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
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
ever sued For it is the Corporation that is here made Defendant and I do not consider the number that make up that Body that London's being populous alters the case for the case is the same if it were the Corporation of Quinborough or any other petit Corporation Suppose 20 Men be a Corporation or pretend to be a Corporation and you come to enquire by what particular means these Men pretend to be a Corporation or as the words of this Quo Wartanto are usurp to be a Corporation you must not say that they are one and then say they usurp it for 't is not the Corporation that usurps to be a Corporation that is impossible but 't is the particular Persons that usurp to be the Corporation when indéed they are none A Corporation may usurp a Market or they may usurp a Leet but they cannot usurp themselves It appears my Lord in Mr. Townsend's Book of printed Presidents a laborious thing it is and wherein he hath collected all the Presidents he could méet with of Quo Warranto's and there is but one in all that Collection that was brought against any Persons upon the score of their being a Corporation And what is that how was it brought not against the Corporation that was but against the Corporation that never was that is to say a parcel of People that took upon themselves to be a Corporation when indéed they were not and that is but one single President neither In Coke's Entries 527. Tit. Quo Warranto the King against Helden and other Burgesses of Helmesly for usurping to be a Corporation by the name of the Burgesses of Helmesly How does the Attorney General there bring his Writ he brings it against particular Persons My Lord Hobart who was then Attorney General never thought he could have maintained his Quo Warranto or expected Iudgment against them if he had brought it against the Burgesses of Helmesly generally and then have said that they were no Corporation but he brings it against those particular Persons and thereupon they come in and disclaim their being such a Corporation and the having the other Liberties and the Iudgment is That of those Liberties those particular People should be ousted and should not intermeddle with them Now my Lord what Iudgment can be given in this Case that the Mayor Commonalty and Citizens shall not intermeddle with the being of Mayor Commonalty and Citizens 'T is a very reasonable Iudgment that Helden and those particular Persons should not intermeddle with such a Liberty or be in such a Corporation but if such a Iudgment he given against the City here that would be as much as to say That you have never béen what you are or you shall never be what you are that is the English of it And my Lord I am sure as there never was but one Quo Warranto that we can find any printed President of against the being of a Corporation so that very President is not against those that really were so but particular Persons that usurped to be so And if you search all the Records of this Kingdom and all the Books in all the Offices you will never find any that is brought against a Corporation for being a Corporation upon pretence that they might be made none by a Forfeiture and no Prerogative of the King shall extend to excuse this but his Action shall abate if it be not right brought as well as the Subjects and so is Plow'd Com. fol. 85. Further my Lord I have another Authority in this point and that is in the Case of the Corporation of Maidenhead which hath béen so often cited by Mr. Sollicitor and it is in Palmer 80 81. where 't is said When the Attorney General hath supposed them to be a Corporation it is not usual to plead them to be a Corporation otherwise if he had questioned them as Inhabitants of such a Town then they ought to enable themselves Those are the words of that Book And what can be more plain Here the Attorney General supposes us to he a Corporation his Replication flies in his own Face and he having supposed it at first he is bound not to question us for our being a Corporation at any time after As to the business of forisfecerunt 't is a strange and a new word that never came into any Quo Warranto before that I know of but we will accept the new word but not the thing and that they have forfeited by such and such Acts this sure will be very hard upon us for if it be a Forfeiture it must relate to the time of the thing done to the time of the making the Act of the Common Council to the time of the Toll levyed or to the time of the Petition and if it do so it must relate like a Forfeiture for Treason it must reach all mean Acts all the Leases that we have made since are gone all the Iudgments that we have given in any Cause are Coram non Judice and void all the Acts of the Corporation are overturned by this forfeiture and we have béen under a vast mistake all this while We have had no Mayors nor Sheriffs no kind of Officers no manner of regular and legal procéedings but we have béen under a great mistake ever since this money was ordained or levyed We have forfeited all and that it is so is plain because in all Quo Warranto's wherein persons are convicted for usurping of Liberties there is a Fine set upon them for continuing that Vsurpation and reason good then if it be an Offence for continuing the liberty we must be fined for doing it ever since the Forfeiture when if Mr. Attorney General 's Rule be right there has béen no such Corporation but we ought to have discontinued all our acting as a Corporation and laid it down and so every step that we have taken since hath béen irregular and every Act void If so be an Action be brought against Baron and Feme and the Plaintiff should in his Replication say they were divorced several years before has he not undone all his pleading Here then is our Case Mr. Attorney General admits us to be sueable and yet charges us to have no capacity to be sued I do implead you but you have no right to be impleaded here he brings us into Court and when he has brought us here he quarrels with us for being here he makes us Defendants and then questions whether we ought to be so and so his great Charge against us is that we are what he would have us to be and what he hath made us to be for if a Month before the Information the Corporation was not but the very being of the Corporation was usurped how come we at the Months end to be Defendants Here comes a new creation interposed in that time and makes us parties sueable in the Court when by the Charge in the Information we were not so a Month before
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
was done seditiously or not if not then there is no sufficient Assignment of a cause of forfeiture if it were then 't is a crime for which the Offender is indictable and that I say is absolutely impossible for a Corporation to be guilty of And here I will throw in also that business of the Toll and I will for argument sake admit the taking of a wrongful Toll to be Robbery and then let the argument go on I have heard it said within the Bar occasionally that a Corporation is intrusted with the Government and that they may commit Treason and raise Sedition as Mr. Solicitor hath said I suppose it must be under their Great Seal But I confess I believe it is rather spoken to amuse than to satisfie but I really think it is no ill nor unjustifiable thing for me to say nor against the Government to affirm That 't is impossible a Corporation can commit Treason or that it is intrusted with the Government in any such kind But first my Lord I shall shew you what Opinion former times had and that because such an Opinion as this hath been broached of late days Lord Chief Justice Mr Recorder Will you be much longer Because I must sit here at Nisi prius this Afternoon and yet I would feign hear the Argument if it would not be too long Mr. Recorder No my Lord I have almost done and will cut short In 21 E. 4. fol. 13. b. 't is said by Pigott That a Mayor has two abilities the one to his own use to take and to grant and to do as another natural person does and then the Mayor as Mayor and Commonalty hath another Capacity to their common use and profit and that is but a name an Ens rationis a thing that cannot be seen and is no substance and for this name or Corporation 't is impossible they can do or suffer any wrong as to beat or be beaten as such a Body but the wrong is made to every member of the Body as to his own proper person and not as to the name of Corporation nor can the Corporation do a personal wrong to another nor can they commit Treason nor Felony as to the Corporation nor against any other person And if a Writ of Debt be brought against the Mayor and Commonalty or other such Body upon an Obligation and they plead it is not their Deed and it is found their Deed they shall not be imprisoned as another single person shall The same Law is if they are found Dissessors with force they shall not be imprisoned nor in a Writ of Ravishment of Ward they shall neither be imprisoned nor abjure the Realm for such a Body is hut a name to which such an act cannot be done So says Catesby in the same Book In a Writ brought against them no Capias shall issue because they are but as a dead person in Law and the Appearance upon a Capias cannot be otherwise than personal And so to this purpose says the Chief Iustice there If this Body will do any thing it must be done by Writing And all along it is the Tenor of the whole Case that a Corporation cannot commit Treason or any other Crime But the reason of the thing is above any Authority Suppose that they under their Common Seal should commit Treason and you bring an Indictment of Treason against the Mayor Commonalty and Citizens of the City of London what Iudgment shall be given against them in their corporate capacity What it shall be that Suspendatur per collum Corpus politicum And then what execution shall be done upon that Sentence What must they hang up the Common Seal Nothing else you can do can affect them but in their private capacity there they may be punished as single persons A Penal Statute says That he or she that offends against the Law shall forfeit so much or incur such a Penalty Is a Corporation Male or Female that it should come under such a provision but the real reason of the Law is this it is a civil Being it is Ens civile it is Corpus politicum it hath civil qualities but it hath no moral qualities and all Offences consist in the immorality of them and there must be malice to make that immorality No words or Acts are Treason or Felony unless there be a traiterous mind or a felonious mind and therefore a mad-man cannot be guilty of Treason or Felony Serjeant _____ brought an Action for these words That he had spoken Treason it was moved in Arrest of Iudgment that this cannot be Actionable for he might speak Treason in putting a Case ay that were well said they if it could be understood so but we must intend it that he spoke Treason as his own words ex corde suo which makes it Treason for Treason consists in the immorality of the mind Another reason is what Pigot said as I said before That a Corporation is but a Name an Ens rationis a thing that cannot sée or be séen and indéed is no substance nor can do or suffer wrong nor any thing where a corporal appearance is requisite What my Lord Dyer says in Moor 68. that he never saw is I believe true in general that no Man ever did sée that a Corporation could be bound in a Recognizance or Statute Merchant and why because it must be acknowledged in person And so in this case The Guilt follows the Person but cannot a méer capacity In all Crimes the Offender must appear in person and plead in person and suffer in person but you can never bring the Mayor Commonalty and Citizens into Goal to appear and plead to an Indictment to receive a Iudgment or suffer Execution Can a Body Politique that is invisible appear in person Obj. But then there is this great Objection By this means they say if there be no punishing of them there is no Government and they may commit Treason under the great Seal they may raise Armies and instigate a Rebellion and all with impunity Sol. My Lord I say no and I give two Answers to it that are not to be replyed to and the first is this 1. All these Persons that are met together though they are met corporaliter in their corporate capacity â—â—r the Acts of the Corporation at that time yet when they go out of their corporate business and commit Treason or Felony the Crime does not egredi personas every one of them is a Traitor or a Felon and notwithstanding they appeared there under the pretence of a Corporation yet they are all liable in their private several Capacities every one of them must be indicted personally and suffer personally For when they go about to do such a thing 't is out of the business of the Corporation and they must answer for their own particular Offences But 2. I have another Answer to give to it This Objection is to be retorted on the other side That if a
