the space of Seven Years next after the making this Ordinance received divers great Sums of Mony in all amounting to 5000 l. per Annum in oppression of the Kings Subjects And further That whereas a Session of Parliament was holden by Prorogation and continued to the 10th of January 32 Car. II. and then prorogued to the 20th of January then next The Mayor Commonalty and Citizens 13 Jan. 32 Car. II. in their Common Council assembled unlawfully maliciously advisedly and seditiously and without any lawful Authority assumed upon themselves Ad censendum judicandum dictum Dominum Regem Prorogationem Parliamenti per Dominum Regem sic fact ' And then and there in Common Council Assembled did give their Votes and Order that a certain Petition under the name of the Mayor Aldermen and Commons of the City of London in Common Council assembled to the King should be exhibited in which said Petition was contained That by the Prorogation the prosecution of the publique Justice of the Kingdom and the making necessary provision for the preservation of the King and of his Protestant Subjects had received interruption And that the Mayor and Commonalty and Citizens in the same Common Council assembled did unlawfully maliciously advisedly and seditiously and with intention that the said Petition should be dispers'd amongst the Kings Subjects to induce an opinion in them that the said King by proroguing the Parliament had obstructed the publique Justice and to incite the Kings Subjects to hatred of the Kings Person and Government and to disturb the Peace of the Kingdom did Order that the said Petition should be printed and the same was printed accordingly to the intent and purpose aforesaid By which the Mayor Commonalty and Citizens aforesaid the Priviledge Liberty and Franchise of being a Body Politique and Corporate did forfeit and afterwards by the time in the Information that Liberty and Franchise of being a Body Politique did usurp upon the King Et hoc c. And as to the other two Pleas viz. The making and having Sheriffs and Justices of the Peace The Attorney General Imparles to Mich. Term. THE Mayor Commonalty and Citizens Rejoynder as to the Plea of the Attorney General pleaded in Assigning a Forfeiture of their being a Body Politique and Corporate Protestando That those Pleas by the Attorney pleaded and the matter in the same contained are insufficient in the Law to forejudge or exclude the Mayor and Commonalty and Citizens from being a Corporation Protestando etiam That no Act or Deed or By-Law made by the Mayor Aldermen and Common Council is the Act or Deed of the Body Corporate Protestando etiam That they the Mayor and Commonalty and Citizens of London never took upon them any unlawful or unjust Authority to Tax the Kings Subjects for their own private Gain or did ever levy or exact from the Kings Subjects coming to Markets such yearly Sums as in the Replication are alledged For Plea say That London is the Metropolis of England and very populous Celeberrimum Emporium totius Europae That there are and time out of mind have been divers publique Markets for Provision and Merchandise within the said City to be sold That the Mayor and Commonalty and Citizens have been time out of mind and yet are seiz'd of these Markets in Fee and by all the said time at their own Costs and Expences have provided and have accustomed and ought to provide at their own costs Places for the holding the said Markets and Stalls and Standing and other Accommodations for persons bringing Provisions and Merchandises to the said Markets and Supervisors and other Officers for the better preserving and ordering the said Markets and of the great concourse of persons coming to the same and for the sustaining and supporting of the said costs and expenses by all the time aforesaid have had and ought to have reasonable Tolls Rates or Sums of Mony of persons coming to the said Markets for their Stalls Standings and other Accommodations by them for the better exposing their Commodities had and enjoyed They further say That the Citizens and Freemen of London are very numerous viz. 50000 and more That within the said City there hath been time out of mind a Common Council assembled as often as necessary consisting of the Mayor Aldermen and of certain of the Citizens not exceeding 250 persons thereto annually elected called the Commons of the said City That there is a Custom within the said City for the Mayor Aldermen and Common Council to make By-laws and Ordinances for the Regulation and Government of the publique Markets within the City That these Liberties and Customs of the City were confirmed by Magna Carta and the other Statutes in the Plea abovementioned That by reason of the burning of the City in Septemb. 1666. and the Alterations in the Market-Houses and Places thereby occasion'd for the establishing and resetling the Markets within the City 17 Septemb. 