delivered the opinion of the Court as follows:
The Defendants not having answered to the hill in the' Court below, it has been taken pro confesso, and the cause is therefore to be decided upon thertitle and equity apparent on the face of the bill.
If the Plaintiffs have shown a sufficient title to the trust property in the present bill, we have no difficulty in holding that they are entitled to the equitable relief prayed for. It will be but the case of the
eestuis. que trust
enforcing againát their trustees the rights ,of own-, ership under circumstances in which the objects o'f the trust would be otherwise defeated. And in our . judgment it would make no difference whether the Épiscopal church were a voluntary society, or, clothed with corporate powers ? for in equity, as to objects which the
At a very early period the religious establishment of England seems to have been adopted in the colony of Virginia,- and, of course, the common law upon that subject, so far as it was applicable to the circumstances .of that colony. The local division into parishes for ecclesiastical purposes can be very early
traced;
and the subsequent laws enacted for religious purposes evidently pre-suppose the existence of the Episcopal church with its general rights ami authorities growing out of the common law. What those rights and authorities are, need .not be minutely stated. It is sufficient that, among other things, the church was capable of receiving endowments of land, and that the minister of the parish was,.during his incumbency, seized of the freehold of its inheritable property, as emphatically
persona ecclesiw,
and capable, as a sole corporation, of transmitting that inheritance to his' successors. Th'e church wardens, also, were a corporate body clothed with authority arid guardianship over the repairs of the church, .and its personal property; and the other temporal concerns of tlie parish were submitted to a vestry composed of persons selected for that purpose. In order more effectually to cherish and support religious .institutions, and to define the authorities and rights of the Episcopal officers, the legislature, 'from time to time, enacted laws on this pqbjcct. By the statutes of 1661,
ch.
1, 2, 3,10,
and
1667,
ch.
3, provision was made'for the erection and repairs of churches and chapels of
ease;
for the laying out of glebes arid church lands, and the building of *a dwelling bouse for the
minister;
for the making of assessments and taxes for these and other parochial purposes^ for the appointment of church wardens to keep the church in repair, and to provide books, ornaments,
&c.;
and, lastly, for the election of a vestry of twelve persons by the parishioners, whose duty it was, by these and subsequent statutes, among other things, to make and proportion levies and assessments, and to purchase glebes and erect dwelling houses for
By the operation of these statutes and the common law, the lands thus purchased became vested, either directly or beneficially, in the Episcopal church. The minister for the time being was seized of the freehold, in law or in equity, fire ecclesiai, and, during' a vacancy, the fee remained, in abeyance, and the profits of the parsonage were to be taken by the parish for their own use. Co. Lit. 340, b. 341, 342, b. 2, Mass. 11. 500.
Such were some of the rights and powers of the Episcopal church at the time of the American revolution $ and under the authority thereof the purchase of the lands stated in the bill before the Court, was undoubtedly made. And the property so acquired by the church remained unimpaired, notwithstanding the revolution ; for the statute of 1776, ch. 2, completely confirmed and established the rights of the church to all its lands and other property.
The stat. 1784,
ch.
88, proceeded yet further, it expressly made the minister and vestry, and, in case of a vacancy, the' vestry of each parish, respectively, and their successors forever, a corporation by the name of the Protestant Episcopal bhurch in the parish where they respectively resided, to have, hold, use and enjoy all the glebes, churches and chapels, buryíng-groúnds, books, plate and ornaments appropriated to the use of, and every other thing the property of the late Episcopal church, to the sole use and benefit of the corporation. The same statute also, provided for the choice of new vestries, and repealed all former laws relating to vestries aiid church wardens, and to .the support of the clergy, &c. and dissolved all former vestries j and gave the corporation extensive powers as to the purchasing, holding, aliening, repairing and regulating the church property. This statute Was repealed by the statute of 1786,
ch.
