will'd them having Knowledg of his Privilege no farther to inquiet him but to proceed to a new Choice Whereupon it was ordered decreed and determined by the Mayor Aldermen and Commons that the Persons there named should repair to the King in the Name of the Mayor Aldermen and Citizens in their most humble manner to beseech him that the Liberties Customs and Franchises of the City by his most noble Progenitors granted to the same and by his Highness ratified and confirmed may stand and be in their Strength and Virtue concerning the said Ralph Rowlet that he may take upon him the said room of Sheriffwick according to the Effect of the same The Persons so deputed having attended the King returned with a second Letter directed to our trusty and right well beloved the Mayor of our City of London and our trusty and well beloved the Aldermen Citizens and Commons of the same Wherein as he says Tendering the entire Conservation and Maintenance of the Liberties and Privileges of the City and seeing that his learned Councel were absent for which Cause he was in suspence and doubt whether his Letters Patent to Rowlet were of such Force that by Virtue of the same he ought to be discharged he desires them to proceed to the Election of some other Person so to discharge the said Ralph Rowlet Not in Contemplation of the said Letters Patent but of those Presents being only of request Whereupon it was agreed by the said Mayor and Aldermen that a Common-Council should be warned against the Vigil of St. Michael the Arch-Angel concerning the same And to their Advyses in the Premises The Common-Council meeting it was then and there agreed according to the Tenor and Effect of the said Letter It must be own'd That in the Entries of the Common-Council there are these words It is agreed That the said Ralph Rowlet shall be discharged of the said Office for this time only And that thereupon the Commons proceed to a new Election Where they do not pretend actually to discharge him but agree that he shall be discharged Which shews that the Discharge was to be in the Place where another was to be chosen And they only advised this or recommended it to the Common-Hall That this was only by way of Advice appears farther not only by the declared End for which they were summon'd but by what follows the former part of the Journal which after mentioning what was done in Common-Council has these words And then immediately the said Letter was openly read in the Guild-Hall aforesaid to all the Commons in their Liveries then and there assembled And in like manner were agreed in manner and form as the said Common-Council had agreed and granted And thereupon the said Mayor Aldermen and Commons by one Assent and Consent proceeded to the Election of a new Sheriff in the stead and place of the said Mr. Rowlet Here 't is observable 1. That it was held and declared whether by the Common-Hall or ordinary Common-Council it matters not That the King's Prerogative to require the Service of his Subjects could not defeat the Right of the City to employ its Citizens Tho' the King had exercised his Prerogative before the City had applied that Right to the particular Person 2. That the King did not think it in the Power of the Mayor and Aldermen or any other Body of Men without the Commons to discharge the Person chosen 3. That he suppos'd the Choice of another Person to amount to the Discharge of the first 4. That tho' the Common-Council among themselves agree that the Person shall be discharged they did not insist upon this Order or Vote as conclusive to the Common-Hall But caus'd the King's Letter to be read in Common-Hall Where all agreed in manner and form as the Common-Council had done before That is they agreed to discharge the Party So that the Agreement of the Common-Council was but matter of Advice or a probationary Order which wanted the Placet or Fiat of the Commons The next Case which I find to this Point is that of Richmond 33 H. VIII In which as I am informed the Asserters of the Authority of the Common-Council much triumph And yet it will prove to have been the Effect of a strong Prepossession or of not attending to those governing Passages and Expressions which will fully explain what may seem doubtful in this or other Entries of the like kind Richmond having been chosen by the Common-Hall and his Election certified to the Mayor and Aldermen in the utter Chamber of Guild-Hall the Mayor and Aldermen are there said lovingly to have confirmed and allowed the same After this the Lord-Mayor and his Brethren the Aldermen returning into the Hall Richmond came up unto the Lord-Mayor and his Brethren the Aldermen and then and there made right humble and hearty Suit Petition and Request both unto them and unto the whole Commons there present That forasmuch as he had not sufficient Estate It might please them all to be so good Lord and Maisters unto him and to discharge him thereof again Notwithstanding his Allegations and Reasons for his Excuse and Discharge because it seemed unto them that he was a Man very meet and hable for the same his said Petition and Request would not nor was not granted unto him He proffer'd his Oath that he was not worth 1000 Marks But the Mayor Aldermen and Council of the City answer'd That such Oath was not sufficient without Six Vouchers according to the late Act of Common-Council However he swore to his Insufficiency before the Mayor Aldermen and Commons Whereupon forasmuch as his own Othe did not discharge him according to the Laws and Usages of the said City of and from the said Office but that he stood still and remained chargeable to the same and expresly refused and denied there openly to take it upon him and to meddle withal he was sent to Ward for his Disobedience and Obstinacy by the whole Court and Consent of the Commons there assembled After this he was several times brought in Custody before the Mayor and Aldermen and as often remanded till at last he agreed to pay 200 l. to the use of the City for his Discharge and gave Bond for the Money Thereupon he was discharged from his Imprisonment Then the Mayor Aldermen Common-Council and other the Commoners assembled at Guild-Hall for the Discharging of the said Richmond of and from the said Office and for the Election of another Whereupon great part of the Premises and the Circumstances of the same by Mr. Recorder first to the Common-Council and afterwards to the Commons aforesaid then and there being substantially discreetly and prudently published and declared at length the same Mr. Richmond was then and there by the said Mayor Aldermen and Common-Counsail there holden clearly discharged for that time only of and from the said Office for his said Fine Here they will take no notice of what was
of Freemen of the City where it provides that they shall not be impleaded or troubled at the Exchequer or elsewhere by Bill except it be by those things which touch the King and his Heirs And how careful the City has been to keep Foreigners from partaking in the Privileges of Freemen appears from the Act of Common-Hall return'd under the Common Seal into Parliament 12 E. 2. and there confirmed whereby it is provided that if Foreigners be of any Mystery they shall not be admitted into the Liberty of the City without Sureties of six honest Men of the Mystery for their indempnifying the City and if they be of no Mystery they shall not be admitted without the Assent of the Commonalty of the City That the Freemen of the Mysteries had their several Gilds or Halls where the Society or Fraternity met not to mention more Authorities appears by a Charter of E. 3. reciting one of E. 1. which recites H. 2 d's granting to the Weavers of London their Gild to hold in London with all Liberties and Customs which they had in the time of Henry his Grandfather which was H. 1. and that no Man unless by them should within the City meddle with their Ministry unless he be in their Gild. As therefore the Gild was that Company or the Hall where the Men of that Mystery met the Common Guildhall was where all the Mysteries or Companies met 2. That whosoever are legally entituled to the Common Hall are entituled to all the Authority which the whole Body ever had especially in those things wherein the present Possessors exercise any Authority though they are not the whole Body of Men who used to assemble as long as they are a large Part of that Body may appear 1. In that the Folkmote in the open Air and that in Guildhall were antiently taken to be of the same Nature Accordingly I find a Writ to the Mayor Sheriffs and whole Commonalty of the City requiring them to swear Allegiance in their Hustings or at Paul's Cross 2. Guildhall has time out of mind been the Common-Hall of the Citizens and the Assemblies there have of all times before the first supposed Settlement of the Livery Common-Hall and since been accounted the Assembly of all the Commonalty as some Entries have it of all the City as others And if the whole City can regularly act together it is absurd to imagine that its Acts can be controled by a small part of the Great Body 3. The chief Power of making By-Laws for the Benefit of a City or Burrough is an Incident to the having a Gild or Common-Hall Accordingly in the Reign of H. 2. the Archbishop of York by the Counsel of his Barons granted to the Men of Beverlay in Yorkshire their Hanse that there they may treat of their Statutes for the Honour of God and St. John and the Canons and for the bettering the whole Town with the same kind of Liberty as they of York have in their Hanse H. 2. confirming this grants to the Men of Beverlay free Burgage according to the free Laws and Customs of the Burgesses of York and their Gild of Merchants So that Gild is the same with Hanse and Hanse as Bertius tells us in the old German Tongue signifies a League or Council According to this in a Case which I shall have another Occasion to mention the turning out of the Council of the Citizens was the turning out of the Gild and that was plainly a