Londons Liberties OR A LEARNED ARGUMENT OF Law and Reason Before the Lord Mayor Court of Aldermen and Common-Council at Guild-Hall Between Mr. Maynard now the Kings Eldest Serjeant at Law Mr. Hales late Lord Chief Iustice of the Kings-Bench and Mr. Wilde lately one of the Justices of the same Court Of Council for the Livery-Men of London And Major Iohn Wildman and Mr. Iohn Price Of Council for the Freemen of London Wherein the Freedom of the Citizens of London in their Elections of their Mayor Sheriffs Aldermen and Common-Council-men is fully debated their most Ancient Charters Examined and on both hands agreed to be but a Confirmation of their former Rights With their Opinions concerning the Forfeiture of Londons Charter LONDON Printed for R. Read 1682. THE PREFACE THE unusual methods that have been made use of in the Election of Sheriffs for London and Middlesex for the year ensuing having raised great Disputes among the Citizens concerning the Manner of Chusing their Chief Officers and those Disputes produced great Heats and Animosities I thought it my Duty both as a Protestant and an English-man to use my utmost endeavours for putting an end to such Disputes that so the Cause being remov'd the Effects might cease To this purpose I suppose the publication of the following Sheets will be judged very seasonable by all unbiass'd Men for whereas these Disputes and Heats have engendered many Phamphlets which have rather added fuel to then extinguish'd the differences that have happen'd upon this occasion between the Citizens that adhere to the Lord Mayor and those that adhere to the Sheriffs Methinks this Argument though now almost two and thirty years old seems by Divine Providence to have been calculated for deciding the Differences aforesaid and I question not this good Effect if Men will lay aside Passion and Prejudice and entirely resign themselves to the conduct of Law and Reason upon both which we cannot doubt but the Argument is founded unless we should suspect want of skill in those three great Oracles of the Law One of whom was the late incomparable Lord Chief Iustice of the Court of Kings-Bench another one of the Iustices of the same Court and the third now living his Majesties Eldest Serjeant at Law And certainly if any man should be so absurd as to affirm that any one of these three much more that all three of them jointly should be mistaken in an Argument of such consequence he would discover more Ignorance than Malice August 26. 1650. The Report of the Committee appointed for Examination of the State of the Chamber of London ABout 1630. we find the Chamber to be indebted about the Sum of 050000 00 00 At Michaelmass 1649. the Accompt of the Chamber being then Cast up the Chamber was then in Debt Viz. To Orphans 169654 01 05½ 264066 14 09½ To other Persons for Principal Money 094412 13 04 The means whereby it came into Debt are either Extraordinary or Ordinary Extraordinary Anno  l. s. d.  A Gold Cup given the Prince 001191 04 05 1633. Presents given to the King Queen and Prince 003260 00 00 1634. A Jewel given the Queen 004000 00 00 1634. Entertainment of the King and Queen at Merchant-Taâ—lors-Hall 001287 12 08 1634. Christening the Duke of York 000633 00 00 1639. A Cup of Gold given the Queen Mother and other Charges 001000 00 00 1639. Charges of the Charter 002355 00 00 1639. Given the King 010000 00 00 1639. Composition for Package and Scavage 004000 00 00 1649. Composition for London-Derry 012000 00 00 1639. To the Repair of St. Pauls 000600 00 00 1642. Entertainment of the King and Queen 001786 00 00  For Building the Bridge 006400 00 00  For Ship-money and setting out Ships to Sea 017218 00 00  By Gifts and Rewards to Officers for 20 years at 1200 l. per Annum 024000 00 00  By several bad Debts 089730 17 01   071739 14 01 Ordinary Charges for Marshal Causes for twenty years 035278 00 00 For Interest-money paid 20 years at 6000 l. per Annum 120000 00 00 By delivering up Bonds to be Cancell'd by Act of Common-Council in 1640. to several Persons for money lent them out of the Chamber 20 years before about 30000 l. Principal in all with Interest 060000 00 00 For Officers standing Fees for about 20 years at 1400 l. per An. 028000 00 00 For Workmens Wages for 20 years at 1000 l. per Annum 020000 00 00 Stuff for Reparation for about 20 years at 1600 l. per Annum 030400 00 00 The totall sum given lost and expended for about 20 years is 455148 11 02 Present Mr. Sheriff Pack Mr. Ald. Chiverton Col. Mumering Mr. Cole Mr. Barbone Mr. Dallison Mr. Ald. Hayes Mr. Ald. Titchborne Mr. Gibbs Mr. Boltâ—n Mr. Adams Mr. Manton August 26. 1650. Those Men being very sensible of this horrid abuse of the City that the Chamber which hath been esteemed like that among the Romans a Sacred Treasury for safety and pitying the Orphans cryes And searching how the City came to be thus Bankrupt it was found that the chief Officers had been very faulty and thereupon it was considered how they were Elected and there arose the Question about the Right of Electing the chief Officers of the City And it came into Debate whether the Livery-Men ought to be the Electors as now they are Thereupon the Companies of London Petitioned the Court that they might continue their Elective Power And divers Freemen of the City Petitioned for the Abolishing that Power of the Liveries or Companies the Petitions are these To the Right Honourable the Lord Mayor of the City of London and to the Right Worshipful the Aldermen his Brethren and the Commons in Common-Council Assembled The Humble Petition of the several Companies and Societies of the City of London Humbly Sheweth THat whereas it appeareth That heretofore for divers years many great differences did arise within this City touching the Election of the Lord Mayor and Sheriffs to the great disturbance of the Peace thereof the said Elections being made divers and several ways and with continual alterations and often disturbances viz. in the seventh year of King Edward the third by the Mayor and Aldermen together with the most sufficient men of every Ward in the Eighth year of the said King as the King's Proclamation then commanded By the Aldermen and the most discreet and ablest Citizens of the City In the twentieth year of that King by the Mayor and all the Aldermen and twelve eight or six of every Ward according as the Ward should be great or small of the richest and wisest men of every Ward In the fiftieth year of the said King by a certain number of the good men of the several Mysteries their Names being certified by the several Companies In the eighth year of King Richard the Second by the Common-Council and the most sufficient men of the City In the ninth year of that
King by those as should be summoned of the most sufficient men of the City or of the Common-Council In the seventh Year of King Edward the Fourth by the General Council the Masters and Warden of every Mystery of the City coming in their Liveries and by other good men especially summoned and so the said unsetled Elections continued with many disturbances untill in the Fifteenth year of the said King Edward the Fourth That the same Election was setled by Authority of this Honourable Court of General Council by an Act then made That the Master and Wardens of the Mysteries of this City meeting in their Halls or other fit places and associating with the good men of the Company cloathed in their last Liveries should come together to the Guild-Hall of this City for the Election of the Mayor and Sheriff And that no other but the good men of the Common-Council of the City should be present at the said Elections which course and custome hath been ever since yearly used and continued to the honour peace and happiness of this City and the well setled Government of the same And forasmuch as the Petitioners are given to understand that there is an endeavouring to deprive and take from them that their ancient and lawful Right for the Election of Lord Mayor and Sheriffs which for near two hundred years together they and their Predecessors the Livery-men of the several Companies have lawfully and quietly enjoyed as belonging to them without any question or disturbance Their humble desire and request therefore is That this Honourable Court will be pleased to take their just Cause into your serious Consideration that as they are for the most part the ancientâ—st and most able Citizens of this City and do undergo as always they have done the greatest part of the Charge and Service within the same so they may not be put from that their Right of Election as they and their Predecessors Livery-men have without alteration or disturbance lovingly and peaceably held and enjoyed ever since the said Act of the 15th of Edward the Fourth being near two hundred years as aforesaid or be discouraged from bearing Charge giving Attendanâ—e and performing services as they have always done and performed for the honour and good of this City And they shall according to their duties pray c. Mercers Tho. Chamberlain William Barbe Grocers Samuâ—l Harsnet William Hulme Drapers Francis Peeke Peter Iones Fishmongers Tho. Lusher Gyles-Baggs Goldsmiths Iohn Terry Iohn Perrin Skinners Iohn Garrard Iohn Southwood Merchant-Taylors George Alpers Richard Orme Iohn Green Haberdasher Iohn Redding Salter Robert Cravenor Ironmonger Vintners William Field Wiliiam Iames. Cloth-workers Iohn Milles Edward Chard I. Sadler To the Right Honourable the Lord Mayor Aldermen and Commons in Common-Council Assembled The Humble Petition of divers Freemen Inhabitants of this Honourable City Sheweth THat whereas the Ancient Liberties of the City did admit only Freemen of the same to have his Vote in the choice of the Supreme Magistrates thereof The imposition of the Governours upon a People without their voluntary Election importing the prevalency of meer Tyranny and Slavery And whereas the Livery-men of each Company thereof not chosen either by the City or their respective Companies and therefore not Representeeâ— either of the one or the other have for many years past imposed such Supreme Magistrates upon the same City as they pleased without the sufâ—'rage of the Freemen thereof either by themselves or Representees chosen for that purpose and for which end your Petitioners humbly conceive this Court hath been Constituted and sworn upon the election of the Representative Members thereof in their several Wards The premises considered the Petitioners humbly pray that by an Act of this honorable Court such a competent number of Representees my be annually chosen by the Freemen of every Word in their respective Words who together with the Common Council-men may be authorized to choose the Supreme Officers of this City Annually for the time to come And your Petitioners shall pray c. THese were referred to a Commitee and Counsel for the Companies there heard And Mr. Price in the behalf of the Freemen from thence it was referred to be fully debated before the Lord Mayor Court of Aldermen and Common Council And on Saturday the 14. of December the Court being sat at Guild Hall the Companies brought for their Counsel Mr. Maynard Mr. Hales and Mr. Wilde Gentlemen most famous in the profession of the Law and the Freemen besides Mr. Iohn Price had prevailed by much intreaty with Major Iohn Wildman as I am informed without hopes of Fees or Rewards to plead their Cause and so the debate begun as followeth Mr. Price My Lord I Only crave leave to speak one word in the behalf of my self for I acknowledge my self to be but weak in the knowledge of the Law and I therefore unable to withstand those Gentlemen of the long robe come only as a Citizen of London to render a reason of my subscribing of that Petition that was presented unto your Honour and this worshipful Court And I hope you will not judge otherwise of my appearing here at this time We began the last time to speak of it to vindicate it to them that opposed us herein And they being the first that spake then we desire that they may likewise begin now and then with your Lordships favour we shall reply to them for my part I thought there had been an issue put to the business and little thought had I to appear any more about it Mr. Recorder They that oppose any thing that is setled to the end to have it altered they usually begin first to shew their grounds or Reasons in all Courts of Justice Mr. Mainard The intent of our coming here is not to introduce any novelty but to maintain the ancient priviledges of this Famous City under which it hath for so many hundreds of years flourished in all Happiness the Earth affords with Peace and Plenty And therefore we conceive we shall not need to produce any arguments to defend our cause but to answer the objections that shall be made by such that do oppose us in the enjoying our Right always presuming that where the Possession goeth there the Right is and therefore if they on the other side have any thing to Object we are ready to give Answers to their Objections Mr. Price We hope we are before such Men as will not take notice so much of the Persons as of the Arguments that are brought on both sides And therefore my Lord I shall begin to proceed where they please The last time this business was under consideration before the worshipful Committee to be heard the business was driven as I conceive to this head by your Opponents to know whether the thing desired by us be in your power to grant to us And whether the things desired by them were in your power to deny them They Pleaded by
