(E) The Cinque-Ports. (E 1.) What privileges they have. The franchise of the Cinque-Ports (d) is claimed, in part by prescription, in part by act of parliament, and charter, and has been time out. of mind, &c. 4 Inst. 223. (e) In the time of Edward the Confessor there were but three ports, Dover, Sandwich, and Romney; but in the time of William the Conqueror, Hastings, and Hithe were added; and 1° John, Winchelsea," and Rye: yet (f) they are called the Cinque-Ports. 4 Inst. 222. 2 Inst. 556. So the king, by patent, may make any town a member of the CinquePorts. Hard. 56. The Cinque-Ports are part of the county of Kent, and though they have not jura regalia, yet they have many privileges, which were confirmed (g) by the st. M. Ch.9. 4 Inst. 223. (h) And therefore, have all jurisdiction in all actions real, mixt, and personal, which arise within the Cinque-Ports. 4 Inst. 224. (i) - If palatine, a suit in equity may be for them in the duchy court. Vent. 157. Vide 9 Mod. 95. Ro. Abr. 539. 3. But if a man enters into an obligation concerning lands lying in the county palatine, and he is sued upon this at common law, he cannot sue in equity in the duchy court to be relieved against this bond, for the jurisdiction being local, it cannot be extended to this collateral matter. Ro. Abr. 530. Hob.77.-4. And a prohibition was awarded, because the duchy has no jurisdiction in respect of the person, as because the suitors dwell within the county palatine, nor upon the lands of the subject any where but upon the king's own land, and his own revenue, and perhaps upon bonds and assurances given for his revenue of the duchy. Ibid.-5. It has however since been holden, that a bill may be exhibited in the duchy court, to be relieved against the forfeiture of a mortgage of lands lying within the county of Lancaster. Vent. 155. 2 Lev. 24. 2 Keb. 826.- 6. By 4G.3. c. 16., infants in counties palatine are enabled to convey by order of the respective courts belonging to the counties palatine. (d) Or five most important havens, as they formerly were esteemed, in the kingdom. 5 Com. 79. (e) The Cinque Ports held per baronium, and were represented in parliament by the lord warden or keeper of the Cinque Ports; but they did not hold by the tenure of knight service, only by sending ships to sea, &c., and as they were instituted for the defence and safety of the kingdom, they had several liberties and privileges granted to them, in respect of the necessary attendance in those ports. Bract. lib.3. f. 118. 4Inst. 222. 2 Bac. Abr. 535. (f) Though seven in number.' (g) 1. In these words: Barones de quinque portibus et omnes alii portus habeant omnes libertates et liberas consuetudines suas.' 2 Inst. 20.-2. But this confirmation does not extend to pleas of the crown, with which they intermeddle as justices of the peace. Cro. Car. 253. (h) By st. W. & M. sess. 1. c. 7. reciting that the election of members to serve in parliament ought to be free; and that the late lord warden of the cinque ports had pretended unto and claimed, as of right, a power of nominating and recommending to each of the said Cinque-Ports, the two antient towns, and their respective members, one person whom they ought to elect to serve as a baron or member of parliament for such respective port, ancient towns, or members, contrary to the antient usage, right and freedom of elections; it is declared and enacted, that all such nominations or recommendations are contrary to the laws and constitutions of this realm, and for the future shall be so deemed and construed, and hereby are declared to have been and are void to all intents and purposes whatsoever; any pretence to the contrary notwithstanding. (i) 1. The jurisdiction of the cinque ports is general, as well in personal as real and If an action be brought in B. R. &c. for a matter which arises there, it may be pleaded generally in abatement. Vide Abatement, (D 3.) (k) And error does not lie in B. R. or C. B. on a judgment given there. 2 Inst. 557. (l) But a judgment in B. R. or other court of the king, is good, if the privilege of the Cinque-Ports be not pleaded. 4 Inst. 223. 2 Inst. 557. And such judgment does not destroy their privilege afterwards, 2 Inst. 557. 4 Inst. 223. And B. R. cannot take notice judicially, what towns are within the Cinque-Ports. 2 Inst. 557. So prerogative-writs, (m) as habeas corpus, (n) mandamus, &c. run to the Cinque-Ports. R. 2 Cro.543. (0) So an appeal lies in B. R. for a murder in the Cinque-Ports. R. Yel. 13. Cro. Car. 247. (p) So a certiorari lies to remove an indictment for felony in the CinquePorts. R. Cro. Car. 253. 264. 291. (q) mixed actions. 