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The Case of Sutton’s Hospital. - Sir Edward Coke, Selected Writings of Sir Edward Coke, vol. I 
The Selected Writings and Speeches of Sir Edward Coke, ed. Steve Sheppard (Indianapolis: Liberty Fund, 2003). Vol. 1.
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The Case of Sutton’s Hospital.
(1612) Michaelmas Term, 10 James I
In the Court of the King’s Bench, before all the Judges of England. First Published in the Reports, volume 10, page 23a.*
Ed.: Parliament passed an act to enable Thomas Sutton to establish a hospital and school in the then-defunct foundation of Charterhouse School. James I granted a license to Sutton to found a hospital for the relief of the needy and a school for the maintenance of poor scholars, appointing Sutton as head of the hospital for life and giving the governors of the school and their successors the license to appoint the head after his death. Sutton purchased the old buildings of Charterhouse in London and established there the Hospital of King James and appointed a master to serve or be dismissed at Sutton’s will, (and would be re-established in 1872 in Godalming, Surrey). Richard Sutton and John Lawe were arrested for trespassing on the grounds. They raised many objections to the existence of the foundation in defense. The King’s Bench rejected their concerns, in the process inventorying many of the obligations in chartering a corporation, or at least a charitable corporation, making this opinion one of the foundations of the law of corporations. Coke lists the governors established in the charter of the school and hospital, who include not only himself but most of the leadingmembers of the bench.
In the King’s Bench Between Simon Baxter, Plaintiff, and Richard Sutton and John Law, Defendants, in an action for trespass, de eo quod ipsi1 30 May 10 Jac. a Capital Messuage called the Charter-house in the parish of St. Sepulchre, in the County of Middlesex, freger’ & intraver’2 upon not guilty pleaded. The whole special matter was found (which you may see at length, Mich. 10. Jacobi Rot. 574, in the Kings Bench). And the same was adjorned out of the Court of the King’s Bench by the Judges of the same Court, into the Exchequer Chamber; and was there argued at the Bar by John Walter [of the Inner Temple] Yelverton of Gray’s Inn, and by Bacon Solicitor General for the Plaintiff, and for the defendant by Coventry of the Inner Temple, Hutton, Serjeant at Law, and by Hobart, Attorney General. And the Plaintiff’s Counsel argued very strongly in general: 1. That there was not any Incorporation created by the King’s Letters Patents, dated 22 Junii 9 Jac. Regis. 2. Admitting the incorporation was good; yet there was not any Foundation made by Sutton according to the authority given to him. 3. That the bargain and sale made by Sutton, bearing date 1 Nov. 9 Jac. was utterly void, and by consequence all the said possessions descendible to the Plaintiff. And in the argument of this Case, these points upon these grounds were moved:
1. Objection Postea 24.b.1. It is Objected that by the Act of Parliament, 9 Feb. 7 Jac. Reg. mentioned in the Record, An Hospital was legally erected and Incorporated, at Hallingbury in the County of Essex; and all the said Manors given to it; and by consequence the said Corporation made after the said |[23 b] Act by the Letters Patents 22 Junii 9 Jac. Reg. was utterly void. Note reader, the said Act cannot give the said House called the Charter-house, for Sutton purchased it afterwards, viz. 9 May 9 Jac. Reg. as appeareth by the record.
2. Objection Postea 25.b.2. It was Objected that no Hospital was founded by Sutton, and therefore the Incorporation failed; because that Sutton had the King’s Licence to Found, Erect and establish an Hospital, which was an act precedent to be performed by Sutton before the Incorporation, which he hath not done; and so he hath not pursued his Licence; which Licence the King might have countermanded; and which was countermanded in Law by the death of Sutton.
3. Objection Postea 28.b.3. That the King by his Charter cannot name the House and Inheritance of Sutton to be an Hospital, for that would-be to give a name to an Hospital in alieno solo.3
4. Objection Postea 29.a.4. The place of every Corporation ought to be certain, for without a certain place there cannot be any Incorporation; but here the Licence to Sutton is to Found an Hospital “at or in the Charter house;” so that he may found it in all or any part of the same house, And therefore till Sutton hath founded it certain, there is not any certainty of the place, and by consequence no Corporation. To which was added, That a place by a known name is not sufficient to support the name of an Incorporation, but the same ought to be described by metes and bounds; And divers precedents were cited and shewed, where the Scite of Hospitals, Priories, &c. were so particularly described.
5. Objection Postea 31.b.5. The King by his Letters Patents hath intended to make a present Incorporation, and so his words expressly import. 1. “From henceforth, &c.” And yet no incorporation can be till Sutton hath named a Master, And the Letters Patents bear date 22 Junii 9 Jac. Reg, And the writing of Nomination 30 Octob. Anno 9, And so the Letters Patents are repugnant in themselves and void.
6. Objection Postea 32.a.6. Until there be an actual Hospital and poor in it, there cannot be Governours of them, for Governours ought not to be idle, or as Cyphers in Algorisme; for Governours and Government, are relativa, quae sunt simul tempore,4 and as well in his Will as in other Instruments, he has called it many times his intended Hospital.
7. Objection Postea 33.a.7. To every Corporation a Foundation is requisite; and here is not any Foundation made by Sutton. For first he ought to have per verba praescripta & in terminis terminantibus5 |[24 a] Founded, Erected, and established the said House of Charter-house an Hospital, &c. And the same was likened to Cases of Exchange, frankalmoigne Dedi, warrantizo,6 which are Frank-marriage; quae sunt verba legalia & incompatibilia, &c.7 And divers precedents were shewed to the Justices of building of Hospitals, Schools, &c. wherein the said words of fundo, erigo, &c.8 were used. Secondly, before such lawful foundation made by Sutton, a Stranger could not have given any land or other thing to the Governours. Thirdly, without such Foundation, in time to come it shall not be known who should be the Founder, whereupon confusion would follow.
8. Objection Postea 34.a.8. The nomination of the Master made by Sutton is void for two reasons; one, that he was named to Master but at will, where he ought to be named for life, in as much as he is to have a free-hold in the Land. Also there ought to be at least an actual Hospital Founded by Sutton according to his Licence, before he could nominate a Master of it; For otherwise it shall be a Mathematical or Utopical Hospital.
9. Objection Postea 34.a.9. The said bargain and sale made by Sutton to the Governours was void for three causes. 1. That the money which was the consideration thereof was paid by the private persons of the Governours, and therefore the bargain and sale of the Manors &c. cannot enure to them in their politick capacity. 2. The Habendum9 is to the Governours upon trust and confidence; and a body Politick aggregate of many cannot stand seised in trust and confidence to the use of another. 3. Because no Hospital was founded by Sutton according to his Licence; And for all the other Objections made against the Foundation and Incorporation, the said bargain and sale was void, and by consequence all the said Manors descended to the Plaintiff as Cousin and heir to Sutton.
10. Objection. Postea 34.a.10. That no Hospital was Incorporated by the said Letters Patents, and therefore it was objected, That the King could Incorporate them by the name of Governours, &c. of the Hospital, but of an Hospital in Law, or a Legal Hospital, as it was called; For the Governours cannot plead that they are seised in jure Hospitalis sui,10 because in Law there was not any Hospital.
Which brief Report I have made of these Objections, because I think them, or the greater part of them were not worthy to be moved at the Bar, nor remembered at the Bench. And that this Case was by the Justices adjourned into the Exchequer Chamber |[24 b] more for the weight of the value than for the difficulty of the Law in the case. And the entire Record, as appeareth by the Exceptions, ought to be the Case; which was openly argued in the Exchequer Chamber by all the Judges of England and Barons of the Exchequer, except the Chief Justice of the King’s Bench, who was then sick,The Judges who argued in the case. Sir Robert Houghton, Sir Augustine Nicholls, Sir John Dodderidge, Sir Humfrey Winch, Sir Edward Bromly, Sir John Croke, Sir James Altham, Sir George Snigge, Sir Peter Warburton, Sir Lawrence Tanfield Chief Baron, and Sir Edward Coke, Chief Justice of the Common Pleas. And it was Resolved by them in their arguments (except by Baron Snigge and Justice Croke) that judgment should be given against the Plaintiff, Et quia rectum est judex sui & obliqui.11Maxim. A right linemaketh discovery not only of that which is right, but of that which is wrong and crooked; and the confirmation of the right and truth is the confutation of error and falshood. I will report the effect of the reasons and causes which affirme and confirme the Resolutions of the Judges, which are of so great authority, perspicuity and gravity, that the Objections need not have any particular answer. And yet for the satisfaction of all men, every one of them shall be particularly answered. And because that this Case doth chiefly depend upon the Letters Patents; And the best Exposition of the King’s Charter is upon the consideration of the whole Charter, to expound the Charter by the Charter itself, verba cartae regiae aeque portant suam expositionem;12 and the King’s Letters Patents in this case are viscera causae,Viscera causae.& expositio quae ex visceribus causae nascitur, est aptissima & fortissima in lege.13 All the parts of the Letters Patents were considered, and every material part thereof explained according to the true natural sense, which is the best method, upon the consideration of many others, for the more clear Report of this Case.