12, with a proviso saving to all religious societies the property to them respectively belonging, and authorizing them to áppoint, from timé to time, according to the rules of their sect, trustees who should be capable of managing and applying such property to the
It is under this last statute that the bill charges the Defendants (who are overseers of the poor of the parish of Fairfax) with claiming a title to dispose of the landi in controversy.
This summary view of so much of the Virginia statutes as bears directly on the subject in controversy, presents not only a most extraordinary diversity of opinion in the legislature as to the nature and propriety of aid -in the temporal concerns of Religion, but the more embarrassing considerations of the constitutional character and efficacy of those laws touching the rights and property of the Episcopal church.
It is conceded. On all sides that,, at the revolution, the' Episcopal church no longer retained its character as an exclusive religious establishment. And there cari be no doubt that it was competent to the people and to the legislature to deprive it of its superiority over other religious sects, and to withhold from it any support
by-public taxation.
Rut, although it may be true that “religion can be directed only, by reason and conviction, not by force or violence,’’.and that “ all men arc equal
Be, however, the general authority of the legislature as to the subject of religion, as it may, it will require other arguments to establish the position that, at the revolution^ all the public property acquired by the Episcopal churches, under the sanction of the laws, became the property of the state; Had the property thus acquired been originally granted by the state or the king,;, there might have been some color (and it would have been but a color) for suclrari extraordinary pretension. But the property was, in fact and in law, generally purchased by the parishioners, or acquired by tjie benefactions of pious donors. The title thereto was indefeasibly vested in the churches, or rather in their legal agents.- It was not in the power of the .crown to seize or assume it j nor of the parliament itself to destroy the grants, unites by the exercise of a power the most
it is not, however', necessary to rest this cause upon the general doctrines already asserted 5 for, admitting that, by the revolution, the church lands devolved on the State, the statute of 1776, ch. 2, operated <as a new grant and confirmation thereof to the use Of the church;
If the legislature possessed the authority to make such ft grant and confirmation, it is very clear to our-minds that it vested an indefeasible and irrevocable title. We have no knowledge of any authority or principle which could support the doctrine that a legislative grant is revocable-in its own nature, and held only
durante bene placitOi
Such a doctrine would uproot the very foundations of almost all the land titles in Virginia, and is utterly inconsistent with a great and fundamental principle of a
It is asserted by the legislature of Virginia, in 1798 and 1801, that this statute was inconsistent with the bill of rights and constitution of that slate, and therefore void. Whatever weight such a declaration. might properly have as the opinion of wise and h atned men, as a declaration of what the lawr has been or is, it can have no decisive authority. It is, however, encountered by the opinion successively given by former legislatures from the earliest existence of the constitution itself, which were composed of men of the very first rank for talents and learning. Ami this opinion, too, is not only a extemporaneous exposition of the constitution, but has the additional weight that it was promulgated or acquiesced in by a great majority, if not the whole, of the very framers of the constitution. Without adverting, however, to the opinions on the one side or the other, for the reasons which have been already.stated, and others which we forbear to press, as they would lead to too prolix and, elementary an examination, we are of opinion that the statute of 1776, ch. 2, is not inconsistent with the constitution or bill-of eights of Virginia. We are prep&rgd to go yet farther, and hold that the statutes of 1784; jih. 88, and 1786, ch. 37, were no infringment of any rights secured or intended to be secured under the constitution, .either civil, political, or religious.
How far tlie statute of 1786;
ch.
12, repealing the statute of,l784,.c/¿. 88, incorporating the Episcopal churches, and the subsequent statutes in furtherance thereof of 1788,
ch.
47, and
ch.
