This Court has jurisdiction, where one party claims land under a
grant from the State of New Hampshire and the other under a grant
from the State of Vermont, although at the time of the first grant
Vermont was a part of New Hampshire.
A grant of a tract of land in equal shares to sixty-three
persons, to be divided amongst them into sixty-eight equal shares,
with a specific appropriation of five shares, conveys only a
sixty-eighth part to each person. If one of the shares be declared
to be "for a glebe for the Church of England as by law
established," that share is not holden in trust by the grantees,
nor is it a condition annexed to their rights or shares.
The Church of England is not a body corporate, and cannot
receive a donation
eo nomine.
A grant to the church of such place is good at common law, and
vests the fee in the parson and his successors. If such a grant be
made by the Crown, it cannot be resumed by the Crown at its
pleasure. Land at common law may be granted to pious uses before
there is a grantee in existence competent to take it, and in the
meantime the fee will be in abeyance. Such a grant cannot be
resumed at the pleasure of the Crown.
The common law, so far as it related to the erection of churches
of the episcopal persuasion of England, the right to present or
collate to such churches, and the corporate capacity of the parsons
thereof to take in succession was recognized and adopted in New
Hampshire. It belonged exclusively to the Crown to erect the church
in each town that should be entitled to take the glebe, and upon
such erection to collate through the governor a parson to the
benefice.
A voluntary society of Episcopalians within a town, unauthorized
by the Crown, could not entitle themselves to the glebe. Where no
such church was duly erected by the town, the glebe remained as an
haereditas jacens, and the state which succeeded to the
rights of the Crown might, with the assent of the town, alien or
encumber it or might erect an Episcopalian church therein, and
collate, either directly or through the vote of the town
indirectly, its parson, who would thereby become seized of the
glebe
jure ecclesiae, and be a corporation capable of
transmitting the inheritance.
By the Revolution, the State of Vermont succeeded to all the
rights of the Crown to the unappropriated as well as appropriated
glebes.
By the statute of Vermont of 30 October, 1794, the respective
towns became entitled to the property of the glebes therein
situated.
A legislative grant cannot be repealed.
No Episcopal Church in Vermont can be entitled to the glebe
unless it was duly erected by the Crown before the Revolution or by
the state since.
This was a case certified from the Circuit Court for the
District of Vermont in which, upon an action of ejectment brought
by the Town of Pawlet to recover possession of the glebe lot, as it
was called, in that town, the opinions of the judges of that court
were opposed upon the question whether judgment should be rendered
for the plaintiff or for the defendants upon a verdict found,
subject to the opinion of the Court upon the following case
stated:
"In this cause it is agreed on the part of the plaintiffs that
the lands demanded in the plaintiffs' declaration are a part of the
right of land granted in the charter of the Town of Pawlet by the
former governor of the Province of New Hampshire as a glebe for the
Church of England as by law established, and that in the year 1802
there was in the Town of Pawlet a society of Episcopalians duly
organized agreeably to the rules and regulations of that
denomination of Christians heretofore commonly known and called by
the name of the Church of England. That in the same year the said
society contracted with the reverend Bethuel Chittenden, a regular
ordained minister of the Episcopal Church, who then resided in
Shelburn, in the County of Chittenden (but had not any settlement
as a clerk or pastor therein) to preach to the said society in the
Town of Pawlet at certain stated times and to receive the avails of
the lands in question, and that the said Chittenden thereupon gave
a lease of the said land to Daniel Clark and others, who went into
possession of the premises and still holds the same under the said
lease, and that the said Chittenden regularly preached and
administered the ordinances to the people of the said society,
according to his said contract, and received the rents and profits
of the said land until the year of our Lord Christ
Page 13 U. S. 293
1809, when the said Chittenden deceased, and that in 1809 the
said society contracted with the Reverend Abraham Brownson, a
regular ordained minister of the Episcopal Church residing in
Manchester and officiating there a part of the time, to preach to
the said society a certain share of the time and to receive the
rents and profits of the said land, and that the said Brownson has
regularly attended to his duty in the said church and administered
ordinances in the same until September, 1811, about which time the
said society regularly settled the Reverend Stephen Jewett, who now
resides in the said Town of Pawlet and who from the time of his
settlement is to receive all the temporalities of the said church.
And it is further agreed by the said parties that the General
Assembly of the State of Vermont, on 5 November, 1805, did grant to
the several towns in this state, in which they respectively be
(reference being had to the act of the general assembly aforesaid)
all the lands granted by the King of Great Britain to the
Episcopalian church by law established (reference being had to the
charter of the Town of Pawlet aforesaid for the said grant of the
King of Great Britain), and that the lands in the plaintiffs'
declaration mentioned and described are part of the lands so
granted by the King of Great Britain to the Episcopalian
church."
