held that the city of Boston owned the Mount Hope Cemetery in its private or proprietary character, as a private corporation might own it, and as such it was protected by the Constitution against a transfer without compensation.1

It has been stated in the chapter on Constitutional Law that Kirby's Reports of Connecticut Cases published in 1789 was the first volume of law reports published in First cases.

the United States. That volume contains four

cases in which corporations were parties. The first of the four was a case brought by a private corporation and was decided in 1786.2 The first of the cases in which a public corporation was a party was that of Church v. The Inhabitants of the Town of Norwich. The action was brought to recover back money paid to the use of the town, and it was likewise decided in 1786. The next case was in 1787, being an action brought by the Selectmen of the Town of Stonington to recover on an official bond. The last case, also in 1787, was an action against the County of Litchfield for an escape from a county gaol.5 But Root's Reports, although published after Kirby's, contain the earliest Connecticut cases. The first volume of Root's Reports contains one private corporation case. In that case it was decided that the deacons of a church constituted a legal corporation capable of taking by succession. That was in 1773. Two years earlier the court had up the question whether lands left for a highway by the proprietors in the original laying out of their lots and which were not wanted for the use of a highway belonged to the proprietors or to the town, and it was held that they belonged to the town. The town, however, was not a party to the action. The first action in which a public corporation was a party in Connecticut, which appears in the published

509.

1 Proprietors of Mount Hope Cemetery v. Boston, 158 Massachusetts Reports,

2 The Ecclesiastical Society of South Farms in Litchfield v. Beckwith, Kirby's

reports, was that of the Town of Waterbury v. Hurlburt,1 decided in 1773. The question was whether an action at law would lie against a son for the support of a parent. While the first Report was published in Connecticut, the earli. est American cases are to be found in Harris & McHenry's Maryland Reports. In the Maryland Reports, beginning in 1658, only two cases will be found prior to 1800, in which corporations were parties. One of these was Negro Mary v. The Vestry of William and Mary's Parish in Charles County,2 decided in 1796, in which the question was whether the plaintiff was entitled to her freedom. The other was an action brought by a private corporation, which was decided in 1799. The earliest reported cases in Massachusetts are to be found in Quincy's Reports. The volume contains but two cases of interest in this connection. In the first case, decided in 1762, it was held that Judges and jurors are not disqualified by their interest as inhabitants of the province from sitting in a civil action brought by the province to recover money due to it.3 In the second case, decided in 1763, it was decided that the proprietors of common and undivided lands were incompetent witnesses in a suit to which the corporation was a party. In 1792 a statute was passed in Massachusetts making the members of any town, district, precinct, parish, or other religious incorporated society competent to testify in actions to which the corporation was a party. Subsequently the above list was enlarged by adding to it "counties, school districts, and mutual insurance companies.'

Throughout the nineteenth century the cases in which municipal and public corporations were parties steadily and rapidly increased in all our courts. In the last volume of the Reports of the Supreme Court of the United States, for instance, there were twelve of them, besides eleven brought by or against the United States, out of a total of eighty-six.

1 1 Root's Reports, 60.

23 Harris & McHenry's Reports, 501.

3 Province of Massachusetts Bay v. Paxton, Quincy's Reports, 548. • Wrentham Proprietors v. Metcalf, Quincy's Reports, 36.

6 Vol. 180.

X

PRIVATE CORPORATIONS

1701-1901

BY SIMEON E. BALDWIN, M.A. LL.D.

THE law of corporations was the law of their being for the four original New England colonies. Of whatever else they might be ignorant, every man, woman, and child

Colonial

must know something of that. It governed all period. the relations of life. This was true, whether the government to which they were subject was set up under a charter from the crown or those who held a royal patent,1 or — as in New Haven - was a theocratic republic, owing its authority to the consent of the inhabitants. The one rested on the law of private corporations de jure: the other on that of public corporations de facto.

