Ecclesiastical Discipline in the Anglican Church in North America: Part 1

Editor's Note: This article series was originally published as a single article in 2010. Due to its subject matter and length I have divided it into several parts and I am reposting it as an article series with a new title, "Ecclesiastical Discipline in the Anglican Church in North America.

By Robin G. Jordan

Introduction. In this fifth article of my series, “Authority, Mission, and the Anglican Church in North America,” I take a close look at the canons of the Anglican Church in North America relating to ecclesiastical discipline. My examination of the disciplinary canons offers insight into how the canons of the ACNA were put together. In a number of places the disciplinary canons borrow provisions from the canons of the Anglican Church of Rwanda and other Anglican bodies. I have whenever possible identified these provisions and the canons of the Anglican body from which they were borrowed.

In examining the disciplinary canons of the ACNA I also describe whenever possible how the Church of England deals with similar matters. I am use as my primary source, Ecclesiastical Law, being a reprint of the title Ecclesiastical Law from Halsbury’s Laws of England. The law stated in this volume is in general that in force in October 1955. While a number of changes may have been made in English ecclesiastical law since that time, Ecclesiastical Law offers a reasonably accurate picture of the Church of England deals with these matters. I believe that the comparison is useful in evaluating the ACNA’s handling of ecclesiastical discipline.

At one time almost all ecclesiastical offences by clergy in the Church of England fell within the cognizance of the Church Discipline Act of 1840. The Clergy Discipline Act of 1892 removed the majority of offences from its sphere of competence and the Incumbents (Discipline) Measures of 1947 to 1953 created a separate disciplinary system for beneficed clergy. The comparison that I will be making will be largely between the provisions of the ACNA disciplinary canons and the provisions of the latter but will include the provisions of the other two Acts where they may be applicable. In the case of bishops, I will be comparing the ACNA disciplinary canons with the Bishops (Retirement) Measure of 1951.

Canon C 17, Of Archbishops, of the Church of England recognizes the Archbishops of Canterbury and York to be metropolitans of their respective provinces and therefore chief bishop over the bishops of their respective provinces. Canon C 17 (2) states:

The archbishop has throughout his province at all times metropolitical jurisdiction, as superintendent of all ecclesiastical matters therein, to correct and supply the defects of other bishops, and, during the time of his metropolitical visitation, jurisdiction as Ordinary, except in places and over persons exempt by law or custom.

Canon C 17 (3) goes on to state:

Such jurisdiction is exercised by the archbishop himself, or by a Vicar- General, official, or other commissary to whom authority in that behalf shall have been formally committed by the archbishop concerned.

Canon C 17 (4) further states:

The archbishop is, within his province, the principal minister, and to belongs the right of confirming the election of every person to a bishopric, of being the chief consecrator at the consecration of every bishop, of receiving such appeals in his provincial court as may be provided by law, of holding metropolitical visitations at times or places limited by law or custom, and of presiding in the Convocation of the province either in person or by such deputy as he may lawfully appoint. In the province of Canterbury, the Bishop of London or, in his absence, the Bishop of Winchester, has the right to be so appointed; and in their absence the archbishop shall appoint some other diocesan bishop of the province. The two archbishops are joint presidents of the General Synod.

The Anglican Church of Australia is divided into provinces. Each province has metropolitan (called an archbishop) who is also a diocesan bishop. The metropolitan of each province hold office as prescribed by Act of Parliament or by the constitution of the province or by ordinance of the provincial synod. During any vacancy in the office or incapacity of the metropolitan of a province, or during his absence from the province for a period exceeding thirty days the senior diocesan bishop of the province by the date of consecration exercises metropolitical authority in the province. The Anglican Church of Australia has a Primate who is elected and holds office as prescribed by canon of the General Synod. He is usually elected from the metropolitans of the Anglican Church of Australia and once elected continues to function as metropolitan of a province and a bishop of a diocese. “During any vacancy in the office or incapacity of the primate or during his absence from Australia for a period exceeding thirty days,” the duties and responsibilities of the Primate under the Constitution of the Anglican Church of Australia are “exercised by the senior metropolitan at the time in Australia able and willing to act, or if there is no metropolitan able and willing to act, then by the senior diocesan bishop at the time in Australia able and willing to act, seniority in every case being determined by the date of consecration.” As the metropolitan of a province of the Anglican Church of Australia the Primate exercises all the rights and performs all the duties of the metropolitan of that province. However, his election as Primate does not give him metropolitical authority over all the archbishops and bishops of the Anglican Church of Australia. He only exercises metropolitical authority over the diocesan and suffragan bishops of his province.

