The Making and re-making of Episcopal Canon Law draft4

The Making and re-making of Episcopal Canon Law

Robert W. Prichard

Before examining the current proposals and counterproposals about the relationship of the Episcopal Church to the Anglican Communion, it may be may be wise to reflect on earlier periods in which that relationship has been altered.  It could be argued that the three most important such periods in the history of the Episcopal Church in which such change took place were:  the American Revolution, the years following World War I, and the 1960s.  The first of these three periods was perhaps the most radical, an attempt to revise English canon law in light of American democratic ideals. The second of these periods of reform was perhaps the most sweeping; Episcopalians of the early 20^th century attempted to replace a set of individual provisions with a comprehensive code of canon law. The third period of revision—during the 1960s—is an important realignment made in recognition of the increasing complexity of the Anglican communion.

Constitution and Canons for a new Democracy

Later in the conference we will be talking about the precise details of the Constitution and Canons that were adopted by the Episcopal Church in the period from 1785 to 1789. At this point I do not what to enter into that very important conversation. What I would like to do is to step back and simply consider the importance of the fact that a set of constitutions and canons were adopted at all.

It is easy for contemporary Americans to overlook the degree to which William White (1748-1836), the first bishop of Pennsylvania and the longest serving Presiding Bishop (1789, 1795-1835), and his colleagues departed from the English model of church organization that they inherited. Americans, after all, declared their interest in preserving “the religious principles of the Church of England,” and they continued to use much of the same terminology as their English co-religionists.¹ Nevertheless, they create a church quite unlike that of England.

Apologists for the Episcopal Church often overemphasize the degree to which the revised Episcopal Constitution of 1789 and the U.S. Constitution of the same year were the product of the same personnel and based upon the same principles. What is true, however, is that the deputies who gathered in General Convention and the representatives who gathered in the Continental Congress faced a similar problem. They sought to reduce to written form systems of government, at a time when the British example on which they could build lacked a written constitution. The Church of England, like the English Parliament as a whole lacked a written constitution.

There were also limits to the concrete example that could be provided by the Church of England. That church had a theoretical system of clergy convocations. Both the provinces of Canterbury and York had a history of gatherings of bishops and clergy in “two-house” assemblies), but the convocations had not met since 1717 and would not meet again until the mid-19^th century.² Americans could not turn to the Church of England for a contemporaneous model of church organization.

The Church of England did, to be sure, have a canon law code-- a set of 141 canons prepared largely by Bishop Richard Bancroft, presented to the Convocation of Canterbury during the winter of 1603-04, and approved by James I in April 1604. The canons, however, were largely a response to the specific conditions and debates of the English Church in the early years of James I, which the English had make no attempt to revise or update in the intervening two centuries. (No attempt at revision would be made until 1865, and the code itself would not be replaced in England until 1969.³) The code did not contain a succinct statement of polity or doctrine, and individual provisions were often stated in the negative.

These English canons were divided into eight sections. The first (canons 1-12) concerned general principles of the Church of England, and particularly the role of the monarch and the suppression of dissent. It was followed by sections on worship (13-30), ordained ministry (31-76), school masters (77-79), church buildings and lands (80-88), lay leadership (89-91), church courts (92-138), and synods (139-141).

The Americans drew on only 11 of these 141 canons—three for the constitution and eight for the canons. The three articles in the constitution based at least in part on English Canons were Article VIII on the “use of the Book of Common Prayer” (English Canon 14 on “prescript forms of divine service”), Article VII on “Examination and Ordination” (English canon 35 on the “examination of such as are to be made ministers”), and Article I on the General Convention (English Canon 139 on “a National Synod”). Roughly half of the canons adopted in 1789--8 of 17—were based at least in part on English antecedents. The English canons on which they relied were 13 (on keeping the Sabbath), 26 (which paralleled the Book of Common Prayer provision about exclusion of certain persons from communion), 31 (on the time of the year for ordination), 33 (on the positions to be held by clergy), 34 (on candidates for ordination), 55 (which directed clergy not to use extemporaneous prayers before the sermon), 70 (on keeping registers of baptisms, marriages, and burials), and 75 (on “Sober Conversation” of clergy).

