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CHAPTER THE EIGHTEENTH.
OF CORPORATIONS.
WE have hitherto confidered perfons in their natural capacities, and have treated of their rights and duties. But, as all perfonal rights die with the perfon ; and, as the neceffary forms of invefting a feries of individuals, one after another, with the fame identical rights, would be very inconvenient, if not impracticable ; it has been found neceffary, when it is for the advantage of the public to have any particular rights kept on foot and continued, to conftitute artificial perfons, who may maintain a perpetual fucceffion, and enjoy a kind of legal immortality.
THESE artificial perfons are called bodies politic, bodies corporate, (corpora corporata) or corporations : of which there is a great variety fubfifting, for the advancement of religion, of learning, and of commerce ; in order to preferve entire and for ever thofe rights and immunities, which, if they were grated only to thofe individuals of which the body corporate is compofed, would upon their death be utterly loft and extinct. To fhew the advantages of thefe incorporations, let us confider the café of a college in either of our univerfities, founded ad ftudcndum et or andum, for the encouragement and fupport of religion and learning. If this was a mere voluntary affembly, the individuals which compofe it might indeed read, pray, ftudy, and perform fcholaftic exercifes together, fo long as they could agree to do fo : but they
could
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could neither frame, nor receive, any laws or rules of their conduct ; none at leaft, which would have any binding force, for want of a coercive power to create a fufficient obligation. Neither could they be capable fo retaining any privileges or immunities : for, if fuch privileges be attacked, which of all this unconnected affembly has the right, or ability, to defend them ? And, when they are difperfed by death or otherwife, how fhall they transfer thefe advantages to another fet of ftudents, equally unconnected as themfelves ? So alfo, with regard to holding eftates of other property, if land be granted for the purpofes of religion or learning to twenty individuals not incorporated, there is no legal way of continuing the property to any other perfons for the fame purpofes, but by endlefs conveyances from one to the other, as often as the hands are changed. But, when they are confolidated and united into a corporation, they and their fucceffors are then confidered as one perfon in law : as one perfon, they have one will, which is collected from the fenfe of the majority of the individuals : this one will may eftablifh rules and orders for the regulation of the whole, which are a fort of municipal laws of this little republic ; or rules and ftatutes may be prefcribed to it at it's creation, which are then in the place of natural laws : the privileges and immunities, the eftates and poffeffions, of the corporation, when once vefted in them, will be for ever vefted, without any new conveyance to new fucceffions ; for all the individual members that have exifted from the foundation to he prefent time, or that fhall ever hereafter exift, are but one perfon in law, a perfon that never dies : in like manner as the river Thames is ftill the fame river, though the parts which compofe it are changing every inftant.
THE honour of originally inventing thefe political conftitutions entirely belongs to the Romans. They were introduced, as Plutarch fays, by Numa ; who finding, upon his acceffion, the city torn to pieces by the two rival factions of Sabines, and Romans, thought it a prudent and politic meafure, to fubdivide thefe two into many fmaller ones, by inftituting feparate focieties of
every
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every manual trade and profeffion. They were afterwards much confidered by the civil law a, in which they were called univerfitates, as forming one whole out of many individuals ; or collegia, from being gathered together : they were adopted alfo by the canon law, for the maintenance of ecclefiaftical difcipline ; and from them our fpiritual corporations are derived. But our laws have confiderably refined and improved upon he invention, according to the ufual genius of the Englifh nation : particularly with regard to fole corporations, confifting of one perfon only, of which the Roman lawyers had no notion ; their maxim being that “tres faciunt collegium b.” Though they held, that if a corporation, originally confifting of three perfons, be reduced to one, “fi univerfitas ad unum edit,” it may ftill fubfift as a corporation, “et ftet nomen univerfitatis c.”
BEFORE we proceed to treat of the feveral incidents of corporations, as regarded by the laws of England, let us firft take a view of the feveral forts of them ; and then we fhall be better enabled to apprehend their refpective qualities.
THE firft divifion of corporations is into aggregate and fole. Corporations aggregate confift of many perfons united together into one fociety, and are kept up by a perpetual fucceffion of members, fo as to continue for ever : of which kind are the mayor and commonalty of a city, the head and fellows of a college, the dean and chapter of a cathedral church. Corporations fole confift of one perfon only and his fucceffors, in fome particular ftation, who are incorporated by law, in order to give them fome legal capacities and advantages, particularly that of perpetuity, which in their natural perfons they could not have had. In this fenfe the king is a fole corporation d: fo is a bifhop : fo are fome deans, and prebendaries, diftinct from their feveral chapters : and fo is every parfon and vicar. And the neceffity, or at leaft ufe, of this inftitution will be very apparent, if we
.{FS}
a Ff. l. 3. t. 4. per tot.
h Ff. 50. 16. 85.
c Ff. 3. 4. 7.
d Co. Litt. 43.
