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
a law-Law-book to back me I remember that my Lord Hobart says That Zeal and Indignation are fervent Passions The City of London had great Indignation against the Papists for this Conspiracy against the King and Kingdom and the Religion established by Law There was no disaffection in the City at this time when this Petition was made sure and I wonder that any man should say that knows London and was acquainted with it then and looks upon this Petition which passed nemine contradicente that they had such an intention as is insinuated And pray let him read the Names of the worthy Aldermen that then sat upon the Bench and the other Names of the Common Council-men then present and then let him say if without Reflection the King have more loyal Subjects in the City of London than these men were And do you think if there had béen in it any Sedition or any of those ill qualities that make up the ill Adverbs which are joyned to it in the Replication not one of all those loyally-dispos'd men would have spoken against it But alas all of it passed nemine contradicente My Lord I say that if the matter of it be justifiable as I think it is then all these words will signifie nothing if there were never so many more of them And the presenting and carrying of it to the King that is no Offence that is not so much as pretended to be one And my Lord I think it a very harsh Translation of the word into Latin when the Petition says That the Parliaments Procéedings or the publick Iustice received an interruption to put that word of Obstructionem in truly I think a better word might have béen found to express the soft expression in the Petition and they néed not have put that hard violent word Obstructionem when to make English of it they translated it Interruption But my Lord they do admit I say That the making and presenting of it to the King is not the Offence so much as the publishing of it by which it is exposed to many others besides Now to excuse that the Answer we give is this and 't is that which will carry a very reasonable ground of Iustification in it Certain Citizens that were private Men had petitioned the Common Council and thereby they were importuned to make known the desires of the City to the King and it was reasonable to make known to those Citizens what the Common Council had done to prevent false Rumours which we knew were rife enough in those days and to shew that there was nothing ill in it we did Print it And 't is also all driving at the Common Interest at the Kings Safety the Preservation of the Church and the Government established All this they did desire might be known to these Citizens and all others that enquired about it and therefore they Printed it to evidence that there was nothing of ill intended in it And I do wonder I must confess that this Objection of the publishing of this Petition should be so much insisted upon for they say That the Mayor Commonalty and Citizens of the City of London did it and say not any thing of the Common Council that they did print it Now they that did vote it knew it without printing and 't is alledged in the Pleadings and confessed by the Demurrer That the Mayor Commonalty and Citizens of London that is the Corporation consists of above 50000 Men which cannot well be intended otherwise Why then here is a Petition that is agréed to be well enough lodged as to the Persons that voted it it being the liberty of the Subject to petition and if this had béen only presented to the King though it had béen by those 50000 men nay if it had béen by 10000 men who had béen the Corporation It had béen well enough so it had not béen printed but only kept private to themselves Why then 't is very strange that what is known to all London so great a part of the Kingdom should be lawful but it should be heinously unlawful to send the news of it further It went further than the City of London and therefore 't is such an Offence as shall be a Forfeiture of the Corporation My Lord there is the Case of Lake and King the Petition to the Parliament was scandalous in it self yet it stood protected being presented to the Parliament and it was lawful to print it provided it were delivered to a Committée of Parliament or only to those that were Members though 't is said there that the printing of it is a great publishing for the Composers Correctors and other Persons that are concerned in the Press read every Letter of it But it was answered That Printing is but a more expeditious way of Writing and if he had employed 20 Clerks it had béen a greater publishing than thrée or four Printers Possibly the Printers might not read it or not be able to read it well or not all of them read it at that time Now here my Lord Sure it was lawful to acquaint the Citizens what they had done if you take it to be the Act of the Common Council and the Common Council to be the Representative of the City It was always agreed by the House of Commons that any Member might send the Votes to those that sent them thither and whom they represented they have blamed indeed men for sending the debates but never for communicating the Votes And what they may do by Writing that they may do by Printing Why then might not the Citizens of London who by Custom choose