Iudgment for the King The Iudgment must have two things in it 1. To damn the Corporation Quod penitus extinguatur excludatur from being a Corporation for the future for being wrongfully usurped it cannot be continued A Iudgment to continue Wrong and Vsurpation can never be a right Iudgment 2. A Fine to the King for the usurping it for the time past This Iudgment may and ought to be given where the Information is against particular Persons for usurping upon themselves to be a Corporation and they shall be fined and imprisoned but this cannot be where the Information is against the Body Politick for by the Iudgment the Body Politick is extinguished and dissolved and no Fine can be imposed upon that which is not So that hereby the King must lose his Fine which the particular Persons usurping ought to pay and the Law is agreeable always to it self and the means answerable to the end I suppose no man will affirm that where a Suit or Iudgment is against a Corporation that the Fine or Execution shall be against all or any particular Member For the Precedents and Authorities in this point 1. I do agree that there be Precedents in the Crown Office of Quo Warranto's brought against Corporations in such manner as this is brought for usurping to be a Corporation and to claim divers other Liberties Quo Warranto against the Bailiffs and Burgesses of Stratford P. 2 El. r. 1. for claiming to be a Corporation and to have divers Liberties and Franchises thereupon a Plea put in and a confession of their Claim by the King's Attorney The like against the Corporation of Reading the like Plea and confession M. 3 4 El. r. 4. the very next Term after the Information filed Against the Corporation of Horsham a Plea and confesson by the Attorney H. 14 Jac. r. 37. The like against the Corporation of Dover but nothing done upon it besides Plea put in H. 19 Jac. r. 26. H. 20 Jac. The like against Bath a Claim put in and confessed H. 20 Jac. r. 58. The like against Brackley and a Noli prosequi T. 3 C. 1. r. 22. The like against Baston a Claim put in and confessed The like against New Sarum Imparlance and nothing more upon it T. 2 C. 1. r. 47. T. 6 Car. 1. r. 43. The like against Bridgport Claim and Confession M. 2 C. 1. r. 36. The like against Biddeford a Claim and Noli prosequi The like against Witcomb they plead themselves a Corporation by another Name M. 8 C. 1. r. 42. and traverse the Name in the Information nothing more on the Roll. And it is probable there may be more like these but if of any authority they are for me and not against me 1. For that they all being for claiming other Liberties as well as to be a Corporation and being good and sufficient as to the other Liberties and Privileges that the Corporation claims though insufficient for this of claiming to be a Corporation they must be proceeded upon if the Attorney pleaseth But is any to be found where only the claiming to be a Body Politick and nothing else or if other things questioned yet only proceeded in as to this particular of claiming to be a Body Politick as in this Case That will be like 2. In all these nothing is done a Claim or Plea put in and that confessed or Non pross or not proceeded upon to Iudgment Perhaps not proceeded in because insufficient and so are Authorities for me For there being so many of these which are either Non pross or not proceeded in perhaps the Reason might be because insufficient in the Law as to the Corporation and so are Authorities for me in this Case But one there is found Quo Warranto vers Bailiffs and Burgesses of New Malton in Yorkshire T. 6 Jac. r. 3. Quo Warranto they claim divers Liberties as Courts Markets and others and amongst the rest to be a Body Politick They put in a Plea and make their Claim by Prescription Issue 's joined and tried by Nisi prius at York and found against the Corporation and a Iudgment entred Quod Libertat ' Franchesii predict ' in manus Domini Regis capiantur seisiantur quod Ballivi Burgenses capiant ' ad satisfaciend ' Dom ' Reg ' pro Fine suo pro Usurpacion ' Libertat ' Franchesii predict ' There is no mention of this Case in any Book or Report as far as I can learn so that this passed sub silentio Next how can this Iudgment be good 1. How can that be a right and lawfull Iudgment which shall be given for the continuing a thing that is by the very Iudgment adjudged to be unlawfully usurped and a Fine for it it is directly oppositum in Objecto 2. How can the Corporation be seized into the King's hands Extinguatur excludatur is proper the Corporation cannot be in the King 3. How could the Bailiffs and Burgesses be fined when they were vanished and gone there is no Corporation in being that which is laid upon a Corporation cannot be levied upon the particular Members I have made enquiry after this Borough of New Malton it is a small Borough within the Manour of the Ancestours of my Lord Eure it did anciently send Burgesses to Parliament but from the time of King Ed. 1. to the beginning of the Long Parliament 1640. it sent none then upon Petition a Writ ordered and they then and ever since have chosen Burgesses my Lord Eure