#### THE TOWN OF PAWLET v. DANIEL CLARK, and others.

*Msént....ToDD, J. .*

This Court tio?^vhete" one’ party derTMS,''rantn" from0tif?statc of New t (ampoiher unde?» grantfrom the at the time oí the first grant, part^New3 Hawpshire. lamfin equal shares*; he P<hvMwf mongst them into 68 equal shares, with a specific approprianon of 5 ty-eiV.iuh, part If m?or^the shares be Wared to be, ” at!felebe “ church of “ by" law es-England as *‘*tabiished,” that share ¡s trust by6?? grantees, noris annexe?1**)011 their rights The church Engiandtó *293a ■ fmdy coiTM, TMw, and caff. üonatítm'eo' ? nomine, 4urS"ofauch' a phtce is g«$> fwinthe.par-1 suehTgrantte modcbythu «iby the NTM" at ite. ]ui>dat commonkw mar pb^asos1^lon-vbu-cisa gyarteo in existence compe* tent (o take 'bjTM1 !n *¡l^v'mbe*the in abeyance, cannot be're-at the of

*292THIS was a case certified from the Circuit Court for the district of Vermont, in which, upon an.action of ejectment brought by the town of Pawlet to recover possession of the *glebe lot,*as it was'called, in that town, the opinions of the judges of that Court were opposed ltp0n the question vvjiether judgment, should-be rendered for the Plaintiff or for the 'Defendants, upon a verdiet found, subject to the opinion of the Court, upon the case stated;

*eejn*this cause it is agreed on the part of the Plain*ie*tiffs, that the lands, demanded in the Plaintiffs’ decla- « ration, are a part of the right'of .land granted, in the “ charter.of the, town of *Pawlet,*by the former governor ‘of the province of New Hampshire, as *a glebe for 'the ^mrc-h of England as by law*established,* and that in “ the year 1802 there was, in the fown of Pawlet, a so-*is*cicty of Episcopalians duly organized agreeably to - ^ 1 - 1 . . .. «the rules and regulations of that denomination of. « Christians heretofore commonly known and Called by name of the church of England. That in the « same year (he said,society contracted with the rever,end *“*^et^lie^ Chittenden, a regular ordained minister of tlie Episcopal church, who then resided in She,¡burn, *ss*{n the county 'of Chittenden, (hut had not any settled « ment as á clerk or pastor therein) to preach to the « said society in the town of Pawlet at certain stated ****^mes» and to receive the avails of the lands in ques-44 tion, and that the said Chittenden thereupon gave a *cs*lease of the said land to Daniel Clark and others, 44 who went into possession of the premises', and. still « holds the same under the said lease, and that the said “ Chittenden regularly preached and administered the ordinances to the people of the said society, according h's contract, and received the rents and profits.of the said land until the year of onr Lord Christ *293«1809, when the said Chittenden deceased $ and that in *“1809 .he*said society contracted with the rcvd. Abra«ham Brownson, a regular oidained minister ot the « Episcopal church, residing in Manchester, and otli«dating there a part of the time, to preach to the « society, a certa,n share of the time, and to receive the «vents and profits of the said laud; ami Mlu.t the «Brownson has1 reg- lariy attended to his duty in the «said church, and'ad.ninistired-ordinances in the same « until September, 1811, about which time the sad} so- “ clety regularly setihd the rcvd. Stephen Jewett, who « now resides in the said town of Pawlet, and who from « the time of his settlement is to receive all the tempo«ralities of the sakl church. And it is further agreed «by the said parties, that the general assembly ot the « state of "Vermont on the 5th of JNovuiilnr, 1805, «grant-to the several towns in this state, in width the; « respectively lie (ro-leri tit c being had to the act ot tin- « general assembly aforesaid) ali the lands granted by « the king of Great Britai/j to the Episcopalian church « by'law established (refirma- being had to (lie charter « of the town of Pawlet aforesaid fur the said grant of «‘the king of Great Biitain) and that the lands, in ti e «Plaintiffs? declaration mentioned and described, are «part of the, lands so granted, by the king of Great « Britain, to the Eidscoualian church.” ' 11

common • hi«,-ofiipas uJcreMioifoE chm-cbes of ) right to prei-s, ami the pimons there» t0 '-ake *294KaccossSon, was recognized and adopted in'New Hampshire. *‘It*belonged exclusively to ibe crow'n to ©reel the chorehjin each tow', lliai sh- ujd be entitled. to take *the*glebe, and .«pon such erection to collate through the *governor,*a parson to the benefice. *A*voluntary society of J£pis: tiOpalians wiihin.a town, unauthorized by the croivi), omthi not entitle Üiern-’ , sseives’lb the jgiebéJ TVhere no such church was duly eree-’ téd by the crown, the glebe remained as an hseceditas jácens, • &nd the state which subfleeded to the "rights of "the crowp, might, with the assent * of the town, alien orincumberit; or might erect a*> Episcopalian church therein, and ¿oilate, either directly or through the voíb ef the *295town indirectly, its. parson, who ..would thereby become seized of the glebe jure ecelésisc, ‘and' be a corporation capable of transmitting the inheritance.-

*293The charter of Pawlet is dated-the 26th of August, 1761, and purports *to be*a grant f,ui» the king, issued by-B: nuing "Wentworth, governor of Kew Hampshire, and lias these words: « Know yb, that wo, of our spe- « rial grace,” ¿fee. « have, up-- n tlie conditions and « servathms herein after made, given and granted, and « by these presents for us, our heirs and successors, d « give and grant, in equal shares, unto our loving sub- « ¡neis, inhabitants of our said province of New ¿lampc4 shire-, and onr other governments, and to their heirs *“*and assigns forever, whose names are entered on «grant, to be divided amongst them into •« equal shares, all that tract or parcel of land sRuate, «lying, and being within our said province of «Hampshire, containing by admeasurement 23,0-i0 '«acres, which tract is to contain six miles square and -«no more.” *kc\*« and that the same be and hereby is « incorporated into a township by the name of Fau'ief,'’of

*294&c. “ To have and to hóld the tract of land as above ex- “ pressed, together with all,”' &c. “ to .them and -their “ respective heirs and assigns forever,” &c,

• On the back of which grant were indorsed, • « The *“*nanics of the grantees' of Tawi.et, viz: Jonathan Wil- “ lard,” and others, being in all 62, then follow these words, *“*His excellency Bi-nning Wentworth, esquire, “ á tract of iand to contain live hundred acres as mark- “ ed in .the pian B. W. which is to be accounted two of “ the within sham; — one whole share for the incoi po- “ rated society for the propogation of the gospel in foreign parts; one shareforyt gb be ior the church of u England as by law established; one sitar* for the*first “ settl'd minister of the gospel; one share, for the bene* “ fit of a school .in said town.”

The act of the *5th of November,*1805,is entitled, “An. “ act directing the appropriation, of the lands 'in this *“ slate,*heretofore granted by the government of Great “Britain-to the church of England as by law ésta- “ bl.ishcd:”

« Whereas the several glebe rights granted by the *“*British government to the church of England as by *“*their law established, are in the nature of public , re- “ serrations, and as .such became vested by the revolu- “ tion in the sovereignty of this state; therefore,

*‘‘Sect.*l. Beit enacted by the general assembly of the “ state of Vermont, that the several rights of land in this “ state granted under the authority of the British go- “ vermiient to the church of England as by law estafe Wished, be and the same are hereby granted severally “ to the respective towns in which such lands lie, aiiil “to their respective use and uses forever, m manner “ following; to wit:

“ It shall be the duty of the selectmen in the rospec- “ live towns in the name and behalf, and at the'expense, “ of sue!», towns, if necessary, to sue for and recover the “ possession .of such lands, and the same to lease out “ according to their best judgment and discretion, re- “ serving an annual rent therefor, which shall be paid “ into the treasury of such town, and appropriated Jq *295«‘the use of schools therein, and shall be applied in the « same manner, as monies arising á’pm school lands are, « by law, directed tó. he applied.”

By tlm i’evoltt- ' lion, the state of Vermont succeeded to all the rights of the crown to the unap~ propriatect, as well as appft* • printed glebes. By the statute of Vermoub’ot' 30th Oct. 1794, the respective' towns became entitled to the property of the glebes thcreirif situated. '*

A legislative grant cannot be* repealed. Episcopal •church in ’Vermont can he. entitled io the glebe, • *)ruU*nj> it was duly erected by the crown before the revolution, or by the since.

This cause was-argued at'last term by Pitkin, and Webster, *for the Plaintiffs',*and by Shepherd, *for the*

Pitkin, *for the Plaintiffs.*

On the part of the' Plaintiffs it is contended, that the share in question, or the sixty-eighth part of the town of Pawlct, which in the charter viñas granted oír reserved «’for a glebe, for the church of England, as by law established,” did not at the time of the grant pass from the king, for want of proper persons to take,* that'it remained in the grantor until the revolution, when ,it passed Over and vested in the state of Vermont,, who had, therefore, full right to dispose of it. By the words of the charter, the tract of land therein described is to be divided among those whose names arc entered on the charter *mío 68 equal shares.*The names of 63 persons are mentioned, including Banning Wentworth, who has two shares, making for thofee 63 persons 64 shares, leaving four shares^ one of which is for the incorporated society for the propagation of the gospel in foreign parts ,* one *for a glebe for the church of England as bylaw establishedf*one for the first settled ¡minister of the *gospel;*and. one for schools *. making in the whole 68 shares.

It is clear, from the terms of the grant, that rid person named on the back of the’ charter, or intended as grantee, except B. Wentworth, can take but one-share, as the town is to be divided into 68 shares, *and those Shares*are' *to be equal.*B. Wentworth is to have *500*ácres, which are particularly designated and marked in the plan annexed to the charter, and are to be account; ed two share’s. 1 This exception also proves that the other, grantees are to have oqe share only. In'no event, therefore, could the share in question, or the two other public shares, as "they have been called, .be divided among the individual persons named. Nor las this ever been the case, in the division of the town of Paivlet the share intended for a glebe, was located by itself, and called *the glebe lot.*It ivas intended, in the granf, as a name; and if it could not pass as *designated,*for *296want, of proper grantees, it remained in the king, the grantor, (as if one. half of the names inserted had. been fictitious) and at the revolution vested in the state of' Vermont.

