footnote marker missing in original.]]
[Footnote k: 8 Rep. 114.]
[Footnote l: 14 & 15 Hen. VIII. c. 5.]
[Footnote m: Stat. 5 & 6 W. & M. c. 20.]
[Footnote n: Stat. 23 Geo. II. c. 4.]
[Footnote o: See page 263.]
ALL the other methods therefore whereby corporations exist, by common
law, by prescription, and by act of parliament, are for the most 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, incorporamus_," or the like. Nay it is
held, that if the king grants to a set of men to have _gildam
mercatoriam_, a mercantile meeting or assembly[p], this is alone
sufficient to incorporate and establish them for ever[q].
[Footnote p: _Gild_ signified among the Saxons a fraternity, derived
from the verb [Anglo-Saxon: gildan] to pay, because every man paid his
share towards the expenses of the community. And hence their place of
meeting is frequently called the _Gild-hall_.]
[Footnote q: 10 Rep. 30. 1 Roll. Abr. 513.]
THE parliament, we observed, by it's absolute and transcendent
authority, may perform this, or any other act whatsoever: and actually
did perform it to a great extent, by statute 39 Eliz. c. 5. which
incorporated all hospitals and houses of correction founded by
charitable persons, without farther trouble: and the same has been
done in other cases of charitable foundations. But otherwise it is not
usual thus to intrench upon the prerogative of the crown, and the king
may prevent it when he pleases. And, in the particular instance
before-mentioned, it was done, as sir Edward Coke observes[r], to
avoid the charges of incorporation and licences of mortmain in small
benefactions; which in his days were grown so great, that it
discouraged many men to undertake these pious and charitable works.
[Footnote r: 2 Inst. 722.]
THE king may grant to a subject the power of erecting corporations[s],
though the contrary was formerly held[t]: that is, he may permit the
subject to name the persons and powers of the corporation at his
pleasure; but it is really the king that erects, and the subject is
but the instrument: for though none but the king can make a
corporation, yet _qui facit per alium, facit per se_[v]. In this
manner the chancellor of the university of Oxford has power by charter
to erect corporations; and has actually often exerted it, in the
erection of several matriculated companies, now subsisting, of
tradesmen subservient to the students.
[Footnote s: Bro. _Abr. tit. Prerog._ 53. Viner. _Prerog._ 88. pl.
16.]
[Footnote t: Yearbook, 2 Hen. VII. 13.]
[Footnote v: 10 Rep. 33.]
WHEN a corporation is erected, a name must be given it; and by that
name alone it must sue, and be sued, and do all legal acts; though a
very minute variation therein is not material[u]. Such name is the
very being of it's constitution; 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, says sir Edward Coke, is as
a proper name, or name of baptism; and therefore when a private
founder gives his college or hospital a name, he does it only as
godfather; and by that same name the king baptizes the incorporation[x].
[Footnote u: 10 Rep. 122. [Transcriber's Note: Footnotes v and u are
in this order in the original.]]
[Footnote w: Gilb. Hist. C.P. 182.]
[Footnote x: 10 Rep. 28.]
II. AFTER a corporation is so formed and named, it acquires many
powers, rights, capacities, and incapacities, which we are next to
consider. Some of these are necessarily and inseparably incident to
every corporation; which incidents, as soon as a corporation is duly
erected, are tacitly annexed of course[y]. As, 1. To have perpetual
succession. This is the very end of it's incorporation: for there
cannot be a succession for ever without an incorporation[z]; and
therefore all aggregate corporations have a power necessarily implied
of electing members in the room of such as go off[a]. 2. To sue or be
sued, implead or be impleaded, grant or receive, by it's corporate
name, and do all other acts as natural persons may. 3. To purchase
lands, and hold them, for the benefit of themselves and their
successors: which two are consequential to the former. 4. To have a
common seal. For a corporation, being an invisible body, cannot
manifest it's intentions by any personal act or oral discourse: it
therefore acts and speaks only by it's common seal. For, though the
particular members may express their private consents to any act, by
words, or signing their names, yet this does not bind the corporation:
it is the fixing of the seal, and that only, which unites the several
assents of the individuals, who compose the community, and makes one
joint assent of the whole[b]. 5. To make by-laws or private statutes
for the better government of the corporation; which are binding upon
themselves, unless contrary to the laws of the land, and then they are
void. This is also included by law in the very act of incorporation[c]:
for, as natural reason is given to the natural body for the governing
it, so by-laws or statutes are a sort of political reason to govern
the body politic. 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, unless they be approved by the
chancellor, treasurer, and chief justices, or the judges of assise in
their circuits[e]. These five powers are inseparably incident to every
corporation, at least to every corporation _aggregate_: for two of
them, though they may be practised, yet are very unnecessary to a
corporation _sole_; viz. to have a corporate seal to testify his sole
assent, and to make statutes for the regulation of his own conduct.
