History of the "Abandonment of Communion" Canons

This will be a long post. I am breaking it into two parts, the first of which deals with the history behind the adoption of the "abandonment of communion" canons, and the second of which will deal with the recent trend to use them in lieu of filing presentments---a practice which many Church chancellors agree is an abuse of their intended purpose. One has only to look at the original act which brought the canons into being---the departure of a Bishop to join the Roman Catholic Church---to see that they deal with completed actions that have resulted in a full departure of the person in question from this Church and from the Anglican Communion of which it is a constituent member. They are not meant to be applied to ongoing actions within the body of the Anglican Communion as a whole resulting from a disagreement over actions taken in General Convention, or to actions which can be dealt with in a presentment, or by other disciplinary means. Those actions call for a trial or other hearing, with confrontation of witnesses and the presentation of both sides of a case. Those procedural steps are unnecessary in cases of true abandonment, and so the canon does not use them. But it is just that feature of the abandonment canons that has made their abuse so tempting: the authority bringing the charges does not have to prove anything at a trial.

For the first 182 years of its existence, the Church of England in America was treated as part of the jurisdiction of the Bishop of London. For various hierarchical reasons, no Bishops were consecrated in America until after the Revolutionary War, and sources on the early history of the Church in America tell us that this was a problem---not just because there could be no ordinations and confirmations, but because there was no discipline imposed on wayward clergy. "Drunkenness, adultery, polygamy, fighting, profanity, lying, and swindling are among the crimes which their brethren did not hesitate to impute to [clergy in the Colonies]," according to one early account. As a consequence, the first General Convention of 1789 enacted Canon 13, which read as follows:

No ecclesiastical persons shall, other than for their honest necessities, resort to taverns, or other places most liable to be abused to licentiousness. Further, they shall not give themselves to any base or servile labor, or to drinking or riot, or to the spending of their time idly. And if any offend in the above, they shall be liable to the ecclesiastical censure of admonition, or suspension, or degradation, as the nature of the case may require, and according to such rules or process as may be provided, either by the General Convention, or by the Conventions in the different States.

The General Convention of 1801 enacted its own Canon 1, as follows:

If any person, having been ordained in this Church, or having been otherwise regularly ordained and admitted a minister in this Church, shall discontinue all exercise of the ministerial office without lawful cause, or shall avow that he is no longer a minister of this Church, or shall live in the habitual disuse of public worship, or of the Holy Eucharist, according to the offices of this Church---such person, on due proof of the same, or on his own confession, shall be liable to be degraded from the Ministry.

This Canon was combined in 1808 with Canon 13 of 1789, and as such was used in 1815 to depose the Rev. George Dashiell, who had left the Church to form the "Evangelical Episcopal Church", a splinter group which made no effort to maintain communion. Eventually, as we shall see, the "abandonment" portion of the Canon was split off to deal with the special case of a Bishop in 1853, and there followed a separate canon to deal with "abandonment" by priests and deacons. The remainder of the disciplinary Canon evolved over time into the present-day Canon IV.1, which provides for the presentment and trial of a Bishop, Priest, or Deacon of the Church accused of a crime, immorality, heresy, or violation of the rubrics of the Book of Common Payer, or the Constitution and Canons of the Episcopal Church or of the relevant Diocese, or of the person's ordination vows. Thus the initial prohibition against "abandonment" merged for a while into the general provisions for presentments and trials in the case of specified offenses, and then was again separated in order to dispense with the need for a trial when a Bishop, priest or deacon had clearly abandoned his duties in the Episcopal Church to pursue a relationship with other religious bodies not in communion with the Episcopal Church.

