CONSIDERED WITH REFERENCE TO A PARTICULAR CASE:
Recent events in the city of Milwaukee render it advisable for one who may he called to pass judgment upon them in his place in the Diocesan Council to examine the law of the Church relative to new organizations in a city in which there already exist several organized parishes. This I propose to do for my own information and guidance, in the following pages. The inquiry may be conveniently prosecuted under these heads:
1.—What is the law regulating the procedure in organizing a new congregation in such a city?
2.—Whose consent is required beforehand, under the law and the facts?
3.—By whose action does the new organization acquire a regular and canonical existence?
4.—In what way, if any, can improper obstructions be removed?
5.—Is the course which has been taken regular and canonical?
The legislation of our own Church on all important sfihjects necessarily refers back to and is founded upon principles of Canon Law, which had been formulated and tested before we had an existence as an independent branch of the Catholic Church. It is the decision of our best Canonists that, in addition to the Constitution and Canons of the General Convention and of our own Diocese, we have an inheritance of principles, rules and precedents derived to us from the mother Church, out of which we sprung; which were transplanted in this continent by the immigration of those who before and after their passage over the Atlantic ocean were loyal members of the Church of England; which remained with us as a tradition and inheritance after we became the Protestant Episcopal Church in the United States; and which is, in a sense, the common law of the Church. [The Hon. Murray Hoffman devotes 70 pages of the introduction to his Treatise on Church Law to the examination and establishment of this position.] This traditional and imported Canon Law has a very wide range, and is valuable to us particularly in three ways:
I.—It enables us to ascertain the rule or principle governing a particular case in the absence of Canon Law of our own enactment.
 2.—It gives a definite legal meaning to terms which are technical in ecclesiastical language.
3.—It underlies historically our own canonical legislation, which is often to be conceived of as analogous to statutory amendments of the Common Law of the state—not as legislation de novo, but as legislation changing the traditional rule, or accommodating it better to present circumstances.
In order therefore rightly to understand our own canonical provisions concerning the erection of new Churches within the limits of previously existing parishes, we must refer to the traditional Canon Law which preceded any enactments of our own. The rules thence derived are given by Judge Hoffman in his Treatise on Church Law, pages 229 to 231, and may be stated in the following sentences:
1.—”The erection of new Churches within a parish is a branch of the same power as that of creating new, or dividing old parishes. * * * To such an erection the Canon Law, both foreign and English, imperatively requires the sanction of the Bishop.
2.—“The Canoeists lay down the rule with great unanimity, that the Bishop ought not to consent to the erection of a new parish within the limits of another, without some reasonable cause therefor."
3.—Upon the next point the rules of the English and foreign Canon law differ. The foreign rule is, that “as the construction of a new Church may injure the rights of the rector or pastor of the old, the Bishop must not give his consent without citing and hearing the rector and others interested. But if the rector, being thus cited and heard, refuses his consent, and the erection is still deemed necessary, it may be done in opposition to his remonstrance." But by the English rule the consent of the rector was so necessary that until that was obtained, or the rectorship became vacant, nothing could be done. “This principle," says Judge Hoffman “is adhered to in the statute of 1 and 2 Victoria, Cap. 32. Although the division of a parish and building of a new Church be sanctioned by the Bishop, then by the Archbishop, and lastly by the Queen in Council, yet, if the incumbent refuses his consent, it cannot be completed until a vacancy occurs."
That the English rule, and not the foreign, was considered to obtain in this country is evident, first, from the fact that we [2/3] received our traditional law, together with our existence as a Church, from the Church of England; secondly, from the canonical declaration of that rule in the Canon “of the officiating of Ministers within the cures of others," (Title I, Canon 14; Sec. VI [1.] of the Digest), which has been part of our lex scripta since 1792; and, thirdly, from the several attempts which have been made in General Convention to overcome the inconveniences of an unreasonable withholding of consent—attempts which have at times taken the form of an amendment to the Canon just mentioned, and which has finally resulted in Sec. II, Canon 5, Title III of the Digest.
From these rules the following inference follows, the importance of which will be seen as we proceed, viz: that an incumbent could not divide his parish, nor could the parish divide itself; nor could an incumbent or a parish cede a portion of its territory to another parish. That must be done by the proper authority and in the proper manner.
With these antecedent principles the American Church takes up the subject.
The first enactment by which the General Convention took direct notice of this matter eo nomine was Canon IX of 1353, which was an endeavor to regulate the consent of the incumbent. Its provisions were very faulty, and it was withdrawn on the publication of the Digest in 1859. Before that time, however, it had been laid down as a principle in the older Dioceses, in which canonical modes of procedure are held in much respect, that the authority to divide a parish, or to authorize a new Church within the limits of one already existing, is in the Diocesan Convention. And this is the decision of the General Convention: “The ascertainment and defining of the boundaries of existing parishes or parochial cures, as well as the establishment of a new Church or congregation, and forming a new parish within the limits of any other parish, is left to the action of the several Diocesan Conventions for the Dioceses respectively."—Title III, Can. 5, Sec. II, [I.] [The words "is left" imply that the power was there before this provision. It is not, therefore, a grant of power to the Diocesan Convention, but a recognition of already existing power.]
This, then, is the first change which the American Church introduced into the Common Law of the matter, as inherited from the Church of England. The authority to divide an existing parish, [3/4] to limit its area, or to erect another Church or congregation within it, was placed in the Convention, and not in the Bishop, acting solely, or with the advice of the Standing Committee.
