Richmond enquirer. [volume] (Richmond, Va.) 1815-1867, 1831-05-13

ItuuCuh W ODttdt Ou dCtiOnS dutdON VI I'LL use
where the plaintiffs would not pay the taxes until after
a recovery Of the lands; but even this was not sufficient
TO justify 20 mischievous a section.
! He remarked, that il had been said that Chief Justice
Marshall had expressed an opinion favorable to the con-
s,itutionalty OF Ibis bill. He knew the report was not
well founded, and his respect tor that gentleman in
duced him 10 address n note TO Washington City, re.
ques ing the Judge TO permit him TO deny the report,
which he had kindly done. Here Mr.. NJ. read the
letter TO Judge Marshall and the Judges reply, in
which, he OF course, stated that he had expressed no
opinion, and would express none, on the constitutionali-
~ Of a law that might afterwards come judicially before
him] But we are informed that other gentlemen OF
high legal attachments think the bill 10 be wholly con-
stitutional. There is no doubt of this; and il is just as
we'll known, that there are others OF as high legal attain
mcnts as any n this nation, who think differently. This
state of things alone makes the provisions extremely
Objectionable.
In discussing the I'd and Sd section, Of the bill, he
would first show, that the Legislature cannot, by the
exercise of its mere will aud pleasure, resume the
property OF one class OF persons granted out under public
laws upon a goo consideration, with a view of granting
the same property out to other persons, either for the
same, or a better consideration. This would be the ex-
ercise oil absolute power, and would leave no security
Whatever, Tor the enjoyment OF property for one mo-
ment So, in considering this bill, we are constantly to
keep in view the main object to be effected; and ii il be
merely to take one mans land and give il TO another,
whether from notions OF public policy, or mere PARTIAL.
ty 10 our constituents, il is equally am attack upon the
Constitution OF our country, and the first principles OF
Tree government. What then is the object? Not the
enforcement OF the payment OF taxes! Because the I'd
section, actually shuts the door at once against the paw
mcnt OF all taxes due before 1921; and absolutely takes,
torteits and resumes the lands delinquent. Then the
object is TO get the lands. Aud another section pro-
vides for transferring the lands, so taken, to such per-
sons as shall be in possession under junior grants; and
those lands, not so occupied, are 10 be sold for the taxes
and damages, according TO the provisions of the act of
ISL, which provides for a sale of only so much as
shall be necessary to pay the taxes and damages. The
3d section is TO have precisely the same effect, as to all
lands returned in 1921, aud since. which shall be delin-
quent after the LIST of Nov. 1888; and the only difference
in the two is, that the last will give the delinquents an
Grim # a1iaxfnr ,ga L., .....- H. A..
es, instead of going into a court OF justice for relief
The one is as uncons ituti nal as the other. The Lee
gislature is operating upon a state OF facts which now
exists, an whether from the poverty or the negligence
OF the people, ii is not known, nor is il material. One
thing is certain, that this bill was neither known nor ex-
Pecied when the delinquencies occurred. Is this, then,
a sufficient excuse for doing what Otherwise we would
not presume TO dor Or will this state of facts make the
act constitutional Certainly it cannot: And it is vain
and useless to indulge in the arguments of necessity
and public policy; tor, they cannot change the Constitu-
ton. Attempts TO resume the property of individuals
since the time ofthe Agrarian laws, have been so seldom,
that but few authorities can be found on the subject;
and as TO the particular kind of torfeitures proposed in
these sections, he would candidly state, he could find no
authority precisely in point; but he could find enough
TO convince his mind that the sections under c~onsidera-
ton are improper.
The Legislature, from a well-founded desire to pro-
mote the public good passed several acts for the resump-
lion OF the property belonging TO the Episcopal Churches
IN Virgins; and TO grant them out TO the Overseers for
the use OF the poor;'but they were declared unconstitu-
tional and void, by the Supreme Court of the United
States, in the case OF Tcrrett VS.. Taylor, 9th Cranch 4S.
This case was carried from that part OF The District of
Columbia, which formerly belonged to Virginia.
