tions can be described in half the space required there. The leading divisions contemplated by law, as we have already seen, are as follows: 1. Persons are either natural or artificial. 2. They are either public or private. 3. They are either citizens or aliens. 4. They are either males or females. 5. They are either infants or adults. 6. They are either sane or insane. 7. They are either freemen or slaves, masters or servants, principals or agents. 8. Indians sustain relations different from any other persons. 9. The death of persons creates the relations of ancestors and heirs, devisors and devisees, and executors or administrators. Some of these relations have already been described in connection with the constitutional provisions relating to them. Thus we have said all that our limits will permit respecting public functionaries, aliens, slaves, and Indians. On these classes of persons, therefore, nothing further will be offered. The rest remain to be described, and will form the subject of this third part of our lectures.

I shall begin with corporations, to which this lecture will be devoted. The view I shall present must necessarily be brief; and for those details which do not fall within my limits, I refer to the authors above mentioned. The subject is one of growing importance; for corporations are annually multiplying to such a degree as even to excite alarm in some minds, lest individual freedom of action shall be swallowed up in the prevailing spirit of association. We have seen that corporations are called artificial persons, to distinguish them from persons in their natural capacity, or simply human beings. In other words, they consist of natural persons, clothed by law with an artificial character and capacity. When two or more persons desire to unite their means, for the purpose of carrying on some enterprise or business which neither might be able to accomplish by himself alone, there are but two legal ways of doing it conveniently. The persons in question must either be constituted a corporation, by means of a legislative act or charter, or they must enter into a partnership, by virtue of a contract. In either case, their relations will be determined, partly by the express provisions of the charter or contract, and partly by the implied conditions tacitly annexed by law to each of these relations. Thus, while corporations and partnerships both agree in being relations voluntarily assumed by the members, and also in having for their object the association of several individuals for the purpose of co-operation in business; yet they differ so materially in their mode of creation, and in many other respects, that they require a separate consideration. Accordingly, partnerships will be reserved for the next lecture.

A corporation may be defined to be a body of persons connected together by law, either contemporaneously or in succession, and endowed with the capacity of acting for various purposes as a single person. (a) The law knows a corporation only by its corporate

(a) The supreme court of the United States has intimated that the definition of a corporation could no longer be confined to its old limits, and held that a joint-stock

name. (a) In this name all its acts are done, without a specification of its members; and this determines its continued identity, though all its members should be changed. We often hear a corporation spoken of as a body without a soul, as an invisible, intangible, and immortal being; as existing only in the contemplation of law; and the like. But such expressions are calculated to throw darkness rather than light over the actual nature of corporations. It is sufficient to conceive of them as consisting of natural persons, united together in an artificial character by the force of law, for the purpose of concentrating or perpetuating individual ability. They are purely creatures of the law; because, though the members may voluntarily form themselves into a society or association, the law only can erect them into a corporation. We are told, indeed, that corporations may exist by prescription. But the theory of prescription is simply this: From considerations of general expediency, the law presumes that what has long been suffered to exist must have had a rightful origin. If, therefore, persons have long used the name, and exercised the franchises of a corporation, the law presumes, without seeking other evidence, that they had original authority for so doing; or, in other words, that they were once duly constituted a corporation. In older countries, this theory of prescription may be very important; but, in this young country, it can be of little consequence. All our corporations, at least since the revolution, have actually derived their existence from a legislative act, which we call a charter, and which is to a corporation what a constitution is to a State, its organic or fundamental law. And we may reasonably presume that no future corporation will exist but in this way.

§ 91. Constitutional Power to create them. We have seen that the federal constitution confers no express power on Congress to create corporations. If this power exists, therefore, in the federal government, it is an incidental power; and as such it has been twice exercised by the incorporation of a national bank. (b) But with the States it is different. The creation of corporations by them is regarded as so essential an attribute of municipal sovereignty, that it requires no express constitutional provision. The power, not being prohibited, is therefore taken to be conferred. (c) In this enterprising and rapidly growing country, corporations are

company organized in England under an act of parliament was a corporation, though the act expressly provided that it should not be. Liverpool Ins. Co. v. Massachusetts, 10 Wall. 566.

(a) An injunction may be granted by analogy to the law of trade-marks to a corporation to restrain persons from adopting and using the same corporate name with that previously adopted regularly and in good faith by the plaintiff. Newby v. Oregon, &c. Co., Deady, 609; Holmes v. Holmes Man. Co. 37 Conn. 278.

(b) It was proposed in the federal convention to confer on Congress the express power to create corporations. Mad. Pap. 1354, 1576. That the power exists as an incidental power, see McCulloch e. Maryland, 4 Wheat. 316; Osborn v. Bank U. S. 9 Wheat. 738; Angell & Ames on Corporations, ch. ii. § 4.

