To the Clerical and Lay Delegates of the Sixth Annual Convention of the Diocese of Quincy:
GENTLEMEN:---On the 19th day of June, 1882, the Rev. Wm. B. Corbyn, D. D., was duly chosen Rector of the Church of the Good Shepherd, a Parish in which he had officiated uninterruptedly for more than twelve years, first as Rector, afterwards as "Priest in Charge." At the the time of his election Dr. Corbyn was a resident of this Diocese, President of its Standing Committee and Examining Chaplain, a Canon of the Cathedral, and Priest in charge of the Parish to which he was called as Rector. There was not, and there is not, any question as to Dr. Corbyn being "a qualified minister of this church" in good standing.
The election was made by the Vestry under the Canons of the General Convention, every requirement of the Supreme Law of the Church in America being carefully observed and fulfilled. This action of the Vestry was subsequently unanimously ratified by the congregation in Parish meeting assembled. It is not possible to cite an instance in the American Church where a Rector has been called with greater unanimity, or where all the prescribed forms for an election have been more carefully observed. The certificate of the election of Dr. Corbyn was duly placed in the hands of the Bishop of Quincy, and by him transmitted to the Secretary of the Convention, but the name of Dr. Corbyn was placed upon the roll of the clergy entitled to seats in the Sixth Annual invention, not as Rector of the Parish of the Good Shepherd, but as principal of the High School. When this error was brought to the notice of the convention a motion made to call the name of Dr. Corbyn as Rector of the Good Shepherd Parish, the convention deliberately rejected the motion--thus becoming a party to a great wrong inflicted, not upon the Good Shepherd Church alone, but upon the independence of all Parishes--in denying the right of a Parish to choose its own Rector.
The reasons which impelled the Church of the Good Shepherd to change the relationship existing between the Parish and Dr. Corbyn, and to recall him to Rectorship, are altogether local in their nature, therefore unnecessary to be mentioned or dwelt upon here. It is sufficient to say that it was the deliberate judgment of the congregation that the very existence of the Parish, its possible prosperity and future usefulness depended upon the immediate resumption of its full parochial rights, parochial duties, and parochial conditions.
The previous Diocesan Convention had levied no assessment upon the Church of the Good Shepherd for the Diocesan purposes. Nevertheless the Church of the Good Shepherd, in the fulfillment of a recognized obligation, had paid during the current year towards the support of the Episcopate the sum of $301.26, as will appear in the proceedings of the Sixth Annual Convention, if they are correctly printed--being a larger sum per communicant than was paid by any other Parish in the Diocese, the Cathedral congregation not being classified as a Parish.
Notwithstanding the plain fact that there was no delinquency on the part of the Good Shepherd Parish, and so reported to the convention by its own special committee to whom the matter had been referred--representation in the convention was arbitrarily and wrongfully denied to the Church of the Good Shepherd. The unwisdom of this extraordinary proceeding of excluding a Parish from representation, and denying a seat in convention to its Rector, is now apparent to all fair minded churchmen in the Diocese. Certainly it is a good thing to be in union with the convention, yet it is not, as some churchmen seem to think, a matter of vital importance. This Parish would, of course, prefer to be in union with its sister parishes, for the sake of sympathy and good fellowship, and for doing its part in the general work of the Diocese. But if the convention persists in denying this privilege we will abide the decision.
The Church of the Good Shepherd is engaged in no petty factional controversy or personal warfare. It is contending for principles of church polity as broad and as clearly defined as is the civil right of suffrage--principles affecting the integrity and independence of all Parishes.
1st. The right of every congregation to maintain its public services at its own expense.
2d. The right of every Parish to a Rector of its own choosing.
3d. The right of Representation.
4th. No taxation without representation.The wrong done to the church of the Good Shepherd is a wrong done to the whole American Church, because the right of a Bishop to withhold his consent to the settlement of a qualified minister of this church in good standing, in any Parish in his Diocese, has been very thoroughly discussed and passed upon in general convention. Consequently the attitude of the American Church upon the question cannot be mistaken.
