In the Disquisition therefore of this Case,

WE shall Consider, 1. What a Corporation is. 2. If a Corporation may be Forfeited. 3. If the Mayor and Commonalty and Citizens have done any Act in their Common Council whereby to Forfeit their Corporation and Fran­chises.

A Corporation is either Sole, as Bishop, Parson, 39 H. 6.14. 7 E. 4.12. or Aggregate, as Mayor and Commonalty.

A Corporation Aggregate is a Lawful Society of a cerrain Number of Men Con­stituted by the King, with divers Liberties and Priviledges, 11 H. 7.27. Fitz grant 30. Summa Hostiensis. Fol. 60.

All Corporations have their Origination and Essence from the King, otherwise it's an Illegal Society, contrary to the Laws and Statutes of the Kingdom. 9 H. 6.16. b. Lib. 10. Fol. 26, 33. Inst. Part 3. Fol. 202. Lib. 8. Fol. 125.

One Corporation cannot make another by Usage or Prescription, 49 E. 3. Fol. 3.29. Ass. 8. Brok. Corporation, n. 45.

Neither can the King give License to any one to make a Corporation, Lib. 10. Fol. 27. b. But one Corporation may be made out of another by the King, 9 E. 3. Fol. 18.

The King may, if he pleaseth, make a limited Corporation, or a Corporation to a special purpose, as to take and not to give, or Conditional to pay Rents, &c. P. 11. Jac. en le Excheq. St. Saviours Case. 21 E. 4.59. 2 H. 7.13. Dy. Fol. 100. a. If the King grants Hominibus De Dale to be quit of Toll, they are a Corporation to that purpose, 21 E. 4.55, 56.

The King grants Civibus de Norwico quod non ponantur in Juratis, &c. the grant is good, and makes them a Corporation, 21 E. 4.55, 56. 2 H. 7.13. 7 H. 4.44.

When a Corporation is rightly Created, all Incidents are tacite annexed to it, Lib. 10. Fol. 30. b. Sr. Saviours Case.

If the King Creates a Corporation, and doth not give any express Power in the Letters Patent to make Laws or Ordinances, yet this Power is incident to the Cor­poration, and is included in the very Act of Incorporating, as is also the Power to Sue, to Purchase, and the like; but these Laws ought always to be subject to the Laws of the Realm, as Subordinate to it, Hob. Rep. Fol. 285. Therefore every Law made by any Corporation, ought to be, 1. Remedium Congruum, a fit Remedy to redress the Mischief. 2. Bonae fidei & rationi Consonum, Consonant to Justice and right Reason. 3. Pro Communi utilitate Civium & aliorum fidelium domini Regis, for the Publick Profit of the Citizens and other the good Subjects of the King; and therefore Ordinances or Laws by them made pro privato lucro, and not pro bono pub­lico, for private Advantage, and not for the publick Good, are void. Lib. 5. M. 32. & 33. Eliz. BR. Chamberline de Lond. Case. Hob. Rep. Fol. 212. P. 14. Jac. Rot. 907. Norris & Stamp.

A Franchise or Liberty is a Royal Priviledge in the Hands of a Subject, of some Benefit, Power, or Freedom that Persons or Places have above others, Crompt. Juris. Fol. 241.

Franchises are real or Personal.

Franchises Real are Priviledges annexed and given by the King to some Place, as County Palatines, Corporations, Lamb. Eiren. lib. 1. c. 9. Plowd. Fol. 123. Crompt-Juris. 137.

Franchises Personal, which are granted by the King to some Person or Persons, as Exemption from Juries, from Toll, 21 E. 4.55, 56.

All Franchises were Originally derived from the Crown, but now by continuance of Time are Claimed and had in some Cases by Prescription, Inst. Part 1. Fol. 114. Lib. 9. Fol. 23. Boulst. Part 1. Fol. 57. Part 2. Fol. 235. Mores Rep. c. 918.

If a Corporation Claims some Priviledges by Charter, and others by Prescription, and so conclude, Et eo Warranto uritur, it's good in Law, Mores Rep. c. 443.

Amongst Franchises, some are more Royal, as the Franchises of Counties Pala­tines, &c. Others less Royal, as Markets, Fairs, &c. Of these, some lye in doing, as to make Justices of Peace, to Pardon Felonies, &c. Some lye in having, as the Goods of Felons, of Fugitives, Wayses, Estrays, Dy. Fol. 44. Plowd. Com. Fol. 169. Others do lye in Discharge, as Exemption from Payment of Subsidies, &c.

Henry the Sixth, by his Letters Patent, 20 H. 6. Granted to Corpus Christi Colledge in Oxon that they and their Successors, and their Tenants should be discharged of Payment of Toll for Pontage and Passage in every Place within England, and ad­judged to be good, T. 43. Ch. B R. Enter Wood & Hawksel Rolls Abr. Tit. Prerog. l. 2. Fol. 198.

The Isle of Guernsey, for Eight Years was discharged of all manner of Tolls, Exactions, and Customs, Rot. Parl. 14. R. 2. n. 30.

Tenants in Ancient Demesnes are free and quit of all Tolls in Fairs and Markets for all things concerning Husbandry and Sustenance, Inst. Part 4. Fol. 269. 21 E. 4.59.

Some Franchises may be Forfeited, 1. By a Non-User. Some, 2. By a Refuser. And others, 3. By an Abuser, or Mis-user.

1. By Non-User, as those Franchises which are pro bono publico; and therefore if one hath a Leet to keep, and never keep it, or a Clerk of a Market, who never at­tends his Office; these by Non-user are Forfeited.

The Non-user of a Fair or Market is no cause of Forfeiture, 2 H. 7. Fol. 11. But the Non-pursuit or Arresting of Felons by him that hath the Franchise, it may cause a Forfeiture, 3 E. 1. c. 9. 39 H. 6.33, 34.

2. Refuser: The Abbot of Crowland had a Gaol, wherein divers Men were Im­prisoned, and because he refused to deliver them, but detained some of them who were Acquitted of Felony, after their Fees paid, the King seized the Gaol for ever, 20 E. 4.6.

The King granted to the Abbot of St. Albans to have a Gaol-delivery, and divers Persons were Committed to the Gaol for Felony, and because the Abbot would not be at Cost to make Deliverance, he detained them in Prison long time without ma­king Lawful Deliverance, the Abbot had for that cause Forfeited his Franchise, and that the same might be seized into the Kings Hands, 8 H. 4.18. 20 E. 4.6. Brok. Tit. Forfeiture. Inst. Part. 2. Fol. 43.

3. Abuser, or Mis-user. If a Corporation hath Franchises, and Abuse or Mis-use them, they may be Forfeited, Inst. Part 1. Fol. 183. The same Law, if they take for Murage more than they ought to take by their Grant, West. 1. c. 31.

