The Sauls Memorandum Refuted (II)

In this post, I complete my rebuttal to the Memorandum sent to the House of Bishops by the Rt. Rev. Stacy F. Sauls, of the Diocese of Lexington. As in the previous post, the original text of the Memorandum is in black, and my comments are inserted in purple. The footnotes (numbers preceded by a *) appear at the end. This part takes up with the argument beginning on page six of the Memorandum.

MEMORANDUM (Continued)

. . .

(3) Evolutionary Context


In its evolutionary context, “the whole number of Bishops entitled to vote” (1904 language) must mean something different than “the whole number of Bishops entitled at the time to seats in the House of Bishops” (1874). 



The very fact you choose “Evolutionary Context” as a framework for your analysis shows how you have preordained what the outcome of that analysis will be: since “evolution” implies a change from something that is less fit for its environment to something that is “more fit,” you want to set up an argument that the deposition language “evolved” from (A) a requirement that all Bishops (both active and retired) decide the fate of a colleague who is to be deposed without a trial to (B) a requirement that “only those Bishops present at a meeting where there is a quorum” decide it. The latter requirement is, in your view from present-day hindsight, more adapted to the realities of today's Church politics. Unfortunately for that point of view, the actual history of the canonical changes does not support such an analytical framework. Indeed, while all else around it may be said to have "evolved", the current language of the Canon has been the same since it was first introduced.

The 1904 amendment was enacted as part of a process of comprehensive constitutional and canonical revision. One of those revisions was making allowance for suffragan bishops,*16 which were constitutionally
authorized for the first time in 1910 under Article II, Section 4 of the Constitution.*17 



Again, not so fast, Bishop Sauls: there precious little evidence in the record that the 1904 changes to Canon IV.9, which as you said earlier (in n. *13) were part of a comprehensive revision proposed originally in 1895, were drafted so as to allow for the recognition of suffragan bishops with a seat but no vote some fifteen years later. As White & Dykman make clear (p. 62), the proposal to allow suffragans grew out of a commission appointed by the General Convention of 1904, which did not report its recommendations until the Convention of 1907, and which finally saw those recommendations adopted in 1910. In light of the comments of Mark McCall on this point, I am withdrawing the earlier criticism I had that there was no evidence of any connection between these events at all. I will concede that there may have been some connection, but as we shall see, what evidence there is fails to support your contention that a change in substantive meaning was intended between the 1874 language and that adopted in 1904.

The contemporaneous constitutional revision of 1901 did not, however, extend the right to vote in the House of Bishops to suffragan bishops. Thus, suffragan bishops were legally entitled to seat and voice but not vote. 



The position of suffragan bishops was not authorized, as you just said in the previous paragraph, until 1910. So how can you say that “in 1901 . . . suffragan bishops were legally entitled to seat and voice but not vote”? The truth of the matter is that in 1901 (and until 1910), suffragan bishops were not authorized to exist at all.
(See the discussion of Canon 5 of 1829 in White & Dykman, p. 60. The canon was repealed in 1904, but the post of "suffragan" did not officially come into existence until the Constitution was changed in 1910.)

In these circumstances, it was necessary to amend the 1874 language of the abandonment Canon,*18 which had set the standard for
determining abandonment based on the number of bishops entitled to seat rather than those entitled to vote.



This is sophistry. Since suffragan bishops as such did not exist until 1910, there was no “necessity” to amend the 1874 language in 1904. Instead, every bishop who was entitled to vote on abandonment in 1903 continued to be entitled to vote on such questions after the 1904 changes, while suffragan bishops, who did not officially exist before 1910, were created with no right to vote on any matter before the House until 1943, as you state in your footnote *19. As Mark McCall indicates in his comment on TitusOneNine, the change from talking about "the right to seats in the House" to "the right to vote in the House" was a non-substantive change: both before it and afterwards, until the Constitutional amendment six years later, those Bishops with seats in the House were the same Bishops who had the right to vote in the House.

