the space of Seven Years next after the making this Ordinance received divers great Sums of Mony in all amounting to 5000 l. per Annum in oppression of the Kings Subjects And further That whereas a Session of Parliament was holden by Prorogation and continued to the 10th of January 32 Car. II. and then prorogued to the 20th of January then next The Mayor Commonalty and Citizens 13 Jan. 32 Car. II. in their Common Council assembled unlawfully maliciously advisedly and seditiously and without any lawful Authority assumed upon themselves Ad censendum judicandum dictum Dominum Regem Prorogationem Parliamenti per Dominum Regem sic fact ' And then and there in Common Council Assembled did give their Votes and Order that a certain Petition under the name of the Mayor Aldermen and Commons of the City of London in Common Council assembled to the King should be exhibited in which said Petition was contained That by the Prorogation the prosecution of the publique Justice of the Kingdom and the making necessary provision for the preservation of the King and of his Protestant Subjects had received interruption And that the Mayor and Commonalty and Citizens in the same Common Council assembled did unlawfully maliciously advisedly and seditiously and with intention that the said Petition should be dispers'd amongst the Kings Subjects to induce an opinion in them that the said King by proroguing the Parliament had obstructed the publique Justice and to incite the Kings Subjects to hatred of the Kings Person and Government and to disturb the Peace of the Kingdom did Order that the said Petition should be printed and the same was printed accordingly to the intent and purpose aforesaid By which the Mayor Commonalty and Citizens aforesaid the Priviledge Liberty and Franchise of being a Body Politique and Corporate did forfeit and afterwards by the time in the Information that Liberty and Franchise of being a Body Politique did usurp upon the King Et hoc c. And as to the other two Pleas viz. The making and having Sheriffs and Justices of the Peace The Attorney General Imparles to Mich. Term. THE Mayor Commonalty and Citizens Rejoynder as to the Plea of the Attorney General pleaded in Assigning a Forfeiture of their being a Body Politique and Corporate Protestando That those Pleas by the Attorney pleaded and the matter in the same contained are insufficient in the Law to forejudge or exclude the Mayor and Commonalty and Citizens from being a Corporation Protestando etiam That no Act or Deed or By-Law made by the Mayor Aldermen and Common Council is the Act or Deed of the Body Corporate Protestando etiam That they the Mayor and Commonalty and Citizens of London never took upon them any unlawful or unjust Authority to Tax the Kings Subjects for their own private Gain or did ever levy or exact from the Kings Subjects coming to Markets such yearly Sums as in the Replication are alledged For Plea say That London is the Metropolis of England and very populous Celeberrimum Emporium totius Europae That there are and time out of mind have been divers publique Markets for Provision and Merchandise within the said City to be sold That the Mayor and Commonalty and Citizens have been time out of mind and yet are seiz'd of these Markets in Fee and by all the said time at their own Costs and Expences have provided and have accustomed and ought to provide at their own costs Places for the holding the said Markets and Stalls and Standing and other Accommodations for persons bringing Provisions and Merchandises to the said Markets and Supervisors and other Officers for the better preserving and ordering the said Markets and of the great concourse of persons coming to the same and for the sustaining and supporting of the said costs and expenses by all the time aforesaid have had and ought to have reasonable Tolls Rates or Sums of Mony of persons coming to the said Markets for their Stalls Standings and other Accommodations by them for the better exposing their Commodities had and enjoyed They further say That the Citizens and Freemen of London are very numerous viz. 50000 and more That within the said City there hath been time out of mind a Common Council assembled as often as necessary consisting of the Mayor Aldermen and of certain of the Citizens not exceeding 250 persons thereto annually elected called the Commons of the said City That there is a Custom within the said City for the Mayor Aldermen and Common Council to make By-laws and Ordinances for the Regulation and Government of the publique Markets within the City That these Liberties and Customs of the City were confirmed by Magna Carta and the other Statutes in the Plea abovementioned That by reason of the burning of the City in Septemb. 1666. and the Alterations in the Market-Houses and Places thereby occasion'd for the establishing and resetling the Markets within the City 17 Septemb. 26 Car. II the then Mayor Aldermen and Commons in Common Council Assembled according to the said Custom for the better Regulation of the said Market did make and publish an Ordinance Entituled An Act for the Settlement and well-ordering the Publique Markets within the City of London by which said Ordinance reciting that for the accommodation of the Market People with Stalls Shelters and other Necessaries for their Standing in the Markets and for the amendment paving and cleansing the Market-places and for the support and defraying the incident Charges thereof there have been always certain reasonable Rates and Duties paid for the same And to the intent that the said Rates may be ascertain'd and made publique to all Market-people and the Collectors restrained from exacting It was Enacted and Ordained by the said Common-Council that the Rates and Sums in the Replication should be paid to the use of the Mayor and Commonalty and Citizens or upon refusal to be removed out of the Market And they aver that these are all the Rates or Duties paid and were reasonable Sums to be paid and these they have demanded and received for the use and purpose aforesaid as was lawful for them to do As to the other matter alledged by the Attorney General in Assigning the Forfeiture they say That within this Kingdom viz. at the Parish of St. Michael Bassishaw London there was an execrable Plot and Conspiracy prosecuted by Papists to destroy the King and to subvert the Ancient Government and suppress the true Religion in this Kingdom Established That Sir Edmundbury Godfrey took Examinations of Witnesses and Informations of the same and also of the burning of London by the Papists That divers of these Conspirators had lain in wait for him and murthered him to the intent to suppress his Examinations and to deter other Magistrates from acting in the Discovery That Green and others were try'd and hang'd for this Murther That Coleman and others were also try'd and executed for the same Conspiracy That William Lord Powis
Moor it was the Case of the Bell-man of Litchfield A Prescription is made that the Corporation of Litchfield hath a Market and they ought to repair the way to it and to appoint a Bellman that should sweep the Market-place and that for this the said Bellman time out of mind had taken of those that brought Corn to the said Market and opened their Sacks to sell a pint of Corn if but a Bushel or under if more a Quart So that if it were opened and not sold yet he was to have that Duty and that Prescription was adjudged to them by all the Iudges and yet it does not appear there whether the repairing that way cost them 5 s. or 5000 l. and yet by intendment they would not account it unreasonable though it might have been urged it was very unequal if they could take a Pint for that which was under a Bushel perhaps they would take by that means half of what the party bought but if there were fifteen Bushels they had but a Quart and this was objected as to the inequality of it and yet they all passed over that by a reasonable intendment and would not deny the Prescription to be good And the Case of Cranage in Dyer and the Case of 21 H. 7. 16. are admitted to be good Law where the Town of Gloucester prescribed for a Toll of Boats passing by the River near the Town Now my Lord for ours there was very great reason to induce it the great alterations that were made in London by the Fire and it was not the first time that London was burnt And if there should be War and so great Alterations and Confusions there were great cause that the City that lays out great Sums and must be at such a publick Charge should not be losers by it And we do set forth more than they do in the Case of Litchfield that we provided the Market-places at our own charge and if they will use them they must expect to pay some compensation for it that we do kéep Officers and pay them for cleansing and kéeping Order in the Markets And above all that we provide Standings and Stalls and such Accomodations and that I am sure is a Provision no Lord of a Market is bound to make unless he will and therefore the Market-people that are accomodated by it have great reason to pay for it and we pay all the Taxes for the Market-places for the ground is ours and that is not alledged in the Pleading indéed but it must be implied because we pay the Taxes and they that have the Standings are not lyable to pay the Taxes And so is the Iudgment in Rolls 2 p. 238. and the 2d Abr. 289. And in the Case of Cusack Iustice Dodderidge says That the redéeming of one Fair from the Abbot of Westminster cost the City of London 8000 l. for he had a Fair at Westminster and a Market for 40 days and that during that time no Sale should be in London or the places adjacent and a great Rate it was if it were so The measure of a Toll is according to my Lord Coke 2 Inst 58. when the thing demanded for Wares or Merchandizes does so burthen the