If the same produced under the Great Seal put to it when made be not sufficient Evidence to satisfie what can be Trin. 1. E. 3. r. 61 62. 2. But in this Case it is enrolled upon record also Inter placita Corone penes Camerarios in Scaccario it is enrolled there Obj. But perhaps it may be objected also That this was no Act of Parliament but only a Grant or Patent in Parliament because 't is that the King de assensu Prelator ' Comitu ' Baron ' ac totius Communitat ' regni in praesenti Parliamento Resp That Acts of Parliament observe not any certain Form Jones 103. In the Case of the Earldom of Oxford express that there was variety in Penning Acts of Parliament in ancient time Dominus Rex per Consilium fidelium subditor ' suor ' statuit and other forms there are yet good Acts. But that they were anciently in form of Patents or Grants in Parliament Magna Charta C. 1. is in form of a Charter or Grant The form of the Act of Parliament 11 E. 3. for creating the Prince Prince of Wales begins Edwardus Dei gratia c. in form of Patent Princes Case R. 8. fol. 8. and is De communi assensu consilio Prelator ' Comitu ' Baron ' aliorum de consilio nostro in presenti Parliamento and adjudged a good Act of Parliament and the Authorities and Reasons to prove it an Act of Parliament are fol. 18 19 20. so full that it might be thought that this Objection would never have béen made And that this is in the same form that all the rest of the Acts of this very Parliament of the 1 E. 3. are Membr the 17. appears by the Patent Roll of the same Parliament A Charter granted by the King de assensu Prelator ' Comitu ' Baron ' Communit ' Regni in Parliamento apud Westm ' to enable the City to apprehend Felons in Southwark An Act in the same form for the annulling the Conviction of Treason that was against Roger Mortimer in the time of E. 2. Rot. Claus 1 E. 3. M. An Exemplification then entred of an Act made in the same form in the same Parliament Rot. Pat. 2 E. 3. P. S. 1. M. 17. for the annulling the Attainder of Thomas Earl of Lancaster attainted tempore E. 2. Divers other Acts of Parliament in the same form made 1 E 3. Rot. Pat. 2 E. 3. P. S. 2. M. 11. Inst 2. 527. 639. for annulling divers other Attainders that were tempore E. 2. so that as to this Act of Parliament 1 E. 3. I think the Objections are answered and that it is an Act as pleaded And as to the other Act 7 R. 2. that that is no Act of Parliament only a Prayer of the Commons that there might be a Patent granted to the City confirming their Liberties licet usi vel abusi fuerint and the answer was Le Roy le vieult and object for Reasons against that being an Act of Parliament Obj. 1. It wants the assent of the Lords 2. It is only a Prayer of the Commons to have their Liberties confirmed and the King's answer le Roy le vieult but nothing done to confirm it Resp 1. As to the first Objection Supposing it true that there is no mention made of the assent of the Lords yet the Act is a good Act. 1. It appears to be in Parliament ad instantiam requisitionem Communitat ' Regni nostri in presenti Parliamento 2. The answer in Parliament that is given by the King to the making all Laws is given to this le Roy le vieult 3. And next it is admitted to be upon the Parliament Roll 7 R. 2. Num. 27. I have before said that Acts of Parliament are not in any certain form sometimes entred as Charters or Grants sometimes as Articles sometimes and frequently as Petitions the Books I have already cited prove it But according to the Course of Parliaments let it be in what form it will let it begin in which House it will yet it must go through both the Houses of Parliament before it can come to the King for his Royal assent If either House rejects or refuseth there it ends it comes not to the King nor is the Royal assent in these great operative words Le Roy le vielut in Parliament given to any thing but what the whole Parliament have assented and agréed unto So that this is an Objection grounded upon a Reason contrary to all the course of Parliaments which shews that the Lords assent was to it though not mentioned Selden's Mare Claus 249. gives a full Resolution herein Certissimum est saith he that according to Custome no Answer is given either by the King or in the King's Name to any Parliamentary Bills before that the Bill whether it be brought in first by the Lords or by the Commons hath passed both Houses as it is known to all that are versed in the Affairs and Records of Parliament And in the Prince's Case before cited there the Act is said to be de Assensu Consil ' of the Lords but doth not name the Commons And this Answers the other Reason also viz. That it should only be a Prayer and Petition also to have a Charter of Confirmation granted For since the Forms are in manner of Petitions since the Royal Assent or Words Le Roy le vieult is never put to any Bills in Parliament but such as are thereby made and passed into Laws the giving the Royal Assent is sufficient in this Case to prove it a Law But for farther Evidence 1. We have it under the great Seal of King R. 2. thus penn'd Ad instantiam requisitionem Communit ' Regni nostri Angl ' in presenti Parliamento nostro pro majori Quiete Pace inter Legeos nostros focendis pro bono publico de assensu Prelatorum Dominor ' Procerum Magnat ' nobis in eodem Parliamento assistentium c. So that hereby it is fully proved and shewn that though the Assent of the Lords be not mentioned in the Copy yet that it was had and under the Great Seal of R. 2. it so appears We have also in our Book of the Acts of that time in the City Lib. H. f. 169. a b the Proclamation made upon the first promulging this Act in the time of Sir Nicholas Brembre Lord Mayor and therein it is also entred in the same words as before under the Great Seal of R. 2. de assensu Prelator ' c. Next our Books and continual Practice ever since 'T is true that in the 7 H. 6. fol. 1. when 't is said that the Customs of London were confirmed by Statute Quaere what Statute but it is not there made a Quaere whether this were a Statute Instit 4. 250. Rep. 5. 63. Rep. 8. 162. all say that the Customs of London are confirmed by Parliament 7