.{FE}
K k k
confider
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confider the café of parfon of a church. At the original endowment of parifh churches, the freehold of the church, the churchyard, the parfonage houfe, the glebe, and the tithes of the parifh, were vefted in the then parfon by the bounty of the donor, as a temporal recompence to him for his fpiritual care of the inhabitants, and with intent that the fame emoluments fhould ever afterwards continue as a recompenfe for the fame care. But how was this to be effected ? The freehold was vefted in the parfon ; and, if we fuppofed it vefted in his natural capacity, on his death it might defcend to his heir, and would be liable to his debts and incumbrances : or, at beft, the heir might be compellable, at fome trouble and expenfe, to convey thefe rights to the fucceeding incumbent. The law therefore has wifely ordained, that the parfon quatenus parfon, fhall never die, any more than the king ; by making him and his fucceffors a corporation. By which means all the original rights of the parfonage are preferved entire to the fucceffor : for the prefent incumbent, and his predeceffor who lived feven centuries ago, are in law one and the fame perfon ; and what was given to the one was given to the other alfo.
ANOTHER divifion of corporations, either fole or aggregate, is into ecclefiaftical and lay. Ecclefiaftical corporations are where the members that compofe it are entirely fpiritual perfons ; fuch as bifhops ; certain deans, and prebendaries ; all archdeacons, parfons, and vicars ; which are fole corporations : deans and chapters at prefent, and formerly prior and convent, abbot and monks, and the like, bodies aggregate. Thefe are erected for the furtherance of religion, and the perpetuating the rights of the church. Lay corporations are of two forts, civil and eleemofynary. The civil are fuch as are erected for a variety of temporal purpofes. The king, for inftance, is made a corporation to prevent in general the poffibility of an interregnum or vacancy of the throne, and to preferve the poffeffions of the crown entire ; for, immediately upon the demife of one king, his fucceffor is, as we have formerly feen, in full poffeffion of the regal rights and dignity. Other lay corporations are erected for the good government of a
town
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town or particular diftrict, as a mayor and commonalty, bailiff and burgeffes, or the like : fome for the advancement and regulation of manufactures and commerce ; as the trading companies of London, and other towns : and fome for the better carrying on of divers fpecial purpofes ; as churchwardens, for confervation of the goods of the parifh ; the college of phyficians and company of furgeons in London, for the improvement of the medical fcience ; the royal fociety, for the advancement of natural knowlege ; and the fociety of antiquarians, for promoting the ftudy of antiquities. And among thefe I am inclined to think the general corporate bodies of the univerfities of Oxford and Cambridge muft be ranked : for it is clear they are not fpiritual or ecclefiaftical corporations, being compofed of more laymen than clergy : neither are they eleemofynary foundations, though ftipends are annexed to particular magiftrates and profeffors, any more than other corporations where the acting officers have ftanding falaries ; for thefe are rewards pro opera et labore, not charitable donations only, fince every ftipend is preceded by fervice and duty : they feem therefore to be merely civil corporations. The eleemofynary fort are fuch as are conftituted for the perpetual diftribution of the free alms, or bounty, of the founder of them to fuch perfons as he has directed. Of this kind are all hofpitals for the maintenance of the poor, fick, and impotent; and all colleges both in our univerfities and out e of them : which colleges are founded for two purpofes ; 1. For the promotion of piety and learning by proper regulations and ordinances. 2. For imparting affiftance to the members of thofe bodies, in order to enable them to profecute their devotion and ftudies with greater eafe and affiduity. And all thefe eleemofynary corporations are, ftrictly fpeaking, lay and not ecclefiaftical, even though compofed of ecclefiaftical perfons f, and although they in fome things partake of the nature, privileges, and reftrictions of ecclefiaftical bodies.
.{FS}
e Such as at Manchefter, Eton, Winchefter, & c.
f 1 Lord Raym. 6.
