SECOND AFFIDAVIT OF CHARLES A. HOUGH, III NO. 141-237105-09
THE EPISCOPAL CHURCH, ct al. § IN THE DISTRICT COURT § v. § TARRANT COUNTY, TEXAS § FRANKLIN SALAZAR, ct al. § 141 ST .TUDICIAL DISTRICT
SECOND AFFIDAVIT OF CHARLES A. HOUGH, III
STATE OF TEXAS § § COUNTYOFTARRANT §
On this day personally appeared before me Charles A. Hough, III, who, after being
placed under oath, stated the following:
(1) My nalne is Charles A. Hough, III. My business address is 2900 Alemeda Street, Fort
W0l1h, Texas 76108.
(2) I am Canon of The Episcopal Diocese of Fort W0l1h, a Texas unincorporated nonprofit
association, hereafter "the Diocese," and have served in this capacity since January 1,
1994.
(3) As Canon of the Diocese, I am a custodian of its records, as well as those of The
Corporation of The Episcopal Diocese of F0l1 Worth, including records in Cause No.
153-144833-92, styled Corporation of The Episcopal Diocese of Fort Worth, Church of
the Holy Apostles v. McCauley et ai," hereafter referred to as "Holy Apostles litigation."
(4) Jonathan D. F. Nelson, also known as Jon Nelson, was hired and paid by the Diocese to
represent plaintiffs in the Holy Apostles litigation, according to the records of the
Diocese. (5) Attached is a true and correct copy of a petition he filed in the Holy Apostles litigation
(Exhibit 1).
(6) Attached as Exhibit 2 is a true and correct copy of a memorandum from Nelson dated
August 9, 1993, received by Bishop Jack L. Iker to assist him and others in preparing
affidavits that accompany a motion for summary judgment with their affidavits, a true
and correct copy of which is attached as Exhibit 3.
(7) Attached as Exhibit 4 is a true and correct copy of Nelson's letter dated July 24, 1995, to
Bishop Iker concerning his representation in the Holy Apostles litigation and attached as
Exhibit 5 are true and correct copies of some of the invoices the Diocese received to pay
for Nelson's services in the Holy Apostles litigation.
I swear under penalty of perjury that all of the foregoing statements are based upon my own personal knowledge and are true and correct.
CHARLE A. GH, III, Canon The Episcopal Diocese of Fort Worth
SUBSClUBED AND SWORN TO BEFORE ME by the said Charles A. Hough, III on this 6..J.k, day of January, 2011.
\\\1111', ~,~\.~.Y~r:~'~ KARRIE GENTRY If--:'~ti Notary Public, State of Texas ; ;.!;;I~t~i My Commission Expires i ~":~f.Mj$~' October 23,2012 EXHIBIT 1 ,~
···r f
CAUSE NO. 153-144833-92
CORPORATION OF THE EPISCOPAL § IN THE DISTRIGT COURT DIOCESE OF FOR~ WORTH, § CHURCH OF THE HOLY APOSTLES ,§ §. vs. § TARRANT COUNTY I ~EXAS § THE REVEREND M.L. MCCAULEY, § SOMETIME RECTOR AND CHAIRMAN § OF THE VESTRY O~ CHURCH OF § THE ROLY APOSTLES l' ALBeN § HEAD, SOMETIME SENIOR WARDEN § . AND STE~ ,~LACKMAN,I SOMETIME § ,JUNIOR WARDEN OF CHURCH OF § THE HOLY APOSTLES; :HO~CE § BOOTH, HOMER COX, ~ECKY :§ HEAD, ROBERT MILLER, ROBERT § PALMERI JEAN RICHARDSON, § DON8HIPE, PAUL SNELL, § AND JAMES CHARBONNET, SOMETIME § MEMBER OF THE VES'l'RY OF CHURCH § 0F TI1E HOLY APOSTLES; ANO 'THE § SCHISMATIC AND 'PUR~ORTED,CHURCH § OF THE HOLY·APOSTLES § 153RD JUDICIAL DISTRICT
PLAINTI1'FS' SECOND AMENDEP ORIGINAL PETITION :'AND 1\P.PLICATION . FOR TEMPORARY INJUNCTION AND PEltMANENT':X'N.1UNCTION )' TO TIm HONORABLE JUDGE OF SAID COURT: NOW COMES the ,CORPORATION OF THE. EPISCOPAL DioCESE OF FORT
WORTH and CHURCH OF ':eHE HOLY APOSTLES, Plaint.iffS:, compl~ining of
The Reverend'M. L. McCauley, sometime Rectq~ and Chairman of the
vestry. of Church of the Holy Apostles; Alben Head l sometime senior Warden and steve Blackman, sometime Junior Warden of Church of the Holy Apostles; Horace Booth, Homer 'Becky Head Robert Miller, , Cox, l Robert Palmer, Jean Richa~dson, Don Shipe, Paul Snell, and Ja~es
c~arbonnet, Sometime'Members of the Vestry of church of the Holy I' . ,. Apostles i and the. Schismatic and Pl\a::Wi5tf.91 M2~}tfCh' of the Ho~y . . " H3C lIN, ·V S '11 WO'Hl Apostles I Defendants I and as grounds therjore. would' show the Court
PlAltlTlFl'S' FIRST AMENDED OIUGI!iI\L PEInlON ANO IIPPLICATIOIlVdot ~ t m:t S6. ' TEMPORI\RY IIlJU~cn9N AND PERMANENT INJUNCTION· pa!1e 1 of 16
HOLY/1~1A/PSl " ',AIW'. ,I,,! IN\ftl~\jl (r~ll.:1
A982 ", ( the following:
1. Plaintiff corporation of the Episoopa~ Diocese of Fort
Worth (lithe Diocesan Corporation") is a not-for-p;cofit corporation organized and doing business under ~he laws of t~e state of Texas with its pr~ncipal office and place of business ip Tarrant County,
, I Texas. !t holds legal title to properties us~d for religious purposes by parishes,missions and eccl~Siastica~ institutions of the Episcopal D;iocese of Fort WO,rth (nDioC!ese'~). 'In particula:r:,. it holds legal title to certain 'real property us~d 'for religious pu:r:poses 'and beneficia)ly owned by Church of .~he Holy Apostles lying and situated in Tarrant county, Texas, further desoribed on
EXhibit nAn attached hereto and hereby ir:tcorpo.rated by reference
for all purposes (lithe Real Property"). 2 • Plainti.ff Church of :the Holy Apostles ("Holy Apostles")
is an unincorporated association organized for r~ligious purposes
as a parish of the Episcopal Diocese of Fort Worth! ("the Diocese") , with its principal office and place of busiriess 'i~ Tarrant County,
Texas. Holy Apostles acts through its Rector I Wairdens and vestry.
3. Defendant The Raverend. ·M. L.· McCauley, a resident of Tarrant CountYt Texas, was Rector and chairman .of the vestry of Holy Apostles at all times relevant hereto'until his inhibition on'
October 5, 1992 1 as desc:tibed hereinbelow. He may be served at Holy Apostles, 3900 Longvue Avenue, Fort Worth, Tarrant county,
Texas. The vestry of' Holy Apostles have the authori:ty and
responsibility for certain day-to-day conduct of the parish I s
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" \ business which are granted 'to them by canon law.
4. Defendant Albon Head, a resident of Tarrant co~ntYi
Texas I was senior Warden and a melnber' of the vestry of' Holy
Apostles at all time~ relevant hereto until on or about October 4,
1992, as described hereinbelo't-T. He may be, served at' 13,751 Old
Weatherford Road, 'Aledo, Parker county, Texas~ 5. Defendant steve Blackman, a resident of Tarrant County, 'Texas, ,was Junior Warden and a member of the vestry of Holy Apostles at all times relevant hereto until on or about october 4,
1992, as descr~ed hereinbelow. He may be served at 2012 Adams Lane South, Azle, Tarrant county, Texas. 6. The Vestry of Holy Apostles. consisted! of those named above and an additional ten members at all times relevant here~o,
until on or about October 4, 1992, as ~escribed hereinbelow. Nine
of said Vestry members r Defendants herein, are those now listed, . , who reside and .may be served at the address in Tarrant county (unless otherwise stated) shown opposite each name: '
~. Horace B.ooth, 106 Circle Dr. I Weatherfor¢l" Parker County I
TX 76087
2. Homer Cox, 464 Meadowhill Dr., .Benbrook, TX 76126
3. "Becky Head, 12 BGunty Rd. W. 1 Fort Wo~th, TX 76132
,L 4. Robert Miller, 2313 Harvest Glen ct. I Ft. Wort.h, TX 76108 5. Robert Palmer, 7 Frank Lane, Granbury, Hood County, TX
76049
6. Jean Riyhardson l 728 Winters, Fort ~pr~h, TX 76114
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A984 7. Don Shipe, 3 Lombardy Terrace, Fort worth, TX 76~32 8. P~ul snell, 2229 Huntington, Fort Wortn, TX 7Gl10
,9. James Cha~bonnet, 8034 Meadowbrook Dr., Fort Worth, TX 76120 7. The Schismatic and Purported Church of the Holy Apostles is an unincorporated association or, not-f~r-prpfit corpQration organized for religious purposes as a member at the' Antiochean Orthodox C:hu:r;ch. It is composed in part of some Ipersons who have heretofore bean parishioners of Episco_pal Chwtch of the Holy
Apostles but have become members in the Antioohearlt orthodox Churoh in accordance with action of the sometime vestry on or about
October 4 r 1992, as described hereinbelow I and subsequent acts described h~reinbelow.
8. The Episoopal Diocese of Fort Worth is situated in all or parts or twenty-four counties in North Central Texas, includfng all of Tarrant County r Texas • It is a dioc~se· of The Protestant
.Episcopal Church in the united states of America, ("The Episoopal
ChurchU ), which is a confederation of dioceses s1.tuated primarily 'in the united states, but also in Latin America and'Europe. The
Bishops .of The Episcopal Church ar~ members of the Anglican communion, which is composed of Bishops of the Church of England and numerous other Anglican churches world":wida. The Anglican
Communion is itself ·in oommunion, reciprocal~y acknowledging validity of ~ach others Orders and Sacraments, with certain other Anglioan churohes around the world. The Anglican communion, the
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, Episcopal Church and the Episcopal: niocese of Fort worth are not in
communidn wi th the 'various orthodox Churches I including the
"Antiochean Orthodox Church. Consequently, no ,member of' the Antiochean orthodox Church is in communion with the Episcopal Bishop'of Fort Worth. 9. The Episcopal Church, originating in the North,American
colonies as a part of the Church of England r is an historic Reformation church. It separated from the Roman catholio Church in the, sixteenth ce:t:ttury but prese:rved catholic faith and order, including the Apostolic succession of its Bishops ,and 'the three
folQ Orders of Bishops, Priests and Deacons. The Diocese i~ an
hierarchial church, meaning: ~) each parish consists of rnel'nPers of The Episcopal Church confirmed in or .transferred tqthat parish,
who are in communion with the' Bishop and the pari~h being ih union
with the diocesan convention~ 2) each parish exists by virtue of
, its cre'ation by the Bishop and the diocesan convention i 3) each parish is sUbje~t to the jurisd'iction of the Bishop and the constitution of the diocese; 4) the,government of the parish is ,subject to review and control of the Bishop and diocesan institutions in various important particulars., including the use of
real property used ~or religious purposes, including those pursuant
to Canon 30 i 5) legal t.itle to .such real p:ropert~ is reposed in the
Diocesan Corporation rather than in the parish; and 6) priests and
deacons's'erving in the parish either ar~ ordained pursuant to
approval of diocesan bodies and the Eishop 'or, having been ordained
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in another diocese of The Episcopal Church or ot?er church lIdth which-the Diocese is 'in oommunion, may become·canonically resident and serve in the Diocese as a priest or deacon only with the consent of the Bishop. Under the Constitution of the Diocese and
under Canon law I no person maybe. a memper -of ~. parish. ,.,ho is not a member of The Episcopal .Churoh, and no person may serve on the vestry of a parish who is not a member, canGnically resident, in that parish. Further; no parish which is affiliC;ltad with the. Antiochean Orthodox Church can be in.union with ,the convention of 'J the Diocese.
lO. Holy Apostles was initially organized as a non... self-
supporting mission of the Diocese on June J.2, 1964 D Both the Diocese and Al·l. Saints' Church, a parish of the Diocese for many years, gave '. Holy Apostles financial assistance both for its operating budget and for the acquisition of real properby on which
to build a church. Such real property was sold on March 15, ~986
and the sale proceeds were· used in acqui~ition o~ the Real Property
describ~d on Exhibit IIAn on which the parish's improvement are
presently located. The funds provided by the Diocese and_by All saints' church were gifts to Holy Apostles, rather than loans, and
were never repaid. Holy Apostles has also re~eived financial
assistance in the form of. a loan from the crump Fund for construction of improvements·on the Real Property, said loan being made at a below-market interest rate of 2% per annum. The crump
Fund by its trust indenture may lend only to Episcopal parishes·,
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A987 and such below-market loan conveyed a substantial benefit for which
Holy Apostles would not qual ify otherwise and used crump moneys lolhich would have otherwise been available to some other Episcopal parish. Holy Apostles was adlnitted to the diocesan convention as a parish on october 6, 1979. 11. Defendant McCauley shared with many other Episcopalians a deE}p dissatisfaction with the poltaies of" The Episcopal church but, unlike the leadership of the Diocese, he determined to leave The" Episcopal Church" rather than to work for its reform. He gradually ac~ired a vestry uncanoniaally and unlawfully elected by plurality rather than majority vote I which assisted h.is enterprise. In early 1992, Defendant McCauley began a pUblic campaign to lead parishioners of Holy Apostles into the Antiochean orthodox Church.
Efforts by the Bishop and by other members of the Diocese to dissuade Defendant McCauley and the unlawfully constituted vest~y, were unsucoessful. At the conclusion of two services on S~nday, October 4, .1992", the Senior Warden announced to the parishioners
that at 7 :"00 that morning I the Vestry had unanimously voted to leave The Episcopal Church and to petition to affiliate with the
~ntiochean Orthodox Church. At one service on Oct~ber 4, 1992, Defendant Mccauley made such announcement. De"fendants MCCauley and
eleven of the twelve me~bers of the vestry ~hereby abandoned the communion of The Episcopal Church and ceased to be qualified to serve as a priest or as a member of the Vestry under the
constitution and Canons of th~ Diocese and "of The Episbopa~ Church
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A98S ( and canon law. Defendant McCauley has subsequently, on November
29, 1992, b~en reordained as a deacon, a~d the eleven vestry members and the members of the parish were chrismated as melnbers of the Antiochean orthodox Chu~ch on December l3/- 1992.
12. On October 5, 1992, pursuant to canon law t _the Bishop reported these events to the Standing committee of the Diocese. The Standing committee, having ascertained and considered the facts, det~rmined by a vote of at least three-fourths of its members-that Deferldant McCauley had-abandoned the communion of The
Episcopal church and of this Diocese-. A copy of- such ~etermination by the Standing committee is attached hereto-as Exhibit liB" and is
~ereby incorporated by reference. The Bi$hop thereupon affirmed such- determination by the standing committee and -inhibited
Defendant Mccaulex from officiating in the Diocese. A copy of such
-inhibition' is attach~d hereto as Exhibit "e" and is hereby in~prpo~ated by reference.- Upon suoh irulibition the office of the Rector of Holy Apostles became vacant, and the Bishop became Rector ex officio.
~3. Having been informed that the unlawfully constituted Vestry of Holy Apostles had abandoned communion "l;17ith The Episcopal
church, on october 5, 1992, the Bishop sorr~wfully aocept¢d and aoquiesced in their abaI).donment of co:mmuniqn with him and thereupon_ pronounced each lay member of the Vestry excommunicate. The Bishop
thereupon further pronounced that all vestry. offices of Holy Apostles are vaoant, since all members of the Vestry had abandoned
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their qualification to hold such office under 'canon law.
Subsequently it wa's l~'arned that one ~~U1ber of the Vest:ry, Robert Rigdon had not participated in.such actions, and the pronounoement of ,excoltUt\unication was ineffective as to him. canonical procedure commenced to aocept Defendant McCauley's abandonment of communion
and to depose hini as'.:i·pfiest ~ Pending such proceeding, Defendant '.r. ~,,":.-;;'~.:, ' McCauley resi<:!n'ed" hI,s ,~,.~j.nistry as priest on November 26, 1992 1
which resignation' was "accepted on Decffiuber 7 I ~992. l4. On October 5, 1992, the Bishop oalled a special,meeting
of the parispioners of Holy Apost.les for su,nday I october 11, J.992, to '£1J.1 the vacancies on the Vestry and to call an interim Rector'. At such election, Rob'ert Rigdon, Ann Heinz, Helen Magnusson, Dave Huebner, Ivan Shadwick, and Charra Wright were elected to the vestry and continue to serve as such. The Senior Warden is Robert
Rigdon and, the Junior Warden is George KomecheJt. Subsequently, at
their yearly meeting on January 10, 1993 1 George Komechek, Ted'Roe 'j and Doris Boyd were also elected to the vestry. The Rev. Canon I ! James P. DeWolfe,. Jr. has accepteQ. a' call as Interim Rector. Unless the Court grants injunctive relief, it will be necessary for
~he parishione:rs of Holy Apostles to meet at another lo.cation,
which condition w~ll continue for so long as they are deprived of
the possession of the Real P~operty and the improvements,
furnisllings and f ixtures theret~. It is commonly and normally the case that, where a local church are uprooted from their accustomed
place of meeting, such disruption oau~es a loss 'of membership which
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may never be fully repaired. consequently, the denial to the loyal
parishioners of .Holy Apostles of the use of their real' and persc:mal p~opertYl will cause damages to Holy Apostles for which there is no
adequate remedy at law I so that a temporary injunction should issue
preventing interfere~ce by Defendant~ with the loyal parishioners'
possession of the Real and other Property.
15. On October 5, ~9'92, demand 1jTaS made on Def~ndants for uncontested posses$ion of the Real Property and improvements of Holy' Apostles. Such demand was refused. 16. Many of the loyal parishioners of Holy Apost:;tes have point.ed out' the-ir' ,financial contributions and in addition the
speoial, unique furnishi:ogs and fixtures givan by them as memorials to Holy Apostles and have noted that it was never their intent that such gifts and memorials be converted to the use of'the Antiochean orthodox Ghurch.
17. Those persons acting in concord with the Defendants have
constituted th~mselves as the Schismatic and purported Churoh of the Holy Apostles. Such persons are not members of the true Church
of the Holy Ap'ostles because they have joined the Antiochaan Orthodox Church and t?e.reby have abandoned commul!ion wi th The" Episcopal Church, and such Schismatic and Purported Holy Apostles
is not in uniqn with the Diocese, all as required by canon law. The Schismatic and Purported Church of the Holy Apostles is a new creation, having no relation to Holy Apostles and no right ta its property.
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.) l8. In ~ hierarchical churoh structure, such as the Diocese, the c·ivil oourts should defer to the aotions of the ecclesiastical authorities detennining.·the identity of the loyal group of members, officers and clergy. Where a division occurs in a parish
affiliated ·with the Diocese l and a dispute arises as to the
ownership or control of the parish I s property t the members entitled to ownership and control are those .parishioners adhering to and sanctioned by the Di.ocese.
~9. In addition to being the beneficial owner of the Real Property,' Holy Apostles also owns improvements located thereon, together with furnishings and fixtures thereon, and in addition bank accounts and other -funds, investments and assets, having a total value in excess of the minimum jurisdictional amount of this
Court. In view of the calculated way in which Defendants have proceeded, Plaintiffs have reason to believe and do believe that
Defendants may attempt to convey I assign ·or give title, possession or use of such real personal property and records to some person,
corporation or enti~y other than Church of the Holy Apostles. The
loyal and· true parishioners of Roly Apostles wi~l be deprived of their right to use and enj oy the Real Prope.rty, the unique
memorlals alid other property of Holy Apostles. If D~fendants do so
convey t assign,spend or 'give a~vay any or ~ll of Holy Apostles' . . Real Property, or other assets or records, Plaintiffs and the loyal members of Holy Apostles· have no adequate remedy at law.
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20. Plaintiff seek declar~tion, pursuant to Section 37.01, et
seq. I Tex. Civ., Prac. & Rem. Code, that they are entitled to ownership and pO$session of the real and personal 'property sought in this case and for ,reasonable attorney's fees pursuant to the statute for bringing this action. 21.' A temporary injunction should be issued, upon notice and
.hearing, tempQrarily e!,lj.oining the Defendants I th~ir offi~ers,
agents, ser:vants" en\ployees and attorneys a:nd those in active concert or participating 'with them from conveying, hypothecating, encumbering or otherwise ,clouding the title to the Real Property
and all impro~ements and fixtures thereto; from removing, selling,
assigning, damaging or in any way interfering with Plaintiffs l right to possession and use of the Real Property and the furn'ishings, fixtures and' :memorials pertaining to the', Real
Property; from withdrawing funds in all b~nk accounts, savings aocQunts, certificates of deposit, money market accounts and all other repositories for funds and from spending any funds already
converted into cash or cash e.quiva'l,ent which were contributed originally or which contain funds originally contributed to Church
of the Holy Apostles; -from removing I damaging r destroying or in a):lY
other way interfering with the books l records, file~ and documents
of all types belonging or in any way pertain~ng to Church of the Holy Apostles; and from purporting to exercise the authority and
re~ponsibility of' any office of Church of the Holy Apostl,es. Upon trial on the merits, a permanent injunction should issue to the
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same effect and, in addition, require Defendants 'to deliver to
Plaintiffs the remainder of the personal property, funds, boo]{s,
records and files and all other assets of Churc1.1 of the Holy
Apostles and to ~et~rn to it all and any properties, funds, books,
records, files and other asse.ts previously removed from it by them .. 22. As a result of the' ac·tions of the Defendants, Plaintiffs have incurred damages and should be entitled to recover from the Defendants damages in the form of reasonable rental recovery, the .loss of use of the funds which'were on hand when Plaintiffs were 'dispossessed of their property and other damages as may
demonstrated a~ the, time of trial" all of, which plaintif:fs seek
from Defendants in a sunt in excess of the jurisdictiona~ limits of the Court. 23. In the event of' a trial on the merits and Defendants'
remaining in possession,of the propert~ during the pendency of an appeal, Plaintiffs request that the court appoint an individual to periodically· inspect the real and personal property to insure that said property is properly maintained and protected. Should the Defendants fail to properly maintain and/or protect the property, Plaintiffs request that the couit retain the power and so brder that Defendants either be dispossessed of the property and Plaintiffs be given possession or, . in tbe alternative, that Defendants make the' necessary repairs or maintenance within a reasonable mnount of time; that the Court further retain the. power'
a·nd so order that should such repairs' ,or maintenance not be made
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A994 that Defendants shall be liable for all costs of the main~enance and/or repairs and that the~,be dispossessed and ,that Plaintiff's be given possession. WHEREFORE, PREMISES CONSIDERED, Plaintiffs pray that, upon notioe, the court hear this cause upon Plaintiffs" application for temporary injunction and that,. u,pon such hearing, the Court issue its temporary injunction enjoining Defendants, their officers, agents, servants, enlployees and, attorneys and thqs~ in' active concert or participating with'them from conveying, hypothecating, or 'otherwise clouding the title to the Real Property and -all imprGvements and fixtures thereto; from removing, sellinq,
a-ssignihg, damaging or in any ~'1ay interfering with Plaintiffs' right to P?ssession and use of the Real Property and the
furnishings I fixtures and m~morial pertaining to the Real Property;
from purporting to exercise th~ authority a.nd responsibility of any , , ofIige of Church of the Holy Apostles; to deliver to Plaintiff all funds in all bank aocounts; savings accounts, certificates of .. deposit, money market aocounts and all other repositories for funds and all funds already converted into cash or cash equivalent whioh . were contributed originally or which contain funds original'ly contributed to Churoh of the Holy'Apostles; to deliver all books, records, files and documents of all types belonging or in any way
pertaining ,to Church of th'e Holy Apostles; and to return to Plaintiffs all such properties, funds, books, records, files afid ather assets of Church of the Holy Apostles previously removed from
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A995 , , " , .', ( it by them; tba~ upon erial on the ~Q~its, a ~ermanant injunotion for issue to th~ sa~e etfeot and~ in addition, require OefQndan~ to deliver to Pla'intitf$ the t'emainde>: of the perIlQ.n",l p~Qperty, " funds, bo~k$~ ~eQords. and~~ile$ and all other assets ot Chu~oh of the' Holy' Apostle~ and. to r~turn to it all' and any" properties., funds I booKs', records,' til.es and' o~her 'assets previously re'tl1oved fl'o~ ~t by them, for a dealaration~ purs1.lant .tQ s~otion. 37.01, et seq., Tex. Giv. Prac., &.Re~. co~a ~hat Plaintiffs are' entitleato the ,proper:ty I both real and personal I and other assets,' for damages, r~a$onable att~rneY/a fee~1 prejud~ent ana post-judgment i~ter~$t as provid~d by law, tor CO$t$ of CQu~t$'and s~oh ~the~ j' ~eliet to whiah Pla1ntiffs mall; sh~w themselv~s justly entitled',
, RespeQtfully submitted,.....
rSRRARA & KENSEL' '2l7 OV~rton Park ~ank Bt.lildln9 4200 South Hulen st~eet Fort Worth, WX 75109 (817) 'lZS-7000 (817) 738 .... 33"4 (:f"AX)
A~ORNE¥ FOR PLAINTrff CORPORATION OF THE EPISCOPAL OIOCESE OP FO~~ WoaTR .
PL.wm~ft.r ~O~S1' .... KI!)lDEI) 08lGTNAL PMlTIOIi "1& ~PP!.lCATJcm FOR TEKf>OAAij iijjUH;J lOll IHo PERHANI!IJT r UIlCftcln" '~t 1S of 16-- HOLYI'HA/PSL
A996 (
JONATHAN NELSON - # 14900700 BROUDE, NELSON &'HARRINGTON, P.C. 1000 Coltll\'\erce Bidg. 307 west seventh S~reet Fort Worth, TX 76102 (817) 335-1615 (817) 335-1603 (FAX) ATTORNEYS FOR PLAINTIFF CHURCH OF THE HOLY APOSTLES
CERTIFICATE OF SEnVICE
This is to certify'that a true and correct'copy of the above. and fo~egoing document was forward to all counsel of record on this the 15th day of February, l
., I,
HOl Y/1-1A1PSl
A997 - \: , . ".~ .. " , '( - , . .~ ..
Lot 2;R,. B.lock 1', Kin, ACl;es 1 Addition to, the . . City of Fort Worth, Tarran't C~unty I 'l'exas " . beinq a revision ot·Lots J, 8, 4, a portion ot Lots 2 I 5, 6 I B I 9,. 10,1 l.l and. B~ock. ,:1.2, :s lock. , 1 l1nd a portion ot :Lots 1, 2 nnd J; Block' 2, ,
'. Kin Acres ,Addition as'Recorded in Vol. 388-5, page 79, ~eed Records, Tarrant county, ~exas .. ' "and a part· at the Nancy .Casteel S\l.rVey, '.Abstract i349 and b, portion o:t: Rura street :~: I ·~I ••• ; \ :-.... .;~::. , .' .. -... .- : adj ac::ent to 13 lodes'- 1.'. .8,· 2. '
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exHIBIT
j I \\ p.: A998 .;., ...... :r .. , ...... _ .. ~t.' .... ' """." .... -.'- ...... , '.,,,",\ '.. " "\ , J" ['" "I ,,'
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. ' . STANDIN<;Y CO~ ... I'.· , .~ .. 'W'E; THE UN-oERSIGNED MEM:.BEM OF 'mE STANDING CO:MJvD.TI'EE OF'IEE
:. ' . EPISCOP.hL PI6cEs'E OF FORT, WORn!., FIND THAT ~ REV. ~ ¥CCA1JL.EX
OFT.BlS DIOCESE HAS OPENLYRENOUN~ 'J.1!£ ~ DISC"J:PI..IN:e, ~ , . ... - . . . .WORSHiP OF tHis cH"tJIiea BY A'IT.EMPTING TO TlJG!, HrM:sELF ArID TIrE .. PEOPLE AND PROtrE.R.TI OF HOLY ~STLES EPISCOPAL cs:uaCH TO ~ .. JURISDICTION OF THE ANTIOcHlAN ORTHODOX C~ ARCHDIoCEsE OF NORTH AMERICA; A RELlGIOUS JroDY NOT m COM1r.UINIqN WITH TIlE ...... ' .. /' . EPISCO~AL ClIURCE:. A....k'FIDAvrrs HAvp:.. BEEN PRESENTED TO US ON THE ACI10NS OF'TIm REV. M..L MCCA'C.JLLY AND 'Ilm VESTRY OF nOLY AFOSn..:es
ON SUNDAY; 4 oqOBER 1m, ARANDONING TlIE CO'tttMUNION OF THIS CfIURCH AND ON OTHER ltElATED A.CTIONS AT DIFFERENT TIMES BY TEE REV. \ ,'~ MCcAUW) WHO ,IS A iro:sBYI'ER CANO~1}CALLY RESlDEhllJ1 TBlS _ I. t ~ DIOCESE.. UNDER. NATIONAL '~,o~ IV. 10.. V(E REC.O:MMENJ,) 11rAT OUR \ I . _, BisHOP DiEIBIT'TRE m~ MCCAULEY FROM OffiCIATING,- APTER .- -. M.L. . .
