was done seditiously or not if not then there is no sufficient Assignment of a cause of forfeiture if it were then 't is a crime for which the Offender is indictable and that I say is absolutely impossible for a Corporation to be guilty of And here I will throw in also that business of the Toll and I will for argument sake admit the taking of a wrongful Toll to be Robbery and then let the argument go on I have heard it said within the Bar occasionally that a Corporation is intrusted with the Government and that they may commit Treason and raise Sedition as Mr. Solicitor hath said I suppose it must be under their Great Seal But I confess I believe it is rather spoken to amuse than to satisfie but I really think it is no ill nor unjustifiable thing for me to say nor against the Government to affirm That 't is impossible a Corporation can commit Treason or that it is intrusted with the Government in any such kind But first my Lord I shall shew you what Opinion former times had and that because such an Opinion as this hath been broached of late days Lord Chief Justice Mr Recorder Will you be much longer Because I must sit here at Nisi prius this Afternoon and yet I would feign hear the Argument if it would not be too long Mr. Recorder No my Lord I have almost done and will cut short In 21 E. 4. fol. 13. b. 't is said by Pigott That a Mayor has two abilities the one to his own use to take and to grant and to do as another natural person does and then the Mayor as Mayor and Commonalty hath another Capacity to their common use and profit and that is but a name an Ens rationis a thing that cannot be seen and is no substance and for this name or Corporation 't is impossible they can do or suffer any wrong as to beat or be beaten as such a Body but the wrong is made to every member of the Body as to his own proper person and not as to the name of Corporation nor can the Corporation do a personal wrong to another nor can they commit Treason nor Felony as to the Corporation nor against any other person And if a Writ of Debt be brought against the Mayor and Commonalty or other such Body upon an Obligation and they plead it is not their Deed and it is found their Deed they shall not be imprisoned as another single person shall The same Law is if they are found Dissessors with force they shall not be imprisoned nor in a Writ of Ravishment of Ward they shall neither be imprisoned nor abjure the Realm for such a Body is hut a name to which such an act cannot be done So says Catesby in the same Book In a Writ brought against them no Capias shall issue because they are but as a dead person in Law and the Appearance upon a Capias cannot be otherwise than personal And so to this purpose says the Chief Iustice there If this Body will do any thing it must be done by Writing And all along it is the Tenor of the whole Case that a Corporation cannot commit Treason or any other Crime But the reason of the thing is above any Authority Suppose that they under their Common Seal should commit Treason and you bring an Indictment of Treason against the Mayor Commonalty and Citizens of the City of London what Iudgment shall be given against them in their corporate capacity What it shall be that Suspendatur per collum Corpus politicum And then what execution shall be done upon that Sentence What must they hang up the Common Seal Nothing else you can do can affect them but in their private capacity there they may be punished as single persons A Penal Statute says That he or she that offends against the Law shall forfeit so much or incur such a Penalty Is a Corporation Male or Female that it should come under such a provision but the real reason of the Law is this it is a civil Being it is Ens civile it is Corpus politicum it hath civil qualities but it hath no moral qualities and all Offences consist in the immorality of them and there must be malice to make that immorality No words or Acts are Treason or Felony unless there be a traiterous mind or a felonious mind and therefore a mad-man cannot be guilty of Treason or Felony Serjeant _____ brought an Action for these words That he had spoken Treason it was moved in Arrest of Iudgment that this cannot be Actionable for he might speak Treason in putting a Case ay that were well said they if it could be understood so but we must intend it that he spoke Treason as his own words ex corde suo which makes it Treason for Treason consists in the immorality of the mind Another reason is what Pigot said as I said before That a Corporation is but a Name an Ens rationis a thing that cannot sée or be séen and indéed is no substance nor can do or suffer wrong nor any thing where a corporal appearance is requisite What my Lord Dyer says in Moor 68. that he never saw is I believe true in general that no Man ever did sée that a Corporation could be bound in a Recognizance or Statute Merchant and why because it must be acknowledged in person And so in this case The Guilt follows the Person but cannot a méer capacity In all Crimes the Offender must appear in person and plead in person and suffer in person but you can never bring the Mayor Commonalty and Citizens into Goal to appear and plead to an Indictment to receive a Iudgment or suffer Execution Can a Body Politique that is invisible appear in person Obj. But then there is this great Objection By this means they say if there be no punishing of them there is no Government and they may commit Treason under the great Seal they may raise Armies and instigate a Rebellion and all with impunity Sol. My Lord I say no and I give two Answers to it that are not to be replyed to and the first is this 1. All these Persons that are met together though they are met corporaliter in their corporate capacity â—â—r the Acts of the Corporation at that time yet when they go out of their corporate business and commit Treason or Felony the Crime does not egredi personas every one of them is a Traitor or a Felon and notwithstanding they appeared there under the pretence of a Corporation yet they are all liable in their private several Capacities every one of them must be indicted personally and suffer personally For when they go about to do such a thing 't is out of the business of the Corporation and they must answer for their own particular Offences But 2. I have another Answer to give to it This Objection is to be retorted on the other side That if a
