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
these Counsels or the King and his Parliament are interrupted this is not done To make such an high Crime of this I do not understand I would not be thought to speak any thing to justifie that which is really a Crime but this is that I say 'T is not in Law unlawful for us to petition the King or address to him But my Lord to take off the edge of this business I shall beg leave to read to your Lordship a Spéech of the Kings made the 6th of March following and therein there are these Words The further Prosecution of the Plot. My Lord let any man read and spell and see how in substance the Words in our Petition differ from the Words of the King making those Laws necessary for the security of himself and the Kingdom and this spoken the 6th of March when this very Petition now complained of was presented in January or February before and there was no Parliament between No man will say that there were Laws sufficient for the security of the King and Kingdom when the King himself speaks of the necessity of making such ones So then those Laws that were preparing received an interruption The Lords were not tryed is not that an interruption of Iustice since they could be tryed no where else as must be granted and the King recommends it to them as not done but necessary to be done So the King said before and so 't is implyed here There is no such thing said in the Petition That the King did interrupt Justice and the proceedings of the Parliament 'T is an Inference and a Consequence made by Wit and Art not that the King did interrupt or intend to interrupt Iustice but it says by the Prorogation of the Parliament the publick Justice received an Interruption My Lord Suppose at that time there had béen a Pestilence here and the King had been as much resolved to meet his two Houses as they him but by reason of the Pestilence he were necessitated and forced to make a Prorogation Then there comes such a Petition from the City and says That by reason of this Prorogation those Bills that were depending did not pass and the publick Iustice received an Interruption What is the Offence of this 'T is all true If there be Bills depending and Impeachments that can no other where be tryed they do receive interruption by a Prorogation Can any man say this is false The charge in the Replication is That we did falsly and maliciously say what that which is true and that which the King had said before and that which the Lords and Commons said after him That till those things were done they were not safe and those things as yet were not done My Lord There is this further in it the Petition is set forth in haec verba and therefore I may take any thing out of it to explain it and restore it to it self for this indeed is a very restrained construction of the Petition It says when this interruption by the Prorogation was receiv'd That the King for urgent causes and very good reasons did Prorogue the Parliament It is his Prerogative to do so and God forbid but he should have it I think without doubt we should be more at a loss for want of that Prerogative than we can by the use of it 't is mine and I believe every good mans Opinion that that Prerogative is very necessary and profitable for us all but it is the consequence of it that this interruption of Iustice is received nay we are so far from saying that the King did interrupt Iustice or intending it that we say we do hope the Kings gracious intentions were only to make way for the better concurrence of his Majesty and his Parliament The King does for great causes and best known to himself who has the Prerogative Prorogue the Parliament whereby as a meer consequence not as the Kings intention the publick Justice is interrupted Nay this we affirm was with a good intention in the King that he might the better be inabled to concur with his Parliament as is set forth in the Petition Can there be any thing more properly said 'T is the greatest justification of the Prorogation that can be The King has prorogued the Parliament What to do Why Iustice hath in view received an Interruption but not in the intention of the King We know what the meaning of it is and so we set forth in our very Petition it is to gain time that he may the better concur with his Parliament 'T is a great commendation of the Kings purpose instead of charging him with Injustice that he did resolve to concur with his Parliament for such ends and accordingly did Prorogue the Parliament Now the Attorney General hath put in that it was ea Intentione there is the sting of the business to put in those words to make that which we may lawfully speak of it self to be an Offence but truly that signifies just nothing It can never hurt a thing that is true it has great Authority in it if it be applyed to a thing that is unlawful but if in substance it be true and the thing it self justifiable those Words make nothing in the Case and I think I néed not argue that point but refer my self to the great Case that was in Westminster-Hall and that is the Reversal of the Iudgment given in this Court against my Lord Hollis which was a Reversal in Parliament and is Printed and the last Impression of Mr. Iustice Coke's Reports by order of Parliament and there they explode all the notion of ea intentione and this business A man speaks words that he might speak in Parliament though I know not whether he might or no but the great thing is If words that in themselves are