nature_: viz. the father and (in some cases) the mother of the child.
For, if an estate be left to an infant, the father is by common law
the guardian, and must account to his child for the profits[b]. And,
with regard to daughters, it seems by construction of the statute 4 &
5 Ph. & Mar. c. 8. that the father might by deed or will assign a
guardian to any woman-child under the age of sixteen, and if none be
so assigned, the mother shall in this case be guardian[c]. There are
also guardians _for nurture_[d], which are, of course, the father or
mother, till the infant attains the age of fourteen years[e]: and, in
default of father or mother, the ordinary usually assigns some
discreet person to take care of the infant's personal estate, and to
provide for his maintenance and education[f]. Next are guardians _in
socage_, (an appellation which will be fully explained in the second
book of these commentaries) who are also called guardians _by the
common law_. These take place only when the minor is entitled to some
estate in lands, and then by the common law the guardianship devolves
upon his next of kin, to whom the inheritance cannot possibly descend;
as, where the estate descended from his father, in this case his uncle
by the mother's side cannot possibly inherit this estate, and
therefore shall be the guardian[g]. For the law judges it improper to
trust the person of an infant in his hands, who may by possibility
become heir to him; that there may be no temptation, nor even
suspicion of temptation, for him to abuse his trust[h]. The Roman laws
proceed on a quite contrary principle, committing the care of the
minor to him who is the next to succeed to the inheritance, presuming
that the next heir would take the best care of an estate, to which he
has a prospect of succeeding: and this they boast to be "_summa
providentia_[i]." But in the mean time they forget, how much it is
the guardian's interest to remove the incumbrance of his pupil's life
from that estate, for which he is supposed to have so great a
regard[k]. And this affords Fortescue[l], and sir Edward Coke[m], an
ample opportunity for triumph; they affirming, that to commit the
custody of an infant to him that is next in succession, is "_quasi
agnum committere lupo, ad devorandum_[n]." These guardians in socage,
like those for nurture, continue only till the minor is fourteen years
of age; for then, in both cases, he is presumed to have discretion, so
far as to choose his own guardian. This he may do, unless one be
appointed by father, by virtue of the statute 12 Car. II. c. 24.
which, considering the imbecillity of judgment in children of the age
of fourteen, and the abolition of guardianship _in chivalry_ (which
lasted till the age of twenty one, and of which we shall speak
hereafter) enacts, that any father, under age or of full age, may by
deed or will dispose of the custody of his child, either born or
unborn, to any person, except a popish recusant, either in possession
or reversion, till such child attains the age of one and twenty years.
These are called guardians _by statute_, or _testamentary_ guardians.
There are also special guardians _by custom_ of London, and other
places[o]; but they are particular exceptions, and do not fall under
the general law.
[Footnote b: Co. Litt. 88.]
[Footnote c: 3 Rep. 39.]
[Footnote d: Co. Litt. 88.]
[Footnote e: Moor. 738. 3 Rep. 38.]
[Footnote f: 2 Jones 90. 2 Lev. 163.]
[Footnote g: Litt. Sec. 123.]
[Footnote h: _Nunquam custodia alicujus de jure alicui remanet, de quo
habeatur suspicio, quod possit vel velit aliquod jus in ipsa
hereditate clamare._ Glanv. _l._ 7. _c._ 11.]
[Footnote i: _Ff._ 26. 4. 1.]
[Footnote k: The Roman satyrist was fully aware of this danger, when
he puts this private prayer into the mouth of a selfish guardian;
_Pupillum o utinam, quem proximus haeres
Impello, expungam._ Perf. 1. 12.]
[Footnote l: _c._ 44.]
[Footnote m: 1 Inst. 88.]
[Footnote n: This policy of our English law is warranted by the wise
institutions of Solon, who provided that no one should be another's
guardian, who was to enjoy the estate after his death. (Potter's
Antiqu. l. 1. c. 26.) And Charondas, another of the Grecian
legislators, directed that the inheritance should go to the father's
relations, but the education of the child to the mother's; that the
guardianship and right of succession might always be kept distinct.
(Petit. _Leg. Att._ _l._ 6. _t._ 7.)]
[Footnote o: Co. Litt. 88.]
