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Part Five

The Global Christian View Supports the Parish as the Basic Unit

Outside of the precincts of the Episcopal and Anglican churches, the Christ ian churches world-wide have been acknowledged the important on the local parish. Even Orthodox theologians such as John Zizoulas have explored the theological nature of the local congregation as the fullness of the Church. Zizoulas, in a passage that finds perfect harmony with Articles XIX and XXIII writes: "The basic ecclesiological principle applying to the notion of the local Church ? is that of the identification of the Church with the eucharistic community. Orthodox ecclesiology is based on the idea that wherever there is the eucharist there is the Church in its fullness as the Body of Christ. The concept of the local church derives basically from the fact that the eucharist is celebrated at a given place and comprises by virtue of its catholicity all the members of the Church dwelling in that place." John Zizioulas, Being as Communion: Studies in Personhood and Church (Crestwood, NY: St Vladimir's Seminary Press, 1985) 247.

The Ecumenical Movement has also taken a strong theological and ecclesiological interest in the priority of the local church. The New Delhi Assembly of the WCC in 1961 focused on the local congregation as the basic unit of the Church and asserted that the local congregation was the primary vehicle for mission. "Every Christian congregation is part of that mission, with a responsibility to bear witness to Christ in its own neighborhood and to share in the bearing of that witness to the ends of the earth." The New Delhi Report: Third Assembly of the World Council of Churches, 1961 (London: SCM Press, 1962) 249.

Property Rights in Early American Anglicanism

The Episcopal Church, as organized, deliberately adopted a policy based upon the consent of the governed. This is a critical understanding for the consideration of the property ownership issue.

As has been made clear, the parish - not the diocese or the national church - was the basic unit of the Protestant Episcopal Church in the United States of America. Property rights lay with those holding title to the property and were not vested in other bodies, e.g., dioceses or the national church. Scant evidence of the system of church laws in England did not make across the Atlantic Ocean and was not extended to the Colonies and what did transverse the waters permitted the local parish to hold title to its properties.

This fits into the context that reflects that in no instances in Colonial America had the Bishop of London hold title to congregational property. This corollary to the policy based upon the consent of the governed was continued in actual practice.

As noted earlier, the differences among the churches in the New World were by no means confined to theology or geography. But the end result as to property ownership was carried over into local ownership of local lands and buildings.

In Virginia, the English-established Commonwealth, patrons, vestries, or Mission Societies, held title to the buildings and glebe lands and the stipen ds of parish clergy were paid by the State, but not the diocese. In Maryland and South Carolina, the church was also established, but property was vested directly with the proprietors or patrons of the parish or if the parish was independent or chartered by the state legislature, in the vestry.

In the Mid-Atlantic states of Delaware, Pennsylvania, New York and New Jersey, the church was not established. It was one of many competing in a pluralistic Christian environment. Title to parish property lay either in the hands of the London-based missionary societies who paid the stipends of the clergy, as was the case in N orth Carolina or in Pennsylvania outside of the City of Philadelphia or with the vestry as in the case of William White's parish, Christ Church in Philadelphia, or in the case of Trinity Church in New York.

In New England, the Episcopal churches were a tolerated, but they were in effect a discouraged minority. Congregationalism was the established church of Connecticut and Massachusetts. Parish vestries or proprietors or mission societies owned the property of the congregation. In Boston, ownership of King's Chapel, the largest of Boston's Episcopal Churches lay in the hands of those who owned the pews. Matters of control and disposition of physical assets, such as land and buildings, were proper matters for a congregational polity.

In fact, the Domestic and Foreign Missionary Society, as the only corporate entity of the Episcopal Church in the United States, did not even exist until 1820. Thus at the beginning of American Anglicanism, ECUSA could not have held title to local properties because it had no corporate entity into which to vest legal title.

Despite what is often assumed, a denomination's hierarchical polity does not guarantee property ownership for the central church authority. The Roman Catholic trusteeship controversy after the independence of the United States exemplifies this reality. See http://www.newadvent.org/cathen/07719b.htm. The Roman Catholics do not, as a matter of fact, hold property in the Unites States by virtue of their hierarchical polity. The Roman Catholic Church holds property in the same way that any American or American corporation holds property, i.e., by deeds and acts of state legislatures, and not because of its ecclesiastical structure. In fact, the Pope himself in the early 1800s admitted that the only way for the Roman Catholic Church to hold property absolutely in the USA was for the property to be conveyed to it.

For many decades, property rights lay with those holding title to the property and were not vested in other bodies, i.e., not in a diocese or the national church. The first serious challenge to this polity came with the Civil War.