Indirectly, however, the General Convention, as early as 1792, had reaffirmed the rule that the consent of the incumbent was necessary to the formation of a new Church or congregation within the limits of his cure, by Canon VI of that year. It is as follows: "No clergyman belonging to this Church shall officiate, either by preaching or reading prayers in the parish, or within the parochial cure of another clergyman, unless he have received express permission from the minister of the parish or cure, or in his absence, from the churchwardens, vestrymen, or trustees of the congregation." This Canon has remained in force from that time to the present, and now constitutes, with one or two slight changes, not affecting the sense, sec. vi  of Canon 14 of title I of the Digest. It has always been held to apply, not simply to the intrusion of a lawless minister officiating without an organized congregation; but also to the case of a new parish, or Church, or congregation of any sort, formed within the limits of an existing parish; and this fact disposes at once of the notion that the organization of such a congregation takes it ipso facto out of the jurisdiction of the incumbent of the existing parish. To this effect judge Hoffman remarks (p. 376): “In the first place, the terms of the Canon are perfectly clear, and sufficiently comprehensive to include the case. If the policy of the Church is sound, to protect a clergyman from an unauthorized interference with his flock, the injury to him will be as great where a body of his parishioners is gathered together under the forms of an organization, as when he is subjected to occasional and broken intrusions. At any rate, this point was one lying on the very surface of the subject, and the General Convention made no qualification of the generality of its language. Next, the framers of the Canon employed the familiar language of the English law, “There is no rule of ecclesiastical law," says Dr. Burns, “more firmly established than this, that it is not competent for any clergyman to officiate in any Church or Chapel within the limits of a parish, without the consent of the incumbent." "The consent of the incumbent to the erection and use of a Church or Chapel is requisite," is the language of Lord Stowell. It is an inference of the strongest character, that when they used such terms, with a knowledge that such was the English law, and used [4/5] them without qualification or exception, they used them in the sense of that law."
In 1795, an addition was made to this Canon, to the effect that, if a clergyman neglected or was unable to perform his duty, and at the same time refused to permit another clergyman to officiate within his cure, the vestry might apply to the Diocesan authority, and on proof of the facts, should have power to open their doors to any regular minister. The same Convention also added Canon VII, which introduced a new principle. It is entitled—" For the better accomplishing of the objects of the sixth Canon of 1792," and reads thus: "Whereas there is no provision made in the 6th Canon of 1792 for the case of such a vicinity of two or more Churches as that there can be no local boundaries drawn between their respective cures, it is hereby ordained that in every such case, no minister of this Church, other than the parochial clergy of the said cures, shall preach within the common limits of the same, in any other place than in one of the Churches thereof, without the consent of the major number of the parochial clergy of the said Churches." This Canon established the principle that two contiguous Churches could have, in a manner, common limits, and their incumbents a joint jurisdiction, and that, in that case, they or a majority of them, must give a common consent. In 18oS, this clause was added to the previous enactments, and the whole became Canon XXXIII of that year. In 1829, the principle thus arrived at assumed more definite shape, and was again formulated in Canon VII of that Convention: “Where parish boundaries are not defined by law or otherwise, each city, borough, village, town, or township, in which there is one Protestant Episcopal Church or congregation, or more than one such Church or congregation, shall be held, for all the purposes of the 33d Canon of 1SoS, to be the parish or parishes of the Protestant Episcopal clergyman or clergymen having charge of said Church or Churches, congregation or congregations." And in 1832, on a fresh revision of the Canons, this was added, as section 2, to the 33d Canon of 18o8, which was thereafter known as Canon XXXI of 1832.
The enactment of 1829, which (with some modification to be hereafter considered) is still in force, had some very important consequences.
First. It confirmed the boundaries of all existing parishes, where they had been defined by proper authority.
 Secondly. It defined the boundaries of all other existing parishes, or reputed parishes, where such definitions did not previously exist. ["A parish is that circuit of ground which is committed to the charge of one parson, or vicar, or other minister having cure of souls therein. A reputed parish is where there is a parochial chapel, with all parochial rites, entirely independent of the Mother Church, as to sacraments, marriages, burials, repairs, &c."—Hook Church Dictionary, Art. Parish.]
Thirdly. It gave a rule for the ipso facto definition of the boundaries of parishes hereafter to he formed, so that henceforth there was no parish in the Church which had not its defined limits.
Under these heads the following remarks are to be made:
1.—Three things are implied in the clause: “Where parish boundaries are not defined by law or otherwise." 1.—The defined boundaries are in existence at the time of making the Canon. 2.The "law" mentioned is the law of the State or Colonial authority. 3.—The definition, "otherwise" than by law, is a definition by the proper ecclesiastical authority. The Canon meddles not with that which has been done, but prescribes a rule for the future. At the same time, it does not take away the right of the proper ecclesiastical authority to define boundaries in the future, by a regular proceeding. But it regulates all cases, present or future, in which the proper authority does not lay down boundaries, by assigning to parishes the civil units of the State's local organizations. In all cases, therefore, where the proper authority, acting regularly, has not fixed, or does not fix the boundaries of a parish or Church, those boundaries are fixed by the Canon.
2.—Where parish boundaries are not defined by law or otherwise, the Canon considers two different cases: 1.—Where there is but one Church in a "city, borough, village, town or township." In this case the bounds of the parish are the limits of the city, borough, &c. But, 2.—Where there is more than one Church in a city, borough, village, town or township. Then the city, borough, &c., shall be the parishes of the clergymen in charge of the several Churches. The expression is unusual, and may seem to present a difficulty, but it is more in appearance than in reality. The words are plain: "The city, borough, &c., shall be the parishes"—not some part of the city the parish of each clergyman. That is, each parish has for its bounds the limits of the city, &c., as a whole; the whole city shall be as many parishes as there are Churches; and [6/7] the whole city is, from the canonical point of view, the parish of each clergyman.
This position enables the Canon to be interpreted consistently with itself. For, in adopting the Canon of 1795 as the last section of the Canon of 1832, it is further enacted that "no minister of this Church, other than the parochial clergy of the said cures, shall preach within the common limits of the same in any other place than in one of the Churches thereof, without the consent of the major number of the parochial clergy of the said Churches." The two or more parishes, then, have "common limits"—that is, the limits of the one are the limits of the other; they are like equal and similar geometrical figures, which being laid one upon another, are said to "coincide" throughout their whole extent.
