Joseph Story

“ But it has been supposed that the 'church of England of a particular parish,' must be a corporation for certain purposes, although incapable of asserting its rights and powers, except by its parson regularly inducted. And in this respect it might be likened to certain other aggregate corporations acknowledged in law, whose component members are civilly dead, and whose rights may be effectually vindicated through their established bead, though during a vacancy of the headship they remain inert; such are the common law corporations of abbot and convent, and prior and monks of a priory. ”

“ We will now consider what is the legal operation of such a grant at the common law; and how far it is affected by the laws of New Hampshire or Vermont.
At common law the church of England, in its aggregate description, is not deemed a corporation. It is indeed one of the great estates of the realm; but is no more, on that account, a corporation, than the nobility in their collective capacity. ”

“ The circumstance that a part of the territory or population was once under a common sovereign no more makes the states the same, than the circumstance that a part of the members of one corporation constitutes a component part of another corporation, makes the corporation the same. Nor can it be affirmed, in any correct sense, that the grants are of the same state; for the grant of the Defendants could not have been made by the state of Vermont, since that state had not at that time any legal existence ”

“ Fictitious persons could not be loving subjects; therefore the whole land would pass to the real persons. Most unquestionably the whole tract was granted to those capable of taking a title.
It will be seen by the grant, that the lands were not allotted, of course no partition was made amongst the patentees until after the charter was made. The grant was in common and not in severalty; therefore no inference of an intention to give each proprietor but a single share can be drawn from the circumstance of the whole town being required to be divided into sixty-eight equal shares. ”

“ For the reasons then that have been stated, a donation by the crown for the use of a non existing parish church, may well take effect by the common law as a dedication to pious uses, and the crown would thereupon be deemed the patron of the future benefice when brought into life. And after such a donation it would not be competent for the crown to resume it at its own will, or alien the property without the same comsent which is necessary for the alienation of other church property, viz: the consent of the ordinary, and parson, if the church be full, or in a vacancy, of the ordinary alone. ”

“ Without adopting the principle that the church can take an equitable interest in these premises, there would in many cases be an end to the workings of benevolence. Science might often lose her patrons; the needy their benefactors, and religion her warmest supporters.
Before we part with this point we will once more look at the act of 1805, upon which the Plaintiff founds his right to recover; and to its preamble, which declares the glebe lands in the nature of public reservations. If this means any thing, it must mean that the legal estate was reserved to the crown. ”

“ Every such church, of common right, ought to have a manse and glebe as a suitable endowment; and without such endowment it cannot be consecrated; and until consecration it has no legal existence as a church. ”

“ But was it competent for any man, or any number of men to enter upon this land, without any legal designation or organization identifying them to come within the description of persons for whose use this reservation was made? I think not. Some act of the town of Pawlet, or of the legislature of the state, or at least of Episcopal jurisdiction, became necessary to give form and consistency to the cestui que use, until such person or body became constituted and recognized. I see nothing to prevent the legislature itself from making an appropriation of this property. ”

“ There is a statute in Vermont, (see an act for the support of the gospel, passed in 1797, Revised Laws, Vol. 2, page 474) under which religious societies may be formed; but it does not appear, in the case, that the society in the town of Pawlet is formed under that act. But, if so formed, the members of such society are not confined to any particular limits, and if associated from 4 or 5 different towns, they may have a claim equally good to the glebe lands, in each town. ”

“ With respect to the freehold of a glebe, after the death of the parson and before the naming of a successor, both Fearne and Christian maintain the contrary of Blackstone's opinion but that is not at all this case. To meet this case, the Defendants must shew, that if a grant be made to a person not in esse, the land nevertheless passes out of the grantor, and remains in abeyance until, in the course of events, some person arises into being, who answers the description in the grant. ”

“ There must be a parish, a church with cure, a parson, legally and canonically introduced-four things are requisite to constitute a parson; 1. Holy orders: 2. Presentation or Collation; 3.Institution; 4. Induction; he must be a sole corporation. No part of the common law on this subject has been adopted in the state of Vermont; either by the coustitution, by statute, or by legal adjudications. ”

“ This statute, which extends equally to all denominations of Christians, constitutes societies or associations formed under it, corporations or quasi corporations; and enacts, 'That they shall have power to hold to themselves and successors, all such estates and interests, as they may hereafter acquire, by purchase or otherwise, and the same to sell and transfer, for the benefit of such association.' A society so formed, has the precise power given by the act and no other. The power is limited to future acquisitions; the power to sell is co-extensive with the power of acquisition. ”