Corporation authorize the levying of War under their Common Seal shall be affected by it in their politick Capacity they are lyable to the Law in that Capacity only and must suffer in that Capacity only And the consequence of that is they are discharged in their private Capacity and this is a Law of Indempnity and Protection for all Crimes for a man cannot be lyable two ways for Treason or Felony or any other Crimes if he be not lyable in his private he is in his publick Capacity if not in his publick he is in his private And what is the consequence of that This is a Dispensation for a Corporation met together in a Body to do any illegal thing or to commit any enormous Crime for the Kings Counsel says this We are responsible for it in our politick Capacity and what Execution can then be done to punish that Corporation with such a punishment as the Law inflicts that is Imprisonment or death any more than upon an Action of Debt brought against them upon a Bond and Non est factum pleaded and found for the Plaintiff they can be imprisoned and the like So that this shall protect and shelter them in the commission of any Capital Offence for if they are to suffer for it as a Corporation you must take Iudgment against them as the Law gives it and how will that be done against an invisible Body What will be the Execution against the Corpus Politicum that can neither see nor be seen I think this mighty plain and I must confess I wonder how it could ever enter into the mind of any man that a Corporation could commit a Corporate Crime I have as it became me in regard of the duty of my place and before that for my own Learning read Stamford's Pleas of the Crown my Lord Cokes 4th Institutes Poulton de Pace Regni my Lord Hales's Pleas of the Crown Dalton's Justice of the Peace and other Books of that Subject but I defie any man to shew me in any of those Treatises concerning Criminal Matters any resolution that ever a Corporation that could be concerned that they should be brought before a Iustice of Peace or proceeded against upon any Law for Treason or Felony or be hanged in their politick Capacity My Lord I shall conclude all my discourse of this kind and I have almost done because I perceive I encroach upon your patience with an observation I have made upon the 19 H. 7. c. And and 't is the Statute that makes provision against Corporations that made By-laws against the Prerogative That Statute says that some Corporations did so now an higher Offence than that sure cannot well be described and there that Law says that those that do so that make such By-laws against the Prerogative shall forfeit for so doing for every Offence Forty pound unless they are confirmed by the Chancellor and Treasurer and Chief Iustices or any thrée of them Now to what purpose was this Statute made if the making of an ill By-law and worse cannot be than a By-law against the Kings Prerogative should be a forfeiture of the being of a Corporation How vainly did the King and Parliament employ themselves to make a Statute that a Corporation should forfeit 40 l. for such an Offence No Man will say they had rather take that Penalty than another when they might have a greater if a greater could be had by Law If they might have had a Quo Warranto and thereby destroyed the Corporation surely they would not have stood for the Penalty of 40 l. for they might easily have got more mony No they might have said We will never pass it by unless you will give us 4000 l. or a far greater Sum nor shall you have your Corporation again without you give us a considerable recompense for it And when the process and the procéedings were so expeditious and easie to come at it in a Quo Warranto as it was easie in those days why should they put the King to the delays in an Action of Debt for so small a Penalty as 40 l. So that I take it to be a direct Iudgment of the Parliament in that Case that no Corporation should or could be forfeited for the making of any By-Law that was irregular though it were even against the Kings Prerogative But to hasten to a conclusion I have all this while my Lord supposed that the Mayor Commonalty and Citizens of London have done this but it is not so this is not the Act of the Mayor Commonalty and Citizens 't is not the two hundreth part of the Corporation 't is but the Act of the Common Council and we have distinguished our selves by pleading that it does not consist of above 250 when the City contains above 50000. I must confess the Council is not taken notice of much in Law as is séen in Warren's Case 2 Crook 540. 2 Rolls 112. Warren being one of the Common Council of Coventry and displaced sued out a Writ of Restitution and upon that Writ it was returned that by custom the City might place and displace ad libitum they there held that the custom was good But it is not so of a Fréeman or Alderman because he hath a Fréehold but a Common Council is a thing collateral to a Corporation and the Office of a Common Council is nothing but only to give assistance and advice which they may refuse at their pleasure In Estwick's Case in Style 32. 2 Rolls 456. it is said That 't is a place méerly by custom and that the Common Council is properly but only a Court of Advice and my Lord you shall never intend more than that they were a Court of advice All the rise of their Power is but by custom and that custom is pleaded to give advice for the benefit of the City and make By-laws for the good of the Corporation and that is confessed by the Demurrer and you shall intend no more than what is opened in the pleading And then 't is evident this was done by a very small part of the Citizens of London and that does no way affect the whole Corporation sure In James Baggs Case 1 Rolls fol 226. it is said That if a Patent be procured by some persons of a Corporation and the greater part do not assent to it that shall not bind a Corporation And if so be a Charter sealed and sent by the King because not accepted in pais by the greater party bind not Shall an Act done by a few and an Act done that tends to a Forfeiture bind the whole in point of their being There is no ground to say that the Common Council represents the City no more than a Council does his Client or an Attorney his Master only as far as is for the benefit of the City they are chosen and entrusted to make By-laws if they offend they are but Ministers and Officers and so they are within the Statute of
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
or Scandal the King or his Government And for these great Crimes committed by the City I pray Iudgement against them Mr. Pollexfen upon another day for the City his Argument IN this Case when I consider the greatness and consequence of it That it affects the King the Parliament the Laws the very Government under which we have lived this great City of London and all other Corporations and People of England and their Posterities for ever I cannot but be troubled that I should be the Man to whose Lot it should fall to argue it but that which comforts me is that your Lordship and the Court upon whom the Iudgment of this great Case depends will help out my Defects and according to what is required in the great Places you bear take care and provide that by your Iudgment the ancient Government and Laws of this Kingdom receive no Damage or Alteration The King's Counsel have on their side only some general words out of old Records of Forfeitures and Seisures of Liberties which are of uncertain and doubtfull sense but there is not on their side produced any one Precedent Iudgment or Opinion to maintain the point in question viz. That a Corporation or Body Politick ever was determined or dissolved or taken away for a Forfeiture No not in the maddest of Times in the Times of Edward the 2d and Richard the 2d when the Tumults and Disorders were so great that they not only seized and took away Liberties and Franchises but the Lives of Princes Nobles Iudges Lawyers and all that stood in their way In those times though they have hunted and searched with all diligence not one instance of a Corporation taken away or dissolved by a Forfeiture is cited So that from hence I hope I may safely conclude that I argue in this case for the old and known Laws as they have been ever practised through all Ages and against that which never hath been practized or known which is a great Encouragement to me The Pleadings being very long I shall only repeat so much of them as I use when I come in order to speak of them I. The first thing proper to be spoken to is the Information it self and therein I make this Question Whether as to that part thereof that chargeth the Corporation with usurping upon themselves the being of a Corporation whether that be properly brought against the Body Politick as this is or ought to have been brought against the particular Persons I do agree that as to the other things mentioned in the Information the having Sheriffs Iustices c. The Information is properly brought against the Corporation And I do also agree that it may be good as to those things though bad and insufficient as to the charging the Corporation with Vsurpation of their Being without lawfull Warrant or Authority And that I may come singly to this Question I do put out all the other Franchises in the Information and take only what concerns this point and then the Information as to this point chargeth That the Mayor Commonalty and Citizens of London by the space of a Month last past before the Information did use and claim to have and use without any Warrant or Regal Concession within the City of London the Liberty and Franchise following viz. to be a Body Politick Re Facto Nomine by name of Mayor and Commonalty and Citizens and by that Name to plead and be impleaded which Liberty Privilege and Franchise the same Mayor Commonalty and Citizens upon the King by the time aforesaid have and yet do usurp This is the Substance of the Information as to this point and Whether this Information thus brought as to this matter be sufficient in the Law upon which a Judgment can be given or ought to have been brought against particular Persons is the Question I conceive it ought to have been brought against particular Persons and is insufficient as it is and that no Iudgment can be given upon it supposing the Defendants had demurred or pleaded nothing to it To make out the Insufficiencies I desire to consider what it imports 1. The very bringing the Writ and exhibiting the Information against the Corporation imports and admits the Mayor Commonalty and Citizens to be a Body Politick capable to be sued and impleaded respondere responderi otherwise there is no Defendant no Person in Court against whom the Suit is brought It is not enough that the Person sued be a Person by supposition or a pretended Person but none in reality If a Writ or Information be brought against a Baron and Feme this must admit that they are Baron and Feme really and truly and if there be any thing after in the Writ or Information that shews that they are not truly and really Baron and Feme but that they do wrongfully and unduly take upon them to be Baron and Feme when in truth they are not this would be contrariant and repugnant and abate the Writ or Information The like is supposed by the bringing the Writ or Information against the Body Politick it supposeth and affirmeth them really and truly to be such and the subsequent Affirmation that they usurped so to be and are not so really is contrariant and repugnant 2. When in the Information it is alleadged that the ayor Commonalty and Citizens the Liberty Privilege and Franchise of being a Body Politick Re Facto Nomine and to be sued and impleaded upon the King have and yet do usurp To usurp or doe any Act of Necessity imports and admits a precedent existence of the Persons that doth usurp or do the Act to the Act done Particular Persons may usurp and take upon themselves that which they have no right unto The Persons that doe the Act did before exist and had a Being And when a Corporation is said to usurp it of necessity must be supposed to have a precedent Being The sense of Vsurpation in a Quo Warranto is the Subject's taking upon him Franchises without Warrant My Lord Coke saith Inst 1.277 b. That Usurpation in the Common Law hath two significations 1. The one when a Stranger presents to a Benefice and his Clerk instituted and inducted he gains the Advowson by Usurpation 2. The other when any Subject without lawfull Warrant doth use any Royal Franchises he is said then to usurp upon the King So that an Vsurpation supposeth of necessity a Subject or a Person precedently in esso that useth the Franchise or that doth usurp That which is not in esse that hath no existence cannot use any Franchise cannot usurp The very alleadging that they usurp doth admit of necessity an Existence precedent in the Corporation such as can usurp or Act and therefore this Information is inconsistent with it self 3. But another reason to prove that it ought to be against particular Persons and cannot be against the Body Politick is drawn from the Iudgment that must be given upon this Information if
