I Have perused this Report, and do License George Grafton to Print the same.
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 [Page 4] 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 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 [Page 5] 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 [Page 7] 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 [Page 9] 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. Anno (que) 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 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; 'tis 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? 'Tis said indeed by [Page 13] 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. N o. 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: 'Tis 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 'tis 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 [Page 14] 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 should be forfeited, not that it should be seized into the Kings hands only.
Now, my Lord, where all the Franchises of a Corporation are forfeited, what is the Corporation? Truly, 'tis nothing, 'tis but a Name; a Corporation without a Power to act, is nothing at all: Indeed I do not find any Iudgment in a Quo Warranto of a Corporation being forfeited, yet, my Lord, it doth not follow from thence that this cannot be by Law; for many Quo Warranto's have been brought against London, and other places too, to out Corporations of their Franchises, but it hath always ended in submission to the King, and so they have been at quiet. All the Quo Warranto's in Mr. Attorney Palmer's time, after the Kings Restauration, against the several Corporations, they all submitted; and yet that was to question the very being of their Corporations.
Now, my Lord, pray consider a little upon the Rule of Law: It should séem very strange if a Corporation should neglect to come into Eyre, or into the Kings Bench the same Term that a Quo Warranto is brought against them, they must be outed of their Franchise for ever, as 'tis said, 15 Ed. 4. 6, & 7. And yet, when all the contempts and oppositions imaginable are found upon Record that this should not be a forfeiture, that seems absurd that a Neglect in Eyre should do it, but all the Oppressions and Offences in the World, when found upon Record, should not do it.
But, my Lord, the mischiefs that would follow from hence are very great: How many Oppressions and Offences would be daily committed, if every Corporation were a Franchise and Iurisdiction independent upon the Crown? and the punishment truly of some particular Men for those Offences, would not be adequate, where the power of offending and misgoverning should still remain; sure that were no adequate redress of such an inconvenience. And to this purpose, my Lord, I shall humbly offer a Case, and 'tis that great Case betwéen the Earls of Gloucester and Hereford, Hill' 20. Ed. 1. in B. R. rot. Wallie 14. 'Tis likewise in Riley's Placita Parliamenti 83, 86. The Case is this in short, They both claimed the Liberty of Returna Brevium, and they had incurred great contempts in refusing to obey the Kings Writs, and Iudgment was given against them, That the Liberty should be seized for this reason, which I think will go a great way in this Case, and for which I offer it, Quia puniendus est Dominus Libertatis in eo quo deliquit. I think, my Lord, as I said, that will go a great way in this Case, to shew the Reason of the Law.
My Lord, If the granting of too many and too large Franchises were a mischief, as certainly it was by Law, and as appears by the Commons Petitions 21 Ed. 3. rot. Parl. N o. 17. where they pray, That new and large Franchises may not be granted, because it tended to the overthrowing the Common Law, and great Oppression of the People. And the Kings Answer was, That care should be [Page 15] taken for the time to come. I say then, if this were such a mischief, that there ought not to be granted new and large Franchises, much more would it be a mischief if these Franchises should not be under the controul of the Law when they exercise such Oppression. And so my Lord I shall leave that point; for I think it will be pretty clear, that a Corporation may forfeit their being of a Corporation.
2. I shall next than consider, whether the City of London be in any other plight than any other Corporations. I think truly there is no difference at all. Now this Question doth depend upon what they have set forth by their Plea. And that is the confirmation of Magna Charta cap. 9. Civitas London habeat omnes libertates suas antiquas & consuetudines suas. And then their Act of 1 E. 3. upon which my Lord Coke in his 4 Inst. 253. says, that the Franchise of this City shall not for any Cause be seized into the Kings hands. And then theirs of 7 R. 2. which says, that the City shall enjoy its whole Liberties, Licet usi vel abusi. This is their Foundation upon which they would distinguish this City from all other Corporations. Now as to these things, I give these Answers.
First for Magna Charta, that plainly is no more a confirmation to them than 'tis to other Cities and Corporations. For not only the City of London is named to have its ancient liberties and customs preserved, but 'tis likewise Omnes aliae Civitat', &c. And all Cities, Burroughs and Towns, and the Barons of Cinque Ports, and all other Ports, should have all their Liberties and Frée Customs. So my Lord Coke agrées it in his Comment. And in what he cites out of the Mirror of Justice, and other ancient Authors of our Law, they should enjoy their Franchises which they had right to by lawful title of the gift and confirmation of the King, and which they had not forfeited by any abuse. So that the Act which confirmed them did not purge former forfeitures, much less did it license other abuses.
Then for their Acts of 1 E. 3. and 7 R. 2. I shall humbly offer this, That as they are in Truth no Acts of Parliament at all, so they will not concern this Question, whatsoever my Lord Coke says concerning them. But I shall give some instances before these Acts, to shew that they never had such an unquestionable Power as they now dream of, and then some instances in after times, that there either were no such Acts, or no such sense at least is to be put upon them as they have strained to make.
First it appears 15 E. 1. that the Franchise of the City of London was seized into the Kings hand, and Johannes de Britton was made Custos Civitatis London, who was no Freeman; and this implies that the Franchise was seized into the Kings hands, for they had a power to choose de seipsis by Charter from King John a Citizen to be a Mayor or chief Governour, but here was another Governour appointed them.
Then Rot' Pat' 26 E. 1. Rex pro bono servicio Civit' London' reddit eis Civit' suam London habend' dict' Civibus ad volunt' Regis. Teste Rege. So that both the City and all its Franchises were seized at that time; for he restored the very City of London to the Citizens [Page 16] habend' during his Will and Pleasure. Thus my Lord it stood in the time of E. 1. Then in the time of E. 2. seized again; 14 E. 2. memb. 21. of the Pat' Rolls in 21 Rex dimisit Civibus London' Officium Major' Civitat' London', 15 E. 2. Rex dedit licentiam eligendi Major' London'. And in the second part of Pat' Rolls 15 E. 2. m. 5. The King recites, That whereas in the Fourtéenth year of his Reign he had replevyed to them the Office of Mayor Us (que) 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 [Page 17] 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. 'tis 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 Pa [...]ents, which had been primo R. 2. Besides further, there never was any Patent granted in pursuance of this Act: And yet 'tis 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 'tis 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 [Page 18] 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 of all, the whole Corporation is fully represented by them, notwithstanding the disparity of number set forth in their Rejoynder.
2. Again, All By-laws and Ordinances made for the good Government and Order of the City, are certainly the Acts of the Corporation; but the sole power of making those Laws is in the Mayor, Aldermen and Common Council, and therefore sure the whole power of the Corporation is in the Common Council.
3. They have the sole power of the Corporation-Seal. They can bind all the whole Corporation by any alienation to, or charge upon their Inheritance; and by consequence they may surrender all or any of their Franchises, and then as I said, they may forfeit them.
4. They have pleaded that there hath been time out of mind a Common Council, consisting of the Mayor, Aldermen, and two hundred and fifty Citizens, who are called the Commons of the City. So that it shall be intended now, that as they have prescribed for it as incident to their Corporation, it was part of their Original constitution to be thus represented by them, and ruled and governed by their Laws: But there is another reason for it, and that is, that it is an inseparable incident to a Corporation, implyed in Law without grant, that they have a power to make By-Laws to bind the Corporation, without which there were no government in a Corporation; and therefore a mis-user of that power must be a forfeiture of their Corporation, because 'tis a breach of their Original Trust: 22 Assis. pl. 34. there is this Rule given, and a true one it is, Where there are many Franchises granted which do not depend one upon another, there the mis-user of one is a Forfeiture of that one which was mis-used; but where there are several parts of a Franchise depending all upon the said Franchise, if any part be misused, the entire Franchise shall be forfeited. As for instance, if a man have a Fair, a Court of Pypowders is incident to it, the misuser of that Court of Cypowders, is a forfeiture of the whole Fair it self; for where any part is abused that is incident to an entire Franchise, that abuse forfeits the whole. And this is the Opinion of Palmers Reports in the Case of the Corporation of Maidenhead, where 'tis doubted whether the Market was forfeited for taking too much Toll, because the Toll was not inseparably incident to the Market, and so was not dependant upon the entire Franchise, and there the rule is taken as I have said before, that the mis-user of a part of an [Page 19] entire Franchise, or a power that is incident to it, is a forfeiture of the Franchise.
Then my Lord, if they cannot forfeit here, the whole power of the Trust of the Corporation is reposed in them, and may be misused by them, to the Oppression of the Kings Subjects, and there is no remedy, if they shall not be punished at all. For it is much harder to say, that several Acts of all the particular persons, should forfeit the Corporation, than that their Ioynt Act should do it. But this my Lord, is an Act contrary to the trust upon creating the Corporation, and may be a mis-user to the prejudice and oppression of all people; and if this should not forfeit the Corporation there is no remedy at all, but the power remains of oppressing as it did before.
