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"; but under the age of seven he cannot. The period between seven and fourteen is subject to much uncertainty: 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. And sir [ 465] 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. So also, in much more modern times, a boy of ten years old, who was guilty of a heinous murder, was held a proper subject for capital punishment, by the opinion of all the judges . (5)

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.

W 1 Hal. P. C. 25.
* Ibid. 26.

y Foster, 72.

that purpose. 2d., He does not necessarily appear by his regular guardian as the text implies, but by any person whom the court shall appoint guardian ad litem to defend that particular suit. It is within the province of every court to appoint a guardian ad litem, where a party in a suit is an infant. See Vol. III. p. 427.

(5) See Vol. IV. p. 23, 24.

Ir 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 infant trustees, or mortgagees, are enabled to convey, under the direction of the court of chancery or exchequer, or other courts of equity, 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 a. For the law in this case dispenses with one rule, in order to maintain others of far [466] 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. It is, farther, generally true, that an infant, under twenty-one, can make no deed but what is afterwards voidable; yet in some cases c he may bind himself apprentice by deed indented or indentures for seven years; and he may by deed or will appoint a guardian to his children, if he has any. Lastly, it is gene

d

rally 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. And thus much, at present for the privileges and disabilities of infants.

z Stat. 7 Ann. c. 19. 4 Geo. III. c.16.
a Co. Litt. 172.

b Ibid. 2.

C. Stat. 5 Eliz. c. 4. 43 Eliz. c. 2, Cro. Car. 179.

d Stat. 12 Car. II. c. 24.

e Co. Litt. 172.

CHAPTER THE EIGHTEENTH.

WE

OF CORPORATIONS.

E 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 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 of their [468] 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 insti[469] tuting separate societies of every manual trade and profession.

They were afterwards much considered by the civil law", 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

Ff. l. 3. t. 4. per tat.

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." 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."

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 corporation 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; 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 [470] 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 recompence for the same care.

b Ff. 50..16. 8.

d Co. Litt, 43.