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 C89Q2. 
 
Profestant episcopal Cburcb 
 inHmerica/ 
 
 eourt of Review for tbe Second juaicial Depdrtment. 
 
 In the Matter of the Appeal 
 
 of 
 
 Rev. Algernon S. Crapsey, 
 
 from the Decision of the Trial Court of the 
 
 Diocese of Western New York. 
 
 Brief for Respondent 
 
 John Lord O'Brian, 
 
 Church Advocate, 
 
 Diocese of Western New York. 
 
 BUFFALO 
 
 C. B. RUSSELL CO., PRINTERS, 
 105 SENECA STREET. 
 
Protestant Episcopal Church in the United States 
 
 of America. 
 Court of Review for the Second Judicial Department. 
 
 In tlie Matter of the Appeal 
 — of — 
 
 Reverend Algernon S. Crapsey, 
 from the Decision of the Trial Court of 
 the Diocese of Western New York. 
 
 BRIEF OF RESPONDENT FOR ARGUMENT 
 ON APPEAL. 
 
 Jurisdiction of ti^e Court or Review 
 
 The function of the Court of Review is not to rlc- 
 terminc questions of policy or expediency; 1jut t(^ ad- 
 minister the law of the Church. (General Canon 29, 
 Section 5 and 18.) At present the powers of this Court 
 are practically limted to passing- upon technical errors 
 of trial or procedure. (General Canon 29, Section 5). 
 The Court should not reverse upon anv merelv techni- 
 cal error, hut it should reverse if suhstantial injustice 
 has heen done the Appellant hy anv serious misrulin.'^ 
 or error in the decision of the trial Com t. That is to 
 sav, this Court should not reverse unless con\-inced 
 
tliat corecting- the error would have materially altered 
 the decision of the Trial Court. 
 
 The embryonic provisions of the General Canons 
 relatino- to practice in the future, (Gen. Can(jn 29, 
 See's. 19, 20). when the ultimate Cou'/t of Appeal 
 shall have been established, have no bearing upon the 
 status of this appeal. There is now no canon in exist- 
 ence giving- the defendant a right of appeal to such a 
 Court. Idiere is now no ultimate Court of Appeal 
 in existence and, aside from probability, it is possible 
 that there never may be such a Court. The pnn'is'ou 
 of Article TX of the Constitution is permissive not 
 mandatorv, and its language is noteworthy: 
 
 "The General Convention, in like manner. ;//(7v 
 establish an ultimate Court of Appeal, solely for 
 iJic rc'Z'ic-a' of tJic dctcrinination of any Court of 
 Rc-i'icw oil questions of doctrine, faith, or ivor- 
 shi/y." 
 
 If the ap]iellant were right in his contention, there 
 would l)e no end to this case; if the next General C(5n- 
 \-ention should for any reason postpone the creation 
 of the ultimate Court of Appeal, then the decision of 
 this case would necessarily be postponed. Discipline 
 in the Church and the administration of justice in th'S 
 and other cases would be paralyzed. 
 
 I.* 
 
 The Court of Review has no power to pass upon the 
 
 *rhe Roman numerals, i-xi, hereinafter used correppond 
 with the points specifically stated aud numbered in the app- 
 ellant's notice of appeal. 
 
legality of the Diocesan Canons which prescibe the 
 way in which a Diocesan Court shall be chosen. 
 
 Its jurisdiction is limited to the reviewing- of deci- 
 sions when they have been made by Trial Courts. 
 (Gen. Canon 29, 5 and 18). No General Canon, Con- 
 stitutional Provision, or Statute of the church is point- 
 ed out as conflicting- with the Canons of the Diocese 
 of Western New York. No canon has conferred up- 
 on the Court of Review the power to make or unmake 
 the Courts or the laws of the Diocese of Western New 
 York. This Diocese obtains its power to create 
 a Diocesan Court directly from the Constitution of the 
 Church in America. (Art. IX.) 
 
 A. The Trial Court was not illegally organized. 
 
 ( 1 ) It was organized in strict accordance with the 
 provisions of the Canons of the Diocese (Title III, 
 Canon i, Sections I-VI, W. N. Y). The right of 
 challenge which the defendant twice exercised was 
 given him bv these Canons and the vacancies thus 
 made were filled in accordance with the Canons of the 
 Diocese. 
 
 (2) The power of this Diocese to create such a 
 Court dates from the creation of the Diocese, and was 
 originallv conferred upon the Church in this State by 
 the Constitution of 1789. Such power has never been 
 restricted and the present Court was organized in ac- 
 cordance with the present Constitution. ('Constitution 
 1905, .Article IX). 
 
 (3) The appellant was a member of the Diocese 
 when the present Ecclesiastical Ordiuances were ad- 
 opted (Vid. Journal W. N. Y.. 1883) ; it is to be a^- 
 
snnied that he was a member of the Council which ad- 
 opted them without objection : by virtue of these Or- 
 dinances, on two separate occasions, he proceeded to 
 challenge certain members of the Trial Court in ac- 
 cordance with the pri\'ileg-e granted liim by the Or- 
 dinances: he made no objection to the constitution 
 or jurisdiction of the Court until some time after he 
 ]iad availed himself of sjl^this privilege. 
 
