June 28, 2007

Property 1570 1610 1789 1806 2007

I received an e-mail in response to my article on the property dispute challenging it on two points. The writer suggested that in the colonial era, when churches were all under the authority of the Bishop of London — much to the satisfaction of those who like to “bless and keep the bishop... far away from us!” — it was hardly likely that there was any idea that church property was anything other than freely disposable. He also suggested that if the Bishop of London had an interest in the property, its transfer into American hands must have been irregular.

Actually, the rules on implied trust and alienation of church property go back to an English statute of 1570. We are dealing with an established church, and the state had an interest in the proper use of church property for the state church. I imagine that colonial churchmen observed all such statutes on alienation of church property scrupulously.

After the Revolution, the Episcopal Church became “necessarily” independent of English jurisdiction, “civil” and “ecclesiastical.” (Preface to the Book of Common Prayer, 1789, and enacting clause of the first Constitution of the Episcopal Church). However, as the Episcopal Church was considered to be a self-governing extension of the Church of England, the authority to limit alienation passed to the appropriate bodies, in accord with custom, until the formal enactment of a canon to that effect, apparently in 1806. (I’m unable to verify this detail as I don’t have a copy of the Constitution and Canons from that period handy. White and Dykman refer to “the old Canon 59” on parish vestries.)

Interestingly enough, such limitations remain (to this day) a matter of civil law in many places where the English statute of 1570 had been adapted (New York is an example). From the foundation on, no church could alienate property without permission of the legislature (or later the chancellor, and now the Supreme Court of the State of New York). In New York, even a 6-year lease requires such approval, to say nothing of permanent alienation through sale. The state’s interest is not proprietary, but directed towards the good order of a society that, like itself, is intended to survive a particular generation’s whims.

All of this prevented what we now see happening: a disaffected membership of a congregation gaining ascendancy and seeking to remove real property from the use of the “general” church.

Tobias Haller BSG

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