Formerly, the property and servants of members of parliament were exempt from legal execution, and the privilege of exemption extended not only against enforcement of decrees of courts, but against all actions at law; these latter privileges, however, have been abolished. There are special provisions for subjecting persons enjoying privilege of parliament, to the bankrupt law, along with persons abroad, or protected by sanctuary, &c. It is enacted, that if a commission of bankruptcy issue against a member of the House of Commons, he shall be incapable of sitting and voting for twelve months, and if the commission is not superseded or the debts paid within that time, the speaker is to issue his warrant for a new election. Though the phraseology of the act is applicable to the English bankrupt law, it would probably be extended to sequestration in Scotland.3

1 11 Geo. II. c. 24, and 10 Geo. III. c. 50.-2 54 Geo. III. c. 137, § 1.— 3 52 Geo. III. c. 144.

PART III.

PUBLIC CIVIL INSTITUTIONS.

CHAPTER I.

CORPORATIONS IN GENERAL.

SECT. 1.-Constitution.

4

A CORPORATION is a body of individuals entitled to certain privileges, and not liable to change in the eye of the law, from any alteration among the persons constituting it. No corporation can exist without legislative authority, or a royal charter; but where corporate privileges have been exercised from time immemorial, the original authority of a charter is presumed.2 In England the charter must be under the great seal;3 in Scotland this does not seem to be considered necessary. Incorporations may include within them smaller ones which they have the power of constituting as magistrates of burghs incorporate trades by Seals of Cause.5 This is a practice much at variance with the strictness which regulates corporate rights in England, where it seems to be questioned whether the crown can specially bestow on a subject the right of conferring a charter of incorporation. The mayor and commonalty of London may, it is true, make a fraternity or company within the city; but it appears that such a body cannot act on its

E. i. 7, 64.-2 Wrights of Glasgow v. Crosse, 8th March 1765, M. 1961, Nota. Skirving v. Smellie, 19th January 1803, M. 10,921.-3 Bl. ii. 346. Opinion of Lord Brougham in University v. the Faculty of Physicians of Glasgow, App. 24th August 1835, Scot. Jurist, viii. 100.-1 Õpinion of the Judges in the above. Ibid. ix. 360.-5 Connell on Elections, 533. Fleshers of Canongate v. Wight, 11th December 1835.- Bl. i.

own intrinsic right, but merely as a branch of the general corporation. In England a charter of monopoly cannot be granted without an act of Parliament,2 and the same law has been held to apply to Scotland.3

4

The object of incorporating any body of men is, to give to the whole, for the purposes for which they are united, the powers and privileges which an individual has in transacting his private business, and to avoid the inconvenience of doing things in the name of the several individuals. Corporations may thus sue and be sued, grant and receive property, &c. by the corporate name, and through the proper office-bearers. The acts of the majority of members are binding on a corporation, and it requires a majority to constitute a quorum,-unless it be otherwise provided in the constitution. As the members die out, others will succeed to them according to the principles of the constitution, by succession, election, the choice of individuals, or otherwise.6 Corporations may hold courts or meetings, choose officebearers, and frame by-laws, provided they do not infringe on the laws of the land.7 Corporations may be extinguished, not only by the authority of the legislature, but by the expiry of the time to which their existence is either expressly or by implication limited, or by forfeiture, on account of abuse of power and breach of the conditions on which they are established.8

There is a distinction which in practice becomes material between the functions of a body which has obtained the privileges of a corporation for trading or manufacturing purposes, and an incorporation which is presumed to be the depository of public property, and bound to act for the public good. Some bodies such as the corporations which members of a particular trade have been under an obligation to join, while they have enjoyed corresponding privileges from the obligation-partake partly of both characters. The members are not trustees for the public at large, nor are they entitled to use the property and powers committed to their charge for their own personal benefit. The members of such corporations cannot divide the funds among themselves. It was found illegal for the corporation of goldsmiths in Edinburgh to divide among the members a bonus declared on stock in a public company belonging to the body. In the same case, it was not decided whether or not

