THE CASE OF THE CHARTER OF LONDON STATED SHEWING I. What a Corporation is II. Whether a Corporation may be Forfeited III. Whether the Mayor Commonalty and Citizens have done any Act in their Common Council whereby to Forfeit their Corporation and Franchises LONDON Printed for John Kidgell at the Golden Ball near Grays-Inn Gate in Holborn 1683. THE CASE OF THE CHARTER OF LONDON STATED c. AN Information against the Mayor and Commonalty and Citizens of the City of London for Vsurping of divers Franchises and Liberties within the said City and for assuming to themselves an unlawful Power to Levy several great Sums of Money as well upon the said Citizens of London as Strangers and in particular upon those which come to the Markets of the said City by Colour of the Laws and Ordinances in their Common Council by them in Faâ—â— Ordained and Established without any other Right or Authority And for that the said Mayor and Commonalty and Citizens in their said Common Council Assembled did Vote and Ordain that a certain Petition under the Name of the Mayor Aldermen and Commons of the City of London in their Common Council Assembled should be exhibited to our Lord the King that now is Maliciously Seditiously and to the intent that the same Petition might be Published and dispersed abroad amongst his now Majesties Faithful Subjects to induce them into an Opinion that our said Lord the King that now is by Prorogation of the Parliament had Obstructed the Publick Iustice of the Kingdom and to induce the same Subjects of our said Lord the King that now is to the Hatred of the Person of our said Lord the King and of his Government Established in this Kingdom and to disturb the Peace and Tranquillity of this Kingdom of England they did then Ordain that the same Petition containing the said Scandalous and Seditious Matter should be Imprinted and afterwards to the intent that the same might be Published and dispersed amongst the Subjects of our said Lord the King that now is to alienate and divert their Affections from our said Lord the King and from his Government they Maliciously and Advisedly and Seditiously did Print and cause to be Imprinted and Published to the Contempt and Scandal of our said Lord the King and of his Government of this Kingdom of England and to the raising and promoting of Sedition and Disturbance of the Peace and Tranquillity within this Kingdom of England and to the pernicious Example of others His Majesties Subjects In the Disquisition therefore of this Case WE shall Consider 1. What a Corporation is 2. If a Corporation may be Forfeited 3. If the Mayor and Commonalty and Citizens have done any Act in their Common Council whereby to Forfeit their Corporation and Franchises A Corporation is either Sole as Bishop Parson 39 H. 6.14 7 E. 4.12 or Aggregate as Mayor and Commonalty A Corporation Aggregate is a Lawful Society of a cerrain Number of Men Constituted by the King with divers Liberties and Priviledges 11 H. 7.27 Fitz grant 30. Summa Hostiensis Fol. 60. All Corporations have their Origination and Essence from the King otherwise it 's an Illegal Society contrary to the Laws and Statutes of the Kingdom 9 H. 6.16 b. Lib. 10. Fol. 26 33. Inst Part 3. Fol. 202. Lib. 8. Fol. 125. One Corporation cannot make another by Usage or Prescription 49 E. 3. Fol. 3.29 Ass 8. Brok. Corporation n. 45. Neither can the King give License to any one to make a Corporation Lib. 10. Fol. 27. b. But one Corporation may be made out of another by the King 9 E. 3. Fol. 18. The King may if he pleaseth make a limited Corporation or a Corporation to a special purpose as to take and not to give or Conditional to pay Rents c. P. 11. Jac. en le Excheq St. Saviours Case 21 E. 4.59 2 H. 7.13 Dy. Fol. 100. a. If the King grants Hominibus De Dale to be quit of Toll they are a Corporation to that purpose 21 E. 4.55 56. The King grants Civibus de Norwico quod non ponantur in Juratis c. the grant is good and makes them a Corporation 21 E. 4.55 56. 2 H. 7.13 7 H. 4.44 When a Corporation is rightly Created all Incidents are tacite annexed to it Lib. 10. Fol. 30. b. Sr. Saviours Case If the King Creates a Corporation and doth not give any express Power in the Letters Patent to make Laws or Ordinances yet this Power is incident to the Corporation and is included in the very Act of Incorporating as is also the Power to Sue to Purchase and the like but these Laws ought always to be subject to the Laws of the Realm as Subordinate to it Hob. Rep. Fol. 285. Therefore every Law made by any Corporation ought to be 1. Remedium Congruum a fit Remedy to redress the Mischief 2. Bonae fidei rationi Consonum Consonant to Justice and right Reason 3. Pro Communi utilitate Civium aliorum fidelium domini Regis for the Publick Profit of the Citizens and other the good Subjects of the King and therefore Ordinances or Laws by them made pro privato lucro and not pro bono publico for private Advantage and not for the publick Good are void Lib. 5. M. 32. 