The charter of Pawlet is dated 26 August, 1761, and purports to
be a grant from the King, issued by Benning Wentworth, Governor of
New Hampshire, and has these words:
"Know ye that we, of our special grace, . . . have, upon the
conditions and reservations hereinafter made, given and granted,
and by these presents for us, our heirs and successors, do give and
grant in equal shares unto our loving subjects, inhabitants of our
said Province of New Hampshire and our other governments and to
their heirs and assigns forever, whose names are entered on this
grant, to be divided amongst them into sixty-eight equal shares,
all that tract or parcel of land situate, lying, and being within
our said Province of New Hampshire, containing by admeasurement
23,040 acres, which tract is to contain six miles square and no
more, . . . and that the same be and hereby is incorporated into a
township by the name of Pawlet, . . .
Page 13 U. S. 294
to have and to hold the tract of land as above expressed,
together with all . . . to them and their respective heirs and
assigns forever. . . ."
On the back of which grant were endorsed "the names of the
grantees of Pawlet,
viz., Jonathan Willard" and others,
being in all 62, then follow these words:
"His Excellency Benning Wentworth, Esquire, a tract of land to
contain five hundred acres as marked in the plan B.W., which is to
be accounted two of the within shares -- one whole share for the
incorporated society for the propagation of the gospel in foreign
parts, one share for a glebe for the Church of England as by law
established, one share for the first settled minister of the
gospel, one share for the benefit of a school in said town."
The Act of 5 November, 1805, is entitled
"An act directing the appropriation of the lands in this state,
heretofore granted by the government of Great Britain to the Church
of England as by law established."
"Whereas the several glebe rights granted by the British
government to the Church of England as by their law established are
in the nature of public reservations, and as such became vested by
the Revolution in the sovereignty of this state, therefore,"
"Sec. 1. Be it enacted by the General Assembly of the State of
Vermont that the several rights of land in this state granted under
the authority of the British government to the Church of England as
by law established be and the same are hereby granted severally to
the respective towns in which such lands lie and to their
respective use and uses forever in manner following, to-wit: "
"It shall be the duty of the selectmen in the respective towns
in the name and behalf, and at the expense, of such towns, if
necessary, to sue for and recover the possession of such lands, and
the same to lease out according to their best judgment and
discretion, reserving an annual rent therefor, which shall be paid
into the treasury of such town and appropriated to"
Page 13 U. S. 295
the use of schools therein, and shall be applied in the same
manner as monies arising from school lands are by law directed to
he applied.
Page 13 U. S. 322
STORY, J., delivered the opinion of the Court as follows;
The first question presented in this case is whether the Court
has jurisdiction. The plaintiffs claim under a grant from the State
of Vermont, and the defendants claim under a grant from the State
of New Hampshire, made at the time when the latter state
comprehended the whole territory of the former state. The
Constitution of the United States, among other things, extends the
judicial power of the United States to controversies "between
citizens of the same state claiming lands under grants of different
states." It is argued that the grant under which the defendants
claim is not a grant of a different state within the meaning of the
Constitution, because Vermont, at the time of its emanation, was
not a distinct government, but was included in the same sovereignty
as New Hampshire.
But it seems to us that there is nothing in this objection. The
Constitution intended to secure an impartial tribunal for the
decision of causes arising from the grants of different states, and
it supposed that a state tribunal might not stand indifferent in a
controversy where the claims of its own sovereign were in conflict
with those of another sovereign. It had no reference whatsoever to
the antecedent situation of the territory, whether included in one
sovereignty or another. It simply regarded the fact whether grants
arose under the same or under different states. Now it is very
clear that although the territory of Vermont was once a part of New
Hampshire, yet the State of Vermont, in its
Page 13 U. S. 323
sovereign capacity, is not and never was the same as the State
of New Hampshire. The grant of the plaintiffs emanated purely and
exclusively from the sovereignty of Vermont, that of the defendants
purely and exclusively from the sovereignty of New Hampshire. The
sovereign power of New Hampshire remains the same although it has
lost a part of its territory; that of Vermont never existed until
its territory was separated from the jurisdiction of New Hampshire.
The circumstance that a part of the territory or population was
once under a common sovereign no more makes the states the same
than the circumstance that a part of the members of one corporation
constitutes a component part of another corporation makes the
corporation the same. Nor can it be affirmed in any correct sense
that the grants are of the same state, for the grant of the
defendants could not have been made by the State of Vermont, since
that state had not at that time any legal existence, and the grant
of the plaintiffs could not have been made by New Hampshire, since
at that time New Hampshire had no jurisdiction or sovereign
existence by the name of Vermont. The case is therefore equally
within the letter and spirit of the clause of the Constitution. It
would indeed have been a sufficient answer to the objection that
the Constitution and laws of the United States, by the admission of
Vermont into the union as a distinct government, had decided that
it was a different state from that of New Hampshire.
