The Clergyman´s Hand-book of Law

Details

• Main Title: The Clergyman’s Hand-book of Law
• Second Title: The Law of Church and Grave
• Author: Charles M. Scanlan, LL.B. (Author of “Scanlan’s Rules of Order,” “Law of Fraternities,” “Law of Hotels,” etc.)
• Publisher: Benziger Brothers (New York, Cincinnati, Chicago)
• Date of Publishing: 1909

Contents

• Law, Religion
• Religions
• Authority, Right
• Philosophical Foundations
• Rome, Natural Justice
• Canon Law
• Early Christians
• Persecutions, Defenses
• Constantine, Blending the Law
• “Benefit of the Clergy,” Ecclesiastical Court
• Estates, Guardianship
• Middle Ages, Common Law
• Gratian, Reformation
• Bologna
• Church and State
• England, Roman Law
• America, English Law, Civil Law
• Religious Tolerance, Established Church
• Ecclesiastical Tribunals
• Church, Religious Society
• Doctrine, Constitution
• By-Laws
• Church, Religious Society
• Church, Christians, Religion
• Doctrine, Standard
• Ecclesiastical Corporations, Religious, Quasi-public Corporations
• Sect, Sectarianism
• Sectarian
• Worship, Services, Mass
• Parish
• Parishioner
• Clergyman
• Minister
• Rector or Pastor
• Religion
• Religious Tests
• Test Oath, Attainder
• Establishment of Religion, Free Exercise
• Sovereignty, States, Bigamy
• Church of the Latter-Day Saints
• Crime, Religion
• Donation, Hostile, Religion
• Christian Scientist
• Protestant
• Hospitals, Sisters, Appropriation
• Constitution, Rights
• Aid, Contracts
• Protestant Teacher, Tax
• Office, God
• Religious Liberty, Bible, Religious Garb, Wages
• Wisconsin, Mississippi, New York
• Real Estate, Parish, Diocese, Taxation
• Riot, Damages
• Use, Change, Parsonage, Discipline, Doctrine, Curate
• Partners, Debt, Liability
• Pastor, Salary
• Building, Materials
• Management, Disability
• Shakers, Sect, Catholic Church, Trustees, Funds
• Contract, Binding
• Court, Trust
• Societies, Membership, Forfeiture
• Special Law, General Laws
• Officers, Discipline, Property
• Incorporation, Evidence
• Congregation, Members
• Temporal Affairs, Management
• Corporators, Change
• Constitution, Subsequent Laws
• Name, Change
• Church, Regular
• Notice, Legal
• Control, Secede, Vested Rights
• Consolidation, Control, Dissolution
• Debt, Limited
• Conditions, Effect
• Suits, Parties
• Incorporation, Sufficient
• Dissolution, Fund
• Reorganization
• Meetings, Majority, Quorum
• Protestant, Ministers, Bishop
• Roman Catholic Church, Pope, Bishops, Delegated
• Bishop, Discipline, Clergy
• Local, Secular Matters
• Unincorporated, Authority
• Tribunal, Action, Appeal
• Spiritual Authority, Excommunication
• Constitution, Limited, Decisions
• Priesthood, Discipline
• Congregation, Insubordinate, Discipline
• Pastor, Parish, Relation
• Clergymen, Citizens
• Doctrine and Discipline, Authority
• Sect, Suit, Property
• Priest, Salary
• Curate, Induction, Rector
• Controversy, Tribunal, Decision
• Priest, Dwelling, Servant
• Injunction, Bishop, Priest, Trial
• Confession, Privacy, Authority
• Debts, Permission, Presumed
• Official Acts, Subscriptions
• Exemptions, Clergy
• Minister, Contributions, Deposed
• Fees, Usages, Excess
• Salary, Fees
• Clergyman, Salary
• Curate, Services
• Minister, Dismissal, Money Advanced
• Business, Religious Membership
• Regular, Doctrines, Support
• Factions, Authority
• Faith, Burial
• Rules, Membership
• Minor
• Officers, Non-Members
• Debts, Unincorporated Parish
• Execution, Property
• Incorporated, Subscriptions
• Expelled, Merits
• Lay Members, Appointed
• Mother Church, Control
• Seceders, Funds
• Society, Foreign Language, Independent
• Subordinate, Incorporated
• “Church,” Seceders, Debt
• Bible, Constitution, Withdrawal
• Majority, Obligation
• Division, Funds
• Methodist, Slaveholding, Non-Slaveholding, Quarrel, Schism, Secession
• Definitions, Minor
• Major Excommunication
• Vote, Sentence
• Trustees, Disqualified
• Devise, Void
• Fraternity, Excommunicated, Bequest
• Action, Expulsion
• Forfeiture of Membership
• Insubordination, Expulsion, Hearing
• Injunction, Mandamus, Sepulture
• Expulsion, Illegal
• Freedom, Faith, Doctrine
• Time, Place, Void
• Voting, Communicants, Attendance
• Voters, Poll List
• Notice, Quorum, Majority, Strangers
• Challenge, Ground
• By-Laws, Usage
• Ballot, Hand Vote
• Hold Over, Successors
• Majority, Votes Cast
• By-Law, Tickets
• Charter, By-Laws
