Supreme Court

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SpragueWBIt was on this day, July 25, in 1860, that the Rev. William Buell Sprague was called upon to address the annual meeting of the alumni of Yale College. A small portion of his rather lengthy address follows. Click here to read the entire address:

What say you of the importance of the Chief Magistracy, or the Supreme Judiciary, of the separate States? Is not each vitally connected with the public weal? If either the reins of government or the scales of justice are not held with an even hand, what else can we expect than that the State will become a scene or restlessness and agitation, if not of open revolt? To be the Governor of a State, or a Judge of the Supreme Court of a State, is to occupy a position from which there goes forth a current of influence that works a channel for itself through every portion of the community. But of Governors, this College has furnished twenty-seven; and of Judges of the Supreme Court, a hundred and six; and on each list I find names now a few, which our common country has long since adopted as her own. As a representative of the latter class, I think of Roger Minot Sherman; and as a representative of both, I think of John Cotton Smith;–two as find spirits, I had almost said, as our fallen humanity can show. Judge Sherman I knew well—he was the friend of my early as well as mature years; and I may be allowed to pause beside his grave long enough to place an humble garland upon it. His mind was a clear as the sun, and as comprehensive and well balanced as it was clear. His heart was fertile in generous feelings, and purposes, which were sure to ripen into acts of substantial beneficence. There was a calm dignity in his manner that bespoke wisdom and thoughtfulness; and his movements seemed to be by rule; but his exactness was so qualified by kindness, and even gentleness, that he won the confidence and love of everybody. He was deeply imbued with the spirit of the Gospel, and you could not find a Christian whose heart would throb more tenderly at the remembrance of his Saviour’s love. He was a great lawyer, and a great judge, but he was a great theologian as well—I remember how ably and impressively he used to expound God’s word to us at the weekly conference, in the absence of his pastor, when it seemed to me that we should scarcely have been gainers if we had had Dr. Dwight in his place. He knew how to guide the minds of the inquiring, to resolve the scruples of the doubting, to encourage the timid and rebuke the wayward, as well as any minister you would meet. His life was a scene of eminent usefulness; and, far beyond the community in which he lived, his name will be held in profound reverence by many generations.

If a College is an acknowledged fountain of vast influence, then surely he who presides over such an institution, has a hand upon the very springs of social and public happiness. He is constantly giving direction to minds that are soon going forth to give direction to the concerns of the Church and the State; and through them he circulates invisibly but most effectively throughout the whole domain of society. No less than forty-two of our alumni have held or are now holding this important office,—to say nothing of the multitude who occupy Professorships and other posts of instruction, many of which bring them in immediate contact with a greater number of youth than even the Presidency itself. Among the earlier Presidents which the college has furnished, are Jonathan Dickinson, Samuel Johnson, Jonathan Edwards, and Aaron Burr,—names which have lost nothing of their freshness by the lapse of a century; and, as we come further down, we find the catalogue illumined with other similar lights of equal brilliancy. Who can begin to measure the influence which this College has exerted merely in training others to take the direction and mould the character of institutions like itself?

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With sincere apologies, I must record a correction. The fact is that the local court case was ruled unanimously in favor of the Hull Memorial and Eastern Heights churches. My thanks to Rev. Todd Allen for his gracious correction.

 

On April 17, 1966, because of extreme liberal trends in their parent church, two Savannah Presbyterian churches, Hull Memorial and Eastern Heights, led by their pastors Clifford Brewton and Todd Allen, voted to sever all ties with the Presbyterian Church U. S. denomination. This Action resulted in the Presbytery attempting to take control of the property, and a court case, settled first by a local jury that ruled unanimously in favor of the two congregations. Rev. Todd Allen comments that:

“Savannah Presbytery then appealed to the Georgia Supreme Court who approved the Jury decision unanimously in favor of the two congregations. The case was then appealed to the United States Supreme Court who remanded the case back to the Georgia Supreme Court giving neutral principles of law for that court to use in adjudicating the case. The Georgia Supreme applied the neutral principle enunciated by the United States Supreme Court and by a  unanimous  decision awarded the two local churches their church properties. The presbytery again appealed to the United States Supreme Court. The Supreme Court declined to hear the case and that ended litigation after 3 ½ years of litigation in January of 1970. It should be noted that all court decisions were unanimous.”

