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 en[*484] tire 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 into the house of lords, they concurred in Sir John Holt's opinion, and reversed the judgment of the court of king's bench. To which 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 (h). Also it is said (i), 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 (15).

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 (k) (16). 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

(h) Stra. 797.
(i) 2 Lutw. 1566.

(15) No particular form of words is neces sary for the appointment of a visitor. Sit visitator, or visitationem commendamus, will create a general visitor, and confer all the authority incidental to the office; (1 Burr. 199,) but this general power may be restrain ed and qualified, or the visitor may be directed by the statutes to do particular acts, in which instances he has no discretion as visitor: as where the statutes direct the visitor to appoint one of two persons, nominated by the fellows, the master of a college; the court of king's bench will examine the nomination of the fel lows, and if correct, will compel the visitor to appoint one of the two. 2 T. R. 290. New ingrafted fellowships, if no statutes are given by the founders of them, must follow the original foundation, and are subject to the same discipline and judicature. 1 Burr. 203. It is the duty of the visitor, in every instance, to effectuate the intention of the founder, as far as he can collect it from the statutes and the nature of the institution and in the exercise of this jurisdiction, he is free from all controul. Lord Mansfield has declared, that "the visitatorial power, if properly exercised, with out expence or delay, is useful to and convenient to colleges; and it is now settled and established, that the jurisdiction of a visitor is summary, and without appeal from it." 1

Burr. 200.

(16) Every member or officer of a corporation may resign his place or office. 2 Rol. 456. 1. 10. 1 Sid. 14. Sembl. Cont. 1 Rol. 137. Pop. 134. 2 Rol. 11. And a corporation has power to take such resignation. 1 Sid. 14. A resignation by parol, if entered and accepted, is sufficient. 2 Salk. 433. Accepting another office incompatible with the other, implies a resignation. 3 Burr. 1615. If a resignation be once accepted, the party can

(k) 11 Rep. 98.

not afterwards claim to be restored. 1 Sid. 14. 2 Salk. 433.

A corporation may for good cause remove an officer from his office, 2 Stra. 819. Sir. T. Ray. 439, and this is incident to a corporation without charter or prescription, 1 Burr. 517. sed vid. 11 Co. 99. a. Style. 477. 480. 1 Lord Ray. 392. 2 Kyd. 50. &c.; a mandamus lies to compel a removal. 4 Mod. 233. If the member do any thing contrary to the duty of his place or oath he is removable, 11 Co. 99. a.; if an alderman be a common drunkard he is removable for it, 2 Rol. 455. 1. 20. Dub. 1. Rol. 409; so if he removes from the borough and refuses attendance without lawful excuse. 4 Mod. 36. Semb. Show. 259. 4 Burr. 2087. and see further 9 Co. 99. Sir T. Raym. 438. Sty. 479. From the decisions on this subject, it appears that mere nonresidence without any particular inconvenience arising to the corporation from it, and where the charter does not require it, is no cause for removal. See cases collected in 3 B. & C. 152. And a corporate office does not become ipso facto vacant by the non-residence of the corporator; a sentence must be passed. 2 T. R. 772. Where a charter does not require the members of a corporation to be resident, the court will not grant a mandamus commanding the corporation to meet and consider of the propriety of removing from their offices non-resident corporators, unless their absence has been productive of some serious inconvenience. 3 B. & C. 152. Where the charter of a borough directed that when any of the capital burgesses should happen to die or dwell out of the borough or be removed, it should be lawful for the remainder to elect others in the place of those so happening to die or be removed, omitting the intermediate circumstance of dwelling out of the borough,

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 (1).69 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

(1) Co. Litt. 13.

(69) See Hov. n. (69), at the end of the Vol., B. I.

