In addition to the facts set forth in the very brief statement of facts at the beginning of defendant's brief, we wish to call the attention of this court to certain other proceedings in the trial court regarding which we believe it is important that this court should be advised.

The presentment was filed with the Presiding Bishop, and was sent by him on February 4, 1924, as required by canon to the President of the trial court, the Right Reverend John G. Murray. The Presiding Bishop at the same time sent a copy of the presentment to the accused, receipt whereof was duly acknowledged. (Record p. 7)

On March 24, 1924, Bishop Murray caused to be served upon the accused a summons as provided by the canon to appear for trial upon the presentment on the 27th day of May, 1924, in Cleveland, Ohio, and at the same time entered an order convening the trial court for that day. (Record pp. 10-11)

[2] On April 7, 1924, counsel for the accused filed a demurrer to the presentment and three motions. The demurrer was upon three grounds:

(1) That the court had no jurisdiction of the person of the defendant.

(2) That the court had no jurisdiction of the subject matter of the presentment.

(3) That the presentment was insufficient in that it failed to set forth with sufficient particularity the nature of the charges against the defendant.

Upon this last point the demurrer specified that the points of doctrine alleged to have been controverted and the respects in which they were controverted should have been set forth. In other words, that the presentment, in addition to reciting as it did the alleged heretical language of the defendant, should also have set forth what the doctrine of the Church is upon the points involved and wherein the language used by the defendant controverted that doctrine. (Record pp. 34-37)

The motions above referred to which were filed with the demurrer were: first, a motion to dismiss the presentment; secondly, if that were denied, a motion to quash the presentment; and, thirdly, a motion to require the Church Advocate to file a bill of particulars setting forth the various details in which the defendant claimed that the presentment was insufficient as above stated. All three motions and the demurrer, therefore, simply represented different ways of presenting the same alleged objections.

The allegation that the court had no jurisdiction of the subject matter or of the person of the defendant was upon the grounds stated in defendant's brief upon appeal at pages 5 to 7 inclusive. The allegation that [2/3] the presentment was insufficient in point of form is upon the ground stated in pages 11 to 13 inclusive of defendant's brief upon appeal.

This demurrer and these motions were filed with the President of the court. He held that he had no authority to pass upon them and that they should be reserved for the consideration of the entire court when it convened. (Record p. 44)

On April 22, 1924, counsel for defendant filed with the President of the court an application for the appointment of commissioners to take the depositions of certain witnesses named therein, reduce the same to writing, and return to the court. (The application is set forth on pages 12 to 19 of the record; and the covering letter of Mr. Sharts, containing the date above stated, is set forth on page 44 of the record.)

In the application the ground for asking for the appointment of commissioners is stated as follows:

"* * * For the reason that the President of the court has declined and refused to give consideration to the motions and demurrers heretofore filed on behalf of the defendant until the date set for the trial of this cause, wherefore the questions raised by the said motions and demurrer cannot be decided by the court in time to permit the summoning of witnesses and the taking of testimony thereafter in case the defendant is required to proceed with the trial * * * applicant avers that it is necessary to take the depositions of said witnesses whose attendance at the trial probably cannot be secured."

In the covering letter above referred to Mr. Sharts states, among other things, as follows:--"We are proceeding under Canon 31, Section 3 for the taking of depositions."

[4] On April 28, 1924, defendant made application for the issuance of summons for witnesses for the defendant. (The application is set out on pages 19 to 25 of the record; and the covering letter of Mr. Sharts to the President of the court, containing date, is set out on page 45 of the record.)

In that letter Mr. Sharts states as follows:

"I also inclose, herewith, a summons for the witnesses named in the application for a commissioner to take depositions. I regard this filing of the summons, in addition to the application, as probably unnecessary but a formality which I am executing in order that there may be no quibble upon our right to take the testimony of the bishops named."

On May 2, 1924, without having in the meantime received any answer from Bishop Murray to either of the above letters, Mr. Sharts wrote to the Church Advocate as follows (Record p. 46):

"As Church Advocate in the matter of the Presentment of Bishop William Montgomery Brown, you will be interested in knowing that I have filed with the presiding judge of the court an application to take the testimony of a large number of bishops by deposition. I did this knowing that it would be an extraordinary expense to bring them as witnesses, but even the taking of the depositions will be a matter of serious complication unless we agree to waive the appointment of a commissioner for each witness or for any part of them. In order to avoid the expense and delay of such technicality will you consent that the list of interrogatories (which we shall have printed in sufficient number) may be forwarded to the witnesses directly by the court, without the intervention of a commissioner or a definite time and place prescribed for each. I have prepared and am sending to be printed the list of [4/5] interrogatories and shall be glad to furnish you with a copy as soon as obtainable. In the meantime kindly let me know if you are willing to waive formalities, as otherwise I shall be forced to insist upon the immediate appointment of commissioners and the taking of these depositions upon a day set. There remains scarcely enough time in which to do this, and, therefore, an immediate reply will be appreciated."

On May 3, 1924, the President of the court wrote counsel for defendant as follows (Record p. 47):

"Replying to yours of the 30th ultimo, the application for summonses for witnesses to which you refer as being mailed by you on Monday the 28th ultimo, was duly received and I am mailing today summonses accordingly to each person named therein, except Bishops Garrett, Weed, Keater, Olmsted, Hunting and Sherwood, all of whom are deceased. In the meantime I have decided to hold in abeyance all action upon your request for the appointment of a commissioner, or commissioners, to take the deposition of these witnesses * * *"

On May 5, 1924, Mr. Dibble, the Church Advocate, wrote Mr. Sharts, counsel for the defendant, as follows (Record p. 48):

"I can see no objection on our part to waive the appointment of commissioners to take the depositions of the bishops whom you mention in your letter of May 2d in the Brown case. I should, however, expect that the matter will be covered by a stipulation in the usual form. This stipulation need not contain any dates or places of taking the depositions. It should, however, contain the names of the bishops whose depositions you wish to take and there should be annexed to it a copy of the interrogatories. The stipulation should provide that we may prepare and annex to your interrogatories such cross-interrogatories as we may desire to have [5/6] annexed. If you will prepare and submit to me such a stipulation I will prepare and annex to it my cross-interrogatories and return the same to you * * *"

On May 7th, Mr. Sharts wrote to Mr. Dibble as follows (Record p. 49):

"Answering your favor of May 5th, I have prepared the enclosed stipulation to be attached to our list of interrogatories. I cannot at this moment send you the list of interrogatories we are preparing because they are in the hands of Mr. Bushnell at Cleveland to be printed * * * as soon as I have the printed form I shall mail the same to you containing both the names of the bishops and the complete list of interrogatories."

To this letter Mr. Dibble replied on May 9th (Record p. 50):

"I have your letter enclosing proposed stipulation in the case of Bishop "William Montgomery Brown. You will note in my previous letter that I required to know the names of the proposed witnesses and to have a copy of the interrogatories before stipulating. This is in accordance with the usual practice and I feel that I must insist upon it."

On May 12th, Mr. Dibble wired Mr. Sharts as follows (Record p. 51):

"My associate Smart of Cleveland has sent me copy of interrogatories obtained from Bushnell. When I agreed conditionally to stipulate I had no idea you intended to make every bishop write an examination in dogmatics. I do not now feel that I shall sign the stipulation and make myself a party to imposing this upon them. I expect to confer with Smart Wednesday and may change my mind, but advise you to proceed to have commissioners appointed."

[7] On May 14th, Mr. Dibble wired Mr. Sharts again, this time from Cleveland, as follows (Record p. 52):

"Referring to my wire of May 12th regarding depositions. After conference with Mr. Smart have decided not to change my decision of Monday and do not care to sign stipulation."

On May 20, 1924, counsel for defendant submitted to the President of the court a supplementary list of witnesses for whom he desired summons to issue. (This supplementary petition is found on pages 25 to 27 of the record and the covering letter with the date is on page 53 of the record.) On May 22nd, the President of the court replied to counsel for defendant, stating that he had issued the summons as requested.

The record shows that the summons were served upon practically all of the defendants named, and the date of service of each. The earliest date appears to be May 7th and the latest date of the summons originally issued, May 19th; and all of the summons, including those requested in the supplementary petitions, were served not later than May 26th. (Record pp. 29 to 33)

The trial began May 27th in Cleveland and terminated May 31st. Defendant was found guilty upon each and all of the charges contained in the presentment.

Upon the trial the first proceeding was the call of the roll of the court, whereupon it appeared that all of the bishops who are members of the court, except the Bishop of Newark, were present. The court then appointed a clerk, assessors and stenographer and recognized the Church Advocate and counsel for the defendant.

Counsel for the defendant thereupon renewed his demurrer and motions, and the same were argued at [7/8] length. At the conclusion of the argument the court adjourned to the following day.

On the coming in of court on the following day, counsel for defendant filed a motion to permit defendant to examine each member of the court upon his voir dire to determine, as defendant stated:

"Whether there is cause to challenge such member on account of disqualification to sit in this action; and for cause defendant says: Defendant is without means of knowing any of the following facts as to any of the bishops sitting in this court with one exception:

"(a) Whether such bishop has expressed at any time an opinion as to the guilt or innocence of this defendant on any of the charges alleged against him in the presentment.

"(b) Whether such bishop has formed an opinion as to defendant's guilt or innocence.

"(c) Whether such bishop has read the book 'Communism and Christianism' on which the presentment is based; and, if he has read it, if he has formed an opinion as to the teachings of said book.

"(d) Whether such bishop has a feeling of prejudice or animosity against this defendant, or for any other reason is not able to exercise a fair and impartial judgment as to the matters in issue in this case."

This motion was argued at length and is discussed in defendant's brief on appeal at page 10. The motion was denied.

The court thereupon overruled the demurrer and denied the motions attached thereto. Thereupon the presentment was read and the defendant pleaded not guilty.

[9] The Church Advocate then made his opening statement.

Thereupon counsel for defendant made an oral motion in open court for a continuance, stating that he had made an application to the President of the court for the appointment of commissioners to take depositions and that the President of the Court had replied that he would not rule upon the application at that time but would submit it to the court. Counsel, also, stated that summons for these witnesses had been issued, but that upon inquiry of the Clerk of Court it did not appear that any of them were present. He therefore moved for a continuance until such time as he could obtain the testimony that was missing. (Record pp. 121-2) After some discussion the Church Advocate stated:

"It appears that in order to entitle the defendant to a continuance under any system of law he would be expected to state to the court what he expected to show by the witnesses who are not here." (Record p. 123)

Thereupon, after adjournment, counsel for defendant brought in a motion in writing for the appointment of a commissioner to take testimony of absent witnesses and for a continuance of the trial until such time as would permit of the securing of said depositions.

For cause in support of said motion defendant's counsel stated as follows:

"Defendant represents to the court that certain applications for said appointment were at the time of said filing reserved by said Presiding Bishop for the action of the court when convened;--that defendant by said ruling and reservation was prevented from obtaining the testimony of his witnesses for this trial in the form of depositions;--that [9/10] defendant thereupon filed with said Presiding Bishop an application for summons to issue for said witnesses and others to attend in person at said trial to testify on behalf of defendant;--that said summons were accordingly issued;--but that none of said witnesses so summoned on behalf of the defendant have appeared nor can their attendance be procured;--that all of said witnesses reside outside of this diocese and this state and their evidence is material;--that defendant is therefore unable to present evidence in his behalf either by the depositions or oral testimony of said witnesses;--and has been deprived of due process of law; and will continue to be unless said application be now granted." (Record page 41)

The defendant's motion for continuance with a view to appointing commissioners was thereupon argued by the respective parties.

Thereupon the President announced the decision of the court upon this motion as follows:

"The court is ready to make its statement upon this motion. The court have asked the opinion of the assessors upon the law with reference to the continuance of the case on the ground of the absence of witnesses who have been summoned and who are not in attendance. The assessors state to the court that in their opinion the granting or refusing of a continuance on the ground that the accused has not been able to procure the attendance of witnesses, or to enable their testimony to be procured by commissioners, is a matter in the sound discretion of the court. And in order to enable the court to exercise its discretion properly, it is within the discretion of the court to require the counsel for the accused to state in writing under affidavit what are the facts which he expects to prove by the absent witnesses, and what reasonable ground he has to believe that the witnesses if present would testify to these facts, [10/11] so that the court may be enabled to judge upon consideration of the facts to which it is alleged the witnesses will testify whether such evidence if produced would be admissible upon the trial of the presentment before the court. And in accordance with that opinion and the advice of assessors the court makes such request of the counsel for the accused." (Record page 125)

Thereupon counsel for the defendant read into the record the correspondence with regard to the petition for appointment of commissioners and for summons which we have hereinbefore set forth.

Thereupon, in the attempt to comply with the request of the court that he should state what he expected to prove by the absent witnesses, counsel for defendant submitted an affidavit with interrogatories attached and a statement of the answers which he expected from the witnesses to each such interrogatory. The affidavit is very long and the court is referred to the transcript of it set forth in the record at pages 57 to 91.

Thereupon the Church Advocate took up the proposed interrogatories and stated his objection to each and every one of them, expressly and particularly. These objections are set out in the record at pages 128 to 133. In general the objections to them, as stated by the Church Advocate were as follows:

(a) They were propounded for the purpose of obtaining the opinion of the witnesses as to what is the doctrine of the Protestant Episcopal Church and where it is to be found. It was the position of the Church Advocate that where the doctrine of the Church is to be found is within the judicial cognizance of the court; and that the court, and in fact every member of the Episcopal Church, is conclusively presumed to know the doctrine of the Church, [11/12] just as every person is conclusively presumed to know the law in a case involving a prosecution for violation of a statute. Insofar as the construction to be placed upon the formularies of the Church is concerned, that is a matter for the court to determine as a question of law.

(b) That insofar as the questions called for statements from the witnesses as to what their own beliefs were upon certain matters, they were incompetent and immaterial for the reason that the beliefs of individuals do not constitute the doctrine of the Church; and that if other individuals beside the defendant held doctrines contrary to the doctrines of the Church that fact would be quite immaterial in this case, inasmuch as the issue in this case was as to the guilt or innocence of this defendant and not of any other person. The beliefs of other persons were not in issue.

Thereupon the court, after an adjournment, pronounced its decision upon the motion of the defendant, and denied the motion, stating its reasons for so doing. The opinion of the court upon this matter is learnedly and aptly stated. It is somewhat long and is not susceptible of being summarized and we accordingly refer the court to that opinion as stated in full on pages 133 and 134 of the record.

The court having denied the motion for continuance and the motion for a commissioner to take depositions, the Church Advocate proceeded with the introduction of evidence.

Bishop Joseph M. Francis was called and testified that he had received a copy of the book "Communism and Christianism," together with a letter from Bishop Brown enclosing it and acknowledging authorship. (Record page 135)

[13] The book was then offered in evidence by the Church Advocate, but was objected to by counsel for the defendant on the ground that it was immaterial except as to portions quoted in the presentment. After some discussion the Church Advocate withdrew his offer of the book and offered only the portions quoted in the presentment, together with certain other specified portions. Later when the defendant presented his case he offered the entire book and the Church Advocate consented that the entire book should go in. The entire book was therefore in evidence upon the consent of both parties. (Record pages 138-146 and 225)

The Church Advocate did not offer in evidence the book of Common Prayer for the reason that the court held that it took judicial cognizance thereof. The Church Advocate did at this point, however, state expressly and specifically certain portions of the book upon which he stated that he intended to rely as determining the doctrine of the Church. These references are set forth in the record at pages 150 to 156.

On the opening of court on May 30th, the Church Advocate introduced the Journal of the Convention for the year 1898, showing the consecration of Bishop Brown, and the Journal of the Convention for 1913 showing his resignation and the consent of the House of Bishops thereto. Thereupon the Church Advocate rested.

Defendant offered four witnesses. Defendant himself took the stand and was allowed to testify at length and without objection. In addition to the defendant three other witnesses were offered, Theodore Schroeder, the Reverend Arthur E. Whathan and E. S. West. The purposes for which they were offered are stated in defendant's brief upon appeal at page 2.

[14] The testimony of these three witnesses was objected to as incompetent, irrelevant, and immaterial. In each case the objection was sustained. Whereupon counsel for the defendant read into the record a long statement of what he expected to show by each of these witnesses. (Record pages 160 to 209)

The testimony of Bishop Brown is set out in full at pages 209 to 240 of the record. At the close of his testimony the Church Advocate asked two questions of Bishop Brown in cross examination, as follows:

Q. Bishop Brown, at the close of yesterday afternoon's session your counsel rehearsed to you the Apostles' and Nicene Creeds, article by article, and you stated as to each article that you believed that article.

A. Yes, sir.

Q. Did you intend that profession of faith you made yesterday to be understood as a retraction of your book "Communism and Christianism"?

A. Oh! no, not one word of it.

Thereupon, after argument of counsel, the case was submitted; and the court found the defendant guilty upon every specification in the presentment. (Record p. 250)

Counsel wish at this time to acknowledge their indebtedness to the Reverend George C. Foley, D.D., Professor of Systematic Divinity in the Divinity School of the Protestant Episcopal Church in Philadelphia, and to the Reverend Theodore B. Foster, Professor of Dogmatic Theology in the Western Theological Seminary, who were of counsel during the trial and assisted in the preparation of this brief.

[15] Summary of the Argument of Law and Doctrine Contained in this Brief

In this summary we propose to follow the order of points discussed by the defendant in his brief. This summary is intended to enable the Court to obtain at a glance an understanding of the position of the appellee, from which the Court can turn to the fuller discussion of the points contained in the pages which follow.

I. COMPOSITION OF TRIAL COURT.

A. The trial court was properly constituted in that the House of Bishops had authority to fill a vacancy, and the word vacancy does not alone import that the office has been previously filled, but applies also to cases where there was a failure to elect. In any event, the defendant is not in a position to raise this point. If the point were well taken it would simply go to the right of the three bishops so elected to sit as members of the court, and should have been raised by challenge to those individual members and not by plea to the jurisdiction, as defendant raised it.

B. Bishop Page, although no longer Bishop of Spokane, was entitled to sit as a member of the court. The fact that he was named Bishop of Spokane in the Journal of the Convention regarding his election is of no consequence. The election was personal. It was not as representing the diocese of Spokane.

These points are discussed on pages 29 to 34 of this brief.

[16] II. MACHINERY FOR REVIEW.

The trial court was not in error in taking jurisdiction of this case in spite of the fact that an ultimate court of appeal has not been established. First, there is such an ultimate court of appeal in matters of doctrine provided in the case of trials of bishops. Herein the provisions for a trial of a bishop differ from the provisions for the trial of a presbyter. This Court of Review is empowered to review the finding of the trial court upon matters of doctrine. Not only so, but the finding of this court upon matters of doctrine must eventually be approved by the vote of two-thirds of the members of the House of Bishops. Thereby it results that we have two courts of appeal on matters of doctrine. The fact that this court is not called a court of appeal but a Court of Review is of no consequence. The fact, although not the name, exists.

Even if this were not the case, and even if there were no court of appeal on matters of doctrine, that fact would not oust the trial court of jurisdiction. Under the canons the trial court has a duty to perform that is not made dependent upon the existence of a court of appeal.

This point is discussed in pages 34 to 38 following.

III. JURISDICTION.

1. The provision that the trial shall take place "within the Diocese or Missionary District of the accused Bishop" is not jurisdictional, as it might be if there were a trial court in every diocese. The Court for the Trial of a Bishop has jurisdiction throughout this Church. The provision relating to the place of trial is merely directory and is intended for the convenience of all parties. The accused in this case signified in writing [16/17] his desire that the trial should take place in the Diocese of Ohio. (See Statement of Facts at the beginning of this brief).

2. The canon regarding the trial of bishops is not limited to bishops having jurisdiction. No such restriction is contained in the language of that canon, and that canon should be construed in the light of Canon 18, section VII, clause vii, "A bishop who ceases to have episcopal charge shall still be subject in all matters to the canons and authority of the General Convention."

3. It is not true, as claimed by defendant, that the Church of England, since the Reformation, has withdrawn any control over its bishops in matters of doctrine. The machinery for the trial of a bishop is different in England, owing to the peculiar relations existing there between Church and State. In this Church from the very first the right to try a bishop for errors of doctrine has been asserted and the machinery provided.

It is not a principle derived from the Doctrine of Apostolic Succession, or from the Doctrine of Indelibility of Orders, or from the principles of the Protestant Reformation, that a bishop should be a law unto himself in matters of doctrine. Such a contention would establish each bishop as pope and absolute monarch in his own diocese.