33. Eliz. BR Chamberline de Lond. Case Hob. Rep. Fol. 212. P. 14. Jac. Rot. 907. Norris Stamp A Franchise or Liberty is a Royal Priviledge in the Hands of a Subject of some Benefit Power or Freedom that Persons or Places have above others Crompt Juris Fol. 241. Franchises are real or Personal Franchises Real are Priviledges annexed and given by the King to some Place as County Palatines Corporations Lamb. Eiren. lib. 1. c. 9. Plowd Fol. 123. Crompt-Juris 137. Franchises Personal which are granted by the King to some Person or Persons as Exemption from Juries from Toll 21 E. 4.55 56. All Franchises were Originally derived from the Crown but now by continuance of Time are Claimed and had in some Cases by Prescription Inst Part 1. Fol. 114. Lib. 9. Fol. 23. Boulst Part 1. Fol. 57. Part 2. Fol. 235. Mores Rep. c. 918. If a Corporation Claims some Priviledges by Charter and others by Prescription and so conclude Et eo Warranto uritur it 's good in Law Mores Rep. c. 443. Amongst Franchises some are more Royal as the Franchises of Counties Palatines c. Others less Royal as Markets Fairs c. Of these some lye in doing as to make Justices of Peace to Pardon Felonies c. Some lye in having as the Goods of Felons of Fugitives Wayses Estrays Dy. Fol. 44. Plowd Com. Fol. 169. Others do lye in Discharge as Exemption from Payment of Subsidies c. Henry the Sixth by his Letters Patent 20 H. 6. Granted to Corpus Christi Colledge in Oxon that they and their Successors and their Tenants should be discharged of Payment of Toll for Pontage and Passage in every Place within England
Fol. 204. Because the Men of Southampton did beat and Wound even to Death Gilb. Canon who did Execute the Mandate of the King in that Town for the Offence and Transgression of the said Town the said Town was seized into the Kings Hands and they paid a Fine and their Fee-Farm Rent was advanced to 20 l. per Annum Mandatum est Guilielmo de Haverhall Thesaurario Regis quod Civitas London Capiatur in manum Regis eo quod Cives ejusdem Civitatis non tenuerunt Hutesium clamorem Secundum Legem consuetudinem Regni Teste Rege apud Wondestock 22 die Augusti Rot. Claus 30. H. 3. m. 5. Inst Part 3. Fol. 118. William de Haverhall Treasurer of the King is Commanded that the City of London be seized into the Kings Hands for that the Citizens of the said City did not make Hue and Cry according to the Law and Custom of the Kingdom 29 E. 3. the Liberties of the City of Oxford seized for a Riot and part of them granted to the University which they do enjoy to this day Rot. Claus 29 E. 3. m. 9. And in the 32 H. 3. the Liberties of the City of Oxford were seized into the Kings Hands 32 H. 3. m. 18. The Liberties of the Mayor Bayliffs and Commonalty of Cambridge were seized into the Kings Hands for that in the late Tumults and Uproars there they and other mis-doers did break up the Treasury of the University of Cambridge and thereout take and burned sundry the Charters c. of the said University and for that they compelled the Chancellor and Scholars of the said University under their Common Seal to release to the said Mayor and Burgesses all manner of Liberties and also all Actions Real and Personal and further to be bound to them in great Sums of money And the King did grant unto the Chancellor and Scholars aforesaid within the said Town of Cambridge and Suburbs of the same divers of the said Liberties that is to say the Assize Conusance and Correction of Bread all Weights Measures Regrators and Fore-stallers with the Fines and Amercements of the same Rot. Parl. 8 R. 2. n. 11. Inst Part 4. Fol. 228. 31 E. 1. The Liberties of the City of Winchester were seized and after upon their Petition and a Fine paid they were restored 31 E. 1. Rot. T. C. Jac. Rot. 3. The Liberties of Newmarket in York-shire seized and part of them never re-granted 9 E. 1. The Liberties of the Corporation of Sandwich seized and Judgment quod amittant libertates Vide m. 18. E. 3. Rot. 62. B R. en Talley Office Vide Rot. Claus 15 E. 2. m. 2. Pat. Rot. 20 E. 2. m. 5. Claus Rot. 16 R. 2. m. 30. Cl. Rot. 22 H. 6. m. 21. m. 16. Carol. 1. where the Liberties of divers Towns were seized Judgment given that the Liberties of the Town of Barkenstead in Hartfordshire should be seized The Liberties of London seized for giving of false Judgment in the Hustings 28 E. 3. c. 20. Punishments of the defaults of the City of London and their Franchises to be Forfeited upon their default Rex amovit custodem Hospital de suo Patronatu quia male dispendit prosicua domus 9 E. 3. Lib. 11. Magdalen Colledge Case If a Bishop cut down all the Timber and Trees of his Bishoprick he is to be Deposed as a Delapedator 2 H. 4. Fol. 3. Lib. 11. Liffords Case The Colledges of the Templars in the Reign of Philip the Fair of France for their Insolency Oppression and Misdemeanors were all Forfeited and seized into the Kings Hands the like was used against the Corporations and Societies of the Jews as well in France under Dagobert Philip Augustus and Philip the Long as afterwards in Spain under Ferdinando King of Aragon and Castile Bodin Repub. Lib. 3. Fol. 383. Kelway 6 H. 8. Fol. 169 170. Regist 20. Inst Part 2. Fol. 432. The Corporation or Community of the City of Corbeil in France was Forfeited and seized into the Kings Hands Bodin Repub. Lib. 3. Fol. 373. And therefore Offences done by a Corporation Collegiately Assembled the whole Corporation is Punished by loss of their Priviledges or of the Right of their Community Bodid Lib. 3. Fol. 373. A Prohibition went to the Bishop of Norwich and he Excommunicated the Party that brought this Writ thereupon an Action of the Case was brought against the Bishop and so set forth the whole Matter and it being found against the Bishop it was adjudged that his Temporalities should be seized untill he Absolved the Party and satisfied the King for the Contempt 21 E. 3. Rot. 46. The Bishop of Duresin pretending that he had a Priviledge that the Kings Writ was not to come there and because one brought it thither he Imprisoned him and this being Proved by Information against him it was adjudged that the Bishop should pay a Fine to the King and lose his Liberties 31 E. 1. Rot. 18. Crok P. 8. Car. Fol. 253. By the Stat. 13 Eliz. c. 12. Subscription is required of the Clergy if they refuse to Subscribe the Parties are disabled and ipso facto deprived Inst Part 4. Fol. 324. Disapidations is a