THE POWER OF THE KINGS OF ENGLAND To Examine the CHARTERS Of PARTICULAR Corporations and Companies Exemplified by the STATUTES and LAWS of this REALM THat the Kings of England have Power to Examine the Charters of Corporations may appearent by the following Discourse which will manifestly make it apparent for if the Prince hath Power on the forfeiture of the Charters and Franchises of an Aggregate Corporation to seize on their Franchises and Liberties how then can it become a Question whether he cannot by the same Authority examine the Charters of Particular Corporations and Companies That by the Laws of this Realm He can do the former is here illustrated and therefore His Power cannot be deficient in the later In Disquisition therefore of this Case WE shall Consider in the first place what a Corporation is A Corporation is either Sole as Bishop Parson 39. H. 6.14 7. E. 4.12 or Aggregate as Mayor and Commonalty A Corporation Aggregate is a Lawful Society of a certain Number of Men Constituted by the King with divers Liberties and Priviledges 11 H. 7.27 Fitz grant 30. Summa Hostiensis Fol. 60. All Corporations have their Origination and Essence from the King otherwise it 's an Illegal Society contrary to the Laws and Statutes of the Kingdom 9 H. 6.16 b. Lib. 10. Fol. 26.33 Inst Part 3. Fol. 202. Lib. 8. Fol. 125. One Corporation cannot make another by Usage or Prescription 40 E. 3. Fol. 3. â—9 Ass 8. Brok. Corporation n. 45. Neither can â—â—e King give License to any one to make a Corporation Lib. 10. Fol. 27. b. But one Corporation may be made out of another by the King 9 E. 3. Fol. 18. The King may if he pleaseth make a limited Corporation or a Corporation to a special purpose as to take and not to give oâ— Conditional to pay Rents c. P. 11. Jac. en le Excheq St. Saviours Case 21 E. 4.59 2 H. 7.13 Dy. Fol. 100. a. If the King grants Hominibus De Dale to be quit of Toll they are a Corporation to that purpose 21 E. 4.55 56. The King grants Civibus de Norwico quod non ponantur in Juratis c. the grant is good and makes them a Corporation 21 E. 4.55 56. 2 H. 13. 7 H. 4.44 When a Corporation is rightly Created all Incidents are tacite annexed to it Lib. 10. Fol. 30. b. St. Saviours Case If the King Creates a Corporation and doth not give any express Power in the Letters Patent to make Laws or Ordinances yet this Power is incident to the Corporation and is included in the very Act of Incorporating as is also the Power to Sue to Purcase and the like but these Laws ought always to be subject to the Laws of the Realm as Subordinate to it Heb. Rep. Fol. 285. Therefore every Law made by any Corporation ought to be 1. Remedium Congruum a fit Remedy to redress the Mischief 2. Bonae fidei rationi Consonum Consonant to Justice and Right Reason 3. Pro Communi utilitate Civium aliorum fidelium Domini Regis for the Publick Profit of the Citizens and other the good Subjects of the King and therefore Ordinances or Laws by them made pro privato lucro and not pro bono publico for private Advantage and not for the publick Good are void Lib. 5. M. 32. 33. Eliz. BR Chamberline de Lond. Case Hob. Rep. Fol. 212. P. 14. Jac. Rot. 907. Norris Stamp A Franchise or Liberty is a Royal Priviledge in the Hands of a Subject of some Benefit Power or Freedom that Persons or Places have above others Crompt Juris Fol. 241. Franchises are real or Personal Franchises Real are Priviledges annexed and given by the King to some Place as County Palatines Corporations Lamb. Eâ—ren lib. 1. c. 9. Plowd Fol. 123. Crompt Juris 137. Franchises Personal which are granted by the King to some Person or Persons as Exemption from Juries from Toll 21 E. 4.55 56. All Franchises were Originally derived from the Crown but now by continuance of Time are Claimed and had in some Cases by Prescription Inst Part 1. Fol. 114. Lib. 9. Fol. 23. Boult Part 1. Fol. 57. Part 2. Fol. 235. Mores Rep. c. 918. If a Corporation Claims some Priviledges by Charter and others by Prescription and so couclude Et eo Warranto utitur it 's good in Law Mores Rep. c. 443. Amongst Franchises some are more Royal as the Franchises of Counties Palatines c. Others less Royal as Markets Fairs c. Of these some lye in doing as to make Justices of Peace to Pardon Felonies c. Some lye in having as the Goods of Felons of Fugitives Wayses Estrays Dy. Fol. 44. Plowd Com. Fol. 