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 show the advantages of these incorporations, let us consider the case of a college in one of our universities, founded ad studendum et orandum, for the encouragement and support of religion and learning. If this were 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 for their conduct; none at least, *which would have any binding force, for want of a coercive [*567] power to create a sufficient obligation. Neither could they be capable of retaining any privileges or immunities: for if such privileges should be attacked, no one individual of all this unconnected assembly could have the right, even if he had the ability, to defend them. And, when they were dispersed by death or otherwise, they could not transfer these advantages to another set of students, as 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 usually 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 make a sort of municipal law 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, will be for ever vested without any new conveyance(a); for all the individual members that have existed from the foundation to the present time, or that 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. These political constitutions are ancient; they were known to the Romans(b), and in the civil law(c), and * called universitates, as forming one whole Origin of corpo- 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, particularly with regard to sole corporations, consisting of one person only, of which the Roman lawyers had no notion; thus we read "Neratius Priscus tres facere existimat collegium(d)." Though they held, that if a corporation originally consisting of three persons, were reduced to one, "si universitas ad unum redit," it might still subsist as a corporation "et stet nomen universitatis"(e). rations. [*568] Before we proceed to treat of the several incidents of corporations, as regarded by the laws of England, it will be convenient to divide them into four classes, (a) Subject, of course to the statutes of mortmain. (b) Plutarch says they were introduced by Numa. (c) Dig. 1. 3, t. 4, per tot. (d) Dig. 50, 16, 85; Colquhoun's Civil Law, ss. 863, 885. (e) Dig. 3, 4, 7; Colquhoun's Civil Law, s. 885. viz.: -I. Corporations existing at common law, irrespective of statute, and exclusive of; II. Municipal corporations; III. Railway companies, canal companies, gas companies, and other companies which require special parliamentary powers; and IV. Joint-stock companies, formed under the Joint-Stock Companies' Acts (f). I. Under our first head we propose then to treat of corporations not falling within either of the other three titles above mentioned. We shall find them (I.) Corporations capable of various subdivisions, the respective qualities whereof at common law. will be considered. [*569] One division of corporations is into aggregate and sole. A corporation aggregate consists of many persons united together into one society, and is kept up Corporation by a perpetual succession of members, so as to continue for aggregate. 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. (174) A corporation sole consists of one person only and his successors, 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 would not have had.(175) In this sense the king is a sole corporation (g); so is a bishop or an archdeacon; so sometimes is a dean (h) distinct from his chapter; and so is a rector or vicar. And the necessity, or at least use, of this institution will be very apparent, if we consider the case of a Sole. (f) 25 & 26 Vict. c. 89; 30 & 31 Vict. c. 131. (h) Grant on Corporations, 581,588–590. (g) See Co. Litt. 43. (174) "A corporation aggregate is a collection of individuals united in one body, under such a grant of privileges as secures a succession of members without changing the identity of the body, and constitutes the members for the time being one artificial person, or legal being, capable of transacting some kind of business like a natural person." Bronson, J., People v. Assessors of Watertown, 1 Hill, 620. A corporation is an artificial being, invisible, intangible, and existing only in contemplation of law. Being the mere creature of the law, it possesses only those properties which the charter of its creation confers upon it, either expressly or as incidental to its very existence. These are such as are supposed best calculated to effect the object for which it was created. Among the most important are immortality, and, if the expression may be allowed, individuality, properties by which a perpetual succession of many persons are considered as the same, and may act as a single individual. They enable a corporation to manage its own affairs, and to hold property without the perplexing intricacies, the hazardous and endless necessity of perpetual conveyances, for the purpose of transmitting it from hand to hand. It is chiefly for these purposes of clothing bodies of men in succession, with these qualities and capacities, that corporations were invented and are in use." Marshall, C. J., Trustees of Dartmouth College v. Woodward, 4 Wheat. 