26 Car. II the then Mayor Aldermen and Commons in Common Council Assembled according to the said Custom for the better Regulation of the said Market did make and publish an Ordinance Entituled An Act for the Settlement and well-ordering the Publique Markets within the City of London by which said Ordinance reciting that for the accommodation of the Market People with Stalls Shelters and other Necessaries for their Standing in the Markets and for the amendment paving and cleansing the Market-places and for the support and defraying the incident Charges thereof there have been always certain reasonable Rates and Duties paid for the same And to the intent that the said Rates may be ascertain'd and made publique to all Market-people and the Collectors restrained from exacting It was Enacted and Ordained by the said Common-Council that the Rates and Sums in the Replication should be paid to the use of the Mayor and Commonalty and Citizens or upon refusal to be removed out of the Market And they aver that these are all the Rates or Duties paid and were reasonable Sums to be paid and these they have demanded and received for the use and purpose aforesaid as was lawful for them to do As to the other matter alledged by the Attorney General in Assigning the Forfeiture they say That within this Kingdom viz. at the Parish of St. Michael Bassishaw London there was an execrable Plot and Conspiracy prosecuted by Papists to destroy the King and to subvert the Ancient Government and suppress the true Religion in this Kingdom Established That Sir Edmundbury Godfrey took Examinations of Witnesses and Informations of the same and also of the burning of London by the Papists That divers of these Conspirators had lain in wait for him and murthered him to the intent to suppress his Examinations and to deter other Magistrates from acting in the Discovery That Green and others were try'd and hang'd for this Murther That Coleman and others were also try'd and executed for the same Conspiracy That William Lord Powis
Lord Arundel of Warder Lord Petre Lord Bellasis were Impeached by the Commons in Parliament of High Treason for the same Conspiracies and sent to the Tower That the King in his Speech to that Parliament had recommended to them the further pursuit and examination of that Conspiracy declaring he thought not himself nor them safe till that matter were gone through with and therefore that it was necessary that the said Lords in the Tower should be brought to their Trials that Justice might be done and the Parliament having made an Address to the King wherein both Lords and Commons declared their being deeply sensible of the sad condition of the Realm occasioned chiefly by the Conspiracies of a Popish Party who had plotted and intended the Destruction of the King and Subversion of the Government and Religion of the Kingdom and thereupon a Solemn Fast kept pursuant to the Kings Proclamation grounded upon the said Address and divers Bills prepared to be pass'd into Laws for preservation of his Protestant Subjects These Impeachments and Bills being thus depending and the Lords in the Tower not Tryed the Parliament was upon the 10th of January prorogued as the Attorney General above in his Replication hath alledged by reason whereof the Citizens and Inhabitants of the said City being faithful Subjects to the King were much disquieted with the sense and apprehensions of the Danger threatning the Person of the King his Government and Realm by reason of the Conspiracies aforesaid as is by both King and Parliament affirmed and declared and conceiving no better means to prevent than by the Sitting of the Parliament and having received a Petition from divers faithful Subjects Citizens of London to the same effect And it being lawful to Petition the Mayor Sir Patience Ward and the Aldermen and Commons in Common Council assembled for the preservation of the King and his Government did cause to be written the Petition in the Replication mentioned which is set forth in haec verba and did Order that after the same was presented to the King it should be Printed for the satisfaction of the troubled Minds of the said Citizens and traverse the writing or making any other Petition or making this to any other end or intent than they have pleaded THE Attorney General as to the Plea of the Mayor Surrejoynder and Commonalty and Citizens pleaded to the making and publishing the Ordinance about the Markets Protestando That the Mayor and Commonalty and Citizens were not seiz'd of the Markets nor at their charges provided Stalls and Necessaries or Market-places Protestando etiam That the said Rates and Sums were not reasonable For Plea saith That by a Statut made 22 Car. II. it was enacted that Places for Markets should be set out and 2 d. per Chaldron upon Coals for the charge of that and many other things was given and that they received a great Sum out of that Duty for the purpose aforesaid and yet for their own private Lucre took the Mony by the Ordinance And traverseth that the Mayor and