that Opinion in Law so the Mischiefs would be great if the Law were otherwise For First That no Corporation hath any other Creation than other Franchises have 't is undoubtedly true that the King is the Original and Commencement of all Franchises they have their beginning from him the Books are clear and full in it I need not quote them though there are many Kelway 138. 17 Ed. 2. 530. in the Reports of those times set forth by Mr. Serjeant Maynard Now my Lord there can be no Corporation but by the Kings Letters Patents for even the Prescription doth suppose there was the Kings Patent to create it at first And therefore the proper Inquiry will be about the Second thing II. How far the Breach of Trust that is annexed to a Franchise is a Forfeiture of that Franchise First of all There is no Rule in Law more certain than that the Mis-user of a Franchise is a Forfeiture of that Franchise This the Statute of 18 Ed. 2. does very well prove which was an Act of Grace to restore Franchises to those that had lost and forfeited them There it was restrained Ita quod libertat ' non sint abusae And my Lord Coke 2 Inst in his Observations upon the Statute of Westm ' 1. That Chapter of it that concerns Towns that exacted more Murage than was granted fol. 223. says They shall lose that Grant for ever says the Mirror of Just which my Lord Coke there quotes that is no more than the Common Law for the Law wills that every Man should lose his Franchise that does misuse it So the Abbot of St. Albans Case 8 Hen. 4.18 The King seized the Franchise into his hand because the Abbot who had the Goal would not give Pledges to make Deliverance and for detaining his Prisoners a long time without making a lawful Deliverance And so 20 Ed. 4. 6. The Abbot of Crowland's Case for detaining Prisoners acquitted after Fees paid the King seized the Goal for ever These two are cited by my Lord Coke 2 Inst 43. And in Sir George Reynel's Case 9 Report Fitzherberts Abridgment Titl ' coron ' placit ' 233. A Layman was taken in a Robbery the Ordinary challenges him as a Clerk whereas he was a Layman It was ruled that for his false challenge the Ordinary should lose his Temporalities to the King and lose his Franchise to challenge Clerks for him and his Successors for ever Thus far is plain That Franchises if misused are forfeited and that though enjoyed by Persons in a corporate capacity as appears by the Cases put And then as a Corporation may forfeit any Franchise they are seized of in right of the Corporation so may a Corporation forfeit the Franchise of the Corporation it self upon the same ground and reason in Law unless any one will say The Franchise of being a Corporation cannot be misused and that would be a very strange matter to assert Every Corporation is entrusted with a Franchise to make Laws for Governing the Subject within its Iurisdiction If that Power be exercised to the Subjects prejudice as it may be it were an hard matter if there were no Law to redress that Grievance Suppose a Corporation under their common Seal should authorise a Rebellion would any Man say that were no forfeiture 'T is said indeed by Pigott 21 Ed. 4. f. 13. Arguendo upon a Case where the Question is Whether a Corporation should avoid a Bond entred into by the Mayor by Duress That a Corporation can neither commit Treason or Felony but upon the same reason that he urges That a Corporation cannot act at all that is abstractedly from all the Members of it for so this Notion is that a Corporation is a Body in consideration of Law only and not reality and therefore the particular Act even of the Head of that Body shall affect him personally only But this is only a Notion of his arguing but it is the best opinion of that Book that Duress to the Members did so affect the Corporation that it should avoid the Bond. Now my Lord a Corporation may be surrendred and surely that that may be surrendred may be forfeited and I shall offer you some Authorities in this case 12 E. 3. rot claus memb 36. A Writ is directed to the Constable of Dover reciting That the Cinque-Ports had seized divers Goods of several Merchant Strangers Portugueses and others and the Writ commands that Right should be done or else the Franchise should be seized into the Kings hands 6 Ed. 2. rot claus No. 5. The Liberties of the City of Bristol were seized and the custody of it granted to _____ for divers contempts and injuries done per Majorem Ballivos Communitat ' to the King and so the close Rolls of R. 2. m. 6. There is another Case that comes further Pasch 9 Ed. 1. Majus rot 25. I find it likewise among my Lord Chief Iustice Hales Collections that he has given to Lincolns-Inn Library I took it out of that Book 'T is in the Collection of the Adjudicata in the time of Ed. 1. fol. 28. a. Thus it was There was the Abbot of St. Austin in Canterbury had made an Agreement with the men of Sandwick about paying ten Hogsheads of Wine yearly to the Abbot and there was due to the Abbot some thirty Marks and he had Iudgment and Execution went out and thus 't is in the Book Vic. de Mandatur quod Levari fac ' 30 Marcas de bonis ipsius ad opus Abbatis pro pretio 10 Doleorum Vini annuatim solvend ' And they made rescue when the Sheriff came to execute the Writ and they were sued for that and the Iudgment of the King and his Council which was by Parliament for it was adjourned into Parliament was Quod Libertas de Sandwick sorisfact ' sit And there is this Observation tho it be written with the same Hand which is not his but the Clerks that transcribed it Judicium illud extendit contra Barones 5 Portuum eorum libertates ut mihi videtur These are the Words of that Book And this will go a great way with the City of London as to their confirmation of Magna Charta for the Cinque Ports are confirmed by Act of Parliament as well as they But my Lord there are many Cases of like nature and that even in the Case of the City of London too as I shall shew you by and by Now tho these are not Iudgments in Quo Warranto's to out a Corporation of a Franchise of being a Corporation yet it shews that these things were forfeitures of all the Franchises of a Corporation for a Seizure is never but where there is matter of forfeiture found upon Record as in Sir George Reynel's Case or to ground a forfeiture upon which to bring a Quo Warranto as in our Case But in the Case of 9 Ed. 1. there it does appear Iudgment was given by the Parliament that the Liberty
