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  • Kellen Funk (a1)


Scholars frequently describe American religious disestablishment using commercial analogies, reckoning that states “privatized” religion or subjected churches to “free-market competition” by making them more like commercial businesses, yet this article demonstrates in part how churches pioneered many of the corporate devices that came to define American enterprise after the Civil War. Such descriptions are thus anachronistic. Antebellum jurists were not concerned about the similarity of churches to businesses, but rather their similarity to states, and the republican fear that churches could be rival sovereign states at first structured the law of disestablishment and incorporation. In most states, churches gained rights of general incorporation but faced significant limitations on their corporate governance and property holdings. In Dartmouth College, the Marshall Court reimagined religious societies as private owners who, instead of governing as rival sovereignties, administered property in trust under their charters. But with the vague charters of general incorporation, state judges were left without a definite source of law to adjudicate church disputes. This article argues that courts thus allowed trust law to function as a conflict of laws analysis: Judges treated religious doctrine as a foreign legal system with rules that could be ascertained and accorded respect in American courts. Such a move created a positive, corporate right of religious liberty that becomes obscured if one conceives of religious freedom only as an individual right to be asserted against the state.

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1 Records of the German Reformed Church are held at the New-York Historical Society (primarily covering 1758–1846) and the Reformed Church in America archives in New Brunswick, New Jersey (primarily 1846–1968). Records of the German Reformed Church of New York City, Membership, 1759–1767, New-York Historical Society Museum & Library, New-York Historical Society; In the Court for the Trial of Impeachments: Miller v. Gable, New-York Historical Society Museum & Library, Y1845, New-York Historical Society. Where no archive for litigation records or legal treatises is specified in this article, sources are available digitally in Google Books or the Gale Group's Making of Modern Law.

2 Facts recited in Gable v. Miller, 10 Paige Ch. 620, 627 (N.Y. Chan. 1844).

3 Hatch, Nathan O., The Democratization of American Christianity (New Haven: Yale University Press, 1991), 212 ; Olds, Kelly, “Privatizing the Church: Disestablishment in Connecticut and Massachusetts,” Journal of Political Economy 102, no. 2 (1994): 277–97, at 277.

4 Powell, Milton, ed., The Voluntary Church: American Religious Life, 1740–1865, Seen through the Eyes of European Visitors (New York: Macmillan, 1967); Finke, Roger and Stark, Rodney, The Churching of America, 1776–2005: Winners and Losers in Our Religious Economy, 2nd ed. (New Brunswick: Rutgers University Press, 2005); McGarvie, Mark, One Nation under Law: America's Early National Struggles to Separate Church and State (DeKalb: Northern Illinois University Press, 2004).

5 Maier, Pauline, “The Revolutionary Origins of the American Corporation,” William and Mary Quarterly, “Law and Society in Early America,” special issues, 50, no. 1 (1993): 5184 , at 51–53.

6 Diagram adapted from Hartog, Hendrik, Public Property and Private Power: The Corporation of the City of New York in American Law, 1730–1870 (Ithaca: Cornell University Press, 1983), 197 (citing Kent, James, Commentaries on American Law, 4 vols. (New York, 1826–1830), 2:222).

7 Kent, Commentaries on American Law, 219–29.

8 See McConnell, Michael W., “Establishment and Disestablishment at the Founding, Part 1: Establishment of Religion,” William and Mary Law Review 44, no. 5 (2003): 2105–208, at 2134–35.

9 See ibid., 2129–30.

10 See Cobb, Sanford H., The Rise of Religious Liberty in America: A History (New York: Macmillan 1902), 338–43. As late as 1775, a Presbyterian church's request for incorporation was flatly denied by New York's legislative assembly. See McConnell, “Disestablishment at the Founding,” 2134.

11 N.Y. Const. of 1777, art. XXXVIII.

12 See Smith, Douglas G., “The Establishment Clause: Corollary of Eighteenth-Century Corporate Law?Northwestern University Law Review 98, no. 1 (2003): 239302 , at 268–69n118.

