Where a corporation was created by patent or charter there seems formerly to have been an especial importance attached to the patent itself; as indeed one might expect to find where so much weight was given to mere form. The place of the corporation and the place where the patent was kept were naturally the same; indeed, it was often necessary to have the patent at hand. So late as 1724 it was said by counsel arguendo (and apparently acquiesced in by all parties) that "when private corporations sue, they must produce their charter or grant by which they are constituted, and show to the court that they have a name and a capacity to sue." 5 Whether there was a legal necessity to have the patent at hand whenever an act was to be done by the corporation it may be impossible to say. There seems at any rate to have been a general belief that the power of the corporation to act, if not its very existence, was bound up in its charter." governing of New England, in America" was established "in our town of Plymouth, in the county of Devon." Plymouth Colony Laws, p. 4. This company granted William Bradford and his associates, who had then been actually settled in Plymouth for seven years, the right “at all tymes hereafter to incorporate by some usual or fitt name and title.” Ibid. p. 25. The Massachusetts Bay charter incorporated the members by the name of "The Governor and Company of the Mattachusetts Bay in New England." Ancient Charters & Laws of Mass. Bay, p. 8. It seems however not to have been contemplated that the corporation should exist elsewhere than in England, though no place was expressly named in the charter. Thus, for instance, it was provided (p. 9) that the General Courts should "make laws and ordinances for the good and welfare of the said company, and for the government and ordering of the said lands and plantation, and the people inhabiting and to inhabit the same," thus making a distinction between the government of the company and of the lands to be settled which would have been useless if a corporation settled in the colony were contemplated. A trading company was in mind, like the East India company, with the additional feature of a colony planted by but not itself constituting the company. The charter of the colony of Bermuda incorporated "The Governor and Company of the city of London for the plantation of the Somer Islands." 1 Hutch. Hist. Mass. 336. • Dutch West India Co. v. Van Moses, 1 Strange, 612. • Thus when it was decided to transfer the government of the Massachusetts Bay colony to New England the patent went too. "Mr. Deputy It is not necessary to press this notion too far, to prove that a body incorporated by a foreign government could have had no standing in England. It was well on in the seventeenth century before the common-law courts would allow any fact to be proved which took place outside the realm; such for instance, as the fact of incorporation abroad. A foreign incorporation, therefore, could at this time afford no protection to the members of it. It was only in 1730 that it was finally held that a foreign corporation could sue in England." Even there, the cause of action did not arise out of a transaction by the corporation in England; the obligation arose abroad, and the only difficulty consisted in proving the incorporation. "Upon the trial," the reporter says, "Lord Chancellor King told me he made the plaintiffs give in evidence the proper instruments whereby by the law of Holland they were effectually created a corporation there." Up to very late times there is no trace of a foreign corporation doing active business in England; and foreign corporations are almost unnoticed in the English treatises on the law of corporations. 9 In the United States very few corporations existed before the beginning of the last century. There were, however, a few corporations, for banking, insurance and manufacturing purposes; and no doubt one or two English companies put it to the question as followeth: As many of you as desire to have the patent and the government of the plantation to be transferred to New England, so as it may be done legally, hold up your hands. So many as will not, hold up your hands. Where by erection of hands it appeared by the general consent of the Company, that the government and patent should be settled in New England." 1 Mass. Col. Rec. 51. This notion of the peculiar virtue of the patent appears also in the wellknown incident of hiding the Connecticut charter in the Charter Oak. See Washburn's Judicial History of Massachusetts, p. 14, note, where much the same observation is made. 7 Dutch West India Co. v. Van Moses, 1 Strange, 612; in error, Henriques v. Dutch West India Co., 2 Ld. Raym. 1532. 2 Ld. Raym. 1535. • Williston on History of the Law of Business Corporations, 2 Harv. Law Rev. 165. Where a corporation was created by patent or charter there seems formerly to have been an especial importance attached to the patent itself; as indeed one might expect to find where so much weight was given to mere form. The place of the corporation and the place where the patent was kept were naturally the same; indeed, it was often necessary to have the patent at hand. So late as 1724 it was said by counsel arguendo (and apparently acquiesced in by all parties) that "when private corporations sue, they must produce their charter or grant by which they are constituted, and show to the court that they have a name and a capacity to sue." 5 Whether there was a legal necessity to have the patent at hand whenever an act was to be done by the corporation it may be impossible to say. There seems at any rate to have been a general belief that the power of the corporation to act, if not its very existence, was bound up in its charter." governing of New England, in America" was