ART. IV.-OUR FRAGMENTARY CONSTITUTION. FOR several years past the General Conference of the Methodist Episcopal Church has been searching for a constitution. No one seems to have doubted the fact that a constitution of some sort actually existed, but the exact nature and extent of it have been the matters in dispute.

In their address to the General Conference of 1888 the bishops instituted certain inquiries respecting the constitution of the General Conference, and various resolutions upon the subject were subsequently offered and referred to committees, until at length provision was made for a commission of seven ministers and seven laymen, one from each General Conference district, and three of the general superintendents, who were to define and determine, if possible, the constitution of the General Conference, to identify the disciplinary paragraphs containing it, and to make their report to the ensuing General Conference.

On the afternoon of May 3, 1892, this commission submitted its report to the General Conference, designating the constitution as "the document drawn up and adopted by the General Conference of 1808, but modified since that time in accordance with the specifications and restrictions of the original document, and is now included in paragraphs 55 to 64, inclusive, in the Discipline of 1888, excepting the statement as to the number of delegates provided for in paragraph 55, which is an act solely within the power of the General Conference under permission of the second restrictive rule."

The commission also submitted a statement designating those parts of the Discipline forming "the organic law of the Church," namely: the Articles of Religion, the General Rules of the United Societies, and the constitution above referred to.

The commission likewise proposed a new form of constitution to take the place of the one already designated, provided the General Conference and the several Annual Conferences should adopt it by the requisite constitutional vote.

Tuesday, May 10, was fixed upon as the time for considering the report. Discussion began upon the definition of the existing constitution, and the exact extent of it. Many able

speeches were made and several amendments and a substitute were proposed, and on Friday, May 12, the following paper was adopted:

J. F. Goucher moved, as a substitute for all, the following: "The section on the General Conference in the Discipline of 1808, as adopted by the General Conference of 1808, has the nature and force of a constitution. That section, together with such modifications as have been adopted since that time, in accordance with the provisions for amendment in that section, is the present constitution, and is now included in paragraphs 55 to 64, inclusive, in the Discipline of the Methodist Episcopal Church of 1888, excepting, first, the change of the provisions for the calling of an extra session of the General Conference from a unanimous to a two-thirds vote of the Annual Conferences; and, secondly, that which is known as the plan of lay delegation, as recommended by the General Conference of 1868, and passed by the General Conference of 1872."

After adopting the above substitute the General Conference decided to postpone indefinitely the further consideration of the commission's report, with instructions to have the report published in the papers of the Church and presented to the next General Conference.

This did not wholly terminate the discussion, though a feeling existed that the action of the Conference had settled the fact that the Church has a constitution, and that it embraces more than the paragraphs containing the restrictive rules and the documents therein designated. The Daily Christian Advocate of May 14 contained the following editorial deliverance:

The action on the part of the report was exceedingly important. It settles the question as to what is of the nature and force of a constitution and what is not. That is a great gain-great enough to justify the existence of the commission, if nothing more comes of it. Hereafter the claim will not be set up that nothing is constitution but the restrictive rules. There are constructive rules as well as restrictive rules, and both the constructive and restrictive rules belong to the same instrument and stand upon the same ground as to authority and binding force. The only difference between the two classes of rules is with reference to the provision for change. There is a provision for altering or amending the restrictive rules, while there is none for altering or amending the constructive rules; but then the fact is assumed and justified by the debates and by usage that the process prescribed for changing the restrictions should and may apply as

well to the constructive rules-the latter including all that part of the constitution which constructs the General Conference by giving it its membership, its quorum, its presidency, its powers, and its limitations.

The statement that there is no provision for amending the "constructive rules," and the assumption that the "constructive rules" could be changed by the same process prescribed for changing the restrictions, speedily called out a demurrer and awakened a good deal of thought which possibly found no expression.

Legal minds perceived that either the "constructive rules" are changeable (yet not so as to destroy their integrity) at the will of the General Conference in accordance with the grant of power, or else they are not changeable at all. It is a settled maxim that a constitution which provides for its own amendment, and grants no power beyond that, cannot be changed by any other process than that prescribed in the instrument itself.

Von Holst, in his treatise on the Constitution of the United States, declares that valid arguments cannot be found in support of the erroneous and dangerous doctrine that the peoplemeaning by this the majority of the persons with full political rights-can, by virtue of their sovereignty, amend a constitution in any form or manner other than that prescribed in the Constitution. Popular sovereignty, he declares, is not identical with boundless arbitrariness. The people cannot be bound, but they can bind themselves; and precisely because they have bound themselves they have less right to place themselves above the law established by the sovereign will.*

In harmony with this doctrine, on Tuesday, May 17, Judge William Lawrence, of Ohio, secured the floor and offered the following:

Resolved, That the constitution of the Methodist Episcopal Church can be changed only in the mode and to the extent therein authorized.

