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powers tends towards centralization, yet is the reverse of this the case. Each and every movement above described, tends towards the development of the various powers of the earth and man — towards the creation of local centres — towards increasing the rapidity of the societary circulation—towards creating a counterbalance to the attractions of the political or trading capital — and, therefore, towards concentration. The more perfect the balance of the centripetal and centrifugal forces, the greater must be the steadiness of the societary movement—the larger the proportion borne by fixed to circulating capital — the more perfect the individuality of both people and State — and the greater the tendency towards the perfect establishment of human freedom. Are there, then, no proper limits to the sphere of action of those who guide and direct the commerce of the State 2 There are — their whole duty being found in the removal of the obstacles to perfect combination. Going beyond that point, government leaves its proper sphere—doing then mischief in place of good. z
§ 3. For accomplishing the objects above described, and, a thousand others, men associate themselves together — sometimes as simple joint-stock companies, and at others as public or private corporations; and as, in all of these, the co-ordinating power is required to take a part, it is needed that we here look to its action upon them, as well as at their action upon the people among whom they are found.
Joint-stock companies do not, necessarily, limit the liability of the partners in them — companies having frequently been incorporated in England, for the simple purpose of enabling them to sue and be sued, as a body, and without limiting the responsibility of the shareholders, each and all, for payment of the debts. Such, too, has been the case in Massachusetts, where, for a time, every partner was liable for all the debts of her various manufacturing companies—a state of things that was followed by ruin to almost all concerned.
An act of incorporation so organizes a company as to give it permanent existence, and a legal identity, under all the changes of membership that may occur—thus effecting for bodies politic precisely what the laws of life accomplish for the constantlychanging atoms of the natural body. Never, even for an instant,
intrinsically the same, these latter are so always, in their relations with the exterior world. In the creation of a social body corporate, as one of the means of removing the obstacles to combination, the co-ordinating power of the society at large, does but copy the arrangements adopted by nature herself. In the forms of incorporation most usual in both Europe and America, limitation of liability to loss, beyond the amount invested, is secured—thus removing another of the obstacles to association. Water being needed, or roads being required, thousands may be found who would be willing to contribute according to their means, to the accomplishment of the great work, when not even a single one would be willing to assume the whole risk, while dividing with his neighbors the benefits there resulting, in the increase of comfort to themselves, or in the growth of value in their land. Here again we find the societary action in perfect accordance with the general laws instituted for man's government—the scheme of creation involving no such absurdity as that of holding one man liable for the errors of another. Perfectly natural, therefore, as is this form of association, equally so is it, that society at large should be indebted to it for all those institutions which tend most towards increasing the power of combination in the people among whom they are found — as in the case of canals, roads, banks, telegraphs, insurance offices, steamers, and many others that might be named — including literary and philosophical associations, charities, and churches.—Of all concerned in the organization of such institutions, few expect to derive from them much advantage except in common with those around them, for which reason there is strict justice in permitting them to limit the amount of risk to be incurred. Acts of incorporation have frequently carried with them prohibitions of association for similar purposes among any but the parties named—monopolies being thus created. Here, the coordinating power steps beyond its proper sphere of action—creating obstacles to association, when its real duties are limited to their removal. Many such had been created in England, prior to the statutes of 21 James I., by which they were nearly all abolished—the sole exceptions being those of patents, granted for the encouragement of publishers of useful inventions and improve. ments. That, however, was the day of small monopolics only— those of the East India Company, the South Sea Company, the Bank of England, and many others, dating their existence from a later period. “It was chiefly,” says Chancellor Kent, “for the purpose of clothing bodies of men in succession with the qualities and capacities of one single, artificial, and fictitious being, that corporations were originally invented, and for the same convenient purposes they have been brought largely into use.” + Blackstone quotes Plutarch for the statement, that they were first introduced by Numa, who erected each separate manual trade and profession, in Rome, into a society, for the purpose of subdividing the rival Roman and Sabine factions, by which the city was being torn to pieces, into smaller ones, each of which would help to neutralize the others. Two centuries later, Solon permitted the Athenians to form themselves at pleasure into companies, provided they did nothing contrary to the public law f – those periods in both Greece and Rome in which real freedom most existed, being precisely those in which the co-ordinating power is shown to have been most applied to the promotion of combination. That freedom having passed away, Caesar found in corporations only nurseries of faction and disorder—a state of things that still endured in the time of Trajan, who is