 Section 44, Chapter 15 of the Common Trees on the Laws of England, Book 1. This is a LibriVox recording. All LibriVox recordings are in the public domain. For more information or to volunteer, please visit LibriVox.org, recording by Andrew Coleman. Common Trees on the Laws of England by William Blexton, Book 1, Chapter 15. Chapter 15 of Husband and Wife The second private relation of persons is that of marriage, which includes the reciprocal duties of husband and wife, or, as most of our elder law books call them, of baron and femme. In the consideration of which I shall in the first place inquire how marriages may be contracted or made, shall next point out the manner in which they may be dissolved, and shall lastly take a view of the legal effects and consequence of marriage. 1. Our law considers marriage in no other light than as a civil contract. The holiness of the matrimonial state is left entirely to the ecclesiastical law. The temporal courts not having jurisdiction to consider unlawful marriages as a sin, but merely as a civil inconvenience. The punishment, therefore, or a nulling of incestuous or other unscriptural marriages, is the province of the spiritual courts, which act prosolute animi. And taking it in this civil light, the law treats it as it does all other contracts, allowing it to be good and valid in all cases, where the parties at the time of making it were, in the first place, willing to contract, secondly, able to contract, and lastly, actually did contract, in the proper forms and solemnities required by law. First, they must be willing to contract. Consensus non concubitus facit noptias is the maximum of the civil law in this case, and it is adopted by the common lawyers, who indeed have borrowed, especially in ancient times, almost all their notions of the legitimacy of marriage from the canon and civil laws. Secondly, they must be able to contract. In general, all persons are able to contract themselves in marriage, unless they labour under some particular disabilities and incapacities. What those are, it will here be our business to inquire. Now these disabilities are of two sorts. First, such as our canonical, and therefore sufficient by the ecclesiastical laws to avoid the marriage in the spiritual court, but these in our law only make the marriage voidable, and not ipso facto void, until sentence of nullity be obtained. Of this nature are pre-contract, consanguinity, or relation by blood, and affinity, or relation by marriage, and some particular corporal infirmities, and these canonical disabilities are either grounded upon the express words of the divine law, or are consequences plainly deduceable from thence. It therefore being sinful in the persons who labour under them to attempt to contract matrimony together. They are properly the object of the ecclesiastical magistrate's coercion, in order to separate the offenders and inflict penance for the offence prosalute animarum. But such marriages not being void abinitio, but voidable only by sentence of separation, they are esteemed valid towards civil purposes, unless such separation is actually made during the life of the parties. Four, after the death of either of them, the courts of common law will not suffer the spiritual court to declare such marriages to have been void, because such declaration cannot now tend to the reformation of the parties. And therefore, when a man had married his first wife's sister, and after her death the bishops' court was proceeding to annul the marriage and bastardise the issue, the court of King's Bench granted a prohibition quorad hoc, but permitted them to proceed to punish the husband for incest. These canonical disabilities, being entirely the province of the ecclesiastical courts, are books are perfectly silent concerning them. But there are a few statutes, which serve as directories to those courts, of which it will be proper to take notice. By statute 32 Henry VIII chapter 38, it is declared that all persons may lawfully marry, but such as are prohibited by God's law, and that all marriages contracted by lawful persons in the face of the church, and consummate with bodily knowledge and fruit of children, shall be indissoluble. And, because in the times of Popory a great variety of degrees of kindred were made impediments to marriage, which impediments might however be bought off from money, it is declared by the same statute that nothing, God's law accept, shall impeach any marriage, but within the levitical degrees, the furthest of which is that between uncle and niece. By the same statute all impediments arising from pre-contracts to other persons were abolished and declared of none effect, unless they had been consummated with bodily knowledge, in which case the canon law holds such contract to be a marriage de facto. But this branch of the statute was repealed by statute 2 and 3 Edward VI chapter 23. How far the act of 26 George II chapter 33, which prohibits all suits in ecclesiastical courts to compel a marriage in consequence of any contract, may collaterally extend to revive this clause of Henry VIII's statute and abolish the impediment of pre-contract I leave to be considered by the canonists. The other sort of disabilities are those which are created or at least enforced by the municipal laws, and those some of them may be grounded on natural law, yet they are regarded by the laws of the land not so much in the light of any moral offence, as on account of the civil inconveniences they draw after them. These civil disabilities make the contract void ab initio and not merely voidable, not that they dissolve a contract already formed, but they render the parties incapable of forming any contract at all. They do not put asunder those who are joined together, but they previously hinder the junction, and if any persons under these legal incapacities come together, it is a meretricious and not a matrimonial union. The first of these legal disabilities is a prior marriage, or having another husband or wife living, in which case, besides the penalties consequent upon it as a felony, the second marriage is, to all intents and purposes, void. Polygamy being condemned both by the law of the New Testament and the policy of all prudent states, especially in these northern climates. And Justinian, even in the climate of modern Turkey, is expressed that duas oxores, aodem temperae haberi non liket. 2. The next legal disability is want of age. This is sufficient to avoid all other contracts on account of the imbecility of judgement in the parties contracting. At fortiori, therefore, it ought to avoid this, the most important contract of any. Therefore, if a boy under 14, or a girl under 12 years of age, marries, this marriage is only incoate and imperfect, and when either of them comes to the age of consent aforesaid, they may disagree and declare the marriage void without any divorce or sentence in the spiritual court. This is founded on the civil law, but the canon law pays a greater regard to the constitution than the age of the parties, for if they are hebilis ad matrimonium, it is a good marriage, whatever their age may be. And in our law, it is so far a marriage, that if at the age of consent they agree to continue together, they need not be married again. If the husband be of years of discretion, and the wife under 12, when she comes to years of discretion, he may disagree as well as she may, for in contracts the obligation must be mutual, both must be bound or neither, and so it is vice versa, when the wife is of years of discretion, and the husband under. Another incapacity arises from want of consent of parents or guardians. By the common law, if the parties themselves were of the age of consent, they wanted no other concurrence to make the marriage valid, and this was agreeable to the canon law. But by several statutes, penalties of 100 shillings are laid on every clergyman who marries a couple either without publication of bans, which may give notice to parents or guardians, or without a licence, to obtain which the consent of parents or guardians must be sworn to. And by the statute, four and five, Philip and Mary, chapter eight, who so ever marries any woman child under the age of sixteen years, without consent of parents or guardians, shall be subject to fine or five years imprisonment, and her estate during the husband's life shall go to and be enjoyed by the next heir. The civil law indeed required the consent of the parent or tutor at all ages, unless the children were emancipated or out of the parents' power. And if such consent from the father was wanting, the marriage was null and the children illegitimate. But the consent of the mother or guardians, if unreasonably withheld, might be redressed and supplied by the judge or the president of the province, and if the father was non-compassed, a similar remedy was given. These provisions are adopted and imitated by the French and Hollanders with this difference, that in France the sons cannot marry without consent of parents till thirty years of age, nor the daughters till twenty-five. And in Holland the sons are at their own disposal at twenty-five and the daughters at twenty. Thus hath stood, and thus at present stands, the law in other neighbouring countries. And it has been lately thought proper to introduce somewhat of the same policy into our laws. By Statute 26, George II, Chapter 33. Whereby it is enacted that all marriages celebrated by license, for ban supposed notice, where either of the parties is under twenty-one, not being a widower or widower who are supposed emancipated, without the consent of the father, or if he be not living, of the mother or guardians, shall be absolutely void. A like provision is made as in the civil law, where the mother or guardian is non-compassed, beyond sea, or unreasonably forward, to dispense with such consent at the discretion of the Lord Chancellor. But no provision is made in case the father should labour under any mental or other incapacity. Much may be, and much has been said, both for and against this innovation upon our ancient laws and constitution. On the one hand it prevents the clandestine marriages of minors, which are often a terrible inconvenience to those private families wherein they happen. On the other hand, restraints upon marriage, especially among the lower class, are evidently detrimental to the public by hindering the increase of people, and to religion and morality by encouraging licentiousness and debauchery among the single of both sexes. And thereby destroying one end of society and government, which is concubitul propivari vargo. And of this lasting convenience the Roman laws were so sensible that at the same time that they forbade marriage without the consent of parents or guardians, they were less rigorous upon that very account with regard to other restraints. For, if a parent did not provide a husband for his daughter, by the time she arrived at the age of twenty-five, and she afterwards made a slip in her conduct, he was not allowed to disinherit her upon that account. Queer non sewer culpa, said Parentum, id commissis se cognoscitol. Four. A fourth incapacity is want of reason. Without a competent share of which, as no other, so neither can the matrimonial contract be valid. Idiots and lunatics, by the old common law, might have married. Wherein it was manifestly defective. The