JANUARY MEETING, 1894.
A Stated Meeting of the Society was held in the Hall of the American Academy of Arts and Sciences on Wednesday, 17 January, 1894, at three o’clock in the afternoon, the President in the chair.
The record of the last meeting was read and approved.
The Corresponding Secretary read the following letter from the Honorable Edward J. Phelps: —
Burlington, Vt., December 26, 1893.
Dear Sir, — I have had the honor to receive your letter of 20th inst. informing me that I have been elected an honorary member of The Colonial Society of Massachusetts.
I beg that you will express to the Society my acceptance, and my thanks for the distinguished compliment that has been thus conferred upon me, and which I very highly appreciate.
And I am, dear sir, very sincerely yours,
E. J. Phelps.
A. McF. Davis, Esq., Corresponding Secretary.
The following-named gentlemen were elected Resident Members: —
Mr. Henry Williams communicated the fact of the incorporation of the Quincy Historical Society, and stated that its membership consisted of ladies and gentlemen resident in that city and in the towns included within the limits of the old town of Braintree. He also furnished these particulars: —
quincy historical society.
The Quincy Historical Society was incorporated 15 November, 1893, for the “prosecution of historical and antiquarian work and research; the collection and preservation of books, manuscripts, pamphlets, and other articles of historical and antiquarian interest; the publication of periodicals, tracts, and pamphlets devoted to or treating of historical, antiquarian, or kindred subjects, and other historical and antiquarian objects and purposes.”
Mr. Andrew McFarland Davis read the following paper: —
CORPORATIONS IN THE DAYS OF THE COLONY.
I have selected as the title of this paper “Corporations in the days of the Colony,” my purpose being to bring before you Colonial legislation on the subject of corporations, including therewith all grants of privileges which were analogous to charters in their nature and effects. In the development of the subject I have adopted the following plan: —
First, the Virginia charters are contrasted with the charter of the Massachusetts Bay Company, in order to show the technical differences which suggested the possibility of the removal to Massachusetts of the government of the Company. Then follows a review of antecedent grants to adventurers, showing to what extent the grantees were authorized by their respective patents to exercise in the new settlements powers which were recognized to be prerogatives of the Crown. After which a brief examination is made of the knowledge of the law of Corporations which was accessible to a person reasonably familiar with the law of the land in 1630. The purpose of all this is to enable us to measure correctly the act of a Colonial legislature in creating a corporation. The treatment of the topic specially indicated by the title of the paper then follows, the subject being divided in its presentation into two parts: first, Municipal or Public Corporations; second, Private Corporations and grants analogous in their character.
As a natural sequence to this comes the lesson to be deduced from the history of the charter of Harvard College,150 if indeed the history of that grant does not comprise all that can be said on the subject under a strict interpretation of language.
I have thought it would add somewhat to the value of the paper to append a few words concerning corporations created under the Province charter.
charters of virginia and of massachusetts.
The first charter of Virginia delegated the supervisory management of the affairs of the Company to a Council “established here in England.” In the second charter it was provided that there should be “perpetually one Council here resident, according to the tenor of our former Letters Patent.” The third charter was a mere enlargement of the second. It provided for meetings of the Council “in such manner as is and hath been heretofore used and accustomed,” and it authorized the Council to proceed against certain classes of offenders and “either here to bind them over with good sureties” or to send them back to Virginia.
The Governor and Assistants of the Massachusetts Bay Company were empowered to make laws and ordinances for the good and welfare of the said Company, and for the government and ordering of the said lands and plantations and the people inhabiting and to inhabit the same, as to them from time to time should be thought meet, so as such laws and ordinances should not be contrary or repugnant to the laws and statutes of the realm of England.151 They were further authorized to organize a government, to create offices, and appoint the officials necessary for the control and government of the inhabitants, and were required to publish in writing the laws, statutes, ordinances, instructions, and directions of the Company. The chief commanders, captains, governors, and other officers and ministers to be employed in such government, or on the way by sea thither, had power to rule according to these laws.152
The Company through which William Bradford and his associates obtained the patent for Plymouth Colony, was by its very title limited to the town of Plymouth in the county of Devon, in the exercise of its powers of managing the affairs of the Corporation.153
The little band of Puritans who sought to avail themselves of the opportunity for the establishment of a separate government in Massachusetts, were quick to take advantage of the omission in the Massachusetts charter of words which directly required the holding in England of meetings of the Governor and Assistants. The duplicate form of government outlined in the charter was abandoned, and with the instrument itself in possession, the organization of the Company became the government of the Colony. For laying the foundation of the forms of government here and for the passage of laws regulating the conduct of the inhabitants of the Colony and the development of their material interests, full power was given by the charter except that such laws could not by the terms of that instrument be repugnant to the laws and statutes of England. Included within this phrase were several powers which were known as prerogatives of the king. It is safe to say that in this latter class, men like Winthrop, who had some knowledge of law, would have placed the granting of a charter which specifically created a corporation.
precedents in antecedent grants to adventurers.
In the decision of questions of this kind, since precedents would naturally have great weight, it may not be amiss to take a survey of the powers which had been conferred upon other adventurers, whether individual or associated in companies.