Part of the King’s Charter Ans. to 1 Obj. Ante 23.a.The first part of the said Charter viz doth contain a short recital of two things, 1. of the title of the Act of 9 Feb. anno. 9. viz “An Act to confirm and enable the erection and establishment of an Hospital and Free Grammar School, given and intended to be given by Thomas Sutton, Esquire.” which title proveth that no Hospital was founded by the Act itself; but the scope of the Act was to enable Sutton to erect and establish an Hospital, &c. and therefore the title saith, “intended to be given and performed by Thomas Sutton, Esquire;” And also the same appeareth by divers parts of the body of the Act, which are all in futuro & nihil in praesenti.14 |[25 a] Be it enacted, That in the Town of “Halingbury, &c. there may be builded one meet house for abiding of poor people and Scholars, &c.” which are words de futuro15 and it is not certain in what part of the Town the House shall be built. 2. “And that the same shall and may be called and named the Hospital of King James;” which are words also de futuro. 3. “And that the Lord Arch-Bishop of Canterbury, &c. shall and may be Governour, &c. 4. And that the same Governours, &c. shall for ever hereafter stand and be incorporated:” which words ought to be intended to take effect after the erection of the Hospital, &c. in a certain place, &c. And so the construction is in futuro, which well appeareth with the future words following, and may have perpetual succession. 5. “And may for ever hereafter, have, hold, and enjoy, Lordships, Manors, &c. without Licence of Alienation or Licence of Mortmain.” By which it appeareth, that this clause is not in effect, but a Licence to give Manors, Lands, &c. holden in Capite16 without other Licence of Alienation, and also without other Licence of Mortmain. But this clause was superfluous and impertinent if the Land should pass by the Act itself, for then no Licence in those cases was requisite. And without question if it were admitted that there was a Corporation, yet no Lands are given to them by those words, de futuro. Also although the said Lands were given them, yet the King by his Letters Patent cannot create and incorporate an Hospital in the Charter-house, which was purchased after the Act, and the Action of Trespass in the case at Bar is for Trespass done in the Charter-house. But it was answered by all the Justices and Barons of the Exchequer (except Justice Croke) that the Act of 9. Jac. doth not Incorporate the Governours &c. but in futuro, which never took nor could now take effect; and by consequence no Land was or could be given to it. The 2d branch of the recital is of the purchase of the Charter-house after the Act, which, as it is there rehearesed, is more fit and commodious than Hallingbury to be converted into an Hospital.
The second branch of the Charter.In the second part Sutton is a suitor and petitioner to the King for four things: 1. “To give Licence to Found, Erect, and establish an Hospital house, &c. and Free Grammar-School, &c. at or in the Charter-house,” wherein hath been observed the incertainty of the suit, “at or in the Charter-house” or but of that: after. “2. Incorporate the Governors hereafter named;” so that Sutton himself doth name the Governours which the King doth Incorporate. 3. By such name of Incorporation |[25 b] as is hereafter mentioned to have capacity and ability, &c. by which also it appeareth that Sutton doth devise and prescribe the name of the Incorporation; and by all these three clauses it appeareth, That the suit of Sutton and his express consent was, that the Governours should be named of the said House called the Charter-house. 4. Sutton was suitor, “that the Governours, &c. might take in Mortmain for the better maintenance of the said Hospital, Free-school, Preacher,” &c.
The 3d part of the Charter.The third part of the Letters Patent containeth Grants and Acts made by the King in two manners, sc by way of Licence and by way of Grant; of the Licences some are requisite;The division of the Charter. some abundant and not requisite, and some requisite for the sustentation of the poor, &c. and not to the essence of the Corporation; and of the grants, some are in praesenti, and some in futuro, and of each of them some are of necessity, and some explanatory and not of necessity; and those which are of necessity, some are of necessity to the creation of this body politick, and some to the continuance and preservation of it. And into those branches the whole Letters Patents are divided, which shall be observed as they arise and have place in the same Letters Patents. But before all the Licences and Grants, the King doth prefix a preamble, sc. “The King affecting so good a work, of his Princely dispositionandcareforthefurtherance thereof, and that the same may take the better effect, &c.” (wherein appeareth the Honour, Charity, and pious disposition of the King) “giveth Licence to Thomas Sutton, his Heirs, Executors, Administrators, and Assigns, at all times hereafter at their will and pleasure to place, erect, found and establish at or in the said house called the Charter-house, one Hospital house, and place of abiding for the finding, sustentation, and relief of poor, aged, maimed, needy, or impotent people, &c. Also to erect, found, &c. one Free-School for the instruction, teaching and maintenance of poor Children or Scholars, &c. And to place and maintain a learned School-master and Usher to teach and instruct the said Children in Grammar. And also one godly and learned preacher, to Preach and teach the Word of God to all the said persons, poor people, and children, members and officers at or in the said house.” That in the first place doth contain the end of Sutton’s piety and charity:Answer to 2d objection Antea 23. for Sapiens incipit a fine, & quod primum est in intentione ultimum est in executione.17 And that was a grand motive to the King of his Royal authority to give him means, sc. by Creation of a capable body Politick by way of Incorporation, to have perpetual succession, to perfect and perpetuate so pious and charitable a work |[26 a] And that the Incorporation ought to precede the execution of this Licence, is evident by the words and coherence of the Letters Patents, sc. For this Licence is in futuro, sc. To Thomas Sutton, his Heirs, Executors, Administrators and Assigns, “at all times hereafter at their will and pleasure, &c.” so that it is future as well in persons, Heirs, Executors, &c. as in the thing to be done. But when he cometh to the clause of incorporation, he doth it per verba de praesenti tempore:18 “And the said persons and their Successors by the name, &c. We do by these presents for ever hereafter really and fully Incorporate, &c.” By which it followeth, that the Incorporation being present, and the execution of this part of the Licence future, the Incorporation ought of necessity precede the execution of the Licence. Then forasmuch as the principal foundation of the scruple was conceived upon these words, “to found, erect, and establish” the true Etymology and genuine sense of them was considered; and ex vi termini fundare, nihil aliud est quam fundamentum jacere seu ponere, &c.19 to lay the foundation of a building; and in this sense the Holy Ghost (which moved Sutton to this work of Piety) in the Scripture taketh it. And therefore in the 3 King. Chap. 6. verse 37. Fundata est domus anno primo, et Anno 11 perfecta fuit domus in omnia opere suo.20 And 3 King Chap. 16. Verse 34. Edificavit in diebus illis Hiel de Bethel Jerico in Abiram primitivo suo fun-davit, & in Segub novissimo suo posuit portas.21 By which it appeareth that to found, is to lay the foundation of a building, which is the first mechanical part of Architecture. Then when the foundation is laid, then cometh the erection of the House, as it is said by the son of Sirach 49. 15. Erexit nobis muros, & erexit domus nostras.22 And although that the foundation be well laid, and thereupon a building well erected, yet it ought to be well joyned and established, and therefore this word (establish) is added to make the building to have continuance. 2 Kings 13. Stabiliam thronum ejus;23 That is, I will make his throne to have perdurance and continuance. So that to Found, Erect, and establish, are opera laboris, & laboris architector’,24 and that appeareth by the words of the Charter itself, “The King affecting so good a work,” tam bonum opus:25 Also the subsequent words prove it also; “to found, erect, and establish,” what? “an Hospital-house.” So that it clearly appeareth, that the effect of this Licence is to make fit and to finish and furnish an Hospital-house for the habitation of the poor, &c. See after, Mich. 34 and 35 Eliz. the Case of the Hospital of Bridewell for the exposition of these words, fundo, erigo, & stabilio,26 which is a stronger case than this is. And this word (place) in the first place is to be intended, as hath been said, in the last place, scil. To place poor in it, |[26 b] to erect a Free-School for the instruction of youth, and for the maintenance of a Preacher. But how shall this holy and charitable intention (that the same may remain for ever) be produced to an end and effect? The Charter itself shewth it in effect in this manner: It is impossible to take in succession for ever without a capacity; and a capacity to take in succession cannot be without incorporation; and the incorporation cannot be created without the King; for this cause the Charter saith, “And for the maintenance and continuance of the said Hospital, &c. And that the same may take the better effect, That the said persons, &c. be one body Corporate and Politick, to have perpetual succession to endure for ever: We do by these presents for ever hereafter fully and really incorporate, &c. to have capacity and ability to take, &c.” Without this capacity the end cannot take effect for inhabitants of a Town, or other single persons (who have not capacity to take in succession but only to their singular heirs) have capacity to take an incorporation, and after their incorporation they have capacity to take in succession any lands, tenements, or hereditaments; unde sequitur,27 that the