There appears in the record a copy of the charter granted by the legislature of the state of North Carolina to the Trustees of the General Assembly of the Presbyterian Church in the United States, which charter was accepted and ratified by said general assembly on the 19th day of February, 1866. The first section of this charter recites "that Thomas C. Perrin, [and others therein named,] and their sucessors," etc., "be, and they are hereby, constituted a body politic and corporate, by the name and style of the 'Trustees of the General Assembly of the Presbyterian Church in the United States,' and by the name and style aforesaid shall be able and capable to take and hold all such estate, property, and effects as may be acquired by gift, purchase, devise, or bequest, to aid and enable the said General Assembly of the Presbyterian Church to undertake and carry on the work of Christian education, of foreign and domestic missions, of the publication of such books, tracts, etc., as are connected with the diffusion of religious literature and learning," etc.; "and all the said estate, property, and effects that shall be acquired by the said trustees and their successors, at any time, shall be held, used, and disposed of according to the direction of the general assembly aforesaid: provided, that the property, real and personal, held or possessed by said corporation, shall not exceed $2,000,000.00." By the fourth section of said charter it is enacted "that, if the general assembly shall establish any committees, boards, or agencies for any of the purposes recited in the first section, the same shall be held and deemed to be branches of the corporation; and if any gift, grant, devise, or bequest shall be made to the Trustees of the General Assembly of the Presbyterian Church in the United States, for the use of such committees, boards, or agencies, the same shall be good and effectual to pass to such objects, whenever the donor, grantor, bargainor, or testator shall name the aforesaid corporation in general terms." with power to supervise the affairs of the whole church, and to institute and direct the agencies deemed necessary and proper for the accomplishment of the church work. In furtherance of the work of the church the general assembly, at an early day, committed parts of its work to certain members selected from time to time for the purpose, and constituted into boards, among which was a Board of Foreign Missions, having charge of the work of missions in foreign lands. Upon the breaking out of the late civil war, the Presbyterians within the bounds of the southern states composing the Confederacy, together with the Presbyterians of Potomac and Winchester, previously belonging to the synod of Baltimore, determined to separate from the Presbyterian Church of the United States of America, and sent commissioners to an assembly which met in Augusta, Ga., on 4th December, 1861, and organized under the name of the "General Assembly of the Presbyterian Church in the Confederate States of America." At the end of the war; this body, at its session in Macon, Ga., commencing 14th December, 1865, changed the name of the church it represented to the "Presbyterian Church in the United States;" and the said church, since its separation in 1861, has been popularly known as the "Presbyterian Church South," or the Southern Presbyterian Church," and the Presbyterian Church in the United States of America, from which it separated, has been known as the "Presbyterian Church North," or the "Northern Presbyterian Church." At the said meeting in Augusta, Ga., in December, 1861, the General Assembly of the Presbyterian Church in the Confederate States of America determined, among other things, upon the "organization of a permanent agency for conducting foreign missions," and in pursuance thereof "resolved, that this general assembly proceed to appoint an executive committee, with its proper officers, to carry on this work, and that the character and functions of this committee be comprised in the folThus, not only at the date of testator's lowing articles as its constitution: Article death, but at the date of his will, and long 1. This committee shall be known as the anterior thereto, there was this corporate Executive Committee of Foreign Missions hand in existence, with lawful authority to of the Presbyterian Church in the Confederreceive and use this and like charitable do- ate States of America.' It shall consist of nations, for the purposes for which the cor- a secretary, who shall be styled 'the secreporation was created, one of which was to tary of foreign missions,' and who shall be carry on the charitable work of foreign the committee's organ of communication missions, and it was to aid in this work with the assembly, and with all portions that the testator made the bequest in ques- of the work intrusted to the committee," tion. In the answer of the trustees, and of etc. "That upon the change of the name M. H. Houston, before referred to, it is said of the church, in 1865, there was a correthat previous to the late civil war there ex-sponding change of the name of this comisted a body of Christians known as the mittee; but as the members