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"To be a subject born, and to have Liberty and Privilege of a Freeman, and no Villain, is a great Franchise; and therefore in Law, when a Villain is made free, we say he is Infranchised, he hath the Franchise, Liberty and Priviledge of being a Freeman." -By Pollexfen in the case of the Quo Warranto against the City of London, London, 1696, p. 97.

Classic though it be, the definition is not broad enough to include all corporations, i. e., lands with certain bounds may be incorporated and there may not be an individual within those bounds. There are therefore no "individuals possessing franchises" in such a corporation. After the suppression of the monasteries by Henry VIII, there were no "individuals possessing franchises" yet the corporations were still in existence, although it was assumed they were defunct.

Such strict adherence to a formal definition is also in conflict with what the same learned writer, Maitland, says further, in the same Introduction at p. 34, speaking of Anglo-Saxon or Teutonic local self-government:

"And do you not think that some part at least of the appalling mess-forgive us-the appalling mess that you made of your local self-government, was due to a bad foreign theory which, coupling corporateness with princely privilege, refused to recognize and foster into vigor the bodileness that was immanent in every English township, in every rural Gemeinde? that fatal blunderfrom which some of your less pedantic kinsmen in the colonies kept themselves free when they suffered 'the New England town' to develop its inherent corporateness."

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(Page 38): "What is more, many foreign lawyers are coming to the conclusion that in these days of free association, if a group behave as a corporation, the courts are well nigh compelled to treat it as such, at least in the retrospect. It is strongly urged that in such cases injustice will be done unless corporateness is treated as matter of fact, and American courts have made large strides in this direction."

Now, as if in fulfillment of these prophetic words, comes the decision in the House of Lords that a registered, voluntary association may be sued as a body corporate.1

'Taff Vale Railway vs. Amalgamated Soc. of Railroad Servants, L. T. R. July 22, 1901, p. 698.

In the Dartmouth College cases, Marshall, C. J., gives, in terse form, the often quoted definition of a corporation, as:

"An artificial being, invisible, intangible and existing only in contemplation of law."

But this is not broad enough to include the many municipal corporations that long existed, both in England and in the American colonies, before they received legal recognition. Our division of corporations into those de jure and those de facto is a recognition of this, and a complete definition of "Corporation" must be broad enough to include all corporations, as, for instance, “an imaginary or fictitious perdurable entity, finally recognized by the law." If we attempt a more precise definition we find that our precision will exclude some recognized kind of a corporation.

For further definitions, none of which are, however, satisfactory, see i Kyd on Corps., 13; Angell & Ames on Corps., secs. 1-2; Dillon on Mun. Corps., secs. 18-19-20, 4th ed.; Morawetz on Priv. Corps., secs. I to 7, and others.

The curious scholastic reasoning in 2 Bulstrode 233 (1614) is responsible for the misleading metaphysical doctrine that corporations have no souls, from which was drawn the conclusion that a corporation cannot commit a trespass, cannot be guilty of treason, etc. But why was it not held equally logical to conclude that a corporation cannot promise and therefore cannot enter into a contract?

It would be equally correct (and equally childish) to reason that none can create bodies but God, but the King creates corporations, therefore they have no bodies. Therefore a corporation has no soul nor body. Having no soul nor mind, it can do nothing requiring the exercise of mental powers; having no body it can have no members and can do nothing requiring the exercise of physical powers. It has no arms, no hands, etc. It cannot sign a deed nor affix the corporate seal; nor can it express its intention to have these things done for it. It cannot do anything.

On a par with this reasoning is that of Sir George Treby and Mr. Pollexfen (both afterwards judges) in Quo Warranto against the City of London, that as a corporation is an invisible body, it cannot be sued." Such are some of the absurd results of the

1 4 Wheaton, 518 at 636.

2"None can create souls but God, but the King creates them" (corpora tions) "and therefore they have no souls."