Disfranchisement 4 Such of the Commons as have from time to time assembled in the Common-Hall have with others been a true Common-Council of the City and acted as such since their Numbers have been restrained as well as before It must be observed that the City had or made a Common-Council before any such Restraint which is plainly intimated in Magna Charta 17 of K. John which mentioning a Common-Council of the Kingdom whether only for Aids belonging to Tenure of the Crown or such a Common-Council as the Cities Boroughs and Villages were at in Person or by Representation which D. Brady at last yields need not here be determined adds In like manner let it be concerning the City of London that is that the Cities Aids shall be taxed in its Common-Council Sutably to this 11 H. 3. a Tallage was assessed in the City by the Will of all the Barons or Citizens And thus the Commonalty of London in the time of Edw. 1. plead that the Citizens and their Heirs and Successors may for the Necessity or Profit of the City among themselves by their common Assent assess and raise Tallages without troubling the King So Ipswich not to name other Burroughs had its Common-Council of the Town c. And 25 H. 3. I find the Choice of Sheriffs in London by the Common Counsel and Assent of the honest Men of the City The Hustings I find to be the Court of these honest Men there they joined with the Mayor and Aldermen in the Grants of City-Land were Judges at Trials and Parties in the making By-Laws Prosecutions for Offences against the Rights of the City were in their Name And Quo Warranto's upon supposed Abuses of their Liberties were brought against them And therefore they not being represented by the Common-Council now using that Name those two great Ornaments of their Profession the late and present Chief Justices of the Common Pleas maintained with the Strength inseperable from their Arguments that no Act of the present Common-Council could be a Forfeiture of the City-Charter Indeed as the Clerks generally favoured the Prerogative often exercised by the Chair with the Advice of private Cabals I find a Mayor 47 H. 3. blamed for making the Aldermen and great Men useless while he did nothing without the Assent of the Commonalty That they acted as a Council and exercised a judicial Power at the Hustings after that time I might shew by numerous Instances but shall here content my self with one 3 E. 1. which was in the Judgment against Hervey above-mentioned who though he was the Darling of the People when he was chosen Chief Magistrate was soon overcome with the Infection of the Chair Some time after his Mayoralty the Mayor and Citizens having met in Guildhall for trying Common Pleas a Dispute arose before all the People between Hervey and the then Mayor and it seems Hervey's Party there was then the strongest for the Mayor found himself obliged to withdraw and make Complaint to the King The next Day the Mayor and Citizens returning to Guildhall to finish the Pleas depending before them a Roll was shewn and read before all the People containing several notorious Articles of Hervey's Presumptions one of which was that in the time of his Mayoralty he acted contrary to the Ordinances made by the Aldermen and discreet Men of the City Another was that he used
the Common Seal which was in his Custody without the Assent of the Aldermen and others which others as I could shew were to be particularly chosen by the Common-Hall for that purpose For these Offences among others against the whole Commonalty of the City and contrary to his Oath he was judicially degraded from his Aldermanship and for ever incapacitated to be of the Council of the Citizens which was plainly a depriving him of his former Right of voting in Gildhall and indeed a Disfranchisement as it turn'd him out of the Gild. And thus I find Privileges in Canterbury granted to all the Burgesses of the Gild of Merchants 5. The present Possession of the Common-Hall is or must be agreed to be a legal Possession and therefore in all things which they have not parted with the Possessors are the legal Successors to them who exercised Power in greater Numbers 6. Even when those Numbers could regularly meet they were concluded by such a Number as came upon general Notice though the Number which met were very small according to the Resolution 33 Eliz. in the Case of the Vestry of St. Saviour's in Southwark 7. Though it may be proved that the great Barons in Parliament were antiently only those who held by Baronies or were created in Parliament yet those who have been made Peers by Patent or Writ succeed to the same Jurisdiction as they are possessed of the same House which the Lords formerly had 8. A Corporation by one Name is entituled to the prescriptional Rights which that City or Town had by another Name And thus it was held that though the Town of Colchester was incorporated by the Name of Bayliffs and Commonalty the Mayor and Commonalty might prescribe to the antient Customs of that Town That the Livery-men have such a Right to the Common-Hall appears by their long Possession for which according to the Resolutions of Judges before-mentioned we are to presume that there had been the express Assent of the Body of Freemen or of such of them as met upon a general Summons If I shew an Act of Common-Hall as antient as the Time of E. 3. for the Mysteries to chuse such as should represent the Commons which I shall have Occasion to shew under the next Head if we find that they had been represented in Common-Hall by the Mysteries before that Time and downwards to this Day and no Act of Common-Council or Common-Hall will appear to have first settled the Right of Elections in the Livery-men of the Mysteries then it will be evident that tho Originally the Mysteries might have been represented by such as they should chuse from time to time It is to be presumed that they agreed to be represented by the Livery-men as a standing Representative 8 E. 2. above 30 Years before the Pretence to any Act of Common-Council or Common-Hall which may be thought to restrain the Freemen from the exercice of the Power originally vested in them I find a Writ to prohibit the Multitude from meeting to chuse a Mayor and Sheriffs alledging that such Elections for Times past us'd to be made by the more discreet Men of the City especially summon'd But then lest this special Summons should seem at the Discretion of the Mayor and Aldermen it forbids all to meet unless specially summon'd or at the Time bound to come And a Proclamation which was publish'd in the City in pursuance of that Writ says That no Man upon pain of Imprisonment shall come to any Election but Mayor Sheriff Alderman and other good People of the chief of the City who by the Mysteries are especially summon'd to come thither or to whom it belongs to be there These Representatives of the Mysteries according to what I have before observed of the legal Possession of the Common-Hall are to be supposed to have been the Livery-men and none others but because the Partiality of the Masters and Wardens might occasion the not summoning some of the Livery-men therefore there is Liberty left for them who had Right to come though not summoned That they and none others had this Right will further appear when I come to prove that no Act can be found from whence their Right exclusive of others is or could be derived or so much as occasioned 3. That a Representation of the Commons by the Mysteries was settled in the Council-Chamber with Authority to make By-laws before any Common-Council of the present Form had any such Authority And however that the very Being of a Council of the present Form was soon taken away by Act of Common-Hall and a Representation by the Mysteries settled in their Places with greater Authority will appear very evidently I must agree that 20 E. 3. it was ordered by the Common-Hall That every Alderman at the holding of his Wardmote yearly should cause 8 6 or 4 of the ablest and wisest of his Ward to be chosen to treat of the Affairs concerning the Commonalty of the City But upon this it is observable 1. That though according to the Lord Coke the Wardmote is of the Nature of an Hundred Court that is in relation to the Districts or Divisions of the City and chiefly as to the Returns of Juries but in Relation to the present Debate it is more fully of the Nature of a Court Leet where all Resiants are obliged to attend and upon the Account of Resiancy are to bear Offices and contribute in several things together with the Citizens who in this Respect are as the Barons or Free-Tenents of a Mannor Wherefore this Order does not restrain Foreigners from being Electors or elected 2. This is not said to be appointed for the Common-Council of the City but in truth the Common-Hall as they were before then continued the only Common-Council Nor taking the Original Entry of that Order to import more than Affairs does the treating of the Affairs concerning the Commonalty in this Place imply more than such Affairs as concern them according to their Divisions by Wards in the Choice of Constables or the like or the assessing of Aids and Tallages for which Purpose I find certain Numbers in every Ward appointed very antiently before there is the least Pretence of the Settlement of any other Common-Council besides the Common-Hall But it is far from appearing that the Men of the Wards appointed to treat of Affairs 20 E. 3. were to treat of such as concerned the Commonalty as divided or acting by Mysteries Or however if the treating of Affairs extends to all the Affairs of the City it can here imply no more than treating of them by way of Advice to that supreme Power in the City which made them what they were and divested it self of no Authority nor indeed could any form of Words have passed away the Authority of that much less of succeeding Common-Halls And it is certain that antiently whatever Power the Common-Hall placed elsewhere they never thought