• Unincorporated Church, Incorporated
• Trustees, Control
• Membership, Office
• Certificate of Election
• Term, Successors, Contest
• By-Laws, Preside
• Note, Overdraft, Interest
• Board, Control
• Treasurer, Accepting a Draft
• Note, Trustees
• Money, Powers
• De Facto Officers
• Trustees, Thanks, Charge
• Discretion, Excommunication
• Key, Possession, Right
• Church, Bishop, Debts, Salary of a Priest
• Note, Building Committee
• Fraud, Trust
• Superioress, Money
• Loan, Priest
• Warden, Wages, Sexton
• Sewing Circle, Money
• Business, Notice, Meeting
• Acts, Void, Lawful, Clerk
• Special Meeting, Notice
• Meeting, Consent
• Notice, Principal Service, Custom
• Adjournment
• Proof of the Notice
• Presiding Officer
• Voters, Rules
• Quorum, Majority
• Votes, Challenge, Inspectors, Casting Vote
• Written Notice, Prayer Meeting
• Expulsion, Damages
• Evidence, Entries, Minutes
• Uniformity
• Marriage, Death, Baptism, Birth, Church Records
• Certified Copies
• Rule of Admissibility
• Proper Record
• Name, Record
• Jurisdiction, Privileges
• Trial, Property, Priest
• Doubt, Legal Rights
• Bishop, Priest, Redress
• Trial, Counsel
• Removal, Suspension, Trial
• Charges, Fair Trial, Hearsay Evidence
• Trial, Testimony, Slander
• Remedies, Secular Courts
• Notice, Waiver
• Appeal, Decision, Limitation
• Procedure, Judge, Juror, Witness
• Catholic Discipline
• Decision, Ecclesiastical Matter
• Right of Property, Civil Rights
• Creed, Factions, Property, Management
• Trust, Court of Equity
• Injunction, Closing Church, Paying Money, Disturbances
• Suits, Parties
• Complaint
• Church Tribunal, Courts
• Unincorporated Congregation, Actions, Interest
• Blasphemy, Sabbath, Lord’s Prayer, Bible
• Judicial Notice
• Competent Witness
• Confessions, Secret Societies
• Privilege, Answer
• Admissions, False Statements
• Anonymous Letter, Clergyman
• Voire Dire
• England, Confession
• United States, Rules
• Presumptions, Usage
• Funeral Expenses
• Business, Religious Service
• Incorporated Body
• Mortgage, Deficiency Judgment
• Building Contracts
• Individual Promise, Subscriptions, Signature
• Special Purpose, Suit
• Promise, Consideration
• Sold, Rented
• Incorporeal Hereditament
• Catholic Church, Pew Rights
• Land, Use, Rent Pews
• Trustees, Sale in Perpetuity
• Pew, Right to Occupy, Conditions
• Tax, Assessment
• Pewholders’ Rights
• Rebuilding, Remodeling
• Selling Pew on Execution
• Members, Pew
• Free Church, Seats, Lease
• Executors, Pew-Rent
• Voting, Pew-Rent, Arrears
• Unincorporated, Trustee
• Charter, By-Laws
• Suits, Corporation, Members
• Deed, Court, Title
• Subscription, Lots
• Misnomer, Identity
• Adverse Possession, Color of Title
• Sale, Restrictions
• Deed
• Error
• Mortgage, Bishop, Debts
• Deed, Trust, Fee
• Debts, Creditors
• Mortgage or Sale, Notice, Consent
• Title, Taxes, Judicial Notice
• Title, Diocese, Rule
• Priest, Deed, Funds
• Monks, Missions, Title
• Texan Revolution, Land
• Priest, Agent, Deed
• Devise, Uncertainty
• Donor, Ambiguous Provision
• Trust, Evidence
• Money, Control
• Church, Building, Removing
• Church, Use, Division
• Spanish Territory
• Trust, Purposes, Doctrines
• Control, Revenues
• Leave to Purchase, Title, Canons of the Church
• Cemetery, Authority
• Real Estate, Purpose
• Limitation, Lands
• Conditions, Bequest, Deed, Time
• Will, Forfeiture
• Condition, Quit-Claim
• Bishop, Trust, Successors
• Trustees, Vacancy
• Church, Majority, Change
• Title, Harmony, Division
• Perversion, Misuse, Suit
• Rights, Contracts, Torts, Crimes
• Cemetery, Assessments
• Burned, Revert, Vested
• Abandoned, Revert
• Uses and Trusts
• Trust Funds, Account
• Fund, Diverted, Split
• Church, Personalty
• Lease, Purposes
• Salary, Lien, Equity
• Bankruptcy, Creditors
• Jurisdiction, Process
• States, Property, Restrictions
• Land, Limitation
• Corporations, Bequests
• Collateral Attack
• Worship, Discipline, Innovations
• Doctrines, Temporal Affairs
• Contributions, Presbyterians, Methodists
• True Religion, Courts
• Heresy, Injunction
• Bequest, Sects, Condition
• Sexton, Undertaker, Authorities
• Statutes, Wills
• Masses, Alabama
• Name, Bequest, Corporation
• Clergyman, Undue Influence
• Contest, Secession
• Bequests, Membership
• Conditions, Religious Tenets
• Name, Uncertainty
• Future Uses, Uncertainty
• Education, Priesthood
• Charitable Trust, Cy-Pres
