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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.
A new Gallup poll has revealed what many churchgoers already know – going to a place of worship and participating in a congregation makes people happier and lifts up their spirits.
The Gallup-Healthways Well-Being Index is a real-time measurement that insights to help improve health, increase productivity, and lower healthcare costs. Gallup interviews 1,000 adults every day to compile its data that takes a look at happiness trends ranging from 2008 and onward.
The 2011 findings, based on interviews with more than 300,000 respondents, concluded that people who go to church frequently experience an average of 3.36 positive emotions per day, compared to the average 3.08 experienced by others. The positive emotions in question include smiling and laughter, enjoyment, happiness, and learning or doing something interesting. Keep reading
Todd and Darren Lemons are currently planting The Refuge in Terrell, Texas and are planning on an official launch date of January 6, 2013.
Tell us about your calling to church planting.
Todd – I was part of a plant in 1996 in Savannah, GA and from there called to the ministry. Ever since then, I have felt a strong connection with church planting and after serving with established churches, I felt God calling me to plant a church a couple of years ago. When I asked for prayer from a good friend of mine, Darren, he said he was being called to do the same. We prayed, talked about it, and our visions lined up almost to a “T”. We then were approved by our association and God has confirmed our calling every step of the way.
Darren – I had been serving in Mesquite, TX and was struggling for 5 years with the calling of where God wanted me to plant a church. God kept revealing the Kaufman County area to me. I was getting ready to start the process when Todd and I discussed his calling. God brought us together to reach this area. Keep reading
Debt can limit a person's generosity -- and a church's.
Travis Smalley arrived at the Cincinnati-area Lakota Hills Baptist Church six years ago with a vision to plant churches locally, nationally and internationally. But just in Ohio, with just one Southern Baptist church for every 17,868 people, Smalley knew Lakota Hills couldn't reach everyone.
Yet Smalley's passion to start churches ran up against a major roadblock -- lack of funds.
The church, founded in 1967, had a debt of more than $1.3 million, rendering its members unable to put as much money into church planting as they would have liked. Over the past five years, however, the church has paid off more than 65 percent of that debt -- even in the midst of the nation's economic downturn.
Now, thanks to a loan from the Church Finance Ministry of the North American Mission Board, Lakota Hills will be able to save an additional $45,000 a year on its debt -- which Smalley said will go into church planting. Keep reading
What can your church do to help plant more new churches?
Easter is coming. It's the day we mark the biggest moment in history: the moment the resurrected Christ conquered sin and death.
A few years ago I shared some "little Easters," the quiet epiphanies that continue to reveal His risen presence on the move around the world. Here are a few more. Keep reading
Read Part 1.
By Robin G. Jordan
Disciplinary Proceedings against Bishops. The requirements for the presentation of a bishop are much more stringent and make it much more difficult to hold a bishop accountable for misconduct or any other offense specified in Canon IV.2.
Canon IV.4.1 states:
A Bishop may be charged under Canon IV.2 by three Bishops of this Church with jurisdiction, or by not fewer than ten Presbyters, Deacons, or adult baptized members of this Church in good standing, of whom at least two shall be Presbyters. One Presbyter and not fewer than six lay persons shall belong either to the Diocese in which the alleged offense was committed or to the Diocese in which the Bishop is canonically resident. Such charges shall be in writing, signed and sworn to by all the accusers and shall be presented to the Archbishop, the Archbishop’s delegate, or the College of Bishops. The grounds of accusation must be set forth with reasonable certainty of time, place and circumstance. The charges shall be referred to the Board of Inquiry.
