Lay Participation in Church Governance

by Duane L.C.M. Galles, J.D., J.C.L.

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[Editor's Note: According to the law now in force (canon 129, sect;1), bishops, priests and deacons are capable of the power of governance, which is also called the power of jurisdiction. Paragraph 2 of the same canon states: "Lay members of Christ's faithful can cooperate in the exercise of this same power in accordance with the law."

Christ did not erect His Church as a democracy. Those who exercise the ministry of governance are not accountable to those they govern. In this day, especially following the eruption of the sexual abuse scandal in 2002, there are voices from within and without demanding that the Church remake herself in the image of the representative structures of secular governments. We believe that such changes are contrary to the will of Christ and are thus unacceptable.

This is not to say that the principles of collaboration and consultation must never apply to the exercise of governance in the Church. They have been recognized in the past and it can be argued that they should receive more emphasis now. The following article provides some historical examples and proposes one way in which collaboration and consultation might be exercised without compromising the hierarchic constitution of the Church.]

Christ's faithful have the right, under canon 212, to make known to sacred pastors their views on matters that concern the good of the Church and to make those views known to others of Christ's Faithful. The clergy sex abuse crisis and the Dallas Norms to deal with it have given prominence to lay advisory boards, which were created under the Dallas Norms to provide advice and, more importantly, to provide assurance that credible allegations were in fact investigated. As it happened, relations between ordinaries and these lay boards were not always pacific and serene. For most American lay Catholics the new relationship was quite a novelty. Unlike their Protestant brethren, lay Catholics seldom were used to giving their opinion to their ordinary and they were even less used to being asked to give it.

In large part this inexperience was a result of the "Trusteeism" problem of the nineteenth century. In addition to the management of the temporalities, in many parishes lay trustees took upon themselves the right to appoint and dismiss clergy. This led to acrimonious disputes between clergy and laity. These controversies were sometimes prolonged and at times they led to the infliction of censures and to prolix and unseemly lawsuits in the civil courts. In some cases schism was even courted. In the end the clergy secured control over Catholic Church property and bishops secured a fairly free hand in the appointment and discipline of the clergy but the bitter controversy left a legacy of suspicion.

In part the Trustee controversy was a result of the misapplication of some traditional canonical institutes like the vestry and the ius patronatus or right of presentation. In part it was a result of bishops' refusal creatively to adapt these canonical institutes, borne in the age of feudalism, to the new and democratic age that was coming to life in the nineteenth century. It is one of the curiosities of American Catholic history that French-born American bishops, who had lived serenely with ancient canonical rights when exercised by the local squire in the manor house in France, now took exception when these rights were claimed by American bourgeois Catholics. The French squire might have been patron of the local church and enjoyed the right of presenting to the local church some suitable cleric when the benefice became vacant. If the presentation was timely made — usually within six months — and the bishop could not show the cleric to be unsuitable, the canons then required the bishop to induct and institute the cleric presented to the benefice. Once instituted, the cleric enjoyed a canonical right to the benefice and he could only be removed by resignation, death, or judicial privation. Once he had presented a cleric to the living, the squire enjoyed no power to remove the cleric once instituted. He had to await the next vacancy when he or his heir might again present a suitable cleric to the vacant benefice. To promote evangelization medieval canon law had granted this privilege to anyone who built or endowed a local church. The right of presentation was, accordingly, quite widespread with the result that by the eighteenth century many French bishops could freely appoint only a small percentage of the clergy of their diocese.

Besides the ius patronatus, canon law also had created the vestry, the marguilliers in French. This was a body of laymen who administered the temporalities of the parish. This canonical institute was entirely distinct from the right of patronage, but there was no reason in principle why a vestry that enjoyed juridical personality could not acquire and enjoy a right of presentation. Indeed, under the canon law inherited from the Middle Ages one John Clark, a notable of the parish of Colyton, Devonshire, England, and twenty-three other parishioners were in 1544 constituted a body of feoffees and acquired the right of presentation to the local parish church. They have continued to exercise it down to our own time.

The problem in America came when one tried to transport these ancient canonical institutes to the democratic atmosphere of nineteenth-century America. Boards of lay trustees obtained civil incorporation and began to build Catholic churches in their locale. Some trustees, not unnaturally, thought that the canon law applicable in Europe was also applicable in the United States and that these boards should now enjoy the right of presentation. Some bishops, like John Carroll, replied that the boards had not only to build the church but also to endow it and its clergyman's benefice in order to obtain the right of presentation. He was probably wrong in this, but the canon law of temporal goods was subject to local variation in Europe. The upshot was that in 1829 the first Provincial Council of Baltimore declared that the right of patronage, which had been exercised in New Orleans for a century, did not exist in the United States.

