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
assess by their By-law then have they done wrong and therefore our traverse is proper to their reasonable Toll that they had not time out of mind such a Toll as they set forth for it must be such a reasonable Toll as may answer to that which is assessed in the By-law and that they have not put in issue For the King when once he hath granted a Market cannot after grant Toll to that Market because it is a free Market and the People have right to come to it as a free Market neither can they when once by custom they have exercised their Power of assessing reasonable Toll alter that at their pleasure for it being once set all People have right to come upon such terms And if they increase the Toll under pretence to reduce it to certainty it will be void for they may lower their Price if they will but they can never come to increase the Penalty If therefore they have done all in not taking issue upon the Traverse which does take in the full substance of their Rejoynder if it be good then Iudgmene must be given against them upon that reason so then my Lord the Question will be Whether the making of a Law to raise Mony at large upon the Subject be a Forfeiture of the Charter And truly my Lord that it is For I. 'T is the usurping of a Power that they neither can have nor have by Law II. 'T is a Breach of the Trust annexed to the Corporation for 't is a Misuser of the Franchise to the oppression of the Kings Subjects and therfore the Charter must be forfeited and not the other Franchise not the Franchise of a Toll for they have none not the Franchise of the Market for that would be nothing If the Market be forfeited it must either be extinguished or kept if it be extinguished 't is a punishment to others that did not offend and if it be kept the it be forfeited 't is no punishment to them that do offend And 't is a Question whether a Market may be forfeited for taking unreasonable Toll and that appears in the Case of Maidenhead And as my Lord Coke says upon the Statute about taking Outragious Toll the Franchise should be seized only till it be redeemed by them But my Lord however without going far into that matter this Offence lyes not only in taking the money but in taking upon them and usurping a power to make Laws to raise money They have taken upon them a Legislative Power to oppress their fellow Subjects that is their Offence and that is a mis-user of their Franchise My Lord in the Case of Ship money it was not the Quantum of money that was raised that was complained or quarrelled at but it was the manner of levying of it without an Act of Parliament The Logick and Consequence of that was it which was so much debated and stood upon So here the abuse and the offence is the making the Law and the consequence of that for by the same reason that they have a Prescription to lay so much they may have a Prescription to lay ten times as much So that upon what I offer upon this point I conceive it ought to amount to a forfeiture of their Charter and the loss of their Corporation Then the next thing will be that which is the last matter that is the Petition and that is of a strange Nature where the Offence is not only in Presenting but in Printing and Dispersing of it it charges the King with interrupting the publick Iustice of the Nation and the making the Necessary Provisions for the Security of his Protestant Subjects for my Lord to say that the Prorogation of the Parliament which is the Kings Act who surely has alone and none but he the undoubted Prerogative of Calling Proroguing and Dissolving Parliaments to say that Act of his was an Interruption of Iustice is all one as to say the King did interrupt and 't is done by them as a Corporation 't is the Act of the City in their Common Council in the Name of the Corporation and as we have pleaded it the Mayor Citizens and Commonalty in Common Council did do it which sure is the Corporation as they would have it And that I rely upon for the reasons I offered before upon that point Then the matter of this Petition is the taking upon them to censure the King and his Government by this Petition The Printing and Dispersing it is now publickly Scandalizing and Libelling the King for 't is in the nature of an Appeal to the people 't is unlawful to Print any mans private Case while it is depending in any Court of Iudicature before it comes to Iudgment because 't is an Appeal to the people And that was my Lord Chief Iustice Hales Opinion in Colonel Kings Case And the ill consequences of such proceedings are so many and the danger so evident in these Licentious days that I do not know indeed whether it may tend The fact is confessed by them in their Rejoynder but they say they did it to alleviate mens fears and quiet their minds absque hoc that they did it aliter vel alio modo Surely my Lord this is no sort of excuse in the world nor is it capable of any They have owned the thing but they have excused it in the manner of doing thereof And I may venture to say the Traverse is impertinent Suppose a Man be Indicted for publishing a Libel and the owns the Fact but doth traverse absque hoc that he did it malitiose or with an intent to defame that surely would be an idle thing for those are constructions that the Law puts upon it and are not matters traversable or to be put in issue But if the Fact be done the Law says 't is maliciously done and with such an intention Therefore a confession of the Fact is a confession of all the consequences that the Law puts upon the Fact My Lord this can amount to no less than the forfeiture of their Charter not only for the greatness of the Offence but because otherwise the Law would be unequal for if this were the Case of a private common Person he must be fined and imprisoned during the Kings pleasure as was the Case of Harrison in I.Cr. 503. for words spoken of Iustice Hutton Now my Lord a Corporation is not capable of suffering this Imprisonment and therefore 't is a much greater Offence in them as the Body is greater than any particular Member And then that which is a greater Offence would have a less Punishment if the Charter it self were not forfeited than it would if a particular Person were punished And give me leave to apply here the Reason of the Earl of Gloucester's Case that I cited before Quia Dominus Libertatis puniretur in eo quo deliquit So they shall lose their Charter for the abuse of that Power that was entrusted with them by their
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
9. 21 E. 4. 13. Co. 10 Rep. Sutton's Hospital Case That Corporations have béen Dissolv'd 1 Inst 13. 2 Inst 431 432. Co. 3 Rep. Dean and Chapt. de Norwich's Case That Corporations may be surrendred is plain from the Cases of Heyward and Fulcher Jones Palm 506. That the Causes for which Franchises may be seized are the same for which they are forfeit as for Non-user or Abuser And therefore Forfeiture and Seizure alike For Contempt of the King the Court may seize the Liberties of a Town 2 E. 4. 5. Case de Bayliffs de Reading 15 E. 4. 6. Seizure of Liberties for not Appearance and if not replevyed the same Eyre they are forfeit This shews that the same default that gives Seizure gives Forfeiture A Seizure by award of a Court before Iudgment is but quousque and the Court may restore but a Seizure after Iudgment is final and the Court then cannot grant Restitution 5 E. 4. 7. Where the Liberty is usurp'd and gain'd by Tort there the Iudgment must be an Ouster But otherwise where the Liberty was once of right but forfeited by Abuser there the King shall have it Case de New Malton Iudgment there was only a Seizure Case de Cusack Iudgment fuit penitus excludatur because usurp'd and no title By the Seizure the King is in the possession Sir G. Reynel's Case Co. Rep. And the Corporation cannot act during such Seizure for they have not their Mayor or Officers by which they can act and that is the reason they Petition to be restored in E. 1. ad pristinum Statum Rolls Abridgment Prerog 204. 2 E. 4. 27. 1 Institutes 253. 15 H. 3. Rot. Cl. Memb. 2. Village of Hereford seized into the Kings hands quousque c. By the Seizure the Corporation est Civiliter mortua and cannot act Corporations are instituted for a particular end viz. For good Government and Order They are as an Office erected and the Actors Officers to that purpose All Offices have a Condition in Law incident to them to be forfeited for abuser or mal-user Co. Rep. 8. 44. Co. Rep. 9. Earl of Shrewsburies Case And by the same Law Corporations forfeit for mal-user or abuser No difference betwixt Corporations aggregate or sole and the one forfeit for the same mis-user or abuser as the other And as to the Mischiefs that will ensue if the Law otherwise It is no answer That the persons offending may be punished in their private Capacity For if they still remain a Corporation they may Assemble Consult raise Mony and Men to the hazard and danger of the King and his Government and still continue a form'd Body too much thereby advantaged to serve such purpose Presidents and Cases of Forfeiture Case of Sandwich Pasch 3. E. 1. Rot. 55. upon an Information the Iudgment was Consideratum fuit per Dominum Regem Consilium Domini Regis in Parliamento quod Majoritas Libertas de Sandwich capiatur in Manus Regis Villa de Cambridge Inst 4. 428. M. 8 R. 2. Plea to the Iurisdiction rejected and Iudgment that their Liberties shall be seized Ryly placita Parliamenti 277. Iudgment that the Liberties of Winchester shall be seized quousque and restored again Mich. 18 E. 3. Rot. 162. in B. R. Iudgment against Ipswich that the Custody thereof shall be seized 2 Rolls Prerog 204. divers Seizures 1 Crook 252. it is there cited that the Liberties of the Town of Norwich were seized 27 H. 6. for not suppressing a riotous Assembly there F. Avowry 129. Iter of Lancaster Quo Warranto against Northampton Iudgment of Seizure quousque c. for mis-pleading 2 H. 7. fol. 11. Mich. 15 Car. 1. B. R. Quo Warranto against the Town of Berkhamsted but no Iudgment entred Usual Proceedings in Eyre to Seize Fine and Restore Rast Entries 540. Seizure of a Leet for not having a Tumbrell And all the several Cases and the very Acts cited that prove Seizures of a Corporation prove also that they may forfeit V. That the Acts of the Common Council are the Acts of the Corporation Corporations have by their Charters Prescription or Custom Common Councils to assemble advise and consent they are as Delegates for the rest of the Body they are the Active Corporation they make By-laws and dispose of the Lands and Concerns of the Corporation in them the Corporation acts 9 H. 6. 