CORPORATION, a body politic or incorporated, and so called because the persons or members are joined into one body, and are qualified to take, grant, convey, &c.

There is a great variety of subsisting corporations for the advancement of religion, learning, and commerce, in order to preserve entire those rights and immunities which, if they were granted only to the individuals of which the body corporate is composed, would upon their death be utterly lost and extinct. To show the characteristics of these incorporations, let us consider the case of a college in either of our universities, founded ad studendum et orandum, for the encouragement and support of religion and learning. If this was a mere voluntary assembly, the individuals who compose it might indeed read, pray, study, and perform scholastic exercises together, as long as they could agree to do so; but they could neither frame nor receive any laws or rules of their conduct which would have any binding force, for want of a coercive power to create a sufficient obligation; neither could they be capable of retaining any privileges or immunities; for, if such privileges were attacked, who of all this unconnected assembly would have the right or ability to defend them? and when they were dispersed by death or otherwise, how should they transfer these advantages to another set of students, equally unconnected as themselves? So also with regard to holding estates or other property, if land be granted for the purposes of religion or learning to twenty individuals not incorporated, there is no legal way of continuing the property to any other persons for the same purposes, except by endless conveyances from one to the other, as often as the hands are changed. But when they are consolidated and united into a corporation, they and their successors are then considered as one person in law; as one person they have a common will, which is collected from the sense of the majority of the individuals; and this one will may establish rules and orders for the regulation of the whole, which are a sort of municipal laws of this little republic: or rules and statutes may be prescribed to it at its creation, which are then in the place of natural laws. The privileges and immunities, the estates and possessions, of the corporation, when once vested in them, are vested for ever, without any new conveyance to new successions; and all the individual members who have existed from the foundation to the present time, or who shall hereafter exist, are but one person in law, a person that never dies; in like manner as the river Thames is still the same river, though the parts which compose it are changing every instant.

The original invention of these political constitutions seems to belong entirely to the Romans. They were introduced by Numa, who finding, upon his accession, the city torn to pieces by the two rival factions of Sabines and Romans, thought it a prudent and politic measure to subdivide these two into many smaller ones, by instituting separate societies of every manual trade and profession. They were afterwards much considered by the civil law, in which they were called universitates, as forming one whole out of many individuals; or collegia, from being gathered together. They were also adopted by the canon law, for the maintenance of ecclesiastical discipline; and from them our spiritual corporations are derived. But our laws have considerably refined and improved upon the invention, particularly with regard to sole corporations, consisting of one person only, of which the Roman lawyers had no notion; their maxim being that tres faciunt collegium ; though they held that if a corporation, originally consisting of three persons, be reduced to one, si universitas ad mum redit, it may still subsist as a corporation, et stet nomen universitatis.

As to the several sorts of corporations, the first division of them is into aggregate and sole. Corporations aggregate consist of many persons united together into one society, and they are kept up by a perpetual succession of members, so as to continue for ever. Of this kind are the mayor and commonalty of a city, the head and fellows of a college, the dean and chapter of a cathedral church. Corporations sole consist of one person only and his successors in some particular station, who are incorporated by law, in order to give them some legal capacities and advantages, particularly that of perpetuity, which in their natural persons they could not have possessed. In this sense the king is a sole corporation; so is a bishop; so are some deacons and prebendaries, distinct from their several chapters; and so is every parson and vicar. And the necessity, or at least use, of this institution will be apparent, if we consider the case of a parson of a church. At the original endowment of parish churches, the freehold of the church, the church-yard, the parsonage-house, the glebe, and the tithes of the parish, were vested in the then parson by the bounty of the donor, as a temporal recompense to him for his spiritual care of the inhabitants, and with intent that the same emoluments should ever afterwards continue as a recompense for the same care. But how was this to be effected? The freehold was vested in the parson; and if we suppose it vested in his natural capacity, on his death it might descend to his heir, and would be liable to his debts and incumbrances; or, at best, the heir might be compellable, at some trouble and expense, to convey these rights to the succeeding incumbent. The law, therefore, has wisely ordained, that the parson, quatenus parson, shall never die, any more than the king; and this has been effected by making him and his successors a corporation. By these means all the original rights of the parsonage are preserved entire to the successor; so that the present incumbent, and his predecessor who lived seven centuries ago, are in law one and the same person; and what was given to the one was given also to the other.

Another division of corporations, either sole or aggregate, is into ecclesiastical and lay. Ecclesiastical corporations are, where the members are entirely spiritual persons, such as bishops, certain deans and prebendaries, all archdeacons, parsons, and vicars, which are sole corporations; deans and chapters at present, and formerly prior and convent, abbot and monks, and the like, bodies aggregate. These were erected for the furtherance of religion, and perpetuating the rights of the church. Lay corporations, again, are of two sorts, civil and eleemosynary. The civil are such as are erected for a variety of temporal purposes. The king, for instance, is made a corporation, to prevent, in general, the possibility of an interregnum or vacancy of the throne, and to preserve the possessions of the crown entire; and hence, immediately upon the demise of one king, his successor is in full possession of the regal rights and dignity. Other lay corporations are erected for the good government of a town or particular district, as a mayor and commonalty, bailiff and burgesses, or the like; some for the advancement and regulation of manufactures and commerce, as the trading companies of London and other towns; and others for the better carrying on of divers special purposes, as church-wardens for conservation [7:7:375]of the goods of the parish; the College of Physicians and Company of Surgeons in London, for the improvement of the medical science; the Royal Society, for the advancement of natural knowledge; and the Society of Antiquaries, for promoting the study of antiquities. The eleemosynary corporations are those constituted for the perpetual distribution of the free alms or bounty of the founder of them, to such persons as he has directed. Of this kind are all hospitals for the maintenance of the poor, sick, and impotent, and all colleges, both in our universities and out of them. These colleges are founded for two purposes: first, for the promotion of piety and learning by proper regulations and ordinances; and, secondly, for imparting assistance to the members of those bodies, in order to enable them to prosecute their devotion and studies with greater ease and assiduity. And all these eleemosynary corporations are, strictly speaking, lay, and not ecclesiastical, even though composed of ecclesiastical persons, and although they in some things partake of the nature, privileges, and restrictions of ecclesiastical bodies.

