levied â—y them to their own use towards their Fee-Farm The University in their Defence prescribe to an absolute and compleat Leet â—atified by 14 H. 8. and confirmed 13 Eliz. but they cannot shew one Court-Roll where they have held a Leet for more Points than we allow them The Charâ—er 14 H. 8. doth not enlarge their old Leet nor grant them any new one it gives them Power to return Process to their Leet but leaves their Jurisdiction as it â—ound it Their own Charter 37 H. 6. plainly proves that at that time they had no absolute and compleat Leet for that Charter recites that at that time they could punish Nusances in the High-ways only by Ecclesiastical Censures and therefore gives them Power to hold a Leet for that purpose and if they had not conusance of Nusances in the High-ways which is the most ordinary Article of Enquiry most certainly they have no compleat Leet by Prescription They say we cannot prove that the Profits of their Leet belong to us but if they consult the same Charter of 37 H. 6. they will need no other Proof of it 5. By the said Charter it is granted that the University shall have Power to make Corporations Orders and Laws to bind all the Inhabitants in the City and may punish the Breaches of them according to the Laws of England or the Statutes and Customs of the University by discommoning or otherwise Whereas the City and University are two distinct Corporations and the one in no sort subordinate to the other and therefore it is not reasonable that the Citizens should be bound by Laws which they never consented to by themselves or their Representatives To maintain their Power to bind us by their By-Laws they say 1st We are a Corporation alwaies subordinate to them 2d That we take an Oath of Fealty to them every Year and 3d Are accountable to them in their Court The first of these is confuted by the Lords of the Council which we have taken notice of before and the other two are gross Mistakes We do not nor ever did take an Oath of Fealty to them nor are we otherwise accountable to them than all the People of England are in being liable to answer there to any personal Action where the Plaintiff is a Scholar 6. By that Charter a Grant is made to the University of two Coroners whereas time out of Mind the City hath had two Coroners who have sate upon all persons as well priviledg'd as free until the making that Charter And therefore the City having an Interest in the Coroners before that Grant the Grant to the University is void and Inquisitions taken under it eoram non Judice The University make no Title to this before the Charter 11 Car. but only say That the Chancellor having before that time Power to try all Felonies the Coroner's Power was lodged in them But they will find if they look back that we alwaies assigned a Coroner for their Members before that Charter 7. By that Charter Townsmen are to be answerable for their Families in buying and selling all Wares where either Party is a Scholar and also for all such persons as they shall harbour in their Houses above three Nights and no Townsman is to build any Cottages without the express leave of the Chancellor or Vice-Chancellor Which are Restraints inconsistent with the Liberty of an Englishman The University justifie these Hardships by their resemblance to the Laws before the Conquest but these Gentlemen should consider that those Laws were then made to secure the Prince and not to enable Subjects to tyrannize over one another they were then apparent Badges of Slavery but necessary to support the Prince in his new Conquests But what occasion have the University for any such Power unless they would have Soveraign Power in Oxford and make the Citizens Subjects and Slaves to their Authority 8. The University doth pretend to have a Power to discommon Citizens at their Pleasure and to inhibit all Priviledg'd Persons to have any Commerce or Trading with them which they sometimes use to the Ruine of the Citizens and their Families The University prescribe to this as an ancient Right but they do not pretend to any Grant of it before that Charter And for their Usage if that alone would give a Right they would then be able to justifie many things which they have reason to be ashamed of But they say the City doth the same thing who make it a Condition of their Leases not to let their Houses to Scholars nor to grind at any other than their Mills We deny that we have any such Condition in our Leases relating to Scholars and for the grinding at our Mills the Covenant doth but pursue the Custom of the City for all persons residing within the City do owe Suit to grind at our Mills and we have at all times in our Courts amerced divers persons for not grinding there 9. By the said Charter it is granted that Scholars their Servants and the Servants of the University shall not be forced to appear at Musters or contribute thereunto and that they shall be discharged of Subsidies Reliefs Impositions Contributions and Sums of Money then granted or hereafter to be granted any Act of Parliament Statute or Ordinance to the contrary notwithstanding 1. The University entitle themselves to these Immunities by Custom and say All foreign Universities enjoy the same Priviledge We know of no such Custom nor are we concerned to enquire what is used in foreign Universities but we may with some assurance affirm that no University in the World doth pretend to exempt so vast a Body from publick Duties as they do Originally the University had no Priviledge at all 28 H. 3. they had a Grant of Priviledge in their Courts for Clerks only but they soon enlarged their Jurisdiction and in the 18th Year of E. â— gave the City reason to complain in Parliament that the University did challenge others to be priviledg'd who were not Scholars and thereupon it was order'd by the King in Parliament by the consent of both Bodies that these and no others should have the Priviledge of the University viz. Clerks and their Servants Parchment-makers Limners that is the Guilders and Painters of Books Writers Barbers and the Livery-men of Clerks But the University soon broke through this Composition and therefore 37 H. 6. we were forced to come to a new Agreement and then it was agreed that these only should have the Priviledge of the University viz. Scholars and Clerks dwelling within the University and their daily continual Servants the Steward Feodmen and Bailiffs Stationers Book-binders Limners Writers Parchment-makers Barbers Cators Manciples Spencers Cooks Lavenders and the Servants of Scholars taking Wages without Fraud Thus we see from how narrow a beginning this Priviledge hath sprung up almost to eclipse the whole Town But they tell us That Priviledg'd Persons who use Merchandise in the City shall be taxed for