incorporation which giveth capacity ought to precede the giving of any lands, &c. Another licence is given to this new incorporation to take in Mortmain. This Licence is not of necessity, either of the essence of the incorporation, or of the continuance of it; but yet it is requisite for the establishing and maintenance of the end, scil. to have the poor sustained, and scholars instructed, &c. For they cannot be maintained without a Revenue, and they cannot take or keep the Revenue (as has been said) without a Licence in Mortmain; and therefore these two, scil. Incorporation and Licence in Mortmain ought to precede the donation. For words to Found, Erect, and establish an Hospital-house, cannot be extended to the Incorporation, for that belongeth only to the King, and that the King doth; Nor to any dotation, for as yet (as hath been said) there is not any capacity. Ergo28 it extendeth onely to the building and finishing of the said house to be a fit habitation for poor, &c. Sutton thinking and rethinking, that as well the incorporation as the Licence in Mortmain were in their several degrees requisite to bring his good and charitable purpose to effect, to the end the King should grant that which was onely in his power to grant, and which he himself without the King could not do; he was a suitor to the King to grant him Licence to do that which of himself in respect of the ownership of land he might do without the King, scil. To build, finish, and furnish the said house for the habitation of |[27 a] poor, as well before the Incorporation as after: But to give it possession, &c. as hath been said he could not, and therefore this Licence was but explanatory to declare what Sutton as owner of the Land might do, either with the King’s Licence or without the King; and therefore, the King cannot countermand this Licence, because it is but declaratory of that which Sutton might do as owner of the Land without any Licence. And this appeareth by the book in 3 H. 7. Fitz. Grant. 36. the Record whereof I have seen, Between John Buckland, term. Vintner plaintiff, in an action of Trespass, and Richard Fowcher, Chaplain Defendant, Sanct. Mich. 2. Hen. 7. Rot. 155., in the King’s Bench, and in the Report at large, Termain senth 2 Hen. 7. 13a, 13b. where the case in effect is, That King Henry the fourth by his Letters Patents, Anno 6 regni sui,29 Reciting that Robert Ramsey was seised in Fee of an house in the parish of St. Margaret in London, called the Sun, &c. notwithstanding the Statute of Mortmain, of his especial grace, and for 20 l. gave Licence to Robert Ramsey, that he might give 20 marks rent, going out of the said house, cuid’ capellano divina celebranti ad altare beatae Mar’ in eccles. S. Magni London’ singul’ diebus pro salubri statu preaed’ Rob’ & Johan’ uxor’ suae, &c. Habend’ & tenend’ eid’ capellano & successorib’ suis capellan’ Cantariae praed’ divina in eccles. praed’ ad altare praed’ pro salubri statu, &c. juxta ordinationem praed’ Rob. in hac parte faciend’ celebrat’ imperpet’, &c.30 And afterwards the said Robert Ramsey by his deed indented 10 Junii 1407, Founded, Ordained, and erected the said Chauntry, and ordained and named one John Meadowe to be the first Chaplain to do the said Divine services; And further by the said deed granted to the said John Meadowe, the first Chaplain, 10 marks of yearly Rent issuing out of the said house, To have to him and his Successors Chaplains of the said Chauntry at four usual Feasts in London to be paid, with clause of distress, to him and his successors; And further appointed by the same deed, That he himself should present to the said Chauntry during his life; and after his decease, that Johanna his wife should present to the same during her life, and after her decease, that the Parson and Church-wardens of the said Church of St. Magnus, and their Successors; and afterwards the said John Meadowe died, and after divers vacations the said Richard Fowcher was presented to the said Chauntry, and for the said Rent behind he entered into the said house the door being open, and took a Cup of the Plaintiff’s for a distress, &c. for which taking the action was brought, upon which matters the parties have demurred in Law: And this case was adjourned into the Exchequer Chamber, and there before all the Judges of England divers Objections were made against this Licenceand Grant. 1. That they were cuidam capellano,31 and named none in certain; and when the King’s Grant is uncertain it is void; as if the King |[27 b] licenses one to give 20 marks Rent, cuid’ Abbati,32 the Grant is void, because it is incertain. 2. There is not such Chaplain till Robert Ramsey hath named and ordained one, so that it appeareth that the Grant should be to such a one who is not in rer’ natura;33 as if the King give Licence to grant to the Mayor and Commonalty of Islington, although the Inhabitants of Islington be afterwards incorporated by the name of Mayor and Commonalty, the Grant is void because there was no such Corporation at the time of the Grant. 3. It was objected that in this case the King hath not made any Incorporation, and Incorporation is a thing to be done only by the King himself; and these words juxta ordination’ per Rob’ Ramsey fiendam,34 shall not enable the said Ramsey to make an Incorporation, for the King cannot give Licence to any to make an Incorporation, but the said words shall give him power to make ordinances, first touching Masses and other Divine Services. 2. of what manner of habit he shall be, 3. to have perpetual succession, scil. elective, presentative, or donative, and that is the effect of the said words, and not to make a Corporation; and the King’s Grant shall not be taken by implication; scil. by the words to make an Incorporation, and also to give Licence to grant the said Rent, for then the King’s Grant shall enure to two intents. 4. Admitting that there shall be an Incorporation by implication; yet the Incorporation ought to be before the Licence, and here the Licence is before the Incorporation, and therefore it is void. 5. The Grant ought to have been that the King gave Licence facere & erigere Cantar’, &c.35 and there were not any such words in the Charter; but only Licence to grant a Rent, &c. cuid’ capellano, &c. 6. The Licence is secundum ordination’ per R. Ramsey fiendam;36 and therefore, the King is deceived, because he cannot have knowledge what ordinance it shall be. 7. It was objected that the distress was without warrant and void, because the Licence did extend to grant a Rent onely without mention of any distress. Which objections I have here gathered out of the book Reported at length, 2 Hen. 7. 13a, 13b. and the Reports of Fitz. in 3 Hen. 7. Grant 36, and out of the Record itself.
As to the first and second Objections, it was Resolved, That the Grant was good, for all the Grants of Chauntrys are of such form, scil. cuid. Capellano, and although there be not such Chaplain at the time it is not to the purpose; For if the King granteth to the Commonalty of Islington that they shall be Incorporated of a Mayor & Bayliffs, and that they have power to choose one, it is good although the Election of the Mayor is future. So Note Reader, a difference betwixt an estate or interest which none can take without present capacity, and a power, liberty or Franchise, or thing newly created, which may take effect in futuro.37 As to the 3 it was Resolved, That whereas the King by his Charter saith cuidam Capellano, it was a sufficient Incorporation; andwhen he saith in the Habendum sibi |[28 a] & successorib’ suis,38 the same makethasufficient succession. And so Note Reader, that this Grant of the King doth enure to three intents, scil. to make an Incorporation, to make a succession, and to grant a Rent. As to the 4. it was Resolved, That where the Licence to Found the Chauntry shall be first, and to grant after, that is needeth not, for it is not material which is before, (for the Law shall construe that first to the effect which ought), but here they are simul & semel.39 As to the 5, That in the Licence there were not words of fundare, erigere, facere;40 It was Resolved, That notwithstanding the Grant was good. Nota,41 reader from this, That to the essence of a Chauntry, or other body politic, two things are onely requisite, scil. an Incorporation and a gift, and not any words of fundare, erigere & stabilire,42 or words to such effect; for no such words were contained in the grant of Henry the fourth and yet it was adjudged a good Chauntry lawfully incorporated and founded. And if such words had been requisite and necessary in Law, the judgment ought to have been given against the Chauntry, because they were left out in the King’s grant. And thereby it appeareth, that in the case at bar, they were explanatory and of abundance: which is a judgment in the point, by the resolution of all the Judges in the Exchequer Chamber. As to the sixth point, it was resolved that these words, secundum ordinationem per R. Ramsey fiendam,43 import sufficient certainty, scil. to make Ramsey to ordain, 1. what Masses and other divine services shall be celebrated, 2. of what habit or order the Chaplain shall be, and 3. whether he shall be elective, presentative, or donative. And by force of these words Ramsey in the case did ordain the same to be presentative by the Rector of the parish of St. Magnus for ever. As to the 7. objection, It appeareth by the Report of Fitzherbert ubi supra,44 that the opinion of the two chief Justices, Hussey and Brian and Starkey, chief Baron, and Fairfax Justice, was, That the distress was without warrant, but Townshend conceived it to be good. But inspecto recordo,45 it was adjudged that the distress was good and well warranted by the grant. For the Chauntry Priest did distrain in the said house for the Rent, and his distress was adjudged lawful, and the Plaintiff barred, And the reasons, as I conceive, were, because the King’s Charters, made for the erectionofpiousandcharitable works shall be always taken in the most favourable and beneficial sense; and the most beneficial rent that a man can grant is a rent charge. 