s.n., 182-?, 1820] Map. Pendleton's successor, St. George Tucker, was a leading figure in the rising generation of Virginian Republicans and had quietly signaled his approval of the Glebe Act in order to secure his election as a justice by the legislature.Footnote 72 Ideologically aligned with Jefferson and Madison, Tucker reached a radically different conclusion than Pendleton might have. Traditional accounts for the rise of the business corporation focus on the shift from special acts of incorporation to general incorporation statutes, but do not address the existence of common law corporations. The other chief objection to the 1784 law was that it allowed the Episcopal Church to retain the Glebes, churches, surplus money and other Things, which ought to have become the Property of the Publick.Footnote 54 Evangelicals sent petition after petition calling for the repeal of the 1784 Incorporation Act and insisting that parish property belonged to the entire Virginian public whose taxes had funded its purchase. Without parsons, vestries, or churchwardens, there were no corporations to claim the property before the Revolution. Newmeyer may have been referencing this ambiguous line about the Court's prior decisions. Virginia Constitution (1851), article 32. The issue of the general assessment was postponed until the following year. 55. Christ Church in Alexandria, Virginia in 2020. 104. It was a different story in Vermont where there had been no operational Anglican Church before the Revolution. The Court's ruling in Terrett set a significant precedent for the standing of all private corporations vis-a-vis state legislatures and laid the groundwork for the Court's decision in Dartmouth College. See Mays, Edmund Pendleton, 33745; Mays, The Letters and Papers of Edmund Pendleton, 17341803 (Charlottesville: Published for the Virginia Historical Society by the University Press of Virginia, 1967), 2:63742. The battle over the glebes swiftly moved from Virginia's legislature to the courts as Episcopalians around the state sought injunctions to avert the seizure of their property. 70. Webproceedings of the trustees of Dartmouth College from the establishment of the corporation until the 7th day of October, 1816; the original charter or letters-patent, constituting the 8. 114. Although scholars have convincingly argued that the emergence of statutory frameworks for business and religious corporations were distinct processes, litigation during religious disestablishment ultimately enshrined the rights of business corporations and made them powerful vehicles for commercial growth.Footnote 117 Dartmouth College crystallized the implicit logic of Terrett by holding that all charters were contracts and thus offered robust protections to all private corporations. 5.0 (1 review) Term. 81. Virginia's Anglican establishment faced significant backlash during and after the Revolution. Historians of religion, on the other hand, discuss Turpin and Terrett in the context of Virginia's disestablishment without examining the cases impact on the history of corporations.Footnote 11 Studies by Mark McGarvie, Michael McConnell, and Sarah Barringer Gordon connect these fields by highlighting the intersection of state disestablishment and constitutional law, but even their studies do not resolve all of the confusion about Terrett.Footnote 12. See Naomi R. Lamoreaux and William J. Novak, Corporations and American Democracy: An Introduction, in Corporations and American Democracy, ed. After the repeal of the Incorporation Act, no other religious societies became incorporated in the state, and the legislature formally enacted a prohibition against religious incorporation in 1798.Footnote 64 In 1851, the commonwealth formally amended its Constitution to add this provision, which stood in place until 2002.Footnote 65 The hostility toward religious incorporation in Virginia was exceptional, which explains why the state's distinctive policies would become significant test cases for the rights of corporations. Story's discussion of colonial corporations in Terrett reveals one the most important links to Dartmouth College because he explicitly mentioned royal grants alongside customary corporations.Footnote 94. The Virginia Assembly received its first petition for incorporation from a nonconforming church in 1774 from the Peaks of Otter Presbyterian Church in Bedford County. The missing link between these cases is incorporation. The 1815 decision had already affirmed that the legislature could not modify or repeal acts creating private corporations. Eric Michael Mazur argues that Marshall relied on (but did not cite) Story's reasoning in Terrett and Pawlet in his decision in Trustees of Philadelphia Baptist Ass'n v. Hart's Executors (1819). 1, 44344, LVA. Buckley, Establishing Religious Freedom, 11920. WebHow did Dartmouth College v Woodward contribute to a greater sense of independence and nationhood? See Newmeyer, Supreme Court Justice Joseph Story: Statesman of the Old Republic (Chapel Hill: University of North Carolina Press, 1985), 13133. Madison, Notes on Charters of Incorporation, Founders Online. 82. Recent accounts of American corporate history rely on Davis's tallies, and therefore also leave out common law corporations. The Court became the final When Marshall wrote in Dartmouth College that almost all eleemosynary corporations, those which are created for the promotion of religion, of charity or education, are of the same character[t]he law of this case is the law of all, his words encompassed not only a small college in New Hampshire but also a contested church in the nation's capital. Although built on the same logical framework as Terrett, Dartmouth's holding explicitly embraced all private corporations in its holding. Virginia's highest court upheld these policies as lawful, but the US Supreme Court's rejected them as unconstitutional in Terret. 