.{FE}
K k k 2
HAVING
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HAVING thus marfhalled the feveral fpecies of corporations, let us next proceed to confider, 1. How corporations, in general, may be created. 2. What are their powers, capacities, and incapacities. 3 How corporations are vifited. And 4. How they may be diffolved.
I. CORPORATIONS, by the civil law, feem to have been created by the mere act, and voluntary affociation of their members ; provided fuch convention was not contrary to law, for then it was illicitum collegium g. It does not appear that the prince's confent was neceffary to be actually given to the foundation of them ; but merely that the original founders of thefe voluntary and friendly focieties (for they were little more than fuch) fhould not eftablifh any meetings in oppofition to the laws of the ftate.
BUT, with us in England, the king's confent is abfolutely neceffary to the erection of any corporation, either impliedly or expreffly given. The king's implied confent is to be found in corporations which exift by force of the common law, to which our former kings are fuppofed to have given their concurrence ; common law being nothing elfe but cuftom, arifing from the univerfal agreement of the whole community. Of this fort are the king himfelf, all bifhops, parfons, vicars, churchwardens, and fome others ; who by common law have ever been held (as far as our books can fhew us) to have been corporations, virtute officii : and this incorporation is fo infeparably annexed to their offices, that we cannot frame a complete legal idea of any of thefe perfons, but we muft alfo have an idea of a corporation, capable to tranfmit his rights to his fucceffors, at the fame time. Another method of implication, whereby the king's confent is prefumed, is as to all corporations by prefcription, fuch as the city of London, and many others h, which have exifted as corporations, time
.{FS}
g Ff. 47. 22. 1. Neque focietas, neque collegium, neque bujufmodi corpus paffim omnibus babere conceditur ; nam et legibus, et fenatus confultis, et principalibus conftitutionibus ea res coercetur. Ff. 3. 4. 1.
h 2 Inft. 330.
.{FE}
whereof
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whereof the memory of man runneth not to the contrary ; and therefore are looked upon in law to be well created. For though the members thereof can fhew no legal charter of incorporation, yet in cafes of fuch high antiquity the law prefumes there once was one ; and that by the variety of accidents, which a length of time may produce, the charter is loft or deftroyed. The methods, by which the king's confent is expreffly given, are either by act of parliament of charter. By act of parliament, of which the royal affent is a neceffary ingredient, corporations may undoubtedly be created i: but it is obfervable, that moft of thofe ftatutes, which are ufually cited as having created corporations, do either confirm fuch as have been before created by the king ; as in the café of the college of phyficians, erected by charter 10 Hen. VIII. k, which charter was afterwards confirmed in parliament l; or, they permit the king to erect a corporation in futuro with fuch and fuch powers ; as is the café of the bank of England m, and the fociety of the Britifh fifhery n. So that the immediate creative act is ufually performed by the king alone, in virtue of his royal prerogative o.
ALL the other methods therefore whereby corporations exift, by common law, by prefcription, and by act of parliament, are for the moft part reducible to this of the king's letters patent, or charter of incorporation. The king's creation may be performed by the words “creamus, erigimus, fundamus, incorpo- “ramus,” or the like. Nay it is held, that if the king grants to a fet of men to have gildam mercatoriam, a mercantile meeting or affembly p, this is alone fufficient to incorporate and eftablifh them for ever q.
.{FS}
i 10 Rep. 29. Roll. Abr. 512.
k 8 Rep. 114.
l 14 & 15 Hen. VIII. c. 5.
m Stat. 5 & 6 W. & M. c. 20.
n Stat. 23 Geo. II. c. 4.
o See page 263.
p Gild fignified among the Saxons a fraternity, derived from the verb gilban to pay, becaufe every man paid his fhare towards the expenfes of the community. And hence their place of meeting is frequently called the Gild-ball.
q 10 Rep. 30. 1 Roll. Abr. 513.
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THE
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THE parliament, we obferved, by it's abfolute and tranfcendent authority, may perform this, or any other act whatfoever : and actually did perform it to a great extent, by ftatute 39 Eliz. c. 5. which incorporated all hofpitals and houfes of correction founded by charitable perfons, without farther trouble : and the fame has been done in other cafes of charitable foundations. But otherwife it is not ufual thus to intrench upon the prerogative of the crown, and the king may prevent it when he pleafes. And, in the particular inftance before-mentioned, it was done, as fir Edward Coke obferves r, to avoid the charges of incorporation and licences of mortmain in fmall benefactions ; which in his days were grown fo great, that it difcouraged many men to undertake thefe pious and charitable works.
