16 Replies to “1905: The busiest year in American Orthodox history”

1. To ensure its independence from the Russians, Holy Trinity Greek church in New York City was legally incorporated — by an act of the New York State Legislature — as, “The Hellenic Eastern Orthodox Christian Church of New York.”

   The Cathedral’s wed site claims:
   “In fits and starts the fledgling religious community began to grow. Chartered by a special act of the New York State Legislature in 1896. It occupied several locations in lower Manhattan. In 1904 a permanent church building, an Episcopal church of Gothic architecture at 153 East 72nd Street , was purchased. The first service was held on April 3, 1904”
   http://www.thecathedral.goarch.org/vsItemDisplay.dsp&objectID=E9AED050-369E-48B6-BC125D72FB79A659&method=display
   (btw, it seems to claim Greek Anunciations roots as its own on the same site).

   Are there any references to either legislative acts?
   However, why they would do so in 1896 is also easily explained: the NY Times (Nov. 18, 1895) account “For Syrian Worshippers: Orthodox Greek Church Dedicated and Consecrated for Them” (i.e. St. Nicholas in Brooklyn) ends “The services…were the farewell mass of Bishop Nicolas, who leaves for San Francisco today….Bishop Nicholas, at his residence, 207 East Eighteenth Street,….today…will leave for San Francisco and Alaska, and some time during Winter he will visit Brazil to establish churches there.

   Bishop Nicolas is the only Bishop of the Orthodox Russian Church in America, and while he is styled the Bishop of Alaska, he really has jurisdiction throughout the United States. He is a man of marked force of character and executive ability and it is confidently expected that he will be created an Archbishop, and he may reside in this city.”

   Another worrisome aspect would be in the article about the prominent role of Archmandirie Theocletos: “Hitherto the Syrians of this city who were members of the Orthodox Greek Church have been forced to worship in churches where the non-liturgical part of the service was conducted either in Greek or Russian…Bishop Nioclas officiated. He was assisted by Father of Raphael of Damascus, who has come to America to take charge of the Syrian and Arabian Church, on Washington Street, this city: Father Theoclitus of the Greek Church, late tutor of the son of the King of Greece….Besides the Bishop, two others present wore the mitre-the Abbots Raphael and Theoclitus. The latter is to take charge of the church of Galveston, Texas, where there is a large colony of Greeks.”
   http://query.nytimes.com/mem/archive-free/pdf?_r=1&res=9E05E7DA113AE533A2575BC1A9679D94649ED7CF

   Of course, this just underlines the problems for the 1922 GOANSA Charter: it rests on foundations not made in ignorance of the Russian Diocese’s jurisdiction, but in defiance of it. Such things were done in all the Old World Churches and were not tolerated (Macedonia being only the bloodiest example), why should they be allowed in the New World?

2. The only evidence of an 1896 lawsuit I can find is a suit filed by the priest of Annunciation Church, Kallinikos Delveis, against the Society of Athena (which ran the parish). I’m not certain, but I suspect this is connected to nonpayment of salary, or some such thing.

   You should be able to view the 1905 legislation here:

   http://books.google.com/books?id=vymxAAAAIAAJ&pg=PA2120&dq=%22constantine+g.+vlachos%22&as_brr=1#v=snippet&q=%22constantine%20g.%20vlachos%22&f=false

3. Thanks, interesting. EXTREMELY interesting.

   “A further object is to distinguish the said “The Hellenic Eastern Orthodox Church of New York” from the so-called “Greek Church of the Eastern Confession” by which title the church of Russia and the church of Greece in general have been known, although the Greek church has been separated from the Russian since the year eleven hundred, anno domini.”

   The extremely interesting points are that they want to distinguish themselves from not only the Church of Russia, but also the Church of Greece. As both are autocephalous Orthodox Churches, then and now, linked only in the diptychs, it would seem that the “Greek Church of the Eastern Confession” would mean the autocephalous primates in the Orthodox diptychs. So they were creating a body “The Hellenic Eastern Orthodox Church of New York” as a free lance parish, seperate from the diptychs, as there is no mention of the EP, the one who supplied the priest when Holy Trinity split from Anunciation”
   (btw, I wonder even if this act is even constitional: “we are told that the present Moscow Patriarchate is not the true superior church of the American communicants. The vicissitudes of war and revolution which have beset the Moscow Patriarchate since 1917 are said to have resulted in a discontinuity which divests the present Patriarch of his authority over the American church. Both parties to the present controversy agree that the present Patriarch is the legitimately chosen holder of his office, and the account of the proceedings and pronouncements of the American schismatic group so indicates. Even were there doubt about this it is hard to see by what warrant the New York legislature is free to substitute its own judgment as to the validity of Patriarch Alexi’s claim and to disregard acknowledgment of the present Patriarch by his co-equals in the Eastern Confession, the Patriarchs of Constantinople, Alexandria, Antioch, and Jerusalem,…These considerations undermine the validity of the New York legislation in that it enters the domain of religious control barred to the States by the Fourteenth Amendment.” Kedroff v. St. Nicholas Cathedral, 344 U.S. 94 at 125-6)

   We have not such thing in the Orthodox Church: parishes only exist in Dioceses, Dioceses only exist with a bishop, bishops exist only in synods, synods have primates who are commemorated by their co-equals in the dipytchs. Seeking legal recourse to the secular authority (something strictly forbidden by canons IV and VI of the First Ecumenical Council of Nicea I and XII of the Ecumenical Council of Chalcedon, stating that a bishop must be deposed for mere attempt ) to take Holy Trinity out of administration of the Orthdoox Church, makes a nice Protestant parish, but not an Orthodox one.