established "in our town of Plymouth, in the county of Devon." Plymouth Colony Laws, p. 4. This company granted William Bradford and his associates, who had then been actually settled in Plymouth for seven years, the right "at all tymes hereafter to incorporate by some usual or fitt name and title." Ibid. p. 25. The Massachusetts Bay charter incorporated the members by the name of "The Governor and Company of the Mattachusetts Bay in New England." Ancient Charters & Laws of Mass. Bay, p. 8. It seems however not to have been contemplated that the corporation should exist elsewhere than in England, though no place was expressly named in the charter. Thus, for instance, it was provided (p. 9) that the General Courts should "make laws and ordinances for the good and welfare of the said company, and for the government and ordering of the said lands and plantation, and the people inhabiting and to inhabit the same,' thus making a distinction between the government of the company and of the lands to be settled which would have been useless if a corporation settled in the colony were contemplated. A trading company was in mind, like the East India company, with the additional feature of a colony planted by but not itself constituting the company. The charter of the colony of Bermuda incorporated "The Governor and Company of the city of London for the plantation of the Somer Islands.” 1 Hutch. Hist. Mass. 336. 5 Dutch West India Co. v. Van Moses, 1 Strange, 612. • Thus when it was decided to transfer the government of the Massachusetts Bay colony to New England the patent went too. "Mr. Deputy It is not necessary to press this notion too far, to prove that a body incorporated by a foreign government could have had no standing in England. It was well on in the seventeenth century before the common-law courts would allow any fact to be proved which took place outside the realm; such for instance, as the fact of incorporation abroad. A foreign incorporation, therefore, could at this time afford no protection. to the members of it. It was only in 1730 that it was finally held that a foreign corporation could sue in England." Even there, the cause of action did not arise out of a transaction by the corporation in England; the obligation arose abroad, and the only difficulty consisted in proving the incorporation. "Upon the trial," the reporter says, "Lord Chancellor King told me he made the plaintiffs give in evidence the proper instruments whereby by the law of Holland they were effectually created a corporation there." Up to very late times there is no trace of a foreign corporation doing business in England; and foreign corporations are unnoticed in the English treatises on the law of cor active almost porations. In the United States very few corporations existed before the beginning of the last century. There were, however, a few corporations, for banking, insurance and manufacturing purposes; and no doubt one or two English companies put it to the question as followeth: As many of you as desire to have the patent and the government of the plantation to be transferred to New England, 9 So as it may be done legally, hold up your hands. So many as will not, hold up your hands. Where by erection of hands it appeared by the general consent of the Company, that the government and patent should be settled in New England." 1 Mass. Col. Rec. 51. This notion of the peculiar virtue of the patent appears also in the wellknown See Washburn's Judicial History of Massachusetts, p. 14, note, where much the Same observation is made. 1 Dutch West India Co. v. Van Moses, 1 Strange, 612; in error, v. Dutch 12 Ld. Raym. 1535. West India Co., 2 Ld. Raym. 1532. Henriques Williston on History of the Law of Business Corporations, 2 Harv. Law Rev. 165. were doing business here. The number increased steadily and rapidly from the beginning of the century; and as many corporations extended their operations into the neighboring States, questions as to the legal standing of corporations outside the charter State became of great importance. These corporations were almost all created to do business in the incorporating State, but were able to extend their business beyond the borders of the State. The practice of creating corporations intended to act only, or chiefly, in foreign States was probably not yet dreamed of. There were, to be sure, corporations like the East India Company, formed to trade in foreign parts; but the headquarters of the trade was really in England. Such a corporation must, however, have made the transition a natural one to the association so common to-day, which is formed under the laws of one country for the sole purpose of acting in another. The earliest form of foreign corporation in this sense was no doubt an association of citizens of the incorporating State who intended to carry on business elsewhere. This sort of association seems to be more common in England than in this country; and naturally so, since much English capital is invested in foreign countries. Examples of this sort of corporation are the Calcutta Jute Mills and the Casena Sulphur Company, associations of English capitalists for the purpose of manufacturing in India and of mining in Italy.10 Another sort of association is that of capitalists from several States who wish to form a corporation with large general powers, able to do business in many parts of the Union. Such an association is the National Waterworks Company," the United States Steel Company, the Standard Oil Company, and such great companies. In this case some State must be chosen as the State to issue a charter; and the associates would be likely to be influenced, in choosing the State, by the favorable nature of the charter that could be obtained from a 10 Casena Sulphur Co. v. Nicholson, 1 Ex. D. 428. |