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The first disestablishment: limits on church power and property before the Civil War.

   A. Seeing Like a Disestablished State: Regulation Through
   B. Incorporated Societies
      1. The Nature of "Religious Property"
      2. The Law of Religious Property and Lay Governance
    A. A Regulated Market for Faith
    B. Going to Law
    C. The Trouble with Conscience
     A. Trusteeism
     B. Conscience over Clergy
    A. Troubled by Conscience
    B. The Question of Localism
    C. Mere Money


The rights and responsibilities of religious institutions are hotly debated in the early twenty-first century. Liberal separationists argue that religious organizations should be subject to secular laws regarding labor, health care (including access to birth control), child protection, and more. (1) Their opponents counter that the ideals of "church autonomy" or "the freedom of the church" exempt religious organizations from legal, administrative, or legislative oversight. (2) The standoff is exacerbated by the opposing interpretations of history on offer. (3) Former presidential candidate, talk show host (and historian) Newt Gingrich has called the Affordable Care Act's requirement that all secular employers--regardless of their owners' religious affiliations and convictions--provide birth control insurance coverage for employees "the most outrageous assault on religious freedom in American history" and asserted that "every time you turn around the secular government is shrinking the rights of religious institutions in America." (4)

From the other side of the spectrum, the invocation of history is equally strident. For example, Americans United for Separation of Church and State has battled against the claim that the government has undermined church autonomy. From this group's perspective, strict separation of church and state is "good for America" and "good for religion" because it prohibits government involvement with religious organizations. (5) American history, they argue, demonstrates that Presidents and right-thinking Americans alike have always supported their interpretation of disestablishment. (6)

This back-and-forth highlights the sharply differing views among activists, scholars, and politicians regarding the tradition of special deference (or lack thereof) given to religious organizations. The Hobby Lobby case, set for argument at the Supreme Court in early spring 2014, is just the latest incarnation of these battles. (7) The question is as old as the nation, however. The rights of individuals versus organizational rights have been essential to the development of the law of religion in America. The place of religious organizations was keenly debated as a key component of disestablishment. Yet we know almost nothing about the experience of such organizations in our nation's history.

Surprisingly enough, scholars have not studied how disestablishment actually worked in its first decades. What did it mean for a state to be disestablished, rather than just to announce that religious establishment was now prohibited? That question animates this Article, which builds on the prior work of scholars in the field of church and state, but also looks for answers in places others have ignored. The gradual commitment to disestablish by the states, for example, has been the subject of extensive and impressive scholarly research for at least the past century. (8) We have long known in detail the stories of Virginia and Massachusetts, the former as an exemplar of a particularly clear commitment to disestablish early in 1786, and the latter as the last holdout, disestablishing only in 1833. (9) The relationship of the federal religion clauses to the experience of the states has also been the object of considerable scholarly and judicial attention. (10) Scholars disagree over what the states' experiences in the lead-up to disestablishment tell us about current conflicts. (11) But few researchers have probed what religious liberty meant on the ground in the states that carried it out, (12) and none have assembled an overview of the widespread legal powers and limitations imposed on churches by states once they had officially severed church and state.

One explanation for the dearth of scholarship is that we have overlooked the implementation of disestablishment. The decision to disestablish represented an end in some ways but a beginning in many others. (13) It was the prelude to a gradual yet broad-ranging, nationwide attempt to limit the ability of religious organizations to acquire and hold wealth. Equally important, states imposed strict controls on church governance, (14) mandating the election of lay trustees to hold and manage church property. The desire to keep religious organizations both limited in size and firmly under lay control was key to the ongoing administration of disestablishment in the states. The rules were by no means identical, but they resembled each other enough to create a rough system. This first system of disestablishment imposed discipline on religious institutions, especially in terms of property and internal governance, based on concerns for individual conscience and lay control.

Ironically, then, disestablishment set the stage for extensive legislative and judicial oversight of churches and other religious organizations. Even a brief review reveals an astonishing array of government regulation in the period between the end of formal establishment and the Civil War. Disestablishment, it seems, was not widely understood as a mandate for government deference to religious institutions or the separation of those institutions from government, at least according to today's understanding of those terms. Quite the opposite--during the foundational period of American law, deep government involvement in religious institutions, rather than strict separation or respectful support, was characteristic and widely accepted.

This Article excavates this first system of disestablishment, recovering and analyzing what has long been hidden in plain sight in state statutes and related judicial decisions. The most startling aspect of this history is the direct control states exercised over religious organizations' property and power through statutes allowing "religious societies" (as they were commonly called) to incorporate. Consider, for example, the limitations on wealth imposed by most states, which capped real property acreage: two acres in Virginia, Maryland, and the congressionally governed District of Columbia; four acres in Kentucky; and five acres in Pennsylvania, Georgia, and Tennessee. (15) Limits were also imposed on total annual income: $1000 in New Hampshire; $2000 in Maryland; and $3000 in Maine, Wisconsin, and Minnesota. (16) Similar restrictions were enacted around the country, (17) revealing that the practice was neither regional nor tied to the religious convictions of legislators in particular jurisdictions. Instead, the pattern reveals something much more interesting: a system constructed by states to meet an unprecedented development--that is, the need to manage disestablishment.

