THE POWER OF THE KINGS OF ENGLAND To Examine the CHARTERS Of PARTICULAR Corporations and Companies Exemplified by the STATUTES and LAWS of this REALM THat the Kings of England have Power to Examine the Charters of Corporations may appearent by the following Discourse which will manifestly make it apparent for if the Prince hath Power on the forfeiture of the Charters and Franchises of an Aggregate Corporation to seize on their Franchises and Liberties how then can it become a Question whether he cannot by the same Authority examine the Charters of Particular Corporations and Companies That by the Laws of this Realm He can do the former is here illustrated and therefore His Power cannot be deficient in the later In Disquisition therefore of this Case WE shall Consider in the first place what a Corporation is A Corporation is either Sole as Bishop Parson 39. H. 6.14 7. E. 4.12 or Aggregate as Mayor and Commonalty A Corporation Aggregate is a Lawful Society of a certain Number of Men Constituted by the King with divers Liberties and Priviledges 11 H. 7.27 Fitz grant 30. Summa Hostiensis Fol. 60. All Corporations have their Origination and Essence from the King otherwise it 's an Illegal Society contrary to the Laws and Statutes of the Kingdom 9 H. 6.16 b. Lib. 10. Fol. 26.33 Inst Part 3. Fol. 202. Lib. 8. Fol. 125. One Corporation cannot make another by Usage or Prescription 40 E. 3. Fol. 3. â—9 Ass 8. Brok. Corporation n. 45. Neither can â—â—e King give License to any one to make a Corporation Lib. 10. Fol. 27. b. But one Corporation may be made out of another by the King 9 E. 3. Fol. 18. The King may if he pleaseth make a limited Corporation or a Corporation to a special purpose as to take and not to give oâ— Conditional to pay Rents c. P. 11. Jac. en le Excheq St. Saviours Case 21 E. 4.59 2 H. 7.13 Dy. Fol. 100. a. If the King grants Hominibus De Dale to be quit of Toll they are a Corporation to that purpose 21 E. 4.55 56. The King grants Civibus de Norwico quod non ponantur in Juratis c. the grant is good and makes them a Corporation 21 E. 4.55 56. 2 H. 13. 7 H. 4.44 When a Corporation is rightly Created all Incidents are tacite annexed to it Lib. 10. Fol. 30. b. St. Saviours Case If the King Creates a Corporation and doth not give any express Power in the Letters Patent to make Laws or Ordinances yet this Power is incident to the Corporation and is included in the very Act of Incorporating as is also the Power to Sue to Purcase and the like but these Laws ought always to be subject to the Laws of the Realm as Subordinate to it Heb. Rep. Fol. 285. Therefore every Law made by any Corporation ought to be 1. Remedium Congruum a fit Remedy to redress the Mischief 2. Bonae fidei rationi Consonum Consonant to Justice and Right Reason 3. Pro Communi utilitate Civium aliorum fidelium Domini Regis for the Publick Profit of the Citizens and other the good Subjects of the King and therefore Ordinances or Laws by them made pro privato lucro and not pro bono publico for private Advantage and not for the publick Good are void Lib. 5. M. 32. 33. Eliz. BR Chamberline de Lond. Case Hob. Rep. Fol. 212. P. 14. Jac. Rot. 907. Norris Stamp A Franchise or Liberty is a Royal Priviledge in the Hands of a Subject of some Benefit Power or Freedom that Persons or Places have above others Crompt Juris Fol. 241. Franchises are real or Personal Franchises Real are Priviledges annexed and given by the King to some Place as County Palatines Corporations Lamb. Eâ—ren lib. 1. c. 9. Plowd Fol. 123. Crompt Juris 137. Franchises Personal which are granted by the King to some Person or Persons as Exemption from Juries from Toll 21 E. 4.55 56. All Franchises were Originally derived from the Crown but now by continuance of Time are Claimed and had in some Cases by Prescription Inst Part 1. Fol. 114. Lib. 9. Fol. 23. Boult Part 1. Fol. 57. Part 2. Fol. 235. Mores Rep. c. 918. If a Corporation Claims some Priviledges by Charter and others by Prescription and so couclude Et eo Warranto utitur it 's good in Law Mores Rep. c. 443. Amongst Franchises some are more Royal as the Franchises of Counties Palatines c. Others less Royal as Markets Fairs c. Of these some lye in doing as to make Justices of Peace to Pardon Felonies c. Some lye in having as the Goods of Felons of Fugitives Wayses Estrays Dy. Fol. 44. Plowd Com. Fol. 169. Others do lye in Discharge as Exemption from Payment of Subsidies c. Henry the Sixth by his Letters Patent 20 H. 6. Granted to Corpus Christi Colledge in Oxon that they and their Successors and their Tenants should be discharged of Payment of Toll for Pontage and Passage in every Place within England and adjudged to be good T. 43. Ch. B R. Enter Wood Hawksel Rolls Abr. Tit. Prerog l. 2. Fol. 198. The Isle of Guernsey for Eight Years was discharged of all manner of Tolls Exactions and Customs Rot. Parl. 14. R. 2. n. 30. Tenants in Ancient Demesnes are free and quit of all Tolls in Fairs and Markets for all things concerning Husbandry and Sustenance Inst Part 4. Fol. 269. 