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Mr. President and Gentlemen of the Association:
The objects of your Association are defined in the first Article of its Constitution in these words:
“ To advance the science of Jurisprudence, promote the administration of Justice and uniformity of Legislation throughout the Union, uphold the honor of the profession of the law, and encourage cordial intercourse among the members of the American Bar."
The purposes thus declared indicate the wide range of topics appropriate to the annual address for which your ByLaws provide.
It was truly said by the eminent and learned orator at your second annual meeting (Mr. Cortlandt Parker) that nothing tends more to uphold the honor of our profession than to recall its heroes from the past, and dwell on their usefulness to the country. And so, in former years, we have listened with instruction and delight to discourses worthily commemorating the learning, the virtues, and the public services of Marshall and Taney, of Hamilton and Madison, of Paterson, Petigru, and Legare. More recently, your purpose of promoting the administration of justice was illustrated by an address replete with important suggestions for improving the mode of trial in the United States—the fruit of ripe experience and thoughtful observation ; while other eminent jurists, on your invitation, have sought to advance the science of Jurisprudence-one by a masterly survey of American laws and institutions based upon the Common
Law, another by pointing out, with singular learning and research, the relations and the obligations of that system to the Civil Law, the most enduring triumph of Roman genius.
It is not less appropriate to the objects of this Association, composed of lawyers from all parts of the United States, who are not only familiar with the daily operation of existing statutes upon the vast and varied interests of our people, but also capable of largely influencing the legislation of their respective States, to consider how far those statutes, in respect of any subject of general importance, fall short of securing the ends designed by them, and in what respects they may be simplified or improved.
Especially is this true of those statutes commonly known as General Corporation Laws. By these I do not mean all laws relating to corporations—much less the Law of Corporations in general as expounded by the courts. I refer only to those general Acts, under and in virtue of which private corporations may be formed for purposes of common profit, by the voluntary action of individuals; which provide the machinery for organizing and operating such corporations, and prescribe their rights and powers, including the delegation to certain classes of them of extraordinary powers peculiar to the State itself; and by means of which, and of the facilities and privileges so conferred, and of the vast aggregations of capital thus made practicable, wholly new economic conditions have arisen, presenting for solution not only new questions of law, but new political and social problems of the gravest importance.
But the suggestions I shall offer to you in regard to these Acts, relate only to one aspect of them—namely, the conditions upon which such privileges are granted to individuals, and the sufficiency of the precautions taken against the misuse of those powers. It would be quite beyond my appropriate limits either to analyze their provisions in detail, or to discuss the larger questions of State policy which they involve.
Perhaps no branch of municipal law has shown greater or more rapid development, during fifty years past, than that relating to private corporations; whether in respect of the new legislation to which it has given rise, both constitutional and statutory, or the mass and variety of important litigation it has involved, or the novel and difficult questions presented by that litigation. Not that the conception of a corporation, as an artificial person distinct from the individuals composing it, and clothed by law with rights and powers of its own, is a modern one. It is found in the Roman law, though at first only in a rudimentary shape. Blackstone, on the authority of Plutarch (1 Bla. Comm. 468), attributes the invention of corporations to Numa Pompilius ; though Chancellor Kent (2 Comm. 268) mentions indications in the Pandects that their origin was to be found in the laws of Solon. The Digest of Justinian clearly distinguishes between the rights and liabilities of the corporate whole and those of individual members. Si quid universitati debetur, singulis non debetur ; nec quod debet universitas singuli debent. (Dig. III, 4; Lex 7, $ 1.)
I need not remind you how fully that conception was developed in the Common Law, nor of the historical importance of the municipal and trading corporations of the Middle Ages, nor of the jealousy of ecclesiastical corporations, so emphatically expressed in the English statutes of mortmain. The saying that corporations have no souls is at least as old as Lord Coke; and the logic by which, as reported in Bulstrode (Tippling v. Pexall, 2 Bulst. 233), Manwood, Chief Baron, as long ago as 1613, demonstrated its truth, leaves nothing to be desired. Says the reporter :
“The opinion of Manwood, Chief Baron, was this, as touching corporations, that they are invisible, immortal and that they have no soul. A corporation is a body aggregate, none can create souls but God, but the King creates them, and therefore they have no souls.”
The legal conception of a corporation always potentially
included the legal problems which nowadays puzzle so many courts and give occupation to so many lawyers; just as a drop of nucleated protoplasm, according to modern biologists, contains all “the promise and potency” of the most highly organized matter.
But it is only under favorable conditions that these problems emerge for solution—to say nothing of those economic and political questions as to the advantages and dangers of corporations and joint stock companies which have come to be so widely, if not always wisely, discussed. Such conditions are now afforded by the immensely increased facility of constructing and employing this most powerful instrument of modern industrial civilization ; with the result, on the one hand, of its application on a scale deemed alike impossible and undesirable by some of the wisest political economists of former generations, and, on the other, of complaints and apprehensions which, if well founded, demand the most earnest consideration by their successors.
This increased facility is chiefly due to the General Corporation Laws which are now in force in every State in the Union. (1 Morawetz Corp. $ 38.) In twenty-four States the Constitution forbids the legislature to create any corporation except through general laws, and a like prohibition is imposed upon Territorial legislatures by section 1889 of the Revised Statutes of the United States; though in some States this prohibition does not include municipal or charitable corporations, while in Alabama and Georgia the legislature may still grant special charters to manufacturing, mining and some other industrial and business companies. The difference, in point of delay, trouble and expense, between forming a private corporation under a general law, and obtaining a special charter, may be likened to that between modern traveling by railroad and the old fashioned stage coach. For although the English parliamentary practice of private bill legislation, with its attending difficulties and delays, never obtained in this country, and the numerous special charters formerly con
tained in the Session Acts of the various States show the great and constantly increasing demand for them—while the extraordinary privileges and exemptions sometimes conferred in such charters equally show the ' recklessness with which they were too often granted—yet the comparative brevity and infrequency of legislative sessions, the pressure of other public business, and the antagonism of rivals, to say nothing of agents' expenses, all tended to restrict their number. Under a general corporation law, the enterprise being once agreed on, it is usually required only that the parties interested shall execute in due form, and file in some designated public office, a brief certificate, setting forth certain particulars concerning the objects and organization of the proposed corporation, and pay certain moderate fees: upon which they become entitled to receive from the Secretary of State-or, in some States, from the court to which the application must be made-a certificate which is equivalent to a legislative act of incorporation. And it is familiar law, that the corporate rights thus acquired, being accepted and exercised, can be impeached only by a direct proceeding in the name and behalf of the State.
All this is so familiar to us that we are apt to overlook its significance, as one of the political and social phenomena attesting and largely contributing to the unexampled development of the material and business interests of this country. Professor Hadley, in the opening paragraph of his very valuable work on Railroad Transportation, describes the industrial revolution which has taken place in this country within fifty or sixty years past as even more important than the political revolution of the last century; and refers to the enormous development of our transportation system by means of railroads, as the most important symptom of national activity in business or in politics. But the railroad is only one of the numerous classes of corporations which are being constantly organized under general laws. It cannot be doubted that such laws, in respect of all classes of private