Part I details the background of this process. It first investigates the precedents for state restrictions and the pressures disestablishment placed on legislatures. It then discusses statutory and constitutional limits imposed on church property and income after formal disestablishment in return for the privilege of incorporation, and explores the ways courts interpreted these restrictions. Part II focuses on how disestablishment in the states also empowered the laity, giving congregants new power to control church assets, and thus to dictate church policy. Bitter disputes over slavery, personal morality, and individual conscience enmeshed religious organizations in litigation, as these newly empowered congregants fought with each other over the demands of faith. Part III probes the ways in which fractious groups of lay members challenged the role of clergy in religious life and practice--especially, but not only, in Roman Catholic communities. Clerics and religious hierarchies came under fire, as trustees and their supporters argued that lay governance meant pastors now served at the pleasure of the congregation. The empowerment of the laity and incorporation of religious organizations also meant that once-internal disputes, such as arguments over the "souls of black folk," (18) now had legal as well as religious salience. Part IV examines how slavery fractured religious life along regional lines. Disestablishment, in this history, was critical--first to the flourishing of pluralism and then to the collapse of religious denominations, which were torn apart by the strident new powers of their congregants.

The restrictions imposed on church wealth and power before 1860 and the law of disestablishment as developed in state courts challenge the notion that institutional autonomy was a meaningful or common concern among early Americans or their governments. The lessons of this history are many, but none sustains the notion that either strict separationism or "the freedom of the church" accurately accounts for how disestablishment was understood and implemented from the Revolution to the Civil War. Present-day activists from both sides of the debate who seek to ground their claims in tradition must instead grapple with a much different, more surprising legacy.


By the early 1830s, all states--the original thirteen colonies and new states admitted after independence--were formally disestablished via constitutional provision. States admitted thereafter included such provisions in their initial constitutions. (19) The process was not identical in each state: some of the original states and many of the new ones had never had formal establishments. But the movement was powerful, and within a generation after the Revolution, the idea of an established religion seemed to be a fundamental denial of liberty and corruption of genuine faith. (20) Those who implemented disestablishment reflected similar attitudes toward liberty and religious freedom. Regulating religious institutions, in other words, was a practice widely believed to serve individual conscience.

Few scholars have investigated the history of disestablishment beyond the moment at which it took effect, and most have relied on a smattering of cases or the high-flown rhetoric of national leaders. (21) Careful attention to the statutory record, however, reveals a great deal of activity, most of it aimed at carefully limiting the powers of religious organizations and empowering their individual members. As a result, these statutes focused chiefly on congregants, not clerics. This is a forgotten world, buried in part by time, but also by determined opposition.

To recover this world, we must peel back the layers to expose the interests of those who helped paper over the truth. By the late nineteenth century,

for example, proponents of increased wealth and power for religious institutions had decided that disestablishmentarian restrictions were best undermined by painting them as foreign. In 1875, U.S. Supreme Court Justice William Strong conceded to an audience at Union Theological Seminary that religious organizations' power to acquire wealth was sharply limited. (22) Strong claimed that these limitations were imposed by state legislatures motivated by "inherit[ed] ... jealousy" of extensive landholding by "ecclesiastical persons and religious houses" in Britain. (23) Known as mortmain laws, these medieval statutes restricted the capacity of religious institutions to acquire property by taking gifts of land from feudal lords and thus revenue from the king (in the form of taxes on a lord's death or a ward's marriage--levies never recoverable from religious organizations that neither died nor married). (24)

As a result of this English heritage, Strong observed complacently, statutes in some states provided that "no religious society shall be incorporated, with power to hold property yielding a greater annual income than a specified sum." (25) Strong had a dog in the fight: he supported reestablishing Christianity as the country's religion. (26) But his backhanded dismissal of restrictions on church property as leftover gasps of mortmain in the New World apparently discouraged subsequent researchers. During the century and more since Strong's speech, scholars have assumed his credibility on this subject. It is high time to correct the record.

Indeed, Justice Strong was mistaken--restrictions on church property holding in America took many different forms, including constitutional provisions as well as legislation. The breadth and variety of such restrictions make it clear that something more than "inherited jealousy" was at work. The motivations for these restrictions also differed sharply from the British monarch's desire for tax revenue, which undergirded English mortmain. In the new United States, state statutes and constitutional provisions governing religious institutions accomplished two related but distinct objectives. On the one hand, they imposed limits on religious authority, and on the other, protection for individual religious decisions and sensibilities. In other words, religious liberty was tightly bound up with institutional discipline. To protect individual liberty, churches were constrained in their capacities to acquire wealth and broadly subjected to lay control.

American mortmain differed from its English ancestor in key respects, therefore, as it embodied the desire to empower individual choice rather than secular government or its officials. The individual states now administered a landscape in which the effects of an earlier establishment were still visible and questions about how to address the wealth of religious organization--in terms of land and money--became pressing. (27) The King's church no longer had an official role in an independent America, and consequently the notion that property regulation was the surest route to achieve individual liberty was understood as a distinct product of independence from Britain. In this sense, ancient English property restrictions were repurposed in a new environment, salvaged from the remembered law of Britain, but grafted onto a new set of distinctly American structures and concerns.