4 Inst. 224-2. Otherwise in debt or trespass transitory. Cro. Eliz. 910.-3. Where a stranger comes within the Cinque-Ports, and does a transitory trespass, and after goes out of their jurisdiction, he to whom the trespass was done may have an action at common law, else he would be without remedy; for they can call none in who are out of their jurisdiction, and the privileges were granted for the ease and benefit, and not the prejudice of the inhabitants. Yelv. 12. 2 Inst. 557.-4. They hold plea of freehold by plaint. Sid. 166.-5. But a judgment in B. R. for lands there shall bind for ever, though such judgment for lands in Wales, or a county palatine, is merely void. 2 Inst. 557. 4 Inst. 223. Bro. Cinque Ports, 24. 2 Bac. Abr. 536. n. adds quære. (k) If an ejectment on a feigned lease be brought of lands within the Cinque-Ports, the courts of Westminster will not allow the tenant of the lands, on his prayer, to be made defendant to plead to the jurisdiction of these courts, but will tie him strictly to the rules of confessing lease, entry and ouster, and pleading not guilty. This is not like the case of antient demesne, where a recovery in the courts above makes the lands frank-free for ever. 2 Bac. Abr. 536. n. (7) 1. A writ of error lies from the mayor and jurats of each port to the lord warden of the Cinque-Ports, in his court of Shepway; and from the court of Shepway to the king's bench. Jenk.71. Dyversyte des Courts, tit. Bank le Roy. 1 Sid.356. 3 Čom. 80.-2. And so too a writ of error lies from all the other jurisdictions to the same supreme court of judicature, as an ensign of superiority reserved to the crown at the original creation of the franchises. Bro. Abr. tit. Error, 74. 101. Davis, 62. 4 Inst. 38. 214. 218. 3 Com. 80.-3. And all prerogative writs (as those of habeas corpus, prohition, certiorari and mandamus) may issue for the same reason to all these exempt jurisdictions: because the privilege, that the king's writ runs not, must be intended between party and party, for there can be no such privilege against the king. 1 Sid. 92. Cro. Jac. 543. 3 Com. 80. (m) Though there is no doubt that the principal position is correct, yet it has been said that it had scarce ever been known, that a prohibition, or habeas corpus, went to the Cinque-Ports. Sid. 166. (n) Ad faciendum et recipiendum; but if ad respondendum a private person, quære, see Mod. 20. 8 Mod. 22. 12 Mod. 666. (0) 1 Palm. 55.96. Sid.355. 4 Inst. 223. 2 Lev. 86. 3 Keb. 598. Hardr.475. (p) 1. 2 Inst. 557. Cro. Eliz. 694.-2. And the reason given is, because the king in a manner is concerned; for if the plaintiff is nonsuit, the defendant shall be arraigned at his suit. Yelv. 15. Cro. Eliz. 911.-3. However, Popham has said, that if the defendant at all times after continued within the Cinque-Ports, so that he might be proceeded against there, no appeal would lie elsewhere. Yelv. 15.-4. If the defendant is in custodiú mareschalli, the appeal may be against him by bill. 2 Inst. 557. Cro. Eliz. 695. 778. (9) 1. Vide Roll. Abr. 395.-2. A quo minus lies also. Hard. 475. (E 2.) What Courts. Within the Cinque-Ports there are several courts: a court before the mayor and jurats of each port; a court before the constable of the castle of Dover; and a court of the Cinque-Ports apud Shepway. 4 Inst. 223. (q) The court before the mayor and jurats is a court of record. 2 Inst. 557. The court before the constable of the castle of Dover holds plea by bill, according to the course of the common law, of things which concern the guard of the castle. 2 Inst. 557. F. N. B. 240. B. But by the st. Art. super Chart. 7. (r) No foreign plea of the county shall be pleaded, which does not touch the guard of the castle. Nor shall the people of the Cinque-Ports be distrained to plead elsewhere, or in other manner than they ought, according to the antient charters or franchises affirmed by the great charter. 2 Inst.556. The court of the Cinque-Ports apud Shepway was created by letters patent temp. Ed. 1. 4 Inst. 224. But must have been confirmed by parliament. 2 Inst. 557. (s) And an erroneous judgment before the mayor and jurats in any port, shall be redressed there. 4 Inst. 224. 2 Inst. 557. R. Dy. 376. a. (t) And that, by bill in the nature of a writ of error, without any writ. 2 Inst. 557. And upon reversal, the mayor and jurats mayor removed from his office. 2 Inst. 557. shall be fined, and the Dy. 376. a. (E3.) How a writ to the Cinque-Ports is directed. A writ to the Cinque-Ports to remove a record of a judgment there, shall be directed to the constable of Dover, who is the immediate officer to B. R. and he shall write to the barons to certify to him, and shall then send it to the court. 