civil law judged much more sensibly when it made such deprivations of reason a previous impediment, though not a cause of divorce if they happened after marriage. This defect in our laws is, however, remedied with regard to lunatics and persons under frenzies, by the express words of the Statute 15, George II, Chapter 30, and idiots, if not within the letter of the Statute, are at least within the reason of it. Lastly, the parties must not only be willing and able to contract, but actually must contract themselves in due form of law to make it a good civil marriage. Any contract made, per verber de presente, or in words of the present tense, and in case of cohabitation per verber de futuro, also between persons able to contract, was before the late act deemed a valid marriage to many purposes. And the parties might be compelled in the spiritual courts to celebrate it in facie ecclesiée. But these verbal contracts are now of no force to compel a future marriage. Neither is any marriage at present valid that is not celebrated in some parish church or public chapel, unless by dispensation from the Archbishop of Canterbury. It must also be preceded by publication of bans, or by licence from the spiritual judge. Many other formalities are likewise prescribed by the act, the neglect of which, though penal, does not invalidate the marriage. It is held to be also essential to a marriage, that it be performed by a person in orders. Though the intervention of a priest to solemnise this contract is merely Eurus positivei, and not Eurus naturalis out divini. It being said that Pope Innocent III was the first who ordained the celebration of marriage in the church, before which it was totally a civil contract. And, in the times of the grand rebellion, all marriages were performed by the justices of the peace, and these marriages were declared valid without any fresh solemnisation, by Statute 12 Charles II, Chapter 33. But, as the law now stands, we may upon the whole collect that no marriage by the temporal law is ipso facto void, that is celebrated by a person in orders, in a parish church or public chapel, or elsewhere by special dispensation, in pursuance of bans or a licence, between single persons, consenting of sound mind, and of the age of 21 years, or of the age of 14 in males and 12 in females, with consent of parents or guardians, or without it, in case of widowhood. And no marriage is voidable by the ecclesiastical law after the death of either of the parties, nor during their lives, unless for the canonical impediments of pre-contract, if that indeed still exists, of consequentity, and of affinity, or corporal imbecility, subsisting previous to the marriage. 2. I am next to consider the manner in which marriages may be dissolved, and this is either by death, or divorce. There are two kinds of divorce, the one total, the other partial, the one avinculo matrimonii, the other merely amensa et thorough. The total divorce, avinculo matrimonii, must be for some of the canonical causes of impediment before mentioned, and those existing before the marriage, as is always the case in consequentity, not supervenient, or arising afterwards, as may be the case in affinity, or corporal imbecility. For in cases of total divorce, the marriage is declared null, as having been absolutely unlawful, ab initio, and the parties are therefore separated, prosalute animarum, for which reason, as was before observed, no divorce can be obtained, but during the life of the parties. The issue of such marriage, as is thus entirely dissolved, are bastards. Divorce amensa et thorough, is when the marriage is just and lawful ab initio, and therefore the law is tender of dissolving it, but for some supervenient cause, it becomes improper or impossible for the parties to live together, as in the case of intolerable ill temper, or adultery, in either of the parties. For the canon law, which the common law follows in this case, deems so highly, and with such mysterious reverence of the nuptial tie, that it will not allow it to be unloosed for any cause whatsoever that arises after the union is made. And this is said to be built on the divine revealed law, though that expressly assigns incontinence as a cause, and indeed the only cause, why a man may put away his wife and marry another. The civil law, which is partly of pagan original, allows many causes of absolute divorce, and some of them pretty severe ones, as if a wife goes to the theatre or the public games without the knowledge and consent of the husband. But among them adultery is the principle, and with reason named the first. But with us in England adultery is only a cause of separation from bed and board, for which the best reason that can be given is that if divorces were allowed to depend upon a matter within the power of either the parties, they would probably be extremely frequent, as was the case when divorces were allowed for canonical disabilities on the mere confession of the parties, which is now prohibited by the canons. However, divorces avinculo matrimonii, for adultery, have of late years been frequently granted by act of parliament. In case of divorce amenssa et thorough, the law allows alimony to the wife. Which is that allowance, which is made to a woman for her support out of the husband's estate, being settled at the discretion of the ecclesiastical judge, on consideration of all the circumstances of the case. This is sometimes called her estovas, for which, if he refuses payment, there is, besides the ordinary process of excommunication, a writ at common law, de esteveries habendis, in order to recover it. It is generally proportioned to the rank and quality of the parties, but in case of elopement and living with an adulterer, the law allows her no alimony. Three, having thus shown how marriages may be made or dissolved, I come now, lastly, to speak of the legal consequences of such making or dissolution. By marriage, the husband and wife are one person in law. That is, the very being or legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into that of the husband, under whose wing, protection and cover, she performs everything, and is therefore called in our law-french affem-covert, is said to be Covert Baron, or under the protection and influence of her husband, her Baron, or lord, and her condition during her marriage is called her Covertule. Upon this principle, of an union of person, in husband and wife, depend almost all the legal rights, duties and disabilities that either of them acquire by the marriage. I speak not at present of the rights of property, but of such as are merely personal. For this reason, a man cannot grant anything to his wife, or enter into Covenant with her, for the grant would be to suppose her separate existence, and to Covenant with her would be only to Covenant with himself, and therefore it is also generally true that all compacts made between husband and wife, when single, are voided by the intermarriage. A woman indeed may be attorney for her husband, for that implies no separation from, but is rather a representation of, her lord, and a husband may also bequeath anything to his wife by will, for that cannot take effect till the Coverture is determined by his death. The husband is bound to provide his wife with necessaries by law, as much as himself, and if she contracts debts for them, he is obliged to pay them, but for anything besides necessaries, he is not chargeable. Also, if a wife elopes and lives with another man, the husband is not chargeable even for necessaries, at least if the person who furnishes them is sufficiently apprised of her elopement. If the wife be indebted before marriage, the husband is bound afterwards to pay the debt, for he has adopted her and her circumstances together. If the wife be injured in her person or her property, she can bring no action for redress without her husband's concurrence, and in his name as well as her own. Neither can she be sued without making the husband a defendant. There is indeed one case where the wife shall sue and be sued as a femme soul, viz, where the husband has abjured the realm or is banished. For then he is dead in law, and the husband being thus disabled to sue for or defend the wife, it would be most unreasonable if she had no remedy or could make no defence at all. In criminal prosecutions it is true the wife may be indebted and punished separately, for the union is only a civil union. But in trials of any sort they are not allowed to be evidence for or against each other, partly because it is impossible their testimony should be indifferent, but principally because of the union of person, and therefore if they were admitted to be witnesses for each other, they would contradict one maxim of law. Nemo impropria causa testis essay debet, and if against each other they would contradict another maxim. Nemo tenetur se ipsum accusare, but where the offence is directly against the person of the wife, this rule has been usually dispensed with, and therefore by Statute III Henry VII chapter 2, in case a woman be forcibly taken away and married, she may be a witness against such her husband, in order to convict him of felony. For in this case she can with no propriety be reckoned his wife, because a main ingredient, her consent, was wanting to the contract, and also there is another maxim of law, that no man shall take advantage of his own wrong, which the ravager here would do if by forcibly marrying a woman he could prevent her from being a witness, who is perhaps the only witness to that very fact. In the civil law the husband and wife are considered as two distinct persons, and may have separate estates, contracts, debts and injuries, and therefore in our ecclesiastical courts a woman may sue and be sued without her husband. But though our law in general considers man and wife as one person, yet there are some instances in which she is separately considered, as inferior to him and acting by his compulsion, and therefore all deeds executed and acts done by her, during her coverture, are void or at least voidable, except it be a fine or the like matter of record, in which case she must be solely and secretly examined to learn if her act be voluntary. She cannot by will devise lands to her husband, unless under special circumstances, for at the time of making it she is supposed to be under his coercion, and in some felonies and other inferior crimes committed by her through constraint of her husband the law excuses her, but this extends not to treason or murder. The husband also, by the old law, might give his wife moderate correction, for as he is to answer for her misbehavior the law thought it reasonable to entrust him with this power of restraining her by domestic chastisement, in the same moderation that a man is allowed to correct his servants or children, for whom the master or parent is also liable in some cases to answer. But this power of correction was confined within reasonable bounds, and the husband was prohibited to use any violence to his wife. Alethe quam ad virum excouser regiminis et castigationis oxoris sui liquite et rationabilita pertinent. The civil law gave the husband the same, or a larger, authority over his wife, allowing him for some misdemeanours, flagellis et fustibus acrita verberari oxorum, for others only modicam castigationem hadipere. But with us, in the polite arena of chance the second, this power of correction began to be doubted, and a wife may now have security of the peace against her husband, or, in return, a husband against his wife. Yet the lower rank of people, who are always fond of the old common law, still claim and exert their ancient privilege, and the courts of law will still permit a husband to restrain a wife of her liberty, in case of any gross misbehaviour. These are the chief legal effects of marriage during the Coverture, upon which we may observe that even the disabilities, which the wife lies under, are for the most part intended for her protection and benefit. So great a favourite is the female sex of the Laws of England. This is a LibriVox recording. All LibriVox recordings are in the public domain. For more information or to volunteer, please visit LibriVox.org. Recording by J. C. Guan. Commentaries on the Laws of England by William Blackston Book 1 Chapter 16 Of Parent and Child The next and the most universal relation in nature is immediately derived from the preceding, being that between parent and child. Children are of two sorts, legitimate and spurious, or bastards, each of which we shall consider in their order and first of legitimate children. 