The operative phrase in the 1874 Canon for determining the standard for
determining abandonment, “a majority of the whole number of Bishops entitled at the time to seats in the House of Bishops,” was altered with this change in mind in two important ways. First, “to vote” replaced “to seats.” Indeed, before Suffragan Bishops became entitled to vote in 1943,*19 there were as many as 24 of them serving in the House of Bishops at one time,*20 which would have radically altered the standard for determining abandonment were it not for the 1904 amendment.



You continue here to build on your earlier fallacy. It was a canon that defined who voted on abandonment, but it was a Constitutional provision which gave suffragan Bishops a seat, but not a vote, in the House in 1910. So you are arguing, in effect, that while there was enough support to change the Constitution in 1910, there was not enough support to do so in 1904, and so the proponents settled in 1904 for a revision to the canon that could have no possible meaning until the Constitutional amendment passed in 1910. This is a fantasy constructed on a fallacy (post hoc, ergo propter hoc).

The 1901 constitutional amendment also deprived bishops resigning for nonconstitutionally specified grounds of both seat and vote, although the House itself, through Rule XXV, makes it possible for those resigned Bishops, when moral reasons are not involved in the resignation, to be granted seat and voice. 



This is a giant red herring that you have now introduced to the analysis. Since the Constitution as amended in 1901 defined who could have a vote in the House of Bishops, no provision in any “House Rule” or canon could override the Constitution and grant such person a vote just because he was given a seat.

House rules also make it possible to seat honorary and collegial Members (Rule XXIV) as well as guests (Rule XXVI). Guests with seat and voice, as opposed to honorary and collegial Members, are not entitled to be present during Executive Session. Again, were it not for the 1904 amendment to the abandonment canon, the presence of these non-voting Members would have an impact, potentially significant, in the determination of abandonment.



Simply not true. It was the 1901 constitutional amendment, defining who could vote in the House of Bishops, that determined who could vote thereafter on questions of abandonment, given the language of the Canon already in place. That language could not override the language of the Constitution; nor could the provisions of any rule of the House of Bishops. So if you want to draw conclusions about what actually happened, you should focus on the 1901 constitutional changes (proposed initially in 1898), and not on the changes made to the canon in 1904, which simply brought it into line with the Constitution as previously amended (and which used, as we shall see, identical language). (See also the comments of Brad Drell and Mark McCall on this point.)

Second, and very significantly, the 1904 amendment revised the 1874 language in one other crucial respect. The amended Canon omitted the important words “at the time” from the operative phrase as used in 1874. Their omission in 1904 meant that the standard for determining abandonment was not the whole number entitled at the time to vote, thus not requiring that those entitled to vote but not present at the meeting be counted as had been the case with respect to those entitled to a seat theretofore. It is a change that makes sense given the 1904 amendment’s decision to vest the responsibility for determining abandonment in the House as a body and not in the Bishops as individuals.



Total and utter sophistry. Elimination of the words “at the time” did nothing to change the meaning of the language as amended in 1904. The simplest way to see this is to compare the language of the section before and after.

 Here is the 1874 language:


. . . 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 . . .

Remember---throughout the nineteenth century and until 1910, if you were a "Bishop of the Church"---assisting bishop, provisional bishop, or whatever---you had a seat in the House and were entitled to vote. (White & Dykman, p. 18.) Thus in the terms of the 1874 language, there was no distinction between "having a seat" and "having the right to vote." Keeping this in mind, therefore, now look at the 1904 change to the language in Canon IV.9:

If the House, by a majority of the whole number of Bishops entitled to vote, shall give its consent . . .


Both versions require the same majority: a majority of all the Bishops in the House who were entitled to vote. (Bishops with seat but no vote were, as pointed out above, first created by the constitutional changes of 1910.) As we will note later, the 1904 language was taken from identical language used in the 1901 constitutional amendments, and was intended to express that an identical (super)majority was required on three types of questions requiring approval by the House: (1) changes to the Book of Common Prayer; (2) amendments to the Constitution, and (3) consent to the deposition of a Bishop for abandonment.