Nor is the jurisdiction of the clergy thus having common limits of their cures at all difficult to adjust. The rector or minister of each parish has exclusive rights in his own Church edifice and precincts, and in the houses of his registered parishioners, wherever in the city, borough, &c., they are situated. But as regards the rest of the city, all the clergy have a joint undivided incumbency in common; and therefore the Canon guards their right and makes it their duty to provide additional Church accommodation when it is needed, by consenting together to the formation of new congregations and the admission into the clerical corps of the city of other clergymen.
This was the state of the law at the time the three oldest parishes in Milwaukee were founded, and we may therefore here sum it up concisely, as follows:
1.—The incumbent could not divide the parish, and the parish could not divide itself.
2.—The authority to divide was in the Diocesan Convention.
3.—The division must be for reasonable cause.
4.—Parishes might be organized within the limits of other parishes without a division of territory.
5.—The consent of the incumbent was necessary, either for a division or for an organization without division.
6.—Without that consent, the clergyman officiating for a new organization was presentable for a violation of the Canon.
7.—Unless express provision were made to the contrary by the law of the State or by the Diocesan Convention, the limits of each parish were those of the city, borough, village, town or township [7/8] within which the parish was situated. And that, however many parishes there might be in the city, &c., each was considered to have the whole city, &co, for its area, and its boundaries for its limits.
8.—For the erection, therefore, of a new parish, Church or congregation, in a city, &c., in which there was already more than one parish, the consent of a majority of the joint incumbents was necessary.
The law remained in this state until 1853. By that time two difficulties had become apparent. The first was that there was no remedy in case the incumbent withheld his consent without reason and against the real interests of the Church; the General Convention having asserted the traditional English rule in all its stringency. The other difficulty was that in the case of a large city, like New York or Philadelphia, it seemed inexpedient or impossible to ask the consent of a majority of all the incumbents, and it had come to be the practice to obtain the consent only of the two or three nearest to the proposed field of operations—which was clearly not according to the Canon. In 1853, therefore,the Canon was amended, but in such a bungling manner, that the earliest opportunity was taken for its repeal, and on the publication of the Digest in 1859, the law assumed the shape which it retains to the present time. As the amendment of 1853 contained the usual reservation in favor of parish boundaries "defined by law or otherwise," it had no effect upon the parishes in Milwaukee, and would not need to be further alluded to, were it not that by a singular oversight it continues to be cited as Canon Law in the "Instructions for the organization of Parishes" put forth by the Convention of Wisconsin. It is as follows:
"Section 2.—Where parish boundaries are not defined by law or otherwise, they shall, for the purposes of the foregoing section, be settled and defined by the civil divisions of the State as follows 1. If a city, village, town, township, or incorporated borough, or any ward, district, or other subdivision of either of the same, shall contain but one Church or congregation, the minister having charge of such Church or congregation shall be deemed to have the parochial cure within the same. 2.—Any city, village, town, township or incorporated borough, or the smallest subdivision of either of the same, in which there are two or more Churches or congregations, shall be deemed the parochial [8/9] cure of the ministers of such Churches or congregations, and the assent of a majority of such ministers shall be necessary."
Section 4 provided for the organization of a new parish, Church or congregation, within the limits of an existing parish. It required the consent of the minister, if there was but one, and of a majority if there were more than one; but gave the right if this consent were withheld, to apply to the “ecclesiastical authority," and in the last resort to the Convention of the Diocese. It is needless to quote it at length.
The unsatisfactory character of these amendments will be seen at a glance. They could have no ex post facto effect upon parishes already established, nor did they furnish any rule by which it could be determined whether the parishes to which they did apply extended over the whole city, or only over the smallest subdivision of the same. They prescribed an alternative, but indicated no way by which that alternative could be determined in any particular case. 'When, therefore, the General Convention of 1859 ordered the publication of the Digest, these amendments were dropped, and the Canon "Of the Officiating of Ministers within the cures of others" was re-cast in the form which it still retains:
Title I, Canon 12 (now 14), sec. VI, [1.]—"No minister belonging to this Church shall officiate," &c., as before.
"[2.]—Where parish boundaries are not defined by law, or settled by Diocesan authority under the second section of Canon V, of Title III of this Digest, or are not otherwise settled, they shall, for the purposes of this section, be defined by the civil divisions of the State as follows: Parochial boundaries shall be the limits, as now fixed by law, of any village, town, township, incorporated borough, city, or the limits of some division thereof, which may have been recognized by the Bishop, acting with the advice and consent of the Standing Committee, as constituting the boundaries of a parish. If there be but one Church or congregation within the limits of such village, town, township, borough, city, or such division of a city or town as herein provided, the same shall be deemed the parochial cure of the minister having charge thereof. If there be two or more congregations or Churches therein, it shall be deemed the cure of the ministers thereof; and the assent of a majority of the ministers shall be necessary.
"When, under Diocesan authority, a new parish is constituted [9/10] and its boundaries defined, this section shall be applicable to the same as so established."
Upon this it is to be remarked:
I.—The Canon respects all boundaries which are already settled, either by the law of the State, or by Diocesan authority, or "otherwise"—which last word covers rights acquired under previous Canons.
2•—The Canon recognizes the right of the Diocesan authority—that is, the Convention—to settle the boundaries of a parish—which, we have seen, was the traditional rule in the older Dioceses.
3.—The Canon provides a rule, for the first time, by which, where the Diocesan authority has not acted, a new parish may be assigned a territory less in extent than the whole city, village, town or township. But the grant of power to the Bishop and Standing Committee to act in the case, is not contained in this section, but in Canon V, of Title III, of the Digest, to which the Canon above cited refers. It must therefore be taken in connec' ion with the second section of that Canon:
Title III, Canon 5, Sec. II, [1.]—"The ascertainment and defining of the boundaries of existing parishes or parochial cures, as well as the establishment of a new Church or congregation and forming a new parish within the limits of any other parish, is left to the action of the several Diocesan Conventions for the Dioceses respectively.
