is by waving or relinquishing one and chusing the other and therefore not to have or use all together and at once as is done in this case The King shall be bound by one Issue 9 H. 4. 5. he shall not have divers So that as this Replication is at the same time simul semel to the same matter to take Issue that we were not a Corporation time out of mind and to plead two matters of Fact for Forfeiture is the first attempt that ever was of this kind and in its consequence confounding the right of the Subject and leaves him perhaps only but a colour of Law but most difficult if not impossible by it to be defended let his Right be what it will if Issues and Pleas without number may be by the King's Attorney joined and pleaded and the Subject must answer the very charge besides will undoe the Subject and wrest him out of his Estate by the Law that should preserve him This point if I mistake not will deserve consideration if it be new and the first project for so I beg leave to call it of its kind for I know no Book or Instance of the like unwarrantable by old Laws and Rules of Pleading The old Laws and ways are good and safe Eventos varios Res nova semper habet Perhaps the consequence and mischiefs attending this way of joining Issue and at the same time pleading over as many Pleas as Mr. Attorney pleaseth are as great as any other in this case and not less to be minded or regarded As of the one side great are the King's Prerogatives and most necessary to be preserved and maintained so it cannot be denied but that the Law hath set Limits and bounds which must be kept and observed in pleading which is the Method and Mean of preserving and determining Rights without which no man can be preserved by the Law But supposing that several Causes or Forfeitures may be assigned yet they must be all Facts done at the same time or they confound one the other for if the first Fact was a Forfeiture thereby the Corporation was determined and at an end and the subsequent could not be the Act of the true lawfull Corporation for that was forfeited determined and gone by the precedent Forfeiture And if so that it was forfeited and gone by the precedent Act viz. the making the Ordinance Septemb. 17. 26 C. 2. Then how could it act and forfeit it self six years after in the Year Thirty two This seems impossible But to avoid this Mr. Attorney in his Argument doth hold That though the Act be a Forfeiture yet till there be a Iudgment or something on Record to determine the Corporation and in this case the Iudgment to be given shall doe that Work till such Iudgment the Corporation remains Then taking it as Mr. Attorney will have it and as the truth is supposing a Forfeiture untill that Forfeiture appear on Record or that there be some Office or Inquisition that finds it and that return'd and on Record were it of any Estate in Lands Tenements Hereditaments or Offices it is not determined or vested in the King but continues This is quite contrary and contradictory to all that you have done and the very Foundation of this Quo Warranto for if you admit as then you do that the Forfeiture ipso facto did not determine but that it must be this Quo Warranto or Iudgment upon it that must determine the Corporation and that the Corporation notwithstanding such Act was or is in being then they have not usurped upon the King they are the same Corporation they were they have the same power to act they had they have the same Warrant and Right they had only subject to a Iudgment against them that may be given hereafter for a Fact already past for since that an Vsurpation is a sortious and wrongfull using a Liberty or Franchise upon the King without lawfull Authority Then Supposing such an Act of Forfeiture doth not ipso Facto determine or dissolve but a Iudgment or some other Act of Record must first be had before such dissolution then till such Iudgment or Act of Record they are lawfully a Corporation in being and their lawfull Warrant remains and they did not nor could so long usurp their Being and then hereby is your own Information destroyed and abated For there you say that they did by the space of a month without any Warrant use and usurp the Liberty to be a Corporation But hereby you grant that it was not used unlawfully nor usurped but notwithstanding the Forfeiture the Corporation lawfully continued unless there had been some Iudgment or other Act on Record to determine it This I rest upon as impossible to be avoided Is it possible that a Corporation or Body Politick can at the same time be lawfully and rightfully such and not lawfully and rightfully such Can right and wrong be the same Can the same thing rightfully be or have its Being and at the same time not rightfully be or have its being Can we possibly be at the same time viz. the time mentioned in the Information a lawfull Corporation and yet an usurped or unlawfull Corporation Could we then have a lawfull and rightfull Authority to be a Corporation and at the same time have no lawfull or rightfull authority to be so These seem to be contradictions and if so are the most difficult of all things to be believed or imposed therefore to be plain in this matter either tell us that we are yet till Iudgment a Corporation or Body Politick lawfully and rightfully or not If you say we are then as yet we are no unlawfull Corporation nor have usurped to be one as in your Information and Replication you have alleadged We have not then unlawfully taken upon us to be a Corporation and therefore cannot have Iudgment against us or be fined for having or being that which we lawfully have or be as you now admit we are consequently you must go some other way you have destroyed your own Information and can have no Iudgment upon it But perhaps this concession of Mr. Attorney that the old and lawfull Corporation and Body Politick is still in being and shall so continue till by Iudgment or Matter on Record determined may only be some sudden thoughts for not only the Matter but the whole Proceedings in this Suit being at least unexperienced and perhaps much out of practice it might easily happen that in an hasty Proceedings all things might not be thought on nor all the Objections or Inconveniencies foreseen and perhaps the consequence of the Position that a Miscarriage or doing an unlawfull Act should ipso facto forfeit the Body Politick or Corporation might make a man start and cast about how to avoid it and flying from one danger run into another These are things ordinarily happening and perhaps have in this case happened and were the cause of this confession that the old
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
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
the time being and of certain Freemen not exceeding 250 annually elected to serve as Common Council-Men and are called the Commons of the City That time out of mind there hath been a Custome that the Mayor Aldermen and such Citizens so elected to be of the Common Council according to custom have been accustomed to make By-Laws and Ordinances for the better regulation of the publick Markets for appointing times and places and assessing and reducing into certainty reasonable Tolls Rates and Summs of Money payable for Stalls and Standings in the Market For any things appears upon the Record this is all they have power to doe Non constat to the Court that they have any other power or authority over Lands Estates or any thing else Next If this which in the Rejoinder is alleadged of the Being and Power be true and so admitted then what they did in making the Ordinance was done by good and lawfull power and authority and then can be no Offence But if to make the Ordinance be an Offence and an unlawfull Act you deny the Custom to be good and say the Custome is void and against Law and for that Reason the Ordinance illegal Then non constat that they had any power at all to doe any thing and then a Common Council to advise without power to doe any Act and if so How can a parcel or part of a Corporation not authorised to doe any Act doe an Act that shall forfeit Suppose a particular Company as the Mercers had done this could this be a Forfeiture But if to avoid this you will say that the Court shall take notice of the Common Council of London to have the management of the business of the Corporation belonging to them This I think the Court cannot doe and I cannot see how possibly they can as a Court judicially take notice hereof Suppose our Question had been concerning another Corporation could the Court then as a Court judicially have taken notice of the Power or Authority of their Common Council Mr. Sollicitor in his Argument held That there was no difference betwixt London and another Corporation except that London was the biggest Then put the case of any other Corporation could the Court judicially have taken notice of their Power or Interest without having it specially set forth Is it possible the Court can since they differ one from the other as much as their Charters or Constitutions do differ of which there is hardly to be found two in England that do agree in their Powers If it had been of another Corporation of necessity the constitution of the Common Council must have been set forth If you are upon a By-law made by any other than the Body Politick it self must not the Power and Authority of those that made it be shewn and set forth in Pleading in any case where there is occasion to use it How otherwise could the Court judge or determine of it So that taking the Law to be as the other side saith that London differs not from any other Corporation it is no where alledged in the Pleading that they have Power to make By-Laws for the ordering and governing the City or that they can bind all the Corporation in sale or disposition of their Lands or have the power of the common Seal Therefore when the King's Counsel argue from these Powers their Power of forfeiting they argue quite out of the