of the Presby"Presbyterian Church in the United States terian Church had been accustomed to call of America," which embraced in its mem-the agencies of the church before the corbership citizens of each of the United States. Their system of church government consisted of a session for each congregation, which was composed of a minister and the elders of the congregation, a number of congregations composed a presbytery, and a number of presbyteries composed a synod, usually co-extensive with a state boundary, and all of the presbyteries constituted a general assembly, in which the whole church was represented, and which constituted a bond of union between all the churches, poration 'boards,' the corresponding agencies of the southern church afterwards were frequently called and were popularly known by the name of 'boards,' instead of 'executive committees,' the two being substantially the same thing." In the light of these facts, averred to have been taken from the minutes of the General Assembly of the Presbyterian Church South, and which are in no way controverted, the contention, and the only one raised by the bill, that the bequest in question must be treated as null and void, because of vagueness and uncertainty as to the beneficiary, dwindles into utter insignificance; and, this being the only question raised by the pleadings and evidence in the cause, the case might appropriately end at this point, with a decree reversing the decree of the court below, and establishing the validity of the bequest. But in the argument here new propositions are advanced, and they are both novel and untenable. During the contest between the es tablished church and the dissenters, which ended in the disestablishment, the Episcopal Church, among its frequent memorials to the legislature, presented one on 4th June, 1784, which prayed 'that an act may pass to incorporate the Protestant Episcopal Church in Virginia, to enable them to regulate all the spiritual concerns of the church after its form of worship, and constitute such canons, by-laws, and rules of It seems to be conceded by the counsel for government and good order thereof as are appellees that the bequest in question is suited to their religious principles; and, in one to the Executive Committee of Foreign general, that the legislature will aid and Missions of the Presbyterian Church in the patronize the Christian religion.' House United States, and is therefore a bequest to Journal, 36. This was responded to at the the corporation chartered by the legislature next session, and on the 17th of November, of North Carolina. This proposition no 1784, (House Journal, 27,) it was 'resolved, one will deny; but it is further insisted, and that acts ought to pass for the incorporawith apparent earnestness, that in incor- tion of all societies of the Christian religion porating the Trustees of the General As- which may apply for the same:' and, in sembly of the Presbyterian Church in the addition, the body passed 'An act for incorUnited States the legislature of North Car-porating the Protestant Episcopal Church,' olina, in effect, incorporated the Southern (11 Hen. St. at Large, 532,) which provides Presbyterian Church; that such a corpo- that the ministers and vestries of saíd ration is repugnant to article 5, § 17, of the church shall be a corporation, and shall constitution of Virginia, and is against the manage all the affairs of the said church, policy of her laws. both temporal and spiritual.' This act was The provision of the constitution referred violently assailed, and was repealed at the to reads: "The general assembly shall not October session, 1786, by an act in the folgrant a charter of incorporation to any lowing words: '(1) Be it enacted by the church or religious denomination, but general assembly that the act entitled “An may secure the title to church property to act for incorporating the Protestant Episan extent to be limited by law." One of the copal Church," shall be, and the same is counsel for the appellant corporation, Mr. hereby, repealed, saving to all religious Henry, in his printed argument, gives a cor- societies the property to them respectively rect and valuable historical view of the leg-belonging, who are hereby authorized to islation in Virginia bearing upon and truly appoint from time to time, according to the interpreting this provision in our constitu- rules of their sect, trustees, who shall be tion. He says: "While Virginia was a col- capable of managing and applying such ony the Protestant Episcopal Church of property to the religious uses of such soEngland was established by law, and her cieties; and, to guard against all doubts vestries exercised corporate powers. The and misconstructions; (2) Be it further convention which declared Virginia inde- enacted and declared that so much of all pendent adopted, on the 12th of June, 1776, laws now in force as prevents any religious a bill of rights as the foundation of her gov- society from regulating its own discipline ernment, the 16th section of which declares: shall be, and the same is hereby, repealed.' 