If the same produced under the Great Seal put to it when made be not sufficient Evidence to satisfie what can be Trin. 1. E. 3. r. 61 62. 2. But in this Case it is enrolled upon record also Inter placita Corone penes Camerarios in Scaccario it is enrolled there Obj. But perhaps it may be objected also That this was no Act of Parliament but only a Grant or Patent in Parliament because 't is that the King de assensu Prelator ' Comitu ' Baron ' ac totius Communitat ' regni in praesenti Parliamento Resp That Acts of Parliament observe not any certain Form Jones 103. In the Case of the Earldom of Oxford express that there was variety in Penning Acts of Parliament in ancient time Dominus Rex per Consilium fidelium subditor ' suor ' statuit and other forms there are yet good Acts. But that they were anciently in form of Patents or Grants in Parliament Magna Charta C. 1. is in form of a Charter or Grant The form of the Act of Parliament 11 E. 3. for creating the Prince Prince of Wales begins Edwardus Dei gratia c. in form of Patent Princes Case R. 8. fol. 8. and is De communi assensu consilio Prelator ' Comitu ' Baron ' aliorum de consilio nostro in presenti Parliamento and adjudged a good Act of Parliament and the Authorities and Reasons to prove it an Act of Parliament are fol. 18 19 20. so full that it might be thought that this Objection would never have béen made And that this is in the same form that all the rest of the Acts of this very Parliament of the 1 E. 3. are Membr the 17. appears by the Patent Roll of the same Parliament A Charter granted by the King de assensu Prelator ' Comitu ' Baron ' Communit ' Regni in Parliamento apud Westm ' to enable the City to apprehend Felons in Southwark An Act in the same form for the annulling the Conviction of Treason that was against Roger Mortimer in the time of E. 2. Rot. Claus 1 E. 3. M. An Exemplification then entred of an Act made in the same form in the same Parliament Rot. Pat. 2 E. 3. P. S. 1. M. 17. for the annulling the Attainder of Thomas Earl of Lancaster attainted tempore E. 2. Divers other Acts of Parliament in the same form made 1 E 3. Rot. Pat. 2 E. 3. P. S. 2. M. 11. Inst 2. 527. 639. for annulling divers other Attainders that were tempore E. 2. so that as to this Act of Parliament 1 E. 3. I think the Objections are answered and that it is an Act as pleaded And as to the other Act 7 R. 2. that that is no Act of Parliament only a Prayer of the Commons that there might be a Patent granted to the City confirming their Liberties licet usi vel abusi fuerint and the answer was Le Roy le vieult and object for Reasons against that being an Act of Parliament Obj. 1. It wants the assent of the Lords 2. It is only a Prayer of the Commons to have their Liberties confirmed and the King's answer le Roy le vieult but nothing done to confirm it Resp 1. As to the first Objection Supposing it true that there is no mention made of the assent of the Lords yet the Act is a good Act. 1. It appears to be in Parliament ad instantiam requisitionem Communitat ' Regni nostri in presenti Parliamento 2. The answer in Parliament that is given by the King to the making all Laws is given to this le Roy le vieult 3. And next it is admitted to be upon the Parliament Roll 7 R. 2. Num. 27. I have before said that Acts of Parliament are not in any certain form sometimes entred as Charters or Grants sometimes as Articles sometimes and frequently as Petitions the Books I have already cited prove it But according to the Course of Parliaments let it be in what form it will let it begin in which House it will yet it must go through both the Houses of Parliament before it can come to the King for his Royal assent If either House rejects or refuseth there it ends it comes not to the King nor is the Royal assent in these great operative words Le Roy le vielut in Parliament given to any thing but what the whole Parliament have assented and agréed unto So that this is an Objection grounded upon a Reason contrary to all the course of Parliaments which shews that the Lords assent was to it though not mentioned Selden's Mare Claus 249. gives a full Resolution herein Certissimum est saith he that according to Custome no Answer is given either by the King or in the King's Name to any Parliamentary Bills before that the Bill whether it be brought in first by the Lords or by the Commons hath passed both Houses as it is known to all that are versed in the Affairs and Records of Parliament And in the Prince's Case before cited there the Act is said to be de Assensu Consil ' of the Lords but doth not name the Commons And this Answers the other Reason also viz. That it should only be a Prayer and Petition also to have a Charter of Confirmation granted For since the Forms are in manner of Petitions since the Royal Assent or Words Le Roy le vieult is never put to any Bills in Parliament but such as are thereby made and passed into Laws the giving the Royal Assent is sufficient in this Case to prove it a Law But for farther Evidence 1. We have it under the great Seal of King R. 2. thus penn'd Ad instantiam requisitionem Communit ' Regni nostri Angl ' in presenti Parliamento nostro pro majori Quiete Pace inter Legeos nostros focendis pro bono publico de assensu Prelatorum Dominor ' Procerum Magnat ' nobis in eodem Parliamento assistentium c. So that hereby it is fully proved and shewn that though the Assent of the Lords be not mentioned in the Copy yet that it was had and under the Great Seal of R. 2. it so appears We have also in our Book of the Acts of that time in the City Lib. H. f. 169. a b the Proclamation made upon the first promulging this Act in the time of Sir Nicholas Brembre Lord Mayor and therein it is also entred in the same words as before under the Great Seal of R. 2. de assensu Prelator ' c. Next our Books and continual Practice ever since 'T is true that in the 7 H. 6. fol. 1. when 't is said that the Customs of London were confirmed by Statute Quaere what Statute but it is not there made a Quaere whether this were a Statute Instit 4. 250. Rep. 5. 63. Rep. 8. 162. all say that the Customs of London are confirmed by Parliament 7