suo pro Usurpatione Libertat Franch predict ' That this is the Form C. En. 559. a 537. 527. b 3. That this Iudgment of New Malton passed sub silentio for there is no mention of it in any Book nor doth it appear that ever the Question was moved or debated And for Precedents in matters of Practice and Process they are of Authority but in point of Law unless they have been upon Debate are of little authority to prove what the Law is Rep. 4. 94. Slade's Case L. 5. E. 4. 110. But on the contrary all the Precedents that are in any printed Books of Informations where brought to question whether Body Politick or not are against particular Persons by name Against Christopher Helden and others C. En. 527. Pal. 9. fo Rol. 2. r. 113 115. Rol. 2. 455. Quo Warranto against Cusack and others Quo Warranto against the Virginia Company was brought against Nic ' Farder and others Quo Warranto they claimed to be a Corporation Some of them pleaded insufficiently upon which there was a Demurr and a Question How the Iudgment should be entred for that the Master and chief of the Company were left out of the Quo Warranto By which it appears that it ought to be brought against the Master and particular Members by Name Next for the express Authorities in this Case to prove it cannot be against the Corporation Rol. Rep. 2. 15. is express That if a Quo Warranto be brought to dissolve a Corporation the Writ ought to be brought against the particular Persons for the Writ supposeth that it is no Corporation The difference there taken when the Attorney General supposeth the Defendant to be a Corporation otherwise when he questions them as Inhabitants of a Vill. then they ought to enable themselves they must then shew themselves a Corporation also prove it Fol. 168. My Lord Hales in his Common-Place Book in Lincolns-Inn Library saith thus Nota Sc. Quo Warranto soit port pur usurper de un Corporation serra port vers particular Persons quia in disaffirmance del Corporation Judgment serra done que serra ouste mes si le quo Warranto soil port pur Liberties claim per Corporation serra port vers le Corporation This is positive This if it were only my Lord Hales's Iudgment were of no little Authority but I think it is a Report taken upon the Case of the Quo Warranto against Cusack and others But Mr. Attorney finding as I believe that all the Precedents to be against him For in them all there are either non Pross or no Procéedings to Iudgment the Causes whereof or at least some of them probably might be the Insufficiencies of these Informations And finding also the Authorities in Print which have been cited to be all against him and none for him endeavoured to maintain the Information as brought not against the Corporation but against the Citizens or Inhabitants of the City in their Natural Capacities and to that purpose cited the Case C. En. 537. of a Quo Warranto against the Inhabitants of a Village Quo Warranto they claimed to be a Body Politick And argued That a Quo Warranto lyes against the Cives of such a City or Burgenses or Tenants This seems to be rather a sudden conceit and altogether undigested and not well considered But in answer thereunto and to prove that this Writ is brought against the Defendants as a Corporation and cannot legally be taken in any other Case If a Mayor and Commonalty plead that they are seized in Fée Leo. 1. 153. they néed not say in Right of their Corporation the Name shews them to be a Corporation it néed not be alledged An Action there brought by the Guardians and Fellowship of Weavers the Book saith Hob. 211. That they néed not set themselves out to be incorporate the Name shews it so of Cities saith the Book So then when the Writ is brought against a Mayor and Commonalty or Mayor Commonalty and Citizens the Law takes notice of them to be a Corporation and the Writ against them as such the Name shews it But against Inhabitants of a Village a Writ brought by the Name that cannot be taken to be other than Inhabitants the Name so shews it and in such Case some of the Inhabitants by Name viz. A. and B. appear in Person in their own and Names of the rest of the Inhabitants and plead and are Defendants Co. En. 537. So did they as appears in that Precedent No appearance ever was of Inhabitants in other manner But in this Case here are no Persons that do appear by Name but the Corporation appear and make an Attorney under their Common Seal The Corporation and no particular Persons are the Defendants before you or else you have no Defendants before you for there is none appearing in Person here is no Defendant nor none against whom you can give Iudgment but all the whole Procéedings vain and against no body So that if we should admit as Mr. Attorney argues That this Information is not brought against the Corporation then there can be no Iudgment for want of Defendants appearing in their Natural Capacities you must have it against the Corporation or no body A Mayor cannot be but where there is a Corporation therefore this Notion impossible as I conceive So that if there were nothing else in the Case if the Information be ill brought they can have no Iudgment against us 2. But admit that the Information as to this Point be sufficient Then I procéed to consider the other parts of this Case The Plea That contains the Defendants Title viz. That she is a Corporation time out of mind and many Confirmations by Acts of Parliament and Charters It is not denied but that the Title made by the Plea is good But next the Replication that contains 1. An Issue upon the Prescription viz. That the Citizens of London have not been time out of mind a Corporation by Name of Mayor Commonalty and Citizens c. 2. A Pleading over That the Mayor and Commonalty and Citizens taking upon them assumentes super se to be a Body-Politick and to have Power to make By-Laws 1. Colore inde but for their private Gain contra fiduciam per Dominum Regem Leges hujus Regni in them reposed took upon them to raise Money upon the King's Subjects by colour of an Ordinance by them de facto made and in Prosecution of this usurped Power 17 Septemb. 26 C. 2. The Mayor Commonalty and Citizens in their Common Council assembled Published a Law for Levying Money upon the King's Subjects that came to the Markets within the City viz. De qualibet Persona for every Horse Load of Provisions brought into any Publick Market within the City to be sold 2 d. a Day for every Dorser of Provision 1 d. a Day for every Cartload drawn with not more than thrée Horses 4 d. a Day
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
R. 2. Iustice Jones 283. hath it verbatim out of the Parliament Roll. The constant course of pleading the Customs of London is to plead a confirmation of them by this Act of Parliament So that as to this point there is not any one Book or Opinion before this day in favour of what is affirmed that these are not Acts of Parliament and our Plea stands good in Law and the Ordinance and By-Law and Custom good and then no Forfeiture thereby 3. But suppose and admit that this By-Law be the Act of the Corporation be not good and sufficient in Law nor in Law justifiable Quid sequitur Then it is void in Law Then if it be void in Law How can it make a Forfeiture Suppose a Lessee for years or for Life makes a Feoffment but it is not duly executed for want of Livery and Seisin by which it is void in Law Can this make a Forfeiture of the Estate of the Lessee Suppose a Corporation Tenant pur auter vie makes a Feofment which is void for want of Livery duly made Will this forfeit their Estate A void Act shall not destroy or forfeit a precedent Estate A Parson that hath a former Benefice accepts a second Benefice incompatible Dy. 377. b. was instituted and inducted but did not read the the Articles his first Benefice was not forfeit or void hereby because by the Statute the not reading his Articles had made his Institution and Induction void So that then whether this By-Law or Ordinance were good or void in Law perhaps is not much material it cannot make any Forfeiture of the Corporation it can have no such effect for if it be a good and lawfull By-Law no Forfeiture can be for doing a good and lawfull Act. If the Ordinance be not warrantable by Law then it is void in Law if void in Law a void Act can make no Forfeiture Obj. But you received and exacted from the Kings Subjects Summs of Money by this Ordinance Resp Suppose we did and that we had no right to have this money if an Officer by colour of his Office receive more than is due it is Extortion and a Crime punishable But if a Person that is no Officer take money that is not due or more than is his due the Parties injured have their Remedies by Action but this is no Crime for which any Forfeiture or Penalty is incurred by the person that so takes or receives the money Suppose a Lord of a Manour exact or take greater Fines or Summs of Money from his Copyholders or Tenants than he ought they have their Remedies by Actions against those that receive so if a Corporation receive or take moneys supposed to be due but in truth is not how can this Forfeit any thing Obj. But you took upon you a Power and Authority to tax the King's People and to take and receive the money so taxed Resp This is but the same thing only put into greater words It is still but the making of an unlawfull By-Law and thereby appoint money to be paid which ought not or more than should be and the turning of it or expressing it in stately words of taking upon you or usurping Authority to impose upon and tax the King's People Whosoever doth any act or thing he takes upon him and doth also execute the Power and Authority of doing that act or thing which is comprehended in the thing done The making a By-Law or Ordinance whereby more is ordered to be paid than ought or money appointed to be paid where none is due is still all the fact and thing done and if that make no Forfeiture of the Corporation or Crime punishable by Indictment or Information except only as the Statute 19 H. 7. c. 7. which I shall hereafter mention hath appointed for Forfeiture of 40 s. The taking or usurping the Power to doe it cannot be more or effect more than the doing the thing which comprehends it 2. As to the other Cause alleadged in the Replication for Forfeiture the Petition printing and publishing it In the Replication 't is alleadged That a Parliament the 10th of January was prorogued to the 20th of January That the 13th of January the Mayor Commonalty and Citizens of London in their Common Council assembled malitiose advisate seditiose took upon them ad judicand ' censand ' the King and the Prorogation of the Parliament by the King so made and that the Mayor and Commonalty and Citizens of London so