63, were consistent with the principles of civil right or the constitution of Virginia, is a subject of much, delicacy, and perhaps not without difficulty. It is observable, however, that they reserve to the churches all their corporate property, and authorize the appointment of trustees to manage the same. A
private
corporation created by the legislature may loose, its fiairchises by a
misuser
or a
nonuser
of them ; and they may be resumed by the government under a judicial judgment upon a
quo warranto
to ascertain and enforce the forfeiture.- — This is the common law of the land, and is a tacit condition annexed to the creation of every such corporation. Upop a. change of government, too, it may be ad
Let us now advert to the title set up by the Plaintiffs in the present bill. -U /on inspecting the deed which is made a part of the bill, and. bears date in-1770, .the land appears to havp been conveyed to the grantees as church wardens of the parish of Fairfax and to their successors
It would seem, therefore, that the present deed did not. operate by way of grant to convey a. fee to the. church wardens and their successors$ for their successors, as such, could not take ; nor to the church wardens in their natural Capacity ; for (i heirs” is not in the deed. But the covenant of general warranty in the. deed binding the grantors and their heirs forever, and warranting the land to the church wardens and their successors forever may well operate by way of estoppel to confirm to the church and its privies the perpetual and beneficial estate in the land.
One difficulty presented on the face of the bill was, that the Protestant Episcopal church of Alexandria was not directly averred to be the same corporate or unincorporate body as the church and parish of Fairfax, or the. legal successors thereto, so as to entitle them to the lands in controversy. But upon an accurate examination of the bill, it appears that tlie purchase was made by the vestry “ of the said parish and church,” s‘ for the use and heneiit of the said church in the said parish,” It must, therefore, be taken, as true that there was no other Episcopal church in the parish ; and that the property belonged to the church of Alexandria, which in this res* pect, represented the whole parish. And there can be no doubt that the Episcopal members of the parish of Fairfax have still, notwithstanding a separation ‘from the state of Virginia, the same rights and privileges as
The .next consideration is whether the Plaintiffs, who are vestry-men, have, as such, a right to require the lands of the church to be sold in the manner prayed 'For in the bill. Upon the supposition that no statutes passed since the revolution are in force, they may be deem' d to act under the previous statutes and the common law. By those statutes the vestry were to be appointed by the parishoners “for the making and proportioning levies and assessments, for building and repairing the churches and chapels, provision for the pool1, maintenance of the minister, and spch other necessary purposes, and for the more orderly managing ail parochial affairsout of which vestry the minister and véstry wTere yearly to choose two church wardens.
As incident to their office as general guardians of the church, we think tliey must be deemed entitled to assert the rights arid interests of the church. But the minister, also having the freehold, either in law or in equity, during his incumbency, in the lands of the church, is entitled to assert his own rights as persona ecclcsioc. No alienation, therefore of the church lauds can he made either by him? self or by the parishioners or their authorized agents, without the mutual consent of both. And therefore wo should he of opinion that, upon principle, no sale ought, to be absolutely decreed, unless with the consent of the parson, if the church be full.
If the statute of 1784,
ch.
88, be in force for any pur? pose whatsoever, it seems to us that it 'would lead to a like conclusion. If the repealing statute of 1786,
ch.
13 or the statute of 1788,
ch.
47, by which the church property was authorized to be vested in trustees chosenjiy the church, and their successors, be in force for any purpose whatsoever, then the allegation of the bill, that the Plaintiffs “ have, according to the rules and regulations of their said society, been appointed by the congregation vestry-men and trustees of the said church,” would directly apply, and authorize the Plaintiffs to institute the. present bill. Still, however, it appears to us that in case of a plenarty of the church, no alienation or sale of tlie church lands ought to take place without the
On the whole the majority of the Court are of opinion that the land in controversy belongs to the Episcopal church of Alexandria, and has not been divested by revolution, or any act of the legislature passed since that period; that the Plaintiffs are of ability to maintain the present bill; that the overseers of tl\e poor of the parish of Fairfax have no just, legal, or equitable title to the said land, and ought to be perpetually enjoined from claiming the same; and that a sale of the said land ought, for the reasons stated in the bill, to be decreed upon the assent of the minister of said church (if any there be) being given thereto; and .that the present church way-dens and the said James "Wren ought to be decreed to convey the same to the purchaser; and the proceeds to be appiied in the manner prayed for in the bill.
The decree of the Circuit Court is to be reformed so as to conform to this opinion.