Corpus into the King's Bench Henry Samborn then High-Sheriff of Oxford-shire returned That the University had as well the Custody of the City as of the University and the preservation of the Peace and keeping of Watches and the Government of them in the City and University and that the University had power to make Laws for the Government as well by Night as by Day of Scholars and Townsmen And then shews a Statute of the University imposing a Penalty of Forty shillings upon Night-Walkers and so justified these Proceedings against Painter Now the Court of King's-Bench having nothing before them but the Return and their Judgments being confined to it what could they do less than remand the Party But let the University shew how they came by the Custody and Government of the City and who gave them Power to make by-By-Laws for the Government of it The City being baffled by the Return in the King's-Bench immediately applied themselves to the King and amongst other things complained That the University had lately claimed upon Record the Custody and Government of the City and Power to make Statutes to bind the Citizens And thereupon the King referred the Matter in their Petition to several Lords of the Privy Council who by Award dated the 22d June 1612. reciting that part of the Petition did declare in these words following viz. That the University and City were two distinct Bodies and had several and distinct Jurisdictions and that the University hath not the Charge or Custody of the City 〈◊〉 And in another part of the Award these Lords did declare That the Authority of the Mayor was in its kind absolute and in no sort subordinate to the University Now let the University take this whole Case together and they will find they had no reason to magnifie themselves in the Case of Painter but to be as much ashamed of it as they ought to be of some others since But we can put them in mind of a late Case and that is the Case of Dodwell in Easter-Term 30 Car. 〈◊〉 in the Common-Pleas who being sued in the Vice-Chancellor's Court for Forâ—â— Shillings for being out of his House after Nine of the Clock moved for a Prohibition and upon long debate and hearing Council on both sides had a Rule for a Prohibition by the Opinion of the whole Court We do not dispute the Universities Power to walk in the Night it may be convenient for the government of the University for securing their own Members and keeping them within their Colledges but this is a Walk and not a Watch and ought not to restrain the Officers of the City from doing their Duty and keeping Watch and Ward according to the Laws of England Their Predecessors were not so fond of Power they were contented to be secured by the Watch without having the Burthen of it And indeed it is most reasonable the City should be trusted with this Power for they are answerable for all Miscarriages committed within the City in the Night-time If a Man is killed in the Night and the Man-slayer escape the whole Town is to be amerced and if a man is robbed and the Felon escape the Hundred is to answer Now besides the city it self we have an Hundred within the Liberty of the City 3. By the same 〈◊〉 the Clerkship of the Market is granted to the University with free Power to dispose of the Stalls and Standing-places in the Market to have the full Government of the Markets and to take Toll in the Markets The University hath only a Title to the Clerkship of the Market and that did anciently belong to the City but the Markets and the placing of them and all Stallage Piccage and all other kinds of Toll and Profits therein except the Toll of Grain by ancient Usage and Prescription do yet belong unto the City and for the Profits thereof the City doth pay a large Fee-Farm to Their Majesties So that in case that Charter shall be confirmed by Parliament the City will lose the Markets and the Profits arising thereby which is a very considerable part of that Revenue whereby the Corporation is maintain'd and supported The University in their Defence pretend that by the Charters H. 3. and Ed. 3. they have the full Government of the Market and all incidents to it Those Charters which are the only Charters they have before 11 Car. relating to the Markets do grant them only the Assize and Assay of Bread Wine and Ale and the oversight of Weights and Measures They say the City upon Complaint in Parliament desisted from taking Toll and in the year 1429. did in Convocation disown Toll and Stallage and that a publick Instrument was thereupon made but they do not shew by whose order that Instrument was made or that it was ever sealed nor indeed was it ever sealed It seems incredible that the City should renounce their Title to Toll and Stallage and yet be suffered to receive them both throughout all Ages to this very day Surely this matter did not appear to Judge Jones 9 Car. who at the request of Arch-bishop Laud Chancellor of the University and the Earl of Berks Steward of the City did undertake the hearing of this matter and upon hearing Council on both sides did 〈◊〉 That the Market and things incident to it and all Toll except of Grain did belong to the City The University will not allow that the City do pay a Fee-Farm for the Profits of the Market but Dooms-day Book and many ancient Inquisitions in Eire do plainly prove it 4. Power is given to the University by that Charter to hold a Court Leet or view of Frank-pledge as well over the Town and all the Inhabitants as over the University that it shall be a full and compleat Leet and that the University shall have the Perquisites thereof and Power to distrein for the same Whereas the City hath five Leets one absolute and compleat for Northgate Hundred and the four other for the four Wards within the City and therein have all the Power of Leets except 1. The Enquiry into the Assize and Assay of Bread Beer and Wine 2. The examination of Weights and Measures 3. The punishment of Forestallers and Regrators 4. The punishment of putrid Victuals 5. The punishment of those who wear Arms in the University And 6. The survey of the High-ways and Streets which being anciently likewise in the City were 29 Ed. 3. surrender'd into the King's Hands and by him granted to the University And for these six Points the University hath ever since 29 Ed. 3. held a qualified Leet over the City and Suburbs for so much and for so many things and Enquiries as were given to the University 29 Ed. 3. And this Leet is to be served by a mixt Jury one half â—…viledg'd men and the other half free And the Penalties imposed by the said â—niversity in this Leet are to be estreated and sent to the City and to be
