Popular Law-making: A study of the origin, history, and present tendencies of law-making by statuteStimson, Frederic Jesup
History
Popular Law-making: A study of the origin, history, and present tendencies of law-making by statute
Stimson, Frederic Jesup
Legislation -- United States
In order to understand this whole problem it is necessary to bear
in mind certain cardinal principles of our constitutional law. All
corporations, with the exception of national banks, two or three
railroad companies, and the Panama Canal, have been and are creatures
of the State, not, as yet, of the Federal government, which can only
create them for purposes specifically delegated to it and not merely
for private profit. The power to create corporations is essential to
sovereignty, and the sovereign may decline to recognize all but its
own corporations. Under the doctrine of comity, such corporations can
act in any other State with all the powers given them in the State
where they are created, except only they be expressly limited by a
statute of such other State. They may, however, be entirely excluded;
only not to the destruction of property rights once acquired. On the
other hand, corporations conducting interstate commerce may not be
excluded or such business interfered with by State legislation.
The writer was for four years counsel to the Industrial Commission at
Washington and one of the commissioners appointed to draw the present
business corporation law of Massachusetts. In both such capacities he
had the advantage of hearing the expert opinions of many witnesses.
There were two, and only two, broad theories of legislation about
private business corporations: One view, the older view, that they
should be carefully limited and regulated by the State at every point,
and that their solvency, or at least the intrinsic value of their
capital stock, should, as far as possible, be guaranteed by
legislation, to the public as well as to their creditors and
stockholders; and that for any fraud, or even defect of organization,
the stockholders, or at least the directors, should be liable. On the
other hand, the modern view, that it was no business of the public to
protect investors, or even creditors, and that the corporations should
be given as free a hand as possible, with no limitation as to their
size, the nature of business they are to transact, or the payment
in of their capital stock. This is the corporation problem. The
State-and-Federal problem may be called that other difficulty which
arises from the clashing jurisdictions of the States among themselves
and with the Federal government, their laws and their courts, as to
the corporations now created, particularly railroads and corporations
"engaged in interstate commerce" which may include all the "trusts,"
if the mere fact that they do business in many States makes them so.
Public-domain text, read in full here on John Shaqi.
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