See Naomi R. Lamoreaux and William J. Novak, Corporations and American Democracy: An Introduction, in Corporations and American Democracy, ed. Chief Justice Marshall had personally taken part in these debates while serving as a delegate in Virginia's legislature in the 1780s. See Priest, Claire, The End of Entail: Information, Institutions, and Slavery in The American Revolutionary Period, Law and History Review 33 (2015): 277319CrossRefGoogle Scholar; and Holly Brewer, Entailing Aristocracy in Colonial Virginia: Ancient Feudal Restraints and Revolutionary Reform, William and Mary Quarterly, 3rd ser., 54 (1997): 30746. These radical policies set Virginia apart from other states and made these disputes a critical litmus test for the rights of all corporations. 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. The expansion of religious freedom was not just an ideological struggle; it was also a legal quandary for newly independent states. Clergy of the Protestant Episcopal Church: Petition, June 4, 1784, Legislative Petitions Digital Collection, LVA. Newmeyer stated that Marshall cited Terrett in Dartmouth College, but does not elaborate any further. 62. Published by Cambridge University Press on behalf of the American Society for Legal History, https://doi.org/10.1017/S0738248020000486, The Personification of the Business Corporation in American Law, Creating Roles for Religion and Philanthropy in a Secular Nation: The Dartmouth College Case and the Design of Civil Society in the Early Republic, The Marshall Court and Property Rights: A Reappraisal, The Supreme Court's Earliest Church-State Cases: Windows on Religious-Cultural-Political Conflict in the Early Republic, The End of Entail: Information, Institutions, and Slavery in The American Revolutionary Period, The Virginia Magazine of History and Biography, After Disestablishment: Thomas Jefferson's Wall of Separation in Antebellum Virginia, The Constitution in the Supreme Court: The First Hundred Years, 17891888, The Opinion of Chancellor Tucker in the Case of Selden and Others against the Overseers of the Poor of Loudoun and Others. 33. In order to dismiss any constitutional basis for Virginia's revocation of incorporation, he had to argue that nothing in the acts incorporating the church and confirming its property infringed the right to free exercise or constituted an established religion, Story upbraided Virginia's disestablishmentarian laws for treading upon the principles of natural justice, upon the fundamental laws of every free government, upon the spirit and the letter of the constitution of the United States, and upon the decisions of most respectable judicial tribunals.Footnote 105 Story was certainly vague in Terrett about which clause of the Constitution Virginia's laws violated, and scholars have often suggested that natural law was the true rationale for his decision.Footnote 106 But in his Commentaries on the Constitution, Story later included Terrett in his discussion of the Contract Clause and Article VI, Section 1.Footnote 107 Once the vestry is properly regarded as a pre-Revolutionary corporation, the decision's basis in the Constitution comes into clearer focus, as does its close connections in Dartmouth College. Trustees of Dartmouth College v. Woodward, 17 U.S. 518 (1819), 64546. 39. 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 Glebe Act of 1802 would stand.Footnote 81 Within weeks, counties began confiscating parish lands across the state. The corporate rights of parishes were utterly familiar in the colonial Chesapeake, and the legacy of customary incorporation informed legislative debates and litigation in the Early Republic. The state had vested an indefeasible and irrevocable title to the church to all parish property in 1776.Footnote 96 Then, it expressly conferred incorporation to the minister and vestry, and, in case of a vacancy, the vestry of each parish respectively and their successors forever and affirmed their title to all the property of the late Episcopal church when it chartered the Episcopal Church.Footnote 97 The legislature retained some power over public corporations such as a town, city, or the parish of the established church but only abuse could jeopardize the rights of a private corporation and then only after a judicial judgment.Footnote 98 Story staked out a significant distinction between public and private corporations by insulating private corporations from legislative intrusion.Footnote 99 Once the state had conferred incorporation on the Episcopal Church in 1784, parishes were undoubtedly private corporations and beyond the reach of the legislature. Daniel J. Hulsebosch and R. B. Bernstein (New York: New York University Press, 2013), 1348. More than any other line in the document, Marshall's final observation revealed that this discussion was not abstract, but rather concerned the 1784 Act of Incorporation. Both disputes arose in the turmoil of post-Revolutionary disestablishment as state legislatures directly challenged the rights of colonial corporations. Bushrod's Washington's 1797 opinion about the glebe lands is quoted in Mays, Edmund Pendleton, 2:404n14. 