Commodity that the Merchant cannot have a convenient Gain by Trading therewith and thereby Trave is lost or hindred then 't is an evil Toll But here indeed the Market-people are better accommodated than ever they were and Trade is so far from being discouraged as that it is increased as is implyed in the Replication for 't is said we receive 5000 l. a year which if it were so unequal would not certainly be paid nor could be if there were not great Trade there So that the increase of Trade is the thing complained of in this Quo Warranto And the truth of it is I have examined and looked into the Fact of these things and there is nothing in this By-law but what was really anciently paid except only in one Instance whether it were 6 d. or no that was paid when a Cart was drawn by two Horses which now is but 4 d. and if we have increased the Toll which I doubt whether it be so or no 't is only in a very trifle Now my Lord this Case I think is a stronger Case than that in 5 Rep. the Chamberlain of London's Case there is no consideration of Stalls or cleansing the place but only they had an Officer to search and view and that was a new appointment of their own they could not prescribe for it but it was thought a penny was a reasonable recompence and the Subject had a benefit by it and if he would bring his Cloth to London to be sold he should come thither to have it viewed and give a recompence for it Now London is all Market indeed every Shop is a Market and it hath been well said of the Iudges several times in Westminster-Hall that London is the Market of all England and there is never an Acre in England but is the better for that As to the Imposition upon Coals that is but an inducement and an inducement is never to be relyed upon 't is not to be stood upon And Mr. Solicitor did very honourably decline it and did not make any thing of it nor trouble the Case with it When the City did make this Act of Common Council they did consult with their Counsel for matter of Law and with their Officers and Fellow-Citizens for matter of Fact and did adjust these rates and enacted them to be paid they being reasonable ones and according to the ancient Vsage but if they were mistaken it will be no cause for you to give Iudgment against them for many other reasons As first you cannot judge this to be unreasonable I have not heard one word said that this is an unreasonable oppressive Toll Here is money levyed what then If it be a reasonable sum 't is not so great it does not deserve the name of Oppression I say 't is not so great an Oppression if they should have been mistaken in the form of instituting the levying of it if they might have done it under their Common Seal and now they have done it without that by Act of Common Council Nay it does not deserve that you should judge it unreasonable you cannot do it here for the considerations are meritorious and equivalent to it the great charge they were at in Building and they still daily are at in cleansing and repairing and providing Stalls But however the Case is not so disclosed here that you can judicially determine this to be an unreasonable Toll According to the Rule in Cokes Magna Charta 222. the Toll of a Market need not be certain only it must be reasonable And what shall be deemed reasonable the Iudges must determine if it come judicially before them So shall reasonable Customs and reasonable Fines and reasonable Services and reasonable Time to remove Goods and the like they must
a 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
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-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
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
the time being and of certain Freemen not exceeding 250 annually elected to serve as Common Council-Men and are called the Commons of the City That time out of mind there hath been a Custome that the Mayor Aldermen and such Citizens so elected to be of the Common Council according to custom have been accustomed to make By-Laws and Ordinances for the better regulation of the publick Markets for appointing times and places and assessing and reducing into certainty reasonable Tolls Rates and Summs of Money payable for Stalls and Standings in the Market For any things appears upon the Record this is all they have power to doe Non constat to the Court that they have any other power or authority over Lands Estates or any thing else Next If this which in the Rejoinder is alleadged of the Being and Power be true and so admitted then what they did in making the Ordinance was done by good and lawfull power and authority and then can be no Offence But if to make the Ordinance be an Offence and an unlawfull Act you deny the Custom to be good and say the Custome is void and against Law and for that Reason the Ordinance illegal Then non constat that they had any power at all to doe any thing and then a Common Council to advise without power to doe any Act and if so How can a parcel or part of a Corporation not authorised to doe any Act doe an Act that shall forfeit Suppose a particular Company as the Mercers had done this could this be a Forfeiture But if to avoid this you will say that the Court shall take notice of the Common Council of London to have the management of the business of the Corporation belonging to them This I think the Court cannot doe and I cannot see how possibly they can as a Court judicially take notice hereof Suppose our Question had been concerning another Corporation could the Court then as a Court judicially have taken notice of the Power or Authority of their Common Council Mr. Sollicitor in his Argument held That there was no difference betwixt London and another Corporation except that London was the biggest Then put the case of any other Corporation could the Court judicially have taken notice of their Power or Interest without having it specially set forth Is it possible the Court can since they differ one from the other as much as their Charters or Constitutions do differ of which there is hardly to be found two in England that do agree in their Powers If it had been of another Corporation of necessity the constitution of the Common Council must have been set forth If you are upon a By-law made by any other than the Body Politick it self must not the Power and Authority of those that made it be shewn and set forth in Pleading in any case where there is occasion to use it How otherwise could the Court judge or determine of it So that taking the Law to be as the other side saith that London differs not from any other Corporation it is no where alledged in the Pleading that they have Power to make By-Laws for the ordering and governing the City or that they can bind all the Corporation in sale or disposition of their Lands or have the power of the common Seal Therefore when the King's Counsel argue from these Powers their Power of forfeiting they argue quite out of the Record they have no where alleadged or pleaded what they are or what Power they have as they should have done if they had so intended So as to this particular here is nothing before the Court nothing upon Record to shew how or which way the Body Politick should be concerned in these Acts of about two hundred and fifty of their Members called the Common Council Wheresoever any By-Laws or Ordinances are pleaded the Power to make these By-Laws or Ordinances is pleaded and so are all particular and derived Authorities whenever occasion to plead them and necessary they should be so For 't is Fact that the other side may and ought to be at liberty to deny it if he sée cause and therefore if they will have it that the Common Council have abused some Power or Authority they have thereby to forfeit the Corporations they ought to have shewn it to say that notice shall be taken or it shall be intended or presumed is in truth a Presumption upon the Court as if the Court should take notice of intend or presume what the King's Counsel would have which the Court cannot nor will doe more in this than in other cases But supposing the Court will take more notice of London than any other Corporation and will take notice of the Common Council there and of their Power and Authority and I will suppose as the other side do That they have the Power of making By-Laws of leasing granting and managing the City Lands and Revenues and of sealing with the common Seal and that this they have by Custome Then surely say the other side they have the Power of surrendring and forfeiting the Corporation If I should answer surely and without doubt they have not this would not argue they have not but the Argument should come of the other side to prove they have they have not nor can produce any Case or Opinion to prove it and the very thought that they could is so new that I believe none can be found like it But let us consider the nature of this Thing a little par ticularly though general Discourses are most easie and florid-yet perhaps a particular Enquiry may best discover Admit that they have the Power the other side say they have yet they are not the Corporation but a part constituted for these particulars ends and purposes for which they are impowered Corporations had their Creations by Charter that gives them their Being and the Form Method and Power of Action Suppose that the first Charter of Incorporation that was granted to London did grant that the Citizens should be incorporate and a Body Politick by the Name of Mayor and Commonalty and Citizens that there should be a Mayor so many Aldermen and so many of the Citizens annually elected that should be a Common Council and that they should have Power to make By-Laws to demise or grant their Lands under the common Seal in the name of the Corporation If they doe any Act not within their Commission is not that void Suppose a Grant made to the Common Council would not that be void Suppose a Grant made by the Common Council in the name of the Common Council under Seal or in the name of the Corporation but not under Common Seal is not all this void This I only instance to shew that their Charter and Authority is their Power and Warrant they are to act by did ever any man hear of or sée a Charter giving the Common Council power to Surrender the Corporation or was it ever thought of before
