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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

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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