Abstract
This article clarifies the precise connection between two early national Supreme Court decisions, the little-known Terrett v. Taylor (1815) and the landmark Dartmouth College v. Woodward (1819). The missing link between these cases is incorporation. Both disputes arose in the turmoil of post-Revolutionary disestablishment as state legislatures directly challenged the rights of colonial corporations. 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. After the Revolution, Virginia's legislature disestablished the Anglican Church, disregarded its customary incorporation, revoked its post-revolutionary act of incorporation, and seized parish property. These radical policies set Virginia apart from other states and made these disputes a critical litmus test for the rights of all corporations. 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. Virginia's highest court upheld these policies as lawful, but the US Supreme Court's rejected them as unconstitutional in Terret. The Court's ruling in Terrett set a significant precedent for the standing of all private corporations vis-a-vis state legislatures and laid the groundwork for the Court's decision in Dartmouth College.
Highlights
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.”[8] One
Classic accounts of church and state in Virginia detail the legislation that enforced Anglican conformity, penalized religious dissent, and knit together religion and government but make no mention of how common law conferred significant power to Anglican parishes through incorporation.[26]
Dartmouth College, so often framed as a landmark case because it enabled the rapid transformation of the American economy, was itself the byproduct of another sweeping transformation, the disestablishment of religion
Summary
The Great Chief Justice: John Marshall and the Rule of Law (Lawrence: The University of Kansas Press, 1996) None of these works explore how Marshall’s experience as a legislator during Virginia’s disestablishment shaped his decision in Dartmouth College. In Turpin, Virginia’s highest court had authorized the legislature to disregard customary incorporation, revoke a statute of incorporation, and confiscate parish property 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. 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 These cases push historians to understand disestablishment not just as a movement that secured individual rights and as a process with significant implications for early national corporations. Long-standing hesitancy of scholars to recognize parishes and other common law corporations as “true” corporations are a legacy of these disputes
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