| Va. Ct. App. | May 15, 1804
On the present occasion, we are solemnly called on by the appellants, in their bill of complaint, to decide, whether an act of the general assembly, entitled,
This is a question which I most sincerely regret has ever been agitated. At the commencement of our happy revolution, that reverend body of men, who then filled the pulpits in this country, far from inculcating the doctrines of passive obedience and non-resistance to the invaders of the rights of their country, were zealous in her cause, and not only by precept and exhortation, but even by example in numerous instances, demonstrated that no selfish considerations of the possible consequences of a change of government, could influence them to swerve from that noble attachment to the liberties of their country, which communicated zeal and energy to others: And, if ever men in their station deserved the esteem of their country, that meed was due to the established church in Virginia, at that period. That the convention did not explicitly provide for the security of their rights by a constitutional declaration, is an omission, of which I pretend not to know, or to assign, the cause.
Nor can I less regret, that this question, on which the legislature were so repeatedly urged to pass a law, was so long, and so repeatedly avoided and procrastinated by them, that the reasons which might have operated with those who had participated in the debates in the convention, have either been totally forgotten, or are still remembered, only by a few, who have either retreated from the service of their country, or have been appointed to serve her in some other department. But most of all, I regret that this truly important question did not receive that solemn discussion and decision, which it was intended it should have received, on the very day that robbed Virginia of the oldest, and one of the
But, since it has been reserved for me to have a part in this truly important decision, I shall, on the present occasion, deliver that opinion, which a diligent and minute enquiry into the subject, and a candid investigation of the grounds and principles, according to which'it must be decided, will enable me to pronounce. And, if in this investigation I may appear to be prolix, that circumstance I hope will acquit me of precipitancy in forming my judgment.
As a preliminary to the due understanding of this question, it may be proper to take some notice of the common law doctrines concerning parishes, glebes, parsons, church wardens, parishioners and vestries.
1. Parishes. These constitute a part of the ecclesiastical division of England. It seems agreed, on all hands, that, in the early ages of Christianity,' parishes were unknown there; or, at least, signified the same as a diocese does now. There was no appropriation of ecclesiastical dues to any particular church : Every man was at liberty to contribute his tithes to whatever parish, or church, he pleased, provided only that he did it to some. But it was ordered by the laws of king Edgar, about the year 790, that “ Dentur omnes décima primaria ecclesia ad quam parochia pertinet.” The lords, as Christianity spread itself, built churches upon their own demesnes, or wastes, to accommodate their tenants in one or two adjoining lordships; and obliged all their tenants to appropriate their tithes to the maintenance of one' officiating minister, instead of leaving them at liberty to distribute them .as formerly;, and this tract of land, the tithes of which were so appropriated, was called a parish. 1 Black. Com. 112, 113, 114.
The manner in which these endowments of the church, by annexing thereto a glebe, or land, for the maintenance of the parson, was made, does not appear. Probably, as deeds and conveyances were at that time in little use, the endowment was made in the same manner as the feudatory’s or tenant’s estate was given ; that is to say, by the ceremony of corporal investiture, or open and notorious delivery of possession to the incumbent (or feudatory) in the presence of the other vassals, or tenants, of the manor. 2 Black. Com. 53. And this, while feuds were granted for life only, put the incumbent into the same situation, precisely, with respect to his glebe, as the other tenants or vassals were in, with regard to their feuds. And this ceremony, of a public and notorious investiture, is still preserved in the case of parsons in England, under the name of induction: which is performed with even greater solemnity than the ancient livery of seizin: which ceremonies respectively were indispensably necessary to complete the title both of the feudatory and the parson. 1 Black. Com. 391. 2 Black. Com. 311, 312. “ In whom the fee simple of the glebe is,” (says sir Edward Coke) “ is a question in our books. Some hold it is in the patron; but that cannot be for two reasons. First, that, in the beginning, the land was given to the parson and his successors ; and the patron is no successor. Secondly, the words of the writ of juris utrum be, si sit libera eleemosyna ecclesiiz de D., and not of the patron. Some hold that the fee simple is in the patron and ordinary; but this cannot be for the causes above said : and, therefore, of necessity, the fee simple is in abeyance, as Littleton saith.” 1 Inst. 341, a.
What I have said with regard to a parson’s being a corporation at common law, is to be understood with some qualification. For parsons were not civil corporations by the common law; nor are they so at this day, even in England; but ecclesiastical corporations as members of the established church. 1 Black. Com. 470. They were erected for the furtherance of religion, and perpetuating the rights of the church. Ibid.
Parishioners are a body politic to many purposes: as to vote at a vestry, if they pay scot and lot; and they have a sole right to raise taxes for their relief, without the interposition of any superior court, may make by-laws to mend the highways, and for repairing the church ; and making a bridge or any such thing for the public good. 8 Mod. 354, argo. Jacob’s L. Diet, word Parishioner.
The parishioners, or inhabitants, or probi homines of Dale, are not capable of purchasing lands. Co. Litt. 3, a. But Mr. Hargrave, in a note, refers to a case in Dyer, 100, of a grant by the crown, probis hominibus de Islington, rendering rent: and in 4 Inst. 297, sir Edward Coke mentions
By the common law, the parish rates must be made with the consent of the major part of the parishioners, housekeepers, or occupiers of lands. In order to which they must have notice of a vestry, (a place so called from the vestments of the minister kept there, and in which the meeting of the parishioners is held,) and then all absent are concluded by the majority of them that are present, who, in the construction of law, are the whole parish. Wood’s Inst. 90. 2 Stra. 1045.
By custom, however, these may be select vestries. Ibid. But lands for the use of the church must be purchased in the name of trustees. Ibid.
If any sole, or aggregate corporation, ecclesiastical or temporal, (for the words of the statute be si quis re'ligiosus vel alius,) purchase lands or tenements in fee, they have capacity to take, but not to retain, unless they have a sufficient license in that behalf| for within the year after the next alienation, the next lord of the fee may enter, &c.; and, for default of all the mesne lords, the king. Co. Litt. 2, b.
Corporations, whether sole or aggregate, ecclesiastical or temporal, being merely creatures of the law, it seems reasonable to presume, that the laws of England, respecting them, which were in force at the time the colony of Virginia was first settled, were brought over hither at the time; and where not altered or repealed by legislative or constitutional acts, remain in force, by virtue of the ordinance of convention, May 1776, ch. 5, (edi. 1785, p. 37.) But ecclesiastical corporations, (or more properly speaking, bodies politic,) being erected for the purpose of perpetuating the rights of the established church, must be presumed to have ceased, as soon as that constitution was established, which did not admit of any establishment of religion in Virginia; and therefore the laws which regarded them as part of the body politic, were repealed by the revolution.
If these inferences are just, it will then follow, that neither church wardens, vestries, nor parishioners, are, by the common law, capable of purchasing or holding lands, for the use of the church.