[2.]—"Until a Canon or other regulation of a Diocesan Convention shall have been adopted, the formation of new parishes, or establishment of new Churches or congregations within the limits of other parishes, shall be vested in the Bishop of the Diocese, acting by and with the advice and consent of the Standing Committee thereof; and in case of there being no Bishop, in the ecclesiastical authority."
Now several things are remarkable in this section:
1.—Sub-section 1 is not a grant of power to the Diocesan Convention, but a recognition of a power which previously existed. The Canon simply re-states and confirms the traditional rule. The power is "left" where it was before.
2.—Sub-section 2, on the contrary, is a direct grant. It creates a power which did not previously exist; and therefore, like all such enactments, must be construed strictly.
3.—The grant to the Bishop and Standing Committee is a [10/11] grant of power to act only in the case of new parishes, or Churches, or congregations. The variation in the language, as compared with the previous sub-section, is significant. The Diocesan Convention is acknowledged to have the power to ascertain and define the boundaries of existing parishes. No such power is granted to the, Bishop and Standing Committee. They are permitted—I. "to form a new parish"—that is in any city or town where no parish already exists; and, 2. "to establish new Churches or congregations within the limits of other parishes." But they—must do this under all the provisions and reservations which constitute a regular procedure under the law; and among those provisions is that which makes it necessary to obtain the consent of the incumbent of the existing parish. For their definition of the boundaries of the new congregation or Church does not remove the territory included in such boundaries from the old parish. The idea of common territory included within two or more parishes has been too long familiar to our Canon Law to permit such a supposition for an instant. The Bishop and the Standing Committee have no power to act in any way upon the boundaries of an existing parish. That is expressly reserved, by this very Canon, to the Diocesan Convention. The new Church or congregation will be within the limits of the existing parish; and therefore, if the new Church or congregation be formed without the consent of the minister of the existing parish, the minister of the new Church will be officiating in the cure of another minister without his consent; and will therefore be doing that which is expressly prohibited by Set. VI of Canon la (14) of Title I, and will be liable to presentment therefor. Now the Bishop and Standing Committee cannot authorize a violation of a Canon of General Convention, nor can they stand in the way of a presentment therefor. They cannot, therefore, authorize the establishment of a new Church within the limits of an existing parish, without the consent of the incumbent. The act is altogether ultra vires. Whether the Diocesan Convention can do so may be a question. Certainly the Bishop and Standing Committee cannot.
But, 3.—This grant of power is only ad interim. The Canon expressly declares that it shall be vested in the grantees, only "until a Canon or other regulation of a Diocesan Convention shall have been adopted." Then it terminates. Nor is it material what the regulation is. If there be a regulation—whether it be wise or [11/12] unwise, perfect or defective—the Bishop and Standing Committee have no power under this sub-section. The sub-section itself ceases to apply to the Diocese. It virtually ceases to exist, so far as that Diocese is concerned. Now, in Wisconsin, such a regulation has been in force since 1849, in the “Instructions for Organization," &c., and therefore this part of the Canon does not apply, and never has applied in this Diocese, and all proceedings under it are null and void.
It only remains to consider the “Instructions for Organization of Parishes," as put forth by the Convention of Wisconsin, and our examination of the law will be complete.
These "Instructions" were drawn up by a committee and appended to the Journal by authority of the Convention in 1849, and thus they constitute a "regulation" in the sense of the Canon quoted above. As first framed, they were made to accord with Canon XXXI of the General Convention of 1832, which was in force at that time. They were revised in 1855, at which time a quotation from Canon IX of the General Convention of 1853 was substituted for that of 1832, which had been repealed. They were amended in 1859, and again "revised and adapted to the changes in legislation, Canons, &c.," in 1569, and are still in force in the form then given them. But it is a curious instance of the carelessness with which some of our Convention business has been done of late years, that although in the very heading of the document itself, it is said to be adapted in 1869 "to changes in legislation, Canons, &c.," it still quotes, as governing the matter of parochial boundaries, a passage from Canon IX of 1853, which was repealed in 1859—ten years before. This misquotation, however, does not affect the body of the “Instructions." They are, and have been from the beginning, to this effect:
1.—They use the term "parish or Church" to denote the organizations to which they are intended to apply, including under these terms all kinds of congregations whatsoever.
2.—Their first care is that the minister of the new organization shall be protected from liability to presentment for a violation of the Canon which forbids a minister to officiate within the parochial cure of another minister, and this they accomplish by the simple expedient of instructing those interested to "obtain the consent, in writing, of the minister or ministers within whose parochial bounds it is proposed to organize a new parish." And they give [12/13] this reason for the requirement, that “this consent will prevent the possibility, on the part of the minister who may be called to the new parish, of his being presented for violating the requirements of the General Canon above referred to." From which reason so alleged, two things are evident: first, that the new parish does not, after its formation, lie outside of the old parish by abstracting territory from it; otherwise the minister of the new parish would have this just defence, that his parish is not within the other parish; which defence the instructions imply cannot be set up. And, secondly, that the same reason applies a fortiori when the new organization is not a parish but a mission. For a parish is greater than a mission, seeing that a mission in the course of affairs is expected to grow into a parish; and that condition which includes the greater must necessarily include the less.
The Instructions proceed: "Consent having been obtained to organize, or if the proposed parish or Church"—mark the phrase—”is not within the canonical bounds of another parish, then,
"2d.—Let those interested meet, decide upon the name by which their parish or Church shall be known, and elect 'two wardens and at least three vestrymen.'" They must then,
"3d.—Draw up a constitution of a parish," which must contain certain necessary articles; and
"4th.—Give notice of your organization to the Bishop of the Diocese, asking him to take the parish under his Episcopal charge." It is added, “The parish is now organized under the Constitution and Canons of the Church."
This, then, is the “regulation" laid down by the Convention of Wisconsin which is provided for in Section II, of Canon V, of Title III of the Digest; and which, being laid down, supersedes the special rule laid down by that Canon, and terminates the grant of power to the Bishop and Standing Committee to act at all in the premises. It specifies four requirements for the “parish or Church"—both terms being used:
1.—Consent of the minister or ministers having jurisdiction.