2. The distress is a necessary incident to the Rent, for without that the Grantee shall be without remedy: Verba sunt accipienda cum effectu,46 and words are to be taken with the effect. 2 Edw. 3. 3. Which case I have cited at large, because it is |[28 b] notable and pertinent, and stronger (as I conceive) then the case in question. Secondly, power is given to Sutton “to place a Master of the said Hospital. 3. At all times hereafter to place, erect, found and establish in the said house, &c. one Free-school for instructing youth,” (which well expoundeth the precedent words concerning the Hospital,The 4 branch of the Charter the answer to the 3 objection Antea 23.b. for these words extend onely to make fit and to finish and furnish a Grammar-school within the said Charter-house) “and a learned Preacher to teach all in the word of God. 4. We do by these presents, ordain, constitute, limit and appoint, That the said House and other the premises shall from henceforth be ever hereafter named incorporated and called the Hospital of King James, founded in the Charter-house, within the County of Middlesex, at the humble petition and at the only costs and charges of Thomas Sutton Esquire And the same Hospital and Free-school by the name of the Hospital of King James, &c. We do firmly by these presents erect, found, and establish and confirme, to have continuance for ever.” By this clause, the King in praesenti47 giveth the name of the Hospital, but as it appeareth before, Sutton hath devised it, and hath sued to the King to name it accordingly; and that the name of the incorporation itself. (scil. At the humble suit of Thomas Sutton,) doth import so that as it is said in 38 E.3.14.b. and 21 E.4.56a, 56b. The name of incorporation is as a proper name or name of baptism: In this case Sutton as God-father giveth the name, and by the same name the King doth baptize the incorporation, By which it appeareth that the objection, That the King cannot give a name to an house which is the Inheritance of another, is not of any value, here Sutton has consented and assented to it, and all the same is done at his humble suit. And this objection doth tend to the dissolution of all ancient Deans and Chapters: For at first, as appeareth in the third part of my Reports in the case of the Dean and Chapter of Norwich, All the possessions were to the Bishop, and yet by his assent the Dean and Chapter were incorporate and named of the Cathedral Church, which did then belong to the Bishop only; and afterwards a certain portion was assigned to the Chapter; So that the Chapter was before that they had any possessions; And that is the reason that of common right, the Bishop is Patron of the Prebends that because their possessions were derived from the Bishop, and therefore he was Patron and Founder: And therewith agree 17 E. 3. 40ab., 25 Ass. pl. 8., 10 E. 3. 10., 50 E. 3. 26b., 15 Hen. 7. 11. So that at first the Dean and Chapter were by the assent of the |[29 a] Bishop incorporated and named of the Church Cathedral of the Bishop. And it was said, that questions moved in the Exchequer used to be like spirits which may be raised with much ease, but suppressed and vanquished with much difficulty; but these questions were like ruinous buildings, more easily thrown down then raised and set up. And all the arguments which have been made against this honourable work of charity, are hatched out of meer conceit and invention, without any ground of Law, and such which have any colour were utterly mistaken.Answer to the 4 objection Antea 23.b. And as to the fourth Exception, That the place of every corporation ought to be certain; and Sutton sueth and the King licenceth Sutton to found, erect, &c. an Hospital “at or in the Charter-house,” which was incertain; To that the Charter expressly answereth That the King by this clause doth ordain, &c. “That the said House and other the premises, shall from henceforth for ever hereafter be, remain, &c. and shall ever hereafter be named and called the Hospital of King James, founded in the Charter house:” So that all the house and premises are baptized by the King by the name of the Hospital, &c. in which is no shadow of incertainty, and therefore Suttonas to the Licence for the mechanical part, which (as has been said) was abundant, to get and finish all or any part of the house for an Hospital, &c. yet all the house itself, Orchards and Gardens &c. are named by the name of the Hospital. And it was observed, That the King by this clause not onely nameth the said house to be an Hospital; but by the name of the Hospital to be erected, founded, established, and confirmed; so that the King nameth it, and leaves the mechanical part to Sutton to perform. And of the same importance is the other Objection, That a known name is not sufficient to found an Hospital, but it ought to be described by metes and bounds, as in divers precedents hath been used; for it appearth in Willim de Londres’ case, 2 E. 3. 36b. Adam brought a Scire facias48 against Willim de Londres of the manor of E. the Defendant pleaded that he himself is Master of the Hospital of St. Bartholomew and so beareth the name of dignity not named judgment of the writ: to which the Plaintiff replied That which the Defendant Calleth an Hospital is the Manor of East Smithfield, and was a Manor at the time of the fine levied: And it was holden by the Court, That by this Writ he ought to have the Manor, as the Manor was at the time of the fine levied; And whereas the manor was made an Hospital after the fine, by this suit he is to defeat your estate and your name, and accordingly it was ruled that the Writ was good. Which proveth that a manor (which imports more certainty and variety than an house known by a certain name) may be created into an Hospital. And in 15 Ass. pl. 8. John de Derbie’s case,The 5 clause of the Charter. A Manor made Corpus praebend’.49 The fifth Clause stands upon two Branches: “1. for the better |[29 b] maintenance and continuance of the said Hospital, &c. and that the same may take the better effect, and that the Revenues may be the better governed and imployed there shall be sixteen Governours, and names fifteen of them by express name, and such person as from time to time shall be Master, to be the first and present governors. 2. And the said persons and their successors, by the name of Governours of the Lands, &c. one body incorporate and politick, by that name to have perpetual succession for ever to endure, We do by these presents for ever hereafter really and fully incorporate,” and the words of this clause are verba operativa.50Verba operativa. The division of corporations. And it is to know, That every Corporation or Incorporation, or body Politick and Incorporate, who are all one, either stand upon one sole person, as the King, Bishop, Parson, &c. or aggregate of many, as Mayor and Commonalty, Dean and Chapter, &c. and these are in the Civil Law are called Universitas sive Collegium.51What things are the essence of a corporation Now it is to see what things are of the essence of a Corporation. 1. Lawful authority of Incorporation; and that may be by four means, scil. by the Common Law, as the King himself, &c. by authority of Parliament; by the King’s Charter (as in this case) and by prescription. The 2. which is of the essence of the Incorporation, are persons to be incorporated, and that in two manners, persons natural, or bodies incorporate and political. 3. A name by which they are Incorporated; as in this case Governors of the Lands. &c. 4. Of a place, for without a place no Incorporation can be made; and here the place is the Charter-house in the County of Middlesex. Vide 3 Hen. 6 Det. 20. 17 Edw. 3. 59b. & 45 Edw. 3. 27. 5. By words sufficient in Law, but not restrained to any certain, legal and prescript form of words. And for as much as good pleading is lapis Lydius,52 the touch-stone of the true sense and knowledge of the Common law; the form of pleading of an Incorporation by prescription is to be observed, for in such case he ought to prescribe in every thing which is of the essence of the Incorporation. In the Book of Entries, Quare Impedit 1. the pleading is, Quoddam Hospitale Sanctae Mariaede Bristow de uno magistro, & conventu a toto tempore, &c. incorporat’ fuerunt per nomen Magistri & Conventus Hospitalis Sanct’ Mariae de Bristow:53 and there it appeareth that: there they purchased Lands and Tenements, and were impleaded without any prescription for the one or the other, because theyareincorporated by prescription by a certain name; then to implead and be impleaded, to grant and purchase, are incidents to a body incorporate. M. 15 Hen. 7. Rot. 522. in the Common Pleas there the prescription is Custos & vicarii collegii vicariorum in choro |[30 a] Hereford sunt & a toto tempore, &c. fuerunt incorporat’ per nomen Custodis et Vicar’ Collegii Vicariorum in Choro Hereford’:54 and there also they purchased and were impleaded as incidents to the incorporation. Lib’ Intrat’ tit’ Ass. fol. 68. Magister, fratres, et sorores fraternitatis sive guildae novem ordinum sanctorum Angelorum juxta Brainford55 brought an assise: the tenant pleads, quod in villa de Brainford est quaedam fraternitas incorporata infra tempus memoriae de magistro, fratribus et sororibus novem ordinum Angelorum juxta Brainford Bridge, absque hoc quod habetur aliqua talis fraternitas: which is reported in 22 Edw. 4. 34a. where the tenant at first pleaded, No such incorporation, and if it be not found, and naught because two bars, and then he pleaded the said plea, quod est quaedam fraternitas incorporata, &c.56 and yet there they were infeoffed by Bocking upon condition, and capable thereof as incident to a corporation. And therewith agreeth the Bishop of Exeter’s case in the book of Entries, 455. 2 Hen. 7. 17b. the Corporation of Godmanchester 34 Hen. 6 27a, 27b. in the case of the Hospital of Wycombe. v. 26 Hen. 8 1. In 9 E. 4. 20a. The Master of the Hospital of Burton S. Lazar prescribed, quod ipse et omnes praedecessores sui magistri hospitalis praedict’ a toto tempore, &c. nominati et cogniti fuerunt, &c. tam per nomen Magistri hospitalis Sancti Lazari de Burton, de ordine Sancti Lazari de Jerusalem in Angliâ, quam per nomen Magistri de Burton Sancti Lazari de Jerusalem in Angliâ:57 By which it appeareth that this word incorporo, or any derivation thereof is not in Law requisite to create an incorporation, but other equivalent words are sufficient, as nominati & cogniti:58 and therewith agreeth 44 Ass. p. 9. in The Prior of Plimpton’s case, and 4 Edw. 4. 