tollerable to be spoken be spoken you shall not come and say they were spoken with an ill intention though as I shall shew by and by this hath a kind of Fatality in it and that is this That it is done with an ill mind by a Corporation that hath no mind at all Mr. Attorney General Just now you said it had a mind and Reason was its mind Mr. Recorder I said as my Lord Hobart says that a By-law to it is a mind as reason is to a man but it hath no moral mind My Lord then I say the Citizens of London were indéed at that time under great consternation by reason of the Conspiracies that had béen discovered in Parliament and in the Courts of Iustice and it had béen declared by the late Lord Chancellor at the Tryal of the Lord Stafford which your Lordship may very well remember That London was burnt by the Papists and therefore 't was no wonder that they were desirous that themselves and the Kingdom should be put into great security against those Enemies This my Lord I confess is a tender point and I would not speak a word in 't without
be judged by the discretion of the Iustices upon the true state of the Case before them Now this Case must have all its Circumstances stated and agréed by Demurrer or found by Verdict And so is 4 Rep. 27. b. and Hobart 135. and 174. as in the Case of Copyholders Fines the quality and yearly value of the Land must appear or else there cannot be Iudgment whether it be reasonable or no. In the 13th Report fol. 3. Croke Car. 196. where the Question was Whether the Lord of a Mannor might assess two years and an half value of Copyhold Lands according to the Rack-Rents for a Fine upon Surrender and Admittance and upon non-payment to enter for the Forfeiture as suppose Land it be rented at 20 l. a year here is 50 l. demanded for admittance there it appeared judicially that it was unreasonable and so it was adjudged because the value was certain But who can here say whether the providing of Markets cost 5 s. or 500 l. it is that estimable Perhaps we have over-bought all these Tolls that they call unreasonable we over it to be reasonable the Demurrer agrees it to be so and you must intend it to be so unless the contrary be set forth clearly in its circumstances for he that will have a Forfeiture must shew the circumstances to make it out My Lord Another thing is this to answer Mr. Solicitor in that point I say an unreasonable By-law is no reasonable cause or colour for forfeiting a Corporation admitting it to be unreasonable though I grant it not My Lord Hobart in Norris Staps Case Hob. 211. says that though power to make Laws is given by special Clauses in all Incorporations yet it is needless for that is included by Law in the very Act of Incorporating For as reason is given for the natural Body for the governing of it so Bodies Corporate must have Laws as a Politick Reason to govern them Reason is a faculty in them as 't is in a man and may err and therefore says he if the King do grant Letters Patents of Incorporation to persons and he doth thereby make Ordinances and By-laws himself they are subject to the same construction and rule of Law as if they were made afterwards by the Corporation For the King can no more make an unreasonable By-law than a Corporation but if the King do shall that affect the Corporation and make the Corporation void by way of repugnancy or an instantaneous breach of Condition no it shall not And therefore as they may receive unreasonable Rules from the King without defeating of the Corporation or having their being thereby vacated so they may make unreasonable By-laws without the same danger of destroying the Corporation The cases are very many wherein By-laws have been judged unreasonable the truth of it is there is a great misfortune in the perusing and making of those By-laws by some means or other there is something discerned that still proves an Exception to it as we see in the Case of the Carmen and the Woodmongers their By-law was made and re-made and corrected again and again before it would be made to hold Water in this Court. So in the Taylors of Ipswich's Case and Bradnox's Case which was here lately All these have béen adjudged void but what then In all these Cases it was never said hereby your Corporation is destroyed you have erred in making a By-law and therefore you have lost your being of a Corporation Besides if there were but a colour for it and it were any thing tollerable surely that were enough to make us excusable in such a matter If it has béen received as we agrée it has the Officers are Trespassers every individual of them are suable and any man may bring his Action against them But they that come to the Market think not fit to complain if they did not like the Market they would not come at all and if they did not like the Payment they would not come neither and there is no levying of any thing unless they do come Now my Lord I will admit the levying and the receiving and yet I say this is no forfeiture for here is a mistake of Law or a mistake of Fact by colour whereof Mony is received This by no means will work a Forfeiture of a Corporation for at that rate every Penalty that has béen levyed by a By-law will be adjudged a levying of Mony without Law and so forfeit the Corporation which has not béen done in other cases of By-laws and those much worse than this because most of those By-laws were made for levying Mony upon Men for exercising a Trade and 't is much more to say that you should levy such Sums of Mony upon