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 per