At the same time, however, American jurists and legislators used the vocabulary of the older legal regime. They called religious organizations "mortmain institutions" (28) and noted that religious property "subtracted from the mass of transmissible wealth." (29) According to an early legal treatise on American corporate law, the ecclesiastical interests that had so frustrated Henry VIII were antithetical to a republican government. (30) Yet religious institutions adapted quickly and successfully to the new environment--so successfully, in fact, that states granted them significant benefits, while also imposing significant restraints.

The key to the change was the corporation. Long before businesses were granted the privilege of incorporation, religious societies popularized the corporate form for Americans. (31) In most American jurisdictions, religious corporations were ubiquitous by the early nineteenth century, flourishing in the new regime of disestablishment. In Pennsylvania, for example, religious societies dominated the list of corporations formed between 1777 and 1791, when Pennsylvania enacted a general incorporation statute (fifty separate bills of incorporation, out of seventy-seven bills total). (32) Even including townships and other private institutions, then, religious societies made up almost two-thirds of all new ventures. The preamble to the 1791 legislation explained that the representatives of the Commonwealth found their energies were taxed by the onslaught of such bills. (33) Early on, special incorporation acts in Pennsylvania limited the amount of property that a given religious corporation could own, frequently in terms of annual income calculated in bushels of wheat. (34) By the time the general incorporation legislation was enacted, these limits were phrased in monetary terms--almost always 500 [pounds sterling]. (35)

A. Seeing Like a Disestablished State: Regulation Through Incorporation

Religious societies became the quintessential private associations, simultaneously supported and disciplined by states. As in Pennsylvania, other state legislatures gradually developed a template for the formation of such institutions and, in the process, set the tone for disestablishment. The private law of religion--that is, the world of contracts, deeds, donations, mortgages, bank accounts, and so on, all owned and managed in corporations--thus became the source of the ongoing management of disestablishment. In this sense, the religious corporation was not an element of establishment, but rather a manifestation of the people's religious liberty. Such a corporation, at least in theory, reflected the integration of shared political and social interests in religion, tucked under the enabling authority of state legislatures and enforced by the judiciary. (36)

In the service of a genuinely radical departure from tradition, then, disestablishment forced states to articulate the principles of a political world without the mainstay of divine sanction. In the 1790s, the French Revolution provided a cautionary tale of disestablishment run amok; most Americans found themselves more sanguine than the French citoyens. (37) In many jurisdictions, Americans had distanced themselves from the Church of England by the opening days of the Revolution; in some colonies, the rejection came considerably earlier. (38) Patriots in the Revolutionary era nonetheless found attacks on the role of the King's church in oppressing colonists to be a handy tool, first in rebellion and then in arguing for disestablishment. (39) The arrival of formal disestablishment, therefore, was in one sense a settling device--rendering official and mandatory a religious compromise based on the erosion of the official power of the King's church, which at base had been associated with the King's blessing. In other ways, disestablishment was unsettling, for it did not spell out what should happen after the rupture with longstanding tradition. To fill the yawning gap between the ideology of disestablishment and the need for organization, American legislatures did what they often did--they "borrowed" English precedent, but they modified the tradition, molding it to their own tastes and interests. (40)

Disestablishment thus generally had a more benign aspect in America than in France. This was in part due to the relative weakness of establishment in some colonies even before the Revolution, and in part due to the

citation to ancient limits on religious property in English law. In America, one could be a loyal congregant of an existing and flourishing church and a keen supporter of disestablishment. Isaac Backus of Massachusetts, a Baptist, saw disestablishment as the only way to be a true Christian, and advocated for that position through decades of activism and commentary in the late eighteenth and early nineteenth centuries. (41)

It is worth noting, however, that powerful corporations were not widely admired in the Revolutionary era or after. Anticorporate feeling--grounded not only in mortmain but also in the traditional monopolies accorded to religious and lay corporations under English law--survived well into the nineteenth century. (42) During the same period, the incorporation of religious societies of small means and deeply local scope became a way for state legislators to serve their constituents, who were members of these new societies. These relatively nonthreatening organizations stood in sharp contrast to more dangerous corporations. Banks, including the Second Bank of the United States and predecessor organizations, bribed and substantially rewarded supportive legislators. The backlash against financial corporations, especially after the Panic of 1837, portrayed banks as great sources of tyranny and corruption. (43) By the 1830s, railroads joined banks as targets of anticorporate tirades, which centered on the erosion of democracy at the hands of moneyed interests. (44)

The focus on the corruption of wealth and the dangers of concentrated authority in corporations found some adherents, even when applied to churches instead of banks. In Virginia, anticorporate and antiecclesiastical sentiments blended so thoroughly that, between 1790 and 2002, religious organizations were formally prohibited from incorporating. (45) James Madison was especially virulent on the question; while President, Madison vetoed a special bill to incorporate a church in Washington. (46) Most states did not follow Virginia's lead, however. (47) Instead, they adapted the corporate form to empower the laity, giving congregants the right to control religious societies through incorporation statutes that secured property (in limited amounts) and required the election of trustees to manage all corporate assets.