fault for which the Incumbent may be deprived 29 E. 3.16 20 H. 6.46 9 E. 4.34 By the same Reason if a Corporation doth Abuse or Mis-use their Franchises they do lose them for there is a Condition in Law annexed to them that they shall rightly use them otherwise they shall be Forfeited If a Corporation may be Dissolved then it may be Forfeited but a Corporation may be Dissolved ergo Forfeited for the Liberties being seized into the Kings Hands they are Extinct Anno 34 H. 8. the Hospital of St. John of Jerusalem and divers Monasteries were Suppressed and Dissolved and their Possessions vested in the Real and Actual Possession of the King When the Religious Persons of Abbies or Monasteries are detained and they have lost their Habit Rule and Order then the Corporation is absolutely dissolved Davyes Rep. 11. Case de Rroxies Fol. 1. b. If Lands be given to a Dean and Chapter or to a Mayor and Commonalty and to their Successors and after such Body Politique or Incorporate is Dissolved the Donor and his Heirs shall have again the Land and shall not Escheat and the Reason is because the Fee is vested in their Politique Capacity and therefore the Law doth annex a Condition to every such Gift and Grant that if such Body Politique be Dissolved the Donor shall re-enter for that the cause of the Gift faileth Inst Part 1. Fol. 13. b. Brok. Corp. n. 78. Object But it may be Objected that a Corporation aggregate is immortal invisible and never dyes 39 H. 6. 14. a. 21 E. 4.27 Answ It 's Answered that a Corporation is Immortal not in Thesi for we see they have their ortus and occasus but in Hypothesi in respect of their perpetual Succession and because it s presumed they will do no Act to
Dissolve them or commit any Offence by which they may Forfeit their Right of Community If a Corporation consists of Brothers and Sisters and afterwards all the Sisters are dead all the Grants and Acts made by the Brothers are void for when the Holy Sisters are dead it 's no perfect Corporation m. 37 Eliz. B R. the Case inter Serjeant Lovelace and Manwood Rolls Abridg. Fol. 514. But suppose all the Brothers should likewise dye where is the Immortality of the Corporation Though a Corporation cannot be granted over or assigned to any Person or Persons yet it may be surrendred to the King for a Corporation hath its Origination and Essence by the Charter of the King by the surrender of their Charter the Corporation is gone For after surrender of their Charter if they use their Franchises they are Usurpers upon the King and if a Quo Warranto be brought against them what can they Plead their Charter being surrendred Must they not submit to such a Fine as shall be imposed upon them If a Corporation may surrender its Charter it may by mis-user or abuser Forfeit its Charter and if the Charter by which they are Incorporated be Forfeited where is the Corporation Is it not translated into Aristophanes City in the Clouds for now it is Invisible Object But it may be Objected that if a Corporation doth surrender all its Lands and Franchises unto the King yet the Corporation doth remain for the Dean and Chapter of Norwich 2 E. 6. did surrender to the King their Church and Possessions and he Incorporated them by the Name of Dean and Chapter c. Sanctae individuae Trinitatis Norw ex fundatione E. 6. and re-granted to them their Church and Possessions by the Name of Dean c. omitting ex fundatione Regis E. 6. And it was adjudged the Ancient Corporation remained Answ It 's Answered That by their Incorporation of Henry the Eight they were to be Dean and Chapter of the Bishop of Norwich and therefore to be of his Council to Advise with them about the determination of difficult Points and Controversies of Religion and also to give their consent to every Grant which the Bishop should make to bind his Successor For it was thought by Henry the Eight not to be Reasonable to impose so great Confidence in any sole Person as to give him Power to bind his Successor and therefore without the consent of the Bishop he having an Interest in them as a Corporation to be his Counsel the Dean and Chapter without the consent of the Bishop could not surrender their Corporation but shall remain as long as the Bishoprick continue Lib. 3. m. 40 41. Eliz. Dean Chapter de Norw Case Object Civitas London habeat omnes libertates suas antiquas consuetudines Mag. Ch. c. 9. The Liberties of the City of London for any Cause shall not be taken into the Kings Hands Rot. Parl. 1 E. 3. Authoritate Parliamenti Inst Part 4. Fol. 253. Answ That the City of London shall have its Ancient Franchises and Frank Customs it 's Excellently Interpreted by our Ancient Authors that the Citizens of London shall have their Franchises of which they are seized by a Rightful and Loyal Title of the Gifts Grants and Confirmations of the Kings and which they have not Forfeited by their Abuser or Mis-user and that they have those Franchises and Customs which are sufferable by Right and not Repugnant to Law Inst Part 2. Fol. 20. Mirror Ch. 5. § 2. Fleta Lib. 2. c. 48. Plowd Cont. Fol. 40. And it doth appear by the Authorities abovesaid that for Abusion the Franchises of the City of London may be seized And whereas the Act 1 E. 3. saith that the Liberties shall not for any cause be seized c. it must be understood that for any cause that is not reasonable or at the Kings Pleasure they shall not be seized The Citizens of London were before and after the Conquest Governed by Portgraves or Portgreeves until the Reign of King Richard the First by whose Charter they were Governed by two Bayliffs But King Richard the first Year of his Reign appointed them a Mayor who continued therein until the Eight Year of King John and then King John appointed a Mayor and because sometime the Mayor appointed by the King was no Citizen of London King John the Tenth Year of his Reign Granted to the Citizens Liberty and Authority to chose a Mayor De seipsts Inst Part 4. Fol. 255. 