The Duke of Norfolk had the Office of Marischal of the Kings Bench; he made a Deputy, who permitted the Prisoners to escape, adjudged that it was a Forfeiture of the Office: But if the Duke had made a Grant for Life to J.S. and he had permitted the Prisoners to escape, this had been no Forfeiture but for the Life of J. S. For in the Case of the Deputy the Duke did remain Marischal, and so Respondeat Superior; but in the other Case J.S. was Marischal for his Life, and so shall Forfeit only his own Interest, 39 H. 6.33, 34.

Where an Office is granted to a Man, and he mis-use or do not his Office, this is a cause of Forfeiture of it, Ibid.

When the Lord of a Franchise refuse to do a thing according to the Grant of the Franchise, or doth a thing against his Franchise, or mis-use his Franchise by himself or Deputy, or non-use his Franchise, in all these Cases the Franchise shall be seized: [Page 6]For when the King grants a Franchise, there is a Condition in Law, that he should do Right to all Parties concerned, if not, the Franchise shall be seized, 20 E. 4. Fol. 5, 6.

When one Franchise is incident to another of Common Right, then the Forfeiture of the one is the Forfeiture of the other, as the Abuser of the Court of Pye Powders may cause the Forfeiture of the Fair.

So when the Franchises are one of them Subordinate to another; but otherwise when they are Absolute, or by several Titles or Patents, H. 17. Jac. B R.

If one hath a Fair or Market for one day, and he keep it another day; as when a Grant or Prescription be for Wednesday, and he keep it on Thursday, it's a cause of Forfeiture. So when a Fair or Market is Granted to one for one day in the Week, and he keep it two days; but in the last Case, the Forfeiture shall be only of that he hath Usurped, Cok. Lib. 9. Fol. 50.22. Ass. 34. Old n. b. Fol. 157.

If a Man keeps a Fair or Market two days, and being Questioned by the King for it, and claims both days by the Kings Grant, and it's afterwards found that he hath Right but to one day by Prescription, and to another by Patent, and the first is found against him, this will be no Forfeiture of the last, Lib. 9. Fol. 50.

In some Cases for the Abuser of a Franchise one shall be Fined only, and not For­feit his Franchise. So for the Usurping of a Franchise, where none is, or of more than is due; but to take less than is due, is no cause of Forfeiture, Broke Tit. Forfeiture, n. 37.

14 H. 3. The Arch Bishop of Dublin was Fined Three Hundred Marks, for that he did dis-forest a Forest of the Church, 2 H. 4.3. Lib. 11. Lyfords Case.

By an Ancient Record, in the Time of William the Conquerour, it doth appear, that the end of Erecting of Corporations, and making and establishing of Cities and Towns Corporate, was, 1. Ad Consuetudines Regni & jus commune & dignitates Coronae Conservand. for the conservation of the Dignities and Preheminencies of the Crown, and the Laws of the Land. 2. Ad tuitionem gentium & Populorum Regni, for Defence of the Kings Subjects, and for keeping the Kings Peace in time of sud­den Uproars. 3. Ad defensionem Regni, for Defence of the Realm against outward and inward Hostility.

If a Corporation may be Forfeited.

A Corporation may be Forfeited: Corporations are called Liberties, Franchises, as it doth appear by the Writ of Non omittas propter aliquam libertatem, Regist. 82. f. n. b. 74. a. and by that Name have been ousted. By the Surrender of all Franchises and Liberties a Corporation is gone, Cokes Entries, Fol. 527. Palm. Rep. Fol. 493.

Cives London petunt quod Rex velit its concedere prestinum statum scilicet Majororem & antiquas libertates, Rex non habet inde Consilium quia sunt in bono statu ut sibi videtur, & hac vice statum non mutabit. Inter les Petitions de Parliament 18 E. 3.1.

The Citizens of London Petition the King that he would be pleased to grant to them their former state, that is to say, their Mayor and Ancient Liberties: The King gave them this Answer, That he was not Advised to it, because they were in a good state and condition, as it seemed to him, at pro hac vice, he would not alter or change.

The City of Norwich and the Liberties thereof seized into the Kings Hands for Burning of the Cathedral Church there, but afterwards upon their Petition, and Paying a great Fine, their Liberties were restored to them, 13 E. 1. Rot. Fin. m. 10.

Quia Homines de Southampton verberaverunt & vulneraverunt usque ad morrem Gilb. Canon, qui exequahatur praeceptum Regis in dic [...]a villa, pro transgressione villae Capta fuit villa ista in manum Regis & finem fecerunt, & sirmam suam exaltaverunt ad 20 l. per Annum. Rolls Abridgm. Part 2. Tit. P [...]erog. Fol. 204.

Because the Men of Southampton did beat and Wound even to Death, Gilb. Canon, who did Execute the Mandate of the King in that Town; for the Offence and Trans­gression of the said Town, the said Town was seized into the Kings Hands, and they paid a Fine, and their Fee-Farm Rent was advanced to 20 l. per Annum.

Mandatum est Guilielmo de Haverhall, Thesaurario Regis quod Civitas London Ca­piatur in manum Regis, eo quod Cives ejusdem Civitatis non tenuerunt Hutesium & cla­morem Secundum Legem & consuetudinem Regni, Teste Rege apud Wondestock 22 die Augusti. Rot. Claus. 30. H. 3. m. 5. Inst. Part 3. Fol. 118.

William de Haverhall, Treasurer of the King, is Commanded that the City of London be seized into the Kings Hands, for that the Citizens of the said City did not make Hue and Cry according to the Law and Custom of the Kingdom.

29 E. 3. the Liberties of the City of Oxford seized for a Riot, and part of them granted to the University, which they do enjoy to this day. Rot. Claus. 29 E. 3. m. 9. And in the 32 H. 3. the Liberties of the City of Oxford were seized into the Kings Hands, 32 H. 3. m. 18.

The Liberties of the Mayor, Bayliffs, and Commonalty of Cambridge were seized into the Kings Hands, for that in the late Tumults and Uproars there, they and other mis-doers did break up the Treasury of the University of Cambridge, and thereout take and burned sundry the Charters, &c. of the said University; and for that they compelled the Chancellor and Scholars of the said University, under their Common Seal, to release to the said Mayor and Burgesses all manner of Liberties, and also all Actions Real and Personal, and further to be bound to them in great Sums of money. And the King did grant unto the Chancellor and Scholars aforesaid within the said Town of Cambridge and Suburbs of the same, divers of the said Liberties; that is to say, the Assize, Conusance, and Correction of Bread, all Weights, Measures, Re­grators, and Fore-stallers, with the Fines and Amercements of the same, Rot. Parl. 8 R. 2. n. 11. Inst. Part 4. Fol. 228.

31 E. 1. The Liberties of the City of Winchester were seized, and after upon their Petition and a Fine paid they were restored, 31 E. 1. Rot.

