Sivut kuvina

Parliament may incor


or the king may delegate the power.

The Parliament, we observed, by its absolute and transcend ent 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 further 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 when he pleases. And, in the particular instance before mentioned, it was done, as Sir Edward Coke observes," to avoid the charges of incorporation and licenses 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,s though the contrary was formerly held ;t that is, he may permit the subject to name the persons and powers of the corporations 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." 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."

r 2 Inst., 722.

Bro. Abr., tit. Prerog., 53; Viner,
Prerog., 88, pl. 16.

to limit the individual liability of the
members of such companies (sect. 4);
and various other powers may be con-
ferred on such companies which could
not have been inserted in a royal charter
at common law. But such companies
must make certain returns as to shares,
change of officers, transfers, and other
matters mentioned in the act.

t Year-book, 2 Hen. VII., 13.
10 Rep., 33.

pacity, his ministers are subordinate servants, and take upon themselves that personal responsibility for his acts, or omis sions, which, by reason of the sacredness of his person, can not attach on himself; in the latter, he has and can have no responsible ministers, for the irresponsibility of his acts is absolute, and attaches to the character in which they are done (that of a member of the supreme pow er), and not to his person." (Ĉoleridge's Blackst., in loco.)

(10) That is, he may prevent the passing of such act by refusing his assent thereto. The right of the crown to this veto has been already noticed, supra, p. (11) So, also, the corporation of the 184, n. 84. "The constitutional notion of city of London possesses by charter the an English king," says Mr. J. Coleridge, power of establishing companies, frain his admirable note to this passage, "in- ternities, and guilds; which, however, cludes, yet keeps distinct, two charac- are subject to the general control of the ters, one as head of the executive, the civic authorities. Other corporations other as an independent member of the may also establish such fraternities if legislature. As the head of the execu- empowered so to do by their charter; tive, he is the minister of the supreme see Kyd on Corp., p. 46-49. As to the power, and can neither dispense with origin and nature of London companies, the laws nor refuse to obey them; as a see Pulling on the Laws, Customs, &c., member of the legislature, he is as free, of the Port and City of London, p. 15, absolute, and irresponsible as either of 71, &c.. the other two estates; in the former ca

a corpora

When a corporation is erected a name must be given to it, A name is and by that name alone it must sue and be sued, and do all le- essential to gal acts, though a very minute variation therein is not mate- tion. rial.▾ Such name is the very being of its constitution; and, [475] though it is the will of the king that erects the corporation, yet the name is the knot of its combination, without which it could not perform its corporate functions. 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 Capacities and incapamany powers, rights, capacities, and incapacities, which we cities of Purare next to consider.1 Some of these are necessarily and in- porations. * 10 Rep., 28.

10 Rep., 122.

w Gilb., Hist. C. P., 182.

(12) All the municipal corporations of 9, every occupier of a house or shop the United Kingdom were undoubtedly within any borough, being also resident instituted for the advancement and regu- within seven miles of such borough, and lation of trade, the local administration rated in respect of such premises to the of justice, and the better government of relief of the poor, is entitled to be on the their particular vicinities. About the burgess lists, which lists are to be anreign of Elizabeth, however, the mu- nually made out by the overseers, and nicipal and parliamentary franchises be- revised by the mayor and assessors; came in most cases united (see Hallam, which latter officers are chosen by the Con. Hist., iii., 52-53), and the great burgesses (sect. 38). By sects. 29, 30, case of corporations (10 Rep.) having, 43, the burgesses, upon the 1st of Novemabout the same time, vested the right of ber in every year, shall elect from the making by-laws in the "select bodies" persons qualified to be counselors (as to of corporations, we find these institutions which, see sect. 28) the counselors of completely perverted from their original such borough, or such part of them as intention. In short, from this period the shall be needed to supply the places of right of making by-laws, no less than those who shall go out of office, under another necessary corporate right, viz., sect. 31; which provides, that one third the right of electing corporate members part of the council shall go out of office in the room of such as go off, seem to annually. The aldermen (whose numhave been so extensively and deeply ber is one third that of the counselors) abused, that at length the "select bodies" are to be elected on the 9th of Novemdid not hesitate to alienate corporate ber in every year by the counselors out property for electioneering purposes; of their own body, or out of the persons see 2 & 3 Wm. IV., c. 69. These and qualified to be counselors, and one half other circumstances led to the Munici- of such aldermen are to go out of office pal Corporations Reform Act (5 & 6 Wm. annually (sect. 25). The mayor is also IV., c. 76), the object of which statute to be annually elected from and by the was to restore them to their original pur- counselors (sect. 49). The mayor, alderposes, and, as nearly as possible, to as men, and counselors, forming "the counsimilate their constitutions to each other; cil of the borough" (sect. 25), appoint a for their constitutions, varying, of course, town clerk, treasurer, and other officers according to their respective charters, (sect. 58), in certain cases a sheriff and were, before that act, necessarily very a coroner (sects. 61, 62), committees dissimilar. By sect. 1, all acts, charters, (sect. 70), and may make by-laws (sect. and customs inconsistent with the pro- 90). If the other corporate property be visions of that act were repealed; by insufficient to meet the corporate exsects. 2, 4, the rights of freemen in esse penses, the council may make and levy were reserved, but, by sect. 3, no free- a borough rate (sect. 92), and they may dom could be thenceforth acquired by grant leases of, and otherwise deal with, gift or purchase. By sect. 6, all corpora- the corporate property, but subject to tions are assimilated in style. By sect. the restraints imposed by the act (sects.