In context, then, it is highly likely that the canonical drafters in 1904, in choosing the language “whole number of Bishops entitled to vote,” did so with the primary intention of correcting the 1874 language so as to provide for the new potential (and actuality) of significant numbers of Members with seats but without vote and making the finding of abandonment an action of the House as a body and not of the individual bishops.



It can only be considered “highly likely” after you have manufactured the context in which you are analyzing the language of the Canon. Nothing needed "correcting" in 1904, apart from the minor matter of bringing the Canon into line with the 1901 Constitution by changing the word "seats" to "votes". To repeat: not one Bishop lost, and not one Bishop gained, the right to vote on questions of abandonment as a result of that change, and when the suffragan bishops were created, they were simply not extended that right until long afterward, in 1943. So nothing changed in that entire 90-year time period: in 1853, in 1874, in 1895, 1904 and again in 1910 and up until 1943, the number of bishops required to depose was a majority of “the whole number of Bishops entitled to vote” at any given time in the House. Furthermore, under your theory you have not accounted for what caused the supposed fear of increasing that number in 1904 to disappear in 1943, when suffragan bishops were given the right to vote. Ever since that time, despite numerous attempts to limit voting rights in the House just to active Bishops, none of which was ever adopted, the number of those allowed to vote, and hence the majority required for a deposition, has only increased, and not decreased (amendments of 1970 and 1982; White & Dykman, pp. 21-22). Your “evolutionary” reading of the canon advocates a very non-Darwinian, sudden and drastic chopping of that number by more than a factor of two---which goes completely against the trend of all the changes in voting that have been made since 1904.

(4) Analogous Provisions


Similar canonical language and situations support interpreting the phrase “whole number of Bishops entitled to vote” as meaning entitled to vote at that meeting. Canon IV.9 itself uses the phrase “all the Members” with respect to the Review Committee when it means a majority of the total number of Members and not the phrase “the whole number of Members.”

Are you saying that there is a difference in meaning between "all" and "the whole number"? Let’s try it out and see. What if, instead of reading: “ . . . 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 . . .” Canon IV.9.1 read this way: “ . . . it shall be the duty of the Review Committee, by a majority vote of the whole number of its Members, to certify the fact to the Presiding Bishop . . .”? It still reads the same to me, and so I do not see your point here.

The constitutional provision for defining a quorum for a meeting of the House of Bishops states: “A majority of all Bishops entitled to vote, exclusive of Bishops who have resigned their jurisdiction or positions, shall be necessary to constitute a quorum for the transaction of business.”*21 Similarly, both Canons I.12.2 (regarding Diocesan Standing Committees in some circumstances) and Canon V.3 (regarding bodies of General Convention) successfully define quorums with reference to all Members without using the word “whole” as an adjective even when using the word “whole” as a noun to describe the total number of Members for purposes of giving notice. The use of the word “whole” as an adjective is not necessary to define the set of Members necessary for a quorum, and since it is unnecessary for that purpose, cannot be held to require such an interpretation in Section 2 of Canon IV.9. Indeed, it has a different purpose therein.

Now you are stating the obvious as though it were a point in your favor (which it is not): the words used to describe a supermajority will of necessity be different from those used to describe a normal quorum. So as a result, there are differences in purpose between the passages that you compare, but they have nothing to do with the use of the words “all” or “whole”. (And by the way, the word “all” is not used either in the definitions of a quorum that appear in Canons I.12.2 and V.3, so your argument on this point fails to show anything more than the semantic equivalency of the two words---which, as I say, is not a point in your favor.)

And while we are on the subject of using other passages in the Canons as analogies, what about the language of Canon III.12.8 (d), which shows that the drafters knew how to describe when a Bishop's resignation could be accepted “by a majority of those present”? (Emphasis added.) Or what about the careful use of the phase “whole number of Bishops entitled to vote” in Articles X and XII of the Constitution as proposed in 1898 and approved in 1901? (See White & Dykman, pp. 134 and 140.) Did the language there mean that the Constitution could be amended, or a new Book of Common Prayer authorized, by a simple majority of those Bishops present at the meeting? To the contrary: as those Articles were adopted in 1901, they required exactly the same number of Bishops to approve constitutional and Prayer Book amendments as had been all along required to approve the deposition of a Bishop. And the stated purpose of the Constitutional amendments at the 1901 General Convention was to make it "more difficult" to approve changes to the Prayer Book and the Constitution---thereby evidencing that the standard for deposing a Bishop at that time was already considered a high one.

