Selected quad for the lemma: opinion_n

Word A	Word B	Word C	Word D	Occurrence	Frequency Band	MI	MI Band	Prominent
opinion_n	charter_n	clause_n	recorder_n	24	3	16.1680	5	false

Text snippets containing the quad

ID	Title	Author	Corrected Date of Publication (TCP Date of Publication)	STC	Words	Pages
A64510	The third part of Modern reports being a collection of several special cases in the Court of Kings-Bench: in the last years of the reign of K. Charles II. In the reign of King James II. And in the two first years of his present Majesty. Together with the resolutions and judgments thereupon. None of these cases ever printed before. Carefully collected by a learned hand.; Reports. 1660-1726. Vol.3.	England. Court of King's Bench.	1700 (1700)	Wing T911; ESTC R222186	312,709	406

peruse it The Indictment proceeds on and says That continually after that time which must refer to the date of the Letters Patents of Queen Elizabeth the Recorder and the rest of the Aldermen were and ought to be de privato Concilio I have been Recorder there above these one and twenty years and never knew my self to be a Privy Councellor till now But the Indictment unhappily says de privato Concilio Majoris there the Word Majoris as big as it is is but Terminus diminuens it makes us but Privy Councellors to the Mayor But this is a mistake too for the Recorder and Aldermen are not a Privy Council to the Mayor but the Mayor and they are a Council to the City The like to this too appears in the printed Margent of James Baggs's Case The Clerk who drew this Indictment or the Council who ever it was thought they could not exalt the Mayor of Bristol high enough unless they made him a Prince and furnished him with a Privy Council and to fill the Kingdom again with a great many Reguli or petty Kings as it was amongst the Britons before the coming of the Romans It is part of the Misdemeanour charged upon James Baggs that he did Ironically say to the Mayor of Plimouth You are some Prince are you not Now to say it to a Mayor in good earnest as this Indictment does I take to be much worse 3. The Indictment having made the Recorder and Aldermen to be of Mr. Mayors Privy Council it goes on and lays it down for Law or Vsage That by all the time aforesaid which is still from the date of the Patent of Queen Elizabeth such Privy Council have not accustomed nor ought not to be called together to transact any Business that belongs to the Council we must suppose the choosing an Alderman is such Business unless by the Summons and in the presence of the Mayor But upon what ground does the Indictment lay this down for a Rule Is it because the Letters Patents so direct If so I agree it is a clear Case for the Letters Patents that create a Corporation may mould and frame and form its own Creature as it pleases But then the Indictment ought to have alledg'd it positively that the Letters Patents do so provide which it does not but the Indictment speaks it by a kind of implication and uncertainty but not positively nor directly It says that continually after the time of the Charter they have not accustomed to meet without the Mayor's Summons and in his presence It may be they relye upon the Usage and Custom for it This can be no legal Custom nor Prescription for we know the Head and Original of it which is but from the 23th year of Queen Elizabeth so that 't is not like the River Nile If they say the Usage shall interpret the Charter I answer Vsage may expound very ancient Charters where the words are obsolete and obscure and may bear several senses but this Charter has not so much as ambiguous Words nor any thing that can hear such a Construction But at last we shall be told That the Common Law does operate with the Charter and requires the Mayor's Summons and Presence to the choice of an Alderman and also in all such like Cases This is now the only Point to be spoken to and I shall apply my self to it I think it will be granted That the Mayor has no Negative Voice in the Election of an Alderman as great a Prince and as absolute as the Indictment will make him he has but one single Voice and if the majority of the Votes be against his Vote the majority must carry it against the Mayor The Words of the Charter do no more require the Mayor's Summons and Presence than it does that of the senior Alderman The Mayor is named in the Grant out of necessity it being part of the name of the Corporation to whom the Grant must be made He is named out of Conformity too he many times being none of the Aldermen and therefore could not be included in the naming of Aldermen but must therefore be named by himself And besides I agree it is due to him out of Reverence They usually say He represents the King but that is but a Notion and a Complement to him he has no more power than an Alderman who is a Iustice and a Iudge of the Goal-Delivery as well as the Mayor If the Charter had intended That there can be no chusing of an Alderman but by the Summons of the Mayor and in his presence it would surely have made him of the Quorum in that Clause that provides for the Election of an Alderman but that it does not The only Quorum is not of the sort of Persons but of the majority of the Electors Major pars eorum having mentioned before the Mayor and Aldermen Nay there is something to be observ'd out of the Charter it self which proves that the Queen intended no such thing and that is there are other Clauses in the same Charter to other purposes that do expressly appoint Quorums and the Mayor and Recorder are made to be of the Quorum which proves That where it is not so expressed the Mayor himself is not of the Quorum and this indeed led us to that Opinion and Construction that we proceeded to make our Election upon it A Charter in one Clause of it is best Expounded from other Clauses in the same Charter In the Clause that gives them power of Gaol-Delivery the Mayor and Recorder are both of the Quorum So in the Swearing of a New Alderman it is expresly provided that it shall be done before the Mayor and Recorder both In the Clause that gives them power to Try Felons and to keep a Sessions of the Peace it appears by the express Words That it may be done in the Mayor's absence and without him for there the Quorum for that purpose is The Mayor and Recorder or one of them So that a Sessions may be held without the Mayor yet I would never do it if I could prevail with the Mayor to joyn with us as we earnestly endeavour'd time after time to do in the Case before you for the chusing of an Alderman but he utterly refus'd us at four several times at some good distance of time Object If it be said That the power to elect an Alderman is given to the Mayor and Aldermen or the major part of them and so the Mayor by himself is particularly and expresly named by the Name of his Office and therefore is of the Quorum without any other express making of a Quorum Resp This I have already spoken to viz. upon what account he is so named and it could not be otherwise But that this does not so make him of the Quorum in it is manifest by this that those other Clauses where there are express Quorums of persons tho' the Mayor be there likewise mention'd in the beginning

