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upon another, it required no small skill in casuistry to prove that similar conduct was righteous in a State.
As to the second argument, it was said in reply that the question of permitting the Church to retain the property was one of right, founded on law, which republics were emphatically bound to respect. That by the very law which released Dissenters from all taxes to support the Episcopal Church, the Assembly of Virginia had pledged its legislative faith-the most solemn pledge and firmest sanction which a free State could give—that the property in dispute should "in all time coming" be saved and reserved to the use of the Episcopal Church. That to order a sale of property thus solemnly reserved would tend to sap the foundation of those rights by which property in general is held, introduce into the Acts of the Legislature instability and uncertainty, exhibit a fluctuation in law unprecedented in Virginia, and overturn that confidence and security which the citizens of a republic should always feel in the stability of purpose avowed by their selected representatives. It also said that, if pre-eminence and superiority in the Church were evils justly dreaded, a declared preference for any other religious denomination was no less to be deprecated; and that, if the glebes were sold to gratify any sect or party, a distinction would be so far manifested in its favour, and would tend to furnish it, in this patronage of the State, with the means of establishing its own creed upon the ruins of every other.
To the argument of unconstitutionality as deduced from the Declaration of Rights the answer was that "the community" under the Government established after the Revolution certainly had granted to the Church no exclusive emoluments," for it had granted nothing: it had only confirmed to the Church that which she had and owned and enjoyed for more than a century before. But, in truth, the fourth article of the Declaration of Rights had no bearing upon the question, as was evident when the whole of it was viewed together. The article declared "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; which, not being descendible, neither ought the offices of magistrate, legislator, or judge, to be hereditary,”—thus showing simply an intention to prevent hereditary honours, offices, or emoluments in the civil government.
These are the principal arguments and answers which from time to time were presented to the Legislature upon the question of a sale of the glebes generally there are to be found also among the memorials and remonstrances some which concern the sale of a glebe in some particular parish only; and these afford additional considerations for and against the measure, founded upon the peculiar circumstances of each case, and possessing no general interest.
Bishop Madison, in the exercise of the discretion confided to him by the Convention of 1796, submitted to the Legislature of that year the memorial touching the sale of the property of the Church. It was not
acted upon by the Assembly; but the subject, according to some former precedents in matters concerning the Church already recorded, was submitted to the consideration of the people. Episcopalians began now to think that their only mode of saving the glebes was, if possible, with the concurrence of the Legislature, to draw the determination of the question from before that tribunal and submit its decision to the courts of law. With the concurrence of the standing committee, the Bishop therefore resolved to obtain professional advice, and an opinion was sought at the hands of some of the ablest jurists of Virginia. Bushrod Washington, Edmund Randolph, and John Wickham were consulted, and, as the result of their deliberations, stated:—
1. That the Protestant Episcopal Church was the exclusive owner of the glebes.
2. That so far was the title of the Church from being impaired by the Bill of Rights, that on no sound construction did they clash; but that the title of the Church stood upon precisely the same grounds with the rights of private property, which had been recognised and secured by the principles of the Revolution and by the Constitution.
3. That any question concerning the right of property in the glebes could constitutionally be decided by the judiciary alone.
Having obtained this opinion, the Bishop called together the Convention in December, 1797, and, in his address, directing their attention to the Church property, laid before them the opinion just recited.
The Convention appointed a committee to attend the discussion of their memorial before the Legislature, and instructed them to propose to that body that the controversy should be submitted to the decision of a proper tribunal of.justice.
The task becomes truly painful of following through the ecclesiastical records of this period the gradual but sure descent of the Church from level to level, each a little lower than the former, and of witnessing effort after effort made in vain by her few remaining friends to stay her downward course. The picture presented by the Bishop, in one of his addresses about this time, offers to our contemplation a suffering clergy, temples in every stage of dilapidation and decay, and an increasing indifference to the interests of the Church, which told too plainly that the protracted struggle was fast driving Churchmen into the hopelessness of despair.
The last Conventional effort of which we have any record was made in 1799. By a resolution of that year, the Bishop was directed to employ counsel to defend the rights of the Church before the judiciary whenever it should be deemed most proper to bring the question before it; and it is to be presumed that the Church now sat down in patience to await the blow which probably was seen by all to be inevitable. The crisis came at last; and on the 12th of January, 1802, the Legislature passed the law by virtue of which the glebes of Virginia were ordered to be sold for the benefit of the public. The warfare begun by the Baptists seven-and-twenty VOL. II.-29
years before was now finished: the Church was in ruins, and the triumph of her enemies was complete.
If there should be those who are disposed to view this law as an illegal encroachment upon the vested rights of the Church, it is proper to remind them of the reasons which satisfied those who enacted it that they were doing right. They supposed that from the beginning the property of the glebes was in the people, not in the clergy; and that, as the number of Episcopalians in the parishes which remained was not a majority of the people, therefore no injustice was done by the Act in question. Many who voted for the law felt compelled to do so by the force of popu lar opinion.
