the tribunal. And Mr. Alexander's testimony was not fit for such acceptance. Every presumption being, of course, in favor of Dr. Crapsey's innocence of the charges until they were sufficiently proved, the Alexander evidence did not furnish the sufficient proof. It would have been rejected by a jury in a civil court.
Here was an assistant minister on terms presumably of tender and sacred intimacy with his rector. He had heard the rector preach the sermons printed in "Religion and Politics." If there were heresy in them he had remained quiet under it; he had continued in his place. Nay, more; he had asked that his salary be increased. When his rector was criticized in 1904 or 1905, Mr. Alexander, in most unseemly fashion assuming that there would be a prosecution and that it would be successful, behind his rector's back sought the support of some of the vestrymen for his own appointment to the hoped for vacancy. With this scheme in his heart, but without, so far as appears, discarding his manner of loyalty to Dr. Crapsey, he conducted with him the evening service on Sunday, 31st December, 1905. Thinking some sentences of his rector's sermon might help those who wished to remove him, he took notes immediately upon his return home. He was asked upon cross-examination this question:
"As I understand you say here before the Court that you are unwilling to answer, or that you refuse to answer, whether when you made this memorandum you made it with the thought that you might testify to it against Dr. Crapsey; that you refused to answer?" [Record, pp. 58, 59.]
And he thus testified;
"I have no recollection of having made the statement for that purpose.
"Q. You have no recollection? A. No, no recollection.
"Q. That is all the answer you can give here, is it? A. I think so.
"Q. You have no recollection whether that was the purpose in your mind, or whether it was not the purpose in your mind; is that the answer? A. That is my answer."
The witness further testified as follows:
"Q. What I want to know is, whether at the time you made this application for an increase in salary, Dr. Crapsey had uttered any of those views of which you disapproved? A. I think his later utterances were very specific and certain in the book. I always gave, I might say, the defendant the benefit of the doubt; I had always hoped Dr. Crapsey would come back to his old position, and I saw that--I saw there was no further question------
"Q. What we would particularly like to know is the state of your mind with reference to Dr. Crapsey's sermons at the time that you asked to stay at his church if you could receive an increase of salary; that is the point to which I am directing my question. A. At that time I couldn't tell which way Dr. Crapsey would go.
"Q. You were willing to stay there if you received an increase of salary, were you, whichever way he went? A. Not indefinitely, no. I wouldn't say I would have remained indefinitely. [Record, pp. 62-64.]
[58] "Q. You were willing to listen to heretical statements if it was remembered in the wages? A. I don't know I was willing; I might be obliged to. * * *
"Q. Now, I will have to ask you that question again, and, certainly, Mr. Alexander, "as a truthful and intelligent witness you can answer a plain question. Did you or did you not, to any vestryman of St. Andrew's Church, state, if Dr. Crapsey were removed you would like to have their support for the position as rector of the church, did you or didn't you? A. I wouldn't answer such a question; I have stated all I can say in regard to that. I was called by the vestry, and it was a matter I wished to consult with the vestry about, whether I should remain or resign.
"Q. And you are willing in the presence of this Court and of this audience to deny that you made such statements and requests to the vestry of St. Andrew's Church? A. The way I will put it, Dr. Crapsey frequently spoke of resigning, and on several occasions asked me to remain; and one day he sent for me and requested me to take charge of the parish. On several occasions Dr. Crapsey spoke of resigning, and on several occasions he asked me if I would be willing to carry on the work.
"Q. That is interesting, but it does not answer the question. Are you willing to testify that at the very time you took down those minutes of what Dr. Crapsey said, at the very time you knew, and all men knew, that these proceedings were pending, you did not apply to the vestry of St. Andrew's Church to have the the position from which Dr. Crapsey might be removed? A. No, I wouldn't say so.
"Q. You wouldn't say you did or you wouldn't say you didn't? A. I wouldn't put it that way at all.