THE king may grant to a fubject the power of erecting corporations s, though the contrary was formerly held t : that is, he may permit the fubject to name the perfons and powers of the corporation at his pleafure ; but it is really the king that king that erects, and the fubject is but the inftrument : for though none but the king can make a corporation, yet qui facit per alium, facit per fe v. In this manner the chancellor of the univerfity of Oxford has power by charter to erect corporations ; and has actually often exerted, it in the erection of feveral matriculated companies, now fubfifting, of tradefmen fubfervient to the ftudents.
WHEN a corporation is erected, name muft be given it; and by that name alone it muft fue, and be fued, and do all legal acts ; though a very minute variation therein is not material u. Such name is the very being of it's conftitution ; and, though it is the will of the king that erects the corporation, yet the name is the knot of it's combination, without which it could not perform it's corporate functions w. The name of incorporation, fays
.{FS}
r 2 Inft. 722.
s Bro. Abr. tit. Prerog. 53. Viner. Prerog. 88. pl. 16.
t Yearbook, 2 Hen. VII. 13.
v 10 Rep. 33.
u 10 Rep. 122.
w Gilb. Hift. C. P. 182.
.{FE}
fir
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fir Edward Coke, is a proper name, or name of baptifm; and therefore when a private founder gives his college or hofpital a name, he does it only as godfather ; and by that fame name the king baptizes the incorporation x.
II. AFTER a corporation is fo formed and named, it acquires many powers, rights, capacities, and incapacities, which we are next to confider. Some of thefe are neceffarily and infeparably incident to every corporation ; which incidents, as foon as a corporation is duly erected, are tacitly annexed of courfe y. As, 1. To have perpetual fucceffion. This is the very end of it's incorporation : for there cannot be a fucceffion for ever without an incorporation z; and therefore all aggregate corporations have a power neceffarily implied of electing members in the room of fuch as go off a. 2. To fue or be fued, implead or be impleaded, grant or receive, by it's corporate name, and do all other acts as natural perfons may. 3. To purchafe lands, and hold them, for the benefit of themfelves and their fucceffors : which two are confequential of the former. 4. To have a common feal. For a corporation, being an invifible body, cannot manifeft it's intentions by any perfonal act or oral difcourfe : it therefore acts and fpeaks only by it's common feal. For, though the particular members may exprefs their private confents to any act, by words, or figining their names, yet this does not bind the corporation : it is the fixing of the feal, and that only, which unites the feveral affents of the individuals, who compofe the community, and makes one joint affent of the whole b. 5. To make by-laws or private ftatutes for the better government of the corporation ; which are binding upon themfelves, unlefs contrary to the laws of the land, and then they are void. This is alfo included by law in the very act of incorporation c: for, as natural reafon is given to the natural body for the governing it, fo by-laws or ftatutes are a fort of political reafon to govern the body politic.
.{FS}
x 10 Rep. 28.
y 10 Rep. 30. Hob. 211.
z 10 Rep. 26.
a 1 Roll. Abr. 514.
b Dav. 44. 48.
c Hob. 201.
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And
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And this right of making by-laws for their own government, not contrary to the law of the land, was allowed by the law of the twelve tables at Rome d. But no trading company is, with us, allowed to make by-laws, which may affect the king's prerogative, or the common profit of the people, unlefs they be approved by the chancellor, treafurer, and chief juftices, or the judges of affife in their circuits e. Thefe five powers are infeparably incident to every corporation, at leaft to every corporation aggregate : for wo of them, though they may be practifed. yet are very unneceffary to a corporation fole ; viz. to have a corporate feal to teftify his fole affent, and to make ftatutes for the regulation of his own conduct.
THERE are alfo certain privileges and difabilities that attend an aggregate corporation, and are not applicable to fuch as are fole ; the reafon of them ceafing, and of courfe the law. It muft always appear by attorney ; for it cannot appear in perfon, being, as fir Edward Coke fays f, invifible, and exifting only in intendment and confideration of law. It can neither maintain, or be made defendant, to, an action of battery or fuch like perfonal injuries ; for a corporation can neither beat, nor be beaten, in it's body politic g. A corporation cannot commit treafon, or felony, or other crime, in it's corporate capacity h : though it's members may, in their diftinct individual capacities. Neither is it capable of fuffering a traitor's, or felon's punifhment, for it is not liable to corporal penalties, nor to attainder, forfeiture, or corruption of blood i. It cannot be executor or adminiftrator, or perform any perfonal duties ; for it cannot take an oath for the due execution of the office. It cannot be a truftee; for fuch kind of confidence is foreign to the ends of it's inftitution : neither can it be compelled to perform fuch truft, becaufe it cannot be committed
.{FS}
d Sodales legem quam volent, dum ne quid ex publica lege corrumpant, fibi ferunto.
e Stat. 19 Hen. VII. c. 7.
f 10 Rep. 32.
g Bro. Abr. tit. Corporation. 63.
h 10 Rep. 32.