21 E. 4.59 Some Franchises may be Forfeited 1. By a Non-User Some 2. By a Refuser And others 3. By an Abuser or Mis-user 1. By Non-User as those Franchises which are pro bono publico and therefore if one hath a Leet to keep and never keep it or a Clerk of a Market who never attends his Office these by Non-user are Forfeited The Non-user of a Fair or Market is no cause of Forfeiture 2 H. 7. Fol. 11. But the Non-pursuit or Arresting of Felons by him that hath the Franchise it may cause a Forfeiture 3 E. 1. c. 9. 39 H. 6.33 34. 2. Refuser The Abbot of Crowland had a Gaol wherein divers Men were Imprisoned and because he refused to deliver them but detained some of them who were Acquitted of Felony after their Fees paid the King seized the Gaol for ever 20 E. 4.6 The King granted to the Abbot of St. Albans to have a Gaol-delivery and divers Persons were Committed to the Gaol for Felony and because the Abbot would not be at Cost to make Deliverance he detained them in Prison long time without making Lawful Deliverance the Abbot had for that cause Forfeited his Franchise and that the same might be seized into the Kings Hands 8 H. 4.18 20 E. 4.6 Brok. Tit. Forfeiture Inst Part. 2. Fol. 43. 3. Abuser or Mis-user If a Corporation hath Franchises and Abuse or Mis-use them they may be Forfeited Inst Part 1. Fol. 183. The same Law if they take for Murage more than they ought to take by their Grant West
for the well Government of the City 22 Ass Part 34. But Ordinances which are contrary to the Publick Good which is the scope and great End of all Laws for Salus Populi est Suprema Lex are injurious or prejudicial to a multitude and beneficial only to some particular Persons such Ordinances are repugnant to the Law of Reason to which they ought to be subordinate and by consequence void And most of the Ordinances and Constitutions which by the Common Law have been adjudged void as being unreasonable against common Right or purely against Law if their Nature and Quality be considered they have been found injurious to a multitude and prejudicial to the Common-wealth and to have had their commencement and continuance by Oppression and Extortion 1. They have made a Constitution and Ordinance to Levy several great Sums of Money as well upon the said Citizens of London as Strangers which come to the Markets of the said City with Victuals c. These Sums of Money Levyed by them could not be Levyed for Toll Pickage or Stallage incident to their Markets or due by Prescription they do not pretend it to be but by an Arbitrary Power without any Right and against Law they have Levyed the said Sums Every Oppression against Law by colour of any Usurped Authority is a destruction within Magna Chart. c. 29. and it 's the worst of Oppressions that is done by colour of Justice If the King de novo doth grant a Fair or Market Toll doth not pass as incident to it without special words Kelloway Fol. 138.145 11 H. 6.19 9 H. 6.45 T. 38. Eliz. Rot. 936. Heedy Weldhouse And the Reason is because it 's but a private Profit against common Right If the King doth grant a Market with Toll if he doth not appoint how much shall be taken for Toll the Grant is void For when the King doth create a Market and grant such things which may be chargeable to the Subject the Law presumes that the King granted it Pro bono publico and the Subject had Quid pro Quo and greater benefit by it But it 's against all reason to give power to any Subject to impose so much as he pleases upon another by Toll or other Duty and the rule is given Lib. 11. f. 8. in the Case de Monopolies that every Grant and Grievance to the prejudice of the Subject is void 13 H. 4.14 15. Kelloway temps E. 3.134 30 E. 3.15.1 and expresly 9 H. 6.45 it is That in a Prescription for Toll it ought to be set out how much had been used to be taken for Toll 11 H. 6.19 Book tit Patent 11.12 When the King erects a Court he ought to appoint Officers and not the Patentee so that there be no oppression or extortion 14 E. 3.13 14. In the 13 H. 4. the Commons complained in Parliament that an Office was erected for Measurage of Clothes and Canvas with a new Fee for the same by colour of the Kings Letters Patents and prayed that the said Letters-Patents might be revoked For the King could erect no Office with new Fees to be taken of the people who may not be so charged but by Parliament The Royal Answer of the King in Parliament was That the Statutes therefore provided should be observed Rot. Parl. 13 H. 4. n. 43.13 H. 4. fol. 16 17. King Edward the Third had granted to Robert Polcy a new Office of Measuring Worsteads with a new Fee at the petition of the Commons it was