Ecclesiastical Discipline in the Anglican Church in North America: Part 4

Read Part 1, Part 2, and Part 3.

By Robin G. Jordan

Appeals. Canon IV.5.5-6 are adapted from Sections 6 and 7 of Canon 31 of the Rwandan canons [See end-note]:

Section 6 - On Appeal
1. An appeal may be made within thirty days of the decision of the Trial Court. This appeal shall be made in writing to the bishop who is the Presiding Officer of the Court of Review, stating the nature o of the case and the reason(s) for the appeal.

2. The Court of Review shall, within thirty days, request the entire transcript of the trial from the Trial Court and upon receipt of the transcript shall notify immediately all parties of the time and
place for the hearing of the appeal which shall be within three months but not fewer than two months from the date of notification.

3. At least three of the five judges must be present to hear the appeal who shall render their decision on the appeal within thirty days of the hearing. The expenses of the appeal shall be paid by the appellant.

Section 7 - Process of the Court of Review
1. The Court of Review, at its discretion, may hear the appeal solely upon the evidence presented to the Trial Court or admit additional pertinent evidence. The Court may reverse or affirm, in whole or in part, the decision of the Trial Court, or, if in its opinion, justice shall require, may grant a new trial.

2. Should the appellant fail to appear for the hearing, the Court of Review shall, at its discretion, dismiss the appeal, or proceed to hear and determine the appeal. The concurrence of two-thirds of the members of the Court present shall be necessary to pronounce a judgment.

The requirement that the appellant pay the cost of the appeal unless the appellant is successful or the Provincial Tribunal otherwise orders may be intended to discourage frivolous suits. However, it also discourages legitimate suits.

Under English ecclesiastical law, under the provisions of The Church Discipline Act of 1840 an appeal from the judgment pronounced by bishop in the first instant lies to the archbishop. This appeal is heard before the judge of the provincial court. It is not actually heard by the archbishop. If the judgment is pronounced by the archbishop in the first instant, an appeal from the archbishop’s decision lies to the provincial court. An appeal from the judgment of the provincial court, whether pronounced on an appeal from the judgment of the bishop or archbishop, or, in the first instance, on a case sent to the court by letters of request, lies to the Judicial Committee of the Privy Council.

Under the provisions of the Clergy Discipline Act, 1892, an appeal either to the provincial court, whose decision in that case is final, or, in the alternative, to the Judicial Committee of the Privy Council. May be made by either party on a question of law within 28 days, and by the defendant, with the leave of the court to which the appeal is made, obtained on a petition lodged within 15 days, on a question of fact. Leave of appeal in respect to the facts cannot be granted in the absence of a prima facie case. Leave to appeal may be given where the decision of the consistory court was against the weight of evidence; where the petitioner obtains evidence since the hearing which might have affected the decision, provided an explanation is offered for its non-production; or where the evidence was dealt with by the consistory court in such a manner as to render the trial unsatisfactory. The time for appeal cannot be enlarged, unless a satisfactory reason is given for the delay. On an appeal as to facts the appellate court may summon any witness heard at trial, and any new witness not heard at trial, to give evidence with respect to the case.

The provincial court of the Archbishop of Canterbury is called the Arches Court of Canterbury or the Court of Arches. The judge of the court is described in his letters patents as “the Official Principle of the Arches Court of Canterbury,” but is usually styled and is addressed as “the dean of the Arches.” The provincial court of the Archbishop of York is called the Chancery Court of York, and the judge is called the official principle or auditor.

The judge of the provincial courts of Canterbury and York is now appointed by the two archbishops, subject to the approval of the Queen under her sign manual. He must be a barrister-at-law who has been in actual practice for ten year, or a person who has been a judge of the Supreme Court of Judicature. If the archbishops do not appoint the judge within six months after the occurrence of a vacancy in the office, the Queen may by letter patents appoint to be judge some person with the foregoing qualifications.

