USA > Virginia > Old churches, ministers and families of Virginia, Vol. II > Part 49
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gislature asserted their right to all the property of the Episcopal churches in the respective parishes of the State; and, among other things, directed and authorized the overseers of the poor, and their successors, in each parish wherein any glebe-land was vacant or should become so, to sell the same, and appropriate the proceeds to the use of the poor of the parish.
It is under this last statute that the bill charges the defendants (who are overseers of the poor of the parish of Fairfax) with claiming a title to dispose of the land in controversy.
This summary view of so much of the Virginia statutes as bears directly on the subject in controversy presents not only a most extraordinary di- versity of opinion in the Legislature, as to the nature and propriety of aid in the temporal concerns of religion, but the more embarrassing considera- tion of the constitutional character and efficacy of those laws touching the rights and property of the Episcopal Church.
It is conceded on all sides, that at the Revolution the Episcopal Church no longer retained its character as an exclusive religious establishment. And there can be no doubt that it was competent to the people and to the Legislature to deprive it of its superiority over other religious sects, and to withhold from it any support by public taxation. But, although it may- be true that "religion can be directed only by reason and conviction, not by force or violence," and that "all men are equally entitled to the free exercise of religion according to the dictates of conscience," as the Bill of Rights of Virginia declares, yet it is difficult to perceive how it follows, as a consequence, that the Legislature may not 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 Con- stitution 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 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. And that these purposes could be better secured and cherished by corporate powers cannot be doubted by any person who has attended to the difficulties which surround all voluntary associations. While, therefore, the Legislature might exempt the citizens from a compulsory 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.
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 posi- tion that, at the Revolution, all the public property acquired by the Epis-
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copal churches under the sanction of the laws became the property of the State. Had the property thus acquired been originally granted by the State, or the King, there might have been some colour (and it would have been but a colour) for such an extraordinary pretension. But the property was, in fact and in law, generally purchased by the parishioners or ac- quired by the benefactions of pious donors. The title thereto was inde- feasibly vested in the churches, or rather in their legal agents. It was not in the power of the Crown to seize or assume it, nor of the Parliament itself to destroy the grants, unless by the exercise of a power the most arbi- trary, oppressive, and unjust, and endured only because it could not be resisted. It was not forfeited; for the churches had committed no offence. The dissolution of the regal government no more destroyed the right to possess or enjoy this property, than it did the right of any other corpora- tion or individual to his or its own property. The dissolution of the form of government did not involve in it a dissolution of civil rights, or an abolition of the common law, under which the inheritances of every man in the State were held. The State itself succeeded only to the rights of the Crown, and, we may add, with many a flower of prerogative struck from its hands. It has been asserted, as a principle of the common law, that the division of an empire creates no forfeiture of previously-vested rights of property. Kelly v. Harrison, 2 John. C. 29. Jackson v. Lunn, 3 John. C. 109. Calvin's Case, 8 Co. 27. And this principle is equally consonant with the common sense of mankind and the maxims of eternal justice.
Nor are we able to perceive any sound reason why the Church lands escheated or devolved upon the State by the Revolution any more than the property of any other corporation created by the royal bounty or esta- blished by the Legislature. The Revolution might justly take away the public patronage, the exclusive cure of souls, and the compulsive taxation for the support of the Church. Beyond these we are not prepared to admit the justice or the authority of legislation.
It is not, however, necessary to rest this cause upon the general doc- trines already asserted; for, admitting that by the Revolution the Church lands devolved on the State, the statute of 1776, ch. 2, operated as a new grant and confirmation thereof to the use of the Church.
If the Legislature possessed the authority to make such a grant and confirmation, it is very clear to our minds that it vested an indefeasible and irrevocable title. We have no knowledge of any authority, or principle, which could support the doctrine that a legislative grant is revocable in its own nature, and held only durante bene placito. Such a doctrine would uproot the very foundations of almost all the land-titles in Virginia, and is utterly inconsistent with a great and fundamental principle of a republi- can government,-the right of the citizens to the free enjoyment of their property legally acquired.
