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
Persons but their Masters or those that deputed or delegated them for another purpose they are innocent they shall not suffer by it though no Acts of Parliament had been in the Case If the Acts of Parliament against Seising the Liberties of the City for or by reason of any miscarriage of their Officers or Ministers extend to these Acts of the Mayor Aldermen and Common Council If so be that these Acts were the Acts of the Corporation Yet with Submission if they have shewn a good and legal Right by their Custom and Title to make By-Laws for regulating and settling the Markets and Tolls and that which they have done be as pleaded reasonable and that there was reasonable Ground at that time for their Petition which they have set forth If all these particulars that I have now summ'd up be against me then Iudgment must be against me though I know not what that Iudgment can be But if any one of these particulars thus repeated be for me and against Mr. Attorney then Mr. Attorney can have no Iudgment against the City But Iudgment must be for them Which I humbly pray The next Term viz. Trin. 35 C. 2. Ch. Iust Saunders dying the day of the Iudgment given or the next day after Mr. Iust Jones Iust Raymond and Iust Withens being in Court Iust Jones pronounced the Iudgment of the Court and Iust Raymond and Iust Withens affirmed that Ch. Iust Saunders was of the same Opinion with them and that they all agreed 1. That a Corporation aggregate might be seised That the Stat. 28 E. 3. c. 10. is express that the Franchises and Liberties of the City upon such Defaults shall be taken into the King's hands And that Bodies Politick may offend and be pardoned appears by the general Article of Pardon 12 C. 2. whereby Corporations are pardoned all Crimes and Offences And the Act for regulating Corporations 13 C. 2. which provides that no Corporation shall be avoided for any thing by them mis-done or omitted to be done shews also that their Charters may be avoided for things by them mis-done or omitted to be done 2. That exacting and taking Money by the pretended By-Law was Extortion and a Forfeiture of the Franchise of being a Corporation 3. That the Petition was scandalous and libellous and the making and publishing it a Forfeiture 4. That the Act of the Common Council was the Act of the Corporation 5. That the Matter set forth in the Record did not excuse or avoid those Forfeitures set forth in the Replication 6. That the Information was well founded And Gave Iudgment that the Franchise should be seised into the King's hands but the Entry thereof respited till the King's Pleasure was known in it Iust Raymond and Iust Withens declare that they were of the same Opinions in omnibus And accordingly after Entry made by Mr. Attorney That as to the Issue joined to be tried by the Countrey As to the claiming to have and constitute Sheriffs As to the having the Mayor and Aldermen to be Iustices of the Peace and to hold Sessions quod ipse pro Domino Rege ulterius non vult prosequi Iudgment is entred Ideo consideratum est quod prefat ' Major Communitas ac Cives Civitat ' Lond ' as to the Issue aforesaid betwixt our Lord the King and them joined and as to the Liberties and Franchises aforesaid by them claimed to have and elect Sheriffs and to have their Mayor and Aldermen to be Iustices of the Peace and hold Sessions Eant-inde sine die salvo jure Dom. Regis si al' c. Et quoad dictas separales materias in lege unde tam pred' Att ' Gen ' quam pred' Major Communitas Cives Civitat ' pred' posuerunt se in Judicium Curiae the Court advise till Trinity Term and then pro eo quod videtur Curiae hic quod prefat ' Major Communitas ac Cives Civitat ' pred' forisfecerunt Domino Regi nunc Libertat ' Privileg ' Franches pred' ob causas in Replicacon ' prefat ' Attorn ' Gen ' superius specificat ' quod Placita prefat ' Major ' Communitat ' ac Civium Civitat ' pred' superius rejungendo repellando in ea parte placitat ' materiaque in iisd ' content ' minus sufficien ' invalid ' in lege existunt ad precludend ' dict' Dom ' Reg ' a Forisfactura pred' aut ad Major ' Communitat ' ac Cives Civitat ' pred' ad clamand ' Libertat ' Privileg ' Franches pred' sibi allocand ' adjudicand ' manutenend ' maturaque deliberacione superinde prius habit ' Considerat ' est qd ' Libertat ' Privileg ' Franches pred' sore de seipsis unum Corpus corporat ' Politic ' in re facto nomine per nomen Majoris Communitatis Civium Civitat ' Lond ' ac per idem nomen placitare implacitari respondere responderi per eosd ' Majorem Communitatem ac Cives Civitat ' London pred' superius clamat ' capiantur seisiantur in manus Domini Regis quod prefat ' Major Communitas ac Cives Civitat ' Lond ' pred' capiantur ad satisfaciend ' dict' Dom ' Reg ' de Fine suo pro Usurpatione Libertat ' Privileg ' Franches predict ' Postscript THE