An Opinion on the Vacant Cure: Canons 46 and 47
no place: no publisher, [1952]
The following is an opinion on Canons 46 and 47, written by The Reverend Robert F. Capon with the assistance of a Panel on Canon Law consisting of The Right Reverend Jonathan G. Sherman, S.T.D., The Venerable Canon Charles W. MacLean, The Reverend George R. Tiebel, The Reverend Hobart J. Gray and The Reverend Henry R. Kupsh of the Diocese of Long Island.
I have studied this Opinion along with the Chancellor of the Diocese, Jackson A. Dykman, and feel that it is an outstanding interpretation of these two Canons. I have no hesitancy in recommending the studying of this Opinion by my brothers in the House of Bishops.
I wish to thank The Reverend Robert F. Capon for his scholarly and careful study of these Canons and also am grateful for the amount of work done by the Panel.
There will be an amendment proposed to Canons 46 and 47 at General Convention and it is the considered opinion of the Bishop and Chancellor and the unanimous opinion of the Clergy of the Diocese of Long Island, meeting in conference, that Canons 46 and 47 should remain as they are.
James P. DeWolfe
Bishop of Long IslandAugust 12, 1952
Garden City, N.Y
THE VACANT CURE CANON
AN OPINION ON SECTIONS 1, 2 AND 3 OF CANON 47
Section One
When a parish or Congregation becomes vacant the Churchwardens or other proper officers shall notify the fact to the Bishop. If the authorities of the Parish shall for thirty days have failed to make provision for the services, it shall be the duty of the Bishop to take such measures as he may deem expedient for the temporary maintenance of Divine services therein.
QUESTION: Why is there a requirement that the Bishop be notified of a vacancy?
ANSWER: The Bishop is to be notified because he has an essential part to perform in the filling of the vacancy. As successor to the Apostles, the Bishop is the ultimate source of all pastoral office and jurisdiction in the Church, and since the filling of a vacant cure involves giving his license, that is, part of his own jurisdiction, to the rector-elect, the occurrence of a vacancy is of vital concern to him.
Before going on to the defense of this view however, it is to be noted that there are two other views of the Bishop's concern for a vacant cure which demand consideration.
The first is, that he might be concerned merely as the head of the Diocesan office staff—concerned that is, as a news bureau chief might be, not because he can or will act upon the information, but simply in order to be able to supply that information to interested parties. This "clearing house" view however, is not borne out by the facts, since this canon requires, among other things, that the Bishop "communicate with the vestry" and "be satisfied that the person so chosen is a duly qualified minister". Such phrases clearly imply that the Bishop's concern with a vacant cure is an active and not a passive one, for they direct him to come to a decision on the information sent him and to make that decision known. They cannot possibly be so construed as to put him in the position of a bystander who passively receives notices of events in which he has no part. To cite but one instance: when, in section two of this canon, it is stated that "No election . . . shall be had until . . . sufficient time . . . has been given to the Bishop to communicate with the vestry . . .", the only construction possible is that the Bishop's part is an active one.
The second view would allow that the Bishop indeed has an active concern, but that he acts simply as the canonical guardian of the Church's law, and [1/2] not as the ultimate source of pastoral office and jurisdiction. This view, which would make the Episcopal office like that of the President of the United States as defined in the recent Supreme Court decision, has as its basis the notion that pastoral jurisdiction in the Church derives not from the apostolic character of the Church's Ministry, but from some constitutional bestowal of authority. It might well be called "extreme constitutionalism", since it insists that antecedent to or apart from the Constitution, Canons, Rubrics, etc., the Bishop has no inherent authority or jurisdiction. This view has been advanced at times, but it is not borne out by the facts. Indeed, the evidence points to the quite opposite position that the Bishop is the source of pastoral jurisdiction by virtue of his Apostolic office, and that the formularies do no more than prescribe how that authority and jurisdiction are to be used. They do not claim to create it. Some of the evidence for this is as follows:
a. At the delivery of the Bible in The Consecrating of Bishops, (BCP, p. 558) the words do not purport to confer any authority or jurisdiction (as do the corresponding passages in the Ordering of Deacons and Priests); they merely admonish the newly consecrated Bishop to minister faithfully that full authority and jurisdiction he is presumed to have received at the imposition of hands. (In the case of a Deacon or Priest the Bishop specifically bestows authority and jurisdiction by the phrase "Take thou authority . . .", but in the Consecration of Bishops the Presiding Bishop merely admonishes the Consecrand to "Give heed unto reading . . ." and continues in that hortatory vein.) The reasoning behind this distinction seems clear. A Bishop, by his consecration, receives the full Apostolic jurisdiction for that portion of Christ's flock over which he is set as Chief Pastor. Priests and Deacons however are given only such parts of that jurisdiction as the Bishop may from time to time bestow namely, a certain portion at ordination (for example, a Priest is given general "Authority to preach the Word of God and to minister the Holy Sacraments in the Congregation"), and other portions as need may require, by the giving of special license. The full jurisdiction however always remains with the Bishop by virtue of his Apostolic office.