The first disestablishment, therefore, featured state imposition of stringent economic discipline on clerics and denominations. This was matched by deference to individual religious choices and a relative disregard in the broader society for the ways that religious authority and wealth had traditionally worked together. The combination of both discipline and privilege through incorporation often resulted in unexpected and, to modern eyes, shockingly invasive practices. Frequent judicial interpretation of those laws meant that the internal workings of religious organizations were exposed to scrutiny and judgment in thousands of conflicts that pitted the faithful against each other and against their ministers and priests. (48) In the nineteenth century, judges were heard to remark blithely that "mere money" should not concern a minister or his congregation. In comparison to the immeasurable value of freedom of conscience, the inconvenience of, say, losing a church building was a minor affair, observed the Massachusetts Supreme Judicial Court. (49) Furthermore, judges often inquired into religious doctrine to decide questions of church polity, all in the interests of managing the boundaries of religious property in a disestablished world. As Justice Strong noted, entirely without irony, almost all cases of note involved "church property," which required courts to decide on the proper disposition of disputed land and monies. (50)

Attention to this extensive legal record reveals the tracks of religious life left in law, as well as the state's imposition of discipline on religious actors. Vibrant religious communities flourished, paradoxically enough, in these highly regulated and even brittle institutions. In quotidian and often bitter controversies over church property and identity, Americans delineated what disestablishment meant (and did not mean) in practice. These battles pitted believers against each other; the byproduct was a jurisprudence of disestablishment created through, rather than in opposition to, the legal system.

The first system of disestablishment thus involved extensive government regulation. Recent historical work on state and local governments in the early nineteenth century has challenged earlier historians' claims that there was a vacuum of authority. (51) The historiography of religion has been less attentive to the role of the state, but both legislation and litigation reveal active government intervention. Connecting this pattern of regulation and oversight to religious institutions and their congregants allows religious historians to see a different landscape, one that reflects American political and legal development more generally. In addition, attention to the early implementation of disestablishment gives legal scholars of religion a new vantage point. Instead of relying on abstract statements in congressional debates or at the national constitutional convention, we can study the actual practice of disestablishment in the states. The resulting portrait of the protection and regulation of religious institutions is both unexpected and far more wide-ranging than we knew.

Disestablishment in early America was the result of innovation and adaptation. State legislatures did not import the world of the Henrician reformation when they established property limits for religion, pace Justice Strong. (52) Instead, states blended provisions for general incorporation with property limitations and lay governance. Strong addressed his lectures to an audience in New York City, where the Episcopalian Trinity Church of Wall Street was (and still is) a major landholder. (53) In 1875 New York, religious corporations were allowed to hold land for "pious uses" only and, for most religious denominations, the annual income from both real and personal property was limited to $3000 per church. (54) Individual Presbyterian and Episcopal churches in New York City, whose congregants hailed from the higher reaches of society, were allowed incomes of $6000. (55) These income limits varied considerably: in New York in 1784, each church was allotted 1200 [pounds sterling]; in Pennsylvania in 1791, the limit was 500 [pounds sterling]; in North Carolina in 1796, 200 [pounds sterling]. (56) Yet the ubiquity and longevity of such restrictions reflected a political consensus.

This consensus was reached in response to the quandaries created by disestablishment. After deciding to disestablish, states faced a central question: What to do with religious wealth, property, and institutional forms after religious groups ceased to be either part of the broader apparatus of government or more or less unwelcome dissenters? Following the pioneering work of anthropologist and political scientist James Scott, we can understand how states sought to make religious life "legible" at the outset of an unprecedented era of disestablishment. (57) What did it mean to "see" the religious landscape from the perspective of a disestablished state? (58) What map would allow government both to describe and regulate its constituents and territory? (59) In our case, the question is further complicated by the fact that federalism consigned such questions to the states rather than the national government; each state wrestled with similar but separate questions about the meaning of disestablishment. The states' commitment to disestablish meant that the ground had shifted, and governments adapted to account for and, in turn, manage the change.

Recognizing the rough outlines of the religious uses of the landscape provided young state governments with a roadmap, as it were. They had enough information to construct a regulatory regime that we know in retrospect was at once grossly inadequate and deeply productive. Inadequate, because a one-size-fits-all regime of property and governance could not account for the many differing ways of observing and anchoring faith in American society. Productive, paradoxically enough, because the one-size-fits-all structure was deployed so widely and frequently that most religious groups adjusted their expectations; many new congregations emerged and then resided in a legal world where they expected religious organizations to fit the regulatory structures imposed by the disestablished state.