replevyed to them the Office of Mayor Usque quindenam Sancti Martini and also recites which Office was seized into the Kings hands by the Iustices of Eyre in the Tower of London and he was willing to continue it longer to them ex gratia speciali he did grant them the said Office Quamdiu c. Then the second part of Pat ' Rolls in 20 E. 2. it is recited that the King had seized the Office of the Mayoralty and had replevied it from time to time and that one Hamond de Chigwell was made Mayor the King had excepted of him for Mayor Et Rex volens eis gratiam uberiorem facere grants him the Office of Mayor Now my Lord these seizures shew plainly that the Franchises of the City were forfeitable for either they were seized upon matter of Record found for a Forfeiture or else upon some matter which was to be a ground of a Forfeiture So then they were absolutely gon and I do not find that these were ever taken out of the Kings hands by Process of Law but were restored by Grace and Favour for till the 20 E. 2. it appears that they so long continued in the Kings hands and he absolutely disposed of them Here is now a Favour to them and a plenary restitution Thus it stood in the Reigns of E. 1. and E. 2. Now the next thing will be for their Act of 1 E. 3. which they back with my Lord Cokes observation upon it that it was Authoritate Parliamenti Now truly my Lord there is no such Act of Parliament that is any where extant For it is not in Print neither are there any Parliament Rolls of E. 3's time till 4 E. 3. And he that cites it my Lord Coke himself cites no Roll at all for it so that where we shall find this Act of Parliament truly I do not know But this Act at best amounts to no more than that for any personal Trespass of Officers the Liberties of the City should not be seized but that signifies nothing for that is not our Case There are Acts of the Corporations not of particular Officers though I cannot but observe how the Law was taken to be at that time before this their pretended Act even for the Offence of private Officers and that appears to be the Law too in the Case of 9 E. 1. which I cited before which was only the Offence of the Mayor of Sandwich who refused to answer for a Trespass and a Rescue was committed and the whole Liberty seized Now this Act of 1 E. 3. be it what it will though they would take it in that sense that no forfeiture should be incurred for the Trespass of an Officer yet I find quite the contrary thereunto and that it hath not prevailed even in that sense For 5 E. 3. rot claus 14. there the King did discharge one from the Office of Mayor and commands the Aldermen and Comminalty to choose another Now this my Lord I take to be not so much a punishing of the Officer as a breaking in upon the Franchise it self But I shall shew more fully in the Reign of R. 2. that this was done Yet I will first take notice of the Statute of R. 2. which is the next thing that they rely upon and this with submission is no Act of Parliament neither for though my Lord Coke in his 4th Inst 205. says this is the Statute mentioned in our Books which supports the Customs in London to devise in Mortmain and other Customs against Acts of Parliament and cites Authorities in the Margent yet my Lord I have looked and can find none of them to speak to the purpose for which they are cited but the Book of 7 H. 6. fol. 1. where the custom of London to devise in Mortmain is in Question and there it was ruled a good custom because of the Statute that confirms it after the Statute of Mortmain but says that Book Quere the Statute to that they were not well apprized of the Statute in those days tho this were the foundation of all the resolutions of that kind It appears by the Roll that it is no Act of Parliament in the nature of it for its 7 R. 2. N. 37. 't is a Prayer of the Commons That there might be a Patent granted to the City confirming their Liberties Licet usi vel abusi fuerint And the Answer was Le Roy le veult but this is no Act of Parliament it is no more than a confirmation of the Letters Paâ—ents which had been primo R. 2. Besides further there never was any Patent granted in pursuance of this Act And yet 't is plain that if it had been to it would only have extended to Forfeitures that were past but could never amount to a Dispensation or License for the future And my Lord this appears by these Authorities and Records that I shall now cite The 1 part of Pat. Rolls 16 R. 2. Membrano 36 37. whereby it fully appears That notwithstanding these pretended Statutes there was no such Priviledg in the City but that for the Offences of their Officers or themselves the Franchise should be seized But my Lord I must a little observe that truly the City have attempted to raise themselves above the fear of any Iudgment in any of the Kings Courts for in primo R. 2. Parl. Roll 126. there they Petition for a Confirmation of their Charter with a Clause of licet non usi vel abusi which was that they then would have to be done in Parliament for them But they do likewise desire in their Petition that notwithstanding any Statute Priviledge Charters Iudgment made or to be made to the contrary their Liberties might be confirmed of this 't is said the King will advise There is in 1 R. 2. Parliament Rolls 121. as pleasant a Petition as the other they there do desire that the interpretation of their Charter may be left to themselves and where it is doubting such meaning as they should put upon it should be allowable But to that the Kings Answer was That he would make the interpretation of his own Charters according as his Counsel should advise So that I observe they would feign have been absolute but they could never do it It hath always been denied them So that from what was done at this time and after 7 R. 2. it does appear plainly that there was no difference between the City of London and any other Corporation only this is really the greatest But as all greatness is the Kings Favour so when men forget their duty in abusing the Kings Favour this great Court is the place to put them in mind of it I come then to the third Question III. Whether the Act of the Mayor Aldermen and Commonalty in Common Council assembled be an Act of the Corporation so as to make a Forfeiture of the whole And with submission my Lord that will be pretty clear too upon these Reasons 1. First