these Counsels or the King and his Parliament are interrupted this is not done To make such an high Crime of this I do not understand I would not be thought to speak any thing to justifie that which is really a Crime but this is that I say 'T is not in Law unlawful for us to petition the King or address to him But my Lord to take off the edge of this business I shall beg leave to read to your Lordship a Spéech of the Kings made the 6th of March following and therein there are these Words The further Prosecution of the Plot. My Lord let any man read and spell and see how in substance the Words in our Petition differ from the Words of the King making those Laws necessary for the security of himself and the Kingdom and this spoken the 6th of March when this very Petition now complained of was presented in January or February before and there was no Parliament between No man will say that there were Laws sufficient for the security of the King and Kingdom when the King himself speaks of the necessity of making such ones So then those Laws that were preparing received an interruption The Lords were not tryed is not that an interruption of Iustice since they could be tryed no where else as must be granted and the King recommends it to them as not done but necessary to be done So the King said before and so 't is implyed here There is no such thing said in the Petition That the King did interrupt Justice and the proceedings of the Parliament 'T is an Inference and a Consequence made by Wit and Art not that the King did interrupt or intend to interrupt Iustice but it says by the Prorogation of the Parliament the publick Justice received an Interruption My Lord Suppose at that time there had béen a Pestilence here and the King had been as much resolved to meet his two Houses as they him but by reason of the Pestilence he were necessitated and forced to make a Prorogation Then there comes such a Petition from the City and says That by reason of this Prorogation those Bills that were depending did not pass and the publick Iustice received an Interruption What is the Offence of this 'T is all true If there be Bills depending and Impeachments that can no other where be tryed they do receive interruption by a Prorogation Can any man say this is false The charge in the Replication is That we did falsly and maliciously say what that which is true and that which the King had said before and that which the Lords and Commons said after him That till those things were done they were not safe and those things as yet were not done My Lord There is this further in it the Petition is set forth in haec verba and therefore I may take any thing out of it to explain it and restore it to it self for this indeed is a very restrained construction of the Petition It says when this interruption by the Prorogation was receiv'd That the King for urgent causes and very good reasons did Prorogue the Parliament It is his Prerogative to do so and God forbid but he should have it I think without doubt we should be more at a loss for want of that Prerogative than we can by the use of it 't is mine and I believe every good mans Opinion that that Prerogative is very necessary and profitable for us all but it is the consequence of it that this interruption of Iustice is received nay we are so far from saying that the King did interrupt Iustice or intending it that we say we do hope the Kings gracious intentions were only to make way for the better concurrence of his Majesty and his Parliament The King does for great causes and best known to himself who has the Prerogative Prorogue the Parliament whereby as a meer consequence not as the Kings intention the publick Justice is interrupted Nay this we affirm was with a good intention in the King that he might the better be inabled to concur with his Parliament as is set forth in the Petition Can there be any thing more properly said 'T is the greatest justification of the Prorogation that can be The King has prorogued the Parliament What to do Why Iustice hath in view received an Interruption but not in the intention of the King We know what the meaning of it is and so we set forth in our very Petition it is to gain time that he may the better concur with his Parliament 'T is a great commendation of the Kings purpose instead of charging him with Injustice that he did resolve to concur with his Parliament for such ends and accordingly did Prorogue the Parliament Now the Attorney General hath put in that it was ea Intentione there is the sting of the business to put in those words to make that which we may lawfully speak of it self to be an Offence but truly that signifies just nothing It can never hurt a thing that is true it has great Authority in it if it be applyed to a thing that is unlawful but if in substance it be true and the thing it self justifiable those Words make nothing in the Case and I think I néed not argue that point but refer my self to the great Case that was in Westminster-Hall and that is the Reversal of the Iudgment given in this Court against my Lord Hollis which was a Reversal in Parliament and is Printed and the last Impression of Mr. Iustice Coke's Reports by order of Parliament and there they explode all the notion of ea intentione and this business A man speaks words that he might speak in Parliament though I know not whether he might or no but the great thing is If words that in themselves are tollerable to be spoken be spoken you shall not come and say they were spoken with an ill intention though as I shall shew by and by this hath a kind of Fatality in it and that is this That it is done with an ill mind by a Corporation that hath no mind at all Mr. Attorney General Just now you said it had a mind and Reason was its mind Mr. Recorder I said as my Lord Hobart says that a By-law to it is a mind as reason is to a man but it hath no moral mind My Lord then I say the Citizens of London were indéed at that time under great consternation by reason of the Conspiracies that had béen discovered in Parliament and in the Courts of Iustice and it had béen declared by the late Lord Chancellor at the Tryal of the Lord Stafford which your Lordship may very well remember That London was burnt by the Papists and therefore 't was no wonder that they were desirous that themselves and the Kingdom should be put into great security against those Enemies This my Lord I confess is a tender point and I would not speak a word in 't without
