Ed. 3. which I mention though I think we have no néed of that in the case to help us if they make a unreasonable By-law 't is void and every man that is aggrieved by it may have his Remedy may bring his Action Shall you supply this by an intendment that they have such a relation That they are the Representatives of the City of London That they have a power to forfeit the Corporation No my Lord by Law they are part of the Corporation but they have no such power to forfeit the Corporation A custom shall never be construed to enable a man to do a wrong and a great wrong it is that they that are trusted and trusted but for a year and trusted but for the good of the Corporation of which they are part should give up the being or what is worse forfeit the being of that Corporation The custom of Kent that makes an Infant capable of making a Feoffment shall never inable an Infant Tenant in Tayl to make a Feoffment so as to work a discontinuance of the Estate Tayl and put the Heir to his Formedon Every illegal Act of theirs is beyond their Commission and a nullity of that is all in respect of themselves and 't is as if they the had never done it as to the Corporation for they are by no means the Corporation for tho they use the Comm Seal in some cases at some times so do the Court of Aldermen in other cases but it is only in other cases wherein they are particularly intrusted If an Act of Common Council say that I shall have such and such Lands of the Cities that Act fignifies nothing but as a direction and advise when 't is under the Common Seal 't is an Act of Corporation and procéeding by advice of Common Council it binds Now my Lord this is the more unreasonable because we know that the practice of the Common Council in London being to advise for all the Inhabitants they are chosen by the unfrée-men as well as others and 't is a strange thing that they should have a capacity to give away the liberty of the Citizens when they are chosen by others as well as them they had no such trust for them nay all trust they had was to kéep their Liberties and not to destroy them Has any Man a trust to destroy himself sure no Man is trusted by God himself to be felo de se And certainly then you can never understand it to be in the nature of a Trust to destroy another and the least Citizen my Lord has as much and as true an interest in the Corporation of the City of London as the greatest And therefore 250 if they had béen much the greater number of the Citizens would signifie nothing to the rest of the Body My Lord I shall only say this little more here is no crime charged relating to them as a Corporation Here is indéed a fine word used that we did this contra fiduciam in corpore politico repositam but all this is but an imaginary Trust the King never gave them a power or authority or entrusted them to make By-laws that were unreasonable he gave them a power to make reasonable By-laws and so he does every Corporation And the same Law that gave them the power limits that power and says if they go beyond that power 't is a nullity And these Acts relate not to them as a Corporation the Petition is not so much as said to be against any trust reposed in the Corporation certainly there never was any such Trust Did ever the King entrust them to advise him about the matters contained in the Petition and if not then 't is not contra fiduciam therefore it relates to particular persons If it be an Offence I hope 't is none of the Corporations But then the levying of Mony that is contra fiduciam they took upon them an illegal and unjust power in the Common Council Suppose it so how does this belong to the Corporation 't is an encroachment upon property 't is the most arbitrary thing in the world Whether they have the Market and the Dominion of it or not is matter of Fact and being pleaded is confessed by the Demurrer And then for the power of making By-laws that is a thing that cannot possibly be taken from them while they are a Corporation 't is that which must be in them as a Corporation like the faculty of Reason in a Man to express his Resolutions by And 't is no more than if a man that has a Market bid his Servant go and remove such as have Stalls there unless they will pay so much That direction is as good a Law as this and as bad a Law as this and no more There is nothing else in it but the direction of the Officers what they shall do in the ordering of the Markets and disposing of the Cities Property Then as to the former method of expressing themselves whether it be by Act of Common Council or under the Common Seal or by their natural Voice 't is all one 't is not a thing that concerns them as a Body Politique But if it were illegal and mistaken I say the Penalty is only that it shall be void What the Common Council nay what the Corporation does within the limits of its Authority is good what beyond that it does is void If I command my Servant to distrain for Rent and he kills a Man in the doing of it this as to me is void but as to himself that is chargeable upon him And what I say of the Common Council I say of the Corporation it self That it is a Capacity and a limited Capacity 't is the act of the Members not of the Corporation if they do wrong