It was not long after the passage of the Act of 1802 before the Church found it necessary to bring the constitutionality of that law before the proper tribunal for consideration. This was done in the year 1804, in the celebrated case of Turpin et al. vs. Locket et al., commonly known as the Manchester case. The defendants, as overseers of the poor, had undertaken to sell the glebe-lands of the parish of Manchester, under the Act of 1802, and the plaintiffs who were the churchwardens and vestrymen-filed a bill in Chancery to prevent the sale by an injunction.
The cause finally, by an appeal from the decree of Chancellor Wythe, came before the Court of Appeals,—the highest tribunal in Virginia,— which at that time was composed of Judge Pendleton, the President, with Judges Carrington, Lyons, Roane, and Fleming. The last-named gentleman, however, did not sit in the cause, because he considered himself interested in the decision.
As the principles involved in the case were of great importance and the property of the glebes was of much value, it may readily be supposed that the cause excited a deep interest; and, after an elaborate argument, the court declined then giving an opinion and held it under advisement. In the vacation which succeeded, Judge Pendleton prepared his opinion in writing. It was, that the Act of 1802 was unconstitutional, and that the glebes belonged to the Protestant Episcopal Church. But, on the night before the opinion was to have been pronounced, Judge Pendleton died; and, as Judges Carrington and Lyons were both known to be of a similar opinion, the judgment of the court, but for the death of its President, would have been rendered on the next day for the Church.
After the death of Judge Pendleton, Judge Tucker was appointed to succeed him, and the cause was again argued. The grounds taken were briefly these:-On the part of the defendants it was argued :-1. That if the Church had power to hold the glebes before the American Revolution, that event destroyed such power; and, upon a dissolution of the former political system, the glebes devolved upon the Commonwealth.
To this it was answered that, by various legislative acts adopted after the change in government, the very framers of the Constitution who adopted these acts conclusively showed that they did not suppose the Revolution had de
stroyed the Church: thus, on the very day after the declaration of independence, the Convention of Virginia altered the Book of Common Prayer, to accommodate it to the change of affairs; and it should here be added that Judges Carrington and Lyons-both of whom were members of the Convention of Virginia-declared in their opinion that the destruction of the Church was not supposed at the time to have resulted from the change of government. It was also answered that revolutions are intended to preserve rights, not to take them away; and that alterations in the form of a government do not affect the rights of private property.
2. It was urged that a distinction obtains between a natural person and an artificial body, such as a corporation; that even admitting the rights of the first to be unmolested by a revolution, yet the rights of the latter are thereby lost.
In reply it was said that, as all property was matter of civil institution, and the right to it was not natural, but in all cases created by law, the ground on which private property was held sacred applied as forcibly to a society as it did to an individual.
3. It was argued that the Church, as a society, lost its corporate existence by the Revolution: first, because the King-one of its integral parts-was gone; secondly, because incorporated religious societies were contrary to the sixteenth article of the Bill of Rights; and, thirdly, because the profits of the glebes were emoluments, which were forbidden by the fourth article.
It was answered that neither of these positions was true.
1. The King never was an integral part of the Established Church, even in England; but, if he were, then a society is not destroyed by the removal of one of its parts, provided enough be left to carry on its operations.
2. The sixteenth article of the Bill of Rights relates simply to the rights of conscience and the mutual charities due from man to man.*
3. The fourth article does not relate to property at all, but to emoluments and privileges subsequently to be created in favour of the great officers of government, and refers to magistrates, legislators, and judges only.
Upon the second argument, Judges Carrington and Lyons still retained their former opinion; Judge Tucker concurred in opinion with Judge Roane that the Act of 1802 was constitutional, and that the glebes might be sold; while Judge Fleming, who was known to agree with Judges Carrington and Lyons, still declined, for the reason before given, to sit in the case. Thus the court was equally divided, and, of course, the decree
*The article is in these words:-"That religion, or the duty which we owe to our Creator and the manner of discharging it, can be directed only by reason and conviction, not by force or violence, and therefore all men are equally entitled to the free exercise of religion according to the dictates of conscience; and that it is the mutual duty of all to practise Christian forbearance, love, and charity toward each ther."
below, from which an appeal had been taken, was affirmed; though it has never yet been determined by a majority of the Court of Appeal in Virginia that the law of 1802 is constitutional.
OPINION AND JUDGMENT OF THE SUPREME COURT WRITTEN AND DELIVERED BY JUDGE STORY IN THE CASE OF THE FAIRFAX GLEBE QUESTION AND IN CONTRADICTION TO THE DECISION OF THE VIRGINIA COURTS.
[IT is not known whether the decision was unanimous, or by what majority it passed. Chief-Justice Marshall was in favour of it, but requested Judge Story to draw up the opinion.]
Other considerations arising in this case, material to the title, on which relief must be founded, render an inquiry into the character and powers of the Episcopal Church indispensable.
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 presuppose the existence of the Episcopal Church with its general rights and 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, seised of the freehold of its inheritable property, as emphatically personia ecclesiæ, and capable, as a sole corporation, of transmitting that inheritance to his successors. The churchwardens, also, were a corporate body clothed with authority and guardianship over the repairs of the Church and its temporal property; and the other temporal concerns of the 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 subject. 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 and church-lands, and the building of a dwelling-house for the minister; for the making of assessments and trades for these and other parochial purposes; for the appointment of churchwardens to keep the