A joint committee on "The Functions of Rectors, Wardens and Vestrymen," etc., consisting of Bishop Stevens, Bishop Howe, Bishop Huntington, Rev. Wm. Rudder, Rev. Morgan Dix, S. T. D., Rev. Noah H. Schenck, D. D., Hon. Orlando Meads, LL. D., Mr. Oliver Johnson and James A. Parker was appointed by the convention of 1877. This committee made a lengthy report to the convention of 1880, and recommended the following legislation:
Resolved, The House of Bishops concurring, that Title 1, Canon 14, Section 1, be amended so as to read as follows:
SECTION 1. Whenever a vacancy occurs in the Rectorship of any existing Parish, the Vestry shall (within three calendar months from the (late of such vacancy) elect a Rector for said Parish. Notice of such election shall be given in the form following:
SEC. 2. If the Bishop and the Standing Committee be satisfied that the person so elected is a qualified minister of this church, and the Bishop * * consent to the choice made; the Bishop * * shall so inform the Wardens and Vestrymen * * of said Parish, who shall then, and not before, ratify the minister elected. * * *
This report of the Joint Committee, together with the legislation recommended, was referred to the Committee on Canons, of which the Rt. Rev. Wm. Bacon Stevens, Bishop of Massachusetts, was chairman.
On the 26th day of October, 1880, the Bishop of Massachusetts presented the following report, viz:
"The Committee on Canons, to whom was referred the report of the Joint Committee on the Functions of Rectors and Wardens and Vestrymen, having considered the matter, respectfully report that they do not recommend the passage of the two Canons proposed in the report of the Joint Committee, for the reason that the said Canons seem to them in some respects in conflict with the rights of Parishes, and with the laws of some of the States; and also because, owing to the long continued illness of the chairman of the Joint Committee, and the death of Rev. Dr. Rudder, the mover of the resolution, the report states, that the Committee have not given to this most important subject the consideration which its magnitude demands. They therefore recommend the adoption of the following resolution:
"Resolved. The House of Deputies concurring, that the whole subject of the Functions of Rectors and Wardens and Vestrymen, together with the report of the Joint Committee already submitted, be referred to a Joint Committee consisting of three Bishops, three Presbyters, and three Laymen, to report at the next General Convention. All of which is respectfully submitted.
"For the committee,
"WM. BACON STEVENS, Chairman."On motion the resolution as reported was adopted.
See Journal of the General Convention of 1880. House of Bishops, pp.245, 296, 297. House of Deputies, pp. 73, 116, 157, 161, 458, 68.
It is very certain that the American Church thus far in its history, at least, has refused to confer upon its Bishops the power unlawfully set up in the recent Quincy Canon. It is now apparent to all fair minded men that the hasty enforcement of this questionable canon was a great wrong and a great mistake.
In order that the Diocese of Quincy may not be brought into contempt by a repetition of this blunder, we now respectfully submit for your perusal and consideration a learned and carefully prepared "opinion" from the Chancellor of the Diocese of Illinois, whose signature thereto will command the attention and respect of the whole American Church.
By order of the
VESTRY OF THE GOOD SHEPHERD CHURCH.
CHICAGO, June 15th, 1883.
To Rev. Wm. B. Corbyn, D. D., and Messrs. Richard M. Smith and E. J. Parker, Quincy. Ill.:
GENTLEMEN:--I am sorry that I have been too busy sooner to prepare the opinion which you desired, but my time has been so much occupied that it has been simply impossible.
Herewith I send you the opinion, which I found required more work and time than I anticipated. In attacking the validity of the Canon of your Diocese, I considered it important to make very thorough work of it; especially as the discussion is far-reaching, and involves the Canons of other Dioceses as well as that of your own.
This opinion is too long, but this I could not avoid, and do justice to the subject.
I am, very sincerely yours, etc.,
S. CORNING JUDD.
The Opinion. CHICAGO, June 15th, 1883.
Rev. Wm. B. Corbyn, D. D., and Messrs. Richard M. Smith and E.J. Parker, Quincy, Ill.:
GENTLEMEN:--I am in receipt of your joint letter asking for my opinion as to whether or not the Rev. DR. CORBYN in view of the facts hereinafter set forth, illegally settled as Rector of the Parish of the Good Shepherd, Quincy, and entitled to the privileges of that position.