13 1784 N.Y. Laws 613–18.

14 Ibid., 613.

15 Ibid., 613–14.

16 Ibid., 617.

17 Ibid., 618.

18 1813 N.Y. Laws 219.

19 Tyler, Ransom Hebbard, American Ecclesiastical Law: The Law of Religious Societies, Church Government and Creeds (Albany: William Gould, 1866), 5960 ; Gable, 10 Paige Ch. at 642–43.

20 1785 N.J. Laws 255–58; 1786–87 Del. Laws 10–14; 1790 Pa. Laws 40–43; 1796 N.C. Laws 93; 1802 Md. Laws ch. CXI; 1805 Ga. Laws 15–16; 1811 Mass. 387–89; 1813 Ky. Laws 211–12; 1817 Tenn. Laws 82; 1816 Oh. Laws 72–74; 1819 Ala. Laws 100–01; Me. Rev. Stat. 471–74 (1821); 1824 Ind. Laws 265–67; 1834 Ill. Laws 147–49; Ark. Rev. Stat. ch. 125 (1837); 1838 Miss. Laws 57–58; Mich. Rev. Stat. tit. 10 ch. 1 (1838); 1838–39 Wis. Laws 136. Rhode Island, Louisiana, and Missouri appear not to have adopted general incorporation legislation but nevertheless granted charters to all religious societies which sought them. See Benedict, David, A General History of the Baptist Denomination in America (Boston: Lincoln and Edmands, 1813), 1:449–50; A General Digest of the Acts of the Legislature of Louisiana (New Orleans: B. Levi, 1828), 1:149. On the exceptional case of Virginia, see Buckley, Thomas, Establishing Religious Freedom: Jefferson's Statute in Virginia (Charlottesville: University of Virginia Press, 2013).

21 S.C. Const. of 1778, art. XXXVIII; McGarvie, One Nation under Law, 141–2.

22 Executors of Joseph Burr v. Richard Smith, 7 Vt. 241 (1835). See also Weston v. Hunt, 2 Mass. 500 (1807); Christian Society in Plymouth v. Macomber, 46 Mass. 155 (1842).

23 In what became known as the trustee controversy, Roman Catholics in particular protested against the congregational structures of the New York law but ultimately submitted to its terms. See Carey, Patrick, “The Laity's Understanding of the Trustee System, 1785–1855,” Catholic Historical Review 64, no. 3 (1978): 357–76, at 371–72.

24 deWolfe Howe, Mark, The Garden and the Wilderness: Religion and Government in American Constitutional History (Chicago: University of Chicago Press, 1965), 44–7.

25 Wood, Gordon, The Creation of the American Republic: 1776–1787 (Chapel Hill: University of North Carolina Press, 1998), 373 , 581; Hulsebosch, Daniel J., “ Imperia in Imperio: The Multiple Constitutions of Empire in New York, 1750–1777,” Law and History Review 16, no. 2 (1998): 319–79.

26 Blackstone, William, Commentaries on the Laws of England (1776), vol. 4, chap. 8, p. 115 .

27 Quoted in McLoughlin, William, New England Dissent, 1630–1883: The Baptists and the Separation of Church and State (Cambridge, MA: Harvard University Press, 1971), 2:882–8.

28 Report of the Select Committee,” no. 293 in Documents of the Assembly (New York: E. Croswell, 1832), 4:12.

29 LaCroix, Alison, The Ideological Origins of American Federalism (Cambridge, MA: Harvard University Press, 2010), 81 .

30 Ibid., 25n51.

31 See McDonald, Forrest, States' Rights and the Union: Imperium in Imperio (Lawrence: University of Kansas Press, 2000); LaCroix, The Ideological Origins.

32 Gordon, Sarah Barringer, “The First Disestablishment: Limits on Church Power and Property before the Civil War,” University of Pennsylvania Law Review 162, no. 2 (2014): 307–72.