THE power and reciprocal duty of a guardian and ward are the same,
_pro tempore_, as that of a father and child; and therefore I shall
not repeat them: but shall only add, that the guardian, when the ward
comes of age, is bound to give him an account of all that he has
transacted on his behalf, and must answer for all losses by his wilful
default or negligence. In order therefore to prevent disagreeable
contests with young gentlemen, it has become a practice for many
guardians, of large estates especially, to indemnify themselves by
applying to the court of chancery, acting under it's direction, and
accounting annually before the officers of that court. For the lord
chancellor is, by right derived from the crown, the general and
supreme guardian of all infants, as well as idiots and lunatics; that
is, of all such persons as have not discretion enough to manage their
own concerns. In case therefore any guardian abuses his trust, the
court will check and punish him; nay sometimes proceed to the removal
of him, and appoint another in his stead[p].
[Footnote p: 1 Sid. 424. 1 P. Will. 703.]
2. LET us next consider the ward, or person within age, for whose
assistance and support these guardians are constituted by law; or who
it is, that is said to be within age. The ages of male and female are
different for different purposes. A male at _twelve_ years old may
take the oath of allegiance; at _fourteen_ is at years of discretion,
and therefore may consent or disagree to marriage, may choose his
guardian, and, if his discretion be actually proved, may make his
testament of his personal estate; at _seventeen_ may be an executor;
and at _twenty one_ is at his own disposal, and may aliene his lands,
goods, and chattels. A female also at _seven_ years of age may be
betrothed or given in marriage; at _nine_ is entitled to dower; at
_twelve_ is at years of maturity, and therefore may consent or
disagree to marriage, and, if proved to have sufficient discretion,
may bequeath her personal estate; at _fourteen_ is at years of legal
discretion, and may choose a guardian; at _seventeen_ may be
executrix; and at _twenty one_ may dispose of herself and her lands.
So that full age in male or female, is twenty one years, which age is
completed on the day preceding the anniversary of a person's birth[q];
who till that time is an infant, and so stiled in law. Among the
antient Greeks and Romans _women_ were never of age, but subject to
perpetual guardianship[r], unless when married, "_nisi convenissent in
manum viri_:" and, when that perpetual tutelage wore away in process
of time, we find that, in females as well as males, full age was not
till twenty five years[s]. Thus, by the constitutions of different
kingdoms, this period, which is merely arbitrary, and _juris
positivi_, is fixed at different times. Scotland agrees with England
in this point; (both probably copying from the old Saxon constitutions
on the continent, which extended the age of minority "_ad annum
vigesimum primum, et eo usque juvenes sub tutelam reponunt_[t]") but
in Naples they are of full age at _eighteen_; in France, with regard
to marriage, not till _thirty_; and in Holland at _twenty five_.
[Footnote q: Salk. 44. 625.]
[Footnote r: Pott. Antiq. l. 4. c. 11. Cic. _pro Muren._ 12.]
[Footnote s: _Inst._ 1. 23. 1.]
[Footnote t: Stiernhook _de jure Sueonum._ _l._ 2. _c._ 2. This is
also the period when the king, as well as the subject, arrives at full
age in modern Sweden. Mod. Un. Hist. xxxiii. 220.]
3. INFANTS have various privileges, and various disabilities: but
their very disabilities are privileges; in order to secure them from
hurting themselves by their own improvident acts. An infant cannot be
sued but under the protection, and joining the name, of his guardian;
for he is to defend him against all attacks as well by law as
otherwise[u]: but he may sue either by his guardian, or _prochein
amy_, his next friend who is not his guardian. This _prochein amy_ may
be any person who will undertake the infant's cause; and it frequently
happens, that an infant, by his _prochein amy_, institutes a suit in
equity against a fraudulent guardian. In criminal cases, an infant of
the age of _fourteen_ years may be capitally punished for any capital
offence[w]: but under the age of _seven_ he cannot. The period between
_seven_ and _fourteen_ is subject to much incertainty: for the infant
shall, generally speaking, be judged _prima facie_ innocent; yet if he
was _doli capax_, and could discern between good and evil at the time
of the offence committed, he may be convicted and undergo judgment and
execution of death, though he hath not attained to years of puberty
or discretion[x]. And sir Matthew Hale gives us two instances, one of
a girl of thirteen, who was burned for killing her mistress; another
of a boy still younger, that had killed his companion, and hid
himself, who was hanged; for it appeared by his hiding that he knew he
had done wrong, and could discern between good and evil; and in such
cases the maxim of law is, that _malitia supplet aetatem_.