Now my Lord, I think, with submission, I have made it pretty plain; and as they are not distinguished from other Corporations in point of priviledge as to forfeitures, so this is their Act, and shall bind them, being done by their Representatives.
IV. Then the fourth point will be, Whether these Offences set forth in the Replication are Forfeitures?
1. The first is, the making of that Law in the Common Council for the levying of sums of mony upon the Kings Subjects, and the actual levying of those sums accordingly; and this they justifie under their prescription to have reasonable Tolls, as they set forth in their Pleadings, from all Persons that come to their Markets to sell Provision there, and power to reduce their Tolls to a certainty by an Act of Common Council. This is their Iustification; so that, my Lord, the first thing to be considered is,
I. What right they have to these Tolls or Sums of Mony assessed by the By-law; and then
II. Whether if they have no right, their taking upon them to make a Law be a Forfeiture?
For their Right, that depends upon a prescription to have reasonable Toll, as they set it forth, and this as they have pleaded, it appears to be no Right at all; for a Prescription to have Toll and Tollage, not shewing how much in certain, is void; for reasonable Toll is not incident to a Market, but the Party has it by the Kings Grant, and so 'twas adjudged in this Court, Mich. 39. & 40. Eliz. cited by my Lord Coke in his Second Inst. 220. So if the King grant a Toll, if he do not in his Grant ascertain how much shall be taken for Toll, that Grant is void: And so is the Prescription too, as you may sée in the Corporation of Maidenhead in Palmer's Reports, fo. 79. grounded upon 9 H. 6.45. & 11. H. 6. 19. and so he cites the Opinion of Popham in the Case of Heedy and Weeldhouse, for no Subject can prescribe to have Toll, but by the Grant of the King.
But, my Lord, this is not properly a Toll neither, nor in the nature of a Toll; for that is always paid by the Buyer, and never paid before a Sale; but here all that comes to the Market, whether they buy or not buy, sell or not sell, they must pay by this Law. [Page 20] My Lord, I confess there may be a custom for Persons to pay for Standings in a Fair or Market, as that Case was 9 H. 6. 45. but yet that must be prescribed for in a certain Sum, which is not done here. And this customary Payment is in the same nature as a Toll traverse, or a Toll through, which cannot be in an uncertain Sum; for they are all by prescription, and a Grant of them now uncertain would not be good.
But, my Lord, however, Iudgment upon these Pleadings must be given against the City; for either the Prescription, as they have set it forth, is good, or it is not good; if it be good, then the Traverse that is taken is well taken, to wit, that they have no such Custom, and they ought to have taken issue upon that which they have not done; for, my Lord, they have taken issue thus, That, time out of mind, they have had reasonable Toll of all Persons coming to the Market to sell their Provision, without tying of it to the reasonable Toll assessed and reduced to certainty by the Law; and this is naught; for tho they had a reasonable Toll in general, taking the Prescription to be good, yet if either that reasonable Toll in the use of it were not taken in that manner, or to that value that they 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. 'Tis the usurping of a Power that they neither can have, nor have by Law.
II. 'Tis a Breach of the Trust annexed to the Corporation; for 'tis 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, 'tis a punishment to others that did not offend; and if it be kept, the it be forfeited, 'tis no punishment to them that do offend: And 'tis a Question whether a Market may be forfeited for taking unreasonable [Page 21] 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 'tis done by them as a Corporation; 'tis 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 'tis in the nature of an Appeal to the people: 'tis unlawful to Print any mans private Case, while it is depending in any Court of Iudicature before it comes to Iudgment, because 'tis 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 abs (que) 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 [Page 22] 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 abs (que) 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 'tis 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 'tis 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 Charter. Therefore upon the whole matter, I do humbly pray your Iudgment for the King, that they may be outed of their Franchise of being a Corporation.
Sir George Treby Recorder for the City.
THE first thing that I shall, I hope, maintain, is,
I. That a Corporation, or the Being of a Body Politique it not forfeitable.
The Nature of a Corporation in its Existence, Powers and Actions is to be considered.
A Body Politick or Corporation is created by the Policy of Man, 1 Inst. 2. The Persons Incorporate are created a Body, and are of capacity to take or grant, do, or act, according to the Powers and Authorities in their Creations given them, and to no other purpose, only a Capacity, and not properly a Franchise.
1 Inst. 250.
Brook therefore in his Title of Corporation, makes his Title, Corporation or Capacity.
2 Bulstrode 233. The Body is invisible, therefore cannot appear in Person.
Dissolution of a Corporation there may be: As where the Persons incorporated all dye, Corporation of necessity is thereby dissolv'd.
1 Inst. 13. b.
Rolls Ab. 1. 514.
But no Book or Case mentions Dissolution by Forfeiture.
In the time of H. 8. when the Corporation of Monks, Nuns, and other Religious Houses were dissolv'd,
Had it not béen a very easie way, if this Doctrin of dissolving by Forfeiture would have done it, thereby to have effected the Kings purpose?
It was but to have issued out a Commission, and thereby find but one illegal Act or Miscarriage done by the Corporation, and thereby the Corporation dissolved.
But in Henry the Eighth's time, or afterwards, the Surrenders made by Corporations was of their Lands, not of their Corporations or Bodies Politique, as appears
2 Anderson 120.
Dean and Chapter de Norwich's Case, 3 Rep. 74.
For tho they surrendred their Church, and all their Possessions and Franchises, yet the Corporation remain'd, not thereby dissolv'd.
Fullcher and Heyward, Jones 198. Palm. 491. Davyes Rep. 1. b. And Encounter le Opin. Dy. 273. 282.
And therefore to this time, viz. 3 Car. I. when these Cases were adjudged and argued, the Law was taken to be, that a Corporation could not be dissolved by Surrender.
And the Statute 27 H. 8. 31 H. 8. 34 H. 8. for dissolving the Monasteries, none of them mention Surrender of the Corporations.
And the the word Forfeiture be in those Statutes, thereby is not meant forfeiture of Corporation, but forfeiture of the Lands of the Abbots by Attainder, viz. Abbots of Glassenbury, Colchester, and others, attabited upon the matter of the Kings Supremacy.
And so it appears, Rolls 2 Rep. 101.
But if it should be admitted, That a Corporation may be surrendred, and thereby extinct and destroyed, it is no consequence that they may be forfeited.
For there are many things surrenderable that are not forfeitable: As Annuities granted pro Concilio impenso & impendendo, which are persnal Interests, and so fixed to the Person, as not transferrable by Grant, Forfeiture, or otherwise.
Much more then of a Corporation, which is far from being grantable or forfeitable; it is the very Capacity or Existence, and inseparable in its Nature from the Persons incorporated.
Worseling Manings Case, Lane 58. Rolls, Abr. 1. 195.
Alien obtains Letters Patents of Grant of Denization, Proviso, That the Grantée do his Legal Homage, and be obedient to the Laws of the Kingdom.
He never doth his Homage, nor is obedient,
He shall not hereby forfeit or lose his Denization or Capacity that he hath granted him by his Patent.
II. That this Information now brought is insufficient, and no Judgment against the Corporation can be given upon it.
It cannot be maintained against the Corporation as now brought, but should have béen against the particular Persons.
Rex vers. Cusack, Rolls, 2 Rep. 113. 125. Palm. 1.
In a Case of great Authority, and upon a Writ of Error out of Ireland upon a Iudgment in a Quo Warranto against the Corporation of Dublin, a Quo Warranto was brought against Cusack and others, Aldermen of Dublin, who pretended to have Priviledges, and a Guild, and to be a Corporation; and this, I presume, is for their being a Corporation; for there is a Cur' advisare vult upon that, and so 'tis not put in the Case; but 'tis also brought for several Liberties that they did pretend to claim, that they only, and no others, should sell and buy all Merchandizes there, and no body should buy of another, or sell to another, but to them; that all Merchandize should be brought to their Common Hall there, &c. Now as to those Liberties, they are forejudged, that the Liberties should be seized, and they outed: As to their claiming the Corporation, there is a Cur' advisare vult, so the Case is in Palmer; but in the other Book, Rolls 115. there 'tis agreed, If a Quo Warranto be brought to dissolve a Corporation, it ought to be brought against particular Persons; for the Writ supposes that they are not a Corporation, and 'tis to falsifie the Supposal of the Writ? to name them as a Corporation. Now here this Writ supposes them to be a Corporation, [Page 25] or else they could not be Defendants, and then it comes and falsifies that supposal, by assigning that they are no Corporation, nor ever were; or if they had, they have forfeited it; and so all the foundation that this Writ stands upon is destroyed. My Lord, in this Case of Cusack I am assisted further with a Report of it in my Lord Chief Iustice Hale's Book; a Report of very great Authority with all Men of our Profession, and there he says expresly, If a Quo Warranto be brought for the Vsurping of a Corporation, it must be brought against particular Persons, because it goes in disaffirmance of the Corporation, and Iudgment shall be given, that they be outed of the Corporation; but if it be for Liberties that are claimed by a Corporation, it must be brought against them as a Corporation.