 /;/ otlicr words, by challenging fico of the dccfcd 
 members of the Court his attorneys created the condi- 
 tion to ■iJiic]} the\ no'ze object. 
 
 P>. The Court was not unfairly organized. 
 
 (r) The sermons preached l)v the defendant and 
 afterwards ])ublished, anrl of which C(^)mplaint is made 
 in the Presentment were jM-eached from about No- 
 vember. 1904. down to late in February. 1905. (Case 
 p. 61. p. 78). In the following April, 1905. a pro- 
 test of ten clergymen bearing date April 19th, was 
 submitted to the Standing Committee. This protest 
 asked that an investigation l>e b.ad of the utterances of 
 the defendant and in particular of one of the above 
 mentioned sermons. The Standing Committee re- 
 l^orted these facts to the Council of the Diocese which 
 met May 18. T905. and informed the Council that the 
 Standing Committee had advised the Bishop to ap- 
 point a Committee of Investigation (Vid. Appendix 
 II, Council Proceedings, 1905, W. N. Y.. pps. 69-70). 
 The matter was known to be under advisement prior to 
 and during the meeting of that Council and when the 
 Trial Court was electedi 
 
 (2) The appellant was present as a member of 
 that Council ( May. T905) when a new Diocesan Court 
 
was elected 1)y the Council. The Journal of Council 
 Proceedings (1905, p. 24) shows that on the first bal- 
 lot to elect onl_v four clerg-ymen received a majority. 
 A motion was then put and carried whicli declared 
 Rev. C. M. Sills, afterwards challenged by the defense, 
 unanimously elected as a member of that Court. The 
 Court thus represented accurately the mind of th.c 
 Diocese as expressed in its Council. 
 
 (3) There is nothing in the record to shcnv that 
 at the time when the Standing Committee made the 
 nominations to the Council, as they were required to 
 do by the Canon (W. N. Y. Title HI. Canon I, Sec- 
 tion II), tliev had any intention of themseh-es present- 
 ing Dr. Crapsev for trial, or any idea that he would 
 lie presented for trial. In fact the reverse is true; 
 iVom the Council Proceedings above quoted, it ap- 
 pears that instead of proceeding against him, thev had 
 referred the matter to the Bishop. It is clear, there- 
 fore, that there was no bias or prejudice dis|)layed by 
 the Standing Committee and it was not their intention 
 at tliat time to take anv part in anv proceedings against 
 the defendant. 
 
 It should be observed that the a|)pe]]ant nowhere 
 directly charges bias on the part of the Standing Com- 
 mittee or the P)ishop. His arguments are all directed 
 against the svstem of choosing the Court. ;:nd the s}'s- 
 tcm is criticized simply because it might i)ermit the 
 influence of prejudice — not because the existence of 
 prejuflice has been proven. 
 
 (5) ■ It was the action of- the appellant's attorneys 
 in challenging two members of the Cotu't which ma;1e 
 it necessary under the Diocesan Canons foi- the P.ishon 
 
6 
 
 U) nominate two new members to sit on the trial, it 
 tlie appellant's attorneys had not made these cliallen: 
 c^es, a majority of the Court would have been men 
 elected by the Council of the Diocese. 
 
 (6) There is no evidence in the record or any- 
 where else to show that the Standing Committee re- 
 fused to appoint any person nominated by the Bishop 
 and the presumption is, therefore, that they simply en- 
 dorsed liis nominations. ( \'id. Title III C. I. Section 
 3, A\'. N. Y.) He. not they, really made the appoint- 
 ments. 
 
 (7) It should be noted rhat the Bishop was in no 
 wa}' connected v/ith the prosecution eitliei" theoretical- 
 ly or actually and that he had no part in ihe hring-iu)^ 
 of these charges. 
 
 The presumption is that CN'erythinq- was honestly, 
 conscientiouslv and properlv done and tlierc ts in the 
 record no e\-idence to refute this presumption. 
 
 (8) The whole argun.ient of unfairness, i. e., that 
 only the elected members coulrl lie impartial, is de- 
 molished by the fact that the onlv Judge who dissented 
 in favor of the defendant was the Rev. Dr. Dunham, 
 who was not elected bv the Cou.ncil luit nominated 1)v 
 the Bishop and a])pointed bv the Standing Commit- 
 tee. 
 
 (g) C. Finally, the whole of this line of argu- 
 ment in behalf of the appellant fails to take into con- 
 sideration the theory of the "Supremacy of the Spirit- 
 tiality" which underlies the entire polity of the 
 Church. — the ideal which holds that the standards of 
 the Church are righteous and that they are supreme. 
 This is the prcsumi)tion that the sworn jiriests of the 
 
Church are conscientious men and that they faithfully 
 and honestly discharo-c all duties imposed upon them 
 by the Church. In Engiand this principle lias been so 
 universally recognized that the Courts oi Common 
 Lazv have held, for instance, that there was nothing 
 improper in a Bishop bringing suit for a i)ension be- 
 fore his own Chancellor who had been appointed to 
 office by the Bishop (1853, Ex parte Medwin vs. 
 Hurst, I. E. & B, 609, cited by Phillimore). 
 