Record they have no where alleadged or pleaded what they are or what Power they have as they should have done if they had so intended So as to this particular here is nothing before the Court nothing upon Record to shew how or which way the Body Politick should be concerned in these Acts of about two hundred and fifty of their Members called the Common Council Wheresoever any By-Laws or Ordinances are pleaded the Power to make these By-Laws or Ordinances is pleaded and so are all particular and derived Authorities whenever occasion to plead them and necessary they should be so For 't is Fact that the other side may and ought to be at liberty to deny it if he sée cause and therefore if they will have it that the Common Council have abused some Power or Authority they have thereby to forfeit the Corporations they ought to have shewn it to say that notice shall be taken or it shall be intended or presumed is in truth a Presumption upon the Court as if the Court should take notice of intend or presume what the King's Counsel would have which the Court cannot nor will doe more in this than in other cases But supposing the Court will take more notice of London than any other Corporation and will take notice of the Common Council there and of their Power and Authority and I will suppose as the other side do That they have the Power of making By-Laws of leasing granting and managing the City Lands and Revenues and of sealing with the common Seal and that this they have by Custome Then surely say the other side they have the Power of surrendring and forfeiting the Corporation If I should answer surely and without doubt they have not this would not argue they have not but the Argument should come of the other side to prove they have they have not nor can produce any Case or Opinion to prove it and the very thought that they could is so new that I believe none can be found like it But let us consider the nature of this Thing a little par ticularly though general Discourses are most easie and florid-yet perhaps a particular Enquiry may best discover Admit that they have the Power the other side say they have yet they are not the Corporation but a part constituted for these particulars ends and purposes for which they are impowered Corporations had their Creations by Charter that gives them their Being and the Form Method and Power of Action Suppose that the first Charter of Incorporation that was granted to London did grant that the Citizens should be incorporate and a Body Politick by the Name of Mayor and Commonalty and Citizens that there should be a Mayor so many Aldermen and so many of the Citizens annually elected that should be a Common Council and that they should have Power to make By-Laws to demise or grant their Lands under the common Seal in the name of the Corporation If they doe any Act not within their Commission is not that void Suppose a Grant made to the Common Council would not that be void Suppose a Grant made by the Common Council in the name of the Common Council under Seal or in the name of the Corporation but not under Common Seal is not all this void This I only instance to shew that their Charter and Authority is their Power and Warrant they are to act by did ever any man hear of or sée a Charter giving the Common Council power to Surrender the Corporation or was it ever thought of before
these days If then no such power by the Charter given if they cannot doe it without power given them shew me their power or else I think I may conclude sure they cannot Surrender the Corporation without power But the Common Council in London that is by Custom and their power is by Custom Then if the Question be what is their power it is answered what they have used and accustomed to doe that they may doe what they have not used or accustomed to doe that they cannot doe for if Custom and Vsage be the authority that authority can go no farther than their Custom and Vsage goes Then put the Question have the Common Council used to Surrender or Forfeit the Charter no body can say it what reason then is there for any man to say they can doe it It is probable that the Common Council in London had first their Institution from some By-Law or Ordinance though now not to be produced but consumed by time But be it that or any other imagined Commencement can it be imagined that those that gave them their Original authority gave them power to surrender the Corporation or forfeit it Suppose that the power given them did authorize them not only to make By-Laws and Ordinances for the good order and government of the Corporation to grant or demise their Lands and Revenues but had some general words in it to act and manage the matters of the Corporation Is it not against all sense to suppose that that which is deputed and constituted for the well-ordering and managing of the Corporation should have power to surrender it Then as the Counsel of the other side argue that because they may surrender they may forfeit By the same reason I hope I may argue if they cannot surrender or dispose of the Corporation they cannot forfeit Next Those Acts of the Common Council are not done neither in the name nor as the Acts of the Corporation nor under any Seal but do import in themselves only to be the Acts of the Common Council The Ordinance That is made by the Mayor Aldermen and Commons in Common Council assembled The Petition is the Petition of the Lord Mayor Aldermen and Commons in Council assembled Their Leases or Grants are in the names of the Corporations and under the Common Seal and the Common Council only Ministerial to the Corporation in ordering managing and disposing all for the benefit and advantage of the Corporation to avoid the Inconveniency of assembling the numerous Body But that any thing that hath but a ministerial power for the service and benefit of their principal should have power to dispose of sell convey or surrender and destroy their principal is no consequence in Law or Reason No Deputy-assistant or Bayliff hath such power if he excéed his authority his Act is void Is it not so with all Authorities and derived Powers what they doe beyond their authority cannot bind those from whom they derive it It cannot be the Act of the Corporation for a Corporation cannot make a Petition no more than they can make a Déed or subscribe a Writing except under the common Seal Corporations cannot make a Lease at will 12 H. 7. 25 26. 9 E. 4. 39. licence a Man to enter upon their Lands or doe any like Act but under their common Seal Nor can they commit a Trespass or Disseisin but by Command precedent or Assent subsequent under their common Seal How then can this be their Act There is nothing in it that imports it should be theirs nor ever intended to be theirs it is not done by them nor in their names but by the Common Council and in the name of the Common Council If we may take notice of what is out of the Record we know that they have in London a greater Assembly than the Common Council viz. The Common Hall wherein the Common Council are no more than others Can the Petition of the Mayor or Mayor and Aldermen in their names be taken to be the Act of the Corporation if that cannot be why should the Petition of the Common Council in their own names be any other than their own Petition as their Ordinance and By-Law theirs and not the Corporations The Case of Corporations takes notice of their Power as Common Councils Rep. 4.77 to exclude the Commonalty and the rest of the Corporation 13 C. 2. cap. 5. The Act allows the Common Councils ordering Petitions But where is it to be found that it was ever said or thought on before that they could forfeit or dissolve the Corporation 4. But supposing all that I have said against me And suppoposing the Acts of the Common Council to be the Acts of the Corporation And supposing those Acts viz. The making the Ordinance and Petition not justifiable or excusable Then the great Point will be whether they or either of them are such Miscarriages or Offences in Law for which the Charter that is the very being of the Corporation shall be forfeit This I call the great Point for I think it to be as great in Consequence as ever any at this Barr as if Magna Charta were at stake for in my apprehension not only London but all the Corporations of England and the Government of England will be deeply concerned in the Question For let us but consider what a vast part of England is concerned in the Corporations of England 1. Ecclesiastical or mixt as Archbishops Bishops Dean and Chapters Parsons Vicars Vniversities Colleges Hospitals of all sorts 2. All the Cities and considerable Towns and Boroughs in England 3. The very Frame of our Government is concerned for one of the Estates of the Kingdom viz. The Commons in Parliament consists of Knights Citizens and Burgesses the Citizens and Burgesses are usually chosen by them that are Free of the respective Cities and Corporations and where not chosen by them yet the Elections are generally under their Power and Influence and the Return made by them Perhaps also a Peerage is a sort of Corporation Perhaps the World it self at least this little World will no longer be able to subsist in health than the due Order and just Temperament of the several Parts and Powers therein are preserved and contain themselves within their own Bounds The taking away or Infeebling any principal Part brings a Lameness and Deformity Pain and Disorder upon and at length confounds the whole The Laws answer their ends whereof the principal is the preservation of the Government which preserves the Laws they cannot subsist one without the other therefore whatsoever it is that tends to the Subversion or leaving at Will and Pleasure that which is so considerable in our Government as Corporations are ought to be throughly considered The better to examine and consider this great Point In the first place the Reasons given on the other side are Object 1. That if Corporations be not forfeitable for their Miscarriages they will attempt and doe
