Justice Story attacked Virginia's state laws at great length but this narrower jurisdictional holding offered Virginia some room to sidestep the ruling. 30. Close this message to accept cookies or find out how to manage your cookie settings. 114. Churchwardens wrote contracts for every project that the parish undertook: digging wells, clearing land, or building churches.Footnote 30 The corporate status of churchwardens was particularly important when executing long-term contracts; as individual churchwardens came and went, their contracts remained enforceable. Virginia's highest court upheld these policies as lawful, but the US Supreme Court's rejected them as unconstitutional in Terret. WebDartmouth College was established under a charter granted by the provincial government; but a better constitution for a college, or one more adapted to the condition of things 35. Virginia's refusal to recognize Terrett underscored the limited practical significance of the case. 97. District of Columbia. The Supreme Court upheld the sanctity of the original charter of the As state legislatures, courts, and ordinary people answered these queries, they grappled with and ultimately set forth the rights of private corporations in the new nation. Tucker's Turpin opinion then dealt quickly with the question that would occupy the Court's attention in Dartmouth College: did the legislature have the authority to dissolve a private corporation? 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. Total loading time: 0 39. Story's reasoning in the two cases was identical; namely, that the state could not take vested property from corporate bodies. Mays, Edmund Pendleton, 2:404n14; and Trustees of Dartmouth College v. Woodward, 17 U.S. 518 (1819), 664. Journals of the House of Burgesses of Virginia, 17731776 (hereafter JHBV), May 17, 1774, 103. https://avalon.law.yale.edu/18th_century/virginia.asp (accessed October 12, 2020); and Madison, Notes on Charters of Incorporation, Founders Online. Terrett v. Taylor, 13 U.S. (9 Cranch) (1815), 50. The arguments underlying the Dartmouth College decision reflected and developed these points into the landmark statement on corporate rights that it has become. 103. Amidst the turmoil of Virginia's disestablishment, he opposed repealing incorporation and confiscating church property. Recent accounts of American corporate history rely on Davis's tallies, and therefore also leave out common law corporations. Trustees of Dartmouth College v. Woodward, 17 U.S. 518 (1819), 66465. Dartmouth College v. Woodward was an 1819 Supreme Court case involving the honoring of a contract. With this sweeping assessment, Marshall drew together the earlier decision in Terrett with Dartmouth College in protecting the rights of all corporations.Footnote 127. But looking at this series of cases togetherstarting with Turpin, moving next to Terrett and then considering Dartmouth Collegeoffers several important insights to scholars. s.n., 182-?, 1820] Map. [Philadelphia? White, The Marshall Court, 609, 611; Sylvia Snowiss, Judicial Review and the Law of the Constitution (New Haven, CT: Yale University Press, 1990), 136; and Currie, The Constitution in the Supreme Court, 141. 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). 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. 99. For a discussion of Virginia's colonial statutes that supported the Anglican establishment and penalized religious dissent, see John Nelson, A Blessed Company: Parishes, Parsons, and Parishioners in Anglican Virginia, 16901776 (Chapel Hill: The University of North Carolina Press, 2001); and Isaac, The Transformation of Virginia. 89. 7. Davis, Essays in the Earlier History of Corporations (Cambridge, MA: Harvard University Press, 1917), 6, 7980. But the opinion of the Court, authored by Chief Justice Marshall, did not cite Terrett. 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. 118. He asked rhetorically whether the objects of religion, charity, and education were of so little estimation in the United States, that contracts for their benefit might not be respected as those of other private corporations. Classic accounts of church and state in Virginia detail the legislation that enforced Anglican conformity, penalized religious dissent, and knit together religion and government but make no mention of how common law conferred significant power to Anglican parishes through incorporation.Footnote 26 A wide range of sources, including legal treatises, colonial legislation, and the records of lawsuits, contracts, and deeds, reveal that Virginia's vestries and churchwardens were acquisitive and litigious corporate bodies. 104. 117. 108. 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. Terrett v. Taylor, 13 U.S. (9 Cranch) (1815), 52. We use cookies to distinguish you from other users and to provide you with a better experience on our websites. Parishes amassed their wealth using an annual tax and through private donations.Footnote 34 The colonial parish held wealth in many forms: taxes collected in pounds of tobacco, acres of glebe land, and the bodies and labor of enslaved people. See Fincastle Presbyterian Congregation: Petition, Botetourt County, December 19, 1805, Legislative Petitions Digital Collection, LVA. Tucker's decision began with a review of common law and colonial statutes to determine the corporate standing of the vestry. T. Ritchie, ed., The Revised Code of the Laws of Virginia (Richmond: Commonwealth of Virginia, 1819) (hereafter Revised Code), 79. 115. Newmeyer may have been referencing this ambiguous line about the Court's prior decisions. 