being Lord of the Manour and offended with them did prosecute this Quo Warranto and they having neither Lands Revenues or Estates to defend themselves he easily prevailed they never in truth being incorporate nor having any Charter But that which I give for answer to these Precedents is 1. They are all where not only the being of the Corporation but also divers other Liberties were in question so that the Informations were good in part and not worth the while to question whether good as to that part of their being a Corporation The Fine upon them for usurping the other Liberties would have been more than they could bear or pay 2. That this is but one Iudgment and in a case of a small Borough and that Iudgment as entred not agreeable but inconsistent with the Rules of Law or Reason The Body Politick could not be feised into the King's Hands but whenever a Iudgment is given for the King for a Liberty which is usurped or extinct in the Crown The Iudgment must be quod extinguatur and that the Person that claimed them deinceps Libertat ' Franchesiis predict ' nullatenus intromittat ' sed ab usu earund ' a modo omnino cessat quodque the Person that used them pro usurpacion ' Libertat ' Franch predict ' super Dominum Regem capiat ' ad respondendum dict' Dom ' Reg ' de Fine
H. fol. 270. b It appears that the King first swore the Custos 16 R. 2. r. Cl. M. 30. Ind. and the Sheriffs to be true to him and also turned out the Aldermen And that the Proceedings were before the Duke of Gloucester and other Lords by a Commission to enquire of all Defaults in the Mayor and Sheriffs in the well governing of the City awarded upon the Statute made by the King's Grandfather and that they were convicted by their own Confession and thereupon the Liberty of the City seised The Pardon and Restitution entred 19 Sept. 16. R. 2. Lib. H. fol. 272. a ubi supra and thereby 't is recited that the Proceedings were upon the Statute and the Iudgment was That for the first Offence they should forfeit one thousand Marks for the second two thousand Marks and for the third Offence that the Liberty should be seized The Statute 28 E. 3. cap. 10. enacted That the Mayor Sheriffs and Aldermen of London which have the Governance of the same shall cause the Errours Defaults and Misprisions in and about the same to be corrected and redressed from time to time upon pain that is to say to forfeit to the King for the first Default one thousand Marks the second Default two thousand Marks and for the third Default the Franchises and Liberties of the City shall be seised into the King's hands And that the Tryall of these Defaults shall be by Enquests of foreign Countries and the Pains levied upon the Mayor Sheriffs and Aldermen Vpon this Statute were the Proceedings of R. 2. grounded The other side have likewise much relied upon another Seisure made of the Liberties of the City of Cambridge A great Riot committed by the Town upon the Vniversity 5 R. 2. Rot. Par. N. 45. Inst 4. 228. heard in Parliament by way of Petition and form of Articles exhibited by the Scholars against the Mayor and Bailiffs Vpon reading of which it was demanded of them what they could say why their Liberties should not be seised After many Shifts they submitted themselves to the King's Mercy The King thereupon by common consent in Parliament seised the same Liberties into his hands as aforesaid and then granted divers Liberties to the Vniversities and certain Liberties the King granted to the said Mayor and Bailiffs and encreased their former These are the most substantial it would be too tedious to repeat all for there have been in those days but not since many like Seisures of Liberties as these only general but nothing particular to our purpose and though not cited I shall also mention those in Crook Certiorari to the Mayor of Fith they disobeyed the Writ Cr. 1. 252. Tyndals Case and gave scurvey Words and thereupon Mr. Noy cited two cases of Seisures of Liberties The Bishop of Durham had contemned the King's Process and imprisoned the Messenger An Information exhibited against him the Offence proved adjudged he should pay a Fine 33 E. 1. rot 101. quod capiatur and should lose his Liberties for his time because Justum est quod in eo quod peccat in eo puniatur Another in Banco Com' a Prohibition awarded to the Bishop of Norwich 21 E. 3. rot 46. and he excommunicated the Party that brought the Writ the Party brought his Action adjudged against the Bishop that his Temporalties should be seised till he absolved the Party and satisfied the King for his Contempt and that the Party should recover 10000 l. Damages I answer to them 1. They were all above three hundred years ago except that of 16 R. 2. which is above two hundred and ninety and no such thing ever done since what stress or weight can be given to such Proceedings To what Rules of Law since known or practised can we bring these Proceedings Are they now legal Precedents for the like things to be done The Writs out of old Records for the Ship-money and the Knighthood-money had as good Records to warrant them and much more plain to the purpose than these The