[59] "Q. You are willing to deny that you did that? A.I wouldn't put it that way.
"Q. That is all the explanation you have to make, you------ A. I spoke to some of the vestry as to whether I should resign or whether I should remain. Of course, those matters I didn't think necessary to discuss; you can call the vestry if you wish.
"Q. I should think quite possible you would not. Then the information you give us is that those matters you don't think necessary to discuss. That is your answer, is it? A. I have stated sufficient, I think, in answer to your question. * * *
"Q. You kept this statement for future: use, did you not? A. I wouldn't be very 1 positive about it. I kept it.
"Q. Perhaps after this history you can tell us now whether on that night of the 31st of December, you made those statements for future use as evidence to be given in court against the rector of the church where you were assistant. Can you tell us that now? A. No, I don't think I had that in view. We didn't know there was going to be a trial or anything of that sort.
"Q. Did you take them to furnish persons, that a charge might be brought and it might be tried? A. I made memos of the statement; I can't say as to what use I intended to put them. * * *
"Q. When did you first show these statements to any member of the Standing Committee? A. I never did show them to the Standing Committee.
"Q. To whom did you ever show them? A. I have no recollections of having shown them to any member of the Standing Committee.
"Q. Where do you suppose the Standing [59/60] Committee got these words they put into the presentment?
"By Mr. O'Brian.--If the Court please, I am desirous that the whole truth should come out here and that Mr. Perkins should have the widest possible scope.
"By Mr. North.--Do you object to this question?
"By Mr. O'Brian.--I certainly do.
"By Mr. North.--I advise that the objection be sustained."
Mr. O'Brian in the closing speech for the prosecution was compelled to disclaim any contention that respect was due to Mr. Alexander's testimony. He said:
"It may be that Mr. Alexander was unfortunate in temperament--that he went beyond the bounds of what we lawyers are accustomed to regard as fairness in giving evidence." [Full Report of Trial, page 242.]
The wholesome distrust which right thinking men, whether within or without the Church would be likely to have for a man who thus exhibits himself, would, we believe, have prevented a civil court from resting any judgment upon his testimony. And yet, if I am right as to the failure of the judgment so far as it depends upon Specification i of Charge I, there is nothing left of the judgment except what rests upon Mr. Alexander's account of one sermon. Mr. Perkins well said in the Diocesan Court that the Church of Christ would be indeed wounded and humiliated if it must dismiss men like Dr. Crapsey and retain men like Mr. Alexander.
[61] I am glad to have now closed my criticism upon the procedure of the Diocesan Court and the more technical features of its judgment. It is indeed a field dry and uninspiring except to students of the canons and to lawyers. But with these questions this Court of Review has to deal before it can go to the larger and deeper questions raised by the prosecution. Our adversaries say there are no such questions; that if it appear that public utterances or writings of Dr. Crapsey appear inconsistent with any orthodox doctrines as heretofore generally understood by the Church, the case is then at an end. They would sweep away these greater questions as to the policy of the Church and its comprehensive liberty, and make the case one technical and narrow. Very well, then; we have met them on their own ground. The judgment they have obtained can stand only if it be regular and correct. In cases like this every presumption is with the accused; the prosecution is held to a rigorous demonstration of the precise case it presents. And, if I am right in what I have said, the Court does not need to go further. If, however, I am wrong, and this judgment can survive the faults we have pointed out, the Court must deal with the really great question of
THE POLICY OF THE CHURCH CONCERNING DISCIPLINE FOR HERESY. Upon this question this Court of Review is plainly competent to pass. Rather, indeed, it is bound to pass upon it, if the narrower matters I have already presented are not decisive. The national canons have not, as I showed at the outset, restricted the considerations to which this Court may give weight. [61/62] "The Court" it is prescribed by sect, xviii of canon 29, "may reverse or affirm, in whole or in part, the decision of the Trial Court, or, if in its opinion, justice shall so require, it may grant a new trial."