85. For more on the importance of Dartmouth College, see Mark, Gregory A., The Personification of the Business Corporation in American Law, University of Chicago Law Review 54 (1987): 144183CrossRefGoogle Scholar; McGarvie, Mark D., Creating Roles for Religion and Philanthropy in a Secular Nation: The Dartmouth College Case and the Design of Civil Society in the Early Republic, Journal of College and University Law 25 (1999): 52768Google Scholar; Francis N. Stites, Private Interest and Public Gain: The Dartmouth College Case, 1819 (Amherst: University of Massachusetts Press, 1971); and Rodney A. Smolla, The Constitution Goes to College: Five Constitutional Ideas that Have Shaped the American University (New York: New York University Press, 2011). However, President James Madison vetoed the resulting Act of Incorporation in 1811. Footnote 6, Despite the importance that Webster afforded to the case while arguing Dartmouth, Terrett remains little known today.Footnote 7 The existing literature on Terrett primarily falls into two camps. The famed orator maintained that Dartmouth College closely resembled a case from 4 years earlier, Terrett v. Taylor (1815). WebIn 1816, the New Hampshire legislature attempted to change Dartmouth College-- a privately funded institution--into a state university. For the text of the incorporating act, see Hening, 9:53237. James Madison, Detatched Memoranda, ca. The first judicial ruling that declared a federal law to be unconstitutional came from: Marbury v Madison. The rights secured under common law had relied on the king's consent and therefore had not survived the political revolution. For some examples, see Hening, 7:31415; 9:240; 7:234; 8:365; 9:239. Like Turpin, Terrett, and Pawlet, the dispute at the center of Dartmouth College emerged from an acrimonious disestablishmentarian dispute.Footnote 118 A theological rift between the college's more liberal president and its evangelical trustees became politicized when the newly elected legislature modified the college's charter in 1816. See examples of five parish lawsuits in the New Kent County Court listed in C.G. Virginia's seizure of the glebes was held unconstitutional because the legislation siezed vested property from longstanding corporate bodies. Churchwardens by the Common Law, are made a Corporation to take Care of the Goods of the Church.They are a corporation, only as to Moveables, viz to take Goods, but not Lands, for the Use of the Church.Footnote 23 The vestry purchased and maintained glebes, which were farms of at least 200 acres, to the use of the minister of such parish, for the Time being and his successors for ever.Footnote 24 The minister was a corporation sole, or a persona ecclesia, who had rights to the glebe during his tenure. It supported capitalism, where privately owned companies can compete in a free market (without government controls) Although built on the same logical framework as Terrett, Dartmouth's holding explicitly embraced all private corporations in its holding. She thanks the anonymous reviewers and Editor-in-Chief Gautham Rao for their valuable suggestions during the revision process. Library of Congress, Geography and Map Division. In both instances, the contract has been altered, without the assent of the corporation, its obligations have been impaired.Footnote 120 Washington, who had once called Virginia's glebe confiscation a humiliation, drew together the Virginia Glebe Act and the actions of the New Hampshire legislature by labelling both as laws that were repugnant to the Constitution in his opinion Dartmouth College.Footnote 121. For more on the legal persecution of dissenters and the growth of evangelical community, see Isaac, The Transformation of Virginia; Monica Najar, Evangelizing the South: A Social History of Church and State in Early America (New York: Oxford University Press, 2008); and Jewel Spangler, Virginians Reborn: Anglican Monopoly, Evangelical Dissent, and the Rise of the Baptists in the Late Eighteenth Century (Charlottesville: University of Virginia Press, 2008). Although Randolph is simply called Mr. Marshall had invoked the irrevocable nature of charters as far back as 1786 when he, Randolph, and Madison discussed under what circumstances the legislature could permissibly strip the Episcopal Church of its incorporation. 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. 19 July 2021. In the 1820s, Virginia's vestries mounted another challenge to the 1802 Glebe Act citing Terrett. Town of Pawlet v. Clark, 13 U.S. 292 (1815). Currie discusses Terrett as one of the earliest expositions on the Establishment Clause. https://founders.archives.gov/documents/Madison/03-03-02-0233 (accessed November 24, 2020). 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. 59. Click the card to flip . 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. An Address to the Anabaptists Preachers Imprisoned in Caroline County, Virginia Gazette (Williamsburg: Prudie & Dixon), February 20, 1772, 12. The legislature changed the school's corporate Finally, these cases clarify why Dartmouth College set such an important precedent in the Early Republic. 126. Whereas Terrett specifically focused on the status of common law corporations and acts of incorporation, the 1815 decision had suggested that royal grants had likewise survived the Revolution. Parishes organized Anglican life on both sides of the Atlantic, and these ecclesiastical bodies acted as an essential part of local government in colonial Virginia. 19. Trustees of Dartmouth College v. Woodward, 17 U.S. 518 (1819), 591. 