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We are aware of the distinction between a court and its judges; and are far from thinking it illegal or unconstitutional, however it may be inexpedient, to employ them for other purposes, provided the latter purposes be consistent and compatible with the former. But from this distinction it cannot, in our opinions, be inferred that the judges of the Supreme Court may also be judges of inferior and subordinate courts, and be at the same time both the controllers and the controlled.
The application of these remarks is obvious. The Circuit Courts established by the act, are courts inferior and subordinate to the Supreme Court. They are vested with original jurisdiction in the cases from which the Supreme Court is excluded; and to us it would appear very singular, if the constitution was capable of being so construed as to exclude the court, but yet admit the judges of the court. We, for our parts, consider the constitution as plainly opposed to the appointment of the same persons to both offices, nor have we any doubts of their legal incompatibility:
Bacon, in his Abridgment, says, that “offices are said to be incompatible and inconsistent, so as to be executed by one person, when from the multiplicity of business in them, they cannot be executed with care and ability; or when their being subordinate, and interfering with each other, it induces a presumption they cannot be executed with impartiality and honesty; and this, my Lord Coke says, is of that importance, that if all offices, civil and ecclesiastical, &c. were only executed, each by different persons, it would be for the good of the commonwealth and advancement of justice, and preferment of deserving men. If a forester, by patent for his life, is made justice in Eyre of the same forest, hac vice, the forestership is become void; for these offices are incompatible, because the forester is under the correction of the justice in Eyre, and he cannot judge himself. Upon a mandamus to restore one to the place of town clerk, it was returned, that he was elected mayor and sworn, and therefore, they chose another town clerk; and the court were strong of opinion, that the offices were incompatible, because of the subordination. A coroner made a sheriff, ceases to be a coroner; so a parson made a bishop, and a judge of the Common Pleas, made a judge of the King's Bench,' &c.
Other authorities on this point, might be added, but the
reasons on which they rest, seem to us to require little elucidation or support.
There is in the act, another deviation from the constitution, which we think it incumbent on us to mention.
The second section of the second article of the constitution, declares that the President shall nominate, and by and with the advice and consent of the Senate, 'shall appoint judges of the Supreme Court, and all other officers of the United States whose appointments are not therein otherwise provided for.'
The constitution not having otherwise provided for the appointment of the judges of the inferior courts, we conceive that the appointment of some of them, viz. of the Circuit Courts, by an act of the legislature, is a departure from the constitution, and an exercise of powers, which, constitutionally and exclusively belong to the President and Senate.
We should proceed, sir, to take notice of certain defects in the act relative to expediency, which we think merit the consideration of the congress. But, as these are doubtless among the objects of the late reference, made by the House of Representatives, to the attorney-general, we think it most proper to forbear making any remarks on this subject at present. We have the honor to be most respectfully,
obedient and humble servants, The President of the United States,
In this country, a corporation is a community of men, possessing, in conformity to constitutional or legislative provision, certain property, income, or rights, and subject to certain burdens, distinct from other men.
The objects in the creation of corporations, were to perpetuate succession, without submitting to the embarrassing forms of administration and guardianship, on the decease of incorporators, and to enable numerous bodies of men, acting under a charter, as municipal, pecuniary, or other associations, to negotiate as an individual.
Our elementary books ascribe the invention of corporations, to the Romans, soon after the building of the city. But traces of corporations are found in the Grecian laws, and doubtless would be among the Egyptians, Babylonians, and still earlier people who dwelt in cities, and had municipal governments, if the histories of their internal concerns had descended to our time; for something like corporate provisions was found indispensably necessary on the first formation of civil society on a more extensive scale than patriarchal governments. The motive of their formation, was to enable communities to sustain their common burdens, and participate their common privileges in a simple, convenient, and equal manner.
The modes of corporate existences, and the laws by which they were governed, were more or less explicit, and well or ill adapted to their purposes, according to the progress of municipal learning.
Most of our knowledge of their organization and history, is derived from the civil and common law. There they are found in all the varieties of formation, from those that had scarcely the shadow of power and being, to the great monopolies, with power to trample down all individual rights that stood in the way of their rapacity. These might in their day have been adapted to the purposes of government, and the forms of society. But those societies and institutions have passed away.
