5. It was formerly asserted that in England the act of incorporation must be the immediate act of the king himself, and that he could not grant a license to another to create a corporation.' But the law has since been well settled to the contrary; and the king may not only grant a license to a subject to erect a particular corporation, but give a general power by charter to erect corporations indefinitely. This is on the prin

and the persons, to

ciple that qui facit per alium facit per se; whom the power of establishing corporations is delegated, are only an instrument in the hands of the government. In this manner the chancellor of the university of Oxford is authorized to grant corporate privileges, and has, by virtue of such authority, created several matriculated companies of tradesmen.* Before the revolution, charters of incorporation were granted by the proprietaries of Pennsylvania, under a derivative authority from the crown; and those charters have been recognized since the revolution. A similar power has been delegated, by the

the name of "The President, Directors and Company of the Bank of North America;" That it be recommended to the several States to provide that no other bank shall be established or permitted within the States, during the war: That the notes thereafter to be issued by the bank, payable on demand, should be receivable in payment of all taxes, duties and debts payable to the United States: That Congress will recommend to the legislatures of the States to pass laws, making it felony for any person to counterfeit bank notes, or to pass them, &c. Under these resolutions, a subscription was opened for the national bank, and before the end of December, 1781, the subscription was filled, from an expectation of a charter of incorporation from Congress. The charter was granted by Congress, with a recommendation to the legislatures of each State, to pass such laws as they might judge necessary for giving its ordinance full operation. This recommendation was complied with by Pennsylvania, on the 18th of March, 1782; by Rhode Island, in January, 1782; and by Massachusetts, in January, 1782. See Lectures of Hon. James Wilson, one of the Judges of the U. States Supreme Court, and Professor of Law in the College of Philadelphia, (vol. iii. p. 397.)

1 10 R. 27.

21 Kyd, 50.

31 Black. Comm. 473.

• Ibid.

53 Wils. Lect. 409.

legislature of Pennsylvania, with regard to churches.' The acts of the instrument, in these cases, become the acts of the mover, under the familiar maxim above mentioned.

The rule operates to authorize the legislature of a Territory of the United States to establish corporations; such power falling within the general legislative powers conferred by Congress. Accordingly, it has been held that Missouri, when a Territory, might incorporate towns. The right being reserved by Congress to disapprove, and thereby revoke, any act passed by the territorial legislature, the court, in this case, considered did not render the power of such legislature less sovereign, in relation to one subject of legislation, more than another."

§ 6. No precise form of words is necessary in the creation of a corporation. And if the words "found," "erect," "establish," or "incorporate," are wanting, it is not material. It was held in ancient times, if the king granted to a vill gildam mercatoriam, it was by such grant incorporated." So, if the king granted to a vill to be quit of toll, it was, for that purpose, incorporated. Or, if he granted lands to them, he gave them a corporate capacity to take, if a rent was reserved. And, in England, there are many instances of grants by charter to the inhabitants of a town "that their town shall be a free borough," and that they shall enjoy various privileges and exemptions, without any direct clause of incorporation; and yet, by virtue of such charter, such towns have been uniformly considered as incorporated. The joint stock banks in England, which are of modern creation, and called into existence by the act of 7

1

1 3 Penn. Laws, 40; Case of St. Mary's Church, 7 S. & Rawle, (Penn.) R. 517.

* Riddick v. Amelin, 1 Misso. R. 5.; in Error, per Cooke J.

3 Rex v. Amery, 1 T. R. 575.

4 10 Co. 40 b.

51 Rol. 513.

6 4 Com. Dig. Tit. Franchises, (F. 6.)

7 Ibid. The grant of gilda mercatoria, it seems, however, did not invest the grantees with the local government of the place; for a gilda mercatoria established in a town might be distinct from the general corporation of the town. 1 Kyd, 64. And in most of the royal boroughs in Scotland, there are several incorporated companies of trades, and a gildry, which is also an