their Council that they maintained their Priviledges by Right of Custom so that it was Argued that the Law of Election was not in this Courts Power to give So that your Lordship and this Honourable Court are by them made not so much as Judges much less Parties Mr. Recorder Mr. Price takes it for granted That all this Court understands the State of this Case which they do not and therefore I desire the Question may be rightly stated that is to be disputed upon otherwise you will spend much time and run into confusion and it will be impossible for them that hear you to understand the business so that I desire the Question may be stated and the matter of Fact agreed upon Mr. Price My Lord I had thought to begin where we left the last time and the Question then stated was reduced to this short point Whether the Right of Election of the chief Officers of this City did belong to the Livery-men of the several Companies with the Lord Mayor and Court of Aldermen by vertue of a Law of this Court or by vertue of custome Mr. Recorder I beseech you let it be clear what you go upon Mr. Wildman My Lord I am here desired by many Free-men of this City to appear in their behalf to inforce a Petition of theirs delivered to this Court and they also produced to me a Petition preferred to some others in opposition to theirs And as I conceive that noble Gentleman Mr. Recorder desires that which is very requisite that is That the Question may be rightly stated and so the Arguments produced on either side Now I conceive the Question is this Whether the Wardens Assistants and Livery-men of the several Companies of this City of London ought to have the Election of the Lord Mayor and Sheriffs of London or whether the Freemen in general by themselves or by their Deputies have the Right of that Election City-Counsell The Question cannot be collected from the Petition which prays That the People of the several Wards where many Forreiners inhabit may chuse the Lord Mayor Mr. Wildman My Lord I believe those Gentlemen endeavour so to state the Question that they might make the Court believe that we would split our selves upon that Rock of Popular Confusion but we shall endeavour to avoid that Clamor We conceive the Question to be this Whether the Masters Wardens Assistants and Livery-men of the several Companies of Right ought to Elect the Lord Mayor and the Sheriffs of this City Or the Freemen of the City by themselves or their Deputies It will be concluded on both sides That the Lord Mayor and Court of Aldermen with the Common-Counsel men may have a Right in the Election City-Counsell We say the Lord Mayor and the Aldermen and the Common-Counsel and the Masters Assistants and Liveries of the several Companies have the Right of the Election and Possession of that Right Mr. Price The Question is Whether the Election as it is shall continue or not continue We deny not that the Right of Election doth belong to the Wardens and Livery-men of each Company with my Lord Mayor and Court of Aldermen But the Question is Whether it belongs to them upon such grounds as are unalterable by this Court if they are unalterable by this Court let them shew by what Law if they are alterable we are then in a fair way to have one Petition granted Mr. Mainard There is nothing pretended by the Petition that is endeavoured to be made the Question They do complain in their Petition That this Government which you have so long enjoyed in this City is an Imposition of Tyranny and Slavery and that imposed when I came first hither I thought I was to speak to matter of Right but they decline that and speak to point of Crime Mr. Price It is true these words of Tyranny and Slavery are in the Petition but they are with a Parenthesis I desire the Petition may be read The Petition was then read Mr. Price We say that the imposition of such and such things is slavery but it is not in relation to this Court but in Answer to their Petition who call it in their Petition their Ancient Right if it be their Ancient Right let them shew by what Law And I conceive the Parenthesis is only in Relation to that Expression Mr. Wildman I humbly conceive my Lord and Gentlemen the thing in Question must be collected from the Prayer of both Petitions the Sum of the Prayer of one Petition is this that the Representatives of all the Wards may as of Right they ought Elect the chief Officers of this City Mr. Recorder I think the business before you is to come to the Question in hand and I humbly beg That for expressions on both sides they may be wholly waved and if you will not speak the Question that you would agree of it in writing Mr. Mainard I suppose it is conceived by all what we both aim at I shall be a suitor that those Gentlemen may go on to matter of Argument and I shall speak what I am able Mr. Wildman May it please your Lordship to let me pursue the Recorder's motion We humbly conceive that the Prayer of our Petition must direct us to state the Question we pray no more but this That the chief Officers of the City may be chosen by the several Wards in their Representatives Annually We do admit that the Lord Mayor the Court of Aldermen and Common-Council may have Right of Election because they represent their Wards but we pray that our Right in Electing as we are Free-men may be restored to us Mr. Hales My Lord There 's no Officers of any Corporation in England but are by Usage or Charter and if these Gentlemen be about Officers their Question is about the Officers of a Corporation these Gentlemen would introduce some new thing that hath not been heretofore used and we desire to know upon what imagined pretence they would have it and that they shew us the persons to inforce the thing they desire otherwise why do they Petition Mr. Wildman My Lord These Gentlemen would avoid the true stating the Question and engage us in Logomachiâ—'s contentions about words we would know wherein they oppose the desire of our Petition to have the Ancient Right of the Citizens of Londâ—n restored to them in the Choice of the chief Officers of the City Mr. Mainard We deny That you desire in your Petition is the Right of the City of London It is so far from being their Right that when they put that in Execution they lose their Charter and all their Franchises Mr. Price The Question was reduced to this Whether it was in the power of this Court to alter what was then in custome so that we shall not be lookt upon as adversaries to our Opponents denying this Court their Right of election but if we make it good that the custome was altered by you why then we
trust we serve you in so doing if we prove it in your power to alter it now and it shall encourage us to pray and you also to give what we ask if it shall tend to the good Government of this City If the right of election belong to the Livery it must appear by written Law or by custome time out of minde if by a Law it must be by some Law of the Land or by some Charter or by some Act of Common-Hall or Common-Counsel If it be by Charter we must insist upon the terms of the Charter and expounded the same by succeeding practices and if this Charter granted in King Iohns time be meerly declarative we shall know what the custome was by the succeeding elections If you plead custome we shall finde custome for many years that the chief Officers of the City were elected by the Lord Mayor Court of Aldermen Common-Counsel-men and the Wards of the City and not by the Livery-men of every Company as is desired by these Gentlemen To the 15. year of Ed. 4. they are in use from the 19. year of Ed. the first which was 194 years It was the practice of the City to choose by Wards so long And the Aldermen and Common-Counsel-men are chosen out of the Wards Now for election of Mayors and Sheriffs by the wards we will give you but a place of that plenty we can give to that purpose in the 19. year of Ed. the first 1231. and in the 31. year of Ed. the first In the 19 of Ed. the first out of twelve men of every Ward were the Sheriffs chosen and so was the Mayor Thomas Blun chosen the Sheriffs were chosen by the Lord Mayor the Court of Aldermen and Common-Counsel and twelve men out of every Ward And Iohn Lincoln was so chosen And in the 32. of Ed. the first Iohn Blun was so chosen again and in the 33. of Ed. the first Iohn Blun was chosen the fifth time Mayor so and so were the Sheriffs And again 1 Ed. the second Peter Drove chosen Sheriff as before and Iohn Blun was chosen Mayor the sixth time the first of Ed. the second Blun was chosen the seventh time by the Lord Mayor Court of Aldermen and the Community which was summoned thereunto which was twelve men out of every Ward and in the 2. of Ed. the second Buâ—ler and Dovâ—r were chosen Sheriffs as before the time would fail if we should speak of Palmer and Edmonds c. and many others who were chosen by the Lord Mayor the Aldermen the Common-Counsel and the good men of Wards At the 22. year of Henry the sixth were present at election of the Mayor all the Common-Counsel-men and several discreet Citizens chosen out of every Ward its true they are called the Commons and Community and if that you look in the 21. of Ed. the first the Community there is expounded to be the honest discreet and wise men of the Ward so that they were Representatives chosen out of the Wards but if it be objected that besides these twelve honest discreet men of every Ward there were certain other men that did belong unto this election and surely it may imply that the Livery-men did belâ—ng unto the election surely no but by those dark expressions must be meant the honest discreet men chosen out of the Wards with the Lord Mayor and Aldermen to whom it belongs ex officio The main argument was this that the chief Officers of the City were to be chosen by the Lord Mayor and the Aldermen and Sheriffs and Common-Counsel-men with twelve men chosen out of every Ward that were discreet men that was granted but that they were such discreet men as to exclude other was denied If that these are the men they must be distinguished from other men by another term than discreet men Now you argue thus that Livery-men are discreet and therefore the men that must choose