Ecclesiastical Discipline in the Anglican Church in North America: Part 3

Read Part 1 and Part 2.

By Robin G. Jordan

Courts for the Trial of Deacons and Presbyters. The influence of the Rwandan canons can be seen in the provisions of the canons establishing diocesan courts for the trial of clergy other than bishops.

Canon IV.5.1 states:

1. In each Diocese there shall be an ecclesiastical Trial Court for the trial of any Presbyter or Deacon subject to the jurisdiction of that Diocese.

2. It shall be the duty of each Diocese to provide by canon for the establishment of such court and the mode of conducting trials in the same.

3. In case of conviction by the Trial Court, the Bishop shall not proceed to sentence the accused before the expiration of thirty days after he shall have been served with notice of the decision of the court, nor in case an appeal is taken shall sentence be pronounced pending the hearing and determination thereof.

Compare the foregoing with Section 1, Courts for a Trial of a Presbyter or Deacon, and Section 3, Sentence and Appeal, of Canon 31, Of Courts, Membership, and Procedure, of the Rwandan canons:

Section 1 - Courts for the Trial of a Presbyter or Deacon
1. In each diocese or missionary district, there shall be an Ecclesiastical Court for the trial of any priest or deacon thereof.
2. It shall be the duty of each diocese/missionary jurisdiction to provide by canon for the establishment of such court and the mode of conducting trials in the same.

Section 3 - Sentence and Appeal
In case of conviction by the Trial Court, the Bishop shall not proceed to sentence the accused before the expiration of thirty days after he shall have been served with notice of the decision of the court, nor in case an appeal is taken shall sentence be pronounced pending the hearing and determination thereof.

At the same time, the influence of the canons of the Protestant Church USA as revised through 1976 appear to have influenced the Rwandan canons. Compare the foregoing with Section 1 and 2 of Canon 55, Of Courts, Their Membership and Procedure.

Sec. 1. In each Diocese and Missionary District there shall be an Ecclesiastical Court for the trial of any Presbyter or Deacon thereof, and it shall be the duty of each Diocese and Missionary District to provide by Canon for the establishment of such Court and the mode of conducting trials in the same.

Sec. 2. In case of conviction by the Trial Court, the Bishop shall not proceed to sentence the accused before the expiration of thirty days, after he shall have been served with notice of the decision of the Court in the manner specified in Canon 54, Sec.3, nor in case an appeal is taken shall sentence be pronounced pending the hearing and determination thereof.

Note that the division of the ACNA adaptation of these two sections follows that of the Rwandan adaptation.

Under English ecclesiastical law, under the provisions of the Church Discipline Act, 1840, if the accused or his agent appears before the bishop in response to the citation to appear and admits the truth of the articles served upon the accused, the bishop must pronounce sentence without delay. If, however, the accused refuses or neglects to appear and answer the articles or makes any answer other than an unqualified admission of their truth the bishop with the assistance of three assessors may hear the cause, determine it, and pronounce sentence. The assessors are nominated by the bishop; one must have legal and another ecclesiastical qualification.

As an alternative course, which, if the charge is not admitted, is, in practice, almost always adopted, the bishop of any diocese in which the clerk holds preferment, or if he holds no preferment, the bishop of the diocese within which the offence is alleged to have been committed, may either in the first instance, or after the commissioners have reported that there is prima facie ground for instituting proceedings, and before the articles are filed but not afterwards, send the case by letters of request to the provincial court to be there heard and determined.

In the Church of England every archbishop and bishop has a court for the trial of ecclesiastical causes within his diocese, called the consistory court, which is held by the chancellor as his official principal, or judge, in his cathedral church or elsewhere in the diocese. The name of the consistory court is derived from the time when the bishop presided in it and had some of his clergy as assessors and assistants. In the diocese of Canterbury, the official principal is called the commissary, and the court is the commissary court.