It appears that some time ago the Vestry elected DR. CORBYN (a Priest canonically and personally resident in your Diocese), to be Rector of the Parish; upon whose acceptance the Church Wardens gave notice of such election to the Bishop of Quincy, by certificate in writing, in compliance with the requirements of sub-section [1] Section 1, of Canon 14, Title 1, of the General Convention Canons; that thereupon, after some delay, the Bishop "transmitted the said certificate to the Secretary of the Convention," as he was required to do, by sub-section [2] of the Canon mentioned, in case he was "satisfied that the person so chosen" was at the time a "qualified Minister of this Church;" but the Bishop transmitted with such certificate a statement, in effect, that he had declined to give his approval in writing of DR. CORBYN'S settlement as such Rector. This approval is still withheld, hut DR. CORBYN has, nevertheless, assumed and is now discharging the functions of Rector of the Parish.
There is and has been no pretense, as I understand, that DR. CORBYN is not "a qualified Minister of this Church;" but a Canon enacted by the Diocese of Quincy, prior to the Doctors election, provides that "No Minister shall be held to be confirmed in his office, or permitted to officiate, until the approval of the Bishop in writing has been given to his settlement;" hence, in the light of these circumstances, the question arises as to the Doctor's legal status with respect to the Rectorship, and his right to "officiate" as such.
I have no hesitation whatever in declaring my firm conviction that the Diocesan Canon referred to is in conflict with the Canons of the General Convention, and therefore void, and that DR. CORBYN is legally admitted and settled as Rector of the Parish, and entitled to all the privileges and prerogatives of such Rectorship, including the right to "officiate" as such.
As before suggested, it is my understanding that there is no pretence that DR. CORBYN is not "a qualified Minister of this Church" nor that he has been otherwise that canonically "qualified" for many years. Even if there were reasons for claiming the contrary, the Bishop, by the transmission of the notice or certificate of the wardens to the Secretary of the Convention, has estopped himself from so claiming, so far as the present inquiry is concerned; for such transmission was, in legal effect, an official declaration of his "satisfaction" that the Doctor was duly "qualified," according to the Canon. No further proceedings are contemplated by the Canon, in order to the complete admission or induction of a Minister into the Rectorship to which he is elected. The notice or certificate from the wardens was equivalent to a "presentation" to a Church or ecclesiastical benefice by the patron under an "advowson" in England; and the transmission of the certificate to the Secretary, as required by the Canon, was equivalent to "institution" and "induction" into the Church or benefice under English ecclesiastical law. JUDGE HOFFMAN, in his Law of the Church, says, that "as our Canon enjoins that it the Bishop is satisfied, "he is to send the certificate to the Secretary of the Convention, this act of transmission is equivalent to an admission. If, therefore, he neglect to transmit this certificate without good cause, it would be violation of this part of the Canon, and presentable under the third Canon of 1844; and whether he had good cause would then be investigated."--Law of the Church, p. 285. The "good cause" that would warrant this neglect must, as a general rule, be such, find such only, as would be sufficient to deprive an incumbent. Hoffman's Law of the Church, 282-3. And see also Burn's Ecclesiastic Law, p. 157, where the learned author says, that "generally, all such as are sufficient causes of deprivation (of incumbency) are also sufficient causes of refusal to admit to the same; which implies, of course, that no other causes are sufficient.
Sub-section [1], ยง7, Canon 14, Title 1, of the Canons of the General Convention, requires the presentation of a Letter Dimissory, or testimonial that he is "in regular standing," etc., in case of the removal of a Minister from the jurisdiction of one Bishop to that another; and sub-section [3] of the same section and Canon reads as follows:
"If a Minister, removing into another Diocese, who has been called to take charge of a Parish or Congregation, shall present a testimonial in the form aforesaid, it shall be the duty of the Ecclesiastical Authority of the Diocese to which he has removed, to accept it, unless the Bishop or Standing Committee should have heard rumors, that he or they believe to be well founded, against the character of the Minister concerned, which would form a proper ground of canonical inquiry and presentment; in which case the Ecclesiastical Authority shall communicate the same to the Bishop or Standing Committee of the Diocese to whose jurisdiction the said Minister belongs; and in such case, it shall not be the duty of the Ecclesiastical Authority to accept the testimonial, unless, and until, the Minister shall be exculpated from the said charges."
