assess by their By-law then have they done wrong and therefore our traverse is proper to their reasonable Toll that they had not time out of mind such a Toll as they set forth for it must be such a reasonable Toll as may answer to that which is assessed in the By-law and that they have not put in issue For the King when once he hath granted a Market cannot after grant Toll to that Market because it is a free Market and the People have right to come to it as a free Market neither can they when once by custom they have exercised their Power of assessing reasonable Toll alter that at their pleasure for it being once set all People have right to come upon such terms And if they increase the Toll under pretence to reduce it to certainty it will be void for they may lower their Price if they will but they can never come to increase the Penalty If therefore they have done all in not taking issue upon the Traverse which does take in the full substance of their Rejoynder if it be good then Iudgmene must be given against them upon that reason so then my Lord the Question will be Whether the making of a Law to raise Mony at large upon the Subject be a Forfeiture of the Charter And truly my Lord that it is For I. 'T is the usurping of a Power that they neither can have nor have by Law II. 'T is a Breach of the Trust annexed to the Corporation for 't is a Misuser of the Franchise to the oppression of the Kings Subjects and therfore the Charter must be forfeited and not the other Franchise not the Franchise of a Toll for they have none not the Franchise of the Market for that would be nothing If the Market be forfeited it must either be extinguished or kept if it be extinguished 't is a punishment to others that did not offend and if it be kept the it be forfeited 't is no punishment to them that do offend And 't is a Question whether a Market may be forfeited for taking unreasonable Toll and that appears in the Case of Maidenhead And as my Lord Coke says upon the Statute about taking Outragious Toll the Franchise should be seized only till it be redeemed by them But my Lord however without going far into that matter this Offence lyes not only in taking the money but in taking upon them and usurping a power to make Laws to raise money They have taken upon them a Legislative Power to oppress their fellow Subjects that is their Offence and that is a mis-user of their Franchise My Lord in the Case of Ship money it was not the Quantum of money that was raised that was complained or quarrelled at but it was the manner of levying of it without an Act of Parliament The Logick and Consequence of that was it which was so much debated and stood upon So here the abuse and the offence is the making the Law and the consequence of that for by the same reason that they have a Prescription to lay so much they may have a Prescription to lay ten times as much So that upon what I offer upon this point I conceive it ought to amount to a forfeiture of their Charter and the loss of their Corporation Then the next thing will be that which is the last matter that is the Petition and that is of a strange Nature where the Offence is not only in Presenting but in Printing and Dispersing of it it charges the King with interrupting the publick Iustice of the Nation and the making the Necessary Provisions for the Security of his Protestant Subjects for my Lord to say that the Prorogation of the Parliament which is the Kings Act who surely has alone and none but he the undoubted Prerogative of Calling Proroguing and Dissolving Parliaments to say that Act of his was an Interruption of Iustice is all one as to say the King did interrupt and 't is done by them as a Corporation 't is the Act of the City in their Common Council in the Name of the Corporation and as we have pleaded it the Mayor Citizens and Commonalty in Common Council did do it which sure is the Corporation as they would have it And that I rely upon for the reasons I offered before upon that point Then the matter of this Petition is the taking upon them to censure the King and his Government by this Petition The Printing and Dispersing it is now publickly Scandalizing and Libelling the King for 't is in the nature of an Appeal to the people 't is unlawful to Print any mans private Case while it is depending in any Court of Iudicature before it comes to Iudgment because 't is an Appeal to the people And that was my Lord Chief Iustice Hales Opinion in Colonel Kings Case And the ill consequences of such proceedings are so many and the danger so evident in these Licentious days that I do not know indeed whether it may tend The fact is confessed by them in their Rejoynder but they say they did it to alleviate mens fears and quiet their minds absque hoc that they did it aliter vel alio modo Surely my Lord this is no sort of excuse in the world nor is it capable of any They have owned the thing but they have excused it in the manner of doing thereof And I may venture to say the Traverse is impertinent Suppose a Man be Indicted for publishing a Libel and the owns the Fact but doth traverse absque hoc that he did it malitiose or with an intent to defame that surely would be an idle thing for those are constructions that the Law puts upon it and are not matters traversable or to be put in issue But if the Fact be done the Law says 't is maliciously done and with such an intention Therefore a confession of the Fact is a confession of all the consequences that the Law puts upon the Fact My Lord this can amount to no less than the forfeiture of their Charter not only for the greatness of the Offence but because otherwise the Law would be unequal for if this were the Case of a private common Person he must be fined and imprisoned during the Kings pleasure as was the Case of Harrison in I.Cr. 503. for words spoken of Iustice Hutton Now my Lord a Corporation is not capable of suffering this Imprisonment and therefore 't is a much greater Offence in them as the Body is greater than any particular Member And then that which is a greater Offence would have a less Punishment if the Charter it self were not forfeited than it would if a particular Person were punished And give me leave to apply here the Reason of the Earl of Gloucester's Case that I cited before Quia Dominus Libertatis puniretur in eo quo deliquit So they shall lose their Charter for the abuse of that Power that was entrusted with them by their
should be exhibited to the King in the Name of the Mayor Aldermen and Commons in Common Council assembled and set forth the Petition in the Name of the Mayor Aldermen and Commons in Common Council assembled in haec verba Wherein among other things it is contained That they were extremely surprised at the late Prorogation whereby the Prosecution of the publick Iustice of the Kingdom and the making provisions necessary for preserving the King's Person and his Protestant Subjects received Interruption And did farther agree and order That that Petition after it had béen presented should be printed which was so ordered with intent That false Reports concerning the Petition might be prevented The Enemies of the King and the Conspirators from procéeding in the Conspiracy deterred The Troubles in the minds of the Citizens alleviated and the Citizens know what had béen done upon their Petition That the Petition was delivered to the King and afterwards printed That this is the same Petition and Printing in the Replication mentioned absque hoc that any Petition of or concerning the Prorogation of the Parliament was made ordered published or printed in any other manner than they have alleadged as the Attorney General supposeth To this part of the Rejoinder Mr. Attorney hath demurred generally by the Demurrer the Fact alleadged in the Replication is admitted to be true And it is true that there are no words that are written or spoken but are subject to various Constructions But I take it that no words whether written or spoken ought to be taken in an ill sense if they may reasonably be taken in a better Nemo prefumitur esse malus and therefore the words must stand as they are penn'd and having first expressed their Feats and next their Hopes from the King and Parliaments procéedings in Trial of those that were Impeached and making Laws for their Security and how they were surprized at the Prorogation then they say That by that Prorogation the prosecution of the publick Iustice of this Kingdom and the making necessary provisions for the preservation of the King and his Protestant Subjects had received Interruption It is mentioned only as a consequence of the Prorogation 't is not said or expressed that the King did interrupt for I think there is great difference betwixt the one sort of expression and the other An ill Consequence may attend a good and commendable and most necessary Act but no Consequences can make an ill Act good and therefore the expressing the Consequence doth not necessarily condemn or declare the Act to be an ill Act. Suppose that in the time of the great Plague a man had had a Suit in Westminster-Hall wherein all his Estate had béen concerned and had said or writ That by the adjournment of the Terms by the King the Procéedings of the Courts of Iustice in his Suit had received an Interruption had these words béen punishable The adjournment was then the most necessary and commendable Act that could be for the preservation of the King's Subjects in that raging Pestilence and the Act it self being so good and necessary though there were such Consequence as to that particular Suit the writing or saying that it had such a Consequence such an Interruption did not I conceive condemn judge declare or express the Act to be ill Suppose a man had had a Bill depending in that Parliament to be Enacted for the enabling him to sell his Land to pay his Debts to free him from a Gaol Or suppose that some one of the Lords impeached in that Parliament had made a Petition for the Sitting of the Parliament and had therein expressed as a reason and ground of his Petition the like words as in this Petition What would the Court have judged of it are not the Cases much the same if they are there will be no distinction of persons in Iudgment I am sure there ought nor Perhaps when this Petition was made there might be too much heat in the minds of men and it is true that heat encreaseth heat and fire kindles fire 't is time for all sorts to grow cool and temperate and to weigh and consider we are or should be considering men This Petition was made Nemine contradicente and undoubtedly among such a number as the Common Council there must be men of variety of Tempers and Dispositions But for the greatest number of the Aldermen and Common Council think of them we know the men many of them can we imagine that they had either the least ill thought or meaning towards the King his Person or Government in this Petition or the printing it And as for the printing it that my Lord stands upon the same Reasons and Grounds For if there be nothing ill or unlawfull in it contained then the printing and publishing of that which contains nothing ill or unlawfull is not as I conceive ill or unlawfull Printing is but a more expeditious way of Writing and is good or bad as the matter printed is good or bad The Defendants in their Rejoinder have set forth their whole case the Reasons and Grounds of what the Common Council did and the manner and intent of their doing it all which Fact cannot be denied to be true but is now confessed by the Demurrer It hath not nor can be said but it is well pleaded and might have been traversed and denied if not true But it is confessed by the Demurrer to be true and therefore that must be taken to be the Fact and not as alleadged in the Replication and then so taken I submit it to your Iudgment 3. But the next thing considerable is Whether supposing and admitting that if done by the Body Politick it had been a Miscarriage or a Crime whether not being done by the Body Politick nor under the Common Seal but by Common Council whether thereby the Being of the Corporation shall be forfeit A Common Council in Corporations is generally a select number of the Body corporate constituted to advise and assist the Corporation in their ordinary affairs and business There is no certain Rule nor Measure of their Power wherein all the Common Councils agree In some Corporations the Common Council have greater authority in some less according to the several authorities by the respective Charters where the Corporations are by Charters or by Custome or Vsage where the Corporations are by Prescriptions But in all they are a subservient number of Men constituted and authorised for particular ends and purposes And in this case I think the Court can take notice of the Common Council no otherwise than upon the Record they appear to be The Replication doth not say what they are but would go in the dark by intention and presumption the best way and method to arbitrary Determination The Rejoinder saith that the Citizens and Freemen are a great number fifty thousand and more That there hath been time out of mind a Common Council consisting of the Mayor and Aldermen for