In the Anglican Church of the Province of the Southern Cone of America “metropolitan responsibilities” are exercised collectively by its Provincial Executive Council. Canon 1.7 of Southern Cone’s canons states:

The Metropolitan responsibilities shall be exercised by the Executive Council under the presidency of the Presiding Bishop and whenever such responsibilities are delegated or where Canons so assign responsibility.

Under the provisions of the constitution of the Anglican Church in North America, the Archbishop of the ACNA, while he is primate and archbishop of the province, is not the metropolitan of the province and therefore does not have metropolitical authority. In examining the ACNA disciplinary canons, it is important to not loose sight of this fact. As noted in the fourth article in this series, the canons of the ACNA attempt to arrogate metropolitical authority to the Archbishop in a number of places. This includes Title IV, Ecclesiastical Discipline, as we shall see.

General Provisions. Canon IV.1, On the Nature of Discipline in the Church, is adapted from Canon 29, a canon with the same title, in the canons of the Anglican Church of Rwanda. The Rwandan canons are on the Internet at: http://www.theamia.org/am_cms_media/canonsoftheprovinceofrwanda.pdf The Rwandan Canons and the proposed constitution and canons of the Anglican Mission Province of North America, an earlier proposal for a new North American province drawn by leaders of the then Anglican in Mission in North America, have influenced a number of the provisions of the canons of the Anglican Church in North America.

Canon IV.2, Of Charges against Bishops, Presbyters, or Deacons, is an adaptation of Section 1, Array of Offenses, of Canon 30, Of Offenses against Bishops, Priests, and Deacons, of the Rwandan canons.

Disciplinary Proceedings against Deacons and Presbyters. In regards to holding a deacon or presbyter accountable for misconduct or any other offense specified in Canon IV.2, the bishop with jurisdiction over the deacon or presbyter has discretion to dismiss the accusation or accusations as frivolous or to order an investigation into the matter. Note the order in which Canon IV.3.1 lists the options available to a bishop. If the bishop chooses to dismiss the accusation or accusations as frivolous, those making the accusation or accusations have no further recourse. There is no mechanism for referring the accusation or accusations to an independent panel to review the decision of the bishop and to overrule the bishop’s decision if the panel concludes the matter merits investigation. Considering the number of cases in which not only Roman Catholic bishops but also Anglican bishops have not properly handled accusations against sexually predatory priests and failed to discipline them, such a mechanism is warranted. Alternately decisions regarding whether allegations of misconduct or other offenses specified in Canon IV.2 against a deacon or presbyter merit investigation might be made jointly by the bishop and a board of assessors made up of other clergy and lay persons.

Section 3, Canonical Investigation, of Canon 30 of the Rwandan canons was adapted and used in Canon IV.3.3. In adapting this section the use of a canonical investigator was confined to deacons and presbyters. The procedural protections that the Rwandan canon extended to bishops as well as deacons and presbyters were limited to deacons and presbyters. Canon IV.3.3 states:

1. Each Diocese shall appoint a canonical investigator to ascertain the merit of the accusations and make a recommendation to the diocesan authority as to whether further juridical process should be pursued.

2. (a) No presentment shall be made or conviction had for any offense under Canon IV.2 unless the offense shall have been committed within five years immediately preceding the time of the presentment. Such time may be extended by written permission of the Archbishop.

(b) For any offense covered by Canon IV.2.5, a presentment may also be made at any time within one year after such conviction.

3. The accused shall be entitled to notice of an ongoing investigation and to have the aid of counsel or an agent and may submit his defense in writing. The presenters also may be aided by counsel, and be represented by any agent they may appoint.

4. If it is determined by the diocesan authority that a trial should occur, then a presentment shall be prepared and procedures followed according to the norms of ecclesiastical law.

