time of the Conqueror, Bracton's ideas (c. 1263) were not clear, and were taken almost wholly from the Roman law. He says: "Things belong to corporate bodies, and not to individuals, which are in cities, such as theaters, stadia, etc., such as lands and serfs, which are said to belong to cities because they so belong to all the citizens as not to belong to any one person by himself." F. 8, 1 Twiss's Translation 59. This is substantially taken from Justinian's Institutes, Bk. 2, T. 1, § 6. In f. 1716, he speaks of the “body corporate of the realm." [Universitas regni.] 3 Twiss 93. In f. 180b. (3 Twiss 151), he adds race grounds, walls and gates of cities, to corporate property. From what he says, f. 102 (2 Twiss 133), f. 228b, (3 Twiss 535), it seems "all may complain or one (only) under the name of the corporation (Universitatis). On f. 374 (5 Twiss, pp. 447-449), he says: "If an abbot, or prior, or other collegiate men claim land, etc., in the name of their church upon the seysine of their predecessors,

the declara

tion should not be from abbot to abbot, or from prior to prior, nor should there be mention of the intermediate abbots or priors, because in colleges and in chapters the same corporation always remains, although they all die successively and others are substituted in their place, as may be said of flocks of sheep, where there is always the same flock, although all the sheep or heads successively depart, nor does any individual of them succeed to another by right of succession, in such manner that the right descends by inheritance from one to another, because the right always pertains to the church, and remains with the church, according to what may be seen in the charters of feoffment of religious orders, and accordingly if the abbot or the prior, the monks or the canons successively die, the house remains to eternity." This comes very near to the modern idea of the existence of the corporation separate and distinct from its members.

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By 1311 a borough is called a "corps." Y. B., 4 Ed. II 103, Gross's Gild Merchant I, 94, note. But "It was really about the reign of Edward III (1327-1377) that the idea of the lay corporation, the lay persona ficta as now understood, was painfully elaborated. The doctrine that there could not be a writ of capias against a "commonalty" was definitely expressed at least as early as 22 Edward III (1349), 22 Ass. 67, and the practice had been in accordance with this doctrine considerably earlier. There is a very curious case at the end of this reign, which shows not only that the lawyers had come to the notion of a "body," afterwards called a "body politic," but also by what road they traveled. They had often been troubled by the question whether something in dispute was appendant or appurtenant to something else, or was a thing by itself and independent, which they called a gross (un gross). It was, for instance, a common subject of argument whether an advowson was a gross (according to modern phraseology "in gross"), or appendant. By a curious psychological process they realized that what we now call a corporation was "a gross,' or something which had an existence per se; and this something they called alternatively "un corps." Thus they came to the idea of an individuality composed of the members of a corporation, or, as we might now say, to the idea of a persona ficta. At the same time it was held that the commonalty of a guild which had not been affirmed by a royal charter could not be adjudged to be a body (un corps), capable of purchasing an estate of freehold." See 49 Li. Ass. 8. Introduction by L. O. Pike to Y. B., 16 Ed. III, part 1, p. xlvi. Many points turning on or recognizing the artificial personality of a corporation were determined during this reign. In 1335 it was held the head of the corporation could be sued by the corporation, as the dean by the chapter of the same church. Y. B., 9 Ed. III 45b. In 1341 it was held that if a corporation disposes of all its property the corporation yet remains. 15 Ass. 10. In 1349, as indicated above, it was said: "The corporation is invisible, incorporeal; it can not be assaulted, or be beaten or imprisoned; trespass does not lie against it, for capias nor exigent lies not against a commonalty." 22 Ass. 100, pl. 67. In 1356, "Nor can they commit treason, or be outlawed, or excommunicated, for they have no souls, nor can they appear in person, but by attorney." In 1372, however, it was held "a corporation can commit a trespass." 45 Ed. III 2.

