Corpus into the King's Bench Henry Samborn then High-Sheriff of Oxford-shire returned That the University had as well the Custody of the City as of the University and the preservation of the Peace and keeping of Watches and the Government of them in the City and University and that the University had power to make Laws for the Government as well by Night as by Day of Scholars and Townsmen And then shews a Statute of the University imposing a Penalty of Forty shillings upon Night-Walkers and so justified these Proceedings against Painter Now the Court of King's-Bench having nothing before them but the Return and their Judgments being confined to it what could they do less than remand the Party But let the University shew how they came by the Custody and Government of the City and who gave them Power to make By-Laws for the Government of it The City being baffled by the Return in the King's-Bench immediately applied themselves to the King and amongst other things complained That the University had lately claimed upon Record the Custody and Government of the City and Power to make Statutes to bind the Citizens And thereupon the King referred the Matter in their Petition to several Lords of the Privy Council who by Award dated the 22d June 1612. reciting that part of the Petition did declare in these words following viz. That the University and City were two distinct Bodies and had several and distinct Jurisdictions and that the University hath not the Charge or Custody of the City 〈◊〉 And in another part of the Award these Lords did declare That the Authority of the Mayor was in its kind absolute and in no sort subordinate to the University Now let the University take this whole Case together and they will find they had no reason to magnifie themselves in the Case of Painter but to be as much ashamed of it as they ought to be of some others since But we can put them in mind of a late Case and that is the Case of Dodwell in Easter-Term 30 Car. 〈◊〉 in the Common-Pleas who being sued in the Vice-Chancellor's Court for Forâ—â— Shillings for being out of his House after Nine of the Clock moved for a Prohibition and upon long debate and hearing Council on both sides had a Rule for a Prohibition by the Opinion of the whole Court We do not dispute the Universities Power to walk in the Night it may be convenient for the government of the University for securing their own Members and keeping them within their Colledges but this is a Walk and not a Watch and ought not to restrain the Officers of the City from doing their Duty and keeping Watch and Ward according to the Laws of England Their Predecessors were not so fond of Power they were contented to be secured by the Watch without having the Burthen of it And indeed it is most reasonable the City should be trusted with this Power for they are answerable for all Miscarriages committed within the City in the Night-time If a Man is killed in the Night and the Man-slayer escape the whole Town is to be amerced and if a man is robbed and the Felon escape the Hundred is to answer Now besides the city it self we have an Hundred within the Liberty of the City 3. By the same 〈◊〉 the Clerkship of the Market is granted to the University with free Power to dispose of the Stalls and Standing-places in the Market to have the full Government of the Markets and to take Toll in the Markets The University hath only a Title to the Clerkship of the Market and that did anciently belong to the City but the Markets and the placing of them and all Stallage Piccage and all other kinds of Toll and Profits therein except the Toll of Grain by ancient Usage and Prescription do yet belong unto the City and for the Profits thereof the City doth pay a large Fee-Farm to Their Majesties So that in case that Charter shall be confirmed by Parliament the City will lose the Markets and the Profits arising thereby which is a very considerable part of that Revenue whereby the Corporation is maintain'd and supported The University in their Defence pretend that by the Charters H. 3. and Ed. 3. they have the full Government of the Market and all incidents to it Those Charters which are the only Charters they have before 11 Car. relating to the Markets do grant them only the Assize and Assay of Bread Wine and Ale and the oversight of Weights and Measures They say the City upon Complaint in Parliament desisted from taking Toll and in the year 1429. did in Convocation disown Toll and Stallage and that a publick Instrument was thereupon made but they do not shew by whose order that Instrument was made or that it was ever sealed nor indeed was it ever sealed It seems incredible that the City should renounce their Title to Toll and Stallage and yet be suffered to receive them both throughout all Ages to this very day Surely this matter did not appear to Judge Jones 9 Car. who at the request of Arch-bishop Laud Chancellor of the University and the Earl of Berks Steward of the City did undertake the hearing of this matter and upon hearing Council on both sides did 〈◊〉 That the Market and things incident to it and all Toll except of Grain did belong to the City The University will not allow that the City do pay a Fee-Farm for the Profits of the Market but Dooms-day Book and many ancient Inquisitions in Eire do plainly prove it 4. Power is given to the University by that