7 R. 2. it was Enacted that the Aldermen of London shall not from henceforth be Yearly chosen but shall remain till they be put out for Reasonable cause notwithstanding the Ordinance of Edward the Second and Edward the Third So that by this Act it doth appear that for Reasonable cause an Alderman might be put out Rot. Parl. 7 R. 2. n. 25. So that by the Authorities above-said it doth appear that a Corporation is a Franchise and that a Franchise may be Forfeited and by consequence a Corporation 3. If the Mayor and Commonalty and Citizens have done any Act in their Common Council whereby to Forfeit their Corporation and Franchises wherein we shall Enquire 1. Whether the Quo Warranto be well brought against the Mayor and Commonalty and Citizens c. or ought not the same to have been against particular Persons 2. How far the Acts of the Common Council shall bind the Corporation 3. What those Acts were 4. If they amount unto a Forfeiture of the Franchises and Liberties 1. It 's conceived that the Quo Warranto is well brought against the Mayor and Commonalty and Citizens of the City of London without naming any Persons in particular for by that Name they ought to Plead and be Impleaded c. An Action was brought against the Masters and Scholars of New Colledge in C. and well brought 15 E. 4. Fol. 33. a. Quo Warranto versus le Corporation de Maydenhead in Barkshire quod Gardiani Pontenarii Burgenses Communitas de villa de Maydenhead for three Years have used a Market with divers Liberties H. 17. Jac. B R. Rot. 106. in Coron Office Palmer's Rep. Fol. 80. An Action upon the Stat. of Winchester was brought against the Men Inhabitant in Hundredo de Elthorn and Spelthorn without naming any particular and well brought T. 12. Jac. Fosters Case Huttons Rep. Croke Part 2.187 Noys Rep. Fol. 21. An Action versus Inhabitantes in domidio Hundredi d'Waltham and adjudged good T. 15. Jac. Rot. 2244. Constables Case Brownl Part 1. Fol. 156. An Action was brought against Dean and Chapter without Naming them by their Names of Baptism so if Dean and Chapter bring an Action 21 E. 4.15 An Action upon the Stat. of Winchester and 27 Eliz. Versus homines Inhabitantes de D. Rastal Entries Fol. 406. If the King grants Land in Fee Probis hominibus villae d'D it 's a good Corporation and so if he grants Lands Burgensibus Civibus Communitati to the
of all the Free Men and Citizens of the City of London they must in a more eminent degree bind the Corporation We shall Observe 4. What those Acts were 1. The said Mayor and Commonalty and Citizens of the said City of London have assumed an unlawful and unjust Power and Authority to Levy Money of the Subjects of our Lord the King to the proper Use of the said Mayor and Commonalty and Citizens assumed by colour of the Laws or Ordinances by them in Fact Ordained without any other Right Title or Authority and in particular in their Common Council Assembled they did make and publish a certain Law by them in Fact Enacted for Levying several Sums of Money of all His Majesties Subjects and Liege People as well Free as not Free men of the said City and of other Foreigners at the Publick Markets held within the City aforesaid coming thither to Sell their Victuals and Provisions 2. That the said Mayor and Commonalty and Citizens of the said City in their Common Council Assembled without any Legal Authority did assume upon themselves to Censure and Judge our said Lord the King and the Prorogation of the Parliament and then and there being so Assembled in their Common Council did Vote and Ordain that a certain Petition under the Name of the Mayor Aldermen and Commons of the City of London in the Common Council Assembled should be exhibited to our said Lord the King in which Petition there was contained that by the said Prorogation of the Parliament the Prosecution of the Publick Justice of this Kingdom and the making necessary Provision for His Majesties Protestant Subjects was obstructed And they did Order the Imprinting of the same and caused the same to be Published and dispersed We shall enquire whether these Laws and Ordinances made by the Mayor and Commonalty and Citizens of London be Warrantable by Law or not I do agree that they have Power to make Laws and Constitutions for the well Government of the City 22 Ass Part 34. But Ordinances which are contrary to the Publick Good which is the scope and great End of all Laws for Salus Populi est Suprema Lex are injurious or prejudicial to a multitude and beneficial only to some particular Persons such Ordinances are repugnant to the Law of Reason to which they ought to be subordinate and by consequence void And most of the Ordinances and Constitutions which by the Common Law have been adjudged void as being unreasonable against common Right or purely against Law if their Nature and Quality be considered they have been found injurious to a multitude and prejudicial to the Common-wealth and to have had their commencement and continuance by Oppression and Extortion 1. They have made a Constitution and Ordinance to Levy several great Sums of Money as well upon the said Citizens of London as Strangers which come to the Markets of the said City with Victuals c. These Sums of Money Levyed by them could not be Levyed for Toll Pickage or Stallage incident to their Markets or due by Prescription they do not pretend it to be but by an Arbitrary Power without any Right and against Law they have Levyed