It is asserted by the Legislature of Virginia, in 1798 and 1801, that this statute was inconsistent with the Bill of Rights and Constitution of that State,
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and therefore void. Whatever weight such a declaration might properly have as the opinion of wise and learned men, as a declaration of what the law has been or is, it can have no decisive authority. It is, however, en- countered by the opinions successively given by former Legislatures, from the earliest existence of the Constitution itself, which were composed of men of the very first rank for talents and learning. And this opinion, too, is not only a contemporaneous exposition of the Constitution, but has the additional weight that it was promulgated or acquiesced in by a great ma- jority, if not the whole, of the very framers of the Constitution. Without adverting, however, to the opinions on the one side or the other, for the reasons which have been already stated, and others which we forbear to press, as they would lead to too prolix and elementary an examination, we are of opinion that the statute of 1776, ch. 2, is not inconsistent with the Constitution or Bill of Rights of Virginia. We are prepared to go yet further, and to hold that the statutes of 1784, ch. 88, and 1785, ch. 37, were no infringement of any rights secured, or intended to be secured, under the Constitution, either civil, political, or religious.
How far the statute of 1786, ch. 12, repealing the statute of 1784, ch. 88, incorporating the Episcopal churches, and the subsequent statutes in furtherance thereof of 1788, ch. 47 and ch. 53, were consistent with the principles of civil right or the Constitution of Virginia, is a subject of much delicacy, and perhaps not without difficulty. It is observable, however, that they reserve to the churches all their corporate property, and authorize the appointment of trustees to manage the same. A private corporation created by the Legislature may lose its franchises by a misuser or a non- user of them; and they may be resumed by the Government under a judi- cial 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 pri- vate corporation as are inconsistent with the new Government may be abolished. In respect, also, to public corporations, which exist only for public purposes, such as counties, towns, cities, &c., the Legislature may, under proper limitations, have a right to change, modify, enlarge, or re- strain them; securing, however, the property for the uses of those for whom and at whose expense it was originally purchased. But that the Legislature can repeal statutes creating private corporations, or confirming to them property already acquired under the faith of previous laws, and by such repeal can vest the property of such corporations exclusively in the State, or dispose of the same to such purposes as they may please, without the consent or default of the corporators, we are not prepared to admit. And we think ourselves standing upon the principles of natural justice, upon the fundamental laws of every free government, upon the spirit and the letter of the Constitution of the United States, and upon the decisions of most respectable judicial tribunals, in resisting such a doctrine.
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The statutes of 1798, ch. 9, and of 1801, ch. 5, are not, therefore, in our judgment, operative so far as to divest the Episcopal Church of the pro- perty acquired, previous to the Revolution, by purchase or by donation. In respect to the latter statute, there is this further objection, that it passed after the District of Columbia was taken under the exclusive jurisdiction of Congress, and, as to the corporations and property within that District, the right of Virginia to legislate no longer existed. And as to the statute of 1798, ch. 9, admitting it to have the fullest operation, it merely repeals the statutes passed respecting the Church since the Revolution; and, of course, it left in full force all the statutes previously enacted, so far as they were not inconsistent with the present Constitution. It left, therefore, the important provisions of the statutes of 1661, 1696, 1727, and 1748, so far as respected the title to the Church lands, in perfect vigour, with so much of the common law as attached upon these rights.