1. A legitimate child is he that is born in lawful wedlock or with any competent time afterwards. Pater is quém nuptier des monstants, is the role of the civil law, and this holds with the civilians, whether the nuptials happened before or after the birth of the child. With us in England the role is narrowed, for the nuptials must be precedent to the birth, of which more will be said when we come to consider the case of bastardy. At present, let us inquire into, 1. The legal duties of parents to their legitimate children. 2. Their power over them. 3. The duties of such children to their parents. 1. And first, the duties of parents to legitimate children, which principally consist in three particulars. 1. Their maintenance, their protection, and their education. 1. The duty of parents to provide for the maintenance of their children is a principle of natural law. 1. An obligation, says Perfendorf, laid on them not only by nature herself, but by their own proper act, in bringing them into the world. For they would be in the highest manner injurious to their issue, if they only gave the children life, that they might afterwards see them perish. By begetting them, therefore, they have entered into a voluntary obligation. To endeavour, as far as in them lies, that the life which they have bestowed shall be supported and preserved. And thus, the children will have a perfect right of receiving maintenance from their parents. And the President Montesquieu has a very just observation upon his head, that the establishment of marriage in all civilised states is built on this natural obligation of the father to provide for his children. For that ascertains and makes known the person who is bound to fulfil this obligation. Whereas, in promiscuous and illicit conjunctions, the father is unknown, and the mother finds a thousand obstacles in her way. Shame, remorse, the constraints of her sex, and the rigor of laws, that stifle her inclinations to perform this duty. And besides, she generally wants ability. The municipal laws of all well-regulated states have taken care to enforce this duty. Though providence has done it more effectively than any laws, by implanting in the breast of every parent a natural or insuperable degree of affection, which not even the deformity of person or mind, nor even the wickedness, ingratitude, and rebellion of children, can totally suppress or extinguish. The civil law obliges the parent to provide maintenance for his child. And if he refuses, you dex, de ea, recognoset. Nay, it carries this matter so far, that it will not suffer a parent at his death totally to disinherit his child, without expressly giving his reason for doing so. And there are fourteen such reasons, reckoned up, which may justify such disinheriton. If the parent alleged no reason, or a bad, or false one, the child might set the will aside. Tanquan testamentum inofisiosum. A testament contrary to the natural duty of the parent. And it is remarkable under what color that the children were to move for relief in such a case, by suggesting that the parent had lost the use of his reason when he made the inofficious testament. And this, as Perfendoff observed, was not to bring into dispute the testitous power of disinheriting his own offspring, but to examine the motives upon which he did it, and if they were found defective in reason, then to set them aside. But perhaps this is going rather too far, every man has, or ought to have, by the laws of society, a power over his own property. And, as Grosius very well distinguishes, natural rights oblige us to give a necessary maintenance to children. But what is more than that? They have no other right, too, than, as it is given them by the favor of their parents, or the positive constitutions of the municipal law. Let us next see what provision our own laws have made for this natural duty. It is a principle of law that there is an obligation on every man to provide for those descended from his loins, and the manner in which this obligation shall be performed is thus pointed out. The father and mother, grandfather and grandmother of poor, impotent persons, shall maintain them at their own charges, if of sufficient ability, according as the court's sessions shall direct. And if a parent runs away, and leaves his children, the church wardens and overseers of the parish shall seize his rents, goods, and chattels, and dispose of them towards their relief. By the interpretations which the courts of law have made upon these statutes, if a mother or grandmother marries again, and was before such second marriage of sufficient ability to keep the child, the husband shall be charged to maintain it. For this being adept of hers, when single, shall, like others, extend to charge the husband. But at her death, the relation being dissolved, the husband is under no further obligation. No person is bound to provide a maintenance for his issue, unless where the children are impotent and unable to work, either through infancy, disease, or accident. And then is only obliged to find them with necessaries, the penalty on refusal, being no more than twenty shillings a month. For the policy of our laws, which are ever watchful to promote industry, did not mean to compel a father to maintain his idle and lazy children in ease and indolence, but thought it unjust to oblige the parent, against his will, to provide them with superfluities and other indulgencies of fortune, imagining they might trust the impulse of nature, if the children were deserving of such favours. Yet, as nothing is so apt to stifle the cause of nature as religious bigotry, it is enacted that if any popish parent shall refuse to allow his protestant child a fitting maintenance, with a view to compel him to change his religion, the Lord Chantler shall by order of court constrain him to do what is just and reasonable. But this did not extend to persons of another religion, of no less bitterness and bigotry than the popish. And therefore, in the very next year, we find an instance of a Jew of immense riches, whose only daughter having embraced Christianity, he turned her out of doors, and on her application for relief, it was helped she was entitled to none. But this gave occasion to another statute, which ordains that if Jewish parents refuse to allow their protestant children a fitting maintenance, suitable to the fortune of the parent, the Lord Chantler, on complaint, might make such order therein as he shall see proper. Our law has made no provision to prevent the disinheriting of children by will, leaving every man's property in his own disposal, upon a principle of liberty in this, as well as every other action. Though perhaps it had not been amiss if the parent had been bound to leave them at the least a necessary subsistence. By the custom of London indeed, which was formerly universal throughout the kingdom, the children of free men are entitled to one third of their father's effects, to be equally divided among them, of which he cannot deprive them. And among persons of any rank or fortune, a competence is generally provided for younger children, and the bulk of the estate settled upon the eldest by the marriage articles. Heirs also and children are favorites of our courts of justice, and cannot be disinherited by any dubious or ambiguous words. They are being required the utmost certainty of the testator's intentions to take away the right of an heir. From the duty of maintenance, we may easily pass to that of protection, which is also a natural duty, but rather permitted than enjoyed by any municipal laws. Nature, in this respect, working so strongly as to need rather a check than a spur. A parent may, by our laws, maintain and uphold his children in their lawsuit, without being guilty of the legal crime of maintaining quarrels. A parent may also justify an assault and battery in defense of the persons of his children, nay, where a man's son was beaten by another boy, and the father went near a mile to find him, and there revenge his son's quarrel by beating the other boy, of which beating he afterwards died. It was not held to be murder, but manslaughter merely. Such indulgence does the law show to the frailty of human nature and the workings of parental affection. The last duty of parents to their children is that of giving them an education suitable to their station in life, a duty pointed out by reason, and of far the greatest importance of any. For, as puffin' of, very well observes, it is not easy to imagine, or allow, that a parent has conferred any considerable benefit upon his child by bringing him into the world, if he afterwards entirely neglects his culture and education, and suffers him to grow up like a mere beast, to lay their life useless to others, and shameful to himself. Yet the municipal laws of most countries seem to be defective in this point, by not constraining the parent to bestow a proper education upon his children. Perhaps they thought it punishment enough to leave the parent, who neglects the instruction of his family, to labor under those griefs and inconveniences, which his family, so uninstructed, will be sure to bring upon him. Our laws, though their defects in this particular cannot be denied, have in one instance made a wise provision for breeding of the rising generation. Since the poor and laborious part of the community, when passed to the age of nurture, are taken out of the hands of their parents by the statutes for apprenticing poor children, and are placed out by the public in such a manner as may render their abilities, in their several stations, of the greatest advantage to the common wealth. The rich indeed are left at their own option, whether they will breed up to their children to be ornaments or disgraces to their family. Yet in one case, that of religion, they are under peculiar restrictions, for it is provided that if any person sends any child under his government beyond the seas, either to prevent its good education in England, or in other to enter into, or reside in any Popish college, or to be instructed, persuaded, or strengthened in the Popish religion. In such case, besides the disabilities