ment of the corporation; which are binding upon themselves, unless 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 reafon is given to the natural body for the governing it, fo by-laws or ftatutes are a fort of political reafon to govern the body politic. 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 prerogative, 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 affife 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 practised, yet are very unneceffary to a corporation fole; viz. to have a corporate feal to teftify his fole affent, and to make statutes for the regulation of his own conduct.

THERE are alfo certain privileges and difabilities that attend an aggregate corporation, and are not applicable to fuch 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 perfonal 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 fuffer

ing a traitor's or felon's punishment, for it is not liable to corporal penalties, nor to attainder, forfeiture, or corruption of blood. It cannot be executor or administrator, 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 ufe of another;; for fuch kind of confidence is foreign to the end of it's inftitution. Neither can it be committed to prifon *; for it's exiftence being ideal, no man can apprehend or arreft it. And therefore alfo it cannot be outlawed; for outlawry always supposes a precedent right of arresting, which has been defeated by the parties abfconding, and that also a corporation cannot do : for which reafons 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 also it is not liable to be fummoned into the ecclefiaftical courts upon any account; for those courts act only pro falute animae, and their fentences can only be inforced by fpiritual cenfures: a confideration, which, carried to it's full extent, would alone demonftrate the impropriety of thefe courts interfering in any temporal rights whatsoever.

THERE are also 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 themselves and their fucceffors, but a fole corporation cannot": for fuch moveable property is liable to be loft or imbezzled, and would raise a multitude of difputes between the fucceffor and executor; which the law is careful to avoid. 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

Book I. lay, constituted for civil purposes, are subject to no particular ftatutes; 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 another neither are they then capable of receiving a grant; for fuch corporation is incomplete without a head P. But there may be a corporation aggregate conftituted without a head: as the collegiate church of Southwell in Nottinghamshire, which confifts only of prebendaries; and the governors of the Charter-houfe, London, who have no prefident or fuperior, but are all of equal authority. In aggregate corporations alfo, the act of the major part is esteemed the act of the whole. By the civil law this major part must have conffted of two thirds of the whole; elfe no act could be performed: which perhaps may be one reason 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 ftcod thus, fome founders of corporations had made statutes 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 obftruction 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 neceflary voice, given by the founder to the head of any fuch fociety.

WE before obferved that it was incident to every corporation, to have a capacity to purchase lands for themselves and

• Lord Raym. S.

p Co. Litt. 263, 264.

10 Rep. 30.

Bro. Abr. tit. Corporation. 31. 34

Ff. 3. 4. 3.

fucceffors:

W

:

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 ftatute 9 Geo. II. c. 36. And alfo, by a great variety of ftatutes, their privilege even of purchafing from any living grantor is much abridged : so 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 vefted 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 purchafes being ufually 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.

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 those difabling ftatutes of queen Elizabeth, which reftrain fpiritual and eleemofynary corporations from aliening fuch lands as they are at prefent 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

t 10 Rep. 30.

34 Hen. VIII. c. 5.

w Hob. 136.

incapable of taking lands, unlefs by fpecial privilege from the emperor: collegium, fi nullo fpeciali privilegis fubnixum

From magna carta, 9 Hen. III. fit, baereditatem capere non poffe, dubium

c. 36. to 9 Geo. II. c. 36.

y By the civil law a corporation was

non eft. Cod. 6. 24. 8.

BOOK I. reduced to this fingle one; that of acting up to the end or 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 such corporations, either fole or aggregate, and whether ecclefiaftical, civil, or eleemofynary. With regard to all ecclefiaftical corporations, the ordinary is their visitor, fo conflituted 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 bifhops; and the bifhops in their feveral diocefes are in ecclefiaftical matters the vifitors of all deans and chapters, of all parfons and vicars, and of all other spiritual corporations. With refpect 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 vifit a.

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 af figns, are the visitors of all lay corporations, let us inquire what is meant by the founder. The founder of all corporations in the ftrictest 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 poffeflions or endowments given to the body, there is no other founder but the king: but in eleemofynary foundations, fuch as colleges and hofpitals, where there is an endowment of lands, the law diftinguishes, and makes two fpecies of foun

210 Rep. 31.

dation;