6. Fol. 47. a. Inst Part 2. Fol. 570. The next thing which falls into Consideration is How far the Acts of the Common Council shall bind the Corporation 1. The Acts of the Common Council shall bind the Corporation for that Court hath some Resemblance of the High Court of Parliament for it consisteth of two Houses the one of the Mayor and Aldermen the other of such as be of the Commons Assembly Representing the Commonalty of London In this Court they may make Constitutions and Laws for Government of Trade and Traffick for the better Execution of the Laws and Statutes of the Nation or pro bono Publico and for the good Government of the City so those Constitutions and Laws be not contrary to the Laws and Statutes of the Nation And being made by the Mayor Aldermen and Commonalty do bind within the City of London and the Liberties thereof Inst Part 4. Fol. 249. Lib. 5.62 63. the Chamberlain's Case Lib. 8.173 the Case of the City of London 14 H. 8. It 's said that the Dean and major part of the Chapter make the Corporation and their Act is the Act of the Corporation although the others do not agree to it 14 H. 8. Fol. 9. So in the 21 E. 4.27.70 b. it 's said ubi major pars ibi tota 9. H. 6.32 If the Major part of the Corporation doth Imprison the Minor part until they consent to do an Act although they do not consent yet the Act done by the Major part shall bind all and its the Act of the Corporation 15 E. 4. Fol. 2. And with this agrees Panormitan C. cum in cunctis where it 's said Quod authoritas protestas Capituli consislit in majori parte ejus sic totum Capitulum facere dicitur quod major pars facit Davyes Rep. Fol. 48. Therefore I agree that if the Minor part of a Corporation accept of a New Charter it shall not bind the Corporation T. 13. Jac. Baggs Case Rolls Rep. Part 1. Fol. 224. Yet in some Cases the Act of one or of some few of the Corporation will bind the rest Did not the Corporation of Sandwich for the Misdemeanour of John Dennis the then Mayor thereof in a high Measure suffer and being thereof Convicted was not the Judgment thereupon Quod Communitas amittat libertatem The Command of the Mayor only to the Bayliff of the Corporation to enter into certain Lands for the Corporation though it be without Deed shall be good and bind the Corporation 16 H. 7.2 A Sum of 100 l. per Annum was due to the Mayor and Commonalty of Southampton out of the Customs of the King an Acquittance by the Mayor alone because he was the Head of the Corporation was allowed by the Justices and for that there were shewn many Prsidents of Acquittances by the Mayor made in times past 2 R. 3. Fol. 7. An Action of Debt was brought against the Provost and Scholars of a Colledge in C. for that T. M. their late Provost and Predecessor of the Def. and the Scholars by F. their Servant bought certain Goods to the value of 10 l. which came to the use of the Colledge By the Justices it was agreed that the Contract was good and shall be intended the Contract of the Provost only and the Name of Scholars is but surplusage for the Contract of the Provost and for that it came to the Use of the Colledge is sufficient 5 E. 4.7 Brok. Corporation n. 53. A Writ of Covenant was brought by the Mayor and Commonalty d' H. against the Mayor and Commonalty of D. and declared that the Defendants by their Deed Covenanted that the Plantiâ—es should be Free of Murage Pontage Customs and Toll in D. of all those of H. and that they have unjustly taken Toll by certain of their Burgesses of certain of the Burgesses of H. c. adjudged that the Prisal and taking by their common Minister is a taking of the whole Corporation for it cannot reasonably be intended that the whole Community could meet together to take Toll and therefore it was adjudged a breach of the Covenant there is no mention made that he was their Minister by Specialty Sub communi sigillo Corporationis 48 E. 3. Ful. 17. I do agree that where there are Garden and Chaplin Mayor and Commonalty Dean and Chapter or the like the Garden Mayor or Dean solely cannot make a Lease nor discontinue for it ought to be by the whole Corporation and by Deed 21 E. 4.70 But if the King makes a Corporation consisting of Twelve Men to continue for ever in Succession when any of them dye that the rest may chose others in their place if three or