Under the provisions of the Incumbents (Discipline) Measures,1947 to 1953, there is no right of appeal against a decision of the bishop to deal with the charges himself, or against any exercise of his power in consequence of such a decision.

An incumbent may, within 25 days after the bishop has given notice of the manner in which he intends to exercise his powers, appeal against any decision of a special court or any exercise of the bishop’s powers to the ecclesiastical court of the province and until that appeal has been withdrawn or determined the bishop cannot exercise his powers of censure, inhibition, or avoiding the benefice. The provincial court’s decision is final.

The appeal is to the provincial court constituted to hear appeals on charges against incumbents. This court is constituted in accordance with canons passed respectively by the convocations of the province of Canterbury and York. The court so constituted consists of the archbishop or another bishop of the province from time to time appointed by him to act in his stead; three clerks in holy orders appointed by the prolocutor of the Lower House of Convocation in such manner as that House shall from time to time direct; the vicar-general of the province or, if he is unable to serve, a deputy being a barrister of not less than ten years standing approved by the archbishop; and two laymen appointed by the chairman of the House of Laity in the National Assembly of the Church of England in such manner as that House shall from time to time direct. An appeal to this court is final. Any decision of this court is that of a majority of its members.

Sentencing of Deacons and Presbyters. Canon IV.8.1 recognize a bishop alone as having authority to pronounce sentence on a deacon or presbyter convicted under the provisions of the canons. If there is no bishop with jurisdiction over the deacon or presbyter, the Archbishop must pronounce sentence or appoint a bishop to do so. Canon IV.8.1 is an adaptation of Section 1, Role of the Bishop in Sentencing, of Canon 36, Of Sentencing, of the Rwandan canons:

The Bishop alone has the authority to pronounce sentence on a priest or deacon convicted as indicated in these canons.

It is noteworthy that the Rwandan canons respect the right of the bishop to pronounce sentence on a deacon or presbyter. The provision requiring the Archbishop to pronounce sentence or to appoint a bishop to do so in cases where there is no bishop jurisdiction over the deacon or presbyter is an example of how the ACNA canons seek to arrogate metropolitical authority to the Archbishop.

Under the provisions of Canon IV.12.4(a) of the Episcopal Church’s canons as revised through 2006, if the bishop of a diocese is disqualified from pronouncing sentence upon a deacon or presbyter, or there is no bishop of that jurisdiction, the standing committee of the diocese requests another bishop to pronounce sentence. Under the provisions of Section 3 of Canon 64 of the PECUSA canons in cases where the bishop of the jurisdiction is disqualified from pronouncing sentence or there is no bishop of that jurisdiction, the sentence is pronounced by another bishop at the request of its standing committee or council of advice. These canonical provisions embody a collegial approach to the pronouncement of sentence over a deacon or presbyter.

English ecclesiastical law recognizes the right of a bishop of a diocese to pronounce sentence over a deacon or presbyter convicted of an offense or offenses in the diocese. Where proceedings have been commenced under the Church Discipline Act, 1840, the bishop of any diocese within which the clerk holds preferment, may, with the written consents of the clerk and of the accusing party (if any), pronounce, without further proceedings, such sentence as may seem fit. This sentence cannot exceed the sentence that might be pronounced in due course of law. The sentence may be enforced by like means as if pronounced after a hearing under the Church Discipline Act, 1840. As previously noted, the bishop must pronounce sentence without delay if the accused or his agent appears before him in response to a citation to appear and admits to the truth of the articles served upon the accused. The bishop also pronounces sentence if he with the assistance of three assessors hears the cause and determines it.

Under the provisions of the Clergy Discipline Act, 1892, the chancellor must notify the bishop that a defendant is found guilty, and must notify him of the sentence that should be passed. a sentence of deprivation is pronounced by the bishop and other sentences by the chancellor unless the bishop signifies to the chancellor his desire himself to pronounce sentence. Where the bishop is present, sentence may be pronounced without delay. Otherwise the case is adjourned for notification to be made to the bishop. Where the sentence is not pronounced at once, three clear days’ notice of time and place fixed for the pronouncement of the sentence must be given to the prosecutor and the defendant. Sentences must be recorded in the diocesan registry. The power of the bishop under the Church Discipline Act, 1940, to pass summary sentence (see above), is applied by the Clergy Discipline Act, 1892.