From these provisions, it will be perceived that the essential condition contemplated by the law-makers, in order to the "taking charge of a Parish or Congregation" by a Minister "called" (by the Vestry, of course,) for that purpose, is "regular standing," or freedom from apparently "well founded" charges "against the character of the Minister concerned, "which would form a proper ground of canonical inquiry and presentment." Unless there be such charges, it is made the "duty" of the Bishop or Ecclesiastical Authority "to accept" the Letter Dimissory or "testimonial;" and for what purpose? Why, surely not merely that the Minister may become canonically resident in the Diocese to which he is transferred, but that he may "take charge of the Parish or Congregation" to which he has been "called."
There is no condition imposed as to the Bishop's " approval given to his settlement." The condition of thus "taking charge" being expressed in the Canon, by an established rule of construction, well understood by every lawyer, all other conditions are excluded. The Bishop has no part or lot in the matter, so far as the Law is concerned, except the "duty" of "accepting" the Minister's letter of transfer, if he be "in regular standing," or, in other words, not subject to apparently "well founded" charges against his "character," "which would form a proper ground of canonical inquiry and "presentment." And if he be so subject, then the Bishop is bound to afford him the opportunity of "exculpation;" which being accomplished, the Bishop is left with no further discretion, but must accept the letter.
It cannot be argued, that this reasoning, drawn from the provisions of the General Convention Canon referred to, applies only to the case of a Minister "called to take charge of a Parish or Congregation" in a Diocese other than that in which he is canonically resident, and not to the case of a Minister, thus called, who is canonically resident in the Diocese of Parish to which he is called. This would be "sticking in the bark," and would involve the hypothesis that the General Convention has been guilty the stupidity and flagrant injustice of discriminating against clergymen of one Diocese of "this Church" favor of those of another; which hypothesis, in view the plain intention of the Canon, would illustrate a refinement in absurdity, the guilt of which would be shameful even in the veriest bungler in right reasoning.
Again.--Sub-section [2] 1, Canon 15, Title I. of the Canons of the General Convention, provides that: "A Minister is settled, for all purposes here or elsewhere mentioned in these Canons, who has been engaged permanently by any Parish, according to the rules of said Diocese, for any term not less than one year."
The condition of a Minister's "settlement" as declared by this Canon, is that he shall have "been engaged permanently by any Parish," etc. When thus engaged by the "Parish," the law of the General Contention says he "is settled for all purposes," etc. In the teeth of this provision, your Diocesan Canon says that he shall not be deemed as "settled" "until the approval of the Bishop in writing has been given," or, to again quote the very language your Canon recites that "no Minister shall be held to be confirmed in his office, or permitted to officiate, until the approval of the Bishop in writing has been given to his settlement." The conflict is direct and unequivocal; and the legislation of the General Contention being superior in authority, that of your Diocese must fall, as being inoperative and void.
If it be answered that the "engagement" of the Minister is, by the General Convention Canon quoted, to be made "according to the rules of the Diocese," and that such rules in your Diocese require the Bishop's "approval in writing of his settlement;" I reply that the General Convention Canon requires that the "engagement" shall be "by the Parish, according to the rules of the Diocese"--not by the Bishop, nor with his consent, nor yet with his "approval of the settlement'' "according to the rules of the Diocese," for the Canon significantly omits any condition involving such approval. "Expressio unius, est exclusio alterius."
The Canon of the General Convention, quoted, as before stated, requires the "engagement" to be made "according to the rules of the Diocese,"--not that the Minister shall be "settled" according to the rules of the Diocese, or according to the Bishop's sweet will; for the Canon fixes that matter beyond the control of any Diocese, and declares that he "is settled, for all purposes" when "engaged permanently by any Parish," etc. The "Parish" is to be the actor, ''according to the rules of the Diocese," in making the engagement, the Minister, of course, consenting to the engagement. From the standpoint of the Canon, the Bishop has no more to do with this "engagement" "according to the rules," etc., than has the Czar of all the Russias.
