The religious establishment of England was adopted by the colony
of Virginia, together with the common law upon that subject as far
as was applicable to the circumstances of the colony.
The church was capable of receiving endowments of land, and the
minister of the church was, during his incumbency, seized of the
freehold of its inheritable property as emphatically
persona
ecclesiae, and capable as a sole corporation of transmitting
that inheritance to his successors.
The church wardens also were a corporate body, clothed with
authority and guardianship over the repairs of the church and its
personal property; at common law, their capacity was limited to a
personal estate; the other temporal concerns of the church were
submitted to a vestry composed of persons selected for that
purpose.
By several statutes of Virginia and the common law, lands
purchased under their authority became vested either directly or
beneficially in the Episcopal church; the minister for the time
being was seized of the freehold in law or equity,
jure
ecclesiae, and during a vacancy the fee remained in abeyance,
and the profits of the parsonage were to be taken by the parish for
its own use.
Property thus acquired by the church remained unimpaired
notwithstanding-the Revolution, for the statute of 1776, c. 2,
completely confirmed and established the rights of the church to
all its lands and other property.
At the Revolution, the Episcopal church no longer retained its
character as an exclusive religious establishment, and it was
competent for the people and the legislature to deprive it of its
superiority over other religious sects and to withhold from it any
support by public taxation.
The legislature may 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 is not 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, nor did either public or constitutional
principles require the abolition of all religious corporations.
The public property acquired by the Episcopal churches under the
sanction of the laws did not, at the Revolution, become the
property of the state. The title was indefeasibly vested in the
church or their legal agents. The dissolution of the form of
government did not involve in it a dissolution of civil rights or
an abolition of the common law.
Although a conveyance to the church wardens and their successors
cannot operate to convey a fee to the church, because their
successors as such could not take, nor to the church wardens in
their natural capacity, because the word "heirs" is not in the
deed, yet a covenant or general warranty in the deed binding the
grantors and their heirs forever and warranting the land to the
church wardens and their successors forever may well operate, by
way of estoppel, to confirm to the church and its privies the
perpetual and beneficial estate in the land.
As incident to their office as general guardians of the church,
the vestrymen may assert the rights and interests of the church.
But the minister also, having the freehold estate in law or equity
during his incumbency in the lands of the church, is entitled to
assert his own lights as
persona ecclesiae. No alienation,
therefore, of the church lands can be made either by himself or by
the parishioners or their authorized agents in case of a plenarty
of the church without the mutual consent of both unless such assent
be expressly dispensed with by statute.
Taylor and others,
"members of the vestry of the Protestant Episcopal Church,
commonly called the Episcopal Church of Alexandria in the Parish of
Fairfax in the County of Alexandria and District of Columbia, on
behalf of themselves and others, members of the said church, and of
the congregation belonging to the said church,"
filed their bill in chancery against Terrett and others, who
were overseers of the poor for the County of Fairfax, in the State
of Virginia, and against George Deneale and John Muncaster, wardens
of the said church, and against James Wren.
The bill charges that on 27 May, 1770, the vestry of the said
parish and church, to whom the complainants, together with the
defendants, George Deneale and John Muncaster, are the legal and
regular successors in the said vestry, purchased of a certain
Daniel Jennings a tract of land then situate in the County of
Fairfax and State of Virginia, but now in the County of Alexandria
in the District of Columbia, containing 516 acres, which the said
Jennings and his wife, by deed of bargain and sale on 18 September,
1770, by the direction of the then vestry, conveyed to a certain
Townsend Dade, since deceased, and the said James Wren, both then
of the County of Fairfax, and
Page 13 U. S. 44
the church wardens of the said parish and church for the time
being, and to their successors in office, for the use and benefit
of the said church in the said parish. That in the year 1784, the
Legislature of Virginia passed an act entitled "an act for
incorporating the Protestant Episcopal Church," by the third
section of which power is given to the ministers and vestry of the
Protestant Episcopal Church to demise, alien, improve, and lease
any lands belonging to the church. That the act of 1786, entitled
"An act to repeal the act for incorporating the Protestant
Episcopal Church, and for other purposes," declares that the act of
1784 shall be repealed, but saves to all religious societies the
property to them respectively belonging, and authorizes them to
appoint from time to time, according to the rules of their sect,
trustees who shall be capable of managing and applying such
property to the religious use of such societies. That under this
last law the complainants conceive they have the power of requiring
the church wardens of their church, who are the trustees appointed
by the vestry, under the direction of the vestry contemplated by
the last mentioned act, to sell or otherwise dispose of the said
