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Blackstone’s Commentaries:
with Notes of Reference (1803)

St. George Tucker

VOLUME 2, NOTE M
Summary View of the Laws Relative to Glebes and Churches

THE act of 1661, c. 1, enacts, “that there be a church decently built in each parish, unless any parish as then settled by reason of the fewness or poverty of the inhabitants be incapable of sustaining so great a charge; in which case such parishes shall be joined to the next great parish of the county, and a chapel of ease be built in such place, at the particular charge of that place.

1661, c. 2, For the making and proportioning the levies and assessments for building and repairing churches and chapels, provision for the poor, maintenance of the minister, and such other necessary uses, and for the more orderly managing all parochical affairs, vestries are appointed to be elected: but none shall be admitted to be of the vestry, who do not subscribe to be conformable to the doctrine and discipline of the church of England.

1651, c. 3, No minister shall be admitted, but such as shall produce to the governor a testimonial of his ordination by some bishop in England, and subscribe to be conformable to the orders and constitutions of the church of England.

1661, c. 10, Church wardens to keep the church in repair; to provide books, ornaments, etc. as the ability of the parish will permit.

1661, c. 3, [purvis]… That for the better encouragement and accommodation of the ministry, there be glebes laid out in every parish, and a convenient house built for the reception and abode of the minister according to his majesty’s instructions.

1667, c. 3, [purvis 156] …. The like liberty shall be granted for two acres of land, and no more, for erecting churches, as by that act is granted for the erection of mills (as at present) provided that in case of desertion of any structure the land shall revert to the first proprietor, he paying what he received for it.

1696, c. II.1 Recites, that whereas the law then in force entitled “glebes to be laid out” in making such provision, does appear very deficient and uncertain, it is therefore enacted, that the said act be repealed. And it is further enacted, that every vestry shall be, and are authorized and empowered, where the same is not already done, to purchase and lay out a tract of land for the glebe, in their discretion, and at the charge of their respective parishes; and likewise to build and erect a convenient dwelling house for the reception and abode of the minister of such parish. Provided always, that if the vestry of any parish shall find their parish to be so small and poor, as not to be able to allow and maintain a minister as aforesaid, that then upon application of the vestry to the governor, for the time being, that their parish may be united and consolidated to the next adjacent parish, the said governor is thereby desired to unite and consolidate the said parishes.

1727, c. 6, [Edi. 1733] …. In parishes where glebes are not •already purchased and appropriated, with convenient tenements for the habitation of the ministers, the vestry may purchase 200 acres of land at the least, for a glebe, and may erect thereon a convenient mansion house, and other necessary outhouses for the habitation of the ministers; and it is further enacted and declared that the vestry of every such parish are thereby authorized, empowered, and required to levy the charge of the said several buildings, and purchase of the glebe on the titheable persons in their respective parishes …. And the vestries of vacant parishes are empowered and required to put all the buildings upon the glebe of the parish into good and sufficient repair for the reception of the succeeding minister.

1748 c. 28, Re-enacts the provisions contained in the last mentioned act of 1727, c. 6, vestries right of presentation for twelve months.

1776 c. 2, Oct. Sess. All dissenters of whatever denomination, from the church by law established, shall be totally free and exempt from all levies, taxes, and impositions, whatever, towards supporting and maintaining the said church, as it now is, or hereafter may be established, and it’s ministers. With an exception as to arrears of salary, and engagements already entered into by vesteries, and provision for the poor …. The act then proceeds …. There shall, in all time coming, be saved and reserved to the use of the church, by law established, the several parts of the glebe land already purchased, the churches and all arrears of money or tobacco, arising from former assessments, or otherwise; and there shall be, moreover, saved and reserved, to the use of such parishes as may have received private donations for the better support of the said church and it’s ministers, the perpetual benefit and enjoyment of all such donations.