four of them dye yet all Acts done by them shall be valid in Law Rolls Abridgment Part 2. Fol. 514. By which it doth appear by what Acts a Corporation is bound but when those things are acted and done in the Common Council of the said City being a Court of Record and which is Representative of all the Free Men and Citizens of the City of London they must in a more eminent degree bind the Corporation We shall Observe 4. What those Acts were 1. The said Mayor and Commonalty and Citizens of the said City of London have assumed an unlawful and unjust Power and Authority to Levy Money of the Subjects of our Lord the King to the proper Use of the said Mayor and Commonalty and Citizens assumed by colour of the Laws or Ordinances by them in Fact Ordained without any other Right Title or Authority and in particular in their Common Council Assembled they did make and publish a certain Law by them in Fact Enacted for Levying several Sums of Money of all His Majesties Subjects and Liege People as well Free as not Free men of the said City and of other Foreigners at the Publick Markets held within the City aforesaid coming thither to Sell their Victuals and Provisions 2. That the said Mayor and Commonalty and Citizens of the said City in their Common Council Assembled without any Legal Authority did assume upon themselves to Censure and Judge our said Lord the King and the Prorogation of the Parliament and then and there being so Assembled in their Common Council did Vote and Ordain that a certain Petition under the Name of the Mayor Aldermen and Commons of the City of London in the Common Council Assembled should be exhibited to our said Lord the King in which Petition there was contained that by the said Prorogation of the Parliament the Prosecution of the Publick Justice of this Kingdom and the making necessary Provision for His Majesties Protestant Subjects was obstructed And they did Order the Imprinting of the same and caused the same to be Published and dispersed We shall enquire whether these Laws and Ordinances made by the Mayor and Commonalty and Citizens of London be Warrantable by Law or not I do agree that they have Power to make Laws and Constitutions
1. c. 31. The Duke of Norfolk had the Office of Marischal of the Kings Bench he made a Deputy who permitted the Prisoners to escape adjudged that it was a Forfeiture of the Office But if the Duke had made a Grant for Life to J.S. and he had permitted the Prisoners to escape this had been no Forfeiture but for the Life of J. S. For in the Case of the Deputy the Duke did remain Marischal and so Respondeat Superior but in the other Case J.S. was Marischal for his Life and so shall Forfeit only his own Interest 39 H. 6.33 34. Where an Office is granted to a Man and he mis-use or do not his Office this is a cause of Forfeiture of it Ibid. When the Lord of a Franchise refuse to do a thing according to the Grant of the Franchise or doth a thing against his Franchise or mis-use his Franchise by himself or Deputy or non-use his Franchise in all these Cases the Franchise shall be seized For when the King grants a Franchise there is a Condition in Law that he should do Right to all Parties concerned if not the Franchise shall be seized 20 E. 4. Fol. 5 6. When one Franchise is incident to another of Common Right then the Forfeiture of the one is the Forfeiture of the other as the Abuser of the Court of Pye Powders may cause the Forfeiture of the Fair. So when the Franchises are one of them Subordinate to another but otherwise when they are Absolute or by several Titles or Patents H. 17. Jac. B R. If one hath a Fair or Market for one day and he keep it another day as when a Grant or Prescription be for Wednesday and he keep it on Thursday it 's a cause of Forfeiture So when a Fair or Market is Granted to one for one day in the Week and he keep it two days but in the last Case the Forfeiture shall be only of that he hath Usurped Cok. Lib. 9. Fol. 50.22 Ass 34. Old n. b. Fol. 157. If a Man keeps a Fair or Market two days and being Questioned by the King for it and claims both days by the Kings Grant and it 's afterwards found that he hath Right but to one day by Prescription and to another by Patent and the first is found against him this will be no Forfeiture of the last Lib. 9. Fol. 50. In some Cases for the Abuser of a Franchise one shall be Fined only and not Forfelt his Franchise So for the Usurping of a Franchise where none is or of more than is due but to take less than is due is no cause of Forfeiture Broke Tit. Forfeiture n. 37. 