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A57319 The right of the citizens of London to elect sheriffs in their common-hall, proved, from the custom of our ancestors, from their charters, history, antient acts of Parliament, judgments and resolutions of many learned judges 1700 (1700) Wing R1505; ESTC R1437 9,090 4

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a Destruction against Magna Charta unless it be by the Citizens in Common-Hall who have that Power by Custom If the Mayor of a Corporation shall challenge a Negative Voice by his Prerogative and to deceive the People shall cause Entries thereof to be made in Books for a Record or Memorial thereof and pretend to have the Opinions of Men that have been Judges Attornies General or Solicitors General to his Majesty or his Predecessors and shall thereby prevent the good Orders and Laws that may be made to hinder undue and disorderly Elections of Mayor and Sheriffs this is a good Cause of Disfranchisement by the Common-Hall or Hall-Court If the Mayor or any of the Magistrates of the City shall alter the antient Oaths of Common Council Sheriffs and others established to prevent the selling of Judges Places and other Offices which they are or ought to be sworn not to sell but dispose of freely without Bribe or Reward 'T is a good Cause of Disfranchisement If any great Officer of a Corporation shall claim a Prerogative to make that Man a Sheriff he drinks to this is an Invasion of the Rights of the Citizens against his Duty and against Law and a good Cause of Disfranchisement This Hall-Court ought to take care that their Charter be not forfeited they ought by their By-Laws to prevent and to punish Incroachments on their Liberties against Magna Charta under Colour and Pretence of Fines and Forfeitures The raising of more than 150000 l. on Pretence of choosing Sheriffs within 44 Years last past is an Abuse of the Trust reposed in them by Kings and Parliaments 'T is a scandalous Imposition against the Right of the Subject and against Law and Justice What ill Manners is it then modestly to vindicate the Right of the Common-Hall to elect Sheriffs and to preserve the Rights and Liberties of the Citizens of London in their Representatives according to Use and Custom in all times since the Charter of Will I. and Hen. I Or what Disservice to his Majesty Cook in his 2d Instit tells us he cannot pass a Resolution of all the Judges of England in 34th Hen. 6. on this Occasion Upon a Reference by the King 's Privy Council to Sir John Fortescue and Sir John Priscot Chief Justices and to the rest of the Justices concerning a Sheriff constituted by the King himself it is thus in the Council-Book recorded 3 Martii ann 34. Hen. 6. as followeth in these Words Upon a Demand that my Lord Chancellor made to the Chief Judges and to the Remnant of the Judges how that the King's Laws neither Justice might not be executed in Lincolnshire because there was no Sheriff there and that the King by his Letters Patents under his great Seal had deputed certain Men for to have be Sheriffs there what them seemed should be done in this Behalf so that the King's Laws and Justice might been executed in that Shire as executed in other Shires in England The 2 Chief Justices the same Day came unto my Lords of the King's Council in the Sterred-Chamber and upon the above said Demand said that them seemed and so it seemed unto the Remnant of the Judges that the King did an Error when that he made another Person Sheriff of Lincolnshire than was chosen and presented unto his Highness after the Effect of the Statute in such Behalf made In the Reign of Richard II. this was a Controversy between the King and the People who under the Conduct of the Barons came to London where it was ended by the Submission of that unfortunate Prince and one of the Articles of Deprivation against him was that he displaced divers Sheriffs lawfully elected and put in their Places ill Men thereby subverting the Law contrary to his Oath and Honour The Common-Council of London as Freemen have sworn to maintain the Franchises and Liberties of the City yet they are the very Men that make By-Laws to take away this Liberty and Franchise which is a Trust lodg'd in the Common-Hall by many Kings and Parliaments The Power that a Common-Council-man has is as one of the Livery he cannot elect unless of the Livery all that are not so are commanded to withdraw by the Crier before the Election on pain of Imprisonment yet when he is elected he as is pretended has a Power in Common-Council to disfranchise his Corporation 'T is adjudged in Cook 's 5th Rep. the Chamberlain of London's Case that the Common-Council of London cannot make Laws against the Laws and Statutes of the Realm and that such Laws made by them are void But Laws made by them or other Assemblies of Men that are not repugnant to Law and Reason are good 'T is there resolved that Laws made by them pro privato lucro are vo●d 'T is there adjudged that they may make Laws for good Order and Government the Government there intended is the Government by Law establish'd by Parliament not a Government by Officers chose by them contrary to Charters and Statutes such Laws are made against the Government of the City and are void 'T was resolved by all the Judges in England in the Case of Dungannon in Ireland that only Corporations are capable to take such Inheritances A Common-Council it seems can give what it cannot take for a Common-Council is no Corporation Trin. 32 Eliz. In an Action of false Imprisonment in the Common Pleas brought by Clarke against Gape the Defendant justified the Imprisonment for that King Edward VI. had incorporated St. Albans by the Name of Mayor c. and granted to them to make Ordinances and shews that Queen Elizabeth appointed the Term to be held there by reason of which they with the Consent of the Plaintiff and other Burgesses assessed every Inhabitant towards the erecting Courts there and ordained that if any refused Paiment he should be imprisoned and for that the Plaintiff being a Burgess refused Paiment he as Mayor justified and this was adjudged no Plea for that this by-Law is against Magna Charta and the Consent of the Plaintiff could not alter the Law If a Common-Council may take away this Liberty and Franchise of choosing Sheriffs why may they not take away their Liberty and Franchise of using Trades in the City The Law has secured the one as much as the other and the doing the latter succeeded very ill with a Mayor and Aldermen of London in the Reign of Hen. 8. Justice Crooke in the first part of his Reports fol. 33. saith That Periam Justice said he had seen a Precedent in the time of K. Hen. 8. where a Citizen of London sued a Citizen of London in the Common Bench and the Mayor and Aldermen would have him put the Matter to Compromise which he refused whereupon they did disfranchise him and he shewed this Matter to the Court and thereupon they directed their Writ to the Mayor c. to restore him to his Franchise and they assessed a Fine of an hundred Marks
