As originally announced by Popes Nicholas V, Martin V, Alexander VI and Leo X, and then applied under Spanish and British monarchs ranging from Henry VII to George III, the Doctrine of Discovery claimed for the Crown any land in the New World on which the (Spanish or) British flag was planted. English explorers such as John and Sebastian Cabot, Sir Walter Raleigh, Sir Francis Drake and George Vancouver used the Doctrine as a means of extending British rule to North America on both the Atlantic and Pacific Coasts. Colonies of English settlers did the rest, so that by 1780, Britain claimed the whole of the Atlantic seaboard for its own (although it was by then in a war with its Colonies), plus portions of the Pacific Coast from Vancouver Island on south, and the Sandwich Islands to boot.
The effect of the Doctrine of Discovery was to preclude any colonization by competing countries within the British territories. France, for example, was compelled to establish its territories by sailing up the St. Lawrence Seaway to found Quebec, and by sailing up the Mississippi to claim the Louisiana Territory.
General Convention 2009, in adopting Resolution D035, proclaimed the doctrine outmoded in this day and age, even though there has been no example of its application in recent times. The Resolution calls for the governing bodies of ECUSA to write a letter to the Queen of England, Elizabeth II:
Resolved, that The Episcopal Church . . . directs the appropriate representatives of the House of Bishops and House of Deputies . . . to write to Queen Elizabeth II, the Supreme Governor of the Church of England, requesting that her Majesty disavow, and repudiate publicly, the claimed validity of the Christian Doctrine of Discovery . . .
It is, as already noted, unclear how or why the Queen should repudiate a doctrine which she herself has not personally espoused. Moreover, the Presiding Bishop has recently declared a new Episcopalian form of the Doctrine in a letter to the House of Bishops not yet published on the official ENS site, but released elsewhere. In her letter, she declares it her policy not to allow any Episcopalian Diocese or bishop to sell any of their parish property without a clause that would exclude the setting foot on it by any bishop or other clergy of another church in competition with ECUSA for a period of at least five years from the date of sale:
I will continue to uphold two basic principles in the work some of us face in dealing with former Episcopalians who claim rights to church property or assets. Our participation in God’s mission as leaders and stewards of The Episcopal Church means that we expect a reasonable and fair financial arrangement in any property settlement, and that we do not make settlements that encourage religious bodies who seek to replace The Episcopal Church.
It is worthy to note how the Presiding Bishop simply assumes, without any discussion, that she has the authority to impose these requirements on the bishops responsible for the lawsuits brought by the various pseudo-dioceses (emphasis added):
Pragmatically, the latter means property settlements need to include a clause that forbids, for a period of at least five years, the presence of bishops on the property who are not members of this House, unless they are invited by the diocesan bishop for purposes which do not subvert mission and ministry in the name of this Church.
I understand that other bishops, such as Anglican bishops in good standing (but not any who is involved in provincial border crossing) might be welcomed to preach, preside, confirm, or even ordain, but that diocesan permission cannot encourage anything that purports to set up or participate in another jurisdiction.
The lesson here is clear: if a group is one of the remnants left behind when its diocese voted to withdraw from the voluntary association which is the Episcopal Church (USA), that group, and the bishop it purported to elect, have no true authority over anything they might want to do, such as settle litigation with their opponents along Christian lines. Because the Presiding Bishop is causing the national church to pay their bills, whether directly or indirectly, it appears that (in her view) they have ceded all authority to her, and cannot do anything she does not want them to do. Without formally admitting them as full-fledged Dioceses, General Convention welcomed these new entities to their life in the new ECUSA, a life in which they of necessity allow the Presiding Bishop to use them as she deems will best support her claims of metropolitan authority over the entire Church.
The letter which Presiding Bishop Jefferts Schori wrote to the House of Bishops has created considerable confusion among Church and colonial historians, to say nothing of canon law experts. To some, for example, it is unclear whether the Presiding Bishop is claiming to act as Supreme Governor of ECUSA, in the way that Queen Elizabeth II, whom she will ask to renounce the corresponding doctrine in Britain, is the Supreme Governor of the Church of England. Some point out that ECUSA has no metropolitan, or Supreme Governor --- at least, in its Constitution as written. "But in recent years, and especially under Presiding Bishop Jefferts Schori, we are seeing promulgation of a second, unwritten Constitution," said Professor Oliver Cromwell of the Episcopal Divinity School in Cambridge, Massachusetts. "Under that Constitution, the Presiding Bishop can be whoever she says she is. And for her request to the Queen to have equal dignity, thus making it worthy of the Queen's consideration, she would have to be a Supreme Governor of a Church in her own right."
