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Decision No. 41

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April 23 1947
In Re: Footnote to Article XXIII Articles of Religion

Digest of Case

The footnote to Article XXIII, Articles of Religion, Discipline 1939, held to be not a constitutional part of the Articles of Religion. It was made a footnote by legislative act only.

Statement of Facts

At a session of the Uniting Conference held in Kansas City, Missouri, May 9, 1939, "the question of the legality of deleting from the new Discipline the footnote to the twenty-third Article of Religion" was referred to Committee on Judiciary. (See Journal of Uniting Conference 1939, P. 357.) At a subsequent session on May 10, 1939, this motion was reconsidered, and the subject matter was referred to the Council of Bishops for their study and to report to General Conference. (See Journal of Uniting Conference 1939, P. 363.) The footnote as it appeared in the 1939 Discipline, P. 45, reads as follows: "As far as it respects civil affairs we believe it the duty of Christians, and especially of all Christian Ministers, to be subject to the supreme authority of the country where they may reside, and to use all laudable means to enjoin obedience to the powers that be; and therefore it is expected that all our Preachers and People, who may be under British or any other Government, will behave themselves as peaceable and orderly subjects." At a meeting of the Council of Bishops in Atlantic City, New Jersey, on February 22, 1946, the following action was taken: "Question: Is further action required concerning footnote to Articles ofReligion? "Answer: We recommend that proper steps be taken to ask the JudicialCouncil for a Declaratory Decision. "The question at issue is: Is said footnote to Article XXIII of theArticles of Religion a part of the Articles of Religion?" The Council of Bishops, by more than the required majority, thereupon appealed the matter to the Judicial Council, thus taking the "proper steps." Under Paragraph 904 of the Discipline of 1944, the Judicial Council is clothed with authority to "determine the constitutionality of any act of the General Conference upon an appeal of a majority of the Council of Bishops," etc., and under Paragraph 914 this authority is extended to include Declaratory Decisions when legislation "appear to be subject to more than one interpretation, or when any Paragraph of the Discipline seems to be of doubtful meaning," etc. It is therefor clear that the Judicial Council has jurisdiction in this matter and I hereby assumes the same. HISTORICAL SURVEY (1) At the session of the General Conference of 1820, the question arose as to the relationship between the Methodist churches in Canad and those in the United States. A series of Resolutions was introduce and adopted, seemingly without much debate, among which was the following, numbered 2: "Resolved, that the following note be inserted in the Discipline under the XXIII Article of our Church, viz. As far as it respects civil affairs, we believe it is the duty of Christians, and especially of al Christian ministers, to be subject to the supreme authority of the country where they may reside, and to use all laudable means to en join obedience to the powers that be; and therefore it is expected that all our preachers and people who may be under the British, or an other government, will behave themselves as peaceable and orderly subjects." (See Minutes of the General Conference, meeting in Baltimore, Md., May 1820, written in longhand and deposited in the library of Drew Theological Seminary.) This footnote, appearing thus in the Discipline for 1820, was continued in every subsequent edition of the Discipline of the forme Methodist Episcopal Church until the Uniting Conference in 1939. (2) The Methodist Protestant Church never inserted such a Note (3) In the case of the former Methodist Episcopal Church, South the matter is more involved. After the separation in 1844, it did no immediately attach any "Note" to the XXIII Article of Religion. A that time it had no work outside the boundaries of the United States and the War between the States, coming soon afterwards, preclude for some time any such undertaking of magnitude. As soon as it was thought feasible, however, this Church began sending missionary to foreign countries and establishing churches. It was not a great while until complaints began to arise among the members of these churches regarding this XXIII Article of Religion, based on the ground that it virtually brought them to the point of declaring allegiance to foreign rulers and thus repudiating their own. These complaints became more and more insistent, and the session of the General Conference of 1906, in Birmingham, Alabama, recommended to the Annual Conferences that they add the following "Note" to the XXIII Article: "It is the duty of all Christians, and especially of all Christian ministers, to observe and obey the laws and commands of the governing or supreme authority of the country of which they are citizens or subjects, or in which they reside, and to use all laudable means to encourage and enjoin obedience to the powers that be." Two things need to be noted: First: The General Conference merely recommended to the Annual Conferencesits adoption, a Resolution immediately prior to this recommendation having been passed inserting certain words in the Paragraph relating to amendments, which among other things, prohibited any initiative upon the part of the General Conference in amending the First Restrictive Rule. Second: The matter of the insertion of the "Note" was considered aConstitutional one. For one reason or another, however, the vote in the Annual Conferences was slow in being taken, but was finally completed in the quadrennium 1918-1922, and adopted by the General Conference of 1922 after every Annual Conference had given a majority vote in its favor. It is now necessary to notice at greater length the Resolution of 1906, above referred to, inserting a certain clause in the Paragraph relating to amendments. The General Conference of 1808 provided that the proposed delegated General Conference "shall have full powers to make rules and regulations for our Church, under the following limitations and restrictions." Then follow the six Restrictive Rules, at the close of which is the following: "Provided, nevertheless, that upon the joint recommendation of all the Annual Conferences, then a majority of two-thirds of the General Conference succeeding shall suffice to alter any of the above restrictions." Thus it made the Annual Conference the unit in voting on all contemplated