The Protestant Episcopal Church of the United States of America (and its predecessor, the Church of England in the Colonies) had managed for 246 years without any need for a canon dealing with "abandonment of communion" by a Bishop. The issue first arose on account of the Rt. Rev. Levi Silliman Ives, one of the most respected bishops in the Church and a leader of the "Oxford" or "high church" movement in America, who served as the second Bishop of North Carolina from 1831 to 1852. Originally a Presbyterian, he had converted to the Episcopal Church after receiving a copy of the Book of Common Prayer as a gift from a fellow clergyman, and rapidly rose to a position of leadership. He was just thirty-four years old when he was elected bishop of the struggling Diocese of North Carolina, with only sixteen congregations and nine hundred communicants. Roads to the interior were barely passable, but Ives was constantly on the move in his Diocese, establishing new parishes and even a monastic community in the hills of Western North Carolina, called Valle Crucis. He was the recipient of much criticism in his Diocese for the Oxfordian rites, prayers and vestments he introduced at the monastery and elsewhere, and he began to absent himself from diocesan conventions due to illness. A report prepared for the convention of 1851 found that for several years the Bishop had been in a state of "mental excitement that had impaired his memory and judgment."

In the summer of 1852, Ives asked for and was given a leave of absence on grounds of poor health. He set sail with his wife for Europe in the fall. Rumors soon reached North Carolina that Bishop Ives had converted to Catholicism. On December 22, 1852 Ives wrote a letter to the Diocese resigning his see. Shortly thereafter he was received by Pope Pius IX.

Although he resigned as Bishop of North Carolina, Ives had not resigned from the House of Bishops. At the General Convention of 1853, a new canon (Canon 1 of that year) was adopted to deal with this problem. It read as follows (canonical history taken from E. A. White & J. A. Dykman, Annotated Constitution and Canons for the Government of the Protestant Episcopal Church in the United States of America, Vol. II (1981 ed.):

In all cases where a Bishop, Presbyter, or Deacon of this Church, without availing himself of the provisions of Canon 2 and 5 of 1850, has abandoned her Communion or shall hereafter abandon it, either by an open renunciation of the Doctrines, Discipline and Worship of this Church, or by a formal admission into any religious body not in Communion with the same: such Bishop, Presbyter, or Deacon shall be held, ipso facto, as deposed to all intents and purposes; and shall thereupon be pronounced deposed; if a Presbyter or Deacon, by the Bishop having jurisdiction, with the consent of the Standing Committee; and if a Bishop, by the Presiding Bishop, with the consent of the majority of the Members of the House of Bishops. And notice of such deposition shall be given as in like cases.

Immediately on the enactment of this Canon at the General Convention of 1853, a vote was taken in the House of Bishops, and Bishop Ives was deposed. The same Convention also enacted Canon 2 of 1853, providing a three-month period for any priest to show cause why he should not be deposed once charged with abandonment. At the General Convention of 1856 an attempt to amend the Canon, which was generally recognized as imperfect and hastily drafted, was rejected by the House of Bishops, and it was not revised until the General Convention of 1859. As part of a reorganization of the canons adopted at that Convention, the revised Canon was renumbered Title II, Canon 8; it read as follows:

If any Bishop, without availing himself of the provisions of Section 16 of Canon 13 of Title 1, abandon the Communion of this Church, either by an open renunciation of the doctrine, discipline, and worship of this Church, or by formal admission into any religious body not in communion with the same, it shall be the duty of the Standing Committee of the Diocese to make certificate of the fact to the Senior Bishop, which certificate shall be recorded, and shall be taken and deemed equivalent to a renunciation of the Ministry by the Bishop himself.

Notice shall then be given to said Bishop by the said Bishop receiving the certificate that unless he shall, within six months, make declaration that the facts alleged in said certificate are false, he will be deposed from the Ministry of this Church.

And if said declaration be not made within six months as aforesaid, it shall be the duty of the Senior Bishop with the consent of the majority of the House of Bishops, to depose from the Ministry the Bishop so certified as abandoning, and to pronounce and record, in the presence of two or more Bishops, that he has been deposed.

Provided, nevertheless, that if the Bishop so certified as abandoning, shall transmit to the senior Bishop a retraction of the acts or declarations constituting his offense, the Bishop may, at his discretion, abstain from any further proceedings.