those Common Council men well desire to know and might well know what they had done and then what they might do by Writing they might by Printing for that is but another way though a more suitable and compendious way of exhibiting any thing that you would have go to many And if it be lawful to impart it to all the City and all the City does know it though it does go further 't is no matter for what is known to London may very well be known to all the Nation besides without Offence if it did go further Besides it shall never be intended it was published further or that any others knew of it for 't is said to be published in the Parish of St. Michael Bassishaw in the Ward of Bassishaw and that is in London to the Citizens of London and so they only talked of it amongst themselves Besides the main thing I go upon which is if there be no ill in the thing it self the ea intentione can make no crime by a bare affirmation which we deny and if it might be well said or done it is lawful to Print it and the Publication is no Offence neither My Lord The next point I come to is this That a Corporation cannot possibly commit a Capital Crime or any other Crime against the Peace And I shall offer this Dilemma Either it
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
Charter Therefore upon the whole matter I do humbly pray your Iudgment for the King that they may be outed of their Franchise of being a Corporation Sir George Treby Recorder for the City THE first thing that I shall I hope maintain is I. That a Corporation or the Being of a Body Politique it not forfeitable The Nature of a Corporation in its Existence Powers and Actions is to be considered A Body Politick or Corporation is created by the Policy of Man 1 Inst 2. The Persons Incorporate are created a Body and are of capacity to take or grant do or act according to the Powers and Authorities in their Creations given them and to no other purpose only a Capacity and not properly a Franchise 1 Inst 250. Brook therefore in his Title of Corporation makes his Title Corporation or Capacity 2 Bulstrode 233. The Body is invisible therefore cannot appear in Person Dissolution of a Corporation there may be As where the Persons incorporated all dye Corporation of necessity is thereby dissolv'd 1 Inst 13. b. Rolls Ab. 1. 514. But no Book or Case mentions Dissolution by Forfeiture In the time of H. 8. when the Corporation of Monks Nuns and other Religious Houses were dissolv'd Had it not béen a very easie way if this Doctrin of dissolving by Forfeiture would have done it thereby to have effected the Kings purpose It was but to have issued out a Commission and thereby find but one illegal Act or Miscarriage done by the Corporation and thereby the Corporation dissolved But in Henry the Eighth's time or afterwards the Surrenders made by Corporations was of their Lands not of their Corporations or Bodies Politique as appears 2 Anderson 120. Dean and Chapter de Norwich's Case 3 Rep. 74. For tho they surrendred their Church and all their Possessions and Franchises yet the Corporation remain'd not thereby dissolv'd Fullcher and Heyward Jones 198. Palm 491. Davyes Rep. 1. b. And Encounter le Opin Dy. 273. 282. And therefore to this time viz. 3 Car. I. when these Cases were adjudged and argued the Law was taken to be that a Corporation could not be dissolved by Surrender And the Statute 27 H. 8. 31 H. 8. 34 H. 8. for dissolving the Monasteries none of them mention Surrender of the Corporations And the the word Forfeiture be in those Statutes thereby is not meant forfeiture of Corporation but forfeiture of the Lands of the Abbots by Attainder viz. Abbots of Glassenbury Colchester and others attabited upon the matter of the Kings Supremacy And so it appears Rolls 2 Rep. 101. But if it should be admitted That a Corporation may be surrendred and thereby extinct and destroyed it is no consequence that they may be forfeited For there are many things surrenderable that are not forfeitable As Annuities granted pro Concilio impenso impendendo which are persnal Interests and so fixed to the Person as not transferrable by Grant Forfeiture or otherwise Much more then of a Corporation which is far from being grantable or forfeitable it is the very Capacity or Existence and inseparable in its Nature from the Persons incorporated Worseling Manings Case Lane 58. Rolls Abr. 1. 195. Alien obtains Letters Patents of Grant of Denization Proviso That the Grantée do his Legal Homage and be obedient to the Laws of the Kingdom He never doth his Homage nor is obedient He shall not hereby forfeit or lose his Denization or Capacity that he hath granted him by his Patent II. That this Information now brought is insufficient and no Judgment against the Corporation can be given upon it It cannot be maintained against the Corporation as now brought but should have béen against the particular Persons Rex vers Cusack Rolls 2 Rep. 113. 