b. In the Offices of Instruction (BCP, p. 294) it is stated that "The office of a Bishop is to be a Chief Pastor in the Church", which phrase clearly implies that the Bishop is the superior of all other pastors. Moreover, the fact that in the Letter of Institution (BCP, p. 569) the Bishop gives "... our License and Authority . . . you continuing in communion with us . . ." makes it impossible to maintain that he is merely chief among equals. Indeed it demands the conclusion that all other pastors receive their jurisdiction from him, as from a source. Were his jurisdiction and authority only that of a deputy, it would be gross arrogance to claim that the license given was his. The [2/3] Commissioner of Motor Vehicles grants license to operate a car but merely as an officer to whom the State of New York delegates its authority. He does not claim to be giving his own license since only one who is himself the source of jurisdiction could possibly make such a claim. Therefore it is not tenable that the Bishop acts-merely as a guardian of the law, or on such authority only as is delegated to him.
The evidence having failed to support either of these limited views of the Bishop's office, it remains to justify our contention that the Bishop is concerned with the vacant cure because he is the ultimate source of pastoral office and jurisdiction. It is conceded by most churchmen that the ministerial powers proper to the offices of Bishop, Priest and Deacon are conferred at ordination by the imposition of the Bishop's hands. Moreover, it must be conceded by all that Episcopal Ordination is the only regular and lawful means now employed in this Church for the bestowal of those powers. It is exceedingly important however to be aware that in the Ordering of Deacons and Priests more is bestowed than the ministerial powers, pure and simple. Both services contain two formulas of bestowal, one at the imposition of hands, and the other at the delivery of the Bible, and only the first formula deals with the bestowal of the actual ministerial powers appropriate to each office. The second, if it be examined carefully, will be found to bestow not an office with its powers, but the authority and jurisdiction necessary for its lawful exercise; and it is this exceedingly important, but often overlooked matter of jurisdiction which must claim our attention if we are to grasp firmly the Church's conception of the pastoral office. Take the Ordering of Priests as a case in point. It is clear from the formula used at the imposition of hands (BCP, p. 546) that the Ordinand is, by that act, given all the powers requisite to the office and work of a Priest: the grace needed for dispensing the Word of God and the Holy Sacraments, etc. At the delivery of the Bible, however, the Bishop gives him, in addition, a certain general authority to exercise those powers subject to the laws of the Church. By the former the Priest receives his office, by the latter, his general license under the Bishop's jurisdiction. In other words it is the mind of the Church that there is more to Episcopal polity than the mere production of properly empowered ministers, who, once ordained, are without further connection with the Episcopate. She insists that if they are to exercise their powers they must be duly authorized to do so. Hence it is clear that there are two sides to the Apostolic Ministry of the Church: Apostolic power and Apostolic jurisdiction, the former contributing the note of validity, the latter, the note of regularity. Both are conferred by the Bishop alone as Chief Pastor and neither can be dispensed with if the Church is to be true to her Apostolic nature. Finally however, it must be noted that the jurisdiction bestowed on a Priest at ordination is of a general sort only: while it is a condition sine qua non of every Priest's ministry, it does not of itself constitute him rector of any particular parish. [3/4] Hence it is necessary, if a Priest is to become rector of a parish that he receive that special license from the Bishop of which the Letter of Institution makes mention; and it is this necessity which causes the Bishop to concern himself with the vacant cure.