There was a related problem as well. The same canon law which provided for the rights of presentation required as a material requisite for a parish that there be a benefice suitably endowed for the support of the priest who would occupy it. Typically the endowment was either in land or tithes but the cleric had to be given a legal right to some suitable income in order for a canonical parish to be erected. When there was a canonical parish, then, there was a benefice, and once a cleric had been legitimately instituted to a benefice, he was irremovable, absent judicial privation. When there was no benefice, there was no canonical parish. Instead there was merely a mission church with a rector removable at the whim of the ordinary. Until 1918 when the new Code of Canon Law determined that the free-will offerings of the faithful could suffice for the suitable endowment of a benefice (c. 1410), American bishops generally held that most American Catholic churches were merely missions and not canonical parishes and thus the incumbent priest was removable at the will of the bishop. The matter is further complicated because in the course of the nineteenth century the Holy See had introduced a new administrative procedure for the removal for cause of parish priests. Clearly, the Trustee Controversy had important consequences for American priests as well as the laity. Without a benefice there was no parish and without parochial status there was for priests no security of tenure.

American priests also lacked any voice in the administration of the diocese. In Europe bishops were assisted in the government of their diocese by a chapter of cathedral canons. These canons formed a body of resident clergy at the cathedral to provide the more solemn liturgical functions that like the capitular Mass and the choral Liturgy of the Hours. The canons, each of whom held a benefice called a canonry, also served as resident advisors to the bishop. On more important matters in fact he was required to ask their advice. Usually the law did not require the bishop to follow their advice, but he had to ask before acting. Since the canons in practice held their posts for life and their number was in practice fixed, they usually formed a stable and knowledgeable group of advisors, and, to the extent that knowledge is power, a powerful group as well.

Besides offering advice, the cathedral canons performed other functions. Canon law took a dim view of the alienation of church property. From Early Christian times the sacred canons regarded church property as a sort of trust, a permanent fund or endowment with the income apportioned one quarter each to the bishop, the clergy, the maintenance of the church fabric, and the support of the poor. To insure that the endowment remained intact canon law forbade the alienation or encumbering for long periods of any church property without the consent of the majority of the cathedral canons. Thus, a majority of the canons could block any alienation they deemed unsuitable. This medieval canon law is the source of the United States Senate's power "to advise and consent."

But in the United States, except for a chapter of two canons in New Orleans which quickly passed into desuetude, there were no chapters of canons. Instead the American bishops gradually developed a pale substitute for canons, a body of at least six consultors who were appointed for a short three-year term and, in any case, were removable for a just cause by the bishop on advice of the other consultors (1917 Code cc. 426, 428). The upshot was that while American Catholic priests were fully engaged in the pastoral ministry, they had only the merest share in the governance of the diocese — because these well-developed norms in places elsewhere in the Latin Church were not applicable in the United States.

John England was born in Cork, Ireland on September 23, 1786, and died in Charleston, South Carolina on April 11, 1842. This son of Thomas England and his wife Honora Lordon received his early education in Cork and then was apprenticed to a barrister. In 1802, however, he entered Saint Patrick's College in Carlow to study for the priesthood and, by dispensation, was ordained in 1808 at Saint Mary's Cathedral, Cork. He served in the parish ministry, as supervisor of Catholic schools, and as president of the Cork's Saint Mary's Seminary. Then on June 18, 1820, the Diocese of Charleston, comprising the states of North Carolina, South Carolina, and Georgia, was erected and within a fortnight John England was appointed its first bishop.

There had been a protracted Trustee Controversy in Charleston and it was to remedy it that the Holy See determined to detach the area from the Archdiocese of Baltimore and place a bishop on the spot. As his own measure to deal with this problem Bishop England in 1823 published his "Constitution of the Diocese of Charleston." This document, which in many ways resembled the various constitutional charters being granted by the more liberal monarchs of the day, was labeled in the pejorative as "democratic" by his metropolitan and his innovation was seen as radical by most of his co-provincials. Bishop Conwell of Philadelphia, in fact, announced that, if extended to other American dioceses, England's Constitution "would mean the quick collapse of the American Church." In fact, Bishop England's Constitution never spread beyond the confines of his diocese and after his death his successor there let it die a quiet death.

It was, however, a remarkable document. It clearly set forth that ecclesiastical discipline was the exclusive prerogative of the bishop and stated expressly that Christ gave to civil governments no authority over spiritual or ecclesiastical concerns. Nevertheless, it admitted that maladministration of church property had been a chief cause of Trusteeism and it resolved to avoid that problem in the future by making structural provision for the participation by clergy and laity in the administration of the temporalities of the Charleston particular church. The Constitution in a rather forward-looking way (cf. c. 1274) set up a general fund for the support of the Church within the diocese, which fund was then civilly incorporated, and authority to expend moneys of the fund was made the exclusive power of the General Convention of the Diocese.