 The system of Courts here criticized by ap])ellant's 
 Counsel is directly analogous to the English system of 
 Ecclesiastical Courts. The argumciifs of appcllavt 
 fail to take into consideration that th.is z^^holc Ec- 
 clesiastical system had its origin not in the Common 
 La-n' -K'ith its jiiry system and chaUenges, but in the 
 ancient Civil La^:^' in -ieh.ic/i the supremacy of the 
 Courts and their impartiality w^^presumed. In Eng- 
 land many illustrations are found of these statements. 
 Eor instance, the Church Discipline Act of T892, ( Sec- 
 tion ic, Subd. 3.) expressly provides that a Bishop 
 may act as Bishop with respect to proceedings insti- 
 tuted against one of his clergv even though he s^ands- 
 in the relation of patron to the accused. 
 
 ( Vid. Phillimore English Ecc. Law II, p. T037. et 
 seq.) The Cliurch Disciidine Act of TS40, (C. <%. 3 
 & 4 Vict.), which still governs the discijdine of the 
 clergv in cases of false doctrine, was undoubtedly the 
 jjattern used in drawing the Canons for Western New 
 "^'ork. Under that Act (Sections 6-1 t) the Bishop 
 has power not onlv to nppoint a Ci^mmittee of hn'esti- 
 gation and to institute a prosecution. ]v\{ also to sit 
 in the Diocesan Court on the Trinl, — lie nlcMie liav- 
 
iiio- the power to decide the case and pmn'^nnce senl- 
 ence. In that Court tlie accused lias no rij^lit of chal- 
 leng-e. 
 
 The English Ecclesiastical Commissioners of 1832 
 recommended the restoration of the Bishop's personal 
 jurisdiction. In 1883 the Ecclesiastical Courts Com- 
 mission, composed of such men as Archbishop Tait, 
 Bishop Westcott. Canon Stubhs. Sir Roliert T^hilli- 
 more. E. A. Ereeman, Lord Coleridge and others, 
 specifically recommended an increase in the powers i>f 
 Bishops and a strengthening of their persfvnal juris- 
 diction ; oue of their recommendations licin.g that in 
 cases of heresy and breaches of ritual, the complaint 
 should l)e set down before a Diocesan Court consist- 
 ing of the Bishop with a legal anrl a theological as- 
 sessor, — the assessors to advise but to \rd\c no voice 
 in the decision. 
 
 (Vid. Report Ecc. Courts Commission of 1883, Vol. 
 I, and es]). A])])endix I, p. 32.) 
 
 The Ecclesiastical Comn.iiss-on of 1006, in 
 its report to Parliament just published, repeats these 
 recommendations as to the constitution of Diocesan 
 Courts. 
 
 (Vid. Report Royal Con.i'n on Eccles. Discipline, 
 T906. p. C)H.) 
 
 II. 
 
 The Trial Court did not err in proceeding to hear 
 the case. 
 
 (i) The defendant and his Counsel had ample 
 time for preparation. The Church having ordered him 
 
to prepare for trial he was bound to devote himself 
 to that task unless determined not to prepare at all. 
 He was given all of the time to which he was entitled 
 under the laws of the Diocese. The minimum time 
 allowed him by the Canons was five weeks. (Ecc, 
 Ord., W. N. Y., Sec. VI.) In issuing a citation the 
 Bishop gave him eight weeks, and the Court at its 
 first session gave an additional week, making nine 
 wrecks in all. The Court of Review cannot find the 
 time inadequate, in the first place, for the reason that 
 the law thus defined what was adequate time. And in 
 the second place, because aside from the law, the de- 
 fendant actually had ample time. 
 
 (2) It was the duty of the Trial Court to look 
 at the case not from the standpoint of any one individ- 
 ual, l)ut from the standpoint of the Church at large 
 and justice to the waiting thousands within the Churcli 
 who had been confused and amazed at the reported 
 teachings of the defendant. The issues had been mis- 
 understood and exploited h\ the ]>ress. The excite- 
 ment and controversv could n(^t 1)e prolonged with- 
 out injustice and danger to the Cliurch at large. Tlie 
 doctrines of tlie Church were not on trial and the de- 
 fendant should ha^■e been able to ex])lain frankly and 
 readily his p(")sition upon matters which he had \'<^iccd 
 more than a year pre^'ious. 
 
 There were serious technical objections to the Court 
 adjourning the case beyond its own life. — the possibil- 
 ity of changes in the Court, or Standing Committee, 
 anrl the consequent confusion as to procedure. The 
 lircparati(Mi of the prosecution had to be considerel as 
 vrcll as the ugly pre'.^eclent of OA-ertln'O'ving a jurlicial 
 
lO 
 
 system not because of partiality shown, but l^ecause of 
 the fancied possil)ility that partiahty might be shown. 
 ( Vid. Argument of Counsel for Standing Committee, 
 Case pps. 20-24.) A reasonable time was granted. 
 Under the circumstances the only defense possible was 
 explanation, and no explanation or defense was offered 
 or attempted. The events of the trial proved the wis- 
 dom of the Trial Court in proceeding with the case. 
 
 III. 
 
 The Court decided properly in declining to postpone 
 the hearing until after the next Diocesan Council 
 should be held. 
 
