Joseph Story

“ 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. ”

“ 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 that such exclusive privileges attached to a private corporation as are inconsistent with the new government may be abolished. ”

“ 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 ”

“ 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. ”

“ 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. ”

“ 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. ”

“ 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. ”

“ 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 ”

“ 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 ”