THAT the gilda mercatoria in England, was fomething diftinct from the corporate body vefted with the local government of the place, receives confirmation from the actual state of the royal boroughs in Scotland.-In most of thefe, there are feveral incorporated companies of trades, and a gildry, which is alfo an incorporated company, but diftinct from the others; and the magiftracy of the town is compofed of members partly taken from the gildry and partly from the trades.

THE objects of charters, as they respect corporations, are various; some, properly called charters of incorporation, give them their original conftitution: fome, without interfering with their conftitution, confer on them particular privileges, of which kind the city of London can fhew many examples; others totally alter, or in a great measure new model the conftitution, or make particular alterations in it; and, fometimes, the effect of a charter is little more than to confirm the conftitution or the ancient privileges.

As the intention of a grant of incorporation is to confer fome benefit on the grantees, which, however, may be counterbalanced by fome conditions with which it is accompanied, it has become an established rule, that the grant must be accepted by the voluntary confent of a majority of those whom it is intended to incorporate; otherwife the grant will be void (a). And it must be accepted as it is offered; they are not at liberty to act under part of its provifions and reject the reft: but if a new charter be given to a corporation already in being, and acting either under a former charter or prefcriptive ufage, fuch corporation already exifting is not obliged to accept the new charter in the whole, and to receive either all or no part

(a) i Rol. Rep. 226. Brownl. and Goulds, 2 pt. 100.

V

of it: It may act partly under that and partly under its old charter or prescription (a).

ON a conteft for the office of high fteward of the univerfity of Cambridge, between the Earls of Sandwich and Hardwicke, the latter, who conceived himself to have been legally elected, applied to the court of King's Bench for a writ of mandamus, to have the effect of his election. On the rule to fhew cause, it was urged (b) in oppofition to the application for the writ, that Queen Elizabeth, in the 12th year of her reign, had granted to the university a new body of statutes, under which they were then governed, and in which no particular mode was prescribed for the election to the office of high fteward; but which directed that all officers, not therein particularly mentioned, fhould be chosen in the fame manner in which the vice-chancellor was to be chofen; but that the election in question was not had as the election of a vice-chancellor; that the univerfity had accepted thefe ftatutes, and were therefore bound by them, and that confequently the election was void.-In support of the application for the writ, it was contended, that the election was according to a ufage which had prevailed above 240 years; that this new charter did not affect the old prescriptive rights, and that the usage fhewed only a partial acceptance of the statutes of Queen Elizabeth.

It was held by the court (c), that the Crown could not take away from the university any rights that had formerly fubfifted in them under old charters or prescriptive usage ; that the validity of these new charters muft depend on the acceptance of the univerfity; that when the Crown gave these statutes, the university of Cambridge was of ancient establishment, and had many prescriptive rights, as well

(a) 3 Bur. 1647, 1656, 1661. (c) Id. 1656, 1661.

(b) 3 Bur, 1650.

as

as former charters of very old date, and there was no intention to alter or overturn their ancient couftitution; that these statutes undoubtedly meant to leave the ancient conftitution of the univerfity in a great measure as it was, without repealing or abrogating their old established cuftoms, rights, and privileges; and that the university could not mean to accept them on any other terms; that the ftatutes of Queen Elizabeth, therefore, could never be set up to invalidate establishments which had fubfifted long before she was born; that the office of high fteward came under this description, and that it was not intended, by these statutes, to alter the mode of election to it, unless the university chose to do fo; that it was the concurrence and acceptance of the university that gave force to the charter of the Crown; that they might accept the body of ftatutes feparately and diftinctly, and were not bound to accept all or leave all; and that in the present case it appeared there was in fact a partial acceptance.

BUT though the King cannot take away liberties before granted by him or his predeceffors, yet if a corporation ac◄ cept a charter which abridges or alters any of their liberties, this is good; and when a corporation takes a new charter concerning their liberties, they may make use of it as a grant, or as a confirmation.

HENRY the fourth, by charter, granted, among other things, to the corporation of the city of Norwich, that they might choose two fheriffs; Charles the second confirmed this charter, and granted befides, that, in the election of fheriffs, this form fhould be obferved; that the mayor, fheriffs, and aldermen, between the 24th of June and the first of September, fhould choose one fit person to execute the office of sheriff for the year enfuing, and that the commonalty fhould choose another: the corporation having

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having acted under this charter for a confiderable time, that circumftance was held to be evidence of acceptance, and the alteration in the mode of election valid (a).

(a) 4 Mod. 269. 1 Salk. 167. 1 Ld. Raym. 29, 32; cafe of the King v. Larwood.

CHAP,

CHAP. II.

OF CORPORATIONS CONSIDERED IN THEIR RELATION TO THE PUBLIC.

WHEN a corporation is duly created, many powers, capacities, and incapacities, are tacitly annexed to it without any exprefs provifion (a); and of thefe, five are faid to be neceffarily and infeparably incident to every corporation. 1. To have perpetual fucceffion, and therefore all aggregate corporations have a power neceffarily implied of electing members in the room of fuch as are removed by death or otherwife (b). 2. To fue and be fued, implead and be impleaded, grant and receive by its corporate name, and do all other acts as natural perfons may. 3. To purchase lands, and hold them for the benefit of themselves and their fucceffors. 4. To have a common seal, and 5. To make bye-laws, or private ftatutes for the better government of the corporation.-The two last, however, it is admitted, are very unneceffary to a corporation fole, though they may be practised (c); and the last is not fo infeparably incident to a corporation aggregate, that it cannot fubfift without it; for there are fome aggregate corporations to which rules and ordinances may be prescribed, and which they are bound to obey (d), as will be more fully fhewn in another place: neither are these all the incidents, which without any express provifion are neceffarily annexed by legal implication to an aggregate cor