58 Ill. 509 | Ill. | 1871
Lead Opinion
delivered the opinion of the Court:
This is a bill to enjoin plaintiffs in error, as an ecclesiastical court, from proceeding Avith the trial of the defendant, for alleged offenses and misconduct, as a presbyter of the diocese of Illinois, and rector of Christ church, in the city of Chicago.
The injunction was originally granted, without notice; and a motion Avas then made to dissolve it, which, upon the hearing, on bill, answer, replication and affidavits, was overruled. The case is before us by Avrit of error.
The bill alleges the issuing of a commission, by the bishop of the diocese, appointing three persons as presenters; the finding of the presentment; and a citation, gi\dng notice of the time and place of trial; that the accused, in person, and by counsel, appeared Avhen the court Avas organized, and preferred objections to the validity of all the papers, Avhich Avere overruled, and claimed his right of challenge of the persons Avho were selected to try the issue, Avhich was denied; that the commission, presentment and citation are void, and give no authority to the assessors; that the accused receives, from his parish, forty-five hundred dollars per annum, and enjoys a rectory, rent free, and has received numerous calls from other parishes, in other dioceses, at much higher salaries; that he has not been guilty of any offense for which he is liable to be tried, and yet the bishop is prejudiced against him ; has prejudged his case; and is determined to convict and deprive him of his position and its emoluments ; that the respondents were selected to condemn; they sympathise with the bishop, and, with him, belong to the high church party; and that complainant is attached to the1 low church party, in the protestant episcopal church; and he and the bishop are diametrically opposed in their views.
There are numerous affidavits filed, which we shall not consider, in the view we take of this case.
The charge of prejudice and combination is denied, by the answers; and the only proof to sustain it, worthy of any consideration, is in the affidavit of the accused.
A stipulation was entered into and made a part" of the record, that the printed constitution and canons of the diocese of Illinois, and of the general convention of the protestant episcopal church; the address of the bishop of Illinois, to the diocesan convention of 1863, and his answer and letter, in the case of the Rev. E. W. Hagar, should be evidence in the case.
Without asserting the power of this court, in cases of this character, yet, on account of the earnest and able and elaborate argument of counsel, we will notice the objection that the spiritual court had no authority to adjudicate upon the alleged offense.
The objections are these :
First. The bishop, by a recital in the commission that the information upon which he acted was “ credible information,” excludes the hypothesis that he exercised the power of appointment, in either of the three modes mentioned in see. 2 of canon 20; and that he could only proceed as directed therein.
Second. That the presentment was insufficient, in specification of time, place and circumstance.
Third. That eight presbyters did not appear, but only five, at the time and place of trial, when the attempted organization of the court took place; and that the accused was denied his right of challenge.
Fourth. That there was, in fact, no notice given of the trial.
Except one, these objections are extremely technical.
There is in evidence a commission, issued by the bishop, appointing three persons to investigate the charge, and make presentment. Presentment was found, containing three charges and divers specifications, as to offenses committed while officiating as rector of Christ church, in Chicago. A citation was signed by the bishop, fixing the time and place of trial, which, with a copy of the presentment, was duly served. The citation furnished the names of eight presbyters, from whom the accused might select five or three, as assessors ; and allowed twelve days in which to make the selection.
Was a commission necessary to confer jurisdiction ? Did the court or the accused have any right to call for it ? Concede that the bishop did not obtain his information from either of the sources specified in the canon, is the jurisdiction of the court thereby ousted ? The canon requires no commission to be issued. By the canon, the appointment need not be in writing. The bishop is compelled to appoint three persons, to examine the case, and presentment make. He performs this duty in such manner as he may choose.
If the court had jurisdiction of the subject matter and the person, it had power to proceed. The subject matter was contained in the presentment, not in the commission. The person had been summoned and was present. Therefore neither the source, nor the character, of the facts communicated to the bishop, except as contained in the presentment, were proper subjects of inquiry by the church court. The offense charged was the matter to be investigated—the fact to be tried. If the accused had violated the constitution of his church; his engagement to conform to its doctrines and worship; and his ordination vow, as alleged, such violations could not be palliated by the errors of the bishop. If the bishop disregarded the canons, and transcended the limits of his power, as diocesan, he is amenable therefor, and liable to trial, before his brother bishops. His transgression can not excuse the wrongful act of another; can not be pleaded in justification, or to the jurisdiction. The court, then, upon presentment made and due service, had power to take cognizance of, and decide the case.