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. In 1817, the college sued to prevent the state of New Hampshire from modifying its colonial charter and turning the school into a public university. Trustees of Dartmouth College v. Woodward, 17 U.S. 518 (1819), 59192; Terrett v. Taylor, 13 U.S. (9 Cranch) (1815), 52. 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. Evangelicals continued to press the legislature to seize Episcopal parish property. 116. 22, 105. Ely, Jr., 1050; William M. Wicek, The Lost World of Classical Legal Thought: Law and Ideology in America, 18861937 (New York: Oxford University Press, 1998), 34; Currie, The Constitution in the Supreme Court, 13841; and Stites, Private Interest and Public Gain, 137 n.49. Terrett v. Taylor, 13 U.S. (9 Cranch) (1815), 43, 47. See Journal of the House of Delegates of the Commonwealth of Virginia; Begun and Held in the City of Richmond, in the County of Henrico on Monday, The Eighteenth Day of October, in the Year of Our Lord One Thousand Seven Hundred and Eighty-Four, 27, 82. 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.. See White, The Marshall Court, 60811; Ely Jr., The Marshall Court and Property Rights: A Reappraisal, 104950; McConnell, The Supreme Court's Earliest Church-State Cases, 1518; Benjamin F. Wright, Jr., The Contract Clause of the Constitution (Cambridge, MA: Harvard University Press, 1938), 38; and Currie, The Constitution in the Supreme Court, 13841. Inhabitants of St. Asaph's Parish: Petition, Caroline County, December 4, 1786, Legislative Petitions Digital Collection, LVA. 11. Beveridge, The Life of John Marshall, 1:52n3. Figure 2. R, the context of the document and Marshall and Randolph's legal partnership make Randolph's identity almost certain. In Turpin, Virginia's highest court had authorized the legislature to disregard customary incorporation, revoke a statute of incorporation, and confiscate parish 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. The state had no claim on the property of the former established church, which was still vested in its parishes. 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. District of Columbia. However, dissolving a vestry did not destroy the corporation itself or interfere with its legal rights. WebIn Dartmouth v. Woodward (1819) the Court promoted business growth by denying states the right to alter or impair contracts unilaterally. Empowered by common law and affirmed in colonial statutes, parish vestries and churchwardens routinely exercised the unique rights of corporations. What did Chief Justice Marshall, who had personally taken part in Virginia's disestablishment, make of Terrett? Definition. 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. Tucker accepted the arguments made by evangelicals over the previous 15 years that the legislature had violated the provision for religious freedom and the prohibition against emoluments in Virginia's Declaration of Rights by preserving parish property and incorporating the Episcopal Church. Both disputes arose in the turmoil of post-Revolutionary disestablishment as state legislatures directly challenged the rights of colonial corporations. Numerous scholars have observed Marshall's penchant for excluding citations from his decisions. R. Kent Newmeyer states that Marshall cited Terrett in Dartmouth, although he does not provide this citation. 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. national authority. View all Google Scholar citations Newmeyer suggests that Dartmouth complete[d] the formulation of the public-private doctrine begun in Terrett. Newmeyer, Supreme Court Justice Joseph Story, 132. Terrett v. Taylor, 13 U.S. (9 Cranch) (1815), 50. Because incorporation was rare in the colonial Chesapeake, Anglican parishes were all the more powerful for holding this status. 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. 58. Turpin v. Locket, 6 Call 113 (1804). Perhaps it is not surprising that Terrett v. Taylor faded into obscurity. The dissolution of royal government had not affected the vested property of vestries or any corporate bodies. 40. It was a different story in Vermont where there had been no operational Anglican Church before the Revolution. Many states sought to level the playing field among denominations by passing general statutes of incorporation that allowed all religious societies to become incorporated.Footnote 42 Not so in Virginia, where the battles over incorporation would ultimately lead to a radical rejection of any form of religious incorporation. Terrett v. Taylor, 13 U.S. (9 Cranch) (1815), 55. 43. 31 January 1820, Founders Online. For an excellent discussion of the conflict in Dartmouth, see McGarvie, One Nation Under Law, 15289. Terrett v. Taylor, 13 U.S. (9 Cranch) (1815), 50. 112. WebIn the case of Dartmouth vs. Woodward, by denying the state of New Hampshire the right to convert Dartmouth College into a public university, through whichNew Hampshire Not only did Washington cite Blackstone's distinction between private and public corporations, he also called attention to the fact that the Court had already set down the differences by quoting at length from Story's opinion in Terrett. Melish, John, and Benjamin Tanner. Newmeyer, Supreme Court Justice Joseph Story, 13233. 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. Second, these cases push historians to understand disestablishment not just as a movement that secured individual rights but also as a process with significant implications for early national corporations. Marshall intimated that, if sense of people, Legislature may interposesense not yet expressed by majority. Only if the people's fundamental rights had been betrayed by a corporate charter could the legislature interpose on their behalf and justifiably revoke incorporation. 