In tracing the title of the protestant Episcopal Church to the Glebes, churches, and other property appertaining thereto I do not deem it necessary for its advocates to rely upon the laws which passed upon the subject posterior to the formation of our constitution.

     I consider it clear that the acts of 1661, and 1748, vested absolutely in the vestries of each parish a legal right in the Glebes and churches, as soon as the purchase of land was made but for the use of the minister of such parish and his successors forever. That the minister, and vestry, were thereby, created a corporate body, with a capacity to hold such property in succession, and to manage the same for the purposes, for which it was acquired and this notwithstanding the want of a formal charter, of incorporation, and a particular name, for neither is essential to the constitution of a corporate body. If from the nature, and design of the grant, The property is to go in succession to the Grantees in their politic capacity.

That the legal right was in the vestries, will appear from the following considerations. The deeds for the land when purchased, for those uses, would properly be made to them and their successors, and I presume were so made because the vestries are directed to purchase; They are to erect buildings and to put them in repair. Church Wardens who are the immediate representatives of that body are authorised to institute suits against the incumbent, for wilfull waste committed by him. during a vacancy, the right of possession to the Glebes and churches vested in them and were subject to their controul and management, with all these rights and powers. I am at a loss to conceive, upon what ground it is asserted that the vestries were invested with no species of property in the Glebes and Churches, either personal or fiduciary. Thus stood the rights of the church at the period of the revolution, and I can discern no principle which necessarily grew out of that event tending to destroy those rights, which might not apply with equal force to those of Individuals and of incorporated bodies of a civil nature. The 16th article of the declaration of rights secures to every man the free exercise of religion according to the dictates of conscience, in prescribing to himself, the manner of discharging his religious duties, uninfluenced by force or violence. It cannot be contended that this clause defeats the vested rights of the church directly— It seems equally clear, that it cannot by implication have the effect; freedom in the exercise of religious opinion is no ways connected with the preexisting rights, of a particular religious society to property. Force and violence in prescribing modes of Worship, is reprobated, but neither will grow out of the preservation of the rights we are considering— If it be contended that by depriving the dissenters of their proportion of that property their religious sentiments may be thereby influenced.

     The argument will cut both ways— For by depriving the members of the church of the means of supporting their clergy, they will be interrupted in the free exercise of their religion not by reason and conviction but by force and violence.

     But suppose there is ambiguity in this clause respecting the real meaning of it there is no rule so sound as this; that the contemporaneous opinions, as to the true constructions of a law is in such case a fair and proper standard, by which ours should be formed. The first legislature which conven'd after the formation of our constitution, and composed chiefly of the same members, passd a law upon the very subject; which may be considered as a commentary upon the clause in question. It repeals all laws, which forbid the free exercise of religious opinions, or which injoined particular modes of worship; and discenters from the church are exempted for making contributions to its support.

     These clauses in the law convey the legislative exposition, of the above article; yet this very law prescribed to the Church its existing rights and in the most solemn manner confirm'd them.

     The laws passed subsequent to the revolution are either valid, or they are not, If the former, let them be considered.

     The Act of 1776 confirms the right of the Church forever. If those rights existed at the period of the revolution, and were not defeated by it, then this act could not strengthen the title. If otherwise it amounted to a new grant, which the legislature can no more revoke, than they can grants to individuals.

     The Act of 1779 is only a partial repeal of that of 1776, as to the salaries of the Ministers, to limit their provision, was not to destroy it; and therefore the original object of the trust as to the glebes and churches, was not touched much less annihilated. The Act of 1784 again confirmed the rights of the church; and tho it was not necessary to do so, yet it proves that the legislature, continued to give the same exposition to the Bill of rights. The repeal of this law in 1786, still preserves these rights; and if it had not done so, they would not thereby have been distroyed, because they did not require the repealed law to give them validity.

     Finally the Act 1785, establishing religious freedom when this important subject was well considered and placed upon a Basis, as broad as it could well be, there is nothing suggested in it which looks to the divestment of the existing rights of the church— after those repeated expositions of the bill of rights, it would seem that a man must see his way very clear, before he would venture upon the work of overthrowing rights, so often and so solemnly acknowledg'd and confirmed— If those Laws are not valid then it is unnecessary to appeal to them, and the title of the church will rest upon the laws antecedent to the revolution, which I have endeavoured to shew was untouched by the bill of rights— The 4th article of the bill of rights was (as is apparent from a consideration of the whole clause) clearly intended, to reprobate hereditary rights, to Offices, because being confer'd in consideration of publick services, which were not descendable, so neither ought the office to descend— But if in this article also there is ambiguity, the laws which I have before notic'd, as well as many others, which have granted exclusive privileges and emoluments, to corporate as well as to individual bodies, prove the sense of the legislature as to its true exposition.