The “towns, castles, or islands” to be “found out and subdued” by Cabot and his associates in 1496 were by the terms of the grant from Henry VII., to be held by them “as our vassals, governors, lieutenants, and deputies,” “the jurisdiction thereof” “remaining to us.”154 In 1502 Hugh Eliot, Thomas Ashurst, John Gunsalus, and Francis Farnandus were licensed as discoverers. In the Charter which was issued to them, a previous grant, made in 1500 to Richard Ward and others, was annulled. Eliot and his co-adventurers were empowered155 to make laws. In 1578 the countries to be discovered by Sir Humphrey Gilbert were granted by Elizabeth to him “with all commodities, jurisdictions, and royalties both by sea and land,” and he and his heirs and assigns had power “to correct, punish, pardon, govern, and rule by their and every or any of their good discretions and policies, as well in causes capital or criminal, as civil, both marine and other.”156 In 1584 Elizabeth granted to Sir Walter Raleigh the lands which he should discover, “with all prerogatives, commodities, jurisdiction, royalties, privileges, franchises, and pre-eminences, thereto or thereabouts, both by sea and land, and as we or any of our noble progenitors have heretofore granted to any person or persons, bodies politic or corporate.” Power to govern was also given in this patent.157
Under this grant Sir Walter apparently felt at liberty to create a corporation, for in an assignment made by him in 1589 to divers gentlemen and merchants in London he states that it is his purpose that his assignees shall “be made free of the Corporation, Company and Society lately made by the said Sir Walter Raleigh in the City of Raleigh, intended to be erected in Asamacomock, alias Wingandacoia, alias Virginia;” and again he alludes in the same instrument to “the Corporation heretofore made by him the said Sir Walter Raleigh, consisting of the Governor and twelve Assistants, etc.”158
In 1606 James I. issued the charter known as the First Charter of Virginia to the First and Second Colonies of Virginia, which were afterwards known under later charters as the Colonies of Virginia and Plymouth. The Superior Council of these two Colonies was to be appointed by the Crown, and established “here in England,” while each of the Colonies was to be governed by a separate Council under laws, ordinances, and instructions issued by the king.159 Power was given in this charter to the local councils to cause to be made a coin to pass current between the people of the several colonies, of such metal and in such manner and form as the said several councils should limit and appoint.160
What is known as the Second Charter of Virginia was in substance a separate grant of the rights and privileges given in the first charter to the first colony, or to the adventurers who proposed to develop that part of the country which we now know as Virginia and North Carolina. It was issued by James I. in 1609 and ordained, established and confirmed, that there should be perpetually one Council “here resident,” according to the tenor of the former Letters Patent. This Council had power to make, ordain, and establish all manner of orders, laws, directions, institutions, forms, and ceremonies of government and magistracy, fit and necessary for and concerning the government of the said Colony and Plantation.161
The Third Virginia Charter was granted by James I., 12 March, 1611–12. It enlarged the domain somewhat, made some changes in the matter of administration, and confirmed all former privileges, unless the same were revoked or altered in that patent.162
In 1621 James I., and in 1625 Charles I., granted Nova Scotia to Sir William Alexander.163 In each of these grants power was given to coin money of any metal and in any manner or form that the grantee might desire, for circulation among the inhabitants.164 These grants also contained power to grant titles,165 under which Sir William Alexander, in 1630, conferred upon Charles St. Etienne the title of Baronet of New Scotland.166
The foregoing includes all that I have found, touching the topic under consideration, which could have come to the knowledge of the early settlers in Massachusetts Bay prior to their landing in America. There are certain peculiarities in the Maryland charter and in the grants to Sir Edmund Plowden and to Sir Ferdinando Gorges which may have come to their knowledge within a few years after their landing, and which may perhaps be entitled to consideration.
The Charter of Maryland was issued by Charles I. in 1632. It contains the grant of power to confer titles and to incorporate towns and cities.167
Under the grant of Charles I., in 1634, to Sir Edmund Plowden, of the Province of New Albion, he was authorized “villages into boroughs and boroughs into cities, because of the merits of the inhabitants and fitness of the places, with privileges and proper immunities to erect and incorporate.”168
The grant of the Province of Maine was made by Charles I. to Sir Ferdinando Gorges, 3 April, 1639. The grantee had the right to erect, raise, and build cities, towns, and villages, “and the said cities, boroughs, and towns, to grant letters or charters of incorporation, with all the liberties and things belonging to the same.” In the exercise of the power thus conferred, the present town of York was twice incorporated as a city in 1641, first under the name Acomenticus, and second as Gorgeana.169
The patentees of the Carolina grant, which in 1665 was extended so far south as to include the mouths of the Mississippi, were empowered to grant peculiar titles of honor, different from those in use in England, to great planters in Carolina, and it is said that they did confer the titles of Landgrave and Cacique.170
review of the grants.
A review of these grants shows that no particular form was adopted in their issue. We find the king delegating his powers to confer titles, to coin money, and to erect incorporations. Power of self-government was granted to the colonists in all the charters, subject in all cases to the proviso that the laws should not be repugnant to the laws of England, and with varying degrees of freedom as to the power of original legislation in the several charters. The personal relations of the grantees to the Crown probably had a determining influence in settling the extent of the privileges conveyed in each grant, and those who were able to secure grants, but whose influence did not enable them to obtain unusual privileges, were compelled to abide by the result. They could exercise the specific powers which had been granted, but had no other rights than such as were given in the instrument from which those powers were derived. Having these points in view, we are in position to give full weight to the instructions given to the first settlers under the Massachusetts charter.
policy of the massachusetts company.
