II.
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 contents to any act, by words,
or signing their names, yet this does not bind the corporation:
it is the fixing of the seal, and that only, which unites the several
assents of the individuals, who compose the community, and
makes one joint assent of the whole[b]. 5. To make by-laws or
private statutes for the better government of the corporation;
which are binding upon themselves, unless contrary to the laws
of the land, and then they are void. This is also included by
law in the very act of incorporation[c]: for, as natural reason is
given to the natural body for the governing it, so by-laws or statutes
are a sort of political reason to govern the body politic.
And this right of making by-laws for their own government, not
contrary to the law of the land, was allowed by the law of the
twelve tables at Rome[d]. But no trading company is, with us,
allowed to make by-laws, which may affect the king's prerogative,
or the common profit of the people, unless they be approved
by the chancellor, treasurer, and chief justices, or the judges
of assise [* ?? what word is this supposed to be? ] in their circuits[e]. These five powers are inseparably incident
to every corporation, at least to every corporation aggregate:
for two of them, though they may be practised, yet are
very unnecessary to a corporation sole; viz. to have a corporate
seal to testify his sole assent, and to make statutes for the regulation
of his own conduct.
an aggregate corporation, and are not applicable to such as are
sole; the reason of them ceasing, and of course the law. It must
always appear by attorney; for it cannot appear in person, being,
as sir Edward Coke says[f], invisible, and existing only in intendment
and consideration of law. It can neither maintain, or be
made defendant to, an action of battery or such like personal injuries;
for a corporation can neither beat, nor be beaten, in it's
body politic[g]. A corporation cannot commit treason, or felony,
or other crime, in it's corporate capacity[h]: though it's members
may, in their distinct individual capacities. Neither is it capable
of suffering a traitor's, or felon's punishment, for it is not liable
to corporal penalties, nor to attainder, forfeiture, or corruption
of blood[i]. It cannot be executor or administrator, or perform
any personal duties; for it cannot take an oath for the due execution
of the office. It cannot be a trustee; for such kind of confidence
is foreign to the ends of it's institution: neither can it be
compelled to perform such trust, because it cannot be committed
to prison[k]; for it's existence being ideal, no man can apprehend
or arrest it. And therefore also it cannot be outlawed; for outlawry
always supposes a precedent right of arresting, which has
been defeated by the parties absconding, and that also a corporation
cannot do: for which reasons the proceedings to compel a
corporation to appear to any suit by attorney are always by distress
on their lands and goods[l]. Neither can a corporation be excommunicated;
for it has no soul, as is gravely observed by sir
Edward Coke[m]: and therefore also it is not liable to be summoned
into the ecclesiastical courts upon any account; for those courts
act only pro salute animae, and their sentences can only be inforced
by spiritual censures: a consideration, which, carried to
it's full extent, would alone demonstrate the impropriety of these
courts interfering in any temporal rights whatsoever.
some sort of corporations, and not to others. An aggregate corporation
may take goods and chattels for the benefit of themselves
and their successors, but a sole corporation cannot[n]: for such
moveable property is liable to be lost or imbezzled, and would
raise a multitude of disputes between the successor and executor;
which the law is careful to avoid. In ecclesiastical and eleemosynary
foundations, the king or the founder may give them rules,
laws, statutes, and ordinances, which they are bound to observe:
but corporations merely lay, constituted for civil purposes, are
subject to no particular statutes; but to the common law, and to
their own by-laws, not contrary to the laws of the realm[o]. Aggregate
corporations also, that have by their constitution a head,
as a dean, warden, master, or the like, cannot do any acts during
the vacancy of the headship, except only appointing another:
neither are they then capable of receiving a grant; for such corporation
is incomplete without a head[p]. But there may be a cor-*
*poration aggregate constituted without a head[q]: as the collegiate
church of Southwell in Nottinghamshire, which consists only of
prebendaries; and the governors of the Charter-house, London,
who have no president or superior, but are all of equal authority.
