81. 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. 98. 58. The court's decision in Terrett refuted Turpin's logic at every step, despite never mentioning the earlier Virginian case by name. Over the next decade, a host of colonial laws that had empowered the Anglican Church and penalized dissenters were overturned. 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. 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. 5.0 (1 review) Term. 93. In a remarkable twist of fate, St. George Tucker's son, Henry St. George Tucker, presided over the case, Selden v. Overseers of the Poor of Loudoun, as chancellor of the Winchester Chancery Court in 1830. 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. The Church of England was not a single corporation but rather owed its legal standing to numerous ecclesiastical and lay corporations, which were invested with property and rights. This discussion of religious freedom was not tangential but was essential to Story's line of argument. (hereafter Hening), 2:17172; 1:399400; 3:151. But the opinion of the Court, authored by Chief Justice Marshall, did not cite Terrett. District of Columbia. 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. 92. 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. 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. 75. Melish, John, and Benjamin Tanner. R.A. Brock, ed., The Vestry Book of Henrico Parish, Virginia 1730-'73 (Richmond, VA: 1874), 148. Did a state legislature have the right to seize the property of the parish? 107. Justice Bushrod Washington's concurring opinion echoed Webster's oral arguments. Such sweeping logic was far from narrow and would have challenged numerous state acts of incorporation on the books in 1811. 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. 56. The indefinite accumulation of property from the capacity of holding it in perpetuity would enable ecclesiastical corporations to swallow government, and he argued that the power of all corporations, ought to be limited in this respect.Footnote 88 Madison articulated a far-reaching vision of non-establishment at the national level by insisting that any form of religious incorporation not only entangled church and state but also threatened liberty.Footnote 89. 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. The 1786 Virginia Statute for Establishing Religious Freedom extended the promise of religious liberty.Footnote 44 Written by Jefferson and championed by Madison, the act abolished state financial support for religion, repealed religious tests, and overturned laws that had curbed free exercise of religion. 11. 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. Render date: 2023-05-01T16:19:54.698Z Clergy of the Protestant Episcopal Church: Petition, June 4, 1784, Legislative Petitions Digital Collection, LVA. What did Chief Justice Marshall, who had personally taken part in Virginia's disestablishment, make of Terrett? 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. Several sources state either that the decision was unanimous or specifically note that Marshall joined Story's opinion. 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. The case sought to establish the validity of contracts, especially James Madison, Notes on Charters of Incorporation, [January?] 103. 87. The missing link between these cases is incorporation. The Revolution upended the relationship between the governed and their government and threw the doors wide open to challenging a range of inherited legal doctrines and customs. 23. James Madison to Thomas Jefferson, January 9, 1785, Founders Online. But what was the fate of the many laws concerning the legal status and property of the Episcopal Church after independence? 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. His ruling declared two Virginian laws inoperative and contradicted Madison's interpretation of the 1776 Virginian Constitution, the United States Constitution, and the Bill of Rights, all of which the sitting president had helped draft. 73. In one of the earliest Supreme Court discussions of the First Amendment's religion clauses, Story castigated the Virginian legislature, and implicitly the sitting President, James Madison, for equating incorporation with religious establishment.Footnote 103 Madison's veto message and Tucker's Turpin opinion had made entanglement between church and state the basis for their definition of religious establishment. Marshall voiced a commitment to protecting vested rights and preventing legislative intrusion by voting to support the resolution against glebe confiscation in 1789. Of the four Justices, Duvall seems most likely to have dissented. 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. 97. Clergy of the Presbyterian Church: Petition, May 26, 1784, Legislative Petitions Digital Collection, LVA. Without parsons, vestries, or churchwardens, there were no corporations to claim the property before the Revolution. Tucker's opinion had distinguished between the property rights of private persons and corporations. WebIn 1816, the New Hampshire legislature attempted to change Dartmouth College-- a privately funded institution--into a state university. 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. 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. 94. Madison, Notes on Charters of Incorporation, Founders Online. See examples of five parish lawsuits in the New Kent County Court listed in C.G. Virginia Constitution (1851), article 32. 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. 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). Perhaps it is not surprising that Terrett v. Taylor faded into obscurity. Webchapter 9 history review. In short, Story treated the post-1784 parish like any other private corporation. An Act Incorporating the Protestant Episcopal Church in the town of Alexandria, in the District of Columbia, January 1811. Marshall the young legislator voiced a firm commitment to the vested rights of corporations and the irrevocability of charters decades before he would confront these issues from the bench. 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. 127. 122. 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. 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. Terrett v. Taylor, 13 U.S. (9 Cranch) (1815), 50. The legislature On Pendleton's legal career, see David John Mays, Edmund Pendleton, 17211803: A Biography (Cambridge, MA: Harvard University Press, 1952). Trustees of Dartmouth College v. Woodward, 17 U.S. 518 (1819), 59192; Terrett v. Taylor, 13 U.S. (9 Cranch) (1815), 52. 55. 70. The state took control of the school's governance and established Dartmouth University as a nonsectarian, public university in place of the orthodox college. John Blair Smith to James Madison, June 21, 1784, Founders Online, National Archives, https://founders.archives.gov/documents/Madison/01-08-02-0043 (accessed April 4, 2019). The case pitted the ascendant Democratic Republicans in the statehouse who supported disestablishment against the Congregationalists on Dartmouth's Board of Trustees. 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). & G. Bartow, 1823), 13 vols. Trustees of Dartmouth College v. Woodward, 17 U.S. 518 (1819), 651; and Terrett v. Taylor, 13 U.S. (9 Cranch) (1815), 50. See Alyssa Penick, The Churches of Our Government: Parishes, Property, and Power in the Colonial and Early National Chesapeake (PhD diss., The University of Michigan, 2020). 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? 31. 2. Figure 2. Newmeyer characterizes Terrett as a significant development in the publicprivate distinction in American law. Eric Hilt, Early American Corporations and the State, in Corporations and American Democracy, 4042, 48, 400 n.14. Historians do not have Pendleton's decision, but his views on the glebes were well known. Putnam's Sons, 1910), 1:77. 5. 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. 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. 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. 31 square miles on the southwestern bank of the Potomac River, formerly part of Fairfax County, VA, became Alexandria County, DC. Photograph by the author. 13. 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. Terrett had outlined many of the key ideas associated with Dartmouth College v. Woodward, and its role as a central precedent makes sense when the parish is rightfully understood to be a colonial corporation. Terrett v. Taylor, 13 U.S. (9 Cranch) (1815), 55. Under both colonial statute and common law, the vestries in Virginia were a body politic, capable of purchasing and holding lands for the use of the ministers of their respective parishes; and capable of a perpetual succession, and the legal titles to all the glebe lands in Virginia were at the period of the revolution vested in the vestries. But the Revolution had abolished every vestige of the monarchial government and the mere act of rejecting the king and the ancient constitution of the colony, and adopting one totally different therefrom, did operate an immediate dissolution of every part of the body politic connected with, and dependent upon, the ancient constitution, or form of government. Therefore, vestries no longer held their ancient rights after Virginia declared independence.Footnote 74 For Tucker, the Revolution had destroyed the conditions necessary for customary incorporation. The Avalon Project at Yale Law School. 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.
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