\\ 0" A999 ' .. ':-1;..". ClIo' ~¥ .... ~-.~ """" .; ,,' -..~.... f ...... W...... : 0 ... ~( ..... ~__ . ,_ ..... ~ ... _.
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THE STATE OF ~. COUNTY OF T~ )
. BEFORE ME., TIIE UNDE.'RSIGNED AUTHORrIYt nus DAY I»ERSONALLY : APPEARED THE ABOVE NAlYfED PERSONS '. ~O~ 'rO ME TO:SE THE F·ERSO!-{S WHOSE NAMES ARE SUBSCRIBED TO THE :FoREGOING : INSTRUMENT. AND ACKNO'WL'EDGED TO Mi nr.,(T 'IlrEY EXECUTED T.ErE SAME FOR THE FUR.?Q.SES TEERElN E.XPRESSED .. . .'. . .' . . .. ~5'- - • GrvEN UNDER MY F!AND AND SEAL OF OFfl~E UllS,L.DA.Y OF ",bb:r,. ... Im~ .. ~~., I~UC; "ANn FOlt T~ CO-pmYt TEXAS . .
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I. _ '., A1000 " '}) ." ( I . .' . ~ ,~ •••• u_ .... _::_ ... :.~::;~: \~ .:.-::,,:~·~r._.
...... '" ... :. ":", THE EPISCOPAL D·IOCESE OF FORT W<;>R1
.', " Rcy. M.. L. McCauley lIobt ~,t.k,;, . 3.9'00 Lo~ A'fell~ Fort Worth, TX 761206
, , ~ Ulitlcr N.:tlOxud Cuon IV. lO~ you ~ lnhlblW for Jix :nionth! h-orct Cltth:I.~ . 'A1bchod to UU, letter la R copy or tht: s~dln.t Co.l:Pmitt,a,.ets :..~&n. Unl~J :you mt.b:in 8b: .. toonth, r-otruct tbe.1Icb c~ or ckcl&:n: t.bA:t the ~cls ~1~ in t.ht ~te an- btl~ .Sl.,l'elttilCl: or, depo:-sition!roln tM tn.lnlstrj ~ ~ 1m~
FtrltbMl:r ~ , .... +~':-'.~ .. Bbl»p or Fort WOt1h
(j EXHIBIT [ __\-\._0_~F_ )
A1001 EXHIBIT 2
, . i ( (
TO: To The File FROM: Jon N?lson
RE: Holy Apostles - Outline of Things to Prove DATE: AUgust 9, 1993
. OUTLINE OF THINGS TO PROVE (. }I ~ R <. j.{ ~ r:- {flt: . _ " r'i tj~ / r l~ Ii Holy Apostl·es .(:lcts through its Rector 1 Wardens and Vestry. .... ' )Lt0'/lfY.,/m . .,/' rd V 2. Its nect·or is ~he Reverend Canon Jan\e,s P. DeWol fe I Jr .. .•l1 t· . ,5't'zmf!i' 1'0 3. The Schismatic and purported Church _bf~H01Y Apostles is an unincorporated association or n6t- or-profit corporation organiz~d for religiou~ purposes ~s a ember of the Antiochean Orthodox Church. It ~s c-oroposep of ~ p.ersons vme have heretofore been parishi.oners of~ Church of the Holy Apostles but have become members in the Antio.chean Orthodox Church in a.coorda~ with action of the sometime v~stry on or about ootobe 4.J' ·1992, as described herein.below I and subsequent aots describe· hereinbelow • .. c;,\ L ~.( 4. The EpisCOP;;l,t Diocese of ·Fort Worth is situated in all or parts .of -twenty-four counties in North Central Texas, lncludlng '-'Tarrant County I Texas. <~at .114) 5. It is a diocese o·f the P.rQtsSt:tnlt 'isoopal ·Church -' the United states of America. (urrhe Episdo"i~l ChurCh") I which is ·a confederation of dioceses s.ituated primarily in the United
states t but also in Latin America and Europe.
6. The Bishops of The Episcopal Church are members of the Anglio&h communion, which is composed of Bishops of the church Of Ensrland and numerous other\ churches world-wide. v 11 N"~("1CA N' po 7. The Anglican Communion is i tsel f in cOlmnunion I reciprocally acknowledging validi·ty of each others Orders and sacraments, with certain other churches around the world.
8. The Anglican communion, The Episcopal Church and the Episcopal diocese of Fort Worth are not in communion with th.e various Orthodox Churches, including the Antiochean Orthodox Church. 9. Consequently, no member of the Antiochean Orthodox church is in cOllllnunion with the Episcopal Bishop of Fort Worth. '~'-(
Memo - Things to DO August 9, 1.993- Page 2
)0 10. The diooese is an hi~rarchial church, meaning: a. each parish consists of members of The Episcopal Church confirmed in or transferred -to that parish, who are in communion with the Bishop and the parish being in union with the diocesan convention;
b. each parish exists by virtue of its creation by the Bishop and the diocesan convention; c. each parish is subject to the jurisdiction of the Bishop and the constitution of the diocese;
d" the government of the parish is subject to review and control of the Bishop and d:iocesan institutions in various important particu;I.ars, including the use of real property used for religious purposes; -CtuA;V..- 4~ e .. legal title to such real property is r.eposed in the Diocesan Corporation rather than in the parish; and
f. prie-sts and dea.Cons serving in the parish either are ordained pursuant to approval -of diooesan bodies" and the Bishop or, having been ordained in another diocese of The Episcopal chUrch or other church wi th ~lhich the Diocese is 'in communion r may become canonically resident and "serve in the Diocese as a priest or deacon only with the consent of the Bishop. 11. Under t"he constitution of the Diocese ahd under canon law, no person luay be a member of a pari.sh who is not a member Qf The Episcopal Church t and no person may serve on the vestry of a_ parish who is n,ot a member, canonically resident r in that parish.
12. Further, no parish which is affiliated with the Antiochean Orthodox church can be in union with the Convention of the Diooese . .r,/h:' ~ H wedFt p;ll"~- 13. a Holy Apostles was initially organized as a non-self-suppo)::'ting mission of the Diocese on May 5, 1965. 1 / ";..-;, J~-/ry''' ) f'!.-~-I . 't' 0\ " r\',ln 1 Jh-11 r;. Y'" r'///ijr,1 /1/".1 ?".IV. / ',l""r.' /"1'1 . .J •• ~-~ :i {rT IJ( J. "S~ )~i7, Memo - Things to Do August 9, 1993 Page 3
~,.
Both the Diocese and All Saints' Church, a parish of the 1/ Diocese for many years r gave'. Holy Apostles financial as·sistance both for its operating budget and for the . acquisition of real property on which to build a church. fa-)," l;r A J} /It -"11,1 /'tr k. i5. Such real property was sold and the sale prooeeds were used in a.cquisition of the Real property described on Exhibit HAn on whioh the parish 's ·.improvement are presently located • . .~ .f""' ,L 1-6 'The funds provided by the Diocese and by .All Saints' Church ~ 0'v'l ~'.J-. , , 'were gl.f.ts.,to... Ho.ly.... C\P..ostles, rather t~'~m lO.ans ,.. and ....w~r~ .,n.~x~x;- repJ;ud.jr· Holy Apostle'ei" has "als:o . received financial"assistance"'\ h1 the form of a loan from the Crump Fund for construction of , improvements on the RealPt'ope.rty I s. aid loan being made at a ) (lb.el....ow-market_J.nterestrate of 2% per annum. " - .. -~' ...... _-. ~ .. ;.~ ...... ~ ••• '~_"_";6 ...... ~---...., ~-- ..... -...-.t_...... :r---...... """","",-... :...... _""" ...... ~ ...... ,...... -"r> ...... -" _1'_ ," 17. The Crump fund by its trust indenture may lend only to Episcopal parishes, and such below-market loan conveyed a substantial benefit for which Holy Apostles would not qualify otherwise and used Crump moneys vlhich would have otherwise been available to some other episcopal parish. 18 .. ' Holy apostles was admitted to the. di"ocesan convention as a parish on october 6, 1:979. . / .,cd tt "" ("" \!'\ r; '(, I 1¥. Defendants M9Cauley and eleven of the ~ twelve members of the vestrYj -thereby abandoned the communion' of the Episcopal Church and ceased to be qUalified to serve as a priest or as a member of the vestry under the constitution and Canons of the Diocese and of The Episcqpal Church and canon law. /J.t-£V'PA/ ,mffMIJ£~~ tJl.i li.1 ~'I""\I(;':: . '1 20. D.efendant Mcca~ has /ubsequently/ been reordained as a T"' .r· . ," ~ prl-est, and the Vestry Afa.¥B--been chrismate.d as members of the
Antioche~~ orthodox ChurCh~~ ____ .~I,--, .... ~f./ I'?; ~!"/,,, 11r2., . 21. On october 5, 1992, pursuant to canon law, the Bishop reported these events to the Standing Committee of the Diooese.
. ~ '.' r(
...• ) Memo - Things to Do August 9, 1993 Page 4
. D1:1 22. The .Standing Comntitte.e, having ascertained and considered the f-acts, deterlnined by a vote of at least three-fourths of its members that Defendant McCauley had abandoned ·the communion of The Episoo_pal -Church and of this Diocese ..
a. A oopy o-f such determination by the Standing committee is attached hereto as Exhibit "B" and is hereby inoorporated by ref.erence •. 23. 1!'he Bishop thereupon affirmed such determina tion py the standing Comtnittee and inhibited Defendant McCauley from officiating in the .Dioce-se,.
a. A copy of such inhibition is attached hereto as Exhibit ne" and is hereby incorporat~dby reference ... '-? [)v 24. Upon such inhibition the office of the Rector of Holy Apostles became vacant, and the Bishop became Rector §X officio.
«; 25. Having been informed that the unlawfully constituted Vestry of po Holy Apostles had abandoned communion with The Episcopal church, on .October 5,1992, the Bishop sorrowfully accepted and acquiesced in their abandonment of communion with him and thereupon pronounced each lay. member of the Vestry excommunicate. 26. The Bishop thereupon furt er pronounced that all vestry offices of Holy Apostles ar vacant, since all members of the Vestry had abandoned their qualification to hold such o_ffice under canon law. Subsequ tly it was learned that one member of the Vestry, Robert R dg n, had not participated in ·such actions, and the prono ncement of excommunication was ineffective as to him.
27. canQnic~l prooedure was commenced to' accept Defendant Mccauley t s abandonment of communion and to depose him as priest.
28. Pending -s·uch proceeding Pefendant McCauley resigned his' ministry as priest on November 26., 1992, which resignation was accepted on December 7, 1992. ( (
~ ," ) Memo Things to Do August 9, 1993 Page 5
~( f/rr£ t. 1I t..JliZ.C J..f 2 .,..11.[1
." P~ .29. On october 5 fr. 19~' the Bishop called a special meeting of the parishioners of H61y apostles for Sunday, October 11, 1992, to r' .,~,---. fill the vacancies on the vestry and to oall an interim ~ .,J. Rector . .. \ ~ "- ... :-~ft, a 3\0 .~t such election' Robert Rigdon ~ "i.George· K~;J2S~k I Ann Heinz 1 ~.~~ . Q~~ Hel~.:tl.;MA9.a~sson,· Dave Hqebner I Ivan Ji:had,.. dck, ChC;rra ;:.J:' ." • ". Wrlght and ~rJ.s Boy]t were elected -to the vestry and cont~nue _ J6.1' yto serve as sti.ch·~ "S?lfi} r.r~(1I-1&ity . r;t{. ___P "'r 7),//.;)"' >,/»pf1i.~/JIY7Y~r .ffft.-f··.. . •__ .__ ._' _.___ • -.-.. W.tA/ .P~fo{.t·"'I'J7 /1~ J71/,"1/3~n,. e>,f '7)J~ v..r$r&. ol'( ---3. The Rev. Canon James P. DeWolfe, Jr • ...fta.i; .accepted ~17i.7 .q;~~ ~j /'i'?'trt..);1T,. Rector...! AIPkA tl f'II/"; t;'qN~ V On-~?IAI ~J!4A~,.:I~ ~-~. ~ n t:J 32. On october 5, 1'992/ demand, was ma:de on Defendants for v uncontested possession of the Real Property and imprOVements of Holy Apostleso Such demand was refused.
pI> 33~ Need to obtain a copy of the deed. ! .. , to..... ,· 34 v Need to obtain a copy of the ·agreements 'betwee'n the corporation and others with regard to its powers and the property it ownso 35. Need to find out when the property was acquired.
cc: ad-al Notebook ~ Investigation Pam Lambert John Oroude
HOl YIHEM02JPKR EXHIBIT 3 ( ("
CAUSE NO~ 153-144833-92
CORPORATION OF ~HE EPISCOPAL § IN THE O!STRICT COURT DIOCESE OF FORT WORTH, § CHURCH OF THE HOLY APOSTLES § § vs. § TARRANT COUNTY I TEXAS § ~HE REV~REND.MwL.·MCCAU~EY, § SOMETIME RECTOR ~D CHAIRMAN § OF THE VESTRY OF CHURCH OF § THE HOLY APOSTLES; ALBON § HEAD., SOMETIME SENIOR WARDEN § AND STEVE BLACKMAN, SOME~IME § ~UNIOR WARDEN OF CHURCH OF § THE HOLY APOSTLES i .. HORACE § BOOTH., ROMER -COX, BE~KY § .HEAD, ROBERT MILLER, ROBERT § PALtmR IJElrn .·RICHARDSON , § D9N SHIPE, PAUL-SNELL, § AND JAMES'CHAREONNET, SOMETIME § MEMBER OF THE VESTRY OF CRUnCH § OF THE HOLY APOSTLES; AND THE § SCHISMATIC AND PURPORTED CHuRCH § OF THE HOLY APOSTLES § 153RD JUDICIAL DISTRICT
PLhINTIFFS' MOTION FOR SUlamRY JUDGMENT TO THE HONORABLE JUDGE Oli' SAID COURT:
NOW COMES the CORPORATION OF THE EPISCOPAL DIOCESE OF FORT'
I J. ! WORTH ~nd CHURC~ OF THE HOLY APOSTLES, Plaintiffs h~rein, and files ! ; this their Motion for Summary Judgment and would show the Court as
follows:
1 . There is no genuine issue as to any) material fact and,
therefore, Plaintiffs are entitled to summary judgment as a matter
of law.
2. The Affidavits of Bishop Jack Iker, Reverend Canon Billie p . Boyd, Reverend Canon Jamg.J:,;r ; 'riew6j1jf~, Jr' l Robert J. Rigdon, and s~n ~~;: .\ ~; .>. ~ .tOrl ',. . George J. Komechak, at'cached ~:JVrhibits I1A" through liE" establish . ,lZ: h! ~a £6.
PLAJIITrFFS' HOIlON FOR SWiMMY JUDG.HE~r..t~~?g~·1 of 9 .. ..;~:f.";fJ. HOL Y/1- 2/PKR
A1002 0'-
the fol.lowing facts.
I.
FACTS
o , 1. The Episcopal Diocese of Fort Worth is situated in all or parts of twenty-four counties in North Central Texas, includil.19 all of Tarrant county I 'I'exas. It is a diocese of The Protestant Episcopal Church in the United states of America (UThe Episcopal Churchll), which is a confederation of dioceses situated primarily
in the united ,states., but also in Latin America and Europe. 0 The Bishops of The Episcopal chgrch are members of the Anglican, Communion, which is composed of Bishops of the Church of England and numerous other A!lglican churches world-wide. The Anglican communion is itself in communion, reciprocally aoknowledging validity'of eaoh others Orders and Sacraments, with certain other Anglican churches around the world. The Anglican communion, the
Episcopal Church and the Episcopal D~ocese of Fort Worth are not in communion with the various Orthodox Churches, including the
Antiochean Orthodox church. consequently, no member of the Antioche'an Orthodox church is in communion with the Episcopal
Bishop of Fort Wort~. I 2. The Episcopal Church, originating in th~ North Al'nerican I colonies as a part of the Church of England, is an historic Reformat.ion church. It separated from the Roman Cathol io Church ,in I I the sixteenth century but pres~rved catholic faith and order, I including the Apostolic sllcceqpion of its Bishops and the three- I ! !
PLAlIHI FFS' Mono» FOR SUMMARY JUDGM~I/T - Page 2 of 9
1I0LY /1-2/PKR
A1003 ( fold Orders of Bishops, Priests and Deacons. The Diocese is an hierarchial church,' meani.ng: 1) ~ach parish consists of members of
The ~piscopal Church con~irmed in or transferred to that parish, who are in communion with the 'Bishop and the parish being in union with the dioc~san convention; 2) each parish exists by virtue of its creation by the ,Bishop and fhe diocesan convention; 3) each parish is subject to' the jurisdiction of the Bishop and the
I to Canon .30~ 5) legal title to such real'property is reposed in the
Diocesan Corporation rather tha~ in the parishi and 6) priests and deacons serving in the parish either are ordained pursuant to approval of d10cesan bodies and the Bishop or,l having been ordained i~ anoth~r diocese of The Episcopal Church or other church with which the Diocese is in communion, may become canonically resident and serve in the Diocese as a priest or- d.eacon only with the consent of the Bishop. Under the constitution of the Dioc~se and 'under Canon laWr n? person may be a member of a parish who is· not a member' of The Episcopal Church, and :no person may serve on the
·vestry of a paris~ who is not a member, .oanonically resident, in that parish. Furthe:r:-, no parish which is affiliated with the Antiochean Orthodox Church can be in union with the convention of the Diooese.
'PLAHITIFFsr MOHOII FOR SUMMARY JUOG~ENT - Page 3 of 9
HOLY/1-2/PKR
A1004 (
3; Holy Apostles was initially organized as a non-self- supporting mission of the Diocese on. June 12, 1964. Both the Diocese and All saints' churlh, a parish of the Diocese for many years, gave Holy Apostles financial assistance both for its operating budget and for the acquisition of real property on which to build a church. The funds provided by the D~ocese and by All Saints' Church were gifts to Holy Apostles, rather than loans, and ·were never repaid. Holy Apostles has also received financial assistance in the. form ·of a loan from the Cr.ump Fund for' construction of improvements' on the Real Property, said loan being made at a below-market interest rate of 2% per annum. The Crump
Fund by its trust indenture may lend only to Episcopal pa~ishesr~ and sucn below-market loan conveyed a sUbstantial benefit for which. Holy· Apostles would not qualify other\"ise and used crump' moneys which would have otherwise been aVailable to some other Episcopal parish. Holy Apostles was admitted to the diocesan convention as
a parish on October 6 1 1979.
4. Defendant McCauley gradually a Vestry
uncanonically and un~awful1y elected by plurality rather than
majority vote, 'vhich assisted his enterprise. . In early 1.9~2,
Defendant McCa~ley began a public campaign to lead parishioners of
Holy Apostles ~to the Antiochean Orthodox church. Efforts by the
Bishop and by other members of the Diocese to dissuade Defendant Mccauley and the unlawfully constituted Vestry, were unsuccessful. At the conclusion of two services on Sunday, october 4, 1992, the
PLlllNTI fES' MOTlOII FOR SUMMARY JUDGMENT - Page 4 of 9
HOLY/1-2/PKR
A1005 (
Senior Warden announced to the parishioners that at 7: 00 that morning, the vestry had unanimously voted to leave The,Episcop'al Church and to petition to affiliate w,ith the Antiochean Orthodox
Church. At one service on october 4 I 1.~92, De~endant Mcca~ley made, such announcement. Defendants McCauley and eleven of the twelve members of the vestry thereby abandoned the c01lllnuniqn of The Episcopal Church and ceased to be qualified to serve as a priest or as a member of the vestry under the Constitution and Canons of the
Diocese and of The Episcopal Church a~d canon law. Defendant Mccauley has subsequently,' on November 29, 1992, been reordaine.d as
a deacon, and the eleven vestry members and the members of the
pari~h were chrismated as l1)embe~s of the Antiochean··orthodox Church
on December 13 1 1992.
5. On October 5, J.992, ·pursuant to canon la'tq, the Bishop reported these events to the Standing committee of the Diocese. The ' Standing Committee, having ascertained and considered the
facts, determined by a vote of at least three-fourths of its' members that Defendant'Mccauley had abandoned the communion of The
Episcopal Church and Qf this Biocese. ' The Bish.op thereupon
affirmed ·such dete~ination by the Standing committee and inhihited
Defendant Mccauley ,from officiating in the Diocese. Upon such
,inhibi tion the office of the Rector of Holy Apostles beca.me vacant I
and the Bishop became Rector ~ officio. 6. Having been informed that the unlawfully conetituted
Vestry of Holy Apostles had abandoned COlllll\~nion with Tp.e Episcopal
PLAINTIFFS' Monon FOR SUMMARY JUDG~IENI - Page 5 of 9
,Hal Y/1- 2/F:KR
A1006 (" (
Ch'\J.~ch, on October 5 ( .1992, the Bish:op sorrowfully accepted :and
acquiesced in their abandonment of communion with him and thereupon
pronounced e~ch lay -member of the yestry excommunioate. The Bishop thereupon further pronounced' that . all vestry offices of Holy Apostles are vacant, since all members' of the Vestry· had abandoned
their qualif.ication to hold such office under canon law.
Subsequently it was learned that one member of the Vestry, Rob~rt
Rigdon·had not participated in s~ch actions, and the pronouncement
of excommunication was ineffective as to him. canonical procedu~e commenced to accept Defendant Mccauley's abandonment of communion and to depose him as priest. Pending such proceeding, Defendant McCauley resigned his ministry as priest on November 26, .1992,
which resignation was accepted on Dece:mber 7, ~992 •. 7 . On october 5, 1992, the 'Bishop called a special meeting of t?e parishioners of Holy Apostles for Sunday, october 11, 1992,
to fill the vacanc.ies .~n the vestry and to cali an interim Rector. At such election, Robert Rigdon, Ann Heinz, Helen .Magnusson, Dave Huebner, Ivan Shadwick, and Charra wright were elected to the Vestry and continue to serve as such. The Senior Warden is Robert Rigdon and the Junior Warden is George. Komechek. Subsequently, at their yearly meeting on January 10, 1993, George Komechek, Ted Roe and Doris Boyd were also elected to the vestry. The Rev. Canon James P. DeWolfe, Jr. has accepted a call as Interim Rector.
PlAnm FFS' ~IOTION FOR SUMMARY JUDGMEIIT - page 6 of 9
HOlY/1-2/PKR .
A1007
."~ (.
