gative or necessary voice given by the founder to the head of any such society. 16 We have before observed that it was incident to every corporation to have a capacity to purchase lands for themselves and successors; [479] and this is regularly true at the common law. (t) 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. e. 4.: (w) which exception is again greatly narrowed by the statute 9 Geo. 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 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, 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 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. The general duties of all bodies politic, considered in their cor[480] porate capacity, may, like those of natural persons, be reduced to this single one; that of acting up to the end or design, whatever it be for which they were erected by their founder. 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 u 34 Hen. VIII. c. 5. t 10 Rep. 30. w Hob. 136. x From magna charta. 9 Hen. III. c. 36. to 9 Geo. II. c. 36. y By the civil law a corporation was incapable of taking lands, unless by special privilege from the emperor collegium, sí nullo speciali privilegio subnízum sit, haereditatem capere non posse, dubium non est. Cod. 6. 24. 8. z 1 Iust 2. (16) Mr. Christian gives the following note: "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 gardianus et major pars sociorum, or magister, or præpositus et major pars; and it has been determined by the court of king's bench, Cowp. 377. and by the visitors of Clarehall, Cambridge, and also by the visitors of Dublin college, that this expression does not confer upon the warden, master, or provost, any negative; but that his vote must be counted with the rest, and that he is concluded by a majority of votes against him. "In 1 Strange, 54. the court of king's bench declared, that in the case of the city of London the mayor and common council have power to do acts, and yet the act of the majority of the common council is good, though the mayor dissents. "Major pars, or more than one half, must be present to make a corporate meeting; they are then divided into two parts, present and absent." 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 ecclesiastical, civil, or eleemosynary. With regard to all ecclesiastical 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 all other spiritual corporations. With respect to all 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,17 are visitors of all lay corporations, let us enquire 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 foundation; the one fundatio [481] 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 being thus constituted by the law visitor of all civil corporations, the law has also appointed the place wherein he shall exercise this jurisdiction, which is the court of king's bench; where, and where only, all misbehaviours of this kind of corporations are inquired into and redressed, and all their controversies decided. And this is what I understand to be the meaning of our lawyers, when they say that these civil corporations are liable to no visitation; that is, that the law having by immemorial usage appointed them to be visited and inspected by the king their founder, in his majesty's court of king's bench, according to the rules of the common law, they ought not to be visited elsewhere, or by any other authority. (c) And this is so strictly true, that though the king by his letters patent had subjected the college of physicians to the visitation of four very respectable persons, the lord chancellor, the two chief justices, and the chief baron; though the college e This notion is perhaps ton refined. The court of king's bench (it may be said), from its general su perintendent authority where other jurisdictions are deficient, has power to regulate all corporations where no visitor is appointed. But not in the light of visitor: for as its judgments are liable to be reversed by writs of error, it may be thought to want one of the essential marks of visitatorial power. (17) And in default of these the king. 4 T. R. 223. had accepted this charter with all possible marks of acquiescence, and had acted under it for near a century; yet in 1753, the authority of this [482] provision coming in dispute, on an appeal preferred to these suppos ed visitors, they directed the legality of their own appointment to be argued; and, as this college 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 appellant (if ag grieved) 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 bishops 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. still, if the founder appoints nobody, the bishop of the diocese must visit. (e) But 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 [483] the diocese. This is evident, because in many of our most ancient 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 comprized, has immemorially exercised visitatorial authority; which can be ascribed to nothing else, but his supposed title as ordinary to visit this, among other ecclesiastical foundations. it is not impossible, that the number of colleges in Cambridge, which are visited by the bishop of Ely, may in part be derived from the same original. And But, whatever might formerly be the opinion of the clergy, it is now held as established common law, that colleges are lay corporations, though sometimes totally composed of ecclesiastical persons; and that the right of visitation does not arise from any principles of the canon law, but of necessity was created by the common law. (f) And yet the power and jurisdiction of visitors in colleges was left so much in the dark at common law, that the whole doctrine was very unsettled till the famous case of Philips and d Year book, 8 Edw. III. 28. 