1779, c. 36, Oct. Sess. Repeals all and every act providing salaries for the ministers, and authorizing the vestries to levy the same; provided nevertheless, that the vestries might levy and assess all salaries and arrears of salaries due to ministers for their services to January 1,1777, and moreover might make such assessment on all titheables, as will enable them to comply with their legal engagements, entered into before the same day, etc.

1784, c. 88. The act for incorporating the protestant episcopal church, enacts, that every minister of the protestant episcopal church now holding a parish, either by appointment from a vestry, or induction from a governor, and all the vestrymen in the different parishes now instituted, or which hereafter may he instituted within the commonwealth, that is to say, the minister and vestrymen of each parish respectively, or in case of a vacancy, the vestry of each parish, and their successors for ever, are thereby made a body corporate and politic, by the name of “the ministry and vestry of the protestant episcopal church, in the parish where they respectively reside, and by the name, stile, and title aforesaid they and their successors shall, for ever, lawfully have, hold, use, and enjoy all and every tract or tracts of glebe land, already purchased, the churches and chapels already built, with the burying grounds belonging to them, and such as were begun and contracted for, before the first day of January, 1777, for the use of the parishes, with their hereditaments and appurtenances; and all books, plate, and ornaments, appropriated to the use of, and every other thing, the property of the late established church, to the sole and only proper use and benefit, of the protestant episcopal church, in the parish where the respective ministers and vestries reside; (except the glebe in the county of Augusta) and where the property is situate, and being, agreeable to the true intent for which it was purchased or given: and by the
name, stile, and title, aforesaid, they shall be capable in law to hold, maintain, and recover, all their estates, rights, and privileges, and to sue and be sued, etc. and have a common seal: and to take, acquire, and purchase lands, and to demise, alien, improve, and leave the same, glebe lands intended for the ministers’ residence excepted, unless during a vacancy, and to build and repair churches, and dwelling houses for the use of the minister, etc. All former laws relating to vestries and church-wardens, and to the support of the clergy repealed, and all former vestries dissolved, the next Easter day, etc. etc. etc.

1785, c. 37. Provides for the election of vestries, where the same had not been done pursuant to the last-mentioned act of 1784, c. 88.

1786, c. 12, Repeals the act for incorporating the protestant episcopal church: saving to all religious societies the property to them respectively belonging, who are thereby authorized 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. And to guard against all doubts and misconstructions, it is further enacted and declared, that so much of all laws then in force as prevents any religious society from regulating it’s own discipline, shall be, and are thereby repealed.

1788, c. 47. Declares, that the trustees appointed in the several parishes to take care and manage the property belonging to the protestant episcopal church, and their successors, shall, to all Intents and purposes, be considered as successors to the former vestries, and shall have the same power of holding and managing all the property formerly vested in them, whether for charitable purposes, by private donation, or in trust for the use of individuals.

1788, c. 53. Enacts, that the trustees of any religious society, shall have full power and authority to prosecute suits heretofore instituted, and now depending, upon bond, or otherwise, for any arrearages due to the different parishes, with the churchwardens.

1798, c. 9. Recites, that “Whereas the constitution of the state of Virginia, has pronounced the government of the king of England, to have been totally dissolved by the revolution: has substituted in place of the civil government so dissolved, a new civil government; and has, in the bill of rights, excepted from the powers given to the substituted government, the power of reviving any species of ecclesiastical or church government, in lieu of that so dissolved, by referring the subject of religion to conscience: And whereas the several acts presently recited, do admit the church established under the regal government, to have continued so, subsequently to the constitution; have bestowed property upon that church; have asserted a legislative right to establish any religious sect; and have incorporated religious sects, all of which is inconsistent with the principles of the constitution, and of religious freedom, and manifestly tends to the establishment of a national church: For prevention whereof …. It is, therefore, enacted:

That the several laws, the titles whereof are as follow: “An act, for exempting the different societies of dissenters, from contributing to the support and maintenance of the church as by law established, and its ministers, and for other purposes therein mentioned” …. “An act, to repeal so much of the act, for the support of the clergy, and for the regular collecting and paying the parish levies, as relates to the payment of the salaries heretofore given to the church of England” …. “An act, for incorporating the protestant episcopal church” …. “An act, to authorize the election of certain vestries.” …. “An act to repeal the act, for incorporating the protestant episcopal church, and for other purposes” …. “and, “An act for giving certain powers to the trustees of the property of the protestant episcopal church,” be, and the same are hereby repealed, and declared to be void and of none effect. And it is further declared, that the law, intituled, “An act, for establishing religious freedom,” is a true exposition of the principles of the bill of rights and constitution.