Charter to hold a Court Leet or view of Frank-pledge as well over the Town and all the Inhabitants as over the University that it shall be a full and compleat Leet and that the University shall have the Perquisites thereof and Power to distrein for the same Whereas the City hath five Leets one absolute and compleat for Northgate Hundred and the four other for the four Wards within the City and therein have all the Power of Leets except 1. The Enquiry into the Assize and Assay of Bread Beer and Wine 2. The examination of Weights and Measures 3. The punishment of Forestallers and Regrators 4. The punishment of putrid Victuals 5. The punishment of those who wear Arms in the University And 6. The survey of the High-ways and Streets which being anciently likewise in the City were 29 Ed. 3. surrender'd into the King's Hands and by him granted to the University And for these six Points the University hath ever since 29 Ed. 3. held a qualified Leet over the City and Suburbs for so much and for so many things and Enquiries as were given to the University 29 Ed. 3. And this Leet is to be served by a mixt Jury one half â—…viledg'd men and the other half free And the Penalties imposed by the said â—niversity in this Leet are to be estreated and sent to the City and to be
their Merchandise we are beholden to them for that But this Charter makes no such distinction that is a general Exemption to all priviledg'd Persons from all Taxes and Contributions whatsoever And it is fit to be considered whether if this Bill pass all persons whom they shall priviledge will not be discharged from all Duties upon the Acts for the settling the Militia and other 〈◊〉 Duties now in force 〈…〉 The University have already pretended upon the strength of this Charter only That priviledg'd persons are exempted from those Acts and they will have good Reason for it when that Charter shall have the Sanction of an Act of Parliament 10. The University by means of a Composition made shortly after the Conflict 29 Ed. 3. and confirmed by the said Charter do require the Mayor and 62 Citizens with him yearly upon Scholasticas-day which is the Tenth day of February to repair to St. Marys Church in Oxford and to make an Oblation there upon the high Altar of 63 pence for the Souls of 63 Scholars slain in the time of King Ed. 3. This being in the Original gross Superstition is too great a Badge of Popery to be required in a Protestant University The University confess the Superstition but say The Mass and Offering were enjoyned at the Request of the City in exchange for the yearly Sum of One hundred Marks which were first imposed upon them But the contrary is most true for the Award was made by the Bishop of Lincoln who had no Power to impose the yearly Payment of 100 Marks and the 100 Marks were only a Penalty to secure the performance of the Superstition and that appears by the Covenant of the City 14. May 31 E. 3. to say Mass and make the Offering and the Bond of the City 15. May 31 Ed. 3. to pay 100 Marks yearly and a Writing of the University 16. May 31 E. 3. whereby the University agree that the 100 Marks yearly shall not be paid if the Superstition is duly observed so that the Award intended the performance of the Superstition and not the Payment of the 100 Marks yearly But the University say that this Superstition by consent of both Parties in Q. Elizabeths time was changed into a Sermon a Communion and an Offering We find no Footsteps of any such exchange but if any such there were the University have been ever since very fond of their old Superstition for they never since preached or had a Communion upon that day but they do yet require us to Offer as heretofore And in the year 1660 they petitioned the King and Council and therein set forth That the Mayor and 62 Citizens ought to make an Oblation of 63 pence in Memory of a great Slaughter of Scholars committed upon Scholasticas-day and prayed an Order for the continuance of it and it was ordered accordingly 11. By the said Charter it is granted That Scholars or Priviledg'd persons shall not be impleaded in the Courts of Westminster for such things as the Chancellor hath cognizance of and that they shall be dismissed from thence without pleading their Priviledge or paying their Fees which doth often fall out to be a very great Oppression to the Officers and Ministers of Justice for if upon demand of the Vice-Chancellor they do not discharge such priviledg'd persons the Vice Chancellor by colour of this Clause doth imprison the Bailiff as on the 20. of October in the Year 1689 he did one Edward Adams a sworn Bailiff for not discharging Henry Wildgoose who was arrested at the Suit of the City by a Writ issuing out of the Court of Common-Pleas And by colour of the said Clause if any person sue a priviledg'd man in any of the Courts of Westminster the said Vice-Chancellor doth cite the Plaintiff into the Court of the University for breach of their Statutes and doth condemn him in Expences for sueing a priviledg'd person out of the University To this part of our Case they Harangue upon the Antiquity and Usefulness of their Court We do not complain of their Courts but the abuse of them although it may seem strange that any Government should suffer a Court so repugnant to the Laws of the Country They seem to insinuate that the Imprisonment of the Bayliff