And that parsons, unless by special license, could not hold against the crown, although they might purchase lands, to them and their successors, for the use of the church. And as all escheats, penalties and forfeitures heretofore going to the king (except such as the legislature may have abolished) now go to the commonwealth, if there be any case of a purchase of lands by a parson for the use of his church, without license, the forfeiture (unless saved by the repeal of all British statutes) will go to the commonwealth. And, if, as judge Blackstone informs us, 2 Black. Com. 268, the king might have entered on the lands so purchased in mortmain, for the forfeiture, it follows, that the commonwealth may now do the same. Sir Edward Coke’s text is, “ Within the year after the alienation, the next lord of the fee may enter; and, if he do not, then the next immediate lord from time to time to have a year, and for default of all the mesne lords, then the king to have the land so aliened forever.” Co. Lift. 2, b. This opinion of judge Blackstone, that the king may enter for the forfeiture by aliening lands in mortmain, does not seem reconcileable to the general maxim that the king can neither take, nor part with, any thing but by matter of record. 3 Black. Com. 250. Finch. Law, 82. And, in the same passage, the commentator proceeds to say, That it is a part of the liberties of England, and greatly for the safety of the subject, that the king may not enter upon or seize any man’s possessions upon bare surmizes, without the intervention of a jury; and for this he cites Gilb. H. of tlie Eccch. and Hob. 347. I incline therefore to doubt, whether the king might have entered for the forfeiture in such a case,
Be this as it may, the legal title to the glebes in Virginia must, according to the preceding view of the rules of the common law, have been made either to trustees, or to the parson and his successors, by a special license, (without which they were liable to forfeiture) or to some person or body politic authorized by law to purchase, and hold lands for the benefit of the churches, respectively, for which they were intended as an endowment. We must therefore en-quire,
1. Whether by general provision to be found in the colonial laws, any person, or persons, or body politic or corporate were declared capable in law to purchase, or to take and hold lands for the use of the churches in the several parishes in the colony, or not ?
The act of 1661, ch. 3, preserved in Purvis, entitled, “ glebes to be laid out,” is wholly silent as to this matter, declaring only, “ That for the better encouragement and accommodation of the ministry, there be glebes laid out in every parish, and a convenient house built for the reception and abode of the minister, according to his majesty’s instructions.”
It seems presumable that above thirty glebes were appropriated to the several parishes under this law (see Mercer's Abridgement, title, Parishes); and it is equally to be presumed that no patent or conveyance for any of them can at this Hay be found, unless such as might be given by will.
The act of 1696, ch. 11, a manuscript copy of which I have seen, after reciting that the law then in force, entitled, “ glebes to be laid out,” in making such provision doth appear very deficient, and uncertain, repeals the same: it is then further enacted, that every vestry shall be, and are authorized and empowered, where the same is not already done, to purchase and lay out a tract of land for the glebe, in their discretion, and at the charge of their respective parishes; and likewise to build a convenient dwelling house for the reception and abode of the minister of such parish.
The several, acts of 1727, ch. 6, and 1748, ch. 28, are made in confirmation of the authorities given by this act; and the latter particularly makes that a duty in the vestry, which the former only gave them authority to do; the words are, “That in every parish, where a good and sufficient glebe is not already purchased and appropriated, a good and convenient tract of land shall be purchased by the vestry, and assigned and set apart for a glebe, for the use of the minister of such parish and his successors, in all times Hereafter. And it is thereby declared and enacted, that the vestry of every such parish shall have power, and they are
The vestries in Virginia were not composed as it appears they generally are in England, of the parishioners, or a major part of them assembled in vestry, as before mentioned; but resemble the select vestries, which by custom, are to be met with in some parishes there. They seem to have been constituted at a very early period of the colony, “ for making and proportioning levies and assessments, for building and repairing the churches and chapels, provision for the poor, maintenance of the minister, and such other necessary uses, aud for the more orderly management of all parochial affairs.” And for those purposes, it was enacted that twelve of the most able men of each parish be by the major part of the parish chosen to be a vestry, out of which number two church wardens to be yearly chosen by the minister and vestry; and in case of the death of any vestryman, or his departure out of the parish, the minister and vestry were to choose another in his room. L. Virg. 1661, ch. 2. These vestries then were to have perpetual succession according to that constitution; and although there is no express declaration either in that, or any subsequent general law, that they shall be a body corporate and politic, and be capable to purchase and hold lands for the use of their respective churches, yet I conceive it to be a necessary and unavoidable inference and deduction from all these acts taken together, that they were, and should be regarded as a body politic for those purposes.
To this there may be two objections:
First. That the king, by virtue of his prerogative, was the only person that could erect either an ecclesiastical, or lay corporation, 10 Co. 33, b. ad Jinem; and that this must be done by charter, Ibid,. That every corporation must have a name, &c.
That, in creating a corporation, the law does not seem to require any set form of words, 10 Co. 30; and that it is held, that if the king grants lands to the inhabitants of D. their heirs and successors rendering rent, that for any thing touching those lands, this is a corporation ; but not for other purposes. 1 Bac. Ab. 500.
That as neither the parishioners, nor church wardens were capable of purchasing lands for the use of the church, and it might be doubtful whether the ministers or incumbents could do it without a special license, if the vestry could not hold the lands, the intention of the law would be wholly frustrate, for want of some body capable of purchasing and holding the lands, for the use of the churches. Co. Litt, 94, b.
That the purchasing of lands for the use of the churches, being a duty prescribed to the vestry, it must be intended that the legislature meant to authorize them to take the conveyances to themselves, and hold the lands for the uses and purposes prescribed by the act. For all incidents are ever implied by a statute. 2 Inst. 221.
Secondly. It may be objected, that the great number of private acts, which were made from time to time by the legislature, in which the vestries were expressly declared to be empowered and made capable to take, receive and hold any land to be purchased or given for a glebe for the use of the parsons of their respective parishes, for the time being, forever, manifest the opinion of the legislature in all those cases to have been, that, without such a clause, the vestries would not have been capable of taking and holding lands for those purposes. Vid. the acts of 1734, ch. 20; 1736, ch.
To this I answer, that notwithstanding the greater;! pect is certainly due to the opinion of the legislating respecting any matter of law, yet the opinion of the legislature, where it is only collaterally manifested, does not constitute the law; and even where such an opinion is directly expressed, if it be only by way of recital, and not made part of an enacting or declaratory clause, such opinion, so expressed, does not conclude the judiciary from examining into, and pronouncing the law to be, what according to their best judgment it shall appear to them. Therefore, although it does undoubtedly appear from these private acts, that the legislature most generally thought such a clause necessary to enable the vestries to take and hold lands, yet that might be only the effect of abundant caution. Nor are wanting instances where such clauses have been wholly pretermitted. Virg. Laws, 1732, ch. 18; 1744, ch. 19, 23, 25.
Upon these grounds, I conceive there is a strong presumption that, from the year 1696, to the period of the American revolution, the vestries in Virginia were a body politic, capable of purchasing and holding lands for the use of the ministers of their respective parishes; and capable of a perpetual succession, for those and other parochial purposes. And secondly, that the legal titles to all the glebe lands in Virginia, purchased since the year 1696, were at the period of the revolution vested in the vestries of the respective parishes, unless the contrary, in particular cases, be shewn.
2. I shall now proceed to enquire, Whether the legal title to the glebes, thus supposed to be vested in the vestries of the several parishes respectively, still subsists and remains in those bodies ?
The act of October 1776, ch. 2, § 4, declares, That there shall, in all time coming, be saved and reserved to the use of the church by law established, the several tracts of glebe land already purchased, as also the perpetual benefit and
By the acts of May 1780, ch. 22, and May 1782, ch. 36, the vestries in twelve counties beyond the Blue ridge of mountains were dissolved.
In May 1784, ch. S3, an act occurs to empower the vestry of Antrim to sell the glebe, and to purchase one more convenient for the use and benefit of the minister of the said parish, for the time being, forever. Several other like acts may be found since the revolution.
And, in October 1784, ch. 43,1 find an act authorizing the vestry of the parish of Manchester to straighten the line between the glebe land of that parish and the lands of William Logwood, and to exchange, by deed, to be recorded in the court of Chesterfield county, such parts of the glebe land as will by this means be annexed to the land of the said Logwood, for such parts of his land, as will be annexed to the said glebe.