Commonalty and Citizens time out of mind habuerunt habere consueverunt Tolneta Ratas sive denariorum summas per ipsos Majorem Communitatem Cives superius supposit per prefatam Legem sive Ordinationem predict ' Assess in certitudinem reduct prout per placitum suum superius rejungendo placitat ' supponitur And to the Plea of the Mayor and Commonalty and Citizens pleaded to the Residue of the Attorney's matter assigned for a Forfeiture as aforesaid The Attorney Protestando That the aforesaid Prorogation of the Parliament was for urgent Causes concerning the good of the Kingdom and thereby the prosecution of publique Justice not interrupted And Demurrs to the said Plea of the Mayor and Commonalty and Citizens by them pleaded as to the Petition Rebutter THE Mayor and Commonalty and Citizens as to the making and publishing the Ordinance for the payment of Monies by those that come to the said Markets say as before That the Mayor and Commonalty and Citizens have time out of mind had and accustomed to have reasonable Tolls Rates or Sums of Mony of all Persons comming to these Markets with Victuals and Provisions there to be sold for Stalls Standings and other Accomodations by them had for exposing their Victuals and Provisions to sale And of this they put themselves upon the Country c. To this Mr. Attorney demurrs And as to the Plea by the Mayor and Commonalty and Citizens pleaded to the Residue of the matter by the Attorney General assigned for Forfeiture they joyn in Demurrer Memorandum That when the Demurrer in this Case was joyn'd viz. Mich. Term. 34 Car. II. Mr. Sergeant Pemberton was Chief Justice of the King-Bench But before Hillary Term that it came to be argued he was removed and made Chief Justice of the Common-Bench and Sir Edmoud Saunders who had been Counsel for the King in drawing and advising the Pleadings was made Chief Justice of the Kings Bench. De Termino Sancti Hillarii Annis RRs Car. II. 34. 35. Annoque Dom. 1682. In Banco Regis die Mercurii 7. Februarii Dominus Rex versus Majorem Communitat ' Cives Civitat ' London THIS Great Case was twice only argued at the Bar First by Mr. Finch the Kings Sollicitor for the King and Sir George Treby Recorder of London for the City And next by Sir Robert Sawyer the Kings Attorney General for the King and Henry Pollexfen for the City Mr. Sollicitor The Questions in this Case as I think will be Mr. Sollicitor I. Whether any Corporation can be Forfeited II. Whether the City of London differ from other Corporations as to point of Forfeiture III. Whether any Act of the Mayor Aldermen and Common Council in Common Council Assembled be so much the Act of the Corporation as can make a Forfeiture IV. Whether the Acts by them done in making the By-Law and receiving Mony by it or in making the Petition and causing it to be Printed and Published be such Acts as if done by the Corporation will make a Forfeiture of the Corporation The First of these Questions truly I should not make any Question at all but that this Case has been a Case of so great expectation every man hath discoursed about it and the prejudice that some have entertained concerning it have drawn them to assert the Negative Proposition Therefore my Lord because this strikes to the whole though I think it hath no Foundation in Law I will beg leave to remove this Objection out of the Case I. First of all No Corporation hath any other Creation than any other Franchises have and subsist upon the same Terms that other Franchises do II. There is a Trust or a Condition in Law that is annexed to and grows upon all Franchises that they be not abused and the Breach of them is a Forfeiture of the very being of the Franchise III. And as there is no Foundation 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
a Law-book to back me I remember that my Lord Hobart says That Zeal and Indignation are fervent Passions The City of London had great Indignation against the Papists for this Conspiracy against the King and Kingdom and the Religion established by Law There was no disaffection in the City at this time when this Petition was made sure and I wonder that any man should say that knows London and was acquainted with it then and looks upon this Petition which passed nemine contradicente that they had such an intention as is insinuated And pray let him read the Names of the worthy Aldermen that then sat upon the Bench and the other Names of the Common Council-men then present and then let him say if without Reflection the King have more loyal Subjects in the City of London than these men were And do you think if there had béen in it any Sedition or any of those ill qualities that make up the ill Adverbs which are joyned to it in the Replication not one of all those loyally-dispos'd men would have spoken against it But alas all of it passed nemine contradicente My Lord I say that if the matter of it be justifiable as I think it is then all these words will signifie nothing if there were