the said Sums Every Oppression against Law by colour of any Usurped Authority is a destruction within Magna Chart. c. 29. and it 's the worst of Oppressions that is done by colour of Justice If the King de novo doth grant a Fair or Market Toll doth not pass as incident to it without special words Kelloway Fol. 138.145 11 H. 6.19 9 H. 6.45 T. 38. Eliz. Rot. 936. Heedy Weldhouse And the Reason is because it 's but a private Profit against common Right If the King doth grant a Market with Toll if he doth not appoint how much shall be taken for Toll the Grant is void For when the King doth create a Market and grant such things which may be chargeable to the Subject the Law presumes that the King granted it Pro bono publico and the Subject had Quid pro Quo and greater henefit by it But it 's against all reason to give power to any Subject to impose so much as he pleases upon another by Toll or other Duty and the rule is given Lib. 11. f. 8. in the Case de Monopolies that every Grant and Grievance to the prejudice of the Subject is void 13 H. 4.14 15. Kelloway temps E. 3.1 34. 30 E. 3.15 1. and expresly 9 H. 6.45 it is That in a Prescription for Toll it ought to be set out how much had been used to be taken for Toll 11 H. 6.19 Book tit Patent 11.12 When the King erects a Court he ought to appoint Officers and not the Patentee so that there be no oppression or extorsion 14 E. 3.13 14. In the 13 H. 4. the Commons complained in Parliament that an Office was erected for Measurage of Clothes and Canvas with a new Fee for the same by colour of the Kings Letters Patents and prayed that the said Letters-Patents might be revoked For the King could erect no Office with new Fees to be taken of the people who may not be so charged but by Parliament The Royal Answer of the King in Parliament was That the Statutes therefore provided should be observed Rot. Parl. 13 H. 4. n. 43.13 H. 4. fol. 16 17. King Edwrd the Third had granted to Robert Polcy a new Office of Measuring Worsteads with a new Fee at the petition of the Commons it was resolved in Parliament to be void and afterwards revoked as void by Authority of Parliament Rot. Parl. 22. E. 3. n. 31. Rot. Parl. 25. E. 3. And by the Stat. 34 E. 1. all Burthens or Charges put upon the Subject by the King either to or for the King or to or for any Subject by the Kings Letters-Patents or other Commandment or Order is prohibited unless it be by common consent in Parliament 1 Inst Part. 2. fol. 534. If the King cannot put or impose any Burthen or Charge upon the Subject but by their assent in Parliament From whence do the Mayor and Commonalty and Citizens of London derive their Power and Authority to set and impose such Sums of Money If from the King that Power and Authority is against the 29 ch of Mag. and the Statute of 34 E. 1. If by Prescription that Prescription is against the said Statutes and so void in Law therefore it 's an usurpation of an unlimited Power and contrary to Law and Justice and a just cause of forfeiture of their Corporation And that which adds to the Superinjustice of their actings as they have imposed these sums of Money upon the Kings Subjects so they may at their wills and pleasure impose what greater sums of Money they shall think fit Richard D'Wakyes did distrain William de Hay for that he did hold of him certain Lands apud Lin de faud by the service of 10 s. Et per tallagium ei faciendum ad voluntatem ipsius Richardi
quia ipsum Willielmum talliavit Anno Regis 9. una f. vice ad 2 s. atia vice Anno 10 18 d. quod tallagium ei à retro fuit pro proedictis 2 s. per Annum ipsum Willielmum distrinxit super feodem suum pro proedictis arreragiis Adjudged that the Tallage of 2 s. and 18 d. or any other sum uncertain And because it was to be at the will and pleasure of the said Richard D'Wakyes 't was against the Statute of 34 E. 1. and so void M. 11. E. 1. in Banco Rot. 49. Sussex A Custom that the Lord of a Mannor shall detain the Distress taken upon his Demesnes until a Fine be paid unto him for the damage at his will is void Davys Rep. fo 33. a. 2 H. 4.24 and because he is Judge in his own case 5 H. 7. fo 9.44 E. 3. fo 19. An Action of Trespass was brought for carrying away of certain Trees The Def. pleaded a Custom that he of the Tenants of the Mannor which first came to the place when c. should have all the Windfalls there Adjudged that this Custom was void for the incertainty and the reason given was that that lieth not in Prescription which lyeth in the will and pleasure of man for the will of man is uncertain 14 E. 3. Fitz. Batt 277. And this Ordinance of the Mayor and Commonalty and Citizens doth not onely extend to his Majesties Subjects within the City of London but unto Forainers and Strangers which shall come to their Markets within the said City which is not only against Law but a very high breach of their trust which his Majesty hath reposed in them and a misuser and abuser of their Franchises The Lord of a Mannor prescribes to have of every man which breaks the Pound of the Lord there 3 l. the Prescription is not good because Strangers cannot be bound by it 21 H. 7.40 11 H. 7. fo 14. a. 21 H. 7. fo 20. And any Town may make a By-law amongst themselves that no man there shall put their Cattel within the Commons before Michaelmas upon pain of 20 s. adjudg'd that that binds them but no Strangers shall be bound by it 20 H. 7.40 11 H. 7. fo 14. 