town, beyond the fixth part of the faid taillages and burthens, contrary to a concord made before the Barons of the Exchequer, about that affair, in the twenty-seventh year of Henry the third. The defendants came and pleaded, that they did not cause the plaintiffs to be diftrained, contrary to the faid concord; but defired that it might remain in force.

THE power of fuing collective bodies of men, not incorporated, in fome particular cafes, has been likewise granted by act of parliament, where the remedy, by common law, was fuppofed not to be adequate to the injury fuftained; of this kind is the action against the hundred, on the ftatute of Winchester, for not raising hue and cry(a); and fuch is the action given by the statute 8 H. 6, c. 27, to the inhabitants of Tewkesbury, in the county of Gloucester, against the commonalty of the foreft of Dean.

THE cafe of "Prince Edward's men," and "the Abbot of Burgh's men," before mentioned, is a proof, that the capacity of contracting in a collective capacity, was not, in ancient times, confined to a corporation.

DEFINITION and DESCRIPTION of a CORPORATION.

THE union of the feveral circumstances, mentioned in this comparison, between a corporation

and other communities, feems to conftitute the very effence of a corporation; from which, it is prefumed, the following definition will convey a pretty accurate idea of what a corporation is.

A CORPORATION then, or a body politic, or body incorporate, is a collection of many individuals, united into one body, under a special denomination, having perpetual fucceffion under an artificial form, and vefted, by the policy of the law, with the capacity of acting, in feveral respects, as an individual, particularly of taking and granting property, of contracting obligations, and of fuing and being fued, of enjoying privileges and immunities in common, and of exercifing a variety of political rights, more or less extenfive, according to the defign of its inftitution, or the powers conferred upon it, either at the time of its creation, or at any fubfequent period of its existence.

THE words corporation, and incorporation, are frequently confounded, particularly in the old books; the diftinction between them is this; a corporation is a political institution; incorporation is the act by which that inftitution is created.

A CORPORATION has been called "a mere capacity to fue and be fued, and to take and to grant" (a); which is as ridiculous as is would be

(a) Treby's Arg. in Qu. War. 3, 4.

to

to fay that a man is a mere capacity to walk with two feet" (a). It is not a capacity, but a litical perfon, in which many capacities refide.

:

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A CORPORATION has also been called a franchife (b) the propriety of this appellation depends on the more or lefs extenfive meaning in which the word "franchise" is used; in its most extenfive fenfe it expreffes every political right which can be enjoyed or exercised by a freeman; in this sense, the right of being tried by a jury, the right a man may have to an office, the right of voting at elections, may, with propriety, be called franchises; and in this sense, the right of acting, as a corporation, may be called a franchise, exifting collectively in all the individuals of whom the corporation is compofed; in this sense, and in this sense alone, "the franchise of being a corporation," can have any precife meaning.

In a lefs general and more appropriate sense, the word "franchife" means a royal privilege in the hands of a fubject (c), by which he either receives fome profit, or has the exclusive exercise of fome right; of the first kind are the goods of felons, waifs, eftrays, wrecks, or the like; of the fecond

(a) Sawyer's Arg. in Qu. War. 11.

(b) Finch's Arg. per tot. Sawyer's Arg. 7, 8, 11, 12.

(c) Finch's Law, 164.

are

are courts, gaols, return of writs, fairs, markets, and many others. They are eftates and inheri→ tances, which may be granted and conveyed from one to another, as other estates, which is not the cafe with a corporation (a); in this sense a corporation cannot be called a franchife; the latter is a privilege, or liberty, which can have no existence without reference to fome perfon to whom it may belong; the former is a political person, capable, like a natural perfon, of enjoying a variety of franchises; it is to a franchise, as the substance to its attribute; it is fomething to which many attributes belong; but is itself something diftinct from those attributes.

SEVERAL other epithets have been given to a corporation, which, unless particularly explained, are apt to bewilder and mislead the understanding: thus it has been said, that "a corporation aggregate of many, is invifible, immortal, and refts only in intendment and confideration of the law" (b); that it is "a mere metaphyfical being, a mere Ens rationis” (c).

THAT a body framed by the policy of man, a body whofe parts and members are mortal, should in its own nature be immortal, or that a body

(a) Pollexfen's Arg. 98.

(b) 10 Co. 32 b. and the authorities there cited.

(c) Vid. Treby's Arg, 4 et paffim.

compofed

composed of many bulky, visible bodies, fhould be invifible, in the common acceptation of the words, feems beyond the reach of common understandings. A corporation is as visible a body as an army; for though the commiffion or authority be not seen by every one, yet the body, united by that authority, is seen by all but the blind: When, therefore, a corporation is faid to be invisible, that expreffion must be understood, of the right in many perfons, collectively, to act as a corporation, and then it is as vifible in the eye of the law, as any other right whatever, of which natural persons are capable; it is a right of such a nature, that every member, Separately confidered, has a freehold in it, and all, jointly confidered, have an inheritance, which may go in fucceffion (a). Natural perfons, as fuch, are capable of taking and holding this right, which is not taken or held in their politic, but in their natural capacity (b); for many men, as men, are capable of union, which, if it requires proof or illuftration, is evident from the charters of creation, and the pleadings in all fuch cases, in which it is faid, that the "men and burgeffes," or "the men and citizens," are conftituted one body corporate or politic (c). And as the natural

(a) James Bagg's cafe. 11 Co. 98 b. as cited in Sawyer's Arg. 8.

(b) 10 Co. 26 b.

(c) Sawyer, ibid.

perfons