“ Nothing is to be holden which shall be perpetually appropriated, as a glebe is. Such society is not empowered to succeed to estates, rights or interests, granted previous to their existence, although limited to objects similar to its own. Indeed the expression in the act seems to have intended an exclusion of such claim.
If the share in question should be considered as a reservation for a fature particular use, it then remained in the king, the donor, until a state of things should arise, when it could be applied to such use. This use is specified in the charter, viz: for a glebe, &c. ”

“ Nor is it a trust or use growing out of the sixty-eighth part granted to the respective proprietors, for it is exclusive of these shares by the very terms of the charter. The grant is in the same clause with that to the society for the propagation of the gospel, and in the same language, and ought, therefore, to receive the same construction, unless repagnant to the context, or manifestly requiring a different one. It is very clear that the society for the prepagation of the gospel take a legal, and not a merely equitable estate ”

“ The shares allotted to the public rights, are usually designated as the 'school right,' 'minister right' 'society right,' and 'glebe right,' respectively. These have never been claimed by the original proprietors. In New Hampshire (where the Plaintiff's counsel is better acquainted with judicial proceedings and judicial history than in Vermont) no legislative provision is recollected to have been made. The first settled minister has usually possessed the right designated for him. ”

“ It is also equally obvious that by the act authorizing the selectmen to take care of the glebe lots, and obtain possession by action of ejectment of those which were possessed by squatters, the legislature designed not to filch away the land from the church, and in the plenitude of their power to forget right, but to secure the title and promote the interests of the church. If not, why in the proviso are the Episcopal clergy preferred to other clergy in the management of the lands ”

“ The words of the granting clause are, 'Do give and grant in equal shares, unto our loving subjects, inhabitants of New Hampshire, and our other governments, and to their heirs and assigns forever, whose names are entered on this grant, to be divided to and amongst them, into sixty-eight equal shares, all that tract, or parcel of land, &c.' describing and bounding the whole township of Pawlet. ”

“ It is easy to perceive the class of cases, for which this provision was made; for example, when disputes about boundaries between two states arise. It is easy also to imagine many other cases, apparently within the letter, and yet not within the meaning, and so excluded by a just construction of the clause. ”

“ Individuals and societies may possess the same land, have the same mode of worship, and the same ordinances administered in the same manner, and submit to the same discipline, as far as may be effected without the assistance of the civil arm. ”

“ These capacities, attributes and rights, however, in order to possess a legal entity, and mach more to be susceptible of a legal perpetuity, must be invested in some natural or corporate body; for in no other way can they be exercised or vindicated. ”

“ Res vero sucroe, religiosoe, et sanctoe in nullius bonis sunt, quod enim divini juris est, id in nullius hominis bonis est, immo in bonis dei hominum censura, &c. Res quidam nullius dicuntur pluribus modis, &c. Item censura (ut dictum est,) sicut res sacroe religiosoe et sanctoe. Item casu, sicut est hoereditas jacens ante additionem, sed fallit in hoc, quia sustinet vicem personoe defuncti, vel quia speratur futura hoereditas ejus, qui adibit. ”

“ This endowment was in ancient times commonly made by an allotment of manse and glebe, by the lord of the manor, who thereupon became the patron of the church. Other persons also at the time of consecration often contributed small portions of ground, which is the reason, we are told, why, in England, in many parishes, the glebe is not only distant from the manor, but lies in remote, divided, parceis, Ken. ”

“ Bracton, 8, a. Justin. instit. lib. 2, tit. 1.-Co. Lit. 342, on Litt. § 447.
Nor is this a novel doctrine in the common law. In the familiar case where a man lays out a public street or highway, there is, strictly speaking, no grantee of the easement, but it takes effect by way of grant or dedication to public uses. Lade v. Shepherd, 2 Str. 1004. Hale in Harg. 78. So if the parson or a stranger, purchase a bell with his own money and put it up, and property passes from the purchaser, because, when put up, it is consecrated to the church, 11 H. 4, 12, 1 Kyd. Corp. ”

“ Dig. Abeyance A. Id. Ecclesiastical persons, C. 9.-Perk. § 709,) or whether, according to learned opinions in modern times, the fee should be considered as quodam modo vested in the parson for the benefit of his church and his successors, (Co. Lit. 341, a. Com. Dig. Ecclesiast. persons, C. 9.-Fearne, cont. rem. 513, &c. Christian's note to 2 Black. Com. 107, note 3.-Gilb. tenures 113. 1 Woodeson 312,) is not very material to to be settled; for at all events the whole fee would have passed out of the crown. Litt. ”