     Whether the right of the protest. Episcl Church, to the Glebes, and churches has in any particular instance been forfeited, I shall not enquire because each case must depend upon its own circumstances; But it may be important to consider whether any laws subsequent to 1775—have indirectly destroy'd those rights. It is contended they do, 1st Because the protest. Episl church is not the same as the established church of England & 2dly Because the property of the church is vested in trustees instead of the former vestries— In answer to the first I would observe that a corporate body, cannot be disfranchis'd or lose any of its rights because the name is changed. As to the 2d The law which vests the church property in trustees is either valid, or it is not. If the former then the legislature cannot divest such a right without establishing a precedent, by which they may revoke every grant, the Commonwealth has ever made. If the latter then the argument has nothing to stand upon.

     I shall now consider what right the legislature have to decide this question.

The 3d article of the constitution declares, that the legislative, Executive and judicary departments, shall be separate and distinct, so that neither exercise the power properly belonging to the other; and so nice were the frames of the constitution, that no person is permitted to exercise the power of more than one at the same time, except the County Court Magistrates. Now the only question is whether the judiciary departments may properly exercise, the power of deciding this question— If it can there is an end to the power of the legislature over the subject— I shall exclude from this enquiry the cases of private donations, because every argument applying to purchases made in virtue of acts of assembly will operate with double force in those cases. If the interposition of the legislature proceed upon this, that the discentors having contributed to the acquiring of this property, are entitled to a partition upon their withdrawing from the society of which they were formerly members, then a Court of Chancery may properly decide the question; But in what manner? By decreeing a sale and appropriation of the proceeds to other purposes? By no means. If the discenters are entitled to a part of the property, so are the members of the church, and because the former are willing to devote their part to the erection of a free school, it would be unjust in the highest degree that the latter should be compelled to do so likewise— And unconstitutional to oblige them by force and violence to part with the means of discharging the duties they owe their creator, in the manner, their reason and conviction might direct— If the rights of the protest. Episl Church to the franchises to which they claim, are forfeited by having been neglected or abused—or that have failed in the purposes for which they were granted, an information in the nature of a Quo warranto may be filed by the Attorney General, and the question may be fairly and finally decided.

     If by the constitution or laws of this State their title to the glebes and churches, is rendered defective, or if the corporation is dissolved, or if by any other means the right is forfeited from the cause, of the grant having failed, the Question may be properly decided upon an inquest of Office, which the Esche. may take; for I hold it clear that by whatever means the Commonwealth became entitled to the lands of an individual, or of a corporate body, the remedy for the recovery of it, is by an inquest of Office.

     But if none of their remedies will answer the purposes, or if they may be attended with difficulty, the legislature may properly point out an adequate, & constituonal remedy— But they cannot meddle with or decide upon the right. If there be no remedy (the contrary of which I have endeavour'd to prove) the legislature are bound to provide one. They cannot decide the question, because there is none. They are forbid to—intermeddle where the judiciary may properly exercise the power of deciding. That this is a judiciary question can't be doubted. There are conflicting claims to the subject in dispute, and there are the proper parties to litigate the right of it. Is it not very strange that in every instance where the Commonwealth asserts a right, to the property of a Citizen, as if lands are purchas'd by or descend to an Alien, if a man die without Heirs or otherwise, that there is a regular constituonal mode of trial before she can touch or affect his possession or interest— And yet that in this particular case, a different should exist— If the rights of the church can be decided upon in the legislature what is to prevent that body from dissolving every corporation in the state, and seizing upon their possessions for publick uses. What is to prevent similar decisions, & acts, in cases of individual rights? And how will the most ingenious man be able to get rid of the precedent by distinguishing it from the other cases?

     It is true this is the case of an ecclesiastical corporation; the others are civil, but the distinction is in name only; for since the clause of the constitution, which I have quoted, forbids the legislature to decide any question—of a judicial nature—distinction between cases are inadmissible: and if once sanctioned by that body may become dangerous from the precedent, to the rights and liberties of the Citizens of this State— In England no man can be disseiz'd or deprived of his rights, unless declar'd to be forfeited by the Judgment of his peers, and Judge Blackstone speaking of the necessity of an inquest to vest the property of an individual in the King, uses the following expressions, "for it is a part of the liberties of England, and greatly for the safety of the subject, that the King may not enter upon or seize any man's possessions upon bare surmises without the intervention of a Jury"— It would be a subject of humiliation, if the rights of our citizens were less carefully guarded. I console myself with beleiving they are not— The 11th Sec: of our Bill of rights declare that in all controversies respecting property and in suits between Man and man the antient trial by jury is preferable to any other and ought to be held sacred— If this be a controversy respecting property, and if the judiciary may properly exercise the power of deciding upon it—There is an end to the power of any other earthly Tribunal.¹