For a comparison of the two policies of confiscation, see Gordon, The Landscape of Faith.. The corporate rights of churches, and by extension all private corporations, vis--vis the state government became a central question in these deliberations. 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. Terrett v. Taylor, 13 U.S. (9 Cranch) (1815), 50. 60. 31 square miles on the southwestern bank of the Potomac River, formerly part of Fairfax County, VA, became Alexandria County, DC. The court's decision in Terrett refuted Turpin's logic at every step, despite never mentioning the earlier Virginian case by name. Town of Pawlet v. Clark, 13 U.S. 292 (1815). 49. For an excellent discussion of the conflict in Dartmouth, see McGarvie, One Nation Under Law, 15289. 126. 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. 81. For more on Duvall, see White, The Marshall Court, 32127. Finally, integrating customary incorporation into our narratives of early national law drastically reshapes our understanding of the rise of the corporation. Several of the same issues that Tucker had answered in Turpin re-emerged: was the vestry of Christ Church a corporation and, if so, did it hold legal title to the glebe lands? Such sweeping logic was far from narrow and would have challenged numerous state acts of incorporation on the books in 1811. Together, these cases reveal that one of the most significant legal outcomes of disestablishment was the ascendance of the charter. 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). More an exercise in contextualization than a standard account of jurisprudential logic, this article recovers the missing backstory to Dartmouth College by turning to what is perhaps a surprising subject: the long history of church and state in Virginia. Figure 2. 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. 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.. Story wrote that Terrett was decided by a majority, which suggests that at least one of the four justices present for the case (Livingston, Marshall, Washington, and Duvall) disagreed with Story's opinion.Footnote 111 There is ample evidence to conclude that Marshall acquiesced with Story's rationale in Terrett. Mays, Edmund Pendleton, 2:404n14; and Trustees of Dartmouth College v. Woodward, 17 U.S. 518 (1819), 664. Instead, New Englander Justice Joseph Story authored the Court's opinion, which distanced the decision from the decades of rancorous debate over the glebes in Virginia (indeed, distanced it so thoroughly that the essential prologue to Terrett has often been overlooked).Footnote 91 Although Story acknowledged that the questions presented in Terrett were of much delicacy, his opinion was anything but delicate. chapter 9 history review Flashcards | Quizlet 119. But looking at this series of cases togetherstarting with Turpin, moving next to Terrett and then considering Dartmouth Collegeoffers several important insights to scholars. 97. 39. 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. 91. This discussion of religious freedom was not tangential but was essential to Story's line of argument. 58. 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. 2d 624, 63233 (W.D. The Supreme Court's 1819 decision limited the power of a state legislature to invalidate a royal charter, or indeed to alter any corporate contract.Footnote 1 Scholars have emphasized that the legal structure of the modern U.S. business corporation had its genesis in Dartmouth College and called the case an epochal moment in the history of American corporations.Footnote 2 Chief Justice John Marshall's definition of the corporation in Dartmouth College remains a touchstone for scholars and the courts today.Footnote 3, However, when Daniel Webster appeared before the Court, he cast Dartmouth College as an already-settled matter of law, not a potential milestone. 28. The state had no claim on the property of the former established church, which was still vested in its parishes. Dartmouth College v. Woodward was an 1819 Supreme Court case involving the honoring of a contract. The 1789 resolution presented a legal rationale against confiscation by declaring that the dispute over the glebes was not of a religious nature but ought to be settled by the rules of private property. Glebes, churches, and chapels that had been purchased, donated, or acquired through grants from the King of England, had been vested in bodies which were capable in law of taking and holding them to their own use, and which actually did take and hold them to that use. Confiscation by the commonwealth would amount to an unconstitutional invasion of right and a usurpation in the Legislature. The legislature sought to guarantee that parishes property would be inviolably preserved. Marshall's support for this declaration foreshadowed the decision in Terrett, and its specific discussion of royal grants gestured toward his logic in Dartmouth College. 