33 See ibid.

34 1784 N.Y. Laws 614; see also 1813 N.Y. Laws 218.

35 First Baptist Church v. Utica & S. R. Co., 6 Barb. 318 (N.Y. App. Div. 1848).

36 See Thompson v. New York & H. R. Co., 3 Sand. Ch. 625 (N.Y. Ch. 1846). See also, for instance, Horwitz, Morton J., “ Santa Clara Revisited: The Development of Corporate Theory,” West Virginia Law Review 88, no. 2 (1985): 175224 ; Millon, David, “Theories of the Corporation,” Duke Law Journal, no. 2 (1990): 201–62, 209; Friedman, Lawrence M., A History of American Law, 2nd ed. (New York: Simon & Schuster, 1985), 518–19. (“Once, nothing was so central to the legal nature of corporations at the doctrine of ultra vires.”).

37 Revised Statutes of the State of New York (1829), 2:466.

38 Angell, Joseph K. and Ames, Samuel, A Treatise on the Law of Private Corporations Aggregate (New York: Hilliard, Gray, Little & Wilkins, 1832), 410–3.

39 Dartmouth College v. Woodward, 17 U.S. (4 Wheat.) 518 (1819). On the history of the litigation, see McGarvie, One Nation under Law, 165–73.

40 Hartog, Public Property and Private Power, 192.

41 Dartmouth College, 17 U.S. (4 Wheat.) at 630.

42 Many have noted that Dartmouth College formed a turning point in the Federalist acceptance of disestablishment. Fearing moral disorder, Federalists tended to oppose disestablishment, and Federalist New England famously remained a regional holdout in the era of disestablishment. Disestablishment became more attractive, however, in the light of the circumstances surrounding Dartmouth College, in which a Republican legislature was seeking to uproot Calvinist orthodoxy in what was perceived to be a Federalist institution. See McGarvie, One Nation under Law, 182–5.

43 Dartmouth College, 17 U.S. (4 Wheat.) at 645.

44 Ibid., 631–44.

45 Ibid., 641.

46 Ibid., 642.

47 Ibid., 642–3.

48 First Baptist Church in Hartford v. Witherell, 3 Paige Ch. 296, 301 (N.Y. Ch. 1832).

49 Ibid., 304. The law of charitable trusts, with its heavy reliance on the intent of a voluntary donor, helped judges to make sense of the new religious corporations, but it proved inappropriate and unnecessary for governing for-profit corporations, and New York chancery developed a different set of rules. Less than a year after the Baptist case, Chancellor Walworth held in a suit against an insurance corporation that directors would not be held liable for a loss of funds where no fraud or abuse of process had been involved. See Scott v. Depeyster, 1 Edw. Ch. 518 (N.Y. Ch. 1833). The case reads like an early instance of the modern business-judgment rule, under which courts refuse to examine the content of corporate decision making and restrict themselves to ensuring that corporate management follows proper procedures. See Dodge v. Ford Motor Co., 204 Mich. 459 (1919); see also Omnicare, Inc. v. NCS Healthcare, Inc., 818 A.2d 914 (Del. 2003).

50 Miller v. Gable, 2 Denio 492, 565 (N.Y. 1845).

51 Ibid., 501.

52 Gable, 10 Paige Ch. at 629–30.

53 Ibid., 641–44.

54 Miller, 2 Denio at 499. Of course, since the German Reformed Church owned all of its own property, the Dutch classis had no material recourse whereby it could secure the loyalty of the congregation.

55 See ibid., 508.

56 Ibid., 492.

57 The history of the litigation is rehearsed in A Vindication and Defense of the German Reformed Church and Its Pastor (New York: Cornell University Library, 1851) (New-York Historical Society).

58 Graham was also one of the earliest university professors of New York legal practice and expert in chancery procedure. See Graham, David Jr., A Treatise on the Organization and Jurisdiction of the Courts of Law and Equity in the State of New York (New York: Halsted and Voorhies, 1839).

