Sivut kuvina



WE have hitherto confidered perfons in their natu

ral capacities, and have treated of their rights and duties. But, as all perfonal rights die with the perfon; and, as the neceffary forms of investing a series of individuals, one after another, with the fame identical rights, would be very inconvenient, if not impracticable; it has been found neceffary, when it is for the advantage of the public to have any particular rights kept on foot and continued, to conftitute artificial perfons, who may maintain a perpetual fucceffion, and enjoy a kind of legal immortality.

Thefe artificial perfons are called bodies politic, bodies corporate, (corpora corporata) or corporations; of which there is a great variety fubfifting, for the advancement of religion, of learning, and of commerce; in order to preferve entire and for ever those rights and immunities, which, if they were granted only to those individuals of which the body corporate is compofed, would upon their death be utterly loft and extinct. To fhew the advantages of these incorporations, let us confider the cafe of a college in either of our univerfities, founded ad ftudendum et orandum, for the encouragement and support of religion and learning. If this were a mere voluntary affembly, the individuals which compofe it might indeed read, pray, ftudy, and perform fcholaftic exercifes together, fo long as they could agree to do fo: but they could

neither frame, nor receive any laws or rules of their conduct; none at leaft, which would have any binding force, for want of a coercive power to create a fufficient obligation. Neither could they be capable of retaining any privileges or immunities; for, if fuch privileges be attacked, which of all this unconnected af fembly has the right, or ability, to defend them? And, when they are difperfed by death or otherwife, how fhall they transfer thefe advantages to another fet of ftudents, equally unconnected as themselves? So alfo, with regard to holding eftates 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 perfons for the fame purpofes, but by endless conveyances from one to the other, as often as the hands are changed. But when they are confolidated and united into a corporation, they and their fucceffors are then confidered as one perfon in law as one perfon, they have one will, which is collected from the fenfe of the majority of the individuals this one will may eftablish rules and orders for the regulation of the whole, which are a fort of municipal laws of this little republic; or rules and ftatutes may be prescribed to it at it's creation, which are then in the place of natural laws the privileges and immunities, the eftates and poffeffions, of the corporation, when once vested in them, will be for ever vefted, without any new conveyance to new fucceffions; for all the individual members that have exifted from the foundation to the prefent time, or that fhall ever hereafter exift, are but one perfon in law, a perfon that never dies: in like manner as the river Thames is ftill the fame river, though the parts which compofe it are changing every inftant.


The honour of originally inventing thefe political conftitutions entirely belongs to the Romans. They were introduced, as Plutarch fays, by Numa; who finding, upon his acceffion, the city torn to pieces by the two rival factions of Sabines and Romans, thought it a prudent and politic measure to fubdivide thefe two into many smaller ones, by inftituting feparate focie

ties of every manual trade and profeffion. They were afterwards much confidered by the civil law', in which they were called univerfitates, as forming one whole out of many individuals; or collegia, from being gathered together they were adopted alfo by the canon law, for the maintenance of ecclefiaftical difcipline; and from them our fpiritual corporations are derived. But our laws have confiderably refined and improved upon the invention, according to the ufual genius of the English nation: particularly with regard to fole corporations, confifting of one perfon only, of which the Roman lawyers had no notion; their maxim being that "tres faciunt collegium"." Though they held, that if a corporation, originally confifting of three perfons, be reduced to one, "fi univerfitas ad unum redit," it may still subfift as a corporation, " et flet nomen univerfitatis 3."

Before we proceed to treat of the several incidents of corporations, as regarded by the laws of England, let us firft take a view of the several forts of them; and then we shall be better enabled to apprehend their refpective qualities.