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we

In 1375, the taking by the servant of a corporation is a taking by the corporation. 48 Ed. III 17. In 1376, none but the king can make a corporation. 49 Ed. III 4. In 1377, one corporation can be united to another (consolidation?), so as to succeed to the rights of the latter. 50 Ed. III 27. Pollock and Maitland (History of English Law, vol. 1, p. 473) place the birth of the corporate idea a little later than indicated above. They say: "If for a moment we take our stand in Edward IV's reign (1461-1483) can say that the idea of a corporation is already in the minds of our common lawyers; it may trouble them, this is shown by their frequent discussions about its nature, but still it is there. First we notice that they already have a term for it, namely, 'corporacion' for which 'corps corporat,' and 'corps politik,' are equivalents." Kent says (2 Comm., § 270, note e), "the terms corporation and body corporate first appeared in the reign of Henry IV (1399-1413), in any public document." In 1429, it was unsuccessfully contended that when a member and the corporation were sued together, the member was twice sued. Y. B., 8 Hen. VI, f. 1. In 1437, "if a man recovers a debt or damages against a commonalty he shall have execution only against the goods they have in common." Y. B., 16 Hen. VI, Fitz. Abr., Execution pl. 128. In 1441, "a release by all the members of a corporation is not the release of the corporation."Y. B., 19 Hen. VI 64. So too "if all the members of a corporation appear in person to answer a suit against the corporation it is not sufficient." Y. B. 19 Hen. VI 80. In 1442, "if all the members, as abbots and monks, die, the corporation is dissolved." Y. B., 20 Hen. VI 7, 8. In 1454, "when a city or village is incorporated as bailiff and commonalty of they are by this name a person corporate, an entire body." Y. B., 32 Hen. VI 9. In 1461, "a corporation aggregate of sev eral is invisible, immortal and rests only in intendment and consideration of law, and therefore dean and chapter can not have predecessor nor successor." Y. B., 39 Hen. VI 136, 14. In 1470, generally they must act by deed only. Y. B., 9 Ed. IV 59, but in 1479, they can appoint ordinary servants and agents without a seal. Y. B., 18 Ed. IV 8.

In 1481 corporate bodies are contrasted with unincorporated bodies. Y. B., 20 Ed. IV 2. So, too, in this year or the next, a juror was challenged because he was a brother to one of the members of the corporation; it was answered that the juror was "a stranger to the chapter, for it is a body of such nature that it can have neither brother nor cousin," but conceded that it would have been otherwise if the juror had been brother to the Dean, Y. B., 21 Ed. IV, f. 28, 1 Pollock and Maitland 474. In this year, too, a corporation is called a mere name. Y. B., 21 Ed. IV 13. Perhaps the most interesting case of the time is the one of this year summarized by Pollock and Maitland thus: "Abbot, of Hulme, sued mayor, sheriff and commonalty of Norwich, on a bond, and they pleaded that when the bond was made the then abbot had got the then mayor in prison and extorted the bond by duress. The lawyers admitted that the corporation itself can not be in prison or suffer duress, and that it would be no defense to urge that when the bond was made some few of the citizens of Norwich were in prison. Counsel said: 'Every body politic is made up of natural men. And as regards what has been said touching its inseverability, I do not admit that, for they allowed that mayor, sheriffs and commonalty make up a single body; here, then, are members, namely the mavor is one member the sheriff another member * the third is the commonalty. In this case there is an alleged imprisonment of one of the distinct members named in the title of the corporation, to wit, the mayor, who is the head and (as in the body natural) the principal member and if one member of the body natural be restrained or beaten, that is a restraint or battery of the whole body.'" Vol. 1, p. 475. Y. B., 21 Ed. IV, f. 7, 12, 27, 67. In 1483, it was held that "if the king makes a general corporation by a certain name, all the incidental powers, as to sue, be sued, purchase and hold land and other property, contract, have a seal, make by-laws, etc., are included." Y. B., 22 Ed. IV, cited in 10 Coke's Rep. 30.

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Littleton, in his Tenures, written about 1481, does not have much to say of corporations, but enough to make it certain that their nature and presence

were pretty well known, and the distinctions between sole and aggregate pretty well recognized. He speaks particularly of "prelates, abbots, priors, deans, or of the parson of a church, or of other bodies politike.' Section 413. See, also, §§ 133 and 134. And his statements accord with the holdings such as: "Where a bond is made to the Dean of P. and his successors, and it is not said dean and chapter, and his successors, this is good to the executors, and void to the successors. Contra, if it had been to the dean and chapter and his successors; for he has two capacities, viz., "To him and his heirs, and another with the corporation." 20 Ed. IV 2 (1481). So, “If land be granted to a mayor and commonalty, saying to their successors, they have a fee-simple. 11 Hen. VII 12 (1496). În 1501, where a corporation has a head (as a mayor) he may command a thing in person; but a corporation aggregate, which has no head, must give their authority, under the seal of the corporation. Y. B., 16 Hen. VIII 2. In 1523, all acts of a corporation must be by their name of corporation, and by writing, otherwise it is not the corporate act. As do a tort make a feoffment, enter into an agreement; yet they may elect a dean, master or attorney, which are of record. Y. B., 14 Hen. VIII 2, 29. In 1542, corporations aggregate can not do fealty; for a body invisible can not be in person, nor can swear. 33 Hen. VIII, Br., Fealty pl. 15. "A body politick is not contained in the word person." Plowden, f. 177 (1550-1580). In 1585, a corporation consisting of confreres and sisters is dissolved by the death of all the sisters. In 1587, "A corporation is a body politick, consisting of material bodies, which, joined together, must have a name to do things that concern their corporation, or otherwise it is no corporation. Ch. B., in Mariot v. Mascall, And. 206 pl. 238, 29 Eliz. In the argument in this case it was said: "All the natural persons are not the corporation, but are persons of which the corporation consist, but not wholly; for the name is part also, without which the corporation can not be." And. 210. In 1596, it was contended that an annuity charged against a corporation was gone when the corporation was dissolved, for it is the person charged. 38 Eliz. Viner, Corp. (4, 3) 8. Rochester (Bishop's Case.