This view is sustained by a careful examination of the canon. Section 1 of canon 20, in prescribing the duties of the ■ presenters, says, “ if there be, in their opinion, sufficient grounds for a presentment, they shall present such clergyman to the bishop; who shall thereupon cause a copy of said presentment, together with a citation to appear and answer thereto, to be served upon the accused, with all convenient speed.” Section 7, of the same canon, in reference to the duties of the presbyters who may compose the court, says, “ they shall declare, in a writing to be signed by them, or a majority of them, their verdict on the several charges and specifications contained in the presentment.” It will be seen that the accused is entitled to a copy of the presentment, not the commission, and to a citation. The court act alone on the presentment, and the evidence adduced.
Sustaining, as we do, the jurisdiction of the ecclesiastical court, we might fairly waive any answer to the suggested defects in the presentment, and rely upon an authority furnished by counsel: Walker v. Wainright, 16 Barb. S. C. R. 486. In that case the motion was made by the counsel for Walker, that Wainwright, the bishop, be required to show cause why the injunction previously granted, restraining the sentence, in accordance with the verdict of an ecclesiastical court, should not be made absolute. The learned judge said : “ The only cognizance which the court will take of the case, is to inquire whether there is a want of jurisdiction in the defendant, to do the act which is sought to be restrained. I can not consent to review the exercise of any discretion on his part, or inquire whether his judgment, or that of the subordinate ecclesiastical tribunal, can be justified by the truth of the case. I can not draw to myself the duty of revising their action, or of canvassing its manner or foundation, any further than to inquire whether, according to the law of the association to which both of the parties belong, they had authority to act at all. In other words, I can inquire only, whether the defendant has the power to act, and not whether he is acting rightly. * * * * The refusal of the defendant to issue a commission to take testimony, his refusal to grant a new trial, the alleged misconduct of one of the court, are all matters which relate to the mode of procedure, and not to the right to proceed; and I repeat, that it is the latter alone that I can take cognizance of.” The motion was denied, and the injunction dissolved.
If we had the right to determine the sufficiency of the presentment, we should hold, as this court has held in numerous decisions, in criminal cases, that it is sufficient, if so plainly drawn that the nature of the offense may be understood. "We should not test its correctness by the strict rules of criminal pleading.
The accused was informed by the presentment, that in his own church, in the city of Chicago, he had committed the alleged offenses. The language is explicit as to their character. The omissions and alterations are plainly set forth. The place is definitely fixed. Ho particular day is averred. Was this necessary ? The offenses charged are mostly omissions. The rule is, “ Where the offense consisted of an omission, it is not necessary to allege any time to it.” 2 Hawk. C. 25, S. 79. Even in criminal cases, it is not necessary to prove the time precisely, as laid. The particular day is not material in point of proof, and is merely matter of form. Philips Ev. Vol. 1, 214. . This court has decided, that the allegation of the precise time, even in criminal cases, is not essential, unless in a few cases. Gebhart v. Adams, 23 Ill. 399. The presentment avers, as to time, “ at divers times during the two years last past,” and “ at divers times during the six months last past.” It was insisted, in the argument, that, as no precise day is named, therefore the accused can not meet the charge, without summoning a large number of witnesses. He would not be aided by the averment of a particular day. If the presentment had charged the commission of the offense, on a certain day, in the month of June, A. D., 1867, the prosecution would not, by any rule of law, have been limited to the day named, but might have proved the offense—the omission— on any day between the day named and the date of the presentment. The statute of limitations would not apjdy, for the canon has not so provided. The highest judicature, in this church, has decided that there .is no such law governing church trials. Bishop Onderdonk was found guilty of immorality and impurity, committed seven years prior to his trial; and the bishops of Louisiana, Bhode Island, Delaware, and Arkansas, in their opinion, declared that there was no limitation to the inquiry by a church court, as to offenses, because none had been fixed and recognized by the canons.