 (i) The appellant in his notice of appeal having 
 gone outside the record, in stating that the Council 
 did actually meet thereafter, it Ijecomes necessary to 
 state that when the Council met in May. 1906, after 
 the decision of the Trial Court had been made public, 
 that Council re-elected the Standing Committee of 
 eight by a very large majority; onlv ten nominations 
 being made and the old Committee being elected by an 
 average vote of about seventy-five as against twentv- 
 five votes cast for the two new nominees. So thor- 
 oughly did that Council approve the decision of the 
 Trial Court that it made no change in the canons for 
 Ecclesiastical Courts ; it declined to exert its privilege 
 of electing a new Court and it re-elected Rev. Dr. 
 Dunham, the dissenting Judge, at the request and upon 
 the nomination of the Standing Committee. 
 
 (2) Viewed from a practical standpoint the ap- 
 pellants argument is fallacious, — "So that the Court 
 
II 
 
 would not ccjiisist of nieiiil^ers appointed by the prose- 
 cution except or unless as said Convention should so 
 decide:" in other words, if the Council should decide 
 to elect a partial and biased Court, then the defendant 
 mig-ht have a fairer trial. 
 
 (3) The whole argument is met by the supposi- 
 tion that a new Council might re-elect the same Court, 
 and then if the same members should be challenged 
 there would l)e nothing gained by the delay. As the 
 c\-ent showed this was the mind of the Council when 
 it did meet. 
 
 IV. 
 
 The Trial Court had the right to pass upon all the 
 questions involved in the case. 
 
 ( 1 ) Fr( )m the earliest times Diocesan Courts have 
 had jurisdiction over this class of cases. 
 
 (Vid. See Blunt's Church Law\ 1882, Ch. III. pps. 
 26-27, Lacey's Hand Book, Appendix to Report Ecc. 
 Courts Com. 1883, etc.) 
 
 Tb.e Church in the State of New York has 
 liad power and jurisdiction over these cases 
 ever since 1789 and this Diocese has had 
 that power ever since its creation. (Constitution 1789, 
 Sec. 6, Constitution 1905, Article IX.) The power 
 has never been abridged or limited. Counsel for ap- 
 pellant (\o not and cannot ])oint out any statute limit- 
 ing this i)ower. No general Canon could limit this 
 jiower of the Diocese, because the power has been con- 
 ferred directly by the Constitution. Power conferred 
 by an Article of the Constitution cannot b<e limited 
 
12 
 
 or abridged by adopting a Canon, although a Canon 
 may define the scope of the Article in providing pro- 
 cedure, as has been done under General Canon 23. 
 
 (3) The power of the church to remedy false 
 teaching is an inherent power, anciently exercised by 
 the Bishops themselves without the assistance of 
 Courts. The fact that a limitation has been placed 
 upon the powers of the Court of Review in dealing 
 with questions of doctrine has nothing whatever to do 
 witli the jurisdiction of this Diocesan Court. This 
 limitation undoubtedly was placed upon the Court of 
 Review because there were lavmen on that Court, an 1 
 it is tlie intention of the Canon to prevent that C(nu't 
 from deciding these questions until an ultimate Court 
 of Ap]:)eal. which shall consist solelv of clergy, shall 
 be provided for by the Church. The present Diocesan 
 Court acquires jurisdiction under Article IX of the 
 Constitution. Sections 19 and 20 of General Canon 
 29, relating to future practice cannot affect a power 
 alreadv conferred bv the Constitution of the Church. 
 
 V. 
 
 The Trial Court ruled correctly in excluding opinion 
 evidence which practically dealt with the guilt or inno- 
 cence of the defendant. 
 
 (Vid. Argument of Counsel, Case pns. 91 et seq. 
 and tlie excellent opinion of Judge North, Assessor, 
 Case pps. 106-107.) The Church is an organization 
 and speaks as an organization. In her services of 
 Baptism, Confirmation and Ordination, she has pre- 
 scribed her conditions of membership, and thev do not 
 
13 
 
 permit of dispute or alteration by individuals. The 
 only function of an expert witness is to explain facts 
 which are in their nature so technical that they are 
 unintelligil)le to a Court or jury. It was a presump- 
 tion of law that the clerical Judges knew the law of 
 the Church. The opinions which might have been of- 
 fered in this case would have dealt simply with the 
 justification of the defendant in disobeying- and dis- 
 regarding- the laws of the Church. In England such 
 opinions cannot be offered for this purpose; the judg- 
 ment in the Gorham case having decided that although 
 opinions might be offered in the English courts for 
 the purpose of showing the liberty allowed in Eng- 
 land in maintaining certain d(^ctrines, thcv could not 
 he recei\'ed as evidence of the doctrine of the Church. 
 ( Gorham vs. Bishop of Exeter, Broderick & Ereeman- 
 tle. Judgments of the Privv Council pps. 64 et seq.) 
 