The Common Council can act for the good of the City and the City can do no more if they themselves should méet Crooke Eliz. fol. 85. The Quéen makes a Lease for years of Lands to the men of Chesterfield by the name of Aldermen and they by that name grant all their Interest to Clerk says that Book this is void for the Quéen granting them a Lease as to the Aldermen of Chesterfield this makes them a Corporation and gives them a capacity to take but not to grant And so Rolls Abr. 1 p. 513. And therefore no Corporation is to be considered as a Corporation but only when it acts according to the capacity allowed to it and as to the rest it all turns into their private capacity but it affects not the Body nor hath any such relation as to bind it My Lord All the Question here is Whether there shall be such a Person in Esse as this Corporation Whether the City of London shall subsist as such a Person to sue and be sued to plead and be empleaded There is nothing of Government or Misgovernment in the case but 't is all about our Capacity and nothing else whether we shall be
be judged by the discretion of the Iustices upon the true state of the Case before them Now this Case must have all its Circumstances stated and agréed by Demurrer or found by Verdict And so is 4 Rep. 27. b. and Hobart 135. and 174. as in the Case of Copyholders Fines the quality and yearly value of the Land must appear or else there cannot be Iudgment whether it be reasonable or no. In the 13th Report fol. 3. Croke Car. 196. where the Question was Whether the Lord of a Mannor might assess two years and an half value of Copyhold Lands according to the rack-Rack-Rents for a Fine upon Surrender and Admittance and upon non-payment to enter for the Forfeiture as suppose Land it be rented at 20 l. a year here is 50 l. demanded for admittance there it appeared judicially that it was unreasonable and so it was adjudged because the value was certain But who can here say whether the providing of Markets cost 5 s. or 500 l. it is that estimable Perhaps we have over-bought all these Tolls that they call unreasonable we over it to be reasonable the Demurrer agrees it to be so and you must intend it to be so unless the contrary be set forth clearly in its circumstances for he that will have a Forfeiture must shew the circumstances to make it out My Lord Another thing is this to answer Mr. Solicitor in that point I say an unreasonable By-law is no reasonable cause or colour for forfeiting a Corporation admitting it to be unreasonable though I grant it not My Lord Hobart in Norris Staps Case Hob. 211. says that though power to make Laws is given by special Clauses in all Incorporations yet it is needless for that is included by Law in the very Act of Incorporating For as reason is given for the natural Body for the governing of it so Bodies Corporate must have Laws as a Politick Reason to govern them Reason is a faculty in them as 't is in a man and may err and therefore says he if the King do grant Letters Patents of Incorporation to persons and he doth thereby make Ordinances and By-laws himself they are subject to the same construction and rule of Law as if they were made afterwards by the Corporation For the King can no more make an unreasonable By-law than a Corporation but if the King do shall that affect the Corporation and make the Corporation void by way of repugnancy or an instantaneous breach of Condition no it shall not And therefore as they may receive unreasonable Rules from the King without defeating of the Corporation or having their being thereby vacated so they may make unreasonable By-laws without the same danger of destroying the Corporation The cases are very many wherein By-laws have been judged unreasonable the truth of it is there is a great misfortune in the perusing and making of those By-laws by some means or other there is something discerned that still proves an Exception to it as we see in the Case of the Carmen and the Woodmongers their By-law was made and re-made and corrected again and again before it would be made to hold Water in this Court. So in the Taylors of Ipswich's Case and Bradnox's Case which was here lately All these have béen adjudged void but what then In all these Cases it was never said hereby your Corporation is destroyed you have erred in making a By-law and therefore you have lost your being of a Corporation Besides if there were but a colour for it and it were any thing tollerable surely that were enough to make us excusable in such a matter If it has béen received as we agrée it has the Officers are Trespassers every individual of them are suable and any man may bring his Action against them But they that come to the Market think not fit to complain if they did not like the Market they would not come at all and if they did not like the Payment they would not come neither and there is no levying of any thing unless they do come Now my Lord I will admit the levying and the receiving and yet I say this is no forfeiture for here is a mistake of Law or a mistake of Fact by colour whereof Mony is received This by no means will work a Forfeiture of a Corporation for at that rate every Penalty that has béen levyed by a By-law will be