Now, what "rules of the Diocese" were contemplated by the General Convention in this legislation? Clearly, any rules the Diocese may see fit to make concerning the mode of "engagement," not in conflict with the superior law of the General Convention, The rules of some Dioceses require that the election of a Rector or other Minister shall be "by ballot," and after "open nomination at a previous meeting of "the Vestry duly convened," etc.; that "the notice for "the meeting of the Vestry, at which such election is intended, shall express such intention"; that the "call shall be in writing, and must express distinctly the official rank in which he is called, and the stipulation of salary support," etc.
Such "rules" are authorized by the law under consideration; but it would be worse than nonsense--it would be mockery--to hold that authority to prescribe such "rules," in respect to the "engagement" of a Minister "by a Parish" contemplates or warrants the enactment of Diocesan regulations by which the Bishop might defeat the "engagement" and "settlement," simply by withholding his approval.
The rights of Priests and Parishes of "this Church" are subject to no such uncertain tenure.
But, it may be asked whether it is not competent for a Diocese to add provisions to those of the General Convention Canons, in regard to the engagement and settlement of a Rector. To such inquiry the answer must be unequivocally no. The General Convention is the supreme law-making power of the American Church, and Diocesan legislation is subordinate to its Constitution and Canons.
Dioceses are authorized to legislate in respect to affairs of internal concern, so far, and so far only, as such legislation is in harmony with General Convention enactments; but whenever the hitter treat upon a given subject, the law-making voice of the Diocese is hushed, in the way of adding to or subtracting from the superior legislation, except so far, and so far only, is such superior legislation provides that it may speak. All legislation by the General Convention is tantamount to Constitutional Law, so tar as it bears upon inferior or Diocesan regulations or enactments.
This proposition is self-evident, and needs no demonstration.
Now, having reached this stand-point, let us adduce some analogous principles and authorities from the few of the State, which will probably clear away all doubts from unbiased minds.
JUDGE COOLEY, in his masterly work on Constitutional Limitations, says:
"When the Constitution" (or Fundamental Law) defines the circumstances under which a right may be exercised, the specification is an implied prohibition against legislative interference to add to the condition."--Cooley's Constitutional Limitations, 64.
And the learned Judge adds, that:
"On this ground it has been held by the Supreme Court of Maryland, that where the Constitution defines the qualifications of an officer, it is not in the power of the legislature to change or superadd to them, unless the power is expressly or by necessary implication conferred by the Constitution itself"-- 1 Thomas P. Owens, 4 Md., 180.
And see also Barker v. The People, 3 Cowen's R., 686, and the matter of Dorsey, 7 Port., 298.
Nor can a legislature add to the constitutional qualification of voters.--Rison v. Farr, 24 Ark., 161; St | Joseph, etc., R. R. Co. v. Buchanan County Court, 39 Mo., 485; State v. Williams, 5 Wis., 308; State v. Baker, 38 Wis., 71; Monroe et al, v. Collins, 17 Ohio I St., 665; State v. Symonds, 57 Me., 148; State v. Staten, 6 Cold., 233; Davies v. McKeeby, 5 Nev., 369; McCafferty v. Guyer et al., 59 Penn, St., 109; Quinn v. State, 35 Ind., 485; Clayton v. Harris, 7 Nev., 64; Randolph v. Good, 3 W. Va., 551.
And so, Congress has power to regulate commerce with foreign nations and among the States; nevertheless the States can exercise control over internal commerce within their respective limits, until Congress "sees fit to act." But when Congress acts, the State Authority is suspended."--County of Mobile v. Kimball, 102 U. S. Supreme Court Reports, 697-99. And see also, to the same effect, Escanaba, etc., Transportation Co. v. City of Chicago, 2 U. S. Supreme Court Reporter, April 10, 1883, part 3, pp. 185, 188.
It is unnecessary to draw the analogies involved in these various propositions and authorities. Any intelligent mind can make the application.
If anything further is needed in order to a correct Comprehension of the scope and effect of the Canons (If the General Convention on the subject under discussion, it may be found in the origin of those enactments and in the history of the same and of kindred law.
