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and fictitious being, that corporations were originally invented, and, for the same convenient purpose, they have been brought largely into use. By means of the corporation, many individuals are capable of acting in perpetual succession like one single individual, without incurring any personal hazard or responsibility, or exposing any other property than what belongs to the corporation in its legal capacity.
1. Of the history of corporations.
Corporations, private as well as public or municipal, were well known to the Roman law, and they existed from the earliest periods of the Roman republic. (a) It would appear, from a passage in the Pandects, (6) that the provisions on this subject were copied from the laws of Solon, who permitted private companies to institute themselves at pleasure, provided they did nothing contrary to the public law. But the Romans were not so indulgent as the Greeks. They were very jealous of such combinations of individuals, and they restrained those that were not specially authorized ; and every corporation was illicit that was not ordained by a decree of the senate or of the emperor. (c) Collegia licita, in the Roman law, were, like our incorporated companies, societies of men united for some useful business or purpose, with power to act like a single individual; and if they abused their right, or assembled for
(a) They were known to the Twelve Tables, for that early code allowed private companies to make their own by-laws, provided they were not inconsistent with the public law. Vide supra, vol. i. p. 524, Table 8th.
(6) Dig. 47, 22, 4. See, also, 3 St. John on the Manners of Ancient Greece, 76, 77. The free states of Greece, subsequently to the period of the heroic age, were merely cities with their districts, and with internal constitutions of their own, and possessing the exclusive management of their own concerns. The confederation of cities was for mutual defence. Heeren on the Political History of Ancient Greece, edit. Oxford, 1834. The people of Attica, under the division of tribes, were in a degree distinct and independent corporations. They had each their respective heads or presidents, and enjoyed the right of deliberating and deciding in common upon matters connected with their own interests, and of framing any rules and regulations for themselves, provided they were not at variance with the laws of the whole state. See Schöman's Dissertation on the Assemblies of the Athenians, p. 346, where he refers to Gaius De Collegiis, lib. 4, D. The Demi were subdivisions of the tribes, and they had each their respective magistrates, their own independent property, their common treasury, and general meetings or assemblies for deliberation and decision on their own affairs. It was necessary for every citizen of Attica, whether genuine or adopted, to belong to some one Demus, and to have his name enrolled in its register. Id. 353, 356. These civil and political institutions bear some analogy to the counties, cities, and towns in our American states.
(c) Dig. 47, 22, 3, 1.
any other purpose than that expressed in their charter, * they were deemed illicita, and many laws, from the time * 269 of the Twelve Tables down to the times of the emperors, were passed against all illicit or unauthorized companies. (a) In the age of Augustus, as we are informed by Suetonius, (6) certain corporations had become nurseries of faction and disorder; and that emperor interposed, as Julius Cæsar had done before him, (c) and dissolved all but the ancient and legal corporations — cuncta collegia, præter antiquitus constituta distraxit. We find, also, in the younger Pliny, (d) a singular instance of extreme jealousy indulged by the Roman government of these corporations. A destructive fire in Nicomedia induced Pliny to recommend to the Emperor Trajan, the institution, for that city, of a fire company of one hundred and fifty men, (collegium fabrorum,) with an assurance that none but those of that business should be admitted into it, and that the privileges granted them should not be extended to any other purpose. But the emperor refused to grant, and observed that societies of that sort had greatly disturbed the peace of the cities; and he observed, that whatever name he gave them, and for whatever purpose they might be instituted, they would not fail to be mischievous.
