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
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
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
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
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
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
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
Iudgment for the King The Iudgment must have two things in it 1. To damn the Corporation Quod penitus extinguatur excludatur from being a Corporation for the future for being wrongfully usurped it cannot be continued A Iudgment to continue Wrong and Vsurpation can never be a right Iudgment 2. A Fine to the King for the usurping it for the time past This Iudgment may and ought to be given where the Information is against particular Persons for usurping upon themselves to be a Corporation and they shall be fined and imprisoned but this cannot be where the Information is against the Body Politick for by the Iudgment the Body Politick is extinguished and dissolved and no Fine can be imposed upon that which is not So that hereby the King must lose his Fine which the particular Persons usurping ought to pay and the Law is agreeable always to it self and the means answerable to the end I suppose no man will affirm that where a Suit or Iudgment is against a Corporation that the Fine or Execution shall be against all or any particular Member For the Precedents and Authorities in this point 1. I do agree that there be Precedents in the Crown Office of Quo Warranto's brought against Corporations in such manner as this is brought for usurping to be a Corporation and to claim divers other Liberties Quo Warranto against the Bailiffs and Burgesses of Stratford P. 2 El. r. 1. for claiming to be a Corporation and to have divers Liberties and Franchises thereupon a Plea put in and a confession of their Claim by the King's Attorney The like against the Corporation of Reading the like Plea and confession M. 3 4 El. r. 4. the very next Term after the Information filed Against the Corporation of Horsham a Plea and confesson by the Attorney H. 14 Jac. r. 37. The like against the Corporation of Dover but nothing done upon it besides Plea put in H. 19 Jac. r. 26. H. 20 Jac. The like against Bath a Claim put in and confessed H. 20 Jac. r. 58. The like against Brackley and a Noli prosequi T. 3 C. 1. r. 22. The like against Baston a Claim put in and confessed The like against New Sarum Imparlance and nothing more upon it T. 2 C. 1. r. 47. T. 6 Car. 1. r. 43. The like against Bridgport Claim and Confession M. 2 C. 1. r. 36. The like against Biddeford a Claim and Noli prosequi The like against Witcomb they plead themselves a Corporation by another Name M. 8 C. 1. r. 42. and traverse the Name in the Information nothing more on the Roll. And it is probable there may be more like these but if of any authority they are for me and not against me 1. For that they all being for claiming other Liberties as well as to be a Corporation and being good and sufficient as to the other Liberties and Privileges that the Corporation claims though insufficient for this of claiming to be a Corporation they must be proceeded upon if the Attorney pleaseth But is any to be found where only the claiming to be a Body Politick and nothing else or if other things questioned yet only proceeded in as to this particular of claiming to be a Body Politick as in this Case That will be like 2. In all these nothing is done a Claim or Plea put in and that confessed or Non pross or not proceeded upon to Iudgment Perhaps not proceeded in because insufficient and so are Authorities for me For there being so many of these which are either Non pross or not proceeded in perhaps the Reason might be because insufficient in the Law as to the Corporation and so are Authorities for me in this Case But one there is found Quo Warranto vers Bailiffs and Burgesses of New Malton in Yorkshire T. 6 Jac. r. 3. Quo Warranto they claim divers Liberties as Courts Markets and others and amongst the rest to be a Body Politick They put in a Plea and make their Claim by Prescription Issue 's joined and tried by Nisi prius at York and found against the Corporation and a Iudgment entred Quod Libertat ' Franchesii predict ' in manus Domini Regis capiantur seisiantur quod Ballivi Burgenses capiant ' ad satisfaciend ' Dom ' Reg ' pro Fine suo pro Usurpacion ' Libertat ' Franchesii predict ' There is no mention of this Case in any Book or Report as far as I can learn so that this passed sub silentio Next how can this Iudgment be good 1. How can that be a right and lawfull Iudgment which shall be given for the continuing a thing that is by the very Iudgment adjudged to be unlawfully usurped and a Fine for it it is directly oppositum in Objecto 2. How can the Corporation be seized into the King's hands Extinguatur excludatur is proper the Corporation cannot be in the King 3. How could the Bailiffs and Burgesses be fined when they were vanished and gone there is no Corporation in being that which is laid upon a Corporation cannot be levied upon the particular Members I have made enquiry after this Borough of New Malton it is a small Borough within the Manour of the Ancestours of my Lord Eure it did anciently send Burgesses to Parliament but from the time of King Ed. 1. to the beginning of the Long Parliament 1640. it sent none then upon Petition a Writ ordered and they then and ever since have chosen Burgesses my Lord Eure being Lord of the Manour and offended with them did prosecute this Quo Warranto and they having neither Lands Revenues or Estates to defend themselves he easily prevailed they never in truth being incorporate nor having any Charter But that which I give for