Who may charge bishops with offenses in this canon is taken from Canon IV.3.23 (a)(1) and(2) of the canons of the Episcopal Church, which states:
A Bishop may be charged with any one or more of the Offenses other than Offenses specified in Canon IV.3.21(c) by
(1) three Bishops; or
(2) ten or more Priests, Deacons, or adult communicants of this Church in good standing, of whom at least two shall be Priests. One Priest and not less than six Lay Persons shall be of the Diocese of which the Respondent is canonically resident; or…
The Episcopal Church has adopted a complicated procedure for charging bishops with offenses specified in Canon IV.3.21 (c), that is, “ for holding and teaching publicly or privately, and advisedly, any doctrine contrary to that held by this Church.” The House of Bishops must first issue a statement of disassociation from the doctrine alleged to be contrary to be held by the Episcopal Church before a bishop may be charged with such offenses. A request for a statement of disassociation signed by ten bishops and accompanied by the proposed statement of disassociation and a supporting brief must be filed with the Presiding Bishop who must serve copies of these documents upon the bishop who has been charged and send copies of them to each member of the House of Bishops. Upon the House of Bishops’ issuance of a statement of disassociation ten bishop may file a presentment. If the House of Bishops does not issue a statement of disassociation, there are no further proceedings. Even if the House of Bishops does issue a statement of disassociation and ten bishops file a presentment, the written consent of one-third of the voting members of the House of Bishops is required before the proceedings may continue.
One of the problems that have beset the Episcopal Church has been the difficulty of holding bishops accountable for apostasy from the Christian faith, heresy or false doctrine, and abuse of ecclesiastical power due to these requirements. This problem has been further complicated by the lack of clear doctrinal statements in the Episcopal Church. Such statements are also lacking in the Anglican Church in North America.
It is noteworthy that the ACNA canons omit the special provision of Canon IV.3.23 (a) (3):
…in a case when the Offense alleged is the Offense of Crime, Immorality or Conduct Unbecoming a Member of the Clergy, as specified in (1) or (2) or by any adult who is (i) the alleged Victim, or (ii) a parent or guardian of an alleged minor Victim or of an alleged Victim who is under a disability, or (iii) the spouse or adult child of an alleged Victim.
Considering the number of cases of child sexual abuse and exploitation, sexual harassment, and sexual misconduct in Anglican and non-Anglican churches that have come to light during recent years, such a provision is warranted, and its omission is irresponsible.
With the exception of the referral to the Board of Inquiry, the remaining language of Canon IV.4.1 is taken from Section 2, Requirements for Presentment, of Canon 32, Of Presentments in the Episcopate, of the Rwandan canons:
Such charges shall be in writing, signed and sworn to by all the accusers and shall be presented to the Primate or his delegate, otherwise the College of Bishops. The grounds of accusation must be set forth with reasonable certainty of time, place and circumstance.
Before drawing the conclusion that the ACNA canons make it easier to charge a bishop with offenses specified in Canon IV.2, we need to consider who may make charges against a bishop under the canons of the Anglican Church of Rwanda and other Anglican bodies, both in and outside the Anglican Communion.
Anglican Church in Aotearoa, New Zealand and Polynesia:
Any person may make a complaint against a Bishop of this Church for any breach of duty required, or of ethical standards, under Canon I Part A.
No complaint against a Bishop other than a complaint for sexual or other harassment shall be received unless it proceeds from six baptised members of this Church of whom two at least shall be licensed priests. Canon II, Sections 3-3.1
Anglican Church of Kenya:
No charge shall be received against a bishop of the province unless it be preferred by at least ten (10) priests licensed in the church or by five (5) bishops of the church, or if it relates to matters other than faith and doctrine, by at least five (5) priests and three (3) lay representatives in the synod of the diocese of the accused bishop. Canon XVII, Section 1
Anglican Church of Rwanda:
A bishop may be presented by any bishop of this Church exercising jurisdiction, or ten or more communicants of' this church in good standing, of whom at least two shall be priests: one priest and not fewer than six communicants shall belong to the diocese in which he has domicile. Canon 32, Section 2
Anglican Province of America:
In the event the charged party is a bishop, the presentment shall be endorsed and certified by the affidavit of one bishop, by no less than three priests, and no less than five members in good standing of the laity of the church. Canon 29, Section 7
Church of Ireland:
Any bishop or any member of the clergy or any lay member of the Church of Ireland who has a proper interest may bring to the attention of the Complaints Administrator any complaint in respect of a bishop by means of a written submission signed by such person.