'All men are equally entitled to the free ex- 12 Hen. St. at Large, 266. By the said ercise of religion, according to the dictates act of 12th January, 1802, confiscating the of conscience.' Subsequently, by a series of glebe lands, it was provided (see Code 1819, acts which need not be mentioned in detail, vol. 1, p. 81) 'that nothing herein contained the disestablishment of the Episcopal shall authorize a sale of the churches, and Church was made complete, as will be the property therein contained, or the shown by the acts passed January 24, 1799, church-yards, nor in any manner affect any and 12th January, 1802, which will be found private donation made prior to the first in the Code of 1819, (volume 1, p. 78,)" etc. day of January, one thousand seven hun"The act of January 24, 1799, repeals all the dred and seventy-seven, for church and othacts on the statute books relating to the er purposes, where there is any person in Episcopal Church, and declares the act for being entitled to take the same, under any establishing religious freedom, passed De- private donor, nor to affect the property cember 16, 1785, to be a true exposition of of any kind which may have been acquired the principles of the bill of rights and con- by private donations or subscriptions by stitution, and the act of January 12, 1802, the said church since the date last mentook for the public the glebe lands held by tioned.' On the 30th of January, 1806, the church. The constitution adopted in (Sess. Acts, 42,) it was enacted that all 1830 embodied the said act for the establish- previous donations for charitable purment of religious freedom, in section 11 of ar- poses, which were to have been controlled ticle 3, and the constitution adopted Au- and managed by a vestry, should thereaftgust 1, 1851, repeated this in section 15 of er be managed and controlled by overseers article 4, and in section 32 of same article of the poor of the county or town in which provided that the general assembly shall they were to be exercised, and they shall not grant a charter of incorporation to apply the same in such manner as may any church or religious denomination, but have been directed by the donors.' On the may secure the title to church property to 3d of February, 1842, (Sess. Acts, 60,) it was an extent to be limited by law.' The pres- enacted that real estate conveyed for the ent constitution has the same provision up- use and benefit of any religious congregaon this subject. See sections 14, 17, art. 5. | tion, as a place of public worship, should be v.10s.E.no.12-21 held by trustees for such purpose, endowed | nounced the government of the king of Engwith certain corporate powers, and the cir-land to have been totally dissolved by the cuit and superior courts were authorized Revolution, hath substituted in place of to appoint such trustees. At the Revision the civil government so dissolved a new of 1849 the act of 30th January, 1806, and civil government, and hath, in the bill of that of 3d of February, 1842,-the latter rights, excepted from the powers given to enlarged so as to embrace cemeteries, resi- the substituted government the power of dences of ministers, and books and furni-reviving any species of ecclesiastical or ture to be used in public worship or by the church government in lieu of that so disministers, were re-enacted, (chapter 77, §§ solved, by referring the subject of religion 3-15, Code 1849;) and the same provisions to conscience; and whereas, the several have been continued in the Code of 1860, acts presently recited do admit the church (chapter 77,) and in the Code of 1873, (chap-established under the regal government to ter 76,) with the limit of property enlarged. have continued so subsequently to the conDuring the period subsequent to the Revo- stitution, have bestowed property upon lution the legislature has, from time to that church, have asserted a legislative time, incorporated trustees to hold the right to establish any religious sect, all of property acquired and used for different which is inconsistent with the principles of purposes in church work, notably for the the constitution and of religious freedom, education in seminaries of candidates for manifestly tends to the re-establishment the ministry; and on the 8th of March, of a national church," etc. Then follows 1873, (Sess. Acts, p. 116,) certain persons the act, which repeals, by its title, every were incorporated under the style of the statute deemed inconsistent with its pre'Presbyterian Committee of Publication,' amble. one of the committees of the Southern Presbyterian Church, who were authorized to hold and manage all property, real or personal, acquired for the use of said committee, not exceeding two hundred thousand dollars, and one-half acre of land in the city of Richmond, the vacancies in the body to be filled from the members of the said committee of publication. Indeed, the over-ernment the power of reviving any species seers of the poor, authorized to hold certain church property, were a corporation. Code 1860, § 9, c. 51. The validity of the said act of the 8th of March, 1873, was called in question and sustained in the case of Wilson v. Perry, 29 W. Va. 169, and also reported in 1 S. E. Rep. 302." Clearly, this legislative construction of