Limitations on total acreage or value of property (or annual income for a religious corporation) were common elements of this new regulatory map. Both kinds of allowances gradually became more generous--permitting larger acreage, especially in newer western states, or greater income in later decades--but the desirability of these restrictions was widely accepted. Such limitations varied: one acre, (60) two acres, (61) three acres, (62) four acres, (63) five acres, (64) ten acres, (65) twenty acres, (66) and forty acres. (67) Other jurisdictions simply restricted religious organizations to as much property as was used for the purpose of "public worship" (68) or "for the use of the society," (69) or else mandated that the property be used "for no secular purposes." (70) In addition, especially later in the antebellum period, some states added limits on the maximum annual income produced by real or personal property, such as $400, (71) $900, (72) $1000, (73) $2000, (74) $3000, (75) $5000, (76) $6000, (77) $20,000, (78) or on the total value of real property, such as $50,000. (79)

In return for the protections of the corporate form, these statutes paired such limits on wealth and land with other forms of regulation, especially mandatory forms for internal governance. Like the property restrictions, the legislative stipulations for church polity were simple and followed a rough pattern. In virtually all statutes, state legislatures imposed regimes of lay governance. Control of all property and funds was placed in the hands of congregants, not clergy. New Jersey's 1786 statute, for example, required religious societies to elect up to seven trustees, selected by and from the congregation of the organization. (80) Other states varied the number of trustees, ranging from three to fifteen in most cases. (81) Some states, such as New York, limited the vote for trustees to adult men. (82) The key goal, clearly, was to place control in those who were elected by their fellow church members, thereby implicitly limiting the power of clergy, and even denominations, to impose on congregations conditions to which they had not agreed. By passing general incorporation statutes for religious societies, states forcibly democratized and laicized church governance.

B. Incorporated Societies

From one perspective, the regulation imposed on religious societies in return for incorporation was overwhelmingly restrictive, emanating from mistrust of mortmain institutions. Equally important, however, was the empowerment of institutional life associated with the corporate form. Religious corporation statutes were not restricted as to faith tradition or denomination; instead, they extended security of property and state recognition in return for material restrictions. The effects of disestablishment occurred not just in such statutes, but also in the very forms that religious organizations took under the new laws.

In some ways, religious corporations were the wave of the future for all of corporate law. Long before other private groups were allowed the privilege, religious societies were offered incorporation under general statutes. Such legislation provided a simple means of securing corporate status, whereas incorporation for turnpikes, bridges, canals, and--eventually--early railroads, as well as all business, manufacturing, and financial ventures, was obtainable by special legislative charter only. General incorporation statutes for religious organizations dating from the late eighteenth century have led some business law scholars to claim that business corporations as we know them today are the descendants of the 1784 New York statute, for example. (83)

Through incorporation, separation of church and state (if the phrase is anywhere appropriate) entailed freedom of conscience from state control, not freedom of institutional religion from state oversight. Matters of the spirit were no longer within the purview of the government, but things of the world that belonged to churches--land, money, and control over both--remained of deep interest to disestablished states. And the corporate form itself also affected the development of American religion. (84) Corporations became vectors for the channeling of religious energies, imposing structure, procedures, and privileges (as well as discipline) on religious societies. The prospect of such protection drew religious institutions and their members to the law and the powers it promised, as the new legal world for religious organizations meshed with and ultimately directed the course of religious life. As one corporate law scholar noted in another context, "[T]he law provided leverage at points critical to other development, and its marginal effects could determine the balance ... to fix our direction and the pace at which we moved." (85) Among the most important of these leverage points was the power to hold property and the duty to use it in carefully confined ways.

1. The Nature of "Religious Property"

In the name of disestablishment, general incorporation laws imposed property restrictions on all denominations, not just those that had enjoyed the King's favor before independence. State statutes limiting religious property tended to be written simply, focusing on total accumulation, rather than the niceties of religious doctrine. These new laws thus generated another layer of state involvement, as state judiciaries were called upon to fill in the details of the law of religious corporations, as well as to decide how and when trustees had exceeded their power to control church polity. State judges decided cases that grew out of squabbles among congregants, many of which devolved into litigation and, with distressing predictability, into outright schism. Such lawsuits generally pitted the self-proclaimed "orthodox" members of a congregation (or an entire denomination) against reformers of one stripe or another. In these cases, judges tackled the question head-on with surprising alacrity, deciding whether a given body had betrayed the fundamental precepts of the underlying faith and awarding the property to the party they found most deserving. When religious doctrine conflicted with state legislation limiting religious property, however, judges often did not hesitate to invalidate deeds of transfer, no matter what the faith demanded.

North Carolina, for example, enacted legislation in 1796 that provided for incorporation and continuity of property ownership for religious institutions; that is, current property, including glebe lands, could be retained. (86) But looking forward, North Carolina imposed a stricter discipline. In addition to total limits on property (which could not generate income above 200 [pounds sterling] annually), (87) the statute prohibited religious societies and their trustees from acquiring any property unless it was "for the sole use" of the society. (88) In other words, North Carolina limited religious societies' ability to accumulate wealth even as it empowered their formation.

