Charter Therefore upon the whole matter I do humbly pray your Iudgment for the King that they may be outed of their Franchise of being a Corporation Sir George Treby Recorder for the City THE first thing that I shall I hope maintain is I. That a Corporation or the Being of a Body Politique it not forfeitable The Nature of a Corporation in its Existence Powers and Actions is to be considered A Body Politick or Corporation is created by the Policy of Man 1 Inst 2. The Persons Incorporate are created a Body and are of capacity to take or grant do or act according to the Powers and Authorities in their Creations given them and to no other purpose only a Capacity and not properly a Franchise 1 Inst 250. Brook therefore in his Title of Corporation makes his Title Corporation or Capacity 2 Bulstrode 233. The Body is invisible therefore cannot appear in Person Dissolution of a Corporation there may be As where the Persons incorporated all dye Corporation of necessity is thereby dissolv'd 1 Inst 13. b. Rolls Ab. 1. 514. But no Book or Case mentions Dissolution by Forfeiture In the time of H. 8. when the Corporation of Monks Nuns and other Religious Houses were dissolv'd Had it not béen a very easie way if this Doctrin of dissolving by Forfeiture would have done it thereby to have effected the Kings purpose It was but to have issued out a Commission and thereby find but one illegal Act or Miscarriage done by the Corporation and thereby the Corporation dissolved But in Henry the Eighth's time or afterwards the Surrenders made by Corporations was of their Lands not of their Corporations or Bodies Politique as appears 2 Anderson 120. Dean and Chapter de Norwich's Case 3 Rep. 74. For tho they surrendred their Church and all their Possessions and Franchises yet the Corporation remain'd not thereby dissolv'd Fullcher and Heyward Jones 198. Palm 491. Davyes Rep. 1. b. And Encounter le Opin Dy. 273. 282. And therefore to this time viz. 3 Car. I. when these Cases were adjudged and argued the Law was taken to be that a Corporation could not be dissolved by Surrender And the Statute 27 H. 8. 31 H. 8. 34 H. 8. for dissolving the Monasteries none of them mention Surrender of the Corporations And the the word Forfeiture be in those Statutes thereby is not meant forfeiture of Corporation but forfeiture of the Lands of the Abbots by Attainder viz. Abbots of Glassenbury Colchester and others attabited upon the matter of the Kings Supremacy And so it appears Rolls 2 Rep. 101. But if it should be admitted That a Corporation may be surrendred and thereby extinct and destroyed it is no consequence that they may be forfeited For there are many things surrenderable that are not forfeitable As Annuities granted pro Concilio impenso impendendo which are persnal Interests and so fixed to the Person as not transferrable by Grant Forfeiture or otherwise Much more then of a Corporation which is far from being grantable or forfeitable it is the very Capacity or Existence and inseparable in its Nature from the Persons incorporated Worseling Manings Case Lane 58. Rolls Abr. 1. 195. Alien obtains Letters Patents of Grant of Denization Proviso That the Grantée do his Legal Homage and be obedient to the Laws of the Kingdom He never doth his Homage nor is obedient He shall not hereby forfeit or lose his Denization or Capacity that he hath granted him by his Patent II. That this Information now brought is insufficient and no Judgment against the Corporation can be given upon it It cannot be maintained against the Corporation as now brought but should have béen against the particular Persons Rex vers Cusack Rolls 2 Rep. 113. 125. Palm 1. In a Case of great Authority and upon a Writ of Error out of Ireland upon a Iudgment in a Quo Warranto against the Corporation of Dublin a Quo Warranto was brought against Cusack and others Aldermen of Dublin who pretended to have Priviledges and a Guild and to be a Corporation and this I presume is for their being a Corporation for there is a Cur ' advisare vult upon that and so 't is not put in the Case but 't is also brought for several Liberties that they did pretend to claim that they only and no others should sell and buy all Merchandizes there and no body should buy of another or sell to another but to them that all Merchandize should be brought to their Common Hall there c. Now as to those Liberties they are forejudged that the Liberties should be seized and they outed As to their claiming the Corporation there is a Cur ' advisare vult so the Case is in Palmer but in the other Book Rolls 115. there 't is agreed If a Quo Warranto be brought to dissolve a Corporation it ought to be brought against particular Persons for the Writ supposes that they are not a Corporation and 't is to falsifie the Supposal of the Writ to name them as a Corporation Now here this Writ supposes them to be a Corporation or else they could not be Defendants and then it comes and falsifies that supposal by assigning that they are no Corporation nor ever were or if they had they have forfeited it and so all the foundation that this Writ stands upon is destroyed My Lord in this Case of Cusack I am assisted further with a Report of it in my Lord Chief Iustice Hale's Book a Report of very great Authority with all Men of our Profession and there he says expresly If a Quo Warranto be brought for the Vsurping of a Corporation it must be brought against particular Persons because it goes in disaffirmance of the Corporation and Iudgment shall be given that they be outed of the Corporation but if it be for Liberties that are claimed by a Corporation it must be brought against them as a Corporation 'T is in my Lord Hales Common Place Book which is in Lincolns-Inn Library fo 168. placito 7. My Lord this is our very case if you go about to say our Corporation is forfeited or must be dissolved nay more you say it has either never béen or by forfeiture it is lost so long ago then here is nothing can come before the Court This Information is brought in dis-affirmance of the being of the Corporation and therefore there must be set up some body capable of being a Defendant in such a Suit and that is particular Persons which ought to have béen named as was in that Case of Cusack For as the Iudgment of Ouster of particular Liberties given against particular Persons will not bind the Body of the Corporation so the Iudgment of not being a Corporation will not be good to charge or oblige particular Persons unless it be given against particular Persons that usurp the Corporation The Individual Fréemen of London cannot possibly be bound by this Iudgment for they are not here before you nor were they
