The early English decisions, beginning with the famous case of James Bagg, reported by Lord COKE, 11 Rep. 93, were cases of amotion or disfranchisement in public or municipal corporations. In Bagg's Case, it was resolved by the Court of King's Bench that the power of disfranchisement could only be exercised under authority given by express words in the charter, or by prescription; and where no such express authority existed, there must be a conviction of some offence in a court of law before the offender could be disfranchised.

As corporations however grew more numerous, and their character and purposes essentially changed, it was found that this limitation of power was too narrow to meet the cases then arising, and in what may be called the second leading case on the subject, Rex v. Richardson, 1 Burr. 517, it was decided that a corporation may make a by-law giving power of amotion for just cause, though the corporation that made it had no power of amotion expressly given by charter or claimed by prescription. Lord MANSFIELD in delivering judgment said: "There are three sorts of offences for which an officer or corporator may be discharged :

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"1. Such as have no immediate relation to his office, but are themselves of so infamous a nature as to render the offender unfit to execute any public franchise.

"2. Such as are only against his oath and the duty of his office as a corporator; and amount to breaches of the tacit condition annexed to his franchise or office. "3. Offences of a mixed nature-as being an offence not only against the duty of his office, but also a matter indictable at the common law." The power of amotion, therefore, he said, was incident to every corporation, though the manner in which it should be exer

cised might differ according to the distinction made in offences. For the first class of offences a corporator can only be amoved after conviction in a court of law; but for the second sort, the power of trial as well as removal is incident to every corporation.

The reasoning and authority of Lord MANSFIELD, in Rer v. Richardson, have been followed with great uniformity in subsequent cases both in England and America, though the courts have shown a strong tendency to restrict the exercise of the power of expulsion for causes of the second class to cases of acts directly and unequivocally against the very purpose and existence of the corporation. The leading American case is Commonwealth v. President of St. Patrick Benevolent Society, 2 Binn. 441 (1810). The society was a charitable corporation, for the purpose of raising funds to assist its members in sickness, &c. By the charter it was authorized to make rules and by-laws, and to do everything needful for the good government and support of the corporation. A by-law enacted, that "vilifying any of its members" should be a crime against the society, and might be punished by expulsion. The relator was expelled for this offence. The proceedings were regular, and the case turned on the validity of the by-law. The court, by TILGHMAN, C. J., held the by-law void, on the ground that private quarrels of members were totally unconnected with the purposes of the society, and such a by-law therefore was not necessary for its good government and support, and awarded a peremptory mandamus to restore the relator.

It is very clear that the character of an act considered as an offence of the second class enumerated by Lord MANSFIELD, depends materially on the nature and purpose of the corporation itself. Money corporations properly so called, that is corporations whose primary object

is the acquisition of property or profit for its members, stand on a very different basis from those in which profit to individual members has no part, and in which acquisition of property in the corporation itself is merely incidental to its real purposes and objects. In the former, it is conceded that the power of expulsion can only be exercised under express authority derived from the charter: Angell & Ames on Corp.

113, 410. But even in the latter class, the courts have uniformly treated membership as a vested right which they would protect from illegal or irregular interference. Thus, in Fuller v. Trustees of Plainfield Academy, 6 Conn. 532, it was held that the place of a trustee in an eleemosynary corporation, though no emoluments are attached to it, is yet a franchise of such nature that a person improperly dispossessed of it is entitled to redress, and a peremptory mandamus was awarded. So in People ex rel. Gray v. Medical Society of Erie, 24 Barb. 570. The medical society established a feebill, and provided by a by-law that any member taking a smaller fee than the one prescribed in the fee-bill might be expelled. The society had by statute the right to make by-laws regulating the admission and expulsion of members. The relator was expelled by the society for violation of the fee-bill, and on mandamus the court ordered him restored, on the ground that the by-law was not one within the proper powers of the society.

To the same effect are the numerous cases cited by the counsel for the relator in the principal case, and also Evans v. The Philadelphia Club, 14 Wright (50 Penn.) 107, a very interesting case, which was argued with great earnestness by very able counsel on both sides. The decision being unfortunately by a divided court, with no reasons assigned, has not the authority to which it would otherwise be entitled.

The course of reasoning, therefore, by which the learned judge in the principal case refines away the rights of the relator, cannot be considered as supported by authority, nor can the denial of the remedy by mandamus. It was decided by Lord MANSFIELD in Rex v. Barker, 3 Burr. 1265, that mandamus is the proper remedy, and this has been uniformly followed both in England and America.

The result of the adjudicated cases on the subject of amotion and disfranchisement, would seem to reduce the power of expulsion within very narrow limits. Social clubs, however, being of very recent origin, and scientific or literary societies having a social basis and character having of late grown into importance, it must be expected that the cases arising hereafter in reference to such societies cannot be fairly brought within the stringent rules in regard to expulsion of members, which have been found just and satisfactory hitherto. As the change in times and manners from Lord COKE to Lord MANSFIELD led the King's Bench to the distinctions taken between Bagg's Case and Rex v. Richardson, so the changes of the last century must bring the courts to a more liberal application of the principles of the latter case.

The true and solid ground on which to decide such cases is, as it seems to us, the contract of membership, liberally construed with reference to the purposes of the corporation or society. The classification of Lord MANSFIELD is sufficiently comprehensive. "Secondly," he says, "such as are against the duty of his office as a corporator; and amount to breaches of the tacit condition annexed to his franchise." Whether an act be such a breach or not should be judged entirely by its effect on the society; and if by his assent to the laws and rules of the society, a member has agreed that the corporation, or any part of it, shall be the tribunal to decide the

fact, then the courts instead of being astute to discover defects of jurisdiction (as it must be confessed they have in many of the American cases), should aim liberally to support the judgment of the tribunal agreed upon.

In the latest English case on this subject, Hopkinson v. Marquis of Exeter, Law Rep. 5 Eq. 63, the complainant being a member of the Conservative Club, had given pledge that he would vote for certain liberal candidates at the parliamentary election, and for this he was expelled from the club. The rules of the club made no reference to the political opinions of its members, except so far as they were implied from its name. Lord ROMILLY, M. R., refused to restore the complainant, on the ground that he had submitted to the jurisdiction of the club by becoming a member, and the proceedings had been regular according to the by-laws. A club, he said, was a partnership, but of a different kind from any other; and the members had by rules constituted a tribunal for the decision of questions of membership and expulsion. "The question is, whether there is any appeal from that decision.

It is clear that every member has contracted to abide by that rule which gives an absolute discretion to two-thirds of the members present to expel any member. Such discretion, like that referred to by Lord ELDON in White v. Damon, 7 Ves. 35, must not be a capricious or arbitrary discretion. But if the decision has been arrived at bona fide, without any caprice or improper motive, then it is a judicial opinion from which there is no appeal."

It does not appear from the report whether the club was incorporated or not; but, putting the decision fairly on the contract of the member to abide by the judgment of the tribunal established by the by-laws, we are unable to perceive that the fact of incorporation is at all material.

If the decision in the principal case had been rested on the by-law quoted, and the regularity of proceedings under it, we think it would have stood on a basis of sound reason, and have been strictly within the principle of Lord MANSFIELD's judgment in Rex v. Richardson.

J. T. M.