| 9 Cranch 43,
3 L.Ed. 650 U.S.
Supreme Court TERRETT
AND OTHERS v. TAYLOR
AND OTHERS. 13
U.S. 43 Feb.
17, 1815
Absent.
JOHNSON, J. and TODD, J.
ERROR
to the Circuit Court for the district of Columbia, sitting in the county of Alexandria.
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 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 the 27th of 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 the 18th of 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 *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for other purposes,' declares that the act of 1784 shall be repealed, but saves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 comtemplated 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 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 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 the 12th of January,
1802, authorizing the *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. West
Headnotes Constitutional
Law k84.5(9) 92k84.5(9) (Formerly
92k84) The
declaration in the bill of rights of Virginia providing that "all men are equally
entitled to the free exercise of religion" was not violated by St.1776, c. 2,
confirming to the Episcopal Church its right to lands acquired before the Revolution,
as an "established" church.
Constitutional
Law k84.5(9) 92k84.5(9) (Formerly
92k84) St.1784,
c. 88, and St.1785, c. 37, making the minister and vestry, and their successors,
forever, a corporation to hold the property of the Episcopal Church, and giving
such corporation power to purchase, hold, and alien the property, were valid and
enforceable, notwithstanding the property had been acquired by the church before
the Revolution, when it was an established church,--a characteristic which it
had since lost, as being contrary to the doctrine of religious freedom pervading
the constitution. Constitutional
Law k129 92k129
Under
the clause of the constitution which prohibits the states from passing any law
impairing the obligation of a contract, a state legislature cannot repeal statutes
confirming to private corporations property already acquired upon the faith of
previous laws, and by such repeal vest the property of such corporations exclusively
in the state, without the consent or default of the corporators.
Constitutional
Law k319.1 92k319.1 (Formerly
92k319) The
Statutes of 1798, c. 9, and of 1801, c. 5, asserting the right of the
legislature to all the property of the Episcopal church, and repealing the previous
statutes conferring the title to such property upon the church, were void, as
being an unwarrantable confiscation by the legislature of property to which it
had no color of title, and which was legally vested in such church.
Estoppel
k23 156k23
A
covenant of general warranty in a deed of land, binding the grantors and their
heirs forever, and warranting the land to churchwardens and their successors forever,
though it cannot operate as a grant, may operate by way of estoppel to confirm
to the church and its privies the perpetual and beneficial interest in the land.
Religious
Societies k1 332k1
The
religious establishment of England was adopted by the colony of Virginia, and
also the common law on that subject, so far as it was applicable to the circumstances
of the colony. Religious
Societies k4 332k4
By
the common law, the capacity of churchwardens to hold property for the church
is limited to personalty; and no statute of Virginia makes them a corporation
for the purpose of holding lands.
Religious
Societies k18 332k18
By
the colonial statutes and the common law, lands purchased for the use of the Episcopal
Church became vested in the church, and the minister for the time being was seised
of the freehold. Religious
Societies k18 332k18 Fund.
Conceding
that the title to all Episcopal Church lands devolved on the state by the American
Revolution, nevertheless Act Va.1776, c. 2, operated as a new grant thereof to
the use of the Episcopal Church, vesting an indefeasible and irrevocable title.
Religious
Societies k18 332k18
The
property acquired by the Episcopal Church did not, at the Revolution, become the
property of the state, but the rights of property remained to the church unimpaired,
notwithstanding the Revolution.
Religious
Societies k18 332k18
Lands
vested in the Episcopal Church, by virtue of the common law and statutes of Virginia,
are in abeyance during a vacancy in the ministry; the minister being seised of
a freehold, in jure parochiae. *45
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, on clothed
with corporate powers; for in equity, as to objects which the *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 enquity 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 pre- suppose 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 *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 ecclesioe,
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
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 authirizing 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 *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 *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 managment 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 *50 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. Culvin's
case, 7, co. 27. And this principle is equelly 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 *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 farther, and hold that the statutes
of 1784, ch. 88, and 1785, ch. 37, were no infringment
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 churehes 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 *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 farther 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 *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, 9, b.--37 H. 6, 30.--1 Burn's Eceles. 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 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 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 *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 vestry-men, 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 parishoners '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 ecclesioe.
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 vestry-men 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 *55 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 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.
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