pleaded, grant or receive by its corporate name, and do other acts as a natural person may. 3. To purchase lands, and hold them (subject to various restrictions imposed by statute) for the benefit of themselves and successors. 4. To have a common seal', which is the organ or instrument whereby the body politic manifests its intentions. And, 5. To make by-laws, or private statutes, for the better government of the corporation. There are also other privileges and incidents, some of which are common to all corporations, while others belong to some sorts of corporations only; but these matters are of private law, and must therefore be passed over here. It is only necessary to add on this head the rule laid down by Blackstone, that the general duties of all bodies politic, considered in their corporate 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 created by their founder.

III. We have next to inquire how corporations may be visited. 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. The ordinary is the visitor of all ecclesiastical corporations, so constituted by 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 ordinary; but 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, 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. 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

2 Hob. 211.

4 10 Rep. 31.

1 Dav. 44. 48.

3 Re Dean of York, 2 Adol. & El. New Ser.

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.1

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 corporations 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. In this sense civil corporations are subject to no visitation, but only to the law of the land. And, accordingly, in the case of the college of physicians, though the king by his letters patent, had subjected that body to the visitation of four very respectable persons, the lord chancellor, the two chief justices, and the chief baron, though the college had accepted this charter with all possible marks of acquiescence, and had acted under it for more than a century; yet in 1753 the authority of the provisions coming into dispute on an appeal preferred to these supposed 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 aggrieved to the court of king's bench. 2

It was settled in the famous case of Philips and Bury3, 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.1

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

Blackst. Com. b. i. c. xviii. pp. 480, 481. 2 Blackst. Com. b. i. c. xviii. 3 Lord Raym. 5. 4 Mod. 106. Show. 35. Skinn. 447. Salk. 403. Carthew, 180. 2 Term Rep. 346. The three puisne judges were of opinion, against Lord Holt, in the K. B., that the visitors' determination might be reviewed there; but, on a writ of error, the lords concurred with the lord chief justice. His opinion, in 2 Term Rep., is exceedingly worth reading.

+ Stra. 797.

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 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 parliament' 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 provided2, 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 Will. 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. iii. § 28, 29. And Cacheranus, Decis., lxxxviii. § 1.

2 Stat. 2 Geo. I. c. iv.

3 Blackst. Com. b. i. c. xviii. fin.

417

CHAPTER XXIV.

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

E E

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 to that portion of mankind who have received a revelation of the true religion. It follows thence, that natural liberty, that is to say, the utmost liberty compatible with the nature of man, is that which is restrained only by natural law and the revealed laws of religion. But natural law cannot be enforced nor maintained in full vigour except in the social state, which is the condition most adapted to the nature of man and that in which alone he can live in a manner worthy of that nature. And the social state cannot be maintained without the institution of a sovereign power adequate to govern the commonwealth, prescribing to all its members certain laws or rules of conduct, and compelling them to conform thereto. It follows thence, that the institution of civil government is of natural law, since it is a necessary consequence of the principles thereof; and that, in the same manner as the natural liberty of man is freedom restrained only by the rules of that law, so civil liberty is that which has for boundary the municipal as well as natural law. Civil liberty must be by far the most perfect and secure, as well as the best calculated to procure the happiness of man, because the institution of civil government gives new vigour to natural law, and the establishment of a sovereign power provides effectually for its observance.

The establishment of government and sovereignty, it is true, modifies natural liberty to a considerable degree; since it requires that man should give up his independence, that is to say, the supreme power which he possessed over his person and actions. But it is evident that nothing can be more desirable than the renunciation of a degree of liberty most dangerous to possess, retaining only the freedom which is requisite for real and sound happiness. Civil liberty, then, is in substance the same as natural liberty, but stripped