incurred by the child so sent, the parent or person sending shall forfeit one hundred pounds, which shall go to the sole use and benefit of him that shall discover the offense. And if any parent or other shall send or convey any person beyond sea, or to enter into, or be resident in, or trained up in any priory, abbey, nunnery, Popish university, college, or school, or house of Jesuits, or priests, or in any private Popish family in order to be instructed, persuaded, or confirmed in the Popish religion, or shall contribute anything towards their maintenance when abroad by any pretext whatever, the person both sending and sent shall be disabled to sue in law or equity, or to be executor or administrator to any person, or to enjoy any legacy or deed of gift, or to bear any office in the realm, and draw forfeit all his goods and chattels, and likewise all his real estate for life. Two. The power of parents over their children is derived from the former consideration, their duty. This authority being given them partly to enable the parent more effectively to perform his duty, and partly as a recompense for his care and trouble in the faithful discharge of it. And upon this core the municipal laws of some nations have given a much larger authority to the parents than others. The ancient Roman laws gave the father a power of life and death over his children, upon this principle that he who gave had also the power of taking away. But the rigor of these laws was softened by subsequent constitutions, so that we find a father banished by the emperor Hadrian for killing his son, though he had committed a very heinous crime, upon this maxim, that quote, but still they maintained to the last a very large and absolute austerity, for a son could not acquire any property of his own during the life of his father, but all his acquisitions belonged to the father, or at least the profits of them for his life. The power of a parent by our English laws is much more moderate, but still sufficient to keep the child in order and obedience. He may lawfully correct his child being underage in a reasonable manner, for this is for the benefit of his education. The consent or concurrence of the parent to the marriage of his child underage was also directed by our ancient law to be obtained. But now it is absolutely necessary, for without it the contract is void. And this also is another means which the law has put into the parent's hands in order the better to discharge his duty. First of protecting his children from the snares of artful and designing persons, and next of settling them properly in life by preventing the ill consequences of too early and precipitated marriages. A father has no other power over his son's estate than as his trustee or guardian, for though he may receive the profits during the child's minority, yet he must account for them when he comes of age. He may indeed have the benefit of his children's labour while they live with him and are maintained by him, but this is no more than he is entitled to from his apprentices or servants. The legal power of a father, for a mother as such is entitled to no power but only to reference and respect. The power of a father, I say, over the persons of his children seizes at the age of twenty-one, for they are then enfranchised by arriving at years of discretion, or that point which the law has established, as some must necessarily be established, when the empire of the father, or the other guardian, gives place to the empire of reason. Yet till that age arrives, this empire of the father continues even after his death, for he may by his will appoint a guardian to his children. He may also delegate part of his parental authority during his life to the tutor or schoolmaster of his child, who is then in local parentice and has such a portion of the power of the parent committed to his charge, this, that of restraint and correction, as may be necessary to answer the purpose for which he is employed. The duties of children to their parents arise from a principle of natural justice and retribution. For two those who gave us existence we naturally owe subjection and obedience during our minority and honour and reverence ever after. They who protected the weakness of our infancy are entitled to our protection in the infirmity of their age. They who by sustenance and education have enabled their offspring to prosper, ought in return to be supported by that offspring in case they stand in need of assistance. Upon this principle proceed all the duties of children to their parents, which are enjoined by positive laws, and Athenian laws carried this principle into practice with a scrupulous kind of nice day, obliging all children to provide for their father when fallen into poverty, with an exception to superior children, to those whose chastity had been prostituted by consent of the father, and to those whom he had not put in any way of gaining a livelihood. The legislature, says Baron Montesquieu, considered that in the first case the father being uncertain had rendered it a natural obligation precarious, that in the second case he had sullied the life he had given and done his children the greatest of injuries in depriving them of their reputation, and that in the third case he had rendered their life so far as in him lay an insupportable burden by furnishing them with no means of subsistence. Our laws agree with those of Athens with regard to the first only of these particulars, the case of spurious issue. In the other cases the law does not hold the tie of nature to be dissolved by any misbehavior of the parent, and therefore a child is equally justifiable in defending the person or maintaining the cause of suit of a bad parent as a good one, and is equally compelable, if of sufficient ability, to maintain and provide for a wicked and unnatural progenitor, as for one who has shown the greatest tenderness and parental piety. Section 2 We are next to consider the case of illegitimate children or bastards with regard to whom let us inquire, 1. Who are bastards? 2. The legal duties of the parents towards a bastard child. 3. The rights and incapacities attending such bastard children. 1. Who are bastards? A bastard by our English laws is one that is not only begotten, but born out of lawful matrimony. The civil and canon laws do not allow a child to remain a bastard if the parents afterwards intermarry, and herein they differ most materially from our law, which, though not so strict as to require that the child shall be begotten, it makes it an indispensable condition that it shall be born after lawful wedlock. And the reason of our English law is surely much superior to that of the Roman. If we consider the principle end and design of establishing the contract of marriage taken in a civil light, abstractedly, from any religious view, which has nothing to do with the legitimacy or illegitimacy of the children. The main end and design of marriage, therefore, being to a certain and fix upon some certain person to whom the care, the protection, the maintenance, and the education of the children should belong, this end is undoubtedly better answered by legitimating all issues born after wedlock than by legitimating all issues of the same parties even born before wedlock. So as wedlock afterwards ensues, one, because of the very great uncertainty there will generally be in the proof that the issue was really begotten by the same man, whereas by confining the proof to the birth and not to the begetting, our law has rendered it perfectly certain what child is legitimate and who is to take care of the child. Two, because by the Roman laws a child may be continued a bastard or made legitimate at the option of the father and mother by a marriage ex post facto, thereby opening a door to many frauds and partialities which by our law are prevented. Three, because by those laws a man may remain a bastard till forty years of age and then become legitimate by the subsequent marriage of his parents whereby the main end of marriage, the protection of infants, is totally frustrated. Four, because this role of the Roman laws admits of no limitations as to the time or number of bastard so to be legitimated. But a dozen of them may, twenty years after their birth by the subsequent marriage of their parents, be admitted to all the privileges of legitimate children. This is plainly a great discouragement to the matrimonial state to which one main inducement is usually not only the desire of having children but also the desire of procreating lawful heirs. Whereas our constitution guard against this indecency and at the same time give sufficient allowance to the frailties of human nature. Four, if a child be begotten while the parents are single and they will endeavour to make an early reparation for the offence by marrying within a few months after our law is so indulgent as not to bastardize the child if it be born though not begotten in lawful wedlock. For this is an incident that can happen but once since all future children will be begotten as well as born within the rules of honour and civil society. Upon reasons like these we may suppose the peers to have acted at the Parliament of Merton when they refused to enact that children born before marriage should be esteemed legitimate. From what has been said it appears that all children born before matrimony are bastards by our law and so it is for all children born so long after the death of the husband that by the usual course of gestation they could not be begotten by Tim. But this being a matter of some uncertainty the law is not exact as to the few days and this gives occasion to a proceeding at common law where a widow is suspected to feign herself with child in order to produce a superstitious heir to the estate an attempt which the rigor of the Gothic constitutions esteemed equivalent to the most atrocious theft and therefore punished with death. In this case with us the heir presumptive may have a writ de ventre insibisendo to examine whether she will be with child or not which is entirely comfortable to the practice of the civil law and if the widow be upon due examination found not pregnant any issue she may afterwards produce though within nine months will be bastard but if a man dies and his widow soon after marries again and the child is born within such a time as that by the course of nature it might had been the child of either husband in this case he is sent to be more than ordinarily legitimate for he may when he arrives to years of discretion choose which of the fathers he pleases to prevent this among other inconveniences the civil law ordained that no widow should marry infra-anum luctus a role which obtains so early as the reign of Augustus if not of Romulus and the same constitution was probably handed down to our early ancestors from the Romans during their stay in this island for we find it established under the Saxons and Danish governments as bastards may be born before the coverage or a marriage state is begun or after it is determined so also children born during wedlock may in some circumstances be bastards as if the husband be out of the kingdom of England or as the law somewhat loosely phrases it extra quattur maria for above nine months so that no access to his wife can be presumed her issue during that period shall be bastard but generally during the coverage access