1801, c. 5, Further recites, that, “Whereas the general assembly, on the twenty-fourth day of January, one thousand seven hundred and ninety-nine, by their act of that date repealed all the laws relative to the late protestant episcopal church, and declared a true exposition of the bill of rights and constitution respecting the same, to be contained in the act, intituled “An act for establishing religious freedom,” thereby recognizing the principle, that all property formerly belonging to the said church, of every description, devolved on the good people of this commonwealth, on the dissolution of the British government here, in the same degree in which the right and interest of the said church was derived therein from them: And although the general assembly possesses the right of authorizing a sale of all such property indiscriminately, yet being desirous to reconcile all the good people of this commonwealth, it is deemed inexpedient at this time to disturb the possession of the present incumbents.”

It is therefore enacted by the general assembly, That the overseers of the poor and their successors, or a majority of them, within each county of this commonwealth, wherein any glebe land is vacant, or shall become so, by the death or removal of any incumbent, shall have full power and authority, and they or a majority of them are hereby directed, on giving at least thirty days public notice, at the front door of the court-house of their county, to sell all such lands and appurtenances, and every other species of property incident thereto, on the premises, to the highest bidder, on twelve months credit, taking bond with good security for the amount thereof payable to themselves and their successors; provided that no sale of any such property shall take place, where any person is in possession thereof, under a lease from any person or persons in behalf of the said church, whether called trustees or not, prior to the passing of this act, until the said lease shall expire; and all sums of money or tobacco due thereon, or to become due, shall be recovered by action in the names of the said overseers of the poor, or a majority of them conducting every such sale, or their successors, on receiving satisfactory security for the amount thereof, be, and they are hereby authorized and directed, to convey all such property sold by them as aforesaid, to the purchaser or purchasers thereof, by good and sufficient deeds for that purpose; that in all cases where any person or persons may have received any sum or sums of
money or tobacco, for the use of the episcopal church as established under the former government, and shall not have paid the same as directed by law, the said overseers of the poor and their successors, or a majority of them, shall be entitled to receive the same, and on non-payment thereof, to recover it by action in any court of record within this commonwealth: That when any person or persons, other than an incumbent or his tenant, shall have had the use of any glebe land or other property incident thereto, and may not regularly have accounted for the profits of the same, they shall hereafter account to the said overseers of the poor, or a majority of them, of the county in which such property lies; and in case any such person or persons, their executors or
administrators refuse to account accordingly, the said overseers of the poor or their successors, may sue for and recover the same, in any court of record within this commonwealth. That in all cases where such property is in possession of any incumbent or his tenant, either or both of them shall be restrained from the commission of waste, in like manner as other tenants for life or years may be, by the said overseers of the poor or their successors, in whom the right of action for that, and the purpose of carrying this act into effect, is hereby vested. That in every case where the overseers of the poor, or any one or more of them in any county, shall have good reason to believe, that the incumbent therein shall be about to remove any or the whole of the personal estate, which he holds as formerly belonging to the episcopal church from such county, they or any one or more of them shall upon application to any magistrate therein, obtain trom him an attachment which he is hereby authorlsed to grant, against the estate so about to be removed, upon the execution of which, and the return thereof, being made to the next court of such county, the said court may compel the said incumbent, on due proof thereof, to give bond with sufficient security; not to remove the said property, or any part thereof, from the premises; and, in case of refusal, the said court may order the said property to be delivered to the said overseers of the poor, and their successors, or a majority of them, to be by them disposed of, as in other cases.
That in all cases, where there shall be any just demand, unpaid by any parish, the said overseers of the poor and their successors, or a majority of them, in every county comprehending such parish, or the greater part thereof, shall, from any of the funds aforesaid, before they are otherwise applied, pay the same: and shall then be entitled to a credit with the overseers of the poor of the county comprehending the residue of such parish, for their proportion thereof. That in cases where a glebe shall be in, or a parish run into, more counties than one, the overseers, as aforesaid, of the county wherein the glebe, or the greater part thereof, shall lie, shall sell the same, as aforesaid; and in all cases, the said overseers, and their successors, or a majority of them, shall appropriate the money
arising therefrom, to the poor of such parish or to any other objects, which a majority of the freeholders and housekeepers therein, may direct, by a writing from under their hands directed to the said overseers. And in all other cases the the money arising therefrom, as aforesaid, shall be, by the said overseers of the poor, or a majority of them, in the counties respectively, applied in like manner, unless directed otherwise as aforesaid; Provided …. That nothing herein contained, shall authorize an appropriation to any religious purpose, whatsoever …. That the said overseers of the poor or a majority of them, or their successors, shall meet as often as they may deem it necessary, for the purpose of carrying this act into effect. That the overseers of the poor, and their successors in each county where any such property remains, shall perform all the duties required of them, respectively, by this act, under the penalty of two hundred dollars each, to be recovered in any court of record, by any one who will sue for the same. That the said overseers and their successors or a majority of them, who shall perform the duties hereby required, shall be entitled to receive for advertising, selling and conveying, any of the said property, a commission of three per cent. and for collecting and appropriating any of the funds by them received, three per cent. more; and shall be accountable to their successors, as in other cases. That nothing herein contained shall authorize a sale of the churches and the property therein contained,
or the church-yards, nor in any manner affect any private donation made prior to the first day of January one thousand seven hundred and seventy-seven, for church and other purposes, where there is any person in being entitled to take the same under any private donor; nor to affect the property of any kind, which may have been acquired by private donations, or subscriptions by the said church, since the date last mentioned.”