6. With this sweeping assessment, Marshall drew together the earlier decision in Terrett with Dartmouth College in protecting the rights of all corporations.Footnote 127. Melish, John, and Benjamin Tanner. This jurisdictional argument could have been invoked at any point in the ruling to throw out Fairfax County's claim to the glebe lands. In the colonial era, Fairfax Parish had stretched along the Virginian bank of the Potomac River near the bustling ports of Georgetown, Maryland and Alexandria, Virginia. 110. 56. [Philadelphia? See Society for Propagation of the Gospel v. Town of New Haven, 21 U.S. 464 (1823), 48182; and Trustees of Dartmouth College v. Woodward, 17 U.S. 518 (1819), 66466. Inhabitants of St. Asaph's Parish: Petition, Caroline County, December 4, 1786, Legislative Petitions Digital Collection, LVA. Dartmouth College v. Woodward was an 1819 Supreme Court case involving the honoring of a contract. One of the only previous citations to this document appears in Mary Sarah Bilder, James Madison, Law Student and Demi-Lawyer, Law and History Review 28 (2010): 411 n.116. 10 (Detroit: Gale: 2000), 12224; and William M. Wicek, Liberty under Law: The Supreme Court in American Life (Baltimore: The Johns Hopkins University Press, 1998), 4445. 89. 93. Marshall had so many connections to Virginia's disestablishment that it would have been impossible for the circumstances of Turpin and Terrett not to have shaped his thinking about Dartmouth College. The indefinite accumulation of property from the capacity of holding it in perpetuity would enable ecclesiastical corporations to swallow government, and he argued that the power of all corporations, ought to be limited in this respect.Footnote 88 Madison articulated a far-reaching vision of non-establishment at the national level by insisting that any form of religious incorporation not only entangled church and state but also threatened liberty.Footnote 89. Pawlet arose in the only other state that confiscated Anglican Church property, Vermont, where the legislature passed statutes in 1794 and 1805 empowering towns to seize glebe lands for schools.Footnote 115 Story wrote on behalf of the Court to uphold Vermont's laws. 35. However, dissolving a vestry did not destroy the corporation itself or interfere with its legal rights. Two areas of early American law clarify the relationship between Terrett and Dartmouth College: corporate law and the legal disestablishment of religion. Given the overwhelming evidence that Marshall agreed with the logic of Terrett, we are left to assume that Duvall alone dissented in Terrett. The Court may have offered an ideological defense of customary incorporation in Terrett, but Virginia's continued refusal to abide by the decision underscored the weakness of common law incorporation. James Madison, Notes on Charters of Incorporation, [January?] 125. The vestry of Fairfax Parish had purchased its glebe in 1770 from Daniel Jennings and his wife using money raised from parishioners.Footnote 108 Although the corporate existence of colonial parishes rested on common law, Story argued that the Revolution had in no way impaired the corporation's standing or interfered with the title to this property. 27. See Mays, Edmund Pendleton, 2:404n14; Albert J. Beveridge, The Life of John Marshall (Boston: Houghton Mifflin, 1919) 4:243; and Buckley, Thomas E., After Disestablishment: Thomas Jefferson's Wall of Separation in Antebellum Virginia, The Journal of Southern History 61 (1995): 450n13CrossRefGoogle Scholar. (Philadelphia: Church Historical Society, 194752); and John Nelson, A Blessed Company: Parishes, Parsons, and Parishioners in Anglican Virginia, 1690- 1776 (Chapel Hill: The University of North Carolina Press, 2001). Chamberlayne, ed., The Vestry Book of Saint Peter's, From 16821758 (Richmond, VA: The Library Board, Division of Purchase and Print, 1937), 99, 112, 13839, 253, 312. Terrett v. Taylor, 13 U.S. (9 Cranch) (1815), 52. Joseph Stancliffe Davis landmark history of American corporations briefly mentioned parishes before dismissing them as mere quasi-corporations rather than true corporations. What did Chief Justice Marshall, who had personally taken part in Virginia's disestablishment, make of Terrett? The legislature changed the school's corporate The Virginia Declaration of Rights, Section 16 and Section 4. hasContentIssue false, Religious Establishment and Incorporation, This is an Open Access article, distributed under the terms of the Creative Commons Attribution licence (, Copyright The Author(s), 2021. The famed orator maintained that Dartmouth College closely resembled a case from 4 years earlier, Terrett v. Taylor (1815). Recognizing the connections between Virginia's disestablishment and Dartmouth College gives scholars the context that Marshall obscured in his opinion and elucidates why Terrett anticipated Dartmouth College.Footnote 17. Dartmouth's former trustees refused to concede and sued in 1817 to challenge the legislation. View all Google Scholar citations Tucker relied on Dartmouth College's distinction between private and public corporations while flatly rejecting the rationale