Moor it was the Case of the Bell-man of Litchfield A Prescription is made that the Corporation of Litchfield hath a Market and they ought to repair the way to it and to appoint a Bellman that should sweep the Market-place and that for this the said Bellman time out of mind had taken of those that brought Corn to the said Market and opened their Sacks to sell a pint of Corn if but a Bushel or under if more a Quart So that if it were opened and not sold yet he was to have that Duty and that Prescription was adjudged to them by all the Iudges and yet it does not appear there whether the repairing that way cost them 5 s. or 5000 l. and yet by intendment they would not account it unreasonable though it might have been urged it was very unequal if they could take a Pint for that which was under a Bushel perhaps they would take by that means half of what the party bought but if there were fifteen Bushels they had but a Quart and this was objected as to the inequality of it and yet they all passed over that by a reasonable intendment and would not deny the Prescription to be good And the Case of Cranage in Dyer and the Case of 21 H. 7. 16. are admitted to be good Law where the Town of Gloucester prescribed for a Toll of Boats passing by the River near the Town Now my Lord for ours there was very great reason to induce it the great alterations that were made in London by the Fire and it was not the first time that London was burnt And if there should be War and so great Alterations and Confusions there were great cause that the City that lays out great Sums and must be at such a publick Charge should not be losers by it And we do set forth more than they do in the Case of Litchfield that we provided the Market-places at our own charge and if they will use them they must expect to pay some compensation for it that we do kéep Officers and pay them for cleansing and kéeping Order in the Markets And above all that we provide Standings and Stalls and such Accomodations and that I am sure is a Provision no Lord of a Market is bound to make unless he will and therefore the Market-people that are accomodated by it have great reason to pay for it and we pay all the Taxes for the Market-places for the ground is ours and that is not alledged in the Pleading indéed but it must be implied because we pay the Taxes and they that have the Standings are not lyable to pay the Taxes And so is the Iudgment in Rolls 2 p. 238. and the 2d Abr. 289. And in the Case of Cusack Iustice Dodderidge says That the redéeming of one Fair from the Abbot of Westminster cost the City of London 8000 l. for he had a Fair at Westminster and a Market for 40 days and that during that time no Sale should be in London or the places adjacent and a great Rate it was if it were so The measure of a Toll is according to my Lord Coke 2 Inst 58. when the thing demanded for Wares or Merchandizes does so burthen the Commodity that the Merchant cannot have a convenient Gain by Trading therewith and thereby Trave is lost or hindred then 't is an evil Toll But here indeed the Market-people are better accommodated than ever they were and Trade is so far from being discouraged as that it is increased as is implyed in the Replication for 't is said we receive 5000 l. a year which if it were so unequal would not certainly be paid nor could be if there were not great Trade there So that the increase of Trade is the thing complained of in this Quo Warranto And the truth of it is I have examined and looked into the Fact of these things and there is nothing in this By-law but what was really anciently paid except only in one Instance whether it were 6 d. or no that was paid when a Cart was drawn by two Horses which now is but 4 d. and if we have increased the Toll which I doubt whether it be so or no 't is only in a very trifle Now my Lord this Case I think is a stronger Case than that in 5 Rep. the Chamberlain of London's Case there is no consideration of Stalls or cleansing the place but only they had an Officer to search and view and that was a new appointment of their own they could not prescribe for it but it was thought a penny was a reasonable recompence and the Subject had a benefit by it and if he would bring his Cloth to London to be sold he should come thither to have it viewed and give a recompence for it Now London is all Market indeed every Shop is a Market and it hath been well said of the Iudges several times in Westminster-Hall that London is the Market of all England and there is never an Acre in England but is the better for that As to the Imposition upon Coals that is but an inducement and an inducement is never to be relyed upon 't is not to be stood upon And Mr. Solicitor did very honourably decline it and did not make any thing of it nor trouble the Case with it When the City did make this Act of Common Council they did consult with their Counsel for matter of Law and with their Officers and Fellow-Citizens for matter of Fact and did adjust these rates and enacted them to be paid they being reasonable ones and according to the ancient Vsage but if they were mistaken it will be no cause for you to give Iudgment against them for many other reasons As first you cannot judge this to be unreasonable I have not heard one word said that this is an unreasonable oppressive Toll Here is money levyed what then If it be a reasonable sum 't is not so great it does not deserve the name of Oppression I say 't is not so great an Oppression if they should have been mistaken in the form of instituting the levying of it if they might have done it under their Common Seal and now they have done it without that by Act of Common Council Nay it does not deserve that you should judge it unreasonable you cannot do it here for the considerations are meritorious and equivalent to it the great charge they were at in Building and they still daily are at in cleansing and repairing and providing Stalls But however the Case is not so disclosed here that you can judicially determine this to be an unreasonable Toll According to the Rule in Cokes Magna Charta 222. the Toll of a Market need not be certain only it must be reasonable And what shall be deemed reasonable the Iudges must determine if it come judicially before them So shall reasonable Customs and reasonable Fines and reasonable Services and reasonable Time to remove Goods and the like they must