To sum up: The Bishop may be said to bestow ministerial office once for all, but ministerial jurisdiction continuously. The former is irrevocable, but the latter can be withdrawn, suspended, enlarged or redirected; and since the filling of a vacant cure involves the prospect of having to confer a special jurisdiction, the occurrence of a vacancy is of prime concern to the Bishop.
OBJECTIONS
Objection 1: The second rubric of the Office of Institution does not state that the Office "shall" be used, but only that it "may" be used. No argument should be based on a service or form that is of permissive use only.
Response: The fact that a service or form is of permissive use only does not invalidate it as evidence of what the Church teaches or intends, for by the very act of promulgating it in her official book she sanctions the doctrine it contains. Some parts of that book may be optional, but none of them fail to represent her mind.
Objection 2: In the early days of the Church in America, Colonial Governors sometimes inducted ministers into parishes. If laymen could thus bestow pastoral jurisdiction, it is impossible to maintain that the Bishop is the sole source of it.
Response: That Colonial Governors at times inducted ministers into parishes will not be denied; but that in so doing they were bestowing pastoral jurisdiction is not so readily to be admitted. Induction into a parish is chiefly concerned with lawful admission to the temporalities of a cure, and is not, like Institution, an act of a specifically ecclesiastical nature. Moreover even if it could be shown that the jurisdiction exercised by the Governor was specifically ecclesiastical, it is to be remembered that under the English system, in which the King is an integral part of the Religious establishment, the ecclesiastical jurisdiction of the colonies remained in the Crown until otherwise delegated, and that insofar as the Royal Governors were acting on the Crown's authority, their action did have a quasi-ecclesiastical status. Finally, it must be observed that even though the colonial jurisdiction remained technically in the Crown until 1723, the Bishop of London actually exercised some jurisdiction over the Church in America throughout the colonial period.
The point to be made is simply that in the Colonial Church, conditions were quite unsettled, and the lack of a resident Episcopate made [4/5] actual adherence to the proper method of institution difficult. To admit this however is not to deny that the Bishop is the sole source of pastoral jurisdiction. Institution does not have the nature of an opus operatum and therefore, all that is necessary is that an intention to do it, or even an acquiescence in its having been done, be evidenced in some way; for whenever there is but one authority from which a certain permission may derive, the spectacle of persons acting upon that permission is evidence either that their action is agreeable to him or that he is ignorant of it, and the latter was not true in the colonial church.
Objection 3: Since this canon gives the right to secure temporary supply for the vacant cure chiefly to the Vestry and only gives it to the Bishop in the event of their failure to act, it may be concluded that the bestowal of jurisdiction is in their hands first of all, and belongs to the Bishop only secondarily, if at all.
Response: The fact is to be conceded with regard to this Canon, but it is to be noted that at least ten dioceses in the American Church expressly provide that the temporary supply of a vacant cure is to be in the hands of the Bishop exclusively. [The Dioceses of Central New York (Canon 21); Chicago (Canon 25); Kentucky (Canon 25); Los Angeles (Canon 12); Mississippi (Canon 30); Missouri (Canon 16); New Jersey (Canon 15); Northern Indiana (Canon 2); Oregon (Canon 45); Pittsburgh (Canon 21); Sacramento (Canon 15).]
The conclusion is to be denied however, on the grounds that even when the Vestry has the privilege of securing temporary supply they are still under the Bishop's jurisdiction and are not in the position of bestowing license by their own right: Canon 45 Sec. 6 stipulates that no clergyman may officiate for more than two months in a diocese other than his own without a license from the Ecclesiastical Authority of that Diocese, and moreover it is a principle of Church Order that every officiating clergyman have general license from the Bishop. The canon just cited deals with the case of one not canonically resident in a particular diocese; a Clergyman already resident has general license by the very fact of his residence, for that was established either by Episcopal acceptance of Letters Dimissory or by the "Take thou authority ...." at his ordination in that Diocese (see above). The wardens of a vacant parish may call any such Priest to supply the services. It is to be noted however that they may not call a Priest who has lost that general license, that is, one deposed or suspended. In every case then, only a Priest with license from the Bishop may be called to supply, and therefore it seems clear that in the eyes of the canon law, the Bishop is the ultimate source of pastoral jurisdiction.