Indeed, before this Court can fitly affirm the judgment below, it must affirm the wisdom of the judgment and its conformity with the true and sound policy of the Church. It must itself hold that, within such policy, the thing done by Dr. Crapsey is an offense for which he may be dismissed. Not only must the Court so declare, but it must itself determine that sincere error in preaching constitutes a violation of ordination vows. For I must remind the Court, and beg that this be not forgotten, that in neither the presentment nor the testimony nor the judgment is there a suggestion of his insincerity. That what he preached and wrote stood for his own honest conviction is not disputed, or that to him, whether rightly or wrongly, the doctrine he uttered was the doctrine truly signified by the Apostles and Nicene Creeds. So, I must again remind the Court, the diocesan judgment exonerated Dr. Crapsey from any intention to deny or impugn sound doctrine. If, therefore, this Court is to uphold the judgment it must say, not only that it was an offense, but that it was an offense requiring extreme discipline, for Dr. Crapsey to preach what he did, being honestly convinced, after the study to which he was bound by his ordination vows, that it was sound doctrine consistent with the creeds "of the Church. That this is a condition precedent to an affirmance is, I take it, clear beyond any argument.
This, as I have shown, is a quasi-criminal proceeding so far as the rules governing it are concerned. But a true criminal prosecution in our country and [62/63] England rests upon a definition of the offense to be found in a penal code or in common law built up by rulings of judges. Not only does the law for the civil courts, as does our canon for ecclesiastical courts, authorize a prosecution or prescribe limits of punishment for the offense; but the law, either an express statute or the common law, defines the offense for the civil courts. Not only does it prescribe prosecution and penalty for larceny or forgery, but it defines what is larceny, what is forgery.
You have no such chart for your guidance so far as concerns violation of ordination vows. It is for you yourselves to define what constitutes such violation. The canon under which this presentment was drawn declares that a priest "shall be liable to presentment and trial for the following offenses, viz.: * * * (b) Holding and teaching publicly or privately and advisedly, any doctrine contrary to that held by this Church. * * * (f) Any act which involves a violation of his Ordination Vows." The canon does thus clearly define as an offense the intentional holding and teaching of any heresy; but as to what constitutes a violation of the ordination vow the canon gives the Court no instruction.
What, however, is of still more moment is the liberty allowed to the Court, or perhaps the duty assigned it, to decide whether the offense, if there be one, is one for which the true welfare of the Church requires a conviction and punishment. In the present case this liberty and duty of the Court is put beyond doubt by the inclusion in the judgment, in pursuant of the canonical requirement of Western New York, of the extreme permissible [63/64] measure of the punishment. [Ordinance for the Ecclesiastical Court, sect. XVIII.] This Court must, I respectfully insist, say for itself whether what Dr. Crapsey has done, even if it be an offense within the canon, ought, in the best interests and for the true and abiding welfare of the Church, to be the subject of an adjudged penalty. No canon requires conviction, even where the presentment may be technically sustained; none make necessary either conviction or punishment, though there be offense, unless in the judgment of the Court such true and abiding welfare of the Church require. Even if questions of faith or doctrine be for the present shut out from the determination of the Court--all questions of discipline are fully left to it, and all questions of church morals and policy related to it, except as they may be expressly ruled by the canons.
As to the manner in which accusations of heresy should be considered, we have a weighty authority in the famous Voysey case in the English Church, decided in 1871, and from which I have already quoted. [Noble v. Voysey, L. R., 3 Privy Counsel Appeals, 357.]
