body. And whereas, notwithstanding the law stood thus, some founders of corporations had made statutes in derogation of the common law, making very frequently the unanimous assent of the society to be necessary to any corporate act, which King Henry VIII. found to be a great obstruction to his projected scheme of obtaining a surrender of the lands of ecclesiastical corporations; it was therefore enacted by statute 33 Hen. VIII. c. 27, that all private statutes shall 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 statute extends not to any negative or necessary voice, given by the founder to the head of any such society (18). We before observed, that it was incident to every corporation to have a capacity to purchase lands for themselves and successors: and this is regularly true at the common law (t). [ *479 ] But they are excepted out of the statute of wills (u): so that no devise of lands to a corporation by will is good, except for charitable uses, by statute 43 Eliz. c. 4 (w); which exception is again greatly narrowed by the statute 9 George II. c. 36. And also, by a great variety of statutes (x), their privilege even of purchasing from any living grantor is much abridged: so that now a corporation, either ecclesiastical or lay, must have (t) 10 Rep. 30. (u) 34 Hen. VIII. c. 5. (w) Hob. 136. (x) From magna carta, 9 Hen. III. c. 36, to 9 Geo. II. c. 36. (18) This act clearly vacates all private statutes, both prior and subsequent to its date, which require the concurrence of more than a majority to give validity to any grant or election. The learned judge is of opinion, that it has not affected the negative given by the statutes to the head of any society; but I am inclined to think this opinion may be questioned; especially in cases where, in the first instance, he gives his vote with the members of the society. It is the usual language of college statutes to direct that many acts shall be done by guar- Statutes of mortmain. General duties of all bodies politic. a licence from the king to purchase (y), before they can exert that capacity which is vested in them by the common law: nor is even this in all cases sufficient. These statutes are generally called the statutes of mortmain; all purchases made by corporate bodies being said to be purchases in mortmain, in mortua manu: for the reason of which appellation Sir Edward Coke (2) offers many conjectures; but there is one which seems more probable than any that he has given us; viz. that these purchases being usually made by ecclesiastical bodies, the members of which (being professed) were reckoned dead persons in law, land therefore holden by them might with great propriety be said to be held in mortua manu. I shall defer the more particular exposition of these statutes of mortmain till the next book of these Commentaries (19), when we shall consider the nature and tenures of estates; and also the exposition of those disabling statutes of Queen Elizabeth, which restrain spiritual and eleemosynary corporations from aliening (20) such lands as they are at present in legal possession of: only mentioning them in this place, for the sake of regularity, as statutable incapacities incident and relative to corporations. be The general duties of all bodies politic, considered in their corporate capacity, may, like those of natural persons, [ *480 ] *reduced to this single one, that of acting up to the end or design, whatever it be, for which they were created by their founder. III. Corporations how visited. III. I proceed therefore next to inquire, how these corporations may be visited. For corporations being composed of individuals, subject to human frailties, are liable, as well as private persons, to deviate from the end of their institution. And for that reason the law has provided proper persons to visit, inquire into, and correct all irregularities that arise in such corporations, either sole or aggregate, and whether eccle (y) By the civil law, a corporation was incapable of taking lands, unless by special privilege from the emperor: Collegium, si nullo speciali privilegio subnixum sit, hæreditatem capere posse, dubium non est. (Cod. 6. 24. 8). (2) 1 Inst. 2. (19) See Vol. 2, p. 268. (20) See Vol. 2, p. 290, n.; and p. 320. porations. siastical, civil, or eleemosynary. With regard to all ecclesias- Ecclesiastical cortical corporations, the ordinary is their visitor, so constituted by the canon law, and from thence derived to us. The pope formerly, and now the king, as supreme ordinary, is the visitor of the archbishop or metropolitan; the metropolitan has the charge and coercion of all his suffragan bishops; and the bishops in their several dioceses are in ecclesiastical matters the visitors of all deans and chapters, of all parsons and vicars, and of all other spiritual corporations. With respect to all Lay corporations. lay corporations, the founder, his heirs or assigns, are the visitors, whether the foundation be civil or eleemosynary; for in a lay incorporation the ordinary neither can nor ought to visit (a). I know it is generally said, that civil corporations are subject to no visitation, but merely to the common law of the land; and this shall be presently explained. But