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 for the well Government of the City 22 Ass Part 34. But Ordinances which are contrary to the Publick Good which is the scope and great End of all Laws for Salus Populi est Suprema Lex are injurious or prejudicial to a multitude and beneficial only to some particular Persons such Ordinances are repugnant to the Law of Reason to which they ought to be subordinate and by consequence void And most of the Ordinances and Constitutions which by the Common Law have been adjudged void as being unreasonable against common Right or purely against Law if their Nature and Quality be considered they have been found injurious to a multitude and prejudicial to the Common-wealth and to have had their commencement and continuance by Oppression and Extortion 1. They have made a Constitution and Ordinance to Levy several great Sums of Money as well upon the said Citizens of London as Strangers which come to the Markets of the said City with Victuals c. These Sums of Money Levyed by them could not be Levyed for Toll Pickage or Stallage incident to their Markets or due by Prescription they do not pretend it to be but by an Arbitrary Power without any Right and against Law they have Levyed the said Sums Every Oppression against Law by colour of any Usurped Authority is a destruction within Magna Chart. c. 29. and it 's the worst of Oppressions that is done by colour of Justice If the King de novo doth grant a Fair or Market Toll doth not pass as incident to it without special words Kelloway Fol. 138.145 11 H. 6.19 9 H. 6.45 T. 38. Eliz. Rot. 936. Heedy Weldhouse And the Reason is because it 's but a private Profit against common Right If the King doth grant a Market with Toll if he doth not appoint how much shall be taken for Toll the Grant is void For when the King doth create a Market and grant such things which may be chargeable to the Subject the Law presumes that the King granted it Pro bono publico and the Subject had Quid pro Quo and greater henefit by it But it 's against all reason to give power to any Subject to impose so much as he pleases upon another by Toll or other Duty and the rule is given Lib. 11. f. 8. in the Case de Monopolies that every Grant and Grievance to the prejudice of the Subject is void 13 H. 4.14 15. Kelloway temps E. 3.1 34. 30 E. 3.15 1. and expresly 9 H. 6.45 it is That in a Prescription for Toll it ought to be set out how much had been used to be taken for Toll 11 H. 6.19 Book tit Patent 11.12 When the King erects a Court he ought to appoint Officers and not the Patentee so that there be no oppression or extorsion 14 E. 3.13 14. In the 13 H. 4. the Commons complained in Parliament that an Office was erected for Measurage of Clothes and Canvas with a new Fee for the same by colour of the Kings Letters Patents and prayed that the said Letters-Patents might be revoked For the King could erect no Office with new Fees to be taken of the people who may not be so charged but by Parliament The Royal Answer of the King in Parliament was That the Statutes therefore provided should be observed Rot. Parl. 13 H. 4. n. 43.13 H. 4. fol. 16 17. King Edwrd the Third had granted to Robert Polcy a new Office of Measuring Worsteads with a new Fee at the petition of the Commons it was resolved in Parliament to be void and afterwards revoked as void by Authority of Parliament Rot. Parl. 22. E. 3. n. 31. Rot. Parl. 25. E. 3. And by the Stat. 34 E. 1. all Burthens or Charges put upon the Subject by the King either to or for the King or to or for any Subject by the Kings Letters-Patents or other Commandment or Order is prohibited unless it be by common consent in Parliament 1 Inst Part. 2. fol. 534. If the King cannot put or impose any Burthen or Charge upon the Subject but by their assent in Parliament From whence do the Mayor and Commonalty and Citizens of London derive their Power and Authority to set and impose such Sums of Money If from the King that Power and Authority is against the 29 ch of Mag. and the Statute of 34 E. 1. If by Prescription that Prescription is against the said Statutes and so void in Law therefore it 's an usurpation of an unlimited Power and contrary to Law and Justice and a just cause of forfeiture of their Corporation And that which adds to the Superinjustice of their actings as they have imposed these sums of Money upon the Kings Subjects so they may at their wills and pleasure impose what greater sums of Money they shall think fit Richard D'Wakyes did distrain William de Hay for that he did hold of him certain Lands apud Lin de faud by the service of 10 s. Et per tallagium ei faciendum ad voluntatem ipsius Richardi