1 / 15. a. 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. 10, ed. Total loading time: 0 For more on how Virginia's dissenters challenged the Anglican establishment, see Thomas Buckley, Church and State in Revolutionary Virginia, 17761787 (Charlottesville: University Press of Virginia, 1977); and John Ragosta, Wellspring of Liberty: How Virginia's Religious Dissenters Helped Win the American Revolution and Secured Religious Liberty (New York: Oxford University Press, 2010). Terrett v. Taylor, 13 U.S. (9 Cranch) (1815), 43, 48. See Robert E. Wright, Corporation Nation (Philadelphia: University of Pennsylvania Press, 2014), 924. Because previous accounts of Terrett ignore customary incorporation, they also overlook the significance of Story's discussion of royal grants and the durability of pre-Revolutionary corporations. 113. 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. 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. Recognizing the widespread existence of common law corporations does not offer a new origin story for all American corporations; instead, it reveals the loss of a once-familiar route to incorporation before the Revolution: common law.Footnote 18 Although the Court endeavored to uphold the rights of customary corporations in Terrett, common law incorporation held little value if state legislatures could simply ignore these institutions corporate status and property claims. Second, the court had to rule on whether the state legislature had the right to revoke incorporation after chartering the Episcopal Church as a private body. In Turpin, Virginia's highest court had authorized the legislature to disregard customary incorporation, revoke a statute of incorporation, and confiscate parish property. Lamoreaux and Novak (Cambridge, MA: Harvard University Press, 2017), 3, 9; Justice Ruth Bader Ginsburg quoted from Marshall's decision in Dartmouth College in her dissent in Burwell v. Hobby Lobby, 573 U.S. 682 (2014). Dartmouth College v. Woodward was an 1819 Supreme Court case that took place when the state of New Hampshire attempted to rewrite Dartmouth's charter. Trustees of Dartmouth College v. Woodward 17 U.S. 518 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. 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). It supported capitalism, where privately owned companies can compete in a free market (without government controls) From Disestablishment to Dartmouth College v. Woodward: How Trustees of Dartmouth College v. Woodward, 17 U.S. 518 (1819), 66465. Other works that emphasize the three types of corporations (municipal, religious, and business) leave out the distinctions between statutory and customary corporations. WebIn 1816, the New Hampshire legislature attempted to change Dartmouth College-- a privately funded institution--into a state university. Several sources state either that the decision was unanimous or specifically note that Marshall joined Story's opinion. 109. In short, Story treated the post-1784 parish like any other private corporation. Journal of the House of Delegates of the Commonwealth of Virginia; Begun and Holden in the City of Richmond, in the County of Henrico, on Monday, The Nineteenth Day of October, in the Year of Our Lord One Thousand Seven Hundred and Eighty-Nine (Richmond: Commonwealth of Virginia, 1828), 8384, 113. 82. Two hundred years ago this week, the Supreme Court issued its now famous ruling in Dartmouth College v. 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. My dissertation has traced and tracked Virginia's glebe confiscations. Terrett v. Taylor, 13 U.S. (9 Cranch) (1815), 55. Monarchy, aristocracy, religious establishment, entail, primogeniture, and a host of cornerstones of pre-Revolutionary law fell victim to this movement. 16. 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. Eckenrode, Separation of Church and State in Virginia, 120. Bushrod's Washington's 1797 opinion about the glebe lands is quoted in Mays, Edmund Pendleton, 2:404n14. "useRatesEcommerce": false An Act Incorporating the Protestant Episcopal Church in the town of Alexandria, in the District of Columbia, January 1811. 36. Story, however, offered a definition of religious establishment rooted in exclusivity. G. Edward White, The Marshall Court and Cultural Change, 18151835 (New York: Macmillan, 1988), 608. 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. 8. 115. Phillip Bruce's work offers the only discussion of the corporate power of Virginia's parishes. 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. (Q006) Southern slave states sought to protect their national political interests by. 87. 