The other question which has been argued is not without
difficulty. It is contended by the plaintiffs that the original
grant in the charter of Pawlet of "one share for a glebe for the
Church of England as by law established" is either void for want of
a grantee, or if it could take effect at all, it was as a public
reservation which, upon the Revolution, devolved upon the State of
Vermont.
The material words of the royal charter of 1761 are
"do give and grant in equal shares unto our loving subjects,
&c., their heirs and assigns forever, whose names are entered
on this grant, to be divided amongst them into sixty-eight equal
shares, all that tract or parcel of land, &c., and that the
same be and hereby is incorporated
Page 13 U. S. 324
into a township by the name of Pawlet, and the inhabitants that
do or shall hereafter inhabit the said township are hereby declared
to be enfranchised with and entitled to all and every the
privileges and immunities that other towns within our province by
law exercise and enjoy. To have and to hold the tract of land,
&c., to them and their respective heirs and assigns forever,
upon the following conditions. . . ."
Upon the charter are endorsed the names of sixty-two persons,
and then follows this additional clause:
"His Excellency, Benning Wentworth, a tract of land to contain
500 acres as marked in the plan B.W., which is to be accounted two
shares -- one share for the incorporated society for the
propagation of the gospel in foreign parts, one share for a glebe
for the Church of England as by law established, one share for the
first settled minister of the gospel, one share for the benefit of
a school in said town."
Thus making up, with the preceding sixty-two shares, the whole
number of sixty-eight shares stated in the charter.
Before we proceed to the principal points in controversy, it
will be proper to dispose of those which more immediately respect
the legal construction of the language of the charter. And in our
judgment, upon the true construction of that instrument, none of
the grantees, saving Governor Wentworth, could legally take more
than one single share, or a sixty-eighth part of the township. This
construction is conformable to the letter and obvious intent of the
grant, and, as far as we have any knowledge, has been uniformly
adopted in New Hampshire. It is not for this Court upon light
grounds or ingenious and artificial reasoning to disturb a
construction which has obtained so ancient a sanction and has
settled so many titles, even if it were at first somewhat doubtful.
But it is not in itself doubtful, for it is the only construction
which will give full effect to all the words of the charter. Upon
any other, the words "in equal shares" and "to be divided amongst
them in sixty-eight equal shares" would be nugatory or senseless.
We are further of opinion that the share for a glebe is not vested
in the other grantees having a capacity to take, and so in the
nature of a condition,
Page 13 U. S. 325
use, or trust, attaching to the grant. It is nowhere stated to
be a condition binding upon such proprietors, although other
conditions are expressly specified. Nor is it a trust or use
growing out of the sixty-eighth part granted to the respective
proprietors, for it is exclusive of these shares by the very terms
of the charter. The grant is in the same clause with that to the
society for the propagation of the gospel, and in the same
language, and ought therefore to receive the same construction
unless repugnant to the context or manifestly requiring a different
one. It is very clear that the society for the propagation of the
gospel take a legal, and not a merely equitable, estate, and there
would be no repugnancy to the context, in considering the glebe, in
whomsoever it may be held to vest, as a legal estate.
We are further of opinion that the three shares in the charter
"for a glebe," "for the first settled minister," and "for a
school," are to be read in connection, so as to include in each the
words "in the said town,"
i.e. of Pawlet, so that the
whole clause is to be construed one share for a glebe, &c., in
the Town of Pawlet, one share for the first settled minister in the
Town of Pawlet, and one share for a school in the Town of
Pawlet.
We will now consider what is the legal operation of such a grant
at the common law, and how far it is affected by the laws of New
Hampshire or Vermont.
At common law, the Church of England, in its aggregate
description, is not deemed a corporation. It is indeed one of the
great estates of the realm, but is no more on that account a
corporation than the nobility in their collective capacity. The
phrase, "the Church of England," so familiar in our laws and
judicial treatises, is nothing more than a compendious expression
for the religious establishment of the realm, considered in the
aggregate under the superintendence of its spiritual head. In this
sense, the Church of England is said to have peculiar rights and
privileges not as a corporation, but as an ecclesiastical
institution under the patronage of the state. In this sense it is
used in Magna Charta, ch. 1, where it is declared
"quod
ecclesia anglicana libera sit, et habeat omnia jura sua integra, et
libertates
Page 13 U. S. 326
suas illoesas," and Lord Coke in his commentary on the
text, obviously so understands it, 2 Inst. 2, 3. The argument,
therefore, that supposes a donation to "the Church of England" in
its collective capacity to be good cannot be supported, for no such
corporate body exists even in legal contemplation.