'Tis in my Lord Hales Common Place Book, which is in Lincolns-Inn Library, fo. 168. placito 7. My Lord, this is our very case; if you go about to say our Corporation is forfeited, or must be dissolved; nay more, you say it has either never béen, or by forfeiture it is lost so long ago, then here is nothing can come before the Court. This Information is brought in dis-affirmance of the being of the Corporation, and therefore there must be set up some body capable of being a Defendant in such a Suit, and that is, particular Persons, which ought to have béen named, as was in that Case of Cusack: For as the Iudgment of Ouster of particular Liberties given against particular Persons will not bind the Body of the Corporation; so the Iudgment of not being a Corporation will not be good to charge or oblige particular Persons, unless it be given against particular Persons that usurp the Corporation. The Individual Fréemen of London cannot possibly be bound by this Iudgment; for they are not here before you, nor were they ever sued: For it is the Corporation that is here made Defendant; and I do not consider the number that make up that Body, that London's being populous alters the case; for the case is the same if it were the Corporation of Quinborough, or any other petit Corporation. Suppose 20 Men be a Corporation, or pretend to be a Corporation, and you come to enquire by what particular means these Men pretend to be a Corporation, or as the words of this Quo Wartanto are, usurp to be a Corporation, you must not say, that they are one, and then say they usurp it; for 'tis not the Corporation that usurps to be a Corporation, that is impossible, but 'tis the particular Persons that usurp to be the Corporation, when indéed they are none. A Corporation may usurp a Market, or they may usurp a Leet, but they cannot usurp themselves.
It appears, my Lord, in Mr. Townsend's Book of printed Presidents, a laborious thing it is, and wherein he hath collected all the Presidents he could méet with of Quo Warranto's, and there is but one in all that Collection that was brought against any Persons upon the score of their being a Corporation: And what is that? how was it brought? not against the Corporation that was, but against the Corporation that never was, that is to say, a parcel of People that took upon themselves to be a Corporation, when indéed they were not, and that is but one single President neither. In Coke's [Page 26] Entries, 527. Tit. Quo Warranto, the King against Helden and other Burgesses of Helmesly for usurping to be a Corporation, by the name of the Burgesses of Helmesly: How does the Attorney General there bring his Writ? he brings it against particular Persons. My Lord Hobart, who was then Attorney General, never thought he could have maintained his Quo Warranto, or expected Iudgment against them, if he had brought it against the Burgesses of Helmesly generally, and then have said, that they were no Corporation; but he brings it against those particular Persons, and thereupon they come in and disclaim their being such a Corporation, and the having the other Liberties; and the Iudgment is, That of those Liberties those particular People should be ousted, and should not intermeddle with them.
Now, my Lord, what Iudgment can be given in this Case, that the Mayor, Commonalty and Citizens shall not intermeddle with the being of Mayor, Commonalty and Citizens? 'Tis a very reasonable Iudgment that Helden and those particular Persons should not intermeddle with such a Liberty, or be in such a Corporation; but if such a Iudgment he given against the City here, that would be as much as to say, That you have never béen what you are, or you shall never be what you are, that is the English of it.
And, my Lord, I am sure as there never was but one Quo Warranto that we can find any printed President of against the being of a Corporation, so that very President is not against those that really were so, but particular Persons that usurped to be so. And if you search all the Records of this Kingdom, and all the Books in all the Offices, you will never find any that is brought against a Corporation, for being a Corporation, upon pretence that they might be made none by a Forfeiture; and no Prerogative of the King shall extend to excuse this, but his Action shall abate, if it be not right brought, as well as the Subjects, and so is Plow'd Com. fol. 85.
Further, my Lord, I have another Authority in this point, and that is in the Case of the Corporation of Maidenhead, which hath béen so often cited by Mr. Sollicitor, and it is in Palmer, 80, 81. where 'tis said, When the Attorney General hath supposed them to be a Corporation, it is not usual to plead them to be a Corporation; otherwise if he had questioned them as Inhabitants of such a Town, then they ought to enable themselves: Those are the words of that Book: And what can be more plain? Here the Attorney General supposes us to he a Corporation, his Replication flies in his own Face; and he having supposed it at first, he is bound not to question us for our being a Corporation at any time after. As to the business of forisfecerunt, 'tis a strange and a new word that never came into any Quo Warranto before, that I know of; but we will accept the new word, but not the thing, and that they have forfeited by such and such Acts; this sure will be very hard upon us; for if it be a Forfeiture, it must relate to the time of the thing done, to the time of the making the Act of the Common Council, to the time of the Toll levyed, or to the time of the Petition; and if it do so, it must relate like a Forfeiture for Treason; it must reach all mean Acts, [Page 27] all the Leases that we have made since are gone; all the Iudgments that we have given in any Cause are Coram non Judice, and void; all the Acts of the Corporation are overturned by this forfeiture, and we have béen under a vast mistake all this while. We have had no Mayors nor Sheriffs, no kind of Officers, no manner of regular and legal procéedings; but we have béen under a great mistake ever since this money was ordained or levyed. We have forfeited all; and that it is so, is plain, because in all Quo Warranto's wherein persons are convicted for usurping of Liberties, there is a Fine set upon them for continuing that Vsurpation, and reason good; then if it be an Offence for continuing the liberty, we must be fined for doing it ever since the Forfeiture, when if Mr. Attorney General's Rule be right, there has béen no such Corporation; but we ought to have discontinued all our acting as a Corporation, and laid it down, and so every step that we have taken since hath béen irregular, and every Act void.
If so be an Action be brought against Baron and Feme, and the Plaintiff should in his Replication say, they were divorced several years before, has he not undone all his pleading? Here then is our Case, Mr. Attorney General admits us to be sueable, and yet charges us to have no capacity to be sued. I do implead you, but you have no right to be impleaded; here he brings us into Court, and when he has brought us here, he quarrels with us for being here; he makes us Defendants, and then questions whether we ought to be so; and so his great Charge against us is, that we are what he would have us to be, and what he hath made us to be; for if a Month before the Information, the Corporation was not, but the very being of the Corporation was usurped, how come we at the Months end to be Defendants? Here comes a new creation interposed in that time, and makes us parties sueable in the Court, when by the Charge in the Information we were not so a Month before.
And then my Lord the Information is not quite so had, but the Replication is worse; first he takes Issue that we never were a Corporation at all; and the next thing is, if ever you were a Corporation, you have ceased so to be, because you have forfeited it so and so several years ago. This is just then to put a common Case (and I confess a very familiar one it is) If I should being an Action against a man, and when he hath pleaded, I should by way of Replication set forth, there never was any such man as the Defendant, and take Issue upon it; or if there were, that he was dead Ten years ago: And yet this is the substance of Mr. Attorneys Issue, and his Replication.
My Lord, the Authorities before cited in Palmer, Cokes Entries, Rolls, and my Lord Hales Common-place-book, are not all; for I have some other that never saw the light in Print yet, and that is the Case of the King against Bradwell and others, Trin. 18. of this King. A Quo Warranto was brought against them for usurping to be a Corporation, or Company of Musitians; it had been [Page 28] a strange thing if the Quo Warranto had been brought against that Corporation, and then the Attorney General had said they were no Corporation, nor never were; there they did think best and fittest to go against Bradwell, and the rest, and that by name and only so, not against the Body Corporate. So in that Case of the Corporation of Worcester, which was lately tryed before your Lordship in this Court; When the Quo Warranto was brought against such men for usurping to be all Aldermen and Common Councilmen, if the Attorney General had once called them Common Council-men, it had béen a great repugnancy for him afterwards to say that they were none, or if they were, that that priviledge of theirs was lost so long ago. So in the Case of the Quo Warranto against the Bermudas Company; it was against a Corporation, and against particular persons by name both. These things have béen considered, and doubtless they have gone on in an ordinary way. I must confess, I was not privy to that particular Case, but by the Report of that Case, which I have seen, I have been informed that the Corporation never appeared; for they said, 'tis not sense for us to appear; for it being a Question by what Warrant we are a Corporation, it is not the supposing us a Corporation that do usurp, but the particular persons that do usurp, if it be at all usurped. Now my Lord if that had been a regular Suit, no doubt but there would have béen Iudgment against the Corporation, which there was not. And certainly the Replication of Forfeitures was not good against the Corporation, but against the particular persons only.
All Mr. Solicitors Authorities for Seizing hol [...] [...]ue, if the Corporation would never appear: And what is the reason it should be brought against J. S. and J. N. but because Corporations do never appear in such a Case, in regard it were not congruous they should appear; for the Quo Warranto must intend it so, That they were not a Corporation in being, by implying a Forfeiture. Then say I, no Iudgment at all can be given upon this Score, Non admittitur exceptio ejusdem rei cujus petitur dissolutio, a man shall never be admitted to controvert that to be in being, which he himself desires should be destroyed, and so has allowed it to be. Shall Mr. Attorney be admitted to deny the supposal of his own Writ? and truly I think I might very well leave this part of the Case, and this point, to Mr. Attorney General himself; for if he will have any thing to be answered by us, he must maintain us to be a Corporation capable of answering; and so I have reason to expect that against his own Replication he will be pleased to support the being of our Corporation, and so dismiss as hence.