[Footnote u: Co. Litt. 135.]
[Footnote w: 1 Hal. P.C. 25.]
[Footnote x: 1 Hal. P.C. 26.]
WITH regard to estates and civil property, an infant hath many
privileges, which will be better understood when we come to treat more
particularly of those matters: but this may be said in general, that
an infant shall lose nothing by non-claim, or neglect of demanding his
right; nor shall any other _laches_ or negligence be imputed to an
infant, except in some very particular cases.
IT is generally true, that an infant can neither aliene his lands, nor
do any legal act, nor make a deed, nor indeed any manner of contract,
that will bind him. But still to all these rules there are some
exceptions; part of which were just now mentioned in reckoning up the
different capacities which they assume at different ages: and there
are others, a few of which it may not be improper to recite, as a
general specimen of the whole. And, first, it is true, that infants
cannot aliene their estates: but[y] infant trustees, or mortgagees,
are enabled to convey, under the direction of the court of chancery or
exchequer, the estates they hold in trust or mortgage, to such person
as the court shall appoint. Also it is generally true, that an infant
can do no legal act: yet an infant who has an advowson, may present to
the benefice when it becomes void[z]. For the law in this case
dispenses with one rule, in order to maintain others of far greater
consequence: it permits an infant to present a clerk (who, if unfit,
may be rejected by the bishop) rather than either suffer the church to
be unserved till he comes of age, or permit the infant to be debarred
of his right by lapse to the bishop. An infant may also purchase
lands, but his purchase is incomplete: for, when he comes to age, he
may either agree or disagree to it, as he thinks prudent or proper,
without alleging any reason; and so may his heirs after him, if he
dies without having completed his agreement[a]. It is, farther,
generally true, that an infant, under twenty one, can make no deed
that is of any force or effect: yet[b] he may bind himself apprentice
by deed indented, or indentures, for seven years; and[c] he may by
deed or will appoint a guardian to his children, if he has any.
Lastly, it is generally true, that an infant can make no other
contract that will bind him: yet he may bind himself to pay for his
necessary meat, drink, apparel, physic, and such other necessaries;
and likewise for his good teaching and instruction, whereby he may
profit himself afterwards[d]. And thus much, at present, for the
privileges and disabilities of infants.
[Footnote y: Stat. 7 Ann. c. 19.]
[Footnote z: Co. Litt. 172.]
[Footnote a: Co. Litt. 2.]
[Footnote b: Stat. 5 Eliz. c. 4.]
[Footnote c: Stat. 12 Car. II. c. 24.]
[Footnote d: Co. Litt. 172.]
CHAPTER THE EIGHTEENTH.
OF CORPORATIONS.
WE have hitherto considered persons in their natural capacities, and
have treated of their rights and duties. But, as all personal rights
die with the person; and, as the necessary forms of investing a series
of individuals, one after another, with the same identical rights,
would be very inconvenient, if not impracticable; it has been found
necessary, when it is for the advantage of the public to have any
particular rights kept on foot and continued, to constitute artificial
persons, who may maintain a perpetual succession, and enjoy a kind of
legal immortality.
THESE artificial persons are called bodies politic, bodies corporate,
(_corpora corporata_) or corporations: of which there is a great
variety subsisting, for the advancement of religion, of learning, and
of commerce; in order to preserve entire and for ever those rights and
immunities, which, if they were granted only to those individuals of
which the body corporate is composed, would upon their death be
utterly lost and extinct. To shew the advantages of these
incorporations, let us consider the case of a college in either of our
universities, founded _ad studendum et orandum_, for the encouragement
and support of religion and learning. If this was a mere voluntary
assembly, the individuals which compose it might indeed read, pray,
study, and perform scholastic exercises together, so long as they
could agree to do so: but they could neither frame, nor receive, any
laws or rules of their conduct; none at least, which would have any
binding force, for want of a coercive power to create a sufficient
obligation. Neither could they be capable of retaining any privileges
or immunities: for, if such privileges be attacked, which of all this
unconnected assembly has the right, or ability, to defend them? And,
when they are dispersed by death or otherwise, how shall they transfer
these advantages to another set of students, equally unconnected as
themselves? So also, with regard to holding estates or other property,
if land be granted for the purposes of religion or learning to twenty
individuals not incorporated, there is no legal way of continuing the
property to any other persons for the same purposes, but by endless
conveyances from one to the other, as often as the hands are changed.