The chancellor acts in the court as an ordinary or independent judge, according to ecclesiastical law, uncontrolled by the bishop, and with no special instructions from him. His powers are conferred by the letters patent of his appointment, in which the jurisdiction delegated by the bishop to him is specifically set out. In some letters patent the right is reserved to the bishop to sit in court to hear certain cases. There is no appeal from the chancellor to the bishop.

The processes of the consistory courts generally run in the name of the bishop of the diocese, but are issued under the chancellor’s seal. When the processes do not run in the bishop’s name, they run in the chancellor’s name as the official principal of the bishop, and are also issued under the chancellor’s seal.

The chancellor, as a judge, being independent of the bishop, may hear and determine in the consistory court a cause in which the bishop is himself interested.

Cases under the Clergy Discipline Act, 1892, may be tried in consistory court before the chancellor or before a deputy-chancellor appointed by the bishop. The deputy-chancellor must be a barrister of not less than seven years’ standing or the holder of a judicial appointment. If any question of fact (other than the fact of the conviction of the defendant by a temporal court is to be determined, and either party so requires, five assessors chosen in the prescribed manner must be members of the court for deciding the question. The decision on the question must either be the unanimous decision of the assessors or that of the chancellor and at least of majority of them. The chancellor alone decides questions of law and of costs. If no decision is arrived at, a retrial with different assessors, is to take place at the desire of either party as soon as possible.

Assessors are elected every three years, three by the members of the cathedral church of the diocese from their own number, four by the beneficed clergy of each archdeaconry from their number, and five from the justices of the county by the court of quarter sessions of each county wholly in the diocese and of such of the counties partly in the diocese as prescribed by rules under the Clergy Discipline Act, 1892. The consent of an assessor to serve must be obtained before he is elected. If an assessor ceases to be one of the body from whom he is elected, or resigns or dies or becomes incapable of acting, the chancellor may declare a vacancy, and thereupon the vacancy may be filled by another election.

When the presence of assessors is required, three clergymen and two laymen are chosen by ballot, that is by lot-drawing, out of the elected assessors and those chosen are bound to attend when required. If any one fails to attend without reasonable excuse, he is disqualified from acting or being again elected as an assessor. The chancellor must declare a vacancy, which must be filled by a new election.

If any assessor is objected to by either party on grounds approved by the chancellor, he is discharged from serving. If for any reason the requisite number of assessors is not obtained before the trial, the chancellor, if there is time, must cause a clergyman or layman, as the case may require, to be chosen from the list of assessors by another ballot. If there is not time, the chancellor must appoint some clergyman or layman, as the case may require, who is willing to serve and is not objected by either party on grounds deemed sufficient by the chancellor, to make up the full number of five assessors.

The prosecutor must lodge a complaint with the registrar of the diocese. The complaint is lodged in duplicate and a fee is paid. The registrar may require evidence that a prosecutor who prosecutes as a parishioner or a person approved by the bishop is such. Charges that are not in the complaint are not entertained at the trial. The proceedings begin when the complaint is served on the defendant. If the prosecutor is not the bishop, the registrar must submit the complaint to the bishop. Unless the bishop signifies a decision that the complaint is too vague or frivolous, the registrar serves the complaint and the defendant must lodge his answer within 10 clear days of service. Answers may be lodged out of time with leave. In general time can be extended by the chancellor. If the complaint is not personally served the defendant may enter an appearance out of time but before trial by lodging notice, but he may be at risk of costs. An interval of clear days is reckoned exclusively of both the first and the last day. Charges are confessed if an answer is not lodged, though if the complaint has not been served and the defendant has not appeared the charges must be proved. If the defendant appears at the trial but has not previously appeared and shows reasonable cause for non-appearance, the trial must be adjourned unless the defendant consents to immediate trial. A defendant may admit or not deny charges in his answer and may consent to the bishop’s pronouncing sentence. Admitted charges need not be proved. If the bishop pronounces sentence, no further trial is needed. If all the charges are not so disposed of, a day for the trial is fixed. Application may be made for a postponement. An answer may be amended by leave before or at the trial, and a complaint may be amended by leave at the trial. Procedural applications are made by lodging application with the registrar. A prosecutor may be allowed to withdraw a prosecution.