Rather like the organs of the Episcopal Church, this General Convention consisted of three houses, the Bishop, the House of the Clergy, and the House of the Laity. The House of the Clergy was comprised of the clergy of the diocese and was presided over by the priest of the diocese senior in dignity. The House of the Laity was composed of delegates based on the Catholic population of the various districts and these chose their own presiding officer. Expressly, General Convention had no authority of doctrine, ritual, sacraments, clergy appointments or discipline. Rather it was to be considered "a body of sage, prudent, and religious counselors to aid the proper ecclesiastical governor of the church in the discharge of his duty." The General Convention, like the Synod of Bishops today, might be summoned in ordinary general assembly and so cover the entire diocese. Alternatively, it might meet as a special assembly for a particular region (c. 346). In fact during the two decades of its existence it met in three ordinary general sessions fifteen special session for the district of South Carolina, two special sessions for the district of North Carolina and eight special sessions for the district of Georgia.

While the structure of Bishop England's General Convention looks rather more Episcopalian than Roman Catholic, a similar body could be established today under the 1983 Code of Canon Law of the Latin Church. We will show this by a quick look at the canons on the council of priests and the pastoral council. Canon 495 provides that each diocese is to have a council of priests, often called a presbyteral council in the United States. Its constitution is to be laid down in its statutes or bylaws and its purpose is to serve as a senate of priests to assist the bishop in the governance of the diocese. Half of its membership is to be elected by the priests of the diocese, but some priests might be members ex officio and the bishop is also free to appoint members himself. The purpose of these ex officio and appointed categories is to ensure that the diversity of ministries in the diocese is adequately represented. The diocesan bishop convenes and presides over the council of priests (it seems he may preside by deputy, e.g., through his vicar general) and the council has only a consultative vote, which is to say that having heard its opinion, the bishop is not required to follow it. However, canon 127, §2, 2° does lay down that, while he is not bound to take the advice given, he should not act contrary to it unless in his judgment there are overriding reasons for doing so — especially if the vote has been a unanimous one. In some cases, set forth in the Code, he does need to hear the council of priests in order to proceed, e.g., before establishing or suppressing a parish (c. 515), before authorizing the building of a new church (c. 1215), before giving a church over to a profane but not sordid use (c. 222), or before levying a diocesan tax (c. 1263). The council, however, is not an independent legislator and can never act without the bishop. It ceases to exist when the see become vacant. In civil, political terms it resembles the Great Council of the Realm convened by medieval English monarchs: A feudal ruler was required by custom to take counsel with his greater vassals and they were required by the same custom to give it. Until 1837 the death of the monarch effected a dissolution of Parliament.

Operating rather like the monarch's privy (or inner) council is the college of consultors. Under canon 502 it is constituted by the bishop for a five-year term from among members of the council of priests and it provides a body of six to twelve privy councilors whose advice he often must seek and the consent of which he must sometimes secure in order to effect certain juridical acts, especially in the realm of church property (c. 1292). The bishop presides over it and during the vacancy of the see it continues its existence and, where there is no auxiliary bishop, it selects the diocesan administrator. In practice the college of consultors, now given a fixed term of existence, has succeeded to the powers once held by the chapter of cathedral canons.

A body similar to Bishop England's House of the Laity could be constituted under canons 511-514 on pastoral councils. This body is optional for the diocesan bishop. Where it exists, it functions, under the authority of the bishop and with only a consultative vote, to study matters concerning the pastoral works of the diocese. It is to be composed of clerics, those of consecrated life, and especially lay people chosen for a determined period as set forth in its statutes. The bishop convenes it, presides over it in person or by deputy, and determines when and whether its proceedings are to be made public. Since deacons have no role in the council of priests, it is in the pastoral council that they may be heard through delegates. Those in consecrated life — members of religious and secular institutes, hermits and consecrated virgins — may also be given voice and vote here. But the law envisions the pastoral council as especially a forum for lay — here meaning those not clerics or in consecrated life — opinion.

It is here that Christ's lay faithful may especially exercise their right, under canon 212, to make known to sacred pastors their views on matters that concern the good of the Church and to make those views known to others of Christ's Faithful. It is here that, by reason of their baptism, they may participate in the priestly, prophetic and kingly office of Christ and exercise the mission which God entrusted to the Church to fulfill in the world (c. 204), evidence their communion with the Church and carry out their responsibilities to the Church (c. 209), promote the growth and sanctification of the Church (c. 210), strive to bring the Gospel message to more and more people (c. 211), promote and support apostolic action (c. 216), and give witness to Christ and defend the faith (c. 879).

©2005, Duane L.C.M. Galles

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