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tion, either ci

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copal church

vious to the

unconstitution

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The act of

1798, ch. 9,

TERRETT the church wardens of the said parish and church for & OTHERS the time being, and to their successors in office, for the ซ. use and benefit of the said church in the said parish. TAYLOR That in the year 1784 the legislature of Virginia, & OTHERS. passed an act, entitled "an act for incorporating the Protestant Episcopal church;" by the third section of cured under which, power is given to the ministers and vestry of the the constitu- Protestant Episcopal church to demise, alien, improve vil, political, or and lease any lands belonging to the church. That the religious. The acts of act of 1786, entitled " an act to repeal the act for incor1798, ch. 9, porating the Protestant Episcopal church, and for other and 1801, ch. purposes," declares that the act of 1784 shall be repealthey go to di- ed, but saves to all religious societies the property to vest the Epis- them respectively belonging, and authorizes them to apof the property point, from time to time, according to the rules of their acquired pre- sect, trustees who shall be capable of managing and aprevolution by plying such property to the religious use of such sociepurchase or ties. That under this last law the Complainants condonation, are ceive they have the power of requiring the church waral and inopera dens of their church, who are the trustees appointed by the vestry, under the direction of the vestry comtemplated by the last mentioned act, to sell or otherwise dismerely repeals pose 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 regula-tions 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 Church-ward- was purchased, and contributed to the purchase thereof, ens are not a That some of them reside in the county of Fairfax and corporation for holding state of Virginia, but have pews in the church, and con-1 lands. Church tribute to the support of the minister. That the lands are wasting by tresspasses, &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 there be one) are opposed in their wishes by the Defendants, Terrett and the vestry. and others, who are overseers of the poor for the county of Fairfax, and who claim the land under the act of Virginia of the 12th of January, 1802, authorizing the

the statutes

passed respecting the church since the revolution;

and left in full operation all

the statutes previously enacted, so far as they are not inconsis

tent with the

present constitution

lands cannot

be sold withou the joint consent of the parson (it

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sale of certain glebe lands in Virginia, which act was TERRETT not passed until after the district of Columbia was se- & OTHERS parated from the state of Virginia: in consequence of which claim they are unable to sell the lands, &c. TAYLOR wherefore they pray that the Defendants, Terrett and & OTHERS. 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.

The cause was argued at last term by JONES, for the Plaintiffs in error, and by E. I. LEE and Swann, for the Defendants in error.

The opinion of the Court is so full that it is deemed unnecessary to report the arguments of counsel.

February 17th. Absent....JOHNSON, J. and TODD, J.

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, or clothed with corporate powers; for in equity, as to objects which the

TERRETT religious use of such societies; and the statute of 1788, & OTHERS Ch. 47, declared that the trustees appointed in the seve

v. ral parishes to take care of and manage the property of TAYLOR the Protestant Episcopal church, and their successors, &OTHERS. 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 propriety 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 equal

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ly entitled to the free exercise of religion according to TERRETT the dictates of conscience," as the bill of rights of Vir- & OTHERS ginia declares, yet it is difficult to perceive how it follows as a consequence that the legislature may not en- TAYLOR act laws more effectually to enable all sects to accom- & OTHERS. plish 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 associa tions. 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 bene factions 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 VOL. IX.

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TERRETT arbitrary, oppressive and unjust, and endured only be & OTHERS cause it could not be resisted. It was not forfeited; for the churches had committed no offence. The dissolution TAYLOR of the regal government no more destroyed the right to & OTHERS. 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 commor. 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, s John. c. 109. Calvin'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

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