   How then could Holy Trinity accept the Tomos of 1908 and the authority of Archb. Meletios? The trust’s terms was specifically and explicitely to distinguish it from the Church of Greece, how could it submit to it, as in Watson v. Jones 80 U.S. 679 at 772-4 the US Supreme Court ruled “Individuals may dedicate property by way of trust to the purpose of sustaining and propagating definite religious doctrines, and it is the duty of the court to see that the property so dedicated is not diverted from such trust,” the finding “Where the local congregation is itself a member of a much larger and more important religious organization and is under its government and control and is bound by its orders and judgments, its decisions are final, and binding on legal tribunals” of no avail, as the incorporation specifically distinguishes Holy Trinity from the Orthodox hiearchy in the diptychs and the CoG, and Carrier v. Carrier, 226 N.Y. 114 at 125 established that “The court has jurisdiction to remove a trustee who has violated or threatens to violate his trust.”

   So, besides the canoical problems of the claims of the Tomos of 1908 interring in the Diocese of another Church, the deposed status of Meletios at the time and defrocked status of Bp. Alexander at the time, we have the legal problem that Holy Trinity was legally estopped by its own incorporation to be incorporated by the 1922 charter as the seat of GOANSA’s primate.

   Did any of this come up in the recent arguments over the newly imposed charter?

4. I don’t know the answer to your question, Isa. I don’t think that phrase you quoted above lumps the Russians with the Greeks. I think they’re essentially saying, “The ‘Greek Church,’ refers to the churches of Russia and Greece, even though the two bodies have been separated since 1100.”

   Obviously, they’re wrong about that. I wonder if they might be confusing the Russian Orthodox Church with the Uniates (who were often called Greek Catholics or the Greek Church). I don’t think they’re necessarily distinguishing themselves from the Church of Greece, based on that statement. It is true, though, that they (and other Greek churches in America) viewed themselves as essentially independent of hierarchical authority. I discussed this a good deal in my paper “The Myth of Past Unity.”

5. Looking around, I see what the problem was. From the “General laws of New York containing all amendments to the close of the session of 1899″:
   The Religious Corporation Laws
   Aritcle III
   Special Provisions for the Incorporation and Government of Roman Catholic and Greek Churches-…an unincorporated Christian Orthodox Catholic church of the Eastern Confession, in this state may become incorporated as a church by executing, acknowleding and filing a certificate of incorporation…A certificate of incorporation of an unincorporated Christian Orthodox Catholic church of the eastern confession shall be executed and acknowledged by the envoy extraordinary and minister plenipotentiary, and by the consul-general of Russia to the United States, then acknowledged and received as such by the United States. On filing such certificate such church shall be a corporateion by the name stated in the certificate.
   sect. 51. Government of incorporated Roman Catholic and Greek churches-…The envoy extraordinary and minister plenipoteniary, and the consul-general of Russia to the United States, acknowledged and received as such, and their successors in office shall, by virtue of office, be the trustees of every incorporated Christian Orthodox Catholic church of the Eastern Confession in this state. The trustees of any such church shall have power to fix and change the salary of the rector and his assitant, appointed or commissioned according to the rules and usages of the denomination to which such church belongs.”
   http://books.google.com/books?id=CsYnAAAAYAAJ&printsec=frontcover&source=gbs_v2_summary_r&cad=0#v=onepage&q=Russian&f=false

   It seems that according to the state of New York, there was no Orthodox jurisdictional disunity, at least from October 1, 1895, when the law took effect (sect. 111).

6. Isa, great find. I hadn’t seen this before. Certainly, this is why the Greek church would want to incorporate in a way that explicitly preserved its independence.

7. “Certainly, this is why the Greek church would want to incorporate in a way that explicitly preserved its independence.”

   Exactly the problem: an Orthodox parish does not have independent exist, neither under Orthodox canon nor NY/US law.

   It seems that the closing of Bjerring’s chapel didn’t mean anything to the State of New York, and the statute was left in place. I apologize for length.

   The original statute, from “Laws of the State of New York, Volume 1. (1871) pp. 14-6:

   AN ACT supplementary to the act entitled ” An act to provide for the incorporation of religious societies,” passed April fifth, eighteen hundred and thirteen.

   Passed January 31, 1871; three-fifths being present.

   The People of the State of New York, represented in Senate and Assembly, do enact as follows:

   Section 1. The act entitled “An act to provide for the incorporation of religious societies,” passed April fifth, eighteen hundred and thirteen, is hereby amended by adding thereto the following provisions:

   Incorporation of Greek churches-

   1. It shall be lawful for any church or congregation, of the ” Christian Orthodox Catholic Church of the Eastern Confession,” now or hereafter existing in this State, to be incorporated according to the provisions of this act.

   Duplicate certificate, how made and filed-

   The Envoy Extraordinary and Minister Plenipotentiary of Russia to the United States, and the Consul General of Russia to the United States, then acknowledged and received as such by the government of the United States, may sign a certificate in duplicates, showing the name or title by which they and their successors shall be known and distinguished as a body corporate by virtue of this act, which certificate shall be duly acknowledged or proved, in the same manner as conveyances of real estate; and one of such certificates shall be filed in the office of the Secretary of State and the other in the office of ‘the clerk of the county in which such church may be erected or intended so to be;and thereupon such church or congregation shall be a body corporate, by the name or title expressed in such certificate, and the persons so signing the same shall be the trustees thereof.

   Who to act as trustees-

   The successors in office of such Envoy Extraordinary and Minister Plenipotentiary and Consul General, for the time being acknowledged and received as aforesaid, shall by virtue of their office be the trustees of such church, in place of their predecessors.