2.—Election of wardens and vestry.
3.—Adoption of a parochial constitution.
4.—Confirmation by the Bishop.
And each of these requirements in turn requires the preceding ones—the consent of the minister or ministers having jurisdiction being the first.
 One thing the “Instructions" do not require. They do no require definition of the boundaries or separation of territory from the previously existing parish or parishes. The new parish or Church is admitted as one of the family of parishes, having the joint undivided occupancy of the whole city, with exclusive rights in its own Church edifice, and among its own congregation.
Two threads run continuously through all this web of canonical legislation: the first, that the consent of the minister of an existing parish is necessary to the officiating of another minister, by whatever title, within any part of his territory; the second, that the interposition of the Diocesan authority is necessary to any change in his relation to that territory, or to any part thereof—whether that change be the creation of a joint instead of a several incumbency, or the admission of a new member into an existing joint incumbency, or the division of his parish and the abstraction of territory from it. Our next question, then is: Whose consent was necessary to the formation of a new congregation on the south side of the Milwaukee river, within the city?
This question is a question of fact. It may be answered in two ways: Either the Rev. Dr. Keene has an exclusive jurisdiction on the south side; or the rectors of the several parishes have a joint jurisdiction over the whole city. In the first case, the consent of the Rev. Dr. Keene was all that was necessary; but that was necessary and must be obtained. In the second case, the consent of a majority of all the rectors in the city was necessary and must be obtained. To determine which of these cases was the fact, we must appeal to the Record, and interpret it by the Law.
Appended to the journal of the Primary Convention of Wisconsin, which was held in June, 1847, are the reports of the clergy made to the Bishop. The Rev. Benjamin Akerly, at that time rector of St. Paul's Church, Milwaukee, reports:
“There is neither 'Register' nor 'Record' to show what ministerial acts were performed in this parish previous to January 25, 1845; nor is it known when the parish was organized. As near as can be ascertained, it was in April, 1838." At the time of its foundation, therefore, the Canon of the General Convention in force was Canon XXXI of 1832, and St. Paul's, Church, under that Canon, “included," as Mr. Akerly remarks, “as its parochial bounds, the corporate limits of the city of Milwaukee." He [14/15] further reports: "January 7, 1847, that section of the City lying west of the Milwaukee and north of the Menomonee river, was set apart and organized as a separate parish, under the style of Trinity Church Parish." * * * " June 7, 1847, that section of the City of Milwaukee lying south of the Milwaukee and Menomonee rivers was set apart and organized as a separate parish, under the style of St. John's Church Parish."
Upon the face of this report, and the agreeing reports of the rectors elect of the new parishes, it would appear that the three parishes had, from that time forth, separate areas and distinct boundaries.
But, with all due respect to those who thus reported, this conclusion is erroneous. For—
1.—The Rev. Mr. Akerly consented to the formation of the two new parishes of Trinity and St. John's, under Canon XXXI of 1832. But that Canon did not authorize him to divide his parish, or to set off an area from it. It only authorized him to consent to the officiating of other ministers, qualified as ministers of Churches, within the bounds of his parish; and by the plain construction of the Canon, there being then three Churches in the city, the whole city, and not any separate part of it, was the limit of each of the parishes. St. Paul's, under the Canon, still included the whole city; Trinity included the whole city, and St. John's included the whole. The style and title of the Churches were taken from the whole city. It was St. Paul's Church, Milwaukee; not St. Paul's Church, east side, Milwaukee. It was Trinity Church, Milwaukee; not Trinity Church, west side, Milwaukee. It was St. John's Church, Milwaukee; not St. John's Church, south side, Milwaukee. Mr. Akerly's consent to the formation of these parishes, and to the officiating of their ministers, was canonical and necessary; but to define their boundaries, limiting their jurisdiction and abdicating his own, was ultra vires. The parishes being formed were limited by the Canon, in the absence of any limitation by Diocesan authority or State law.
2.—No Diocesan or Episcopal authority, so far as appears from the record, confirmed this division. In his address to the Convention, Bishop Kemper reports no official act so confirming it; nor did the Convention ratify it by any vote. The mere printing of the Parochial Reports, as made to the Bishop, in an appendix to the Journal, did not commit either Bishop or Convention to it, any [15/16] more than to any other error which a parochial report might contain.
And yet, according to all law and precedent, the confirmation by the Bishop or by the Convention is necessary for the division of a parish. As this is a proposition of the greatest importance in this case, I quote the following in illustration of it, from Judge Hoffman's Treatise on Church Law. He speaks first of the Diocese of Virginia:
"In 1848, a revision of the Canons took place. The 2d Canon, entitled: 'Of the Division of Parishes,' provides that, whenever the members of the Church, residing in a particular portion of a parish, shall desire to separate from the parish of which they form a part, it shall be lawful for them to assemble, and appoint a committee to take such measures as may be necessary. The committee must give to the Bishop, and to the vestry of the parish if there be one, a formal notice of their intention to apply for such purpose, which notice shall contain a description of the proposed line of division, and must be sent to the Bishop and vestry at least three months before the meeting of the Convention at which the application is to be made. Such application shall be in the form of a petition, setting forth the considerations rendering the division desirable; whereupon the Convention, if they deem it expedient, may proceed to divide such parish."
His next example is from the Diocese of Maryland:
“The Vestry Act of Maryland, of 1798, gave full power to the Convention of the Church to divide or unite parishes, as occasion might require, and to alter their bounds, and to constitute new parishes. And by the 3d Canon of that Diocese (1847), no part of a parish shall separate itself from the residue thereof, as a distinct parish, nor shall any number of the members of a Church in a distinct parish associate themselves as a separate congregation therein, without first obtaining leave of the Convention, who shall judge of the necessity or expediency thereof." Judge Hoffman adds, after remarking that, by a resolution of the Maryland Convention of 1811, three months' notice must be given: “The system in Maryland is thus in general canonical in principle, and wise in the details. The notice to the rector and vestry is provided for; the consent is sought; but, if refused, there is a power in the Convention to carry out a division, notwithstanding a refusal."
