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. James Madison and John Marshall, both members of the House of Delegates, voted in favor of the law, which reaffirmed parishes claims to their pre-Revolutionary property and recognized the formerly established church as a newly reorganized, private corporation.Footnote 48 The legislature tabled general incorporation and postponed voting on a general assessment until the following year.Footnote 49, Critics initially attacked the specifics of the 1784 Incorporation Act without raising fundamental objections to religious incorporation. First, these disputes reveal that the outcome of Dartmouth College was not a foregone conclusion, no matter what Webster argued. 127. 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. Philip Hamburger, Separation of Church and State (Cambridge, MA: Harvard University Press, 2009), 182n66. In short, Story treated the post-1784 parish like any other private corporation. 36. Justice Bushrod Washington's concurring opinion echoed Webster's oral arguments. 103. Joseph Story, Commentaries on the Constitution of the United States (Boston: Hilliard, Gray, and Company, 1833), 3:258, 260, 269, 533, 691. 51. Scholarship on Terrett, and early American law more broadly, has overlooked common-law corporations.Footnote 15 Historians of colonial Anglicanism likewise neglect the customary incorporation of the established church.Footnote 16 The near absence of this topic in the literature has obscured its significance. 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. The Debates and Proceedings in the Congress of the United States, Vol. Putnam's Sons, 1910), 1:77. One of the only previous citations to this document appears in Mary Sarah Bilder, James Madison, Law Student and Demi-Lawyer, Law and History Review 28 (2010): 411 n.116. Tucker relied on Dartmouth College's distinction between private and public corporations while flatly rejecting the rationale of Terrett, and allowed glebe confiscation to proceed. 25. Trustees of Dartmouth College v. Woodward, 17 U.S. 518 (1819), 650. See An Act Concerning the District of Columbia, 2 Stat. 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. Total loading time: 0 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. The Christ Church glebe stood in the part of Fairfax County, Virginia that was ceded to form Washington, DC. The exclusive legacy of the establishment's customary incorporation and its material wealth hung over these post-Revolutionary debates in Virginia. While Dartmouth College had been incorporated by a royal charter in colonial New Hampshire, the litigant in Terrett, a parish vestry, had been incorporated under common law in colonial Virginia. 119. 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. Bushrod's Washington's 1797 opinion about the glebe lands is quoted in Mays, Edmund Pendleton, 2:404n14. Terrett v. Taylor, 13 U.S. (9 Cranch) (1815), 50. 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. Such sweeping logic was far from narrow and would have challenged numerous state acts of incorporation on the books in 1811. 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. In the early 1800s, the Supreme Court decision associated with John Marshall. WebIn 1816, the New Hampshire legislature attempted to change Dartmouth College-- a privately funded institution--into a state university. James Madison to Thomas Jefferson, January 9, 1785, Founders Online. 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. Whereas Terrett afforded Story an initial opportunity to evaluate the vested rights of corporations, Dartmouth College allowed the Court to establish the sanctity of corporate charters. New Hampshire and Virginia directly challenged colonial corporate entitiescolleges and churcheswhile overhauling the relationship between religion and government. Trustees of Dartmouth College v. Woodward, 17 U.S. 518 (1819), 59192; Terrett v. Taylor, 13 U.S. (9 Cranch) (1815), 52. None of these works explore how Marshall's experience as a legislator during Virginia's disestablishment shaped his decision in Dartmouth College. The separation of church from state raised difficult questions about how to remove the legal advantages of the former religious establishment, including customary incorporation, and whether it was permissible to strip private corporations of their charters and property. 5. Perhaps the Anglican parish's most visible exercise of corporate power was its acquisition of valuable property. None of the leading studies of colonial Anglicanism mention the corporate status of parishes under common law. English common law also dictated the legal standing of the Anglican establishment in colonial Virginia. 31. 73. 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. 1786, Founders Online. In colonial Virginia, rectors, churchwardens, and vestries of the established Anglican Church were incorporated under common law. Currie, The Constitution in the Supreme Court, 14041. Newmeyer stated that Marshall cited Terrett in Dartmouth College, but does not elaborate any further. 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 Eckenrode, Separation of Church and State in Virginia, 120. 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. 