   Power of trustees-

   2. The trustees of every such church or congregation, and their successors, shall have all the powers and authority granted to the trustee or trustees of any church, congregation or society, by the fourth section of the act entitled ” An act to provide for the incorporation of religious societies,” passed April fifth, eighteen hundred and thirteen,

   Salaries of pastors-

   and shall also have power to fix or ascertain the salary to be paid to any pastor or assistant pastor of such church appointed or commissioned according to the rules and regulations of such church,

   Real and personal estate of churches-

   but the whole real and personal estate of any such church, exclusive of the church edifice, parsonage and school-houses, together with the land on which the same may be erected, and burying places, shall not exceed the annual value or income of three thousand dollars;

   Statute of wills, how applicable-

   but nothing herein contained shall be held or taken to repeal, alter or impair the effect of chapter three hundred and sixty of the laws of eighteen hundred and sixty.

   Inventory of church property, when and how filed-

   3. The trustees of any church incorporated under this act are required to exhibit, upon oath, to the Supreme Court in the judicial district in which the church is situated, once in three years, an inventory of all the estate, real and personal, belonging to such church, and of the annual income thereof, which inventory shall be filed in the office of the clerk of the county in which such building is situated.

   Re-incorporation of churches after dissolution-

   4. Whenever any church incorporated under this act shall be dissolved, by means of any nonuser or neglect to exercise any of the powers necessary for its preservation or otherwise, the same may be re-incorporated in the mode prescribed in this act, within six years from the date of such dissolution, and thereupon all the property real and personal, belonging to such dissolved corporation, at the time of its dissolution, shall vest in such new corporation.

   Conveyances, made to churches confirmed-

   5. All conveyances to any church incorporated under this act, of any real estate heretofore appropriated to the use of such church or the congregation thereof, or intended so to be, are hereby confirmed and declared valid and effectual,

   Proviso-

   but nothing herein shall affect any suit or proceedings now pending involving the right or title to any property so conveyed.

   Id.-

   § 2. The legislature may at any time modify, alter or repeal this act.
   § 3. This act shall take effect immediately.
   http://books.google.com/books?id=QRuxAAAAIAAJ&pg=PA14&dq=Laws+of+the+state+of+New+York+Passed+January+31,+1871&lr=#v=onepage&q=Laws%20of%20the%20state%20of%20New%20York%20Passed%20January%2031%2C%201871&f=false

   This presents a number of problems.
   1) The incoming Bishop John had come through New York in 1870 on his way meeting the outgoing Bishop Paul in SF, who came to New York and stayed there November 1870 (with a Thanksgiving DL with Fr. Bjerring), purportedly consecrating the Bjerring chapel on the 12th. Given that we know the Russian Church was floating plans on the US in general and New York in particular at the time, and given that the Religious Incorporations Law was being ammended to incorporate “Greek Churches,” with immediate effect, it would seem that the Russians were working with the New Yorkers for something permanent at that time. (on the legal side, the issue of legislative intent).

   2) The Russian Diocese had already been incorporated by the Cession Treaty, and the Cathedral parish was incorporated under the Presidency of the Russian Consul (the Greek Consul being a trustee) at SF, and by the Full Faith and Credit Clause, had status in New York law (the NY Court of Appeals noted in St. Nicholas Cathedral of Russian Orthodox Church v. Kedroff, 302 N.Y. 2 at 20 that in the from the beginning of the controversy (Kedrovsky v. Rojdesvensky 214 A.D. 483, during St. Tikhon’s patriarchate) described “the Russian Orthodox Greek Catholic Church of North America; that it was a religious denomination of about 300 churches with about 300,000 members organized in various unincorporated parishes or bodies throughout North America….introduced in evidence an exhibit which listed deeds of 135 church properties to Bishop Alexander [of the Aleutians [sic] and North America] in Alabama, Alaska, California, Colorado, Connecticut, Illinois, Indiana, Massachusetts, Michigan, Minnesota, New Jersey, New York, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, Texas, Washington and Wisconsin).”).

   As the NY Court of Appeals pointed out in St. Nicholas Cathedral of Russian Orthodox Church v. Kedroff, 302 N.Y. 2 at 4 “Since 1875, the Legislature has provided for the denominational control of church properties (Religious Corporations Law,…). The corporate owner thus holds the property in a trust dedicated to the religious uses of the church.” However, as the court notes at 9, “In 1903, a church was built at 15 East 97th Street in New York City, title to which was held by a corporation, created in 1899 under the Religious Corporations Law of this State and named “Russian Orthodox St. Nicholas Church in New York”…dedicated to the use of the members of the local congregation of the Russian Orthodox Church in New York City established in 1893…” i.e., the Cathedral wasn’t incorporated until 1899, when St. Tikhon was reorganizing the Diocese into Alaska and North America with its see at New York. It would seem that the Russian government, leaving the jurisdiction of its Diocese in Alaska with its ecclesiastical laws, also saw to it that the role that the governor played under Russian sovereignty would now be played by the Consuls.