The Protestant Episcopal Church in the Confederate States in America

The secession of the Southern States during the American Civil War saw the only instance, so far, of dioceses withdrawing from the national church. The actions and statements of conventions and of the bishops illustrate the acceptance of White's polity within the Episcopal Church.

Following the outbreak of armed conflict and the creation of the Confederate States of America, the Southern dioceses withdrew from the Protestant Episcopal Church in the United States. The first to speak was Leonidas Polk, Bishop of Louisiana. Polk believed that a church followed its nation. When Louisiana seceded from the Union in January 1861, Polk issued a pastoral letter stating that the Diocese of Louisiana was necessarily independent from the Protestant Episcopal Church in the United States of America and from all other dioceses of that Church.

"We have, therefore, an independent diocesan existence. ? Our separation from the brethren of the Protestant Episcopal Church in the United States of America has been effected because we must follow our nationality; not because there has been any difference of opinion as to Christian doctrine or catholic usage. Upon these points we are still one. ? Our relations to each other hereafter will be the relations we both now hold to the men of our mother-church of England." William Polk, Leonidas Polk: Bishop and General, II vol. (New York: Longmans, Green 1915) 1:304-6.

Though none of the other Southern Bishops followed Polk's reasoning, they all came to the same conclusion. The bishops of Alabama, Georgia, and South Carolina argued that the Constitution of the American Episcopal Church only applied to those dioceses "in the United States" pursuant to Article 1 of the Constitution or the language "in any of the United States" found in Article 5. Since the dioceses in the South were no "longer in the United States," they could not constitutionally be part of that Episcopal Church. Joseph Cheshire, The Church in the Confederate States (New York: Longmans, Green 1912) 20-5.

Bishop Atkinson of North Carolina and Bishop Ottley of Tennessee took a third route to secession. Bishop Atkinson declared that the secession of the Southern states from the United States had no effect on the Episcopal Church. The Southern dioceses remained a part of the Episcopal Church unless they were either forced to withdraw or voluntarily withdrew from the Episcopal Church. Edgar Pennington, "The Organization of the Protestant Episcopal Church in the Confederate States of America" Historical Magazine of the Protestant Episcopal Church 17 (1948) 315-8.

"We do not lose our rights and interests, then, in that Church by ceasing to be citizens of the United States, but only when we voluntarily withdraw from that Ecclesiastical organization, and establish another for ourselves. This, I conceive, we had the right to do, even if the United States had not been divided, were there sufficient causes for it; and that division does itself furnish sufficient cause." Cheshire, 34. The dioceses, in Bishop Atkinson's view, possessed the right to secede at will. G. MacLaren Brydon, "The Diocese of Virginia and the Southern Confederacy" Historical Magazine of the Protestant Episcopal Church 17 (1948) 395.

Opinion in the Northern dioceses was divided. The Presiding Bishop, Hopkinson of Vermont, opposed the secession of the Southern States and Dioceses. Another group argued that the Southern dioceses were schismatic and should be condemned by the Church. Murray Hoffman, What is Schism? (New York: E. Jones, 1863).

A Resolution was introduced into the 1862 General Convention to this effect seeking condemnation of those who left ECUSA. The measure was defeated, and a substitute resolution expressing concern and reproof was passed in its place. Journal of the General Convention, 1862, 37-40, 51-4, 92-4.

Officially, General Convention took no notice of the secession. It began the roll call of dioceses at the 1862 Convention with "Alabama." Addison, 198. When the war was over, one of the key factors in reunion was the acceptance by General Convention of actions taken by the Southern Church which, strictly speaking, were unconstitutional. Journal of the General Convention, 1865, 45, 56f, 167f.

With end of hostilities, the individual Southern dioceses reevaluated their relationships with the Episcopal Church. The Diocese of Texas believed that the end of the war saw the end of the Confederate Church. The division of the states by war by necessity led to a division of the Church while the reunion of states resulted in a reunion of the Church. The Diocese of Texas chose to attend the 1865 General Convention and did not send deputies to the Confederate Church's convention of that year. DuBose Murphy, "The Protestant Episcopal Church in Texas during the Civil War" Historical Magazine of the Protestant Episcopal Church 1 (1932) 98-100.

Bishop Atkinson of North Carolina urged his diocese to return to the Episcopal Church. As a diocese had the right to secede at will, it also had the right to rejoin at will, he argued. Atkinson and North Carolina along with deputies from the now bishop-less Diocese of Tennessee joined Texas in attending the 1865 General Convention. DuBose Murphy, "The Spirit of Primitive Fellowship: The Reunion of the Church" Historical Magazine of the Protestant Episcopal Church 17 (1948) 438.