169. Others do lye in Discharge as Exemption from Payment of Subsidies c. Henry the Sixth by his Letters Patent 20 H. 6. Granted to Corpus Christi Colledge in Oxon that they and their Successors and their Tenants should be discharged of Payment of Toll for Pontage and Passage in every Place within England and adjudged to be good T. 43. Ch. B R. Enter Wood Hawksel Rolls Abr. Tit. Prerog l. 2. Fol. 198. The Isle of Guernsey for Eight Years was discharged of all manner of Tolls Exactions and Customs Rot. Parl. 14. R. 2. n. 30. Tenants in Ancient Demesnes are free and quit of all Tolls in Fairs and Markets for all things concerning Husbandry and Sustenance Inst Part 4. Fol. 269. 21 E. 4.59 Some Franchises may be Forfeited 1. By a Non-User Some 2. By a Refuser And others 3. By an Abuser or Mis-user 1. By Non-User as those Franchises which are pro bono publico and therefore if one hath a Leet to keep and never keep it or a Clerk of a Market who never attends his Office these by Non-user are Forfeited The Non-user of a Fair or Market is no cause of Forfeiture 2 H. 7. Fol. 11. But the Non-pursuit or Arresting of Felons by him that hath the Franchise it may cause a Forfeiture 3 E. 1. c. 9. 39 H. 6.33 34. 2. Refuser The Abbot of Crowland had a Gaol wherein divers Men were Imprisoned and because he refused to deliver them but detained some of them who were Acquitted of Felony after their Fees paid the King seized the Gaol for ever 20 E. 4.6 The King granted to the Abbot of St. Albans to have a Gaol-delivery and divers Persons were Committed to the Gaol for Felony and because the Abbot would not be at Cost to make Deliverance he detained them in Prison long time without making Lawful Deliverance the Abbot had for that cause Forfeited his Franchise and that the same might be seized into the Kings Hands 8 H. 4.18 20 E. 4.6 Brok. Tit. Forfeiture Inst Part. 2. Fol. 43. 3. Abuser or Mis-user If a Corporation hath Franchises and Abuse or Mis-use them they may be Forfeited Inst Part 1. Fol. 183. The same Law if they take for Murage more than they ought to take by their Grant West
fo 20. And any Town may make a By-law amongst themselves that no man there shall put their Cattel within the Commons before Michaelmas upon pain of 20 s. adjudg'd that that binds them but no Strangers shall be bound by it 20 H. 7.40 11 H. 7. fo 14. 21 H. 7. fo 29. And therefore that Ordinance or By-law made by the Guardians and the Fellowship of Weavers of Newbury That no person should use the Art of Weaving within the said Town of Newbury except he had been an Apprentice to the Art within the said Town and had used it there by the space of five years before the said Ordinance or were admitted by the Guardian and Fellowship upon the pain of 20 s. a month is void because it excludes Strangers though they have served as an Apprentice for 7 years to the said Art and because it did restrain the Liberty of the Subject Hol. rep fo 211 212. This Ordinance made by the Mayor and Commonalty and Citizens of London in their Common-council assembled is against Law it restrains the Kings Subjects in their Liberties which are their rightful Inheritance Every one that comes to their Markets with Victuals c. without which they could not subsist must pay c. if not they must be turned out c. Solve aut abi this is pro privato lucro But that Ordinance for carrying their Broad Cloth before sale thereof to Blackwel-hall to be searched was pro hono publico and for that reason did oblige Strangers that did not bring their Cloth to be searched lib. 5. Chamberlain of Londons Case Money cannot be raised or charged upon the Subject but by Act of Parliament If the King himself cannot do it I am sure no Corporation can having no power Authority or Jurisdiction but what is originally derived from him It 's not the quantity of Money levied by them but the manner of the raising of it by a Legislative Power unjustly usurped in their Common-council It was not the quantity of the Ship-money but the raising of it without a Parliament which was the Crime Quos una culpa nectet eos una poena plectet and that must be the Seising of their Liberties A Man takes two pence for every Barrel of Beer which shall be Landed at a certain place near to the Sea this is not lawful although it be upon his own Land for this is to Levy a new Custom which he could not do Rolls