the space of Seven Years next after the making this Ordinance received divers great Sums of Mony in all amounting to 5000 l. per Annum in oppression of the Kings Subjects And further That whereas a Session of Parliament was holden by Prorogation and continued to the 10th of January 32 Car. II. and then prorogued to the 20th of January then next The Mayor Commonalty and Citizens 13 Jan. 32 Car. II. in their Common Council assembled unlawfully maliciously advisedly and seditiously and without any lawful Authority assumed upon themselves Ad censendum judicandum dictum Dominum Regem Prorogationem Parliamenti per Dominum Regem sic fact ' And then and there in Common Council Assembled did give their Votes and Order that a certain Petition under the name of the Mayor Aldermen and Commons of the City of London in Common Council assembled to the King should be exhibited in which said Petition was contained That by the Prorogation the prosecution of the publique Justice of the Kingdom and the making necessary provision for the preservation of the King and of his Protestant Subjects had received interruption And that the Mayor and Commonalty and Citizens in the same Common Council assembled did unlawfully maliciously advisedly and seditiously and with intention that the said Petition should be dispers'd amongst the Kings Subjects to induce an opinion in them that the said King by proroguing the Parliament had obstructed the publique Justice and to incite the Kings Subjects to hatred of the Kings Person and Government and to disturb the Peace of the Kingdom did Order that the said Petition should be printed and the same was printed accordingly to the intent and purpose aforesaid By which the Mayor Commonalty and Citizens aforesaid the Priviledge Liberty and Franchise of being a Body Politique and Corporate did forfeit and afterwards by the time in the Information that Liberty and Franchise of being a Body Politique did usurp upon the King Et hoc c. And as to the other two Pleas viz. The making and having Sheriffs and Justices of the Peace The Attorney General Imparles to Mich. Term. THE Mayor Commonalty and Citizens Rejoynder as to the Plea of the Attorney General pleaded in Assigning a Forfeiture of their being a Body Politique and Corporate Protestando That those Pleas by the Attorney pleaded and the matter in the same contained are insufficient in the Law to forejudge or exclude the Mayor and Commonalty and Citizens from being a Corporation Protestando etiam That no Act or Deed or By-Law made by the Mayor Aldermen and Common Council is the Act or Deed of the Body Corporate Protestando etiam That they the Mayor and Commonalty and Citizens of London never took upon them any unlawful or unjust Authority to Tax the Kings Subjects for their own private Gain or did ever levy or exact from the Kings Subjects coming to Markets such yearly Sums as in the Replication are alledged For Plea say That London is the Metropolis of England and very populous Celeberrimum Emporium totius Europae That there are and time out of mind have been divers publique Markets for Provision and Merchandise within the said City to be sold That the Mayor and Commonalty and Citizens have been time out of mind and yet are seiz'd of these Markets in Fee and by all the said time at their own Costs and Expences have provided and have accustomed and ought to provide at their own costs Places for the holding the said Markets and Stalls and Standing and other Accommodations for persons bringing Provisions and Merchandises to the said Markets and Supervisors and other Officers for the better preserving and ordering the said Markets and of the great concourse of persons coming to the same and for the sustaining and supporting of the said costs and expenses by all the time aforesaid have had and ought to have reasonable Tolls Rates or Sums of Mony of persons coming to the said Markets for their Stalls Standings and other Accommodations by them for the better exposing their Commodities had and enjoyed They further say That the Citizens and Freemen of London are very numerous viz. 50000 and more That within the said City there hath been time out of mind a Common Council assembled as often as necessary consisting of the Mayor Aldermen and of certain of the Citizens not exceeding 250 persons thereto annually elected called the Commons of the said City That there is a Custom within the said City for the Mayor Aldermen and Common Council to make By-laws and Ordinances for the Regulation and Government of the publique Markets within the City That these Liberties and Customs of the City were confirmed by Magna Carta and the other Statutes in the Plea abovementioned That by reason of the burning of the City in Septemb. 1666. and the Alterations in the Market-Houses and Places thereby occasion'd for the establishing and resetling the Markets within the City 17 Septemb. 26 Car. II the then Mayor Aldermen and Commons in Common Council Assembled according to the said Custom for the better Regulation of the said Market did make and publish an Ordinance Entituled An Act for the Settlement and well-ordering the Publique Markets within the City of London by which said Ordinance reciting that for the accommodation of the Market People with Stalls Shelters and other Necessaries for their Standing in the Markets and for the amendment paving and cleansing the Market-places and for the support and defraying the incident Charges thereof there have been always certain reasonable Rates and Duties paid for the same And to the intent that the said Rates may be ascertain'd and made publique to all Market-people and the Collectors restrained from exacting It was Enacted and Ordained by the said Common-Council that the Rates and Sums in the Replication should be paid to the use of the Mayor and Commonalty and Citizens or upon refusal to be removed out of the Market And they aver that these are all the Rates or Duties paid and were reasonable Sums to be paid and these they have demanded and received for the use and purpose aforesaid as was lawful for them to do As to the other matter alledged by the Attorney General in Assigning the Forfeiture they say That within this Kingdom viz. at the Parish of St. Michael Bassishaw London there was an execrable Plot and Conspiracy prosecuted by Papists to destroy the King and to subvert the Ancient Government and suppress the true Religion in this Kingdom Established That Sir Edmundbury Godfrey took Examinations of Witnesses and Informations of the same and also of the burning of London by the Papists That divers of these Conspirators had lain in wait for him and murthered him to the intent to suppress his Examinations and to deter other Magistrates from acting in the Discovery That Green and others were try'd and hang'd for this Murther That Coleman and others were also try'd and executed for the same Conspiracy That William Lord Powis
I understand not for nothing can be more flat and plain against him If so be we should forfeit our Toll or our Market be it so nay if we should forfeit our Liberty of having a Common Council what then how is it possible to bring it up to a Forfeiture of the Corporation You shall forfeit a Court of Pypowders if you forfeit your Market because 't is incident to it and dependent upon it and subject to what dangers the Market it self is subject to but the being of a Corporation nothing can transcend that To be sure what is incident to it cannot transcend it 't is but a Subject to that which is is superiour For example sake my Lord I will cite you a Case which is the Case of the City of London too about the measurage of Coals It is Sir Julius Caesar's Case 1 Leon ' 106. And I choose to cite that Book for though it did not come out with your Lordships Authority yet my late Lord Chancellor gave this just accompt of it That it was one of the best of our later Reports Sir Julius Caesar libelled in the Admiralty against the Officer of the City for measuring Coals upon the Thames Fleetwood came to the Bar and prayed a Prohibition and Edgerton the Solicitor on the other side complained that the Mayor of London did take a Fine for this measurage and made an Office of it and this he conceived was Extortion which is the thing complained of here in so many words and being upon the Thames should be punished in the Admiralty As to that the Iudges replyed by no means and Wrey Gawdey said if it be Extortion in the Mayor there is no remedy for it in the Court of Admiralty but in the Kings Courts and it shall be redressed here in a Quo Warranto says Gawdy 'T is true a Quo Warranto might well have been brought for redressing that Extortion but it could not mean thereby that the Corporation should be dissolved And that it was so understood is most plain for accordingly a Quo Warranto is brought You have it in Cokes Entries fol. 535. and 536. placit ' 4. And the City of London appeared and pleaded and prescribed to it and thereupon the Attorney General that then was my Lord Coke himself was satisfied and confessed their Title and Iudgment was given for them and since it hath been held good and they have enjoyed it in peace and this I hope is a good Example for Mr. Attorney to follow in this Case My Lord I come now to that part which I come least willingly to I mean that of the Petition and that which I have to say in it is this my Lord. First I say That this Petition is justified in the Pleading and I hope it is very justifiable if it were but excusable 't is enough That it is justifiable to Petition the King in our necessities and extremities is plain from what my Lord Hobart says fol. 220. He says it was resolved by the Court in Renham's Case that it was lawful for any Subject to Petition to the King for a redress in an humble and modest manner For as 't is there said Access to the Sovereign must not be shut up in case of the Subjects distresses Now the Common Council are not less priviledged than any other sure but rather more in this kind of Addressing and Petitioning I cannot tell what Crime to make of this there is so much alledged against us I did very well observe truly and would always observe and remember in all such Cases what my Lord-Kéeper here said to your Lordship That Council should not so much speak as if they would abett the Guilt of their Clyent rather than advocate for their innocency My Lord If the words themselves that are alledged are not words that are unlawful to be delivered or spoken then all this that they are dressed up with of the intention to censure the King and to bring him into dislike with his People all that must go for nothing and are not to weigh in the Case Now the Words are these That there was a Prorogation and by means of this there being depending so many Impeachments of Lords and others and Bills in the Parliament in both Houses which could not be perfected any where but there the prosecution of the publick Iustice and the making Provisions necessary for the preservation of his Majesty and his Protestant Subjects received an interruption Now my Lord I conceive these Words are not Words that in themselves are unlawful And for that your Lordship will be pleased to consider our Plea I néed not repeat it you have it before you If they are in sense and substance the same Words that have béen spoken by the King and the Lords and Commons in Parliament he that will not be satisfied with that Authority will not be satisfied with any Then what do we say We say that the prosecution of the publick Iustice received an interruption does not the King say so and more in his Spéech we have set forth wherein he recommends it to both Houses that Iustice may be done What is the meaning then but this if the further prosecution of the Offenders goes not on Iustice is not done and so we speak but the Kings Words We say they are not tryed or they were not tryed they themselves complain of it to this day and therefore Iustice did receive an interruption I am confident without reflection that Honourable Person my Lord Danby in this point hath said Words much more liable to exception though truly Words that I believe deserve no rebuke He has complained that Iustice was not done in his Case because he was not tryed and that when he desired to be tryed too but his Liberty taken away and he forfeited that which was dearer to him than Lands or Honours his Health whereby he endangered his Life and lost all the comforts of Life If it were lawful for him to say as certainly it was That Iustice was not done in his Case why might not the City say so Either these Lords ought to be condemned or they ought to be acquitted 't is hard to say Iustice is done when they lie so long in Prison and are not either acquitted or condemned Then we say this That the making Provision for the preservation of the Kings Person and of his Protestant Subjects received an interruption To this part we give this Answer We set forth That there were Bills depending in the Parliament for this purpose and that is agréed to us by the Demurrer and that these Bills could not pass into Laws any more than the Lords could be tryed but in Parliament Why then if so be it be so that the matter cannot be done nor provision made but as that Proclamation that issued for the Fast said and as the Addresses of both Houses for the Fast do say By the blessing of God upon the Counsels of King and Parliament if