extravagant Acts raise Sedition or Rebellion and there will be no adequate Punishment to their Miscarriages Resp In answer to this Reason 1. There is no illegal Act that they can attempt or commit but that they are under the same Severities and Corrections of Law as any other the King's Subjects not Incorporate are Though it be true that the Corporation it self is only a Body Politick an invisible Body yet the Members of it they are visible If they as Members of that Corporation commit or doe any ununlawful Act they are punishable for it in their own private Capacities If they make any Ordinance or By-Law to raise Money unlawfully upon any of their Members or others the By-Law or Ordinance is void If they receive or collect any Money by it the Receivers and Collectors are to answer it they are to be sued as any other Subject Suppose a Lord of a Mannor or Market make an unlawful Order to collect or take Money from his Tenants or Coppyholders or unreasonable Tolls in his Markets This Order is void in Law and those that collect or receive any Money by it are answerable for it and the Parties grieved have their proper Actions and Remedies and perhaps the Markets or at least the Tolls may be siesed or forfeit for this Miscarriage This is the Provision that by Law is made against such Exactions and this is just and adequate reasonable And if a Corporation make such Ordinance By-Law or Order and thereby there is the same receipt or Exaction the Subject hath the same remedy and there is the same Forfeiture of Toll or Market as in case of any natural Person or Lord of a Mannor and the Provisions by Law made are just and reasonable and adequate in this Case of the Corporation as of the other The like for any Offence that can be committed it must be done by particular Members and they must answer for it And this is no new Opinion 21 E. 4. 14. express that a Mayor and Commonalty or other Body Politick cannot commit Treason although all the Commonalty doe commit Treason every of them is a Traitor in his own person I might cite other Authorities to this purpose but they have béen already cited by Mr. Recorder in his Argument and though the Counsel for the King would make these Books to be but some slight Opinions yet unless they could shew some Authority Book or Case to the contrary their despising or little valuing what they can find no Answer for will not render the Authority and constant Opinions of our Books of less estéem than they ought to be 'T is no excuse if they doe an unlawful Act that they are Members of a Corporation or did it as a Corporation No body can say this will excuse them so that notwithstanding their being a Corporation they are subject to the Law be the Offence Treason Sedition or any other Crime or Offence as any other the King's Subjects are every particular Member that acted or committed that Offence is answerable to the Law for it The particular Members that commit the unlawful Act and all that act under their Authority are subject to the same Law as all other the King's Subjects And therefore this reason that else there will be no Punishment upon them adequate to the Offence and consequently a Mischief and Inconvenience is but a shadow and nothing proportionable to the Mischiefs and Inconveniences attending the position of a Forfeiture of the other side But consider the Injustice that would be of the other side if this should be so we know Assemblies determine their Act by the major Vote and great struggling there is as wée too frequently sée in their Debates and Resolutions and carried by majority of one or two Votes sometimes by surprizes and undue management sometimes by fear and terror Suppose an evil Act so carried or managed is it reason that all the whole Corporation should be hereby forfeit and thereby all other men to whom they owe any Debts must lose them and the many Interests and Livelyhoods depending upon the Corporation the Customs Courts Offices and Privileges belonging to it endless to enumerate shall all be undone and destroyed Obj. 2. The next Reason that hath been given is That it is a general Rule in Law that the abusing or misusing of a Franchise is a Forfeiture of the Franchise Resp 2. This is true in the sense that the Books do say it for if a man misuse or abuse a particular Franchise he shall forfeit that particular Franchise but he shall not forfeit any other except it be depending upon and incident to it And the Cases cited prove nothing farther 22 Ass p. 34. Br. Fran. 34. That when a man hath divers Franchises not depending one upon another and misuseth one Franchise he shall not thereby forfeit the rest but only that which he misuseth 8 H. 4. 18. Rep. 9. 96. b 24 E. 4. b Inst 2. 43. And therefore the Cases cited Where the Abbat of Crowland and the Abbat of St. Albans had Franchises of Custodies of Gaols one would not be at the cost of a Commission of Gaol-Delivery the other did detain in Prison after legal Discharge and Fées paid This was a misuser of those Franchises and Forfeitures So also perhaps if there be a Franchise that hath Incidents to it as Pypowders to a Fair Pillory to a Leet An abuser of the Incident as the Court of Pypowders or the not having a Pillory may forfeit the Market or the Leet If the Lord of a Market take outrageous Toll Stat. West 1. cap. 31. Inst 2. 219. he shall forfeit the Market But doth this prove that if a Corporation have Fairs Markets Gaols or Leets and misuseth any of them that the Body Politick the Corporation shall be forfeit If this be so the Abbats they being Corporations in the cases of the Abbat of St. Albans and Crowland should have forfeited not only the Liberties of having Gaols but the very Corporations or Bodies Politick of being Abbats a conceit never yet imagined Can you say the City of London is either dependent or incident to the Markets or the contrary that the Markets are incident or dependent upon the Corporation that they cannot be one without the other Can this be said If this cannot be said with reason how can then the taking these Tolls admit they were outrageous and a Forfeiture of the Market forfeit the Corporation The making the Ordinance supposing they made it is but the mean by which they took it Your Books only prove the abuse of a Franchise a Forfeiture of that Franchise or Incidents to it and no other But the Inference in this Case is not the Forfeiture of that particular Franchise but of the being of the Corporation that owned the Franchise which is a plain Non sequitur unless you say the Corporation is incident to the Market Arguments from general Rules are the most fallible especially in Law and
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
replevyed to them the Office of Mayor Usque quindenam Sancti Martini and also recites which Office was seized into the Kings hands by the Iustices of Eyre in the Tower of London and he was willing to continue it longer to them ex gratia speciali he did grant them the said Office Quamdiu c. Then the second part of Pat ' Rolls in 20 E. 2. it is recited that the King had seized the Office of the Mayoralty and had replevied it from time to time and that one Hamond de Chigwell was made Mayor the King had excepted of him for Mayor Et Rex volens eis gratiam uberiorem facere grants him the Office of Mayor Now my Lord these seizures shew plainly that the Franchises of the City were forfeitable for either they were seized upon matter of Record found for a Forfeiture or else upon some matter which was to be a ground of a Forfeiture So then they were absolutely gon and I do not find that these were ever taken out of the Kings hands by Process of Law but were restored by Grace and Favour for till the 20 E. 2. it appears that they so long continued in the Kings hands and he absolutely disposed of them Here is now a Favour to them and a plenary restitution Thus it stood in the Reigns of E. 1. and E. 2. Now the next thing will be for their Act of 1 E. 3. which they back with my Lord Cokes observation upon it that it was Authoritate Parliamenti Now truly my Lord there is no such Act of Parliament that is any where extant For it is not in Print neither are there any Parliament Rolls of E. 3's time till 4 E. 3. And he that cites it my Lord Coke himself cites no Roll at all for it so that where we shall find this Act of Parliament truly I do not know But this Act at best amounts to no more than that for any personal Trespass of Officers the Liberties of the City should not be seized but that signifies nothing for that is not our Case There are Acts of the Corporations not of particular Officers though I cannot but observe how the Law was taken to be at that time before this their pretended Act even for the Offence of private Officers and that appears to be the Law too in the Case of 9 E. 1. which I cited before which was only the Offence of the Mayor of Sandwich who refused to answer for a Trespass and a Rescue was committed and the whole Liberty seized Now this Act of 1 E. 3. be it what it will though they would take it in that sense that no forfeiture should be incurred for the Trespass of an Officer yet I find quite the contrary thereunto and that it hath not prevailed even in that sense For 5 E. 3. rot claus 14. there the King did discharge one from the Office of Mayor and commands the Aldermen and Comminalty to choose another Now this my Lord I take to be not so much a punishing of the Officer as a breaking in upon the Franchise it self But I shall shew more fully in the Reign of R. 2. that this was done Yet I will first take notice of the Statute of R. 2. which is the next thing that they rely upon and this with submission is no Act of Parliament neither for though my Lord Coke in his 4th Inst 205. says this is the Statute mentioned in our Books which supports the Customs in London to devise in Mortmain and other Customs against Acts of Parliament and cites Authorities in the Margent yet my Lord I have looked and can find none of them to speak to the purpose for which they are cited but the Book of 7 H. 6. fol. 1. where the custom of London to devise in Mortmain is in Question and there it was ruled a good custom because of the Statute that confirms it after the Statute of Mortmain but says that Book Quere the Statute to that they were not well apprized of the Statute in those days tho this were the foundation of all the resolutions of that kind It appears by the Roll that it is no Act of Parliament in the nature of it for its 7 R. 2. N. 37. 