in the said Common Council assembled did give their Votes and Order That a Petition in the Name of the Mayor Aldermen and Commons of the City of London in Common Council assembled should be exhibited to the King In which Petition it was contained That by that Prorogation the prosecution of the publick Iustice of the Kingdom and the making necessary provisions for the Preservation of the King and his Protestant Subjects had received Interruption And that the Mayor Commonalty and Citizens of London in Common Council as aforesaid assembled did malitiously and seditiously to the intent the same should be dispersed among the King's Subjects and to cause an Opinion that the King obstructed the publick Iustice and to stir up Hatred and Dislike against the King's Person and Government did order the said Petition to be printed and afterwards they did print it and caused it to be published The Defendents in their Rejoinder to this Breach set forth and alleadg Rejoinder as to the Petition That there was a Plot against the Life of the King the Government and the Protestant Religion and set forth all the Proceedings upon it the Attainders and Impeachments of the Lords in the Tower in Parliament depending the Proclamations declaring the Dangers by this Plot that they could not otherwise in humane Reason be prevented but by the Blessing of God upon the Consultations and Endeavours of that great Council the Parliament and commanding a General Fast to be kept in London the 22d of December and that it was kept accordingly The Proceedings in the Parliament towards the Tryall of the Lords and preparing Bills to be enacted into Laws for preservation of the King and his Subjects against these Plots and Cospiracies That divers of the Citizens loyal Subjects being much affrighted and troubled in their Minds with the apprehension of these Dangers did exhibit their Petition to Sir Patience Ward then Lord Mayor and the Aldermen and Commons in Common Council then assembled containing their Fears and Apprehensions and Expectations from the King and that Parliament did petition that the Common Council would petition for the sitting of that Parliament at the time prorogued And thereupon the Mayor and Aldermen naming them and Commons in Common Council assembled from their Hearts truly loyal to the King and for the satisfaction of the Citizens who had exhibited that Petition and of intent to preserve the Person of the King and his Government did give their Votes and order a Petition
Lord Arundel of Warder Lord Petre Lord Bellasis were Impeached by the Commons in Parliament of High Treason for the same Conspiracies and sent to the Tower That the King in his Speech to that Parliament had recommended to them the further pursuit and examination of that Conspiracy declaring he thought not himself nor them safe till that matter were gone through with and therefore that it was necessary that the said Lords in the Tower should be brought to their Trials that Justice might be done and the Parliament having made an Address to the King wherein both Lords and Commons declared their being deeply sensible of the sad condition of the Realm occasioned chiefly by the Conspiracies of a Popish Party who had plotted and intended the Destruction of the King and Subversion of the Government and Religion of the Kingdom and thereupon a Solemn Fast kept pursuant to the Kings Proclamation grounded upon the said Address and divers Bills prepared to be pass'd into Laws for preservation of his Protestant Subjects These Impeachments and Bills being thus depending and the Lords in the Tower not Tryed the Parliament was upon the 10th of January prorogued as the Attorney General above in his Replication hath alledged by reason whereof the Citizens and Inhabitants of the said City being faithful Subjects to the King were much disquieted with the sense and apprehensions of the Danger threatning the Person of the King his Government and Realm by reason of the Conspiracies aforesaid as is by both King and Parliament affirmed and declared and conceiving no better means to prevent than by the Sitting of the Parliament and having received a Petition from divers faithful Subjects Citizens of London to the same effect And it being lawful to Petition the Mayor Sir Patience Ward and the Aldermen and Commons in Common Council assembled for the preservation of the King and his Government did cause to be written the Petition in the Replication mentioned which is set forth in haec verba and did Order that after the same was presented to the King it should be Printed for the satisfaction of the troubled Minds of the said Citizens and traverse the writing or making any other Petition or making this to any other end or intent than they have pleaded THE Attorney General as to the Plea of the Mayor Surrejoynder and Commonalty and Citizens pleaded to the making and publishing the Ordinance about the Markets Protestando That the Mayor and Commonalty and Citizens were not seiz'd of the Markets nor at their charges provided Stalls and Necessaries or Market-places Protestando etiam That the said Rates and Sums were not reasonable For Plea saith That by a Statut made 22 Car. II. it was enacted that Places for Markets should be set out and 2 d. per Chaldron upon Coals for the charge of that and many other things was given and that they received a great Sum out of that Duty for the purpose aforesaid and yet for their own private Lucre took the Mony by the Ordinance And traverseth that the Mayor and Commonalty and Citizens time out of mind habuerunt habere consueverunt Tolneta Ratas sive denariorum summas per ipsos Majorem Communitatem Cives superius supposit per prefatam Legem sive Ordinationem predict ' Assess in certitudinem reduct prout per placitum suum superius rejungendo placitat ' supponitur And to the Plea of the Mayor and Commonalty and Citizens pleaded to the Residue of the Attorney's matter assigned for a Forfeiture as aforesaid The Attorney Protestando That the aforesaid Prorogation of the Parliament was for urgent Causes concerning the good of the Kingdom and thereby the prosecution of publique Justice not interrupted And Demurrs to the said Plea of the Mayor and Commonalty and Citizens by them pleaded as to the Petition Rebutter THE Mayor and Commonalty and Citizens as to the making and publishing the Ordinance for the payment of Monies by those that come to the said Markets say as before That the Mayor and Commonalty and Citizens have time out of mind had and accustomed to have reasonable Tolls Rates or Sums of Mony of all Persons comming to these Markets with Victuals and Provisions there to be sold for Stalls Standings and other Accomodations by them had for exposing their Victuals and Provisions to sale And of this they put themselves upon the Country c. To this Mr. Attorney demurrs And as to the Plea by the Mayor and Commonalty and Citizens pleaded to the Residue of the matter by the Attorney General assigned for Forfeiture they joyn in Demurrer Memorandum That when the Demurrer in this Case was joyn'd viz. Mich. Term. 34 Car. II. Mr. Sergeant Pemberton was Chief Justice of the King-Bench But before Hillary Term that it came to be argued he was removed and made Chief Justice of the Common-Bench and Sir Edmoud Saunders who had been Counsel for the King in drawing and advising the Pleadings was made Chief Justice of the Kings Bench. De Termino Sancti Hillarii Annis RRs Car. II. 34. 35. Annoque Dom. 1682. In Banco Regis die Mercurii 7. Februarii Dominus Rex versus Majorem Communitat ' Cives Civitat ' London THIS Great Case was twice only argued at the Bar First by Mr. Finch the Kings Sollicitor for the King and Sir George Treby Recorder of London for the City And next by Sir Robert Sawyer the Kings Attorney General for the King and Henry Pollexfen for the City Mr. Sollicitor The Questions in this Case as I think will be Mr. Sollicitor I. Whether any Corporation can be Forfeited II. Whether the City of London differ from other Corporations as to point of Forfeiture III. Whether any Act of the Mayor Aldermen and Common Council in Common Council Assembled be so much the Act of the Corporation as can make a Forfeiture IV. Whether the Acts by them done in making the By-Law and receiving Mony by it or in making the Petition and causing it to be Printed and Published be such Acts as if done by the Corporation will make a Forfeiture of the Corporation The First of these Questions truly I should not make any Question at all but that this Case has been a Case of so great expectation every man hath discoursed about it and the prejudice that some have entertained concerning it have drawn them to assert the Negative Proposition Therefore my Lord because this strikes to the whole though I think it hath no Foundation in Law I will beg leave to remove this Objection out of the Case I. First of all No Corporation hath any other Creation than any other Franchises have and subsist upon the same Terms that other Franchises do II. There is a Trust or a Condition in Law that is annexed to and grows upon all Franchises that they be not abused and the Breach of them is a Forfeiture of the very being of the Franchise III. And as there is no Foundation of
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
9. 21 E. 4. 13. Co. 10 Rep. Sutton's Hospital Case That Corporations have béen Dissolv'd 1 Inst 13. 2 Inst 431 432. Co. 3 Rep. Dean and Chapt. de Norwich's Case That Corporations may be surrendred is plain from the Cases of Heyward and Fulcher Jones Palm 506. That the Causes for which Franchises may be seized are the same for which they are forfeit as for Non-user or Abuser And therefore Forfeiture and Seizure alike For Contempt of the King the Court may seize the Liberties of a Town 2 E. 4. 5. Case de Bayliffs de Reading 15 E. 4. 6. Seizure of Liberties for not Appearance and if not replevyed the same Eyre they are forfeit This shews that the same default that gives Seizure gives Forfeiture A Seizure by award of a Court before Iudgment is but quousque and the Court may restore but a Seizure after Iudgment is final and the Court then cannot grant Restitution 5 E. 4. 7. Where the Liberty is usurp'd and gain'd by Tort there the Iudgment must be an Ouster But otherwise where the Liberty was once of right but forfeited by Abuser there the King shall have it Case de New Malton Iudgment there was only a Seizure Case de Cusack Iudgment fuit penitus excludatur because usurp'd and no title By the Seizure the King is in the possession Sir G. Reynel's Case Co. Rep. And the Corporation cannot act during such Seizure for they have not their Mayor or Officers by which they can act and that is the reason they Petition to be restored in E. 1. ad pristinum Statum Rolls Abridgment Prerog 204. 2 E. 4. 27. 1 Institutes 253. 15 H. 3. Rot. Cl. Memb. 2. Village of Hereford seized into the Kings hands quousque c. By the Seizure the Corporation est Civiliter mortua and cannot act Corporations are instituted for a particular end viz. For good Government and Order They are as an Office erected and the Actors Officers to that purpose All Offices have a Condition in Law incident to them to be forfeited for abuser or mal-user Co. Rep. 8. 44. Co. Rep. 9. Earl of Shrewsburies Case And by the same Law Corporations forfeit for mal-user or abuser No difference betwixt Corporations aggregate or sole and the one forfeit for the same mis-user or abuser as the other And as to the Mischiefs that will ensue if the Law otherwise It is no answer That the persons offending may be punished in their private Capacity For if they still remain a Corporation they may Assemble Consult raise Mony and Men to the hazard and danger of the King and his Government and still continue a form'd Body too much thereby advantaged to serve such purpose Presidents and Cases of Forfeiture Case of Sandwich Pasch 3. E. 1. Rot. 55. upon an Information the Iudgment was Consideratum fuit per Dominum Regem Consilium Domini Regis in Parliamento quod Majoritas Libertas de Sandwich capiatur in Manus Regis Villa de Cambridge Inst 4. 