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
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
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
Regrant 2. That it is necessary that it should be dissolvable by Surrender perhaps a Town may come to decay and not be able to defray the charge that the Support and Maintainance of the Corporation may require for every one sees that Ornaments and Officers must be and these cannot be bought or maintained without Estates and poor men are not able without ruine to their Families to bear the Magistracies and Offices And therefore necessary there should be a Power in them to surrender 3. That the Books and Cases in Law do prove That a Corporation or Body Politick may surrender itself and thereby be dissolved Dy. 273. There the Case is thus stated The Deanry of the Cathedral Church of Wells was dissolved by the Surrender of Fitz-Williams tempore H. 8. And the Prebend of Currey in the same Church was also surrendered by Goodman Prebendary there 1 E. 6. And in this Year the Dissolution of the Deanry was confirmed and the Deanry extinct by Act of Parliament and a new Dean erected and created to which new Deanry the Lands and Possessions of the old were annext amongst other Possessions and the Nomination of the new Dean and Successors given by that Act to the King and that he should have the same Power in Choro Capitulo as the old Dean had saving to all Strangers other than the Bishop of Bath and Wells the old Dean and the old Prebendary and their Successors In this case 't is admitted and taken for granted that the Deanry and also the Prebend were surrendered Dy. 282. There the Archbishop of Dublin had two Chapters viz. the Dean and Chapter of St. Patrick and the Dean and Chapter of Christ-Church and both these used to confirm the Bishops Leases The Dean and Chapter of St. Patrick by Deed under their common Seal gave and surrendered all their Church Houses Lands and Possessions to the King without license or consent of their Bishop being their Ordinary and Patron of the most part of the Prebends After this Surrender their Church was used as the Common Hall for the four Courts in the Term there and a Lease is made by the Archbishop confirmed by the Dean and Chapter of Christ-Church only and whether the Successor of the Archbishop were bound by this Lease was the Question The Iudges in Ireland were divided in Opinion and thereupon the Case sent over for the Opinion of the Iudges here and the Opinions and Resolutions of five Iustices viz. Catlyn Dyer Saunders Welsh and Carus certified to the Lord Deputy of Ireland under their Hands were quod non fuit aliud Capitulum in esse tempore confirmationis Dimission ' pred' nisi Christ-Church tantum quia Corporatio Capitulum Sancti Patrick fuit per donum sursum reddition ' Decani Capituli pred' legitime dissolutum absque consensu Archiepiscopi Jones 168. The Opinion of Iustice Jones there That a Corporation may be dissolved by an Act proper viz. by Resignation On the other side it hath been answered 1. Admitting it to be true that to be a Body Politick is a Liberty Privilege and Franchise created by Charter which is the King 's Deed. Yet it doth not follow that it may be surrendered by Deed. For the Charters that incorporate the Citizens or Inhabitants of such a City Town or Place and make them a Body capable of taking and having Lands Goods or Chattels to sue and to be sued and to have a Common Seal and to act according to the Powers Ends and Purposes in their Charters contained only give them a capacity for those Ends. The Liberty Privilege and Franchise that they have goes no farther They cannot transfer this Privilege or Franchise to any other Persons These are only personal Franchises or Capacities fixed in the Persons in whom they are granted Like to Patents of Denization granted to Aliens whereby a capacity is granted to have hold and act as a natural born Subject Grants of Enfranchising a Villain These are Grants that cannot be surrendered These are Franchises and Capacities like this These are Exceptions to the General Rule Unumquodque dissolvitur eodem modo c. So also of Fairs Markets Courts c. They are created by Charter they may be granted over or granted to the King but if they be regranted to the King they are not extinct but remain in the King Abbot of Strata Marcell's Case Rep. 9. 25. b shews the difference thus When the King grants Franchises that were in the Crown before the Grant as Bona Felonium Deodands Wreck c. and these come again to the Crown they are merged in the Crown and the King is seised of them jure Coronae But when a Privilege Liberty Franchise or Iurisdiction was at first erected or ordained by the King there by the coming of it again to the Crown they are not extinct and instanceth in Fairs Markets Hundreds Léets similia They are not dissolv'd or gone for thereby Subjects would be prejudiced For if the Court should be so granted and thereby dissolved the Subjects Iudgments and Suits in those Courts would all be lost These are other Exceptions to that general Rule Unumquodque c. 2. That the Reason given for the Surrenders of Corporations from the poverty that may happen for the conveniency of some Corporation is answerable for that doth not very frequently happen But when it doth happen if they are weary of it they may let it alone and not act or choose Officers it will cease of it self néed not be at the charge or trouble of a Surrender But on the other side the Inconveniences are very great and are some of them before specified The Establishment of the Church is all in Corporations Bishops Deans Chapters Prebends Parsons Vicars if these be surrenderable as by the Cases cited without consent of Bishops a Prebend is as to his being but as a Parson or a Vicar The Vniversities Colleges Hospitals all the Cities considerable Towns Trades and Mysteries are Corporations if these be surrenderable it affects our old Government 3. As for the Books and Authorities Dy. 273. the Dissolution of the Corporation thereby surrendred is only mention'd in putting the Case it is not debated nor was it material in the Case For the Act of Parliament there settled the new Dean and Chapter and the Prebendary and the matter of the Case ariseth upon the Deprivation of Dean Goodman and the appeal and reversal of that Sentence there is not as much as any Opinion in the Case concerning the Dissolution or Surrender whether good or bad But what may reasonably be inferr'd from that Case is That the Surrender and Dissolution thereby was not good in Law for if it had what needed the having an Act of Parliament to secure against the old Dean and Prebendary which appears in the Case was had And Co. Rep. 3. 75. b. in the Case of the Dean and Chapter of Norwich This Case of Dyer is cited and there expresly
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