Finally, it ought to be pointed out that the formularies of the Church make it impossible to maintain that any lay body could be the source of ministerial jurisdiction. The Book of Common Prayer insists that the ministry is Apostolic and that its jurisdiction comes to it [5/6] not by delegation from the laity, but by succession to those Apostles to whom the Lord first gave the great commission, "Go ye into all the world." We pray (BCP, p. 572) for "the Ministers of Apostolic Succession", and we are told (BCP, p. 529) that ". . . . from the Apostles' time there have been these orders of Ministers in Christ's Church: Bishops, Priests, and Deacons." ". . . no man shall be accounted or taken to be a lawful Bishop, Priest or Deacon in this Church, or suffered to execute any of the said Functions, except he be called, tried, examined, and admitted thereunto, according to the form hereafter following, or hath had Episcopal Consecration or Ordination."
Therefore, it is in the Apostolic Ministry, and not in the laity that the Christ-given responsibility for the shepherding of souls lies, and consequently it is in the "Bishops, the Pastors of the Church"—"Ministers of Apostolic Succession"—that the fulness of pastoral jurisdiction resides.
Section Two
No election of a Rector shall be had until the name of the Clergyman whom it is proposed to elect has been made known to the Bishop, if there be one, and sufficient time, not exceeding thirty days, has been given to him to communicate with the Vestry thereon.
QUESTION: If the Bishop's communication with the Vestry expresses disapprobation of the clergyman proposed may the Vestry nonetheless proceed to elect him rector?
ANSWER: The Canons of the Diocese of Southern Ohio and Northern Michigan expressly say that they may, and the Canon of the Diocese of California provides that they may if they elect him unanimously. It is hard to see however, how this sort of thing can be consonant with any reasonable interpretation of the thirty day period, provided both by the National Canon and the Canons of these Dioceses. The setting of such a time limit generally means that real power to reject is intended, since the chief purpose of a delimited time is to prevent a failure to reply from being construed as an adverse reply. It makes it necessary for the Bishop actually to say "No" if he means no, and by thus setting limits around his right to disapprove, clearly implies that that right exists, and that when it is exercised under the stipulated conditions it is binding. Therefore it would seem that if the Bishop disapproves the Vestry may not lawfully proceed to elect.
QUESTION: Does the fact that section two requires the proposal of a clergyman before election provide any principle whereby it might be extended to require or permit the Bishop to nominate Priests to the Vestry, after conference with them, provided always that the ultimate decision as to whether to elect be left in the Vestry's hands?
[7] ANSWER: It would seem that it does. The essential thing the Bishop does for a Rector with regard to a cure is to bestow jurisdiction on him, and that can only occur after he is elected, that is, under Section 3 of the present canon. His action under Section 2 is of another sort. It is already a "conference procedure", the Bishop communicating with the Vestry before they actually elect and present a rector, and hence a principle is provided for the extension of the canon to include such specifically.
It is to be noted that at least 22 Dioceses and Missionary Districts in the American Church expressly provide for such procedure in one form or another, and none, so far as known, forbid it. [The Diocese and Missionary Districts of Arizona (Canon 6); Central New York (Canon 21); Delaware (Canon 13); Eastern Oregon (Canon 8); Fond du Lac (Canon 63); Georgia (Canon 22); Idaho (Canon 6); Indianapolis (Canon 13); Iowa (Canon 29); Los Angeles (Canon 12); Michigan (Canon 8); Mississippi (Canon 30); Nevada (Canon 6); North Carolina (Canon 23); Northern Indiana (Title 3, Canon 2); Olympia (Canon 7); Quincy (Title 2, Canon 3); Salina (Canon 6); South Dakota (Canon 16); Spokane (Canon 8); Utah (Canon 6); Western Michigan (Canon 12).]
