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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 thefe perfons, but we must also have an idea of a corporation, capable to transmit his rights to his fucceffors, at the fame time. Another me- [473] thod of implication, whereby the king's confent is prefumed, is as to all corporations by prefeription, 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 cases of such 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 destroyed. 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 creat ed ': but it is obfervable, that (till of late years) most of those ftatutes, which are ufually cited as having created corporations, do either confirm such as have been before created by the king; as in the cafe of the college of physicians 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 such 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 usually performed by the king alone, in virtue of his royal prerogative °.

ALL the other methods therefore whereby corporations exist, by common law, by prefeription, and by act of parliament, are for the most part reducible to this of the king's letters patent, or charter of incorporation. The king's crea

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tion may be performed by the words "creamus, erigimus, fun"damus, incorporamus," or the like. Nay it is held, that if the [474king grants to a set of men to have gildam mercatoriam, a mercantile meeting or affembly P, this is alone fufficient to incorporate and establish them for ever.

THE parliament, we obferved, by its abfolute and tranfcendent authority, may perform this, or any other act whatfoever 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 fmall 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 pleasure; 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 fe". 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 feveral matriculated companies, now fubfifting, of tradefmen fubfervient to the students.

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WHEN a corporation is erected, a name must be given to it; and by that name alone it must fue, and be fued, and do all legal acts; though a very minute variation therein is not [ 475 ] 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". The name of incorporation, fays fir Edward Coke, is as a proper name, or name of baptifm; 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 * (3).

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 these are neceffarily and infeparably incident to every corporation; which incidents, as foon as a corporation is duly erected, are tacitly annexed of course . 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 2; and therefore all aggregate corporations have a power neceffarily implied of electing members in the room of fuch as go off1(4).

☐ 10 Rep. 122.

w Gilb. Hift. C. P. 182. X 10 Rep. 28.

Y Ibid. 30. Hob. 211.
Z 10 Rep. 26.

a 1 Roll. Abr. 514.

(3) But it may have a name only by implication; as if the king should incorporate the inhabitants of Dale with power to chufe a mayor annually, though no name be given, yet it is a good corporation by the name of mayor and commonalty. 1 Salk. 191. And it may change its name, as corporations frequently do in new charters, and it still retains its former rights and privileges. 4 Co. 87.

(4) And where the mode of election is not prefcribed by the charter, or established by immemorial usage, it may be regulated by a by-law. 3 T. R. 189. When the electors are defcribed in the charter, their number, in order to avoid riot and, confufion, may be restrained by a by-law; but a by-law cannot strike off an integral part, neither can it narrow the number of perfons out of whom

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475 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 held them, for the benefit of themfelves and their fucceffors; which two are confequential to the former (5). 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 speaks only by it's common feal. For, though the particular members may express their private consents 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". 5. To make by-laws or private ftatutes for the better govern[ 476] ment of the corporation; which are binding upon themselves, unlefs 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 statutes are a fort of political reason to govern the body politic (6). 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 prero

b Dav. 44. 48.

Hob. 211.

Sodales legem quam volent, dum ne

quid ex publica lege corrumpant, fibi fe

runto.

the election is to be made. 3 Burr. 1833. But the number of the electors of members of parliament cannot be diminished by a bylaw. 4 Inft. 48.

(5) All corporations must have a licence from the king, to enable them to purchase and hold lands in mortmain. Co. Litt. 2. 7 & 8 W. 3. c. 37.

(6) Where the power of making by-laws is in the body at large, they may delegate their right to a felect body, who thus become the reprefentative of the whole community. Ld. Mansfield, 3 Burr. 1837.

gative,

gative, or the common profit of the people, under penalty of 407. unless they be approved by the chancellor, treasurer, and chief juftices, or the judges of aflife in their circuits : and, even though they be fo approved, ftill if contrary to law they are void. Thefe 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 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 such as are fole; the reafon of them ceafing, and of course 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 personal 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 distinct individual capacities. Neither is it capable of suffering a traitor's or felon's punithment, for it is not liable to [477] corporal penalties, nor to attainder, forfeiture, or corruption of blood. It cannot be executor or adminiftrator, or perform any perfonal duties; for it cannot take an oath for the due execution of the office. It cannot be feifed of lands to the use of anotherj; for such kind of confidence is foreign to the end of it's institution. Neither can it be committed to prifon; for it's existence being ideal, no man can apprehend or arreft it. And therefore also it cannot be outlawed; for outlawry always fuppofes a precedent right of arrefting, which

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