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
if with more 6 d. a Day That if any refused to Pay he should be amoved from his place in the Market That by Colour of this By-Law the Mayor and Commonalty and Citizens have Extorted great Sums of Money for their own private Gain amounting to Five thousand Pounds per Annum 2. And farther That whereas there was a Session of Parliament holden 21 Octob. 32. C. 2. and continued till the 10th of Jan. 82. and then by the King Prorogued to the 20th of that instant January The Mayor Commonalty and Citizens Jan. 13. in their Common Council assembled malitiose advisate seditiose absque legali Authoritate in se assumpserunt ad censendum judicandum dict' Dom ' Regem nunc Prorogationem Parliamenti by the King prorogued and in the same Common Council Vota Suffragia sua dederunt ordinaverunt That a Petition sub nomine the Mayor Aldermen and Commons of the City of London in Common Council assembled to the King should be exhibited In which Petition it was contained That by that Prorogation the Prosecution of the publick Justice of this Kingdom and the making necessary Provision for the Preservation of the King and his Protestant Subjects had received Interruption And that the Mayor Commonalty and Citizens in the same Common Council did unlawfully malitiose advisate seditiose with intent that the same Petition might be published and dispersed among the King's Subjects to induce in them an Opinion that the King had by that Prorogation obstructed the publick Iustice and to incite hatred against the King's Person and Government and to disturb the Peace did order that Petition containing the said scandalous matter to be printed and thereupon to those ill Ends and Purposes they caused it to be printed and published By which the Mayor Commonalty and Citizens the aforesaid Liberty and Franchise of being a Body Politick forisfecerunt and after by the time in the Information have and yet do usurp it Before I come to the matter I would speak to the Pleading herein and in the subsequent Surrejoinder And for the Pleading in it I think it is as singular and unpresidented as the Matter of it is This Replication supposing the matter had been the Act of the Body Politick and good and sufficient yet as pleaded is insufficient and not warrantable by any Law or Practice ever known It contains 1. An Issue viz. no Corporation time out of mind 2. Two Causes of Forfeiture of the Corporation admitting they once were a Corporation So that though the point in question be but one viz. whether we are lawfully a Corporation or no Corporation though the Plea is single that we are a Corporation by Prescription time out of mind yet here is to try this point 1. An Issue 2. A double Plea alleadging two Causes to avoid it for a Forfeiture This I conceive cannot legally be done though in the King's Case I do agree the King hath great Prerogatives in Pleadings and as far as ever they have been allowed or enjoyed let them be so still but that the King can to the same matter both take Issue and also plead over at the same that I deny It is most reasonable that the Law should be carefull to preserve the King 's Rights but on the other side I think it is not reasonable that the Law should admit or allow as legal any way of Proceeding that should destroy or render the Subjects right indefensible be his right as good as it may be If so be that Mr. Attorney may both take Issue upon the Fact and also plead over I would by your leave ask how many Issues and how many Pleas over the King's Attorney may have Suppose the King bring a Quare Impedit or Writ of Right or any other Action the Defendant makes his Title which is usually done by many Grants and Conveyances from one to another to bring it to himself May the King's Attorney now take as many Issues as facts issuable plead as many Pleas as he pleaseth and all this simul semel 'T is true that in this case Mr. Attorney hath assigned only two Breaches or Causes of Forfeiture but he might if he had pleased by the same Reason have assigned 200. If this may be Are we not all at Mr. Attorney's Mercy If this may not be then how many Pleas Is it in Law defined In favorem Vitae a man may plead a special Plea and plead also not guilty but not several special Pleas but that there is any such Prerogative for Mr. Attorney in Suits betwixt the King and his Subjects I can find no Instance or Authority for it For though it be true as I have said that the King hath great Prerogatives in pleading yet it is as true that this is not boundless but that if in the King's Writs there be mistakes or his Writ or his Action misconceived he shall be bound by it in like manner as Subjects are or shall Partridge against Strange and in the same Book in my Lord Berkley's Case Com. 84. a. 236. a it is expresly said That though the King hath many Prerogatives concerning his Person Debts and Duties yet the Common Law hath so admeasured his Prerogative that it shall not take away or prejudice the Inheritance of any The King hath a Prerogative that he may wave his Demurrer and take Issue or wave his Issue and demurre upon the Plea But saith the same Book he must doe it the same Term Com. fol. 236. not in any other Term for then he may doe it in infinitum without end and the Party hereby may lose his Inheritance and for that the Common Law will not suffer the King to have such a Prerogative These are the words of the Book And in the point that this Prerogative must be made use of the same Term and that the King's Attorney cannot vary in another Term and wave his Issue is 13 E. 4. 8. Bro. Prer 69. 28 H. 8. 2. So in making Title to a Quare Impedit he at the end of the Term waved his first Title and made another But it is true also Rex vers Bagshaw Cr. 1. 347. that as to the point of Waving Demurrers and taking Issue in another Term there is authority that he may so doe but whether it may be done or not in another Term is not material to our case But the use I make of these Cases is to prove that the King's Attorney should not have both together simul semel as in this case he hath done he must wave one before he can have another Plea For those Debates about his varying his Plea by waving his Issue and demurring or waving his Demurrer and taking Issue signifie nothing if he may in one Plea and at the same time take Issue and demurre or plead over to the same matter or point as is done in this case therefore those Books strongly prove that the Prerogative that the King hath
R. 2. Iustice Jones 283. hath it verbatim out of the Parliament Roll. The constant course of pleading the Customs of London is to plead a confirmation of them by this Act of Parliament So that as to this point there is not any one Book or Opinion before this day in favour of what is affirmed that these are not Acts of Parliament and our Plea stands good in Law and the Ordinance and By-Law and Custom good and then no Forfeiture thereby 3. But suppose and admit that this By-Law be the Act of the Corporation be not good and sufficient in Law nor in Law justifiable Quid sequitur Then it is void in Law Then if it be void in Law How can it make a Forfeiture Suppose a Lessee for years or for Life makes a Feoffment but it is not duly executed for want of Livery and Seisin by which it is void in Law Can this make a Forfeiture of the Estate of the Lessee Suppose a Corporation Tenant pur auter vie makes a Feofment which is void for want of Livery duly made Will this forfeit their Estate A void Act shall not destroy or forfeit a precedent Estate A Parson that hath a former Benefice accepts a second Benefice incompatible Dy. 377. b. was instituted and inducted but did not read the the Articles his first Benefice was not forfeit or void hereby because by the Statute the not reading his Articles had made his Institution and Induction void So that then whether this By-Law or Ordinance were good or void in Law perhaps is not much material it cannot make any Forfeiture of the Corporation it can have no such effect for if it be a good and lawfull By-Law no Forfeiture can be for doing a good and lawfull Act. If the Ordinance be not warrantable by Law then it is void in Law if void in Law a void Act can make no Forfeiture Obj. But you received and exacted from the Kings Subjects Summs of Money by this Ordinance Resp Suppose we did and that we had no right to have this money if an Officer by colour of his Office receive more than is due it is Extortion and a Crime punishable But if a Person that is no Officer take money that is not due or more than is his due the Parties injured have their Remedies by Action but this is no Crime for which any Forfeiture or Penalty is incurred by the person that so takes or receives the money Suppose a Lord of a Manour exact or take greater Fines or Summs of Money from his Copyholders or Tenants than he ought they have their Remedies by Actions against those that receive so if a Corporation receive or take moneys supposed to be due but in truth is not how can this Forfeit any thing Obj. But you took upon you a Power and Authority to tax the King's People and to take and receive the money so taxed Resp This is but the same thing only put into greater words It is still but the making of an unlawfull By-Law and thereby appoint money to be paid which ought not or more than should be and the turning of it or expressing it in stately words of taking upon you or usurping Authority to impose upon and tax the King's People Whosoever doth any act or thing he takes upon him and doth also execute the Power and Authority of doing that act or thing which is comprehended in the thing done The making a By-Law or Ordinance whereby more is ordered to be paid than ought or money appointed to be paid where none is due is still all the fact and thing done and if that make no Forfeiture of the Corporation or Crime punishable by Indictment or Information except only as the Statute 19 H. 7. c. 7. which I shall hereafter mention hath appointed for Forfeiture of 40 s. The taking or usurping the Power to doe it cannot be more or effect more than the doing the thing which comprehends it 2. As to the other Cause alleadged in the Replication for Forfeiture the Petition printing and publishing it In the Replication 't is alleadged That a Parliament the 10th of January was prorogued to the 20th of January That the 13th of January the Mayor Commonalty and Citizens of London in their Common Council assembled malitiose advisate seditiose took upon them ad judicand ' censand ' the King and the Prorogation of the Parliament by the King so made and that the Mayor and Commonalty and Citizens of London so in the said Common Council assembled did give their Votes and Order That a Petition in the Name of the Mayor Aldermen and Commons of the City of London in Common Council assembled should be exhibited to the King In which Petition it was contained That by that Prorogation the prosecution of the publick Iustice of the Kingdom and the making necessary provisions for the Preservation of the King and his Protestant Subjects had received Interruption And that the Mayor Commonalty and Citizens of London in Common Council as aforesaid assembled did malitiously and seditiously to the intent the same should be dispersed among the King's Subjects and to cause an Opinion that the King obstructed the publick Iustice and to stir up Hatred and Dislike against the King's Person and Government did order the said Petition to be printed and afterwards they did print it and caused it to be published The Defendents in their Rejoinder to this Breach set forth and alleadg Rejoinder as to the Petition That there was a Plot against the Life of the King the Government and the Protestant Religion and set forth all the Proceedings upon it the Attainders and Impeachments of the Lords in the Tower in Parliament depending the Proclamations declaring the Dangers by this Plot that they could not otherwise in humane Reason be prevented but by the Blessing of God upon the Consultations and Endeavours of that great Council the Parliament and commanding a General Fast to be kept in London the 22d of December and that it was kept accordingly The Proceedings in the Parliament towards the Tryall of the Lords and preparing Bills to be enacted into Laws for preservation of the King and his Subjects against these Plots and Cospiracies That divers of the Citizens loyal Subjects being much affrighted and troubled in their Minds with the apprehension of these Dangers did exhibit their Petition to Sir Patience Ward then Lord Mayor and the Aldermen and Commons in Common Council then assembled containing their Fears and Apprehensions and Expectations from the King and that Parliament did petition that the Common Council would petition for the sitting of that Parliament at the time prorogued And thereupon the Mayor and Aldermen naming them and Commons in Common Council assembled from their Hearts truly loyal to the King and for the satisfaction of the Citizens who had exhibited that Petition and of intent to preserve the Person of the King and his Government did give their Votes and order a Petition