II. My Lord, I have done with this Point, and now I come to the Replication, which indéed is a kind of a new Quo Warranto, for it brings in new matter, and therein they do charge two Forfeitures, the one is by reason of the abuse of the Market, the other is by reason of the Petition: My Lord, I shall answer both of them, That we were seized of the Market, that is pleaded and that is agréed: That we [Page 29] were seized of Tolls, and were to have reasonable Tolls, that is agréed too; that there is a custom in London to have Common Councils, and that this was by Common Council is agreed; all this is agréed by the Demurrer; that this Toll (though by the way I must confess, and will agrée with Mr. Sollicitor, that it is not properly to be called a Toll; for a Toll is only for Goods sold; and when they are sold, in recompense for the Officers attendance for the testification of the Contracts, and the entring them in their Books. But I agrée, this is not such a Duty for Goods bought and sold, but it) is for the accomodation of Persons repairing thereunto for their Stalls; and if I would call it by any particular Word, I had rather call it Stallage than any thing else: It is for those Accomodations which we have béen at vast charge in preparing and providing, and for the maintenance of requisite Officers, and for the cleansing of the Markets. Now Mr. Sollicitor objects, That we cannot prescribe for a Toll uncertain, and he cites the Case of Murage, and the like; and so I must confess, where Murage is granted, 'tis commonly a thing certain, so is Pontage, and the like; but I believe (if I had thought that it would have béen a point insisted upon) I could have brought you Instances where Murage, and such like things, have béen granted in general, and they would have béen ancient ones indéed: And there is a necessity for it in some cases; for when a Town will repair its Walls, the charge may be greater or less, as the particular Accidents may be, and so perhaps a certain Duty would not do it. When a Wall is to be built, there the Duty may be certain; but when it is built, to kéep it in Repair, the Duty of Murage may be uncertain, according to the charge; and if the case be not so, it will come little to our purpose, which is a Duty upon a great and a continuing charge. I will name him some things that he must agrée, and I know he will grant, are uncertain, as Pickage and Stallage, which are Duties for picking in my Earth to dig holes for the Posts of Stalls to be fixed in: now there can never be, nor ever was any circumscribing in those matters, for circumstances in every of those cases must govern it. If I have occasion for my Stall to use a foot of ground, one sort of Sum is necessary; if ten feet, another Sum; it ought to be equal indéed, but it could never be good if it were limited to a 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, 'tis 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 [Page 30] 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. N o. 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 'tis 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. 5 0. 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 [Page 31] 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 'tis 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 'tis 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 'tis in 2 Bulstrode, and also in Moor, it was the Case of the Bellman of Litchfield: A Prescription is made, that the Corporation of Litchfield hath a Market, and they ought to repair the way to it, and to appoint a Bellman that should sweep the Market-place, and that for this the said Bellman, time out of mind, had taken of those that brought Corn to the said Market, and opened their Sacks to sell a pint of Corn, if but a Bushel or under, if more a Quart. So that if it were opened and not sold, yet he was to have that Duty, and that Prescription was adjudged to them by all the Iudges, and yet it does not appear there, whether the repairing [Page 32] that way cost them 5 s. or 5000 l. and yet by intendment they would not account it unreasonable, though it might have been urged it was very unequal; if they could take a Pint for that which was under a Bushel, perhaps they would take by that means, half of what the party bought; but if there were fifteen Bushels they had but a Quart, and this was objected as to the inequality of it; and yet they all passed over that by a reasonable intendment, and would not deny the Prescription to be good. And the Case of Cranage in Dyer, and the Case of 21 H. 7. 16. are admitted to be good Law, where the Town of Gloucester prescribed for a Toll of Boats passing by the River near the Town.
Now my Lord for ours, there was very great reason to induce it, the great alterations that were made in London by the Fire; and it was not the first time that London was burnt: And if there should be War, and so great Alterations and Confusions, there were great cause that the City, that lays out great Sums, and must be at such a publick Charge, should not be losers by it.
And we do set forth more than they do in the Case of Litchfield, that we provided the Market-places at our own charge; and if they will use them, they must expect to pay some compensation for it; that we do kéep Officers, and pay them for cleansing and kéeping Order in the Markets: And above all that, we provide Standings and Stalls, and such Accomodations, and that I am sure is a Provision no Lord of a Market is bound to make unless he will, and therefore the Market-people that are accomodated by it have great reason to pay for it; and we pay all the Taxes for the Market-places, for the ground is ours; and that is not alledged in the Pleading indéed, but it must be implied, because we pay the Taxes, and they that have the Standings are not lyable to pay the Taxes: And so is the Iudgment in Rolls, 2 p. 238. and the 2d Abr. 289. And in the Case of Cusack Iustice Dodderidge says, That the redéeming of one Fair from the Abbot of Westminster cost the City of London 8000 l. for he had a Fair at Westminster, and a Market for 40 days, and that during that time no Sale should be in London, or the places adjacent, and a great Rate it was if it were so. The measure of a Toll is according to my Lord Coke 2 Inst. 58. when the thing demanded for Wares or Merchandizes does so burthen the Commodity, that the Merchant cannot have a convenient Gain by Trading therewith; and thereby Trave is lost or hindred, then 'tis an evil Toll. But here indeed the Market-people are better accommodated than ever they were; and Trade is so far from being discouraged, as that it is increased, as is implyed in the Replication; for 'tis said, we receive 5000 l. a year, which if it were so unequal, would not certainly be paid, nor could be, if there were not great Trade there. So that the increase of Trade is the thing complained of in this Quo Warranto. And the truth of it is, I have examined and looked into the Fact of these things, and there is nothing in this By-law, but what was really anciently paid, except only in one Instance, whether [Page 33] it were 6 d. or no, that was paid when a Cart was drawn by two Horses, which now is but 4 d. and if we have increased the Toll, which I doubt whether it be so or no, 'tis only in a very trifle.
Now my Lord, this Case I think is a stronger Case than that in 5 Rep. the Chamberlain of London's Case, there is no consideration of Stalls, or cleansing the place, but only they had an Officer to search and view, and that was a new appointment of their own; they could not prescribe for it, but it was thought a penny was a reasonable recompence, and the Subject had a benefit by it; and if he would bring his Cloth to London to be sold, he should come thither to have it viewed, and give a recompence for it. Now London is all Market indeed, every Shop is a Market; and it hath been well said of the Iudges several times in Westminster-Hall, that London is the Market of all England, and there is never an Acre in England but is the better for that.
As to the Imposition upon Coals, that is but an inducement, and an inducement is never to be relyed upon; 'tis not to be stood upon. And Mr. Solicitor did very honourably decline it, and did not make any thing of it, nor trouble the Case with it.
When the City did make this Act of Common Council, they did consult with their Counsel for matter of Law, and with their Officers and Fellow-Citizens for matter of Fact, and did adjust these rates, and enacted them to be paid, they being reasonable ones, and according to the ancient Vsage; but if they were mistaken, it will be no cause for you to give Iudgment against them for many other reasons; As first, you cannot judge this to be unreasonable. I have not heard one word said that this is an unreasonable oppressive Toll. Here is money levyed, what then? If it be a reasonable sum, 'tis not so great, it does not deserve the name of Oppression. I say 'tis not so great an Oppression, if they should have been mistaken in the form of instituting the levying of it, if they might have done it under their Common Seal, and now they have done it without that by Act of Common Council. Nay, it does not deserve that you should judge it unreasonable; you cannot do it here, for the considerations are meritorious and equivalent to it, the great charge they were at in Building, and they still daily are at in cleansing and repairing and providing Stalls. But however, the Case is not so disclosed here, that you can judicially determine this to be an unreasonable Toll. According to the Rule in Cokes Magna Charta 222. the Toll of a Market need not be certain, only it must be reasonable. And what shall be deemed reasonable, the Iudges must determine if it come judicially before them. So shall reasonable Customs, and reasonable Fines, and reasonable Services, and reasonable Time to remove Goods, and the like, they must be judged by the discretion of the Iustices upon the true [Page 34] state of the Case before them. Now this Case must have all its Circumstances stated and agréed by Demurrer, or found by Verdict. And so is 4 Rep. 27. b. and Hobart 135. and 174. as in the Case of Copyholders Fines, the quality and yearly value of the Land must appear, or else there cannot be Iudgment whether it be reasonable or no. In the 13th Report fol. 3. & Croke Car. 196. where the Question was, Whether the Lord of a Mannor might assess two years and an half value of Copyhold Lands, according to the Rack-Rents for a Fine upon Surrender and Admittance, and upon non-payment to enter for the Forfeiture; as suppose Land, it be rented at 20 l. a year, here is 50 l. demanded for admittance; there it appeared judicially that it was unreasonable, and so it was adjudged, because the value was certain. But who can here say, whether the providing of Markets cost 5 s. or 500 l. it is that estimable. Perhaps we have over-bought all these Tolls that they call unreasonable; we over it to be reasonable, the Demurrer agrees it to be so, and you must intend it to be so, unless the contrary be set forth clearly in its circumstances; for he that will have a Forfeiture, must shew the circumstances to make it out.