And I make no apology for citing to you the justice and policy of the English Church regarding prosecutions for heresy. The American and English Churches are one in divine origin, one in liturgy, one in doctrine, one in tradition; they are identical in presenting to our modern times the universal and apostolic church purged of errors but in unbroken descent from the ministrations on earth of its sacred Head. No sane man will say that these churches have been without spot or blemish. But surely they have come more nearly than any other very large of Christians to the pure and exalted ideal of Christ's flock on earth. Four-fifths and [64/65] more of our Communion own the final appellate jurisdiction in matters ecclesiastical of the Judicial Committee of the British Privy Council. The Privy Council includes, always, the two Archbishops and the Bishop of London, and it may include other bishops. Under the Church Discipline Act and the Public Worship Act the Archbishops and Bishop of London, and such other bishops as may be members of the Privy Council, must sit in ecclesiastical causes. [3 and 4 Vict., c. 86 and 39; and 40 Vict., c. 59, 14.] The Privy Council, in 1832 under an Act of Parliament took over the jurisdiction of the High Court of Delegates in causes ecclesiastical and of admiralty. And the members of that Court had been named by the Crown. In the Court below Dr. Hall with much learning criticised the power of the Privy Council in the Church. But it is idle to deal with the history and merits of such jurisdiction, the intention or the carelessness of those who drew the Acts of Parliament under which it became settled. As Americans and as churchmen we may perhaps criticize the union in the same bodies of men of civil and ecclesiastical powers; and rulings of the Privy Council do not, of course, bind this Court. But they are helpful as expressions of the body of men who, for four-fifths of our communion, do finally decide these questions, of the men whose utterances are accepted by the fathers in God, and substantially the entire bodies of the English Church and her sisters or children in Scotland, Ireland and the Colonies. And, we know, spite of whispered criticisms and murmurs, that the bishops and clergy of the English Church support and will support the rulings of their chief tribunal. If the teaching of those Churches have any advisory weight with our smaller body of brethren [65/66] organized, as it were, but yesterday, we are bound to look to the conduct of their tribunals, and chief among them the Privy Council. Dr. Hall found fault with the presence there of the Lord Chancellor and law lords. But our American Church has deliberately followed the precedent. When in 1904 its supreme legislative authority, the General Convention, established this Court of Review, it required that three of its members should be laymen and two of them civil lawyers. Most fitly, therefore, may we cite here the rulings made for the English Church whether they were expressed by judicial decrees or were shown in almost equally clear effect by omissions to prosecute, and thus by practically tolerating, what was supposed by some to be heretical.
I return, therefore, to the Voysey case, decided by the Privy Council in 1871. During the thirty-five years since elapsed there has, with one exception to which I shall refer, been no heresy prosecution in that branch of our Church--certainly none, of which I have learned, has reached the Privy Council, the highest ecclesiastical court. The Rev. Mr. Voysey, it was found, had advisedly controverted "the Articles of Religion with reference to original sin, the sacrifice and suffering of Christ, the Son of God, both God and man, to reconcile His Father to man, the Incarnation and Godhead of the Son, His return to judge the world," and "the doctrine of the Trinity;" and he had also advisedly denied to Holy Scriptures "their legitimate authority even on points essential both to faith and duty." [Opinion of the Lord Chancellor, concurred in by the Abp. of Canterbury and all other members of the court, L. K., 3 Priv. C. App., page 405.] The Court pointed out the [66/67] impossibility that any society whatever of worshippers can be held together without some fundamental points of agreement or can together worship a Being in whom they have no common faith. While the Court convicted Mr. Voysey for thus advisedly denying so many and most fundamental doctrines of the Church, it nevertheless--and this was a generation ago--thus unanimously laid down the wholesome liberality which should be practiced in heresy cases. The Lord Chancellor said, with the approval of all the Court, including the Archbishop of Canterbury: [L. R,, Privy Council Appeals, 404.]