5. Each Diocese shall have a person (lay or ordained) appointed by the Bishop for the drafting of presentments and the presentation of the same before the diocesan trial court.

6. Each Diocese shall appoint an advisor to assist the Presbyter or Deacon who is the subject of an accusation and his or her counsel or agent. The advisor shall be knowledgeable in canon law and shall be available to advise the Presbyter or Deacon and his or her counsel or agent on issues relating thereto. All such advice as shall be given shall be confidential to the accused and his or her counsel or agent.

Compare the foregoing with Canon 30, Section 3, of the Rwandan canons:

1. Each Diocese and/or the Province shall appoint a canonical investigator to ascertain the worth of the accusations and make a recommendation to the ecclesiastical authorities as to whether further juridical process should be pursued.

2. No presentment shall be made or conviction had for any offense, unless the offense shall have been committed within three years immediately preceding the time of the presentment.

(a) Except that in a case of a conviction in a Civil Court of Record exercising criminal jurisdiction.

(b) In such circumstances a presentment may be made at any time within one year after such conviction notwithstanding five years may have elapsed since the commission of the offense.

3. The accused shall be entitled to have the aid of counsel or an agent and may submit his defense in writing. The presenters also may be aided by counsel, and be represented by any agent they may appoint.

4. If it is assessed by the investigators and the assessors that a trial should occur then a date shall be established and procedures followed according to he norms of ecclesiastical law.

Note that Canon 30, Section 3, of the Rwandan canons applies to bishops as well as deacons and presbyters.

The extension of time in Canon IV.3.3.2(a) appears to have been adapted from Section 2, Limitation of Three Years, of Canon XIV, Of Ecclesiastical Discipline, of the canons of the Church of Nigeria (Anglican Communion):

No original proceedings shall be instituted before any Tribunal of the Church of Nigeria if more than three years have elapsed since the date of the alleged offence, except leave be given for a further extension of time by the Primate under his hand and seal…[my emphasis].

Canon IV.3.4 is adapted from Section 2, Articles of Presentment, of Canon 30 of the Rwandan canons. Canon IV.3.4 states:

1. When, after investigation of an accusation, the diocesan authority has determined that the matter should proceed forward, Articles of Presentment shall be prepared and personally served upon the Presbyter or Deacon against whom the accusation has been made.

2. The Articles of Presentment shall be made in a writing signed by a representative of the diocesan authority, wherein shall be specified all particulars of time, place, and circumstances alleged.

Compare it with Canon 30, Section 2, of the Rwandan canons:

1. The accusation shall be entitled "Articles of Presentment."

2. The Articles of Presentment shall be made in a document signed by the presenters, wherein shall be specified all particulars of time, place, and circumstances alleged by them, along with the name and address of some person, to whom all necessary communications in the cause shall be made as the agent of the presenters.

Note that Canon 30, Section 2 of the Rwandan canons applies to bishops as well as deacons and presbyters. It is a part of the procedural protections that the Rwandan canons extend to all clergy.

The ACNA canons do not give the accused an opportunity to discuss the complaint with the bishop before the bishop determines how he will deal with the complaint—whether he will dismiss the accusation or accusations as frivolous or refer them to a canonical investigator. They only require the accused to be notified of “an ongoing investigation” and not any preliminary investigation into the complaint. He is not given any opportunity to object to the particular canonical investigator assigned to ascertain the merits of the complaint and to make recommendations in regards to the need for further proceedings.

Under English ecclesiastical law if a charge is made against a clergyman alleging his commission of an offence against the laws ecclesiastical that is not within the provision of the Clergy Discipline Act of 1892 or there is scandal or evil report concerning the cleric in respect to his commission of such an offence, proceedings may be initiated against the clergyman under the Church Discipline Act of 1840. The bishop of the diocese in which the offence is alleged to have been committed is empowered, on the application of a complaining party, or if he thinks fit, of his own motion, to issue a commission to five persons, one of whom must be the chancellor or an archdeacon or rural dean of the diocese, to inquire as to the grounds of the charge or report. As used in this Act, the word “bishop” comprehends “archbishop.” The commissioners have power to examine witnesses on oath, or solemn affirmation. Notice of the time and place of the meeting must be given in writing to the accused at least 7 days before the meeting. The accused or his agent may attend and examine any of the witnesses. The proceedings must be in public unless on the special application of the accused the commissioners direct otherwise. When the proceedings, whether public or private have been closed, the commissioners must openly and publicly declare the opinion of the majority as to whether or not there is sufficient prima facie ground for instituting further proceedings. They are also required to transmit to the bishop the depositions and their reports.