T. C. Jac. Rot. 3. The Liberties of Newmarket in York-shire seized, and part of them never re-granted.

9 E. 1. The Liberties of the Corporation of Sandwich seized, and Judgment quod amittant libertates.

Vide m. 18. E. 3. Rot. 62. B R. en Talley Office.

Vide Rot. Claus. 15 E. 2. m. 2. Pat. Rot. 20 E. 2. m. 5. Claus. Rot. 16 R. 2. m. 30. Cl. Rot. 22 H. 6. m. 21. m. 16. Carol. 1. where the Liberties of divers Towns were seized. Judgment given that the Liberties of the Town of Barkenstead in Hartford­shire should be seized.

The Liberties of London seized for giving of false Judgment in the Hustings, 28 E. 3. c. 20. Punishments of the defaults of the City of London, and their Franchises to be Forfeited upon their default.

Rex amovit custodem Hospital: de suo Patronatu quia male dispendit prosicua domus, 9 E. 3. Lib. 11. Magdalen Colledge Case.

If a Bishop cut down all the Timber and Trees of his Bishoprick, he is to be Deposed as a Delapedator, 2 H. 4. Fol. 3. Lib. 11. Liffords Case.

The Colledges of the Templars, in the Reign of Philip the Fair of France, for their Insolency, Oppression, and Misdemeanors were all Forfeited and seized into the Kings Hands; the like was used against the Corporations and Societies of the Jews, as well in France under Dagobert, Philip Augustus, and Philip the Long, as af­terwards in Spain under Ferdinando King of Aragon and Castile, Bodin. Repub. Lib. 3. Fol. 383. Kelway. 6 H. 8. Fol. 169, 170. Regist. 20. Inst. Part 2. Fol. 432.

The Corporation or Community of the City of Corbeil in France was Forfeited and seized into the Kings Hands. Bodin. Repub. Lib. 3. Fol. 373.

And therefore Offences done by a Corporation Collegiately Assembled, the whole Corporation is Punished by loss of their Priviledges, or of the Right of their Com­munity. Bodid. Lib. 3. Fol. 373.

A Prohibition went to the Bishop of Norwich, and he Excommunicated the Party that brought this Writ, thereupon an Action of the Case was brought against the Bishop, and so set forth the whole Matter, and it being found against the Bishop, it was adjudged that his Temporalities should be seized untill he Absolved the Party, and satisfied the King for the Contempt, 21 E. 3. Rot. 46.

The Bishop of Duresin pretending that he had a Priviledge that the Kings Writ was not to come there, and because one brought it thither, he Imprisoned him, and this being Proved by Information against him, it was adjudged that the Bishop should pay a Fine to the King, and lose his Liberties. 31 E. 1. Rot. 18. Crok. P. 8. Car. Fol. 253.

By the Stat. 13 Eliz. c. 12. Subscription is required of the Clergy, if they refuse to Subscribe, the Parties are disabled, and ipso facto deprived, Inst. Part 4. Fol. 324.

Disapidations is a fault for which the Incumbent may be deprived, 29 E. 3.16. 20 H. 6.46. 9 E. 4.34.

By the same Reason, if a Corporation doth Abuse or Mis-use their Franchises, they do lose them, for there is a Condition in Law annexed to them, that they shall rightly use them, otherwise they shall be Forfeited.

If a Corporation may be Dissolved, then it may be Forfeited; but a Corporation may be Dissolved, ergo, Forfeited; for the Liberties being seized into the Kings Hands, they are Extinct.

Anno 34 H. 8. the Hospital of St. John of Jerusalem, and divers Monasteries were Suppressed and Dissolved, and their Possessions vested in the Real and Actual Posses­sion of the King. When the Religious Persons of Abbies or Monasteries are de­tained, and they have lost their Habit, Rule, and Order, then the Corporation is absolutely dissolved. Davyes Rep. 11. Case de Rroxies. Fol. 1. b.

If Lands be given to a Dean and Chapter, or to a Mayor and Commonalty, and to their Successors, and after such Body Politique or Incorporate is Dissolved, the Donor and his Heirs shall have again the Land, and shall not Escheat; and the Reason is, because the Fee is vested in their Politique Capacity; and therefore the Law doth annex a Condition to every such Gift and Grant, that if such Body Politique be Dis­solved, the Donor shall re-enter, for that the cause of the Gift faileth, Inst. Part 1. Fol. 13. b. Brok. Corp. n. 78.

Object. But it may be Objected, that a Corporation aggregate is immortal, in­visible, and never dyes, 39 H. 6. 14. a. 21 E. 4.27.

Answ. It's Answered, that a Corporation is Immortal not in Thesi, for we see they have their ortus and occasus, but in Hypothesi, in respect of their perpetual Succession, and because its presumed they will do no Act to Dissolve them, or commit any Offence by which they may Forfeit their Right of Community.

If a Corporation consists of Brothers and Sisters, and afterwards all the Sisters are dead, all the Grants and Acts made by the Brothers are void, for when the Holy Sisters are dead, it's no perfect Corporation, m. 37 Eliz. B R. the Case inter Serjeant Lovelace and Manwood, Rolls Abridg. Fol. 514. But suppose all the Brothers should likewise dye, where is the Immortality of the Corporation?

Though a Corporation cannot be granted over or assigned to any Person or Per­sons, yet it may be surrendred to the King; for a Corporation hath its Origination and Essence by the Charter of the King, by the surrender of their Charter the Cor­poration is gone: For after surrender of their Charter, if they use their Fran­chises, they are Usurpers upon the King; and if a Quo Warranto be brought against them, what can they Plead, their Charter being surrendred? Must they not submit to such a Fine as shall be imposed upon them?

If a Corporation may surrender its Charter, it may by mis-user or abuser Forfeit its Charter; and if the Charter by which they are Incorporated be Forfeited, where is the Corporation? Is it not translated into Aristophanes City in the Clouds, for now it is Invisible?

Object. But it may be Objected, that if a Corporation doth surrender all its Lands and Franchises unto the King, yet the Corporation doth remain; for the Dean and Chapter of Norwich, 2 E. 6. did surrender to the King their Church and Possessions, and he Incorporated them by the Name of Dean and Chapter, &c. Sanctae & in­dividuae Trinitatis Norw. ex fundatione, E. 6. and re-granted to them their Church and Possessions, by the Name of Dean, &c. omitting ex fundatione Regis, E. 6. And it was adjudged the Ancient Corporation remained.

Answ. It's Answered, That by their Incorporation of Henry the Eight, they were to be Dean and Chapter of the Bishop of Norwich, and therefore to be of his Coun­cil, to Advise with them about the determination of difficult Points and Controver­sies of Religion; and also to give their consent to every Grant which the Bishop should make to bind his Successor: For it was thought by Henry the Eight not to be Reasonable to impose so great Confidence in any sole Person, as to give him Power to bind his Successor, and therefore without the consent of the Bishop, he having an Interest in them as a Corporation, to be his Counsel, the Dean and Chapter, with­out the consent of the Bishop, could not surrender their Corporation, but shall re­main as long as the Bishoprick continue, Lib. 3. m. 40, 41. Eliz. Dean & Chapter de Norw. Case.