my Lord Mayor are the Livery-men as if you should argue That the Lord Mayor wears a golden Chain therefore the Sheriffs are Lord Mayors because they wear golden Chains I humbly offer these Considerations 1. My Lord Mayor nor the Aldermen chuse not any officers of the Companies why should they then chuse any chief Officers of the City 2. The jurisdiction of the Mayor and Sheriffs extends to a Local Power and by these Gentlemens pleading Livery-men Free of this City may live at York and if they be at London that day my Lord Mayor is chosen they may choose my Lord Mayor and the Sheriffs of this City and yet live not under their Power 3. The way of election we plead for doth not exempt them from being chosen by the Ward to elect 4. Free-men of this City pay Shot and Lot and are bound to assist the chief Officers of this City but Livery-men living not under these bounds are not under this obligation 5. Again this City is distributed by way of Wards Quest-men Jury-men Constables and Scavengers are all chosen by the Wards and it is most necessary for the well Government of this City that the chief Officers of this City be chosen by Representatives from every Ward 6. If there be any miscarriage in Government The Citizens living in the City must be taxt and pay any fine for misgovernment and therefore it is most fit they should have their vote in election 7. And further if any accident happen by Fire or the miscarriage of one of more of the chief Officers if it so fall out that the Treasure of the Chamber should be exhausted and mis-imployed that the Orphans cannot have their portions I desire to know who must be responsible for it the Livery-men of several Companies or the whole Wards and every particular man thereof And here give me leave to be heard with Charity God knows my Heart I speak out of Love to you all and as prest in Conscience what I have to say I am sure it is the whisperings nay the Report of most and I fear too true That the cry of the Fatherless and the Widdow doth sollicite Heaven for vengeance for expending the poor Orphans Estates and we trust and believe that your Honour and this Honourable Court whose Faces and Lives and Conversations we so well know that we do verily believe that your Hearts and Hands are clean from this pollution but as we do believe so we hope that your Honour and the rest will take some speedy course that the blood of the Fatherless and the Widdow may not stick to these Walls Let our Blood and Estates go before the Blood of poor Orphans that that may not one day be charged upon this City I desire to be pardoned this digression I should answer some objections that are commonly made against this way of election that we desire The first is this That this will destroy the Companies and so at last it will strike higher to wit the overthrow of my Lord Mayor and the Court of Aldermen and
so consequently all Government for my part I know not that Absolon among us but did I know such a man my Hand should be upon him as soon as any mans I say let a Bear robbed of her whelps mâ—et me rather then a People without Government the Magistrates power is my power and is in him for my use and for my part I am for the Majestry of Magistrates for when we read of Kings we read of Thrones and Scepters and soft Raiment c. It is true though your chains are gold yet they are chains as well as gold and though your Gowns be Honorable yet they are burdensome as well as Honorable But as for the business in hand we speak not against the Form and the Beauty of it but let every Star shine in his own Orbe Let there be no confusion let Wards have their dues and let Companies have theirs I want opportunity to set forth their Glory and their Excellency in their proper places As for the objections of Popularity and Confusion we shall answer them if they be insisted on Mr. Wildman My Lord I humbly propose no other end but to inforce the Petition of the Free-men of this City the Question that was stated is this Whether the Companies of the several Misteries in the City or the Free-men in the several Wards have right to choose Lord Mayor and Sheriffs Now it rests upon us to prove that the Free-men in their Representatives chosen out of the Wards are to choose and we do assert this for a truth That those and those only that shall be actually chosen to represent the Free-men of the City of London not excluding the Lord Mayor Court of Aldermen and Common-Counsel have a right to this Election And my Lord I might insist upon it that this very City and Common-Counsel in all things do acknowledge this to be the Peoples Right For upon your Election of your Representatives in Parliament the Commissions you give them run in the name of the whole Commonalty of the City And it is generally admitted to be the Peoples right in all Acts of Common-Counsel and other publick Acts which run in the name of the Commonalty of the City they are therefore supposed to do those Acts by themselves or deputyes But my Lord I shall wave this lest I should reduce all Government to an uncertainty by dissolving it into the first principles and so seem at least to run upon that Rock of coufusion which those Gentlemen would have us split our selves upon But it is no way our intention and therefore I shall assert this proposition That the Representers of the several Wards ought to chuse the Lord Mayor and the Sheriffs upon a Right declared by written Law only I crave leave to premise or to inform this Honorable Court that those first Records that should make out the Peopels right are imbezeled burnt or lost there being no Record in your Treasury but since Edward 1. But my Lord by Records that are extent the Liberties of the Citizens of London appear to be more ancient then any Charter of the City that 's visible to us in the 9. Chap. of Magna Charta it is said The City of London shall have all her Liberties and Customs she was used to have so that there was Liberties and Customes that the City had before the great Charter of England Now it is agreed by the Gentlemen of the long Robe that the great Charter of England is chiefly declarative of the Common-Law And Sir Edward Cook in his second part of his Institutes upon that ground declares it for Law that any Law made by the Parliament it self and contrary to the great Charter of England and contrary to right reason is void of it self I suppose he adds these words And contrary to right reason to shew that he means onely that a Statute made against that part of the great Charter which is declarative of the Common-Law is null of it self for the Common-Law being right reason it cannot be supposed without a contradiction that Parliaments should of Right have power to make a Law against Right Now the Liberties of London being confirmed by the great Charter I cannot conceive that any other Liberties are there intended to be confirmed then those common Liberties that were grounded upon right reason and then those words of the ninth Chapter of the great Charter do but declare the Common-Law and by consequence are unalterable and any Law made against those Liberties of London either by a Power within the City or without the City is null of it self now to make it appear that it was one of the City Liberties before the great Charter that the Free-men should chuse their chief Officers we can go no farther then your Charter granted by King Iohn in the year 1215. 435 years since that is the first Charter the City of London hath extant And by that Charter t is said to be granted to the Barons of London yearly to elect a Mayor and Sheriffs and the word Barons doth import no more then the Free-men of London for then the Free-men of every Port were called Barons though since it hath been made a name and title of honour peculiar to those called Noblemen Now I conceive it will be agreed by the Gentlemen of the other side that this very Charter was not the original of those Liberties of London that are mentioned there to be granted but that it was only declarative shewing what the Liberties of the City were and here I must infer that this Charter declaring that the Barons of the City wherein every particular Citizen is included should chuse the Mayor and the Sheriffs this I say doth but declare what was the Common rihgt of all the Citizens of London before this Charter I may then from hence conclude that before the great Charter it was the Right of the Citizens of London none Excluded That they should Chuse the Mayor and their Sheriffs and such a Right as I crave leave to affirm to be Unalterable that is justly so for being a Right by the Law of Nature 't is superior to all other Laws and other Laws are onely so far Right as they agree with that however I may more bolâ—ly say That this Liberty of the Citizens of London being confirmed by the Great Charter cannot be null by any Act of Common-Council and I humbly conceive that it was not in the Common-Council's Power to make that Act in the Fifteenth of Edward the Fourth to debar all but the Liveries of the several Companies to come to the Election of the Mayor and Sheriffs for they could not take away the Right of the Citizens declared by their Charter and in the First Charter and all others 't is said to be Giranted to the Citizens indefinitely to Chuse of themselves a Mayor and the Charter ought to be construed in favour of Right and so 't is to be taken that it is Granted to all the Citizens and
this their Right is apparent by the use of it which is mentioned in all the most Ancient Records of the City there 's one or two very clear to this purpose The City growing great and very populous after their first Charter found it inconvenient to meet together the Commonalty being very great and therefore according to this their Right which we Assert the whole City at a Common-Hall did make an Agreement That Eight Ten or Twelve of every Ward should be Chosen by their Wards and in their Names and in their Steads Elect the Mayor and the Sheriffs of the City As in the Sixth Year of King Edward the Second Lib. D. Fol. 3. which if you please I desire may be Read that you may not think I speak without Book The Act was Read And in the Twentieth Year of Edward the Third in the Year 1347. there is an Act of a Common-Hall Recorded wherein 't is said that there gathered together on Simon and Iuâ—es Day the whole Commonalty into Guild-Hall London so that the whole Hall was full with the Commonalty The Act read in these words And it is agreeed that from henceforth there shall come the Mayor the Aldermen and also out of every Ward of the City of London Twelve Eight or Six according as the Ward shall be great or small of the Richest and Wisest of every Ward and such Twelve Eight or Six with the Mayor and Aldermen shall intermeddle and Chuse a Mayor and Sheriffs for the Year following I conceive this is sufficient to prove That it is the Citizens of Londons Right to Chuse the Mayor and Sheriffs of London for accordingly they did meet together the whole Body of the Free-men and finding that inconvenient the Commonalty did agree at a full Hall that such a select number should be chosen by every Ward and sent to the Election of the Mayor and Sheriffs as appears by the Act that hath been read and 't is probable that this was not the first time that such an Agreement was made but that this was made after the Commonalty had upon some Occasion reassumed the Power of Electing to themselves for according to this Agreement it was the Practice of the City of London for near two hundred years before it was put into the hands of the Livery-men of each Company in 19th of Edward the First Lib. C. Fol. 62. the Election of the Mayor and Sheriffs is said to have been by the Mayor Sheriffs and Aldermen and Twelve men of every Ward In the 19th year of Edward the first Blun was Chosen Mayor of the City of London by the Common-Counsel