every stroke of honest industry whereby a Man gets his Livelyhood than that you shall pay so much for your accomodation in my ground for the better vending your Goods This hath béen held good in some cases but in others it hath béen held naught and this hath all béen received and levyed to the use of the City too and so 't is a levying of mony whereby they have a great advantage nay 't is worse still because it is imposed by force and recovered by force but here 't is a voluntary Penalty no force no compulsion only the being removed from their Standings no other Penalty no Imprisonment or the like but if you do not like the conditions you may be gone I desire you to walk out of this Market if you don 't like the price of the Provisions and to be gone from the Stall if you don 't like the price of the Standing We were not bound to provide these Stalls for you but having provided them if you don 't like them you may leave them but here is other cases the man is imprisoned and sued by Action for the Penalty here at any time if you don 't like your may be gone My Lord I am very confident that if this be so that all monies levyed by a Corporation without Law are forfeitures or where the Law is mistaken then I dare boldly affirm that we never were a Corporation two months since London was London but by vertue of some old sléeping By-law or other that has béen set on foot monies have béen levyed which perhaps will not be in strictness allowed good And if all these had béen Forfeitures we had béen in a strange condition not one month or two should pass over us but we had forfeited it and never can there be perhaps a month to the end of the World but we should still be forfeiting And what is said of us may be said of any other Corporation that happens to make By-laws And I am sure in former times there were monies levyed with a witness I mean not the late times of Rebellion only but an hundred years ago strange exorbitances of that nature were committed by London and other Corporations then they went by way of
if with more 6 d. a Day That if any refused to Pay he should be amoved from his place in the Market That by Colour of this By-Law the Mayor and Commonalty and Citizens have Extorted great Sums of Money for their own private Gain amounting to Five thousand Pounds per Annum 2. And farther That whereas there was a Session of Parliament holden 21 Octob. 32. C. 2. and continued till the 10th of Jan. 82. and then by the King Prorogued to the 20th of that instant January The Mayor Commonalty and Citizens Jan. 13. in their Common Council assembled malitiose advisate seditiose absque legali Authoritate in se assumpserunt ad censendum judicandum dict' Dom ' Regem nunc Prorogationem Parliamenti by the King prorogued and in the same Common Council Vota Suffragia sua dederunt ordinaverunt That a Petition sub nomine the Mayor Aldermen and Commons of the City of London in Common Council assembled to the King should be exhibited In which Petition it was contained That by that Prorogation the Prosecution of the publick Justice of this Kingdom and the making necessary Provision for the Preservation of the King and his Protestant Subjects had received Interruption And that the Mayor Commonalty and Citizens in the same Common Council did unlawfully malitiose advisate seditiose with intent that the same Petition might be published and dispersed among the King's Subjects to induce in them an Opinion that the King had by that Prorogation obstructed the publick Iustice and to incite hatred against the King's Person and Government and to disturb the Peace did order that Petition containing the said scandalous matter to be printed and thereupon to those ill Ends and Purposes they caused it to be printed and published By which the Mayor Commonalty and Citizens the aforesaid Liberty and Franchise of being a Body Politick forisfecerunt and after by the time in the Information have and yet do usurp it Before I come to the matter I would speak to the Pleading herein and in the subsequent Surrejoinder And for the Pleading in it I think it is as singular and unpresidented as the Matter of it is This Replication supposing the matter had been the Act of the Body Politick and good and sufficient yet as pleaded is insufficient and not warrantable by any Law or Practice ever known It contains 1. An Issue viz. no Corporation time out of mind 2. Two Causes of Forfeiture of the Corporation admitting they once were a Corporation So that though the point in question be but one viz. whether we are lawfully a Corporation or no Corporation though the Plea is single that we are a Corporation by Prescription time out of mind yet here is to try this point 1. An Issue 2. A double Plea alleadging two Causes to avoid it for a Forfeiture This I conceive cannot legally be done though in the King's Case I do agree the King hath great Prerogatives in Pleadings and as far as ever they have been allowed or enjoyed let them be so still but that the King can to the same matter both take Issue and also plead over at the same that I deny It is most reasonable that the Law should be carefull to preserve the King 's Rights but on the other side I think it is not reasonable that the Law should admit or allow as legal any way of Proceeding that should destroy or render the Subjects right indefensible be his right as good as it may be If so be that Mr. Attorney may both take Issue upon the Fact and also plead over I would by your leave ask how many