These matters are discussed in pages 38 to 47 following.

IV. REFUSAL TO ALLOW DEPOSITIONS.

The trial court committed no error in refusing defendant's requests to take depositions.

The request was first made before the trial. In that request there was no showing made that it would be [17/18] impossible to obtain the presence of the witnesses as required by Canon 31, section V.

At the time of the trial the request for the issuance of a commission to take depositions was renewed. Made at that time, it necessarily involved also a continuance of the case to give an opportunity to take and return the depositions. Defendant made a motion for continuance, but the Court held that before granting such a motion it would require the defendant to make a showing that the testimony of the absent witnesses, if taken, would be material. In response to this ruling, defendant filed another affidavit setting up what he expected to show by the testimony of the absent witnesses. The Court held that none of the expected testimony would be material or competent, and therefore denied defendant's motions. The facts regarding this matter are fully related in the Statement of Facts at the beginning of this brief.

The Court was entirely within its rights, in fact it was its duty, to require the defendant to make a showing of what he expected to prove by the absent witnesses, as a condition of granting the continuance. The Court was also right in ruling that the showing as made was insufficient. All of the professional testimony was clearly incompetent and irrelevant. The witnesses were asked to testify as to their own opinion or the opinion of others whose books they had read as to what was or is the doctrine of the Episcopal Church, or as to where that doctrine is to be found, or as to the extent of liberty allowed in the Episcopal Church in variation in matters of doctrine.

As to where the doctrine is found, the trial court held that that was a matter of which it would take judicial [18/19] notice. It stated that it would take judicial notice that the doctrine of the Episcopal Church is to be found in the Prayer Book. As to the construction of the creeds and other portions of the Prayer Book containing doctrinal matter, that was a matter of law for the court to determine. It was in fact the ultimate and only question in the case, and hence it was not a matter upon which opinion evidence was competent or relevant.

These matters are discussed at length on pages 47 to 55.

V. REFUSAL TO ALLOW EXAMINATION UPON VOIR DIRE.

The trial court was not a jury. The fact that it determined questions of fact did not make it such. No court is obliged to submit to the cross examination of its members, as touching their competency to sit as members of the court. Such a question should be raised by affidavit setting forth in specific terms the facts from which it is claimed the incompetency arises. The court then determines whether or not the facts alleged are true, and if true whether they constitute a proper ground for challenge to the individual member involved.

In this case an affidavit was filed by the defendant, but it consisted merely of an accusation in general terms that all of the members of the court, except one, were prejudiced against the defendant. It set up no specific facts upon which such charge was based except that they refused to answer an impertinent letter addressed to them by counsel for the defendant before the trial.

The court therefore ruled that no showing had been made of prejudice or incompetency on the part of any member of the court. The determination of the trial [19/20] court upon this question will not be disturbed by an appellate court except in the case of a clear abuse of discretion.

These matters are further discussed hereinafter on pages 56 and 57.

VI. REFUSAL TO QUASH THE PRESENTMENT, GRANT BILL OF PARTICULARS, OR SUSTAIN DEMURRER.

The sufficiency of the presentment in matter of form was raised by the defendant in three ways: By a motion to quash, by a demurrer, and by a motion for a bill of particulars. These three motions all involve the same point, namely, that the presentment was insufficient, in that it did not, (a) state what is the doctrine of the Episcopal Church it is claimed the defendant has contravened, or (b) state wherein the quotations from defendant's book contravened such doctrine.

The question as to the sufficiency of the presentment is to be determined by the rules of Canon Law rather than by the rules of the Common Law. Under the canon provided for the trial of a bishop it is provided (Canon 31, section III), "the accused being present and the trial proceeding, it shall be conducted according to the principles of the Common Law as the same is generally administered in the United States." Proceedings prior to the trial, therefore, are governed by the rules of Canon Law.

There is a considerable body of precedents in the English ecclesiastical courts as to the sufficiency of the allegations in a presentment, or as it is called in England, Articles of Charge. It has been held that, where [20/21] the accused is being tried for contravening the Articles of Religion, it is necessary to specify the particular Article or Articles of Religion which it is alleged the defendant has contravened; but that where the charge is, in general terms, a charge of heresy, such as it is in the instant case, no such particularity is demanded. As for requiring that the prosecuting officer should allege specifically wherein the statements of the defendant contravene the doctrine of the Church, that is not necessary except in cases where the statement or statements relied on are long, involved, ambiguous, or capable of several interpretations. In such cases it has been required that the prosecution should state what they regard the quotations to mean. In the instant case the quotations relied upon are brief and as unambiguous as it is possible for the English language to be made.

The same rules obtain at the Common Law. These matters are discussed more fully hereinafter at pages 57 to 77.

VII. RULING OF THE COURT UPON DOCTRINE.

The questions discussed by defendant under this heading arose in connection with the sufficiency of the presentment, and also were again raised upon the trial in connection with the effort of the defendant to introduce evidence as to what was the doctrine of the Episcopal Church, and where it is to be found and how it is to be interpreted.

At the trial defendant repeatedly challenged the Church Advocate to introduce evidence as to what the doctrine of the Church was or where it was to be found. [21/22] The Church Advocate took the ground that these questions were not matters upon which evidence was material or competent. He both declined to himself present evidence upon these points, and objected to the introduction of evidence by the defendant. The reasons for taking this position were that these were matters for the court to determine as questions of law, and not to be determined by the opinions of witnesses. (See our discussion of headings IV and VIII of defendant's brief.) The Court sustained this position of the Church Advocate. Its opinion upon this point, quoted by defendant on page 14 of his brief, is so clear and able that it would be an impertinence to add thereto.

However, before the close of the case for the prosecution, the Church Advocate did read into the record his position as to, (a) the doctrines of the church which he claimed defendant had impugned, and (b) where such doctrine is to be found. (See Statement of Facts at the beginning of this brief). It is a mere quibble to say, as defendant does on pages 16 and 18 of the brief, that he was or could be under any uncertainty as to these matters.

VIII. JUDICIAL NOTICE.

The question as to whether the court would take judicial notice of the doctrine of the church and where it is to be found has already been discussed in connection with headings IV and VII of defendant's brief.

Defendant in his argument upon this point overlooks the fact that in a determination of what is the doctrine of the Episcopal Church there are two elements involved: First, where is the doctrine of the Episcopal Church authoritatively stated; and, secondly, what is the construction to be placed upon the language of such statements. [22/23] The first point is a question of fact, of which the court will take judicial notice. The second point is a question of law, and is for the court, and not the witnesses, to determine. We discuss this more fully on pages 78 and 79.

IX. PROSECUTION'S DOCTRINE.

Under this heading, on pages 23 to 30 of defendant's brief, is contained a most egregious misrepresentation of the position of the Church Advocate.

Counsel represents the Church Advocate as paring down the doctrine of the Church to four points:

A. The personal objective reality of God, as creator of all things;

B. The triune being of God;

C. The godhead of our Lord Jesus Christ; and

D. The literal historical existence of Jesus Christ on earth.

He says that we have thrown overboard everything else as necessary to be believed. Nay, on page 29 he goes further and says that we have reduced the whole matter to these words: "That God the Holy Spirit spake by the prophets." Of course the Church Advocate did nothing of the sort.

The four points mentioned above were the four points in which it was charged that the defendant had contravened the doctrines of this Church. No doubt he has contravened them in other respects which we did not set up in the presentment. Certainly there was no intention on the part of the Church Advocate to contend that these four points constituted the sum total of authoritative doctrine.

[24] Counsel for the defendant likewise misrepresents the position of the Church Advocate when he says, page 29, "According to this the doctrine is confined now not merely to the creeds, not merely to one creed, but to one clause of that creed 'God the Holy Spirit spake by the prophets.'"

The Church Advocate, as counsel for the defendant well knew, was in this connection discussing the question of the inspiration of the Holy Scriptures, and not Church doctrine in general.

Counsel in this connection accuses us of putting the creeds before the Scriptures. He says (page 27), "If we see things in the Holy Scriptures they may not be so. But if we see them in the Creeds they must be so."

We are not in any way putting the creeds above the Holy Scriptures. We are simply saying that the Church in the creeds has provided an official and authoritative interpretation of the Holy Scriptures, or portions of them, and that if a man chooses to remain a member of the Episcopal Church he ipso facto accepts the interpretation placed upon the Scriptures by the Creeds. We are not requiring the defendant to accept the interpretation contained in the creeds. We are simply saying that this is the interpretation of the Church. The defendant is being tried for teaching doctrine contrary to that of the Episcopal Church. That is the only issue involved.

It has not seemed necessary to discuss this point more fully in the later portion of the brief, since the "Prosecutor's Doctrine" is not, and could not be made, the subject of an assignment of error. It is error of the court, if any, and not error of the prosecutor, that alone would furnish ground for appeal.

[25] X. EXCLUSION OF DOCTRINE.

The word doctrine has of course two meanings. The etymological meaning is teaching, instruction (doctrina). The word is, however, used almost exclusively in common parlance as meaning authoritative teaching, that teaching which is binding upon members of the Church. In this sense it is synonymous with dogma. Clearly, this was the sense in which the word was employed in the canon upon which these proceedings are based. In that canon it is made a matter for trial if a bishop "teaches doctrine contrary to that of this Church." This use of the word necessarily involves that the doctrine referred to is authoritative and binding doctrine, since it could not very well be made an offence to teach doctrine contrary to something which was not authoritative.

In determining where the doctrine is to be found and what it is, we hold this truth to be self-evident, that it is the inherent legal right of this Church through its proper legislative authority to determine the doctrine of the Church. It would, to be sure, have no moral right to determine the doctrine to be other than that of the whole Catholic Church, but it would have the legal right to do so. The effect would be to cut it off from the body of the Christian Church, but for this particular Communion the action of the General Convention would be final.

There has been no legislative action formulating doctrine in the Protestant Episcopal Church in the United States except the action of the General Convention in establishing the Book of Common Prayer. We find that the Book of Common Prayer contains certain portions which purport to be statements of dogma, such as the creeds and the Church catechism. It also contains [25/26] forms of prayer and praise which are purely devotional. "We find that candidates for baptism and confirmation are required to affirm their belief in the articles of the Creed, and that every member of the Church is required to be instructed in the Church Catechism before being presented for confirmation. This makes them authoritative.

The Articles of Religion are upon a different basis. They are not part of the Prayer Book as enacted. They were ordered to be printed with the Prayer Book, but. acceptance of them is not required of candidates for Holy Orders, as is the case in the English Church. The omission of this requirement is significant of the changed attitude toward them on the part of this Church.

To be sure all doctrine is based on the Holy Scriptures, but it is formulated in the Creeds, it is explained in the Church Catechism, and it is exemplified in the ritual.

This is more fully set forth in pages 84 to 91 following.

The Personal Objective Reality of God.

Defendant has misquoted the first Article of Religion by omitting all of it except a few words. It cannot by any legitimate exercise of ingenuity be tortured into a meaning such as to negative the personal objective reality of God. When we say that God is not a person such as we are, we mean that His being is more than personal, rather than less than personal.

This point is more fully discussed at pages 93 to 96 following.

[27] The Triune Being of God.

The doctrine of the Trinity has been parodied by the defendant at pages 49 to 55 in the brief. We have endeavored to state the doctrine as we understand the Church to have formulated it, and to present the reasons for it on pages 97 to 108 following.

The Godhead of Jesus Christ.

The doctrine of the Church involved here is the doctrine of the Incarnation. Here again defendant's statement of it is a mere parody. It is not easy to summarize what we have to say upon this point, and we refer the court to our discussion of it at pages 108 to 116 following.

The Historicity of Jesus Christ.

Bishop Brown not only "doubts that Jesus ever lived," but he affirms positively that the story of Jesus is merely a version of the sun-myth. The arguments adduced for this position are not in the least new. They were stated by German critics one hundred years ago, and the whole ground has been gone over again and again since that time, with the result that today no competent scholar would have the temerity to take the position which is taken by defendant in his brief.

Here again we feel that it is impossible to summarize what we have to say on this subject, and the court will find it on pages 116 to 126.

Upon this whole question of doctrine it is enough to say that we are not under any obligation to justify to this court the doctrines of the Church. The only question before this court is as to whether or not the [27/28] teachings of Bishop Brown contravene those doctrines, they true or false.

We have seen fit however to follow him in his argumentation as to the reasonableness of the doctrines, not for the reason that we regard that part as a matter in issue, but because we would not leave him to suppose that we conceded for a moment that there was anything arbitrary or untrue in those doctrines.

XI. REJECTED TESTIMONY.

This point has been sufficiently covered by what has been stated heretofore under headings IV, VII and VIII, and the portions of the brief referred to therein.

XII. MISREPRESENTATIONS.

Counsel for defendant claims that we have misrepresented the position of the defendant. We have not represented his position at all. We have allowed him to speak for himself. We have quoted without comment twenty-three passages from his book. Counsel says, "The twenty-three quotations from defendant's book charged in the presentment as errors of doctrine are misleading." Does he mean that his client did not know what he was talking about?

We had no intention of confining the court to these twenty-three quotations. We have been perfectly willing at all times that the court should take the whole book and discover Bishop Brown's intentions by a perusal of it from cover to cover. In fact we offered the book in evidence, but counsel for defendant for some unknown reason did not seem anxious that it should go in, and in fact objected to it. He later on changed his mind and offered the whole book, to which we heartily agreed. We [28/29] are sorry if Bishop Brown has not learned to express himself, so that a person of ordinary intelligence can understand what he means. We have said nothing about him which he did not say about himself.

We have not felt that this portion of defendant's brief requires any further treatment. Whether or not the Church Advocate has misrepresented the position of defendant in his arguments to the trial court is of no consequence on this appeal, It has not been assigned as error,--in fact it could not be so assigned. It was for the trial court, not the Church Advocate to construe the language used by the accused; and we submit that the trial court construed it correctly.

Argument of the Law.

A. COMPOSITION OF THE TRIAL COURT.

I. Defendant claims that the trial court was unconstitutionally formed in that three of its members, to-wit the Bishops of Mississippi, Maine, and Montana, were elected in the year 1922 for terms of six years to fill out the unexpired terms which should have been filled by the election of three members in the year 1919,--the House of Bishops having failed at that time to make any elections to this court.

There is no merit in this contention, for two reasons:

First, there has been no irregularity in the election of these three bishops. Three vacancies existed in the court by reason of the fact that the House of Bishops of the General Convention in the year 1919 had failed to elect. The House of Bishops of the General Convention of 1922 elected the aforesaid bishops for the unexpired balance of the term beginning 1919, namely, until 1928. [29/30] The Canon expressly provides for this action of the House of Bishops in case of vacancies. Canon 29, Sec. I. Clause ii, recites as follows: "Upon the occurrence of a vacancy in said court by death or otherwise, the remaining judges shall have power to fill such vacancy until the next General Convention, when the House of Bishops shall choose a bishop to fill such vacancy, the bishop so chosen to serve during the residue of the term if any there be." In this case, it does not appear that the members of the court acted to fill these vacancies in the interim between 1919 and 1922. It is entirely immaterial whether they did or did not so act. In either event it became incumbent upon the House of Bishops at the time of the next General Convention to fill said vacancy. This is precisely what they did do.

What constitutes a vacancy is discussed in 39 Cyc. 1102:

"A vacancy as applied to an office is defined as the state of being destitute of an incumbent or a want of the proper officers to officiate in such office; a place or post unfilled; an office that is not occupied. As applied to an office the term has no technical meaning (citing cases).

"It sometimes signifies an unexpired term, but that is not necessarily so. It often relates merely to the office without reference to the term (citing cases).

"The term is principally applied to cases where an office is not filled. Bouvier L. Dict., (quoted in State vs. Maloney, 92 Tenn. 62, 71, 20 S. W. 419; In re Lewensohn, 98 Fed. 576, 579).

"The word alone does not import that the office has been previously filled but aptly and fitly described the condition of an office when it is first created. People vs. Rucker, 5 Colo. 455, 464; Knight vs. [30/31] Trigg, 16 Ida. 256,100 Pac. 1060,1064; State vs. McMillan, 108 Mo. 153,159,18 S. W. 784; Matter of Collins, 16 Misc. (N. Y.) 598, 601, 40 N. Y. Suppl. 517; Com. vs. Dickert, 195 Pa. St. 234, 241, 45 Atl. 1058; In re Lewensohn, 98 Fed. 576, 570.

"It applies equally to cases where the appointment or election may be made to fill an office for the first time, and where it may be made to fill one whose previous incumbent has died, resigned or been removed. State vs. Askew, 48 Ark. 82, 89, 2 S. W. 349; State vs. Irwin, 5 Nev. Ill, 130; Condon vs. Maloney, 108 Tenn. 82, 101, 65 S. W. 871; State vs. Maloney, 92 Tenn. 62, 71, 20 S. W. 419."

The meaning of the term "vacancy" as applied to a judicial office is discussed in 23 Cyc. 516, 518:

"It is well settled that a vacancy may occur by reason of the creation of a new judicial office which has never been filled (citing cases) * * * Other matters which will result in creating a vacancy are a failure to elect at the proper election, there being no incumbent to continue in office until his successor is elected and qualified or other provisions relating thereto" (citing State vs. Lansing, 46 Neb. 514).

Secondly, if these three bishops were improperly elected, the defect in their election would not affect the status of the court, but only their right to sit as members of it. The objection could not be raised, as defendant raised it, by a plea to the jurisdiction. It could be raised only by a challenge to the three individuals so elected. If defendant had raised it in this manner, and if the challenge had been sustained, then the three members in question would have retired and the trial would have proceeded with six members of the court sitting. This would have constituted a quorum. Defendant, however, did not raise this question by a challenge to the [31/32] individual members of the court. Therefore he cannot avail himself of the point on appeal.

II. Defendant claims that there was a further irregularity in the composition of the trial court, in that Bishop Herman Page sat therein, instead of the present Bishop of Spokane.

At the time of his election to the trial court, Bishop Page was the Bishop of Spokane. Since that time, but before the filing of the Presentment in this case, Bishop Page was translated to the diocese of Michigan.

Of all of these facts this court will take judicial notice. As stated in 16 Encyclopedia of Law and Procedure (Cyc.) 913 "Courts judicially know who are the judges of inferior courts, the date of their appointment or election, and under what law they are commissioned; their terms of office and the date when a particular judge resigned or at which for any other reason he ceased to be a judge." In support of this numerous cases are cited from practically all the States of the Union.

The clerk at the opening of the court, in calling the roll of the court, called the name of the Bishop of Michigan. Bishop Page answered.

In the record of the proceedings of the General Convention above referred to, the members of the court as elected are named by the dioceses of which they had jurisdiction, and hence, in that record, Bishop Page is named as the Bishop of Spokane. His election, however, and the election of the other members of the court was personal. It was the Eight Eev. Herman Page, not the Bishop of Spokane as such, who thereby became a member of the court.

The fact that in the Journal of the General Convention the persons who were elected to the trial court [32/33] were named by their jurisdictions, rather than by their surnames is of no consequence. Such is the uniform practice in the House of Bishops; the practice is exactly the same as that in the United States Senate. There members are recognized and addressed as "The Senator from Washington," or "The Senator from Michigan," but it is the individual who is intended.

That the intent of the Canon is to provide for the selection of bishops as individuals is clear from the wording of the section:

Canon 29, Section I:

"There shall be a court for the trial of a bishop constituted as follows: The House of Bishops, upon the adoption of this Canon shall choose three bishops to serve as judges of said court for the term of three years." etc.

It will be noticed that the Canon does not say the bishops of three dioceses. In fact, election to the court is not limited to diocesan bishops, but bishops suffragan, or even retired bishops, would also be eligible for election. Hence, it follows that the office pertains to the man and not to the diocese; and when Bishop Page ceased to be the Bishop of Spokane and became the Bishop of Michigan, it was Bishop Page and not his successor in Spokane who was a member of court for the trial of a bishop.

The analogy drawn by defendant on page four of his brief is a poor one. The President would not appoint governors of states as such upon a commission, unless the statute required the appointment of governers of states. Such a statute would not be analogous to our Canon, unless our Canon had read "bishops of dioceses."

The right of the defendant to raise this question was waived by his failure to raise it in the trial court. [33/34] He took no exception to Bishop Page, except on the ground of the general disqualification which he alleged against all the members but one.

B. AS TO A COURT OF APPEAL REGARDING DOCTRINE.

Upon the next point raised by counsel for defendant, the contention is made that the trial court was without jurisdiction to hear a case involving errors of doctrine, for the reason that the Constitution of the Church contemplates the erection of an ultimate Court of Appeal, and that no such action has as yet been taken, and therefore the Trial Court ought not to proceed in any case that involves errors of doctrine until such Court of Appeal has been constituted.