But it has been supposed that the "Church of England of a
particular parish" must be a corporation for certain purposes,
although incapable of asserting its rights and powers except by its
parson regularly inducted. And in this respect it might be likened
to certain other aggregate corporations acknowledged in law, whose
component members are civilly dead and whose rights may be
effectually vindicated through their established head, though
during a vacancy of the headship they remain inert; such are the
common law corporations of abbot and convent, and prior and monks
of a priory. Nor is this supposition without the countenance of
authority.
The expression "parish church" has various significations. It is
applied sometimes to a select body of Christians forming a local
spiritual association, and sometimes to the building in which the
public worship of the inhabitants of a parish is celebrated, but
the true legal notion of a parochial church is a consecrated place
having attached to it the rights of burial and the administration
of the sacraments. Com.Dig. Esglise, C. Seld. de Decim. 265; 2
Inst. 363; 1 Burn's Eccles.Law 217; 1 Woodes 314. Doctor Gibson,
indeed, holds that the church in consideration of law is properly
the cure of souls, and the right of tithes. Gibs. 189; 1 Burn's
Eccles.Law 232.
Every such church, of common right, ought to have a manse and
glebe as a suitable endowment, and without such endowment it cannot
be consecrated, and until consecration it has no legal existence as
a church. Com.Dig. Dismes, B. 2; 3 Inst. 203; Gibs. 190; 1 Burn's
Eccl.Law 233; Com.Dig. Esglise, A.; Dort. of Plural 80. When a
church has thus acquired all the ecclesiastical rights, it becomes
in the language of law a rectory or parsonage, which consists of a
glebe, tithes, and oblations established for the maintenance of a
parson
Page 13 U. S. 327
or rector to have cure of souls within the parish. Com.Dig.
Ecelesiast.Persons, c. 6.
These capacities, attributes and rights, however, in order to
possess a legal entity, and much more to be susceptible of a legal
perpetuity, must be invested in some natural or corporate body, for
in no other way can they be exercised or vindicated. And so is the
opinion of Lord Coke in 3 Inst. 201-202, where he says
"albeit they [
i.e., subjects] might build churches
without the King's license, yet they could not erect a spiritual
politic body to continue in succession and capable of endowment
without the King's license; but by the common law before the
Statute of Mortmain they might have endowed the spiritual body once
incorporated
perpetuis futuris temporibus, without any
license from the King or any other."
This passage points clearly to the necessity of a spiritual
corporation to uphold the rectorial rights. We shall presently see
whether the parish church, after consecration, was deemed in legal
intendment such a corporation. In his learned treatise on tenures,
Lord Chief Baron Gilbert informs us that anciently, according to
the superstition of the age, abbots and prelates
"were supposed to be married to the church, inasmuch as the
right of property was vested in the church, the estate being
appropriated, and the bishop and abbot as husbands and
representatives of the church had the right of possession in them,
and this the rather because they might maintain actions and recover
and hold courts within their manors and precincts as the entire
owners, and that crowns and temporal states might have no
reversions of interests in their feuds and donations. Therefore,
since they had the possession in fee, they might alien in fee; but
they could not alien more than the right of possession that was in
them, for the right of propriety was in the church."
But as to a parochial parson, "because the cure of souls was
only committed to him during life, he was not capable of a fee, and
therefore the fee was in abeyance." Gilb. Tenares, 110, &c.
Conformable herewith is the doctrine of Bracton, who observes
that an assize
juris utrum would not lie
Page 13 U. S. 328
in cases of a gift of lands to cathedral and conventual
churches, though given
in liberam eleemosynam, because
they were not given to the church solely, but also to a parson to
be held as a barony,
non solum dantur ecclesiis, sed et
personis tenendae in baronia, and therefore they might have
all the legal remedies applicable to a fee. But he says it is
otherwise to a person claiming land in right of his church, for in
cases of parochial churches, gifts were not considered as made to
the parson, but to the church,
quia ecclesiis parochialibus non
fit donatio personae, sed ecclesiae, secundum perpendi poterit per
modum donationis. Bracton 286b; 1 Reeves Hist.Law 369. And in
another place, Bracton, speaking of the modes of acquiring
property, declares that a donation may well be made to cathedrals,
convents, parish churches and religious personages,
poterit
etiam donatio fieri in liberam eleemosynam, sicut ecclesiis
cathedralibus, conventualibus, parochialibus, vivis religiosis, . .
. &c., Bracton 27b; 1 Reeve Hist.Law 303.
The language of these passages would seem to consider cathedral,
conventual, and parochial churches as corporations of themselves,
capable of holding lands. But upon an attentive examination it will
be found to be no more than an abbreviated designation of the
nature, quality, and tenure of different ecclesiastical
inheritances, and that the real spiritual corporations, which are
tacitly referred to, are the spiritual heads of the particular
church,
viz., the bishop, the abbot, and, as more
important to the present purpose, the parson,
qui gerit
personam ecclesiae.