21 H. 7. fo 29. And therefore that Ordinance or By-law made by the Guardians and the Fellowship of Weavers of Newbury That no person should use the Art of Weaving within the said Town of Newbury except he had been an Apprentice to the Art within the said Town and had used it there by the space of five years before the said Ordinance or were admitted by the Guardian and Fellowship upon the pain of 20 s. a month is void because it excludes Strangers though they have served as an Apprentice for 7 years to the said Art and because it did restrain the Liberty of the Subject Hol. rep fo 211 212. This Ordinance made by the Mayor and Commonalty and Citizens of London in their Common-council assembled is against Law it restrains the Kings Subjects in their Liberties which are their rightful Inheritance Every one that comes to their Markets with Victuals c. without which they could not subsist must pay c. if not they must be turned out c. Solve aut abi this is pro privato lucro But that Ordinance for carrying their Broad Cloth before sale thereof to Blackwel-hall to be searched was pro hono publico and for that reason did oblige Strangers that did not bring their Cloth to be searched lib. 5. Chamberlain of Londons Case Money cannot be raised or charged upon the Subject but by Act of Parliament If the King himself cannot do it I am sure no Corporation can having no power Authority or Jurisdiction but what is originally derived from him It 's not the quantity of Money levied by them but the manner of the raising of it by a Legislative Power unjustly usurped in their Common-council It was not the quantity of the Ship-money but the raising of it without a Parliament which was the Crime Quos una culpa nectet eos una poena plectet and that must be the Seising of their Liberties A Man takes two pence for every Barrel of Beer which shall be Landed at a certain place near to the Sea this is not lawful although it be upon his own Land for this is to Levy a new Custom which he could not do Rolls Abridg. tit Proerogat fol. 571. An Information was against Morgan for raising of two pence for every parcel of Beer landed at Crockernepit in the County of Sommerset near Bristol he was found guilty was Fined one hundred Marks and imprisoned by Judgment of Court upon one of the Articles in Eire That it shall not be lawful for any person to raise a Tax Rate or Custom upon the Subjects of the King though on their own Land P. 11. Car. 1. Rolls Abridg Tit. Proerogat fol. 571 2. The Contriving Imprinting and Publishing of the Petition to be presented to his Majesty containing much seandalous Matter in it and Reslections upon his Government I agree it 's lawful for any Subject to Petition to the King for redress in an humble manner when he finds himself grieved for access to the Sovereign must not be shut up in case of the Subjects distresses but on the other side it 's not permitted under colour of a Petition and Refuge to the King to make ill Reflections on his Majesty and his Government If a Scandalous Letter be sent and delivered to a person who received it though the party which sent it did never publish it yet it 's punishable for the King and Common-wealth are interessed in it for such Letters do tend to the breach of the Peace and to the stirring up Challenges and Quarrels and therefore the Means of such Evils as well as the End are to be prevented Hob. Rep. fol. 62. Barrow's Case If a Man Imports Books writ beyond Seas against the Kings Supremacy knowing the effect of them and offer them to any Subjects he is within the danger of the Statute 5 Eliz. So of those that teach the Contents and affirm it to be good the same of him that conveys the Books secretly to his Friends to perswade them to be of that opinion the same of them that Print and offer such Books within the Nation Dy. fo 282. T. 6. Car. 1. An Information was Exhibited against Bonham Norton his Son John Norton Lee May Tho. Smith c. for contriving a Slanderous Petition to the King and for charging of the Lord Keeper with a Bribe for making of a Decree and they were Sentenced T. 6. Car. 1. Doctor Leighton was Sentenced for Making Imprinting and Publishing of a detestable Book containing in it Treasonable Matter against the King and inviting the Subjects to Rebellion Perkins was Sentenced to pay One thousand pounds and Imprisonment during his life because he dispersed a Seditious Letter against the Loane of King Charles the
Burgesses Citizens and Commonalty they may sue and be sued by those Names and they may have an Action ad respondendum Probis hominibus Burgensibus Civibus c. 7 E. 4.14 Where Mayor and Commonalty is sued and all the Commoners appear in their proper Persons it 's not good for this is another Body therefore the Corporation ought to appear by Attorney by the Name of the Corporation and not in their proper Persons 19 H. 6.8 Brok. Tit. Corporation n. 28. A Quo Warranto was brought against the Mayor and Bayliffs of Maydstone T. 2. Car. in B R. The Mayor and Bayliffs of Maydstone's Case Poph. Rep. Fol. 180. An Information against the Inhabitants of the Town and Burrough of Denbigh in the County of Denbigh for Usurping divers Franchises c. Cokes Entries Tit. Quo Warranto Fol. 537. b. 2. So that if a Quo Warranto is well brought against Burgenses Cives Inhabitantes Communitatem de villa c. be good a fortiori this Quo Warranto being brought against the Mayor and Commonalty and Citizens of London 2. The Burgesses of the Town of Tewksbury in the County of Gloucester brought an Action of Debt upon the Statute of 8 H. 6. c. 27. which hath reference to the Statute of Winchester if Satisfaction be not made for the Robbery therein mentioned within fifteen days after Proclamation The Action was given against the Commonalties of the Forest of Dean which are adjacent to the River of Severn and of the Hundreds of Bledstow and Westbury and the Writ was Praecipe Communitati Forestae de Deane Hundredis de B. W. Exception was taken to the Writ for the Writ ought to have been Praecipe Communitati Forestae d' Deane Hundredorum de B. W. according to the words of the Statute of 8 H. 6. as one entire Commonalty and yet the Writ was adjudged good for that it was to the same effect 8 H. 6. c. 27. 