...it shall be the duty of the Presiding Bishop to present the matter to the House of Bishops at the next regular or special meeting of the House. If the House, by a majority of the whole number of Bishops entitled to vote, shall give its consent, the Presiding Bishop shall depose the Bishop from the Ministry...Here is Robert's analysis:
On the one hand, the calumny that continues to be heaped upon our Presiding Bishop and her Chancellor over their interpretation of Canon IV.9.2 (the deposition of a Bishop canon) has become quite tiresome.Thank you, Robert.
On the other hand, I do think it is important for TEC's leaders and their supporters to be able to demonstrate that their reading of the deposition canon is not arbitrary or capricious, but is grounded in sound principles of canonical interpretation.
As a lawyer who has some experience with canon law, I think they have more than met that burden. At the risk (nay, the certainty) of being tedious, here's why:
1. The original deposition canon was enacted in 1853, and required the consent of "the majority of the Members of the House of Bishops."
The canon did not call for a meeting of the House, and, in language that is beyond peradventure, required the consent of the majority of the entire membership of the House of Bishops.
2. The canon was amended in 1859, when it required the consent of "the majority of the House of Bishops." Again, no meeting was called for, and it remained clear that the consent of the majority of the entire House of Bishops had to be obtained.
3. Another amendment was adopted in 1874, in response to the deposition of Bishop Cummings, Assistant Bishop of Kentucky. Although the Presiding Bishop had obtained the written consents of a majority of the Bishops entitled to seats in the House of Bishops, the canon then in effect (see 2 above) required the consents of "the majority of the House of Bishops."
To resolve any doubts about the deposition process going forward, the 1874 canon required the Presiding Bishop to convene a meeting of the House of Bishops to consider the matter, and further provided that, "if a majority of the whole number of Bishops entitled at the time to seats in the House of Bishops, shall at such meeting give their consent," the Presiding Bishop shall proceed to depose the abandoning Bishop.
It is significant that, in terms of the number of consents required for deposition, the canon was revised in 1874 to correspond to what the Presiding Bishop had actually obtained for Bishop Cummings's deposition: a majority of the Bishops entitled to seats in the House of Bishops.
Based on that history, it seems clear that, in 1874, although a meeting was now required, the canonical majority of consents needed for deposition was a majority of Bishops entitled to seats "in the House of Bishops," not merely those entitled to seats at the meeting.
4. In 1904, the canon was amended again to provide that, "it shall be the duty of the Presiding Bishop to convene the House of Bishops to consider the case; and if the said House, by a majority of the whole number of Bishops entitled to vote, shall give their consent," the Presiding Bishop shall depose the Bishop in question.
NOTE WELL--the words "whole number of Bishops entitled to vote," in the 1904 canon, are NOT followed by the words "in the House of Bishops," or any reference whatsoever to "the House of Bishops."
Prior versions of the canons did contain such a reference: 1853 ("the majority of the Members OF THE HOUSE OF BISHOPS"); 1859 ("the majority OF THE HOUSE OF BISHOPS"); and 1874 ("a majority of the whole number of Bishops entitled at the time to seats IN THE HOUSE OF BISHOPS")(emphasis added).
The 1904 General Convention could have said "a majority of the whole number of Bishops entitled to vote IN THE HOUSE OF BISHOPS," but it did not. It certainly had a significant prior history of using those words, and when it wanted to refer to the entire House of Bishops, it did so expressly. The clear implication of omitting any such reference in the 1904 canon, is that the majority required is a majority of the "whole number of Bishops entitled to vote" WHO ARE PRESENT AT THE MEETING (in the current canon, the meeting is the clear referent immediately preceding the specified vote). Otherwise, the act of the General Convention in eliminating the words, "in the House of Bishops," makes no sense.
5. The above interpretation of Canon IV.9.2 (which, with certain modifications not relevant to the present discussion, is essentially the version passed in 1904) is supported by general principles of parliamentary law, including Roberts' Rules of Order, and other provisions of TEC's Constitution and Canons. For example:
(a) The general parliamentary rule, relating to the required number of votes, is that a MAJORITY OF A QUORUM is necessary to carry a matter. A majority of a quorum is a majority of THE VOTES CAST at a meeting, not a majority of those present at the meeting. See Roberts' Rules of Order, and Canon V.3.1 (which, formerly designated as Canon 53, has been in existence since 1832).
Accordingly, by specifying that a majority of the "whole number of Bishops entitled to vote" is necessary to consent to a deposition, Canon IV.9.2 requires the consent of a majority of the Bishops who are PRESENT at the meeting, AND WHO ARE ENTITLED TO VOTE, not just the consent of a majority of the votes actually cast. In that respect, it requires a vote that is higher than a majority of a quorum.
It also certainly does not require the consent of a majority of the Bishops PRESENT at the meeting, since, over the years the canon has been in effect, some Bishops entitled to seats in the House of Bishops were not entitled to vote (e.g., Missionary Bishops and Suffragan Bishops). In that respect, it may allow for a vote lower than a majority of the Bishops present (if some of those present are not entitled to vote).
(b) In all of the places in the Constitution where the words "whole number of Bishops entitled to vote" are used (there are no others in the Canons), they are followed by the words "in the House of Bishops." See Article X (Alterations or additions to the Book of Common Prayer--used twice in that Article); and Article XII (Alterations or amendments to Constitution).
(c) There are many other places in the Constitution and Canons where, when the General Convention wanted to refer to the entire House of Bishops, or to all the members of a certain category of Bishops, it said so expressly and clearly: e.g., "the Bishops in this Church entitled to vote in the House of Bishops" (Article III); "the Bishops of this Church exercising jurisdiction" (Canon III.11.3.(d); "every Bishop of this Church exercising jurisdiction" (Canon III.11.4.(a); "the Bishops qualified to vote in the House of Bishops" (Canon IV.3.21.(c); just to name a few.
6. The prior use of Canon IV.9.2 in the depositions of the former Bishops of Fort Worth and Ecuador Central, which proceeded without objection at a meeting, at which a quorum was present, on the basis of the consents of a majority of the Bishops at the meeting who were entitled to vote, clearly supports the interpretation laid out above.
Of course, there are certain people who will never be convinced of the reasonableness of our Presiding Bishop's interpretation of Canon IV.9.2, no matter what level of detail or analysis is provided in support of that interpretation.
Nonetheless, in my opinion, based on a detailed analysis of the language, history, and use of Canon IV.9.2, as well as a review of other relevant provisions of the Constitution and Canons of the Episcopal Church, the depositions of Bishops Schofield and Cox were reasonably, fairly, and canonically conducted.
Let's move on to something else.
J.
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