and Aldermen and by the Assent of twelve honest men of every Ward of the whole City My Lord it is apparent that twelve men were Chosen by every Ward that did Elect the Lord Mayor and the Sheriffs And the very same words are in the 31. of Edw. 1. where Martin and Burford were Chosen Sheriffs and in the Thirty Second of Edward the First where Iohn Blun was so Chosen Mayor Lib. C. Fol. 111. and 112. And in the First Year of Edward the Second Fol. 112. Picot and Dury were so Chosen Sheriffs I humbly submit it to your Lordship whether you will see these Records I may quote more as in the Third of Edward the Second Lib. C. Fol. 113. c. It was the continual Practice from Year to Year that the Twelve Men Chosen by every Ward did Elect the Lord Mayor and the Sheriffs there is a whole Jury of Witnesses in the Records to this purpose And my Lord where this Usage may seem to have ceased because in other Records 't is said they were Elected by the Lord Mayor Sheriffs and Aldermen and the whole Commonalty we shall make it appear that this is meant the Selected Men of the Wards though however those Records are clear for us for if the Choice was by the whole Commonalty it was either by themselves or these Deputies Yet we find one Record in the Twenty First of Edward the First Lib. C. Fol. 6. where 't is said First that there was Assembled the whole Commonalty and then 't is Explained in these words That is to say of every Ward the Richest and the Wisest The Record was Read Mr. Wildman I produce this Record for this End to shew that where the Election is said to be by the Commonalty of the City it is to be understood the select number of every Wards Representatives for it is supposed every one is included and therefore 't is said to be by the Commonalty I pray my Lord observe these words in this Record the whole Commonalty that is to say the more able and discreet men of every Ward And to confirm this if there be any need of it we can produce another Record in 113. Fol. Libro C. where Election is said to be made by the Commonalty summoned thereunto yet in Page 112. of the same it is said men of every Ward did Choose whence I Collect that by the expression of the Commonalty summoned hereto is understood the Twelve Men from the Wards so that it appeareth clearly in my humble Opinion That it was the Practice of the City for near two hundred Years to Choose by their Representatives before it came to be the Usage of the City to Choose by the Livery-men of the Companies And my Lord if it were needful to strengthen this we can shew by Records That Parliament men where Chosen by the Lord Mayor Aldermen and Twelve men of every Ward these were the Representers of the Wards that joyned with the Lord Mayor and the Court of Aldermen in such Elections and the Commissions given to the Parliament-men are in the Name of the whole Commonalty of the City which admits they were all there in their Persons or in their Deputies to Choose them and give them their Commissions else the Commonalty is abused in having their Names used in the Commissions Now my Lord I shall take the boldness to conclude from all this evidence of the Common-Councel of London though I much honor their power and would be infinitely loth to detract from it yet my Lord I must crave leave to affirm That it being the liberty of all the Free-men of Lâ—ndon by themselves or deputies to chuse the Lord Mayor and Sherifis and this being confirmed to them by Magna Charia as unalterable and all the people having declared at a full Common Hall that they had put it into the hands of twelve Men which were their deputies or Representatives to elect the chief Officers of of this City this my Lord being the case I say I humbly affirm that it was not in the power of the Common-Councel by that Act 15 Edward 4 to take away the Free-mens right not to say who should be the Peoples deputies to make their elections they being by the People deputies themselves and deputed to another power So that my Lord I now conclude that it was the
hardly dealt withal Now we shall prove that there hath been 180. years possession of Election this way and it hath by the blessing of God brought with it Peace Prosperity and plenty to you and I hope you are not so ungrateful but to acknowledge it but it is told you and much pains is taken to perswade you by these Gentlemen that this must be removed but under favour upon little grounds You see here are but two and these two differ in what they would maintain Now all Truths stand one with another saith one this is lawful saith another this cannot be changed either you must conclude the present is lawful or unlawful if lawful why is it desired to be changed But judge you the consequents of this if you deny this way now establisht to be lawful then the whole City of London for above two hundred years never had one lawful Mayor and all Actions performed by them may be questioned Now in the fourty one of Queen Elizabeth there being a difference in the City about Election of Officers all the Judges of England were caused to meet together about this very thing and it was expresly resolved by them all that such Elections were lawful and London is named in the Resolution and it is said they found it a Question of very great Advice and those Judges were very grave pious and godly men for some of them as Popham and Anderson and Pyriam also a famous man so that Gentlemen fifty years ago this Question was on foot and all the Judges of the Land did then give their Resolutions that it would be matter of very great inconveniency to alter it and they gave it as in right of Law to belong as it had been before and if it be not lawful then this City hath forfeited its Charter and is lyable when they that are above in Power and Authority at any time shall be pleased to be questioned for it I do apprehend that the foundation of your right doth not depend upon any Charter those Charters you have are matter of confirmation and not Charters that do give you your Right the antientest Record that you produce is from King Iohn but the first year of Richard the first is the utmost bounds of memory If that it be not by prescription why then are many customs of the City void For there are many customes and usages for which there is no Charter nor is it possible there should be and therefore it must of necessity follow that Mayors was time out of Mind and the truth is Mayors were in use before the Charter they were indeed called Portwards and Portrifts but the Name was changed in Richard the First 's time and from thence they were called Mayors and the Charter was granted in the Name of the Mayor so that though the Officers Name be changed it is the same Officer still the Power the same but not the Name if they were not by Custome for you must know what is by Custome is not by Charter and what is by Charter is not by Custome Now then what is the Charter the Barons of themselves may choose a Mayor this Charter being of this Antiquity it shall be construed according to usage and that is a rule in Law and that is your consequence for if we shall be forced to find out the meaning of words you shall be to seek for Citizens in those times were called Barons But we shall now come to answer their objections and to make those objections we have to say on the other sides Those Records that they produce say we shall all choose and if that you hold your selves to the letter Then you are tyed to an impossibility that is every Citizen none excluded and then yon will reduce your selves to an absolute impossibility but say they we would have a Representative made out of every Ward and so they with the Mayor and Court of Aldermen should choose the chief Officers of the City but this doth no more stand as an objection against the present choice for if you look to the words of the Record produced it doth not bear it for doth the Charter grant you any such Representative Taking it for granted the Right is founded upon Charter and and not upon custom and I take it to be by Ancient custom before the Charter or else the Charter would not bear it that they should choose a Mayor and not telling them how and when for this general grant was made because it was their custom but an objection is made that in this way which we now choose all do not choose But I answer all do choose though not by their own votes you say when did we give our right to the Livery Men to give vote for us I answer a Man seeth with his eye ye we say the Man seeth a Mans hand moveth but it is the Man that moveth it so though every part doth not do every thing in the City yet the whole doth every thing and the City doth choose though every member thereof be not at the choice so that the question is whether you do believe this was lawfully done by those that do it Now if Lawfully why then they are the Cities Representatives as for example for the Parliament every member thereof cannot give his vote for the passing of all things for many times many of them are in the Country when many Acts are past and yet we say the Parliament doth it as in election of Parliament Men in the Country the Writs run that the People shall choose and yet we all know that none choose but such as are Free-holders although there may be many as good men as Free-holders yet they have no vote and yet this Act is accounted the Act of all the Commons in England though they come in but by some parts and some have no vote in the choice of them we may not depart from this for by this we hold all we have so if this be a lawful choice why then the Law supposes that where there is a continuance of a lawful possession there all lawful meanes is supposed to maintain the possession If that all the City should meet together and set down this Order if that it be once settled that for ever hereafter these and these shall chuse then you make those your Trustees and it supposeth such an ancient custom was And truly Gentlemen the choice as now it is is no otherwise for the Aldermen they are chosen by the Ward and so are the Common Council I will put you a Case which to my Understanding is like this In the 28. year of Edw. the 1st there was a Statute made wherein the King grants to the People that they shall chuse the Sheriffs or conservators of the Peace whenas there was nothing more clear that none but the Freeholders should chuse them Mark the parallel and yet this is an Act of Parliament that hath its beginning at that time and