The nature of the estate intended to be conveyed, is in the word “ *glebe”*well known in the English lawj as a provision for the parson of a parish. The law says that the freehold only vests in the regular parson ; not'the fee: consequently the grant or disposition of land, in such case, for a glebe, does not make or imply a disposition of the fee; the fee, therefore, remains in the grantor.

The .words *“*for *a glebe for the church of England as hj law*established,” express clearly the intention of the grant, viz: for the support ap<l extension of the national church, considered in its political connexion. ■ It is not a grant to the national church as a body. No such grant ever was made, or if made, would be valid. Every provision, for its support is to some *organ*of the church, as to the bishop of such á see, or the parson of such a-parish, and his successors. A parish church, in the English law, is the building consecrated and endowed. There must be a glebe, which may be the church yard only. The parson has, in the glebe, no more than a freehold estate. He is considered in law as a sole corporation, and the freehold passes by' succession. Parishes are a civil and ecclesiastical division ; the inhabitants of a parish, the parishioners, the members of the -national church, are never said to be members of the parish church; neither the parishioners nor the vestry have any *right*in,v or *power*over the glebe, not even during a vacancy, *(See*1 *Black, page 417.)*The church of England never was established bylaw, either in New Hampshire or Vermont, before or *since.the*revolution. Neither the civil nor ecclesiastical law, as applicable, to globes, was known or recognized at the date of the Charter; nor has it been adopted or recognized since in either of those states. L’he intention of the grant, ther fore, even 'before the revolution, Could never have been carried into effect. It is also well known that, at the date, of the charter, the land therein granted was a wilderness, and so continued for a long time afterwards.

*297At the time of the grant, therefore, there'was not only lio church of England established by law, but in the town of Rawlet there was no organ of that or any other church, capable of taking the share in question.

.The grant, of course, could not take *effect;*ahd the revolution has rendered it utterly impossible that it ever can take effect agreeably to tie intention'of the donor. By the revolution we have become completely severed from the church of England as by law established- In-; dividuals 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 súme discipline, as far as may be effected without the assistance. of the civil arm. But this constitutes, in the view we are. now taking of the subject, *similarity.*not *identity.*It furnishes no ground for legal derivation of civil or legal connexion. In every political, civil and legal View, and in ail t’>e civil and legal consequences, the dissolution of the church of England, as by law established, was in the United S'ates as total and complete on the revolution, as that of the civil power of the British government. Nor has there ever been in I he state, of Vermont, a substitute adopted. Every idea of a national or state religion has been exploded.' The Court will consider bow many things are requisite to the legal possession and enjoyment *of a glebe*j how much of the, common law of England, and how much of, the cannon law must'bo adopted or considered'as in force; although, in every civil and political view, the institution or establishment to which they applied is abolished. There must be, á 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 bu a sole corporation. No part of the' common law on this subject has been adopted in the state of Vermont; either by the constitution, by statute, or by legal adjudications.

It would be absurd to consider any number of Episcopalians, formed into a society in Vermont, as standi ngia the place of a parish, and capable, contrary to the doctrine of the,common law under which tiny must derive, of succeeding to the freehold of a glebe, or of taking and. *298holding by succession or otherwise, by or , under a grant of lands for a glebe, made by the king of. Great Britain before the revolution. There is a statute in Vermont, *('see an act for the support of the gospel, passed in*1797, *Revised Laws, Vol.*2, *page #74J*under which religious societies may be formed j but it does not appear, in the 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. Tliis si atufe, 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 intc«rests, as they may *hereafter*acquire, by purchase or « otherwise, and the same to s-ll and transfer, for the *ft*benefit of such association.” A society so formed, lias 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 ihe power of acquisition. Nothing is to be holden which shall be perpetually, appropriated, as a-glebe is. Such society is not empovvered 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 he considered as a re» *serration*for a f’ture particular use, it then remained'in the king, the donor, until a state of things should arise, whi n it could be applied to such use. This use is specified in the chart -r, viz: for a glebe, &c. We have before proved that, prior to the revolution, it had not been, and could not. consistently with the institutions of the country bn-s i apple d. It, of course, remained in the king at the revohr.ion, and at that time vested in the state of Vermont.

At the-date of tins charter a separation of the provinces or colonies from the mother country was not contemplated. It was undoubtedly intonded at that time, by the donor, that the church of England should he established by law in the province of New Hampshire, as *299it bad been in some of the other provinces, and particularly in-Virginia. ' In this charter, therefore-, as well as in all other charters, granted by the governor of New Hampshire, provision was made, by a reservation of a certain share of every township,'for such fin establishment.

If the share in question be considered, in the nature of.a grant, then, as we have before stated, the grant of “ a glebe,” if it took effect at all, is of the freeholdvonly, and not of the *fee;*of the freehold to be taken and held by the incumbents in succession.

The fee, of course, not being granted, remained in the grantor. By the English law, as well as our own, on the dissolution or political death of a corporation, all estates granted to such corporation revert to the grautor or donor.' And if a grant was made by the king to any person, or number of persons, incapable of taking or holding, or if the object ceased to exist, *or never came into existence,*the estate was considered as never having passed, or as reverting to the king, according to the; nature of the case.

On the revolution the state of Vermont, as a sovereign slate., succeeded, in full and sovereign right, to all the property and rights of property within the same, which, at the time, were vested in or appertained to the king .of Great Britain, whether in possession or reversion. The case, then, stands thus: a tract of land in the town of Pawlet was, by the king of Great Britain, before the revolution granted “for a glebe for the “ church of England, aá by law established ;” that is, *the freehold to vest to a particular use,*when *that use should*arise, the remainder or reversion in the crown. There is no securing, in the constitution of Vermont, to any man or body of men, of any rights or benefits, which under the crown were intended for the church of England as by law established. At the time of the revolution there had never bc<fn, within the territory, now state, of Vermont, *a regular parson,*who couklmakeany possible legal claim or pretence to the use of any of the glebe lands within the same. The sole corporation, as the parson was denominated, was.not dissolved or extinguished by a political death, because in Vermont it *300never came into existence, but the possibility of such existence ceased. A provision might. have been made &y the constitution, or by statute, in favor of Episcopabans; but it must have operated as a new grant, or new org nizalion. No such provision has been made; the right, therefore, vested in the state'of Vermont, and the grant is well made to the town of Pawlet.

Shepherd, contra,

It is contended by the counsel for the Plaintiff that nothing passed by the gram contained in the charter of Pawlet; so as to divest the king of Great Britain of the title to the premises in question. If this position is correct, it must bo admitted that the Plaintiff is entitled to recover; because it cannot be denied that the title of the crown to any lands antecedent to the revolution, within the jurisdiction of the now state of Vermont* would of course, become the property of the state. If, however, the ground taken by the P’aintiff’s counsel* shall be found untenable, and that tlv title of the king was divested by the grant; then, whether the Defendants have a title or not, will he. a matter of indifference ; so long as the Plaintiffs must recover on the strength of their own title, and not on the weakness of ours.

If, by the grant, the title passed from the then king, the state of Vermont could acquire no .right by the revolution ; but the title must remain, unless forfeited, as at the time' of the grant.

The reason given by the counsel for the ■‘Plaintiff t«. show that, notwithstanding the -charter,' the title remained in the grantor is,, that when made, there was no grantee in *esse*capable of taking the ffe, or other estate, so as to divest the king of his. If this be true, on a fair construction of the letters patent, it. must also he admitted that the Plaintiff is entitled to judgment.

It is believed that, on examination of the charter, the Court will be of opinion that there was a sufficient grantee in esse; and .that .the title did pass by.that instrument And if there was then, no matter what h'4S *301happened since, unless there has been a forfeiture, and office found, which are not pretended.

1. The words of . the granting clause *are,“ Ho give “ and grant m equal shares, unto our loving subjects,*in*“habitants of New Hampshire, and our.other governments, “ and to their heirs and assigns forever, wliqse names are “ enteved on this grant, to be divided to and'aniongñ them, “ into sixty-eight equal shares, all that tract, or parcel of “ land,*4'c.” describing and bounding the whole township of Pawlet.

It is contended here that the whole of the land, contained within the boundary lines of the township, was designed to be granted without any saving or reservation to the crown, of any part of the same. The whole of the six miles square was granted; to whom ? To the loving subjects- of his *majesty*in New Hampshire and elsewhere. How was it granted ? In fee simple j and in sixty-eight equal shares, to be equally divided to, and amongst tlie king’s loving subjects named on the grant.

He granted to them (be they more or less in number) the whole township of Pawlet. as tenants in .common, and not in severalty. Hence, each man named on the grant became entitled to his proportionable part of the whole township, whether he was one of sixty-eight, or one of three.

It is presumed the Court in this case will be much inclined to do, as Courts have generally done, if possible By théir construction to satisfy the object of the grant, and give it a meaning which was intended by the grantor. It is jv rule of construction to search out the intention, and make'lthat a land mark.

Possessing liberal views of this instrument,, it will no doubt be found that the grantor designed to pass'the title to the whole town of Pawlet j to his loving subjects named thereon, and not to confine the grant to a sixty-eighth part of the township to each, hut id proportion to-the whole number, more or less.

Now, supposing that a part of the names written on *302the grant should have been fictitious, the grant of aproportion would not have been to them, but directly to the others, who answer the description given, « Loving subjects of the grantor.”

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. As well might the counsel contend that it was inferrable from a law incorporating a bank with three thousand shares that the stockholders could havfe but one share each.

If the foregoing is a correct construction of the instrument before the Court, then it results as a certain inference that the crown had not a rood of land remaining in Pawlet ,• and, consequently, the state of Vermont could have *none;*as the state pretends to po greater right or title than that of the king.

3. It will be attempted to be shown that on the 26th day of August, 1761, there was in me a church of England, as by law established, which could be a grantee of the crown., If so, the title passed directly to the .ehurch in fee simple j and would need no auxiliary to sustain her right.