Our answer to that contention is twofold:

In the first place, there has been a Court of Appeals in matters of doctrine, established in the case of bishops. Canon 33 provides for appeal to the Court of Review of the Trial of a Bishop, and the appeal is general, the appeal to the Court of Review is not confined to matters of procedure alone. The Court of Review may go into all the questions considered and determined by the Trial Court.

Section V of Canon 33 provides:

"The Court of Review of the Trial of a Bishop may affirm or reverse any judgment brought before it on appeal, and may enter final judgment in the ease, or may remit the same to the Trial Court for a new trial, or for such further proceedings as the interests of justice may require."

We wish to call the attention of the Court to the difference in the wording between that Canon with reference to the Court of Review of the trial of a Bishop, and [34/35] Canon 34, with reference to the Court of Review of the trial of a Presbyter or Deacon.

Section III of Canon 34 provides:

"The several Courts of Review"--that is one in each province--"are vested with jurisdiction to hear and determine appeals from decisions of Trial Courts, in Dioceses and Missionary Districts, on the trial of a Presbyter or Deacon in the cases hereinafter mentioned; Provided, however, that until after the establishment of an ultimate Court of Appeal as permitted by Article IX. of the Constitution, no Court of Review" that is, no such Court of Review, no Provincial Court of Review, "shall determine any question of doctrine, faith, or worship."

The distinction is obvious. The Court of Review for the Trial of a Bishop has plenary power upon appeal, may go into any question considered by the Trial Court. A Court of Review for the Trial of a Presbyter is forbidden to determine any question of doctrine, faith or worship. So that in effect the Court of Review for the Trial of a Bishop is the Court of Appeal contemplated in Article IX. of the Constitution. It is in fact a Court of Appeal in matters of doctrine, which a provincial Court of Review is not.

Not only that, but to return again to Canon 33, the Canon which relates to the Court of Review for the Trial of a Bishop, and again to Section V of that Canon, and go on to the end of the Section, to the second proviso, the wording of that proviso is:

"Provided, further," (this is after the hearing by the Court of Review) "that sentence shall not be imposed upon a Bishop found guilty of holding and teaching doctrine contrary to that held by this Church, unless and until the said findings shall have been approved by a vote of two-thirds of all the [35/36] Bishops entitled to seats in the House of Bishops canonically assembled in the said House."

So that we have two appeals in matters, of doctrine, the Court of Review, and the whole House of Bishops ultimately.

The next contention by counsel for defendant is that, assuming that there is no Court of Appeal in the case of bishops, therefore the Trial Court should not have considered this case.

Upon that matter, we have very good precedent. We have the precedent of the matter of the trial of the Reverend Algernon S. Crapsey. The same contention was raised in that case. Counsel for defendant in the Crapsey case contended, as in this case, that there was no Court of Appeal in matters of doctrine so far as presbyters were concerned. He was right about it, there was not and is not. Then he went on to say, as counsel for defendant are saying, that because there is not a Court of Appeal in matters of doctrine for the trial of a presbyter, that therefore a Diocesan Court ought not to go into the matter at all.

Now, on its face there was considerable to be said for this argument in the Crapsey case, because the trial court in that case was a mere diocesan court, and there was no court of review or appeal to which a question of doctrine could be taken. Counsel for Dr. Crapsey contended that it was not contemplated, it was unjust to the defendant, to permit a mere Diocesan Court, consisting perhaps of priests who are not learned doctors of theology, to pass upon a question of doctrine, to condemn the accused for teaching contrary to the doctrines of this Church and give him no right of appeal from the decision of such Diocesan Court upon that question.

[37] The Court of Review, however, in their opinion (Report of the Trial of Dr. Crapsey, P. 188) disposed of this contention in the following language:

"The teaching publicly and advisedly of doctrine contrary to that held by the Church, or the doing of an act by a presbyter involving a violation of his ordination vows, are enumerated among the canonical offenses specified in Canon 23 of the General Convention. The fact that no court has been as yet constituted having at this time power to review the decision of a Diocesan Court on questions of faith or doctrine does not affect the power of a court of the diocese to try a presbyter charged with teaching false doctrine. It cannot decline to entertain jurisdiction of the case in which its jurisdiction has been regularly invoked on the ground of expediency or policy. It is bound to proceed to administer the law of the church, or of the diocese, as the court shall find it to be. The omission of the General Convention to complete the judicial system of the Church by establishing an Ultimate Court of Appeal having jurisdiction of questions of doctrine did not take away or in any manner abridge the power of Diocesan Courts over the subject. Their original and undoubted jurisdiction remains complete and unimpaired. Canon 29, enacted in 1904, which creates Courts of Review, contains a variety of provisions based upon an assumption that an ultimate Court of Appeal having jurisdiction of questions of doctrine would be established. But these provisions are inoperative and will continue so to be until the contemplated court shall be created. The claim that the Trial Court should have declined to proceed in the trial of the case to await the action of some future General Convention would, if it had been allowed, have postponed the trial indefinitely, for it is impossible to forecast, at what time, if ever, the General Convention will exercise the permissory power conferred by Article [37/38] IX. of the Constitution. The existing situation leaves a presbyter who has been accused and convicted in a Diocesan Court of teaching false doctrine in the same position in which presbyters have always been, viz: without any opportunity to have the decision reversed by an appellate tribunal for error in respect of doctrine. This may be regretted, but this consideration neither takes away nor modifies the duties cast upon a trial court, except as it may serve as an admonition for considerate and cautious procedure."

The contention of the defendant is, therefore, we submit, without merit. For those two reasons, first because there is really in existence a Court of Review in matters of doctrine where bishops are concerned; and second, whether there is or not, under the authority and reasoning of the Court of Review in the Crapsey case it does not make any difference.

C. AS TO THE AUTHORITY OF THE BISHOPS TO TRY A BISHOP FOR ERRONEOUS TEACHING.

Defendant contends that the canons as to discipline were not intended to apply to resigned bishops. He bases his argument on the canon, which requires that "the trial shall take place in the diocese of the accused bishop." He then makes the premise (which is we submit, unwarranted) that a resigned bishop has no diocese. From these he deduces the conclusion above stated. He then buttresses his argument by an appeal to the practice of the English Church, in which he claims that bishops are not amenable to discipline for errors of doctrine.

We propose to show:

(1) That the provisions of the canon unmistakably confer authority to try a resigned bishop;

[39] (2) That there is nothing in the canon regarding place of trial that prevents his trial; and

(3) That the English precedents are not against it.

I. Express Provisions of Canons Which Confer Authority to Try Defendant.

Canon 28 provides:

"A (that is, any) bishop, priest or deacon of this Church shall be liable to presentment and trial for the following offenses, viz:--(6) Holding and teaching publicly or privately, and advisedly, any doctrine contrary to that of this Church."

Canon 18, Section VII, Clause vii, provides:

"A bishop who ceases to have episcopal charge shall still be subject in all matters (obviously all matters must include his teaching) to the canons and authority of the General Convention."

If the contention of defendant were valid, then it would result that, although Bishop Brown has continued to be "subject in all matters to the canons and authority of the General Convention", yet there is no way in which that authority can be enforced, either with reference to his teaching or any other matter. He might with impunity set at naught the canons and authority of the General Convention, either in respect of his teaching, or in any other respect.

It is not true as contended by defendant on pg. 6 of his brief that there is no jurisdiction to try an "unbeneficed" presbyter or deacon. To be sure Article IX of the Constitution provides that "presbyters and deacons canonically resident in a diocese--shall be tried etc." But every presbyter and deacon of this Church, whether "beneficed" or "unbeneficed" (the term is English and [39/40] not American), whether in active work or retired, is and remains canonically resident in some diocese or missionary district. He can lose his canonical residence in one diocese only by transfer by letters dimissory to another diocese, whereupon he becomes canonically resident in the latter diocese.

Neither is it true, as contended by defendant (pg. 6), that there is no reason why a resigned bishop should be amenable to discipline for the reason that he is no longer "holding office, performing active church functions."

The resignation of a bishop involves only resignation of his "episcopal charge." If a bishop of a diocese, he resigns only his "jurisdiction," that is, his authority over his diocese (Canon 18, Section VII, Clause i). A Suffragan Bishop resigns "his position as Suffragan of a diocese." (Canon 15, Sec. V.) The resignation of a bishop does not and cannot extend to anything other than his diocesan connection. He by no means ceases to "hold office, perform active church functions."

A bishop, though resigned, has certain very important powers and duties. He has a seat and vote in the House of Bishops. (Constitution, Article L, Sec. ii.) He is entitled to vote upon the question of approving the consecration of bishops for foreign lands. (Constitution, Article III.) At the request of any bishop of this Church, having jurisdiction, he may perform any episcopal act within such jurisdiction. (Canon 18, Sec. VII, Clause vi.) In a diocese in which there is no bishop, he may perform such acts, on invitation of the Convention or Standing Committee. (Canon 18. Sec. VI., Clause i.) He may vote upon the approval of the election of a suffragan bishop to be diocesan bishop. (Canon 15, Sec. VI, Clause ii.) I understand that in the recent election of Bishop Garland to be Bishop of Pennsylvania, [40/41] this defendant did exercise his right to approve said election.

As a resigned bishop, the defendant is also authorized to style himself a bishop of the Protestant Episcopal Church, to wear the insignia of office of such bishop, and to publish that fact and his picture in such insignia, in connection with his writings, thereby making the same, in some sense, an official utterance of this Church; or at any rate, producing the impression that he speaks the mind of this Church. If, in fact, his teaching is contrary to the doctrine of this Church, it is not only the right, but the duty of the Church to absolve itself of responsibility for such doctrine in the only way possible, namely, by the deposition of defendant.

II. Construction of Provision Regarding Place of Trial.

Defendant contends that this court has no jurisdiction of the person of the defendant for the reason that Canon 31, Sec. I. Clause i., provides that the trial shall take place "at a place within the diocese of the accused bishop," and that as the defendant holds no diocese at all, there exists no place in which he may be tried. This, as it seems to us, is a, plain misconception of the meaning of the language.

Every communicant of the Church has a diocese and it is the diocese in which he is resident. One might as well say that an American citizen could be a citizen of the United States but not a citizen of any State or Territory, as to say that a man could be a member of the Episcopal Church but not a member of any Diocese or Missionary District. If such a condition obtained as to a resigned bishop, he would be in a class by himself; he alone, of all the members of this Church, would have [41/42] no diocese that he could call his diocese; he alone, of us all, would be a man without a country.

This question appears to have been settled, however, by the letter of defendant to the President of this Court, dated February 28th, as follows:

"If it should be satisfactory to the court and the majority of those who must participate in the trial, if it is held, I wish that it might take place at Galion; but otherwise I shall do my best to go to the place appointed by you."

To which I replied on March 13th, as follows:

"Bishop Brown evidently construes that Section to mean the diocese in which the defendant bishop actually resides; at any rate, he desires that the trial should be held in the Diocese of Ohio. With that construction we concur."

In any event, the place of trial is not a jurisdictional matter,, since the Court has jurisdiction anywhere in the Church. This is not a diocesan court or other court of limited jurisdiction. The place of meeting can be fixed by the President, for greater convenience, in a diocese other than the diocese of the defendant, even without his consent. We should have been willing to try this case in the Diocese of Arkansas had the defendant and court so desired; but the court, at the instance of the defendant, set it for trial in the Diocese of Ohio.

III. English Precedents.

Counsel for defendant contends that because the English Church gives its bishops no authority to control the teaching of one of their number on points of doctrine, therefore, it could not have been intended to confer this power in the American Church. This proposition is [42/43] misleading in its premise and, we submit, false in its conclusion.

(a) It is true that in the English Church no authority is conferred upon the bishops as a body to try one of their number for heresy. But this argument proves too much; for there was no authority conferred upon the bishops as a body to try anyone, bishop, priest, or deacon, for heresy, or any other offense. It is not true, however, that heresy went unpunished. There was simply a difference in the machinery.

This statement utterly disregards the status of Church and State in England. They are not two entities; but two aspects of the same entity. The Church is not a corporation within the State. In theory (and until after 1600 A. D. in reality) Church and State are merely two aspects of the Nation. The State is the political aspect, the Church the religious aspect. Parliament is the legislative body of both Church and State. The Lords Spiritual represented the clergy and the Lords Temporal and the Commons represented the laity. So that all rules for the government of the Church emanated from parliament, including the laws relating to discipline for teaching errors of doctrine.

Likewise, the courts in which ecclesiastical cases are tried are courts of both Church and State; although in the main ecclesiastical causes are triable in special courts, which are, for that reason, called ecclesiastical courts. In the Province of Canterbury there are diocesan courts; above these a provincial court of appeal, called the Court of Arches, and finally the Privy Council. The judges of the diocesan courts are appointed by the bishops and are regarded as exercising the judicial authority which has everywhere in Christendom been vested in the bishop. The Dean of Arches is in the same way [43/44] the representative of the Archbishop. The Privy Council is appointed by the Crown and consists of both bishops and laymen. It has important civil jurisdiction. But insofar as it sits in ecclesiastical cases it is a Church court.

Now these courts have jurisdiction of cases of heresy, as well as of other offences committed by clergy. There was until 1888 some doubt as to the amenability of a bishop to these courts, not only for heresy but for any other offence also. (Fortunately there had been no occasion to try a bishop for so long that no one knew quite how to proceed.) But it appears to have been settled in Ex parte Reed, L. J. E. C. 32, that a bishop is amenable to the Archbishop, sitting perhaps with other bishops of the Province, for the reason, as stated by counsel in that case: "There must be some jurisdiction over bishops. If clerks in Holy Orders are liable to be proceeded against for offences against the laws ecclesiastical, are bishops to be exempt from all jurisdiction?" (Phillimore Ecclesiastical Law, Vol. I, pages 65-74.)

(b) I. have said that defendant's argument from the English precedents is false in its conclusion. Because bishops in England were triable, not by a body of bishops but by the archbishop and civil courts, defendant contends that, there being in this Church no archbishops and no civil courts with ecclesiastical jurisdiction, therefore the drafters of our Constitution must have intended to leave the bishops responsible to no authority whatever. On the contrary, it would seem that these facts would prove just the contrary. "There must be some jurisdiction over bishops." The divorce of Church and State made it necessary to place this jurisdiction somewhere other than where it had been placed under English law. Consequently our forefathers put it back where it [44/45] had usually been placed throughout the history of the Catholic Church, namely, in a body of bishops.

Counsel for defendant says (P. 6) that, because the Constitution does not authorize the trial of a Bishop for errors of doctrine that therefore it was not intended that he should be amenable for such offense. But the Constitution does not specify any offense for which a Bishop may be tried. Does counsel expect this court to hold that the framers of the Constitution, after setting up a court, intended that it should have nothing to do?

Counsel says:

"A clause authorizing such control (over a Bishop) would have been a radical revolution, would have foresworn the whole principle of Protestantism, based an Apostolic Succession and Indelibility of Orders."

It would have been news to John Calvin, John Knox, or even Thomas Cranmer, to learn that the whole principle of Protestantism was based on the Catholic doctrines of Apostolic Succession and Indelibility of Orders.

Neither doctrine has ever been held to imply that a bishop is not amenable for errors of doctrine. The records of the early councils were filled with accounts of trials and depositions of bishops, usually for heresy. The following canonical provisions are taken from Index Canonum, by the Rev. John Fulton, D.D.

"The penalty of deposition shall be imposed upon one who falls into the heresy of Nestorius or Celestius." (Ephesus Canon 1 and 2.) The whole matter is summed up as follows: (Ephesus Canon 7.) "Those who shall dare to compose another creed or to produce or offer the same to persons desiring to make an acknowledgment of [45/46] the truth, shall be deposed if they be bishops or clerics, bishops from the episcopate and clerics from the clergy; and if they be laymen they shall be anathematized." Specific provisions are made for trial of offending bishops. The Second Council of Carthage, Canon 10, provides:" The criminal cause of a bishop shall be heard by twelve bishops." (Bingham, Christian Antiquities, Vol. I., page 94.) And these sentences were reviewable by the Synod of the province. (Nicene Canon 5.) The Council of Constance deposed two rival Popes and elected another.

Defendant's whole argument is a tissue of contradictions and unrealities. Making jettison of the whole Catholic faith beside, he retains only the minor and largely theoretical doctrine of the indelibility of Orders. The character and grace of Orders can not only not be terminated, but can not even be regulated; since it came to him, not through the Church, but directly from Jesus Christ. Yet Jesus Christ probably never lived; and, if He lived, we do not know of one word that He said, or of one thing that He did. The grace of Orders is divine and hence not subject to human regulation; yet Christ was not divine, and in fact God exists only in our imagination. According to defendant, the character and grace of a bishop might quite as well be said to derive from Uncle Sam or from Santa Claus.

The contention of the defendant would result in making the bishop an absolute monarch in his own. domain, a thing which the Church never tolerated until the usurpation of the Bishop of Borne, and against which this' Church has always protested. Bishop Brown in his brief says in effect, "L'eglise c'est moi." From such a notion of the episcopal office we dissent.

[47] If "all the Protestant martyrs who died to make good the principle of freedom of religious thought" died only to insure that a bishop should be an absolute monarch, amenable to no one, and free to deny and scoff at the God for whom they died, then indeed did they die in vain.

D. REFUSAL TO ORDER DEPOSITIONS.

In answer to the assignment of error classified under the above item on page 7, of the defendant's brief, and addressing ourselves to the first alleged infringement of the defendant's rights, namely the alleged refusal of the President of the Court, when duly requested before trial, to issue commissions to take testimony of witnesses on behalf of the defendant, we call attention to the provisions of Canon 31, Section III, cited on p. 8 of the defendant's brief.

In this section it appears that it shall be lawful for either party to apply to the Court, if in session, if not, to any member of the Court, for the appointment of a commissioner or commissioners to take the deposition of witnesses. This right is predicated upon the proviso that there is ground to suppose that the attendance of such witness at the trial cannot be obtained.

On the 22nd of April, 1924, Counsel for the Accused, mailed a letter, (Record p. 44) to Bishop Murray, as President of the Court, enclosing an application for the appointment of commissioners to take deposition of witnesses named therein, to-wit: all of the bishops of the Protestant Episcopal Church. The application did not allege that there was ground to suppose that the attendance of the witnesses named in such application could not be obtained. The application therefore was not made [47/48] in compliance with the canon above cited, and therefore the member of the Court to whom such application was mailed, was not called upon to grant such application and appoint such commissioners. Of the witnesses whose depositions defendant sought to take, many lived in the State of Ohio and neighboring states, and one of them in the City of Cleveland itself. Yet at the time that defendant asked for the commissions to take testimony, he had not requested a summons of these, or any other witnesses, and was therefore plainly not in a position to make a showing that their presence at the trial could not be obtained.

However, before any ruling was made, Counsel for the Defendant, on the 28th day of April, 1924, mailed to the same member of the Court, a letter (Record p. 45) containing an application for a summons to be issued for each of the persons named in said application, to attend in person at the trial of the Accused. The application to summon witnesses was granted by the President of the Court, and notice of the ruling of the Court upon said application was mailed to Counsel for the Accused on the 3rd day of May, 1924. (Record p. 47)

Upon the receipt of this application on the part of the Accused for the issuance of summons, the question as to whether the President of the Court should have issued a commission to take depositions ceased to be a matter of importance. It was not necessary for the President of the Court, as a member thereof, to further consider or to act upon said application for the appointment of commissioners, inasmuch as Counsel for the Accused, had evidently abandoned such application, and sought in place thereof the issuance of summons upon the same witnesses.

[49] It is an abuse of language to say, as defendant's Counsel says on p. 8, "That it was self evident that the witnesses summoned by the defendant would not attend the trial." The President of the Court did not arrogate to himself entirely unwarranted power in refusing process before trial, as stated by the defendant's Counsel on p. 9, and did not violate the section of the canon above quoted, to immediately appoint commissioners to take the deposition of witnesses, because the canonical requirement to so appoint such commissioners was not preceded by a statement on the part of the accused that ground existed to suppose that the attendance of any such witnesses could not be obtained.

By way of comment upon the second assignment of error, charging the refusal of the Court to issue commissions for the taking of depositions without the defendant first stating in writing what he expected to prove by such witnesses, will say, that the action referred to by Counsel for the accused has evidently to do with the application made at the time of the trial, for the postponement of the cause, pending the issuance of commissions and the taking of depositions alleged to have been necessitated by the failure of the witnesses to appear at the time of trial in obedience to such summons.