Thus far what may be considered as public acts …. there are a multiplicity of private acts,2 scattered among the sessions acts of our legislature which may contribute to throw an additional light upon this subject.

From the whole of these private acts, it may be collected, that the glebes and churches were purchased at the expense of the parishioners generally …. That they were considered as having an interest therein …. that on the division of parishes, the inhabitants of one part of the parish, were frequently reimbursed by the other for their contributions towards the purchase of the glebe and church for the first parish …. or the glebes were sold, the money divided between the parishes in proportion to their number of titheables, and vested in the vestries respectively for the purpose of purchasing other glebes. It also appears that in some instances, by a special provision in the acts, the vestries were declared to be persons capable of taking the conveyances and holding the lands.

Since the preceding note was transcribed for the press, the following report of a case in the high court of chancery at Richmond, has been published in several of the newspapers; although the editor cannot vouch for its authenticity, he deems it of too much importance to be pretermitted.

The question relative to the glebe lands which has, for many years, excited so much attention in this country, has been discussed at much length, during the present term of the high court of chancery. At the last session of assembly an act passed, declaring that the overseers of the poor in each parish, where there was no incumbent, should proceed to sell the glebe, and apply the money to such a purpose as the majority of the parishioners should direct. This property which was formerly claimed and held by the church of England, has, since the revolution, been claimed by the protestant episcopal church as the successors of the church of England. The overseers of the poor in the parish of Manchester and county of Chesterfield, were about to proceed to execute the law of the last session; and, in order to stop their proceedings, the church wardens and vestry of that parish applied to the chancellor for an injunction to stay the sale: In their bill the complainants contended that the property in the glebe was vested In the vestry and church wardens for the benefit of the church of England; that all the rights of that church now belonged to the protestant episcopal church; that the legislature had, by many successive acts, recognized and secured the rights of the present church; and that the last act of the legislature attempting to divest those rights was void.