never so many more of them And the presenting and carrying of it to the King that is no Offence that is not so much as pretended to be one And my Lord I think it a very harsh Translation of the word into Latin when the Petition says That the Parliaments Procéedings or the publick Iustice received an interruption to put that word of Obstructionem in truly I think a better word might have béen found to express the soft expression in the Petition and they néed not have put that hard violent word Obstructionem when to make English of it they translated it Interruption But my Lord they do admit I say That the making and presenting of it to the King is not the Offence so much as the publishing of it by which it is exposed to many others besides Now to excuse that the Answer we give is this and 't is that which will carry a very reasonable ground of Iustification in it Certain Citizens that were private Men had petitioned the Common Council and thereby they were importuned to make known the desires of the City to the King and it was reasonable to make known to those Citizens what the Common Council had done to prevent false Rumours which we knew were rife enough in those days and to shew that there was nothing ill in it we did Print it And 't is also all driving at the Common Interest at the Kings Safety the Preservation of the Church and the Government established All this they did desire might be known to these Citizens and all others that enquired about it and therefore they Printed it to evidence that there was nothing of ill intended in it And I do wonder I must confess that this Objection of the publishing of this Petition should be so much insisted upon for they say That the Mayor Commonalty and Citizens of the City of London did it and say not any thing of the Common Council that they did print it Now they that did vote it knew it without printing and 't is alledged in the Pleadings and confessed by the Demurrer That the Mayor Commonalty and Citizens of London that is the Corporation consists of above 50000 Men which cannot well be intended otherwise Why then here is a Petition that is agréed to be well enough lodged as to the Persons that voted it it being the liberty of the Subject to petition and if this had béen only presented to the King though it had béen by those 50000 men nay if it had béen by 10000 men who had béen the Corporation It had béen well enough so it had not béen printed but only kept private to themselves Why then 't is very strange that what is known to all London so great a part of the Kingdom should be lawful but it should be heinously unlawful to send the news of it further It went further than the City of London and therefore 't is such an Offence as shall be a Forfeiture of the Corporation My Lord there is the Case of Lake and King the Petition to the Parliament was scandalous in it self yet it stood protected being presented to the Parliament and it was lawful to print it provided it were delivered to a Committée of Parliament or only to those that were Members though 't is said there that the printing of it is a great publishing for the Composers Correctors and other Persons that are concerned in the Press read every Letter of it But it was answered That Printing is but a more expeditious way of Writing and if he had employed 20 Clerks it had béen a greater publishing than thrée or four Printers Possibly the Printers might not read it or not be able to read it well or not all of them read it at that time Now here my Lord Sure it was lawful to acquaint the Citizens what they had done if you take it to be the Act of the Common Council and the Common Council to be the Representative of the City It was always agreed by the House of Commons that any Member might send the Votes to those that sent them thither and whom they represented they have blamed indeed men for sending the debates but never for communicating the Votes And what they may do by Writing that they may do by Printing Why then might not the Citizens of London who by Custom choose those Common Council men well desire to know and might well know what they had done and then what they might do by Writing they might by Printing for that is but another way though a more suitable and compendious way of exhibiting any thing that you would have go to many And if it be lawful to impart it to all the City and all the City does know it though it does go further 't is no matter for what is known to London may very well be known to all the Nation besides without Offence if it did go further Besides it shall never be intended it was published further or that any others knew of it for 't is said to be published in the Parish of St. Michael Bassishaw in the Ward of Bassishaw and that is in London to the Citizens of London and so they only talked of it amongst themselves Besides the main thing I go upon which is if there be no ill in the thing it self the ea intentione can make no crime by a bare affirmation which we deny and if it might be well said or done it is lawful to Print it and the Publication is no Offence neither My Lord The next point I come to is this That a Corporation cannot possibly commit a Capital Crime or any other Crime against the Peace And I shall offer this Dilemma Either it
