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TOWN OF PAWLET V. CLARK, 13 U. S. 292 (1815)

U.S. Supreme Court

Town of Pawlet v. Clark, 13 U.S. 9 Cranch 292 292 (1815)

Town of Pawlet v. Clark

13 U.S. (9 Cranch) 292


This Court has jurisdiction, where one party claims land under a grant from the State of New Hampshire and the other under a grant from the State of Vermont, although at the time of the first grant Vermont was a part of New Hampshire.

A grant of a tract of land in equal shares to sixty-three persons, to be divided amongst them into sixty-eight equal shares, with a specific appropriation of five shares, conveys only a sixty-eighth part to each person. If one of the shares be declared to be "for a glebe for the Church of England as by law established," that share is not holden in trust by the grantees, nor is it a condition annexed to their rights or shares.

The Church of England is not a body corporate, and cannot receive a donation eo nomine.

A grant to the church of such place is good at common law, and vests the fee in the parson and his successors. If such a grant be made by the Crown, it cannot be resumed by the Crown at its pleasure. Land at common law may be granted to pious uses before there is a grantee in existence competent to take it, and in the meantime the fee will be in abeyance. Such a grant cannot be resumed at the pleasure of the Crown.

The common law, so far as it related to 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 was recognized and adopted in New Hampshire. It belonged exclusively to the Crown to erect the church in each town that should be entitled to take the glebe, and upon such erection to collate through the governor a parson to the benefice.

A voluntary society of Episcopalians within a town, unauthorized by the Crown, could not entitle themselves to the glebe. Where no such church was duly erected by the town, the glebe remained as an haereditas jacens, and the state which succeeded to the rights of the Crown might, with the assent of the town, alien or encumber it or might erect an Episcopalian church therein, and collate, either directly or through the vote of the town indirectly, its parson, who would thereby become seized of the glebe jure ecclesiae, and be a corporation capable of transmitting the inheritance.

By the Revolution, the State of Vermont succeeded to all the rights of the Crown to the unappropriated as well as appropriated glebes.

By the statute of Vermont of 30 October, 1794, the respective towns became entitled to the property of the glebes therein situated.

A legislative grant cannot be repealed.

No Episcopal Church in Vermont can be entitled to the glebe unless it was duly erected by the Crown before the Revolution or by the state since.

This 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 upon the question whether judgment should be rendered for the plaintiff or for the defendants upon a verdict found, subject to the opinion of the Court upon the following case stated:

"In this cause it is agreed on the part of the plaintiffs that the lands demanded in the plaintiffs' declaration 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 Church of England as by law established, and that in the year 1802 there was in the Town of Pawlet a society of Episcopalians duly organized agreeably to the rules and regulations of that denomination of Christians heretofore commonly known and called by the name of the Church of England. That in the same year the said society contracted with the reverend Bethuel Chittenden, a regular ordained minister of the Episcopal Church, who then resided in Shelburn, in the County of Chittenden (but had not any settlement as a clerk or pastor therein) to preach to the said society in the Town of Pawlet at certain stated times and to receive the avails of the lands in question, and that the said Chittenden thereupon gave a lease of the said land to Daniel Clark and others, 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 to his said contract, and received the rents and profits of the said land until the year of our Lord Christ

Page 13 U. S. 293

1809, when the said Chittenden deceased, and that in 1809 the said society contracted with the Reverend Abraham Brownson, a regular ordained minister of the Episcopal Church residing in Manchester and officiating there a part of the time, to preach to the said society a certain share of the time and to receive the rents and profits of the said land, and that the said Brownson has regularly attended to his duty in the said church and administered ordinances in the same until September, 1811, about which time the said society regularly settled the Reverend Stephen Jewett, who now resides in the said Town of Pawlet and who from the time of his settlement is to receive all the temporalities of the said church. And it is further agreed by the said parties that the General Assembly of the State of Vermont, on 5 November, 1805, did grant to the several towns in this state, in which they respectively be (reference being had to the act of the general assembly aforesaid) all the lands granted by the King of Great Britain to the Episcopalian church by law established (reference being had to the charter of the Town of Pawlet aforesaid for the said grant of the King of Great Britain), and that the lands in the plaintiffs' declaration mentioned and described are part of the lands so granted by the King of Great Britain to the Episcopalian church."

The charter of Pawlet is dated 26 August, 1761, and purports to be a grant from the King, issued by Benning Wentworth, Governor of New Hampshire, and has these words:

"Know ye that we, of our special grace, . . . have, upon the conditions and reservations hereinafter made, given and granted, and by these presents for us, our heirs and successors, do give and grant in equal shares unto our loving subjects, inhabitants of our said Province of New Hampshire and our other governments and to 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 situate, lying, and being within our said Province of New Hampshire, containing by admeasurement 23,040 acres, which tract is to contain six miles square and no more, . . . and that the same be and hereby is incorporated into a township by the name of Pawlet, . . .

Page 13 U. S. 294

to have and to hold the tract of land as above expressed, together with all . . . to them and their respective heirs and assigns forever. . . ."

On the back of which grant were endorsed "the names of the grantees of Pawlet, viz., Jonathan Willard" and others, being in all 62, then follow these words:

"His Excellency Benning Wentworth, Esquire, a tract of land to contain five hundred acres as marked in the plan B.W., which is to be accounted two of the within shares -- one whole 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."

The Act of 5 November, 1805, is entitled

"An act directing the appropriation of the lands in this state, heretofore granted by the government of Great Britain to the Church of England as by law established."

"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 reservations, and as such became vested by the Revolution in the sovereignty of this state, therefore,"

"Sec. 1. Be it 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 government to the Church of England as by law established be and the same are hereby granted severally to the respective towns in which such lands lie and to their respective use and uses forever in manner following, to-wit: "

"It shall be the duty of the selectmen in the respective towns in the name and behalf, and at the expense, of such 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, reserving an annual rent therefor, which shall be paid into the treasury of such town and appropriated to"

Page 13 U. S. 295

the use of schools therein, and shall be applied in the same manner as monies arising from school lands are by law directed to he applied.

Page 13 U. S. 322

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