the bill of rights is the foundation of all subsequent legislation in Virginia, whether constitutional or statutory, concerning religion in this state. It, in unmistakable terms, declares that the bill of rights, by referring the subject of religion to conscience, has taken away from the civil gov of ecclesiastical or church government, and that the incorporation of any church or sect is inconsistent with the constitution and bill of rights, and tends to the re-establishment of religion by law, when the policy of the state is to abstain from any interference with the religion of its citizens. In other words, it proclaims, as one of the grand results of the Revolution, that church and state are perpetually divorced, as set forth in the memorable words of the bill of rights, as follows: "Religion, or the duty 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." From this historical review of the legislation touching the subject, it is perfectly clear that it never occurred to the legislature of Virginia that to incorporate church agencies essential to the accomplishment of church work was the same thing as the incorporation of the churches, respectively, in whose interest such corporate agencies have been created and still exist. Indeed, there is nothing in the provision of the constitution in question that could by possibility give the least support to the argument It is plain to the commonest understandthat the bequest in this case is repugnant ing that, in order to the dissemination of thereto. That provision simply forbids Christian truths, the education of men in the incorporation of any church or relig- Christian principles, and the spread of Chrisious denomination, but at the same time it tianity, the churches, of whatever faith or authorizes the legislature to secure the title form of worship, must have for the accomto church property to an extent to be lim- plishment of their great work a secular as ited by law. The constitutional provision well as a spiritual vitality; money and restricting the amount of church property property being essential to Christian eduto limits to be prescribed by law was wise- cation, and to the diffusion of Christian ly designed to empower the legislature to knowledge, literature, and principles. In guard against the too great accumulation order to more effectually secure the great of such property,-- a precaution equally end in view, our government refers the subtaken as regards all corporate bodies cre- ject of religion to the consciences of individated by state laws, and authorized to ac- uals, and leaves each sect to depend for quire and hold certain property for corpo- its support upon free and purely voluntary rate purposes, and having an indefinite ex- contributions. Hence, while all effort to istence. The reason of the restriction to regulate religion by law, or to impose by limits thus to be prescribed is clearly and law any particular faith or form of wortruly stated in the preamble to the said act ship, or to compel any one to contribute to of January 24, 1799, (1 Code 1819, p. 78,) en- the support of any religious sect, is forbidtitled "An act to repeal certain acts, den by the constitution, yet churches or reand to declare the construction of the bill ligious societies are recognized and treated, of rights and constitution, concerning re- though unincorporated, as bodies entitled, ligion, as follows: Whereas, the constitu- under our form of government, to enjoy tion of the state of Virginia hath pro-the benefits of property, which property, like that of all other citizens, whether in- | and holding all such estate, property, and dividuals, associations of individuals, or effects as may be acquired by gift, purcorporations, should be protected and se-chase, devise, or bequest, to aid the General cured to them by law. And it is in recog- Assembly of the Presbyterian Church to nition of this sacred right that our con-undertake and carry on the work of Chrisstitution authorizes, and in the very pro- tian education, of foreign and domestic vision relied on by counsel for the appel- missions, for the publication of such books, lees, the legislature to secure the title to tracts, and papers as are connected with church property to an extent to be limited the diffusion of religious literature and by law. And it was in furtherance of the learning, for the relief of indigent minissame great principle of right that the leg- ters, and the widows and children of deislature of North Carolina incorporated the ceased ministers, and all other benevolent Trustees of the General Assembly of the objects of the church, and of building up Presbyterian Church in the United States, and supporting churches of their faith and the appellant corporation here. It is worse worship in the United States." "And said than idle to contend that the incorporation property is to be held, used, and disposed of said truteess was, in effect, the incorpo- of according to the direction of the general ration of the church. It might almost as assembly aforesaid." Thus the corporation well be contended that because the chief ar- is distinct from the church, and is made ticles of export from the state of North