adjudged a levying of Mony without Law and so forfeit the Corporation which has not béen done in other cases of By-laws and those much worse than this because most of those By-laws were made for levying Mony upon Men for exercising a Trade and 't is much more to say that you should levy such Sums of Mony upon every stroke of honest industry whereby a Man gets his Livelyhood than that you shall pay so much for your accomodation in my ground for the better vending your Goods This hath béen held good in some cases but in others it hath béen held naught and this hath all béen received and levyed to the use of the City too and so 't is a levying of mony whereby they have a great advantage nay 't is worse still because it is imposed by force and recovered by force but here 't is a voluntary Penalty no force no compulsion only the being removed from their Standings no other Penalty no Imprisonment or the like but if you do not like the conditions you may be gone I desire you to walk out of this Market if you don 't like the price of the Provisions and to be gone from the Stall if you don 't like the price of the Standing We were not bound to provide these Stalls for you but having provided them if you don 't like them you may leave them but here is other cases the man is imprisoned and sued by Action for the Penalty here at any time if you don 't like your may be gone My Lord I am very confident that if this be so that all monies levyed by a Corporation without Law are forfeitures or where the Law is mistaken then I dare boldly affirm that we never were a Corporation two months since London was London but by vertue of some old sléeping By-law or other that has béen set on foot monies have béen levyed which perhaps will not be in strictness allowed good And if all these had béen Forfeitures we had béen in a strange condition not one month or two should pass over us but we had forfeited it and never can there be perhaps a month to the end of the World but we should still be forfeiting And what is said of us may be said of any other Corporation that happens to make By-laws And I am sure in former times there were monies levyed with a witness I mean not the late times of Rebellion only but an hundred years ago strange exorbitances of that nature were committed by London and other Corporations then they went by way of
these days If then no such power by the Charter given if they cannot doe it without power given them shew me their power or else I think I may conclude sure they cannot Surrender the Corporation without power But the Common Council in London that is by Custom and their power is by Custom Then if the Question be what is their power it is answered what they have used and accustomed to doe that they may doe what they have not used or accustomed to doe that they cannot doe for if Custom and Vsage be the authority that authority can go no farther than their Custom and Vsage goes Then put the Question have the Common Council used to Surrender or Forfeit the Charter no body can say it what reason then is there for any man to say they can doe it It is probable that the Common Council in London had first their Institution from some By-Law or Ordinance though now not to be produced but consumed by time But be it that or any other imagined Commencement can it be imagined that those that gave them their Original authority gave them power to surrender the Corporation or forfeit it Suppose that the power given them did authorize them not only to make By-Laws and Ordinances for the good order and government of the Corporation to grant or demise their Lands and Revenues but had some general words in it to act and manage the matters of the Corporation Is it not against all sense to suppose that that which is deputed and constituted for the well-ordering and managing of the Corporation should have power to surrender it Then as the Counsel of the other side argue that because they may surrender they may forfeit By the same reason I hope I may argue if they cannot surrender or dispose of the Corporation they cannot forfeit Next Those Acts of the Common Council are not done neither in the name nor as the Acts of the Corporation nor under any Seal but do import in themselves only to be the Acts of the Common Council The Ordinance That is made by the Mayor Aldermen and Commons in Common Council assembled The Petition is the Petition of the Lord Mayor Aldermen and Commons in Council assembled Their Leases or Grants are in the names of the Corporations and under the Common Seal and the Common Council only Ministerial to the Corporation in ordering managing and disposing all for the benefit and advantage of the Corporation to avoid the Inconveniency of assembling the numerous Body But that any thing that hath but a ministerial power for the service and benefit of their principal should have power to dispose of sell convey or surrender and destroy their principal is no consequence in Law or Reason No Deputy-assistant or Bayliff hath such power if he excéed his authority his Act is void Is it not so with all Authorities and derived Powers what they doe beyond their authority cannot bind those from whom they derive it It cannot be the Act of the Corporation for a Corporation cannot make a Petition no more than they can make a Déed or subscribe a Writing except under the common Seal Corporations cannot make a Lease at will 12 H. 7. 