111. 37. The Virginia Supreme Court and the United States Supreme Court ultimately diverged sharply over the legality of the 1802 Glebe Act and the state's disestablishmentarian program. Story's reasoning in the two cases was identical; namely, that the state could not take vested property from corporate bodies. James Madison to Thomas Jefferson, January 9, 1785, Founders Online. See Newmeyer, Supreme Court Justice Joseph Story, 132. Newmeyer stated that Marshall cited Terrett in Dartmouth College, but does not elaborate any further. In colonial Virginia, rectors, churchwardens, and vestries of the established Anglican Church were incorporated under common law. Perhaps the Anglican parish's most visible exercise of corporate power was its acquisition of valuable property. 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. But looking at this series of cases togetherstarting with Turpin, moving next to Terrett and then considering Dartmouth Collegeoffers several important insights to scholars. Marshall voiced a commitment to protecting vested rights and preventing legislative intrusion by voting to support the resolution against glebe confiscation in 1789. 125. The Supreme Court upheld the sanctity of the original charter of the 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. See examples of four lawsuits brought by Bristol Parish in the Prince George County Court Minute Book, 17371740, Mircofilm Reel 9, 94103; 27980; 305; 516, Library of Virginia, Richmond, VA (hereafter LVA). DARTMOUTH COLLEGE V. WOODWARD 27. 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. Eric Hilt, Early American Corporations and the State, in Corporations and American Democracy, 4042, 48, 400 n.14. 9. 72. 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. 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. 25. 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. 49. But he ultimately dismissed the vestry's suit and upheld the Glebe Act as lawful under Virginia's Constitution.Footnote 73. 19 July 2021. 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. 2. 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. Trustees of Dartmouth College v. Woodward, 17 U.S. 518 (1819), 651; and Terrett v. Taylor, 13 U.S. (9 Cranch) (1815), 50. 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. Beveridge, The Life of John Marshall, 1:52n3. 43. Story took the opportunity to rule affirmatively on the matter in Dartmouth College when asserting that the Revolution had not destroyed vested rights of property and arguing that the legislature did not have the right to seize the property of a corporation.Footnote 122 The justice also returned to the distinction between private and public corporations, just as he had in Terrett. Bushrod's Washington's 1797 opinion about the glebe lands is quoted in Mays, Edmund Pendleton, 2:404n14. 58. 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. See Falwell v. Miller, 203 F. Supp. WebThe charter vested control of the college in a self-perpetuating board of trustees, which, as a result of a religious controversy, removed John Wheelock as college president in 1815. The state had no claim on the property of the former established church, which was still vested in its parishes. 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. 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. Had these two policies been carried into effect, Virginia's disestablishment would have resembled events in other states. 98. 90. 13. 51. The case pitted the ascendant Democratic Republicans in the statehouse who supported disestablishment against the Congregationalists on Dartmouth's Board of Trustees. 91. Gordon, The African Supplement, 38990n8. 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 Clergy of the Presbyterian Church: Petition, May 26, 1784, Legislative Petitions Digital Collection, LVA. 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. 118. The formerly established church worried that their change in appellation would lead to cavilsdisputes and litigations over parish property and hoped that the state would reaffirm their customary corporate rights under a formal act of incorporation.Footnote 46, The Committee for Religion in the Virginia House of Delegates endorsed the Episcopal Church's request for incorporation while also recommending a general act of incorporation to benefit all other religious societies.Footnote 47 The legislature passed an act incorporating the Episcopal Church in the fall session of 1784. The men characterized charters as irrevocable and compared rescinding incorporation to the tyrannical acts of Great Britain before the Revolution. 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. 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. & G. Bartow, 1823), 13 vols. 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. 121. Trustees of Dartmouth College v. Woodward, 17 U.S. 518 (1819), 59192; Terrett v. Taylor, 13 U.S. (9 Cranch) (1815), 52. 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. Photograph by the author. 19. Because incorporation was rare in the colonial Chesapeake, Anglican parishes were all the more powerful for holding this status. In 1801, Maryland and Virginia ceded land to the federal government to create the District of Columbia. 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. James Madison to Thomas Jefferson, January 9, 1785, Founders Online. The Virginia Declaration of Rights, Section 16 and Section 4. Tucker argued that the 1784 Act of Incorporation had amounted to an entirely new, and essentially different, constitution of incorporation.Footnote 75 Parish ministers and vestries had accepted a private foundation under this act, which must be construed as a total surrender of their former state.Footnote 76 Tucker concluded, the ancient vestries were dissolved, either by the change of government, or by the act for incorporating the protestant episcopal church: and that the new bodies corporatewere private incorporations, essentially differing from the former, and owing their existence and their rights, solely to that act of the legislature.Footnote 77 According to Tucker, the Revolution had destroyed the conditions necessary for customary incorporation, and the legislature had reconstituted vestries as private corporations. The issue of the general assessment was postponed until the following year. The legislature 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). 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. Contracts were only powerful tools if they could be enforced by the courts, and numerous parochial lawsuits appear in vestry books and county court records.Footnote 31 Samuel DuVal had failed to construct a new church according to a contract he had signed with the vestry of Henrico Parish in 1771, and he returned his advance after facing the threat of a lawsuit.Footnote 32 Churchwardens often had to resort to lawsuits to recover outstanding debts. In Terrett, the Vestry of Christ Church in Alexandria sought to block the Fairfax County, VA Overseers of the Poor from seizing its 517-acre glebe (see Figure 1). "useRatesEcommerce": false 23. The "era of good feelings" following the War of 1812 reflected rising nationalism and optimism in the United States. Currie discusses Terrett as one of the earliest expositions on the Establishment Clause. R.A. Brock, ed., The Vestry Book of Henrico Parish, Virginia 1730-'73 (Richmond, VA: 1874), 148. Whereas Tucker had granted the legislature significant latitude to regulate private corporations, the Court used Terrett as an opportunity to assert the independence of private corporations vis--vis state legislatures, and defended corporations indefeasible and irrevocable titles to their property.Footnote 83, The conflict in Terrett v. Taylor (1815) resembled the earlier Turpin v. Lockett in many ways. 