private ftatutes 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 reason is given to the natural body for the governing it, fo by-laws or ftatutes are a fort 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, allowed to make by-laws, which may affect the king's preroga tive, or the common profit of the people, under penalty of 401. unless they be approved by the chancellor, treasurer, and chief juftices, or the judges of affife in their circuits: and, even though they be fo approved, still if contrary to law they are void. The five powers are infeparably incident to every corporation, at leaft to every corporation aggregate: for two of them, though they may be practifed, yet are very unneceffary to a corporation ; viz. to have a corporate feal to testify his fole affent, and to make ftatutes for the regulation of his own conduct. THERE are also certain privileges and difabilities that attend an aggregate corporation, and are not applicable to fuch as are fole; the reafon of them ceafing, and of course the law. It muft always appear by attorney; for it cannot appear in perfon, being, as fir Edward Coke fays, invisible, 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". A corporation cannot commit treafon or felony, or other crime, in it's corporate capacity: though it's members may, in their diftinct individual capacities. Neither is it capable 1 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. It cannot be executor or adminiftrator, or perform any perfonal dutics; for it cannot take an oath for the due exccution of the office. It cannot be feifed of lands to the use of another'; for fuch kind of confidence is foreign to the end of it's inftitution. Neither can it be committed to prifon*; for it's exiftence being ideal, no man can apprehend or arreft it. And therefore alfo it cannot be outlawed; for outlawry always fuppofes a precedent right of arrefting, which has been defeated by the parties abfconding, and that alfo a corporation cannot do: for which reafons the proceedings to compel a corporation to appear to any fuit by attorney are always by diftrefs on their lands and goods'. Neither can a corporation be excommunicated: for it has no foul, as is gravely obferved by fir Edward Coke": and therefore alfo it is not liable to be fummoned into the ecclefiaftical courts upon any account; for thofe courts act only pro falute animae, and their fentences can only be inforced by fpiritual cenfures: a confideration, which, carried to it's full extent, would alone demonftrate the impropriety of thefe courts interfering in any temporal rights whatfoever. THERE are alfo other incidents and powers, which belong to fome fort of corporations, and not to others. An aggregate corporation may take goods and chattels for the benefit of themselves and their fucceffors, but a fole corporation cannot": for fuch moveable property is liable to be loft or imbezzled, and would rate a multitude of difputes between the fucceffor and executor; which the law is careful to avoid. In ccclefiaftical and eleemofynary foundations, the king or the founder may give them rules laws, itatutes, and ordinances, which they are bound to obferve: but 3. br. tit. Feffm. al ufes. 40. Bacon 1 Pro. Abr. tit. Corporation. 11. Outlawry. 72. m 10 Rep. 32. n Co. Litt 46. but corporations merely lay, constituted for civil purposes, are fubject to no particular ftatutes; but to the common law, and to their own by-laws, not contrary to the laws of the realm. Aggregate corporations alfo, that have by their conflitution a head, as a dean, warden, mafter, 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 fuch corporation is incomplete without a head". But there may be a corporation aggregate conftituted without a head; as the collegiate church of Southwell in Nottinghamshire, which confifts only of prebendaries; and the governors of the Charter-house, London, who have no prefident or fuperior, but are all of equal authority. In aggregate corporations also, the act of the major part is esteemed the act of the whole', By the civil law this major part must have confifted of two thirds of the whole: elfe no act could be performed' which perhaps may be one reafon why they required three at least to make a corporation. But, with us, any majority is fufficient to determine the act of the whole body. And whereas, notwithstanding the law ftood thus, fome founders of corporations had made ftatutes in derogation of the common law, making very frequently the unanimous affent of the fociety to be neceffary to any corporate act; (which king Henry VIII found to be a great obftruction to his projected fcheme of obtaining a furrender of the lands of ecclefiaftical corporations) it was therefore enacted by statute 33 Hen. VIII. c. 27. that all private ftatutes fhall bẹ 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 obftructed by any one or more, being the minority: but this ftatute extends not to any negative or neceflary voice, given by the founder to the head of any fuch fociety. WE before obferved that it was incident to every corporation, to have a capacity to purchafe lands for themfelves and fucceffors: and o Lord Raym. 8. p Co. Litt. 263, 264. q 10 Rep. 30. r Bro. Abr. tit. Corporation. 