Corporation authorize the levying of War under their Common Seal shall be affected by it in their politick Capacity they are lyable to the Law in that Capacity only and must suffer in that Capacity only And the consequence of that is they are discharged in their private Capacity and this is a Law of Indempnity and Protection for all Crimes for a man cannot be lyable two ways for Treason or Felony or any other Crimes if he be not lyable in his private he is in his publick Capacity if not in his publick he is in his private And what is the consequence of that This is a Dispensation for a Corporation met together in a Body to do any illegal thing or to commit any enormous Crime for the Kings Counsel says this We are responsible for it in our politick Capacity and what Execution can then be done to punish that Corporation with such a punishment as the Law inflicts that is Imprisonment or death any more than upon an Action of Debt brought against them upon a Bond and Non est factum pleaded and found for the Plaintiff they can be imprisoned and the like So that this shall protect and shelter them in the commission of any Capital Offence for if they are to suffer for it as a Corporation you must take Iudgment against them as the Law gives it and how will that be done against an invisible Body What will be the Execution against the Corpus Politicum that can neither see nor be seen I think this mighty plain and I must confess I wonder how it could ever enter into the mind of any man that a Corporation could commit a Corporate Crime I have as it became me in regard of the duty of my place and before that for my own Learning read Stamford's Pleas of the Crown my Lord Cokes 4th Institutes Poulton de Pace Regni my Lord Hales's Pleas of the Crown Dalton's Justice of the Peace and other Books of that Subject but I defie any man to shew me in any of those Treatises concerning Criminal Matters any resolution that ever a Corporation that could be concerned that they should be brought before a Iustice of Peace or proceeded against upon any Law for Treason or Felony or be hanged in their politick Capacity My Lord I shall conclude all my discourse of this kind and I have almost done because I perceive I encroach upon your patience with an observation I have made upon the 19 H. 7. c. And and 't is the Statute that makes provision against Corporations that made By-laws against the Prerogative That Statute says that some Corporations did so now an higher Offence than that sure cannot well be described and there that Law says that those that do so that make such By-laws against the Prerogative shall forfeit for so doing for every Offence Forty pound unless they are confirmed by the Chancellor and Treasurer and Chief Iustices or any thrée of them Now to what purpose was this Statute made if the making of an ill By-law and worse cannot be than a By-law against the Kings Prerogative should be a forfeiture of the being of a Corporation How vainly did the King and Parliament employ themselves to make a Statute that a Corporation should forfeit 40 l. for such an Offence No Man will say they had rather take that Penalty than another when they might have a greater if a greater could be had by Law If they might have had a Quo Warranto and thereby destroyed the Corporation surely they would not have stood for the Penalty of 40 l. for they might easily have got more mony No they might have said We will never pass it by unless you will give us 4000 l. or a far greater Sum nor shall you have your Corporation again without you give us a considerable recompense for it And when the process and the procéedings were so expeditious and easie to come at it in a Quo Warranto as it was easie in those days why should they put the King to the delays in an Action of Debt for so small a Penalty as 40 l. So that I take it to be a direct Iudgment of the Parliament in that Case that no Corporation should or could be forfeited for the making of any By-Law that was irregular though it were even against the Kings Prerogative But to hasten to a conclusion I have all this while my Lord supposed that the Mayor Commonalty and Citizens of London have done this but it is not so this is not the Act of the Mayor Commonalty and Citizens 't is not the two hundreth part of the Corporation 't is but the Act of the Common Council and we have distinguished our selves by pleading that it does not consist of above 250 when the City contains above 50000. I must confess the Council is not taken notice of much in Law as is séen in Warren's Case 2 Crook 540. 2 Rolls 112. Warren being one of the Common Council of Coventry and displaced sued out a Writ of Restitution and upon that Writ it was returned that by custom the City might place and displace ad libitum they there held that the custom was good But it is not so of a Fréeman or Alderman because he hath a Fréehold but a Common Council is a thing collateral to a Corporation and the Office of a Common Council is nothing but only to give assistance and advice which they may refuse at their pleasure In Estwick's Case in Style 32. 2 Rolls 456. it is said That 't is a place méerly by custom and that the Common Council is properly but only a Court of Advice and my Lord you shall never intend more than that they were a Court of advice All the rise of their Power is but by custom and that custom is pleaded to give advice for the benefit of the City and make By-laws for the good of the Corporation and that is confessed by the Demurrer and you shall intend no more than what is opened in the pleading And then 't is evident this was done by a very small part of the Citizens of London and that does no way affect the whole Corporation sure In James Baggs Case 1 Rolls fol 226. it is said That if a Patent be procured by some persons of a Corporation and the greater part do not assent to it that shall not bind a Corporation And if so be a Charter sealed and sent by the King because not accepted in pais by the greater party bind not Shall an Act done by a few and an Act done that tends to a Forfeiture bind the whole in point of their being There is no ground to say that the Common Council represents the City no more than a Council does his Client or an Attorney his Master only as far as is for the benefit of the City they are chosen and entrusted to make By-laws if they offend they are but Ministers and Officers and so they are within the Statute of