The fear that Endicott might in his zeal overstep the lines of the charter led Craddock to write him, under date of 17 April, 1629, advising him to punish libertines, as near as may be according to the laws of the Kingdom of England; but if they did not amend, to proceed to punish them as the nature of their fault deserved. To this was added, “And the like course you are to hold both with planters and their servants, for all must live under government and a like law; and to the end you may not do anything contrary to law, nor the power granted us by his Majesty’s Letters Patents, we have as aforesaid sent you the Letters Patents under the great seal of England, ordering and requiring you and the rest of the Council there, not to do anything, either in inflicting punishment on malefactors, or otherwise, contrary to or in derogation of this said Letters Patents.” If these trespassers should prove incorrigible, then the order was distinct and positive: “Ship such persons home by the Lion’s Whelp.”171
Thus we see the Colonists, even before the charter had been brought over to Massachusetts, confronted with the same difficulties as those which Winthrop and his followers afterward had to surmount. Craddock’s method of solution was the same as that which was afterward adopted. Suppress libertinism, keep the colony homogeneous, ship the malefactors back if you can not do better; but keep within the letter of the patent if you can.
Such was the policy outlined while the Company still had an organization in England, and such remained the permanent policy of the Colonial government after the perilous step of bringing over the Charter emphasized the necessity for caution. The conservative feature of this policy, the keeping within the law, is to be found in what they did not do, rather than in what they actually did; but the relief from monarchical pressure which they experienced during the Protectorate permitted occasional action during this period which can only be explained by bearing in mind when it took place.
the law of corporations in 1630.
The only question of legislation with, which I propose to deal is that which I have indicated, — the establishment of corporations. We are so accustomed to the use of the fictitious person in pro moting business and social enterprises, that it is not easy to realize the importance attached to the creation of a corporation in the earlier part of the seventeenth century. Winthrop was undoubtedly familiar with the learned discussion of the subject by Lord Coke in the famous case of Sutton’s Hospital, in 1612,172 in which it was laid down that one of the essences of a corporation was “lawful authority of incorporation,” and that this, when exercised, should be by words sufficient in law, but not restrained to any certain, legal, and prescript form of words.173 These were the substantial principles which controlled the incorporation by charter, which in turn could come only from the king, either by his own original act or by authority of Parliament. As to municipalities, the inhabitants or the burgesses of a town or borough were in old time incorporated, according to Lord Coke, when the king granted to them to have gildam mercatoriam, but municipalities might, and indeed did exist, without incorporation, either by prescription or charter. Chief-Justice Vaughan, writing in the last quarter of the seventeenth century, speaks of “townships, vills, hamlets, or counties which are not corporate.”174 This view, that is to say, the possibility of extensive municipal organizations without incorporation, evidently coincides with the opinion of our early legislators. Great confusion exists in the use of terms indicating the various organizations or bodies which exercised functions that to-day would be regarded in themselves as requiring the intervention of the corporate existence. Shires or counties, towns, villages, plantations, settlements, districts, proprieties or land granted to proprietors, churches, parishes, precincts, societies, congregations, and in Plymouth Colony neighborhoods and wards, apparently clash together when we seek to define them; and if there is now or ever was a necessity that any of them should be incorporated, it is difficult to draw the line and say why the same rule does not apply to the others.
quasi municipal corporations in the colony.
The formality of establishing a town even by entering upon the records a date when it was given a name was not always complied with. In many instances our only knowledge of the existence of such a place is the reference to it by name as if it were already established. The foundation of Boston and Charlestown is probably to be found in the instructions issued 17 April, 1629, by Craddock to Endicott, to send forty or fifty persons to Mattachusetts Bay to inhabit there, and in the same letter the instructions to appoint one to be minister with those sent to inhabit at Mattachusetts Bay. Salem is referred to in the same letter as Nahumkeeke. Charlestown had found its name in 1630, and Boston yielded up Trimountaine and was formally christened with its present name by the General Court the same year. It is needless, however, to follow the peculiarities of the records in their meagre allusions to towns which sprang into existence, to plantations and villages which were authorized and subsequently promoted to be towns, and to grants to proprietors who were to undertake the establishment of towns. No system prevailed in legislation upon the subject in the Colony of the Massachusetts Bay, although as time went on it became customary to use words which indicated that the inhabitants of the town were granted the liberties and privileges of a township.
In Plymouth, although the records reveal precisely the same lax methods, there seems to have been quite early an appreciation of the fact that some system ought to be inaugurated in these matters, and in 1638–39 a form was prescribed for the language to be used in establishing a township. It was entitled
“A forme of the deputac̄on or committeeship wherewith any shall be betrusted by the government for the disposall of any lands wthin any pticular place or limmits which is or shall be thought meete for the erecting of a plantac̄on, neighborhood, colony, towneship, or congregac̄on wthin this governmt.”175
The form itself had no peculiar significance, except so far as it was a recognition of the fact that uniformity of procedure was desirable. Organizations effected under it were obviously not corporations under ordinary interpretation of language.
Chief-Justice Gray, in a leading case in the Massachusetts Reports,176 sums up the legal aspects of these proceedings in the following words: —
“At the first settlement of the Colony, towns consisted of clusters of inhabitants dwelling near each other, which, by the effect of legislative acts, designating them by name, and conferring upon them the powers of managing their own prudential affairs, electing representatives and town officers, making by-laws, and disposing, subject to the paramount control of the legislature, of unoccupied lands within this territory, became in effect municipal or quasi corporations, without any formal act of incorporation.”