In opposition to this, it was contended …. that the revolution had completely destroyed every thing like an established church in this country; that the bill of rights guaranteed the right of religious freedom, and inhibited any preference of one sect to another; that the church of England being destroyed by the revolution, the property given to support it revested in the community; that the acts which had passed since the revolution, some of which vested the property of the church of England in the protestant episcopal church, and one of which incorporated that church, were contrary to the bill of rights and constitution, and therefore void; that it followed that the act of the last session was valid, and that the court ought not to award the injunction.

After the arguments on both sides were concluded the chancellor proceeded to give his decision. He examined into the rights of the church and the effect of the revolution on them: he Inquired how far the principles of civil and religious freedom, as declared by our bill of rights, and secured by our constitution, were inconsistent with the pretensions of the church; and their enjoyment of property, which was originally given for the support of an English hierarchy; he refuted the arguments which attempted to show any injustice in the act of the legislature; and demonstrated, that by restoring it to be disposed of by the majority of the parishioners, it effectuated the purposes of justice, without contravening the rights of property, or violating the approved maxims and rules of law; and finally decided that the law of the last session (1801. c. 5.) was valid, and refused to award an injunction to stay the sale of the glebe of the Manchester parish which was, confessedly, vacant.

Similar applications being made respecting a glebe in the parish of Loudon, and one in the county of Fauquier, as the bill stated that they had incumbents at the time the law passed, and at present; and, as they did not come within the law, provided the allegations were true, he awarded the injunctions; leaving it to the overseers of the poor to controvert the fact of the incumbency if they thought fit …. He further directed the bill, in the case in which the validity of the law was called in question, to be amended, that the attorney-general, on the part of the commonwealth, might be made a party; so that by a demurrer to the bill, he might, if he chose, bring on the question in such a shape as would allow an appeal to the court of appeals, that this subject which has so long agitated this country should receive the solemn decision of that tribunal.3

During the pendency of this important question, it would be equally presumptuous, and indecorous in the editor to express any opinion upon the subject, (had he formed one) as it might relate either to the merits of the question, or the constitutionality of the several laws, on which each party seems to rely for the support of their opposite claims. Nevertheless, he cannot, consistently with his own feelings and impressions, refrain from addressing some few hints to those who may be called upon to discharge the important duty of legislators, upon the subject of a general provision to be made by law for the support of those who may be willing to undertake the office of instructors in morality and religion, without regard to sects, or denominations, and without preference to any. This he does with the greater diffidence, as he has reason to believe the subject was once discussed in the legislature, with consummate ability, both by the advocates, and opposers of the measure. As he was not happy enough to hear the debate, a difference of sentiment from that which then prevailed, is perhaps attributable to that cause, only. He therefore respectfully submits to the candid opinion of his enlightened countrymen, the following questions.

Is it not presumable that a steadfast belief, and thorough conviction of the existence of a Supreme Being; of his attributes, and his providence; of the immortality of the soul, and of a future state of conscious existence, has, or may have a powerful effect upon the moral conduct of all who sincerely embrace and believe in those doctrines? And is it not equally presumable that the moral character of every man has a powerful influence over his social conduct?

Is it probable, that the great bulk of mankind, by the mere light of their own reason and reflection, unassisted by the reason and reflections of others, will imbibe such a conviction, and belief in these respects, as to produce an equal effect upon their moral conduct, as if they had received such aids?

Is it not probable, that those who have devoted their lives to the study of the divine nature, and of the nature of moral obligation and social duty; and who feel an unfeigned conviction of their truth and importance, will be more capable of enforcing a sincere conviction and belief of them in others, than those who have not received the benefits of education, or, who are compelled by imperious necessity to devote the greater part of their time to other avocations and pursuits?

Is not the culture of morals, and of social duty, an object worthy of the attention of every wise legislature?

Doth any clause or article of the bill of rights or constitution of the commonwealth inhibit the legislature from imposing a reasonable tax for those purposes?