't is 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 veult but this is no Act of Parliament it is no more than a confirmation of the Letters Paâ—ents which had been primo R. 2. Besides further there never was any Patent granted in pursuance of this Act And yet 't is plain that if it had been to it would only have extended to Forfeitures that were past but could never amount to a Dispensation or License for the future And my Lord this appears by these Authorities and Records that I shall now cite The 1 part of Pat. Rolls 16 R. 2. Membrano 36 37. whereby it fully appears That notwithstanding these pretended Statutes there was no such Priviledg in the City but that for the Offences of their Officers or themselves the Franchise should be seized But my Lord I must a little observe that truly the City have attempted to raise themselves above the fear of any Iudgment in any of the Kings Courts for in primo R. 2. Parl. Roll 126. there they Petition for a Confirmation of their Charter with a Clause of licet non usi vel abusi which was that they then would have to be done in Parliament for them But they do likewise desire in their Petition that notwithstanding any Statute Priviledge Charters Iudgment made or to be made to the contrary their Liberties might be confirmed of this 't is said the King will advise There is in 1 R. 2. Parliament Rolls 121. as pleasant a Petition as the other they there do desire that the interpretation of their Charter may be left to themselves and where it is doubting such meaning as they should put upon it should be allowable But to that the Kings Answer was That he would make the interpretation of his own Charters according as his Counsel should advise So that I observe they would feign have been absolute but they could never do it It hath always been denied them So that from what was done at this time and after 7 R. 2. it does appear plainly that there was no difference between the City of London and any other Corporation only this is really the greatest But as all greatness is the Kings Favour so when men forget their duty in abusing the Kings Favour this great Court is the place to put them in mind of it I come then to the third Question III. Whether the Act of the Mayor Aldermen and Commonalty in Common Council assembled be an Act of the Corporation so as to make a Forfeiture of the whole And with submission my Lord that will be pretty clear too upon these Reasons 1. First
Charter Therefore upon the whole matter I do humbly pray your Iudgment for the King that they may be outed of their Franchise of being a Corporation Sir George Treby Recorder for the City THE first thing that I shall I hope maintain is I. That a Corporation or the Being of a Body Politique it not forfeitable The Nature of a Corporation in its Existence Powers and Actions is to be considered A Body Politick or Corporation is created by the Policy of Man 1 Inst 2. The Persons Incorporate are created a Body and are of capacity to take or grant do or act according to the Powers and Authorities in their Creations given them and to no other purpose only a Capacity and not properly a Franchise 1 Inst 250. Brook therefore in his Title of Corporation makes his Title Corporation or Capacity 2 Bulstrode 233. The Body is invisible therefore cannot appear in Person Dissolution of a Corporation there may be As where the Persons incorporated all dye Corporation of necessity is thereby dissolv'd 1 Inst 13. b. Rolls Ab. 1. 514. But no Book or Case mentions Dissolution by Forfeiture In the time of H. 8. when the Corporation of Monks Nuns and other Religious Houses were dissolv'd Had it not béen a very easie way if this Doctrin of dissolving by Forfeiture would have done it thereby to have effected the Kings purpose It was but to have issued out a Commission and thereby find but one illegal Act or Miscarriage done by the Corporation and thereby the Corporation dissolved But in Henry the Eighth's time or afterwards the Surrenders made by Corporations was of their Lands not of their Corporations or Bodies Politique as appears 2 Anderson 120. Dean and Chapter de Norwich's Case 3 Rep. 74. For tho they surrendred their Church and all their Possessions and Franchises yet the Corporation remain'd not thereby dissolv'd Fullcher and Heyward Jones 198. Palm 491. Davyes Rep. 1. b. And Encounter le Opin Dy. 273. 282. And therefore to this time viz. 3 Car. I. when these Cases were adjudged and argued the Law was taken to be that a Corporation could not be dissolved by Surrender And the Statute 27 H. 8. 31 H. 8. 34 H. 8. for dissolving the Monasteries none of them mention Surrender of the Corporations And the the word Forfeiture be in those Statutes thereby is not meant forfeiture of Corporation but forfeiture of the Lands of the Abbots by Attainder viz. Abbots of Glassenbury Colchester and others attabited upon the matter of the Kings Supremacy And so it appears Rolls 2 Rep. 101. But if it should be admitted That a Corporation may be surrendred and thereby extinct and destroyed it is no consequence that they may be forfeited For there are many things surrenderable that are not forfeitable As Annuities granted pro Concilio impenso impendendo which are persnal Interests and so fixed to the Person as not transferrable by Grant Forfeiture or otherwise Much more then of a Corporation which is far from being grantable or forfeitable it is the very Capacity or Existence and inseparable in its Nature from the Persons incorporated Worseling Manings Case Lane 58. Rolls Abr. 1. 195. Alien obtains Letters Patents of Grant of Denization Proviso That the Grantée do his Legal Homage and be obedient to the Laws of the Kingdom He never doth his Homage nor is obedient He shall not hereby forfeit or lose his Denization or Capacity that he hath granted him by his Patent II. That this Information now brought is insufficient and no Judgment against the Corporation can be given upon it It cannot be maintained against the Corporation as now brought but should have béen against the particular Persons Rex vers Cusack Rolls 2 Rep. 113. 125. Palm 1. In a Case of great Authority and upon a Writ of Error out of Ireland upon a Iudgment in a Quo Warranto against the Corporation of Dublin a Quo Warranto was brought against Cusack and others Aldermen of Dublin who pretended to have Priviledges and a Guild and to be a Corporation and this I presume is for their being a Corporation for there is a Cur ' advisare vult upon that and so 't is not put in the Case but 't is also brought for several Liberties that they did pretend to claim that they only and no others should sell and buy all Merchandizes there and no body should buy of another or sell to another but to them that all Merchandize should be brought to their Common Hall there c. Now as to those Liberties they are forejudged that the Liberties should be seized and they outed As to their claiming the Corporation there is a Cur ' advisare vult so the Case is in Palmer but in the other Book Rolls 115. there 't is agreed If a Quo Warranto be brought to dissolve a Corporation it ought to be brought against particular Persons for the Writ supposes that they are not a Corporation and 't is to falsifie the Supposal of the Writ to name them as a Corporation Now here this Writ supposes them to be a Corporation or else they could not be Defendants and then it comes and falsifies that supposal by assigning that they are no Corporation nor ever were or if they had they have forfeited it and so all the foundation that this Writ stands upon is destroyed My Lord in this Case of Cusack I am assisted further with a Report of it in my Lord Chief Iustice Hale's Book a Report of very great Authority with all Men of our Profession and there he says expresly If a Quo Warranto be brought for the Vsurping of a Corporation it must be brought against particular Persons because it goes in disaffirmance of the Corporation and Iudgment shall be given that they be outed of the Corporation but if it be for Liberties that are claimed by a Corporation it must be brought against them as a Corporation 'T is in my Lord Hales Common Place Book which is in Lincolns-Inn Library fo 168. placito 7. My Lord this is our very case if you go about to say our Corporation is forfeited or must be dissolved nay more you say it has either never béen or by forfeiture it is lost so long ago then here is nothing can come before the Court This Information is brought in dis-affirmance of the being of the Corporation and therefore there must be set up some body capable of being a Defendant in such a Suit and that is particular Persons which ought to have béen named as was in that Case of Cusack For as the Iudgment of Ouster of particular Liberties given against particular Persons will not bind the Body of the Corporation so the Iudgment of not being a Corporation will not be good to charge or oblige particular Persons unless it be given against particular Persons that usurp the Corporation The Individual Fréemen of London cannot possibly be bound by this Iudgment for they are not here before you nor were they