That the granting the inhabitants of a town the right to call it by a certain name, or even the grant of the liberties and privileges of a township, was not considered at the time towns were thus established as creating a corporation, is evident from the fact that in 1650 the inhabitants of Boston petitioned for an act of incorporation.177 In response thereto the Court expressed a willingness to grant the petition if the act were a suitable one for them to pass, and referred the petition to the next session. In other words, notwithstanding Boston had been designated by name and had for years exercised the before-mentioned powers, the town was not then looked upon as a corporation. In 1659 the Court judged meet that the inhabitants should “consult and advise amongst themselves as to a charter and then draw it up in form, and present it to the next session.”178 In 1661 a petition, which probably referred to the same matter, was answered by the Court to the effect that three petitions of like nature had already been received, and the petitioners were referred to them for answer.179 In 1662, in an answer to a petition of certain inhabitants of Boston, a “new charter now in court” is alluded to.180 The same petitioners renewed their petition next year, and the same words are used in the answer in 1663.181 In May, 1677 the town instructed her deputies to the General Court to use their endeavors that this town may be a corporation, or made town and county.182 The nearest approach that the town of Boston made to securing an incorporation as a town was under the Provincial Charter, in 1772,183 when the Overseers of Poor of the town of Boston were created, made, erected, and incorporated into a body politic by the name of the Overseers of the Poor in the Town of Boston in the Province of the Massachusetts Bay in New England, with power to receive and take charge of gifts and bequests.
towns declared to be corporate under the state constitution.
Thus the matter stood down to the time of the Constitution, which instrument in one section refers to “places unincorporated,”184 and in another to “towns now incorporated and places hereafter to be incorporated.”185 There can be no particular inference drawn from this language, as the right of the Province under the Charter to create corporations subject to the approval of the Crown, seems to have been fully admitted by the Privy Council. Soon after the adoption of the Constitution of the Commonwealth it was for the first time expressly enacted that “the inhabitants of every town within this government are hereby declared to be a body politic and corporate,” and it was held by the Supreme Court, even before it was declared by statute, that towns, as well as counties, territorial parishes, and school districts, by virtue of their existence as quasi corporations, were capable of performing various duties.186 The singular fact remains that it was not until after an amendment to the Constitution was passed, in 1820, specially authorizing the incorporation of towns into cities, that Boston, as a city, was for the first time by special act incorporated.
charters under the colony.
If we turn now to private companies to which charters were granted which conveyed powers the exercise of which we should regard as only to be justified under corporate form, and companies to which charters were granted which openly created corporations, we find the following facts: —
It is evident that some sort of a monopoly was granted to certain “undertakers of glass-works” about the year 1642, from the tenor of petitions in 1645, of employees of the undertakers, asking to be freed from their engagements with the glass-works.187
In March, 1643–44 Valentine Hill, Capt. Robert Sedgwick, Mr. William Tinge, treasurer, and others, petitioned the General Court that they might be established as a free company of adventurers.188 The privilege was granted, with power to the petitioners to make such wholesome orders in the well managing of their trade as is granted to such companies in other parts. They were to have a monopoly of the trade that they should discover “in those parts” for the space of twenty-one years. What “those parts” were can only be inferred from the fact that it was provided that the adventurers should have letters granted them under the public seal, to the Dutch, or the Swedes, or any others they might necessarily have to do with. In the margin in the Colony Records the secretary gives us a hint that this grant was a monopoly of the Indian trade, but under the vague terms of the act the Company could have monopolized the foreign commerce of the Colony. Its powers paralleled those of the great trading companies in Europe, some of which had already secured a foothold in Oriental commerce. It was probably what would have been called in England a “regulated company,” and did not need incorporation.
In March, 1643–44 a monopoly for twenty-one years was granted to certain undertakers of iron-works,189 they to put into the venture one hundred pounds each, and at the end of two years to turn out sufficient iron for the country’s use. In November, 1644190 the undertakers and adventurers of the iron-works were granted large tracts of land, extensive rights to building materials, and remarkable privileges in the way of making ponds and water-ways, with rights of way over lands of proprietors. Another grant of somewhat similar character was made in 1645.191 The company was not successful, and in 1654 they brought suit against a former agent. The suit is entered of record as Mr. Josiah Winslow & Capt. Robt. Keane, deputies and attorneys for the Undertakers of the Iron Works, plaintiffs, against Mr. John Giffard, late Agent, defendant.192 No words of incorporation are used in the granting of this monopoly; but the character of the company, its purposes and its methods, so far as we can get at them, closely approximate those of the modern business corporation. Still, it is only an approximation.
In 1645 Richard Saltonstall, Mr. Simon Bradstreet, Mr. Samuel Symonds, and others,193 petitioned to be established as a free company of adventurers, with power to admit others and to make such orders for managing their affairs as is granted unto such companies in other parts. This petition was granted. Here again we have an organization the definition of whose powers, like that given in the grant to Hill, Sedgwick, and others, is co-ordinate with the powers given in the charters of the most favored companies to which the Crown had granted Letters Patent; yet the distinct creation of a corporation is avoided.
In 1648 acts were passed establishing in the town of Boston a Shoemakers’ Guild and a Coopers’ Guild, each for the term of three years.194 In the margin against these acts the words “Shoemakers Incorporate,” “Coopers Incorporate” are respectively written.
