Such are some of the features of corporate being and rights at common law. In Massachusetts they remain generally unqualified; but in England and some of the states these powers have been greatly restrained and limited by legislative enactment. The time was when it was the generally received doctrine that corporations could contract and act only by their common seal. They were considered incapable of committing crimes, doing moral or personal acts of any kind. They became liable for nothing by implication, and had more capacity to acquire and hold, than liability to yield to the just claims of

others.

Experience and the wisdom of modern times have demonstrated the necessity of regulating the rights and liabilities of corporations, so far as the condition of their being permitted, by the same principles of law that govern individuals. To effect this the judicial tribunals of our age have labored with an honest and not unfruitful zeal. The barriers of irresponsibility, by which corporations were formerly surrounded, have been successfully invaded, and partially broken down; but much yet remains to be done to secure to the public all the benefits that these bodies are calculated to give, and protect individuals from the evils which they have the power to inflict. The boldest and most effectual step in this career of improvement, was the judicial decision that corporations are liable in indebitatus assumpsit.

It is now the settled law in this country, established by the Supreme Court of the United States, and by the highest judicial tribunals in many of the states, that corporations can establish rights and incur liabilities by implication.

This principle was fully settled in the case of the United States Bank v. Dandridge, which was ably argued, and is reported in 12 Wheaton, 64. In this case, which was decided in 1827, Chief Justice Marshall dissented from the court and gave his opinion at length. As was natural to expect, when the decision of the court was opposed by so great an authority, the whole strength on both sides was put forth. Every authority and argument, for and against the position, are there presented; and few more elaborate and satisfactory reports can be found.

Chief Justice Marshall said he believed that his opinion, which had been declared in the court below, gave general surprise to the profession, and was generally condemned; still he adhered to it. The case is now before the nation, and Judge Marshall, great as the authority of his opinion is, will

have increasing cause to find that in this case he is disapproved.

Forensic and judicial opinion had for an age been approximating to that declared by the court. In 1812, an action of trover had been sustained in England against a corporation, (Yarborough v. The Bank of England, 16 East, 6,) and in 1813, in Massachusetts, it was deliberately decided, on the exception expressly taken, that an action on an implied assumpsit would lie against a corporation. Hayden v. Mid. Turnp. Cor. 10 Mass. R. 397. In this case the court said, if no direct decision in favor of the point could be found, it had been, years before, impliedly decided in that court in several cases.

Although now corporations are more subject than formerly, to the laws that govern individuals, and thereby much of their irresponsibleness is taken away; yet they have advantages over individuals, in the great capitals with which they usually operate, and the enduring quality of their being; which enable them to persevere in their objects for ages with a steady aim, and undiminished capital, free from the paralyzing effects of inexperienced youth, or superannuated age, and the distribution of estates, which occur in the succession of generations, and frequently check individual operations both by want of capacity and capital.

It is the opinion of many that individuals without more protection cannot maintain a fair competition with corporations, if here they have all the English common law incidents attached to them. And in England and some of the states they have been subjected to various restraints.

In England, corporations, unless it is expressly otherwise provided by the charter, are now limited and rendered incapable of taking lands without the king's license. This has been effected by a series of statutes, called the statutes of mortmain. They were at first designed to restrain the accumulations of ecclesiastical corporations. But the statute, 15 Rich. 2. 65, declared that civil or lay corporations were within the mischief, and it brought them within the prohibition. The common law capacity of taking and holding lands by corporations is now, in that country, wholly taken away by statute.

The statutes of mortmain are in force in Pennsylvania; and there, they hold all deeds and devises of lands to corporations void, unless sanctioned by their charters. 3 Binney, 626.

In New York the statutes of mortmain are not in force, but there they hold, that by force of their statutes, no religious corporation can sell without an order from the chancellor. The evils felt by the power and growing number of corporations in New York, induced them, on the amendment of their constitution, made in 1821, to provide that in future no corporation should be created or renewed, without the consent of two thirds of the members elected to each branch of the legislature. By their general statute of wills, now in force, they withhold from corporations, the power to become devisees of real estate, and in their grants of charters for private benefit they now usually insert a clause empowering the legislature to alter, modify, or repeal the charter at pleasure. And yet, with all these guards against the power and multiplication of corporations, the ablest jurists in New York, speak of them as growing evils. 2 Kent Com. 219.