to their Right so manifest upon many Entries in the Common-Hall Journals According to what is said in Slade's Case The Returns of Sheriffs or Entries of Clerks without challenge of the Party or consideration of the Court being contrary to common Law and Reason are not allowable And therefore whatever may have been entred in the Books of the Common-Council it shall not be suppos'd that the Common-Hall ever admitted any Man to have been discharg'd till they had actually consented to it or did it virtually in chusing another in his stead And the same may be applied to Exemptions of which I will admit there are some Instances to be found in the Books of the Common-Council 4 th That no Man was ever duly discharged or exempted till there was the Consent of the Common-Hall may sufficiently appear by what I have shewn of the By-Laws and Custom in this Matter And yet if both favour'd the Mayor Aldermen and Common-Council I shall make it evident that they would be void in Law To which purpose I shall shew 1. That the exempting a Person from being chosen Sheriff within the City of London and the discharging or amoving one chosen is contrary to the common-Law Right of the Electors 2. That it is contrary to their Charters confirm'd by Parliaments 3. That Magna Charta and other Acts of Parliament declaratory of the Common-Law have so vested the exemption and discharge in the Electors that if their free Consent out of Parliament might divest them of it for certain nothing less can 4. That they have never parted with or quitted it Yet if they had are restor'd to their Right by his present Majesty's gracious Act of Restitution A Canon of Waltham having in the Reign of H. 6. been arrested by a Serjeant of the City in the Close of St. Martin le Grand the Legality of it coming in question because of the pretended Privilege of that Place granted by W. 1. there called Conqueror The Mayor and Citizens justify and say All the Close is and ought to be and of all time beyond memory of Man was of and in the Liberty and Jurisdiction of the said City For the verifying which they say and shew divers Reasons and Evidences First they say That the said City is and beyond memory of Man was the Capital City of the whole Kingdom of England before the rest of the Cities and Towns of the same adorn'd as well with Honours as Liberties and very many free Customs of divers Kinds For it was founded of Old by the famous Progenitors of our Lord the King that now is after the likeness and manner and in memory of Antient Troy the Great and from hence was long called Trinovant Which City in the time of St. Edward King and Confessor and of all time before was of it self and in it self one sole and entire County and one sole and entire Jurisdiction and Liberty held at Farm by the said Citizens and their Predecessors of the said King and his Predecessors And the same Citizens then and from all the time aforesaid by reason of their said Jurisdiction and Liberty have among other such Liberties and free Customs to wit to chuse and make of themselves every Year certain principal Officers in the said â—â—â—y who may faithfully answer the King of the said Farm and immediately under him the People of the said City and others resorting to the same in Peace and Justice according to its antient Laws and Customs to rule And also they could ought and for all the times aforesaid us'd to make other Ministers under them in aid of the sustaining and 〈◊〉 â—â—ising the Premisses So that all the said time no Summons Attachment Distress or Execution ought or us'd to be made in the Place where the said Close now is nor elsewhere in any Part of the City unless by the Officers and Ministers aforesaid except on their failure And they say That the said Lord William the Conqueror before the Foundation of the Church aforesaid and the making the said Charter of which before was mention by the Authority of his Parliament and by two Charters which the said Mayor and City here proffer to wit by one of them demised to the Citizens of London the whole said City and County with all its Appendences Things and Customs to them in any manner appertaining And by the other he granted and by the Authority aforesaid confirm'd to the same Citizens and their Successors that they should have the said and all other their Liberties and Free Customs unhurt which they had in the time of the said holy King Edward his Progenitor and that they should peaceably use and enjoy them c. And speaking of other Kings his Successors Which Kings severally some by their Charters and some by their Charters and the Authority of divers their Parliaments granted and confirmed to the said Citizens and their Successors all the said City and County with all the Rights Jurisdictions Liberties and Free Customs before-mentioned with their Appurtenances whatsoever in Fee Farm Indeed I find no Judgment upon this but it seems the Plea quieted the Dispute That the Plea was rightly founded may appear from two considerable Authorities not to name more 1. The Confessor's Law received and sworn to by Wil. 1. more than once out of which the Passage concerning the Antiquity of the City and its being founded in Imitation and in Memory of Old Troy is transcribed That Law derives the City's Laws Rights Liberties and Royal Customs from its first Foundation and says it has preserved them with an entire Inviolability and consequently affirms those Laws Rights Liberties and Royal Customs to have been at Common Law before any Charter A Charter passed in Parliament 1 E. 3. and at the Request of the City express'd by the Recorder enrolled in the King's-Bench soon after This Charter mentioning the great Charter's Confirmation of all the City's antient Liberties and Customs adds that at the making of that Charter and in the times of Edward King and Confessor and of William the Conqueror and other E. 3 d's Progenitors the said Citizens had divers Liberties and Customs as well by Charters of Kings as without of antient Custom Where the Custom is laid from before the reputed Conquest And thus their Plea above which I find likewise pleaded or prepared 25 H. 8. is in effect warranted by Act of Parliament It appears that the Charter to St. Martins which occasioned this Plea was granted 2 Will. 1. and that in Parliament for it was at the Queenâ—s Coronation which as appears by the old Rituals and Histories could not then be without the Consent of the States Though in the Charter to be seen in the Tower by inspeximus there are Words exempting the Place from all secular Jurisdiction yet the whole County of London being the City's Farm Jurisdiction in every part of it was such an Incident as could not be taken away by
Liberties of the City rested in the whole Body of the Freemen and the whole Body of them have regularly voted in making Laws for the Benefit and Government of the City before they had any Charters and since 2. That whoever are legally possess'd of the publick Common-Hall are intituled to all the Authority which the whole Body ever had especially in those Matters wherein the present Possessors exercise Authority and that the Livery-men have this Right 3. That a Representation of the Commons by the Mysteries was settled in the Council-Chamber with Authority to make By-Laws before any Common-Council of the present Form had such Authority And however that the Authority of that Council was soon taken away by Act of Common-Hall and lodg'd for some time in the Representation by the Mysteries 4. That whoever are intituled to the Council-Chamber that Council is a meer Creature and Committee of the Common-Hall by it entrusted with the dispatch of some things and for preparing others for its ease And whatever Power they have about Circumstances cannot by their Act deprive the Common-Hall of any Right 5. That there is no colour to believe that the Common-Hall as now compos'd received its Being or Authority from such Common-Council as now acts or from any thing but the general Consent of the Freemen express'd in some Act of Common-Hall before the Time of E. 4. or imply'd in the long submission of the rest of the Freemen before that Time or since 1. As I before observ'd the Confessor's Law derives the City's Laws Rights Dignities and Royal Customs from its first Foundation I may add that it says in every County there ought to be a Folkmote on the first of the Kalends of October there to provide who shall be Sheriff and who shall be their Heretochs and there to hear their just Precepts by the Counsel and Assent of the Peers and Judgment of the Folkmote That London had such a Folkmote and the Judgment of that Folkmote extended to the making By-Laws before the Time of the Confessor appears by the following Instance In the Time of King Athelstan above 120 Years before the reputed Conquest Laws had been made at Gratelie Exeter and Winresfeld or rather the Laws made at Gratelie were ratified at the two other Places all the wise Men not being able to meet at the first These Laws are not only received by the Earls or rather Companions and Townsmen or Citizens of London but they make considerable Additions to them for the Good of the City Their Act or Judgment is called the Constitution which the Bishops and Head-boroughs who belong to the Court of London have made or published and which the Earls or rather Companions or Companies and Townsmen have confirm'd by Oath in their Free-Gild There among other things they provide that no Thief above 12 Years old found guilty by Inquisition or upon Trial shall be spared And that he who was rob'd having receiv'd his Capital or Principal the King should have half the Society should share the rest with the Lord of whom he held Book-Land or Bishops-Land It provides for a Common Stock for the Good of all and that all in common shall inquire into the disposal of it It settles Decennaries or Tythings and that there shall be one over 'em who shall summon them for their common Profit and take an Account what they send when they are to contribute or be taxed and what when they receive Money by Order of all the