Nothing in the Clergy Discipline Act, 1892, affects any prerogative of the Queen as respect pardon or otherwise.

A clergyman who holds no preferment may, instead of being sentenced to deprivation, be sentenced to be incapable of holding preferment.

A clergyman who willfully disobeys a sentence or any requirement or direction in sentence may be cited before the consistory court and if after prescribed proceedings for showing cause to the contrary the chancellor is satisfied that the clergyman has been willfully disobedient and ought to be punished, he may pronounce judgment against him and sentence him to such ecclesiastical punishment as the gravity of the case requires, including a sentence of deprivation.

Where a clergyman is alleged to have willfully disobeyed a sentence any person may lodge a complaint with the registrar giving particulars of the disobedience. The registrar must submit the complaint to the chancellor who, if satisfied that it should be heard must cause a copy to be served on the clergyman and fix a day for hearing in the consistory court. The day fixed must not be more than 30 and not less than 21 clear days after the complaint has been lodged. The registrar must give at least 7 days’ clear notice of the day fixed and must summon the clergyman to appear. Evidence is given by affidavit but the chancellor may adjourn the case for the production of witnesses. Affidavits must be filed within the time fixed by the registrar and notified to the parties. No other affidavits may be filed without the registrar’s leave. Affidavits are filed with the registrar in duplicate and served by him on the opposite party. The registrar must order the attendance of a deponent required by either party for cross-examination in the matter of his affidavit, but the chancellor may allow evidence to be taken by deposition before an examiner.

Under the provisions of the Incumbents (Discipline) Measures, 1947 to 1951, the bishop has, in his discretion, the power to pronounce censure upon the incumbent, inhibit him from discharging all or any duties of any benefice held by him for a period not to exceed three years, and immediately, or while the incumbent is inhibited, to declare the benefice vacant if the bishop, after personal investigation determines, or the special court reports, that any charge against the incumbent has been established. The bishop may only declare a benefice vacant with the concurrence of at least five members of the ministerial committee.

Where the bishop has personally investigated a case he must give public notice in such manner as he thinks fit of his decision and of the manner in which he intends to exercise his powers. Within 14 days after the bishop receives the report of the special court, he must also give public notice in such manner as he sees fit of the manner in which he intends to exercise his powers, and give the incumbent and the promoter written notice of his intention and must not exercise the powers within 28 days of the notice. If a appeal is entered, the bishop cannot exercise his powers until the appeal is heard or withdrawn.

Sentencing of Bishops. Canon IV.8.2 recognize the College of Bishops, speaking through the Archbishop or his designate, as having sole responsibility and authority to pronounce sentence on a bishop. Canon IV.8.2 is adapted from Section 2, Pronouncement of Sentence, of Canon 36 of the Rwandan canons:

The House/College of Bishops, speaking through the Primate or his designate, has the sole responsibility and authority to pronounce sentence on a bishop.

Remission or Modification of Sentences of Deacons and Presbyters. Under the provisions of Canon IV.8.4 the bishop of the judicatory in which a deacon or presbyter was convicted may, “with the advice and consent of the Archbishop,” in consultation with the Executive Committee, shorten or terminate the sentence of suspension of the deacon or presbyter. Canon IV.8.4.1 is an adaptation of Section 4, Length of Sentence, of Canon 36 of the Rwandan canons:

A sentence of suspension of a priest or deacon may be terminated or shortened by the Bishop of the diocese in which he was convicted with the advice and consent of the House/College or Council of Bishops.

Note that the Rwandan canons require a bishop to consult with his fellow bishops and seek their advice and consent before reducing the length of a sentence of suspension of a deacon or presbyter or lifting that sentence. This is a collegial approach to decision-making in the remission or moderation of a sentence.

