general Words in an Act of Parliament According to a Case 2 E. 3. wherein it was adjudged that though the Stat. of Westminster gave an Attaint against a Jury for a false Verdict an Attaint would not lie upon a Verdict in the City of London because of the Credit the Oaths of a City-Jury had by Prescription before the Statute Since therefore the County of London is the City's Farm and of such a Nature that what belongs to the Farm is not separable by the general Words of an Act of Parliament neither will the discharging the Sheriffs otherwise than at the Pleasure of the Electors that is of the City duly represented at least for that Purpose be to be taken from the Electors by a less Authority than a Parliament And if a Parliament cannot do it by general or doubtful Words much less can any others But to evince that the discharging or amoving is incident to the Right of the Election I must observe that in other Counties which are not of Fee though the Choice of Sheriffs was at common Law in the Freeholders of the Counties yet the Sheriffs had their Commissions and Authority from the King And as they have their several Bailywicks under them they were and are the King's Bailiffs of the whole County which in many Records is stiled their Balliva or Bailywick And though ordinarily the King constitutes them his Bailiffs for a Year they at Common Law were amoveable at his Pleasure But as the County of London is the City's Farm it is the Sheriff's Bailywick under the City whose Election and Confirmation constitutes him Sheriff without any Commission from the King And because the City is answerable to the King if the Sheriff be not able though not for his Crimes which several Charters provide against the Sheriffs used antiently to find Sureties to indempnify the City The Sheriffs therefore being but Bailiffs to the Electors in the Nature of the thing are amoveable or dischargeable by them and consequently by them only unless we suppose two supreme Powers within the City which according to Grotius's Argument against the Plurality of Gods are absolutely inconsistent 2. If there were any Question whether the discharging Sheriffs at Common Law belongs to the Electors Charters confirm'd by Parliament put it beyond Dispute In a Charter 1 Joh. after the Confirmation of the Sherifwick of London and Middlesex with all the Customs and Things to the Sherifwick belonging at the Rent of 300 l. per annum with a special saving to the Citizens of London of all their Liberties and free Customs it adds Moreover we have granted to the Citizens of London that they from among themselves may make Sheriffs whom they will and amove them when they will This is not only confirm'd in general by that King 's Great Charter at Runny-mead or Redden-mead and by H. Third 's Great Charter under the Cities Liberties and free Customs but by the express words of a Charter 11 H. III. and by two Acts of Parliament at the least one 1 the other 7 of R. II. In the first of which this is preserv'd among other Rights tho' not us'd And in the later tho' not us'd or abus'd And all of them are repeated and confirm'd 2 E. IV. And that of 7 R. II. is exemplified under the Broad-Seal 8 J. I. It is observable That the managing Part of the City took Care to leave the Parliamentary Confirmations of this and other Clauses which possibly they thought too much to favour the Commonalty out of the Confirmation of their Charter 16 C. II. However the Acts of Parliament stood in no need of Confirmation and the late Exemplification of the most considerable of them confirming the rest removes the Pretence of their being antiquated or lost by any supposed disuse And besides what I have mentioned according to the Cities Plea to the Quo Warranto in Michaelmas-Term 1681. The entire Benefit of these Charters in this Point was confirm'd 5 H. VIII 2 E. VI. 1 Mar. 4 Eliz. 6. J. I. 14 C. I. To which not to mention others I may add the Statute 7 H. IV. which after providing that Holy Church the Lords-Spiritual and Temporal and all the Cities and Burghs have and enjoy all their Liberties and Franchises before that time granted adds And that the Great Charter and the Charter of the Forest and all the Ordinances and Statutes made in the time of our Sovereign Lord the King and in the time of his Progenitors not repealed be firmly holden and kept and duly executed in all Points It may be material here to shew how the Law as to the Cities Liberty and Franchise for the chusing and amoving Sheriffs was taken in the next Reign after the making that Statute In the 6th of H V. a Sheriff dying in his Shrievalty the Mayor Aldermen and the more sufficient of the Commons that is as will afterwards appear the Livery-men were summon'd before the King in Council to shew their Right to chuse upon the death of a Sheriff They appearing answer by the Recorder That among other the Libertus granted to the Citizens of London and ratified in divers Parliaments it is conâ—â—iâ—ed That the Citizens of London may make Sheriffs of themselves as often as they will and amove them when they will By reason of which Liberty they say That often hitherto after they have chosen Sheriffs from among themselves who have behaved themselves ill or died as it now happened they have chosen others in their stead This Plea was