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
Sum certain and in all grants that ever were of Pickage and Stallage they were never reduced to a certainty and those are things too that relate to a Market And so I take it to be for Keyage Anchorage and the like for when there are Posts or Places for Ships to which they may be fixed the Owner of the Port may have a compensation for that but that must néeds be uncertain according to the circumstances if a Ship be bigger or lesser if a Ship stay a Month or a Day 't is not fit the same rate should be paid nor is it usually granted by particular words Co. Ent ' 535 526. placit ' 4. The King against the City of London for the Water-Bailage and other things They pleaded only a Right in general and do not say what the Particulars were and yet one of the things demanded in the Quo Warranto was as I said the Water-Bailage which sure if any thing ought to be certain that ought In that Case it was good Pleading though I think I could say more against it than this thing that is in the nature of Stallage so that all that Mr. Sollicitor hath built upon that must I think néeds vanish My Lord I do not think but London ought to be and is as much under the obedience and correction of the King as any City but yet I believe in these Cases of their Customs you will give that allowance and indulgence to it that all your Predecessors have done which is greater than they have given to any other Corporations in the Kingdom and that because it was London that there should be such a thing as a Foreign Attachment I think is hardly allowed in other places I am sure I have known it deny'd in some that a Contract in Writing should be equal to a Book Debt that a Feme Merchant should sue or be sued without her Husband or if he be named he should be only named for conformity You take notice that London is a Port-Town and that Men that Trade there sometimes go beyond Seas and in their absence their Wives trade by themselves and perhaps carry on distinct Trades while they are here And so they may do in other places may be but only for the sake of London do you take notice of these things there and not elsewhere their Penalties that are sued for in their Courts a great many of them are such as would not be well maintained in other Courts or in any other place and yet they are maintained there as namely That their Penalties should be sued for before the Mayor and Aldermen when the benefit of them goes to their use and yet that is allowed in the Eighth Report notwithstanding the grand Objection That they are in some sort Iudges and Parties Rolls 2 p. Abr. Tit. Prescription Letter H. fol. 266. No. 2. 3. The City of London may prescribe to have a Court of Chancery in London of matters tryed in the Sheriffs Court though such a Court cannot be granted by the Kings Letters Patents but the Mayor and Citizens of York cannot prescribe for such a Court because it were very dangerous that such petty Corporations should have such Courts And whatsoever is said by my Lord Hobart in his Reports 63. I do affirm there is no Act of Parliament that erects a Court of Chancety in London or the Cinque-Ports if Mr. Sollicitor had strugled with me about the being or not being of that Act of Parliament I would have agréed with him that there was no such sooner than some that he says are none The Customs of London have béen upheld and I must confess I think that is very strange even against the general Words of an Act of Parliament 2 Inst 20. A Goaler in London may permit his Prisoner that is in Execution to go at large with a Battoon in any place within their Iurisdiction and 't is no escape And so is Plowdens Com. 36. A Citizen of London may set up one Retail Trade though he was bred to another notwithstanding of the Stat. 50. of the Quéen And for a General Rule take that that is said in Palmer 542. Those of London may prescribe against a Statute and the reason is because their Liberties are confirmed by Statute and other Towns are not In Rolls Rep. 1 p. 105. Sprike against Tenant my Lord Coke being then Chief Iustice says We take notice of the Customs in our Courts and other Courts in West-minster-Hall and in London Fleetwood Recorder of London says a very strange thing in 1 Leon ' 284. Hollinshead and Kings Case and in 4 Leon ' 182. That the King's Courts ought to take notice that those of London have a Court of Record for if a Quo Warranto issues to the Iustices in Eyre it does not belong to them of London to claim their Liberties for all the Kings Courts have notice of them And truly I have béen enformed I mean by Copies of Records that when the Iustices in Eyre came to the Tower this was