of the husband shall be presumed unless the country can be shown which is such a negative as can only be proved by showing him to be elsewhere for the general rule is in a divorce if the wife breeds children they are bastards for the law will presume the husband and wife conformable to the sentence of separation and access be proved but in a voluntary separation by agreement the law will suppose access unless the negative be shown so also if there is an apparent impossibility of procreation on the part of the husband as if he be only eight years old or the like there the issue of the wife shall be bastard likewise in case of divorce in the spiritual court all the issue born during the coverage are bastards because such divorce is always upon some cause that rendered the marriage unlawful and null from the beginning two let us next see the duty of parents to their bastard children by our law which is principally that of maintenance for though bastards are not looked upon as children to any civil purposes yet the ties of nature of which maintenance is one is absolutely dissolved and they hold indeed as to many other intentions as particularly that a man shall not marry his bastard sister or daughter the civil law therefore when it denied maintenance to bastards begotten under certain atrocious circumstances was neither consonant to nature nor reason however profligate and wicked the parents might justly be esteemed the method in which the English law provides maintenance for them is as follows is delivered or declares herself with child of a bastard and will by us before a justice of peace charge any person having got her with child the justice shall cause such person to be apprehended and commit him till he gives security either to maintain the child or appear at the next quarter sessions to dispute and try the fact but if the woman dies or is married before delivery or miscarries or proves not to have been with child the person shall be discharged otherwise the sessions or two justices out of sessions upon original application to them may take order for the keeping of the bastard by charging the mother or the reputed father with the payment of money or other sustentation for that purpose and if such putative father or lewd's mother run away from the parish the overseers by direction of two justices in order to bring up the said bastard child yet such is the humanity of our laws that no woman can be compulsively questioned concerning the father of her child till one month after the delivery which indulgence is however very frequently a hardship upon parishes by suffering the parents to escape three I proceed next to the rights and incapacities which are pertain to a bastard the rights are very few being only such as he can acquire for he can inherit nothing being looked upon as the son of nobody and sometimes called Philius Nulius sometimes Philius Populi yet he may gain a surname by reputation though he has none by inheritance all other children have a settlement in their father's parish but a bastard in the parish were born as a father however in case of fraud as if a woman be sent either by order of justices or comes to beg as a vagrant to a parish which she does not belong to and drops her bastard there the bastard shall in the first case be settled in the parish from whence she was illegally removed or in the latter case in the mother's own parish if the mother be apprehended for her vagrancy consists principally in this that he cannot be heir to any one neither can he have heirs but of his own body for being Nulius Philius he is therefore the kin of nobody and has no ancestor from whom any inheritable blood can be derived a bastard was also in strictness incapable of holy orders and though that were dispensed with yet he was utterly disqualified from holding any dignity in the church but this doctrine seems now absolute and in all other respects there is no distinction between a bastard and another man and really any other distinction but that of not inheriting which civil policy renders necessary would with regard to the innocent offspring of his parents crimes be odious, unjust and cruel to the last degree and yet this civil law for boasted for its equitable decisions made bastards in some cases incapable even of a gift from their parents a bastard may lastly be made legitimate and capable of inheriting by the transcendent power of an act of parliament and not otherwise and was done in the case of John of Gant's bastard children by a statute of Richard II and of section 45 of the Laws of England, Book I this is a LibriVox recording all LibriVox recordings are in the public domain for more information or to volunteer please visit LibriVox.org commentaries on the Laws of England by William Blexton Book I, Chapter 17 Chapter 17 of Guardian and Ward the only general private relation now remaining to be discussed is that of Guardian and Ward which bears very near resemblance and derived out of it the Guardian being only a temporary parent that is for so long a time as the Ward is an infant or underage in examining this species of relationship I shall first consider the different kinds of guardians how they are appointed and their power and duty next the different ages of persons as defined by the law and lastly the privileges and disabilities of an infant or one underage forms the office of both the tutor and curator of the Roman Laws the former of which had the charge of the maintenance and education of the minor the latter the care of his fortune or according to the language of the court of chancery the tutor was the committee of the person the curator the committee of the estate but this office was frequently united in the civil law as it always is in our law with regard to minors though as to lunatics and idiots it is commonly kept distinct the first are guardians by nature vis the father and in sub cases the mother of the child for if an estate be left to an infant the father is by common law the guardian and must account to his child for the profits and with regard to daughters it seems by the construction of the statute four and five Philip and Mary that the father might by deed or will assign a guardian to any woman child under the age of sixteen and if none be so assigned there are also guardians for nurture which are of course the father or mother till the infant attains the age of fourteen years and in default of the father or mother the ordinary usually assign some discreet person to take care of the infant's personal estate and to provide for his maintenance and education next are guardians and suckage an appellation which will be fully explained in the second book of these commentaries who are also called guardians by the common law these take place only when the minor is entitled to some estate and lands and then by the common law the guardianship devolves upon his next of kin to whom the inheritance cannot possibly descend as where the estate descended from his father in this case his uncle by the mother's side cannot possibly inherit this estate and therefore shall be the guardian for the law judges it improper to trust the person of an infant in his hands who may by possibility become heir to him that there may be no temptation nor even suspicion of temptation for him to abuse his trust the roman laws proceeded on a quite contrary principle committing the care of the minor to him who is the next to succeed to the inheritance presuming that the next year would take the best care of an estate to which he has a prospect of succeeding and this they boast to be summa providentia but in the meantime they forget how much it is in the guardians interest to remove the encumbrance of his pupil's life from the estate for which he is supposed to have so great a regard and this affords for Tescu and Sir Edward Koch an ample opportunity for triumph they affirming that to commit the custody of an infant to him that is next in secession is quasi-agnum comitere lupo ad divorandum these guardians and suckage like those for nurture continue only until the minor is fourteen years of age for then in both cases he is presumed to have discretion so far as to choose his own guardian this he may do unless one be appointed by father by virtue of the statute 12 Charles II C-24 which considering the imbecility of judgment in children of the age of fourteen and the abolition of guardianship in chivalry which lasted till the age of twenty-one and of which we shall speak hereafter enacts that any father under age or a full age may by deed or will dispose of the custody of his child either born or unborn to any person except a popish recusant either in possession or reversion till such child attains the age of one in twenty years these are called guardians by statute or testamentary guardians there are also special guardians by custom of London and other places but they are particular exceptions and do not fall under the general law the power and reciprocal duty of a guardian and ward and pro tempore as that of a father and child and therefore I shall not repeat them but shall only add that the guardian when the ward comes of age is bound to give him an account of all that he has transacted on his behalf and must answer for all losses by his willful default or negligence in order therefore to prevent disagreeable contests with young gentlemen it has become a practice for many guardians of large estates especially to indemnify themselves in the direction and accounting annually before the officers of that court for the Lord Chancellor is by right derived from the crown the general and supreme guardian of all infants as well as idiots and lunatics that is of all such persons as have not discretion enough to manage their own concerns in case therefore any guardian abuses his trust the court will check and punish him they sometimes proceed to the removal let us next consider the ward or person within age for whose assistance and support these guardians are constituted by law or who it is that is said to be within age the ages of male and female are different for different purposes a male at twelve years old may take the oath of allegiance at fourteen is that years of discretion and therefore may consent or disagree to marriage may choose his guardian and if his discretion be actually proved may make his testament may be an executor and at twenty one is in his own disposal and may alien his lands goods and chattels a female also at seven years of age may be betrothed or given in marriage at nine is entitled to dower at twelve is at years of maturity and therefore may consent or disagree to marriage and if proved to have sufficient discretion may bequeath her personal estate at fourteen is at years of legal discretion and may choose a guardian at seventeen may be executrix and at twenty one may dispose of herself and her lands so that full age in male or female is twenty one years which age is completed with the day proceeding the anniversary of a person's birth who till that time is an infant and so styled in law among the ancient greeks and romans women were never of age but subject to perpetual guardianship unless when married nisi coveniscent in manum viri and when that perpetual tutelage wore away in process of time as well as males full age was not till twenty five years thus by the constitutions of different kingdoms this period which is merely