I Have perused this Report and do License George Grafton to Print the same Jan. 23. 1689 90. Hen. Pollexfen THE CASE OF THE Quo Warranto Against the City of LONDON WHEREIN The JUDGMENT in that CASE and the ARGUMENTS in LAW touching the FORFEITURES and SURRENDERS of CHARTERS are Reported LONDON Printed for George Grafton near Temple-Bar in Fleet-street 1690. Mich. 33. Car. II. in B. R. rot 137. Sir Robert Sawyer Knight His Majesty's Attorny General AGAINST The Lord Mayor and Commonalty and Citizens of London The Information in Nature of a Quo Warranto sets forth THAT the Mayor and Commonalty and Citizens of the City of London by the space of a Month then last past and more used and yet do claim to have and use without any Lawful Warrant or Regal Grant within the City of London aforesaid and the Liberties and Priviledges of the same City The Liberties and Priviledges following viz. I. To be of themselves a Body Corporate and Politique by the Name of Mayor and Commonalty and Citizens of the City of London II. To have Sheriffs Civitat Com' London Com. Midd ' and to name elect make and constitute them III. That the Mayor and Aldermen of the said City should be Justices of the Peace and hold Sessions of the Peace All which Liberties Priviledges and Franchises the said Mayor and Commonalty and Citizens of London upon the King did by the space aforesaid Usurp and Yet do Usurp THE Mayor and Commonalty and Citizens they appear by their Attorney and Plead Plea I. As to their being a Body Politique and Corporate they prescribe and say 1. That the City of London is and time out of mind hath been an Antient City and that the Citizens of that City are and by all that time have been a Body Corporate and Politique by Name of Mayor and Commonalty and Citizens of the City of London That in Magna Carta de Libertatib ' Angliae in the Parliament holden 9 Hen. 3. it was enacted quod Civitas London ' habeat Omnes Libertates suas antiquas Consuetudines suas That in the Parliament 1 E. 3. That King by his Charter De Assensu Prelatorum Comitum Baronum totius Communitatis Regni sui and by Authority of the same Parliament having recited that the same Citizens at the time of the making Magna Carta and also in the time of Edward the Confessor William the Conqueror and other his Progenitors had divers Liberties and Customs Wills and Grants by Authority aforesaid That the same Citizens shall have their Liberties according to Magna Carta And that for any Personal Trespass Alicujus Ministri ejusdem Civitatis Libertas Civitatis illius in manus ejusdem Domini Regis Ed. 3. vel heredum suorum non caperetur sed hujusmodi Minister prout qualitatem transgressionis puniretur They Plead also That in the Parliament holden 7 R. 2. Omnes Consuetudines Libertates Franchesia Privilegia Civitatis predict ' tunc Civibus Civitatis illius eorum Successoribus Licet usi non fuerint vel abusi fuerint Authoritate ejusdem Parliamenti ratificat ' fuerunt Then they Plead the Confirmations of several later Kings by their Charters as of King Henry VI. by his Charter Dated 26 Octob. 23 H. 6. King Edward IV. by his Charter Dated 9 Nov. 2 E. 4. King Henry VII by his Charter Dated 23 July 20 H. 7. King James I. by his Charter Dated 25 Sept. 6 Jac. 1. King Charles I. by his Charter Dated 18 Octob. 14 C. 1. King Charles II. by his Charter Dated 24 Jan. 15 C. 2. Ac eo Warranto they claim to be and are a Body Politique c. and traverse their Usurping upon the King II. As to the having electing making and constituting Sheriffs of London and Middlesex they Plead That they are and time out of mind were a Body Politique and Corporate as well by the Name of Mayor and Commonalty and Citizens quam per nomen Civium London And that King John by his Letters Patents under the Great Seal of England in Court produced dated 5 Julii Anno regni sui primo granted to the Citizens of London that they should have the electing making and constituting Sheriffs of London and Middlesex imperpetuum Then they plead this Liberty and Franchise confirmed to them by all the aforementioned Statutes and Charters ac eo Warranto they claim to make and constitute Sheriffs III. As to the Mayors and Aldermens being Justices of the Peace and holding Sessions they plead That the City is and time out of mind was an Antient City and County and the Citizens a Body Politique That King Charles the First by his Letters Patents Dated 18 Octob. 14. Car. I. Granted to the Mayor and Commonalty and Citizens of the City of London That the Mayor and Aldermen of London such of them as had been Mayors should be Justices of the Peace and should hold Sessions eo Warranto they claim to be Justices and hold Sessions TO this Plea the Attorney General replies Respons And as to the Mayor and Commonalty and Citizens of London being a Body Politique and Corporate First takes Issue that they never were a Body Corporate and for this puts himself upon the Country And then goes over and pleads That the Mayor Commonalty and Citizens assuming upon themselves to be a Body Politique and Corporate and by reason thereof to have Power and Authority to convocate and assemble and make Laws and Ordinances not contrary to the Laws of the Kingdom for the better Government of the City and Citizens and for preserving the Kings Peace Under colour and pretext thereof but respecting only their private gain and profit and against the Trust in a Body Corporate by the Laws of this Kingdom reposed assumed an unlawful and unjust Authority to levy Mony upon the Kings Subjects to their own proper use by colour of Laws and Ordinances by them de facto ordained and established And in prosecution and execution of such illegal and unjust Power and Authority by them Usurp'd 17th of Septemb. 26 Car. II. in their Common Council Assembled made constituted and published a certain Law by them de facto enacted for the levying of several Sums of Mony of all the Kings Subjects coming to the Publique Markets within the City to sell their Provisions viz. Of every Person for every Horse-load of Provisions into any publick Market within the said City brought to sell 2 d. per day For every Dosser of Provisions 6 d. per day For every Cart-load not drawn with more than Three Horses 4 d. per day If drawn with more than three Horses 6 d. per day And that these Sums of Mony should be paid to the use of the Mayor Commonalty and Citizens And if any refused to pay then to be removed from his Place in the Market And that by colour of this Law the Mayor Commonalty and Citizens for their own private Gain had Illegally by
should be forfeited not that it should be seized into the Kings hands only Now my Lord where all the Franchises of a Corporation are forfeited what is the Corporation Truly 't is nothing 't is but a Name a Corporation without a Power to act is nothing at all Indeed I do not find any Iudgment in a Quo Warranto of a Corporation being forfeited yet my Lord it doth not follow from thence that this cannot be by Law for many Quo Warranto's have been brought against London and other places too to out Corporations of their Franchises but it hath always ended in submission to the King and so they have been at quiet All the Quo Warranto's in Mr. Attorney Palmer's time after the Kings Restauration against the several Corporations they all submitted and yet that was to question the very being of their Corporations Now my Lord pray consider a little upon the Rule of Law It should séem very strange if a Corporation should neglect to come into Eyre or into the Kings Bench the same Term that a Quo Warranto is brought against them they must be outed of their Franchise for ever as 't is said 15 Ed. 4. 6 7. And yet when all the contempts and oppositions imaginable are found upon Record that this should not be a forfeiture that seems absurd that a Neglect in Eyre should do it but all the Oppressions and Offences in the World when found upon Record should not do it But my Lord the mischiefs that would follow from hence are very great How many Oppressions and Offences would be daily committed if every Corporation were a Franchise and Iurisdiction independent upon the Crown and the punishment truly of some particular Men for those Offences would not be adequate where the power of offending and misgoverning should still remain sure that were no adequate redress of such an inconvenience And to this purpose my Lord I shall humbly offer a Case and 't is that great Case betwéen the Earls of Gloucester and Hereford Hill ' 20. Ed. 1. in B. R. rot Wallie 14. 