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
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
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
Corporation if its Duration and Existence be so fickle and infirm that every Abuser or Misurer shall forfeit it There will be no need of Officers to be amoved thereby to determine this Corporation at will and Pleasure this Position contains enough to doe all These great consequences attending this Doctrine of Forfeiture are Reasons to prove the Law otherwise Obj. But saith Mr. Attorney if I understand him we do not intend to destroy the Corporation though we say in our Pleading that you have forfeited your old Corporation that you have without any lawfull Authority usurped upon the King and pray in our Replication that de Libertate Privilegio Franchesia illa viz. the being a Corporation abindicantur excludentur These are but words of form we only will lay the King's hands gently upon it and seise it but the Corporation shall not be destroyed or dissolved Resp This is wonderfull and a great Compliment to the City as I take it let us not flatter or deceive one another We are not now in the irregular days in the Records mentioned nor in such fort of Proceedings as in those distracted times Let us not go by blind conjectures out of old Records and bring in unknown ways We are now in a Quo Warranto which as Mr. Attorney truly saith is in the nature of a VVrit of Right and a VVrit of right is the highest VVrit that is in the Law Rep. 9. 28. Inst 2. 282 495. and the Iudgment therein and in this Quo Warranto must be conclusive to all Parties If given against the Defendants it must conclude them for ever and dissolve their Corporation and if given against the King he shall never hereafter bring it in question for any cause precedent Cook 's Entries 527. D. hath a Precedent of it Consideratum est quod the Defendant de in Libertatibus Privilegiis Franchesiis pred in Informatione predict ' specificat ' nullo modo se intromittat sed ab iisdem penitus excludatur The like against Ferrers and the Virginia Company and many others may be found M. 21 Jac. r. 9. The Court cannot alter the Iudgment it will be erroneous if they doe And to talk of a Iudgment of a Seisure what is the meaning of it or such Iudgment Is it final or not final The Court must give a final Iudgment that the Party if he think fit may have his VVrit of Errour The Court will not take any of your old Records to go by if any such to be found that would warrant any other Iudgment Therefore a Seisure without such a Iudgment that determines the Corporation cannot be any way brought to pass as I believe nor can I understand in whom by your Seisure you would have the old Corporation to subsist Transferred from the Persons in whom it now subsists I think is impossible but dissolved by your Iudgment it may be And I hope your Lordship will not be induced by singular unwarrantable Things That a Iudgment should be given that shall neither dissolve the Corporation nor continue it that shall neither be for Plaintiff nor Defendant that shall leave the Corporation neither alive nor dead but in Transitu or Limbo Patrum A Iudgment Quod capiantur or quod Libertates Franchesii predict ' seisiantur in manus Domini Regis VVas there ever any the like VVhat shall be understood by it Shall we be afterwards a Corporation Shall our Magistrate continue Shall we have our Lands Markets Tolls Customs or Franchises or not Or shall we be none and yet not dissolved I must confess I am confounded in these Notions Next As to the Authorities in Law for me 1. I take it to be a great Authority for me that there is no Precedent or Iudgment or Book Case produced or found that ever a Corporation was forfeited It lyes upon the other side to produce it or shew it and no doubt they would if there had béen any but there is none by the Authorities they cite you may easily perceive any sort would not be omitted 2. The Nature of a Corporation as our Books do describe it shews it not forfeitable I take it plain out of the Case of Sutton's Hospital and the other Books there cited Rep. 10. 92. b. 21 E. 4. 72. A Corporation aggregate is Invisible Immortal and rests only in Intendment and Consideration of Law cannot commit Treason or Felony be Out-lawed Excommunicate hath no Soul cannot appear in Person cannot doe Fealty cannot be Imprisoned not subject to Imbecility or Death Br. Corp. 24. 34. They cannot commit any actual Trespass or Disseisin except under their common Seal by command precedent or assent subsequent when our Books say that they are a Body Politick and rest or have their being in Intendment or Consideration of Law thereby is meant that that they are by Law enabled to Act to particular ends and intents answerable to their ends and creations Their ends or creations are only to be subservient to the publick Good and Government and Preservation of the City or Town Incorporate of the Members thereof And if there be any Act done by the Members that are the active part of such Corporation to any other intent end or purpose This not the Act of the Corporation but of the particular Members and they only answerable for it And as to particular Offences and Miscarriages in this Case alleadged it cannot be denied but that the particular Members are answerable for it and if they then according to all Books they ought not to be doubly chargeable or answerable in both Capacities And the Case cited out of Bagg's Case of a Fréeman convict of Perjury and thereupon Disfranchised doth not prove that they shall be punished in a double Capacity for the Corporation is not thereby punished but preserved The being of a Body Politick is only a Capacity and in resemblance of a natural Body and no more forfeitable than a natural Body It is seising forfeiting of Liberties that we meet with that is such as are generally spoken of as Markets Courts Iurisdictions and the like And in the old Records by seising the Liberties of a Corporation is meant the taking from them their Officers and putting in others upon them for a time But a forfeiting dissolving and determining the Body Politick never was yet done or known nor as reasonable to believe ever entred into any mans thoughts till now for I have already shewn that Offences and Miscarriages that were committed by the Corporations in those troublesome Times of E. 1. E. 2. and R. 2. for which their Liberties were seised were not Forfeitures and Determinations of those Corporations they all remain Corporations by Prescription to this day And I have also taken notice that the Acts of Parliament that were made in the succeeding Kings Reigns of H. 4. H. 5. and H. 6. are only Acts of Confirmation to the Cities and Boroughs of the Liberties and Privileges From
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