Question concerning the Surrender of Corporations or Bodies Politick not being directly in the Case but in the Arguments on both sides insisted on it may not be unnecessary to state that Point and collect what hath been in the Debates or Arguments alleadged on either side that the easier View and Iudgment may be made of it By Surrender in this Question is by both sides meant and intended some Deed or Instrument in writing whereby a Body Corporate or Politick can surrender and dissolve it self It is agreed that a Body Politick may be dissolved either by the Death of the Persons incorporate or their Refuser to act nominate or elect Officers or Ministers so as there remain not sufficient authorized or enabled by their Charter or Constitution to preserve their Being This is admitted to be a Cesser or Dissolution of the Corporation and such a sort of yielding up or Surrender is admitted possible But whether by any Deed or Instrument in Writing it can be done that is the Question intended For the Surrender It hath been alleadged 1. That the Being of a Body Politick is a Liberty Privilege and Franchise that had its Commencement by the King's Charter or by Prescription which supposes a Charter and if it have its beginning and Creation by Charter which is the Kings Deed that grants it by Deed again it may be regranted and surrendered And 't is a Maxim in Law Unumquodque dissolvi potest eod ' modo quo ligatur And instances in Fairs Markets Leets and such like Franchises granted by Charter which say they may be surrendered by Deed or
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
Corporation authorize the levying of War under their Common Seal shall be affected by it in their politick Capacity they are lyable to the Law in that Capacity only and must suffer in that Capacity only And the consequence of that is they are discharged in their private Capacity and this is a Law of Indempnity and Protection for all Crimes for a man cannot be lyable two ways for Treason or Felony or any other Crimes if he be not lyable in his private he is in his publick Capacity if not in his publick he is in his private And what is the consequence of that This is a Dispensation for a Corporation met together in a Body to do any illegal thing or to commit any enormous Crime for the Kings Counsel says this We are responsible for it in our politick Capacity and what Execution can then be done to punish that Corporation with such a punishment as the Law inflicts that is Imprisonment or death any more than upon an Action of Debt brought against them upon a Bond and Non est factum pleaded and found for the Plaintiff they can be imprisoned and the like So that this shall protect and shelter them in the commission of any Capital Offence for if they are to suffer for it as a Corporation you must take Iudgment against them as the Law gives it and how will that be done against an invisible Body What will be the Execution against the Corpus Politicum that can neither see nor be seen I think this mighty plain and I must confess I wonder how it could ever enter into the mind of any man that a Corporation could commit a Corporate Crime I have as it became me in regard of the duty of my place and before that for my own Learning read Stamford's Pleas of the Crown my Lord Cokes 4th Institutes Poulton de Pace Regni my Lord Hales's Pleas of the Crown Dalton's Justice of the Peace and other Books of that Subject but I defie any man to shew me in any of those Treatises concerning Criminal Matters any resolution that ever a Corporation that could be concerned that they should be brought before a Iustice of Peace or proceeded against upon any Law for Treason or Felony or be hanged in their politick Capacity My Lord I shall conclude all my discourse of this kind and I have almost done because I perceive I encroach upon your patience with an observation I have made upon the 19 H. 7. c. And and 't is the Statute that makes provision against Corporations that made By-laws against the Prerogative That Statute says that some Corporations did so now an higher Offence than that sure cannot well be described and there that Law says that those that do so that make such By-laws against the Prerogative shall forfeit for so doing for every Offence Forty pound unless they are confirmed by the Chancellor and Treasurer and Chief Iustices or any thrée of them Now to what purpose was this Statute made if the making of an ill By-law and worse cannot be than a By-law against the Kings Prerogative should be a forfeiture of the being of a Corporation How vainly did the King and Parliament employ themselves to make a Statute that a Corporation should forfeit 40 l. for such an Offence No Man will say they had rather take that Penalty than another when they might have a greater if a greater could be had by Law If they might have had a Quo Warranto and thereby destroyed