By an act of the same session, 1784, ch. 88, for incorporating the protestant episcopal church, all former vestries were declared to be dissolved, on the day before the Monday in the next Easter week; and an entire new mode of electing vestries was established : and all former acts for the support of the clergy were repealed. A general election of vestries throughout the state was directed to be held the ensuing Monday in Easter week, and thereafter on the same day in every third year.
By this act, the minister and vestrymen of the several parishes in this commonwealth, at that time (or in case of a vacancy), the vestry of each parish and their successors forever, were made a body politic and corporate by the name of the minister and vestry of the protestant episcopal church in the parish where they respectively reside, with capacity to purchase and hold lands; and the glebe lands, fee. were
The succeeding year, 1785, ch. 12, another act passed authorizing the election of vestries in all those parishes where it had not already been done in pursuance of the former act, and declaring them, when elected, to have the like capacities, &sc.
By an act of the next year, 1786, ch. 12, the act for incorporating the protestant episcopal church was repealed. Saving, to all religious societies, the property to them respectively belonging; who are thereby authorized to appoint, from time to time, according to the rules of their sect, trustees, who shall be capable of managing and applying such property to the religious uses of such societies. And to guard against all doubts and misconstructions, it is further enacted and declared, that so much of all laws, now in force, as prevents any religious society from regulating its own discipline, shall be, and is hereby repealed.
The act of 1788, ch. 47, declares, that the trustees of the protestant episcopal church and their successors shall, to all intents and purposes, be considered as successors to the former vestries, and shall have the same power of holding and managing all the property formerly vested in them, whether for charitable purposes, by private donation, or in trust for the use of individuals.
As the bill no where states that the complainants were elected vestrymen and church wardens, pursuant to the act for incorporating the protestant episcopal church, nor, that since the act for repealing that act, they were appointed trustees for the managing and applying the property belonging to their church, I might here close my remarks upon this particular case, by observing shortly, that the complainants have not shewn any legal title in themselves, under either of those acts. But, as this question is considered as a general one, in which the constitutionality of an act of the legislature may be questioned, if a clear and perfect case were made out on the part of the legislature, 1 shall proceed.
Without stopping (for the present) to consider what effect ■the private act of 1784, ch. 43, may have upon this particular case, let us endeavour to discover the effect of the other acts, which may be deemed public, or at least more general acts.
The act of 1784, ch. 88, for incorporating the protestant episcopal church, in the preamble sets forth, “That the clergy of the protestant episcopal church, by their petition presented, have requested that their church may be incorporated.” This petition may, therefore, be considered as a surrender on the part of the clergy (if not of the vestries) of their former rights und privileges: Which, says judge Blackstone, is a kind of suicide, and one of the modes by which a corporation may be dissolved. And the áct made in consequence of that petition, seems to amount to anacceptance of that -surrender, by the general assembly, on the one hand, and the declaration that the former vestries should be dissolved on the Easter Monday following, and that all former laws concerning vestries, glebes and churches, should be repealed, seems to be a kind of parliamentary sanction given to that transaction, and amounts, I presume, to an absolute dissolution of those bodies, by a legislative act, which is another mode by which the ancient books agree that a corporation may be dissolved. 1 Black. Com. 484.
But whether this petition on the part of the clergy only, without any concurrent act done by the vestries, would of itself amount to a surrender of their estates in their glebes, might be doubted ; but wherever the vestries concurred in carrying the act into execution, it would seem that the consequence of all these things taken together, must have been a complete dissolution of the former bodies politic, and the
To this it may be objected, that a body politic may be incorporated by one name, and after by another name, and then they shall use their name according to their second incorporation j and yet shall continue their possessions, and all other franchises and privileges, which they had before by the other name. 4 Co. 87. So that in this case there was
To this it may be answered, that under the former laws and constitution of the colony of Virginia, the parson, and the vestry were considered as part of the general body, politic, or state; and not as a mere private incorporation, with capacity to hold lands, to a certain amount, for a special purpose : The former being a branch of the hierarchy of the monarchical constitution, and engrafted upon the government itself; whereas, the latter were, at most, an eleemosinary body, for private, although in some measure, spiritual purposes : and that the acceptance of such a private foundation, in lieu of their former privileges, immediately connected with the government itself, must be construed as a total surrender of. their former state ; and an acceptance of an entirely new, and essentially different, constitution of incorporation.
And if this should be the true light in which the act for incorporating the protestant episcopal church ought fo be viewed, it will probably lead us to get clear of some of those embarrassments in which this complicated and intricate question is involved.
For if this anoient body politic, which formed a branch or member of the constitution, was actually dissolved, either by the rejection of the king as supreme head of the church, at the time of adopting our present constitution, or by the act incorporating the protestant episcopal church, it would seem that, in either of these cases, the ancient right was wholly discontinued, and that upon such dissolution of a body politic, all the consequences incident to the dissolution of a body politic, by the common law, would immediately follow. And then the question would turn upon the right which the legislature possess to dispose of that property, otherwise than the law had already disposed of it, eo instanti, that a dissolution of the ancient body politic took place.
By the ancient usage, and probably by virtue of some law, or instruction from the king, which I have not seen, or heard of, the governour of the colony was (as I have understood) entitled to present. And if he neglected to do so, for a certain time, then the bishop of London, and, after all, perhaps the king, by his prerogative. Now the revolution certainly annihilated this part of our ecclesiastical constitution. The forfeiture incurred by the lapse, would consequently accrue to the commonwealth, by the 20th article of our constitution. But the governour could not in this case present; for he is absolutely prohibited from exercising any part of the royal prerogative. Constit. Virg. art. 9.
Here we may ask, whether the ancient vestries were to be considered as the patrons of the church? For although the period in which a lapse might be incurred, had elapsed, yet if the patron should present, before any presentation by the bishop, the metropolitan, or even by the crown, such presentation by the patron was good. 2 Blade. Com. 277.
I confess I can find no grounds to consider them in this light; they were neither the founders, nor donors, of the churches and glebes; but merely parochial officers.
If then, their authority extended no further than the act of assembly may be supposed to give it, after the lapse of
Now, when the end of an institution is gone, the institution itself is gone. 12 Mod. 19. 1 Show. 280. 1 T. Rep. 214, 241, 248. Consequently, in those parishes where there has been no incumbent for twelve months, the ancient vestries can never more present an incumbent; and the end of the institution in every such case being lost, the institution Itself is gone; or, in other words, the vestries are forever dissolved.
But by the common law, if lands are given to a corporation which is afterwards dissolved, the donor shall have the lands again; for the law annexes such a condition in every grant to a body politic, Co. Litt. 14, b.; and sir Edward, 'Coice says expressly, that no writ of escheat Jieth in this case ; but it would seem, that the donor or grantor, may reenter. Ibid. It is true that Mr. Hargrave expresses a doubt upon it. But judge Blackstone has adopted the opinion of lord Coke, 1 Black. Com. 484; and his authority is decisive with me in this case. 1 Fonbl. Eq. 308, n.
Here, then, the question, who were the donors of the glebes in Virginia? immediately presents itself.
To which we may venture to answer,
1. That, presumptively, the crown was the donor of the glebes, appropriated antecedent to the year 1796. For the act of 1661, (which I suspect to have been of earlier date,) entitled “glebes to be laid out;” and which refers to his majesty’s instructions, will not, I think, admit of any other construction.
2. In all cases where donations of glebes, by deed or will, can be shewn, there can be no doubt, except where there may be a defect of heirs of such donors.