The Court in deciding this question was required to first determine whether the testimony of said witnesses, if present either in person or by deposition, would be competent and material. The granting of the application for a continuance was a matter purely within the discretion of the Trial Court. The trial of the case might be indefinitely postponed, if the Court was required to grant continuance upon the mere statement that certain witnesses, who had been subpoenaed, were not present in obedience to the orders of the Court. The Court had a [49/50] right to inquire of the accused and require him to state, by affidavit, what he expected to prove by the witnesses whom he had caused to be summoned, and who were not present. The Court had a right in its discretion, to determine the materiality and competency of the testimony proposed to be introduced at an adjourned session of the Court, after such witnesses had been compelled to attend, or their depositions returned. The Court held that it had the right to require such statement and affidavit from the accused.

Such statement and affidavit was thereupon made and filed with the Clerk. The Court determined that the evidence sought to be adduced from the witnesses, if present, would be incompetent, and immaterial. The decision of the Court upon said application for continuance is a proper subject of review by this Court.

The Trial Court held that

"What the doctrine of the Church is in any particular, and whether the utterances of the defendant contravened it, is not to be determined by the opinion of witnesses. The duty to make that determination has been canonically imposed upon this Court for this trial, and they cannot avoid it.

"The Court must ascertain as a matter of law what the Church's doctrine is. * * * The Church's doctrine is not to be ascertained by the evidence of witnesses.

"The question has been asked by Counsel for the Accused as to where the doctrine of the Church is to be found. In reply the Court expresses its opinion that such doctrine is to be found in the book of Common Prayer, as adopted and established by the Constitution of the Protestant Episcopal Church in the United States of America. It is perhaps superfluous to state that the most important [50/51] formularies of doctrine are the Apostles and Nicene Creeds. It is a matter of common knowledge that the doctrine of the Church is not formulated in the Holy Scriptures, but is in all cases to be supported by the Holy Scriptures as interpreted by the Church in its corporate capacity."

The canons do not specifically require the Court to adjourn or continue the trial of a bishop, upon the mere statement of the accused, until the attendance of witnesses can be enforced.

Section III, Canon 31, provides that

"The Accused being present, and the trial proceeding, it shall be conducted according to the principles of the Common Law, as the same is generally administered in the United States; and the laws of the state in which said trial is held, so far as they relate to the law of evidence, shall be adopted and taken as the rules by which said Court shall be governed."

As to what is included in the phrase "law of evidence" we quote from 22 Corpus Juris, p. 65, as follows:

"Evidence broadly defined is the means from which an inference may logically be drawn as to the existence of a fact * * *. A rule of evidence may be defined to be the mode and manner of proving the competent facts and circumstances upon which a party relies to establish the facts in dispute in judicial procedure."

It would therefore follow that the words "law of evidence" as contained in Section III of said Canon 31 means the rules by which testimony is to be judged as to its materiality, relevancy and competency, and that the word "evidence" does not include rules governing the production of witnesses or the circumstances under which a continuance may be granted.

[52] We should, therefore, construe the Canon to mean: that the rules governing the production of witnesses, or the circumstances under which a continuance might be granted, would be the rules of the general Common Law; but the question as to whether the testimony which defendant expected to elicit from them would be material or competent would be controlled by the law of the State of Ohio.

The Court's right to require the accused to state what he expected to prove by such witnesses is governed by the rules of Common Law. In 9 Encyclopedia of Law and Procedure, p. 166, under the subject of "Continuance in Criminal Cases" appears the following:

"A party charged with a crime has no natural or inalienable right to a continuance, and in the absence of a statute, is not entitled to the same as a mere matter of right or law. At Common Law, such applications were addressed to the sound discretion of the Court and its decision thereon could not be assigned as error; and while now the practice acts in perhaps all American jurisdictions, authorize the review of such decisions by the Appellate Tribunal, the rule is well established that the trial court still acts within its own discretion in granting or refusing an application for a continuance in a criminal case."

This is not a criminal case, but the law accords more rights to the defendant in regard to criminal oases than in civil cases. We are therefore giving him the benefit of the more liberal rule. On the same page, we find the following:

"The rule is well established. The trial court still acts within its own discretion in granting or refusing an application for a continuance in a criminal case, whether it be on behalf of the accused, or [52/53] of the state, which ruling will not be disturbed in the absence of a clear abuse of discretion."

We quote the following from the same article on p. 174:

"It is not reversible error to refuse to grant a continuance on account of the absence of witnesses where the testimony sought to be adduced does not appear to the Court to be important, or as materially affecting the guilt or innocence of the Accused. * * * Where it is not responsive to the material issues presented * * * or where for any reason the testimony sought to be introduced, from the nature of the case involved, and the other testimony submitted, is by the general rules of evidence irrelevant, immaterial, or for other reasons inadmissible, or unimportant. * * *"

From the same article on p. 198, the following is quoted:

"Generally speaking, a party desiring a continuance must make the proper application therefor, and it is not error to rule the cause to trial where no such application or motion has been made."

Again on p. 201:

"In an application for a continuance on the ground of absent witnesses, it is not sufficient to state in general terms, or by indefinite allegations, what the absent testimony will be. It must specifically set forth the facts expected to be proved by such witness, so that the court may judge of the materiality of the same."

From p. 204, the following is quoted:

"Ordinarily the rule is that it must appear in the affidavit, either by express averment or by necessary intendment, that the facts sought to be proved by the absent witnesses could not be proven by other witnesses."

[54] From 13 Corpus Juris, p. 122, we quote the following:

"A continuance is the adjournment or postponement of an action pending in a Court to a subsequent day of the same or another term: the adjournment of a cause from one day to another of the same or subsequent term."

From page 123, the following is quoted:

"It is a general rule that the granting or refusing of a motion for continuance is in the sound discretion of the trial court, and that an Appellate Court will not interfere with the exercise of this discretion, unless the action of the trial court is plainly erroneous, and is a clear abuse of its discretion."

On p. 127, the following appears:

"So a continuance will not be granted for the purpose of obtaining evidence which would not affect the result."

The following appears on p. 152:

"Where a continuance is sought on the ground of absent witnesses, the facts to be proven by them must be material to the issues involved in the cause; and where they are not material, the continuance should be refused."

We see from the Common Law, thus cited, that the trial court did not arrogate to itself unwarranted power in refusing to grant a continuance except on the condition that the defendant should show by affidavit what he expected to prove by the absent witnesses. We also see that the Court did not refuse to obey the canons, but that the Court's procedure was in accordance with the Common Law.

The case of Morton vs. State, reported in the 105 Ohio State Reports, p. 366, is cited as an authority for [54/55] the proposition that the commonest criminal before an Ohio Bar would have been more fairly dealt with, and would not have been required to state in advance what he expected to prove by absent witnesses whose attendance he sought to compel, and that the Supreme Court in the case cited, had declared an act unconstitutional which thus invaded the rights of the accused. The case in question is not in point. The Supreme Court of Ohio declared unconstitutional an act which denied a right to the defendant in jail which it extended to the defendant not in jail, namely the right to take depositions out of the state.

The following is quoted from the opinion of Judge Robinson on p. 373:

"The effect of the statute is to grant to the defendant who may be able to give bail, process of the court to secure in his defense the evidence by deposition of witnesses residing without the state, whose attendance cannot be obtained by compulsory process, and to deprive the defendant who is unable to give bail of the process of the court to secure the evidence of witnesses situated in the same way, and thus it may well happen that of two defendants jointly indicted for the commission of the same crime, one under bond and the other confined in jail, the one under bond, availing himself of the rights conferred by the statute, may be able to establish his innocence by the depositions of witnesses residing without the state, while the other, confined in jail, and deprived of such testimony, may be found guilty because of such deprivation."

If the question of procedure were governed by the laws of Ohio, and not by the Common Law, the same rule would obtain and an affidavit would have been required of the accused setting forth what he expected to prove by the absent witnesses. 23 O. S. 599; 33 O. S. 533.

[56] E. REFUSAL TO ALLOW EXAMINATION UPON VOIR DIRE.

Counsel contends (Brief, p. 10) that the trial court erred in not permitting the members to be examined upon their voir dire, like jurors.

The facts regarding this motion are set forth in the Statement of Facts at the beginning of this brief.

Canon 29, Section IV. provides for the disqualification of any of the bishops composing the court if related to either the accuser or accused by consanguinity or affinity. It will be conceded that in addition to the disqualifications mentioned in the Canon just quoted, that bias or prejudice on the part of any member of the court should likewise disqualify such member from sitting as one of the trial judges.

The method of determining the existence of the disqualifying fact is not, however, by motion to examine the members of the court. No precedent for such procedure can be found under the Canon Law or the Common Law. Such facts, if they exist, should be brought to the attention of the court by proper application supported by affidavit, in which the court as a whole would be requested to eliminate the disqualified member from participation in said trial. The objection to the offending member cannot be made by challenge. (33 Corpus Juris 1014.) The affidavit in support of such motion must not merely allege such bias or prejudice in general terms but must set forth with particularity some ground of disqualification and the facts on which the disqualification is based; and the statement must be positive and not on information and belief. (33 Corpus Juris 1015 and cases there cited.) Such application and affidavit having been filed it is for the court to determine whether such disqualifying facts exist.

[57] Counsel for defendant did not follow the proper procedure in any respect. In the first place, no sufficient affidavit was filed. Counsel directs the court's attention to defendant's motion and affidavit to permit examination of members of the court as found in the Statement of Facts in the beginning of this brief, in which the defendant expressly states that he has no knowledge or means of knowing whether or not the members of the court are disqualified. This statement is the direct antithesis of the statement which would bring this question before the court.

The court's ruling on this question is in words as follows:

"The court is of the opinion that there has not been presented here any authority showing that it is the right or the prerogative of the presented to make any such interrogation of the court * * * if, however, the presented should submit to the court information upon affidavit that he has reason to suppose that there is any said disqualification on the part of any member of the court, the court promises that it will take such under due consideration and decide upon what seems to them its merits."

The record shows that no such affidavit was filed on the part of the defendant.

F. SUFFICIENCY OF THE PRESENTMENT.

Defendant claims that the trial court committed error in denying defendant's motion to quash the presentment. The grounds of this motion and the ruling of the court are stated in the Statement of Facts at the beginning of this brief.

[58] I. What Law Governs.

Before proceeding to a consideration of the particulars in which the defendant claims that the presentment is insufficient, we desire first to call attention to the general principles of law upon which the sufficiency of the presentment is to be judged.

We believe that the first question which the court will determine in considering the question of sufficiency of the presentment, as well as some other issues which may arise later in the trial, will be as to what system of law is involved in the particular question at issue--whether, for example the question is to be decided according to the principles of the law of the State of Ohio, or of the Common Law, as applied in various jurisdictions in this county, or whether the question should be determined by the canons of this Church, or by the general law ecclesiastical, and in case the general ecclesiastical law is involved, this Court will wish to have counsel point out where that general ecclesiastical law is to be found, and in how far English precedents are to be consulted with reference to it.

Beyond question, the express canons of this Church are a primary authority, and where they speak, no other authority, secular or ecclesiastical, need be referred to.

As to presentments, we find the following provisions in the canons of this Church: Canon 30, Sec. I:

"The presentment of a bishop for holding and teaching publicly or privately and advisedly doctrine contrary to that held by this Church, shall be made by any three bishops of this Church exercising jurisdiction. Such presentment shall be in writing, signed and verified by the bishops presenting, and shall be delivered to the Presiding Bishop."

[59] Section VIII of the same canon provides for the filing of the presentment with the Presiding Bishop, and its transmittal to the President of the Court and to the accused.

These are the only provisions of the canons covering the matter of the presentment, and they do not lay down any rules as to the contents of the document or the form in which the offense is to be stated therein. So far as the canons are concerned, therefore, it would seem that the presentment would be sufficient if it set forth the language used by the accused and contained a charge that such doctrine was contrary to the doctrine of the Protestant Episcopal Church. It would seem that it was a matter entirely within the discretion of the Trial Court, looking at the question from the broad principles of justice to say, whether under all the circumstances the presentment was sufficiently specific to let the defendant know the nature of the charge against him.

We submit that in this case the presentment as originally framed gives the defendant perfectly definite information as to exactly what charge he should be expected to meet, and that he has been under absolutely no uncertainty in preparing his case for trial. To require anything more of the Presenting Bishops would be a mere technicality.

Passing now from that portion of the canon which relates to presentments, and considering the sections which relate to the trial, we find the following: Canon 31, Sec. III.

"The accused being present and the trial proceeding it shall be conducted according to the principles of the Common Law, as the same is generally administered in the United States; and the laws of the state in which such trial is held, so far as they [59/60] relate to the law of evidence, shall be adopted and taken as the rules by which said Court shall be governed."

It will be noted that this section relates, not to the presentment, but to the procedure on the trial. It would, therefore, seem that the principles of the Common Law were not to be applied to the determination of the sufficiency of the presentment. In view, however, of the possibility that this Court may take the opposite view of the matter and may hold that this section should be so construed as to furnish, not only rules of procedure for the trial, but a rule of construction for the presentment itself, we have thought best to discuss the rules of the Common Law with reference to indictments.

If, however, as we contend, it is the ecclesiastical law which governs this case, we assume that we should look first to the precedents established in similar trials in the Episcopal Church in the United States. We should, secondly, be entitled to go back of the law of the Episcopal Church in the United States to the general principles of the law of the Church of England, in so far as they are applicable to the conditions in this Church; in much the same manner as the civil courts rely upon English precedents in determining the Common Law of the land. (Hoffman, on the Law of the Protestant Episcopal Church, pages 38-41.)

Finally, in the event that any uncertainty still remains, we should go back of the law of the Church of England to the general canon law of the Catholic Church in the West as it existed in England at the time of the English Reformation. (Phillimore Eccl. Law, Vol. 1, pp. 14-16). The authority for so doing is to be found in 25 Henry VIII, c. 19. In this statute it was provided:

[61] "Such canons, constitutions and ordinances being already made, not contrariant to the laws and statutes of the realm, or repugnant to the customs of England and the King's prerogative, should be used and executed as they were afore the making of this act."

II. Common Law Rule.

We will first consider the sufficiency of the presentment as tested by the general rules of the Common Law covering indictments.

The gist of the charge against the defendant in this case is the publication of certain statements alleged to be erroneous. The charge is, therefore, analogous to a criminal charge of libel or of perjury, and in so far as any precedents from the Common Law are of value, they would necessarily be precedents relating to indictments for libel or perjury. We will, therefore, have these offenses in view in discussing the principles of Common Law as to the sufficiency of indictments.

We find the following general principles enunciated as to indictments in general in Vol. 31 of Corpus Juris:

"The Common Law required an indictment to be certain to every intent, without any intendment to the contrary--but this rule is no longer in force in most jurisdictions, and certainty to a common intent, or reasonable certainty, is held sufficient. The indictment should contain such a specification of acts and descriptive circumstances as will, on its face, fix and determine the identity of the offense with such particularity as to enable accused to know exactly what he has to meet, to give him a fair and reasonable opportunity to prepare his defense, and avail himself of a conviction or acquittal as a bar to further prosecution arising out of the same facts. Such certainty is also required that the court, on an [61/62] inspection of the indictment, may determine that an offense has been committed, and may confine the evidence on the trial to the issue presented, and that a reviewing court may determine from the record whether or not error has been committed." (Pages 660-662).

The Common Law rule is thus stated in Volume 1 of Bishop's New Criminal Procedure, Sec. 110:

"Standing beside the presumption that the defendant is innocent, the Common Law rules have compelled from the prosecuting power such a statement of the nature and cause of the accusation as would import to him, who is supposed to know nothing of it, outside of the written words, reasonable information of what he is to encounter at the trial, thus enabling him to collect his proofs and avoid the injury of a surprise."

The Ohio decisions are to the same effect. In 54 O. S. 1; 35 O. S. 82; 32 O. S. 28, the rule was laid down that the indictment should contain material facts constituting the crime, so that the Court, applying the law to the facts charged against the defendant, may see the crime that has been committed.

Unreasonable strictness ought not to be required. The highest degree of certainty is not required; certainty to a common intent is sufficient, and no rule ought to prevail which would only serve to shield the guilty instead of protecting the innocent. 2 O. S. 564; 45 O. S. 275; 19 O. S. 545; 4 O. C. C. 551; 06 O. S, 215; 25 O. S. 464-468; 35 0. S. 604; 36 O. S. 322; 27 O. S. 572.

Unnecessary detail to be avoided.

"A good criminal pleader will never attempt more certainty than the law requires, for fear that in the minuteness of detail, he may, by chance, [62/63] misdescribe in some essential particular, which would be fatal error."

Spencer vs. State, 13 O. S. 407, 32 O. St. 28, 4 W. L. B. 279.

"Matters of evidence, as distinguished from the facts essential to the description of the offense, need not be averred." (31 Corpus Juris, page 672.)

"Where the particular facts are peculiarly within the knowledge of accused, it has been held that the offense may be averred generally." (Page 673.)

"Except where the time is of the essence of the offense itself, it is sufficient to lay it on any day previous to the finding of the indictment, and during the period within which the offense may be prosecuted." (Page 681.)

As to the defendant's right to a Bill of Particulars, this authority holds as follows:

"The motion should be allowed only where the charges of an indictment are so general that they do not advise defendant of the specific acts of which he is accused, and the court feels that the bill should be furnished him so that he may properly prepare his defense. The State cannot be required to give a Bill of Particulars as to matters peculiarly within the knowledge of defendant, or at least, the refusal to require it is not ground for reversal, nor can the statement of a mere conclusion of law be required * * *. The granting or refusal of a bill of particulars rests within the discretion of the court to be exercised with reference to the circumstances of the peculiar case. Defendant is not entitled to the bill as a matter of right, and the ruling of the trial judge upon the motion will not be disturbed by an appellate court where such discretion has not been abused. Unless a bill of particulars appears to the court in the exercise of reasonable discretion to be necessary to enable accused to prepare his defense, it need not be required." (Pages 751-752.)

[64] We will pass now to a consideration of the law applying particularly to indictments for libel.

"A publication libelous upon its face, needs no colloquium or averment of extraneous matters; but if the charge is not defamatory per se, there must be an inducement setting forth extraneous facts giving the language defamatory meaning, and a colloquium showing this meaning or application, otherwise the indictment is demurrable." (25 Cyc. 575.)

"An indictment must set out the defamatory matter verbatim; to give the substance is not sufficient. Moreover, the indictment must profess on its face to give the very words complained of * * *. If the plain, natural meaning of the words is actionable per se no innuendo is required." (25 Cyc. page 578.)

Coming now to the rule as to indictments for perjury, we find the same authority using the following language:

"At Common Law and under the statutes, it is necessary, in an indictment for perjury, to expressly and positively negative the truth of the alleged false testimony, by setting forth the true facts by way of antithesis. A mere general averment of falsity is not sufficient. The indictment must by particular averment negative that which is false, and expressly contradict the matter falsely testified to by the defendant, and must specifically, directly, and without uncertainty designate the particulars wherein the matter sworn to was false." (30 Cyc. 437.)

In a note appended to this statement of the text, the book says:

"When the negation of the truthfulness of the testimony in itself shows the truth, the indictment need not affirmatively show what the truth was."

[65] III. Application of Common Law Rules In This Case.

Let us apply these principles now to the language of the presentment. Counsel for the defendant claims that a general reference to the doctrines contained in the Book of Common Prayer, or to those contained in the Apostles' or Nicene Creeds is not sufficiently specific to entitle him to know what he is charged with, or to prepare his defense. Now, it will be seen from the consideration of the law as we have quoted it above, that no arbitrary rule, or rule of thumb, is laid down by the law as to exactly what averments the presentment must contain. The whole matter is within the sound discretion of the trial court, and must be resolved by the court in accordance with its own good judgment as to whether the presentment, as it stands originally, sufficiently advises the defendant of what he is to meet. As judges in civil courts so often tell their juries, the court and jury are not supposed to leave their common sense behind them when they mount the bench or enter the jury box. Judged by this standard, can the defendant possibly be in any uncertainty?

Let us take, for example, the first passage from defendant's book, which is set out in the presentment. "Within the social realm, humanity is my new divinity, and your divinity (my old one) is a symbol of it, or else, as I think, he is at best a fiction and at worst a superstition." Now, this quotation contains precisely three statements, namely, first, that humanity is the God of the defendant; and, second, that the God of the Episcopal Church is a symbol of humanity; or else, third, that he is a fiction or a superstition. In this passage, defendant has stated for himself the antithesis between his belief and that of the Church. He has himself framed the issue. He cannot be in any uncertainty as to that [65/66] passage, that the issue involved is as to the communion of saints, the resurrection of the dead, the forgiveness of sins, or any of the other doctrines contained in the Creeds.