On October 25, 1639, the first General Court of the plantation of New Haven was organized, and on October 26, an Indian was arrested under its authority on a charge of murder. Three days later he was tried and sentenced, and the day following his head was cut off "and pittched upon a pole in the markett-place. We may be sure that this was not done by such men as Eaton and Davenport, nor the steps taken that put them in a position in which they might be called upon to take such action, without careful study, first, of the powers rightfully belonging to de facto public corporations.

1 See Chapter II., pp. 11, 17-19, 21, 24.

2 New Haven Col. Rec., I. 24.

1

For all the charter governments, the seventeenth century, as has been suggested in Chapter II., was one long school of study for their leaders into the rights of private corporations as founders of colonies, and then into those of the colonies as they grew into public corporations - or provinces hardly distinguishable from public corporations 1 — and received, as such, new authority from the Crown. Occasions arose upon which they sought counsel as to points of this kind from the leaders of the English bar, and the opinions thus obtained were eagerly read and everywhere discussed, not only by those in authority, but by their constituents in every local community.2

That the colonists thought and studied on these problems for themselves is evidenced by a letter from the General Court of Massachusetts to the counsel whom they had retained to defend against quo warranto proceedings brought for a forfeiture of the colony charter in 1683. He had been authorized to engage professional assistance, and "we question not," they wrote, "but the counsel which you retain will consult my Lord Coke his Fourth Part, about the Isle of Man, and of Guernsey, Jersey, and Gascoigne, while in the possession of the Kings of England: where it is concluded by the Judges, that these, being extra regnum, cannot be adjudged at the King's Bench, nor can appeal lie from them, &c." 3

Governmen

The question met and decided for itself by the Colony of New Haven at its outset was answered in the same way by the charter governments with which she soon became confederated, and into one of which she was finally absorbed. They claimed and exer

tal powers of the colonies.

1 See Report of the American Historical Association for 1895, 619, 626, and Pennsylvania Statutes at Large, V. 645, 735.

2 Such was the opinion of Ward, Somers, and Treby, given at the request of Connecticut in 1690, as to the effect of her involuntary submission to Sir Edmund Andros, upon her charter rights. Trumbull's Hist. of Conn., I. 407. See also that from Sir John Holt (afterwards Chief Justice) and seven others in New Jersey Archives, 1st series, I. 272.

3 Palfrey, Hist. of New England, III. 389.

cised from the first the power of life and death as respects all crimes committed within their territorial limits; but to do so, it was necessary to found it on the general grant to them of legislative authority. The view repeatedly urged upon the home government in opposition to this contention, that the charters contemplated only the making of such by-laws as a trading corporation might need for its better regulation,1 was certainly plausible, and their use as the foundation of capital sentences was disputed before the Queen in Council in an attack upon the Connecticut charter as late as 1705.2

The Englishman's right to local self-government, wherever he was, was the question fundamentally at issue, and as to that, the general sentiment was the same throughout all the colonies. Ultimately it led to a gradual undermining of the authority of the provincial Governors and their Councils, which prepared the way for American independence.

Even after that event, however, and when the political sovereignty of the United States and of each of them had been fully acknowledged by Great Britain, the English courts continued to insist that the colonies had never occupied the position of public governments. Maryland, in the first half of the eighteenth century, had put out circulating bills, as currency, on the security of shipments of tobacco, the proceeds of which were invested in stock of the Bank of England held by trustees appointed for the purpose. The title of the State of Maryland to this stock came in question before the English Court of Chancery some years after the Treaty of Peace. If the doctrine of public law that a change in the political government of a people does not affect its proprietary rights or obligations was to apply, the equitable interest in the shares belonged to the State. It was held by Lord Loughborough that it did not apply. "The old government of Maryland," he said, "a government of a singular species, existing by Letters Patent, in some degree similar to a corporation, possessing rights in England, must sue in 1 See Palfrey's Hist. of New England, I. 307.

2 Hinman, Letters from the English Kings, etc., 325, 328.