Abbildungen der Seite

that almost all nations call their knights by some appellation derived from a horse. They are also called in our law milites, because they formed a part of the royal army, in virtue of their feudal tenures: one condition of which was, that every one who held a knight's fee immediately under the Crown (which in Edw. 2d's time amounted to 20/. per annum) was obliged to be knighted, and attend the King in his wars, or to pay a fine for his non-compliance. The exertion of this prerogative as an expedient to raise money in the reign of Charles 1. gave great offence, though warranted by law and the recent example of Queen Elizabeth; but it was by the statute 16 Car. I.e. 16. abolished, and this kind of knighthood has since that time fallen into great disregard."

The King possesses also the power of creating Esquires, and therefore if the King by his commission, constituting a subject a magistrate or military officer, &c. term him an Esquire, he ipso facto becomes such, and his eldest son is qualified to kill game, &c. (a). To the Crown belongs also the prerogative of raising practitioners in the courts of justice to a superior eminence, by constituting them Serjeants, &c. or by granting letters patent of precedence to such barristers as his Majesty thinks proper to honour with that mark of distinction, whereby they are entitled to such rank and pre-audience as are assigned in their respective patents (6).

As the fountain of privilege the King possesses various powers. He may remove personal disabilities by making an alien a denizen (c); by enabling a bastard to be a priest, &c. (d). And his Majesty may in various instances exempt his subjects from common law liabilities; as for instance, from liability to serve in public employments, offices, &c. (e), to be arrested in civil actions, &c. (f).

On similar principles is founded the right of the Crown to hold and confer peculiar lucrative powers and franchises. The Jura corona: or rights of the Crown, so long as they are attached to the King, are called prerogatives; but when such prerogatives are delegated to a subject, they acquire the appellation

(a) See 1 T. R. 44. Chitty, G. L. 55,[6. 45S, 9.

(A) 3 Bla. Com. 9.7, (*) Ante, c. 2 s. 3. And as to theKing's

(c) Ante, ch. 3. power to enable a town to send repre

(d) Ante, ch. 5. But now a bastard tentative* to Parliament, see ante, ch. 6t

anav be a print without, 1 Bla- Com. (f) See Index, tit. Protection.


, . .. . i •. .i»'i

of franchise; for all franchises are derived from the King (a). A franchise is defined (b) to be a royal privilege or branch of the royal prerogative subsisting in the hands of a subject, by grant from the King. And formerly, grants of royal franchises were so common, that in the Parliament which was held 21 Edw. 3. (c), there is a petition from the commons to the King, stating that franchises had been so largely granted, in times past, that almost all the land was enfranchised to the great averisement and estenysment of the common law, and ingreat oppression of the people; and praying the King to restrain such grants for the time to come; to which his Majesty answered, that the franchises which should be granted in future, should be made by good advisement.

In its more extensive sense the term franchise signifies every . description of political right which a freeman may enjoy and exercise.

Being derived from the Crown, these franchises can in ger neral only arise, and be claimed by royal grant or by prescription which supposes it (d). They may be vested either in natural persons or bodies politic, in one man or in many, but the same identical franchise that has been before granted to one cannot be granted to another, for that would prejudice the former grant (e). And it is a clear principle that the King cannot by his mere prerogative diminish or destroy immunities once conferred and vested in a subject by royal grant.

Franchises are extremely numerous and are of various kinds. The principal of them will be here mentioned. They are

1. counties palatine, cinque ports, &c. and counties corporate;

2. corporations: 3. game franchises, and herein of the King's prerogative as to game, and of forests: 4. free chases:: 5. parks: 6. free warrens: 7. fisheries and fish: 8. mines:

9. fairs and markets: 10. waifs: 11. wrecks: 12. estrays: 13. treasure trove, and 14. deodands.

. - -i *

1. The counties palatine, Chester, Durham and Lancaster, the royal franchise of Ely, the courts of the cinque ports,

(a) 2 Iiist . 281; 496. 4 Com. Dig. (rf) Bract. I. 2. c. 24. f. 55, 56. 2

244. Bla. Com. 37. ,

(A) Finch, Law, 164. 3 Cruise Dig. (r) Ibid. 2 Kol. Ab. 191. Keilw.

8/78. lsted. 196. - , . : .-

(r) 21 Edw. 3. Rot. Pari. voL 2. p. 16.


the Stannary courts, and various courts in cltiesr boroughs, &c. through0"* ^ae kingdom, possessing exclusive and some of

'them peculiar privileges, may be ranked among royal franchises, as they in general arose from the favor of the Crown to those

'particular districts wherein we find them erected (a).

A court leet is a court of record, having the same jurisdiction within some particular precinct, which the sheriff's torn

'hath in the county. This Court is not necessarily appendant to a manor, like a court baron, but is derived from the sheriff's torn; being a grant from the King to certain lords, for the ease of their tenants, and resiants within their manors, that they may administer justice to them in their manors (b).