QUESTION: If such "conference procedure" be included in the Canon could it rightly go so far as to allow the Bishop to say "A. B. and C. are acceptable to me, but D. is not. Therefore he shall not be elected"?
ANSWER: It would seem that the present Section 2 already says this and that this question is but another form of the first question above.
QUESTION: Could this "conference procedure" be extended to require the Vestry to elect only from among the Bishop's nominees?
ANSWER: At least three Dioceses (Mississippi, Delaware and Fond du Lac) expressly provide for this, but in every case the Vestry may reject any name proposed, and the Bishop must continue to nominate until a selection has been made. The Vestry is thus left free to refuse whom they will and consequently this extension of the "conference procedure" seems permissible.
QUESTION: Could this "conference procedure" be extended to permit the Bishop to nominate only one Priest, and to require the Vestry to elect him?
ANSWER: It would seem not, at least as a general rule. Canon 12 of the Diocese of Los Angeles expressly provides for it, and the Canons of North Texas and Western Michigan come rather close to it. But in each of these cases the provision is a penalty for failure to fill a cure, and not the normal way of electing a Rector. Certain livings in the Church of England are of the Bishop's own collation, but they do not constitute evidence, because in collating a benefice the Bishop does not act as Bishop but as Patron of the living. As a penalty therefore, forced election is probably allowable, but not as the Church's normal procedure. There are two agents in the filling of a vacant cure, the Bishop and the Vestry. Each has his rights, and the Vestry's freedom to elect may normally be impeded only negatively ("D. is not acceptable"). It may be impeded positively ("You shall elect F.") only when the right to that freedom has already been forfeited by failure to fill the cure after a reasonable space of time.
OBJECTIONS
Objection 1: The period of thirty days provided in this Section is a survival of legislation necessary only before the days of rapid communication. Its purpose is to insure that the Bishop learns whom the Vestry propose to elect before they elect him.
Response: This is fallacious, since by the very wording of the Canon, the thirty days are provided to give the Bishop time to "communicate with the vestry" on the proposal they have sent to him, that is, provided in the expectation that he will act, and not merely to give him information.
Objection 2: All pastoral jurisdiction derives from the Bishop as the source of the Apostolic Ministry. Consequently no other agent, and specifically no Vestry, should have any part in the filling of vacant cures.
Response: There are two distinct acts involved in settling a Priest in a cure. One of these is the specifically Apostolic act of institution performed by the Bishop. The other is the act of induction into the living with "all the accustomed temporalities" appertaining to it. This latter act is not by nature Apostolic and therefore, though the former must always be done on the Bishop's authority explicitly or tacitly given, the latter may be performed either by the Bishop or (Paragraph 3 of the Letter of Institution is optional) by the Vestry, as holding title to the temporalities of the cure. As long as the Vestry's part in filling the cure is derived from this holding of title, they are perfectly within their rights and usurp no purely Apostolic privilege. By their election a Priest is given jus ad rem, (they act in the premises and give the Priest a right to them); by the Bishop's acceptance and institution of him, he is given jus in re, (the Bishop acts upon the premises and gives a Priest authority in them); and finally by either the Vestry's or the Bishop's induction of him into the temporalities, the Priest is given actual possession; so the filling of the cure is accomplished and no rights are trespassed.
Section Three
Written notice of the election, signed by the Churchwardens, shall be sent to the Ecclesiastical Authority of the Diocese. If the Ecclesiastical Authority be satisfied that the person so chosen is a duly qualified Minister, and that he has accepted the office, the notice shall be sent to the Secretary of the Convention, who shall record it. And such record shall be sufficient evidence of the relation between the Minister and the Parish.
QUESTION: Is not the whole purpose of this section merely to provide record of an election by the Vestry in the books of the Secretary of the Convention?