George IV., are considered as quasi corporations, as the act provides for the continuance of the partnership, notwithstanding the change of partners. And a mining joint stock unincorporated company was deemed a quasi corporation, because a suit for demands against the company might, under an act of Parliament, be brought against the directors. It has been held that, where a charter was granted to one, and provision was made for taking associates, and calling a meeting of them, that it was a condition subsequent, and that the neglect would not prevent the taking effect on the exercise of the powers granted by it. The legislature have power to permit one person or his successor to exercise all the corporate powers, and to make his acts, when acting upon the subject-matter of the corporation, and within its sphere of action and grant of powers, the acts of the corporation. And the grant of corporate powers to one person, and his associates and successors, does not require of such person that he should take associates, before the act can take effect, or corporate powers be exercised, but virtually confers on him alone the right to exercise all the corporate powers thereby granted. The act of the State of Arkansas, creating a State Bank, simply declares that a bank shall be established, designated by name. There are in it no express words incorporating any particular persons, but the fund is placed under the management and control of a given number of directory, who are required to be elected by the legislature, and the usual powers of banking conferred upon them. Though the court pronounced the act exceedingly vague and ambiguous, yet said it was nevertheless capable of being defined and understood; and, taking all its parts together, and considering it as an entire whole, they thought no doubt

incorporated company, but distinct from the others; and the magistracy of the town is composed of members partly taken from the gildry, and partly from the traders. 1 Kyd, 65.

'Harrison v. Timmins, 4 M. & S. 510.

'Ibid.; and Wordsworth on Joint Stock Companies, 41, 275. Day v. Stetson, 8 Green. (Me.) R. 365.

Penobscott B. Corporation v. Lamson, 4 Shep. (Me.) R .12, 224.

could be entertained that it was the intention of the legislature to incorporate the directory, and that all the affairs of the corporation were put under their government. The directory, say the court, it is true, are not declared in express words to be incorporated, but still, the powers and authority conferred upon them, in regard to banking, cannot exist, unless they are incorporated. In the understanding of the court, all the authorities show that a corporation may be established by necessary implication, as well as by express grant.' These authorities go to establish, that, whenever the language manifests the intention of the government to confer corporate privileges, they may be conferred without the adoption of any particular technical phraseology, or minutely descriptive language. In all grants of corporate privileges to private companies and associations, not of a municipal character, the word "incorporate" is generally, however, adopted by the legislature.

In a case in Pennsylvania, it was supposed that "the Farmers' Bank of Lancaster" was virtually incorporated by the "Act relating to the association of individuals for the purpose of banking." By that law it was enacted that, if any association of citizens should thereafter be formed for the purposes of banking, every member thereof should be individually and personally liable for the debts of the association. The court held, that this provision could not be construed into an implied incorporation of the bank above mentioned, or of any other company; and they were of opinion, that the most that could fairly be inferred was, that the act was an acknowledgment that such associations were lawful until prohibited by the legislature. The intent of the law, the court said, was to prevent associations that were about to be formed, the members whereof endeavored to shield themselves from personal responsibility, by publishing to the world that they undertook to transact business on the express condition of being exempt from

1

Mahoney v. Bank of Arkansas, 4 Ark. R. 620. Opinion by Lacy J. The Reporter of the Sup. Court of Arkansas, Albert Pike.

1 Kyd, 63; see Intr. as to quasi corporations. Falconer v. Higgins, 2 M'Lean (Cir. Co.) R. 195.

such responsibility. And the court asked how it could be supposed for a moment that there should be an intention to incorporate associations, without number and without end, free from all restraint and limitation, when in no instance had a banking company been incorporated, before or since, without restriction as to the amount of its capital, the nature of its business, and the extent of its duration. The Supreme Court of Pennsylvania were, under an act of 1791, empowered to certify that they confer on certain associations the powers and immunities of corporations; but they will not do so where the constitution of an association confers powers not specified in that act. Therefore, where the constitution of a Medical College, submitted to the court, contained a clause authorizing the college to confer degrees in medicine upon students and others, the court declined certifying in favor of the application." Associations, formed under the general banking laws of New York, are corporations.

$ 7. Something more than the mere grant of a charter is necessary to create a corporate body; for it is necessary that the charter should be accepted, in order to give it full force and effect; as the government cannot compel persons to become incorporated without their consent. The intention of a grant of incorporation is to confer some advantage upon the grantees; but as the grant may be counterbalanced by the conditions which accompany it, the grant must be accepted by a majority, at least, of those who are intended to be incorporated. Mr. Justice Wilmot said, in the case of Rex v. Vice Chancellor of Cambridge,3-"It is the concurrence and acceptance of the university that gives the force to the charter of the crown." It is clear that government cannot enforce the acceptance of a charter by a private corporation without consent: for "no corporator

1 Myers v. Irvin, 2 S. & Rawle, (Penn.) R. 368. See Bank of Watertown v. Assessors, 25 Wend. (N. Y.) R. 686; Jackson v. Bank of Marietta, 9 Leigh, (Virg.) R. 302.

2

* Medical College Case, 3 Whart. (Penn.) R. 445.