or Scandal the King or his Government And for these great Crimes committed by the City I pray Iudgement against them Mr. Pollexfen upon another day for the City his Argument IN this Case when I consider the greatness and consequence of it That it affects the King the Parliament the Laws the very Government under which we have lived this great City of London and all other Corporations and People of England and their Posterities for ever I cannot but be troubled that I should be the Man to whose Lot it should fall to argue it but that which comforts me is that your Lordship and the Court upon whom the Iudgment of this great Case depends will help out my Defects and according to what is required in the great Places you bear take care and provide that by your Iudgment the ancient Government and Laws of this Kingdom receive no Damage or Alteration The King's Counsel have on their side only some general words out of old Records of Forfeitures and Seisures of Liberties which are of uncertain and doubtfull sense but there is not on their side produced any one Precedent Iudgment or Opinion to maintain the point in question viz. That a Corporation or Body Politick ever was determined or dissolved or taken away for a Forfeiture No not in the maddest of Times in the Times of Edward the 2d and Richard the 2d when the Tumults and Disorders were so great that they not only seized and took away Liberties and Franchises but the Lives of Princes Nobles Iudges Lawyers and all that stood in their way In those times though they have hunted and searched with all diligence not one instance of a Corporation taken away or dissolved by a Forfeiture is cited So that from hence I hope I may safely conclude that I argue in this case for the old and known Laws as they have been ever practised through all Ages and against that which never hath been practized or known which is a great Encouragement to me The Pleadings being very long I shall only repeat so much of them as I use when I come in order to speak of them I. The first thing proper to be spoken to is the Information it self and therein I make this Question Whether as to that part thereof that chargeth the Corporation with usurping upon themselves the being of a Corporation whether that be properly brought against the Body Politick as this is or ought to have been brought against the particular Persons I do agree that as to the other things mentioned in the Information the having Sheriffs Iustices c. The Information is properly brought against the Corporation And I do also agree that it may be good as to those things though bad and insufficient as to the charging the Corporation with Vsurpation of their Being without lawfull Warrant or Authority And that I may come singly to this Question I do put out all the other Franchises in the Information and take only what concerns this point and then the Information as to this point chargeth That the Mayor Commonalty and Citizens of London by the space of a Month last past before the Information did use and claim to have and use without any Warrant or Regal Concession within the City of London the Liberty and Franchise following viz. to be a Body Politick Re Facto Nomine by name of Mayor and Commonalty and Citizens and by that Name to plead and be impleaded which Liberty Privilege and Franchise the same Mayor Commonalty and Citizens upon the King by the time aforesaid have and yet do usurp This is the Substance of the Information as to this point and Whether this Information thus brought as to this matter be sufficient in the Law upon which a Judgment can be given or ought to have been brought against particular Persons is the Question I conceive it ought to have been brought against particular Persons and is insufficient as it is and that no Iudgment can be given upon it supposing the Defendants had demurred or pleaded nothing to it To make out the Insufficiencies I desire to consider what it imports 1. The very bringing the Writ and exhibiting the Information against the Corporation imports and admits the Mayor Commonalty and Citizens to be a Body Politick capable to be sued and impleaded respondere responderi otherwise there is no Defendant no Person in Court against whom the Suit is brought It is not enough that the Person sued be a Person by supposition or a pretended Person but none in reality If a Writ or Information be brought against a Baron and Feme this must admit that they are Baron and Feme really and truly and if there be any thing after in the Writ or Information that shews that they are not truly and really Baron and Feme but that they do wrongfully and unduly take upon them to be Baron and Feme when in truth they are not this would be contrariant and repugnant and abate the Writ or Information The like is supposed by the bringing the Writ or Information against the Body Politick it supposeth and affirmeth them really and truly to be such and the subsequent Affirmation that they usurped so to be and are not so really is contrariant and repugnant 2. When in the Information it is alleadged that the ayor Commonalty and Citizens the Liberty Privilege and Franchise of being a Body Politick Re Facto Nomine and to be sued and impleaded upon the King have and yet do usurp To usurp or doe any Act of Necessity imports and admits a precedent existence of the Persons that doth usurp or do the Act to the Act done Particular Persons may usurp and take upon themselves that which they have no right unto The Persons that doe the Act did before exist and had a Being And when a Corporation is said to usurp it of necessity must be supposed to have a precedent Being The sense of Vsurpation in a Quo Warranto is the Subject's taking upon him Franchises without Warrant My Lord Coke saith Inst 1.277 b. That Usurpation in the Common Law hath two significations 1. The one when a Stranger presents to a Benefice and his Clerk instituted and inducted he gains the Advowson by Usurpation 2. The other when any Subject without lawfull Warrant doth use any Royal Franchises he is said then to usurp upon the King So that an Vsurpation supposeth of necessity a Subject or a Person precedently in esso that useth the Franchise or that doth usurp That which is not in esse that hath no existence cannot use any Franchise cannot usurp The very alleadging that they usurp doth admit of necessity an Existence precedent in the Corporation such as can usurp or Act and therefore this Information is inconsistent with it self 3. But another reason to prove that it ought to be against particular Persons and cannot be against the Body Politick is drawn from the Iudgment that must be given upon this Information if
that Opinion in Law so the Mischiefs would be great if the Law were otherwise For First That no Corporation hath any other Creation than other Franchises have 't is undoubtedly true that the King is the Original and Commencement of all Franchises they have their beginning from him the Books are clear and full in it I need not quote them though there are many Kelway 138. 17 Ed. 2. 530. in the Reports of those times set forth by Mr. Serjeant Maynard Now my Lord there can be no Corporation but by the Kings Letters Patents for even the Prescription doth suppose there was the Kings Patent to create it at first And therefore the proper Inquiry will be about the Second thing II. How far the Breach of Trust that is annexed to a Franchise is a Forfeiture of that Franchise First of all There is no Rule in Law more certain than that the Mis-user of a Franchise is a Forfeiture of that Franchise This the Statute of 18 Ed. 2. does very well prove which was an Act of Grace to restore Franchises to those that had lost and forfeited them There it was restrained Ita quod libertat ' non sint abusae And my Lord Coke 2 Inst in his Observations upon the Statute of Westm ' 1. That Chapter of it that concerns Towns that exacted more Murage than was granted fol. 223. says They shall lose that Grant for ever says the Mirror of Just which my Lord Coke there quotes that is no more than the Common Law for the Law wills that every Man should lose his Franchise that does misuse it So the Abbot of St. Albans Case 8 Hen. 4.18 The King seized the Franchise into his hand because the Abbot who had the Goal would not give Pledges to make Deliverance and for detaining his Prisoners a long time without making a lawful Deliverance And so 20 Ed. 4. 