It will be sufficient if I give the substance of the Shoemakers’ Guild, which was “commissioned,” according to the language of the act, 18 October, 1648. Liberty and power were granted to Richard Webb, James Everell, Robert Turner, Edmond Jackson, and the rest of the shoemakers inhabiting, and housekeepers, in the town of Boston, or the greater number of them (upon due notice given the rest), to assemble and meet together in Boston, at such time and times as they should appoint, with power to choose officers, which officers should each take an oath suitable to his place, before the governor or one of the magistrates, the same being prescribed by the Court; to make orders for the well-governing of their company, in the managing of their trade, and to annex reasonable penalties for the breach of the same; such orders to be approved by the Court of the County or by the Court of Assistants. Certain of the officers were to have power to hear and determine offences against any of the said orders, to inflict the prescribed penalties, and to assess fines to the value of forty shillings or under. Persons not approved by the officers of said Shoemakers to be sufficient workmen were to be suppressed, on complaint to the County Court. No unlawful combination, however, was to be made by the said Company of Shoemakers to enhance the price of shoes, boots, or wages. It was also provided that in cases of difficulty the officers and associates were to proceed under the advice of the judges of the courts; and that no shoemaker should refuse to make shoes for any inhabitant, out of his own leather, at reasonable rates. Appeal was allowed to the County Court for excessive fines. This Commission was to continue and be of force for three years and no longer, except the General Court should continue the same.
This act and the act creating the “Commission” of the coopers, confer remarkable power, but do not use language which by specific terms can be said to erect corporations.
In 1648 the vintners of Boston and Charlestown, for a consideration, were granted the monopoly of the trade for five years.195 A grant of a monopoly is not an act of incorporation, but this grant could hardly have been carried out except by the recognition of the vintners as an organization.
In 1650 Henry Dunster petitioned for a charter for Harvard College,196 to which answer was made that the Court was ready to grant a corporation to the College. This petition appears in the records as subsequent to the date of the act of incorporation, which was 30 May, 1650. It evidently should precede that act.
In the Charter of Harvard College,197 the General Court distinctly say that the College shall be a corporation. The President and Fellows for the time being are forever thereafter to be, in name and fact, one body politic and corporate in law, to all intents and purposes, and to have perpetual succession, and to be called by the name of “President and Fellows of Harvard College.” In the passage of this act the General Court cut loose from the caution which had previously restrained them in dealing with the subject of corporations. One thing, however, is to be noticed: the act of 1642, in which the affairs of the college are placed under the supervision of a body of Overseers who are not incorporated, is published in the Book of the General Laws and Liberties of 1660 and in the revised edition of 1672, but it was not thought worth while to include the act of 1650. The direct effect of this omission may be noted in Randolph’s report in 1676, where he says, “The government of these colleges is in the Governor and Magistrates of Massachusetts and the President of the College, together with the teaching elders of the six adjoining towns,” — a description evidently based on the act 1642. Up to this time the College is generally spoken of in the records of the College as “The Society,” and this phrase is used even after this date.
In June, 1652 certain persons were declared to be from “hence-forth a corporation”198 and “incorporated into one body or company,” for the purpose of furnishing water to the residents of Conduit Street,199 Boston. No corporate name is given, but the officers had the right, under certain circumstances, to implead in the name of the whole company or body. Any proprietor of lands within the said street could be admitted into the company by the wardens, with the consent of the major part of the company. Unless words of succession are to be found in “henceforth” and in the provision that others might be admitted, this so-called corporation had neither name nor succession.
There were no other incorporations200 or attempts at incorporations until after the promulgation of the Province Charter, with the exception that in 1672, in President Hoar’s day, there is an alleged new charter for the College extended in the Colonial Records.201 Whether the act passed is not known. No recognition of it appears to have been made by the College. It does not appear in the published laws of the Colony. No stress, however, can be laid upon this omission, inasmuch as the Charter of 1650, as I have already stated, is also conspicuous in its absence from the same publications. If this Charter was actually enacted to be a law, it was at best merely a substitute for the Charter of 1650 of which it was practically an amendment.
Words sufficient in law to create corporations can hardly be said to have been used in any of the before-enumerated grants by the General Court of the Colony to undertakers, adventurers, or companies, nor are they to be found in the Commissions of the guilds. In what might have proved to be the solitary exception to this statement, the nameless aqueduct company of Conduit Street, the lack of a name and the failure to provide for succession are probably fatal defects. If we turn to the Harvard College Charter we find there the language which was considered to be necessary for the creation of a charter which was conceived to be of importance. The Charter which was drafted for the town of Boston in 1650 has also been preserved, and is of the same character.202
harvard college, “the corporation.”
Having thus briefly reviewed the precedents in antecedent charters, and the status of the law of corporations in the seventeenth century, and having taken a glance at the municipalities existing in Colonial days and at the associations and corporations then created by the General Court, let us pass in special review certain facts in connection with the prudential affairs of Harvard College, the sole surviving colonial corporation, if not the only corporation which was created during that period.
The act of 1636, establishing the College, was by its terms a simple agreement to contribute toward the support of a school or college, the time of payment of the contribution and the site of the college not being definitely fixed by this act. The language is as follows: The Court agree to give four hundred pounds towards a school or college, whereof two hundred pounds shall be paid next year, and two hundred pounds when the work is finished; and the next Court to appoint where and what building. The next year, 1637, the College was ordered to be at Newtown, and twelve men were appointed to take order for a college at Newtown. This was all the existing legislation when John Harvard died and left to the College money enough for those having the matter in charge to begin the construction of a building. Fortunately for the College, Harvard’s estate was in such form that his executors could promptly settle it and pay over the money to Eaton in Cambridge.