It is said by the counsel that lands granted for the benefit-of the church, are granted to the bishop, or some other ecclesiastical person,• but it would be strange doctrine to say that the king had not power to grant .directly to the church established bv lawj and therefore distinctly identified as a Christian society. The position will here tie ventured, that such a grant to the church of England as by law established was, and still is valid.

*303To maintain the point that the church existed at the date of the grant, we need only appeal to historical'facts in the English books, and the still more authentic téstimony of the body, of the English law, the statutes and adjudged cases of the realm, within the recollection, and familiar to the mind of the Court.

It is said “ that when the grant was made tliére was no church in Pawlet; it was all new. There was no established church in New Hampshire or New York.” Whether true or not, as it respects this part of the argument, is not worth enquiry ; for it will be remembered that the w,ords of the grant do not confine the? bounty of thé sovefeign to Pawiet, New Hampshire, or the American continent: it is co-extensive with his dominions, and may be claimed by, the church wherever found within theca.

' That there was a church established by law in Great Britain no-one will deny: if so, what should prevent that church from being the grantee ? It can hardly be denied that the king could grant lands lying in one of his American colonies to bis subjects beyond the Atlantic, as effectually as those who resided in that colony. It was all within his territorial *jurisdiction;*and place of residence could have no influence. It may be said that the grant, is to the king’s subjects in. New Hamp- , shire. True ; but the words *«and our other government's,”*are added. These words may embrace the whole governments and dominions of his majesty.

If, however, this ground should fail us. there can he no difficulty, it is presumed, to ascertain the existence of a church ip ihe colonies capable of faking a title to the property in question.

- in .Virginia, if information is correct, the Episcopalian church was established by aolaw of that colony before the date of the grant; but whether so hr not, we feel indifferent because by a future construction of thé grant, we have the utmost confidence that the true meaning is not a church established by any law in the American colonies, but that the .words « *as by law established,” we*used as,descriptive of the denomination of Christians, intended as the subjects of royal munificence. *304As much as to say that sect of Protestants who are known in England as the established Episcopalian church. That you, churchmen of America, must'embrace the same creed ; the same church government must be the rule of your discipline; and your ordinances'must be administered in every respect as by the church in England. You must be neither Catholics nor Desenters, but be identified in every part of your religious establishment in faith and practice with the mother church.

That this is a natural construction is manifest from-the fact that the government could not have been ignorant of the state of the church in the colonies, and it would be the height of absurdity to suppose a grant to be made to a body of Christians, which the grantor well knew did not exist. The Court surely will never im-. pute to .tlie officers of any government, such triffling and .mockery.- If, therefore,-the colonial Episcopal church was intended as the subject of this bounty, and if she 'was not established by law, it must follow, as an irresistable inference that the words *“ as by law establish*ed,” are words of description and not of identity.

Having established this point, we will show by historical proof a church in. the state of New Hampshire», long antecedent to the date of the grant.

In *Belknap's*hist. *of*JVbw Hampshire, 2 *vol.*118, it is ■stated that in the year 1732, a building for- an-Episcopal church was erected at Portsmouth, in New Hampshire. In 1734 the church was consecrated; and in 1736 they obtained a clergyman of that order by the name of Arthur Browne.

If - this Church was capable of taking a title to land, as. I shall hereafter show, all the difficulty suggested on the part of the Plaintiff will be removed.

. Some reasons will now be given to show that such a .church as was-established in New' Hampshire was capable of taking a title to real property.

1. The king, by the act of granting, creates sufficient corporate powers, to carry into effect his designs. That *305lie can create, corporations cannot be doubted. He did, by the very instruiré nt before the Court, create in the town of JPawlet all the corporate powers and p'rerogativ¡'S which they now possess;’ a body sufficiently known in law to be invested with the supposed legal estate in the premises in question; and by an act of the very legislature who have authorized them to bring this action. Ifthe king bad the. authority to incorporate, it Can.be easily and legally infem d from the grant that this body was sufficiently incorporated thereby.

Should congress, by law, give to the Presbyterian church of the city of Washington a portion of the public lands, would the Court endure to be told that there was no proof of the incorporation of the church, *ergo*th® law was void — <he title never passed either by the law or grant made in pursuance thereof?

In a case thus situated, the Court may, indeed they ought to infer, for it is a jus legal deduction, and bottomed upon the soundest judgment of law, that a sovereign, granting power, (always supposed, *prima facie*at least, to be right) had not indulged in the foolish blunders, of granting real ‘ property foremost desirable endsj to shadows and *non entities.*And it is confidently believed that the Court will determine as a reasonable ■and legal intendment, that, the church of *New Hampshirfi*was made capable of holding this property.

There is a further reason to suppose,the church capable of taking a title.. The grant being a governmental act, and of such high and incontrovertible authority, every statement and fact contained in it is so far proved that it cannot be denied. If this be correct, the grant itself proves the whole that need be proved to make this part of the grant valid, and to vest the title in the church. The Court, therefore, will not receive any statements, history, conjectures, or Vermont preambles, to contradict the acts of the British government n\ade in solemn and official form. It is true that a prior grant from the same authority may be shown to defeat a subsequent. But that is permitted for very different yeason.1?,* because the first act of a government, granting away its lands, vo.sts a title in the grantee, and there- iU nothing left to give.

*306. In support of this position it is submitted, whether the words *one share as a glebe for the church of England, ójv.”*are not tantamount to a positive averment of an existing Church in this country which could be the legal subject of * donation by letters patent. There is this strong reason to support such an opinion, tiiat we never can impute ignorance or error to a sovereign while exercising the high prerogatives of his station. \Ve never can say that he, as the organ of the government, has been granting land without a grantee; that he- has mistaken the facts or the law, ami consequently nullify his acts. It is enough that the instrument points to the ^grantee and gives the object 5 its legal attributes are to ho presumed.

The Plaintiff comes, claiming under the very title granted to *us;*in which grant we are acknowledged to - have a prior right. Had this grant been from other than the government on whom the doctrine of estoppel cannot fasten, it would be enough for us to hold up the charter between the claim and our possession and shut the Plaintiff at once from even a view of.the Court. Even now, whether the doctrine of estoppel will apply, or not, one thing is true — that what the king, under whom Mié Plaintiff claims, has solemnly recognized as correct must be binding upon the government of Vermont, and, consequently, upon the Plaintiff in this cause.

The act of the British government is not the .only governmental act which the church has to secure theitposscssion.

The legislature of Vermont on the 26th day of October, 1767, passed an act *“to authorize the selectmen in the several towns of the state to improve the glebe*lands, *■fed’*And, after enacting that the selectmen should ■have power to lease out *the.glebe lands,*receive the rents, bring actions of ejectment, recover the* possession thereof, when possessed by persons without right, they male® a proviso in the words following: *“Provided/ neverthe- “ less, that nothing contained in this ad shall extend*.9® *“far as to present any Episcopal minister, during the time “ of their ministry,*that now are-or hereafter may he in *“*possession of *any glebe lot or right, or actually officia**307*«ting in said town where the land lies, and who is an or-*“ *dained minister of the Episcopalian*church, from aving “ the management of said lots, and the avails arising “ therefrom.”

By this proviso it is perfectly obvious that the legislature intended to manifest a legal recognition ol‘ the right of the church to the property.

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 tin' land from the church, and in the pleni* túde of their power to forget right, but to secure the title and p< omote the interests of the church, if not, why in the proviso are the- Episcopal clergy preferred to other clergy iii the management of the *lands;*and why are they preferred even to the selectmen as the guardians of the property. The proviso is high and indisputable proof that the object of the statute was solely to preserve the property from waste for the benefit of the church, to preserve for it th'e income which might result from its prudent management, and to save the title from loss fay long adverse possession.

After all this, one would suppose that the state Would never indulge itself in attempting to divest the church of their *property; yet,*strange as it may appear, on the 30th of October, 179i, the, legislature of Vermont make .another act concerning the glebe lots, and the following is its’preamble:

“Whereas, by the first principles of our government it is cont- mplated that all religious s- cts and denomi- “ nations of Christians, whose, religious tenéts are con- “ sistent with allegiance to the constitution and .govern“ment of this slate, should, receive equal protection and “ patronage from the civil power: And whereas,- it is «contemplated in the grants heretofore .made by the “ British government, commonly called *glehe rights,*that “ the uses of the said rights should be to the sole and “ exclusive piuposé of building up the national religion “of a government diverse from, and-inconsistent with “ the rights of our own; for which reason» and on the *308« principles of the revolution, the property of said lands “ is vested in this state.95- • They, therefore, go on to i nact that the rents and profits of all the *glebe lots*shall be appropriated to the support of reiigions worship in their respective towns forever; without»regard to the sect of Christians, and all should share .alike, according to the number of taxable inhabitants, in the parishes respectively.

In this preamble they seem to admit that the title to the glebe lots was vested in the church. They do not deny shell a construction of the grant, nor do they urge, *m*a reason for taking away the property from the Episcopalians, that the grant was void, or that the title was in the crown before the. revolution; and that thereby they became intitlcd to the property; but tliéy say these’ lots' were granted « exclusively to build up a national religion of a government diverse from and inconsistent with the rights of their government *iif*and for these reasons they attempt to divest the' church of their title in order to give the property, or the income of it, to Other sects of Christians.

Thp reason given for enacting thisjlaw is strong evidence of the opinion of the legislature, that the title had passed Opt of the crown and vested in the church. But as they disliked an established religion, supposed it anti-republican, and what was more to be dreaded, it was established in a government “ diverse from the government of Vermont,55 and inconsistent with their rights, or rather their religious and political opinions;— being disagreeable in these particulars they take away the income of the land from the Episcopalians to appropriate it to other and, no doubt as they supposed, better purposes.

Notwithstanding thp length and force of this preamble, and the cogent reasons given for making, the law, on the fifth day of November, .1799, the legislature repeal this act; and in so doing most manifestly abandon all pretentions to the church'property; for in the repealing law they take care-to secure those,, who have trespassed upon those lands, from actions which might be brought for so trespassingadmitting in the fullest sense that men who had intermeddled with the property *309by tbc authority and in pursuance of their law had ao trespassed. Hence the Court will see that the legislature, both in the making and in the repealing of the law of 1794, show that the act was an unjust attempt at usurpatiOIl.