[Footnote y: 10 Rep. 30. Hob. 211.]
[Footnote z: 10 Rep. 26.]
[Footnote a: 1 Roll. Abr. 514.]
[Footnote b: Dav. 44. 48.]
[Footnote c: Hob. 211.]
[Footnote d: _Sodales legem quam volent, dum ne quid ex publica lege
corrumpant, sibi ferunto._]
[Footnote e: Stat. 19 Hen. VII. c. 7.]
THERE are also certain privileges and disabilities that attend an
aggregate corporation, and are not applicable to such as are sole; the
reason of them ceasing, and of course the law. It must always appear
by attorney; for it cannot appear in person, being, as sir Edward Coke
says[f], invisible, and existing only in intendment and consideration
of law. It can neither maintain, or be made defendant to, an action of
battery or such like personal injuries; for a corporation can neither
beat, nor be beaten, in it's body politic[g]. A corporation cannot
commit treason, or felony, or other crime, in it's corporate
capacity[h]: though it's members may, in their distinct individual
capacities. Neither is it capable of suffering a traitor's, or felon's
punishment, for it is not liable to corporal penalties, nor to
attainder, forfeiture, or corruption of blood[i]. It cannot be
executor or administrator, or perform any personal duties; for it
cannot take an oath for the due execution of the office. It cannot be
a trustee; for such kind of confidence is foreign to the ends of it's
institution: neither can it be compelled to perform such trust,
because it cannot be committed to prison[k]; for it's existence being
ideal, no man can apprehend or arrest it. And therefore also it cannot
be outlawed; for outlawry always supposes a precedent right of
arresting, which has been defeated by the parties absconding, and that
also a corporation cannot do: for which reasons the proceedings to
compel a corporation to appear to any suit by attorney are always by
distress on their lands and goods[l]. Neither can a corporation be
excommunicated; for it has no soul, as is gravely observed by sir
Edward Coke[m]: and therefore also it is not liable to be summoned
into the ecclesiastical courts upon any account; for those courts act
only _pro salute animae_, and their sentences can only be inforced by
spiritual censures: a consideration, which, carried to it's full
extent, would alone demonstrate the impropriety of these courts
interfering in any temporal rights whatsoever.
[Footnote f: 10 Rep. 32.]
[Footnote g: Bro. _Abr. tit. Corporation._ 63.]
[Footnote h: 10 Rep. 32.]
[Footnote i: The civil law also ordains that, in any misbehaviour of a
body corporate, the directors only shall be answerable in their
personal capacity, and not the corporation. _Ff._ 4. 3. 15.]
[Footnote k: Plowd. 538.]
[Footnote l: Bro. _Abr. tit. Corporation._ 11. _Outlawry._ 72.]
[Footnote m: 10 Rep. 32.]
THERE are also other incidents and powers, which belong to some sort
of corporations, and not to others. An aggregate corporation may take
goods and chattels for the benefit of themselves and their successors,
but a sole corporation cannot[n]: for such moveable property is liable
to be lost or imbezzled, and would raise a multitude of disputes
between the successor and executor; which the law is careful to avoid.
