Year: 1869

/. Co LKN nllls nG NOuAb AaNA liz w A


that this restriction upon the Bisho
was meant as a guard, and lie had 4
more right under such conamissio


as has been issued to appoint sue


presentation than anybody els


where we have, and of couTs
the presenters have no right. Til


coming together of the five person


and assuming TO act as a Court, th


Court thought, was a violation Of th


cauons which require that the Bisho


shall select six persons, out Of whic


the accused shall have the right t


select; and. as he construed the can


ons, the party accused has the rJgh


Of a notice from the Bishop, and 0


twenty days IN which to make HI


selection, Then there is, accOrdin!


to the canon, necessary, a notice o


thirty days of the trial. This consti


tutes jurisdiction, in fact-the fac


that only seventeen days, even by the
| extension granted, were allowed Mr
Cheney to select those parties. 1t /!


true, there is some difference ol
opinion among the counsel IL
the construction of that canon


but in my judgment it is i'm.
possible for it to be construed
otherwise than as / have done. The
/ Court coming together, it is alleged
| by the bill that il had been selected
by the Bishop and organized by the
| Bishop to convict; that the Bishop
bad prejudged the case, and was bias
ed against the complainant, and had
intimated to him that in case his con-
| tumacY led to his being brought be-
fore Court for trial, there could be
but one result or disposition; and
he further stated that it should be so,
for the cause that In this decision no
one would be competent to sit on the
Court who had signed a certain pro
test upon which also was the name of
the Rev. Mr.. Cheney, and the right to
sign which was part of the offenses,
or involved as an issue In this case.
It was claimed there should be
allowed the right Of challenge-the
right to ask members of the Church
whether they had formed or expressed
an opinion as to the guilt Of the ac-
cused. This right of challenge was
overruled, and / may here say that,
according to the best legal authori-
ties Of the Church itself, it was
wrongly, and L might even say, op-
.pressiveIy, overruled. There is prob
ably not In the world a tribunal, GER
tainly not a civil one, and | doubt if
an ecclesiastieal one, which would


overrule so summarily an objection


of this kind. The right of challenge


is a God given right, which cannot


take away that. This also was one of
the objections which should have


been sustained by the Court. An
other objection also that was raised
by the accused, was that the pre- sent


ment of the paper which stands In an
ecclesiastical trial the same as an in


dictment at common law, viz, the
specifications of the offenses for


which the party is to appear and


stand his trial, was insufficient. The


Court had no right to proceed to try
him on such objection. This was
! also overruled. The objection was,
the alleged offense was stated
as having admitted the word re
generation In the infant bap-
tismal service on divers occasions
within the past two years, and as
stated in another place, within the
past six months, not specifying the
dates of the commission of the Otfense
or the names of persOUs to be called
as witnesses against the accused. Now
| may here express my astOnishment
at the Court overruling an objection


Of this kind. Even Mr.. Hoffman, the
great authority of the Church in
this country, says that such an
Indictment is bad in all kinds Of
law, common, military, civil and
enthusiastically, and | may state that
it is opposed to the plainest dictates
Of common sense. Mr.. Hoffman also
characterizes it as absurd and illegal.
Now, some of these, if not all, were
objections that went to the very
foundation of the jurisdiction Of the
Court over the subject matter, and If
wrongfully overruled the Court was
proceeding outside its canOns, and had
no right to do so. Now here is a
very important question, whether the
wrong complained of is such as a
Court of Chancery has jurisdiction
to inquire into and redress. This Is
the wrong complained of on, the
part Of the Ecclesiastical Court.


To state in a few words my views
upon that point, the Court here and
the Council here must show two cir
cumstances to exist and co exist, in
lder to Justify the taking of jurisdic-
ton in this Court. There must be,
as the inevitable, natural, or to
his rights of property, and the injury
must be such as the court to be
irreparable in its nature, was 1t the
! inevitable consequence that there
| would be an injury to the property
rights Of the plaintiff. If the Court
were allowed to proceed, the bill sets
| for that. The Rev. Mr.. Cheney has
for many years been a presbyter oil
| Christ Church in this city, in the
/ Diocese of Illinois; that he was edu-
Gated for such Office; that he IS in
recent of a salary of 1900 per
anuum. and also that he enjoys GER
tain emoluments in the shape OF a
parsonage. rent free, from the parish.
1 Now, what would be the consequence


of the Court, In this instance, pro
ceeding with this trial? lt IS said
that the consequence would not ne
cessarily be the deposition or even
the suspension Of the complainant.
It is said that there has been no SEN
tence. Yet, my view is this, that II
this is court proceeding in violation


of its canons outside them, and with
out any jurisdiction, it must be pre-
sumed to intend all that may


befall in the prosecution OF the
case, even the worst that
may befall. They must be
presumed to intend the deposition OF
this party, because they. put him
without the right to the risk Of depo-
sition. And the bill, | may say, goes
further, and states that the Bishop


has made threat, or what has been


so taken and understood as threat


that there shall be a deposition IL


this case. 1t is true that the Bishop