Professor Cromwell spoke at a press conference called by the Office of the Presiding Bishop to address a number of inquiries it said had been received about the Presiding Bishop's recent letter to the House of Bishops. He assured reporters that the appropriate title which the Presiding Bishop would choose to use in addressing the Queen was still under careful consideration by the Presiding Bishop's Council of Advice, which thus far has backed her every move to assume more power in the Church.
A reporter then asked Professor Cromwell: "But doesn't the new Episcopal Doctrine of Discovery, by which an Episcopal Church, once founded, is claimed for ECUSA for all time, undercut the Presiding Bishop's demand that the Queen renounce England's counterpart doctrine?" "Not in the least," Cromwell responded. "As the Presiding Bishop has stated it, the Episcopal Doctrine of Discovery applies only on soil that has been hallowed to the Episcopal Church. The British Doctrine, on the other hand, applied to any soil where any British citizen happened to plant the flag. In other words, we went through appropriate ceremonies, and called on God's blessing on this particular property for its intended use by ECUSA. All the British explorers did was stick a flag in the ground. And besides, the Episcopal Doctrine does not, as you stated, apply 'for all time.' God does not determine what the Episcopal Church (USA) shall do from time to time; only the Presiding Bishop does. The Doctrine, as she stated it, clearly applies only until ECUSA, or I mean, until the Presiding Bishop, decides a Diocese may sell it --- plus five years beyond that."
Professor Cromwell deferred to the Presiding Bishop's Special Legal Assistant for Real Property Matters, Mr. Henny Crumbsworth Phitingfor, Esq., to answer the question of whether the Presiding Bishop's Doctrine of Discovery violated laws prohibiting restraints on alienation. "As traditionally understood, no, we do not believe it does," he explained. "The usual form of unconstitutional restrictive covenant tried to prohibit whites, for example, from selling their property to African-Americans, or to Asians. Here we place no restriction whatsoever on who may buy the property. It's only on whom they allow to come onto the property."
"Does that mean that a Diocese could not sell its property to the Roman Catholic Church?" a reporter asked. "We do not see the Roman Catholic Church as competing in any way with us," Mr. Phitingfor answered. "They are on a different track, and do not attract the same kind of worshippers as we do."
Professor Cromwell spoke at a press conference called by the Office of the Presiding Bishop to address a number of inquiries it said had been received about the Presiding Bishop's recent letter to the House of Bishops. He assured reporters that the appropriate title which the Presiding Bishop would choose to use in addressing the Queen was still under careful consideration by the Presiding Bishop's Council of Advice, which thus far has backed her every move to assume more power in the Church.
A reporter then asked Professor Cromwell: "But doesn't the new Episcopal Doctrine of Discovery, by which an Episcopal Church, once founded, is claimed for ECUSA for all time, undercut the Presiding Bishop's demand that the Queen renounce England's counterpart doctrine?" "Not in the least," Cromwell responded. "As the Presiding Bishop has stated it, the Episcopal Doctrine of Discovery applies only on soil that has been hallowed to the Episcopal Church. The British Doctrine, on the other hand, applied to any soil where any British citizen happened to plant the flag. In other words, we went through appropriate ceremonies, and called on God's blessing on this particular property for its intended use by ECUSA. All the British explorers did was stick a flag in the ground. And besides, the Episcopal Doctrine does not, as you stated, apply 'for all time.' God does not determine what the Episcopal Church (USA) shall do from time to time; only the Presiding Bishop does. The Doctrine, as she stated it, clearly applies only until ECUSA, or I mean, until the Presiding Bishop, decides a Diocese may sell it --- plus five years beyond that."
Professor Cromwell deferred to the Presiding Bishop's Special Legal Assistant for Real Property Matters, Mr. Henny Crumbsworth Phitingfor, Esq., to answer the question of whether the Presiding Bishop's Doctrine of Discovery violated laws prohibiting restraints on alienation. "As traditionally understood, no, we do not believe it does," he explained. "The usual form of unconstitutional restrictive covenant tried to prohibit whites, for example, from selling their property to African-Americans, or to Asians. Here we place no restriction whatsoever on who may buy the property. It's only on whom they allow to come onto the property."