that time till within these three years I believe it never entred into any mans thoughts that a Corporation was forfeitable for farther proof whereof divers other Statutes and the whole series of matter is Argument 15 H. 6. cap. 6. The Statute of H. 6. that provides against Abuses and Exactions made by Societies Incorporate by their By-Laws and Ordinances and appoints a Forfeiture of ten Pounds and of their power to make By-Laws To what end should this be if the Corporations themselves were forfeited or thought so to be The Statute of H. 7. recites the Statute of H. 6. 19 H. 7. cap. 7. and the Exactions and Abuses by Fellowships by their By-Laws and Ordinances and Ordinances and appoints a Penalty of forty Pounds upon a they exact Money by an unlawfull and unwarranted By-Law not examined and signed by the Chancellor and Chief Iustice The Statute of the 12 H. 7. cap. 6. sets forth grievous Exactions by the Fellowship of Merchant Adventurers 12 H. 7. cap. 6. by their By-Laws and imposeth a Penalty for the future The Statutes 22 H. 8. 4. 28 H. 8. 5. shew like Exactions by Corporations upon Apprentices by their Ordinances and By-Laws provides Remedy and enacts Penalty If in those times it had béen thought or imagined that a Corporation had been forfeitable every of these Offences forfeited it what need farther Remedy In the Case of Hoddy and Wheehouse of excessive Toll by the Town of Northampton Moor. 474. 39 Eliz. In the Quo Warranto against a Corporation Palmer 77. though the Question was concerning their taking Toll and whether they had forfeit their Market or only their Toll no thought of forfeiting their Corporation ever mentioned So that I think I may conclude with the tumultuous times of E. 1. E. 2. and R. 2. what was then done doth plainly shew the Corporations were not forfeit or dissolved That by all the Acts of Parliament and Proceedings in almost all the Reigns of any length or duration from that time to this very Case the Opinions and Thoughts of men were otherwise as by the Statutes and Transactions appears Not one Opinion Book or Authority produced or to be found The great Concern not only of this great City but of all other Cities Towns and Corporations Ecclesiastical and Temporal all depend upon it And which is more than all the very Government by Law Established will be in great danger of Alteration by it I have argued long and tryed your Lordships patience the weight and length of the Case and rareness of the matter there never having been the like before in any Age will I hope excuse me But besides the whole frame and foundation that the other side have laid being all built upon general undigested Notions as I take it viz. That Abuser and Misuser of Liberties forfeits them without distinguishing betwixt one thing and another That the words Forfeiting and Seising Liberties found in old Records should be Authorities to prove forfeiting Corporations or Beings of the Body Politick though no such thing then or at any time since till very lately ever thought on or imagined It was necessary for me to open and set forth these general notions and to explain and distinguish which I hope I have done that it may appear what the sense of them is how far they agree with Law and Iustice and how far not And if in the doing hereof or the setting out the repugnant or inconsistent Matters or Opinions arising in this Case to maintain this Quo Warranto I have expressed my self in any other manner than became me I humbly beg pardon for it and that it may not reflect upon the Cause nor prejudice it Vpon the whole Matter If this Information brought against the Body Politick for Vsurping to be a Body Politick ought to have been brought against the particular Persons If it be repugnant or contradictory that a Corporation can usurp to be a Corporation that a Body Politick or Being can usurp to be a Body Politick or Being before it had a Being or to be that same Body Politick or Being which it was when it did usurp If forfeiting a Franchise or Liberty or other Estate cannot determine or vest that Franchise or Estate in the King till the Forfeiture appear on Record Then the old Corporation supposed to be forfeited if it were so did notwithstanding and yet doth continue in being there being no Record to determine it and consequently that which is pretended a new one by Vsurpation is impossible If by Seisure into the King's hands as pretended the Continuance of the Corporation be intended How inconsistent is it with Law or Iustice to continue any thing in the King that is wrongfully usurp'd and the Parties to be punished fined and committed for usurping If Mr. Attorney's Replication taking issue upon our Prescription to be a Corporation and going over and alleadging several distinct Causes of Forfeitures cannot by Law be maintained and in the Example doth introduce a way to bring all mens Estates subject to Mr. Attorneys will and pleasure For let any mans Right be as good as can be it will be scarce possible to defend it if such Pleadings as in his Replication be allowable by Law Then be the matter in Law as much against us as possible yet Mr. Attorney can have no Iudgment for him upon this Information Next Supposing the Information all good in Law Yet If the Iudgments Records and Authority that have been cited by them for Seisures do plainly shew that Seisures and Forfeitures are very different in their Natures That the Corporations all continued notwithstanding the Seisures And the Seisure was only the Kings putting in Mayors and Officers to act in them instead of the others Elected or Constituted by the Corporation and they remain Corporations by Prescription to this day and never were forfeited dissolved or determined by such Seisures If the General Authorities in Books that the Misusing or Abusing a Franchise be truly applicable to Franchises that are Estates and Interests grantable or conveyable from man to man and never were intended of such a thing as is rather a Capacity or Being than a Franchise If there be no Case or Precedent or Opinion to be found for it If of the contrary the particular Cases cited prove that where the Corporations have by Miscarriages forfeited particular Franchises they do not forfeit their Corporations If there be scarce any Corporation in England that have not at some time or other done something they should not or omitted to do something they should and thereby forfeited their Corporation and consequently all are Vsurpers and their Corporate Acts since done all void If the Corporation here hath done nothing but that the Mayor Aldermen and Common Council are only Delegates Deputies or Ministers of the Corporation for particular purposes If Servants Deputies or Delegates doe that which they have no Authority to doe they must answer for it in their own
I Have perused this Report and do License George Grafton to Print the same Jan. 23. 1689 90. Hen. Pollexfen THE CASE OF THE Quo Warranto Against the City of LONDON WHEREIN The JUDGMENT in that CASE and the ARGUMENTS in LAW touching the FORFEITURES and SURRENDERS of CHARTERS are Reported LONDON Printed for George Grafton near Temple-Bar in Fleet-street 1690. Mich. 33. Car. II. in B. R. rot 137. Sir Robert Sawyer Knight His Majesty's Attorny General AGAINST The Lord Mayor and Commonalty and Citizens of London The Information in Nature of a Quo Warranto sets forth THAT the Mayor and Commonalty and Citizens of the City of London by the space of a Month then last past and more used and yet do claim to have and use without any Lawful Warrant or Regal Grant within the City of London aforesaid and the Liberties and Priviledges of the same City The Liberties and Priviledges following viz. I. To be of themselves a Body Corporate and Politique by the Name of Mayor and Commonalty and Citizens of the City of London II. To have Sheriffs Civitat Com' London Com. Midd ' and to name elect make and constitute them III. That the Mayor and Aldermen of the said City should be Justices of the Peace and hold Sessions of the Peace All which Liberties Priviledges and Franchises the said Mayor and Commonalty and Citizens of London upon the King did by the space aforesaid Usurp and Yet do Usurp THE Mayor and Commonalty and Citizens they appear by their Attorney and Plead Plea I. As to their being a Body Politique and Corporate they prescribe and say 1. That the City of London is and time out of mind hath been an Antient City and that the Citizens of that City are and by all that time have been a Body Corporate and Politique by Name of Mayor and Commonalty and Citizens of the City of London That in Magna Carta de Libertatib ' Angliae in the Parliament holden 9 Hen. 3. it was enacted quod Civitas London ' habeat Omnes Libertates suas antiquas Consuetudines suas That in the Parliament 1 E. 3. That King by his Charter De Assensu Prelatorum Comitum Baronum totius Communitatis Regni sui and by Authority of the same Parliament having recited that the same Citizens at the time of the making Magna Carta and also in the time of Edward the Confessor William the Conqueror and other his Progenitors had divers Liberties and Customs Wills and Grants by Authority aforesaid That the same Citizens shall have their Liberties according to Magna Carta And that for any Personal Trespass Alicujus Ministri ejusdem Civitatis Libertas Civitatis illius in manus ejusdem Domini Regis Ed. 3. vel heredum suorum non caperetur sed hujusmodi Minister prout qualitatem transgressionis puniretur They Plead also That in the Parliament holden 7 R. 2. Omnes Consuetudines Libertates Franchesia Privilegia Civitatis predict ' tunc Civibus Civitatis illius eorum Successoribus Licet usi non fuerint vel abusi fuerint Authoritate ejusdem Parliamenti ratificat ' fuerunt Then they Plead the Confirmations of several later Kings by their Charters as of King Henry VI. by his Charter Dated 26 Octob. 23 H. 6. King Edward IV. by his Charter Dated 9 Nov. 2 E. 4. King Henry VII by his Charter Dated 23 July 20 H. 7. King James I. by his Charter Dated 25 Sept. 6 Jac. 1. King Charles I. by his Charter Dated 18 Octob. 14 C. 1. King Charles II. by his Charter Dated 24 Jan. 15 C. 2. Ac eo Warranto they claim to be and are a Body Politique c. and traverse their Usurping upon the King II. As to the having electing making and constituting Sheriffs of London and Middlesex they Plead That they are and time out of mind were a Body Politique and Corporate as well by the Name of Mayor and Commonalty and Citizens quam per nomen Civium London And that King John by his Letters Patents under the Great Seal of England in Court produced dated 5 Julii Anno regni sui primo granted to the Citizens of London that they should have the electing making and constituting Sheriffs of London and Middlesex imperpetuum Then they plead this Liberty and Franchise confirmed to them by all the aforementioned Statutes and Charters ac eo Warranto they claim to make and constitute Sheriffs III. As to the Mayors and Aldermens being Justices of the Peace and holding Sessions they plead That the City is and time out of mind was an Antient City and County and the Citizens a Body Politique That King Charles the First by his Letters Patents Dated 18 Octob. 14. Car. I. Granted to the Mayor and Commonalty and Citizens of the City of London That the Mayor and Aldermen of London such of them as had been Mayors should be Justices of the Peace and should hold Sessions eo Warranto they claim to be Justices and hold Sessions TO this Plea the Attorney General replies Respons And as to the Mayor and Commonalty and Citizens of London being a Body Politique and Corporate First takes Issue that they never were a Body Corporate and for this puts himself upon the Country And then goes over and pleads That the Mayor Commonalty and Citizens assuming upon themselves to be a Body Politique and Corporate and by reason thereof to have Power and Authority to convocate and assemble and make Laws and Ordinances not contrary to the Laws of the Kingdom for the better Government of the City and Citizens and for preserving the Kings Peace Under colour and pretext thereof but respecting only their private gain and profit and against the Trust in a Body Corporate by the Laws of this Kingdom reposed assumed an unlawful and unjust Authority to levy Mony upon the Kings Subjects to their own proper use by colour of Laws and Ordinances by them de facto ordained and established And in prosecution and execution of such illegal and unjust Power and Authority by them Usurp'd 17th of Septemb. 26 Car. II. in their Common Council Assembled made constituted and published a certain Law by them de facto enacted for the levying of several Sums of Mony of all the Kings Subjects coming to the Publique Markets within the City to sell their Provisions viz. Of every Person for every Horse-load of Provisions into any publick Market within the said City brought to sell 2 d. per day For every Dosser of Provisions 6 d. per day For every Cart-load not drawn with more than Three Horses 4 d. per day If drawn with more than three Horses 6 d. per day And that these Sums of Mony should be paid to the use of the Mayor Commonalty and Citizens And if any refused to pay then to be removed from his Place in the Market And that by colour of this Law the Mayor Commonalty and Citizens for their own private Gain had Illegally by
