CHAP. 2. The Church a interests, nor can a diocese, in its action, properly pass beyond the limits of its strictly local jurisdiction, and trench upon the constitutional prerogatives of the National Church. In the original draft of the Constitution adopted by the General Convention of 1786, it was provided by Article 3d as follows: "In the said Church, in every state represented "in this convention, there shall be a convention consisting of the clergy and lay deputies of the congre"gations." This provision was very properly omitted in the Constitution as adopted in 1789, as the conventions of the dioceses were already in existence, independently of this Constitution which was framed by deputies elected by them, and the existence of these diocesan conventions is expressly recognized in the 2d, 4th, 6th, and 9th Articles of the Constitution. The true principle of federal government is thus stated by Freeman in his "History of Federal Government," page 3: "Two requisites seem necessary "to constitute a federal government, in its most per"fect form. On the one hand, each of the members "of the union must be wholly independent in those 66 matters which concern each member only. On the "other hand, all must be subject to a common power "in those matters which concern the whole body of "members collectively." No confederation of dioceses, in which all are not represented, would be admissible under the Constitution, which is a union of all the dioceses for all pur poses that are not strictly local, and therefore within diocesan control. The line of demarcation between the jurisdiction of the Church, as thus organized, and that of the respective dioceses, may not in all cases be clear, but there is undoubtedly such a line, and it is sufficiently distinct for practical purposes, as is seen from the fact, that no serious difficulty has ever arisen between the General Convention and any diocese in the matter of jurisdiction, although it has always been taken for granted that the Constitution contemplates a federal union of, and not a central government over, dioceses. Whatever differences of opinion may, at any time, have existed, they have been found gradually to yield to the fair, manly, Christian sentiment and treatment of the Church at large. Her dioceses and members are loyal to her, for the reason that their judgments are always appealed to, and a fair consideration is given to every honest suggestion; and her conclusions therefore being reached in good faith, as to matters which she believes to come fairly within her jurisdiction, are usually, sooner or later, cheerfully acquiesced in. It is important, however, in order to maintain this kindly relation to the dioceses, that the Church, in all her departments, shall recognize the fact, that the Protestant Episcopal Church in the United States acknowledges no foreign law, canonical or otherwise, as binding upon her, in her government and administration, until she has first adopted it, and thus made it her own. Some confusion in discussions on Church law has grown out of the fact that our creeds and CHAP. 2. CHAP. 2. standards recognize "the Holy Catholic Church," The question as to the source and scope of the power of the General Convention to enact canons has been discussed by Judge Hoffman, and especially the legal effect of the canons first enacted by it on the 7th day of August, 1789, being the day before the first signing of the Constitution by the members of the convention. As to the latter point, it is sufficient to say, that it was evidently from a mere oversight of the convention, that these canons were acted upon the day before the Constitution, which had been already agreed upon, was technically adopted by the signatures of the members; and that, at the next General Convention, to wit, in 1792, they were, as stated by Judge Hoffman, re-enacted, in order to remove all doubt as to their validity. It does not seem necessary, therefore, to determine what would have been the legal effect of these canons without such ratification. As to the other point, to wit, the source and scope of the power of the General Convention to enact canons, Judge Hoffman says: CHAP. 2. "I submit (with much deference upon a point "almost untouched) that upon every question of See Appen"jurisdiction, the inquiry is not, whether the power dix B. "has been conferred, but whether it has been denied or restricted." General Conven enact can ons. If Judge Hoffman is right in his conclusions, then Power of the dioceses, under whose auspices, and by whose deputies the Constitution was framed, instead of con- tion to ferring by that instrument upon the General Convention a limited authority to enact canons, lost thereby their own independence and became subordinate to the General Convention as to all powers, legislative or otherwise, that were not carefully reserved to them in that instrument, and shall not be taken from them by amendment of the same. Surely this could not have been the understanding of the framers of the Constitution, or the meaning of the resolution of June 24, 1786, under the terms of which they acted. It is submitted with confidence, that the proceedings of the Convention of 1786, which substantially framed the Constitution, in connection with those of the Convention of 1789, which finally adopted it, show conclusively, that the legal effect of that instrument must be, as its terms indicate, to confer certain limited powers essential to a National Church, upon the new organization created by it, and that the General Convention is bound to confine its action within the prescribed limits, and to those matters which con CHAP. 2. cern the whole body of members of the union collectively, leaving the respective dioceses independent as to all matters which concern dioceses only. Judge Hoffman refers to certain canons of the General Convention as indicating the assertion by it of an unlimited authority in legislation, except as otherwise expressly provided in the Constitution, and in reference to this point says: "It is impossible to find in that instrument (the Constitution), either in express language, or by any warrantable inference, any provisions on which to rest the validity of the greater part of the canons.' He says further: "For example, the present 37th canon defines the offenses for which a minister may be tried and punished. By other canons certain offenses or neglects are punishable or censurable. There is not a sentence in the Constitution upon which these provisions can be placed as their authority and warrant." The canon of the General Convention of 1789, directing that there shall be a standing committee in every diocese, with the subsequent canons upon the same subject, and the canon of 1804, in reference to the induction of ministers, are all included by Judge Hoffman in the same category, as not authorized expressly or impliedly by the Constitution, but as resting upon an undefined mass of powers which the General Convention possesses over the affairs of the dioceses independently of the provisions of the Constitution, because not "denied or restricted" by it. The canons thus referred to would seem to come fairly within the scope of the General Convention, as the legislative body that is responsible for uni |