In regard to the second section of defendant's book which is quoted in the presentment, defendant himself draws the antithesis between the god of capitalism which is real gold, and the god of Christianity which is an unreal, imaginary spirit. As to this section, can he have any doubt as to which of the doctrines of the Church is involved, or as to what portions of the Prayer Book are relevant?

In the third section, defendant says: "I doubt that he, Jesus, lived." Can he have any doubt as to what doctrine of the Christian faith is involved in that statement?

So we might go on through all of the specific passages set out in the presentment. Each one is brief, concise, and to the point, and states in language as specific as though the Church Advocate had himself framed it, exactly wherein the defendant comes into conflict with a doctrine of the Church.

Turning now to the authorities above quoted as to libel and slander, I wish to call the Court's attention to the following language used:

"A publication libelous upon its face, needs no colloquium or averment of extraneous matters."

The meaning of that language is this: If I should make a statement that John Smith had mismanaged particular funds entrusted to him, and should make a long and rather equivocal statement of what he had done, the court would require the prosecutor, in case he saw fit to charge me with criminal libel, to state exactly [66/67] what form of dishonesty or breach of trust he claimed that I had accused John Smith of committing in the words which I had used. If, however, I should make the statement that John Smith was a thief, there would be no necessity for any averment by the prosecutor as to the meaning of my language. It seems to me that the statements of defendant which we have set out in the presentment, are quite as unequivocal.

Referring to the language of the authorities cited as to indictments for perjury, I call the attention of the Court to this passage:

"When the negation of the truthfulness of the testimony in itself shows the truth, the indictment need not affirmatively show what the truth was."

The meaning of that passage is this: If the indictment contains a quotation of a long, involved and equivocal bit of testimony given by the defendant, it is evident that some portions of it will be true and some will be false. Furthermore, it is quite possible that the falsehood of the portion which is false will not appear upon the face of the language; the meaning of the witness may not be perfectly clear or may be subject to two constructions. In that event, the prosecutor, in order to fairly apprise the defendant of what he is expected to meet, would be obliged to point out exactly which portion of the statement he alleged to be false; and if the language were equivocal, he would be obliged to give his version of what the defendant meant, or of what, in his opinion, the language could fairly be understood to mean. But that if the words of the defendant upon which the prosecution for perjury was based, consisted of one simple statement perfectly clear upon its face, and the prosecutor alleged in his indictment that that [67/68] statement was false, the law would not require him to go through the perfectly useless rigmarole of stating the negative of the statement of the defendant.

Now, it is apparent in this case that the statements of the defendant picked out in the presentment, are clear, concise and to the point, and defendant does not need a specific negative. For example, it would be absurd to require the Church Advocate, in the presentment to use any such language as the following:

"On page 89 the defendant states 'as an objectivity there is no such divinity (as the God of Christians); he is a subjectivity existing in the imagination of orthodox Christians'; whereas, in truth and in fact the doctrine of the Protestant Episcopal Church is that God is an objective divinity, and that he is not merely a subjectivity existing in the imagination of orthodox Christians."

Or, take for example, the 14th section from defendant 's book. It would be a ridiculous farce to require the presentment to state:

"The defendant says: 'The birth, death, descension, resurrection and ascension of all the Saviour-gods, not excepting Jesus, are versions of the sun-myth'; whereas, in truth and in fact the doctrine of the Protestant Episcopal Church is that the birth, death, descension, resurrection and ascension of Jesus is not a version of the sun-myth."

I wish also to call the attention of the Court to a rule of the Common Law, that everyone is presumed to know the law. Now, the doctrine of the Protestant Episcopal Church is a part of the law of that Church. It is, as the writers say, "lex credendi." Every member of the Episcopal Church is presumed to know the law of the Church, and hence is presumed to know its doctrine. [68/69] To be sure, there may be differences of opinion about the doctrine of the Episcopal Church; but the same thing applies to the civil law. There not only may be, but are, very diverse views as to certain points of law. In fact, very few cases are tried in the civil courts which do not involve honest differences of opinion as to what the law governing the case, in all its particulars, is. In fact, no one actually knows what it is until the Supreme Court has spoken upon the particular case. Nevertheless, the rule applies; for it is, as the lawyers say, a presumption of law and not of fact. In other words, it is a rule of convenience without which the administration of the law would be entirely blocked. A better statement of the rule is sometimes given as, "ignorance of the law excuses no one." If knowledge of the law is presumed of a private citizen or of a private communicant of the Church, surely the rule would apply to one of the governing authorities of the Church, such as this defendant. It smacks of unreality and hair-splitting casuistry for this defendant to come into court and ask that the prosecuting officer should advise him in the presentment as to what is the doctrine of the Protestant Episcopal Church.

Defendant in his motions and brief, asks not only that the Church Advocate should amend the presentment by specifically stating doctrines which it is alleged the defendant has contravened, but also that the presentment should state exactly where these doctrines are set forth,--as to whether they are to be found in the Articles of Religion, the Creeds, or some other portion of the Prayer Book.

It is submitted that under the authorities above set forth, such particularity is not required, for two reasons.

[70] (a) As we have contended, the doctrine of the Episcopal Church is not a matter of fact but a matter of law. It is part of the law of the Church. To require the presentment to state where that doctrine is found would be quite equivalent to requiring an indictment to state the page, number, or date of enactment, of the particular statute, or statutes, which it is alleged the defendant has "violated. It is a fundamental principle of the law of criminal pleadings that such statement is not required. In fact, it never forms a part of an indictment.

(b) If the court hold that the doctrine of the Episcopal Church is not a matter of law but is a matter of fact, then the question as to where that doctrine is to be found, or out of what portions of the Prayer Book it is to be proved, is a question of evidence merely. It is a fundamental principle of pleadings in civil courts, as will be noted from the authorities cited above, that it is not necessary for the indictment to set forth matters of evidence.

IV. The Rule of the Canon Law.

In the foregoing portions of the brief, we have considered the sufficiency of the presentment from the point of view of the Common Law. We submit, however, that under the language of the Canon (Canon 31, Sec. Ill) this matter, being preliminary to the trial, must be judged by the rules of Canon Law. With that in view, we will consider the ecclesiastical precedents.

First, as to precedents in the American Episcopal Church. The outstanding case of this sort, in fact, so far as I know, the only case which has been reviewed and passed upon by a Court of Review, is that of the Rev. Algernon S. Crapsey. In that case, which is [70/71] reported in a printed report published by Thomas Whittaker, the defendant was represented by very eminent counsel, James B. Perkins and Edward M. Shepard. The presentment contained long and involved quotations from defendant's book, not, as in the present case, short, snappy and unequivocal statements of the defendant. After quoting the statements, as I have said, the presentment went on to charge as follows:

"It being intended by said language, words and terms, to express the presbyter's disbelief in, and to impugn and deny the following doctrines, to-wit, first, the doctrine that our Lord Jesus Christ is God, the Saviour of the world, as contained and enunciated in the Apostles' Creed and Nicene Creed, as set forth, indicated and declared in the book of Common Prayer of the Protestant Episcopal Church in the United States of America."

Five other doctrines were alleged to have been contravened, and the language was precisely in the same form as the one quoted.

It will be noted that this presentment does allege the doctrine of the Church. No doubt the reason for doing so was because the statements of defendant upon which the charge was based, were prolix and perhaps equivocal. However that may be, the presentment does not state the portions of the Prayer Book wherein the doctrines were set forth, as defendant contends we should do in this case. Nevertheless, the eminent counsel for defendant took no exception to the form of the presentment in this regard, either by way of demurrer or preliminary motion, or by way of objecting to the testimony later on. Upon the proofs being taken, the portions of the Prayer Book and Creeds relied upon by the Church Advocate were introduced in evidence and read into the record.

[72] We will now consider the English precedents.

The offense with which the defendant would be charged in England, differs in certain details from that under which the defendant is charged by virtue of the canon in the American Church. In this Church, the charge is "teaching publicly and privately and advisedly any doctrine contrary to that held by this Church."

In the Church of England there are three offenses analogous but not exactly corresponding to the offense of teaching false doctrine as set forth in the provision just quoted in the American Church. These three offenses are heresy, controversion of the XXXIX Articles of Religion, and depraving the book of Common Prayer. The provisions with regard to these offenses are discussed in Phillimore Ecclesiastical Law, Vol. II, Pages 842-853.

Heresy was an offense under the Canon Law as it prevailed in the realm of England prior to the Reformation. Under that old Canon Law, there were some eighty-eight different sorts of heresy. Under the statute of 1 Eliz. c. 1., heresy was to be confined as follows; The courts--

"shall not in anywise have authority or power to adjudge any matter or cause to be heresy, but only such as heretofore have been determined, ordered or adjudged to be heresy by the authority of the canonical Scriptures or by the first four General Councils, or any of them, or by any other General Council wherein the same was declared heresy by the express and. plain words of the said canonical Scriptures; or such as hereafter shall be ordered, judged or determined to be heresy by the high court of Parliament of this realm, with the assent of the clergy in their convocation."

[73] By the statute, 29 Car. 2 c. 9, it is enacted that the process for burning heretics shall be repealed, but that

"nothing in this act shall extend to take away or abridge the jurisdiction of Protestant Archbishops or Bishops or any other judges or any ecclesiastical courts in cases of atheism, blasphemy, heresy, or schism, and other damnable doctrines and opinions, but that they may proceed to punish the same according to his Majesty's ecclesiastical laws, by excommunication, deprivation, degradation and other ecclesiastical censures."

The penalties referred to in the foregoing section, are defined as follows in Burns' Eccelesiastical Law, Ninth Edition, Vol. II. "Deprivation is an ecclesiastical censure whereby a clergyman is deprived of his parsonage, vicarage, or other spiritual promotion or dignity." (Page 141.) "Degradation is an ecclesiastical censure whereby a clergyman is deprived of his holy orders which formerly he had." (Page 139.) "Degradation and deposition are synonymous." (Whitehead Church Law, Page 126.) Says Hoffman in his treatise on the Law of the Protestant Episcopal Church in the United States, Page 427. "I do not find that by the Canon Law there was any substantial difference between deposition and degradation."

The offense of contravening the XXXIX Articles was established by 13 Eliz. Chap. 12.

"If any person ecclesiastical or such as have ecclesiastical living, shall advisedly maintain or affirm any doctrine contrary or repugnant to any of the said Articles, such affirming * * * shall be just cause to deprive such person of his ecclesiastical promotions."

It will be noted that those two provisions differ both in respect to the nature of the offense as defined, and in [73/74] respect to the penalty imposed. The first relates to any teaching contrary to the Scriptures or the decrees of the first four General Councils, while the second relates to a teaching in contravention of some one or more particular Articles of Religion. In this respect, neither of the offenses are exactly identical with the offense of which this defendant is charged. As to penalty, the first is punishable by deposition from the ministry, the second only by depriving the offender of his benefice. It follows that a clergyman who was not actually holding some parish or other ecclesiastical position, could be proceeded against only under the general law of heresy.

With these distinctions in mind, let us now examine the English precedents so far as they relate to the manner in which the offense should be stated in the presentment, or as it is called in the English law, the Articles of Charge.

The case of Williams vs. The Bishop of Salisbury, which is cited by counsel for defendant, arose under a charge of contravening the XXXIX Articles, as were also most of the other English cases. It is quite true that in cases arising under this charge, the English courts held that the Articles of Charge must specify three things: (a) the exact language of the defendant upon which the charge is based, (b) a statement by the prosecuting officer as to wherein each of said quotations from the writings of the defendant are in contravention of the Articles of Religion, and (c) the name and number of the Article, or Articles, alleged to be contravened.

The reason for requiring this particularity is quite plain under the English statute, for that statute relates to the contravention of some particular Article of [74/75] Religion, and of course the charge should be specific as to which Article of Religion the defendant contravened. Under our canon, the offense does not consist in the contravention of any particular Article of Religion. In that respect, our canon is more nearly analogous to the provision of the English law regarding heresy.

The distinction is clearly set forth in the case of Heath vs. Burder, reported in Brodrick & Fremantle page 212. On page 215 the court says:

"Appellant prays * * * that the Articles in this criminal suit be ordered to be further reformed so as to contain an exact and precise statement of those portions of the XXXIX Articles of Religion which it is alleged that the passages from the appellant's sermons contravened, and also a specification or statement of the unsound doctrine or heresy which the appellant is alleged to have advisedly maintained. * * * The Articles thus excepted, appear to rest upon two distinct grounds of complaint, one an alleged violation of the statute 13 Eliz., the other for publishing doctrines in derogation and depravation of the Book of Common Prayer * * * The case of Sanders vs. Head was not a proceeding under the 13 Eliz. The defendant was charged with having maintained proposition in derogation and depravation of the Prayer Book, and the Court seems to have taken a distinction between the two classes of offense and to have held that in the latter a great laxity is allowed; that when the general law ecclesiastical is relied on, it is not necessary to plead specifically; that where the offense is one generally cognizable in the ecclesiastical courts, it is not necessaiy to point out the particular canons or statute on which the proceedings are founded."

And so as stated by Phillimore Ecclesiastical Law, Vol. II.

[76] "In the case of Hodgson vs. Oakley, in 1845, an unbeneficed clergyman being proceeded against under the general ecclesiastical law for maintaining and affirming contrary to the true, usual, literal meaning of the Articles of the established Church all Roman doctrine, and being convicted thereof, was inhibited from performing any ministerial duties whatever within the province of Canterbury, until he should retract his errors. It was holden, as the offense charged was for maintaining and affirming all Roman doctrine, not to be necessary to specify any Articles of doctrine in particular."

Upon the point raised by counsel for defendant that it is necessary that the presentment should not only set out the language of the defendant, but should also interpret that language and state what erroneous doctrines it is alleged to contain, we wish to call attention to the opinion in the same case of Heath vs. Burder above referred to. On page 220 of the report of that case, the court used the following language:

"What may be necessary for this purpose (That is to apprise the defendant of the offense with which he is charged) must depend upon the circumstances of each particular case. If a single, distinct passage complained of contains a plain meaning, which admits of no doubt, it may be sufficient to set it out, and to state that it is directly contrary and repugnant to such one or more of the XXXIX Articles as are conceived to be opposed to it. In such a case, the defendant is fully apprised of the real nature of the charge. He may, if he pleases, insist that the proposition which he has maintained is not contrary to the Articles; or he may admit that it is so, and recall it. But the case is far otherwise when a number of passages are collected together, which enunciate no single, definite proposition, which embrace a variety of topics, some [76/77] extracts having, to an ordinary understanding, no meaning at all, and others expressed in. language with respect to the meaniing of which different guesses may be made by different minds."

The case of Heath vs. Burder, from which the foregoing extract was quoted, was a case arising under the statute of 13 Eliz. for contravening certain of the Articles of Religion. For that reason, as we have already stated, the court held in the language which we have just quoted that it was necessary to name the particular Article of Religion involved, a necessity which does not exist in this case. The significant thing about the Ian-gauge which we have quoted is that the court holds that if a single distinct passage of the defendant is complained of, it is sufficient in the presentment to set it out in the language of the defendant, and it is not necessary to state in detail the doctrine of the Church, which is alleged to be contravened.

Under the authority of the foregoing cases, it is clearly not the duty of the Church Advocate to make the presentment more specific in the respects prayed for by the defendant. The American precedent in the Crapsey case does not require it. This is not a prosecution such as those under the English statute for contravening the XXXIX Articles, and hence does not necessitate an enumeration of the Articles or portions of the Prayer Book alleged to be contravened. The language of the defendant is not uncertain or expressed in words "with respect to the meaning of which different guesses may be made by different minds." And hence does not make it necessary for the presentment to specify wherein the language is contrary to the doctrine of this Church.

[78] G. JUDICIAL NOTICE.

The question as to whether the court would take judicial notice of the doctrine of the church and where it is to be found has already been discussed in connection with headings IV and VII of defendant's brief.

Defendant in his argument upon this point overlooks the fact that in a determination of what is the doctrine of the Episcopal Church there are two elements involved: First, where is the doctrine of the Episcopal Church authoritatively stated; and, second, what is the construction to be placed upon the language of such statements. The first point is a question of fact of which the court will take judicial notice. The second point is a question of law, and is for the court, and not the witnesses, to determine.

Now upon the question of fact the court took judicial notice that the doctrine of the Episcopal Church is stated in the Prayer Book, for the reason, as the court stated in its opinion, that the Prayer Book had been legally enacted by the General Convention, the supreme law making body of the Episcopal Church, as binding upon all its members. The court also took judicial notice of the contents of the Prayer Book, and that within the Prayer Book are contained the creeds and certain other statements of doctrine.

This the court had a perfect right to do. In fact it was its duty to do so. These facts fall entirely within the definition of judicial notice stated by defendant on page 20 of his brief, as follows:

"The acceptance by a court for the purposes of the case, of the truth of certain notorious facts without requiring proof."

The construction to be placed upon the language of the Prayer Book is quite another matter. The [78/79] question as to how far the creeds are binding upon the membership of this Church; the question as to what other portions of the Prayer Book are dogmatically binding; the question as to how the language of the creeds and other portions of the book is to be construed,--all these questions are matters of law for the court to determine. The doctrine of judicial notice is limited to facts and not law. Hence the construction of the Prayer Book language is not a matter of which the court takes judicial notice. It comes within the other principle as being a matter of law which it is the duty of the court to determine and the performance of which duty it is not permitted to abdicate to witnesses, expert or otherwise.

Upon any question of fact of which the court took judicial notice, the defendant might, it is true, have the right to introduce evidence. For example, he might have introduced evidence that the resolution of the General Convention approving and authorizing the Book of Common Prayer was not in fact legally enacted; that the requirements of the constitution regarding the passage of legislation were not obeyed in some particular. Or he might have introduced evidence to show that the Prayer Book as printed did not conform in some particular to the version which was enacted by the General Convention. He might point out some misprint or other discrepancy. This is all that is involved in the doctrine of Wigmore, as quoted on page 20 of defendant's brief. This is quite a different matter from introducing evidence as to the construction of the language of the Prayer Book, and the determination as to its authority or the authority of any portion of it in matters of doctrine.

[80] Argument of Doctrine.

A--INTRODUCTION.

By far the greater portion of defendant's brief is occupied with a discussion of the teaching of Bishop Brown and of the Church and an attempted justification of Bishop Brown's position. This is quite as it should be. For, after all, the only meritorious question in the case is as to whether, after all the evidence was in, the Trial Court did or did not err in finding that the teaching of Bishop Brown, as contained in the excerpts from his book set out in the presentment, contained "doctrine contrary to that held by this Church."

It is quite evident that this question contains three elements and three only:

(a) What is the doctrine of the Protestant Episcopal Church?

(b) What is the teaching of Bishop Brown?

(c) Are the two in conflict?

It should be self-evident, as stated by the Church Advocate in his address to the Trial Court, and as quoted by defendant in his brief on page 45:

"We are not trying the truth of Bishop Brown's teachings. That is not in issue. As members of this Church, to be sure, we are convinced of the truth of our position; we are convinced that the doctrines of this Church are founded not only on the Holy Scriptures but on immutable truth; but that is not the issue in this case. The issue in this case is a very narrow one and it is this: Do the doctrines and teachings of Bishop Brown contravene the doctrines of the Protestant Episcopal Church?"

[81] On reading defendant's discussion, however, one is astounded to note that very small effort is made to reconcile the teachings of Bishop Brown with the doctrines of the Episcopal Church. The whole tone and tenor of the brief is to the effect that they are irreconcilably in conflict, and that the doctrines of the Episcopal Church are outworn, crude, and antiquated, and that Bishop Brown has been divinely appointed to substitute for them a new Gospel.

For example, on page 50 counsel for defendant pays his respects to the doctrine of the Trinity in the following language:

"Has not the time arrived for the Church to purge itself of this Phallic survival, this make-believe, this hypocrisy? Why cannot we have a little common sense and honesty in religion!"

On page 59 counsel reiterates the denial of the defendant of the deity of our Lord in the following language:

"He could not have been in literal, objective reality Very God of Very God; He was too plainly not all-knowing, all-wise nor all-loving * * * not even in ethics and morals can one, without serious difficulty claim Him as all-wise and all-good. For belief in evil spirits as the cause of disease has filled the earth with misery and lighted the fires of witch burning, yet Jesus either believed or pretended to believe in this superstition. If the former He was not all-wise; if the latter, it argues moral limitations still more embarrassing * * * His teaching on divorce left the woman the helpless victim of the husband's caprice with no corresponding right."