Lord Arundel of Warder Lord Petre Lord Bellasis were Impeached by the Commons in Parliament of High Treason for the same Conspiracies and sent to the Tower That the King in his Speech to that Parliament had recommended to them the further pursuit and examination of that Conspiracy declaring he thought not himself nor them safe till that matter were gone through with and therefore that it was necessary that the said Lords in the Tower should be brought to their Trials that Justice might be done and the Parliament having made an Address to the King wherein both Lords and Commons declared their being deeply sensible of the sad condition of the Realm occasioned chiefly by the Conspiracies of a Popish Party who had plotted and intended the Destruction of the King and Subversion of the Government and Religion of the Kingdom and thereupon a Solemn Fast kept pursuant to the Kings Proclamation grounded upon the said Address and divers Bills prepared to be pass'd into Laws for preservation of his Protestant Subjects These Impeachments and Bills being thus depending and the Lords in the Tower not Tryed the Parliament was upon the 10th of January prorogued as the Attorney General above in his Replication hath alledged by reason whereof the Citizens and Inhabitants of the said City being faithful Subjects to the King were much disquieted with the sense and apprehensions of the Danger threatning the Person of the King his Government and Realm by reason of the Conspiracies aforesaid as is by both King and Parliament affirmed and declared and conceiving no better means to prevent than by the Sitting of the Parliament and having received a Petition from divers faithful Subjects Citizens of London to the same effect And it being lawful to Petition the Mayor Sir Patience Ward and the Aldermen and Commons in Common Council assembled for the preservation of the King and his Government did cause to be written the Petition in the Replication mentioned which is set forth in haec verba and did Order that after the same was presented to the King it should be Printed for the satisfaction of the troubled Minds of the said Citizens and traverse the writing or making any other Petition or making this to any other end or intent than they have pleaded THE Attorney General as to the Plea of the Mayor Surrejoynder and Commonalty and Citizens pleaded to the making and publishing the Ordinance about the Markets Protestando That the Mayor and Commonalty and Citizens were not seiz'd of the Markets nor at their charges provided Stalls and Necessaries or Market-places Protestando etiam That the said Rates and Sums were not reasonable For Plea saith That by a Statut made 22 Car. II. it was enacted that Places for Markets should be set out and 2 d. per Chaldron upon Coals for the charge of that and many other things was given and that they received a great Sum out of that Duty for the purpose aforesaid and yet for their own private Lucre took the Mony by the Ordinance And traverseth that the Mayor and Commonalty and Citizens time out of mind habuerunt habere consueverunt Tolneta Ratas sive denariorum summas per ipsos Majorem Communitatem Cives superius supposit per prefatam Legem sive Ordinationem predict ' Assess in certitudinem reduct prout per placitum suum superius rejungendo placitat ' supponitur And to the Plea of the Mayor and Commonalty and Citizens pleaded to the Residue of the Attorney's matter assigned for a Forfeiture as aforesaid The Attorney Protestando That the aforesaid Prorogation of the Parliament was for urgent Causes concerning the good of the Kingdom and thereby the prosecution of publique Justice not interrupted And Demurrs to the said Plea of the Mayor and Commonalty and Citizens by them pleaded as to the Petition Rebutter THE Mayor and Commonalty and Citizens as to the making and publishing the Ordinance for the payment of Monies by those that come to the said Markets say as before That the Mayor and Commonalty and Citizens have time out of mind had and accustomed to have reasonable Tolls Rates or Sums of Mony of all Persons comming to these Markets with Victuals and Provisions there to be sold for Stalls Standings and other Accomodations by them had for exposing their Victuals and Provisions to sale And of this they put themselves upon the Country c. To this Mr. Attorney demurrs And as to the Plea by the Mayor and Commonalty and Citizens pleaded to the Residue of the matter by the Attorney General assigned for Forfeiture they joyn in Demurrer Memorandum That when the Demurrer in this Case was joyn'd viz. Mich. Term. 34 Car. II. Mr. Sergeant Pemberton was Chief Justice of the King-Bench But before Hillary Term that it came to be argued he was removed and made Chief Justice of the Common-Bench and Sir Edmoud Saunders who had been Counsel for the King in drawing and advising the Pleadings was made Chief Justice of the Kings Bench. De Termino Sancti Hillarii Annis RRs Car. II. 34. 35. Annoque Dom. 1682. In Banco Regis die Mercurii 7. Februarii Dominus Rex versus Majorem Communitat ' Cives Civitat ' London THIS Great Case was twice only argued at the Bar First by Mr. Finch the Kings Sollicitor for the King and Sir George Treby Recorder of London for the City And next by Sir Robert Sawyer the Kings Attorney General for the King and Henry Pollexfen for the City Mr. Sollicitor The Questions in this Case as I think will be Mr. Sollicitor I. Whether any Corporation can be Forfeited II. Whether the City of London differ from other Corporations as to point of Forfeiture III. Whether any Act of the Mayor Aldermen and Common Council in Common Council Assembled be so much the Act of the Corporation as can make a Forfeiture IV. Whether the Acts by them done in making the By-Law and receiving Mony by it or in making the Petition and causing it to be Printed and Published be such Acts as if done by the Corporation will make a Forfeiture of the Corporation The First of these Questions truly I should not make any Question at all but that this Case has been a Case of so great expectation every man hath discoursed about it and the prejudice that some have entertained concerning it have drawn them to assert the Negative Proposition Therefore my Lord because this strikes to the whole though I think it hath no Foundation in Law I will beg leave to remove this Objection out of the Case I. First of all No Corporation hath any other Creation than any other Franchises have and subsist upon the same Terms that other Franchises do II. There is a Trust or a Condition in Law that is annexed to and grows upon all Franchises that they be not abused and the Breach of them is a Forfeiture of the very being of the Franchise III. And as there is no Foundation of
that Opinion in Law so the Mischiefs would be great if the Law were otherwise For First That no Corporation hath any other Creation than other Franchises have 't is undoubtedly true that the King is the Original and Commencement of all Franchises they have their beginning from him the Books are clear and full in it I need not quote them though there are many Kelway 138. 17 Ed. 2. 530. in the Reports of those times set forth by Mr. Serjeant Maynard Now my Lord there can be no Corporation but by the Kings Letters Patents for even the Prescription doth suppose there was the Kings Patent to create it at first And therefore the proper Inquiry will be about the Second thing II. How far the Breach of Trust that is annexed to a Franchise is a Forfeiture of that Franchise First of all There is no Rule in Law more certain than that the Mis-user of a Franchise is a Forfeiture of that Franchise This the Statute of 18 Ed. 2. does very well prove which was an Act of Grace to restore Franchises to those that had lost and forfeited them There it was restrained Ita quod libertat ' non sint abusae And my Lord Coke 2 Inst in his Observations upon the Statute of Westm ' 1. That Chapter of it that concerns Towns that exacted more Murage than was granted fol. 223. says They shall lose that Grant for ever says the Mirror of Just which my Lord Coke there quotes that is no more than the Common Law for the Law wills that every Man should lose his Franchise that does misuse it So the Abbot of St. Albans Case 8 Hen. 4.18 The King seized the Franchise into his hand because the Abbot who had the Goal would not give Pledges to make Deliverance and for detaining his Prisoners a long time without making a lawful Deliverance And so 20 Ed. 4. 6. The Abbot of Crowland's Case for detaining Prisoners acquitted after Fees paid the King seized the Goal for ever These two are cited by my Lord Coke 2 Inst 43. And in Sir George Reynel's Case 9 Report Fitzherberts Abridgment Titl ' coron ' placit ' 233. A Layman was taken in a Robbery the Ordinary challenges him as a Clerk whereas he was a Layman It was ruled that for his false challenge the Ordinary should lose his Temporalities to the King and lose his Franchise to challenge Clerks for him and his Successors for ever Thus far is plain That Franchises if misused are forfeited and that though enjoyed by Persons in a corporate capacity as appears by the Cases put And then as a Corporation may forfeit any Franchise they are seized of in right of the Corporation so may a Corporation forfeit the Franchise of the Corporation it self upon the same ground and reason in Law unless any one will say The Franchise of being a Corporation cannot be misused and that would be a very strange matter to assert Every Corporation is entrusted with a Franchise to make Laws for Governing the Subject within its Iurisdiction If that Power be exercised to the Subjects prejudice as it may be it were an hard matter if there were no Law to redress that Grievance Suppose a Corporation under their common Seal should authorise a Rebellion would any Man say that were no forfeiture 'T is said indeed by Pigott 21 Ed. 4. f. 13. Arguendo upon a Case where the Question is Whether a Corporation should avoid a Bond entred into by the Mayor by Duress That a Corporation can neither commit Treason or Felony but upon the same reason that he urges That a Corporation cannot act at all that is abstractedly from all the Members of it for so this Notion is that a Corporation is a Body in consideration of Law only and not reality and therefore the particular Act even of the Head of that Body shall affect him personally only But this is only a Notion of his arguing but it is the best opinion of that Book that Duress to the Members did so affect the Corporation that it should avoid the Bond. Now my Lord a Corporation may be surrendred and surely that that may be surrendred may be forfeited and I shall offer you some Authorities in this case 12 E. 3. rot claus memb 36. A Writ is directed to the Constable of Dover reciting That the Cinque-Ports had seized divers Goods of several Merchant Strangers Portugueses and others and the Writ commands that Right should be done or else the Franchise should be seized into the Kings hands 6 Ed. 2. rot claus No. 5. The Liberties of the City of Bristol were seized and the custody of it granted to _____ for divers contempts and injuries done per Majorem Ballivos Communitat ' to the King and so the close Rolls of R. 2. m. 6. There is another Case that comes further Pasch 9 Ed. 1. Majus rot 25. I find it likewise among my Lord Chief Iustice Hales Collections that he has given to Lincolns-Inn Library I took it out of that Book 'T is in the Collection of the Adjudicata in the time of Ed. 1. fol. 28. a. Thus it was There was the Abbot of St. Austin in Canterbury had made an Agreement with the men of Sandwick about paying ten Hogsheads of Wine yearly to the Abbot and there was due to the Abbot some thirty Marks and he had Iudgment and Execution went out and thus 't is in the Book Vic. de Mandatur quod Levari fac ' 30 Marcas de bonis ipsius ad opus Abbatis pro pretio 10 Doleorum Vini annuatim solvend ' And they made rescue when the Sheriff came to execute the Writ and they were sued for that and the Iudgment of the King and his Council which was by Parliament for it was adjourned into Parliament was Quod Libertas de Sandwick sorisfact ' sit And there is this Observation tho it be written with the same Hand which is not his but the Clerks that transcribed it Judicium illud extendit contra Barones 5 Portuum eorum libertates ut mihi videtur These are the Words of that Book And this will go a great way with the City of London as to their confirmation of Magna Charta for the Cinque Ports are confirmed by Act of Parliament as well as they But my Lord there are many Cases of like nature and that even in the Case of the City of London too as I shall shew you by and by Now tho these are not Iudgments in Quo Warranto's to out a Corporation of a Franchise of being a Corporation yet it shews that these things were forfeitures of all the Franchises of a Corporation for a Seizure is never but where there is matter of forfeiture found upon Record as in Sir George Reynel's Case or to ground a forfeiture upon which to bring a Quo Warranto as in our Case But in the Case of 9 Ed. 1. there it does appear Iudgment was given by the Parliament that the Liberty