(c) But this power is guarded by many restrictions. Thus, in Ohio, "no special privileges or immunities shall ever be granted that may not be altered, revoked, or repealed."

multiplying so rapidly that a large portion of our legislative business consists in granting and renewing charters. Many of the most important branches of trade and manufacture, nearly all banking and insurance operations, and many of our internal improvements, are undertaken and carried on by incorporated companies. Yet, although so much of good is thus effected, and without any very palpable evil, it is not uncommon to hear corporations denounced as monopolies, created for the benefit of the few to the prejudice of the many, and hostile to the great republican principle of equality. But corporations are not necessarily monopolies, in the odious sense of that term. A monopoly, as the name imports, is a special privilege conferred on one or more persons, to the absolute exclusion of all others. In this sense, it is deservedly odious, because it is essentially anti-republican. But our corporations are not, in this sense monopolies. Although charters frequently and confessedly enable the members of corporations to enjoy capacities and realize advantages which they would. not enjoy and realize as private individuals, and thus have something of the appearance of creating monopolies; yet so long as no exclusive privileges are in fact conferred upon any particular corporation, and no class of persons are prohibited from membership, they can with no propriety be said to create monopolies. Our banks are the nearest approach to monopolies, because individuals are expressly prohibited from banking privileges. Yet even our banks are not in fact monopolies, because no individuals are excluded from becoming stockholders, if they have the will and the means. And this objection to corporations being without foundation, there is this strong argument in their favor. Under a republican government like ours, where property is so beneficently distributed that very large fortunes are seldom accumulated, it is manifest that great enterprises, requiring large means, would seldom be undertaken by single individuals. It is only by the creation of corporations, enabling many to unite their means and act as one, that such enterprises are now achieved. It may be safely affirmed, that comparatively few of the wonderful improvements and developments in our country would have been made, if our legislatures had been divested of the power to create corporations, which they have so freely exercised. In this view, therefore, corporations should be the favorites of republicanism; since they enable its friends to meet the only plausible argument that can be urged to sustain that unequal distribution of property which prevails in aristocratic governments. No doubt the power to create corporations may be abused. But, when exercised judiciously, it certainly produces most salutary effects. (a)

(a) Since this paragraph was written, great changes have taken place in regard to corporations, and all the recent constitutions place them under restrictions more or less severe. The new constitution of Ohio, for example, prohibits the legislature from passing" any special act conferring corporate powers." Corporations may be formed under general laws, subject, at any time, to be altered or repealed. The limit of individual liability must be at least double the amount of stock. The liability to taxation

§ 92. Their various Kinds. (a) Corporations are divided and subdivided as follows: First, into sole and aggregate. A sole corporation consists of a single person and his successors, one after another, no two members existing contemporaneously. The member for the time being is thus endowed with a corporate capacity for the mere sake of uninterrupted succession. But such corporations being confined to the English church, require no comment here. Aggregate corporations are those which consist of more persons than one at the same time; and there is no necessary limit to the number who may be thus united. These are first subdivided into ecclesiastical and lay. Ecclesiastical corporations are likewise peculiar to the English and Romish churches. Our religious societies, even when incorporated by special charters, have no resemblance to them. But we have a general statute under which most of these societies are incorporated, so far as to hold their church property without any special charter. (b) Lay corporations are again subdivided into eleemosynary and civil. Eleemosynary or charitable corporations include only schools, colleges, hospitals, and the like; and have no peculiar attributes requiring comment here. Civil corporations, of course, include all other lay corporations. Lastly, corporations are divided into public and pri vate. Public corporations are those which are founded with public means, and for public purposes. Their criterion is, that no individual has any interest in their foundation, except as a member of the general body politic. To this class belong all municipal corporations, beginning with the United States, and descending down through States, counties, townships, school districts, and the like. These are, for the most part, denominated quasi corporations; since, with the exception of cities and boroughs, they require no special act of incorporation. They possess scarcely any other corporate properties than those of holding property and being parties to suits. But the distinguishing quality of public corporations is, that they are alterable at the pleasure of the public, because they involve no private interests distinct from those of the pub

must be the same as that of private persons. Municipal corporations can only be organized under general laws, with proper restrictions as to the powers of taxation, borrowing money, contracting debts, and loaning credit. And banking powers cannot be conferred without the sanction of a subsequent popular vote. It has been held in Ohio, under these constitutional provisions, that the prohibition of any special act, conferring corporate power, extends equally to municipal and private corporations, and that any act which either creates a corporation or confers upon a corporation already existing power to do an act which it could not previously have done, confers corporate powers, and, if special, is unconstitutional. State ex rel. Att'y-Gen. v. Cincinnati, 20 Ohio St. 18. Under the general laws regulating the formation of corporations, a defect or omission in a certificate of incorporation, such as the want of a seal, may be supplied by a court under the curative statute of March 10, 1859. Warner v. Callender, 20 Ohio St. 190. But if the certificate of a manufacturing company is acknowledged before a notary public instead of a justice of the peace, as the statute prescribes, it will be fatal on quo warranto. State ex rel. Att'y-Gen. v. Lee, 21 Ohio St. 662.