of Terrett, and allowed glebe confiscation to proceed. Both of his opinions relied on similar language, precedents, and examples. Virginia's refusal to recognize Terrett underscored the limited practical significance of the case. Thomas Buckley, Establishing Religious Freedom: Jefferson's Statute in Virginia (Charlottesville, VA: The University of Virginia Press, 2013), 12224; and H. Jefferson Powell, A Community Built on Words: The Constitution in History and Politics (Chicago: University of Chicago Press, 2005), 8595. For Story, Virginia's statutes first incorporating and then undoing incorporationand ultimately vesting parish property in the commonwealthwere utterly inconsistent with a great and fundamental principle of a republican government, the right of the citizens to the free enjoyment of their property.Footnote 100 Virginia's Glebe Act was not, therefore in our judgment, operative so far as to divest the Episcopal church of the property acquired, previous to the revolution, by purchase or by donation.Footnote 101. Turpin, Call 113 (1804), 113; 129; 139; 148. One exception is R. Kent Newmeyer, who called Justice Joseph Story's decision in Terrett pioneering. However, Newmeyer's brief summary of the case does not clarify its circumstances or its connection to Dartmouth. Rhys Isaac, The Transformation of Virginia, 17401790 (Chapel Hill: University of North Carolina Press, 1982); Arthur Lyon Cross, The Anglican Episcopate and the American Colonies (New York: Longmans, Green, and co., 1902); George MacLaren Brydon, Virginia's Mother Church, 2 vols. The dissolution of royal government had not affected the vested property of vestries or any corporate bodies. The vestry had won their case. Both disputes arose in the turmoil of post-Revolutionary disestablishment as state legislatures directly challenged the rights of colonial corporations. 58. Marshall's involvement in Virginia's disestablishment offers a compelling answer to this puzzle and reveals the relevance of Terrett and its backstory to Dartmouth College. Title to the glebe lands remained vested in the crown and passed to the new sovereign, the state of Vermont, at the outbreak of the Revolution. Marshall's decision in Dartmouth College endorsed many of the same principles as Story's opinion had in Terrett. 62. 103 (1801). She also thanks Susan Juster, Bill Novak, Hunter Harris, Katharine Waggoner Karchner, Owen Masters, and Kristina Petersen for their advice, as well as David Tanenhaus, Laurie Wood, and Justin Simard for their comments on an early version of this piece at the Student Research Colloquium at the American Society for Legal History in 2018. (Q006) Southern slave states sought to protect their national political interests by. See Fincastle Presbyterian Congregation: Petition, Botetourt County, December 19, 1805, Legislative Petitions Digital Collection, LVA. This decision not only allowed the legislature to expropriate the glebes but also asserted that doing so reversed earlier unconstitutional grants of property. Did a state legislature have the right to seize the property of the parish? Second, it is essential to consider these cases within the broader context of religious disestablishment. Virginia did not heed the decision and continued to seize glebe lands. In 1798, Virginia repealed portions of six acts from the 1770s and 1780s that had allowed the Episcopal Church to retain parochial property, which the legislature now deemed inconsistent with the principles of the constitution, and of religious freedom, and manifestly tend[ed] to the re-establishment of a national church.Footnote 67 Although the 1798 law laid the philosophical groundwork for the legislature to claim all parish property, it was not until 1802 that the legislature authorized a specific plan for confiscation when it passed the Glebe Act. & G. Bartow, 1823), 13 vols. Evangelicals continued to press the legislature to seize Episcopal parish property. Render date: 2023-05-01T16:19:54.698Z Incorporation remained front and center in Virginia's debates over disestablishment precisely because it had been a closely guarded privilege of the established church. First, they weighed whether some of Virginia's oldest and most familiar customary corporationsparish vestries, churchwardens, and ministershad withstood a republican revolution and religious reformation. 123. Va. 2002) (The portion of 14(20) of Article IV of the Constitution of Virginia which reads, The General Assembly shall not grant a charter of incorporation to any church or religious denomination, violates Plaintiffs' First Amendment rights to the free exercise of their religion made applicable to the States by the Fourteenth Amendment). The legislature changed the school's corporate charter by transferring the control of trustee appointments to the governor. Tucker made two arguments to justify the dissolution of private corporations. For more on Tucker's connection to the case, see Buckley, Establishing Religious Freedom, 11622. The younger Tucker upheld his father's decision in Turpin and declared that the question in this case is not touched by the constitution of the United Statesthis is a subject over which the supreme court of the United States have no manner of jurisdiction.Footnote 128 But Henry St. George Tucker's Selden opinion did cite Dartmouth College to argue that Virginia's church had been fundamentally a public institution and therefore under complete legislative control.Footnote 129 In a stroke of irony, the distinction between private