Citizens upon their treating together With other Particulars which I need not mention this being enough to shew their Authority at Common Law before the reputed Conquest Then which was above 750 Years since they had their Guildhall and as the Confessor's Law shews their Court of the Hustings which in that Law is spoken of as an antient Court and all things of Moment seem to have been transacted there till the Numbers of Freemen so encreased that they could not all meet in the Hall but were forc'd to keep their Folkmotes in the open Air at St. Paul's Cross where was a very wide Field before there were Buildings to the Water-side I shall not detain the Reader with the many Presidents of their Assemblies there upon all emergent Occasions but must observe that as late as 19 E. 2. they prescribed to a Right of holding Assemblies there I shall give but one Instance how early the Aldermen with those who called themselves the more discreet of the City would have usurp'd upon the Rights of the Commons in their Guildhall or Folkmote in the open Air. At the end of H. 3 's Reign the Citizens according to Custom had met in Guildhall for the Election of a Mayor the Aldermen and more discreet of the City would have chosen Philip the Taylor the Commonalty contradicted it with great Noise and chose one Hervey and placed him in the Chair Upon this the Aldermen and their Party complain to the King that they were over-run by the Commonalty The People follow'd them with great Noise to the Disturbance of the King who lay upon his Death-bed and cried that they were the Commons and to them belong'd the Election of a Mayor The others said they were the Head and the People but the Members the King's Council put them off till next Day and bid Hervey not to come to Court with more than ten in his Company However he summoned all the Citizens except those who adhered to the Aldermen And next Day a vast Number of Horse and Foot came to Westminster The King's Council finding they could not agree threatned to amove Hervey and put a Custos over them To avoid which they agreed that five should be chosen of each side to settle who should be Mayor However this being in Diminution of the Right of the Commons took no effect H. 3. dying the Archbishop the Earl of Glocester and others of the Nobility came into the City where they caused E. 1. to be proclaimed King and then went into Guildhall where a Common Hall was then assembled and enquiring about the Business of the Mayor the Aldermen told them the Matter was left to Arbitration The Earl of Glocester not valuing this bids them hold a Folkmote the next Day at St. Paul's Cross and he should be the Mayor to whose Election the major Part of the City should assent The great Men going into the Church with the Aldermen perswaded them to yield upon which Hervey was declared Mayor before all the People And thus were they in full Possession of their Right 1 E. 1. That this People who had the Right to carry Elections and other Matters in Guild-hall or their Folkmote in the open Air were the Freemen appears by the Words of some of their Charters declaratory of their antient Right Many of which are granted to the Citizens which the Charter pass'd in Parliament 1 E. 3. explains
Records I find Ward and Gild or Company synonymous 2. Having trac'd this Common-Council to its weak and infant State we may consider it as possessed of a Power of making By-Laws But then we must observe that this will bear no Comparison to the Possession which the Livery-men have of the Common-Hall which has been exclusive of all others Whereas all the Possession which the present Common-Council have had of the Common-Chamber has been only as a Committee entrusted by a greater Court having Continuance and acting with Supream Authority Besides it has been resolved by the Judges That a By-Law to make a Monopoly and a Prescription of such a Nature to induce a sole Trade or Traffick to a Company or Person and to exclude all others is against Law Which is easily applicable to the Common-Council's engrossing the Power of the Common-Hall It would be endless to heap Authorities which might be brought to evince that the Common-Council has no colour of Pretence to make By-Laws of such a Nature as they now insist upon But I cannot pass by the Resolution in the Case of the Chamberlain of London in an Action brought by him for a Penalty raised by a By-Law All such Ordinances Constitutions or By-Laws are allowed by the Law as are made for the true and due Execution of the Laws or Statutes of the Realm or for the good Government and Order of the Body-corporate And all others which are contrary or repugnant to the Laws or Statutes of the Realm are void and of no effect To apply this to the Case in Question for the Common-Council to vacate an Election made in Common-Hall or to exempt any Person from being chosen is not for the good Government and Order of the Body-corporate and besides is directly contrary or repugnant to the Laws and Statutes of the Realm which have fixed the Election of any sufficient Citizen in the Livery Common-Hall and have provided it with Authority to oblige them to hold And therefore any By-Law made in the Common-Council contrary to this Right is void Nay and thus they themselves have judg'd but lately in the like Case In the Mayoralty or Sir John Fleet he acquainted the Common-Council that 40 or 50 foreign Merchants would pay 400 l. a-piece to the use of the Orphans if they might be admitted to the Freedom of the City and have an Act of Common-Council to exempt 'em from bearing chargeable Offices After several long Debates this Project though of apparent Advantage to the City was laid aside the Common-Council declaring it was not in their Power to restrain the Right of the Common-Hall to chuse any sufficient Citizen The Opinion of the Learned Judg Bracton is very applicable to this Matter where speaking of the English Laws he says Which since they were approved by the Consent of those who use them and confirmed by the Oaths of Kings cannot be changed or destroyed without the common Consent and Counsel of those by whose Counsel and Consent they were promulged But they may be changed for the better because that is not destroyed which is made better With such a Limitation we may allow the Common-Council to act for the Ease of the Common Hall in relation to Times Places and other Circumstances for the better Execution of the Laws and Customs of the City But that the Power of making By-Laws exercised by the Common-Council is controlable by the Common-Hall will besides what I have already observed appear by the Charter 15 E. 3. which is the only Charter expresly affirming the City's Power of making By Laws Moreover we have granted that if any Customs in the City of London newly arising where a Remedy was not before ordain'd want Amendment the said Mayor and Aldermen and their Heirs and Successors with the Assent of the Commonalty of the same City remedy convenient consonant to good Faith and Manners for the common Vtility of the Citizens of the said City and other our Liege People flocking to the same may apply and ordain as often and when it shall seem expedient to ' em Provided ☜ nevertheless That such kind of Ordinance be of Utility to us and our People and consonant to good Faith and Reason as abovesaid According to this Charter 1. The Power of making By-Laws relates to Amendments for the common Utility of the Citizens 2. Those Amendments cannot sap or weaken any antient Constitution or Custom 3. They are to be made with the Assent of the Commonalty of the City Neither of which can be pretended in the Matter in question And since as is said in the Chamberlain's Case Corporations cannot make Ordinances or Constitutions without Custom or the King's Charter unless for things which concern the Publick Good as Reparations of Churches or High-ways and the like but the Power now claimed is neither of that Kind nor is there Legal Custom or Consent or Charter for it I need raise no Consequence upon it To conclude this Point if this Common-Hall legally succeeds the Common-Hall which appointed this Committee and the Committee may be set aside at the Pleasure of the Common-Hall if since the raising this Committee and that of late days the Mayor Aldermen and Common-Council have acted together as one Court If farther as in the Case of Rowlet before-mentioned they have acted with a Superior Authority in those very things wherein the Mayor Aldermen and Common-Council have exercised Authority by themselves if most of these Premises hold especially if all do there can be no Question but By-Laws and other Acts of the Common-Council are controlable by the Common-Hall and then it would be very strange to imagine that it should be in the Power of the Common-Council to take away or abridg any Right of its Superior from whence it came and in which it is contain'd I shall not so much question the Judgment or Memory of my Readers as to repeat the Proofs of every one of these Premises But I would desire 'em to remember the Instances of Disfranchisements by Common-Hall before any standing Rule for ' em This Power I must confess the Common-Council have pretended to and as if they not only had it but had it without delegation have fansied they could delegate it to others Accordingly I find an Act of Common-Council impow'ring the Mayor and Aldermen to Disfranchise upon competent Proof by Oath before them of any Citizen's Trespass Act Disobedience or Offence against the City and the Liberties Franchises and free Customs and Privileges of the same Which would be a very dangerous Weapon in the Hands of Aldermen who by Act of Parliament obtain'd by Surprize and contrary to the Sense of the City declared more than once and ratified by former Parliaments have their Stations in effect for their Lives But as it appears by the Resolution in Baggs's Case the above-mention'd Act of Common-Council is void in Law no such Power having been derived to them by the express