30 H.6.6. Vide infra. (u) But if an indictment be before them as justices of peace, or of oyer and terminer, a certiorari to remove it need not be to the warden of the Cinque-Ports; but to the mayor and jurats before whom it was taken. R. Cro. Car. 252. 264. The warden of the Cinque-Ports is an officer, who has been appointed, time out of mind, &c. for the custody of the ports. 4 Inst. 223. And he has the jurisdiction of admiral within the Cinque-Ports (x), (9) 1. There is a court of chancery in the Cinque-Ports, but no original writs issue thence; it serves only to decide matters of equity. Sid. 166.-2. The great use of their chancery is, it is said, to relieve against errors in proceedings at law, which they used to indorse upon the bill. Sid. 356. (r) 28 Edw. 1. c. 7. (s) It is said by Twisden, that nobody knows where this court is. Sid. 166. (t) 1. That is, that upon their judgment no writ of error lies in B.R., yet they are examinable by bill in nature of a writ of error, coram domino custode seu guardiano quinque portuum apud curiam suam de Shepway. 2 Inst. 557. Dyer, 376. 4 Inst. 224. -2. Secus upon the judgments of the court of Shepway. Sid. 356.-3. And so are the books which speak of a writ of error to the Cinque-Ports to be intended. (u) 1. 2Inst. 557. 4Inst. 223.- -2. But writs of appeal must he directed to the sheriff, because the king in a manner is concerned. Cro. Eliz. 604. Yelv. 13. Cro.. Eliz. 911. 2Inst. 557. Vide supra, (E 1.) (r) To hold plea by bill concerning the guard of the castle, &c. according to the course of the common law. 2 Inst. 556. exempt from the admiralty of England. 4 Inst. 223. 2 Inst. 556. 2 Jon. 67. Sir L.Jenk. 1 vol.85. (y) So he shall be constable of the castle of Dover. 4 Inst. 223. 2 Inst. 556.(z) The constable of Dover and warden of the Cinque-Ports is the immediate officer to the king's courts, for all matters within the CinquePorts; and therefore, a writ shall be directed to him to certify a record there. 4 Inst. 223. (a) Though it be in another port; for he shall send for it to the barons of the Cinque-Ports, and transmit it to the king's court. 4 Inst. 223. Vide supra. So, if a defendant, against whom judgment is in B. R. &c. has no land but in the Cinque-Ports, there shall be a writ to the constable of Dover, to make execution. 4 Inst. 223. R. 1. And. 28. 3 Leo. 3. (b) If surety of the peace be demanded in chancery, against any within the Cinque-Ports, there shall be a writ to him to take it. 4 Inst. 223. (F) Corporation. (F1.) What shall be. A corporation (c) is a franchise (d) created by the king. A corporation is a body constituted by policy, with a capacity to take, or to do. Co. L.250. a. (e) For (y) Which jurisdiction is saved to him in several acts of parliament, as 2 H. 5. st. 1. c.6. 27 H.8. c. 4. 28 H.8. c.15. 5 Eliz. c. 5. 11 & 12 W.3. c. 7. et vide 2Jon. 66, 67. Ch. Ca. 305. (z) By 28 Edw. 1. c. 7. the constable of the castle of Dover shall not hold any foreign plea of the county at the castle gate, except it touch the keeping of the castle; nor shall the said constable distrain the inhabitants of the cinque ports to plead any otherwhere nor otherwise than they ought after the form of charters obtained of kings of their old franchises, confirmed by Magna Carta. (a) The writs directed to him are, Rex, &c. constabulario castri sui de Dover, et custodi quinque portuum, &c. 2 Inst. 556. 4Inst. 223. (b) The record must be certified into chancery, and from thence by mittimus to the lord warden to make execution. And. 28. 3 Leon.3. W. Bendl. 46. (c) The words corporation, and incorporation, are frequently confounded, particularly in the old books. The distinction between them is this; a corporation is a political institution; incorporation is the act by which that institution is created. 1 Kyd, 15. (d) 1. The propriety of this appellation depends upon the more or less extensive meaning in which the word "franchise" is used; in its most extensive sense it expresses every political right which can be enjoyed or exercised by a freeman; in this sense, the right of being tried by a jury, the right a man may have to an office, the right of voting at elections, may, with propriety, be called franchises; and in this sense the right of acting as a corporation, may be called a franchise, existing collectively in all the individuals of whom the corporation is composed; in this sense, and in this sense alone, the franchise of being a corporation, can have any precise meaning. 