The parliament, we obſerved, by it's abſolute and tranſcendent authority, may perform this, or any other act whatſoever: and actually did perform it to a great extent, by ſtatute 39 Eliz. c. 5. which incorporated all hoſpitals and houſes of correction founded by charitable perſons, without farther trouble: and the ſame has been done in other caſes of charitable foundations. But otherwiſe it is not uſual thus to intrench 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 Coke obſerves[1], to avoid the charges of incorporation and licences of mortmain in ſmall benefactions; which in his days were grown ſo great, that they diſcouraged many men from undertaking theſe pious and charitable works.
The king (it is ſaid) may grant to a ſubject the power of erecting corporations[2], though the contrary was formerly held[3]: that is, 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 though none but the king can make a corporation, yet qui facit per alium, facit per ſe[4]. 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 therein is not material[5]. Such name is the very being of it's conſtitution; and, though it is the will of the king that erects the corporation, yet the name is the knot of it's combination, without which it could not perform it's corporate functions[6]. The name of incorporation, ſays