"We have not been unmindful of the latitude wisely allowed by the Articles of Religion to the Clergy, so as to embrace all who hold one common faith. The mysterious nature of many of the subjects associated with the cardinal points of this faith must, of necessity, occasion great diversity of opinion, and it has not been attempted by the Articles to close all discussion, or to guard against varied interpretations of the Scriptures with reference even to cardinal articles of Faith, so that these articles are themselves plainly admitted, in some sense or other, according to a reasonable construction, or according even to a doubtful, but not delusive, construction. Neither have we omitted to value the previous decisions of the Ecclesiastical Courts, and especially the judgments of this tribunal, by which interpretations of the Articles of Religion, which by ANY reasonable allowance for the variety of human opinion can be reconciled with their language, have been held to be consistent with a due obedience to the Laws Ecclesiastical, even though the interpretation in question might not be that [67/68] which the Tribunal itself would have assigned to the Article."
About the same time--a little later, in 1872--was decided the case against the Rev. Mr. Bennett, a Ritualistic clergyman, for affirming the doctrine of the Real Presence in the Eucharist. [Sheppard v. Bennett, L. R. 4 P. C. App., at pp. 404, 415, 418.] The supposed heresy was here the reverse of that which is charged here. Dr. Crapsey interprets spiritually formulas which it is claimed against him bear, according to their plain import, only a literal and physical meaning. The Rev. Mr. Bennett was charged with interpreting literally and physically the emphatic words of Our Lord with respect to His Body and Blood, where our twenty-eighth Article of Religion requires their interpretation "after an heavenly and spiritual manner." The Court declared that Mr. Bennett's language had been "rash and ill-judged" and "perilously near a violation of law." But, after saying that--
"The Church of England has wisely left a certain latitude of opinion in matters of belief, and has not insisted on a rigorous conformity of thought which might reduce her communion to a narrow compass,"
the Court (the Archbishop of York and Bishop of London being present) held that, "if his words can be construed so as not to be plainly repugnant" to the Church's formulas, it would acquit; that the question indeed was--
"Whether the language of the Respondent was so plainly repugnant to the Articles and Formularies as to call for judicial [68/69] condemnation; and, as these proceedings are highly " penal, to construe in his favor every reasonable doubt."
These were, I believe, the last utterances of the highest English Court in heresy cases. If this Court be of the same mind the judgment against Dr. Crapsey must be reversed. For, even if the doctrines set forth in the presentment and the diocesan judgment be fully assumed by this Court, it is quite impossible for any intelligent man to say that, in teaching the generation of the mind and soul of Our Lord by the Holy Ghost and the Resurrection of His spiritual body, Dr. Crapsey, however much in error, did not admit "in some sense or other," and according, at least, to a construction "doubtful but not delusive" the doctrines of the Conception by the Holy Ghost and the Resurrection. Surely no intelligent man can deny that Dr. Crapsey's interpretations of this doctrine can, by some "reasonable allowance for the variety of human opinion," be reconciled with the language of the Articles of Religion.
For a prosecution of this character, the test, according to this decision, is not what the Court or the Church generally understands by the doctrines, but how a sincere man, following any "reasonable or even doubtful" (if not delusive) construction, and with the utmost "reasonable allowance for the variety of human opinion " might understand them. Since the Voysey and Bennett judgments in 1871 and 1872, English churchmen have been freer than ever before to express views of doctrine which would before have been heterodoxy. I believe that Dr. Crapsey's widest departure from usual or accepted [69/70] view has been far over-passed again and again and many times by clergymen of the Church of England of high rank and unimpeached standing against whom no presentment has been made.
And shortly before the Voysey case there were in the English Church two other and famous cases whose history is full of admonitory wisdom for us. I refer, of course, to the proceedings growing out of the famous book "Essays and Reviews," and to the case of Bishop Colenso. Both illustrate the practical wisdom of our English brothers, which, while not encouraging heresy, has preserved to the Church the vast advantage of the living energy and spontaneity of the faculties of its clergy.
