The king, it is said, may grant to a subject the power of erecting corporations, though the contrary was formerly heldt: that is, he may permit the subject to tame the persons and powers of the corporation at his pleasure; but it is really the king that erects, and the subject is but the instrument: for though none but the king can make a corporation, yet qui facit per alium, facit per se (x). 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, now subsisting, of tradesmen subservient to the students. When a corporation is erected, a name must be given to it; and by that name alone it must sue and be sued, and do all [ 475] legal acts; though a very minute variation therein is not material (r). Such name is the very being of its constitution; and, though it is the will of the king that erects the corporation, yet the name is the knot of its combination, without which it could not perform its corporate functions (r). The name of incorporation, says Sir Edward Coke, is as a proper name, or name of baptism; and, therefore, when a private founder gives his college or hospital a name, he does it only as a godfather, and by that same name the king baptizes the incorporation (z) (6). II. After a corporation is so formed and named, it acquires many powers, rights, capacities, and incapacities, which we are next to consider. Some of these are necessarily and inseparably incident to every corporation; which incidents, as soon as a corporation is duly erected, are tacitly annexed, of course (y): as, 1. To have perpetual succession. This is the very end of its incorporation for there cannot be a suc (1) Bro. Abr. tit. "Prerog." 53; Vi- (t) Year Book, 2 Hen. VII. 13. (e) 10 Rep. 122. (w) Gilb. Hist. C. P. 182. (y) Ibid. 30; Hob. 211. (6) But it may have a name only by implication; as, if the king should incorporate the inhabitants of Dale, with power to choose 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).—CH. 2. Right to sue or porate name; be sued by its cor lands; 4. To have a common seal; cession for ever without an incorporation (z); and therefore all aggregate corporations have a power necessarily implied of electing members in the room of such as go off (a) (7). 2. To sue or be sued, implead or be impleaded, grant or receive, by its corporate name, and do all other acts as natural persons may. 3. To purchase lands, and hold them (8), for 3. To purchase the benefit of themselves and their successors; which two are consequential to the former (9). 4. To have a common seal (10). For a corporation, being an invisible body, cannot manifest its intentions by any personal act or oral discourse: it therefore acts and speaks only by its common seal. For, though the particular members may express their private consents to any act, by words, or signing their names, yet this does not bind the corporation : it is the fixing of the seal, and that only, which unites the several assents of the individuals who compose the community, and makes one joint assent of the whole (b). 5. To make by-laws or private statutes 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 (11). This is also included by (z) 10 Rep. 26. (b) Dav. 44, 48. (a) 1 Roll. Abr. 514. 5. To make by-laws. [ *476 ] (7) And where the mode of election is not prescribed by the charter, or established by immemorial usage, it may be regulated by a by-law. (3 T. R. 189). When the electors are described in the charter, their number, in order to avoid riot and confusion, may be restrained by a by-law; but a by-law cannot strike off an integral part, neither can it narrow the number of persons out of whom 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 Inst. 48).-CH. (8) See post, p. 479. (9) All corporations must have a licence from the king to enable them to purchase and hold lands in mortmain. (Co. Lit. 2; 7 & 8 Will. III. c. 37).-CH. (10) This is the general rule; but (11) When a by-law is not entire, Privileges and disabilities. law in the very act of incorporation (c): for, as natural reason is given to the natural body for the governing it, so by-laws or statutes are a sort of political reason to govern the body politic (12). 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 (d). 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, treasurer, and chief justices, or the judges of assize in their circuits; and, even though they be so approved, still, if contrary to law, they are void (e). These five powers are inseparably incident to every corporation, at least to every corporation aggregate; for two of them, though they may be practised, yet are very unnecessary to a corporation sole, viz. to have a corporate seal to testify his sole assent, 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 such as are sole; the reason of them ceasing, and of course the law. It must always appear by attorney; for it cannot appear in person, being, as Sir Edward Coke says (ƒ), invisible, and existing only in intendment and consideration of law. It can neither maintain, nor be made defendant to, an action of battery, or such like personal injuries: for a corporation can neither beat, nor be beaten, in its body politic (g). A corporation cannot commit treason, or felony, or other crime, in its corporate capacity (h): though its members may, in their dis (c) Hob. 211. (d) Sodales legem quam volent, dum ne quid ex publica lege corrumpant, sibi ferunto. (e) Stat. 19 Hen. VII. c.7; 11 Rep. 54. (f) 10 Rep. 32. (g) Bro. Abr. tit. "Corporation" 63. (h) 10 Rep. 32. 