Monthly Archives: March 2009

03-21-09 Keith Olbermann has called for rewriting the Corporation Laws

It’s about time.
A corporation is NOT a person
– except in Ayn Rand
and in our Laws of Incorporation.

Who are these monsters who control our world? Do they make us more productive? Or do they simply destroy the quality of our lives? This is an important question that needs more, and more focused, historical research. They theoretically permit larger groupings of capital.
What is seriously at issue is – should the officers of a company be protected from liability for the debts of the company?

A historical quotation of British and some French corporation laws of mostly the 19th century can be found at:

Lincoln Steffens has an interesting chapter on the man who wrote the New Jersey incorporation Laws – another interesting example of State’s rights.
Eventually I may type some of it in.

from Prof. Colleen Dunlavy Dept of History
Incorporation Laws
1767 An Act for regulating the Proceedings of certain Public Companies and Corporations carrying on Trade or Dealings with Joint Stocks, in respect to the declaring of Dividends; and for further regulating the Qualification of Members for voting in their respective General Courts, (7 George III. c. 48)
“. . . of late Years a most unfair and mischievous Practice has been introduced of splitting large Quantities of Stock, and making separate and temporary Conveyances of the Parts thereof, for the Purpose of multiplying or making occasional Votes immediately before the Time of declaring a Dividend, of choosing Directors, or of deciding any other important Question; which Practice is subversive of every Principle upon which the Establishment of such General Courts is founded, and, if suffered to be become general, would leave the permanent Interest of such Companies liable at all Times to be sacrificed to the partial and interested Views of a few, and those perhaps temporary Proprietors . . . .” (§1)
only those who have held shares for at least six months are entitled to vote (§1)
the usual oaths and affirmations that stockholders must make before voting are to be altered to include this new requirement. (§2)
at least five months must intervene between declarations of dividends; only one declaration of a half-yearly dividend per meeting of the General Court; decisions to increase dividends must be made by ballot at least three days after the proposal is made. (§3)

An Act for better enabling Her Majesty to confer certain Powers and Immunities on trading and Other Companies [Chartered Companies Act], 17 July 1837 (7 Will. 4 & 1 Vict. c. 73)
“. . . it shall and may be lawful for Her Majesty, Her Heirs and Successors, by Letters Patent to be from Time to Time for that Purpose issued under the Great Seal of the United Kingdom of Great Britatin and Ireland, or in Scotland under the Seal appointed by the Articles of Union to be used instead of the Great Seal thereof, to grant to any Company or Body of Persons associated together for any trading or other Purposes whatsoever, . . . any Privilege or Privileges which, according to the Rules of the common Law it would be competent to Her Majesty, Her Heirs and successors, to grant to any such Company or Body of Persons in and by any Charter of Incorporation.” (§2)
such Letters Patent may provide that suits shall be carried on in the name of one of the officers of the corporation (§3) and may limit the liability of members of the company (§4)
other provisions require the company to be formed on a written agreement (§5) and to make returns [reports to the government] (§6), prohibit changing the name of the company (§7), govern transfers of shares and other returns, bankruptcy, etc., and permit the duration of charters to be limited (§29).
Schedules A-H provides forms for various returns to be filed.

An Act for consolidating in One Act certain Provisions usually inserted in Acts with respect to the Constitution of Companies incorporated for carrying on Undertakings of a public Nature, 8 May 1845 (8 & 9 Vict. c. 16) applies to all companies incorporated by acts hereafter to be passed “and all the Clauses and Provisions of this Act, save so far as they shall be expressly varied or excepted by any such Act, shall apply to the Company which shall be incorporated by any such Act . . . .” (§1)
“. . . Words importing the Masculine Gender only shall include Females . . . .” (§3)
act may be referred to as The Companies Clauses Consolidation Act, 1845 (§4)
provisions regarding distribution of capital, §§6-35; regarding remedies against shareholders, §§36-37; regarding power to borrow money, §§38-55; regarding loans, §§56-60; regarding consolidation of shares, §§61-64; regarding application of capital, §65; regarding general meetings, §§66-80; regarding appointment and rotation of directors, §§81-89); regarding powers of directors, §§90-91; regarding proceedings of directors, §§92-100; regarding auditors, §§101-108); regarding accountability of officers, §§109-114; regarding accounts, §§115-119; regarding dividends, §§120-123; regarding Bye Laws, §§124-127; regarding arbitration, §§128-134; regarding notices, §§135-141; regarding recovery of damages and penalties, §§142-158; regarding appeal, §§159-160; regarding access to the special act, §§161-2.
“. . . this Act shall not extend to Scotland.” (§163) But companies to which this act applies may proceed against any shareholders residing in Scotland who fail to meet calls on the shares. (§164)
“And be it enacted, That this Act may be amended or repealed by any Act to be passed in this Session of Parliament.” (§165)
Schedules A-G provide forms, e.g., for Certificate of Share, for share transfers, for mortgage deed, and proxy.
Voting rights: “At all General Meetings of the Company every Shareholder shall be entitled to vote according to the prescribed Scale of voting, and where no Scale shall be prescribed every Shareholder shall have One Vote for every share up to Ten, and he shall have an additional Vote for every Five Shares beyond the first Ten Shares held by him up to One hundred, and an additional Vote for every Ten Shares held by him beyond the first Hundred Shares; provided always, that no Shareholder shall be entitled to vote at any Meeting unless he shall have paid all the Calls then due upon the Shares held by him.” (§75)
Proxies: votes may be given personally or by proxy according the annexed form “. . . and every Proposition at any such Meeting shall be determined by the Majority of Votes of the Parties present, including Proxies, the Chairman of the Meeting being entitled to vote, not only as a Principal and Proxy, but to have a casting Vote, if there be an Equality of Votes.” (§76)
Majority/Poll: if a particular majority of votes is needed to authorize a proceeding, “such particular Majority shall only be required to be proved in the event of a Poll being demanded at such Meeting . . . .” If a poll is not demanded, the chairman’s declaration of the results is sufficient. (§80)