arbitrary and jurist positivity is fixed at different times scotland agrees with england on this point both probably copying from the old saxon constitutions on the continent which extended the age of minority at anum visigidum primum at aeusca juvenis sub tutelum repuntant but in naples at the age of eighteen in france with regard to marriage not till thirty and in holland at twenty five third infants have various privileges and various disabilities but their very disabilities are privileges in order to secure them from hurting themselves by their own improvident acts an infant cannot be sued but under the protection and joining the name of his guardian for he is to defend him for he is to be his next friend who is not his guardian this proshena me may be any person who will undertake the infant's cause and it frequently happens that an infant by his proshena me institutes a suit in equity against a fraudulent guardian in criminal cases an infant of the age of fourteen years may be capital punished for any capital offense but under the age of seven he cannot be judged to prima facia innocent yet if he was doly capox and could discern between good and evil at the time of the offense committed he may be convicted in an undergo judgment and execution of death though he hath not attained two years of puberty or discretion and Sir 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 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 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 these 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 latches or negligence be imputed to an infant except in some very particular cases it is generally true that an infant can neither alien 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 and first it is true that infants cannot alien their estates but infant trustees or mortgages are able to convey under the direction of the court of chancery or exchequer the estates they hold in trust or mortgage to such persons as the court shall appoint also it is generally true that an infant can do no legal act yet an infant who has an avouson may present to the benefits when it becomes void for the law in this case dispenses with one rule it is 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 debarded of his right by laps to the bishop an infant may also purchase lands but his purchase is incomplete for when he comes of 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 generally true that an infant under 21 can make no deed that is of any force or effect yet 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 generally 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, physique and other such necessaries and likewise for his good teaching and instruction for himself afterwards and thus much at present for the privileges and disabilities of infants end of section 46 section 41 part 1 of chapter 8 of the commentaries on the laws of England book 1 this is a LibriVox recording all LibriVox recordings are in the public domain for more information or to volunteer please visit LibriVox.org commentaries on the laws of England by William Blackstone book 1 chapter 18 part 1 chapter 18 of corporations we 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 of individual 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 forever those rights and immunities which if they were granted only to those individuals of which the body corporate is composed or death be utterly lost and extinct to show the advantages of these incorporations let us consider the case of a college in either of our universities founded as studentum et orandum for the encouragement of support of religion and learning if this was 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 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 who are connected as themselves so also with regard to holding estates or other property if land be granted for the purposes of religion or learning to 20 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 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 sort of municipal laws of this little republic or rules and statutes may be prescribed to it at its 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 forever vested without any new conveyance to the owners that have existed from the foundation to the present time or that shall ever hereafter exist but are 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 composite are changing every instant the honor of originally inventing these political constitutions entirely belongs to the Romans they were introduced as Plutarch says by Numa who finding upon his secession the city torn to pieces by the Romans thought it a prudent and politic measure to subdivide these two into many smaller ones by instituting 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 Caligia from being gathered together they were adopted also by the canon law for the maintenance of ecclesiastical discipline 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 Facient Caligia though they held that if a corporation originally consisting of three persons be reduced to one see Universitatis at Unum Redit it may still subsist as a corporation at Stett Noemann 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 corporations is into aggregate and sole corporations aggregate consist of many persons united together into one society and are kept up by a perpetual however of which kind are the mayor and commonality 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 in 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 pre-bendiaries 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 churches the freehold of the church the churchyard the parsonage house the gleeb and the tithes of the parish were vested in the then parson as a recompense to him for his spiritual care of the inhabitants and with the intent that the same emolument should ever afterwards continue as a recompense for the same care but how was this to be affected the freehold was vested in the parson and if we supposed it vested in his natural capacity on his death it might descend to his heir and would be liable to his debts and encumbrances or at best the heir might be compelable at some trouble and expense to convey these rights and that the parson quatanis parson shall never die any more than the king by making him and his successors a corporation by which means all the original rights of the parsonage are preserved entire to the successor for the present incumbent and his predecessor who lived seven centuries ago are in law one and the same person and what was given to the one was given to the other also another division of corporations either soul or aggregate is into ecclesiastical and lay ecclesiastical corporations are where the members that composed are entirely spiritual persons such as bishops, certain deans and preventiaries all archdeacons parson and vicars which are soul corporations deans and chapters at present and formerly prior and convent abbot and monks and the like bodies aggregate these are erected for the furtherance of religion and the perpetuating the rights of the church lay corporations are of two sorts all are such as are elected for a variety of temporal purposes the king for instance is made a corporation to prevent in general the possibility of an interregnum or vacancy of the throne and to preserve the possessions of the crown and tire for immediately upon the demise of one king his successor is as we have formerly seen in full possession of the regal rights and dignity other lay corporations are erected for the good government of a town a particular district bailiff and burgesses or the like some for the advancement and regulation of manufacturers and commerce as the trading companies of London and other towns and some for the better carrying on of diverse special purposes as church wardens for conservation of the goods of the parish the college of physicians and company of surgeons in London for the improvement of the medical science the royal society for the advancement of natural knowledge and the society of antiquarians and among these I am inclined to think the general corporate bodies of the universities of Oxford and Cambridge must be ranked for it is clear they are not spiritual or ecclesiastical corporations being composed of more laymen than clergy neither are they leo-moscenary foundations those stipends are annexed to particular magistrates and professors any more than other corporations where the acting officers have standing salaries for these are rewards pro apora not charitable donations only if every stipend is preceded by service and duty they seem therefore to be merely civil corporations the leo-moscenary sort are such as are constituted for the perpetual distribution of the free alms or bounty of the founder of them to such persons as he has directed of this kind are all hospitals for the maintenance of the poor sick and impotent and all colleges both in our universities and out of them which colleges are founded for two purposes learning by proper regulations and ordinances two for imparting assistance to the members of those bodies in order to enable them to prosecute their devotion and studies with greater ease and assiduity and all these leo-moscenary corporations are strictly speaking lay and not ecclesiastical even though composed of ecclesiastical persons and although they in some things partake of the nature, privileges and restrictions of ecclesiastical bodies having thus marshaled the several species of corporations let us next proceed to consider 1. how corporations in general may be created 2. what are their powers, capacities and incapacities 3. how corporations are visited and 4. how they may be dissolved corporations by the civil law seem to have been created by the mere act and voluntary association of their members provided such convention was not allowed by the civil law for then it was illicitum collegium it does not appear that the princess consent was necessary to be actually given to the foundation of them but merely that the original founders of these voluntary and friendly societies for they were little more than such should not establish any meetings in opposition to the laws of the state but with us in England the king's consent is absolutely necessary to the erection of any corporation either impliedly or expressly given to the founding corporations which exist by force of the common law to which our former kings are supposed to have given their concurrence common law being nothing else but custom arising from the universal agreement of the whole community of this sort are the king himself all bishops, parson's, vickers church wardens and some others who by common law have ever been held as far as our books can show us to have been corporations Bertite officii and this incorporation is so deeply annexed to their offices that we cannot frame a complete legal idea of any of these persons but we must also have an idea of a corporation capable to transmit his rights to his successors at the same time another method of implication whereby the king's consent is presumed is to all corporations by prescription such as the city of London and many others which have existed as corporations time whereof the memory of man is not to the contrary and therefore are looked upon in law to be well created for though the members thereof can show no legal