The Enquirer

GLEBE LANDS.

The first number of the Enquirer mentioned, that the important question relative to the fate of the Glebe lands, was at that time pending before the Court of Appeals. It mentioned the origin of this cause, and the successive steps which had brought it before that court. It promised to give a general view of the pleadings of counsel, and the opinions of this supreme tribunal. The imperfect abstract which the Editor now presents to the public, will fulfill this promise to the utmost extent of his legal attainments, and personal exertions. He would have been happy had this important subject called forth the attention and abilities of some more competent reporter, who would have been willing to have indulged the public curiosity with an immediate statement of the case. The only apology which he himself is able, or thinks necessary to offer for the publication of this imperfect abstract, is, that no such reporter has devoted his capacities to the elucidation of the subject.

In the bill of complaint, which was laid before the Chancellor, the grounds of the title, which the Protestant Episcopal Church claims in the Glebe lands, are thus exhibited: That the purchase of the said Glebe was for the benefit of the religious society called the Church of England, in the parish aforesaid, to be applied to the use of its ministers from time to time, but continuing as the property of the said society, even when there was no incumbent: that by the revolution, the establishment was destroyed, but the said society remained unimpaired in the rights of property; it being a fact, justified by the history of the day, that no member of the convention of 1776, in the most remote manner, ventured to urge for the deprivation of the church of their property: and the same convention, which sat again in November 1776, gave what your orators are now advised, was so far an extemporaneous exposition of the new constitution, as to make plainly and unequivocally the distinction between an establishment which was to create future burdens for the support of a particular clergy, and the right of the Church of England to the property already acquired: that your orators might, if it were necessary, refer to the various acts of the legislature, acknowledging the identity of the protestant episcopal church with the church of England in Virginia, and confirming the property of the latter to the former, as sources of title, although the said acts are repealed, a right vesting under a statute, not thereby divested by its repeal: that this identity being admitted by the members of the church of England itself, is not questionable by others, although if it were questioned, it is easily shown from the principles of a church: that, but for the incorporating act of 1784, and the subsequent acts of confirmation, the church of England, which the legislature itself repeatedly recognized to exist from the declaration of Independence to that time, would have been carried on by the appointment of vestries and ministers, as usual: that the petition for the act of incorporation proves that a new church was not created, but an old one preserved under a new name, for the avoidance of a denomination, which might be odious, and of cavils which the assumption of a new name might generate: that it is most unreasonable, that the modification of the old form, after being sanctioned by the legislature, should be construed into a legislative right, to deprive the religious society itself of its property, because the preservation of the old form was prevented by that very sanction: and that if a right of escheat is claimed, the usual course of a judicial inquiry ought to have been observed, on which, it is supposed, the right of the Commonwealth to the said Glebe, could never be obtained.

The answer of the Attorney General denied these several allegations, and demurred to so much of the bill as prayed for an injunction to stop the sale. An appeal was granted by the Chancellor to the Court of Appeals.

COURT of APPEALS, May 4th, 1804.
Present Judges Lyons, Carrington, Roane & Tucker.

Vestry and Church-Wardens of the parish of Manchester, in the county of Chesterfield,
vs.
Overseers of the Poor of the said County.

Mr. CALL (for the Appellants) laid down two positions:
1st. That the Glebes were vested in the church, when the act of 1801 passed.
2nd. That they were not divested by this act.

1st. They were vested in the church both by the laws which were passed before and after the revolution. (See a summary of those laws in the 2nd. part, vol. 1. Tuck. Plac.) The act of 1661 gave perpetual succession to the vestries. Hence they had the power of holding property and transmitting it to their successors. As this is one of the great rights of an incorporated company, the church may in this respect at least be considered as a corporation, although it had not received a technical charter, which should give it all the other rights of an incorporated company, such as the right of acquiring and alienating property—

Whatever property then is given to them at any one time, must be considered as belonging to it, so long as there remained any members of the church, who by this act are authorized to succeed to it. But the act of 1743 did confer certain property on it, inasmuch as it empowered the vestries to levy an assessment upon all tithable persons
in their respective parishes and apply it to the purchase of a Glebe for the use of the minister. Several laws were passed during & after our revolution, which acknowledged & respected this investiture of property. The act of 1776, passed by the very Assembly, which had overturned so many of our ancient institutions, expressly reserves to the use of the church, by law established, the several parts of the Glebe land already purchased. The act of 1784, which incorporates the church, gives to the minister (if there be one) and the vestrymen respectively and their successors forever, the power of holding the property already belonging to it in each parish. The act of 1786, which repeals this incorporating act, still saves to all religious societies, the property therein respectively belonging. So that in the whole chain of legislative proceedings, from 1745 to 1789 or 1801, he could not discover a single law which is not either silent on the rights of the church, or which does not expressly acknowledge and reserve its right to the Glebe land.

2d. The acts of 1789 and 1801, however, interrupt this uniform admission of a vested right. The first repeals all the preceding laws: the last appropriates the Glebes to such purposes as a majority of the parishioners might direct. Mr. Call, however, thought that these laws could not affect the rights of property. If rights be acquired under an existing law, they are not lost by its repeal. If rights be vested by law, they cannot be divested by law.

He hoped that the court would not in their judicial capacity sanction the attempt of the legislature to exercise a power, which was not given them by justice, by custom, or the constitution.

But (said Mr. C.) it is contended, that whatever rights were given to the Church before the revolution, were divested by that event; & whatever rights were acknowledged since the revolution, could not be given by the legislature, because the Bill of Rights expressly denies to them the exercise of any such power. Each of these positions is unfounded.

