Imatges de pàgina
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scription of those which are faid to exift by force of the common law. It is certain, that during the latter part of the Saxon period, and for some time after the conquest, the great nobles claimed and exercised prerogatives within their own demefnes, fimilar to those which the King exercised within those of the crown (a); and of these it is certain, that the power of conferring corporate privileges on their towns, was one. There are many inftances of towns within the demefnes of the feudal barons, which had enjoyed fuch privileges by charters from their immediate lords, and, having come to the crown by escheat, have had these privileges confirmed, and others added to them by fubfequent charters from the King (b). The whole hiftory of the incorporation of towns, in every country in Europe, proves, that the King did not exclufively poffefs this prerogative. "The inhabitants were originally the tenants, or dependants, either of the King or fome particular nobleman, on whose demefne they refided, and the fuperior," whether King or Lord, "exacted from them, not only a rent for the lands which they possessed, but various tolls and duties for the goods which they exchanged with their neighbours. These exactions, which had been at first precarious, were gradually ascertained and fixed, either by long cuftom, or by exprefs regulations. But as, on the one hand, many artifices had been frequently practised, in order to elude the payment of thofe duties, and as, on the other hand, the perfons employed in lexying them were often guilty of oppreffion; the inhabitants of particular towns, on their increafing in wealth, were induced to make a bargain with the fuperior, by which

(a) Vid. Millar 149, and Stewart's Differtation concerning the Antiquity of the English Conftitution, part 3. f. 3.

(b) Vid. Lutw. 1336, the case of Tewksbury in Gloucestershire,

they

they undertook to pay a certain yearly rent, in the room of all his occafional demands; and these pecuniary compofitions, being found expedient for both parties, were gradually extended to a longer period, and at last rendered perpetual.

"AN agreement of this kind feems to have fuggefted the firft idea of a borough confidered as a corporation. Some of the principal inhabitants of a town undertook to pay the fuperior's yearly rent; in confideration of which, they were permitted to levy the old duties, and became refponsible for the funds committed to their care. As managers of the community, therefore, they were bound to fulfil its obligations to the fuperior; and by a natural extenfion of the fame principle, it came to be understood, that they might be profecuted for all its debts; as, on the other hand, they obtained, of course, a right of prosecuting all its debtors. The fociety was thus viewed in the light of a body politic, or fictitious perfon, capable of legal deeds, and executing every fort of tranfaction by means of trustees or guardians.

"THIS alteration in the state of towns, was accompanied with many other improvements. They were now generally in a condition to difpenfe with the protection of their fuperior; and took upon themselves the burden of keeping a guard, to defend them against a foreign enemy, and to fecure their internal tranquility. On this account, befide the appointment of their own administrators, they obtained the privilege of electing magiftrates for diftributing justice among them," and were thus vefted with the local government of the

place (a).

(a) Millar 379, 380. Vid. Firma Burgi, b. et feq. 15, 16, 17, and 4. 2, f. 8, a grant of privileges by a baron, and c, 7, f. 16.

THE

THE diftinction which ftill fubfifts in Scotland, between royal boroughs, and boroughs of barony, is also a proof of this prerogative having once belonged to the

barons.

THAT the King, however, was, very foon after the conqueft, understood to possess the exclufive prerogative of erecting guilds, or incorporate companies, appears from this circumstance, that many fuch companies were fuppreffed, about that period, as adulterine guilds; that is, guilds fet up without the King's warrant or authority (a).

IN the time of Bracton, who lived in the reigns of Henry the third and Edward the firft, the King's prerogative, as to the exclufive right of granting liberties and fianchises in general, feems to have been fully established (b); and the abfolute neceffity of his affent to the erection of any corporation was held, in the reign of Edward the third, to have been long fettled as clear law (c).

AT the time of the reformation, in confequence of the ftatute of Edward the fixth (d), which gave the colleges therein described to the King, it generally became a queftion, whether the house claimed was a lawful college, the determination of which depended on the authority by which it was established.

In the cafe of Greystock College (e), it appeared, that Pope Urban, at the requeft of Ralph, baron of Greystock, founded a college of a master and fix priests, refident at

(a) Vid. Firma Burgi 26, 10 the time of H. 2.

(b) Bract. 1. 2, c. 24, f. 55, 56.

(c) 49 Ed. 3. 3, 4, 49 Aff. 8 Bro. Corpor. 15, Prefcription 15, 10 Co. 33 b. 1 Rol. 512.

(d) 1 Ed. 6. c. 14.

(e) Dyer 81. pl. 64. 4 Co. 107 b. cited in Adams and Lambert's cafe.

Greystock,

Greystock, and affigned to each of the pricfts five marks per annum, befide their bed and chamber, and to the master 40/. per annum; and it was certified into the book of first fruits and tenths, that this college was in being within five years before the making of the ftatute; and it was refolved, "by the justices," that this reputative college was not given to the King, by that statute, because it wanted a lawful beginning, and the countenance alfo of a lawful commencement, for that the Pope could not found or incorporate a college within this realm, nor affign, nor licence. others to affign, temporal livings to it; but that it ought to be done by the King himself, and by no other.

BUT if the college had the countenance of a lawful commencement, as Sir Edward Coke expreffes it, then it was held that, by that ftatute, it was given to the King.

THUS, in the cafe of the college of Landwybrevy (a); where it appeared that King Edward the firft, in the 12th year of his reign, by his letters patent under the great feal, granted to Thomas Beale, then bifhop of St. David's, and his fucceffors, the advowfon of thirty-four churches, in Wales, within his diocefe, to hold of the King and his fucceffors, fo that the bishop and his fucceffors might appropriate them, or any of them, to their churches of St. David's and Aberguelley, or make and annex prebends of them in the said churches of St. David's and Aberguelley, as to them fhould feem moft convenient; and three years after, the bishop, by the King's affent, as he affirmed in his inftrument, out of the chapter of St. David's, erected and established a college, or church collegiate, in Landwybrevy, being one of the thirty-four churches, and ordained thirteen canons fecular there, namely, five priests, four deacons, and

(a) Dyer 267, pl. 12, 13, cited 4 Co. 107, 108, vid. Hob. 123.

four

four fubdeacons, and annexed and appropriated thirteen of the faid churches to them, as prebends, referving to the bishop himself and his fucceffors, as deans, a place in the choir, and voice in the chapter, and also the power of vifitation and correction; in which, fays Lord Coke, the bishop did not pursue the authority and power given him by the letters patent, for, by them, no power was given him to found such college: and afterwards King Edward the third, by his letters patent, reciting the faid foundation and erection of the faid college, and all other the premises, with some doubt of the validity of it, by the fame letters patent, granted and confirmed to the then bishop of St. David's and his fucceffors, all that which his said predeceffor had done in the premiffes, notwithstanding the statute of mortmain, or any other statute: and though this college was erected or founded, and the appropriations made without the King's licence, and the grant and confirmation made to the bishop and his fucceffors, could not make the college good in law, as it wanted lawful erection and foundation: yet, as it had continued a college in reputation till the 1 E. 6, and had the countenance of the King's letters patent, though they had not effect, the justices held, that it was given to the King by the provisions of this act.

I

BUT, during the times of Popery, even long after the King's confent was thought neceffary to the erection of a corporation, it was held, that that confent was not fufficient, without the concurrence of the Pope, to found an abbey or a convent (a).

IN the more ancient books, we find several instances of private companies of trades within a corporate town, claiming to act as corporations erected by the authority of

(a) Vid. 14 H. 8. 2. 29. Bro. Corpor. 34, and Jenkin's Centuries, 205.

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