hath been twice at least acknowledged in Westminster-Hall But we believe the Vice-Chancellor would scarce be able to maintain it if the Bayliff should bring an Action of False Imprisonment against him We never heard of any such Case and if there were we have reason to believe it was dress'd up as Painter's was 12. By the said Charter it is granted that Priviledged Men shall have as much Liberty to Trade as the Freemen of the said City and by colour of this Grant the said University do take upon them to set up Trades and to License certain Persons whom they call Priviledged Persons openly to use Trades and to sell Merchandizes within the said City and Suburbs by Retail which is contrary to the Ancient Charters Customs and Priviledges of the said City and to certain Compositions and Agreements made between the said University and City The University entitle Priviledged Men to Trade by Prescription saved by the oldest Charters of the City allowed in Parliament 18 Ed. 1st declared by the Charter of H. 8. and ratified by the 13 Eliz. It is most plain they can have no Right by Prescription so large as this Charter for the Charter is general and gives them Power to set up any Trades and the usage hath always been against them besides their own Charter 12 Ap. 10. Ed. 1. is an Evidence that they had no Title by Prescription to use Trades in Oxford for that Charter recites that the Burgesses of the Town would not suffer any that were not of their Guild to sell Linnen or Woollen Cloath in Oxford by Retail and therefore grants that others may sell such Wares by Retail or Whole-sale But the City having a Right by Prescription to exclude Foreigners that Grant will not take it from them And we can shew the University many of their Petitions to the King complaining that the City did exclude all Persons that were not of their Guild from selling Wares within their Liberties which had been needless if they had Power to set up Trades and sell Wares in Oxford as well as the Citizens Nor is it more true that the oldest Charter of the City saves their Right of Trading in Oxford the oldest Charters the City hath are granted by Henry the Second King John and Henry the Third The first of these grants and confirms to the City all Customs which they had in the time of his Grandfather viz. Particular Guildam suam Mercatoriam with all its Liberties and that none that is not of that Guild shall Merchandize in the City or Suburbs together with all Liberties and Customs which London had So that by this very Charter it appears that it was the Custom of the City to exclude Foreigners
in the time of the Grand father of Henry the Second who was Henry the First and none of these Charters make mention of the University or save their Rights It is true in a Charter of the City in time of Edward the First being an Exemplification of these Charters of Henry the Second King John and Henry the Third and a Grant of many other Particulars there is a saving of the University Rights in general But that Charter doth not grant to us any Right of sole Trading as indeed none can and therefore the saving cannot be applyed to it For the 18 Edw. 1. if they consider that they will find no Reason to presume that an Allowance to them to use Trades there are no words in it relating to Trades It only settles as we have said before what Persons shall have the Priviledge of the University which we deny to relate to Trade and if it did if they will stand to that Composition they will find their Priviledge much more narrow than they now enjoy it and if they will wave their Encroachments upon us and go back to the Composition 18 Edw. â— or to the other of 3â— H. 6. which their Predecessors took to be great Improvements of their Priviledges we will readily allow all Persons within those Compositions as much Priviledge as they will desire for them For the Charter 14 H. 8. that was a great Encroachment upon our Trade but yet nothing so large as this We have been the larger upon this Branch relating to Trade because we know what would become of our Corporation if we once allow whom they think fit to matriculate a Right to Trade amongst us A Power to Trade without the incumbrance of chargeable Offices by which the City doth subsist would soon draw all the Inhabitants of the Town into their Corporation 13. Whereas by certain Compositions heretofore made between the said University and City the Menial Servants of all Scholars and all their other Servants taking Wages without Fraud or Deceit are to enjoy the Priviledges of the University the said University upon pretence of later Grants have fraudulently and with an intent to weaken the Government of the said City granted colourable Priviledges to divers Members of the said City and upon pretence that they were become the Under-Groom Gardiner or Officer of some Colledge have matriculated them and whilst they have continued Members of the City have administred unto them an Oath to the Effect following viz. You shall swear That you shall not attempt any Cause of yours before the Mayor or Bayliffs of Oxford neither shall you answer before any of them as your Judge so long as you shall continue a Priviledged Person So God c. Which is in terms repugnant to the Oath which every Freeman of the City doth take at the time of his Admission into the Liberties of the said City and particularly