Object. Civitas London habeat omnes libertates suas antiquas & consuetudines, Mag. Ch. c. 9.

The Liberties of the City of London for any Cause shall not be taken into the Kings Hands, Rot. Parl. 1 E. 3. Authoritate Parliamenti, Inst. Part 4. Fol. 253.

Answ. That the City of London shall have its Ancient Franchises and Frank Cu­stoms, it's Excellently Interpreted by our Ancient Authors, that the Citizens of Lon­don shall have their Franchises of which they are seized by a Rightful and Loyal Title of the Gifts, Grants, and Confirmations of the Kings, and which they have not Forfeited by their Abuser or Mis-user, and that they have those Franchises and Customs which are sufferable by Right, and not Repugnant to Law, Inst. Part 2. Fol. 20. Mirror, Ch. 5. §. 2. Fleta Lib. 2. c. 48. Plowd. Cont. Fol. 40. And it doth appear by the Authorities abovesaid, that for Abusion the Franchises of the City of London may be seized: And whereas the Act 1 E. 3. saith, that the Liberties shall not for any cause be seized, &c. it must be understood, that for any cause that is not reasonable, or at the Kings Pleasure, they shall not be seized.

The Citizens of London were before and after the Conquest Governed by Port­graves or Portgreeves until the Reign of King Richard the First, by whose Charter they were Governed by two Bayliffs: But King Richard, the first Year of his Reign, appointed them a Mayor, who continued therein until the Eight Year of King John, and then King John appointed a Mayor, and because sometime the Mayor appointed by the King was no Citizen of London, King John, the Tenth Year of his Reign, Granted to the Citizens Liberty and Authority to chose a Mayor De seipsts, Inst. Part 4. Fol. 255.

7 R. 2. it was Enacted that the Aldermen of London shall not from henceforth be Yearly chosen, but shall remain till they be put out for Reasonable cause, notwith­standing the Ordinance of Edward the Second and Edward the Third. So that by this Act it doth appear, that for Reasonable cause an Alderman might be put out, Rot. Parl. 7 R. 2. n. 25.

So that by the Authorities above-said it doth appear, that a Corporation is a Fran­chise, and that a Franchise may be Forfeited, and by consequence a Corporation.

3. If the Mayor and Commonalty, and Citizens have done any Act in their Common Council, whereby to Forfeit their Corporation and Franchises.

wherein we shall Enquire, 1. Whether the Quo Warranto be well brought against the Mayor and Commonalty and Citizens, &c. or ought not the same to have been against particular Persons. 2. How far the Acts of the Common Council shall bind the Corporation. 3. What those Acts were. 4. If they amount unto a Forfeiture of the Franchises and Liberties.

1. It's conceived that the Quo Warranto is well brought against the Mayor and Commonalty and Citizens of the City of London, without naming any Persons in particular, for by that Name they ought to Plead and be Impleaded, &c.

An Action was brought against the Masters and Scholars of New Colledge in C. and well brought, 15 E. 4. Fol. 33. a.

Quo Warranto versus le Corporation de Maydenhead in Barkshire, quod Gardiani, Pon­tenarii Burgenses & Communitas de villa de Maydenhead, for three Years have used a [Page 10]Market with divers Liberties. H. 17. Jac. B R. Rot. 106. in Coron. Office. Palmer's Rep. Fol. 80.

An Action upon the Stat. of Winchester was brought against the Men Inhabitant in Hundredo de Elthorn and Spelthorn, without naming any particular, and well brought. T. 12. Jac. Fosters Case. Huttons Rep. Croke Part 2.187. Noys Rep. Fol. 21.

An Action versus Inhabitantes in domidio Hundredi d'Waltham, and adjudged good, T. 15. Jac. Rot. 2244. Constables Case. Brownl. Part 1. Fol. 156.

An Action, was brought against Dean and Chapter, without Naming them by their Names of Baptism; so if Dean and Chapter bring an Action, 21 E. 4.15.

An Action upon the Stat. of Winchester, and 27 Eliz. Versus homines Inhabitantes de D. Rastal. Entries, Fol. 406.

If the King grants Land in Fee Probis hominibus villae d'D. it's a good Corporation; and so, if he grants Lands Burgensibus Civibus & Communitati, to the Burgesses, Ci­tizens, and Commonalty, they may sue and be sued by those Names, and they may have an Action ad respondendum Probis hominibus, Burgensibus Civibus, &c. 7 E. 4.14.

Where Mayor and Commonalty is sued, and all the Commoners appear in their proper Persons, it's not good, for this is another Body; therefore the Corporation ought to appear by Attorney by the Name of the Corporation, and not in their pro­per Persons, 19 H. 6.8. Brok. Tit. Corporation, n. 28.

A Quo Warranto was brought against the Mayor and Bayliffs of Maydstone, T. 2. Car. in B R. The Mayor and Bayliffs of Maydstone's Case. Poph. Rep. Fol. 180.

An Information against the Inhabitants of the Town and Burrough of Denbigh in the County of Denbigh, for Usurping divers Franchises, &c. Cokes Entries, Tit. Quo Warranto. Fol. 537. b.

2. So that if a Quo Warranto is well brought against Burgenses, Cives, Inhabitantes & Communitatem de villa, &c. be good a fortiori, this Quo Warranto being brought against the Mayor and Commonalty, and Citizens of London.

2. The Burgesses of the Town of Tewksbury in the County of Gloucester, brought an Action of Debt upon the Statute of 8 H. 6. c. 27. which hath reference to the Sta­tute of Winchester, if Satisfaction be not made for the Robbery therein mentioned, within fifteen days after Proclamation: The Action was given against the Commo­nalties of the Forest of Dean, which are adjacent to the River of Severn, and of the Hundreds of Bledstow and Westbury, and the Writ was, Praecipe Communitati Forestae de Deane & Hundredis de B. & W. Exception was taken to the Writ, for the Writ ought to have been Praecipe Communitati Forestae d' Deane & Hundredorum de B. W. according to the words of the Statute of 8 H. 6. as one entire Commonalty, and yet the Writ was adjudged good, for that it was to the same effect, 8 H. 6. c. 27. 11 H. 6. Fol. 47. a. Inst. Part 2. Fol. 570.

The next thing which falls into Consideration, is, How far the Acts of the Common Council shall bind the Corporation.