Ed. 3. which I mention though I think we have no néed of that in the case to help us if they make a unreasonable By-law 't is void and every man that is aggrieved by it may have his Remedy may bring his Action Shall you supply this by an intendment that they have such a relation That they are the Representatives of the City of London That they have a power to forfeit the Corporation No my Lord by Law they are part of the Corporation but they have no such power to forfeit the Corporation A custom shall never be construed to enable a man to do a wrong and a great wrong it is that they that are trusted and trusted but for a year and trusted but for the good of the Corporation of which they are part should give up the being or what is worse forfeit the being of that Corporation The custom of Kent that makes an Infant capable of making a Feoffment shall never inable an Infant Tenant in Tayl to make a Feoffment so as to work a discontinuance of the Estate Tayl and put the Heir to his Formedon Every illegal Act of theirs is beyond their Commission and a nullity of that is all in respect of themselves and 't is as if they the had never done it as to the Corporation for they are by no means the Corporation for tho they use the Comm Seal in some cases at some times so do the Court of Aldermen in other cases but it is only in other cases wherein they are particularly intrusted If an Act of Common Council say that I shall have such and such Lands of the Cities that Act fignifies nothing but as a direction and advise when 't is under the Common Seal 't is an Act of Corporation and procéeding by advice of Common Council it binds Now my Lord this is the more unreasonable because we know that the practice of the Common Council in London being to advise for all the Inhabitants they are chosen by the unfrée-men as well as others and 't is a strange thing that they should have a capacity to give away the liberty of the Citizens when they are chosen by others as well as them they had no such trust for them nay all trust they had was to kéep their Liberties and not to destroy them Has any Man a trust to destroy himself sure no Man is trusted by God himself to be felo de se And certainly then you can never understand it to be in the nature of a Trust to destroy another and the least Citizen my Lord has as much and as true an interest in the Corporation of the City of London as the greatest And therefore 250 if they had béen much the greater number of the Citizens would signifie nothing to the rest of the Body My Lord I shall only say this little more here is no crime charged relating to them as a Corporation Here is indéed a fine word used that we did this contra fiduciam in corpore politico repositam but all this is but an imaginary Trust the King never gave them a power or authority or entrusted them to make By-laws that were unreasonable he gave them a power to make reasonable By-laws and so he does every Corporation And the same Law that gave them the power limits that power and says if they go beyond that power 't is a nullity And these Acts relate not to them as a Corporation the Petition is not so much as said to be against any trust reposed in the Corporation certainly there never was any such Trust Did ever the King entrust them to advise him about the matters contained in the Petition and if not then 't is not contra fiduciam therefore it relates to particular persons If it be an Offence I hope 't is none of the Corporations But then the levying of Mony that is contra fiduciam they took upon them an illegal and unjust power in the Common Council Suppose it so how does this belong to the Corporation 't is an encroachment upon property 't is the most arbitrary thing in the world Whether they have the Market and the Dominion of it or not is matter of Fact and being pleaded is confessed by the Demurrer And then for the power of making By-laws that is a thing that cannot possibly be taken from them while they are a Corporation 't is that which must be in them as a Corporation like the faculty of Reason in a Man to express his Resolutions by And 't is no more than if a man that has a Market bid his Servant go and remove such as have Stalls there unless they will pay so much That direction is as good a Law as this and as bad a Law as this and no more There is nothing else in it but the direction of the Officers what they shall do in the ordering of the Markets and disposing of the Cities Property Then as to the former method of expressing themselves whether it be by Act of Common Council or under the Common Seal or by their natural Voice 't is all one 't is not a thing that concerns them as a Body Politique But if it were illegal and mistaken I say the Penalty is only that it shall be void What the Common Council nay what the Corporation does within the limits of its Authority is good what beyond that it does is void If I command my Servant to distrain for Rent and he kills a Man in the doing of it this as to me is void but as to himself that is chargeable upon him And what I say of the Common Council I say of the Corporation it self That it is a Capacity and a limited Capacity 't is the act of the Members not of the Corporation if they do wrong The Common Council can act for the good of the City and the City can do no more if they themselves should méet Crooke Eliz. fol. 85. The Quéen makes a Lease for years of Lands to the men of Chesterfield by the name of Aldermen and they by that name grant all their Interest to Clerk says that Book this is void for the Quéen granting them a Lease as to the Aldermen of Chesterfield this makes them a Corporation and gives them a capacity to take but not to grant And so Rolls Abr. 1 p. 513. And therefore no Corporation is to be considered as a Corporation but only when it acts according to the capacity allowed to it and as to the rest it all turns into their private capacity but it affects not the Body nor hath any such relation as to bind it My Lord All the Question here is Whether there shall be such a Person in Esse as this Corporation Whether the City of London shall subsist as such a Person to sue and be sued to plead and be empleaded There is nothing of Government or Misgovernment in the case but 't is all about our Capacity and nothing else whether we shall be
and lawfull Corporation is yet in being which is contrary to the whole frame and scope of both the Information and Replication and probably never thought on or intended when the Information or Replication was made being quite contrary and inconsistent with the frame and foundation of them both If it be holden according to this concession that the old and lawful Corporation was not by the supposed Acts of Forfeiture dissolved and determined ipso facto but remained and continued lawfully a Corporation and yet is so then we have not usurped but are a lawful Corporation during the time in the Information and not as therein supposed by Vsurpation and without lawful Authority and thereby the Information confounded and abated But supposing according to what the Information and Replication suppose That the Acts of Forfeiture did ipso facto dissolve and determine the Corporation for they will at last I doubt come to that again for this present thought that it shall be forfeit but not dissolved or determined till Iudgment will be subject to almost all the same inconveniencies for when Iudgment given the Forfeiture must relate to the time of Offence and to avoid all mean Acts as in other Cases it doth But to pass over 3. Supposing the Information good the Replication good and the Matters alledged for Forfeiture to be as in the Replication alledged The next thing I pray leave to speak unto is Whether the Matter alledged in the Rejoynder be not sufficient to justifie or excuse the two Facts alledged for cause of Forfeiture I conceive they are The Pleadings here must first be stated 1. As to the Ordinance or By-Laws for the Toll in the Markets As to that the Defendants in their Rejoinder have alledged That the City of London is and was always the capital and most populous City of the Kingdom That there are and always have been great publick Markets within the said City That the Mayor Commonalty and Citizens are and always have béen seised of those Markets in their Demesne as of Fée and at their own proper Charges provided Market-places Stalls Standings and other Accomodations for Persons coming to those Markets and Overséers and Officers for better regulation and kéeping good order and cleansing the same That for defraying those Charges they have and always had and received divers reasonable Tolls Rates or Sums of Money of all Persons to those Markets coming for Stalls standing and other accommodations by them had for exposing to Sale their Victuals and Provisions in those Markets That the Fréemen of the City of London are numerous above fifty Thousand That there hath been time out of mind a Common-Council consisting of the Mayor Aldermen and certain Fréemen annually Elected not excéeding the number of two Hundred and fifty called the Commons That there is a Custom within the City that the Common-Council make By-Laws and Ordinances for the better Regulation and Government of the publick Markets and for the appointing convenient places and times when and where within the City the Markets shall be kept and for the assessing and reducing to certainty reasonable Tolls Rates or Sums of Money to be paid by Persons coming to the same Markets for their Stalls Stations and other Accommodations by them had for exposing to Sale their Victuals as often as and when to them should be thought expedient so as their Ordinance be useful to the King and his People consonant to reason and not contrary to the Laws of the Land That this Custom is confirmed by Mag. Char. Stat. 1. E. 3. Stat. 7. R. 2. That after the Burning and Rebuilding London and the alterations thereby made Controversies did arise within the City concerning the Markets and the Tolls That thereupon Sir William Hooker then Mayor and the Aldermen and Commons in Common-Council assembled did make an Ordinance Entituled An Act for the Settlement