 The English decisions are at most merely analogies 
 rmd not precedents. E^■en as analogies they mus' h<^ 
 cmsidered vritli reference to th.e make-Uj5 of the Jutli- 
 cial Committee of the Privy C'umcil, \vln'c]i ?it the 
 present time is a body ui)on which clergv sit as a^^ses- 
 sors only, having no voice in the dcc'sions. It niust 
 he borne in n.iind also tint the English Or;h'ni] rea-'s 
 differently from our own. It requires the priest to 
 minister the doctrine and discipline of the Church "as 
 this realm hath received the same." The question in 
 the English Courts .therefore, is not only what the 
 law of the Church requires, but what is the practice 
 of flic realm in enforcing those requirements. The re- 
 sult of permitting the introduction of sucli testimony 
 • in the En.g]is]i Courts has been th.e exhibition of n 
 
14 
 
 vvuful lack and failure of discipline. Our Diocesan 
 Courts and Courts of Review, on the other hand, are 
 created by Canon and Constitution in a free Church. 
 They are not Courts of the realm bound to make rea- 
 sons of State a part of Church policy, and they are in 
 no way bound by Eng-ish precedent. The only recent 
 American precedents in cases of this cort are the 
 MacOueary and the Cheney cases; it is worthy -of note 
 tliat the decision of the Trial Court now under con- 
 sideration conforms in all particulars to those preced- 
 ents. 
 
 Finally, and apart from all these considerations the 
 contention of the appellant is wilhimt f(^rce for the 
 reason that the law of the Diocese provides that "the 
 law of this State relating to evidence shall govern the 
 Court." (Ordinances Ecc. Court. W. N. Y. Sec. 14.) 
 Under the law as administered in New York State, 
 such opinion evidence must be excluded, and this fact 
 is a conclusive answer to appellant's contention. 
 
 VI. s 
 
 The testimony of Rev. Mr. Alexander cannot be 
 disregarded, disputed or dismissed by this Court. 
 
 (i) Even if Mr. Alexander had been biased or 
 prejudiced, there is no dispute as to the facts to which 
 he testified so clearly and emphatically. There was 
 no conflict of evidence upon these points to which he 
 testified. There was no motion made to strike out the 
 evidence ; no motion made to have the Court disregard 
 it, and the appellant's attorneys should he estopjDed 
 from raising this question at this time. No witnesses 
 
15 
 
 were sworn to impeach him; no attempt was made to 
 impeach him. The cross-examination did not in any 
 way break his testimony ; it simply strengthened it by 
 bring-ing out the fact that he had written out the utter- 
 ances immediately following the service at which he 
 heard them. It is true that the witness showed an un- 
 fortunate acerbity of temper and some impatience 
 under what he apparently deemed inquisitorial ques- 
 tioning and contempt for his word as a clergyman, 
 but these facts do not detract from the apparent hon- 
 esty with which he gave his evidence. 
 
 (2) It is wall established that the testimony of one 
 witness, even if uncorrolx>rated, is sufficient. This is 
 true of the law as administered in New York State 
 and which controls this case ; it is also true of the law 
 as administered in Ecclesiastical cases. 
 
 (Vid. Record on trial of Bishop Onderdonk.) 
 
 (3) The evidence of Rev. Mr. Alexamler was not 
 impugned directly or indirectly: it was not disputed; 
 no witnesses were produced to deny it or to impeach 
 his ^•eracity. The Trial Court was the best judge of 
 the appearance and behavior of the witnesses and of 
 the inferences which might be drawn from his appear- 
 ance and testimonv. They found that the witness 
 spoke the truth. The Court of Review has no power 
 to find otherwise as to the facts. It is respectfully sub- 
 mitted that the findings of the Diocesan Court as to 
 facts, where there is undisputed evidence to supi'x^rt 
 those facts, must be conclusive upon this Court. 
 
 (4) The fact that no witnesses were sworn by tb.e 
 prosecution to corroborate the testimony of Mr. .\lex- 
 ander relating to the sermon of December ^t, tq'^-- 
 
i6 
 
 was the result of the statement made ]3y Counsel for 
 the defense, who, when Counsellor the Standing Com- 
 mittee offered to call corroborating witnesses, stated 
 that the defense would offer no evidence as to the de- 
 liver}^ of the sermon in question. An examination of 
 the record shows that this statement misled the Coun- 
 sel for the Standing Committee. 
 
 (Vid. Case, p. 86, remarks of Counsel.) 
 (5) As a matter of fact the testimriny of Rev. 
 Mr. Alexander was corroborated bv all of the evidence 
 taken from the book, which tended directlv to su]^]:)ort 
 I'lis testimonv. The defendant's failure to take the 
 stand to contradict or impug'n this testimony should 
 be taken into consideration in weighing its accuracy. 
 
 VII, VIII AND IX. 
 
 The Court of Review cannot pass upon the points 
 raised in these paragraphs of appellant's notice of 
 appeal for the reason that it cannot "determine any 
 question of doctrine, faith or worship." 
 
 In so far as counsel for the appellant intimates that 
 the conviction does not accord with the charges or 
 proof, it should be noted that the defendant was not 
 charged with saying in so manv words that he dis- 
 agreed with the Church in doctrine. He was charged 
 with having made statements which iji themselves 
 actually did deny and impugn doctrine of the Church. 
 The claim that the decision did not conform to the 
 charges and proof is a technical question w^hich can- 
 not be raised now for the first time. Tt is not leased 
 upon any exception tnken and is not made one of the 
 
17 
 
 grounds for appeal in the n(jtice of appeal, and there- 
 fore cannot he now taken ad\'antage of. 
 