He then notices the law in Connecticut:
 “By the 8th Canon of the Diocese of Connecticut, it is made the duty of the Convention, from time to time to examine and determine the limits of the several cures within the Diocese; and in the settlement and maintenance of clergymen, the several parishes shall strictly adhere to such arrangement, except in cases of imperious necessity, and with the advice and consent of the ecclesiastical authority."
It appears from these quotations, that the older Dioceses, in their canonical legislation, insist upon the necessity of the Convention's intervening to divide a parish; and we have seen that the General Convention has finally and explicitly affirmed the same principle, by enacting that such action "is left" to the Convention of the Diocese; implying by the words, “is left," that the power was there before, and that the General Convention's enactment is only declaratory. But this being so, and it being evident that the Convention of Wisconsin did not confirm the division of St. Paul's Church, Milwaukee—no vote to that effect being on record—it follows that the proposed division failed to take effect, and the three Churches came under the operation of Canon XXXI of 1832, by which they jointly and severally had for their parochial boundaries the limits of the city of Milwaukee.
In I851, St. James' Church, Milwaukee took the place of Trinity Church, and as there was in this case also, no apportionment by the Convention of a district within the city, for its limits, the rector of St. James' Church has joint and several rights with the other incumbents over the whole city.
The same is true of All Saints' parish—except that, having no rector, it has no one to claim jurisdiction. No boundary line was ever drawn by the Convention between St. Paul's and All Saints' parishes; and therefore, although some sort of an agreement was entered into between Bishop Armitage and the then rector and vestry of St. Paul's, yet that agreement, not being confirmed by the Convention (which entertained no motion and recorded no vote to that effect), was altogether nugatory, and no boundary line exists.
These, then, being the facts and the law, it follows of necessity, and the Canons and the Instructions require, that in the case of every new parish or congregation formed in the city of Milwaukee, the consent of a majority of the incumbents of parochial cures in the whole city must be obtained.
But, suppose that a flaw exists in this argument, and the case [17/18] reverts to the original attempt at a division, then the parish of St. John's, of which the Rev. Dr. Keene is rector, covers all the south side of the city of Milwaukee. In either case, his consent must be sought, either as having concurrent jurisdiction over the whole city, or as having exclusive jurisdiction on the south side; and in either case, the establishment of another congregation within the limits of his parish, by any other authority than that of the Diocesan Convention or Council, is an unlawful and uncanonical intrusion, and subjects the minister so intruding or intruded, to presentment under the Canon.
The remaining questions which we propounded at the commencement of this inquiry, may very well be considered together. The third question has been answered in part—on the positive side—in what has been said; on the negative side it merges into the fifth. We therefore put them together: "By whose action does a new organization acquire a regular and canonical existence?" and "Is the course which has been taken in the case before us, regular and canonical?"
The facts, as we understand them, are these:
In the year 1877 certain persons, living on the south side, applied to the Bishop to provide them with, or to authorize additional services and a new organization in that part of the city. The application came before the Standing Committee, which assumed to act under the Canons of General Convention which have been given above, and set apart the 8th ward. This ward was thereupon assumed to be set apart by the Bishop of the Diocese, acting by and with the advice of the Standing Committee, as a "mission." It was placed under the charge of the Missionary Committee of the Diocese, and the Rev. Mr. Ritchie was appointed-missionary, and held and still holds services as such missionary. This action was consummated without the consent of the Rev. Dr. Keene, or of the other rectors of the city, and the Rev. Dr. Keene new protests against it as an invasion of his rights.
Now, assuming that the Bishop and Standing Committee have, under the section cited, a right to act, still their action in this particular case is illegal, because it ignored the necessity of obtaining the consent of the clergy having already parochial jurisdiction in that part of the city, and authorized the missionary to do an illegal thing—that is, to violate Title I, Canon 14, Sec, vi, [I] of the Digest, which forbids any minister [18/19] officiating within the parochial cure of another minister without his consent. In other words, grant that the Standing Committee, (we omit the Bishop's title in the rest of this argument, out of reverence for the office,) grant that the Standing Committee had some power to act in the case, still that action must be performed under the limitations laid down by the Canons; and among those limitations is the condition laid down by Canon 14 of Title I requiring the consent of the minister of the existing parish. This condition, then, is a condition precedent to the exercise of any power granted to the Standing Committee by Canon 5 of Title III. For all parts of the law must be taken together; no part can be so interpreted as to make any other part of no effect. And therefore the Standing Committee, assuming that they have a right to act, do not acquire that right until the requisite consent has been obtained.
For the reputed Mission is either within or without the limits of the pre-existing parish, or parishes. Let us consider both members of the alternative. (And this argument will be precisely the same, and of the same validity, whether the several Rectors of Milwaukee have a joint incumbency in that part of the city, or whether the Rev. Dr. Keene has a sole incumbency south of Milwaukee river.) There is no doubt that Dr. Keene, the protestor, had, before the formation of the reputed Mission, either joint or sole jurisdiction over the whole of the territory under consideration. Now the powers vested in the Standing Committee by the Canon on which they assumed to act, are, as we have seen, two only: first, to form new parishes; that is, parishes in places where there are now no parishes; secondly, to establish hew Churches or congregations within the limits of other parishes. It is a rule of law that where there is a grant of power, the terms of the grant must be construed strictly. The grant conveys no power to “ascertain and define the boundaries of an existing parish or parochial cure," nor is there any Canon in the Digest which grants such power. On the contrary, the preceding sub-section of Canon 5, of Title III, expressly declares that this power "is left" to the Diocesan Convention—implying by the words "is left," as we have shown, that it resided there previously. Assuming then, we say, that the Standing Committee have some power under this section, their power only extends to "the establishment of a new Church or congregation within the limits of another parish." But this being so, the new Mission is still clearly within St. John's parish; and its minister therefore comes under the prohibition of Title I, Canon 14, sec, vi, [I]; and his officiating within [19/20] the limits of St. John's parish, without the consent of the Rector, is clearly illegal. But the Standing Committee cannot authorize an illegal act; and therefore their action assuming to do so is null and void.