On page 68 he relies upon the authority of one Doctor Couchoud, whose qualification as a historian and [81/82] Biblical scholar seems to be based upon "a medical training and experience in French hospitals for nervous disorders and morbid affectations of the mind." The implication intended by the writer of the brief is plain, that the whole gospel story is the emanation of a disordered mind and may best be analyzed by an alienist. For example, on page 70:

"Dr. Couchoud offers the theory that as Peter says 'Jesus Christ maketh thee whole' the ecstatic evangelist simply has Jesus Christ perform directly what the original anecdote credited him with doing through the medium of Peter * * * thus the main foundation for the historicity of Jesus Christ, when tested, dissolves into the thin mists of neurotic rhapsodists' visions born of ecstatic poring over ancient prophetic writings."

There is more of the same thing ad nauseam. The whole content of pages 63 to 82 is concerned in breaking down every fact upon which the Christian doctrine is based. It is significant that not a single effort is made in this portion of the brief to produce a theological authority in this or any other Church in support of the theory that the story of the earthly life of Jesus is a myth.

In short, the defendant appears to be not in the least concerned to equate his teaching with the doctrine of the Church, but rather to use this unique opportunity to play the Samson. If he must relinquish his office as Bishop, he would lay hold of the pillars of the Church and bring the whole edifice crashing to ruin about him.

A discussion of the doctrine of the Church and of wherein Bishop Brown's teaching contravenes it, demands first a consideration of where the teaching of the [82/83] Church is to be found; secondly, what are the specific doctrines of the Church in the particulars in which the Church Advocate claims that the defendant has violated them. Strictly speaking, the Church Advocate need go no further. It is not incumbent upon us to justify the teachings. However, if we should leave the discussion there, we might seem to imply that the teachings of the Church were arbitrary or incredible. "We have therefore seen fit to present, in connection with each doctrine discussed, some considerations as to its inherent validity and necessity.

"We undertake this discussion of the doctrines of the church with great trepidation. For philosophizing is not our metier. Our license to practise law did not include any authority to deal with matters philosophical. Much less do we feel qualified to discuss the doctrines of the church, and were we not in these points in consultation with others better qualified Ave should be abashed to make the effort. As it is, neither we nor our theological advisors desire to be understood as intending to represent that the discussion of the doctrines of the Church, which we have essayed, is to be understood as in any wise other than a personal interpretation of them. We do claim for it that it is entirely in accord with the authoritative doctrine of the church; but we do not of course intend to convey the idea that it is the only interpretation of that doctrine, or that it is necessarily the best interpretation. "We trust that the court will keep this caveat in mind; and that if in anything we have failed through ignorance to grasp and state the meaning of Catholic doctrine, the court in its wisdom will apply the correction which may be necessary.

[84] B--WHERE IS THE DOCTRINE OF THE CHURCH TO BE FOUND?

Defendant takes the position (page 44) that:

"The Church nowhere has formulated in its corporate capacity what shall be accepted as the doctrine of the Church."

This is the most astounding statement, but quite in accord with the attitude of the Defendant in his "Communism and Christianism," where he says (Page 82), "I could be a Jew and an Englishman as conscientiously as a Christian and an American." Apparently he means to imply that he could be a Jew and a Christian Bishop, or an Englishman and Governor of the State of Ohio, with equal facility.

However, as we have said, we do not agree with the contention of the accused that the Church has never formulated its doctrine.

We assume this truth to be self-evident that the Protestant Episcopal Church, like any other body, ecclesiastical or secular, has inherent power so far as human rights and laws are concerned, to determine the conditions upon which its members may be admitted to membership and may retain their membership, and that it may define its teaching in such manner as it sees fit.

We assume as we have said that from the human point of view all these matters are within the power of the Church to legislate. So far perhaps, the Defendant will agree. If we understand his position however, he seems to hold that the Church has not, as a matter of fact, ever defined its doctrine, at any rate not further than to affirm that it is based upon Holy Scriptures, leaving every individual member to read whatever he will into or out of the Scriptures. Defendant seems also [84/85] to hold another opinion essentially at variance with his first position, namely that the Church has defined its doctrine and that such doctrine is defined and formulated by its individual writers and theologians. From both these positions we dissent.

This Church is, as we have said, the sole authority for its own doctrine. The Catholic creeds come to it with the Catholic consent, which makes them ecumenical; but within this Church what makes them authoritative for us is not the Councils or their age-long acceptance, but the constitutional action of the General Convention which is the representative action of the Church itself. The formularies enacted by it are its sole expression of authoritative doctrine. If per impossibile it should constitutionally give up the Nicene Creed as it did the Athanasian, that creed would then cease to be an authoritative expression of the Church's doctrine. It might thus cut itself off from Catholic Christendom, but its action would be authoritative for its members and no one could thereafter appeal to the Nicene Creed as the doctrine of the Church. It would have no moral right to do this, but it would have the legal authority.

On the other hand no tenet could become part of the Church's doctrine by common consent, even if the consensus of divines should be unanimous. Our doctrine is not determined by theologians, whose opinions, however, true, have no authority as such, but only by legislative action. Thus, certain views of scriptural events are now quite generally current, different from those of other times; but these have never been legally acted on, and neither their ancient nor their present view form any part of our doctrine. The opinions of churchmen, however numerous, are not the doctrines of the Church.

[86] All formulations definitely ordained by legislative authority remain legally binding until repealed. They may cease to be operative practically, but like laws, they may be appealed to as of force.

There is a difference between a doctrine definitely formulated and an interpretation or explanation of it. For instance: the restoration of our Lord to perfect human life in body and in soul may be interpreted in various ways with varying theories of the nature of the risen body.

Variation in interpretation of creeds has been exhibited throughout their history. For example: "Descended into Hell," "Ascended into Heaven" and "Resurrection of the flesh." But no interpretation which evacuated the very essence of a credal statement is legitimate or permissible. This is a clear legal principle. Thus, interpretation of the Constitution of the United States as though it established a monarchy is manifestly not an interpretation but an abuse of language.

The legislative enactment of the doctrine of this Church is as follows: This Church in General Convention on October 16, 1789, enacted the following resolution:

"By the Bishops, the Clergy, and the Laity of the Protestant Episcopal Church in the United States of America. This Convention having in their present session set forth the 'Book of Common Prayer and Administration of Sacraments and other rites and Ceremonies of the Church' does hereby establish the said book; and they declare it to be the liturgy of this Church and require that it be received as such by all the members of the same."

We find on examining the Book of Common Prayer that it does contain very solemn and specific statements [86/87] of belief. It contains in the first place the Apostles Creed and the Nicene Creed and it provides in the rubrics preceding them that one or other of them shall be said by the minister and the people at every service of this Church. Every person to be baptized or his sponsors must first affirm

"I do believe all the Articles of the Christian faith as contained in the Apostles Creed."

Every person before confirmation is expressly challenged by the Bishop,

"Do you here in the presence of God and of this congregation renew the solemn promise and vow that you made or that was made in your name at your baptism; ratifying and confirming the same; and acknowledging yourself bound to believe and do all those things which you then undertook or your sponsors then undertook for you."

It is evident from the foregoing that this Church has by proper legislative authority laid down the Apostles and Nicene Creeds, at least, as its authoritative doctrine.

Referring again to the Book of Common Prayer we find that it contains "A catechism, that is to say, an instruction to be learned by every person before he be brought to be confirmed by the Bishop." In this catechism we find the following question: "Rehearse the articles of thy belief." In answer to this question the person is required to repeat the Apostles Creed. Later the catechism explains these "articles of belief" as concerned with God the Father, God the Son, and God the Holy Ghost.

One word needs to be said as to the place occupied by the prescribed ritual of the Prayer Book in the determination of doctrine. The ritual, the forms of prayer [87/88] and thanksgiving, is not intended as a precise definition of the doctrine. It does, nevertheless exemplify doctrine. Lex orandi lex credendi. The law of prayer is the law of belief. Men do not pray to a God in whom they do not believe, nor do they pray otherwise than as they think God wills them to pray. Making all due allowance for inexactitude in the language of devotion, nevertheless the ritual prescribed in the Prayer Book does show forth the doctrine of the Church. We have a right to take the definitions of Bishop Brown and substitute them for the words defined as they are contained in the prayers; and if we find as a result of this test that the prayer is reduced to utter nonsense, we have a right to conclude that the definition proposed by Bishop Brown is not in accord with the doctrine of this Church.

To take but one example of many, Bishop Brown has affirmed his belief in a Trinity of which Matter is the Father, Force is the Son, and Law is the Holy Spirit. If, now, we substitute his definition of the Father in the Lord's Prayer we have something as follows: "Our Father, Matter, which art not in Heaven (because there is no Heaven) hallowed be the name of Matter; may the kingdom of Matter come; may the will of Matter be done,' etc."

Counsel for defendant, although maintaining that the Church has never formulated its doctrine, quite inconsistently proceeds to base an argument as to the doctrine of the Church upon the Articles of Religion. They accuse the Prosecution of "being for some mysterious reason rather timid in using these Articles."

As a matter of fact we have not planted ourselves upon the Articles of Religion, and the reason is not mysterious at all. It is simply that these Articles, while [88/89] valuable as an expression of the opinion of the Divines of the Church of England in the 16th Century, have never been enacted as dogmatic tests to be required either of clergy or laity of the Protestant Episcopal Church in America.

The early history of the American Church discloses that there was very grave difference of opinion as to the place to be given the Articles of Religion. One group desired that they should be made of binding authority upon this Church as they are upon the Church of England. The other group desired that they should be rejected altogether. As a consequence, it was determined to print them at the end of the Prayer Book, but without enacting them as part of the required doctrine of this Church.

The contrast in this respect between the Articles and the Creeds is marked. Unlike the Creeds, the Articles are never made the subject matter of inquiry addressed to candidates for baptism or confirmation. The Church of England has always required every candidate for the Ministry before ordination to subscribe his name to the Articles of Religion in token of assent thereto. This requirement has never been in force in the American Church.

As we have said, the Defendant quite inconsistently relies upon the Articles of Religion and upon these alone, as containing an authoritative statement of doctrine. He commits a second error in assuming that these Articles prescribe that there shall be no other or further statement or formulation of doctrine except that contained in the Holy Scriptures.

It is true that the Sixth Article recites

"Holy Scripture containeth all things necessary to salvation, so that whatever is not written therein [89/90] nor may be proved thereby is not to be required of any man that it should be believed as an Article of faith or be thought requisite or necessary to salvation."

To this statement we yield unqualified assent, not because the Articles of Religion are binding upon this Church as such, but because the doctrines of this Church and of every Church in Christendom, indeed the whole life of the Church, is based upon the Holy Scriptures.

It will be noted, however, that the Article above quoted does not assume to say that the Holy Scriptures contain a definite formulation of the doctrine. It simply affirms that every formulary must be based upon Holy Scripture and the things contained therein.

The Articles immediately negative the idea that every Christian is free to interpret Scripture as he likes. For in Article VIII it is recited:

"The Nicene Creed and that which is commonly called the Apostles Creed ought thoroughly to be received and believed, for they may be proved by most certain warrants of Holy Scripture."

To sum it up, as we understand it, the doctrinal authority of this Church is as follows:

The doctrine of the Church is not formulated in the Scripture, but is based upon Scripture which is the source and ultimate appeal. Nothing is to be required for necessary belief but what may be proved thereby. The Church's doctrine is always to be tested by the Scripture, but is contained in her own formulations, which are primarily the Creeds. These gather together the chief truths which the Church emphasizes. The doctrine of the Church is based upon Scripture. It is formulated in the Creeds. It is explained in the Church Catechism. It is exemplified in the ritual.

[91] These formulations are fixed, and interpretations of them are limited by their obvious and essential meaning. Take for example the First Article of the Apostles' Creed, "Maker of Heaven and earth," to which the Nicene Creed adds "and of all things visible and invisible." This is a convenient expression for "the universe." It is manifest that the emphasis here is upon the word "Maker" and not upon the ensuing words. The effort is not to indicate the size of the universe, its age, its characteristics; but to state that, whether recent or ancient, whether incredibly vast or limited--all of which is of no importance whatever--in any case it is of Divine creation, as is positively affirmed in the Scriptures. Here we have the obvious essential idea in contrast to possible variations of view as to quite unessential details, e. g. as to the process of creation, whether by evolution or by special creative acts. And here we have the definite formula in which the Church presents her doctrine.

C--SPECIFIC DOCTRINES CONTRAVENED BY DEFENDANT.

The Presenting Bishops and Church Advocate have charged that the quotations from Bishop Brown's books upon which they rely contravene the doctrine of this Church in the following particulars:

(a) The quotations offered in evidence and numbered 1, 2, 7, 9, 10, 13, 15, 17, 19 and 20 express his disbelief in and denial of the doctrine that God is a personal, objective reality, the Creator of all things, thus contradicting the first articles of the Apostles and Nicene Creeds.

(b) That quotations numbered 10, 13 and 18 express disbelief in and denial of the doctrine of the Triune Being of God, Father, Son and Holy Spirit, thus [91/92] contradicting the Collect and Proper Preface for Trinity Sunday, the opening invocations of the Litany, the Nicene Creed, the Gloria Patri and innumerable doxologies at the end of prayers.

(c) That quotations offered in evidence and numbered 4, 5, 6, 16, 21, 22 and 23 express disbelief in and denial of the Godhead of our Lord Jesus Christ and His present existence in glory, and His work for us, thus contradicting the following words contained in the Nicene Creed, "I believe * * * in one Lord, Jesus Christ, the only begotten Son of God; begotten of his Father before all worlds, God of God, Light of Light, Very God of very God; Begotten, not made; Being of one substance with the Father; By whom all things were made * * * And sitteth on the right hand of the Father; And he shall come again with glory, to judge both the quick and the dead; Whose kingdom shall have no end." These quotations from defendant's book also contradict repeated petitions addressed to the Lord Jesus and the invocation and pleading of His name at the end of prayers, as contained in the Book of Common Prayer.

(d) That quotations offered in evidence and numbered 3, 8, 11, 12, 14, 16, 21, 22 and 23 express disbelief in and denial of the historic existence of Jesus on earth, thus contradicting in particular the following language in the Apostles' Creed: "I believe in Jesus Christ, his only Son, our Lord; who was conceived by the Holy Ghost, Born of the Virgin Mary; Suffered under Pontius Pilate, Was crucified, dead and buried; He descended into hell; the third day He rose again from the dead; He ascended into heaven"; and also the following words of the Nicene Creed: "I believe in one Lord Jesus Christ * * * Who for us men and for our salvation came down from heaven, And was incarnate by the Holy Ghost of [92/93] the Virgin Mary, And was made man; And was crucified also for us under Pontius Pilate; He suffered and was buried; And the third day He rose again according to the Scriptures; And ascended into heaven"; and also the collects for the great commemorative festivals of the Christian year, to-wit, the First Sunday in Advent, Christmas, the Feast of the Circumcision, the Epiphany, the First Sunday in Lent, the Sunday before Easter, Good Friday, Easter Day, the Ascension, and others, and the Proper Prefaces for Christmas, Easter and the Ascension.

We propose to take up all of these doctrines in turn and in the first place to state what we believe to be the meaning of the doctrine as understood by the Church and the particulars in which Bishop Brown differs therefrom. Such an exposition ought not to be necessary in the case of a Bishop of the Church. But the naive statements in defendant's brief indicate either a childlike and lamentable ignorance of what the doctrines of the Church really mean or a deliberate intention to misrepresent them. Having so explained the doctrine, we desire further to show its inherent reasonableness and necessity. This again may perhaps be a work of supererogation. Yet, as we have stated before, since Bishop Brown has seen fit to attack the doctrines of the Church on the ground of their unreasonableness, we are unwilling to leave the subject without exposing the groundlessness of his attacks.

D--PERSONAL, OBJECTIVE REALITY OF GOD AS CREATOR OF ALL THINGS.

This doctrine is necessarily involved in the First Article of both Creeds. Personality is necessarily involved in fatherhood and the function of God as creator [93/94] is expressly stated. It is necessarily involved also in every prayer in the Prayer Book and, for that matter, outside it. For unless there is a God who can hear and who can answer or fulfill the prayer, the act of praying is a meaningless farce. Counsel for defendant in discussing this question at pages 46 to 49 does not seem to seriously contend that the defendant's Nature God can by any tour de force of reason be made to do duty for the God of the Christian.

Instead, with either childlike ignorance or deliberate intention to mislead, he proceeds to set up a caricature of the Christian God and then knock it to pieces.

Both Counsel for defendant and defendant himself in his book appear to suppose that belief in the personal objective reality of God involves anthropomorphism. Such is, of course, not the Christian belief. The term objective is not limited, even in common parlance to material or physical connotations. For example, the Christian believes that a man after death is still an objective reality, that his spirit is immortal, and that such immortality is objective in the sense that it really inheres in the soul itself, and is not merely subjective, as being a memory in the mind of his survivors. Yet no one supposes that the spirit is material or physical.

We believe also that God is personal, but by this we do not imply that His personality is a human personality and subject to the limitations of the human personality. We call the being of God personal rather than impersonal, because impersonal means less than personal. In admitting that the being of God is not identical with human personality, it does not at all follow that the being of God is identical with a stick or a stone. It might be perhaps more accurate to speak of Him as super-personal. [94/95] We cannot of course comprehend Him, but we have a right to assume, and the Christian does assume, that He more nearly resembles a human person than He does an inanimate object, or a whole universe full of them. Otherwise we arrive at the ridiculous conclusion that the human person is actually the highest psychic element in the universe and that life is a stream that runs up hill.

Counsel for defendant says, (page 47) "We are willing to stake our whole case upon the logical conclusions following from the first and most emphatic affirmation of the Articles of Religion."

Here, at last, we seem to be striking solid ground amid the maze of interpretations and reinterpretations through which we have been led by the defendant. Defendant is willing to concede, nay he insists, that the First Article of Religion is logical. Upon it he is willing to stake his whole case.

Upon a second look, however, the false hopes which he has raised are dashed. He cannot break himself of the habit of reinterpreting. He has reinterpreted the Bible, then the Creeds, and now we find him reinterpreting the Articles of Religion. Not only so, but he takes part only of the Article, and in reinterpreting it gives it an interpretation entirely inconsistent with the remainder.

Instead of staking his whole case on the First Article, the defendant, in reality, stakes it on the first clause of the first sentence of the First Article. He says that the clause, "There is but one living and true God everlasting, without body, parts or passions" affirms that God is impersonal. Defendant himself, if not his counsel, ought to know that the words "without body, parts or [95/96] passions" did not and do not have this meaning. Their precise meaning is clearly brought out in the original Latin form of the Article "unus est vivus et verus Deus, aeternus, incorporeus, impartibilis, impassibilis." "There is one living and true God, eternal, incorporeal, indivisible and incapable of suffering." Kidd on the XXXIX Articles, Vol. 1, pages 65-66.

Defendant says that the Article is logical, which must mean that it makes sense when read as a whole. But defendant did not quote it as a whole. He did not even quote the whole of the first sentence, for some mysterious reason. The remainder of the Article reads, "--of infinite power, wisdom and goodness; the Maker of all things both visible and invisible. And in unity of this Godhead there be three persons of one substance power and eternity, the Father, the Son and the Holy Ghost." Just how can it be said of impersonal substance that it is "living," or that it possesses infinite wisdom or infinite goodness, or that it is the maker or preserver of all things? Just how can it be said that the Article teaches that the Godhead is impersonal, whereas it states in express language that He is tri-personal? Verily, the possibilities of reinterpretation are wonderful. It must be a fascinating game to see what you can do with these good, old, every-day words of ours.

Counsel is correct that the words "Almighty" (Pantokratora, Omnipotentem) means "governing all things." We do not see how this helps defendant. The Governor of all things can hardly be described as a stone or other impersonal object, unless indeed defendant would have us revert to fetishism.

[97] E--THE TRIUNE BEING OF GOD.

I--Statement of the Doctrine.

This question is discussed at pages 49 to 55 of defendant's brief. Here again defendant allows his imagination to run riot in describing the orthodox doctrine of the Trinity. Does he actually suppose that anyone believes that God is divided into three parts, as Caesar describes Gaul to have been?