Defendant or Plantiff in any Court My Lord Magna Charta and all the other Acts that have gone in confirmation of it shew the great care of the Government in all Ages to preserve the City of London and I look upon them as so many Declarations of the immortality of it and all other Corporations I shall use a strange Argument perhaps at first hearing but 't is to me a great Evidence for us that Magna Charta does not confirm our being but our Liberties and Priviledges it says That the City of London shall have all its Liberties it confirms its Léets its Markets and all those things that is it confirms all that it has it has not saved indéed if a Corporation indéed be built upon a Corporation but that particular Liberty may be destroyed as that of Bridewel and the like but it does more than confirm its being for it does implicitly declare That that was impossible to be forfeited They confirm what néeded confirmation but for their being there was no néed of that it only confirmed the supervenient Liberties with out which it might be a Corporation but as to its being it medled not with that And if it were not so it were an unreasonable thing that we should have so many Acts of Parliament that give such particular Powers to the Mayor and Commonalty of London and scarce any Act of Parliament that relates to the Publick but London is mentioned and taken care of in it Are not all these Declarations that London should stand for ever Would not any one have said else Pray what do you put such confidence in London for There is not such a fickle thing upon the Earth as the being of the Corporation of London If they lay but 6 d. upon a Ioynt of Meat they are gone and there is not a month in the year but they forfeit their being The Act for Administration hath a Proviso that says it shall not extend to London Why does any Man think that this Law was not intended to be as perpetual for London as for other parts of the Kingdom They did not question but London would be a Corporation as long as England was England It would be a strange thing in the Example of it that the World should be taught by one instance that a Corporation can be ruined when so many People put their Trusts in those Corporations and so many vast Inheritances depend upon them And I think the King and the Government or those you call so are more concerned to preserve London than all the Persons that are in it I would not speak it in this place by way of Argument for my Client but I think I could maintain it in all places only I hope and believe I shall have no néed for it My Lord All Innovations as this must certainly be a very great one are dangerous This Frame of Government hath lasted and béen preserved for many hundreds of years and I hope will do so as long as the World lasts My Lord I néed your Patience but I have just done Here is a Charge that is very little indéed there is nothing in the matter of it but the great consequences are fitter to be meditated on than spoken of And therefore for these Reasons I do pray That these Liberties may be adjudged to us and we may be dismissed out of this Court Termino Paschae next ensuing Mr. Justice Dolben being discharged the beginning of the Term and Sir Francis Withens in his place Sir Robert Sawyer Attorney General for the KING I. THIS Information is not brought for the taking away or destroying the Corporation for tho it be true that there be in it the words Et penitus excludatur yet that is but form the intention is only to prune and take away the Excesses and Abuses and therefore no danger of falling into such inconveniences as suggested on the other side In Rolls Abr. Tit. Prerog 204. It appears by Petitions in Parliament that London and Norwich and other Cities have had their Liberties seized into the Kings hands for some abuses and miscarriages in the Cities and sometimes restitution granted other times refused and answered that they were in good condition These Petitions were 13. 18. E. 1. The Liberties of the City are not intended to be destroyed but preserved and maintained and this Suit designed to that end II. That this Information brought against the Corporation by the name of Mayor and Commonalty and Citizens is good and well brought What is alledged against it out of my Lord Chief Iustice Hales his Book is not any opinion but a Nota upon the Case of Cusack And in the Case of Cusack the Iudgment is against the particular persons named alios Cives although not named But further It is not necessarily intended that though they are sued by the name of Mayor and Commonalty and Citizens that they are sued as a Corporation or Body Politique For by those words the Citizens and Inhabitants are comprehended and expressed and an Information lies well against Inhabitants or Citizens without naming any persons by particular name and there are divers Presidents of Quo Warranto's so brought Mich. 27. Eliz. C. Entries 537. Quo Warranto contra Inhabitantes Burgi de Denbeigh Quo Warranto they claim a Court of Record and other Priviledges Mich. 15. Car. I. Quo Warranto against the Corporation of Chard By 2 Car. I. the like name of the Corporation against Canterbury But 't is true that in these Cases are no procéedings to Iudgment But Trin. 6. Jac. Quo Warranto against the Corporation of New Malton and thereupon Iudgment is given against the Corporation III. Next that the Replication alledging Forfeiture is not repugnant to the Information for though the Forfeiture should determine the Franchise yet it remains not vested in the King until the Forfeiture appears upon Record by Office or Inquisition finding it or by Iudgment upon Information and therefore this Information well brought against the Corporation IV. That a Corporation or Body Politick may be forfeited is beyond all doubt A Corporation is a visible Body of Men and every of the Members thereof hath a Fréehold in it Sir James Baggs Case Co. Rep. 11. Co. Rep. 10. 14. That all their Acts are performed by natural Persons That all Corporations derive their Commencement from the Kings Grants 49 E. 3. 3. Br. Corporation 34. And are erected for better Government either of persons inhabiting within such a Township or place or that are of such a Trade or Mystery 1 Inst And the Books cited to prove that it is a Capacity do not prove it not to be a Franchise or Liberty But on the contrary all Books that speak of it agree it to be a Franchise Priviledge and Liberty which the Persons incorporate have by the name of their Corporation If then a Franchise or Liberty then nothing more common and certain That Franchises or Liberties abused are thereby forfeited 1 Inst
