Commentaries on the Laws of England Part 43

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[b]. And, with regard to daughters, it seems by construction of the statute 4 & 5 Ph. & Mar. c. 8. that the father might by deed or will a.s.sign a guardian to any woman-child under the age of sixteen, and if none be so a.s.signed, the mother shall in this case be guardian[c]. There are also guardians _for nurture_[d], which are, of course, the father or mother, till the infant attains the age of fourteen years[e]: and, in default of father or mother, the ordinary usually a.s.signs some discreet person to take care of the infant's personal estate, and to provide for his maintenance and education[f]. Next are guardians _in socage_, (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 ent.i.tled to some estate in lands, and then by the common law the guardians.h.i.+p 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[g]. 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[h]. The Roman laws proceed 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 heir would take the best care of an estate, to which he has a prospect of succeeding: and this they boast to be "_summa providentia_[i]." But in the mean time they forget, how much it is the guardian's interest to remove the inc.u.mbrance of his pupil's life from that estate, for which he is supposed to have so great a regard[k]. And this affords Fortescue[l], and sir Edward c.o.ke[m], an ample opportunity for triumph; they affirming, that to commit the custody of an infant to him that is next in succession, is "_quasi agnum committere lupo, ad devorandum_[n]." These guardians in socage, like those for nurture, continue only till 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 Car. II. c. 24.

which, considering the imbecillity of judgment in children of the age of fourteen, and the abolition of guardians.h.i.+p _in chivalry_ (which lasted till the age of twenty one, and of which we shall speak hereafter) enacts, that any father, under age or of 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 and twenty years.

These are called guardians _by statute_, or _testamentary_ guardians.

There are also special guardians _by custom_ of London, and other places[o]; but they are particular exceptions, and do not fall under the general law.

[Footnote b: Co. Litt. 88.]

[Footnote c: 3 Rep. 39.]

[Footnote d: Co. Litt. 88.]

[Footnote e: Moor. 738. 3 Rep. 38.]

[Footnote f: 2 Jones 90. 2 Lev. 163.]

[Footnote g: Litt. --. 123.]

[Footnote h: _Nunquam custodia alicujus de jure alicui remanet, de quo habeatur suspicio, quod possit vel velit aliquod jus in ipsa hereditate clamare._ Glanv. _l._ 7. _c._ 11.]

[Footnote i: _Ff._ 26. 4. 1.]

[Footnote k: The Roman satyrist was fully aware of this danger, when he puts this private prayer into the mouth of a selfish guardian;

_Pupillum o utinam, quem proximus haeres Impello, expungam._ Perf. 1. 12.]

[Footnote l: _c._ 44.]

[Footnote m: 1 Inst. 88.]

[Footnote n: This policy of our English law is warranted by the wise inst.i.tutions of Solon, who provided that no one should be another's guardian, who was to enjoy the estate after his death. (Potter's Antiqu. l. 1. c. 26.) And Charondas, another of the Grecian legislators, directed that the inheritance should go to the father's relations, but the education of the child to the mother's; that the guardians.h.i.+p and right of succession might always be kept distinct.

(Pet.i.t. _Leg. Att._ _l._ 6. _t._ 7.)]

[Footnote o: Co. Litt. 88.]

THE power and reciprocal duty of a guardian and ward are the same, _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 wilful 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 by applying to the court of chancery, acting under it's 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; nay sometimes proceed to the removal of him, and appoint another in his stead[p].

[Footnote p: 1 Sid. 424. 1 P. Will. 703.]

2. LET us next consider the ward, or person within age, for whose a.s.sistance and support these guardians are const.i.tuted 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 at 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 of his personal estate; at _seventeen_ may be an executor; and at _twenty one_ is at his own disposal, and may aliene his lands, goods, and chattels. A female also at _seven_ years of age may be betrothed or given in marriage; at _nine_ is ent.i.tled 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 on the day preceding the anniversary of a person's birth[q]; who till that time is an infant, and so stiled in law. Among the antient Greeks and Romans _women_ were never of age, but subject to perpetual guardians.h.i.+p[r], unless when married, "_nisi convenissent in manum viri_:" and, when that perpetual tutelage wore away in process of time, we find that, in females as well as males, full age was not till twenty five years[s]. Thus, by the const.i.tutions of different kingdoms, this period, which is merely arbitrary, and _juris positivi_, is fixed at different times. Scotland agrees with England in this point; (both probably copying from the old Saxon const.i.tutions on the continent, which extended the age of minority "_ad annum vigesimum primum, et eo usque juvenes sub tutelam reponunt_[t]") but in Naples they are of full age at _eighteen_; in France, with regard to marriage, not till _thirty_; and in Holland at _twenty five_.

