Because of its interest, this passage on corporations is thrown up for discussion. For many of the founding fathers and their countrymen, this would have been the full extent of their training and knowledge about the topic of corporations. I have done some light editing to make skipping over the footnotes and following the main text much easier on the eyes.
Monday
1. What are bodies politic, bodies corporate, or corporations; and for what purpose are they constituted?
2. What is the first division of corporations?
3. How are these incorporations again divided?
4. Of what two sorts are lay corporations?
Tuesday
5. What is absolutely necessary to the erection of a corporation?
6. In what sort of corporations is the King's implied consent to be found?
7. What are the two methods by which the King's express consent is given?
8. What is necessary to the very being of a corporation?
9. What are the five powers incident to all corporations?
Wednesday
10. What are those privileges and disabilities that attend aggregate corporations, and are not applicable to such as are sole?
11. May either kind of corporation take goods and chattels for the benefit of themselves and there successors?
12. Who have the right to give laws to ecclesiastical and eleemosynary foundations?
13. What acts can aggregate corporations, that have their constitution a head, do, during the vacancy of the headship?
14. In aggregate corporations, what determines the act of the whole body; and what is enacted by statue 33 Hen. VIII. c. 27, as to any private statues made by founders of corporations in derogation of the common law, in this particular?
15. How do the statutes of mortmain affect corporations?
Thursday
16. What is the general duty of corporations?
17. How is this duty enforced?
18. Who is the visitor of ecclesiastical corporations?
19. Who is the visitor of lay corporations?
20. What does the law mean by the distinction of fundatio incipiens, and fundatio perficiens; and why is the King the visitor of all lay civil corporations, and the endower the visitor of all lay eleemosynary ones?
21. Where shall the King exercise this his jurisdiction?
22. May there not be another visitor of lay eleemosynary corporations than the founder?
23. What has been long held as to the visitation of hospitals, spiritual and lay; what does the statute 14 Eliz. c. 5. direct on the subject; and by whom are all the hospitals founded by statute 39 Eliz. c. 5. to be visited?
Friday
24. Are colleges lay or ecclesiastical corporations?
25. To whom do the lands and tenements of a corporation revert, upon its dissolution?
26. What becomes of the corporation's debts, upon its dissolution?
27. By what four methods may a corporation be dissolved?
28. What is an information in nature of a writ of quo warranto; and when may it be brought?
29. What is enacted as to the franchises of the city of London?
30. What is provided against the dissolution of corporations?
CHAPTER THE EIGHTEENTH.
OF CORPORATIONS.[1]
1. What are bodies politic, bodies corporate, or corporations; and for what purpose are they constituted?
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 were a mere voluntary assembly, the indivi-
[1. By the repeal of all British statutes, V. L. Edi. 1794, c. 147, it would seem that the law respecting corporations, in Virginia, stands upon the foundation of the common law, only; except as their powers are limited, or enlarged, by special acts of the general assembly.]
duals 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]
2. What is the first division of corporations?
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
[a] Ff. l. 3. t. 4. per tot. c Ff. 3, 4. 7.
[b] Ff. 50, 16, 8. d Co. Litt. 43.
of the parish, were vested in the then parson by the bounty of the donor, as a temporal recompense 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.
3. How are these incorporations again divided?
4. Of what two sorts are lay corporations?
Another division of incorporations, 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 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 knowledge; and the society of antiquaries, 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.
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; pro-
[e Such as at Manchester, Eton, Winchester, &c.] [f 1 Lord Raym. 6.]
vided 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.
But, with us in England, the king's consent is absolutely necessary to the erection of any corporation, either impliedly or expressly given.[h] 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;[2] 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 prescrip
[g Ff. 47, 22, 1. Neque societas, neque collegium, neque hujusmodi corpus passim omnibus habere conceditur; nam et legibus, et senatus consultus, et principalibus constitutionibus, ea res coercetur. Ff. 3, 4, 1.]
[h Cities and towns were first erected into corporate communities on the continent, and endowed with many valuable privileges, about the eleventh century: (Roberts. Cha. V. i. 30.) to which the consent of the feodal sovereign was absolutely necessary, as many of his prerogatives and revenues were thereby considerably diminished.]
[2. No corporation hath been created in Virginia, since the revolution but by an act of the legislature. Their several powers and privileges must therefore depend wholly upon the acts of assembly by which they were first established, or such as have been afterwards made for the special purpose of limiting or enlarging, their privileges, respectively.]
tion, such as the city of London, and many others j 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 (till of late years) 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 was usually performed by the king alone, in virtue of his royal prerogative.[o]
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]
[j 2 Inst. 330.]
[k 8 Rep. 114.]
[m Stat. 5 & 6 W. & M. c. 20.]
[o See page 272.]
[i 10 Rep. 29. 1 Roll. Abr. 512. l 14 & 15 Hen. VIII, c. 5.] [n Stat. 23 Geo. II, c. 4.]