Car- subject to the direction of its general asolina are not the same as those of Virginia, sembly. The duties of the corporation, and many other states of the Union, there- other than the mere details of government fore she is not a qualified member of the incident to all corporations, are confined Union, and is excluded from the benefits of to the management of certain property of the law of comity prescribed by the federal the Presbyterian Church, and under its diconstitution. And it would be equally rection. No control of the spiritual or replausible were it contended that a Virginia ligious affairs of the church is given to the bequest to a citizen of North Carolina would corporation. It is therefore but a legal debe in violation of the said seventeenth sec- vice to secure "the title to church propertion of article 5 of the constitution of Vir- ty," and might, without question, have ginia. been granted by the Virginia legislature, if But, before drawing strained and unwar- domiciled in this state, under said section ranted conclusions from the constitution 17, art. 5 of our constitution. Indeed, as of Virginia, to defeat this bequest to a North already shown, every object of this North Carolina corporation, it would have been Carolina corporation has been approved better to have ascertained, first, that this and uniformly fostered, as shown by nubequest is repugnant to the constitution merous legislative enactments. Take, for and laws of the state of North Carolina. example, the work of Christian education But this impossible task the learned coun- as conducted by our theological seminaries; sel for the appellees did not undertake. The that of foreign and domestic missions, carargument that this bequest is in violation ried on under the act of February 14, 1872, of the Virginia constitution, if it proves incorporating the Board of Foreign Misanything, proves far too much for the ob- sions of the Baptist Church; the publication ject in view. In the light of repeated enact- of religious literature carried on under the ments of the Virginia legislature, incorpo- act of March 8, 1873, incorporating the Presrating agencies for the carrying on church byterian Committee of Publication; the rework, it would prove either that the Vir- lief of invalid ministers and their families ginia legislature has habitually violated afforded by the act of January 16, 1886, inthe constitution by incorporating similar corporating the Trustees of the Baptist church agencies, or that the unquestioned Ministers' Relief Fund of Virginia; the be legislative policy has been to incorporate nevolent objects under the act of March 1, all churches by the incorporation of such 1856, incorporating the Young Men's Chris agencies. Take, for example, the act of Feb- tian Association of Richmond; and numerruary 28, 1854, incorporating the Protest-ous other acts incorporating benevolent soant Episcopal Theological Seminary, pre- cieties, and the acts of assembly are full of scribing as its property limit 250 acres of them. So, too, as to the building up and land and $250,000 worth of property; the supporting churches in the United States, act of December 20, 1855, incorporating which is but a branch of domestic missions, the Union Theological Seminary, belong- and a repetition at home of what is done ing to the Presbyterian Church, and fixing abroad through the agency of foreign mis. the same property limit; the act of Janu- sions. ary 8, 1875, incorporating the Trustees of In the case here the testator does not at the Protestant Episcopal Educational So-tempt to vest in a foreign corporation real ciety in Virginia, and limiting its property estate in Virginia, but makes a simple beto $250,000. Each of these is but a corpo- quest of money to be paid to a foreign cor. rate agency for the accomplishment of poration. It is not pretended by counsel church work; and if the North Carolina act in question is, in effect, the incorporation of the church, the same is necessarily true as to each of them. But the fact is, neither the one nor the other amounts to the incorporation of a church. for the appellees that this corporation is prohibited by the constitution of North Carolina from taking and using the money bequeathed in this case. Indeed, it seems impossible to discover any reason for defeating this bequest which would not equalThe corporators named in the Northly apply had the bequest been to a citizen Carolina act are not described as members of North Carolina. Roy v. Rowzie, 25 Grat. of any church, nor are they authorized to 612, was the case of a Virginia bequest to a exercise any religious functions. The ob- theological seminary chartered by the legjects of the corporation consist in "taking islature of South Carolina. This court held 66 the bequest valid, and Judge MONCURE, de-, the court below, and was insisted on in this livering the unanimous opinion of the court. This court, however, reversed the court, remarked: "Even if it could be said decree of the circuit court on both grounds. that the policy of our law forbids the exe- This objection is so aptly and completely cution of such a trust in this state, there is answered by the Hon. W. W. Henry, of