To every court leet is annexed the view of frankpledge; visus frankplcgii, which means the examination or survey of

"the frankpledges of which every man, not particularly privileged, was antiently obliged to have nine, who were bound that he should always be forthcoming to answer any complaint

There are also counties corporate; which are certain cities and towns, some with more, some with less territory annexed to them; to which out of special grace and favour, the Kings 'of'England have granted the privilege to be counties of themselves, and not to be comprized in any other county; but to be governed by their own sheriffs and other magistrates, so tftai ho officers of the county at large have any power to in'fenheddle therein (c). There is no doubt that the Crown possesses the power of granting to any city to have justices of their own within themselves, and may exclude by express 'words the county justices from intermeddling in the ordinary business (if a justice of the peace (d).

C- Corporations.—Corporations were originally formed for the purpose of promoting the welfare and interests of com irierce and the arts; and for the better government of the sub

[ocr errors][ocr errors]

(a) See Bae. Ab. Courts Palatinate, (c) 1 Bla. Com. 120. That the King

&c. 1 Bla. Com. 116, 7. 3 Ibid. 78, may enable a tonn, &c. to choose its

fcc . Higher powers formerly exer- own sheriff. Vin. Ab. Prcrog. M. b. 18

cised by Lords Palatine vested in the vol. 87;

Crown, 27 H. 8. c. 24. See Skinn. 604- (rf) 2 Stra. 1154. 3 T. K. 279. post .

(A) 2 Inst. 71. 4 Inst, c . 54. 3 Burr. 4 T. R. 456. Rep. 1859.

ject .

ject A consolidation of interests tends to their advantage and preservation; and ensures a degree of regularity, unanimity, and strength, which cannot be found in a disjointed and unconnected body. The peculiar properties of a corporation; its political and indivisible character; and its capability of. transmitting its rights and immunities to its successors to the remotest period, by operation of law and without any respect to the individual and personal capacities of its members; are incompatible with the notion of an unconnected assembly of persons; without the means of expressing their will, or a hand exclusively appointed to protect their united rights. Political governments and sovereign power originated from a common . sense that their existence was necessary on these principles: and a subdivision of these artificial or political constitutions naturally and imperceptibly followed.

A corporation may be defined to be a collection of many individuals, united into one body, under a special denomination, having perpetual succession under an artificial form, and vested by the policy of the law, with the capacity of acting in several respects as an individual, particularly of taking and granting property, of contracting obligations, and of suing and being sued, of enjoying privileges and immunities in common, and of exercising a variety of political rights, more or less extensive, according to the design of its institution or the powers conferred upon it, either at the time of its creation or at any subsequent period of its existence (a).

Single persons cannot partake of many of the properties of a corporation, but as they may partake of a few, as for instance, the capacity of having perpetual succession; our law has divided corporations into two classes, corporations aggregate and corporations sole (b). Corporations aggregate consist (c) of many persons united together into one society, and are kept up by a perpetual succession of members, so as to continue for ever; of which kind are the mayor and commonalty of a city, the head and fellows of a college, the dean and chapter of a cathedral church. Corporations sole consist of one person only and his successors, in some particular station, who are incorporated by law, in order to give them some legal capa

(a) 1 Kyd 13. (<•) 1 Bla. Com. 469.

(A) Co. Lit. MO, a.

7 cities citie?s-and:advantages, particularly that of perpetuity, which in their natural persons they could not have had. In this sense the King is a sole corporation (a); so is a bishop; so are some deans and prebendaries, distinct from their several chapters; and so is every parson and vicar.

Corporations, whether sole or aggregate, are also divided into ecclesiastical and lay. The former are composed of spiritual persons, and have for their object the support of religion and the church. The latter are instituted for temporal purposes, and are either civil or eleemosynary. Thus the King is a civil corporation, that the power, the splendour, and the possessions of the Crown may be transmitted to the successor without any interregnum. Other civil corporations are established for the maintenance and regulation of some particular object of public policy: such as the corporation of the Trinity House for regulating navigation (b); the Bank and the different Insurance Companies in London. Others for the regulation of trade, manufactures, and commerce: such as the East India Company, and the Companies of Trades in London and other towns. Others for the advancement of science in general or some particular branches of it: such are the College of Physicians and the Company of Surgeons in London, for the improvement of the medical science; the Royal Society for the advancement of natural knowledge; the Society of Antiquarians for promoting the study of antiquities; and the Royal Academy of Arts for cultivating painting and sculpture. Some are also instituted for the purpose of local government: as Mayor and Commonalty, Bailiffs and Burgesses of any particular town or district. And some corporations of this kind are not only for local government, but for particular purposes: as Churchwardens for the conservation of the parish goods, &C.; and the Universities are civil corporations (c). Eleemosynary corporations are such as are constituted for the perpetual distribution of the free alms or bounty of the founder of them, to such persons as he has directed; as Hospitals, Colleges, &c. (d), • >.,*:.>

The exclusive right of the Crown to institute corporations, and the necessity for its express or implied consent to their

[ocr errors]
« ZurückWeiter »