81. Monarchy, aristocracy, religious establishment, entail, primogeniture, and a host of cornerstones of pre-Revolutionary law fell victim to this movement. Neither Marshall nor Washington, the two Virginian justices, spoke on behalf of the Court in Terrett. 72. 8. R, the context of the document and Marshall and Randolph's legal partnership make Randolph's identity almost certain. 1, 44344, LVA. The missing link between these cases is incorporation. WebIn the first half of the nineteenth century, internal improvements: were supported mainly by people in the West. Michael McConnell characterized Madison's veto message as narrow and suggested that this veto should not be interpreted as opposing all incorporations of religious bodies. However, Madison objected to the bill because it outlined sundry rules and proceedings relative purely to the organization and polity of the church incorporated. Therefore, any act of incorporation for a religious society that specified the rules of internal denominational governance would have qualified as a form of religious establishment under the terms that Madison laid out in this veto message. In Turpin, Virginia's highest court had authorized the legislature to disregard customary incorporation, revoke a statute of incorporation, and confiscate parish property. Terrett v. Taylor, 13 U.S. (9 Cranch) (1815), 49. See examples of five parish lawsuits in the New Kent County Court listed in C.G. 19. 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. The 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. 31 square miles on the southwestern bank of the Potomac River, formerly part of Fairfax County, VA, became Alexandria County, DC. 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. 52. It supported capitalism, where privately owned companies can compete in a free market (without government controls) 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. Daniel Webster, who argued on behalf of his alma mater, invoked Terrett repeatedly in his arguments before the Court. Their advocacy of such a radical view is best understood in light of the long history of the Anglican Church's exclusive access to incorporation. 32. Newmeyer may have been referencing this ambiguous line about the Court's prior decisions. Dueling interpretations of corporations ultimately underlay the differences between Tucker's and Story's rulings in Turpin and Terrett. Recognizing the connections between Virginia's disestablishment and Dartmouth College gives scholars the context that Marshall obscured in his opinion and elucidates why Terrett anticipated Dartmouth College.Footnote 17. (Oxford: Clarendon Press, 1770), I:472. McConnell, The Supreme Court's Earliest Church-State Cases, 13. Story's reasoning in the two cases was identical; namely, that the state could not take vested property from corporate bodies. This ambiguity leaves scholars with no choice but to rely on historical context to reconstruct Marshall's reasoning in Dartmouth College. In May of 1784, the United Clergy of the Presbyterian Church sent a memorial to the assembly protesting that the episcopal church is actually incorporated, and known in law as a body, so that it can receive and possess property for ecclesiastical purposes, without trouble or risk in securing it, while other Christian communities are obliged to trust to the precarious fidelity of trustees chosen for the purpose.Footnote 45 Virginia's Presbyterian clergymen argued that customary incorporation still bestowed the Episcopal Church with substantial power , and therefore they sought an act of incorporation for their church. The Court became the final Terrett v. Taylor, 13 U.S. (9 Cranch) (1815), 5153. Blunting the Revolution's Radicalism from Virginia's District Courts, The Virginia Magazine of History and Biography 106 (1998): 41942Google Scholar. Webchapter 9 history review. 84. Library of Congress, Geography and Map Division. 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. 31 January 1820, Founders Online. Chief Justice Marshall had personally taken part in these debates while serving as a delegate in Virginia's legislature in the 1780s. Virginia's parish vestries and churchwardens raised an annual levy, punished moral crimes, and administered poor relief. 106. 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. See Mays, Edmund Pendleton, 2:404n14; Albert J. Beveridge, The Life of John Marshall (Boston: Houghton Mifflin, 1919) 4:243; and Buckley, Thomas E., After Disestablishment: Thomas Jefferson's Wall of Separation in Antebellum Virginia, The Journal of Southern History 61 (1995): 450n13CrossRefGoogle Scholar. 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. See Falwell v. Miller, 203 F. Supp. 58. Part of Terret's obscurity stems from its omission from Chief Justice Marshall's decision in Dartmouth College. 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. Both of his opinions relied on similar language, precedents, and examples. 2d 624, 63233 (W.D. 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. Marshall voiced a commitment to protecting vested rights and preventing legislative intrusion by voting to support the resolution against glebe confiscation in 1789.
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