of the Alderman to supply whose place there needed the Election He was not in the Town that was to chuse whereof he was Mayor when the Election was made The Aldermen were under an apprehension that they should be guilty of a great omission and neglect of their Duty and perhaps had some thought of their being under an Oath too and that they might be liable to punishment if they did not chuse within the eight days prescrib'd by their Charter nay 't is likely they thought they could make no choice at all if they did it not within the eight days Tho' all this was but their mistake of the Law yet it was very pardonable in them The Iudges in their Resolution upon that Case rectifie that Mistake and a new Election is thereupon order'd by this Court The Mayor there was not wilfully absent for he was at London when the Alderman died he was at a very great distance from his Town too viz. Launceston about 200 miles as I take it so that he could hardly hear of the death of the Alderman in the eight days time and go down thither before the end of the eight days there was no great necessity of an Election so soon And the Aldermen had done what they did out of a zeal for the Publick though it were a zeal without knowledge But I do not find that the void Election and the Aldermens meeting about it was held a Ryot or an unlawful Assembly No they were not so much as blam'd for what they did nay sure they were rather to be commended for their just intentions But our Case was quite another thing And all our Circumstances and the very plain words of our Charter that appoints the manner of our Election we had to our great charge and upon good advice drawn up in a special Plea for the Question truly arises upon the words of the Charter and the construction of them How it happen'd I cannot tell but a Iudge ruled us to plead not Guilty our chargeable special Plea came in a little too late It was a matter of Record and of Law and fitter to be determin'd by the Iudges than by a Iury. But these in truth were our Circumstances as I shall briefly relate them and I am ready to make out the truth of them An Alderman of Bristol tho' chosen yet cannot officiate till he be sworn he cannot be sworn by the express words of the Charter but before the Mayor and Recorder both I being the Recorder of Bristol happenn'd to be there some time before the day of chusing Members to the Oxford Parliament not long after Sir John Lloid's death I was indeed invited thither Sir Richard Hart the then Mayor and all of us I think not one Alderman absent were then met in the Council Chamber the usual place for that purpose we had nothing else to do It was mov'd that we might then make choice of a new Alderman while not only Mr. Mayor was present but while the Recorder was there too So that the Party chosen might instantly have been sworn and enter'd upon his charge for they have their distinct Wards And the Recorder many times comes not thither in a year or two for I live forty Miles from them and I seldom tarry above two nights at a Gaol-Delivery but then as it fell out I was there upon another occasion None oppos'd it but Mr. Mayor and he did it upon a Ceremony and Complement as he pretended because Sir John Lloid as he said was not yet buried Out of respect to Mr. Mayor we did forbear Some good time after and after Sir John Lloid had been buried I happen'd unexpectedly to be there again and Mr. Mayor was earnestly press'd again then to go to an Election upon the former reason that the new Alderman might presently be sworn Mr. Mayor still refus'd I do not remember but all the rest were very willing to have gone to an Election We did the second time forbear tho' I think we were all there I am sure a great number I tarried then four or five days it was at the Election to Parliament the Poll lasted six days but I left them at the Poll I was not fond of being chosen The Evening as I take it before I went away we were again upon the place and the Mayor with us and he was again press'd to it but wilfully went away and we still forbore But that night some of us sign'd a Writing desiring Mr. Mayor to joyn with us and we declar'd in it if he did not joyn we would proceed without him being the major pars This shews we had no design to chuse in his absence nay it plainly appear'd that the design was on the Mayor's part for he knew I could not stay and he was desirous to chuse in the absence of some of us that he might carry the Election against the person next in course to be chosen and every way qualified viz. Alderman Day I consulted the Charter and found it as I have now observ'd upon it and was clearly of Opinion for the Reasons I have offer'd that in such Circumstances the major part might chuse We gave notice to the Mayor and all the Aldermen then in Town and tho' the Government is most miserably divided yet in this Business there was nothing of Faction and the different Parties were not engag'd only the Mayor had his Design For we were six Aldermen at the Choice Sir Robert Cann an intimate Friend of the Mayor's being lame of the Gout sent us an Excuse but would approve of our Choice Another of our number one of our six is a zealous Man of Mr. Mayor's way yet not taking that to be now concern'd joyned with us and voted the same way We were six and this appears by the Indictment and we were unanimous in the person we chose No other person was so much as nam'd nor I believe thought on by any Body unless by Mr. Mayor there were but four Aldermen more in being for Mr. Mayor was none And the person chosen was not only next in course but every way qualifi'd has a great Estate worth three or four of some of the Aldermen no Tang of a Fanatick a constant Churchman he had but one great Fault he gave his Vote at the Election to Parliament for my self and Sir John Knight against Mr. Mayor and Sir Tho. Earl The person is not sworn to this day nor does desire the Office but rather declines it being fit for it He should have been Mayor this Year in course but is put by it and he is contented There has been another since chosen in his place by the Votes of five only Sir Richard Hart the Mayor being one I am sure they are not major pars And for this choice by six who are Iustices of the Peace as well as Mr. Mayor and the other four we who are four of six are all Indicted for a Ryot upon the account of this