Upon this ground it has been held in the year books, 11 Il. 4,
84b, and has been cited as good law by Fitzherbert and Brook,
Fitz., Feofft. pl. 42, (Bro. Estate pl. 49;
S.C. Viner,
Ab.L., pl. 4), that if a grant be made to the church of such a
place, it shall be a fee in the parson and his successors.
Si
terre soit done per ceux paroles, dedit et concessit ecclesiae de
tiel lieu, le parson et ses successeurs serra inheriter. And
in like manner if a gift be of chattels to parishioners, who are no
corporation, it is good and the church wardens shall take them in
succession, for the gift is to the use of the church. 37 H. VI 30;
1 Kyd. Corp. 29.
Page 13 U. S. 329
In other cases, the law looks to the substance of the gift, and
in favor of religion vests it in the party capable of taking it.
And notwithstanding the doubts of a learned but singular mind,
Perk. § 55, in our judgment the grant in the present charter, if
there had been a church actually existing in Pawlet at the time of
the grant, must upon the common law have received the same
construction. In the intendment of law, the parson and his
successors would have been the representatives of the church
entitled to take the donation of the glebe. It would in effect have
been a grant to the parson of the Church of England in the Town of
Pawlet and to his successors of one share in the township as an
endowment to be held
jure ecclesiae, for a glebe is
emphatically the dowry of the church;
Cleba est terra qua
consistit dos ecclesiae. Lind. 254.
Under such circumstances, by the common law, the existing parson
would have immediately become seized of the freehold of the glebe,
as a sele corporation capable of transmitting the inheritance to
his successors.
Whether, during his life, the fee would be in abeyance according
to the ancient doctrine, Litt. § 646, 647; Co.Lit. 342, 5 Edw. IV,
p. 105; Byer 74, pl. 43; Hob. 338; Com.Dig. Abeyance A;
id., Ecclesiastical persons, C. 9; Perk. § 709, or
whether, according to learned opinions in modern times, the fee
should be considered as
quodam modo vested in the parson
for the benefit of his church and his successors, Co.Lit. 341a;
Com.Dig. Ecclesiast. Persons C. 9; Fearne, cont. rem. 513, &c.;
Christian's note to 2 Black.Com. 107, note 3; Gilb. tenures 113; 1
Woodeson 312, is not very material to be settled, for at all events
the whole fee would have passed out of the Crown. Litt. § 648;
Co.Lit. 341a; Christian's note,
ubi supra; Gilb. tenures
113. Nor would it be in the power of the Crown, after such a grant
executed in the parson, to resume it at its pleasure. It would
become a perpetual inheritance of the church, not liable, even
during a vacancy, to be divested, though by consent of all parties
interested,
viz., the patron and ordinary and also the
parson if the church were full, it might be aliened or encumbered.
Litt. § 648; Co.Lit. 343; Perk. § 35; 1 Burn's Ecclesiast.Law
586.
Page 13 U. S. 330
But inasmuch as there was not any church duly consecrated and
established in Pawlet at the time of the charter, it becomes
necessary further to inquire whether, at common law, a grant so
made is wholly void for want of a corporation having a capacity to
take.
In general, no grant can take effect unless there be a
sufficient grantee then in existence. This, in the case of
corporations, seems pressed yet further, for if there be an
aggregate corporation, having a head, as a mayor and commonalty, a
grant or devise made to the corporation during the vacancy of the
headship is merely void, although for some purposes, as for the
choice of a head, the corporation is still considered as having a
legal entity, 13 Ed. IV, 8; 18 Ed. IV, 8; Bro.Corporation 58-59;
Dalison, R. 31; 1 Kyd.Corp. 106-107; Perk. § 33, 50. Whether this
doctrine has been applied to parochial churches during an avoidance
has not appeared in any authorities that have fallen within our
notice, and perhaps can be satisfactorily settled only by a
recurrence to analogous principles, which have been applied to the
original endowments of such churches.
We have already seen that at no parish church, as such, could
have a legal existence until consecration, and consecration was
expressly inhibited unless upon a suitable endowment of land. The
cannon law, following the civil law, required such endowment to be
made, or at least ascertained, before the building of the church
was begun. Gibs. 189; 1 Burn's Eccles.Law 233. This endowment was
in ancient times commonly made by an allotment of manse and glebe
by the Lord of the manor, who thereupon became the patron of the
church. Other persons also at the time of consecration often
contributed small portions of ground, which is the reason, we are
told, why in England in many parishes, the glebe is not only
distant from the manor, but lies in remote divided parcels,
Ken.Par.Aut. 222=223, cited in 1 Burn's, Eccles.Law 234. The manner
of founding the church and making the allotment was for the bishop
or his commissioner to set up a cross and set forth the ground
where the church was to be built, and it then became the endowment
of the church. Degge. 1, ch. 12, cited 1 Burn's Eccles.Law 233.