or Scandal the King or his Government And for these great Crimes committed by the City I pray Iudgement against them Mr. Pollexfen upon another day for the City his Argument IN this Case when I consider the greatness and consequence of it That it affects the King the Parliament the Laws the very Government under which we have lived this great City of London and all other Corporations and People of England and their Posterities for ever I cannot but be troubled that I should be the Man to whose Lot it should fall to argue it but that which comforts me is that your Lordship and the Court upon whom the Iudgment of this great Case depends will help out my Defects and according to what is required in the great Places you bear take care and provide that by your Iudgment the ancient Government and Laws of this Kingdom receive no Damage or Alteration The King's Counsel have on their side only some general words out of old Records of Forfeitures and Seisures of Liberties which are of uncertain and doubtfull sense but there is not on their side produced any one Precedent Iudgment or Opinion to maintain the point in question viz. That a Corporation or Body Politick ever was determined or dissolved or taken away for a Forfeiture No not in the maddest of Times in the Times of Edward the 2d and Richard the 2d when the Tumults and Disorders were so great that they not only seized and took away Liberties and Franchises but the Lives of Princes Nobles Iudges Lawyers and all that stood in their way In those times though they have hunted and searched with all diligence not one instance of a Corporation taken away or dissolved by a Forfeiture is cited So that from hence I hope I may safely conclude that I argue in this case for the old and known Laws as they have been ever practised through all Ages and against that which never hath been practized or known which is a great Encouragement to me The Pleadings being very long I shall only repeat so much of them as I use when I come in order to speak of them I. The first thing proper to be spoken to is the Information it self and therein I make this Question Whether as to that part thereof that chargeth the Corporation with usurping upon themselves the being of a Corporation whether that be properly brought against the Body Politick as this is or ought to have been brought against the particular Persons I do agree that as to the other things mentioned in the Information the having Sheriffs Iustices c. The Information is properly brought against the Corporation And I do also agree that it may be good as to those things though bad and insufficient as to the charging the Corporation with Vsurpation of their Being without lawfull Warrant or Authority And that I may come singly to this Question I do put out all the other Franchises in the Information and take only what concerns this point and then the Information as to this point chargeth That the Mayor Commonalty and Citizens of London by the space of a Month last past before the Information did use and claim to have and use without any Warrant or Regal Concession within the City of London the Liberty and Franchise following viz. to be a Body Politick Re Facto Nomine by name of Mayor and Commonalty and Citizens and by that Name to plead and be impleaded which Liberty Privilege and Franchise the same Mayor Commonalty and Citizens upon the King by the time aforesaid have and yet do usurp This is the Substance of the Information as to this point and Whether this Information thus brought as to this matter be sufficient in the Law upon which a Judgment can be given or ought to have been brought against particular Persons is the Question I conceive it ought to have been brought against particular Persons and is insufficient as it is and that no Iudgment can be given upon it supposing the Defendants had demurred or pleaded nothing to it To make out the Insufficiencies I desire to consider what it imports 1. The very bringing the Writ and exhibiting the Information against the Corporation imports and admits the Mayor Commonalty and Citizens to be a Body Politick capable to be sued and impleaded respondere responderi otherwise there is no Defendant no Person in Court against whom the Suit is brought It is not enough that the Person sued be a Person by supposition or a pretended Person but none in reality If a Writ or Information be brought against a Baron and Feme this must admit that they are Baron and Feme really and truly and if there be any thing after in the Writ or Information that shews that they are not truly and really Baron and Feme but that they do wrongfully and unduly take upon them to be Baron and Feme when in truth they are not this would be contrariant and repugnant and abate the Writ or Information The like is supposed by the bringing the Writ or Information against the Body Politick it supposeth and affirmeth them really and truly to be such and the subsequent Affirmation that they usurped so to be and are not so really is contrariant and repugnant 2. When in the Information it is alleadged that the ayor Commonalty and Citizens the Liberty Privilege and Franchise of being a Body Politick Re Facto Nomine and to be sued and impleaded upon the King have and yet do usurp To usurp or doe any Act of Necessity imports and admits a precedent existence of the Persons that doth usurp or do the Act to the Act done Particular Persons may usurp and take upon themselves that which they have no right unto The Persons that doe the Act did before exist and had a Being And when a Corporation is said to usurp it of necessity must be supposed to have a precedent Being The sense of Vsurpation in a Quo Warranto is the Subject's taking upon him Franchises without Warrant My Lord Coke saith Inst 1.277 b. That Usurpation in the Common Law hath two significations 1. The one when a Stranger presents to a Benefice and his Clerk instituted and inducted he gains the Advowson by Usurpation 2. The other when any Subject without lawfull Warrant doth use any Royal Franchises he is said then to usurp upon the King So that an Vsurpation supposeth of necessity a Subject or a Person precedently in esso that useth the Franchise or that doth usurp That which is not in esse that hath no existence cannot use any Franchise cannot usurp The very alleadging that they usurp doth admit of necessity an Existence precedent in the Corporation such as can usurp or Act and therefore this Information is inconsistent with it self 3. But another reason to prove that it ought to be against particular Persons and cannot be against the Body Politick is drawn from the Iudgment that must be given upon this Information if