Sub-sections [1] and [2], of section 1, Canon 14, Title [I, before referred to, stand substantially as they were enacted in the 17th Canon of the General Convention of 1789, the word "induction," however, being then used in what is now sub-section [1], instead of "election" as at present employed. Dr. Hawks, in his work on the Constitution and Canons, treating of this matter, says, that "it will be remarked, that the induction of a Minister seems to have been considered as a matter of course, if indeed, it were not meant expressly to require it by this Canon."--Const. and Canons, p. 265. The learned author adds, what is unquestionably true, that "the opinions which were entertained in the Mother Country, and the decisions which had there been made on matters of ecclesiastical law or usage, up to the severance of these colonies "by the revolution, were, as far as applicable, held to be the guide of the Church of England here. Our branch of the Catholic Church, in establishing her system of polity, must therefore obviously have commenced her career with opinions, feelings, and habits, all derived from her former association with the Church of England. To the Common and Canon Law of England, we must therefore look, if we would fully understand the origin of much of the law of our own Church."--Ibidem.
After explaining the law of advowsons in England, and "the right of presentation to a church or ecclesiastical benefice" thereunder by the patron, (2 Blackstone, 21,) and the "induction" that necessarily follows provided only that the Clerk or Minister presented is "canonically qualified," Dr. Hawks says, that "this Canon made therefore an effort to supply some of the forms necessary to an induction; in lieu of presentation by a patron, it made the Church-Wardens and Vestry a quasi patron, and substituted their notice of the election of the Minister, in place of presentation; while the Bishop or Standing Committee were required to be satisfied, that the person elected was a qualified Minister of this Church."--Constitution and Canons, p. 269.Having now seen that, in enacting the Canon under discussion, the General Convention "made the Church-Wardens and Vestry a quasi patron, and substituted their notice of the election of the Minister, in place of presentation by a patron," under the law of advowsons in the Mother Country, it now becomes important, in order to a more perfect understanding of the Canon and of the intention of the law-makers, to inquire somewhat further into the law of advowsons and into what was involved, at the time of the enactment of our Canon, in the sequel of a presentation.
DR. BURN, in his great work on Ecclesiastical Law, thus discourses in respect to the right of advowson:
"Apparently coeval with the institution of parochial divisions was the jus patronatus of the canonists, or the right of advowson of the Common law, which forms the subject of this chapter. For, in order to promote the building and endowment of parochial churches, those who had contributed to their erection, either by a grant of land, by building, or by endowing, were entitled to present a clerk of their own choice to the Bishop, who was invested with the revenues accruing from such contribution. * * "The clerk so presented must have been a person capable of performing the functions of his office; but subject to this exception, his admission was imperative upon the Bishop."--1 Burn's Ecclesiastical Law, p. 5, b.
This practice is traceable back to the Council of Orange, held A. D. 441, beginning on November 8th.--Ibidem, and see Landon's Manual of Councils, 445. It will be noted that this roaches back into a period acknowledged to be within that of the "Primitive Church." JUSTINIAN, in his 123d Novell, pro-aulgated near the end of the fifth century, decreed 'that if any man should erect an oratory, and desire to present a clerk thereunto by himself, or his heirs, if they furnish a competency for his livelihood, and nominate to the Bishop such as are worthy, they may be ordained;" and the 57th Novell, c. 2, "empowers the Bishop to examine them and judge of their qualifications, and, where they are sufficient, obliges him to admit the clerk."--1 Burn, p. 5 b.
JUDGE HOFFMAN says that these decrees of Justinian, promulgated in the fifth century, "contain the very law of our Church, in substance, at this day"--Law Of the Church, p. 289.
SIR WM. BLACKSTONE, in his commentaries on the Laws of England, tells us that ''an advowson presentative is where the patron hath the right of presentation to the Bishop or Ordinary, and moreover to demand of him to institute the Clerk, if he finds him canonically qualified.--2 Blackstone, 22.