What is striking here is not the degree on which the Americans relied on the previous English canons, but the degree to which they omitted legislation on whole areas covered by the English canons. The combined number of articles in the constitution (nine) and canons (seventeen) in the Constitution and Canons of the Episcopal Church was less then 20% of the number of English Canons of 1603-04. Americans did not rely at all upon any of the material in four of the eight sections in the English canons: those concerning general principles, schoolmaster, church buildings and property, and lay leadership. In the place of a provision for a national court system, they specifying only that “the mode of trying Clergymen shall be instituted by the” state convention.⁴

Americans were in part able to adopt this minimalist system because of their reliance on something that the Church of England lacked: a system of diocesan constitutions and canons. To this day the dioceses of the Church of England (with the sole exception of the Diocese in Europe, the British equivalent of the Episcopal Church’s Convocation of Churches in Europe) have no diocesan constitutions and no diocesan canon laws.⁵ In contrast, the Americans produced a constitutional system in which the national General Convention assumes the existence of diocesan constitutions (which provide for the election of bishops and deputies who serve in General Convention) and canons (which addressed the many issues such as discipline that were not covered in national canons).

In summary, the American Episcopalians adopted a constitution (which the Church of England lacked), a body of national canons (which covered only a small percentage of the material covered in the English canons of 1603-04), and a system of diocesan constitutions and canons (which are lacking to this day in the Church of England). The also omitted comment on a number of issues—issues to which subsequent General Conventions would return.

The Early 20^th Century

Episcopalians of the early 20th century looked at their Constitution and Canons with a very different set of eyes. Episcopalians of the period were convinced of the need to reorganize their church along the lines of what they referred to at times as “business-like methods”—i.e. the techniques of centralized leadership and planning being used to build the large corporations and financial conglomerates of the time.⁶

The recasting of the Constitution and Canons was done in two stages. The first stage was the work of a long-running joint committee (i.e. one with members of both the House of Bishops and the House of Deputies) which completed it work o the constitution at the General Convention of 1901 and its work on the Canons at the General Convention of 1904.⁷ As the committee set out to give more business like shape to the Constitution and Canons, it identified three sub-goals:

(1) of rendering [the Constitution and Canons] more entirely harmonious and freeing them from ambiguities; (2) of adapting them to the greater enlargement and growth of the Church; and (3) of clothing them with such accuracy and precision of language as to relieve the Digest from the technicalities and objections which are made to its phraseology by jurists and canonists.⁸

The reference to jurists and canonists make it clear that the members of the General Convention Joint Committee were aware that they were not working in a vacuum. By the 1890s, when the joint committee began its work, there were a growing number of Episcopal authors who wrote on canon law. Among them were Murray Hoffman (Ttreatise on the Law of the Protestant Episcopal Church in the United States, 1850), Francis Vinton (A Manual Commentary on the General Canon Law and the Constitution of the Protestant Episcopal Church in the United States, 1870), John Wallingford Andrews (Church Law; suggestions of the law of the Protestant Episcopal Church in the United States of America, 1883), George H. Humphrey (The Law of the Protestant Episcopal Church, 1890); William Stevens Perry (The general ecclesiastical constitution of the American Church, 1891); and Edwin Augustine White (American Church Law, 1898).

The Church of England had attempted, unsuccessfully, to revise its canons in the period from 1874 to 1879 and had in the process produced a model set of canons.⁹ A unsuccessful proposal made in by the joint committee in 1895 that would have changed the name of the General Convention to the General Synod (the preferred name in England for a church assembly) made it likely that member of the joint committee were aware of the English effort.¹⁰ As their work drew to a close in 1904 members of the committee would have become aware of another canonical effort; in that year Pope Pius X would call for a “collecting the laws of the universal church, in a clear and concise order, and adapting them to the conditions of our time.” Pius’s call would lead to a collection and reformulation of the Roman Catholic canons, which would be completed in 1914 and promulgated in 1917.¹¹

The General Convention of 1901 adopted a revised constitution. The joint committee met for three more years and submitted its final report on the revision of the canons in 1904.

