Book I. WE before obferved that it was incident to every corporation, to have a capacity to purchase lands for themselves and [479] fucceffors: and this is regularly true at the common law.

But they are excepted out of the ftatute of wills: fo that no devife of lands to a corporation by will is good: except for charitable ufes, by ftatute 43 Eliz. c. 4.w: which exception is again greatly narrowed by the ftatute 9 Geo. II. c. 36. And alfo, by a great variety of statutes, their privilege even of purchafing from any living grantor is much abridged fo that now a corporation, either ecclefiaftical or lay, must have a licence from the king to purchase; before they can exert that capacity which is vefted in them by the common law: nor is even this in all cafes fufficient. These ftatutes are generally called the statutes of mortmain: all purchases made by corporate bodies being faid to be purchases in mortmain, in mortua manu : for the reafon of which appellation fir Edward Coke z offers many conjectures; but there is one which feems more probable than any that he has given us: viz. that these purchases being ufually made by ecclefiaftical bodies, the members of which (being profeffed) were reckoned dead perfons in law, land therefore, holden by them, might with great propriety be said to be held in mortua manu (10).

↑ 10 Rep. 30.

34 Hen. VIII. c. 5.
Hob. 136.

incapable of taking lands, unless by fpecial privilege from the emperor: collegium, fi nullo speciali privilegio fubnixum

From magna carta, 9 Hẹn. III. fit, kaereditatem capere non poffe, dubium c. 36. to 9 Geo. II. c. 36. non eft. Cod. 6. 24. 8.

tus et major pars; and it has been determined by the court of king's bench, (Corp. 377.) and by the vifitor of Clare-hall, Cambridge, and alfo by the vifitors of Dublin college, that this expreffion does not confer upon the warden, mafter, or provost, any negative; but that his vote must be counted with the reft, and that he is concluded by a majority of votes against him.

(10) If I might add another conjecture upon the origin of this word, I fhould fay that lands held by a corporation, on account of the perpetuity of fucceffion, did not yield to the lord the great feudal fruits of relief, wardship, and marriage; and for that reason they might be faid to be held in a dead or unproductive hand.

I SHALL

I SHALL defer the more particular expofition of these sta tutes of mortmain till the next book of these commentaries, when we shall confider the nature and tenures of eftates; and also the expofition of thofe difabling ftatutes of queen Elizabeth, which restrain spiritual and eleemofynary corporations from aliening such lands as they are at present in legal poffeffion of; only mentioning them in this place, for the fake of regularity, as ftatutable incapacities incident and relative to corporations,

THE general duties of all bodies politic, confidered in their corporate capacity, may, like those of natural perfons, be reduced to this fingle one: that of acting up to the end [480] or defign, whatever it be, for which they were created by their founder.

III. I PROCEED therefore next to inquire, how thefe corporations may be vifited. For corporations being compofed of individuals, fubject to human frailties, are liable, as well as private perfons, to deviate from the end of their inftitution. And for that reafon the law has provided proper perfons to vifit, inquire into, and correct all irregularities that arife in fuch corporations, either fole or aggregate, and whether ecclefiaftical, civil, or eleemofynary. With regard to all ecclefiaftical corporations, the ordinary is their visitor, fo conftituted by the canon law, and from thence derived to us. The pope formerly, and now the king, as fupreme ordinary, is the vifitor of the archbishop or metropolitan; the metropolitan has the charge and coercion of all his fuffragan bishops; and the bishops in their feveral diocefes are in ecclefiaftical matters the visitors of all deans and chapters, of all parfons and vicars, and all other spiritual corporations. With refpect to all lay corporations, the founder, his heirs, or affigns, are the vifitors, whether the foundation be civil or eleemofynary; for in a lay incorporation the ordinary neither can nor ought to visit a

? 10 Rep. 31.

I KNOW it is generally faid, that civil corporations are fubject to no vifitation, but merely to the common law of the land; and this fhall be prefently explained. But firft, as I have laid it down as a rule that the founder, his heirs, or affigns, are the vifitors of all lay corporations, let us inquire what is meant by the founder. The founder of all corporations in the stricteft and original sense is the king alone, for he only can incorporate a fociety; and in civil incorporations, fuch as mayor and commonalty, &c. where there are no poffeffions or endowments given to the body, there is no other founder but the king: but in eleemofynary foundations, fuch as colleges and hofpitals, where there is an endowment of lands, the law diftinguishes, and makes two fpecies of foun[481dation; the one fundatio incipiens, or the incorporation, in which fenfe the king is the general founder of all colleges and hospitals; the other fundatio perficiens, or the dotation of it, in which fenfe the firft gift of the revenue is the foundation, and he who gives them is in law the founder: and it is in this last fenfe that we generally call a man the founder of a college or hofpital b. But here the king has his prerogative: for, if the king and a private man join in endowing an eleemofynary foundation, the king alone shall be the founder of it. And, in general, the king being the fole founder of all civil corporations, and the endower the perficient founder of all eleemofynary ones, the right of vifitation of the former refults, according to the rule laid down, to the king; and of the latter to the patron or endower.