(2.) To sue

and be sued.

(3.) To pur

chase lands.

separably incident to every corporation; which incidents, as soon as a corporation is duly erected, are tacitly annexed of (1.) To have course.y As, 1. To have perpetual succession. This is the succession. very end of its incorporation; for there can not be a succession forever without an incorporation; 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 its 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 for(4.) To have mer.1 4. To have a common seal. For a corporation, being an invisible body, can not manifest its intention by any personal act or oral discourse; it therefore acts and speaks only by its 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 (5.) To make one joint assent of the whole.b* 5. To make by-laws or private statutes for the better government of the corporation, which are [476] binding upon themselves, unless contrary to the laws of the

a common



land, and then they are void. This is also included by law in the very act of incorporation; 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. But no trading company is, with us,

10 Rep., 30; Hob., 211. * 10 Rep., 26.

a 1 Roll. Abr., 514.

Dav., 44, 48.

94, 95, 96). The accounts are to be au-
dited by a person elected by the bur-
gesses (sect. 38). For the better admin-
istration of justice, the crown may ap-
point justices of the peace (sect. 98), sal-
aried police magistrates (sect. 99), grant
a separate Court of Quarter Sessions,
and appoint a recorder (sect. 103); see,
also, sect. 118, as to extending the juris-
diction of existing borough courts of rec-
ord, and the act makes numerous other
provisions for reforming these corpora-
tions. By sect. 141, the crown is also
empowered to grant charters of incor-
poration, containing the like powers and
provisions, upon the petition of the in-

© Hob., 211.

d Sodales legem quam volent, dum ne quid ex publica lege corrumpant, sibi ferunto.

habitant householders of any town or borough. The mode of conducting elec tions under this act has been subsequently amended by 7 Wm. IV., and 1 Vict., c. 78; the sale of church patronage facili tated by 1 & 2 Vict., c. 31; and the act otherwise explained and amended by 4 & 5 Vict., c. 48; 5 & 6 Vict., c. 104, and 6 & 7 Vict., c. 89.

(13) But unless such corporation have a license from the king, enabling them to take and hold lands in mortmain, lands given to a corporation devolve to the crown; see Co. Litt., 2; 7 & 8 Wm. III., c. 37, infra, p. 479; see, also, next note.

*This technical rule of the common law has been exploded in the U. S. A seal is no more necessary to render valid the acts or contracts of a corporation than of an individual. Where the individual is bound without seal, the corpora tion is bound.-(2 Kent's Comm., 288-291.)

allowed to make by-laws which may affect the king's prerogative, or the common profit of the people, under penalty of £40, unless they be approved by the chancellor, treasurer, and chief justices, or the judges of Assize in their circuits; and, even though they be so approved, still, if contrary to law, they are void. These five powers are inseparably incident to every corporation, at least to every corporation aggregate; for two of them, though they may be practiced, 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 Incidents peculiar to an aggregate corporation, and are not applicable to such as are aggregate sole; the reason of them ceasing, and of course the law. It must corporaalways appear by attorney; for it can not appear in person, being, as Sir Edwark Coke says,f invisible, and existing only in intendment and consideration of law. It can neither maintain, nor be made defendant to, an action of battery or such like personal injuries; for a corporation can neither beat nor be beaten in its body politic.g* A corporation can not commit treason or felony, or other crime, in its corporate capacity,h though its members may, in their distinct individual capacities.i Neither is it capable of suffering a traitor's or felon's punish- [477] ment, for it is not liable to corporeal penalties, nor to attainder, forfeiture, or corruption of blood. It can not be executor or administrator, or perform any personal duties; for it can not take an oath for the due execution of the office. It can not be seised of lands to the use of another;j for such kind of confidence is foreign to the end of its institution." Neither can it be

e Stat 19 Hen. VII., c. 7; 11 Rep., 54. f 10 Rep., 32.