The requirement of the advice and consent of the Archbishop, in consultation with the Executive Committee, of Canon IV.8.4 goes beyond assigning a particular duty or responsibility to the Archbishop. It implies that the Archbishop has, in matters of discipline, authority over the bishops of the ACNA even though the constitution does not recognize the Primate and Archbishop of the ACNA as the metropolitan of the province nor does it give metropolitical authority to him. It is another example of how the canons seek to arrogate to the Archbishop powers that the constitution does not give him.

The bishop of a judicatory admits candidates to holy orders in the judicatory. Except where the marital status may be an impediment to the admission of a candidate to holy orders, the Archbishop is not involved in this process. In order to minister in a judicatory of the ACNA a deacon or presbyter must be licensed by the bishop of the judicatory. A deacon or presbyter cannot transfer to another judicatory without a letter of transfer from the bishop of the judicatory from which he is transferring. The Archbishop has no role in these processes. The bishop of the judicatory who inflicted a sentence of suspension on a deacon or presbyter, should be free to remit or modify that sentence in consultation with the standing committee or the equivalent of the judicatory. As in the previous cases, the Archbishop had no role in the process: his leave was not required to inflict the sentence of suspension. The requirement that a bishop of a judicatory must first obtain the approval of the Archbishop and the Executive Committee before remitting or modifying a sentence of suspension is an infringement upon the autonomy of the judicatory. This requirement appears to be motivated by the fear of litigation.

The only interest that the Archbishop and the Executive Committee have in the case is that the ACNA may be sued along with the judicatory and its bishop as a result of the misconduct of the suspended deacon or presbyter. Whoever drew up this requirement appears not to trust the judgment of the bishop of the judicatory in remitting or modifying the sentence of the deacon or presbyter. Only if the Archbishop himself inflicted the sentence does it make sense for him to have any say in the remission or modification of the sentence. An alternative process that respects the autonomy of the judicatories and sub-jurisdictional provinces of the ACNA is for these bodies to jointly develop guidelines for sentencing, including the remission and modification of sentences, that they commonly agree to use in disciplinary cases.

Under the provisions of Canon IV.13.2 of the canons of the Episcopal Church, as revised through 2006, the bishop of a diocese may, for sufficient reasons and with the advise and consent of two-thirds of all the members of the diocesan standing committee, remit and terminate a sentence of suspension pronounced in his jurisdiction upon a deacon or presbyter. Under the provisions of Canon IV.13.3 (and Canon 66, Sec.2 of the PECUSA canons, as revised through 1976) the bishop of a diocese may, for sufficient reasons, remit and terminate a sentence of deposition pronounced in his jurisdiction upon a deacon or presbyter provided that he exercise this power only upon the following conditions:

(1) He acts with the advice and consent of two-thirds of all the members of the diocesan standing committee.
(2) He submits his proposal for remission of the sentence, with his reasons for wishing to remit the sentence, to the judgment of five bishops whose dioceses or missionary districts are nearest his own, and receives in writing from four of these bishops, their approval of the remission and their consent to it.
(3) Before remitting the sentence, he must require the person to be restored to the ministry to subscribe to the declaration required in Article VIII of the Constitution of the Episcopal Church.

This is also a collegial approach to decision-making in the remission or moderation of a sentence.

The ACNA disciplinary canons make no provision for the remission and termination of a sentence of deposition.

In English ecclesiastical law the court that inflicts a sentence of suspension is the court that remits or modifies the sentence of suspension. The permission of the archbishop of the province is not required for a court to inflict a sentence or to remit or modify it.

Remission or Modification of Sentences of Bishops. Under the provisions of Canon IV.8.4.2 the College of Bishops may, with the consent of the Archbishop, shorten or terminate the sentence of suspension of a bishop. Canon IV.8.4.2 is adapted from Section 5, Termination of Sentences, of Canon 36 of the Rwandan canons:

A sentence of suspension against a bishop may be terminated or shortened by the House/College of Bishop with the Consent of the Primate.