and public corporations that Terrett had helped forge in American law was now being wielded against parishes. Terrett v. Taylor, 13 U.S. (9 Cranch) (1815), 50. See Patrick J. Dignan, History of the Legal Incorporation of Catholic Church Property in the United States, 17841932 (New York, P. J. Kenedy & Sons, 1935), 2730; Cross, The Anglican Episcopate, 181; Susanna Linsley, The American Reformation: The Politics of Religious Liberty, Charleston and New York 17701830 (PhD diss., The University of Michigan, 2012), 3750. The legislative program of disestablishment began in 1776 with the passage of the Virginia Declaration of Rights, which guaranteed free exercise. Several sources state either that the decision was unanimous or specifically note that Marshall joined Story's opinion. Defenders of Virginia's Anglican establishment argued that the church promoted publick Peace by enforcing Religion and Morality.Footnote 25 Political rights were tied to spiritual conformity; although religious dissenters might privately hold contrary beliefs, outwardly it was the duty of every good Member of Society to submit[for] the good of the whole.. 1 / 15. Tucker's decision in Turpin had trounced private property rights and threatened the foundation of all corporations.Footnote 92, Justice Story rejected the view that the Revolution had made the church's property into a public asset. After Madison's veto, the Fairfax County, VA Overseers of the Poor moved forward with the seizure of Christ Church's property. 45. For more on Story's legal career, see Newmeyer, Supreme Court Justice Joseph Story. Newmeyer, Supreme Court Justice Joseph Story, 13233. The first judicial ruling that declared a federal law to be unconstitutional came from: Marbury v Madison. If the legislature deemed a prior grant merely impolitic, it retained the power to dissolve a corporation and seize its property.Footnote 80 Whereas Marshall had required unconstitutionality as grounds for revoking incorporation, Tucker set the bar far lower. Eckenrode, Separation of Church and State in Virginia, 121. Trustees of Dartmouth College v. Woodward, 17 U.S. 518 (1819), 66465. Photograph by the author. In contrast, Dartmouth afforded power and protection to all chartered corporations. Other works that emphasize the three types of corporations (municipal, religious, and business) leave out the distinctions between statutory and customary corporations. Had these two policies been carried into effect, Virginia's disestablishment would have resembled events in other states. Turpin and Terrett were not only connected by the similarity of their circumstances but also by the presence of Justice Bushrod Washington on the Supreme Court. Dartmouth College, like Terrett, distinguished between public and private corporations and insisted on the insulation of private corporations from the legislature.Footnote 125 Marshall declared in Dartmouth that all contracts and rights respecting property, remained unchanged by the revolution, which echoed Story's statement in Terrett that the dissolution of the regal government no more destroyed the right to possess or enjoy this property than it did the right of any other corporation or individual to his or its own property.Footnote 126 The significant difference between these statements, of course, lay in the Marshall's use of the word contract. Marshall expressly grounded his decision in the Contract Clause by framing all corporate charters as contracts. Trustees of Dartmouth College v. Woodward, 17 U.S. 518 (1819), 651; and Terrett v. Taylor, 13 U.S. (9 Cranch) (1815), 50. Newmeyer characterizes Terrett as a significant development in the publicprivate distinction in American law. Two of Virginia's most idiosyncratic disestablishmentarian policiesits revocation and prohibition of religious incorporation and its seizure of church propertyset the state on a collision course to confront parishes over their corporate rights. Definition. More than 30 years before Dartmouth College, the turmoil of Virginia's disestablishment prompted Marshall to consider the vested property of corporations and to answer the question of whether a legislature could repeal incorporation.Footnote 62. Marshall voiced a commitment to protecting vested rights and preventing legislative intrusion by voting to support the resolution against glebe confiscation in 1789. Perhaps the Anglican parish's most visible exercise of corporate power was its acquisition of valuable property. Monarchy, aristocracy, religious establishment, entail, primogeniture, and a host of cornerstones of pre-Revolutionary law fell victim to this movement. The federal court was a last resort for the Alexandria vestry, and they brought the suit only after Madison's veto and the Fairfax Overseers attempt to seize the glebe. (Oxford: Clarendon Press, 1770), I:472. 22, 105. s.n., 182-?, 1820] Map. Finally, these cases clarify why Dartmouth College set such an important precedent in the Early Republic. 119. 116. Another clue to Marshall's views can be found in a closely related case, Town of Pawlet v. Clark (1815), which the Court heard just a few weeks after Terrett. 65. This statute asserted that all property formerly belonging to the Church, of every description, devolved on the good people of this commonwealth, on the dissolution of the British government here. Sixteen years after declaring the Episcopal Church independent from the state and preserving its property, the assembly stripped the denomination of its glebe property.Footnote 68.