answer to these Precedents is 1. They are all where not only the being of the Corporation but also divers other Liberties were in question so that the Informations were good in part and not worth the while to question whether good as to that part of their being a Corporation The Fine upon them for usurping the other Liberties would have been more than they could bear or pay 2. That this is but one Iudgment and in a case of a small Borough and that Iudgment as entred not agreeable but inconsistent with the Rules of Law or Reason The Body Politick could not be feised into the King's Hands but whenever a Iudgment is given for the King for a Liberty which is usurped or extinct in the Crown The Iudgment must be quod extinguatur and that the Person that claimed them deinceps Libertat ' Franchesiis predict ' nullatenus intromittat ' sed ab usu earund ' a modo omnino cessat quodque the Person that used them pro usurpacion ' Libertat ' Franch predict ' super Dominum Regem capiat ' ad respondendum dict' Dom ' Reg ' de Fine
If the same produced under the Great Seal put to it when made be not sufficient Evidence to satisfie what can be Trin. 1. E. 3. r. 61 62. 2. But in this Case it is enrolled upon record also Inter placita Corone penes Camerarios in Scaccario it is enrolled there Obj. But perhaps it may be objected also That this was no Act of Parliament but only a Grant or Patent in Parliament because 't is that the King de assensu Prelator ' Comitu ' Baron ' ac totius Communitat ' regni in praesenti Parliamento Resp That Acts of Parliament observe not any certain Form Jones 103. In the Case of the Earldom of Oxford express that there was variety in Penning Acts of Parliament in ancient time Dominus Rex per Consilium fidelium subditor ' suor ' statuit and other forms there are yet good Acts. But that they were anciently in form of Patents or Grants in Parliament Magna Charta C. 1. is in form of a Charter or Grant The form of the Act of Parliament 11 E. 3. for creating the Prince Prince of Wales begins Edwardus Dei gratia c. in form of Patent Princes Case R. 8. fol. 8. and is De communi assensu consilio Prelator ' Comitu ' Baron ' aliorum de consilio nostro in presenti Parliamento and adjudged a good Act of Parliament and the Authorities and Reasons to prove it an Act of Parliament are fol. 18 19 20. so full that it might be thought that this Objection would never have béen made And that this is in the same form that all the rest of the Acts of this very Parliament of the 1 E. 3. are Membr the 17. appears by the Patent Roll of the same Parliament A Charter granted by the King de assensu Prelator ' Comitu ' Baron ' Communit ' Regni in Parliamento apud Westm ' to enable the City to apprehend Felons in Southwark An Act in the same form for the annulling the Conviction of Treason that was against Roger Mortimer in the time of E. 2. Rot. Claus 1 E. 3. M. An Exemplification then entred of an Act made in the same form in the same Parliament Rot. Pat. 2 E. 3. P. S. 1. M. 17. for the annulling the Attainder of Thomas Earl of Lancaster attainted tempore E. 2. Divers other Acts of Parliament in the same form made 1 E 3. Rot. Pat. 2 E. 3. P. S. 2. M. 11. Inst 2. 527. 639. for annulling divers other Attainders that were tempore E. 2. so that as to this Act of Parliament 1 E. 3. I think the Objections are answered and that it is an Act as pleaded And as to the other Act 7 R. 2. that that is no Act of Parliament only 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 vieult and object for Reasons against that being an Act of Parliament Obj. 1. It wants the assent of the Lords 2. It is only a Prayer of the Commons to have their Liberties confirmed and the King's answer le Roy le vieult but nothing done to confirm it Resp 1. As to the first Objection Supposing it true that there is no mention made of the assent of the Lords yet the Act is a good Act. 1. It appears to be in Parliament ad instantiam requisitionem Communitat ' Regni nostri in presenti Parliamento 2. The answer in Parliament that is given by the King to the making all Laws is given to this le Roy le vieult 3. And next it is admitted to be upon the Parliament Roll 7 R. 2. Num. 27. I have before said that Acts of Parliament are not in any certain form sometimes entred as Charters or Grants sometimes as Articles sometimes and frequently as Petitions the Books I have already cited prove it But according to the Course of Parliaments let it be in what form it will let it begin in which House it will yet it must go through both the Houses of Parliament before it can come to the King for his Royal assent If either House rejects or refuseth there it ends it comes not to the King nor is the Royal assent in these great operative words Le Roy le vielut in Parliament given to any thing but what the whole Parliament have assented and agréed unto So that this is an Objection grounded upon a Reason contrary to all the course of Parliaments which shews that the Lords assent was to it though not mentioned Selden's Mare Claus 249. gives a full Resolution herein Certissimum est saith he that according to Custome no Answer is given either by the King or in the King's Name to any Parliamentary Bills before that the Bill whether it be brought in first by the Lords or by the Commons hath passed both Houses as it is known to all that are versed in the Affairs and Records of Parliament And in the Prince's Case before cited there the Act is said to be de Assensu Consil ' of the Lords but doth not name the Commons And this Answers the other Reason also viz. That it should only be a Prayer and Petition also to have a Charter of Confirmation granted For since the Forms are in manner of Petitions since the Royal Assent or Words Le Roy le