[Footnote q: Salk. 44. 625.]

[Footnote r: Pott. Antiq. l. 4. c. 11. Cic. _pro Muren._ 12.]

[Footnote s: _Inst._ 1. 23. 1.]

[Footnote t: Stiernhook _de jure Sueonum._ _l._ 2. _c._ 2. This is also the period when the king, as well as the subject, arrives at full age in modern Sweden. Mod. Un. Hist. x.x.xiii. 220.]

3. 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 against all attacks as well by law as otherwise[u]: but he may sue either by his guardian, or _prochein amy_, his next friend who is not his guardian. This _prochein amy_ may be any person who will undertake the infant's cause; and it frequently happens, that an infant, by his _prochein amy_, inst.i.tutes a suit in equity against a fraudulent guardian. In criminal cases, an infant of the age of _fourteen_ years may be capitally punished for any capital offence[w]: but under the age of _seven_ he cannot. The period between _seven_ and _fourteen_ is subject to much incertainty: for the infant shall, generally speaking, be judged _prima facie_ innocent; yet if he was _doli capax_, and could discern between good and evil at the time of the offence committed, he may be convicted and undergo judgment and execution of death, though he hath not attained to years of p.u.b.erty or discretion[x]. 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; for it appeared by his hiding that he knew he had done wrong, and could discern between good and evil; and in such cases the maxim of law is, that _malitia supplet aetatem_.

[Footnote u: Co. Litt. 135.]

[Footnote w: 1 Hal. P.C. 25.]

[Footnote x: 1 Hal. P.C. 26.]

WITH regard to estates and civil property, an infant hath many privileges, which will be better understood when we come to treat more particularly of those matters: but this may be said in general, that an infant shall lose nothing by non-claim, or neglect of demanding his right; nor shall any other _laches_ or negligence be imputed to an infant, except in some very particular cases.

IT is generally true, that an infant can neither aliene his lands, nor do any legal act, nor make a deed, nor indeed any manner of contract, that will bind him. But still to all these rules there are some exceptions; part of which were just now mentioned in reckoning up the different capacities which they a.s.sume at different ages: and there are others, a few of which it may not be improper to recite, as a general specimen of the whole. And, first, it is true, that infants cannot aliene their estates: but[y] infant trustees, or mortgagees, are enabled to convey, under the direction of the court of chancery or exchequer, the estates they hold in trust or mortgage, to such person as the court shall appoint. Also it is generally true, that an infant can do no legal act: yet an infant who has an advowson, may present to the benefice when it becomes void[z]. For the law in this case dispenses with one rule, in order to maintain others of far greater consequence: it permits an infant to present a clerk (who, if unfit, may be rejected by the bishop) rather than either suffer the church to be unserved till he comes of age, or permit the infant to be debarred of his right by lapse to the bishop. An infant may also purchase lands, but his purchase is incomplete: for, when he comes to age, he may either agree or disagree to it, as he thinks prudent or proper, without alleging any reason; and so may his heirs after him, if he dies without having completed his agreement[a]. It is, farther, generally true, that an infant, under twenty one, can make no deed that is of any force or effect: yet[b] he may bind himself apprentice by deed indented, or indentures, for seven years; and[c] 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, physic, and such other necessaries; and likewise for his good teaching and instruction, whereby he may profit himself afterwards[d]. And thus much, at present, for the privileges and disabilities of infants.

[Footnote y: Stat. 7 Ann. c. 19.]

[Footnote z: Co. Litt. 172.]

[Footnote a: Co. Litt. 2.]

[Footnote b: Stat. 5 Eliz. c. 4.]

[Footnote c: Stat. 12 Car. II. c. 24.]

[Footnote d: Co. Litt. 172.]