Some of the committee’s ideas for revising the Constitution and Canons, such as the suggestion made in 1901 that the position of presiding bishop be made elective rather than based on seniority by age of consecration, were rejected. Others, such as the addition of provisions that would allow for the creation of a national court of review, provide for a more proportional form of representation, and create provinces, were provided for in the new constitution, but not enacted by the adoption of enabling canons. Still other suggestions were adopted, such as expanding the constitution with material previously in the canons, increasing the complexity of the church’s court system, adding a description of the work of diocesan standing committees, and reworking the canons for missionary dioceses.¹²

The joint committee issued its final report in 1904. The committee had not been successful in all of its proposals, but it had served long and hard. In addition Eugene Augustus Hoffman, who was the Dean of the General Theological Seminary, secretary of the joint committee, and a leading force in its work, had died in 1902.¹³ The committee was not reappointed. Individual members of the convention would continue to submit proposed canonical changes, but without the joint committee the effort to overhaul the canons came to a halt.

The revisions of 1901-04 modified some of the innovations of the Constitutions and Canons of 1789. In contrast to the English canons of 1603-04, which said a great deal about church discipline, the documents of 1789 had been silent on the composition of diocesan courts and had made no provision for national courts of review.¹⁴ The Generals Conventions of 1901 and 1904 would specify the composition of courts, provide for provincial courts of review, and allow for the possibility of an “ultimate Court of Appeal, solely for the review of the determination of any Court of Review on questions of Doctrine, Faith, or Worship.”¹⁵ The Constitutions and Canons of 1789 had been silent (with the exception “incidental” references to the Standing Committee in several canons) on lay leadership, a topic about which the English canons had much to say.¹⁶ The revised Constitution and Canons of 1901-04 added a reference to the Standing Committee in the constitution, added a new canon on the role of vestries, expanded a canon on “Regulations Respecting the laity,” and rewrote a canon on lay readers that had been first introduced in 1871.¹⁷

The second stage of early twentieth-century revision took place in the period from 1916 to 1919. Business practice may have led Episcopalians at the beginning of the century to propose a revision of canons; a new circumstance—the First World War—reinforced the value of unified action and centralized leadership. The General Conventions of 1916 and 1919 adopted further changes, including the earlier unsuccessful proposal to make the office of presiding bishop elective.¹⁸

Another amendment to the constitution approved by the two successive conventions allowed a bishop elected “to an office created by the General Convention” to retain seat and voice at General Convention. New canon 60 of 1919 created a centralized governing structure (the Council, renamed the National Council in 1922) that replaced the maze of overlapping volunteer bodies by which the church had operated to that point.

Edwin Augustine White had been one of the “jurists and canonists” of whom the joint committee of earlier in the century had taken note. By 1919, he was a venerated senior scholar of the Church and the chair of the House of Deputies’ committee on Canons.¹⁹ The convention in that year called for the creation of a definitive commentary on the constitution and canons.²⁰ White became the author of that commentary, which appeared in 1924. He regarded the decision to make to create a national Council that worked with the presiding bishop as one of the most significant decisions made in the history of Episcopal canon law.

Canon 60 of 1919 [on the National Council], with the amendments made by the Convention of 1922, undoubtedly marks a greater change in the polity of the American Church than any other Canon ever enacted by General Convention, and is one of the greatest pieces of constructive legislation, if not the greatest, ever enacted by the body since the first General Convention of 1789.

The American Nation and the American Church both began their national life at precisely the same time. In the beginning, one was a Confederation of independent Sates, and the other, to some extent, a Confederation of independent Dioceses. In both cases, there was a strong opposition to any form of centralized government. In each case, there was as little of executive authority provided for as conditions would permit. But the parallel between the Nation and Church ceases soon after the beginning of each. Gradually, there was either granted to the executive branch of the National Government, or else assumed by it, additional power and authority, until, today, se have one of the strongest forms of centralized government in the world. But the Church did not keep pace with the Nation in this matter. The Church began her National life with practically no executive head, and with no central governing power, save only General Convention, meeting once in three years, and whose functions were chiefly legislative, not executive.

As she began, so she continued in great measure for one hundred and thirty years, until the General Convention of 1919, when in one fell swoop she discarded all her past traditions in the matter of executive government, and by the enactment of Canon 60, erected a strong form of centralized government. To one central body the Church committed the administration of her work, giving to the Presiding Bishop and the National Council, as now named, not only the performance of such work as the General convention may commitment to that body, but also the power to initiate an develop such new work as it may deem necessary.²¹

The creation of the National Council and provision for the election of the Presiding Bishop added an element that the joint committee at the start of the century had desired but had been unable to attain. The more modern, centralized, business-like church structure that they had created now had a stronger executive power and, no incidentally, a polity that more closely approached the English model from which the Episcopal Church had departed in 1789.