Issues and how many Pleas over the King's Attorney may have Suppose the King bring a Quare Impedit or Writ of Right or any other Action the Defendant makes his Title which is usually done by many Grants and Conveyances from one to another to bring it to himself May the King's Attorney now take as many Issues as facts issuable plead as many Pleas as he pleaseth and all this simul semel 'T is true that in this case Mr. Attorney hath assigned only two Breaches or Causes of Forfeiture but he might if he had pleased by the same Reason have assigned 200. If this may be Are we not all at Mr. Attorney's Mercy If this may not be then how many Pleas Is it in Law defined In favorem Vitae a man may plead a special Plea and plead also not guilty but not several special Pleas but that there is any such Prerogative for Mr. Attorney in Suits betwixt the King and his Subjects I can find no Instance or Authority for it For though it be true as I have said that the King hath great Prerogatives in pleading yet it is as true that this is not boundless but that if in the King's Writs there be mistakes or his Writ or his Action misconceived he shall be bound by it in like manner as Subjects are or shall Partridge against Strange and in the same Book in my Lord Berkley's Case Com. 84. a. 236. a it is expresly said That though the King hath many Prerogatives concerning his Person Debts and Duties yet the Common Law hath so admeasured his Prerogative that it shall not take away or prejudice the Inheritance of any The King hath a Prerogative that he may wave his Demurrer and take Issue or wave his Issue and demurre upon the Plea But saith the same Book he must doe it the same Term Com. fol. 236. not in any other Term for then he may doe it in infinitum without end and the Party hereby may lose his Inheritance and for that the Common Law will not suffer the King to have such a Prerogative These are the words of the Book And in the point that this Prerogative must be made use of the same Term and that the King's Attorney cannot vary in another Term and wave his Issue is 13 E. 4. 8. Bro. Prer 69. 28 H. 8. 2. So in making Title to a Quare Impedit he at the end of the Term waved his first Title and made another But it is true also Rex vers Bagshaw Cr. 1. 347. that as to the point of Waving Demurrers and taking Issue in another Term there is authority that he may so doe but whether it may be done or not in another Term is not material to our case But the use I make of these Cases is to prove that the King's Attorney should not have both together simul semel as in this case he hath done he must wave one before he can have another Plea For those Debates about his varying his Plea by waving his Issue and demurring or waving his Demurrer and taking Issue signifie nothing if he may in one Plea and at the same time take Issue and demurre or plead over to the same matter or point as is done in this case therefore those Books strongly prove that the Prerogative that the King hath
and lawfull Corporation is yet in being which is contrary to the whole frame and scope of both the Information and Replication and probably never thought on or intended when the Information or Replication was made being quite contrary and inconsistent with the frame and foundation of them both If it be holden according to this concession that the old and lawful Corporation was not by the supposed Acts of Forfeiture dissolved and determined ipso facto but remained and continued lawfully a Corporation and yet is so then we have not usurped but are a lawful Corporation during the time in the Information and not as therein supposed by Vsurpation and without lawful Authority and thereby the Information confounded and abated But supposing according to what the Information and Replication suppose That the Acts of Forfeiture did ipso facto dissolve and determine the Corporation for they will at last I doubt come to that again for this present thought that it shall be forfeit but not dissolved or determined till Iudgment will be subject to almost all the same inconveniencies for when Iudgment given the Forfeiture must relate to the time of Offence and to avoid all mean Acts as in other Cases it doth But to pass over 3. Supposing the Information good the Replication good and the Matters alledged for Forfeiture to be as in the Replication alledged The next thing I pray leave to speak unto is Whether the Matter alledged in the Rejoynder be not sufficient to justifie or excuse the two Facts alledged for cause of Forfeiture I conceive they are The Pleadings here must first be stated 1. As to the Ordinance or by-By-Laws for the Toll in the Markets As to that the Defendants in their Rejoinder have alledged That the City of London is and was always the capital and most populous City of the Kingdom That there are and always have been great publick Markets within the said City That the Mayor Commonalty and Citizens are and always have béen seised of those Markets in their Demesne as of Fée and at their own proper Charges provided Market-places Stalls Standings and other Accomodations for Persons coming to those Markets and Overséers and Officers for better regulation and kéeping good order and cleansing the same That for defraying those Charges they have and always had and received divers reasonable Tolls Rates or Sums of Money of all Persons to those Markets coming for Stalls standing and other accommodations by them had for exposing to Sale their Victuals and