'T is likewise in Riley's Placita Parliamenti 83 86. The Case is this in short They both claimed the Liberty of Returna Brevium and they had incurred great contempts in refusing to obey the Kings Writs and Iudgment was given against them That the Liberty should be seized for this reason which I think will go a great way in this Case and for which I offer it Quia puniendus est Dominus Libertatis in eo quo deliquit I think my Lord as I said that will go a great way in this Case to shew the Reason of the Law My Lord If the granting of too many and too large Franchises were a mischief as certainly it was by Law and as appears by the Commons Petitions 21 Ed. 3. rot Parl. No. 17. where they pray That new and large Franchises may not be granted because it tended to the overthrowing the Common Law and great Oppression of the People And the Kings Answer was That care should be taken for the time to come I say then if this were such a mischief that there ought not to be granted new and large Franchises much more would it be a mischief if these Franchises should not be under the controul of the Law when they exercise such Oppression And so my Lord I shall leave that point for I think it will be pretty clear that a Corporation may forfeit their being of a Corporation 2. I shall next than consider whether the City of London be in any other plight than any other Corporations I think truly there is no difference at all Now this Question doth depend upon what they have set forth by their Plea And that is the confirmation of Magna Charta cap. 9. Civitas London habeat omnes libertates suas antiquas consuetudines suas And then their Act of 1 E. 3. upon which my Lord Coke in his 4 Inst 253. says that the Franchise of this City shall not for any Cause be seized into the Kings hands And then theirs of 7 R. 2. which says that the City shall enjoy its whole Liberties Licet usi vel abusi This is their Foundation upon which they would distinguish this City from all other Corporations Now as to these things I give these Answers First for Magna Charta that plainly is no more a confirmation to them than 't is to other Cities and Corporations For not only the City of London is named to have its ancient liberties and customs preserved but 't is likewise Omnes aliae Civitat ' c. And all Cities Burroughs and Towns and the Barons of Cinque Ports and all other Ports should have all their Liberties and Frée Customs So my Lord Coke agrées it in his Comment And in what he cites out of the Mirror of Justice and other ancient Authors of our Law they should enjoy their Franchises which they had right to by lawful title of the gift and confirmation of the King and which they had not forfeited by any abuse So that the Act which confirmed them did not purge former forfeitures much less did it license other abuses Then for their Acts of 1 E. 3. and 7 R. 2. I shall humbly offer this That as they are in Truth no Acts of Parliament at all so they will not concern this Question whatsoever my Lord Coke says concerning them But I shall give some instances before these Acts to shew that they never had such an unquestionable Power as they now dream of and then some instances in after times that there either were no such Acts or no such sense at least is to be put upon them as they have strained to make First it appears 15 E. 1. that the Franchise of the City of London was seized into the Kings hand and Johannes de Britton was made Custos Civitatis London who was no Freeman and this implies that the Franchise was seized into the Kings hands for they had a power to choose de seipsis by Charter from King John a Citizen to be a Mayor or chief Governour but here was another Governour appointed them Then Rot ' Pat ' 26 E. 1. Rex pro bono servicio Civit ' London ' reddit eis Civit ' suam London habend ' dict' Civibus ad volunt ' Regis Teste Rege So that both the City and all its Franchises were seized at that time for he restored the very City of London to the Citizens habend ' during his Will and Pleasure Thus my Lord it stood in the time of E. 1. Then in the time of E. 2. seized again 14 E. 2. memb 21. of the Pat ' Rolls in 21 Rex dimisit Civibus London ' Officium Major ' Civitat ' London ' 15 E. 2. Rex dedit licentiam eligendi Major ' London ' And in the second part of Pat ' Rolls 15 E. 2. m. 5. The King recites That whereas in the Fourtéenth year of his Reign he had
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
of all the whole Corporation is fully represented by them notwithstanding the disparity of number set forth in their Rejoynder 2. Again All By-laws and Ordinances made for the good Government and Order of the City are certainly the Acts of the Corporation but the sole power of making those Laws is in the Mayor Aldermen and Common Council and therefore sure the whole power of the Corporation is in the Common Council 3. They have the sole power of the Corporation-Seal They can bind all the whole Corporation by any alienation to or charge upon their Inheritance and by consequence they may surrender all or any of their Franchises and then as I said they may forfeit them 4. They have pleaded that there hath been time out of mind a Common Council consisting of the Mayor Aldermen and two hundred and fifty Citizens who are called the Commons of the City So that it shall be intended now that as they have prescribed for it as incident to their Corporation it was part of their Original constitution to be thus represented by them and ruled and governed by their Laws But there is another reason for it and that is that it is an inseparable incident to a Corporation implyed in Law without grant that they have a power to make By-Laws to bind the Corporation without which there were no government in a Corporation and therefore a mis-user of that power must be a forfeiture of their Corporation because 't is a breach of their Original Trust 22 Assis pl. 34. there is this Rule given and a true one it is Where there are many Franchises granted which do not depend one upon another there the mis-user of one is a Forfeiture of that one which was mis-used but where there are several parts of a Franchise depending all upon the said Franchise if any part be misused the entire Franchise shall be forfeited As for instance if a man have a Fair a Court of Pypowders is incident to it the misuser of that Court of Cypowders is a forfeiture of the whole Fair it self for where any part is abused that is incident to an entire Franchise that abuse forfeits the whole And this is the Opinion of Palmers Reports in the Case of the Corporation of Maidenhead where 't is doubted whether the Market was forfeited for taking too much Toll because the Toll was not inseparably incident to the Market and so was not dependant upon the entire Franchise and there the rule is taken as I have said before that the mis-user of a part of an entire Franchise or a power that is incident to it is a forfeiture of the Franchise Then my Lord if they cannot forfeit here the whole power of the Trust of the Corporation is reposed in them and may be misused by them to the Oppression of the Kings Subjects and there is no remedy if they shall not be punished at all For it is much harder to say that several Acts of all the particular persons should forfeit the Corporation than that their Ioynt Act should do it But this my Lord is an Act contrary to the trust upon creating the Corporation and may be a mis-user to the prejudice and oppression of all people and if this should not forfeit the Corporation there is no remedy at all but the power remains of oppressing as it did before Now my Lord I think with submission I have made it pretty plain and as they are not distinguished from other Corporations in point of priviledge as to forfeitures so this is their Act and shall bind them being done by their Representatives IV. Then the fourth point will be Whether these Offences set forth in the Replication are Forfeitures 1. The first is the making of that Law in the Common Council for the levying of sums of mony upon the Kings Subjects and the actual levying of those sums accordingly and this they justifie under their prescription to have reasonable Tolls as they set forth in their Pleadings from all Persons that come to their Markets to sell Provision there and power to reduce their Tolls to a certainty by an Act of Common Council This is their Iustification so that my Lord the first thing to be considered is I. What right they have to these Tolls or Sums of Mony assessed by the By-law and then II. Whether if they have no right their taking upon them to make a Law be a Forfeiture For their Right that depends upon a prescription to have reasonable Toll as they set it forth and this as they have pleaded it appears to be no Right at all for a Prescription to have Toll and Tollage not shewing how much in certain is void for reasonable Toll is not incident to a Market but the Party has it by the Kings Grant and so 't was adjudged in this Court Mich. 39. 40. Eliz. cited by my Lord Coke in his Second Inst 220. So if the King grant a Toll if he do not in his Grant ascertain how much shall be taken for Toll that Grant is void And so is the Prescription too as you may sée in the Corporation of Maidenhead in Palmer's Reports fo 79. grounded upon 9 H. 6.45 11. H. 6. 19. and so he cites the Opinion of Popham in the Case of Heedy and Weeldhouse for no Subject can prescribe to have Toll but by the Grant of the King But my Lord this is not properly a Toll neither nor in the nature of a Toll for that is always paid by the Buyer and never paid before a Sale but here all that comes to the Market whether they buy or not buy sell or not sell they must pay by this Law My Lord I confess there may be a custom for Persons to pay for Standings in a Fair or Market as that Case was 9 H. 6. 45. but yet that must be prescribed for in a certain Sum which is not done here And this customary Payment is in the same nature as a Toll traverse or a Toll through which cannot be in an uncertain Sum for they are all by prescription and a Grant of them now uncertain would not be good But my Lord however Iudgment upon these Pleadings must be given against the City for either the Prescription as they have set it forth is good or it is not good if it be good then the Traverse that is taken is well taken to wit that they have no such Custom and they ought to have taken issue upon that which they have not done for my Lord they have taken issue thus That time out of mind they have had reasonable Toll of all Persons coming to the Market to sell their Provision without tying of it to the reasonable Toll assessed and reduced to certainty by the Law and this is naught for tho they had a reasonable Toll in general taking the Prescription to be good yet if either that reasonable Toll in the use of it were not taken in that manner or to that value that they