428. M. 8 R. 2. Plea to the Iurisdiction rejected and Iudgment that their Liberties shall be seized Ryly placita Parliamenti 277. Iudgment that the Liberties of Winchester shall be seized quousque and restored again Mich. 18 E. 3. Rot. 162. in B. R. Iudgment against Ipswich that the Custody thereof shall be seized 2 Rolls Prerog 204. divers Seizures 1 Crook 252. it is there cited that the Liberties of the Town of Norwich were seized 27 H. 6. for not suppressing a riotous Assembly there F. Avowry 129. Iter of Lancaster Quo Warranto against Northampton Iudgment of Seizure quousque c. for mis-pleading 2 H. 7. fol. 11. Mich. 15 Car. 1. B. R. Quo Warranto against the Town of Berkhamsted but no Iudgment entred Usual Proceedings in Eyre to Seize Fine and Restore Rast Entries 540. Seizure of a Leet for not having a Tumbrell And all the several Cases and the very Acts cited that prove Seizures of a Corporation prove also that they may forfeit V. That the Acts of the Common Council are the Acts of the Corporation Corporations have by their Charters Prescription or Custom Common Councils to assemble advise and consent they are as Delegates for the rest of the Body they are the Active Corporation they make By-laws and dispose of the Lands and Concerns of the Corporation in them the Corporation acts 9 H. 6. 3. 5 H. 7. 26. 48 E. 3. 17. 1 Cr. 540. Warren's Case Rolls 2 A br 456. Tit. Restitution Obiect That the Stat. 1 E. 3. insisted on by the other side whereby they would have it that the Liberties of the City should not be seized for any the Miscarriage of the Officers Resp In answere to this Objection I. It is no Statute but only a Charter and that Charter not granted to the Mayor Aldermen and Commonalty but only Civibus London II. That it extends not to this Case for by the words Officers and Ministers the Mayor Sheriffs and Aldermen being ordinary Officers of the City by whom the Kings Writs and Precepts are executed are the Persons intended But this extends not to the Mayor Aldermen and Common Council which are the visible and active Corporation Stat. 38. E. 3. c. 10. explaineth this to be so for that is express Mayor Aldermen and Sheriffs and that the Liberties of the City shall not be seized for their miscarriage till their third Default But the Stat. 1 H. 4. c. 15. repeals the former Stat. of 28 E. 3. also the Stat. 1 E. 3. if it were any puts the City of London into the same condition with other Cities VI. That the Facts and Crimes charged in the Replication are Forfeitures They are Offences of a high Nature To oppress the Subject by raising Mony for their own private Gain is quite contrary to the ends of their being a Corporation which is the good Government and Preservation of the Subject but to make use of this Power to oppress and raise Mony for private benefit is a great Abuse of their Authority and Franchase And they cannot excuse themselves as for a Toll For Toll cannot be claimed except it be a Sum certain it must be some little petit Sum claimed for Toll These Sums are too great and unreasonable to be claimed for Toll The Statute of H. 7. that gives a Forfeiture of 40 l. for using an unlawful By-law did not alter the Law that was before It gives a new and further Penalty but takes not away the old And as to the Custom alledged for assertaining Tolls Duties or Sums reasonable to be paid such Custom is unreasonable for the Vncertainty and the Nature of it VI. The Petition is malicious and apparently Seditious stiring up the People to a drinke of the King and his Government Stat 3 E. 6. c. 1. provides against derogating from or depraving the Book of Common Prayer 1 Cr. 223. Sir William Marsham versus Budges against Standalizing a Iustice of Peace Much more is it to deprave Libel
Sum certain and in all grants that ever were of Pickage and Stallage they were never reduced to a certainty and those are things too that relate to a Market And so I take it to be for Keyage Anchorage and the like for when there are Posts or Places for Ships to which they may be fixed the Owner of the Port may have a compensation for that but that must néeds be uncertain according to the circumstances if a Ship be bigger or lesser if a Ship stay a Month or a Day 't is not fit the same rate should be paid nor is it usually granted by particular words Co. Ent ' 535 526. placit ' 4. The King against the City of London for the Water-Bailage and other things They pleaded only a Right in general and do not say what the Particulars were and yet one of the things demanded in the Quo Warranto was as I said the Water-Bailage which sure if any thing ought to be certain that ought In that Case it was good Pleading though I think I could say more against it than this thing that is in the nature of Stallage so that all that Mr. Sollicitor hath built upon that must I think néeds vanish My Lord I do not think but London ought to be and is as much under the obedience and correction of the King as any City but yet I believe in these Cases of their Customs you will give that allowance and indulgence to it that all your Predecessors have done which is greater than they have given to any other Corporations in the Kingdom and that because it was London that there should be such a thing as a Foreign Attachment I think is hardly allowed in other places I am sure I have known it deny'd in some that a Contract in Writing should be equal to a Book Debt that a Feme Merchant should sue or be sued without her Husband or if he be named he should be only named for conformity You take notice that London is a Port-Town and that Men that Trade there sometimes go beyond Seas and in their absence their Wives trade by themselves and perhaps carry on distinct Trades while they are here And so they may do in other places may be but only for the sake of London do you take notice of these things there and not elsewhere their Penalties that are sued for in their Courts a great many of them are such as would not be well maintained in other Courts or in any other place and yet they are maintained there as namely That their Penalties should be sued for before the Mayor and Aldermen when the benefit of them goes to their use and yet that is allowed in the Eighth Report notwithstanding the grand Objection That they are in some sort Iudges and Parties Rolls 2 p. Abr. Tit. Prescription Letter H. fol. 266. No. 2. 3. The City of London may prescribe to have a Court of Chancery in London of matters tryed in the Sheriffs Court though such a Court cannot be granted by the Kings Letters Patents but the Mayor and Citizens of York cannot prescribe for such a Court because it were very dangerous that such petty Corporations should have such Courts And whatsoever is said by my Lord Hobart in his Reports 63. I do affirm there is no Act of Parliament that erects a Court of Chancety in London or the Cinque-Ports if Mr. Sollicitor had strugled with me about the being or not being of that Act of Parliament I would have agréed with him that there was no such sooner than some that he says are none The Customs of London have béen upheld and I must confess I think that is very strange even against the general Words of an Act of Parliament 2 Inst 20. A Goaler in London may permit his Prisoner that is in Execution to go at large with a Battoon in any place within their Iurisdiction and 't is no escape And so is Plowdens Com. 36. A Citizen of London may set up one Retail Trade though he was bred to another notwithstanding of the Stat. 50. of the Quéen And for a General Rule take that that is said in Palmer 542. Those of London may prescribe against a Statute and the reason is because their Liberties are confirmed by Statute and other Towns are not In Rolls Rep. 1 p. 105. Sprike against Tenant my Lord Coke being then Chief Iustice says We take notice of the Customs in our Courts and other Courts in West-minster-Hall and in London Fleetwood Recorder of London says a very strange thing in 1 Leon ' 284. Hollinshead and Kings Case and in 4 Leon ' 182. That the King's Courts ought to take notice that those of London have a Court of Record for if a Quo Warranto issues to the Iustices in Eyre it does not belong to them of London to claim their Liberties for all the Kings Courts have notice of them And truly I have béen enformed I mean by Copies of Records that when the Iustices in Eyre came to the Tower this was a Priviledg allowed to them they were not bound to set forth their Liberties as others were My Lord I think this as 't is pleaded is a Duty very justifiable and very well payable by vertue of this Custom I do agrée as I said a Toll is properly for Goods sold and this is a Custom for the accommodation of those that brought Goods to be sold and 't is like that 1 Leonard 218. my Lord Cobhams Case a Duty paid for the standing in the Cellar and there that is held to be good In Rolls 2 p. of the Abridgment 123. Letter B. Hickman's Case The Lord of a Mannor may prescribe to have the eighth part of a Bushel of Corn in four Bushels that are brought to the Market within the Mannor in the name of the Toll and that is for Stallage only for it is said there whether it be fold or not And in the same Book fol. 265. the City of Dublin set forth that they are owners of the Port of Dublin and that they maintained Perches in the said River to direct the Ships in the déep Channel and that they kept the Key and the Crane and therefore in consideration of that they prescribed and demanded three pence in the Pound for all Merchandizes in the said Port and it was held good Now I agrée Toll-through that can't be prescribed for simply and generally but by Toll-through I mean as you know for passing and re-passing through only and not for staying but yet even that may be prescribed for too in consideration of repairing a great High-way or a very foul way or maintaining a Bridge and the like And therefore if our Considerations here be as good as that we maintaining those great places may prescribe for this duty as for passing through the Streets though it were no Market There is a famous Case reported in Rolls 1 p. fol. 1. 44. And 't is in 2 Bulstrode and also in
I understand not for nothing can be more flat and plain against him If so be we should forfeit our Toll or our Market be it so nay if we should forfeit our Liberty of having a Common Council what then how is it possible to bring it up to a Forfeiture of the Corporation You shall forfeit a Court of Pypowders if you forfeit your Market because 't is incident to it and dependent upon it and subject to what dangers the Market it self is subject to but the being of a Corporation nothing can transcend that To be sure what is incident to it cannot transcend it 't is but a Subject to that which is is superiour For example sake my Lord I will cite you a Case which is the Case of the City of London too about the measurage of Coals It is Sir Julius Caesar's Case 1 Leon ' 106. And I choose to cite that Book for though it did not come out with your Lordships Authority yet my late Lord Chancellor gave this just accompt of it That it was one of the best of our later Reports Sir Julius Caesar libelled in the Admiralty against the Officer of the City for measuring Coals upon the Thames Fleetwood came to the Bar and prayed a Prohibition and Edgerton the Solicitor on the other side complained that the Mayor of London did take a Fine for this measurage and made an Office of it and this he conceived was Extortion which is the thing complained of here in so many words and being upon the Thames should be punished in the Admiralty As to that the Iudges replyed by no means and Wrey Gawdey said if it be Extortion in the Mayor there is no remedy for it in the Court of Admiralty but in the Kings Courts and it shall be redressed here in a Quo Warranto says Gawdy 'T is true a Quo Warranto might well have been brought for redressing that Extortion but it could not mean thereby that the Corporation should be dissolved And that it was so understood is most plain for accordingly a Quo Warranto is brought You have it in Cokes Entries fol. 535. and 536. placit ' 4. And the City of London appeared and pleaded and prescribed to it and thereupon the Attorney General that then was my Lord Coke himself was satisfied and confessed their Title and Iudgment was given for them and since it hath been held good and they have enjoyed it in peace and this I hope is a good Example for Mr. Attorney to follow in this Case My Lord I come now to that part which I come least willingly to