A parallel canon (Canon 6 of 1859) was enacted to cover priests and deacons, with identical provisions for a six-month period to recant or disprove, and for the deposition to be pronounced by the diocesan Bishop in the presence of two or more priests. In these revisions we see the introduction of several elements that have been carried down to today: a certification of abandonment by a committee of clergy and laity; notice to the Bishop, Priest or Deacon before he is deposed and a time period within which to contest the charges; and in the case of a Bishop, a vote by a majority of the whole House of Bishops to consent to deposition; and certification of the deposition by the Presiding Bishop (or diocesan, in the case of clergy) in the presence of two other bishops (or priests, in the case of clergy) as witnesses.

This revised Canon received its first test in November 1873, in connection with the events that led to the formation of the Reformed Episcopal Church. This movement was led by the Rt. Rev. George D. Cummins (the name is frequently misspelled, even on REC sites, as "Cummings"), the assistant Bishop of Kentucky, in reaction to the "high church" movement of which Bishop Ives had been such an advocate. Bishop Cummins objected strongly to the pomp and pageantry introduced by the Oxfordians, and crossed diocesan boundaries in his crusade to rescue the Church from what he saw as "Ritualism". On November 10, 1873 Bishop Cummins resigned his position in a passionate letter written to his diocesan, the Rt. Rev. Benjamin Bosworth Smith, who also happened to be the Presiding Bishop. Although he stated that he found it necessary to "leave the communion in which I have labored in the sacred ministry for over twenty-eight years," he did not expressly resign his position in the House of Bishops, and thereby created an ambiguity which forced the Presiding Bishop to act. Reading Canon II.8 as permitting a vote without a meeting, Presiding Bishop Smith polled his colleagues by mail, and once he had received a majority of consents, he pronounced Bishop Cummins deposed on June 24, 1874. (There was some need for expediting the process, since Bishop Cummins was proceeding to consecrate new Bishops to the Reformed Episcopal Church in the meantime [scroll to the bottom of the link].) The legality of the deposition was attacked, and the leadership of the Church was sensitive to the charge because a deposition of one of the ministers who had been instrumental in organizing the Reformed Episcopal Church had been ruled invalid by the Illinois state courts for failing to follow canonical procedures. (Subsequently, however, the trial court's injunction was dissolved by the Illinois Supreme Court---too late, however, for the canonical court to resume its proceedings.) Consequently a new Canon was proposed and adopted at the General Convention of 1874, which required that a vote to consent to deposition be taken at a meeting of the House of Bishops convened expressly for that purpose. The canon was also drafted so as to include, for the first time, a provision "suspending" (i.e., inhibiting) the Bishop charged with abandonment from the ability to perform episcopal acts pending the resolution of the charges against him:

If any Bishop, without availing himself of the provisions of Section 16 of Canon 13 of Title I, abandon the Communion of this Church, either by an open renunciation of the doctrine, discipline, and worship of this Church, or by a formal admission into any religious body not in communion with the same, or otherwise, it shall be the duty of the Standing Committee of the Diocese of said Bishop to make certificate of the fact to the Presiding Bishop, together with a statement of the acts or declarations which prove such abandonment, which certificate shall be recorded by the Presiding Bishop; and the Presiding Bishop with the consent of the three Bishops next in seniority, shall then suspend said Bishop from the exercise of his office and Ministry until such time as the House of Bishops shall consent or refuse to consent to his deposition ; and in case the Bishop so abandoning the Communion of this Church be the senior Bishop, the Bishop next in the order of seniority shall be deemed to be and shall act as the Presiding Bishop under this Canon.

Notice shall then be given to said Bishop by the Bishop receiving the certificate, that unless he shall, within six months, make declaration that the facts alleged in said certificate are false, and shall demand a trial, he will be deposed from the Ministry. And if such declaration be not made within six months, as aforesaid, it shall be the duty of the Presiding Bishop to convene the House of Bishops, and if a majority of the whole number of Bishops entitled at the time to seats in the House of Bishops, shall at such meeting give their consent, the said Presiding Bishop, or the senior Bishop present, shall proceed to depose from the Ministry the Bishop so certified as abandoning, and to pronounce and record in the presence of two or more Bishops, that he has been so deposed: Provided, nevertheless, that if the Bishop so certified as abandoning, shall transmit to the Presiding Bishop a retraction of the acts or declarations constituting this offence, the Bishop may at his discretion abstain from any further proceedings.