If the defendant cannot be found, the prosecutor may lodge an application with the registrar to allow the prosecution to be proceeded with. The registrar must submit the application to the chancellor, who, if satisfied that the prosecution should be proceeded with, must so order and make such order for substituted service as he thinks fit. The registrar must notify the prosecutor of the chancellor’s decision.

Subject to the provisions of the Clergy Discipline Act, 1892, the chancellor fixes the place for holding the consistory court, having regard to the convenience of witnesses and those interested in the case. In this regard he may change the place of trial. Due notification must be given by the registrar to the prosecutor and the defendant.

Where at a trial no decision is arrived at and either party desires a retrial, that party nust lodge an application with the registrar not more than 21 clear days after the trial, The registrar must submit the application to the chancellor, who must fix a time and place for the retrial and cause 10 clear days’ notice to be given to the prosecutor and the defendant. Unless the prosecutor and defendant both give written notice to the registrar that they consent to retrial by the chancellor without assessors, the registrar must choose assessors excluding those who sat on the former trial.

The chancellor may allow either party to produce evidence on a retrial not produced at the former trial. Provisions of Clergy Discipline Rules, 1892, applicable to a trial also apply to a retrial.

The prosecutor may at any stage be ordered to give security for costs unless the offence alleged is one of which the clergyman has been convicted by a temporal court. Where a prosecutor has been ordered to give such security, subject to an order of the registrar or chancellor, no trial can be held and no further proceedings taken in the prosecution until such security has been given.

Costs of and incident to any proceeding are in the discretion of the chancellor and, in the absence of any direction by him follow the event of the trial, or, in the case of proceedings as to disobedience to sentence, that is, the event of those proceedings. The Clergy Discipline Rules, 1892, make provision for the recovery of costs through the county court or High Court as the case may be.

For the purpose of inquiring into and reporting to the bishop upon charges made against an incumbent under the Incumbents (Discipline) Measure, 1947, where the bishop does not himself investigate the them, the charges are referred by the bishop to a special court. The special court consists of five persons, the president being the chancellor of the diocese or a barrister of not less than ten years standing nominated by the chancellor to the bishop. Of the other four members, two must be members of the clergy chosen by rota from a panel of not less than six elected by the clerical members of the diocesan conference and the remaining two must be lay persons similarly chosen from a panel of not less than six elected by the lay members of the diocesan conference. It is not necessary that the persons so elected should be members of the chamber of the diocesan conference that elects them. No member or reserve member of the ministerial committee of the diocese is eligible to serve on the panel of members of the clergy. Persons elected to serve on either panel hold office for five years and are eligible for re-election.

Subject to special rules the proceedings must be conducted in accordance so far as may be with the practice of the High Court of Justice, and the court has the same power of administering oaths and of requiring the production of documents as the High Court. Proceedings must be public except that the court of its own motion or at the request of either party may direct any part of the evidence shall be heard in private. The whole of the proceeding may be held in private if both parties so request and the court so directs. The decision of the court is delivered by the president and is that of a majority of its members. It states what charges, if any, have been admitted by or proved against the incumbent, and the opinion of the court as to the gravity or otherwise of those charges.

Charges made against deans and provosts of cathedral churches, archdeacons, canons and prebendaries, stipendiary and otherwise, and clerks in holy orders holding any other office of freehold tenure, not being parochial benefices, excluding holders of office in royal peculiar, members of the dean and Chapter of the Cathedral Church of Christ in Oxford and lay canons, that the bishop does not deal with personally are also referred to the special court. If a member of the cathedral chapter to which the case in question was referred for consideration by the bishop on receiving the complaint is a member of the panel of clerks in holy orders the choice by rota of the clerical members of the special court is made as if that member was not included in the panel. The procedure of the court in relation to hearing the charges against such dignitaries are the same as in the case of incumbents.