Precedents of Edward the Second and Richard the Second either of their Lives or of their Deaths or of the Lives or Deaths of some of the Iudges of those days ought as I conceive to be no Examples And for H. 3. E. 1. E. 2. and R. 2. and those times they were times of great troubles and disorders and what was then done is no Rule or Precedent for this Court or any other Court of Iustice to go by unless by later times allowed or approved No Law-book or Report of any judicial Proceedings either of E. 2. or of E. 3. or any later Book of Law that I have yet heard of or met with and I doubt not but if there had been any the King's Counsel would have made use of them hath ever given so much credit or countenance to these Proceedings as to take any notice of them To make use of old Records or Precedents the Grounds or Reasons whereof cannot now be known to subvert any Law or Government established is neither advisable nor commendable But for answer to them Resp As to that of 16 R. 2. that you see is grounded upon the Statute 28 E. 3. c. 10. and can signifie nothing to the present purpose for there according to that Statute they condemn the Mayor Sheriffs and Aldermen upon their Confession that they had misgoverned the City The Mayor and Sheriffs being committed to Prisons and this done before Dukes and Earls by special Commission to that purpose appointed and convicted by their confession for the first second third Offense all at once Is this of good Authority in Law And for the others that of E. 2. was before Iustices in Eire at the Tower the Office of Mayoralty seised into the King's hands and replevied from year to year And that Seisure that was made by King E. 1. for what Reasons or Grounds or by what sort of Proceedings doth not appear all that doth appear of it is that de facto Custodes and Mayors were put upon the City but quo jure who can tell We know these times were times of trouble in the Barons Wars The Barons Simon Mountford Earl of Leicester being their General 48 H. 3. faught a Battel with the King at Lewes and took the King and Prince Edward the first both Prisoners The Barons differing among themselves 49 H. 3. and the Earl of Gloucester joined with the Prince who got out of Prison another Battel was fought at Evisham and the great Earl Mountford slain and then at Winchester by Paliament all his Party and the Liberties of the City of London seised and in such times as these and which followed in E. 1. E. 2. and R. 2. it is not to be marvelled if there were many Seisures and Custodes put on the City 't is more a marvel they were not destroyed The Statutes made in these times shew not only the Disorders but that the Liberties mere greatly
should be forfeited not that it should be seized into the Kings hands only Now my Lord where all the Franchises of a Corporation are forfeited what is the Corporation Truly 't is nothing 't is but a Name a Corporation without a Power to act is nothing at all Indeed I do not find any Iudgment in a Quo Warranto of a Corporation being forfeited yet my Lord it doth not follow from thence that this cannot be by Law for many Quo Warranto's have been brought against London and other places too to out Corporations of their Franchises but it hath always ended in submission to the King and so they have been at quiet All the Quo Warranto's in Mr. Attorney Palmer's time after the Kings Restauration against the several Corporations they all submitted and yet that was to question the very being of their Corporations Now my Lord pray consider a little upon the Rule of Law It should séem very strange if a Corporation should neglect to come into Eyre or into the Kings Bench the same Term that a Quo Warranto is brought against them they must be outed of their Franchise for ever as 't is said 15 Ed. 4. 6 7. And yet when all the contempts and oppositions imaginable are found upon Record that this should not be a forfeiture that seems absurd that a Neglect in Eyre should do it but all the Oppressions and Offences in the World when found upon Record should not do it But my Lord the mischiefs that would follow from hence are very great How many Oppressions and Offences would be daily committed if every Corporation were a Franchise and Iurisdiction independent upon the Crown and the punishment truly of some particular Men for those Offences would not be adequate where the power of offending and misgoverning should still remain sure that were no adequate redress of such an inconvenience And to this purpose my Lord I shall humbly offer a Case and 't is that great Case betwéen the Earls of Gloucester and Hereford Hill ' 20. Ed. 1. in B. R. rot Wallie 14. 