THE RIGHTS AND AUTHORITY OF THE COMMONS OF THE City of LONDON In their COMMON-HALL assembled Particularly in the Choice and Discharge OF THEIR SHERIFFS Asserted and Cleared In Answer to the Vindication of the Lord-Mayor Court of Aldermen and Common-Council LONDON Printed in the Year MDCXCV The Rights and Authority of the Commons of the City of London in their Common Hall assembled Particularly in the Choice and Discharge of their Sheriffs asserted and cleared In Answer to the Vindication of the Lord-Mayor Court of Aldermen and Common-Council IF the present Controversy in the City of London be unhappy and ill-tim'd the blame of continuing if not of raising it must fall upon that Side which shall appear to have been in the wrong But since such a Contest is begun in some Respects the present Time may be thought propitious for bringing it to a fair Decision For 1. There is the less Danger in it because it happens chiefly among Men united in the same Cause and Common Interest who have always stood up for the Rights of the City and are likely to manage the Question who are principally entrusted with the Care of its Rights without Animosities and quietly to submit to Authority or Conviction 2. The Learning and Integrity of the present Judges and the Independency of their Places assure the right Side of Justice 3. If it could be imagin'd that they would be influenc'd by the Court It is an happiness that there is no colour to suspect that our present Ministry should interpose to the Prejudice of either's Right And as no Prince who is not truly popular himself can be pleas'd to have Power lodg'd in any great Body of his People the Common Hall could not in any Reign but this since Queen Elizabeth's have expected to bring on their Cause without great Disadvantage And certain it is there never was so great a Body of Men of more steady Loyalty to their Prince than this Common Hall is to his present Majesty King William Yet I cannot but hope that this Controversy may be ended without recourse to Westminster-Hall or the last resort to Parliament For to me it seems there wants nothing to the quieting the Controversy but the setting it in a true Light Which I shall endeavour to do with that faithfulness and impartiality which becomes a constant Servant to Truth and the Old English Liberties But I must premise that tho the Author of the pretended modest Essay runs the Dispute as high as if the Common-Council and Common-Hall were like Rome and Carthage The sole Point now in Question is Whether the Lord-Mayor and Court of Aldermen by themselves or in conjunction with the Common-Council as now composed or acting have rightful Power to discharge any Person whom the Citizens assembled in Common-Hall have chosen Sheriff and to exempt him or others from the Service for a Year or Years to come Bating what relates to the higher Controversy he uses but three Topicks to justify the defeating or vacating the Election of the Common-Hall I. The Resolution of the Judges 40 41 Eliz. II. By-Laws III. Custom Every one of which I shall shew to be fully against him and that both such By-Laws and Custom unless of another Nature than is or can be pretended would be absolutely void I. The Resolution of the Judges is no more in Substance than this That tho the Choice of Officers in Cities and Towns incorporated by Charters be granted to Mayor and Commonalty or the like yet antient and usual Elections by a certain select Number are warrantable by reason of By-Laws made to avoid popular Confusions by virtue of a Power of making By-Laws given by the Charters And that tho such By-Laws cannot be found they shall be presum'd and that this was by common Assent because of such especial manner of antient and continual Election And according to this Resolution the Elections are said to have been in the City of London But since the Common-Council do not pretend to chuse the Sheriffs otherwise than as part of the Common-Hall which has long been in possession of this Right it is evident that the Resolution of the Judges is so far from proving the pretended Authority of the Common-Council to set aside Elections made by the greater Body of the City that it manifests the illegality of the Attempt since according to this Resolution the Common-Hall is to this Purpose at least not only the fullest but the truest Representative or the Body of Citizens who according to Grotius his Distinction are the Common Subject of this Power while their Representatives assembled in Common-Hall are the Proper Subject by which it is exercised And if it were admitted that an Authority to make this Power useless or to weary them out of it were by some By-Law given to the Common-Council as now composed or that the Custom has so long been on their Side that such a By-Law is now to be presumed yet it is very evident that there is nothing to warrant it in that Resolution For besides that as I have observed already it only concerned Elections 1. The Case is only of such Provisions as have been made or are presumable to have been made to avoid popular Confusions which the Common-Council may if they please urge for the setting aside the Usage for Elections in Common-Hall But then they must consider that an Arbitrary Court would be sure to fight them with their own Weapon and with parity of Reason to set them aside And I submit it to their calm Consideration whether the indefeazibleness of Elections without the Consent of those who made them or the defeating them at the Pleasure of others and from time to time requiring a new Choice be the most likely to occasion popular Confusions 2. The Case put is only of Corporations by Charter and deriving their Power of making By-Laws from such Charters in most if not all of which that Power is by the Charters lodg'd in a select â—umber there appointed When as I shall shew the Citizens of London were a Body Politick with Power of making Laws for the Welfare of the City and had the â—hoice of their Portreve since called Mayor and of the Sheriff of their â—ity by Prescription before they had any Charter Which if they had tho the Sheriffwick of Middlesex were annex'd to London by Charter that would fall under the same Government and be subject to an Authority independent on any Charter especially if such Annexation has been before time of memory and confirmed by Acts of Parliament And further yet if it will appear that no Charter to the City of London about making By-Laws appoints any select Number for the exercice of this Power it will if possible be more evident that the Resolution of the Judges has nothing to support the Authority claim'd by the present Common-Council However it must be remember'd that the Resolution says Such especial manner of antient and continual Election
drawing to themselves Jurisdiction or Authority from a greater and higher Court in being and full exercice of Authority and of which they make but a small part yet what is call'd Argumentum ad Hominem is never to be neglected For to prove that those very Arguments in which Men place their Strength make directly against them is to disarm if not convince them To this end it may be of Service to shew what Provisions had formerly been made in this Matter and what has been omitted by the Vindicator out of the Order 7 C. 1. agreeing with those former Provisions In the 24 th of E. 3. a publick Act or Ordinance had been made which taking notice That many sufficient Persons us'd to absent themselves out of the City to avoid the Office of Sheriff by means whereof Persons less sufficient were chosen thro their Default to the great Mischief of them and to the Desolation of the City and so following to the great Jeopardy of the Franchises of the same Disfranchises such Absenters and allows of no Excuce unless they swear with six Vouchers that they did not absent themselves for that Purpose This was manifestly made in Common-Hall For one Evidence of which it is to be observâ—d that it was on the Feast of St. Matthew which had been the usual Day for such Elections till the Day was altered 19 H. 8. And it is observable that tho the Common-Council 19 H. 8. as some would think to colour their Authority to alter the Day and Penalty say it was ordain'd and establish'd by the Mayor Aldermen and Commons in their Common-Council 24 E. 3. yet it is plain it was the Common-Council of all those who assembled at that Day for the Election And the Common-Council 18 H. 8. voting that antient Act to be put in execution in the Case of one Hynde and of all other such Offenders calls it according to the Stile it had at the making An Ordinance made by Walter Turk Mayor Simon Franceys and others with the Assent of the whole City It will further appear that whatever Councils may before the time of that old Act have been summon'd to particular Purposes no Common-Council separate from them that used to assemble in the Common-Hall was ever settled as a standing Council of any considerable Authority before that time This publick Act of the whole City having therefore absolutely required all sufficient Persons chosen Sheriffs to serve upon pain of Disfranchisement and allowing of no Excuce but Insufficiency in Estate all Acts of Common-Council allowing any less or other Court to discharge sufficient Persons chosen or to exempt 'em from being chosen must be void in themselves And according to what the City has declared in its fullest Authority is the assuming a Power not only to injure those Persons who thro the Default of others serve before their turn Which is a stretch beyond the Exercice of a Dispensing Power by the most Arbitrary of our Kings But as it tends to the Desolation of the City and hazards the loss of its Franchises is beyond and contrary to any Power that they can pretend to for the making By-Laws which can be only for the Benefit of the City But in truth it will appear that Common-Councils after this solemn Declaration of the Sense of the City only took care to inforce the Substance of what was then enacted expressing what shall be adjudged Sufficiency