vieult is never put to any Bills in Parliament but such as are thereby made and passed into Laws the giving the Royal Assent is sufficient in this Case to prove it a Law But for farther Evidence 1. We have it under the great Seal of King R. 2. thus penn'd Ad instantiam requisitionem Communit ' Regni nostri Angl ' in presenti Parliamento nostro pro majori Quiete Pace inter Legeos nostros focendis pro bono publico de assensu Prelatorum Dominor ' Procerum Magnat ' nobis in eodem Parliamento assistentium c. So that hereby it is fully proved and shewn that though the Assent of the Lords be not mentioned in the Copy yet that it was had and under the Great Seal of R. 2. it so appears We have also in our Book of the Acts of that time in the City Lib. H. f. 169. a b the Proclamation made upon the first promulging this Act in the time of Sir Nicholas Brembre Lord Mayor and therein it is also entred in the same words as before under the Great Seal of R. 2. de assensu Prelator ' c. Next our Books and continual Practice ever since 'T is true that in the 7 H. 6. fol. 1. when 't is said that the Customs of London were confirmed by Statute Quaere what Statute but it is not there made a Quaere whether this were a Statute Instit 4. 250. Rep. 5. 63. Rep. 8. 162. all say that the Customs of London are confirmed by Parliament 7
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
H. fol. 270. b It appears that the King first swore the Custos 16 R. 2. r. Cl. M. 30. Ind. and the Sheriffs to be true to him and also turned out the Aldermen And that the Proceedings were before the Duke of Gloucester and other Lords by a Commission to enquire of all Defaults in the Mayor and Sheriffs in the well governing of the City awarded upon the Statute made by the King's Grandfather and that they were convicted by their own Confession and thereupon the Liberty of the City seised The Pardon and Restitution entred 19 Sept. 16. R. 2. Lib. H. fol. 272. a ubi supra and thereby 't is recited that the Proceedings were upon the Statute and the Iudgment was That for the first Offence they should forfeit one thousand Marks for the second two thousand Marks and for the third Offence that the Liberty should be seized The Statute 28 E. 3. cap. 10. enacted That the Mayor Sheriffs and Aldermen of London which have the Governance of the same shall cause the Errours Defaults and Misprisions in and about the same to be corrected and redressed from time to time upon pain that is to say to forfeit to the King for the first Default one thousand Marks the second Default two thousand Marks and for the third Default the Franchises and Liberties of the City shall be seised into the King's hands And that the Tryall of these Defaults shall be by Enquests of foreign Countries and the Pains levied upon the Mayor Sheriffs and Aldermen Vpon this Statute were the Proceedings of R. 2. grounded The other side have likewise much relied upon another Seisure made of the Liberties of the City of Cambridge A great Riot committed by the Town upon the Vniversity 5 R. 2. Rot. Par. N. 45. Inst 4. 228. heard in Parliament by way of Petition and form of Articles exhibited by the Scholars against the Mayor and Bailiffs Vpon reading of which it was demanded of them what they could say why their Liberties should not be seised After many Shifts they submitted themselves to the King's Mercy The King thereupon by common consent in Parliament seised the same Liberties into his hands as aforesaid and then granted divers Liberties to the Vniversities and certain Liberties the King granted to the said Mayor and Bailiffs and encreased their former These are the most substantial it would be too tedious to repeat all for there have been in those days but not since many like Seisures of Liberties as these only general but nothing particular to our purpose and though not cited I shall also mention those in Crook Certiorari to the Mayor of Fith they disobeyed the Writ Cr. 1. 252. Tyndals Case and gave scurvey Words and thereupon Mr. Noy cited two cases of Seisures of Liberties The Bishop of Durham had contemned the King's Process and imprisoned the Messenger An Information exhibited against him the Offence proved adjudged he should pay a Fine 33 E. 1. rot 101. quod capiatur and should lose his Liberties for his time because Justum est quod in eo quod peccat in eo puniatur Another in Banco Com' a Prohibition awarded to the Bishop of Norwich 21 E. 3. rot 46. and he excommunicated the Party that brought the Writ the Party brought his Action adjudged against the Bishop that his Temporalties should be seised till he absolved the Party and satisfied the King for his Contempt and that the Party should recover 10000 l. Damages I answer to them 1. They were all above three hundred years ago except that of 16 R. 2. which is above two hundred and ninety and no such thing ever done since what stress or weight can be given to such Proceedings To what Rules of Law since known or practised can we bring these Proceedings Are they now legal Precedents for the like things to be done The Writs out of old Records for the Ship-money and the Knighthood-money had as good Records to warrant them and much more plain to the purpose than these The Precedents of Edward the Second and Richard the Second either of their Lives or of their Deaths or of the Lives or Deaths of some of the Iudges of those days ought as I conceive to be no Examples And for H. 3. E. 1. E. 2. and R. 2. and those times they were times of great troubles and disorders and what was then done is no Rule or Precedent for this Court or any other Court of Iustice to go by unless by later times allowed or approved No Law-book or Report of any judicial Proceedings either of E. 2. or of E. 3. or any later Book of