25 26. 9 E. 4. 39. licence a Man to enter upon their Lands or doe any like Act but under their common Seal Nor can they commit a Trespass or Disseisin but by Command precedent or Assent subsequent under their common Seal How then can this be their Act There is nothing in it that imports it should be theirs nor ever intended to be theirs it is not done by them nor in their names but by the Common Council and in the name of the Common Council If we may take notice of what is out of the Record we know that they have in London a greater Assembly than the Common Council viz. The Common Hall wherein the Common Council are no more than others Can the Petition of the Mayor or Mayor and Aldermen in their names be taken to be the Act of the Corporation if that cannot be why should the Petition of the Common Council in their own names be any other than their own Petition as their Ordinance and By-Law theirs and not the Corporations The Case of Corporations takes notice of their Power as Common Councils Rep. 4.77 to exclude the Commonalty and the rest of the Corporation 13 C. 2. cap. 5. The Act allows the Common Councils ordering Petitions But where is it to be found that it was ever said or thought on before that they could forfeit or dissolve the Corporation 4. But supposing all that I have said against me And suppoposing the Acts of the Common Council to be the Acts of the Corporation And supposing those Acts viz. The making the Ordinance and Petition not justifiable or excusable Then the great Point will be whether they or either of them are such Miscarriages or Offences in Law for which the Charter that is the very being of the Corporation shall be forfeit This I call the great Point for I think it to be as great in Consequence as ever any at this Barr as if Magna Charta were at stake for in my apprehension not only London but all the Corporations of England and the Government of England will be deeply concerned in the Question For let us but consider what a vast part of England is concerned in the Corporations of England 1. Ecclesiastical or mixt as Archbishops Bishops Dean and Chapters Parsons Vicars Vniversities Colleges Hospitals of all sorts 2. All the Cities and considerable Towns and Boroughs in England 3. The very Frame of our Government is concerned for one of the Estates of the Kingdom viz. The Commons in Parliament consists of Knights Citizens and Burgesses the Citizens and Burgesses are usually chosen by them that are Free of the respective Cities and Corporations and where not chosen by them yet the Elections are generally under their Power and Influence and the Return made by them Perhaps also a Peerage is a sort of Corporation Perhaps the World it self at least this little World will no longer be able to subsist in health than the due Order and just Temperament of the several Parts and Powers therein are preserved and contain themselves within their own Bounds The taking away or Infeebling any principal Part brings a Lameness and Deformity Pain and Disorder upon and at length confounds the whole The Laws answer their ends whereof the principal is the preservation of the Government which preserves the Laws they cannot subsist one without the other therefore whatsoever it is that tends to the Subversion or leaving at Will and Pleasure that which is so considerable in our Government as Corporations are ought to be throughly considered The better to examine and consider this great Point In the first place the Reasons given on the other side are Object 1. That if Corporations be not forfeitable for their Miscarriages they will attempt and doe
to execute those Offices and to answer the King the Profits Hereby it appears that the course was not to forfeit or dissolve the Corporation They never were so unreasonable for hereby all their Lands and Goods and all the Debts owing by them or to them would all be lost All they did was they put in Officers to preserve the Corporations So that I think there is nothing more plain that though the Liberties were seised and that Officers Custos or Mayors were put upon them yet the Corporations or Bodies Politick or their Liberties were not forfeit or determined If they had been either forfeited or determined could the Writs of Restitution have set them up again The old could never be restored or set up again but by Act of Parliament they might have had new Charters and have been made new Corporations but the old could never have been restored if once forfeited as now imagined So that the Point betwixt us is Whether the Records of E. 1. E. 2. and R. 2. of Forfeitures and Seisures of Liberties supposing the Causes or Offences for which they were seised were very great and provoking as in all probability they were do prove that thereby the Corporations were forfeit dissolved or determined It appears they were not forfeit You can never avoid it If abusing the Franchise or Liberty of being a Corporation be a Forfeiture as you affirm and that they were seised for being forfeit then the Offences that were committed by