first, as I have laid it down as a rule that the founder, his heirs or assigns, are the visitors of all lay corporations, let us inquire what is meant by the founder. The founder of all corporations, in the strictest and original sense, is the king alone, for he only can incorporate a society; and in civil incorporations, such as mayor and commonalty, &c., where there are no possessions or endowments given to the body, there is no other founder but the king: but in eleemosynary foundations, such as colleges and hospitals, where there is an endowment of lands, the law distinguishes, and makes two species of *founda- [ *481 ] tion; the one fundatio incipiens, or the incorporation, in which sense the king is the general founder of all colleges and hospitals; the other fundatio perficiens, or the dotation of it, in which sense the first gift of the revenues is the foundation, and he who gives them is in law the founder: and it is in this last sense that we generally call a man the founder of a college or hospital (b). But here the king has his prerogative: for, if the king and a private man join in endowing an eleemosynary foundation, the king alone shall be the founder of it. And, in general, the king being the sole founder of all civil corporations, and the endower the perficient founder of all eleemosynary ones, the right of visitation of the former results, according to the rule laid down, to the king; and of the latter to the patron or endower. The king the corporations. visitor of all civil The king being this customer IN HE THUS CÀ corporations, the aw has a apomet the LTE WASTED B shall exercise this jurisdictam Bench; where, and where on 1, al muselors this kind of corporations are mouret mu and all their controversies decided understand to be the meaning of our inves what the g that these civil corporations are hate statio: 18 is, that the law having by immemoria usage abonnet the to be visited and inspected by the king her foumos. I his majesty's court of King's Beach, according af te we of the common law, they ought not to be visnet estviet or by any other authority (e). And this is st SITKIN THEŁ that, though the king by his letters patent had subject the college of physicians to the visitation of four ways spectable persons, the lord chancellor, the two che pistes and the chief baron; though the college had accepted as charter with all possible marks of acquiescence, and mai acted under it for near a century; yet in 1753, the ashrity of this provision coming in dispute, on an appeal pre [ *42] ferred to these supposed *visitors, they directed the legy of their own appointment to be argued; and, as this codege was merely a civil and not an eleemosynary foundation, they at length determined, upon several days' solemn debate, that they had no jurisdiction as visitors; and remitted the appel lant, if aggrieved, to his regular remedy in his majesty's court of King's Bench. As to eleemosynary corporations, by the dotation the founder and his heirs are of common right the legal visitors, to see that such property is rightly employed, as might otherwise have descended to the visitor himself: but, if the founder has appointed and assigned any other person to be visitor, then his assignee so appointed is invested with all the founder's power, in exclusion of his heir. Eleemosynary corporations are chiefly hospitals, or colleges in the universities. These were all of them considered, by the popish clergy, as of mere ecclesiastical jurisdiction: however, the law of the land judged otherwise; and, with regard to hospitals, it has long been held (d), that, if the hospital be spiritual, the bishop shall visit; but if lay, the patron. This right of lay patrons was indeed abridged by statute 2 Hen. V. c. 1, which ordained that the ordinary should visit all hospitals founded by subjects; though the king's right was reserved to visit by his commissioners such as were of royal foundation. But the subject's right was in part restored by statute 14 Eliz. c. 5, which directs the bishop to visit such hospitals only where no visitor is appointed by the founders thereof: and all the hospitals founded by virtue of the statute 39 Eliz. c. 5, are to be visited by such persons as shall be nominated by the respective founders. But still, if the founder appoints nobody, the bishop of the diocese must visit (e). Colleges in the universities (whatever the common law may now, or might formerly, judge) were certainly considered by the popish clergy, under whose direction they were, as ecclesiastical, or at least as clerical, corporations; and therefore the right of visitation was claimed by the ordinary of the diocese. [483] This is evident, because in many of our most antient colleges, where the founder had a mind to subject them to a visitor of his own nomination, he obtained for that purpose a papal bull to exempt them from the jurisdiction of the ordinary; several of which are still preserved in the archives of the respective societies. And in some of our colleges, where no special visitor is appointed, the bishop of that diocese, in which Oxford was formerly comprised, has immemorially exercised (d) Year Book, 8 Edw. III. 28; 8 Ass. 29. (e) 2 Inst. 725. |