 However, this last contention is without merit. The 
 word "advisedly" as used in Canon .23 is undouhtedly 
 descended from the same usage in the old "Statute of 
 Elizaheth" so-called. (13 Eliz. C. 12. S. 2.) What 
 was meant hy the word "advisedly" was considered 
 years ago in the English Court of Arches hy Dr. Lush- 
 ington upon the trial of Ditcher vs. Denison and it 
 w-as there held that "advisedly" meant not "with an 
 avowed purpose of infringing the law," hut simply 
 "deliberately," and the publication of the sermons hav- 
 ing been proved, it was held not necessary to prove 
 that the defendant had by his language intentionally 
 contravened law' or doctrine. 
 
 (Vid. Citation from Opinion sub Title in B. & F. 
 Ecc. Judgments, etc., p. 162.) 
 
 See also Opinion of Judicial Committee of the Privy 
 Council — Lord Cranworth writing — in Keith vs. 
 Burder. (B. & F. etc. 212, 233, 234, 242). The 
 determination was the same in this case, vix., that "ad- 
 visedlv" meant simply "deliberately spoken" as dis- 
 tinguished from a casual expression dropped unad- 
 visedly. 
 
 The offense charged by the Presentment was. 
 (Charge I), 
 
 "That the said Rev. Algernon Sidney Crapsey 
 has violated Canon 23 of the General Canons of 
 the Church, and in particular sub-secti(^n b of sec- 
 tion I thereof." (Case. p. 4.) 
 
 This Canon and sub-section provide that a priest 
 shall be liable to Presentment and Trial for, 
 
i8 
 
 "(b) Holding and teaching piil)licly or pri- 
 vately, and advisedly, and doctrine contrary to 
 that held by this Church." 
 The decision (Case pp. 130-131) finds tlia" the de- 
 fendant did deliver the sermons and did ])rint them 
 in book form, thus clearly establishing that he acted ad- 
 visedly. The decision then further finds the defendant 
 guilty of the Charges set forth in the Presentment in 
 that by publishing these sermons he did express his 
 l)e]ief in and impugn and denv certain \'ita] doctrines 
 of tlie Christian Church. (Case p. 132.) The con- 
 tention that the defendant was not found guilty of 
 adx'isedly promulgating these doctrines is therefore 
 with.out any support in fact. 
 
 B. Th.e defendant having been pro^•en nnd found 
 guilty under Charge I as above set forth, it followed 
 that he must have been guilty as found under Charge 
 II in specification I thereof. 
 
 The presumption is that in taking sex'eral ordination 
 vows a man is able and willing to accept all of them. 
 These vows taken together constitute a contract^ — a 
 contract of a permanent character. The controlling 
 vow in the contract is the one providing that the priest 
 will minister the discipline and doctrine, "as this 
 Church hath received the same. If a man fails to 0I3- 
 serve this clause of the contract, the contract is broken. 
 If the contention of the appellant were correct, then 
 any priest who, ministering to the people leads them 
 in the recital of the creed and in the same service 
 ridicules it or characterizes its declarations as false, is 
 not violating anv ordination ^-ow. Tt should be ob- 
 
19 
 
 served that the dissenting- Judge in effect fonnd the 
 defendant guilty on this charge; finding that the de- 
 fendant's error consisted in defining wliat God has 
 not been pleased to reveal, "and interpreting those 
 doctrines in a manner not generally received by the 
 Church." (Case p. 134.) The whole argument on this 
 subject may fairly be epitomized l)y asking the ques- 
 tion whether any man who held the views of defendant 
 could now be ordained to the ministry. Tlie answer 
 to that question disposes of this whole case. 
 
 X. 
 
 This paragraph in the notice of appeal should be 
 stricken out as vague and indefinite. 
 
 The general Canon is clear, direct and controlling 
 upon this point. It provides that the notice of appeal 
 shall briefly set forth the grounds of the a]ipeal. (Gen. 
 Canon 29, Sec. 6.) The intent of the Canon is that 
 
 The recommendation of sentence does comply with 
 the Constitutional provision (Article IX) requiring 
 that "a sentence of suspension shall specify on what 
 term.s or conditions and at what time the suspension 
 shall cease." 
 
 To get at the intent of this section it should be noted 
 that it does not recjnire a length of time or a period oi" 
 
20 
 
 time to be fixed : it simply implies that the suspen- 
 sion must terminate at some time and np':)n some con- 
 ditions being first fulfilled by the defendant. Common 
 sense shows that the sentence of the Trial Court fixed 
 both the time and conditions. It permits the appellant 
 to fulfill the conditions as early as he desires and pro- 
 vides that the sentence is to cease the moment that he 
 fulfills the conditions. 
 
 xA.. It was competent for the Trial Court to recom- 
 mend a sentence of suspension for this kind of an of- 
 fense, \'iz., the preaching of false doctrine. 
 
 In England, suspension is used only in cases of 
 minor offenses and the Eng-lish authorities must be 
 read with this fact in mind. But neither our Consti- 
 tution nor our General Canons prescribe any definite 
 form of penalty for any particular offense. 
 
 (Vid. Constitution. Article IX; Gen. Can. 23, Sees. 
 I & 2.) 
 