6. The Abbot of Crowland's Case for detaining Prisoners acquitted after Fees paid the King seized the Goal for ever These two are cited by my Lord Coke 2 Inst 43. And in Sir George Reynel's Case 9 Report Fitzherberts Abridgment Titl ' coron ' placit ' 233. A Layman was taken in a Robbery the Ordinary challenges him as a Clerk whereas he was a Layman It was ruled that for his false challenge the Ordinary should lose his Temporalities to the King and lose his Franchise to challenge Clerks for him and his Successors for ever Thus far is plain That Franchises if misused are forfeited and that though enjoyed by Persons in a corporate capacity as appears by the Cases put And then as a Corporation may forfeit any Franchise they are seized of in right of the Corporation so may a Corporation forfeit the Franchise of the Corporation it self upon the same ground and reason in Law unless any one will say The Franchise of being a Corporation cannot be misused and that would be a very strange matter to assert Every Corporation is entrusted with a Franchise to make Laws for Governing the Subject within its Iurisdiction If that Power be exercised to the Subjects prejudice as it may be it were an hard matter if there were no Law to redress that Grievance Suppose a Corporation under their common Seal should authorise a Rebellion would any Man say that were no forfeiture 'T is said indeed by Pigott 21 Ed. 4. f. 13. Arguendo upon a Case where the Question is Whether a Corporation should avoid a Bond entred into by the Mayor by Duress That a Corporation can neither commit Treason or Felony but upon the same reason that he urges That a Corporation cannot act at all that is abstractedly from all the Members of it for so this Notion is that a Corporation is a Body in consideration of Law only and not reality and therefore the particular Act even of the Head of that Body shall affect him personally only But this is only a Notion of his arguing but it is the best opinion of that Book that Duress to the Members did so affect the Corporation that it should avoid the Bond. Now my Lord a Corporation may be surrendred and surely that that may be surrendred may be forfeited and I shall offer you some Authorities in this case 12 E. 3. rot claus memb 36. A Writ is directed to the Constable of Dover reciting That the Cinque-Ports had seized divers Goods of several Merchant Strangers Portugueses and others and the Writ commands that Right should be done or else the Franchise should be seized into the Kings hands 6 Ed. 2. rot claus No. 5. The Liberties of the City of Bristol were seized and the custody of it granted to _____ for divers contempts and injuries done per Majorem Ballivos Communitat ' to the King and so the close Rolls of R. 2. m. 6. There is another Case that comes further Pasch 9 Ed. 1. Majus rot 25. I find it likewise among my Lord Chief Iustice Hales Collections that he has given to Lincolns-Inn Library I took it out of that Book 'T is in the Collection of the Adjudicata in the time of Ed. 1. fol. 28. a. Thus it was There was the Abbot of St. Austin in Canterbury had made an Agreement with the men of Sandwick about paying ten Hogsheads of Wine yearly to the Abbot and there was due to the Abbot some thirty Marks and he had Iudgment and Execution went out and thus 't is in the Book Vic. de Mandatur quod Levari fac ' 30 Marcas de bonis ipsius ad opus Abbatis pro pretio 10 Doleorum Vini annuatim solvend ' And they made rescue when the Sheriff came to execute the Writ and they were sued for that and the Iudgment of the King and his Council which was by Parliament for it was adjourned into Parliament was Quod Libertas de Sandwick sorisfact ' sit And there is this Observation tho it be written with the same Hand which is not his but the Clerks that transcribed it Judicium illud extendit contra Barones 5 Portuum eorum libertates ut mihi videtur These are the Words of that Book And this will go a great way with the City of London as to their confirmation of Magna Charta for the Cinque Ports are confirmed by Act of Parliament as well as they But my Lord there are many Cases of like nature and that even in the Case of the City of London too as I shall shew you by and by Now tho these are not Iudgments in Quo Warranto's to out a Corporation of a Franchise of being a Corporation yet it shews that these things were forfeitures of all the Franchises of a Corporation for a Seizure is never but where there is matter of forfeiture found upon Record as in Sir George Reynel's Case or to ground a forfeiture upon which to bring a Quo Warranto as in our Case But in the Case of 9 Ed. 1. there it does appear Iudgment was given by the Parliament that the Liberty
ever sued For it is the Corporation that is here made Defendant and I do not consider the number that make up that Body that London's being populous alters the case for the case is the same if it were the Corporation of Quinborough or any other petit Corporation Suppose 20 Men be a Corporation or pretend to be a Corporation and you come to enquire by what particular means these Men pretend to be a Corporation or as the words of this Quo Wartanto are usurp to be a Corporation you must not say that they are one and then say they usurp it for 't is not the Corporation that usurps to be a Corporation that is impossible but 't is the particular Persons that usurp to be the Corporation when indéed they are none A Corporation may usurp a Market or they may usurp a Leet but they cannot usurp themselves It appears my Lord in Mr. Townsend's Book of printed Presidents a laborious thing it is and wherein he hath collected all the Presidents he could méet with of Quo Warranto's and there is but one in all that Collection that was brought against any Persons upon the score of their being a Corporation And what is that how was it brought not against the Corporation that was but against the Corporation that never was that is to say a parcel of People that took upon themselves to be a Corporation when indéed they were not and that is but one single President neither In Coke's Entries 527. Tit. Quo Warranto the King against Helden and other Burgesses of Helmesly for usurping to be a Corporation by the name of the Burgesses of Helmesly How does the Attorney General there bring his Writ he brings it against particular Persons My Lord Hobart who was then Attorney General never thought he could have maintained his Quo Warranto or expected Iudgment against them if he had brought it against the Burgesses of Helmesly generally and then have said that they were no Corporation but he brings it against those particular Persons and thereupon they come in and disclaim their being such a Corporation and the having the other Liberties and the Iudgment is That of those Liberties those particular People should be ousted and should not intermeddle with them Now my Lord what Iudgment can be given in this Case that the Mayor Commonalty and Citizens shall not intermeddle with the being of