11 H. 6. Fol. 47. a. Inst Part 2. Fol. 570. The next thing which falls into Consideration is How far the Acts of the Common Council shall bind the Corporation 1. The Acts of the Common Council shall bind the Corporation for that Court hath some Resemblance of the High Court of Parliament for it consisteth of two Houses the one of the Mayor and Aldermen the other of such as be of the Commons Assembly Representing the Commonalty of London In this Court they may make Constitutions and Laws for Government of Trade and Traffick for the better Execution of the Laws and Statutes of the Nation or pro bono Publico and for the good Government of the City so those Constitutions and Laws be not contrary to the Laws and Statutes of the Nation And being made by the Mayor Aldermen and Commonalty do bind within the City of London and the Liberties thereof Inst Part 4. Fol. 249. Lib. 5.62 63. the Chamberlain's Case Lib. 8.173 the Case of the City of London 14 H. 8. It 's said that the Dean and major part of the Chapter make the Corporation and their Act is the Act of the Corporation although the others do not agree to it 14 H. 8. Fol. 9. So in the 21 E. 4.27.70 b. it 's said ubi major pars ibi tota 9 H. 6.32 If the Major part of the Corporation doth Imprison the Minor part until they consent to do an Act although they do not consent yet the Act done by the Major part shall bind all and its the Act of the Corporation 15 E. 4. Fol. 2. And with this agrees Panormitan C. cum in cunctis where it 's said Quod authoritas protestas Capituli consisit in majori parte ejus sic totum Capitulum facere dicitur quod major pars facit Davyes Rep. Fol. 48. Therefore I agree that if the Minor part of a Corporation accept of a New Charter it shall not bind the Corporation T. 13. Jac. Baggs Case Rolls Rep. Part 1. Fol. 224. Yet in some Cases the Act of one or of some few of the Corporation will bind the rest Did not the Corporation of Sandwich for the Misdemeanour of John Dennis the then Mayor thereof in a high Measure suffer and being thereof Convicted was not the Judgment thereupon Quod Communitas amittat libertatem The Command of the Mayor only to the Bayliff of the Corporation to enter into certain Lands for the Corporation though it be without Deed shall be good and bind the Corporation 16 H. 7.2 A Sum of 100 l. per Annum was due to the Mayor and Commonalty of Southhampten out of the Customs of the King an Acquittance by the Mayor alone because he was the Head of the Corporation was allowed by the Justices and for that there were shewn many Prsidents of Acquittances by the Mayor made in times past 2 R. 3. Fol. 7. An Action of Debt was brought against the Provost and Scholars of a Colledge in C. for that T. M. their late Provost and Predecessor of the Def. and the Scholars by F. their Servant bought certain Goods to the value of 10 l. which came to the use of the Colledge By the Justices it was agreed that the Contract was good and shall be intended the Contract of the Provost only and the Name of Scholars is but surplusage for the Contract of the Provost and for that it came to the Use of the Colledge is sufficient 5 E. 4.7 Brok. Corporation n. 53. A Writ of Covenant was brought by the Mayor and Commonalty d' H. against the Mayor and Commonalty of D. and declared that the Defendants by their Deed Covenanted that the Plantises should be Free of Murage Pontage Customs and Toll in D. of all those of H. and that they have unjustly taken Toll by certain of their Burgesses of certain of the Burgesses of H. c. adjudged that the Prisal and taking by their common Minister is a taking of the whole Corporation for it cannot reasonably be intended that the whole Community could meet together to take Toll and therefore it was adjudged a breach of the Covenant there is no mention made that he was their Minister by Specialty Sub communi sigillo Corporationis 48 E. 3. Fol. 17. I do agree that where there are Garden and Chaplin Mayor and Commonalty Dean and Chapter or the like the Garden Mayor or Dean solely cannot make a Lease nor discontinue for it ought to be by the whole Corporation and by Deed 21 E. 4.70 But if the King makes a Corporation consisting of Twelve Men to continue for ever in Succession when any of them dye that the rest may chose others in their place if three or four of them dye yet all Acts done by them shall be valid in Law Rolls Abridgment Part 2. Fol. 514. By which it doth appear by what Acts a Corporation is bound but when those things are acted and done in the Common Council of the said City being a Court of Record and which is Representative
