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the canon-law, and from thence derived to us. With respect to all lay corporations, the founder, his heirs or assigns, are the visitors, whether the foundation be civil or eleemosynary, and not the ordinarybut the king alone is, in the strictest sense, the founder of all corporations, for he alone can incorporate a society. For this reason, where no possessions or endowments are given to the body by any subject, the crown alone is the founder, and consequently the visitor, of a civil corporation. In eleemosynary corporations, such as colleges and hospitals, -where there is an endowment of land, the case is different. The law distinguishes in them two species of foundation, —the one fundatio incipiens, or the incorporation; in which sense the crown is founder of all colleges and hospitals: the other,/K7k£a<M> perficiem, 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. But if the crown and a subject join in endowing an eleemosynary corporation, the crown is, by virtue of the royal prerogative, the only founder of it. And in general (as Blackstone informs us), 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 the latter to the patron or endower and his heirs, though he may appoint and assign a person to be visitor, and thus exclude his heirs.2
Blackstone goes on to argue, that the visitorial power of the crown is appointed to be exercised in the court of queen's bench; but the correctness of that position is doubted by Mr. Justice Coleridge, in his note to the passage, though that court has power to regulate all corpo1 10 Rep. 81.
5 Blackst. Com. b. i. c. xviii. p. 480, 481. rations where there is no special visitor, from its general superintending authority where other jurisdictions are deficient. It would seem, however, that though this jurisdiction of the court of queen's bench is not strictly visitorial, it has the effect of a visitation; and it is established that these civil corporations are subject to no other visitation. Thus it is generally said that civil corporations are subject to no visitation, but only to the law of the land.
It was settled in the famous case of Phillips and Bury,1 in the house of lords, that the determination of visitors cannot be examined and redressed in a court of law, but is final. But where the visitor is under a temporary disability, there the court of queen's bench will interpose to prevent a defect of justice.*
IV. "A corporation may be dissolved,— 1. By act of parliament, which is boundless in its operations. 2. By the natural death of all its members in the case of an aggregate corporation. 3. By surrender of its franchises into the hands of the crown. 4. By forfeiture of its charter through negligence or abuse of its franchises, in which case the law judges that the body politic has broken the condition upon which it was incorporated, and thereupon the incorporation is void. And the regular course is to bring an information in the nature of a writ of quo warranto, to inquire by what warrant the members now exercise their corporate power, having forfeited it by such and such proceedings. The exertion of this act of
1 Lord Raym. 5. 4 Mod. 106. Show. 35. Skinn. 447. Salk. 403. Cart hew, 180. 2 Term. Rep. 346. The three pnisne judges were of opinion, against lord Holt, in the K. 8., that the visitor's determination might be reviewed there; but, on a writ of error, the lords concurred with the lord chief justice. His opinion, in 2 Teem. Rep., is exceedingly worth reading.
- Stra. 797.
law, for the purposes of state, in the reigns of king Charles and king James II., particularly by seizing the charter of the city of London, gave great and just offence; though, perhaps, in strictness of law, the proceedings in most of them were sufficiently regular: but the judgment against that of London was reversed by act of parliament1 after the Revolution; and by the same statute it is enacted, that the franchises of the city of London shall never more be forfeited for any cause whatsoever. And because, by the common law, corporations were dissolved, in case the mayor or head officer was not duly elected on the day appointed in the charter, or established by prescription, it is now provided,2 that in future no corporation shall be dissolved on that account; and ample directions are given for appointing a new officer, in case there be no election, or a void one made on the prescriptive or charter-day."3
We have now distinguished natural-born subjects, with whom alone we are concerned, from aliens; and having thus defined the natural persons who are entitled to all the benefits of the English constitution, we have examined the properties of those artificial persons and creatures of the law, corporations. The next subject of our investigations will be the civil rights of the people.
1 Stat. 2 W. and M. c. viii. On the guilt of communities and their punishment, see Grotius, Dr. de la G. et de la P. 1. ii. c. xxi. § 7, 8. And Pufendorf, Dr. de la N. et des G. 1. viii. c. iiL § 28, 29.
3 Stat. 2 Geo. I. c. iv.
3 Blackst. Com. b. i. c. xviii. fin.
OF THE PRIMARY RIGHTS AND LIBERTIES OF THE SUBJECT.
Having defined the natural persons entitled to all the benefits and privileges of the English constitution, and the bodies politic, or artificial persons, created by our law for various purposes which the former could not fulfil, and yet are required by the public good, we must now proceed to the civil rights of the subject.
The institution of civil society is intended to maintain the natural law, to secure mankind against the numerous evils arising from its violation, and for the promotion of their greatest possible moral and physical welfare. Thus the obligations and rights of men living in a social state comprehend the whole natural law. But we are here to consider only those rights of the subject which belong to him as a member of the state, independently of any act of his own and of any peculiar relation in which he may stand towards the community or other individuals. We have already seen that allegiance and protection are reciprocal and are due one in consideration of the other; and, indeed, it is laid down by all the greatest writers on public law, that mankind renounce a great part of their natural liberty by entering into the social state, for the purpose of enjoying more perfectly that which remains, and obtaining full security for their most important and indispensable rights. Those rights are either primary,— that is to say, springing simply from the relation which every man, as such, bears to society; or secondary,—that is,
arising from some particular situation which a man occupies with respect to society at large, or to certain members thereof. We must here confine ourselves to the consideration of primary rights; for of secondary rights we have already treated, so far as regards the relation of magistrates and other public persons to the community: and the remainder of that general head of law, including the relations of parents and children, and husband and wife, as well as those arising from contracts and other human actions of persons in their private capacity, belong to private law.
The primary rights of the citizen fall under three great heads: 1. The right of personal security. 2. The right of personal liberty. And, 3. The right of property. And under these three heads, taken in a comprehensive sense, are included those liberties, the fundamental articles of which are part of the common law, and have been repeatedly confirmed, asserted, and extended in parliament, especially in the great charter and its confirmations; the petition of right, which was a parliamentary declaration of the liberties of the people, assented to by king Charles I.; the habeas corpus act, passed under Charles II.; the bill of rights; and the act of settlement. By these especially, and by other portions of our common and statute-law, the liberties of the subject are defined and secured.
We will now briefly consider the nature of civil liberty, and then proceed to examine the three heads of primary rights which have just been pointed out.
Absolute liberty, that is to say, the faculty of acting without any control whatever, according to the impulse of desire or inclination, is irreconcilable with the nature of man as a reasonable creature, to whom natural law has been given for a rule of conduct by the Creator. This proposition is still more evidently true with respect