The proceedings must be commenced within two years after the commission of the offence, except where proceedings are brought in respect of an offence for which there has been a conviction in the temporal courts, they may be brought against the person convicted at any time within 6 months after the conviction although more than two years have elapsed since the commission of the offence.

Where the commissioners report there is sufficient prima facie ground for proceedings, and the bishop of any diocese within which the accused clerk holds preferment, or the accusing party (if any), thinks fit to proceed, articles are drawn up which together with a copy of the depositions taken by the commissioners must be filed in the diocesan registry. If an accused party thinks fit to proceed, the bishop must allow the case to go on. A copy of the articles must be served forthwith upon the party accused. It is not lawful to proceed upon the articles until after the expiration of 14 days from the date of service. When, however, this period has elapsed the bishop may by writing require the accused either in person or by his agent to appear before him at any place within the diocese and to answer the articles within such time as seems reasonable to the bishop.

Under the provisions of the Clergy Discipline Act of 1892 any clergyman who is convicted by a temporal court of an act which is an ecclesiastical offence, whether it is or is not an offence against morality, or is alleged to have been guilty of any immoral act, conduct, or habit, or an offence against the laws ecclesiastical which is also an offence against morality (but not a question of doctrine or ritual), including acts, conduct and habits proscribed by the Canons Ecclesiastical of 1603, may be prosecuted by any of the parishioners in the parish where he holds preferment, or the bishop of the diocese or a person approved by him, and tried in the consistory court of the diocese. If, however, the complaint against the clergyman appears to the bishop to be too vague or frivolous to justify proceedings he must disallow the prosecution.

A clergyman who holds no preferment may if he resides or is alleged to have committed an offence in England or Wales be prosecuted in the consistory court of the diocese in which he resides or in which the offence is alleged to have been committed as if held preferment in that diocese.

A complaint for an offence must not be made after five years from the date of the offence or of the last of a series of acts alleged as part of the offence, except that a complaint may be made within two years after a conviction by a temporal court becomes conclusive.

Under the provisions of the Incumbents (Discipline) Measures, 1947 to 1953, any person appointed for the purpose for each occasion by the bishop, a churchwarden of any a parish in which the incumbent has a cure of souls, the patron of any benefice held by the incumbent, and any three communicants of 21 years of age and upwards on the electoral role of any parish where the incumbent has a cure of souls may institute proceedings against the incumbent of any benefice in respect to conduct unbecoming the character of a clerk in holy orders, or serious, persistent or continuous neglect of duty, whether or not cognizable under the provisions of the Clergy Discipline Act of 1892 or any other Act or Measure. Any of these persons wishing to institute proceedings against an incumbent must in the first instance make a complaint in writing to the bishop.

The bishop has the option of determining whether he should deal with a complaint satisfactorily without recourse to disciplinary proceedings. He is required to give the accused an opportunity to discuss the complaint with him. If after this interview, he is of the opinion that the ministerial committee of the diocese should consider the matter, he may refer the complaint to the ministerial committee and must inform the accused of the names of its ordinary and reserve members. The accused is given a 7-day period within which he can state his written objection to one or more members. If the bishop approves the reasons for the objection, he may disqualify the member or members from serving on that occasion.

The ministerial committee of a diocese consists of twelve clerks in holy orders who are elected by the clerks beneficed, or licensed under seal to officiate, in the diocese from among themselves. None of these clerks may be an archdeacon. Elections are held every three years according to the principles of proportional representation, according to rules approved by the archbishop of the province. The candidates who obtain the six highest places are ordinary members of the committee. The next six are reserve members who may be nominated to take the place of an ordinary member who vacates his office or is unable or unwilling to act in a particular case. Everything that the committee is empowered to do is done by the six ordinary members or such reserve members who may be nominated. Five of these members are a quorum. Except as otherwise provided every question must be decided by a majority of votes, of those present, the chairman, who is elected by the members of the committee, having a casting vote. All proceedings at any meeting of the committee must be held in private. The committee has no power to administer oaths or to compel the production of documents or attendance of witnesses.