3. 5 H. 7. 26. 48 E. 3. 17. 1 Cr. 540. Warren's Case Rolls 2 A br 456. Tit. Restitution Obiect That the Stat. 1 E. 3. insisted on by the other side whereby they would have it that the Liberties of the City should not be seized for any the Miscarriage of the Officers Resp In answere to this Objection I. It is no Statute but only a Charter and that Charter not granted to the Mayor Aldermen and Commonalty but only Civibus London II. That it extends not to this Case for by the words Officers and Ministers the Mayor Sheriffs and Aldermen being ordinary Officers of the City by whom the Kings Writs and Precepts are executed are the Persons intended But this extends not to the Mayor Aldermen and Common Council which are the visible and active Corporation Stat. 38. E. 3. c. 10. explaineth this to be so for that is express Mayor Aldermen and Sheriffs and that the Liberties of the City shall not be seized for their miscarriage till their third Default But the Stat. 1 H. 4. c. 15. repeals the former Stat. of 28 E. 3. also the Stat. 1 E. 3. if it were any puts the City of London into the same condition with other Cities VI. That the Facts and Crimes charged in the Replication are Forfeitures They are Offences of a high Nature To oppress the Subject by raising Mony for their own private Gain is quite contrary to the ends of their being a Corporation which is the good Government and Preservation of the Subject but to make use of this Power to oppress and raise Mony for private benefit is a great Abuse of their Authority and Franchase And they cannot excuse themselves as for a Toll For Toll cannot be claimed except it be a Sum certain it must be some little petit Sum claimed for Toll These Sums are too great and unreasonable to be claimed for Toll The Statute of H. 7. that gives a Forfeiture of 40 l. for using an unlawful By-law did not alter the Law that was before It gives a new and further Penalty but takes not away the old And as to the Custom alledged for assertaining Tolls Duties or Sums reasonable to be paid such Custom is unreasonable for the Vncertainty and the Nature of it VI. The Petition is malicious and apparently Seditious stiring up the People to a drinke of the King and his Government Stat 3 E. 6. c. 1. provides against derogating from or depraving the Book of Common Prayer 1 Cr. 223. Sir William Marsham versus Budges against Standalizing a Iustice of Peace Much more is it to deprave Libel
should be exhibited to the King in the Name of the Mayor Aldermen and Commons in Common Council assembled and set forth the Petition in the Name of the Mayor Aldermen and Commons in Common Council assembled in haec verba Wherein among other things it is contained That they were extremely surprised at the late Prorogation whereby the Prosecution of the publick Iustice of the Kingdom and the making provisions necessary for preserving the King's Person and his Protestant Subjects received Interruption And did farther agree and order That that Petition after it had béen presented should be printed which was so ordered with intent That false Reports concerning the Petition might be prevented The Enemies of the King and the Conspirators from procéeding in the Conspiracy deterred The Troubles in the minds of the Citizens alleviated and the Citizens know what had béen done upon their Petition That the Petition was delivered to the King and afterwards printed That this is the same Petition and Printing in the Replication mentioned absque hoc that any Petition of or concerning the Prorogation of the Parliament was made ordered published or printed in any other manner than they have alleadged as the Attorney General supposeth To this part of the Rejoinder Mr. Attorney hath demurred generally by the Demurrer the Fact alleadged in the Replication is admitted to be true And it is true that there are no words that are written or spoken but are subject to various Constructions But I take it that no words whether written or spoken ought to be taken in an ill sense if they may reasonably be taken in a better Nemo prefumitur esse malus and therefore the words must stand as they are penn'd and having first expressed their Feats and next their Hopes from the King and Parliaments procéedings in Trial of those that were Impeached and making Laws for their Security and how they were surprized at the Prorogation then they say That by that Prorogation the prosecution of the publick Iustice of this Kingdom and the making necessary provisions for the preservation of the King and his Protestant Subjects had received Interruption It is mentioned only as a consequence of the Prorogation 't is not said or expressed that the King did interrupt for I think there is great difference betwixt the one sort of expression and the other An ill Consequence may attend a good and commendable and most necessary Act but no Consequences can make an ill Act good and therefore the expressing the Consequence doth not necessarily condemn or declare the Act to be an ill Act. Suppose that in the time of the great Plague a man had had a Suit in Westminster-Hall wherein all his Estate had béen concerned and had said or writ That by the adjournment of the Terms by the King the Procéedings of the Courts of Iustice in his Suit had received an Interruption had these words béen punishable The adjournment was then the most necessary and commendable Act that could be for the preservation of the King's Subjects in that raging Pestilence and the Act it self being so good and necessary though there were such Consequence as to that particular Suit the writing or saying that it had such a Consequence such an Interruption did not I conceive condemn judge declare or express the Act to be ill Suppose a man had had a Bill depending in that Parliament to be Enacted for the enabling him to sell his Land to pay his Debts to free him from a Gaol Or suppose that some one of the Lords impeached in that Parliament had made a Petition for the Sitting of the Parliament and had therein expressed as a reason and ground of his Petition the like words as in this Petition What would the Court have judged of it are not the Cases much the same if they are there will be no distinction of persons in Iudgment I am sure there ought nor Perhaps when this Petition was made there might be too much heat in the minds of men and it is true that heat encreaseth heat and fire kindles fire 't is time for all sorts to grow cool and temperate and to weigh and consider we are or should be considering men This Petition was made Nemine contradicente and undoubtedly among such a number as the Common Council there must be men of variety of Tempers and Dispositions But for the greatest number of the Aldermen and Common Council think of them we know the men many of them can we imagine that they had either the least ill thought or meaning towards the King his Person or Government in this Petition or the printing it And as for the printing it that my Lord stands upon the same Reasons and Grounds For if there be nothing ill or unlawfull in it contained then the printing and publishing of that which contains nothing ill or unlawfull is not as I conceive ill or unlawfull Printing is but a more expeditious way of Writing and is good or bad as the matter printed is good or bad The Defendants in their Rejoinder have set forth their whole case the Reasons and Grounds of what the Common Council did and the manner and intent of their doing it all which Fact cannot be denied to be true but is now confessed by the Demurrer It hath not nor can be said but it is well pleaded and might have been traversed and denied if not true But it is confessed by the Demurrer to be true and therefore that must be taken to be the Fact and not as alleadged in the Replication and then so taken I submit it to your Iudgment 3. But the next thing considerable is Whether supposing and admitting that if done by the Body Politick it had been a Miscarriage or a Crime whether not being done by the Body Politick nor under the Common Seal but by Common Council whether thereby the Being of the Corporation shall be forfeit A Common Council in Corporations is generally a select number of the Body corporate constituted to advise and assist the Corporation in their ordinary affairs and business There is no certain Rule nor Measure of their Power wherein all the Common Councils agree In some Corporations the Common Council have greater authority in some less according to the several authorities by the respective Charters where the Corporations are by Charters or by Custome or Vsage where the Corporations are by Prescriptions But in all they are a subservient number of Men constituted and authorised for particular ends and purposes And in this case I think the Court can take notice of the Common Council no otherwise than upon the Record they appear to be The Replication doth not say what they are but would go in the dark by intention and presumption the best way and method to arbitrary Determination The Rejoinder saith that the Citizens and Freemen are a great number fifty thousand and more That there hath been time out of mind a Common Council consisting of the Mayor and Aldermen for
