Chapter 42

THE power and reciprocal duty of a guardian and ward are the same, _pro tempore_, as that of a father and child; and therefore I shall not repeat them: but shall only add, that the guardian, when the ward comes of age, is bound to give him an account of all that he has transacted on his behalf, and must answer for all losses by his wilful default or negligence. In order therefore to prevent disagreeable contests with young gentlemen, it has become a practice for many guardians, of large estates especially, to indemnify themselves by applying to the court of chancery, acting under it's direction, and accounting annually before the officers of that court. For the lord chancellor is, by right derived from the crown, the general and supreme guardian of all infants, as well as idiots and lunatics; that is, of all such persons as have not discretion enough to manage their own concerns. In case therefore any guardian abuses his trust, the court will check and punish him; nay sometimes proceed to the removal of him, and appoint another in his stead[p].

[Footnote p: 1 Sid. 424. 1 P. Will. 703.]

2. LET us next consider the ward, or person within age, for whose assistance and support these guardians are constituted by law; or who it is, that is said to be within age. The ages of male and female are different for different purposes. A male at _twelve_ years old may take the oath of allegiance; at _fourteen_ is at years of discretion, and therefore may consent or disagree to marriage, may choose his guardian, and, if his discretion be actually proved, may make his testament of his personal estate; at _seventeen_ may be an executor; and at _twenty one_ is at his own disposal, and may aliene his lands, goods, and chattels. A female also at _seven_ years of age may be betrothed or given in marriage; at _nine_ is entitled to dower; at _twelve_ is at years of maturity, and therefore may consent or disagree to marriage, and, if proved to have sufficient discretion, may bequeath her personal estate; at _fourteen_ is at years of legal discretion, and may choose a guardian; at _seventeen_ may be executrix; and at _twenty one_ may dispose of herself and her lands. So that full age in male or female, is twenty one years, which age is completed on the day preceding the anniversary of a person's birth[q]; who till that time is an infant, and so stiled in law. Among the antient Greeks and Romans _women_ were never of age, but subject to perpetual guardianship[r], unless when married, "_nisi convenissent in manum viri_:" and, when that perpetual tutelage wore away in process of time, we find that, in females as well as males, full age was not till twenty five years[s]. Thus, by the constitutions of different kingdoms, this period, which is merely arbitrary, and _juris positivi_, is fixed at different times. Scotland agrees with England in this point; (both probably copying from the old Saxon constitutions on the continent, which extended the age of minority "_ad annum vigesimum primum, et eo usque juvenes sub tutelam reponunt_[t]") but in Naples they are of full age at _eighteen_; in France, with regard to marriage, not till _thirty_; and in Holland at _twenty five_.

[Footnote q: Salk. 44. 625.]

[Footnote r: Pott. Antiq. l. 4. c. 11. Cic. _pro Muren._ 12.]

[Footnote s: _Inst._ 1. 23. 1.]

[Footnote t: Stiernhook _de jure Sueonum._ _l._ 2. _c._ 2. This is also the period when the king, as well as the subject, arrives at full age in modern Sweden. Mod. Un. Hist. xxxiii. 220.]

3. INFANTS have various privileges, and various disabilities: but their very disabilities are privileges; in order to secure them from hurting themselves by their own improvident acts. An infant cannot be sued but under the protection, and joining the name, of his guardian; for he is to defend him against all attacks as well by law as otherwise[u]: but he may sue either by his guardian, or _prochein amy_, his next friend who is not his guardian. This _prochein amy_ may be any person who will undertake the infant's cause; and it frequently happens, that an infant, by his _prochein amy_, institutes a suit in equity against a fraudulent guardian. In criminal cases, an infant of the age of _fourteen_ years may be capitally punished for any capital offence[w]: but under the age of _seven_ he cannot. The period between _seven_ and _fourteen_ is subject to much incertainty: for the infant shall, generally speaking, be judged _prima facie_ innocent; yet if he was _doli capax_, and could discern between good and evil at the time of the offence committed, he may be convicted and undergo judgment and execution of death, though he hath not attained to years of puberty or discretion[x]. And sir Matthew Hale gives us two instances, one of a girl of thirteen, who was burned for killing her mistress; another of a boy still younger, that had killed his companion, and hid himself, who was hanged; for it appeared by his hiding that he knew he had done wrong, and could discern between good and evil; and in such cases the maxim of law is, that _malitia supplet aetatem_.

[Footnote u: Co. Litt. 135.]

[Footnote w: 1 Hal. P.C. 25.]

[Footnote x: 1 Hal. P.C. 26.]