The powers, capacities, and incapacities of corporations, under the English law, very much resemble those under the civil law; and it is evident that the principles of law, applicable to corporations under the former, were borrowed chiefly from the Roman law, and from the policy of the municipal corporations established in Britain and the other Roman colonies, after the countries had been conquered by the Roman arms. Under the latter system, corporations were divided into ecclesiastical and lay, civil and eleemosynary. They could not purchase or receive donations of land without a license, nor could they alienate without just cause. These restraints * bear a striking resemblance to *270 the mortmain and disabling statutes in the English law. They could only act by attorney; and the act of the majority bound the whole; and they were dissolved by death, surrender, or
(a) Taylor's Elements of the Civil Law, pp. 567–570.
forfeiture, as with us. (a) Corporations or colleges for the advancement of learning were entirely unknown to the ancients, and they are the fruits of modern invention. But in the time of the latter emperors the professors in the different sciences began to be allowed regular salaries from the government, and to become objects of public regulation and discipline. By the close of the third century these literary establishments, and particularly the schools at Rome, Constantinople, Alexandria, and Berytus, assumed the appearance of public institutions. Privileges and honors were bestowed upon the professors and students, and they were subjected to visitation and inspection by the civil and ecclesiastical powers. (b) It was not, however, until after the revival of letters, or at least, not until the 13th century, that colleges and universities began to confer degrees, and to attain some portion of the authority, influence, and solidity which they enjoy at the present day. (c) The erection of civil or municipal corporations, for political and commercial purposes, took place in the early periods of the history of modern Europe. Nor were they unknown to the ancient Romans, for their dominion was composed of numerous cities or municipal corporations. (d) Cities, towns, and fraternities were invested with corporate powers and privileges, and with a large civil and criminal jurisdiction. These immunities were sought after from a spirit of liberty as well as of monopoly, and created as barriers against feudal tyranny. They afforded protection to commerce and the mechanic arts, and formed some counterpoise to the exorbitant powers and unchecked rapacity of the feudal barons. (e) By this means, order and security, industry,
(a) 1 Brown's Civil and Adm. Law, 142, 143. Wood's Inst. of the Civil Law, p. 134. (b) i Bro. Civil Law, 151, 162–164. (c) Ibid. 151, 152, note.
(d) The history of the conquest of the world by Rome, says M. Guizot, in his History of the Civilization of Europe, edit. Oxford, p. 42, is the history of the conquest and foundation of a vast number of cities. In the Roman world there was, as to Europe, an almost exclusive preponderance of cities, and an absence of country populations and dwellings. It was a great coalition of municipalities, once free and independent, (for cities were states,) and whose powers, upon their conquest, were transferred to the central government and municipal sovereignty of Rome.
(e) Hallam on the Middle Ages, vol. i. pp. 165–171, 303, 304. The corporation of the city of London had its privileges and the rights of its freemen secured by a provision in the Magna Charta. It is stated in Glanville, b. 5, ch. 5, that if a villein remained for a year and a day in any privileged town, which had franchises by prescription or charter, he became thenceforward a free member of the corporation. See, also, Bracton,
* trade, and the arts, revived in Italy, France, Spain, Ger- * 271 many, Flanders, and England; and to the institution of civil or political corporations, with large charter privileges, may be attributed, in some considerable degree, the introduction of regular government and stable protection, after Europe had, for many ages, been deprived, by the inundation of the barbarians, of all the civilization and science which had accompanied the Roman power. (a)
But although corporations were found to be very beneficial in the earlier periods of modern European history, in keeping alive the spirit of liberty, and in sustaining and encouraging the efforts for social and intellectual improvement, their exclusive privileges have too frequently served as monopolies, checking the free circulation of labor, and enhancing the price of the fruits of industry. Dr. Smith (6) does not scruple to consider them, throughout Europe, as generally injurious to the freedom of trade and the progress of improvement. (c) The propensity, in modern times,
lib. 1, ch. 10, sec. 3, fol. 6, b. One of the laws of William the Conqueror was to the same effect; and this custom prevailed equally in France and Scotland, and boroughs everywhere became the cradles of freedom. Lord Coke (Co. Litt. 137 b) says, that manumission, among other significations, meant the incorporating of a man to be free of a company or body politic, as a freeman of a city, or burgess of a borough. Messrs. Merewether and Stephens, in their History of Boroughs and Municipal Corporations in the United Kingdom, vol. i., Introduction, London, 1835, contend that there were no municipal incorporations until the reign of Henry IV., though boroughs existed in England from the earliest period; and the burgesses were the permanent, free, and privileged inhabitants and householders sworn and enrolled at the court leet. The terms corporation and body corporate first appeared in the reign of Henry IV., in any public document. The first charter of incorporation to a municipal body was granted under Henry VI. Afterwards, under Edward IV., the doctrine was first advanced in the common pleas, that the existence of corporations might be inferred from the nature of the grant, without words of incorporation. Ibid. Int. 34.