Those Articles were subsequently amended in 1937---but Canon IV.9.2 was not---to exclude from the required “whole number of Bishops entitled to vote” any “retired Bishops not present.” (Emphasis added.) Do you thus contend that by analogy, the words “not present” were superfluous, since the phrase “the whole number of Bishops entitled to vote” meant only those who were actually present anyway? To the contrary, again: the 1937 amendments to Articles X and XII are further proof that the drafters understood the phrase “the whole number of Bishops entitled to vote” to refer to all Bishops entitled to vote, whether present at the meeting or not.

So the arguments by analogy to other passages all count against you. There is not a single analogy to another passage in the Constitution or Canons which supports your special-case interpretation of Canon IV.9.

(5) The Actual Purpose of the Word “Whole” in Canon IV.9

If the word “whole” in Section 2 of Canon IV.9 is not intended to refer to the total number of Bishops entitled to vote whether or not present, what is its purpose?

As we have just seen, that is just what the word “whole” was intended to refer to. By setting up the argument to come to your preordained conclusion, you now have to ask a false question. And if the premise in the question is false, then any answer to the question will be equally false.

It would be improper to interpret the Canon in a way that rendered the language chosen by the 1904 General Convention, in whole or in part, meaningless if doing so would be unnecessary. It cannot be ignored that the General Convention, while making significant changes in the definition of the consent requirement for deposition, chose to retain the word “whole”. Again, however, the meaning of that word is completely consistent with the interpretation of this memorandum. Indeed, the word “whole” has important application in the Canon thus understood in that it requires counting abstaining Members present at the meeting, for the purpose of determining what constitutes a majority at a meeting, thus making failures to vote, or abstentions, have the same net effect as a negative vote, which has the effect of making a majority more difficult to obtain than would otherwise be the case. It is not difficult to posit a situation in which Members might express their displeasure at a given Bishop’s conduct and at the same time refuse to consent to the sanction of deposition by registering an abstention. Indeed, the 2008 votes included several abstentions.

I agree that you have found a meaning for the word “whole”, but it is in the false context you have created as shown earlier. The proof of the falsity of your conclusion as to its meaning may be seen by consulting the use of the same language in Articles X and XII of the Constitution, where the number of “retired Bishops not present” is excluded in computing the required majority for an amendment to pass. The language there clearly requires the number of active Bishops who are not present to be counted in determining whether a majority approved the amendment, and by the same token, it would require including the number of Bishops present, active or retired, but who abstain from the vote. So the reason that “whole” may be read in the manner you suggest is not because it refers directly (and only) to abstentions as such, but because it refers to the “whole number of Bishops entitled to vote,” counting those who abstain as well as those who vote, and counting those Bishops who are not present as well as those who are. Thus by concluding that the language requires abstentions to be counted, you are speaking only a half-truth, and refusing to acknowledge the rest of the truth of what the language requires. It’s a little like one of the blind men who describes only the part of the elephant that he can feel himself---and then concludes that he has described the animal fully.

B. Precedent establishes that the House of Bishops acted appropriately in considering and acting upon the Presiding Bishop’s referral to it of the abandonment of communion certified to her by the Review Committee.

In recent history, the House of Bishops has taken similar action regarding two
Bishops, Donald Davies of Ft. Worth (1993) and Neptali Larrea of Ecuador Central (2004). In both cases, the exact procedure followed with respect to John-David Schofield and William Cox was used. Decisions were taken based on a majority vote of those present at a meeting of the House of Bishops. Although the minutes of both meetings leave much to be desired, it appears that 131 Bishops of the 276 total eligible to vote attended the 1993 meeting and of that 143 Bishops of the over 300 total*22 eligible to vote attended the 2004 meeting. In neither case did a majority of those eligible to vote attend.