Bro. Ábr., tit. Corporation, 63. 10 Rep., 32.

i The civil law also ordains that, for

(14) But a devise to a corporation, though void at law, may be good as a trust in equity; see the cases considered by the Lord Chancellor of Ireland in his luminous judgment in the case of the Incorporated Society v. Richards, 1 Dr. & War., 293-333. A corporation may also be a trustee for charitable or any other purposes, for "actual confidence in the person" is not necessary to support

the misbehavior of a body corporate,
the directors only shall be answerable
in their personal capacities.-Ff., 4, 3, 15.
j Bro. Abr., tit. Feoffin. al. Uses, 40;
Bacon on Uses, 347.

the trust; see 55 Geo. III., c. 147; 56
Geo. III., c. 52, and 1 & 2 Geo. IV., c.
92, by which statutes corporations and
other trustees, holding lands in trust for
charitable purposes, are empowered, un-
der the direction of the commissioners
appointed as in such acts directed, to
exchange such lands for others of greater
value or more conveniently situated.t

*This rule, also, may be considered as no longer recognized in the U. S. Corporations acting by their agents or servants are responsible, in like manner as individuals, for all injuries ex delicto occasioned by their agents or servants acting within the scope of their authority.-(2 Kent's Comm., 284; 6 Johns. R., 90; 7 Cowen, 485; 2 Wendell, 452; 6 Mass. R., 364; 7 Id., 787; 17 Id., 503; 4 Serg. & Rawle, 6; 9 Id., 94; 2 Aik., 255; 2 Hill's S. C. R., 573; 4 Hamm., 500; Wright, 603; 5 Miller's Lou. R., 461; 4 Wash. C. C. R., 106; 3 Peters's U. S. R., 398.)

In New York, a devise of real estate to a corporation is invalid, unless the

Other incidents of


committed to prison ;k for its existence being ideal, no man can apprehend or arrest it. And therefore, also, it can not be outlawed; for outlawry always supposes a precedent right of arresting, which has been defeated by the parties absconding, and that, also, a corporation can not 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.1 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 anime, and their sentences can only be enforced by spiritual censures; a consideration which, carried to its 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 corpo- 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 can not;n's for such movable property is liable to be lost or embezzled, 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 [478] 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. Aggregate corporations, also, that have by their constitution a head, as a dean, warden, master, or the like, can not do any acts during the vacancy of the headship,

Plowd., 558.

1 Bro. Abr., tit. Corporation, 11; Outlawry, 72.

m 10 Rep., 32.

n Co. Litt., 46.
• Lord Raym., 8.

(15) Vide infra, vol. ii., p. 430, 433.

corporation be expressly authorized by its charter or by statute to take by devise. (2 R. S., 57, § 3.) Whether the Court of Chancery in this country has jurisdiction over devises, not to, but in trust for a charitable corporation, may be considered as an unsettled question. In the case of the Orphan Asylum Society v. M Cartee, 9 Cowen, 437, it was held in Chancery that a devise of lands to executors, in trust for a charitable corporation for charitable purposes, was a legal and valid trust, to be enforced in equity. The decision was reversed in error, not, however, impugning the principle upon which it was based, but simply on the ground that, in that case, the devise to the corporation was direct, and not in trust. Chancellor Kent, in his Commentaries, discusses the question, and comes to the conclusion that the better opinion, in point of authority, is, that a devise of a charity not directly to a corporation, but in trust for charitable purposes, would be good. This, he says, is on the principle that a court of equity, independent of the statute 43 Eliz., and upon the doctrine of the common law, has jurisdiction over bequests and devises to charitable uses, and will enforce them, provided the object be sufficiently definite, so as to shut out all arbitrary discretion resting upon the doctrine of cy-près. (See 4 Kent's Comm., 508, and note a; 2 Id., 285-287.)

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