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.
(corpora corporata) or corporations: of which there is a
great variety subsisting, for the advancement of religion, of learning,
and of commerce; in order to preserve entire and for ever
those rights and immunities, which, if they were granted only
to those individuals of which the body corporate is composed,
would upon their death be utterly lost and extinct. To shew the
advantages of these incorporations, let us consider the case of a
college in either of our universities, founded ad studendum et orandum,
for the encouragement and support of religion and learning.
If this was a mere voluntary assembly, the individuals which compose
it might indeed read, pray, study, and perform scholastic
exercises together, so long as they could agree to do so: but they
could neither frame, nor receive, any laws or rules of their conduct;
none at least, which would have any binding force, for
want of a coercive power to create a sufficient obligation. Neither
could they be capable of retaining any privileges or immunities:
for, if such privileges be attacked, which of all this unconnected
assembly has the right, or ability, to defend them?
And, when they are dispersed by death or otherwise, how shall
they transfer these advantages to another set of students, equally
unconnected as themselves? So also, with regard to holding estates
or other property, if land be granted for the purposes of religion
or learning to twenty individuals not incorporated, there is no
legal way of continuing the property to any other persons for the
same purposes, but by endless conveyances from one to the other,
as often as the hands are changed. But, when they are consolidated
and united into a corporation, they and their successors are
then considered as one person in law: as one person, they have
one will, which is collected from the sense of the majority of the
individuals: this one will may establish rules and orders for the
regulation of the whole, which are a sort of municipal laws of
this little republic; or rules and statutes may be prescribed to it
at it's creation, which are then in the place of natural laws: the
privileges and immunities, the estates and possessions, of the corporation,
when once vested in them, will be for ever vested,
without any new conveyance to new successions; for all the individual
members that have existed from the foundation to the present
time, or that shall ever hereafter exist, are but one person in
law, a person that never dies: in like manner as the river Thames
is still the same river, though the parts which compose it are
changing every instant.
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]."
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.
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 churchyard,
the parsonage house, the glebe, and the tithes of the parish,
were vested in the then parson by the bounty of the donor,
as a temporal recompence to him for his spiritual care of the inhabitants,
and with intent that the same emoluments should ever
afterwards continue as a recompense for the same care. But how
was this to be effected? The freehold was vested in the parson;
and, if we suppose it vested in his natural capacity, on his death
it might descend to his heir, and would be liable to his debts and
incumbrances: or, at best, the heir might be compellable, at
some trouble and expense, to convey these rights to the succeeding
incumbent. The law therefore has wisely ordained, that the
parson, quatenus parson, shall never die, any more than the king;
by making him and his successors a corporation. By which means
all the original rights of the parsonage are preserved entire to the
successor: for the present incumbent, and his predecessor who
lived seven centuries ago, are in law one and the same person;
and what was given to the one was given to the other also.
is into ecclesiastical and lay. Ecclesiastical corporations are where
the members that compose it are entirely spiritual persons; such
as bishops; certain deans, and prebendaries; all archdeacons,
parsons, and vicars; which are sole corporations: deans and
chapters at present, and formerly prior and convent, abbot and
monks, and the like, bodies aggregate. These are erected for the
furtherance of religion, and the perpetuating the rights of the
church. Lay corporations are of two sorts, civil and eleemosynary.
The civil are such as are erected for a variety of temporal purposes.
The king, for instance, is made a corporation to prevent in
general the possibility of an interregnum or vacancy of the throne,
and to preserve the possessions of the crown entire; for, immediately
upon the demise of one king, his successor is, as we have
formerly seen, in full possession of the regal rights and dignity.
Other lay corporations are erected for the good government of a
town or particular district, as a mayor and commonalty, bailiff
and burgesses, or the like: some for the advancement and regulation
of manufactures and commerce; as the trading companies
of London, and other towns: and some for the better carrying
on of divers special purposes; as churchwardens, for conservation
of the goods of the parish; the college of physicians and company
of surgeons in London, for the improvement of the medical
science; the royal society, for the advancement of natural
knowlege; and the society of antiquarians, for promoting the
study of antiquities. And among these I am inclined to think the
general corporate bodies of the universities of Oxford and Cambridge
must be ranked: for it is clear they are not spiritual or
ecclesiastical corporations, being composed of more laymen than
clergy: neither are they eleemosynary foundations, though stipends
are annexed to particular magistrates and professors, any
more than other corporations where the acting officers have standing
salaries; for these are rewards pro opera et labore, not charitable
donations only, since every stipend is preceded by service and
duty: they seem therefore to be merely civil corporations. The
eleemosynary sort are such as are constituted for the perpetual distribution
of the free alms, or bounty, of the founder of them
to such persons as he has directed. Of this kind are all hospitals
for the maintenance of the poor, sick, and impotent; and all
colleges, both in our universities and out[e] of them: which colleges
are founded for two purposes; 1. For the promotion of piety
and learning by proper regulations and ordinances. 2. For imparting
assistance to the members of those bodies, in order to
enable them to prosecute their devotion and studies with greater
ease and assiduity. And all these eleemosynary corporations are,
strictly speaking, lay and not ecclesiastical, even though composed
of ecclesiastical persons[f], and although they in some things
partake of the nature, privileges, and restrictions of ecclesiastical
bodies.
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.
created by the mere act, and voluntary association of their members;
provided such convention was not contrary to law, for then
it was illicitum collegium[g]. It does not appear that the prince's
consent was necessary to be actually given to the foundation of
them; but merely that the original founders of these voluntary
and friendly societies (for they were little more than such) should
not establish any meetings in opposition to the laws of the state.
to the erection of any corporation, either impliedly or expressly
given. The king's implied consent is to be found in corporations
which exist by force of the common law, to which our
former kings are supposed to have given their concurrence; common
law being nothing else but custom, arising from the universal
agreement of the whole community. Of this sort are the
king himself, all bishops, parsons, vicars, churchwardens, and
some others; who by common law have ever been held (as far as
our books can shew us) to have been corporations, virtute officii:
and this incorporation is so inseparably annexed to their offices,
that we cannot frame a complete legal idea of any of these persons,
but we must also have an idea of a corporation, capable to
transmit his rights to his successors, at the same time. Another
method of implication, whereby the king's consent is presumed,
is as to all corporations by prescription, such as the city of London,
and many others[h], which have existed as corporations, time
whereof the memory of man runneth not to the contrary; and
therefore are looked upon in law to be well created. For though
the members thereof can shew no legal charter of incorporation,
yet in cases of such high antiquity the law presumes there once
was one; and that by the variety of accidents, which a length of
time may produce, the charter is lost or destroyed. The methods,
by which the king's consent is expressly given, are either by act
of parliament or charter. By act of parliament, of which the
royal assent is a necessary ingredient, corporations may undoubtedly
be created[i]: but it is observable, that most of those statutes,
which are usually cited as having created corporations, do either
confirm such as have been before created by the king; as in the
case of the college of physicians, erected by charter 10 Hen. VIII[k],
which charter was afterwards confirmed in parliament[l]; or, they
permit the king to erect a corporation in futuro with such and
such powers; as is the case of the bank of England[m], and the
society of the British fishery[n]. So that the immediate creative act
is usually performed by the king alone, in virtue of his royal
prerogative[o].
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].
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.
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.
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].
End of section 47