8 Ass. 29. e 2 Inst. 725 f Lord Raym. E. Bury. (g) In this the main question was, whether the sentence of the bishop of Exeter, who (as visitor) had deprived doctor Bury the rector of Exeter college, could be examined and redressed by the court of king's bench. And the three puisné judges were of opinion, that it might be reviewed, for that the visitor's jurisdiction could not exclude the common law; and accordingly judgment was given in that court. But the lord chief justice Holt was of a contrary opinion; and held that by the common law the office of visitor is to judge according to the statutes of the college, and to expel and deprive upon just occasions, and to hear all appeals of course: and that from him, and him only, the party aggrieved ought to have redress; the founder having reposed in him so entire a confidence, that he will administer justice impartially, that his determinations are final, and examinable in no other court whatsoever. And, upon this, a writ of [484] error being brought into the house of lords, they concurred in sir John Holt's opinion, and reversed the judgment of the court of king's bench. To which leading case all subsequent determinations have been conformable. But, where the visitor is under a temporary disability, there the court of king's bench will interpose, to prevent a defect of justice. (h) And also it is said, (i) that if a founder of an eleemosynary foundation appoints a visitor, and limits his jurisdiction by rules and statutes, if the visitor in his sentence exceeds those rules, an action lies against him; but it is otherwise, where he mistakes in a thing within his power. IV. We come now, in the last place, to consider how corporations may be dissolved. 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. (k) 18 But the g Lord Raym. 5. 4 Mod. 106. Show, 35. Skinn. 407. Salk. 403. Carthew, 180. (18) Every member or officer of a corporation may resign his place or office. 2 Rol. 456. L. 10. 1 Sid. 14. Sembl. Cont. 1 Rol. 137. Pop. 134. 2 Rol. 11. And a corporation has power to take such resignation. 1 Sid. 14. A resignation by parol, if entered and accepted, is sufficient. 2 Salk. 433. Accepting another office incompatible with the other, implies a resignation. 3 Burr. 1615. If a resignation be once accepted, the party cannot afterwards claim to be restored. 1 Sid. 14. 2 Salk. 433. A corporation may for good cause remove an officer from his office, 2 Stra. $19. Sir T. Ray. 439., and this is incident to a corporation without charter or prescription, 1 Burr. 517. sed. vid. 11 Co. 99. a. Style. 477. 480. 1 Lord. Ray. 392. 2 Kyd. 50. &c.; a mandamus lies to compel a removal. 4 Mod. 233. If the member do any thing contrary to the duty of his place or oath he is removable, 11 Co. 99. a.; if an alderinan be a common drunkard he is removable for it, 2 Roll. 455. 1. 20. Dub. 1. Rol. 409.; so if he removes from the borough and refuses attendance without lawful excuse. 4 Mod. 36. Semb. Show. 259. 4 Burr. 2087. and see further 9 Co. 99. Sir T. Raym. 438. Sty. 479. From the decisions on this subject, it appears that mere non-residence without any particular inconvenience arising to the corporation from it, and where the charter does not require it, is no cause for removal. See cases collected in 3 B. & C. 152. And a corporate office does not become ipso facto vacant by the non-residence of the corporator; a sentence must be passed. 2 T. R. 772. Where a charter does not require the members of a corporation to be resident, the court will not grant a mandamus commanding the corporation to meet and consider of the propriety of removing from their offices non-resident corporators, unless their absence has been productive of some serious inconvenience. S B. & C. 152. Where the charter of a borough directed that when any of the capital burgesses should happen to die or dwell out of the borough or be removed, it should be lawful for the remainder to elect others in the place of those so happening to die or be removed, omitting the intermediate circumstance of dwelling out of the borough, it was held that these words were not so unambiguous as to warrant the court to interfere, by granting a mandamus calling on the mayor and burges. ses to elect and swear in two capital burgesses in the room of two non-resident capital burgesses who had not been previously removed by the corporation from their offices for the purpose of taking this matter into consideration. 3 B. & A. 590. It is not a good cause that he attempted to act contrary to his duty. 11. Co. 98. b. As if he threatens the ruin of the charter or privileges, 11 Co. 97. b. ; or dissuades the payment of customs due. Id. An indictment being preferred against him is no cause of itself of removal before he is convicted, Sty. 479.; but if he be guilty of an indictable offence he may be removed. R. T. Hardw. 