and making other Penalties more likely to be effectual than the Bugbear of Disfranchisement can be with a wealthy Citizen who is above his Trade or any need of the Privileges of the City Wherefore the Common-Council 19 H. 8. having alter'd the Day of Election to a more convenient Day than the Feast of St. Matthew which was too near the Day on which Sheriffs were to be presented at the Exchequer making almost the same recital with the Act 24 E. 3. provides That if the Person chosen shall make Default he shall pay 200 l. to the Vse of the Commonalty of the City 100 l. of which shall be given to him who next serves thro his Default But expresly declares That every Person so making Default at all times be eligible unto the said Room and Office of Sheriffwick the said former Act or any ☞ thing therein contained to the contrary or the paiment of the said 200 l. for such Default notwithstanding Thus the By-Laws in this Matter stood till 13 Eliz. when an Order of Common-Council was made expresly affirming or confirming all former Acts of Common-Council and Decrees of Court herein Where Decrees of Court may well be taken to include the Decrees of the Common-Hall pronounc'd on the Hustings and consequently that 24 E. 3. as to the requiring Persons chosen to hold without any Excuce but Insufficiency stands affirm'd 13 Eliz. That of the 13 th of Eliz. continued the same Penalty as 19 H. 8. but made nothing under 2000 l. to be a sufficient Qualification Yet that as well as the Order 19 H. 8. stood in need of some amendment Wherefore 34 Eliz. it was prudently provided 1. That the Day of Election being within too few Days of the Time for presenting the Sheriffs at the Exchequer should be put back to the 24 th of June 2. There being no sufficient Means of securing the City before-hand that they might depend on a Person 's standing a Bond was required for that purpose 3. The Penalty proving over-mild it was rais'd from 200 l. to 400 Marks and if the Person chosen were an Alderman to 600 Marks 4. It was not express'd 19 H. 8. what Estate should qualify a Person for the Service and the Qualification required 13 Eliz. became insufficient wherefore the Order 34 Eliz. requir'd 5000 l. Upon these Accounts it repeal'd all former Orders about this Matter that a more effectual one might take place But then it must be agreed that till the 34 th of Eliz. there was no manner of colour to imagine that paying a Fine could discharge any Man without Consent of the Common-Hall And as it has appeared already that 7 Car. 1. made no Alteration herein or plac'd any Power of discharging or exempting where it had not been before Neither did that 37 Eliz. which that 7 C. 1. transcribes as to this Matter But notwithstanding the requisite Alterations made 34 Eliz. the Expensiveness of Shrievalties and Mens backwardness to hold occasioned the Provision 7 Car. 1. which has given Ground tho no true Colour for the present Dispute That Act repeals all former Acts of Common-Council but does not pretend to repeal any Act of Common-Hall So that all the Obligation which lay upon Citizens to be concluded by their own Consent publickly and solemnly declared 24 E. 3. still remains unshaken Nor does the Act 7 C. 1. repeal former Acts of Common-Council as too severely keeping Men to their Duty but for that the same have not taken so good Effect as might be wished by
reason that the Penalties and Forfeitures therein contained have been over-mil'd and thereby his Majesty's Services have been in danger of Prejudice and the good Citizens of this City by reason of the often refusals of the said Office of Shrievalty have been much troubled and disquieted The better to secure good Sheriffs it appoints the Day of Election to be the 24 th of June And that no Freeman of the said City so to be chosen or elected as aforesaid shall be exempted from the execution of the said Office of Shrievalty by supposition or excuce of defect or insufficiency of Wealth except he will voluntarily take his Corporal Oath before the Mayor and greater part of the Aldermen in open Court of Lord-Mayor and Aldermen for the Time being that he then is not of the Value of Ten thousand Pounds c. Now considering how the former Provisions were this is as much as if it said Whereas according to former By-Laws no sufficient Person is to be discharged or exempted from holding Sheriff and what was Sufficiency then is not so now but the Penalties upon sufficient Persons were over-mil'd therefore every sufficient Person chosen shall serve upoin pain of forfeiting the sum of 600 Marks if an Alderman and 400 l. if a Commoner unless he can swear as is hereby required Wherefore according to the plain scope and meaning of this Order and which indeed is expressed in that very Part which the Vindicator uses no Man is to be discharged or exempted but for insufficiency in Estate But however that Order were it is evident that the Act of Common-Hall 24 E. 3. is far from being antiquated or repealed and is of force as to the Obligation which the Body of the City laid upon every individual Person of the City and upon all Inferiour Courts or Councils and if the Penalty be duly taken away that will not weaken the Sanction of such a declaratory Law And surely no Man can say that because of this Alteration the exempting or discharging a sufficient Person from being Sheriff will not be to the Prejudice of less sufficient Persons who shall be oblig'd to serve before their turn or that it will not tend to the Desolation of the City and to the Hazard of its Franchises As I take it all the Citizens are precluded by this Act from saying otherwise than themselves did so long since by their Predecessors and yet speak in this their standing Law III. I come now to consider how the Custom has been which by what has already appeared could not signify much if it were contrary to these By-Laws and yet as I shall shew that is quite otherwise than the Vindicator would seem to believe In the 18 th Edw. II. one John Causton had been chosen Sheriff at the usual time he not appearing whether upon personal Notice by Order of the Common-Hall or upon a Proclamation is uncertain the Aldermen and Commons were summon'd to be at Guildhall the Michaelmas Day next following On which Day Causton was disfranchised and put out of his Aldermanship And one Alan Gill was chosen Sheriff and sworn Afterwards at the Hustings holden on Monday next after the Feast of Simon and Jude Causton came and put himself upon the Mercy of the Mayor Aldermen and Commonalty and begg'd to be restored to his former Estate proffering to take the Shrievalty upon him The Mayor Aldermen and Commons having the same Day consulted together and Respect being had to the Impotency or Insufficiency of Gill Causton was admitted to his former State and sworn Sheriff after which he was accepted and sworn at Westminster Observe 1. Here was a Disfranchisement by Common Hall before any Act of other Common Council was made in the Matter and indeed as it will appear before there was any other Common Council or any Authority to make By-Laws given or confirmed to the City by any Charter 2. The Common Hall restores a Man who had been disfranchised 3. It discharges a Man who had been actually sworn Sheriff To come to Times after the supposed Settlement of the present Common-Council and of the Livery Common-Hall In the 18 th Hen. 8. one Thomas Hinde was chosen Sheriff by the Common Hall He not appearing his Default was recorded and the Mayor directed the Persons that were of the Common Council of the City to resort up to their Place accustomed there to hold a Common Council and that all others should abide within the Hall In that Common Council the Ordinance above-mentioned 24 Edw. 3. was read and agreed to be put in execution Hynde not yet appearing it was shewn to the Commons by the Common Clerk in the Recorder's Absence that inasmuch as the City was destitute of a Sheriff and also in consideration that the Day of presenting the Sheriff at the Exchequer drew near they should immediately proceed to a new Election Then the Commons chose Simon Rice on a Saturday The Day for presenting the Sheriffs being the next Monday the Commons were appointed to meet on the Sunday But Rice not being to be found such Persons as were of the Common-Council were again ordered to resort up to their Place accustomed to Council where it was ordered that every Citizen who had depâ—â—â—ed out of the City since the Friday before should forfeit 20 l. Thereupon the Commons being ordered to proceed to another Election chose William Robins who appearing before the Lord Mayor Aldermen and Commons swore before them all that he was not worth 1000 Marks upon which Oath he was immediately clearly dismissed The Commons being again commanded by the Mayor to proceed to a new Election the Mayor and Aldermen returned to the great Chamber in whose Absence the Commons chose Mr. William Lok who making humble Supplication to the Mayor Aldermen and Commons shewed them that considering his Youth and great Charges he was nothing apt nor liable to take the Office upon him which Mayor Aldermen and Commons having Pity and Compassion of the said Mr. William Lok upon his said Declaration clearly discharged him for that time without making of any Oath The Commons being commanded to proceed to a new Election the Mayor and Aldermen withdrew as before and the Commons chose Mr. Nicholas Lamberd who was sworn Sheriff At this time it is evident beyond Contradiction that though the Lord Mayor gave the Rule as Chief in the Common-Hall and he with the Common-Council in the Council-Chamber set the Penalty upon Absenters the Discharge of the Persons chosen was in the Common-Hall and the Act of the Common Hall Within three Years after this the Authority of the Common-Hall in this Matter exclusive of all other Powers is asserted in a very remarkable Instance They having chosen Sheriff one Mr. Ralph Rowlet an Officer in the Royal Mint the King wrote to the Mayor and Citizens shewing that Mr. Rowlet was occupied in the Charge of the Mint and therefore