(a) Smith’s Inquiry into the Wealth of Nations, vol. i. pp. 395–401. Robertson's Charles V. vol. i. pp. 31, 34. Hallam on the Middle Ages, vol. i. pp. 78–80. Pres-, cott's History of Ferdinand and Isabella, vol. i. Int. pp. 14-18, 53–56. The Castilian cities in Spain anticipated the cities of Italy, France, England, and Germany, in the acquisition of valuable privileges and jurisdictions.
(6) Inquiry, vol. i. pp. 62, 121, 130, 132, 139, 462.
(c) The monopoly or restrictive system which protected the industry of privileged individuals, by confining the exercise of business as traders, manufacturers, and mechanics, to persons licensed, or who had undergone apprenticeships and examinations, destroyed free competition and perfection in the mechanic arts. The policy still prevails in many parts of continental Europe, and in considerable vigor in Sweden. Laing's Travels in Sweden, in 1838. In England, the statute concerning Monopolies, of 21 James I. ch. 3, which was a magna charta for British industry, was a declaratory act,
has, however, been to multiply civil corporations, especially in the United States, where they have increased in a rapid manner and to a most astonishing extent. The demand for charters of incorporation is not merely for municipal purposes, but usually for the more private and special object of assisting individuals in their joint-stock operations and enterprising efforts, directed to the business of commerce, manufactures, and the various details of internal improvement. This branch of jurisprudence becomes, therefore, an object of curious as well as of deeply interesting research. The multiplication of corporations, and the avidity with which they are sought, have arisen in consequence of the power which a large and consolidated capital gives them over business of every kind; and the facility which the incorporation gives to the management of that capital, and the security which it
affords to the persons of the members, and to their property * 272 not vested in the corporate * stock. The convention of the
people of New York, when they amended their constitution in 1821, endeavored to check the improvident increase of corporations, by requiring the assent of two thirds of the members elected to each branch of the legislature, to every bill for creating, continuing, altering, or renewing any body politic or corporate. (a)
and declared that all monopolies, and all licenses, charters, grants, letters-patent, &c., “to any persons or bodies politic, for the sole buying, selling, making, working, or using anything within the realm,” were unlawful and void, with the exception of patents for twenty-one years for inventions, &c., and of vested corporate rights relative to trade. This statute, says Mr. Hume, contained a noble principle, and secured to every subject unlimited freedom of action, provided he did no injury to others, nor violated statute law.
(a) This provision, it has been said, only applied to private, and did not apply to public or municipal corporations. Nelson, Ch. J., in The People v. Morris, 13 Wendell, 325. Walworth Ch. in Warner v. Beers, 23 Wendell, 126. Purdy v. The People, 4 Hill (N. Y.) 391. But it was decided by the Supreme Court of New York, in De Bow v. The People, 1 Denio, 1, and by the Court of Errors in the case of Purdy v. The People, that the constitutional check extended to all corporations, whether public or private; and that to ascertain whether a bill requiring a vote of two thirds of each house was properly passed, the courts may look beyond the printed statute-book, to the original certificates indorsed on the bill, and even to the journals kept by the two houses. The constitution of Michigan requires the assent of two thirds of the members of each house of the legislature to every act of incorporation. The constitution of New Jersey also requires
1 A General Banking Act, passed by the requisite two-thirds, was held void by the Supreme Court of Michigan, so far as it purported to confer corporate rights on the companies