7b. in the case of the Abbot of Glastenbury, and in none of these Books or Records was any mention made of these words, fundo, erigo, &c.59 or any other like words; for as it hath been said, they are onely declaratory words, and the effect of them may be done by the owner of the land without any grant. And it was well observed, that in old time the Inhabitants or Burgesses of a Town or Borough were incorporated when the King granted to them to have Gildam Mercatoriam60 in the Register 219 b. where the Writ doth recite, quod cum inter caeteras libertates civibus civitatis Winton’ per cartas progenitorum nostrorum quondam Regûm Angliae quas per cartam nostram confirmavimus, concessum sit eisdem, quod nullus eorum qui fuerunt infra gildam mercatoriam placitet extra murum, &c.61 where guilda signifies contubernium seu fraternitas incorporata;62 And upon that the place of their meetings and assemblies was called the Guild-hall. And I have seen |[30 b] the Charter made by King H. 1. Textoribus Lond’,63 by which he granteth to them that they shall have Gildam Mercatoriam,64 and a confirmation of it made by King H. 2. by which Charters they were incorporated. And where the opinion of Fineux in 13 H. 8. 3. b. and of Prisot in 39 H. 6. 13. b. was cited at the barre, that a corporation aggregate of many cannot be a body only without a Head; the same was utterly denied: For at first most part of the Corporations were a body without any head by force of these words Gilda Mercatoria. And that a Corporation aggregate of many may be without a head, see18Edw.2.Annuity 48. 5 Edw. 3. 11. b. 22 Ass. 67. 29 Ass. 17. 2 Hen. 6. 9. 18 Hen. 6. 16ab. 19 Hen. 6. 80. 21 Edw. 4. 55b. 56ab. 7 Edw. 4. 14ab. 2 Maria Dyer 100. And it appeareth by Record that Paulinus the first Archbishop of York, after he had baptised the inhabitants of Nottingham-shire in the River of Trent, founded a Collegiate Church in Southwell of Prebendaries, consecrated to the Virgin Mary, which continueth a body without a head even to this day. See for this word Guild or Fraternity in the book of Entries, 68. 37 Edw. 3. cap. 5. 15 R. 2. c. 5. the Statute of 1 Edw. 6. of Chantries. In which three things were observed, 1. how prudens antiquitas65 did always comprehend much matter in a narrow room: 2. that to the creation of an Incorporation the Law had not restrained itself to any prescript and incompatible words: 3. that when a Corporation is duly created, all other incidents are tacite66 annexed to it. And for direct Authority in this point in 22 E. 4. Grants 30. it is holden by Brian chief Justice and Choke, That a Corporation is sufficient without words, to implead or be impleaded, &c. and therefore divers clauses subsequent in the Charters are not of necessity but onely declaratory, and might well have been left out; as 1. by the same to have authority, ability, and capacity to purchase &c. but no clause is added that they may alien, &c. and it needeth not, for it is incident: 2. To sue and be sued, implead and be impleaded, 3. To have a Seal, &c. that is also declaratory, for when they are incorporated they may make or use what seal they will: 4. To restrain them to alien or demise but in certain form; that is an Ordinance testifying the Kings desire, but it is but a precept which doth not bind in Law: 5. The survivors shall be the Corporation, that is a good clause to oust all doubts and questions which might arise, the number being certain: 6. If the Revenues encrease, the same shall be employed to encrease the number of poor, &c. that is but explanatory as appeareth by the Case of Thetford School in the 8 part of my Reports, f. 131 ab.: 7. To be visited by the Governors, &c. the same is also explanatory; |[31 a] For in this case the poore which shall be resident in the house of the Charter-house shall not be incorporated, but certain persons in whom the possessions are vested, who shall not be resident there but onely to have the general, government and ordering of the poor therein; so that this Case is out of the Statutes of 2 Hen. 5 c.l. and 14 Eliz. cap 5. for if no visitor had been appointed by the Charter, the Governors should visit; and the books in 8 E. 3. 28. & 8 Ass. 29. do not gainsay it, where is holden, That if the Hospital be Lay, the Patron shall visit, and if Spiritual, the Bishop shall visit, so that every Hospital is visitable; it is true, but in the Case at the barre the poor of the Hospital are not incorporated, and so no legal hospital. 8. To make Ordinances; the same is requisite for the well ordering and governmenting of the poor, &c. but not to the essence of the incorporation. 9. The exemption from the Ordinary is but declaratory, for being a Lay-incorporation he neither can nor ought to visit. 10. The licence to purchase in Mortmain is necessary for the maintenance and support of the poor; for without Revenues they cannot live, and without a licence in Mortmain they cannot lawfully purchase Revenues, and yet it is not of the essence of the Corporation, for the Corporation is perfect without the same; so that by that what hath been said, it appeareth what things in genere67 are requisite to a complete body incorporate, and which are verba operativa68 in this case (which are necessary to be known in every case) the resolution of which it appeareth how necessary it is, that the Law and Experience joyn in hands together.
Answer to the 5th Objection Antea 23b.As to the fifth Objection, That no incorporation was presently made as the Letters Patents import, nor can be till the Master was named, and therefore the Charter is repugnant and void. To that it wasanswered, That this Objection doth extend to the overthrowing of a great number of Incorporations; for when a Corporation is created by Letters Patents, by the same Patent power is given to them to a choose, master Aldermen, or Bailiffs, or Governours, or the like, and yet they are presently incorporated by the same Letters Patents; and therewith expresly agreeth Plo. Com. 592. in the Cook’s case, 21 E. 4. 59. & 3 H. 7. Grant. 36. vouched at large before to the first and second Objections. Vide 32 E. 3. Aid. 39. 13 E. 4. 8. 16 E. 3. Grant 65. And it is true it is presently by the Letters Patents a Corporation in abstracto,69 but not in Concreto,70 till the naming of the Master. And a Case adjudged in the King’s Bench, Mich. 34 & 35 El. rott. 172. coram reg.71 was strongly urged: the governours of the possessions, revenues, and goods Hospitalis Ed. regis Angliae Sexti72 brought a bill of debt against Elias Germaine. The Defendant pleaded, That King Edward the sixth |[31 b] reciting the care of the city of London for the relief of poor people and infants, concessit Majori, Civib’ et Communitati Lond’Domummansionalem rocat’ Bridewell, &c.73 and there the King declareth his intent, that Bridewell shall be founded, erected, &c. an Hospital for the said poor, &c. idem Rex ut intentio sua melior’ capiat effectum,74 and to the end the Lands which shall be granted to them shall be better governed, per easd’ literas patentes voluit et ordinavit quod Hosp’ praed’ cum sic fundat’ erect’ et stabilit’ fuer’ Hospital’ E. 6. Reg’ Angl. Christi Bridewell, et S. Tho. Apost’ nominetur et appelletur imperpetuum, et quod major’ communitas et cives civitat’ praed’ forent Gubernatores, &c. et quod iidem Gubern’ de caetero essent et forent un’ corpus corporat’ per nomen Gubernat’ possess’ reventionum et bona’ hospital E. Reg’ Angl’ Christi Bridew. et St. Th’ Apost’, &c.75 and further pleaded, quod nullum hospital’ quale in eisd’ lit’ pat’ mentionat’ post confect’ praed’ literarum pat’ sic fundat’, erect’ et stabilit’ fuit, &c.76 Upon which the Plaintiff did demurre in law; and upon argument at the barre and bench it was adjudged for the plaintiff. For the said Ordinance, that the said House shall be an Hospital cum sic fundat’ &c. fuer’77 is intended onely, of the mechanical part of an actual Hospital, scil. of the fitting and finishing of the Hospital, house with poor, &c. And this Hospital in intention onely is sufficient to support the name of a Corporation, and the words de praesenti, scil. quod iid’ gubernat’ de caetero essent et forent un’ corpus corporat’ per nomen, &c.78 in law doth incorporate them presently, and shall not stay till there be an actual Hospital, or till the house be fitted or furnished, which is the mechanical part of the Hospital scil. for the habitation of the poor; which is the first thing to be observed by the said judgment, vide 32 E. 3. Aid. 39. King Edward the third newly founded a Priory and granted to the Monks that they might chuse a Prior, and before that the Prior was chosen W. made a lease to one A. for life, the remainder to the Prior and Convent; and in a Scire facias, against A. he pleaded, that W. was seised in Fee and leased to A. the remainder to the Prior and Convent who were newly founded by the King; and because there was not yet a Prior, the right was in the King until, and prayed aid of the King and the aid by award was granted, and a Writ of Procedend’79 came, and then A. the Defendant shewed, That after the aid granted there was a Prior made and ordained in whom the right remained, and prayed in aid of the Prior; he was ousted of the aid because he had aid before, which proveth that the remainder in such case is good. The second thing to be observed in the said Judgment in the said case of The Hospital of Bridewell, is, that one corporation may be made out of another corporation, sc. the major Citizens, and Commonalty of London, are created in their politick capacity Governours, &c. of the Hospital of Bridewell, 9 E. 3. 18. b. many corporations may be created one out of another, as the Dean and Chapter of Lincoln are a joynt corporation,Note. the Dean by himself is incorporated, and every of the Prebends is incorporate by himself, and in a case which is so manifest this shall suffice.