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. Second, it is essential to consider these cases within the broader context of religious disestablishment. 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. 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. 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. 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. 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. Eckenrode, Separation of Church and State in Virginia, 120. Virginia's seizure of the glebes was held unconstitutional because the legislation siezed vested property from longstanding corporate bodies. The Avalon Project at Yale Law School. Melish, John, and Benjamin Tanner. James Madison, Detatched Memoranda, ca. For the record of votes, 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 (Richmond: Commonwealth of Virginia, 1828), 79. November 27, 1789, Journal of the House of Delegates of the Commonwealth of Virginia (Richmond, VA: 1828), 8384, 113. 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. 70. Terrett v. Taylor, 13 U.S. (9 Cranch) (1815), 43, 48. This jurisdictional argument could have been invoked at any point in the ruling to throw out Fairfax County's claim to the glebe lands. Virginia Declaration of Rights, Section 1. Tucker made two arguments to justify the dissolution of private corporations. Has data issue: false To err on the side of caution, this article understands the term majority in the text of the decision to be a reflection of non-unanimity. However, the day before delivering his opinion in court, the 82-year-old justice died, supposedly with an opinion striking down the Glebe Act beside him.Footnote 71 The resulting mistrial led to a second trial. Blunting the Revolution's Radicalism from Virginia's District Courts, The Virginia Magazine of History and Biography 106 (1998): 41942Google Scholar. 3. 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). 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? 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. 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. Entailing land was one common method that Virginians used to preserve property across multiple generations. The legislative program of disestablishment began in 1776 with the passage of the Virginia Declaration of Rights, which guaranteed free exercise. 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. 110. 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. See David S. Schwartz, The Spirit of the Constitution: John Marshall and the 200-Year Odyssey of McCulloch v. Maryland (New York: Oxford University Press, 2019), 60; Hobson, The Great Chief Justice, 18183; Wicek, Liberty under Law, 3233; Currie, David P., The Constitution in the Supreme Court: The First Hundred Years, 17891888 (Chicago: The University of Chicago Press, 1992), 196Google Scholar. In Virginia, customary corporations and irrevocable charters were likewise attacked as an un-republican vestige of legal favoritism. 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. 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. 101. This ambiguity leaves scholars with no choice but to rely on historical context to reconstruct Marshall's reasoning in Dartmouth College. Contemporary definitions of the corporation and the long-standing hesitancy of scholars to recognize parishes and other common law corporations as true corporations are a legacy of these disputes. Joseph Story, Commentaries on the Constitution of the United States (Boston: Hilliard, Gray, and Company, 1833), 3:258, 260, 269, 533, 691. Digital History ID 3528 - University of Houston Currie, The Constitution in the Supreme Court, 14041. 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. The case sought to establish the validity of contracts, especially 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. Augusta County, Deed Book 19, No. District of Columbia. 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.. In short, Story treated the post-1784 parish like any other private corporation. District of Columbia. When working in private practice in Richmond in 1797, Justice Washington had been quietly consulted about the possibility of glebe confiscation. See An Act Concerning the District of Columbia, 2 Stat. Common law obviated the necessity of a formal act of incorporation for the established church in Virginia, but the colonial assembly recognized the corporate standing of parish vestries and churchwardens in many pieces of legislation. 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. In recognizing a charter as a contract that vested private rights against 119. Livingston signed onto Story's and Washington's decisions in Dartmouth that cited Terrett. Michael McConnell suggests that the vestry's decision to bring Terrett in federal court was a shrewd strategy for the case to be heard by a friendlier Federalist judge, but this assertion overlooks the court battle in Turpin. Barbara McGraw (Malden, MA: Wiley Blackwell, 2016), 130. The state took control of the school's governance and established Dartmouth University as a nonsectarian, public university in place of the orthodox college. Public opinion toward the Anglican establishment had soured in Virginia before the Revolution, and the state began dismantling the established church in 1776. George Webb, The Office and Authority of a Justice of the Peace (Williamsburg: Printed by William Parks, 1736), 71. Christ Church in Alexandria, Virginia in 2020. WebThe case arose when the president of Dartmouth College was deposed by its trustees, leading to the New Hampshire legislature attempting to force the college to become a 40. } 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. Terrett v. Taylor, 13 U.S. (9 Cranch) (1815), 52. 124. 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. R, the context of the document and Marshall and Randolph's legal partnership make Randolph's identity almost certain. 5. Newmeyer, Supreme Court Justice Joseph Story, 13233. 61. Virginia's highest court upheld these policies as lawful, but the US Supreme Court's rejected them as unconstitutional in Terret. 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), 63334, 650. (New York: G.P. 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. English common law also dictated the legal standing of the Anglican establishment in colonial Virginia. 16. Tucker offered a second, more sweeping defense of the legislature's right to dissolve private corporations by distinguishing between the rights of people and corporations. 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.
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