• Error, Ambiguity
• Dissolution, Resulting Trust
• Charity, Institutions
• Purposes, Exempt
• Lot Isolated, Not Exempt
• Bishop’s Residence, Hospital
• Parsonage, Rented
• Masonic Order, Charity, Elks
• Supporting Church, Mississippi
• Appropriations, Contracts, Rent
• Poor, Institutions, Negligence
• Surgeon, Gratuitous Services
• Charitable Institution
• Charter, Real Estate
• Mortmain, Title, Trust
• Public Institutions, Support
• Nuns, Vows, Property
• Parent, Education, State, Parochial Schools
• Orphan Asylums, School Moneys
• Contract, Direct Payment, Lease
• Teacher, Lord’s Prayer, Exercise
• Ohio, Directors, Bible
• Public School, Bible, Prayer
• Text-Books, State
• Bible, Conscience, Constitution
• Schoolhouse, Sunday-School Purposes
• Child, Immoral Character
• Parents, Studies, Teacher
• Chastisement, Cruel
• Schoolmaster, Authority
• Force, Assistance
• White, Unmarried
• Facilities, the Constitution
• Residents, Public Schools
• Board, Majority
• Custody, Maternal Relatives, Father
• Mother, Illegitimate, Father
• Legitimatized
• Punishment, Instrument, Murder
• Guardian, Religion, Courts
• Convent, Consent
• Adoption, Rights, Duties
• Infancy, Manumission, Marriage
• Custody, Father
• Indians, Citizens, Wards
• Schools, Cemeteries, Churches
• Inspectors, Duties
• President, Trades
• Commissioner, School, Rations, Bible, Sectarian
• Reformatories, Object, Liberty
• Confidential, Tribunal, Malice
• Member, Officer, Councils
• Official Communication, Privileged
• Priest, Pastoral Duties
• Church Record, Excommunication
• Will, Libel, Action
• Language, Insane, Good Faith
• Rector, Bigamy, Tobacco, Liquor
• Newspapers, Criticisms, Priest
• Clergyman, Discipline, Tribunals, Testimony, Argument
• Physical Discipline, Imprisonment, Courts
• Sermon, False Statement, Crime
• Charges, Robbed, Hypocrite
• Investigation, Probable Cause
• Sacraments
• Obituary, Tolling Bell
• Newspaper, Profane Swearer
• Business or Property, Special Damages
• Justification, Repeating
• Sins, Crimes, Discipline
• Profane Language, Smoking, Disturbance
• Sunday-School, Church
• Private School
• Disturbing a Religious Meeting
• Common Law, Offense, Statutory Law
• Services, Violation, Time
• Force, Priest, Preserve Order
• Interrupt, Liquors, Traffic
• Theory, Blasphemy, Crime
• Religion, God, Ridicule, Virgin
• Profanity, Proof, Excuse
• Sunday, Business, Fishing
• Charity, Necessity, Benefit, Pleasure
• Contracts, Marriage, Notice
• Funeral, Physician, Subscriptions
• Jews, Seventh-Day Observers
• Societies, Secular Work
• Sunday, Begins, Ends
• Religious Liberty, Law
• Necessaries, Doctor
• Christian Healer, Consent
• Politics
• Mail, Obscene Language
• “Fair,” Chances, Gambling
• Statutes, Land
• United States, Jurisdiction
• Tombstones, Soldiers
• Indigent Soldiers, Tombstones
• State Authority
• Maryland, Two Acres
• Consent, Application
• Charter, Ground, Members
• Police Power, Trespass, Burial
• Dwelling, Limits
• Well, Pollution
• Exempt, Execution, Mortgage
• Public, Regulation
• Nuisance, Public Health, Disease
• Devise, Easement, Rules
• Conditions
• Inherits, Right
• Certificate
• Freemason, Title, Right
• Lots, Fee
• Deed, Privilege, Heirs and Assigns
• Access, Purposes
• Monuments, Inscriptions, Drunkenness, Non-Baptized, Strangers
• Use, Forfeited
• By-Laws, Member, Burial
• Adverse Possession
• Improvements
• Trespass, Injunction
• Roads, Alleys
• Abandoned, Bodies
• Two-Family Lot, Control
• Burying Dogs, Removal
• Stranger, Protest, Kin
• Association, Bishop, Stipulation, Certificate, License, Revocable
• Rules, Diocese
• Negroes, Indians
• Will, Body, Custody
• Non-Residence, Burial
• State, Vacate, Equity, Rule
• Consent, Bishop, Removal
• Court, Remove, Consent
• Crime, Fraud, Exhume, Autopsy
• Tort, Corpse
• Custodian, Burial, Mutilation
• Property in a Corpse, Mummy, Executors
• Rights, Duties, Body, Will
• Monument, Fence
• Tombstone, Mother-in-Law
• Trees, Authority
• Charitable, Institution, Negligence
• Equity, Repair, Injuries
• Societies, Law
• Society, Bishop
• Priest, Doorkeeper, Policemen, Arrest
• Saloon, Church, License
• Y M C A
• Students, Vote, Residence
• “My Wife, Anna Jones,” Divorce, Insurance
• Bells, Sick, Injunction
• Marriage, Impediments, Recording
• Charivari, Wedding Pranks
• Infallibility of Courts
• Money Stolen, Bailed or Loaned, Insolvency, Gifts