I Have perused this Report and do License George Grafton to Print the same Jan. 23. 1689 90. Hen. Pollexfen THE CASE OF THE Quo Warranto Against the City of LONDON WHEREIN The JUDGMENT in that CASE and the ARGUMENTS in LAW touching the FORFEITURES and SURRENDERS of CHARTERS are Reported LONDON Printed for George Grafton near Temple-Bar in Fleet-street 1690. Mich. 33. Car. II. in B. R. rot 137. Sir Robert Sawyer Knight His Majesty's Attorny General AGAINST The Lord Mayor and Commonalty and Citizens of London The Information in Nature of a Quo Warranto sets forth THAT the Mayor and Commonalty and Citizens of the City of London by the space of a Month then last past and more used and yet do claim to have and use without any Lawful Warrant or Regal Grant within the City of London aforesaid and the Liberties and Priviledges of the same City The Liberties and Priviledges following viz. I. To be of themselves a Body Corporate and Politique by the Name of Mayor and Commonalty and Citizens of the City of London II. To have Sheriffs Civitat Com' London Com. Midd ' and to name elect make and constitute them III. That the Mayor and Aldermen of the said City should be Justices of the Peace and hold Sessions of the Peace All which Liberties Priviledges and Franchises the said Mayor and Commonalty and Citizens of London upon the King did by the space aforesaid Usurp and Yet do Usurp THE Mayor and Commonalty and Citizens they appear by their Attorney and Plead Plea I. As to their being a Body Politique and Corporate they prescribe and say 1. That the City of London is and time out of mind hath been an Antient City and that the Citizens of that City are and by all that time have been a Body Corporate and Politique by Name of Mayor and Commonalty and Citizens of the City of London That in Magna Carta de Libertatib ' Angliae in the Parliament holden 9 Hen. 3. it was enacted quod Civitas London ' habeat Omnes Libertates suas antiquas Consuetudines suas That in the Parliament 1 E. 3. That King by his Charter De Assensu Prelatorum Comitum Baronum totius Communitatis Regni sui and by Authority of the same Parliament having recited that the same Citizens at the time of the making Magna Carta and also in the time of Edward the Confessor William the Conqueror and other his Progenitors had divers Liberties and Customs Wills and Grants by Authority aforesaid That the same Citizens shall have their Liberties according to Magna Carta And that for any Personal Trespass Alicujus Ministri ejusdem Civitatis Libertas Civitatis illius in manus ejusdem Domini Regis Ed. 3. vel heredum suorum non caperetur sed hujusmodi Minister prout qualitatem transgressionis puniretur They Plead also That in the Parliament holden 7 R. 2. Omnes Consuetudines Libertates Franchesia Privilegia Civitatis predict ' tunc Civibus Civitatis illius eorum Successoribus Licet usi non fuerint vel abusi fuerint Authoritate ejusdem Parliamenti ratificat ' fuerunt Then they Plead the Confirmations of several later Kings by their Charters as of King Henry VI. by his Charter Dated 26 Octob. 23 H. 6. King Edward IV. by his Charter Dated 9 Nov. 2 E. 4. King Henry VII by his Charter Dated 23 July 20 H. 7. King James I. by his Charter Dated 25 Sept. 6 Jac. 1. King Charles I. by his Charter Dated 18 Octob. 14 C. 1. King Charles II. by his Charter Dated 24 Jan. 15 C. 2. Ac eo Warranto they claim to be and are a Body Politique c. and traverse their Usurping upon the King II. As to the having electing making and constituting Sheriffs of London and Middlesex they Plead That they are and time out of mind were a Body Politique and Corporate as well by the Name of Mayor and Commonalty and Citizens quam per nomen Civium London And that King John by his Letters Patents under the Great Seal of England in Court produced dated 5 Julii Anno regni sui primo granted to the Citizens of London that they should have the electing making and constituting Sheriffs of London and Middlesex imperpetuum Then they plead this Liberty and Franchise confirmed to them by all the aforementioned Statutes and Charters ac eo Warranto they claim to make and constitute Sheriffs III. As to the Mayors and Aldermens being Justices of the Peace and holding Sessions they plead That the City is and time out of mind was an Antient City and County and the Citizens a Body Politique That King Charles the First by his Letters Patents Dated 18 Octob. 14. Car. I. Granted to the Mayor and Commonalty and Citizens of the City of London That the Mayor and Aldermen of London such of them as had been Mayors should be Justices of the Peace and should hold Sessions eo Warranto they claim to be Justices and hold Sessions TO this Plea the Attorney General replies Respons And as to the Mayor and Commonalty and Citizens of London being a Body Politique and Corporate First takes Issue that they never were a Body Corporate and for this puts himself upon the Country And then goes over and pleads That the Mayor Commonalty and Citizens assuming upon themselves to be a Body Politique and Corporate and by reason thereof to have Power and Authority to convocate and assemble and make Laws and Ordinances not contrary to the Laws of the Kingdom for the better Government of the City and Citizens and for preserving the Kings Peace Under colour and pretext thereof but respecting only their private gain and profit and against the Trust in a Body Corporate by the Laws of this Kingdom reposed assumed an unlawful and unjust Authority to levy Mony upon the Kings Subjects to their own proper use by colour of Laws and Ordinances by them de facto ordained and established And in prosecution and execution of such illegal and unjust Power and Authority by them Usurp'd 17th of Septemb. 26 Car. II. in their Common Council Assembled made constituted and published a certain Law by them de facto enacted for the levying of several Sums of Mony of all the Kings Subjects coming to the Publique Markets within the City to sell their Provisions viz. Of every Person for every Horse-load of Provisions into any publick Market within the said City brought to sell 2 d. per day For every Dosser of Provisions 6 d. per day For every Cart-load not drawn with more than Three Horses 4 d. per day If drawn with more than three Horses 6 d. per day And that these Sums of Mony should be paid to the use of the Mayor Commonalty and Citizens And if any refused to pay then to be removed from his Place in the Market And that by colour of this Law the Mayor Commonalty and Citizens for their own private Gain had Illegally by
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
should be forfeited not that it should be seized into the Kings hands only Now my Lord where all the Franchises of a Corporation are forfeited what is the Corporation Truly 't is nothing 't is but a Name a Corporation without a Power to act is nothing at all Indeed I do not find any Iudgment in a Quo Warranto of a Corporation being forfeited yet my Lord it doth not follow from thence that this cannot be by Law for many Quo Warranto's have been brought against London and other places too to out Corporations of their Franchises but it hath always ended in submission to the King and so they have been at quiet All the Quo Warranto's in Mr. Attorney Palmer's time after the Kings Restauration against the several Corporations they all submitted and yet that was to question the very being of their Corporations Now my Lord pray consider a little upon the Rule of Law It should séem very strange if a Corporation should neglect to come into Eyre or into the Kings Bench the same Term that a Quo Warranto is brought against them they must be outed of their Franchise for ever as 't is said 15 Ed. 4. 6 7. And yet when all the contempts and oppositions imaginable are found upon Record that this should not be a forfeiture that seems absurd that a Neglect in Eyre should do it but all the Oppressions and Offences in the World when found upon Record should not do it But my Lord the mischiefs that would follow from hence are very great How many Oppressions and Offences would be daily committed if every Corporation were a Franchise and Iurisdiction independent upon the Crown and the punishment truly of some particular Men for those Offences would not be adequate where the power of offending and misgoverning should still remain sure that were no adequate redress of such an inconvenience And to this purpose my Lord I shall humbly offer a Case and 't is that great Case betwéen the Earls of Gloucester and Hereford Hill ' 20. Ed. 1. in B. R. rot Wallie 14. 'T is likewise in Riley's Placita Parliamenti 83 86. The Case is this in short They both claimed the Liberty of Returna Brevium and they had incurred great contempts in refusing to obey the Kings Writs and Iudgment was given against them That the Liberty should be seized for this reason which I think will go a great way in this Case and for which I offer it Quia puniendus est Dominus Libertatis in eo quo deliquit I think my Lord as I said that will go a great way in this Case to shew the Reason of the Law My Lord If the granting of too many and too large Franchises were a mischief as certainly it was by Law and as appears by the Commons Petitions 21 Ed. 3. rot Parl. No. 17. where they pray That new and large Franchises may not be granted because it tended to the overthrowing the Common Law and great Oppression of the People And the Kings Answer was That care should be taken for the time to come I say then if this were such a mischief that there ought not to be granted new and large Franchises much more would it be a mischief if these Franchises should not be under the controul of the Law when they exercise such Oppression And so my Lord I shall leave that point for I think it will be pretty clear that a Corporation may forfeit their being of a Corporation 2. I shall next than consider whether the City of London be in any other plight than any other Corporations I think truly there is no difference at all Now this Question doth depend upon what they have set forth by their Plea And that is the confirmation of Magna Charta cap. 9. Civitas London habeat omnes libertates suas antiquas consuetudines suas And then their Act of 1 E. 3. upon which my Lord Coke in his 4 Inst 253. says that the Franchise of this City shall not for any Cause be seized into the Kings hands And then theirs of 7 R. 2. which says that the City shall enjoy its whole Liberties Licet usi vel abusi This is their Foundation upon which they would distinguish this City from all other Corporations Now as to these things I give these Answers First for Magna Charta that plainly is no more a confirmation to them than 't is to other Cities and Corporations For not only the City of London is named to have its ancient liberties and customs preserved but 't is likewise Omnes aliae Civitat ' c. And all Cities Burroughs and Towns and the Barons of Cinque Ports and all other Ports should have all their Liberties and Frée Customs So my Lord Coke agrées it in his Comment And in what he cites out of the Mirror of Justice and other ancient Authors of our Law they should enjoy their Franchises which they had right to by lawful title of the gift and confirmation of the King and which they had not forfeited by any abuse So that the Act which confirmed them did not purge former forfeitures much less did it license other abuses Then for their Acts of 1 E. 3. and 7 R. 2. I shall humbly offer this That as they are in Truth no Acts of Parliament at all so they will not concern this Question whatsoever my Lord Coke says concerning them But I shall give some instances before these Acts to shew that they never had such an unquestionable Power as they now dream of and then some instances in after times that there either were no such Acts or no such sense at least is to be put upon them as they have strained to make First it appears 15 E. 1. that the Franchise of the City of London was seized into the Kings hand and Johannes de Britton was made Custos Civitatis London who was no Freeman and this implies that the Franchise was seized into the Kings hands for they had a power to choose de seipsis by Charter from King John a Citizen to be a Mayor or chief Governour but here was another Governour appointed them Then Rot ' Pat ' 26 E. 1. Rex pro bono servicio Civit ' London ' reddit eis Civit ' suam London habend ' dict' Civibus ad volunt ' Regis Teste Rege So that both the City and all its Franchises were seized at that time for he restored the very City of London to the Citizens habend ' during his Will and Pleasure Thus my Lord it stood in the time of E. 1. Then in the time of E. 2. seized again 14 E. 2. memb 21. of the Pat ' Rolls in 21 Rex dimisit Civibus London ' Officium Major ' Civitat ' London ' 15 E. 2. Rex dedit licentiam eligendi Major ' London ' And in the second part of Pat ' Rolls 15 E. 2. m. 5. The King recites That whereas in the Fourtéenth year of his Reign he had