In support of the resolution Judge Lawrence offered various able arguments and legal citations designed to prove that the people of the Methodist Episcopal Church have no power to

* Constitutional Law of the United States of America, pp. 265, 266.

assemble in convention and by their decree overthrow the present constitution and substitute a new one in its place. He held that there is no mode of amending the constitution other than that provided in that instrument. He further remarked:

1. Every person who unites with the Church impliedly agrees, if not in express terms, to abide by the constitution of the Church, to accept its lawful methods of effecting changes therein, and not to aid in making changes in any other mode. This is a part of what in law is called the "contract of church membership." Any change effected in any other mode will violate this contract, and be an invasion on the rights of every church member. The civil courts are bound to prevent this invasion and protect the church existing in the lawful forms. The contract of church membership includes property rights, which civil courts will protect, if they do their duty, under pressure of popular clamor, or fail in it from ignorance.

2. This is the law as settled by courts and as applied to a change of a State constitution.

When the constitution of a State provides a mode of changing its provisions no change can be made in any other mode. The people of the State have no right to make a change in any form they may originate or inaugurate. In support of this I refer to court reports of decisions, as follows: 6 Cushing, Massachusetts Reports, 573; 14 Rhode Island Reports, 649; Jamison on Constitutional Convention, Fourth Edition, section 570; State vs. Governor, 46 Ohio State Reports, 677; State vs. Neil, 40 Missouri Reports, 119; State vs. Swift, 69 Indiana Reports, 525.

In Jamison on Constitutional Conventions, Fourth Edition, 570, it is said: "If the constitution (of a State) authorizes its own amendment through the agency of a convention without further provisions, it is beyond dispute that it could not be amended in what we have called the legislative mode."

In Wells vs. Bain, 75 Pennsylvania State Reports, the court says: "Suppose a constitution formed by a voluntary convention (by the people), and an attempt made to set it up and displace the existing lawful government. It is clear that, neither the people, as a whole, nor the government having given their assent in any binding form, the executive, judiciary, and all officers sworn to support the existing constitution would be bound, in maintenance of the lawfully existing institutions of the people, to resist the usurpation, even to the whole extent of the force of the State."

The same rule applies as to the change of church constitution. In support of this I refer to: Rottman vs. Bartling, 35 N. W. Reports, 126 S. C.; 22 Nebraska Reports, 375; Sutter vs. Trustees, 42 Pennsylvania State Reports, 503; Schuorris Appeal, 67 Pennsylvania State Reports, 38; Austin vs. Scaring, 69 American Decision, 672, notes; Wayland's Moral Science, page 337, chapter

on the Constitution of Societies; and Bacon on Benefit Societies, section 38.

The Supreme Court of Indiana in Lamb vs. Cain, decided November, 1891, says as to a church constitution: "It is undoubtedly true that the organic law cannot be changed in any other manner than that provided by the instrument itself, where it provides for an amendment or change."

Just how far the General Conference sympathized with Judge Lawrence's views we have no means of determining. His resolution was referred to the Committee on the Judiciary, which, unhappily, did not report upon the subject, so that the matter was left unsettled.

As for the notion that the people as a whole cannot fully amend their constitution whenever they deem it necessary, we should like to offer a statement from a work which has become a text-book in many of our schools. In defending the Constitution of the United States before the people of Pennsylvania, many of whom were at first unfriendly to it, James Wilson, one of the wisest and ablest of its framers, took the lead, and among many other arguments used the following:

However true it might be in England, that the Parliament possesses supreme and absolute power, and can make the constitution what it pleases, in America it has been incontrovertible since the Revolution that the supreme, absolute, and uncontrollable power is in the people before they make a constitution, and remains in them after it is made. To control the power and conduct of the legislature by an overruling constitution was an improvement in the science and practice of government reserved to the American States; and at the foundation of this practice lies the right to change the constitution at pleasure-a right which no positive institution can ever take from the people. When they have made a State constitution they have bestowed on the government created by it a certain portion of their power; but the fee simple of their power remains in themselves.**

While we cannot always reason with absolute certainty from civil usage to ecclesiastical, it seems evident to us that this analogy would hold good in relation to the people and preachers of the Methodist Episcopal Church and the constitution under which they are acting.

By correspondence with Judge Lawrence since the General

* Constitutional History of the United States, by George Ticknor Curtis, vol. i, p. 643.