59 Miller, 2 Denio at 509.

60 Ibid., 497.

61 Of course under this standard the trustees' lawyers argued that the court should have found for the trustees, for the Lutheran ministers called by the trustees had “preached the doctrines and inculcated the faith of the German Reformed Church, as accepted, practiced and believed by the congregation of that church,” or at least a majority of that church. Ibid., 498.

62 Ibid., 524.

63 Ibid., 525.

64 Ibid., 509; Trial of Impeachments: Miller v. Gable, 92–335.

65 To quote a sample of the vice chancellor's theological analysis: “Zuingle [sic] held, undoubtedly, that every thing took place according to the predestination of God. But he explicitly held that unbaptized infants were saved; that the heathen were as much within the efficacy of atonement as others; and that the death of Christ was an expiation for the sins of the whole world, not confined to the elect to whom Christ is made known.” Miller, 2 Denio at 529.

66 Gable, 10 Paige Ch. at 636.

67 Ibid., 634.

68 Ibid., 640.

69 See Clark, Christopher, “Confessional Policy and the Limits of State Action: Frederick William III and the Prussian Church Union, 1817–40,” Historical Journal 39, no. 4 (1996): 9851004 .

70 See Sehat, David, The Myth of American Religious Freedom (Oxford: Oxford University Press, 2011); Gordon, Sarah Barringer, The Spirit of the Law: Religious Voices and the Constitution in Modern America (Cambridge, MA: Harvard University Press, 2010).

71 See Green, The Second Disestablishment: Church and State in Nineteenth-Century America (Oxford: Oxford University Press, 2010).

72 Sehat, Myth of American Religious Freedom; People v. Ruggles, 8 Johns. 290, 297–8 (N.Y. 1811); Story, Joseph, “Christianity a Part of the Common Law,” American Jurist and Law Magazine 9, no. 18 (1833): 346–8.

73 See Story, Commentaries on the Conflict of Laws (Boston: Hilliard, Gray, and Co., 1834).

74 Story, Conflict of Laws, 193–4; Pearsall v. Dwight, 2 Mass. 84 (1806); De Sobry v. De Laistre, 2 H. & J. 191 (Md. 1807).

75 Examination of Philip Milledoler, in Trial of Impeachments: Miller v. Gable, 100–1.

76 And as Story explained, foreign law had to be proved just as any other fact. That is, judges could not simply declare what foreign law was, counsel had to offer written proofs and witness testimony under examination. Story, Conflict of Laws, 523–32.

77 This analysis derives concepts from Hurst's, J. Willard seminal Law and the Conditions of the Freedom in the Nineteenth-Century United States (Madison: University of Wisconsin Press, 1956), though Hurst himself was not particularly concerned with examining the history of religious freedom.

78 See Cover, Robert M., “The Supreme Court 1982 Term—Foreword: Nomos and Narrative,” Harvard Law Review 97, no. 4 (1983): 468 ; Tomlins, Christopher, Law, Labor, and Ideology in the Early American Republic (New York: Cambridge University Press, 1993), 25–6.

79 Story, Conflict of Laws, 4.

80 On the use of custom and immemoriality in judicial inquiry, see Parker, Kunal M., Common Law, History, and Democracy in America, 1790–1900: Legal Thought before Modernism (New York: Cambridge University Press, 2011).

81 Miller, 2 Denio at 549.

82 Ibid., 540–70. The final decision of the Court of Errors was 14-3 favoring reversal.

83 First Baptist Church in Hartford, 3 Paige Ch. at 296.

84 Kniskern v. Lutheran Churches, 1 Sand. Ch. 439, 510 (N.Y. Ch. 1844).

85 Lawyer v. Clipperly, 7 Paige Ch. 281, 284 (N.Y. Ch. 1838).

86 For other representative cases from New England, the Mid-Atlantic, and the South, see A Full Report of the Case of Stacy, Decow, and Joseph Hendrickson vs. Thomas L. Shotwell (Philadelphia: P.J. Gray, 1834); Report of the Case of Earle vs. Wood (Boston: Little, Brown & Co., 1855); Wilson v. The Presbyterian Church of John's Island, 19 S.C. Eq. (2 Rich. Eq.) 192 (1846). For a partial list of the many other cases of this type, see Lincoln, Charles Z., The Civil Law and the Church (Cincinnati: Abingdon Press, 1916).