Any such written submission must be accompanied by the sum of £600 or €1,000 (or such other sum as the Rules Committee may from time to time prescribe). Such sum shall be held by the Complaints Administrator and shall be returned to the Complainant unless the Complaint is dismissed pursuant to section 27(a), 28(a) or the Complaints Committee is of the opinion that a prima facie case has not been made out in respect of the Complaint. Where such a written submission is made by a lay member or members of the Church of Ireland, it must incorporate a written confirmation on the part of each such lay member that he or she is a member of the Church of Ireland. Chapter VIII.1. 26 (b)-(c)
Church of Nigeria (Anglican Communion):
No charge shall be received against a Bishop of the Church unless it be preferred, if it relates to a matter of Faith and Doctrine, by at least five Priests of the Diocese, or by a Bishop of the Church or, if it relates to other matters, by at least three Priests of the Diocese and also three Lay Representatives in the Synod of the Diocese of the accused Bishop. Canon XIV, Section 23
Reformed Episcopal Church:
In the event the charged party is a bishop, the presentment shall be endorsed and certified by the affidavit of at least one bishop, by no less than two presbyters, and no less than five communicant members in good standing of the laity of the Church. Canon 29, Section 7
Scottish Episcopal Church:
>Any person admitted to the Roll of Communicants of a congregation in terms of Canon 41, Section 2, or who is entitled to be so admitted, or the Provincial Officer for the Protection of Children and Vulnerable Adults appointed under Canon 65 may bring an accusation in the form prescribed in Section 4 of this Canon against a Bishop, Priest or Deacon holding any form of authorisation to minister in the Scottish Episcopal Church alleging that an offence has been committed by such accused under Section 2 of this Canon. Canon 54, Section 3
As we can see from this sampling of provisions of the canons of several Anglican bodies specifying who can make charges against a bishop in the province or body, the requirements of the ACNA canons, while not the most difficult, are among the more difficult of the requirements that were sampled.
Under the provisions of the canons it is not only difficult to bring a presentment against a bishop, it is also difficult for a bishop to get a fair shake. Note that neither in this section or elsewhere in the canons is there a provision requiring the articles of presentment to be served upon the bishop or the names of those making the charges to be provided to him. The bishop and his legal counsel would need such information to prepare an adequate defense. The bishop and his legal counsel is not given an opportunity to discuss the charges with the Board of Inquiry and to challenge the members of the Board of Inquiry. Under the provisions of the canons the Board of Inquiry can conduct its investigation without the bishop’s knowledge. The Archbishop is not required to inform the bishop of the appointment of the Board of Inquiry. If the Board of Inquiry completes its investigation and determines the existence of no probable cause to try the bishop for violation of Canon IV.2, it is not required to inform the bishop that he has been subject of an investigation. The Archbishop is also not required to inform the bishop. The Board of Inquiry is required to make a public declaration of its findings if it finds in the course of its investigation probable cause to put the bishop on trial for violation of Canon IV.2. It is not required to provide the bishop and his legal counsel with the record of its investigation, the testimony that it gathered, and the conclusions that it drew from this testimony, all of which the bishop and his legal counsel would also need to prepare an adequate defense.
While the canons require judicatories to provide an adviser to deacons and presbyters and their legal counsel to assist them in their defense, they make no such provisions for bishops.
While, as we shall see the canons make provision for the inhibition of a bishop under presentment, they do not require it. In the case of minor violations of Canon IV.2 the requisite number of senior bishops may choose not to inhibit the bishop pending the outcome of the investigation of the Board of Inquiry. The lack of any provision to notify the bishop of the charges made against him or inform him of the appointment of a Board of Inquiry cannot be justified on the grounds that he would learn of the charges and the appointment of the Board of Inquiry at the time he was inhibited. The canons do not require the inhibiting bishops to inform the accused bishop of why they are inhibiting him.
