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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 corporation or individual to his or its own property. The dissolution of the form of goverument 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 established 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 ou 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 ötatute 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 foriner 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 church wardens,) 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 inade 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, 6.
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 church wardens and their successors; for their successors, as such, could not take; nor to the church wardens in their natural capacity, for “ heirs” is not in the deed. But the covenant of general warranty in the deerd binding the grantors and their heirs forever, and warranting the land to the church wardens and their successors forever, may well operate by way of estoppel to confirm to the Church and its privies the perpetual and beneficial estate in the land.
One difficulty presented on the face of the bill was, that the Protestant Episcopal Church of Alexandria was not directly averred to be the same corporate or unincorporate body as the church and parish of Fairfax, or the legal successors thereto, so as to entitle them to the lands in controversy. But upon an accurate examination of the bill, it appears that 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
as true that there was no other Episcopal church in the parish; and that the property belonged to the Church of Alexandria, which, in this respect, represented the whole parish. And there can be no doubt that the Epis. copal members of the parish of Fairfax have still, notwithstanding a separation from the State of Virginia, the same rights and privileges as they originally possessed in relation to that church while it was the parish. church of Fairfax.
The next consideration is, whether the plaintiffs, who are vestrymen, have, as such, a right to require the lands of the church to be sold in the manner prayed for in the bill. Upon the supposition that no statutes passed since the Revolution are in force, they may be deemed to act under the previous statutes and the common law. By those statutes the vestry were to be appointed by the parishioners “for the 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 purposes, and for the more orderly managing all parochial affairs;” out of which vestry the minister and vestry were yearly to choose two church wardens. As incident to their office of general guardians of the church, we think they must be deemed entitled to assert the rights and interests of the church. But the minister also, having the freehold, either in law or in equity, during his incumbency, in the lands of the church, is entitled to assert his own rights as persona ecclesiæ. No alienation, there. fore, of the church lands can be made either by himself, or by the parish. ioners, or their authorized agents, without the mutual consent of both And therefore we should be of opinion, that, upon principle, no sale ought to be absolutely decreed, unless with the consent of the parson, if the church be full.
If the statute of 1784, ch. 88, be in force for any purpose whatsoever, it seems to us that it would lead to a like conclusion. If the repealing statute of 1786, ch. 12, or the statute of 1788, ch. 47, by which the Church property was authorized to be vested in trustees chosen by the Church, and their successors, be in force for any purpose whatsoever, then the allegation of the bill that the plaintiffs “have, according to the rules and regulations of their said society, been appointed by the congregation vestrymen and trustees of the said church," would directly apply and authorize the plaintiffs to institute the present bill. Still, however, it appears to us that in case of a plenarty of the Church, no alienation or sale of the Church lands ought to take place without the assent of the minister, uuless such assent be expressly dispensed with by some statute.
On the whole, the majority of the court are of opinion that the land in controversy belongs to the Episcopal Church of Alexandria, and has not been divested by the Revolution, or any Act of the Legislature passed since that period; that the plaintiffs are of ability to maintain the present bill; that the overseers of the poor of the parish of Fairfax have po just, legal, or equitable title to the said land, and ought to be perpetually enjoined
from claiming the same; and that a sale of the said land ought, for the reasons stated in the bill, to be decreed, upon the assent of the minister of said church (if any there be) being given thereto; and that the present churchwardens and the said James Wren ought to be decreed to convey the same to the purchaser; and the proceeds to be applied in the manner prayed for in the bill.
The decree of the circuit court is to be reformed, so as to conform to this opinion.
John RANDOLPH's RECANTATION.
NORFOLK, April 8, 1857. MR. JOHN RANDOLPH, of Roanoke, was at one time deeply impressed with religion, and in a pious frame of mind revised his copy of Gibbon's History of the Decline and Fall of the Roman Empire, which he had filled with notes approving the deistical views of the historian. These notes, or most of them, he obliterated, and on the celebrated fifteenth chapter, in which the historian gives an account of the rise of Christianity, on either side of the text of several pages, he wrote the following remarks, which I
from the book before me:“When the pencilled notes to this and the succeeding chapter were written, (and, indeed, all the notes, one excepted in volume tenth, page —) the writer was an unhappy young man, deluded by the sophisms of infidelity. Gibbon seemed to rivet what Hume and Hobbes and Bolingbroke and Voltaire, &c. had made fast, and Satan—i. e. the evil principle in our (fallen) nature—had cherished; but-praised be His Holy name!—God sent the sense of sin and the arrow of the angel of Death, “unless ye repent,' straight to his heart, and with it came the desire of belief; but the hard heart of unbelief withstood a long time, and fear came upon him and waxed great, and brought first resignation to his will, and after much refractoriness, (God be praised, but never sufficiently, that he bore with the frowardness of the child of sin, whose wages is death,) after a longer course of years, more than the servitude of Jacob for Rachel, God in his good time sent the pardon and the peace which passeth in the love which struck out fear. Allelujah."
The above is a true transcript from the original pencilled remarks of Mr. Randolph. His copy of Gibbon is in twelve volumes, printed in Dublin in 1784. The book belonged to Richard Randolph, the elder brother of John, and has Richard's name in it, with the endorsement “Matoax, 1790."
Hugh B. GRIGSBY. To BISHOP MEADE.