"Does that mean that a Diocese could not sell its property to the Roman Catholic Church?" a reporter asked. "We do not see the Roman Catholic Church as competing in any way with us," Mr. Phitingfor answered. "They are on a different track, and do not attract the same kind of worshippers as we do."
"But isn't that still a violation of the Church's canons, especially when the clergy or bishop in question is from a province with whom ECUSA is in communion?" he was next asked. "Why, to what Canon are you referring?" he responded. The reporter (who is also an Episcopal priest) quoted Canon III.9.6, and read:
"No Priest shall preach, minister the Sacraments, or hold any public service, within the limits of any Diocese . . . without a license from the Ecclesiastical Authority of the Diocese in which the Priest desires so to officiate. No Priest shall be denied such license on account of the Priest's race, color, ethnic origin, national origin, marital status, sex, sexual orientation, disabilities or age . . ."
"Ah, well, there you have it," replied Mr. Phitingfor. "You have answered your own question. You see, when we insist that no member of a competing Church, even one with which we are in communion, may set foot on one of our properties for at least five years after we sell it, we are not discriminating against that person on any of the bases listed in that Canon. We are discriminating against him on account of his religion, don't you see, because we see his religion as in competition with our religion. And there's nothing wrong with a Church discriminating on the basis of religion --- churches do that all the time."
"But not after you have sold the property," the reporter persisted. "If you have sold the property and still try to restrict the kind of people who may use it, aren't you engaging in discrimination that is forbidden by the Civil Rights Act and the Fourteenth Amendment -- which prohibit discriminating against anyone on the basis of their religion?"
"To be honest, we hadn't thought about that," Phitingfor replied. "We'll look into it, and if we find there's anything to it --- though frankly I don't see right now how that could be the case --- we'll put out a statement. But don't call us; we'll call you."
And with that exchange, the press conference was declared at an end.
"No Priest shall preach, minister the Sacraments, or hold any public service, within the limits of any Diocese . . . without a license from the Ecclesiastical Authority of the Diocese in which the Priest desires so to officiate. No Priest shall be denied such license on account of the Priest's race, color, ethnic origin, national origin, marital status, sex, sexual orientation, disabilities or age . . ."
"Ah, well, there you have it," replied Mr. Phitingfor. "You have answered your own question. You see, when we insist that no member of a competing Church, even one with which we are in communion, may set foot on one of our properties for at least five years after we sell it, we are not discriminating against that person on any of the bases listed in that Canon. We are discriminating against him on account of his religion, don't you see, because we see his religion as in competition with our religion. And there's nothing wrong with a Church discriminating on the basis of religion --- churches do that all the time."
"But not after you have sold the property," the reporter persisted. "If you have sold the property and still try to restrict the kind of people who may use it, aren't you engaging in discrimination that is forbidden by the Civil Rights Act and the Fourteenth Amendment -- which prohibit discriminating against anyone on the basis of their religion?"
"To be honest, we hadn't thought about that," Phitingfor replied. "We'll look into it, and if we find there's anything to it --- though frankly I don't see right now how that could be the case --- we'll put out a statement. But don't call us; we'll call you."
And with that exchange, the press conference was declared at an end.
I'm glad you hit the restrictive covenant angle.
ReplyDeleteSchori sincerely expects the court to enforce a bar on a sale or use because of religion? The way it's written now sounds innocuous because - hey, who really cares about a presumably white guy in a funny hat.
But could you imagine if that principle were actually in place and this time it was a covenant that precluded a church from selling property to, or allowing the use of the property, a Jewish congregation? I imagine that Schori would hyperventilate herself into a complete meltdown over that kind of injustice.
As a Catholic, one of the many things about Schori that I find disturbing is her constant appeals - possibly unintentional - to anti-catholic tropes. For example, she mentions the Popes she deems responsible for the heinous principle of discovery, but, naturally, she omits Pope Eugene IV, author of Sicut Dudem, which in 1435 decried the enslavement of natives of the Canary Islands, and Pope Paul III, author of Sublimis Die, which contains this language: "the said Indians and all other people who may later be discovered by Christians, are by no means to be deprived of their liberty or the possession of their property, even though they be outside the faith of Jesus Christ; and that they may and should, freely and legitimately, enjoy their liberty and the possession of their property; nor should they be in any way enslaved; should the contrary happen, it shall be null and have no effect."