Preface

The three learned professions, medicine, law, and theology, overlap; and a man who does not know something of the other two can not be prominent in his own. Laws relating to Church matters are scattered through such a vast array of law books that it would be a burden for a clergyman to purchase them, and without special training he would not know where to look for the law. Therefore a law compendium covering those subjects relating to Church matters must be of great value to a clergyman.

There is another view of this subject. When she was mistress of the world the laws of the Roman Empire were for the Roman citizens, particularly the patricians; the canon law was the law of the Christian people of conquered countries and the Christian plebeians of Rome. In the United States we have the same common law for the President and the hod-carrier, for the multimillionaire [pg vi] and the penniless orphan, for the clergy and the laity. Consequently, in this practical age a knowledge of the law of the country with which the clergy come constantly in contact is expedient, if not necessary.

The poet says:
“What constitutes a state?…
Men, who their duties know,
But know their rights, and knowing, dare maintain.”

To insure harmony and good order, every Church should obey the laws of the country; but if any law should impose upon the rights of the Church in any way, the ruling authorities, the cardinal and bishops, if the wrong is national, should unite in a petition to the United States Congress, clearly stating the grievance and asking for its redress.1 If the grievance should be within a State, the bishop or bishops of the State should present the matter to the Legislature of the State. If the President or the Governor has authority to remedy the matter, go direct to him. Such was the practice of the wisest of the Popes.2 The author never knew of an instance [pg vii] in which a clergyman having a real grievance failed in obtaining a full and fair hearing from the powers that be, from the President downward. This method seems to be more in harmony with the relations of Church and State in a free government, and more intelligent than to have a convention of working men, who have little time to make a study of Church matters, pass resolutions, the passing of which generally ends the action of a convention.

In the chapters that follow, the author has refrained from giving a great multitude of authorities, but has endeavored to give such as are sufficient to sustain the text. For example, under the first section, and many others, a list of citations covering several pages might be given. That would add to the expense of the volume and would not be within its compass. The book will better fulfil its purpose by clear, brief statements of the rules of law, and if a reader desires to investigate further, the citations given will guide his way.