The Savannah court case was an unprecedented, history-making event that overturned nearly 100 years of inequitable law practices in the United States and changed the way the civil courts in the future could deal with church property disputes. The case caused major church denominations to study their administration, relations, and rules relating to their connection with local church congregations. The specific and immediate effect of the case was a means for a somewhat peaceful withdrawal in 1973—with their properties—of some 250 churches from the Presbyterian Church U. S.  The case was a crucial element in the success of the Continuing Church movement that resulted in the formation of the Presbyterian Church in America (PCA).

The significance of the historic event was, at least in that immediate historical context, that no longer could church tribunals exercise property takeover tactics to force compliance to certain disputed doctrines, or for any other reason the denomination may choose: Ended was the practice of stealing church property in the name of organized religion. This case liberated those local churches in the PCUS from denominational tyranny.

The heart of the Supreme Court ruling in the Savannah case was in favor of what are termed neutral principles of law, as opposed to the civil court being guided or even ruled by the doctrines (including bylaws and constitution) of the denomination.

During the time that the property issue continued to be debated and was sent to the Georgia Supreme Court, Pastor Brewton accepted an appointment as an aide to Governor Lester Maddox, resigned the pastorate at Hull Memorial, and moved to Atlanta. Meanwhile Pastor Todd Allen was at the forefront in the property struggle through the Georgia Supreme Court, which ruled for the local churches, and the case then went onward to the U. S. Supreme Court. Allen also was a leader in organizing Vanguard Presbytery in 1972, a new presbytery established for churches withdrawing from the PCUS, thus providing them a Presbytery to join while awaiting the formation of the new denomination.

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Two Cases that Came Before the Supreme Court.

When the Presbyterian Church in America was formed in 1973, most of the churches leaving the old denomination were able to keep their property. Off-hand, I know of only one church that lost its property. Moreover, these churches did not have to pay exit fees. This was a great providence of God in allowing the faster initial growth of the new denomination, and the legal basis for this provision came as a result of the  work of two churches in Georgia. Savannah, GA pastors Clifford Brewton and Todd Allen, together with their respective Sessions and congregations, had the decade before fought the matter through the civil courts, all the way to the Supreme Court, and so paved the way for the 274 churches that would later form the PCA. 

 

WHO OWNS YOUR CHURCH PROPERTY? A JURIST SPEAKS
Reprinted from Contact: Newsletter of the Presbyterian Churchmen United, Number 6 (January 1971)

(NOTE: The following address by Judge Leon F. Hendricks was delivered at a rally sponsored by the Presbyterian Churchmen United, and held at the First Presbyterian Church of Jackson, Mississippi.)

The question is simple. The answer is difficult and complicated.

Before an answer is attempted there are other questions that arise.

Is a congregation of the Presbyterian Church, U. S. in reality the true legal owners of the church property or does it legally belong to Presbytery, Synod, or to the General Assembly of the denomination known as the Presbytenan Church in the United States?

Ultimately, the question is whether a majority of the members of a local Presbytenan church may withdraw from the Presbyterian Church in the United States and take wIth them the title, use and control of the church property.

The United States Supreme Court in the case of Watson vs. Jones, 13 Wall 679, 20 L Ed. 666, decided in the year 1871, classified the questions concerning the right of property held by religious bodies under three headings.

Most of our local Presbyterian churches would fall in the third category, to-wit:

“Where the property is not subject to any expressed trust and is held by a congregation, whose church government is hierarchIal or connectional in nature.”