A prudent man, about to build a house, secures in advance the title to the land which he proposes to occupy. The only real estate in the possession of the College to-day the title to which is known to run uninterruptedly from 1638 to the present time is a lot of two acres and two thirds, supposed to be included within the College yard, which was then set off by the town to “the Professor,” with a memorandum to the following effect: The two acres and two thirds above-mentioned to the Professor is to the town’s use forever for a public school or college, and to the use of Mr. Nath. Eaton as long as he shall be employed in that work, etc.203 A few years since I made a search for the site of the first college building. My expectation was that I should be able to trace it to the lot granted by the town, but to my surprise, I reached the conclusion that it must have been on another lot, the title to which in 1638 stood in Eaton’s name on the proprietary records.
The curious nature of the grant of the town of Cambridge to the Professor, for the town’s use, for Eaton’s use, seemed to me, at first, merely the work of incompetent men; but when the situation of affairs is examined more closely the whimsical nature of the language does not seem so absurd. The town wanted to grant a lot to the College, but found no organization in which they could lodge a title, and to avoid putting absolute title in Eaton reserved it for the town’s use. It is possible that this reservation to the town’s use is what kept the building off this lot, — that is, if I am right in my conclusion that it was erected on the Eaton lot.
The act of 1642 authorized and empowered the Overseers to dispose, order, and manage to the use and behoof of the said College and the members thereof, all gifts, legacies, bequeaths, revenues, lands, and donations, as either have been, are, or shall be, conferred, bestowed, or any ways shall fall or come to the said College.204 Between the date of the passage of this act and the grant of the Charter, the College received three or four bequests or grants of land. In one of these, the grant of the Fellows Orchard by John Bulkley, the conveyance of the title to Henry Dunster, President of the College, for the use of the Fellows, shows that in the minds of some, the act of 1642 did not entirely accomplish its purpose.
The Charter of 1650, the same under which the affairs of the College are now managed, has been already alluded to. The Appendix to the charter passed in 1657 in no way affected the questions which we are considering. The draft of a charter which, in 1672, appears in the Colony Records is so inconsistent with any theory of the needs of the College, and the total omission of reference to it in the records at Cambridge so peculiar, that I have no explanation to offer for it. If it was passed it violates my idea that there was a persistent effort to avoid cumbering the records with needless conflicts with the Crown on law points, although it may of course be said that this act being in effect a mere amendment of an existing charter, its passage would not have been regarded in the same way as the creation of a new corporation would have been.
Referring to the period after the determination of the scire facias, Quincy says: “By the revocation of the Colonial Charter of Massachusetts in 1684, the Charter of the College was, by necessary construction, also vacated.” Whether this was so or not, it is certain that it was so regarded at the time. Joseph Dudley, President of the Council in 1686, and William Stoughton, Deputy President, on the twenty-third of July in that year, with their Council, met at Cambridge, and appointed Increase Mather Rector, and John Leverett and William Brattle Tutors, enjoining upon the Rector to make his usual visitation, and vesting in the last two the government of the college.205
The resignation of Samuel Nowell, Treasurer, having been received, John Richards was re-appointed Treasurer of the College, 22 October, 1686, and he then made the following entry in one of the College account-books: —
“1686, October 22. I tooke care againe of the Colledge stocke ⅌ ⅌suasion of mr Dudley, mr Stoughton, & mr Incr. Mather, & recd of mr Saml Nowell, the late Treasurer, the severall Papers underneath written, & am ordered to new make all the Obligations, mortgages, &c., & take them in myne owne name, as by one Instrument of this date signed between us Interchangably appears.”
In the account-books of the same Treasurer, under date of 1 August, 1687, another entry appeared which is equally interesting. The account in which this entry is made appears to be Richards’ cash account. It is headed “Stocke belonging to Harvard Colledge att Cambridge.” Stock is credited with moneys received by him, and charged with his disbursements. On the first day of August, 1687, the credit entries footed up £130 11s. On that day he paid out “for recording mortgage to mr Dudley” £1 8s., and “to another for bonds, &c.,” 13s., making £2 1s. This amount when added to previous disbursements apparently left in his hands £19 11s., which he paid over to Increase Mather. The entry in explanation of that payment is carefully erased, but the debit items are posted up, making £130 11s., an exact balance of his cash. The footings are entered on each side and ruled off. An explanatory entry is made on each page to this effect: —
“Thus farr an Accompt was demanded by Sr Edmd Andross & delivered to him.”206
The Province Charter was granted 7 October, 1691. Increase Mather, writing from London 16 November, 1691, says207: —
“I humbly proposed to some great ministers of state that a particular charter might be granted for the incorporating that school for Academical learning. Answer was made that it should be so if I desired it, but that a better way would be for the General Court of the Massachusetts Colony by a law to incorporate their College, and to make it an University, with as ample privileges as they should think necessary.”