[p Gild signified among the Saxons a fraternity, derived from the verb 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 Guild or Guild hall.]
this is alone sufficient to incorporate and establish them for ever.[q]
The parliament, we observed, by its 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 has not formerly been usual thus to intrench upon the prerogative of the crown, and the king may prevent it if 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 they discouraged many men from undertaking these pious and charitable works.
The king (it is said) may grant to a subject the power of erecting corporations,[8] 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 subjects is but the instrument: for though none but the king can make a corporation, yet qui facit per alium, facit per se.[u] 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.
When a corporation is erected, a name must be given to 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.[uu] Such name is the very being of it's constitution; and, though
[q 10 Rep. 30. 1 Roll. Abr. 513.] [r 2 Inst. 722.] [s Bro. Abr. tit. Prerog. 53. Viner. Prerog. 88. pl. 16.] [t Yearbook, 2 Hen. VIII, 13.] [u 10 Rep. 33.] [uu 10 Rep. 122.]
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 a godfather; and by that same name the king baptizes the incorporation.[x]
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 sta
[w Gilb. Hist. C. P. 182.] [y Ibid. 30, Hob. 211.] [a 1 Roll. Abr. 514.] [c Hob. 211.]
[x 10 Rep. 28.] [z 10 Rep. 26.] [b Dav. 44, 48.]
tutes 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, under penalty of 40l. unless they be approved by the chancellor, treasurer, and chief justices, or the judges of assise in their circuits: and even, though they be so approved, still, if contrary to law, they are void.[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.
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 other members may, in their distinct individual capacities.[i] Neither is it capable of suffering a traitor's or felon's punishment, for it is not liable to corporate penalties, nor to attainder, forfeiture, or corruption of blood. It cannot be executor or administrator, or perform any personal duties; for it cannot take an
[d Sodales legem quam volent; dum ne quid ex publica lege corrumpant, sibi ferunto.]
[e Stat. 19 Hen. VII, c. 7. 11 Rep. 54.]
[f 10 Rep. 32.]
[g Bro. Abr. tit. Corporation. 60.]
[h 10 Rep. 32.]
[i The civil law also ordains that, for the misbehaviour of a body corporate, the directors only shall be answerable in their personal capacities. Ff. 4, 3, 15.]
oath for the due execution of the office. It cannot be seised of lands to the use of another;[j] for such kind of confidence is foreign to the end of it's institution. Neither can it 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.
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, can
[j Bro. Abr. tit. Feoffm, al use. 40. Bacon of Uses, 347.]
[k Plowd. 538.]
[l Bro. Abr. tit. Corporation. 11. Outlawry, 72.]
[m 10 Rep. 32. n Co. Litt. 46.]
[o Lord Raym. 8.]
not 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 1: 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: 8 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. [2]
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] [3] so that no devise of
[p Co. Litt. 263, 264.]
[r Bro. Abr. tit. Corporation, 31, 34.]
[t 10 Rep. 30.]
[q 10 Rep. 30. s Ff. 3, 4, 3. u 34 Hen. VIII, c. 5.]
[(2) This statute is not in force in Virginia. L. V. 1794, c. 147.]
[3. Corporations are not excepted out of the statute of wills in Virginia, nor do they appear ever to have been so excepted. See V. L. 1748, c. 3. 1785, c. 61. 1794, c. 92.]
lands to a corporation by will is good; except for charitable uses, by statute 43 Eliz. c. 4: [w] which exception is again greatly narrowed by the statute 9 Geo. II. c. 36. And also, by a great variety of statutes,[x] their privilege even of purchasing from any living grantor is much 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.
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 at present in legal possession of; only mentioning them in this place, for the sake of regularity, as statutable incapacities incident and relative to corporations. [4]
The general duties of all bodies politic, considered in their corporate capacity, may, like those of natural persons, be re-
[w Hob. 136.]
[x From magna carta, 9 Hen. III, c. 36, to 9 Geo. II, c. 36.] [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 sit, haereditatem capere non posse, dubium, non est. Cod. 6, 24, 8.] [z 1 Inst. 2.]
[4. These statutes were all repealed in 1792. V. L. Edi. 1794, C. 147.]
duced 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 inquire, 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, inquire 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 archbishop or metropolitan; the metropolitan has the charge and coercion of all his suffragan bishops; and the bishops, in their several dioceses, are in ecclesiastical matters the visitors of all deans and chapters, of all parsons and vicars, 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
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 inquire 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 hut 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 foun
[a 10 Rep. 31.]
der 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.
The king being thus constituted by law 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.c 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 into dispute, on an appeal preferred to these supposed
[b 10 Rep. 33.]