charter of incorporation yet in cases of such high antiquity the law presumes there once was one and that by the variety of accidents which a length of time may produce the charter is lost or destroyed the methods by which the king's consent is expressly given are either by act of parliament or charter which the king's consent is a necessary ingredient corporations may undoubtedly be created but it is observable that most of those statutes which are usually cited as having created corporations do either confirm such as have been before created by the king as in the case of the college of physicians erected by charter 10th Henry VIII which charter was afterwards confirmed in parliament or they permit the king to erect of the bank of England and the society of the British fishery so that the immediate creative act is usually performed by the king alone in virtue of his royal prerogative all the other methods therefore whereby corporations exist by common law by prescription and by act of parliament are for the most part reducible to this of the king's letters patent or charter of incorporation the king's creation may be performed by the words cramous and corpromus or the like nay it is held that if the king grants to a set of men to have gildum mercantorium a mercantile merger or assembly this alone is sufficient to incorporate and establish them forever the parliament we observe by its absolute and transcendent authority may perform this or any other act whatsoever and actually did perform it to a great extent by statute 39th Elizabeth C. V. which incorporated all hospitals and houses of correction founded by charitable persons without further trouble and the same has been done in other cases of charitable foundations but otherwise it is not usual thus to entrench upon the prerogative of the crown and the king may prevent it when he pleases and in the particular instance before mentioned it was done as Sir Edward Koch observes to avoid the charges of incorporation which in his days were grown so great that it discouraged many men to undertake these pious and charitable works the king may grant to a subject the power of erecting corporations though the contrary was formerly held that he may permit the subject to name the persons and powers of the corporation at his pleasure but it is really the king that erects and the subject is but the instrument for none but the king can make a corporation in this manner the Chancellor of the University of Oxford has power by charter to erect corporations and has actually often exerted it in the erection of several matriculated companies now subsisting of tradesmen subservient to the students when a corporation is erected a name must be given it and by that name alone it must sue and be sued and do all legal acts though a very minute variation is there in not material such a name is the very being and though it is the will of the king that erects the corporation yet the name is the knot of its combination without which it could not perform its corporate functions the name of incorporation says Sir Edward Coke is a proper name or name of baptism and therefore when a private founder gives his college or hospital a name he does it only as godfather and by that same name the king baptizes the incorporation end of section 47 part two of chapter 18 of the commentaries on the laws of England book one this is a LibriVox recording all LibriVox recordings are in the public domain for more information or to volunteer please visit LibriVox.org commentaries on the laws of England by William Blackstone book one chapter 18 part two after a corporation is so formed and named it acquires many powers rights capacities and incapacities which we are next to consider some of these are necessarily and inseparably incident to every corporation which incidents as soon as a corporation is duly erected are tacitly annexed of course as one to have perpetual succession this is the very end of its incorporation for there cannot be a succession forever without an incorporation and therefore all aggregate corporations have a power necessarily implied of electing members in the room of such as go off two to sue or be sued impede or be impleted grant or receive by its corporate name and do all other acts as natural persons may three to purchase lands and hold them for the benefit of themselves and their successors which two are consequential to the former four to have a common seal for a corporation being an invisible body cannot manifest its intentions by any personal act or oral discourse it therefore acts and speaks only by its common seal some members may express their private contents to any act by words or signing their names yet this does not bind the corporation it is the fixing of the seal and that only which unites the several ascents of the individuals who compose the community and makes one joint ascent of the whole five to make bylaws or private statutes for the better government of the corporation which are binding upon themselves unless contrary to the laws of the land and then they are buoyed by law in the very active incorporation for its natural reason is given to the natural body for the governing it so bylaws or statutes are a sort of political reason to govern the body politic and this right of making bylaws for their own government not contrary to the law of the land was allowed by the law of the twelve tables at Rome but no trading company is with us allowed to make bylaws which may affect the king's prerogative or the common profit of the people treasurer and chief justices or the judges of the assizes in their circuits these five powers are inseparably incident to every corporation at least to every corporate aggregate for two of them though they may be practiced yet are very unnecessary to a corporation soul viz to have a corporate seal to testify his sole ascent and to make statutes for the regulation of his own conduct there are also certain privileges and disabilities that attend to such as their soul the reason of them ceasing and of course the law it must always appear by attorney for it cannot appear in person being as Sir Edward Coke says invisible and existing only in intendment and consideration of law it can neither maintain or be made defendant to an action of battery or such like personal injuries for a corporation can neither beat nor be beaten in its body politic a corporation cannot commit treason in its own capacity though its members may in their distinct individual capacities neither is it capable of suffering traitors or felons punishment for it is not liable to corporal penalties nor to a tainter forfeiture or corruption of blood it cannot be executor or administrator or perform any personal duties for it cannot take an oath for the due execution of the office it cannot be a trustee for such kind of confidence to perform such a trust because it cannot be committed to prison for its existence being ideal no man can apprehend or arrest it and therefore also it cannot be outlawed for outlawry always supposes a precedent right of arresting which has been defeated by the parties absconding and that also a corporation cannot do for which reasons the proceedings to compel a corporation to appear to any suit by attorney are always by distress on their lands neither can a corporation be excommunicated for it has no soul as is gravely observed by Sir Edward Koch and therefore also it is not liable to be summoned into the ecclesiastical courts upon any account for those courts act only prosalute anime and their sentences can only be enforced by spiritual censures a consideration which carry to its full extent would alone demonstrate the impropriety of these courts interfering in any temporal rights whatsoever there are also other incidents and powers which belong to some sort of corporations and not to others an aggregate corporation may take goods and chattels for the benefit of themselves and their successors but a sole corporation cannot for such movable property is liable to be lost or embezzled and would raise a multitude of disputes between the successor and executor which the law is careful to avoid in ecclesiastical and elliomostinary foundations the king or the founders may give them and ordinances which they are bound to observe but corporations merely lay constituted for civil purposes are subject to no particular statutes but to the common law and to their own bylaws not contrary to the laws of the realm aggregate corporations also that have by their constitution ahead as a dean, warden, master or the like cannot do any acts during the vacancy of the headship except only appointing another are they then capable of receiving a grant for such corporation is incapable without a head but there may be a corporation aggregate constituted without a head as the collegiate church of south well and nottingham share which consists only of preventaries and the governors of the charter house london who have no president or superior but are all of equal authority in aggregate corporations also the act of the major part is esteemed the act of the whole must have consisted of two-thirds of the whole else no act could be performed which perhaps may be one reason why they required three at least to make a corporation but with us any majority is sufficient to determine the act of the whole body and where as notwithstanding the law stood thus some founders of corporations had made statutes in derogation of the common law making very frequently the unanimous ascent of the society to be necessary to any corporate act or election to his projected scheme of obtaining a surrender of the lands of ecclesiastical corporations it was therefore enacted by statute thirty-three henry the eighth c twenty-seven that all private statutes shall be utterly void whereby any grant or election made by the head with the concurrence of the major part of the body is liable to be obstructed by any one or more being the minority but this statute extends not to any negative or necessary voice we have before observed that it was incident to every corporation to have a capacity to purchase lands for themselves and successors and this is regularly true at the common law but they are accepted out of the statute of wills so that no device of lands to a corporation by will is good except for charitable uses by statute forty-three elizabeth c four and also by a great variety of statutes their privilege even of purchasing from any living grantor is greatly abridged so that no corporation either ecclesiastical or lay must have a license from the king to purchase before they can exert that capacity which is vested in them by the common law nor is even this in all cases sufficient these statutes are generally called the statutes of mortemen all purchases made by corporate bodies being said to be purchases in mortemen in mortua manu for the reason of which Appalachian Sir Edward Koch offers many conjectures but there is one reason for this vis that these purchases being usually made by ecclesiastical bodies the members of which being professed were reckoned dead persons in law land therefore holden by them might with great propriety be said to be held in mortua manu I shall defer the more particular exposition of these statutes of mortemen till the next book of these commentaries when we shall consider the nature and tenures of estates and also