By the record of the case of *Pettibone v. Barber,*before the late justice Patterson at a Vermont circuit, it appears that the Plaintiff failed in an action brought in pursuance of this law. It is said that the judge pronounced the law unconstitutional and void. This decision might have induced the repeal, as the trial was had in the intermediate time between the passage and repeal of the act.

The legislature in the year 1805 passed another act; and by that discover less solicitude for the Christian church in any form. This, too, has a preamble, contradicting in its terms the old, in which they ,say, **f*Whereas, the several glebe rights, granted by the «British government to the church of England as by «law estatiished,” are in «the nature of public reser- « vations,” they, therefore, give them to the selectmen of the towns where they lie respectively, for the use of schools, &c.

The first act contains by implication a decided confirmation of the title in the church. The second, although contradictory in its provisions and repugnant to that right, exhibits in a strikinglightin its preamble and in the repealing clause, a thorough conviction, in the mind, of the legislature, of the fallacy of their pretentions; urging facts which, if true, would contribute nothing in support of those pretensions. In the last they urge a new reason for their law, and, as we suppose, equally unsound. Here they become wiser, and not only act the legislators but judges, scout what had been done by their predecessors, and give a construction of the grant which is indeed a strange one, but which, if correct, is supposed, as will be hereafter shewn, to defeat the right to recover in this casé.

3. In the third place it is supposed the grant of the crown may be considered valid by adopting the opinion that this is one of the'eases where the fee may bein abey*310*anee,*until the existence of the church in the town of Pawlet, so organized as to be callable of receiving; it.

.To maintain this point the Court are referred to *2 Bloc. Com.*106, *Co, Lit.*342, where it'is laid down, tiiat an estate may be granted to John for life, and then to the heirs of Richard, although Richard has no heirs at the time of the' grant.

Here, although the life estate vests in John immediately, yet the fee must be in *abeyance,*until the heirs of Richard are *in esse.*Indeed the happening of the. pveut is. perfectly contingent, for those in remainder in ay never exist. Should it be said that the fee remains in the grantor during the life estate, ready to vest in the heirs of Richard if they exist at the determination of the life estate, or to continue, in him by *reverter*if Richard lias no heirs; it is met by urging that if this doctrine be correct; then with equal propriety may it be contended on our part, that the fee remained in the king ready to vest, whenever there should be a church.

But says the state of Vermont, « we have a' right by forfeiture to the king’s property.” True, but no greater right titan the king had; which was a naked legal title; the use belonged elsewhere. Of this hereafter.

In the 2 *Black.*Com.,318, it is said that ecclesiastical estates must sometimes necessarily he in *abeyance,*and that where there is no person in whom the fee can vest, it .potentially exists in *abeyance ;*as between the death of the incumbent and the next presentation.

The parson having but á life estate in the glebe, unless it could so exist on liis death, it must revert to the grantor.

*Christian, in his notes on Blackstone,*supposes the fee to be all the while in the lord of the manor.

This is by. no means the opinion of Blackstone, or of tiie still greater lawyer, Coke; both of whom, if they are correctly understood, lay down the law to be,.that the fee exists, between the death of the-parson, and his successor, not in the lord, but in abeyance.

*3114. If the construction of the patent contended for in the inception of this argument is correct, there will be no-difficulty in finding *a grhntée.'to*uphold the fee, and make'it subservient to the benevolent intentions of the crown, it would notbeaviolent or unnatural construetion to say that the town of Pawiet was granted to the persons named on the grant, in fee, bp,on condition that they should, in the location of the town, lay out and set apart « *one share as a glebe for the church of England, $c.”*together with the other shares for Benning Went-worth, the first settled minister, and the school, according to the directions indorsed.

Under such a construction, whether the church were incorporated or not, they might reap the benefit of tj¿e use; .for as soon as they become organized,- arid a clergyman settled, they would be capable of receiving the income of the land.

This construction was adopted by tire proprietors of the town. In locating the same they did survey a share arid mark it off as a *glebe*right. This appears from the several acts of the state and in the argument of the counsel for the Plaintiff.

The preSentinhabitants of the town must all hold.their lands under the grant before us, and not only so but from the original proprietors who so located and consecrated the-giebc right which is-now claimed by those persons.

By the laws, of England, and probably of all civilized countries, the claiinor or possessor of land is bound by the acts and confessions of thoso-under whom he holds the claim or possession. By this rule then the' preserit inhabitants of Pawiet are bound by the act of jfeheir predecessors. That act was a complete recognition of the right of the church to the property ; an act which spoke louder than any language.

It may be said that the share was located by the proprietors of the town in their corporate capacity. If that was the .case it is still the worse for them, because á corporation never dies, and the location was-the act of the Plaintiff upon the record in this cause; and they are now *312claiming property which they once voluntarily admitted; to belong to the church.

Again, it appears, that the Plaintiff .in this cause is now enjoyingthe benefits <>f this construction in the share given to a school and the first minister settled in the town. Without this, or the third position taken in this argument, the town would have but slender pretences to the use of those two shares ; but it seems they claim those two lots by the same, or a more uncertain title, hold them by the same tenure, derive the right from the same source, and yet claim the *glebe*also, and in order to support that claim are driven to the* necessity of denying the legal and efficient properties of the instrument by which they, as well as the church claim.

S. This is a trust estate. The patentees named upon the giant are the trustees for the use of the church whenever it should be organized in the town of Pawlet, so as to be enabled to receive the rents of the land.

If a use can result from a gránt. by implication, it is supposed this isa case of that kind.

In expectation that objections will be made to-such aft interpretation of the case those objections are endeavoured to be answered.

1. It may be said that the grant is silent as to any use or trust and therefore it is not to be implied.

The answer is, wherever from the nature of the grant, a trust estate can be implied, with propriety, where it is necessary to carry into effect the object of letters patent, the Court will adopt the implication.

The Court are referred to *7 Bad. Jib. new ed. 89, Sand, on uses,*208, for the doctrine, of the implication of uses.- In 12 *Mod.*162. *Jones Moxley,*it is said that a use. may be declared without the word *use.*Any words that shew the meaning of the party are sufficient. If the Court can suppose that the legal estate was. granted in fee, to the patentees, there can be no difficulty in deciding the nature of their title. .The instrument, upoia *313Which such legal estate depends, will indubitably shew that their only right was for the use of the church.

2. *It*may be said that as there is no church in existence, the legal estate must fail for the want of a use.

It has already been shewn that a church was in when the grant was made and whether the church was or was not incorporated, cannot bo material ; in either case the title in the trustee would be valid. To this point the Court are d. sired to lo >k at 1 *Hep.*23, 24 and. 25, and *Gilb. laws eases,*44, where it will be found that public institutions are capable, of enjoying a trust, and it was decided that the poor of the parish of Dale, although not incorporated, were capable of a trust. With* out adopting the principle that the church can lake 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 wé 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. As a proof that the legislature so meant, observe the following language, “ *and as pitch «by the revolution became vested in the sovereignty of this a state”*Now, sovereign as the state may be., she can have no other or greater title than the crown of Great Britain had after the grant and before the revolution, and that right could be no more than a right reserved for the use of the church; heca-ise it never ought to be supposed that the crown made t' is grant with no other design than to resérve to its lf, what it before had. If the king had an inclination to retain for his own use* a few shares Of the land, he might have done it directly; in the same manner as the pine trees were reserved for Ms royal navy.

This then is che right of the state of Vermont, on their own construction, a r'ghtto do what, by the act of 1787, the 1 .gislature did, like honest, men, and added security to the already existing title of the.church,

*314If the right of the crown was of the nature described, and if the Court can suppose the land reserved to the crown, and that the *king could be a*trustee, they will then say that the state of Vermont could take no estate to the exclusion of the equitable right of the *cestui qui trust,*but any forfeiture of the king or any act óf his, could only prejudice his own rights, and not the rights of third innocent parties. This doctrine will be found in 1 *Blk. Rep.*123, *Surges v. Wheat. Sand, on uses*152 — 3, *also 252,257.*

If therefore the construction of the legislature of Vermont should be adopted, it would only help the Plaintiff to be defeated in tips action; for it cannot be believed that the use as well as the legal estate could be reserved by the grant before the Court.!

Webster, *in reply.*

1. It is said to be the obvious intention of thé grantor to pass, by the grant, all the territory of Pawlet, without any saving or reservation. But this is against the express words of the grant. The grant is made, “ upon the conditions and *reservations*hereafter made j” nor is there any thing in the grant, to which the term “ reservation” can be properly applied, except it be the public rights, as they are usually called, of which thé «aft appropriated for a glebe, &c. is one.

The Defendants counsel further supposes, that al- . though the territory was to be divided into sixty-eight equal parts, yet this was not to designate the proportion which each grantee was to receive $ but that if any person, named in the grant, should not accept, or not be capable of taking, or not happen to be, a person *in esse,*or in other such cáse, then the whole tract would be to be divided among the residue. This is believed not to be a sound construction of the words of the grant. Those words are, «do.give and grant in equal shares , « unto our loving subjects, &c. whose names are entered « on this grant, to be divided amongst them into sixty- *“*eight equal shares, ail that tract,”’ &c. To what.purpose was the tract to be divided into sixty-eight-equal shares, if it were not to ascertain what portion each grantee should have ?

*315But what is conclusive on this point, is, the disposition made of B. Wentworth’s right, lie was to be erititied to two shares. These are actually severed from the 'Common mass, by the grant itself, and marked out on the land. This shews, (hat the share <>f each proprietor was not thought liable to he encreased, by any incapacity in others to take, or other such cause.