Bishop Colenso said he read his ordination vows as Dr. Crapsey read his. They bound him who took them to study and to think and to reason. Bishop Colenso's heresy, for that day, went far beyond any heresy charged here. He found himself driven by his study and convictions to deny the authenticity of very substantial parts of the Holy Writ. The Metropolitan of South Africa deposed him under the judgment of a so-called ecclesiastical court. The Bishop, however, declined to be deposed, and took his appeal to higher authorities in England. The Privy Council decided that the Metropolitan had utterly exceeded his jurisdiction and set aside the judgment and the deposition. Then a distinguished board of trustees or committee, of which Mr. Gladstone (then, I think, Chancellor of the Exchequer) was a member, having an endowment dedicated to the maintenance of the church in South Africa with certain rights of bishops to receive income therefrom, undertook to withhold the salary of Bishop Colenso, claiming that, by paying him his salary, they were not [70/71] promoting Christian doctrine. But Bishop Colenso again asserted his right; and the English court decided that they must pay him. In spite of his resounding challenge, no prosecution for heresy was ever brought against him by any competent authority of the Church of England. He remained a Bishop of the English Church in Natal, discharging, and with amazing energy, the duties of his sacred office until his death twenty-four years after his original but futile prosecution for heresy.
And to-day how many bishops of the English Church would reverse the decision for comprehensive liberty which, by the omission to prosecute in any competent tribunal, was made in the case of the Bishop of Natal? You could count them upon the fingers of one hand. Spite of fault-finding here and there of which one may hear in private gatherings, the decision commands to-day the general and deliberate assent of the English Church.
About the same time there appeared the book called "Essays and Reviews." The first article in it was written by Dr. Temple, then headmaster of the famous Rugby School. He dealt with Holy Scripture and doctrines of the Church in a manner which, for that time, seemed to many, perhaps to most, highly heretical. He argued that many of the early doctrinal decisions, although never formally reversed, had been erroneous and were no longer binding. He said:
"This career of dogmatism in the church was, in many ways, similar to the hasty generalizations of early manhood. * * * It rarely seems to occur to the early controversialists that there are questions which [71/72] even the church cannot solve,--problems which not even revelation has brought within the reach of human faculties. That the decisions were right, on the whole--that is, that they always embodied, if they did not always rightly define, the truth,--is proved by the permanent vitality of the church as compared with the various heretical bodies that broke from her. But the fact that so vast a number of the early decisions are practically obsolete, and that even many of the doctrinal statements are plainly unfitted for permanent use, is a proof that the church was not capable, any more than a man is capable, of extracting at once all the truth and wisdom contained in the teaching of the earlier periods. In fact, the Church of the Fathers claimed to do what not even the Apostles had claimed; namely, not only to teach the truth, but to clothe it in logical statements, and that not merely as opposed to then prevailing heresies (which was justifiable) but for all succeeding time. * * * Those logical statements were necessary; and it belongs to a later epoch to see 'the law within the law,' which absorbs such statements into something higher than themselves. * * * The mature mind of our race is beginning to modify and soften the hardness and severity of the principles which its early manhood had elevated into immutable statements of truth."
Dr. Temple also dealt with the fundamental question of Discipline here involved. He said:
"Toleration is the very opposite of dogmatism. It implies, in reality, a confession that there are insoluble problems, upon which even revelation throws but little light. Its tendency is to modify the early dogmatism by substituting the spirit of the letter, and practical religion for precise [72/73] definitions of truth. * * * When conscience and the Bible appear to differ, the pious Christian immediately concludes that he has not really understood the Bible. * * * The current is all one way; it evidently points to the identification of the Bible with the voice of conscience. * * * It wins from us all the reverence of a supreme authority and yet imposes on us no yoke of subjection. This it does by virtue of the principle of private judgment, which puts conscience between us and the Bible; making conscience the supreme interpreter, whom it may be a duty to enlighten, but whom it can never be a duty to disobey. * * * He is guilty of high treason against the faith, who fears the result of any investigation, whether philosophical, or scientific, or historical. * * * If geology proves to us that we must not interpret the first chapters of Genesis literally; if historical investigation shall show us that inspiration, however it may protect the doctrine, yet was not empowered to protect the narrative of the inspired writers from occasional inaccuracy; if careful criticism shall prove that there have been occasional interpolations and forgeries in that book, as in many others,--the results should still be welcome. Even the mistakes of careful and reverent students are more valuable now than truth held in unthinking acquiescence. * * * Not only in the understanding of religious truth, but in all exercise of the intellectual powers, we have no right to stop short of any limit but that which nature--that is, the decree of the Creator--has imposed on us."
