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ration sole: so is a bishop; so are some deans and prebendaries, distinct from their several chapters; and so is every parson and vicar.
The wisdom of the law is manifest in making a parson or vicar a body corporate, because originally the freehold of the churchyard, parsonage house, or manse as it is called in Scotland, the glebe, and the tithes, were vested in the parish clergymen, as a temporal recompense for their spiritual services to the people, and with the intent that the same emoluments should for ever afterwards continue as a recompense to their successors. And had not the law prevented it by this fiction, the freehold would have descended to the heirs of the clergy instead of to their successors, and they would have been liable for their debts and incumbrances; or at best their heirs might have been compellable, at considerable trouble and expense, to convey these rights to the succeeding incumbent. The law, therefore, has wisely ordained, that the parson or parish minister shall never die, any more than the king, by making both him and his successors a corporation; by which means all the original rights of the parsonage are preserved entire to his successor; for the present incumbent or minister, and his predecessor who lived seven centuries ago, are in law one and the same person; and what was given to the one was given to the other also.
Bodies corporate are again divided into ecclesiastical and lay, which may be either sole or aggregate.
Ecclesiastical corporations, are when the members that compose them are entirely spiritual persons; such as bishops, certain deans and prebendaries; all archdeacons, parsons, and vicars; these are sole corporations. Deans and chapters at present, and in popish times, priors and convents, abbots and monks, and the like, are corporations aggregate. These corporations were instituted for promoting religion and perpetuating its benefits in the world.
Other lay corporations have been erected for the good government of a town or particular district, as a mayor or commonalty, bailiff, and burgesses, or the like: some for the advancement and regulation of manufactures and commerce; as the trading companies of London and other towns; and some for the better carrying on of special purposes, as church wardens, for the conservation of the goods of the parish; the college of physicians, and company of surgeons, in London, for improving the medical science; the royal society, for the advancement of natural knowledge; and the society of antiquaries, for the study of antiquities. The eleemosynary sort, are such as are constituted for the perpetual distribution of the free alms or bounty of their founder, to such persons as he has directed. Of this kind are all hospitals for the maintenance of the poor, sick, and impotent; and all colleges, both in and without the two universities of Oxford and Cambridge; which colleges are founded for two purposes: 1. For the
promotion of piety and learning by proper regulations and ordinances; 2. For imparting assistance to the members of those bodies, in order to enable them to prosecute their devotion and studies with greater ease and assiduity. And all these eleemosynary corporatious are strictly speaking lay, and not ecclesiastical, even although they be composed of ecclesiastical persons, and although in some things they partake of the nature, privileges, and restrictions of ecclesiastical bodies.
Having now pointed out the several species of corporations, we will consider, I. How corporations in general may be created. II. What are their powers. And, III. How they may be dissolved.
I. Corporations may be created either by common law, by prescription, or by act of parliament. But as the king's consent is absolutely necessary, any one of these methods may be reduced to this, of the king's letters patent or charter of corporation; for in all cases the king's consent is either implied or expressly given. The king's implied consent is to be found in corporations which exist by force of the common law, to which former kings are supposed to have given their consent; common law being nothing else than custom arising from the universal agreement of the whole community. Of this sort are, by a fiction of law, the king himself, all bishops, parsons, vicars, church wardens, and some others; who have ever been held in common law (as far as law books can show) to have been corporations virtute offici; and this corporation is so inseparably annexed to their offices, that we cannot frame a complete legal idea of any of those persons, but we must have an idea of a corporation, capable of transmitting his rights to his successors at the same time. Another method of implication, whereby the king's consent is presumed, is as to all corporations by prescription, such as the city of London, and many others, which have existed as corporations beyond the memory of man; and therefore are considered in law to be well created. For although the members thereof can show no legal charter of incorporation, yet in cases of such high antiquity, the law presumes that there once was one, and that by variety of accidents, which the lapse of time may produce, the charter has been lost or destroyed. The methods by which the king's consent is expressly given, are either by act of parliament or charter. Corporations may certainly be created by act of parliament, for to that the king's consent is absolutely necessary to make an act; but it is to be observed, that most of those statutes which are usually cited, as having created incorporations, either confirm such as have before been created by the king; as in the case of the college of physicians, created by charter in the tenth year of the reign of Henry VIII., which charter was afterwards confirmed by act of parlia ment; or they recognise the king's right to erect a corporation in futuro, with such and such powers, as in the case of the bank of England, and the
society of the British fishery, so that in fact the king is the creator means of his royal prerogative. All other methods, therefore, by whic corporations exist, by common law, by prescription, and by act of parlia ment, are for the most part reduceable to this of the king's letters patem or charter of incorporation. The king's creation may be performed b the words, creamus, erigimus, fundamus, incorporamus, or such like Nay, it is even held, that if the king grants to a set of men to have "mercantile meeting or assembly," it is alone sufficient to incorporate and establish them for ever. The king may grant the power of erecting cor porations to a subject; that is, he may permit the subject to name the persons and powers of the corporation at his pleasure; but it is in reality the king who erects, and the subject is but his instrument; for though none but the king alone can make a corporation, yet he who acts by the instrumentality of another is himself the operator. 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 of tradesmen subservient to the students, which incorporations are at present subsisting, nevertheless it is still the king who in reality erects, only using the instrumentality of the chancellor.