the exposition of grain, spiritual and elliomoscenary corporations from alienating such lands as they are present in legal possession of only mentioning them in this place for the sake of regularity as statutable in capacities incident and relative to corporations 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 three I proceed therefore next to inquire how these corporations may be visited for corporations being composed of individuals subject to human frailties are liable as well as private persons to deviate from the end of their institution and for that reason the laws provided proper persons to visit inquire into and correct all of regularities that arise in such corporations either soul or aggregate and whether ecclesiastical with regard to all ecclesiastical corporations the ordinary is their visitor so constituted by the canon law and from thence derived to us the pope formerly and now the king as supreme ordinary is the visitor of the archbishop or metropolitan the metropolitan has the charge and coercion of all his suffrage and bishops and the bishops in their several dioceses are the visitors of all deans and chapters with respect to all lay corporations the founder his heirs or signs are the visitors whether the foundation be civil or elemessenary for in a lay corporation the ordinary neither can nor ought to visit I know it is generally said that civil corporations are subject to no visitation but merely to the common law of the land and this shall be presently explained but first as I have laid it down as a rule that the founder his heirs or signs are the visitors let us inquire what is meant by the founder the founder of all corporations in the strictest and original sense is the king alone for he only can incorporate a society and in civil corporations such as mayor and commonality etc where there are no possessions or endowments given to the body there is no other founder but the king but in elemessenary foundations such as colleges and hospitals where there is an endowment of lands the law distinguishes and makes two species of foundation the one Fondatio and Scipiens or the incorporation in which sense the king is the general founder of all colleges and hospitals the other Fondatio proficians 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 and it is in this last sense that we generally call a man the founder of a college or hospital but here the king has his prerogative and a private man joined in endowing an elemessenary foundation the king alone shall be the founder of it and in general the king being the sole founder of all civil corporations and the endower the proficient founder of all elemessenary ones the ride of visitation of the former results according to the rule lay down to the king and of the latter to the patron or endower the king being thus constituted by law the visitor of all civil corporations the law has also appointed a place wherein he shall exercise this jurisdiction which is the court of the king's bench where and where only all misbehavours of this kind of corporations are inquired into and redressed and all their controversies decided and this is what I understand to be the meaning of our lawyers when they say that these civil corporations are liable to know visitation that is that the law having by immemorial usage appointed them to be visited and inspected by the king the court of king's bench according to the rules of the common law they ought not to be visited elsewhere or by any other authority and this is so strictly true that though the king by his letters patent had subjected the college of physicians 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 nearly a century yet in 1753 the authority of this provision coming in dispute on an appeal preferred to those supposed visitors they directed the legality of their own appointment to be argued and as this college was a mere civil and not an elliomussinary foundation they at length determined upon several days solemn debate that they had no jurisdiction as visitors and remitted the appellant if agreed to his regular remedy in his majesty's court of the king's bench as to elliomussinary corporations by the dotation the founder and his heirs are of common right the legal visitors to see that the property is rightly employed which would otherwise have descended to the visitor himself but if the founder has appointed and assigned any other person to be visitor then his assigned ease so appointed is invested with all the founders power in exclusion of his heir elliomussinary corporations are chiefly hospitals or colleges in the university or all of them considered by the popish clergy as of mere ecclesiastical jurisdiction however the law of the land judged otherwise and with regard to hospitals it has long been held that if a hospital be spiritual the bishop shall visit but if lay the patron this right of lay patrons was indeed abridged by statute 2nd Henry V.C.1 which ordained that the ordinary should visit all hospitals founded by subjects though the king's right was reserved to visit by his commissioners were of royal foundation but the subjects right was in part restored by statute 14th Elizabeth C.5 which directs the bishop to visit such hospitals only where no visitor is appointed by the founders thereof and all the hospitals founded by virtue of the statute 39 Elizabeth C.5 are to be visited by such persons as shall be nominated by the respective founders but still 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 considered by the Popesh clergy under whose direction they were as ecclesiastical or at least clerical corporations and therefore the right of visitation was claimed by the ordinary of the diocese this is evident because in many of our most ancient colleges where the founder had a mind to subject them to a visitor of his own nomination he obtained for that purpose several of which are still preserved in the archives of the respective societies and I have reason to believe that in one of our colleges wherein the bishop of that diocese in which Oxford was formerly comprised has immemorally exercised visitorial authority there is no special visitor appointed by the college statutes so that the bishop's interposition can be ascribed to nothing else but his supposed title as ordinary to visit this among other ecclesiastical foundations and it is not impossible that the number of colleges in Cambridge which are visited by the bishop of Eli may in part be derived from the same original but whatever might be formerly the opinion of the clergy it is now held as an established common law that colleges are lay corporations though sometimes totally composed of ecclesiastical persons and that the right of visitation does not arise from any principles of the canon law and yet the power and jurisdiction of visitors in colleges was left so much in the dark at common law that the whole doctrine was very unsettled till King William's time in the sixth year of whose reign the famous case of Phillips and Brewery happened in this the main question was whether the sentence of the bishop of Exeter who as visitor had deprived Dr. Brewery the rector of Exeter College could be examined and redressed by the court of King's bench and the judges were of opinion that it might be reviewed for that the visitor's jurisdiction could not exclude the common law and accordingly judgment was given at that court but the Lord Chief Justice Holt was of a contrary opinion and held up by the common law the office of visitor is to judge according to the statutes of the college and to expel and deprive upon just occasions and to hear all appeals of course and that from him and him only the party grieved ought to have redressed the entire confidence that he will administer justice impartially that his determinations are final and examinable in no other court whatsoever and upon this a writ of error being brought in the House of Lords they reversed the judgment of the court of King's bench and concurred in Sir John Holt's opinion and to this leading case all subsequent determinations have been conformable but where the visitor is under a temporary disability there the court of King's bench and the court of Lord Chief Justice thus the Bishop of Chester is visitor of Manchester College but happening also to be warden the court held that his power was suspended during the union of those offices and therefore issued a peremptory mandamus to him as warden to admit a person entitled to a chaplain ship also it is said that if a founder of an elliomasonary foundation appoints a visitor and limits his jurisdiction by rules and statutes his jurisdiction lies against him but it is otherwise where he mistakes in a thing within his power four we come now in the last place to consider how corporations may be dissolved any particular member may be disenfranchised or lose his place in the corporation by acting contrary to the laws of the society or the laws of the land or he may resign it by his own voluntary act but the body politic may also itself be dissolved in several ways which dissolution is the civil death of the corporation and in this case their lands and tenements shall revert to the person or his heirs who granted them to the corporation for the law doth annex a condition to every such grant that if the corporation be dissolved the grantor shall have the lands again because the cause of the grant faileth the grant is indeed only during the life of the corporation which may endure forever but when that life is determined by the dissolution of the body politic the grantor takes it back by reversion as in the case of every other grant for life and hence it appears how injurious as well to private as public rights those statutes were which vested in King Henry VIII instead of the heirs of the founder the lands of the dissolved monasteries the debts of a corporation either to or from it are totally extinguished by its dissolution so that the members thereof cannot recover or be charged with them in their natural capacities agreeable to that maxim of the civil law see quid universitati debitur singulus non debitur neck quad debit universitas singuli debit a corporation may be dissolved one by active parliament which is boundless in its operations two by the natural death of all its members in case of an aggregate corporation three by surrender of its franchises into the hands of the king which is a kind of suicide or 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 there upon the incorporation is void and the regular course is to bring a writ of coeronto 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 the state in which Charles and King James II particularly by seizing the charter of the city of London gave great unjust offense though perhaps in strictness of law the proceedings were sufficiently regular but now it is enacted that the charter of the city of London shall never more be forfeited for any cause whatsoever and because the common law corporations were dissolved in case the mayor or head officer was not duly elected on the day appointed in the charter no corporation shall be dissolved upon that account and ample directions are given for appointing a new officer in case there be no election or avoid one made upon the charter or prescriptive day end of section 48 end of the first book of the commentaries on the laws of England by William Blackstone