In aggregate corporations also, the act of the major part is esteemed
the act of the whole[r]. By the civil law this major part must
have consisted of two thirds of the whole; else no act could be
performed[s]: which perhaps may be one reason why they required
three at least to make a corporation. But, with us, any majority
is sufficient to determine the act of the whole body. And whereas,
notwithstanding the law stood thus, some founders of corporations
had made statutes in derogation of the common law, making
very frequently the unanimous assent of the society to be necessary
to any corporate act; (which king Henry VIII found to be a great
obstruction to his projected scheme of obtaining a surrender of
the lands of ecclesiastical corporations) it was therefore enacted
by statute 33 Hen. VIII. c. 27. that all private statutes shall be
utterly void, whereby any grant or election, made by the head,
with the concurrence of the major part of the body, is liable
to be obstructed by any one or more, being the minority: but
this statute extends not to any negative or necessary voice, given
by the founder to the head of any such society.
to have a capacity to purchase lands for themselves and successors:
and this is regularly true at the common law[t]. But they are excepted
out of the statute of wills[u]; so that no devise of lands to a
corporation by will is good: except for charitable uses, by statute
43 Eliz. c. 4[w]. And also, by a great variety of statutes[x], their
privilege even of purchasing from any living grantor is greatly
abridged; so that now a corporation, either ecclesiastical or lay,
must have a licence from the king to purchase[y], before they can
exert that capacity which is vested in them by the common law:
nor is even this in all cases sufficient. These statutes are generally
called the statutes of mortmain; all purchases made by corporate
bodies being said to be purchases in mortmain, in mortua
manu: for the reason of which appellation sir Edward Coke[z] offers
many conjectures; but there is one which seems more probable
than any that he has given us: viz. that these purchases
being usually made by ecclesiastical bodies, the members of which
(being professed) were reckoned dead persons in law, land therefore,
holden by them, might with great propriety be said to be
held in mortua manu.
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.
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.
may be visited. For corporations being composed of individuals,
subject to human frailties, are liable, as well as private
persons, to deviate from the end of their institution. And for that
reason the law has provided proper persons to visit, enquire into,
and correct all irregularities that arise in such corporations, either
sole or aggregate, and whether ecclesiastical, civil, or eleemosynary.
With regard to all ecclesiastical corporations, the ordinary
is their visitor, so constituted by the canon law, and from thence
derived to us. The pope formerly, and now the king, as supreme
ordinary, is the visitor of the arch-bishop or metropolitan; the
metropolitan has the charge and coercion of all his suffragan bishops;
and the bishops in their several dioceses are the visitors of
all deans and chapters, of all parsons and vicars, and of all other
spiritual corporations. With respect to all lay corporations, the
founder, his heirs, or assigns, are the visitors, whether the foundation
be civil or eleemosynary; for in a lay incorporation the ordinary
neither can nor ought to visit[a].
to no visitation, but merely to the common law of the land; and
this shall be presently explained. But first, as I have laid it down
as a rule that the founder, his heirs, or assigns, are the visitors
of all lay-corporations, let us enquire what is meant by the founder.
The founder of all corporations in the strictest and original
sense is the king alone, for he only can incorporate a society:
and in civil incorporations, such as mayor and commonalty, &c,
where there are no possessions or endowments given to the body,
there is no other founder but the king: but in eleemosynary
foundations, such as colleges and hospitals, where there is an endowment
of lands, the law distinguishes, and makes two species
of foundation; the one fundatio incipiens, or the incorporation, in
which sense the king is the general founder of all colleges and
hospitals; the other fundatio perficiens, or the dotation of it, in
which sense the first gift of the revenues is the foundation, and
he who gives them is in law the founder: and it is in this last
sense that we generally call a man the founder of a college or hospital[b].
But here the king has his prerogative: for, if the king
and a private man join in endowing an eleemosynary foundation,
the king alone shall be the founder of it. And, in general, the
king being the sole founder of all civil corporations, and the en-*
*dower 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.