|[32 a] And as to the sixth Objection, That till an Hospital, be founded that no incorporation can be, for then there shall be idle andmathematicalgovernours.Answer to the 6th Objection Antea 23b. It was answered, That there was an Hospital in potestate,80 and an hospital in exec’;81 also an Hospital, in potentia82 and an Hospital, actu,83 An Hospital, re,84 and an Hospital, nomine.85 And as to the creation of an incorporation, an Hospital potestate, potentia, seu nomine86 sufficeth; as one may by Letters Patents be Governour of an Army before there be an army. Vide 17 H. 6. Protection 56: And the same agreeth with Philosophy and reason. Aristotle lib. 3. De generatione saith, quod caro gignit carnem;87 and that is true in potestate but not actu; and so any fowl so soon as it is hatcht is volatilis a volando, quia habet potest’ volandi quanquam act’ volandi non habet:88 So a child as soon as he is born is said rationalis,89 because he hath potestatem, although he hath not, and perhaps never shall have rationem actu.90 And it is also proved by old Records, and our books also, as in the Book of Enteries. Tit. Annuit 32. 33. Rex H. 5. quandam domum in quodam loco sive solo apud Shene (and abbutteth and boundeth the soil) quam vocari et nuncupari voluit Domum Jesu de Bethlem de Shene, duxit ordinand’ et fundand’ et domum illam quant’ in ipso fuit fundavit et erexit (which was but a nominative house, for none was then built) et idcirco locum et sol’ praed’ de Shene ut primar’ fundationem dedit, &c.91 by which it appeareth that a void place or soil in which an house is intended to be built, may by the King’s Charter be named a House, and this nominative house shall be sufficient (as there it was,) to support the name of the incorporation. Also it appeareth by Matthew Paris 64, and Polydore Virg’ Chronic’ Chronicor’, &c.92 The Hospital of St. Johns of Jerusalem in England was incorporated in 14 Hen. 1. of the Templers, by the name of Magister milit’ Templi et confratres sui in Anglia in an’93 24 H. 1. and yet neither the fabrick of the Temple, nor the house of the hospital, was founded and builded, sed regnante94H. 2. of the one Jordan Biset homo pius et bene nummatus a holy marshall monied; 95 and of the other Heraclius Patriarch of Jerusalem were Founders. Vide Camden’s Britannia 311, which proveth that a void place to support the name of a corporation may by the King’s Charter be named an Hospital or Temple, and it is not requisite, that there be always truth in the name of the Corporation either of an Hospital or of any other body politick. King Henry the eighth, in the second year of his reign according to the Will of King Henry the seventh granted to divers Bishops, Thomas Earl, of Arundel, &c. John Fineux, and Robert Read, Chief Justices, John Young, Master of the Rolls, &c. who were Executors of King Henry the seventh quandam peciam terrae vocat’ le Savoy96 in the parishes of Saint Clements, and St. Mary le Strand ad intentionem quod iidem quoddam hospital’, in et super praed’ peciam terrae vocat’ Savoy erigere, fundare et estabilire possint,97 4 H. 8. The King licenseth them quodd’ Hospit’ de uno magistro et 5 capellanis super praedict’ peciam terr’ vocat’ le Savoy fundare, & Hospitale cum sic fundation’ fuerit,98 shall be incorporated by the name Magister & Capallanorum |[32 b] Hospital’H. nuperregis Angliae 7. de Savoy,99 and yet in truth it was not an Hospital, in the time of Henry the seventh but in intention onely, and yet the King in his Charter doth call it the Hospital of King Henry the seventh. And the same was admitted to be a good name of incorporation by all those who argued the case betwixt Mariat et Pascall upon the incorporation of the said Hospital, Trin. 30 Eliz. in the Exchequer, where the Case was adjudged; or in the Exchequer chamber, where it depended by Writ of Error. And therefore in 44 E. 3. 16. b. Regist. 23. there the Corporation was Prior Hosp’ S. Johan’ Jerusal. in Anglia:100 and so 9 E. 4. 6. Hospitale S. Lazari de Jerusal’ in Angliâ, which sufficeth for, the name of the Corporation; although it be but a fiction, scil. that either S. John (which was S. John the Evangelist) or Jerusalem was situate in England. So Magistri milit’ Templi Jerusal’ in Anglia;101 and in the Register, Prior et frat’ Sancti Mariae de monte Carmeli in Anglia102 So I have seen a Record, That Catharine the first wife of King Henry the eighth had a licence to found a Chauntry by the name of the Chauntry de monte Calvarie extra Algate London.103 And it is great reason that an Hospital in expectancy or intendment, or nomination, shall be sufficient to support the name of an Incorporation, when the Corporation itself is onely in abstracto,104 and resteth onely in intendment and consideration of the Law; for a Corporation aggregate of many is invisible, immortal, & resteth only in intendment and consideration of the Law; and therefore in 39 H. 6. 13b. 14 a. Dean and Chapter cannot have predecessor nor successor. 21 E. 4. 27. & 30 E. 3. 15. 6. They may not commit treason, nor be outlawed, nor excommunicate, for they have no souls, neither can they appear in person, but by Attorney 33 H. 8. Br. Fealty. A Corporation aggregate of many cannot do fealty, for an invisible body cannot be in person, nor can swear, Plow. Com. 213, and The Lord Berkley’s Case 245, it is not subject to imbecilities, or death of the natural, body, and divers other cases. A thing which is not in esse but in apparant expectancy is regarded in Law, as a Bishop who is elect before he be consecrated, an infant in his mother’s belly before his birth, &c. 5 E. 2. Bre. 80. 8 E. 2. voucher 237. 38 E. 3. 30. 41 E. 3. 5. 11 E. 3. Quare Impedit 158. So for the name of a Corporation it is sufficient to name a place in England by the name of Jerusalem, mount Calvary, mount Carmel, Bethlehem, &c. a fortiori,105 the name of a spacious and goodly house well and actually buildeth by the name of an Hospital is sufficient; for the same importeth truth and certainty. By which it appeareth, that in the case at barre there was a lawful incorporation of the Governours, &c. created and instituted by the King’s Charter, and by consequence as well any person in England, as Sutton, might give and grant to them before any foundation laid, or to be laid by Sutton (as it was imagined he ought to have done before they were capable, &c.) but the same is clearly answered and confuted before; and in truth haec recitasse, est confutasse.106
|[33 a] As to the seventh Objection, it is to know that there are two manner of Foundations,Answer to the 7th objection Antea. 23b. one fundatio incipiens,107 the other fundatio perficiens,108 and therefore quatenus ad capacitatem, et habilitatem,109 the incorporation is metaphorically called the foundation, for that is the beginning, as a foundation quasi fundamentum capacitatis,110 preceding the whole. And therefore in 21 H. 6. 4a. a Writ was brought against John Arden, Abbot of S. John Baptist of Colchester; the Defendant pleaded, that before time of memory foundation was made of the same place per nomen Abbat. eccl’ monast’ de S. Joh’ de Colchester, &c.111 where Foundation is taken for Incorporation, 38 E. 3. 14. 38 E. 3. 28a. 20 H. 6. 27a. & 18 H. 6. 16a. in The Dean and Canons of Windsor’s Case, and divers other books agree with the same, Sed quatenus ad dotationem,112 the first giving of the Revenues is called the Foundation, and who giveth the same is the Founder in law, for proprie, fundatio est quasi fundi datio,113 and the first gift is fundamentum dotationis seu collationis, et appellatione fundi aedificium et ager continentur;114 and that is proved by the Statute of West. 2. c. 41. Si Abbates, Priores, Custodes Hospital’ et aliarum domorum religiosarum fundatarum ab ipso Rege vel a progenitoribus suis alienaver’ vel de caetero tenem’ domibus ipsis ab ipso vel a progenitoribus suis collata, &c.115 In which was observed, that in respect of tenements collated or given by the King, the house was said to be founded by the King, but more fully in the clause following in the said Act, Si autem domus illa a comite, barone, vel ab aliis fundata fuerit, habeat ille a quo, &c. tenement’ sic alienat’ collat’ fuer’ br’ e ad recuperand’, &c.116 where the collation or gift of the Tenements is called the Foundation. And where the Founder bringeth the said Writ de contra formam collationis,117 the Writ of Praec’ quod reddat mesuag’ quod eid’ domui collat’ fuer’,118vide 9 H. 7. 26. F. N. B. 211. Old N. B. 142. 38 Ass. p. 22. He who giveth the first lands is the Founder, quia fundare in that sense is nothing else but fundum dare,119 and therewith agreeth 14 E. 3. Corrodie 5. In a Writ of Prohibition, where a common person is Founder of an Hospital, the writ as appeareth in the Regis 41a. saith, Hospitale Sancti Egidii leprosorum de Burton per antecessor’ R. filii I. ad sustentation’ leprosorum et aliorum pauper’ et infirmor’ ibid’ totum in temporal’ et nihil in spiritual’ fundat’ existit,120 and the like Writ where the King is Founder, cum hospitale nostr’ sanctor’ Innocentium juxta Lincoln’ de fundatione progenitor’ nostror’ Regûm Angliae, &c. de terris et possessionibus pro sustentatione pauper’ et infirmor’ in eod’ hospital’ degentium dotatum existat:121 121 In which it was observed, that where the first Writ saith fundat’ this Writ calleth it dotat,122 39 E. 3. 17. The Abbot of Lyra brought a Scire facias against the Dean of Woborn, where the Dean said he held of the Patronage (that is of the King’s Foundation) and prayed aid of him, and had aid; and there came a Writ of Procedendo, and it was challenged because the Writ said of the Patronage |[33 b] and not of the Collation, and it was taken all one, 33 E. 3. Aid. 103. The Dean of Stafford’s case, the Deanry is said to be of the Foundation, and a little after the King’s collation 8 Edw. 3. 56. in Sirach’s Case, by the foundation the land is amortised, Vide 4 Edw. 3. Ass. 177. 21 Edw. 3. 60a. 24 Edw. 3. 33. 34a. 44 Edw. 3. 23. 44 Edw. 3. 11.b. 2 Edw. 3. 28. The Earl of Richmond’s case, 6 Hen. 4, 5. 7 Edw. 4. 12. And therefore it was resolved, That if the King had incorporated the poor of the said Hospitall, Sutton need not have made any instrument comprehending any Foundation or erection, &c. But his gift of the land being the first act had made him Founder, and the very first donation is all the Foundation which is requisite in Law; and to the erection of an Hospital, &c. there is not in law any thing requisite, but incorporation and donation. And in the Report at large I have omitted all the Arguments at length on both sides upon one common ground, where an act to one intent shall enure to divers intents distinct in time; some holding, That the bargain and sale doth amount not only to a Dotation, but also to a Foundation, and others totis viribus e contra;123 for it appeareth to you now without any question, That the first Dotation is the Foundation. And yet in that also a difference is necessary to be well understood; scil. when the King expresses the words, designeth the place, appointeth the number, and giveth them a name by his Charter; so that the same is a complete Corporation; there the Founder or Donor hath nothing to do but to make the Dotation without any instrument comprehending these words, fundo, erigo, stabilio, &c.124 or other the like words. For the common person who is the Founder in such case hath nothing to do in the power of incorporation; but when the King by his Charter doth reserve as well the nomination of the persons, as the name of the incorporation to the common person who shall be the Founder, there he ought to name the parties, and to declare by what name they shall be incorporated, and there many times, although it be superfluous, he useth these words, fundo, erigo, &c.125 or the like. And when the common person hath done it and declared it in writing according to his authority, then they are incorporated by the King’s Letters Patents, and not by the common person, for he is but an instrument, and the King maketh the Incorporation in such case in the same manner as if all had been comprehended in the Letters Patents themselves: as it is true, that none but the King alone can create or make a Corporation, as it is holden in 49 Edw. 3. 4. 4a. 49 Ass. 8. but, qui per alium facit, per se ipsum facere videtur.126 See for this difference 38 Edw. 3. 14b. 22 Edw. 4. Grant 30. 2 Hen. 7. 13a, 13b. |[34 a] Grant 36. 20 Hen. 7. 7. And as to the eighth Objection against the nomination of the Master,Answer to the 8th Objection. Ante 24a. it was resolved that it was good; For Sutton hath a liberty at his will and pleasure to nominate him; and when he is named, he is Master by force of the Letters Patents, and is now as if he had been named in the Letters Patents themselves at the begining: and the other part of the Objection is answered before.