Note that under Article 7, Section 1 of the Rwandan Constitution the Rwandan Primate, “once elected and installed” has “privileges, powers, authority and duties as defined by the Constitutions and Canons made by the Provincial Synod. According to the provisions of Article 7, Section 4(b), pastoral responsibilities of the Rwandan Primate include “to preside when he is so required by Canons at the hearing of appeals in accordance with the provisions of this Church concerning the trial of a Bishop, the Clergy, and/or Laity and also on other occasions when the House of Bishops sits as a court.” Section 2, Primatial Norms, of Canon 2, Of the Primate states:

There shall be an Archbishop, Metropolitan and Primate of the Church of Rwanda (Anglican Communion), who shall exercise all the rights and perform all the duties of a Metropolitan and shall be the principal minister of the Church.

The constitution and canons of the ACNA have no equivalent provisions. Article IX.3 of the ACNA constitution clearly states: “The Archbishop convenes the meetings of the Provincial Assembly, Provincial Council and College of Bishops, represents the Province in the Councils of the Church and carries out such other duties and responsibilities as may be provided by canon.”

The Archbishop of the ACNA has, under the provisions of the ACNA constitution, much more limited authority than the Rwandan Primate has under the Rwandan constitution. As in the case of the shortening or termination of a sentence of suspension of a deacon or a presbyter, the requirement of Canon IV.8.4.1 that the Archbishop give his consent to the College of Bishop’s remission of the sentence of suspension of a bishop is one more example of how the canons seek to arrogate to the Archbishop powers that the constitution does not give him. As we have seen, the canons recognize the College of Bishops as having sole responsibility and authority to pronounce sentence on a bishop. The role of the Archbishop or his delegate in pronouncing this sentence is to serve as the voice of the College of Bishop, that is, as its spokesman. The College of Bishops, not the Archbishop or his delegate, inflicts the sentence. Whoever drafted this requirement also appears to not trust the judgment of the College of Bishops in shortening or terminating the sentence of suspension of a bishop.

Under the provisions of the ACNA canons the College of Bishops confirms the election of a bishop elect or elects a new bishop from a slate of two or three nominees proposed by a judicatory. By protocol with the Anglican Mission, the College of Bishops “welcomes” a missionary bishop newly appointed by the Rwandan House of Bishops. The Archbishop plays no role in these processes except as the convener and presiding officer of the College of Bishop. Under Canon IV.13.1 of the Episcopal Church’s canons, as revised through 2006, the House of Bishops may “remit and terminate any judicial sentence” imposed upon a bishop, or modify the sentence “so far as to designate a precise period of time, or other specific contingency, on the occurrence of which the sentence shall utterly cease, and be of no further force or effect” subject to the following provisos:

Provided, that no such Remission or modification shall be made except at a meeting of the House of Bishops, during the session of some General Convention, or at a special meeting of the House of Bishops, which shall be convened by the Presiding Bishop on the application of any five Bishops, after three months' notice in writing of the time, place, and object of the meeting being given to each Bishop; Provided, also, that the Remission or modification be assented to by not less than a majority of the Bishops; And Provided, that nothing herein shall be construed to repeal or alter the provisions of Canon IV.12.

Canon 65, Section 1, of the PECUSA canons, as revised through 1976, contained similar provision for the House of Bishops to remit or modify the sentences of bishops.

Should the ACNA College of Bishops have less authority in this matter than the Episcopal Church’s House of Bishops?

As in the case of a sentence of deposition imposed upon a deacon or presbyter, the ACNA canons make no provision for the remission of a sentence of deposition imposed upon a bishop.

As we have also seen, in English ecclesiastical law the court that inflicts a sentence of suspension is the court that remits or modifies the sentence of suspension. The court does not require the permission of the archbishop of the province to inflict a sentence or remit or modify it.