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
And then my Lord the Information is not quite so had but the Replication is worse first he takes Issue that we never were a Corporation at all and the next thing is if ever you were a Corporation you have ceased so to be because you have forfeited it so and so several years ago This is just then to put a common Case and I confess a very familiar one it is If I should being an Action against a man and when he hath pleaded I should by way of Replication set forth there never was any such man as the Defendant and take Issue upon it or if there were that he was dead Ten years ago And yet this is the substance of Mr. Attorneys Issue and his Replication My Lord the Authorities before cited in Palmer Cokes Entries Rolls and my Lord Hales Common-place-book are not all for I have some other that never saw the light in Print yet and that is the Case of the King against Bradwell and others Trin. 18. of this King A Quo Warranto was brought against them for usurping to be a Corporation or Company of Musitians it had been a strange thing if the Quo Warranto had been brought against that Corporation and then the Attorney General had said they were no Corporation nor never were there they did think best and fittest to go against Bradwell and the rest and that by name and only so not against the Body Corporate So in that Case of the Corporation of Worcester which was lately tryed before your Lordship in this Court When the Quo Warranto was brought against such men for usurping to be all Aldermen and Common Council-men if the Attorney General had once called them Common Council-men it had béen a great repugnancy for him afterwards to say that they were none or if they were that that priviledge of theirs was lost so long ago So in the Case of the Quo Warranto against the Bermudas Company it was against a Corporation and against particular persons by name both These things have béen considered and doubtless they have gone on in an ordinary way I must confess I was not privy to that particular Case but by the Report of that Case which I have seen I have been informed that the Corporation never appeared for they said 't is not sense for us to appear for it being a Question by what Warrant we are a Corporation it is not the supposing us a Corporation that do usurp but the particular persons that do usurp if it be at all usurped Now my Lord if that had been a regular Suit no doubt but there would have béen Iudgment against the Corporation which there was not And certainly the Replication of Forfeitures was not good against the Corporation but against the particular persons only All Mr. Solicitors Authorities for Seizing holâ—â—â—ue if the Corporation would never appear And what is the reason it should be brought against J. S. and J. N. but because Corporations do never appear in such a Case in regard it were not congruous they should appear for the Quo Warranto must intend it so That they were not a Corporation in being by implying a Forfeiture Then say I no Iudgment at all can be given upon this Score Non admittitur exceptio ejusdem rei cujus petitur dissolutio a man shall never be admitted to controvert that to be in being which he himself desires should be destroyed and so has allowed it to be Shall Mr. Attorney be admitted to deny the supposal of his own Writ and truly I think I might very well leave this part of the Case and this point to Mr. Attorney General himself for if he will have any thing to be answered by us he must maintain us to be a Corporation capable of answering and so I have reason to expect that against his own Replication he will be pleased to support the being of our Corporation and so dismiss as hence II. My Lord I have done with this Point and now I come to the Replication which indéed is a kind of a new Quo Warranto for it brings in new matter and therein they do charge two Forfeitures the one is by reason of the abuse of the Market the other is by reason of the Petition My Lord I shall answer both of them That we were seized of the Market that is pleaded and that is agréed That we were seized of Tolls and were to have reasonable Tolls that is agréed too that there is a custom in London to have Common Councils and that this was by Common Council is agreed all this is agréed by the Demurrer that this Toll though by the way I must confess and will agrée with Mr. Sollicitor that it is not properly to be called a Toll for a Toll is only for Goods sold and when they are sold in recompense for the Officers attendance for the testification of the Contracts and the entring them in their Books But I agrée this is not such a Duty for Goods bought and sold but it is for the accomodation of Persons repairing thereunto for their Stalls and if I would call it by any particular Word I had rather call it Stallage than any thing else It is for those Accomodations which we have béen at vast charge in preparing and providing and for the maintenance of requisite Officers and for the cleansing of the Markets Now Mr. Sollicitor objects That we cannot prescribe for a Toll uncertain and he cites the Case of Murage and the like and so I must confess where Murage is granted 't is commonly a thing certain so is Pontage and the like but I believe if I had thought that it would have béen a point insisted upon I could have brought you Instances where Murage and such like things have béen granted in general and they would have béen ancient ones indéed And there is a necessity for it in some cases for when a Town will repair its Walls the charge may be greater or less as the particular Accidents may be and so perhaps a certain Duty would not do it When a Wall is to be built there the Duty may be certain but when it is built to kéep it in Repair the Duty of Murage may be uncertain according to the charge and if the case be not so it will come little to our purpose which is a Duty upon a great and a continuing charge I will name him some things that he must agrée and I know he will grant are uncertain as Pickage and Stallage which are Duties for picking in my Earth to dig holes for the Posts of Stalls to be fixed in now there can never be nor ever was any circumscribing in those matters for circumstances in every of those cases must govern it If I have occasion for my Stall to use a foot of ground one sort of Sum is necessary if ten feet another Sum it ought to be equal indéed but it could never be good if it were limited to a
be judged by the discretion of the Iustices upon the true state of the Case before them Now this Case must have all its Circumstances stated and agréed by Demurrer or found by Verdict And so is 4 Rep. 27. b. and Hobart 135. and 174. as in the Case of Copyholders Fines the quality and yearly value of the Land must appear or else there cannot be Iudgment whether it be reasonable or no. In the 13th Report fol. 3. Croke Car. 196. where the Question was Whether the Lord of a Mannor might assess two years and an half value of Copyhold Lands according to the Rack-Rents for a Fine upon Surrender and Admittance and upon non-payment to enter for the Forfeiture as suppose Land it be rented at 20 l. a year here is 50 l. demanded for admittance there it appeared judicially that it was unreasonable and so it was adjudged because the value was certain But who can here say whether the providing of Markets cost 5 s. or 500 l. it is that estimable Perhaps we have over-bought all these Tolls that they call unreasonable we over it to be reasonable the Demurrer agrees it to be so and you must intend it to be so unless the contrary be set forth clearly in its circumstances for he that will have a Forfeiture must shew the circumstances to make it out My Lord Another thing is this to answer Mr. Solicitor in that point I say an unreasonable By-law is no reasonable cause or colour for forfeiting a Corporation admitting it to be unreasonable though I grant it not My Lord Hobart in Norris Staps Case Hob. 211. says that though power to make Laws is given by special Clauses in all Incorporations yet it is needless for that is included by Law in the very Act of Incorporating For as reason is given for the natural Body for the governing of it so Bodies Corporate must have Laws as a Politick Reason to govern them Reason is a faculty in them as 't is in a man and may err and therefore says he if the King do grant Letters Patents of Incorporation to persons and he doth thereby make Ordinances and By-laws himself they are subject to the same construction and rule of Law as if they were made afterwards by the Corporation For the King can no more make an unreasonable By-law than a Corporation but if the King do shall that affect the Corporation and make the Corporation void by way of repugnancy or an instantaneous breach of Condition no it shall not And therefore as they may receive unreasonable Rules from the King without defeating of the Corporation or having their being thereby vacated so they may make unreasonable By-laws without the same danger of destroying the Corporation The cases are very many wherein By-laws have been judged unreasonable the truth of it is there is a great misfortune in