The remaining Southern dioceses attended the Convention of the Southern Church in November 1865. In the first year after the war, South Carolina and Virginia urged the Southern Churches keep themselves apart form the Northern Church. However, the mind of the Confederate Convention was expressed in a resolution of November 8: "That in the judgment of this council it is perfectly consistent with the good faith which she owes the Bishops and Dioceses with which she has been in union since 1862, for any Diocese to decide for herself whether she shall any longer continue in union with this council." Pennington, "Organization of PECCSA", 335. On May 16, 1866 the convention of the Diocese of South Carolina voted to rejoin the Episcopal Church and the last of the Confederate Church "renewed their connection with the Church in the United States." Cheshire, 252.

The history of the Confederate Church, though colorful in its own right, illustrated the consensus of the polity of Anglicanism on the American shores through the middle years of the Nineteenth Century. The National Church had no claim to the property of the local parishes. It was a voluntary association of dioceses which could, at will, come and go. The question of "nullification" never arose in the course of the Civil War and the Reconstruction period which followed.

White's polity still held. The Church was a voluntary association where authority was delegated, and reserved from the parish to the diocese, and the diocese to the national Church. The National Church and the dioceses had no claim to the property of the local parishes.

Property Ownership in the Late Nineteenth Century

Until the early 1870s. There was little or no question that the local parish held its own property. In 1871, then Canon 25 entitled "Of the Consecration of Churches" was revised in an effort to begin to seek consolidation of property ownership at the national level as a result of an Illinois court case. The Cheney case confirmed local ownership.

The 1954 edition of White and Dykman (Vol. 1, 427-431) discusses and explicates this effort. The commentary reads: "Exposition of Canon 25 The consent of the bishop and standing committee should be acknowledged and proved the same as a deed, and such consent so acknowledged be filed with the deed of alienation.

That the General Convention of 1871 which amended the canon recognized this necessity in order to make legal the requirement of the consent of the bishop and standing committee is evidenced by the resolution adopted by the Convention as follows: 'Resolved, the House of Bishops concurring, That it be recommended to the several Diocesan Conventions to take such measures as may be necessary, by State legislation or by recommending such forms of devise or deed or subscription as may secure the Church buildings, grounds, and other property, real or personal, belonging to the Protestant Episcopal Church in the United States of America, to those who profess and practice the doctrine, discipline, and worship of the said Church; and to protect such buildings, lots, and other property, from the claims of those who abandon the doctrine, discipline, and worship of the said Church.'

Many of the states have enacted statutes giving force to the requirements of this canon, to make valid and legal such alienation of Church property. The amendment to this canon made by the Convention of 1871, and the resolution adopted by the same Convention, were due to the outcome of the celebrated Cheney Case in the Diocese of Illinois (now Chicago).

The Rev. Dr. Cheney had been deposed by the bishop in June 1871, but still continued to officiate as rector of Christ Church in the city of Chicago. It was feared that the property of Christ Church would become alienated from the Protestant Episcopal Church, a fear which was afterwards realized. When Dr. Cheney went into the Reformed Episcopal Church, he took the property of Christ Churc h with him, and the courts sustained the transfer, holding that there was no law to prevent it.

The Convention of 1871, in enacting the amendment to the canon, providing that before the consecration of a church, the bishop was to be satisfied that the building and grounds thereof are secured from 'danger of alienation from those who profess and practice the doctrine, discipline, and worship of the Protestant Episcopal Church," recognized that while this was as far as the Convention could legislate in this matter, it was not sufficient to prevent such alienation, and the Convention therefore adopted the resolution, recommending that the several diocesan conventions take steps to procure legislative action by which such alienation could be prevented.(Vol. 1, 430-431).

This explanation in the 1954 edition of White and Dykman expresses the General Convention's own opinion - in 1871 and right through its approval of the 1954 White and Dykman - that civil legislation was required to retain property and that canon law was insufficient to hold property if there were no specific state legislation or some instrument of trust in favor of the diocese or the national church. The bishops of the various dioceses were left to obtain civil legislation in their favor or to demand deeds of trust from the local congregations, as the Roman Catholics were forced to do in their earlier controversies. Either action would have been controversial.

Concerns nationally about obtaining property ownership arose in earnest in the 1970s with several changes. Beginning in the early 1970's parishes across the country began to leave ECUSA over issues surrounding the doctrine, discipline and worship of the Church. Issues ranging from Prayer Book revision, female clergy, the gay agenda, and the abandonment of classical Anglican doctrines, spawned a wave of secessions from ECUSA. Many of these secessions found their way into the state and federal Court systems as dioceses and parishes grappled over the control of property.