My Lord, Another thing is this, to answer Mr. Solicitor in that point, I say, an unreasonable By-law is no reasonable cause or colour for forfeiting a Corporation, admitting it to be unreasonable, though I grant it not. My Lord Hobart in Norris & Staps Case, Hob. 211. says, that though power to make Laws is given by special Clauses in all Incorporations, yet it is needless; for that is included by Law in the very Act of Incorporating. For as reason is given for the natural Body for the governing of it, so Bodies Corporate must have Laws as a Politick Reason to govern them. Reason is a faculty in them as 'tis in a man, and may err; and therefore says he, if the King do grant Letters Patents of Incorporation to persons, and he doth thereby make Ordinances and By-laws himself, they are subject to the same construction and rule of Law, as if they were made afterwards by the Corporation. For the King can no more make an unreasonable By-law than a Corporation; but if the King do, shall that affect the Corporation, and make the Corporation void by way of repugnancy, or an instantaneous breach of Condition? no it shall not. And therefore as they may receive unreasonable Rules from the King, without defeating of the Corporation, or having their being thereby vacated, so they may make unreasonable By-laws without the same danger of destroying the Corporation. The cases are very many wherein By-laws have been judged unreasonable; the truth of it is, there is a great misfortune in the perusing and making of those By-laws; by some means or other there is something discerned that still proves an Exception to it, as we see in the Case of the Carmen and the Woodmongers; their By-law was made and re-made, and corrected [Page 35] again and again, before it would be made to hold Water in this Court. So in the Taylors of Ipswich's Case and Bradnox's Case, which was here lately. All these have béen adjudged void; but what then? In all these Cases it was never said, hereby your Corporation is destroyed, you have erred in making a By-law, and therefore you have lost your being of a Corporation. Besides, if there were but a colour for it, and it were any thing tollerable, surely that were enough to make us excusable in such a matter. If it has béen received as we agrée it has, the Officers are Trespassers, every individual of them are suable, and any man may bring his Action against them. But they that come to the Market think not fit to complain; if they did not like the Market, they would not come at all; and if they did not like the Payment, they would not come neither; and there is no levying of any thing unless they do come.
Now, my Lord, I will admit the levying and the receiving, and yet I say this is no forfeiture; for here is a mistake of Law, or a mistake of Fact, by colour whereof Mony is received: This by no means will work a Forfeiture of a Corporation, for at that rate every Penalty that has béen levyed by a By-law will be adjudged a levying of Mony without Law, and so forfeit the Corporation, which has not béen done in other cases of By-laws, and those much worse than this; because most of those By-laws were made for levying Mony upon Men for exercising a Trade; and 'tis much more to say that you should levy such Sums of Mony upon every stroke of honest industry, whereby a Man gets his Livelyhood, than that you shall pay so much for your accomodation in my ground for the better vending your Goods. This hath béen held good in some cases, but in others it hath béen held naught; and this hath all béen received and levyed to the use of the City too, and so 'tis a levying of mony, whereby they have a great advantage; nay, 'tis worse still, because it is imposed by force, and recovered by force; but here 'tis a voluntary Penalty, no force, no compulsion, only the being removed from their Standings, no other Penalty, no Imprisonment, or the like; but if you do not like the conditions, you may be gone; I desire you to walk out of this Market, if you don't like the price of the Provisions; and to be gone from the Stall, if you don't like the price of the Standing. We were not bound to provide these Stalls for you, but having provided them, if you don't like them, you may leave them; but here is other cases, the man is imprisoned, and sued by Action for the Penalty; here at any time if you don't like your may be gone.
My Lord, I am very confident that if this be so, that all monies levyed by a Corporation without Law are forfeitures; or where the Law is mistaken, then I dare boldly affirm, that we never were a Corporation two months since London was London, but by vertue of some old sléeping By-law or other that has béen set on foot, monies [Page 36] have béen levyed, which perhaps will not be in strictness allowed good: And if all these had béen Forfeitures, we had béen in a strange condition, not one month or two should pass over us, but we had forfeited it; and never can there be perhaps a month to the end of the World, but we should still be forfeiting. And what is said of us, may be said of any other Corporation that happens to make By-laws. And I am sure in former times there were monies levyed with a witness, I mean not the late times of Rebellion only, but an hundred years ago, strange exorbitances of that nature were committed by London and other Corporations; then they went by way of Information, but never was it thought that it could affect the being of a Corporation: If it should do so, I do not know whither it will go at last. The greater or the lesser Sum is not that that will difference the Law. Is it a Forfeiture to receive 5000 l.? Why is it not a Forfeiture to receive 500? Why not to receive 5 s.? Why not to receive 5 d.? No bounds can be set for that, if it be a transgression of the Law; here is a Tort and a Wrong done by your By-law, that you have levyed 5 d. and therefore all this great Inheritance of London, this that is the greatest Inheritance of the Kingdom is forfeited for a Trifle, upon three half pence, or a Basket of Eggs.
Nay my Lord, To go further I say, if this be a Forfeiture, I say 'tis only a Forfeiture of the Market; nay, not so much neither, 'tis only a Forfeiture of the Toll: my Lord, I cannot but once more mention that excellent Notion of my Lord Hobart, That the Power of making By-Laws is included in the Act of the Corporation; for as reason, says he, is given to a natural Body to govern it, so a Politick Body must have Laws, as its reason, to govern it. Now then the making of these Laws is but the exercise of that reason, declaring the mind of the Corporation, for the direction of the Officers of it what to do and what to take; and 'tis but like the mind of a man that directs his hand what to do. For this is not like the Duty of Stallage, that relates to the Publick, and relates also to something that before they had no interest in, but only relates to the administration of a private property, and directs the manner of that administration. They are Lords of the Market, and that is casual to them, it is not necessary for them so to be. If any Corporation bid their Officers levy so much mony; suppose they bid them take more Toll than is due, or levy more mony for Rent than is due for the Land, why this might be looked upon as a great Breach of Trust and Encroachment: They should have had but 6 d. and they took 7 d. and this done by Act of Common Council, which is their way of expressing their mind; yet surely it would be no Forfeiture, because the Land is their own, and the administration of it belongs to them only in point of interest and property. Suppose a Gentleman has a Market, and his Reason, which is his By-law, as my Lord Hobart says, puts him upon taking of Toll, but he does [Page 37] a little mistake the Law or the Custom, he bids his Servant take so much, which perhaps may be too much for Toll, does this destroy his capacity of Suing and being sued? You may as well say such a particular person shall not plead, or be impleaded, if he do so and so. Nay this, if he were a Denizen, does not forfeit his Denization, and yet a Denizen is as perfectly a creature of the Kings as a Corporation is. It is Basilicon Doron, it is the bounty and kindness of the King to one born out of his Dominions, to give him the capacity of a Subject, to sue and be sued, and the like, which cannot be forfeited, even for breach of Conditions in the Letters Patents of Denization. For this is within Versellin Mannings Case, if he does not observe the Laws of the Land; 'tis true, he must be punished for it, but he shall not be undenizen'd.
My Lord, There is a Statute which I think is a most plain Declaration of the Law in this Case, and 'tis the Stat. of West' 1. ca. 31. Some call it the 30th, because they differ in the numerating and heading of the Chapters. 'Tis the Statute concerning those that take Outragious Tolls in Market-Towns. The Statute says, Le Roy prendra le Franchise del' March en sa maine. The King shall seize the Franchise into his own Hands. My Lord Coke in his Comment upon that Statute says, He shall seize the Franchise of the Fair or Market till it be redeemed by the owner, that's all. But this is intended says he, upon an Office to be found; for in Statutes, all incidents shall be supplyed by intendment.