Why is it contended that the revolution destroyed the rights of the church? Because they say it abolished the church itself. And how is it contended that it abolished the church? Because they say, it abolished the kingly office, with all its appurtenances. Mr. Call, however, denied that in this country the king constituted any part of the church; that he exercised any authority in religious matters. This authority resided either in the clergy or in the civil officers. Even in England the revolution of 1688, did not abolish the church. Tho' Cromwell usurped the functions of the government, the rights of the ecclesiastical body continued inviolate.

Our revolution did not abolish the professorships of Wm. & Mary College. It has been changed from a College to an University, and old professorships have been put down: And yet by this change, as great as any which has taken place in the church, it has been held in the Court of Appeals, that the College is not dissolved.

It has been said that the pretensions of the Church are inconsistent with the Bill of Rights. Let the article be produced. The 16th article of the Bill of Rights relates not to temporal, but spiritual matters: to matters of faith and conscience, not of property. The general phrase used in this article is not to be taken in its utmost extent. The Court of Appeals has decided in a case (commonly called the case of county levies) that general words used for some one purpose should not apply to all other particular cases. The 4th section of the Bill of Rights denies to all persons particular privileges and emoluments. But the rights of the church do not come under either of those general descriptions of political favor. They are not privileges, because they do not confer on the church a right to do, or an immunity from doing any thing. They are not emoluments because they are not a profit confined to particular persons. It is admitted that a salary may be an emolument, but then it would require some new act of the government to confer it: whereas these ecclesiastical rights have been already vested. Mr. Call also asserted that this section applied to officers of government only: because it says nothing about religion: and because this interpretation is supported by the very best authority; the contemporaneous exposition of the act of 1776, passed by the very same convention, which had formed the Bill of Rights.

From this series of statements, Mr. Call concluded, that the rights were originally vested in the church; and that there was nothing in the act of 1801, nothing in the revolution, nothing in the Bill of Rights, which could divest them. But even if they did, this property would not revert to the public: the public would have no right to confiscate and sell it.

3d. Mr. Call produced some English authorities to prove, that a trust does not escheat to the crown. His conclusion was, that the property would not revert to the public, but to the original sellers.

As if our own system of jurisprudence would not justify this violation of church property, precedents have been sought for in other countries to sanction this proceeding. The Attorney General at the discussion of this case before a former court introduced the fate of the ecclesiastical property in France, with all the reasonings which have been assigned by its ablest advocate Mr. Intosh, to justify its confiscation. If Mr. Intosh be relied on as an authority, it would be sufficient to rebut it by the counter opinion of Calonne. But even from the positions of Mr. Intosh, no arguments can be gathered to countenance the confiscation of the Glebe lands in this state. His 1st position is, that the priesthood have only the usufruct of the property without the right of alienation; and that therefore the state has a right to confiscate it without any injustice to the usufructuaries. But, says Mr. Call, is not usufruct itself property? Is not a lease property? Even if it were otherwise, the position would not be applicable to our ecclesiastical property; because in France the property was given to the priesthood, but here it was given to the religious society for its own benefit. His 2nd. position is, that a salary in money may be taken away, why not then land, if the use of land be substituted for a salary in money? this may be true, said Mr. Call, but it does not apply. It may be just to take away a salary, but not to take away property already purchased and vested. Yet, however accurate the reasonings of Mr. McIntosh may have been on this subject, the particular case to which he applies them, is very different from our own. 1st. In France he asserts the property was conferred by the king: Calonne ascribes it to private benefactions. But here all the Glebes were not given by the state, or individuals: but most of them were acquired by the parishes. 2dly. McIntosh was speaking of the powers of a convention of the people, who were called upon to form a constitution: here the question relates to the powers of an ordinary legislature, acting under a constitution already formed. Surely the legislature, would have no power to revoke a grant to an individual for services: and wherein is the difference between rewarding an individual and a society for its services? The church was supposed to be a useful society: a grant of lands was made to it. How can the legislature then revoke this grant? Can it resume the endowment of Wm. & Mary College? If they have power in one case they have it in others. 3dly. McIntosh has pleaded the exigency of the times in justification of the confiscated property in France: but here what does the legislature perform? Without a single fault being laid to the church; without the smallest indemnification being allowed to it; without even the plausible pretext of state policy, its property is to be swept away.

So far from the position being true, that the rights of the church are contrary to the Bill of Rights, it may be contended, that this repealing law is itself unconstitutional. It is contrary to the 3d art. of the Bill of Rights, and to the 10th sec. art. 1. of the federal constitution. The first of these declares, that "government, is or ought to be, instituted for the common benefit, protection, and security of the people," &c. Now what kind of protection or security is that, where private property may be laid hold of by the legislature; where the rights that are vested in any society may be completely destroyed, without any indemnification, without a single fault, without any plea of public necessity? It is declared in the section of the federal constitution above referred to (among many other things) that "no state shall pass any ex post facto law." Can any act be a more open violation of this clause of the constitution than that of 1801? The legislature first vests certain rights in the church, and afterwards passes a law, which is intended to overset these rights. He hoped that the court would arrest the proceeding. He hoped that they would think with him, that it was an ex post facto law; and if they did, that they would exercise the same power which they had once exercised in the case of Turner vs. Turner, and declare the law unconstitutional and void.

After having made some remarks upon the jurisdiction of the Chancery Courts in this case, Mr. Call concluded his speech.

* Vindiciae Gallicae
[to be continued.]