Terrett v. Taylor, 13 U.S. (9 Cranch) (1815), 50. WebIn Dartmouth v. Woodward (1819) the Court promoted business growth by denying states the right to alter or impair contracts unilaterally. 108. Journals of the House of Burgesses of Virginia, 17731776 (hereafter JHBV), May 17, 1774, 103. Perhaps the Anglican parish's most visible exercise of corporate power was its acquisition of valuable property. Ultimately, the defense and definition of the corporation that was cemented in Dartmouth College emerged from this process of cultural turmoil and settled some of the most hotly contested legal questions left over from the rupture of revolution. A few weeks later, the clergy of the Episcopal Church also petitioned the legislature for an act of incorporation. Marshall's decision in Dartmouth College endorsed many of the same principles as Story's opinion had in Terrett. Trustees of Dartmouth College v. Woodward, 17 U.S. 518 (1819), 650. Terrett v. Taylor, 13 U.S. (9 Cranch) (1815), 52. Public opinion toward the Anglican establishment had soured in Virginia before the Revolution, and the state began dismantling the established church in 1776. 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. Click the card to flip . 1 / 15. a. 25. Christ Church in Alexandria, Virginia in 2020. Dartmouth College, like Terrett, distinguished between public and private corporations and insisted on the insulation of private corporations from the legislature.Footnote 125 Marshall declared in Dartmouth that all contracts and rights respecting property, remained unchanged by the revolution, which echoed Story's statement in Terrett that the dissolution of the regal government no more destroyed the right to possess or enjoy this property than it did the right of any other corporation or individual to his or its own property.Footnote 126 The significant difference between these statements, of course, lay in the Marshall's use of the word contract. Marshall expressly grounded his decision in the Contract Clause by framing all corporate charters as contracts. Despite Virginia's many statutes proscribing evangelical worship, the number of dissenters in Virginia continued to grow as the Great Awakening moved south in the 1750s.Footnote 38 Expanding communities of dissenters began to press for incorporation to secure their property. Numerous scholars have observed Marshall's penchant for excluding citations from his decisions. These radical policies set Virginia apart from other states and made these disputes a critical litmus test for the rights of all corporations. 55. Although numerous congregants had made contributions to the church, the pious intentions of such benefactors cannot be effectually carried into execution, the elders of the Church not being incorporated, so as to be capable of taking care and holding lands and Slaves for the use of the minister. The governor dissolved the colonial assembly in the turmoil of the Revolution before it could respond either affirmatively or negatively to the church's request.Footnote 39. Woodward opinion advanced a principled originalism. 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. 71. 127. 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 state had no claim on the property of the former established church, which was still vested in its parishes. The legislature soon revoked the Episcopal Church's incorporation, prohibited any church from becoming incorporated, and confiscated parish property. 107. 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. 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. Story's discussion of colonial corporations in Terrett reveals one the most important links to Dartmouth College because he explicitly mentioned royal grants alongside customary corporations.Footnote 94. [Philadelphia? Virginia's Glebe Act exhibited an embarrassing disregard for the rights and property of the Episcopal Church. 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. The rights secured under common law had relied on the king's consent and therefore had not survived the political revolution. Daniel Webster, who argued on behalf of his alma mater, invoked Terrett repeatedly in his arguments before the Court. McConnell, Michael W., The Supreme Court's Earliest Church-State Cases: Windows on Religious-Cultural-Political Conflict in the Early Republic, Tulsa Law Review 37 (2001): 743Google Scholar; Mark McGarvie, One Nation Under Law (DeKalb, IL: Northern Illinois University Press, 2005), 15289; and Sarah Barringer Gordon, The Landscape of Faith: Religious Property and Confiscation in the Early Republic, in Making Legal History: Essays in Honor of William E. Nelson, ed. This discussion of religious freedom was not tangential but was essential to Story's line of argument. The prospect of general incorporation for religious societies was proposed in June and again in November of 1784, but the House never voted on a specific bill. 