In ecclesiastical and eleemosynary foundations, the king or the
founder may give them rules, laws, statutes, and ordinances, which
they are bound to observe: but corporations merely lay, constituted
for civil purposes, are subject to no particular statutes; but to the
common law, and to their own by-laws, not contrary to the laws of the
realm[o]. Aggregate corporations also, that have by their constitution
a head, as a dean, warden, master, or the like, cannot do any acts
during the vacancy of the headship, except only appointing another:
neither are they then capable of receiving a grant; for such
corporation is incomplete without a head[p]. But there may be a
corporation aggregate constituted without a head[q]: as the
collegiate church of Southwell in Nottinghamshire, which consists only
of prebendaries; and the governors of the Charter-house, London, who
have no president or superior, but are all of equal authority. In
aggregate corporations also, the act of the major part is esteemed the
act of the whole[r]. By the civil law this major part must have
consisted of two thirds of the whole; else no act could be
performed[s]: which perhaps may be one reason why they required three
at least to make a corporation. But, with us, _any_ majority is
sufficient to determine the act of the whole body. And whereas,
notwithstanding the law stood thus, some founders of corporations had
made statutes in derogation of the common law, making very frequently
the unanimous assent of the society to be necessary to any corporate
act; (which king Henry VIII found to be a great obstruction to his
projected scheme of obtaining a surrender of the lands of
ecclesiastical corporations) it was therefore enacted by statute 33
Hen. VIII. c. 27. that all private statutes shall 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 obstructed by any one
or more, being the minority: but this statute extends not to any
negative or necessary voice, given by the founder to the head of any
such society.
[Footnote n: Co. Litt. 46.]
[Footnote o: Lord Raym. 8.]
[Footnote p: Co. Litt. 263, 264.]
[Footnote q: 10 Rep. 30.]
[Footnote r: Bro. _Abr. tit. Corporation._ 31, 34.]
[Footnote s: _Ff._ 3. 4. 3.]
WE before observed that it was incident to every corporation, to have
a capacity to purchase lands for themselves and successors: and this
is regularly true at the common law[t]. But they are excepted out of
the statute of wills[u]; so that no devise of lands to a corporation
by will is good: except for charitable uses, by statute 43 Eliz. c.
4[w]. And also, by a great variety of statutes[x], their privilege
even of purchasing from any living grantor is greatly abridged; so
that now a corporation, either ecclesiastical or lay, must have a
licence from the king to purchase[y], before they can exert that
capacity which is vested in them by the common law: nor is even this
in all cases sufficient. These statutes are generally called the
statutes of _mortmain_; all purchases made by corporate bodies being
said to be purchases in mortmain, _in mortua manu_: for the reason of
which appellation sir Edward Coke[z] offers many conjectures; but
there is one which seems more probable than any that he has given us:
viz. that these purchases being usually made by ecclesiastical bodies,
the members of which (being professed) were reckoned dead persons in
law, land therefore, holden by them, might with great propriety be
said to be held _in mortua manu_.
[Footnote t: 10 Rep. 30.]
[Footnote u: 34 Hen. VIII. c. 5.]
[Footnote w: Hob. 136.]
[Footnote x: From _magna carta_, 9 Hen. III. c. 36. to 9 Geo. II. c.
36.]
[Footnote y: By the civil law a corporation was incapable of taking
lands, unless by special privilege from the emperor: _collegium, si
nullo speciali privilegio subnixum fit, haereditatem capere non posse,
dubium non est_. _Cod._ 6. 24. 8.]
[Footnote z: 1 Inst. 2.]
I SHALL defer the more particular exposition of these statutes of
mortmain, till the next book of these commentaries, when we shall
consider the nature and tenures of estates; and also the exposition of
those disabling statutes of queen Elizabeth, which restrain spiritual
and eleemosynary corporations from aliening such lands as they are
present in legal possession of: only mentioning them in this place,
for the sake of regularity, as statutable incapacities incident and
relative to corporations.
THE general _duties_ of all bodies politic, considered in their
corporate capacity, may, like those of natural persons, be reduced to
this single one; that of acting up to the end or design, whatever it
be, for which they were created by their founder.