A great part of the states of New Hampshire and Vermont were granted by charters, issued in the. name of the crown, by the provincial governors of New Hampshire, which, charters were *in all respects like this.*These charters or grants have received a settl' d construction, which has been followed by long usage, in both .states. No case is known to have existed, in which any grantee has claimed a greater portion of the whole land-, than his name bore to the names on the charter, including the public right j nor has any severance or partition been made, in any case, upon any other rule or principle. To divide the land into sixty-eight equal parts, and then adopt the plan of appropriating the whole to a less number of owners, as, in the example supposed by the Defendant counsel, to three, giving each twenty sixty-eighth parts, and two thirds of one sixty-eighth part more,would he to act without object or motive. Such therefore has never been supposed to have been the course contemplated in the grant. The division or partition of lands holden under these charters has been, as is believed,, in every instance, by dividing the whole into as many parts, commonly called rights, as there were individuals named on the charter, together with the public rights, and allowing two parts to B. Wentworth. The shares allotted to the public rights, are usually designated as the « school right,” “ minister rigl-t.” « society right,” and “ glebe right,” respectively. These hav 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. ' The town corporations, bodies totally distinct from the original proprietors, and owing their corporate existence, in ali cases, to their charters, or to acts of the legislature (for although ibis charter *316undertakes to erect a. corporation, yet, in tact, net corporation ever existi d, or was erected by these grants) have had the management and disposition of the school right. The statutes .of the state make it the duty of the towns, in their corporate character, to make provision for the support of free schools, within the town, aind under the management ■ of fe;e town a thoiity. Thes© school rights having been originally intended to aid in the support of schools,-it has been holden, that-the law, throwing the duty of this support eta the town, has given them the disposition of this fund for thaf purpose. There, being no manner of ¡u’iyity between the town corporations and the original grantees of the soil, the former can derive no title to these, school rights, hut from the law of the1 state. That they have right to them has been settled by mapy decisions, followed by unifonp practice.

The grant to the society for propagating the gospel, presented a different case. That was a corporation, tlien existing, arid still existing in England, capable by its charter, of ¡ olding landsj and doubtless entitled, *originally,*to take the portion intended for it in this grant.' Whether this society was not so far connected with the national church and the *realm*of England, as that its ri-'sts were, divested by the revolution, has never been decided. Actions are- pending, both in the Circuit and State Courts, n which this society is party, in relation to thes“-lands.

The glcbp right has generally, in point of fact, been occupied ur disposed of by the town. No individual has been able to maintain a right to one of these lots, or portions,, upon his ecclesiastical character. It has been holden, on the contrary, that the grant, so far as it undertook to give one, sixty-eighth part for a glebe, was void, for want of a grantee. The Plaintiff’s counsel have been obligingly favored, by the present chief justice of New Hampshire, with notes of the case of.Jilead •». *Kidder,*in the Supreme Court of that state in 1808 ; in which Court tiie same judge then precided. To which case this Court is respectfully referred.

Whether the better construction is, .that there is a *resernauonn*of these lands, by charter, pointing out *317perely the future use, or, tligt a grant was intended, which'cannot take effect, for want of a grantee, is immar tertal in this case. The result is the same.

2.' The Defendant contends that there was a church of England* as by law established, capable of taking. On this point, the Plaintiffs counsel will only remark,

1. That no grant to the church of England, *eo nomirie,*could avail, even in England, to pass the fee. Would such a grant enure to the see of Canterbury, or the diocese of. London ? The church of England, in the aggregate, is not a corporation, but one of the estates of, the realm.

2. But the grant is. limited by the words of the charter itself, to the churi'h of E.nglahd, as by law established, *in the town of Pawlei.*Just as the school right is to be for the support of schools in that town, and the right- of the minister, first to be settled there. If is hardly necessary to draw into the argument even the ■ obvious intent of the grantor. The words themselves aré unequivocal: and. does not the Defendant himself rest his - title upon his connexion with the Episcopal society in Pawiet ?

As to the laws of Vermont, before 1805, they all show, that .the legislature acted on the opinion, that it-might-, dispose of these lands, as public property, in any way it thought proper. It was a question of expediency and propriety; and provision is made, in some of the laws, allowing. Episcopal clergymen, already in possession, to remain seven years.

With respect-to the opinion ascribed to a late judge of this Court, it need only be remarked, that if the cánse, turned on the point supposed, (which does not appear at all from the record), it was but the. opinion of an able judge; formed and pronounced instantly, in the course of a jury trial, without, case reserved, or solemn, argument ; and it is no disrespect to say, possibly without a knowledge ofall circumstances, or a full view ofall consequences.

3. The Defendants. contend, that the fee may have *318passed out of the king, and yet not vested any where# but remained in abeyance. But the text of Black,stone, which he cites, does not bear him out. The estate in abeyance, in the case put by Blackstone, is a fee, remaining after a freehold has been grant( d and vested. With respect to the freehold of a glebe, after the dealh of the and before the naming of a successor, both Eearné and Christian maintain the contrary of Blackstone’s opinion — but (hat is not a.l all this case. - To meet this case, the Defendants most shew, that if a grant be made tq a person not *in esse,*the land nevertheless passes out of the grantor, and remains in abeyance until, iii the course of events, some person arises into being, who answers the description in the grant. •

4. The, observations already made are deemed a sufficient reply to tiie remarks of the , Defendants counsel under this head.

5. It is not supposed possible to give in to the opinion, that this is a *trust estate,*granted to the individuals named in the charter. The ideals wholly novel. Not a syllable in the grant itself intimates'any such thing. All is the other way. How can it be imagined, that the intention was to convey an estate in trust to a large number of individuals,'who were to be, at first, tenants in '■omrcton — then, to divide and hold in severalty — and whose estates, by law, would descend, in *gavel-kind,*to,their heirs? Was B. Wentworth to be a trustee, whose estate was severed by the charter itself? Was the corporation in England to be one of tin1 trustees ? It is hardly necessary to add that the Court would not very willingly construe this grant so as to raise a-trust, which from, the nature of the cáse *never could be executed.*

This, then, is a case, in which the highest Courts of both states have concurred in giving to the' grant in question a practicable and beneficial- construction $ under which very many estates, are holden, and the Court would not incline to disturb these titles, but for irresistible reasons. It must bn remembered, .thatthere are two hundred townships, granted by charters preciselyhke this. In the whole, there áre not probably more than a dozen associations of Episcopalians. ' If the Court should decide, that the legislatures may not dispose of *319these lands, what shall be done with them, in towns where there are no Episcopal societi.s to claim them? Ai-e they to remain* without owners or rightful occu pants, till such chailges in religious opinions símil take place, as that there shall be an Episcopal sóciety in each town.

If this case is to be considered, not as a reservation, but a *grant;*and if this grant is not void, for want of a grantee; then, it must, of necessity, receive this construction ; 1. e. that it was in fact p grant for the use pf such ministry, or such religious purposes, as the *town*should choose, or the. state appoiht j at least, unless the church of England should have been established hy law. The *general*purpose was religious instruction. This duty the laws of the state throw on the towns, and it is a reasonable construction which gives this fund, even without any particular grant'of the legislature, to the-towns, for that purpose. This construction will answer the *general.object*of the grant. In no other way can any of its objects be, answered,, in one case out of fifty. This puts it on the. same ground as the grants for *schools*and *for the use of the ministry,*(a common grant in the charters in the eastern part of New, Hampshire.) The main purposes ofthe grants were *education,*and *religious-instruction*— and, in the events which , have happened, the most safe, and only practicable, construction is to give the funds intended for the promotion of these purposes, to those on whom the law imposes tiie obligation of making adequate provision for these objects. I venture to say such is the *law*of. New Hampshire. .

There is still another question, to which the Plaintiff's counsel wishes to’draw the attention of the Court j and that is, has the Court jurisdiction of tiie cause? Is this a case coming within that clause.of the constitution which gives to this Court jurisdiction over “ controvertí sies between citizens of the same state, claiming lands “ by grants of different states'?” It is submitted, with some confidence, that this is not such a case. These two grants are ndt to be considered as the acts of *different*states, in the sense of the constitution. At the time of the first grant, both the present states of New Hampshire and Vermont formed but one state., They havp become two* by subsequent; sub-division. The first grant *320was made by the state of Vermont, as much as by the state' of New Hampshire. The power from which it emanated was tnesovereign power of'what is now Vermont, precisely as much as it was the sovereign power of what is now New Hampshire. The question is, .between an act of the sovereign power of what is now passed in 1761, and another act of the sovereign power of Vermont. passed in 1805. If, on the division, of territory, that part lying west of Connecticut river had been .called New Hampshire, and the part lying east of that river Vermont, inste..d of the reverse, it seems to the PlaihiiiFs counsel, that iit that case, the whole ground on which the jurisdiction of the Court over this case rests, would have been removed. .

It is easy to perceive the class of cases, for which this provision \va3 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. These cases arise frotó the sub-division of states. One may imagine, f_>r exam-pie, that in the state of Kentucky, ejectments must be often tried, in which grants of Virginia before the divi'sion, and grants of Kentucky since, *might*be. respectively relied on by the parties *;*and yet it would hardly be contended that that circumstance should oust thd Courts of Kentucky of their jurisdiction, and give the cognizance of all such causes to the Courts of the United States. It might be said, in such case, that ¿the ■ grants emanated from different *sí;Vs;*and, nominally, they did so. Still .they both' originated- from á power Laving undoubted authority to grant the territory. The •first grant was not so much the act of a different state, as of the *patent*of both states.- .Virginia, now, differs as much from *’Virginia,*before the severance, as Kentucky now differs. from Virginia before the severance. Kentucky has the same power over her-territóry' *now,*as Virginia had, over the *sanie*territory formerly. She is therefore, as to this, to be considered the same sovereign: power, in other words the Same state. If *integrity of territory*— or retention of jurisdiction dver the whole of the same soil is necessary' to preserve the identity of political power, then Virginia herself is not what she was, a grant of hers *before*the severance, and ft grant *sinee*,*would be grants from different states.

*321Shepheep, *in reply, as to Jurisdiction.*

The counsel tor the Defendants in answer to the objection made to the jurisdiction of the Com b, will only say, that this case is certainly within the literal provision of the constitution and it is presumed the Court will not search with solicitude-to find afar-fetched meaning in repugnance to the letted so long as it can produce, no other object than to send the parties to a trial in the Courts of Vermont, where perhaps there is not a judge to be found but is interested for or against the Plaintiff, in this cause.