The semi-official publications of the Episcopal Church took note of the shift in the role of the presiding bishop. The Living Church Annual & Churchman’s Almanac used the title of “Rt. Rev” (the title of a bishop) of the presiding bishop through 1919 and listed him as the chairman of the House of Bishops. Beginning in 1920 it switched to “the Most Rev.” (the designation for an Archbishop).²²

Edwin Augustine White’s 1924 commentary on the canons had an underlying theme that also stressed the relationship of the Episcopal Church to the Church of England. As he had explained in his Church Law (1898), Edwin Augustine White believed that “the English Ecclesiastical law in force at the time of the colonization of America, so far as it is applicable to our condition and circumstances, and not superseded by enactments of our own, [forms] the Common Law of the Church in the United States.”²³ The movement toward greater conformity with English canon law was thus two-fold: it involved both the creation of a more centralized executive, which had been lacking in the colonial constitution and canons and the propagation of a theory (through the adoption of a text on the canons by an author with a particular point of view) of the continuing efficacy of English Canon Law.

The Church in a Big World

The third period of change was in the mid 1960s, and was the result of a shift in the global character of Anglicanism. In August of 1963 the Anglican Congress (an occasional unofficial gathering of Anglican clergy and laity) met in Toronto. Roughly a thousand delegates attended from throughout the Anglican world.²⁴ Many came from churches in newly independent or soon to be independent former British colonies in Africa and Asia. The official report of the gathering, titled Mutual Responsibility and Interdependence in the Body of Christ, noted this broad constituency and commented that

In our time the Anglican Communion has come of age. Our professed nature as a world-wide fellowship of national and regional churches has suddenly become a reality—all but ten of the 350 Anglican dioceses are now included in self-governing churches, of one blood with their own self-governing regions and peoples. The full communion in Christ which has been our traditional tie has suddenly taken on a totally new dimension. ²⁵

The report when on to cite “three central truths at the heart of our faith.” The third was the conviction that “the time has fully come when this unity and interdependence must find a completely new level of expression and corporate obedience.”²⁶ That new level involved both a change in vision about mission (cooperative ventures replaced an earlier colonial pattern in which sending nations decide what need to be done and where) and a reconfiguring of structure of the Anglican Communion that was already in process when the Anglican Congress met.

The Lambeth Conference (a gathering of Anglican bishops world-wide once each decade) had created the Advisory Council on Missionary Strategy in 1948 and the Lambeth Consultative Body in 1958.²⁷ Both bodies were composed primarily of archbishops or presiding bishops.²⁸ The developed world was more heavily represented than what were then being called “the young churches” of the Southern Hemisphere. The Lambeth Consultative Body, for example, had 5 seats for the British Isles, and one each for the US, Canada, Australia, and New Zealand, but only 3 for all of Africa.²⁹ At the Lambeth Conference following the Toronto meeting, both of these bodies were replaced by the Anglican Consultative Council (ACC) with a wider representation that included lay persons and priests or deacons, as well as bishops. The Episcopal Church was one of six national churches or provinces entitled to 3 seats on the ACC. Lambeth 1968 drafted a constitution for the ACC and asked provinces of the Anglican Communion to approve it.³⁰

The creation of this body required no canonical change in the Episcopal Church’s Constitution and Canons, but it did have implications nonetheless, for someone needed to appoint the three representatives to the ACC, and someone needed to respond to the request for approval of the ACC constitution. By 1980 it was clear that the Presiding Bishop pf the Episcopal Church would appoint with the ACC representatives, with the consent of the Executive Council (the name adopted in 1967 for what had been named the National Council in 1919).³¹

An additional development in the Anglican Communion had taken place in 1960, which would bring the Episcopal Church into closer relationship with the Anglican Communion. In that year Stephen Bayne, former Bishop of Olympia in the U.S., had accepted a position as the first Executive Officer or the Anglican Communion, a position later renamed as “Secretary General.” Bayne served until 1964. The fourth person to hold the position, Samuel Van Culin who became Secretary General in 1983, was also an American.