Coke's idea of a corporation was that of an artificial personality. "The corporation itself is only in abstracto, and rests only in intendment and consideration of law." Sutton's Hospital, 10 Rep. 1, on p. 32. (1613). "Persons capable of purchase are of two sorts, persons natural, created of God, and persons incorporate, or politique, created by the policy of man (and, therefore, they are called bodies politique)." 1 Institutes 2 a. (1628). "It is also called a corporation, or body incorporate, because the persons are made into a body, and are of a capacity to take and grant." Ib. 250 a. Lord Chief Justice Hale classed corporations among persons. The 22d section of Analysis of the Law (c. 1676) is entitled "Concerning persons or bodies politic, i. e., corporations. I have done with the jura personarum naturalium and I now come to persons politic, or corporations, that is, bodies created by operation of law."

5. In the modern law.-There can be no doubt as to the influence of the definitions of Blackstone upon our legal ideas, and there can be scarcely less doubt as to the influence of Hale's classification upon that of Blackstone. The latter says: "Persons are divided by the law into either natural or artificial. * Artificial are such as are created and devised by human laws for the purposes of society and government, which are called corporations or bodies politic." 1 Comm. *123 (A. D. 1765). On p. *467 he says "It has been found necessary, when it is for the advantage of the public to have any particular rights on foot and continued, to constitute artificial persons, who may maintain a perpetual succession and enjoy a kind of legal immortality. These artificial persons are called bodies politic, bodies corporate (corpora corporata), or corporations, of which there is a great variety subsisting, for the advancement of religion, of learning and of commerce." Hammond shows that parts of this 18th chapter, Book I (containing eighteen small pages), have been quoted, cited or criticised nearly 150 times in reports of cases in the United States.

Marshall's definition in the Dartmouth College Case, 4 Wheat. (U. S.), p.

518 (A. D. 1819), seems to have come from Coke and the Year Books. He says: "A corporation is an artificial being, invisible, intangible and existing only in contemplation of law. Being the mere creature of the law, it possesses only those properties which the charter of its creation confers upon it, either expressly, or as incidental to its very existence. These are such as are supposed best to effect the object for which it was created. Among the most important are immortality, and if the expression may be allowed, individuality; properties by which a perpetual succession of many persons are considered as the same and may act as a single individual." Although in this case Judge Story seemed to favor the view that a corporation was essentially a collection of individuals (see infra, p. 727), yet he summed up his definition thus: "It is, in short, an artificial person, existing in contemplation of law, and endowed with certain powers and franchises, which, though they must be exercised through the medium of its nat ral members, are yet considered as subsisting in the corporation as distinctly as if it were a real personage." 4 Wheat. (Ŭ. S.) 667. Justice Washington quotes Blackstone, and looks upon a corporation as a franchise, 4 Wheat. (Ü. S.) 657; (see infra, p. 723). The Louisiana civil code of 1824 defined a corporation as "an intellectual body, created by law, composed of individuals united under a common name and for certain purposes, considered a natural person.' Tit. 10, ch. 1, art. 418, 427. This is approved and substantially adopted by Angell and Ames Corporations, p. 1 (1831). Walker, American Law, § 90 (1837), says: "Persons are either natural or artificial," the latter consisting "of natural persons clothed by law with an artificial character and capacity." So, too, in 1839 (22 Wend. 70, Thomas v. Dakin, supra, p. 19), and 1841 (1 Hill (N. Y.) 620), corporations are defined to be persons. Grant on Corporations, p. *4 (1850), says: "The ideal being called a corporation we may thus define to be a continuous identity, endowed at its creation with capacity for endless duration; residing in the grantees of it and their successors, its acts being determined by the will of a majority of the existing body of its grantees or their successors at any given time ** having a name, and under such name a capacity for taking, holding and enjoying all kinds of property, a qualified right of disposing of its possessions, and also a capacity for taking, holding and enjoying but inalienably, liberties, franchises, exemptions and privileges, of suing and being sued." In 19 N. Y. 39 (1859), a corporation is treated as a person. Sir Nathaniel Lindley, in his Treatise on the Law of Partnerships, p. 66 (1860), says: "A corporation is a fictitious person, created by special authority, and endowed by that authority with a capacity to acquire rights and incur obligations, as a means to the end for the attainment of which the corporation is created. A corporation, it is true, consists of a number of individuals, but the rights and obligations of these individuals are not the rights and obligations of the body corporate exercisable by or enforcible against the individual members thereof, either jointly or separately, but only collectively as one fictitious whole."