8. On october 51 1.992 I demand was made on Defendants for
uncontested possession of the Real Property and improvements of
~oly Apostles_ Such demand was refused. 9. Many of the loyal parishioners of Holy Apostles have pointed out their financial 'contributions and in addition the
special, unique furnishings and fixtures given by thel'D as memorials
to HOl'y Apostles and fave noted that it was nev'er their intent that such gifts and memorials be converted to the use of the Antiochean Or'thodox Church_ II. ARGUMENT
1.. Those persons acting in concord with the Defendants have
con'stituted themselves. as the. Schismatic and Purported Church of ! I the Holy Apostles. Such persons Episcopal Church, and ~uch Schismatic and purported Holy Apostles is' not in union with the Diooese, all ~s required' by canon law. The Schismatic and Purported ChurCh of the Holy Apostles is a new creation, having no relation to Holy Apostles and no right to its property. 2. In a hierarchical church,structure, such as the Diocese, the civil courts should defer to the actions of the ecclesiastical authori ties determining the identity of the loyal .group of members, PlAJlII[fFSI MOTIOIl FOR SUMMARY JUDGMEUT ~ page 7 of 9 HOLY/1-2/PKR A1008 officers and clergy. . Where a division, oocurs in 'a parish affiliated with the Dioo'ese, and a dispute arises as to the ownership or control of the parish's property, the members entitled to m'lnership and control are those .parishion~rs adhering to and sanctioned by the Diocese. Therefore, Plaintifis are entitled to legal and ec;ruitable ownership of the prope.rty in question as a matter ot law. WHEREFORE, PREMISES CONSIDERE~, Flaintiffs, CORPORATION OF THE EPISCOPAL DIOCESE OF FORT WORTH and CHURCH OF THE HOLY APOSTLES pray that their Motion for Summary Judgment be granted; that Defendants be ordered to vacate the property in question and return all personal property and ot~ler assets belonging to the Plaintiffs 1 that Plaintiffs recover their costs; and that they have such other and further relief to which they may show themselves to be justly enti.tled. Respectfully submitted, FERRARA & KENSEL 217 Overton Park Bank Building 4200 South Hulen street Fort Worth, TX 76109 (817) 738-7000 (a17) 73B-3344 (FAX) ATTORNEY F0R PLAINTIFF CORPORATION OF THE EPISCOPAL DIOCESE OF FORT WORTH PLAINTl FES' MOT 1011 fOR SU~'MARY JUDGMEnT· Page 8 of 9 . HOLY/h~/PKR A1009 ( \ ( Jonatha D.F. Nelsop - # 14900700 v GOULD, BRaUDE I & NELSOli{ ~OOOCommerce Bank ~ldg_ ,,307 West Se.venth street Fort Worth, TX 76102 (817) 335-1615 (817) 335-1603 (FAX) ATTORNEY FOR PLAINTIFF CHURCH OF THE ROLY APOSTLES CERTIFICATE OF SERViCE io This is to certify that on the 8" 'day of December, J.993 a true and correct copy of .the above and' foregoing Plaintiffs' Motion for Sununary Ju.dgrnent has been maj,led to: Rober~ s. Travis VIA' eM - P 909 063 301 CANTEY & HANGER ,. 210Q.Burnett Plaza ! 801 cherry street Fort Worth, TX 76102 PLAINTIFfSI Man 011 FOR SUMHARY JUDGMEllT - Page 9 of 9 HOLY/1-2/PKR A1010 ~-- ·.A· " ) \. A1011 CAUSE NO. 153-144833-92 CORPORATION OF THE'EPISCOPAL § IN THE DISTRICT COURT DIOCESE OF FORT WORTH, § CHURCH OF THE .HOLY APOSTLES § § VS. § TARRANT COUNTY I TEXAS § THE REVEREND M.L. MC~AULEYI et alA § 153RD JUDICIAL DISTRICT AFFIDAVIT OE BISHOP JACK IKER STATE OF TEXAS § § COUNTY OF TARRANT § BEFORE ME THE UNDERSIGNED AUTHORITY, on this day personally appeared .BISHOP JACK IKER, who, being by me duly sworn upori his oath deposed and stated as follows: UMy name is Bishop Jack Tker and I am the ~ishop coadj utor of Fort Worth. I am over the age of eighteen years and am in all ) re~pects competent to make this affidavit. I have personal kn0Y'led~e of the ~acts stated herein a?d they are trUe and corre·ct. "The Diocese is an hierarchial chu:r:ch/ meaning: 1.) each parish consists'of members of The Episcopal Church confirmed in or transferred to that parish, who are in communion,with the Bishop and the parish being in union with the diooesa~ convention~ 2) each parish ex~sts' by virtue of its creation by the Bishop and the I diocesan convention; 3) each parish is subjeot to the jUuisdiction of the Bishop and the constitution of the diooese 1 4) the government of the parish is subject to review and control of the Bishop and diocesan institutio~s in various important particulars l AFfIDAVIT OF BISHOP JACK lKER - Page 1 of 5 HOLY/AJ:F2!PKR E~HIBIT.L A1012 including the use of J;ea,l property used for religious purposes I including those pursuant to Canon 30; 5) legal title to such real property is r~posed in. the Diocesan C.orporation rather than in the . . parish; and 6) pries~s and deacons serving in the parish either are ordained pursuant to app.l:oval of diocesan bodies and the Bishop or I . having been ordained in another diocese of The Episcopal Church or other ohurch with whioh the Diocese· is in communion, may become . canon~cally resident and serve in the Diocese "as a priest or cleacon only with the consent of the Bishop. "The Bishops of The Episcopal Churoh are members of the Anglican communion, whioh is composed of Bishops of the church of England and numerous other Anglican.ohurohes world-wide. "The Anglican Communion is itself ;in communion, re.ciprocally . acknowtedging validity ·of· each others Orders and· Sacraments I with certain other Anglican ohurches around the world. liThe Anglioan Communion, The Episcopal church and the Episcopal diocese of Fort Worth are not in oommunion vTith the various Orthodox Churches, including the Ant~ochean Orthodox Churqh. "Under the Constitution of tue Diocese and under Canon law, no person may be a member of a parish who is not a member of The Episcopal Church, and n? person· may serve on the vestry of a parish who is not a member 1. canonically resident, in that parish. Further I no parish which is affiliated with the Antiochean Orthodox Church can be in union with the Conv~ntion of the Diocese. 'AFFlDAvn OF BISlIOP JACK n:ER - Page 2 of 5 }fOl.Y/AFF2jPKR A1013 .\ ( nc~nseque~tly, no member of the Antiochean Orthodox church is in communion with the Episcopal Bishop of "Fort Worth. liThe Schismatic and Purported Church of the Holy Apos·tIes is ·an . unincorporated association or not-for-profit corporation organized for -religious purposes as a member of the Antiochean orthodox Church. It is composed in part of those.persons who have . heretofore been parishioners of church of the Holy Apostles but have become members in the Antiochean orthodox Chu~ch in accordance ! with action of the sometime vestry .on or about october 4, 1992. liOn October 5, 1992, pursuant to canon law, the Bishop reported these events to the Standing committe~ of the Diocese. "upon such inhibition the office of the Rector of Holy Apostles became vacant, and the Bishop became Rector §X officio. ilHaving been informed that the unlawfully constituted vestry of Holy Apostles had aba.ndoned communion with The Episcopa"l Church, on october 5, 1992, the Bishop sorrowfully accepted and acquiesced in their abandonment of communion "t'ri th him and thereupon pronounced each lay member-of the "Vestry excommunicate. "The· Bishop thereupon further· pronounced that all ve.stry offices of Holy Apostles are vacant, since all members of the Vestry had abandoned their qqalificat,ion to hold such o.ffice under canon law. SubseqUently it was learned that one member of the Vestry, Robert Rigdon, had not participated in such actions, and the pronouncement of excommunication was ineffective as to him. AFFIDAVIT OF BISIfOP JACK. IKER - Page :5 of 5 1I0LY/AFf2/PKR. A1014 ( ( 1I.o~ October 5, 1992, the Bishop called·a special meeting of the par~shioners of Holy apostles fo~ Sunday, October 11, 1992, to fill the vacancies on the Vestry and to call an interim R~ctor. 1I0li. October 5{ 1992, demand was made on Defendants for uneontested possession of the Real .property and improvements of Holy Apostles~ Such demand was refused. "Canonic·al procedure was commenced to accept the Reverend M. L. Mccauley's abandonment of communion and to depose him as' priest a uPending such proceeding Defendant McCauley resigned his ministry as priest on November 26, 1992, which resignation was . accepted on D~cember 7, 1992. ilDefendantMcCC!-uley has subsequently, on November 29, 1992, been reordained as a deacon, and the eleven vestry members and members ·of the Parish were chrismated as malObers' ·of the Antiochean orthQdo~ Church on December 13, 1992 . . lIThose pars'ons acting in concord -ylith the Defendants have const'ituted themse.lves as the Schismatic and purported Church of the Holy ApostJ.es. Such persons are not members of the tr~e Church of the Holy Apostles because they hav~ joined the Antiochean Orthodo:K Church a·nd thereby have abandoned communion w·i th The Episcopal Churoh, and such Schismatic and purported Holy Apostles is not in union with the Diocese, all as required by canon-law. The Schismatic and Purported Church of the Holy Apostles is a new c~eationf having no relation to Holy Apostles and no right to its property. AFFlDAVlT OF BlSHOP JACK IKER - Page 4 of 5 1I0LY/Ar:f2!PKR A1015 ( ".Further Affiant sayeth not." BI~P JACK fK:E:R; Affiant day of .- AfFIDAVIT OF BISHQP ·JACK IKER - Page 5 of S HOLY/AFF2/PKR. A1016 B A1017 i ! i . EXHIBIT 4 . BROUDE, NELSON & HARRr.NOTON, P. C. ATrORNEY$ AT LAW 1000 COMMERCE BUILDING 307 WEST SEVENTH STREET FORT WORTH, TBXAS 76102 (817) 335 -161S METRO (817) 654-3505 FAX (817) 335-1603 WATS (SOO) 677-1615 ~ONATHAN ~ ~ NELSON BOARD CERTIFIED CIVIL TRIAL-LAW TEXAS BOARD Of" LEGAL SPECIALIZIITIO"l July 24, 1995 Bishop Jack Iker EPISCOPAL DIOCESE OF FT. WORTH 6300 Ridglea Place #llOO Fort Worth, Texas 76116-5737 RE: Cause No. 153-144833-92 Corporation of the Episcopal Diocese of Fort Worth I Church of the Holy Apostles vs. The Reverend M. L. McCauley, sometime Rector and Chairman of the vestry of Church of The Holy Apostles, et al Dear Bishop Iker: Enclosed please find the original Settlement Agreement for your safekeeping. We have two separate page fours because one was signed by the defendants and one was signed by us. Bob Travis has a copy of the Settlement Agreement, and I have sent to the Court the Joint Motion to Dismiss with Prejudice and the proposed Order. Once the Order has been signed, this case is over. It has been a privilege and pleasure to represent both you and the Church in this matter, and if I can be of further service, please do not hesitate to call. ONATHAN NELSON IN/ca HOLY/1220 cc: Mr. Robert J. Rigdon 3105 Cortez Drive Fort Worth, TX 76116 EXHIBIT 5 B:ROnDJ.~. NEl.SO):\T & HARRINGTON. P. C. ATTORNEYS AT LAW 1000 COM'''':nCI: ElUII.OING 307 WP.:BT .sEliE NTH STREET FORT 'wORTH, TEXAS 71H02-8907 (917) 335-'615 METRO 654-3505 ~annon Charles A. Hough Page: 1 EPISCOPAL 'DIOCESE OF FORT WORTH 01/31/95 6300 RIDGELA PLACE SllITE 1100 ACCOUNT NO: 854-0.2·2B FORT WORTH TX 76116 STATEMENT NO: 24 ~ ______•• _____ 4 ______~ ____ A ______• __ ~ ______~--- •• --- ...... -...,.----.--.-.----- TAX 10# 75-22S44e9 FOR PROFESSIONAL SERVICES RENDERED ReV. M~ L. MOCau:ley r;':~:i; '. "~ ., ~ ;~:"-)' ~r J .'. • ~ :,i. 0J./04/95 PL Telephone call with Canon Hough re Jon NelsonIa recqmmendation. 13.75 01/06/95 PL Letter to Bob Travis re eXpert reports. 27.5·0 0.1/10/95 PL Telephone call with Gene Engl~nnan re status of Crump matter. 13.75 01/18/9.5 IN T-elephone call ·with Bob Travis re depositions. 35.00 01/23/95 IN Receipt and review letter from Plaintiff's at'torney re settlement; Telephone oall with Gene Engleman re settlement and foreclosure. 70.00 0 1/24/95 . IN :Review d~position of Hev. Stahl; Telephone call with Bishop Wantland. 350 .• 00 01/25/-95 PL Trip to Church to review dO'cuments; Review documents. 165.00 PL Telephone call with .Mike Kensal 're conflict with Friday. 13.75 01/26/95 PL Memo to Jon Nelson re inspeotion of documents. 27.50 PL Telephone call with l1ike Kensal re depositions and discussion of case. 13.75 BROUD~. NELSON & HA.RRINGTbN. PC. ATTORNEYS AT LAW IPOQ co.u·u:nCE BIJ1LOIIIG :)07 W($T SEVENTH ST.AEET FORT·WOJnu. TEXAS 7ei:os-e997 (91.?·) 335-1615 Me:TRO GJ54·3s05 Page: 2 rPISCOPAL DIOCESE OF FORT WORTH 01/31/95 ACCOUNT NO: .854-,022B STATEMENT NO: 24 Rev. M. L. 'Macauley TAX ID# 7S·22!34469 FOR PROFESSIONAL SERVICES RENDERED Ol/27/95 IN prepa're for 'and take Rev~ MaCauley's deposition. 840.0'0 01/29/95 J-N Prepare summary of Father .McCauley's deposition. 140 •. 00 01/30/95 IN c.o):'reot letter re deposition of Father M FOR CURRENT SERVICES RENDERED 1,815'.00 0.1/06/95 TelecoPY/F:ax 01/18/95 Telecopy/Fax 1.00 4.00 01/23/95 Telecopy/Fax 4,.50 01/31/9'5 Copy and Reproduotion 02/31/95 Postage 44.25 01/3.1/95 Copy and Reproduction 22.16 01/31/95 Postage 6.25 2.52 01/31/95 Long distance telephone expense 3.00 TOTAL EXPENSES 87.68 01/20/95 Reproduction out-af-house 19.65 TOTAL ADVANCES 19.65 TOTAL CURRENT WORK 1,922.33 B'ROUb'E, NELSON & HARRINGTON, P.C. ATTORNEYS A1' LAw 1000 COI-I"'C~CE OI.l'~O"iY .:\07 WEST DIOVI:NT>l GTR&I!:T FORT WORTH, TEXAS 7aJoa~a007 CQl71 335-I.6IS ME:TRO BS4··3!;iOS Page: 3 lPISCOPAL DIOCESE OF FORT WORTH 01/31/95 ACCOUNT No: 854-02,2B STAT~MENT NO: 24 Rev. M. L. .McCauley ------_.. - ---~-.-- ---.. _-_ .. _-----_ ...... - ---'---'-- ,------~ -_._------.-.- .. --~-~~-.-.------TAX ID# 76-2234469 FOR PROFESSIONAL SERVICES RENDERED 01/31/95 Payment from Retainer - 'rhank You -1,.922.33 BALANC!ff: DUE $0.00 ===::: Your Trust Account #2 balance is OPEN.ING BALANCE $3/962~27 01/31/95 Payment from retainer PAYEE: Broude,. Nelson & Harrington, P~C. -1,922.33 CLOSING BALANCE $2,039.9-4 Payments received after the date of this statement will be reflected on the following statement. I I I I I r.l.,~.. , ~-' .. - ...: ~ i . : .J@~ :.j;;, J{~4# ,'/(ri ./~ ·/lJ!1/i; .~~1~' ~r~~~··· ...... /J)u.·gJd: .. ~;;t;.?'iJ;. ~.' d..:~ . /.1'/J"" 1!J ~;·r{)..·,w.a ii."· jA ' ~T. '.ljlf' '" ,,/..4J'. ·M # •.. @~~ ,f;(/ i i I I "~~~--~·~~::::~l'~:·:::=:F:~-:::~=~~-~ I " REVOLVING FUi'm ;:~ : 3sn s., VI'. LOOP 621) PH. 921-3..)22 I 1: FOR'r WOl~TH" TEXAS 761S3 FEBRUARY 16 119~ r . I ~ • I _ ~~~~f BROUDE NELSON & HARRINGTON. P.C~ ~------~---$ 2.039.94 ~ f g I ..... ~ .. , ~I~ ~~ TWO TH.OUSAND~THIRTY-NINE AND 94/one-bundred------:------~------DOLIARS 1t <.l Jl! <.,.CH<.;.."' ...... ~ ...... "._w ...... ""CP'J"""'~_y ... _ ...... ,< __ ... "'"' .. t.r""" /1 f~ ~ . MOKtrY MARKtr' l>UJS I ! If I AKG'RICJ 1 BROUDE, NELSON & HARRINGTON, PC, AiTORNEYS AT LAW 1000 COMIoIEAep; aU'LtlINQ 307 wear S&VENTN IHRI!:ET FORT WORTH, TEXAS 7010.2-6997 (617) 336-1615 M fl'TRO (554-3505 lcannon. Charles A. Hough Page; 1 EPISCOPAL DIOCESE OF FORT "WORTH 03/31/95 6300 RIDGELA PLACE SUITE 1100 ACCOUNT NO: 854'-022B FORT WORTH TX 76116 BTATEI1ENT NO: 26 ------.-.------_. ------_._.. FOR PROFESSLONAL- SERVIOES RENDEflED Rev. M.L. NcCaulay 03/03/9-5 PL Draft I'1otion to Strike Experts. 5-5.00 03/05/95 IN Receipt -and review De'fend-ant t 31st supplemE!ntal designation of experts and amended anSltlers. 35.00 03/07/95 PL Conference with J-on Nelson re pre-trial hearing and status of trial~ 13-.75 03/10j.95 JB T-elephone call with Ted Roe regarding settlement developments in dispute ,;"i th orthodox Holy Apostles·; Conference with Jon .Nelson~ 70.0"0 03/14/95 JB -Conferenoe with Ted Roe t:o discuss sett'lement proposal for delivery to Orthodox Holy Ap.ostles. .105.00 03/15/95 PL :Locate General s·ett.lement agreement .form per John Broude's request. 13 .. 75 03/16/95 JB Revie'tol material from client on settlement negot"iations -; prepare draft of settlement proposal; Telephone call with Ted Roe regarding finalizing draft. 210.·00 03/20/95 IN Telephone call with Mr. Englemal1 re status. 35.00 03/21/95 IN Telephone call with lawyer for Crump Fund B.ROUDE. NELSO').\f & HARRlNGTON. PoC. ATTORNEYS AT LA-W 1000 aOMMt:ACe;. &VII.bltlC) :10)- WI!ST GCvlltlTH GTFlEET FORT WORia, TEXAS 7elOtH~997 C817) 335·1616 METRO 6S4-.'.IS06 I Page:- 2 EPISCOPAL DIOCESE OF FORT WORTH 03/3JJ95 ACCOUNT NO; 854-022B S']}ATEMENT -NO: 26 Rev. M.L. MaCauley ------.._------.------_.. _------TAX IOtt 15-2234469 FOR PROFESSIONAL SERVICES RENDERED ret;rarding payment; Telephone call with BO_p Travis regarding :same; Telephone call with Mr. Engleman regardlng same~ 105.00 PL Conference with Jon -Nels-on reg~rqing scheduling expert deposi ti-ons. 13.75 03/2J/95 IN Prepare Motion to force defendants to pay Crump Fund .payment; -Telephone call with Ted Roe regardihg statu-so 70.00 0.3/28/95 . PL C.onference with Jon Nelson regarding payment receiv.ed; Telephone call with court coordinator regar.ding cancelling hearing J ·Lett·er to BO'b Dav.is regarding same. 03/30/95 PL Letter to Bob Travis regarding dates for expert depositions by April loth. 27.50 FOR CURRENT SERVICES RENDERED '795.00 01/30/95 Mileage/parking Expense 4.50 03/29/95 ·Teleoopy/F.C\X 6.50 03/29/95 'l'ele'oopy/Fax 7.00 03/29/9-5 Telecopy/FaX 5.00 03/29/9'5 Telecopy/Fax 3.50 03/31/9·5 Tel'ecopy/Fax 1.00 03/31/95 Copy and Reproduction 27.50 03/31/95 Postage 15.80 BROUD·E, NELSON & IIARRIN·OTON, p.e, An'ORNEYS AT LAW '000 CO"'~I':RCI: DUI\;DIIlO 307 WEST 5EVUITH !lTRI:I:T PORT WORTH. rEXAS 7610a-6Q07 (SJ71 336-1816 METRO 684-.3505 I Page: 3 'EPISCOPAL DIOCESE OF FORT WORTH 03/31/95 ACCOUNT NO: 854-022B STATEMENT no: 26 Rev·. M .• L • McCauley TAX 10ft 75-2234469 FOR PAOFESSIONALSEAVICES RENDERED TOTAL EXPENSES 70.80 TOTAL CURRENT WORK 865.80 04/17/95 payment from R:etainer - Tl1ank You ..;865.8:0 BALANCE DUE $0.00 Your Trust Account #2 ba~ance is Ol?ENING BALANCE $3 t 303.33vpd 03/31/95 ApplyRet.ain~r 'CO statement #26 dated 3/31/95 J//I PAYEE: BNH "''86.5 .• 80 tf/!fi CLOS.ING BALA,NCE Payments received after the date of this statement. will be refl.ected on the following statement. 'BROUDE, NELSON & HARRINGTON. P.C. ATTDR·NEYS AT '-AW 1000 COMME'",ot BUILOINO 307 WEST S£Ve-NYII STREET FORT WORTlt. TBXAS 7610SH)907 (BI7) .335-1615 METRO· 654-3505 Eannon Charles A. Hough Page: 1 . PLSCOPAL DIOCESE OF FORT WORTH 06/30/95 63.00 RX.oGELA PLACE SUITE 1100 ACCOUN.T NO: 854-022B FORT WORTH TX 76116 STATEMENT NO: 29 ._------_._------TAX IDli 75,2234469 FOR PROFESSIONAL SERVICES RENDEAED Rev. 151. L. -McCauley 06/04/95 IN Receipt and review pr0posed settlement agreement, Review deed and March 16, 1995 letter and prepare correction. 14·0.00 0'6/05/95 IN Telephone oall w.ith Bbb Travis regarding redrafting settlement agreement. 3.5.00 06/11/95 IN Receipt ahd review original and. ·oorrected Settl'ement Agreement and transmit same. 35.00 06/12/95 PL ~el~phone ·call with Gene Engle~an regarding settlement agreement.. 13.1'5 06/13/95 PL Letter to 'Ted Roa regarding settl'ement agreement. 13.75 06/15/95 FL Prepare signature sheet for vestry members. 13.75 06/16/95 PL Prepare signature page for vestry; 'I'elephone call with Charra r.egarding Original Agreement ·sent to Mr. Roe; Telephone call ,,,i th Bob Rigdon regarding signatures; Letter to Mr. Rigdon. 55.00 06/19/95 PL Telephone call with Mr. Rigdon regarding requested s'ignatures on settlement agreement. 13.75 06/26/95 IN Receipt and review signed doouments and prepare 'BROUDE, NELSON & IL'\RRINGTON, PC. ATTORNE:,(S AT I.AW ,OQO COMMeRCe' B\lI~OINI;; ;107 W!!ST SiVllHYH .s'l'RIlIlT ($'7) .!I3S-ISIS METRO ElS4-3S0S Page; 2· lPISCOFAL DIOCESE OF FORT WORTH 06/30/95 ACCOUNT NO: ·B54-022B B1'ATEME:NT NO: 29 Rev. M. L •.MaCauley ------_._-- TAX 10# 75-22:34469 FOR PROFESSIONAL SERVICES RENDERED latter to Bob Travis regarding sante. 3.5. ·00 FOR CURRENT SERVICES· RENDERED 355.00 06/06/95 Teleco.py/Fax 6.·00 06/14/95 r1ilea-gejParking Expense 9.50 06/16/95 Milaage/Parking Expense 5.00 06/26/95 Mileag.ejParking E~-pense .5.00 06/30/95 Copy and Reproduotion \\ 5.25 06/30/9:5 Postage 1 .. 51 TOTAL EXPENSES (.\. 32.2·6 TOTAL CURRENT WORK 387.26 PREVIOUS BALANCE l, 1523.4·5 ·06/20/95 f1ayment - Thank You Check #164 -1,623.45 :BALANCE DUE $387.26 ======Billing Histox-y FEES EXPENSES ADVANCES PAYMEN'l'S 23,153.25 2,116.80 825.79 0.00 25,708.58 Payments received after the date of this statement will be reflected on the following statement. EPISCOPAL DIOCESE Oli FORT ,\VORTH 165 REVO~VINO FUf'tJ) ·3572 .8. W. LOOP ·820 PH. p:n"S322 FonT WORTH, TRXAS .1tH3S _19J!.L A'J 0111E ~OIlOEROF THREE .l1UNDRED EIGHTY-SEVEN and_.:26/100 -~~""------~---"'------~OOllARS . "'I)" l:i11'CC'F i5 .... t'V .... ~"Tn.U4otr A"I ....0Qj,.. H ....u:,. ;I!,~t""''''l:oIIIi:ay 'EllI:rQI\fUIQ(r ICOM"tTUTT~Utt:JU·'T '" ".~u. BROUDn:. NELSON & HARRINGTON, P.C, AT'fORNIi:YS AT LAW '000 CO ..... ERCl! BUILD'NG 307 Wl!:BT S~VEII:r1l S'I"fU;cr !?ORT WORtH. TIiJCAS 7010e'0997 (6"') 33$-1615 'METRO 6B4-3505 iiShOP Pope Page': 1 P!SCOPAL DIOCESE OF FORT WORTH 11/30/94 6300 RIDGELA PLACE SUITE 1100 ACCOUNT NO: 854-022B FORT WORTH TX 76116 STATEMENT NO: 22 ,--,'.------_._---- TAX 101# 75·2234469 FOR PROFESSIONAL SERVICES RENDERED Rev. M.L. McCauley 10/03/94 IN Telephone call with ·Mr. Engleman re meeting; Review appraisals. 105.00 1.0/06/94 PL T,~lephone ·oall from Mr. Engleman re send oopies of appraisals··.to· Ted ·Roe 'ahd· Mike l<:enz~l. 13.75 10/17/94 IN' Confer.e.noe with our side on '.lj,ow to proceed; Pr~pa.re draft of letter re alternatives. 350 .. 0·0 10/28/94 PL Tel.ephone· call from B6b Travis re lneeting date J Telephone. call with Ted Roe's office re moving; Tele~hone call with Bishop Iker's office re moving me~ting. 41.25 10/29/94 -IN Telephone call yli th Ted Roe re tteeting and. status. 70.00 10/31/94 ,IN Conference 'With Tednoe and Mr. Engleman and others re settlement discussions; Attend settlement negotiations. 385.00 11/03/9-4 IN Conference 'wi"th Pam Lambert re trial preparation. 140.00 PL Confer-ence with Jon Nel'son re status of case and hO~l to p;rooeed. 55.00 IN Draft 2nd A.mended Petitioni Draft supplemental des-ignation of experts;' Letter to Court. 420.00 BROUDE. NELSON & HARRING'l'ON. PC. ATTORNEYS I!'-T LAW .000 c:O ..... C.R(:E PUlLQIHCS 3p1 WC$T 6C"~N"H STRteT FORT WORTH. TEXAS 70102-6997 tel" 33&-.615 METRO 65"'-3501> page; 2 IpISCOPAL DIOCESE OF FORT WORTH 11/30,194 .ACCOUNT NO: 8"54-022B STATEl.fENT NO: 42 Rev 9 M·. L. McCauley ------~------. ------~ - ----~-- TAX 10117$·2234469 ... . FOR PROFESSIONAL SERVICES RENDERED 11/0:6/94 IN Telephone call with Gene Engleman re status. 35.,00 11/08/94 PL Letter to Bob ·Travis re d~position ·dates for MCCauley·' s :deposition. 27.50 11/14/94 IN Telephone call with Ted Roe re $100 i 0.00; Letter to Bob Tram re same. 3.5.00 11/18/94 PL Review dates for dep.osi tiona·, 13.75 PL R.E?vie~., Defendant I s Oes.ignation of Experts. 13.75 11/19/94 IN Re·ceipt and review· Defendant I s designation of experts and prepare l~tter resanle. 35.00 11/23/94 pt, D3::-att deposition noti-ce for. Rent. McCauley. 55.00 11/28/94 PL Revise MOCauly ·deposition notioe. 13.7.5 11/30/94 PL Conference with Jon Nelson re deposition of Rev Mccauley ,and items for him to produce at deposition. 11.00 IN Conferenoe with Pam Lambert re deposition of Rev MCCauley and items for him to produc.e at deposition. 28.00 BROUDE, NELSON & HARRINGTON, p.e. ATT,ORNEYS AT LAW 1000 ,?OMM£nc~ QUllDING ,:'I/)7 y.r£l;T .9EVI;NTH SYR&I:T FOR:r ~VOR'H. TI!XAS 76102-0997 C6171 335-/610 METRO G54-3S0s Page: 3 !PISCOPAL DIOCESE OF FORT WORTH 11/30/94 ACCOUNT NO: 854-022B RTATEMENT NO:' 22 Rev. Mo!'. Mccauley TAX IOU 75-22344eg FOR PROFESSIONAL SE;RVIOE$ RENDERED FOR CURRENT .SERVICES RENDERED 1,,847 .. 75 10/04/94 appraisal reports 1,000.00 10/26/94 Telecopy/F.ax 4.00 10/31/94 Copy and Reproduction 13.75 10/31/94 P6stage 17.50 11/30/94 Copy Clnd ReprOduction 2,9.2'5 11/30/94 Postage ' 12.06 TOTAL :EXPENSES 1,076 .. 56 10/05/94 Reproduction out-of-house 15.66 10/18/94 'Reproduction ,out-of-h:ouse 7.4'9 'TOTAL ADVANCES 23.1,5 TOTAL CURRENT 'WORK 2,947.46 11/30/94 Payment f~om Retainer - Thank You -2,947.46 BALANCE DUE $0.00 =:::;= Your Trust Account #2 balance is OPENING BALANCE $8,346,.17 10/04/94 Appraisal reports PAYEE: Marwitz Appraisal services -1 / 0'00.00 BROUDE, NELSO.l.'q &: IfARRINGTON; p.e. ATTORNEYS AT LAW 10QO COMIo4I:AC£ QUII.OIH 307 W,",IIT "'~VENTH STA£I>T FORT WORTH,11DCAS 7610IH~99'1 (917) 3:3!HElI$ METRO 654-3505 Page: 4 lPISCOPAL DIOCESE OF FORT WORTH 11./30/94 ACCOUNT NO: 854 .... 022B STATEMENT .NO: 22 Rev. M .. L. Mccauley TAX IDff. 75-2234469 FOR PROFESSIONAL SERVICES RENDERED llJ30/94 payment from retainer PAYEE: Braude, Nelson '& Harrington, P. c. -'2,947.46 CLOS.ING BALANCE Payments received after the date of this statement will b(;;! :r:~flected on the foll.owing statement. BROUDE. NELSON & HAR1HNG"1'ON, P.G. A!f'rORNEYS AT LAW 1000 QOMM£RCe BVII.OINO 307 WeST IIEVENTH $TR~6l' troRtwonTR, Tli·XAS 76102-6997 .(817) 3;3~-161S ME.r~O el's4-3S05 ~ Page: 1 EPISCOPAL DIOCESE OF FORT WORTH 12/30/94 6300 RIDGELA PLACE SUITE 1100 ACCOUNT NO~ 854-022B FORT WORTH TX 7611·6 STATEMENT NO; .23 FOR PROFESSIONAL SERVICES REND£:REO ·Rev. M. L. MCCauley 1,2/06/94 IN Receipt and review premium notice and letter to Defendant's attorney re :paying it. 3'5.00 12/27/94 J'N Conference with Pam Lambert re tria.l preparation; Receipt and review letter .from attorney for Crump Fund re payment; Te'lephonecall with Bob 'rravis re .payment; Telephone call with Crump Fund attorney re payment; Letter to Bob Travis re p.ayment. 210.0'0 .PL Conference with Jon Nelson; Letter to clients re alternatives; Letter to .clients re amended petition. 82.50 12/28/94 IN Telephone call with Chance re insurancei Telephone call with Bob Travis' offioe re property insurance. 35.00 PL Memo to 'filere 12/27/94 lneeting with Jon Nelson. 27.50 FOR CURRENT SERVICES RENDERED 390.00 12/07/94 Teleoopy/Fax 1.50 12/30/94 Copy and .Reproduction 3"1.25 12/30/94 Postage 7.69 TOTAL EXPENSES 46,44 TOTAL CURRENT WORK 436.44 12/30/94 Payment from Retainer - Thank You -436.44 BROUDE. N'ELSON & HAR~:rNGTON. P.C. Ar~ORNEY5 AT LAW 301 Wltll'r G&VION'r'i EiTIIEET ~O.RT WOnTn. TEXAS 16102-G007 (8171 335-1615 METRO 654-350$ I Page: 2 EPISCOPAL DIOCESE OF FORT WORTH 12/3.0/94 ACCOUNT NO: 854·.... 022.8 STATEMEN'r NO: 23 Rev • .M •. L. MCCauley TAX 10# 75...2234469 FOR PROFESSIONAL SERVICES RENDERED BALANC1!: DUE $0.00 :::::t:::;::== Your Trust Aocount #2 balance is .OPENING BALANCE '$4,398.71 1·2/30/9-4 Payment from retainer PAYEE: Braude, Nelson « H~rrington, PtC. -436.44 CLOS'ING BALANCE $3,962.27 Payments reoeived after the date of this statement will be reflectad on the 'following statement. SECOND AFFIDAVIT OF WALTER VIRDEN, III NO. 141-237105-09 THE EPISCOPAL CHURCH, et al. § IN THE DISTRICT COURT § v. § TARRANT COUNTY, TEXAS § FRANKLIN SALAZAR, et aI. § 141sT JUDICIAL DISTRICT SECOND AFFIDAVIT OF WALTER VIRDEN, III STATE OF TEXAS § § COUNTY OF TARRANT § On this day personally appeared before me Walter Virden, III, who, after being placed under oath, stated the following: (1) My naIne is Walter Virden, III. My address is 1803 Bois d' Arc Drive, Arlington, Texas 76013. (2) I am Secretary of The Corporation of The Episcopal Diocese ofFOli Worth, hereafter the "Corporation," and have been such since 1983. (3) I am custodian of all of the corporate records of the Corporation, along with Charles A. Hough, III, who is Canon of The Episcopal Diocese of Fort WOlih, where the records are actuall y kept. (4) The Corporation conveyed to Trinity Episcopal Church, FOli WOlih; St. Luke's Episcopal Church, Stephenville; and St. Martin-in-the-Fields Episcopal Church, Southlake title to their property after The Episcopal Diocese of Fort Worth voted to disassociate from The Episcopal Church based on their expressed desire to continue to be associated with The Episcopal Church. These transfers were granted by the Diocese not as a matter of right but to try to avoid litigation and reach a peaceful settlement. I swear under penalty of perjury that all of the foregoing statements are based upon my own personal knowledge and are true and correct. g ~ ~ WALTER VIRDEN, ill SUBSCRIBED AND SWORN TO BEFORE ME by the said Walter Virden, ill on this -'-day of January, 2011. ~~~.v~~::~ CAROL ANNE BACKUS r:~\ Notary Public. State of Texas 'i\.1~~d~j My Commission Expires ae~~ ~,MJ~~ March 26, 2014 Notary Public In and For the State of Texas AFFIDAVIT OF JEREMY BONNER, Ph.D. Cause No. 141-237105-09 THE EPISCOPAL CHURCH, ET AL § IN THE DISTRICT COURT § Plaintiffs § § VS. § TARRANT COUNTY, TEXAS § FRANKLIN SALAZAR, ET AL § § Defendants § 141 ST JUDICIAL DISTRICT AFFIDAVIT OF JEREMY BONNE& PH.D. BEFORE ME, the undersigned authority, personally appeared Jeremy Bonner, Ph.D., who being duly sworn by me according to law, on his oath deposed and stated the following: "My name is Jeremy Bonner, Ph.D. I have personal knowledge of the facts hereinafter set forth by virtue of the fact that I personally prepared the document attached hereto. "Attached hereto is a true and correct copy of my analysis of the articles presented by Dr. Robert Bruce Mullin with respect to the establishment and subsequent development of the Protestant Episcopal Church in the United States of America. "Further, the Affiant sayeth not." SUBSCRIBED and SWORN to before me by Jeremy Bonner, Ph.D., on this ~3 day of January, 2011, to certify which witness my hand and official seal. Notary Public 'n and for the State of Penn ylvania COMf'40NWEAlTH OF PENNSYLVANIA Notarial Seal Joshua Wander, Notary Public City of Pittsburgh, Allegheny County My Commission -Expires Feb. 13, 2014 Member, Pennsylvania Association of Notaries AFFIDAVIT OF JEREMY BONNER, PH.D. - Page 1 of 1 The Endurance of Diocesan Autonomy and the Absence of National Supremacy of the General Convention of The Episcopal Church, 1789-2009 Jeremy Bonner, PhD CONTENTS Introduction 3 Establishing the Church, 1700-1789 8 a) The Colonial Context 8 b) The Demise of Establishment, 1776-1784 13 c) A National Church: The Federal Plan 16 d) A National Church: The Connecticut Plan 23 The 1789 Constitution and Canons 27 a) The Constitution: The Absence of Federal Language 27 b) The Constitution: The Lack of Enumerated Powers 30 c) The Constitution: Purported Evidence of Supremacy 33 d) The Canons: Purported Evidence of Supremacy 41 Enduring Autonomy: The Nineteenth Century Church 42 a) The Diocesan Conventions and the General Convention 42 b) The Bishops and the Presiding Bishop 50 Enduring Autonomy: The Twentieth Century Church 55 a) The Diocesan Conventions and the General Convention 56 b) The Bishops and the Presiding Bishop 67 The Integrity of the Diocese: The lawyers, the Bishops and the General Convention 71 Conclusion 83 2 INTRODUCTION It is a simple question of association: Is the Protestant Episcopal Church in the United States of America [hereafter referred to simply as "TEC"] a church that accords supremacy over the Dioceses comprising it to a central assembly - the General Convention - or is TEC a confederation of Dioceses, whose lIaccession" to the General Convention can be both qualified and revoked? While this question has been a contested one in North American Anglicanism) a close examination of the historical evidence demonstrates that those who have expressed opinions on this question have never been of one mind upon this point and, more significantly, those authorities who did argue for the supremacy of the General Convention did so without relying on the language of the national Constitution and Canons to sustain their position. Wishful hopes, absent pertinent constitutional language, tend to remain wishful. From the enactment of property provisions in its original Constitution and Canons adopted upon the creation of the Diocese in 1982 and its subsequent "qualification" of its accession to the national Constitution and Canons in 1996/ the Episcopal Diocese of Fort Worth has exercised its independence and autonomy from its origins. Its assertion of a constitutional right to withdraw from the provincial structures ofthe national church in 20062 gave practical demonstration of the inability of TEC to prevent such action (and thus its lack of supremacy), and an objective review of the historical record of the past two centuries demonstrates that this lack of supremacy is a recurrent motif in the history of TEC as a whole. In June 2007, when TEe's Executive Council declared certain constitutional and canonical changes in Fort Worth to be "null and void/, diocesan leaders elected formally to sever the connection 1 Fort Worth Convention Journal, 1996, 27,37-38. This change was ratified in 1997, and Bishop Iker stated that any determination as to the nullification of national church legislation would be made by the Bishop and Diocesan Convention acting together. Fort Worth Convention Journal, 1997, no pagination (fourth, thirteenth and fourteenth pages). 2 Fort Worth Convention Journal, 2006,47. 3 between the Episcopal Diocese of Fort Worth and TEe. Addressing the Diocesan Convention in November 2007, Bishop Iker restated what, historically, always had been the rule among TEe's member Dioceses: I must object to the claim that the Presiding Bishop had any canonical authority in this Diocese or any legitimate power over the leadership of this Diocese. She has no authority to bring Fort Worth into line with the mandates of the so-called "national Church." There is no such thing as lithe national Church." We are a confederation of Dioceses, related to each other by our participation in the General Convention. From the earliest days of the beginnings of the Episcopal Church in this country, including the formation of dioceses and eventually the creation of the General Convention itself, there has been a strong mistrust of centralized authority that is deeply rooted in our history as Episcopalians. We do not have an Archbishop in this Church, who has authority over other Bishops and their Dioceses. Instead, we have a Presiding Bishop, with very limited canonical responsibilities, mainly administrative in nature. We must object to the tendency in recent years in this Church to create some sort of central bureaucracy at the top that holds power and authority over various Dioceses of the Church. We do not have a curia that dictates policy and dogma in this Church. We do not have a Presiding Bishop with papal authority over us, nor do we believe in the infallibility of any Bishop or any council, or, indeed, of the General Convention.3 Does Bishop Iker's position comport with the historical record? In his most recent affidavit, the leading authority for TEC, Dr. Robert Bruce Mullin of TEe's General Theological Seminary, asserts the primacy of the General Convention over all other bodies within the church. In paragraph 89 of that affidavit, however, Dr. Mullin makes the following observation: The General Convention's legislative authority has from the beginning been unrestricted. In practice, however, the Convention has historically been conservative in exercising its authority, and has acted only when it considered such action necessary for the well-being of the Church. Many decisions have been expressly delegated to the individual dioceses, thus giving to some the impression of a "de-facto" federalism. But this is not a true federal system. These diocesan functions were not inherent rights, but were powers granted by General Convention. Moreover, as will be shown, the General Convention has over time increased its direct mandates to dioceses and parishes. (Emphasis added.) 