and well ordering the several Publick Markets within the City By which reciting That whereas for accommodation of Market-people with Stalls and Necessaries for their standings for clensing and paving the same for defraying incident Charges about the same reasonable Rates had always béen paid To the end the Rates to be paid might be ascertained That the Market-people might know what to pay and the Officers what to take to avoid extortion it was ordered there should be paid by the Market-people for their Stalls Standings and Accommodations in the Markets For every Horse-load of Provision under publick shelter 2 d. a day for every Dosser 1 d. a day for every Cart-load drawn with not above thrée Horses 3 d. a day with more Horses 4 d. a day and upon refusal to pay to be removed Then they aver that these Rates are reasonable That they are all the Rates that are paid by such Market-people to the use of the City That these Rates they have received since the making these Ordinances That there is no other Ordinance for raising Moneys for such Provisions exposed to Sale in their Markets in any manner made To this Rejoinder Mr. Attorney hath sur-rejoyned and taken it by Protestation That the City were not seised of the Markets nor at their own Costs provided Stalls and other accommodations and that the Rates by the Ordinance appointed were not reasonable For Plea sets sorth An Act of Parliament made 22 Car. 2. Enacting That to the end apt and convenient Places within the City should be put out for Buildings and keeping the Markets and that the Royal Exchange Old-Baily and common Gaols and Prisons within the City should be made more commodious for the enabling the City to do these things they should have a Duty out of Coals imported betwixt May 1670. and Mich. 1687. into the Port of London 12 d. per Chaldron which Duty they have accordingly received amounting to a great Summ and notwithstanding that Duty without Title or Right the Defendants made the By-Law for their private Gain absque hoc that the Mayor and Commonalty and Citizens have time out of mind had or accustomed to have Tolneta ratas sive denariorum summas per ipsos Majorem Communitatem ac Cives Civitatis predict ' superius supposit ' fore per praesat ' legem sive ordinationem predict ' assess in certitudinem reduct ' prout per placitum superius rejungend ' supponitur The Defendants they rebutt and say That they have always had reasonable Tolls Rates or Summs of Money of all Persons coming to their Markets to sell their Provisions for their Stalls and accommodations Et de hoc ponit se super patriam Le Attorney Demurs Vpon his Pleadings the Questions are Whether the matters alledged by the Defendants in Iustification of the Ordinance or By-Law be a good Iustification in Law or not If it be Mr. Attorney in his Sur-rejoinder hath given no answer to it at all he hath neither confessed it nor denied it The Rejoynder saith That the Defendants are and always have béen seised of the Markets in Fée That
they at their Charge provided Market-places Stalls Standings and Officers for the accommodations of the Markets and cleansing them That for defraying those Charges they have always had divers reasonable Tolls and Rates for Standings and other accommodations That the Common-Council have as often as expedient always made Ordinances for regulating those Markets and for assessing and reducing to certainty reasonable Tolls Rates and Summs of Money to be paid by the Market-people for their accommodations That according to this Custom they made the Ordinance and by-Law Mr. Attorney in his Sur-rejoinder hath not denied any part of this but offers a traverse to that which is no where alledged or supposed It is never pretended that the City have had time out of mind the very Tolls and Summs of Money for Toll assessed by the Ordinance There is not a word in the Rejoinder to that purpose but to the contrary viz. That they in their Rejoynder claim a Power by Ordinance of Common-Council to assesse and set the Rates of these Tolls and Payments as often as and when to them shall seem expedient It is admitted in the Rejoinder that these Summs were not time out of mind only they had Power to sett and assess and ascertain as often as expedient Therefore when Mr. Attorney traverseth our having time out of mind the Tolls Rates and Summs of Money by the Ordinance assessed and in certitud ' reduct ' This is plain besides any thing claimed or pretended unto If he had intended to traverse what we have alledged that we have had time out of mind divers reasonable Tolls Summs of Money for Stalls and Accommodations Or if he would have traversed the Instance alledged for the Common Council assessing those Tolls as often as expedient that was plain and easie to doe but that he hath not done He hath only traversed whether the Tolls Rates and Summs of Money by the Ordinance assessed and reduced into certainty have been time out of mind This is the proper sense of his Traverse but if doubtfull in its sense his Traverse is naught for that cause for dubious words can make no Issue for the Iury to try else men should be tricked and ensnared by doubtful words to pervert right So that if the matter alledged in the Record be sufficient in Law to justifie the making this Ordinance or By-Law then what is done therein by the Act of Common-Council is lawfully and rightfully done and no Forfeiture I do agrée that for a Lord of a Market to prescribe to have a Toll uncertain and as often as expedient to ascertain it is no good Prescription But that is not our Case I do distinguish betwixt that and this Case Where there is by Custom confirmed by Acts of Parliament for I shall shew that they are Acts of Parliament notwithstanding what hath béen objected against them a Power and Authority vested in the Lord Mayor Aldermen and Common-Council to regulate and order the People Trades and Markets in the City and the Places and Conveniencies and Officers from time to time and consequently to regulate and ascertain the Tolls or Rates to be paid by the Market-people to prevent Extortion and Disorders That such Custom is legal The Chamberlain of London 's Case An Ordinance that no Broadcloth shall be sold in the City before it be brought to Blackwell-Hall to be searched Rep. 5. 69. and a Penny for every Cloth to be paid for Hallage under pain for forfeiting 6 s. 8 d. a Cloth to be recovered in the City Courts Though objected that this was an Imposition of payment of Money upon the King's Subjects yet adjudged good and a Procedendo granted An Ordinance that no Unfreeman shall use a Trade in London adjudged good City of London's Case Rep. 8. fol. 1. A multitude of Ordinances they have for regulating all manner of Trades and of Rates and Prizes And as much reason there is to object against them as this Ordinance or the Custom in this Case But the City of London have a Government and Power of making Ordinances for governing and regulating Trades buying and selling within the City placed in the Common-Council and confirmed by Act of Parliament and therefore not like the Case of any private Lord of a Market But 't is true their Ordinances must not be unreasonable The Payments that are imposed by this Ordinance are only imposed upon those that are under shelter 't is reason a recompence should be paid and there is no unreasonableness or injustice appears in the Ordinance but a reasonable recompence But the Custom or Power of the Common-Council is not denied as I take it For they have not denied the Power to regulate and ascertain the Tolls or Summs of Money alledged to be in the 5Common-Council if they had that must have been tryed Nor have they denied the Rates set to be reasonable So that I think as to this matter we have well entitled our selves and justified our making our By-Law and taking the Tolls or Rates thereby appointed and nothing in the Surrejoinder against us to the contrary objected But for confirming and making good our Customs in the Plea there are thrée Acts of Parliament pleaded 1. Magna Charta 2. Stat. 1. E. 3. 3. Stat. 7. R. 2. The King's Council have not denied Magna Charta to be a Statute but have denied the other two to be Statutes or Acts of Parliament and the reasons given by them are Obj. 1. Because not in Print nor Roll of it to be found or because no body knows where to find it Resp 1. Private Acts of Parliament do not use to be Printed few are 2. No Roll to be found Suppose there were not doth this after so long a time conclude there was none such especially since Mr. Sollicitor was pleased to acknowledge that there are no Parliament Rolls of E. 3. till 4 E. 3. It is true that almost all the Parliament Rolls of H. 3. E. 1. E. 2. and till 4 E. 3. are almost all lost But besides in those days publick Acts were not only entred upon the Parliament Rolls but from thence transcribed and sent under the Great Seal to be published by the Sheriffs of the Counties in the Cities and Boroughs and also by Writ to the Courts in Westminster-Hall to be there entred and recorded of which there are many found especially in the Exchequer and hence came the rule in Law that Iudges ex Officio are bound to take notice of general Acts of Parliament But for private Acts they were put under the Great Seal and the Parties interessed had the same to produce But that these in this Case should be questioned to be Acts is strange But to prove them Acts First 1. As to the Act 1 E. 3. 1. We have pleaded it under the Great Seal of King E. 3. that made it with a profert hic in Cur ' and shewn it with our Plea as we ought and this is Evidence sufficient of it self
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
