Commentaries on the Laws of England Part 45

[Footnote p: Co. Litt. 263, 264.]

[Footnote q: 10 Rep. 30.]

[Footnote r: Bro. _Abr. t.i.t. 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 c.o.ke[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 inst.i.tution. 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 const.i.tuted 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 a.s.signs, 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 a.s.signs, 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 const.i.tuted 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 a.s.signed any other person to be visitor, then his a.s.signee 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 n.o.body, 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 t.i.tle 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 int.i.tled 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.]

IV. WE come now, in the last place, to consider how corporations may be dissolved. Any particular member may be 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[i]. 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[k]. The grant is indeed only during the life of the corporation; which _may_ endure for ever: but, when that life is determined by the dissolution of the body politic, the grantor takes it back by reversion, as in the case of every other grant for life.

And hence it appears how injurious, as well to private as public rights, those statutes were, which vested in king Henry VIII, instead of the heirs of the founder, the lands of the dissolved monasteries.

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[l]: agreeable to that maxim of the civil law[m], "_si quid universitati debetur, singulis non debetur; nec, quod debet universitas, singuli debent_."

[Footnote i: 11 Rep. 98.]

[Footnote k: Co. Litt. 13.]

[Footnote l: 1 Lev. 237.]

[Footnote m: _Ff._ 3. 4. 7.]

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 surrender 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 incorporation is void. And the regular course is to bring a writ of _quo warranto_, to enquire 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 were sufficiently regular: but now[n] it is enacted, that the charter 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 or established by prescription, it is now provided[o], 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 charter or prescriptive day.

[Footnote n: Stat. 2 W. & M. c. 8.]

[Footnote o: Stat. 11 Geo. I. c. 4.]

THE END OF THE FIRST BOOK.