Page images

society of the British fishery, so that in fact the king is the creator by means of his royal prerogative. All other methods, therefore, by which corporations exist, by common law, by prescription, and by act of parliament, are for the most part reduceable to this of the king's letters patent, or charter of incorporation. The king's creation may be performed by the words, creamus, erigimus, fundamus, incorporamus, or such like. Nay, it is even held, that if the king grants to a set of men to have a “mercantile meeting or assembly," it is alone sufficient to incorporate and establish them for ever. The king may grant the power of erecting corporations to a subject; that is, he may permit the subject to name the persons and powers of the corporation at his pleasure; but it is in reality the king who erects, and the subject is but his instrument; for though none but the king alone can make a corporation, yet he who acts by the instrumentality of another is himself the operator. 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 of tradesmen subservient to the students, which incorporations are at present subsisting, nevertheless it is still the king who in reality erects, only using the instrumentality of the chancellor.

II. When a corporation is erected, it is necessary that a name be given to it; and by that name alone it must sue and be sued, and do all legal acts. When a corporation is once formed and named, it acquires various powers, rights, capacities, or incapacities; some of which are incident to all corporations, such as the right of electing members to keep up perpetual succession, which is the very end and design of its incorporation; and therefore all aggregate corporations have a necessarily implied power in electing members in the place of those who die or are removed; the power of doing all such legal acts as natural persons may perform; to sue and be sued, implead or be impleaded, grant or receive by its corporate name, the same as an individual person; of purchasing lands and holding them for themselves and successors; of having a common seal, the affixing of which makes one joint assent of the whole community : for a corporation being an invisible body, cannot manifest its intention by any personal act or oral discourse, it otherwise acts and speaks only by its common seal; for though the particular members may express their private consents to any acts by words, or signing their names, yet these do not bind the corporation; it is the affixing of the common seal, and that only, which unites the several assents of the individuals composing the community, and makes a joint assent of the whole ; and of making bye-laws for the better government of the society; which laws, however, must not be contrary to the laws of the land, otherwise they are void. But no trading company in Great Britain is allowed to make bye-laws, which in any wise affect the

king's prerogative, or the common profit of the people, under a penalty of forty pounds, unless they be approved of 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. These powers are inseparably incident to all aggregate corporations; for although two of them may be practised by a corporation sole, yet they are very unnecessary, viz to have a corporate seal to testify his sole assent, and to make statutes for his own government. There are certain disabilities attached to aggregate corporations. They cannot commit treason or any other offence, in their corporate capacity, though they may as individual members.

Corporations have a capacity to purchase lands for themselves and successors; but they are excepted out of the statute of wills; so a devise of lands to a corporation is not good, except it be for charitable uses. And even their privilege of purchasing from any living granter is much abridged by several statutes; so that before they can exert that capacity with which they are invested by the common law, a corporation, either lay or ecclesiastical, must have a license to purchase from the king.

The particular duty of a corporation, is to act up to the end or design, whatever it be, for which it was created. But as all corporate bodies, like individuals, are frail and liable to err, the law has provided proper persons to visit, inquire into, and correct all improprieties and abuses that may arise in any corporation, whether sole or aggregate, and to rectify their irregularities or misconduct. Formerly the pope, but now the king, is the legal visitor of the archbishops of Canterbury and York; the archbishop has the charge of all the bishops in his province; and the bishops superintend all deans and chapters, parsons, vicars, and all other spiritual corporations in their respective dioceses. The founders, their heirs or assigns, are the visitors of all lay corporations, whether civil or eleemosynary.

By the founder of a corporation, in the strict and original sense of the term, the law understands to be the king, who alone can incorporate a suciety; so that in civil corporations, there is no other founder than the king. But in the case of eleemosynary foundations, such as colleges and hospitals, where there is an endowment of land, the right of visitation devolves by law to the patron or endower, his heirs and assigns.

The king exercises his jurisdiction over civil corporations in his court of king's bench, where alone all misbehaviours of this kind of corporations are inquired into and redressed. It is not, however, customary in professional language, to call this authority of the king's bench, a visitorial power. If the endower of an eleemosynary corporation appoint no one as a visitor, that office devolves on the bishop of the diocese. III. How a corporation may be dissolved. Any particular member of

a corporation may be disfranchised, or be deprived of his place in it, by acting contrary to the laws of the society, or the laws of the land, or he may voluntarily resign his rights and privileges. But the body politic itself may also be dissolved in several ways, which dissolution is its civil death; and when it becomes defunct, their lands and tenements revert to the person or his heirs who originally granted them to the corporation, because the law annexes a condition to every such grant, that if the corporation shall be dissolved, the granter shall have his lands again, on account of the failure of the cause of the grant. The grant continues indeed only during the existence of the corporation, which may endure for ever, but when that life is determined by the dissolution of the body politic, the granter takes it back by reversion, as in the case of any other grant for life.

Corporations may be dissolved by act of parliament, which is boundless in its operations; by the natural death of all its members, in cases of aggregate corporations; by surrender of their franchises into the king's hands; and by forfeiture of their charters, through negligence or abuse of their privileges; in which case the law judges that the body politic has broken the conditions on which it was incorporated, and therefore the incorporation is void. In the abuse of its franchise, a writ quo rearranto is granted to inquire by what warrant the members now exercise their corporate power, having forfeited it by such and such proceedings. When a corporation is dissolved, the endowment reverts to the heirs of the patron who endowed it. By such dissolution its debts, either to or by it, are totally extinguished, and its members are neither individually nor collectively accountable for them.