R. 2. Iustice Jones 283. hath it verbatim out of the Parliament Roll. The constant course of pleading the Customs of London is to plead a confirmation of them by this Act of Parliament So that as to this point there is not any one Book or Opinion before this day in favour of what is affirmed that these are not Acts of Parliament and our Plea stands good in Law and the Ordinance and By-Law and Custom good and then no Forfeiture thereby 3. But suppose and admit that this By-Law be the Act of the Corporation be not good and sufficient in Law nor in Law justifiable Quid sequitur Then it is void in Law Then if it be void in Law How can it make a Forfeiture Suppose a Lessee for years or for Life makes a Feoffment but it is not duly executed for want of Livery and Seisin by which it is void in Law Can this make a Forfeiture of the Estate of the Lessee Suppose a Corporation Tenant pur auter vie makes a Feofment which is void for want of Livery duly made Will this forfeit their Estate A void Act shall not destroy or forfeit a precedent Estate A Parson that hath a former Benefice accepts a second Benefice incompatible Dy. 377. b. was instituted and inducted but did not read the the Articles his first Benefice was not forfeit or void hereby because by the Statute the not reading his Articles had made his Institution and Induction void So that then whether this By-Law or Ordinance were good or void in Law perhaps is not much material it cannot make any Forfeiture of the Corporation it can have no such effect for if it be a good and lawfull By-Law no Forfeiture can be for doing a good and lawfull Act. If the Ordinance be not warrantable by Law then it is void in Law if void in Law a void Act can make no Forfeiture Obj. But you received and exacted from the Kings Subjects Summs of Money by this Ordinance Resp Suppose we did and that we had no right to have this money if an Officer by colour of his Office receive more than is due it is Extortion and a Crime punishable But if a Person that is no Officer take money that is not due or more than is his due the Parties injured have their Remedies by Action but this is no Crime for which any Forfeiture or Penalty is incurred by the person that so takes or receives the money Suppose a Lord of a Manour exact or take greater Fines or Summs of Money from his Copyholders or Tenants than he ought they have their Remedies by Actions against those that receive so if a Corporation receive or take moneys supposed to be due but in truth is not how can this Forfeit any thing Obj. But you took upon you a Power and Authority to tax the King's People and to take and receive the money so taxed Resp This is but the same thing only put into greater words It is still but the making of an unlawfull By-Law and thereby appoint money to be paid which ought not or more than should be and the turning of it or expressing it in stately words of taking upon you or usurping Authority to impose upon and tax the King's People Whosoever doth any act or thing he takes upon him and doth also execute the Power and Authority of doing that act or thing which is comprehended in the thing done The making a By-Law or Ordinance whereby more is ordered to be paid than ought or money appointed to be paid where none is due is still all the fact and thing done and if that make no Forfeiture of the Corporation or Crime punishable by Indictment or Information except only as the Statute 19 H. 7. c. 7. which I shall hereafter mention hath appointed for Forfeiture of 40 s. The taking or usurping the Power to doe it cannot be more or effect more than the doing the thing which comprehends it 2. As to the other Cause alleadged in the Replication for Forfeiture the Petition printing and publishing it In the Replication 't is alleadged That a Parliament the 10th of January was prorogued to the 20th of January That the 13th of January the Mayor Commonalty and Citizens of London in their Common Council assembled malitiose advisate seditiose took upon them ad judicand ' censand ' the King and the Prorogation of the Parliament by the King so made and that the Mayor and Commonalty and Citizens of London so in the said Common Council assembled did give their Votes and Order That a Petition in the Name of the Mayor Aldermen and Commons of the City of London in Common Council assembled should be exhibited to the King In which Petition it was contained That by that Prorogation the prosecution of the publick Iustice of the Kingdom and the making necessary provisions for the Preservation of the King and his Protestant Subjects had received Interruption And that the Mayor Commonalty and Citizens of London in Common Council as aforesaid assembled did malitiously and seditiously to the intent the same should be dispersed among the King's Subjects and to cause an Opinion that the King obstructed the publick Iustice and to stir up Hatred and Dislike against the King's Person and Government did order the said Petition to be printed and afterwards they did print it and caused it to be published The Defendents in their Rejoinder to this Breach set forth and alleadg Rejoinder as to the Petition That there was a Plot against the Life of the King the Government and the Protestant Religion and set forth all the Proceedings upon it the Attainders and Impeachments of the Lords in the Tower in Parliament depending the Proclamations declaring the Dangers by this Plot that they could not otherwise in humane Reason be prevented but by the Blessing of God upon the Consultations and Endeavours of that great Council the Parliament and commanding a General Fast to be kept in London the 22d of December and that it was kept accordingly The Proceedings in the Parliament towards the Tryall of the Lords and preparing Bills to be enacted into Laws for preservation of the King and his Subjects against these Plots and Cospiracies That divers of the Citizens loyal Subjects being much affrighted and troubled in their Minds with the apprehension of these Dangers did exhibit their Petition to Sir Patience Ward then Lord Mayor and the Aldermen and Commons in Common Council then assembled containing their Fears and Apprehensions and Expectations from the King and that Parliament did petition that the Common Council would petition for the sitting of that Parliament at the time prorogued And thereupon the Mayor and Aldermen naming them and Commons in Common Council assembled from their Hearts truly loyal to the King and for the satisfaction of the Citizens who had exhibited that Petition and of intent to preserve the Person of the King and his Government did give their Votes and order a Petition