I The civil law alfo ordains that, in any mifbehaviour of a body corporate, the directors only fhall be anfwerable in their perfonal capacity, and not the corporation. Ff. 4. 3. 15.
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to
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to prifon k; for it's exiftence being ideal, no man can apprehend or arreft it. And therefore alfo it cannot be outlawed ; for outlawry always fuppofes a precedent right of arrefting, which has been defeated by the parties abfconding, and that alfo a corporation cannot do : for which reafons the proceedings to compel a corporation to appear to any fuit by attorney are always by diftrefs on their lands and goods l. Neither can a corporation be excommunicated ; for it has no foul, as is gravely obferved by fir Edward Coke m : and therefore alfo it is not liable to be fummoned into the ecclefiaftical courts upon any account ; for thofe courts act only pro falute animae, and their fentences can only be inforced by fpiritual cenfures : a confideration, which, carried to it's full extent, would alone demonftrate the impropriety of thefe courts interfering in any temporal rights whatfoever.
THERE are alfo other incidents and powers, which belong to fome fort of corporations, and not to others. An aggregate corporation may take goods and chattels for the benefit of themfelves and their fucceffors, but a fole corporation cannot n : for fuch moveable property is liable to be loft or imbezzled, and would raife a multitude of difputes between the fucceffor and executor ; which the law is careful to avoid. In ecclefiaftical and eleemofynary foundations, the king or the founder may give them rules, laws, ftatutes. and ordinances , which they are bound to obferve : but corporations merely lay, conftituted for civil purpofes, are fubject to no particular ftatutes ; but to the common law, and to their own by-laws, not contrary to the laws of the realm o. Aggregate corporations alfo, that have by their conftitution a head, as a dean, warden, mafter or the like, cannot do any acts during the vacancy of the headfhip, except only appointing another : neither are they then capable of receiving a grant ; for fuch corporation is incomplete without a head p. But there may be a cor-
.{FS}
k Plowd. 538.
l Bro. Abr. tit. Corporation. 11. Outlaw- &. 72.
m 10 Rep. 32.
n Co. Litt. 46.
o Lord Raym. 8.
p Co. Litt. 263, 264.
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L l l
poration
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poration aggregate conftituted without a head q: as the collegiate church of Southwell in Nottinghamfhire; which confifts only of prebendaries; and the governors of the Charter-houfe, London, who have no prefident or fuperior, but are all of equal authority. In aggregate corporations alfo, the act of the major part is efteemed the act of the whole r: which perhaps may be one reafon why they required three at leaft to make a corporation. But, with us, any majority is fufficient to determine the act of the whole body. And whereas, notwhithftanding the law ftood thus, fome founders of corporations had made ftatutes in derogation of the common law, making very frequently the unanimous affent of the fociety to be neceffary to any corporate act; which king Henry VIII found to be a great obftruction to his projected fcheme of obtaining a furrender of the lands of ecclefiaftical corporations) it was therefore enacted by ftatute 33 Hen. VIII. c. 27. that all private ftatutes fhall be utterly void, whereby any grant or election, made by the head, with the concurrence of the major part of the body, is liable to be obftructed by any one or more, being the minority: but this ftatute extends not to any negative or neceffary voice, given by the founder to the head of any fuch fociety.
WE before obferved that it was incident to every corporation, to have a capacity to purchafe lands for themfelves and fucceffors: and this is regularly true at the common law t. But they are excepted out of the ftatute of wills u; fo that no devife of lands to a corporation by will is good: except for charitable ufes, by ftatute 43 Eliz. c. 4. w. And alfo, by a great variety of ftatute x, their privilege even of purchafing from any living grantor is greatly abridged; fo that now a corporation, either ecclefiaftical or lay,
.{FS}
q 10 Rep. 30.
r Bro. Abr. tit. Corporation. 31, 34.
s Ff. 3. 4. 3.
t 10 Rep. 30.
u 34 Hen. VIII. c. 5.
w Hob. 136.
x From magna carta, 9 Hen. III. c. 36. to 9 Geo. II. c. 36.