the perusing and making of those By-laws by some means or other there is something discerned that still proves an Exception to it as we see in the Case of the Carmen and the Woodmongers their By-law was made and re-made and corrected again and again before it would be made to hold Water in this Court. So in the Taylors of Ipswich's Case and Bradnox's Case which was here lately All these have béen adjudged void but what then In all these Cases it was never said hereby your Corporation is destroyed you have erred in making a By-law and therefore you have lost your being of a Corporation Besides if there were but a colour for it and it were any thing tollerable surely that were enough to make us excusable in such a matter If it has béen received as we agrée it has the Officers are Trespassers every individual of them are suable and any man may bring his Action against them But they that come to the Market think not fit to complain if they did not like the Market they would not come at all and if they did not like the Payment they would not come neither and there is no levying of any thing unless they do come Now my Lord I will admit the levying and the receiving and yet I say this is no forfeiture for here is a mistake of Law or a mistake of Fact by colour whereof Mony is received This by no means will work a Forfeiture of a Corporation for at that rate every Penalty that has béen levyed by a By-law will be adjudged a levying of Mony without Law and so forfeit the Corporation which has not béen done in other cases of By-laws and those much worse than this because most of those By-laws were made for levying Mony upon Men for exercising a Trade and 't is much more to say that you should levy such Sums of Mony upon every stroke of honest industry whereby a Man gets his Livelyhood than that you shall pay so much for your accomodation in my ground for the better vending your Goods This hath béen held good in some cases but in others it hath béen held naught and this hath all béen received and levyed to the use of the City too and so 't is a levying of mony whereby they have a great advantage nay 't is worse still because it is imposed by force and recovered by force but here 't is a voluntary Penalty no force no compulsion only the being removed from their Standings no other Penalty no Imprisonment or the like but if you do not like the conditions you may be gone I desire you to walk out of this Market if you don 't like the price of the Provisions and to be gone from the Stall if you don 't like the price of the Standing We were not bound to provide these Stalls for you but having provided them if you don 't like them you may leave them but here is other cases the man is imprisoned and sued by Action for the Penalty here at any time if you don 't like your may be gone My Lord I am very confident that if this be so that all monies levyed by a Corporation without Law are forfeitures or where the Law is mistaken then I dare boldly affirm that we never were a Corporation two months since London was London but by vertue of some old sléeping By-law or other that has béen set on foot monies have béen levyed which perhaps will not be in strictness allowed good And if all these had béen Forfeitures we had béen in a strange condition not one month or two should pass over us but we had forfeited it and never can there be perhaps a month to the end of the World but we should still be forfeiting And what is said of us may be said of any other Corporation that happens to make By-laws And I am sure in former times there were monies levyed with a witness I mean not the late times of Rebellion only but an hundred years ago strange exorbitances of that nature were committed by London and other Corporations then they went by way of
these Counsels or the King and his Parliament are interrupted this is not done To make such an high Crime of this I do not understand I would not be thought to speak any thing to justifie that which is really a Crime but this is that I say 'T is not in Law unlawful for us to petition the King or address to him But my Lord to take off the edge of this business I shall beg leave to read to your Lordship a Spéech of the Kings made the 6th of March following and therein there are these Words The further Prosecution of the Plot. My Lord let any man read and spell and see how in substance the Words in our Petition differ from the Words of the King making those Laws necessary for the security of himself and the Kingdom and this spoken the 6th of March when this very Petition now complained of was presented in January or February before and there was no Parliament between No man will say that there were Laws sufficient for the security of the King and Kingdom when the King himself speaks of the necessity of making such ones So then those Laws that were preparing received an interruption The Lords were not tryed is not that an interruption of Iustice since they could be tryed no where else as must be granted and the King recommends it to them as not done but necessary to be done So the King said before and so 't is implyed here There is no such thing said in the Petition That the King did interrupt Justice and the proceedings of the Parliament 'T is an Inference and a Consequence made by Wit and Art not that the King did interrupt or intend to interrupt Iustice but it says by the Prorogation of the Parliament the publick Justice received an Interruption My Lord Suppose at that time there had béen a Pestilence here and the King had been as much resolved to meet his two Houses as they him but by reason of the Pestilence he were necessitated and forced to make a Prorogation Then there comes such a Petition from the City and says That by reason of this Prorogation those Bills that were depending did not pass and the publick Iustice received an Interruption What is the Offence of this 'T is all true If there be Bills depending and Impeachments that can no other where be tryed they do receive interruption by a Prorogation Can any man say this is false The charge in the Replication is That we did falsly and maliciously say what that which is true and that which the King had said before and that which the Lords and Commons said after him That till those things were done they were not safe and those things as yet were not done My Lord There is this further in it the Petition is set forth in haec verba and therefore I may take any thing out of it to explain it and restore it to it self for this indeed is a very restrained construction of the Petition It says when this interruption by the Prorogation was receiv'd That the King for urgent causes and very good reasons did Prorogue the Parliament It is his Prerogative to do so and God forbid but he should have it I think without doubt we should be more at a loss for want of that Prerogative than we can by the use of it 't is mine and I believe every good mans Opinion that that Prerogative is very necessary and profitable for us all but it is the consequence of it that this interruption of Iustice is received nay we are so far from saying that the King did interrupt Iustice or intending it that we say we do hope the Kings gracious intentions were only to make way for the better concurrence of his Majesty and his Parliament The King does for great causes and best known to himself who has the Prerogative Prorogue the Parliament whereby as a meer consequence not as the Kings intention the publick Justice is interrupted Nay this we affirm was with a good intention in the King that he might the better be inabled to concur with his Parliament as is set forth in the Petition Can there be any thing more properly said 'T is the greatest justification of the Prorogation that can be The King has prorogued the Parliament What to do Why Iustice hath in view received an Interruption but not in the intention of the King We know what the meaning of it is and so we set forth in our very Petition it is to gain time that he may the better concur with his Parliament 'T is a great commendation of the Kings purpose instead of charging him with Injustice that he did resolve to concur with his Parliament for such ends and accordingly did Prorogue the Parliament Now the Attorney General hath put in that it was ea Intentione there is the sting of the business to put in those words to make that which we may lawfully speak of it self to be an Offence but truly that signifies just nothing It can never hurt a thing that is true it has great Authority in it if it be applyed to a thing that is unlawful but if in substance it be true and the thing it self justifiable those Words make nothing in the Case and I think I néed not argue that point but refer my self to the great Case that was in Westminster-Hall and that is the Reversal of the Iudgment given in this Court against my Lord Hollis which was a Reversal in Parliament and is Printed and the last Impression of Mr. Iustice Coke's Reports by order of Parliament and there they explode all the notion of ea intentione and this business A man speaks words that he might speak in Parliament though I know not whether he might or no but the great thing is If words that in themselves are tollerable to be spoken be spoken you shall not come and say they were spoken with an ill intention though as I shall shew by and by this hath a kind of Fatality in it and that is this That it is done with an ill mind by a Corporation that hath no mind at all Mr. Attorney General Just now you said it had a mind and Reason was its mind Mr. Recorder I said as my Lord Hobart says that a By-law to it is a mind as reason is to a man but it hath no moral mind My Lord then I say the Citizens of London were indéed at that time under great consternation by reason of the Conspiracies that had béen discovered in Parliament and in the Courts of Iustice and it had béen declared by the late Lord Chancellor at the Tryal of the Lord Stafford which your Lordship may very well remember That London was burnt by the Papists and therefore 't was no wonder that they were desirous that themselves and the Kingdom should be put into great security against those Enemies This my Lord I confess is a tender point and I would not speak a word in 't without
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