 Under these provisions a man convicted, for instance, 
 of immorality or of habitual neglect of public 
 Vv'orship may'be deposed, or suspended, or admonished 
 at the discretion of the Court and Bishop, and the law 
 is the same in case of a man con\-icted of teaching 
 false doctrine. It is clear, therefore, that the C(nn"t 
 had the right to recommend suspension even though 
 the offense was a major one. 
 
 B. It was competent for the Trial Court to impose 
 the condition that the defendant must present satis- 
 factory proof to the Bishop ("Ecclesiastical Author- 
 ity") before his suspension should terminate. 
 
21 
 
 Under y\rticle IX, the Court had the right to pre- 
 scrihe the conditions. There is no Canon Hmiting or 
 defining- the conditions which such a Trial Court may 
 impose. There is no evidence in the record upon 
 which the Court of Review can base a finchng that the 
 conchtion specified was not reasona1:)le. in the Tem- 
 poral Courts sentences do not provide for terms and 
 conditions: they simply specify for punishment <i 
 period of time in months or years. Any argument, 
 therefore, founded on attempted analogies in the law 
 of the Temporal Courts is misleading and specious. 
 The Constitution clearly intends that terms and condi- 
 tions as well as time shall be specified. 
 
 Hoffman (Ecc. law, page 434) says that in England 
 the settled practice in suspension for haljitual vicious- 
 ness is to require a certificate as to good behavior 
 made by neighboring clergy to be filed before restora- 
 tion ; and that this requirement is made a part of the 
 sentence. That is to say, a man is suspended for a 
 definite period of time and in addition is required, at 
 the expiration of the period specified, to procure and 
 file such a certificate before he can resume liis duties. 
 There are a number of such instances. Tn the case 
 of Saunders vs. Davies (I Add., 291 ), citcfl in Burn's 
 Ecc. Law, II p. 146a, a minister was suspended for 
 three years, the suspension not to be remrived until n 
 certificate as to good behavior during suspension 
 should be procured and filed. This sentence was made 
 bv the Court of Arches. In Watson vs. Thorpe, a 
 similar punishment was inflicted, the Court following 
 a former precedent "Dicks vs. Hudde<^ford" (A'id. 
 Burn's II, 146 a.). On this subject Cri])]5S in his Law 
 
22 
 
 of the Church (p. 663) cites the case of Hodgson vs. 
 Oakley, where Sir H. J. Fust, sitting in the Court of 
 Arches revoked a Hcense and prohibited the defendant 
 from performing nn'nisterial functions in the Province 
 until he should recant. He refers also to the case of 
 Bishop of Lincoln vs. Day, I Rob. Ecc. Rep., 724. In 
 this case the man was suspended for three years and 
 further until he should exhibit a certificate, etc. : on 
 In's resuming his clerical duties at the expiration of the 
 period without procuring the certificate lie was de- 
 clared in contempt. 
 
 Vid. also the Opinion of Sir J. Nicholl Saunders vs. 
 Da\'ies. supra, the case of Trower vs. Hurst, citel bv 
 Hoffman. 422n and the case of Cave Jones, N. Y. 1822 
 suspended until he should retract and submit. Also 
 Hoffman at page 433 the form used in relaxing the 
 sentence of T. Clowes. 
 
 These instances cited show what was intended bv 
 "terms and conditions" and show that under the word- 
 ing of the Constitution (.^■rl. TX) it was competent 
 for the Trial Court to make this requirement. There 
 is no essential difference between requiring a certificate 
 and requiring satisfactory proof; nor is there anv in- 
 justice or unreasonableness in this requirement. Who 
 better than a Bishop can pass upon the general ques- 
 tion of a priest's competencv to minister? 
 
 C. The sentence recommended does specify "a 
 time" within the meaning of the Constitution. 
 
 It being competent for the Trial Court to prescribe 
 terms and conditions, and it being competent for that 
 Court to suspend the defendant for the offense charged. 
 
23 
 
 the Court has specified the only time possihle for it 
 to specify. Such tcacliing as the defendant was 
 charged with was a continuing offense — not a single 
 act over and done witli. The oljject of every sentence 
 must l)e to punish a crime — and also to prevent its 
 repetition. If a man convicted of teaching false doc- 
 trine were merely suspended for ten years, such a sent- 
 ence would not prevent a repetition of the offense. It 
 was, therefore, necessary as well as competent for the 
 Trial Court to require some guaranty as to future con- 
 duct. The English cases above cited show the ration- 
 ale of this kind of penalties. 
 
 The case of Bishop Onderdonk throws a flood of 
 light upon this whole question, for the present Con- 
 stitutional Provision on suspension was undoubtedly 
 framed with a view of preventing a recurrence of what 
 ha]ipened in that case. There the sentence of suspen- 
 sion read as follows : 
 
 "It is herebv ordered and declared that the sent- 
 ence of this Court upon the Respondent is suspen- 
 sion from the office of a Bishop in the Church of 
 God, and from all the functions of the sacred min- 
 istry, — and this Court do herebv solemnlv pro- 
 nounce and declare that the Right Rev. Benjamin 
 Tredwell Onderdonk is suspenderl from all exer- 
 cise of his Episcopal and ministerial functions — 
 and do order that the notice of this sentence re- 
 fiuired by said Canon be communicated bv the 
 Presiding Bishop, under his hand and seal to th? 
 Ecclesiastical authoritv of everv Diocese of this 
 Church." 
 (Proceedings (^n Trial B]i. Onderdonk, etc., p 330.) 
 