or about Government could give a right to that Power all the foundations of just Government were overturned and by consequence it were not right or just to take away an usurped Power if the Usurpers be grown old Next the Gentleman is pleased before he comes to his material Arguments to insinuate strange huge dreadful monstruous Consequences that would ensue in case any man shall deny his Assertions he is pleaded to say What strange consequences would ensue if we should say for 190 years all the Lord Mayors or Sheriffs of the City of London have been unlawfully chosen but suppose that which he suggests that the Mayors have been chosen unlawfully so long 't is time then to provide for a lawful choice and the continuance of the unâ—awful will breed more of M. Maynard's monstruous consequences and if it be unlawful 't is not forbearing to say so that will amend the Consequences But now the Gentleman comes to his Position and saith That this Government that is now is lawful The Gentleman might have pleased to have spared that I did not yet assert that the Government that is now is unlawful yet he may take some answers to his Arguments or rather Authorities for the legality of it The 1st Ground he builds upon for the lawfulness of this Government is the Opinion of the Judges which makes a huge Cry But by the way the question is not now concerning the Government but only concerning the choosers or electers of the Governours the Government may be the same still though the manner and way of electing these Governours may be altered from what it is at present Yet to that Opinion of the Judges which makes the great noise in the Court Oh saith he 't is the Opinion of all the learn'd Iudges and then he paraphrases upon the goodness honesty learning and fame of the Judges that were named in the Book produced It may be those Gentlemen of the Long Robe were Black-Swans yet the Argument from Authority is none of the strongest 'T is not a very good consequence that the thing is just because good men thought so Yet under favour the Opinion of the Judges I take to be not the most certain or unalterable amongst men nor the most unbyassed by their own Interest I believe if a man should go to the 12 Judges he shall scarce find 4 or 3 of the 12 of the same opinion in a dubious case yet if there were more that agreed the late opinion of the Judges in the case of Ship-Mony may inform us how free the Judges opinions are from the Byass of private Interest in such 〈…〉 how fit 't is for us to depend upon them but however the opinion of the â—â—ges produced by Mr. Maynard I crave leave to affirm to be against him in this Case at least not for him I desire it may be read The Case of Corporations touching the Election of Governours in the fourth of the Lord Cooks Reports fol. 77 78. In the same Term at Serjeants-Inn in Fleet street it was demanded of the chief Justices Popham and Anderson and Periam chief Baron of the other Justices That where divers Cities Burroughs Towns are incorporate by Charters whether by the name of the Mayor Commonalty or the Mayor Burgesses of the Bailiffs Burgesses c. or the Aldermen Burgesses or the Provost Sheriffs or Burgesses or the like in the said Charters it be prescribed that the Mayor Bailiffs Aldermen Provosts shall be chosen by the Commonalty or Burgesses of the ancient usual Elections of Mayor Baiiffs Provosts by a certain chosen number of the chief of the Commonalty or of the Burgesses commonly called the Common Council or by other name not in general by all the Commonalty or Burgesses or not by so many of them as will come to the Election shall be good in Law forasmuch as by these words of the Charters the Election shall be indefinitely by the Commonalty or all the Burgesses And which Question being of great importance and consequence was râ—ferred by the Lords of the Council to the Justices to know the Law in that case for that divers attempts were now of late in divers Corporations contrary to the ancient usage to make popular Elections it was resolv'd by the Justices upon great deliberation and upon conference had amongst themselves that such ancient usual Elections were good and well warranted by their Charter and by the Law also for in every of their Charters they have power given them to make Laws Ordinances Constitutions for the better Government Order of their Cities or Burroughs by force of which for avoiding popular confusion they by their common assent constitute or ordain That the Mayor Bailisfs or other principal Officers shall be chosen by one certain select number of the principal of the Commonalty or of the Burgesses as is aforesaid prescribe also how such selected numbers shall chuse such Ordinances Constitutions was resolved to be good allowable agreeable with the Law their Charters for avoâ—ding of popular disorder confusion although that no such Constitution or Ordinance can be shâ—wed yet it shall be presumed intended in respect of such special manner of ancient continual Election which special Election is not begun without common consent that at the first laâ—e Ordinance or Constitution was made such reverend respect of Law doth give to ancient continual allowance usage as it had been within time of Memory And the custom of most faithful Antiquity is to be esteemed the things which are done contrary to the custom usage of the Ancients either please or seem right the frequency of the Act premiseth much and according to that Resolution the ancient and continual Usages have been in the Cities of London Norwich and other ancient Cities Corporations And God defend that they shall be now innovated or altered for that many and great Inconveniences will arise upon the same all which the Law hath well prevented as appears by that Resolution First My Lord observe that the Question here resolved is not our Question the Question here resolved was this Whether an Election of a Mayor not made by all the Commonalty in a Corporation or at least as many as would come was good in Law But our present question is only this Whether the Commonalty of this City ought not to have their Representers to chuse the Lord Mayor So that we do grant that an Election not made by all the Commonalty may be good Now my Lord observe the Judges Resolution of the Question they resolve that an Election made by the Mayor and Aldermen and a certain chosen number of the choice of the Commonalty is good in Law We concur with the Judges keeping close to their words A certain chosen number of the Commonalty to those other words of theirs viz. Such ancient usual Elections that is to
Traytors I believe Gentlemen you would be loath to admit of such a Law But to confirm this assertion the Gentleman produced something out of that which he called Articuli super Chartas where he saith the King granted to the People to chuse Sheriffs and yet the People did not chuse them all in general it was the Freeholders chose them Mr. Maynard If he pleaseth could have told when the People in general were restrained from electing Parliament-men and other the Sheriffs also and upon what pretence it was put upon Freeholders onely and how it served the Kings ends to procure that Statute of Restriction if I forget not the time it was in the 8 of Henry 6. Chap. 7. But however Mr. Maynard should have proved this to be just before he can prove the other to be just by this Now the Gentleman is pleased to come to examine the presidents we produced and saith he will turn our own swords into our own bowels and endeavors to do it thus First saith he you prove that the Wards did send several Persons to these Elections 400 years since but you prove not that the Wards chose these Persons you read indeed Records that said these Persons were summoned to the Election but who summoned them certainly the Mayor summoned them and he summoned whom he would I verily believe this would be a very bitter Pill for the Citizens to digest to â—ay the Lord Mayor should summon when he pleased and whom he pleased out of every Ward to come to the Election the Government would be turned topsie turvy if that were admitted then he that should be once Lord Mayor might be for ever Lord Mayor if he could make but a friend or two in every Ward and if this be imagined to have been the custom of the City I wonder who summoned those that chose the first Mayor But the Gentleman is pleased to make his Argument thus saith he it is not named in the Record you produce that these men were Elected by the Wards though summoned from the Wards therefore saith he they were not elected It is a new kind of logick that must make this argument good 'T is not recited in the Record that they were chosen therefore they were not chosen I might as well say that in your summon to a Common Counâ—el your being chosen by the Wards is not recited therefore you Gentlemen of this Court were not chosen I confess I am not very well verst in the Acts that are in this Court but I think there is no act of the Court recorded wherein it is said There were present the Common Councel that were chosen by such Wards shall I therefore conclude that they were not chosen by the Wards I must first learn a new Logick before I shall â—are so to conclude The second thing he objected against the presidents was this Those Twelve men of the Wards that are said to elect the Mayor saith he must needs be understood to be Common Councel men Truly besides the Answer of Mr. Price that it was not probable because the number of Common Councel would then have been far greater than now it is when the City was far less to let that pass I only answer thus that if they please to look in 22 of Henry the sixth it is in Lib. K. fol. 214. It is said in the writ that came down from the King to prevent disturbances at that Election of the Mayor that none should be there but they that have an interest to be there those that were in Common-Councel And the more discreet and able men of the Wards so that besides the Common-Councel there were others that were wise and able discreet men in the Wards that were to come to the Elections which probably were those that were chosen by the Wards If your Honour please the Record may be read The former answer serves to Mr. Mayards Observation of the Election of the Parliament Men for the City wherein it is said only six of a ward were called to be there but not chosen I propose it to him whether it is probable that the Lord Mayor had power to pick six men out of a Ward to chuse the Parliament men for the City or whether this be a good Argument because they are said to be summoned by the Lord Mayor and not said to be elected therefore they were not elected I hope the Gentlemen of the Long-Robe have better arguments The last thing that Mr. Manard avers is the inconveniencies in point of Law that would ensue upon that which we pray for which he calls an Innovation But I humbly crave leave to aver unless I could see his confutation that it is an antient Right of the Citizens of this City Those inconveniencies in point of Law he saith are these the hazard of forfeiting of Charters I conceive that to be answered before That if a City should depart from a just way if their Charter were but the confirmation of their right before there is no forfeiting of that Charter for the Charter gives them not that Right The next Argument he draws from every mans living in a Court-â—eet and that at twelve years old he ought to meet there and he saith from thence if there should be Representers of the Wards chosen to make the choyce it might be that those that are no Citizens might meer to chuse a Mayor and Citizens that live without should not chuse I think under his favour the common practice will answer to that when the Wards meet for the choyce of Aldermen or Common-Councel Men none but Citizens have their Votes in it there is no danger that those that are Aliens should either be chosen or choosers His next Argument against this Petition is this saith Mr. Maynard It will tend to Popularity if this should be admitted that the Wards should choose and I leave it saith he to the Court to judg what the Consequent of that would be all mens Educations saith he are not such as make them fit for Government or fit to choose Governors Truly if it please the honourable Court but to consider who they are that are now the Electors this Arrow of the Gentlemans returns upon himself I could say more of it if I should not be thought to reflect because I have a reverend respect to all kind of Trades but if I should speak of all the several Companies the Bricklayers Bowyers Fletchers Turners Coopers Tallow-Chandlers c. If I should speak of the Education of most of the Livery-Men of forty Companies of the City and compute their number and tell you upon what terms most are admitted to be of the Liveries that is for a small sum of Money I conceive the Court would quickly judge which way of Election tends most to Popularity as he calls it and who proposeth most men that are unfit for Government to choose the Lord Mayor and Sheriffs Will any man suppose that the Educations of all the Handicraft men
