Eckenrode, Separation of Church and State in Virginia: A Study in the Development of the Revolution (Richmond: Virginia State Library, 1910), 120; Buckley, Church and State in Revolutionary Virginia, 168. 64. Tucker was sympathetic to the Episcopal Church's predicament and expressed disappointment that the question of the glebes had been agitated with such hostility. See Naomi R. Lamoreaux and William J. Novak, Corporations and American Democracy: An Introduction, in Corporations and American Democracy, ed. John Marshall and Edmund Randolph both voted in favor of a resolution in 1789 to prevent any further discussion of the glebes. In Dartmouth v. Woodward (1819) the Court promoted business growth by denying states the right to alter or impair contracts unilaterally. Inhabitants of St. Asaph's Parish: Petition, Caroline County, December 4, 1786, Legislative Petitions Digital Collection, LVA. Over the course of the next several decades, more than 35,000 acres, dozens of enslaved men and women, and other glebe property would be seized.Footnote 82 Although the Glebe Act had not authorized the sale of churches or their contents, counties auctioned off churches, pews, bells, communion silver, and books. 10, ed. 49. 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. The legislature changed the school's corporate 39. The famed orator maintained that Dartmouth College closely resembled a case from 4 years earlier, Terrett v. Taylor (1815). Historians do not have Pendleton's decision, but his views on the glebes were well known. 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). 113. Journals of the House of Burgesses of Virginia, 17731776 (hereafter JHBV), May 17, 1774, 103. 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. 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). 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. 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. 12. Terrett v. Taylor, 13 U.S. (9 Cranch) (1815), 50. He had no time for Tucker's framing of the dissolution of parishes in Turpin as part of the long march of religious reformation. 109. Duvall is perhaps best known for his reticence on the Court, and therefore, it seems unsurprising that he left no explanation of his dissent. 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. With this sweeping assessment, Marshall drew together the earlier decision in Terrett with Dartmouth College in protecting the rights of all corporations.Footnote 127. 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. 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. In 10 Va. 113, 144. For example, he pointed to the parish rector to illustrate the concept of a corporation sole, and invoked parish churchwardens as an example of a lay civil corporation.Footnote 22 Blackstone's reliance on parochial examples underscores just how familiar these institutions were to English subjects living under the established Anglican Church. The case pitted the ascendant Democratic Republicans in the statehouse who supported disestablishment against the Congregationalists on Dartmouth's Board of Trustees. James Madison, Notes on Charters of Incorporation, [January?] 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. 72. For more on Tucker's connection to the case, see Buckley, Establishing Religious Freedom, 11622. 66. Newmeyer suggests that Dartmouth complete[d] the formulation of the public-private doctrine begun in Terrett. Newmeyer, Supreme Court Justice Joseph Story, 132. Christ Church in Alexandria, Virginia in 2020. 104. Without parsons, vestries, or churchwardens, there were no corporations to claim the property before the Revolution. The state could not rescind grants made to individuals in their natural capacity, but where the legislature creates an artificial person, and endows that artificial person with certain rights and privileges, either in respect to property, or otherwise, this must be intended as having some relation to the community at large.Footnote 79 Tucker contended that the basis for the legislature to grant rights and property to a corporation was fundamentally public; accordingly, the legislature retained the power to modify the relationship between the corporation and the community. Has data issue: false The Virginia Declaration of Rights proclaimed that no compact could deprive individuals of certain inalienable rights. Terrett v. Taylor, 13 U.S. (9 Cranch) (1815), 5152; and Trustees of Dartmouth College v. Woodward, 17 U.S. 518 (1819), 63539. After dwelling at great length on the unconstitutionality of Virginia's statutes, Story ultimately offered one farther objection to uphold the vestry's claim.Footnote 110 Because the Glebe Act had been passed after Christ Church and its glebe had become part of Washington, DC, Fairfax County officials lacked any power to seize the glebe. 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. Trustees of Dartmouth College v. Woodward, 17 U.S. 518 (1819), 59192; Terrett v. Taylor, 13 U.S. (9 Cranch) (1815), 52. 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 7. The missing link between these cases is incorporation. Currie discusses Terrett as one of the earliest expositions on the Establishment Clause. 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), 43, 5052. 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. Turpin v. Locket, 6 Call 113 (1804). Such sweeping logic was far from narrow and would have challenged numerous state acts of incorporation on the books in 1811. 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. 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. 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. 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. 6. 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. 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. (Philadelphia: Church Historical Society, 194752); and John Nelson, A Blessed Company: Parishes, Parsons, and Parishioners in Anglican Virginia, 1690- 1776 (Chapel Hill: The University of North Carolina Press, 2001). 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. Terrett v. Taylor, 13 U.S. (9 Cranch) (1815), 52. 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. This discussion of religious freedom was not tangential but was essential to Story's line of argument. 107. The Debates and Proceedings in the Congress of the United States, Vol. Finally, integrating customary incorporation into our narratives of early national law drastically reshapes our understanding of the rise of the corporation. 15. 27. In short, Story treated the post-1784 parish like any other private corporation. Joseph Story, Commentaries on the Constitution of the United States (Boston: Hilliard, Gray, and Company, 1833), 3:258, 260, 269, 533, 691. 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. But what was the fate of the many laws concerning the legal status and property of the Episcopal Church after independence? T. Ritchie, ed., The Revised Code of the Laws of Virginia (Richmond: Commonwealth of Virginia, 1819) (hereafter Revised Code), 79. 22, 105. https://www.loc.gov/item/91686243/. for this article. 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.
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