was done seditiously or not if not then there is no sufficient Assignment of a cause of forfeiture if it were then 't is a crime for which the Offender is indictable and that I say is absolutely impossible for a Corporation to be guilty of And here I will throw in also that business of the Toll and I will for argument sake admit the taking of a wrongful Toll to be Robbery and then let the argument go on I have heard it said within the Bar occasionally that a Corporation is intrusted with the Government and that they may commit Treason and raise Sedition as Mr. Solicitor hath said I suppose it must be under their Great Seal But I confess I believe it is rather spoken to amuse than to satisfie but I really think it is no ill nor unjustifiable thing for me to say nor against the Government to affirm That 't is impossible a Corporation can commit Treason or that it is intrusted with the Government in any such kind But first my Lord I shall shew you what Opinion former times had and that because such an Opinion as this hath been broached of late days Lord Chief Justice Mr Recorder Will you be much longer Because I must sit here at Nisi prius this Afternoon and yet I would feign hear the Argument if it would not be too long Mr. Recorder No my Lord I have almost done and will cut short In 21 E. 4. fol. 13. b. 't is said by Pigott That a Mayor has two abilities the one to his own use to take and to grant and to do as another natural person does and then the Mayor as Mayor and Commonalty hath another Capacity to their common use and profit and that is but a name an Ens rationis a thing that cannot be seen and is no substance and for this name or Corporation 't is impossible they can do or suffer any wrong as to beat or be beaten as such a Body but the wrong is made to every member of the Body as to his own proper person and not as to the name of Corporation nor can the Corporation do a personal wrong to another nor can they commit Treason nor Felony as to the Corporation nor against any other person And if a Writ of Debt be brought against the Mayor and Commonalty or other such Body upon an Obligation and they plead it is not their Deed and it is found their Deed they shall not be imprisoned as another single person shall The same Law is if they are found Dissessors with force they shall not be imprisoned nor in a Writ of Ravishment of Ward they shall neither be imprisoned nor abjure the Realm for such a Body is hut a name to which such an act cannot be done So says Catesby in the same Book In a Writ brought against them no Capias shall issue because they are but as a dead person in Law and the Appearance upon a Capias cannot be otherwise than personal And so to this purpose says the Chief Iustice there If this Body will do any thing it must be done by Writing And all along it is the Tenor of the whole Case that a Corporation cannot commit Treason or any other Crime But the reason of the thing is above any Authority Suppose that they under their Common Seal should commit Treason and you bring an Indictment of Treason against the Mayor Commonalty and Citizens of the City of London what Iudgment shall be given against them in their corporate capacity What it shall be that Suspendatur per collum Corpus politicum And then what execution shall be done upon that Sentence What must they hang up the Common Seal Nothing else you can do can affect them but in their private capacity there they may be punished as single persons A Penal Statute says That he or she that offends against the Law shall forfeit so much or incur such a Penalty Is a Corporation Male or Female that it should come under such a provision but the real reason of the Law is this it is a civil Being it is Ens civile it is Corpus politicum it hath civil qualities but it hath no moral qualities and all Offences consist in the immorality of them and there must be malice to make that immorality No words or Acts are Treason or Felony unless there be a traiterous mind or a felonious mind and therefore a mad-man cannot be guilty of Treason or Felony Serjeant _____ brought an Action for these words That he had spoken Treason it was moved in Arrest of Iudgment that this cannot be Actionable for he might speak Treason in putting a Case ay that were well said they if it could be understood so but we must intend it that he spoke Treason as his own words ex corde suo which makes it Treason for Treason consists in the immorality of the mind Another reason is what Pigot said as I said before That a Corporation is but a Name an Ens rationis a thing that cannot sée or be séen and indéed is no substance nor can do or suffer wrong nor any thing where a corporal appearance is requisite What my Lord Dyer says in Moor 68. that he never saw is I believe true in general that no Man ever did sée that a Corporation could be bound in a Recognizance or Statute Merchant and why because it must be acknowledged in person And so in this case The Guilt follows the Person but cannot a méer capacity In all Crimes the Offender must appear in person and plead in person and suffer in person but you can never bring the Mayor Commonalty and Citizens into Goal to appear and plead to an Indictment to receive a Iudgment or suffer Execution Can a Body Politique that is invisible appear in person Obj. But then there is this great Objection By this means they say if there be no punishing of them there is no Government and they may commit Treason under the great Seal they may raise Armies and instigate a Rebellion and all with impunity Sol. My Lord I say no and I give two Answers to it that are not to be replyed to and the first is this 1. All these Persons that are met together though they are met corporaliter in their corporate capacity â—â—r the Acts of the Corporation at that time yet when they go out of their corporate business and commit Treason or Felony the Crime does not egredi personas every one of them is a Traitor or a Felon and notwithstanding they appeared there under the pretence of a Corporation yet they are all liable in their private several Capacities every one of them must be indicted personally and suffer personally For when they go about to do such a thing 't is out of the business of the Corporation and they must answer for their own particular Offences But 2. I have another Answer to give to it This Objection is to be retorted on the other side That if a