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mift
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muft have a licence from the king to purchafe y, before they can exert that capacity which is vefted in them by the common law: nor is even this in all cafes fufficient. Thefe ftatutes are generally called the ftatutes of mortmain; all purchafes made by corporate bodies being faid to be purchafes in mortmain, I mortua manu: for the reafon of which appellation fir Edward Coke z offers many conjectures; but there is one which feems more probable than any that he has given us: viz. that thefe purchafes being ufually made by ecclefiaftical bodies, the members of which (being profeffed) were reckoned dead perfons in law, land therefore, holden by them, might with great property be faid to be held in mortua manu.
I SHALL defer the more particular expofition of thefe ftatutes of mortmain, till the next book of thefe commentaries, when we fhall confider the nature and tenures of eftates; and alfo the expofition of thofe difabling ftatutes of queen Elizabeth, which reftrain fpiritual and eleemofynary corporations from aliening fuch lands as they are prefent in legal poffeffion of: only mentioning them in this place, for the fake of regularity, as ftatutable incapacities incident and relative to corporations.
THE general duties of all bodies politic, confidered in their corporate capacity, may, like thofe of natural perfons, be reduced to this fingle one; that of acting up to the end or defign, whatever it be, for which they were created by their founder.
III. I PROCEED therefore next to enquire, how thefe corporations may be vifited. For corporations being compofed of individuals, fubject to human frailties, are liable, as well as private perfons, to deviate from the end of their inftitution. And for that reafon the law has provided proper perfons to vifit, enquire into, and correct all irregularities that arife in fuch corporations, either
.{FS}
y By the civil law a corporation was incapable of taking lands, unlefs by fpecial privilege from the emperor: collegium, fi nullo fpeciali privilegio fubnixum fit, haereditatem capere non poffe, dubium non eft. Cod. 6. 24 8.
z 1Inft. 2.
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L l l 2
fole
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fole or aggregate, and whether ecclefiaftical, civil, or eleemofynary. With regard to all ecclefiaftical corporations, the ordinary it their vifitor, fo conftituted by the canon law, and from thence derived to us. The pope formerly, and now the king, as fupreme ordinary, it the vifitor of the arch-bifhop or metropolitan ; the metropolitan has the charge and coercion of all his fuffragan bifhops ; and the bifhops in their feveral diocefes are the vifitors of all deans and chapters, of all parfons and vicars, and of all other fpiritual corporations. With refpect to all lay corporations, the founder, his heirs, or affigns, are the vifitors, whether the foundation de civil or eleemofynary ; for in a lay incorporation the ordinary neither can nor ought to vifit a.
I KNOW it is generally faid, that civil corporations are fubject to no vifitation, but merely to the common law of land ; and this fhall be prefently explained. But firft, as I have laid it down as a rule that the founder, his heirs, or affigns, are the vifitors of al lay-corporations, let us enquire what is meant by the founder. The founder of all corporations in the ftricteft and original fenfe is the king alone, for he only can incorporate a fociety : and in civil incorporations, fuch as mayor and commonalty, & c, where there are no poffeffions or endowments given to the body, there is no other founder but the king : but in eleemofynary foundations, fuch as colleges and hofpitals, where there is an endowment of lands, the law diftinguifhed, and makes two fpecies of foundation ; the one fundatio incipiens, or the incorporation, in which fenfe the king is the general founder of all colleges and hofpitals ; he other fundatio perficiens, or the dotation of it, in which fenfe the firft gift of the revenues is the foundation, and he who gives them is in law the founder : and it is in this laft fenfe that we generally call a man the founder of a college or hofpital b. But here the king has his prerogative : for, if the king and a private man join in endowing an eleemofynary foundation, the king alone fhall be the founder of it. And, in general, the king being the fole founder of all civil corporations, and the en-
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a 10 Rep. 31.
b 10 Rep. 33.
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dower
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dower the perficient founder of all eleemofynary ones, the right of vifitation of the former refults, according to the rule laid down, to the king ; and of the latter, to the patron or endower.