Limited Liability Act, 1855 (18 & 19 Vict. c. 133) shares must have a nominal value not less than ten pounds (art. I)
the word “limited” shall be the last word of the name of the company (Art I.2)
increases in capital must be registered with the Registrar of Joint Stock Company (Art. VI)
the appointment of at least one auditor shall be subject to approval of the Board of Trade (Art. XIV)
does not apply to Scotland (Art. XVIII)

Joint Stock Companies Act, 1856 (19 & 20 Vict. c. 47)
does not apply to persons engaged in banking or insurance (Art. II)
applies to England, Scotland, and Ireland (Art. V)
companies completely registered under the 1844 act must re-register under this act (Art. CX)
incorporation under this act is mandatory for more than 20 persons “in Partnership in any Trade or Business having Gain for its Object” (with some exceptions — Art. IV)
minimum number of subscribers: 7 (Art. III); each must subscribe at least one share (Art. VIII)
includes Table B, Regulations for Management of the Company, which serves as the default if the company declines to file its own articles of association.

An Act to enable Joint Stock Banking Companies to be formed on the Principle of Limited Liability (21 & 22 Vict. c. 91)

An Act for consolidating in One Act certain Provisions frequently inserted in Acts relating to the Constitution and Management of Companies incorporated for carrying on Undertakings of a public Nature, 28 July 1863 (26 & 27 Vict. c. 118) — copied.
adds to the Companies Clauses Consolidation Act, 1845, and the Companies Clauses Consolidation (Scotland) Act, 1845, “sundry Provisions” that “are now frequently introduced into Acts of Parliament relating to such Companies . . . .” Applies to England, Ireland, or Scotland. (preamble)
* this Act may be cited as The Companies Clauses Act, 1863. (§1)
* additions are under the following headings: Part I, relating to Cancellation and Surrender of Shares (§§3-11); Part II, relating to Additional Capital [including Preference Shares] (§§12-21); Part III, relating to Debenture Stock (§§22-35); Part IV, relating to Change of Name (§§36-39).

Companies Act (30 & 31 Vict. c. 131)
liability of directors may be made unlimited (Art 4-8)
provisions regarding reduction of capital and shares (Art. 9-20)
* provisions regarding subdivision of shares (Art. 21-22)
* associations not for profit may be registered with limited liability, but need not include the word in their name (Art. 23)
* etc. (calls upon shares, transfers of shares, share warrants to bearer, contracts, meetings, winding-up, Art. 24-47)

An Act to amend The Companies Clauses Act, 1863, 2 August 1869 (32 & 33 Vict. c. 48) may be cited as The Companies Clauses Act, 1869. (§9)
* extends to other companies certain amendments to The Companies Clauses Act, 1863, relating to railway companies. (preamble)
* provisions relate to rate of interest on debenture stock (§1, amending Part III of 26 & 27 Vict. c. 118, and §2), power to issue debenture stock (§3), advances to meet debentures falling due (§4), power to issue shares or stock at discount (§5), power to issue residue of original or other capital at discount (§6), restriction on issuing at discount shares or stock already authorized (§7), provided that this act is not to affect provisions as to capital upon which the dividend is limited (§8).