Page 13 U. S. 331
From this brief history of the foundation of parsonages and
churches it is apparent that there could be no spiritual or other
corporation capable of receiving livery of seizin of the endowment
of the church. There could be no parson, for he could be inducted
into office only as a parson of an existing church, and the
endowment must precede the establishment thereof. Nor is it even
hinted that the land was conveyed in trust, for at this early
period trusts were an unknown refinement. The land therefore must
have passed out of the donors, if at all, without a grantee, by way
of public appropriation or dedication to pious uses. In this
respect it would form an exception to the generality of the rule
that to make a grant valid, there must be a person
in esse
capable of taking it. And under such circumstances, until a parson
should be legally inducted to such new church, the fee of its lands
would remain in abeyance, or be like the
haereditas jacens
of the Roman code, in expectation of an heir. This would conform
exactly to the doctrine of the civil law, which, as to pious
donations, Bracton has not scrupled to affirm to be the law of
England.
"
Res vero sacrae, religiosae, et sanctae in nullius bonis
sunt, quod enim divini juris est, id in nullius hominis bonis est,
immo in bonis dei hominum censura. . . . Res quidam nullius
dicuntur pluribus modis. . . . Item censura (ut dictum est), sicut
res sacrae religiosae et sanctae. Item casu, sicut est haereditas
jacens ante additionem, sed fallit in hoc, quia sustinet vicem
personae defuncti, vel quia speratur futura haereditas ejus, qui
adibit."
Bracton 8a; Justin. Instit. lib. 2, tit. 1; Co.Lit. 342, on
Litt. § 447.
Nor is this a novel doctrine in the common law. In the familiar
case where a man lays out a public street or highway, there is,
strictly speaking, no grantee of the easement, but it takes effect
by way of grant or dedication to public uses.
Lade v.
Shepherd, 2 Str. 1004. Hale in Harg. 78. So if the parson or a
stranger purchase a bell with his own money and put it up, and
property passes from the purchaser, because, when put up, it is
consecrated to the church, 11 H. IV, 12, 1 Kyd. Corp. 29-30. These
principles may seem to savor of the ancient law, but in a modern
case in which, in argument, the doctrine was asserted, Lord
Hardwicke did not deny it, but simple decided that the
circumstances of that case did not amount to a donation of the
land, on which
Page 13 U. S. 332
a chapel had been built, to public and pious uses.
Attorney
General v. Foley, 1 Dick. 363. And in an intermediate period,
Lord Chief Justice Dyer held that if the Crown by a statute
renounced an estate, the title was gone from the Crown, although
not vested in any other person, but the fee remained in
abeyance.
It is true that Weston, J., was, in the same case, of a
different opinion; but Lord Chief Baron Comyns has quoted Dyer's
opinion without any mark of disapprobation. Com.Dig. Abeyance, A.
1.
For the reasons, then, that have been stated, a donation by the
Crown for the use of a nonexisting parish church may well take
effect by the common law as a dedication to pious uses, and the
Crown would thereupon be deemed the patron of the future benefice
when brought into life. And after such a donation, it would not be
competent for the Crown to resume it at its own will, or alien the
property without the same consent which is necessary for the
alienation of other church property,
viz., the consent of
the ordinary, and parson, if the church be full, or in a vacancy,
of the ordinary alone.
And the same principles would govern the case before the court
if it were to be decided upon the mere footing of the common law.
If the charter had been of a township in England, the grant of the
glebe would have taken effect as a dedication to the parochial
Church of England to be established therein.
Before such church were duly erected and consecrated the fee of
the glebe would remain in abeyance, or at least be beyond the power
of the Crown to alien without the ordinary's consent. Upon the
erection and consecration of such a church and the regular
induction of a parson, such parson and his successors would, by
operation of law and without further act, have taken the
inheritance
jure ecclesiae.
Let us now see how far these principles were applicable to New
Hampshire at the time of issuing of the charter of Pawlet.
New Hampshire was originally erected into a royal
Page 13 U. S. 333
province in the 31st year of Charles II, and from thence until
the Revolution, continued a royal province, under the immediate
control and direction of the Crown. By the first royal commission
granted in 31 Charles II, among other things judicial powers, in
all actions, were granted to the provincial governor and
council,
"so always that the form of proceedings in such cases, and the
judgment thereupon to be given, be as consonant and agreeable to
the laws and statutes of this our realm of England, as the present
state and condition of our subjects inhabiting within the limits
aforesaid (
i.e. of the province) and the circumstances of
the place will admit."