WITH regard to estates and civil property, an infant hath many privileges, which will be better understood when we come to treat more particularly of those matters: but this may be said in general, that an infant shall lose nothing by non-claim, or neglect of demanding his right; nor shall any other _laches_ or negligence be imputed to an infant, except in some very particular cases.

IT is generally true, that an infant can neither aliene his lands, nor do any legal act, nor make a deed, nor indeed any manner of contract, that will bind him. But still to all these rules there are some exceptions; part of which were just now mentioned in reckoning up the different capacities which they assume at different ages: and there are others, a few of which it may not be improper to recite, as a general specimen of the whole. And, first, it is true, that infants cannot aliene their estates: but[y] infant trustees, or mortgagees, are enabled to convey, under the direction of the court of chancery or exchequer, the estates they hold in trust or mortgage, to such person as the court shall appoint. Also it is generally true, that an infant can do no legal act: yet an infant who has an advowson, may present to the benefice when it becomes void[z]. For the law in this case dispenses with one rule, in order to maintain others of far greater consequence: it permits an infant to present a clerk (who, if unfit, may be rejected by the bishop) rather than either suffer the church to be unserved till he comes of age, or permit the infant to be debarred of his right by lapse to the bishop. An infant may also purchase lands, but his purchase is incomplete: for, when he comes to age, he may either agree or disagree to it, as he thinks prudent or proper, without alleging any reason; and so may his heirs after him, if he dies without having completed his agreement[a]. It is, farther, generally true, that an infant, under twenty one, can make no deed that is of any force or effect: yet[b] he may bind himself apprentice by deed indented, or indentures, for seven years; and[c] he may by deed or will appoint a guardian to his children, if he has any. Lastly, it is generally true, that an infant can make no other contract that will bind him: yet he may bind himself to pay for his necessary meat, drink, apparel, physic, and such other necessaries; and likewise for his good teaching and instruction, whereby he may profit himself afterwards[d]. And thus much, at present, for the privileges and disabilities of infants.

[Footnote y: Stat. 7 Ann. c. 19.]

[Footnote z: Co. Litt. 172.]

[Footnote a: Co. Litt. 2.]

[Footnote b: Stat. 5 Eliz. c. 4.]

[Footnote c: Stat. 12 Car. II. c. 24.]

[Footnote d: Co. Litt. 172.]

CHAPTER THE EIGHTEENTH.

OF CORPORATIONS.

WE have hitherto considered persons in their natural capacities, and have treated of their rights and duties. But, as all personal rights die with the person; and, as the necessary forms of investing a series of individuals, one after another, with the same identical rights, would be very inconvenient, if not impracticable; it has been found necessary, when it is for the advantage of the public to have any particular rights kept on foot and continued, to constitute artificial persons, who may maintain a perpetual succession, and enjoy a kind of legal immortality.

THESE artificial persons are called bodies politic, bodies corporate, (_corpora corporata_) or corporations: of which there is a great variety subsisting, for the advancement of religion, of learning, and of commerce; in order to preserve entire and for ever those rights and immunities, which, if they were granted only to those individuals of which the body corporate is composed, would upon their death be utterly lost and extinct. To shew the advantages 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 which compose it might indeed read, pray, study, and perform scholastic exercises together, so long as they could agree to do so: but they could neither frame, nor receive, any laws or rules of their conduct; none at least, 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 be attacked, which of all this unconnected assembly has the right, or ability, to defend them? And, when they are dispersed by death or otherwise, how shall 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, but 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 one will, which is collected from the sense of the majority of the individuals: 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 it's 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, will be for ever vested, without any new conveyance to new successions; for all the individual members that have existed from the foundation to the present time, or that shall ever 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 honour of originally inventing these political constitutions entirely belongs to the Romans. They were introduced, as Plutarch says, 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[a], in which they were called _universitates_, as forming one whole out of many individuals; or _collegia_, from being gathered together: they were adopted also 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, according to the usual genius of the English nation: 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_[b]." Though they held, that if a corporation, originally consisting of three persons, be reduced to one, "_si universitas ad unum redit_," it may still subsist as a corporation, "_et stet nomen universitatis_[c]."

[Footnote a: _Ff._ _l._ 3. _t._ 4. _per tot._]

[Footnote b: _Ff._ 50. 16. 85.]

[Footnote c: _Ff._ 3. 4. 7.]

BEFORE we proceed to treat of the several incidents of corporations, as regarded by the laws of England, let us first take a view of the several sorts of them; and then we shall be better enabled to apprehend their respective qualities.