I mean that of the Petition and that which I have to say in it is this my Lord. First I say That this Petition is justified in the Pleading and I hope it is very justifiable if it were but excusable 't is enough That it is justifiable to Petition the King in our necessities and extremities is plain from what my Lord Hobart says fol. 220. He says it was resolved by the Court in Renham's Case that it was lawful for any Subject to Petition to the King for a redress in an humble and modest manner For as 't is there said Access to the Sovereign must not be shut up in case of the Subjects distresses Now the Common Council are not less priviledged than any other sure but rather more in this kind of Addressing and Petitioning I cannot tell what Crime to make of this there is so much alledged against us I did very well observe truly and would always observe and remember in all such Cases what my Lord-Kéeper here said to your Lordship That Council should not so much speak as if they would abett the Guilt of their Clyent rather than advocate for their innocency My Lord If the words themselves that are alledged are not words that are unlawful to be delivered or spoken then all this that they are dressed up with of the intention to censure the King and to bring him into dislike with his People all that must go for nothing and are not to weigh in the Case Now the Words are these That there was a Prorogation and by means of this there being depending so many Impeachments of Lords and others and Bills in the Parliament in both Houses which could not be perfected any where but there the prosecution of the publick Iustice and the making Provisions necessary for the preservation of his Majesty and his Protestant Subjects received an interruption Now my Lord I conceive these Words are not Words that in themselves are unlawful And for that your Lordship will be pleased to consider our Plea I néed not repeat it you have it before you If they are in sense and substance the same Words that have béen spoken by the King and the Lords and Commons in Parliament he that will not be satisfied with that Authority will not be satisfied with any Then what do we say We say that the prosecution of the publick Iustice received an interruption does not the King say so and more in his Spéech we have set forth wherein he recommends it to both Houses that Iustice may be done What is the meaning then but this if the further prosecution of the Offenders goes not on Iustice is not done and so we speak but the Kings Words We say they are not tryed or they were not tryed they themselves complain of it to this day and therefore Iustice did receive an interruption I am confident without reflection that Honourable Person my Lord Danby in this point hath said Words much more liable to exception though truly Words that I believe deserve no rebuke He has complained that Iustice was not done in his Case because he was not tryed and that when he desired to be tryed too but his Liberty taken away and he forfeited that which was dearer to him than Lands or Honours his Health whereby he endangered his Life and lost all the comforts of Life If it were lawful for him to say as certainly it was That Iustice was not done in his Case why might not the City say so Either these Lords ought to be condemned or they ought to be acquitted 't is hard to say Iustice is done when they lie so long in Prison and are not either acquitted or condemned Then we say this That the making Provision for the preservation of the Kings Person and of his Protestant Subjects received an interruption To this part we give this Answer We set forth That there were Bills depending in the Parliament for this purpose and that is agréed to us by the Demurrer and that these Bills could not pass into Laws any more than the Lords could be tryed but in Parliament Why then if so be it be so that the matter cannot be done nor provision made but as that Proclamation that issued for the Fast said and as the Addresses of both Houses for the Fast do say By the blessing of God upon the Counsels of King and Parliament if
Ed. 3. which I mention though I think we have no néed of that in the case to help us if they make a unreasonable By-law 't is void and every man that is aggrieved by it may have his Remedy may bring his Action Shall you supply this by an intendment that they have such a relation That they are the Representatives of the City of London That they have a power to forfeit the Corporation No my Lord by Law they are part of the Corporation but they have no such power to forfeit the Corporation A custom shall never be construed to enable a man to do a wrong and a great wrong it is that they that are trusted and trusted but for a year and trusted but for the good of the Corporation of which they are part should give up the being or what is worse forfeit the being of that Corporation The custom of Kent that makes an Infant capable of making a Feoffment shall never inable an Infant Tenant in Tayl to make a Feoffment so as to work a discontinuance of the Estate Tayl and put the Heir to his Formedon Every illegal Act of theirs is beyond their Commission and a nullity of that is all in respect of themselves and 't is as if they the had never done it as to the Corporation for they are by no means the Corporation for tho they use the Comm Seal in some cases at some times so do the Court of Aldermen in other cases but it is only in other cases wherein they are particularly intrusted If an Act of Common Council say that I shall have such and such Lands of the Cities that Act fignifies nothing but as a direction and advise when 't is under the Common Seal 't is an Act of Corporation and procéeding by advice of Common Council it binds Now my Lord this is the more unreasonable because we know that the practice of the Common Council in London being to advise for all the Inhabitants they are chosen by the unfrée-men as well as others and 't is a strange thing that they should have a capacity to give away the liberty of the Citizens when they are chosen by others as well as them they had no such trust for them nay all trust they had was to kéep their Liberties and not to destroy them Has any Man a trust to destroy himself sure no Man is trusted by God himself to be felo de se And certainly then you can never understand it to be in the nature of a Trust to destroy another and the least Citizen my Lord has as much and as true an interest in the Corporation of the City of London as the greatest And therefore 250 if they had béen much the greater number of the Citizens would signifie nothing to the rest of the Body My Lord I shall only say this little more here is no crime charged relating to them as a Corporation Here is indéed a fine word used that we did this contra fiduciam in corpore politico repositam but all this is but an imaginary Trust the King never gave them a power or authority or entrusted them to make By-laws that were unreasonable he gave them a power to make reasonable By-laws and so he does every Corporation And the same Law that gave them the power limits that power and says if they go beyond that power 't is a nullity And these Acts relate not to them as a Corporation the Petition is not so much as said to be against any trust reposed in the Corporation certainly there never was any such Trust Did ever the King entrust them to advise him about the matters contained in the Petition and if not then 't is not contra fiduciam therefore it relates to particular persons If it be an Offence I hope 't is none of the Corporations But then the levying of Mony that is contra fiduciam they took upon them an illegal and unjust power in the Common Council Suppose it so how does this belong to the Corporation 't is an encroachment upon property 't is the most arbitrary thing in the world Whether they have the Market and the Dominion of it or not is matter of Fact and being pleaded is confessed by the Demurrer And then for the power of making By-laws that is a thing that cannot possibly be taken from them while they are a Corporation 't is that which must be in them as a Corporation like the faculty of Reason in a Man to express his Resolutions by And 't is no more than if a man that has a Market bid his Servant go and remove such as have Stalls there unless they will pay so much That direction is as good a Law as this and as bad a Law as this and no more There is nothing else in it but the direction of the Officers what they shall do in the ordering of the Markets and disposing of the Cities Property Then as to the former method of expressing themselves whether it be by Act of Common Council or under the Common Seal or by their natural Voice 't is all one 't is not a thing that concerns them as a Body Politique But if it were illegal and mistaken I say the Penalty is only that it shall be void What the Common Council nay what the Corporation does within the limits of its Authority is good what beyond that it does is void If I command my Servant to distrain for Rent and he kills a Man in the doing of it this as to me is void but as to himself that is chargeable upon him And what I say of the Common Council I say of the Corporation it self That it is a Capacity and a limited Capacity 't is the act of the Members not of the Corporation if they do wrong The Common Council can act for the good of the City and the City can do no more if they themselves should méet Crooke Eliz. fol. 85. The Quéen makes a Lease for years of Lands to the men of Chesterfield by the name of Aldermen and they by that name grant all their Interest to Clerk says that Book this is void for the Quéen granting them a Lease as to the Aldermen of Chesterfield this makes them a Corporation and gives them a capacity to take but not to grant And so Rolls Abr. 1 p. 513. And therefore no Corporation is to be considered as a Corporation but only when it acts according to the capacity allowed to it and as to the rest it all turns into their private capacity but it affects not the Body nor hath any such relation as to bind it My Lord All the Question here is Whether there shall be such a Person in Esse as this Corporation Whether the City of London shall subsist as such a Person to sue and be sued to plead and be empleaded There is nothing of Government or Misgovernment in the case but 't is all about our Capacity and nothing else whether we shall be
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
these days If then no such power by the Charter given if they cannot doe it without power given them shew me their power or else I think I may conclude sure they cannot Surrender the Corporation without power But the Common Council in London that is by Custom and their power is by Custom Then if the Question be what is their power it is answered what they have used and accustomed to doe that they may doe what they have not used or accustomed to doe that they cannot doe for if Custom and Vsage be the authority that authority can go no farther than their Custom and Vsage goes Then put the Question have the Common Council used to Surrender or Forfeit the Charter no body can say it what reason then is there for any man to say they can doe it It is probable that the Common Council in London had first their Institution from some By-Law or Ordinance though now not to be produced but consumed by time But be it that or any other imagined Commencement can it be imagined that those that gave them their Original authority gave them power to surrender the Corporation or forfeit it Suppose that the power given them did authorize them not only to make By-Laws and Ordinances for the good order and government of the Corporation to grant or demise their Lands and Revenues but had some general words in it to act and manage the matters of the Corporation Is it not against all sense to suppose that that which is deputed and constituted for the well-ordering and managing of the Corporation should have power to surrender it Then as the Counsel of the other side argue that because they may surrender they may forfeit By the same reason I hope I may argue if they cannot surrender or dispose of the Corporation they cannot forfeit Next Those Acts of the Common Council are not done neither in the name nor as the Acts of the Corporation nor under any Seal but do import in themselves only to be the Acts of the Common Council The Ordinance That is made by the Mayor Aldermen and Commons in Common Council assembled The Petition is the Petition of the Lord Mayor Aldermen and Commons in Council assembled Their Leases or Grants are in the names of the Corporations and under the Common Seal and the Common Council only Ministerial to the Corporation in ordering managing and disposing all for the benefit and advantage of the Corporation to avoid the Inconveniency of assembling the numerous Body But that any thing that hath but a ministerial power for the service and benefit of their principal should have power to dispose of sell convey or surrender and destroy their principal is no consequence in Law or Reason No Deputy-assistant or Bayliff hath such power if he excéed his authority his Act is void Is it not so with all Authorities and derived Powers what they doe beyond their authority cannot bind those from whom they derive it It cannot be the Act of the Corporation for a Corporation cannot make a Petition no more than they can make a Déed or subscribe a Writing except under the common Seal Corporations cannot make a Lease at will 12 H. 7. 