By Gerald E. Frug
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This seems close to the positions taken in the case by both Chief Justice Marshall and Justice Washington. Only if the corporation were completely a state creation, Justice Washington argued, would there be a diminished need to protect property rights from state domination; protection of rights would be unnecessary if there were but one party, the state, involved in the foundation of the corporation. Yet if that were the deﬁnition of public corporations, most cities could not be public corporations: most 42 THE CITY AS A LEGAL CONCEPT were not founded by the government, nor did they belong wholly to the government.
For example, in Philadelphia, one of the two major corporate cities in colonial America, special purpose commissions and voluntary associations progressively assumed duties previously entrusted to the corporation, which was considered archaic and aristocratic. ”18 In general, then, colonial towns did not have the formal corporate structure of the English cities. Instead, they bore a resemblance to the kind of associations that created the medieval towns, and thus their power could have been perceived as based on the freedom of association rather than on corporate rights.
On the one hand, corporate rights had been protected from the king by the Glorious Revolution; these rights, once recognized, seemed to deserve protection from legislative infringement as well. America had rejected the English notion of legislative supremacy in favor of the Lockean concept of a legislative power limited by natural rights. Legislative denial of these rights could be tolerated no more than executive denial. On the other hand, corporations exercised power in society that seemed to limit the rights of individuals to earn their livelihood, and this power, wielded by an aristocratic elite to protect their monopolistic privileges, needed to be controlled by popular—that is, legislative—action.