(a) 2 Kent, Com. 273; Angell & Ames, ch. i. §§ 1. 3.

(b) As to the powers of such corporations, see Miller v. Gable, 2 Denio, 492; The People v. Steele, 2 Barb. 397; Smith, 18 Vt. 511.

lic. (a) Private corporations are those which are founded on private means. Their object may be either private or public. But their criterion is a private foundation, whereby individuals have an interest distinct from that of the community. For this reason, private corporations are not alterable at the pleasure of the public. Their charters, as we have seen, are held to be contracts, to which the government is one party and the corporators the other; and they are within the protection of that great constitutional guaranty, which secures contracts from being impaired by subsequent legislation. (b) Unless, therefore, the charter of a pri

(a) Berlin v. Gorham, 34 N. H. 266. And they may be altered or abolished, although by the charter they are made the trustee of a charity. Montpelier v. East Montpelier, 29 Vt. 12. When, however, they have acquired property under the law, this cannot be taken away. See note on p. 206.

(b) Dartmouth College v. Woodward, 4 Wheat. 518; Charles River Bridge v. Warren Bridge, 11 Peters, 421; Providence Bank v. Billings, 4 Peters, 514. See Mechanics and Traders' Bank v. Debolt, 1 Ohio State, 591; Toledo Bank v. Bond, id. 622; Knoup v. Piqua Bank, id. 603; 16 How. 369, 416. Jefferson Branch Bank v. Skelly, 1 Black, 436; Franklin Branch Bank v. The State of Ohio, id. 474; Wilmington R. R. Co. v. Reid, 13 Wall. 264. The Supreme Court did not hold in Dartmouth College v. Woodward that a charter is a contract. A charter may contain a contract. The ruling was that when a contract is contained in a charter, such contract is made inviolable by the constitution of the United States. But, as was said by Chief Justice Waite in Stone v. Mississippi, 101 U. S. 814, "it is to be kept in mind that it is not the charter which is protected, but only any contract which the charter may contain." It is held that a provision in a charter that the officers of a corporation shall be elected in a particular way is not a contract, and is repealable. State v. Green, 9 Mo. App. 219. A right given in a charter to dispose of lottery tickets, held not a contract but a privilege or license revocable at pleasure. State v. Morris, 77 N. C. 512. A provision in a charter that the corporation, when sued, shall be served in a particular way, is not a contract and may be changed by legislation. Railroad Co. v. Hecht, 95 U. S. 168. If the contract is one which the legislature has not power to make, such contract does not bind the State. The legislature cannot grant away the police power of the State. Hence any agreement in a charter which restricts or curtails the police power of the State is invalid; though the corporation may have paid the State a valuable consideration therefor, the legislature may annul it. Boyd v. Alabama, 94 U. S. 645, affirming the Supreme Court of Alabama, Stone v. Mississippi, 101 U. S. 814, affirming the supreme court of Mississippi. Also, Beer Company v. Mass., 97 Mass. 25; Metropolitan Board v. Barrie, 34 N. Y. 657. The right to regulate charges in warehouses and grain elevators (Munn v. Illinois), and rates for freight and passengers on railways (Railroad Co. v. Iowa, 94 U. S. 155; Peik v. Railway Co., 94 U. S. 164), seems held to be a police power. The decision, however, in the first two cases was that the State, not being restricted by any agreement in the charter, had the power to regulate the charges; and in Peik v. Railway Co. the charter containing such a restriction was granted after the adoption of the State constitution, which provided that all charters should be repealed or amended at the pleasure of the legislature. But it is held in Illinois that, where a charter contains a clause that the company may charge such fares and rates as it may deem reasonable, the State may, in the exercise of its police power, ignore such clause and prescribe rates. Ruggles v. People, 91 Ill. 256; Illinois Central v. People, 95 Ill. 313. Chief Justice Waite, in Stone v. Mississippi, distinguishes between the power to tax and the police power of the State. He says that while taxation is, in general, necessary for the support of the government, it is not a part of the government itself; taxation is an incident to the exercise of the legitimate functions of government, but nothing more; and adds, "all that has been determined thus far is, that for a consideration it may, in the exercise of a reasonable discretion, and for the public good, surrender a part of its powers in this particular." Although a law of the legislature declares all charters thereafter granted subject to amendment or repeal, still if the charter of a charitable corporation, or an institution of learning, expressly suspends the statute as to it, and exempts its property from taxation, and the corporation is organized, it constitutes a contract. Home of the Friendless v. Rouse, 8 Wall. 431; Washington University v. Rouse, 8 Wall. 439. When a new power is given by an