[c This notion is perhaps too refined. The court of king's bench, (it may be said) from it's general superintendent authority where other jurisdictions are deficient, has power to regulate all corporations where no special visitor is appointed. But not in the light of visitor; for, as it's judgments are liable to he reversed by writs of error, it may be thought to want one of the essential marks of visitatorial power.]
visitors, they directed the legality of their own appointment to be argued: and as this college was merely a 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 such property is rightly employed, as might 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 vested with all the founder's power, in exclusion of his heir. Eleemosynary corporations are chiefly hospitals, or colleges in the universities. 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,d 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.e
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 antient colleges, where
[d Yearbook, 8 Edw. III, 28. 8 Ass. 29.] [e 2 Inst, 725.]
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 in some of our colleges, where no special visitor is appointed, the bishop of that diocese, in which Oxford was formerly comprised, has immemorially exercised visitatorial authority; which 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 cannon law, but of necessity was created by the common law.f 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 the famous case of Phillips and Bury.[g] 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
[f Lord Raym. 8.]
[g Lord Raym. 5. 4 Mod. 106. Show. 35. Skinn. 407. Salk. 403, Carthew. 180.]
court whatsoever. And, upon this, a writ of error being brought into the house of lords, they concurred in sir John Holt's opinion, and reversed the judgment of the court of king's bench. To which 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. [h] Also it is said,i 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.[5]
IV. We come now, in the last place, to consider how corporations may be dissolved. Any particular member may be
[h Stra. 797. i 2 Lutw. 1566.]
[5. In October 1787, Mr. Bracken, formerly, professor of humanity in the college of William and Mary, whose office had been discontinued by the visitors of the college, in the year 1779, applied to the general court for a mandamus to restore him to his office; the case was adjourned into the court of appeals for difficulty;]
it was argued at two terms successively, and in November, 1790, the mandamus was denied on the merits: which (according to the president of the court of appeals) was inserted for two purposes. First, to shew the case had been fully entered into, as if the papers had been before the court on the return of the mandamus. Secondly, to meet an obligation warmly insisted upon, that the general court had no power to intermeddle with the affairs of the college, upon the English precedents, applying to private donations for colleges; but which some of the judges, at least, (of whom he was one) thought did not apply to our college, which had a public, and not a private foundation.
The right of the visitors to change the arrangements of schools, made by the original statutes, and to discontinue the grammar school, was considered by the court as unquestionable. And in a suit against the college for his salary as master of the grammar school, from the period that such arrangement was made, by statute, the whole of the case being found at large in a special verdict, judgment was rendered first in the district court, and finally in the court of appeals in favour of the college. 1 Call's Reports, 164.
disfranchised, or lose his place in the corporation, by acting contrary to the laws of the society, or the laws of the land: or he may resign it by his own voluntary act.[k] But the body politic may also itself be dissolved in several ways; which dissolution is the civil death of the corporation: and in this case their lands and tenements shall revert to the person, or his heirs, who granted them to the corporation: for the law doth annex a condition to every such grant, that if the corporation be dissolved, the grantor shall have the lands again, because the cause of the grant faileth.[l] The grant is indeed only during the life of the corporation; which may endure for ever: but, when that life is determined by the dissolution of the body politic, the grantor takes it back by reversion, as in the case of every other grant for life. The debts of a corporation, either to or from it, are totally extinguished by it's dissolution; so that the members thereof cannot recover, or be charged with them, in their natural capacities: m agreeable to that maxim of the civil law,[n] "si quid universitati debetur, singulis non debetur; nec, quod debet universitas, singuli debent."
A corporation may be dissolved, 1. By act of parliament, which is boundless in it's operations. 2. By the natural death of all it's members, in case of an aggregate corporation. 3. By surrendering of it's franchises into the hands of the king, which is a kind of suicide. 4. By forfeiture of it's charter, through negligence or abuse of it's franchises; in which case the law judges that the body politic has broken the condition upon which it was incorporated, and thereupon the corporation is void. And the regular course is to bring an information in nature of a writ of quo warranto, to inquire by what warrant the members now exercise their corporate power, having forfeited it by such and such proceedings. The exertion of this act of law, for the purposes of the state, in the reigns of king Charles and king James the second, particularly by seising the charter of the city of London, gave great and just offence; though perhaps, in strictness of law, the proceedings in most of them were suffici-
[k 11 Rep. 98. m 1 Lev. 237.]
[1 Co. Litt. 13. n Ff. 3, 4, 7.]
ently regular: but the judgment against that of London was reversed by act of parliament o after the revolution; and by the same statute it is enacted, that the franchises of the city of London shall never more be forfeited for any cause whatsoever. And, because by the common law corporations were dissolved, in case the mayor or head officer was not duly elected on the day appointed in the charter established by prescription, it is now provided,[p] that for the future no corporation shall be dissolved upon that account; and ample directions are given for appointing a new officer, in case there be no election, or a void one, made upon the prescriptive or charter day.
[o Stat. 2 W. and M. c. 8.] [p Stat. 11 Geo. I, c. 4.]
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