Mayor Commonalty and Citizens 'T is a very reasonable Iudgment that Helden and those particular Persons should not intermeddle with such a Liberty or be in such a Corporation but if such a Iudgment he given against the City here that would be as much as to say That you have never béen what you are or you shall never be what you are that is the English of it And my Lord I am sure as there never was but one Quo Warranto that we can find any printed President of against the being of a Corporation so that very President is not against those that really were so but particular Persons that usurped to be so And if you search all the Records of this Kingdom and all the Books in all the Offices you will never find any that is brought against a Corporation for being a Corporation upon pretence that they might be made none by a Forfeiture and no Prerogative of the King shall extend to excuse this but his Action shall abate if it be not right brought as well as the Subjects and so is Plow'd Com. fol. 85. Further my Lord I have another Authority in this point and that is in the Case of the Corporation of Maidenhead which hath béen so often cited by Mr. Sollicitor and it is in Palmer 80 81. where 't is said When the Attorney General hath supposed them to be a Corporation it is not usual to plead them to be a Corporation otherwise if he had questioned them as Inhabitants of such a Town then they ought to enable themselves Those are the words of that Book And what can be more plain Here the Attorney General supposes us to he a Corporation his Replication flies in his own Face and he having supposed it at first he is bound not to question us for our being a Corporation at any time after As to the business of forisfecerunt 't is a strange and a new word that never came into any Quo Warranto before that I know of but we will accept the new word but not the thing and that they have forfeited by such and such Acts this sure will be very hard upon us for if it be a Forfeiture it must relate to the time of the thing done to the time of the making the Act of the Common Council to the time of the Toll levyed or to the time of the Petition and if it do so it must relate like a Forfeiture for Treason it must reach all mean Acts all the Leases that we have made since are gone all the Iudgments that we have given in any Cause are Coram non Judice and void all the Acts of the Corporation are overturned by this forfeiture and we have béen under a vast mistake all this while We have had no Mayors nor Sheriffs no kind of Officers no manner of regular and legal procéedings but we have béen under a great mistake ever since this money was ordained or levyed We have forfeited all and that it is so is plain because in all Quo Warranto's wherein persons are convicted for usurping of Liberties there is a Fine set upon them for continuing that Vsurpation and reason good then if it be an Offence for continuing the liberty we must be fined for doing it ever since the Forfeiture when if Mr. Attorney General 's Rule be right there has béen no such Corporation but we ought to have discontinued all our acting as a Corporation and laid it down and so every step that we have taken since hath béen irregular and every Act void If so be an Action be brought against Baron and Feme and the Plaintiff should in his Replication say they were divorced several years before has he not undone all his pleading Here then is our Case Mr. Attorney General admits us to be sueable and yet charges us to have no capacity to be sued I do implead you but you have no right to be impleaded here he brings us into Court and when he has brought us here he quarrels with us for being here he makes us Defendants and then questions whether we ought to be so and so his great Charge against us is that we are what he would have us to be and what he hath made us to be for if a Month before the Information the Corporation was not but the very being of the Corporation was usurped how come we at the Months end to be Defendants Here comes a new creation interposed in that time and makes us parties sueable in the Court when by the Charge in the Information we were not so a Month before
I understand not for nothing can be more flat and plain against him If so be we should forfeit our Toll or our Market be it so nay if we should forfeit our Liberty of having a Common Council what then how is it possible to bring it up to a Forfeiture of the Corporation You shall forfeit a Court of Pypowders if you forfeit your Market because 't is incident to it and dependent upon it and subject to what dangers the Market it self is subject to but the being of a Corporation nothing can transcend that To be sure what is incident to it cannot transcend it 't is but a Subject to that which is is superiour For example sake my Lord I will cite you a Case which is the Case of the City of London too about the measurage of Coals It is Sir Julius Caesar's Case 1 Leon ' 106. And I choose to cite that Book for though it did not come out with your Lordships Authority yet my late Lord Chancellor gave this just accompt of it That it was one of the best of our later Reports Sir Julius Caesar libelled in the Admiralty against the Officer of the City for measuring Coals upon the Thames Fleetwood came to the Bar and prayed a Prohibition and Edgerton the Solicitor on the other side complained that the Mayor of London did take a Fine for this measurage and made an Office of it and this he conceived was Extortion which is the thing complained of here in so many words and being upon the Thames should be punished in the Admiralty As to that the Iudges replyed by no means and Wrey Gawdey said if it be Extortion in the Mayor there is no remedy for it in the Court of Admiralty but in the Kings Courts and it shall be redressed here in a Quo Warranto says Gawdy 'T is true a Quo Warranto might well have been brought for redressing that Extortion but it could not mean thereby that the Corporation should be dissolved And that it was so understood is most plain for accordingly a Quo Warranto is brought You have it in Cokes Entries fol. 535. and 536. placit ' 4. And the City of London appeared and pleaded and prescribed to it and thereupon the Attorney General that then was my Lord Coke himself was satisfied and confessed their Title and Iudgment was given for them and since it hath been held good and they have enjoyed it in peace and this I hope is a good Example for Mr. Attorney to follow in this Case My Lord I come now to that part which I come least willingly to I mean that of the Petition and that which I have to say in it is this my Lord. First I say That this Petition is justified in the Pleading and I hope it is very justifiable if it were but excusable 't is enough That it is justifiable to Petition the King in our necessities and extremities is plain from what my Lord Hobart says fol. 220. He says it was resolved by the Court in Renham's Case that it was lawful for any Subject to Petition to the King for a redress in an humble and modest manner For as 't is there said Access to the Sovereign must not be shut up in case of the Subjects distresses Now the Common Council are not less priviledged than any other sure but rather more in this kind of Addressing and Petitioning I cannot tell what Crime to make of this there is so much alledged against us I