a Priviledg allowed to them they were not bound to set forth their Liberties as others were My Lord I think this as 't is pleaded is a Duty very justifiable and very well payable by vertue of this Custom I do agrée as I said a Toll is properly for Goods sold and this is a Custom for the accommodation of those that brought Goods to be sold and 't is like that 1 Leonard 218. my Lord Cobhams Case a Duty paid for the standing in the Cellar and there that is held to be good In Rolls 2 p. of the Abridgment 123. Letter B. Hickman's Case The Lord of a Mannor may prescribe to have the eighth part of a Bushel of Corn in four Bushels that are brought to the Market within the Mannor in the name of the Toll and that is for Stallage only for it is said there whether it be fold or not And in the same Book fol. 265. the City of Dublin set forth that they are owners of the Port of Dublin and that they maintained Perches in the said River to direct the Ships in the déep Channel and that they kept the Key and the Crane and therefore in consideration of that they prescribed and demanded three pence in the Pound for all Merchandizes in the said Port and it was held good Now I agrée Toll-through that can't be prescribed for simply and generally but by Toll-through I mean as you know for passing and re-passing through only and not for staying but yet even that may be prescribed for too in consideration of repairing a great High-way or a very foul way or maintaining a Bridge and the like And therefore if our Considerations here be as good as that we maintaining those great places may prescribe for this duty as for passing through the Streets though it were no Market There is a famous Case reported in Rolls 1 p. fol. 1. 44. And 't is in 2 Bulstrode and also in
if with more 6 d. a Day That if any refused to Pay he should be amoved from his place in the Market That by Colour of this By-Law the Mayor and Commonalty and Citizens have Extorted great Sums of Money for their own private Gain amounting to Five thousand Pounds per Annum 2. And farther That whereas there was a Session of Parliament holden 21 Octob. 32. C. 2. and continued till the 10th of Jan. 82. and then by the King Prorogued to the 20th of that instant January The Mayor Commonalty and Citizens Jan. 13. in their Common Council assembled malitiose advisate seditiose absque legali Authoritate in se assumpserunt ad censendum judicandum dict' Dom ' Regem nunc Prorogationem Parliamenti by the King prorogued and in the same Common Council Vota Suffragia sua dederunt ordinaverunt That a Petition sub nomine the Mayor Aldermen and Commons of the City of London in Common Council assembled to the King should be exhibited In which Petition it was contained That by that Prorogation the Prosecution of the publick Justice of this Kingdom and the making necessary Provision for the Preservation of the King and his Protestant Subjects had received Interruption And that the Mayor Commonalty and Citizens in the same Common Council did unlawfully malitiose advisate seditiose with intent that the same Petition might be published and dispersed among the King's Subjects to induce in them an Opinion that the King had by that Prorogation obstructed the publick Iustice and to incite hatred against the King's Person and Government and to disturb the Peace did order that Petition containing the said scandalous matter to be printed and thereupon to those ill Ends and Purposes they caused it to be printed and published By which the Mayor Commonalty and Citizens the aforesaid Liberty and Franchise of being a Body Politick forisfecerunt and after by the time in the Information have and yet do usurp it Before I come to the matter I would speak to the Pleading herein and in the subsequent Surrejoinder And for the Pleading in it I think it is as singular and unpresidented as the Matter of it is This Replication supposing the matter had been the Act of the Body Politick and good and sufficient yet as pleaded is insufficient and not warrantable by any Law or Practice ever known It contains 1. An Issue viz. no Corporation time out of mind 2. Two Causes of Forfeiture of the Corporation admitting they once were a Corporation So that though the point in question be but one viz. whether we are lawfully a Corporation or no Corporation though the Plea is single that we are a Corporation by Prescription time out of mind yet here is to try this point 1. An Issue 2. A double Plea alleadging two Causes to avoid it for a Forfeiture This I conceive cannot legally be done though in the King's Case I do agree the King hath great Prerogatives in Pleadings and as far as ever they have been allowed or enjoyed let them be so still but that the King can to the same matter both take Issue and also plead over at the same that I deny It is most reasonable that the Law should be carefull to preserve the King 's Rights but on the other side I think it is not reasonable that the Law should admit or allow