3 Fort Worth Convention Journal, 2007,4. 4 This concession (which did not appear in an earlier version of the affidavit that Dr. Mullin submitted in the Fort Worth litigation) is striking, especially when taken in conjunction with his earlier admission (in paragraphs 74-76) that the TEe Constitution lacks any language of supremacy in describing the relationship of the General Convention to the Dioceses. It is always tempting for a historian to read back into the past what he or she expects (or desires) to find, but when one asks the question "What is the Church?" one does not expect a theologian and a lawyer necessarily to agree. Across more than two centuries, several commentators including some cited by Dr. Mullin in support of his erroneous conclusions - embraced the ideal of a national church organization capable of securing obedience from the Dioceses that it claimed to embody. Today there are many in the leadership of TEC who sincerely believe that such an ideal governs the affairs of the Church and reduces the Dioceses to the status of subordinate units. However, the historical record demonstrates that TEC was not established along such lines, that the autonomy of each and every Diocese was and remains an enduring principle, and that the basic constitutional authority of the General Convention (as contrasted with its legislative activities) has remained largely unchanged since 1789. Absent explicit language of supremacy, the lIunion" of the Dioceses with the General Convention remains open to termination, both by the General Convention itself and by the Diocese. Those who founded TEC in the 1780s expressed hope that such a state of affairs would never arise, but they never rendered it impossible. Fort Worth's exercise of its right to withdraw cannot be nullified on the basis that Dr. Mullin (and TEe) now claim. That said, any notion that the there has always been a single, uniform understanding of the nature ofthe hierarchy of TEC by its members is a myth. Much has been made of a 1959 dissertation by 5 James Dator - entitled "The Government of the Protestant Episcopal Church" - which expounded the view that TEC represented, by its very nature"a unitary form of government.4 ln his introduction, Dator documented a great diversity of Episcopalian perspectives on the subject, at one pOint even observing that "s ome of the points concerning the Church's constitutional structure are genuinely open to varying interpretation because the facts about them are inconciusive.Jls But whether or not TEC has a unitary polity is not pertinent to whether or not the General Convention is supreme, a status denoted by explicit legal language of hierarchy.6 Absent such language, the national church's "authority" over "subordinate" Dioceses was, in reality, no different in 1919 or 1979 than had been the case in 1789, since the essential constitutional condition of the national church relative to the local Diocese was largely unchanged. In paragraphs 5-7, Dr. Mullin posits a conflict between "separatists" seeking to join a "rival church" and lithe Church itself and the persons in those dioceses who wish to remain in the Church." He declares that the perspective of the separatists is compounded of a belief that TEC is "a strictly voluntary association of independent dioceses" and that accession by dioceses to the Constitution and Canons of the national church is a "temporary and mutual agreement between independent sovereigns." These claims, he insists, "have no basis." However, Dr. Mullin errs in at least one particular: the argument in favor of diocesan sovereignty does not perceive the TEC Constitution as comparable with the U. S. Constitution of 1789 but with the Articles of Confederation, because the TEC Constitution -like the Articles - lacks any sort of Supremacy Clause. 4 Mullin makes this point in paragraph 67 f.34 5 James A. Dator, The Government of the Protestant Episcopal Church (PhD dissertation, The American University, 1959), 1-12 (quotation on 9). 6 For a critique of the Dator dissertation, see Mark McCa1l 1 "ls the Episcopal Church Hierarchical?" Anglican Communion Institute, September 2008, 71-76. 6 Dr. Mullin abandons historical caution when he declares in paragraph 8 that liThe Episcopal Church has been, and has understood itself to be, throughout its existence without question a hierarchical church/' because he asserts more than he can demonstrate. There has never been uniformity on this paint. Further, it is only recently that an internal church dispute pitted a Diocese - as a corporate entity - against TEe. In earlier disputes that led to the formation of the Reformed Episcopal \ Church in the 1870s and the establishment of several Anglican Continuing Churches in the 1970s, only individuals and parishes were involved, while the short-term separation of the southern Dioceses from the national church during the Civil War took place in the aftermath of a change in civil jurisdiction and was understood by the affected Dioceses as resulting not from a process conducted under their respective diocesan cQnstltutions and canons but as a politicaljait accompli. When, in 1862, the General Convention was actually offered an opportunity to establish a canonical process eerily similar to that recently employed in Fort Worth by the national church to "re-constitute" the Diocese} it declined to take any action in the matter.7 Moreover, the absence of historical precedents for diocesan withdrawal is not, in itself, proof that the constitutional amendment process undertaken in Fort Worth in 2007 and 2008 was ultra vires. .; Ultimately, the question is straightforward. Did the Dioceses enjoy an independent existence prior to the establishment of TEC, and was it they who together embodied and created TEC in 17897 If both these facts can be demonstrated - as this paper will contend - and if the subsequent historical record reveals a pattern of General Convention deference to diocesan autonomy and avoidance of constitutional and canonical language demonstrating supremacy, it must be concluded that the Dioceses ultimately remain the constitutive units of TEC and - as such - free to exercise their right of withdrawal in a corporate capacity. 7 See below, 82. 7 This paper is organized in five sections. The first constitutes an overview of the nature of Anglicanism in North America both before and after the Revolution, together with an analysis of the process by which a national organization was created in 1789. This is followed by a detailed examination of the formative documents of TEe - the first national Constitution and Canons - exploring both the extent of national jurisdiction delegated by the Dioceses to the General Convention and the contingent limits placed upon the latter. The development of TEC and of its relationship with the Dioceses, first in the nineteenth century and subsequently in the twentieth century, forms the basis ofthe third and fourth sections, respectively. Finally, I endeavor to demonstrate the statements of nineteenth century canonical authorities cited by Dr. Mullin as purported evidence of the enduring supremacy of the General Convention either were misconstrued by Dr. Mullin or simply were expressions of what those authorities viewed as an unrealized ideal with respect to the nature of TEC and its relationship with the Dioceses that comprise it. ESTABLISHING THE CHURCH, 1700-1789 a) The Colonial Context Fundamental to Dr. Mullin's thesis is his assumption that the various meetings of American Anglicans that took place during the 1780s and culminated in the establishment ofTEC in 1789 represented a Ifrevival/l of the congregations of the Church of England in the former colonies under the guise of an independent national church.8 But how subject to the Church of England had the colonial churches actually been prior to the Revolution? While served by clergymen ordained in England and nominally under the authority of the Bishop of London, they were also subject to the direct oversight of colonial governors and elected local assemblies. Almost every colonial church was a law unto itselt 8 See paragraph 20 of the Mullin affidavit. 8 running the gamut from the established churches of the Chesapeake Bay colonies to the missionary clergy of the Society for the Propagation of the Gospel and their congregations} who were barely tolerated by New England's Congregationalist establishment. Far from promoting uniformity, colonial Anglicans revealed considerable diversity in matters of liturgy, doctrine and governance. In colonial South Carolina: For a time laymen chose the ministers, laymen appointed them, laymen disciplined them, and laymen removed them from office. Laymen had assumed the powers which were supposed to belong to the Bishop of London - the powers of institution, induction, suspension and deprivation. 9 Local control was spelled out equally explicitly in the legislation which established the Church of England in Maryland in 1700: By this law it was enacted that lithe book of common prayer and administration of the sacraments, with the rites and ceremonies of the Church, according to the use of the Church of England . . . be solemnly read, and by all and every minister, or reade~ in every Church, or every other place of public worship, within this province" .. , [it also] regulated marriages, made the vestries bodies corporate to receive and hold property for the Church, and gave them the power to fill vacancies among themselves; declared that every minister who was inducted should be head of the vestry; provided for keeping parish registers; directed the vestries, where there was no minister, to apply the IIforty per poll" to keeping the Churches and churchyards in repair and decent order; forbade any minister to hold more than two parishes, and allowed of such plurality, only with the consent of the vestries of both parishes and of the governor "or other person thereto authorized/' probably meaning the commissary; and permitted, under proper restrictions, the employment of lay readers. lO Deprived of direct episcopal oversight, the colonial church (or rather churches) found itself increasingly hewing to the prevailing political winds. As will be documented below, the first instinct of the churches 9 John F. Woolverton, Coloniol Anglicanism in North America (Detroit, MI: Wayne State University Press, 1984), 165. 10 Francis Hawks, Contributions to the Ecclesiastical History of the United States, Vol. II: A Narrative of Events Connected with the Rise and Progress of the Protestant Episcopal Church in Maryland (New York: John S. Taylor, 1839), 97-98. 9 in the Chesapeake Bay region at the close of the Revolutionary War was not to organize a national church but to persuade the legislatures in Virginia and Maryland to recognize their claim to local property formerly reserved to the Church of England. Even William White - the man who, more than any other, is credited with the birth of TEC - was in little doubt as to how things stood during the early eighteenth century: For although the Bishop of London was considered as the diocesan of the Episcopal churches in America, it is eVident, that his authority could not be effectually exerted, at such distance, for the removing of unwanted clergymeni besides which, there were civil institutions supposed to be in opposition to it, in the provinces where establishments had been proclaimed. In Maryland, in particular, all interference ofthe Bishop of London, except in the single matter of ordinations, was held by the proprietary government to be an encroachment on its authorities.11 (EmphaSis added.) In paragraphs 12-18, Dr. Mullin devotes considerable attention to the commitment of the Church of England to what he calls the "synodical principle," but the relevance of this principle to the governance structures of the colonial Church of England is highly debatable. Moreover, the Canterbury and York Convocations - the clergy assemblies upon which Dr. Mullin so heavily relies - had been prorogued indefinitely by King George I in 1717 and did not reassemble until the mid-nineteenth century. According to one historian: [The] chief interest of kings in the sessions of convocation had lain in the relief of their financial necessities by the vote of clerical subsidies, which satisfaction having been made} the assemblies had been PJorogued generally without further debate. With the surrender of the monetary privilege, the . reason for regular sessions disappeared, for the administrative problems of the church were capable of solution by the issue of royal injunctions to the archbishops. The convocations themselves lacked sufficiency of strength and prestige to maintain their sessions upon grounds of intrinsic importance.12 11 William White, Memoirs a/the Protestant Episcopal Church a/the United States of America (New York: E. P. Dutton and Company, 1880; orig. pub. 1820), 15. 12 Norman Sykes, Church and State in England in the XVlllth Century (Hamden, CT: Archon Books, 1962), 310. 10 While church legislation was still enacted by the English Parliament, colonial Americans were obviously barred from participation in that body. Thus, at the precise moment when a number of American colonies were legislating forms of Anglican establishment, the very clergy assemblies which Dr. Mullin cites in paragraph 13 as being of the essence of the "governmental authority of the Church of England" were denied the opportunity even to meet. While trans-provincial "convocations" of American clergy did take place in the mid-eighteenth century, they were not sanctioned by an ultimate authority, be it the Archbishops of Canterbury and York, the Bishop of London, or even the leaders of the Society for the Propagation of the Gospel. At the 1766 Elizabeth Town convention of clergymen from the northern colonies, which sought to promote a "spiritual" episcopate for America, the participants admitted that their recommendations were purely advisory and could bind neither churches nor clergy.13 In the southern colonies, in particular, the colonial assemblies assumed the authority that Dr. Mullin in paragraph 16 claims to have been vested solely in the English Canons. It is even more remarkable when he later asserts (in paragraph 42) that "during the colonial period there had been no tradition of ecclesiastical legislation at the level of the individual colonies." In Virginia, the colonial assembly had, as early as 1632, enacted laws on ministerial responsibilities, behavior and compensation that owed nothing to the wishes either of the Bishop of London or any clergy convocation.14 One of TEe's earliest historians, Francis Hawks, describes the fate of the English clergyman posted to Virginia in the following terms: 13 Frederick V. Mills, Bishops by Ballot: An Eighteenth Century Ecclesiastical Revolution (New York: Oxford University Press, 1978),42-44. 14 Woolverton, Colonial Anglicanism in North America, 74-80. 11 On his arrival in the colony, he applied to the governor (who was in effect the chief ruler of the Church), or to the parishioners of some vacant living, and sometimes to both; and if his ministrations were agreeable to the congregation, he was "received" (such was the term in use) as their minister. It must not, however, be supposed that by being thus received, the clergyman acquired a permanent settlement. By the act of 1642, the induction of a clergyman "into any parish that shall make presentation of him," was directed to be performed by the governor; it was entirely at the option of the parish to make or withhold such presentation. Without induction, the clergyman was held to possess no freehold in his living, but was at any time liable to removal, at the pleasure of the vestry, without trial or even crime alleged against him. Under these circumstances, there were but few of the clergy who could consider their situations as permanent, for there were but-few who could prevail upon their vestries to present them for induction. The general custom, therefore, was to hire the minister from year to year.iS (Emphasis in original.) If the authority of the Church of England over the parishes in its colonies had become increasingly tenuous by the early eighteenth century - as it had - and if the various colonial groupings of Anglican congregations were subject to different bodies of law - as they increasingly were -then Dr. Mullin's assertion in paragraph 18 that lithe concept of diocesan autonomy that is being advocated in some quarters had no standing in the world of Anglican Christianity in the Seventeenth and Eighteenth Centuries," misses the point. There were no dioceses, as such, in North America before the Revolution, because there were no bishops with jurisdiction consecrated to oversee them, but there were - at least in the states with an Anglican establishment - bodies of churches whose primary locus of authority was the colonial assembly. If we accept that the eighteenth century colonies were independent states in embryo, it is not unreasonable view the established Anglican churches of Virginia and Maryland as comparable 'proto-diocesan' entities. 15 Francis L. Hawks, Contributions to the Ecclesiastical History of the United States, Vol. I: A Narrative of Events Connected with the Rise and Progress of the Protestant Episcopal Church in Virginia (New York: Harper and Brothers, 1836), 88. 12 b) The Demise of Establishment. 1776-1784 As Dr. Mullin notes in paragraph 19, the American Revolution dealt a fatal blow to any lingering connection between American Anglicans and the Church of England, but it dealt an equally fatal blow to the southern establishments. In Virginia and Maryland, Episcopal churches that had previously enjoyed privileged status sank to the level of a Christian sect. The subsequent lack of discussion by Dr. Mullin of the demise of establishment - and of the Chesapeake Bay region in general- is all the more interesting when one appreciates that pre-Revolutionary Anglicanism was far stronger here than in New England or the Mid-Atlantic states. What is clear, though, is that in these two States local churchmen were initially more concerned with confirming their legal status at the state level than with forming a national church. In Maryland, the local Anglican churches - disestablished in 1776 - felt the lack of corporate identity, despite securing a claim to property formerly reserved to the Church of England under the Maryland Vestry Act of 1779. In November 1780 (four years prior to the first meetings discussing the possibility of establishing some form of national organization), Dr. William Smith brought together clergy and lay representatives in an official body, which adopted the name of "Protestant Episcopal Church." Three years later, that same body petitioned the governor for the right to incorporate on a statewide basis, forming, in the words of Dr. Smith, a "preparatory Convention or Conference, to consider and frame a DECLARATION of their own Rights as one ofthe Churches of a separate and independent State [and] to agree upon some articles of Government and Unity among themselves."16 This aforementioned "Declaration of certain fundamental Rights and Liberties of the Protestant Episcopal Church of Maryland" (emphasis added), adopted on August 18, 1783, ranks as one of the 16 William Smith to William White, August 4, 1783, in William S. Perry, Journals of the General Convention of the Protestant Episcopal Church in the United States, 1785-1835: Vol. 3; Historical Notes and Documents (Claremont, NH: 1874), 22-23, fn. 2. 13 more significant texts of the founding era, not least because it maintained the /(Right of the said Protestant Episcopal Church, in common with other Christian Churches under the American Revolution, to compleat and preserve herself as an entire Church, agreeably to her ancient Usages and Profession," (emphasis in original), even as it asserted continuity with the Church of England in respect of orders of ministry.17 Writing over a half century later, Francis Hawks called it lIespecially deserving of notice from the conclusive proof it furnishes that the Church of Maryland, like that of Virginia, claimed to have a distinct, independent existence, without reference to any connexion (sic) with the Church in any other colony."1S (Emphasis added.) A similar concern inspired the Episcopal Church in Virginia, which was disestablished in 1779. The Revolutionary War had rendered twenty-three of her ninety-five parishes extinct and left another thirty-four without c1ergy/9 and it was only in 1784 that its leaders finally presented a petition to the Assembly seeking /(to incorporate the Protestant Episcopal Church in Virginia, to enable them to regulate all the spiritual concerns of that church, alter its forms of worship and constitute such canons, by-laws and rules for government and good order thereof, as are suited to their religious principles."20 These legislative maneuverings kept the Virginians isolated from the first discussions concerning the formaUon of a national organization. Indeed the account ofthe meeting of October 1784 (discussed below), which brought together representatives of Anglican Churches in New York, New Jersey, Pennsylvania and Delaware noted that lithe Revd. Mr. Griffith from the State of Virginia was present by permiSSion. The Clergy of that State being restricted by Laws yet in force there, were not at liberty to 17 Perry, Journals of the General Convention of the Protestant Episcopal Church: Vol. 3, 22-25. 18 Hawks, Protestant Episcopal Church in Maryland, 294. 19 Hawks, Protestant Episcopal Church in Vjrginia, 154. 20 Hawks, Protestant Episcopal Church in Virginia, 156-157. 14 send Delegates, or consent to any Alterations in the Order, Government, Doctrine, or Worship of the Church.,,21 Though neither Virginia nor Maryland took the lead in the discussions that led to the General Convention of 1789, is Dr. Mullin nevertheless correct in paragraph 43, in identifying William White's The Case of the Episcopal Churches in the United States Considered, as the point of departure for a new ecclesiastical organization /fin the model of the English Church"? Close scrutiny of White's 1782 pamphlet (of which the introduction to the 1954 edition published by the Church Historical Society noted that "the suggestions which it presented are the realities oftoday"22) suggests that the author repudiated any suggestion of continuity between the colonial Church of England and the Episcopal churches in the States: They have been heretofore subject to the ecclesiastical authority of the Bishop of London. This authority was derived under a commission from the crown; which, though destitute of legal operation, found a general acqUiescence on the part of the churches; being exercised no farther than to the necessary purposes of ordaining and licensing ministers. Hereby a connection was formed between the spiritual authority in England and the episcopal (sic) churches in America, the latter constituting a part of the Bishop of London's diocese. But this connection was dissolved by the revolution ... All former jurisdiction over the churches being thus withdrawn, and the chain which held them together broken, it would seem, that their future continuance can be provided for only by voluntary associations for union and good government. It is therefore of the utmost consequence, to discover and ascertain principles, on which such associations should be framed?3 (Emphasis added.) White here enunciated key principles of vital significance: that the authority of the Church of England over the colonial churches had by the eighteenth century become /fdestitute of legal operation"; that the Revolution "dissolved" the residual spiritual connection; and that any subsequent association of 21 Perry, Journals of the General Convention of the Protestant Episcopal Church: Vol. 3,3. 22 William White, The Case of The Episcopal Churches Considered, edited by Richard G. Salomon (Church Historical Society, 1954), 7. 23 White, The Case of The Episcopal Churches Considered, 20, 22. 15 JJ Episcopal churches could be conducted only on the basis of IIvo luntary association. Moreover, the model of authority assumed in The Case of The Episcopal Churches Considered was one in which power was delegated from below, not granted from above, a distinct retreat from the principles which governed the Church of England. Quoting Jonathan Shipley, Bishop of St. Asaph from 1769 to 1788, White noted that lithe great art of governing consists in not governing too much.,,24 In modern parlance, this should be understood as the principle of subSidiarity, or the notion that power should always be vested in the smallest unit of government capable of administering it. If White's views on the manner of obtaining bishops underwent a metamorphosis between 1782 and 1789, his appreciation for subsidiarity did not. c) A National Church? The Federal Plan Dr. Mullin devotes paragraphs 43-58 of his affidavit to the informal and formal meetings on the subject of church unity that took place between 1784 and 1789, other than those in the New England States. An object of this analysis appears to be to confer retrospective authority upon meetings, many of which were as lacking in authority as the pre-Revolutionary colonial convocations.25 An early illustration appears in paragraph 20, when the formal object of Itrevival" addressed in the New Brunswick meeting of May 11,1784, was not - as Dr. Mullin asserts -the Church which had existed before the Revolution, but a IIsociety that had existed under charters of incorporation from the governors of the said three states [New York, New Jersey and Pennsylvania], for the support of Widows and Children of deceased 24 White, The Case of The Episcopal Churches Considered, 27. 25 See above, 11. 16 Clergymen.1I26 Notwithstanding that this meeting also discussed the principles by which church union might be effected, it was, as Dr. Mullin ultimately concedes in paragraph 44, entirely informal. Two weeks later, a gathering of clergy and laity from Pennsylvania met in Philadelphia. At that meeting, a "standing committee ofthe Episcopal Church in this State/' was apPointed not merely to "correspond and confer with representatives from the Episcopal church in the other states," but also "to assist in framing an ecclesiastical government/1 and it was agreed "that a constitution of ecclesiastical government, when framed, be reported to the several congregations, through their respective ministers, church-wardens and vestrymen, to be binding on all the congregations consenting to it, as soon as a majority of the congregations shall have consented." This meeting also recommended that the Standing Committee be bound by six Fundamental Principles, including the Church's independence of all foreign authority, its "full and exclusive" power to regulate its internal affairs and a requirement that a IIrepresentative body of clergy and laity" be the only body authorized to formulate Canons. It was in the matter of the sixth article, however, that William White's earlier commitment to subsidiarity was reiterated: That no powers be delegated to a general ecclesiastical government, except such as cannot conveniently be exercised by the clergy and laity, in their respective congregations.27 Dr. Mullin contends in paragraphs 45-47 that the initiative for the establishment of diocesan structures came from the general meeting of the "newly-forming Episcopal Church" in October 1784 in New York and was motivated solely by lithe need for delegates to establish the General Convention.,,28 26 White, Memoirs of the Protestant Episcopal Church, 19. 27 Journal of the Meetings which led to the Convention of the Protestant Episcopal Church in the State of Pennsylvania (Philadelphia: Hall & Sellers, 1790), 1784,6. 28 He does concede the "exceptions" of Virginia and Maryland in a footnote to paragraph 46. 17 Setting aside the fact that the Church in Maryland and Virginia already enjoyed a legally constituted form of ecclesiastical government, and that, by his own language, Dr. Mullin concedes the non-existence ofthe General Convention in October 1784, it is clear that the Church in Pennsylvania intended more by 29 its preliminary work of organization - of which William White admitted himself to be the inspiration - than the selection of General Convention delegates. Furthermore, the meeting of October 1784 was explicit in stating that such organization was to be "in the States to which they respectively belong, 30 agreeably to such Rules as they shall think proper." When Dr. Mullin turns, in paragraph 48, to the State meetings of 1785, he appears oblivious to the stirrings of local sovereignty to which several accounts give testimony. In Pennsylvania, for example, the February invitation for representatives of congregations to meet in Philadelphia declared the intention to "organize the Episcopal Church in this State.,,31In May, the founding State Convention asserted its willingness to admit clergy and lay deputies from neighboring States who desired to unite with it and "to have the same privileges and to be subject to the same regulations, as the clergy and congregations in this State."32 Thus, even as members of the State churches were discussing the establishment of a national confederation, the Church in Pennsylvania - speaking through its State Convention - reserved the right to admit those outside its territorial boundaries to membership in its councils. In Virginia, the State Convention - also meeting in May 1785 - was equally explicit about the location of its center of authority, issuing instructions to its delegates to the General Convention that 29 See White, Memoirs o/the Protestant Episcopal Church, 92. 30 Perry, Journals of the General Convention 0/ the Protestant Episcopal Church: Vol. 3,4. 31 Pennsylvania Convention Journal, 1785, 9. 32 Pennsylvania Convention Journal, 1785, 13. 18 left the State Convention free to disapprove its proceedings, establishing a Standing Committee with broad powers, and adopting no less than forty-three "Rules of Order, Government and Discipline/' subordinating any future Bishop to the will of the Convention and prescribing regulations governing clergy appointment and behavior.33 In its instructions to the General Convention delegates, moreover, the State Convention cautioned against an overly legalistic approach at the national level: Uniformity in doctrine and worship will unquestionably contribute to the prosperity of the Protestant Episcopal Church. But we earnestly wish that this may be pursued with liberality and moderation. The obstacles which stand in the way of union among Christian societies are too often founded on matters of mere form.34 Dr. Mullin also attributes significance to the prepositional distinctions by which the State Churches identified themselves in 1785. "These state meetings," he insists in paragraph 49, "did not speak of state churches. Rather they referred to the Episcopal Church in a given state. I find almost no evidence of any language of the Episcopal churches or of the Episcopal Church of a given state. A unified national model was clearly presupposed." It might be argued that "Episcopal" at this point In time served less as a noun than as an adjective, a flag of convenience for congregations sharing a common heritage but desirous of avoiding the political stigma associated with Anglicanism, but even setting this argument aside, there are more exceptions than Dr. Mullin's sole concession of the Church of Maryland.35 A letter to William White, from a clergyman charged with apprising members of the Church in New England of the deliberations of the May 1784 meeting, reported that the Episcopal Church of 33 Virginia Convention Journal, 1785,5,8-11, reprinted in appendix to Hawks, Protestant Episcopal Church in Virginia. 34 Virginia Convention Journal, 1785, 6. 3S In the related paragraph of Dr. Mullin's first affidavit, he declared that no such language existed. 19 Connecticut was planning to send representatives to the October gathering.36 (Emphasis added.) Even more revealingly, Canon X of the Diocese of Virginia, adopted on May 21, 1787, referred to the "Protestant Episcopal Church of Virginia/, even as Canon XIII- adopted the same day - spoke of the "Convention of the Protestant Episcopal Church in the state.,,37 (Emphasis added.) The very fact that "in" and 1I0f" were employed interchangeably in the same body of canonical regulations would seem to call into question the very premise on which Dr, Mullin bases his argument. The cursory fashion in which Dr. Mullin summarizes the "first meeting" of the General Convention in 1785 (paragraphs SO-52) also denies the casual reader any appreciation of the fact that this body lacked any corporate authority beyond that delegated by the States in their appOintment of delegates. When Dr. Mullin writes of the work of revising the Book of Common Prayer as being the preserve of a national church, he fails to note either that modification of the appointed prayers for the King had already taken place during the Revolution or the observation of Bishop Perry, commenting on the Proposed Book (discussed below), as to the manner in which the purported authority of an as-yet, un-established General Convention was nevertheless set at naught: The comparison of the Articles [as originally prepared by the Committee of Convention] with those that appear in the "Proposed Book" and in 8p. White's memoirs, will of itself alone prove the great liberties taken by Drs. Smith and White by virtue of their appointment "to make verbal and grammatical corrections." It is hardly a question whether, in view of the restriction of the Convention, "that nothing in form or substance be altered," (vide Jour. 1785) they did not greatly exceed their powers.38 36 Unknown to William White, June 19,1784, in Perry, Journals a/the General Convention a/the Protestant Episcopal Church: Vol. 3, 12. 37 Virginia Convention Journal, 1787,23. 