Law that I have yet heard of or met with and I doubt not but if there had been any the King's Counsel would have made use of them hath ever given so much credit or countenance to these Proceedings as to take any notice of them To make use of old Records or Precedents the Grounds or Reasons whereof cannot now be known to subvert any Law or Government established is neither advisable nor commendable But for answer to them Resp As to that of 16 R. 2. that you see is grounded upon the Statute 28 E. 3. c. 10. and can signifie nothing to the present purpose for there according to that Statute they condemn the Mayor Sheriffs and Aldermen upon their Confession that they had misgoverned the City The Mayor and Sheriffs being committed to Prisons and this done before Dukes and Earls by special Commission to that purpose appointed and convicted by their confession for the first second third Offense all at once Is this of good Authority in Law And for the others that of E. 2. was before Iustices in Eire at the Tower the Office of Mayoralty seised into the King's hands and replevied from year to year And that Seisure that was made by King E. 1. for what Reasons or Grounds or by what sort of Proceedings doth not appear all that doth appear of it is that de facto Custodes and Mayors were put upon the City but quo jure who can tell We know these times were times of trouble in the Barons Wars The Barons Simon Mountford Earl of Leicester being their General 48 H. 3. faught a Battel with the King at Lewes and took the King and Prince Edward the first both Prisoners The Barons differing among themselves 49 H. 3. and the Earl of Gloucester joined with the Prince who got out of Prison another Battel was fought at Evisham and the great Earl Mountford slain and then at Winchester by Paliament all his Party and the Liberties of the City of London seised and in such times as these and which followed in E. 1. E. 2. and R. 2. it is not to be marvelled if there were many Seisures and Custodes put on the City 't is more a marvel they were not destroyed The Statutes made in these times shew not only the Disorders but that the Liberties mere greatly
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
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
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
Corporation authorize the levying of War under their Common Seal shall be affected by it in their politick Capacity they are lyable to the Law in that Capacity only and must suffer in that Capacity only And the consequence of that is they are discharged in their private Capacity and this is a Law of Indempnity and Protection for all Crimes for a man cannot be lyable two ways for Treason or Felony or any other Crimes if he be not lyable in his private he is in his publick Capacity if not in his publick he is in his private And what is the consequence of that This is a Dispensation for a Corporation met together in a Body to do any illegal thing or to commit any enormous Crime for the Kings Counsel says this We are responsible for it in our politick Capacity and what Execution can then be done to punish that Corporation with such a punishment as the Law inflicts that is Imprisonment or death any more than upon an Action of Debt brought against them upon a Bond and Non est factum pleaded and found for the Plaintiff they can be imprisoned and the like So that this shall protect and shelter them in the commission of any Capital Offence for if they are to suffer for it as a Corporation you must take Iudgment against them as the Law gives it and how will that be done against an invisible Body What will be the Execution against the Corpus Politicum that can neither see nor be seen I think this mighty plain and I must confess I wonder how it could ever enter into the mind of any man that a Corporation could commit a Corporate Crime I have as it became me in regard of the duty of my place and before that for my own Learning read Stamford's Pleas of the Crown my Lord Cokes 4th Institutes Poulton de Pace Regni my Lord Hales's Pleas of the Crown Dalton's Justice of the Peace and other Books of that Subject but I defie any man to shew me in any of those Treatises concerning Criminal Matters any resolution that ever a Corporation that could be concerned that they should be brought before a Iustice of Peace or proceeded against upon any Law for Treason or Felony or be hanged in their politick Capacity My Lord I shall conclude all my discourse of this kind and I have almost done because I perceive I encroach upon your patience with an observation I have made upon the 19 H. 7. c. And and 't is the Statute that makes provision against Corporations that made By-laws against the Prerogative That Statute says that some Corporations did so now an higher Offence than that sure cannot well be described and there that Law says that those that do so that make such By-laws against the Prerogative shall forfeit for so doing for every Offence Forty pound unless they are confirmed by the Chancellor and Treasurer and Chief Iustices or any thrée of them Now to what purpose was this Statute made if the making of an ill By-law and worse cannot be than a By-law against the Kings Prerogative should be a forfeiture of the being of a Corporation How vainly did the King and Parliament employ themselves to make a Statute that a Corporation should forfeit 40 l. for such an Offence No Man will say they had rather take that Penalty than another when they might have a greater if a greater could be had by Law If they might have had a Quo Warranto and thereby destroyed the Corporation surely they would not have stood for the Penalty of 40 l. for they might easily have got more mony No they might have said We will never pass