CHAPTER THE EIGHTEENTH.

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 kept on foot and continued, to const.i.tute artificial persons, who may maintain a perpetual succession, and enjoy a kind of legal immortality.

THESE artificial persons are called bodies politic, bodies corporate, (_corpora corporata_) or corporations: of which there is a great variety subsisting, for the advancement of religion, of learning, and of commerce; in order to preserve entire and for ever those rights and immunities, which, if they were granted only to those individuals of which the body corporate is composed, would upon their death be utterly lost and extinct. To shew the advantages of these incorporations, let us consider the case of a college in either of our universities, founded _ad studendum et orandum_, for the encouragement and support of religion and learning. If this was a mere voluntary a.s.sembly, 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 a.s.sembly has the right, or ability, to defend them? And, when they are dispersed by death or otherwise, how shall they transfer these advantages to another set of students, equally unconnected as themselves? So also, with regard to holding estates or other property, if land be granted for the purposes of religion or learning to twenty individuals not incorporated, there is no legal way of continuing the property to any other persons for the same purposes, but by endless conveyances from one to the other, as often as the hands are changed.

But, when they are consolidated and united into a corporation, they and their successors are then considered as one person in law: as one person, they have one will, which is collected from the sense of the majority of the individuals: this one will may establish rules and orders for the regulation of the whole, which are a sort of munic.i.p.al laws of this little republic; or rules and statutes may be prescribed to it at it's creation, which are then in the place of natural laws: the privileges and immunities, the estates and possessions, of the corporation, when once vested in them, will be for ever vested, without any new conveyance to new successions; for all the individual members that have existed from the foundation to the present time, or that shall ever hereafter exist, are but one person in law, a person that never dies: in like manner as the river Thames is still the same river, though the parts which compose it are changing every instant.

THE honour of originally inventing these political const.i.tutions entirely belongs to the Romans. They were introduced, as Plutarch says, by Numa; who finding, upon his accession, the city torn to pieces by the two rival factions of Sabines, and Romans, thought it a prudent and politic measure, to subdivide these two into many smaller ones, by inst.i.tuting separate societies of every manual trade and profession. They were afterwards much considered by the civil law[a], in which they were called _universitates_, as forming one whole out of many individuals; or _collegia_, from being gathered together: they were adopted also by the canon law, for the maintenance of ecclesiastical discipline; and from them our spiritual corporations are derived. But our laws have considerably refined and improved upon the invention, according to the usual genius of the English nation: particularly with regard to sole corporations, consisting of one person only, of which the Roman lawyers had no notion; their maxim being that "_tres faciunt collegium_[b]." Though they held, that if a corporation, originally consisting of three persons, be reduced to one, "_si universitas ad unum redit_," it may still subsist as a corporation, "_et stet nomen universitatis_[c]."

[Footnote a: _Ff._ _l._ 3. _t._ 4. _per tot._]

[Footnote b: _Ff._ 50. 16. 85.]

[Footnote c: _Ff._ 3. 4. 7.]

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 succession of members, so as to continue for ever: of which kind are the mayor and commonalty of a city, the head and fellows of a college, the dean and chapter of a cathedral church. Corporations sole consist of one person only and his successors, in some particular station, who are incorporated by law, in order to give them some legal capacities and advantages, particularly that of perpetuity, which in their natural persons they could not have had. In this sense the king is a sole corporation[d]: so is a bishop: so are some deans, and prebendaries, distinct from their several chapters: and so is every parson and vicar. And the necessity, or at least use, of this inst.i.tution 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 church-yard, the parsonage house, the glebe, and the t.i.thes of the parish, were vested in the then parson by the bounty of the donor, as a temporal recompence to him for his spiritual care of the inhabitants, and with intent that the same emoluments should ever afterwards continue as a recompense for the same care. But how was this to be effected? The freehold was vested in the parson; and, if we suppose it vested in his natural capacity, on his death it might descend to his heir, and would be liable to his debts and inc.u.mbrances: or, at best, the heir might be compellable, at some trouble and expense, to convey these rights to the succeeding inc.u.mbent. The law therefore has wisely ordained, that the parson, _quatenus_ 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 inc.u.mbent, 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.