University of Virginia Library

No. VIII.

Dr. Hawks's Opinion on the Glebe Case, taken from his Work
on the Church of Virginia.

[I had intended to examine for myself the question of the constitutionality
of the law for selling the glebes so far as to form and express an
opinion on the subject, though it would have been of very little worth;
but want of time, and the reading of this and the next number of the appendix,
containing Dr. Hawks's candid statement of the case and Judge
Story's able opinion, have led me to a course which will, I am sure, be
greatly preferred by all my readers. I do not hesitate to say that I have
always inclined to the belief that the Act was unconstitutional. I have
long laboured, but in vain, to obtain the opinion of Judge Pendleton, which
was to have been delivered the day after his sudden death, and which would
have decided the question in favour of the Church. I hope it may yet be
found. At the same time, I must declare that I have always rejoiced in
that Act of the Assembly, so far as the Church was concerned. Such has
also been the feeling of almost all our clergy and laity with whom I have
ever conversed. Could we have had the glebes restored to us by a decision
of the courts, or even by the Act of Assembly, we should have opposed the
effort; it being injurious to the cause of religion in our own Church and
in the State. The history of the glebes and glebe-houses in Virginia has,
from first to last, been a most mortifying one. With comparatively few
exceptions, as may be seen on the old vestry-books, they were not worthy
of the residence of our ministers, and, for the most part, were rented out
for very small sums of money—even for forty, thirty, and twenty shillings—or
surrendered to vestries on condition that the casks or hogsheads
for the tobacco were furnished. When the salaries were withdrawn, only
a few of the glebes held out any inducement to the incumbents to remain,
as the voluntary contributions were very small and often nothing at all.
For these few the Episcopalians earnestly contended, and for their sale
some other denominations as earnestly sought. I doubt not that there were
those who advocated their sale from a sincere conviction that it was religiously
and politically right, while it cannot be doubted that, in many
instances, sectarian feeling and political ambition had much to do with it.]

As to the arguments by which a sale of the glebes was urged upon the
Legislature, the principal were as follows:—

1. That most of the glebe-lands were originally purchased with money
levied upon the people at large, and that, consequently, whenever a majority
of the people desired a sale of the lands, they should be sold and the money
applied to such other use as might seem best to them.

2. That if the Church was permitted to retain the property, a certain
pre-eminence and superiority was thereby conferred, which was odious in
a republic and inconsistent with its institutions.

3. That the fourth article of the Declaration of Rights of Virginia asserted,
"That no man or set of men are entitled to exclusive or separate
emoluments or privileges but in consideration of public services;" but the
enjoyment of the glebes did confer upon the Church "exclusive emoluments
from the community," and was consequently unconstitutional.

To the first of these arguments it was answered that some of the glebes
were a private donation; that those which were purchased were bought
many years before,—some of them more than a century,—and that the
"people" with whose money the purchase was made were not Dissenters,
(for there were few or none in the Colony at that day,) but were members
of the Establishment, and perfectly content that their money should be
thus applied; that, having been thus applied, the "people" had voluntarily
divested themselves of it, and their descendants could not now take it back,
any more than they could other moneys of which their ancestors had seen
fit willingly to deprive themselves: it was also answered that, upon this
principle of a restoration to the "people" of money which the "people"
once gave, there should obviously be returned no more than such a part as
would be proportionate to the original number of Dissenters among the
people who purchased; for, if those who now asked for a sale of the glebes
had, from conscientious motives, dissented from the faith of their fathers,
they should thence learn that their fathers also had consciences, and with
no justice or propriety could they seek to undo what their ancestors
had done with a good conscience. But, as to Dissenters among the original
purchasers, there were either none at all, or, at best, the number
was very limited; and it was certain that there were no Baptists among
them.

It was also asserted to be very questionable whether, considering the great
emigrations to the Western country and to other States, there was one-third
of the inhabitants remaining whose ancestors had contributed to purchase
a glebe; that, if they were sold for the benefit of that third, it would be
impossible to ascertain to whom the proceeds should be paid. If it should
be urged that "the country" first purchased them, and that now they
should be given back to "the country," then it was to be remembered that
that country by a solemn Act had declared that "in all time coming" they
should not be taken from the Church; and that if it would be unrighteous in
an individual to take back by mere force that which he had once bestowed

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

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 destroyed

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.[6]

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

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.