Under English ecclesiastical law, under the provisions of the Bishops (Retirement) Measure of 1951, if a complaint is sent to the archbishop of a province that a bishop of a diocese in the province or a suffragan bishop commissioned by a bishop of a diocese in the province has been guilty of an offense or offenses, and the complaint if it is signed by five beneficed clergy in the diocese and by five lay members of the diocesan conference of that diocese, or if the archbishop is otherwise satisfied that it is worthy of investigation, he must call into consultation three bishops of his selection from a panel of bishops appointed by the Upper House of Convocation of the province to consider it; if he and they, or a majority of them, decide that the complaint is serious and the matter is not one which can otherwise be dealt with satisfactorily, the archbishop must refer the complain to the Upper House of Convocation for inquiry and report. That House, unless of the opinion that the complaint is unfounded must refer the complaint to a commission appointed by them for the purpose, consisting of, unless they otherwise determine, members of the Upper House who must invite to act as their legal assessor the official principal, or judge, of the province or a deputy nominated by him and approved by the archbishop. This deputy must be person holding or having high judicial office or be a barrister of not less than ten years’ standing.
The archbishop must authorize the complainants if they are willing, or if none is willing, some other person or persons to conduct the proceedings before the commission as promoters.
The registrar of the province must give to the promoters and to the bishop against whom the complaint is made not less than 15 days’ notice of the time and place of the hearing of the complaint. At the hearing the commission must inquire into the complaint. The commission has power to regulate its own procedure, subject to any directions given by the Upper House of Convocation. The proceedings, however, must, in general, be public. The commission has the same power of administering oaths and requiring the production of documents as the High Court may exercise. The commission may award costs against either party.
The decision of the commission must be that of a majority of the members. The report must be sent to the Upper House of Convocation of the province through the president. It must state whether the complaint is founded or whether any of the charges contained in the complaint have been admitted by or proved against the bishop, and if so which of them. A copy of the report must be sent to the bishop.
If the commission reports that the complaint is unfounded the Upper House of Convocation must declare it to be unfounded. In any other case the Upper House of Convocation may decide to take no further action, censure the bishop, or request the archbishop to declare the bishopric vacant. In the latter case the archbishop may declare the bishopric vacant but the declaration is not effective unless and until confirmed by Her Majesty the Queen in Council.
If a complaint alleging that the archbishop has been guilty of conduct unbecoming the office and work of an archbishop or of serious persistent or continuous neglect of duty is sent to the two senior diocesan bishops of his province and the complaint is signed by five clergymen holding benefices in the diocese of the archbishop against whom the complaint is made and five lay members of the diocesan conference of that diocese, or if the two senior bishops are otherwise satisfied that the complaint is worthy of investigation they must call into consultation such three bishops from the panel as they may select. If the five bishops thus constituted or a majority of them determine that the complaint is serious and that the matter cannot otherwise dealt with satisfactorily the two senior bishops must refer the complaint to the Upper House of Convocation of the archbishop’s province for inquiry and report.
Only complaints that might be entertained against a bishop may be entertained against an archbishop. The subsequent proceedings and powers of the Upper House and of any commission appointed by the Upper House are the same as in the case of a bishop, except that all the functions, powers, and duties performed and exercised by the archbishop when there has been a complaint against a bishop are performed by the two senior diocesan bishops of the province.
If, after investigation of the complaint the Upper House requests the two senior bishops to declare the archbishopric of the archbishop vacant they may do so, but such declaration does not take effect unless and until it is confirmed by Order in Council.