   On that, as the Dissent (upheld by the US Supreme Court) in St. Nicholas Cathedral of Russian Orthodox Church v. Kedroff, 302 N.Y. 2 noted at 84-5, “as late as 1943, the Legislature was thus legislating as to those churches which were under the government of the Moscow Patriarch. The Governor of New York, after signing the bill, made it clear that he so understood its import. In a speech at Buffalo (see Public Papers of the Governor, 1943, p. 550) Governor Dewey said: “For more than 180 years members of the Greek Church have been on what is now American soil. We find in the records that as long ago as 1763 a native of the Aleutian Islands was converted by a devout and hardy missionary from Russia. Nineteen years later the Holy Synod sent a mission of eight monks to Alaska and in 1794 they established missionary headquarters on the Kodiak Island. Three years later the hierarchy of the Greek Church consecrated a Bishop of Alaska, but he perished at sea before he could ever reach his diocese. The living successor of the reverend prelates who succeeded him is The Most Reverend Metropolitan Benjamin of New York. It is an interesting historic fact, particularly in these days, that his full title is Metropolitan of the Archdiocese of the Aleutian Islands and North America.”” Hence, under NY law, the status/jurisdiction of the Russian Diocese in AK was registered in New York state.

   3) The Greek Church, as seperate from the Russian Diocese, however, had no legal standing: the only parish allegedly not being under the Russian Diocese predating the NY Religious Incorporations Law was Holy Trinity in New Orleans. However, although New Orleans could have incorporated, it seems not to have done so until 1909, hence no basis for Full Faith and Credit. The State of New York had determined in 1872 in Van Buren v. Reformed Church, 62 Barb. 495 that “corporations are not created by acting as such. There must at least be an organization under some existing charter or law.” There was an existing law: the Greek parish refused to comply with it.
   (McKinney’s consolidated laws of New York Annotated, bk. 22 p. 28 http://books.google.ro/books?id=wUQQAAAAYAAJ&pg=PA28&dq=%22Van+Buren+v.+Reformed+Church+of+Ganesvoort+62+Barb.+495#v=onepage&q=&f=false; Btw, for some context of religious incorporation at the time that NY provided for denominatinal control: “Laws relating to religious corporations: A compilation of the statutes of the statutes of the several states in the United States in Relation to the Incorporation and Mantenance of Religious Societies, ” by Rev. Sandford Hunt with an address on laws affecting religious organizations in the state of New York by Hon. Enoch Lewis Fancher, L.L.D.
   http://books.google.ro/books?id=lwoAAAAAYAAJ&printsec=frontcover&source=gbs_v2_summary_r&cad=0#v=onepage&q=&f=false
   American Ecclesiastical law: the law of religious societies, church government and creeds… in the United States Ransom Hebbard Tyler, Counselor at Law (1866) http://books.google.ro/books?id=4nIDAAAAQAAJ&printsec=frontcover&source=gbs_v2_summary_r&cad=0#v=onepage&q=&f=false; and from another angle, The New Schaff-Herzog Encyclopedia of Religious Knowledge, vol. 9, p. 474 http://books.google.ro/books?id=XUr63GYc9dgC&pg=PA474&dq=Herzog+de+facto+corporation+Van+Buren+v.+Reformed+Church&lr=#v=onepage&q=&f=false). As the Greek parishes were acting independently of the EP or CoG’s authority, comity was not available. Hence there was no legal status for recognizing as Orthodox any Church not under the Russian HGS. The Greeks of course had Freedom of religion and association, and could do what they liked: but if they wanted to claim the status of a Greek Orthodox parish, a hiearchal Church, there were already legal consequences to making such a claim.
   3) The statute itself states that “The legislature may at any time modify, alter or repeal this act.” It did not, even when two Greek churches were well known, to judge by the newspapers, to be in New York City, and after the earlier abortive attempt of Fr. Hatherly. The law of 1895 was an act to compile the numerous ammendments since 1813, and in sect. 110, it does repeal the 1871 law, but only to avoid duplication: its terms-including the stipulation of the representative of Russia ex officio a trustee of any Orthodox church incorporated in the state-were incorporated into the body of the law. The Kedroff dissent again indicates the problem at 85-6:”There is no slightest sign that the Legislature intended the later statutes to repeal the earlier. We should not strain to discover a repeal by implication but must read these statutes as harmonious parts of a whole and assume that the Legislature in [1895] knew what it had done in [1871] ( Matter of Cooper, 22 N.Y. 67, 88 [1860], supra; Chase v. Lord, 77 N.Y. 1, 18 [1879]; Matter of Tiffany, 179 N.Y. 455, 457 [1904];…”If by any fair construction, whether strict or liberal, a reasonable field of operation can be found for both acts, that construction should be adopted. In other words, if the old and the new law, by any reasonable interpretation, can stand together, there is no repeal by implication” ( Matter of Tiffany, supra, p. 457).” That the designation of the representatives of Russia as trustees should have stood, as (at 79-80) “we think, is so plain and clear as not to need or permit any construction beyond the patent meaning of its simple words… But if construction were permissible, every known canon of construction would lead to the same result: that the Legislature could not have intended this as a statute of outlawry, ouster, or disestablishment. Words in a statute are to receive their natural and obvious meaning; the general purpose and spirit of the law is to be kept in mind; objectionable consequences, injustice and unreasonableness are to be avoided; acts will not be so construed as to accuse the Legislature of a purpose to do harm (see McKinney’s Cons. Laws of N.Y., Book 1, Statutes [1942 ed.], §§ 94, 96, 141, 143, 146, 148, 151, and cases cited for these propositions). A bad result suggests a wrong construction ( People ex rel. Beaman v. Feitner, 168 N.Y. 360, 366 [1901])…”