To escape this conclusion, assume that the new Mission is without the limits of St. John's parish. Then the case may seem to come under Title I, Canon 14, sec. vi,  of the Digest: “Parochial boundaries shall be the limits, as now fixed by law, of any village, town, township, incorporated borough, city, or the limits of some division thereof, which may have been recognized by the Bishop, acting with the advice and consent of the Standing Committee, as constituting the boundaries of a parish." But this allegation is open to several fatal objections:
1. The new Mission, not being a Parish, cannot have parochial boundaries; and therefore the setting apart the 8th ward to be the limits of a Mission is not authorized by this section. The territory named has not, as a matter of fact, been "recognized by the Bishop, acting with the advice and consent of the Standing Committee, as constituting the boundaries of a parish," because the Mission is not a parish.
2. But even admitting that the Mission, not being a parish, may nevertheless have parochial boundaries, and that the Standing Committee have recognized them “as the boundaries of a parish,"—which the Mission is not; still it does not follow that by being given these boundaries it is thereby removed out of the limits of St. John's parish; St. John's parish still remains what it was. The Standing Committee, by what they have done, have rot "recognized" any subdivision of the city as constituting the boundaries of St. John's parish. To do so by implication is impossible. There must be an express recognition. But this is also impossible. The power of ascertaining the boundaries of St. John's parish, supposing that they need ascertaining, is expressly declared to be "left" to the Diocesan Convention—it being an existing parish, and the powers granted to the Standing Committee being such only as relate to “New Parishes," or to Churches and congregations within the boundaries of existing parishes. The Standing Committee, therefore, have not the power to take the 8th ward out of St. John's parish; and therefore the new Mission is not without that parish. But if it be not without it, it must be within it. And this being so, so long as the minister of that Mission officiates within the boundaries of St. John's parish, without the consent of the Rector of St. John's, so long he violates the Canon, and so long his plea that he is authorized to do so by the Standing Committee is without validity. But
 3. The section of Canon 14 of Title I now under consideration is not a grant of power, but refers for the grant of power to the section of Canon 5 of Title III, which has been already considered, and its terms therefore must be taken with the limitations put upon by the grant of power contained in that Canon 5, of Title III. Now in fact, the Standing Committee have, by the initial proviso of the subsection of Canon 5 of Title III, which bears upon the case, no power to act at all in a matter of this sort in the Diocese of Wisconsin. The language is express. This grant of power is vested in the Standing Committee "until a Canon or other regulation of a Diocesan Convention shall have been adopted." But immediately such Canon or other regulation is adopted, such power ceases by the terms of the grant itself. Now the Convention of Wisconsin has adopted a very distinct and definite regulation. The “Instructions for the Organization and Incorporation of Parishes" are such a regulation. The powers of the Bishop and Standing Committee, therefore, in this regard have ceased. In fact they never existed; for the Instructions of the Convention of Wisconsin are older than the Canon of the General Convention, the former having been in existence since 1849, the latter not until 1859. The authorization of the Mission, therefore, is null and void ab initio.
It may be objected to this, however, that the “Regulation" or “Instructions" relate only to Parishes, and therefore do not cover this case, which is that of a Mission." It may be said that the Standing Committee are barred by the “Instructions" from forming a “Parish;" but that they can intrude into an existing parish at pleasure to constitute a “Mission." But, to this monstrous proposition, the answers are manifold and complete:—
1. Under the Canon of the General Convention, any regulation terminates the grant of power to the Standing Committee. The language of the limitation in the Canon covers every kind of regulation: “Until a Canon or other regulation shall have been adopted." In the Diocese of Wisconsin a regulation has been adopted. The Standing Committee, therefore, are without any powers whatever derived from this Canon. Neither Parish nor Mission is within their competency.
2. It is not true in fact, that the "Instructions" relate only to Parishes. Their language is "Parish or Church," which is intended to cover every kind of ecclesiastical organization, from a Cathedral to a Mission.
3. If this be not so, then there exists no authority in the Diocese of [21/22] Wisconsin to organize Missions anywhere in the Diocese. "Missions" were introduced as a distinct variety of congregations by Canon XVIII of 1868. But this Canon was repealed by Section 5 of Canon VI, as amended in 1872, 1876, and 1877. And therefore no “Mission" of the character authorized by that Canon can be legally organized anywhere in the Diocese.
4. But this claim that the Standing Committee can, at their own will, enter into an existing parish, having a settled Rector, and without his consent organize a “Mission" in his territory, strikes so surely at the root of all clerical jurisdiction and responsibility, and betrays such ignorance of Church principles and Church Law, that it must be matter of profound astonishment, not unmixed with fear, to find it put forward in a body like the Standing Committee of the Diocese, which ought to be the home of legal learning, of administrative wisdom, and of constitutional right. When this ignorance invades the highest of the subordinate bodies in the Diocese, it may well be feared that we are on the borders of anarchy and confusion.
The distinction between a Parish and a Mission, so far as relates to the present discussion, rests on the authority by which its minister is appointed. The one exists where there is a congregation of Church people competent to "call" a minister; the other where there is not such a congregation, and therefore where the minister is "sent" by the authority having lawful jurisdiction. The jurisdiction of the Rector of a Parish rests on his call and acceptance; the jurisdiction of the minister of a Mission upon the delegation to him of the jurisdiction of the sender. In view of this distinction, the steps to be taken towards the establishment of a Parish and of a Mission, respectively, are clear and consistent, and rest upon the distinction between them. In the formation of a Parish, the movement must begin with the people; in the formation of a Mission, it must originate with the clergy having jurisdiction. In the one case, the people desire to "call" a minister; in the other case, the clergy having jurisdiction desire to "send" one.