Of course, being balanced in her presentation of papal precedent - and acknowledging that the doctrine of discovery was not essentially tied to enslavement of the native population - wouldn't allow her to present her anti-western narrative.
Peter, thank you very much for those comments, especially the corrections of ECUSA's version of papal history. I would guess that the Presiding Bishop is not the least bit interested in the details, however --- and I note that GC 2009 stopped short of calling upon Benedict XVI to apologize. What I find worthy of note is that the contradiction between Resolution D 035 and the PB's stance on parish property bothers the Episcoleft not one whit. "Consistency," they say, is the hobgoblin of small conservative minds."
ReplyDeleteIn the various commentary I've seen on this, one thing that goes unmentioned is that the PB / Executive Council wields a practical veto over settlement even if they have no real power to do so. Any settlement would be based in large part on a desire to avoid litigation. TEC's determination to litigate on its own kills that goal and thus the possibility of settlement.
ReplyDeleteIf a departing congregation reached agreed terms with their diocese, for example, but knew that TEC was opposed, the settlement would die because the congregation would be silly to settle with the diocese when they knew there was a likelihood that they'd wind up in litigation with TEC anyway.
You were right to hit on that inconsistency.
ReplyDeleteBut this area is laden with such inconsistencies.
When we first started working on the St. Luke's case, it seemed to me that there must be some significance in the fact that mainstream Protestant denominations are organized as local private corporations. As a Catholic, the fact of separate local corporations stood out in bas relief compared to what I was used to.
It seems to me that the "high-church" Protestant denominations are attempting to have their cake and eat it too. On the one hand, they like the idea of local corporations which communicates to the local congregation that they somehow have an ownership stake in the church. This ownership interest - as with all ownership interests - motivates local church members to invest in their local churches because their investment remains theirs. And this explains why Protestant congregations have a tithing rate that shames Catholic congregations.
On the other hand, when it comes down to brass tacks, they want to declare that local ownership to be a mere fiction.
Likewise, by adopting a quasi-congregational approach, they attempt to shield the assets of other churches and the denomination from liability for the torts and contracts of member churches. On the other hand, by arguing that local churches are the legal equivalent of "sock puppets", they giving the plaintiff bar some really great off the shelf arguments for "alter ego" and enterprise liability.
I wonder what happens when the crows come to roost on alter ego and reduced giving to local churches, all of which necessarily follows from the mainstream denominations adopting the position that local churches are a convenient fiction.
I trust no one whoe last name is Cromwell.
ReplyDeleteLet me try this again. My experience with restrictive covenants is based on the type of covenant a professional group makes with a new partner or employee that the new guy agrees to not go into competition across the street if the partnership or employment arrangement fails. I have been told that these covenants can be challenged, but most professionals would rather not deal with the legal fees and either ignore the covenant or obey the covenant depending on the prevailing mood of the parties.
ReplyDeleteThis is more of a unilateral edict than a restrictive covenant. This sounds like a familiar tactic by 815. It appears to me to be intended to frighten any weak spined members of the HoB who might be looking to make a deal in these cash strapped times on what would otherwise be a cash draining empty parish property.
Admit it, you or some other master of satire wrote those "quotes" from the press conference. Right?
ReplyDeleteI came here originally to read your posts on Frank Tipler, but stayed on longer for the sheer entertainment value. Well done, Sir!
Wahrheit, you have lived up to your name. The words quoted from the press conference may be my own, but that they reflect the substance of the current leadership's stance is beyond question. If they strike you as worthy of amusement, well, that is because the views they reflect are indeed rather bemusing, to say the least.
ReplyDeleteI'm glad you found the entertainment value in this site --- it is a constant goal, and the object of a lot of research time, but without feedback such as yours, it is not possible to say whether or not it succeeded.
Thank you for coming to visit, and for your views on Frank Tipler. When the current brouhaha over GC 2009 dies down, I hope to get back to putting up more about his extraordinary theories.
In the early 90s, I was listening to Tipler's "The Physics of Immortality" as a book on tape while driving to Kingsburg. I was so engrossed in the mind-blowing, gosh-wow interface of multiple worlds, the psi function and Trinitarianism - God's personhood can be explained by the Turing Test - that I was not paying much attention to driving until I was pulled over for speeding - one of 3 such Tickets in 30+ years of driving.
ReplyDeleteI did not even try to explain to the cop why I was speeding.
I've got the "Physics of Christianity" on my Kindle.