seem to take it ill that the City was not left to prove their Surmises against the Matriculation of Wildgoose in their Court and there to receive Justice from their hands But they must excuse us if we thought them too far Parties to be Indifferent Judges And now having followed them through all the parts of their Defence we do Appeal even to the University whether it doth not behove us to oppose the Confirmation of this Charter and whether any of the Particulars which we have charged upon it as new Grants were their unquestionable Rights before But the Author of the Defence tells us That the Proviso in the Bill fully secures the Rights Liberties and Immunities of the City and puts them wholly out of the reach of the Bill That as the Confirmation is by Act of Parliament so is the Proviso made by the same Authority and therefore no greater Power can secure their Rights than that which as effectually restrains their Encroachments And in another place That the force of the Clause is so evident to all Men of Sense and Law that in reference to the City it wholly disables and destroys the Bill But let us consider this Charter and the Bill together and we shall be able to Judge of these Assertions and whether the Author hath offered either Law or Sense to maintain them 1. The Charter grants to the University divers express Powers over the City and many things which the City by good Title are in possession of And the Bill enacts That this Charter shall be good effectual and available in the Law to all Intents and Purposes as amply c. as if the same were recited verbatim in the said Act with a Proviso that that Act shall not be to the Prejudice of the Priviledges and Liberties of Right belonging to the City but that they shall be as free as they were before Now this Act referring to that Charter all Matters comprized in it will as fully be enacted as if they were expresly enacted in the body of the Act without relation to the Charter and then the Case will be no more than if the Act should expresly grant to the University such Estates and such Powers provided â—hey shall have no such Estates nor Powers which is to grant and not to grant which every man will allow to be repugnant and void So that a Confirmation may be by Act of Parliament and yet a Proviso in that Act may be void their Rights may be secured and their Encroachments not restrained 2. The City of Oxford are entituled unto the several Priviledges before specified except the Power of granting Wine and Ale Licences by Usage and Prescription only and therefore they can never have any benefit of this Proviso without proving the particular Usage and Custom at the time of making this Act which in a short time will be very difficult for them to do But were this matter less clear yet we humbly hope that it will not be expected that we should hazard our ancient Liberties and the Freedom of our selves and our Posterity upon a Moot Point 3. Admitting this Proviso would effectually secure our ancient Rights yet will it not prevent the operation of the Statute upon many things which although the City make no Title to yet would they greatly suffer if they should be vested in the University As for instance in Oxford the Market is free for all manner of Grain this Charter grants the Toll of Grain to the University which is void as a Grant if this Parliament confirm it they will have a Right to that Toll which will be very injurious to the City and all the neighbouring Country We could give many Instances of this nature 4. And lastly If the University believe themselves and are in earnest when they tell us that the force of this Proviso in reference to the City wholly disables and destroys the Bill they cannot reasonably desire a Confirmation of this Charter charged with the Proviso for the Proviso according to them will have the effect of an Exception of this Charter for if they confirm this Charter subject to the Proviso then will the Proviso as to all the new Estates and Powers in the Charter relating to the City wholly disable and destroy the Bill which comprehend the whole Charter except the Power of Printing Which and whatsoever else may be to their Advantage and not injurious to us we desire may be specially enacted And if the University are sincere we see no reason why they should be so fond of this Charter unless they would lay the Foundation of Eternal Suits and Controversies We shall not concern our selves to shew that this Proviso takes no care of all the Inhabitants of the City who are Members of neither Body and yet are very numerous nor of all the Gentlemen of the Kingdom who come to Oxford but leaves them subject to all the extraordinary Powers of that Charter But we shall not engage others in our Difficulties nor be Suitors for more than our selves for we cannot fear that we shall be abandoned in this Reign who have been protected by the Government in all Ages Kings have been our Nursing Fathers and the whole Legislature our Protection we have Monuments of Royal Bounty in every Reign since Henry II. and are able to produce the Broad Seal of every King since And shall one Bill destroy the Bounty of so many Kings Shall we be obliged to date our Misfortunes from a Protestant Reign God forbid Their Majesties and this Parliament who have done so glorious things for the whole Nation and have almost sacrificed themselves to do us good will assuredly protect us and suffer us to partake in that common Liberty which they have entailed upon all the People of England FINIS