In Massachusetts, where probably there is a greater propensity to multiply corporations than any where else, they have all the incidental powers, unrestrained by statutes of mortmain or wills; and generally they are granted without a clause, reserving to the legislature, the power to repeal or modify them. We can look for restrictions only to the charters, or the general statutes regulating and prescribing the powers and duties of particular classes of corporations, which are referred to in the particular charters, and made a part of them. And it has been determined in that state that a corporation can take devises and bequests in trust for pious and charitable uses. 12 Mass. Rep. 546.

With these broad powers existing in the great and rapidly increasing numbers of corporations, this branch of jurisprudence assumes an importance in Massachusetts, and a few other states, greater than it possesses elsewhere; and the Union may look to the profession in this part of the republic, for a just exposition of the rise, progress, power, liability, decline, and dissolution of corporations.

It seems to be clear, that we have no corporations but such as refer their existence to legislative grant. But when created, unless their powers are limited in the charter, they must be possessed of all the acknowledged common law incidents to them. Some are created for limited purposes. These have been called quasi corporations. That means, that they are

beings of legislative creation, resembling corporations. But they must in truth, be corporations, or they are nothing.

It is common, in making grants by our legislatures, to provide that the companies may do certain things mentioned in the charters; and that they may purchase, manage, and hold real and personal estate, to a specified amount. At common law, by being made corporations, they acquired these rights without limitation. Such language in the charters, although in the form of granting privileges, and clothing the grantees with powers, is wholly inoperative, as all those powers are incident to their being, unless it be judicially determined to be language of limitation and restraint. By determining such language in the grants to have that effect, many, if not most of the evils to be apprehended from the exercise of corporate powers, will be avoided. And such may well be considered the meaning of the legislatures which made the grants, unless it be assumed that they were well versed in the rules of common law, and knew that the powers they carefully and specifically provided for the corporations were theirs as incidents to their becoming corporations, without farther legislative provision. And such appears to be the view of the subject taken by the Supreme Judicial Court of Massachusetts. They have decided that towns, parishes, and school districts have powers only sufficient to effect the purposes and perform the duties assigned to them by the legislature; and when they attempt to exceed these powers, their acts are void. 13 Mass. Rep. 272, 198. And in The First Parish in Sutton v. Cole, the court said, although the statutes of mortmain were not in force, still it might be inferred from the special power given to various corporations by acts of the legislature, to hold real and personal estate to a limited extent, that corporations created for specific objects, would not have the power to take and hold real estate for purposes wholly foreign to those objects.' 3 Pick. Rep.

240.

It is difficult to discover the reason why the common law clothed corporations on the moment of their springing into being with so many important rights. It vested equal power in all, though the objects for which they were created were almost as various as human operations, some being extremely limited in their objects, and affecting the interests of but few individuals, and others operating on the most valuable rights of large communities. These cannot require prerogatives and

privileges of equal extent; and in this respect the common law seems to have failed of its usual excellence in its adaptation to the wants of society.

A sounder rule seems to be that every corporation should be considered as invested with all the powers necessary to effect the legal purposes for which it was created, and no more. Whether the establishment of such a rule requires legislative provision, or may be achieved by judicial construction, depends on the question, whether the English common law relative to corporations has been adopted in its full extent in the several states, or whether it remains unsanctioned, or has become obsolete. In many parts of the country the common law doctrine has been questioned, and in some distinctly denied. The author of the Commentaries on American Law says, that the modern doctrine is to consider corporations as possessing only such powers as are specifically granted in the act of incorporation, or are necessary for carrying into effect the powers expressly granted. 2 Kent's Com. 239. Some support to this position may be found in a case decided in the United States Court in 1804, (Head v. the Providence Insurance Co. 2 Cranch, 167,) where the court treated the insurance company as not having all the common law incidents to corporations, and chose to look to the charter to ascertain the extent of its powers. And in New York, in 1818, in the case of the People v. The Utica Ins. Co. (15 Johns. 383,) Ch. J. Thompson said : Many powers and capacities are tacitly annexed to a corporation, duly created; but they are such only as are necessary to carry into effect the purposes for which it was established. The specification of certain powers operates as a restraint to such objects only, and is an implied prohibition of the exercise of other and distinct powers.' The courts in Massachusetts have made many decisions, from which it must be inferred that they favor the doctrine, and are inclined to adopt it, that corporations have no powers but such as are plainly granted in their charters, or are clearly necessary to effect the useful purposes for which they were created. Such rules of construction can hardly yet be considered as establishany where in their full extent. In the courts above referred to, the common law incidents to corporations are sometimes cited with approbation, and in other state courts they are generally referred to without qualification. The evident utility of the new construction will probably soon recommend it to general adoption.

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