certainly nothing in the policy of the law counsel for the appellants in this case, that of South Carolina, where the trust created we approve and adopt his language. He in this case was intended to be executed, says: Decisions are held to be precedents which forbids it. And, the will having been 'as to points actually in issue between the executed and admitted to probate accord-parties,' (Lewis v. Thornton, 6 Munf. 94;) ing to the law of this state, the domicile of and in the Churchman Case the power of the testatrix, the fund would have to be the court to enforce the bequest as a religpaid over to the foreign corporation, to be ious charity was one of the points in issue. administered according to the law of that Had the learned counsel noticed what state. The authorities cited by the counsel Judge TUCKER said on the subject in Gallefor the appellants fully sustain this propo-go v. Attorney General, 469, he would hardsition. Hill, Trustees, 457, 468, and the cases ly have made the objection. In the case of cited in the notes, and Chamberlain v. Association v. Hart, 4 Wheat. 1, Judge Chamberlain, 43 N. Y. 424, decided in 1871. MARSHALL said that the case might have If the law of Virginia prohibited a bequest gone off on the ground that the action to a theological seminary wherever situate, was not brought by the attorney general, and whether incorporated or not, then, cer- the plaintiffs on the record not having a tainly, such a bequest would be invalid, no right to sue. But he deemed it more satismatter where the object might be located, factory to discuss the case in all its bearwhether in or out of the state." ings. Pages 50, 51. It was objected in Gallego v. Attorney General that the opinion of Judge MARSHALL was therefore extrajudicial. On this point Judge TUCKER said: 'I do not consider it extrajudicial. The question discussed fairly arose, and was properly decided, after having been laboriously examined.' And so it must be held as to the doctrine of religious charities in this case." We have, therefore, not only the legislative, but the judicial, interpretation standing solidly against the position assumed by counsel in respect to said seventeenth section of article 5 of the Virginia constitution, and the alleged policy of our law. In this respect the above-quoted remarks of Judge MONCURE are absolutely conclusive, and put an end to this branch of the case. But in order to break, if possible, the The contention of counsel for the appelchain of legislative and judicial construc-lees that this case is not ruled by the Churchtion that binds them, counsel for the appel-man Case, and that Gallego v. Attorney lees undertake to treat this bequest as in- General is still the law of charities in Virvalid because it is " an indefinite charity for ginia, is but a repetition of the erroneous religious purposes;" and to sustain this view taken by Judge TUCKER in the lastremarkable contention the doctrine an- named case, as to the policy of our law in nounced in Gallego v. Attorney General, 3 respect to charities for religious uses. It is Leigh, 450, has been appealed to, and is in- broadly asserted that charities had their sisted upon as still being the law of charities origin in the statute of 43 Eliz.; that it was in this state, though this court decided di- in force in Virginia, and was repealed in rectly the other way in the case of Society v. 1792; and that since the repeal courts of Churchman, 80 Va.718. And in order to break equity in Virginia have been without juristhe force of the opinion in that case counsel diction to enforce charitable bequests. Let assumes that, while the opinion assails the us see what the supreme court of the United doctrine laid down in Gallego v. Attorney States says on the subject. In Russell v. General, "the decision does not touch it." Allen, 107 U. S. 163, 2 Sup. Ct. Rep. 327, (deThis is a matter easily disposed of. The be- cided in 1882,) Mr. Justice GRAY, in deliverquest in the Churchman Case was "to the ing the opinion of the court, gives the subtrustees of the Protestant Episcopal Educa- stance of all the cases on charities previoustional Society of Virginia, to be used exclu-ly decided by that court; and in commentsively for educating poor young men for the Episcopal ministry, upon the basis of evangelical principles as now established." This bequest was held void by the circuit court of Augusta county upon two grounds: First, because to a corporation not absolutely for its own use, as a corporate body, but in trust, to be exclusively used for the purposes therein named; and, second, because the uses and trusts declared by the testator "are null and void, being religious in their nature, and too vague and indefinite to be upheld under the law of this state, or to be administered by a court of chancery, even if said trusts were merely educational." In the effort to maintain this most erroneous decree, counsel for the appellees confidently relied upon Gallego v. Attorney General and like cases following it. The objection, then, that the bequest was invalid, because religious in character, was not only fairly made, but was sustained in 66 ing on Association v. Hart, the source of |