that this is such I hope most plainly to shew in the distinguishing the different nature of Franchises which I shall doe presently only taking in my way their next Reason that they offer and answer both together which is Obj. 3. That a Corporation is a Franchise that it commenceth by Grant and therefore Forfeitable and Surrenderable as other Franchises are and if they be Surrenderable then also are they Forfeitable Resp I do agrée that Franchise is a large word it is of the like sense of Liberty or Privilege Therefore in Quo Warranto Franchises Liberties and Priviledges séem to be of the same sense To be a Subject born and to have Liberty and Priviledge of a Fréeman and no Villian is a great Franchise and therefore in Law when a Villain is made Free we say he is Infranchised he hath the Franchise Liberty and Priviledge of being a Fréeman An Alien he is made Denizen by Letters Patents a Person attainted is Pardoned by Letters Patents and a restitution in blood granted and made a new Creature By these Grants the Alien and the Person restored have such Franchises Liberties and Privileges granted them that though before they were not capable to take hold or enjoy or Act as natural born Subjects or Freemen yet hereby they have such Capacity granted Next I think it will be granted that this Franchise Liberty Privilege or Capacity is not surrenderable or forfeitable except only in Cases of Treason or Felony where they forfeit their Lives by these instances this is proved That it is no true position that whatsoever is grantable is surrenderable and if surrenderable forfeitable which is one of the Reasons given by the King's Counsel why a Corporation is forfeitable for these Franchises or Privileges are by Grant and yet not surrenderable or forfeitable and this also shews that Arguments general and from general Rules are most fallible and fit only to take weak apprehensions But next consider what it is to be a Body Politick or Corporation A Body Politick is framed and constituted in similitude or likeness of a natural body with Capacity to take hold and enjoy and act as a natural body and can no more surrender or forfeit his being while the members of that Body are subsisting than a natural body can while alive It is only a Capacity framed and created in a multitude to be and act as one person they are incorporate and made one Body Politick that have Power and Capacity or Franchise of acting taking holding and granting this is their Franchise admit it so but differs from others Franchises and Liberties of all other Natures are Estates and Inheritances grantable and conveyable from one to another as other Estates are this is no such thing grantable or transferrable other Franchises and Liberties affect the King's Subjects and are Privileges claimed wherein the King and the rest of his Subjects not claiming the Franchise are more concerned than in this of being a Body Politick for other Franchises either convey some Profit from the King as Felons Goods Waifs Estrays Wrecks or the like Or affect his Subjects as Courts Gaols Returns of Writs Fairs Markets and the like But this of being a Body Politick is only a Capacity to be a Person capable of having and holding what may be granted unto it and of granting and acting as a natural Body and affects the King or other his Subjects no otherwise than giving Capacity to take hold and enjoy what they can get as other Persons capacitated may Other Franchises Liberties and Privileges are distinct and separate Estates and if any one be forfeit as it may for misuser the rest are not except incidents and appurtenances But if the being of a Corporation be forfeited All their Estates Lands Goods and Chattels are gone at once So that though you admit and call this a Liberty or Franchise 't is nothing like in its nature to those things generally known and understood by the name of Franchises or Liberties and general Sayings are generally to be understood of such things as are generally so taken and called If then there be such great and apparent difference betwixt this of the being a Body Politick supposing it being in a general and large sense a Franchise Liberty or Privilege and other particular Franchises admitting that which is said that the Misuser of a Franchise is a Forfeiture holds generally true yet it is not in every particular true where there is such apparent difference and reason to distinguish as betwixt the being of a Corporation or a Body Politick which is only a Capacity and other particular Franchises which are Estates there is also apparent reason to distinguish betwixt one and the other they being so much differing one from the other in nature and reality But next That this was never taken in Law to be such a Franchise Liberty or Privilege as was comprehended under the general meaning of Franchise or Liberty By Sta. of Glost ' Writs were to go to all Sheriffs forty days before the Eire of general Summons 6 E. 1. Inst 2. 278. for all to come in at the Eire to claim their Privileges and the second day of the sitting of the Iustices in Eire a Proclamation made to the same purpose In the Comment upon that Statute it appears Inst 2. 281. 282. that if the party did not appear his Franchises were seised into the King's hands Nomine districtionis and if not replevied sitting the Eire they were forfeit or lost for ever If the party did appear and did not claim then they were lost for ever In all the Procéedings in Eire there is no such thing can be found That the Corporations did come in and make Claims to their being Corporations or Bodies Politick or that ever any were seised if it be seisable into the King's hands or was forfeit for not Claiming Fulher and Heyward's C. Palm 491. It appears that the Dean and Chapter there Surrendred their Charter and all their Mannor Lands Possessions Privileges Franchises and Hereditaments Spiritual and Temporal and this with intent to Surrender that there might be a new Corporation erected as is recited in the Letters Patents of new Erection In this Case Rep. 3. 75. And. 2. 120. Jones 168. resolved that by this Surrender the old Corporation was not surrendered This Iudgment doth conclude and must be given either because by the word Franchise and the other general words the Franchise of being a Corporation was not comprehended or if the word 's sufficient and did comprise it that it could not by Law be Surrendered This I think sufficiently shews that Corporations were in Law as Persons natural are and in like manner claimed and that the being a Body Politick or Corporation was not to be claimed comprised or meant within the general words Franchises no more than the Liberty or Franchise of Denizen or Manumission Next No instance can be given of any seisure of any Corporation or Body Politick for