153. It is not a good 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 shall revert to the person or his heirs, who granted them to the corporation: for the law doth annex a condition to every such grant, that if the corporation be dissolved, the grantor shall have the lands again, because the cause of the grant faileth. (1) The grant is indeed only during the life of the corporation; which may endure for ever: but when that life is determined by the dissolution of the body politic, the grantor takes it back by reversion, as in the case of every other grant for life. 19 The debts of a corporation, 1 Co. Litt. 15. cause of removal that an alderman is above seventy years of age, 2 Rol. 456. 1. 5. 2 Roll. 11.; that he misbehaved himself when a mayor, Sty. 151. Sembl.; or did not account for money received by him to the use of the corporation, Sty. 151.; or wrote a letter to a secretary of state which charged the mayor with subornation. Carth. 174. Bankruptcy is no cause of removal. 2 Burr. 723. Words to the chief inagistrate contra bonos mores, &c. are no cause for disfranchisement, 11 Co. 96, 97, 98, 99. a. ; nor is a refusal to pay his proportion for the renewal of the charter, 1 Sid. 282.; nor refusing to make the usual payments for support of the company. Semble. Cont. Ray. 446. A defect in original qualification is no cause for removal, Dougl. 80, 81. 85, and see further as to what is a cause for removal, 2 Kyd. 69 to 94. A ministerial officer chosen durante bene placito may be removed ad libitum, as a town-clerk, 1 Ventr. 77. 82. Ray. 188. 1 Lev. 291.; a recorder, 1 Vent. 242. 2 Jones, 52. And a custom to remove an officer ad libitum is good, Dy. 332. b. Cro. 540. J. 2 Salk. 430.; but generally an officer cannot be removed without good cause, though the charter says generally he may be removed, Dy. 332. b. or though it says he may be chosen for life si viderint expedire. 1 Lev. 148. If however a charter by express words empower either the corporation at large or a se lect body to remove an officer at pleasure, or empower them to choose him during pleasure, they may in either case remove him without cause. Sir T. Jones, 52. 3 Keb. 667. Sir 'I'. Raym. 188. Though the election be general, if it be not under the common seal, the officers thereby elected may be removed ad libitum. 2 Jones, 52. 1 Vent. 355. A common freeman cannot in any case be deprived of his freedom ad libitum of the corporation at large, or of any select body. Cro. J. 540. Sir Ty. Raym. 188. 1 Lord Ray. 391. A removal must in general be by the act of the whole body. If a special power to remove be delegated to part of the body it must be shewn. Cowp. 502, 3, 4. Dougl. 149. To this power of amotion the power of holding a corporate meeting for that purpose is necessarily incident. Dougl. 153, 5. A party cannot be removed but by the corporate act under seal. 5 Mod. 259. There must be a summons for the mayor, &c. expressly to meet for the purpose of deciding as to the removal, 1 Stra. 385., and every member of the assembly must be summoned where a summons is necessary. 2 Stra. 1051. A power reserved to the crown in a charter of incorporation to amove by order of council one or more of the corporators, which charter also declared that all or any of them so amoved should actually and without further process be amoved, and which also provided at the same time that upon such amotion the remaining corporators might proceed to fill up the vacancies, cannot be exercised to such an extent as not to leave a sufficient number to make a re-election, and therefore an amoval of all was held to be void, 2 T. R. 568.; but that judgment was reversed in Dom. Proc. 4 T. R. 122 A corporation cannot in general amove a member without summoning the party to answer for himself and hearing him, for he may have a good excuse. 11. Co. 99. a. 1 Sid. 14. In some cases this may be dispensed with, and where non-residence is a good cause of amotion, it is unnecessary before proceeding to amove the party, to summon him to come and reside. Dougl. 149. But if he be removable for non-attendance at the corporate assemblies, he must have had personal notice to attend, and that his presence was necessary: the usual notice of the intended meeting will not be sufficient unless that usual notice be personal. 1 Burr. 517. 527, 540. Where an officer is removable ad libitum, he may be removed without summons or hearing of him, &c. 1 Sid. 15. 1 Lev. 291. In general the summons should shew the particular charge alleged against the party to be amoved, 11 Co. 99. a. 4 Mod. 33. 37. ; but sometimes this is unnecessary, 1 Lord Raym. 225. 2 ed. 1240, especially where the party by his act dispenses with it. 2 Burr. 723. 1 Kyd. 447. 439. If a member be improperly amoved a mandamus lies. Com Dig. Mandamus, A. &c. Where it is confessed that a man has been rightly removed from an office, the court will not grant a mandamus for a restoration, though he had no notice to appear and defend himself. Cowp, 523, 2 T. R.177. An order of restoration of a corporator illegally disfranchised, relates to the original right. Cowp. 503. Chilly (19) But if a corporation have granted over their possessions to another before their dissolution, they do not return to the donor. 1 Rol. 816. 1. 10. 20. and vide the cases collected in Bac. Ab. Corp. J.; if lands are given to a corporate body and it is dissolved, they will revert to the donor and not escheat. 9 Mod. 226. |