THE king being thus conftituted by law the vifitor of all civil corporations, the law has alfo appointed the place, wherein he fhall exercife this jurifdiction : which is the court of king's bench ; where, and where only, all mifbehaviours of this kind of corporations are enquired into and redreffed, and all their controverfies decided. And this is what I underftand to be the meaning of our lawyers, when they fay that thefe civil corporations are liable to no vifitation ; that is, that the law having by immemorial ufage appointed them to be vifited and infpected by the king their founder, in his majefty's court of king's bench, according to the rules of the common law, they ought not to be vifited elfewhere, or by any other authority. And this is fo ftrictly true, that though the king by his letters patent had fubjected the college of phyficians to the vifitation of four very refpectable perfons, the lord chancellor, the two chief juftices, and the chief baron ; though the college had accepted this carter with all poffible marks of acquiefcence, and had acted under it for near a century ; yet, in 1753, the authority of this provifion coming in difpute, on an appeal preferred to thefe fuppofed vifitors, they directed the legality of their own appointment to be argued : and, as this college was a mere civil, and not an eleemofynary foundation, they at length determined, upon feveral days folemn debate, that they had no jurifdiction as vifitors ; and remitted the appellant (if aggrieved) to his regular remedy in his majefty's court of king's bench.
AS to eleemofynary corporations, by the dotation the founder and his heirs are of common right the legal vifitors, to fee that that property is rightly employed, which would otherwife have defcended to the vifitor himfelf : but, if the founder has appointed and affigned any other perfon to be vifitor, then his affignee fo appointed is invefted with all the founder's power, in exclufion
of
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Ch. 18.
of his heir. Eleemofynary corporations are chiefly hofpitals, or colleges in the univerfity. Thefe were all of them confidered by the popifh clergy, s of mere ecclefiaftical jurifdiction : however, the law of the land judged otherwife ; and, with regard to hofpitals, it has long been held c, that if the hofpital be fpiritual, the bifhop fhall vifit ; but if lay, the patron. This right of lay patrons was indeed abridged by ftatute 2 Hen. V. c. 1. which ordained, that the ordinary fhould vifit all hofpitals founded by fubjects ; though the king's right was referved, to vifit by his commiffioners fuch as were of royal foundation. But the fubject's right was in part reftored by ftatute 14 Eliz. c. 5. which directs the bifhop to vifit fuch hofpitals only, where no vifitor is appointed by the founders thereof : and all the hofpitals founded by virtue of the ftatute 39 Eliz. c. 5. are to be vifited by fuch perfons as fhall be nominated by the refpective founders. But ftill, if the founder appoints nobody, the bifhop of the diocefe muft vifit d.
COLLEGES in the univerfities (whatever the common law may now, or might formerly, judge) were certainly confidered by the popifh clergy, under whofe direction they were, as ecclefiaftical, or at leaft as clerical, corporations ; and therefore the right of vifitation was claimed by the ordinary of the diocefe. This is evident, becaufe in many of our moft antient colleges, where the founder had a mind to fubject them to a vifitor of his own nomination, he obtained for that purpofe a papal bulle to exempt them from the jurifdiction of the ordinary ; feveral of which are ftill preferved in the archives of the refpective focieties. And I have reafon to believe, that in one of our colleges, (wherein the bifhop of that diocefe, in which Oxford was formerly comprized, has immemorially exercifed vifitatorial authority ) there is no fpecial vifitor appointed by the college ftatutes : fo that the bifhop's interpofition can be afcribed to nothing elfe, but his fuppofed title as ordinary to vifit this, among other ecclefiaftical foundations. And it is not impoffible, that the number of col-
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c Yearbook, 8 Edw. III. 28. 8 Aff. 29.
d 2 Inft. 725.
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leges
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leges in Cambridge, which are vifited by the bifhop of Ely, may in part be derived from the fame original.