But, when they are consolidated and united into a corporation, they
and their successors are then considered as one person in law: as one
person, they have one will, which is collected from the sense of the
majority of the individuals: this one will may establish rules and
orders for the regulation of the whole, which are a sort of municipal
laws of this little republic; or rules and statutes may be prescribed
to it at it's creation, which are then in the place of natural laws:
the privileges and immunities, the estates and possessions, of the
corporation, when once vested in them, will be for ever vested,
without any new conveyance to new successions; for all the individual
members that have existed from the foundation to the present time, or
that shall ever hereafter exist, are but one person in law, a person
that never dies: in like manner as the river Thames is still the same
river, though the parts which compose it are changing every instant.
THE honour of originally inventing these political constitutions
entirely belongs to the Romans. They were introduced, as Plutarch
says, by Numa; who finding, upon his accession, the city torn to
pieces by the two rival factions of Sabines, and Romans, thought it a
prudent and politic measure, to subdivide these two into many smaller
ones, by instituting separate societies of every manual trade and
profession. They were afterwards much considered by the civil law[a],
in which they were called _universitates_, as forming one whole out of
many individuals; or _collegia_, from being gathered together: they
were adopted also by the canon law, for the maintenance of
ecclesiastical discipline; and from them our spiritual corporations
are derived. But our laws have considerably refined and improved upon
the invention, according to the usual genius of the English nation:
particularly with regard to sole corporations, consisting of one
person 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 consisting of three persons, be reduced to
one, "_si universitas ad unum redit_," it may still subsist as a
corporation, "_et stet nomen universitatis_[c]."
[Footnote a: _Ff._ _l._ 3. _t._ 4. _per tot._]
[Footnote b: _Ff._ 50. 16. 85.]
[Footnote c: _Ff._ 3. 4. 7.]
BEFORE we proceed to treat of the several incidents of corporations,
as regarded by the laws of England, let us first take a view of the
several sorts of them; and then we shall be better enabled to
apprehend their respective qualities.
THE first division of corporations is into _aggregate_ and _sole_.
Corporations aggregate consist of many persons united together into
one society, and are kept up by a perpetual succession of members, so
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 sole consist of one person only and his
successors, in some particular station, who are incorporated by law,
in order to give them some legal capacities and advantages,
particularly that of perpetuity, which in their natural persons they
could not have had. In this sense the king is a sole corporation[d]:
so is a bishop: so are some deans, and prebendaries, distinct from
their several chapters: and so is every parson and vicar. And the
necessity, or at least use, of this institution will be very apparent,
if we consider the case of a parson of a church. At the original
endowment of parish churches, the freehold of the church, the
church-yard, the parsonage house, the glebe, and the tithes of the
parish, were vested in the then parson by the bounty of the donor, as
a temporal recompence to him for his spiritual care of the
inhabitants, and with intent that the same emoluments should ever
afterwards continue as a recompense for the same care. But how was
this to be effected? The freehold was vested in the parson; and, if we
suppose it vested in his natural capacity, on his death it might
descend to his heir, and would be liable to his debts and
incumbrances: or, at best, the heir might be compellable, at some
trouble and expense, to convey these rights to the succeeding
incumbent. The law therefore has wisely ordained, that the parson,
_quatenus_ parson, shall never die, any more than the king; by making
him and his successors a corporation. By which means all the original
rights of the parsonage are preserved entire to the successor: for the
present incumbent, and his predecessor who lived seven centuries ago,
are in law one and the same person; and what was given to the one was
given to the other also.
[Footnote d: Co. Litt. 43.]