14 H. 3. The Arch-Bishop of Dublin was Fined Three Hundred Marks for that he did dis-forest a Forest of the Church 2 H. 4.3 Lib. 11. Lyfords Case By an Ancient Record in the Time of William the Conquerour it doth appear that the end of Erecting of Corporations and making and establishing of Cities and Towns Corporate was 1. Ad Consuetudines Regni jus commune dignitates Coronae Conservand for the conservation of the Dignities and Preheminencies of the Crown and the Laws of the Land 2. Ad tuitionem gentium Populorum Regni for Defence of the Kings Subjects and for keeping the Kings Peace in time of sudden Uproars 3. Ad defensionem Regni for Defence of the Realm against outward and inward Hostility If a Corporation may be Forfeited A Corporation may be Forfeited Corporations are called Liberties Franchises as it doth appear by the Writ of Non omittas propter aliquam libertatem Regist 82. f. n.b. 74. a. and by that Name have been ousted By the Surrender of all Franchises and Liberties a Corporation is gone Cokes Entries Fol. 527. Palm Rep. Fol. 493. Cives London petunt quod Rex vetit its concedere prestinum statum scilicet Majororem antiquas libertates Rex non habet inde Consihum quia sunt in bono statu ut sibi videtur hac vice statum non mutabit Inter les Petitions de Parliament 18 E. 3.1 The Citizens of London Petition the King that he would be pleased to grant to them their former state that is to say their Mayor and Ancient Liberties The King gave them this Answer That he was not Advised to it because they were in a good state and condition as it seemed to him at pro hac vice he would not alter or change The City of Norwich and the Liberties thereof seized into the Kings Hands for Burning of the Cathedral Church there but afterwards upon their Petition and Paying a great Fine their Liberties were restored to them 13 E. 1. Rot. Fin. m. 10. Quia Homines de Southampton verberaverunt vulneraverunt usque ad morrem Gilb. Canon qui exequahatur praeceptum Regis in dicta villa pro transgressione villae Capta fuit villa ista in manum Regis finem fecerunt firmam suam exaltaverunt ad 20 l. per Annum Rolls Abridgm Part 2. Tit. Prerog Fol. 204. Because the Men of Southampton did beat and Wound even to Death Gilb. Canon who did Execute the Mandate of the King in that Town for the Offence and Transgression of the said Town the said Town was seized into the Kings Hands and they paid a Fine and their Fee-Farm Rent was advanced to 20 l. per Annum Mandatum est Guilielmo de Haverhall The saurario Regis quod Civitas London Capiatur in manum Regis eo quod Cives ejusdem Civitatis non tenuerunt Hutesium clamorem Secundum Legem consuetudinem Regni Teste Rege apud Wondestock 22 die Angusti Rot. Claus 30. H. 3. m. 5. Inst Part 3. Fol. 118. William de Haverhall Treasurer of the King is Commanded that the City of London be seized into the Kings Hands for that the Citizens of the said City did not make Hue and Cry according to the Law and Custom of the Kingdom 29 E. 3. the Liberties of the City of Oxford seized for a Riot and part of them granted to the University which they do enjoy to this day Rot. Claus 29 E. 3. m. 9. And in the 32 H. 3. the Liberties of the City of Oxford were seized into the Kings Hands 32 H. 3. m. 18. The Liberties of the Mayor Bayliffs and Commonalty of Cambridge were seized into the Kings Hands for that in the late Tumults and Uproars there they and other mis-doers did break up the Treasury of the University of Cambridge and thereout take and burned sundry the Charters c. of the said University and for that they compelled the Chancellor and Scholars of the said University under their Common Seal to release to the said Mayor and Burgesses all manner of Liberties and also all Actions Real and Personal and further to be bound to them in great Sums of money And the King did grant unto the Chancellor and Scholars aforesaid within the said Town of Cambridge and Suburbs of the same divers