3. But the most difficult part of the question still remains, viz.: who are to be regarded as the donors of those glebes
In moral justice, it would seem, that they should vest in the parishioners of the parishes, to which they respectively belong; at whose charge and expense they were purchased, without regard to distinctions of religious sects, or denominations, since all were obliged to contribute, and did contribute to the purchase. But, anxiously as I have sought the law to support this moral principle, I have not been able to find it. That the legislature of Virginia, however, have, from time to time, acted under the influence of it in particular cases, I think may be demonstrated, by examining the private acts which have passed on the subject of the glebes and churches in Virginia, as in the acts of 1730, ch. 18,19 ; 1732, ch. 16, 18; 1734, ch. 19; 1736, ch. 16; 1738, ch. 20; 1742, ch. 31; 1744, ch. 23, 25, 27, and probably many others; in which, upon a division of parishes, those parts of the ancient parish, to which the glebe theretofore purchased should fall upon the division, were required to compensate the other part, for their proportion of the glebe, church, &tc. The act of 1744, ch. 31, is indeed an exception to this course of proceeding: The glebe in that case being assigned to one part of the ancient parish, without any compensation to the other parts from which it was separated by that act.
Cogent as this moral principle is in my mind, and fortified as it is by the many instances which occur in the acts of the legislature, which I have just referred to, since I cannot discover any principle of law to support it, I am driven to seek for the law of the case elsewhere; and consequently to say, that, if the property in them could not, upon the dissolution of the body politic in whom the legal title was vested, revert to the parish, that is to say, to the parishioners, at large, it must have vested in the commonwealth: for no other owner can I find for it, under the existing laws of the land.
But the case of Burgess v. Wheate, was relied on to shew that the complainants were entitled to hold the lands
Taking it, therefore, that the mere act of rejecting the king and the ancient constitution of the colony, and adopting one totally different therefrom, did operate an immediate dissolution of every part of the body politic connected with, and dependent upon, the ancient constitution, or form of government; or taking it, that these subordinate parts of -the body politic might continue to enjoy such parts of their ancient rights (not incompatible with the new constitution) as the legislature, in their wisdom, should permit, I am constrained to say, 1. That the ancient vestries were dissolved, either by the change of government, or by the act for incorporating the protestant episcopal church : and that the new bodies corporate, consisting of the minister and vestry (or -in case of a vacancy in the ministry), in the vestry alone, were private incorporations, essentially differing from the former, and owing their existence and their rights, solely to that act of the legislature: And, 2. That the property in those glebes, which were either in fact, or in contemplation of law, given to the ancient parishes by the crown ; or which were purchased by the ancient vestries for the use of their respective churches did, p fact, (but whether constitutionally, or not, will be examined hereafter,) pass and vest in the new incorporations, authorized by the act for incorporating the protestant episcopal church, wherever the inhabitants of the parishes did proceed to elect, and did elect ves
3. Our next enquiry, therefore, must be, Whether the property thus vested in the ministers and vestries, or the trustees thereafter authorized by the act of 1788, ch. 47, to be appointed, for the use of the protestant episcopal church, still remains in them? or, in other words, Whether these newly incorporated bodies are still of capacity to hold the glebes for the use of that church, or have been, and are dissolved ?
Now, the act of 1798, ch. 9, expressly repeals the act for , incorporating the protestant episcopal church, (1784, ch. 88); the act to authorize the election of certain vestries (1785, ch. 37), the act to repeal the act for incorporating the protestant episcopal church (1786, ch. 12), and the act for giving certain powers to the trustees of the property of the protestant episcopal church (1788, ch. 47) 5 and declares the same to be void, and of none effect.
That such corporations may be dissolved by the authority of the parliament or legislature alone, without the intervention of judicial proceedings, has been practically evinced by the dissolution of the monasteries in England (Siat. 27 H. 8, ch. 28. 31 H. 8, ch. 13. 37 H. 8, ch. 4); and seems never to have been questioned in that country: And, in Virginia, both before and since the revolution, the legislature has never scrupled, it would seem, to exercise the right, whenever the occasion seemed to require it. Acts 1744, ch. 35; 1753, ch. 18,23,24; 1757, ch. 20, 26; 1758, ch. 11; 1759, ch. 22; 1762, ch. 32; May 1777, ch. 20, 21; October 1777, ch. 32, 36; October 1778, ch. 13; May 1780, ch. 22; May 1782, ch. 36; 1784, ch. 89, and many others.
But it has been said, that these acts were passed upon the application of the parties concerned in interest. This, though, was not always the case; for they were often passed on the application of those who were hostile to the existing vestries: And the frequent recognition of this right in the legislature by such application, may have authorized an application of the maxim “ communis error facit jus.”
However, as these acts may have been passed sub silentio, without their validity, or the power of the legislature to .pass any of the like nature, being questioned, even by the legislature, this court must be bound to examine into their validity, whenever the question is brought before them.
This is an unpleasant, and in some respects an arduous, task; for surely no task can be more arduous than that of reconciling the conflicting, and even opposite, acts of the legislative body. If they cannot be reconciled to each other, it will be our duty to pronounce those to be valid, which are most easily reconcileable to the dictates of moral justice, and the principles of the constitution of this commonwealth.
First, that the right of private property; and,
Secondly, that the right of conscience in matters of religion, shall be held sacred and inviolate.
A third principle, scarcely inferior in point of importance, and not inferior in point of obligation is, That no man, or set of men, are entitled to exclusive or separate emoluments or privileges from the community, but in consideration of public services. Art. 4.
What are public services ?
Such, in which the community have, or may be presumed to have, a common interest.
Can the dissenters from the protestant episcopal church (infinitely more numerous than the adherents to that church) be presumed to have a common interest, with them, in the promulgation of religious tenets, of which they disapprove, and from which they avowedly dissent ?
If this be the fact, of which I believe no doubt is entertained, are the members of the protestant episcopal church entitled to receive from the community at large, exclusive, or separate emoluments, for teaching doctrines, from which a majority of the community dissent, as the rents and profits of the glebes must be considered as an annual stipend paid by the commonwealth to the ministers of the protestant episcopal church ?
If the legislature had thought proper to appropriate the glebes and churches purchased and built, at the expense of all the parishioners, in each parish, for the use of such minister, or teacher of religion as a majority of the parish should choose, without regard to sects or denominations of religion, whether Christian, jew, mahometan or other whatsoever, this article, I apprehend, would not have stood in the way of such a general appropriation. But where one religious society (inferior in numbers to several others, and perhaps to any other) receive exclusively a bounty from the
This interpretation does not, I apprehend, in the least, interfere with, or violate that fundamental principle of our constitution, that private property shall be sacred and inviolable.
The glebes, as such, were never private property. They were purchased at the common expense of the whole parish, and (according to the prevailing maxim of the government at that time) for the common benefit of all the parishioners, without distinction.
The revolution put an entire period to the maxim, that “ mankind may be benefitted by the promulgation of religious doctrines, from which they wholly dissent.”
From that moment, the promulgation of the religious doctrines of any religious sect ceased to be a common benefit to the community.
.. But the incumbents of the respective parishes had acquired legal rights, under the existing laws, which the legislature were too just to violate. A life, or lives in being, would not long retard the operation of any plan, which might be recommended by the change of constitution, and of principle, which had taken place. Besides, those incumbents, who, upon the faith of the existing constitution and laws, had- qualified themselves for the function to which they were elected, and renounced all other pursuits on that account, had acquired a moral right to be continued in the enjoyment of their legal estates, thus acquired.
So far as any act of the legislature has operated for that purpose, it may be considered as pursuing the injunctions of moral justice, and of the first article of our bill of rights. Beyond that point, I conceive every such act to have been void.