The Canonical Provision for the Investigation of Rumors affecting a Bishop’s Character. While it may not be easy to bring a presentment against an ACNA bishop, ACNA bishops may, with the agreement of two of their fellow bishops, demand an investigation if he has “reason to believe that there are in circulation rumors, reports, or allegations affecting his personal or official character.” He may make this demand to the Archbishop, the Archbishop’s delegate, or the College of Bishops. Upon receipt of this demand the Archbishop must appoint a Board of Inquiry. This is an unusual canonical provision not found in the existing constitutions and canons of the Anglican provinces that I have examined other than the canons of the Episcopal Church and the Anglican Church of Rwanda. According to the provisions of Canon IV.3.23 (c) of the Episcopal Church’s canons a bishop may, “with the advice and consent of any two bishops” of the Episcopal Church, demand such an investigation from the Presiding Bishop who is required to cause the matter to be investigated and to report the results to the requesting bishop. It does not specify how the investigation should be conducted. I also found similar provisions for the investigation of rumors and reports in the Rwandan canons. Canon IV.4.2-5 appears to be adapted from these provisions, from the provisions of Sections 3-7 of Canon 32, Of Presentments in the Episcopate, of the Rwandan canons:
Section 3 – Response to Rumors
Whenever a bishop shall have reason to believe that there are in circulation rumors, reports, or allegations affecting his personal or official character, he may demand in writing of the Primate or his delegate, otherwise the College of Bishops, that investigation of such rumors, reports and allegations be made.
Section 4 – Board of Inquiry
The Primate or his delegate, upon receipt of such demand shall select a Board of Inquiry of five priests and five lay communicants, none of whom shall belong to the diocese of the accused, of whom eight shall form a quorum.
Section 5 –Process of Inquiry
The Board of Inquiry shall investigate such rumors or reports as the case may be. In conducting the investigation, the Board shall hear the accusations and such proof as the accusers may produce, and shall determine whether, upon matters of law and fact, as presented to them, there is ground to put the accused to trial.
Section 6 - Confidentiality
The testimony shall be recorded and transcribed and shall be preserved in the archives of the College of Bishops. The proceedings of the Board shall be private.
Section 7 – Findings of the Board of Inquiry
If in the judgment of the majority of the whole Board of Inquiry there is sufficient ground to present the accused bishop for trial, it shall make a public declaration to that effect.
Section 3, Canonical Investigation, of Canon 30, Of Offenses against Bishops, Priests, and Deacons requires “each Diocese and/or the Province” to “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.” This suggests that a canonical investigator may be appointed to investigate charges against a bishop but does not specify by whom the appointment would be made. The use of the phrase “accused bishop” in Section 7 of Canon 32, on the other hand, does suggest that the provisions of Sections 3 through 7 of this canons are delineating how charges against bishops may be investigated as well as “rumors, reports, and allegations” affecting the character of a bishop. Sections 3 through 6, however, do appear to be referring to accused as a person or persons including but not limited to bishops. The Rwandan canons are murky on who actually investigates charges made against a bishop—a canonical investigator, a board of inquiry, or the board of inquiry acting as a canonical investigator.
I also found similar provisions for the investigation of rumors and reports in the canons of two Anglican bodies outside of the Anglican Communion. Canon 30, Of a Board of Inquiry, of the canons of the Anglican Province of America as adopted in 1998 and amended in 2002 and 2004 contains a similar provision as does Canon 30, Of Diocesan Boards of Inquiry, of the canons of the Reformed Episcopal Church as adopted in October 2008. This is not found in the canons of the REC as revised through May 1984. Canon 29, Section 7 of the APA revised canons requires the Presiding Bishop to impanel a board of inquiry composed of himself and two priests to determine the adequacy of the presentment of a bishop. Canon 29, Section 7, of the REC revised canons requires the empanelment of a special board of inquiry to investigate the charges made against a bishop and to determine the adequacy of the presentment. This special board of inquiry consists of the presiding bishop, or a bishop appointed by him, acting as its president, two other bishops, two presbyters, and two laypersons appointed by the general committee. Only the president of the special board of inquiry must not be from the diocese of the accused.