If those purposes can be most effectually promoted by the employment of men of learning and ability, and of exemplary lives and conversation as teachers of the duties enjoined by religion and morality, will not a wise legislature have recourse to such means for the culture of morals, and of social duty?

If the last question be answered in the affirmative, it may not be deemed improper to suggest the following skeleton of a plan for that purpose.

Let the courts of the several counties within the commonwealth impose a yearly tax within their respective counties, in proportion to the taxes payable to the commonwealth for the same year, and not exceeding one tenth, nor less than one twentieth part of the tax, which each person pays to the commonwealth, to be set apart and unalienably appropriated to the support of teachers of religion and morality, and for the erection and keeping in repair places of worship, and public schools. Let all persons whose tax to the state shall amount to less than one dollar, be wholly exempt from this tax.

Let the tax be collected by the sheriffs at the same time that the taxes to the state are collected, and let them be allowed the same commissions thereon, and be subject to the same penalties in case of default; and let them pay the same to the clerk of the county, within ten days of the time that the public taxes are payable into the treasury. Let one fourth part of the sum so collected, be unalienably appropriated to the erection of places of worship and public schools, in such parts of the county as the court, or a majority of the inhabitants of the several parishes, sections, or sub-divisions of the county, respectively, may choose; and let the residue be paid annually to such teacher of religion and morality, duly authorized by law to solemnize marriages, as the person paying the same may direct.

Let the clerk of the county be allowed a moderate commission on the sums which he may receive and pay. Let him enter, gratis, the names of all persons paying any tax for the support of the teachers of religion and morality, together with the name or names of the person to whom the payer shall direct the same to be paid, and the amount of each person’s tax, in a book to be kept for that purpose; let him, when required, furnish the persons entitled to receive the tax with a list of the names of those who pay it, and the amount thereof, after deducting his commissions and the sheriffs, and the fourth part set apart for useful and necessary buildings, as before mentioned. Let him receive one cent, and no more, for every name contained in such list, from the person requiring it.

Let any person be at liberty, at any time, to withdraw the payment of his tax from the person to whom he may formerly have directed the same to be paid, and to authorize the payment thereof to another, provided the same be done before the tax shall come into the hands of the clerk.

Let every teacher of religion, claiming any benefit under these regulations, be required and compelled to reside in the county from which the tax is collected; and to keep a public school therein, for the teaching of reading, writing, and arithmetic; and to instruct the children of all persons who do not pay a tax of two dollars yearly to the state, for three years, gratis; and all other children within the county, on moderate terms.

If there be any thing in this imperfect sketch incompatible with the most perfect liberty of conscience in matters of religion, the writer has not made the discovery; and making it, would be among the first to disapprove of it.


NOTES

     1.    The title of this act, occurs in the Edi. of 1733, page 109. “An act for the better support and maintenance of the clergy.” …. In a manuscript (page 175,) collection of public papers lent me by Mr. William Hornsby, which appears to be very old, there is a copy of the act at large, from which I have extracted what is here inserted. See also V. L. abridged, Edi. 1722, p. 17.
     2.    See acts of 1734, c. 19, 20. 1736, c. 16,22. 1738, c. 20. 1740, c. 4. 1742, c. 30, 31. 1744, c. 19, 23, 25, 27, 31. 1747, c. 2. 1753, c. 19, 21. 1755, c. 19. 1762, c. 26, 28, 31, 33, 34. 1769, c. 45, 49, 50, 51, 61, 62, 64, 67. 1772, c. 47, 49, 58. Octo. 1776, c. 44. May 1777, c. 21, 25, 26. Octo. 1777, c. 30, 34, 37. May 1778, c. 13. Octo. 1778, c. 31. May 1779, c. 37, 39. Octo. 1779. c. 36, 46, 49. Octo. 1780, c. 19 …. The above are all private acts. See also 1730, c. 18, 19. 1732, c. 16, 18.
     3.    Extracted from the Petersburg Intelligencer of September, 28,1802.