The 95th Canon of 1608 requires the Bishop "to inquire and inform himself of the sufficiency and qualifies of every Minister" presented to him for institution into a benefice, within twenty-eight days. If the clergyman presented is refused institution, or is unreasonably or illegally delayed, he may appeal to the Archbishop and obtain a duplex querela, directed to the Ordinary, containing a monition to institute within a certain day, or to show cause why he does not, etc. If the Bishop neither obeys, nor appears, he is pronounced contumacious, institution is decreed by the Archbishop, and the Minister is inducted.--2 Gibson's Codex, 823; Cripp's Law of the Church and Clergy, 548. "And if the Bishop doth admit the Clerk, and then doth refuse to institute him, the Clerk may have the same remedy against the Ordinary to enforce him to do his duty."--1 Burns' Ecclesiastical Law, 159.
The Minister, thus presented, may be refused by the Bishop only in case he "is not in Priest's orders, or is of immoral character, or is deficient in learning, or is heretical in belief."--Blunt's Book of Church Law (1882--revised by Phillemore), p. 284; Dale's Clergyman's Legal Hand Book 19; 1 Burns' Ecclesiastical Law, 157; Cripp's Laws of the Church and Clergy, 544-5. If he be not refused, by reason of either of these grounds, within the twenty-eight days indicated, he must be admitted to institution.--Blunt's Book of Church Law, pp. 236-7.
BISHOP STILLTNGFLEET, in his Ecclesiastical Cases, published A. D. 1698, says, that "in the time of Lud. Pius. A. D. 816, there was a solemn Assembly of the Estates of the Empire, where several ecclesiastical laws were passed, and among the rest, these two: That no Presbyters should be put in, or out of Churches, without the authority and consent of the Bishops; and that the Bishops should not refuse those who were presented if they were probabilis vitat et doctrinae, i. e. such as the Bishops could not object against either for life or learning."--Stillingfleet's Ecclesiastical Cases, pp. 238-4. See also pages 237-8.
From what precedes, it must be clearly manifest to every impartial mind, that, by the Law of the Church, sanctioned, and I had almost said sanctified, by nearly or quite fourteen hundred years of wisdom and experience, a Presbyter in good standing, presented to a church or ecclesiastical benefice, is entitled to all the rights and privileges of incumbency, including of course, the right to officiate, and that in the Mother Church, where institution and formal induction are necessary (which are not with us), the Bishop may be compelled to perform those offices.
Such was the Law of the Church when the General Convention Canon, under consideration, was adopted in 1789, and by which, as DR. HAWKS says, "the induction of a Minister seems to have been considered as
a matter of course, if, indeed, it were not meant expressly to require it by the Canon." At the very least, it is as clear as demonstration itself, that the General Convention intended to save all the rights and privileges of Ministers elected and called to churches or parishes, in as ample degree as they then existed under ecclesiastical law; nor is there the slightest indication in any legislation of the General Convention, at any time, that it was ever intended to permit the curtailment of such rights and privileges. On the contrary, the General Convention in 1789, by the canon referred to, (and which is still in force, almost word for word,) "made an effort," as DR. HAWKS' book on the Constitution and canons declares, "to supply some of the forms necessary to an induction; in lieu of presentation by a patron, it made the Church Wardens and Vestry a quasi patron, and substituted their notice of the election of the Minister, in place of presentation; while the Bishop or Standing Committee were required to be satisfied that the person elected was a qualified Minister of this Church."
It follows, from what has been said, that the Canon of your Diocese, (which super-adds the Bishop's "approval in writing" as a condition of a Minister's settlement in a Parish to which he is elected and called, and directs that he shall not be " permitted to "officiate" until such "approval" is given,) is in direct conflict with the Canons of the General Convention, and is therefore inoperative and void.
If the rule of your Canon were to prevail, an erratic and arbitrary Bishop might domineer over Priests and Parishes without let or hindrance, and interpose, if he should so feel inclined, most serious obstacles to the Church's progress, and to the saving of souls. As essential to his "approval" he might impose upon both Priest and Parish the most unreasonable and monstrous conditions.
These considerations, it is true, go merely to the reason of the Law as it stands; but, nevertheless, they serve to illustrate the intention of the law-makers, and the spirit of the law.
I remain, gentlemen, very respectfully,
Your obedient servant, etc.,S. CORNING JUDD.
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