III. I PROCEED therefore next to enquire, how these corporations may
be _visited_. For corporations being composed of individuals, subject
to human frailties, are liable, as well as private persons, to deviate
from the end of their institution. And for that reason the law has
provided proper persons to visit, enquire into, and correct all
irregularities that arise in such corporations, either sole or
aggregate, and whether ecclesiastical, civil, or eleemosynary. With
regard to all ecclesiastical corporations, the ordinary is their
visitor, so constituted by the canon law, and from thence derived to
us. The pope formerly, and now the king, as supreme ordinary, is the
visitor of the arch-bishop or metropolitan; the metropolitan has the
charge and coercion of all his suffragan bishops; and the bishops in
their several dioceses are the visitors of all deans and chapters, of
all parsons and vicars, and of all other spiritual corporations. With
respect to all lay corporations, the founder, his heirs, or assigns,
are the visitors, whether the foundation be civil or eleemosynary; for
in a lay incorporation the ordinary neither can nor ought to visit[a].
[Footnote a: 10 Rep. 31.]
I KNOW it is generally said, that civil corporations are subject to no
visitation, but merely to the common law of the land; and this shall
be presently explained. But first, as I have laid it down as a rule
that the founder, his heirs, or assigns, are the visitors of all
lay-corporations, let us enquire what is meant by the _founder_. The
founder of all corporations in the strictest and original sense is the
king alone, for he only can incorporate a society: and in civil
incorporations, such as mayor and commonalty, &c, where there are no
possessions or endowments given to the body, there is no other founder
but the king: but in eleemosynary foundations, such as colleges and
hospitals, where there is an endowment of lands, the law
distinguishes, and makes two species of foundation; the one _fundatio
incipiens_, or the incorporation, in which sense the king is the
general founder of all colleges and hospitals; the other _fundatio
perficiens_, or the dotation of it, in which sense the first gift of
the revenues is the foundation, and he who gives them is in law the
founder: and it is in this last sense that we generally call a man the
founder of a college or hospital[b]. But here the king has his
prerogative: for, if the king and a private man join in endowing an
eleemosynary foundation, the king alone shall be the founder of it.
And, in general, the king being the sole founder of all civil
corporations, and the endower the perficient founder of all
eleemosynary ones, the right of visitation of the former results,
according to the rule laid down, to the king; and of the latter, to
the patron or endower.
[Footnote b: 10 Rep. 33.]
THE king being thus constituted by law the visitor of all civil
corporations, the law has also appointed the place, wherein he shall
exercise this jurisdiction: which is the court of king's bench; where,
and where only, all misbehaviours of this kind of corporations are
enquired into and redressed, and all their controversies decided. And
this is what I understand to be the meaning of our lawyers, when they
say that these civil corporations are liable to no visitation; that
is, that the law having by immemorial usage appointed them to be
visited and inspected by the king their founder, in his majesty's
court of king's bench, according to the rules of the common law, they
ought not to be visited elsewhere, or by any other authority. And this
is so strictly true, that though the king by his letters patent had
subjected the college of physicians to the visitation of four very
respectable persons, the lord chancellor, the two chief justices, and
the chief baron; though the college had accepted this charter with all
possible marks of acquiescence, and had acted under it for near a
century; yet, in 1753, the authority of this provision coming in
dispute, on an appeal preferred to these supposed visitors, they
directed the legality of their own appointment to be argued: and, as
this college was a mere civil, and not an eleemosynary foundation,
they at length determined, upon several days solemn debate, that they
had no jurisdiction as visitors; and remitted the appellant (if
aggrieved) to his regular remedy in his majesty's court of king's
bench.
AS to eleemosynary corporations, by the dotation the founder and his
heirs are of common right the legal visitors, to see that that
property is rightly employed, which would otherwise have descended to
the visitor himself: but, if the founder has appointed and assigned
any other person to be visitor, then his assignee so appointed is
invested with all the founder's power, in exclusion of his heir.