Iudgment for the King The Iudgment must have two things in it 1. To damn the Corporation Quod penitus extinguatur excludatur from being a Corporation for the future for being wrongfully usurped it cannot be continued A Iudgment to continue Wrong and Vsurpation can never be a right Iudgment 2. A Fine to the King for the usurping it for the time past This Iudgment may and ought to be given where the Information is against particular Persons for usurping upon themselves to be a Corporation and they shall be fined and imprisoned but this cannot be where the Information is against the Body Politick for by the Iudgment the Body Politick is extinguished and dissolved and no Fine can be imposed upon that which is not So that hereby the King must lose his Fine which the particular Persons usurping ought to pay and the Law is agreeable always to it self and the means answerable to the end I suppose no man will affirm that where a Suit or Iudgment is against a Corporation that the Fine or Execution shall be against all or any particular Member For the Precedents and Authorities in this point 1. I do agree that there be Precedents in the Crown Office of Quo Warranto's brought against Corporations in such manner as this is brought for usurping to be a Corporation and to claim divers other Liberties Quo Warranto against the Bailiffs and Burgesses of Stratford P. 2 El. r. 1. for claiming to be a Corporation and to have divers Liberties and Franchises thereupon a Plea put in and a confession of their Claim by the King's Attorney The like against the Corporation of Reading the like Plea and confession M. 3 4 El. r. 4. the very next Term after the Information filed Against the Corporation of Horsham a Plea and confesson by the Attorney H. 14 Jac. r. 37. The like against the Corporation of Dover but nothing done upon it besides Plea put in H. 19 Jac. r. 26. H. 20 Jac. The like against Bath a Claim put in and confessed H. 20 Jac. r. 58. The like against Brackley and a Noli prosequi T. 3 C. 1. r. 22. The like against Baston a Claim put in and confessed The like against New Sarum Imparlance and nothing more upon it T. 2 C. 1. r. 47. T. 6 Car. 1. r. 43. The like against Bridgport Claim and Confession M. 2 C. 1. r. 36. The like against Biddeford a Claim and Noli prosequi The like against Witcomb they plead themselves a Corporation by another Name M. 8 C. 1. r. 42. and traverse the Name in the Information nothing more on the Roll. And it is probable there may be more like these but if of any authority they are for me and not against me 1. For that they all being for claiming other Liberties as well as to be a Corporation and being good and sufficient as to the other Liberties and Privileges that the Corporation claims though insufficient for this of claiming to be a Corporation they must be proceeded upon if the Attorney pleaseth But is any to be found where only the claiming to be a Body Politick and nothing else or if other things questioned yet only proceeded in as to this particular of claiming to be a Body Politick as in this Case That will be like 2. In all these nothing is done a Claim or Plea put in and that confessed or Non pross or not proceeded upon to Iudgment Perhaps not proceeded in because insufficient and so are Authorities for me For there being so many of these which are either Non pross or not proceeded in perhaps the Reason might be because insufficient in the Law as to the Corporation and so are Authorities for me in this Case But one there is found Quo Warranto vers Bailiffs and Burgesses of New Malton in Yorkshire T. 6 Jac. r. 3. Quo Warranto they claim divers Liberties as Courts Markets and others and amongst the rest to be a Body Politick They put in a Plea and make their Claim by Prescription Issue 's joined and tried by Nisi prius at York and found against the Corporation and a Iudgment entred Quod Libertat ' Franchesii predict ' in manus Domini Regis capiantur seisiantur quod Ballivi Burgenses capiant ' ad satisfaciend ' Dom ' Reg ' pro Fine suo pro Usurpacion ' Libertat ' Franchesii predict ' There is no mention of this Case in any Book or Report as far as I can learn so that this passed sub silentio Next how can this Iudgment be good 1. How can that be a right and lawfull Iudgment which shall be given for the continuing a thing that is by the very Iudgment adjudged to be unlawfully usurped and a Fine for it it is directly oppositum in Objecto 2. How can the Corporation be seized into the King's hands Extinguatur excludatur is proper the Corporation cannot be in the King 3. How could the Bailiffs and Burgesses be fined when they were vanished and gone there is no Corporation in being that which is laid upon a Corporation cannot be levied upon the particular Members I have made enquiry after this Borough of New Malton it is a small Borough within the Manour of the Ancestours of my Lord Eure it did anciently send Burgesses to Parliament but from the time of King Ed. 1. to the beginning of the Long Parliament 1640. it sent none then upon Petition a Writ ordered and they then and ever since have chosen Burgesses my Lord Eure being Lord of the Manour and offended with them did prosecute this Quo Warranto and they having neither Lands Revenues or Estates to defend themselves he easily prevailed they never in truth being incorporate nor having any Charter But that which I give for answer to these Precedents is 1. They are all where not only the being of the Corporation but also divers other Liberties were in question so that the Informations were good in part and not worth the while to question whether good as to that part of their being a Corporation The Fine upon them for usurping the other Liberties would have been more than they could bear or pay 2. That this is but one Iudgment and in a case of a small Borough and that Iudgment as entred not agreeable but inconsistent with the Rules of Law or Reason The Body Politick could not be feised into the King's Hands but whenever a Iudgment is given for the King for a Liberty which is usurped or extinct in the Crown The Iudgment must be quod extinguatur and that the Person that claimed them deinceps Libertat ' Franchesiis predict ' nullatenus intromittat ' sed ab usu earund ' a modo omnino cessat quodque the Person that used them pro usurpacion ' Libertat ' Franch predict ' super Dominum Regem capiat ' ad respondendum dict' Dom ' Reg ' de Fine
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
is by waving or relinquishing one and chusing the other and therefore not to have or use all together and at once as is done in this case The King shall be bound by one Issue 9 H. 4. 5. he shall not have divers So that as this Replication is at the same time simul semel to the same matter to take Issue that we were not a Corporation time out of mind and to plead two matters of Fact for Forfeiture is the first attempt that ever was of this kind and in its consequence confounding the right of the Subject and leaves him perhaps only but a colour of Law but most difficult if not impossible by it to be defended let his Right be what it will if Issues and Pleas without number may be by the King's Attorney joined and pleaded and the Subject must answer the very charge besides will undoe the Subject and wrest him out of his Estate by the Law that should preserve him This point if I mistake not will deserve consideration if it be new and the first project for so I beg leave to call it of its kind for I know no Book or Instance of the like unwarrantable by old Laws and Rules of Pleading The old Laws and ways are good and safe Eventos varios Res nova semper habet Perhaps the consequence and mischiefs attending this way of joining Issue and at the same time pleading over as many Pleas as Mr. Attorney pleaseth are as great as any other in this case and not less to be minded or regarded As of the one side great are the King's Prerogatives and most necessary to be preserved and maintained so it cannot be denied but that the Law hath set Limits and bounds which must be kept and observed in pleading which is the Method and Mean of preserving and determining Rights without which no man can be preserved by the Law But supposing that several Causes or Forfeitures may be assigned yet they must be all Facts done at the same time or they confound one the other for if the first Fact was a Forfeiture thereby the Corporation was determined and at an end and the subsequent could not be the Act of the true lawfull Corporation for that was forfeited determined and gone by the precedent Forfeiture And if so that it was forfeited and gone by the precedent Act viz. the making the Ordinance Septemb. 17. 26 C. 2. Then how could it act and forfeit it self six years after in the Year Thirty two This seems impossible But to avoid this Mr. Attorney in his Argument doth hold That though the Act be a Forfeiture yet till there be a Iudgment or something on Record to determine the Corporation and in this case the Iudgment to be given shall doe that Work till such Iudgment the Corporation remains Then taking it as Mr. Attorney will have it and as the truth is supposing a Forfeiture untill that Forfeiture appear on Record or that there be some Office or Inquisition that finds it and that return'd and on Record were it of any Estate in Lands Tenements Hereditaments or Offices it is not determined or vested in the King but continues This is quite contrary and contradictory to all that you have done and the very Foundation of this Quo Warranto for if you admit as then you do that the Forfeiture ipso facto did not determine but that it must be this Quo Warranto or Iudgment upon it that must determine the Corporation and that the Corporation notwithstanding such Act was or is in being then they have not usurped upon the King they are the same Corporation they were they have the same power to act they had they have the same Warrant and Right they had only subject to a Iudgment against them that may be given hereafter for a Fact already past for since that an Vsurpation is a sortious and wrongfull using a Liberty or Franchise upon the King without lawfull Authority Then Supposing such an Act of Forfeiture doth not ipso Facto determine or dissolve but a Iudgment or some other Act of Record must first be had before such dissolution then till such Iudgment or Act of Record they are lawfully a Corporation in being and their lawfull Warrant remains and they did not nor could so long usurp their Being and then hereby is your own Information destroyed and abated For there you say that they did by the space of a month without any Warrant use and usurp the Liberty to be a Corporation But hereby you grant that it was not