38 Perry, Journals o/the General Convention a/the Protestant Episcopal Church: Vol. 3, 124f. 20 Questions can also be raised concerning Dr. Mullin's assertion that the members of the General Convention believed that a request for bestowal of the episcopate lIcould not be made by any body lesser than the General Convention itself.1I While Dr. Mullin supports this argument by reference to the expressed desire of the English archbishops and bishops that they could not consider candidates who did not come with the endorsement of the General Convention, he fails to note is that testimonials were also required from the State Convention. A Bishop, ordained as he was for the whole Church, might require provincial endorsement, but he was also - necessarily - the choice of his Diocese.39 In any case, the General Convention actually recommended "to the different Conventions, at their next respective sessions, to appoint committees, with powers to correspond with the English bishops, for the carrying of these resolutions into effect,"40 hardly the action of a body that considered itself the only effective agent for securing the episcopate. Finally, in paragraphs 53-54, Dr. Mullin affirms the "proposed Constitution" of 1785 as evidence of the new authority of the General Convention, invoking the authority of "the leading Nineteenth- Century expert on Episcopal Church law." While Murray Hoffman's overall approach will be critiqued in the final section of this paper,41 it should be sufficient to note that he was speaking of the Constitution ratified in 1789 and not of the "proposed" Constitution of 1785, which was precisely that. The State Conventions had yet to express an opinion on the language of this instrument, and when they did so it was to prove, in some instances, far from favorable, while the General Convention still, did not exist as an authoritative body. 39 In his first affidavit, Dr. Mullin recorded that testimonials from the State of the Bishop-Elect were required, but omitted that fact in the current affidavit. 40 Perry, Journals of the General Convention of the Protestant Episcopal Church: Vol. 1, 1785, 25. 41 See below, 74-75. 21 Dr. Mullin's subsequent discussion, in paragraphs 55-58, of the manner in which the proposed Constitution of 1785 was amended between 1786 and 1789 also does less than justice to the complexity of the situation. His claim that the authority of the General Convention over the State Conventions was "reasserted" in 1786 ignores the fact that the General Convention had no such authority at that time. If, as Mullin quotes him, William White came to believe in the IInecessity of a duly constituted body," it follows that the General Convention of 1786 was not such a body. To further write of granting permission to the State Conventions to determine whether or not to use the Proposed Book only until further provision was made, ignores the fact that most of the Conventions had already rejected it, as evidenced in a memorial from the Church in the State of New Jersey to the General Convention of 1786, which questioned lithe right of any order or orders of men, in an episcopal church without a bishop, to make any alterations not warranted by immediate necessity, especially such as not only go to the mode of its worship, but also to its doctrines."42 The General Convention's decision to reject the candidacy of William Smith, by contrast, speaks not to the subordination of Dioceses but to the responsibility of the entire Church for choosing its bishops (a point previously made by Dr. Mullin in paragraph 14, quoting John Fulton). The General Convention merely ratified (or refused to ratify) a choice already made by the State Convention. Dr. Mullin's attempt to portray William White as opposing the idea of deference to the State Churches also falls short, for in The Case of the Episcopal Churches ConSidered, White's commitment to subsidiarity led him to focus on the autonomy of the congregation. If his published writings were no blueprint for diocesan autonomy - in itself a debatable proposition - they were equally no blueprint for supreme 42 Journals of the Conventions o/the Protestant Episcopal Church o/the State of New Jersey, 1785-1816 (New York: John Polhemus, 1890), 1786, 14. 22 national authority. Finally, and perhaps most importantly, Dr. Mullin promotes the notion of the General Convention of 1789 corporately asserting an authority to ratify its own Constitution. While the sequence of events will be discussed in more detail below, it may be noted here that the Constitution was approved by delegates acting in their individual capacities and ratified by the delegates on behalf of the States the following day. The fact that the Constitution and Canons were not sent to the various State Conventions for ratification does not alter the fact that ratification was by the States. d) A National Church? The Connecticut Plan Of the 1785 General Convention, Bishop William Perry (who edited an edition of the journals of the early General Conventions published in 1874) noted in his History of the American Episcopal Church that "New England, with its organized dioceses and bishop, though invited} and even urged to attend, stayed at home.,,43 (Emphasis added.) In paragraphs 75-76 of his affidavit, Dr. Mullin's argues that the absence of "intentional language of supremacy" from the Constitution,in contrast with that of certain other churches, was that the "newly forming" Episcopal Church was not "a union of earlier churches with long traditions of legislatIve independence [and] ... competing tra,ditions of legislative autonomy." The question of legislative independence has already been addressed, and when Dr. Mullin, in paragraphs 59-64, turns his attention to the "Episcopal Church of Connecticut," the notion of "competing traditions" becomes all too real. His assertion that the New England churches held the "same view as their southern counterparts of the preeminence of a national church over its dioceses" is simply wrong-both regions did accord greater prominence to an intermediate institution; the southerners to the State Convention, and the northerners to the office of Bishop. In the words of one recent historian: 43 William S. Perry, The History a/the American Episcopal Church, 1587-1883 (Boston: James R. Osgood and Company, 1885), Vol. 2, 35. 23 In the majority view! it was the clergy and people, while in the early Connecticut view (which had sympathizers elsewhereL it was the bishop} and, to some extent} Convocation when acting as electors} who replaced the English sovereign as head of the church. Both sides claimed the support of the New Testament and of patristic writers, and each in its way was struggling to find a paradigm that would stand in place of the English system. 44 Samuel Seabury was actually the second choice of the Connecticut clergy for elevation to the office of bishop} following Jeremiah Leaming's refusal to accept the nomination. Though born and educated in Connecticut} Seabury had exercised his pre-Revolutionary ministry in New Jersey and New York, making his endorsements by non-Connecticut clergy thoroughly understandable. In his letter to the Archbishop of Canterbury dated April 21, 1783, however, Abraham Jarvis - on behalf of the clergy of Connecticut - specifically requested the consecration of a "Bishop for Connecticut.1I45 Furthermore! a subsequent letter to the Archbishop (unsigned} but bearing evidence of authorship by Seabury's clerical supporters) observed: "If a bishop is once established in Connecticut} we are confident that bishops will soon be admitted into the other colonies! so that the fate of all the churches in the united colonies is virtually involved in the success of this application.46 Seabury!s rejection by the English bishops and subsequent consecration by the Scottish Non- jurors was actually more controversial than Dr. Mullin implies here} not least because it introduced descent from the {{Scottish linell into the American episcopate. The Episcopal Church of Scotland was not only disestablished but subject to penal laws and existed alongside Jlqualified" congregations overseen by English clergy and using the English Book of Common Prayer: 44 Paul V. Marshall, One, Catholic, and Apostolic: Samuel Seabury and the Early Episcopal Church {New York: Church Publishing, 2004L 71. 4S E. Edwards Beardsley, Life and Correspondence of Bishop Samuel Seabury, D.O. (Boston: Houghton, Mifflin and Company, 1881)} 81. 46 Beardsley, Life and Correspondence of Bishop Samuel Seabury, 91. 24 The Episcopal clergy of Scotland, except for those who ministered in the "qualified" chapels, were not in full communion with the Church of England ... [if] the English Non-jurors and the Scottish Episcopalians were one, and if the former justified their existence only be denouncing the church as by law established, the Church of England could have no regular communion with the latter.47 Thus the Scottish line of the Episcopal Church was formally out of communion with the Church of England until 1789 (when the Non-jurors agreed to take oaths of allegiance to the Crown) and not until 1840 were Scottish and American clergy allowed to officiate in English parishes.48 If continuity with the Church of England were an essential ingredient of the new American Church, then Seabury's consecration worked against that object. Dr. Mullin's representation of Seabury as, in some manner, a part of TEC even before he and his supporters had acceded to the Constitution hardly does justice to the facts. For two years, until the consecration of White and Provoost in 1787, Seabury was the only Bishop in the United States. Although assuming, under these circumstances, a general responsibility for the ordination of American clergy, there is no evidence that he sought to interfere with clergy oversight beyond his own jurisdiction, despite charges that he extracted oaths of personal loyalty from outside candidates. Regarding his purported use of the title "Bishop for America/' Seabury historian Paul Marshall recently concluded that this designation was used only in jest and never as an official signature. In fact, Seabury signed himself "Samuel Bishop Episcopal Church of Connecticut/' a formula similar to that used by his episcopal rival Samuel Provoost of New York after his consecration.49 To declare Seabury to be anything other than the diocesan bishop that he undoubtedly was flies in the face of the historical record. 47 Fred G. Schneider, IIS cottish Episcopalians and English Politicians: The Limits of Toleration," Historical Magazine of the Protestant Episcopal Church 4S (September 1976): 285. 48 Schneider, "Scottish Episcopalians and English Politicians," 289. 49 Marshall, OneJ Catholic, and Apostolic, 96-97. 25 Moreover, the New England churches outside Connecticut, though welcoming Seabury's episcopal ministrations, were far from being of one mind. Thus, Samuel Parker of Massachusetts wrote William White in January 1789 as follows: True it is that the Churches in Massachusetts have at present more the resemblance of Independent congregations than of Episcopal Churches, having one centre of union and communion. There are but six Episcopal Clergymen in the State: two of these have received Orders since the Revolution; one from yourself, the other from Bishop Seabury; two of the other four are so lax in their principles of Episcopal government that I think them averse to uniting under a common head ... It appears to me that a union might take place, even if the constitutions of government and liturgy varied a little in the different States. An absolute uniformity of government and worship, perhaps, will never take place under a Republican form of civil government and where there is such variety of sentiments in religious matters. Still I conceive we may become so far united as to be one Church, agreeing in the general principles of discipline and worship.5o (Emphasis added.) Parker's observations reinforce the argument that the New England States whose members ratified the Constitution of 1789 were as much representatives of Dioceses as their southern counterparts. The accommodation of the peculiar ecclesiology of Connecticut by means of an agreement to constitute a House of Bishops and to dispense with the requirement for any State to send lay deputies reflected the desperate need to avoid the emergence of two separate Anglican entities in North America, but the Constitution and Canons ofTEC, as adopted in 1789, reflected the essentially con-federal nature of the compact. 50 Samuel Parker to William White, January 20, 1789, in Perry, Journals oj the General Convention of the Protestant Episcopal Church: Vol. 3, 378. 26 THE 1789 CONSTITUTION AND CANONS The centerpiece of Dr. Mullin's affidavit (paragraphs 66-98) is an attempt to demonstrate the essential- and, in his view, unique - character of TEe's first Constitution and Canons. Reiterating his position that those who object to his conception of hierarchy misread the provisions of the TEC Constitution as analogous to those ofthe U. S. Constitution, Dr. Mullin emphasizes the contrasts between the two, further insisting in paragraph 67 that James Dator's determination that the polity of the Church was unitary necessarily implies the supremacy of the General Convention.51 He further argues that the Constitution was never intended to limit the power of the General Convention, noting in paragraph 69 that "none of the actions taken at the first meeting of the General Convention was explicitly authorized by any language found in the Constitution/' but since no authorized Constitution existed in 1785 (or, for that matterl in 1786) it is unclear how there could be authorization for such proceedings. In what follows, an attempt will be made to address the specific issues raised by Dr. Mullin in relation to the Constitution and Canons and to explain why these arguments represent a fundamental misreading of the process of constitutional development. a) The Constitution: The Absence of Federal language liThe Church/s Constitution is strikingly bare of the language of federation/} declares Dr. Mullin, in paragraph 71 and IIlacks any language suggesting that the Church exists as the result of the union of independent, autonomous dioceses or that any governmental authority is reserved to the dioceses to the exclusion ofthe General Convention.1I Leaving aside the fact that there also is no IIlanguage of federation lJ in the U.S. Constitution, the TEC Constitution does contain four direct references to Dioceses 51 In footnote 34, Mullin argues that critics such as Mark McCall in his "ls the Episcopal Church Hierarchical?" are guilty of such a misreading, but since McCall emphasizes similarities between the TEe Constitution and the Articles of Confederation, not the U.S. Constitution, one must wonder if Mullin has read his paper that closely. 27 (or rather StatesL which speak, respectively, to the entitlement of Dioceses to representation in the General Convention (Art. II); episcopal selection according to rules laid down by the Diocese (Art. IV); reservation of clergy trials to the jurisdiction of the various Dioceses (Art. VI); and the requirement that amendments to the Constitution be adopted by a "majority of the States" in two successive General Conventions (Art. IX). Article V, frequently described as the assertion of the General Convention's authority over the IIsu bordinate" dioceses, merely embodies the conditions under which future Dioceses will be admitted into union (the concept of accession will be discussed below). Conspicuous by its absence, is any analogue to the U.S. Constitution's Supremacy Clause, making the General Convention the "supreme authority" in the Church. Instead, Article I merely states that "there shall be a General Convention of the Protestant Episcopal Church in the United States of America.,,52 Writing in 1891, Bishop William Perry offered the following verdict on the essential meaning of Article II of the TEC Constitution: [Not] only was recognition made of Diocesan or State independence, but the principle was laid down that the General Convention was to be composed of delegates of such order as the Church in each respective State should determine ... The representation, and of course the manner of choosing that representation, were matters not within the purview of the general body} but were solely as the State Convention should determine.53 There is nothing in the record of debate to suggest that Bishop Perry's inference of subsidiarity from Article II should not be applied to the rest of the Constitution. Indeed, when Dr. Mullin, in paragraph 73, refers to Article IV as the grant of a new power by the General Convention to the State Conventions to elect their bishops that "had not been so exercised in Anglicanism for over 700 years," he appears 52 Perry, Journals of the General Convention of the Protestant Episcopal Church: Vol. 1, 1789, 83-84. S3 William S. Perry, The General Ecclesiastical Constitution of the American Church: Its History and Rationale (New York: Thomas Whittaker, 1891),246-247. 28 oblivious to the fact that the State Conventions of Connecticut, Pennsylvania and New York had already exercised that right as much as four years before it was enshrined in the Constitution. In the footnotes to paragraphs 74-76 of his affidavit, Dr. Mullin criticizes expert testimony hostile to the notion ofTEC as a hierarchical body with a supreme legislative body, but while he concedes that colonial congregations lid eve loped a habit of self-governance that was generally uncharacteristic of Church of England parishes," he makes no reference to the role played by governors and colonial legislatures in defining how the established churches would conduct themselves, and he dismisses arguments concerning the absence of supremacist language with an unsupported conclusion that "consistent mandatory language" and a lack of reservation of powers to the State Conventions undermine any such argument. As we have already seen, Dr. Mullin's conclusions regarding the absence of pre-existing independent diocesan entities are erroneous, something only confirmed by the testimony of Bishop Perry: [The] action contemplated in the Fundamental Principles of 1784 ... proves conclusively that each Church in each independent State of the federal union, where organized agreeably to its own pleasure, deemed itself, and was regarded by each independent Church in the other States respectively, as an independent branch ofthe Catholic Church of Christ, lacking, indeed, a perfect organization while the Episcopate was wanting, but fully competent to seek that perfecting order and to organize for this purpose and for such other purposes as the present need seemed to require. 54 What, however, should be made of Dr. Mullin's second point that, unlike certain other church bodies, there were no potentially competing centers of authority with which Episcopalians had to deal? It is undeniable that the constitutions or acts of association of the States who ratified the national Constitution and Canons in 1789 remained in force at the moment of accession and subsequently 54 Perry, The General Ecclesiastical Constitution of the American Church, 99. 29 thereafter. Since no language of supremacy, subordination, exclusivity, preemption or finality is to be found within the TEC Constitution,55 the State Constitutions were never subordinated to the national Constitution, but endured as potentially competing centers of authority. b) The Constitution: The Lack at-Enumerated Powers In paragraph 78, Dr. Mullin appears to set great store by the circumstance that (as he puts it) the Church adopted a series of Canons before it adopted the Constitution, which, he argues, demonstrates that the Constitution was not intended to set limits on the authority of the General Convention. The right to so legislate, in his view, was part of the Iffundamental nature of the Church." If the two sessions of the General Convention of 1789 are any guide, Dr. Mullin's summary is - at best - a partial one. According to the Journat on August 1 the proposed Constitution was twice read aloud to the assembled deputies and debated by paragraphs. It was then resolved: th th th th That the 1st, 2nd, 4th, 5 , 6 , 7 , and 8 articles be adopted, and stand in this order -1, 2, 3,4, 5, 6, 7; that they be a rule of conduct for this Convention; and that the remaining articles be postponed for the future consideration of this Convention.56 (Emphasis added.) Six days later, on August 7, the General Convention adopted a set of ten Canons, with the proviso that a committee be authorized to report to the next Convention such additional Canons as might be deemed necessary. The Convention then took up the two articles (the third and the ninth), which had been "postponed" and after amendment agreed to them, following which the Constitution was engrossed for signing (since it had to be printed, it could not be signed the same day).57 The following day, lithe 55 See the discussion of the language of hierarchy in McCall, "is the Episcopal Church Hierarchical?" 4-10. 56 Perry, Journals of the General Convention of the Protestant Episcopal Church: Vol. 1, 1789, 72. 57 Perry, Journals o/the General Convention of the Protestant Episcopal Church: Vol. 1, 1789, 79-82. 30 engrossed Constitution of the Protestant Episcopal Church was then read and signed by the Convention.IISB In a letter to the Archbishops of Canterbury and York dated the same day (August 8), the signatories affirmed the efficacy of the new constitutional arrangements: We, the Bishops, Clergy, and Laity of the Protestant Episcopal Church in the States of New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, and South Carolina ... are now assembled, through the blessing of God, as a Church duly constituted and organized, with the happy prospect before us of a future full and undisturbed exercise of our holy religion, and its extension to the utmost bounds of this continent, under an ecclesiastical constitution, and a form of worship, which we believe to be truly apostolical.s9 (Emphasis added.) The adjourned Convention reconvened in Philadelphia on September 30, this time with representatives from the New England States in attendance. The provisional nature of the Constitution became clear on October 1, when the following resolution was adopted: That for the better promotion of an union of this Church with the eastern Churches, the General Constitution established at the last session of this Convention is yet open to amendment and alterations, by virtue of the powers delegated to this Convention.60 (Emphasis added.) Approval of the request of the "Eastern Churches" that Article III be modified to allow the Bishops- when sitting as a House - both to originate legislation and lito negative such acts proposed by the other House as they may disapprove" permitted the endorsement of the Constitution by representatives of the New England States and - more importantly - altered the constitutional structure by allowing the establishment of a House of Bishops (the Constitution required that there be at least three Bishops 58 Perry, Journals of the General Convention of the Protestant Episcopal Church: Vol. 1, 1789,82. 59 "An Address to the Most Reverend the Archbishops of Canterbury and York, August 8, 1789, in Perry, Journals of the General Convention of the Protestant Episcopal Church: Vol. 1, 1789, 134. 60 Perry, Journals of the General Convention of the Protestant Episcopal Church: Vol. 1, 1789,94-95. The use of this J language of "delegation ' inevitably raises the question of how - ifthe General Convention's powers are inherent ~ any power can be delegated to it. 31 before such a body was organized}.61 Consequently, on October 15, when the Committee on the Canons, in accordance with its August mandate, reported several additional canons, these were ratified and sent to the newly established House of Bishops for concurrence. The latter returned them the following day with an amendment that the House of Clerical and Lay Deputies approved, after which: The Canons now passed, together with those passed at the last session, being collected into one body, and ratified by both houses, were directed to be entered in the Book of Records and printed with the journal of this Convention.62 (Emphasis added) "Some canons had been passed in the preceding session [August 1789];" wrote Bishop White, {{but they were reconsidered and passed with sundry others .. ."63 Even Judge John Andrews - an authority later cited by Dr. Mullin in paragraph 150 in support of his position - observed in 1883 that /lit was evidently from a mere oversight of the convention, that these canons were acted upon the day before the Constitution, which had already been agreed upon, was technically adopted by the signatures of the members; and that, at the next General Convention, to wit, in 1792, they were, as stated by Dr. Hoffman, re-enacted, in order to remove all doubt as to their validity."64 Thus, the General Convention itself concluded that the canons ratified in August did not enjoy inherent authority, but were as much in need of /lratification" under the new Constitution as those newly proposed. 61 Perry, Journals of the General Convention of the Protestant Episcopal Church: Vol. 1, 1789, 95-97. 62 Perry, Journals of the General Convention of the Protestant Episcopal Church: Vol. 1,1789,109-110. 63 White, Memoirs of the Protestant Episcopal Church, 29-30. 64 John W. Andrews, Suggestions on the Low of the Protestant Episcopal Church in the United States of America: Its Sources and Scope (New York: T. Whittaker, 1883), 58. 32 c) The Constitution: Purported Evidence of Supremacy In the absence of explicit language of supremacy, Dr. Mullin attempts in paragraphs 80-88 to document instances of the implied supremacy of the General Convention in the Constitution of 1789. But far from being implied, the case for supremacy is actually set back by a close review of his arguments. Concerning Article VIII (on the Book of Common Prayer) and Article VII (the future Declaration of Conformity), Dr. Mullin argues that we see here the assertion of the national church's absolute authority in matters liturgical as well as the (/mandatory national standard" required of all Episcopal clergy (including bishops). Neither article, of course, makes any reference to Dioceses. Article VIII- and the implication of liturgical supremacy that Dr. Mullin reads into it - has governed perhaps the most contested area of Church life since 1789, but it does not even contain language to the effect that the Book of Common Prayer be used exclusively. More to the point, few efforts to sustain the prinCiple behind Article VIII by means of more specific national Canons have ever succeeded in restricting liturgical innovations that go against the prevailing orthodoxy of the day, unless the Bishop and the Diocese affected have been prepared to enforce them. Similar issues govern the case of Article VII, since determination of whether there has been a violation of the oath has always been a matter for the local Ecclesiastical Authority, in the case of clergy (present-day Canon IV.7), or for the members ofthe House of Bishops acting as a college (not as the General Convention), in the case of bishops (present-day Canon IV.17). But the wording of the Declaration of Conformity raises another issue even more pertinent to the question of supremacy. Unlike similar instruments in other denominations regarded as hierarchical (and employing the language of supremacy, subordination, exclusivity, preemption and finality), the Declaration was not to the Episcopal Church as a body but to its ({doctrines and worshiplJ (these, in turn, being placed in a subordinate position to the authority of Scripture). The lack of specificity as to who actually determined 33 what these doctrines and worship were to be makes Dr. Mullin's assertion that it demonstrates the supremacy of the General Convention highly questionable. The style of the oath, it should be added, marked a considerable departure from the practice of the Church of England: [The] primary end of the sixteenth-century professions was to secure obedience to one's superior. The oaths of canonical obedience, the episcopal oath of fealty to the pope, and the various oaths of supremacy were all oaths of submission. These oaths delineated the hierarchy of the church and bound the swearer to remain loyal to his superior. By contrast, the modern declaration of conformity is not an oath of submission; the ordinand is not bound to be obedient to a specific superior or general body {such as the General Convention}. The ordinand is bound to be obedient to the "discipline" ofthe Episcopal Church, but this lacks the clarity and the specificity of the sixteenth-century oaths.65 It might be added that one of the principle objectives of the negotiations with the English archbishops to consecrate an American episcopate in the English line involved dispensation of the candidate from the traditional oaths. In the very words of the Act of Parliament: That it shall and may be lawful to and for the Archbishop of Canterbury, or the Archbishop of York for the time being, together with such other Bishops as they shall call to their assistance1 to consecrate persons being subjects or citizens of countries out of his Majesty's dominions, Bishops for the purposes aforesaid, without the King's license for their election, or the Royal mandate under the Great Seal for their confirmation and consecration1 and without requiring them to take the oaths of allegiance and supremacy, and the oath of due obedience to the Archbishop for the time being.66 No attempt was made, however, simply to create a revised oath substituting the General Convention as the supreme governor of the Church. Instead, a possible model for the national vow was Canon XIII of the "Church of Virginia" as adopted in 1785: No priest or minister shall hereafter be received into any parish within this commonwealth unless he first produce to the vestry sufficient testimonials of his haVing been regularly ordained a priest 65 Jonathan M. GraY1 liThe Sixteenth Century Background to the Current 'Oath' of Conformity of The Episcopal Church," The Journal of Episcopal Church Canon Law 1:1 (July 2010): 42-43. 66 Quoted in Perry, Journals oj the General Convention oj the Protestant Episcopal Church: Vol. 1, 1789, 87. 34 by some Protestant bishop - take the oath of allegiance to this commonwealth, and subscribe to the doctrine, discipline and worship of the Protestant Episcopal Church.67 (Emphasis added.) Omitted from the national oath was the feature of "allegiance" to a sovereign, which the Church of Virginia (and the Church of England) both deemed essential. Dr. M ullin's most noteworthy deduction of supremacy from absence, however, stems from the failure of the national church to provide itself with a judicial arm beyond the diocesan level. That this was considered a serious lacuna by many churchmen is evident both from the writings of canon lawyers and historians and from recurrent efforts in the General Convention to institute a national judicial system, culminating in the establishment of provincial courts of appeal at the beginning of the twentieth century. All efforts to create a court of ({ultimate jurisdiction," however, have come to nothing. Dr. Mullin reads this as evidence of the judicial function inhering in the General Convention itself, but it is hard to see how the failure to specify such authority in the governing instrument can be so understood. By way of historical comparison, under the Articles of Confederation, there was no central judiciary, yet this did not translate into giving the Confederation Congress judicial power; rather, the only judiciary was to be found in the sovereign states (one of the deficiencies which the U. S. Constitution sought to rectify). Francis Hawks, the foremost and earliest of the nineteenth century authorities cited by Dr. Mullin, was in no doubt on this point: In the Church we may be said to have no judicial system. By the constitution, the mode of trying offending clergymen is to be regulated in each State by its own rules. Some dioceses have made no rules at all. Uniformity in judicial proceedings is therefore wanting ... The mode as it presents itself operates thus. In the diocese of Massachusetts for instance, before a court composed according to the canons there in force, some clause of the constitution, or some canon of the General Convention, receives a certain interpretation, and under it punishment is inflicted. In South Carolina, a different meaning is attached by the court there to the very same words, and acquittal follows; and thus it may be in some six or more dioceses. In vain will anyone ask what is the law? No man can say. The convict of 67 Virginia Convention Journal, 1785, 9. 35 Massachusetts, doubting, as well he may, under such circumstances, the propriety of his intended punish ment, would fain appeal to some tribunal competent to adjust these conflicting interpretations. But where is such a tribunal? No wh.ere in the Church.68 (Emphasis added.) In the absence of the designation of a supreme judicatory, it must be presumed that that authority continues to reside at the diocesan level. Dr. Mullin also lays stress on the language of Article II rendering legislation adopted by the General Convention applicable to all States, regardless of whether or not deputies from a particular State were present, by virtue of a clause stating that such States would "nevertheless be bound by the acts of such Convention./I Assuming that the model for the TEC Constitution was the Articles of Confederation} however, it must be remembered that a Widely-held view of the time was that, since the role of the Confederation Congress was consultative, its legislation had to be enacted by the state legislatures in order to become binding law in the absence of a rule of applicability. As such, the clause cited in the TEC Constitution should be seen as a rule of "applicability," demonstrating a self-executing law, but not of "supremacy.,,69 Without an accompanying rule of priority, national church Canons existed alongside those of the Dioceses, which were also binding, and could be nullified. The language of Article II tracks that of the Supremacy Clause of the U. S. Constitution as regards the rule of applicability, but lacks the accompanying injunction that federal (i.e. national church) legislation shall be the "supreme Law ofthe Land./I Given the involvement of such legal luminaries as James Duane and John Jay in the drafting of the both the U.S. Constitution and the TEC Constitution, it is hardly credible to contend that such a discrepancy was unintentional. 