THE king being thus conftituted by law visitor of all civil corporations, the law has alfo appointed the place, wherein he shall exercise this jurifdiction: which is the court of king's bench; where, and where only, all misbehaviours of this kind of corporations are inquired into and redressed, and all their controverfies decided. And this is what I understand to be the meaning of our lawyers, when they fay that thefe civil corporations are liable to no vifitation; that

b 10 Rep. 33.

is, that the law having by immemorial ufage appointed them to be vifited and infpected by the king their founder, in hist majesty's court of king's bench, according to the rules of the common law, they ought not to be vifited elfewhere, or by any other authority. And this is fo strictly true, that though the king by his letters patent had fubjected the college of phyficians to the vifitation of four very refpectable perfons, the lord chancellor, the two chief juftices, and the chief baron; though the college had accepted this charter with all poffible marks of acquiefcence, and had acted under it for near a century; yet in 1753, the authority of this provision coming in difpute, on an appeal preferred to these supposed vifitors, they directed the legality of their own appointment [ 482 ] to be argued and, as this college was merely a civil and not an eleemofynary foundation, they at length determined, upon feveral days folemn debate, that they had no jurifdiction as visitors; and remitted the appellant (if aggrieved) to his regular remedy in his majesty's court of king's bench.

As to eleemofynary corporations, by the dotation the founder and his heirs are of common right the legal visitors, to fee that fuch property is rightly employed, as might otherwife have defcended to the visitor himfelf: but, if the founder has appointed and affigned any other perfon to be visitor, then his affignee fo appointed is invefted with all the founder's

This notion is perhaps too refined. The court of king's bench, (it may be faid) from it's general fuperintendent authority where other jurifdictions are deficient, has power to regulate all corporations where no special vifitor is ap

point d. But not in the light of vifitor:
for as it's judgments are liable to be re-
verfed by writs of error, it may be thought
to want one of the effential marks of vi
fitatorial power (11).

(11) And it wants, I conceive, another mark of vifitatorial power; which is, the difcretion of a vifitor, voluntarily to regulate and fuperintend. The court of king's bench, upon a proper com. plaint and application, can prevent and punish injuftice in civil corporations, as in every other part of their jurisdiction; but it is not the language of the profeffion to call that part of their authority a vifitatorial power.

power, in exclufion of his heir. Eleemofynary corporations are chiefly hofpitals, or colleges in the universities. These were all of them considered, by the popish clergy, as of mere ecclefiaftical jurisdiction: however, the law of the land judged otherwife; and, with regard to hofpitals, it has long been held, that if the hospital be spiritual, the bishop shall vifit; but if lay, the patron, This right of lay patrons was indeed abridged by statute 2 Hen. V. c. 1. which ordained, that the ordinary should vifit all hofpitals founded by subjects; though the king's right was referved, to vifit by his commiffioners fuch as were of royal foundation. But the subject's right was in part reftored by ftatute 14 Eliz. c. 5. which directs the bishop to visit such hospitals only, where no visitor is appointed by the founders thereof: and all the hofpitals founded by virtue of the ftatute 39 Eliz. c. 5, are to be vifited by fuch perfons as shall be nominated by the refpective founders. But ftill, if the founder appoints nobody, the bishop of the diocese must visit.

COLLEGES in the universities (whatever the common law may now, or might formerly, judge) were certainly confidered by the popish clergy, under whose direction they were, as ecclefiaftical, or at least as clerical, corporations; and therefore the right of visitation was claimed by the ordinary of the [483] diocefe. This is evident, because in many of our most an

tient colleges, where the founder had a mind to fubject them to a visitor of his own nomination, he obtained for that purpofe a papal bulle to exempt them from the jurifdiction of the ordinary; feveral of which are still preferved in the archives of the refpective focieties. And in fome of our colleges, where no special visitor is appointed, the bishop of that diocefe, in which Oxford was formerly comprized, has immemorially exercised visitatorial authority (12); which can be afcribed to nothing elfe, but his fuppofed title as ordinary to vifit this, among other ecclefiaftical foundations. And it is • 2 Inft. 725.

d Yearbook, 8 Edw. III. 28. 8 Aff. 29.

(12) That is, the bishop of Lincoln, from whose diocese that of Qxford was taken.