Commentaries on the Laws of England Part 44

[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 const.i.tuted 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 a.s.sistance to the members of those bodies, in order to enable them to prosecute their devotion and studies with greater ease and a.s.siduity. 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 a.s.sociation 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 pa.s.sim omnibus habere conceditur; nam et legibus, et senatus consultis, et princ.i.p.alibus const.i.tutionibus 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 a.s.sent 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.]

[Footnote i: 10 Rep. 29. 1 Roll. Abr. 512. [Transcriber's Note: 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 a.s.sembly[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 c.o.ke 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. t.i.t. 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 const.i.tution; 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 c.o.ke, 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 G.o.dfather; 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 a.s.sents of the individuals, who compose the community, and makes one joint a.s.sent 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 a.s.sise 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 a.s.sent, 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 c.o.ke 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 inst.i.tution: 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 c.o.ke[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. t.i.t. 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. t.i.t. 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 mult.i.tude 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, const.i.tuted 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 const.i.tution 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 const.i.tuted 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 a.s.sent 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.]