The College Charter, passed 27 June, 1692, was disallowed by the Privy Council, 22 August, 1695,208 because power was not reserved for the king to appoint visitors. A new Charter was drawn up in 1696, but was successfully opposed by Increase Mather.209 12 October, 1696 Lieutenant-Governor Stoughton went to Cambridge, and appointed the former President, Fellows, and Treasurer to manage the College until the king’s pleasure should be known, or a settlement of the College obtained.210 Another Charter was drawn up and passed in 1697. This was disallowed by the Privy Council, 24 November, 1698.211 On the twenty-fifth of July, 1699 the Council, on motion of the House of Representatives, as appears by the title of the chapter in the Province Laws, formally advised the executive to continue the government and direction of the College with the gentlemen of the late corporation, to have and exercise the same until further order.212 In July, 1699 another Charter was passed. This contained a clause to the effect that no one should be President, Vice-President, or Fellow of the Corporation, unless he should declare himself and continue to be of the Congregational or Presbyterian persuasion in matter of religion. For this reason it met with Bellomont’s disapproval.213 The House of Representatives, 23 March, 1699–1700, appointed a committee to wait on the Governor with a message, praying that the care and government of the College might be continued in the hands of the late Corporation until other provision should be made. This was concurred in by the Council.214 14 June, 1700 an address to his Majesty was agreed upon, which prayed, among other things, for the settlement of the College.215 9 July an address to the Earl of Bellomont was agreed upon, in which he was requested to improve his interest in his Majesty and the Ministers of State, in behalf of the Province, for the settlement of the College at Cambridge, according to the ends and interests of the first founders. This address was forwarded 12 July, and was accompanied with the heads of a Charter for incorporating the said College.216 The Charter alluded to in the address to the Governor was adopted 12 July.217 The address was evidently held back until the Charter should be passed. The same day a resolve passed appropriating five hundred pounds for the Governor, to be improved in managing the address of the Court to the king.218 The address reached the Board of Trade, but apparently the draft of a Charter did not accompany it.219 The agreement by the two Houses to a Charter led to the passage the next day of an order providing that the officers named in the proposed Charter should manage the affairs of the College until his Majesty’s pleasure should be known as to the settlement of the College.220 The proposed Charter by its terms required that the President should reside at Cambridge. The failure of Increase Mather to comply with that condition, showed that some provision should be annexed to the order which had been passed entrusting the management of the College to the persons named in the proposed Charter, which should provide for the government of the College in case of Mather’s refusal, illness, or death. This contingency was covered, therefore, by an order passed 14 March, 1700–1701 entrusting the care of the College, in either of those events, to the Vice-President and the other gentlemen named.221 By the passage of a resolve 1 August, 1701, Samuel Willard was invited to accept the care and charge of the College.222 Mr. Willard’s church would not consent to his residence at Cambridge. As the General Court was about to adjourn, the Council, 9 August, 1701, by resolve, were invested with the charge of the College until the next session of the General Court.223 On the sixth of September, 1701, a resolve was passed inviting Samuel Willard, nominated as Vice-President, to take charge of the College.224 Willard’s power to confer degrees having been questioned, it was determined to be sufficient under the resolve already passed.225 Quincy says that, in 1705, Governor Dudley intimated to the Council that, by letters from England, there was encouragement to hope that a Charter of incorporation might be obtained from her Majesty for Harvard College, in Cambridge, if proper application were made, and the draft proposed in his late Majesty’s reign was ordered to be laid on the table to be read.226 No measures, however, were taken in either branch in consequence of these suggestions of Governor Dudley. The vote declaring that the Charter of 1650 had not been repealed or nulled was passed in 1707. Under this authority the reconstructed Charter became and has continued to this day to be, the frame of government of the University.227
Our examination of current events has shown, I think, a reluctance to tread upon the king’s prerogatives, which held the General Court back until the ascendency of Cromwell seemed so well assured that they ventured to overstep the mark. Harvard College profited by this. The abrogation of the Colony Charter upset the affairs of the College, and the doubts as to what could be done, which continued from that time until 1707, have always been understood. But it has not heretofore been known that Nowell,228 who was a man of moderate means, terminated his pro tempore treasurership at this date, in order that Richards might take the securities in his own name. Nor has the imperious demand of Andros, that they should submit a statement of account, been heretofore reported. We may judge from the step taken in lodging the securities in the name of the College Treasurer how the perils of the situation were then regarded. The inspection of the accounts by Andros shows his belief that a supervisory power existed on the part of the Crown.229
The Province Charter provided that lands held by individuals, bodies politic or corporate, towns, villages, colleges, or schools, whether by grant of general or by any other lawful title, were to continue to be held according to the purport and intent of the respective grants.230 This recognition of the possibility of land titles vested in corporate bodies, coupled with the fact that all laws thereafter to be passed by the Provincial Legislature should be submitted to the king, foreshadowed what was to take place, namely, a recognition of the power of that body to erect incorporations subject to the approval of the Crown. This of course removes all proceedings of this nature from direct consideration under the topic which I am discussing. Yet I think that the caution with which this power was exercised during the existence of the Province Charter carries with it a lesson worthy of study. Since the exercise of this power could only be effected with the approval, first, of a governor holding office by royal appointment, and, second, by the king himself, or by his authorized representatives in England, we may infer not only from the actual exercise of the power, but also from the restraints imposed upon that exercise, what were the views of the Crown on this subject.