Let us now advert to the title set up by the plaintiffs in the present bill. Upon inspecting the deed, which is made a part of the bill, and bears date in 1770, the land appears to have been conveyed to the grantees as church- wardens of the parish of Fairfax, and to their successors in that office for- ever. It is also averred in the bill that the plaintiffs, together with two of the defendants, (who are churchwardens,) are the vestry of the Protestant Episcopal Church, commonly called the Episcopal Church of Alexandria, in the parish of Fairfax, and that the purchase was made by the vestry of said parish and church, to whom the present vestry are the legal and regular successors in the said vestry; and that the purchase was made for the use and benefit of the said church in the said parish. No statute of Virginia has been cited which creates churchwardens 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 Roll. Abr. 393, 4, 10. Com. Dig. tit. Esglise, F. 3. 12 H. 7, 27, b. 13 H. 7, 9, b. 27 H. 6, 30. 1 Burns's Eccles. 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 churchwardens and their successors; for their successors, as such, could not take; nor to the churchwardens in their natural capacity, for " heirs" is not in the deed. But the covenant of general warranty in the deed binding the grantors and their heirs forever, and warranting the land to the churchwardens 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.
One difficulty presented on the face of the bill was, that the Protestant Episcopal Church of Alexandria was not directly averred to be the same corporate or unincorporate body as the church and parish of Fairfax, or the legal successors thereto, so as to entitle them to the lands in controversy. But upon an accurate examination of the bill, it appears that the purchase was made by the vestry "of the said parish and church" "for the use and benefit of the said church in the said parish." It must, therefore, be taken
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as true that there was no other Episcopal church in the parish; and that the property belonged to the Church of Alexandria, which, in this respect, represented the whole parish. And there can be no doubt that the Epis- copal members of the parish of Fairfax have still, notwithstanding a sepa- ration from the State of Virginia, the same rights and privileges as they originally possessed in relation to that church while it was the parish. church of Fairfax.
The next consideration is, whether the plaintiffs, who are vestrymen, have, as such, a right to require the lands of the church to be sold in the manner prayed for in the bill. 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 parishioners "for the making and proportion- ing 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 churchwardens. As incident to their office of general guardians of the church, we think they must be deemed entitled to assert the rights and interests of the church. But the minister also, having the freehold, either in law or in equity, during his incumbency, in the lands of the church, is entitled to assert his own rights as persona ecclesia. No alienation, there- fore, of the church lands can be made either by himself, or by the parish- ioners, or their authorized agents, without the mutual consent of both. And therefore we should be of opinion, that, upon principle, no sale ought to be absolutely decreed, unless with the consent of the parson, if the church be full.
If the statute of 1784, ch. 88, be in force for any purpose whatsoever, it seems to us that it would lead to a like conclusion. If the repealing statute of 1786, ch. 12, or the statute of 1788, ch. 47, by which the Church property was authorized to be vested in trustees chosen by the Church, and their successors, be in force for any purpose whatsoever, then the allegation of the bill that the plaintiffs "have, according to the rules and regulations of their said society, been appointed by the congregation vestrymen and trustees of the said church," would directly apply and authorize the plain- tiffs to institute the present bill. Still, however, it appears to us that in case of a plenarty of the Church, no alienation or sale of the Church lands ought to take place without the assent of the minister, unless such assent be expressly dispensed with by some statute.
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
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from claiming the same; and that a sale of the said land ought, for the reasons stated in the bill, to be decreed, upon the assent of the minister of said church (if any there be) being given thereto; and that the present churchwardens and the said James Wren ought to be decreed to convey the same to the purchaser; and the proceeds to be applied in the manner prayed for in the bill.
The decree of the circuit court is to be reformed, so as to conform to this opinion.
No. X.
JOHN RANDOLPH'S RECANTATION.
NORFOLK, April 8, 1857.