This is a case where the lands in dispute have been granted by different states ythat is, by New Hampshire and Vermont.

Now, although these states were all under one jurisdiction, yet when the land was granted by the state of Vermont, they were two sovereign, independent States, and the same reason exists here, that can exist in any case of state controversy, for depriving the states respectively of the power to determine the dispute.

If tnis cause.is to be tried in Vermont, the .¡..ages are to decide under the very strong impressions of a legislative construction, unequivocally made, of the grant; and to give us what we claim as right, they - must decide «.gainst a positive statute of their legislature. So far therefore is th s case, from being taken from the letter of the constitution, by any equitable construction with *&*▼iew to set up the spirit against the letter, that it is within all the reasoning that governed the framers of the constitution, and most perfectly within the meaning of that clause ; . and one of the evils, which must have been intended to be guarded against, exists, at *full length,*in the present case.

"Why was the case of parties claiming land under the grants of different states made cognizable before the United States* Courts ? undoubtedly because wlwre this . state of things exists it is reasonable to suppose that the judges of the states respectively will feelstrong prepossessions and are therefore unfit to decide the strife in relation to the powers and rights of the conflicting stales, *322It is the same reason which induced the giving jurisdietion in, several other cases, such as citizens of different states; and a state and citizens Of another state. In these cases the state Courts may be deprived of their ju*risdiction;*and why? Most indubitably because the the judges of the Courts of. the United States have less interest, and fewer prejudices to overcome, and the parties will be more sure of an impartial decision. And can this reason exist stronger m any case than in the one now before the Court ?

*March 10th.*

- *-Msent....TówD, J.*

Stort, *J.*

delivered the opinion of the Court as follows ;

, The first question presented in this case is, whether the Court ha* jurisdiction. The Plaintiffs claim under .a grant from the state of Vermont, and the Defendants claim under a grant from'the state of New Hampshire, made at the time when the latter state, comprehended the whole territory of the former state. The constitution of the United States, among other things,, extends the judicial'power of the United States to controversies between citizens of the same state claiming lands undec grants of different ’states.” it is argued that the grant under which the Defendants claim is not a grant of. a different state within the meaning of tlie constitution, because Vermont, at the time of its emanation was not a distinct government, but was included in the same sovereignty as New Hampshire.

But it seems to us that there is nothing in this objection. The constitution intended to secure anr impartial tribunal for the decision of causes arising from the. grants of different states 5 and it supposed that a' state tribunal might not stand indifferent in. a controversy wlr re the claims of its own süv¡ reign were in conflict with those of another sovereign. It had no reference whatsoever to the antecedent situation of the territory, whether included- in one sovereignty of another;. It simply regarded the fact whether grants/arose under the same or under different, states. No'W,'it is ver^' clear tháíí although the territory of Vermont was once, a part of New Hampshire/ yet the state of Vermont, is its *323sovereign capacity,, is not, and never was the same as" the state of New Hampshire. The grant of the Plaintiffs emanated purely and exclusively from the sovereignty of Vermont,* that of the Defendants purely and exclusively from the sovereignty of N<w Hampshire. The sovereign power of New Hampshire remains the same although it has lost a part of its territory; that of Vermont never existed until its territory was separated from the jurisdiction of New Hampshire. 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,* arid the grant of the Plaintiffs could not have'been made by New Hampshire, since, at that- time, New Hampshire had no jurisdiction or sovereign existence by the name of Vermont. The case, is, therefore, equally within the letter and spirit -of the clause ortho constitution. It would, indeed, have been a sufficient answer to the objection, that the constitution and laws of the United States, by thé admission of'Vermont into the union as a distinct government, had decided that it was a different state from that of New Hampshire.

The other question which has been arguéd is npi without difficulty. It is contended by thé Plaintiffs that thé original grant, in the charter of Pawlet, of «one «.share for a glebe for the church of England as by law « established,” is either void for want of a grantee, o,r if it could take effect at all, it was as.a public reservation, which, upon the revolution, devolved upon the state of Vermont.

.The material words of the royal charter of 1761 are,. « do give and grant in equal shares untó our loving sub«jeets. &c. their heirs and assigns forever, whose names « are entered on this grant, to be divided-amongst them «into sixty-eight equal shares, all that tract or parcel « of land, &c. and that the same be and hereby is incor*324««porated into a township by the name of Pawlet; -and “ the inhabitants that do or shall hereafter inhabit the •> said township, are hereby declared to be infra nohised “ with and entitled .to all and every the privileges and ‘• immunities that other towns within our province by “ law exercise and enjoy. To have and to hold the “ tract, of land, &c. to them and their respective heirs « and assigns forever, upon the following conditions,” &c.

Upon the charter ate endorsed the names of *sixty-two*persons, and then follows this additional clause; “ His excellency, Henning Wentworth, a tract of land “ to contain 500 acres as marked in the plan B. W- “ which is to be accounted two *shares;*one share for «« the incorporated society for the propagation of the ««gospel in foreign parts; one share for a glebe for the ««.church of England as by law established ; one share ««for the first settled minister of the gospel; one share «for the benefit of a school in said town.” Thus making up, with the preceding sixty two shares, the whole number of sixty-eight shares stated in the charter. ’ . '

Before we proceed to the principal points in controversy, it will be proper to dispose, of those vvhich more immediately respect the legal construction of the language of the charier. And in our judgment, upon the true construction of .that instrument, none of the granr tees,- saving governor Wentworth, could legally take more than one.single, share, or . a sixty-eighth part of. the' township. This construction is conformable to the letter and obvious intent of the grant, and, as far as we have any knowledge, has been uniformly adopted in New Hampshire. It is not for this Court upon light grounds or ingenious and artificial reasoning to disturb a construction which-has-obtained so ancient a sanction, and-has settled So many titles, even if it were at first somewhat doubtful. But it is not in itself doubtful; for if is the only construction which will give full effect to all the words of the charter. Upon any other, thei words “ in equal shares,” and ««to be divided amongst them in sixty-eight equal shares,” would be nugatory or senseless. We are.further of opinion that the share for a glebe is not vested in the other grantees having á capacity to take, and so in the nature of a condition, *325use, or trust, .attaching tp the grant. It is no where staled to lie a condition binding upon such proprietors, although other conditions are expressly specified. 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 sitares 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 repugnant to the content, or manifestly requiring a different one. It is very clear that the society for Jie propagation of the gospel take a legal, and not a. merely equitable estateand there would be no repugnancy to the context, in considering the glebe, in whomsoever it may be held to vest, as a legal éstate.

We are further of opinion that the three shares in the charted- “ for a glebe.” “ for the first settled minister,”. and “ for á school,” are to be read in connexion, so/as to include in each the words “ in the said town,” i. e. of Pawlet; so that the whole clause,is to he construed, on,e share for a glebe, &c. *in the town of Pawlet,*one share for the first settled minister *in the town of Pawlet,*and one share for a school *in the town of Paw-let.*

We will now consider what is the legal operation op 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 in* deed one of the great estates of the realm; but is no' more, on that account, a corporation, than tiie nobility in their collective capacity. The phrase, ‘¿the church of England,” so familiar in our laws and judical treatises, is nothing more than a compendious expres: sion for the religious establishment of the realm, considered in the aggregate under the superintendance of its spiritual head. In this Sense the church of England is said to have, peculiar rights and privileges, notas a corporation, but as an ecclesiastical institution under the patronage of the state. In this sense it is used in magna chacta, chi 1, where it is declared « *quod ecclesia anqli- ** cana libera sit, et habeat omnia jura &uá integra’, el ti-**326*“ deviates suas illwsas;’?*and lord Coke, in Ms comnientary on the'text, obviously so understands it, 2 *Inst.*2, 3. The argument, therefore, that supposes a donation to “ the church of England,” in its colhctive capacity,' to be good, cannot be supported, for no such corporate body exists even in legal contemplation.

But it has been supposed that the.« church of En- « gland 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 lie effectually vindicated through their- established head, 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. IN or is this supposition without the countenance of authority.

The expression, parish church, has Various significations. It is applied sometimes to a select body of Christians forming a local spiritual association; and sometimes to the building in which the public worship of the inhabitants of a parish is *celebrated;*but the true legal notion of a parochial church is a consecrated place, having attached to it the rights of burial and the administration of the sacraments. *Com. Dig. Esglise, C. Seld. de Decim. 265.*2 *Inst.*383. i *Burn’s Eccles. law,*217. 1 *Woodes,*314,. Doctor Gibson, indeed, holds that the church in consideration of law is properly the cur© of souls, and the right of tithes’. *Gibs.*189. 1 *Burn’s Eccles. law,*232.

.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 ho legal exist* nee as a church. Com. *Dig. Dismes, B.*2. 3 *Inst.*203., *Gibs.*190. 1 *Burn’s Eccl. law,*233. Com. *Dig. Esglise, A. Dort. of Plural,*80 When a church has Urns acquired all the ecclesiastical rights, it becomes irt the language of law a rectory or parsonage, which consists of a glebe, tithes and oblations established for th’e maintenance of a par* *327sbn'or rector to Have cure of squIs within the parish. *Com. Dig. .Ecelesiast. persons, f C. 6. J*

These capacities, attributes and rights, however, in order to possess a legal entity, and much more to be susceptible of a-legal perpetuity, must’he invested in some natural or corporate, body; for in no other way can they be exercised or vindicated. And so -is the' opinion of lord C-oke in 3 *Inst.*201, 202, where he says, “albeit they” (i. e. subjects) “might build churches “ without the king’s license, yet they could not erect- a “ spiritual politic body to continue in succession and “ capable of endowment without the king’s license ; but. “ by the common law before the statute of Mortmain “ they might have endowed the spiritual body once in- “ corporated *perpetms fuluris temporibns,*without any 11- « cense from the king or any other.”