1. The Acts of the Common Council shall bind the Corporation, for that Court hath some Resemblance of the High Court of Parliament, for it consisteth of two Houses, the one of the Mayor and Aldermen, the other of such as be of the Com­mons Assembly, Representing the Commonalty of London. In this Court they may make Constitutions and Laws for Government of Trade and Traffick, for the better Execution of the Laws and Statutes of the Nation, or pro bono Publico, and for the good Government of the City, so those Constitutions and Laws be not contrary to the Laws and Statutes of the Nation: And being made by the Mayor, Aldermen, and Commonalty, do bind within the City of London and the Liberties thereof. Inst. Part 4. Fol. 249. Lib. 5.62, 63. the Chamberlain's Case. Lib. 8.173. the Case of the City of London.

14 H. 8. It's said, that the Dean and major part of the Chapter make the Corpo­ration, and their Act is the Act of the Corporation, although the others do not agree to it, 14 H. 8. Fol. 9. So in the 21 E. 4.27.70. b. it's said, ubi major pars ibi tota, 9 H. 6.32.

If the Major part of the Corporation doth Imprison the Minor part until they con­sent to do an Act, although they do not consent, yet the Act done by the Major part shall bind all, and its the Act of the Corporation, 15 E. 4. Fol. 2. And with this agrees Panormitan C. cum in cunctis; where it's said, Quod authoritas & protestas Capituli consisit in majori parte ejus, & sic totum Capitulum facere dicitur quod major pars facit, Davyes Rep. Fol. 48.

Therefore I agree, that if the Minor part of a Corporation accept of a New Charter, it shall not bind the Corporation, T. 13. Jac. Baggs Case Rolls, Rep. Part 1. Fol. 224.

Yet in some Cases the Act of one, or of some few of the Corporation will bind the rest: Did not the Corporation of Sandwich, for the Misdemeanour of John Den­nis, the then Mayor thereof, in a high Measure suffer, and being thereof Convicted, was not the Judgment thereupon Quod Communitas amittat libertatem?

The Command of the Mayor only, to the Bayliff of the Corporation, to enter into certain Lands for the Corporation, though it be without Deed, shall be good, and bind the Corporation, 16 H. 7.2.

A Sum of 100 l. per Annum was due to the Mayor and Commonalty of South­hampten out of the Customs of the King, an Acquittance by the Mayor alone, because he was the Head of the Corporation, was allowed by the Justices, and for that there were shewn many Prsidents of Acquittances by the Mayor made in times past, 2 R. 3. Fol. 7.

An Action of Debt was brought against the Provost and Scholars of a Colledge in C. for that T. M. their late Provost and Predecessor of the Def. and the Scholars by F. their Servant bought certain Goods to the value of 10 l. which came to the use of the Colledge: By the Justices it was agreed, that the Contract was good, and shall be intended the Contract of the Provost only, and the Name of Scholars is but sur­plusage, for the Contract of the Provost, and for that it came to the Use of the Col­ledge is sufficient, 5 E. 4.7. Brok. Corporation, n. 53.

A Writ of Covenant was brought by the Mayor and Commonalty d' H. against the Mayor and Commonalty of D. and declared that the Defendants by their Deed Covenanted that the Plantises should be Free of Murage, Pontage, Customs, and Toll in D. of all those of H. and that they have unjustly taken Toll by certain of their Burgesses of certain of the Burgesses of H. &c. adjudged that the Prisal and taking by their common Minister, is a taking of the whole Corporation, for it cannot reasona­bly be intended that the whole Community could meet together to take Toll, and therefore it was adjudged a breach of the Covenant; there is no mention made that he was their Minister by Specialty, Sub communi sigillo Corporationis. 48 E. 3. Fol. 17.

I do agree, that where there are Garden and Chaplin, Mayor and Commonalty, Dean and Chapter, or the like, the Garden, Mayor, or Dean, solely cannot make a Lease, nor discontinue, for it ought to be by the whole Corporation, and by Deed, 21 E. 4.70. But if the King makes a Corporation consisting of Twelve Men, to continue for ever in Succession, when any of them dye, that the rest may chose others in their place, if three or four of them dye, yet all Acts done by them shall be valid in Law, Rolls Abridgment Part 2. Fol. 514.

By which it doth appear by what Acts a Corporation is bound, but when those things are acted and done in the Common Council of the said City, being a Court of Record, and which is Representative of all the Free Men and Citizens of the City of London, they must in a more eminent degree bind the Corporation. We shall Observe,

4. What those Acts were.

1. The said Mayor and Commonalty and Citizens of the said City of London have assumed an unlawful and unjust Power and Authority to Levy Money of the Subjects of our Lord the King, to the proper Use of the said Mayor and Commo­nalty and Citizens assumed by colour of the Laws or Ordinances by them in Fact Or­dained without any other Right, Title, or Authority; and in particular in their Common Council Assembled, they did make and publish a certain Law by them in Fact Enacted, for Levying several Sums of Money of all His Majesties Subjects and [Page 12]Liege People, as well Free as not Free men of the said City, and of other Foreigners, at the Publick Markets held within the City aforesaid, com­ing thither to Sell their Victuals and Provisions.

2. That the said Mayor and Commonalty, and Citizens of the said City, in their Common Council Assembled, without any Legal Autho­rity, did assume upon themselves to Censure and Judge our said Lord the King and the Prorogation of the Parliament, and then and there being so Assembled in their Common Council, did Vote and Ordain, that a cer­tain Petition, under the Name of the Mayor, Aldermen, and Commons of the City of London in the Common Council Assembled, should be exhibited to our said Lord the King, in which Petition there was con­tained, that by the said Prorogation of the Parliament, the Prosecution of the Publick Justice of this Kingdom, and the making necessary Pro­vision for His Majesties Protestant Subjects was obstructed: And they did Order the Imprinting of the same, and caused the same to be Published and dispersed.

We shall enquire whether these Laws and Ordinances made by the Mayor and Commonalty and Citizens of London be Warrantable by Law or not.

I do agree that they have Power to make Laws and Constitutions for the well Government of the City, 22 Ass. Part 34.

But Ordinances which are contrary to the Publick Good, which is the scope and great End of all Laws (for Salus Populi est Suprema Lex) are injurious or prejudicial to a multitude, and beneficial only to some par­ticular Persons, such Ordinances are repugnant to the Law of Reason (to which they ought to be subordinate) and by consequence void: And most of the Ordinances and Constitutions which by the Common Law have been adjudged void, as being unreasonable, against common Right, or purely against Law, if their Nature and Quality be considered, they have been found injurious to a multitude, and prejudicial to the Common­wealth, and to have had their commencement and continuance by Op­pression and Extortion.

1. They have made a Constitution and Ordinance to Levy several great Sums of Money, as well upon the said Citizens of London as Strangers which come to the Markets of the said City with Victuals, &c.