The statement on page 50 that the doctrine of the Trinity is a survival of Phallic worship is so absurdly untrue to the facts and so perversely obscene that it gives us a clue to the real intent and purpose of defendant, or those behind him, throughout these proceedings. He may be the childlike seeker after truth, the heartbroken and disillusioned believer who would save what he can from the wreck of his former beliefs. But certainly he, or some one, is taking delight, not only in shattering the beliefs of the Church, but in befouling them.

It ought not to be necessary to restate the doctrine of the Trinity for the benefit of a Bishop of the Church, but in view of the difficulty with it, real or assumed, displayed in the Brief, we will make bold to do so. We quote from the article "Trinity" in Hastings' Encyclopedia of Religion and Ethics, this article being written by Rev. William Fulton, D.D., Professor of Systematic Theology in the University of Aberdeen.

"There are three Persons (Hypostases) or real distinctions in the unity of the Divine Nature or Substance. The persons are co-equal inasmuch as in each of them the Divine Nature is one and undivided, and by each the collective Divine attributes are shared. As a 'person,' in Trinitarian usage is [97/98] more than a mere aspect of being, being a real ground of experience and function, each Divine Person, while less than a separate individuality, possesses His own hypostatic character or characteristic property. The hypostatic characters of the Persons may be viewed from an internal and an external standpoint, i. e., with reference to the inner constitution of the Godhead, or to the Godhead as related to the cosmos or world of manifestation. * * * It should perhaps be emphasized that the Trinitarian statement is never tritheistic, in the sense of affirming three separate self-conscious and self-determining individualities in the Godhead. When it is affirmed that there are three Persons in one God, the word 'person' is used archaically and not in the modern sense of a center or core of personality. It was a word employed by Tertullian as on the whole the best word by which to convey the idea of an inner principle of distinction or individuation (Hypostasis); and it was a good enough word when it bore a vaguer and more flexible meaning than it bears nowadays in Western Europe."

The same doctrine is similarly defined in the great standard of Anglican theology, Dr. Francis J. Hall's Dogmatic Theology, in the volume entitled "The Trinity" at pages 15 to 25.

II--Explanation of the Doctrine of the Trinity.

The existence within the Godhead of three eternal principles or differences of Person does not involve, as counsel for defendant claims, a mathematical absurdity. It does not require us to believe that three are literally one or that one is literally three, any more than the existence within the human personality of a mind and body, of a material and a psychic principle, or if you will, a [98/99] material and a psychic mode of functioning, requires us to believe that two is one or one is two.

The doctrine of the Trinity is that the Godhead consists of one Substance (Ousia, substantia) and three persons (Hypostases, personae). The English words are liable to misconstruction because we use them in so many different senses in common parlance. But when we get back to the original Greek or Latin terms we find that they have been given very accurate definitions and have a very precise connotation when employed in the Trinitarian formula.

Ousia means "being, existence." The Latin word substantia means "underlying essence." Neither ousia nor substantia means or ever meant "substance" in the sense of a quantity of matter, such as we ordinarily mean by the word. Therefore when we say that God is one "substance" all that we mean is to re-affirm the ancient Hebrew creed "The Lord, our God, the Lord is one."

But we say that the nature of God is not simple but trine. In making this affirmation the Church is not simply binding a useless burden upon the backs of its adherents. It is expressing a truth which is quite essential to a proper conception of the being of God.

Modern philosophy attacks the problem of existence from the outside in, rather than from the inside out, as was the practice of the ancient philosophers. That is to say, in the phraseology of Kant, we investigate first phenomena and from phenomena we draw such deductions as we may as to the essential nature of "the thing in itself." For example, in psychology we study the behavior of men and from their behavior deduce our theories as to the nature of their mental processes.

[100] Let us apply this procedure to the problem of the nature of God. Man has always instinctively thought of God in three aspects. We think of Him as acting transcendently; as being above and beyond Nature; as creating and ruling it. We think of Him also as acting immanently, as being in Nature and most of all in the heart of man, if man will but seek him there. We think of Him also as humanistic in a spiritual sense. That is to say, we think of the Divine mind as comparable to the human mind. We feel sure that the attributes of the human mind, such as love, mercy, justice, are to be found in perfection in the Divine mind. In this aspect God is capable of expression in terms of perfect humanity. Contrary though they appear to be, these three ideas of God have entered willy-nilly into the theologic thinking of every race and creed since the beginning of time. Sometimes, to be sure, one or other of these ideas has been magnified so as to eclipse the others, but the eclipse is never quite total.

Conceive a God of one mode of functioning only and you will see how distorted the picture is.

Picture God as transcendent only. He sits in majesty above the Heaven of Heavens. He formed the material universe and set it spinning as a clock-maker makes a clock and winds it up; not being immanent, if He interferes in Nature at all it is to frustrate and annul the processes of Nature. Not being humanistic, He cannot be touched with the feelings of our infirmities. We cannot ascribe to Him either mercy, love or justice. He is the Absentee Landlord of the English Deists and of Thomas Paine. He is the German Thor, the God of the destroyers of Belgium.

Picture God as immanent only. Not being transcendent, He (or shall I say It?) is caught in the toils [100/101] of matter as a fish in a net. Not being humanistic, he is impersonal and unmoral. He doeth good, He also doeth evil, since he is All. Evil indeed is but an undeveloped good. His ethic is quietism; His reward Nirvana. He is the God of Buddha.

Picture God as humanistic only. Such is the God of Mr. H. G. Wells. He is strong but not almighty; good but not perfect; wise but not omniscient. We may love, respect and pity Him; we cannot fear Him. Above him stands the Veiled One. He is Zeus prostrate before Ananke.

An adequate idea of God, therefore, demands all three concepts. In any well balanced theology they must exist at least implicitly. It is the peculiar glory of Christianity that it formulated what was before implicit and has succeeded fairly well in maintaining a balance between the three. God in the aspect of transcendence is the Father; God in the aspect of immanence is the Holy Spirit; and God in the humanistic aspect is the Eternal Son who becomes incarnate in the God-man Jesus.

Thus we say that, from what Kant would call the point of view of phenomena, it is necessary to conceive of God as triune in His manner of functioning, and that these three modes of functioning are necessarily co-eternal. It is of the very nature of God to act immanently, transcendently, and humanistically. It is unthinkable that He should for a moment cease to act, so to speak, in these three dimensions.

Now if there is any one tenet upon which all modern schools of philosophy agree it is that we must deduce our conclusions as to the nature of anything from its outward manifestations and from these alone. Hence we [101/102] are driven to say that the trinity of function in the Godhead must necessarily relate to and proceed from some real complexity of being. This is all that the Church has ever implied in the doctrine of the Trinity.

To express this complexity in the Godhead it was necessary to employ some word to denote the particular elements. In doing this the Greeks hesitated between prosopon and hypostasis. They finally chose the latter, because prosopon (mask) seemed to connote that the complexity was entirely one of outward appearance.

The Latins chose persona, in preference to substantia, which is the etymological equivalent of hypostasis. This word, persona, was in the Fourth Century a term employed in the Roman Law and defined as "an aggregate of legal rights and duties" or "the role or status that a man fills in the social organization" (Sohm's Institutes of Roman Law; Bouvier's Law Dictionary; Encyclopedia of Law and Procedure (Cyc.)). Thus, a corporation had a persona, but a slave had none. A citizen might have several personae,--for example, as tutor (guardian), fiduciarius (trustee), and so on. The word did not mean at all what we mean by person, much less personality.

Both Greeks and Latins were perfectly agreed as to what they meant by these two words and they meant exactly what has been stated above, as is perfectly plain from their writings on the subject that have come down to us. They never meant that the three personae or hypostases were three individuals, in the sense of being three centers of consciousness or will.

Augustine has expressed exactly the mind of the Church when he says that the word persona or hypostasis stands for three "somewhats" in the nature of God. He says, (De Trinitate, v. 9):

[103] "Non audemus dicere unam essentiam tres substantias, sed unam essentiam, vel substantiam, tres autem personas. Tamen, cum quaeritur quid tres, magna prorsus inopia humanum laborat eloquium. Dictum est tamen tres personae, non ut illud diceretur, sed ne taceretur."

III--History of the Doctrine of the Trinity.

Historically speaking, the doctrine of the Trinity was a necessary deduction from the experience of the early Church. This historical development is a perfectly open book. Every step of it may be traced in the abundant writings of the early Fathers. No one claims, or ever has claimed, that the Trinitarian doctrine as finally formulated is to be found full fledged in the New Testament. But what the Church does say is that the Trinitarian formula was a necessary implication from the facts in the life of our Lord and the religious experience of the early Church.

Space does not permit us to go into this history in detail. Suffice it to give a broad outline.

The impression created by Jesus upon those who came in contact with Him was that here was a personality which was undoubtedly human and yet which could not be explained in terms entirely of humanity. He impressed them as a man but at the same time different from and superior to any other human being. From the first they speculated as to this problem and the early result of their speculation was the affirmation of Peter, "Thou art the Messiah."

The question that concerned the Early Church was what sort of Messiah He might be. In view of the circumstances of our Lord's death and resurrection the early Disciples were driven to the conclusion that He [103/104] was not the sort of Messiah that the Jews had been expecting, that His nature was more exalted.

In casting about for an explanation of His life and nature they met with the Hebrew doctrine of the Word of God, as a being distinct from the Father, or perhaps as a mode of functioning of the Father himself. The two ideas were both current. Suffice it to say that the early Disciples recognized in Jesus a peculiar manifestation of God. This is perfectly apparent from the Epistles of St. Paul. In St. Paul's later epistles such as Colossians and Philippians, the Logos theology is stated, although the name itself is not employed. The Fourth Gospel goes a step further and definitely relates Christology to the Logos idea.

In the Early Church if there was any one thing which had vivid and intense reality for the Disciples it was the in-dwelling of a spirit that they felt to be superior to themselves and that manifested itself in ecstasies and also in more usual operations. This spirit they had no difficulty in identifying with the Holy Spirit, or the Spirit of God, which was also a concept that had long been current in Hebrew thought. (Ernest F. Scott, "The Spirit in the New Testament.")

The problem with which the Church wrestled during the early centuries was how to express the relationship between the Eternal Father, the Lord Jesus, and the Holy Spirit. The Trinitarian formula was the outcome of centuries of debate; a debate guided, as we must believe, by the Holy Spirit. The debate issued in a formula which, as it seems, to us, is the only possible way in which the three fundamental distinctions in the Godhead could be stated without at the same time lapsing into Tritheism.

[105] IV--Defendant's Theory.

As for the weird theory of the defendant that Phallism had something to do with the doctrine of the Trinity, it needs only to say that no such theory has ever been advanced by any reputable historian, or indeed by anyone except persons whose chief concern was to break down and contemn the Christian faith. Phallism was of course current in primitive religions and had some survival even as late as the beginning of the Christian era, but there is not the slightest scintilla of evidence that it was current among the Jews or early Christians at that time. In fact its place in the history of religion has been greatly over-emphasized. Perhaps the leading authority upon this subject is George Foote Moore, Professor of the History of Religion in Harvard University. In Moore's History of Religions in two volumes, he mentions Phallism only incidentally and in passing, in connection with certain primitive types of religion. In his more recent book entitled "The Birth and Growth of Religion," published in 1924, he discusses the various elements that went into the development of religions. Here, if anywhere, one would expect a discussion of Phallism. We find, however, that he says not one word of it.

The authority quoted and relied upon by defendant upon another matter connected with Christian doctrine is "The Origin and Evolution of Religion" by E. Washburn Hopkins. Here also we should expect to find a discussion of Phallism if, as defendant claims, it was an element of importance in the development of religion. But here likewise we find a total and significant silence, not only in connection with the development of the Christian Trinitarian idea, but in connection with any religion whatever.

[106] The subject is treated at length in Hastings' "Encyclopedia of Religion and Ethics," title Phallism, by E. S. Hartland, who is a recognized authority in folk lore and anthropology and the author of numerous books upon these subjects. He records any religious practices which could, by any stretch of the imagination be considered as related to or derived from Phallism. He has, however, apparently heard nothing of the theory put forth by the defendant that the Christian doctrine of the Trinity was derived from this source.

He has added these words of caution:

"In identifying Phallic symbols other than realistic representations, however, the greatest circumspection is required. All sorts of objects have been claimed as Phallic by writers whose imagination outpaces proof. Some actual or fancied resemblance has been too often deemed adequate evidence without showing the beliefs attached to the object or the rites performed in relation to it. (Page 819) * * * Widespread, however, as are the practices with which this article is concerned, and intimately as they are related to some of the deepest emotions, it is worth while to remind ourselves that they form a portion only of the history of religion. The caution is the more necessary since the subject exercises such fascination upon some minds as to have given occasion to the taunt that no one who studies it remains sane. Concentration of the attention is apt to cause any subject to assume an importance which it may not, in itself, deserve."

By some, says Dr. Hartland, newel posts have been held to be Phallic emblems. One wonders how the builder of a house could support his stair-rail without incurring the charge of Phallism. If the doctrine of the Trinity is to be referred to Phallism, why not the story of the Roman triumvirate.

[107] Defendant dismisses the doctrine of the Trinity as "psychic jugglery, demonstrably absurd by simple mathematics." This proves, as we have shown, that he has no interest in knowing what the doctrine of the Trinity is. What he does not seem to realize is that his conception of a Matter-Force-Law Divinity is open to the same criticisim unless he is frankly a tritheist.

It is also silly (no other word will serve the purpose) to say (page 51) "The entire scriptural foundation for the doctrine rested on I John v:7." That passage is of course a little marginal gloss which has crept into the text. There was nothing underhand about the matter whatsoever. It was written out in the margin by some copyist and was mistaken by a later copyist for an omission by the previous copyist and the later copyist wrote it into the body of the text.

This process did not occur until long after the doctrine of the Trinity was formulated and commonly accepted.

The passage was evidently not in the New Testament as known to St. Athanasius, since he never appeals to it in the Arian controversy. Athanasius, however, had plenty of Scripture to which he might appeal and did appeal. Such for example was the Trinitarian formula employed at baptism from very earliest days and stated in Matthew xxviii:19. In fact McGiffert in his work on the Apostles Creed (quoted by defendant) demonstrates, what is recognized by all scholars to be a fact, that the Apostles Creed developed out of this baptismal formula.

Otto Pfleiderer, the great German radical critic (Gifford Lects. ii, 35), admits "the Catholic dogma already emerges on the horizon in the Trinitarian formula [107/108] of baptism." The attempted construction of the language of this formula in such wise as to make in this triad any other unity than that of three equal divine persons, has been a failure. F. D. Maurice satirized such a construction as making it a command to baptize men "into the name of an abstraction, a man and a metaphor."

F--THE GODHEAD OF JESUS CHRIST.

Defendant's ingenuity in setting up men of straw to demolish is nowhere better demonstrated than in his discussion of the Godhead of our Lord on pages 55 to 62 in his brief.

He erects his man of straw in the first paragraph by the following definition: "By this must be meant the literal objective reality of the existence of Jesus Christ as identical with the Father God Jehovah." Having made such a man of straw he is quite right in affirming in the following paragraph that it would be a piece of insolence to ascribe to any member of this Court belief in such a doctrine. It would be indeed a piece of insolence, because the doctrine stated by the defendant is not and never has been the doctrine of the Church, as he knows or ought to know.

The doctrine of the Incarnation was developed in the Church, like the doctrine of the Trinity, after centuries of discussion, under the guidance, as we believe, of the Holy Spirit. Like the doctrine of the Trinity, it was founded upon the facts of our Lord's life on earth. It rests not alone upon these facts, but also upon the interpretation of them given in the Epistles of St. Paul and elsewhere in the New Testament in places too numerous to quote. For example, Col. I:xii et seq.:

[109] "Giving thanks unto the Father * * * translated us into the kingdom of the Son of His love, in Whom we have our redemption, the forgiveness of our sins; who is the image of the invisible God, the first born of all creation; for in Him (Christ) were all things created in the Heavens and upon the earth, things visible and things invisible, whether thrones or dominions, principalities or powers, all things have been created through Him and unto Him; and He is before all things; and in Him all things consist."

Again, Phil. II:5 et seq.:

"Have this mind in you which was also in Christ Jesus, who being in the form of God counted it not a prize to be on an equality with God, but emptied Himself, taking the form of a servant, being made in the likeness of men; and being found in fashion as a man, He humbled Himself, becoming obedient even unto death, yea the death of the cross. Wherefore also God highly exalted Him and gave unto Him the name which is above every name; that in the name of Jesus every knee should bow, of things in Heaven and things on earth and things under the earth, and that every tongue should confess that Jesus Christ, is Lord, to the glory of God the Father."

The same doctrine is taught in the prologue to the Gospel according to St. John:

"In the beginning was the Word, and the Word was with God and the Word was God, the same was in the beginning with God. All things were made by Him and without Him was not anything made that hath been made * * * and the Word became flesh and dwelt among us and we beheld His glory, glory as of the only begotten from the Father, full of grace and truth."

On these texts were based not only the doctrine of the Trinity but the doctrine of Incarnation. Defendant [109/110] appeals to the Scriptures as against the Church. To the Scriptures let him go.

Upon this scriptural basis the Church developed its doctrine of the Incarnation which finally found its formulation in the Formula of the Council of Chalcedon, A. D. 451.

"Following the Holy Fathers, we all with one voice teach men to confess that the Son and our Lord Jesus Christ is one and the same, that He is perfect in Godhead and perfect in manhood, truly God and truly man, of a reasonable soul and body (the word 'reasonable' in the Greek as used in this connection means 'having human reason') consubstantial (homo-ousios, that is to say one-in-being) with His Father as touching his Godhead and con-substantial (the same word is used in the Greek with the same meaning) with us as to his manhood. In all things like unto us except sin; begotten of His Father before all worlds according to his Godhead but in these last days and for our salvation of the Virgin Mary, the Bringer-forth of God (the Greek word 'theotokos' means 'one who bears or produces' and does not mean 'mother,' which would be 'meter') according to his manhood."

Let us turn now from this definition to Defendant's man of straw and we find him further defined on page 56 as follows:

"A literal acceptation of these phrases (the phrases about the birth of Our Lord in the Apostles and Nicene Creeds) is inconceivable, involving as it would a belief that before the creation of the world, a personal God begat upon the body of a virgin, born many centuries later, a son whose substance at birth and thereafter was the identical substance of the begetting divinity."

Defendant in this caricature of the Christian doctrine overlooks entirely the element of the human nature [110/111] of our Lord, which was so carefully guarded in the definition of Chalcedon quoted above. The Fathers were at pains to affirm that Jesus Christ was very man in every sense in which he was very God; that He had a "reasonable soul" as well as human body.

The Council went on to affirm that in Him were two natures, the human and the divine. The divine nature or element in Jesus Christ was the eternal Second Person of the Trinity; that is to say, that aspect of, or principle in, the Godhead which is capable of expression or adumbration in terms of perfect humanity,--as we have tried to explain in connection with our discussion of that doctrine. The doctrine of the Incarnation is the logical complement to the doctrine of the Trinity. It is to say that not only may God be described in terms of perfect humanity but that He has actually so manifested Himself.

As to the human nature however, the man Jesus,--the Creed of Chalcedon is as explicit as words can be made, to the effect that Jesus was not co-eternal with the Father but was born at a particular moment of time and of a certain human mother. The Virgin is described as the "Bringer-forth" of God, because she was the mother of the man Jesus, in whom the "fullness of the Godhead dwelleth bodily."

Defendant has quoted a number of passages from the New Testament in which' the words "Son of God" are applied to men in general. Of course the word had that use and meaning. Like all words in our language, it had and has several meanings, but it was used of Jesus also in a sense peculiar to Himself. This is particularly and strikingly true in the sayings of Jesus Himself. Nowhere does He use the phrase "our Father," except in the Lord's Prayer, which was a prayer that [111/112] He was giving to His disciples for their own use. Elsewhere it is always "your Father" or "my Father."

The distinction is clearly brought out in the following passage (John xx:17) "I ascend unto my Father and your Father and to my God and your God." If there is any feature of His teaching which is abundantly and transparently clear, it is that He was conscious of a relationship to the Father peculiar to Himself alone.

Schmiedel, who is one of the most radical of the German critics, in his article entitled "Jesus Christ" in the Encyclopedia Biblica, mentions nine sayings of Jesus which he calls the "pillar sayings." He says that, however much else we may know about the sayings of Our Lord, these certain few are to be unquestionably attributed to Him, for the reason that they could not possibly have been invented by others, that no one else would or could have thought of originating them and ascribing them to Him. One of these sayings is the following: (Mark XII, 32) "But of that day or that hour knoweth no one, not even the angels in heaven, neither the Son, but the Father."