This passage points clearly to the necessity of a spiritual corporation to uphold the rectorial rights. We shall presentlysee whether tlx1 parish church, after consecration, was deemed in legal intendment s.iCh a corporation. in his learned treatise on tenures, ford chief baron Gilbert informs us that anciently, according to the superstition of th° age. *abbots*ami *pretales*“ were “ supposed to be married to the church, in as much as “ the *right of property was vested in the church,*the es«tate'being appropriated, and the bishop and abbot as “ husbands and *representatives of the church had the right*“ *of possession*in them ; and this the rather because they “ might maintain actions and recover, and hold Courts « within their manors and precincts as the entire own- “ ers ; and that crowns and temporal states might have “ no reversions of interests in their feuds and donations. «Therefore, since they had the *possession ip fee,'they*“ might alien in fee; but Jhey could not alien .more than «the right of possession that was in them, for the' right “ of propriety was *in the church.”*But as to a parochial parson* “ because the cure of souls was only com- « mitted to Him during life, he was not capable of a fee, “ and, therefore, the fee was in abeyance.” *Gilb. Tenures, 11*0, &c.

Conformable herewith is the-doctrine of - Bracton, who observes that an assize *juris utrum*would not lie *328in cases of a gift of lands to cathedral and conVcntpal churches, though given in *liberam eleemosynam,*because they were not given *to the church solely,*but also to a parson to be held as a barony, *non solum dantur eccksiis, sed■ et personis tenemioe in baronía;*and, therefore, they might have all the legal remedies applicable to a fee. lie say6 it is otherwise to a person claiming land in right of his church, for in cases of parochial churches, *gifts were not considered as made to the parson, but to the church, quia ecclesiis parochialibus non ft donatio persones, sed ecdcsice, secundum perpemli poterit per modum donationis. . Bracton,*286, 6. 1 *Reeves Hist, law,*369, And in another place, Bracton, speaking of the modes of acquiring property, declares that a donation may well be made to cathedrals, convents, parish churches and religious personages, *poterit etiaiii .donatio fieri in liberam eleemosynam, sicut ecclesiis cathedralibus,*convenlualibus, parochialibus, *vivis religiosis,*&c. *Bracton,*27, *b.*1 *Reeve Hist. law, 303.*

The language of these passages would seem to consider cathedral, conventual, and parochial churches as corporations of themselves, capable of holding lands. But upon an attentive examination it will be found to be no inore than an abreviated designation of the nature, quality and tenure of different ecclesiastical inheritances, and that "the real spiritual corporations, which are taciily referred to, are the spiritual heads of the particular church, viz. the bishop, the abbot, and, as more important *to*the present purpose, the parson, *qui gent person-am eedesim.*

Upon this ground it lias been held in the year books, 11 *If.*4, 84, *b,*and has been cited as good law by Fitzherherl and Brook. .(Fitz: *Feofft. pl. 42.—*Bro. *Estate pl.*49, *S. C. Finer, ab. L. pl.*4.) that if a grant bo made to the church of such a place, it shall be a fee in the parson and his successors. *Siterre soit done per ceux parolee, dedit'et'concessit ecclesiis de tiel lien, leparson etses snccessen rs serra inker iter.*And in like manner if a gift, be of chattels to parishoners, who are no corporation, it is good and t!ie church wardens shall take them in succession, for the gift is to. the use of the church. 37 H. 6, 30 — 1 *lújd. Corp.*29. '

*329in. other cases the law looks to the substance of the gilt, and in favor of religion, vest sit in the party capable of taking it. And notwithstanding the doubts of a learned, but singular mind, *Ferk.*§ 55, in our judgment the grant in the present charter, if there had been a church actually existing in Pawltt at the time of the grant. must, upon the common law have received the same construction. In the intendment of Jaw the parson and his successors would have been the representatives of the church entitled to take the donation of the glebe. It would in effect have been a grant to the parson of the church of England, in the town of Pawlet, and to his .successors, of one share in the township, as an endowment to be lie Id *jure ecclesice;*for a glebe is emphatically the dowry of the *church; Gleba cst terra qua consistit dos ecclesice. Lind.*254.

Under such circumstances, by the common law, the existing parson would have immediately become seized of the freehold of the globe, as a sele corporation capable of transmitting the inheritance to his successors.

Whether, *during his lif :,*the fee would he in abeyance according to the ancú nt doctrine *(Litt.*§ 646, 6 *47.—Co.*Lit. 342. *5*Ed*w.*4, *405.*—Byer *71. pi. 43.*— Mob. 338.— *Coni/ Big. Abeyance A. Id. Ecclesiastical persona,*C. *9.*— Fork. § *709,)*or whether, according (o learned opinions in modern times, the fee should bo considered as *ipuudam modo*vested in the parson for the benefit of his church and ids successors, *f Co. Lit.*341, *a. Com.*Dig. *.Ecclesiast. persons, C. 9.*— Fearne, *coni,' rem. BIS, 8pc. Christian’s note to*2 *Black. Com.*107, *note 3.*— Gitb. *tenures US.*1 *TFoodeson*312,J is not very material to to be *settled;*for at all events the. whole fee would have passed out of the crown. *Lilt..*§ *648.*— Cc; *Lit.*341, *a, Christian’s note ubi supra. ,Gilb. tenures*113. Nor would it be in tho power of the crown, after such a grant, executed in the parson, to resume it at its pleasure, it would become a perpetual inheritance of the church, not liable, even during a vacancy, to be divested; though by consent of all parties interested, viz : the patron, and ordinal), and also the parson if the church were full, it ' might be aliened or encumbered. *Lett.*§ 648. *Co. Lit.*343. *Ferk.*§ 35. — -1 *Burn’s*ecclesiast. *laxv*5Si<

*330But in as much as there was not any church dulyconsecrated and established in Pawlet at the time of the chaiv ter', it becomes necessary further to enquire whether, at common law,' a grant so made, is wholly void for want of a corporation having a capacity to take.

In general no grant can take effect unless there be a Sufficient grantee then in existence. This, in the case of corporations, seems pressed yet further; for if therebean aggregate corporation, having a head, as a mayor and commonalty, a grant or devise made to the corporation during the vacancy of the headship is merely voidj although for some purposes, as for tlie choice of a head, the corporation is still considered as having a legal entity, 13 *Ed,*4, 8. IS *Ed.*4, 8, *Bro. Corporation, 58,*59.— *Malison, IL*31. — :! *ICydl Corp.*106, *107,*— -Perk. $ 53, SO. Whether this doctrine has been applied do parochial churches during an avoidance has not appeared 'in. any authorities that have fallen within our notice / and perhaps can be satisfactorily settled only by a rccurrenc® to analogous principles, which have been applied to the original endowments of such churches.

We have already seen that no parish church, as such, could,have a legal existence until *consecration;*and consecration was expressly inhibited unless upon a suitable endowment of land. The cannon law, following the civil law, required such endowment to be made or at least ascertained, before Die building of the church wa* begun. *Gibs. 189.*— 1 *Burn’s Modes, law,*233. This endowment was in ancient, times commonly made- by an allotment'of *vwnse 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, parrels, *Ken. Par. Autx*222, *223,£ited in 1 Burn’s, Modes, law,*284. The manner of founding the church and making the- allotment was for the bishop or his commissioner to, set up a cross and -set forth the ground wlvre the church was to be built, anti it then became the endowment of the church. *Doggo, p.*1, *oh,*12, *cited*1 *Burn’s, Modes, law,*233.

*331From this brief history of the foundation of parsonages and churches, it is apparent that there could be no spiritual or other corporation capable of receiving livery of seizin of the endowment of the church. There could be no parson, for he could be inducted into office duly as a parson of an existing church, and .the endowment must precede the establishment thereof. Nor is it even hinted that the land was conveyed in trust, for at this early period trusts were an unknown refinement. The land therefore must have passed out. of the donors, if at all, without a grantee, by way of public appropriation or dedication to pious uses. In this respect it would form an exception to the generality of the rule, that to make a grant valid there must be a person *in esse*capable of taking it. And under such circumstances, until a parson should be legally inducted to such new church, the fee of its lands would remain in abeyance, or belike the *hear editas jacens*of the Roman code in expectation of ».n heir. This Would conform exactly to the doctrine of the civil law, which, ás to .pious donations, Brae ton has not scrupled to affirm to be the law of England. *Res vero sacres, religiosos,, et sonetee in nullius bonis sunt, quod enim divini juris est, id in nullius hominis bonis est, immo in bonis dei hominum censura, Spc. Res quídam nullius dienntur ■ pluribus modis, $v. ' Item censura (ut dictum est,) sicut res sacres religiosos et sonetee.. Item casu, sieut est' hoereditas jacens ante addiiionem, sed fallit in hoc, quia oustihet vicem persones defunvti, vel quia speratur futura hoereditas ejus, qui ádibit. Bracton,-8, a. Juslin. in, stit. lib.*2, *tit. 1.*— Co. *Lit.*342.. on *Lilt.*§ 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 wit,h his own money and put it up, the, property passes from the purchaser, because, when put up, it is consecrated to the church, 11 *H*4, 12, 1 *Kyd. Corp.*29, 30. These principles may seem to savour of the ancient *law;*but in a modera case in which, in argument, the doctrine was asserted, lord Hard wicke. did not deny it, biit simply decided that the circumstances of that case did not amount to a donation of the land, on which *332a chappel had been built, to public and pious uses. .At*torney General v. Foley,*1 *Dick. R.*363. 'And in an intermediate period, lord chiefjustice Dyer held tliat if the .crown by a statute renounced an estate, the title was gone from the crown, although not vested in any other person, but the fee remained in abeyance.

[t is true that Weston, *J.*Avas, in thé same case, of 'a different *opinion;*but lord chief baron Comyns,has quoted Dyer’s opinion ¿without any mark of disapprobation. *Com. Dig. Meyanee, Jl.*1.

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 ben--fice 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 consent which is necessary for the alienation of other church property, vis: the corisrnt of the ordinary, and parson, if the church befall, or in a vacancy, of the ordinary alone.

And the- same principles would govern the case before the Court if it were to be decided upon the mere footing of the common la\y. ' If the charter had been of a township in England, the grant of the glebe, wouid have taken effect as a dedication to the parochial church of England to be established therein.