'T is likewise in Riley's Placita Parliamenti 83 86. The Case is this in short They both claimed the Liberty of Returna Brevium and they had incurred great contempts in refusing to obey the Kings Writs and Iudgment was given against them That the Liberty should be seized for this reason which I think will go a great way in this Case and for which I offer it Quia puniendus est Dominus Libertatis in eo quo deliquit I think my Lord as I said that will go a great way in this Case to shew the Reason of the Law My Lord If the granting of too many and too large Franchises were a mischief as certainly it was by Law and as appears by the Commons Petitions 21 Ed. 3. rot Parl. No. 17. where they pray That new and large Franchises may not be granted because it tended to the overthrowing the Common Law and great Oppression of the People And the Kings Answer was That care should be taken for the time to come I say then if this were such a mischief that there ought not to be granted new and large Franchises much more would it be a mischief if these Franchises should not be under the controul of the Law when they exercise such Oppression And so my Lord I shall leave that point for I think it will be pretty clear that a Corporation may forfeit their being of a Corporation 2. I shall next than consider whether the City of London be in any other plight than any other Corporations I think truly there is no difference at all Now this Question doth depend upon what they have set forth by their Plea And that is the confirmation of Magna Charta cap. 9. Civitas London habeat omnes libertates suas antiquas consuetudines suas And then their Act of 1 E. 3. upon which my Lord Coke in his 4 Inst 253. says that the Franchise of this City shall not for any Cause be seized into the Kings hands And then theirs of 7 R. 2. which says that the City shall enjoy its whole Liberties Licet usi vel abusi This is their Foundation upon which they would distinguish this City from all other Corporations Now as to these things I give these Answers First for Magna Charta that plainly is no more a confirmation to them than 't is to other Cities and Corporations For not only the City of London is named to have its ancient liberties and customs preserved but 't is likewise Omnes aliae Civitat ' c. And all Cities Burroughs and Towns and the Barons of Cinque Ports and all other Ports should have all their Liberties and Frée Customs So my Lord Coke agrées it in his Comment And in what he cites out of the Mirror of Justice and other ancient Authors of our Law they should enjoy their Franchises which they had right to by lawful title of the gift and confirmation of the King and which they had not forfeited by any abuse So that the Act which confirmed them did not purge former forfeitures much less did it license other abuses Then for their Acts of 1 E. 3. and 7 R. 2. I shall humbly offer this That as they are in Truth no Acts of Parliament at all so they will not concern this Question whatsoever my Lord Coke says concerning them But I shall give some instances before these Acts to shew that they never had such an unquestionable Power as they now dream of and then some instances in after times that there either were no such Acts or no such sense at least is to be put upon them as they have strained to make First it appears 15 E. 1. that the Franchise of the City of London was seized into the Kings hand and Johannes de Britton was made Custos Civitatis London who was no Freeman and this implies that the Franchise was seized into the Kings hands for they had a power to choose de seipsis by Charter from King John a Citizen to be a Mayor or chief Governour but here was another Governour appointed them Then Rot ' Pat ' 26 E. 1. Rex pro bono servicio Civit ' London ' reddit eis Civit ' suam London habend ' dict' Civibus ad volunt ' Regis Teste Rege So that both the City and all its Franchises were seized at that time for he restored the very City of London to the Citizens habend ' during his Will and Pleasure Thus my Lord it stood in the time of E. 1. Then in the time of E. 2. seized again 14 E. 2. memb 21. of the Pat ' Rolls in 21 Rex dimisit Civibus London ' Officium Major ' Civitat ' London ' 15 E. 2. Rex dedit licentiam eligendi Major ' London ' And in the second part of Pat ' Rolls 15 E. 2. m. 5. The King recites That whereas in the Fourtéenth year of his Reign he had
Information but never was it thought that it could affect the being of a Corporation If it should do so I do not know whither it will go at last The greater or the lesser Sum is not that that will difference the Law Is it a Forfeiture to receive 5000 l. Why is it not a Forfeiture to receive 500 Why not to receive 5 s. Why not to receive 5 d. No bounds can be set for that if it be a transgression of the Law here is a Tort and a Wrong done by your By-law that you have levyed 5 d. and therefore all this great Inheritance of London this that is the greatest Inheritance of the Kingdom is forfeited for a Trifle upon three half pence or a Basket of Eggs. Nay my Lord To go further I say if this be a Forfeiture I say 't is only a Forfeiture of the Market nay not so much neither 't is only a Forfeiture of the Toll my Lord I cannot but once more mention that excellent Notion of my Lord Hobart That the Power of making By-Laws is included in the Act of the Corporation for as reason says he is given to a natural Body to govern it so a Politick Body must have Laws as its reason to govern it Now then the making of these Laws is but the exercise of that reason declaring the mind of the Corporation