The Defendants not having answered to the bill in the Court below, it has been taken pro confesso, and the cause is therefore to be decided upon the title and equity apparent on the face of the bill.
If the Plaintiffs have shown a sufficient title to the trust property in the present bill, we have no difficulty in holding that they are entitled to the equitable relief prayed for. It will be but the case of the cestuis que trust enforcing against their trustees the rights of ownership under circumstances in which the objects of the trust would be otherwise defeated. And in our judgment it would make no difference whether the Episcopal church were a voluntary society, on clothed with corporate powers; for in equity, as to objects which the laws cannot but recognize as useful and meritorious, the same reason would exist for relief in the one case as in the other. Other considerations arising in this case, material to the title on which relief must be founded, render an enquity into the character and powers of the Episcopal church, indispensable.
At a very early period the religious establishment of England seems to have been adopted in the colony of Virginia; and, of course, the common law upon that subject, so far as it was applicable to the circumstances of that colony. The local division into parishes for ecclesiastical purposes can be very early traced; and the subsequent laws enacted for religious purposes evidently pre-suppose the existence of the Episcopal church with its general rights and authorities growing out of the common law. What those rights and authorities are, need not be minutely stated. It is sufficient that, among other things, the church was capable of receiving endowments of land, and that the minister of the parish was, during his incumbency, seized of the freehold of its inheritable property, as emphatically persona ecclesiae, and capable, as a sole corporation, of transmitting that inheritance to his successors. The church wardens, also, were a corporate body clothed with authority and guardianship over the repairs of the church and its personal property; and the other temporal concerns of the parish were submitted to a vestry composed of persons selected for that purpose. In order more effectually to cherish and support religious institutions, and to define the authorities and rights of the Episcopal officers, the legislature, from time to time, enacted laws on this subject. By the statutes of 1661, ch. 1, 2, 3, 10, and 1667, ch. 3, provision was made for the erection and repairs of churches and chapels of ease; for the laying out of glebes and church lands, and the building of a dwelling house for the minister; for the making of assessments and taxes for these and other parochial purposes; for the appointment of church wardens to keep the church in repair, and to provide books, ornaments, &c.; and, lastly, for the election of a vestry of twelve persons by the parishioners, whose duty it was, by these and subsequent statutes, among other things, to make and proportion levies and assessments, and to purchase glebes and erect dwelling houses for the ministers in each respective parish. See statute 1696, ch. 11 1727, ch. 6-and 1748, ch. 28-2, Tucker's Blackst. Com. Appx. note M.
By the operation of these statutes and the common law, the lands thus purchased became vested, either directly or beneficially, in the Episcopal church. The minister for the time being was seized of the freehold, in law or in equity, jure ecclesioe, and, during a vacancy, the fee remained in abeyance, and the profits of the parsonage were to be taken by the parish for their own use. Co. Lit. 340, b. 341, 342, b. 2, Mass. R. 500.
Such were some of the rights and powers of the Episcopal church at the time of the American revolution; and under the authority thereof the purchase of the lands stated in the bill before the Court, was undoubtedly made. And the property so acquired by the church remained unimpaired, notwithstanding the revolution; for the statute of 1776, ch. 2, completely confirmed and established the rights of the church to all its lands and other property.