If one act of the legislature be void, as repugnant to the constitution, a subsequent act, declaring such repugnant act
The act of 1798, ch. 9, repealing the act for incorporating the protestant episcopal church, and several others relating to the glebes, therefore, is not itself unconstitutional.
The consequence is, that the newly incorporated bodies, incorporated, authorized, and continued by those acts respectively, have no longer any legal existence, being entirely dissolved.
It follows that the plaintiffs, as vestrymen, have not any legal title to the glebe.
It is not alledged that there is any incumbent; and, in the case of Whitechurch v. Hide, 2 Atk. 391, lord Ilardwiclce allowed a demurrer to a bill, which prayed an injunction ; because the plaintiff ought first to have established his title at law. But the plaintiffs, in this cause, claiming no title to the premises, except as vestrymen, or the successors of vestrymen, they have, according to my interpretation of their case, no title at law.
But let it be supposed, that the act for incorporating the protestant episcopal church is not void, upon the ground 1 have taken, viz. as being repugnant to the fourth article of the bill of rights. Even that ground, I conceive, will not avail the plaintiffs, if they claim to be a vestry or trustees under that, or any subsequent law.
For the legislature, at the time of passing that law, either did, or did not, possess the constitutional power of dissolving the former body politic, created for the express purpose of endowing the church by law established, and pursuing the property thereof for the use of the ministers. Acts 1748, ch. 28.
If they did possess the power at that time, there can be nothing shewn, I apprehend, to prove they did not possess an equal power to dissolve the body corporate created by the act for incorporating the protestant episcopal church: And consequently the repeal of that law was equally con
If they did not possess this power, then the act for dissolving the former vestries, and for vesting the property in the church theretofore established by law in the protestant ■episcopal church, was unconstitutional and void; and consequently, any title which the present complainants may make to be a vestry, or trustees, under that act, or any subsequent act, made in support of such their claim, must be wholly illegal, and without foundation.
But it has been suggested that the protestant episcopal church is, in doctrine and communion, if not in constitution, the same as the church heretofore by law established.
If this point can avail the plaintiffs, they must prove it: But this, if I have not been misinformed, it will be impossible, for them to do. For,
1. By the constitution of the church by law established, no minister could be admitted to officiate in this country, but such as should produce to the governour a testimonial, that he had received his ordination from some bishop in England : The constitution of the protestant episcopal church, it is presumed, is satisfied by an ordination in this country, or elsewhere in the United States.
2.. The constitution of the church, by law established, required, that the canons set down in the liturgy of the church of England for celebrating divine service, and administration of the sacraments, be duly observed and kept. And that every minister, before he should be inducted into the parish, should subscribe to be conformable to the orders, and constitutions of the church of England, and the laws there established : Whereas the constitution of the protestant episcopal church (if I have been rightly informed) does not acknowledge the authority of the canons of the church of England, nor require subscription to the thirty-nine articles, nor to be conformable to the orders and constitutions of the church of England, and the laws there established.
3. By the constitution of the church by law established, the parson as parson, was an ecclesiastical corporation, endowed with certain exclusive rights for the purpose of perpetuating that church : But, the principles established by the revolution being incompatible with those rights, the rights themselves were absolutely destroyed by the revolution; and were incapable of revival, so long as our present constitution remains. The protestant episcopal church, therefore, can have no claim on this ground.
Consequently, the protestant episcopal church can have no other claim to the property heretofore belonging to the church bylaw established, than what it derives from the act for incorporating it. And that act, upon the ground I have taken, is either unconstitutional, and void; or, if constitutional, it has been repealed.
But it is contended that the repeal is unconstitutional.
The ground upon which this proposition is founded, I presume is, that a right of property once vested by a legislative act, cannot be divested by a legislative act.
This is bringing us back again to the question, Whether the legislature could constitutionally divest the property heretofore belonging to the church by law established, out of that body politic; and vest it in the protestant episcopal church, as a new and distinct body corporate ? But, in that point of view, I have already decided the question.
Let us suppose, however, that no question could be made on this subject; and that the glebes, throughout the state, had by any'mcans (the constitutionality and legality of which could not be questioned,) revested in the state; and that the legislature had then thought proper to incorporate the protestant episcopal church, and to vest the glebes in a body corporate, for the use of the ministers, would it be compe
If the legislature, without any consideration whatever, but merely mero motu, grant lands to a private person, in his natural capacity, without any fraud, or fault on his part, such donation I hold to be irrecoverable, under the first article of the bill of rights. But where the legislature creates an artificial person, and endows that artificial person with certain rights and privileges, either in respect to property, or other-, wise, this must be intended as having some relation to the community at large ; and the consideration upon which such artificial body was created, or endowed with all, any, or either of its rights and privileges, seems to be examinable, as well by the legislature itself, as by the courts of justice. And if such creation, or endowment, be either unconstitutional, or merely impolitic, and unadvised, the legislature, I apprehend, is competent to amend, or repeal its own act, provided it do not annul, or avoid any private right, which may have been legally acquired by any individual in his natural capacity, under such act: whereas a court of justice can only pronounce the act void so far as it contains any thing, which the constitution of the commonwealth prohibits the grant of.
The legislature, therefore, I conceive, were competent to the repeal of the act for incorporating the protestant episcopal church ; and of all other acts vesting, in that church, the property theretofore belonging to the church by law established, so far as they have repealed them. But if by such repeal they may be supposed to have offered an injury to the legal, or vested, rights of any individual, such rights cannot be affected by the act of repeal: and the parties are still at full liberty to defend those rights in a course of law: nor can it be justly said, that the act prescribes that to be done, which can -be done only in the ordinary course of the administration of justice. For whenever a statute prescribes any thing to be done, all necessary and proper steps are to
Upon the whole, I entertain no doubt of the competent jurisdiction of the court of chancery in cases of this nature, to relieve by granting an injunction, where the complainants exhibit such a title in themselves as in equity ought not to be disturbed. But, in the present case, I think they have failed, altogether, in making out such a case. I am therefore of opinion that the bill was properly dismissed, and that the decree ought to be affirmed.
This is a bill, by the vestry and church wardens of the protestant episcopal church for the parish of Manchester, in the county of Chesterfield, against the overseers of the poor for the said county, and the attorney general. It prays to enjoin the sale of the glebe of the said parish, under the act of January 1802, on the ground, that that act could not deprive the said church, in the said parish, of the said glebe; and on that of the necessity of the court of chancery exercising its preventive jurisdiction. An answer is put in, concurring with the bill, that the glebe in question was purchased, before the revolution, under the act of 1748; that the price paid therefor, was levied, in part, upon persons dissenting from the then established church; and that the said glebe is now vacant. A demurrer is also filed ; for that the complainants, if they have title, have complete and ample redress at the common law. The chancellor allowed the demurrer, and dismissed the bill; from which decree, the complainants appealed to this court.