as legal any way of Proceeding that should destroy or render the Subjects right indefensible be his right as good as it may be If so be that Mr. Attorney may both take Issue upon the Fact and also plead over I would by your leave ask how many Issues and how many Pleas over the King's Attorney may have Suppose the King bring a Quare Impedit or Writ of Right or any other Action the Defendant makes his Title which is usually done by many Grants and Conveyances from one to another to bring it to himself May the King's Attorney now take as many Issues as facts issuable plead as many Pleas as he pleaseth and all this simul semel 'T is true that in this case Mr. Attorney hath assigned only two Breaches or Causes of Forfeiture but he might if he had pleased by the same Reason have assigned 200. If this may be Are we not all at Mr. Attorney's Mercy If this may not be then how many Pleas Is it in Law defined In favorem Vitae a man may plead a special Plea and plead also not guilty but not several special Pleas but that there is any such Prerogative for Mr. Attorney in Suits betwixt the King and his Subjects I can find no Instance or Authority for it For though it be true as I have said that the King hath great Prerogatives in pleading yet it is as true that this is not boundless but that if in the King's Writs there be mistakes or his Writ or his Action misconceived he shall be bound by it in like manner as Subjects are or shall Partridge against Strange and in the same Book in my Lord Berkley's Case Com. 84. a. 236. a it is expresly said That though the King hath many Prerogatives concerning his Person Debts and Duties yet the Common Law hath so admeasured his Prerogative that it shall not take away or prejudice the Inheritance of any The King hath a Prerogative that he may wave his Demurrer and take Issue or wave his Issue and demurre upon the Plea But saith the same Book he must doe it the same Term Com. fol. 236. not in any other Term for then he may doe it in infinitum without end and the Party hereby may lose his Inheritance and for that the Common Law will not suffer the King to have such a Prerogative These are the words of the Book And in the point that this Prerogative must be made use of the same Term and that the King's Attorney cannot vary in another Term and wave his Issue is 13 E. 4. 8. Bro. Prer 69. 28 H. 8. 2. So in making Title to a Quare Impedit he at the end of the Term waved his first Title and made another But it is true also Rex vers Bagshaw Cr. 1. 347. that as to the point of Waving Demurrers and taking Issue in another Term there is authority that he may so doe but whether it may be done or not in another Term is not material to our case But the use I make of these Cases is to prove that the King's Attorney should not have both together simul semel as in this case he hath done he must wave one before he can have another Plea For those Debates about his varying his Plea by waving his Issue and demurring or waving his Demurrer and taking Issue signifie nothing if he may in one Plea and at the same time take Issue and demurre or plead over to the same matter or point as is done in this case therefore those Books strongly prove that the Prerogative that the King hath
R. 2. Iustice Jones 283. hath it verbatim out of the Parliament Roll. The constant course of pleading the Customs of London is to plead a confirmation of them by this Act of Parliament So that as to this point there is not any one Book or Opinion before this day in favour of what is affirmed that these are not Acts of Parliament and our Plea stands good in Law and the Ordinance and By-Law and Custom good and then no Forfeiture thereby 3. But suppose and admit that this By-Law be the Act of the Corporation be not good and sufficient in Law nor in Law justifiable Quid sequitur Then it is void in Law Then if it be void in Law How can it make a Forfeiture Suppose a Lessee for years or for Life makes a Feoffment but it is not duly executed for want of Livery and Seisin by which it is void in Law Can this make a Forfeiture of the Estate of the Lessee Suppose a Corporation Tenant pur auter vie makes a Feofment which is void for want of Livery duly made Will this forfeit their Estate A void Act shall not destroy or forfeit a precedent Estate A Parson that hath a former Benefice accepts a second Benefice incompatible Dy. 377. b. was instituted and inducted but did not read the the Articles his first Benefice was not forfeit or void hereby because by the Statute the not reading his Articles had made his Institution and Induction void So that then whether this By-Law or Ordinance were good or void in Law perhaps is not much material it cannot make any Forfeiture of the Corporation it can have no such effect for if it be a good and lawfull By-Law no Forfeiture can be for doing a good and lawfull Act. If the Ordinance be not warrantable by Law then it is void in Law if void in Law a void Act can make no Forfeiture