87 Appeal to the Court of Errors required that the Court of Chancery compile the entire record of the case and publish it as a single volume. See Trial of Impeachments: Miller v. Gable. Further, as litigation tends to beget litigation, so in this case the pro-classis Reverend John Ebaugh had a falling out with the Dutch Reformed classis in later years over the unwillingness of the classis to reimburse Ebaugh for litigation and other expenses incurred during the 1840s. A spate of further litigation and counter-recriminations in the press sheds further light on the condition of the German Reformed Church during the lengthy Gable suit. See A Vindication and Defense of the German Reformed Church; A True Report of the Last Trial of Rev. J. S. Ebaugh (New York: n.p., 1852) (New-York Historical Society).

88 Robertson v. Bullions (Robertson II), 11 N.Y. 243 (1854).

89 Robertson v. Bullions (Robertson I), 9 Barb. 64, 76 (N.Y. Ch. 1850).

90 Ibid., 76–8.

91 Ibid., 87–93.

92 Ibid., 123–6.

93 Ibid., 148–50.

94 Robertson II, 11 N.Y. at 243.

95 Ibid., 247.

96 Ibid., 250.

97 Howe, Garden and the Wilderness, 48–9.

98 Joseph Story described this body of law in “Foreign Judgments,” in Commentaries on the Conflict of Laws.

99 Although New York began to extend general incorporation to other industries as early as 1811, banks and railroads continued to be chartered through special enactments of the legislature well into the nineteenth century. For an example of a routine, yet detailed, bank incorporation, see 1863 N.Y. Laws 290–5.

100 See Wright, Robert E., “Capitalism and the Rise of the Corporation Nation,” in Capitalism Takes Command: The Social Transformation of Nineteenth-Century America, ed. Zakim, Michael and Kornblith, Gary J. (Chicago: University of Chicago Press, 2012), 145–68.

101 A recent work pursuing this method is Compton, John W., The Evangelical Origins of the Living Constitution (Cambridge, MA: Harvard University Press, 2014).

102 Howe, Garden and the Wilderness, 45.

103 Smiddy, Linda O. and Cunningham, Lawrence A., Corporations and Other Business Organizations: Cases, Materials, Problems, 7th ed. (2010), 228–31; O'Melinn, Liam Séamus, “Neither Contract nor Concession: The Public Personality of the Corporation,” George Washington Law Review 74, no. 2 (2006): 201–59, at 218n73.

104 Mark, Gregory A., “The Personification of the Business Corporation in American Law,” University of Chicago Law Review 54, no. 4 (1987): 1441–83, at 1453–4.

105 Muzzy v. Wilkins, 1 Smith 1, 13–14 (N.H. 1803).

106 For the turn towards issues of shareholder governance, see Majewski, John, “Toward a Social History of the Corporation: Shareholding in Pennsylvania, 1800–1840,” in The Economy of Early America: Historical Perspectives and New Directions, ed. Matson, Cathy (State College: Penn State University Press, 2006), 294326 ; Dunlavy, Colleen A., “From Citizens to Plutocrats: Nineteenth-Century Shareholder Voting Rights and Theories of the Corporation,” in Constructing Corporate America: History, Politics, Culture, ed. Lipartito, Kenneth and Sicilia, David B. (Oxford: Oxford University Press, 2004), 6693 .

107 See above, note 89. For a foundational statement of law as semiautonomous, see Moore, Sally Falk, “Law and Social Change: The Semi-Autonomous Social Field as an Appropriate Subject of Study,” Law and Society Review 7, no. 4 (1973): 719–46.


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