Ancient undoubted right of the Citizens of London by themselves or their deputies to make their election of their Mayor and Sheriffs and other chief Officers of the City and I conceive the Petition of the Freemen of the City of London which I now indeavor to inforce amounts to no more then a modest humble claim of their Common right that elections might be future be made by the deputies of every Ward which was the ancient custome of the City before the great Charter and all their Charters that of King Iohn and since say that the election shall be according to the ancient custom of the City Mr. Wildman And if the King at any time sent Writs or made-Proclamation for the quieting the elections when there was disturbances and prohibited the access of People Yet the more honest and discreet men of the several Wards are mentioned as bound to come to the election and 't is commauded that they chuse prout moris est according to their custom and I conceive it hath been proved that it was their custom to chuse by the Representatives of every Ward I shall say nothing for the conveniency of this way of choice that I plead for because we claim it as our right and we expect that the Arguments against us will be chiefly from pretended inconveniences s and when those Arguments are produced we shall endeavor to answer them Mr. Mainard I suppose to satisfie your Consciences what is the Right in that which is indeavored by these Gentlemen to be defended which they have taken very great pains about in collecting what hath been said to you I shall endeavour Gentlemen in the first place to remove that which seemeth to lie in my way and so come to that which I have to say in Answer to what hath been spoken by you The Gentleman that first spake taking Occasion to make an Apology for his own inability to perform the Work in his hands he was pleased to say that which I conceive you do not believe he would make as if he wanted parts when certainly he shewed very great Skill in the very entrance of the business and when the Fact was but a little stated he would have laid hold of you all and so of making you Judges he would have made you Parties Aâ—d indeed it is well that you are both Judges and Parties they said and doubtless they are ingenious that they desire you to proceed according as you should be satisfied in conscience the which for my part I doubt not but that you will there was much said how much it did behove you in point of danger but what that danger is I understand not but he tels you he urged it out of zeal also he tels you much of some secret Absolom but for my part I understand not what nor who he means hereby I will take no advantage of any mans affection nor inclinations at all but the man which that Gentlemen spake to the business in hand was that he cited many precedents and records for the practice of what he now desireth my be effected But truly I do extreamly much misunderstand those presidents and Records that he produceth If that they are not as full against them as any thing can be said I shall first offer the weight of their reasons which they urge without president which deals most candidly you shall judge for I shall involve the former in the latter Mr. Price in Mr. Wildman and first That that was urged by Mr. Wildman by way of reason was this that it is a principle of Common right that just subjection cannot be but by assent and there is no way whereby this assent may be but this he speaks of I do deny his Major I shall deny his first proposition there is and may be just subjection without assent and certainly the experience of all generations in the World evidences this truth that there may be just subjection without assent and there be but few Governments but are established without assent it is true where the assent is the easier is the subjection born But what doth he mean by assent a vertual or personal assent if he means personal assent why then when should there be any such assent but to say no man nor People shall be Governed but by Assent we deny for is not a Lawful Conquest a Lawful Title in some Cases the matter is not to make the Business impossible without assent But to that which they deliver I can no way assent He tels you that the several Wards must have Representatives to elect the chief Officers of this City and he tels you the first Records were lost and imbezeled But it is not right placed But Gentlemen what doth he conclude he tells you there were Records and he tells you without all question if that they were extant they would speak for them although he nor none else know the Contents of them But saith he The Liberties of London are Ancienter then the Great Charter and the Liberties of London being Confirmed by that Law therefore any Law made against that is void and null and therefore the Common-Counsel cannot change them Mr. Wildman I said that wherein the great Charter was declarative of the Common-Law i. e. right Reason it was unalterable and any Liberty of London of that nature such as is that we now Plead for ought also to be unalterable Mr. Mainard You said this that our City Liberties are Ancienter thâ—n Magna Charta and that they are confirmed by Magna Charta and therefore cannot be altered by any Law much less by the Common-Counsel I shall appeal to the whole Auditory for the Argument then what ever Magna Charta hath confirmed cannot be by any Law repealed and when this comes to generals this may be of very sad consequence I see Laws are edged tools those that understand them make good use of them and those that do not understand them will finde that they are sharpe and will cut Now he comes to the presidents which I did tell you before and hope to make it clear that the presidents cited do overthrow that which they bring them for I shall offer unto you that which according to the best of my Judgment is matter of reason and proof of that which hath been affirmed by them I shall not beg any favour from you in regard I spâ—ak for that which is dear to you all which is the Peace Prosperity and well Government of this famous City we shall first lay before you the fact and from thence proceed to the Question From the fifteenth of Eâ—ward the fourth there hath been a succession of Election this way and that cannot be denied by any which is nigh two hundred years If any man lay claim to any thing he either doth claim of right or prescription Now if a man should come and put you to prove your right when you have had possession of an Estate 150 years past you would think your self
yet that is accounted the choice of the People I shall now come to examine that which I told you of the Presidents which they produced which I was bold to tell you that every one of them made against them That which is desired is That every Ward should chuse them Representatives and that those Representatives together with my Lord Mayor and Court of Aldermen should chuse the chief Officers of the City And in proof to this I shall appeal to your Memories and to the words of the Presidents whether one President that they produce prove that those 6 8 or 12 men that were summoned to chuse were chosen by the Ward You shall see what a pass you will come to if you go according to their meaning of those Presidents Says the first President They were summoned from each Ward They did not summon themselves Pray then who summoned them Why it was the Mayor that summoned them The Mayor summoned whom he would somtimes 6 somtimes 8 somtimes 12 at his pleasure and he summoned somtimes the Honest men somtimes the Rich men and somtimes the Wise men and they came and made Election of the Mayor There is not the least tittle in all the Records that they produce that they were chosen by the Ward It is one thing to say 12 Men that were summoned from such a Ward came and another thing to say 12 Men that were elected by the Ward came and chose and yet so it is said that at that Convention there should be 6 8 or 12 of the Honestest Wisest and Richest men of the Ward chose If that there should be such a Summons 〈◊〉 out That all the Richest and all the Wisest of such and such a Ward should come what a kind of Summons is this And how shall you judge of these persons c. But it appears the Mayor sent out his Process and summoned them and so a Law is made that none should come but those who are thus summoned as it appears in the Election of Blunn Mayor and all along no mention made of electing the persons but summoning them to appear Otherwise this must be understood to be the Common Council of the City of London for they have had several terms and a man may very well say when the right is in the Commons to do this or that that when it is done by their Trustee it is done by the Commons Now the Common Council are often so called the Commons of this City Now how will you understand that these 6 8 or 12 men were only chosen for this end To chuse the chief Officers There is nothing less in the Record only Master Wildman fancies that the Ward met upon this occasion and elected them and then the Mayor should summon them So that I say there could not be stronger Presidents than what they have produced that make against themselves I shall now conclude what inconveniences would follow in point of Law in case they had their desire Secondly You put your selves upon this hazard that if you part from that which is warranted by Charter and warranted by the possession of 200 years and warranted by the Resolution of those 12 Judges I say Then you will forfeit your Charter which you have so long enjoyed Thirdly It will be inconvenient to you in regard of your Liberty in the Ancient Laws of England No man dwelt in any Ward but was sworn to appear upon all summons to Courts Your Wards have Courts of Inquest and over them you have the Sheriffs Court and this Court which is above that and no man can live out of those Jurisdictions Your Wards in the City are like your Hundred-Courts in the Country And heretofore in all Wards every one was to be summoned assoon as one was 12 years old they were to be summoned to give an account of their Life In a Ward you know there are many that are not Free-men and there are many Free-men that have their Habitations abroad Now if you admit of all to come to choice why then Foreigners that live in the Ward shall have more freedom than Free-men that live out of the Ward and it may so fall out that in some Wards there may be more Strangers than Free-men So that in this way of choice by the Ward oftentimes those that are Citizens may be excluded and those that are Foreigners may be included But you may say we will exclude those that are not Free-men from choice But was there ever any such thing done in this World The next thing that will follow it will be this Popularity Gentlemen you must remember that I told you that the Ward consisteth of every Inhabitant thereof and when you are in such a populous place as this City is and when that they shall all meet together what Breaches of Peace and Insurrections may come I speak not of that which is without president and such Meetings cannot be in any wise mans apprehension but this will follow But truly I do not look upon this as the greatest danger but there is this in it also The foundation upon which this is grounded which the Doctrinal part of the Law in this case is undermined and the Example of such a thing as this For after this Example truly all the Government or Corporations of this Kingdom will receive such shakings as I blush to mention when they shall consider the Ancient Government of this City so backt with Lawful Authority put into a new way There is not a more dangerous thing in my Understanding Heretofore when the Prerâ—â—â—tive did lie upon you you did shew your selves constant to your own Interest Truly this is a meer design to betray you and it will shake you all to pieces if you look not to it for it is an Earth-quake under you and will blow you up As for that Principle Mr W. asserted concerning just Subjection because he left it lest he should reduce things to an uncertainty I shall say nothing Mr. Hayles My Lord and Gentlemen First It is agreed to by them that the power of the choice of my Lord Mayor is not meerly by Charter but by Prescription too That the Charter is a Confirmation and not the Original For we do say that there was the same Office of Mayor many Years before K. Iohn So that your Officers of the City have been time out of mind and not barely by the Charter And if it were not so that would overthrow all your Courts and Franchises Secondly This is agreed to on both sides that without all question the Common Council shall have a Vote in Election of the Mayor in this we agree But the Dispute is whether or no the Livery and Assistants of the Companies shall come in with their Voice or whether there shall be a new device that the Citizens shall meet and chuse 12 Men of each Ward as they do in the choice of the Common Council and so they shall elect the Mayor Thirdly