It is inconceivable that the accused could have been surprised by any vagueness or uncertainty in the charges and specifications. It is a reasonable presumption, that a minister has knowledge of the constitution of his church, and of his acts as such minister, of a public character, and within a recent period; and particularly his conduct and omissions in the administration of the sacraments of his church. The bill contains a virtual admission of such knowledge. The gravamen, in the presentment, is the omission of the words “ regenerate ” and “ regeneration,” in the ministration of the sacrament of infant baptism. The bill has no positive negation of the omission, but merely avers, “ that your orator does not believe himself to have been guilty of offense and misconduct, rendering him liable to trial.” The fair construction of this averment is: “I am guilty of the omission; but this is no offense which renders me liable to trial.” In his affidavit, in support of the bill, the accused said he had informed the bishop, that “he had conscientious scruples in regard to the positive averment of the regeneration of the baptized infant, by virtue of the act of baptism only.” He further stated, “ but this affiant utterly denies, that the omission of the Avord ‘ regenerate/ from some part of the said office for infant baptism, Avould constitute any offense under the canons, etc.” The inference is irresistible, that he was informed of the nature and cause of the accusation against him.
The third objection raises the right of challenge, and it is insisted that this right inheres in every citizen; that the common laAV and common justice give it. This is true, in trials in all courts organized under the constitution and laws of the land. |This spiritual court was not thus created. It is the creature of the canons of the church, and by them must be governed, and by them be judged. Why jshould we force upon this church judicatory our system^ with out the asking and against its consent ?JJ
The canons must control. Section 3 of canon 20 authorizes the formation of an ecclesiastical tribunal, and directs that the bishop shall furnish a list of eight presbyters, to the accused, and he shall select not less than three nor more than five from this list, Avho shall constitute the court; but if he neglect or refuse to make a selection, the standing committee shall select for him. This is the mode adopted, and, by implication, excludes all other modes. Eight persons are presented, three or five might be rejected, without cause, and to this extent a peremptory challenge is alloAved.
The minister, in a legal point of view, is a voluntary member of the association to AArhieh he belongs. The position is not forced upon him, he seeks it. He accepts it, Avith all its burdens and consequences; Avith all the rules and laAVS, and canons then subsisting, or to be made by competent authority ; and can, at pleasure and with impunity, abandon it. If they were merciful and regardful of conscientious scruples, he knew it; if they were arbitrary, illiberal, and attempted to chain the thoughts and consciences, he knew it. They can not, in any event, endanger his life or liberty; impair any of his personal rights; deprive him of property acquired under the laws; or interfere with the free exercise and enjoyment of religious profession and worship, for these are protected by the constitution and laws. While a member of the association, however, and having a full share in all the benefits .resulting therefrom, he should adhere to its discipline; conform to its doctrines and mode of worship, and obey its laws and canons. If reason and conscience will not permit, the ^connection should be severed. “ The only remedy which the member of a voluntary association has, when he is dissatisfied with the proceedings of the body with which he is connected, to withdraw from it.” Forbes v. Eden, (infra.)
If we compel this spiritual court to observe the rule of law, as to challenge of jurors, it would be our duty to enforce the observance of all the rules of law, unless of impossible application. With the same propriety it might be urged, that twelve presbyters—the number of a jury—instead of three or five, should form the court. Why not go beyond the pale of the church, and abandon the presbyters, as wholly incompetent? The canon, in the designation of presbyters, as assessors, and the number, is no more emphatic than in providing the manner of selection. What law shall govern, as to the number of witnesses necessary .to establish an offense? Our law only requires one witness, with two exceptions; the scriptural rule requires two. The injunction of St. Paul is : “ Against an elder receive not an accusation, but before two or three witnesses.” The law, under the old dispensation, was, “ One witness shall not rise up against a man for any iniquity, or for any sin; at the mouth of two witnesses, or at the mouth of three witnesses, shall the matter be established.”