68 Francis L. Hawks, The Constitution and Canons of the Protestant Episcopal Church in the United States {New York: Swords, Stanford and Co., 1841),56-57. 69 McCall, "ls the Episcopal Church Hierarchical?" 9-10. 36 We come, finally, to the issues of ratification and accession. In the case of the former Dr. Mullin contrasts the language of Article IX of the provisional Constitution of 1786: The Constitution of the Protestant Episcopal Church in the United States of America, when ratified by the Church in a majority of th.e States assembled in General Convention, with sufficient power for the purpose of such ratification shall be unalterable by the Convention of any particular State, which hath been represented at the time of such ratification.7o (Emphasis added.) with Article IX of the ratified Constitution of 1789: This Constitution shall be unalterable, unless in General Convention by the Church in a majority of the States which may have adopted the same; and all alterations shall be first proposed in one General Convention, and made known to the several State Conventions, before they shall be finally agreed to, or ratified, in the ensuing General Convention.71 (Emphasis added.) Once again, a process that Dr. Mullin terms unusual was far from unknown to those who had served in the Confederation Congress, where the Articles had been ratified not in state conventions but by the States in Congress. This was the perspective of Francis Hawks, a half century after the Constitution was ratified: By whom, in the General Convention, is a change to be made? The article answers - "by the Church, in a majority of the dioceses." What does it mean by "the Church?" Is it simply the members of the General Convention? Neither individually, nor as representatives, are they the Church. Beside, if this only were meant, it would have been said the constitution shall be unalterable, except by a majority of the General Convention; and nothing would have been directed as to making it known to the State Conventions ... It means a majority of the several dioceses of the Protestant Episcopal Church in these United States. And on any other interpretation, the latter clause ofthe article is a dead letter. Nay, worse than useless, positively mischievous, for it affects to respect, while it in truth mocks at diocesan independence ... The matter which has been proposed to these several Conventions must indeed come back to the General Convention, and there must finally be disposed of: but it is to the General Convention Sitting not so much in its ordinary legislative capacity, as in the character of a council 70 Perry, Journals o/the General Convention o/the Protestant Episcopal Church: Vol. 1, 1786,42. 71 Perry, Journals 0/ the General Convention 0/ the Protestant Episcopal Church: Vol. 1/ 1789, 100. The phrase "by the Church" in the second clause of Dr. Mullin's quotation of the 1789 version of Article IX is omitted from his citation. 37 composed of many independent dioceses, represented in the lower House, and met together to deliberate, not upon an occasional canon, but upon the great compact by which all alike, the strong and the weak dioceses, consented to make canons at all. Canons are the result of union after it is formed; the constitution is the bond that makes the union itself.72 (Emphasis added.) Fifty years later, Bishop William Perry, clearly inspired by the words of Hawks, offered his own understanding of the amendment process: The change of the Constitution is therefore made in General Convention, not by General Convention, but by the Church in a majority of dioceses. Consequently the Churches in the States, respectively, quasi States or dioceses, are alone competent to alter the Constitution. That this is the proper interpretation ofthe article is evident from the fact that Title III, Canon 1 §iii., makes it lithe duty of the Secretary of the House of Deputies, whenever any alteration of the Constitution is proposed, or any other subject submitted to the consideration of the several Diocesan Conventions, to give a particular notice thereof to the Ecclesiastical Authority in every Diocese;" and this canon, w'ith but slight and merely verbal changes, has been in force since 1808. Certainly matter thus formally communicated to the Church in every State or diocese "for the consideration of the several Diocesan Conventions," presupposes that the Church in a majority of dioceses is to consider and furnish that action with regard to the proposed alteration which, in the ensuing General Convention, is to be finally agreed or ratified. It is in recognition of this view of the true meaning of this article that ... the final vote in the ensuing General Convention must be taken by States and dioceses. It is also agreed that it is the right of the Church in each State or diocese to make known to the General Convention the action, if any, taken in Diocesan Convention, respecting any proposed alterations of the Constitution or Book of Common Prayer, whether affirmative or dissenting. We may further infer that if a majority of such Diocesan Conventions should make known their disagreement to the alteration or alterations proposed, it would not be competent for the ensuing General Convention to make these alterations.73 (Emphasis added.) For both Hawks and Perry, a vote by orders was a constitutionally distinctive exercise in which the basic equality of all Dioceses was affirmed and in which the delegates became the corporate embodiment of the diocese that had sent them. Even the most recent edition of White & Dykman - the Church's authorized commentary on the Constitution and Canons - concedes as much: 72 Hawks, The Constitution and Canons o/the Protestant Episcopal Church, 42-44. 73 Perry, The General Ecclesiastical Constitution o/the American Church, 287-289. 38 Another principle of polity embodied in the Constitution of the Episcopal Church is the equal representation of dioceses in the House of Deputies of General Convention. Before their adherence to the Constitution united the Churches in the several states into a national body, each was completely independent. Equality of representation was the only ground upon which they would have consented to unite. Irrespective of size, or numbers of clergy and people therein, each Church was granted the same representation in each order, and in the event of a vote by orders, one vote in each order. Thus the early phrase "suffrages by States," and still today a vote by orders is also a vote by dioceses?4 (Emphasis added.) In the matter of accession, by contrast, Dr. Mullin infers heavily from the very basic language of Article V of the 1789 Constitution: A Protestant Episcopal Church in any of the United States not now represented, may, at any time hereafter, be admitted, on acceding to the Constitution.75 It should be noted that there is no process of review or approval for revision of a Diocese's constitution or canons subsequent to the act of accession. Dioceses have historically been denied the opportunity to come into union with the General Convention because of the terms of their constitution or canons, but no Diocese (prior to 2007) has been sanctioned for prOVisions purportedly out of harmony with the national Constitution and Canons. Furthermore, even if one excludes from consideration the four Dioceses who have exercised their constitutional right to withdraw, there are no less than thirteen TEC Dioceses whose constitutions lack an Accession Clause (and another fourteen that acceded to the national Constitution only and not to the Canons). Such diversity is, in itself} far more suggestive of voluntary (and terminable) submission by the Dioceses than would be a precisely specified form of 74 Standing Commission on Constitution and Canons of the Episcopal Church, Annotated Constitution and Canons for the Government of the Protestant Episcopal Church in the United States of America otherwise known as the Episcopal Church (New York: Office of the General Convention, 1981-82), 3rd Edition, 12. 75 Perry, Journals of the General Convention of the Protestant Episcopal Church: Vol. 1, 1789, 100. 39 Accession Clause that every Diocese was mandated to include exactly as prescribed.76 And what of the actions of the organizing Convention in Fort Worth, where the original Constitution and Canons contained provisions inconsistent with the then recently enacted TEC property canons? The Episcopal Diocese of Fort Worth was admitted into union with TEC notWithstanding these property provisions, and TEC did not, over the ensuing 30 years, lodge any objections. The only power TEC had concerning the local property provisions in the Diocesan Constitution and Canons was to refuse the Diocese's application to be admitted into union with it, which power TEC did not exercise: Accession is a term that can theoretically be read either as an act of submission or one of conditional compliance. Interestingly, however, it is a term most commonly employed in international law as part of the language of treaty-making, a process necessarily between sovereign ind ividuals. Although employed In the Articles of Confederation, it had no analogue in the U. S. Constitution and the fact that the lawyers involved in the writing of the Church Constitution allowed it to be employed suggests that it was intended to signify a potentially terminable process.77 There is a further interesting irony in that in 1969 TEC "acceded and subscribed" to the proposed constitution of the new Anglican Consultative Council/8 a representative body ofthe Anglican Communion. Of that body, Dr. Mullin wrote earlier (in paragraph 39) that "each individual member church, or 'Province,' within this group is 76 See A. S. Haley ('Anglican Curmudgeon'), "ECUSA's 'Hierarchy': R.I.P.," January 4,2010, http://accurmudgeon.blogspot.com!2008!04!ecusas-hierarchy-rip.html. The fourteen Dioceses who have not withdrawn from The Episcopal Church and whose constitution lacks an Accession Clause are Albany, Arkansas, Central New York, Dallas, Long Island, Maryland, Mississippi, Missouri, Northern Indiana, Rio Grande, Southern Virginia, Virginia, West Missouri, and Washington. 77 McCall, "ls the Episcopal Church Hierarchical?" 20-23. McCall describes the decision to use the term "accession" as an example of what he calls a "category mistake," since Dioceses are clearly not "states" under international law. He notes further that the Articles used the phrase "acceding" in reference to joining its "league of friendship.1I 78 Robert Prichard, "The Making and re-making of Episcopal Canon law,1I Anglican Communion Institute, February 15, 2010, 15. 40 self-governing and autonomous ... [and] while the Episcopal Church is a hierarchical church, the Anglican Communion is not." Curious, therefore, that the language of affiliation in both the Anglican Communion and TEC should be identical. d) The Canons: Purported Evidence of Supremacy While the bulk of Dr. Mullin's argument deals with the TEC Constitution, he offers up an analysis (in paragraphs 90-98) of the powers supposedly assumed by the General Convention in those Canons which he wrongly asserts preceded the Constitution itself. The fact he prefaces this section with the formula of a historically conservative posture on the part of the General Convention that has led to the granting of many powers to the Dioceses must lead the reader to wonder how much store Dr. Mullin now sets by the authority of the national Canons, themselves. With a proper understanding of the nature of the authority conferred upon (or delegated to) the General Convention by the Dioceses, as well the rule of applicability referenced above in relation to the "nevertheless be bound" language, it should be obvious that Dr. Mullin's references to Canons not grounded in the Constitution itself and employing mandatory language are irrelevant. The national Canons might, at the same time, be authoritative for the Church as whole and yet dependent for enforcement on the readiness of the local Ecclesiastical Authority to ensure that its judiCial apparatus enforces them when they are violated. The whole apparatus of TEC has depended upon the willingness of Dioceses to conform, a fact which, as we shall see, would have implications for the expansion of the national church during the twentieth century. 41 THE ENDURANCE OF AUTONOMY: THE NINETEENTH CENTURY CHURCH Although the basic outlines of constitutional development within TEC between 1785 and 1789 might be considered adequate to demonstrate the enduring autonomy of the Dioceses of TEC, an examination of its governing instruments after 1789 also serves to reveal a pattern of enduring deference by the General Convention to the sovereignty of the Dioceses. In Section IV of his affidavit (paragraphs 99-144), Dr. Mullin embarks upon an extended review of General Convention enactments and resolutions pertaining to the office of Bishop, the Diocese, ordination, clerical practice and clergy and lay discipline. There is little value in rehearsing the arguments presented in the preceding section of this paper, which speak directly to the authority of the national Canons (and even more acutely to General Convention Resolutions, which serve as expressions of the "mind of the house")' but a consideration of the institutional history of the General Convention should give further pause to those convinced that TEC has always understood itself hierarchically. In what follows, attention will be given to the manner in which two purportedly supreme institutions - the General Convention and the office of the Presiding Bishop - have actually functioned under constitutional restraint} and have, on numerous occasions, publicly conceded as much. The omission of language of supremacy from TEe's founding documents and the failure subsequently to introduce it is not a historical oversight but a reflection of the very essence of TEC polity. a) The Diocesan Conventions and the General Convention That the Protestant Episcopal Church of the nineteenth century was a distinctly decentralized body is a fact universally acknowledged by historians, but did this reflect an inherent sense of constitutional limitation or merely a lack of resources to empower the Church? Aside from the New York-incorporated Domestic and Foreign Missionary Society, there was no permanent national 42 organization during the nineteenth century, and the General Convention met for no more than three weeks every three years. In 1795, we observe the General Convention issuing a plaintive plea for better attendance on the part of Dioceses so that debate on the Articles of Religion not be further postponed/9 while the General Convention of 1808 went so far as to appoint a committee charged with urging on the States already represented their duty to send delegates, on States where the Church was organized but not admitted into union the advisability of accession to the Constitution so that they might be admitted, and on States where the Church remained unorganized,fir:st to organize and then accede.80 Writing in 1951, former missionary and professor of religion and missions at the then Episcopal Theological School in Cambridge, Massachusetts, James Thayer Addison, perfectly articulated the essential passivity of the early General Conventions. "50 inflexibly was the Church then organized as a mere federation of dioceses," he declared, "that it was baffled by existing conditions. Consequently the policy of the General Convention was to leave each State or western Territory to qualify as a diocese if and when it could, through the use of its own resources. The Convention assumed no responsibility for helping it to grow. It Simply waited for it to appear with a signed certificate proving that it had grown.IIS1 Given our earlier discussion of the Accession Clause,82 it may be illuminating to reflect at somewhat greater length on the how the General Convention addressed the matter during the early nineteenth century. While it is undoubtedly the case that applications were occasionally denied, this spoke more of full participation in the affairs of the Church than of legal identity. Furthermore, the constantly shifting language of admission, which Dr. Mullin would no doubt subsume under his theory of 79 Perry, Journals of the General convention a/the Protestant Episcopal Church: Vol. 1,1795,195. 80 Perry, Journals of the General Convention a/the Protestant Episcopal Church: Vol. 1, 1808,345-346. 81 James T. Addison, The Episcopal Church in the United States of America, 1789-1931 (New York: Charles Scribner's Sons, 1951), 128. 82 See above, 39-41. 43 "de-facto federalism/' testifies more to a principle of voluntary - and terminable - subscription than to one of absolute submission. Thus, In 1820, the House of Delegates declared that it "recognizes the Protestant Episcopal Church in Maine as in union with General Convention.83 Twelve years later, when the component Dioceses of the "Eastern Diocese" - a diocesan "holding company" covering the whole of New England outside Connecticut - took it upon itself to release the State of Vermont as an independent Diocese, members of the General Convention contented themselves with declaring that they recognized "the separation of the Diocese of Vermont from the Eastern Diocese.,,84 By the late 18205, the General Convention was engaged in scrutinizing the language of diocesan constitutions and canons seeking admission, but its recommended changes were frequently advisory, as when the Diocese of Tennessee was admitted into union before putting into effect the "recommendationll that it repeal a 8S portion of its canons. After the Civil War, the language of accession underwent a change, n~t least because of the increasing number of Dioceses being formed as the result of division of existing ones. In 1865, the Committee on New Dioceses of the House of Deputies recommended the "ratification" of the division of the Diocese of Pennsylvania and the admission into union of the new Diocese of Pittsburgh, on the grounds that "both the Bishop and Convention of the Diocese of Pennsylvania have consented to such separation, and that all the requirements of the fifth article of the Constitution and Canons are fulfilled." 86 That a new Diocese like Pittsburgh automatically acquired an autonomous status seems 83 Perry, Journals of the General Convention of the Protestant Episcopal Church: Vol. 1,1820,516. 84 Perry, Journals of the Generol Convention of the Protestant Episcopal Church: Vol. 2, 1832, 368-369. 85 Perry, Journals of the General Convention of the Protestant Episcopal Church: Vol. 2, 1829, 235, 245, 300. 86 Journal of the General Convention, 1865,55. After 1835, the proceedings of the General Convention are generally available as individual volumes held by most of the TEC seminaries and by some other repositories. Since many were published privately, all future references will follow the format ofthis footnote. 44 evident from this declaration of the Committee on Amendments to the Constitution of the House of Bishops in 1886: The division of a Diocese from another, when ratified by General Convention, gives autonomy to the Dioceses so divided. The intention of the [fifth] Article of the Constitution, requiring that such divided Dioceses should be under the Constitution and Canons of the original undivided Diocese (until each would exercise its autonomous powers and form its own Constitution and Canons) was made for the obvious reason that no Diocese should exist without the protection and guidance of some 87 constitutional and canonicallaw. (Emphasis added.) While Dr. Mullin correctly notes that petitions for admission into union were, on occasion, rejected, the earliest examples frequently reflect either local objections, as was the case with Louisiana in 1835,88 or a self-evident inability of the Diocese to be self-sustaining, as was the case the same year 89 with Indiana, whose first attempt at a convention boasted one deacon and just two lay delegates. An attempt to prescribe demographic and financial guidelines for admission into union met with failure in 1838,90 and an 1850 attempt to amend Article V of the Constitution to include the phrase IIwithout first obtaining leave of the General Convention, who shall judge of the necessity and expediency of the formation or erection of such a Diocese" was rejected by the House of BishopS.91 87 Journal of the General Convention, 1886, 71. 88 Perry, Journals of the General Convention of the Protestant Episcopal Church: Vol. 2,1835,614. 89 Perry, Journals of the General Convention of the Protestant Episcopal Church: Vol. 2, 1835, 619. It should be noted that the General Convention of 1835, even as it was rejecting Indiana, admitted Illinois, whose primary convention consisted of three clergy and lay representatives of four parishes, 50 the bar was not being set very high at that point. See Percy V. Norwood, liThe Primary Convention of the Diocese of Illinois," Historical Magazine of the Protestant Episcopal Church 24 (September 1955): 311-323. 90 Journal of the General Convention, 1838, 17, 21-22 .. 91 Journal of the General Convention, 1850, 72, 84-85, 133-134. 45 In all of these debates, it is worth recalling that Article V of the Constitution of 1789, in the words of White & Dykman, conceived of a process by which "an Episcopal Church organized in any state might come into union with those already represented in the General Convention."92 The introduction of a process (not originally contemplated) for diocesan division in 1838 and of a clause (Section 7) requiring assurance of suitable provision for the support of the episcopate in 1871 (a clause not repealed until 1964) did not fundamentally alter the Church's beliefthat the organization of a new Diocese began in an unorganized area (or Diocese to be divided) and that the ratification of this act by the General Convention was very much the concluding act of the process. The second edition of White & Dykman even noted that the much ballyhooed Section 7 was more honored in the breach than in the observance, for in at least one case, a Diocese chose to obtain bonds from its parishes to support the Bishop's stipend rather than building up its endowment as was intended .93 A Diocese in union, by contrast, was a completely different animal, and successive General Conventions certainly behaved accordingly. Indeed, when invited to adjudicate on matters of territorial jurisdiction, the General Convention often seemed surprisingly tentative. An 1862 request from the Dioceses of Rhode Island and Massachusetts regarding an exchange of territory elicited the response that a transfer of a congregation would require the latter's consent, the consent of the two Bishops involved and possibly the consent of the two Diocesan Conventions, but that the reporting committee abstained "from considering the question, whether, in strictness, the General Convention has any authority or jurisdiction upon the subject.Jl94 Beginning in 1874, when the Dioceses of Texas and 92 Annotated Constitution and Canons (1981-82), 90. 93 Edwin A. White and Jackson A. Dykman, Annotated Constitution and Canons/or the Government a/the nd Protestant Episcopal Church in the United States of America (Greenwich, CT: Seabury Press, 1954), 2 Edition, 87. 94 Journal a/the General Convention, 1862, 122-123. 46 California became the first to cede portions of their existing jurisdiction to the General Convention so that they might be erected into missionary districts, the General Convention resolutions accepting such cessions were always accompanied by the formula: "Doubts are entertained by many of the power under the Constitution to permanently alter the territorial extent of the Diocese in this form ...,,95 Only in 1901 was the idea that the General Convention enjoyed an inherent right to erect missionary districts (as opposed to electing missionary bishops) given legislative form in today's Article VI of the Constitution, but by the twentieth century such power was more likely to be exercised outside the domestic United States (in Central and South America, the Philippines, Japan and China) than within it. Whether domestic or foreign, the clearly subordinate character of the missionary district emphasized its distinctiveness from the established Diocese. A creature ofthe General Convention, it could be reorganized at will and for many years it was allowed only one delegate in each order, meaning that - in votes by orders - a missionary district was counted as just one-quarter of a vote.96 That the General Convention was conscious of - and deferential to - the rights of Dioceses can be seen in a series of formal acknowledgments over the course ofthe nineteenth century. liThe respective Dioceses have exercised the privilege of naming themselves and designating their title," concluded the Committee on Canons of the House of Deputies in 1865, in response to a proposal to require Dioceses to take the name of the principal city within their jurisdiction. "A desire to keep in view the federative character of the Church, in harmony with the civil and political descriptions which characterize us and distinguish us from the consolidated governments of Europe, was doubtless influential in the decision, which, without exception, operated in giving the title now applied to our 95 See the resolution pertaining to the Diocese of Colorado in Journal of the General Convention, 1892,226. 96 See the discussion of Article VI (as adopted in 1901) in Annotated Constitution and Canons (1981-82), 97-104. 47 Dioceses respectively,"97 Understandable concern about the level of clergy compensation in certain dioceses also came up against the wall of diocesan independence. A special committee appointed to report on an 1868 memorial from the Diocese of New Jersey was blunt: [Any] action of this Convention in the matter could not be mandatory, but only advisory in its character. The Dioceses differ from each other not less in their circumstances and exigencies than in their latitude, and at last each one must be allowed to select from the multitude of suggestions the plan which after full consideration it shall decide is most congenial and appropriate to itself. (Emphasis added)98 The absence of a superior judicatory - or court of ultimate appeal- has already been cited as an example of the lack of supremacy in TEC, and it was a feature of which nineteenth century commentators were aware and frequently critical. The situation was made abundantly clear as early as 1804 when the Reverend Ammi Rogers, who had been prohibited from the ministry by the Diocese of Connecticut for misrepresenting his credentials in order to obtain ordination in New York, directly petitioned the General Convention for relief. The House of Bishops affirmed the action by the Diocese of Connecticut, however, and expressed the "opinion" that Connecticut had jurisdiction because the offender resided there.99 Nothing daunted, Rogers returned four years later but still received no sympathy from the House of Bishops: [We] are of the opinion that, agreeably to the Constitution of the Church, [this house has] no authority to act on an appeal in regard to the matter stated; and that there is no existing mode by which any Bishop or Bishops of this Church can take cognizance of the conduct of any other Bishop, unless at 97 Journal o/the General Convention, 1865,91. In response to a similar proposal a quarter of a century later, the Committee declared that it was not prepared to recommend any legislation so intimately connected with the rights of dioceses." See Journal 0/ the General Convention, 1889, 59, 65. 98 Journal 0/ the General Convention, 1868, 99. 99 Perry, Journals a/the General Convention o/the Protestant Episcopal Church: Vol. 1, 1804,313-314. 48 the desire of the Convention of the diocese to which such a Bishop should belong, and conformably to the rules of procedure established by them.lOO From the time of Francis Hawks onwards, many canon lawyers considered such judicial absenteeism at the national level extremely unsatisfactory, but nineteenth century debates on the issue failed to resolve it. A Joint Committee on Canons appointed by the General Convention of 1853 commended efforts to establish a uniform code of clergy discipline but at the same time warned that it doubted the "constitutional power" ofthe General Convention to "nullify" diocesan systems already in effect,101 and when a proposed uniform judicial system came up for a vote at the 1856 General Convention it went down to ignominious defeat.102 Fifteen years later, the Committee on Canons recommended against an appellate court system to supplement the diocesan system, but did offer an amendment to Article VI of the Constitution giving the General Convention the authority to establish a court of appeal. Significantly, it accompanied its recommendation with the direction not only that the Dioceses be notified (as required under the Constitution) but that "every such Diocesan Convention take formal action upon the proposed alteration, and certify to the next General Convention as to the expediency of attempting the same.',103 For the next thirty years, however, all efforts to establish an appeals process suffered defeat. 100 Perry, Journals of the General Convention of the Protestant Episcopal Church: Vol. 1, 1808, 353-354. 101 Journal of the General Convention, 1853, 100-101. 102 Journal of the General Convention, 1856,36-38,41-43, 163. 103 Journal of the General Convention, 1871,163-164. 49 b) The Bishops and the Presiding Bishop While the principle of diocesan autonomy has historically tended to be associated with that ambivalence toward the office of bishop found in, for example, the Diocese of Virginia, it is also the case that Episcopal Bishops, far from repudiating diocesan autonomy, have largely promoted it, albeit on their own terms. It will be recalled that Article IV of the 1789 Constitution, after reserving the mode of episcopal selection to the will of the affected Diocesan Convention, declared that "every Bishop of this Church shall confine the exercise of his Episcopal office to his proper Diocese or District, unless requested to ordain or confirm, or perform any other act of the Episcopal office, by any Church destitute of a Bishop."104 An American Bishop was thus proscribed from interference in the affairs of another Diocese without the consent of the latter (it did not, interestingly, require the permission of the General Convention). Yet within his own Diocese, a Bishop exercised an authority upon which there were few constraints. Episcopal selection -like the creation of a new Diocese - is initially a local affair, conducted under rules prescribed by the electing Diocese. The confirmation process, by contrast, reflects less the General Convention's supremacy than the sense that Bishops are consecrated for the Church at large. That the General Convention subsequently instituted a system to confirm episcopal elections at times when the General Convention was not scheduled to meet and that substitutes a majority vote of diocesan Standing Committees (a unit rule) for the votes of lay and clerical deputations in the House of Deputies clearly illustrates that it is diocesan approval that is being sought. Strangely, the second edition 104 Perry, Journals of the General Convention of the Protestant Episcopal Church: Vol. 1, 1789, 100. 50 of White & Dykman (published in 1954) posited that the process of episcopal selection worked against the principle of diocesan independence: Each diocese is dependent upon the rest of the Church for procuring a bishop and for continuing the succession when its bishop dies; and thus being absolutely dependent for the vital element of its own organization} it cannot be independent at the same time.lOS What such a conclusion neglects to point out is that the death of a Bishop never leaves the Diocese without an Ecclesiastical Authority, since the Standing Committee automatically fills the void. While TEC has tended to assume that there will be jurisdictional episcopal oversight of all Dioceses, there is no absolute requirement, and the Standing Committee remains free to invite another Bishop to perform episcopal acts under the provisions of present-day Canon 111.13, whose predecessor canon was adopted as early as 1832. (fA vacant diocese,'1 declares the most recent edition of White & Dykman, "was free to choose the bishop of any diocese to become its bishop under the provisions of this canon} no matter how far the two dioceses might be separated from each other. Contiguity of territory was not necessary. Under this canon, the Bishop of Connecticut was, for a time, Bishop of Alabama. lOG Diocesan Bishops were also known to defy the sentiments of their peers in the House of Bishops, who, under Article VI of the Constitution, enjoyed the sole right to try and sentence one of their number. When Bishop George Washington Doane of New Jersey was brought before a court of bishops (who ultimately dismissed the charges) for alleged financial mismanagement in 18521 his initial response was to argue that his critics had no right to interfere in the affairs of an autonomous Diocese: Against this aggression on the diocese of New Jersey, against this invasion of the most sacred rights of [its Bishop]; against this dictation to him to pursue a course marked out by them, and to his lOS Annotated Constitution and Canons (1954), 100. 106 Annotated Constitution and Canons (1981-82), 776. 51 Convention, to pursue that course, under the threat of a presentment; if such dictation shall not be obeyed; and, thus, the fear of a presentment be admitted: [the Bishop of New Jersey] most solemnly protests as uncanonical; and utterly refuses to submit to it.107 Doane's exoneration rendered his argument concerning the invasion of diocesan prerogative moot, but another trial eight years before had demonstrated the problem all too well. The case of Bishop Benjamin Onderdonk of New York, deposed by the House of Bishops ostensibly for "immorality" (though his supporters alleged that it was Onderdonk's high church theology that caused him to be indicted), is noteworthy enough for White & Dykman to describe it as conviction proceeding from an ex post facto law, which "defined an offense and affixed a penalty thereto in a case where no penalty existed before, and all this after the alleged offense had been committed.,,108 For our purposes, it is important to note the sequel in which the Diocesan Convention of New York adopted an attitude of defiance to the deposition. While Onderdonk could not perform episcopal acts, the Diocesan Convention ignored the General Convention's demand that it request Onderdonk's reSignation, rejected calls to pass a resolution declaring that he could never again be a useful Bishop of New York, and continued to pay him part of his salary after he was deposed. As a further gesture of defiance, when its members finally consented to begin a search for a new Bishop, only Onderdonk partisans could secure sufficient backing and one of them was finally elected in 1852.109 New York's refusal to concede the judgment of the House of Bishops (in this case acting for the Church at large) would thus seem to demonstrate the limitations of power at the center. 