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LECTURE XXXIII.

OF CORPORATIONS.

A CORPORATION is a franchise possessed by one or more individuals, who subsist as a body politic, under a special denomination, and are vested, by the policy of the law, with the capacity of perpetual succession, and of acting in several respects, however numerous the association may be, as a single individual.

The object of the institution is to enable the members to act by one united will, and to continue their joint powers and property in the same body, undisturbed by the change of members, and without the necessity of perpetual conveyances, as the rights of members pass from one individual to another. All the individuals composing a corporation, and their successors, are considered in law but as one person capable, under an artificial form, of taking and conveying property, contracting debts and duties, and of enjoying a variety of civil and political rights. One of the peculiar properties of a corporation, is the power of perpetual succession; for, in judgment of law, it is capable of indefinite duration. The rights and privileges of the corporation do not determine, or vary, upon the death or change of any of the individual members. They continue as long as the corporation endures. It is sometimes said, that a corporation is an immortal, as well as an invisible and intangible being. But the immortality of a corporation means only its capacity to take in perpetual succession so long as the corporation exists. It is so far from being immortal, that it is well known, that most of the private corporations recently created by statute are limited in duration to a few years. There are many corporate bodies that are without limitaVOL. II.

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tion, and consequently, capable of continuing so long as a succession of individual members of the corporation remains, and can be kept up.

It was chiefly for the purpose of clothing bodies of men in succession, with the qualities and capacities of one single, artificial, 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.

I. 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, that

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.

b 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.

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.a 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 any other purpose than that expressed in their charter, "they were *269 deemed illicita, and many laws, from the time of the twelve tables down to the times of the emperors, were passed against all illicit or unauthorized companies.b In the age of Augustus, as we are informed by Suetonius,e certain corporations had become nurseries of faction and disorder, and that emperor interposed, as Julius Cæsar had done before him, and dissolved all but the ancient and legal corporations-cuncta collegia, præter antiquitus constituta distraxit. We find, also, in the younger Pliny,e a singular instance of the 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 150 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

356. These civil and political institutions bear some analogy to the counties, cities and towns in our American states.

Dig. 47. 22. 3. 1.

b Taylor's Elements of the Civil Law, p. 567–570.

• Ad. Aug. 32.

Suet. J. Cæsar, 42.

⚫ Epist. b. 10. Letters, 42, 43.

extended to any other purpose. But the emperor refused the 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 *270 *bear a striking resemblance to 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 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 honours were bestowed upon the professors and students and they were subjected to visitation and inspection by the civil and ecclesiastical

1 Brown's Civil and Adm. Law, 142–143. Wood's Inst. of the Civil Law, p. 134.

powers. 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. 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. 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.d By this means, order and

1 Bro. Civil Law, 151. 162, 163, 164.

Ibid. 151, 152. note.

• 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.

& Hallam on the Middle Ages, vol. i. p. 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 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, 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 every where 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

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