it by unless you will give us 4000 l. or a far greater Sum nor shall you have your Corporation again without you give us a considerable recompense for it And when the process and the procéedings were so expeditious and easie to come at it in a Quo Warranto as it was easie in those days why should they put the King to the delays in an Action of Debt for so small a Penalty as 40 l. So that I take it to be a direct Iudgment of the Parliament in that Case that no Corporation should or could be forfeited for the making of any By-Law that was irregular though it were even against the Kings Prerogative But to hasten to a conclusion I have all this while my Lord supposed that the Mayor Commonalty and Citizens of London have done this but it is not so this is not the Act of the Mayor Commonalty and Citizens 't is not the two hundreth part of the Corporation 't is but the Act of the Common Council and we have distinguished our selves by pleading that it does not consist of above 250 when the City contains above 50000. I must confess the Council is not taken notice of much in Law as is séen in Warren's Case 2 Crook 540. 2 Rolls 112. Warren being one of the Common Council of Coventry and displaced sued out a Writ of Restitution and upon that Writ it was returned that by custom the City might place and displace ad libitum they there held that the custom was good But it is not so of a Fréeman or Alderman because he hath a Fréehold but a Common Council is a thing collateral to a Corporation and the Office of a Common Council is nothing but only to give assistance and advice which they may refuse at their pleasure In Estwick's Case in Style 32. 2 Rolls 456. it is said That 't is a place méerly by custom and that the Common Council is properly but only a Court of Advice and my Lord you shall never intend more than that they were a Court of advice All the rise of their Power is but by custom and that custom is pleaded to give advice for the benefit of the City and make By-laws for the good of the Corporation and that is confessed by the Demurrer and you shall intend no more than what is opened in the pleading And then 't is evident this was done by a very small part of the Citizens of London and that does no way affect the whole Corporation sure In James Baggs Case 1 Rolls fol 226. it is said That if a Patent be procured by some persons of a Corporation and the greater part do not assent to it that shall not bind a Corporation And if so be a Charter sealed and sent by the King because not accepted in pais by the greater party bind not Shall an Act done by a few and an Act done that tends to a Forfeiture bind the whole in point of their being There is no ground to say that the Common Council represents the City no more than a Council does his Client or an Attorney his Master only as far as is for the benefit of the City they are chosen and entrusted to make By-laws if they offend they are but Ministers and Officers and so they are within the Statute of
or Scandal the King or his Government And for these great Crimes committed by the City I pray Iudgement against them Mr. Pollexfen upon another day for the City his Argument IN this Case when I consider the greatness and consequence of it That it affects the King the Parliament the Laws the very Government under which we have lived this great City of London and all other Corporations and People of England and their Posterities for ever I cannot but be troubled that I should be the Man to whose Lot it should fall to argue it but that which comforts me is that your Lordship and the Court upon whom the Iudgment of this great Case depends will help out my Defects and according to what is required in the great Places you bear take care and provide that by your Iudgment the ancient Government and Laws of this Kingdom receive no Damage or Alteration The King's Counsel have on their side only some general words out of old Records of Forfeitures and Seisures of Liberties which are of uncertain and doubtfull sense but there is not on their side produced any one Precedent Iudgment or Opinion to maintain the point in question viz. That a Corporation or Body Politick ever was determined or dissolved or taken away for a Forfeiture No not in the maddest of Times in the Times of Edward the 2d and Richard the 2d when the Tumults and Disorders were so great that they not only seized and took away Liberties and Franchises but the Lives of Princes Nobles Iudges Lawyers and all that stood in their way In those times though they have hunted and searched with all diligence not one instance of a Corporation taken away or dissolved by a Forfeiture is cited So that from hence I hope I may safely conclude that I argue in this case for the old and known Laws as they have been ever practised through all Ages and against that which never hath been practized or known which is a great Encouragement to me The Pleadings being very long I shall only repeat so much of them as I use when I come in order to speak of them I. The first thing proper to be spoken to is the Information it self and therein I make this Question Whether as to that part thereof that chargeth the Corporation with usurping upon themselves the being of a Corporation whether that be properly brought against the Body Politick as this is or ought to have been brought against the particular Persons I do agree that as to the other things mentioned in the Information the having Sheriffs Iustices c. The Information is properly brought against the Corporation And I do also agree that it may be good as to those things though bad and insufficient as to the charging the Corporation with Vsurpation of their Being without lawfull Warrant or Authority And that I may come singly to this Question I do