The Court for the Trial of Bishops. Under the provisions of Canon IV.5.2 the Provincial Council elects the members and alternate members of the Court for Trials of Bishops. The bishops on the Council elect the three bishops on the Trial Court and their three alternates; the presbyters on the Council, the two presbyters on the Court and their two alternates; and the lay representatives on the Council elect the two laypersons on the Court and their two alternates. The ratio of clergy on the Court for Trials of Bishops to laity is 5 to 2. The senior bishop by the date of consecration is the president of the Court. The Archbishop appoints the Court’s legal advisor and the prosecutor.

The composition of this court and method by which the members are elected is an adaptation of Canon IV.5.2 of the canons of the Episcopal Church as revised through 2006:

Sec. 2. The Court for the Trial of a Bishop shall consist of five Bishops of this Church, two Priests, and two confirmed adult lay communicants of this Church in good standing. Five Bishops shall be elected by the House of Bishops at each regular meeting of General Convention, to serve until the adjournment of the next regular meeting of General Convention. Two Priests and two confirmed adult lay communicants of this Church in good standing shall be elected by the House of Deputies at each regular meeting of General Convention, to serve until the adjournment of the next regular meeting of General Convention.

The ACNA canons differ from the TEC canons in that they do not create a separate court for the trial of a bishop for an offense of doctrine but try bishops for doctrinal offenses before the same court as they would be tried for non-doctrinal offenses.

Canon IV.5.6 of the TEC canons as revised through 2006 require each court for a trial of a bishop to elect a presiding judge who holds office until the expiration of the term for which the court was chosen. Canon IV.5.2.3, of the ACNA canons, which designates the senior bishop by date of consecration as the president of court, however, is based upon the provision for filling a vacancy in the office of presiding judge when the TEC court for the trial of a bishop is not in session—Canon IV.5.7:

Sec. 7. When a Court is not in session, if there is a vacancy in the office of the Presiding Judge, the Bishop who is senior by consecration shall perform the duties of the office of Presiding Judge.

With the clergy dominating the Court, a bishop acting as its president, and the Archbishop appointing its legal advisor and the prosecutor, the Trial Court for Bishops does appear to favor the accused. At the same time the Archbishop can influence the verdict through his choice of legal advisor and prosecutor. The canons do not specify the term of office of the legal advisor and the prosecutor or any of the other conditions of their appointment and are open to the interpretation that a different legal adviser and prosecutor may be appointed for each trial. The accused is not guaranteed the right to challenge the members of the court, the legal advisor or the prosecutor. The canons do not specify the reasons for which a member of the court must recuse himself. It is possible for the members of the court to not be impartial in their judgment of the guilt of the accused. The canons make no provision for the suspension or removal of members of the Court or their alternates. They make no provision for the removal and replacement of the legal advisor or the prosecutor.

The Court of Extraordinary Jurisdiction. Canon IV.5.3 (1) create a Court of Extraordinary Jurisdiction that can try clergy canonically attached to other Anglican provinces or dioceses and overseen by bishops of the ACNA in such cases where these provinces and dioceses have waived their jurisdiction in favor of the Court of Extraordinary Jurisdiction. This court may also try clergy who are amenable to presentment under the provisions of the canons and whose own diocese does not have a trial court. The bishop under whose authority the accused serves may refer cases to the court. The members of this court—three presbyters, three laypersons, and one bishop—are appointed by the Archbishop. The ratio of clergy on the court to clergy is 4 to 3. The members of the court elect its president. The archbishop appoints the legal adviser to the court and the prosecutor.