Answer to the 9th Objection. Antea 24a.And as to the objections against the bargain and sale, it was first resolved without question, That money given by the Governours or any of them as a private person, is a good consideration to grant the land to them in their politick capacity. But the Indenture importeth that they paid it as Governours and by such name they are acquitted by the Indenture. Also there is twelve pence Rent reserved to Sutton and his heirs, which is a good consideration. 2. Although in the Habendum127 a trust is declared, the same without question cannot make the bargain and sale void, but the conveyance being by bargain and sale, it was wisely done to declare the confidence and trust. And as to the third, the same is clearly answered and resolved as before.
Answer to the 10th Objection, Antea 24a.And as to the last Objection, scil. That in pleading, those Governours cannot plead, that they were seised in jure hospitalis,128 because there was not any Hospital incorporate, nor in esse,129 at the time of the incorporation. To that it was answered, That the pleading shall be that they were seised in their demesne as of Fee in jure incorporationis suae,130 and so it was pleaded in the Cooks case of London in Plow. Com. Vide Fulmerstone’s case also, in Plow. Com. 102. vide 7 Edw. 3. the case of custos altaris,131 he counted that he was seised, &c. in jure altaris.132 And as to the precedents which were shewed, it was answered, That there are many clauses inserted in Charters as well of the King as others, ex consuetudine Clericorum,133 which are not de necessitate legis,134 but some declaratory and explanatory, and some prolix and nugatory, but lex multa proficientia, et preficientia paucis comprehendit.135 And all the Judges which argued this case (except the two before-said) did conclude against the Plaintiff, and those two also mutatâ opinione136 did assent to the judgment: so that by the assent of all the said Judges nullo contradicente137 judgment was given against the plaintiff: And the Lord Ellesmere, Lord Chancellour of England, heard all the arguments at the barre and bench did agree in opinion with the Judges: So that this great work of Charity hath tasted of such charity which ought to be in Judges, which is declared in the statute |[34 b] of West. 1. cap. ult. Summa charitas est facere Justitiam omnibus personis omni tempore quando necesse fuerit.138 And there is a good rule for these Governours, and all other Corporations which is expressed in the Statute de Templariis anno 17 Edw. 2. in these words, Ita semper quod pia et celeberrima voluntas donatorum in omnibus teneatur et expleatur et perpetuo sanctissime perseveret.139 And Sir Thomas Fleming, Knight, after the first day this case was argued fell sick, of which Sickness he afterwards died, so as he never argued this case. The said Sir Thomas Fleming was first a Sarjeant at Law, and afterwards Solicitour General to Queen Elizabeth, and to the King that now is for the space of twelve years, and then was preferred to be chief Baron of the Exchequer after the death of Sir William Periam, and then was advanced to be chief Justice of England after the death of Sir John Popham; all which places he discharged with great judgment, integrity and discretion, and he deserved the good opinion of all that knew him, because he was of a sociable and a peaceable nature and disposition.
The Reason of reporting this case at large.Which Case I have reported at length for three causes. 1. For the Confirmation of Incorporations founded for works of Piety & Charity in time past. 2. For the better instruction how they may be after so and established that no exception may be taken to them. 3. For the resolving of certain opinions and questions which were moved at the barre, and which might have disturbed the peace of the Law. In the argument of this case many other authorities were cited, sc. 2 Edw. 3. 47. 3 Edw. 3. 83. 5 Edw. 3. 144. 7 Edw. 3. 57. 8 Edw. 3. 67. 8 Edw. 3. 208. 18 Edw. 3. 1. 20 Edw. 3. Nonabilite 9. 20 Edw. 3. Corone 225. 21 Edw. 3. 35. 32 Edw. 3. Aid 55. 40 Edw. 3. 28. 44 Ass. 2. 13 R. 2. Breve 643. 11 Hen. 4. 12. 19. 14 Hen. 4. 8. 3 Hen. 6. 28. 7 Hen. 6. 13. 9 Hen. 6. 13, 14. 16. 20 Hen. 6. 7. 21 Hen. 6. 2. 12 Edw. 4. 17. 15 Edw. 4. 1. 21 Edw. 4. 32. 55. 57. Lib. Ent. 112. 6 Hen. 7. 14. 10 Hen. 7. 16. 11 Hen. 7. 9. 11 Hen. 7. 27. 13 Hen. 8. 13. 14 Hen. 8. 29. 32 Hen. 8. br. Corp. 78. 1 Mar. Dye. 98. 7 El. Dy, 81. the case of The College of Grainstock, 10 El. Dyer the case of The College of Landebrevis, Pl. Com. Grendon’s case 494. Hil. 16 El. rot. 495. Sir Fr. Fleming’s case in the Com. Pl.
The names of the governors nominated by Sutton and expressed in the said charter, were, The most Reverend Father in God, George, Archbishop of Canterbury, Thomas Lord Ellesmere, Lord Chancellor of England, Robert Earl of Salisbury, John Bishop of London, Lancelot Bishop of Ely, Sir Edward Coke then Chief Justice of the Common Pleas and now Chief Justice of England, Sir Thomas |[35 a] Foster, one of the Justices of the Court of Common Pleas, Sir Henry Hobart then the King’s Attorney-General, and now Chief Justice of the Court of Common Pleas, John Overal, Dean of the Church of St. Paul in London, George Mountain, Dean of Westminster, Henry Thursby one of the Masters of the Chancery, Jeffery Nightingale, Richard Sutton, John Law, Thomas Brown, and the Master of the said hospital for the time being; and after the death of the said Sir Thomas Foster, one of the Justices of the Court of Common Pleas, (who was a grave and Reverend Judge of great judgment, constancy and integrity) Sir James Altham, Knight, one of the Barons of the Exchequer, was according to the said Charter unanimi consensu140 in his place. And the said Master of the Hospital, which Sutton had nominated durante bene placito,141 our soveraign Lord the King that now after the death of Sutton, did by his Letters Patents, nominate Master for his life.
[* ]The pleadings of the case are filed at Mich. 10 Jacobi Rot. 574.
[1. ][Ed.: forasmuch as they.]
[2. ][Ed.: broke and entered.]
[3. ][Ed.: in someone else’s soil.]
[4. ][Ed.: relative, and exist at the same time.]
[5. ][Ed.: by prescribed words and in certain terms.]
[6. ][Ed.: I have given, I warrant,]
[7. ][Ed.: which are legal words and incompatible, etc.]
[8. ][Ed.: I found, erect, etc.]
[9. ][Ed.: Clause of the grant: “to have”.]
[10. ][Ed.: in right of his hospital.]
[11. ][Ed.: and because right is the judge of itself and of what is crooked.]
[12. ][Ed.: the words of a royal charter in equity bear their own interpretation;]
[13. ][Ed.: the innermost parts (lit. bowels) of the cause, and an exposition which is born in the innermost parts of the cause is the most apt and the strongest in law.]
[14. ][Ed.: in future, and nothing is in the present.]
[15. ][Ed.: concerning the future.]
[16. ][Ed.: in Chief, that is, a tenancy held directly from the crown.]
[17. ][Ed.: The wise man begins with the end, and what is first in intention is last in execution.]
[18. ][Ed.: by words of the present tense.]
[19. ][Ed.: by force of the word, to found is nothing other than to lay or place a foundation, etc.]
[20. ][Ed.: 1 Kings, ch. 6, v. 37: In the first [fourth] year was the foundation of the house laid, and in the eleventh year was all the work on the house finished.]
[21. ][Ed.: 1 Kings, ch. 16, v. 34: In those days Hiel of Bethel laid the foundation of Jericho in Abiram his firstborn, and in Segub his youngest son he set up the gates.]
[22. ][Ed.: He put up walls for us, and erected our houses (quoting Ecclesiasticus, chap. 49, v. 17.)]
[23. ][Ed.: I will establish his throne.]
[24. ][Ed.: works of labour, and of the labour of builders.]
[25. ][Ed.: so good a work.]
[26. ][Ed.: I found, erect, and establish.]
[27. ][Ed.: whence it follows,]
[28. ][Ed.: therefore.]
[29. ][Ed.: in the sixth year of his reign,]
[30. ][Ed.: to a certain chaplain celebrating divine service at the altar of the Blessed Mary in the church of St. Magnus, London, every day, for the wholesome estate of the aforesaid Robert and Joan his wife, etc., to have and to hold for ever unto the same chaplain and his successors, being chaplains of the aforesaid chantry and celebrating divine service in the aforesaid church at the aforesaid altar for the wholesome estate, etc., in accordance with the ordinance to be made by the aforesaid Robert in that behalf, etc.]