The requirement for the advice and consent of the Archbishop in the consultation with the Executive Committee for the remission or moderation of the sentence of suspension of a deacon or a presbyter suggests that whoever proposed this requirement may not believe that the bishops of the ACNA can be relied upon to protect the organization from the possible adverse consequences of shortening or terminating the sentence of suspension of the wrong person such as litigation. The apparent thinking is that the top leadership of the ACNA, represented by the Archbishop and the Executive Committee, should have an opportunity to review the case and to block the remission or moderation of the sentence of a deacon or presbyter that might embarrass the ACNA or have worse consequences.

Requiring the College of Bishops to seek the consent of the Archbishop before shortening or terminating the sentence of suspension of a fellow bishop which the College of Bishops itself inflicted, however, cannot be justified on this basis by any stretch of the imagination. This requirement suggests that its proposer wanted to give the Archbishop more control over the other bishops of the ACNA and sought to do so by not only limiting their discretion in reducing the length of the suspension or lifting the suspension of their own clergy but also curtailing their liberty to do the same for a fellow bishop. Whoever proposed these requirements certainly does not appear to take a collegial view of the episcopate.

It may be helpful in understanding these provisions to examine the consequences of giving such control to the Archbishop. First, it takes away an important power of the bishops and the College of Bishops in the administration of discipline in the ACNA and gives it to the Archbishop. Second, it sets a precedent for the Archbishop’s usurpation of other powers of the bishops. Third, it erodes and weakens the individual and collective authority of the bishops. Fourth, it makes the deacon, presbyter, or bishop ultimately beholden to the Archbishop for the shortening or termination of his sentence of suspension. Fifth, it enables the Archbishop who for reasons of his own to refuse to permit the shortening or termination of a sentence of suspension even though a reduction of the length of the sentence or lifting of the sentence is warranted in the case. The canons do not require the Archbishop to offer any explanation for his decision. For example, the Archbishop may choose not to consent to the remission or moderation of a sentence of suspension out of personal resentment and ill will toward the person under suspension. Archbishops are human beings like everyone else. The history of Christian Church and the Church of England is filled with archbishops who acted from less than noble motives. Sixth, it politicizes the process. The bishop or the College of Bishops may be drawn into a power struggle with the Archbishop and the deacon, presbyter, or bishop under suspension may become a victim of this power struggle.

It is possible under the existing provisions of the canons for the Archbishop with the connivance of two or more other bishops to bring charges against a bishop. The Archbishop appoints the Board of Inquiry that determines if there are sufficient grounds for a formal presentment. The canons do not require the Archbishop to inform the accused of the names of the members of the Board of Inquiry. They do not give the accused an opportunity to challenge the members of the Board of Inquiry. They do not provide an alternative procedure for the appointment of a Board of Inquiry if the Archbishop himself is directly or indirectly a party in the proceedings or has a special interest in their outcome.

It is also possible for the Archbishop for the Archbishop to fill the Court for the Trial of Bishops with partisans, not only the court itself but also the court’s legal adviser and the prosecutor, and to influence the verdict in the trial of a bishop. The canons do not prescribe the process by which candidates are nominated to serve on the court and do not rule out the Archbishop’s involvement in the nominating process. The Archbishop appoints the court’s legal adviser and the prosecutor. The canons do not specify how long the court’s legal adviser and the prosecutor are to serve and leave open the possibility of the Archbishop appointing them for a particular trial. The canons provide no alternate procedure for the appointment of the court’s legal advisor and the prosecutor if the Archbishop himself is a party in the proceedings, has a special interest in their outcome, or even is himself the accused.

Indeed the canons make no provision for the presentment, trial, and sentencing of the Archbishop except as a bishop. They do not identify who will perform the duties and responsibilities of the Archbishop in the event of his inhibition and presentment.

End-Note: The 2008 Code of Canon Law of the Anglican Church of Rwanda is largely, if not entirely, the work of Anglican Mission Canon Kevin Francis Donlon who also served on the Common Cause Governance Task Force and was involved in the drafting of the present canons of the Anglican Church in North America. Anglican Mission Chairman Charles "Chuck" Murphy also served on the same task force.