At the same time, the United States Supreme Court in Jones v. Wolf, 443 US 595 (1979) adopted a new means for deciding such cases. It approved the neutral principles of law criteria in awarding the property to the local church majority because there was no express trust in any of the relevant documents in favor of affiliation, even though the church was in fact a member of a hierarchical church. Justice Blackmun stated, "Rather than deferring to the congregational majority or hierarchical tribunal, the neutral approach looks at the constitutional documents, bylaws, property deeds, and even canons of the church. If the entitlement to property can be determined from these documents, without any reference to disputed matters of religious doctrine or governance, a court may do so. But if the dispute is essentially about a departure from an express doctrinal trust, or the documents are riddled with religious concepts the neutral principles method is inappropriate, a court must fall back on deference or abstain altogether."

In affirming the use of neutral principles as an option, Justice Blackmun J. noted the limitations of this approach: "The neutral principles method ... requires a civil court to examine certain religious documents, such as a church constitution, for language of trust in favor of the general church." Wolf at p. 604.

This language spurred the powers of the national to press for the adoption of the now-notorious Dennis Canon as an effort to accomplish that which it had been unable to do otherwise. If anything, the passage of the Dennis Canon was necessitated by the legal reality that without express language, the claim of a diocese or the national church was weak, as indicated by the California decision in Protestant Episcopal Church in the diocese of Los Angeles v. Barker, 171 Cal. Rep. 541 (ct App. 1981). In Barker, three churches which left ECUSA were able to retain their properties because they had never acceded to any claim by the diocese or the national church in any legal documents able to be considered under the neutral principles of law doctrine. The Dennis Canon was introduced in 1979 in order to assert the interests of the national church to overcome the effect of the United States Supreme Court case of Jones v. Wolf.

Historically, the parish, not the diocese or the national church, held title to its own property. The facts before, at and after the establishment of ECUSA evidences that property rights lay with the entity holding title to the property and were not vested in other bodies, e.g., dioceses or the national church. Up to the controversial Dennis Canon in 1979, civil legislation was required to retain property otherwise. Canon law was acknowledged to be insufficient for the diocese or national church to hold parish property if there was no specific state legislation or some instrument of trust in favor of the diocese or the national church. Parish property ownership is another central historical distinctive woven into the fabric of American Anglicanism at its beginning.

The Twentieth Century: Centralization and Decline

In the history of ECUSA from its founding, the basic unit of the Episcopal Church in America has been the local parish. As originally organized, the Episcopal Church in the United States of America deliberately adopted a policy based upon the consent of the governed. White's polity became the polity of the Episcopal Church.

Until 1901, there were only two places in the Church Constitution where the Presiding Bishop was mentioned. In 1823, the Constitution was amended to allow the "Presiding Bishop" to have the power to appoint an alternate place for General Convention to meet if some "good cause" made it necessary not to meet in the chosen place. Perry, 2:17, 19, 66, 95. In 1844, Article 10 was added to the Constitution that, in part, allowed the "Presiding Bishop" under certain circumstances to take order for the consecration of bishops for foreign countries. Journal of the General Convention, 1844, 26ff.

Historically the Presiding Bishop took the chair as President of meetings of the House of Bishops. He was a diocesan bishop with no special powers, authority or privileges. The Presiding Bishop was the bishop senior to his peers by virtue of the date of his consecration. He was not a manager or chief executive of the National Church, but responsible only for his own diocese. Outside of General Convention, the office had no activity outside of General Convention. His functions and duties were not enumerated under the Constitution and Canons of the Church.

Section 3 of the new Article I in 1901 was finally added in an effort to define constitutionally the office of the Presiding Bishop. The office was to be determined by seniority from point of consecration among bishops having jurisdiction in the United States. He was "to discharge such duties as may be prescribed by the Constitution and Canons of the General Convention." Journal of the General Convention, 1901, 35.

In 1919 General Convention amended the Constitution making the office of Presiding Bishop elective by the House of Bishops and subject to confirmation by the House of Deputies. Edwin White and Jackson Dykman, Annotated Constitution and Canons for the Government of the Protestant Episcopal Church in the United States of America (Greenwich, CT: The Seabury Press, 1954) 1.18-22. The Presiding Bishop was also made executive head of the National Council in 1919. In 1922, he was made administrative head of that body as well. Journal of the General Convention, 1919, 165-70; Journal of the General Convention, 1922, 159; Canon 61.1.1. In 1943, there were subsequent changes in the Canons which required the Bishop to resign his diocesan see. Journal of the General Convention, 1943, 153f.