ANSWER: It hardly seems likely in view of the following:
[9] The first rubric of the Office of Institution parallels the language of this section, but with a very significant difference. After listing, in substance, the conditions stipulated by the first five lines of this section, it states that the fulfilling of those conditions constitutes permission for the Bishop to institute, that is, to bestow jurisdiction for the cure in question. (BCP, p. 569): "The Bishop having received due Notice of the Election of a Minister into a Parish or Church, as prescribed by Canon, and being satisfied that the Person chosen is a qualified Minister of this Church, may proceed to institute him into the Parish." In other words the sending of notice to the Secretary of Convention and the bestowal of jurisdiction on the Minister are natural consequences of the same Episcopal act (namely, receiving the Instrument of Presentation and satisfying himself that the person so chosen is a duly qualified minister). Furthermore, of these two consequences one is essential to the proper ministry of the Priest (he must have jurisdiction appropriate to his office) but the other is not (record of his election in the proper books is hardly a condition sine qua non). However, since it is easier to send record to the Secretary than it is to institute, and, since historically actual institution has many times been postponed or omitted, and since only the intention to institute need be signified (see above p. 4 and 5) the sending of the letter of presentation to the Secretary of the Convention has been made the canonical token of the Bishop's willingness to grant jurisdiction for the cure.
It would seem therefore that the essential purpose of this section is indeed to provide record; but record both of the Vestry's action in electing and more important, of the Bishop's action in ratifying that election by granting jurisdiction. Such a provision definitely implies that without his ratification the priest could not be settled in the cure; and that implication holds no matter what construction be placed on the phrase "duly qualified".
QUESTION: What is the meaning of "duly qualified"?
ANSWER: a. That it simply means "ordained" seems patently false. Why use so broad a phrase if so little is meant?
b. That it merely means "ordained and in good standing" is equally untenable, for it is quite impossible to maintain that the bare facts of ordination and good standing are the only ones to be considered in the selection of a Rector. Any Vestry, for example, would be quick to insist that experience, personality, and a host of other factors have much to do with their decision as to which of the Church's many canonically qualified clergy is duly qualified for his particular parish. It is therefore hard to see how the canon law could be so construed as to leave the Bishop less discretion in bestowing jurisdiction on a Rector than a Vestry enjoys in electing one, when as a matter of fact it is he, and not they, who has the final responsibility for the cure of souls. Moreover the Bishop, by his very position, is likely to be better informed of the Clergy's general qualifications than a Vestry could ever be, and [9/10] consequently a narrow reading of the phrase "duly qualified" in this Section would serve only to fetter the Bishop's judgment precisely where its free exercise might do the Church the most good.
It is interesting to note in support of this that in other instances of the bestowal of jurisdiction, the canon law imposes on the bestower no such artificial restriction of judgment as is implied in the narrow construction of "duly qualified". For example, under Canon 45, Sec. 4(a), a Rector, within his own jurisdiction, or even a Churchwarden, in a vacant parish, may refuse any Priest permission to minister for any reason he sees fit. Moreover, under the same Canon, a Rector may refuse the election of an assistant for any reason whatsoever. It stands to reason therefore, that if other Canons do not place restrictions on the judgment of those who exercise subordinate jurisdiction, this Canon can hardly be construed to impose them on the Bishop who as Chief Pastor is the source of all jurisdiction in the Church.
Finally, there is evidence in the records of General Convention itself which weighs heavily against the narrow reading of "duly qualified". In the year 1925 a motion was introduced into the House of Deputies to amend Section 3 of what is now Canon 47 by changing "duly qualified" to "canonically qualified". The motion was lost—an action significant enough in itself, but rendered even more significant by the circumstances, for it occurred just after the New York State courts had sanctioned the broad interpretation of "duly qualified" in their decisions on the case of Fiske vs. Beaty. It would seem therefore that the Convention of 1925 is at least chargeable with knowledge of those decisions and that its action constitutes an explicit rejection of the narrow construction of the phrase in question.
c. What seems the most likely interpretation then is that "duly qualified" means not only ordained and in good standing, but also qualified for the particular cure under consideration. This view is supported not only by what was said above in objection to the narrow construction of the phrase, but also by the fact that the license given at ordination is only general, and that no Priest may be Rector of a particular parish without a particular bestowal of jurisdiction. In view of the fact then that the Bishop must bestow his jurisdiction for a certain specific cure, it is not possible to exclude from his judgment considerations about the fitness of individual Priests for that cure, .and therefore no merely general interpretation of "duly qualified" will do.