1Kyd, 14. —2. In a less general and more appropriate sense, the word "franchise" means a royal privilege in the hands of a subject, by which he either receives some profit, or has the exclusive exercise of some right; of the first kind are the goods of felons, waifs, estrays, wrecks, or the like; of the second are courts, gaols, return of writs, fairs, markets, and many others. They are estates and inheritances, which may be granted and conveyed from one to another, as other estates, which is not the case with a corporation; in this sense a corporation cannot be called a franchise; the latter is a privilege or liberty, which can have no existence without reference to some person to whom it may belong; the former is a political person, capable, like a natural person, of enjoying a variety of franchises; it is to a franchise, as the substance to its attribute; it is something to which many attributes belong; but is itself something distinct from those attributes. 1 Kyd. 15. (e) A corporation, or a body politic, or body incorporate, is a collection of many individuals For by incorporation it acquires jus persona, and becomes persona politica, and is capable of all (ƒ) civil rights, habendi et agendi. Per Att. Gen. Quo. W. 3. 8. A corporation is ecclesiastical (g), or lay (h); and both are sole (i), or aggregate. Co. L. 250. a. (k) An individuals united in 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. 1 Kyd, 13. (f) There are some corporations which have a corporate capacity only to some particular purpose; as churchwardens. (g) 1. Ecclesiastical corporations are those of which not only the members are spiritual persons, but of which the object of the institution is also spiritual; such are bishops; some deans and prebendaries; all archdeacons, parsons and vicars; and formerly chauntry priests; which are sole corporations: deans and chapters at present, and formerly prior and convent, abbot and monks, which are corporations aggregate. 1 Kyd. 22.-2. It is not the description of the persons who are the members of a corporation, but the purpose of its institution which characterises it to be a lay or a spiritual foundation; and for this reason, though the greater part of the members of the colleges in the universities be clerical, yet they are, in general, to be considered as lay corporations. 1 Kyd, 23. Carth. 93. Vide L. Raym.6.—3. The knights of St. John of Jerusalem, though religious, were not ecclesiastical, but lay corporations. Godb:393. (h) 1. Lay corporations are subdivided into eleemosynary and civil.-2. 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. These are of two general descriptions; hospitals for the maintenance and relief of poor and impotent persons; and colleges for the promotion of learning and the support of persons engaged in literary pursuits, of which the greater number are within the universities, and form component parts of these larger corporations; and others are out of the universities, and not necessarily connected with them. 1 Kyd, 26. 1 Com. 471.3. Civil corporations are established for a variety of temporal purposes. Thus a corporate capacity is given to the king, to prevent, in general, the possibility of an interregnum or vacancy of the throne, and to preserve entire the possessions of the crown; so that immediately on the demise of one king, his successor is in full possession of the regal rights and dignity. Other civil corporations are established for the purpose of local governments, such as the corporations of cities and towns, under the names of mayor and commonalty, bailiffs and burgesses, and other similar denominations; and to this class seem properly to belong the general corporate bodies of the two universities, which whatever may have been the notion of former times with respect to them, are now universally considered as lay corporations with temporal rights, not as eleemosynary foundations, as particular colleges are, though stipends are annexed to particular magistrates and professors; for these are rewards pro opere et labore, in the same manner as the standing salaries of particular officers in other corporations which are confessedly not eleemosynary but civil. Other 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, the Bank, and the different insurance companies in London; others for the regulation of trade, manufactures, and commerce, such as the East India company, the Guinea 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. 1 Kyd, 28, 29. 1 Com. 470, 471. 3 Burr. 1652. 1656. Sawyer's Arg. Quo Warr.9. (i) From their having perpetual succession, and the capacity of suing and being sued in their political character, single persons have, uniformly, in the books of English law, been called corporations. 1 Kyd, 20.. (k) i. Corporations aggregate consist of many persons united together into one society, |