Provisions in those Markets That the Fréemen of the City of London are numerous above fifty Thousand That there hath been time out of mind a Common-Council consisting of the Mayor Aldermen and certain Fréemen annually Elected not excéeding the number of two Hundred and fifty called the Commons That there is a Custom within the City that the Common-Council make By-Laws and Ordinances for the better Regulation and Government of the publick Markets and for the appointing convenient places and times when and where within the City the Markets shall be kept and for the assessing and reducing to certainty reasonable Tolls Rates or Sums of Money to be paid by Persons coming to the same Markets for their Stalls Stations and other Accommodations by them had for exposing to Sale their Victuals as often as and when to them should be thought expedient so as their Ordinance be useful to the King and his People consonant to reason and not contrary to the Laws of the Land That this Custom is confirmed by Mag. Char. Stat. 1. E. 3. Stat. 7. R. 2. That after the Burning and Rebuilding London and the alterations thereby made Controversies did arise within the City concerning the Markets and the Tolls That thereupon Sir William Hooker then Mayor and the Aldermen and Commons in Common-Council assembled did make an Ordinance Entituled An Act for the Settlement and well ordering the several Publick Markets within the City By which reciting That whereas for accommodation of Market-people with Stalls and Necessaries for their standings for clensing and paving the same for defraying incident Charges about the same reasonable Rates had always béen paid To the end the Rates to be paid might be ascertained That the Market-people might know what to pay and the Officers what to take to avoid extortion it was ordered there should be paid by the Market-people for their Stalls Standings and Accommodations in the Markets For every Horse-load of Provision under publick shelter 2 d. a day for every Dosser 1 d. a day for every Cart-load drawn with not above thrée Horses 3 d. a day with more Horses 4 d. a day and upon refusal to pay to be removed Then they aver that these Rates are reasonable That they are all the Rates that are paid by such Market-people to the use of the City That these Rates they have received since the making these Ordinances That there is no other Ordinance for raising Moneys for such Provisions exposed to Sale in their Markets in any manner made To this Rejoinder Mr. Attorney hath sur-rejoyned and taken it by Protestation That the City were not seised of the Markets nor at their own Costs provided Stalls and other accommodations and that the Rates by the Ordinance appointed were not reasonable For Plea sets sorth An Act of Parliament made 22 Car. 2. Enacting That to the end apt and convenient Places within the City should be put out for Buildings and keeping the Markets and that the Royal Exchange Old-Baily and common Gaols and Prisons within the City should be made more commodious for the enabling the City to do these things they should have a Duty out of Coals imported betwixt May 1670. and Mich. 1687. into the Port of London 12 d. per Chaldron which Duty they have accordingly received amounting to a great Summ and notwithstanding that Duty without Title or Right the Defendants made the By-Law for their private Gain absque hoc that the Mayor and Commonalty and Citizens have time out of mind had or accustomed to have Tolneta ratas sive denariorum summas per ipsos Majorem Communitatem ac Cives Civitatis predict ' superius supposit ' fore per praesat ' legem sive ordinationem predict ' assess in certitudinem reduct ' prout per placitum superius rejungend ' supponitur The Defendants they rebutt and say That they have always had reasonable Tolls Rates or Summs of Money of all Persons coming to their Markets to sell their Provisions for their Stalls and accommodations Et de hoc ponit se super patriam Le Attorney Demurs Vpon his Pleadings the Questions are Whether the matters alledged by the Defendants in Iustification of the Ordinance or By-Law be a good Iustification in Law or not If it be Mr. Attorney in his Sur-rejoinder hath given no answer to it at all he hath neither confessed it nor denied it The Rejoynder saith That the Defendants are and always have béen seised of the Markets in Fée That
they at their Charge provided Market-places Stalls Standings and Officers for the accommodations of the Markets and cleansing them That for defraying those Charges they have always had divers reasonable Tolls and Rates for Standings and other accommodations That the Common-Council have as often as expedient always made Ordinances for regulating those Markets and for assessing and reducing to certainty reasonable Tolls Rates and Summs of Money to be paid by the Market-people for their accommodations That according to this Custom they made the Ordinance and by-Law Mr. Attorney in his Sur-rejoinder hath not denied any part of this but offers a traverse to that which is no where alledged or supposed It is never pretended that the City have had time out of mind the very Tolls and Summs of Money for Toll assessed by the Ordinance There is not a word in the Rejoinder to that purpose but to the contrary viz. That they in their Rejoynder claim a Power by Ordinance of Common-Council to assesse and set the Rates of these Tolls and Payments as often as and when to them shall seem expedient It is admitted in the Rejoinder that