then allowed by the Counsel or before the King in Council where such Matters us'd to be determin'd And it was said to the Mayor and Commons That they should use as they had done hitherto Where the Chusers and Amovers are agreed to be the same And that these were the Mayor and Aldermen with the more sufficient of the Commons And if it will appear that these were the Livery-men here is a Judgment of that time That according to the Charters confirm'd by Acts of Parliament the chusing and amoving or discharging of Sheriffs belongs to the Livery-men and consequently to none besides If the above-mentioned Charters and Acts of Parliament in affirmance as I have shewn of the common-Common-Law are not enough to preserve the Cities Right of amoving or discharging Sheriffs as well as chusing them and if they may not chuse Persons exempted by Order of a Common-Council as well as others it is in vain to talk of such a thing as Legal Rights For none can be more firmly and plainly established If it be said That the City has this but not the Citizens which meet in Common-Hall It may as well be said That they are not the Electors in any Case for whoever are by Law the Electors have Right to disallow Exemptions by others even by the King himself as in Rowlet's Case and to amove or discharge in as full
Liberties of the City rested in the whole Body of the Freemen and the whole Body of them have regularly voted in making Laws for the Benefit and Government of the City before they had any Charters and since 2. That whoever are legally possess'd of the publick Common-Hall are intituled to all the Authority which the whole Body ever had especially in those Matters wherein the present Possessors exercise Authority and that the Livery-men have this Right 3. That a Representation of the Commons by the Mysteries was settled in the Council-Chamber with Authority to make By-Laws before any Common-Council of the present Form had such Authority And however that the Authority of that Council was soon taken away by Act of Common-Hall and lodg'd for some time in the Representation by the Mysteries 4. That whoever are intituled to the Council-Chamber that Council is a meer Creature and Committee of the Common-Hall by it entrusted with the dispatch of some things and for preparing others for its ease And whatever Power they have about Circumstances cannot by their Act deprive the Common-Hall of any Right 5. That there is no colour to believe that the Common-Hall as now compos'd received its Being or Authority from such Common-Council as now acts or from any thing but the general Consent of the Freemen express'd in some Act of Common-Hall before the Time of E. 4. or imply'd in the long submission of the rest of the Freemen before that Time or since 1. As I before observ'd the Confessor's Law derives the City's Laws Rights Dignities and Royal Customs from its first Foundation I may add that it says in every County there ought to be a Folkmote on the first of the Kalends of October there to provide who shall be Sheriff and who shall be their Heretochs and there to hear their just Precepts by the Counsel and Assent of the Peers and Judgment of the Folkmote That London had such a Folkmote and the Judgment of that Folkmote extended to the making by-By-Laws before the Time of the Confessor appears by the following Instance In the Time of King Athelstan above 120 Years before the reputed Conquest Laws had been made at Gratelie Exeter and Winresfeld or rather the Laws made at Gratelie were ratified at the two other Places all the wise Men not being able to meet at the first These Laws are not only received by the Earls or rather Companions and Townsmen or Citizens of London but they make considerable Additions to them for the Good of the City Their Act or Judgment is called the Constitution which the Bishops and Head-boroughs who belong to the Court of London have made or published and which the Earls or rather Companions or Companies and Townsmen have confirm'd by Oath in their Free-Gild There among other things they provide that no Thief above 12 Years old found guilty by Inquisition or upon Trial shall be spared And that he who was rob'd having receiv'd his Capital or Principal the King should have half the Society should share the rest with the Lord of whom he held Book-Land or Bishops-Land It provides for a Common Stock for the Good of all and that all in common shall inquire into the disposal of it It settles Decennaries or Tythings and that there shall be one over 'em who shall summon them for their common Profit and take an Account what they send when they are to contribute or be taxed and what when they receive Money by Order of all the Citizens upon their treating together With other Particulars which I need not mention this being enough to shew their Authority at Common Law before the reputed Conquest Then which was above 750 Years since they had their Guildhall and as the Confessor's Law shews their Court of the Hustings which in that Law is spoken of as an antient Court and all things of Moment seem to have been transacted there till the Numbers of Freemen so encreased that they could not all meet in the Hall but were forc'd to keep their Folkmotes in the open Air at St. Paul's Cross where was a very wide Field before there