[31. ][Ed.: to a certain chaplain,]
[32. ][Ed.: to a certain abbot,]
[33. ][Ed.: in being;]
[34. ][Ed.: in accordance with the ordinance to be made by the aforesaid Robert Ramsey,]
[35. ][Ed.: to make and erect a chantry, etc.]
[36. ][Ed.: in accordance with ordinance to be made by the aforesaid Robert Ramsey;]
[37. ][Ed.: in the future.]
[38. ][Ed.: to have unto him and his successors.]
[39. ][Ed.: at one and the same time.]
[40. ][Ed.: to found, erect, make;]
[41. ][Ed.: Note.]
[42. ][Ed.: to found, erect, and establish,]
[43. ][Ed.: in accordance with the ordinance to be made by Robert Ramsey,]
[44. ][Ed.: in the text above,]
[45. ][Ed.: the record being inspected,]
[46. ][Ed.: words are to be taken with the effect,]
[47. ][Ed.: in the present.]
[48. ][Ed.: Writ to enforce a judgment or other matter of record.]
[49. ][Ed.: A prebendal corporation; usually a charitably or ecclesiastically endowed corporation.]
[50. ][Ed.: operative words.]
[51. ][Ed.: a university or college (i.e. corporation).]
[52. ][Ed.: a touchstone,]
[53. ][Ed.: a certain hospital of St. Mary of Bristol for a master and convent for all time, etc. were incorporated by the name of the Master and Convent of the Hospital of St. Mary of Bristol.]
[54. ][Ed.: The warden and vicars of the college of vicars in the choir of Hereford are, and since time immemorial were, incorporated by the name of the Warden and Vicars of the College of Vicars in the Choir of Hereford:]
[55. ][Ed.: The master, brethren and sisters of the fraternity or guild of the nine orders of holy angels next Brainford....]
[56. ][Ed.: that in the vill of Brainford there is a certain fraternity, incorporated within time of memory, of a master, brethren and sisters of the nine orders of angels next Brainford Bridge, without this that there is any such fraternity: (as the plaintiffs allege). . . . that there is a certain fraternity incorporated, etc.]
[57. ][Ed.: that he and all his predecessors being masters of the aforesaid hospital from time immemorial etc. were named and known etc. both by the name of master of the hospital of St Lazarus of Burton of the order of St Lazarus of Jerusalem in England and also by the name of master of Burton St Lazars of Jerusalem in England:]
[58. ][Ed.: named and known:]
[59. ][Ed.: I found, erect, etc.]
[60. ][Ed.: a guild merchant.]
[61. ][Ed.: whereas among other liberties [granted] to the citizens of the city of Winchester by the charters of our forebears, formerly kings of England, which by our charter we have confirmed, it is granted to them that none of them who were in the guild merchant should plead outside the walls, etc.]
[62. ][Ed.: an incorporated company or fraternity.]
[63. ][Ed.: to the dyers of London.]
[64. ][Ed.: a guild merchant.]
[65. ][Ed.: prudent antiquity.]
[66. ][Ed.: tacitly.]
[67. ][Ed.: in kind.]
[68. ][Ed.: operative words.]
[69. ][Ed.: in the abstract,]
[70. ][Ed.: in the concrete,]
[71. ][Ed.: before the king (i.e. in the King’s Bench).]
[72. ][Ed.: of the hospital of King Edward VI of England.]
[73. ][Ed.: granted to the mayor, citizens and commonalty of London the mansion house calledBridewell, etc.].
[74. ][Ed.: the same king, so that his intention might take better effect.]
[75. ][Ed.: by the same letters patent willed and ordained that when the aforesaid hospital was so founded, erected and established, it should be named and called for ever King Edward VI of England’s Hospital of Christ of Bridewell and St. Thomas the Apostle, and that the mayor, commonalty and citizens of the aforesaid city should be governors, etc., and that the same governors should henceforth be a body corporate by the name of the Governors of the Possessions, Revenues and Goods of King Edward VI of England’s Hospital of Christ, Bridewell, and of St. Thomas the Apostle, etc.]
[76. ][Ed.: (and further pleaded) that no such hospital as is mentioned in the same letters patent was so founded, erected and established after the making of the aforesaid letters patent, etc.]
[77. ][Ed.: when it was so founded, etc.]
[78. ][Ed.: of the present (tense), namely, that the same governors henceforth be a body corporate by the name etc.]
[79. ][Ed.: Writ requiring an inferior court to render an unspecified judgement.]
[80. ][Ed.: in authority,]
[81. ][Ed.: in execution.]
[82. ][Ed.: in possibility.]
[83. ][Ed.: by impulse,]
[84. ][Ed.: in reality,]
[85. ][Ed.: in name.]
[86. ][Ed.: in authority, in possibility, or in name.]
[87. ][Ed.: that flesh begets flesh;]
[88. ][Ed.: volatilis (fowl), from the word volando (flying), because it has the potential ability to fly even though it has not yet the act of flight:]
[89. ][Ed.: rational,]
[90. ][Ed.: reason by impulse.]
[91. ][Ed.: King Henry V caused to be ordained and founded a certain house in a certain place or piece of soil at Shene which he wished to be called God’s House of Bethlehem of Shene, and founded and erected that house as far as he could...andfor that purpose gave the place and soil of Shene aforesaid as the first foundation, etc.]
[92. ][Ed.: Chronicle of Chronicles.]
[93. ][Ed.: Master of the Knights of the Temple and his Brethren in England, in the year.]
[94. ][Ed.: but in the reign of.]
[95. ][Ed.: Jordan Biset, a pious and well moneyed man.]
[96. ][Ed.: a certain piece of land called the Savoy.]
[97. ][Ed.: to the intent that they might erect, found and establish a certain hospital in and upon the aforesaid piece of land called the Savoy,]
[98. ][Ed.: to found a certain hospital of one master and five chaplains upon the aforesaid piece of land called the Savoy, and when the hospital was so founded,]
[99. ][Ed.: the Master and Chaplains of the Hospital of the late King Henry VII of England of Savoy.]
[100. ][Ed.: prior of the Hospital of St. John of Jerusalem in England:]
[101. ][Ed.: Master of the Knights of the Temple of Jerusalem in England.]
[102. ][Ed.: Prior and brethren of St. Mary of Mount Carmel in England.]
[103. ][Ed.: of Mount Calvary without Aldgate, London.]
[104. ][Ed.: in the abstract,]
[105. ][Ed.: so much the more so, or it follows that,]
[106. ][Ed.: to recite this is to confute it.]
[107. ][Ed.: beginning foundation,]
[108. ][Ed.: perfecting foundation,]
[109. ][Ed.: as to the capacity and ability,]
[110. ][Ed.: as it were a foundation of capacity.]
[111. ][Ed.: by the name of the abbot of the monastery of St John of Colchester, etc.]
[112. ][Ed.: but with respect to the endowment,]
[113. ][Ed.: properly, a foundation is as it were the giving of a fundus, (piece of ground).]
[114. ][Ed.: the foundation of the endowment or collation, and by the name of fundus is contained the building and the field;]
[115. ][Ed.: If abbots, priors, keepers of hospitals and of other religious houses founded by the king himself or his forebears should henceforth alienate the tenements collated to them by himself or his forebears, etc.]
[116. ][Ed.: but if the house was founded by an earl, baron, or other persons, the person by whom, etc. the tenement so alienated was collated shall have a writ to recover it, etc.]
[117. ][Ed.: A writ to recover a gift given to a monastery for charitable purposes and used otherwise.]
[118. ][Ed.: command (the defendant) that he render (to the demandant) the messuage which was collated to the same house.]
[119. ][Ed.: because to found [in that sense giveth nothing else but] a fundus (piece of ground).]
[120. ][Ed.: The hospital of St Giles of Burton Lazars was founded by the ancestors of R., son of J., for the support of lepers and other poor and sick people there, as wholly temporal and in no way spiritual.]
[121. ][Ed.: whereas our hospital of the Holy Innocents next Lincoln, of the foundation of our forebears, being kings of England, etc., was endowed for the support of the poor and sick staying in the same hospital.]
[122. ][Ed.: founded . . . endowed]
[123. ][Ed.: with all their might to the contrary.]
[124. ][Ed.: I found, erect, establish, etc.]
[125. ][Ed.: I found, erect, etc.]
[126. ][Ed.: who does something through another is deemed to do it himself.]
[127. ][Ed.: Literally “to have,” the clause in the Letters Patent assigning a right to hold the powers for some purpose.]
[128. ][Ed.: in right of the hospital,]
[129. ][Ed.: in being,]
[130. ][Ed.: in right of their corporation,]
[131. ][Ed.: keeper of the altar,]
[132. ][Ed.: in right of the altar.]
[133. ][Ed.: by the custom of clerks,]
[134. ][Ed.: legally necessary,]
[135. ][Ed.: the law comprehends many profitable and authoritative things in few words.]
[136. ][Ed.: changing their opinion.]
[137. ][Ed.: no one disagreeing.]
[138. ][Ed.: It is the utmost charity to do justice to all persons at all times when it is needed.]
[139. ][Ed.: provided always that the pious and most esteemed wish of the donors should in every respect be kept and carried out and preserved as sacred for ever.]
[140. ][Ed.: with unanimous consent.]
[141. ][Ed.: during good pleasure,]