assess by their By-law then have they done wrong and therefore our traverse is proper to their reasonable Toll that they had not time out of mind such a Toll as they set forth for it must be such a reasonable Toll as may answer to that which is assessed in the By-law and that they have not put in issue For the King when once he hath granted a Market cannot after grant Toll to that Market because it is a free Market and the People have right to come to it as a free Market neither can they when once by custom they have exercised their Power of assessing reasonable Toll alter that at their pleasure for it being once set all People have right to come upon such terms And if they increase the Toll under pretence to reduce it to certainty it will be void for they may lower their Price if they will but they can never come to increase the Penalty If therefore they have done all in not taking issue upon the Traverse which does take in the full substance of their Rejoynder if it be good then Iudgmene must be given against them upon that reason so then my Lord the Question will be Whether the making of a Law to raise Mony at large upon the Subject be a Forfeiture of the Charter And truly my Lord that it is For I. 'T is the usurping of a Power that they neither can have nor have by Law II. 'T is a Breach of the Trust annexed to the Corporation for 't is a Misuser of the Franchise to the oppression of the Kings Subjects and therfore the Charter must be forfeited and not the other Franchise not the Franchise of a Toll for they have none not the Franchise of the Market for that would be nothing If the Market be forfeited it must either be extinguished or kept if it be extinguished 't is a punishment to others that did not offend and if it be kept the it be forfeited 't is no punishment to them that do offend And 't is a Question whether a Market may be forfeited for taking unreasonable Toll and that appears in the Case of Maidenhead And as my Lord Coke says upon the Statute about taking Outragious Toll the Franchise should be seized only till it be redeemed by them But my Lord however without going far into that matter this Offence lyes not only in taking the money but in taking upon them and usurping a power to make Laws to raise money They have taken upon them a Legislative Power to oppress their fellow Subjects that is their Offence and that is a mis-user of their Franchise My Lord in the Case of Ship money it was not the Quantum of money that was raised that was complained or quarrelled at but it was the manner of levying of it without an Act of Parliament The Logick and Consequence of that was it which was so much debated and stood upon So here the abuse and the offence is the making the Law and the consequence of that for by the same reason that they have a Prescription to lay so much they may have a Prescription to lay ten times as much So that upon what I offer upon this point I conceive it ought to amount to a forfeiture of their Charter and the loss of their Corporation Then the next thing will be that which is the last matter that is the Petition and that is of a strange Nature where the Offence is not only in Presenting but in Printing and Dispersing of it it charges the King with interrupting the publick Iustice of the Nation and the making the Necessary Provisions for the Security of his Protestant Subjects for my Lord to say that the Prorogation of the Parliament which is the Kings Act who surely has alone and none but he the undoubted Prerogative of Calling Proroguing and Dissolving Parliaments to say that Act of his was an Interruption of Iustice is all one as to say the King did interrupt and 't is done by them as a Corporation 't is the Act of the City in their Common Council in the Name of the Corporation and as we have pleaded it the Mayor Citizens and Commonalty in Common Council did do it which sure is the Corporation as they would have it And that I rely upon for the reasons I offered before upon that point Then the matter of this Petition is the taking upon them to censure the King and his Government by this Petition The Printing and Dispersing it is now publickly Scandalizing and Libelling the King for 't is in the nature of an Appeal to the people 't is unlawful to Print any mans private Case while it is depending in any Court of Iudicature before it comes to Iudgment because 't is an Appeal to the people And that was my Lord Chief Iustice Hales Opinion in Colonel Kings Case And the ill consequences of such proceedings are so many and the danger so evident in these Licentious days that I do not know indeed whether it may tend The fact is confessed by them in their Rejoynder but they say they did it to alleviate mens fears and quiet their minds absque hoc that they did it aliter vel alio modo Surely my Lord this is no sort of excuse in the world nor is it capable of any They have owned the thing but they have excused it in the manner of doing thereof And I may venture to say the Traverse is impertinent Suppose a Man be Indicted for publishing a Libel and the owns the Fact but doth traverse absque hoc that he did it malitiose or with an intent to defame that surely would be an idle thing for those are constructions that the Law puts upon it and are not matters traversable or to be put in issue But if the Fact be done the Law says 't is maliciously done and with such an intention Therefore a confession of the Fact is a confession of all the consequences that the Law puts upon the Fact My Lord this can amount to no less than the forfeiture of their Charter not only for the greatness of the Offence but because otherwise the Law would be unequal for if this were the Case of a private common Person he must be fined and imprisoned during the Kings pleasure as was the Case of Harrison in I.Cr. 503. for words spoken of Iustice Hutton Now my Lord a Corporation is not capable of suffering this Imprisonment and therefore 't is a much greater Offence in them as the Body is greater than any particular Member And then that which is a greater Offence would have a less Punishment if the Charter it self were not forfeited than it would if a particular Person were punished And give me leave to apply here the Reason of the Earl of Gloucester's Case that I cited before Quia Dominus Libertatis puniretur in eo quo deliquit So they shall lose their Charter for the abuse of that Power that was entrusted with them by their
Defendant or Plantiff in any Court My Lord Magna Charta and all the other Acts that have gone in confirmation of it shew the great care of the Government in all Ages to preserve the City of London and I look upon them as so many Declarations of the immortality of it and all other Corporations I shall use a strange Argument perhaps at first hearing but 't is to me a great Evidence for us that Magna Charta does not confirm our being but our Liberties and Priviledges it says That the City of London shall have all its Liberties it confirms its Léets its Markets and all those things that is it confirms all that it has it has not saved indéed if a Corporation indéed be built upon a Corporation but that particular Liberty may be destroyed as that of Bridewel and the like but it does more than confirm its being for it does implicitly declare That that was impossible to be forfeited They confirm what néeded confirmation but for their being there was no néed of that it only confirmed the supervenient Liberties with out which it might be a Corporation but as to its being it medled not with that And if it were not so it were an unreasonable thing that we should have so many Acts of Parliament that give such particular Powers to the Mayor and Commonalty of London and scarce any Act of Parliament that relates to the Publick but London is mentioned and taken care of in it Are not all these Declarations that London should stand for ever Would not any one have said else Pray what do you put such confidence in London for There is not such a fickle thing upon the Earth as the being of the Corporation of London If they lay but 6 d. upon a Ioynt of Meat they are gone and there is not a month in the year but they forfeit their being The Act for Administration hath a Proviso that says it shall not extend to London Why does any Man think that this Law was not intended to be as perpetual for London as for other parts of the Kingdom They did not question but London would be a Corporation as long as England was England It would be a strange thing in the Example of it that the World should be taught by one instance that a Corporation can be ruined when so many People put their Trusts in those Corporations and so many vast Inheritances depend upon them And I think the King and the Government or those you call so are more concerned to preserve London than all the Persons that are in it I would not speak it in this place by way of Argument for my Client but I think I could maintain it in all places only I hope and believe I shall have no néed for it My Lord All Innovations as this must certainly be a very great one are dangerous This Frame of Government hath lasted and béen preserved for many hundreds of years and I hope will do so as long as the World lasts My Lord I néed your Patience but I have just done Here is a Charge that is very little indéed there is nothing in the matter of it but the great consequences are fitter to be meditated on than spoken of And therefore for these Reasons I do pray That these Liberties may be adjudged to us and we may be dismissed out of this Court Termino Paschae next ensuing Mr. Justice Dolben being discharged the beginning of the Term and Sir Francis Withens in his place Sir Robert Sawyer Attorney General for the KING I. THIS Information is not brought for the taking away or destroying the Corporation for tho it be true that there be in it the words Et penitus excludatur yet that is but form the intention is only to prune and take away the Excesses and Abuses and therefore no danger of falling into such inconveniences as suggested on the other side In Rolls Abr. Tit. Prerog 204. It appears by Petitions in Parliament that London and Norwich and other Cities have had their Liberties seized into the Kings hands for some abuses and miscarriages in the Cities and sometimes restitution granted other times refused and answered that they were in good condition These Petitions were 13. 