Having thus marshalled the several species of corporations, let us next proceed to consider, first, how corporations in general may be created; secondly, what are their powers, capacities, and incapacities; and, thirdly, how they may be dissolved.

1, Corporations by the civil law seem to have been created by the mere act and voluntary association of their members; provided such convention was not contrary to law, for then it was illicitum collegium. It does not appear that the prince’s consent was necessary to be actually given to the foundation of them, but merely that the original founders of these voluntary and friendly societies (for they were little more) should not establish any meetings in opposition to the laws of the state.

But in England the king’s consent is absolutely' necessary' to the erection of any corporation, either implied or expressly given. The king’s implied consent is to be found in corporations which exist by force of the common law, to which our former kings are supposed to have given their concurrence; common law being nothing else but custom, arising from the universal agreement of the whole community. Of this sort are the king himself, all bishops, parsons, vicars, church-wardens, and some others; who by common law have ever been held (as far as our books can show us) to have been corporations, virtute officii ; and this incorporation is so inseparably annexed to their offices, that we cannot frame a complete legal idea of any of those persons, but we must also have an idea of a corporation, capable to transmit his rights to his successors, at the same time. Another method of implication whereby the king’s consent is presumed, is as to corporations by prescription, such as the city of London, and many others, which have existed 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 cannot show any legal charter of incorporation, yet in cases of such high antiquity the law presumes there once was one; and that, by the variety of accidents which a length of time may produce, the charter is lost or destroyed. The methods by which the king’s consent is expressly given, are either by act of parliament or charter. By act of parliament, of which the royal assent is a necessary ingredient, corporations may undoubtedly be created; but it is observable that most of those statutes which are usually cited as having created incorporations, do either confirm such as have been before created by the king, as in the case of the College of Physicians, erected by charter 10 FIenry VIII. which charter was afterwards confirmed in parliament; or they permit the king to erect a corporation in futuro, with such and such powers, as is the case of the Bank of England, and the Society of the British Fishery. So that the immediate creative act is usually' performed by the king alone, in virtue of his royal prerogative.

All the other methods, therefore, by which corporations exist, by common law, by prescription, 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, fundamus, incorporamus, or the like. Nay, it is held, that if the king grants to a set of men to have gil-dam mercatorium, a mercantile meeting or assembly, this alone is sufficient to incorporate and establish them for ever.

The king, it is said, may grant to a subject the power of erecting corporations, though the contrary was formerly' held; that is, he may permit the subject to name 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, fac'd per se. In this manner the chancellor to the university of Oxford has power by charter to erect corporations; and has actually 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 legal acts.

2. After a corporation is so formed and named, it acquires many powers and rights, which are next to be considered. Some of these arc necessarily and inseparably incident to every corporation; which incidents, as soon as a corporation is duly erected, are tacitly annexed of course. As, first, To have perpetual succession. This is the very end of its incorporation; for there cannot be a succession for ever without an incorporation; and therefore all aggregate corporations have a power necessarily implied of electing members in the room of such as go off. Secondly, 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. Thirdly, To purchase lands and hold them, for the benefit of themselves and their successors, which two are consequents of the former. Fourthly, To have a common seal; 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. Although the particular members may express their private consent 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. Fifthly, To make bye-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.

3. Any particular member may be disfranchised, or lose his place in the corporation, by acting contrary to the laws of the society, or the laws of the land; or he may resign it by his own voluntary act. But the body politic may also itself be dissolved in several ways, which dissolution is the civil death of the corporation; and in this case their lands and tenements revert to the person, or his heirs, who granted them to the corporation; for the law annexes a condition to every such grant, that if the corporation be dissolved, the granter shall have the lands again, because the cause of the grant has failed. The grant is indeed only during the life of the corporation, which may endure for ever; but when that life is determined to be the dissolution of the body politic, the granter [7:7:376]takes it back by reversion, as in the case of every other grant for life. The debts of a corporation, either to or from it, are totally extinguished by its dissolution; so that the members thereof cannot recover, or be charged with them, in their natural capacities: agreeably to that maxim of the law, Si quid universitati debetur, singulis non debetur ; nec, quod debet universitas, singuli debent.

A corporation may be dissolved, first, by act of parliament, which is boundless in its operations; secondly, by the natural death of all its members, in cases of an aggregate corporation; thirdly, by surrender of its franchises into the hands of the king, which is a kind of suicide; and, fourthly, by forfeiture of its charter through negligence or abuse of its franchises, in which case the law judges that the body politic has broken the conditions upon which it was incorporated, and therefore the incorporation is void.