The Trojan Canon

Over at the Big Hollywood blog (linked at the right, under "Cannon Fodder"), film producer Leigh Scott has put up a post entitled "Debating Leftists Is Like Debating Charles Manson." (Now, how is that for a title to provoke controversy and backlash?) He makes his central point in this way:

Debating leftists is like debating Charles Manson. It’s crazy talk. When you debate a leftist you never get to debate the policy. You debate their intended outcomes and their perception of who you are.

I have reluctantly come to the same conclusion -- well, not that it's the same as debating Charles Manson, but that it is crazy-making, for precisely the reasons Mr. Scott cites. Once cannot logically debate anything with those on the left, because they are immune to logic and its capacity to convince, or even persuade. They are not interested in following Step A to Step B to Step C and so on to see if one can get to Outcome (Conclusion) X. No, for them, if they react emotionally to it, then Outcome X is a foregone conclusion, and they simply go right to it, never mind how they get there. Recent decisions such as those by the trial courts in San Joaquin and Pittsburgh give them no trouble at all, because the results (outcomes) are right in their view: "You have to turn over the property, you orthodites [or radicals, or homophobes -- or insert some other but equally pejorative term], because it's ours, not yours!"

And when they say the property is theirs, of course, they mean it belongs to the Diocese and to the Episcopal Church (USA). And just how did it come to be the property of those entities, who never paid a dime for it, or for its upkeep? Here is what passes for an explanation among those on the left:

Here's a link to the press release from the St. James (Anglican) press release about this week's Supreme Court decision refusing to hear the suit of the Schismo-palians against the Diocese of Los Angeles. It includes their determination to keep on keepin' on by continuing to litigate, with the "spin:" In our diverse and freedom-loving land, no one should have their property confiscated over religious belief.

Couldn't agree with them more. The problem -- of course -- is that it isn't "their" property to begin with. Belongs to the Diocese of Los Angeles. They know it. They don't like it. And so they continue to use the deep pockets of those funding this whole Schismatagora to keep the lawsuits coming -- all the while blaming those who want to STAY in the Episcopal Church for the whole bloody mess.

(As you might be able to tell, I'm pretty much out of patience/on my last gay nerve with it all)

How is this illogical? Let me count the ways . . .

To begin with, St. James Parish did not file the lawsuits. The Diocese of Los Angeles did, and then was joined by the Episcopal Church (USA), who brought a separate lawsuit against St. James.

Next, St. James had not even answered those complaints at the time of the ruling by the California Supreme Court, which they asked the United States Supreme Court to review. Before a case can be over, the defendant must first answer the complaint; then there is a trial. But to the writer just quoted, St. James's filing its answers, and asking the Supreme Court to review a decision made before those answers, constitutes the offense of "keep[ing] the lawsuits coming."

"It isn't 'their' property to begin with. Belongs to the Diocese of Los Angeles." That's not what the deeds say. Ask for a title report on the St. James property, and the title company will tell you (and will agree to insure what it tells you) that the owners of the property are the wardens and the vestry of St. James Parish. The claim that it "belongs" to the Diocese is based on the Dennis Canon -- but even there the writer cannot get it straight. Take a look at the language of the Canon:

All real and personal property held by or for the benefit of any Parish, Mission or Congregation is held in trust for this Church and the Diocese thereof in which such Parish, Mission or Congregation is located. The existence of this trust, however, shall in no way limit the power and authority of the Parish, Mission or Congregation otherwise existing over such property so long as the particular Parish, Mission or Congregation remains a part of, and subject to, this Church and its Constitution and Canons.

The "property . . . is held in trust for this Church and the Diocese thereof . . ." All right, so we have a trust, and we have some specific beneficiaries. But who is the trustee? The trust is expressed in the passive voice: "is held in trust". Normally, to create a legal trust, the language used is as follows: "I, AB, convey my land Blackacre to CD, trustee, to hold the same in trust for EF on the following terms and conditions . . .". The Episcopal Church (USA), however, did not even try to create that kind of trust when it enacted (if it ever did) its Dennis Canon. It did not own the property, so it could hardly say: "The Protestant Episcopal Church in the United States of America hereby conveys the land of St. James Parish in Newport Beach, California to X, as trustee, to hold the same in trust for it and for the Diocese of Los Angeles . . ."

Can the trustee be the Parish of St. James itself? Normally, again, a trustee is not given unlimited power and authority over the property held in trust. The trust document spells out the limitations on just what the trustee may do. Here again, the only limitation on the parish, if it is the trustee of the property it owns outright in fee (a contradiction in terms again -- either you own property outright, or you own it in trust, but not both simultaneously), is that it remain a part of the Episcopal Church (USA).

So what we have here is not a real trust, but a conveyance subject to what the law calls a "condition subsequent". For example, A might deed Blackacre to the City of C "for use as an airport, for as long as the City continues to use it as an airport." If the City tries to use the land for something other than an airport, it forfeits its right to own the property, and the land reverts to A.

The way the Dennis Canon seems to operate, then, is this: land which is held in "fee simple absolute" (to use the technical legal term, i.e., held outright) by the vestry of a parish is converted in some mystical way, simply by the enactment of an obscure national canon, into a "fee simple determinable", which comes to an end on the occurrence of a condition subsequent to the original conveyance -- namely, the ceasing of the parish in question to be a part of the Church, and subject to its Constitution and canons. And yet there is no "original conveyance" to the parish which imposes the condition subsequent! All there is, is the Canon -- which is scarcely a deed or conveyance.

Not only is there no conveyance upon an express condition, but the condition expressed, that the parish remain part of the Church, is made a condition of the capacity to remain as the unnamed "trustee" of the property. In other words, it serves as a qualification upon the "right" to be a trustee, and not upon the right to use the land. (The Canon in no way tries to express what limitations are placed upon the trustee's "power and authority" if it ceases to belong to the Church; it simply implies that the trustee is then no longer qualified to be trustee.)

But as we saw above, there is no trust actually created, because the "trustee" (if we assume it is the parish) can do whatever it likes with the property so long as it remains a part of the Church! It can let the property go unmaintained; or if the property is destroyed in a fire, it has no obligation (under the Dennis Canon, anyway) to rebuild it!

Whoever heard of such a crazy trust? Yet the left doesn't bother to analyze it -- the left simply looks at the outcome it desires, and says: "Aha! You've left the Church! the property is now ours!" And stranger still, courts in a number of States have gone along unthinkingly with this non-thinking.

But that does not make the Dennis Canon a proper trust. Nor is it a proper conversion of title from fee simple absolute into a fee simple determinable. It is neither fish nor fowl, neither a trust nor a conveyance. It is a crazy hybrid concoction of the illogical left.

As I say, if you meet the left on their "terms", they will make you think you are crazy. The Dennis Canon -- never properly drafted, never properly enacted, and never properly interpreted -- is a recipe for madness. No wonder so many millions are being spent on both sides to sort out what it means legally. It should be called the Trojan Canon.