resolved in Parliament to be void and afterwards revoked as void by Authority of Parliament Rot. Parl. 22. E. 3. n. 31. Rot. Parl. 25. E. 3. And by the Stat. 34 E. 1. all Burthens or Charges put upon the Subject by the King either to or for the King or to or for any Subject by the Kings Letters-Patents or other Commandment or Order is prohibited unless it be by common consent in Parliament 1 Inst Part. 2. fol. 534. If the King cannot put or impose any Burthen or Charge upon the Subject but by their assent in Parliament From whence do the Mayor and Commonalty and Citizens of London derive their Power and Authority to set and impose such Sums of Money If from the King that Power and Authority is against the 29 ch of Mag and the Statute of 34 E. 1. If by Prescription that Prescription is against the said Statutes and so void in Law therefore it 's an usurpation of an unlimited Power and contrary to Law and Justice and a just cause of forfeiture of their Corporation And that which adds to the Superinjustice of their actings as they have imposed these sums of Money upon the Kings Subjects so they may at their wills and pleasure impose what greater sums of Money they shall think fit Richard D'Wakyes did distrain William de Hay for that he did hold of him certain Lands apud Lin de faud by the service of 10 s. Et per tallagium ei faciendum ad voluntatem ipsius Richardi quia ipsum Willielmum talliavit Anno Regis 9. una fâ— vice ad 2 s atia vice Anno 10 18 d. quod tallagium ei a retro fuit pro praedictis 2 s. per Annum ipsum Willielmum distrinxit super feodem suum pro praedictis arreragiis Adjudged that the Tallage of 2 s. and 18 d. or any other sum uncertain And because it was to be at the will and pleasure of the said Richard D'Wakyes 't was against the Statute of 34 E. 1. and so void M. 11. E. 1. in Banco Rot. 49. Sussex A Custom that the Lord of a Mannor shall detain the Distress taken upon his Demesnes until a Fine be paid unto him for the damage at his will is void Davys Rep. fo 33. a. 2. H. 4.24 and because he is Judge in his own case 5 H. 7. fo 9.44 E. 3. fo 19. An Action of Trespass was brought for carrying away of certain Trees The Def. pleaded a Custom that he of the Tenants of the Mannor which first came to the place when c. should have all the Windfalls there Adjudged that this Custom was void for the incertainty and the reason given was that that lieth not in Prescription which lyeth in the will and pleasure of man for the will of man is uncertain 14 E. 3. Fitz. Batt 277. And this Ordinance of the Mayor and Commonalty and Citizens doth not onely extend to his Majesties Subjects within the City of London but unto Forainers and Strangers which shall come to their Markets within the said City which is not only against Law but a very high breach of their trust which his Majesty hath reposed in them and a misuser and abuser of their Franchises The Lord of a Mannor prescribes to have of every man which breaks the Pound of the Lord there 3 l. the Prescription is not good because Strangers cannot be bound by it 21 H. 7.40 11 H. 7. fo 14. a. 21 H. 7.
fo 20. And any Town may make a By-law amongst themselves that no man there shall put their Cattel within the Commons before Michaelmas upon pain of 20 s. adjudg'd that that binds them but no Strangers shall be bound by it 20 H. 7.40 11 H. 7. fo 14. 21 H. 7. fo 29. And therefore that Ordinance or By-law made by the Guardians and the Fellowship of Weavers of Newbury That no person should use the Art of Weaving within the said Town of Newbury except he had been an Apprentice to the Art within the said Town and had used it there by the space of five years before the said Ordinance or were admitted by the Guardian and Fellowship upon the pain of 20 s. a month is void because it excludes Strangers though they have served as an Apprentice for 7 years to the said Art and because it did restrain the Liberty of the Subject Hol. rep fo 211 212. This Ordinance made by the Mayor and Commonalty and Citizens of London in their Common-council assembled is against Law it restrains the Kings Subjects in their Liberties which are their rightful Inheritance Every one that comes to their Markets with Victuals c. without which they could not subsist must pay c. if not they must be turned out c. Solve aut abi this is pro privato lucro But that Ordinance for carrying their Broad Cloth before sale thereof to Blackwel-hall to be searched was pro hono publico and for that reason did oblige Strangers that did not bring their Cloth to be searched lib. 5. Chamberlain of Londons Case Money cannot be raised or charged upon the Subject but by Act of Parliament If the King himself cannot do it I am sure no Corporation can having no power Authority or Jurisdiction but what is originally derived from him It 's not the quantity of Money levied by them but