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? However, President James Madison vetoed the resulting Act of Incorporation in 1811. Madison explained that the law, which incorporated the church and laid out rules for the ecclesiastical corporation's government, exceeds the rightful authority to which governments are limited by the essential distinction between civil and religious functions and violates in particular the article of the Constitution of the United States which declares that Congress shall make no law respecting a religious establishment.Footnote 86 Madison had been convinced by Virginia's evangelicals that incorporation was a form of religious establishment.Footnote 87 After leaving office, he would elaborate on the threat posed by propertied religious corporations in his Detatched Memoranda. The timing is particularly striking when compared with other Anglican colonies. Clergy of the Protestant Episcopal Church: Petition, June 4, 1784, Legislative Petitions Digital Collection, LVA. Hostname: page-component-75b8448494-m747x Ely, James W. Jr., The Marshall Court and Property Rights: A Reappraisal, The John Marshall Law Review 33 (2000): 104950Google Scholar; Benjamin F. Wright, Jr., The Contract Clause of the Constitution (Cambridge, MA: Harvard University Press, 1938), 38; and David P. Currie, The Constitution in the Supreme Court: The First Hundred Years, 17891888 (Chicago: University of Chicago Press, 1992), 138. 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. A challenge to the law reached the Virginia Supreme Court in 1802 after the vestry of Manchester Parish sued to prevent the Chesterfield County Overseers of the Poor from selling their glebe in a case known as Turpin v. Lockett (1804).Footnote 69 Proceedings in Turpin halted the sale of glebe lands as the state's highest court deliberated. Dueling interpretations of corporations ultimately underlay the differences between Tucker's and Story's rulings in Turpin and Terrett. 103 (1801). Although it may seem contradictory for the Court to reject Virginia's glebe confiscation policy while approving Vermont's plan, Story's decision in Pawlet relied on the same logic as Terrett. 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. The divergent outcomes in the two cases lay in the distinctions between the Anglican Church in Virginia and in Vermont before the Revolution. 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). Marshall included no citations at all in his decision, save two references to Blackstone and an oblique statement that his opinion rested on the former decisions of this Court.Footnote 123 The absence of a citation to Terrett in the text of the decision, then, cannot be taken to mean that the chief justice did not link the two cases.Footnote 124 The omission of any precedent from Marshall's opinion requires looking beyond the decision to piece together what informed his rationale. English common law also dictated the legal standing of the Anglican establishment in colonial Virginia. Dartmouth College v. Woodward is taken to be the seminal case in the rise of the corporation. Marshall's decision in Dartmouth College endorsed many of the same principles as Story's opinion had in Terrett. (hereafter Hening), 2:17172; 1:399400; 3:151. As a legislator, Marshall had voted to incorporate the Protestant Episcopal Church in 1784 and argued that the legislature did not have adequate grounds in 1786 to revoke its charter. Trustees of Dartmouth College v. Woodward, 17 U.S. 518 (1819), 650. 1. The weakness of common law incorporation as a mechanism for securing corporate rights strengthens our understanding of the robust protections afforded to chartered corporations in Dartmouth College. Putnam's Sons, 1910), 1:77. Legislators and the public debated church and state in the language of religious freedom, but the courts decided these cases by delineating the rights of corporations. Colonists unquestionably accepted the incorporation of parish vestries, churchwardens, and rectors under common law. Chapter 8 2. 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. Webchapter 9 history review. Joseph Stancliffe Davis landmark history of American corporations briefly mentioned parishes before dismissing them as mere quasi-corporations rather than true corporations. Incorporation remained front and center in Virginia's debates over disestablishment precisely because it had been a closely guarded privilege of the established church. 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. Melish, John, and Benjamin Tanner. 10 Va. 113, 144. 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. 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. 