were Buildings to the Water-side I shall not detain the Reader with the many Presidents of their Assemblies there upon all emergent Occasions but must observe that as late as 19 E. 2. they prescribed to a Right of holding Assemblies there I shall give but one Instance how early the Aldermen with those who called themselves the more discreet of the City would have usurp'd upon the Rights of the Commons in their Guildhall or Folkmote in the open Air. At the end of H. 3 's Reign the Citizens according to Custom had met in Guildhall for the Election of a Mayor the Aldermen and more discreet of the City would have chosen Philip the Taylor the Commonalty contradicted it with great Noise and chose one Hervey and placed him in the Chair Upon this the Aldermen and their Party complain to the King that they were over-run by the Commonalty The People follow'd them with great Noise to the Disturbance of the King who lay upon his Death-bed and cried that they were the Commons and to them belong'd the Election of a Mayor The others said they were the Head and the People but the Members the King's Council put them off till next Day and bid Hervey not to come to Court with more than ten in his Company However he summoned all the Citizens except those who adhered to the Aldermen And next Day a vast Number of Horse and Foot came to Westminster The King's Council finding they could not agree threatned to amove Hervey and put a Custos over them To avoid which they agreed that five should be chosen of each side to settle who should be Mayor However this being in Diminution of the Right of the Commons took no effect H. 3. dying the Archbishop the Earl of Glocester and others of the Nobility came into the City where they caused E. 1. to be proclaimed King and then went into Guildhall where a Common Hall was then assembled and enquiring about the Business of the Mayor the Aldermen told them the Matter was left to Arbitration The Earl of Glocester not valuing this bids them hold a Folkmote the next Day at St. Paul's Cross and he should be the Mayor to whose Election the major Part of the City should assent The great Men going into the Church with the Aldermen perswaded them to yield upon which Hervey was declared Mayor before all the People And thus were they in full Possession of their Right 1 E. 1. That this People who had the Right to carry Elections and other Matters in Guild-hall or their Folkmote in the open Air were the Freemen appears by the Words of some of their Charters declaratory of their antient Right Many of which are granted to the Citizens which the Charter pass'd in Parliament 1 E. 3. explains
of Freemen of the City where it provides that they shall not be impleaded or troubled at the Exchequer or elsewhere by Bill except it be by those things which touch the King and his Heirs And how careful the City has been to keep Foreigners from partaking in the Privileges of Freemen appears from the Act of Common-Hall return'd under the Common Seal into Parliament 12 E. 2. and there confirmed whereby it is provided that if Foreigners be of any Mystery they shall not be admitted into the Liberty of the City without Sureties of six honest Men of the Mystery for their indempnifying the City and if they be of no Mystery they shall not be admitted without the Assent of the Commonalty of the City That the Freemen of the Mysteries had their several Gilds or Halls where the Society or Fraternity met not to mention more Authorities appears by a Charter of E. 3. reciting one of E. 1. which recites H. 2 d's granting to the Weavers of London their Gild to hold in London with all Liberties and Customs which they had in the time of Henry his Grandfather which was H. 1. and that no Man unless by them should within the City meddle with their Ministry unless he be in their Gild. As therefore the Gild was that Company or the Hall where the Men of that Mystery met the Common Guildhall was where all the Mysteries or Companies met 2. That whosoever are legally entituled to the Common Hall are entituled to all the Authority which the whole Body ever had especially in those things wherein the present Possessors exercise any Authority though they are not the whole Body of Men who used to assemble as long as they are a large Part of that Body may appear 1. In that the Folkmote in the open Air and that in Guildhall were antiently taken to be of the same Nature Accordingly I find a Writ to the Mayor Sheriffs and whole Commonalty of the City requiring them to swear Allegiance in their Hustings or at Paul's Cross 2. Guildhall has time out of mind been the Common-Hall of the Citizens and the Assemblies there have of all times before the first supposed Settlement of the Livery Common-Hall and since been accounted the Assembly of all the Commonalty as some Entries have it of all the City as others And if the whole City can regularly act together it is absurd to imagine that its Acts can be controled by a small part of the Great Body 3. The chief Power of making By-Laws for the Benefit of a City or Burrough is an Incident to the having a Gild or Common-Hall Accordingly in the Reign of H. 2. the Archbishop of York by the Counsel of his Barons granted to the Men of Beverlay in Yorkshire their Hanse that there they may treat of their Statutes for