31, 34. and this is regularly true at the common law'. But they are excepted out of the ftatute of wills"; fo that no devife of lands to a corporation by will is good: except for charitable uses, by statute 43 Eliz. c. 4": which exception is again greatly narrowed by the ftatute 9 Geo. II. c. 36. And also, by a great variety of ftatutes* their privilege even of purchafing from any living grantor is much abridged; fo that now a corporation, either ecclefiaftical or lay, must have a licence from the king to purchase', before they can exert that capacity which is vefted in them by the common law: nor is even this in all cafes fufficient. Thefe ftatutes are generally called the ftatutes of mortmain; all purchases made by corporate bodies being faid to be purchases in mortmain, in mortua manu: for the reafon of which appellation fir Edward Coke' offers many conjectures; but there is one which feems more probable than any that he has given us: viz. that these purchases being ufually made by ecclefiaftical bodies, the members of which (being profeffed) were reckoned dead perfons in law, land therefore, holden by them, might with great propriety be faid to be held in mortua manu. I SHALL defer the more particular expofition of thefe ftatutes of mortmain, till the next book of thefe commentaries, when we fhall confider the nature and tenures of eftates; and alfo the expofition of those disabling ftatutes of queen Elizabeth, which reftrain fpiritual and eleemofynary corporations from aliening fuch lands as they are at prefent in legal poffeffion of: only mentioning them in this place, for the fake of regularity, as ftatutable incapacities incident and relative to corporations. THE general duties of all bodies politic, confidered in their corporate capacity, may, like thofe of natural perfons, be reduced to y By the civil law a corporation was incapable of taking lands, unless by special privilege from the emperor: collegium, fi nullo haereditatem caCod. 6. 24.8. t 10 Rep. 30. u 34 Hen. VIII. c. 5. w Hob. 136. x From magna carta, 9 Hen. IIL c. 36. jpeciali privilegio fubnixum fit, to 9 Geo. II. c. 36. pere non 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. I PROCEED therefore next to enquire, how these corporations may be vifited. For corporations being compofed of individuals, fubject to human frailties, are liable, as well as private perfons, to deviate from the end of their inftitution. And for that reafon the law has provided proper perfons to vifit, enquire inte and correct all irregularities that arife in fuch corporations, either fole or aggregate, and whether ecclefiaftical, civil, or eleemofynary. With regard to all ecclefiaftical corporations, the ordinary is their vifitor, fo conftituted by the canon law, and from thence derived to us. The pope formerly, and now the king, as fupreme ordinary, is the visitor of the arch-bishop or metropolitan; the metropolitan has the charge and coercion of all his fuffragan bifhops; and the bishops in their feveral diocefes are in ecclefiaftical matters the visitors of all deans and chapters, of all parsons and vicars, and of all other spiritual corporations. With refpect to all lay corporations, the founder, his heirs, or affigns, are the visitors, whether the foundation be civil or eleemofynary; for in a lay incorporation the ordinary neither can nor ought to vifit. I KNOW it is generally faid, that civil corporations are subject to no vifitation, but merely to the common law of the land; and this fhall be prefently explained. But firft, as I have laid it down as a rule that the founder, his heirs, or affigns, are the visitors of all lay-corporations, let us enquire what is meant by the founder. The founder of all corporations in the ftricteft and original fenfe is the king alone, for he only can incorporate a fociety: and in civil incorporations, fuch as mayor and commonalty, &c. where there are no poffeffions or endowments given to the body, there is no other founder but the king: but in cleemofynary foundations, fuch as colleges and hofpitals, where there is an endowment of lands, the law diftinguishes, and makes two fpecies of foundation; the one fundatio incipiens, or the incorporation, in which a to Rep. 31. |