The General Convention of 1964 and 1967 responded to the call of the Anglican Congress in Toronto that it was time for “the rebirth of the Anglican Communion, which means the death of many old things but—infinitely more—the birth of entirely new relationships.”³² The Presiding Bishop set up a Committee on Mutual Responsibility, which reported to both conventions. The 1964 Convention adopted a resolution proposed by the committee that resolved

That this Church, speaking through its episcopate and its duly elected representative in the lay and clerical orders in General Convention assembled, accept the message of the Primates and Metropolitans of the Anglican Communion entitled, “Mutual Responsibility and Interdependence in the Body of Christ”, as a declaration of God’s judgment upon out insularity, complacency, and defective obedience to Mission; and be it further

Resolved, the House of Deputies concurring, That this Church undertake without delay that evaluation and reformation of our corporate life, our priorities, and our response to Mission, which is called for by the leaders of the Anglican Communion its resolution.³³

The General Convention made an important change in the Constitution and canons at the 1964 Convention, which was then confirmed in the convention of 1967. The General Convention completely rewrote the Preamble of the Constitution in order to reflect the Episcopal Church’s place within the Anglican Communion. While not a direct proposal from the MRI committee, it did reflect the goals and values of the Toronto gathering. The new preface read:

The Protestant Episcopal Church in the United States of America, otherwise known as The Episcopal Church (which name is hereby recognized as also designating the Church), is a constituent members of the Anglican Communion, a Fellowship within the One, Holy, Catholic, and Apostolic Church, of those duly constituted Dioceses, Provinces, and Regional Church in communion with the See of Canterbury, upholding and propagating the historical Faith and Order as set forth in the Book of Common Prayer.³⁴

The 1967 General Convention also expanded the role of the Presiding Bishop in a rewritten Canon 2, section 4. The Presiding Bishops was thereafter identified as “the Chief Pastor” of the Church and given the responsibility to visit every diocese of the church, that is to say, that the pastoral element of ministry of an archbishop that was lacking in the 1919 creation of a central executive was now added.³⁵

A proposal made at the 1967 General convention to also append the title “Archbishop” to the description of the role of the Presiding Bishops was unsuccessful, but moves in the direction of treating the presiding Bishop more like the Archbishops in other provinces did take root in the following two decades. The Book of Common Prayer of 1979 included for the first time mandatory prayers for the Presiding Bishops within the Prayers of the People in the Eucharist. The 1982 General Convention amended Canon 2, section 4 to note that the Presiding Bishops was a “primate,”³⁶ The editors of the General Convention Journal for that year finally followed the practice that the Living Church has adopted in the 1920s and began to style the Presiding Bishop as the Most Reverend, the designation reserved for Archbishops.³⁷

The Commission on Structure that recommended the change in the description of the office of the presiding bishop in 1967, summed up the direction of changes of that decade by referring back to the Anglican Congress in Toronto and its doctrine of Mutual Responsibility and Interdependence:

A clarifying understanding is now discernable through the Church. This is that the initial five-year period referred to the Document [Mutual Responsibility and Interdependence in the Body of Christ] (1963-68) is now generally recognized for what it was intended to be: a time of transition within the Anglican Communion when our widely separate paths would come closer together; a time when we would be developing new patterns of relationship; a time when we would see ourselves growing from a fellowship of Churches to a fellowship within the Church of God; a time of emergency when new assistance must be transmitted to the younger Churches.”³⁸

Changes in this period were not so much an attempt to conform the U.S. to an English pattern as they were a participation in a rethinking of the whole idea of an Anglican Communion.

Concluding Thoughts

We have looked at three moments in the history of Episcopal Canon law: the initial effort to create a Constitution and Canons following the American Revolution, the attempt in the years before and after World War I to create a more comprehensive system of church law and a more modernized and centralized executive, and the effort in the 1960s to recognize the international character of the Anglican Communion. It is always dangerous to speak about a movement or trajectory to history, so please take what I am going to say with appropriate skepticism. I think that what we have seen is a movement away from an early minimalist view of authority to a more comprehensive form of government that is both more centralized in the U.S. and plays a wider role in the Anglican Communion.

One of the interesting things about the current moment in the Episcopal Church is that the two movements that have long gone side by side—more centralized authority in the U.S. and deeper relationship with other Anglican church—seem now to be set at odds against one another.