and adjudged to be good T. 43. Ch. B R. Enter Wood Hawksel Rolls Abr. Tit. Prerog l. 2. Fol. 198. The Isle of Guernsey for Eight Years was discharged of all manner of Tolls Exactions and Customs Rot. Parl. 14. R. 2. n. 30. Tenants in Ancient Demesnes are free and quit of all Tolls in Fairs and Markets for all things concerning Husbandry and Sustenance Inst Part 4. Fol. 269. 21 E. 4.59 Some Franchises may be Forfeited 1. By a Non-User Some 2. By a Refuser And others 3. By an Abuser or Mis-user 1. By Non-User as those Franchises which are pro bono publico and therefore if one hath a Leet to keep and never keep it or a Clerk of a Market who never attends his Office these by Non-user are Forfeited The Non-user of a Fair or Market is no cause of Forfeiture 2 H. 7. Fol. 11. But the Non-pursuit or Arresting of Felons by him that hath the Franchise it may cause a Forfeiture 3 E. 1. c. 9. 39 H. 6.33 34. 2. Refuser The Abbot of Crowland had a Gaol wherein divers Men were Imprisoned and because he refused to deliver them but detained some of them who were Acquitted of Felony after their Fees paid the King seized the Gaol for ever 20 E. 4.6 The King granted to the Abbot of St. Albans to have a Gaol-delivery and divers Persons were Committed to the Gaol for Felony and because the Abbot would not be at Cost to make Deliverance he detained them in Prison long time without making Lawful Deliverance the Abbot had for that cause Forfeited his Franchise and that the same might be seized into the Kings Hands 8 H. 4.18 20 E. 4.6 Brok. Tit. Forfeiture Inst Part. 2. Fol. 43. 3. Abuser or Mis-user If a Corporation hath Franchises and Abuse or Mis-use them they may be Forfeited Inst Part 1. Fol. 183. The same Law if they take for Murage more than they ought to take by their Grant West 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 Forfeit 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 velit its concedere prestinum statum scilicet Majororem antiquas libertates Rex non habet inde Consilium 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 dicâ—a villa pro transgressione villae Capta fuit villa ista in manum Regis finem fecerunt sirmam suam exaltaverunt ad 20 l. per Annum Rolls Abridgm Part 2. Tit. Pâ—erog
Burgesses Citizens and Commonalty they may sue and be sued by those Names and they may have an Action ad respondendum Probis hominibus Burgensibus Civibus c. 7 E. 4.14 Where Mayor and Commonalty is sued and all the Commoners appear in their proper Persons it 's not good for this is another Body therefore the Corporation ought to appear by Attorney by the Name of the Corporation and not in their proper Persons 19 H. 6.8 Brok. Tit. Corporation n. 28. A Quo Warranto was brought against the Mayor and Bayliffs of Maydstone T. 2. Car. in B R. The Mayor and Bayliffs of Maydstone's Case Poph. Rep. Fol. 180. An Information against the Inhabitants of the Town and Burrough of Denbigh in the County of Denbigh for Usurping divers Franchises c. Cokes Entries Tit. Quo Warranto Fol. 537. b. 2. So that if a Quo Warranto is well brought against Burgenses Cives Inhabitantes Communitatem de villa c. be good a fortiori this Quo Warranto being brought against the Mayor and Commonalty and Citizens of London 2. The Burgesses of the Town of Tewksbury in the County of Gloucester brought an Action of Debt upon the Statute of 8 H. 6. c. 27. which hath reference to the Statute of Winchester if Satisfaction be not made for the Robbery therein mentioned within fifteen days after Proclamation The Action was given against the Commonalties of the Forest of Dean which are adjacent to the River of Severn and of the Hundreds of Bledstow and Westbury and the Writ was Praecipe Communitati Forestae de Deane Hundredis de B. W. Exception was taken to the Writ for the Writ ought to have been Praecipe Communitati Forestae d' Deane Hundredorum de B. W. according to the words of the Statute of 8 H. 6. as one entire Commonalty and yet the Writ was adjudged good for that it was to the same effect 8 H. 6. c. 27. 11 H. 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 consisit 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 Southhampten 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 Plantises 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. Fol. 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