these Summs were not time out of mind only they had Power to sett and assess and ascertain as often as expedient Therefore when Mr. Attorney traverseth our having time out of mind the Tolls Rates and Summs of Money by the Ordinance assessed and in certitud ' reduct ' This is plain besides any thing claimed or pretended unto If he had intended to traverse what we have alledged that we have had time out of mind divers reasonable Tolls Summs of Money for Stalls and Accommodations Or if he would have traversed the Instance alledged for the Common Council assessing those Tolls as often as expedient that was plain and easie to doe but that he hath not done He hath only traversed whether the Tolls Rates and Summs of Money by the Ordinance assessed and reduced into certainty have been time out of mind This is the proper sense of his Traverse but if doubtfull in its sense his Traverse is naught for that cause for dubious words can make no Issue for the Iury to try else men should be tricked and ensnared by doubtful words to pervert right So that if the matter alledged in the Record be sufficient in Law to justifie the making this Ordinance or By-Law then what is done therein by the Act of Common-Council is lawfully and rightfully done and no Forfeiture I do agrée that for a Lord of a Market to prescribe to have a Toll uncertain and as often as expedient to ascertain it is no good Prescription But that is not our Case I do distinguish betwixt that and this Case Where there is by Custom confirmed by Acts of Parliament for I shall shew that they are Acts of Parliament notwithstanding what hath béen objected against them a Power and Authority vested in the Lord Mayor Aldermen and Common-Council to regulate and order the People Trades and Markets in the City and the Places and Conveniencies and Officers from time to time and consequently to regulate and ascertain the Tolls or Rates to be paid by the Market-people to prevent Extortion and Disorders That such Custom is legal The Chamberlain of London 's Case An Ordinance that no Broadcloth shall be sold in the City before it be brought to Blackwell-Hall to be searched Rep. 5. 69. and a Penny for every Cloth to be paid for Hallage under pain for forfeiting 6 s. 8 d. a Cloth to be recovered in the City Courts Though objected that this was an Imposition of payment of Money upon the King's Subjects yet adjudged good and a Procedendo granted An Ordinance that no Unfreeman shall use a Trade in London adjudged good City of London's Case Rep. 8. fol. 1. A multitude of Ordinances they have for regulating all manner of Trades and of Rates and Prizes And as much reason there is to object against them as this Ordinance or the Custom in this Case But the City of London have a Government and Power of making Ordinances for governing and regulating Trades buying and selling within the City placed in the Common-Council and confirmed by Act of Parliament and therefore not like the Case of any private Lord of a Market But 't is true their Ordinances must not be unreasonable The Payments that are imposed by this Ordinance are only imposed upon those that are under shelter 't is reason a recompence should be paid and there is no unreasonableness or injustice appears in the Ordinance but a reasonable recompence But the Custom or Power of the Common-Council is not denied as I take it For they have not denied the Power to regulate and ascertain the Tolls or Summs of Money alledged to be in the 5Common-Council if they had that must have been tryed Nor have they denied the Rates set to be reasonable So that I think as to this matter we have well entitled our selves and justified our making our By-Law and taking the Tolls or Rates thereby appointed and nothing in the Surrejoinder against us to the contrary objected But for confirming and making good our Customs in the Plea there are thrée Acts of Parliament pleaded 1. Magna Charta 2. Stat. 1. E. 3. 3. Stat. 7. R. 2. The King's Council have not denied Magna Charta to be a Statute but have denied the other two to be Statutes or Acts of Parliament and the reasons given by them are Obj. 1. Because not in Print nor Roll of it to be found or because no body knows where to find it Resp 1. Private Acts of Parliament do not use to be Printed few are 2. No Roll to be found Suppose there were not doth this after so long a time conclude there was none such especially since Mr. Sollicitor was pleased to acknowledge that there are no Parliament Rolls of E. 3. till 4 E. 3. It is true that almost all the Parliament Rolls of H. 3. E. 1. E. 2. and till 4 E. 3. are almost all lost But besides in those days publick Acts were not only entred upon the Parliament Rolls but from thence transcribed and sent under the Great Seal to be published by the Sheriffs of the Counties in the Cities and Boroughs and also by Writ to the Courts in Westminster-Hall to be there entred and recorded of which there are many found especially in the Exchequer and hence came the rule in Law that Iudges ex Officio are bound to take notice of general Acts of Parliament But for private Acts they were put under the Great Seal and the Parties interessed had the same to produce But that these in this Case should be questioned to be Acts is strange But to prove them Acts First 1. As to the Act 1 E. 3. 1. We have pleaded it under the Great Seal of King E. 3. that made it with a profert hic in Cur ' and shewn it with our Plea as we ought and this is Evidence sufficient of it self