transacted in the first Common-Hall where Richmond petition'd the whole Commons as well as the Mayor and Aldermen for a Discharge which he could not then obtain and further the Commons agreed That he should be committed to Prison Wherein they with the Mayor and Aldermen acted as a Court of Justice and Common-Council If the Council of the City which urg'd an Act of Common-Council were the Common-Council it self then it is evident that they acted there but as of Counsel or Advice to the Common-Hall in which that Entry places the Authority of Discharging If they were the Cities Counsel at Law who mention'd this then the Common-Council had no share in any part of that Transaction otherwise than as part of the Common-Council in Common-Hall assembled who consented to the committing Richmond Still some will hang upon that part of the Entry concerning the Second Common-Hall where Richmond is said to be discharged by the said Common-Counsail there holden When it manifestly was the very same Body of Men to whom he petitioned for a Discharge which he could not then obtain and by whose Consent he was committed to Prison for his Disobedience and Obstinacy To give colour to their Sense they must have it that tho' Richmond sued to the Mayor Aldermen Common-Council and Common who would not then discharge him and tho' after he had fined all met to discharge him and chuse another yet the Commons met only to chuse another and the Mayor Aldermen and Common-Council to discharge him And tho' the Discharge is plainly shewn to have been in Common-Hall where the Common-Council cannot pretend to act as a Council with Authority and that at length after the Commons as well as the Common-Council had been applied to by the Recorder yet they must fansie that the Common-Council withdrew out of the Common-Hall and went up to the Council-Chamber to make a particular Order for his Discharge Of which there is not the least mention or intimation in relation to that Second Common-Hall But as this is meer Imagination not only without ground but directly contrary to the careful and solemn entry of the Proceedings from the beginning to the end it is evident That the Common-Council was but part of the Common-Counsail there holden consisting of Mayor Aldermen Common-Council and other Commoners Farther yet if it should appear by other Evidences as I make no doubt but it will That the Commons of the City with their Officers and Council assembled in their Common-Hall or other Folk-mote in their own Persons or by Representation have from long before the reputed Conquest to this Day been and continued the Common-Council of the City and that the Common-Hall wherein Richmond was discharged from serving Sheriff was a true Representative of all the Commons it will be certain that all together were properly called a Common-Counsail And if the Common-Hall as now compos'd be the same with that which discharg'd Richmond it will also follow That the Right of Discharging belongs to this Common-Hall And that it is the true Common-Counsail or rather Council of the City Take all the Precedents together as they strengthen and give Light to one another and I think there can be no question but they will so explain and govern following Orders of Common-Council that not one of them shall be taken as a Precedent to the Contrary Unless it can be shewn that the Person discharged by the Common-council has been look'd upon in Law as duly discharged before the Commons have allowed of the Discharge by proceeding to a new Choice and even tho' they absolutely refus'd to chuse again However lest it should be thought that all the Entries since the Reign of H. VIII to 7 Car. I. when the Order was made on which the Vindicator lays his chief stress are on the Side of the Common-Council I shall give the Words of the Journal of the Common-Hall 1 Eliz. which may govern all the Entries to 7 Car. I. Common Hall In Congregatione Majoris Aldror ' Communitatis Civitatis Lond ' apud Cuihalde xxi Die Sept ' Anno Reg ' dnae Eliz. Dei Grat ' Ang ' Franciae Hiberniae Reg ' Fidei Defensor ' c. primo Forasmuch as Mr. Walter Jobson Citizen and Cloth-worker of the said City of London who was lawfully elect and chosen the 11th Day of August last past by the Commons of this City one of the Sheriffs of the same City and of the County of Middlesex for the Year next ensuing after the Feast of St. Michael the Arch-Angel now next ensuing hath since that time signified and given sufficient knowledge unto my said Lord-Mayor and Aldermen that he by reason of Sickness and debility of Body wherewith he a long time hath been and yet is fore vexed detain'd and troubled as he saith is not in any wise able to take upon him the exercice and execution of the same Office accordingly In consideration whereof the said Commons have this Day eftsoons assembled for the Election of one other able and sufficient Person to bear and exercise the said Room and Office of Shrievalty for the said time in the stead aâ—d place of the said Mr. Jobson did this Day elect and chuse Mr. Roger Martin Alderman one of the Sheriffs of the said City and County of Middlesex to have occupy and exercise the said Office of Shrievalty from the Feast of St. Michael the Arch-Angel now next coming unto the Feast of St. Michael the Arch-Angel then next ensuing accâ—rding to the ancient custom of this City in that behalf Here observe 1. That in the First of Eliz. the Common-Hall was a Court which kept the Journals of its Proceedings 2. That the Matter of which the Mayor and Aldermen had taken Cognizance was not within any By-Law So that they could not pretend to any Authority to discharge Nor is it said that the Party was discharged tho' they were satisfied that he was not able to hold Wherefore this Matter represented to the Common-Hall could be no more than as the Opinion and Advice of the Mayor and Aldermen 3. Accordingly the Common-Hall takes the Matter into consideration For they being assembled for the Election of another did elect in consideration of the Matter represented to them in Common-Hall 4. To put this Matter beyond Controversie it is observable That no Common-Council was held upon this Occasion and there is no colour of Authority or ancient Usage pretended for the Mayor and Aldermen to discharge without the Consent of the Common-Council Therefore Mr. Jobson must have been discharged by the Common-Hall or otherwise he continued Sheriff which 't is certain he did not 5. No other discharge of the Party is mentioned or implied than the Common-Hall's proceeding to a new Choice And if in any following Instances they have proceeded to new Elections upon such Inducements as they had at the respective times whether upon taking Fines or otherwise the Entries of Clerks can be no Prejudice
general Words in an Act of Parliament According to a Case 2 E. 3. wherein it was adjudged that though the Stat. of Westminster gave an Attaint against a Jury for a false Verdict an Attaint would not lie upon a Verdict in the City of London because of the Credit the Oaths of a City-Jury had by Prescription before the Statute Since therefore the County of London is the City's Farm and of such a Nature that what belongs to the Farm is not separable by the general Words of an Act of Parliament neither will the discharging the Sheriffs otherwise than at the Pleasure of the Electors that is of the City duly represented at least for that Purpose be to be taken from the Electors by a less Authority than a Parliament And if a Parliament cannot do it by general or doubtful Words much less can any others But to evince that the discharging or amoving is incident to the Right of the Election I must observe that in other Counties which are not of Fee though the Choice of Sheriffs was at common Law in the Freeholders of the Counties yet the Sheriffs had their Commissions and Authority from the King And as they have their several Bailywicks under them they were and are the King's Bailiffs of the whole County which in many Records is stiled their Balliva or Bailywick And though ordinarily the King constitutes them his Bailiffs for a Year they at Common Law were amoveable at his Pleasure But as the County of London is the City's Farm it is the Sheriff's Bailywick under the City whose Election and Confirmation constitutes him Sheriff without any Commission from the King And because the City is answerable to the King if the Sheriff be not able though not for his Crimes which several Charters provide against the Sheriffs used antiently to find Sureties to indempnify the City The Sheriffs therefore being but Bailiffs to the Electors in the Nature of the thing are amoveable or dischargeable by them and consequently by them only unless we suppose two supreme Powers within the City which according to Grotius's Argument against the Plurality of Gods are absolutely inconsistent 2. If there were any Question whether the discharging Sheriffs at Common Law belongs to the Electors Charters confirm'd by Parliament put it beyond Dispute In a Charter 1 Joh. after the Confirmation of the Sherifwick of London and Middlesex with all the Customs and Things to the Sherifwick belonging at the Rent of 300 l. per annum with a special saving to the Citizens of London of all their Liberties and free Customs it adds Moreover we have granted to the Citizens of London that they from among themselves may make Sheriffs whom they will and amove them when they will This is not only confirm'd in general by that King 's Great Charter at Runny-mead or Redden-mead and by H. Third 's Great Charter under the Cities Liberties and free Customs but by the express words of a Charter 11 H. III. and by two Acts of Parliament at the least one 1 the other 7 of R. II. In the first of which this is preserv'd among other Rights tho' not us'd And in the later tho' not us'd or abus'd And all of them are repeated and confirm'd 2 E. IV. And that of 7 R. II. is exemplified under the Broad-Seal 8 