Charles M. Scanlan.

Milwaukee, January 23, 1909.

Chapter I. Introduction

1. Law, Religion.—From the dawn of the science of law it has been influenced by religion or antagonism to religion. This is very evident in the ancient laws of Babylonia, Egypt, Phenicia, Israel, India, and Ireland. It would be impossible to make a study of the law of any of said countries without gaining a knowledge of its religious system, whether pagan or otherwise.(The Science of Jurisprudence, Taylor, p. 506; Historical Jurisprudence, Lee, p. 328).

2. Religions.—Ancient nations might be classified into pagan and those that worshiped the universal God. However, some of the nations at one time were pagan and at other times had a fair conception of the supernatural. Also, in Egypt, the class of higher culture and education believed in the one omnipotent and omniscient Being, but the populace, who could be controlled more readily by flattering them in their notions and giving their childish conceptions full sway, worshiped idols. (Ancient Egypt, Rawlinson, vol. i, p. 323)

3. Authority, Right.—In those nations where the ruling authority had the proper conception of the Almighty, there was a strong, persistent growth of law upon the basis of natural right; while in the pagan nations laws were arbitrary and despotic. (Historical Jurisprudence, Lee, pp. 98, 164, 274; History of England, Lingard, vol. i, c. vii; The Science of Jurisprudence, Taylor, p. 506).

4. Philosophical Foundations.—The laws of Greece, down to the time of Plato, were thoroughly pagan. But, following the philosophical foundations laid by Plato and Aristotle, unintentionally and unwittingly the laws of Greece became imbued with the spirit of natural law.(Historical Jurisprudence, Lee, p. 257).

5. Rome, Natural Justice.—Prior to the introduction of Grecian law into Rome, the laws of that nation were pagan. Grecian law from its introduction to the time of Octavius was the civilizing element of the empire. Then it took a turn for the worse, the element of natural justice being reduced and the element of arbitrary rule becoming dominant. (Historical Jurisprudence, Lee, p. 271).

6. Canon Law.—We will now turn to the first period of canon law, which covers the early history of the Church up to the reign of Constantine the Great.(The Beginnings of Christianity, Shahan, 90).

Canon law is composed of the following elements:

1. Holy Scriptures;
2. Ecclesiastical tradition;
3. Decrees of Councils;
4. Bulls and rescripts of Popes;
5. The writings of the Fathers;
6. Civil law. (Elements of Ecclesiastical Law, Smith).

7. Early Christians.—Owing to the persecutions, the early Christians were, in a sense, isolated from the State; they held their property in common, and were governed in matters among themselves by the canon law. However, for want of freedom of discussion and publication, they were unable, even within a single nation of the empire, to promulgate a system of canon law. The foundation of canon law being laid, its development upon the manumission of the Church was rapid. (Historical Jurisprudence, Lee, p. 387; Justinian, Sandar, p. 21).

8. Persecutions, Defenses.—During the religious persecutions the Christians almost had law forced into them by surgical operations. The necessity for their making defenses in the Roman tribunals induced many of them to give Roman law a careful study. Also, the great number of Christians held for trial on all sorts of accusations made that branch of the law of the realm very lucrative for lawyers, and called into the field many Christians. Incidently, men studying for the priesthood made a study of Roman law with a view to avoiding its machinations and continuing their functions as clergymen without being caught in the net of persecution. (The Beginnings of Christianity, Shahan).

9. Constantine, Blending the Law.—When Emperor Constantine became a Christian (325 A.D.), there was a great change, and the members of the bar and judges were mostly Christians. It then became necessary for students of law to study the principles of divine right as taught in the Church, and while the books of the civil law were read by students for the priesthood, the Scriptures and the works of the Fathers were read by the students in law, thus blending the law of the two realms to some extent. (Universal Church History, Alzog).

10. “Benefit of the Clergy,” Ecclesiastical Court.—As the old Roman Empire decayed and its power waned, the new one, “The Holy Roman Empire,” gradually implanted itself in southwestern Europe. The humiliation that the divine law and the clergy suffered in being brought into the common courts gave rise to a system of courts within the Church for the purpose of enforcing her morals, doctrines, and discipline. Those courts were established in all Christian countries and had jurisdiction of all felonies excepting arson, treason, and a few other crimes that from time to time were put under the special jurisdiction of the state courts. Whenever a clergyman was arrested for a crime, he pleaded the “benefit of the clergy,” and his case was transferred from the state court to the ecclesiastical court. Also, when a clergyman was convicted in the state court of any crime for which the punishment was death, he could plead the “benefit of the clergy,” which was a protection against his execution. (Law Dictionary, Bouvier, “Benefit of Clergy,” “Canon Law”; Blackstone, vol. i, p. 460, vol. iii, p. 61).