Belore such church were duly erected and consecrated the fee of the glebe would remain in abeyance, or at least be beyond the power of the arown to alien without the ordinary’s consent. Upon the erection and consecration of such a church 3ml the regular ind .ction of a parson, such parson and his successors would, by operation of law and without further act, have taken the inherUancc jare *ecelesice.*

I,et us now see liow. far these principles were applicable to New Hampshire, at the time of issuing of the charter of Pawlet.

New Hampshire was originally erected into a royal *333province-in the 31st year of Charles 2d, and from thence until the revolution, continued a royal province, under the immediate control and direction, of the crown. By the firstroyal commission granted in 31, Charles 2, among other things-judicial powers, in all actions, were grant-e,d to the provincial governor and council, « so "always “ that the form of proceedings in such cases, and “judgment thereupon to be given, be as consonant and *“*agreable to the,laws and statutes of this our realm of *“*England,- us the present state and condition of our sub-ejects inhabiting within the limits aforesaid (i. e. of the *‘*province) and the circumstances of the place will ad■■"mit.” Independent, however, of such a provision, we. take it to be a clear principle that the common law in force at the emigration of our ancestors is deemed (be birth right of the colonies unless so far as it is inapplicable to their situation, or repugnant to their other rights 'and privileges. *J1 fortiori,*the principle applies to a royal province.

By the same commission or charter the crown granted to the subjects óf the province, “ that liberty of con- « science4 shall be .allowed to all Protestants,' and that *“*such especially as shall be conformable to the rites of «the church of England shall be particularly countenanc«ed and encouraged.” By a subsequent commission of 15 *Geo.*2, the governor of-the province among other things, is authorized «to collate any person.or persons *e‘*to any churches, chappels, or other ecclesiastical bene- “ fices, within our said province, as often as any shall « happen terbe void,” and this authority was continued and confirmed in the same terms by royal commissions, *in*1 *Geo,*3, *and*6 *Geo.*3.. By the provincial statute of 13 *Jinn, ch.*43, the respective towns in the province were authorized to choose, settle and maintain their ministers, and to levy taxes for this purpose, so always that no person wiio constancy and conscientiously attended public worship according to another persuasion should be excused from taxes. And the respective towns were further authorized to build and repair meeting houses, minnister’s houses and school houses, and to provide and pay school-masters. This is the whole of the provincial and royal legislation upon the subject of religion.

In as much as liberty of conscience was allowed and *334tlie church of England wa3 pót exclusiyely' established, the ecclesiastical rights to tithes, oblations arid other dues >had no'legal, existence in the. province.' Neither, upon tlie establishment of churches, was a consecration by the bishop, or a presentation of a parson to the ordinary, indispensible,- for no bishopric. existed within the province.

But the common law so far as it respected the erection of churches of the'Episcopal persuasion of England, the right to present, or collate to such churches, and the corporate capacity of the parsons thereof to take in succession, seems to have been fully recognized and adopted. It was applicable to the situation of the province,' was avowed.in the royal grants and commissions, and explicitly referred to in the.appropriation of glebes, in almost all the charters of townships in the province.' Arid it-seems to be also clear that it belonged bo the crown ex-fclusively, at its own pleasure, to erect the church in each town that should be entitled to take the glebe, and uport such erection to collate, through the governor, a parson to the benefice. The respective towns in their corporate capacity had no control over the *glebe;*but in as much as they were bound, by the provincial statute, to maintain public worship, and had therefore an interest to be eased of the public burthen, by analogy to the common law-in-relation to the personal property of the parish church, the glebe could not, before the erection of .a church, be aliened by the crown without their *consent;*nor after tlie erection of a church and induction of a parson, could the glebebe aliened without the joint consent of the crown as patron, the parson as *persona ecclesicie,*and the parishonefs of tlie'church as having a temporal as well as spiritual interest, and thereby in effect representing the ordinary.

But a mere voluntary society of Episcopalians within a town, unauthorized by the crown, could no more entitle themselves, on account of their religious tenets, 'to the glebe, than any other society worshiping therein.

The church entitled, must be a church recognized in Saw for this particular purpose. Whenever therefore, Within the province, previous to the revolution, an Episcopal church was duly erected by the crown, in any town, *335the parsons thereof regularly inducted had a right to the glebe in perpetual succession. Where no such church was duly erected by the. crown, the glebe remained as an *hcereditas jaqens,*and the state which succeeded tp the rights of the crown, might,, with the assent of the town, alien or encumber it j or’’might erect an Episcopal church therein, and Collate, either directly, or the voté of the town, indirectly, its parson, who would thereby become seized of the glebe *jure ecdesice,'*and be a corporation capable of transmitting the inheritance.

Such in our judgment are the rights and privileges of the Episcopal churches of New Hampshire, and the legal' principles applicable t'o the glebes reserved in the various townships of that state previous to the revolution. "And without an adoption of some of the common law in the manner which I have suggested, it seems very difficult to give full effect to the royal grants and commissions, or to uphold that ecclesiastical policy which the crown. had a right to patronize and to which it so explicitly avowed its attachment.

It seems to.be tacitly, if not openly, conceded, that before the revolution, no regular Episcopal church was .established in Pawlet. By the revolution the state' of Vermont succeeded to all the rights, of the crown, as to the unappropriated as well as appropriated glebes.

It now therefore becomes' material to surveythe statutes which the state of Vermont has,’ from time to time, passed on this subject.

By the statute of 26th of..Getob.er, 1787, the selectmen of the respective towns were authorized during the then *septenhary*(which expired in 1792,) to take the care and inspection of the glebes and to lease the samfe for,1 and during the same term; and further, to recover possession of the same, where they had been taken possession of by persons without *title;*but an exception is made in favor of ordained Episcopal ministers, who during their ministry within the same term, were allowed to take the profits of the glebes within their respective towns. • Th« statute of SO.th October, 1794, granted to their respective towns the entire property of the. glebes, therein sittiat *f,for the sole use and support of religious-worship*; and *336authorized the selectmen of the towns to lease aPd recover possession of such gleb.es. This act was repoaled by the statute of the 6th of November, 1779. But by the statute of the 6th of November, 1806, the glebes were again granted to the respective towns, *for the use of the schools of such*towns; and power was given to the seto sue for possession of, and to lease the same.

By the operation of these statutes, and especially, of that of 1794, which, so far as.it granted the glebes to the towns, could not afterwards be repealed by the legislature so as to divest the right of the towns under the grant, the towns became respectively entitled to all the glebes situate therein which had not been previously appropriated by the regular and legal erection ol' an Episcopal church within the particular town ; for in such case the towns would legally represent all the parties in interest, viz. the state which might be deemed the patron, and the parish.

Without the authority of, the state, however, they could not apply the lands to other uses than public worship; and in tiiis respect the statute of 1806, conferred a new right which the towns might or might not exercise at their own pleasure.

Upon these principles the Plaintiffs are entitled to recover, unless the Defendants shew, not merely that before the year 1794, there was a society of Episcopalians in Pawlet, regularly established according to the rules of that sect, but that such society was erected by the crown, or the state', as an Episcopal church (i. e. the church of England,) established in the town of Pawlet. For unless it have such a legal existence, its parson cannot be entitled to the glebe reserved in'the present charter.

The statement of facts is not, in this particular, very exact; but it may be inferred from it that the Episcopal society or church was not established in Pawlet previous to the year 1802. in what manner and by what authority it was then established does not distinctly appear. ’ As the title of the Plaintiffs is however *prima facie*good, and the title of the Defendants is not shown to be sufficient, upon the principles which have been stated the Plaintiffs would seem entitled to judgment.

*337There is another view of the subject which if any doubt hung over that which has been already suggested would decide the cause in favor of the Plaintiff's.,. And it is entitled to the more weight because it seems in an alago us cases to have received the approbation and, sanction of the state Courts of New Hampshire, in the various royal. charters of townships in which shares have reserved for public purposes (and they are numerous) it has been held that the shares for tbetirst settled minister and for the Benefit of a school, were vested in the tow» In its corporate *capacity;*in the latter case as a fee simple absolute, in the former case as a base fee, determinable upon the settlement, of the first minister by the town.

The foundation of this construction is supposed tobe that the town is by law obliged to maintain public worship and public schools and that therefore the legal title ought to pass to the town, which is considered as the real *cestui que*use; By analogy to this reasoning the share'for a glebe might be /deemed to be vested in the town for the use of an Episcopal *church;*and-theji before any such church should be established, and the use executed m its parson, by the joint assent of the legislature and the town, the land might at any time be appropriated to other purposes.

We do not profess to lay any particular stress on this last consideration, because we are entirely satisfied *to*vest the' decision .upon the principles wtiieh have been before asserted;

On the whole, the opinion of. the majority of the Court is, that upon the special statement of facts by the parties) judgment ought to pass for the Plaintiffs;

Johnson, *J.*

The difficulties in this case appear to me to .arise from refining too'much upon the legal principles relative to ecclesiastical property under the laws of England.

I find no difficulty in getting a sufficient trustee to sustain the fee until the uses shall arise.

It is not material whether the corporation of Pawlet *338consist of the, proprietors or inhabitants. The grant certainly vests the legal interest in the proprietor; and it is in nothing inconsistent with this idea to admit that the corporate powers of the town of Pawlet are vested in the inhabitants. The proprietors may still well be held trustees, but the application of the trust may be subject *to*the will of the whole combined population.

1 therefore construe this grant thus, we vest in you so touch territory* by metes and bounds, in trustrto divide the same into sixty-eight shares; to assign one share ih fee tó each of you, the grantees, two to the go-tenor* one to the church of England' as by law established, &c. This certainly would be a sufficient conveyance to support the fee for the purposes prescribed.

But the difficulty arises on the meaning of the words *“*chftrrfi of England as by law established.” This was unquestionably meant to set apart a share of the land granted, for the use of that class Of Christians known by the description of Episcopalians. 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’pfor whose use this reservation wras 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*fe* until such person or body became constituted and íécognized. I see nothing to prevent the legislature jtself from making an appropriation of this property.

Their controlling power over the corporate body denominated the totvn of Páwlet, certainly sanctioned such an act; and before the act passed in this case therft does not appear to have been in existence a person', or body of men, in which the use could have vested.

• 1 therefore concur in the decision of the Court.