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. View all Google Scholar citations Terrett v. Taylor, 13 U.S. (9 Cranch) (1815), 49. 7. Colonists unquestionably accepted the incorporation of parish vestries, churchwardens, and rectors under common law. 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. 31 square miles on the southwestern bank of the Potomac River, formerly part of Fairfax County, VA, became Alexandria County, DC. 118. 3. 116. R.A. Brock, ed., The Vestry Book of Henrico Parish, Virginia 1730-'73 (Richmond, VA: 1874), 148. The state legislature passed an act of incorporation for the newly private Episcopal Church in 1784 while also proposing a general act of incorporation for all religious societies. 100. Melish, John, and Benjamin Tanner. Whereas Justices Story and Washington pointed to Terrett as a key precedent in their opinions, Marshall did not reference the case when writing on behalf of the Court.Footnote 13 In fact, he cited no case law at all beyond an enigmatic statement that his decision was equally supported by reason, and by the former decisions of this court.Footnote 14 Although acknowledging that his opinion rested on historical precedent, Marshall did not leave a trail of jurisprudential breadcrumbs to elucidate his thinking. 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. Augusta County, Deed Book 19, No. See Society for Propagation of the Gospel v. Town of New Haven, 21 U.S. 464 (1823), 48182; and Trustees of Dartmouth College v. Woodward, 17 U.S. 518 (1819), 66466. 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. The discrepancy between the Virginia court's ruling in Turpin and the United States Supreme Court's decisions in Terrett and Dartmouth underscores the competing definitions of corporations in the early republic. Hostname: page-component-75b8448494-m747x The Court may have offered an ideological defense of customary incorporation in Terrett, but Virginia's continued refusal to abide by the decision underscored the weakness of common law incorporation. Christ Church in Alexandria, Virginia in 2020. 39. Other works that emphasize the three types of corporations (municipal, religious, and business) leave out the distinctions between statutory and customary corporations. 122. 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. After Madison's veto, the Fairfax County, VA Overseers of the Poor moved forward with the seizure of Christ Church's property. Amidst the turmoil of Virginia's disestablishment, he opposed repealing incorporation and confiscating church property. 83. My dissertation has traced and tracked Virginia's glebe confiscations. 43. In colonial Virginia, rectors, churchwardens, and vestries of the established Anglican Church were incorporated under common law. Feature Flags: { Virginia's seizure of the glebes was held unconstitutional because the legislation siezed vested property from longstanding corporate bodies. 86. This decision not only allowed the legislature to expropriate the glebes but also asserted that doing so reversed earlier unconstitutional grants of property. However, dissolving a vestry did not destroy the corporation itself or interfere with its legal rights. Terrett v. Taylor, 13 U.S. (9 Cranch) (1815), 5152. 91. Trustees of Dartmouth College v. Woodward, 17 U.S. 518 (1819), 591. These new perspectives on Turpin, Terrett, and Dartmouth College deepen our understanding of early American corporations in three key ways. First, it is essential to recognize that the litigants in Turpin and Terrett, parish vestries, were long-standing customary corporations. 35. 114. Library of Congress, Geography and Map Division. 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. After the repeal of the Incorporation Act, no other religious societies became incorporated in the state, and the legislature formally enacted a prohibition against religious incorporation in 1798.Footnote 64 In 1851, the commonwealth formally amended its Constitution to add this provision, which stood in place until 2002.Footnote 65 The hostility toward religious incorporation in Virginia was exceptional, which explains why the state's distinctive policies would become significant test cases for the rights of corporations. Over the next decade, a host of colonial laws that had empowered the Anglican Church and penalized dissenters were overturned. Footnote 112 Not only had the chief justice grown up under the established church, his father had also served as a vestryman and signed property deeds on behalf of his parish.Footnote 113 Marshall would have intimately understood the colonial parish's status as a common law corporation from such a vantage point. 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.