BUT, whatever might be formerly the opinion of the clergy, it is now held as eftablifhed common law, that colleges are lay-corporations, though fometimes totally compofed of ecclefiaftical perfons ; and that the right of vifitation does not arife from any principles of the canon law, but of neceffity was created by the common law e. And yet the power and jurifdiction of vifitors in colleges was left fo much in the dark at common law, that the whole doctrine was very unfettled till king William's time ; in the fixth year of whofe reign, the famous café of Philips and Bury happened f. In this the main queftion was, whether the fentence of the bifhop of Exeter, who (as vifitor) had deprived doctor Bury the rector of Exeter college, could be examined and redreffed by the court of king's bench. And the three puifne judges. were of opinion , that it might be reviewed, for that the vifitor's jurifdiction could not exclude the common law; and accordingly judgment was given in that court. But the lord chief juftice. Hoft, was of a contrary opinion ; and held, that by the common law the office of vifitor is to judge according to the ftatutes of the college, and to expel and deprive upon juft occafions, and to hear all appeals of courfe ; and that from him, and him only, the party grieved ought to have redrefs ; the founder having repofed in him fo entire a confidence, that he will adminifter juftice impartially, that his determinations are final, and examinable in no other court whatfoever. And upon this, a writ of error being brought in the houfe of lords, they reverfed the judgment of the court of king's bench, and concurred in fir John Holt's opinion. And to this leading café all fubfequent determinations have been conformable. But, where the vifitor is under a temporary difability, there the court of king's bench will interpofe, to prevent a defect of juftice. Thus the bifhop of Chefter is vifitor of Manchefter college : but, happening alfo to be warden, the
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e Lord Raym. 8.
f Lord Raym. 5. 4. Mod. ic6. Shower. 35. Skinn. 407. Salk. 403. Carthew. 180.
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court
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Ch. 18.
court held that his power was fufpended during the union of thofe offices ; and therefore iffued a peremptory mandamus to him, as warden, to admit a perfon intitled to a chaplainfhip g. Alfo it is faid h, that if a founder of an eleemofynary foundation appoints a vifitor, and limits his jurifdiction by rules and ftatutes, if the vifitor in his fentence exceeds thofe rules, an action lies againft him ; but it is otherwife, where he miftakes in a thing within his power.
IV. WE come now, in the laft place, to confider how corporations may be diffolved. Any particular member may be diffranchifed, or lofe his place in the corporation , by acting contrary to the laws of the fociety, or the laws of the land ; or he may refign it by his own voluntary act i. But eh body politic may alfo itfelf be diffolved in feveral ways ; which diffolution is the civil death of the corporation : and in this café their lands and tenements fhall revert to the perfon, or his heirs, who granted them to the corporation ; for the law doth annex a condition to every fuch grant, that if the corporation be diffolved, the grantor fhall have the lands again, becaufe the caufe of the grant faileth k. The grant is indeed only during the life of the corporation; which may endure for ever : but, when that life is determined by the diffolution of the body politic, the grantor takes it back by reverfion, as in the café of every other grant for life. And hence it appears how injurious as well to private as public rights, thofe ftatutes were, which vefted in king Henry VIII., inftead of the heirs of the founder, the lands of the diffolved monafteries. The debts of a corporation, either to or from it, are totally extinguifhed by it's diffolution ; fo that the members thereof cannot recover, or be charged with them, in their natual capacities l : agreeable to that maxim of the civil law m, “fi quid univerfitati “debetur, fingulis non debetur ; nec, quod debet univerfitas, finguli “debent.”
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g Stra. 797.
h 2 Lutw. 1566.
I 11 Rep. 98 .
k Co. Litt. 13.
l 1 Lev. 237.
m Ff. 3. 3. 7.
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A CORPO-
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Ch. 18.
A CORPORATION may be diffolved, 1. By act of parliament, which is boundlefs in it's operations ; 2. By the natural death of all it's members, in café of an aggregate corporation ; 3. By furrender of it's franchifes into the hands of the king, which is a kind of fuicide ; 4. By forfeiture of it's charter, through negligence or abufe of it's franchifes ; in which café the law judges that the body politic has broken the condition upon which it was incorporated, and thereupon the incorporation is void. And the regular courfe is to bring a writ of quo warranto, to enquire by what warrant the members now exercife their corporate power, having forfeited it by fuch and fuch proceedings. The exertion of this act of law, for the purpofes of the ftate, in the reigns of king Charles and king James the fecond, particularly by feifing the charter of the city of London, gave great and juft offence ; though perhaps, in ftrictnefs of law, the proceedings were fufficiently regular : but now n it is enacted, that the charter of the city of London fhall never more be forfeited for any caufe whatfoever. And, becaufe by the common law corporations were diffolved, in café the mayor or head officer was not duly elected on the day appointed in the charter or eftablifhed by prefcription, it is now provided o, that for the future no corporation fhall be diffolved upon that account ; and ample directions are given for appointing a new officer, in café there be no election, or a void one, made upon the charter or prefcriptive day.
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n Stat. 2 W. & M. c. 8.
o Stat. 11 Geo. I. c. 4.
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THE END OF THE FIRST BOOK.
M m m