Merewether & Stephens, 1802.

following out to their logical conclusions the scholastic reasoning of past ages.1

The truth is that corporations act both as to mental and physical concerns, through agents thereunto appointed by charter or otherwise. It follows that a corporation should be held liable for its acts, mental or physical, material or immaterial, done by its agents, acting within the scope of their authority, or if the corporation authorized, directed, assented to or ratified such acts.

2

If any force is to be given to such reasoning as that in Bulstrode, repeated by Coke in the case of Sutton's Hospital, instead of coming to the conclusion that a corporation has no soul, it would be more correct to conclude that a corporation is nothing but a soul, it being an immaterial entity, a persona ficta. Certainly it has no body-an immaterial body is an absurdity beyond our comprehension.

"The core of the matter seems to be that for more or less numerous purposes, some organized group of men is treated as a unit which has rights and duties other than the rights and duties of all or any of its members."

198

1"We now begin to hear a dogma (of which all English lawyers know a vulgar version) that the universitas can be punished neither in this world nor in the next, for that it has no soul nor body" (Pollock & Maitland, 1 Hist. Eng. Law, 477.) Not until 1842 was it finally settled in England that a corporation can commit a trespass. (Maund vs. Mon. Canal Co., 4 M. & G. 452)."

But see i Kyd on Corps., 223.

Grant on Corps., 278, commenting on Maund vs. Mon. Canal Co., cites several cases from the Year Books holding corporations liable for trespass-of course these decisions are inconsistent with the reasoning of their time, but as Grant well says; it being established that case would lie against a corporation, it is remarkable that any doubt should ever have been felt as to trespass. A corporation is but a name. Y. B. 21 Ed. IV. F. 13-pl. 4. A corporation is but a person. Y. B. 32 H. VI. F. 9-pl. 13. Combining the two, P. & M. say; (1 Hist. Eng. Law, 474) "It is at once a person and yet but a name; in short it is a persona ficta."

2 10 Rep. 253:

P. & M., Hist. Eng. Law, 488. It does not require a group of men, however, to constitute a corporation. As before stated, p. 267, land within certain stated bounds may be made a corporation, and there may not be an inhabitant within those bounds. There may even be a corporation without land or members. i. e., if an earthquake should swallow all the land of an incorporated town or city with all its inhabitants, the corporation would still continue. But Angell & Ames on Corps., sec. 768, p. 800, 10th ed. (1875), still maintain that a corporation is dissolved by the death of all its members, citing several authorities and decisions in support of the proposition. Surely this is inconsistent with the modern idea of a corporation as a persona ficta that exists independently of the existence of its members. And here again we run across the difficulty of attempting to adopt a rule applicable to all kinds of corporations alike, for this mode of dissolution cannot apply to pecuniary or business corporations. "The shares, being property, pass by assignment, bequest or descent, and must ever remain the property of some persons, who, of necessity, must be members of the corporation as long as it may exist."-(By Morton, J., in Boston Glass Manufactory v. Langdon, 24 Pick. 49 at 52.

This was adumbrated in the cases of the men of Dale1 and of the men of Islington."

It must be ever borne in mind that "from the time of the Norman Conquest and downwards, the Cities and Towns of England were vested either in the Crown or else in the Clergy, or in the Baronage or great men of the Layety. That is to say, the King was immediate Lord of some Towns, and Particular Persons either of the Clergy or Layety were immediate Lords of other Towns."

In the first case we read: "Nota, que fut tenue en le Common Bank que si le Roy done en fee ferme probis hominibus villae de Dale, que le corporation est bon." In the second case: "It was holden for law in the Star Chamber by Bromeley, Chief Justice, Sir John Baker and others, that if the queen at this day would grant land by her charter to the good men of Islington, without saying to have to them, their heirs and successors, rendering a rent, this is a good corporation forever to this intent alone, and not to any other, etc. But then it seems they are only tenants at will: and if the queen release or grant to them the said rent and fee-farm, it should seem the corporation is dissolved ipso facto, for the rent and farm was the cause which enabled the corporation, etc. Ideo quaere."

Charters of the same nature as these had long been granted by lords of manors, both lay and ecclesiastic, and by Kings holding manors as of their own demesne."

