and the fociety of the British fifhery (a); fo that the immediate creative act is ufually performed by the King alone, in virtue of his royal prerogative.

In order to erect a corporation, words of fufficient import must be used; but there is no prescribed form, nor appropriate words, peculiarly requifite for that purpose: the words, "to incorporate, to found, to erect" are indeed moft commonly used, but neither thefe nor any derivatives from them are indifpenfibly neceffary; other words, or other forms, which fhew an intention to erect a body politic, in the cafe of a corporation by charter, or the existence of a body politic in pleading one by prefcription, are fufficient (b). Thus in the cafe of Ramfay's chauntry before mentioned (c), it was objected that in the licence to grant the rent, there were no fuch words as these, "to found, erect, or establish," which, it was contended, were the neceffary words of incorporation; but it was determined, that the mere licence to grant the rent in fucceffion was fufficient to confer a corporate capacity on the chaplain and his fucceffors (d).

IN former times a gift of land from the King to the burgeffes, citizens, or commonalty of fuch a place, was conceived to be fufficient to incorporate them under fuch collective name (e). So, if the King granted to the men of Dale that they might elect a mayor every year, and that they should plead and be impleaded by the name of Mayor and Commonalty; this feems to have been fufficient to incorporate them (f). And there are many inftances of

(a) 23 G. 2, C. 4.

(c) Vid. ante, page 52.

(b) 10 Co. 28 a. 29 b.

(d) 10 Co. 27. a et feq. 1 Rol. 513.

(e) 7 Ed. 4. 14 Bro. Corpor. 54.

(ƒ) 21 Ed. 4, 56. Bro. Corpor. 65; but 21 Ed. 4, 57 b. feems contra: it is faid, "fuch a grant to the men of Dale is good, and yet they are not incorporated by that name," which feems odd.

grants

"that their

grants by charter to the inhabitants of a town, town fhall be a free borough," and that they fhall enjoy various privileges and exemptions, without any direct clause of incorporation; and yet by virtue of such charter, fuch towns have been uniformly confidered as incorporated (a). Nor is it neceffary that the charter fhould exprefsly confer thofe powers, without which a collective body of men cannot be a corporation, fuch as the power of fuing and being fued, and to take and grant property, though fuch powers are in general expressly given (b). A grant of incorporation to the citizens or burgeffes of fuch a city or borough, especially an old grant, is good, without the words "their fucceffors." (c)

THE moft ancient fecular corporations established directly by the King's charter, feem to have been gilds, or incorporated companies of merchants, traders, and artifans; and it is not improbable that the practice of expressly incorporating whole towns by charter was introduced in imitation of these companies; for, amongst other franchifes conferred on the inhabitants of towns, by ancient charters, this was frequently one, that they should have gildam mercatoriam, or a merchant gild (d), which was establishing them into a corporate body, gilda, according to Sir Edward Coke, fignifying an incorporate brotherhood or company, for which reafon the place of their meeting was called the gild-hall. "And I have feen," fays that author, "a charter made by King H. 1, to the weavers of London, by which he grants to them that they fhall have gildam mercatoriam, and a confirmation of it made by Henry 2, by which charters, adds he, they

(a) Vid. Firm. Burg. c. 11, and Madox Hift. of Exch. 402, the charter of Dunwich. (b) Vid. 10 Co. 29 b.

(c) Brownl. and Gould's ̧2d pt. 292. (d) Vid. Firm. Burg. 27.

were

were incorporated (a). But the grant of a gilda mercatoria does not seem to have invested the grantees with the local government of the place, for a gilda mercatoria established in a town may be diftinct from the general corporation of the town, as is evident from the following cafe.

THE mayor of Winchester brought an action on the cafe against one Wilks, in which he declared that "whereas, from time immemorial, Winchester was an ancient city, and in the fame city there was and had been, from time immemorial, a custom that it should not be lawful for any perfon, except the freemen of the merchant gild of that city, to use or exercise publicly within the fame city any mystery, art, or manual occupation, in the fame city, during all the time aforefaid, ufed

fendant, not being free of the gild

-yet the de-had ufed and

exercised a trade within the custom, to the damage of the plaintiff."-On not guilty pleaded, and a verdict for the plaintiff, the court was moved in arreft of judgment, and the judges observed, that, where in ancient times the King granted to the inhabitants of a ville or borough to have gildam mercatoriam, they were by that incorporated; but what it fignified in this declaration nobody knew; the plaintiff did not fhew what it was, but only fhewed that it was not lawful for any person to exercise a trade, who was not free of the gilda mercatoria; the corporation, therefore, would wish to maintain an action for a breach of their franchise, without fhewing that they had any; for the franchise was laid in the gilda mercatoria, and the court could not prefume that the gilda mercatoria, and the corporation of the city were the fame, though they might be fo (b).

(b) 1 Salk 203. 2 Ld. Raym. 1129, 1134, cafe of the mayor of

Winton v. Wilks.

THAT

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 composed of members partly taken from the gildry and partly from the trades.

THE objects of charters, as they refpect corporations, are various; fome, properly called charters of incorporation, give them their original constitution: fome, without interfering with their conftitution, confer on them particular privileges, of which kind the city of London can shew 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 some 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 consent 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) 1 Rol. Rep. 226. Brownl. and Gouldf. 2 pt. 100.

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

Ona conteft for the office of high steward 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 caufe, 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 steward; 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 chosen; but that the election in queftion was not had as the election of a vice-chancellor; that the univerfity had accepted these statutes, and were therefore bound by them, and that confequently the election was void.-In fupport 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 ufage 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 subsisted in them under old charters or prescriptive usage; that the validity of these new charters must depend on the acceptance of the university; 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