   The result here was that the 1905 legislative act incorporated a schismatic group that still claimed communion (otherwise, it wouldn’t be Orthodox, and discussion would be mute) with the superior authority (i.e. the Russian Diocese) already recognized by the state of NY in settled law. As the Disent (upheld by the US Supreme Court) observed in St. Nicholas Cathedral of Russian Orthodox Church v. Kedroff, 302 N.Y. 2 at 73 “The United States Government has never withdrawn recognition of the Russian Orthodox Church and its Patriarch (see Ponce v. Roman Catholic Church, 210 U.S. 296, 318 [1908])” (the last a thorough and interesting study of the status of the Latin church in lands annexed from Spain and France from the Early Church to annexation by the US and organization of US administration, summing up in the principle at 310 “The law thus recognized at the time of the cession the juristic personality and legal status of the church”).
   4) Of course, the Greek Holy Trinity could argue that it was a seperate Church from the Russian Church, but that of course would fail, as its own canons state its communion with the Russian Church, and the known facts that the Greek consuls had gone to Bjerring’s chapel, that a Greek priest served under the Russian Bishop in Galveston (and elsewhere, a fact reported in the NYTimes prior), the Greek parishes in SF, Seattle, Chicago, etc. had grown out of the Dioceses parishes, that St. Tikhon himself had served according to Greek usage (e.g. at Chicago in 1901) would argue that the Orthodox Greek Church was the same as the Orthodox Russian Church, One, Holy, Catholic and Apostolic Church; One “Christian Orthodox Catholic Church of the Eastern Confession.”

   The Orthodox Church as a communion had already entered U.S. law, e.g. as the PA Supreme Court had also decided (Greek Catholic Church v. Orthodox Greek Church, 195 Pa. 425 (1900)) “It is also undisputed and acknowledged by all parties to this controversy that the United Greek Catholic Church is an organization separate and distinct from the Orthodox Greek Catholic Russian Church, and that its doctrines, tenets, rules, etc., are the same as the Roman Catholic Church, except in some matters of discipline, both acknowledging the pope as the ecclesiastical head of the church and acknowledging the authority of the bishops appointed by him. While the Orthodox Greek Catholic Russian Church differs in many respects in its faith, doctrines, tenets, rules, etc., from the United Greek Catholic Church, and acknowledges as its spiritual or ecclesiastical head “the Synod of Russia, consisting of bishops appointed by the czar of Russia.”

   The Greeks would have the problem that they did not differ in its faith, doctrines, tenets, rules, etc. (except in phyletism, which whatever Greek authority-and as a hieararchal Church, they had to have such an authority-the EP and CoG had anathematized in 1872) from the Russian Diocese; the New York government would have the problem that besides the canons (e.g. Ephesus c. 8; and yes, Orthodox canons do get sited in U.S. legal decisions, e.g. the NY Supreme court (ultimately upheld by the US SC) in 1925 in Kedrovsky v. Rojdesvensky, 214 A.D. 483, at 487; Russian Orthodox v. Kedrovsky, 113 Conn. 696. The Supreme Court delved deeply into the canons in Eastern Orthodox Catholic Church v. Adair, 141 N.Y.S.2d 772) mandating that, in virtue of the episcopal consecrations in NY the Russian Diocese was the local Orthodox authority (or was uncanonical, and should be afforded no recognition), its own law of religious incorporation itself explicitely, in plain language, acknowledged as the Orthodox Churchs in New York’s spiritual or ecclesiastical head the representatives of Russia. “The The Hellenic Eastern Orthodox Church of New York,” was, under both under Orthodox canon and US/NY law, schismatic, and canonical and legal consequences were mandated by that status.

   5. The Dissent in St. Nicholas v. Kedroff (302 N.Y. 2) spelled out those consequences, upheld by the U.S. Supreme Court: reviewing the Religious Incorporations Law at 73-4 it stated “On its face there is no indication that it had any purpose other than that of any other special or general law incorporating a religious society or sect or church, that is, “to give an organization for public worship legal rights, and to impose on it legal obligations as a corporate body” ( Van Buren v. Reformed Church of Gansevoort, 62 Barb. 495, 497 [1872]; Petty v. Tooker, 21 N.Y. 267, 271 [1860]). Incorporation of a church is the method by which the municipal law recognizes a church’s present existence. Obviously, such a statute cannot be a device for transferring property from one faction to another, or for subjecting centrally organized churches to the control of seceding groups….The long and the short of it is that this is an ecclesiastical matter, to which, be their answer right or wrong, the ecclesiastic superiors have the final answer. and civil courts, if they should be so unwise as to attempt to supervise their judgments on matters which come within their jurisdiction, would only involve themselves in a sea of uncertainty and doubt, which would do anything but improve either religion or good morals” ( Connitt v. Reformed Prot. Dutch Church of New Prospect, 54 N.Y. 551, 562 [1874]).”

   The New York Legistlature, however, by a special act to relieve the “The Hellenic Eastern Orthodox Church of New York,” whereas the New York Supreme and Superior Courts in Cahill v. Hogan, 180 N.Y. 304, 44 Misc. 360 had already mandated that “When it is proposed to change the general law by some special act or amendment the promoters of such change should see to it that constitutional requirements are strictly observed.” Here, the act for incorporating “The Hellenic Eastern Orthodox Church of New York” while failing to expressing it in the title (unconstitutional, as Cahill found), in its plain language states that “A further object [another similtude to the unconstitionality of Cahill v. Hogan: the NY Constition restricts special/private legislation to a single subject] is to distinguish the said “The Hellenic Eastern Orthodox Church of New York” from the so-called “Greek Church of the Eastern Confession” by which title the church of Russia and the church of Greece in general have been known,” i.e. ammend the Religious Incorporation Law (which, unconstitutionally again, isn’t mentioned: the amendment I assume was incorporated into the latter compilation of the statute) and relieve “The Hellenic Eastern Orthodox Church of New York” of its provisions. The NY Supreme Court (in Cahill) had held similar legislation, for the same reasons, void.