All this establishes is that those votes were invalid under the Canon as well. (Not that it matters now, except as is necessary to point out that those votes cannot serve as valid precedents.) Doing something wrong can never be a precedent for how to do it---otherwise, nothing would ever be done right.


Very tellingly, no objection was made at all. Even more tellingly, no objection was made at the time by either Schofield or Cox, or by any Bishop present at the time, which included, in the case of Bishop Larrea, many current Members of the House. There is no legitimate distinction to be made between the former cases and the present ones.

That is precisely the problem with the present cases.

Indeed, a fundamental unfairness would arise were Bishops similarly situated as to the Review Committee’s findings and certification treated differently. Impartial administration of the Canons of The Episcopal Church requires recognizing the legitimacy of the present depositions and not the contrary as some have argued.*23

If you want a valid precedent, go to the case of Bishop McCoskry. To depose him in 1878, the Bishops had to wait a number of days before voting so that additional members could be rounded up from their vacations to make a valid majority for deposition. I discuss the details of that precedent in this post.

C. Procedural safeguards assure fairness and justice in the case of Bishops accused of having abandoned the Communion of this Church.



Canon IV.9 provides several important safeguards to assure a fair and just
consideration of the cases bishops accused of abandoning the communion of this Church. Those assurances of due process begin before deposition is even a remote possibility.

First, abandonment is carefully defined by Section 1 of the Canon. A Bishop may
abandon the communion in one of three ways: (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.



Ah, yes---abandonment is “carefully defined.” So carefully, in fact, that it should not be possible to use this Canon to charge someone who has joined another church in the Anglican Communion with “abandonment”---because under clause (ii) of the definition, it is only “abandonment” when you join a religious body that is “not in communion with the [Episcopal Church].” (Emphasis added.) But Bishops like Cox and Schofield, who have transferred to other churches in the Anglican Communion, are nonetheless charged with “abandonment”---of the “Doctrine, Discipline, or Worship of this Church” under the first clause. So either the Canon’s definition contradicts itself, or the “Doctrine, Discipline and Worship” of the Episcopal Church is not the same as the Doctrine, Discipline and Worship of the rest of the Anglican Communion, and the Episcopal Church has no business calling itself a “constituent member” of that Communion. Take your pick.

The Review Committee, composed of five Bishop peers of the accused (a majority of the Committee) along with two Priests and two confirmed adult lay communicants,*24 must first find by a majority vote of all its Members that at least one of the three circumstances constituting abandonment is present and certify that fact to the Presiding Bishop. Inhibition of a Bishop so certified is possible only with the consent of the “three senior Bishops having jurisdiction in this Church.”

Even after the certification and, in some cases, inhibition, the certified Bishop has two months to make a Verified written statement to the Presiding Bishop that the facts alleged in the certification are false.

Not so fast again, Bishop Sauls---the language of the Canon makes clear that the only person who is given sixty days to respond is a Bishop who has been inhibited: “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 . . .” (emphasis added). It is ludicrous to speak of “safeguards” when the plain language of the Canon was not followed in the case of Bishop Cox, nor is it currently being followed in the case of Bishop Duncan.

If the Presiding Bishop finds that the statement is a good faith retraction or denial, she or he may, with the consent of a majority of the three senior Bishops, dissolve the inhibition and drop the matter. The Presiding Bishop’s discretion is limited (in favor of the accused) by a standard of good faith, to which she or he is canonically accountable. The accused is protected by the necessity of majority consent in the House of Bishops, composed entirely of his or her peers to whom the accused is presumably well known. The House has the right to initiate further investigation, which indeed the accused might request. It should also be noted that a Bishop accused of abandoning the communion of this Church can also avoid further proceedings by renunciation pursuant either to Canon III.7.12 or Canon IV.8.

In the present cases all the procedural safeguards were followed. 



