US SUPREME COURT DECISIONS

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 chanrobles.com-red

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 chanrobles.com-red

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.