Obj. But you received and exacted from the Kings Subjects Summs of Money by this Ordinance Resp Suppose we did and that we had no right to have this money if an Officer by colour of his Office receive more than is due it is Extortion and a Crime punishable But if a Person that is no Officer take money that is not due or more than is his due the Parties injured have their Remedies by Action but this is no Crime for which any Forfeiture or Penalty is incurred by the person that so takes or receives the money Suppose a Lord of a Manour exact or take greater Fines or Summs of Money from his Copyholders or Tenants than he ought they have their Remedies by Actions against those that receive so if a Corporation receive or take moneys supposed to be due but in truth is not how can this Forfeit any thing Obj. But you took upon you a Power and Authority to tax the King's People and to take and receive the money so taxed Resp This is but the same thing only put into greater words It is still but the making of an unlawfull By-Law and thereby appoint money to be paid which ought not or more than should be and the turning of it or expressing it in stately words of taking upon you or usurping Authority to impose upon and tax the King's People Whosoever doth any act or thing he takes upon him and doth also execute the Power and Authority of doing that act or thing which is comprehended in the thing done The making a By-Law or Ordinance whereby more is ordered to be paid than ought or money appointed to be paid where none is due is still all the fact and thing done and if that make no Forfeiture of the Corporation or Crime punishable by Indictment or Information except only as the Statute 19 H. 7. c. 7. which I shall hereafter mention hath appointed for Forfeiture of 40 s. The taking or usurping the Power to doe it cannot be more or effect more than the doing the thing which comprehends it 2. As to the other Cause alleadged in the Replication for Forfeiture the Petition printing and publishing it In the Replication 't is alleadged That a Parliament the 10th of January was prorogued to the 20th of January That the 13th of January the Mayor Commonalty and Citizens of London in their Common Council assembled malitiose advisate seditiose took upon them ad judicand ' censand ' the King and the Prorogation of the Parliament by the King so made and that the Mayor and Commonalty and Citizens of London so in the said Common Council assembled did give their Votes and Order That a Petition in the Name of the Mayor Aldermen and Commons of the City of London in Common Council assembled should be exhibited to the King In which Petition it was contained That by that Prorogation the prosecution of the publick Iustice of the Kingdom and the making necessary provisions for the Preservation of the King and his Protestant Subjects had received Interruption And that the Mayor Commonalty and Citizens of London in Common Council as aforesaid assembled did malitiously and seditiously to the intent the same should be dispersed among the King's Subjects and to cause an Opinion that the King obstructed the publick Iustice and to stir up Hatred and Dislike against the King's Person and Government did order the said Petition to be printed and afterwards they did print it and caused it to be published The Defendents in their Rejoinder to this Breach set forth and alleadg Rejoinder as to the Petition That there was a Plot against the Life of the King the Government and the Protestant Religion and set forth all the Proceedings upon it the Attainders and Impeachments of the Lords in the Tower in Parliament depending the Proclamations declaring the Dangers by this Plot that they could not otherwise in humane Reason be prevented but by the Blessing of God upon the Consultations and Endeavours of that great Council the Parliament and commanding a General Fast to be kept in London the 22d of December and that it was kept accordingly The Proceedings in the Parliament towards the Tryall of the Lords and preparing Bills to be enacted into Laws for preservation of the King and his Subjects against these Plots and Cospiracies That divers of the Citizens loyal Subjects being much affrighted and troubled in their Minds with the apprehension of these Dangers did exhibit their Petition to Sir Patience Ward then Lord Mayor and the Aldermen and Commons in Common Council then assembled containing their Fears and Apprehensions and Expectations from the King and that Parliament did petition that the Common Council would petition for the sitting of that Parliament at the time prorogued And thereupon the Mayor and Aldermen naming them and Commons in Common Council assembled from their Hearts truly loyal to the King and for the satisfaction of the Citizens who had exhibited that Petition and of intent to preserve the Person of the King and his Government did give their Votes and order a Petition
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