used unlawfully nor usurped but notwithstanding the Forfeiture the Corporation lawfully continued unless there had been some Iudgment or other Act on Record to determine it This I rest upon as impossible to be avoided Is it possible that a Corporation or Body Politick can at the same time be lawfully and rightfully such and not lawfully and rightfully such Can right and wrong be the same Can the same thing rightfully be or have its Being and at the same time not rightfully be or have its being Can we possibly be at the same time viz. the time mentioned in the Information a lawfull Corporation and yet an usurped or unlawfull Corporation Could we then have a lawfull and rightfull Authority to be a Corporation and at the same time have no lawfull or rightfull authority to be so These seem to be contradictions and if so are the most difficult of all things to be believed or imposed therefore to be plain in this matter either tell us that we are yet till Iudgment a Corporation or Body Politick lawfully and rightfully or not If you say we are then as yet we are no unlawfull Corporation nor have usurped to be one as in your Information and Replication you have alleadged We have not then unlawfully taken upon us to be a Corporation and therefore cannot have Iudgment against us or be fined for having or being that which we lawfully have or be as you now admit we are consequently you must go some other way you have destroyed your own Information and can have no Iudgment upon it But perhaps this concession of Mr. Attorney that the old and lawfull Corporation and Body Politick is still in being and shall so continue till by Iudgment or Matter on Record determined may only be some sudden thoughts for not only the Matter but the whole Proceedings in this Suit being at least unexperienced and perhaps much out of practice it might easily happen that in an hasty Proceedings all things might not be thought on nor all the Objections or Inconveniencies foreseen and perhaps the consequence of the Position that a Miscarriage or doing an unlawfull Act should ipso facto forfeit the Body Politick or Corporation might make a man start and cast about how to avoid it and flying from one danger run into another These are things ordinarily happening and perhaps have in this case happened and were the cause of this confession that the old
that this is such I hope most plainly to shew in the distinguishing the different nature of Franchises which I shall doe presently only taking in my way their next Reason that they offer and answer both together which is Obj. 3. That a Corporation is a Franchise that it commenceth by Grant and therefore Forfeitable and Surrenderable as other Franchises are and if they be Surrenderable then also are they Forfeitable Resp I do agrée that Franchise is a large word it is of the like sense of Liberty or Privilege Therefore in Quo Warranto Franchises Liberties and Priviledges séem to be of the same sense To be a Subject born and to have Liberty and Priviledge of a Fréeman and no Villian is a great Franchise and therefore in Law when a Villain is made Free we say he is Infranchised he hath the Franchise Liberty and Priviledge of being a Fréeman An Alien he is made Denizen by Letters Patents a Person attainted is Pardoned by Letters Patents and a restitution in blood granted and made a new Creature By these Grants the Alien and the Person restored have such Franchises Liberties and Privileges granted them that though before they were not capable to take hold or enjoy or Act as natural born Subjects or Freemen yet hereby they have such Capacity granted Next I think it will be granted that this Franchise Liberty Privilege or Capacity is not surrenderable or forfeitable except only in Cases of Treason or Felony where they forfeit their Lives by these instances this is proved That it is no true position that whatsoever is grantable is surrenderable and if surrenderable forfeitable which is one of the Reasons given by the King's Counsel why a Corporation is forfeitable for these Franchises or Privileges are by Grant and yet not surrenderable or forfeitable and this also shews that Arguments general and from general Rules are most fallible and fit only to take weak apprehensions But next consider what it is to be a Body Politick or Corporation A Body Politick is framed and constituted in similitude or likeness of a natural body with Capacity to take hold and enjoy and act as a natural body and can no more surrender or forfeit his being while the members of that Body are subsisting than a natural body can while alive It is only a Capacity framed and created in a multitude to be and act as one person they are incorporate and made one Body Politick that have Power and Capacity or Franchise of acting taking holding and granting this is their Franchise admit it so but differs from others Franchises and Liberties of all other Natures are Estates and Inheritances grantable and conveyable from one to another as other Estates are this is no such thing grantable or transferrable other Franchises and Liberties affect the King's Subjects and are Privileges claimed wherein the King and the rest of his Subjects not claiming the Franchise are more concerned than in this of being a Body Politick for other Franchises either convey some Profit from the King as Felons Goods Waifs Estrays Wrecks or the like Or affect his Subjects as Courts Gaols Returns of Writs Fairs Markets and the like But this of being a Body Politick is only a Capacity to be a Person capable of having and holding what may be granted unto it and of granting and acting as a natural Body and affects the King or other his Subjects no otherwise than giving Capacity to take hold and enjoy what they can get as other Persons capacitated may Other Franchises Liberties and Privileges are distinct and separate Estates and if any one be forfeit as it may for misuser the rest are not except incidents and appurtenances But if the being of a Corporation be forfeited All their Estates Lands Goods and Chattels are gone at once So that though you admit and call this a Liberty or Franchise 't is nothing like in its nature to those things generally known and understood by the name of Franchises or Liberties and general Sayings are generally to be understood of such things as are generally so taken and called If then there be such great and apparent difference betwixt this of the being a Body Politick supposing it being in a general and large sense a Franchise Liberty or Privilege and other particular Franchises admitting that which is said that the Misuser of a Franchise is a Forfeiture holds generally true yet it is not in every particular true where there is such apparent difference and reason to distinguish as betwixt the being of a Corporation or a Body Politick which is only a Capacity and other particular Franchises which are Estates there is also apparent reason to distinguish betwixt one and the other they being so much differing one from the other in nature and reality But next That this was never taken in Law to be such a Franchise Liberty or Privilege as was comprehended under the general meaning of Franchise or Liberty By Sta. of Glost ' Writs were to go to all Sheriffs forty days before the Eire of general Summons 6 E. 1. Inst 2. 278. for all to come in at the Eire to claim their Privileges and the second day of the sitting of the Iustices in Eire a Proclamation made to the same purpose In the Comment upon that Statute it appears Inst 2. 281. 282. that if the party did not appear his Franchises were seised into the King's hands Nomine districtionis and if not replevied sitting the Eire they were forfeit or lost for ever If the party did appear and did not claim then they were lost for ever In all the Procéedings in Eire there is no such thing can be found That the Corporations did come in and make Claims to their being Corporations or Bodies Politick or that ever any were seised if it be seisable into the King's hands or was forfeit for not Claiming Fulher and Heyward's C. Palm 491. It appears that the Dean and Chapter there Surrendred their Charter and all their Mannor Lands Possessions Privileges Franchises and Hereditaments Spiritual and Temporal and this with intent to Surrender that there might be a new Corporation erected as is recited in the Letters Patents of new Erection In this Case Rep. 3. 75. And. 2. 120. Jones 168. resolved that by this Surrender the old Corporation was not surrendered This Iudgment doth conclude and must be given either because by the word Franchise and the other general words the Franchise of being a Corporation was not comprehended or if the word 's sufficient and did comprise it that it could not by Law be Surrendered This I think sufficiently shews that Corporations were in Law as Persons natural are and in like manner claimed and that the being a Body Politick or Corporation was not to be claimed comprised or meant within the general words Franchises no more than the Liberty or Franchise of Denizen or Manumission Next No instance can be given of any seisure of any Corporation or Body Politick for
