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 popular 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.

No. IX.

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. 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

By

church in repair, and to provide books, ornaments, &c.; and, lastly, for the election of a vestry of twelve persons by the parishioners, whose duty it was, by these and subsequent statutes, among other things, to make and proportion levies and assessments, and to purchase glebes and erect dwellinghouses for the ministers in each respective parish. See statute 1696, ch. 11; 1727, ch. 6; and 1748, ch. 28.-2 Tucker's Blackst. Com. App. note M.

By the operation of these statutes and the common law, the lands thus purchased became vested, either directly or beneficially, in the Episcopal Church. The minister for the time-being was seised of the freehold, in law or in equity, jure ecclesiæ, and during a vacancy the fee remained in abeyance, and the profits of the parsonage were to be taken by the parish for their own use.-Co. Lit. 340, b; 341, 342, b. 2 Mass. R. 500.

Such were some of the rights and powers of the Episcopal Church at the time of the American Revolution; and under the authority thereof the purchase of the lands stated in the bill before the court was undoubtedly made. And the property so acquired by the Church remained unimpaired, notwithstanding the Revolution; for the statute of 1776, ch. 2, completely confirmed and established the rights of the Church to all its lands and other property.

The statute of 1784, ch. 88, proceeded yet further. It expressly made the minister and vestry, and, in case of a vacancy, the vestry of each parish respectively, and their successors forever, a corporation by the name of the Protestant Episcopal Church, in the parish where they respectively resided, to have, hold, use, and enjoy, all the glebes, churches, and chapels, burying-grounds, books, plate, and ornaments, appropriated to the use of, and every other thing the property of, the late Episcopal Church, to the sole use and benefit of the corporation. The same statute also provided for the choice of new vestries, and repealed all former laws relating to vestries and churchwardens and to the support of the clergy, &c., and dissolved all former vestries; and gave the corporation extensive powers as to the purchasing, holding, aliening, repairing, and regulating the Church property. This statute was repealed by the statute of 1786, ch. 12, with a proviso saving to all religious societies the property to them respectively belonging, and authorizing them to appoint, from time to time, according to the rules of their sect, trustees, who should be capable of managing and applying such property to the religious use of such societies; and the statute of 1788, ch. 47, declared that the trustees appointed in the several parishes to take care of and manage the property of the Protestant Episcopal Church, and their successors, should, to all intents and purposes, be considered as the successors to their former vestries, with the same powers of holding and managing all the property formerly vested in them. All these statutes, from that of 1776, ch. 2, to that of 1788, ch. 47, and several others, were repealed by the statute of 1798, ch. 9, as inconsistent with the principles of the Constitution and of religious freedom. And by the statute of 1801, ch. 5, (which was passed after the District of Columbia was finally separated from the States of Maryland and Virginia,) the Le

gislature asserted their right to all the property of the Episcopal churches in the respective parishes of the State; and, among other things, directed and authorized the overseers of the poor, and their successors, in each parish wherein any glebe-land was vacant or should become so, to sell the same, and appropriate the proceeds to the use of the poor of the parish.

It is under this last statute that the bill charges the defendants (who are overseers of the poor of the parish of Fairfax) with claiming a title to dispose of the land in controversy.

This summary view of so much of the Virginia statutes as bears directly on the subject in controversy presents not only a most extraordinary diversity of opinion in the Legislature, as to the nature and propriety of aid in the temporal concerns of religion, but the more embarrassing consideration of the constitutional character and efficacy of those laws touching the rights and property of the Episcopal Church.

It is conceded on all sides, that at the Revolution the Episcopal Church no longer retained its character as an exclusive religious establishment. And there can be no doubt that it was competent to the people and to the Legislature to deprive it of its superiority over other religious sects, and to withhold from it any support by public taxation. But, although it may be true that "religion can be directed only by reason and conviction, not by force or violence," and that "all men are equally entitled to the free exercise of religion according to the dictates of conscience," as the Bill of Rights of Virginia declares, yet it is difficult to perceive how it follows, as a consequence, that the Legislature may not enact laws more effectually to enable all sects to accomplish the great objects of religion by giving them corporate rights for the management of their property, and the regulation of their temporal as well as spiritual concerns. Consistently with the Constitution of Virginia, the Legislature could not create or continue a religious establishment which should have exclusive rights and prerogatives; or compel the citizens to worship under a stipulated form or discipline, or to pay taxes to those whose creed they could not conscientiously believe. But the free exercise of religion cannot be justly deemed to be restrained by aiding with equal attention the votaries of every sect to perform their own religious duties, or by establishing funds for the support of ministers, for public charities, for the endowment of churches, or for the sepulture of the dead. And that these purposes could be better secured and cherished by corporate powers cannot be doubted by any person who has attended to the difficulties which surround all voluntary associations. While, therefore, the Legislature might exempt the citizens from a compulsory attendance and payment of taxes in support of any particular sect, it is not perceived that either public or constitutional principles required the abolition of all religious corporations.

Be, however, the general authority of the Legislature as to the subject of religion as it may, it will require other arguments to establish the position that, at the Revolution, all the public property acquired by the Epis