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.
and his heirs are of common right the legal visitors, to see that
that property is rightly employed, which would otherwise have
descended to the visitor himself: but, if the founder has appointed
and assigned any other person to be visitor, then his assignee
so appointed is invested with all the founder's power, in exclusion
of his heir. Eleemosynary corporations are chiefly hospitals, or
colleges in the university. These were all of them considered by
the popish clergy, as of mere ecclesiastical jurisdiction: however,
the law of the land judged otherwise; and, with regard to
hospitals, it has long been held[c], that if the hospital be spiritual,
the bishop shall visit; but if lay, the patron. This right of lay
patrons was indeed abridged by statute 2 Hen. V. c. 1. which ordained,
that the ordinary should visit all hospitals founded by subjects;
though the king's right was reserved, to visit by his commissioners
such as were of royal foundation. But the subject's
right was in part restored by statute 14 Eliz. c. 5. which directs
the bishop to visit such hospitals only, where no visitor is appointed
by the founders thereof: and all the hospitals founded
by virtue of the statute 39 Eliz. c. 5. are to be visited by such
persons as shall be nominated by the respective founders. But
still, if the founder appoints nobody, the bishop of the diocese
must visit[d].
may now, or might formerly, judge) were certainly considered
by the popish clergy, under whose direction they were, as ecclesiastical,
or at least as clerical, corporations; and therefore the
right of visitation was claimed by the ordinary of the diocese.
This is evident, because in many of our most ancient colleges,
where the founder had a mind to subject them to a visitor of his
own nomination, he obtained for that purpose a papal bulle to
exempt them from the jurisdiction of the ordinary; several of
which are still preserved in the archives of the respective societies.
And I have reason to believe, that in one of our colleges, (wherein
the bishop of that diocese, in which Oxford was formerly comprized,
has immemorially exercised visitatorial authority) there is
no special visitor appointed by the college statutes: so that the
bishop's interposition can be ascribed to nothing else, but his supposed
title as ordinary to visit this, among other ecclesiastical
foundations. And it is not impossible, that the number of col-*
*leges in Cambridge, which are visited by the bishop of Ely, may
in part be derived from the same original.
it is now held as established common law, that colleges are lay-*corporations,
though sometimes totally composed of ecclesiastical
persons; and that the right of visitation does not arise from any
principles of the canon law, but of necessity was created by the
common law[e]. And yet the power and jurisdiction of visitors in
colleges was left so much in the dark at common law, that the
whole doctrine was very unsettled till king William's time; in
the sixth year of whose reign, the famous case of Philips and Bury
happened[f]. In this the main question was, whether the sentence
of the bishop of Exeter, who (as visitor) had deprived doctor
Bury the rector of Exeter college, could be examined and redressed
by the court of king's bench. And the three puisne judges
were of opinion, that it might be reviewed, for that the visitor's
jurisdiction could not exclude the common law; and accordingly
judgment was given in that court. But the lord chief justice,
Holt, was of a contrary opinion; and held, that by the common
law the office of visitor is to judge according to the statutes of
the college, and to expel and deprive upon just occasions, and to
hear all appeals of course; and that from him, and him only,
the party grieved ought to have redress; the founder having reposed
in him so entire a confidence, that he will administer justice
impartially, that his determinations are final, and examinable
in no other court whatsoever. And, upon this, a writ of error
being brought in the house of lords, they reversed the judgment
of the court of king's bench, and concurred in sir John Holt's
opinion. And to this leading case all subsequent determinations
have been conformable. But, where the visitor is under a temporary
disability, there the court of king's bench will interpose, to
prevent a defect of justice. Thus the bishop of Chester is visitor
of Manchester college: but, happening also to be warden, the
court held that his power was suspended during the union of those
offices; and therefore issued a peremptory mandamus to him, as
warden, to admit a person intitled to a chaplainship[g]. Also it is
said[h], that if a founder of an eleemosynary foundation appoints
a visitor, and limits his jurisdiction by rules and statutes, if the
visitor in his sentence exceeds those rules, an action lies against
him; but it is otherwise, where he mistakes in a thing within
his power.
IV.
may be dissolved. Any particular member may be dis-*franchised,
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."
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.
End of section 48
End of the first book of the Commentaries on the Laws of England, by William Blackstone.