The composition of the Court of Extraordinary Jurisdiction appears to be based upon the composition of the Courts of Review of the trial of a Presbyter or Deacon prescribed by Section 3 of Canon 55 of the PECUSA as revised through 1976:

Sec. 3. In each of the Provinces there shall be a Court of Review of the trial of a Presbyter or deacon, which shall be composed of a Bishop therein, three Presbyters canonically resident in one or other of the Dioceses or of the Missionary Districts within the Province, and three lay communicants of the Church having domicile in the Province….

The method by which the members of the court are appointed appears to be an adaptation of Section 5 of Canon 31 of the Rwandan canons.

Section 5 - Nomination of Judges
1. The judges of this Court of Review shall be nominated by the Primate or his delegate and confirmed by the Provincial Synod and shall serve until the next Synod and until their successors shall have been appointed and confirmed.
2. The bishop mentioned in Section 4 shall be the Presiding Officer of the Court of Review.

This appears to be an adaptation of Section 4 of Canon 55 of the PECUSA. In the latter the judges of the Court of Review are elected every three years by the Provincial Synod after the regular meeting of the General Convention. The bishop elected by the synod is the presiding officer of the court. In the Rwandan adaptation the members of the court are nominated by the Primate or his delegate and confirmed by the Provincial Synod. They serve until the next Synod and until their successors are appointed and confirmed. The bishop on the court is the presiding officer of the court. In the ACNA adaptation of the Rwandan adaptation the Archbishop appoints the members of the court. There is no confirmation process involving the Provincial Council or the Provincial Assembly or even the Executive Committee or the College of Bishops. The members of the court elect their presiding officer.

Section 4 referred to in Section 5 of Canon 31 of the Rwandan canons is adapted from Section 3 of Canon 55 of the PECUSA canons as revised through 1976, as can be seen by a comparison of the two sections. In the Rwandan adaptation the number of presbyters and lay persons on the court is reduced.

Section 4 - Court of Review
There shall be a Court of Review of the trial of a priest or deacon, which shall be composed of a bishop, two priests, and two lay communicants of the Church vested with jurisdiction to hear and determine appeals from decisions of trial courts in dioceses and missionary districts on the trial of a priest or deacon.

The provision for the members of the Court of Extraordinary Jurisdiction to elect the president of the court appears to have been adapted from Canon IV.5.6 of the Episcopal Church’s canons as revised through 2006:

Sec. 6. Each Court shall from time to time elect from its own membership a Presiding Judge, who shall hold office until the expiration of the term for which chosen. If in any proceeding before a Court the Presiding Judge is disqualified or is for any cause unable to act, that Court shall elect from its members a Presiding Judge pro tempore.

With the Archbishop appointing the members of the court, the clergy dominating the Court, and the Archbishop appointing its legal advisor and the prosecutor, the Court of Extraordinary Jurisdiction does appear to favor the accused. At the same time the Archbishop can influence the verdict through his choice of members of the court, as well as the legal advisor and prosecutor. The canons do not state that the Court of Extraordinary Jurisdiction is a standing court. The canons do not specify how long the members of the court serve or whether they serve at the Archbishop’s pleasure. The canons are open to the interpretation that the Archbishop appoints new members of the court for each case. The accused is not guaranteed the right to challenge the members of the court, the legal advisor or the prosecutor. The canons do not specify the reasons for which a member of the court must recuse himself or what happens in the event a member of the court does recuse himself. It is possible for the members of the court to not be impartial in their judgment of the guilt of the accused. The canons make no provision for the removal and replacement of members of the court or the filling of casual vacancies on the court. They make no provision for the removal and replacement of the legal advisor or the prosecutor. As we have seen elsewhere in the canons, critical details are omitted.