First for the King sent to the Free-holders to lend to him Money Huttons rep fo Veritas convitii non excusat convitiantem a poena Penry for publishing Scandalous Libels against the Church-Government was Indicted Arraigned Attainted and Executed P. 35. Eliz. inter Placita Goronoe in Banco Regis New Book of Entries fo 252. Williams a Papist and Barrister at Law Indicted of High-Treason for writing two Books the one called Balaams Ass and the other called Speculum Regale because he affirmed the King should dye before 1621. and for saying that England was the Habitation of Devils and that it is the abomination of desolation By all the Judges it was High-Treason at Common-Law for these words import the End and the Destruction of the King and his Nations and that false Religion is there maintained which is a motive to the people to Rebellion And although the Book was enclosed in a Box sealed up and conveyed secretly to the King and never published yet he was Attainted for High-Treason and Executed at Charing Cross P. 17. Williams of Essex Case Rolls rep part 2. f. 89. In the time of Henry the Eighth upon the Dissolution of the Monasleries there was a great Rebellion in the North of England the Dean of Windsor being told of it said The King had brought his Hogs to a fair Market and a Parson hearing of it said Principibus obsta serò medicina paratur because the words of the Dean had an ill Reflection upon the Government and of his Majesties Management of the Affairs of State they were both Indicted of High-Treason for speaking the words and were found guilty and the Dean was attainted of High-Treason but the Parson because he was so ignorant as many times Ignorance is the best Sanctuary that he did not know the difference between Principiis and Principibus he was Reprieved and obtained his pardon of the King Every Libel against a private person deserves severe punishment for it incites all of the Family Kindred and Society to revenge and tends to Quarrels Verba movent litem lis vulnera vulnera Mortem against a Subordinate Magistrate it 's a greater offence because it scandalizes the Government for Injuria crescit decrescit secundum dignitatem personoe But against the King who is the Supream Head of the Common-wealth Pater Patrioe it 's a Crime of the first Magnitude And how fatal and pernicious the publishing of Scandals and Libels have been to the Kings of England and to their good Subjects this Nation is very sensible 7 E. 1. the King sent Commissions to all the Counties of England to enquire de Spersoribus Rumorum and 25 E. 1. Declaratio Regis missa fuit ad omnes Comitatus Angliae de Rege purgando de certis rumoribus iniquis contra ipsum ortis c. Rot. Parl. 7 E. 1. M. 13. Rot. Patent 25 E. 1. pars 2. M. 7. A Declaration of the King was sent to all the Counties of England to purge him of certain false and unjust Rumours and Scandals raised against him Rex mandavit Majori Vicecomit London Quod facta inquisitione de sparsâ—ribus rumorum Seditionem in Civitate ipsas caperent in Prisona de Newgate detinerent 20 E. 3. pars 1. M. 18. 26. The King Commands the Major and Sheriffs of London that they make diligent inquisition of the spreaders of False Reports and Sedition in the City and that they should seize upon them and keep them in the prison of Newgate As for the Petition imprinted and published by the Major Aldermen and Citizens I hope it was acted by many of them out of a principle of Piety and Loyalty but must needs be looked upon as an action of no great discretion in them to say no worse for to make such ill reflections upon his Majesty when the King by his Oath is bound to do Justice and Nulli Negavimus is one of his Royal Attributes Ob. But it hath been said That no acts bind beyond the Corporation but such as are done under their common Seal therefore they cannot present a Clerk to a Living but by Deed sub Communi Sigillo 13 H. 8.12 nor make a Surrender 33 H. 6.17 34 H. 6.21 nor assign Auditors 4 H. 7.17 7 H. 7.9 Et hujusmodi so their Laws and Constitutions made in their Common Council do not bind because they are not under their Common Seal Answ Excellent Logick he must be a rare Chymist that can Extract such a Consequence from the Premisses The Common Council of the City is a Parliament of the City the Mayor is the King the Aldermen the Peers the Commonalty the Commons and what they there Enact and Ordain is upon Record Jones Rep. Fol. 540. Therefore those Constitutions and Ordinances by them there made being Enacted in a Court of Record if not Warrantable make the more against them and what is then by them Enacted is of greater Force and Puissance than if it had been under their Common Seal If they appoint an Attorney at Law or Bayliff in their Common Council they may justifie any Act which doth belong to their Office Sans monstrans de fait c. for it 's to the Use of the Corporation 12 H. 7.25 26. They certifie their New Mayor Yearly in the Exchequer because it 's entred on Record 13 H. 8.22 vide lib. 10. l' Guardians 8. S. Saviours Case 14 H. 8.29 12 E. 4.9 10. IV. If the Mayor Commonalty and Citizens have done any Act in their Common Council whereby to Forfeit their Corporation and Franchises Where a Franchise is absolute and entire and hath no dependence on another Franchise then if any incident to it be Forfeited the whole Franchise is Forfeited 22 Ass 34. Palmers Rep. Fol. 82. en l'Case d' Corporation d'Maydenhead But the Corporation of London is a Franchise Court d'Entries Fol. 527. Palmers Rep. Fol. 82. absolute and entire and hath no dependance on another Franchise therefore the Forfeiture of any incident to the Corporation of London is a Forfeiture of the Corporation To make Laws and Ordinances for the well Government of the Corporation is incident to every Corporation Hob. Rep. Fol. 211. But the Corporation of London hath abused and mis-used this Power therefore they have Forfeited their Power to make Laws and Ordinances which is incident to their Corporation therefore they have Forfeited their Corporation the abuse of the Court of Pye-Powders being incident to a Fair is a Forfeiture of the Fair 7 H. 4.44 otherwise of Toll because it 's not incident to the Fair or Market Palmer Ibid. Object There is a Stat. 7 R. 2. That the Citizens of London shall enjoy all their whole Liberties whatsoever with this clause Licet usi non fuerint vel abusi fuerint and notwithstanding any Statute to the contrary 7 R. 2. n. 37. Answ This is no Act of Parliament but an Act of Grace of the King in Parliament For no assent of the Lords