Independent, however, of such a provision, we take it to be a
clear principle that the common law in force at the emigration of
our ancestors is deemed the birthright of the colonies unless so
far as it is inapplicable to their situation or repugnant to their
other rights and privileges.
A fortiori the principle
applies to a royal province.
By the same commission or charter the Crown granted to the
subjects of the province,
"that liberty of conscience shall be allowed to all protestants,
and that such especially as shall be conformable to the rites of
the Church of England shall be particularly countenanced and
encouraged."
By a subsequent commission of 15 Geo. II, the governor of the
province, among other things, is authorized
"to collate any person or persons to any churches, chapels, or
other ecclesiastical benefices within our said province as often as
any shall happen to be void,"
and this authority was continued and confirmed in the same terms
by royal commissions, in 1 Geo. III and 6 Geo. III. By the
provincial statute of 13 Ann, ch. 43, the respective towns in the
province were authorized to choose, settle, and maintain their
ministers and to levy taxes for this purpose, so always that no
person who constantly and conscientiously attended public worship
according to another persuasion should be excused from taxes. And
the respective towns were further authorized to build and repair
meeting houses, minister's houses, and school houses and to provide
and pay schoolmasters. This is the whole of the provincial and
royal legislation upon the subject of religion.
Inasmuch as liberty of conscience was allowed and
Page 13 U. S. 334
the Church of England was not exclusively established, the
ecclesiastical rights to titles, oblations and other dues had no
legal existence in the province. Neither, upon the establishment of
churches, was a consecration by the bishop or a presentation of a
parson to the ordinary indispensable, for no bishopric existed
within the province.
But the common law, so far as it respected the erection of
churches of the Episcopal persuasion of England, the right to
present or collate to such churches, and the corporate capacity of
the parsons thereof to take in succession, seems to have been fully
recognized and adopted. It was applicable to the situation of the
province, was avowed in the royal grants and commissions, and
explicitly referred to in the appropriation of glebes, in almost
all the charters of townships in the province. And it seems to be
also clear that it belonged to the Crown exclusively, at its own
pleasure, to erect the church in each town that should be entitled
to take the glebe, and upon such erection to collate, through the
governor, a parson to the benefice. The respective towns in their
corporate capacity had no control over the glebe, but inasmuch as
they were bound by the provincial statute to maintain public
worship, and had therefore an interest to be eased of the public
burden, by analogy to the common law in relation to the personal
property of the parish church, the glebe could not, before the
erection of a church, be aliened by the Crown without their
consent, nor after the erection of a church and induction of a
parson could the glebe be aliened without the joint consent of the
Crown as patron, the parson as
persona ecclesiae, and the
parishioners of the church as having a temporal as well as
spiritual interest, and thereby in effect representing the
ordinary.
But a mere voluntary society of Episcopalians within a town,
unauthorized by the Crown, could no more entitle themselves, on
account of their religious tenets, to the glebe than any other
society worshiping therein.
The church entitled must be a church recognized in law for this
particular purpose. Whenever, therefore, within the province,
previous to the Revolution, an Episcopal Church was duly erected by
the Crown in any town,
Page 13 U. S. 335
the parsons thereof regularly inducted had a right to the glebe
in perpetual succession. Where no such church was duly erected by
the Crown, the glebe remained as an
haereditas jacens, and
the state which succeeded to the rights of the Crown might, with
the assent of the town, alien or encumber it, or might erect an
Episcopal Church therein and collate, either directly or, through
the vote of the town, indirectly its parson, who would thereby
become seized of the glebe
jure ecclesiae and be a
corporation capable of transmitting the inheritance.
Such in our judgment are the rights and privileges of the
Episcopal Churches of New Hampshire and the legal principles
applicable to the glebes reserved in the various townships of that
state previous to the Revolution. And without an adoption of some
of the common law in the manner which I have suggested, it seems
very difficult to give full effect to the royal grants and
commissions or to uphold that ecclesiastical policy which the Crown
had a right to patronize and to which it so explicitly avowed its
attachment.
It seems to be tacitly, if not openly, conceded that before the
Revolution, no regular Episcopal Church was established in Pawlet.
By the Revolution, the State of Vermont succeeded to all the rights
of the Crown as to the unappropriated as well as appropriated
glebes.
It now, therefore becomes material to survey the statutes which
the State of Vermont has, from time to time, passed on this
subject.
By the statute of 26 October, 1787, the selectmen of the
respective towns were authorized during the then septennary (which
expired in 1792), to take the care and inspection of the glebes and
to lease the same for and during the same term, and further to
recover possession of the same, where they had been taken
possession of by persons without title, but an exception is made in
favor of ordained Episcopal ministers, who during their ministry
within the same term were allowed to take the profits of the glebes
within their respective towns. The statute of 30 October, 1794,
granted to their respective towns the entire property of the glebes
therein situate for the sole use and support of religious worship,
and
Page 13 U. S. 336
authorized the selectmen of the towns to lease and recover
possession of such glebes. This act was repealed by the statute of
5 November, 1779. But by the statute of 5 November, 1805, the
glebes were again granted to the respective towns for the use of
the schools of such towns, and power was given to the selectmen to
sue for possession of and to lease the same.