for the direction of the Officers of it what to do and what to take and 't is but like the mind of a man that directs his hand what to do For this is not like the Duty of Stallage that relates to the Publick and relates also to something that before they had no interest in but only relates to the administration of a private property and directs the manner of that administration They are Lords of the Market and that is casual to them it is not necessary for them so to be If any Corporation bid their Officers levy so much mony suppose they bid them take more Toll than is due or levy more mony for Rent than is due for the Land why this might be looked upon as a great Breach of Trust and Encroachment They should have had but 6 d. and they took 7 d. and this done by Act of Common Council which is their way of expressing their mind yet surely it would be no Forfeiture because the Land is their own and the administration of it belongs to them only in point of interest and property Suppose a Gentleman has a Market and his Reason which is his By-law as my Lord Hobart says puts him upon taking of Toll but he does a little mistake the Law or the Custom he bids his Servant take so much which perhaps may be too much for Toll does this destroy his capacity of Suing and being sued You may as well say such a particular person shall not plead or be impleaded if he do so and so Nay this if he were a Denizen does not forfeit his Denization and yet a Denizen is as perfectly a creature of the Kings as a Corporation is It is Basilicon Doron it is the bounty and kindness of the King to one born out of his Dominions to give him the capacity of a Subject to sue and be sued and the like which cannot be forfeited even for breach of Conditions in the Letters Patents of Denization For this is within Versellin Mannings Case if he does not observe the Laws of the Land 't is true he must be punished for it but he shall not be undenizen'd My Lord There is a Statute which I think is a most plain Declaration of the Law in this Case and 't is the Stat. of West ' 1. ca. 31. Some call it the 30th because they differ in the numerating and heading of the Chapters 'T is the Statute concerning those that take Outragious Tolls in Market-Towns The Statute says Le Roy prendra le Franchise del ' March en sa maine The King shall seize the Franchise into his own Hands My Lord Coke in his Comment upon that Statute says He shall seize the Franchise of the Fair or Market till it be redeemed by the owner that 's all But this is intended says he upon an Office to be found for in Statutes all incidents shall be supplyed by intendment Now in the Quo Warranto that was brought against the Corporation of Maidenhead in Palmer's Reports there is this very case That Corporation took an outragious Toll too much Toll or that that was not justifiable for going over their Bridge Yet it was so far from being imagined that this should be a forfeiture and yet the Case is the same let any man distinguish it that can that it was a Question whether the Market was forfeited or no as you may see in that Book fol. 82. And there 't is said by Dodderidge and at last it was agreed by all the Court that it should be a forfeiture only of the Toll and not of the Market And I desire that that Folio may be noted by your Lordship and that you will please to look into what is said in that Case for 't is debated before and it seemed as if they would have forfeited the Market by it but not the Corporation and yet that was not forfeited neither And to this I will apply that rule that Mr. Solicitor himself did mention Puniatur in eo quo peccat You have offended in the Toll therefore you shall suffer in the Toll not in the Market to be sure not in the Corporation For if it were that it should affect the Market it would be because it hath some relation to a Market as a Toll hath but how can this possibly affect or touch the Corporation The Statute indéed goes thus far and says Whosoever shall take Outragious Toll shall forfeit the Market but then shall we come and add Whoever shall take outragious Toll shall forfeit his capacity of holding a Market or any thing else Do they complain of us for taking the Legislative power upon us and therefore we shall forfeit our Corporation when the Statute it self has appointed the punishment and says only the Market shall be forfeited and so make a new Law themselves Statutes are supposed to be penal enough of themselves and all penal Statutes are to be taken equitably as to the penalty and not stretch'd beyond the Letter And wherever a Statute inflicts a penalty and says you shall forfeit so much as my Lord Hobart says the Common Law shuts up the Negative that you shall forfeit no more How then is it possible we should forfeit that which if it were forfeitable at all is not within the provision of this Law 'T is true as Mr. Solicitor hath said in the Book of Assizes that he cited in Vet. Nat. Brev ' 161. It is said you shall forfeit in the case of a mis-user where the Liberties are not depending one upon another only the Liberty that is abused but how that can be applyed for him