J. I. It is observable That the managing Part of the City took Care to leave the Parliamentary Confirmations of this and other Clauses which possibly they thought too much to favour the Commonalty out of the Confirmation of their Charter 16 C. II. However the Acts of Parliament stood in no need of Confirmation and the late Exemplification of the most considerable of them confirming the rest removes the Pretence of their being antiquated or lost by any supposed disuse And besides what I have mentioned according to the Cities Plea to the Quo Warranto in Michaelmas-Term 1681. The entire Benefit of these Charters in this Point was confirm'd 5 H. VIII 2 E. VI. 1 Mar. 4 Eliz. 6. J. I. 14 C. I. To which not to mention others I may add the Statute 7 H. IV. which after providing that Holy Church the Lords-Spiritual and Temporal and all the Cities and Burghs have and enjoy all their Liberties and Franchises before that time granted adds And that the Great Charter and the Charter of the Forest and all the Ordinances and Statutes made in the time of our Sovereign Lord the King and in the time of his Progenitors not repealed be firmly holden and kept and duly executed in all Points It may be material here to shew how the Law as to the Cities Liberty and Franchise for the chusing and amoving Sheriffs was taken in the next Reign after the making that Statute In the 6th of H V. a Sheriff dying in his Shrievalty the Mayor Aldermen and the more sufficient of the Commons that is as will afterwards appear the Livery-men were summon'd before the King in Council to shew their Right to chuse upon the death of a Sheriff They appearing answer by the Recorder That among other the Libertus granted to the Citizens of London and ratified in divers Parliaments it is conâ—â—iâ—ed That the Citizens of London may make Sheriffs of themselves as often as they will and amove them when they will By reason of which Liberty they say That often hitherto after they have chosen Sheriffs from among themselves who have behaved themselves ill or died as it now happened they have chosen others in their stead This Plea was then allowed by the Counsel or before the King in Council where such Matters us'd to be determin'd And it was said to the Mayor and Commons That they should use as they had done hitherto Where the Chusers and Amovers are agreed to be the same And that these were the Mayor and Aldermen with the more sufficient of the Commons And if it will appear that these were the Livery-men here is a Judgment of that time That according to the Charters confirm'd by Acts of Parliament the chusing and amoving or discharging of Sheriffs belongs to the Livery-men and consequently to none besides If the above-mentioned Charters and Acts of Parliament in affirmance as I have shewn of the Common-Law are not enough to preserve the Cities Right of amoving or discharging Sheriffs as well as chusing them and if they may not chuse Persons exempted by Order of a Common-Council as well as others it is in vain to talk of such a thing as Legal Rights For none can be more firmly and plainly established If it be said That the City has this but not the Citizens which meet in Common-Hall It may as well be said That they are not the Electors in any Case for whoever are by Law the Electors have Right to disallow Exemptions by others even by the King himself as in Rowlet's Case and to amove or discharge in as full
a manner as they have the chusing Farther yet Whatever is inconsistent with an undoubted Right is absolutely void but for the Common-Council to discharge a Person whom the Common-Hall and they themselves as Part did chuse by an undoubted Right is inconsistent as it makes the Right useless and therefore such a Discharge must be void And the same will hold against Exemptions and indeed if others may exempt they cannot chuse whom they will In either Case they are defeated of what the Common-Law and Charters confirmed in Parliament vested in ' em 3. Since therefore they remain the Electors it will be a great Question whether they could barr themselves or succeeding Common-Halls from a Right so incident and annexed to the Election as the amoving or discharging a Person chosen Sheriff or exempting Persons being chosen according to the Notion of Sir Robert Filmer and others of Supreme Power in which they mistake only for want of observing how the Power which is in its Nature indivisible is seated and enjoyed To this Matter I may well apply what that great Man the late Earl of Clarendon says of the Supposition That our Ancestors had absolutely submitted to the Will of a Conqueror If it can be supposed That any Nation can concur in such a Designation and devesting themselves of all their Right and Liberty it could only be in reason Obligatory to the present Contractors Nor does it appear to us That their Posterity must be bound by so unthrifty a Concession of their Parents To which I may add that of Grotius No Man can oblige himself by way of Law that is as a Superior And hence it is that the Authors of Laws have Right to change their Laws yet any Body may be oblig'd by his own Law not directly but by consequence that is to say as he is a Part of the Community according to natural Equity which requires that Parts should be compos'd with respect to the Whole But here the Electors stand in the Place of the whole Body of Citizens and therefore might at any time re-assume the Right which belongs to them as Electors However that they shall not be thought to have parted with it by Implication in suffering a Common-Council to act as if the sole Authority in this Matter rested in them tho' for a longer time than can be pretended here may besides the reason of the thing appear 1. From observing some parallel Cases 2. From the Resolution of Judges directly in this Point First I may observe some Cases of many wherein a greater length of time than is supposed here can take away no Right 1. Discontinuance of part of the Services belonging to Tenure when the Lord of a Mannor has been possessed of other Part or at least of the Principal as in Bevil's Case According to which possession of the Right of Chusing carries with it the incidental Right of Exempting and Amoving or Discharging 2. Where a Custom which has long obtain'd is contrary to the Common-Law Right confirm'd by Magna Charta of a considerable Body of Men. Thus from the Precedent in the Case of the Earl of Warwick 14 or 15 H. VII a Custom and suppos'd Prerogative had obtain'd for the King to name a select Number of Peers to try any one of them for his Life And this is supported not only by the Opinion of the Lord Coke but by the Year-Book 1 H. IV. where there is a formal Account of the Trial of an Earl of H. in such manner at that time When it appears by the Summons to Parliaments at that time that there was no other Earl of H. besides the Earl of Huntington And the Record of 2 H. IV. shews that he being taken in open Rebellion was executed by the People without any Legal Process This and other Evidences of the Right of the Lords to fair Trials having been communicated to several of them occasioned their Resolution Jan. 14. 1689. That it is the ancient Right of the Peers of England to be try'd only in full Parliament for Capital Offences Which they explained three Days after excepting Appeals for Murther or other Felony Which Resolution was 189 Years since the Precedent to the contrary which had been followed ever since to that Day 3. It is to be consider'd That the Right here in question is a Right belonging to the Citizens of London by Prescription confirm'd by Charters and Acts of Parliament And a Right which as has appear'd above the present Representatives of the Citizens for the election of Sheriffs were possess'd of in the Reign of H. VIII if not as late as 1 Eliz. But if the Custom ever since or for a much longer time had placed the Exemption and Discharge in others such a Custom could not destroy the Cities prescriptional Right For tho' Interruption may destroy the prescriptional Rights of particular Persons it shall not such Rights of Cities and Boroughs as may be regularly exercised without confusion Accordingly tho' some Boroughs never sent Burgesses to Parliament above once twice or thrice in one or two and some not in three hundred Years they in pursuance of several Votes of the House of Commons from the 18th of J. I. downwards have been restored and remitted to their Antient Right As Agmondesham St. Albans Alverton alias Allerton Andover Asperton Beverley Botolph Dunster Fawy Gatton Herewich Honyton Lancaster Leychesfeld Lee Malton Marlaw Magna Okhampton Oreford Pontefract Preston Richmond Seaford Webâ—eley Wendover Wych I shall take leave to observe what is cited upon this Occasion in one of the Reports of the â—ommittee of Privileges An. 1628. from Hankford 11 H. 4. The long discontinuance might come from Poverty or the nescience or neglect of the Sheriff Tho for certain in so long a Succession of Parliaments these Burroughs had sufficient Opportunities of freeing themselves from any Prejudice which might arise from such â—â—science or Neglect and by so long a Sufferance seem to have given up their Right Yet it appears to be a Right of such a Nature as is assumable whenever they are in a condition to exercise it For evidence of which I take leave to add a farther Instance that no discontinuance tho for several hundreds of Years shall destroy such a Right Which is the Case of St. Edmond's Bury in Suffolk This by King Cnute's Charter confirm'd by Edward the Confessor and afterwards by W. 1. and whatever some talk of the publishing his Laws in French according to the Usage of his and former Times published or proclaimed mâ—re than once in the Saxâ—n Tongue appears to have been a Burrough from the Time of K. Edmond who died about 800 Years since and yet but one Precept can be found for this Burrough to send Members to Parliament till within late Days and that single Precept was as early as 30 Edw. 1. nor was there any Return upon it But