18. E. 1. The Liberties of the City are not intended to be destroyed but preserved and maintained and this Suit designed to that end II. That this Information brought against the Corporation by the name of Mayor and Commonalty and Citizens is good and well brought What is alledged against it out of my Lord Chief Iustice Hales his Book is not any opinion but a Nota upon the Case of Cusack And in the Case of Cusack the Iudgment is against the particular persons named alios Cives although not named But further It is not necessarily intended that though they are sued by the name of Mayor and Commonalty and Citizens that they are sued as a Corporation or Body Politique For by those words the Citizens and Inhabitants are comprehended and expressed and an Information lies well against Inhabitants or Citizens without naming any persons by particular name and there are divers Presidents of Quo Warranto's so brought Mich. 27. Eliz. C. Entries 537. Quo Warranto contra Inhabitantes Burgi de Denbeigh Quo Warranto they claim a Court of Record and other Priviledges Mich. 15. Car. I. Quo Warranto against the Corporation of Chard By 2 Car. I. the like name of the Corporation against Canterbury But 't is true that in these Cases are no procéedings to Iudgment But Trin. 6. Jac. Quo Warranto against the Corporation of New Malton and thereupon Iudgment is given against the Corporation III. Next that the Replication alledging Forfeiture is not repugnant to the Information for though the Forfeiture should determine the Franchise yet it remains not vested in the King until the Forfeiture appears upon Record by Office or Inquisition finding it or by Iudgment upon Information and therefore this Information well brought against the Corporation IV. That a Corporation or Body Politick may be forfeited is beyond all doubt A Corporation is a visible Body of Men and every of the Members thereof hath a Fréehold in it Sir James Baggs Case Co. Rep. 11. Co. Rep. 10. 14. That all their Acts are performed by natural Persons That all Corporations derive their Commencement from the Kings Grants 49 E. 3. 3. Br. Corporation 34. And are erected for better Government either of persons inhabiting within such a Township or place or that are of such a Trade or Mystery 1 Inst And the Books cited to prove that it is a Capacity do not prove it not to be a Franchise or Liberty But on the contrary all Books that speak of it agree it to be a Franchise Priviledge and Liberty which the Persons incorporate have by the name of their Corporation If then a Franchise or Liberty then nothing more common and certain That Franchises or Liberties abused are thereby forfeited 1 Inst
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
should be exhibited to the King in the Name of the Mayor Aldermen and Commons in Common Council assembled and set forth the Petition in the Name of the Mayor Aldermen and Commons in Common Council assembled in haec verba Wherein among other things it is contained That they were extremely surprised at the late Prorogation whereby the Prosecution of the publick Iustice of the Kingdom and the making provisions necessary for preserving the King's Person and his Protestant Subjects received Interruption And did farther agree and order That that Petition after it had béen presented should be printed which was so ordered with intent That false Reports concerning the Petition might be prevented The Enemies of the King and the Conspirators from procéeding in the Conspiracy deterred The Troubles in the minds of the Citizens alleviated and the Citizens know what had béen done upon their Petition That the Petition was delivered to the King and afterwards printed That this is the same Petition and Printing in the Replication mentioned absque hoc that any Petition of or concerning the Prorogation of the Parliament was made ordered published or printed in any other manner than they have alleadged as the Attorney General supposeth To this part of the Rejoinder Mr. Attorney hath demurred generally by the Demurrer the Fact alleadged in the Replication is admitted to be true And it is true that there are no words that are written or spoken but are subject to various Constructions But I take it that no words whether written or spoken ought to be taken in an ill sense if they may reasonably be taken in a better Nemo prefumitur esse malus and therefore the words must stand as they are penn'd and having first expressed their Feats and next their Hopes from the King and Parliaments procéedings in Trial of those that were Impeached and making Laws for their Security and how they were surprized at the Prorogation then they say That by that Prorogation the prosecution of the publick Iustice of this Kingdom and the making necessary provisions for the preservation of the King and his Protestant Subjects had received Interruption It is mentioned only as a consequence of the Prorogation 't is not said or expressed that the King did interrupt for I think there is great difference betwixt the one sort of expression and the other An ill Consequence may attend a good and commendable and most necessary Act but no Consequences can make an ill Act good and therefore the expressing the Consequence doth not necessarily condemn or declare the Act to be an ill Act. Suppose that in the time of the great Plague a man had had a Suit in Westminster-Hall wherein all his Estate had béen concerned and had said or writ That by the adjournment of the Terms by the King the Procéedings of the Courts of Iustice in his Suit had received an Interruption had these words béen punishable The adjournment was then the most necessary and commendable Act that could be for the preservation of the King's Subjects in that raging Pestilence and the Act it self being so good and necessary though there were such Consequence as to that particular Suit the writing or saying that it had such a Consequence such an Interruption did not I conceive condemn judge declare or express the Act to be ill Suppose a man had had a Bill depending in that Parliament to be Enacted for the enabling him to sell his Land to pay his Debts to free him from a Gaol Or suppose that some one of the Lords impeached in that Parliament had made a Petition for the Sitting of the Parliament and had therein expressed as a reason and ground of his Petition the like words as in this Petition What would the Court have judged of it are not the Cases much the same if they are there will be no distinction of persons in Iudgment I am sure there ought nor Perhaps when this Petition was made there might be too much heat in the minds of men and it is true that heat encreaseth heat and fire kindles fire 't is time for all sorts to grow cool and temperate and to weigh and consider we are or should be considering men This Petition was made Nemine contradicente and undoubtedly among such a number as the Common Council there must be men of variety of Tempers and Dispositions But for the greatest number of the Aldermen and Common Council think of them we know the men many of them can we imagine that they had either the least ill thought or meaning towards the King his Person or Government in this Petition or the printing it And as for the printing it that my Lord stands upon the same Reasons and Grounds For if there be nothing ill or unlawfull in it contained then the printing and publishing of that which contains nothing ill or unlawfull is not as I conceive ill or unlawfull Printing is but a more expeditious way of Writing and is good or bad as the matter printed is good or bad The Defendants in their Rejoinder have set forth their whole case the Reasons and Grounds of what the Common Council did and the manner and intent of their doing it all which Fact cannot be denied to be true but is now confessed by the Demurrer It hath not nor can be said but it is well pleaded and might have been traversed and denied if not true But it is confessed by the Demurrer to be true and therefore that must be taken to be the Fact and not as alleadged in the Replication and then so taken I submit it to your Iudgment 3. But the next thing considerable is Whether supposing and admitting that if done by the Body Politick it had been a Miscarriage or a Crime whether not being done by the Body Politick nor under the Common Seal but by Common Council whether thereby the Being of the Corporation shall be forfeit A Common Council in Corporations is generally a select number of the Body corporate constituted to advise and assist the Corporation in their ordinary affairs and business There is no certain Rule nor Measure of their Power wherein all the Common Councils agree In some Corporations the Common Council have greater authority in some less according to the several authorities by the respective Charters where the Corporations are by Charters or by Custome or Vsage where the Corporations are by Prescriptions But in all they are a subservient number of Men constituted and authorised for particular ends and purposes And in this case I think the Court can take notice of the Common Council no otherwise than upon the Record they appear to be The Replication doth not say what they are but would go in the dark by intention and presumption the best way and method to arbitrary Determination The Rejoinder saith that the Citizens and Freemen are a great number fifty thousand and more That there hath been time out of mind a Common Council consisting of the Mayor and Aldermen for
