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Page:Harvard Law Review Volume 2.djvu/131

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towns early in the present century, and later the laying of rail- ways, created a wide-spread necessity for united capital.

The outline sketch just given of the growth of business corpora- tions shows that they are not a spontaneous product, but are rather the result of a gradual development of earlier institutions, running back farther than can be traced. It would be strange if signs of this development were not found in the history of the law relating to them. The natural expectation would be, and such is in fact the case, that as to the points which modern business cor- porations have in common with the early guilds and municipalities, the law relating to them dates back farther than almost any other branch of the law, while as to the points which belong exclusively to the conception of the business corporation, the law has been formed very largely since 1800. And not only had a body of new law to be thus formed, but old doctrines laid down by early judges as true of all corporations, though in reality suited only to the kinds of corporations then existing, had to be discarded or adapted to changed conditions.

In the first place, then, the endeavor will be to examine the points which belong essentially to every kind of corporation, and afterwards to consider what was settled before the present century in regard to the peculiar relations arising from the nature of a business corporation.

In the case of Sutton's Hospital,^ decided in 161 2, the general law of corporations was considered at some length, and the follow- ing things were said to be *' of the essence of a corporation : * ist, Lawful authority of incorporation, and that may be by four means, viz., by the common law, as the king himself, etc. ; by authority of Parliament ; by the king's charter ; and by prescription. The 2d, which is of the essence of the incorporation, are persons to be incorporated, and that in two manners; viz., persons natural, or bodies incorporate and political. 3d, A name by which they are incorporated. 4th, Of a place, for without a place no incorpora- tion can be made. 5th, By words sufficient in law, but not re- strained to any certain, legal, and prescript form of words."

This, then, was the mould in which every corporation had to be cast, regardless of what might be its nature or its purpose.

The first requirement, due authorization, existed in the Roman

1 10 Rep. 22 b. * 10 Rep. 29 b.