QUESTION: Does a Bishop then have a right to disallow the election of a Rector, that is, to evidence his unwillingness to bestow jurisdiction by refusing to transmit the Instrument of Presentation to the Secretary of the Convention?
ANSWER: On the basis of the interpretation here given to this Canon he does. The jurisdiction that a Bishop grants when he gives license to a Priest is his own, and the bestowal of it must remain subject to his [10/11] judgment. Beside the fact that this is the interpretation given by the civil courts in the case of Fiske vs. Beaty, it is to be noted that the Canons of thirteen Diocese and Missionary Districts specifically state that no election is complete without the Bishop's approval. [The Diocese and Missionary Districts of Arizona (Canon 6); Colorado (Canon 11); Eastern Oregon (Canon 6); Idaho (Canon 6); Missouri (Canon 16); Nevada (Canon 6); North Carolina (Canon 23); North Texas (Canon 17); Sacramento (Canon 15); Salina (Canon 6); South Dakota (Canon 16); Spokane (Canon 8); Utah (Canon 6).]
QUESTION: If the interpretation here given is correct, the Bishop has two opportunities to pass judgment on a Priest's suitability for a cure; one before election, under Section 2; and one after; under Section 3. Why?
ANSWER: Essentially, these two opportunities are parts of the same act. Under Section 2 the Bishop gives his consent to elect (a wise, but not absolutely essential provision); under Section 3 however, he indicates his willingness to bestow jurisdiction (a provision not only wise but also essential to the Apostolic character of the Church). It is his action under Section 3 which admits a Priest to or excludes him from a cure, and it is therefore that action which is the weightier of the two. The only conceivable conflict between the two judgments would arise if a Bishop refused, on the basis of new information, to grant jurisdiction to a Priest whose election be explicitly or tacitly approved under Section 2. In that case the decision under Section 3 would be binding.
QUESTION: Would it be proper to enact a Canon which would force the Bishop to institute any Priest on the sole condition that he be ordained and in good standing?
ANSWER: It would not. The basic error in such a Canon would be that it allowed only general considerations to bear on a particular situation thus making the Bishop's judgment quite meaningless and his action purely mechanical. The revision of Canon 47 recently proposed by the Diocese of Massachusetts is guilty of this sort of thing. By invoking the requirements of Canon 45 Sec. 5 (d) (on the acceptance of Letters Dimissory) it says in effect that the Bishop must bestow jurisdiction on any Priest not under presentment, or liable to presentment. Its fallacy is that the acceptance of Letters Dimissory is by no means the same thing as the bestowal of jurisdiction for a particular cure. The former brings the Priest within the borders of his new Diocese so to speak but no further. It does not, like the latter, give him jurisdiction over any particular parish. Said differently, the Canon on Letters Dimissory deals with a Priest only generally, as a Priest; while Canon 47 deals with him particularly, as possible Rector of a certain parish; and hence the requirements of Canon 45 Sec. 5 (d) are inappropriate in the extreme when invoked in connection with the filling of a vacant cure. All that was said above in objection to the narrow construction of "duly qualified" applies here, and it ought to be stressed again that it is utterly impossible to maintain that a Priest is rendered suitable for any cure in the Church merely by being ordained and in good standing.
[12] QUESTION: Does the present Canon 47 need revising?
ANSWER: No. As it now stands it is in perfect harmony with the formularies of the Church. It recognizes that where the Church is truly Episcopal, the Bishop is the living embodiment of that Apostolic office which has been the source of the Church's pastoral ministry from the beginning. Some, lamenting that this treasure has been put in such earthen vessels, as Bishops may be, seem desirous of tying their hands and letting Canonical machinery take the place of living and consecrated judgment. But surely this is a step down instead of up; a step away from what the formularies embody instead of toward it. The Church makes laws not to conform her system to what certain parties would like it to be, but to insure her faithfulness to what she already is. Were that well understood on all sides we would less often imperil the good estate of that true portion of the One, Holy, Catholic and Apostolic Church in which we were born anew, and in whose unfailing care we hope to die.