put out all the other Franchises in the Information and take only what concerns this point and then the Information as to this point chargeth That the Mayor Commonalty and Citizens of London by the space of a Month last past before the Information did use and claim to have and use without any Warrant or Regal Concession within the City of London the Liberty and Franchise following viz. to be a Body Politick Re Facto Nomine by name of Mayor and Commonalty and Citizens and by that Name to plead and be impleaded which Liberty Privilege and Franchise the same Mayor Commonalty and Citizens upon the King by the time aforesaid have and yet do usurp This is the Substance of the Information as to this point and Whether this Information thus brought as to this matter be sufficient in the Law upon which a Judgment can be given or ought to have been brought against particular Persons is the Question I conceive it ought to have been brought against particular Persons and is insufficient as it is and that no Iudgment can be given upon it supposing the Defendants had demurred or pleaded nothing to it To make out the Insufficiencies I desire to consider what it imports 1. The very bringing the Writ and exhibiting the Information against the Corporation imports and admits the Mayor Commonalty and Citizens to be a Body Politick capable to be sued and impleaded respondere responderi otherwise there is no Defendant no Person in Court against whom the Suit is brought It is not enough that the Person sued be a Person by supposition or a pretended Person but none in reality If a Writ or Information be brought against a Baron and Feme this must admit that they are Baron and Feme really and truly and if there be any thing after in the Writ or Information that shews that they are not truly and really Baron and Feme but that they do wrongfully and unduly take upon them to be Baron and Feme when in truth they are not this would be contrariant and repugnant and abate the Writ or Information The like is supposed by the bringing the Writ or Information against the Body Politick it supposeth and affirmeth them really and truly to be such and the subsequent Affirmation that they usurped so to be and are not so really is contrariant and repugnant 2. When in the Information it is alleadged that the ayor Commonalty and Citizens the Liberty Privilege and Franchise of being a Body Politick Re Facto Nomine and to be sued and impleaded upon the King have and yet do usurp To usurp or doe any Act of Necessity imports and admits a precedent existence of the Persons that doth usurp or do the Act to the Act done Particular Persons may usurp and take upon themselves that which they have no right unto The Persons that doe the Act did before exist and had a Being And when a Corporation is said to usurp it of necessity must be supposed to have a precedent Being The sense of Vsurpation in a Quo Warranto is the Subject's taking upon him Franchises without Warrant My Lord Coke saith Inst 1.277 b. That Usurpation in the Common Law hath two significations 1. The one when a Stranger presents to a Benefice and his Clerk instituted and inducted he gains the Advowson by Usurpation 2. The other when any Subject without lawfull Warrant doth use any Royal Franchises he is said then to usurp upon the King So that an Vsurpation supposeth of necessity a Subject or a Person precedently in esso that useth the Franchise or that doth usurp That which is not in esse that hath no existence cannot use any Franchise cannot usurp The very alleadging that they usurp doth admit of necessity an Existence precedent in the Corporation such as can usurp or Act and therefore this Information is inconsistent with it self 3. But another reason to prove that it ought to be against particular Persons and cannot be against the Body Politick is drawn from the Iudgment that must be given upon this Information if
they at their Charge provided Market-places Stalls Standings and Officers for the accommodations of the Markets and cleansing them That for defraying those Charges they have always had divers reasonable Tolls and Rates for Standings and other accommodations That the Common-Council have as often as expedient always made Ordinances for regulating those Markets and for assessing and reducing to certainty reasonable Tolls Rates and Summs of Money to be paid by the Market-people for their accommodations That according to this Custom they made the Ordinance and by-Law Mr. Attorney in his Sur-rejoinder hath not denied any part of this but offers a traverse to that which is no where alledged or supposed It is never pretended that the City have had time out of mind the very Tolls and Summs of Money for Toll assessed by the Ordinance There is not a word in the Rejoinder to that purpose but to the contrary viz. That they in their Rejoynder claim a Power by Ordinance of Common-Council to assesse and set the Rates of these Tolls and Payments as often as and when to them shall seem expedient It is admitted in the Rejoinder that these Summs were not time out of mind only they had Power to sett and assess and ascertain as often as expedient Therefore when Mr. Attorney traverseth our having time out of mind the Tolls Rates and Summs of Money by the Ordinance assessed and in certitud ' reduct ' This is plain besides any thing claimed or pretended unto If he had intended to traverse what we have alledged that we have had time out of mind divers reasonable Tolls Summs of Money for Stalls and Accommodations Or if he would have traversed the Instance alledged for the Common Council assessing those Tolls as often as expedient that was plain and easie to doe but that he hath not done He hath only traversed whether the Tolls Rates and Summs of Money