A

life (17). The debts of a corporation, either to or from it, are totally extinguished by its dissolution; so that the members thereof cannot recover, or be charged with them, in their natural capacities (m) (18): agreeable to that maxim of the civil law, " si quid universitati debetur, singulis non

debetur; nec, quod debet universitas, singuli debent" (n). [*485] * A corporation may be dissolved, 1. By Act of parliament,

which is boundless in its operations (19). 2. By the natural death of all its members, in case of an aggregate corporation (20). 3. By surrender of its franchises into the hands of the king, which is a kind of suicide. 4. By forfeiture of its charter, through negligence or abuse of its 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 (21). And the regular course is to bring an information in nature of a writ of quo warranto, to inquire 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 seizing the charter of the city of London, gave great and just offence; though perhaps, in strictness of law, the proceedings in most of them were sufficiently regular: but the judgment against that of London was reversed by Act of parliament (o) after the Revolution; and by the same statute it is enacted, that the franchises 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 (p), 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 prescriptive or charter day.

(m) 1 Lev. 237 (n) Ff. 3, 4, 7.

(17) But if a corporation have granted over their possessions to another before their disso lution, they do not return to the donor. 1 Rol. 816. 1. 10. 20. and vide the cases collected in Bac. Ab. Corp. J.; if lands are given to a corporate body and it is dissolved, they will revert to the donor and not escheat. 9 Mod.

226.

(18) But a debt due to a corporation still remains, though their name is changed by a new charter. 3 Lev. 238.

(19) The king cannot by his prerogative destroy a corporation. Rex v. Amley, 2 Term R. 532.

(20) But if the king makes a corporation consisting of twelve men to continue always in succession, and when any of them die the others may choose another in his place, it may be so continued. Roll. 524. Bac. Ab. tit. Corp. G. But where a corporation consists of several distinct integral parts, if one of these parts become extinct, whether by the death of the persons of whom it is composed, or by any other means, the whole corporation is dissolved. 3 Burr. 1866. When an integral part of a corporation is gone, and the corporation has no power to restore it or to do any corporate act, the corporation is so far dis solved that the crown may grant a new char

(0) Stat. 2 W. and M. c. 8.
(p) Stat. 11 Geo. I. c. 4.

ter. 3 T. R. 199. And where the major part
of an integral part of a corporation, whose at-
tendance is required at the election of officers,
being gone, it operates as a dissolution of the
whole corporation, which has thereby lost the
power of holding corporate assemblies for the
purpose of filling up vacancies and continuing
itself. 3 East, 213. And where the election
of mayor was to be made by the majority of
an assembly composed of several integral de-
finite parts of a corporation and other burgess-
es and inhabitants for the time being, it was
held that one of such definite integral parts,
being reduced below its majority of a proper
number, could no longer be represented in
such corporate assembly, and the whole cor-
poration was thereby dissolved, being no long-
er capable of continuing itself. 4 East, 17.

(21) Refusing or neglecting to choose such officers as they are obliged to do by their charter, is a ground of forfeiture. Carth. 483. sed vid. 11 Geo. I. c. 4. For a forfeiture a corporation is not dissolved without a judgment in a court of law to enforce it, and this is attained by scire facias or quo warranto. Bac. Ab. Corp. G. As to the effect of this judgment, see 2 T. R. 515. 4 T. R. 122. 2 Kyd. 496.

Bac. Ab. Corp. G.
THE END OF THE FIRST BOOK.

4

COMMENTARIES

ON

THE LAWS OF ENGLAND.

BOOK THE SECOND.

OF THE RIGHTS OF THINGS.

CHAPTER I.

OF PROPERTY, IN GENERAL.

THE former book of these Commentaries having treated at large of the jura personarum, or such rights and duties as are annexed to the persons of men, the objects of our inquiry in this second book will be the jura rerum, or those rights which a man may acquire in and to such external things as are unconnected with his person. These are what the writers in natural law style the rights of dominion, or property, concerning the nature and original of which I shall first premise a few observations, before I proceed to distribute and consider its several objects.