125. Palm 1. In a Case of great Authority and upon a Writ of Error out of Ireland upon a Iudgment in a Quo Warranto against the Corporation of Dublin a Quo Warranto was brought against Cusack and others Aldermen of Dublin who pretended to have Priviledges and a Guild and to be a Corporation and this I presume is for their being a Corporation for there is a Cur ' advisare vult upon that and so 't is not put in the Case but 't is also brought for several Liberties that they did pretend to claim that they only and no others should sell and buy all Merchandizes there and no body should buy of another or sell to another but to them that all Merchandize should be brought to their Common Hall there c. Now as to those Liberties they are forejudged that the Liberties should be seized and they outed As to their claiming the Corporation there is a Cur ' advisare vult so the Case is in Palmer but in the other Book Rolls 115. there 't is agreed If a Quo Warranto be brought to dissolve a Corporation it ought to be brought against particular Persons for the Writ supposes that they are not a Corporation and 't is to falsifie the Supposal of the Writ to name them as a Corporation Now here this Writ supposes them to be a Corporation or else they could not be Defendants and then it comes and falsifies that supposal by assigning that they are no Corporation nor ever were or if they had they have forfeited it and so all the foundation that this Writ stands upon is destroyed My Lord in this Case of Cusack I am assisted further with a Report of it in my Lord Chief Iustice Hale's Book a Report of very great Authority with all Men of our Profession and there he says expresly If a Quo Warranto be brought for the Vsurping of a Corporation it must be brought against particular Persons because it goes in disaffirmance of the Corporation and Iudgment shall be given that they be outed of the Corporation but if it be for Liberties that are claimed by a Corporation it must be brought against them as a Corporation 'T is in my Lord Hales Common Place Book which is in Lincolns-Inn Library fo 168. placito 7. My Lord this is our very case if you go about to say our Corporation is forfeited or must be dissolved nay more you say it has either never béen or by forfeiture it is lost so long ago then here is nothing can come before the Court This Information is brought in dis-affirmance of the being of the Corporation and therefore there must be set up some body capable of being a Defendant in such a Suit and that is particular Persons which ought to have béen named as was in that Case of Cusack For as the Iudgment of Ouster of particular Liberties given against particular Persons will not bind the Body of the Corporation so the Iudgment of not being a Corporation will not be good to charge or oblige particular Persons unless it be given against particular Persons that usurp the Corporation The Individual Fréemen of London cannot possibly be bound by this Iudgment for they are not here before you nor were they
9. 21 E. 4. 13. Co. 10 Rep. Sutton's Hospital Case That Corporations have béen Dissolv'd 1 Inst 13. 2 Inst 431 432. Co. 3 Rep. Dean and Chapt. de Norwich's Case That Corporations may be surrendred is plain from the Cases of Heyward and Fulcher Jones Palm 506. That the Causes for which Franchises may be seized are the same for which they are forfeit as for Non-user or Abuser And therefore Forfeiture and Seizure alike For Contempt of the King the Court may seize the Liberties of a Town 2 E. 4. 5. Case de Bayliffs de Reading 15 E. 4. 6. Seizure of Liberties for not Appearance and if not replevyed the same Eyre they are forfeit This shews that the same default that gives Seizure gives Forfeiture A Seizure by award of a Court before Iudgment is but quousque and the Court may restore but a Seizure after Iudgment is final and the Court then cannot grant Restitution 5 E. 4. 7. Where the Liberty is usurp'd and gain'd by Tort there the Iudgment must be an Ouster But otherwise where the Liberty was once of right but forfeited by Abuser there the King shall have it Case de New Malton Iudgment there was only a Seizure Case de Cusack Iudgment fuit penitus excludatur because usurp'd and no title By the Seizure the King is in the possession Sir G. Reynel's Case Co. Rep. And the Corporation cannot act during such Seizure for they have not their Mayor or Officers by which they can act and that is the reason they Petition to be restored in E. 1. ad pristinum Statum Rolls Abridgment Prerog 204. 2 E. 4. 27. 1 Institutes 253. 15 H. 3. Rot. Cl. Memb. 2. Village of Hereford seized into the Kings hands quousque c. By the Seizure the Corporation est Civiliter mortua and cannot act Corporations are instituted for a particular end viz. For good Government and Order They are as an Office erected and the Actors Officers to that purpose All Offices have a Condition in Law incident to them to be forfeited for abuser or mal-user Co. Rep. 8. 44. Co. Rep. 9. Earl of Shrewsburies Case And by the same Law Corporations forfeit for mal-user or abuser No difference betwixt Corporations aggregate or sole and the one forfeit for the same mis-user or abuser as the other And as to the Mischiefs that will ensue if the Law otherwise It is no answer That the persons offending may be punished in their private Capacity For if they still remain a Corporation they may Assemble Consult raise Mony and Men to the hazard and danger of the King and his Government and still continue a form'd Body too much thereby advantaged to serve such purpose Presidents and Cases of Forfeiture Case of Sandwich Pasch 3. E. 1. Rot. 55. upon an Information the Iudgment was Consideratum fuit per Dominum Regem Consilium Domini Regis in Parliamento quod Majoritas Libertas de Sandwich capiatur in Manus Regis Villa de Cambridge Inst 4. 