Abridg. tit Praerogat fol. 571. An Information was against Morgan for raising of two pence for every parcel of Beer landed at Crockernepit in the County of Sommerset near Bristol he was found guilty was Fined one hundred Marks and imprisoned by Judgment of Court upon one of the Articles in Eire That it shall not be lawful for any person to raise a Tax Rate or Custom upon the Subjects of the King though on their own Land P. 11. Car. 1. Rolls Abridg. Tit. Praerogat fol. 571 2. The Contriving Imprinting and Publishing of the Petition to be presented to his Majesty containing much scandalous Matter in it and Reflections upon his Government I agree it 's lawful for any Subject to Petition to the King for redress in an humble manner when he finds himself grieved for access to the Sovereign must not be shut up in case of the Subjects distresses but on the other side it 's not permitted under colour of a Petition and Refuge to the King to make ill Reflections on his Majesty and his Government If a Scandalous Letter be sent and delivered to a person who received it though the party which sent it did never publish it yet it 's punishable for the King and Common-wealth are interessed in it for such Letters do tend to the breach of the Peace and to the stirring up Challenges and Quarrels and therefore the Means of such Evils as well as the End are to be prevented Hob. Rep. fol. 62. Barrow's Case If a Man Imports Books writ beyond Seas against the Kings Supremacy knowing the effect of them and offer them to any Subjects he is within the danger of the Statute 5 Eliz. So of those that teach the Contents and affirm it to be good the same of him that conveys the Books secretly to his Friends to perswade them to be of that opinion the same of them that Print and offer such Books within the Nation Dy. fo 282. T. 6. Car. 1. An Information was Exhibited against Bonham Norton his Son John Norton Lee May Tho. Smith c. for contriving a Slanderous Petition to the King and for charging of the Lord Keeper with a Bribe for making of a Decree and they were Sentenced T. 6. Car. 1. Doctor Leighton was Sentenced for Making Imprinting and Publishing of a detestable Book containing in it Treasonable Matter against the King and inviting the Subjects to Rebellion Perkins was Sentenced to pay One thousand pounds and Imprisonment during his life because he dispersed a Seditious Letter against the Loane of King Charles the First for the King sent to the Free-holders to lend to him Money Huttons rep fo Veritas convitii non excusat convitiantem a poena Penry for publishing Scandalous Libels against the Church-Government was Indicted Arraigned Attainted and Executed P. 35. Eliz. inter Placita Coronae in Banco Regis New Book of Entries fo 252. Williams a Papist and Barrister at Law Indicted of High-Treason for writing two Books the one called Balaams Ass and the other called Speculum Regale because he affirmed the King should dye before 1621. and for saying that England was the Habitation of Devils and that it is the abomination of desolation By all the Judges it was High-Treason at Common-Law for these words import the End and the Destruction of the King and his Nations and that false Religion is there maintained which is a motive to the people to Rebellion And although the Book was enclosed in a Box sealed up and conveyed secretly to the King and never published yet he was Attained for High-Treason and Executed at Charing-Cross P. 17. Williams of Essex Case Rolls rep part 2. f. 89. In the time of Henry the Eighth upon the Dissolution of the Monasteries there was a great Rebellion in the North of England the Dean of Windsor being told of it said The King had brought his Hogs to a fair Market and a parson hearing of it said Principibus obsta serò medicina paratur because the words of the Dean had an ill Reflection upon the Government and of his Majesties Management of the Affairs of State they were both Indicted of High-Treason for speaking the words and were found guilty and the Dean was attainted of High-Treason but the Parson because he was so ignorant as many times Ignorance is the best Sanctuary that he did not know the difference between Principiis and Principibus he was Reprieved and obtained his pardon of the King Every Libel against a private person deserves severe punishment for it incites