the Corporation surely they would not have stood for the Penalty of 40 l. for they might easily have got more mony No they might have said We will never pass it by unless you will give us 4000 l. or a far greater Sum nor shall you have your Corporation again without you give us a considerable recompense for it And when the process and the procéedings were so expeditious and easie to come at it in a Quo Warranto as it was easie in those days why should they put the King to the delays in an Action of Debt for so small a Penalty as 40 l. So that I take it to be a direct Iudgment of the Parliament in that Case that no Corporation should or could be forfeited for the making of any By-Law that was irregular though it were even against the Kings Prerogative But to hasten to a conclusion I have all this while my Lord supposed that the Mayor Commonalty and Citizens of London have done this but it is not so this is not the Act of the Mayor Commonalty and Citizens 't is not the two hundreth part of the Corporation 't is but the Act of the Common Council and we have distinguished our selves by pleading that it does not consist of above 250 when the City contains above 50000. I must confess the Council is not taken notice of much in Law as is séen in Warren's Case 2 Crook 540. 2 Rolls 112. Warren being one of the Common Council of Coventry and displaced sued out a Writ of Restitution and upon that Writ it was returned that by custom the City might place and displace ad libitum they there held that the custom was good But it is not so of a Fréeman or Alderman because he hath a Fréehold but a Common Council is a thing collateral to a Corporation and the Office of a Common Council is nothing but only to give assistance and advice which they may refuse at their pleasure In Estwick's Case in Style 32. 2 Rolls 456. it is said That 't is a place méerly by custom and that the Common Council is properly but only a Court of Advice and my Lord you shall never intend more than that they were a Court of advice All the rise of their Power is but by custom and that custom is pleaded to give advice for the benefit of the City and make By-laws for the good of the Corporation and that is confessed by the Demurrer and you shall intend no more than what is opened in the pleading And then 't is evident this was done by a very small part of the Citizens of London and that does no way affect the whole Corporation sure In James Baggs Case 1 Rolls fol 226. it is said That if a Patent be procured by some persons of a Corporation and the greater part do not assent to it that shall not bind a Corporation And if so be a Charter sealed and sent by the King because not accepted in pais by the greater party bind not Shall an Act done by a few and an Act done that tends to a Forfeiture bind the whole in point of their being There is no ground to say that the Common Council represents the City no more than a Council does his Client or an Attorney his Master only as far as is for the benefit of the City they are chosen and entrusted to make By-laws if they offend they are but Ministers and Officers and so they are within the Statute of
9. 21 E. 4. 13. Co. 10 Rep. Sutton's Hospital Case That Corporations have béen Dissolv'd 1 Inst 13. 2 Inst 431 432. Co. 3 Rep. Dean and Chapt. de Norwich's Case That Corporations may be surrendred is plain from the Cases of Heyward and Fulcher Jones Palm 506. That the Causes for which Franchises may be seized are the same for which they are forfeit as for Non-user or Abuser And therefore Forfeiture and Seizure alike For Contempt of the King the Court may seize the Liberties of a Town 2 E. 4. 5. Case de Bayliffs de Reading 15 E. 4. 6. Seizure of Liberties for not Appearance and if not replevyed the same Eyre they are forfeit This shews that the same default that gives Seizure gives Forfeiture A Seizure by award of a Court before Iudgment is but quousque and the Court may restore but a Seizure after Iudgment is final and the Court then cannot grant Restitution 5 E. 4. 7. Where the Liberty is usurp'd and gain'd by Tort there the Iudgment must be an Ouster But otherwise where the Liberty was once of right but forfeited by Abuser there the King shall have it Case de New Malton Iudgment there was only a Seizure Case de Cusack Iudgment fuit penitus excludatur because usurp'd and no title By the Seizure the King is in the possession Sir G. Reynel's Case Co. Rep. And the Corporation cannot act during such Seizure for they have not their Mayor or Officers by which they can act and that is the reason they Petition to be restored in E. 1. ad pristinum Statum Rolls Abridgment Prerog 204. 2 E. 4. 27. 1 Institutes 253. 