The important question, presented by the bill and answer, may be considered; 1st. As under the laws existing prior to the revolution ; 2dly. As affected by that event, and the principles of the constitution; or, 3dly. By the operation of the subsequent laws. Under the first view., it is necessary to ascertain with some precision, in whom, and in what degree, the property of the glebe lands, actually resided. In making this enquiry, we must confine ourselves, to the government and the clergy. The vestry and the other members of the church, stand entirely excluded, by the laws of that cera. They had not, under those laws, as I shall presently attempt to shew, a scintilla of title or of direct interest, either in the glebes or salaries. They had only that secondary interest, which is involved in the maintenance of the church, and the services of the minister.' A recurrence to the act-of 1748, as well as the preceding ones, will shew, that the vestries were mere agents for the payment of the salaries, and the purchase and reparation of the glebes. They had a mere naked power in relation to the purchase of the glebes, which terminated on its execution. There could be no motive with the legislature, to give them a further interest, than is above stated, and accordingly none other has been given. On general principles, as between the government and the clergy, it would seem that the entire title to the glebe lands would have been retained by the former. By the establishment of the religion, which took place here, the episcopal became a part of the civil system. There was an union of the church and state, and the ministers of the former, became, in some sense, the servants of the latter. By ánalogy to the tenure of other public servants, the idea of a title to the public lands, by this class of
But, cujus est dare ejus est disponere ; and we are now by a recurrence to the act itself, to see how the property in question has been disposed of. I will premise that there can be no question that the absolute property of the glebes, resides in the government, except so far as it has been granted out, by it. They were purchased, and paid for, by the government, although they were, eodem jlatu, assigned to the clergy. It is no objection to this position, that the price of each glebe, was levied upon the members of each parish. That mode of taxation, although perhaps unequal, was, considering the object in view, at least as justifiable as many other powers recognized and practised at that day. Notwithstanding the force of the general principle before stated, in relation to the general tenure of public servants, which, in a doubtful case, might turn the scale, and which has weighed with the luminous .Mackintosh, in relation to the church lands of France, the words of our act are too strong to be resisted. The words, “ appropriated,” and “ for the use of the minister of such parish and his successors in all times hereafter,” in the act of 1748, are, perhaps, as strong as could be used to convey a property to a body corporate. That body corporate was the minister and his successors, forever. That the ultimate right, however, remained with the government, is evident, not only from the complexion of the act of 1748 itself; not only because there was no necessity, in relation to the policy and object of the government, to make a further grant; not only because an absolute and irrevocable investiture of the church property, would have disabled the government from resuming that property, in the event of its being deemed proper to change the national religion, and substitute another in its stead, a power admitted to reside in the government, and frequently exercised by the English government, in times not very remote; but also,
In trying this question relative to the title of the glebes, it is important to keep in view, in whom the property in the salaries existed.
They certainly existed in the ministers, and not in the members of the church. On general principles, there can be no reason to differ the titles to the two subjects : to give the one to the members of the church, while the other belonged, exclusively, to the minister. The only difference which could arise between the two, would result from the different natures of the subjects. The salary for one year when earned, became the absolute property of the minister ; and, in like manner, the profits of the glebe, for the time past-became a property: but the profits or enjoyment thereof, in future, notwithstanding the words of the act of 1748, stands only on a common ground with future levies of salary. I speak now only with reference to the essence of the title, and the power of the legislature : the technical title of the ministers, to the glebe lands, was, by the terms of that act, paramount to every other influence. In the
If, then, these two rights are on the same foundation, had the members of the church a property in the salaries when levied ? Certainly not. They had, indeed, some interest therein : that secondary and remote interest, however, which arose from the continuance of the church, and the support of its ministers. They had an interest in the receipt by another, not themselves, of the annual stipend. This is a species of right, which cannot be dignified with the name of property: a species, which is no ground for the interposition of a court of justice. It is a species of interest which is even below the dignity of a “possibility;” for, by no possibility, could the members of the church receive a shilling of the salary. The case is precisely the same with the glebe lands. The minister had a right to hold them. He had an express right even to bring an action of trespass against those who intruded on his possession; the vestry and members of the church not excepted! That vestry and those members had, however, some interest in those lands; an interest consisting in their enjoyment by another ; an interest inferior to a mere “ possibility.” How long has it been discovered, that A. can maintain his claim to the property in a subject, by shewing that B. only is entitled ? This is a new species of right for the first time set up in a court of justice. If the right of B. which is the principal,
This species of interest is not peculiar, nor novel, in this, or any other country ; it runs through every class of public servants, and exists in all the people in relation to all of them. It is, however, no interest whereon a recovery can be founded in a court of justice : it is the officer only and not the people, who has a title. The title then, of the glebe lands, existed at the most, in the established minister and his successors, as a sole corporation, by donation of the govern
2d. In the second place, I will consider the effect of the revolution, and the principles of the constitution, upon the subject in question : when 1 speak of the effect of the revolution, I know I stand upon an important ground. I know, also, the danger of different inferences being drawn, from this source, owing to the different media through which they
Much has been said, in this cause, of the identity of the protestant episcopal church, in relation to our ante-revolutionary church. I am not disposed to cavil about names, or about trifles. I admit this identity in its fullest extent, in respect to the component members of the church, and its doctrines and discipline. But there is no identity of character between the two. That church, formerly paramount and triumphant, has now taken its just and equal station with other religious societies. Its quality, as a national church, in consideration of which, the grant of the glebes was made, no longer exists. The grantee, in respect of that essential character, is dead, is extinguished, is gone. As in the common case of a grant to A., tenant of the manor of Dale, the grant ceases when such tenancy ceases; so here the grant faileth, by the extinction of that character of the grantee, which alone induced the grant. Notwithstanding my admission, as above, respecting identity, the presbyterian society may as well set up this claim, as the society in question : in relation to that character, which induced the grant, it is as much the same society, as is the protestant episcopal church. It is a quibble to say, that this grant was not bestowed in this character, totidem verbis. That clergy then stood only in the character of an established clergy. As a national church, some semblance of justification may be found, for its endowment with public property. But even the enormities of those times, do not justify an appropriation of the property of the people, to the use of particular individuals or societies. There is no conceivable ground, which can justify such a conduct, in the government; and the want of such irresistibly determines the character of the grant. In opposition to such principles, it is at least incumbent on the appellants, to shew the endowment to have been made to the clergy, in their particular character. But this cannot be done: the words and complexion of the grant itself, confronts that idea, and supports the general principle.
• The important effect now supposed, has been wrought by the revolution. The property in question, for want of an adequate grantee, has reverted to the grantor. If you please, the corporate character of the grantee is destroyed, by the effect of the revolution : it is destroyed, to say the least, as to, property taken from strangers to the established church, by coercion, and held from them by violence: it is destroyed, '4&‘textile subject in question: That memorable event has tumbled-to the ground, the then national church, together with' its colleague, the government: It has not tumbled to the ground, and I trust never will, the pure and excellent •system of that church, considered as a society of Christians; but that towering and powerful hierarchy, whose progress was not to be arrested, by even the mild and tolerant principles of the episcopal persuasion: that overwhelming hierarchy, which levelled to the dust, every vestige of religious liberty!
Let me not be supposed, sir, to denounce this hierarchy, with too much severity. Is it not known to every sciolist in our laws, that it procured the enaction of a statute, for silencing, and even banishing non-conforming ministers? Is it not known to every member of this court, that even in the dawn of our struggle against Britain, for civil liberty, many meek and pious teachers of the gospel were imprisoned, persecuted, and treated as criminals ?
The revolution, however, has brought down this powerful hierarchy to the standard of free and equal government: the cause of the grant has ceased ; and it becomes unlawful for the church or corporation to act up to the end for which it was established. In this view, of a reversion of the glebe lands, to the government, for the benefit of the people, any after disposition or continuation of them, by law, or by construction, to the use of a particular society, is, in fact, equally with the levies of salaries, a coercive contribution' from the dissenters : it stands precisely on a common grfuWl. with such levy : it is, equally with it, iu the teeth of tWÍbill of rights: it is moreover equally with it in direct with the noble principle, declared in the preambleloLthe act of November 1776, which I shall presently partrcularlj recite.