These Sums of Money Levyed by them could not be Levyed for Toll, Pickage, or Stallage, incident to their Markets, or due by Prescription (they do not pretend it to be) but by an Arbitrary Power, without any Right and against Law they have Levyed the said Sums: Every Oppression against Law by colour of any Usurped Authority is a destruction within Magna Chart. c. 29. and it's the worst of Oppressions that is done by colour of Justice: If the King de novo doth grant a Fair or Market, Toll doth not pass as incident to it without special words. Kelloway, Fol. 138.145. 11 H. 6.19. 9 H. 6.45. T. 38. Eliz. Rot. 936. Heedy & Weldhouse. And the Reason is, because it's but a private Profit against common Right.

If the King doth grant a Market with Toll, if he doth not appoint how much shall be taken for Toll, the Grant is void: For when the King doth create a Market, and grant such things which may be chargeable to the Subject, the Law presumes that the King granted it Pro bono publico, and the Subject had Quid pro Quo, and greater henefit by it; But it's against all reason to give power to any Subject to impose so much as he pleases upon another by Toll or other Duty; and the rule is given, Lib. 11. f. 8. in the Case de Monopolies, that every Grant and Grievance to the prejudice of the Subject is void, 13 H. 4.14, 15. Kelloway temps, E. 3.1 34. 30 E. 3.15. 1. and expresly 9 H. 6.45. it is, That in a Prescription for Toll, it ought to be set out how much had been used to be ta­ken for Toll, 11 H. 6.19. Book tit. Patent 11.12. When the King erects a Court, he ought to appoint Officers, and not the Patentee; so that there be no oppres­sion or extorsion, 14 E. 3.13, 14. In the 13 H. 4. the Commons complained in Parliament, that an Office was erected for Measurage of Clothes and Canvas, with a new Fee for the same by colour of the Kings Letters Patents; and prayed, that the said Letters-Patents might be revoked: For the King could erect no Office with new Fees to be taken of the people, who may not be so charged but by Parliament. The Royal Answer of the King in Parliament was; That the Statutes therefore provided should be observed: Rot. Parl. 13 H. 4. n. 43.13 H. 4. fol. 16, 17. King Edwrd the Third had granted to Robert Polcy a new Office of Measuring Worsteads, with a new Fee: at the petition of the Com­mons it was resolved in Parliament to be void, and afterwards revoked as void by Authority of Parliament: Rot. Parl. 22. E. 3. n. 31. Rot. Parl. 25. E. 3.

And by the Stat. 34 E. 1. all Burthens or Charges put upon the Subject by the King, either to or for the King, or to or for any Subject, by the Kings Letters-Patents, or other Commandment or Order, is prohibited, unless it be by common consent in Parliament: 1 Inst. Part. 2. fol. 534.

If the King cannot put or impose any Burthen or Charge upon the Subject but by their assent in Parliament; From whence do the Mayor and Commonal­ty and Citizens of London derive their Power and Authority to set and impose such Sums of Money? If from the King, that Power and Authority is against the 29 ch. of Mag. and the Statute of 34 E. 1. If by Prescription, that Pre­scription is against the said Statutes, and so void in Law: therefore it's an usur­pation of an unlimited Power, and contrary to Law and Justice, and a just cause of forfeiture of their Corporation. And that which adds to the Superinjustice of their actings, as they have imposed these sums of Money upon the Kings Subjects, so they may at their wills and pleasure impose what greater sums of Money they shall think fit.

Richard D'Wakyes did distrain William de Hay, for that he did hold of him cer­tain Lands apud Lin de faud by the service of 10 s. Et per tallagium ei faciendum ad voluntatem ipsius Richardi, & quia ipsum Willielmum talliavit, Anno Regis 9. una f. vice ad 2 s. & atia vice Anno 10 & 18 d. quod tallagium ei à retro fuit pro proedictis 2 s. per Annum ipsum Willielmum distrinxit super feodem suum pro proedi­ctis arreragiis; Adjudged that the Tallage of 2 s. and 18 d. or any other sum uncertain: And because it was to be at the will and pleasure of the said Richard D'Wakyes, 'twas against the Statute of 34 E. 1. and so void: M. 11. E. 1. in Ban­co. Rot. 49. Sussex.

A Custom that the Lord of a Mannor shall detain the Distress taken upon his Demesnes until a Fine be paid unto him for the damage, at his will, is void. Davys Rep. fo. 33. a. 2 H. 4.24. and because he is Judge in his own case. 5 H. 7. fo. 9.44 E. 3. fo. 19.

An Action of Trespass was brought for carrying away of certain Trees. The Def. pleaded a Custom; that he, of the Tenants of the Mannor, which first came to the place when, &c. should have all the Windfalls there: Adjudged that this Custom was void for the incertainty; and the reason given was, that that lieth not in Prescription, which lyeth in the will and pleasure of man; for the will of man is uncertain: 14 E. 3. Fitz. Batt. 277.

And this Ordinance of the Mayor and Commonalty and Citizens doth not onely extend to his Majesties Subjects within the City of London, but unto Fo­rainers and Strangers which shall come to their Markets within the said City; which is not only against Law, but a very high breach of their trust which his Majesty hath reposed in them, and a misuser and abuser of their Franchises.

The Lord of a Mannor prescribes to have of every man which breaks the Pound of the Lord there 3 l. the Prescription is not good, because Strangers can­not be bound by it, 21 H. 7.40. 11 H. 7. fo. 14. a. 21 H. 7. fo. 20.

And any Town may make a By-law amongst themselves, that no man there shall put their Cattel within the Commons before Michaelmas upon pain of 20 s. adjudg'd that that binds them, but no Strangers shall be bound by it, 20 H. 7.40. 11 H. 7. fo. 14. 21 H. 7. fo. 29.

And therefore that Ordinance or By-law made by the Guardians and the Fel­lowship of Weavers of Newbury, That no person should use the Art of Wea­ving within the said Town of Newbury except he had been an Apprentice to the Art within the said Town, and had used it there by the space of five years before the said Ordinance, or were admitted by the Guardian and Fellowship, up­on the pain of 20 s. a month, is void, because it excludes Strangers, though they have served as an Apprentice for 7 years to the said Art: and because it did re­strain the Liberty of the Subject: Hol. rep. fo. 211, 212.

This Ordinance made by the Mayor and Commonalty and Citizens of Lon­don in their Common-council assembled, is against Law; it restrains the Kings Subjects in their Liberties (which are their rightful Inheritance). Every one that comes to their Markets with Victuals, &c. (without which they could not sub­sist) must pay, &c. if not, they must be turned out, &c. Solve, aut abi: this is pro privato lucro. But that Ordinance for carrying their Broad Cloth before sale thereof to Blackwel-hall to be searched, was pro hono publico; and for that reason did oblige Strangers that did not bring their Cloth to be searched, lib. 5. Chamberlain of Londons Case.