We agree in this that is that the way of Election hath been by the Mayor Aldermen Common Council and Livery Men and hath been used for about 180 years And they affirm that this was grounded upon an Act of Common Councel These three things are agreed unto on both sides But now the great heat is against the Livery Men and the Reasons they give against them are these Three First They argue from point of Inconveniency That is because the Mayor and Aldermen do not chuse the Masters and Wardens of the Companies therefore they should not chuse the Mayor and Officers of the City The Second Reason they give is in point of right I shall say no more of that than what hath been said already You have had a choice of Mayor and Sheriffs for near 200 years by the Aldermen Common Council and Livery to argue Election out of convenience that you have been under 200 years To alter it upon M. Prise's Opinion I think you will not you having found it every way so convenient and profitable to you But if so be there be any inconveniency in this a popular choice will be very much more inconvenient I pray consider but this one thing If so be the People should come hereafter and dispute the validity of this choice you plead for and say What do you tell us of Representatives We will all choose our selves What imaginary grounds can there be to say These fears are but imaginary How will it be when it will come to be thus They will say We will go and chuse a Mayor our selves there is nothing of Right in this but meerly Imaginations if you allow of 10 or 12 they may say why not 50 or 100 or 200 But for point of Right you have heard what hath been said of these 3 Heads But saith M. Wildman the foundation of all power is in the People first If that shall be a ground to let in all the generality of Citizens into an actual choice of Officers will there not be the same reason for Apprentices and Foreigners to plead for Votes in your Election A Foreigner is under the power of the Mayor and Apprentices live under the command of the Mayor The next Reason is they would endeavour to prove that this course of Election they plead for was heretofore usual I shall say but two words to that First They insist upon the Charter and that of King Iohn the words are They shall Elect a Mayor And they produce some Presidents of 31 Edw. 1. and 1 Edw. 2. I shall repeat one word or two of that my Brother Maynard omitted First You will remember we proved a constant usage of near 200 Years in this way of Election and their pretence is but for a few certain Years that the choice was in that way which they desired A second thing shews their pittiful mistake The Common Council are agreed to have a choice why if they examine it they will find the Common Council are men chosen by the Ward They do find here and there mention made that the Mayor was chosen by the Aldermen and about 6 8 or 12 men summoned And here they think that they must needs be Representatives chosen by the Ward whenas in truth these might very well be the Common Council of the Ward I think there is nothing left for me to say to that What I shall offer shall be out of Record and never mention the conveniences nor inconveniences I shall read the Records unto you that they produce and I will take hold of some words of them The words are these There shall come out of every Ward Twelve Eight or Six men according to the greatness of the Ward And according to the Wards of London the Common Council Men were sent some more and some less And this is very obvious that where there is such a description of the number for each Ward there must needs be meant the Common Councils So that of necessity these words extend to the Common Council Men or else the Common Council must be excluded And again from a Record Edw. 3. they argue the Commonalty to be the 12 Men when they are the Liveries So they mistake in their Application We are not to dispute who may alter the custom but they say this is your custom and they say that is We will admit that that which is by a fundamental Law or Charter cannot be altered by an Act of Common Council But if your present choice be not lawful then all Bargains made since Edw. 1. by your Officers are void and you have no power to judge for you are no Common Council M. Wild spoke last for the City Liveries to the same purpose as the other He had no new Argument only an observation from 28 Edw. 1. M. Prise I humbly conceive I may answer him to what hath been objected against what I delivered according to Reason You say that I did declare that just Subjection cannot be but by assent Under favour that was not offered by me But I affirm that just Subjection cannot be but by right of assent Secondly They urge that we differ upon our grounds The one saith that it is lawful the other saith not And the Reason is because they that grant it have no power to grant it But for my part I did not assert any such thing As concerning the Resolution of the Judges that you so much speak of in some cases it is considerable and in some cases little weight is to be given to theâ—r Resolutions For we all know in the case of Ship-Mony they gave in their Resolutions that it was according to Law And we also know that this was afterwards condemned by the Parliament to be contrary to Law and Illegal Secondly The Resolutions of those very Judges you so much extol do no way refer to the business We offer to grant a select number may lawfully choose but the Liveries are not so And the Opinion of the Judges only say that a select number may choose Thirdly Whereas it is said the Charter is declarative to that I answer The Practice succeeding doth declare what the custom then was and we have no mention of any Masters or Livery-Men of Companies in Election And for Exposition of the Charter if that we tie you to the Letter of it you say we tie you to an impossibility But we only plead for the Representatives of Wards to chuse not all personally and therein is no impossibility And besides in 21 Ed. 1. it is expounded what was meant by those words We proved the Charter gave it the City and the City gave it the Common Council and the Common Council gave it to the Livery and if they gave it for good if they find it prejudicial ye may take it away again Whereas they say that by the number of 6 8 or 10 is doubtless meant the Common Council How do you know the Common Council-Men did consist of so many in
say such ancient Elections by the chosen number of the Commonalty are good in Law Now we deny that the present Election of the the Ld. Mayor by the Livery-Men is the most ancient usual way of Electing and that the Livery-Men are a chosen number of the Commonalty I mean chosen according to any right of choice that right being in the Commonalty But my Lord 't is very observable in this Opinion of the Judges upon what Ground they judged such Elections valid in Law the ground is this For 't is to be imagined or supposed say they that such ancient and continued Elections did not begin without common assent Hence 't is evident that the Judges imagined that all the Citizens had the right of choice in them and that they had agreed that a chosen number of themselves should choose in their stead So that the Judges in their Opinion took the chosen number of the chief of the Commonalty that did elect the chief Officers to be the Representâ—rs of the whole Commonalty Now if your Lordship please to remember we produced an Act of the Common Hall of London made long before the Liveries made any claim to be the choosers and at an Assembly when the Guild Hall was filled with the Commonalty wherein they did assent that there should be a certain number of every Ward proportionably that should be the Electers of the Mayor and Sheriffs so that the way we propose of several men of every Ward representing the Wards to elect is founded upon a common Assent They produce no one Act of a common Hall that should make it appear that it was ever assented unto by the Commonalty that the Livery-Men of the Mysteries should be the choosers of the Mayor Now my Lord I humbly offer it to this Honourable Court whether this opinion of the Judges about Elections produced by Mr Maynard as the pillar whereon they build the lawfulness of the Liveries Elections do not rather speak them to be unlawful in my humble opinion this that those learned Gentlemen flourished like Goliah's Sword against us â—â—ays themselves After Mr. Maynard had produced the Authority of the Judges as he supposed for his Clâ—ents case he argues from consequences saith he If this present way of Electing by the Liveries were not lawful mark the consequences your Charter saith he is forfeited this I confess is a big bellied word but how will this assertion agree with what M. Maynard M. Hales and M. Wilde all affirmed that the Charters of the City did not originally give the City those Liberties that are mentioned in the Charter but that the Charters were only Dâ—clarative of Cities Rights shewing what their Rights were before the Charters Now if the Charters give not the City their Rights certainly you cannot forfeit your Charters unless the learned Gentlemen shall please to say You shall forfeit the Declaration of your Rights for the Charters are no more by their own confession and if your forfeiture be no more you may enjoy your Liberties still notwithstanding such a forfeiture as they pretend But suppose a man should say what I did not yet say that the present way of Electing the Mayor is unlawful is it any more than this that the Citizens have suffered their Right to be taken from them for many Years others to enjoy it unlawfully and how will this consequence be deduced from thence that the City hath forfeited their Rights I confess I understand not by the Law that a Body politick or Corporation as such is under harder Laws in our Nation than the Members of the Common-Wealth severally now no man in England can forfeit his Rights without a legal conviction of some crime for which the Law censures him to forfeit his Rights I know no reason why the City should have such hard measure that in case the free men have suffered the Companies to usurp their right that therefore all the Cities rights should be forfeited Mr. Maynards next argument for the Liveries Elections was this That 't is founded upon a constant usage time out of mind so that saith he the City now prescribes unto this way of Electing and yet the Gentleman was pleased afterwards to confess that to make a title by prescription there must be a constant usage since Rich. the firsts time and they only produce an Act of a Common Councel for the Liveries Electing about 174 years since and will suppose that that act of Common Councel was in confirmation of what was the custome before whereas they produce no one footstep of a Record before that time to prove that it was the usage to chuse by Livery-men but on the contrary it hath appeared that the Election