MR. JOHN RANDOLPH, of Roanoke, was at one time deeply impressed with religion, and in a pious frame of mind revised his copy of Gibbon's History of the Decline and Fall of the Roman Empire, which he had filled with notes approving the deistical views of the historian. These notes, or most of them, he obliterated, and on the celebrated fifteenth chapter, in which the historian gives an account of the rise of Christianity, on either side of the text of several pages, he wrote the following remarks, which I now copy for you from the book before me :-
" When the pencilled notes to this and the succeeding chapter were written, (and, indeed, all the notes, one excepted in volume tenth, page -,) the writer was an unhappy young man, deluded by the sophisms of infi- delity. Gibbon seemed to rivet what Hume and Hobbes and Bolingbroke and Voltaire, &c. had made fast, and Satan-i. e. the evil principle in our (fallen) nature-had cherished; but-praised be His Holy name !- God sent the sense of sin and the arrow of the angel of Death, 'unless ye repent,' straight to his heart, and with it came the desire of belief; but the hard heart of unbelief withstood a long time, and fear came upon him and waxed . great, and brought first resignation to his will, and after much refractori- ness, (God be praised, but never sufficiently, that he bore with the fro- wardness of the child of sin, whose wages is death,) after a longer course of years, more than the servitude of Jacob for Rachel, God in his good time sent the pardon and the peace which passeth in the love which struck out fear. Allelujah."
The above is a true transcript from the original pencilled remarks of Mr. Randolph. His copy of Gibbon is in twelve volumes, printed in Dublin in 1784. The book belonged to Richard Randolph, the elder brother of John, and has Richard's name in it, with the endorsement "Matoax, 1790." HUGH B. GRIGSBY.
To BISHOP MEADE.
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No. XI.
THE REV. DAVID MOSSOM'S EPITAPH ON HIS TOMBSTONE, AT ST. PETER'S CHURCH, NEW KENT.
M. S.
REVERENDUS David Mossom prope Jacet,
Collegii St. Joannis Cantabrigiæ olim Alumnus,
Hujus Parochiæ Rector Annos Quadraginta.
Omnibus Ecclesia Anglicana Presbyteriis
Inter Americanos Ordine Presbyteratus Primus ;
Literaturâ Paucis Secundus.
Qui tandem Senio et Mærore confectus Ex variis rebus arduis quas in hac vita perpessus est,
· Mortisq : in dies memor, ideo virens et valens, Sibi hunc sepulturæ locum posuit et elegit, Uxoribus Elizabetha et Maria quidem juxta sepultis Ubi requiescat, donec resuscitatus ad vitam Eternam Per Jesum Christum salvatorem nostrum.
Qualis erat, indicant illi quibus bene notus
Superstiles
Non hoc sepulchrale saxum. Londini Natus 25 Martii 1690. Obiit 4° Jan". 1767.
No. XII.
THE ELLIS FAMILY.
[IN my article on Amherst I omitted any special notice of my old friend Mr. Richard Ellis, of Pedlar Mills or Red Hill.
The following communication from our worthy fellow-citizen, Mr. Thomas Ellis, of Richmond, will more than compensate for the omission. ]
April 2, 1857.
The name of ELLIS appears at an early day in connection with the Colony of Virginia. David Ellis came out in the second supply of emi- grants from England, and was one of the men sent by Captain Smith to build a house for King Powhatan at his favourite seat, Werowocomico, on York River. John Ellis was one of the grantees in the second charter of the Virginia Company.
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My immediate family is of Welsh extraction, and my descent traced to JOHN ELLIS, who settled on Peters's Creek, a branch of Tuckahoe Creek, in Henrico county. He was born in the year 1661, and he appears at Varina, the county seat of Henrico, October 1, 1683. His wife was named Susannah, and their children were John, William, Thomas, Henry, James, Joseph, Mary, and Charles.
JOHN, the eldest son, married Elizabeth Ware, a relation of Baldwin and Ware Rockett, seafaring men, who owned the property in the city of Richmond since called "Rocketts'." He was a magistrate and sheriff of Henrico. His eldest son, who was also named John, inherited the family residence, and lived in it during his life. It still belongs to the family of one of his grand-daughters, who married John Bowles, of Louisa county. The land on which it is situated was patented to William Glover, April 28, 1691, and by him sold to John Ellis (the first named) for two thou- sand pounds of tobacco.
WILLIAM, the second son, lived to be eighty-three years of age, and died leaving four sons and four daughters. One of his grandsons, William Burton Ellis, who married Elizabeth West, is still living on Tuckahoe, in the seventy-sixth year of his age.