428. M. 8 R. 2. Plea to the Iurisdiction rejected and Iudgment that their Liberties shall be seized Ryly placita Parliamenti 277. Iudgment that the Liberties of Winchester shall be seized quousque and restored again Mich. 18 E. 3. Rot. 162. in B. R. Iudgment against Ipswich that the Custody thereof shall be seized 2 Rolls Prerog 204. divers Seizures 1 Crook 252. it is there cited that the Liberties of the Town of Norwich were seized 27 H. 6. for not suppressing a riotous Assembly there F. Avowry 129. Iter of Lancaster Quo Warranto against Northampton Iudgment of Seizure quousque c. for mis-pleading 2 H. 7. fol. 11. Mich. 15 Car. 1. B. R. Quo Warranto against the Town of Berkhamsted but no Iudgment entred Usual Proceedings in Eyre to Seize Fine and Restore Rast Entries 540. Seizure of a Leet for not having a Tumbrell And all the several Cases and the very Acts cited that prove Seizures of a Corporation prove also that they may forfeit V. That the Acts of the Common Council are the Acts of the Corporation Corporations have by their Charters Prescription or Custom Common Councils to assemble advise and consent they are as Delegates for the rest of the Body they are the Active Corporation they make By-laws and dispose of the Lands and Concerns of the Corporation in them the Corporation acts 9 H. 6. 3. 5 H. 7. 26. 48 E. 3. 17. 1 Cr. 540. Warren's Case Rolls 2 A br 456. Tit. Restitution Obiect That the Stat. 1 E. 3. insisted on by the other side whereby they would have it that the Liberties of the City should not be seized for any the Miscarriage of the Officers Resp In answere to this Objection I. It is no Statute but only a Charter and that Charter not granted to the Mayor Aldermen and Commonalty but only Civibus London II. That it extends not to this Case for by the words Officers and Ministers the Mayor Sheriffs and Aldermen being ordinary Officers of the City by whom the Kings Writs and Precepts are executed are the Persons intended But this extends not to the Mayor Aldermen and Common Council which are the visible and active Corporation Stat. 38. E. 3. c. 10. explaineth this to be so for that is express Mayor Aldermen and Sheriffs and that the Liberties of the City shall not be seized for their miscarriage till their third Default But the Stat. 1 H. 4. c. 15. repeals the former Stat. of 28 E. 3. also the Stat. 1 E. 3. if it were any puts the City of London into the same condition with other Cities VI. That the Facts and Crimes charged in the Replication are Forfeitures They are Offences of a high Nature To oppress the Subject by raising Mony for their own private Gain is quite contrary to the ends of their being a Corporation which is the good Government and Preservation of the Subject but to make use of this Power to oppress and raise Mony for private benefit is a great Abuse of their Authority and Franchase And they cannot excuse themselves as for a Toll For Toll cannot be claimed except it be a Sum certain it must be some little petit Sum claimed for Toll These Sums are too great and unreasonable to be claimed for Toll The Statute of H. 7. that gives a Forfeiture of 40 l. for using an unlawful By-law did not alter the Law that was before It gives a new and further Penalty but takes not away the old And as to the Custom alledged for assertaining Tolls Duties or Sums reasonable to be paid such Custom is unreasonable for the Vncertainty and the Nature of it VI. The Petition is malicious and apparently Seditious stiring up the People to a drinke of the King and his Government Stat 3 E. 6. c. 1. provides against derogating from or depraving the Book of Common Prayer 1 Cr. 223. Sir William Marsham versus Budges against Standalizing a Iustice of Peace Much more is it to deprave Libel
or Scandal the King or his Government And for these great Crimes committed by the City I pray Iudgement against them Mr. Pollexfen upon another day for the City his Argument IN this Case when I consider the greatness and consequence of it That it affects the King the Parliament the Laws the very Government under which we have lived this great City of London and all other Corporations and People of England and their Posterities for ever I cannot but be troubled that I should be the Man to whose Lot it should fall to argue it but that which comforts me is that your Lordship and the Court upon whom the Iudgment of this great Case depends will help out my Defects and according to what is required in the great Places you bear take care and provide that by your Iudgment the ancient Government and Laws of this Kingdom receive no Damage or Alteration The King's Counsel have on their side only some general words out of old Records of Forfeitures and Seisures of Liberties which are of uncertain and doubtfull sense but there is not on their side produced any one Precedent Iudgment or Opinion to maintain the point in question viz. That a Corporation or Body Politick ever was determined or dissolved or taken away for a Forfeiture No not in the maddest of Times in the Times of Edward the 2d and Richard the 2d when the Tumults and Disorders were so great that they not