They most certainly were not (see also the comments of Chancellor Stephens on this point). Bishop Cox was deposed without ever having been inhibited, and Bishop Schofield’s joining the Southern Cone was deemed an “abandonment” despite the definition in clause (ii). And now you are construing the Canon to reduce by more than half the number of Bishops required to approve a deposition. These are what you call "safeguards"???

It is particularly noteworthy that neither Bishop certified as having abandoned the communion at any point whatsoever disputed the allegation of the abandonment as certified by the Review Committee, renounced the actions, denied the actions in any way, requested a further hearing, made any rebuttal, issued any defense, or contested the allegation whatsoever.


Have you considered the possibility that the Bishops in question saw clearly, from the arbitrariness behind the application of the Canons, that it would have been utterly futile to do so? Nevertheless, it is my understanding that Bishop Cox has demanded that the Presiding Bishop retract her declaration of deposition, on the ground that the deposition was illegal, and that to refer to him as “deposed” is an act of defamation.
Bishop Duncan, as well as the Standing Committee of his Diocese of Pittsburgh, have not let his pending "deposition" go without protest, either.

Nor did either do so despite having an affirmative canonical duty to do so to avoid deposition.*25 The fair opportunity to do so having been provided, but ignored, the right must at this point be considered waived.



As a person trained in the law, you know well that an illegal act does not become lawful just because no one objects. Illegality, indeed, cannot be waived, because no one can lawfully consent to an illegal act. (See also David Trimble's comments on this point.)

Finally, it must be noted that no Member of the House of Bishops, present or not present, requested further action, investigation, or hearing as permitted under House rules. No challenge was made to the Parliamentarian’s ruling on the meaning of Canon IV.9. Similarly, no Member of the House of Bishops, as permitted by Rule XVII, requested reconsideration of the House’s action. Again, no request having been made at the time, the right to do so must now be considered waived.



“Considered waived”---that is sheer legal obfuscation. (See the detailed refutation of your logic on this point by Mark McCall.) Waiver requires an informed consent. If no one at the meeting was aware that the Canon was not being followed, then there could not have been a waiver. And if you are saying that everyone at the meeting knew that the Canon was not being followed, then you are back to the impossibility of waiving an illegality.

Under the circumstances, then, the House can only conclude that a fair and lawful procedure was followed, as provided by the Canon, and that the decision canonically made stands as the legitimate judgment of the House.



I submit instead that the House should treat the depositions for the nullity that they are, leave the Bishops alone, and negotiate a resignation with Bishop Schofield that would allow the Church to go forward with a lawful replacement in San Joaquin. (See the details of my recommendations here.)

Endnotes

*16 The title “suffragan” had been previously but rarely used in TEC, but the so-called suffragan bishops functioned as canonical “assistant” bishops.


*17 White and Dykman (n 5) 62.


*18 Although the office of Suffragan Bishop was not created constitutionally until after the 1904 amendment to the abandonment canon (the creation of the office of suffragan having been passed on first reading in 1907, the next General Convention, and on second reading in 1910), the creation of the office had long been contemplated. It had been proposed as early as 1847, and gained serious interest for missionary reasons at the General Convention of 1871 (the year after the Church of England began again appointing Suffragan
Bishops) and thereafter [White and Dykman (n 5) 60-62].
*19 White and Dykman (n 5) 21.


*20 The Episcopal Church Annual: 2008 (Harrisburg: Morehouse Publishing, 2006).
*21 Constitution of The Episcopal Church, Art. I, Sec. 2 (2006).
*22 The Episcopal Church Annual 2004 (Harrisburg, Pa.: Morehouse Publishing, 2004) 429-436.


*23 “Western Louisiana Bishop: ‘Two Sets of Rules for One Church,’” The Living Church (17 April 2008)

http://www.livingchurch.org/news/newsupdates/2008/4/17/western_louisiana_bishop_two_sets_of_rules_for_one_church.
*24 Canon IV. 3.26.
*25 White and Dykman (n 5) 1082.