Joint Stock Companies Arrangement Act (33 & 34 Vict. c. 104)
concerns arrangements between companies in the process of being wound up and their creditors

Companies Act, 1877 (40 & 41 Vict. c. 26) —
further provisions regarding reduction of capital

Companies Act, 1879 (42 & 43 Vict. c. 76) —
does not apply to the Bank of England
a bank of issue registered as a limited company shall not be entitled to limited liability in respect of its shares, and this may be indicated on its notes (Art.6)
provisions regarding mandatory auditors and their duties (Art. 7-8)

Companies Act, 1880 (43 Vict. c. 19)
more on the reduction of capital

Companies (Colonial Registers) Act, 1883 (46 & 47 Vict. c. 30) specifying conditions under which a branch (colonial) register or registers of members resident in a colony may be kept in the colony

Companies Act, 1886 (49 Vict. c. 23)
concerns the winding up of companies

An Act to amend the Companies Clauses Consolidation Act, 1845, in respect to voting by Proxy, 24 December 1888 (51 & 52 Vict. c. 48)
Adds to §76 of the CCC (1845): “Provided, that where the shareholder is a member of a body corporate, the proxy may be any member of such body, though not personally a shareholder in the company.” (§2)
Provides templates for forms of proxy papers (§4): general appointment (directs the proxy “to vote in our name as he shall think proper . . . at any meeting”); revocation of general proxy; special appointment (directs the proxy “to vote in our names as he shall think proper . . .” at a specific meeting.

Preferential Payments in Bankruptcy Act (51 & 52 Vict. c. 62) — copy from Palmer, Company Law, 3d ed. (1901)

An Act to amend the Companies Clauses Consolidation Act, 1888, 12 August 1889 (52 & 53 Vict. c. 37) — copied. *
Repeals the words “a member of” in the proviso added in §2 of the 1888 act (51 & 52 Vict. c. 48).

Companies (Winding-Up) Act (53 & 54 Vict. c. 63) — have copy from Palmer, Company Law, 3d ed. (1901)

03-15-09 The Past

When people talk about the ideas and character of periods in the past they often speak as if what they are saying is true for whole populations of people, when in reality they are looking only at the writings of a specialized intellectual elite. It is time certainly for academics to stop this self serving habit, as well as reporters and commentators who draw on their work.

To distinguish between these thoughts, and the thinking of the society as a whole is a difficult task with many problems. But at the least serious intellectual people should stop this habit of sounding like they speak for a whole population when they do not.

The 18th century was “the age of reason” for some thinkers and salons in Paris. But until someone goes back and interviews the variety of people of 18th century France and England, we really don’t know how such ideas lived in the people of that time. There is work to do this – Annales historians and others – but some of such reseaqrch is difficult and some also beyond our ability to recapture. In some cases – and often – the past is gone.

In another way the past is still with us. Those of the world who live without cars, and trains, and telephones, and electricity, and good water supply and anti-biotics and life’s daily uncertainties that technology has modified for some share ways of thinking with people of the past who also lacked these capacities.

And so it is only by blinding ourselves to some of these conditions that we do not see the presence of that kind of past in our world today.

Among the many books that can give us a sense of some of the conditions in the world today are the writings of the Peace Corps worker Moritz Thomsen.

03-12-09 For a more civil White House Press Corps

I sent the following note to the White House Press Corps with a copy to Robert Gibbs:

For a more civil White House Press Corps

Stop asking Robert Gibbs for his opinions as if he were the President.
Let him say if he knows what the President thinks about the matter under discussion.
a. “Does the President bear any responsibility for what Warren Buffett described as confusion and fear –”
b. “any room for improvement there?”
(B – This should be prefixed by ‘Does the President think_____’ )
c. “So, I mean, do you think this makes even a dent in the psyche of the American people?”

Don’t ask the President’s representative or the President what he thinks about every twerpy politician’s remark – Don’t select them to represent an ideology of the questioner or his or her publisher or media owner.
Choose the point of view to be asked about in terms of the genuine importance, long term influence or power, or serious knowledge or questioning of the person being quoted.
Just being a Republican is not enough to merit turning the press conference into a media war rather than a questioning on behalf of the American people.

The press corps should go back to asking questions about strategic FACTS – rather than asking about opinions or prognostications about the future.

The President has the right not to make guesses. If there are questions about such matters that ARE the public’s business that will be obvious enough.

In other words —
Let the press restore civility and intelligence to the public discourse by exercising some judgement and intelligence about what they ask. And learn again the difference between finding things out and simply trying to pretend to an authority they should not possess.

Example of inserting argumentative ideology representing the forumulation of the reporter rather than just asking the
question with which they begin:
“Q Does he believe that everything in that bill is essential spending?
(avoiding the following add on)
considering the over $1.5 trillion deficit he’s projecting for this year?”
(the tag remark is NOT relevant to the question. It may be relevant to a follow up of the answer.)

I hope the Press Corps takes these comments to heart.

I also suggest that Robert Gibbs rephrase the questions so that they are questions – or ignore the truly contentious ones.
Don’t let reporters set the agenda inside the questions. If reporters are thoughtful instead of roosters of ideology than they
can reveal new information by strategically focusing their questions.