all of the Family Kindred and Society to revenge and tends to Quarrels Verba movent litem lis vulnera vulnera Mortem against a Subordinate Magistrate it 's a greater offence because it scandalizes the Government for Injuria crescit decrescit secundum dignitatem personae But against the King who is the Supream Head of the Common-wealth Pater Patriae it 's a Crime of the first Magnitude And how fatal and pernicious the publishing of Scandals and Libels have been to the Kings of England and to their good Subjects this Nation is very sensible 7 E. 1. the King sent Commissions to all the Counties of England to enquire de Spersoribus Rumorum and 25 E. 1. Declaratio Regis missa fuit ad omnes Comitatus Angliae de Rege purgando de certis rumoribus iniquis contra ipsum ortis c. Rot. Parl. 7 E. 1. M. 13. Rot. Patent 25 E. 1. pars 2. M. 7. A Declaration of the King was sent to all the Counties of England to purge him of certain false and unjust Rumours and Scandals raised against him Rex mandavit Majori Vicecomit London Quod facta inquisitione de sparsoribus rumorum Seditionem in Civitate ipsas caperent in Prisona de Newgate detinerent 20 E. 3. pars 1. M. 18. 26. The King Commands the Major and Sheriffs of London that they make diligent inquisition of the spreaders of False Reports and Sedition in the City and that they should seize upon them and keep them in the prison of Newgate As for the Petition imprinted and published by the Major Aldermen and Citizens I hope it was acted by many of them out of a principle of Piety and Loyalty but must needs be looked upon as an action of no great discretion in them to say no worse for to make such ill reflections upon his Majesty when the King by his Oath is bound to do Justice and Nulli Negavimus is one of his Royal Attributes Ob. But it hath been said That no acts bind beyond the Corporation but such as are done under their common Seal therefore they cannot present a Clerk to a Living but by Deed sub Communi Sigillo 13 H. 8 12. nor make a Surrender 33 H. 6.17 34 H. 6.21 nor assign Auditors 4 H. 7.17 7 H. 7.9 Et hujusmodi so their Laws and Constitutions made in their Common Council do not bind because they are not under their Common Seal Answ Excellent Logick he must be a rare Chymist that can Extract such a Consequence from the Premisses The Common Council of the City is a Parliament of the City the Mayor is the King the Aldermen the Peers the Commonalty the Commons and what they there Enact and Ordain is upon Record Jones Rep. Fol. 540. Therefore those Constitutions and Ordinances by them there made being Enacted in a Court of Record if not Warrantable make the more against them and what is then by them Enacted is of greater Force and Puissance than if it had been under their Common Seal If they appoint an Attorney at Law or Bayliff in their Common Council they may justifie any Act which doth belong to their Office Sans monstrans de fait c. for it 's to the Use of the Corporation 12 H. 7.25 26. They certifie their New Mayor Yearly in the Exchequer because it 's entred on Record 13 H. 8.22 vide lib. 10. l' Guardians 8. S. Saviours Case 14 H. 8.29 12 E. 4.9 10. IV. If the Mayor Commonalty and Citizens have done any Act in their Common Council whereby to Forfeit their Corporation and Franchises Where a Franchise is absolute and entire and hath no dependence on another Franchise then if any incident to it be Forfeited the whole Franchise is Forfeited 22 Ass 34. Palmers Rep. Fol. 82. en l' Case d' Corporation d' Maydenhead But the Corporation of London is a Franchise Court d' Entries Fol. 527. Palmers Rep. Fol. 82. absolute and entire and hath no dependance on another Franchise therefore the Forfeiture of any incident to the Corporation of London is a Forfeiture of the Corporation To make Laws and Ordinances for the well Government of the Corporation is incident to every Corporation Hob. Rep. Fol. 211. But the Corporation of London hath abused and mis-used this Power therefore they have Forfeited their Power to make Laws and Ordinances which is incident to their Corporation therefore they have Forfeited their Corporation the abuse of the Court of Pye-Powders being incident to a Fair is a Forfeiture of the Fair 7 H. 4.44 otherwise of Toll because it 's not incident to the Fair or Market Palmer Ibid. Object There is a Stat. 7 R. 2. That the Citizens of London shall enjoy all their whole Liberties whatsoever with this clause