The Rwandan canons were adopted by the Rwandan Provincial Synod in November 2007, endorsed by the Rwandan College of Bishops on January 2008, and promulgated in March 2008. The similarities between the Episcopal, Rwandan, REC, and APA canons are not coincidental. They are all derived from Canon 56, Sections 4-9, of the canons of the Protestant Episcopal Church USA as revised through 1967. A number of omissions from the original provisions of these sections of Canon 56 in the Rwandan adaptation of the provisions of the same sections account for the murkiness of that adaptation. The provisions of Canon IV.4.2-5 are based on the Rwandan adaptation. They contain further omissions that open them to interpretation as not only applying to bishops but to other clergy and laity. This is one of a number of drawbacks of the ACNA “minimalist” canons.
The omissions from the Rwandan adaptation of the original provisions of Canon 56, Sections 4-9 contain a number of important procedural safeguards. The Presiding Bishop must convene a panel of 3 to 7 bishops who weigh the merits of the charges or demand. The Presiding Bishop and the panel of bishops select the Board of Inquiry and not the Primate or his delegate alone as in the Rwandan adaptation.
Sec. 5. The Presiding Bishop, upon receipt of such written charges or such written demand, shall summon not less than three nor more than seven Bishops, and unless a majority of them shall determine that such charges, if proved, would constitute no canonical offense, they shall select a Board of Inquiry of five Presbyters and five Laymen, none of whom shall belong to the Diocese of the accused, of whom eight shall form a quorum….
If the Board finds insufficient ground for a presentment, the accused Bishop is furnished with a true copy of the charges and the Board’s finding:
Sec. 6. If in the judgment of the majority of the whole Board of Inquiry, there is sufficient grounds to put said Bishop upon trial, they shall cause the Church Advocate to prepare a presentment, which shall be signed by such Board as shall agree thereto, and which shall be transmitted with the certificate of the determination of the Board to the Presiding Bishop.
If a majority of the whole Board shall determine that there is not sufficient ground to present the accused Bishop for trial, it shall forward the charges and a certificate of the finding thereon to the Presiding Bishop. He shall send the same to the Secretary of the House of Bishops, by him to be deposited in the archives of the House; and a true copy of these papers shall be given to accused Bishop. [my emphasis] No further proceedings shall be had by way of presentment of such charges, except that any communicant of this Church in good standing may make and present to the Presiding Bishop his affidavit alleging the discovery of new evidence as to the facts charged and setting forth what such evidence is; and upon receipt thereof the Presiding Bishop shall decide whether the affidavit does or does not state grounds which in his opinion are sufficient for the reopening of the case. If the Presiding Bishop shall be of the opinion that the affidavit states grounds sufficient to justify reopening the case, he shall reconvene the Board, which shall determine, first, whether as a matter of fact the evidence set forth in such affidavit is really new evidence and not merely cumulative; and if the Board shall find that the evidence so tendered is new, it shall proceed to receive and consider such evidence, and any further evidence that it may deem proper to receive; and in the light of all the evidence the Board shall determine whether there are sufficient grounds for presentment. If the Board, by a majority of its members, shall decide that there is any such sufficient ground, it shall certify its decision as in this Canon heretofore provided.
The accused Bishop may request the selection of a new Board of Inquiry if the Board is unable to agree upon a finding of sufficient or insufficient ground for a presentment:
Sec. 7. In case a majority of the whole Board shall fail to find either that there is, or that there is not, sufficient ground to present the accused Bishop for trial, it shall certify the fact of its inability to agree upon any such finding to the Presiding Bishop, who, at the request of the accused Bishop, may select a new Board in the manner provided in Section 5, who shall consider the case de novo [my emphasis].