   As the NY Court of Appeals dissent (upheld by the US Supreme Court) would explain (302 N.Y. 2): “one of the most urgent of all the canons of construction is this one: that a statute must be construed, when possible, “in manner which would remove doubt of its constitutionality, and possible danger that it might be used to restrain or burden freedom of worship or freedom of speech and press”…Put another way, the rule is that the construction, if at all possible, must be such as not only to avoid unconstitutionality but to avoid grave doubts thereof ( Matter of Cooper, 22 N.Y. 67, 87, 88 [1860];…” and then asked the question (at 81): “How can there be any dispute but that this…if read so as to take this archbishopric from the control of the central church and give it to appellant’s group, is unconstitutional? Watson v. Jones [1872](supra), does not use the precise word “unconstitutional” but the opinion, contrasting American with old world systems (see p. 728 et seq. of 13 Wall. [U.S.] ), says that “In this country the full and free right to entertain any religious belief, to practice any religious principle” finds expression in the American rule of law that the determinations of the tribunals and judicatories of a centrally organized church are absolutely binding on the civil power. The modern Supreme Court…has cited Watson v. Jones (supra), as authority for the proposition that the First Amendment provides “protection against governmental intrusion on religious liberty” through statutes. It is no answer to this charge of unconstitutionality that there is here in dispute a “property right” only as to the use of a building. “when rights of property are dependent upon the questions of doctrine, discipline or church government, the civil court will treat the determination made in the highest tribunal within the church as controlling” ( Baxter v. McDonnell, 155 N.Y. 83, 101, supra, citing Watson v. Jones, supra; and Connitt v. Reformed Prot. Dutch Church of New Prospect, supra; see Gonzalez v. Archbishop of Manila, 280 U.S. 1, 16)….A faction withdrew from the central control…; plaintiff’s faction here divorced themselves from their supreme hierarch. In Watson v. Jones, the Supreme Court, holding the…controversy to be “a case of division or schism in a church” (p. 717), as is surely true of our case, made the classic statement of law which runs from page 722 to the end of the long opinion. The holding as between the dissenters and the central organization was summarized thus: “They [the schismatics] now deny its authority, denounce its action, and refuse to abide by its judgments. They have first erected themselves into a new organization, and have since joined themselves to another totally different, if not hostile, to the one to which they belonged when the difficulty first began. Under any of the decisions which we have examined, the appellants, in their present position, have no right to the property, or to the use of it, which is the subject of this suit” (p. 734).” Had St. Tikhon sued when he was blocked from the unincorporated church purportedly Orthodox, he, as resident primate, would have prevailed against the unincorporated parish which had no standing under US law.

   However, unlike his successor Met. Jonah, St. Tikhon did not have autocephaly in America, and was not the central organization and supreme hiearch. That was the HGS, whose Ober-Prokurator as the Czar’s minister no doubt was represented by the Czar’s representatives to the U.S. government, by law ex officio trustees of any Orthodox Church in New York. Even if St. Tikhon did not object, he still had to answer to the HGS. Thus the “act to incorporate “The Hellenic Eastern Orthodox Church of New York,” was not only uncanonical under Orthodox canon law, but unconstitution under US/NY law as well.

8. This is important information. Frankly, I think someone needs to write up a concise history of NY legislation impacting the Orthodox Church. I had no idea that there was legislation dating to the 1870s.

   That said, I think this is only tangential to the question of the territory of the Diocese of the Aleutians and Alaska. The diocese pretty clearly did not encompass the whole United States in the 1870s and 1880s, since, if it did, Bjerring’s chapel would have been under it, and it wasn’t. Not until the 1890s — that is, not until after the conversion of the Uniates had begun — did the Aleutian Diocese bishops start claiming jurisdiction over all of America. And, as we’ve talked about, that claim wasn’t made formal and official until 1900 or 1905.

   Basically, I agree with you more generally — that the Russian Orthodox Church had the best claim to jurisdiction in America. That claim wasn’t made explicit until 1900, and I think there is a lot that the Russian Church could have done to better advance its claim, but it did not. I also do not think that Russian claims in 1900 necessarily apply to the OCA in 1970 (or 2009).

9. Notice, by the way, that I have not brought up New Orleans a single time in this whole debate. I don’t consider the New Orleans parish to be especially relevant to the discussion, one way or the other. Also, my aim is not to discredit Russian claims. I realize that the Greek parishes in America were run in a very un-Orthodox manner, but I don’t think that (and even the actions of Metaxakis later) automatically mean that the GOA is somehow illegitimate. These questions about the past are related to our present day issues, but I don’t think we can necessarily draw too close a connection between them, as tempting as it is.

10. “That said, I think this is only tangential to the question of the territory of the Diocese of the Aleutians and Alaska. The diocese pretty clearly did not encompass the whole United States in the 1870s and 1880s, since, if it did, Bjerring’s chapel would have been under it, and it wasn’t.”

    Not necessarily, if it was functioning as a stavropegial institution, which would make sense if it was planned as a metochion. I agree it is not, for the reason you have given as regards the Episcopalians, directly relevant as to the extent of the Alaskan Diocese. It is relevant as to the jurisdciton claims of Russia as a whole, as if it was instituted to become a metochion, it did not do that because the Episcopalians were never recognized as Orthodox, hence by default it still represented the presence of the Russian Orthodox Church, just in a different way than intended: in an Orthodox vacuum, it was jurisdictional. It is only then (or in 1893, just 4 years out of the limit set by statute) that it became directly relevant to the Alaskan Diocese.