When king Charles II. enforced the law, by issuing the writ of quo warranto against the city of London, the other corporations throughout the kingdom surrendered their charters into the king's hands. He afterwards restored their charters under certain conditions. But after the Revolution, the statute 2 W. and M. reversed the judgment against the city of London, and enacted, that its franchises shall never more be forfeited for any cause whatever.* And because, by the common law, corporations were dissolved, in case the mayor or head officer was not duly elected on the day appointed in the charter, or by the custom established by prescription, it is now provided that in future no corporation shall be dissolved upon that account; and ample directions are given for appointing a new officer, in case there be no election, or a void one made upon the charter or prescriptive day.

On the 13th April, 1829, a bill passed both houses, after violent

* Custance on the Constitution.

debates, and received the king's consent, for admitting Roman Catholics into all the lay corporations in the kingdom, but reserved from the righe of interference with the ecclesiastical incorporations.*

The parliament which met at London, 8th May, 1661, enacted for the protection of the corporations, from the Roman Catholics and nonconformists becoming predominant in them, a law generally known as the corporation act. It is entitled “ an act for the well governing and regulating corporations,” and enacts,– " that within the several cities, corporations, boroughs, cinque ports, and other port towns within the kingdom of England, dominion of Wales, and town of Berwick on Tweed, all mayors, aldermen, recorders, bailiffs, town clerks, common council men, and other persons bearing any office or offices of magistracy, or places of trust, or other employment, relating to or concerning the government of the said respective cities, corporations, and boroughs and cinque ports, and their members, and other port towns, shall take the oaths of allegiance and supremacy, and this oath following:

“ I, A. B do declare and believe, that it is not lawful upon any pretence whatsoever, to take arms against the king; and that I do abhor that traitorous position of taking arms by his authority against his person, or against those that are commissioned by him.

“ They shall also subscribe the following declaration :

“ 1, A. B. do declare that there lies no obligation upon me from the solemn league and covenant; and that the same was an unlawful oath imposed on the subject against the lavis and liberties of the kingdom.

“ Provided also, and be it enacted by the authority aforesaid, that no person shall be hereafter elected or chosen into any of the offices or places aforesaid, that shall not have within one year next before such election or choice taken the sacrament of the lord's supper aceording to the rites of the church of England; and that every person so elected shall take the aforesaid oaths, and subscribe the said declaration, at the same time when the oath for the due execution of the said places and offices shall be respectively administered.”

This act excluded the dissenters in England from filling public offices either under the government or in boroughs, unless they had, within the compass of a year, taken the sacrament according to the rites of the church of England. Of this the dissenters loudly complained. But they always complied with the act; and communicated at their parish churches previous to entering into office. This they continued to do for many years, but in consequence of the dislike which conscientious men would naturally feel at communicating with a church from which they had dissented because they had conceived that it was not a true church, the act was so often evaded altogether, that, in the liberal opinions of the age, an act of indemnity was annually passed to save those from the penalties of the act who had either neglected or refused to communicate at the parish church. So that in effect this act lay almost a dead letter, and no one had of late years been in any way incommoded by it. Many attempts, however, were made to procure its repeal, at different times, especially in 1787, when it was warmly agitated in the house of commons, and pamphlets and other

* 10 Geo, IV., c vii., sec. 14, 15; for Relief of his Majesty's Roman Catholic Subjects: 13th April, 1829. See p. 328.

publications issued in abundance from the press on both sides of the question. In this debate Lord North contended that the test acts were and ought to be carried into execution, though he observed, “ there were instances in which persons had introduced themselves into corporations without taking the test, because they relied on the annual indemnity act, which saved them.” This sort of mental fraud,continued his lordship, “ did not recommend these persons to the indulgence of the legislature: it was an evasion and an abuse of an act of parliament, which solemnly and substantially required that the test should be given fairly and truly."

The first or corporation act, 13 Car. II., was passed, as we have said, in 1661, and its design was merely to prevent the adherents of Cromwell's government from getting possession of the corporations in the boroughs, and thereby to endanger the monarchy by their plotting to restore the repub lican commonwealth which had just then been subverted. Commissioners were appointed under the act to administer the oaths which it prescribes. The act of uniformity had not been at that time passed, and the dissenters made then little or no scruple of communicating either with each other or with the established church. It had been the custom among the earliest puritans to “ communicate with the church in word and sacraments," during the first part of the grand rebellion, when the presbyterians gained an ephemeral establishment in England. The independents did not object to communicate occasionally with the presbyterians, and to receive their members to communicate in return; and it is very remarkable, that out of fifty-six presbyterian members in the house of commons when the bill was passed, only two of them made objections to receiving the sacrament according to the rites of the established church, when it was administered " to see whether they were all protestants.” And even the Roman catholics communicated with the protestant episcopal church of England, in the earlier part of queen Elizabeth's reign, till they were commanded to abstain by a bull of pope Clement VIII.

The second of the statutes affecting protestant dissenters is the test act, by which they were excluded from places of civil and military trust and offices. This act was passed in 1672, and was the 25th of Charles II.; it was entitled “ An act for preventing danger which may happen from popish recusants.” It provided that any person admitted into office, or receiving pay from his majesty, or holding any command or place of trust under him, or in his household, shall, within three months (but three was afterwards extended to six months) receive the sacrament according to the usage of the church of England, and produce a certificate thereof, under the penalty of incapacity for the office, and avoidance of the appointment; and (in case of acting without compliance) of being subject on conviction, to disability for serving in any court of justice, from acting as a guardian,

« PreviousContinue »