a town or particular district, as a mayor and commonalty, bailiff and burgefies, or the like: fome for the advancement and regulation of manufactures and commerce; as the trading companies of London, and other towns: and fome for the better carrying on of divers fpecial purpofes; as churchwardens, for confervation of the goods of the parifh; the college of phyficians and company of furgeons in London, for the improvement of the medical science; the royal fociety, for the advancement of natural knowledge; and the fociety of antiquaries, for promoting the ftudy of antiquities. And among thefe I am inclined to think the general corporate bodies of the universities of Oxford and Cambridge must be ranked : for it is clear they are not fpiritual or ecclefiaftical corporations, being compofed of more laymen than clergy: neither are they eleemofynary foundations, though ftipends are annexed to particular magiftrates and profeffors, any more than other corporations where the acting officers have standing salaries; for these are rewards pro opera et labore, not charitable donations only, fince every ftipend is preceded by fervice and duty they feem therefore to be merely civil corporations. The eleemofynary fort are fuch as are conftituted for the perpetual diftribution of the free alms, or bounty, of the founder of them to fuch perfons as he has directed. this kind are all hofpitals for the maintenance of the poor, fick, and impotent; and all colleges, both in our univerfities and out of them: which colleges, are founded for two purposes; 1. For the promotion of piety and learning by proper regulations and ordinances. 2. For imparting afliftance to the members of thofe bodies, in order to enable them to profecute their devotion and ftudies with greater ease and affiduity. And all these eleemofynary corporations are, ftrictly fpeaking, lay and not ecclefiaftical, even though composed of ecclefiaftical perfons, and although they in fome things partake of the nature, privileges, and reftrictions of ecclefiaftical bodies. e e Such as at Manchester, Eton, f 1 Lord Raym. 6. Winchester, &c. * Of HAVING HAVING thus marshalled the feveral fpecies of corporations, let us next proceed to confider, 1. How corporations, in general, may be created. 2. What are their powers, capacities, and incapacities. 3. How corporations are vifited. And 4. How they may be diffolved. I. CORPORATIONS, by the civil law, feem to have been created by the mere act, and voluntary affociation of their members; provided fuch convention was not contrary to law, for then it was illicitum collegium. It does not appear that the prince's confent was necefiary to be actually given to the foundation of them; but merely that the original founders of thefe voluntary and friendly focieties (for they were little more than fuch) fhould not establish any meetings in oppofition to the laws of the ftate. BUT, with us in England, the king's confent is abfolutely neceffary to the erection of any corporation, either impliedly or expressly given". The king's implied confent is to be found in corporations which exift by force of the common law, to which our former kings are fupposed to have given their concurrence; common law being nothing elfe but cuftom, arifing from the univerfal agreement of the whole community. Of this fort are the king himself, all bishops, parfons, vicars, churchwardens, and fome others; who by common 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 these perfons, but we must also have an idea of a corporation, capable to tranfmit Ff. 47. 22. 1. Neque focietas, neque collegium, neque hujufmodi corpus pafJim omnilus babere conceditur; nam et le gibus, et fenatus confultis, et principalibus conflitutionibus ca res coercetur. Ff.3.4.1. Cities and towns were first erected into corporate communities on the con tinent, and endowed with many valuable privileges, about the eleventh century: (Robertf. Cha. V. i. 30.) to which the confent of the feodal fovereign was abfolutely neceffary, as many of his prerogatives and revenues were thereby coafiderably diminished. his rights to his fucceffors, at the fame time. Another method of implication, whereby the king's confent is prefumed, is as to all corporations by prescription, fuch as the city of London, and many others j, which have exifted as corporationis, 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 cafes of fuch 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 neceflary ingredient, corporations may undoubtedly be createdi: but it is obfervable, that (till of late years) most of thofe ftatutes, which are ufually cited as having created corporations, do either confirm fuch as have been before created by the king; as in the cafe of the college of phyficians 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 fuch 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 ufually performed by the king alone, in virtue of his royal prerogative". ALL the other methods therefore whereby corporation exist, by common law, by prefcription, 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 creation may be performed by the words " creamus, erigimus, fun"damus, incorporamus," or the like. Nay it is held, that if the king grants to a fet of men to have gildam mercatoriam, a mer cantile meeting or affembly P, this is alone fufficient to incorporate and establish them for ever 9. 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 houses of correction founded by charitable perfons, without farther trouble and the fame has been done in other cafes of charitable foundations. But otherwife 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 discouraged many ment 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 ftudents. 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 Gild fignified among the Saxons a fraternity, derived from the verb gildan to pay, because every man paid his fhare towards the expenfes of the community. And hence their place of meeting is frequently called the Guild or Guild ball. 9 10 Rep. 30. 1 Roll. Abr. 513 r2 Inft. 722. Bro. Abr. tit. Prevog. 53. Viner. t Yearbook, 2 Hen. VII. 13. legal legal acts; though a very minute variation therein is not material". Such name is the very being of it's constitution; 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 w. The name of incorporation, fays fir 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 fame name the king baptizes the incorporation *. 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 fuccession. 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 off". 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 purchase lands, and hold them, for the benefit of themfelves and their fucceffors; which two are confequential to the former. 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 exprefs their private confents 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 u Ibid. 122. z 10 Rep. 26. a 1 Roll. Abr. 514 ment |