Now in the Quo Warranto that was brought against the Corporation of Maidenhead in Palmer's Reports, there is this very case. That Corporation took an outragious Toll, too much Toll, or that that was not justifiable, for going over their Bridge. Yet it was so far from being imagined that this should be a forfeiture, (and yet the Case is the same, let any man distinguish it that can) that it was a Question whether the Market was forfeited or no, as you may see in that Book, fol. 82. And there 'tis said by Dodderidge, and at last it was agreed by all the Court, that it should be a forfeiture only of the Toll, and not of the Market. And I desire that that Folio may be noted by your Lordship, and that you will please to look into what is said in that Case, for 'tis debated before, and it seemed as if they would have forfeited the Market by it, but not the Corporation, and yet that was not forfeited neither. And to this I will apply that rule that Mr. Solicitor himself did mention, Puniatur in eo quo peccat. You have offended in the Toll, therefore you shall suffer in the Toll, not in the Market, to be sure not in the Corporation. For if it were that it should affect the Market, it would be because it hath some relation to a Market, as a Toll hath; but how can this possibly affect or touch the Corporation? The Statute indéed goes thus far, and says, Whosoever shall take Outragious Toll [Page 38] shall forfeit the Market; but then shall we come and add, Whoever shall take outragious Toll, shall forfeit his capacity of holding a Market, or any thing else? Do they complain of us for taking the Legislative power upon us, and therefore we shall forfeit our Corporation, when the Statute it self has appointed the punishment, and says only, the Market shall be forfeited, and so make a new Law themselves? Statutes are supposed to be penal enough of themselves, and all penal Statutes are to be taken equitably as to the penalty, and not stretch'd beyond the Letter. And wherever a Statute inflicts a penalty, and says you shall forfeit so much, as my Lord Hobart says, the Common Law shuts up the Negative, that you shall forfeit no more. How then is it possible we should forfeit that, which if it were forfeitable at all, is not within the provision of this Law?
'Tis true as Mr. Solicitor hath said in the Book of Assizes that he cited in Vet. Nat. Brev' 161. It is said you shall forfeit in the case of a mis-user, (where the Liberties are not depending one upon another) only the Liberty that is abused, but how that can be applyed for him 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 'tis 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; 'tis 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. 'Tis true, a Quo Warranto might well have been brought for redressing that Extortion, but it could not [Page 39] 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, 'tis 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 'tis 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; [Page 40] 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; 'tis 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 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, 'Tis 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 [Page 41] 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 'tis implyed here. There is no such thing said in the Petition, That the King did interrupt Justice, and the proceedings of the Parliament; 'Tis 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? 'Tis 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; 'tis 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 [Page 42] the better be inabled to concur with his Parliament, as is set forth in the Petition. Can there be any thing more properly said? 'Tis 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. 'Tis 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 'twas 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 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 [Page 43] 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 'tis 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 'tis 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 'tis alledged in the Pleadings, [Page 44] 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 'tis 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 'tis 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 'tis 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 'tis 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 'tis 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 [Page 45] 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 was done seditiously or not; if not, then there is no sufficient Assignment of a cause of forfeiture; if it were, then 'tis a crime, for which the Offender is indictable; and that I say is absolutely impossible for a Corporation to be guilty of. And here I will throw in also that business of the Toll, and I will for argument sake, admit the taking of a wrongful Toll to be Robbery, and then let the argument go on. I have heard it said within the Bar occasionally, that a Corporation is intrusted with the Government, and that they may commit Treason, and raise Sedition, as Mr. Solicitor hath said; I suppose it must be under their Great Seal: But I confess, I believe it is rather spoken to amuse than to satisfie; but I really think it is no ill, nor unjustifiable thing for me to say, nor against the Government to affirm, That 'tis impossible a Corporation can commit Treason, or that it is intrusted with the Government in any such kind.
But first my Lord, I shall shew you what Opinion former times had, and that because such an Opinion as this hath been broached of late days.
Lord Chief Justice. Mr Recorder, Will you be much longer? Because I must sit here at Nisi prius this Afternoon, and yet I would feign hear the Argument, if it would not be too long.
Mr. Recorder. No my Lord, I have almost done, and will cut short.
In 21 E. 4. fol. 13. b. 'tis said by Pigott, That a Mayor has two abilities, the one to his own use, to take and to grant, and to do as another natural person does; and then the Mayor as Mayor and Commonalty, hath another Capacity to their common use and profit; and that is but a name, an Ens rationis, a thing that cannot be seen, and is no substance; and for this name or Corporation 'tis impossible they can do or suffer any wrong, as to beat or be beaten, as such a Body; but the wrong is made to every member of the Body, as to his own proper person, and not as to the name of Corporation; nor can the Corporation do a personal wrong to another; nor can they commit Treason nor Felony as to the Corporation, nor against any other person. And if a Writ of Debt be brought against the Mayor and Commonalty, or other such Body, upon an Obligation, and they plead it is not their Deed, and it is found their Deed, they shall not be imprisoned as another single person shall. The same Law is if they are found Dissessors with force, they shall not be imprisoned; nor [Page 46] in a Writ of Ravishment of Ward they shall neither be imprisoned nor abjure the Realm; for such a Body is hut a name, to which such an act cannot be done. So says Catesby in the same Book. In a Writ brought against them no Capias shall issue, because they are but as a dead person in Law, and the Appearance upon a Capias cannot be otherwise than personal. And so to this purpose says the Chief Iustice there, If this Body will do any thing, it must be done by Writing. And all along it is the Tenor of the whole Case, that a Corporation cannot commit Treason, or any other Crime. But the reason of the thing is above any Authority. Suppose that they under their Common Seal should commit Treason, and you bring an Indictment of Treason against the Mayor, Commonalty and Citizens of the City of London, what Iudgment shall be given against them in their corporate capacity? What? it shall be that Suspendatur per collum Corpus politicum. And then, what execution shall be done upon that Sentence? What must they hang up the Common Seal? Nothing else you can do can affect them; but in their private capacity, there they may be punished as single persons.
A Penal Statute says, That he or she that offends against the Law shall forfeit so much, or incur such a Penalty: Is a Corporation Male or Female? that it should come under such a provision; but the real reason of the Law is this, it is a civil Being, it is Ens civile, it is Corpus politicum, it hath civil qualities, but it hath no moral qualities, and all Offences consist in the immorality of them, and there must be malice to make that immorality. No words or Acts are Treason or Felony, unless there be a traiterous mind or a felonious mind, and therefore a mad-man cannot be guilty of Treason or Felony. Serjeant [...] brought an Action for these words, That he had spoken Treason; it was moved in Arrest of Iudgment, that this cannot be Actionable; for he might speak Treason in putting a Case; ay, that were well, said they, if it could be understood so; but we must intend it that he spoke Treason, as his own words ex corde suo, which makes it Treason; for Treason consists in the immorality of the mind.
Another reason is what Pigot said, as I said before, That a Corporation is but a Name, an Ens rationis, a thing that cannot sée or be séen, and indéed is no substance, nor can do or suffer wrong, nor any thing where a corporal appearance is requisite. What my Lord Dyer says in Moor 68. that he never saw, is, I believe, true in general, that no Man ever did sée, that a Corporation could be bound in a Recognizance or Statute Merchant; and why? because it must be acknowledged in person: And so in this case, The Guilt follows the Person, but cannot a méer capacity. In all Crimes the Offender must appear in person, and plead in person, and suffer in person; but you can never bring the Mayor, Commonalty and Citizens into Goal, to appear and plead [Page 47] to an Indictment to receive a Iudgment, or suffer Execution. Can a Body Politique that is invisible appear in person?
Obj. But then there is this great Objection, By this means, they say, if there be no punishing of them, there is no Government, and they may commit Treason under the great Seal, they may raise Armies, and instigate a Rebellion, and all with impunity.
Sol. My Lord I say no, and I give two Answers to it that are not to be replyed to; and the first is this:
1. All these Persons that are met together, though they are met corporaliter, in their corporate capacity, [...]r the Acts of the Corporation at that time; yet when they go out of their corporate business and commit Treason or Felony, the Crime does not egredi personas, every one of them is a Traitor or a Felon; and notwithstanding they appeared there under the pretence of a Corporation, yet they are all liable in their private several Capacities, every one of them must be indicted personally, and suffer personally: For when they go about to do such a thing, 'tis out of the business of the Corporation, and they must answer for their own particular Offences. But,
2. I have another Answer to give to it. This Objection is to be retorted on the other side, That if a 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 [Page 48] 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 'tis 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, 'tis not the two hundreth part of the Corporation, 'tis but the Act of the Common Council; and we have distinguished our selves by pleading, that it does not consist [Page 49] 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 'tis 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 'tis 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 Ed. 3. which I mention, though I think we have no néed of that in the case to help us; if they make a unreasonable By-law, 'tis void, and every man that is aggrieved by it may have his Remedy, may bring his Action. Shall you supply this by an intendment, that they have such a relation? That they are the Representatives of the City of London? That they have a power to forfeit the Corporation? No, my Lord, by Law they are part of the Corporation, but they have no such power to forfeit the Corporation. A custom shall never be construed to enable a man to do a wrong; and a great wrong it is, that they that are trusted, and trusted but for a year, and trusted but for the good of the Corporation, of which they are part, should give up the being, or what is worse, forfeit the being of that Corporation. The custom of Kent that makes an Infant capable of making a Feoffment, shall never inable an Infant Tenant in Tayl, to make a Feoffment, so as to work a discontinuance [Page 50] of the Estate Tayl, and put the Heir to his Formedon. Every illegal Act of theirs is beyond their Commission, and a nullity of that is all in respect of themselves; and 'tis as if they the had never done it as to the Corporation, for they are by no means the Corporation; for tho they use the Comm Seal in some cases at some times; so do the Court of Aldermen in other cases; but it is only in other cases wherein they are particularly intrusted. If an Act of Common Council say, that I shall have such and such Lands of the Cities, that Act fignifies nothing but as a direction and advise; when 'tis under the Common Seal, 'tis an Act of Corporation, and procéeding by advice of Common Council, it binds.