The Provincial Tribunal. Canon IV.5.4 establishes a Provincial Tribunal as required by the constitution, and prescribe its jurisdiction. The Provincial Tribunal consists of seven members who are appointed by the Provincial Council. The canons do not specify the manner of their appointment. This means that the Council might establish a nominations committee to recommend suitable members of the Provincial Tribunal for the appointment of the Council, it might establish a panel of nominees to which the judicatories and sub-provincial jurisdictions of the ACNA could make nominations and from which the Council would fill vacancies on the court, it could put names in a hat and draw out the names of seven people and appoint them to the court, or it could delegate the nomination of suitable candidates to its presiding officer, the Archbishop, and appoint whomever he nominates. There are a number of ways that the Council might appoint the Provincial Tribunal. Due to the importance of the Provincial Tribunal as a court of review in disciplinary proceedings and a court of original jurisdiction in matters relating to the interpretation of the constitution and canons, the settlement of disputes between judicatories, and the issuance of non-binding advisory opinions upon issues the “College of Bishops, the Provincial Council, or the Provincial Assembly” submit to it, it is surprising that the method of appointment was not prescribed by canon.

Canon IV.5.4 requires that at least two members of the Provincial Tribunal must be bishops and that the senior bishop by date of consecration shall serve as the president of the court. The second of these two requirements that designates the senior bishop by date of consecration as the president of court, however, is based upon Canon IV.5.7 of the Episcopal Church’s canons—a provision for filling a vacancy in the office of presiding judge when the TEC court for the trial of a bishop is not in session.

Canon IV.5.4 also requires that at least two members must “be lawyers, knowledgeable in canon and ecclesiastical law.” This requirement is an adaptation of a clause in Section 3 of Canon 55 of the PECUSA canons, which establishes the constitution of the courts of review for the trial of a presbyter or deacon. This clause, referring to the three lay members of the review court, states:

…two at least of said Lay communicants to be men learned in the law.

Canon IV.5.4, however, does not require the lawyers on the Provincial Tribunal to be lay persons. Since they must be “knowledgeable in canon and ecclesiastical law,” it is highly unlikely that they would be lay persons.

Beyond complying with these three requirements the Provincial Council has considerable discretion in determining the composition and organization of the Provincial Tribunal. The canons do not specify how long the members of the court serve or whether they serve at the Council’s pleasure. The accused is not guaranteed the right to challenge the members of the court, the legal advisor or the prosecutor. The canons do not specify the reasons for which a member of the court must recuse himself or what happens in the event a member of the court does recuse himself. It is possible for the members of the court to not be impartial in their hearing of an appeal in a disciplinary case or another matter before the court. The canons make no provision for the removal and replacement of members of the court or the filling of casual vacancies on the court.

Under the provisions of Canon IV.5.4 the Provincial Tribunal could be comprised exclusively of bishops or bishops and other clergy, provided the two canonical requirements of at least two bishop and at least two canon lawyers are met. The canons guarantee no lay representation on the Provincial Tribunal. The two canon lawyers can be bishops or other clergy. A Provincial Tribunal composed of bishops or bishops and other clergy is likely to favor the episcopate and the clergy in its judgments related to the interpretation of the constitution and canons or its non-binding advisory opinions on issues submitted to it. It is doubtful that the cause of the laity would receive a fair and unbiased hearing.

Since Canon IV.5.4 does not specify the term of office of the members of the Provincial Tribunal, it is possible for the Provincial Court to pack the Provincial Tribunal with judges who will rule in favor of its interpretation of the constitution and canons and issue non-binding advisory opinions that take its position on issues submitted to the Tribunal.

In my study of constitutions and canons of Anglican bodies I have run across appellate bodies like the Supreme Court of Appeals of the Anglican Church of Canada, the composition of which varies with the type of case that it is hearing. However, I have encountered nothing like the Provincial Tribunal of the ACNA in which the appointing authority is given the kind of discretion in who it may appoint to the appellate body, how it may appoint them, and how long it may appoint them, as Canon IV.5.4 gives to the Provincial Council. The Provincial Tribunal, as it is constituted under the provisions of Canon IV.5.4 exhibits an extremely high potential for irregular use and misuse.