these Corporations in those Princes times were Forfeitures and consequently the Seisures dissolved the Corporations They could not forfeit and lose their Corporations and yet keep them And that they still had their Being is most evident by the Records of those times shewing that they acted and enjoyed their Corporations under those Seisures only a Custos instead of a Mayor all other things the same That they have in all Ages ever since been allowed to be Corporations by Prescription never denied or questioned That the Acts of Parliament immediately following confirming their Privileges never questioned their having them Never any thoughts of making void any Forfeitures by these Acts or any new Grants but always pleaded by Prescription These things plainly shew that the Offences committed in those times did not forfeit the Corporation and all that dark Authority they have out of those Records is directly against them proves only that these Abuses gave only Cause of Seisure of some Offices but no Forfeiture of the Corporation that still continued Having thus answered those old Records and shewn that they are of Authority for me against them And since it hath been stirred in this Case whether a Corporation or Body Politick be surrenderable or not And insisted upon by the other side that it is and from thence an Argument drawn to prove that if surrenderable 't is forfeitable Whether it be surrenderable or not perhaps is also doubtfull that I think a man cannot argue from it any thing First I am sure there is no great reason why it should be for since that men that are of the Corporation take upon their coming to be free an Oath to preserve the Rights Liberties and Privileges of it and since the Active Members are intrusted for all the other Members that elect and chose them and also for their Successors I cannot see how a man can satisfie himself in so doing Rep. 11. 98. Sr. James Baggs Case They forfeit their Freedom by doing contrary to their Oath and Trust If every Freeman by his Oath and Trust be obliged to seek the Benefit of the Corporation to surrender is against the Oath The Law seems to have a care of preserving Corporations and therefore provides that the taking any new Charter though there be many Alterations in Offices and Names yet doth not surrender the old But were it of any other Franchise the taking anew of the same thing is a Surrender of the old Dean and Chapter of Norwich Case Rep. 3. 73. Jones 266. Fulcher and Heyward's Case séems a strong Case to prove it not surrenderable And though the Bishop did not in that Case joyn in the Surrender that cannot hinder because the Bishop is no part of the Corporation and therefore cannot hinder them to surrender if they will 4 H. 26. 22. b A Vill ' Incorporate by the name of Bayliffs The King de nova Incorporates them by the name of Sheriffs Are their Privileges that they before had gone no Dieu defend saith the Book But this being not my question I intend not to debate it throughly but to kéep to the point of a Forfeiture of a Body Politick or Corporation and farther to examine the reasonableness and justice of this Doctrine of Forfeiture and see how adequate and just it is for that is the thing I perceive desired 1. First Their Position is That a Corporation or being of a Body Politick is a Liberty or Franchise and if abused or misused is forfeited determined and dissolved That I may a little understand this Position and consider of Abuse and Misuse and of the extents and consequences of it By Abuse or Misuse every Act that a Corporation doth that is not justifiable by Law is as I take it an Abuser or Missuser If a Corporation receive any Money that is not due to them if it be by virtue of any By-Law that is a Forfeiture though it be but a Groat What if they by their Common Seal command their Servant to enter into such Lands or Distrein such a man's Cattle for Rent not due Is not this a taking upon them to oppress the King's Subjects and to extort from them their Lands or Moneys where not due this is a Misuser A Body Politick as I have said is but a Person created in resemblance of a natural Person to have a Capacity to take hold and enjoy to particular ends and purposes And hold or enjoy is not possible without acting and all that Act must of necessity be subject to Errors sometimes in their actions as natural Persons are And must it be so penal to them that every Error Misuser or Abuser must be a Forfeiture Can it be reasonable or just in Law that this can be Laws are made for Preservation not for Destruction if every Abuser or Misuser forfeit be it a small Transgression is it either reasonable or probable that any Law shall punish it with destruction of the Body The greatest Offence be it Treason or Rebellion or the least illegal Act Offence or Misdemeanour must have the same measure of Punishment by this Rule and the Law then doth not distinguish If a natural Body or Person hath a Market and orders his Servants to take such Tolls and he takes them What would this Crime be besides Forfeiture of his Market Why should a Corporation then not only in such Case or for any Offence or Miscarriage to the value of a Peny forfeit and lose as in the Case of High Treason his Life