In tandem with the creation of the Office of an elected Presiding Bishop was the establishment of the National Council by the 1919 General Convention. The National Council, now known as the Executive Council was a revolutionary development in its day as it created a "board of directors" of the Church who were not directly accountable to the people in the pews. It essentially created an entity that existed outside of the meetings of General Convention and created a mechanism for Convention to extend its reach giving itself powers and authority hitherto reserved to the dioceses. C. Rankin Barnes, "The General Convention of 1919", Historical Magazine of the Protestant Episcopal Church 21 (1952) 238-42.

As the Church increased in numbers, influence and wealth, the role the National Council gave to itself was "managing" a growing non-profit corporation. Accountability lay not with the parishes or the dioceses which provided the funding, but to General Convention which selected the members of the Council. With the changes of the 1960s and 1970s, an era that saw the decline of the church by a third. The Executive Council, formerly the National Council reflected its new "authority" ECUSA strayed from its own founding principles. This has led to the legal strife and dissension that still plagues the Episcopal Church.

Conclusion

A. The Parish Is the Basic Unit of the Church in American Anglicanism

Since its founding and in the history of the Protestant Episcopal Church in the United States of America, its basic unit has been the local parish. The federal system of church government -or, more properly speaking, the confederated system - is the hallmark of Anglicanism in the United States. Governing authority rested with the parish and thereupon was delegated by the parish to any other body, such as the diocese or the national church. This is a chief difference between the Anglicanism of the Church of England and the Anglicanism of the Episcopal Church in the United States.

A compromise was reached in 1789 whereby Bishop White's system of government, with a few minor and unrelated changes, was enacted by and for the Episcopal Church in the United States. John Booty, historiographer of the Episcopal Church writing in the Church Teaching Series in 1979 clearly observed that the classical American understanding of Anglican church government is that temporal authority flows from the parish. Booty, p. 71. Also, noted historian Loveland has cogently stated that "The basic unit in the government of the Church is not the diocese as in England, but the parish." Loveland, p. 284. Further, Roger Beckwith, an English scholar of Anglicanism, in his introduction to Anglicanism writes, "In practice at least, the parish is the basic unit of Anglican Church life, to which the diocese is accessory (not vice versa)." Beckwith, Sec. 6.

In the history of the Protestant Episcopal Church in the United States of America from its founding, the basic unit of the Episcopal Church in America has been the local parish.

B. Local Property Rights Prevailed in Early American Anglicanism

The Episcopal Church in the United States of America deliberately adopted a policy based upon the consent of the governed. The parish, not the diocese or the national church, was the basic unit of the church. From these cardinal principles, property rights lay with the local church which held title to its property which it had purchased and thereupon constructed buildings, all with its own monies. Ownership of these lands and buildings was not vested in other ecclesial body, like a diocese or the national church. The first serious challenge to this polity of parish-based property ownership did not occur until the 1860s with the Civil War. The result of that precedent only confirmed the reality that the local parish was the owner of its property and buildings.

Up to the Dennis Canon in 1979, civil legislation was required for the diocese or national church to retain property otherwise. Canon law had been acknowledged to be insufficient for the diocese or national church to hold parish property if there was no specific state legislation or some instrument of express trust in favor of the diocese or the national church.

The parish, not the diocese or the national church, held title to its own property. That is another central historical distinctive woven into the fabric of American Anglicanism at its beginning.

C. Centralization of Control Using the Corporate Model - Not Beginning until the 1900s - Has Failed the Purposes of the Church

It was not until the first quarter of the Twentieth Century - well past its first hundred years of existence - that one began to see a move toward centralization of managerial functions within the Episcopal Church with the creation of the Presiding Bishop's Office to help manage the growth. The most recent quarter century has witnessed further centralization at the national level which has been designed to assert over control assets and usurp the authority of the dioceses and local parishes. The first efforts toward centralization were a function of prosperity, the second a function of decline. The 1979 Dennis Canon, which seeks to place all Church property in trust for the national hierarchy is but one example of a declining church turning in on itself and against its basic unit of ecclesiology by attempting to control its ever-dwindling human resources and a lack of spiritual dynamism. This corporate model and the failure on many within it to guard the Faith once received has, in many instances, not served godly purposes.

---The Rev. Canon Dr. Tim Smith is the rector of Holy Trinity Anglican Church in Jackson, Mississippi. He can be reached at: RevDrDr@jam.rr.com

---The Rev. George Conger is Chaplain to a Life-Care Center in Florida.