has been defeated by the parties abfconding, and that also a corporation cannot do: for which reasons the proceedings to compel a corporation to appear to any fuit by attorney are always by distress on their lands and goods'. Neither can a corporation be excommunicated; for it has no foul, as is gravely obferved by fir Edward Coke m: 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 spiritual cenfures a confideration, which, carried to it's full extent, would alone demonftrate the impropriety of these courts interfering in any temporal rights whatsoever. 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 themfelves and their fucceffors, but a fole corporation cannot for fuch moveable property is liable to be loft or imbezzled, and would raife a multitude of difputes between the fucceffor and executor; which the law is careful to avoid (7). In ecclefiaftical and eleemofynary foundations, the king or the founder may give them rules, laws, ftatutes, and ordinances, which they are bound to obferve: but corporations merely [ 478 lay, conftituted for civil purposes, are fubject to no particular ftatutes (8); but to the common law, and to their own bylaws, not contrary to the laws of the realm. Aggregate corporations alfo, that have by their conftitution a head, as a dean, warden, mafter, or the like, cannot do any acts during the vacancy of the headship, except only appointing 1 Bro. Abr. tit. Corporation. 11. Outlawry. 72. m 10 Rep. 32. n Co. Litt. 46. • Lord Raym. 8, (7) Mr. Hargrave confiders the jewels of the crown rather as heir-looms, than an inftance of chattels paffing in fucceffion in a fule corporation. Co. Litt. 9. n. 1. (8) Their charters or immemorial ufages, which are equivalent to the exprefs provifions of a charter, are in fact their flatutes. another: 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 9: 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 obstruction to his projected scheme 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 be 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 obstructed by any one or more, being the minority: but this ftatute extends not to any negative or neceffary voice, given by the founder to the head of any such society (9). P Co. Litt. 263, 264. Bro. Abr. tit. Corporation. 31. 34. $ Ff. 3. 4. 3• (9) This act clearly vacates all private ftatutes, both prior and fubfequent to its date, which require the concurrence of more than a majority to give validity to any grant or election. The learned Judge is of opinion, that it has not affected the negative given by the ftatutes to the head of any society; but I am inclined to think this opinion may be queftioned; efpecially in cafes where, in the firft inftance, he gives his vote with the members of the fociety. It is the ufual language of college ftatutes to direct that many acts shall be done by gardianus 5 major pars fociorum, or magifter, or præpofi W WE before obferved that it was incident to every corporation, to have a capacity to purchase lands for themselves and [479] fucceffors: 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 ufes, by ftatute 43 Eliz. c. 4. : which exception is again greatly narrowed by the statute 9 Geo. II. c. 36. And also, by a great variety of statutes, 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 vested in them by the common law: nor is even this in all cafes fufficient. These 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 seems more probable than any that he has given us: viz. that these pur chafes being usually 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 (10). t 10 Rep. 30. 11 37 Hen. VIII. c. 5. w Hob. 136. x From magna carta, 9 Hen. III. 8. 36. to 9 Geo. II. c. 36. y By the civil law a corporation was incapable of taking lands, unless by fpe- tus et major pars; and it has been determined by the court of king's bench, (Coup. 377.) and by the vifitor of Clare-hall, Cambridge, and also by the visitors of Dublin college, that this expreffion does not confer upon the warden, mafter, or provoft, any negative; but that his vote must be counted with the reft, and that he is concluded by a majority of votes against him. (10) If I might add another conjecture upon the origin of this word, I should say that lands held by a corporation, on account of the perpetuity of fucceffion, did not yield to the lord the great feudal fruits of relief, wardship, and marriage; and for that reafon they might be faid to be held in a dead or unproductive hand. I SHALL defer the more particular expofition of these statutes of mortmain till the next book of these commentaries, when we shall confider the nature and tenures of estates; and alfo the expofition of thofe difabling ftatutes of queen Elizabeth, which reftrain spiritual and eleemofynary corporations from aliening fuch lands as they are at present 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 this fingle one; that of acting up to the end or [480] defign, whatever it be, for which they were created by their founder. III. I PROCEED therefore next to inquire, 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, inquire into, 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 visitor, fo conftituted by the canon law, and from thence derived to us. The pope formerly, and now the king, as fupreme ordinary, is the vifitor of the archbishop or metropolitan; the metropolitan has the charge and coercion of all his fuffragan bishops; and the bishops in their feveral dioceses are in ecclefiaftical matters the vifitors of all deans and chapters, of all parfons and vicars, and of all other fpiritual corporations. With respect 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 visit 2. -a 10 Rep. 31. 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 first, as I have laid it down as a rule that the founder, his heirs, or affigns, are the vifitors of all lay corporations, let us inquire what is meant by the founder. The founder of all corporations in the stricteft 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 poffellions or endowments given 'to the body, there is no other founder but the king: but in eleemofynary foundations, such as colleges and hofpitals, where there is an endowment of lands, the law diftinguishes, and makes two fpecies of foun[481dation; the one fundatio incipiens, or the incorporation, in which fenfe the king is the general founder of all colleges and hospitals; the other fundatio perficiens, or the dotation of it, in which sense the first gift of the revenues is the foundation, and he who gives them is in law the founder and it is in this last sense that we generally call a man the founder of a college or hofpital". But here the king has his prerogative for, if the king and a private man join in endowing an eleemofynary foundation, the king alone fhall be the founder of it. And, in general, the king being the fole founder of all civil corporations, and the endower the perficient founder of all eleemofynary ones, the right of visitation of the former refults, according to the rule laid down, to the king; and of the latter to the patron or endower. THE king being thus conftituted by law vifitor of all civil corporations, the law has alfo appointed the place, wherein he shall exercise this jurifdiction: which is the court of king's bench; where, and where only, all mifbehaviours of this kind of corporations are inquired into and redressed, and all their controverfies decided. And this is what I understand to be the meaning of our lawyers, when they fay that these civil corporations are liable to no vifitation; that bio Rep. 33. |