..>4 
 
 In other words, Bislioji Onderdonk was suspentletl 
 indefinitely. There were no terms or conditions speci- 
 fied which he might observe or meet; no 
 period of time specified and no terms giv^en from which 
 a time could be determined or even surmise I. In the 
 present case these defects are fully mef. The terms and 
 conditions are that the defendant shall present satis- 
 factory proof of conformity: the time when his sus- 
 pension is to cease is the moment that h.e shall present 
 such proof. If the appellant had been sentenced to be 
 suspended for three years and then required to present 
 satisfactorv proof he would have to stand ])unishmeni; 
 for three years before he could ])resent his proof. Tf 
 the appellant's arguments on this point were sound, 
 then a Trial Court, whether it wished to or not. would 
 be obliged to suspend a man for a term of years in ad- 
 dition to requiring him to fulfill certain C(MiditionT. 
 This is a reductio ad absurdum. The Trial Court has 
 been more merciful; having the right to recjuire him to 
 present satisfactory proo^ 't has not required him 
 to stand under a cloud for cen years or twenty years, 
 1)ut has provided that his suspension shall cease at 
 the moment when satisfactory proof shall be furnished. 
 The intent of the Constitutional provision is simply 
 that a maximum time shall be fixed. The Judges 
 have made the maximum a minimum, and have enable.l 
 the defendant to lift the sentence at once. They ha\e 
 merged the terms, the conditions and the time all into 
 one phrase. This may have been awkwardly done, 
 but the awkwardness, if any, was due to their merciful 
 attitude; their action was not illegal and the sentence 
 
 is not void. 
 
 H ^ 
 
The objection made by the appellant that the defend- 
 ant could not be convicted for publishing his book, be- 
 cause he was not charged with so doing is not borne 
 out by the Presentment, the first general Charge of 
 which charged him with having printed the sermons 
 in book form "and that said book was published, sold 
 and circulated with the permission, consent and au- 
 thorization of the said presbyter." (Case page 3.) 
 
 This technical objection of course does not apply to 
 the facts connected with the preaching of the sermon 
 of December 31st, 1905, upon which the defendant was 
 found guilty by the decision. 
 
 Prior to 1905 the law of the Church relating to the 
 teaching of false doctrines was the same in sul^stance 
 as it is now, except that it was set out in Canon No. 2 
 of the old Canons and it is now set out with some verb- 
 al changes in Canon No. 23, which went into force. 
 January i, 1905. There was also a slight difference 
 in phraseology relating to punishment. Part of the 
 sermons complained of, and which were set out in the 
 appellant's book, were preached prior to January i, 
 1905, and part of them after that date. (Case page 
 61, page 78.) The book was published iate in 1905. 
 The objection above referred to was made by Mr. 
 Shepard at the close of the trial whereupon Counsel 
 for the Standing Committee, in accordance with the 
 privilege given him by the Ecclesiastical Orrlinances 
 (Section 14), moved to amend the Presentment "By 
 
inserting- at the end of the first paragraph of Charge 
 J, and at the end of the lirst paragraph of Charge 2, 
 the words 'and also the same law of the Church as it 
 existed during the year 1904, and as embodied in. 
 Canon 2, Title 2 of the Digest of Canons' ". Tiie Coun- 
 sel at that time stated to the Court that the three Coun- 
 sel for the Standing Committee were satisfied with 
 the legality of the Presentment as it then stood, but in- 
 asmuch as no injustice could be done the defendant 
 and he had raised the point they would amend if the 
 Court thought it necessary. Apparently the Court 
 found it unnecessary to consider this amendment, for 
 it based its finding-s upon the fact of the publication 
 of the book and the. delivery of the sermon of Decem- 
 ber 31, 1905. The defendant had been apprised in 
 the Presentment of both of these charges and cannot 
 plead surprise. 
 
 In conclusion the attention of the Court is again 
 called to the rule set oirt at the beginning of this brief, 
 namely, that justice requires an affirmance of this deci- 
 sion unless it has been shown that by serious error in- 
 justice has been done the appellant, and unless the 
 
 Court IS convmced that,sucl\ error would have made a 
 
 ;,si 
 \ 
 
 material change in the decision of the Trial Court. 
 
 The defendant was given every right of protection 
 under the Canons ; he availed himself of all of the 
 privileges so granted him.; the trial was fairlv and 
 
I 
 
 -/ 
 
 honestly coiulucled by men against' whom no charge 
 of bias can be made; the Court had jurisdiction of the 
 cause and of the person of the defendant; upon 
 this appeal no claim is made of any save technical 
 errors ; and those alleged technical errors do not exist. 
 
 11ie Diocese of Western New York asks that the 
 Decision be affirmed. 
 
 All of which is respectfully submitted, 
 JOHN LORD O'BRIAN, 
 
 Church Advocate, 
 Diocese of Western New York. 
 
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