Money cannot be raised or charged upon the Subject but by Act of Parliament. If the King himself cannot do it, I am sure no Corporation can, having no power, Authority or Jurisdiction, but what is originally derived from him. It's not the quantity of Money levied by them, but the manner of the raising of it by a Le­gislative Power unjustly usurped in their Common-council. It was not the quantity of the Ship-money, but the raising of it without a Parliament, which was the Crime. Quos una culpa nectet, eos una poena plectet; and that must be the Seising of their Liberties.

A Man takes two pence for every Barrel of Beer which shall be Landed at a certain place near to the Sea; this is not lawful, although it be upon his own Land, [Page 15]for this is to Levy a new Custom, which he could not do. Rolls Abridg. tit. Proe­rogat. fol. 571.

An Information was against Morgan, for raising of two pence for every parcel of Beer landed at Crockernepit in the County of Sommerset, near Bristol; he was found guilty, was Fined one hundred Marks, and imprisoned by Judgment of Court upon one of the Articles in Eire, That it shall not be lawful for any per­son to raise a Tax, Rate, or Custom upon the Subjects of the King, though on their own Land, P. 11. Car. 1. Rolls Abridg Tit. Proerogat. fol. 571

2. The Contriving, Imprinting, and Publishing of the Petition to be presen­ted to his Majesty, containing much seandalous Matter in it, and Re­slections upon his Government.

I agree, it's lawful for any Subject to Petition to the King for redress in an hum­ble manner, when he finds himself grieved; for access to the Sovereign must not be shut up in case of the Subjects distresses: but on the other side, it's not per­mitted under colour of a Petition and Refuge to the King, to make ill Reflecti­ons on his Majesty and his Government.

If a Scandalous Letter be sent and delivered to a person who received it, though the party which sent it did never publish it, yet it's punishable, for the King and Common-wealth are interessed in it: for such Letters do tend to the breach of the Peace, and to the stirring up Challenges and Quarrels; and therefore the Means of such Evils, as well as the End, are to be prevented. Hob. Rep. fol. 62. Barrow's Case.

If a Man Imports Books writ beyond Seas against the Kings Supremacy, knowing the effect of them, and offer them to any Subjects, he is within the danger of the Statute 5 Eliz. So of those that teach the Contents, and affirm it to be good; the same of him that conveys the Books secretly to his Friends, to perswade them to be of that opinion; the same of them that Print, and offer such Books within the Nation. Dy. fo. 282.

T. 6. Car. 1. An Information was Exhibited against Bonham Norton, his Son John Norton, Lee May, Tho. Smith, &c. for contriving a Slanderous Petition to the King, and for charging of the Lord Keeper with a Bribe for making of a Decree, and they were Sentenced.

T. 6. Car. 1. Doctor Leighton was Sentenced for Making, Imprinting, and Pub­lishing of a detestable Book, containing in it Treasonable Matter against the King, and inviting the Subjects to Rebellion.

Perkins was Sentenced to pay One thousand pounds, and Imprisonment during his life, because he dispersed a Seditious Letter against the Loane of King Charles the First; for the King sent to the Free-holders to lend to him Money. Huttons rep. fo.

Veritas convitii non excusat convitiantem a poena.

Penry for publishing Scandalous Libels against the Church-Government, was Indicted, Arraigned, Attainted, and Executed, P. 35. Eliz. inter Placita Goronoe in Banco Regis. New Book of Entries, fo. 252.

Williams a Papist, and Barrister at Law, Indicted of High-Treason, for wri­ting two Books, the one called Balaams Ass, and the other called Speculum Rega­le; because he affirmed the King should dye before 1621. and for saying that England was the Habitation of Devils; and that it is the abomination of de­solation: By all the Judges, it was High-Treason at Common-Law; for these words import the End and the Destruction of the King and his Nations; and [Page 16]that false Religion is there maintained; which is a motive to the people to Re­bellion. And although the Book was enclosed in a Box, sealed up, and conveyed secretly to the King, and never published, yet he was Attainted for High-Trea­son, and Executed at Charing Cross, P. 17. Williams of Essex. Case. Rolls rep. part. 2. f. 89.

In the time of Henry the Eighth, upon the Dissolution of the Monasleries, there was a great Rebellion in the North of England; the Dean of Windsor be­ing told of it, said, The King had brought his Hogs to a fair Market; and a Par­son hearing of it, said, Principibus obsta serò medicina paratur: because the words of the Dean had an ill Reflection upon the Government, and of his Majesties Management of the Affairs of State, they were both Indicted of High-Trea­son for speaking the words, and were found guilty; and the Dean was attain­ted of High-Treason; but the Parson, because he was so ignorant (as many times Ignorance is the best Sanctuary) that he did not know the difference be­tween Principiis and Principibus, he was Reprieved, and obtained his pardon of the King.

Every Libel against a private person deserves severe punishment, for it in­cites all of the Family, Kindred, and Society to revenge, and tends to Quar­rels: Verba movent litem, lis vulnera, vulnera Mortem; against a Subordinate Magistrate, it's a greater offence, because it scandalizes the Government; for Injuria crescit & decrescit secundum dignitatem personoe. But against the King, who is the Supream Head of the Common-wealth, Pater Patrioe, it's a Crime of the first Magnitude.

And how fatal and pernicious the publishing of Scandals and Libels have been to the Kings of England, and to their good Subjects, this Nation is very sen­sible: 7 E. 1. the King sent Commissions to all the Counties of England, to enquire de Spersoribus Rumorum: and 25 E. 1. Declaratio Regis missa fuit ad om­nes Comitatus Angliae, de Rege purgando de certis rumoribus iniquis contra ipsum ortis, &c. Rot. Parl. 7 E. 1. M. 13. Rot. Patent. 25 E. 1. pars 2. M. 7.

A Declaration of the King was sent to all the Counties of England, to purge him of certain false and unjust Rumours and Scandals raised against him.

Rex mandavit Majori & Vicecomit. London, Quod facta inquisitione de spars [...] ­ribus rumorum & Seditionem in Civitate, ipsas caperent, & in Prisona de New­gate detinerent: 20 E. 3. pars 1. M. 18. & 26.

The King Commands the Major and Sheriffs of London, that they make di­ligent inquisition of the spreaders of False Reports and Sedition in the City, and that they should seize upon them, and keep them in the prison of Newgate.

As for the Petition imprinted and published by the Major, Aldermen, and Ci­tizens, I hope it was acted by many of them out of a principle of Piety and Loyalty, but must needs be looked upon as an action of no great discretion in them, (to say no worse) for to make such ill reflections upon his Majesty, when the King by his Oath is bound to do Justice, and Nulli Negavimus, is one of his Royal Attributes.

Ob. But it hath been said, That no acts bind beyond the Corporation, but such as are done under their common Seal; therefore they cannot present a Clerk to a Living, but by Deed sub Communi Sigillo, 13 H. 8.12. nor make a Surrender, 33 H. 6.17. 34 H. 6.21. nor assign Auditors, 4 H. 7.17. 7 H. 7.9. Et hujus­modi, so their Laws and Constitutions made in their Common Council do not bind, because they are not under their Common Seal.