The Presbyterian Church, U. S. is representative in government. Some of our civil courts have put our Church in the same class as Catholic, Episcopal and Methodist, whose government is hierarchial or connectional in nature. For this reason these civil courts have held that the property of a congregation is subject to an implied trust in favor of the General Church. The Supreme Court of Florida and South Carolina have so held and one or two local congregations in these states lost their property when they withdrew from the General Church.

The Supreme Court of Mississippi has never had before it a case involving a congregatIon of the Presbyterian Church, U.S.

Prior to January 19, 1970 it would have been the opinion of many lawyers:

(1) “That if a Presbyterian Church is incorporated under the laws of Mississippi, as some churches now are, legal ownershIp is in the entity known as the First Presbyterian Church of Jackson, for an example;

(2) “That the legal title is in the Corporation but the Corporation holds title in trust for and on behalf of the Congregation which may be identified in case of division, by the governing body of the Presbyterian Church in the United States. The trust extends to an implied prohibition against diversion to uses not approved by the Presbyterian Church or foreign to its doctrines;

(3) “That ownership is in the Corporation. Control is in the Congregation, but identity is not determined by a majority of the members and the control is limited by and subject to the government of the Presbyterian Church in the United Church in the United States;

(4) “That a majority of the members of the local church cannot withdraw from the Presbyterian Church in the United States and take with the church properties without the consent of the general Church.” In my opinion the Presbytery could give that consent under the provisions of our Book of Church Order.

Now, what happened on January 19, 1970? The two Savannah Presbyterian Churches finally won the legal battle for their local church property. The Supreme Court of the United States refused by a vote to again hear the appeal of Presbyterian Church in the United States against the Savannah churches on the ground that no substantial federal question had been raised by the parent Church’s appeal. By this action the decision of the Supreme Court of Georgia, rendered on April 14, 1969, became final. Thus, The Hull Memorial and the Eastern Heights Churches of Savannah were awarded their property and the legal title was declared to be in the local congregations.

In 1966 two churches withdrew from the Presterian Church, U. S. The Presbytery of Savannah and the general church intervened and attempted to take the property of each of the churches. The trial court of Georgia decided in favor of the local churches and on appeal the Supreme Court of Georgia affrmed. On petition the Supreme Court of the U. S. took jurisdiction and reversed on the grounds that the Georgia Courts decided the controversy on ecclesiastical law which the Civil Courts could not do under the first and fourteenth amendments, and sent the cases back to the Supreme Court of Georgia for further proceeding not inconsistent with the decision of the U. S. Supreme Court. The Supreme Court of Georgia then adopted the “Neutral principle” approach and found the legal title in the local churches and awarded them their respective properties. So this ended the matter.

Hence, it is the judgment of many that in any future case involving local property of a congregation in the Presbyterian Church in the United States, a State Civil Court cannot apply the implied trust theory. This would violate the decision in the Savannah cases, and also the holding in the Maryland Church of God case.

This conclusion is reached because there is no ecclesistical law in the Presbyterian Church, U. S., which binds the local church property to any superior tribunal. Our Book of Church Order gives the control of local church property to the local congregation. It can buy, sell and mortgage such property. The only case where a superior ecclesiastical tribunal has anything to do with local church property is when a church ceases to exist and no disposition has been made of its property. Then and only then the property shall be transferred to The Presbytery. This has always been the historic position of The Presbyterian Church, U. S. This position may now be enforced in a civil court.

It is hoped and believed that the other states, as Georgia did, will adopt the “Neutral principles of law” approach; which means legal and equitable principles of ownership are studied and applied to a factual sItuation, such as, Where is the title vested? Who paid for the property? Who has the use and control since the church was built? Who controls the membership? Who has the authority to buy, sell or mortgage the property?

The State Courts will find that for most local Presbyterian Churches the answer will be the local congregations.

The State Courts may also now consider special state statutes govern:ng church property. We have a good one in Mississippi. which is Section 5350 of the Code of 1942.