11. Estates, Guardianship.—Besides the jurisdiction already referred to, the ecclesiastical court had jurisdiction over the settlement of estates and the guardianship of children, which varied in different countries and was very indefinite in some of them. (Blackstone, vol. i, p. 461).

12. Middle Ages, Common Law.—During the Middle Ages there was a constant effort on behalf of the ecclesiastical courts to extend their jurisdiction, and a counter-effort on behalf of the state courts to assume jurisdiction of cases under the ecclesiastical law. In England, from the conquest of William the Conqueror to the Reformation, the extension of the jurisdiction of the ecclesiastical courts brought the new element of English common law into the canon law; and much of the canon law, following the jurisdiction assumed by the state courts, became the common law of the kingdom of England. (Justinian, Sandar, p. 21; Cyc, vol. viii, p. 366, vol. xiv, p. 1228; Eq. Jurisprudence, Pomeroy, vol. i, p. 1; The Science of Jurisprudence, Taylor, p. 255 et seq; Blackstone, vol. i, pp. 18-20, 63; Kent, vol. i, p. 10; English Constitution, Creasy).

13. Gratian, Reformation.—The canon law reached its full development in the twelfth century, when Gratian, the Blackstone of his age, compiled the system, but it subsequently lost its influence when the Reformation prevailed. (Blackstone, vol. i, p. 82, vol. iv, c. 33; The Science of Jurisprudence, Taylor, p. 337; Conflict of Laws, Wharton, sec. 172.)

14. Bologna.—The great school of jurisprudence, both of canon and civil law, was located at Bologna, Italy, which reached its zenith in the thirteenth century. To it students flocked from Western Europe, and from it were obtained the professors of law in the universities of England and other countries. (The American Cyclopedia, “Bologna.”)

15. Church and State.—In most of the Christian countries, the Church and State were united, and many of the judges in the civil courts were clergymen. (The Science of Jurisprudence, Taylor, p. 238).

16. England, Roman Law.—On account of England’s being subject to Rome in its earliest age, and afterward because of its being conquered by France, the Roman law was pretty thoroughly intermixed with the native English law in the minor matters of the people, and governed in the more important ones. (Blackstone, vol. i, pp. 18-20, 79, vol. iv, c. 33)

17. America, English Law, Civil Law.—The portions of America that were settled by the English, which included the original thirteen colonies, were under the English law. In Virginia the Episcopal Church, which was then the church of England, was made the church of state. Canada and that portion of the United States formerly [pg 020] known as Louisiana were governed by the civil law of France. Wherever the French government had no authority or civil officers, the government was directly under the missionaries of the Church. (Commentaries, Kent, vol. i, c. xi, pp. 342, 473, 515, 525-544, vol. ii, p. 27; Origin and Nature of the Constitution and Government of U. S., U. S. Sup. Ct. Reps., 9 L. Ed., 873).

18. Religious Tolerance, Established Church.—The English law and English ideals prevailing in the original thirteen colonies,21 there was a strong effort made by many of the delegates to the constitutional convention to have the Episcopal Church made the established church of the new republic. Thomas Jefferson and James Madison were probably the strongest opponents of the scheme, and outside of the great Carroll of Carrollton, they were the most earnest advocates of religious tolerance. The necessity for the fathers of this republic to be united, and their being unable to unite upon any church, caused the idea of an established church to be eliminated. Thus was established in our republic the freedom of conscience and the guarantee that no one shall be persecuted on account of his religious convictions. (Commentaries, Kent, vol. ii, pp. 35-37; Conflict of Laws, Wharton (3rd ed.), vol. ii, pp. 1327-8.)

19. Tribunals.—The ecclesiastical courts as a part of the state system and the “benefit of the clergy,” have been abolished in England and America. However, as we shall see further on, tribunals in the nature of the ecclesiastical court exist in churches and fraternities of all kinds in the United States. (Law of Fraternities, Scanlan, ch. xxiv; Conflict of Laws, Wharton, sec. 109; Baxter v. McDonald, 155 N. Y., 83; 49 N. E., 667; Morris v. Dart, 67 S. C, 338; 45 S. E., 753; 100 Am. St. R., 734; Terrett v. Taylor, 13 U. S., 43; 3 L. Ed., 650).