107 The Protest and Appeal of George Washington Doane, Bishop of New Jersey (Philadelphia: King and Baird, 1852L 11-12. 108 Annotated Constitution and Canons (1981-82), 1040-1043. 109 George E. DeMille, The Catholic Movement in the American Church (Philadelphia: Church Historical Society, 1941),65. 52 The constraints on episcopal interference in other Dioceses imposed by Article VI were sometimes more honored in the breach than in the observance. High churchmen like Bishop Doane were always willing to receive clerical refugees from more Evangelical dioceses, even where the letters of transfer prescribed by the national Canons might not be in order because the priest was subject to discipline for using forms of worship explicitly proscribed by his diocesan Bishop. An extreme example can be found in the case of Oliver Prescott - on trial for hearing private confessions against the wishes of the Bishop of Massachusetts - whom Bishop William Whittingham received into the Diocese of Maryland. In the words of Whittingham protege and future Bishop of Fond du Lac, Wisconsin, Charles Grafton: He said what a Bishop could do a Bishop could undo, and he released Father Prescott from any obligation to obey the decision of the Court in'his Diocese.11o By the 1850s, the internal conflict over what has been called IIritualism", or the introduction of liturgical practices not authorized by the Book of Common Prayer, was coming to a head. As Dr. Mullin has previously noted, a common liturgy had been among the principal objects of the proponents of unity in the 1780s and yet, in less than a century, almost every effort to instill conformity had been set at naught. Part of the reason was that the Bishops themselves resisted most attempts to tamper with their peculiar authority to authorize special forms of worship within their respective jurisdictions. In response to a number of memorials seeking precise definitions of what certain liturgical rubrics in the Book of Common Prayer actually meant, the House of Bishops gave as its opinion that liserious difficulties might arise from an attempt to enforce absolute uniformity in regard to many such details, and that an attempt on the part of the House to effect that, might result in a practical infringement of the rights of 110 Charles C. Grafton, A Journey Godward (New York: Longmans, Green and Co., 1914), 77-78. 53 administration belonging to the Heads of the respective Dioceses.lIlll A decade later, when the House of Bishops issued a "Declaration on Ritualism/' the Bishops who endorsed it were, in the words of Bishop Perry, "careful to reserve 'each for himself his rights as ordinary of his own diocese, and also his rights as a member of the House of Bishops sitting in General Convention;' and it was also stipulated that the diocesan should act his own pleasure as to the 'publication or reception, in his own diocese, of this document, which, from its manner of preparation and signature, could not be regarded in any sense as official, or of more than individual authority.1I1l2 Such a situation was an inevitable consequence of the General Convention's dependence on Bishops and Dioceses for any enforcement of national Canons at the diocesan level. If the latter chose - for whatever reason - not to sanction offending parishes, there was nothing that the General Convention could do about it. A final paint to be made - and one that stands in stark contrast with the debates that got under way in the early twentieth century - concerns the office of Presiding Bishop. While the title was accorded the senior Bishop in order of consecration (and thus first held, for the brief period before his death, by Samuel Seabury). the duties of the Presiding Bishop were designated by the rules ofthe House of Bishops and not specifically by Canon. Unlike the Archbishops of Canterbury and York, however, the Presiding Bishop lacked the status of a metropolitan and the basis of his authority was moral and collegial, not structural. More to the pOint, the duties of the office were so ill-defined that by 1901, when the structures of the institutional church were beginning to be put in place, Presiding Bishop Thomas Clark was obliged to issue a plaintive call for the drafting of a formal statement of the role and responsibilities of the position.113 While we will subsequently demonstrate the twentieth century 111 Journal of the General Convention, 1856, 178. 112 William S. Perry, The History of the American Episcopal Church, Vol. 2, 348. 113 Journal of the General Convention, 1901, 16. 54 constraints imposed upon the reformed office of Presiding Bishop) it is sufficient to note that during the nineteenth century the Presiding Bishop could not even be termed primus inter pares, let alone primus. ({A grand principle of the Protestant Episcopal Church/' wrote future Bishop Thomas Vail in 1841, "is - . the primitive and absolute co-equality of Bishops; and hence this Church can never have any sympathy with the Church of Rome, which seeks to elevate one Bishop to a vast height above all other.,,1l4 ENDURING AUTONOMY: THE TWENTIETH CENTURY CHURCH As the twentieth century opened, pressure for the application of ({business methods" and the creation of centralized planning mechanisms set in train an adjustment ofTEC's constitutional structure, first proposed in 1898 and ratified in 1901, that resulting in the creation of a provincial system, associating contiguous Dioceses in trans-diocesan structures, and the subsequent establishment of provincial courts of review as a source of appeal from the decisions of diocesan courts.l1S A second wave of changes - mostly affecting the national Canons - occurred between 1916 and 1919, most notably the adoption of then Canon 50 (on the Church Pension Fund) and then Canon 60 (on the National Council), . which, together with the adoption of procedures to elect the Presiding Bishop and vest him with certain functions, competed the process begun in 1901.116 That this transformation was significant is not at issue, but it failed to alter the fundamental constitutional status of the Dioceses relative to the General Convention. Indeed, it is remarkable that, in contrast with far more decentralized nineteenth century-, when, as Dr. Mullin demonstrates, an effort was under way to establish the "supremacy" of the General 114 Thomas H. Vail, The Comprehensive Church or Christian Unity and Ecclesiastical Union (Hartford, CT: H, Huntington Jr., 1841), 68. l1S Prichard, liThe Making and re-making of Episcopal Canon Law," 5-9. 116 Prichard, "The Making and re-making of Episcopal Canon Law," 9-12. See also Ian T. Douglas, Fling Out the Banner! The National Church Ideal and the Foreign Mission of the Episcopal Church (New York: The Church Hymnal Corporation, 1996), 120-145. 55 Convention - twentieth century commentators were far more prone to emphasize the principle of diocesan autonomy, despite (or perhaps because of) the expansion of the national church. Indeed, not a few of those attesting to the principle of diocesan sovereignty did so not out of ideological conviction but as social and theological progressives who greatly wished that the circumstances were otherwise. a) The Diocesan Conventions and the General Convention In any discussion of the early twentieth century Episcopal Church, a distinction must be made between the desire of certain individuals to create a supreme national church and the structural realities of that body. An excellent illustration ofthe tensions surrounding this issue can be derived from the life and work of Alexander Lloyd, who became General Secretary of the Domestic and Foreign Missionary Society in 1899. According to his biographer, Alexander Zabriskie, Lloyd believed that: Neither the nation nor the Church was a voluntary association. Both antedated the individual; both were greater than he; both were units of which he was a part and to which he owed obedience. Constructive criticism was necessary and revolt occasionally became a tragic duty, but individualist pursuit of one's own preference against the will of the whole was damnable.117 Such views, while no doubt winning the approval of some of the nineteenth century proponents of national church supremacy, did not reflect mainstream opinion. Zabriskie later concluded that Lloyd's failure in 1919 to be elected the first president of the newly established National Council- a post he coveted - stemmed from his efforts to increase the authority of the DFMS while at its helm. It[Lloyd] was known to favor a highly centralized church government which might threaten diocesan autonomy," 117 Alexander K. Zabriskie, Arthur Selden Lloyd: Missionary, Statesman and Pastor (New York: Morehouse-Gorham Co., 1942), 187. 56 wrote Zabriskie in 1942, lIand to many bishops the Episcopal Church was properly conceived as a federation of autonomous units rather than a single body with administrative sub-divisions."118 But was this conception of a "federation of autonomous units" strictly in accord with twentieth century realities? In the proceedings ofthe General Convention, at least, there would seem to be evidence to that effect. Consider, for example, the numerous attempts to adjust the voting system of the House of Deputies in ways that would make it more 'representative,.119 In 1901, the Committee on Amendments to the Constitution of the House of Deputies, in rejecting a proposal to count divided votes as one-half vote in favor and one-half vote against, stated that the General Convention "is constituted by a federation of Dioceses. Each Diocese is a constituent unit ... A divided vote, therefore, operates as a negative, not because it is opposed to the measure proposed, but because it fails to express an affirmative wish on the part of the Diocese.,,120 (Emphasis added) More than half a century later, the same committee echoed language embraced by the General Convention of 1928 in relation to a vote by orders, which is "a vote by the representatives of the dioceses and Missionary Districts, who vote in their representative capacity and nat in their individual capacity."121 (Emphasis added.) Finally, and perhaps most conclusively in view ofthe arguments presented by Dr. Mullin, we have the testimony of the Committee on Voting Procedures to the General Convention of 1976: [An] indispensable ingredient of [the Compromise of 1789] was the concept of the House of Deputies as a confederation of dioceses and, not as in the revised national government structure, a body of representatives of the Church constituencies in the Diocese ... The concept of confederation 118 Zabriskie, Arthur Selden Lloyd, 219. 119 See Annotated Constitution and Canons (1981-82), 32-41. 120 Journal of the General Convention, 1901,263. 121 Journal of the General Convention, 1964, 166. 57 has persisted has persisted and survived repeated efforts to substitute a body representative of and proportional to the Church membership. It is the polity of the Church.122 (Emphasis added.) In the face of such evidence, it is hard to see how Dr. Mullin can reasonably argue that the testimonies he provides in his affidavit represent the only perspective entertained by leaders of the Church. Even more telling is the testimony to the reality ofthe Diocese is the basic unit of Anglican polity furnished by General Conventions of the last third of the twentieth century, something Dr. Mullin explicitly denies. liThe basic unit of the Episcopal Church is the Diocese," declared a special committee of the Executive Council in 1967.123 A decade later, the Standing Commission on the Structure of the Church made that point even more forcefully: So long as the Church remains (as stated in the Preamble to the Constitution) 'a fellowship ... of ... Dioceses,' it is Constitutional, proper and entirely fitting that the vote and representation of every Diocese be precisely the same ... [for] the American Church, while adhering to democratic prinCiples, is nevertheless not a democracy, but instead is a fellowship of equal Dioceses.,,124 Remarkably, it was still possible to detect elements of this idea, even in the speeches of those generally identified with the greater centralization of national church authority. liThe dioceses have to understand that collectively they are the national church," Presiding Bishop Edmond Browning assured the General Convention of 1997. "We, you, us, together gathered here, are the national church. There is no national church apart from the dioceses gathered here together in this Convention and its elected Council.,,125 122 Journal of the General Convention, 1976, AA2. 123 Journal of the General Convention, 1967, Appendix 15.5. 124 Journal of the General Convention, 1976, AA23. 125 Journal of the General Convention, 1997, Vol. 2, 51. 58 An excellent illustration of the limitations ofthe post-1901 Church can be found in the record of the new provincial system, embodied in Article VII of the Constitution, which White & Dykman describes as "brief and simply permissory.II126 Article VII includes the provision that no Diocese may be included in a province without its consent, and it was on the basis of this provision that the Diocese of Fort Worth . exercised its right to withdraw from Province VII in 2006, Bishop Iker noting at the time that this action "differentiates this Diocese from those in the Province who have taken actions contrary to the biblical faith and witness.1I127 Canon 1.9, which provides more·substantive details of the scope of provincial structures, states that each Diocese determines how its provincial deputies are selected and that provincial synods may not interfere with the internal affairs of its constituent Dioceses, on whom the Provinces remain highly dependent. Indeed, as White & Dykman concedes, (Ithe ability of a diocese to withhold support from the province continues to plague the overall efficacy of the system."128 The culmination of the process of establishing the existing structures of TEC at the General Convention of 1919 is a familiar one to church historians. "From being the least centralized of any part of the Anglican Communion, the Episcopal Church had become the most," wrote George DeMille in 1951.129 Half a century later, Ian Douglas concurred. IIAt the 1919 Convention/' he concluded, lithe Episcopal Church emerged from a nineteenth-century federation of churches to a truly national Anglican Church in the United States.II130 An extreme example of this perspective was provided of Bishop R. Bland Mitchell in 1961J who served with the Board of Missions in the early twentieth century: 126 Annotated Constitution and Canons (1981-82L 105-108. 127 Fort Worth Convention Journal, 2006, 4. 128 Annotated Constitution and Canons (1981-82L 338-340. 129 DeMille, The Catholic Movement in the American Church, 28. 130 Douglas, Fling Out the Banneri, 156. 59 We were a congregational Church in [the 19105]. The diocese was pretty much a legal fiction, and every specialist board or agency was responsible for securing its own funds, even though there was General Convention or Diocesan Convention authorization behind them. I have often likened the Church's organizational structure in those days to a series of dry-goods boxes, or water-tight compartments with no necessary relation to each other. The Church was afflicted with a lot of self contained entities and 'limited objective' societies - a multiplicity of organizations with no orga n izatio n. 131 Such verdicts tend to give rise to the perception of the formal assumption of supreme national powers by the General Convention, but this was far from the case. In the first place, a parallel process of centralization of diocesan functions was under way,132 even as the General Convention sought to expand the functions of TEe. In the second place, the post-First World War effort to secure the necessary financial resources for such expansion through a program of education and congregational canvassing- dubbed the Nation-Wide Campaign - was entirely dependent upon the support of the Dioceses for its success. The General Convention that met in triumph at Detroit in 1919 merged the three independent departments - Missions, Christian Education and Social Service - into one organization reporting directly to an elected National Council, but it effectiveness was directly predicated on diocesan support. Only three years later, the Committee on the Report and Program of the Presiding Bishop and Council gloomily conceded failure: [We] recognize the fact that many feel that the asking power of the Church has been weakened by the failure of the Nation-Wide Campaign to reach its goal or even a mark considerably lower than that set by the proposed Budget above, as well as by the fact that some Diocese were very apathetic, and their apathy must needs have reacted upon the Dioceses that met their full quota.133 131 "Reminiscences of Bishop R. Bland Mitchell: The Pre-1919 Church and the Nation-Wide Campaign Revolution," Historical Magazine of the Protestant Episcopal Church 30 (December 1961): 234. 132 See George E. DeMille, The Episcopal Church Since 1900: A Brief History (New York: Morehouse-Gorham Company, 1955), 30-31. 133 Journal of the General Convention, 1922, 324. 60 $0 substantial were the arrearages by 1926, that the national church was obliged to adopt what came to be known as its IIpay-as-you-go" policy, under which Dioceses indicated what they "expected" to subscribe before a national budget was crafted. "[It] was wholesome for delinquent dioceses/' concluded historian James Addison, "to remember that if they failed in their payments, someone was bound to suffer,II134 but even this expedient apparently fell short of what was desired, for during the brief increase in national prosperity that characterized the late 1920s, many Dioceses "substantially increased" their domestic budgets while making no corresponding effort to meet their national apportionment. A clearly irritated General Convention issued instructions to the National Council to gather data comparing the overall increase in diocesan budgets with concurrent commitments to diocesan mission work, but there the matter rested.135 We will return to the question of the voluntary character of national diocesan assessments, but it shou Id already be clear that the hopes of the proponents of centralization had already encountered a roadblock less than a decade after the national church structures had been put in place. The problem with many of the new national structures was that they continued to depend on the readiness of the Dioceses to cooperate with them. By 1925, much of the General Convention's time was devoted to emphasizing the limits of centralization. The Committee on Amendments to the Constitution bluntly stated that the National Council was a canonical not a constitutional body and that any General Convention could exercise its right to repeal the Canon that had created it.136 Bishop Thomas Gailor of Tennessee, whom the General Convention of 1919 selected as first president of the National Council over Arthur Lloyd, described his role as that of "explaining the new organization to the 134 Addison, The Episcopal Church in the United States of America, 339. 135 Journal of the General Convention, 1928, 293. 136 Journal of the General Convention, 1925,280. 61 clergy and people of the church, and trying to win their approval of it and cooperation.JlB7 Addressing the Church Congress of 1928, soon-to-be Presiding Bishop James DeWolf Perry adopted much the same attitude: [The] National Council could no more expect to produce results, to bear fruit, without the co operation and without the stimulation of parish and vestry and rector and individual layman than the tree could expect to bear fruit without the bough ... If there is any semblance of distributing power in the National Council it is only because with great effort it has built up what is intended to be - simply the decentralizing power by which spiritual force may be felt in every part of our Land, and every parish and every priest and every vestry may be stronger for its exercise.138 It is reasonable to assume that an obvious power of sovereign bodies is their ability to "tax" subordinate entities and to impose penalties for failure to comply. Most Diocesan Conventions, for example, make provision for the denial of seating to parishes that are seriously in arrears in their diocesan assessments and, in view of Dr. Mullin's arguments, one would have expected a similar situation to prevail at the national level. That such was not the case can be seen from the report of the Joint Committee on the Study of Quotas for the General Convention of 1964. After noting that the total diocesan delinquency stood at $1.5 million in 1961, the Committee recommended that assessments be replaced by what it called the IIpartnership principle," or a voluntary sharing of revenue between the Dioceses and the national church on a 50-50 basis. Significantly, it also recommended that "the diocesan assessment, for the expense of running a diocese, be continued as a tax on parishes and missions, and that voting rights in a Convocation or Convention be denied to parishes and mission not paying their assigned amount.JJ139 (Emphasis added.) 137 Thomas F. Gailor, Some Memories (Kingsport, TN: Southern Publishers, Inc., 1937), 221. 138 Forthright Opinions Within the Church: A Record of the Church Congress in the United States on Its Forty-Fifth Anniversary (New York: Charles Scribners Sons, 1928),212. 139 Journal of the General Convention, 1964,757-777 (quotation on 762). 62 The idea of sanctioning Dioceses for failure to meet their quotas has been considered on various occasions. A proposed amendment to Article 1.4 in 1937 would have reduced diocesan representation to one in each order if paying less than 50 percent of the assessment) two if paying at least 50 percent but less than 75 percent and three if paying at least 75 percent but less than 100 percent) but was never debated.140 Twelve years later, a proposed canonical amendment that would have denied Dioceses who failed to meet their apportionment the right to vote at General Convention except for cause and at the recommendation of the National Council was rejected as a violation of Article 1.4.141 Although little was heard of such sanctions for the next half-century, in 1994, the House of Deputies Committee on Structure actually put forward a modified version of the 1937 proposal that would have accorded a Diocese one deputy in each order if paying 25 percent or less of their assessment or two if paying between 26 percent and 50 percent. This time, the House of Deputies actually debated the issue but still rejected it.142 To have supported such a proposal would have seemed all the more incongruous in light of recurrent declarations emanating from committees of the General Convention on just such a subject. "The National Council," declared the Committee on Budget and Program in 1940, "has neither the desire nor the power to force a Diocese to give a sum which is designated as its share, nor can it accurately determine how far or in what direction a mathematical quota should be modified.,,143 Or consider the 1969 report of the Executive Council, which forthrightly declared that 93 percent of its income came through the "voluntary response the jurisdictions make to the quotas established by the General 140 Journal of the General Convention, 1937,231-232. 141 Journal of the General Convention, 1949, 161-162. 142 Journal of the General Convention, 1994, 752. 143 Journal of the General Convention, 1940, 153. 63 Convention."144 A year later, the report of a joint session of the two houses of the General Convention on the financial condition of the Church included the following observation: Mr. Wilson of Delaware, a long-time former member of the Joint Committees on Program and Budget and a retiring member of the Executive Committee, advocated a continuance ofthe present method of apportionment to, and voluntary acceptances by, Dioceses, particularly as that method is to be proposed to this Convention.145 (Emphasis added.) In 1976, the Standing Committee on the Structure of the Church noted that the Program Budget "is apportioned to the Dioceses under a plan of apportionment proposed by the Council and adopted by the General Convention. Each Diocese is expected, but not required, to make a voluntary pledge equal· to the amount of its apportionment.IJ146 And finally, consider that even the comparatively mild language of a House of Bishops resolution proposing that the Presiding Bishop and the Executive Council visit with the Bishops and Councils of Dioceses giving less than one-fifth of their income to the national church and "encourage said dioceses to increase their contribution so that they are in compliance with the asking of the General Convention," went down to defeat at the General Convention of 1997.147 When it comes to assessments, then, it would seem that the General Convention continues to acknowledge diocesan sovereignty, however much it might disavow it in pUblic. Interestingly, even James Dator, commented in his 1959 dissertation on lithe lack of any kind of legal control over the dioceses or 144 Journal of the General Convention, 1969, 259. 145 Journal of the General Convention, 1970, 209. 146 Journal of the General Convention, 1976, AA17. 147 Journal of the General Convention, 1997, Vol. 1, 254. 64 parishes or individual, by National Council, to force, coerce, or make it legally mandatory that they meet their respective quotas,"148 (Emphasis added.) It may be instructive at this juncture to consider that instrument of church governance that continues to be omitted from the constitutional lineup, namely, a court of ultimate jurisdiction. Writing in 1954, a half century after the General Convention first enacted national Canons establishing provincial courts of review, the chancellor of the Diocese of Long Island confided the following observation to the second edition of White & Dykman: At present each diocesan bishop is a lawgiver and, consequently, a law unto himself ... At present the Church is in the same position in which the United States would be without a federal judiciary to enforce the supreme law of the land. We have the supreme law of the Church made quite uncertain by the power of each bishop to declare and pronounce differently upon .it. 149 Dykman's lament demonstrates most eloquently the dilemma of today's proponents of supremacy, namely, the absence of a 'federal' judiciary to "enforce the supreme law." Certain it was that Episcopalians were neither unaware of the problem nor unwilling to propose remedies, since proposals for the creation of a supreme ecclesiastical court were rejected by the General Conventions of 1907, 1913 and 1931.150 Even the milder 1952 proposal to authorize the creation by Canon of a joint commission lito hear and determine any question of Canon Law, which in its opinion is of general importance and application, and upon publication of the determination of the same shall constitute an advisory interpretation of the law of the Church," could not secure the support of the deputies/51 and 148 Dator, The Government of the Protestant Episcopal Church, 169. 149 Annotated Constitution and Canons (1954),119. 150 Journal of the General Convention, 1907, 303; 1913, 281-282; 1931, 349-350. 151 Journal of the General Convention, 1952, 185-188. 65 the matter was largely laid to rest in 1973 when the Committee on Canons of the House of Bishops declared a proposal to establish a national appellate court "not germane, inconsistent or unconstitutional."152 To this day, the issue first identified by Francis Hawks as the greatest flaw in the structure of The Episcopal Church remains unaddressed. In the face of the movement to nationalize the Church, successive General Conventions continued to admit the integrity of the diocesan unit. In 1901, the so-called Milwaukee Memorial to that body observed: [There] is at the present time a wide variation in the use of official titles to describe this church as organized in the several Dioceses in this country, all being in union with the Protestant Episcopal Church in the United States of America, but a majority of Dioceses not using that title as their own official designation in the constitutions of the several Dioceses; while the said name is seldom used in the legal designations of corporations and associations within the Church.153 As with the Accession Clause, it would seem that the Dioceses, by this very act of diversity, were affirming their status as autonomous affiliates. Moreover, even as TEC came to terms with the long-term existence of missionary districts, it continued to emphasize the distinction between them and sovereign dioceses. In the words of the Committee on Amendments to the Constitution of the House of Deputies in 1928: There is a radical difference between a Domestic Missionary District and a Diocese. A Diocese is a permanent institution. It must have a Convention in order to elect deputies. It was the Dioceses who created the General Convention and adopted the P,rayer Book. On the other hand, the Missionary Districts are created by the action of the House of Bishops alone. They are temporary and unstable. They can be abolished, rearranged or consolidated by the House of Bishops. There is not even any requirement in the Constitution that a Missionary District shall have a Convocation. It is entirely possible 152 Journal of the General Convention, 1973, 85. 153 Journal of the General Convention, 1901, 18. 66 for the Deputies from a Missionary District to be appointees of the Bishop. They do not necessarily have any representative character.154 (Emphasis added.) Diocesan autonomy also continued to be explicitly conceded on certain other matters, as evidenced in the following declaration of a committee of the General Convention of 1952 exploring the "problem" of allowing women delegates to the General Convention: From its inception the Protestant Episcopal Church in the United States has been strongly democratic in nature and structure ... This democracy has always characterized the Church and has been consistently apparent in General Convention even when individual dioceses were much less truly democratic ... Yet the autonomy of these dioceses was respected by the General Convention, even when it insisted upon its own more democratic structure ... Nor has the General Convention interfered with the right of the several jurisdictions to decide whether their councils and convention shall include women. Such action, by autonomous dioceses, has been respected by General Convention throughout history.lss b) The Bishops and the Presiding Bishop A key feature of the twentieth century Episcopal Church has been the redefinition of the role of the Presiding Bishop. While men such as William White and John Henry Hopkins achieved considerable prominence in that office, they did so by force of personality, not by institutional authority. The nineteenth century Presiding Bishops all had jurisdictional responsibility for a Diocese and also tended - by virtue of the fact that the title fell to the senior Bishop in order of consecration - to be already advanced in years. The General Convention of 1919 prOVided for the election of the Presiding Bishop and made him the president of the National Council (initially it was proposed that the Presiding Bishop be the "executive head of all departments of the Church's work" and there be a separate elected preSident, but the two offices were merged after 1925). In 1943, after a failed attempt in 1937, the 154 Journal of the General Convention, 1928, 250. 155 Journal of the General Convention, 1952, 671-672. 67 General Convention approved an amendment requiring the newly elected Presiding Bishop to resign his previous jurisdiction and serve solely in an executive capacity. All Presiding Bishops since Henry Knox Sherrill (1947-1958) have conformed to that model.1s6 Although the contemporary perception is that the Presiding Bishop is the metropolitan of an Anglican province, it is important to realize that this was not always so. Indeed, TEC frequently revealed a strong aversion to the idea of a 'superior' class of bishop, a fact that led the Committee to Consider the Question of the Election of a Presiding Bishop to assure the General Convention of 1925 that "there is no hint of there being given to the Presiding Bishop, such as seems to be feared by some, any archiepiscopal powers, authorizing any interference in the internal affairs of a diocese."ls7 Over thirty years later, when offered the opportunity to amend the Canons to allow the Presiding Bishop to be styled IIArchbishop of the Church," the General Convention of 1958 refused to agree.ISS That stance also prevailed in 1982, when the General Convention, while willing to add the designation "Primate/' declined to comply with the recommendation of the Standing Commission on the Structure of the Church to substitute "Archbishop" for "Presiding Bishop," even though the latter insisted that this would "place the Presiding Bishop on a titular par with other Anglican metropolitans, while implying no change in authority or any archiepiscopal jurisdiction:,ls9 If the Presiding Bishop is no archbishop, does he or she nevertheless still exercise sovereign power? The testimony of a variety of experts would seem to be no. Consider the view of Powell Mills 156 Annotated Constitution and Canons (1981-82)' 199-201. 157 Journal of the General Convention, 1919, 297. 158 Journal of the General Convention, 1958, 180-181. 159 Standing Commission on Constitution and Canons of the Episcopal Church, Annotated Constitution and Canons for the Government o/the Protestant Episcopal Church in the United States of America otherwise known as the Episcopal Church (New York: Office of the General Convention, 1981-1982), 3rd Edition, 1991 Supplement, 21-22. 