B. P. 2168.- E. i.

1 Kyd on Corporations, i. 47.-2 21 Jac. I. c. 3.7, 64.5 Iv. Er. 215, n. 262.-6 F.i. 7, 64.-7 Ibid.- Ibid.

C

such bodies might at their discretion establish a system of pensions or retiring allowances for superannuated members.1

The managers of a public fund, to which the mariners belonging to the vessels of a port had been obliged to contribute, on the condition of deriving corresponding superannuation and other rights, entered into an agreement that thenceforth the society should consist exclusively of shipowners who were practical sailors, and masters. The managers were subsequently about to dissolve the society and divide the funds. Though they engaged to provide for all existing claims on the society according to its old constitution, they were found not entitled to alter it.2

The Court of Session has jurisdiction over charitable foundations, and other bodies of a corporate character in which the public have an interest, to check peculation or irregularity, and to ehjoin such proceedings as are legitimately in accordance with the foundation: thus, when in terms of the foundation of Heriot's Hospital, a youth had been presented to whom the description applied, as being a poor fatherless boy, the son of a freeman and burgess of the town of Edinburgh," and the application was refused by the governors who admitted boys whose fathers were alive, the court found that the boy was eligible and ought to have been elected.3

SECT. 2.-Responsibility of Members.

In England it appears to be essential to the nature of a corporation, that the individual members are not responsible for any act done by them in their corporate capacity. The manner in which the corporation transacts business facilitates the development of this principle, for it is held that the body can only contract through its common seal. It may be usual to add the signature of an office-bearer; but this is a matter of form for the satisfaction of those interested, that they may know that the contract has been transacted by the proper officers, or for some like purpose. It appears to be the seal only that is acknowledged by the courts of law, as binding that ideal person, called the corporation, as party to a contract. The separation of the body itself from the individuals

Howden v. Goldsmiths' Corporation, 2d June 1840. See also Henderson v. Solicitors' Society, 13th January 1842.- Steedman v. Malcolm, 23d June 1842, and see Alexander v. Crabb, 17th November 1842.-3 Ross v. Heriot's Hospital, 14th February 1843.- Bacon's Ab. Corporations (E.), § 2.-5 Bl. i. 475. Kyd on Corporations, i. 267.

composing it, is by no means so clearly made in Scotland. It is still an open question, how far the members of a corporation, as such, are individually liable; and should the matter come to be finally fixed, it is probable that a distinction might be made between corporations for the mere purpose of administration (such as royal burghs), and trading, or other companies, the object of which is profit. The law on the subject is settled as to charters subsequent to the 5th July 1825, in which by 6th Geo. IV. c. 91, the limits of responsibility may be fixed by the crown. A great portion of the law regarding the powers and responsibilities of members of corporations, as it affects mere questions of Partnership, belongs to the department of Private Rights. In other respects it will be found to be materially connected with the laws affecting railways and other public works.

one.

CHAPTER II.

CONSTITUTION AND ADMINISTRATION OF Burghs.

SECT. 1. Constitution of Royal Burghs.

ROYAL burghs are erected by crown charter, those which can produce no charter being "presumed" to have once possessed The oldest genuine charter known to be extant is that of Malcolm IV. (who ascended the throne in the year 1153), in favour of the burgesses of St Andrews. The usual privileges of old granted to burgesses of royal burghs, were, freedom from tolls and other exactions, and from liability to be distrained for the debts of their lords, and license to hold markets. The burgesses are considered as holding their fees of the crown. The feudal imposts were collected by the Lord Chamberlain, who, on account probably of his thus having to settle questions of right to the privileges of burgessship, had jurisdiction over the royal burghs, at which he held 66 ayres" or circuits at intervals. The chamberlain likewise presided in a court of appeal, called "the court of the four burghs," from its being attended by deputies from Edinburgh, Stirling, Berwick, and Roxburgh.

Convention. The above institution seems to have merged into the "Convention of Royal Burghs," which still meets