only seized and took away Liberties and Franchises but the Lives of Princes Nobles Iudges Lawyers and all that stood in their way In those times though they have hunted and searched with all diligence not one instance of a Corporation taken away or dissolved by a Forfeiture is cited So that from hence I hope I may safely conclude that I argue in this case for the old and known Laws as they have been ever practised through all Ages and against that which never hath been practized or known which is a great Encouragement to me The Pleadings being very long I shall only repeat so much of them as I use when I come in order to speak of them I. The first thing proper to be spoken to is the Information it self and therein I make this Question Whether as to that part thereof that chargeth the Corporation with usurping upon themselves the being of a Corporation whether that be properly brought against the Body Politick as this is or ought to have been brought against the particular Persons I do agree that as to the other things mentioned in the Information the having Sheriffs Iustices c. The Information is properly brought against the Corporation And I do also agree that it may be good as to those things though bad and insufficient as to the charging the Corporation with Vsurpation of their Being without lawfull Warrant or Authority And that I may come singly to this Question I do put out all the other Franchises in the Information and take only what concerns this point and then the Information as to this point chargeth That the Mayor Commonalty and Citizens of London by the space of a Month last past before the Information did use and claim to have and use without any Warrant or Regal Concession within the City of London the Liberty and Franchise following viz. to be a Body Politick Re Facto Nomine by name of Mayor and Commonalty and Citizens and by that Name to plead and be impleaded which Liberty Privilege and Franchise the same Mayor Commonalty and Citizens upon the King by the time aforesaid have and yet do usurp This is the Substance of the Information as to this point and Whether this Information thus brought as to this matter be sufficient in the Law upon which a Judgment can be given or ought to have been brought against particular Persons is the Question I conceive it ought to have been brought against particular Persons and is insufficient as it is and that no Iudgment can be given upon it supposing the Defendants had demurred or pleaded nothing to it To make out the Insufficiencies I desire to consider what it imports 1. The very bringing the Writ and exhibiting the Information against the Corporation imports and admits the Mayor Commonalty and Citizens to be a Body Politick capable to be sued and impleaded respondere responderi otherwise there is no Defendant no Person in Court against whom the Suit is brought It is not enough that the Person sued be a Person by supposition or a pretended Person but none in reality If a Writ or Information be brought against a Baron and Feme this must admit that they are Baron and Feme really and truly and if there be any thing after in the Writ or Information that shews that they are not truly and really Baron and Feme but that they do wrongfully and unduly take upon them to be Baron and Feme when in truth they are not this would be contrariant and repugnant and abate the Writ or Information The like is supposed by the bringing the Writ or Information against the Body Politick it supposeth and affirmeth them really and truly to be such and the subsequent Affirmation that they usurped so to be and are not so really is contrariant and repugnant 2. When in the Information it is alleadged that the ayor Commonalty and Citizens the Liberty Privilege and Franchise of being a Body Politick Re Facto Nomine and to be sued and impleaded upon the King have and yet do usurp To usurp or doe any Act of Necessity imports and admits a precedent existence of the Persons that doth usurp or do the Act to the Act done Particular Persons may usurp and take upon themselves that which they have no right unto The Persons that doe the Act did before exist and had a Being And when a Corporation is said to usurp it of necessity must be supposed to have a precedent Being The sense of Vsurpation in a Quo Warranto is the Subject's taking upon him Franchises without Warrant My Lord Coke saith Inst 1.277 b. That Usurpation in the Common Law hath two significations 1. The one when a Stranger presents to a Benefice and his Clerk instituted and inducted he gains the Advowson by Usurpation 2. The other when any Subject without lawfull Warrant doth use any Royal Franchises he is said then to usurp upon the King So that an Vsurpation supposeth of necessity a Subject or a Person precedently in esso that useth the Franchise or that doth usurp That which is not in esse that hath no existence cannot use any Franchise cannot usurp The very alleadging that they usurp doth admit of necessity an Existence precedent in the Corporation such as can usurp or Act and therefore this Information is inconsistent with it self 3. But another reason to prove that it ought to be against particular Persons and cannot be against the Body Politick is drawn from the Iudgment that must be given upon this Information if