25 26. 9 E. 4. 39. licence a Man to enter upon their Lands or doe any like Act but under their common Seal Nor can they commit a Trespass or Disseisin but by Command precedent or Assent subsequent under their common Seal How then can this be their Act There is nothing in it that imports it should be theirs nor ever intended to be theirs it is not done by them nor in their names but by the Common Council and in the name of the Common Council If we may take notice of what is out of the Record we know that they have in London a greater Assembly than the Common Council viz. The Common Hall wherein the Common Council are no more than others Can the Petition of the Mayor or Mayor and Aldermen in their names be taken to be the Act of the Corporation if that cannot be why should the Petition of the Common Council in their own names be any other than their own Petition as their Ordinance and By-Law theirs and not the Corporations The Case of Corporations takes notice of their Power as Common Councils Rep. 4.77 to exclude the Commonalty and the rest of the Corporation 13 C. 2. cap. 5. The Act allows the Common Councils ordering Petitions But where is it to be found that it was ever said or thought on before that they could forfeit or dissolve the Corporation 4. But supposing all that I have said against me And suppoposing the Acts of the Common Council to be the Acts of the Corporation And supposing those Acts viz. The making the Ordinance and Petition not justifiable or excusable Then the great Point will be whether they or either of them are such Miscarriages or Offences in Law for which the Charter that is the very being of the Corporation shall be forfeit This I call the great Point for I think it to be as great in Consequence as ever any at this Barr as if Magna Charta were at stake for in my apprehension not only London but all the Corporations of England and the Government of England will be deeply concerned in the Question For let us but consider what a vast part of England is concerned in the Corporations of England 1. Ecclesiastical or mixt as Archbishops Bishops Dean and Chapters Parsons Vicars Vniversities Colleges Hospitals of all sorts 2. All the Cities and considerable Towns and Boroughs in England 3. The very Frame of our Government is concerned for one of the Estates of the Kingdom viz. The Commons in Parliament consists of Knights Citizens and Burgesses the Citizens and Burgesses are usually chosen by them that are Free of the respective Cities and Corporations and where not chosen by them yet the Elections are generally under their Power and Influence and the Return made by them Perhaps also a Peerage is a sort of Corporation Perhaps the World it self at least this little World will no longer be able to subsist in health than the due Order and just Temperament of the several Parts and Powers therein are preserved and contain themselves within their own Bounds The taking away or Infeebling any principal Part brings a Lameness and Deformity Pain and Disorder upon and at length confounds the whole The Laws answer their ends whereof the principal is the preservation of the Government which preserves the Laws they cannot subsist one without the other therefore whatsoever it is that tends to the Subversion or leaving at Will and Pleasure that which is so considerable in our Government as Corporations are ought to be throughly considered The better to examine and consider this great Point In the first place the Reasons given on the other side are Object 1. That if Corporations be not forfeitable for their Miscarriages they will attempt and doe
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
or Being Lands Goods and all This cannot be agréeable to any Rules or Reason of our Law and therefore I take it it cannot be the Law The next thing is the Mischiefs and Inconveniences 2. The Mischiefs and Inconveniences that must attend this Doctrine or Law of Forfeiting and Surrendring if the Law be so 1. First Let us consider whether this at one stroke do not make all the Corporations in England of all sorts forfeit at once and perhaps many years since Is there any Corporation in England that hath not Offended or Transgressed all manner of Corporations fall under this Rule If they have transgressed or done any such Act as makes a Forfeiture as every miscarriage for any thing I can see to the contrary doth whether the Corporation be ipso facto dissolved by the Offence committed or else by the Iudgment which must relate to the Offence to avoid all mean Acts done by the Corporation All that they have done since such Miscarriage they have done without right and all that they think they have a Title to as a Corporation they are mistaken in they have none Perhaps if a Parliament should be called those forfeited Corporations can lawfully send no Burgesses I do not know whether I am mistaken or not I only offer this to Consideration amongst others As give me leave to venture a little farther upon these Considerations of Surrenders and Forfeitures of Corporations Can a Bishop Dean and Chapter Prebendary Parson c. surrender his Corporation or Body Politick If they can most of them perhaps are of the foundation of the Crown and had their Lands from thence We have many Statutes made to restrain their Alienations Those of Queen Elizabeth did not extend to hinder their Alienations to the Crown but perhaps out of hope of Preferment they aliened to the Crown till the Statute of 1 Jacobi cap. 3. took away that Power also of conveying to the Crown Can these forfeit the Corporations Perhaps we are Sinners all or at least as the ballance at some time or other may be holden may be found too light we are upon a point that goes to posterity fear and favour what may it doe and what may it not doe If they may surrender a forfeit what effects may this have upon the whole Ecclesiastical Estate If this had been known in the days of King Henry the Eighth perhaps there would have been no great need of Acts of Parliament to make him Head of the Church or to have dissolved the Monasteries Suppose that Colleges Hospitals and other Corporations founded for Charity can surrender or forfeit the present Masters and Fellows and the Heirs of the Donors may truck what effect may this have upon them what ways may they find out Also Cities and Boroughs what Divisions and Contentions hath it already produced some for surrendring others for defending what Animosities are about it The end of the Law is to preserve Peace and Quiet Divisions and Dissentions frequently end in the Destruction of both Parties The Citizens and Burgesses are I think three parts of four of the House of Commons It is considerable what Effects this may have in Parliaments our Laws and Posterities perhaps not a little concerned herein and if so surely this is a great Case But if only the City of London give me leave to see what the ill Consequences and Mischiefs will be Arguments from Mischiefs and Inconveniences are forcible Arguments in Law Inst 1. 11. 60. So saith Littleton and my Lord Cook upon Littleton and men must be desperate and sensual that despise future Mischiefs and Inconveniences and many other places there cited First all their Lands will be gone and revert to the Donors and their Heirs By Dissolutions of Corporations all their Privileges are gone Jones 190. and their Lands revert to their Donors F. N. B. 33. k. Inst 1. 13. b. or Lords of whom they were holden Secondly All their Markets Tolls and Duties that they claim by Prescription whereby the Government and the Honour of the City the Publick Halls Gates Prisons Bridges and other Edifices are in a great measure maintained Thirdly All the Debts owing to the City and all their personal Estate by the death or dissolution of the Corporation will be gone but who shall have them perhaps non difinitur in jure Fourthly all the Liberties and customary Privileges that the Freemen of the City their Wives and Children claim viz. to have customary shares in their Husbands or Fathers Estates To be exempt from Tolls In other Towns Ports and Markets to exclude Foreigners and Vnfreemen from using their Trades in London and many others Fifthly All the Acts of Parliament that give particular Powers and Authorities to the Lord Mayor and Aldermen or Common Council or Corporation respecting either the Government or Iustice of the City as about Ministers and payment of their Dues Buildings Paving of Strats Sewers Ensurance Office and many others Sixthly What shall become of the Orphans and all the Moneys and Debts the City owes and all the Charities in the City We have seen the City burnt and may remember what a Swarm were unhived thereby but we never yet saw it dissolved nor are the consequences measurable And though it please his Majesty upon the Dissolution of this to grant a new Charter yet it will be impossible any of these things can be preserved Their Lands Estates Debts Privileges Customs are all personal and annexed to the Corporation and must live and dye with it the said Acts of Parliament are all fixed to this Corporation and so are the Charities and cannot as I conceive be ever transferred to any other to be new created A new Corporation can be in no succession or privity with the old If a Body Politick be once dissolved though a new one be founded of the same Name Inst 1. 102. b that can have no succession to the old nor come in privity to it Therefore is it that in the Deau and Chapter of Norwich Case and in Fulcher and Heyward's Case the Preservation of the old Corporation is insisted on If every Abuser committed by a Corporation be a Forfeiture Determination or Dissolution Is there any one in England not forfeited and dissolved Abuse is a word of wonderfull large sense when the Law speaks of a Franchise abused or misused it is applicable to a particular Franchise as to a Market Court or the like and if that Franchise be misused or abused in Oppression or misuse contrary to the ends of it some certainty there is in it But the Abuse of a Corporation extends to all its Acts and all Estates of the Corporation and all the Privileges of all the particular Persons and all that are concerned in them are sufferers for every Abuse or Misuse or Mis-act or Trespass how small soever Who can tell in the Actions of a Person what may be taken to be ill or illegally done or an Abuse Who will trust a