replevyed to them the Office of Mayor Usque quindenam Sancti Martini and also recites which Office was seized into the Kings hands by the Iustices of Eyre in the Tower of London and he was willing to continue it longer to them ex gratia speciali he did grant them the said Office Quamdiu c. Then the second part of Pat ' Rolls in 20 E. 2. it is recited that the King had seized the Office of the Mayoralty and had replevied it from time to time and that one Hamond de Chigwell was made Mayor the King had excepted of him for Mayor Et Rex volens eis gratiam uberiorem facere grants him the Office of Mayor Now my Lord these seizures shew plainly that the Franchises of the City were forfeitable for either they were seized upon matter of Record found for a Forfeiture or else upon some matter which was to be a ground of a Forfeiture So then they were absolutely gon and I do not find that these were ever taken out of the Kings hands by Process of Law but were restored by Grace and Favour for till the 20 E. 2. it appears that they so long continued in the Kings hands and he absolutely disposed of them Here is now a Favour to them and a plenary restitution Thus it stood in the Reigns of E. 1. and E. 2. Now the next thing will be for their Act of 1 E. 3. which they back with my Lord Cokes observation upon it that it was Authoritate Parliamenti Now truly my Lord there is no such Act of Parliament that is any where extant For it is not in Print neither are there any Parliament Rolls of E. 3's time till 4 E. 3. And he that cites it my Lord Coke himself cites no Roll at all for it so that where we shall find this Act of Parliament truly I do not know But this Act at best amounts to no more than that for any personal Trespass of Officers the Liberties of the City should not be seized but that signifies nothing for that is not our Case There are Acts of the Corporations not of particular Officers though I cannot but observe how the Law was taken to be at that time before this their pretended Act even for the Offence of private Officers and that appears to be the Law too in the Case of 9 E. 1. which I cited before which was only the Offence of the Mayor of Sandwich who refused to answer for a Trespass and a Rescue was committed and the whole Liberty seized Now this Act of 1 E. 3. be it what it will though they would take it in that sense that no forfeiture should be incurred for the Trespass of an Officer yet I find quite the contrary thereunto and that it hath not prevailed even in that sense For 5 E. 3. rot claus 14. there the King did discharge one from the Office of Mayor and commands the Aldermen and Comminalty to choose another Now this my Lord I take to be not so much a punishing of the Officer as a breaking in upon the Franchise it self But I shall shew more fully in the Reign of R. 2. that this was done Yet I will first take notice of the Statute of R. 2. which is the next thing that they rely upon and this with submission is no Act of Parliament neither for though my Lord Coke in his 4th Inst 205. says this is the Statute mentioned in our Books which supports the Customs in London to devise in Mortmain and other Customs against Acts of Parliament and cites Authorities in the Margent yet my Lord I have looked and can find none of them to speak to the purpose for which they are cited but the Book of 7 H. 6. fol. 1. where the custom of London to devise in Mortmain is in Question and there it was ruled a good custom because of the Statute that confirms it after the Statute of Mortmain but says that Book Quere the Statute to that they were not well apprized of the Statute in those days tho this were the foundation of all the resolutions of that kind It appears by the Roll that it is no Act of Parliament in the nature of it for its 7 R. 2. N. 37. 't is a Prayer of the Commons That there might be a Patent granted to the City confirming their Liberties Licet usi vel abusi fuerint And the Answer was Le Roy le veult but this is no Act of Parliament it is no more than a confirmation of the Letters Paâ—ents which had been primo R. 2. Besides further there never was any Patent granted in pursuance of this Act And yet 't is plain that if it had been to it would only have extended to Forfeitures that were past but could never amount to a Dispensation or License for the future And my Lord this appears by these Authorities and Records that I shall now cite The 1 part of Pat. Rolls 16 R. 2. Membrano 36 37. whereby it fully appears That notwithstanding these pretended Statutes there was no such Priviledg in the City but that for the Offences of their Officers or themselves the Franchise should be seized But my Lord I must a little observe that truly the City have attempted to raise themselves above the fear of any Iudgment in any of the Kings Courts for in primo R. 2. Parl. Roll 126. there they Petition for a Confirmation of their Charter with a Clause of licet non usi vel abusi which was that they then would have to be done in Parliament for them But they do likewise desire in their Petition that notwithstanding any Statute Priviledge Charters Iudgment made or to be made to the contrary their Liberties might be confirmed of this 't is said the King will advise There is in 1 R. 2. Parliament Rolls 121. as pleasant a Petition as the other they there do desire that the interpretation of their Charter may be left to themselves and where it is doubting such meaning as they should put upon it should be allowable But to that the Kings Answer was That he would make the interpretation of his own Charters according as his Counsel should advise So that I observe they would feign have been absolute but they could never do it It hath always been denied them So that from what was done at this time and after 7 R. 2. it does appear plainly that there was no difference between the City of London and any other Corporation only this is really the greatest But as all greatness is the Kings Favour so when men forget their duty in abusing the Kings Favour this great Court is the place to put them in mind of it I come then to the third Question III. Whether the Act of the Mayor Aldermen and Commonalty in Common Council assembled be an Act of the Corporation so as to make a Forfeiture of the whole And with submission my Lord that will be pretty clear too upon these Reasons 1. First
Sum certain and in all grants that ever were of Pickage and Stallage they were never reduced to a certainty and those are things too that relate to a Market And so I take it to be for Keyage Anchorage and the like for when there are Posts or Places for Ships to which they may be fixed the Owner of the Port may have a compensation for that but that must néeds be uncertain according to the circumstances if a Ship be bigger or lesser if a Ship stay a Month or a Day 't is not fit the same rate should be paid nor is it usually granted by particular words Co. Ent ' 535 526. placit ' 4. The King against the City of London for the Water-Bailage and other things They pleaded only a Right in general and do not say what the Particulars were and yet one of the things demanded in the Quo Warranto was as I said the Water-Bailage which sure if any thing ought to be certain that ought In that Case it was good Pleading though I think I could say more against it than this thing that is in the nature of Stallage so that all that Mr. Sollicitor hath built upon that must I think néeds vanish My Lord I do not think but London ought to be and is as much under the obedience and correction of the King as any City but yet I believe in these Cases of their Customs you will give that allowance and indulgence to it that all your Predecessors have done which is greater than they have given to any other Corporations in the Kingdom and that because it was London that there should be such a thing as a Foreign Attachment I think is hardly allowed in other places I am sure I have known it deny'd in some that a Contract in Writing should be equal to a Book Debt that a Feme Merchant should sue or be sued without her Husband or if he be named he should be only named for conformity You take notice that London is a Port-Town and that Men that Trade there sometimes go beyond Seas and in their absence their Wives trade by themselves and perhaps carry on distinct Trades while they are here And so they may do in other places may be but only for the sake of London do you take notice of these things there and not elsewhere their Penalties that are sued for in their Courts a great many of them are such as would not be well maintained in other Courts or in any other place and yet they are maintained there as namely That their Penalties should be sued for before the Mayor and Aldermen when the benefit of them goes to their use and yet that is allowed in the Eighth Report notwithstanding the grand Objection That they are in some sort Iudges and Parties Rolls 2 p. Abr. Tit. Prescription Letter H. fol. 266. No. 2. 3. The City of London may prescribe to have a Court of Chancery in London of matters tryed in the Sheriffs Court though such a Court cannot be granted by the Kings Letters Patents but the Mayor and Citizens of York cannot prescribe for such a Court because it were very dangerous that such petty Corporations should have such Courts And whatsoever is said by my Lord Hobart in his Reports 63. I do affirm there is no Act of Parliament that erects a Court of Chancety in London or the Cinque-Ports if Mr. Sollicitor had strugled with me about the being or not being of that Act of Parliament I would have agréed with him that there was no such sooner than some that he says are none The Customs of London have béen upheld and I must confess I think that is very strange even against the general Words of an Act of Parliament 2 Inst 20. A Goaler in London may permit his Prisoner that is in Execution to go at large with a Battoon in any place within their Iurisdiction and 't is no escape And so is Plowdens Com. 36. A Citizen of London may set up one Retail Trade though he was bred to another notwithstanding of the Stat. 50. of the Quéen And for a General Rule take that that is said in Palmer 542. Those of London may prescribe against a Statute and the reason is because their Liberties are confirmed by Statute and other Towns are not In Rolls Rep. 1 p. 105. Sprike against Tenant my Lord Coke being then Chief Iustice says We take notice of the Customs in our Courts and other Courts in West-minster-Hall and in London Fleetwood Recorder of London says a very strange thing in 1 Leon ' 284. Hollinshead and Kings Case and in 4 Leon ' 182. That the King's Courts ought to take notice that those of London have a Court of Record for if a Quo Warranto issues to the Iustices in Eyre it does not belong to them of London to claim their Liberties for all the Kings Courts have notice of them And truly I have béen enformed I mean by Copies of Records that when the Iustices in Eyre came to the Tower this was a Priviledg allowed to them they were not bound to set forth their Liberties as others were My Lord I think this as 't is pleaded is a Duty very justifiable and very well payable by vertue of this Custom I do agrée as I said a Toll is properly for Goods sold and this is a Custom for the accommodation of those that brought Goods to be sold and 't is like that 1 Leonard 218. my Lord Cobhams Case a Duty paid for the standing in the Cellar and there that is held to be good In Rolls 2 p. of the Abridgment 123. Letter B. Hickman's Case The Lord of a Mannor may prescribe to have the eighth part of a Bushel of Corn in four Bushels that are brought to the Market within the Mannor in the name of the Toll and that is for Stallage only for it is said there whether it be fold or not And in the same Book fol. 265. the City of Dublin set forth that they are owners of the Port of Dublin and that they maintained Perches in the said River to direct the Ships in the déep Channel and that they kept the Key and the Crane and therefore in consideration of that they prescribed and demanded three pence in the Pound for all Merchandizes in the said Port and it was held good Now I agrée Toll-through that can't be prescribed for simply and generally but by Toll-through I mean as you know for passing and re-passing through only and not for staying but yet even that may be prescribed for too in consideration of repairing a great High-way or a very foul way or maintaining a Bridge and the like And therefore if our Considerations here be as good as that we maintaining those great places may prescribe for this duty as for passing through the Streets though it were no Market There is a famous Case reported in Rolls 1 p. fol. 1. 44. And 't is in 2 Bulstrode and also in