said that that Surrender was not thought good till confirm'd by Act of Parliament And as for the other Case Dyer 282. of the Surrender of the Dean and Chapter of St. Patrick The Opinion of the Iudges there given is by all the Iudges 3 Car. 1. in the Case of Heyward and Fulcher in Jones 168. denied to be Law and said to be a private resolution So that these two Cases in Dyer having béen by those later Authorities denied remain no Authorities And as for the other Authority viz. The opinion of Iustice Jones 168. that a Corporation may be dissolv'd by a proper Act viz. by Resignation That is true taken in the sense he speaks it it is spoken of a Dean and Chapter resigning to the Ordinary viz. The Dean resigning his place of Dean and the Prebendaries of the Chapter resigning their Prebends to the Ordinary whereby their Churches and Prebends became void and to be supplied by the respective Patron collating or presenting as in Cases of Resignation by any Parson or Vicar to his Ordinary But this is nothing of a Surrender of the Body Politick to the King and thereby dissolving the Corporation and destroying all supply by new Presentments or Collations And this appears by the very words of Iustice Jones there for when he saith they may be dissolv'd by a proper Act viz. by Resignation the next words are or by death of the whole Corporation and the King being Patron 't is in his Election whether he will collate de novo or not and till he collates the Corporation is in suspense but if the Bishop be Patron then the Bishop upon the Resignation hath power to collate and thereby to continue the Corporation So that it is very plain that the Resignation he speaks of is not meant for any Surrender to the King or any thing that determines the Corporation except the Patron will not collate and thereby suffer the Corporation to cease But of the contrary that a Corporation cannot be dissolv'd by any Surrender The Suppression and Dissolution of the Abbies Priories and Monasteries by H. 8. was no Dissolution of their Bodies Politick Br. Extinguishment 75. Br. Corporation 78. Davies Rep. 1. Moore 's Rep. 282. Though their Houses and all their Possessions were gone and the Persons either discharged of their Orders or sent into other Houses yet resolved that the Corporations remain'd And it can scarce be imagin'd but in some of those Cases it would have been practised or at least something said about surrendring their Body Politick if it had been then thought surrenderable But the Cases of the Dean and Chapter of Norwich Rep. 3. 41 Eliz. before cited And the Case of Heyward and Fulcher before mention'd in 3 Car. 1. Jones 168. Palm Rep. 500 501. Anders 2. 120. Have been cited as Iudgments against Surrenders by all the Iudges of the King 's Bench. The Case was That the Dean and Chapter of Norwich 3 Junii 1 E. 6. surrendred to the King their Cathedral Church all their Mannors Lands Tenements Hereditaments Franchises and Liberties Spiritual and Temporal by whatsoever names they are known or which they have or ought to have in the Right of their Church And by the Case 41 Eliz. Co. Rep. 3. 74. And the Opinion of all the Iudges of the King 's Bench. 3 Car. 1. adjudged that this was no Surrender of the Corporation Obj. That the words of the Surrender do not shew any intent to surrender the Corporation but only the Possessions Resp The being of a Corporation is a Franchise or Liberty And there is an express Surrender of all Franchises and Liberties Spiritual and Temporal by what name soever known which they have in the right of their Church And this was a Spiritual Franchise which they had in right of their Church Next This Surrender was made with intent to dissolve the Corporation and to have a new one erected this appears by the new Charter of Erection made in November following which recites the Surrender made to that intent It is not any where in the many Arguments of that Case alleadged that there wanted words in the Surrender to doe it which would have been if that had been the Ground of their Iudgment In the Case cited out of Dyer 282. there the words of the Surrender were that they surrendered their Church Houses Lands and Possessions which are not half so large and ample words as in this Surrender are contain'd and the other side cite that as an Authority to prove a Corporation surrender'd and admit the words there sufficient and deny them to be sufficient here though much more large express and general The arguing there in Palmer 501. that it is against the Nature and Constitution of Corporations that by the words put in their Charters by their very Constitution are to have perpetual Succession perpetuis temporibus duratur and which by their Oaths they are sworn to preserve that they should be felo de se And the express words of the Iudges reported in these Books shew their Opinion that the Corporation could not be surrendred Jones 168. Dodderidge Iustice there saith that the Dean and Chapter cannot surrender their Corporation Palm 501. Whitlock Inst there saith For that that the Dean and Chapter are Counsel to the Bishop instituted to that purpose they cannot dissolve themselves for the Politick Corporation is the Soul to the Body that cannot be granted or sever'd though the King can create a Corporation he cannot dissolve it And Jones Inst there 502. saith That the Dean and Chapter were Counsel to the Bishop and cannot destroy themselves if they could great Inconvenience thereby will ensue to the Church FINIS