Sivut kuvina
PDF
ePub

1

Having thus marshalled the feveral fpecies of corporations, let us next proceed to confider, 1. How corporations, in general, may be created. 2. What are their powers, capacities, and incapacities. 3. How corporations are vifited. And 4. How they may be diffolved.

I. Corporations, by the civil law, feem to have been created by the mere act, and voluntary affociation of their members; provided such convention was not contrary to law, for then it was illicitum collegium. It does not appear that the prince's confent was neceffary to be actually given to the foundation of them; but merely that the original founders of thefe voluntary and friendly focieties (for they were little more than fuch) fhould not eftablish any meetings in oppofition to the laws of the ftate.

But, with us in England, the king's confent is abfolutely neceffary to the erection of any corporation, either impliedly or exprefs given 8. The king's implied confent is to be found in corporations which exift by force of the common law, to which our former kings are supposed to have given their concurrence; common law being nothing elfe but cuftom, arifing from the universal agreement of the whole community. Of this fort are the king himfelf, all bifhops, parfons, vicars, churchwardens, and fome others; who by common law have ever been held (as far as our books can fhew us) to have been corporations, virtute officii: and this incorporation is fo infeparably 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 tranfmit his rights to his

7 Ff. 47. 22. I. Neque focietas, neque collegium, neque hujufmodi corpus paffim omnibus habere conceditur; nam et legibus, et fenatus confultis, et principalibus conftitutionibus ea rès coercetur. Ff. 3. 4. 1.

8 Cities and towns were first erected into corporate commu

nities on the continent, and endowed with many valuable privileges, about the eleventh century: (Robertf. Cha. V. i. 30.) to which the confent of the feodal fovereign was absolutely neceffary, as many of his prerogatives and revenues were thereby confiderably diminished.

fucceffors, at the fame time. Another method of implication, whereby the king's confent is prefumed, is as to all corporations by prefcription, fuch as the city of London, and many others, which have exifted 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 fhew no legal charter of incorporation, yet in cafes of fuch high antiquity the law prefumes there once was one; and that by the variety of accidents, which a length of time may produce, the charter is loft or deftroyed. The methods by which the king's confent is exprefsly given, are either by act of parliament or charter. By act of parliament, of which the royal affent is a neceffary ingredient, corporations may undoubtedly be created; but it is obfervable, that (till of late years) moft of thofe ftatutes, which are ufually cited as having created corporations, do either confirm fuch as have been before created by the king; as in the cafe of the college of phyficians erected by charter 10 Hen. VIII.', which charter was afterwards confirmed in parliament; or, they permit the king to erect a corporation in futuro with fuch and fuch powers; as is the cafe of the bank of England, and the fociety of the British fishery. So that the immediate creative act was ufually performed by the king alone, in virtue of his royal prerogative 5.

All the other methods therefore whereby corporations exift, by common law, by prescription, and by act of parliament, are for the moft 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

[blocks in formation]

6

meeting or affembly ", this is alone fufficient to incorporate and establish them for ever 7.

The parliament, we obferved, by its abfolute and tranfcendent authority, may perform this, or any other act whatsoever: and actually did perform it to a great extent, by ftatute 39 Eliz. c. 5. which incorporated all hofpitals and houfes of correction founded by charitable perfons, without farther trouble: and the fame has been done in other cafes of charitable foundations. But otherwise it has not formerly been ufual thus to intrench upon the prerogative of the crown, and the king may prevent it when he pleases. And, in the particular inftance before mentioned, it was done, as fir Edward Coke obferves, to avoid the charges of incorporation and licences of mortmain in finall benefactions; which in his days were grown fo great, that they difcouraged many men from undertaking thefe pious and charitable works.

:

The king (it is faid) may grant to a fubject the power of erecting corporations, though the contrary was formerly held that is, he may permit the fubject to name the perfons and powers of the corporation at his pleafure; but it is really the king that erects, and the fubject is but the inftrument: for though none but the king can make a corporation, yet qui facit per alium, facit per fe1. In this manner the chancellor of the univerfity of Oxford has power by charter to erect corporations; and has actually often exerted it, in the erection of feveral matriculated companies, now fubfifting, of tradesmen fubfervient to the ftudents.

When a corporation is erected, a name must be given to it; and by that name alone it must sue, and be

[blocks in formation]

fued, and do all legal acts; though a very minute variation therein is not material. Such name is the very being of it's conftitution; 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 3. The name of incorporation, fays fir Edward Coke, is as a proper name, or name of baptism; and therefore when a private founder gives his college or hofpital a name, he does it only as a godfather; and by that fame name the king baptizes the incorporation *.

:

II. After a corporation is fo formed and named, it acquires many powers, rights, capacities, and incapacities, which we are next to confider. Some of thefe are neceffarily and infeparably incident to every 'corporation; which incidents, as foon as a corporation is duly erected, are tacitly annexed of course3. As, 1. To have perpetual fucceffion. This is the very end of it's incorporation for there cannot be a fucceffion for ever without an incorporation; and therefore all aggregate corporations have a power neceffarily implied of electing members in the room of fuch as go off”. 2. To fue or be fued, implead or be impleaded, grant or receive, by it's corporate name, and do all other acts as natural perfons may. 3. To purchafe lands, and hold them, for the benefit of themfelves and their fucceffors; which two are confequential to the former. 4. To have a common feal. For a corporation, being an invifible body, cannot manifeft it's intentions by any perfonal act or oral difcourfe; it therefore acts and fpeaks only by it's common feal. For, though the particular members may exprefs their private confents to any act, by words, or figning their names, yet this does not bind the corporation it is the fixing of the feal, and that only, which unites the feveral affents of the individuals, who compofe the community, and makes one joint affent of the whole . 3. To make by-laws, or

2 Ibid. 122.

3 Gilb. Hift. C. P. 182.

4

10 Rep. 28.

Ibid. 30. Hob. 211.

6 10 Rep. 26.

71 Roll. Abr. 514.
8 Dav. 44. 48.

:

private fatutes 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 alfo included by law in the very act of incorporation for, as natural reafon is given to the natural body for the governing it, fo by-laws or ftatutes are a fort of political reafon 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, allowed to make by-laws, which may affect the king's prerogative, or the common profit of the people, under penalty of 407. unless they be approved by the chancellor, treafurer, and chief juftices, or the judges of affife in their circuits and, even though they be fo approved, ftill if contrary to law they are void'. These five powers are infeparably incident to every corporation, at least to every corporation aggregate: for two of them, though they may be practifed, yet are very unneceffary to a corporation fole; viz. to have a corporate feal to teftify his fole affent, and to make statutes for the regulation of his own conduct.

:

There are also certain privileges and disabilities that attend an aggregate corporation, and are not applicable to fuch as are fole; the reafon of them ceafing, and of courfe the law. It must always appear by attorney; for it cannot appear in perfon, being, as fir Edward Coke fays, invifible, and exifting only in intendment and confideration of law. It can neither maintain, or be made defendant to, an action of battery or fuch like perfonal injuries: for a corporation can neither beat, nor be beaten, in it's body politic 3. A corporation cannot commit treason, or felony, or other crime, in it's corporate capacity: though it's members may, in their diftinct individual

[blocks in formation]
« EdellinenJatka »