We have no right, and, therefore, will not exercise the power, to dictate ecclesiastical law. We do not aspire to become de facto heads of the church, and, by construction or otherwise, abrogate its laws and canons. We shall not inquire whether the alleged omission is any offense. This is a question of ecclesiastical cognizance. This is no forum for such” adjudication. The church should guard its own fold; enact and construe its own laws; enforce its own discipline; and thus will be maintained the boundary between the temporal and spiritual power.
As to the fourth objection, that the notice for trial was insufficient, we have only to say, this comes too late. The party was present, and made no pretense that he had not had time to prepare for trial. As an allegation in the bill, it is too frivolous to be considered.
But it is said, that the civil rights of the Rev. Mr. Cheney are involved in this controversy; that the office of a clergyman is one of public concern; that he has a vested right in it; that the right to preach is, in itself, property; and that, attached to the office in question, are salary and emoluments. Has the party, in this case, any vested right to the rectorship of Christ Church, and, as a necessary consequence, to the profits and perquisites ? Ho parish can form a part of the diocese of Illinois, unless with the consent of the bishop, and the formation of a constitution, as provided in canon eight, by which it “ accedes to, recognizes and adopts the constitution, canons, doctrines, discipline and worship of the protestant episcopal church.” The minister, having been previously ordained, and pledged conformity to the rules and doctrines of the. church, is installed as rector, according to canon ten, by the production of the proper certificate from the bishop. The vestry is required, by canon twelve, to obtain the amount stipulated for his support, by “ the gathering of offering in divine service, or by the procurement and collection of sub-^constituted a vested right, a right which could not be suspended. The salary depended upon the continued performance of the duties of rector. The contract must be construed and enforced, by reference to the canons, which form a part of If the minister was suspended or deposed, for any ecclesiastical offense, the payment would cease. The case of the Dutch Church of Albany v. Bradford, 8 Cowen, 457, confirms this view. An action was brought by the minister to recover a portion of his salary. He had been only suspended, and insisted that his salary continued until the dissolution of the connection. In the Court of Errors, on a reversal of the decision of the Supreme Court, it was held that he was not entitled to his salary, between the sentence of suspension and dissolution ; and that, as he did not and could not perform his ministerial duties, he could not recover his salary. The record, in the case at bar, discloses no contract which we can construe, except by reference to the canons.
It is also claimed, that there- is value in the right to pursue any lawful avocation. Of this we entertain no doubt. We have no doubt either of the absolute right of every citizen, under our constitution, to teach and preach the gospel, to whomsoever will listen. But in an organized church, with written or printed rules, and established doctrines and mode of worship, the right is qualified. The continuance, power and emoluments of the position, depend upon the will of the church. The right is contingent and restricted, and, as a thing of value, is very much lessened. The sentence of the church judicatory, in a proper case, deprives of the position, and salary and emoluments are gone.
In this unhappy controversy, is involved a graver question, and of deeper moment to all Christian men—indeed to all men who believe that Christianity, pure and simple, is the fairest system of morals, the firmest prop to our government, the chiefest reliance, in this life and the life to come. Shall we maintain the boundary between Church and State, and let each revolve in its respective sphere, the one undisturbed by the other ? All history warns, not to rouse the passion or wake up the fanaticism, which may grapple with the State, in a deathly struggle for supremacy.
Our constitution provides, that “ the free exercise and enjoyment of religious profession and worship, without discrimination, shall forever be guaranteed.” In ecclesiastical law, profession means the act of entering into a religious order. Religious worship consists in the performance of all the external acts, and the observance of all ordinances and ceremonies, which are engaged in with the sole and avowed object of honoring God. The constitution intended to guarantee, from all interference by the State, not only each man’s religious faith, but his membership in the church, and the rites and discipline which might be adopted. The only exception to uncontrolled liberty is, that acts of licentiousness shall not be excused, and practices inconsistent with the peace and safety .of the State, shall not be justified. Freedom of religious profession and worship can not be maintained, if the civil courts trench upon the domain of the church, construe its canons and rules, dictate its discipline, and regulate its trials. The larger portion of the Christian world has always recognized the truth of the declaration, “ A church without discipline must become, if not already, a church without religion.” It is as much a delusion to confer religious liberty without the right to make and enforce rules and canons, as to create government with no power to punish offenders. The constitution guarantee^ the “free exercise and enjoyment.” This implies, not alone the practice, but the “possession with satisfaction ”—not alone the exercise, but the exercise coupled with enjoyment. This “free exercise and enjoyment” must be, as each man, and each voluntary association of men, may determine. The civil power may contribute to the protection, but can not interfere to destroy or fritter away.