In 1827, the North Carolina Supreme Court held that this limitation invalidated the purchase of slaves by a religious society. (89) It was most certainly not the case that North Carolina prohibited a religious entity from owning slaves; the problem here was that the alleged "purchaser" was the corporation known as the Trustees of the Quaker Society of Contentnea, and the seller was a member of the congregation. The agreement of sale was designed as a means of emancipation (or at least of allowing slaves to live in a condition of substantial freedom and security until they might be manumitted legally). (90) Because a religious association was only allowed to hold property by grace of the state's 1796 statute, the court held, it was also constrained by the mandate outlined in that legislation--religious societies could only hold property for their own "use and benefit." (91) In a similar case, a bequest in 1799 left slaves to four trustees, one of whom was a Methodist minister. (92) The slaves were to be kept "for the glory of God, and good of said slaves." (93) When more than two decades later the court determined that the bequest was actually a veiled emancipation device, it was voided as contrary to law. (94)

In Trustees of the Quaker Society of Contentnea v. Dickenson, the Quaker Society's evident desire to emancipate the slaves whenever possible--and to pay them wages in the meantime--meant that this property was held for the benefit of the property itself (that is, the slaves), rather than for the society's use. The conveyance was voided, (95) and the "sale" for manumission soon atrophied as a Quaker antislavery strategy. In 1830, some 652 slaves had been freed by this device, and 402 more were under Quaker trustees' care. (96) But by 1856, thanks in large part to litigation surrounding the practice, Quakers had reduced their investment in trustee purchases to a tiny fraction of the sums spent a generation earlier, and only eighteen slaves were under Quaker care. (97)

As the lone dissenting judge in Dickenson noted, it was extraordinary to inquire into what a private purchaser intended to do with property that an owner had a legal right to sell. (98) Such an inquiry was an offense against the rights of property owners and purchasers. The corporate form established for religious societies, however, allowed the North Carolina court to probe purchases, sales, and donations in religious institutions more deeply than elsewhere in the antebellum economy. The mandate to limit property only to that used for "religious" purposes--worship, interment, the support of a minister, assistance to impoverished members, and the like--became the catalyst for decisions denying property rights to religious organizations under a variety of different statutory schemes. Freedom of religion thus went hand-in-hand with widespread denial of the capacity of religious organizations to acquire the wealth that had sustained traditional forms of religious authority. In return for incorporation, the state demanded that religious societies bow to the state's policies through the mechanism of property limitations. Such mechanisms, the Quakers learned, could be punitive.

Admittedly, Quakers were small and embattled in North Carolina when Dickenson was decided in 1827, and so an invasive judicial decision might not be felt among more popular groups. But the growth among Baptists in the early Republic was stunning. Between 1775 and 1825, Baptists went from dissenting minority to powerful evangelical mainstay. (99) They too found that property limits imposed by statute constrained their liberty. In Maryland, the first state constitution in 1776 disestablished the Church of England (and preserved its current property), but also provided that the legislature had to approve all sales or donations of land to religious organizations. (100) Furthermore, all such property had to be smaller than two acres in size and explicitly dedicated only "for a church, meeting, or other house of worship [or] for a burying ground." (101) In Grove v. Trustees of the Congregation of the Disciples of Jesus Christ, a sale of just under two acres of land in trust for "the only proper use and behoof of the said German Baptist Society" (also known as the "Brethren" or simply the "Dunkers") in 1787 resulted in the establishment of a cemetery on the land and intermittent worship. (102) But in 1808, the same grantor rewrote the deed, allowing the trustees at their discretion to permit members of other sects to be buried there in addition to Dunkers, and to permit members of other faiths to use the site for worship either together with or in place of the Dunkers. (103)

The whole thing blew up when a rival evangelical group, the Disciples of Christ--which began as a movement within the Baptist tradition but split off in the late 1820s amid growing tension with more mainstream Baptists (104)--laid claim to the land. (105) The Disciples had leased the land from the trustees in return for the promise to build a church; eventually they decided that sharing space with the Dunkers no longer suited their interests. The issue was joined as antagonism between the older, more traditional group and the newcomers boiled over. (106)

The Maryland Court of Appeals held that the initial grant was void: even though the Dunkers had used the land for more than twenty years, the gift had not vested, because they had not sought the approval of the legislature. (107) The court then decided that the lessee religious corporation had acted in good faith reliance on the subsequent grant--they had built a solid house of worship and a brick vault for interment of the dead, and they had paid all taxes and assessments. (108) Thus the Disciples' interest had ripened into a relationship that equity would not disturb. (109) As in this case, the uncertainty of title, where legislative approval was technically required for each sale or lease, made for constant litigation, and courts struggled to untangle often well-meaning but clumsy attempts to satisfy (or circumvent) the law. (110)

Some states focused more on the ways that religious organizations might abuse the generosity of donors to the detriment of the congregation and therefore regulated how church property could be sold or mortgaged. Maine stipulated that prior appraisal "by three discreet persons under oath, to be elected by ballot at any legal meeting of [the] owners or proprietors" was required before a religious corporation could sell any assets. (111) In Warren v. Inhabitants of Stetson, the Supreme Judicial Court of Maine invalidated a transfer of land that had only two of three required signers on the deed. (112) Michigan placed no formal limit on the amount of land, but mandated judicial approval of any sale by a religious group. (113) Georgia set a cap on total property and further limited property ownership to what was "absolutely necessary to carry into effect the objects of [a group's] incorporation." (114)

