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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 The same statute also provided for the choice of new vestries, and repealed all former laws relating to vestries and churchwardens and to the support of the clergy, &c., and dissolved all former vestries; and gave the corporation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 This statute was repealed by the statute of 1786, ch. 12, with a proviso saving to all religious societies the property to them respectively belonging, and authorizing them to appoint,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
copal churches under the sanction of the laws became the property of the State. Had the property thus acquired been originally granted by the State, or the King, there might have been some colour (and it would have been but a colour) for such an extraordinary pretension. But the property was, in fact and in law, generally purchased by the parishioners or ac quired by the benefactions of pious donors. The title thereto was indefeasibly vested in the churches, or rather in their legal agents. It was not in the power of the Crown to seize or assume it, nor of the Parliament itself to destroy the grants, unless by the exercise of a power the most arbitrary, oppressive, and unjust, and endured only because it could not be resisted. It was not forfeited; for the churches had committed no offence. The dissolution of the regal government no more destroyed the right to possess or enjoy this property, than it did the right of any other corpora tion or individual to his or its own property. The dissolution of the form of government did not involve in it a dissolution of civil rights, or an abolition of the common law, under which the inheritances of every man in the State were held. The State itself succeeded only to the rights of the Crown, and, we may add, with many a flower of prerogative struck from its hands. It has been asserted, as a principle of the common law, that the division of an empire creates no forfeiture of previously-vested rights of property. Kelly v. Harrison, 2 John. C. 29. Jackson v. Lunn, 3 John. C. 109. Calvin's Case, 8 Co. 27. And this principle is equally consonant with the common sense of mankind and the maxims of eternal justice.
Nor are we able to perceive any sound reason why the Church lands escheated or devolved upon the State by the Revolution any more than the property of any other corporation created by the royal bounty or esta blished by the Legislature. The Revolution might justly take away the public patronage, the exclusive cure of souls, and the compulsive taxation for the support of the Church. Beyond these we are not prepared to admit the justice or the authority of legislation.
It is not, however, necessary to rest this cause upon the general doctrines already asserted; for, admitting that by the Revolution the Church lands devolved on the State, the statute of 1776, ch. 2, operated as a new grant and confirmation thereof to the use of the Church.
If the Legislature possessed the authority to make such a grant and confirmation, it is very clear to our minds that it vested an indefeasible and irrevocable title. We have no knowledge of any authority, or principle, which could support the doctrine that a legislative grant is revocable in its own nature, and held only durante bene placito. Such a doctrine would uproot the very foundations of almost all the land-titles in Virginia, and is utterly inconsistent with a great and fundamental principle of a republican government,-the right of the citizens to the free enjoyment of their property legally acquired.
It is asserted by the Legislature of Virginia, in 1798 and 1801, that this statute was inconsistent with the Bill of Rights and Constitution of that State,
and therefore void. Whatever weight such a declaration might properly have as the opinion of wise and learned men, as a declaration of what the law has been or is, it can have no decisive authority. It is, however, encountered by the opinions successively given by former Legislatures, from the earliest existence of the Constitution itself, which were composed of men of the very first rank for talents and learning. And this opinion, too, is not only a contemporaneous exposition of the Constitution, but has the additional weight that it was promulgated or acquiesced in by a great majority, if not the whole, of the very framers of the Constitution. Without adverting, however, to the opinions on the one side or the other, for the reasons which have been already stated, and others which we forbear to press, as they would lead to too prolix and elementary an examination, we are of opinion that the statute of 1776, ch. 2, is not inconsistent with the Constitution or Bill of Rights of Virginia. We are prepared to go yet further, and to hold that the statutes of 1784, ch. 88, and 1785, ch. 37, were no infringement of any rights secured, or intended to be secured, under the Constitution, either civil, political, or religious.