Licet usi non fuerint vel abusi fuerint and notwithstanding any Statute to the contrary 7 R. 2. n. 37. Answ This is no Act of Parliament but an Act of Grace of the King in Parliament For no assent of the Lords c. do appear but only per dominum Regenâ— Consilium suum which must be intended his Privy Council if it had been otherwise then Consilio Comitum Baronum c. as 35 E. 1. apud Carlioten Stat. de Asportatis Religiosorum c. â—ut admitting it to be an Act of Parliament it doth only extend to 〈◊〉 Offences and Crimes which they had committed or omitted and not 〈◊〉 â—â—ose that shall be committed or omitted by them de futuro If otherwise it would have been against all Reason and Justice and by consequence void and that it must be so read the Kings Answer to the Petition of the Commons at large Jones Rep. Fol. 241. And if we look into all the Statutes which confirm the Liberties of London viz. 14 E. 3. c. 1. which confirms all Reasonable Liberties 2 H. 4. c. 1. the Liberties which have been duly used 3 H. 5. c. 1. all except such as are Repealed by the Common Law 2 H. 6. c. 1. All Liberties well used and not Repealed by the Common Law There is no Statute or Prescription Warrant any of their Actions but only such as are consonant to Right Reason and Justice Qui Muragium ad villam clandendam gravius ceperint quam concessum fuerit per Chaâ—tam Regis perdant ex tunc gratiam suae concessionis graviter amerciantur Fleta lib. 2. c. 43. They which shall take more Murage than is granted to them shall lose the Benefit of their Grant and shall be grievously Amerced Le ley voet quo chescan perdera son Franchise que eo misuera Mirror c. 5. § 4. The Law wills that every one shall lose his Franchise which mis-use it And Bracton saith that Libertates possunt amitti per abusum vel non usum Bract. lib. 2. Fol. 56. lib. 3. Fol. 117. And it 's to be Observed that where the Law saith that they shall lose their Liberties or their Grant it 's to be understood of a Forfeiture of them for ever Inst Part 2. Fol. 222. How the Mayor and Commonalty and Citizens of London have mis-used and abused their Franchise by Levying of such Sums of Money to the Oppression of His Majesties good Subjects is submitted to the grave consideration of all Sober and dis-interessed Persons A Leet was seized into the Kings Hands because they did take of the Offenders against the Assize of Bread and Beer 2 s. when they had no Pillory nor Tumbrel Rastals Entries Fol. 540. In the Eires of the County of Cornwall 30 E. 1. inter Placita Coronae infra Hundredum de Keryer there was prescribed that in Holston Burgh they did take de novo of every great Beast viz. Ox c. as well of the Buyers as of the Sellers one penny whereas they ought to take but one penny of the Buyer And that they take of Merchandises exceeding 12 d. of the Buyer ob and of the Seller ob whereas they ought to take but ob of the Buyer Rolls Abridg. Part 2. Fol. 523. The Justices in Eire did enquire of those which did take superfluous or undue Tolls in Cities Burroughs or elsewhere against the common Usage of the Kingdom Cap. Itineris vet Magna Charta It 's to be Observed that if the Defendants in a Quo Warranto made default their Franchises were seized into the Hands of the King and the King was to be Answered all the Profits and if they did not Replieve within the Eire they lost their Franchises for ever Iten Canc. 6 E. 2.7 Ob. If the Mayor and Commonalty and Citizens of London have committed any Offence the particular Persons which have transgressed ought to be punished but the Corporation cannot for no Trespass lye against a Corporation 22 Ass 67. Brok. Tit. Corp. n. 43. 15 E. 4.1 b. No Capias no exigent against it neither can it be Imprisoned 21 E. 4.69 70. 45 E. 3.2 3. Neither can a Corporation be bound in a Statute or Recognizance Moores Rep. 68. Answ His Majesty may proceed against them in their Politick capacity and so to a Forfeiture of their Corporation and Franchises or in their Natural capacities against any particular Persons of the Corporation which are Offenders and they shall be punished Secundum quantitatem qualitatem delucti according to the quantity and quality of their Offence Non oppressus liberant Qui liberos opprimunt They will not free those which are Oppressed who Oppress those which are Free. FINIS