the Honour of God and St. John and the Canons and for the bettering the whole Town with the same kind of Liberty as they of York have in their Hanse H. 2. confirming this grants to the Men of Beverlay free Burgage according to the free Laws and Customs of the Burgesses of York and their Gild of Merchants So that Gild is the same with Hanse and Hanse as Bertius tells us in the old German Tongue signifies a League or Council According to this in a Case which I shall have another Occasion to mention the turning out of the Council of the Citizens was the turning out of the Gild and that was plainly a Disfranchisement 4 Such of the Commons as have from time to time assembled in the Common-Hall have with others been a true Common-Council of the City and acted as such since their Numbers have been restrained as well as before It must be observed that the City had or made a Common-Council before any such Restraint which is plainly intimated in Magna Charta 17 of K. John which mentioning a Common-Council of the Kingdom whether only for Aids belonging to Tenure of the Crown or such a Common-Council as the Cities Boroughs and Villages were at in Person or by Representation which D. Brady at last yields need not here be determined adds In like manner let it be concerning the City of London that is that the Cities Aids shall be taxed in its Common-Council Sutably to this 11 H. 3. a Tallage was assessed in the City by the Will of all the Barons or Citizens And thus the Commonalty of London in the time of Edw. 1. plead that the Citizens and their Heirs and Successors may for the Necessity or Profit of the City among themselves by their common Assent assess and raise Tallages without troubling the King So Ipswich not to name other Burroughs had its Common-Council of the Town c. And 25 H. 3. I find the Choice of Sheriffs in London by the Common Counsel and Assent of the honest Men of the City The Hustings I find to be the Court of these honest Men there they joined with the Mayor and Aldermen in the Grants of City-Land were Judges at Trials and Parties in the making By-Laws Prosecutions for Offences against the Rights of the City were in their Name And Quo Warranto's upon supposed Abuses of their Liberties were brought against them And therefore they not being represented by the Common-Council now using that Name those two great Ornaments of their Profession the late and present Chief Justices of the Common Pleas maintained with the Strength inseperable from their Arguments that no Act of the present Common-Council could be a Forfeiture of the City-Charter Indeed as the Clerks generally favoured the Prerogative often exercised by the Chair with the Advice of private Cabals I find a Mayor 47 H. 3. blamed for making the Aldermen and great Men useless while he did nothing without the Assent of the Commonalty That they acted as a Council and exercised a judicial Power at the Hustings after that time I might shew by numerous Instances but shall here content my self with one 3 E. 1. which was in the Judgment against Hervey above-mentioned who though he was the Darling of the People when he was chosen Chief Magistrate was soon overcome with the Infection of the Chair Some time after his Mayoralty the Mayor and Citizens having met in Guildhall for trying Common Pleas a Dispute arose before all the People between Hervey and the then Mayor and it seems Hervey's Party there was then the strongest for the Mayor found himself obliged to withdraw and make Complaint to the King The next Day the Mayor and Citizens returning to Guildhall to finish the Pleas depending before them a Roll was shewn and read before all the People containing several notorious Articles of Hervey's Presumptions one of which was that in the time of his Mayoralty he acted contrary to the Ordinances made by the Aldermen and discreet Men of the City Another was that he used
to which Instances it seems the Council appointed 7 R. 2. was very short-liv'd and the present Common-Council must date it self from after the 6 th H. 7. 4. But whosoever are entituled to the Council-Chamber that the Council there is a meer Creature of the Common-Hall and in the nature of a Committee entrusted with the dispatch of some things and the preparing others in Ease of the Common-Hall and that they cannot deprive the Common-Hall of any Right may appear beyond Contradiction if we consider 1. The only Foundation upon which the present Common-Council now stands 2. The nature of the Power of making By-Laws and some particular Evidences that that Power is subject to the Controll of the Common-Hall 1. Some have supposed the present Common-Council to have had its Establishment and Settlement 20 E. 3. the contrary of which has appeared But the true Foundation of such a sort of Establishment as it has was the Act of Common-Hall 7 R. 2. in the infamous Mayoralty of Brember when John of Northampton before mentioned was ruined for standing up for the Rights of the City in which he was afterwards justified by Act of Parliament Whereupon all the Ordinances made against him in the City were repealed by the then Common-Council The Act which gives some sort of Settlement to this Common-Council is as follows On Friday next before the Feast of the Purification of the blessed Virgin Mary in the 7 th