Persons but their Masters or those that deputed or delegated them for another purpose they are innocent they shall not suffer by it though no Acts of Parliament had been in the Case If the Acts of Parliament against Seising the Liberties of the City for or by reason of any miscarriage of their Officers or Ministers extend to these Acts of the Mayor Aldermen and Common Council If so be that these Acts were the Acts of the Corporation Yet with Submission if they have shewn a good and legal Right by their Custom and Title to make By-Laws for regulating and settling the Markets and Tolls and that which they have done be as pleaded reasonable and that there was reasonable Ground at that time for their Petition which they have set forth If all these particulars that I have now summ'd up be against me then Iudgment must be against me though I know not what that Iudgment can be But if any one of these particulars thus repeated be for me and against Mr. Attorney then Mr. Attorney can have no Iudgment against the City But Iudgment must be for them Which I humbly pray The next Term viz. Trin. 35 C. 2. Ch. Iust Saunders dying the day of the Iudgment given or the next day after Mr. Iust Jones Iust Raymond and Iust Withens being in Court Iust Jones pronounced the Iudgment of the Court and Iust Raymond and Iust Withens affirmed that Ch. Iust Saunders was of the same Opinion with them and that they all agreed 1. That a Corporation aggregate might be seised That the Stat. 28 E. 3. c. 10. is express that the Franchises and Liberties of the City upon such Defaults shall be taken into the King's hands And that Bodies Politick may offend and be pardoned appears by the general Article of Pardon 12 C. 2. whereby Corporations are pardoned all Crimes and Offences And the Act for regulating Corporations 13 C. 2. which provides that no Corporation shall be avoided for any thing by them mis-done or omitted to be done shews also that their Charters may be avoided for things by them mis-done or omitted to be done 2. That exacting and taking Money by the pretended By-Law was Extortion and a Forfeiture of the Franchise of being a Corporation 3. That the Petition was scandalous and libellous and the making and publishing it a Forfeiture 4. That the Act of the Common Council was the Act of the Corporation 5. That the Matter set forth in the Record did not excuse or avoid those Forfeitures set forth in the Replication 6. That the Information was well founded And Gave Iudgment that the Franchise should be seised into the King's hands but the Entry thereof respited till the King's Pleasure was known in it Iust Raymond and Iust Withens declare that they were of the same Opinions in omnibus And accordingly after Entry made by Mr. Attorney That as to the Issue joined to be tried by the Countrey As to the claiming to have and constitute Sheriffs As to the having the Mayor and Aldermen to be Iustices of the Peace and to hold Sessions quod ipse pro Domino Rege ulterius non vult prosequi Iudgment is entred Ideo consideratum est quod prefat ' Major Communitas ac Cives Civitat ' Lond ' as to the Issue aforesaid betwixt our Lord the King and them joined and as to the Liberties and Franchises aforesaid by them claimed to have and elect Sheriffs and to have their Mayor and Aldermen to be Iustices of the Peace and hold Sessions Eant-inde sine die salvo jure Dom. Regis si al' c. Et quoad dictas separales materias in lege unde tam pred' Att ' Gen ' quam pred' Major Communitas Cives Civitat ' pred' posuerunt se in Judicium Curiae the Court advise till Trinity Term and then pro eo quod videtur Curiae hic quod prefat ' Major Communitas ac Cives Civitat ' pred' forisfecerunt Domino Regi nunc Libertat ' Privileg ' Franches pred' ob causas in Replicacon ' prefat ' Attorn ' Gen ' superius specificat ' quod Placita prefat ' Major ' Communitat ' ac Civium Civitat ' pred' superius rejungendo repellando in ea parte placitat ' materiaque in iisd ' content ' minus sufficien ' invalid ' in lege existunt ad precludend ' dict' Dom ' Reg ' a Forisfactura pred' aut ad Major ' Communitat ' ac Cives Civitat ' pred' ad clamand ' Libertat ' Privileg ' Franches pred' sibi allocand ' adjudicand ' manutenend ' maturaque deliberacione superinde prius habit ' Considerat ' est qd ' Libertat ' Privileg ' Franches pred' sore de seipsis unum Corpus corporat ' Politic ' in re facto nomine per nomen Majoris Communitatis Civium Civitat ' Lond ' ac per idem nomen placitare implacitari respondere responderi per eosd ' Majorem Communitatem ac Cives Civitat ' London pred' superius clamat ' capiantur seisiantur in manus Domini Regis quod prefat ' Major Communitas ac Cives Civitat ' Lond ' pred' capiantur ad satisfaciend ' dict' Dom ' Reg ' de Fine suo pro Usurpatione Libertat ' Privileg ' Franches predict ' Postscript THE Question concerning the Surrender of Corporations or Bodies Politick not being directly in the Case but in the Arguments on both sides insisted on it may not be unnecessary to state that Point and collect what hath been in the Debates or Arguments alleadged on either side that the easier View and Iudgment may be made of it By Surrender in this Question is by both sides meant and intended some Deed or Instrument in writing whereby a Body Corporate or Politick can surrender and dissolve it self It is agreed that a Body Politick may be dissolved either by the Death of the Persons incorporate or their Refuser to act nominate or elect Officers or Ministers so as there remain not sufficient authorized or enabled by their Charter or Constitution to preserve their Being This is admitted to be a Cesser or Dissolution of the Corporation and such a sort of yielding up or Surrender is admitted possible But whether by any Deed or Instrument in Writing it can be done that is the Question intended For the Surrender It hath been alleadged 1. That the Being of a Body Politick is a Liberty Privilege and Franchise that had its Commencement by the King's Charter or by Prescription which supposes a Charter and if it have its beginning and Creation by Charter which is the Kings Deed that grants it by Deed again it may be regranted and surrendered And 't is a Maxim in Law Unumquodque dissolvi potest eod ' modo quo ligatur And instances in Fairs Markets Leets and such like Franchises granted by Charter which say they may be surrendered by Deed or
Regrant 2. That it is necessary that it should be dissolvable by Surrender perhaps a Town may come to decay and not be able to defray the charge that the Support and Maintainance of the Corporation may require for every one sees that Ornaments and Officers must be and these cannot be bought or maintained without Estates and poor men are not able without ruine to their Families to bear the Magistracies and Offices And therefore necessary there should be a Power in them to surrender 3. That the Books and Cases in Law do prove That a Corporation or Body Politick may surrender itself and thereby be dissolved Dy. 273. There the Case is thus stated The Deanry of the Cathedral Church of Wells was dissolved by the Surrender of Fitz-Williams tempore H. 8. And the Prebend of Currey in the same Church was also surrendered by Goodman Prebendary there 1 E. 6. And in this Year the Dissolution of the Deanry was confirmed and the Deanry extinct by Act of Parliament and a new Dean erected and created to which new Deanry the Lands and Possessions of the old were annext amongst other Possessions and the Nomination of the new Dean and Successors given by that Act to the King and that he should have the same Power in Choro Capitulo as the old Dean had saving to all Strangers other than the Bishop of Bath and Wells the old Dean and the old Prebendary and their Successors In this case 't is admitted and taken for granted that the Deanry and also the Prebend were surrendered Dy. 282. There the Archbishop of Dublin had two Chapters viz. the Dean and Chapter of St. Patrick and the Dean and Chapter of Christ-Church and both these used to confirm the Bishops Leases The Dean and Chapter of St. Patrick by Deed under their common Seal gave and surrendered all their Church Houses Lands and Possessions to the King without license or consent of their Bishop being their Ordinary and Patron of the most part of the Prebends After this Surrender their Church was used as the Common Hall for the four Courts in the Term there and a Lease is made by the Archbishop confirmed by the Dean and Chapter of Christ-Church only and whether the Successor of the Archbishop were bound by this Lease was the Question The Iudges in Ireland were divided in Opinion and thereupon the Case sent over for the Opinion of the Iudges here and the Opinions and Resolutions of five Iustices viz. Catlyn Dyer Saunders Welsh and Carus certified to the Lord Deputy of Ireland under their Hands were quod non fuit aliud Capitulum in esse tempore confirmationis Dimission ' pred' nisi Christ-Church tantum quia Corporatio Capitulum Sancti Patrick fuit per donum sursum reddition ' Decani Capituli pred' legitime dissolutum absque consensu Archiepiscopi Jones 168. The Opinion of Iustice Jones there That a Corporation may be dissolved by an Act proper viz. by Resignation On the other side it hath been answered 1. Admitting it to be true that to be a Body Politick is a Liberty Privilege and Franchise created by Charter which is the King 's Deed. Yet it doth not follow that it may be surrendered by Deed. For the Charters that incorporate the Citizens or Inhabitants of such a City Town or Place and make them a Body capable of taking and having Lands Goods or Chattels to sue and to be sued and to have a Common Seal and to act according to the Powers Ends and Purposes in their Charters contained only give them a capacity for those Ends. The Liberty Privilege and Franchise that they have goes no farther They cannot transfer this Privilege or Franchise to any other Persons These are only personal Franchises or Capacities fixed in the Persons in whom they are granted Like to Patents of Denization granted to Aliens whereby a capacity is granted to have hold and act as a natural born Subject Grants of Enfranchising a Villain These are Grants that cannot be surrendered These are Franchises and Capacities like this These are Exceptions to the General Rule Unumquodque dissolvitur eodem modo c. So also of Fairs Markets Courts c. They are created by Charter they may be granted over or granted to the King but if they be regranted to the King they are not extinct but remain in the King Abbot of Strata Marcell's Case Rep. 9. 25. b shews the difference thus When the King grants Franchises that were in the Crown before the Grant as Bona Felonium Deodands Wreck c. and these come again to the Crown they are merged in the Crown and the King is seised of them jure Coronae But when a Privilege Liberty Franchise or Iurisdiction was at first erected or ordained by the King there by the coming of it again to the Crown they are not extinct and instanceth in Fairs Markets Hundreds Léets similia They are not dissolv'd or gone for thereby Subjects would be prejudiced For if the Court should be so granted and thereby dissolved the Subjects Iudgments and Suits in those Courts would all be lost These are other Exceptions to that general Rule Unumquodque c. 2. That the Reason given for the Surrenders of Corporations from the poverty that may happen for the conveniency of some Corporation is answerable for that doth not very frequently happen But when it doth happen if they are weary of it they may let it alone and not act or choose Officers it will cease of it self néed not be at the charge or trouble of a Surrender But on the other side the Inconveniences are very great and are some of them before specified The Establishment of the Church is all in Corporations Bishops Deans Chapters Prebends Parsons Vicars if these be surrenderable as by the Cases cited without consent of Bishops a Prebend is as to his being but as a Parson or a Vicar The Vniversities Colleges Hospitals all the Cities considerable Towns Trades and Mysteries are Corporations if these be surrenderable it affects our old Government 3. As for the Books and Authorities Dy. 273. the Dissolution of the Corporation thereby surrendred is only mention'd in putting the Case it is not debated nor was it material in the Case For the Act of Parliament there settled the new Dean and Chapter and the Prebendary and the matter of the Case ariseth upon the Deprivation of Dean Goodman and the appeal and reversal of that Sentence there is not as much as any Opinion in the Case concerning the Dissolution or Surrender whether good or bad But what may reasonably be inferr'd from that Case is That the Surrender and Dissolution thereby was not good in Law for if it had what needed the having an Act of Parliament to secure against the old Dean and Prebendary which appears in the Case was had And Co. Rep. 3. 75. b. in the Case of the Dean and Chapter of Norwich This Case of Dyer is cited and there expresly