by the Ordinance assessed and reduced into certainty have been time out of mind This is the proper sense of his Traverse but if doubtfull in its sense his Traverse is naught for that cause for dubious words can make no Issue for the Iury to try else men should be tricked and ensnared by doubtful words to pervert right So that if the matter alledged in the Record be sufficient in Law to justifie the making this Ordinance or By-Law then what is done therein by the Act of Common-Council is lawfully and rightfully done and no Forfeiture I do agrée that for a Lord of a Market to prescribe to have a Toll uncertain and as often as expedient to ascertain it is no good Prescription But that is not our Case I do distinguish betwixt that and this Case Where there is by Custom confirmed by Acts of Parliament for I shall shew that they are Acts of Parliament notwithstanding what hath béen objected against them a Power and Authority vested in the Lord Mayor Aldermen and Common-Council to regulate and order the People Trades and Markets in the City and the Places and Conveniencies and Officers from time to time and consequently to regulate and ascertain the Tolls or Rates to be paid by the Market-people to prevent Extortion and Disorders That such Custom is legal The Chamberlain of London 's Case An Ordinance that no Broadcloth shall be sold in the City before it be brought to Blackwell-Hall to be searched Rep. 5. 69. and a Penny for every Cloth to be paid for Hallage under pain for forfeiting 6 s. 8 d. a Cloth to be recovered in the City Courts Though objected that this was an Imposition of payment of Money upon the King's Subjects yet adjudged good and a Procedendo granted An Ordinance that no Unfreeman shall use a Trade in London adjudged good City of London's Case Rep. 8. fol. 1. A multitude of Ordinances they have for regulating all manner of Trades and of Rates and Prizes And as much reason there is to object against them as this Ordinance or the Custom in this Case But the City of London have a Government and Power of making Ordinances for governing and regulating Trades buying and selling within the City placed in the Common-Council and confirmed by Act of Parliament and therefore not like the Case of any private Lord of a Market But 't is true their Ordinances must not be unreasonable The Payments that are imposed by this Ordinance are only imposed upon those that are under shelter 't is reason a recompence should be paid and there is no unreasonableness or injustice appears in the Ordinance but a reasonable recompence But the Custom or Power of the Common-Council is not denied as I take it For they have not denied the Power to regulate and ascertain the Tolls or Summs of Money alledged to be in the 5Common-Council if they had that must have been tryed Nor have they denied the Rates set to be reasonable So that I think as to this matter we have well entitled our selves and justified our making our By-Law and taking the Tolls or Rates thereby appointed and nothing in the Surrejoinder against us to the contrary objected But for confirming and making good our Customs in the Plea there are thrée Acts of Parliament pleaded 1. Magna Charta 2. Stat. 1. E. 3. 3. Stat. 7. R. 2. The King's Council have not denied Magna Charta to be a Statute but have denied the other two to be Statutes or Acts of Parliament and the reasons given by them are Obj. 1. Because not in Print nor Roll of it to be found or because no body knows where to find it Resp 1. Private Acts of Parliament do not use to be Printed few are 2. No Roll to be found Suppose there were not doth this after so long a time conclude there was none such especially since Mr. Sollicitor was pleased to acknowledge that there are no Parliament Rolls of E. 3. till 4 E. 3. It is true that almost all the Parliament Rolls of H. 3. E. 1. E. 2. and till 4 E. 3. are almost all lost But besides in those days publick Acts were not only entred upon the Parliament Rolls but from thence transcribed and sent under the Great Seal to be published by the Sheriffs of the Counties in the Cities and Boroughs and also by Writ to the Courts in Westminster-Hall to be there entred and recorded of which there are many found especially in the Exchequer and hence came the rule in Law that Iudges ex Officio are bound to take notice of general Acts of Parliament But for private Acts they were put under the Great Seal and the Parties interessed had the same to produce But that these in this Case should be questioned to be Acts is strange But to prove them Acts First 1. As to the Act 1 E. 3. 1. We have pleaded it under the Great Seal of King E. 3. that made it with a profert hic in Cur ' and shewn it with our Plea as we ought and this is Evidence sufficient of it self
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
or Being Lands Goods and all This cannot be agréeable to any Rules or Reason of our Law and therefore I take it it cannot be the Law The next thing is the Mischiefs and Inconveniences 2. The Mischiefs and Inconveniences that must attend this Doctrine or Law of Forfeiting and Surrendring if the Law be so 1. First Let us consider whether this at one stroke do not make all the Corporations in England of all sorts forfeit at once and perhaps many years since Is there any Corporation in England that hath not Offended or Transgressed all manner of Corporations fall under this Rule If they have transgressed or done any such Act as makes a Forfeiture as every miscarriage for any thing I can see to the contrary doth whether the Corporation be ipso facto dissolved by the Offence committed or else by the Iudgment which must relate to the Offence to avoid all mean Acts done by the Corporation All that they have done since such Miscarriage