upon every of them that were Parties to the Disfranchisement which they payed as appeareth by the Record and the Citizen was restored to his Franchise The Question ask'd the Judges in the 40th and 41st of Eliz. was Whether the antient and usual Elections of the Mayors Bayliffs Provosts c. by a certain select Number of the Principal of the Commonalty or of the Burgesses commonly called the Common Council or by such other Name and not in general by all the Commonalty or Burgesses nor by so many of them as would come to the Election were good in Law Forasmuch as by the Words of the Charters the Election shall be indefinitely by the Commonalty or by the Burgesses which is as much as to say by all the Commonalty or all the Burgesses c. To which all those learned Judges gave this Answer That antient and usual Elections of Officers of Corporations by a certain select Number of the Principal of the Commonalty by Prescription and not by all the Commonalty in general were good Elections and well warranted by their Charters and By-Laws also This Resolution of the Judges justifies the Custom Usage and Practice of the Common-Hall to a tittle Had they considered this very Case and heard Arguments on both sides and decided the Matter for the Common-Hall against the Common-Council they could not have adjudged more plainly and fully for the manner of electing Sheriffs of London by the Common-Hall Acts of Common-Council had no Authority to order or regulate Elections unless confirmed by Common-Hall before the Prerogatives of Lord Mayors was set on Horse-back and the Liberties of the City trodden under foot An Evil as old as Solomon for antiently such By-Laws were confirmed by the Common-Hall as appears in their antient Books and Memorials in their Guildhall In the 18th Edw. II. one John Causton had been chosen Sheriff at the usual time he not appearing upon a Proclamation the Aldermen and Commons were summoned to be at Guildhall the Michaelmas-Day next following on which Day Causton was disfranchised and put out of his Aldermanship But the Common-Hall did not confine themselves to this only they made Ordinances in their Guild-hall concerning the electing Common-Council-men in the several Wards as appears by their antient Books in the Reigns of Edw. III. and Rich. II. These antient Charters Rights Customs and Prescriptions of the City of London have been restored and confirmed to the Citizens of London in all Ages The City of London is Cor Regni therefore its Charters its antient Liberties and Customs were not only granted and sold to them by Kings but the Purchase confirmed by many Parliaments Civitas Londin habeat omnes libertates suas antiquas are the Words of Magna Charta which my Lord Cook says hath been antiently thus expounded Let the City of London have their Franchises to which they are inheritable by lawful Title by the Gift and Confirmations of Kings which they have not abused and forfeited and which are not repugnant to Law The Statute of 14 Edw. III. says The City of London shall have all their Franchises The Statute de Tallagio non concedendo ordains that all Clerks and Laymen of England shall have their Laws Liberties and free Customs as largely and wholly as they have used to have them when they had them best and that all Statutes made and Customs brought in contrary to them shall be frustrate and void for evermore The Statute of this present King and the late Queen Mary restores to the Mayor Commonalty and Citizens all their Rights Gifts Charters Grants Liberties Privileges Customs Usages Constitutions and Prescriptions and all to no Purpose The two Acts of Common-Council of the 7th and 15th Edw. 4. like the two mighty Idols Bell and the Dragon devour all our Charters Rights Liberties Customs c. and all those Statutes that give and restore them Quid juvant Statuta Pride and Ambition is the Cause of this Controversy they contend for Prerogatives which makes Men mad and they catch at Shadows and beat and wound themselves with their own Weapons I cannot forget that old Exposition of Magna Charta which says the Citizens shall have their Franchises to which they are inheritable that good old Gentleman is unmannerly for we are now told he should have said If the Common-Council please I for my part bemoan the Condition of poor Mr. Wills for notwithstanding the Advice of some of the Judges as is pretended yet if the present Case of the Common-Hall lately printed be true and they be sworn that be not elected that poor Gentleman stands in need of the Prayers of his Congregation The Consequence of this idle Controversy must be sad and fatal to him and all that shall fall under that Calamity How shall such Men act that are no Officers Men not duly elected have no Authority they are in Danger of Suits they can neither be Officers nor Judges Here are greater Difficulties like to be than when the 2 Chief Justices Sir John Fortescue and Sir John Priscott were advised with by his then Majesty's Privy Council The City will bewail this Confusion and Disorder This Calamity will be far greater than that of Lincolnshire and greater Mischiefs will ensue than are foreseen which they must answer for that are the Occasion of these undue Elections But for that poor Gentleman I say God send him a good Deliverance FINIS