all of the Family Kindred and Society to revenge and tends to Quarrels Verba movent litem lis vulnera vulnera Mortem against a Subordinate Magistrate it 's a greater offence because it scandalizes the Government for Injuria crescit decrescit secundum dignitatem personae But against the King who is the Supream Head of the Common-wealth Pater Patriae it 's a Crime of the first Magnitude And how fatal and pernicious the publishing of Scandals and Libels have been to the Kings of England and to their good Subjects this Nation is very sensible 7 E. 1. the King sent Commissions to all the Counties of England to enquire de Spersoribus Rumorum and 25 E. 1. Declaratio Regis missa fuit ad omnes Comitatus Angliae de Rege purgando de certis rumoribus iniquis contra ipsum ortis c. Rot. Parl. 7 E. 1. M. 13. Rot. Patent 25 E. 1. pars 2. M. 7. A Declaration of the King was sent to all the Counties of England to purge him of certain false and unjust Rumours and Scandals raised against him Rex mandavit Majori Vicecomit London Quod facta inquisitione de sparsoribus rumorum Seditionem in Civitate ipsas caperent in Prisona de Newgate detinerent 20 E. 3. pars 1. M. 18. 26. The King Commands the Major and Sheriffs of London that they make diligent inquisition of the spreaders of False Reports and Sedition in the City and that they should seize upon them and keep them in the prison of Newgate As for the Petition imprinted and published by the Major Aldermen and Citizens I hope it was acted by many of them out of a principle of Piety and Loyalty but must needs be looked upon as an action of no great discretion in them to say no worse for to make such ill reflections upon his Majesty when the King by his Oath is bound to do Justice and Nulli Negavimus is one of his Royal Attributes Ob. But it hath been said That no acts bind beyond the Corporation but such as are done under their common Seal therefore they cannot present a Clerk to a Living but by Deed sub Communi Sigillo 13 H. 8 12. nor make a Surrender 33 H. 6.17 34 H. 6.21 nor assign Auditors 4 H. 7.17 7 H. 7.9 Et hujusmodi so their Laws and Constitutions made in their Common Council do not bind because they are not under their Common Seal Answ Excellent Logick he must be a rare Chymist that can Extract such a Consequence from the Premisses The Common Council of the City is a Parliament of the City the Mayor is the King the Aldermen the Peers the Commonalty the Commons and what they there Enact and Ordain is upon Record Jones Rep. Fol. 540. Therefore those Constitutions and Ordinances by them there made being Enacted in a Court of Record if not Warrantable make the more against them and what is then by them Enacted is of greater Force and Puissance than if it had been under their Common Seal If they appoint an Attorney at Law or Bayliff in their Common Council they may justifie any Act which doth belong to their Office Sans monstrans de fait c. for it 's to the Use of the Corporation 12 H. 7.25 26. They certifie their New Mayor Yearly in the Exchequer because it 's entred on Record 13 H. 8.22 vide lib. 10. l' Guardians 8. S. Saviours Case 14 H. 8.29 12 E. 4.9 10. IV. If the Mayor Commonalty and Citizens have done any Act in their Common Council whereby to Forfeit their Corporation and Franchises Where a Franchise is absolute and entire and hath no dependence on another Franchise then if any incident to it be Forfeited the whole Franchise is Forfeited 22 Ass 34. Palmers Rep. Fol. 82. en l' Case d' Corporation d' Maydenhead But the Corporation of London is a Franchise Court d' Entries Fol. 527. Palmers Rep. Fol. 82. absolute and entire and hath no dependance on another Franchise therefore the Forfeiture of any incident to the Corporation of London is a Forfeiture of the Corporation To make Laws and Ordinances for the well Government of the Corporation is incident to every Corporation Hob. Rep. Fol. 211. But the Corporation of London hath abused and mis-used this Power therefore they have Forfeited their Power to make Laws and Ordinances which is incident to their Corporation therefore they have Forfeited their Corporation the abuse of the Court of Pye-Powders being incident to a Fair is a Forfeiture of the Fair 7 H. 4.44 otherwise of Toll because it 's not incident to the Fair or Market Palmer Ibid. Object There is a Stat. 7 R. 2. That the Citizens of London shall enjoy all