any Forfeiture Seisure of their Liberties or putting Officers upon them is quite another thing as I shall shew presently So that these general Sayings in Law-Books that Misuser of a Franchise forfeits the Franchise neither in Law or Reason extends to the being of a Body Politick or Corporation but is applicable only to particular Franchises of other natures and the other reason that that which is grantable is forfeitable is as fallacious as before appears 3. For the Records cited to prove that the Corporation or Body Politick may be Forfeited I will state those that are most Effective and doe them right therein Johannes Dennis Mayor of Sandwich P. 9. E. 1. and thrée more were attached to answer Domino Regi de placito transgr ' unde Robertus de Stokho Sheriff of Kent qui sequitur pro ipso Rege complains that he had sent his Bailiffs naming them to make Execution of the King 's Writ in Villa de Stanore qui est Barona domini Regis and that the Defendants with Swords drawn took away the King 's Writ and trod it under their feet and would not suffer it to be executed unde dicit quod deterioratus est damnum habet ad valentiam 2000 Marks The Mayor appears and pleads to the Iurisdiction that he ought not to answer this matter except in the Court of Shipway The Sheriff replies That Stanore is the King's Barony belonging to the Barony of St. Austins and relyes upon a Record before Iustices in Eire where an Amerciament upon that Vill ' was formerly set The Mayor refuseth to plead over Then a day is given over Then 't is entred thus Posteaque coram Domino Rege ejus Consil ' Quia Barones del ' Cinque Ports nec aliqui alii in Regno nostro possint clamare talem libertatem quod non responderent Domino Regi de contemptu sibi fact ' ubi Dominus Rex eas adjornare voluerit Et quia predict ' Barones non protulerunt aliquas Chartas a Regibus concessis in quibus non fuit excepta Regia Dignitas consideratum est quod respondeant quia le Defendants would not answer any other where than in Shipway consideratum est quod habeantur in defensionem pro convictis de predict ' Transgr ' Contempt ' Et quia the said John Dennis is convicted of the said Offence and the fact of the Mayor in those things which touch the Commonalty is the fact of the Commonalty consideratum est quod Communitas de Sandwich amittat Libertatem suam c. Then follows Postea in presentia of the Bishop of Bath and Wells then Chancellour and others cum Assensu Regis an Agreement betwixt the Abbat of St. Austins the men of Stannore and Sandwich de omnibus contentionibus And then goes a long Agreement betwixt the Abbat and the Men of Sandwich and Stannore concerning their Iurisdictions and Courts Et si aliqua pars contra concordantiam illam ire vel facere alia pars habeat suam recuperare per breve Domini Regis de Judicio exeunte de isto Recordo Et pro hac predict ' homines vadiant predict ' Abbati 100 Marks which the Abbat remits for 10 doliis Vini pretii 30 Marks to be paid at the Feast of St. John the Baptist This is the Record at large and for the Extract in the Collections at Lincoln's Inn whether it be of this Record or any Execution that went out upon it non constat But that I think it could not be upon this Record for the Record is not 30 Marks annuatim as the Abstract is and the Entry of the videtur at the conclusion quod Judicium extendit contra Barones Quinque Portuum eorum Libertates ut mihi videtur that is not my Lord Hales his Note nor doth it appear whose it was Out of this Record how can a man infer that a Corporation shall be forfeit for the Miscarriage of the Mayor or Officer how doth it appear from hence that they should lose or forfeit their being a Corporation By amittat Libertatem all that is meant thereby is their Liberty in Stannore or the Liberty they claimed to be impleaded in the Court of Shipway and the Note in the Extract videtur quod Judicium extendit versus Barones must be I think taken to be as to their Liberty in Stannore or to be sued only in the Court of Shipway I have taken the more notice of this Record because it hath countenance of a judicial Proceeding but as to all the other Records cited A Writ to the Sheriff of Gloucester reciting That the King 6 E. 2. r. Clau. Membr 5. for injuries and contempts done by the Mayor and Commonalty of Bristol the Liberty of that Vill ' by Bartholomew de Baddlesmere Custos of that Vill ' into his hands had seized The Writ commands the Sheriff that the Custos should have the Execution of Writs as the Mayor and Bailiffs used to have And the times of Henry the Third Edward the First Edward the Second and Richard the Second there were frequent Seisures of the Office of Mayor and the Kings did put in a Custos in the place of Mayor or made a Mayor and these are called Seizures of Liberties King Henry the Third put in a Custos over London 49 H. 3. which continued till the 54th of his Reign and then taken off and the City restored to its Election Edward the First put in a Custos 15 E. 1. and continued so to doe till the 25th Year of his Reign and then taken off The 14th of Edward the Second a Seisure of the Office of Mayor by Henry de Staunton and his Fellows Iustices in Eire in the Tower and Mayors put in by the King till the 20th of Edward the Second and then restored But for that of Richard the Second give me leave to digress and give you the state of it out of the City Registers which are more full than these cited A Writ from the King to the Mayor Sheriffs 16 R. 2. July 22. Lib. H. fol. 269. b City Reg. and Aldermen commanding them to come with twenty four principal Citizens before the King and his Council at Nottingham in crastino Sancti Johannis Baptist ' tunc prox ' sut ' and to bring sufficient authority from the Commonalty to answer such things as should be objected They appeared and had a Letter of Attorney ubi pro diversis defectionibus in Commissione suo sub communi Sigillo aliis de causis the Mayor and Sheriffs were discharged of their Offices and committed diversis Prisonis and afterwards the first of July Sir Edward Dallingrigg made Custos by the King came to the Guildhall and his Commission being read he was sworn before the Aldermen secundum quod Majores ante jurare solebant the King also made the Sheriffs and they were also sworn This is also entred in the City Register Lib.
H. fol. 270. b It appears that the King first swore the Custos 16 R. 2. r. Cl. M. 30. Ind. and the Sheriffs to be true to him and also turned out the Aldermen And that the Proceedings were before the Duke of Gloucester and other Lords by a Commission to enquire of all Defaults in the Mayor and Sheriffs in the well governing of the City awarded upon the Statute made by the King's Grandfather and that they were convicted by their own Confession and thereupon the Liberty of the City seised The Pardon and Restitution entred 19 Sept. 16. R. 2. Lib. H. fol. 272. a ubi supra and thereby 't is recited that the Proceedings were upon the Statute and the Iudgment was That for the first Offence they should forfeit one thousand Marks for the second two thousand Marks and for the third Offence that the Liberty should be seized The Statute 28 E. 3. cap. 10. enacted That the Mayor Sheriffs and Aldermen of London which have the Governance of the same shall cause the Errours Defaults and Misprisions in and about the same to be corrected and redressed from time to time upon pain that is to say to forfeit to the King for the first Default one thousand Marks the second Default two thousand Marks and for the third Default the Franchises and Liberties of the City shall be seised into the King's hands And that the Tryall of these Defaults shall be by Enquests of foreign Countries and the Pains levied upon the Mayor Sheriffs and Aldermen Vpon this Statute were the Proceedings of R. 2. grounded The other side have likewise much relied upon another Seisure made of the Liberties of the City of Cambridge A great Riot committed by the Town upon the Vniversity 5 R. 2. Rot. Par. N. 45. Inst 4. 228. heard in Parliament by way of Petition and form of Articles exhibited by the Scholars against the Mayor and Bailiffs Vpon reading of which it was demanded of them what they could say why their Liberties should not be seised After many Shifts they submitted themselves to the King's Mercy The King thereupon by common consent in Parliament seised the same Liberties into his hands as aforesaid and then granted divers Liberties to the Vniversities and certain Liberties the King granted to the said Mayor and Bailiffs and encreased their former These are the most substantial it would be too tedious to repeat all for there have been in those days but not since many like Seisures of Liberties as these only general but nothing particular to our purpose and though not cited I shall also mention those in Crook Certiorari to the Mayor of Fith they disobeyed the Writ Cr. 1. 