did very well observe truly and would always observe and remember in all such Cases what my Lord-Kéeper here said to your Lordship That Council should not so much speak as if they would abett the Guilt of their Clyent rather than advocate for their innocency My Lord If the words themselves that are alledged are not words that are unlawful to be delivered or spoken then all this that they are dressed up with of the intention to censure the King and to bring him into dislike with his People all that must go for nothing and are not to weigh in the Case Now the Words are these That there was a Prorogation and by means of this there being depending so many Impeachments of Lords and others and Bills in the Parliament in both Houses which could not be perfected any where but there the prosecution of the publick Iustice and the making Provisions necessary for the preservation of his Majesty and his Protestant Subjects received an interruption Now my Lord I conceive these Words are not Words that in themselves are unlawful And for that your Lordship will be pleased to consider our Plea I néed not repeat it you have it before you If they are in sense and substance the same Words that have béen spoken by the King and the Lords and Commons in Parliament he that will not be satisfied with that Authority will not be satisfied with any Then what do we say We say that the prosecution of the publick Iustice received an interruption does not the King say so and more in his Spéech we have set forth wherein he recommends it to both Houses that Iustice may be done What is the meaning then but this if the further prosecution of the Offenders goes not on Iustice is not done and so we speak but the Kings Words We say they are not tryed or they were not tryed they themselves complain of it to this day and therefore Iustice did receive an interruption I am confident without reflection that Honourable Person my Lord Danby in this point hath said Words much more liable to exception though truly Words that I believe deserve no rebuke He has complained that Iustice was not done in his Case because he was not tryed and that when he desired to be tryed too but his Liberty taken away and he forfeited that which was dearer to him than Lands or Honours his Health whereby he endangered his Life and lost all the comforts of Life If it were lawful for him to say as certainly it was That Iustice was not done in his Case why might not the City say so Either these Lords ought to be condemned or they ought to be acquitted 't is hard to say Iustice is done when they lie so long in Prison and are not either acquitted or condemned Then we say this That the making Provision for the preservation of the Kings Person and of his Protestant Subjects received an interruption To this part we give this Answer We set forth That there were Bills depending in the Parliament for this purpose and that is agréed to us by the Demurrer and that these Bills could not pass into Laws any more than the Lords could be tryed but in Parliament Why then if so be it be so that the matter cannot be done nor provision made but as that Proclamation that issued for the Fast said and as the Addresses of both Houses for the Fast do say By the blessing of God upon the Counsels of King and Parliament if
was done seditiously or not if not then there is no sufficient Assignment of a cause of forfeiture if it were then 't is a crime for which the Offender is indictable and that I say is absolutely impossible for a Corporation to be guilty of And here I will throw in also that business of the Toll and I will for argument sake admit the taking of a wrongful Toll to be Robbery and then let the argument go on I have heard it said within the Bar occasionally that a Corporation is intrusted with the Government and that they may commit Treason and raise Sedition as Mr. Solicitor hath said I suppose it must be under their Great Seal But I confess I believe it is rather spoken to amuse than to satisfie but I really think it is no ill nor unjustifiable thing for me to say nor against the Government to affirm That 't is impossible a Corporation can commit Treason or that it is intrusted with the Government in any such kind But first my Lord I shall shew you what Opinion former times had and that because such an Opinion as this hath been broached of late days Lord Chief Justice Mr Recorder Will you be much longer Because I must sit here at Nisi prius this Afternoon and yet I would feign hear the Argument if it would not be too long Mr. Recorder No my Lord I have almost done and will cut short In 21 E. 4. fol. 13. b. 't is said by Pigott That a Mayor has two abilities the one to his own use to take and to grant and to do as another natural person does and then the Mayor as Mayor and Commonalty hath another Capacity to their common use and profit and that is but a name an Ens rationis a thing that cannot be seen and is no substance and for this name or Corporation 't is impossible they can do or suffer any wrong as to beat or be beaten as such a Body but the wrong is made to every member of the Body as to his own proper person and not as to the name of Corporation nor can the Corporation do a personal wrong to another nor can they commit Treason nor Felony as to the Corporation nor against any other person And if a Writ of Debt be brought against the Mayor and Commonalty or other such Body upon an Obligation and they plead it is not their Deed and it is found their Deed they shall not be imprisoned as another single person shall The same Law is if they are found Dissessors with force they shall not be imprisoned nor in a Writ of Ravishment of Ward they shall neither be imprisoned nor abjure the Realm for such a Body is hut a name to which such an act cannot be done So says Catesby in the same Book In a Writ brought against them no Capias shall issue because they are but as a dead person in Law and the Appearance upon a Capias cannot be otherwise than personal And so to this purpose says the Chief Iustice there If this Body will do any thing it must be done by Writing And all along it is the Tenor of the whole Case that a Corporation cannot commit Treason or any other Crime But the reason of the thing is above any Authority Suppose that they under their Common Seal should commit Treason and you bring an Indictment of Treason against the Mayor Commonalty and Citizens of the City of London what Iudgment shall be given against them in their corporate capacity What it shall be that Suspendatur per collum Corpus politicum And then what execution shall be done upon that Sentence What must they hang up the Common Seal Nothing else you can do can affect them but in their private capacity there they may be punished as single persons A Penal Statute says That he or she that offends against the Law shall forfeit so much or incur such a Penalty Is a Corporation Male or Female that it should come under such a provision but the real reason of the Law is this it is a civil Being it is Ens civile it is Corpus politicum it hath civil qualities but it hath no moral qualities and all Offences consist in the immorality of them and there must be malice to make that immorality No words or Acts are Treason or Felony unless there be a traiterous mind or a felonious mind and therefore a mad-man cannot be guilty of Treason or Felony Serjeant _____ brought an Action for these words That he had spoken Treason it was moved in Arrest of Iudgment that this cannot be Actionable for he might speak Treason in putting a Case ay that were well said they if it could be understood so but we must intend it that he spoke Treason as his own words ex corde suo which makes it Treason for Treason consists in the immorality of the mind Another reason is what Pigot said as I said before That a Corporation is but a Name an Ens rationis a thing that cannot sée or be séen and indéed is no substance nor can do or suffer wrong nor any thing where a corporal appearance is requisite What my Lord Dyer says in Moor 68. that he never saw is I believe true in general that no Man ever did sée that a Corporation could be bound in a Recognizance or Statute Merchant and why because it must be acknowledged in person And so in this case The Guilt follows the Person but cannot a méer capacity In all Crimes the Offender must appear in person and plead in person and suffer in person but you can never bring the Mayor Commonalty and Citizens into Goal to appear and plead to an Indictment to receive a Iudgment or suffer Execution Can a Body Politique that is invisible appear in person Obj. But then there is this great Objection By this means they say if there be no punishing of them there is no Government and they may commit Treason under the great Seal they may raise Armies and instigate a Rebellion and all with impunity Sol. My Lord I say no and I give two Answers to it that are not to be replyed to and the first is this 1. All these Persons that are met together though they are met corporaliter in their corporate capacity â—â—r the Acts of the Corporation at that time yet when they go out of their corporate business and commit Treason or Felony the Crime does not egredi personas every one of them is a Traitor or a Felon and notwithstanding they appeared there under the pretence of a Corporation yet they are all liable in their private several Capacities every one of them must be indicted personally and suffer personally For when they go about to do such a thing 't is out of the business of the Corporation and they must answer for their own particular Offences But 2. I have another Answer to give to it This Objection is to be retorted on the other side That if a
Defendant or Plantiff in any Court My Lord Magna Charta and all the other Acts that have gone in confirmation of it shew the great care of the Government in all Ages to preserve the City of London and I look upon them as so many Declarations of the immortality of it and all other Corporations I shall use a strange Argument perhaps at first hearing but 't is to me a great Evidence for us that Magna Charta does not confirm our being but our Liberties and Priviledges it says That the City of London shall have all its Liberties it confirms its Léets its Markets and all those things that is it confirms all that it has it has not saved indéed if a Corporation indéed be built upon a Corporation but that particular Liberty may be destroyed as that of Bridewel and the like but it does more than confirm its being for it does implicitly declare That that was impossible to be forfeited They confirm what néeded confirmation but for their being there was no néed of that it only confirmed the supervenient Liberties with out which it might be a Corporation but as to its being it medled not with that And if it were not so it were an unreasonable thing that we should have so many Acts of Parliament that give such particular Powers to the Mayor and Commonalty of London and scarce any Act of Parliament that relates to the Publick but London is mentioned and taken care of in it Are not all these Declarations that London should stand for ever Would not any one have said else Pray what do you put such confidence in London for There is not such a fickle thing upon the Earth as the being of the Corporation of London If they lay but 6 d. upon a Ioynt of Meat they are gone and there is not a month in the year but they forfeit their being The Act for Administration hath a Proviso that says it shall not extend to London Why does any Man think that this Law was not intended to be as perpetual for London as for other parts of the Kingdom They did not question but London would be a Corporation as long as England was England It would be a strange thing in the Example of it that the World should be taught by one instance that a Corporation can be ruined when so many People put their Trusts in those Corporations and so many vast Inheritances depend upon them And I think the King and the Government or those you call so are more concerned to preserve London than all the Persons that are in it I would not speak it in this place by way of Argument for my Client but I think I could maintain it in all places only I hope and believe I shall have no néed for it My Lord All Innovations as this must certainly be a very great one are dangerous This Frame of Government hath lasted and béen preserved for many hundreds of years and I hope will do so as long as the World lasts My Lord I néed your Patience but I have just done Here is a Charge that is very little indéed there is nothing in the matter of it but the great consequences are fitter to be meditated on than spoken of And therefore for these Reasons I do pray That these Liberties may be adjudged to us and we may be dismissed out of this Court Termino Paschae next ensuing Mr. Justice Dolben being discharged the beginning of the Term and Sir Francis Withens in his place Sir Robert Sawyer Attorney General for the KING I. THIS Information is not brought for the taking away or destroying the Corporation for tho it be true that there be in it the words Et penitus excludatur yet that is but form the intention is only to prune and take away the Excesses and Abuses and therefore no danger of falling into such inconveniences as suggested on the other side In Rolls Abr. Tit. Prerog 204. It appears by Petitions in Parliament that London and Norwich and other Cities have had their Liberties seized into the Kings hands for some abuses and miscarriages in the Cities and sometimes restitution granted other times refused and answered that they were in good condition These Petitions were 13. 18. E. 1. The Liberties of the City are not intended to be destroyed but preserved and maintained and this Suit designed to that end II. That this Information brought against the Corporation by the name of Mayor and Commonalty and Citizens is good and well brought What is alledged against it out of my Lord Chief Iustice Hales his Book is not any opinion but a Nota upon the Case of Cusack And in the Case of Cusack the Iudgment is against the particular persons named alios Cives although not named But further It is not necessarily intended that though they are sued by the name of Mayor and Commonalty and Citizens that they are sued as a Corporation or Body Politique For by those words the Citizens and Inhabitants are comprehended and expressed and an Information lies well against Inhabitants or Citizens without naming any persons by particular name and there are divers Presidents of Quo Warranto's so brought Mich. 27. Eliz. C. Entries 537. Quo Warranto contra Inhabitantes Burgi de Denbeigh Quo Warranto they claim a Court of Record and other Priviledges Mich. 15. Car. I. Quo Warranto against the Corporation of Chard By 2 Car. I. the like name of the Corporation against Canterbury But 't is true that in these Cases are no procéedings to Iudgment But Trin. 6. Jac. Quo Warranto against the Corporation of New Malton and thereupon Iudgment is given against the Corporation III. Next that the Replication alledging Forfeiture is not repugnant to the Information for though the Forfeiture should determine the Franchise yet it remains not vested in the King until the Forfeiture appears upon Record by Office or Inquisition finding it or by Iudgment upon Information and therefore this Information well brought against the Corporation IV. That a Corporation or Body Politick may be forfeited is beyond all doubt A Corporation is a visible Body of Men and every of the Members thereof hath a Fréehold in it Sir James Baggs Case Co. Rep. 11. Co. Rep. 10. 