corporation sole are the king and the parson of a parish. The conception of the king as a corporation is the key to many of his paradoxical attributes in constitutional theory—his invisibility, immortality, &c.
The term quasi-corporation is applied to holders for the time being of certain official positions, though not incorporated, as the churchwardens of a parish, guardians of the poor, &c.
The Roman conception of a corporation was kept alive by ecclesiastical and municipal bodies. When English lawyers came to deal with such societies, the corporation law of Rome admitted of easy application. Accordingly, in no department has English law borrowed so copiously and so directly from the civil law. The corporations known to the earlier English law were mainly the municipal, the ecclesiastical, and the educational and eleemosynary. To all of these the same principles, borrowed from Roman jurisprudence, were applied. The different purposes of these institutions brought about in course of time differences in the rules of the law applicable to each. In particular, the great development of trading companies under special statutes has produced a new class of corporations, differing widely from those formerly known to the law. The reform of municipal corporations has also restricted the operation of the principles of the older corporation law. These principles, however, still apply when special statutes have not intervened.
The legal origin of corporation is ascribed by J. Grant (Treatise on the Law of Corporations, 1850) to five sources, viz. common law, prescription, act of parliament, charter and implication. Prescription in legal theory implies a grant, so that corporations by prescription would be reducible to the class of chartered or statutory corporations. A corporation is said to exist by implication when the purposes of a legally constituted society cannot be carried out without corporate powers. Corporations are thus ultimately traceable to the authority of charters and acts of parliament. The power of creating corporations by charter is an important prerogative of the crown, but in the present state of the constitution, when all the powers of the crown are practically exercised by parliament, there is no room for any jealousy as to the manner in which it may be exercised. The power of chartering corporations belonged also to subjects who had jura regalia, e.g. the bishops of Durham granted a charter of incorporation to the city of Durham in 1565, 1602 and 1780. The charter of a corporation is regarded as being of the nature of a contract between the king and the corporation. It will be construed more favourably for the crown, and more strictly as against the grantee. It cannot alter the law of the land, and it may be surrendered, so that, if the surrender is accepted by the crown and enrolled in chancery, the corporation is thereby dissolved. Great use was made of this power of the crown in the reigns of Charles II. and James II.
Every corporation, it is said, must have a name, and it may have more names than one, but two corporations cannot have the same name. And corporations cannot change their name save by charter or some equivalent authority.
The possession of a common seal, though, as already stated, not conclusive of the corporate character, is an incident of every corporation aggregate. The inns of courts have common seals, but they are only voluntary societies, not corporations. Generally speaking, all corporate acts affecting strangers must be performed under the common seal; acts of internal administration affecting only the corporators, need not be under seal. The rule has been defended as following necessarily from the impersonal character of a corporation; either a seal or something equivalent must be fixed upon so that the act of the corporation may be recognized by all.
A corporation may be abolished by statute, but not by the mere authority of the crown. It may also become extinct by the disappearance of all its members or of any integral part, by surrender of charter if it is a chartered society, by process of law, or by forfeiture of privileges.
The power of the majority to bind the society is one of the first principles of corporation law, even in cases where the corporation has a head. It is even said that only by an act of parliament can this rule be avoided. The binding majority is that of the number present at a corporate meeting duly summoned.
In corporations which have a head (as colleges), although the head cannot veto the resolution of the majority, he is still considered an integral part of the society, and his death suspends its existence, so that a head cannot devise or bequeath to the corporation, nor can a grant be made to a corporation during vacancy of the headship.
A corporation has power to make such regulations (by-laws) as are necessary for carrying out its purposes, and these are binding on its members and on persons within its local jurisdiction if it has any.
The power to acquire and hold land was incident to a corporation at common law, but its restriction by the statutes of mortmain dates from a very early period. The English law against mortmain was dictated by the jealousy of the feudal lords, who lost the services they would otherwise have been entitled to, when their land passed into the hands of a perpetual corporation. The vast increase in the estates of ecclesiastical corporations constituted by itself a danger which might well justify the operation of the restricting statutes.
The Mortmain Acts applied only to cases of alienation inter vivos. There was no power to devise lands by will until 32 Henry VIII. c. 1 (1540), and when the power was granted corporations were expressly excluded from its benefits. No devise to a corporation, whether for its own use or in trust, was allowed to be good; land so devised went to the heir, either absolutely or charged with the trusts imposed upon it in the abortive devise. A modification, however, was gradually wrought by the judicial interpretations of the Charitable Trusts Act 1601, and it was held that a devise to a corporation for a charitable purpose might be a good devise, and would stand unless voided by the Mortmain Acts; so that no corporation could take land, without a licence, for any purpose or in any way; and no localised corporation could take lands by devise, save for charitable purposes. Then came the act of 1736, commonly but improperly called the Mortmain Act. Its effect was generally to make it impossible for land to be left by will for charitable uses, whether through a corporation or a natural person[1]. The Wills Act 1837 did not renew the old provision against devises to corporations, which therefore fell under the general law of mortmain. The law was consolidated by the Mortmain and Charitable Uses Act 1888, and the result is simply that corporations cannot take land for any purpose without a licence, and no licence in mortmain is granted by the crown, except in certain statutory cases in the interests of religion, charity or other definite public object.
The power of corporations at common law to alienate their property is usually restricted, as is their power to lease it for more than a certain number of years, except by sanction of a public authority. The more important classes of corporations, however, are now governed by special statutes which exclude or modify the operation of the common law principles. The most considerable class of societies still unaffected by such special legislation are the Livery Companies (q.v.). Under Company will be found an account of the important enactments regulating joint-stock companies.
The question to what extent the common law incidents of a corporation have been interfered with by special legislation has become one of much importance, especially under the acts relating to joint-stock companies. The most important case on this subject is that of Riche v. The Ashbury Railway Carriage Company, 1875 (L.R. 9 Ex. 224; L.R. 7 H.L. 653), in which, the judges of the exchequer chamber being equally divided, the decision of the court below was affirmed. The view taken by the affirming judges, viz. that the common law incidents of a corporation adhere unless expressly removed by the legislature, may be
- ↑ Devises to colleges are excepted from the operation of the act, but such devises must be for purposes identical with or closely resembling the original purposes of the college; and the exception from this act does not supersede the necessity for a licence in mortmain.