252. Tyndals Case and gave scurvey Words and thereupon Mr. Noy cited two cases of Seisures of Liberties The Bishop of Durham had contemned the King's Process and imprisoned the Messenger An Information exhibited against him the Offence proved adjudged he should pay a Fine 33 E. 1. rot 101. quod capiatur and should lose his Liberties for his time because Justum est quod in eo quod peccat in eo puniatur Another in Banco Com' a Prohibition awarded to the Bishop of Norwich 21 E. 3. rot 46. and he excommunicated the Party that brought the Writ the Party brought his Action adjudged against the Bishop that his Temporalties should be seised till he absolved the Party and satisfied the King for his Contempt and that the Party should recover 10000 l. Damages I answer to them 1. They were all above three hundred years ago except that of 16 R. 2. which is above two hundred and ninety and no such thing ever done since what stress or weight can be given to such Proceedings To what Rules of Law since known or practised can we bring these Proceedings Are they now legal Precedents for the like things to be done The Writs out of old Records for the Ship-money and the Knighthood-money had as good Records to warrant them and much more plain to the purpose than these The Precedents of Edward the Second and Richard the Second either of their Lives or of their Deaths or of the Lives or Deaths of some of the Iudges of those days ought as I conceive to be no Examples And for H. 3. E. 1. E. 2. and R. 2. and those times they were times of great troubles and disorders and what was then done is no Rule or Precedent for this Court or any other Court of Iustice to go by unless by later times allowed or approved No Law-book or Report of any judicial Proceedings either of E. 2. or of E. 3. or any later Book of Law that I have yet heard of or met with and I doubt not but if there had been any the King's Counsel would have made use of them hath ever given so much credit or countenance to these Proceedings as to take any notice of them To make use of old Records or Precedents the Grounds or Reasons whereof cannot now be known to subvert any Law or Government established is neither advisable nor commendable But for answer to them Resp As to that of 16 R. 2. that you see is grounded upon the Statute 28 E. 3. c. 10. and can signifie nothing to the present purpose for there according to that Statute they condemn the Mayor Sheriffs and Aldermen upon their Confession that they had misgoverned the City The Mayor and Sheriffs being committed to Prisons and this done before Dukes and Earls by special Commission to that purpose appointed and convicted by their confession for the first second third Offense all at once Is this of good Authority in Law And for the others that of E. 2. was before Iustices in Eire at the Tower the Office of Mayoralty seised into the King's hands and replevied from year to year And that Seisure that was made by King E. 1. for what Reasons or Grounds or by what sort of Proceedings doth not appear all that doth appear of it is that de facto Custodes and Mayors were put upon the City but quo jure who can tell We know these times were times of trouble in the Barons Wars The Barons Simon Mountford Earl of Leicester being their General 48 H. 3. faught a Battel with the King at Lewes and took the King and Prince Edward the first both Prisoners The Barons differing among themselves 49 H. 3. and the Earl of Gloucester joined with the Prince who got out of Prison another Battel was fought at Evisham and the great Earl Mountford slain and then at Winchester by Paliament all his Party and the Liberties of the City of London seised and in such times as these and which followed in E. 1. E. 2. and R. 2. it is not to be marvelled if there were many Seisures and Custodes put on the City 't is more a marvel they were not destroyed The Statutes made in these times shew not only the Disorders but that the Liberties mere greatly
by H. 4. H. 5. H. 6. in the times succeeding all confirm their Privileges not a word of granting new Privileges but confirm the old which shews plainly that in those days the Corporations were not thought or imagined to be determin'd or dissolv'd By these Seisures or supposed Forfeitures the enjoynment or possession for the space of thrée Hundred years is evidence sufficient of their remaining and being Bodies Politick by Prescription which they could not be if they were forfeited as pretended For by Forfeiture they must mean the losing their Corporation or being divested no other sense can be or ever was of Forfeiture Could they forfeit them and yet keep them Could they lose them and yet have them if they could not then 't is plain that since they always have had them they never forfeited or lost them But for farther Evidence hereof I shall make most plainly to appear That during the very times of these Seisures the Corporations remained and acted as Corporations and that at that time it was never thought or imagined that during the Seisures the Corporations were forfeit all that was done was that the Election of their Mayor or of their Sheriff was de facto taken from them and either a Custos or a Mayor by the King put over them and continued till those Kings displeasures were over and then they chose these own Officers again But no thought then of forfeiting the Corporation By the City Books as well as Records this is most evident The putting a Custos by King E. 1. continued for the space of Eleven years from the 15 E. 1. to the 26 E. 1. and then they chose their Mayor again By the City Books it appears that their Court of Hustings all along continued as at other times Lib. A. fol. 50 51. 135. Aldermen all along Radulphus de Sandwyco Custos Civitat ' London 18 E. 1. Henricus le Walleys and others Aldermen naming them universales Communia ejusdem Civitatis make a Conveyance of an House to John de Bangwell The Court of Aldermen holden before the Custos and Aldermen 18 E. 1. Lib. A. fol. 110. With the King's Remembrancer in the Exchequer 16 E. 1. r. 1. Cives London venerunt coram Baronibus presentaverunt Johannem de Canluar ' Willielmum de Betoyne ad respondend ' pro Civitat ' predict ' Com' Middlesex de his quae ad Officium Vicecomitis pertinent ad hoc faciend ' prestiterunt Sacramentum Ibidem 18 E. 1. Ro. 1. The Presentment and Swearing two other Sheriffs Ibidem The like 21 E. 1. Ro. 3. Ibidem The like 23 E. 3. Ro. 3. 21 E. 1. Lib. C. fol. 19. b. Auby le Artheir attachiatus fuit ad respond ' Communitat ' Civitat ' London ' de placito for that he being no Fréeman Merchandized in the City Another like Suit against an Vn-fréeman Lib. C. fol. 7. b A Writ of Right in the Hustings 22 E. 1. brought by the Corporation Communitas Civitat ' London per Radulphum Pecocks Attornatum suum petit versus Hugonem Episcopum de Bedlam unum Messuagium c. All the Aldermen 26 E. 1. Lib. E. fol. 38. and twelve Citizens were called before the King and his Council and the King restored them the Election of their Mayor and they chose Henry de Gabeys Mayor And on Monday following comes the King 's Writ whereby the King for good Services Reddidimus Restituimus Civibus London Civitatem una cum Majoritate libertatibus suis quas certis de causis dudum capi fecimus in manum nostrum So that hereby it most evidently appears the Corporation was not forfeit lost or dissolved only a Cuilos put over them which acted in the place of Mayor and when removed they chose their Mayor again The Liberties not forfeit only seised into the Kings hands so saith the Writ dudum capi fecimus in manum nostrum The Record of Cambridge I have looked upon It plainly appears in it that the Corporation was not forfeited and dissolved as you suppose For it appears that when they submitted to the King to doe with their Franchises what he pleased yet it was salvo to the Mayor and Bayliffs their response to all other Matters And afterwards at the same time the King grants to the same Mayor and Bayliffs divers Liberties by which it appears that the Corporation was not forfeit but still in being notwithstanding the Seisure and Forfeiture 14 E. 2. The Seisure that was by King Edward the Second was in no sort any Forfeiture or Determination of their Corporation but either under a Custos or under a Mayor put in by the King Lib. E. fol. 11. b The Custos Aldermen and Commonalty appeared and turned out some of their Aldermen Lib. D. fol. 6. They chose and swore their Sheriffs and by this time they had a Mayor again but the Office of Mayoralty granted them by the King 16 E. 2. Lib. E. fol. 146. The King grants to Nicholas de Farringdon the Office of Mayor quamdiu nobis placuerit 20 E. 2. They had a Writ restoring to them the Office of their Mayor again 16 R. 2. Then for the Seisure of R. 2. that continued but from the 22d of July unto the 19th of September following and the form or colour of Law that they had for that was the Statute of Edward the Third 28 E. 3. and the Custos put in sworn at Guildhall and took the Oath of the Mayor Lib. H. 269. b. 16 R. 2. as appears in the Book which I cited where it is mentioned to be upon that Statute But for farther Evidence In the Treasurer's Remembrancers Office in the Exchequer 4 E. 3. rot 2. in Bago de Quo Warranto in Itinere Northampton Bedford Quo Warranto versus Villam de Bedford in that Record are these things First That the Village of Bedford had not at the last preceding Eire made claim of divers Liberties and thereupon in that Eire adjudged quod omnes Libertates non clamat ' capt ' fuissent in manus Domini Regis and had not been replevied but Corporation not seised Thereupon the Corporation offer a Fine of 8 Marks to the King pro licentia clamandi their Liberties and admitted to fine But then it appeared that the Mayor and the Coroners had sat in Iudgment and condemned men for Felonies committed out of the Iurisdiction and thereupon Consideratum est quod predict ' Libertas de Infangtheife Officia Major ' Ballivorum Coronatorum ejusdem Ville capiant ' in manus Domini Regis Sed quia caetere Libertates consuetud ' Ville predict ' absque Ministris pro communi Utilitate Populi ibidem nequeant conservari the Court puts Johannem de Tound Custos Johannem Wymound and Richardum Rounds Bailiffs and Nicholas Astwood and William de Knight Coroners who are all sworn
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