The suspended Bishop under this Canon also could not be rid of the charges just by denying them; he had to demand a trial. It would then be up to the Presiding Bishop to decide, in his discretion, whether to proceed to trial or not.

The first Bishop to be deposed under this amended Canon was the Rt. Rev. Samuel A. McCoskry, who had served for over forty years as the first Bishop of the Diocese of Michigan. He had submitted a letter of resignation to the House of Bishops in 1878 on grounds of ill health (he was 73 at the time), but before the House acted on his letter, charges affecting his moral character surfaced, and rather than defend himself against them, Bishop McCoskry left on a trip for Europe. This prevented the House of Bishops from investigating the charges and conducting a trial, so it was decided to use the newly amended abandonment canon instead, since he had left his Diocese with no date of return. At a meeting of the House called for the purpose in late August 1878 at Grace Church in New York City, however, there was trouble at first in obtaining a quorum. At least twenty members of the House were still absent in London at the Lambeth Conference of 1878. The account of the deposition in the New York Times describes how the meeting was adjourned from day to day until some absent members, who "were at their homes or sojourning at Summer resorts", could be summoned by telegraph, and so make the minimum number required for a deposition under the language of the Canon. (Before Bishop McCoskry's letter of resignation, there were 62 members in the House of Bishops in 1878. Although he could not resign his see without the consent of the House of Bishops, he could not be counted as among the members in establishing a "majority of the whole number of Bishops entitled to seats in the House of Bishops" to vote on his own deposition. Thus for the purposes of voting on his deposition, a quorum of the House of Bishops---and the required majority to depose under the Canon---was 31 members, and that is exactly the number of Bishops who the New York Times reports were present and voted unanimously to depose him. It would have done no good to go to all the trouble of getting a quorum if not everyone who made it up was prepared to vote for the deposition, because then the motion to depose would fail.) The deposition was voted on September 3, 1878, but the minutes of the deposition were not entered into the records until the next regular meeting of the House at the General Convention of 188o (when the Rt. Rev. Alfred Lee of Delaware, who succeeded the Rt. Rev. Benjamin Smith of Kentucky as Presiding Bishop in 1884, was presiding as the senior Bishop due to Bishop Smith's inability to attend on account of his age and infirmity).

In 1904, the General Convention approved another revision of the Canons, which renumbered the Canon we are concerned with to Canon 32. The first paragraph of the 1874 version was renumbered as Section 1, and amended to read as follows:

If a Bishop abandon the communion of this Church either by an open renunciation of the Doctrine Discipline or Worship of the Church or by formal admission into any religious body not in communion with the same or in any other manner it shall be the duty of the Standing Committee of the Diocese or the Council of Advice of the Missionary District of said Bishop to certify the fact to the Presiding Bishop and with such certificate to send a statement of the acts or declarations which show such abandonment which certificate and statement shall be recorded by the Presiding Bishop The Presiding Bishop with the consent of the three Bishops next in seniority shall then suspend the said Bishop from the exercise of his office and ministry until such time as the House of Bishops shall investigate the matter.

The former second paragraph was made into Section 2, to read as it does today (it is quoted below).

The next major deposition of a Bishop in the Protestant Episcopal Church of the United States of America involved the Rt. Rev. William Montgomery Brown, retired Bishop of Arkansas. In his later years, Brown had espoused the ideas of Marxism and Communism, and advocated the overthrow of the United States Government. Rather than being charged with "abandonment", he was put on trial and subsequently convicted and deposed in 1925 for maintaining heretical positions contrary to the "doctrine of the Church". His case is fascinating, and deserves to be the subject of a future post. Since there was no proceeding under the "Abandonment" canon, we will pass on a discussion of the case here.