Now, my Lord, this is the more unreasonable, because we know that the practice of the Common Council in London, being to advise for all the Inhabitants, they are chosen by the unfrée-men as well as others; and 'tis a strange thing that they should have a capacity to give away the liberty of the Citizens, when they are chosen by others as well as them; they had no such trust for them; nay, all trust they had was to kéep their Liberties, and not to destroy them. Has any Man a trust to destroy himself? sure no Man is trusted by God himself to be felo de se. And certainly then you can never understand it to be in the nature of a Trust to destroy another; and the least Citizen, my Lord, has as much and as true an interest in the Corporation of the City of London, as the greatest: And therefore 250, if they had béen much the greater number of the Citizens, would signifie nothing to the rest of the Body.
My Lord, I shall only say this little more, here is no crime charged relating to them as a Corporation: Here is indéed a fine word used, that we did this contra fiduciam in corpore politico repositam, but all this is but an imaginary Trust, the King never gave them a power or authority, or entrusted them to make By-laws that were unreasonable; he gave them a power to make reasonable By-laws, and so he does every Corporation. And the same Law that gave them the power, limits that power, and says, if they go beyond that power, 'tis a nullity. And these Acts relate not to them as a Corporation; the Petition is not so much as said to be against any trust reposed in the Corporation, certainly there never was any such Trust. Did ever the King entrust them to advise him about the matters contained in the Petition? and if not, then 'tis not contra fiduciam; therefore it relates to particular persons: If it be an Offence, I hope 'tis none of the Corporations.
But then the levying of Mony, that is contra fiduciam; they took upon them an illegal and unjust power in the Common [Page 51] Council. Suppose it so, how does this belong to the Corporation? 'tis an encroachment upon property, 'tis the most arbitrary thing in the world. Whether they have the Market, and the Dominion of it or not, is matter of Fact, and being pleaded, is confessed by the Demurrer: And then for the power of making By-laws, that is a thing that cannot possibly be taken from them while they are a Corporation; 'tis that which must be in them as a Corporation, like the faculty of Reason in a Man to express his Resolutions by. And 'tis no more, than if a man that has a Market, bid his Servant go and remove such as have Stalls there, unless they will pay so much. That direction is as good a Law as this, and as bad a Law as this, and no more. There is nothing else in it but the direction of the Officers, what they shall do in the ordering of the Markets, and disposing of the Cities Property.
Then as to the former method of expressing themselves, whether it be by Act of Common Council, or under the Common Seal, or by their natural Voice, 'tis all one, 'tis not a thing that concerns them as a Body Politique: But if it were illegal and mistaken, I say, the Penalty is only, that it shall be void. What the Common Council, nay what the Corporation does within the limits of its Authority is good, what beyond that it does, is void. If I command my Servant to distrain for Rent, and he kills a Man in the doing of it, this, as to me, is void; but as to himself, that is chargeable upon him. And what I say of the Common Council, I say of the Corporation it self, That it is a Capacity, and a limited Capacity; 'tis the act of the Members, not of the Corporation, if they do wrong. The Common Council can act for the good of the City, and the City can do no more, if they themselves should méet, Crooke, Eliz. fol. 85. The Quéen makes a Lease for years of Lands to the men of Chesterfield, by the name of Aldermen, and they by that name grant all their Interest to Clerk; says that Book, this is void; for the Quéen granting them a Lease as to the Aldermen of Chesterfield, this makes them a Corporation, and gives them a capacity to take, but not to grant. And so Rolls Abr. 1 p. 513. And therefore no Corporation is to be considered as a Corporation, but only when it acts according to the capacity allowed to it; and as to the rest, it all turns into their private capacity, but it affects not the Body, nor hath any such relation as to bind it.
My Lord, All the Question here is, Whether there shall be such a Person in Esse as this Corporation? Whether the City of London shall subsist as such a Person, to sue and be sued, to plead and be empleaded? There is nothing of Government or Misgovernment in the case, but 'tis all about our Capacity, [Page 46] and nothing else, whether we shall be Defendant or Plantiff in any Court.
My Lord, Magna Charta and all the other Acts that have gone in confirmation of it, shew the great care of the Government in all Ages to preserve the City of London, and I look upon them as so many Declarations of the immortality of it, and all other Corporations. I shall use a strange Argument perhaps at first hearing, but 'tis to me a great Evidence for us, that Magna Charta does not confirm our being, but our Liberties and Priviledges; it says, That the City of London shall have all its Liberties, it confirms its Léets, its Markets, and all those things, that is, it confirms all that it has; it has not saved indéed, if a Corporation indéed be built upon a Corporation; but that particular Liberty may be destroyed, as that of Bridewel, and the like, but it does more than confirm its being, for it does implicitly declare, That that was impossible to be forfeited: They confirm what néeded confirmation; but for their being there was no néed of that, it only confirmed the supervenient Liberties, with out which it might be a Corporation; but as to its being, it medled not with that: And if it were not so, it were an unreasonable thing that we should have so many Acts of Parliament that give such particular Powers to the Mayor and Commonalty of London; and scarce any Act of Parliament that relates to the Publick, but London is mentioned, and taken care of in it. Are not all these Declarations that London should stand for ever? Would not any one have said else, Pray what do you put such confidence in London for? There is not such a fickle thing upon the Earth as the being of the Corporation of London. If they lay but 6 d. upon a Ioynt of Meat they are gone, and there is not a month in the year but they forfeit their being.
The Act for Administration hath a Proviso, that says it shall not extend to London: Why does any Man think that this Law was not intended to be as perpetual for London, as for other parts of the Kingdom? They did not question but London would be a Corporation as long as England was England.
It would be a strange thing in the Example of it, that the World should be taught by one instance, that a Corporation can be ruined, when so many People put their Trusts in those Corporations, and so many vast Inheritances depend upon them. And I think the King and the Government, or those you call so, are more concerned to preserve London, than all the Persons that are in it. I would not speak it in this place by way of Argument for my Client, but I think I could maintain it in all places; only I hope and believe I shall have no néed for it.
My Lord, All Innovations, as this must certainly be a very great one, are dangerous: This Frame of Government hath lasted and béen preserved for many hundreds of years, and I hope will do so as long as the World lasts. My Lord, I néed your Patience, but I have just done. Here is a Charge that is very little indéed, there is nothing in the matter of it, but the great consequences are fitter to be meditated on than spoken of. And therefore for these Reasons I do pray, That these Liberties may be adjudged to us, and we may be dismissed out of this Court.
Termino Paschae next ensuing.
Mr. Justice Dolben being discharged the beginning of the Term, and Sir Francis Withens in his place.
Sir Robert Sawyer Attorney General, for the KING.
I. THIS Information is not brought for the taking away or destroying the Corporation; for tho it be true that there be in it the words, Et penitus excludatur, yet that is but form; the intention is only to prune and take away the Excesses and Abuses, and therefore no danger of falling into such inconveniences, as suggested on the other side.
In Rolls Abr. Tit. Prerog. 204. It appears by Petitions in Parliament, that London and Norwich, and other Cities, have had their Liberties seized into the Kings hands for some abuses and miscarriages in the Cities, and sometimes restitution granted, other times refused, and answered, that they were in good condition.
These Petitions were 13. & 18. E. 1.
The Liberties of the City are not intended to be destroyed, but preserved and maintained, and this Suit designed to that end.
II. That this Information brought against the Corporation by the name of Mayor and Commonalty and Citizens, is good and well brought.
What is alledged against it out of my Lord Chief Iustice Hales his Book, is not any opinion, but a Nota upon the Case of Cusack.
And in the Case of Cusack, the Iudgment is against the particular persons named, & alios Cives, although not named. But further,
It is not necessarily intended, that though they are sued by the name of Mayor and Commonalty and Citizens, that they are sued as a Corporation or Body Politique. For by those words, [the Citizens and Inhabitants] are comprehended and expressed; and an Information lies well against Inhabitants or Citizens, without naming any persons by particular name; and there are divers Presidents of Quo Warranto's so brought.
Mich. 27. Eliz. C. Entries 537. Quo Warranto contra Inhabitantes Burgi de Denbeigh, Quo Warranto they claim a Court of Record, and other Priviledges.
Mich. 15. Car. I. Quo Warranto against the Corporation of Chard. By 2 Car. I. the like name of the Corporation against Canterbury. But 'tis true, that in these Cases are no procéedings to Iudgment.
But Trin. 6. Jac. Quo Warranto against the Corporation of New Malton, and thereupon Iudgment is given against the Corporation.
III. Next that the Replication alledging Forfeiture is not repugnant to the Information; for though the Forfeiture should determine the Franchise, yet it remains not vested in the King until the Forfeiture appears upon Record by Office or Inquisition finding it, or by Iudgment upon Information; and therefore this Information well brought against the Corporation.