636. An English joint-stock company, having the powers incident to a corporation, will be treated as a corporation in this country, although English acts of parliament declare that such companies are not corporations. Liverpool Insurance Co. v. Massachusetts, 10 Wall. 566. (175) In Massachusetts a minister seized of the parsonage lands, in the right of the parish, is a sole corporation for this purpose, and holds the lands to himself and his successors. Brunswick v. Dunning, 7 Mass. 447; Weston v. Hunt, 2 id. 501; Overseers, etc. v. Sears, 22 Pick. 125. In New York a supervisor of a town is a quasi sole corporation, and when he has taken a collector's bond, under the statute, his successor in office must sue on the bond in his own name. Jansen v. Ostrander, 1 Cow. 670; see Levy Court v. Coroner, 8 Wall. 501. The capacity of a sole corporation to take property is confined to real estate. Terrett v. Taylor, 9 Cranch, 43. parson of a church. At the original endowment of parish churches, the freehold of the church, the churchyard, 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 the intention 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 might be liable to his debts and incumbrances; or, at best, the heir might be compellable, at some trouble and expense, to convey it to the succeeding incumbent. The law therefore wisely ordained, that the parson, quatenus parson shall never die, any more than the king: by making him and his successors a corporation (i). By which means the original rights of the parsonage are preserved entire: for the present incumbent, and his predecessors who lived a century ago, are in law one and the same person; and what was given to the one was given to the other also; though in order to preserve entire the original rights of a parsonage, as against the acts of a parson, the legislature has found it necessary to restrain * his exercise of the right of alienation by various enactments(k). [ *570] Another division of corporations, either sole or aggregate, is into ecclesiastical and lay. Ecclesiastical corporations are those where not only the members that compose it are entirely spiritual persons, but where the object of the institution is spiritual(): such as bishops; certain deans, all archdeacons, parsons, and vicars, who 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 perpetuating the rights of the church (m).(176) Lay corporations are of two sorts, civil and eleemosynary. The civil are such as are erected for various 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 apon the demise of one king, his successor is, as we have formerly seen(n), in full possession of the regal rights and dignity. A lay corporation may be erected for the good government of a town or particular district, as a mayor and commonalty, bailiff and burgesses, or the like; some lay corporations have been instituted for the advancement and regulation of manufactures and commerce; as the civic companies (o) of London, and other towns: and some for the *better carrying on of divers special purposes; as churchwardens, who are incorporated for the preservation of the goods of the parish (p); Ecclesiastical. Lay which are civil. (i) Ante, p. 464. (k) Cripps, L. Church and Clergy, 5th ed. pp. 268 et seq. () It is not their being composed of spiritual persons, but their having been founded for spiritual purposes, which makes such corporations ecclesiastical: Kyd, on Corp. vol. 1, p. 23. (m) The Ecclesiastical Commissioners, appointed by 6 & 7 Will. 4, c. 77, to regulate ecclesiastical revenues, and for other purposes, are made a corporation by the act ap [ *571] (176) See note 120, where the subject of religious corporations has been sufficiently noticed. the college of physicians and college 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. And among these the general corporate bodies of the universities of Oxford and Cambridge must be ranked: for it is clear they are not purely spiritual or ecclesiastical corporations-not having been established for spiritual purposes, and being composed of more laymen than clergy (q): neither are they eleemosynary foundations, though stipends are annexed to particular functionaries and professors, any more than other corporations where the acting officers have standing salaries; for these are rewards pro operá et labore, not charitable donations only, since every stipend is preceded by service and duty; they seem therefore to be civil corporations. An eleemosynary corporation is such as has been constituted for the perpetual distribution of the free alms, or bounty of its founder, to such persons as he may have directed. Of this kind are hospitals for the maintenance of the poor, sick, and impotent: and colleges both in our ancient universities, and out(r) of them: which colleges were founded for two purposes; (1) For the promotion of education and learning by proper regulations and ordinances. (2) For imparting assistance to the members of those bodies, in [*572] order to enable them to prosecute their studies with *greater ease and assiduity. And all these eleemosynary corporations are, strictly speaking, lay and not ecclesiastical, even though composed of ecclesiastical persons(s), and although they may in some things partake of the nature, privileges and restrictions of ecclesiastical bodies.