The civil courts will interfere with churches or religious associations, when rights of property or civil rights are involved. But they will not revise the decisions of such associations, upon ecclesiastical matters, merely to ascertain their jurisdiction. As we understand the position of the defendant in error, his civil rights are not so endangered as to require our interposition. It may not be improper to collate some of the authorities, which bear upon this question. The controlling principle is declared in the 24th statute of Henry VIII, “ Causes spiritual must be judged by judges of the spirituality, and causes temporal by temporal judges.” In Baptist Church v. Withenell, 3 Paige, 296, the Chancellor said: “ Over the church as such, the legal tribunals do not profess to have any jurisdiction whatever, except to protect the civil rights of others, and preserve the public peace. All questions relating to the faith and practice of the church, and its members, belong to the church judicatories, to which they have voluntarily subjected themselves.” In Sawyer v. Cipperley, 7 Paige, 281, it is said, “ the church, as to its doctrines, govern^ ment and worship, is to be governed by its peculiar rules.” In the case of Gable v. Miller, 10 Paige, 627, the learned Chancellor doubted the soundness of his former decisions, but his decree was reversed, by the highest court in the State, by a vote of fourteen to three. Miller v. Gable, 2 Denio, 492.
The same principle is enunciated in Robertson v. Bullions, 9 Barb., 64, and Diefendorf v. Ref. Cal. Church, 20 Johns. 12.
In the case of the German Ref. Church v. Seibert, 3 Barr, 291, it is said: “ The decisions of ecclesiastical courts are final, as they are the best judges of what constitutes an o fíense against the word of God, and the discipline of the church.” The court of appeals of Kentucky, in Shannon v. Frost, 3 Ben. Monroe, 258, says: “ This court, having no ecclesiastical jurisdiction, can not revise ordinary acts of church discipline or excision.” In a recent case, of Forbes v. Eden, Cases in House of Lords, 3 Series, Vol. 5, 36, decided in 1867, the Itev. Mr. Forbes alleged, that he could not conscientiously obey certain canons, and that, as a consequence, he might be degraded from his office of minister, and be deprived of temporal advantages, the Lord Chancellor said: “Appellant does not allege any actual damage, but founds his action upon a possibility of damage hereafter,” and that “it was a mere abstract question, involving religious dogmas, and resulting in no civil consequences, which would justify the interposition of a civil court.” Lord Cbanwouth said: “ There is no authority in the courts to take cognizance of the rules of a voluntary society, * * * save only so far as it may be necessary for the due disposal and administration of property.” Lord Colony said: “A court of law will not interfere with the rules of a voluntary association, unless it is necessary to do so to protect some civil right.”
In Gartin v. Penick, in the Court of Appeals of Kentucky, in 1869, Judge Robebtson, who delivered the opinion of the court, said: “ Christianity, though an essential element of conservatism, and a great moral power in the State, should only work by love, and inscribe the laws of liberty and light on the heart; and the civil government has no just or lawful power over the conscience, or faith or form of worship, or church creeds or discipline, as long as their fruits neither unhinge civil supremacy, demoralize society, or disturb its peace or security.” In reference to church members he said: “They joined the church, with a knowledge of its defined powers, and as the civil power can not interfere in matters of conscience, faith or discipline, they must submit to rebuke or excommunication, however unjust, by their adopted spiritual rulers.”
In the only case in this court, in which this question has been adverted to, the court says: “ While we will decide nothing affecting the ecclesiastical rights of a church, -which we are not competent to do, its civil rights to property are subjects for our examination, to be determined in conformity to the laws of the land, and the principles of equity.” Ferraria v. Vasconcellos, 31 Ill. 25.