    The lower 48 were the frontier of the Alaskan Diocese, then its territory, then its extent. I’m sure we will be returning to your other points.

    “This is important information. Frankly, I think someone needs to write up a concise history of NY legislation impacting the Orthodox Church.”

    Yes, since at the time it functioned much like CA does (or did), a sort of forefront in legisltation that other states follow (e.g. no fault divorce). The surveys of religious incorporation put New York’s statute up front for that reason.

    “Notice, by the way, that I have not brought up New Orleans…”
    I bring it up just so people know I’m not ignoring her. She is in a class by herself, and cannot be lumped with the other Greek parishes. But yes, in the formation of the GOANSA she seems to have been ignored, and for that reason is somewhat irrelevant to the issue, but an argument can be made on it, and there are those who dusted off her claims to make an argument for the Greek version of the North America Orthodox story. I “pick on” the Greeks, because they are the only ones who have and have made a counterargument to the Russian/OCA version.

11. I see a snippet on “The History of the Greek Church in America in Acts and Documents by Paul G. Manolis”
    http://books.google.ro/books?id=Y8g0AAAAMAAJ&dq=Laws+of+the+state+of+New+York+Archdiocse+North+and+South+America&q=corporation+law
    which seems to show that the GOANSA Charter of 1922 was incorporated under Section 15 of the New York Religious Corporations Law. IIRC, Matthew, you have access to that work? Can you confirm my read on the snippet?

    The problem is, that as best as I’ve been able to ascertain so far, section 15 of said law when the charter was “incorporated” read thus:
    [CHAP. 723 Of 1895.]
    The Religious Corporations Law.

    Article I. Provisions applicable to religious corporations generally

    § 15. Property of extinct churches—Such incorporated governing body may decide that a church, parish or society in connection with it or over which it has ecclesiastical jurisdiction, has become extinct, if it has failed for two consecutive years next prior thereto, to maintain religious services according to the discipline, customs and usages of such governing body, or has had less than thirteen resident attending members paying annual pew rent, or making annual contribution towards its support, and may take possession of the temporalities and property belonging to such church, parish or religious society, and manage ; or may, in pursuance of the provisions of law relating to the disposition of real property by religious corporations, sell or dispose of the same and apply the proceeds thereof to any of the purposes to which the property of such governing religious body is devoted, and it shall not divert such property to any other object. The New York Eastern Christian Benevolent and Missionary Society shall be deemed the governing religious body of any extinct or disbanded church of the Christian denomination situated within the bounds of the New York Eastern Christian conference ; and the New York Christian Association, of any other church of the Christian denomination, and any other incorporated conference shall be deemed the governing religious body of any church situated within its bounds. By Christian denomination is meant only the denomination especially termed ” Christian,” in which the Bible is declared to be the only rule of faith, Christian their only name, and Christian character their only test of fellowship, and in which no form of baptism is made a test of Christian character. (As amended by chap. 336 0/1896, § 6; chap. 337 of 1896 and chap: 238 of 1897, § 1.)
    http://books.google.com/books?printsec=frontcover&pg=PA3559&id=CsYnAAAAYAAJ#v=onepage&q=&f=false
    “General laws of New York containing all amendments to the close of 1899” By New York (State)., Edward Le Moyne Heydecker, Vol 3, p. 3559.

    It should have incorporated (and we can see why it did not) under article IIII, section 50.
    “Special Provisions for the Incorporation and Government of Roman Catholic and Greek Churches”

    But back to section 15: what “extinct church” was GOASNA claiming?

    Btw, just in case anyone was wondering, I have no problem going to a GOA parish and communing, and I saw the previous EP when he came here to Chicago (in contrast to the fact that I never would commune at a ROCOR parish (though I’d been to many) until after the reunion with Moscow (I did commune with ROCOR while in Jerusalem).

    1. Isa, I do have a copy of the Manolis collection. I’ll look at it as soon as I’m able. (I’m at work, and it is at home.)

12. I see now that the law was ammended, so it seems that the section 15 above became 16, and this was the section 15 evidently under which the GOANSA was incorporated:

    § 15. Corporations with governing authority over, or advisory relations with, churches or synods, or both.—An unincorporated diocesan convention, presbytery, classis, synod, annual or biennial conference or convention, or other governing or advisory body having jurisdiction over or relations with several or a number of churches or synods, or synods and churches, some or all of which are located in this state, may at a meeting thereof duly held, determine to become incorporated by a designated name, and may by a plurality vote, elect not less than three nor more than fifteen persons to be the first trustees of such corporation. The presiding officer and clerk of such governing or advisory body shall execute and acknowledge a certificate stating that such proceedings were duly taken as herein provided, the name by which such corporation is to be known, and the names of such first trustees. On filing such certificate the members of such governing or advisory body and their successors shall be a corporation by the name stated in the certificate, and the persons named as trustees therein shall be the first trustees thereof.

    The trustees of every incorporated governing or advisory body and their successors shall hold their offices during the pleasure of such body, which may remove them and fill vacancies in accordance with its rules and regulations. Such corporation may hold its meetings and elect its trustees annually or biennially, and may hold its first and any other meetings outside this state if any of the churches or synods governed or advised by it are located outside this state. Such corporation may take, administer and dispose of real and personal property in and outside this state for the benefit of such governing or advisory body or of any parish, congregation, society, church, mission, synod, religious, benevolent, charitable or educational institution existing or acting under or related to it, or of any religious work or activity. Such corporation may elect the members of unincorporated or incorporated boards to carry on particular lines of religious work or activity. Such corporation may have in addition to its by-laws, a constitution; and such constitution may be adopted or amended in such manner as the corporation will determine. (Amended ly L. 1918, ch. 465.)

    http://books.google.com/books?pg=PA1695&dq=Laws+of+the+state+of+new+york+L.+1918,+ch.+465&id=b3o4AAAAIAAJ#v=onepage&q=&f=false

    which makes more sense. Doesn’t remove all problems, but makes more sense.