The firft divifion of corporation is into aggregate and fole. Corporations aggregate confift of many perfons united together into one fociety, and are kept up by a perpetual fucceffion of members, fo 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. Corporati ons fole confift of one perfon only and his fucceffors, in fome particular ftation, who are incorporated by law, in order to give them fome legal capacities and advantages, particularly that of perpetuity, which in their natural perfons they could not have had. In this fenfe the king is a fole corporation 4: fo is a bishop: fo are fome deans, and prebendaries, diftinct from their feveral chapters: and fo is every parfon and viAnd the neceffity, or at least use, of this inftitution will be very apparent, if we confider the case of


[ocr errors][merged small][merged small][merged small][merged small]


a parfon of a church. At the original endowment of parish churches, the freehold of the church, the church-yard, the parfonage houfe, the glebe, and the tithes of the parish, were vested in the then parfon by the bounty of the donor, as a temporal recompense to him for his fpiritual care of the inhabitants, and with intent that the fame emoluments fhould ever afterwards continue as a recompenfe for the fame care. But how was this to be effected? The freehold was vefted in the parfon; and, if we fuppofe it vefted in his natural capacity, on his death it might defcend to his heir, and would be liable to his debts and incumbrances: or, at beft, the heir might be compellable, at fome trouble and expenfe, to convey these rights to the fucceeding incumbent. The law therefore has wifely ordained, that the parfon, quatenus parfon, fhall never die, any more than the king; by making him and his fucceffors a corporation. By which means all the original rights of the parfonage are preferved entire to the fucceffor: for the present incumbent, and his predeceffor who lived feven centuries ago, are in law one and the fame perfon; and-what was given to the one was given to the other alfo.

Another divifion of incorporations, either fole or aggregate, is into ecclefiaftical and lay. Ecclefiaftical corporations are where the members that compofe it are entirely fpiritual perfons; fuch as bishops: certain deans, and prebendaries; all archdeacons, parfons, and vicars; which are fole corporations: deans and chapters at prefent, and formerly prior and convent, abbot and monks, and the like, bodies aggregate. These are erected for the furtherance of religion, and perpetuating the rights of the church. Lay corporati ons are of two forts, civil and eleemofynary. The civil are fuch as are erected for a variety of temporal purpofes. The king, for inftance, is made a corporation to prevent in general the poffibility of an interregnum or vacancy of the throne, and to preferve the poffeffions of the crown entire; for, immediately upon the demife of one king, his fucceffor is, as we have formerly feen, in full poffeffion of the legal rights and dignity. Other lay corporations are erected for the

[ocr errors]

good government of a town or particular district, as a mayor and commonalty, bailiff and burgeffes, or the like: fome for the advancement and regulation of manufactures and commerce; as the trading companies of London, and other towns: and fome for the better carrying on of divers fpecial purposes; as churchwardens, for confervation of the goods of the parish; the college of phyficians and company of furgeons in London, for the improvement of the medical science : the royal fociety, for the advancement of natural knowledge; and the fociety of antiquaries, for promoting the ftudy of antiquities. And among these I am inclined to think the general corporate bodies of the univerfities of Oxford and Cambridge must be ranked: for it is clear they are not spiritual or ecclefiaftical corporations, being compofed of more laymen than clergy: neither are they eleemofynary foundations, though ftipends are annexed to particular magiftrates and profeffors, any more than other corporations where the acting officers have ftanding falaries; for these are rewards pro opera et labore, not charitable donations only, fince every ftipend is preceded by fervice and duty: they feem therefore to be merely civil corporations. The eleemofynary fort are fuch as are conftituted for the perpetual diftribution of the free alms, or bounty, of the founder of them to fuch perfons as he has directed. Of this kind are all hofpitals for the maintenance of the poor, fick, and impotent; and all colleges, both in our univerfities and out 5 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 affiftance to the members of those bodies, in order to enable them to profecute their devotion and ftudies with greater eafe and affiduity. And all these eleemofynary corporations are, ftrictly speaking, lay and not ecclefiaftical, even though compofed of ecclefiaftical perfons, and although they in fome things partake of the nature, privileges, and reftrictions of ecclefiaftical bodies.

5 Such as at Manchester, Eton, Winchester, &c.

6 1 Lord Raym. 6.

« EdellinenJatka »