Year of the Reign of King Richard II. in the Presence of the Mayor Aldermen and the immense Community of the honest and discreet Men of the said City in Guildhall for diverse Affairs touching the said City assembled the under-written Petitions by the honest Men of the City before by the Mayor Aldermen and Commonalty chosen and assign'd to ordain with mature Deliberation how Judgments in times past in the Common-Council of the said City given and made were made by Noise more than by Reason and sometimes by Men less sufficient deputed to the said Common-Council for the taking which away the said honest Men in the said Assembly with full Deliberation ordained the said underwritten Ordinances and caus'd them to be read in form following For as much as by Complaint of many honest Men of the Town made to the Mayor that now is how divers times in the Counseils used within the Hall and Chambers of the Guyhalde great Rumour and Peril had been perceived as well by great Assemblies as often by insufficient Persons deputed to the said Counseils seeing that oftentimes the Judgments of the said Counseils were more by Clamour than by Reason to the great Disturbance of the Peace and Quiet between the People for times pass'd and more likely to be in time to come if Remedy be not provided Whereupon the Mayor with the Aldermen and the good Commons chose certain Persons thereupon by Deliberation to advise them how such Rumour and Peril might be eschewed and remedied Which Persons being divers days assembled upon the Matter aforesaid have by their Advice ordain'd for remedying such Perils the Articles after-written If this please the Mayor and the other good Men of the Town to try for a time to such intent that if Good and Peace be found in such Counsels by the Ordinances after-written in the Name of God let them be confirmed and if the contrary as God forbid that this may in time be amended for the common Good of all the Town For the continuing a Common-Council of the Town by sufficient Persons as well of Substance as Sense let it be Ordained That every Year on the Day of St. Gregory when the Aldermen are established for the Year ensuing let them be firmly charged 15 Days after the said Day to go to assemble their Wards and by good Deliberation charge them to chuse Four of the most sufficient Persons that are in their Ward without regard to the State which they bore before to be of the Common-Council the Year ensuing And the Names of the said Four to present to the Mayor for the time being which Persons shall be accepted by the Mayor and commanded to take their Oath as is comprized in Writing heretofore made Provided always that the Mayor for the time being shall not receive throughout the Town of any Mystery for the Common-Council more than Eight Persons of a Mystery Altho it happen that more than Eight of one Mystery be presented and chosen c. Which Ordinance was approved and confirmed to endure for ever Here it is observable 1. That at the time of this Common-Hall there was no standing Common-Council other than the Common-Hall all others being discontinued and that before that time the Common-Council filled both the Hall and Chambers belonging to it And Matters were carried as the noise was communicated from one place to the other 2. That the Persons who are said to have made the Ordinance were only a Committee appointed and chosen by the Mayor Aldermen and Commons for that single Purpose and for that Time only 3. They suppos'd Themselves and all Common-Councils for the future according to the Provision then made to have no farther Power than to prepare Matters for the Common Hall and propound them for their Fiat 4. They do not propound the Constitution of that Common-Council as an absolute Form but that it may continue as long as it proves convenient and that it may be try'd for a time 5. Therefore the Establishment according to the very Words as well as the Nature of the thing is of no farther force than as a probationary Order to be observed only till the Common-Hall should think fit to set it aside 6. As they who propound this Ordinance in relation to that Body of which they were part were Inferiours and therefore Petitioners to the Body assembled in Common-Hall they set a good Example to all future Common-Councils But that the Common-Hall has not thought it self bound always since that Act of Common-Hall which ratified the Ordinance above to keep to that Form of Common-Council there appointed we may gather from the Entries which argue Representations at Councils after that by the Mysteries 'T is certain the Number of Common-Council-men appointed 7 R. 2. was never kept to no not the very next Year For then as has before appeared in the Case of John of Northampton the Representation was by the Mysteries and sent from the several Halls And in the Year after that there were in the Council-Chamber 13 of Cordwayner-Street that is as I should think Cordwayner's Mystery And it is certain Companies used antiently to keep together within the same Streets or Districts And some Wards to this very day retain the Names of the Companies or Guilds which liv'd there as the last above-named Candlewick-Ward and the Vintry And Cornhil-Ward as I take it was from the Gild settled there Nor can I omit the Observation that in some