Persons but their Masters or those that deputed or delegated them for another purpose they are innocent they shall not suffer by it though no Acts of Parliament had been in the Case If the Acts of Parliament against Seising the Liberties of the City for or by reason of any miscarriage of their Officers or Ministers extend to these Acts of the Mayor Aldermen and Common Council If so be that these Acts were the Acts of the Corporation Yet with Submission if they have shewn a good and legal Right by their Custom and Title to make By-Laws for regulating and settling the Markets and Tolls and that which they have done be as pleaded reasonable and that there was reasonable Ground at that time for their Petition which they have set forth If all these particulars that I have now summ'd up be against me then Iudgment must be against me though I know not what that Iudgment can be But if any one of these particulars thus repeated be for me and against Mr. Attorney then Mr. Attorney can have no Iudgment against the City But Iudgment must be for them Which I humbly pray The next Term viz. Trin. 35 C. 2. Ch. Iust Saunders dying the day of the Iudgment given or the next day after Mr. Iust Jones Iust Raymond and Iust Withens being in Court Iust Jones pronounced the Iudgment of the Court and Iust Raymond and Iust Withens affirmed that Ch. Iust Saunders was of the same Opinion with them and that they all agreed 1. That a Corporation aggregate might be seised That the Stat. 28 E. 3. c. 10. is express that the Franchises and Liberties of the City upon such Defaults shall be taken into the King's hands And that Bodies Politick may offend and be pardoned appears by the general Article of Pardon 12 C. 2. whereby Corporations are pardoned all Crimes and Offences And the Act for regulating Corporations 13 C. 2. which provides that no Corporation shall be avoided for any thing by them mis-done or omitted to be done shews also that their Charters may be avoided for things by them mis-done or omitted to be done 2. That exacting and taking Money by the pretended By-Law was Extortion and a Forfeiture of the Franchise of being a Corporation 3. That the Petition was scandalous and libellous and the making and publishing it a Forfeiture 4. That the Act of the Common Council was the Act of the Corporation 5. That the Matter set forth in the Record did not excuse or avoid those Forfeitures set forth in the Replication 6. That the Information was well founded And Gave Iudgment that the Franchise should be seised into the King's hands but the Entry thereof respited till the King's Pleasure was known in it Iust Raymond and Iust Withens declare that they were of the same Opinions in omnibus And accordingly after Entry made by Mr. Attorney That as to the Issue joined to be tried by the Countrey As to the claiming to have and constitute Sheriffs As to the having the Mayor and Aldermen to be Iustices of the Peace and to hold Sessions quod ipse pro Domino Rege ulterius non vult prosequi Iudgment is entred Ideo consideratum est quod prefat ' Major Communitas ac Cives Civitat ' Lond ' as to the Issue aforesaid betwixt our Lord the King and them joined and as to the Liberties and Franchises aforesaid by them claimed to have and elect Sheriffs and to have their Mayor and Aldermen to be Iustices of the Peace and hold Sessions Eant-inde sine die salvo jure Dom. Regis si al' c. Et quoad dictas separales materias in lege unde tam pred' Att ' Gen ' quam pred' Major Communitas Cives Civitat ' pred' posuerunt se in Judicium Curiae the Court advise till Trinity Term and then pro eo quod videtur Curiae hic quod prefat ' Major Communitas ac Cives Civitat ' pred' forisfecerunt Domino Regi nunc Libertat ' Privileg ' Franches pred' ob causas in Replicacon ' prefat ' Attorn ' Gen ' superius specificat ' quod Placita prefat ' Major ' Communitat ' ac Civium Civitat ' pred' superius rejungendo repellando in ea parte placitat ' materiaque in iisd ' content ' minus sufficien ' invalid ' in lege existunt ad precludend ' dict' Dom ' Reg ' a Forisfactura pred' aut ad Major ' Communitat ' ac Cives Civitat ' pred' ad clamand ' Libertat ' Privileg ' Franches pred' sibi allocand ' adjudicand ' manutenend ' maturaque deliberacione superinde prius habit ' Considerat ' est qd ' Libertat ' Privileg ' Franches pred' sore de seipsis unum Corpus corporat ' Politic ' in re facto nomine per nomen Majoris Communitatis Civium Civitat ' Lond ' ac per idem nomen placitare implacitari respondere responderi per eosd ' Majorem Communitatem ac Cives Civitat ' London pred' superius clamat ' capiantur seisiantur in manus Domini Regis quod prefat ' Major Communitas ac Cives Civitat ' Lond ' pred' capiantur ad satisfaciend ' dict' Dom ' Reg ' de Fine suo pro Usurpatione Libertat ' Privileg ' Franches predict ' Postscript THE Question concerning the Surrender of Corporations or Bodies Politick not being directly in the Case but in the Arguments on both sides insisted on it may not be unnecessary to state that Point and collect what hath been in the Debates or Arguments alleadged on either side that the easier View and Iudgment may be made of it By Surrender in this Question is by both sides meant and intended some Deed or Instrument in writing whereby a Body Corporate or Politick can surrender and dissolve it self It is agreed that a Body Politick may be dissolved either by the Death of the Persons incorporate or their Refuser to act nominate or elect Officers or Ministers so as there remain not sufficient authorized or enabled by their Charter or Constitution to preserve their Being This is admitted to be a Cesser or Dissolution of the Corporation and such a sort of yielding up or Surrender is admitted possible But whether by any Deed or Instrument in Writing it can be done that is the Question intended For the Surrender It hath been alleadged 1. That the Being of a Body Politick is a Liberty Privilege and Franchise that had its Commencement by the King's Charter or by Prescription which supposes a Charter and if it have its beginning and Creation by Charter which is the Kings Deed that grants it by Deed again it may be regranted and surrendered And 't is a Maxim in Law Unumquodque dissolvi potest eod ' modo quo ligatur And instances in Fairs Markets Leets and such like Franchises granted by Charter which say they may be surrendered by Deed or
said that that Surrender was not thought good till confirm'd by Act of Parliament And as for the other Case Dyer 282. of the Surrender of the Dean and Chapter of St. Patrick The Opinion of the Iudges there given is by all the Iudges 3 Car. 1. in the Case of Heyward and Fulcher in Jones 168. denied to be Law and said to be a private resolution So that these two Cases in Dyer having béen by those later Authorities denied remain no Authorities And as for the other Authority viz. The opinion of Iustice Jones 168. that a Corporation may be dissolv'd by a proper Act viz. by Resignation That is true taken in the sense he speaks it it is spoken of a Dean and Chapter resigning to the Ordinary viz. The Dean resigning his place of Dean and the Prebendaries of the Chapter resigning their Prebends to the Ordinary whereby their Churches and Prebends became void and to be supplied by the respective Patron collating or presenting as in Cases of Resignation by any Parson or Vicar to his Ordinary But this is nothing of a Surrender of the Body Politick to the King and thereby dissolving the Corporation and destroying all supply by new Presentments or Collations And this appears by the very words of Iustice Jones there for when he saith they may be dissolv'd by a proper Act viz. by Resignation the next words are or by death of the whole Corporation and the King being Patron 't is in his Election whether he will collate de novo or not and till he collates the Corporation is in suspense but if the Bishop be Patron then the Bishop upon the Resignation hath power to collate and thereby to continue the Corporation So that it is very plain that the Resignation he speaks of is not meant for any Surrender to the King or any thing that determines the Corporation except the Patron will not collate and thereby suffer the Corporation to cease But of the contrary that a Corporation cannot be dissolv'd by any Surrender The Suppression and Dissolution of the Abbies Priories and Monasteries by H. 8. was no Dissolution of their Bodies Politick Br. Extinguishment 75. Br. Corporation 78. Davies Rep. 1. Moore 's Rep. 282. Though their Houses and all their Possessions were gone and the Persons either discharged of their Orders or sent into other Houses yet resolved that the Corporations remain'd And it can scarce be imagin'd but in some of those Cases it would have been practised or at least something said about surrendring their Body Politick if it had been then thought surrenderable But the Cases of the Dean and Chapter of Norwich Rep. 3. 41 Eliz. before cited And the Case of Heyward and Fulcher before mention'd in 3 Car. 1. Jones 168. Palm Rep. 500 501. Anders 2. 120. Have been cited as Iudgments against Surrenders by all the Iudges of the King 's Bench. The Case was That the Dean and Chapter of Norwich 3 Junii 1 E. 6. surrendred to the King their Cathedral Church all their Mannors Lands Tenements Hereditaments Franchises and Liberties Spiritual and Temporal by whatsoever names they are known or which they have or ought to have in the Right of their Church And by the Case 41 Eliz. Co. Rep. 3. 74. And the Opinion of all the Iudges of the King 's Bench. 3 Car. 1. adjudged that this was no Surrender of the Corporation Obj. That the words of the Surrender do not shew any intent to surrender the Corporation but only the Possessions Resp The being of a Corporation is a Franchise or Liberty And there is an express Surrender of all Franchises and Liberties Spiritual and Temporal by what name soever known which they have in the right of their Church And this was a Spiritual Franchise which they had in right of their Church Next This Surrender was made with intent to dissolve the Corporation and to have a new one erected this appears by the new Charter of Erection made in November following which recites the Surrender made to that intent It is not any where in the many Arguments of that Case alleadged that there wanted words in the Surrender to doe it which would have been if that had been the Ground of their Iudgment In the Case cited out of Dyer 282. there the words of the Surrender were that they surrendered their Church Houses Lands and Possessions which are not half so large and ample words as in this Surrender are contain'd and the other side cite that as an Authority to prove a Corporation surrender'd and admit the words there sufficient and deny them to be sufficient here though much more large express and general The arguing there in Palmer 501. that it is against the Nature and Constitution of Corporations that by the words put in their Charters by their very Constitution are to have perpetual Succession perpetuis temporibus duratur and which by their Oaths they are sworn to preserve that they should be felo de se And the express words of the Iudges reported in these Books shew their Opinion that the Corporation could not be surrendred Jones 168. Dodderidge Iustice there saith that the Dean and Chapter cannot surrender their Corporation Palm 501. Whitlock Inst there saith For that that the Dean and Chapter are Counsel to the Bishop instituted to that purpose they cannot dissolve themselves for the Politick Corporation is the Soul to the Body that cannot be granted or sever'd though the King can create a Corporation he cannot dissolve it And Jones Inst there 502. saith That the Dean and Chapter were Counsel to the Bishop and cannot destroy themselves if they could great Inconvenience thereby will ensue to the Church FINIS