a Law-book to back me I remember that my Lord Hobart says That Zeal and Indignation are fervent Passions The City of London had great Indignation against the Papists for this Conspiracy against the King and Kingdom and the Religion established by Law There was no disaffection in the City at this time when this Petition was made sure and I wonder that any man should say that knows London and was acquainted with it then and looks upon this Petition which passed nemine contradicente that they had such an intention as is insinuated And pray let him read the Names of the worthy Aldermen that then sat upon the Bench and the other Names of the Common Council-men then present and then let him say if without Reflection the King have more loyal Subjects in the City of London than these men were And do you think if there had béen in it any Sedition or any of those ill qualities that make up the ill Adverbs which are joyned to it in the Replication not one of all those loyally-dispos'd men would have spoken against it But alas all of it passed nemine contradicente My Lord I say that if the matter of it be justifiable as I think it is then all these words will signifie nothing if there were never so many more of them And the presenting and carrying of it to the King that is no Offence that is not so much as pretended to be one And my Lord I think it a very harsh Translation of the word into Latin when the Petition says That the Parliaments Procéedings or the publick Iustice received an interruption to put that word of Obstructionem in truly I think a better word might have béen found to express the soft expression in the Petition and they néed not have put that hard violent word Obstructionem when to make English of it they translated it Interruption But my Lord they do admit I say That the making and presenting of it to the King is not the Offence so much as the publishing of it by which it is exposed to many others besides Now to excuse that the Answer we give is this and 't is that which will carry a very reasonable ground of Iustification in it Certain Citizens that were private Men had petitioned the Common Council and thereby they were importuned to make known the desires of the City to the King and it was reasonable to make known to those Citizens what the Common Council had done to prevent false Rumours which we knew were rife enough in those days and to shew that there was nothing ill in it we did Print it And 't is also all driving at the Common Interest at the Kings Safety the Preservation of the Church and the Government established All this they did desire might be known to these Citizens and all others that enquired about it and therefore they Printed it to evidence that there was nothing of ill intended in it And I do wonder I must confess that this Objection of the publishing of this Petition should be so much insisted upon for they say That the Mayor Commonalty and Citizens of the City of London did it and say not any thing of the Common Council that they did print it Now they that did vote it knew it without printing and 't is alledged in the Pleadings and confessed by the Demurrer That the Mayor Commonalty and Citizens of London that is the Corporation consists of above 50000 Men which cannot well be intended otherwise Why then here is a Petition that is agréed to be well enough lodged as to the Persons that voted it it being the liberty of the Subject to petition and if this had béen only presented to the King though it had béen by those 50000 men nay if it had béen by 10000 men who had béen the Corporation It had béen well enough so it had not béen printed but only kept private to themselves Why then 't is very strange that what is known to all London so great a part of the Kingdom should be lawful but it should be heinously unlawful to send the news of it further It went further than the City of London and therefore 't is such an Offence as shall be a Forfeiture of the Corporation My Lord there is the Case of Lake and King the Petition to the Parliament was scandalous in it self yet it stood protected being presented to the Parliament and it was lawful to print it provided it were delivered to a Committée of Parliament or only to those that were Members though 't is said there that the printing of it is a great publishing for the Composers Correctors and other Persons that are concerned in the Press read every Letter of it But it was answered That Printing is but a more expeditious way of Writing and if he had employed 20 Clerks it had béen a greater publishing than thrée or four Printers Possibly the Printers might not read it or not be able to read it well or not all of them read it at that time Now here my Lord Sure it was lawful to acquaint the Citizens what they had done if you take it to be the Act of the Common Council and the Common Council to be the Representative of the City It was always agreed by the House of Commons that any Member might send the Votes to those that sent them thither and whom they represented they have blamed indeed men for sending the debates but never for communicating the Votes And what they may do by Writing that they may do by Printing Why then might not the Citizens of London who by Custom choose those Common Council men well desire to know and might well know what they had done and then what they might do by Writing they might by Printing for that is but another way though a more suitable and compendious way of exhibiting any thing that you would have go to many And if it be lawful to impart it to all the City and all the City does know it though it does go further 't is no matter for what is known to London may very well be known to all the Nation besides without Offence if it did go further Besides it shall never be intended it was published further or that any others knew of it for 't is said to be published in the Parish of St. Michael Bassishaw in the Ward of Bassishaw and that is in London to the Citizens of London and so they only talked of it amongst themselves Besides the main thing I go upon which is if there be no ill in the thing it self the ea intentione can make no crime by a bare affirmation which we deny and if it might be well said or done it is lawful to Print it and the Publication is no Offence neither My Lord The next point I come to is this That a Corporation cannot possibly commit a Capital Crime or any other Crime against the Peace And I shall offer this Dilemma Either it
9. 21 E. 4. 13. Co. 10 Rep. Sutton's Hospital Case That Corporations have béen Dissolv'd 1 Inst 13. 2 Inst 431 432. Co. 3 Rep. Dean and Chapt. de Norwich's Case That Corporations may be surrendred is plain from the Cases of Heyward and Fulcher Jones Palm 506. That the Causes for which Franchises may be seized are the same for which they are forfeit as for Non-user or Abuser And therefore Forfeiture and Seizure alike For Contempt of the King the Court may seize the Liberties of a Town 2 E. 4. 5. Case de Bayliffs de Reading 15 E. 4. 6. Seizure of Liberties for not Appearance and if not replevyed the same Eyre they are forfeit This shews that the same default that gives Seizure gives Forfeiture A Seizure by award of a Court before Iudgment is but quousque and the Court may restore but a Seizure after Iudgment is final and the Court then cannot grant Restitution 5 E. 4. 7. Where the Liberty is usurp'd and gain'd by Tort there the Iudgment must be an Ouster But otherwise where the Liberty was once of right but forfeited by Abuser there the King shall have it Case de New Malton Iudgment there was only a Seizure Case de Cusack Iudgment fuit penitus excludatur because usurp'd and no title By the Seizure the King is in the possession Sir G. Reynel's Case Co. Rep. And the Corporation cannot act during such Seizure for they have not their Mayor or Officers by which they can act and that is the reason they Petition to be restored in E. 1. ad pristinum Statum Rolls Abridgment Prerog 204. 2 E. 4. 27. 1 Institutes 253. 15 H. 3. Rot. Cl. Memb. 2. Village of Hereford seized into the Kings hands quousque c. By the Seizure the Corporation est Civiliter mortua and cannot act Corporations are instituted for a particular end viz. For good Government and Order They are as an Office erected and the Actors Officers to that purpose All Offices have a Condition in Law incident to them to be forfeited for abuser or mal-user Co. Rep. 8. 44. Co. Rep. 9. Earl of Shrewsburies Case And by the same Law Corporations forfeit for mal-user or abuser No difference betwixt Corporations aggregate or sole and the one forfeit for the same mis-user or abuser as the other And as to the Mischiefs that will ensue if the Law otherwise It is no answer That the persons offending may be punished in their private Capacity For if they still remain a Corporation they may Assemble Consult raise Mony and Men to the hazard and danger of the King and his Government and still continue a form'd Body too much thereby advantaged to serve such purpose Presidents and Cases of Forfeiture Case of Sandwich Pasch 3. E. 1. Rot. 55. upon an Information the Iudgment was Consideratum fuit per Dominum Regem Consilium Domini Regis in Parliamento quod Majoritas Libertas de Sandwich capiatur in Manus Regis Villa de Cambridge Inst 4. 428. M. 8 R. 2. Plea to the Iurisdiction rejected and Iudgment that their Liberties shall be seized Ryly placita Parliamenti 277. Iudgment that the Liberties of Winchester shall be seized quousque and restored again Mich. 18 E. 3. Rot. 162. in B. R. Iudgment against Ipswich that the Custody thereof shall be seized 2 Rolls Prerog 204. divers Seizures 1 Crook 252. it is there cited that the Liberties of the Town of Norwich were seized 27 H. 6. for not suppressing a riotous Assembly there F. Avowry 129. Iter of Lancaster Quo Warranto against Northampton Iudgment of Seizure quousque c. for mis-pleading 2 H. 7. fol. 11. Mich. 15 Car. 1. B. R. Quo Warranto against the Town of Berkhamsted but no Iudgment entred Usual Proceedings in Eyre to Seize Fine and Restore Rast Entries 540. Seizure of a Leet for not having a Tumbrell And all the several Cases and the very Acts cited that prove Seizures of a Corporation prove also that they may forfeit V. That the Acts of the Common Council are the Acts of the Corporation Corporations have by their Charters Prescription or Custom Common Councils to assemble advise and consent they are as Delegates for the rest of the Body they are the Active Corporation they make By-laws and dispose of the Lands and Concerns of the Corporation in them the Corporation acts 9 H. 6. 3. 5 H. 7. 26. 48 E. 3. 17. 1 Cr. 540. Warren's Case Rolls 2 A br 456. Tit. Restitution Obiect That the Stat. 1 E. 3. insisted on by the other side whereby they would have it that the Liberties of the City should not be seized for any the Miscarriage of the Officers Resp In answere to this Objection I. It is no Statute but only a Charter and that Charter not granted to the Mayor Aldermen and Commonalty but only Civibus London II. That it extends not to this Case for by the words Officers and Ministers the Mayor Sheriffs and Aldermen being ordinary Officers of the City by whom the Kings Writs and Precepts are executed are the Persons intended But this extends not to the Mayor Aldermen and Common Council which are the visible and active Corporation Stat. 38. E. 3. c. 10. explaineth this to be so for that is express Mayor Aldermen and Sheriffs and that the Liberties of the City shall not be seized for their miscarriage till their third Default But the Stat. 1 H. 4. c. 15. repeals the former Stat. of 28 E. 3. also the Stat. 1 E. 3. if it were any puts the City of London into the same condition with other Cities VI. That the Facts and Crimes charged in the Replication are Forfeitures They are Offences of a high Nature To oppress the Subject by raising Mony for their own private Gain is quite contrary to the ends of their being a Corporation which is the good Government and Preservation of the Subject but to make use of this Power to oppress and raise Mony for private benefit is a great Abuse of their Authority and Franchase And they cannot excuse themselves as for a Toll For Toll cannot be claimed except it be a Sum certain it must be some little petit Sum claimed for Toll These Sums are too great and unreasonable to be claimed for Toll The Statute of H. 7. that gives a Forfeiture of 40 l. for using an unlawful By-law did not alter the Law that was before It gives a new and further Penalty but takes not away the old And as to the Custom alledged for assertaining Tolls Duties or Sums reasonable to be paid such Custom is unreasonable for the Vncertainty and the Nature of it VI. The Petition is malicious and apparently Seditious stiring up the People to a drinke of the King and his Government Stat 3 E. 6. c. 1. provides against derogating from or depraving the Book of Common Prayer 1 Cr. 223. Sir William Marsham versus Budges against Standalizing a Iustice of Peace Much more is it to deprave Libel