Eleemosynary corporations are chiefly hospitals, or colleges in the
university. These were all of them considered by the popish clergy, as
of mere ecclesiastical jurisdiction: however, the law of the land
judged otherwise; and, with regard to hospitals, it has long been
held[c], that if the hospital be spiritual, the bishop shall visit;
but if lay, the patron. This right of lay patrons was indeed abridged
by statute 2 Hen. V. c. 1. which ordained, that the ordinary should
visit _all_ hospitals founded by subjects; though the king's right was
reserved, to visit by his commissioners such as were of royal
foundation. But the subject's right was in part restored by statute 14
Eliz. c. 5. which directs the bishop to visit such hospitals only,
where no visitor is appointed by the founders thereof: and all the
hospitals founded by virtue of the statute 39 Eliz. c. 5. are to be
visited by such persons as shall be nominated by the respective
founders. But still, if the founder appoints nobody, the bishop of the
diocese must visit[d].
[Footnote c: Yearbook, 8 Edw. III. 28. 8 Aff. 29.]
[Footnote d: 2 Inst. 725.]
COLLEGES in the universities (whatever the common law may now, or
might formerly, judge) were certainly considered by the popish clergy,
under whose direction they were, as _ecclesiastical_, or at least as
_clerical_, corporations; and therefore the right of visitation was
claimed by the ordinary of the diocese. This is evident, because in
many of our most ancient colleges, where the founder had a mind to
subject them to a visitor of his own nomination, he obtained for that
purpose a papal bulle to exempt them from the jurisdiction of the
ordinary; several of which are still preserved in the archives of the
respective societies. And I have reason to believe, that in one of our
colleges, (wherein the bishop of that diocese, in which Oxford was
formerly comprized, has immemorially exercised visitatorial authority)
there is no special visitor appointed by the college statutes: so that
the bishop's interposition can be ascribed to nothing else, but his
supposed title as ordinary to visit this, among other ecclesiastical
foundations. And it is not impossible, that the number of colleges in
Cambridge, which are visited by the bishop of Ely, may in part be
derived from the same original.
BUT, whatever might be formerly the opinion of the clergy, it is now
held as established common law, that colleges are lay-corporations,
though sometimes totally composed of ecclesiastical persons; and that
the right of visitation does not arise from any principles of the
canon law, but of necessity was created by the common law[e]. And yet
the power and jurisdiction of visitors in colleges was left so much in
the dark at common law, that the whole doctrine was very unsettled
till king William's time; in the sixth year of whose reign, the famous
case of _Philips and Bury_ happened[f]. In this the main question was,
whether the sentence of the bishop of Exeter, who (as visitor) had
deprived doctor Bury the rector of Exeter college, could be examined
and redressed by the court of king's bench. And the three puisne
judges were of opinion, that it might be reviewed, for that the
visitor's jurisdiction could not exclude the common law; and
accordingly judgment was given in that court. But the lord chief
justice, Holt, was of a contrary opinion; and held, that by the common
law the office of visitor is to judge according to the statutes of the
college, and to expel and deprive upon just occasions, and to hear all
appeals of course; and that from him, and him only, the party grieved
ought to have redress; the founder having reposed in him so entire a
confidence, that he will administer justice impartially, that his
determinations are final, and examinable in no other court whatsoever.
And, upon this, a writ of error being brought in the house of lords,
they reversed the judgment of the court of king's bench, and concurred
in sir John Holt's opinion. And to this leading case all subsequent
determinations have been conformable. But, where the visitor is under
a temporary disability, there the court of king's bench will
interpose, to prevent a defect of justice. Thus the bishop of Chester
is visitor of Manchester college: but, happening also to be warden,
the court held that his power was suspended during the union of those
offices; and therefore issued a peremptory _mandamus_ to him, as
warden, to admit a person intitled to a chaplainship[g]. Also it is
said[h], that if a founder of an eleemosynary foundation appoints a
visitor, and limits his jurisdiction by rules and statutes, if the
visitor in his sentence exceeds those rules, an action lies against
him; but it is otherwise, where he mistakes in a thing within his
power.
[Footnote e: Lord Raym. 8.]
[Footnote f: Lord Raym. 5. 4 Mod. 106. Shower. 35. Skinn. 407. Salk.
403. Carthew. 180.]
[Footnote g: Stra. 797.]
[Footnote h: 2 Lutw. 1566.]