Corporation if its Duration and Existence be so fickle and infirm that every Abuser or Misurer shall forfeit it There will be no need of Officers to be amoved thereby to determine this Corporation at will and Pleasure this Position contains enough to doe all These great consequences attending this Doctrine of Forfeiture are Reasons to prove the Law otherwise Obj. But saith Mr. Attorney if I understand him we do not intend to destroy the Corporation though we say in our Pleading that you have forfeited your old Corporation that you have without any lawfull Authority usurped upon the King and pray in our Replication that de Libertate Privilegio Franchesia illa viz. the being a Corporation abindicantur excludentur These are but words of form we only will lay the King's hands gently upon it and seise it but the Corporation shall not be destroyed or dissolved Resp This is wonderfull and a great Compliment to the City as I take it let us not flatter or deceive one another We are not now in the irregular days in the Records mentioned nor in such fort of Proceedings as in those distracted times Let us not go by blind conjectures out of old Records and bring in unknown ways We are now in a Quo Warranto which as Mr. Attorney truly saith is in the nature of a VVrit of Right and a VVrit of right is the highest VVrit that is in the Law Rep. 9. 28. Inst 2. 282 495. and the Iudgment therein and in this Quo Warranto must be conclusive to all Parties If given against the Defendants it must conclude them for ever and dissolve their Corporation and if given against the King he shall never hereafter bring it in question for any cause precedent Cook 's Entries 527. D. hath a Precedent of it Consideratum est quod the Defendant de in Libertatibus Privilegiis Franchesiis pred in Informatione predict ' specificat ' nullo modo se intromittat sed ab iisdem penitus excludatur The like against Ferrers and the Virginia Company and many others may be found M. 21 Jac. r. 9. The Court cannot alter the Iudgment it will be erroneous if they doe And to talk of a Iudgment of a Seisure what is the meaning of it or such Iudgment Is it final or not final The Court must give a final Iudgment that the Party if he think fit may have his VVrit of Errour The Court will not take any of your old Records to go by if any such to be found that would warrant any other Iudgment Therefore a Seisure without such a Iudgment that determines the Corporation cannot be any way brought to pass as I believe nor can I understand in whom by your Seisure you would have the old Corporation to subsist Transferred from the Persons in whom it now subsists I think is impossible but dissolved by your Iudgment it may be And I hope your Lordship will not be induced by singular unwarrantable Things That a Iudgment should be given that shall neither dissolve the Corporation nor continue it that shall neither be for Plaintiff nor Defendant that shall leave the Corporation neither alive nor dead but in Transitu or Limbo Patrum A Iudgment Quod capiantur or quod Libertates Franchesii predict ' seisiantur in manus Domini Regis VVas there ever any the like VVhat shall be understood by it Shall we be afterwards a Corporation Shall our Magistrate continue Shall we have our Lands Markets Tolls Customs or Franchises or not Or shall we be none and yet not dissolved I must confess I am confounded in these Notions Next As to the Authorities in Law for me 1. I take it to be a great Authority for me that there is no Precedent or Iudgment or Book Case produced or found that ever a Corporation was forfeited It lyes upon the other side to produce it or shew it and no doubt they would if there had béen any but there is none by the Authorities they cite you may easily perceive any sort would not be omitted 2. The Nature of a Corporation as our Books do describe it shews it not forfeitable I take it plain out of the Case of Sutton's Hospital and the other Books there cited Rep. 10. 92. b. 21 E. 4. 72. A Corporation aggregate is Invisible Immortal and rests only in Intendment and Consideration of Law cannot commit Treason or Felony be Out-lawed Excommunicate hath no Soul cannot appear in Person cannot doe Fealty cannot be Imprisoned not subject to Imbecility or Death Br. Corp. 24. 34. They cannot commit any actual Trespass or Disseisin except under their common Seal by command precedent or assent subsequent when our Books say that they are a Body Politick and rest or have their being in Intendment or Consideration of Law thereby is meant that that they are by Law enabled to Act to particular ends and intents answerable to their ends and creations Their ends or creations are only to be subservient to the publick Good and Government and Preservation of the City or Town Incorporate of the Members thereof And if there be any Act done by the Members that are the active part of such Corporation to any other intent end or purpose This not the Act of the Corporation but of the particular Members and they only answerable for it And as to particular Offences and Miscarriages in this Case alleadged it cannot be denied but that the particular Members are answerable for it and if they then according to all Books they ought not to be doubly chargeable or answerable in both Capacities And the Case cited out of Bagg's Case of a Fréeman convict of Perjury and thereupon Disfranchised doth not prove that they shall be punished in a double Capacity for the Corporation is not thereby punished but preserved The being of a Body Politick is only a Capacity and in resemblance of a natural Body and no more forfeitable than a natural Body It is seising forfeiting of Liberties that we meet with that is such as are generally spoken of as Markets Courts Iurisdictions and the like And in the old Records by seising the Liberties of a Corporation is meant the taking from them their Officers and putting in others upon them for a time But a forfeiting dissolving and determining the Body Politick never was yet done or known nor as reasonable to believe ever entred into any mans thoughts till now for I have already shewn that Offences and Miscarriages that were committed by the Corporations in those troublesome Times of E. 1. E. 2. and R. 2. for which their Liberties were seised were not Forfeitures and Determinations of those Corporations they all remain Corporations by Prescription to this day And I have also taken notice that the Acts of Parliament that were made in the succeeding Kings Reigns of H. 4. H. 5. and H. 6. are only Acts of Confirmation to the Cities and Boroughs of the Liberties and Privileges From