land and to apply the proceeds of the same to the religious use of
the society or congregation belonging to the said church in such
manner as the vestry for the time being shall direct. That the
complainants have been, according to the rules and regulations of
the said society, appointed by the congregation vestrymen and
trustees of the said church, and have appointed the defendants,
Deneale and Muncaster, church wardens of the said church. That some
of the present congregation of the church were originally members
of the church when the church was built and when the land was
purchased, and contributed to the purchase thereof. That some of
them reside in the County of Fairfax and State of Virginia, but
have pews in the church and contribute to the support of the
minister. That the lands are wasting by trespasses, &c. That
the complainants, as well as the congregation, wish to sell the
lands and apply the proceeds to the use of the church, but are
opposed in their wishes by the defendants, Terrett and others, who
are overseers of the poor for the County of Fairfax and who claim
the land under the act of Virginia of 12 January, 1802, authorizing
the
Page 13 U. S. 45
sale of certain glebe lands in Virginia, which act was not
passed until after the District of Columbia was separated from the
State of Virginia, in consequence of which claim they are unable to
sell the lands, &c., wherefore they pray that the defendants,
Terrett and others, the overseers of the poor, may be perpetually
enjoined from claiming the land, that their title may be quieted,
and that the defendants, Deneale, Muncaster and Wren, may be
decreed to sell and convey the land, &c.
The bill was regularly taken for confessed against all the
defendants. The court below decreed a sale, &c., according to
the prayer of the bill.
The defendants, Terrett and others, the overseers of the poor,
sued out their writ of error.
STORY, J. delivered the opinion of the Court as follows:
The defendants not having answered to the bill in the court
below, it has been taken
pro confesso, and the cause is
therefore to be decided upon the title and equity apparent on the
face of the bill.
If the plaintiffs have shown a sufficient title to the trust
property in the present bill, we have no difficulty in holding that
they are entitled to the equitable relief prayed for. It will be
but the case of the
cestuis que trust enforcing against
their trustees the rights of ownership under circumstances in which
the objects of the trust would be otherwise defeated. And in our
judgment it would make no difference whether the Episcopal Church
were a voluntary society on clothed with corporate powers, for in
equity, as to objects which the
Page 13 U. S. 46
laws cannot but recognize as useful and meritorious, the same
reason would exist for relief in the one case as in the other.
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, seized of the freehold of its inheritable property as
emphatically
persona ecclesiae, and capable, as a sole
corporation of transmitting that inheritance to his successors. The
church wardens also were a corporate body clothed with authority
and guardianship over the repairs of the church and its personal
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 taxes for these and
other parochial purposes; for the appointment of church wardens to
keep the church in repair, and to provide books, ornaments,
&c., and lastly for 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
Page 13 U. S. 47
the ministers in each respective parish.
See statute
1696, ch. 11 -- 1727, ch. 6 -- and 1748, ch. 28 -- 2, Tucker's
Blackst.Com. Appx. 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 seized of
the freehold, in law or in equity,
jure ecclesiae, 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. 340b, 341, 342b.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 stat. 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 church wardens 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
Page 13 U. S. 48
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 the 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 asserted their right to all the property of the
Episcopal Churches 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 property of aid in the temporal concerns of religion,
but the more embarrassing considerations 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
Page 13 U. S. 49
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. Consistent 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 compulsive 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 Churches under the sanction of
the laws became the property of the state. Had the property thus
acquired been originally granted by the state or the King, there
might have been some color (and it would have been but a color) 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
Page 13 U. S. 50
arbitrary, oppressive and unjust, and endured only because it
could not be resisted. It was not forfeited, for the churches had
committed no offense. 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;
Culvin's
Case, 7 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
the exercise 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
Page 13 U. S. 51
republican government -- the right of the citizens to the free
enjoyment of their property regally 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, and therefore void. Whatever weight
such a declaration might properly have as the opinion of wise and
learned men as a declaration of what the law has been or is, it can
have no decisive authority. It is, however, encountered by the
opinion 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 cotemporaneous 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 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 loose 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