It is urged on us, with great vehemence, by the appellants’ counsel, that this is a vested right, and not to be divested, even by the effect of the revolution. I shall not be among those, who assert a right in the government, or even in the people, to violate private rights, and perpetrate injustice. The just end and object of all governments, and all revolutions, reprobate this idea. I trust I shall not be more tardy, than those who are more loud and clamorous, to respect the vested rights of individuals, or societies. My sentiments on this subject have been heretofore delivered in this court, and particularly in the case of Lyell v. Elliott, quoted by the appellants’ counsel. I mean not to retract one iota of what I then said, in relation to this subject. But the question here is, in whom the property in question is
This last idea is outrageous, and deeply affects the expediency, almost under any circumstances, of asserting the right of reform and revolution. ' A very familiar and analogous case occurs, to exemplify ipy ideas. By the Virginia constitution, our judges hold their offices and salaries, during good behaviour. They cannot, during the existence of the constitution, be deprived of either, without a breach of such behaviour. But if the people choose to reform the government, and render their services unnecessary, no man will contend that they shall receive their salaries for nothing : none will contend, that these men remain judges, or retain their salaries, in that event, although the new judiciary system, be precisely similar to the old : none will assert, that for the sake of perpetuating to those officers, their emoluments, a system of government shall be kept up, which is injurious to the interests and hostile to the wishes of the people. But the case in question, although it has received, did not require, the intervention of a revolution to effect an
It remains lastly to consider the effect of the laws posterior to the revolution, upon the question before us. The act of November 1776, in the clause so much relied on, (if my view of the subject is right,) is in direct hostility, not only with the spirit of the bill of rights, but with the spirit declared in its own preamble. That preamble recites, “ that it is contrary to the principles of reason and justice, that any should be compelled to contribute to the maintenance of a church, with which their consciences will not permit them to join, and from which they can, therefore, receive no benefit.” This inconsistency, considering its illustrious parentage, could only have arisen, from the embarrassment in which that legislature was placed, according to the information of one of the appellants’ counsel in the former argument; from the duress, I had almost said, under which they then stood ; and from the necessity they were then under, to eventuate in some such act as that, as the “ price of peace,” between the contending parties. This pressure, however, did not compel them, as there was no necessity for it, to renounce in their preamble, principles, which, as members of the convention, they had so nobly and recently established. Not in the least doubting the in
The same gentleman, in different parts of his argument, considers the act of November 1776, both as an exposition of the constitution, touching an existing right, and as a compact. These positions are incompatible. A compact by the force of the term, imports a new right, and not the continuance of the old. The gentleman may choose between the two positions, but he cannot occupy them both, at the same time. For my part, I rather consider that act as a compact; not, however, a valid one, for want of power in the legislature to endow a particular sect, with public property. It reserves to the “use of the church by law established,” the several glebes, which had been originally given to the use of the ministers. To pass by the glaring misapprehension of this legislature, in point of fact, already noticed, that an “ established church” still existed, this act loses sight of the titles of the ministers before stated, and enlarges the secondary interest of the members of the church into a direct title. It takes a new ground, by depressing the title of the former owners, and exalting that of a new set. It goes much further than the act of 1802 goes, and is a full justification of the power assumed by that act. It
These same admissions and consequences, also grow out of the incorporating act of 1784; and that act is a great authority, being predicated on the petition of the episcopal church itself. How then can these laws, creating a new right and invading a former one, be considered as a legislative exposition of the constitution touching an existing right ? I have chosen to state that right as it really was; that is, as existing only in the ministers: but it is wholly immaterial, in my view, whether the grant was to the ministers, or to the church: in either case the granted property has equally reverted : the then character of the church, as well as that of its clergy, has expired with the revolution.
If it be said that the acts of 1776 and 1784 have forestalled the act of 1802, by investing the glebes in the protestant episcopal church, I answer that the bill of rights had previously forestalled them, by interdicting grants of public property to individuals or societies, except in consideration of public service: and by inhibiting the legislature from favouring or endowing one religious society in preference to others. The act of 1802 has only put aside the infractions of the constitution, contained in the two former acts. While we are upon the subject of cotemporaneous exposition, why
In expounding the acts of the convention of 1776,1 have adhered to those instruments themselves. I reject all extraneous sources of information. I reject them, in relation to the bill of rights, because those ephemeral circumstances do not apply to great principles, pertaining to our latest posterity. I would receive, with more caution, the legislative exposition of the constitution, contained in the act of November 1776, because the dignity of legislative exposition is lessened, if not lost, when the legislature enacting and expounding is the same. Such an exposition, considered as a judicial decision, seems to contravene great principles. It "contravenes that principle requiring a separation of the legislative and judicial departments. The effect of this principle reaches every legislative exposition, more or less; but an union of the powers of passing and executing laws in the same persons, forms no contemptible definition of despotism. But although I deem it right to reject all extraneous information in forming ray conclusion upon the constitution, I have, as a matter of curiosity, examined the journals of the convention touching the present subject. I can find in them nothing varying the construction, arising from the instrument itself. In the session of the convention, only one solitary petition on the subject of religious rights was presented. The grievances of the dissenters, great as they were, seemed lost in the greater grievance of America. But
It has been said that the petitions of the dissenters, in November 1776, did not point to the glebe lands, but only to an exemption from salaries. I think some of those petitions are sufficiently general, and very strong. But if it were otherwise, I am sure there is nothing in the temper of this court, which will repudiate the dearest rights of the people, because, in the first moments of their acquirement, they were ignorant of their existence. The great, though simple principles on which my opinion in the present case is founded, make it unnecessary to pursue the appellants’ counsel through all the technical and secondary learning, with which they have obscured it. They must excuse me, but I do not think that doctrines of this class, are to decide the fate of this question.
The same consideration induces me to pass over, the remaining acts of assembly, relative to this subject, passed since the revolution. Such of them, as go, to vest, or admit, a title, in the episcopal church, are susceptible of the answers just given to the more important acts of 1776 and
We were exhorted by one of the appellants’ counsel, at the former argument, and the substance is repeated in the last, “ to put deism to flight, and restore the altars of our forefathers.” If there is a league, of deists or others, in the legislature or elsewhere, to overturn religion, or impair morality, it is to me a subject of the deepest regret. I can never cease to believe, that these are the firmest pillars of civil society, the surest basis of human happiness. For myself, 1 am now called to discharge a painful duty. That duty must not be obstructed, by any sympathies, or partialities of mine. While sitting in this seat, the stern maxims of judicial independence, scarcely permit me to recognize in the respectable society now before us, the revered patron of my early youth, the depositary of my best wishes.
We have no doubt as to the jurisdiction. For it is, in substance, a bill of quia timet, brought to protect a whole society against disturbance, under colour of a statute, alledged to be unconstitutional ; and to prevent injury to its property, in consequence of the sales, and the multiplicity of suits, which would follow from them. These are all proper objects for the interference of a court of equity; and sustained the jurisdiction of the chancellor.
We are equally clear upon the merits. For it has been frequently decided by the court, that unconstitutional laws are void; and we think the statute, now under consideration, is of that class.
It is a mistake to suppose, that the church, here, was identified with that of the mother country, and had no capacity to hold lands.
By these, the church was organized, and glebes ordered to be purchased for the use of the ministers and their successors, forever. Old Virg. Laws, 2, 3, 4, 251. Which vested those lands exclusively in the established church : for although the price was assessed upon the parish at large, it was done by the legislative authority, at that time supreme: And the power to purchase, created a capacity to hold. For qua,ndo aliquid conceditur, conceditur et id sine quo res ipsa uti non potest. 11 Co. 52. Hob. 234. Cro. Jac. 170,190.