that time till within these three years I believe it never entred into any mans thoughts that a Corporation was forfeitable for farther proof whereof divers other Statutes and the whole series of matter is Argument 15 H. 6. cap. 6. The Statute of H. 6. that provides against Abuses and Exactions made by Societies Incorporate by their By-Laws and Ordinances and appoints a Forfeiture of ten Pounds and of their power to make By-Laws To what end should this be if the Corporations themselves were forfeited or thought so to be The Statute of H. 7. recites the Statute of H. 6. 19 H. 7. cap. 7. and the Exactions and Abuses by Fellowships by their By-Laws and Ordinances and Ordinances and appoints a Penalty of forty Pounds upon a they exact Money by an unlawfull and unwarranted By-Law not examined and signed by the Chancellor and Chief Iustice The Statute of the 12 H. 7. cap. 6. sets forth grievous Exactions by the Fellowship of Merchant Adventurers 12 H. 7. cap. 6. by their By-Laws and imposeth a Penalty for the future The Statutes 22 H. 8. 4. 28 H. 8. 5. shew like Exactions by Corporations upon Apprentices by their Ordinances and By-Laws provides Remedy and enacts Penalty If in those times it had béen thought or imagined that a Corporation had been forfeitable every of these Offences forfeited it what need farther Remedy In the Case of Hoddy and Wheehouse of excessive Toll by the Town of Northampton Moor. 474. 39 Eliz. In the Quo Warranto against a Corporation Palmer 77. though the Question was concerning their taking Toll and whether they had forfeit their Market or only their Toll no thought of forfeiting their Corporation ever mentioned So that I think I may conclude with the tumultuous times of E. 1. E. 2. and R. 2. what was then done doth plainly shew the Corporations were not forfeit or dissolved That by all the Acts of Parliament and Proceedings in almost all the Reigns of any length or duration from that time to this very Case the Opinions and Thoughts of men were otherwise as by the Statutes and Transactions appears Not one Opinion Book or Authority produced or to be found The great Concern not only of this great City but of all other Cities Towns and Corporations Ecclesiastical and Temporal all depend upon it And which is more than all the very Government by Law Established will be in great danger of Alteration by it I have argued long and tryed your Lordships patience the weight and length of the Case and rareness of the matter there never having been the like before in any Age will I hope excuse me But besides the whole frame and foundation that the other side have laid being all built upon general undigested Notions as I take it viz. That Abuser and Misuser of Liberties forfeits them without distinguishing betwixt one thing and another That the words Forfeiting and Seising Liberties found in old Records should be Authorities to prove forfeiting Corporations or Beings of the Body Politick though no such thing then or at any time since till very lately ever thought on or imagined It was necessary for me to open and set forth these general notions and to explain and distinguish which I hope I have done that it may appear what the sense of them is how far they agree with Law and Iustice and how far not And if in the doing hereof or the setting out the repugnant or inconsistent Matters or Opinions arising in this Case to maintain this Quo Warranto I have expressed my self in any other manner than became me I humbly beg pardon for it and that it may not reflect upon the Cause nor prejudice it Vpon the whole Matter If this Information brought against the Body Politick for Vsurping to be a Body Politick ought to have been brought against the particular Persons If it be repugnant or contradictory that a Corporation can usurp to be a Corporation that a Body Politick or Being can usurp to be a Body Politick or Being before it had a Being or to be that same Body Politick or Being which it was when it did usurp If forfeiting a Franchise or Liberty or other Estate cannot determine or vest that Franchise or Estate in the King till the Forfeiture appear on Record Then the old Corporation supposed to be forfeited if it were so did notwithstanding and yet doth continue in being there being no Record to determine it and consequently that which is pretended a new one by Vsurpation is impossible If by Seisure into the King's hands as pretended the Continuance of the Corporation be intended How inconsistent is it with Law or Iustice to continue any thing in the King that is wrongfully usurp'd and the Parties to be punished fined and committed for usurping If Mr. Attorney's Replication taking issue upon our Prescription to be a Corporation and going over and alleadging several distinct Causes of Forfeitures cannot by Law be maintained and in the Example doth introduce a way to bring all mens Estates subject to Mr. Attorneys will and pleasure For let any mans Right be as good as can be it will be scarce possible to defend it if such Pleadings as in his Replication be allowable by Law Then be the matter in Law as much against us as possible yet Mr. Attorney can have no Iudgment for him upon this Information Next Supposing the Information all good in Law Yet If the Iudgments Records and Authority that have been cited by them for Seisures do plainly shew that Seisures and Forfeitures are very different in their Natures That the Corporations all continued notwithstanding the Seisures And the Seisure was only the Kings putting in Mayors and Officers to act in them instead of the others Elected or Constituted by the Corporation and they remain Corporations by Prescription to this day and never were forfeited dissolved or determined by such Seisures If the General Authorities in Books that the Misusing or Abusing a Franchise be truly applicable to Franchises that are Estates and Interests grantable or conveyable from man to man and never were intended of such a thing as is rather a Capacity or Being than a Franchise If there be no Case or Precedent or Opinion to be found for it If of the contrary the particular Cases cited prove that where the Corporations have by Miscarriages forfeited particular Franchises they do not forfeit their Corporations If there be scarce any Corporation in England that have not at some time or other done something they should not or omitted to do something they should and thereby forfeited their Corporation and consequently all are Vsurpers and their Corporate Acts since done all void If the Corporation here hath done nothing but that the Mayor Aldermen and Common Council are only Delegates Deputies or Ministers of the Corporation for particular purposes If Servants Deputies or Delegates doe that which they have no Authority to doe they must answer for it in their own