to execute those Offices and to answer the King the Profits Hereby it appears that the course was not to forfeit or dissolve the Corporation They never were so unreasonable for hereby all their Lands and Goods and all the Debts owing by them or to them would all be lost All they did was they put in Officers to preserve the Corporations So that I think there is nothing more plain that though the Liberties were seised and that Officers Custos or Mayors were put upon them yet the Corporations or Bodies Politick or their Liberties were not forfeit or determined If they had been either forfeited or determined could the Writs of Restitution have set them up again The old could never be restored or set up again but by Act of Parliament they might have had new Charters and have been made new Corporations but the old could never have been restored if once forfeited as now imagined So that the Point betwixt us is Whether the Records of E. 1. E. 2. and R. 2. of Forfeitures and Seisures of Liberties supposing the Causes or Offences for which they were seised were very great and provoking as in all probability they were do prove that thereby the Corporations were forfeit dissolved or determined It appears they were not forfeit You can never avoid it If abusing the Franchise or Liberty of being a Corporation be a Forfeiture as you affirm and that they were seised for being forfeit then the Offences that were committed by these Corporations in those Princes times were Forfeitures and consequently the Seisures dissolved the Corporations They could not forfeit and lose their Corporations and yet keep them And that they still had their Being is most evident by the Records of those times shewing that they acted and enjoyed their Corporations under those Seisures only a Custos instead of a Mayor all other things the same That they have in all Ages ever since been allowed to be Corporations by Prescription never denied or questioned That the Acts of Parliament immediately following confirming their Privileges never questioned their having them Never any thoughts of making void any Forfeitures by these Acts or any new Grants but always pleaded by Prescription These things plainly shew that the Offences committed in those times did not forfeit the Corporation and all that dark Authority they have out of those Records is directly against them proves only that these Abuses gave only Cause of Seisure of some Offices but no Forfeiture of the Corporation that still continued Having thus answered those old Records and shewn that they are of Authority for me against them And since it hath been stirred in this Case whether a Corporation or Body Politick be surrenderable or not And insisted upon by the other side that it is and from thence an Argument drawn to prove that if surrenderable 't is forfeitable Whether it be surrenderable or not perhaps is also doubtfull that I think a man cannot argue from it any thing First I am sure there is no great reason why it should be for since that men that are of the Corporation take upon their coming to be free an Oath to preserve the Rights Liberties and Privileges of it and since the Active Members are intrusted for all the other Members that elect and chose them and also for their Successors I cannot see how a man can satisfie himself in so doing Rep. 11. 98. Sr. James Baggs Case They forfeit their Freedom by doing contrary to their Oath and Trust If every Freeman by his Oath and Trust be obliged to seek the Benefit of the Corporation to surrender is against the Oath The Law seems to have a care of preserving Corporations and therefore provides that the taking any new Charter though there be many Alterations in Offices and Names yet doth not surrender the old But were it of any other Franchise the taking anew of the same thing is a Surrender of the old Dean and Chapter of Norwich Case Rep. 3. 73. Jones 266. Fulcher and Heyward's Case séems a strong Case to prove it not surrenderable And though the Bishop did not in that Case joyn in the Surrender that cannot hinder because the Bishop is no part of the Corporation and therefore cannot hinder them to surrender if they will 4 H. 26. 22. b A Vill ' Incorporate by the name of Bayliffs The King de nova Incorporates them by the name of Sheriffs Are their Privileges that they before had gone no Dieu defend saith the Book But this being not my question I intend not to debate it throughly but to kéep to the point of a Forfeiture of a Body Politick or Corporation and farther to examine the reasonableness and justice of this Doctrine of Forfeiture and see how adequate and just it is for that is the thing I perceive desired 1. First Their Position is That a Corporation or being of a Body Politick is a Liberty or Franchise and if abused or misused is forfeited determined and dissolved That I may a little understand this Position and consider of Abuse and Misuse and of the extents and consequences of it By Abuse or Misuse every Act that a Corporation doth that is not justifiable by Law is as I take it an Abuser or Missuser If a Corporation receive any Money that is not due to them if it be by virtue of any By-Law that is a Forfeiture though it be but a Groat What if they by their Common Seal command their Servant to enter into such Lands or Distrein such a man's Cattle for Rent not due Is not this a taking upon them to oppress the King's Subjects and to extort from them their Lands or Moneys where not due this is a Misuser A Body Politick as I have said is but a Person created in resemblance of a natural Person to have a Capacity to take hold and enjoy to particular ends and purposes And hold or enjoy is not possible without acting and all that Act must of necessity be subject to Errors sometimes in their actions as natural Persons are And must it be so penal to them that every Error Misuser or Abuser must be a Forfeiture Can it be reasonable or just in Law that this can be Laws are made for Preservation not for Destruction if every Abuser or Misuser forfeit be it a small Transgression is it either reasonable or probable that any Law shall punish it with destruction of the Body The greatest Offence be it Treason or Rebellion or the least illegal Act Offence or Misdemeanour must have the same measure of Punishment by this Rule and the Law then doth not distinguish If a natural Body or Person hath a Market and orders his Servants to take such Tolls and he takes them What would this Crime be besides Forfeiture of his Market Why should a Corporation then not only in such Case or for any Offence or Miscarriage to the value of a Peny forfeit and lose as in the Case of High Treason his Life
or Being Lands Goods and all This cannot be agréeable to any Rules or Reason of our Law and therefore I take it it cannot be the Law The next thing is the Mischiefs and Inconveniences 2. The Mischiefs and Inconveniences that must attend this Doctrine or Law of Forfeiting and Surrendring if the Law be so 1. First Let us consider whether this at one stroke do not make all the Corporations in England of all sorts forfeit at once and perhaps many years since Is there any Corporation in England that hath not Offended or Transgressed all manner of Corporations fall under this Rule If they have transgressed or done any such Act as makes a Forfeiture as every miscarriage for any thing I can see to the contrary doth whether the Corporation be ipso facto dissolved by the Offence committed or else by the Iudgment which must relate to the Offence to avoid all mean Acts done by the Corporation All that they have done since such Miscarriage they have done without right and all that they think they have a Title to as a Corporation they are mistaken in they have none Perhaps if a Parliament should be called those forfeited Corporations can lawfully send no Burgesses I do not know whether I am mistaken or not I only offer this to Consideration amongst others As give me leave to venture a little farther upon these Considerations of Surrenders and Forfeitures of Corporations Can a Bishop Dean and Chapter Prebendary Parson c. surrender his Corporation or Body Politick If they can most of them perhaps are of the foundation of the Crown and had their Lands from thence We have many Statutes made to restrain their Alienations Those of Queen Elizabeth did not extend to hinder their Alienations to the Crown but perhaps out of hope of Preferment they aliened to the Crown till the Statute of 1 Jacobi cap. 3. took away that Power also of conveying to the Crown Can these forfeit the Corporations Perhaps we are Sinners all or at least as the ballance at some time or other may be holden may be found too light we are upon a point that goes to posterity fear and favour what may it doe and what may it not doe If they may surrender a forfeit what effects may this have upon the whole Ecclesiastical Estate If this had been known in the days of King Henry the Eighth perhaps there would have been no great need of Acts of Parliament to make him Head of the Church or to have dissolved the Monasteries Suppose that Colleges Hospitals and other Corporations founded for Charity can surrender or forfeit the present Masters and Fellows and the Heirs of the Donors may truck what effect may this have upon them what ways may they find out Also Cities and Boroughs what Divisions and Contentions hath it already produced some for surrendring others for defending what Animosities are about it The end of the Law is to preserve Peace and Quiet Divisions and Dissentions frequently end in the Destruction of both Parties The Citizens and Burgesses are I think three parts of four of the House of Commons It is considerable what Effects this may have in Parliaments our Laws and Posterities perhaps not a little concerned herein and if so surely this is a great Case But if only the City of London give me leave to see what the ill Consequences and Mischiefs will be Arguments from Mischiefs and Inconveniences are forcible Arguments in Law Inst 1. 11. 60. So saith Littleton and my Lord Cook upon Littleton and men must be desperate and sensual that despise future Mischiefs and Inconveniences and many other places there cited First all their Lands will be gone and revert to the Donors and their Heirs By Dissolutions of Corporations all their Privileges are gone Jones 190. and their Lands revert to their Donors F. N. B. 33. k. Inst 1. 