14. That all their Acts are performed by natural Persons That all Corporations derive their Commencement from the Kings Grants 49 E. 3. 3. Br. Corporation 34. And are erected for better Government either of persons inhabiting within such a Township or place or that are of such a Trade or Mystery 1 Inst And the Books cited to prove that it is a Capacity do not prove it not to be a Franchise or Liberty But on the contrary all Books that speak of it agree it to be a Franchise Priviledge and Liberty which the Persons incorporate have by the name of their Corporation If then a Franchise or Liberty then nothing more common and certain That Franchises or Liberties abused are thereby forfeited 1 Inst
suo pro Usurpatione Libertat Franch predict ' That this is the Form C. En. 559. a 537. 527. b 3. That this Iudgment of New Malton passed sub silentio for there is no mention of it in any Book nor doth it appear that ever the Question was moved or debated And for Precedents in matters of Practice and Process they are of Authority but in point of Law unless they have been upon Debate are of little authority to prove what the Law is Rep. 4. 94. Slade's Case L. 5. E. 4. 110. But on the contrary all the Precedents that are in any printed Books of Informations where brought to question whether Body Politick or not are against particular Persons by name Against Christopher Helden and others C. En. 527. Pal. 9. fo Rol. 2. r. 113 115. Rol. 2. 455. Quo Warranto against Cusack and others Quo Warranto against the Virginia Company was brought against Nic ' Farder and others Quo Warranto they claimed to be a Corporation Some of them pleaded insufficiently upon which there was a Demurr and a Question How the Iudgment should be entred for that the Master and chief of the Company were left out of the Quo Warranto By which it appears that it ought to be brought against the Master and particular Members by Name Next for the express Authorities in this Case to prove it cannot be against the Corporation Rol. Rep. 2. 15. is express That if a Quo Warranto be brought to dissolve a Corporation the Writ ought to be brought against the particular Persons for the Writ supposeth that it is no Corporation The difference there taken when the Attorney General supposeth the Defendant to be a Corporation otherwise when he questions them as Inhabitants of a Vill. then they ought to enable themselves they must then shew themselves a Corporation also prove it Fol. 168. My Lord Hales in his Common-Place Book in Lincolns-Inn Library saith thus Nota Sc. Quo Warranto soit port pur usurper de un Corporation serra port vers particular Persons quia in disaffirmance del Corporation Judgment serra done que serra ouste mes si le quo Warranto soil port pur Liberties claim per Corporation serra port vers le Corporation This is positive This if it were only my Lord Hales's Iudgment were of no little Authority but I think it is a Report taken upon the Case of the Quo Warranto against Cusack and others But Mr. Attorney finding as I believe that all the Precedents to be against him For in them all there are either non Pross or no Procéedings to Iudgment the Causes whereof or at least some of them probably might be the Insufficiencies of these Informations And finding also the Authorities in Print which have been cited to be all against him and none for him endeavoured to maintain the Information as brought not against the Corporation but against the Citizens or Inhabitants of the City in their Natural Capacities and to that purpose cited the Case C. En. 537. of a Quo Warranto against the Inhabitants of a Village Quo Warranto they claimed to be a Body Politick And argued That a Quo Warranto lyes against the Cives of such a City or Burgenses or Tenants This seems to be rather a sudden conceit and altogether undigested and not well considered But in answer thereunto and to prove that this Writ is brought against the Defendants as a Corporation and cannot legally be taken in any other Case If a Mayor and Commonalty plead that they are seized in Fée Leo. 1. 153. they néed not say in Right of their Corporation the Name shews them to be a Corporation it néed not be alledged An Action there brought by the Guardians and Fellowship of Weavers the Book saith Hob. 211. That they néed not set themselves out to be incorporate the Name shews it so of Cities saith the Book So then when the Writ is brought against a Mayor and Commonalty or Mayor Commonalty and Citizens the Law takes notice of them to be a Corporation and the Writ against them as such the Name shews it But against Inhabitants of a Village a Writ brought by the Name that cannot be taken to be other than Inhabitants the Name so shews it and in such Case some of the Inhabitants by Name viz. A. and B. appear in Person in their own and Names of the rest of the Inhabitants and plead and are Defendants Co. En. 537. So did they as appears in that Precedent No appearance ever was of Inhabitants in other manner But in this Case here are no Persons that do appear by Name but the Corporation appear and make an Attorney under their Common Seal The Corporation and no particular Persons are the Defendants before you or else you have no Defendants before you for there is none appearing in Person here is no Defendant nor none against whom you can give Iudgment but all the whole Procéedings vain and against no body So that if we should admit as Mr. Attorney argues That this Information is not brought against the Corporation then there can be no Iudgment for want of Defendants appearing in their Natural Capacities you must have it against the Corporation or no body A Mayor cannot be but where there is a Corporation therefore this Notion impossible as I conceive So that if there were nothing else in the Case if the Information be ill brought they can have no Iudgment against us 2. But admit that the Information as to this Point be sufficient Then I procéed to consider the other parts of this Case The Plea That contains the Defendants Title viz. That she is a Corporation time out of mind and many Confirmations by Acts of Parliament and Charters It is not denied but that the Title made by the Plea is good But next the Replication that contains 1. An Issue upon the Prescription viz. That the Citizens of London have not been time out of mind a Corporation by Name of Mayor Commonalty and Citizens c. 2. A Pleading over That the Mayor and Commonalty and Citizens taking upon them assumentes super se to be a Body-Politick and to have Power to make By-Laws 1. Colore inde but for their private Gain contra fiduciam per Dominum Regem Leges hujus Regni in them reposed took upon them to raise Money upon the King's Subjects by colour of an Ordinance by them de facto made and in Prosecution of this usurped Power 17 Septemb. 26 C. 2. The Mayor Commonalty and Citizens in their Common Council assembled Published a Law for Levying Money upon the King's Subjects that came to the Markets within the City viz. De qualibet Persona for every Horse Load of Provisions brought into any Publick Market within the City to be sold 2 d. a Day for every Dorser of Provision 1 d. a Day for every Cartload drawn with not more than thrée Horses 4 d. a Day