In England, corporations are divided into aggregate and sole, the latter of which, they claim the merit of having invented. The incidents to a sole corporation are of such a character, that the honor of the invention will probably never be disputed. This division is of little value in the United States. Few sole corporations exist here, and are of trifling importance.
Aggregate corporations are divided into two kinds. 1. Lay.
2. Ecclesiastical. Of the latter very few exist in this country.
Lay corporations, again, are divided into two kinds. 1. Civil.
2. Eleemosynary. The latter of these, are for the distribution of charity. We have many such. But by far the greater portion of our corporations are civil, consisting of municipalcommnnities, and trading or stock-holding companies; being but a subdivision of one of the three classes into which English corporations are divided.
The mode of their formation here is simplified as much as their character. Of the various forms of their creation in Europe, we have selected but one, namely, legislative grant. And ours are substantially all formed in that mode; those which are allowed to be proved by reputation, being only ancient ones whose charters are lost, and there, it is presumed, there was formerly a legislative charter, which is destroyed by time and accident.
Thus freed from the embarrassment of variety in these respects, it might be supposed, that the laws on the subject were simple. It is far otherwise. The doctrine is now better understood than formerly, and legislative and judicial correction has been usefully applied to qualify the extravagant consequences resulting from the application of corporate powers as formerly understood.
But still the system is defective, and requires for its correction, the best efforts of the jurist. In England, trading and stock-holding corporations, are not of ancient origin. It was not till recently, that they became numerous there. In our republics, they are still more numerous, and it is difficult to set bounds to the general desire to increase them. This desire naturally grows from the genius of our institutions ; for our governments, political and municipal, are founded on corporate principles. In Massachusetts alone, the chartered capital of banks and insurance offices, amounts to about $30,000,000. And the various manufacturing companies have charters to hold a still greater amount. In addition to these, are the various turnpikes, bridges, canals,--and many other corporations, created for the mere purpose of holding and managing wharves, public houses, and other estates. These already embrace a large portion of the property of the state, and some of them are of such an accumulating character, that unless restrained by legislative enactment, judicial construction, or the good sense and discretion of the stockholders, they will absorb the greatest part of the substance of the commonwealth.
The extent of the wealth and power of corporations among us, demands that plain and clear laws should be declared for their regulation and restraint ; for without a salutary and strict control over them, every one may be compelled to adopt the fears of the Roman Emperor, who, when requested to institute a fire company of one hundred and fifty men, on an assurance that they should not extend their powers beyond the objects of the association, refused the grant, observing that associations had greatly disturbed the peace of cities, and whatever name he gave them, they would not fail to be mischievous. 2 Kent Com. 217.
The doctrine of corporations, in this country, on account of their extent, as well as the defective state of their existence and operation, presents a most interesting field of inquiry to American jurists, and demands that their best energies should be applied to the subject, that corporations may be protected and wisely directed in effecting the great public and private good, of which they are capable, and restrained from inflicting the public and private evils within their power, and to which they are often tempted by their own views of interest.
Among the incidents of a corporation at common law, unless estrained by their charter, are: To bave perpetual succession; to have a common seal; to make by-laws; to sue and be sued; and to purchase, take, hold, manage, grant, and dispose of lands and personal property. Such is the language of the English common law, and if it be here in force, it follows, that if A, B, and C, and their associates, are by a legislative act, by a single section created a corporation, without declaring or limiting their operations, they have the power to organize, to perpetuate their existence, by receiving new members, who shall have all the rights of the original corporators, and be considered associates, (for they can have no successors,) to trade, buy, hold, manage, and sell, any and all estates to an indefinite extent, to make and enforce contracts, all of which they do as an individual, in their corporate name. In fine, they have collectively all the rights and powers of individuals, excepting those of a political and moral character. With the want of political and moral powers, they are of course exempted from corresponding responsibilities.
The quaint language of Lord Coke, and other venerable ancient luminaries of the law, describing corporations as having no souls or consciences, as mere capacities to sue and be sued, has been productive of much mischief, and led to many judicial decisions, which the enlightened reason of this age cannot but deplore. From such doctrines, the managers of corporations have sometimes been led to forget that they had souls and moral responsibility; and in the performance of what they deemed their duty, in the corporate name, they have done such things as, on their individual responsibility, they would never have ventured to do.