By the operation of these statutes and especially of that of
1794, which, so far as it granted the glebes to the towns, could
not afterwards be repealed by the legislature so as to divest the
right of the towns under the grant, the towns became respectively
entitled to all the glebes situate therein which had not been
previously appropriated by the regular and legal erection of an
Episcopal Church within the particular town; for the such case, the
towns would legally represent all the parties in interest,
viz., the state which might be deemed the patron, and the
parish.
Without the authority of the state, however, they could not
apply the lands to other uses than public worship, and in this
respect the statute of 1805 conferred a new right which the towns
might or might not exercise at their own pleasure.
Upon these principles, the plaintiffs are entitled to recover
unless the defendants show not merely that before the year 1794
there was a society of Episcopalians in Pawlet regularly
established according to the rules of that sect, but that such
society was erected by the Crown or the state, as an Episcopal
Church (
i.e. the Church of England) established in the
Town of Pawlet. For unless it have such a legal existence, its
parson cannot be entitled to the glebe reserved in the present
charter.
The statement of facts is not, in this particular, very exact,
but it may be inferred from it that the Episcopal society or church
was not established in Pawlet previous to the year 1802. In what
manner and by what authority it was then established does not
distinctly appear. As the title of the plaintiffs is, however,
prima facie good, and the title of the defendants is not
shown to be sufficient, upon the principles which have been stated
the plaintiffs would seem entitled to judgment.
Page 13 U. S. 337
There is another view of the subject which if any doubt hung
over that which has been already suggested would decide the cause
in favor of the plaintiffs. And it is entitled to the more weight
because it seems in analogous cases to have received the
approbation and sanction of the state courts of New Hampshire. In
the various royal charters of townships in which shares have been
reserved for public purposes (and they are numerous), it has been
held that the shares for the first settled minister and for the
benefit of a school were vested in the town in its corporate
capacity; in the latter case as a fee simple absolute, in the
former case as a base fee, determinable upon the settlement of the
first minister by the town.
The foundation of this construction is supposed to be that the
town is by law obliged to maintain public worship and public
schools, and that therefore the legal title ought to pass to the
town, which is considered as the real
cestui que use. By
analogy to this reasoning, the share for a glebe might be deemed to
be vested in the town for the use of an Episcopal Church, and then
before any such church should be established, and the use executed
in its parson by the joint assent of the legislature and the town,
the land might at any time be appropriated to other purposes.
We do not profess to lay any particular stress on this last
consideration, because we are entirely satisfied to vest the
decision upon the principles which have been before asserted.
On the whole, the opinion of the majority of the Court is that
upon the special statement of facts by the parties
Judgment ought to pass for the plaintiffs.
JOHNSON, J.
The difficulties in this case appear to me to arise from
refining too much upon the legal principles relative to
ecclesiastical property under the laws of England.
I find no difficulty in getting a sufficient trustee to sustain
the fee until the uses shall arise.
It is not material whether the corporation of Pawlet
Page 13 U. S. 338
consist of the proprietors or inhabitants. The grant certainly
vests the legal interest in the proprietor, and it is in nothing
inconsistent with this idea to admit that the corporate powers of
the Town of Pawlet are vested in the inhabitants. The proprietors
may still well be held trustees, but the application of the trust
may be subject to the will of the whole combined population.
I therefore construe this grant thus, we vest in you so much
territory, by metes and bounds, in trust to divide the same into
sixty-eight shares; to assign one share in fee to each of you, the
grantees, two to the governor, one to the Church of England as by
law established, &c. This certainly would be a sufficient
conveyance to support the fee for the purposes prescribed.
But the difficulty arises on the meaning of the words "Church of
England as by law established." This was unquestionably meant to
set apart a share of the land granted for the use of that class of
Christians know by the description of Episcopalians. But was it
competent for any man or any number of men to enter upon this land
without any legal designation or organization identifying them to
come within the description of persons for whose use this
reservation was made? I think not. Some act of the Town of Pawlet,
or of the legislature of the state, or at least of Episcopal
jurisdiction, became necessary to give form and consistency to the
cestui que use until such person or body became
constituted and recognized. I see nothing to prevent the
legislature itself from making an appropriation of this
property.
Their controlling power over the corporate body denominated the
Town of Pawlet certainly sanctioned such an act, and before the act
passed in this case, there does not appear to have been in
existence a person or body of men in which the use could have
vested.
I therefore concur in the decision of the Court.