1 Y. B. 7 Ed. IV, Tr. Term 7 (1468). Shep. on Corps. 32.

2 Dyer, 100 (1553). Shep. on Corps. 36. Notice the dates. The latter case, 85 years later in point of time, reiterates the principle of the first one. Had no more definite conception of incorporation arisen in all these years? Notice too that in both cases there is no mention of either 'heirs' or 'successors' of the grantees. If there was incorporation without either word, why the long dispute afterwards, and contention that there can be no incorporation without the magical word 'successors'?

3 Madox, Firma Burgi, 4.

This shows how essential to the idea of municipal incorporation fee-farm rent was deemed.

See the many cases cited in "The Origin of Municipal Incorporation in England and in the United States," by Amasa M. Eaton in the Annual Proceedings of the Am. Bar Assn. 1902-i. e., to Newport in Pembrokeshire in 1192 by Nichols, son of the lord of the barony of Kames (Rep. on Mun. Corps. of 1835-Touro, do. 655); to Kilkenny in Ireland by the Earl of Pembroke in 1189 (M. & S. 359); to Durham, between 1189 and 1199 by Hugh Pudsie, Bishop of Durham (M. & S. 365); to Whitby by the abbot, confirmed by King John (M. & S. 388); to Clithroe by the Earl of Lincoln, confirmed in 1229 by Ed. I. (M. & S. 545); to Newport by the Earl of Devon, between 1154 and 1189 confirmed by the Countess of Devon, between 1327 and 1377, confirmed 26 Ed. III. (M. & S. 771); to Tenby by William de Valencia and the Countess Johanna his wife, by Aldomar de Valencia, confirmed by Lawrence de Hastings. confirmed by Ed. III. and Rich. II. The borough was formally incorporated by Elíz. in 1581 (M. & S. 817 and 818); to Plympton Earle by the Earl of Devon in 1241, the Countess of Devon, incer, temp., 13 Ed. III. (1339) and seven later charters (Rep. on Mun. Corps. 596) etc., etc.

If charters of this description issued by the King in the exercise of his royal prerogative, were finally deemed by the courts to have incorporated the grantees, then the same kinds of charters issued by lords of manors must equally be deemed to have incorporated the grantees, and no one has ever doubted the validity of such incorporation by lords of manors.

Charters of this kind issued by lords of manors, were afterwards confirmed by the King1 and charters of the same kind issued by the King were occasionally confirmed by the lord of the manor."

When James II, in dire straits for money, without again summoning Parliament, resorted to Quo Warranto against the Municipal Corporations of the realm, in order to compound for a partial restoration of their rights upon payment of a higher fee-farm rent or a large sum by way of fine, it never occurred to any of the favoring sycophants and servile lawyers and judges about him, that these municipalities were not true corporations and hence were liable to forfeiture, under decree in Quo Warranto.

Sheppard's test of corporateness, irrespective of its origin, is a broad one. After defining "corporation," he says (page 3):

"Or, it is of many persons together. So Majors" (Mayors) "and Commonalities, and all such kind of corporations: Masters and Fellows of Colleges: and some Guardians and Masters of Hospitals: and divers others, where the succession is in many persons, are said to be a body politick, so also the Parishioners or Neighbors in a Parish or Village or Town and the Church wardens of every Parish" (for) "some purposes are in the eye of the Law, Corporations aggregate of many persons.'

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1 i. e., See the instances above cited, with many others in "The Origin of Municipal Incorporation," etc., above cited.

2 i. e., In 1527 Arthur Plantagenet, Viscount Leslie, vice-admiral of England, reciting former grants, including one from William de Montacute, confirmed by Hen. VIII., gave a charter to Poole, ratifying and confirming all former grants (M. & S. 1125).

3 Various enquiries and remarks suggest themselves here: how can many of these be considered corporations in the eye of the law unless the law ignores its own doctrine that only the King can incorporate? Can it be that so late as 1659 when Sheppard wrote, the law considered all these incongruous concerns as corporations? In the march towards incorporation, most of them have since dropped by the wayside. The wonder is that even then, some of them were considered as being in the procession.

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