they have within the space of Three Years last past matriculated one William Turton upon pretence that the said William Turton was Gardiner of Exeter Colledge whereas the said William Turton was a Freeman of the said City and did continue to use the Trade of a Vintner during his Life and obtained the Title of the said Office only to avoid the bearing such Offices in the said City as his condition and substance had made him capable of They have also upon the same terms matriculated one Henry Wildgoose a Freeman and one of the Common-Council of the said City who being apprehensive that he should be chosen into the Office of Chamberlain of the said City did to avoid the same about two days before the Election for the said Office procure himself to be matriculated upon pretence that he was a Groom to one Doctor Irish although the said Henry Wildgoose did and yet doth continue the Trade of a Painter within the said City and hath no further Relation to the said Doctor Irish than to Protect himself against the said City and by colour of the said Matriculation the said Henry Wildgoose being Elected Chamberlain of the said City did and yet doth refuse to accept the said Office and is protected in his Disobedience by the University by which means other Citizens are encouraged to withdraw themselves from their Majesties Service in the said City The University do not in their Defence deny they have matriculated Wildgoose and Turton but say they matriculated Wildgoose as Servant to Doctor Irish and as a Limner and Turton as a Vintner As for Wildgoose an Action being brought against him in the Court of R. B. at West Term. Mich. 1. W. M. for refusing the Office of Chamberlain the University demanded Cognizance of the Cause because he was Servant to Doctor Irish but it appearing to the Court that Wild-goose was a Freeman and a Member of the Common-Council and an House-keeper and kept Shop in the City and that he was matriculated but two days before the Election and had declared that he would be matriculated to avoid the Election the Court were of Opinion that the City were abused in it and that the Matriculation was fraudulent and therefore denyed them Cognizance The University not contented with this Resolution in Hillary Term following moved the Court again and having found in the Compositions 18 Edw. 1. and 37 H. 6. that Limners were to have the Priviledge of the University they demanded Cognizance because he was a Limner tho' they thought of no such thing when they matriculated him but it appearing to the Court that Limners were such only as did adorn Books by painting them with Gold and Water-colours before Printing was known and that Wildgoose was a Painter-stainer and it appearing also to the Court by the very Compositions which they produced that none was to have the Priviledge of the University that got it by Fraud or Malengine they did again deny to grant them Cognizance For the Case of Turton they find they cannot justifie his Matriculation as Servant to a Colledge though that was his first Title they will therefore now entitle him as the University Vintner Whether he stood upon that or the first Title it is plain he was matriculated only to elude the Election of the City and to defeat their Power over him they never pretended to Priviledge any Vintner before as such nor have they any Foundation for it by usage or composition The Reason of allowing Priviledge is that Scholars shall not be taken from their Studies to Answer in the King's Courts but that Reason will not justifie this Case nor is a Vintner so necessary an Attendant upon the University that he may not do his Duty to the Government They have never before pretended by their Priviledge to discharge the Members of any Corporation from their Duty they owe to it they may with as much Reason practice the same thing upon the Citizens of London as upon us we are as much a distinct Corporation from the University as they are The University
THE CASE OF THE City of OXFORD SHEWING How far they are concerned to Oppose the Confirmation of the Charters and pretended Priviledges of the UNIVERSITY WITH AN Answer to a late Pamphlet Printed at Oxford Entituled A Defence of the Rights and Priviledges of the Vniversity of Oxford The PREFACE IT is now Three Years and more since the University of Oxford first troubled the World and both Houses of Parliament with the Charter 11 Car. 1. we are sorry they should think this the most favourable Conjuncture which hath happened these Threescore Years to establish Arbitrary Power in Oxford when the Nation is in full possession of Liberty and hath lately rescued it self by Arms from Slavery and Oppression Those Gentlemen could not bear the Yoak themselves but would lay a more intolerable one upon us and make the City of Oxford the only place that hath no Inheritance in the Laws of England The Reverend and never to be forgotten Bishop Fell who was a true Patron and Guardian of the University whose Heart and Soul were in their Interest never attempted a Confirmation of this Charter but was contented with those wise and moderate Men that went before him to reserve it in Chains of Darkness and it had undoubtedly been consigned to everlasting Rest had not the spirits of some few Men disturbed its quiet and forced it into Publick It had unquestionably been more Wise and Honourable