hath been 400 years since by a select number out of the several Wards which cannot be any way supposed to be meant of Livery-men they not coming as men from several Wards but as men from several Companies The next thing the Gentleman said was this that he hoped we would grant that we did both depart from the Charter it self for saith he if we found the way of Electing upon the Charter the Charter running to the Citizens indefinitely it must be understood of all the Citizens and Barons and saith he you grant it is impossible they should altogether make the Election so we both depart from it Under his Favour I must be bold to deny it We depart not from the Charter for we say that the Charter giving a right of choyce to all the Citizens they may proceed in their Elections either by themselves personally or their Deputies and they finding it inconvenient to meet Personally may depute others to make their Elections and an Election so made is truly said to be made by the Citizens So that in case that way of Electing were admitted which the Pertitioners propose it were directly agreeable to the Charter for then indeed the Citizens should chuse because they chuse every one of them by their Deputies as all the People of England make Laws in Parliament because every mans Deputy is or ought to be there in Parliament Next Mr. Maynard answers an Objection If saith he it be objected that in the way of Election that is by the Livery men all are not represented saith he it is true if you take it in some sence but saith he if you take it in the sence of the Law therein they are represented and it is the City makes these Elections Saith he the Law saith so as saith he in case a mans hand moves it is the man that moves or his eye sees a Colour it is the man that sees I hope the Gentleman will please to confess a vast difference between a Body natural and a Body politique Because he may truly say if a mans hand moves all the man moves therefore will he say that what a few or one member of the City doth is the Cities action If so if one in the City commit Treason all the City are
is made of the Common-Counsel but it hath been proved that in an election mention is made of the Common-Councel and of other honest men of the City before any mention is made of Livery-men and though no mention were made of the Common-Counsel yet to say they were not mentioned therefore they were not called to that Assembly when the Election was made is no good consequence upon the grounds before asserted Mr. Wilds objection that we would endeavour to introduce a novelty falls to the ground for we conceive the way of twelve men out of the Wards to be far more antient than the way that is now practised And as for Mr. Wilds Arguments concerning the danger that would ensue upon the multitude coming to Elections upon the same ground he may say the Wards must not chuse their Aldermen nor Common-Councel Men if the Citizens should be deprived of their right upon that ground that it is popularity or they may be divided and fall to blows upon the same grounds they may take away the liberty of chusing Common-Councel Men and Aldermen and all their common Freedoms and if these fears shall affright men from the claim of their right they may be told next that the Sky may fall and therefore they must not go abroad As for the last objection of Mr. Wilds that in this way of popularity 't is possible a choice may be made of unfit men I shall only offer this to the consideration of the Court Whether it is more probable that a whole Ward meeting together to chuse a small number of men that should represent them in the electing their Superiour Officers should chuse more unfit men for that Election then a company it may be of Coopers Tallow-Chandlers or other manuel occupations should admit to the Livery who admit all that will give so much money to be of the Livery who are the likeliest men to send fittest men for the choyce I humbly refer to the Honourable Court though it is strange to me to hear that the fear of popularity or of giving way so much to the Liberty of the people is so much insisted on now we are come into the way of a common Wealth it is a little dissonant to the present constitution Now I shall humbly submit to the Court what hath been offered in answer to that which the Gentlemen on the other-side have objected and humbly crave leave to be still of opinion that I see nothing of strength objected against our assertion viz. That the liberty of Electing is the Right of the Citizens of London in general and so declared by the first Charter we find upon Record And if it be the liberty of the Citizens in general to chuse every man must chuse either by himself or deputy and they all agree it is impossible they should all chuse Personally why they should not then chuse by their representatives I humbly leave to the judgment of this Honourable Court. Mr. Maynard WE have taken up a great deal of time and patience I will repeat nothing of what hath been said only I think Mr. Wildman fears nothing of a popularity for the matter the measure is before you how long one how long another we differ upon the Records recited we think they are for us they think the contrary it lies in your judgments and the measure of time how much it is I am sure they cited no presidents before Edward the first 's time and none since Edward the third's time somwhat was spoken of Henry the sixth I will not enter into a particular recapitulation but there hath been nothing of that I apprehend we have said but hath been answered only by the by and that which is the strength of that we rely upon hath been let go and some generals taken hold of only I shall give you but this observation that it is like enough the Mayor and Sheriffs the Chamberlain who is the keeper of all the wealth of the City and the great trust of the City reposed in them will much depend upon this string Two Gentlemen have here argued and observe it the one grants what the other will not we all agree and how they will agree when a great many comes together I leave it to you to judge Mr. Hales Onely this Gentlemen some two or three little mistakes there have been I think not that they are wilful First of all Whereas they would offer it to you that the Words of all the Commonalty should be intended of the twelve men of the Wards that is mistaken for Gentlemen it was in a case of a choice of Aldermen which is made by the Wards and is not made by twelve men as the very Record it self speaks and therefore that is misapplied It is in case of a choice of Aldermen which is made by the Wards in their bulks and not in twelve men And then next of all for the continual Usage they mistake in that For that Usage they give an instance in the third of King Edward the first till some later time in Edward the second and in the twentyeth of Edward the third But from the twentyeth of Edward the third not any instance at all of Electing men out of Wards That which they say now they are driven to it now they would indeed exclude the Common-Councel from having any voice of right We say You do well If the Common-Councel have no right then may the Livery-Men have no right neither for their Rights will stand and fall upon the same bottom We say only this For that Record of Henry the sixth's time it 's nothing at all to the purpose for that is this That all those that were in the Common-Councel together with other persons that were called in either from the Wards or City be it which it will there is no man doubts but most of the Liveries they live in the Wards and therefore it is not an Argument that they were not persons that were of the Wards And whereas we have no footsteps of the Livery in Record it is true the stiling of the Record is not of the Liveries your Elections are not said to be by the Liveries at this day but by the Commonalty as it was neer two hundred years ago and yet in truth done by the Common Councel and Liveries so that all is one Mr. Wild. My Lord I shall only desire Mr. Latham may read this Record in the twentyeth of Edward the third it is that whereupon I built my Argument that is Thus it was agreed by all the commonalty of the City that the Lord Mayor for the time being shall be chosen by twelve eight or six out of every Ward according to the greatness or bigness of the Ward That must of necessity be the Common-Councel Mr. Maynard One thing I forgot in that That your Livery-Men come not by number Common-Councel-Men they are Summoned by a certain number ¶ Here the Record was read Mr. Hales This is that we say
and here we leave it We say That that Reason that these Gentlemen do use upon their presidents in Edward the first 's time and Edward the second 's time is to exclude the Common Councel as well as the Common-Hall and we say that upon the same reasons they may exclude the one as well as the other There is no mention made of the Common-Councel to have a voice in any of the Elections in Records and therefore they would exclude them We say They do the Record and themselves wrong for though it's Truth there is mention made of the Mayor Aldermen and some others it is not exclusive for some others there might be and yet notwithstanding it is agreed that the Common-Councel may make an election and vote and are not excluded and therefore the Livery-Men may do the same And when as it hath gone on so long and not been contradicted we hope you will continue on that continued course Mr. Wildman My Lord We still insist upon it that those presidents produced being for twelve men out of every Ward cannot probably be conceived to be the Common-Councel for how can we conceive that the Common-Councel at that time when the City was not a fourth part of what it is should consist of as many or more then it doth now But by the Record now read it appears that it was agreed that so many men of every Ward should come to the Election and then further agreed that every Alderman of every Ward should cause such a number a smaller number than the other to be chosen to be of the Common-Councel and 't is not said that they should be the Electors The Record speaks of two things agreed unto First that one number of men should be Elected for the Wards Secondly that another number of men should be chosen by the Wards to consult as the Record saith de arduis negotiis to consult about the hard matters that concerned the City But suppose I should grant the learned Gentlemen of the other side that which they so much contend for viz. That the twelve men of the Wards mentioned in the Records to be the Electors of the Mayor were the Common-Councel and that as Mr. Wild would have it the twelve eight or six of every Ward that the Common-Hall agreed in the 20 of Edward 3d. should be the chusers of the Mayor that those were the Common-Councel suppose this What advantage to their cause will the Gentlemen gain from thence The conclusion from thence would be That the Common-Councel were the only Electors of the Mayor and what becomes of the Compaâ—â—es Liveries for whose power in electing they plead And if it were the Common-Councel that were the electors it doth establish our foundation which is this That all those who are chosen by the Wards and do represent them ought to chuse the chief Officers of the City And if the Wards would trust the Common-Councel onely to be the chusers now and declare it in the choice of them we should not oppose it M. Maynard Gentlemen I forget one word that M. Wildman was pleased to deliver for Law that you may believe if you think good That there is no forfeiture of Charters Now what the Parliament may do under favour is no question but no doubt but there is forfeiture of Charters And he saith Twelve Iudges there are and but few of them agree You must be sure That it is the Judges part to judge your actions at last FINIS * Lib. C. Fo. 41. Edw. 1. * 2 Ed. 1. fol. 41.