ANOTHER division of corporations, either sole or aggregate, is into
_ecclesiastical_ and _lay_. Ecclesiastical corporations are where the
members that compose it are entirely spiritual persons; such as
bishops; certain deans, and prebendaries; all archdeacons, parsons,
and vicars; which are sole corporations: deans and chapters at
present, and formerly prior and convent, abbot and monks, and the
like, bodies aggregate. These are erected for the furtherance of
religion, and the perpetuating the rights of the church. Lay
corporations are of two sorts, _civil_ and _eleemosynary_. The civil
are such as are erected for a variety of temporal purposes. The king,
for instance, is made a corporation to prevent in general the
possibility of an _interregnum_ or vacancy of the throne, and to
preserve the possessions of the crown entire; for, immediately upon
the demise of one king, his successor is, as we have formerly seen, in
full possession of the regal rights and dignity. Other lay
corporations are erected for the good government of a town or
particular district, as a mayor and commonalty, bailiff and burgesses,
or the like: some for the advancement and regulation of manufactures
and commerce; as the trading companies of London, and other towns: and
some for the better carrying on of divers special purposes; as
churchwardens, for conservation of the goods of the parish; the
college of physicians and company of surgeons in London, for the
improvement of the medical science; the royal society, for the
advancement of natural knowlege; and the society of antiquarians, for
promoting the study of antiquities. And among these I am inclined to
think the general corporate bodies of the universities of Oxford and
Cambridge must be ranked: for it is clear they are not spiritual or
ecclesiastical corporations, being composed of more laymen than
clergy: neither are they eleemosynary foundations, though stipends are
annexed to particular magistrates and professors, any more than other
corporations where the acting officers have standing salaries; for
these are rewards _pro opera et labore_, not charitable donations
only, since every stipend is preceded by service and duty: they seem
therefore to be merely civil corporations. The eleemosynary sort are
such as are constituted for the perpetual distribution of the free
alms, or bounty, of the founder of them to such persons as he has
directed. Of this kind are all hospitals for the maintenance of the
poor, sick, and impotent; and all colleges, both _in_ our universities
and _out_[e] of them: which colleges are founded for two purposes; 1.
For the promotion of piety and learning by proper regulations and
ordinances. 2. For imparting assistance to the members of those
bodies, in order to enable them to prosecute their devotion and
studies with greater ease and assiduity. And all these eleemosynary
corporations are, strictly speaking, lay and not ecclesiastical, even
though composed of ecclesiastical persons[f], and although they in
some things partake of the nature, privileges, and restrictions of
ecclesiastical bodies.
[Footnote e: Such as at Manchester, Eton, Winchester, &c.]
[Footnote f: 1 Lord Raym. 6.]
HAVING thus marshalled the several species of corporations, let us
next proceed to consider, 1. How corporations, in general, may be
created. 2. What are their powers, capacities, and incapacities. 3.
How corporations are visited. And 4. How they may be dissolved.
I. CORPORATIONS, by the civil law, seem to have been created by the
mere act, and voluntary association of their members; provided such
convention was not contrary to law, for then it was _illicitum
collegium_[g]. It does not appear that the prince's consent was
necessary to be actually given to the foundation of them; but merely
that the original founders of these voluntary and friendly societies
(for they were little more than such) should not establish any
meetings in opposition to the laws of the state.
[Footnote g: _Ff._ 47. 22. 1. _Neque societas, neque collegium, neque
hujusmodi corpus passim omnibus habere conceditur; nam et legibus, et
senatus consultis, et principalibus constitutionibus ea res
coercetur._ _Ff._ 3. 4. 1.]
BUT, with us in England, the king's consent is absolutely necessary to
the erection of any corporation, either impliedly or expressly given.
The king's implied consent is to be found in corporations which exist
by force of the _common law_, to which our former kings are supposed
to have given their concurrence; common law being nothing else but
custom, arising from the universal agreement of the whole community.
Of this sort are the king himself, all bishops, parsons, vicars,
churchwardens, and some others; who by common law have ever been held
(as far as our books can shew us) to have been corporations, _virtute
officii_: and this incorporation is so inseparably annexed to their
offices, that we cannot frame a complete legal idea of any of these
persons, but we must also have an idea of a corporation, capable to
transmit his rights to his successors, at the same time. Another
method of implication, whereby the king's consent is presumed, is as
to all corporations by _prescription_, such as the city of London, and
many others[h], which have existed as corporations, time 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
shew no legal charter of incorporation, yet in cases of such high
antiquity the law presumes there once was one; and that by the variety
of accidents, which a length of time may produce, the charter is lost
or destroyed. The methods, by which the king's consent is expressly
given, are either by act of parliament or charter. By act of
parliament, of which the royal assent is a necessary ingredient,
corporations may undoubtedly be created[i]: but it is observable, that
most of those statutes, which are usually cited as having created
corporations, do either confirm such as have been before created by
the king; as in the case of the college of physicians, 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 such and such powers; as is the case of the bank of
England[m], and the society of the British fishery[n]. So that the
immediate creative act is usually performed by the king alone, in
virtue of his royal prerogative[o].
[Footnote h: 2 Inst. 330.]