Answ. Excellent Logick; he must be a rare Chymist that can Extract such a Consequence from the Premisses. The Common Council of the City is a Parliament of the City; the Mayor is the King, the Aldermen the Peers, the Commonalty the Commons; and what they there Enact and Ordain is upon Record; Jones Rep. Fol. 540. Therefore those Con­stitutions and Ordinances by them there made, being Enacted in a Court of Record, if not Warrantable, make the more against them; and what is then by them Enacted is of greater Force and Puissance than if it had been under their Common Seal. If they appoint an Attorney at Law or Bayliff in their Common Council, they may justifie any Act which doth be­long to their Office, Sans monstrans de fait, &c. for it's to the Use of the Corporation, 12 H. 7.25, 26. They certifie their New Mayor Yearly in the Exchequer, because it's entred on Record, 13 H. 8.22. vide lib. 10. l' Guar­dians 8. S. Saviours Case. 14 H. 8.29. 12 E. 4.9, 10.

IV. If the Mayor, Commonalty, and Citizens have done any Act in their Common Council, whereby to Forfeit their Corporation and Franchises.

Where a Franchise is absolute and entire, and hath no dependence on another Franchise, then if any incident to it be Forfeited, the whole Franchise is Forfeited, 22 Ass. 34. Palmers Rep. Fol. 82. en l'Case d' Cor­poration d'Maydenhead.

But the Corporation of London is a Franchise, Court d'Entries, Fol. 527. Palmers Rep. Fol. 82. absolute and entire, and hath no dependance on another Franchise, therefore the Forfeiture of any incident to the Corpo­ration of London, is a Forfeiture of the Corporation.

To make Laws and Ordinances for the well Government of the Cor­poration is incident to every Corporation, Hob. Rep. Fol. 211. But the Corporation of London hath abused and mis-used this Power, therefore they have Forfeited their Power to make Laws and Ordinances, which is incident to their Corporation, therefore they have Forfeited their Cor­poration; the abuse of the Court of Pye-Powders, being incident to a Fair, is a Forfeiture of the Fair, 7 H. 4.44. otherwise of Toll, because it's not incident to the Fair or Market, Palmer, Ibid.

Object. There is a Stat. 7 R. 2. That the Citizens of London shall en­joy all their whole Liberties whatsoever, with this clause, Licet usi non fuerint, vel abusi fuerint, and notwithstanding any Statute to the con­trary, 7 R. 2. n. 37.

Answ. This is no Act of Parliament, but an Act of Grace of the King in Parliament.

For no assent of the Lords, &c. do appear, but only per dominum Regem & Consilium suum, which must be intended his Privy Council, if it had been otherwise, then Consilio Comitum Baronum, &c. as 35 E. 1. apud Carlioten Stat. de Asportatis Religiosorum, &c.

But admitting it to be an Act of Parliament, it doth only extend to such Offences and Crimes which they had committed or omitted, and not to those that shall be committed or omitted by them de futuro: If other­wise, [Page 18]it would have been against all Reason and Justice, and by conse­quence void; and that it must be so, read the Kings Answer to the Peti­tion of the Commons at large, Jones Rep. Fol. 241.

And if we look into all the Statutes which confirm the Liberties of London, viz. 14 E. 3. c. 1. which confirms all Reasonable Liberties. 2 H. 4. c. 1. the Liberties which have been duly used. 3 H. 5. c. 1. all, except such as are Repealed by the Common Law. 2 H. 6. c. 1. All Li­berties well used, and not Repealed by the Common Law: There is no Statute or Prescription Warrant any of their Actions but only such as are consonant to Right, Reason, and Justice.

Qui Muragium ad villam clandendam gravius ceperint quam concessum fuerit per Chartam Regis, perdant ex tunc gratiam suae concessionis & gra­viter amerciantur. Fleta, lib. 2. c. 43.

They which shall take more Murage than is granted to them, shall lose the Benefit of their Grant, and shall be grievously Amerced.

Le ley voet que chescan perdera son Franchise que eo misuera, Mirror. c. 5. §. 4.

The Law wills, that every one shall lose his Franchise which mis-use it.

And Bracton saith, that Libertates possunt amitti per abusum vol non usum, Bract. lib. 2. Fol. 56. lib. 3. Fol. 117.

And it's to be Observed, that where the Law saith, that they shall lose their Liberties or their Grant, it's to be understood of a Forfeiture of them for ever, Inst. Part 2. Fol. 222.

How the Mayor and Commonalty and Citizens of London have mis­used and abused their Franchise by Levying of such Sums of Money, to the Oppression of His Majesties good Subjects, is submitted to the grave consideration of all Sober and dis-interessed Persons.

A Leet was seized into the Kings Hands because they did take of the Offenders against the Assize of Bread and Beer 2 s. when they had no Pil­lory nor Tumbrel, Rastals Entries, Fol. 540.

In the Eires of the County of Cornwall, 30 E. 1. inter Placita Coronae & infra Hundredum de Keryer,} there was prescribed that in Holston Burgh they did take, de novo, of every great Beast, viz. Ox, &c. as well of the Buyers as of the Sellers, one penny, whereas they ought to take but one penny of the Buyer: And that they take of Merchandises exceeding 12 d. of the Buyer, ob. and of the Seller, ob. whereas they ought to take but ob. of the Buyer. Rolls Abridg. Part. 2. Fol. 523.

The Justices in Eire did enquire of those which did take superfluous or undue Tolls in Cities, Burroughs, or elsewhere against the common Usage of the Kingdom, Cap. Itineris vet. Magna Charta.

It's to be Observed, that if the Defendants in a Quo Warranto made default, their Franchises were seized into the Hands of the King, and the King was to be Answered all the Profits, and if they did not Replieve within the Eire, they lost their Franchises for ever. Iten. Canc. 6 E. 2.7.

Oh. If the Mayor and Commonalty and Citizens of London have com­mitted any Offence, the particular Persons which have transgressed ought to be punished, but the Corporation cannot, for no Trespass lyes against a Corporation, 22 Ass. 67. Brok. Tit. Corp. n. 43. 15 E. 4. 1. b. No Capias, no exigent against it, neither can it be Imprisoned, 21 E. 4.69, 70. 45 E. 3.2, 3. Neither can a Corporation be bound in a Statute or Recognizance, Moores Rep. 68.

Answ. His Majesty may proceed against them in their Politck capa­city, and so to a Forfeiture of their Corporation and Franchises; or in their Natural capacities against any particular Persons of the Corporation which are Offenders, and they shall be punished Secundum quantitatem & qualitatem delucti; according to the quantity and quality of their Of­fence.