THE first division of corporations is into _aggregate_ and _sole_. Corporations aggregate consist of many persons united together into one society, and are kept up by a perpetual succession of members, so as to continue for ever: of which 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 had. In this sense the king is a sole corporation[d]: so is a bishop: so are some deans, 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 very 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 recompence 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; by making him and his successors a corporation. By which means all the original rights of the parsonage are preserved entire to the successor: for 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 to the other also.

[Footnote d: Co. Litt. 43.]

ANOTHER division of corporations, either sole or aggregate, is into _ecclesiastical_ and _lay_. Ecclesiastical corporations are where the members that compose it 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 are erected for the furtherance of religion, and the perpetuating the rights of the church. Lay corporations 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; for, immediately upon the demise of one king, his successor is, as we have formerly seen, 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 some for the better carrying on of divers special purposes; as churchwardens, for conservation 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 knowlege; and the society of antiquarians, for promoting the study of antiquities. And among these I am inclined to think the general corporate bodies of the universities of Oxford and Cambridge must be ranked: for it is clear they are not spiritual or ecclesiastical corporations, being composed of more laymen than clergy: neither are they eleemosynary foundations, though stipends are annexed to particular magistrates and professors, any more than other corporations where the acting officers have standing salaries; for these are rewards _pro opera et labore_, not charitable donations only, since every stipend is preceded by service and duty: they seem therefore to be merely civil corporations. The eleemosynary sort are such as are 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_[e] of them: which colleges are founded for two purposes; 1. For the promotion of piety and learning by proper regulations and ordinances. 2. 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[f], and although they in some things partake of the nature, privileges, and restrictions of ecclesiastical bodies.

[Footnote e: Such as at Manchester, Eton, Winchester, &c.]

[Footnote f: 1 Lord Raym. 6.]

HAVING thus marshalled the several species of corporations, let us next proceed to consider, 1. How corporations, in general, may be created. 2. What are their powers, capacities, and incapacities. 3. How corporations are visited. And 4. How they may be dissolved.

I. 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_[g]. 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 than such) should not establish any meetings in opposition to the laws of the state.

[Footnote g: _Ff._ 47. 22. 1. _Neque societas, neque collegium, neque hujusmodi corpus passim omnibus habere conceditur; nam et legibus, et senatus consultis, et principalibus constitutionibus ea res coercetur._ _Ff._ 3. 4. 1.]

BUT, with us in England, the king's consent is absolutely necessary to the erection of any corporation, either impliedly 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, churchwardens, and some others; who by common law have ever been held (as far as our books can shew 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 these 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 all corporations by _prescription_, such as the city of London, and many others[h], 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 thereof can shew no 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[i]: but it is observable, that most of those statutes, which are usually cited as having created corporations, 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 Hen. VIII[k], which charter was afterwards confirmed in parliament[l]; 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[m], and the society of the British fishery[n]. So that the immediate creative act is usually performed by the king alone, in virtue of his royal prerogative[o].

[Footnote h: 2 Inst. 330.]

[Footnote i: 10 Rep. 29. 1 Roll. Abr. 512. [Transcriber's Note: footnote marker missing in original.]]

[Footnote k: 8 Rep. 114.]

[Footnote l: 14 & 15 Hen. VIII. c. 5.]

[Footnote m: Stat. 5 & 6 W. & M. c. 20.]

[Footnote n: Stat. 23 Geo. II. c. 4.]

[Footnote o: See page 263.]

ALL the other methods therefore whereby 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 _gildam mercatoriam_, a mercantile meeting or assembly[p], this is alone sufficient to incorporate and establish them for ever[q].

[Footnote p: _Gild_ signified among the Saxons a fraternity, derived from the verb [Anglo-Saxon: gildan] to pay, because every man paid his share towards the expenses of the community. And hence their place of meeting is frequently called the _Gild-hall_.]

[Footnote q: 10 Rep. 30. 1 Roll. Abr. 513.]

THE parliament, we observed, by it's absolute and transcendent authority, may perform this, or any other act whatsoever: and actually did perform it to a great extent, by statute 39 Eliz. c. 5. which incorporated all hospitals and houses of correction founded by charitable persons, without farther trouble: and the same has been done in other cases of charitable foundations. But otherwise it is not usual thus to intrench upon the prerogative of the crown, and the king may prevent it when he pleases. And, in the particular instance before-mentioned, it was done, as sir Edward Coke observes[r], to avoid the charges of incorporation and licences of mortmain in small benefactions; which in his days were grown so great, that it discouraged many men to undertake these pious and charitable works.

[Footnote r: 2 Inst. 722.]