any Forfeiture Seisure of their Liberties or putting Officers upon them is quite another thing as I shall shew presently So that these general Sayings in Law-Books that Misuser of a Franchise forfeits the Franchise neither in Law or Reason extends to the being of a Body Politick or Corporation but is applicable only to particular Franchises of other natures and the other reason that that which is grantable is forfeitable is as fallacious as before appears 3. For the Records cited to prove that the Corporation or Body Politick may be Forfeited I will state those that are most Effective and doe them right therein Johannes Dennis Mayor of Sandwich P. 9. E. 1. and thrée more were attached to answer Domino Regi de placito transgr ' unde Robertus de Stokho Sheriff of Kent qui sequitur pro ipso Rege complains that he had sent his Bailiffs naming them to make Execution of the King 's Writ in Villa de Stanore qui est Barona domini Regis and that the Defendants with Swords drawn took away the King 's Writ and trod it under their feet and would not suffer it to be executed unde dicit quod deterioratus est damnum habet ad valentiam 2000 Marks The Mayor appears and pleads to the Iurisdiction that he ought not to answer this matter except in the Court of Shipway The Sheriff replies That Stanore is the King's Barony belonging to the Barony of St. Austins and relyes upon a Record before Iustices in Eire where an Amerciament upon that Vill ' was formerly set The Mayor refuseth to plead over Then a day is given over Then 't is entred thus Posteaque coram Domino Rege ejus Consil ' Quia Barones del ' Cinque Ports nec aliqui alii in Regno nostro possint clamare talem libertatem quod non responderent Domino Regi de contemptu sibi fact ' ubi Dominus Rex eas adjornare voluerit Et quia predict ' Barones non protulerunt aliquas Chartas a Regibus concessis in quibus non fuit excepta Regia Dignitas consideratum est quod respondeant quia le Defendants would not answer any other where than in Shipway consideratum est quod habeantur in defensionem pro convictis de predict ' Transgr ' Contempt ' Et quia the said John Dennis is convicted of the said Offence and the fact of the Mayor in those things which touch the Commonalty is the fact of the Commonalty consideratum est quod Communitas de Sandwich amittat Libertatem suam c. Then follows Postea in presentia of the Bishop of Bath and Wells then Chancellour and others cum Assensu Regis an Agreement betwixt the Abbat of St. Austins the men of Stannore and Sandwich de omnibus contentionibus And then goes a long Agreement betwixt the Abbat and the Men of Sandwich and Stannore concerning their Iurisdictions and Courts Et si aliqua pars contra concordantiam illam ire vel facere alia pars habeat suam recuperare per breve Domini Regis de Judicio exeunte de isto Recordo Et pro hac predict ' homines vadiant predict ' Abbati 100 Marks which the Abbat remits for 10 doliis Vini pretii 30 Marks to be paid at the Feast of St. John the Baptist This is the Record at large and for the Extract in the Collections at Lincoln's Inn whether it be of this Record or any Execution that went out upon it non constat But that I think it could not be upon this Record for the Record is not 30 Marks annuatim as the Abstract is and the Entry of the videtur at the conclusion quod Judicium extendit contra Barones Quinque Portuum eorum Libertates ut mihi videtur that is not my Lord Hales his Note nor doth it appear whose it was Out of this Record how can a man infer that a Corporation shall be forfeit for the Miscarriage of the Mayor or Officer how doth it appear from hence that they should lose or forfeit their being a Corporation By amittat Libertatem all that is meant thereby is their Liberty in Stannore or the Liberty they claimed to be impleaded in the Court of Shipway and the Note in the Extract videtur quod Judicium extendit versus Barones must be I think taken to be as to their Liberty in Stannore or to be sued only in the Court of Shipway I have taken the more notice of this Record because it hath countenance of a judicial Proceeding but as to all the other Records cited A Writ to the Sheriff of Gloucester reciting That the King 6 E. 2. r. Clau. Membr 5. for injuries and contempts done by the Mayor and Commonalty of Bristol the Liberty of that Vill ' by Bartholomew de Baddlesmere Custos of that Vill ' into his hands had seized The Writ commands the Sheriff that the Custos should have the Execution of Writs as the Mayor and Bailiffs used to have And the times of Henry the Third Edward the First Edward the Second and Richard the Second there were frequent Seisures of the Office of Mayor and the Kings did put in a Custos in the place of Mayor or made a Mayor and these are called Seizures of Liberties King Henry the Third put in a Custos over London 49 H. 3. which continued till the 54th of his Reign and then taken off and the City restored to its Election Edward the First put in a Custos 15 E. 1. and continued so to doe till the 25th Year of his Reign and then taken off The 14th of Edward the Second a Seisure of the Office of Mayor by Henry de Staunton and his Fellows Iustices in Eire in the Tower and Mayors put in by the King till the 20th of Edward the Second and then restored But for that of Richard the Second give me leave to digress and give you the state of it out of the City Registers which are more full than these cited A Writ from the King to the Mayor Sheriffs 16 R. 2. July 22. Lib. H. fol. 269. b City Reg. and Aldermen commanding them to come with twenty four principal Citizens before the King and his Council at Nottingham in crastino Sancti Johannis Baptist ' tunc prox ' sut ' and to bring sufficient authority from the Commonalty to answer such things as should be objected They appeared and had a Letter of Attorney ubi pro diversis defectionibus in Commissione suo sub communi Sigillo aliis de causis the Mayor and Sheriffs were discharged of their Offices and committed diversis Prisonis and afterwards the first of July Sir Edward Dallingrigg made Custos by the King came to the Guildhall and his Commission being read he was sworn before the Aldermen secundum quod Majores ante jurare solebant the King also made the Sheriffs and they were also sworn This is also entred in the City Register Lib.
Persons but their Masters or those that deputed or delegated them for another purpose they are innocent they shall not suffer by it though no Acts of Parliament had been in the Case If the Acts of Parliament against Seising the Liberties of the City for or by reason of any miscarriage of their Officers or Ministers extend to these Acts of the Mayor Aldermen and Common Council If so be that these Acts were the Acts of the Corporation Yet with Submission if they have shewn a good and legal Right by their Custom and Title to make By-Laws for regulating and settling the Markets and Tolls and that which they have done be as pleaded reasonable and that there was reasonable Ground at that time for their Petition which they have set forth If all these particulars that I have now summ'd up be against me then Iudgment must be against me though I know not what that Iudgment can be But if any one of these particulars thus repeated be for me and against Mr. Attorney then Mr. Attorney can have no Iudgment against the City But Iudgment must be for them Which I humbly pray The next Term viz. Trin. 35 C. 2. Ch. Iust Saunders dying the day of the Iudgment given or the next day after Mr. Iust Jones Iust Raymond and Iust Withens being in Court Iust Jones pronounced the Iudgment of the Court and Iust Raymond and Iust Withens affirmed that Ch. Iust Saunders was of the same Opinion with them and that they all agreed 1. That a Corporation aggregate might be seised That the Stat. 28 E. 3. c. 10. is express that the Franchises and Liberties of the City upon such Defaults shall be taken into the King's hands And that Bodies Politick may offend and be pardoned appears by the general Article of Pardon 12 C. 2. whereby Corporations are pardoned all Crimes and Offences And the Act for regulating Corporations 13 C. 2. which provides that no Corporation shall be avoided for any thing by them mis-done or omitted to be done shews also that their Charters may be avoided for things by them mis-done or omitted to be done 2. That exacting and taking Money by the pretended By-Law was Extortion and a Forfeiture of the Franchise of being a Corporation 3. That the Petition was scandalous and libellous and the making and publishing it a Forfeiture 4. That the Act of the Common Council was the Act of the Corporation 5. That the Matter set forth in the Record did not excuse or avoid those Forfeitures set forth in the Replication 6. That the Information was well founded And Gave Iudgment that the Franchise should be seised into the King's hands but the Entry thereof respited till the King's Pleasure was known in it Iust Raymond and Iust Withens declare that they were of the same Opinions in omnibus And accordingly after Entry made by Mr. Attorney That as to the Issue joined to be tried by the Countrey As to the claiming to have and constitute Sheriffs As to the having the Mayor and Aldermen to be Iustices of the Peace and to hold Sessions quod ipse pro Domino Rege ulterius non vult prosequi Iudgment is entred Ideo consideratum est quod prefat ' Major Communitas ac Cives Civitat ' Lond ' as to the Issue aforesaid betwixt our Lord the King and them joined and as to the Liberties and Franchises aforesaid by them claimed to have and elect Sheriffs and to have their Mayor and Aldermen to be Iustices of the Peace and hold Sessions Eant-inde sine die salvo jure Dom. Regis si al' c. Et quoad dictas separales materias in lege unde tam pred' Att ' Gen ' quam pred' Major Communitas Cives Civitat ' pred' posuerunt se in Judicium Curiae the Court advise till Trinity Term and then pro eo quod videtur Curiae hic quod prefat ' Major Communitas ac Cives Civitat ' pred' forisfecerunt Domino Regi nunc Libertat ' Privileg ' Franches pred' ob causas in Replicacon ' prefat ' Attorn ' Gen ' superius specificat ' quod Placita prefat ' Major ' Communitat ' ac Civium Civitat ' pred' superius rejungendo repellando in ea parte placitat ' materiaque in iisd ' content ' minus sufficien ' invalid ' in lege existunt ad precludend ' dict' Dom ' Reg ' a Forisfactura pred' aut ad Major ' Communitat ' ac Cives Civitat ' pred' ad clamand ' Libertat ' Privileg ' Franches pred' sibi allocand ' adjudicand ' manutenend ' maturaque deliberacione superinde prius habit ' Considerat ' est qd ' Libertat ' Privileg ' Franches pred' sore de seipsis unum Corpus corporat ' Politic ' in re facto nomine per nomen Majoris Communitatis Civium Civitat ' Lond ' ac per idem nomen placitare implacitari respondere responderi per eosd ' Majorem Communitatem ac Cives Civitat ' London pred' superius clamat ' capiantur seisiantur in manus Domini Regis quod prefat ' Major Communitas ac Cives Civitat ' Lond ' pred' capiantur ad satisfaciend ' dict' Dom ' Reg ' de Fine suo pro Usurpatione Libertat ' Privileg ' Franches predict ' Postscript THE Question concerning the Surrender of Corporations or Bodies Politick not being directly in the Case but in the Arguments on both sides insisted on it may not be unnecessary to state that Point and collect what hath been in the Debates or Arguments alleadged on either side that the easier View and Iudgment may be made of it By Surrender in this Question is by both sides meant and intended some Deed or Instrument in writing whereby a Body Corporate or Politick can surrender and dissolve it self It is agreed that a Body Politick may be dissolved either by the Death of the Persons incorporate or their Refuser to act nominate or elect Officers or Ministers so as there remain not sufficient authorized or enabled by their Charter or Constitution to preserve their Being This is admitted to be a Cesser or Dissolution of the Corporation and such a sort of yielding up or Surrender is admitted possible But whether by any Deed or Instrument in Writing it can be done that is the Question intended For the Surrender It hath been alleadged 1. That the Being of a Body Politick is a Liberty Privilege and Franchise that had its Commencement by the King's Charter or by Prescription which supposes a Charter and if it have its beginning and Creation by Charter which is the Kings Deed that grants it by Deed again it may be regranted and surrendered And 't is a Maxim in Law Unumquodque dissolvi potest eod ' modo quo ligatur And instances in Fairs Markets Leets and such like Franchises granted by Charter which say they may be surrendered by Deed or
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
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