13. b. or Lords of whom they were holden Secondly All their Markets Tolls and Duties that they claim by Prescription whereby the Government and the Honour of the City the Publick Halls Gates Prisons Bridges and other Edifices are in a great measure maintained Thirdly All the Debts owing to the City and all their personal Estate by the death or dissolution of the Corporation will be gone but who shall have them perhaps non difinitur in jure Fourthly all the Liberties and customary Privileges that the Freemen of the City their Wives and Children claim viz. to have customary shares in their Husbands or Fathers Estates To be exempt from Tolls In other Towns Ports and Markets to exclude Foreigners and Vnfreemen from using their Trades in London and many others Fifthly All the Acts of Parliament that give particular Powers and Authorities to the Lord Mayor and Aldermen or Common Council or Corporation respecting either the Government or Iustice of the City as about Ministers and payment of their Dues Buildings Paving of Strats Sewers Ensurance Office and many others Sixthly What shall become of the Orphans and all the Moneys and Debts the City owes and all the Charities in the City We have seen the City burnt and may remember what a Swarm were unhived thereby but we never yet saw it dissolved nor are the consequences measurable And though it please his Majesty upon the Dissolution of this to grant a new Charter yet it will be impossible any of these things can be preserved Their Lands Estates Debts Privileges Customs are all personal and annexed to the Corporation and must live and dye with it the said Acts of Parliament are all fixed to this Corporation and so are the Charities and cannot as I conceive be ever transferred to any other to be new created A new Corporation can be in no succession or privity with the old If a Body Politick be once dissolved though a new one be founded of the same Name Inst 1. 102. b that can have no succession to the old nor come in privity to it Therefore is it that in the Deau and Chapter of Norwich Case and in Fulcher and Heyward's Case the Preservation of the old Corporation is insisted on If every Abuser committed by a Corporation be a Forfeiture Determination or Dissolution Is there any one in England not forfeited and dissolved Abuse is a word of wonderfull large sense when the Law speaks of a Franchise abused or misused it is applicable to a particular Franchise as to a Market Court or the like and if that Franchise be misused or abused in Oppression or misuse contrary to the ends of it some certainty there is in it But the Abuse of a Corporation extends to all its Acts and all Estates of the Corporation and all the Privileges of all the particular Persons and all that are concerned in them are sufferers for every Abuse or Misuse or Mis-act or Trespass how small soever Who can tell in the Actions of a Person what may be taken to be ill or illegally done or an Abuse Who will trust a
that time till within these three years I believe it never entred into any mans thoughts that a Corporation was forfeitable for farther proof whereof divers other Statutes and the whole series of matter is Argument 15 H. 6. cap. 6. The Statute of H. 6. that provides against Abuses and Exactions made by Societies Incorporate by their By-Laws and Ordinances and appoints a Forfeiture of ten Pounds and of their power to make By-Laws To what end should this be if the Corporations themselves were forfeited or thought so to be The Statute of H. 7. recites the Statute of H. 6. 19 H. 7. cap. 7. and the Exactions and Abuses by Fellowships by their By-Laws and Ordinances and Ordinances and appoints a Penalty of forty Pounds upon a they exact Money by an unlawfull and unwarranted By-Law not examined and signed by the Chancellor and Chief Iustice The Statute of the 12 H. 7. cap. 6. sets forth grievous Exactions by the Fellowship of Merchant Adventurers 12 H. 7. cap. 6. by their By-Laws and imposeth a Penalty for the future The Statutes 22 H. 8. 4. 28 H. 8. 5. shew like Exactions by Corporations upon Apprentices by their Ordinances and By-Laws provides Remedy and enacts Penalty If in those times it had béen thought or imagined that a Corporation had been forfeitable every of these Offences forfeited it what need farther Remedy In the Case of Hoddy and Wheehouse of excessive Toll by the Town of Northampton Moor. 474. 39 Eliz. In the Quo Warranto against a Corporation Palmer 77. though the Question was concerning their taking Toll and whether they had forfeit their Market or only their Toll no thought of forfeiting their Corporation ever mentioned So that I think I may conclude with the tumultuous times of E. 1. E. 2. and R. 2. what was then done doth plainly shew the Corporations were not forfeit or dissolved That by all the Acts of Parliament and Proceedings in almost all the Reigns of any length or duration from that time to this very Case the Opinions and Thoughts of men were otherwise as by the Statutes and Transactions appears Not one Opinion Book or Authority produced or to be found The great Concern not only of this great City but of all other Cities Towns and Corporations Ecclesiastical and Temporal all depend upon it And which is more than all the very Government by Law Established will be in great danger of Alteration by it I have argued long and tryed your Lordships patience the weight and length of the Case and rareness of the matter there never having been the like before in any Age will I hope excuse me But besides the whole frame and foundation that the other side have laid being all built upon general undigested Notions as I take it viz. That Abuser and Misuser of Liberties forfeits them without distinguishing betwixt one thing and another That the words Forfeiting and Seising Liberties found in old Records should be Authorities to prove forfeiting Corporations or Beings of the Body Politick though no such thing then or at any time since till very lately ever thought on or imagined It was necessary for me to open and set forth these general notions and to explain and distinguish which I hope I have done that it may appear what the sense of them is how far they agree with Law and Iustice and how far not And if in the doing hereof or the setting out the repugnant or inconsistent Matters or Opinions arising in this Case to maintain this Quo Warranto I have expressed my self in any other manner than became me I humbly beg pardon for it and that it may not reflect upon the Cause nor prejudice it Vpon the whole Matter If this Information brought against the Body Politick for Vsurping to be a Body Politick ought to have been brought against the particular Persons If it be repugnant or contradictory that a Corporation can usurp to be a Corporation that a Body Politick or Being can usurp to be a Body Politick or Being before it had a Being or to be that same Body Politick or Being which it was when it did usurp If forfeiting a Franchise or Liberty or other Estate cannot determine or vest that Franchise or Estate in the King till the Forfeiture appear on Record Then the old Corporation supposed to be forfeited if it were so did notwithstanding and yet doth continue in being there being no Record to determine it and consequently that which is pretended a new one by Vsurpation is impossible If by Seisure into the King's hands as pretended the Continuance of the Corporation be intended How inconsistent is it with Law or Iustice to continue any thing in the King that is wrongfully usurp'd and the Parties to be punished fined and committed for usurping If Mr. Attorney's Replication taking issue upon our Prescription to be a Corporation and going over and alleadging several distinct Causes of Forfeitures cannot by Law be maintained and in the Example doth introduce a way to bring all mens Estates subject to Mr. Attorneys will and pleasure For let any mans Right be as good as can be it will be scarce possible to defend it if such Pleadings as in his Replication be allowable by Law Then be the matter in Law as much against us as possible yet Mr. Attorney can have no Iudgment for him upon this Information Next Supposing the Information all good in Law Yet If the Iudgments Records and Authority that have been cited by them for Seisures do plainly shew that Seisures and Forfeitures are very different in their Natures That the Corporations all continued notwithstanding the Seisures And the Seisure was only the Kings putting in Mayors and Officers to act in them instead of the others Elected or Constituted by the Corporation and they remain Corporations by Prescription to this day and never were forfeited dissolved or determined by such Seisures If the General Authorities in Books that the Misusing or Abusing a Franchise be truly applicable to Franchises that are Estates and Interests grantable or conveyable from man to man and never were intended of such a thing as is rather a Capacity or Being than a Franchise If there be no Case or Precedent or Opinion to be found for it If of the contrary the particular Cases cited prove that where the Corporations have by Miscarriages forfeited particular Franchises they do not forfeit their Corporations If there be scarce any Corporation in England that have not at some time or other done something they should not or omitted to do something they should and thereby forfeited their Corporation and consequently all are Vsurpers and their Corporate Acts since done all void If the Corporation here hath done nothing but that the Mayor Aldermen and Common Council are only Delegates Deputies or Ministers of the Corporation for particular purposes If Servants Deputies or Delegates doe that which they have no Authority to doe they must answer for it in their own