15 H. 3. Rot. Cl. Memb. 2. Village of Hereford seized into the Kings hands quousque c. By the Seizure the Corporation est Civiliter mortua and cannot act Corporations are instituted for a particular end viz. For good Government and Order They are as an Office erected and the Actors Officers to that purpose All Offices have a Condition in Law incident to them to be forfeited for abuser or mal-user Co. Rep. 8. 44. Co. Rep. 9. Earl of Shrewsburies Case And by the same Law Corporations forfeit for mal-user or abuser No difference betwixt Corporations aggregate or sole and the one forfeit for the same mis-user or abuser as the other And as to the Mischiefs that will ensue if the Law otherwise It is no answer That the persons offending may be punished in their private Capacity For if they still remain a Corporation they may Assemble Consult raise Mony and Men to the hazard and danger of the King and his Government and still continue a form'd Body too much thereby advantaged to serve such purpose Presidents and Cases of Forfeiture Case of Sandwich Pasch 3. E. 1. Rot. 55. upon an Information the Iudgment was Consideratum fuit per Dominum Regem Consilium Domini Regis in Parliamento quod Majoritas Libertas de Sandwich capiatur in Manus Regis Villa de Cambridge Inst 4. 428. M. 8 R. 2. Plea to the Iurisdiction rejected and Iudgment that their Liberties shall be seized Ryly placita Parliamenti 277. Iudgment that the Liberties of Winchester shall be seized quousque and restored again Mich. 18 E. 3. Rot. 162. in B. R. Iudgment against Ipswich that the Custody thereof shall be seized 2 Rolls Prerog 204. divers Seizures 1 Crook 252. it is there cited that the Liberties of the Town of Norwich were seized 27 H. 6. for not suppressing a riotous Assembly there F. Avowry 129. Iter of Lancaster Quo Warranto against Northampton Iudgment of Seizure quousque c. for mis-pleading 2 H. 7. fol. 11. Mich. 15 Car. 1. B. R. Quo Warranto against the Town of Berkhamsted but no Iudgment entred Usual Proceedings in Eyre to Seize Fine and Restore Rast Entries 540. Seizure of a Leet for not having a Tumbrell And all the several Cases and the very Acts cited that prove Seizures of a Corporation prove also that they may forfeit V. That the Acts of the Common Council are the Acts of the Corporation Corporations have by their Charters Prescription or Custom Common Councils to assemble advise and consent they are as Delegates for the rest of the Body they are the Active Corporation they make By-laws and dispose of the Lands and Concerns of the Corporation in them the Corporation acts 9 H. 6. 3. 5 H. 7. 26. 48 E. 3. 17. 1 Cr. 540. Warren's Case Rolls 2 A br 456. Tit. Restitution Obiect That the Stat. 1 E. 3. insisted on by the other side whereby they would have it that the Liberties of the City should not be seized for any the Miscarriage of the Officers Resp In answere to this Objection I. It is no Statute but only a Charter and that Charter not granted to the Mayor Aldermen and Commonalty but only Civibus London II. That it extends not to this Case for by the words Officers and Ministers the Mayor Sheriffs and Aldermen being ordinary Officers of the City by whom the Kings Writs and Precepts are executed are the Persons intended But this extends not to the Mayor Aldermen and Common Council which are the visible and active Corporation Stat. 38. E. 3. c. 10. explaineth this to be so for that is express Mayor Aldermen and Sheriffs and that the Liberties of the City shall not be seized for their miscarriage till their third Default But the Stat. 1 H. 4. c. 15. repeals the former Stat. of 28 E. 3. also the Stat. 1 E. 3. if it were any puts the City of London into the same condition with other Cities VI. That the Facts and Crimes charged in the Replication are Forfeitures They are Offences of a high Nature To oppress the Subject by raising Mony for their own private Gain is quite contrary to the ends of their being a Corporation which is the good Government and Preservation of the Subject but to make use of this Power to oppress and raise Mony for private benefit is a great Abuse of their Authority and Franchase And they cannot excuse themselves as for a Toll For Toll cannot be claimed except it be a Sum certain it must be some little petit Sum claimed for Toll These Sums are too great and unreasonable to be claimed for Toll The Statute of H. 7. that gives a Forfeiture of 40 l. for using an unlawful By-law did not alter the Law that was before It gives a new and further Penalty but takes not away the old And as to the Custom alledged for assertaining Tolls Duties or Sums reasonable to be paid such Custom is unreasonable for the Vncertainty and the Nature of it VI. The Petition is malicious and apparently Seditious stiring up the People to a drinke of the King and his Government Stat 3 E. 6. c. 1. provides against derogating from or depraving the Book of Common Prayer 1 Cr. 223. Sir William Marsham versus Budges against Standalizing a Iustice of Peace Much more is it to deprave Libel
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