II. When a corporation is erected, it is necessary that a name be given to it; and by that name alone it must sue and be sued, and do all legal acts. When a corporation is once formed and named, it acquires various powers, rights, capacities, or incapacities; some of which are incident to all corporations, such as the right of electing members to keep up perpetual succession, which is the very end and design of its incorporation; and therefore all aggregate corporations have a necessarily implied power in electing members in the place of those who die or are removed; the power of doing all such legal acts as natural persons may perform; to sue and be sued, implead or be impleaded, grant or receive by its corporate name, the same as an individual person; of purchasing lands and holding them for themselves and successors; of having a common seal, the affixing of which makes one joint assent of the whole community: for a corporation being an invisible body, cannot manifest its intention by any personal act or oral discourse, it otherwise acts and speaks only by its common seal; for though the particular members may express their private consents to any acts by words, or signing their names, yet these do not bind the corpora tion; it is the affixing of the common seal, and that only, which unites the several assents of the individuals composing the community, and makes a joint assent of the whole; and of making bye-laws for the better government of the society; which laws, however, must not be contrary to the laws of the land, otherwise they are void. But no trading company in Great Britain is allowed to make bye-laws, which in any wise affect the
ing's prerogative, or the common profit of the people, under a penalty of orty pounds, unless they be approved of by the chancellor, treasurer, and hief justices, or the judges of assize in their circuits; and even though hey be so approved, still if contrary to law they are void. These powers re inseparably incident to all aggregate corporations; for although two of them may be practised by a corporation sole, yet they are very unneJessary, viz. to have a corporate seal to testify his sole assent, and to make statutes for his own government. There are certain disabilities attached to aggregate corporations. They cannot commit treason or any other offence, in their corporate capacity, though they may as individual members.
Corporations have a capacity to purchase lands for themselves and successors; but they are excepted out of the statute of wills; so a devise of lands to a corporation is not good, except it be for charitable uses. And even their privilege of purchasing from any living granter is much abridged by several statutes; so that before they can exert that capacity with which they are invested by the common law, a corporation, either lay or ecclesiastical, must have a license to purchase from the king.
The particular duty of a corporation, is to act up to the end or design, whatever it be, for which it was created. But as all corporate bodies, like individuals, are frail and liable to err, the law has provided proper persons to visit, inquire into, and correct all improprieties and abuses that may arise in any corporation, whether sole or aggregate, and to rectify their irregularities or misconduct. Formerly the pope, but now the king, is the legal visitor of the archbishops of Canterbury and York; the archbishop has the charge of all the bishops in his province; and the bishops superintend all deans and chapters, parsons, vicars, and all other spiritual corporations in their respective dioceses. The founders, their heirs or assigns, are the visitors of all lay corporations, whether civil or eleemosynary.
By the founder of a corporation, in the strict and original sense of the term, the law understands to be the king, who alone can incorporate a society; so that in civil corporations, there is no other founder than the king. But in the case of eleemosynary foundations, such as colleges and hospitals, where there is an endowment of land, the right of visitation devolves by law to the patron or endower, his heirs and assigns.
The king exercises his jurisdiction over civil corporations in his court of king's bench, where alone all misbehaviours of this kind of corporations are inquired into and redressed. It is not, however, customary in professional language, to call this authority of the king's bench, a visitorial power. If the endower of an eleemosynary corporation appoint no one as a visitor, that office devolves on the bishop of the diocese.
III. How a corporation may be dissolved. Any particular member of
a corporation may be disfranchised, or be deprived of his place in it, by acting contrary to the laws of the society, or the laws of the land, or he may voluntarily resign his rights and privileges. But the body politic itself may also be dissolved in several ways, which dissolution is its civil death; and when it becomes defunct, their lands and tenements revert to the person or his heirs who originally granted them to the corporation, because the law annexes a condition to every such grant, that if the corporation shall be dissolved, the granter shall have his lands again, on account of the failure of the cause of the grant. The grant continues indeed only during the existence of the corporation, which may endure for ever, but when that life is determined by the dissolution of the body politic, the granter takes it back by reversion, as in the case of any other grant for life.
Corporations may be dissolved by act of parliament, which is boundless in its operations; by the natural death of all its members, in cases of aggregate corporations; by surrender of their franchises into the king's hands; and by forfeiture of their charters, through negligence or abuse of their privileges; in which case the law judges that the body politic has broken the conditions on which it was incorporated, and therefore the incorporation is void. In the abuse of its franchise, a writ quo warranto is granted to inquire by what warrant the members now exercise their corporate power, having forfeited it by such and such proceedings. When a corporation is dissolved, the endowment reverts to the heirs of the patron who endowed it. By such dissolution its debts, either to or by it, are totally extinguished, and its members are neither individually nor collectively accountable for them.
When king Charles II. enforced the law, by issuing the writ of quo warranto against the city of London, the other corporations throughout the kingdom surrendered their charters into the king's hands. He afterwards restored their charters under certain conditions. But after the Revolution, the statute 2 W. and M. reversed the judgment against the city of London, and enacted, that its franchises shall never more be forfeited for any cause whatever.* 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 by the custom established by prescription, it is now provided that in 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 charter or prescriptive day.
On the 13th April, 1829, a bill passed both houses, after violent
*Custance on the Constitution.