Hence, when a number of people residing within the bounds of an existing Parish desire to be set oft as a distinct congregation, and to obtain clerical service other than that of the Rector of the existing Parish, their course of procedure is prescribed for them in the "Instructions for the Organization of a Parish or Church," and they are bound to conform to these instructions. To withdraw themselves from this obligation by the pretense that they do not desire a "Parish," but a [22/23] "Mission," is a fraudulent evasion of prescribed duties, and is not to b e sanctioned by the Diocesan authorities.
But suppose they do not desire to become a Parish, but do desire in truth and honesty to become a Mission; then it is evident that they must become a Mission under the authority of the clergyman or clergymen having jurisdiction, and accept the initiative of such clergyman or clergymen. In other words, they must apply to the Rector of the Parish; or, where there are two or more Rectors having concurrent jurisdiction, they must apply to them in common. The Mission to be established will be a Parochial Mission, because the territory is under parochial jurisdiction, and the clergy of the Parish or Parishes including that territory, being responsible for the cure of souls therein, are not to be interfered with in the discharge of that responsibility. Any other parties, therefore, establishing a Mission in such territory, so covered by a parochial jurisdiction, without the consent of the incumbent, are guilty of intrusion.
For, by the Law of the Church, the jurisdiction of the Ordinary in a Parish having a settled Rector, is visitorial only, and is to be exercised through the Rector and the parochial authorities, and not by setting them aside. The immediate pastoral jurisdiction rests with the Rector, and therefore the appointment of a missionary rests with him, because it is his jurisdiction which is to be committed to the missionary. It is in this respect that the organization of a Mission within a Parish differs from the organization of a new Parish within the limits of an existing Parish. In the organization of a Parish or quasi-Parish, the Diocesan authority can step in—but not until the consent of the Rector has been asked; but the organization of a Mission within a Parish rests wholly with the parochial authorities, and the Diocesan authorities are barred altogether.
For the Diocesan missionary jurisdiction, which rests not in the Bishop and Standing Committee, but in the Bishop and Board of Missions of the Diocese, extends only over those parts of the Diocese which are not included in any parochial jurisdiction. This limitation lies in the very nature of the case. Diocesan missionary operations are for the purpose of carrying the Gospel and the Church to the population of places which would be otherwise unprovided for. But where there is a Parish having a settled Rector, the people are not unprovided for. The Rector in charge of such Parish has jurisdiction and responsibility, and is not to be deprived of his trust, because he can he compelled by the law of the Church to discharge that trust. And inasmuch as the General Convention has provided that parochial boundaries, where not [23/24] otherwise defined, shall be the limits of some city, village or township, there can be no uncertainty how far the territorial jurisdiction of an incumbent extends. By that provision no parochial jurisdiction not otherwise defined, can extend beyond the township. Every township, therefore, in which there exists no organized parish, is under the missionary jurisdiction of the Diocesan authorities; and their right to establish Missions in any such township is absolute, and cannot be questioned. But if, in addition to this, the Diocesan authorities can take away territory from an existing Parish and establish a Mission there, without the consent of the Rector of that Parish, then parochial jurisdiction and Rectors' rights are an empty name.
But, it may be asked, is there no remedy, where the Rector of a parish refuses his consent, unjustly and improperly, to the establishment, either of a Parish or a Mission, within a territory which is too large for his efficient working? Or, as it may be plausibly put, are Rectors' rights so sacred that they may be obstructions to the growth of the Church? The answer is, in part, that a refusal to consent is not to be judged prima facie as unjust and improper, because it does not tally with the wishes of certain persons; nor is it to be presumed beforehand that Rectors are always jealous and unreasonable, and therefore fit subjects to be repressed by the strong hand. And even if, on full examination, it does appear that a refusal to consent is unjust and improper, still the injustice or impropriety does not authorize or condone unlawful attempts to overcome the obstruction. There does lie a remedy for an improper obstructiveness; but it does not rest with the Standing Committee. It lies with the Diocesan Council. And therefore the proper course for those who are interested in the new organization is, first, to withdraw from the untenable position in which they stand; secondly, to apply for the consent of the clergy having jurisdiction; and then to proceed under the instructions laid down by the Diocesan Council. Or, if that consent is withheld, to lay the matter before the Diocesan Council, that that body may, by its inherent powers, take such action in the matter as its wisdom dictates. As the matter now stands, the action has been uncanonical all the way through, and persistence in it will strike a deadly blow at the existence of law and order in the Church.
The following is the Report of the Committee on Privilege (to whom, after a full discussion, the whole subject was referred) to the Diocesan Council of Wisconsin, held at Milwaukee, November 19th, 1878:
The Committee on Privilege, to whom was referred the consideration of the admission of Trinity Mission to union with this Council, beg respectfully to report as follows:
The committee did not desire to enter into the vexed question of Canon law presented to the Council, and they have not done so. Whether the rector of St. John's has sole jurisdiction on the south side of the Milwaukee river, or whether the rectors of the city of Milwaukee hold a joint and concurrent parochial jurisdiction over the whole city, which seems to be the more tenable view, the whole case turns upon the question of the consent of the parochial authority to the erection of the mission. To meet the former case, the consent of the rector of St. John's to the establishment of the mission in the Twelfth Ward has been asked and obtained, and he has also consented to the continuance of the services of Trinity Mission in the Eighth Ward, for such reasonable time as may be necessary for the completion of their place of worship in the Twelfth Ward. To meet the latter case, the consent of the rectors of St. Paul's and St. James' has been freely given. It is therefore evident that all canonical impediments to the reception of the MIssion into union with the Convention have been removed.
The committee have the pleasure to move the adoption of the following resolution:
Resolved, That Trinity Mission in the Twelfth Ward of the city of Milwaukee be and is hereby received into Union with the Council of the Diocese of Wisconsin, and that the delegates of the said mission be admitted to seats in the Council.
All of which is respectfully submitted.
JOHN FULTON, Chairman.
The Report was unanimously adopted.