Corporation if its Duration and Existence be so fickle and infirm that every Abuser or Misurer shall forfeit it There will be no need of Officers to be amoved thereby to determine this Corporation at will and Pleasure this Position contains enough to doe all These great consequences attending this Doctrine of Forfeiture are Reasons to prove the Law otherwise Obj. But saith Mr. Attorney if I understand him we do not intend to destroy the Corporation though we say in our Pleading that you have forfeited your old Corporation that you have without any lawfull Authority usurped upon the King and pray in our Replication that de Libertate Privilegio Franchesia illa viz. the being a Corporation abindicantur excludentur These are but words of form we only will lay the King's hands gently upon it and seise it but the Corporation shall not be destroyed or dissolved Resp This is wonderfull and a great Compliment to the City as I take it let us not flatter or deceive one another We are not now in the irregular days in the Records mentioned nor in such fort of Proceedings as in those distracted times Let us not go by blind conjectures out of old Records and bring in unknown ways We are now in a Quo Warranto which as Mr. Attorney truly saith is in the nature of a VVrit of Right and a VVrit of right is the highest VVrit that is in the Law Rep. 9. 28. Inst 2. 282 495. and the Iudgment therein and in this Quo Warranto must be conclusive to all Parties If given against the Defendants it must conclude them for ever and dissolve their Corporation and if given against the King he shall never hereafter bring it in question for any cause precedent Cook 's Entries 527. D. hath a Precedent of it Consideratum est quod the Defendant de in Libertatibus Privilegiis Franchesiis pred in Informatione predict ' specificat ' nullo modo se intromittat sed ab iisdem penitus excludatur The like against Ferrers and the Virginia Company and many others may be found M. 21 Jac. r. 9. The Court cannot alter the Iudgment it will be erroneous if they doe And to talk of a Iudgment of a Seisure what is the meaning of it or such Iudgment Is it final or not final The Court must give a final Iudgment that the Party if he think fit may have his VVrit of Errour The Court will not take any of your old Records to go by if any such to be found that would warrant any other Iudgment Therefore a Seisure without such a Iudgment that determines the Corporation cannot be any way brought to pass as I believe nor can I understand in whom by your Seisure you would have the old Corporation to subsist Transferred from the Persons in whom it now subsists I think is impossible but dissolved by your Iudgment it may be And I hope your Lordship will not be induced by singular unwarrantable Things That a Iudgment should be given that shall neither dissolve the Corporation nor continue it that shall neither be for Plaintiff nor Defendant that shall leave the Corporation neither alive nor dead but in Transitu or Limbo Patrum A Iudgment Quod capiantur or quod Libertates Franchesii predict ' seisiantur in manus Domini Regis VVas there ever any the like VVhat shall be understood by it Shall we be afterwards a Corporation Shall our Magistrate continue Shall we have our Lands Markets Tolls Customs or Franchises or not Or shall we be none and yet not dissolved I must confess I am confounded in these Notions Next As to the Authorities in Law for me 1. I take it to be a great Authority for me that there is no Precedent or Iudgment or Book Case produced or found that ever a Corporation was forfeited It lyes upon the other side to produce it or shew it and no doubt they would if there had béen any but there is none by the Authorities they cite you may easily perceive any sort would not be omitted 2. The Nature of a Corporation as our Books do describe it shews it not forfeitable I take it plain out of the Case of Sutton's Hospital and the other Books there cited Rep. 10. 92. b. 21 E. 4. 72. A Corporation aggregate is Invisible Immortal and rests only in Intendment and Consideration of Law cannot commit Treason or Felony be Out-lawed Excommunicate hath no Soul cannot appear in Person cannot doe Fealty cannot be Imprisoned not subject to Imbecility or Death Br. Corp. 24. 34. They cannot commit any actual Trespass or Disseisin except under their common Seal by command precedent or assent subsequent when our Books say that they are a Body Politick and rest or have their being in Intendment or Consideration of Law thereby is meant that that they are by Law enabled to Act to particular ends and intents answerable to their ends and creations Their ends or creations are only to be subservient to the publick Good and Government and Preservation of the City or Town Incorporate of the Members thereof And if there be any Act done by the Members that are the active part of such Corporation to any other intent end or purpose This not the Act of the Corporation but of the particular Members and they only answerable for it And as to particular Offences and Miscarriages in this Case alleadged it cannot be denied but that the particular Members are answerable for it and if they then according to all Books they ought not to be doubly chargeable or answerable in both Capacities And the Case cited out of Bagg's Case of a Fréeman convict of Perjury and thereupon Disfranchised doth not prove that they shall be punished in a double Capacity for the Corporation is not thereby punished but preserved The being of a Body Politick is only a Capacity and in resemblance of a natural Body and no more forfeitable than a natural Body It is seising forfeiting of Liberties that we meet with that is such as are generally spoken of as Markets Courts Iurisdictions and the like And in the old Records by seising the Liberties of a Corporation is meant the taking from them their Officers and putting in others upon them for a time But a forfeiting dissolving and determining the Body Politick never was yet done or known nor as reasonable to believe ever entred into any mans thoughts till now for I have already shewn that Offences and Miscarriages that were committed by the Corporations in those troublesome Times of E. 1. E. 2. and R. 2. for which their Liberties were seised were not Forfeitures and Determinations of those Corporations they all remain Corporations by Prescription to this day And I have also taken notice that the Acts of Parliament that were made in the succeeding Kings Reigns of H. 4. H. 5. and H. 6. are only Acts of Confirmation to the Cities and Boroughs of the Liberties and Privileges From