The English church was further disturbed at the essay in this volume by the Rev. Dr. Rowland Williams on "Bunsen's Biblical Researches." The supposed heresy was of the same character as that [73/74] of Dr. Temple, but more distinctly expressed. A proceeding for Dr. Williams' deposition was brought in the Court of Arches, from which it was carried to the Judicial Committee of the Privy Council. There was a judgment of acquittal in which the Archbishops of Canterbury and York and the Bishop of London concurred, except that as to two articles of the Archbishops of Canterbury and York dissented. [Williams v. Bishop of Salisbury, 2 Moore P. C. (N. S.)] Dr. Williams lived and died in the distinguished station which he held in the English church.
Later on Dr. Temple was nominated for the Bishopric of Exeter, and needed confirmation by the cathedral chapter. There was a great struggle over the question whether the ecclesiastics who were to assemble in that chapter house should confirm him in obedience to the royal mandate. The battle raged throughout England, and was watched the world over. There were bishops on the one side and bishops on the other. And beyond a doubt the greater majority of the English clergy was hostile to Dr. Temple and disapproved of his appointment. But when those upon whom there was the responsibility of definite and final action considered the ordination vow which Dr. Temple had taken--when they considered the obligations of diligent study and honest speaking laid down by the Church of England--they found that to hold Dr. Temple's doctrines was within the comprehensive liberty belonging even to a bishop. Although they might be--although they were--erroneous, they were not fundamental. So it was that by a majority of 13 to 6 the cathedral chapter at Exeter confirmed his elevation to the episcopate. There followed the ceremony of consecration at the [74/75] Church of St. Mary le Bow, Cheapside, London; and a dramatic scene it was as the bishops in procession were on their way to the ceremony when there was tendered them a protest from other bishops declaring in effect that Dr. Temple, if he believed what he had published, could not fitly occupy a place of power in the English Church. In the first volume of Dr. Temple's life you will find an account of the pressure brought upon him by friends to moderate by some statement the heterodoxy of his essay. But although, as his subsequent career indicated, he was not without the gift of diplomacy, he manfully declined to recant or soften one syllable of what he had written. The protest was rejected, however, and Dr. Temple became Bishop of Exeter, where by many of his clergy he was received as a suspect. He lived down the suspicion; he was afterwards, as you will remember, translated to the Bishopric of London; and finally, and without any significant dissent, he was raised to the Archbishopric of Canterbury, the highest ecclesiastical station in England.
Since the decade of the Colenso, Williams, Temple and Voysey cases, a decade so memorable for the English Church, the absence of heresy prosecutions within it has plainly represented a practical decision reached as really and effectively, and doubtless as deliberately, as if it had been spoken by an archbishop writing the opinions of the Privy Council. A clergyman who in fundamentals is a Christian, and who is sincere and diligent, is not driven from that church for error or mistake upon other and lesser doctrines of the Church, however generally and strongly held or for mistakes in their interpretation. Evils and difficulties no doubt there are in such toleration; error may for a while be [75/76] spread; burdens of argument are cast upon the orthodox or better enlightened. But these evils are, many times over, made up by retaining the characteristics, and promoting the career, of a truly catholic Christian church in the only way possible where a single head or pope is not recognized to be infallible and to include in his person the supreme executive, disciplinary and doctrinal powers of the Church. Our Anglican and American communion having definitely rejected the pope and all infallibility