When a church is organized under it the section provides that the church “shall be a distinct and independent society” and that its property “shall not be divested out of the same, or encumbered, except by a deed, deed of trust, or mortgage, duly executed under the authority of a resolution adopted by a majority vote of the members present at a meeting duly called by that purpose, at which meeting at least twenty percent (20%) of the members in good standing of such organized society must be present.” If your church is not incorporated under the provisions of that section I suggest that it be done. The procedure is simple.

Who Owns Your Church Property? At this time, it is my opinion that the local congregation does. The General Church recognizes this. Because it intervened in the Savannah cases, and one or two overtures were offered at the Memphis, 1970, General Assembly to change the Book of Church Order as to property so as to give control to The Presbytery. Thus our Higher Court realizes the force of the Georgia cases and the Maryland case. Careful watch will have to be made of the aforesaid overtures.

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A Man of His Word.

Isaac G. Burnet was born in Newark, New Jersey, on July 17, 1784.  He was the son of Dr. William. Burnet, of Newark, New Jersey, who was Surgeon-general in the Army of the Revolution. Isaac prepared for his life’s work with education at the College of New Jersey, and after studying law, moved to Cincinnati, Ohio in 1804. After working in his brother Jacob’s law office for a time, Isaac was admitted to the Ohio bar. With gainful employment in hand, he turned his mind to other matters and was married to Kitty Gordon, daughter of Captain George Gordon, on October 8, 1807. The young couple soon relocated to Dayton, Ohio, where Isaac worked in earnest at developing his legal practice. Then in 1816, he moved his family back to Cincinnati, partnering there with Nicholas Longworth. His connections and abilities led in turn to his being elected mayor of Cincinnati in 1819. Burnet was re-elected to this office five times, holding the office until 1831, at which time he decided not to stand for re-election.

Prior to his retirement from that office, Burnet had become one of the owners of The Cincinnati Gazette, in 1817. His interest in that firm did not last long, but for many years he continued to write, both for the secular and the religious press. In 1833 he was appointed Clerk of the Supreme Court of Hamilton County, and he continued to hold that office until the Supreme Court upon the circuit was superseded by the District Court, under the constitution of 1851.

Apparently Isaac Burnet made his public profession of faith somewhat later in life, since he was baptized by the Rev. John Boyd, pastor of the Enon Baptist Church, in Cincinnati, sometime around 1826. Then in about 1831 or 1832, he became a member of the Second Presbyterian Church of Cincinnati. In 1834, Judge Burnet was elected to serve as a ruling elder in this church, and he remained active in this office for almost twenty years.

Two years before his death, he moved to Walnut Hills, Ohio and joined the Lane Seminary Church, and was immediately elected to serve there as an elder. He died on March 11, 1856.

Judge Burnet was eminently exemplary as a Christian, and faithful as an officer of the Church. He was a man of great decision and earnestness. During the time that he was mayor of Cincinnati, he stood alone against a mob “in the flush of their riotous and revengeful triumph” and with a few short words, brought them to their senses. In a similar way, in all his dealings within the Church, no one who ever came into contact with him ever doubted where he stood on a matter. He died as he lived. For years, he had suffered from a mounting disease, but looking to the Lord, had no fear of death, for Christ had already given him the victory.

Words to Live By:
But above all, my brethren, do not swear, either by heaven or by earth or with any other oath; but [a]your yes is to be yes, and your no, no, so that you may not fall under judgment.”—(James 5:12, NASB)

“Stand to your word, and be true to it, so as to give no occasion for your being suspected of falsehood; and then you will be kept from the condemnation of backing what you say or promise by rash oaths, and from profaning the name of God to justify yourselves. It is being suspected of falsehood that leads men to swearing. Let it be known that you keep to truth, and are firm to your word, and by this means you will find there is no need to swear to what you say.”–Matthew Henry.

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