1 Str. 469; Harris v. Wakeman, Sayer, No corporation can make a by-law v. Nowill, 1 T. R. 124). (12) Where the power of making by-laws is in the body at large, they may delegate their right to a select body, who thus become the representative of the whole community. (Lord Mansfield, 3 Burr. 1837).-CH. tinct individual capacities (i) (13). Neither is it capable of * suffering a traitor's or felon's punishment, for it is not liable [ *477] to corporal penalties, nor to attainder, forfeiture, or corruption of blood. It cannot be executor or administrator, or perform any personal duties; for it cannot take an oath for the due execution of the office. It cannot be seised of lands to the use of another (j); for such kind of confidence is foreign to the end of its institution. Neither can it be committed to prison (k); for, its existence being ideal, no man can apprehend or arrest it. And therefore, also, it cannot be outlawed; for outlawry always supposes a precedent right of arresting, which has been defeated by the parties absconding, and that also a corporation cannot do: for which reasons the proceedings to compel a corporation to appear to any suit by attorney are always by distress on their lands and goods (1). Neither can a corporation be excommunicated; for it has no soul, as is gravely observed by Sir Edward Coke (m); and therefore also it is not liable to be summoned into the ecclesiastical courts upon any account; for those courts act only pro salute anime, and their sentences can only be enforced by spiritual censures: a consideration which, carried to its full extent, would alone demonstrate the impropriety of these courts interfering in any temporal rights whatsoever (14). (13) By the statute of 2 & 3 Gul. IV. c. 64, which was made to prevent the application of corporate property to the purposes of parliamentary elections, it is enacted, that any member of a municipal corporation who shall authorize any payment by the said act forbidden, or who shall assent to or concur in any affirmative vote, order, or proceeding relating thereto, or shall sign or seal in his individual capacity, or affix the corporate seal to any deed or instrument by the said act declared void, shall be guilty of a misdemeanor ; (14) The aid of the court of Chan- nary foundations. There are also other incidents and powers which belong to some sort of corporations, and not to others. An aggregate corporation may take goods and chattels for the benefit of themselves and their successors, but a sole corporation cannot (n) (15): for such moveable property is liable to be lost or embezzled, and would raise a multitude of disputes between the successor and executor, which the law is careful to Rules of eleemosy- avoid (16). In ecclesiastical and eleemosynary foundations, the king or the founder may give them rules, laws, statutes, and ordinances, which they are bound to observe: but corpo[*478] rations, merely *lay, constituted for civil purposes, are subject to no particular statutes (17); but to the common law, and to their own by-laws, not contrary to the laws of the realm (o). Aggregate corporations also, that have by their constitution a head, as a dean, warden, master, 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 such corporation is incomplete without a head (p). But there may be a corporation aggregate constituted without a head (q): as the collegiate church of Southwell, in Nottinghamshire, which consists only of prebendaries; and the governors of the Charter-house, London, who have no president or superior, but are all of equal authority. In aggregate corporations, also, the act of the major part is esteemed the act of the whole (r). By the civil law this major part must have consisted of two-thirds of the whole, else no act could be performed (s): which perhaps may be one reason why they required three at least to make a corporation. But with us any majority is sufficient to determine the act of the whole (n) Co. Lit. 46. (0) Lord Raym. 8. (r) Bro. Abr. tit. "Corporation," 31, 34. (s) Ff. 3. 4. 3. their power of excommunication was (15) See Vol. 2, p. 431, for a quali- (16) Mr. Hargrave considers the jewels of the crown rather as heir looms than an instance of chattels passing in succession in a sole corporation. (Co. Lit. 9, n. 1).—CH. (17) Their charters or immemorial usages, which are equivalent to the express provisions of a charter, are in fact their statutes.--CH. |