*There is nothing which so generally strikes the imagination, [*2] and engages the affections of mankind, as the right of property; or that sole and despotic dominion which one man claims and exercises over the external things of the world, in total exclusion of the right of any other individual in the universe. And yet there are very few that will give themselves the trouble to consider the original and foundation of this right. Pleased as we are with the possession, we seem afraid to look back to the means by which it was acquired, as if fearful of some defect in our title; or at best we rest satisfied with the decision of the laws in our favour, without examining the reason or authority upon which those laws have been built. We think it enough that our title is derived by the grant of the former proprietor, by descent from our ancestors, or by the last will and testament of the dying owner; not caring to reflect that (accurately and strictly speaking) there is no foundation in nature or in natural law, why a set of words upon parchment should convey the dominion of land; why the son should have a right to exclude his fellow-creatures from a determinate spot of ground, because his father had done so before him: or why the occupier of a particular field or of a jewel, when lying on his death-bed, and no longer able to maintain possession, should be entitled to tell the rest of the world which of them should enjoy it after him. These inquiries, it must be owned, would be useless and even troublesome in common life. It is well if the mass of mankind will obey the laws when made, without scrutinizing too nicely into the reason for making VOL. I.

56

them. But, when law is to be considered not only as a matter of practice, but also as a rational science, it cannot be improper or useless to examine more deeply the rudiments and grounds of these positive constitutions of society.

In the beginning of the world, we are informed by holy writ, the allbountiful Creator gave to man "dominion over all the earth; and over the

fish of the sea, and over the fowl of the air, and over every living [*3] thing that moveth *upon the earth (a)." This is the only true and

solid foundation of man's dominion over external things, whatever airy metaphysical notions may have been started by fanciful writers upon this subject. The earth, therefore, and all things therein, are the general property of all mankind, exclusive of other beings, from the immediate gift of the Creator. And, while the earth continued bare of inhabitants, it is reasonable to suppose that all was in common among them, and that every one took from the public stock to his own use such things as his immediate necessities required.

These general notions of property were then sufficient to answer all the purposes of human life; and might perhaps still have answered them had it been possible for mankind to have remained in a state of primeval simplicity: as may be collected from the manners of many American nations when first discovered by the Europeans; and from the ancient method of living among the first Europeans themselves, if we may credit either the memorials of them preserved in the golden age of the poets, or the uniform accounts given by historians of these times, wherein "erant omnia communia et indivisa omnibus, veluti unum cunctis patrimonium esset" (b). Not that this communion of goods seems ever to have been applicable, even in the earliest stages, to ought but the substance of the thing; nor could it be extended to the use of it. For, by the law of nature and reason, he, who first began to use it, acquired therein a kind of transient property, that lasted so long as he was using it, and no longer (c): or, to speak with greater precision, the right of possession continued for the same time only that the act of possession lasted. Thus the ground was in common, and no part of it was the permanent property of any man in particular; yet whoever was in the occupation of any determined spot of it, for rest, for shade, or the like, acquired for the time a sort of ownership, from which

it would have been unjust, and contrary to the law of nature, to [*4] have driven him by force: but the instant that he *quitted the

use or occupation of it, another might seize it, without injustice. Thus also a vine or other tree might be said to be in common, as all men were equally entitled to its produce; and yet any private individual might gain the sole property of the fruit, which he had gathered for his own repast. A doctrine well illustrated by Cicero, who compares the world to a great theatre, which is common to the public, and yet the place which any man has taken is for the time his own (d).

But when mankind increased in number, craft, and ambition, it became necessary to entertain conceptions of more permanent dominion; and to appropriate to individuals not the immediate use only, but the very substance of the thing to be used. Otherwise innumerable tumults must have arisen, and the good order of the world be continually broken and disturbed, while a variety of persons were striving who should get the first occupa

(a) Gen. i. 28.
(b) Justin. 1. 43, с. 1

(c) Barbeyr. Puff. 1. 4, c. 4.

(d) Quemadmodum theatrum, cum commune sit, recte tamen dici potest, ejus esse eum locum quem quisque occuparit. De Fin. 1. 3, с. 20.