I understand not for nothing can be more flat and plain against him If so be we should forfeit our Toll or our Market be it so nay if we should forfeit our Liberty of having a Common Council what then how is it possible to bring it up to a Forfeiture of the Corporation You shall forfeit a Court of Pypowders if you forfeit your Market because 't is incident to it and dependent upon it and subject to what dangers the Market it self is subject to but the being of a Corporation nothing can transcend that To be sure what is incident to it cannot transcend it 't is but a Subject to that which is is superiour For example sake my Lord I will cite you a Case which is the Case of the City of London too about the measurage of Coals It is Sir Julius Caesar's Case 1 Leon ' 106. And I choose to cite that Book for though it did not come out with your Lordships Authority yet my late Lord Chancellor gave this just accompt of it That it was one of the best of our later Reports Sir Julius Caesar libelled in the Admiralty against the Officer of the City for measuring Coals upon the Thames Fleetwood came to the Bar and prayed a Prohibition and Edgerton the Solicitor on the other side complained that the Mayor of London did take a Fine for this measurage and made an Office of it and this he conceived was Extortion which is the thing complained of here in so many words and being upon the Thames should be punished in the Admiralty As to that the Iudges replyed by no means and Wrey Gawdey said if it be Extortion in the Mayor there is no remedy for it in the Court of Admiralty but in the Kings Courts and it shall be redressed here in a Quo Warranto says Gawdy 'T is true a Quo Warranto might well have been brought for redressing that Extortion but it could not mean thereby that the Corporation should be dissolved And that it was so understood is most plain for accordingly a Quo Warranto is brought You have it in Cokes Entries fol. 535. and 536. placit ' 4. And the City of London appeared and pleaded and prescribed to it and thereupon the Attorney General that then was my Lord Coke himself was satisfied and confessed their Title and Iudgment was given for them and since it hath been held good and they have enjoyed it in peace and this I hope is a good Example for Mr. Attorney to follow in this Case My Lord I come now to that part which I come least willingly to I mean that of the Petition and that which I have to say in it is this my Lord. First I say That this Petition is justified in the Pleading and I hope it is very justifiable if it were but excusable 't is enough That it is justifiable to Petition the King in our necessities and extremities is plain from what my Lord Hobart says fol. 220. He says it was resolved by the Court in Renham's Case that it was lawful for any Subject to Petition to the King for a redress in an humble and modest manner For as 't is there said Access to the Sovereign must not be shut up in case of the Subjects distresses Now the Common Council are not less priviledged than any other sure but rather more in this kind of Addressing and Petitioning I cannot tell what Crime to make of this there is so much alledged against us I did very well observe truly and would always observe and remember in all such Cases what my Lord-Kéeper here said to your Lordship That Council should not so much speak as if they would abett the Guilt of their Clyent rather than advocate for their innocency My Lord If the words themselves that are alledged are not words that are unlawful to be delivered or spoken then all this that they are dressed up with of the intention to censure the King and to bring him into dislike with his People all that must go for nothing and are not to weigh in the Case Now the Words are these That there was a Prorogation and by means of this there being depending so many Impeachments of Lords and others and Bills in the Parliament in both Houses which could not be perfected any where but there the prosecution of the publick Iustice and the making Provisions necessary for the preservation of his Majesty and his Protestant Subjects received an interruption Now my Lord I conceive these Words are not Words that in themselves are unlawful And for that your Lordship will be pleased to consider our Plea I néed not repeat it you have it before you If they are in sense and substance the same Words that have béen spoken by the King and the Lords and Commons in Parliament he that will not be satisfied with that Authority will not be satisfied with any Then what do we say We say that the prosecution of the publick Iustice received an interruption does not the King say so and more in his Spéech we have set forth wherein he recommends it to both Houses that Iustice may be done What is the meaning then but this if the further prosecution of the Offenders goes not on Iustice is not done and so we speak but the Kings Words We say they are not tryed or they were not tryed they themselves complain of it to this day and therefore Iustice did receive an interruption I am confident without reflection that Honourable Person my Lord Danby in this point hath said Words much more liable to exception though truly Words that I believe deserve no rebuke He has complained that Iustice was not done in his Case because he was not tryed and that when he desired to be tryed too but his Liberty taken away and he forfeited that which was dearer to him than Lands or Honours his Health whereby he endangered his Life and lost all the comforts of Life If it were lawful for him to say as certainly it was That Iustice was not done in his Case why might not the City say so Either these Lords ought to be condemned or they ought to be acquitted 't is hard to say Iustice is done when they lie so long in Prison and are not either acquitted or condemned Then we say this That the making Provision for the preservation of the Kings Person and of his Protestant Subjects received an interruption To this part we give this Answer We set forth That there were Bills depending in the Parliament for this purpose and that is agréed to us by the Demurrer and that these Bills could not pass into Laws any more than the Lords could be tryed but in Parliament Why then if so be it be so that the matter cannot be done nor provision made but as that Proclamation that issued for the Fast said and as the Addresses of both Houses for the Fast do say By the blessing of God upon the Counsels of King and Parliament if
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
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