 | Old churches, ministers and families of Virginia. |  |
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. By
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
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 dwelling-houses
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 Legislature
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 Episcopal
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 acquired
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 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 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 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,
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.
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 "heirs" is not in the deed. But the covenant of general warranty in
the deed 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
the property belonged to the Church of Alexandria, which, in this respect.
represented the whole parish. And there can be no doubt that the Episcopal
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 churchwardens. 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, therefore,
of the church lands can be made either by himself, or by the parishioners,
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, unless 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 no just, legal,
or equitable title to the said land, and ought to be perpetually enjoined
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.
| Old churches, ministers and families of Virginia. | |