Page 13 U. S. 52
that such exclusive privileges attached to a private corporation
as are inconsistent with the new government may be abolished. In
respect also to public corporations which exist only for public
purposes, such as counties, towns, cities, &c., the legislature
may, under proper limitations, have a right to change, modify,
enlarge, or restrain them, securing however, the property for the
uses of those for whom and at whose expense it was originally
purchased. But that the legislature can repeal statutes creating
private corporations, or confirming to them property already
acquired under the faith of previous laws, and by such repeal can
vest the property of such corporations exclusively in the state or
dispose of the same to such purposes as they may please, without
the consent or default of the corporators, we are not prepared to
admit, and we think ourselves standing upon the principles of
natural justice, upon the fundamental laws of every free
government, upon the spirit and the letter of the Constitution of
the United States, and upon the decisions of most respectable
judicial tribunals in resisting such a doctrine. The statutes of
1798 ch. 9, and of 1801, ch. 5, are not, therefore, in our
judgment, operative so far as to divest the Episcopal Church of the
property acquired previous to the Revolution by purchase or by
donation. In respect to the latter statute, there is this further
objection that it passed after the District of Columbia was taken
under the exclusive jurisdiction of Congress, and as to the
corporations and property within that district, the right of
Virginia to legislate no longer existed. And as to the statute of
1798, ch. 9, admitting it to have the fullest operation, it merely
repeals the statutes passed respecting the church since the
Revolution, and of course it left in full force all the statutes
previously enacted so far as they were not inconsistent with the
present Constitution. It left, therefore, the important provisions
of the statutes of 1661, 1696, 1727, and 1748, so far as respected
the title to the church lands, in perfect vigor, 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 church wardens of the Parish of Fairfax and to
their successors
Page 13 U. S. 53
in that office forever. It is also averred in the bill that the
plaintiffs, together with two of the defendants (who are church
wardens) are the vestry of the Protestant Episcopal Church,
commonly called the Episcopal Church of Alexandria, in the Parish
of Fairfax, and that the purchase was 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 church wardens
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 Rolle Abr. 393, 4, 10. -- Com.Dig. tit. Esglise, F.
3.; 12 H. 7, 27, b.; 1 3 H. 7, 9b.; 37 H. 6, 30; 1 Burn's
Eccles.Law, 290; Gibs. 215.
It would seem, therefore, that the present deed did not operate
by way of grant to convey a fee to the church wardens and their
successors, for their successors, as such, could not take; nor to
the church wardens in their natural capacity, for "heirs" is not in
the deed. But the covenant of general warranty in the deed binding
the grantors and their heirs forever and warranting the land to the
church wardens and their successors forever may well operate by way
of estoppel to confirm to the church and its privies the perpetual
and beneficial estate in the land.
One difficulty presented on the face of the bill was that the
Protestant Episcopal Church of Alexandria was not directly averred
to be the same corporate or unincorporated body as the church and
Parish of Fairfax, or the legal successors thereto, so as to
entitle them to the lands in controversy. But upon an accurate
examination of the bill, it appears that the purchase was made by
the vestry "of the said parish and church," "for the use and
benefit of the said church in the said parish." It must therefore
be taken as true that there was no other Episcopal Church in the
parish, and that the property belonged to the church of Alexandria,
which in this respect represented the whole parish. And there can
be no doubt that the Episcopal members of the Parish of Fairfax
have still, notwithstanding a separation from the State of
Virginia, the same rights and privileges as
Page 13 U. S. 54
they originally possessed in relation to that church, while it
was the parish church of Fairfax.
The next consideration is whether the plaintiffs, who are
vestrymen, have, as such, a right to require the lands of the
church to be sold in the manner prayed for in the bill. Upon the
supposition that no statutes passed since the Revolution are in
force, they may be deemed to act under the previous statutes and
the common law. By those statutes the vestry were to be appointed
by the parishioners
"for the making and proportioning levies and assessments, for
building and repairing the churches and chapels, provision for the
poor, maintenance of the minister, and such other necessary
purposes, and for the more orderly managing all parochial
affairs,"
out of which vestry the minister and vestry were yearly to
choose two church wardens.
As incident to their office as 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 ecclesiae. 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
Page 13 U. S. 55
assent of the minister unless such assent be expressly dispensed
with by some statute.
On the whole, the majority of the Court is 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 from
claiming the same; and that a sale of the said land ought, for the
reasons stated in the bill, to the decreed upon the assent of the
minister of said church (if any there be) being given thereto; and
that the present church wardens 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.