124. See McConnell, The Supreme Court's Earliest Church-State Cases, 15; and From James Madison to the House of Representatives, 21 February 1811, Founders Online. The controversy over Virginia's confiscation of the glebes landed before the Supreme Court in the case of Terrett v. Taylor (1815). Dartmouth College v. Woodward Other leading studies of early American corporations that do not discuss common law incorporation include Andrew M. Schocket, Founding Corporate Power in Early National Philadelphia (DeKalb, IL: Northern Illinois University Press, 2007); Jonathan Levy, Freaks of Fortunes (Cambridge, MA: Harvard University Press, 2012); Sharon Ann Murphy, Other People's Money: How Banking Worked in the Early American Republic (Baltimore: Johns Hopkins University Press, 2017); and Pauline Maier, The Revolutionary Origins of the American Corporation, William and Mary Quarterly, 3d ser., 50 (1993): 5184. From Disestablishment to Dartmouth College v. Woodward: How Dartmouth College v. Woodward (1819) has long been hailed as a landmark Supreme Court decision and a significant step in the rise of the American commercial economy. District of Columbia. Putnam's Sons, 1910), 1:77. For details of the purchase, see Nan Netherton, Donald Sweig, Janice Artemel, Patricia Hickin, and Patrick Reed, Fairfax County, Virginia: A History (Fairfax, VA: Fairfax County Board of Supervisors, 1978), 71. Washington cited the Terrett decision in his opinions in Trustees of Dartmouth College v. Woodward (1819) and Society for Propagation of the Gospel v. Town of New Haven (1823). 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. 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. View all Google Scholar citations 101. James Madison and John Marshall, both members of the House of Delegates, voted in favor of the law, which reaffirmed parishes claims to their pre-Revolutionary property and recognized the formerly established church as a newly reorganized, private corporation.Footnote 48 The legislature tabled general incorporation and postponed voting on a general assessment until the following year.Footnote 49, Critics initially attacked the specifics of the 1784 Incorporation Act without raising fundamental objections to religious incorporation. The separation of church from state raised difficult questions about how to remove the legal advantages of the former religious establishment, including customary incorporation, and whether it was permissible to strip private corporations of their charters and property. Although Story never mentioned Turpin v. Lockett, his opinion systematically excoriated its rationale. But what was the fate of the many laws concerning the legal status and property of the Episcopal Church after independence? John Marshall opposed these policies while serving as a delegate in Virginia's legislature, and his views on these issues prefigured his opinion in Dartmouth College. Blackstone, Commentaries on the Laws of England, 4 vols. Instead, Story saw this case as an opportunity to articulate the power of private corporations and therefore chose not to address the jurisdictional question until he had laid out a detailed critique of Virginia's disestablishmentarian program. Monarchy, aristocracy, religious establishment, entail, primogeniture, and a host of cornerstones of pre-Revolutionary law fell victim to this movement. Dartmouth's former trustees refused to concede and sued in 1817 to challenge the legislation. The legislative program of disestablishment began in 1776 with the passage of the Virginia Declaration of Rights, which guaranteed free exercise. Woodward opinion advanced a principled originalism. 19 July 2021. On Marshall's legal career, see G. Edward White, The Marshall Court; R. Kent Newmeyer, John Marshall and the Heroic Age of the Supreme Court (Baton Rouge: Louisiana State University Press, 2001); Jean Edward Smith, John Marshall: Definer of a Nation (New York: Henry Holt & Co, 1996); and Charles F. Hobson, The Great Chief Justice: John Marshall and the Rule of Law (Lawrence: The University of Kansas Press, 1996). Currie discusses Terrett as one of the earliest expositions on the Establishment Clause. Turpin v. Locket, 6 Call 113 (1804). 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. https://founders.archives.gov/documents/Madison/03-03-02-0233 (accessed November 24, 2020). Chapter 9: Nationalism and Sectionalism Virginia Declaration of Rights, Section 1. This decision offered a glimpse of an alternate legal landscape where American corporations existed as fundamentally communal institutions at the discretion of the legislature and charters were negotiable and revocable. 49. Rethinking the Dartmouth College Case in American Political Marshall the young legislator voiced a firm commitment to the vested rights of corporations and the irrevocability of charters decades before he would confront these issues from the bench. However, President James Madison vetoed the resulting Act of Incorporation in 1811. Tucker's opinion had distinguished between the property rights of private persons and corporations. Arguing the Dartmouth College Case, 200 Years On | Dartmouth Philip Hamburger, Separation of Church and State (Cambridge, MA: Harvard University Press, 2009), 182n66. Since independence, the Virginia legislature had guaranteed the Episcopal Church its property in five separate statutes and formally incorporated the church in 1784.Footnote 95 With these acts, the question of whether or not the church's incorporation had survived the Revolution no longer mattered. From James Madison to the House of Representatives, 21 February 1811, Founders Online, National Archives. 84. 54. 8. Sarah Barringer Gordon, The African Supplement: Religion, Race, and Corporate Law in Early National America, William and Mary Quarterly, 3d ser., 72 (2015): 385422; and Amanda Porterfield, Corporate Spirit: Religion and the Rise of the Modern Corporation (New York: Oxford University Press, 2018). Turpin, Call 113 (1804), 113; 129; 139; 148. For example, in Augusta County, the Presbyterian Congregation of Tinkling Spring vested lands and its church buildings in a number of individuals named as trustees on its deed, but these individuals lacked any standing in law to act on behalf of the church. 