New York State was the largest jurisdiction to require ongoing judicial administration of religious property. The state provided particular rules for individual denominations, including Episcopal, Presbyterian, Reformed Dutch, Dutch Reformed, Free, Quaker, Roman Catholic, and Shaker, together with elaborate rules for the election of trustees by these and other, smaller religious groups, hiring and firing of ministers and priests, purchase of real estate (overseen by courts), the mandate that all title to property vested in the corporation rather than individuals, and so on. Many smaller societies in the state were limited to a maximum income of $1000 per year as late as the 1840s. (115) New York also required court approval for any sale or mortgage of real property, an onerous impediment designed to protect the wishes of donors against the machinations of clerics, and productive of much litigation. (116)

2. The Law of Religious Property and Lay Governance

The new law of religion nourished and channeled enormous change in the American legal system and religious life. For the most part, this was private law, tucked into state codes and worked out in case law by state judges. The results varied, but most state judiciaries, like their legislative counterparts, found themselves addressing questions of ownership, control, and dissolution for religious corporations. For religious societies in the few states that disallowed incorporation, judge-made doctrines of trust law followed the rough patterns laid out by states with formal incorporation statutes.

This ongoing judicial management was as important as the legislation governing it. The rules that courts developed to guide religious institutions differed on some issues but agreed on many others. Courts disagreed, for example, over whether a donation or purchase in excess of an allowed amount was automatically void or merely voidable if the transaction was challenged. (117) Regardless, the existence of such restrictions must have discouraged many potential donors, especially those who sought legal advice.

Less sophisticated actors frequently were frustrated when they tried to use the law to accomplish their own objectives. For instance, Illinois limited religious corporations to a total of five acres of real property in the mid-1830s. (118) Mormon Church founder Joseph Smith, who together with his followers had established the city of Nauvoo on the banks of the Mississippi River near Carthage in 1839, took advantage of Illinois's 1835 "Act Concerning Religious Societies," which set the five-acre limit on church property in the state. (119) In an effort to disentangle his personal finances from those of the church he led, Smith was named "trustee in trust" and empowered to acquire, manage, and dispose of all real and personal property for the Church of Latter-day Saints. (120) Smith and his wife then transferred from his personal accounts about 240 city lots, totaling 300 acres, to himself as trustee. (121)

At roughly the same time, Smith declared bankruptcy. (122) He listed among his debts a sum of roughly $5000 to the U.S. government, representing a note on which he stood as surety for the purchase of a steamboat on which the principals had defaulted. (123) Litigation on both the bankruptcy and the note had not been resolved by the time Smith was murdered in 1844. (124) After years of wrangling, a federal court held that the transfer of anything in excess of ten acres from Smith to the church was void under Illinois law. (125) Hundreds of acres thus stayed in Smith's estate and could be seized for satisfaction of the debt, subject only to his widow's dower interest. (126)

Three decades later, Catharine Germain donated her eighty-acre farm in St. Clair County, Illinois, to St. Peter's Roman Catholic Congregation. (127) Her son Nicholas refused to leave the valuable tract of land, and the church brought suit to eject him as a trespasser. (128) At the Illinois Supreme Court, the majority held that ownership of the land had never changed hands because the church already owned the maximum ten acres before Catharine's gift (129): "[A]ll conveyances ... made in violation of this prohibition, are absolutely void." (130)

By the middle decades of the nineteenth century, a minority of state courts, beginning with Pennsylvania in 1821, held that title to property acquired in excess of statutory maximums was good against everyone but the state. (131) Justice Craig, dissenting in St. Peter's Roman Catholic Congregation v. Germain, argued that the question of whether a religious corporation had exceeded its power when accepting land was one for the state alone, and that an injured relative such as Nicholas had no interest in the farm: "The question is one between the corporation and the sovereign power, in which individuals have no concern." (132)

The issue, of course, was whether the restrictions on property ownership imposed on religious organizations were undertaken fundamentally to protect individual rights of conscience against religious orthodoxies, or instead were designed to protect the secular state against a potentially dangerous rival bolstered by claims of divine authority. As one scholar described it, traditionally "[m]ortmain is the composite legislative response to attacks upon the viability of the state from within from institutions that would compete with the lawful government for control." (133) By the early decades of the nineteenth century in America, however, both liberal Protestants in the North and conservative Southerners (except in cases involving slavery) generally privileged the individualized interpretation. They elevated personal belief and conscientious scruple above organized religion. In so doing, they limited the power of religious leaders and the organizations they led, to allow free entrance and exit for members, and to protect individuals against new incarnations of religious authority. (134)

State statutes also provided for lay management of religious corporations as part of the system of disestablishment. Acting like a disestablished state meant mandating the protection of individual citizens--giving them the power not only to choose a religion, but also to control it. In a study of how corporations became a means of organizing communities and enterprises, one scholar noted that the imposition of democratic rule on corporations through legislative mandates reflected republican ideals: "The corporation ... became, and remains, a child of the American Revolution and a testament to its enduring impact, for good and for ill, on the political and social structure ... of the United States." (135) In the story of the gradual embrace of the corporation, this article suggests, we should recognize that religious corporations were the first major private associations to incorporate. Equally important, religious corporations were key players in achieving the acceptance of the corporate form, bound up with the commitment to disestablish, on the one hand, and the protection of individual conscience, on the other.