68 Dawley, professor of ecclesiastical history at the General Theological Seminary in New York, whose contribution to the Church~5 Teaching Series was one of the primary instruments of seminary instruction during the 19505. The Presiding Bishop, declared Dawley, Itexercises no direct pastoral oversight of a diocese of his own, nor does he possess visitational or juridical powers within the independent dioceses of the Episcopal Church.',160 For a more personal (and anecdotal) perspective, we may turn to the memoirs of the first of the modern Presiding Bishops, Henry Knox Sherrill: All kinds of questions came to the Presiding Bishop, for people have no idea that his power is rightly limited. Let a lay person be discontented with the affairs ofthe diocese: the simple solution is to, write to the Presiding Bishop and then be unhappy when informed that the matter rests with the 161 diocese. Even John Hines, so often credited with the accretion of power in the office of Presiding Bishop, refused to allow use of the title "Most Reverend/' precisely because it denoted an archbishop, and at the 1969 Special General Convention ~epudiated suggestions that the selection of additional"ethnic" delegates from the Dioceses be by local black clergy and laity rather than the Bishop, arguing that this was a choice 162 that only the Diocese could make. Recent attempts to portray the Presiding Bishop as enjoying supreme authority over her fellow bishops have little basis in the institutional history of the office. There is also little doubt that Bishops have had little inclination to surrender their autonomous status in the years since 1919. Henry Sherrill, then Bishop of Massachusetts, described how, when he was assigned to raise funds for army chaplains he was warned that William Manning, Bishop of New York, had made it clear that the National Council would not raise funds in his Diocese without the 160 Powel M. Dawley, The Episcopal Church and Its Work (Greenwich, CT: Seabury Press, 1955), 106. 161 Henry K. Sherrill, Among Friends (Boston: little, Brown and Company, 1962), 223. 162 Kenneth Kesselus, John E. Hines, Granite on Fire (Austin, TX: The Episcopal Theological Seminary of the Southwest, 1995), 218, 309-310. 69 163 Bishop's consent, something that Sherrill was careful to obtain in writing. At a special meeting of the House of Bishops in 1929, a petition was denied by the responsible committee on the ground that "the House of Bishops has not jurisdiction over the diSCipline of individual ministers, this belonging to the Bishop in whose jurisdiction the alleged offense was committed."164 Given this institutional history, it is all the more surprising that recent events have unfolded in the manner that they have. The Council of Advice to the Presiding Bishop of 1974 offered the following verdict on how church disputes had tended to be resolved: In the past certain controversies were dealt with pragmatically by allOWing dioceses individually to deal with them. Such certainly was true of the churchmanship issue in which dioceses developed their own life-styles often so varied that a stranger wandering through them might conclude that there were several rather than one Episcopal Church. But the pluralism was and is the glory of our Church. It remains one Church because of its traditional acceptance of certain pragmatic stances such as creative compromise, its one ministry, its single constitutional and canonical structure, its Book of Common 165 Prayer. Three years later, in the wake ofthe decision of the General Convention of 1976 to accept the ordination of women, the House of Bishops endeavored to embody this pluralism in a so-called "Conscience Clause," intended to shield from canonical sanction those who held conscientious objections to (or support for) the ordination of women in unsympathetic Dioceses. 163 Sherrill, Among Friends, 184-185. 164 Journal of the General Convention, 1931, 168. 165 Journal of the General Convention, 1976, 8316. 70 THE INTEGRITY OF THE DIOCESE: THE LAWYERS, THE BISHOPS AND THE GENERAL CONVENTION Dr. Mullin devotes paragraphs 145-163 of his affidavit to an extended survey of how selected nineteenth century Itcommentators" addressed what he considers to be the established facts ofthe General Convention's supremacy and the irreversibility of diocesan accession to the national Constitution and Canons. The authorities in question extend from Francis Hawks - arguably the earliest of Episcopal constitutional historians - in 1841, to William J. Seabury, scion of famous family, in 1912. No examples are provided for the period after 1919, the reasons for which will soon become apparent. At the outset, it should be emphasized that none of these authorities enjoyed any official Church sanction. Worthy and informed though their opinions might be, they simply expressed what they themselves believed. Francis Hawks, arguably gifted with more humility than most, put the matter plainly in the introduction to his commentary on the Constitution and Canon: As to the policy of law, animadverted on in the following pages, the author has but expressed his private opinions, honestly entertained in love to the Church ... In no sense is the book put forth as an authority; it may however contribute in some measure to promote, throughout the dioceses, uniformity of opinion interpreting our body of canon law.166 (Emphasis added.) Moreover, the language of "supreme legislature" and "superior ultimate jurisdiction" only began to be employed after most of the founding generation of TEC had passed from the scene (William White, for example, died in 1836) and it was language that the legal authorities cited by Dr. Mullin frequently struggled to justify from the provisions of the Constitution itself. Illustrative of this point, are Dr. Mullin's conclusions regarding Francis Hawks (on whose writings many of the subsequent commentators based theirfindings). In paragraphs 146 and 154, he holds that 166 Hawks, The Constitution and Canons of the Protestant Episcopal Church, vi. 71 for Hawks the "supremacy of the General Convention over the dioceses was axiomatic" and that lIunion [with the General Convention] was perpetual.,,167 Yet Hawks also believed that before 1789 "in each State, the Church considered itself an integral part of the Church of Christ, perfectly independent, in its government, of any and every branch ofthe Church in Christendom/,IGS a perspective that led him to a far more dynamic understanding ofthe compact created in 1789 than that acknowledged by Dr. Mullin: But an union between parties perfectly independent may be formed upon various terms and conditions. Every independent right may be surrendered, or some only may be given up: so, too, a greater or less equivalent may be given for each surrender; we next ask, therefore, what were the terms of the union agreed on? In other words what is the true meaning of the constitution? The instrument itself can of course be expected to do no more than present certain great general principles. It cannot provide by express declaration for each case, specifically, for this would rather make it a statute book than a constitution; whereas its true purpose is to furnish certain guides to action, in the future formation of a statute book. Its interpretation therefore should be liberat and rather according to its general spirit, than to its strict letter, when the rigor of literal interpretation, would tend to deny the great end of union, contemplated by its framers. Let it never be lost sight of, that in all such matters, as fairly arise under this general constitution, the polar star in interpretation is, that it was made for the purpose of binding us all to "walk by the same rule," And yet it must also be remembered, that no liberality of interpretation should so stretch its powers, as vir~ually to destroy those diocesan rights, that are as essential to our well-being, as union itself ... In the government of the United States an ultimate arbiter in interpretation is provided in the Supreme Court. In the Church, however, we possess no such advantage for we have no tribunal that can authoritatively declare to the whole Church what the meaning of the constitution is. The House of Bishops may indeed express an opinion if it pleases, and the churches generally respect it, as they should do: but such opinion is neither law, nor authorised judicial exposition of law. Hitherto there has been practically but little difficulty, but it is easy to foresee, as our number increase, the certainty of future conflict. It is difficult to lay down a general principle on this delicate subject, of the respective rights of the Church at large, and the churches in the several dioceses. What is desirable is, on the one hand, to promote such an union as is compatible with diocesan independency; and on the other, so to uphold the just rights of the latter, as to prevent their merger in the former. lG9 (Italics in original; bolded emphasis added) 167 In the latter paragraph, Mullin argues that Hawks was "protective of diocesan authority," but this would seem to be impossible if the General Convention was truly supreme. 168 Hawks, The Constitution and Canons of the Protestant Episcopal Church, 4. 169 Hawks, The Constitution and Canons of the Protestant Episcopal Church, 9-10. 72 Scrutiny of the key phrases reveals Hawks to be dedicated to the principle of "un ion/' without ever referring to the General Convention as such; it is the Dioceses and their relationship that concern him. While it is indeed true that Hawks ultimately concluded that the Dioceses surrendered "such an exercise of independency as would permit them to withdraw from the union at their own pleasure/,17o it is hard, in the light of his other conclusions, to see how this could be more than a pious hope on his part. The same year that Hawks' commentary appeared, a clerical contemporary, Thomas Vail, published his The Comprehensive Church, in which he reached a different conclusion: [Each] Diocese is absolutely independent, except in certain particulars, wherein, by its own voluntary union with the others, it transfers its own authority to the General Convention. The connexion or union of each Diocese with the others, through the General Convention, is perfectly voluntary; and any Diocese has a right to withdraw from the connexion whensoever it may please. The only penalty for so doing exists in nature - the inconveniences attendant upon such a withdrawal and the sense of having departed from the most perfect unity of the Church in our country. An example of such 171 withdrawal is not, we may add, on record, and from the nature of things, will probably never OCCUr. (Emphasis added.) Vail thus concurred with Hawks in perceiving the union - characterized by a delegation of authority by the Dioceses to the General Convention - as desirable and its dissolution as attended by numerous "inconveniences/' but still perceived the union as both voluntary and revocable. It is a telling divergence that calls into question Dr. Mullin's assertion in paragraph 145 of "an unequivocal and unanimous view of the hierarchical nature of the Church and the lack of independence of its dioceses" by nineteenth century commentators. Murray Hoffman, the other great nineteenth century authority cited by Dr. Mullin in paragraphs 147 and 155, presents a different perspective entirely. Hoffman it was who introduced the language of 170 Hawks, The Constitution and Canons a/the Protestant Episcopal Church, 11. 171 Vail, The Comprehensive Church, 84. 73 "superior ultimate jurisdictionll to describe the General Convention as well as the notion of IIperpetual union.1I Hoffman himself conceded that the arguments that he constructed were not based upon an authority laid down in legislation: We have here a very limited foundation for the legislation of the convention over the whole Church. In truth upon the doctrine of deriving authority from the con.stitution, there would be no power in it, except to regulate its own organization, to govern all changes in the Prayer Book, and to direct the trial of Bishops.t72 (Emphasis added.) Hoffman's reasoning was impeccable, and for that reason unpalatable to a high churchman such as himself who viewed with concern the prospect of American Anglicans becoming lithe dissevered members of separate congregations, and not the compact body of a national church.,,173 If the Constitution does not itself contain language of supremacy in respect of the General Convention, then It must be concluded that the General Convention is not supreme. Those who argue that the General Convention has never been called upon to consider the introduction of supremacist language should direct their attention to the General Convention of 1895, at which a proposed new article for the TEC Constitution was presented by Alexander Burgess, Bishop of Quincy, which would have declared the General Convention (renamed the "General Synod") to be lithe Supreme Legislative Authority in this Church." In a further stipulation, the article would have stated that lithe right belongs to each Diocese to legislate for its own diocesan interests ... but no Diocese or Province shall by its legislation contravene these Constitutions, or any Ca nons of the General Synod enacted in conformity therewith." Despite ~pproval by the House of Bishops, the final revisions that emerged after conference 172 Murray Hoffman, A Treatise on the Law a/the Protestant Episcopal Church in the United States (New York: Stanford and Swords, 1850), 116. 173 Hoffman, A Treatise on the Law of the Protestant Episcopal Church, 114. 74 between the two houses bore no trace of such language; supremacy was there for the taking in 1895, and the General Convention did not act.174 The very fact that Bishop Burgess proposed the amendment demonstrates an awareness of an eXisting deficiency. In bringing to his cause in paragraph 150 the writings of John Andrews, Dr. Mullin contrives to overlook the fact that the passage he cites from an appendix to Andrews' work is actually a reproduction of a passage from Hoffman.175 This is a matter of greater concern than might at first be apparent, for Andrews was by no means in accord with Hoffman: If Judge Hoffman is right in his conclusions, then the dioceses, under whose auspices, and by whose deputies the Constitution was framed, instead of conferring by that instrument upon the General Convention a limited authority to enact canons, lost thereby their own independence and became subordinate to the General Convention as to all powers, legislative or otherwise, that were not carefully reserved to them in that instrument, and shall not be taken from them by amendment of the same. Surely this could not have been the understanding of the framers of the Constitution, or the meaning of the resolution of June 24, 1786, under the terms of which they acted. It is submitted with confidence} that the proceedings of the Convention of 1786, which substantially framed the Constitution, in connection with those of the Convention of 1789, which finally adopted it, show conclusively, that the legal effect of that instrument must be, as its terms indicate, to confer certain limited powers essential to a National Church, upon the new organization created by it, and that the General Convention is bound to confine its action within the prescribed limits} and to those matters which concern the whole body of members, leaving respective dioceses independent as to all matters which concern dioceses only. 176 (Emphasis added.) Such a conclusion is in marked variance with the views of Hoffman. A little earlier in his treatise, Andrews used the nebulous language earlier adopted by Frances Hawks to describe the relationship between the General Convention and the Dioceses: 174 Journal of the General Convention, 1895,42-43, 143-144. 175 Andrews, Suggestions on the Law of the Protestant Episcopal Church, iii. By 1883, Hoffman's thirty-year old volume was out-of-print. 176 Andrews, Suggestions on the Law a/the Protestant Episcopal Church, 59-60. 75 The line of demarcation between the jurisdiction of the Church, as thus organized, and that of the respective dioceses, may not in all cases be clear, but there is undoubtedly such a line, and it is sufficiently distinct for practical purposes, as is seen from the fact that no serious difficulty has ever arisen between the General Convention and any diocese in the matter of jurisdiction, although it has always been taken for granted that the Constitution contemplates a federal union of, and not a central government over, dioceses. Whatever differences of opinion may, at any time, have existed, they have been found gradually to yield to the fair manly Christian sentiment and treatment of the Church at large. Her dioceses and members are loyal to her, for the reason that their judgments are always appealed to, and fair consideration is given to every honest suggestion; and her conclusions therefore being reached in good faith, as to matters which she believes to come fairly within her jurisdiction, are usually, sooner or later, cheerfully acquiesced in.l77 (Emphasis added.) Far from reflecting the deference of a subordinate to the "superior ultimate jurisdiction," this declaration reveals that the Church has avoided jurisdictional disputes only because of mutual agreement to do so. If Dr. Mullin's argument were correct, then the loyalty of dioceses and members would be owing to the 'fact' of their subordination, something that John Andrews explicitly rejected. Dr. Mullin's other authorities on supremacy - Francis Vinton, Francis Wharton, Hill Burgwin and William Seabury (cited in paragraphs 148-149 and 151-152) - add little new to the debate. Vinton echoes Hoffman in insisting that Article II of the Constitution (now Article 1.4) "establishes the Supremacy of the General Convention, and the voluntary and permanent subjection to it of any Diocese which has adopted the Constitution/,178 though neither the language of supremacy nor of "permanent subjection" appear in the original Article or in subsequent revisions. Burgwin is the most unequivocal exponent of supremacy, but his view that dioceses have fino absolute, reserved or organiC rights," is hardly borne out by the proceedings of the General Conventions of his day. Seabury, by contrast, accepts the subordination of the General Convention to the Constitution, declaring that the Constitution 177 Andrews, Suggestions on the Law a/the Protestant Episcopal Church, 57. 178 Francis VI nton, A Manual Commentary on the General Canon Law and the Constitution 0/ the Protestant Episcopal Church in the United States (New York: E. P. Dutton and Company, 1870), 124. 76 "regulates the powers of its supreme legislature, the General Convention, and constrains, limits, and obliges the Church in the Dioceses which have acceded to it."l79 (Emphasis added.) Thus, even Dr. Mullin's authorities cannot agree among themselves as to the distribution of power within the Church. In the case of Francis Wharton, Dr. Mullin fails to mention that the early part of Wharton's article actually identifies features of the ecclesiastical structure that suggest a more con-federal arrangement: There is no supreme executive, such as we have become accustomed to in the United States, and such as we have learned to regard as essential to a well constituted State. There is no supreme common judiciary. There are as many courts as there are dioceses: but each of these courts is supreme . . . The bishops, also, meet in council very much in the same way in which the sovereigns of confederated States meet in council ... No one is bound by the action of the majority, except so far as he chooses to take the obligation upon himself.lBO (Emphasis added.) Furthermore, Wharton's ultimate conclusions concerning ecclesiastical structures are negative ("I say this reluctantly, because I think such a concentration of power in the General Convention is not only out Jl181 of harmony with our political system, but is in itself unwise ). Wharton, then, recognized the inconsistency of the arguments propounded by his contemporaries with the circumstances of the Church's founding, but failed to appreciate the significance of the absence of language of supremacy. If Wharton emerged from this process unhappily committed to the maintenance of supremacy, some of his contemporaries showed themselves to be less bewildered. Bishop Perry, writing in his The General Ecclesiastical Constitution of the American Church in 1891, opined: 179 William J. Seabury, An Introduction to the Study of Ecclesiastical Polity (New York: Crothers and Korth, 1894), 264. 180 Francis Wharton, "How Far Are We Bound by the English Canons." in Perry, The History of the American Episcopal Church, Vol. 2, 398. 181 Ibid., 400. 77 [By Article V of the Constitution] our fathers proposed to secure the perpetuation of Diocesan independence. As they had come into union, surrendering only those rights and powers to the central or national organization specifically stated in the Constitution or bond of union, so were other State or Diocesan Churches to come in for all time. Whatever may be the action of the future, at our organization and for the first century of our existence, Diocesan independence has been the acknowledged law and rule of our life and being. 182 Just four years later, Bishop Alexander Garrett made the same point to the first Convention of the Diocese of Dallas. flEvery diocese is an independent and sovereign state," he insisted, Ifheld in the unity of the Catholic Church by its episcopate, according to the rule of St. Cyprian. The diocese thus becomes the ecclesiastical unit, a full and perfect integer sufficient of itself for all purposes of growth and development."183 Far from fading as the era of the modern Episcopal Church dawned, those voices speaking against the notion of the supremacy of the General Convention appeared to increase during the twentieth century. Consider the words of William Lawrence, architect of the Church Pension Fund, on the eve of the birth of new national ecclesiastical structures in 1919: We are not Congregationalists; we are not a group of independent self-governing parishes. The parish is not the church unit. Nor on the other hand are we a religious autocracy. We are an organiC body; the people, the clergy and the Bishop, who is the chief pastor. And we are bound together by spiritual ties, knit into one administration by constitutional bonds, traditions and limitations, so that each order and individual is dependent on the others, and each does his best work through cooperation with others. The unit of the church is the diocese -the Bishop} clergy and laity.184 182 Perry, The General Ecclesiastical Constitution of the American Church, 262. 183 Quoted in G. Thomas Graves, "Catholic Voices: Revisions to Title IV Are Bad law," Living Church, October 22, 2010. See http://www.livingchurch.org/news/news-updates/2010/10/22/catholic-voices-revisions-to-title-iv-are bad-law 184 William Lawrence, The American Cathedral (New York: The Macmillan Company, 1919), 4. 78 In 1934, at the height of the Great Depression, the Joint Commission on Aided Dioceses of the General Convention joined the chorus. "A Diocese/, it insisted "is an ecclesiastical sovereign state and no action can be imposed upon it without its consent ... The Constitution and Canons of the Church secure that kind of independence to a Diocese which makes change in its territory or jurisdiction unlawful without its consent.,,18S Ten years later, Bishop Lawrence's counterpart in New York, William Thomas Manning, articulated the same perspective in an address to the House of Bishops: The relation between a Bishop and his Diocese is one of great sacredness and spiritual reality and this relationship exists between the Bishop and his Diocese - not between the General Convention and the Diocese. One of the most universally established and accepted principles in the whole history of the Episcopal Church, in the whole of the Anglican Communion, and in the holy Catholic Church throughout the world, is the Autonomy, and Integrity of the Diocese. Everything in our Constitution and Canons, asserts, maintains, and insists upon this principle, and upon this principle the whole system of Anglican and Catholic Church life rests. The Diocese is the unit of the Church's Iife. 186 (Emphasis added). Such perspectives continued to be expressed in the aftermath ofthe Second World War. Powell Dawley, whose The Episcopal Church and Its Work has already been cited in relation to the role of the Presiding Bishop, noted disapprovingly in 1955 how the national church remained at the mercy of the Dioceses: [Dioceses] still possess an independence far greater than that characteristic in most other Churches with an episcopal polity. While in the early history of the Episcopal Church this may have stimulated its development, today it is not without some serious disadvantages. Diocesan participation in any national program or effort, for example, must be voluntarily given, it cannot be forced. Again, while the bishop's exercise of independent power within the diocese is restricted by the share in church governance possessed by the Diocesan Convention or the Standing Committee, his independence in respect to the rest of the Church is almost complete. The smooth functioning of church-wide endeavors depends upon his wholehearted co-operation and participation, accepting for his diocese the share and responsibility assigned to it. Neither the General Convention nor the National Council, lacking control 185 Journal of the General Convention, 1934, 505. 186 Quoted in William D. F. Hughes, Prudently With Power: William Thomas Manning, Tenth Bishop of New York (West Park, NY: Holy Cross Publications, 1967), 205. 79 over the larger part of the Church's resources, can put men and money to work in missionary districts or other areas of crucial challenge without the voluntary cooperation of the diocese.187 (Emphasis added.) Only a decade later, a handbook on Episcopal canon law reiterated Dawley's arguments. "The Episcopal Church is not, strictly speaking, a single jurisdiction," declared Daniel Stevick, a faculty member of the Philadelphia Divinity School. ilA diocese is free to accept or reject or qualify its national responsibilities .. . diocesan support of the work of the national church is voluntary; commitment can be withheld.1I188 Neither Stevick nor Dawley considered this situation desirable, but they acknowledged it as an inevitable consequence ofthe constitutional structure, more than 150 years since its inception. Turning to the specific issue of Dr. Mullin's assertion of the ('binding nature of diocesan accession" in paragraphs 153-163, it is vital to recognize that, at no time, is any evidence adduced of a specific prohibition of diocesan withdrawal in the Constitution and Canons themselves. Of the five individual authorities cited, three - Vinton, Andrews and Judd - simply reproduce the arguments of Francis Hawks, who himself offered no constitutional or canonical basis for his belief that the right of withdrawal was "surrendered" by the Dioceses. Similarly, Murray Hoffman's notion of "perpetual union" is nowhere to be found in the Church's Constitution, but rather in Article XIII of the Articles of Confederation, a compact that was in the process of being dissolved just as TEC was coming into being. Perpetuity was an aspiration, but one to be sustained by continued voluntary partiCipation only. Dr. Mullin also adduces evidence from the rejection of the Virginia report of 1878 as demonstrating the binding nature of accession. As far as the report is concerned, it is hard to see how a report that was neither approved not adopted by the Diocesan Convention (for reasons that are not 187 Dawley, The Episcopal Church and Its Work, 115-116. 188 Daniel B. Stevick, Canon Law: A Handbook (New York: Seabury Press, 1965), 88-89. 80 stated) can be viewed as the basis for any substantive discussion of the constitutional position of the Diocese. The views expressed by Hill Burgwin and A. S. Richardson are simply personal opinions regarding a proposition that was, at that time, entirely theoretical, though one suspects that Burgwin hoped to preempt the possibility by writing in terms that would discourage even contemplation of such an act. The Diocese of Pennsylvania, meanwhile, though perfectly entitled to express its opinion as to its own actions enjoyed no peculiar authority to speak for other sovereign Dioceses. These arguments will obviously be a source of consolation to those who today express such views, but they have no overriding authority. The fact that the issue evoked little or no discussion from 1890 to 1990 may simply reflect the absence of an issue that motivated a sufficiently large number of Episcopalians to contemplate withdrawal. In paragraphs 164-170, Dr. Mullin addresses the only case on record where diocesan withdrawal was considered by some to have taken place, namely during the Civil War. It is, however, a matter of immediate concern whether or not the diocesan withdrawals of 2007 and 2008 are congruent with those of the 1860s or are demonstrably different in character. As Dr. Mullin himself notes, Southern Episcopalians did not seek to secede. Unlike many of the mainline Protestant churches which had divided into northern and southern denominations prior to the outbreak of the Civil War, the division of TEe was not the result of differences over the theology of slavery, but a reflection of the general understanding of Anglicanism as a communion of national churches (whose individual jurisdiction did not extend across national borders). The political reality of Southern secession thus made the establishment of a separate Church inevitable. The issue of diocesan sovereignty was not raised by the Southern Dioceses because it was not in contention, but since it was not discussed, we cannot therefore conclude a absence of belief in the individual right of diocesan withdrawal. 81 More revealing is the position adopted by the General Convention during the same period. As Dr. Mullin details, although that body deliberately abandoned its earlier abstention from matters political to endorse the cause of the Union - much to the disgust of Presiding Bishop John Henry 189 Hopkins - it turned aside the thrust of more pointed resolutions designed to cast the Southern churchmen as agents of rebellion. Among those resolutions was a proposed amendment of Section 5 of Canon 13, which read as follows: Whereas the jurisdiction of this Church extends in right to all persons belonging to it within the United States, whenever in any Diocese the Bishop and the Diocesan Convention shall have abandoned this Church, by renouncing or formally discontinuing their ecclesiastical connection with it, the clergy and parishes who may adhere to this Church shall be under the Episcopal jurisdiction of the Presiding Bishop, or of such as he may appoint, until such clergy and parishes shall have re-established within the Diocese a Diocesan organization under the constitution and canons of this Church, which they may do in the same manner as if no Diocesan organization had previously existed; provided it be done with the consent and approbation of the Bishop in charge. 190 The Committee on Canons - without comment - turned aside the proposed change. 191 In such manner did the General Convention - arguably faced with the most serious challenge to its authority in its history - turn aside a canonically authorized procedure, which, one could argue has recently been instituted in those Dioceses that have withdrawn from TEC, albeit without any form of canonical authorization. The Civil War, if it provides no precedent, also presents no obstacle to the process of rescinding accession. When Dr. Mullin refers in footnote 73 of paragraph 169 to the need - if accession were comparable to a treaty between sovereign powers - to require anew the oath of accession, he misses the point of his own arguments. The Southern Dioceses did not Ilw ithdraw" in the way that the 189 Robert B. Mullin, Episcopal Vision/American Reality: High Church Theology and Social Thought in Evangelical America (New Haven, CT: Yale University Press, 1986), 203-204. 190 Journal of the General Convention, 1862, 44. 191 Journal of the General Convention, 1862, 99-100. 82 Diocese of Fort Worth has recently done by constitutional action, but constituted themselves by virtue of the secular political conditions in which they found themselves. When the earlierform of civil arrangement was restored, the necessity for such arrangements also ended. CONCLUSION TEC came into being as a federation of sovereign Dioceses, heirs to the autonomous Anglican churches that existed in the various American colonies. By the terms of the Constitution that they fashioned together, the Dioceses as corporate entities formed the essential units of the Church. The General Convention that they constituted was - and is - an assembly in which Dioceses enjoyed equal representation and to which the Dioceses delegated powers as they saw necessary. Throughout its history, the General Convention has acknowledged its status as a body whose effective authority depended upon voluntary compliance. The rights of Dioceses and of individual Bishops have been consistently recognized as inherent and not as grants from the General Convention that may be withdrawn at its pleasure. The General Convention can neither tax nor dissolve a Diocese, and a Bishop is ultimately subject only to the judgment of his peers. In the most recent survey of canon law in the constituent churches of the Anglican Communion, TEC ranks as one of the least hierarchical church bodies within it. 192 There is no language of supremacy in the TEC Constitution, and efforts to introduce such language have come to nothing. Thus, the General Convention's enactments enjoy no essential priority over diocesan legislation. Nor does TEC's Constitution contain any language demonstrating the concept of indissoluble accession. The General Convention ~ as the embodiment ofTEC - is a voluntary 192 Norman Doe, Canon Law in the Anglican Communion: A Worldwide Perspective (New York: Oxford University Press, 1998). 83 association composed of Dioceses who elected to accede to the Constitution and Canons of that body, and that accession is revocable. There is no question that all those concerned with the founding of the Church desired a permanent union, even as they recognized that it could not be compounded of hierarchical dictation. Ultimately, the Diocese of Fort Worth must be considered to have exercised its inherent rights under the national Constitution and Canons. 84