Here we have a clear assertion of a unique relation to the Father, a relation above that of the angels. If all the rest of the New Testament were destroyed or proven to be a construction of later date, the entire doctrine of the Incarnation would be contained in this one passage and would be a necessary deduction from it.

The absurd lengths to which defendant is driven are nowhere better exmplified than in his quotation on Page 58 of the passage from John 1:18 "No man hath seen God at any time," to prove his point that the evangelist did not claim that Jesus was divine. This passage occurs in the very context in which the evangelist has been saying: "The Word became flesh and dwelt among us [112/113]
and we beheld His glory, glory as of the only begotten from the Father, full of grace and truth." Then immediately following the passage quoted by defendant: "The only begotten Son, Which is in the bosom of the Father, He hath declared Him." With this sort of interpretation or misinterpretation one could prove almost anything. One, for example, could prove atheism from the Bible by quoting the words from Psalm xiv:l: "There is no God" and leaving out the words, "The fool hath said in his heart."

The words at Gethsemene and upon the cross are not inconsistent with the Church's teaching but only with defendant's man of straw. The Church has always taught that in the being of Jesus Christ there were two wills, the human and the divine. The divine nature and will indwelt him and the union of the two natures was evidenced by the perfect harmony of the human with the divine will. Jesus, as man, always willed to do the will of God. We oftentimes express a similar, though not identical, idea, when we speak of a person who is entirely in harmony with the will of another person as his "alter ego."

Defendant plays fast and loose with the authorities whom he cites. He evidently "reinterprets" them, as he has reinterpreted the Bible, the Creeds and the Articles of Religion. On page 58 he makes "Hopkins (Origin and Evolution of Religion, p. 336)" authority for something that Hopkins does not say. On the same page he quotes a sentence from "Jas. Denney, Jesus and the Gospel, p. 399." Inasmuch as there are only 361 pages in that book, we have been unable to locate defendant's quotation; but if Denny wrote it, he never intended it as a denial of the unique sonship of Jesus; for the whole argument of the book is exactly to the contrary.

[114] We have been unable to verify defendant's citations from B. W. Bacon. If Professor Bacon really meant to say that "first-born and only-begotten son of God" was an ancient and recognized epithet of Israel, then we submit that the evidence for his statement is lacking.

The fact is that throughout the whole literature of the Old Testament Israel is referred to only twice as a "first-born son" (Ex. 4:22) (Jer. 31:9, 20), and in one other connection as a "son," without the adjective (Hosea 11:1). Two or three tests are slender evidence from which to deduce that the phrase was an ancient and customary epithet of Israel. As for "only begotten," it was never applied to Israel in any Hebrew literature that has come down to us prior to the time of Christ. Its only occurrence, so applied, in any Scriptural passage, canonical or apocryphal, is II Esdras 6:56. According to Dr. R. H. Charles, who is the recognized authority on the Jewish apocryphal writings, II Esdras was written in the year 100 A. D. (Charles, Apocrypha and Pseudepigrapha of the Old Testament, Vol. II, p. 542). At that date the epithet had long been applied to Christ and must have been well-known among the Jews; so that, if there was any borrowing, the Jews must have borrowed from the Christians.

To be sure, as defendant states, all men are called in the Bible sons of God; and if the writer wishes to emphasize God's love toward them, they are called beloved sons. But "only-begotten son" is a very different matter. If Christ is the "only-begotten" son, that is to say the only son, then the word son, as applied to him, must be used in a different sense; the phrase necessarily connotes a unique relationship.

On pages 59 and 60 of the brief, defendant proceeds to belittle the character of Jesus, insinuating in [114/115] paragraph 5 that He lent Himself to deceit and fraud, and comparing Him in another place to a Georgia field hand. Now, as we have said, the Church has always maintained the human nature of Jesus. That this human nature necessarily involved limitations of knowledge and a sharing in the belief of His times goes without saying, and has been called vividly to attention by Bishop Charles Gore in his Lux Mundi, published more than 30 years ago. In fact it is a commonplace of modern orthodox thought.

It does not follow, however, that He was subject to "moral limitations." In fact His sinlessness has been a doctrine of the Church throughout the ages. As we have said, the point of contact between His human nature and His divine nature rested in the perfect agreement of His human will with the divine will of the eternal Second Person of the Trinity.

It is significant in this connection that Dean Rashdall who is an authority several times quoted by defendant, examines this whole question in his Conscience and Christ and concludes that there is no evidence of "moral limitations."

On pages 61-62 defendant undertakes to show that "many eminent Churchmen before Bishop Brown have rejected belief in the literal godhead or objective divinity of Jesus Christ." In support of this he cites Loofs, who is not a member of any orthodox Church, and the Rev. R. Roberts who is a Unitarian. In addition to these he quotes Dean Rashdall and Prof. Leighton to the effect that the Logos conception cannot be sustained. Without agreeing with them in that conclusion, we simply desire to point out that the Logos conception is not the only interpretation of the life of Christ which is consistent with belief in his Godhead. Saint Paul in the [115/116] passages which we have quoted above, certainly declares the Godhead of Christ in unmistakable language but does not relate it to the Logos conception. It is not to be denied, however, that there are individuals in the Episcopal Church who, like Bishop Brown, have repudiated its teaching upon this as upon other points. That does not in the least excuse the present defendant.

G--HISTORICITY OF JESUS CHRIST.

I--Introduction.

On page 63 of his brief defendant restates his position as follows: "Bishop Brown doubts if Jesus ever lived as a historical reality on earth, but affirms belief in the subjective or symbolic truth of the divine figure of the New Testament.

The truth of the matter is that Bishop Brown goes a little further than to "doubt." In his book Communism and Christianism page 101 he says: "The birth, death, descension, resurrection and ascension of all the Savior-Gods, not excepting Jesus, are versions of the sun-myth." On Page 106: "There is no rational doubt about the fictitious character of the divine Jesus." On page 91: "Jesus is the sun-myth re-written to fit in with the ideals and hopes of the owning master-class of Christians." On page 154: "From the viewpoint of the self-styled one hundred per cent Christians I am a betrayer of Brother Jesus because I do not believe that he ever had any existence as a god, and that if He was at any time a man the world does not now and never can know one thing that he did or of one word that he said."

Defendant insists in his brief that he believes in "the symbolic truth of the divine figure of the New [116/117] Testament." What he means by this is admirably summed up on page 81 of his book: "Gods in the skies (Jesus, Jehovah, Allah, Buddha) are all right as subjective symbols of human potentialities and attributes and of natural laws, even as the Stars and Stripes on a pole, Uncle Sam in the Capitol and Santa Claus in the sleigh are all right as such symbols; but such gods are all wrong as objective realities existing independently of those who created them, as divinities and placed them in celestial abodes."

Defendant in his brief now launches himself upon the sea of biblical criticism, taking for pilot a Doctor of Medicine named Couchoud, whom he describes somewhere as having been connected with a lunatic asylum. After having read the conclusions of the Doctor as stated by defendant, one is forced to conclude that his theories were imparted to him by some of the patients with whom he came in contact.

The worthy Doctor seems, however, to have settled all these matters satisfactorily to himself and to this Defendant. The name of Dr. Couchoud leads us to apply to him what was said of another equally dogmatic individual: "When Couchoud takes snuff, we must all sneeze."

The other pilot in charge of the voyage is the retired army officer Colonel West, to whom we are indebted for the dissertation on the History of Religion, which he offered, or attempted to offer, in evidence at the trial. As to the learned Colonel, he has not yet been so bold as to publish a book, although we understand that one is in preparation. We are therefore forced to pass such judgment as we may upon his ability in his chosen field by quotations recited into the record by counsel for [117/118] defendant from his hook which is in process of preparation.

For example: "It may be a matter of some surprise to the Christian to learn that the Book of Revelations contains the oldest matter in the New Testament. As a matter of fact, it is the oldest book of the Bible." (I am quoting from the report contained in the pamphlet entitled Heresy published by Bishop Brown, at page 83.) These statements are indeed, as the writer says, calculated to occasion considerable surprise.

Again on page 80 of the same pamphlet "The Catholic Church recognizes seven Sacraments each year."

The origin of the doctrine of the Trinity is stated by Col. West in the following language (Page 79): "The simple religion of the early Essenes was transmuted into one more fashionable and grossly debased. Olympus was restored but her divinities were given other names. The Egyptian traditions of the Trinity were accepted and incorporated in Christianity. Osiris, Horus and Isis became God the Father, God the Son and God the Holy Mother. After many years the Holy Mother was demoted to an ordinary saint and the Egyptian Knepf, Holy Ghost, was given her place."

The astonishing feature of this last statement is that, as a matter of fact, so far from the "Holy Mother" being elbowed out of the Trinity by the "Holy Ghost," the fact was that the veneration of the Blessed Virgin developed rather late and it was not until the Council of Ephesus in 431 A. D. that it was even declared permissible to apply to her the title of Theotokos. Whereas the doctrine of the Trinity was settled in its broad outlines by the time of the Council of Nicea in A. D. 325 [118/119] and was determined in all its details before the Council of Constantinople, A. D. 381.

It is upon such experts as these that the defendant relies. The arguments which they adduce to discredit the historicity of Jesus are, in the language of the street, "old stuff." They were announced by Strauss and others a hundred years ago. Since then a multitude of German, French, and English scholars of the highest type have been going over the ground. The German scholars particularly have collected and digested the evidence with customary German minuteness, and with preconceptions distinctly anti-traditional. We would commend for the perusal of Bishop Brown and his advisers the story of their researches in Albert Schweitzer's Von Weimarus zu Wrede, entitled in English translation The Quest of the Historical Jesus. They would there see narrated the gradual and universal abandonment of the theories advanced in their brief. The swing "back to tradition" was led by Harnack. Today there is no competent scholar who has the temerity to expose himself to his fellow critics by asserting that Jesus did not exist.

II--External Evidence.

Defendant makes much of the fact that there is no mention of Christ or Christians in Non-Christian writers prior to Pliny (111 A. D.) and Tacitus (115 A. D.), and that in particular Josephus makes no mention of Him.

The negative argument is a particularly fragile one. As to the Romans, they were concerned with the doings of the Imperial City or if they gave any thought to the provinces it was simply as to the Roman army and civil government. There is no reason why they should have felt it necessary to mention the rise of a new Jewish sect.

[120] The silence of Josephus, if he was silent, is perhaps unexpected. In this connection however, it is fair to say that Josephus does mention the execution of St. James who was the first head of the Christian community in Jerusalem. It should also be noted that some competent scholars have declared themselves in favor of the authenticity of the passage from Josephus which speaks of Jesus but which is characterized by Defendant as an interpolation. (Article on Josephus in Hastings' Encyclopedia of Religion and Ethics.)

The argument from Josephus, however, if it proves anything, proves too much. The first work of which he was author, the Wars of the Jews, was written about 75 A. D. and another work, the Annals of the Jews, was written in the 90's. Now even according to Defendant's theory of the fictitious origin of Christianity, it must have been already widely spread throughout the Roman world and well known at the time the "Annals" were written. There can hardly be a doubt also that Christianity was known to all the Jews of Palestine by the time of the writing of the first book. Josephus was a Hebrew of the Hebrews. His purpose in writing was to commend Judaism to the Roman World. What a wonderful chance to' discredit its rising young antagonist Christianity! He had only to demonstrate that the whole Christ story was a myth.

However, having demonstrated to his own satisfaction from the external point of view the unhistorical character of Jesus, defendant goes on to give us his theory of the origin of the Gospels. He says that the Gospel according to St. Mark is at least 20 years later than St. Paul's letters. Dating the Epistle to the Galatians, now considered to be the first of the Epistles, at 50 A. D. which is rather earlier than most scholars [120/121] would date it, we should be obliged to say that the earliest of the Gospels cannot be more than 20 years later, i. e. A. D. 70. The date of the latest of St. Paul's Epistles, the early 60's, antecedes the Gospel by not more than five or six years according to the judgment of the best scholars. This Gospel is considered to be based upon a lost document or documents which are most truly represented in it, as defendant admits.

On page 66, defendant states "In Paul's letters Jesus in no way figures as a historical personage" and on page 71 he says "Mark's Gospel is a midrash on certain verses of Isaiah and the Psalms and on Paul's theology."

On the contrary, St. Paul frequently refers to the history of the life of Jesus, as for example: I. Cor. xv: 1-5:

"Now I make known unto you, brethren, the Gospel which I preached unto you, which also ye received wherein also ye stand, by which also ye are saved. I make known, I say, in what words I preached it unto you, if ye hold it fast, except ye believed in vain. For I delivered unto you first of all that which also I received, how that Christ died for our sins according to the Scriptures and that He was buried and that He hath been raised on the third day according to the Scriptures."

In fact Paul stakes everything on the historicity of Jesus. "If Christ be not risen from the dead, then is our preaching vain, and your faith is also vain. Ye are yet in your sins."

However, taking Defendant's theory of the matter, we are made to suppose that in the interval of about five years from the last of St. Paul's Epistles to the date of St. Mark's Gospel the "midrash on Paul's theology" [121/122] was composed, circulated throughout the Church and got itself accepted as veritable history.

Upon one point, no doubt, both parties to these proceedings can agree, namely, that before 25 A. D. Christ and Christianity were unknown, and that by 50 A. D. communities of Christians were to be found in Jerusalem, Antioch, Asia Minor, Greece, and other parts of the Mediterranean world; and that these Christians believed in a Lord, whom they called Christ and who they believed had lived in Palestine some twenty years before. We thus have a period of something like thirty years in which to place the origin and relatively wide diffusion of the new faith. Obviously, this is too short a period for the development of a folk-lore. The only alternative to the historicity of Jesus is to suppose that the whole story was an invention. This appears to be the position taken by the defendant.

That being the case, we may well expect him to enlighten us as to where and when the story was concocted and who got it up. Above all, how did the originators get it accepted? We should also expect him to tell us why they allowed such embarrassing contradictions and uncertainties as he has pointed out in his brief to creep into the system. Why did not the Christ whom they originated "speak to us plainly and not in parables?" Which of the ignorant country folk who were the first disciples devised this unequaled figure? Show him to me and I will show you a genius as great as the Jesus whom he depicted!

It is when they set themselves to answer such questions as these, that critics of the West type find themselves at a loss. The same thing holds true when they attempt to trace the supposed influence of heathen cults. It is all very well to point out analogies between [122/123] Christian beliefs and ceremonies and those of heathen religions; but when we come to inquire how, when, and by whom the transfer was made to Christianity, the problem is more difficult. None of these questions have been faced and answered by the defendant or any of his advisers.

III--Internal Evidence.

By way of internal evidence for the fictitious character of the Gospels, the defendant proceeds to cite various contradictory passages from them.

It would not take a Brown or a West to point these out. They have been noted by Christian theologians from the very beginning and have been seized upon by all of the enemies of Christianity as proof of its fictitious origin.

As a matter of fact, counsel for the defendant should be a good enough lawyer to know that if all the witnesses agree in every detail, their story may be without much hesitation set down as a collaboration and a fraud. The discrepancies of the Gospel stories are the best possible proof of their essential veracity.

IV--The Sun Myth Theory.

We come now to Defendant's explanation of the origin of the Gospel story. It is, he says, to be found in the sun myth. In support thereof he adduces a number of interesting parallels between Christian festivals and the festivals of some of the religions of the sun.

Now there is no doubt that it is true that the religions of surrounding peoples had their influence upon the development of Christianity. For example, as stated by Defendant (Page 78) it is quite likely that the [123/124] celebration of Christmas on the 25th of December is a borrowing of the Roman Saturnalia, which may or may not have been connected in some way with sun worship. No one has ever claimed that the time of the year in which Christ was born is known. Defendant states that His birth was originally celebrated on Epiphany. This is not strictly accurate. The fact was that the early Church celebrated the "manifestation" of Christ rather than His birth.

Easter is also claimed for the sun-myth theory. But Easter is an entirely different proposition. According to the Gospels Jesus was executed at the time of the Jewish Passover, which happened not at the vernal, equinox, but on the first full moon thereafter. This fixed the date for Easter; and it was Passover symbolism and analogies, and not the symbolism of a resurgent sun, that clustered about that feast. The whole matter is discussed by Carl Clemen (Primitive Christianity and its Non-Jewish Sources, pp. 182-204).

In this connection defendant relates another of these curious theories of his (paragraph 14) to the effect that, not only was Easter fixed in accordance with sun worship at the time of the vernal equinox, but that from this circumstance arose also the title ascribed to our Lord as the Lamb of God, since twenty centuries ago the sun at the vernal equinox was in the constellation of Aries. This is, as Mark Twain remarked when told of a rumor that he had died, "greatly exaggerated." As a matter of fact the title has reference to the lamb sacrificed by the Jews upon the Feast of the Passover. In passing it might be remarked that the Feast of the Passover arose some thousand years or so before the Christian Era, at a time when, according to the calculation of defendant, the sun was not in the constellation of Aries, [124/125] but of Taurus. According to the rules of the game, therefore, the Jews should have sacrificed at the Passover, not a lamb, but a bull.

On page 79, defendant says that the cross was a symbol of the sun. That is a new interpretation. We had heard it explained as a Phallic symbol. No doubt one explanation is as good as another; and we give defendant leave to choose whichever will best suit his purpose.

On page 79 defendant derives the sacrament of the Eucharist from the worship of Adonis, the Syrian sun god. This question is exhaustively discussed by Carl Clemen of the University of Bonn, a German scholar of the first rank, in his book entitled Primitive Christianity and its Non-Jewish Sources (pages 238-266). He comes to the following conclusion:

"The doctrine which the New Testament really teaches regarding the Lord's Supper cannot be derived, even collaterally or by way of supplement from pagan sources; with reference to it, at any rate, it is simply false to say that Baptism as well as the Lord's Supper already within the books of the New Testament underwent the fateful transformation from symbolic act to sacramentum efficax."

So we might go on endlessly with the various historic or pseudo-historic points raised by defendant. The same treatment accorded to the evidence for any other fact in history will yield like results. Some 75 years ago Archbishop Whateley wrote a book entitled Historic Doubts as to the Emperor Napoleon, in which he demonstrated how easy the process was, by a like course of reasoning to prove that Napoleon had never existed.

[126] CONCLUSION.

In general the position of Bishop Brown seems to be, not that his teaching is in accord with the doctrine of the Church, but that the doctrine of the Church is all wrong and he is divinely appointed to set it right. He says that he could be a Jew as easily as he could be a Christian. We therefore have a right to assume that what he would like to do would be to make over the doctrine of the Church so that it might be accepted by Jews without departing from their own belief. Judaism is not Christianity, and it is mere quibbling to assert, as he does, that the process of making Christianity over into something that would harmonize with Jewish belief is merely reinterpretation.

He sets out by paying lip service to the Holy Scriptures, taking his stand upon the Sixth Article of Religion, and believing, or pretending to believe, that the Church has no further formulation of doctrine than the Holy Scriptures. Then he attempts to demolish the authority of the Scriptures, attacking their historicity, deriving them from the sun myth, or Phallism, or Heaven knows what. Truly the Church Advocate was justified in his address to the Trial Court in saying that he felt like Alice in Wonderland.

We would reiterate, what we have several times insisted upon, that the only doctrinal question involved in this case is whether the teaching of Bishop Brown is, or is not, contrary to that of this Church. That question does not involve a discussion of the reasonableness of the doctrine. Neither is this Court nor the Advocate obliged to define the doctrine of the Church, except so far as may be necessary to determine whether or not the teaching of Bishop Brown contravenes it. The [126/127] conformity or nonconformity of Bishop Brown's teaching to the doctrine of the Church is the sole and only question.

Defendant says that the Scriptures need reinterpretation. We show him that the Church has already interpreted the Scriptures in the Creeds. Well, then, says he, the Creeds need reinterpretation; and it turns out in the end that he must, to accomplish his purpose, reinterpret not alone the Scriptures and the Creeds, but the dictionary. This, we submit, is not conformity to the doctrine of the Church.

If there remained any doubt in the minds of the members of this Court, after reading defendant's book, as to whether what he there said could legitimately be harmonized with the doctrine of this Church, surely all such doubt has been dispelled by defendant's brief.

There are only two alternatives for this Court. There is no occasion to obscure the issue. It is clearly drawn by defendant himself. Either this defendant is guilty as charged, or else Christianity is a form of sun worship or Phallism. A judgment of acquittal can mean nothing else.

All of which is respectfully submitted.

Charles Lemuel Dibble, Church Advocate.

John Harrow Smart, Of Counsel.

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