constitutional changes, which meant that even one Annual Conference could defeat the wishes of the remainder of the Church by giving a negative vote. By the quadrennium of 1828-1832, this had become a "grievous yoke which neither we nor our fathers were able to bear." (Bang's History of the Methodist Episcopal Church, Vol. IV, p. 103.) After several false starts in the General Conference of 1828, the General Conference of 1832 finally completed the work of the preceding quadrennium so as to make the proviso read as follows: "Provided, nevertheless, that upon the concurrent recommendation of three-fourths of all the members of the several Annual Conferences who shall be present and vote on such recommendation, then a majority of two-thirds of the General Conference succeeding shall suffice to alter any of such regulations' excepting the first article." Notice particularly this last preceding clause: "Excepting the first article." It then went on to say: "And also whenever such alteration or alterations shall have first been recommended by two-thirds of the General Conference, so soon as three-fourths of the members of the Annual Conferences shall have concurred, as aforesaid, with such recommendation, such alteration or alterations shall take effect." This language, word for word, remained in the Discipline of the Methodist Episcopal Church until 1900, when it adopted its written Constitution, at which time "two-thirds" was substituted for "three fourths" where the latter word was to be found. In every other respect, especially as regards the phrase "excepting the first article," it remained there until the Uniting Conference in 1939. In the Methodist Episcopal Church, South, it remained exactly as it was adopted in 1832 for seventy-four years. It is perfectly plain that this eliminated the Annual Conference as a constitutional unit and substituted therefor the members of the several Annual Conferences. But in order to insert this "Note" to the XXIII Article of Religion, a Note which it thought a Constitutional matter, the General Conference of the former Methodist Episcopal Church, South, meeting in 1906, passed the following Resolution: "That the Editor of the next edition of the Discipline be directed to insert . . . the following: after the words, 'excepting the First Article': 'Which maybe altered upon the joint recommendation of all the Annual Conferences and a majority of two-thirds of the General Conferences succeeding,' so that the Paragraph shall read as follows: "'Provided, nevertheless, that upon the concurrent recommendation of three-fourths of all the members of the several Annual Conferences, who shall be present and vote on such recommendation, then a majority of two-thirds of the General Conference succeeding shall suffice to alter any of the above restrictions, except the first article,' (and now comes the addition) 'which may be altered upon the joint recommendation of all the Annual Conferences by a majority of two-thirds of the General Conference succeeding.'" The provision of 1832, to which particular attention has been called in a preceding paragraph, in effect in 1906, provided no way of amending the first Restrictive Rule, and this addition was made in order to provide such a way. Thus it attempted to revert, as far as the First Article is concerned, to the rule of 1808, making the Annual Conference the constitutional unit. Without discussing here the wisdom of such a procedure, the fact remains that this change was never submitted to the Annual Conferences-the only way in which it could have become constitutionally effective. It is perfectly clear that the matter was one involving constitutionality, since the method of amending a Constitution is an integral part of the document itself. It is equally clear that the General Conference was not acting in a judicial, but wholly in a legislative capacity, and that therefore the constitutionality of the method by which the footnote was added was not res adjudicate. Under the law of that Church the General Conference had no right to pass upon the constitutionality of its own acts. Strange as it may seem, that right was reserved to the administrative department-the Bishops, and remained with them until the establishment of the Judicial Council in that Church. The action itself, therefore, and all other action, or actions, taken under the misconceived idea of the legality of said action, was null and void, and was so declared by the Judicial Council of that Church in its OPINION ON THE LEGALITY OF THE ADOPTION OF THE PLAN OF UNION. CONCLUSIONS In the light of the above history it seems clear: (1) That the General Conference of 1820 did not regard the "Note" as a Constitutional matter and that the former Methodist Episcopal Church acquiesced in this opinion for the remainder of its history as a separate organization. (2) That though the "Note" passed through the forms demanded by the supposed amended law for Constitutional procedure in the former Methodist Episcopal Church, South, that amendment was itself unconstitutional and the "Note" therefore could be regarded, at the best, as only a non-constitutional pronouncement of General and Annual Conferences. (3) If it should be contended that whatever its status prior to the vote on union, that vote made it not only a part of the Plan of Union but a Constitutional part thereof, it is only necessary to reply: First: That the voters of the former Methodist Episcopal Church certainlyregarded it as non-Constitutional. Second: That those of the former Methodist Episcopal Church, South, adoptedit as a Constitutional matter under an unconstitutional amendment which nullified the action and left it as a mere legislative enactment. In both cases, the vote could not, unless it had been clearly specified, have changed whatever status the "Note" legally occupied, and that status, as shown by the historical survey above taken, was one of non-Constitutionality. Third: The Plan of Union specifically provides (Paragraph 3, 1944Discipline) that: "The Articles of Religion shall be those historically held incommon by the three uniting churches." The Methodist Protestant Church never having had such a footnote clearly same was not "historically held in common by the three uniting churches," and cannot be regarded as an Article of Religion of the United Church.

Decision

In answer, therefore, to the question of the Council of Bishops: "Is saidfootnote to Article XXIII of the Articles of Religion a part of the Articles of Religion?" we reply that it is a legislative, but not a Constitutional part of the Articles of Religion.

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