At the General Convention of 1937, Section 1 of the Canon was slightly amended by changing the words "three Bishops next in seniority" to "three senior Bishops having jurisdiction in the United States". In 1973, the reference in Section 1 to Missionary Districts was deleted, and the Canon became numbered as Canon 9 of Title IV, its present designation. The 1979 General Convention approved amendments which made section 1 read as it does today:

Sec. 1. If a Bishop abandons the communion of this Church (i) by an open renunciation of the Doctrine, Discipline, or Worship of this Church, or (ii) by formal admission into any religious body not in communion with the same, or (iii) by exercising episcopal acts in and for a religious body other than this Church or another Church in communion with this Church, so as to extend to such body Holy Orders as this Church holds them, or to administer on behalf of such religious body Confirmation without the express consent and commission of the proper authority in this Church; it shall be the duty of the Review Committee, by a majority vote of All the Members, to certify the fact to the Presiding Bishop and with the certificate to send a statement of the acts or declarations which show such abandonment, which certificate and statement shall be recorded by the Presiding Bishop. The Presiding Bishop, with the consent of the three senior Bishops having jurisdiction in this Church, shall then inhibit the said Bishop until such time as the House of Bishops shall investigate the matter and act thereon. During the period of Inhibition, the Bishop shall not perform any episcopal, ministerial or canonical acts, except as relate to the administration of the temporal affairs of the Diocese of which the Bishop holds jurisdiction or in which the Bishop is then serving.

The major change to this section was the dropping of the catchall phrase "or in any other manner" in the definition of abandonment, and the introduction of a very specific prohibition against "exercising episcopal acts in and for a religious body . . . so as to extend to such body Holy Orders as this Church holds them, or to administer on behalf of such religious body Confirmation without the express consent and commission of the proper authority in this Church . . .". "Religious body" was defined so as to exclude "this Church or another Church in communion with this Church." This amendment was drafted to cover the actions of the Rt. Rev. Albert Chambers, retired, who had performed confirmations and consecrations for the Anglican Church in North America, for which acts the House of Bishops censured him in 1978. It was noted that the canons at the time were "unclear" on prohibiting such conduct, and the House also passed a resolution asking that a canon be prepared for adoption at the 1979 General Convention which would "provide a way for the Church to express itself clearly in the future when actions of a bishop threaten the discipline and order of the Church." The Committee on Ministry of the House of Bishops thus proposed the amendment which was adopted at the 1979 General Convention. It should also be noted that the current draft revision to this Canon (to be considered at the General Convention of 2009) proposes to add back in the catchall phrase ("or in any other way") which the revision of 1979 deleted. (Scroll down to the draft of Canon 16, section 1.)

Section 2, with its requirement that deposition occur only with the consent "of a majority of the whole number of Bishops entitled to vote, has remained unchanged since its amendment in 1904:

Sec. 2. The Presiding Bishop, or the presiding officer, shall forthwith give notice to the Bishop of the certification and Inhibition. Unless the inhibited Bishop, within two months, makes declaration by a Verified written statement to the Presiding Bishop, that the facts alleged in the certificate are false or utilizes the provisions of Canon IV.8 or Canon III.12.7, as applicable, the Bishop will be liable to Deposition. If the Presiding Bishop is reasonably satisfied that the statement constitutes (i) a good faith retraction of the declarations or acts relied upon in the certification to the Presiding Bishop or (ii) a good faith denial that the Bishop made the declarations or committed the acts relied upon in the certificate, the Presiding Bishop, with the advice and consent of a majority of the three senior Bishops consenting to Inhibition, terminate the Inhibition. Otherwise, it shall be the duty of the Presiding Bishop to present the matter to the House of Bishops at the next regular or special meeting of the House. If the House, by a majority of the whole number of Bishops entitled to vote, shall give its consent, the Presiding Bishop shall depose the Bishop from the Ministry, and pronounce and record in the presence of two or more Bishops that the Bishop has been so deposed.

One notes that the requirement that a full majority of all the Bishops entitled to vote in the House of Bishops---both active and retired (or "resigned", as they now say)---has been with us since the very first abandonment canon was adopted in 1853. [Update 05/10/08: The misinterpretations of this language to support the "depositions" of Bishops Cox and Schofield continue---see this post for a discussion.] I shall return to this legislative history in a later comment about the procedural violations that have occurred in the cases of Bishops Schofield and Duncan. But my next post (when it is ready) will show how the (ab)use of the abandonment canons has lately been greatly expanded, to the detriment of the Church and its polity.