the manner of the raising of it by a Legislative Power unjustly usurped in their Common-council It was not the quantity of the Ship-money but the raising of it without a Parliament which was the Crime Quos una culpa nectet eos una poena plectet and that must be the Seising of their Liberties A Man takes two pence for every Barrel of Beer which shall be Landed at a certain place near to the Sea this is not lawful although it be upon his own Land for this is to Levy a new Custom which he could not do Rolls Abridg. tit Praerogat fol. 571. An Information was against Morgan for raising of two pence for every parcel of Beer landed at Crockernepit in the County of Sommerset near Bristol he was found guilty was Fined one hundred Marks and imprisoned by Judgment of Court upon one of the Articles in Eire That it shall not be lawful for any person to raise a Tax Rate or Custom upon the Subjects of the King though on their own Land P. 11. Car. 1. Rolls Abridg. Tit. Praerogat fol. 571 2. The Contriving Imprinting and Publishing of the Petition to be presented to his Majesty containing much scandalous Matter in it and Reflections upon his Government I agree it 's lawful for any Subject to Petition to the King for redress in an humble manner when he finds himself grieved for access to the Sovereign must not be shut up in case of the Subjects distresses but on the other side it 's not permitted under colour of a Petition and Refuge to the King to make ill Reflections on his Majesty and his Government If a Scandalous Letter be sent and delivered to a person who received it though the party which sent it did never publish it yet it 's punishable for the King and Common-wealth are interessed in it for such Letters do tend to the breach of the Peace and to the stirring up Challenges and Quarrels and therefore the Means of such Evils as well as the End are to be prevented Hob. Rep. fol. 62. Barrow's Case If a Man Imports Books writ beyond Seas against the Kings Supremacy knowing the effect of them and offer them to any Subjects he is within the danger of the Statute 5 Eliz. So of those that teach the Contents and affirm it to be good the same of him that conveys the Books secretly to his Friends to perswade them to be of that opinion the same of them that Print and offer such Books within the Nation Dy. fo 282. T. 6. Car. 1. An Information was Exhibited against Bonham Norton his Son John Norton Lee May Tho. Smith c. for contriving a Slanderous Petition to the King and for charging of the Lord Keeper with a Bribe for making of a Decree and they were Sentenced T. 6. Car. 1. Doctor Leighton was Sentenced for Making Imprinting and Publishing of a detestable Book containing in it Treasonable Matter against the King and inviting the Subjects to Rebellion Perkins was Sentenced to pay One thousand pounds and Imprisonment during his life because he dispersed a Seditious Letter against the Loane of King Charles the First for the King sent to the Free-holders to lend to him Money Huttons rep fo Veritas convitii non excusat convitiantem a poena Penry for publishing Scandalous Libels against the Church-Government was Indicted Arraigned Attainted and Executed P. 35. Eliz. inter Placita Coronae in Banco Regis New Book of Entries fo 252. Williams a Papist and Barrister at Law Indicted of High-Treason for writing two Books the one called Balaams Ass and the other called Speculum Regale because he affirmed the King should dye before 1621. and for saying that England was the Habitation of Devils and that it is the abomination of desolation By all the Judges it was High-Treason at Common-Law for these words import the End and the Destruction of the King and his Nations and that false Religion is there maintained which is a motive to the people to Rebellion And although the Book was enclosed in a Box sealed up and conveyed secretly to the King and never published yet he was Attained for High-Treason and Executed at Charing-Cross P. 17. Williams of Essex Case Rolls rep part 2. f. 89. In the time of Henry the Eighth upon the Dissolution of the Monasteries there was a great Rebellion in the North of England the Dean of Windsor being told of it said The King had brought his Hogs to a fair Market and a parson hearing of it said Principibus obsta serò medicina paratur because the words of the Dean had an ill Reflection upon the Government and of his Majesties Management of the Affairs of State they were both Indicted of High-Treason for speaking the words and were found guilty and the Dean was attainted of High-Treason but the Parson because he was so ignorant as many times Ignorance is the best Sanctuary that he did not know the difference between Principiis and Principibus he was Reprieved and obtained his pardon of the King Every Libel against a private person deserves severe punishment for it incites