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. 36. Unmoved by Marshall's arguments, Madison voted to repeal the act of incorporation for the Episcopal Church after passing the Statute for Religious Freedom.Footnote 63 Virginia's evangelicals had not only succeeded in overturning the specific law but in reshaping the constitutional definition of a religious establishment to include religious incorporation. 120. 72. The exclusive legacy of the establishment's customary incorporation and its material wealth hung over these post-Revolutionary debates in Virginia. The assembly affirmed, for example, that vestries and churchwardens could make bylaws, disburse funds, bring lawsuits, and sign contracts.Footnote 27 Like Virginia's other colonial corporations, vestries were public bodies and could buy or dispose of real estate only with the assembly's approval.Footnote 28 The assembly could dissolve parish vestries whom they deemed incompetent or unqualified. The leading eighteenth-century Virginian legal writer George Webb noted that in every Virginian parish there were three distinct corporate bodies: churchwardens, vestry, and minister. For more on the connection between Tucker's political views and his jurisprudential philosophy and outlook as a jurist, see Doyle, Christopher, Judge St. George Tucker and the Case of Tom v. Roberts. For more on Story's legal career, see Newmeyer, Supreme Court Justice Joseph Story. 124. In short, Story treated the post-1784 parish like any other private corporation. (Q006) Southern slave states sought to protect their national political interests by. The corporations of the established church existed by force of the common law arising from the universal agreement of the whole community.Footnote 19 These common law corporations could shew no charter of incorporation, but rather derived their legal privileges and special status under the presumed consent of the crown and on the basis of custom.Footnote 20 Blackstone mentioned parish churchwardens, bishops, vicars, and the king himself as examples of such customary corporations. 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 vulnerability of dissenters property would surface decades later when congregations struggled to sell buildings or land to which they lacked clear title under Colonial-Era deeds. 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. Virginia's parish vestries and churchwardens raised an annual levy, punished moral crimes, and administered poor relief. 125. No other state curbed the corporate rights of the former established church to the same degree, which made Virginia's disestablishment an important litmus test for the rights of all corporations in the early national United States. The missing link between these cases is incorporation. In Dartmouth v. Woodward (1819) the Court promoted business growth by denying states the right to alter or impair contracts unilaterally. C. G. Chamberlayne, ed., The Vestry Book of Petsworth Parish, Gloucester County, Virginia, 16771793 (Richmond, VA: The Library Board, Division of Purchase and Print, 1933), 208. Two hundred years ago this week, the Supreme Court issued its now famous ruling in Dartmouth College v. 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. New Hampshire and Virginia directly challenged colonial corporate entitiescolleges and churcheswhile overhauling the relationship between religion and government. None of these works explore how Marshall's experience as a legislator during Virginia's disestablishment shaped his decision in Dartmouth College. Over the next decade, a host of colonial laws that had empowered the Anglican Church and penalized dissenters were overturned. Currie, The Constitution in the Supreme Court, 14041. Other works that emphasize the three types of corporations (municipal, religious, and business) leave out the distinctions between statutory and customary corporations. 27. 81. Feature Flags: { The case sought to establish the validity of contracts, especially 32. Tucker's opinion had distinguished between the property rights of private persons and corporations. 41. Bruce, Institutional History of Virginia in the Seventeenth Century, 2 vols. The legislature changed the school's corporate charter by transferring the control of trustee appointments to the governor. From James Madison to the House of Representatives, 21 February 1811, Founders Online, National Archives. The caveat that brought this case to the United States Supreme Court was that Christ Church and its glebe now stood in the new capital city, Washington, DC (see Figure 2).Footnote 84 Christ Church sought an act of incorporation from Congress in order to stave off the seizure of their property.Footnote 85. 14. Marshall voiced a commitment to protecting vested rights and preventing legislative intrusion by voting to support the resolution against glebe confiscation in 1789. 52. While Dartmouth College had been incorporated by a royal charter in colonial New Hampshire, the litigant in Terrett, a parish vestry, had been incorporated under common law in colonial Virginia. 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. 10 Va. 113, 144. 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. 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). After the repeal of incorporation, Marshall voted in support of a resolution framing the conflict as a matter of private property, reaffirming the vested rights of parishes, and preventing future discussion of glebe confiscation.Footnote 114 The evidence from Marshall's legislative career overwhelmingly suggests that he would have joined Story's decision in Terrett.

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