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. WebThe Supreme Court ruled in Johnson v. McIntosh (1823) that Indians had a basic right to their tribal lands. 71. Chamberlayne, ed., The Vestry Book of Saint Peter's Parish, 312. 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. 51. Va. 2002) (The portion of 14(20) of Article IV of the Constitution of Virginia which reads, The General Assembly shall not grant a charter of incorporation to any church or religious denomination, violates Plaintiffs' First Amendment rights to the free exercise of their religion made applicable to the States by the Fourteenth Amendment). (Q006) Southern slave states sought to protect their national political interests by. Tucker, Henry St. George, The Opinion of Chancellor Tucker in the Case of Selden and Others against the Overseers of the Poor of Loudoun and Others, in Commentaries on the Laws of Virginia, 3rd edition (Richmond: Printed by Shepherd & Colin, 1846), 453Google Scholar. Duvall is perhaps best known for his reticence on the Court, and therefore, it seems unsurprising that he left no explanation of his dissent. 83. WebIn 1816, the New Hampshire legislature attempted to change Dartmouth College-- a privately funded institution--into a state university. 128. 91. 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. Photograph by the author. The vestry of Fairfax Parish had purchased its glebe in 1770 from Daniel Jennings and his wife using money raised from parishioners.Footnote 108 Although the corporate existence of colonial parishes rested on common law, Story argued that the Revolution had in no way impaired the corporation's standing or interfered with the title to this property. 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). All three casesTurpin, Terrett, and Dartmouthinvolved colonial corporations enmeshed in the fallout of post-Revolutionary disestablishment. 64. 88. 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. Lamoreaux and Novak (Cambridge, MA: Harvard University Press, 2017), 3, 9; Justice Ruth Bader Ginsburg quoted from Marshall's decision in Dartmouth College in her dissent in Burwell v. Hobby Lobby, 573 U.S. 682 (2014). Adjudicating the bulwark of rights that protected corporations was bound up in trying to dismantle the system of religious establishment that so many had come to view as fundamentally anti-republican. 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. New Hampshire and Virginia directly challenged colonial corporate entitiescolleges and churcheswhile overhauling the relationship between religion and government. John Marshall opposed these policies while serving as a delegate in Virginia's legislature, and his views on these issues prefigured his opinion in Dartmouth College. 59. The increasing number of religious dissenters, along with intense anti-British sentiment during the war, eroded support for the religious establishment following the outbreak of the Revolution.Footnote 43 In 1782, the American branch of the Anglican Church established itself as the Protestant Episcopal Church, but a new name was not enough to convince wary Americans to rejoin its ranks. Town of Pawlet v. Clark, 13 U.S. 292 (1815). 81. Terrett v. Taylor, 13 U.S. (9 Cranch) (1815), 43, 48. T. Ritchie, ed., The Revised Code of the Laws of Virginia (Richmond: Commonwealth of Virginia, 1819) (hereafter Revised Code), 79. District of Columbia. An appeal sent by the Baptist General Committee declared that churches could only be regulated by the Law of God and not the Law of the State; by the acts of the Apostles, and not by the Acts of an Assembly.Footnote 56 The petitioners invoked Article 16 of Virginia's Declaration of Rights to argue that if religion can be directed, only by reason and conviction; not by force and violence, we cannot see with what propriety the General Assembly could incorporate the Protestant Episcopal Church.Footnote 57 These wide-ranging criticisms of the 1784 Act gave rise to a fundamental opposition to all forms of incorporation for religious societies, a development that did not happen in other states.Footnote 58, In the midst of these debates over repeal, Madison heard the expertise of two of Virginia's leading legal minds: Edmund Randolph, then Governor of Virginia and future United States Attorney General and Secretary of State, and John Marshall, member of Virginia's legislature and future Chief Justice of the United States Supreme Court.Footnote 59 One brief page of notes remains extant from this meeting, which has largely escaped the attention of constitutional scholars.Footnote 60 Although hurried and abbreviated, the document captures Randolph and Marshall's resounding objections to repealing a charter of incorporation. None of the leading studies of colonial Anglicanism mention the corporate status of parishes under common law. R.A. Brock, ed., The Vestry Book of Henrico Parish, Virginia 1730-'73 (Richmond, VA: 1874), 148. Terrett v. Taylor, 13 U.S. (9 Cranch) (1815), 50. Constitutional scholars most often discuss the case as a forerunner to Dartmouth College, but a few have found Story's opinion in Terrett puzzling or gratuitous.Footnote 8 One commenter observed that despite apparently being a Contract Clause case, it is hard, from the case's facts, to know just what contract a state had impaired.Footnote 9 Another interpreter argued that Terrett is best understood as a Takings Clause case whereas others suggest that Story's opinion rested on natural law with little grounding in the Constitution.Footnote 10 None of these discussions adequately explain the through line from Terrett to Dartmouth.

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