The question then is, what effect the revolution had upon the property of the church ?
It was contended by the counsel for the appellees, That, if the church had capacity to hold lands before the date of independence, that event destroyed it; and that, upon the^ dissolution, the glebes devolved upon the commonwealth. But revolutions are intended to preserve, not to take away rights: Nor was it ever pretended, that an alteration, in the form of a government, affected private property. Such a consequence would prevent all revolutions, as no set of men would ever unite in a measure productive of such fatal effects; and therefore we unhesitatingly pronounce, that the revolution did not produce that result.
A distinction was attempted, however, between a natural person and an artificial body: The right of the first being admitted ; that of the latter denied : But there is, in fact, no such distinction. For property being a civil institution, the right to it is, in all cases, conferred by law : Which applies as forcibly to a society, as to an individual; and the change of a government no more affects the claims of the one, than those of the other.
But to obviate this, it was urged, That, although the revolution did not produce the effect directly, it did indirectly; and the reasons assigned for it were, 1. That the society
Neither of these propositions is true :
Not that which relates to the abolition of the kingly office.
1. Because the king was not an integral part of the established church. For he was never declared to be so by any law; and he exercised no acts with regard to the institution, except as one of the component parts of the general legislature of the colony.
2. Because a society is not dissolved by the destruction of one of its parts, unless the capacity, to produce the end of its association, ceases. Grot. B. 2, ch. 9. Puff. B. 8, ch. 12. 2 Ruth. Inst. 637, 638. Which is agreeable to the doctrines of the common law. For no case decides that the loss of one' of its integral parts will destroy a corporation, if the rest can proceed without the lost member. On the contrary, it is only when such an integral part is gone, as, without its existence, the functions of the society cannot be exercised, that the corporation is dissolved for any purpose. Rex v. Pasmore, 3 T. Rep. 199. Bracken v. The College, 3 Call, 575. But the whole organization of the church, its competency to transact its affairs, and the entire polity of the body remained the same after the revolution, as before; and consequently that event did not affect it.
Not that with respect to the sixteenth article of the bill of rights:
Because there is nothing in that article, which forbids the continuation of the establishment, or the incorporation of religious societies. For the whole relates to the rights of conscience, and the mutual charities which men owe each other.
Not that with respect to the fourth article of the bill of rights:
2dly. Because the whole article, according to grammatical and legal construction, relates to magistrates, legislators and judges only.
For, in the first place, the words, “public services,” are equivocal, as they apply not only to officers concerned in the general administration of government, but to subordinate agents, acting for the benefit of the community also; as, for instance, to public teachers, and other occupations, conducive directly, or indirectly, to the public benefit. And, although this particular church was not the only one in the state, and therefore so far the right might be said to be partial, yet that forms no objection to the principle, as similar benefits may be conferred on the rest, so as to produce general equality. For the grant of a small piece of land to any religious so
But, independent of this, the remark is correct, that, in political language, emoluments and privileges most naturalJy apply to the rewards given to those concerned as officers of government, in the general administration of public affairs : and that they were so understood, in this article, is obvious. For they are connected with the words public services;
3dly. Because any other construction would be attended with the most inconvenient consequences, as it would take, from the legislature, the power of making a gift either to a community, or an individual, unless engaged in some public service, although the occasions of society often require le
Upon no. sound construction, therefore, of the bill of rights, compared with the laws antecedent to the revolution, can the church be considered as dissolved by that event, or divested of its property, in consequence of it: and the uniform' interpretation and practice of the country have been agreeable to this opinion.
In support of that proposition, we refer, in the first place, to the transactions, at the period of the revolution, relative to the church: which we aré enabled to state with more confidence, as one of us was a member of the convention, that framed the bill of rights and constitution.
On the 20th of June, 1776, the baptist society petitioned for freedom of worship; but made no complaint as to the glebes.
On the 29th of that month, the constitution was prepared, without any exception, from any quarter, to the church establishment.
On the 4th of July, 1776, independence was declared; and, on the next day, the convention proceeded to reform the book of Common Prayer, and made sundry alterations in the litany and prayers.
On the 7th of October, 1776, the same convention, without any new election, met the senate, in general assembly; and took into consideration, the petitions of the dissenting sects against the church establishment, with the counter petition of the church. The whole was discussed, at large, in both houses, and resulted in the act, of October session Í776, ch. 2, authorizing vestries to make assessments, upon the parishes, for the discharge of past engagements, and the maintenance of the poor; and settling the right of the church to the glebes. Chan. Rev. 39.
This contemporaneous exposition, by those who framed the constitution, was followed by the incorporating act of 1784, ch. 87; by that of 1786, ch. 12, which reserved, to each religious society, the property belonging to it; and by
As far, then, as construction and practice, both ancient and modern, can settle any question, this appears to be settled.
But it was said, that neither the convention, nor the legislature, could alter the constitution; or give it a meaning which the words would not bear.
To which we answer,
1. That if that position were true to the whole extent, it would not affect the case; because we have, already, endeavoured to shew, that the construction and practice were in strict accordance, with the intent and letter of the instrument ; and, therefore, that the case, supposed by the position, does not exist on the present occasion.
2. That the constitution, and the subsequent acts of the convention, stand upon the same ground. For both depend upon the acquiescence of the people, as the convention was not deputed to make the constitution; or to pass laws under it; and, therefore, if the people acquiesced under the constitution, they acquiesced in the interpretation also.
3. That written constitutions are, like other instruments, subject to construction; and, when expounded, the exposition, after long acquiescence, becomes, as it were, part of the instrument; and can, no more, be departed from, than that. The Commonwealth v. Caton, [4 Call, 5,] and The Case of the County Levy, [5 Call, 139,] cited by the appellants’ counsel.
4. That it is unimportant, therefore, whether the legislature can, or cannot, now, bestow other property, upon religious societies; for, either way, their contemporaneous and subsequent decisions amount to so many recognitions of the first interpretation by the convention, that the church continued ; and that the then existing glebes belonged to it. Which, as before observed, makes, in effect, the construction, as to those subjects, part of the instrument.
But what would have been the effect, upon the property, had there been a dissolution of the church, as a body politic? whether, it would have returned to the vendor ? would have remained, with the followers of the church? or would have continued in the grantees, named in the deed, to the use of those followers, or to the use of the grantees themselves, in case no trust remained for the followers ? is perhaps uncertain : But there seems to be very little room to suppose, that it would have devolved, upon the commonwealth. For, as the legal estate would have stood in the trustees, it "could only have been called out by a bill in chancery; and the state would have had no equity against those members of the church who claimed it, for the original object of the grant. It is unnecessary, however, to examine that question ; because the cases cited, by the appellants’ counsel, prove, that no alteration, either in the name, or in the form of a corporation, dissolves it; and much less, in a case like this, where the change was made, at the instance of the church, in order to strengthen its rights, and preserve its capacities.
Upon the whole, we think, that the church had a right to the glebes, at the date of the revolution ; that, that event had no effect upon the title; that nothing has happened since to divest it; that the act of 1802 is unconstitutional; and that the injunction ought to have been awarded. But, as the other judges are of a different opinion, the decree
Memorandum.—The above case had been argued at a former term ; and, during the succeeding vacation, Mr. Pendleton, then president of the court, and who sat in the cause, prepared his opinion in writing, (which the reporter has seen,) that the glebes belonged to the proteslant episcopal church; and that the act of 1802, was unconstitutional. But the opinion was not delivered, as he died the night before it was to have been pronounced.
Mr. Randolph.