There are some authorities in favor of interference, but the cases collated declare the law, as we think it ought to be. We have been referred to numerous cases in Massachusetts.' The constitution of that State, from 1780 to 1833, made it the duty of the legislature to “ require the several towns, parishes, precincts, and other bodies politic, or religious societies, to make suitable provision, at their own expense, for the institution of the public worship of God, and for the support and maintenance of public protestant teachers 'of piety, religion and morality, in all cases where such provision shall not be made voluntarily.” Const. Mass. Part 1, Art. 3. Laws were passed for the purpose contemplated, and an ecclesiastical law has thus grown up there. These decisions are not applicable in this State, as legislative and judicial interference in such matters is expressly forbidden by the constitution, which all are bound to obey.
This case may, then, be briefly summed up. A rector in the church is charged with nonconformity to its doctrines; intentional omissions in the ministration of its ordinances; and the attempt is made to organize a court, composed of his brother clergymen, for his trial. He appeals to the civil court, and alleges as the chief reason for interposition, the want of authority in the spiritual court to try him, and a misconstruction of the canons. The same point was made to that court, and its power denied. It was urged, with the same earnestness, and enforced with the same arguments there as here. That court overruled the objection, and decided that it had jurisdiction. Five intelligent clergymen of the church, presumed to be deeply versed in biblical and canonical lore, were more conrpetent than this court to decide the peculiar questions raised. Why should we review that, and not every other decision, which involves the interpretation of the canons ? It is conceded that when jurisdiction attaches, the judgment of the church court is conclusive, as to purely ecclesiastical offenses. It should be equally conclusive upon doubtful and technical questions, involving a criticism of the canons, even though they might comprise jurisdictional facts.
It requires no more intellect, information or honesty, to decide what is an ecclesiastical offense, than to determine the authority of the court, according to the canons. The distinction is without a difference.
Civil courts have duties and responsibilities devolved upon them, and a well defined jurisdiction to maintain. The church has more solemn duties, more weighty responsibilities, and an authority granted by the infinite Author of all things. We shall not enter in, and “ light up her temple from unhallowed fire.” The. ministers selected to sit in judgment on the acts of a brother, ought to be impartial and competent, prompted, as they doubtless are, by the teachings of Divine revelation, and the kindly influences of Christian charity, which “ suffereth long and is kind; beareth all things, believeth all things, hopeth all things, endureth all things.”
Having given this case a most careful consideration, our deliberate judgment is, that the ecclesiastical court ought not to be restrained by the mandate of this court.
It is ordered that the decree of the superior court be reversed, the injunction dissolved, and the bill dismissed.
Decree reversed.
Concurrence Opinion
We concur in the decision of the case at bar, announced in the foregoing opinion, and we also concur in the opinion itself, except as to one principle therein. We understand the opinion as implying, that in the administration of ecclesiastical discipline, and where there is no other right of property involved than the loss of the clerical office or salary, as an incident to such discipline, a spiritual court is the exclusive judge of its own jurisdiction, under the laws or canons of the religious association to which it belongs, and its decision of that question is binding upon secular courts. This is a principle of so grave a character, that, believing it to be erroneous, we are constrained to express our dissent upon the record.
We concede, that when a spiritual court has once been organized, in conformity with the rules of the denomination of which it forms a part, and when it has jurisdiction of the parties and the subject matter, its subsequent action in the administration of spiritual discipline will not be revised by the secular courts. The simple reason is, that the association is purely voluntary, and when a person joins it he consents, that for all spiritual offences, he will be tried by a tribunal organized in conformity with the laws of the society. But he has not consented that he will be tried by one not so organized, and when a clergyman is in danger of being degraded from his office, and losing his salary and means of livelihood by the action of a spiritual court, unlawfully constituted, we are very clearly of opinion he may come to the secular courts for protection. It would be the duty of such courts to examine the question of jurisdiction, without regard to the decision of the spiritual court itself, and if they find such tribunal has been organized in defiance of the laws of the association, and is exercising a merely usurped and arbitrary power, they should furnish such protection as the laws of the land will give. We consider this position clearly sustainable, upon principle and authority.