A true copy of the presentment is served on the accused Bishop:
Sec. 8. In case any presentment shall be made to the presiding Bishop as hereinbefore provided, he shall at once transmit the same to the President of the Court for the Trial of a Bishop, and shall cause a true copy of the presentment to be served upon the accused Bishop, in the manner provided in Canon 54.
Who will perform the duties of the Presiding Bishop under the canon in case he is the accuser or the accused or otherwise disabled is prescribed:
Sec. 9. In case the Presiding Bishop shall be either an accuser or the accused, or shall otherwise be disabled, his duties under this Canon shall be performed by the Bishop who, according to the rules of the House of Bishops, becomes its Presiding Office in case of the disability of the Presiding Bishop of the Church.
From these omissions it is clear that the original provisions of Canon 56, Sections 4-9 of the PECUSA canons were intended to deal with the problem of bishops’ spreading malicious rumors or false reports about their fellow bishops. However, the adaptation of these provisions in the ACNA canons can be interpreted as enabling a bishop to initiate an inquiry against any clergy of the ACNA purely on the basis of suspicion. The threat of such an inquiry may be used to suppress any differences in opinion from those of the bishop in the judicatory or sub-provisional jurisdiction that the bishop oversees. It may also be used a fishing expedition for anything that might be used to bring a presentment against any clergy who are at variance with the bishop on any matter. It has a high potential for misuse.
In its investigation of rumors and reports, the canons require that the proceedings of the board of inquiry must be private. There is no mechanism such as a “sunshine” provision in the canons by which those who are the subjects of its investigation can cause these proceedings to be made public and can demand a copy of the record of such proceedings.
In order to make a finding of probable cause to put the accused bishop on trial, two-thirds of the board of the inquiry must agree to the finding. Only a majority of the whole board of inquiry is required under the Rwandan disciplinary canons and the PECUSA disciplinary canons from which their provisions were adapted. Only a majority of the members of a Church of England commission is required for a finding of a complaint being founded. Requiring two-thirds of the board of inquiry to concur with a finding of probable cause reduces the likelihood that a bishop accused of apostasy from the Christian faith, heresy or false doctrine, abuse of ecclesiastical power, or other offenses will be brought to trial.
In the adoption of the Rwandan method of appointment of members of the Board of Inquiry in Canon IV.4.2-5 we see a strong intimation of the arrogation of metropolitical authority to the Archbishop to which I refer in the introduction to this article.
The Board of Inquiry that can be appointed under provisions of Canon 56 does bear some similarity to the commission that can be appointed under the provisions of the Church Discipline Act of 1840, suggesting that this Board of Inquiry may have evolved from this type of commission appointed to investigate a charge or report of misconduct involving a clergyman of a diocese. The latter resembles an English coroner’s juror sworn to examine evidence, hear testimony, and render a verdict in an coroner’s inquest on a body supposed killed by violence, accident, or foul play, or an English grand jury inquiring into indictments, or written accusations, laid before the grand jury before they go to trial.
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.
Religion can influence suicide rates, a new study shows. While data have long shown that Protestants are more likely to commit suicide than Catholics, the relationship remains little understood. The study by Professors Sascha Becker (University of Warwick, U.K.) and Ludger Woessmann (University of Munich, Germany) demonstrates a causal link between Protestantism and suicide.
Becker and Woessmann sought to find whether the higher suicide rate among Protestants was due to self-selection. There could be some factors that influence whether a person chooses Protestantism versus Catholicism which also influence the likelihood that they will commit suicide.
Protestants have higher suicide rates than Catholics, "but, whether that is because they act from a religious perspective is a different story," Becker explained in a Monday interview with The Christian Post. "People might say that they become Protestants, not to commit suicide, of course, but they might elect to become Protestants for all kinds of reasons that happen to correlate with suicide behavior."
In other words, Becker and Woessman wanted to understand whether the relationship between Protestantism and high rates of suicide was causal or coincidental, and found it was causal. Keep reading