When the bishop refers a complaint to the ministerial committee, it must consider it and invite the incumbent against whom the complaint has been made and the person or persons who made the complaint to confer with it, either separately or together. After such conference or reasonable opportunity for holding it the ministerial committee must in writing either inform the bishop, the person or persons who made the complaint, and the incumbent against whom the complaint was made that in its opinion there is nothing in the complaint which would justify further proceedings or request the complainant or complainants to specify his or their charges in the required manner for their trial by a special court and notify the incumbent that such request has been made.

The charges are specified in a written statement called the “information” that must state that the incumbent is charged with one or more of the following offenses: conduct unbecoming the character of a clerk in holy orders, serious neglect of duty, persistent neglect of duty; continuous neglect of duty. In respect of each offense the information must state with sufficient particularity the facts relied on in support of the charge.

Where a clerk is accused of heresy, the articles of the charge must distinctly state the obnoxious opinions and the exact terms in which he has uttered or published them.

If the person or persons who made the complaint within one month so specifies the charges, the committee must consider them, and if in its opinion the charges should be tried by a special court, must send a copy of the charges to the bishop with the recommendation that the charges be dealt with by a special court. This recommendation cannot be made unless at least four members of the committee have voted in favor of it. Copies of the report made to the bishop must be sent by the committee to the accused and the accuser or accusers at the same time as the report is sent to the bishop.

All meetings of the ministerial committee must be held outside the parish where the parish where the accused is the incumbent. Any meeting to which the accused and his accuser or accusers are invited, either may, if he or they so desire, be assisted or represented by a friend or adviser.

Within 15 days after the accused receives the report of the committee, the accused must deliver to the bishop his answer to the charges. The bishop has discretion to extend this period. Within 15 days following the receipt of the answer of the accused to the charges, the bishop may give the accuser or accusers and the accused notice of his attention to refer the charges to a special court.

In the event the charges are referred by the bishop to a special court, the bishop must authorize the complainant, or, with the consent of the complainant, any other person or persons, to conduct the proceedings as promoters.

Within 15 days of the date of the service of the bishop’s intention to refer the complaint to a special court, the accused may in writing request the bishop himself deal with the charges.

If the bishop, after consultation with the complainant or complainants, is willing to deal with the charges himself he must not constitute a special court. After he has given the accuser or accusers and the accused an opportunity to confer with him, separately or together, and after he has considered the charges in person, he must decide whether any of the charges have been admitted or proved. The proceedings are private and informal and conducted in such manner as the bishop thinks fit.

What is noticeable about these proceedings is that they involve some form of the jury in the investigation of the complaint or report of misconduct and in the determination of probable cause, a result of the influence of English common law and jurisprudence with its presumption of innocence until proven guilty. On the other hand, Rwandan disciplinary proceedings employ a canonical investigator reflecting the influence of the Code Napoleon and French jurisprudence with its investigating magistrate and its presumption of guilt until proven innocent. Rwanda is a former French African colony. In the investigative phase of the disciplinary proceedings against deacons and presbyters the ACNA, in adopting the use of a canonical investigator, has abandoned its English heritage for a French one [See End-Note.].

End-Note: Since I wrote this article, I completed an extensive assessment of the Rwandan canons, identifying the sources of doctrine, language, norms, and principles of the Rwandan canons. They are largely if not entirely the work of Anglican Mission Canon Kevin Francis Donlon, who also served on the Common Cause Governance Task Force that drew up the ACNA canons. They are heavily indebted to the Roman Catholic Church's Code of Canon Law (2008). The use of a canonical investigator is a Roman Catholic practice. See Canon 1428 and Canon 1717. It is noteworthy that the Code Napoleon and French jurisprudence is based upon ancient Roman law, as are the canons of the Roman Catholic Church. I was not far wrong in my conclusion: the Anglican Church of Rwanda had abandoned its Anglican heritage for a Roman Catholic one. The same may be said of the Anglican Church in North America where it has borrowed from the Roman Catholic Church's canons--either directly or by the way of the Rwandan canons.