THOMAS, the third son, was inspector of tobacco at Shockoe Ware- house, and owned the coal-property since known as the "Edgehill Pits." He married Elizabeth Patterson, by whom he had two sons and three daughters, all of whom married and have left families.
HENRY, the fourth son, never married. He died in the year 1768.
JAMES, the fifth son, married, but died without issue.
JOSEPH, the sixth son, married Elizabeth Perkins and raised a very numerous family. He has a grandson, Daniel Ellis, born May 2, 1774, now living near Watkinsville, in Goochland county. The Ellises at this day on Tuckahoe Creek are principally the descendants of Joseph Ellis. His will, dated 11th June, 1785, is proved in court January 7, 1793. His wife died about the year 1798.
MARY, the seventh child and only daughter, married John Smith, who owned the fine farm now belonging to Mr. Robert Edmond, of Richmond, called " Strawberry Hill."
CHARLES, the seventh son, (my great-grandfather,) was born in Hen- rico county in the year 1719, was married, by the Rev. William Stith, to Susannah Harding, daughter of Thomas Harding and Mary Giles, in the year 1739, and had issue two sons and eight daughters. He removed with his family to the county of Amherst, ILcui the county of Albemarle, in the year 1754, and settled the original seat of the Ellises in that county, since called "Red Hill," on the waters of Pedlar River. He died May 4, 1759, and was buried in the family burying-ground at Red Hill. His widow lived to the ninety-fifth year of her age, and was buried by his side. The children of Charles Ellis and Susannah Harding were
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Hannah, Edith, Susannah, Josiah, Mary Ann, Charles, Sarah, Bethena, Elizabeth, and Rosanna.
HANNAH married William Haynes.
EDITH married Devereux Gilliam.
SUSANNAH married Isaac Wright.
JOSIAH married Jane Shelton. MARY ANN married Peter Carter.
CHARLES married-first, Elizabeth Waters, secondly, Sarah Tucker. SARAH married John Harrison.
BETHENA married Thomas Leftwich.
ELIZABETH married William Gilliam.
ROSANNA married Charles Davis.
Josiah, (my grandfather,) above named, inherited the "Red Hill" estate, and lived and died there. His wife-a daughter of Richard Shelton-was born September 1, 1747. They were married on the 3d of April, 1766, and had issue John, Nancy, Charles, Richard Shelton, Josiah, Mary Wright, Thomas Harding, Jane Shelton, Lewis, Joshua Shelton, and Powhatan.
[The following letter, from the Rev. Mr. Caldwell, will be read with interest by all who were acquainted with Mr. Richard Ellis, of Red Hill, and his estimable family.]
RICHMOND, VA.
MY DEAR MR. ELLIS :- I fear that I shall be able to communicate very little in regard to the church on Pedlar. Your uncle Richard was one of the old-school, true Virginia gentlemen,-hospitable, unaffected, polite, courteous,-and as regardful of the rights and feelings of a servant as he was of the most favoured and distinguished that visited his house. I had not been in his house five minutes before I felt it to be what he and his delightful family ever afterward made it to me,-a home. I, however, experienced at their hands only what every clergyman of our Church who has been connected with the parish experienced.
Your uncle's hospitality was not, however, the most captivating trait of his character. The most captivating trait in his character was his simple- hearted piety and devotion to the Church. His devotion was the same when the ways of our Zion mourned, and when none came to her solemn feasts, and when her sanctuaries in his neighbourhood were levelled by the stranger and the spoiler. I think he told me that the first time the services of our Church were held in the Pedlar neighbourhood after the Revolution, the people met in a tobacco-house, and that many aged per- sons who had been accustomed to our services in their youth, when the clergyman repeated the sentences and exhortation, stood up and wept like children, big tears coursing their way down their cheeks in spite of every effort to restrain them. The confession following was made, by every one whose feelings did not stifle utterance, with a voice tremulous with eme-
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