they have done without right and all that they think they have a Title to as a Corporation they are mistaken in they have none Perhaps if a Parliament should be called those forfeited Corporations can lawfully send no Burgesses I do not know whether I am mistaken or not I only offer this to Consideration amongst others As give me leave to venture a little farther upon these Considerations of Surrenders and Forfeitures of Corporations Can a Bishop Dean and Chapter Prebendary Parson c. surrender his Corporation or Body Politick If they can most of them perhaps are of the foundation of the Crown and had their Lands from thence We have many Statutes made to restrain their Alienations Those of Queen Elizabeth did not extend to hinder their Alienations to the Crown but perhaps out of hope of Preferment they aliened to the Crown till the Statute of 1 Jacobi cap. 3. took away that Power also of conveying to the Crown Can these forfeit the Corporations Perhaps we are Sinners all or at least as the ballance at some time or other may be holden may be found too light we are upon a point that goes to posterity fear and favour what may it doe and what may it not doe If they may surrender a forfeit what effects may this have upon the whole Ecclesiastical Estate If this had been known in the days of King Henry the Eighth perhaps there would have been no great need of Acts of Parliament to make him Head of the Church or to have dissolved the Monasteries Suppose that Colleges Hospitals and other Corporations founded for Charity can surrender or forfeit the present Masters and Fellows and the Heirs of the Donors may truck what effect may this have upon them what ways may they find out Also Cities and Boroughs what Divisions and Contentions hath it already produced some for surrendring others for defending what Animosities are about it The end of the Law is to preserve Peace and Quiet Divisions and Dissentions frequently end in the Destruction of both Parties The Citizens and Burgesses are I think three parts of four of the House of Commons It is considerable what Effects this may have in Parliaments our Laws and Posterities perhaps not a little concerned herein and if so surely this is a great Case But if only the City of London give me leave to see what the ill Consequences and Mischiefs will be Arguments from Mischiefs and Inconveniences are forcible Arguments in Law Inst 1. 11. 60. So saith Littleton and my Lord Cook upon Littleton and men must be desperate and sensual that despise future Mischiefs and Inconveniences and many other places there cited First all their Lands will be gone and revert to the Donors and their Heirs By Dissolutions of Corporations all their Privileges are gone Jones 190. and their Lands revert to their Donors F. N. B. 33. k. Inst 1. 13. b. or Lords of whom they were holden Secondly All their Markets Tolls and Duties that they claim by Prescription whereby the Government and the Honour of the City the Publick Halls Gates Prisons Bridges and other Edifices are in a great measure maintained Thirdly All the Debts owing to the City and all their personal Estate by the death or dissolution of the Corporation will be gone but who shall have them perhaps non difinitur in jure Fourthly all the Liberties and customary Privileges that the Freemen of the City their Wives and Children claim viz. to have customary shares in their Husbands or Fathers Estates To be exempt from Tolls In other Towns Ports and Markets to exclude Foreigners and Vnfreemen from using their Trades in London and many others Fifthly All the Acts of Parliament that give particular Powers and Authorities to the Lord Mayor and Aldermen or Common Council or Corporation respecting either the Government or Iustice of the City as about Ministers and payment of their Dues Buildings Paving of Strats Sewers Ensurance Office and many others Sixthly What shall become of the Orphans and all the Moneys and Debts the City owes and all the Charities in the City We have seen the City burnt and may remember what a Swarm were unhived thereby but we never yet saw it dissolved nor are the consequences measurable And though it please his Majesty upon the Dissolution of this to grant a new Charter yet it will be impossible any of these things can be preserved Their Lands Estates Debts Privileges Customs are all personal and annexed to the Corporation and must live and dye with it the said Acts of Parliament are all fixed to this Corporation and so are the Charities and cannot as I conceive be ever transferred to any other to be new created A new Corporation can be in no succession or privity with the old If a Body Politick be once dissolved though a new one be founded of the same Name Inst 1. 102. b that can have no succession to the old nor come in privity to it Therefore is it that in the Deau and Chapter of Norwich Case and in Fulcher and Heyward's Case the Preservation of the old Corporation is insisted on If every Abuser committed by a Corporation be a Forfeiture Determination or Dissolution Is there any one in England not forfeited and dissolved Abuse is a word of wonderfull large sense when the Law speaks of a Franchise abused or misused it is applicable to a particular Franchise as to a Market Court or the like and if that Franchise be misused or abused in Oppression or misuse contrary to the ends of it some certainty there is in it But the Abuse of a Corporation extends to all its Acts and all Estates of the Corporation and all the Privileges of all the particular Persons and all that are concerned in them are sufferers for every Abuse or Misuse or Mis-act or Trespass how small soever Who can tell in the Actions of a Person what may be taken to be ill or illegally done or an Abuse Who will trust a