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The California code of 1872 calls it "a creature of the law having certain powers and duties of a natural person." Section 283. This is repeated in the codes of South Dakota (18831, § 373; and Oklahoma, § 944. The Georgia code of 1882 says: "A corporation is an artificial person created by law for specific purposes." Section 1670. Lowell, Transfer of Stock, §§ 1, 2 (1884), says: “A corporation is an imaginary person, who, by a fiction of law, possesses certain rights, and is made subject to certain duties. The corporation is something distinct from its members. Its life is independent of theirs. Its will may, at times, be different from that of any member, or of any given proportion of its members, and it may be bound by conduct which binds no one of its members as an individual. Of course, there are, in reality, no rights or duties but those of natural persons; but the rights and duties of natural persons who deal with a corporation arise from a fiction, and their nature and extent are determined by that fiction. A person, therefore, who confounds a corporation with its stockholders, who says that they are the corporation, or that it consists of its members, not only misstates the legal view of the matter, but is in danger of falling into endless confusion and error. A

corporation is distinct from its members in the same sense that a state is distinct from its citizens."

Austin Abbott, in the Century Dictionary (1889) defines a corporation as “An artificial person, created by law, or under authority of law, from a group or succession of natural persons, and having a continuous existence irrespective of that of its members, and powers and liabilities different from those of its members." Cook, Stock and Stockholders (3d ed., 1894), § 1, says: "A corporation is an artificial person like the state. It is a distinct existencean existence separate from that of its stockholders and directors." This is repeated in the 4th ed., 1898. Reese, The True Doctrine of Ultra Vires, 1897, says, $2: "It will be assumed in the examination of the doctrine to be hereafter discussed, that a corporation both under the common law and as now organized and created under our state laws, is a legal entity, separate and distinct from the members who compose it; that in the corporation, the creature of the law, is vested all the property and powers of the company; that it can only be affected by such acts and agreements as are done or executed in its belialf by the corporate agencies, acting within the legitimate scope of its chartered powers; and that no acts or contracts by the officers or agents of the company beyond the scope of the powers as prescribed and designated in the charter or articles of association, can be ascribed to the corporation, though done and concurred in by each and all of the stockholders." Elliott Corporations, 1899. § 2, gives and approves the definitions of Abbott, supra, and Kyd, infra, p. 109.

The nature of the corporate personality has been the subject of much speculation. At present, in the United States, the theory is generally held that the personality is artificial, or fictitious, has no existence in fact. On the other hand, in Germany, the theory is the reverse of this-that the personality of a corporation is organic-a real person, with a will and capacityto act, and that this is different from, but just as real, as the individual personality of each of its members. Recently Dr. Freund, of Chicago University, has put forth a view that seems to be between these-that the personality is a representative one, limited to a special purpose, but within that purpose exhibiting a real capacity of acting and willing that has substantially all the legal elements of responsibility that pertain to an individual. Like the state, it is a real legal existence, that expresses the will of its members through representatives selected in a definite way, and is as near a reality as the state is.

ARTICLE III. THE CORPORATION AS A COLLECTION OF INDIVIDUALS.1 Sec. 16. The corporation is considered as a collection of individuals,

(1) In the management of corporate affairs:2

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"Where an act is to be done by a corporation, all of the members ought to be assembled together to consent, but this can not be separately and apart by them at several times, for then it is a factum singulorum. Case of the Dean and Chapter of Fernes, 5 Jac. B. R. (1608)." Viner's Abr. Corporations (G. 3), 6. "In a trial where there are twelve canons besides the dean, which in all make thirteen of the corporation, it was held: Ist. That prima facie, in all acts done by the corporation, the major number must bind the lesser, or else differences could never be determined. 2d. That acts done by the corporation ought to be done by the consent of the major number, 1 See note at the end of this article.

The management of corporations is treated in ch. 10, infra, p. 833, et seq.