recorded to have refused, for that reason, to grant incorporation to a simple fire association.fCorporations for the advancement of learning were entirely unknown to the ancients; nor was it until the 13th century that colleges and universities began to confer degrees. § The creation of civil and municipal bodies, for political and commercial purposes, finds a place in the early history of modern Europe, and yet earlier among the Romans—their empire having been, in no small degree, composed of corporations. “The Latin, Samnite, and Etruscan nations, were mere confederations of cities—there having been,” says M. Guizot, “no country places, no villages. The proprietors of land, and of country estates,” as he further says, “dwelt in cities—leaving them occasionally to visit their rural property, where they usually kept a number of slaves; but that which we call the country, the scattered population, sometimes in lone houses, and sometimes in hamlets and villages, and which every where dot our land with agricultural dwellings, was altogether unknown in ancient Italy.” Outside of Italy it was the same, “the history of the conquest of the world by Rome, being but the history of the conquest and foundation of a vast number of cities.” “ Although conquered, their privileges were, during a long period, respected—limitation of liability on the part of their people towards the officers, and of the latter towards the central power, having been fully recognized. With growing centralization, however, those limitations wholly disappeared — taxation then recognizing no limits but the entire inability to pay, and the municipal officers being responsible for the amounts assessed, whether collected or not.f Leaving their posts without permission, their entire property became confiscated to the State—the performance of their municipal obligations being a duty to which all were liable who possessed property to the extent of twenty-five acres, and from which none could free themselves by any voluntary act. Under such circumstances it was, that the co-ordinating power of the cities almost entirely disappeared—the middle class passing away, and leaving behind it little but officers of the central government on one hand, and slaves on the other. The Roman Empire having disappeared, the ancient institutions slowly revive again — cities, towns, and fraternities re-appearing on the stage, invested with corporate powers and privileges, and with extensive civil and criminal jurisdiction. Presenting barriers to feudal tyranny, these immunities were sought for, not only from a thirst for liberty, but also from a desire for the creation of local monopolies—the one tending towards the promotion of the habit of association, and the other towards its limitation. Affording protection to those engaged in the mechanic arts, they formed a counterpoise to the exorbitant powers, and otherwise unchecked rapacity, of the barons. Facilitating commerce, and promoting the development of individuality, they gave value to both land and labor, while adding largely to the strength of the State, of which they were a part.* By this means it was, that order and security, industry, agriculture, and the arts, revived in France and Spain, Germany and Italy, the Netherlands and England— the re-establishment of regular government, after the centuries of disorder which followed the invasion of barbarian hordes, having been largely due to the institution of civil corporations, with their extended privileges. American civil polity is distinguished by the prevalence and diversity of civil corporations—political power being, by this means, distributed, decentralized, and co-ordinated. Under it, counties, towns, and cities, are held to be quasi corporations, invested with subordinate legislative powers, to be exercised for local purposes connected with the general good — their exercise, however, being still subjected to the general control of the State. Among the first acts of the Connecticut General Assembly, in 1639, was one for incorporating the small towns of the colony— thereby securing to each and all the right of selecting their own officers and magistrates — of holding local courts — of providing for the registry of deeds and mortgages, and for the maintenance of schools and churches. Each little community being thus constituted, so far as regarded matters of local interest, as little independent republics, the American town has been justly described by M. de Tocqueville, as forming the vital principle of American liberty. Here, however, we have but the first element of the system, the application of the corporate principle having since
* Histoire de la Civilization, tom. i., Lecture II. + Among “the functions and duties of the curiales thus forcibly confined within their curia, were as follow:— “1. To administer the affairs of the municipium, its revenue and its expenditure, either deliberatively as a private member of the curia, or executively as a municipal magistrate. In this double situation, the curiales were not only responsible for their own individual conduct, but they were called upon to provide for the wants of the town out of their own means, if the civic revenue was insufficient. “2. To collect the public taxes. Here also they were themselves responsible if they failed to levy the full amount imposed. Any lands subject to the land-tax, which were abandoned by their possessors, reverted to the curia, who were bound to pay the tax in respect of them, until some one was found who was willing to take the land and its liabilities upon himself. If no such person appeared, the tax continued to be made up amongst the other proprietors."—Guizot : IIistoire de la Civilization, tom. ii., Lecture II.
* See ante, vol. i., p. 127, for an account of the cities of the Albigenses, in the 11th and 12th centuries. The rights and liberties of London were secured by a provision of Magna Charta, in the 13th century. — M. Raynouard, in his Histoire du Droit Municipal en France, says M. Guizot, has furnished “traces of a municipal system, in uninterrupted vigor, from the 8th to the 12th centuries.”