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. Arguing the Dartmouth College Case, 200 Years On | Dartmouth 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. The Pawlet decision does not record Marshall's support, but the Chief Justice endorsed Story's rationale just a few years later in his decision in Trustees of Philadelphia Baptist Ass'n v. Hart's Executors (1819).Footnote 116 Ultimately, the Court's decisions in Terrett and Pawlet affirmed the rights of corporations and provided ideological scaffolding for yet another disestablishmentarian case, Dartmouth College. The New York and South Carolina legislatures rejected numerous petitions for incorporation from dissenting congregations throughout the eighteenth century.Footnote 40 In Maryland, the legislature's mortmain statutes denied Catholics and Protestant dissenters the ability to incorporate; the parishes of Maryland's established Anglican Church, however, held their property under common law incorporation.Footnote 41 Virginia's growing community of dissenters was just beginning to protest against their inability to incorporate on the eve of the Revolution. George Webb, The Office and Authority of a Justice of the Peace (Williamsburg: Printed by William Parks, 1736), 71. 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. The famed orator maintained that Dartmouth College closely resembled a case from 4 years earlier, Terrett v. Taylor (1815). Terrett v. Taylor, 13 U.S. (9 Cranch) (1815), 43, 5052. Judicial Nationalism 1819-1824 Flashcards | Quizlet She thanks the anonymous reviewers and Editor-in-Chief Gautham Rao for their valuable suggestions during the revision process. Virginia's parish vestries and churchwardens raised an annual levy, punished moral crimes, and administered poor relief. Webster suggested that if, therefore, it has been shown, that this college is to be regarded as a private charity, this case is embraced within the very terms of that decision [Terrett].Footnote 119 Although Americans celebrate Dartmouth College as the case that asserted these rights, Webster suggested that the Court had already laid this groundwork 4 years earlier in Terrett when it ruled that Virginia could not revoke the charter of a private corporation. The Glebe Act of 1802 would stand.Footnote 81 Within weeks, counties began confiscating parish lands across the state. This decision not only allowed the legislature to expropriate the glebes but also asserted that doing so reversed earlier unconstitutional grants of property. 27. 75. The court also had to answer the additional jurisdictional question of whether a county in Virginia could confiscate land in Washington, DC under a state law. Terrett v. Taylor, 13 U.S. (9 Cranch) (1815), 5152; and Trustees of Dartmouth College v. Woodward, 17 U.S. 518 (1819), 63539. In the early 1800s, the Supreme Court decision associated with John Marshall. Daniel Webster, who argued on behalf of his alma mater, invoked Terrett repeatedly in his arguments before the Court. Terrett v. Taylor, 13 U.S. (9 Cranch) (1815), 50. WebPetitioner Dartmouth CollegeIn 1816, the New Hampshire legislature attempted to change Dartmouth College-- a privately funded institution--into a state university. 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. 11. Trustees of Dartmouth College v. Woodward, 17 U.S. 518 (1819), 63334, 650. Part of Terret's obscurity stems from its omission from Chief Justice Marshall's decision in Dartmouth College. McConnell, The Supreme Court's Earliest Church-State Cases, 13. Terrett v. Taylor, 13 U.S. (9 Cranch) (1815), 50. 72. Joseph Story, Commentaries on the Constitution of the United States (Boston: Hilliard, Gray, and Company, 1833), 3:258, 260, 269, 533, 691. 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. 48. Had these two policies been carried into effect, Virginia's disestablishment would have resembled events in other states. 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). 15. John Blair Smith, a leading Presbyterian minister, wrote to Madison during the summer of 1784 that some form of incorporation could have been extremely proper, but that the specific terms of the 1784 act had made the Church a mere political machine, which the State may regulate at pleasure.Footnote 50 Madison concurred and expressed concerns that the law kept the Episcopal Church under legislative oversight.Footnote 51 However, he acknowledged that the necessity of some sort of incorporation for the purpose of holding and managing the property of the Church could not well be denied. Despite his reservations, Madison was willing to support incorporation in order to prevent any sort of religious tax from passing, which he viewed as a much greater evil.Footnote 52, Presbyterians and Baptists organized a petitioning campaign to demand a repeal of the Incorporation Act during 1786.Footnote 53 Echoing Smith and Madison, evangelical petitioners argued that the Act of Incorporation had made the legislature the Head of that church in violation of the state constitution.