How far the statute of 1786, ch. 12, repealing the statute of 1784, ch. 88, incorporating the Episcopal churches, and the subsequent statutes in furtherance thereof of 1788, ch. 47 and ch. 53, were consistent with the principles of civil right or the Constitution of Virginia, is a subject of much delicacy, and perhaps not without difficulty. It is observable, however, that they reserve to the churches all their corporate property, and authorize the appointment of trustees to manage the same. A private corporation created by the Legislature may lose its franchises by a misuser or a nonuser of them; and they may be resumed by the Government under a judicial judgment upon a quo warranto to ascertain and enforce the forfeiture. This is the common law of the land, and is a tacit condition annexed to the creation of every such corporation. Upon a change of government, too, it may be admitted, that such exclusive privileges attached to a private corporation as are inconsistent with the new Government may be abolished. In respect, also, to public corporations, which exist only for public purposes, such as counties, towns, cities, &c., the Legislature may, under proper limitations, have a right to change, modify, enlarge, or restrain them; securing, however, the property for the uses of those for whom and at whose expense it was originally purchased. But that the Legislature can repeal statutes creating private corporations, or confirming to them property already acquired under the faith of previous laws, and by such repeal can vest the property of such corporations exclusively in the State, or dispose of the same to such purposes as they may please, without the consent or default of the corporators, we are not prepared to admit. And we think ourselves standing upon the principles of natural justice, upon the fundamental laws of every free government, upon the spirit and the letter of the Constitution of the United States, and upon the decisions of most respectable judicial tribunals, in resisting such a doctrine.
The statutes of 1798, ch. 9, and of 1801, ch. 5, are not, therefore, in our judgment, operative so far as to divest the Episcopal Church of the property acquired, previous to the Revolution, by purchase or by donation. In respect to the latter statute, there is this further objection, that it passed after the District of Columbia was taken under the exclusive jurisdiction of Congress, and, as to the corporations and property within that District, the right of Virginia to legislate no longer existed. And as to the statute of 1798, ch. 9, admitting it to have the fullest operation, it merely repeals the statutes passed respecting the Church since the Revolution; and, of course, it left in full force all the statutes previously enacted, so far as they were not inconsistent with the present Constitution. It left, therefore, the important provisions of the statutes of 1661, 1696, 1727, and 1748, so far as respected the title to the Church lands, in perfect vigour, with so much of the common law as attached upon these rights.
Let us now advert to the title set up by the plaintiffs in the present bill. Upon inspecting the deed, which is made a part of the bill, and bears date in 1770, the land appears to have been conveyed to the grantees as churchwardens of the parish of Fairfax, and to their successors in that office forever. It is also averred in the bill that the plaintiffs, together with two of the defendants, (who are churchwardens,) are the vestry of the Protestant Episcopal Church, commonly called the Episcopal Church of Alexandria, in the parish of Fairfax, and that the purchase was made by the vestry of said parish and church, to whom the present vestry are the legal and regular successors in the said vestry; and that the purchase was made for the use and benefit of the said church in the said parish. No statute of Virginia has been cited which creates churchwardens a corporation for the purpose of holding lands; and at common law their capacity was limited to personal estate. 1 B. C. 394. Bro. Corp. 77, 84. 1 Roll. Abr. 393, 4, 10. Com. Dig. tit. Esglise, F. 3. 12 H. 7, 27, b. 13 H. 7, 9, b. 27 H. 6, 30. 1 Burns's Eccles. Law, 290. Gibs. 215. It would seem, therefore, that the present deed did not operate by way of grant to convey a fee to the churchwardens and their successors; for their successors, as such, could not take; nor to the churchwardens in their natural capacity, for "heir" is not in the deed. But the covenant of general warranty in the dee binding the grantors and their heirs forever, and warranting the land to the churchwardens and their successors forever, may well operate by way of estoppel to confirm to the Church and its privies the perpetual and beneficial estate in the land.
One difficulty presented on the face of the bill was, that the Protestant Episcopal Church of Alexandria was not directly averred to be the same corporate or unincorporate body as the church and parish of Fairfax, or the legal successors thereto, so as to entitle them to the lands in controversy. But upon an accurate examination of the bill, it appears that the purchase was made by the vestry "of the said parish and church" "for the use and benefit of the said church in the said parish." It must, therefore, be taken