for that Great and Venerable Body to have buried this Charter in the same Grave with that Reverend Prelate that procured it than to set it up at this day to convince the World that nothing will satisfie them but the exercise of an Arbitrary Power over their Neighbours established by Law for let them pretend what they will they cannot produce one Article in that whole Charter besides that of Printing which may be serviceable to the Honour of God the Advancement of Religion the Encouragement of Learning or the Good of Mankind To make their Charter go down the better they have lately published at Oxford a Book Entituled A Defence of the Rights and Priviledges of the University of Oxford with the Imprimatur of Jonathan Edwards Vice-Can Oxon. We are concerned that we must complain that we did not meet with that Sincerity in that Book which became that Worthy Body whose Name it bore wherein the Author pretends to Charters which he never saw nor the University ever had he hath abused Records and consulted more what would serve his turn than what was true We would not here be thought to charge that whole Body with so much disingenuity the do admire and honour them for their Learning and Integrity and do passionately desire to maintain a good Correspondence with them But we must be excused if we say That the Licenser hath published those things in the Name of the University which the University will not nay cannot with Honour own The great Design of that Book is to evince That nothing is granted in that Charter which was not their unquestionable Right before how well they have performed it is the design of the following ' Papers to shew wherein we Challenge our Adversaries to produce one Instance in which we have prevaricated or one Record or Charter which we have mistaken or misrepresented But admitting their Position true that nothing is granted by this Charter which was not their unquestionable Right before why are they then so zealous for a Confirmation of it All their other Charters are confirmed by the Act of 13 Eliz. And if all the Grants of this Charter are comprized in their former Charters then are all the Grants of this Charter confirmed already If they think the Act 13 Eliz. not of force enough or are desirous to renew it a Confirmation of all their Charters except this 11 Car. 1. which we submit to will implicitly confirm the particulars granted by this if they were included in their former Charters In the following Papers we do not condescend to that part of the Book which shews the Wit of the Author more than his Judgment or Discretion particularly when he tells us they are our Benefactors and that we spend their Money but we shall take the Liberty only to advertise the Author and the Licenser with this 〈◊〉 Observation That it is as hard for Mankind to remember their beginning as their latter end The University tell us in their Defence that they desire this Confirmation of their Charters only to secure themselves from a return of those Encroachments in any succeeding Reign which they experienced in the last If they are sincere and design no more then let them Examine this Charter and if they can find any thing which may strengthen them against the Crown or give them any new Priviledges not relating to us we shall submit to them and be glad to see them Enacted in her Verba but they are mistaken the good Arch-bishop took care only to make them Lords at home but left them as much in the hands of the King as they were before We shall not endeavour to weaken the Reputation of their former Grants by shewing that they were obtained in the dark Times of Popery and Superstition and by the mighty Interest of those who had the Seals as well as Consciences of Princes in their power although some of them did not pass without Reflection in the Ages in which they were granted as appears by the Statute 9 H. 4. Cap. 1. whereby in a General Confirmation of the Charters of all the Cities and Burroughs of England certain Franchises granted to the University of Oxford are excepted And the Charter 14 H. 8. procured by Cardinal Woolsey was shortly after the making it branded as unreasonable and a Bill passed the House of Commons in two several Parliaments for the Repeal of it but these Parliaments were discontinued before the Bill was perfected The University themselves were so sensible that that Charter was an Invasion upon us that in an Answer in Chancery 22 H. 8. to a Bill preferred by the City they declared they had not nor ever intended to put it in execution But these Charters have been long since confirmed and we submit to them it being our desire only to preserve what is left and to transmit that Liberty and those Priviledges to our Posterity which we have received from our Ancestors altho' we cannot but observe upon the Statute of Queen Elizabeth as an extraordinary thing that Threescore Charters obtained in the dark and upon Princes who never considered nor perhaps knew the Contents of them should be confirmed in gross But we submit our City and our selves to the Wisdom and Justice of this Parliament who we are assured will be tender of us and weigh and well consider this Charter which will be the best Confutation of it The CASE c. 1. BY a Charter bearing date the 30th day of March 11 Car. 1. the Licensing of Taverns is granted to the University and all Magistraâ—…