The language used during this period in the establishment of new towns, parishes, precincts, and districts varies in the different acts, titles, and preambles, as far as the uniformity of purpose will permit. Towns are erected or incorporated, and the people are constituted or made a township, or are invested with the privileges and immunities of a township. No particular value seems to be attached to any particular word or words in the acts, or to any set form of phraseology. The title may be, An Act for the Erection of a Town; the preamble of the same act may state that the inhabitants are desirous of being incorporated, or suffer inconvenience from not being incorporated, while the act itself may simply state that they are made or constituted a town. It is evident, however, that whatever the specific form used in these acts, and whatever the inconsistencies of language between the titles, the preambles, and the acts themselves, the result of an incorporation was practically obtained. When we turn to private corporations, we find the following record: —
The Marine Society of Boston in New England was incorporated 25 January, 1754.231
The Deacons of all the several Protestant Churches, not being Episcopal Churches, and the Church Wardens of the several Episcopal Churches, were incorporated for the purpose of holding eleemosynary funds, 10 January, 1755.232
The Feoffees of the Ipswich Grammar School were incorporated for ten years, 17 February, 1756.233
The Trustees of the Second Parish of Rehoboth were incorporated 30 June, 1761, to hold certain funds of the parish.234
The Trustees of the First Parish of Rehoboth were incorporated 11 February, 1762, for similar purposes.235
The Society for Propagating Christian Knowledge among the Indians of North America was incorporated February 11, 1762. This act was negatived by the Crown, because by its terms the acts of the Society would extend beyond the limits of the Province, and because it was not subject to audit or control.236
The Feoffees of the Ipswich Grammar School were again incorporated, this time for twenty-one years, 21 June, 1765.237
The Overseers of the Poor in the Town of Boston were incorporated 25 April, 1772.238
The Marine Society at Salem in the County of Essex was incorporated 25 April, 1772.239
The “Proprietors of Boston Pier, or the Long Wharf in the Town of Boston,” were incorporated 14 July, 1772.240
The Marine Society at Marblehead in the County of Essex, was incorporated 29 June, 1773.241
An Act authorizing the Council to issue a charter to the Massachusetts Charitable Society was passed 16 December, 1779. The charter of this corporation was issued by the Council 15 March, 1780.242
The American Academy of Arts and Sciences was incorporated 4 May, 1780.243
The Trustees of Phillips Academy, Andover, were incorporated 4 October, 1780.244
It will be observed that each of these charters was granted to a society having for its purpose some public use, with the exception of the Long Wharf Company; and the purposes of that corporation even might be regarded as a matter of deep public import. During the same period charters were freely granted in Great Britain to business corporations of various sorts. As early as 1697, Parliament passed an act in restraint of stockjobbing; and although it is known that many of the stocks dealt in were not those of incorporated companies, still the language of the Bubble Act, in 1720, shows that there were among the companies whose stocks were hawked about at the coffee-houses, many which were incorporated. The passage of that act could not at first have had a direct restraining influence in the Province, for it was by its terms apparently applicable only to Great Britain, and it was not until 1741 that it was declared to have originally applied and to be then in force in all and every his Majesty’s dominions, colonies, and plantations in America.245 It is true this act was taken advantage of in the Province to punish the persons engaged in the Land Bank of 1740, but it is evident, from the language of the act, that its original purpose was solely to suppress the speculative mania which wrought such distress in London during the South Sea speculation, and no natural interpretation of the original act could have influenced Provincial legislation. It was not intended to repress in any manner the development of legitimate enterprises, and its power was never invoked in that direction. It seems to me that but one inference can be drawn, namely, that the hesitation and doubt which evidently characterized Colonial legislation on this point, still acted as a restraint in Provincial days; and inasmuch as the power to grant Charters was recognized as inherent under the Province Charter, subject only to approval by the proper authorities, it may be inferred that the restraints imposed upon legislation of this class in the days of the Colony were simply for the purpose of avoiding unnecessary collisions with the Crown.
At the conclusion of the reading of Mr. Davis’s paper, Mr. Abner C. Goodell, Jr., offered these remarks: —
As no other member seems inclined to continue the discussion of the topic which Mr. Davis has presented for consideration in his interesting paper, I feel that I may escape censure for speaking too often if I take the opportunity to say a word or two in amplification of some portions of this essay, which, so far as I know, is the best and fullest résumé of the subject that has ever been prepared.
The facts which Mr. Davis has shown respecting Andros’s assumption of authority over the finances of the College seem to have been overlooked by former students of its history, and are most significant. At first view the declaration in the legislative vote of 1707 that the college charter “has not been repealed or nulled” appears to sustain the theory that the ordinances of the colony were not repealed by the vacation of the colony charter, and Dudley by consenting to this vote may be assumed to have approved this theory, — a position which, taken in connection with his well-known relations to the College during his Presidency of the Council, and later, under Andros, would be a very strong if not conclusive answer to those who maintain the view that the colonial ordinances fell with the charter. The peremptory commands of Andros to the Treasurer, however, shown in the extracts which Mr. Davis produces from the record, prove not that the original charter had been unaffected by the judicial decree, but that Andros exercised the prerogative right of visitation as the king’s representative, which not only indicates, but actually effected, its revival and continuance.
This express recognition of the corporate existence of the College, together with the previous action of Dudley, — and the subsequent acknowledgment by the revolutionary government, and, still later, by the charter and government of the Province, — as shown in the essay, completes the chain of those circumstances which go to establish the fact that the Corporation was kept alive through all the changes and vicissitudes occurring between the colonial period and its formal re-establishment in 1707.
The Corporation having existed from a period certainly as early as 1650, with only provisional changes in its constitution made to suit peculiar exigencies, the reaffirmance of the original act creating it was a proceeding legitimately within the power of the Legislature. This fact did not escape the astute perception of Dudley; nor, as has been supposed,246 was the vote of 1707 inconsistent with the theories which had been held by him or others respecting the authority to grant charters, and respecting the effect upon colonial legislation of the judgment annulling the charter of King Charles. The vote was not an act of incorporation. The corporate body already existed; and it existed, not because it had survived, of its own innate force, the adverse judgment against the colony charter, but because it had been kept alive, regularly and continuously, through every administration since that charter was annulled. The vote of 1707 was the formal ratification of a plan of management of the College and of a system of visitation intended to last until repealed by superior executive authority or by subsequent legislation; but, as the sequel proved, it endured unchanged through the entire Provincial period.
Remarks were also made by Mr. Henry H. Edes and Mr. Robert N. Toppan respecting the power to coin money granted in the early charters, and the extent to which it was exercised.