He read from Wheaton's Digest, the following d.
gested report OF the case The property so acquir-
ed by the Church, remained unimpaired, notwithstana H.
ing the Revolution. The Statutes of Virginia OF I776,
c. ?, of 1854, c. SO, of 17S6, c. IL, and of l7Ss, C. Al,
completely confirmed and established the right of the
Church TO all its lan!s and other property. All these
Statutes were repealed by the Statute of 1898, C. 8, as
being inconsistent with the principles of the Constitu-
ito and religious freedom and by the Statute of 1901,
~ X Iuyhf,h una aggaI oFo. .t-- n:...:- q rI -.
was finally separated from the States of Maryland s. Yir-
ginia,0 the Legislature asserted its rights TO all The pro-
perty OF the Episcopal Churches, in the respective par
ishes Of the State and directed and authorized the
Overseers Of the Poor, in each parish wherein any
glebe land was vacant, or should become so, to sell the
same, and appropr ate the proceeds TO the use of the
poor OF the Parish. Held by the Court, that the lands
so attempted TO be sold, still belonged to the Episcopal
Church of the Parish where they are situated, and had
not been ~rightfully Invested by the Revolution, or by
any acts OF the Legislature since and that the Over
seers of the Poor OF the respective Parishes, have no
just, legal, or equitable title TO the same-but that the
same may be sold for the use of the Church, upon the
applica ion of the Vestrymen and Trustees, with the
assent of the Minister.
1t is a principle OF the Common Law, that the d-
vision OF an Empire creates no forfeiture of previously
vested property ; and the dissolution of the regal Gov
eminent, no more Invested the property of the Episco-
pal Church, and vested ii in the State, than it did the
property OF any other Corporation or individual. The
Legislature cannot repeal Statutes creating private cor
porai'on'. or confirming TO them property already ac-
quired under the faith OF previous Jaws, and by such
repeal, vest the property oil such corporations exclusive
ly in the State, or dispose Of the same 10 such purposes
as ii may please, without the consent or default of the
Corporators." A private Corporation, it is said, "may
lose its franchises by a miS-,tser or non-user," amount
ing TO a violation of the Charter hut this must be tried,
and the franchises " resumed by the Government, I'M
der a judicial judgment upon a quo ,oGTrdnto. to ascer-
tain and enforce he forteiture.' This is the kind OF
default and not disobedience to an act improperly in
tertering with the rights OF the parties. These private
Corporations stand upon the footing OF grants TO indivi-
duals and their rights are protected for the same rea-
sons. The absurdity OF resuming the property of one
man, and giving ii to another, il no doubt the reason we
have so few cases But the difficulty of determining
between what are public and what are private corpora
tons, has given rise TO cases enough, TO afford ample
authority to show, that the Legislature cannot, either
directly or in"irectly exercise this arbitrary power,
either as to individuals or private corporations. Re-
Stunning the glebe land was considered at the time TO be
good policy, for the subject was frequently before the
Legislatures; yet, the Supreme Court has declared these
laws void and of no effect. 1t is said, when the ques-
ton was before our own Court of Appeals, a majority
Of the Judges were OF the same opinion. But i'll health
prevented a most abb and learned Judge from attending
the Court, aud delivering an opinion, prepared against
the validity of the laws and the question was decided
without a full Court.
The case of The Town OF Powlet VS.. Clark, 9th
Cranch, 292 il very similar TO the case just referred TO.
This was an attempt on The part Of the Legislature OF
Vernon, to resume cert in glebe-IsDds, which under
the royal grant and a former act Of Assembly, were re-
served to the towns az commons. 10 The vent of there
being no regular church TO whose use they might be
apr )pria:ed. The substance Of the decision i, hat
The operation ot the several statutes of Vermont on
In subject, and especially that Of 1874, (Which, 90 far
az u grained the globes reserved in the oval charters
10 the towns in that Tart of New-H,mpshirs, which
we subsequently included in the State OF Vermont,
could not Afterwards he repeated by The legislature e.
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