(177) Lay which are eleemosynary. Having thus mentioned several species of corporations included within the present division of our subject, we proceed to consider: 1. How such corpora (9) "Whatever may have been the notion in former times," said Lord Mansfield, "it is most certain now, that the corporations of universities are lay corporations." R. v. ViceChancellor of Cambridge, 3 Burr. 1656. (r) Such as at Manchester, Eton, Winchester, &c. (8) Phillips v. Bury, 1 Lord Raym. 6. (177) In regard to incorporated colleges there are some well-settled rules, among which are these that they belong to the class of private corporations as opposed to municipal, or such as are owned entirely by the state; that they are strictly eleemosynary, contributing to our higher wants, and generally furnishing to the comparatively poor, opportunities otherwise beyond their reach; that private contributions for the endowment of institutions of learning, on the faith of a charter, constitute a contract between the contributors and others interested and the state; that the contribution is a sufficient consideration for the franchise given by the charter, the whole constituting a valid and binding agreement not to be impaired by the state nor avoided by the corporation; that the trustees named in the charter, and those chosen as their successors according to its terms, are not only trustees of the fund, but also take the place of the founder of the charity as its lawful visitors and overseers, their trust implying an obligation to govern according to the statutes of the founder, as embodied in the charter; that in fulfilling this obligation they can be controlled as other trustees, the only duty of the courts being to see that the trust is faithfully executed; and that any statute making a substantial change in the charter, as by the addition of new trustees, or by a material change in the manner of choosing them, in the mode of expending the funds, or in the objects of the charity, impairs the obligation of the contract, and is forbidden by the constitution of the United States. State v. Adams, 44 Mo. 570; Dartmouth College v. Woodward, 4 Wheat. (U. S.) 518; Vincennes University v. Indiana, 14 How. (U. S.) 268; Terrett v. Taylor, 9 Cranch, 43. A change in the constitution of a state cannot release the state from contracts made under a constitution which permitted them to be made. Dodge v. Woolsey, 18 How. (U. S.) 331. tions may be created. 2. What are their powers, capacities, and incapacities. 3. How corporations are visited. And, 4. 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 (t). It does 1. How created. not appear that the sovereign's consent was necessary to be actually given to the foundation of them; it was merely required 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. But with us in England, the sovereign's consent, either impliedly or expressly given, is necessary to the erection of any corporation such as now treated of(u).(178) The consent of the crown is implied in the case of a corporation existing by force of the common law, to which former *kings are supposed to have given their concurrence. Of this sort are the monarch, bishops (exclusive of those recently con By king's consent. (t) Dig. 47, 22, 1. Neque societatem, neque collegium, neque hujusmodi corpus passim omnibus habere conceditur; nam et legibus, et senatús consultis, et principalibus constitutionibus ea res coercetur. Dig. 3, 4, 1. (u) Cities and towns were first erected into corporate communities on the continent, and [ *573] endowed with many valuable privileges, (178) In the United States, corporations are generally created by the state legislatures. The power of the United States government has been noticed. See note 91. In the United States, corporations may exist by prescription, which presupposes an authorized and legitimate creation. Robie v. Sedgwick, 35 Barb. 319; Dillingham v. Snow, 7 Mass. 547; Stockbridge v. West Stockbridge, 12 id. 400; Hagerstown Turnpike Co. v. Cruger, 5 Harr. & Johns. 122; Greene v. Dennis, 6 Conn. 302. Public corporations are such as are created by the government for political purposes, as counties, towns, cities and villages; they are vested with subordinate legislative powers, to be exercised for local purposes connected with the public good; and such powers are subject to the control of the legislature of the state. Mills v. Williams, 11 Ired. 558; Tinsman v. Belvidere & Delaware R. R. Co., 2 Dutch. (N. J.) 148. A board of school commissioners for a particular county, created by special statute, authorized to devise a system of public instruction, to establish schools, and to raise money for their support, is a public corporation. School Commissioners v. Putnam, 44 Ala. 566. A corporation is private, as distinguished from a public corporation, unless the whole interest belongs to the government, or it is vested with political or municipal power. Rundle v. Delaware & Raritan Canal, 1 Wall. 275. A canal company is a private corporation; it is not a public corporation because it may be useful for the public benefit. Ib.; Ten Eyck v. Delaware & Raritan Canal, 3 Harr. 200. An incorporated academy is a private corporation, although it may derive a part of its support from the government. Cleaveland v. Stewart, 3 Kelly, 283. Private corporations are such as are created for building and operating steamships, steamboats, railroads, roads, bridges, telegraphs, banks, insurance, and numerous others of the same general nature. A railroad is a private corporation. Alabama & Tennessee R. R. Co. v. Kidd, 29 Ala. 221. Formerly there were many corporations created by the state legislatures by special enactment in each case. But the rule has been greatly changed in that respect. In many of the states the constitutions provide that corporations shall not be created by special legislation, but must be done under general laws enacted for that purpose. Any exceptions to this general rule need not be noticed here. It may be stated as a general rule that, in this country, corporations are the creatures of statutes, either special or general. These statutes provide for the creation, organization, duration, powers, duties, rights and obligations which are incident to the corporation when created and in existence. And, where general statutes |