23. (hereafter Hening), 2:17172; 1:399400; 3:151. He wrote that in Terrett and Dartmouth College, it is most obvious, that the effect of [the states'] laws is to abolish the old corporation, and to create a new one in its stead. He asked rhetorically, In what respects do [these cases] differ? None at all, he concluded. For example, in 1751, the vestry of St. Peter's Parish in New Kent County ordered that all persons indebted to the Parish do account with the Church Wardens and Pay to their Hands the Several Sums due from them, and in failure of Payment the church wardens are required to bring suit for the recovery of the same.Footnote 33 Parishes could extend credit securely because they could recover outstanding debts in court. At this point, Christ Church's vestry sued in equity to prevent the sale of its property. https://creativecommons.org/licenses/by/4.0/, https://founders.archives.gov/documents/Madison/01-08-02-0043, https://avalon.law.yale.edu/18th_century/virginia.asp, https://founders.archives.gov/documents/Madison/03-03-02-0233. Phillip Bruce's work offers the only discussion of the corporate power of Virginia's parishes. 1, 44344, LVA. For more on Duvall, see White, The Marshall Court, 32127. The timing is particularly striking when compared with other Anglican colonies. 105. For Lynnhaven Parish in Princess Anne, see Princess Anne County, Deed Book 8, 532; Deed Book 9, 91; Deed Book 9, 103; Deed Book 9, 343; Deed Book 9, 343; Deed Book 14, 42, LVA. None of these leading studies consider how common law bolstered the Church of England. 74. s.n., 182-?, 1820] Map. 96. Several sources state either that the decision was unanimous or specifically note that Marshall joined Story's opinion. Ibid. James Madison, Notes on Charters of Incorporation, [January?] 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. Currie, The Constitution in the Supreme Court, 14041. Trustees of Dartmouth College v. Woodward 17 U.S. 518 1. None of the leading studies of colonial Anglicanism mention the corporate status of parishes under common law. The fact that the Virginia legislature received its first petition for incorporation at the very end of the Colonial Era shows just how effectively Virginia's laws had dissuaded dissenters from settling in the colony or seeking legal rights. The question of which parochial body held title to parish glebes would become a central issue in disestablishment, and I will return to these properties later on in this story. Newmeyer, Supreme Court Justice Joseph Story, 132. See Newmeyer, Supreme Court Justice Joseph Story, 132. 31 January 1820, Founders Online. Terrett v. Taylor, 13 U.S. (9 Cranch) (1815), 50. Eric Hilt, Early American Corporations and the State, in Corporations and American Democracy, 4042, 48, 400 n.14. Webchapter 9 history review. Eckenrode, Separation of Church and State in Virginia: A Study in the Development of the Revolution (Richmond: Virginia State Library, 1910), 120; Buckley, Church and State in Revolutionary Virginia, 168. https://www.loc.gov/item/91686243/. Virginia's Glebe Act exhibited an embarrassing disregard for the rights and property of the Episcopal Church. Dartmouth College v. Woodward is taken to be the seminal case in the rise of the corporation. 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. 83. Although Randolph is simply called Mr. For example, in 1772, the assembly disbanded the vestries in St. John's Parish in King William County and St. Martin Parish in Hanover and Louisa Counties, but the parishes property and rights remained unimpaired.Footnote 29 Virginia's parishes clearly possessed the continuity of life that has long been understood as an essential feature of a corporation. In May of 1784, the United Clergy of the Presbyterian Church sent a memorial to the assembly protesting that the episcopal church is actually incorporated, and known in law as a body, so that it can receive and possess property for ecclesiastical purposes, without trouble or risk in securing it, while other Christian communities are obliged to trust to the precarious fidelity of trustees chosen for the purpose.Footnote 45 Virginia's Presbyterian clergymen argued that customary incorporation still bestowed the Episcopal Church with substantial power , and therefore they sought an act of incorporation for their church. After Madison's veto, the Fairfax County, VA Overseers of the Poor moved forward with the seizure of Christ Church's property. 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 The Court held that the Revolution had not affected the corporate standing of the parish and affirmed that incorporation, once granted, could not simply be revoked by the legislature. Virginia's Constitution prohibited a religious establishment which should have exclusive rights and prerogatives, or compel the citizens to worship under a stipulated form or discipline, or to pay taxes to those whose creed they could not conscientiously believe but the free exercise of religion cannot be justly deemed to be restrained by aiding with equal attention the votaries of every sect.Footnote 104 Story's opinion highlighted that Virginia's rejection of any form of religious incorporation diverged sharply from other states, where general statutes of incorporation for religious societies were common. 56. https://avalon.law.yale.edu/18th_century/virginia.asp (accessed October 12, 2020); and Madison, Notes on Charters of Incorporation, Founders Online. This article clarifies the precise connection between two early national Supreme Court decisions, the little-known Terrett v. Taylor (1815) and the landmark Dartmouth College v. Woodward (1819). 89. Beveridge, The Life of John Marshall, 1:52n3. Terrett v. Taylor, 13 U.S. (9 Cranch) (1815), 43, 5052. George Webb, The Office and Authority of a Justice of the Peace (Williamsburg: Printed by William Parks, 1736), 71. Christ Church stood in the town of Alexandria at the southernmost point of the federal district, and its glebe lands lay to the northwest in the county. Trustees of Dartmouth College v. Woodward | Oyez

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