their whole Liberties whatsoever with this clause Licet usi non fuerint vel abusi fuerint and notwithstanding any Statute to the contrary 7 R. 2. n. 37. Answ This is no Act of Parliament but an Act of Grace of the King in Parliament For no assent of the Lords c. do appear but only per dominum Regenâ— Consilium suum which must be intended his Privy Council if it had been otherwise then Consilio Comitum Baronum c. as 35 E. 1. apud Carlioten Stat. de Asportatis Religiosorum c. â—ut admitting it to be an Act of Parliament it doth only extend to 〈◊〉 Offences and Crimes which they had committed or omitted and not 〈◊〉 â—â—ose that shall be committed or omitted by them de futuro If otherwise it would have been against all Reason and Justice and by consequence void and that it must be so read the Kings Answer to the Petition of the Commons at large Jones Rep. Fol. 241. And if we look into all the Statutes which confirm the Liberties of London viz. 14 E. 3. c. 1. which confirms all Reasonable Liberties 2 H. 4. c. 1. the Liberties which have been duly used 3 H. 5. c. 1. all except such as are Repealed by the Common Law 2 H. 6. c. 1. All Liberties well used and not Repealed by the Common Law There is no Statute or Prescription Warrant any of their Actions but only such as are consonant to Right Reason and Justice Qui Muragium ad villam clandendam gravius ceperint quam concessum fuerit per Chaâ—tam Regis perdant ex tunc gratiam suae concessionis graviter amerciantur Fleta lib. 2. c. 43. They which shall take more Murage than is granted to them shall lose the Benefit of their Grant and shall be grievously Amerced Le ley voet quo chescan perdera son Franchise que eo misuera Mirror c. 5. § 4. The Law wills that every one shall lose his Franchise which mis-use it And Bracton saith that Libertates possunt amitti per abusum vel non usum Bract. lib. 2. Fol. 56. lib. 3. Fol. 117. And it 's to be Observed that where the Law saith that they shall lose their Liberties or their Grant it 's to be understood of a Forfeiture of them for ever Inst Part 2. Fol. 222. How the Mayor and Commonalty and Citizens of London have mis-used and abused their Franchise by Levying of such Sums of Money to the Oppression of His Majesties good Subjects is submitted to the grave consideration of all Sober and dis-interessed Persons A Leet was seized into the Kings Hands because they did take of the Offenders against the Assize of Bread and Beer 2 s. when they had no Pillory nor Tumbrel Rastals Entries Fol. 540. In the Eires of the County of Cornwall 30 E. 1. inter Placita Coronae infra Hundredum de Keryer there was prescribed that in Holston Burgh they did take de novo of every great Beast viz. Ox c. as well of the Buyers as of the Sellers one penny whereas they ought to take but one penny of the Buyer And that they take of Merchandises exceeding 12 d. of the Buyer ob and of the Seller ob whereas they ought to take but ob of the Buyer Rolls Abridg. Part 2. Fol. 523. The Justices in Eire did enquire of those which did take superfluous or undue Tolls in Cities Burroughs or elsewhere against the common Usage of the Kingdom Cap. Itineris vet Magna Charta It 's to be Observed that if the Defendants in a Quo Warranto made default their Franchises were seized into the Hands of the King and the King was to be Answered all the Profits and if they did not Replieve within the Eire they lost their Franchises for ever Iten Canc. 6 E. 2.7 Ob. If the Mayor and Commonalty and Citizens of London have committed any Offence the particular Persons which have transgressed ought to be punished but the Corporation cannot for no Trespass lye against a Corporation 22 Ass 67. Brok. Tit. Corp. n. 43. 15 E. 4.1 b. No Capias no exigent against it neither can it be Imprisoned 21 E. 4.69 70. 45 E. 3.2 3. Neither can a Corporation be bound in a Statute or Recognizance Moores Rep. 68. Answ His Majesty may proceed against them in their Politick capacity and so to a Forfeiture of their Corporation and Franchises or in their Natural capacities against any particular Persons of the Corporation which are Offenders and they shall be punished Secundum quantitatem qualitatem delucti according to the quantity and quality of their Offence Non oppressus liberant Qui liberos opprimunt They will not free those which are Oppressed who Oppress those which are Free. FINIS