13. I just came across some tidbits on the Russians and New York Incorporation Law. A NYTimes Dec. 30, 1907 article headlines: “THE RUSSIAN CHURCH.; Russian Ambassador and Consul General Are Incorporators in New York. The letter of U. Marcus and others in this morning’s TIMES upon the subject of their arrest at the instigation of the authorities of the Russian Church while selling newspapers in the vicinity of the church gave me some food for reflection upon the far-reaching extent of a despotic Government’s influence in a country and among a people which boasts of a free press and free speech.”
    http://query.nytimes.com/gst/abstract.html?res=9802E5DD1539E733A25753C3A9649D946697D6CF
    http://query.nytimes.com/mem/archive-free/pdf?_r=1&res=9802E5DD1539E733A25753C3A9649D946697D6CF

    Fr. Ingram Irving followed up in a Jan. 1 1908 letter to the Editor follows up in retort:”THE RUSSIAN CHURCH.; Why the Russian Minister and Cunsul General Acted as Incorporators….Every Sunday the Russian Church prays for the President of the United States…Her congregation was made up of members of the Holy Eastern Orthodox Catholic Church, of which the Russian Church is only a part, from all quarters of the globe. They were only emigrants here to-day and perhaps miles away to-morrow. Two persons at least represented permancy, viz. the Consul General of New York, and the Amabassador (then the Minister) at Washington. Without, therefore, any foreign prejudice the articles of incorporation were drawn up in strict accordance with the laws of the State of New York….let us remember that there are several hundred Holy Eastern churches in the United States, for this Church is growing very fast, (and the greater number of them are supported by great missionary Church of Russia)…From the Russian Cathedral floats on our holidays the American flag…..”
    http://query.nytimes.com/gst/abstract.html?res=9900EEDD173EE233A25752C0A9679C946997D6CF
    http://query.nytimes.com/mem/archive-free/pdf?res=9900EEDD173EE233A25752C0A9679C946997D6CF

    Btw, the arrest of is here:
    http://query.nytimes.com/gst/abstract.html?res=9903E6DA173EE033A25755C2A9649D946697D6CF
    http://query.nytimes.com/mem/archive-free/pdf?res=9903E6DA173EE033A25755C2A9649D946697D6CF

14. Just found a nice summary of something that came to a head in 1905 over the Russian Archdiocese’s jurisdiction and the obligations of the US to it, in which the Cession Treaty and 1st Amendment came up a lot:
    RELIGIOUS LIBERTY IN ALASKAN ISLANDS; Our Treaty with Russia Guarantees Non-Interference. GREEK CHURCH NOW THERE Its Practice of Assessing Natives May Infringe American Rule of Separation of Church and State.
    Congress was recently engaged in framing and enacting a special code of laws for Alaska. The peculiar conditions there existing have been recognized from the start by our Government, and in consequence Alaska has remained longer than any other of our dominions in a state of tutelage as an unorganized Territory.
    http://query.nytimes.com/mem/archive-free/pdf?_r=1&res=9D05E1DF153AE733A25753C1A96F9C946497D6CF
    http://query.nytimes.com/gst/abstract.html?res=9D05E1DF153AE733A25753C1A96F9C946497D6CF
    The import here is that the Russian Archdiocese had standing as a body, a party to whom the US government itself was bound by treaty to fulfil certain obligations.

    I was just looking at a summary in the early 20th century of the original negotiations over the sale of Russian America c. 1858. Once issue the Americans had trouble with was the provision that the Orthodox Church be treated as an entity in its own right, i.e. its properties be retained by the Church, whereas in Russia all Church properties were ipso facto public, and hence should become the property of the US government. The concern was accute because of the 1st Amendment, which at the time applied ONLY to the Federal government (NC, for instance, required its legislators to be Christian, and NH required that they be Protestant), but the Russians made it clear that it was a non-negotiable. That had been a standing policy, as shown by the government chatter after the Czar’s ukaze of 1821 (the cause of the Monroe Doctrine):
    “One point referred to in your letter especially attracted His Majesty’s attention, namely, where you, dear Sir, asserted that in consequence of England’s demands Kussia would be obliged to yield or give up many natives of America who had been converted to Christianity by us. To lose subjects who had voluntarily come under his sceptre, and sons of the Russian Church, would certainly be repugnant to our greathearted Monarch, but from all the information which I have been able to collect it would appear that on the coast below the fifty-fifth degree of latitude, or at any great distance from the sea-coast in the interior, there exists no settlements of the Company or native inhabitants converted to the Greco-Russian faith, and as to any extention of our settlements to the northward I venture to consider it somewhat improbable.”
    http://books.google.com/books?id=oN4BAAAAMAAJ&pg=PA168&dq=sceptre+sons+of+the+Russian+Church&hl=en&ei=lcEqTK2DBJGLnAedwfHVDg&sa=X&oi=book_result&ct=result&resnum=5&ved=0CEMQ6AEwBA#v=onepage&q=sceptre%20sons%20of%20the%20Russian%20Church&f=false

15. Pingback: OrthodoxHistory.org » Blog Archive » Imposters at the Altar: The Case of Stephen Ustvolsky

Comments are closed.