Regrant 2. That it is necessary that it should be dissolvable by Surrender perhaps a Town may come to decay and not be able to defray the charge that the Support and Maintainance of the Corporation may require for every one sees that Ornaments and Officers must be and these cannot be bought or maintained without Estates and poor men are not able without ruine to their Families to bear the Magistracies and Offices And therefore necessary there should be a Power in them to surrender 3. That the Books and Cases in Law do prove That a Corporation or Body Politick may surrender itself and thereby be dissolved Dy. 273. There the Case is thus stated The Deanry of the Cathedral Church of Wells was dissolved by the Surrender of Fitz-Williams tempore H. 8. And the Prebend of Currey in the same Church was also surrendered by Goodman Prebendary there 1 E. 6. And in this Year the Dissolution of the Deanry was confirmed and the Deanry extinct by Act of Parliament and a new Dean erected and created to which new Deanry the Lands and Possessions of the old were annext amongst other Possessions and the Nomination of the new Dean and Successors given by that Act to the King and that he should have the same Power in Choro Capitulo as the old Dean had saving to all Strangers other than the Bishop of Bath and Wells the old Dean and the old Prebendary and their Successors In this case 't is admitted and taken for granted that the Deanry and also the Prebend were surrendered Dy. 282. There the Archbishop of Dublin had two Chapters viz. the Dean and Chapter of St. Patrick and the Dean and Chapter of Christ-Church and both these used to confirm the Bishops Leases The Dean and Chapter of St. Patrick by Deed under their common Seal gave and surrendered all their Church Houses Lands and Possessions to the King without license or consent of their Bishop being their Ordinary and Patron of the most part of the Prebends After this Surrender their Church was used as the Common Hall for the four Courts in the Term there and a Lease is made by the Archbishop confirmed by the Dean and Chapter of Christ-Church only and whether the Successor of the Archbishop were bound by this Lease was the Question The Iudges in Ireland were divided in Opinion and thereupon the Case sent over for the Opinion of the Iudges here and the Opinions and Resolutions of five Iustices viz. Catlyn Dyer Saunders Welsh and Carus certified to the Lord Deputy of Ireland under their Hands were quod non fuit aliud Capitulum in esse tempore confirmationis Dimission ' pred' nisi Christ-Church tantum quia Corporatio Capitulum Sancti Patrick fuit per donum sursum reddition ' Decani Capituli pred' legitime dissolutum absque consensu Archiepiscopi Jones 168. The Opinion of Iustice Jones there That a Corporation may be dissolved by an Act proper viz. by Resignation On the other side it hath been answered 1. Admitting it to be true that to be a Body Politick is a Liberty Privilege and Franchise created by Charter which is the King 's Deed. Yet it doth not follow that it may be surrendered by Deed. For the Charters that incorporate the Citizens or Inhabitants of such a City Town or Place and make them a Body capable of taking and having Lands Goods or Chattels to sue and to be sued and to have a Common Seal and to act according to the Powers Ends and Purposes in their Charters contained only give them a capacity for those Ends. The Liberty Privilege and Franchise that they have goes no farther They cannot transfer this Privilege or Franchise to any other Persons These are only personal Franchises or Capacities fixed in the Persons in whom they are granted Like to Patents of Denization granted to Aliens whereby a capacity is granted to have hold and act as a natural born Subject Grants of Enfranchising a Villain These are Grants that cannot be surrendered These are Franchises and Capacities like this These are Exceptions to the General Rule Unumquodque dissolvitur eodem modo c. So also of Fairs Markets Courts c. They are created by Charter they may be granted over or granted to the King but if they be regranted to the King they are not extinct but remain in the King Abbot of Strata Marcell's Case Rep. 9. 25. b shews the difference thus When the King grants Franchises that were in the Crown before the Grant as Bona Felonium Deodands Wreck c. and these come again to the Crown they are merged in the Crown and the King is seised of them jure Coronae But when a Privilege Liberty Franchise or Iurisdiction was at first erected or ordained by the King there by the coming of it again to the Crown they are not extinct and instanceth in Fairs Markets Hundreds Léets similia They are not dissolv'd or gone for thereby Subjects would be prejudiced For if the Court should be so granted and thereby dissolved the Subjects Iudgments and Suits in those Courts would all be lost These are other Exceptions to that general Rule Unumquodque c. 2. That the Reason given for the Surrenders of Corporations from the poverty that may happen for the conveniency of some Corporation is answerable for that doth not very frequently happen But when it doth happen if they are weary of it they may let it alone and not act or choose Officers it will cease of it self néed not be at the charge or trouble of a Surrender But on the other side the Inconveniences are very great and are some of them before specified The Establishment of the Church is all in Corporations Bishops Deans Chapters Prebends Parsons Vicars if these be surrenderable as by the Cases cited without consent of Bishops a Prebend is as to his being but as a Parson or a Vicar The Vniversities Colleges Hospitals all the Cities considerable Towns Trades and Mysteries are Corporations if these be surrenderable it affects our old Government 3. As for the Books and Authorities Dy. 273. the Dissolution of the Corporation thereby surrendred is only mention'd in putting the Case it is not debated nor was it material in the Case For the Act of Parliament there settled the new Dean and Chapter and the Prebendary and the matter of the Case ariseth upon the Deprivation of Dean Goodman and the appeal and reversal of that Sentence there is not as much as any Opinion in the Case concerning the Dissolution or Surrender whether good or bad But what may reasonably be inferr'd from that Case is That the Surrender and Dissolution thereby was not good in Law for if it had what needed the having an Act of Parliament to secure against the old Dean and Prebendary which appears in the Case was had And Co. Rep. 3. 75. b. in the Case of the Dean and Chapter of Norwich This Case of Dyer is cited and there expresly