Trustees were the bridge between the congregation and the state. Trustees, chosen democratically and ruling by majority vote, became the recognized and legitimate embodiment of a religious society. In order to hold property securely, general incorporation statutes required religious institutions to elect trustees from among their members, (136) blending traditional charitable concepts of trust law and trusteeship with religious institutions. In this way as well, states adapted traditional categories to suit a new environment, blending older concepts to generate a roadmap for the ongoing management of religious corporations. Some statutes included rules for voting, specifying in certain cases that all white male members were enfranchised. (137) The minimum number of trustees was often three, and the maximum ranged from five up to fifteen. (138) Once elected, trustees were incorporated as a unit and took control of all church property. (139) Thereafter, they held title to land and financial assets, and managed the affairs of the church. (140) In Kansas, the state constitution even required that all religious property be held by trustees elected by the membership. (141) Even those states (e.g., Virginia, West Virginia, Arkansas, Rhode Island) that did not allow churches to incorporate still allowed trustees to manage church property, generally as a matter of judge-made common law. (142) Yet the key to all such property holding was lay control.

One might assume that this deference to individual interests would prove an unwelcoming environment for the development of powerful religious

institutions. The assumption would be mistaken, however, especially because fast-paced growth in religious communities accompanied the discipline of disestablishment. Popular religious leaders (as opposed to the old fogies) found themselves empowered by the new regime. These upstarts changed forever the way we think about religious life in America, invigorating religious institutions, especially new ones. (143) It is a remarkable story, one in which a vigorous "market" in religion flourished amid sharp restrictions on institutional liberty. (144)


The generation that came of age around the turn of the nineteenth century participated in one of the largest revivals of religion in history, known to posterity as the Second Great Awakening. This generation inherited a world in which traditional authority had been overturned. The Revolution and its aftermath plunged the nation into bitter controversies over religion and its place in the new nation, as well as the relationship between individuals and God. As we have seen, disestablishment was felt at the local level far more poignantly than in, for example, Congress as it debated the Establishment and Free Exercise Clauses of the Bill of Rights. (145) It also played out in individual lives, as Americans in the early nineteenth century wrestled with the ways that religious authority was reconfigured and limited after the demise of state-supported religion. As one outraged but now-marginalized Connecticut minister lamented after the vote in 1818 to disestablish the state's Standing Order, "It was as dark a day as ever I saw. The odium thrown upon the ministry was inconceivable." (146)

Legislatures' eroding respect for churchmen reflected the prevailing political sentiment, but also had roots in religious life. The rejection of involuntary religious practice that underpinned disestablishment accelerated developments already underway in Protestant thought and among more free-thinking Catholics. Historians of religion disagree about the root causes of the changes in religious life that followed disestablishment: some claim the outpouring of religious fervor of the Second Great Awakening was a reflection of the energies unleashed by religious liberty, while others claim religious communities became refuges from the disaster of early national American political life. From one perspective, the explosion of popular religious enthusiasm was itself a democratization of American Christianity, rooted in the new freedom to express and embrace heartfelt piety. (147) Viewed from a different angle, the same liberation of religious life fed into a vacuum of authority--the chaos and destructive tenor of early national politics, so the argument goes, backlit the civilizing benefits of religious community. (148) Instead of embracing the democratic virtues of American politics, one recent work charges, religious leaders often traded in fear and condemnation rather than joy and liberation. (149)

Whether condemned for entrenching the "blinding mistrust of secular Politics" (150) or celebrated as embracing the "aspirations of society's outsiders," (151) the Second Great Awakening was powered by disestablishment. Liberty from government-controlled religion upended some forms of traditional authority, creating space for great innovation. Yet the state did not bow out of the equation. Instead, it reconfigured its approach, ceding some organizational authority, but imposing limits on wealth and requiring lay control. In this light, an appreciation of the tenor of disestablishment brings the state back in to the narrative of religious revival. (152) Paying close attention to how disestablishment was implemented teaches us not only about religion, but also about how the state (or states, as this study demonstrates) made sense of a new politics of religion.

From this more complete vantage point, it is clear that historical works that treat the Awakening either as the product of individual enthusiasm or as an outgrowth of political failure implicitly assume a separation of government from religious life that never really happened. Instead, disestablishment greatly changed--but did not destroy--the relationship between religion and government. The new regime included substantial independence, but also significant regulation. Rather than being a "free market" in religion, this was an administered market, where interactions often took place without direct government intervention, but still within the broad parameters set by state laws on religious societies. The legal regime profoundly affected religious communities and the resolution of disagreements therein. The new discipline restricted wealth and imposed lay control, creating new arenas for activity by many groups, but also setting limits that generated new stresses.
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Title Annotation:Introduction into II. Enthusiasm and Regulation, p. 307-337
Author:Gordon, Sarah Barringer
Publication:University of Pennsylvania Law Review
Date:Jan 1, 2014
Previous Article:Selling state borders.
Next Article:The first disestablishment: limits on church power and property before the Civil War.

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