IV. That a Corporation or Body Politick may be forfeited, is beyond all doubt.
A Corporation is a visible Body of Men, and every of the Members thereof hath a Fréehold in it.
Sir James Baggs Case, Co. Rep. 11.
Co. Rep. 10. 14. That all their Acts are performed by natural Persons: That all Corporations derive their Commencement from the Kings Grants.
49 E. 3. 3.
Br. Corporation 34. And are erected for better Government, either of persons inhabiting within such a Township or place, or that are of such a Trade or Mystery.
1 Inst. And the Books cited to prove that it is a Capacity, do not prove it not to be a Franchise or Liberty.
But on the contrary, all Books that speak of it agree it to be a Franchise, Priviledge and Liberty which the Persons incorporate have by the name of their Corporation.
If then a Franchise or Liberty, then nothing more common and certain, That Franchises or Liberties abused, are thereby forfeited.
1 Inst. 9.
21 E. 4. 13.
Co. 10 Rep. Sutton's Hospital Case.
That Corporations have béen Dissolv'd.
1 Inst. 13.
2 Inst. 431, 432.
Co. 3 Rep. Dean and Chapt. de Norwich's Case.
That Corporations may be surrendred is plain, from the Cases of Heyward and Fulcher, Jones.
Palm. 506.
That the Causes for which Franchises may be seized, are the same for which they are forfeit, as for Non-user or Abuser.
And therefore Forfeiture and Seizure alike.
For Contempt of the King, the Court may seize the Liberties of a Town.
2 E. 4. 5. Case de Bayliffs de Reading.
15 E. 4. 6. Seizure of Liberties for not Appearance, and if not replevyed the same Eyre they are forfeit. This shews that the same default that gives Seizure gives Forfeiture.
A Seizure by award of a Court before Iudgment is but quousque, and the Court may restore; but a Seizure after Iudgment is final, and the Court then cannot grant Restitution.
5 E. 4. 7. Where the Liberty is usurp'd and gain'd by Tort, there the Iudgment must be an Ouster.
But otherwise where the Liberty was once of right, but forfeited by Abuser; there the King shall have it.
Case de New Malton, Iudgment there was only a Seizure.
Case de Cusack. Iudgment fuit penitus excludatur, because usurp'd and no title.
By the Seizure the King is in the possession. Sir G. Reynel's Case, Co. Rep. And the Corporation cannot act during such Seizure; for they have not their Mayor or Officers by which they can act; and that is the reason they Petition to be restored in E. 1. ad pristinum Statum.
Rolls Abridgment, Prerog. 204. 2 E. 4. 27.
1 Institutes 253.
15 H. 3. Rot. Cl. Memb. 2. Village of Hereford seized into the Kings hands quous (que) &c.
By the Seizure the Corporation est Civiliter mortua, and cannot act.
Corporations are instituted for a particular end, viz. For good Government and Order. They are as an Office erected, and the Actors Officers to that purpose.
All Offices have a Condition in Law incident to them, to be forfeited for abuser or mal-user.
Co. Rep. 8. 44. Co. Rep. 9. Earl of Shrewsburies Case.
And by the same Law Corporations forfeit for mal-user or abuser.
No difference betwixt Corporations aggregate or sole, and the one forfeit for the same mis-user or abuser as the other. And as to the Mischiefs that will ensue if the Law otherwise,
It is no answer, That the persons offending may be punished in their private Capacity.
For if they still remain a Corporation, they may Assemble, Consult, raise Mony and Men, to the hazard and danger of the King and his Government, and still continue a form'd Body, too much thereby advantaged to serve such purpose.
Presidents and Cases of Forfeiture.
Case of Sandwich, Pasch. 3. E. 1. Rot. 55. upon an Information, the Iudgment was, Consideratum fuit per Dominum Regem & Consilium Domini Regis in Parliamento, quod Majoritas & Libertas de Sandwich capiatur in Manus Regis.
Villa de Cambridge, Inst. 4. 428. M. 8 R. 2. Plea to the Iurisdiction rejected, and Iudgment that their Liberties shall be seized.
Ryly placita Parliamenti 277. Iudgment that the Liberties of Winchester shall be seized quous (que) and restored again.
Mich. 18 E. 3. Rot. 162. in B. R. Iudgment against Ipswich, that the Custody thereof shall be seized.
2 Rolls Prerog. 204. divers Seizures: 1 Crook 252. it is there cited, that the Liberties of the Town of Norwich were seized 27 H. 6. for not suppressing a riotous Assembly there.
F. Avowry 129. Iter of Lancaster, Quo Warranto against Northampton, Iudgment of Seizure quous (que) &c. for mis-pleading, 2 H. 7. fol. 11.
Mich. 15 Car. 1. B. R. Quo Warranto against the Town of Berkhamsted, but no Iudgment entred.
Usual Proceedings in Eyre, to Seize, Fine, and Restore.
Rast. Entries 540. Seizure of a Leet for not having a Tumbrell.
And all the several Cases, and the very Acts cited that prove Seizures of a Corporation, prove also that they may forfeit.
V. That the Acts of the Common Council are the Acts of the Corporation.
Corporations have by their Charters Prescription or Custom, Common Councils to assemble, advise and consent; they are as Delegates for the rest of the Body; they are the Active Corporation, they make By-laws, and dispose of the Lands and Concerns of the Corporation; in them the Corporation acts; 9 H. [Page 58] 6. 3. 5 H. 7. 26. 48 E. 3. 17. 1 Cr. 540. Warren's Case, Rolls 2 A br 456. Tit. Restitution.
Obiect That the Stat. 1 E. 3. insisted on by the other side, whereby they would have it, that the Liberties of the City should not be seized for any the Miscarriage of the Officers.
Resp. In answere to this Objection,
I. It is no Statute, but only a Charter, and that Charter not granted to the Mayor, Aldermen, and Commonalty, but only Civibus London.
II. That it extends not to this Case; for by the words, [Officers and Ministers] the Mayor, Sheriffs and Aldermen (being ordinary Officers of the City, by whom the Kings Writs and Precepts are executed) are the Persons intended. But this extends not to the Mayor, Aldermen and Common Council, which are the visible and active Corporation.
Stat. 38. E. 3. c. 10. explaineth this to be so, for that is express. Mayor, Aldermen and Sheriffs; and that the Liberties of the City shall not be seized for their miscarriage till their third Default.
But the Stat. 1 H. 4. c. 15. repeals the former Stat. of 28 E. 3. also the Stat. 1 E. 3. if it were any, puts the City of London into the same condition with other Cities.
VI. That the Facts and Crimes charged in the Replication are Forfeitures.
They are Offences of a high Nature. To oppress the Subject by raising Mony for their own private Gain, is quite contrary to the ends of their being a Corporation, which is the good Government and Preservation of the Subject; but to make use of this Power to oppress and raise Mony for private benefit, is a great Abuse of their Authority and Franchase.
And they cannot excuse themselves as for a Toll: For Toll cannot be claimed, except it be a Sum certain; it must be some little petit Sum claimed for Toll. These Sums are too great and unreasonable to be claimed for Toll.
The Statute of H. 7. that gives a Forfeiture of 40 l. for using an unlawful By-law, did not alter the Law that was before. It gives a new and further Penalty, but takes not away the old.
And as to the Custom alledged for assertaining Tolls, Duties, or Sums reasonable to be paid, such Custom is unreasonable for the Vncertainty and the Nature of it.
VI. The Petition is malicious, and apparently Seditious, stiring up the People to a drinke of the King and his Government.
Stat 3 E. 6. c. 1. provides against derogating from, or depraving the Book of Common Prayer.
1 Cr. 223. Sir William Marsham versus Budges, against Standalizing a Iustice of Peace.
Much more is it to deprave, Libel, 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 [Page 69] 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 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 [Page 68] 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 [Page 69] 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 [Page 70] 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 suo pro Usurpatione Libertat. & Franch. predict'. That this is the Form, C. En. 559. a 537. 527. b
3. That this Iudgment of New Malton passed sub silentio, for there is no mention of it in any Book, nor doth it appear that ever the Question was moved or debated. And for Precedents in matters of Practice and Process, they are of Authority; but in point of Law, unless they have been upon Debate, are of little authority to prove what the Law is. Rep. 4. 94. Slade's Case, L. 5. E. 4. 110.
But on the contrary, all the Precedents that are in any printed Books of Informations, where brought to question, whether Body Politick, or not, are against particular Persons by name:
Against Christopher Helden, and others.
C. En. 527. Pal. 9. fo. Rol. 2. r. 113, 115. Rol. 2. 455. Quo Warranto against Cusack, and others.
Quo Warranto against the Virginia Company was brought against Nic' Farder, and others, Quo Warranto they claimed to be a Corporation?
Some of them pleaded insufficiently, upon which there was a Demurr, and a Question, How the Iudgment should be entred? for that the Master and chief of the Company were left out of the Quo Warranto.
By which it appears, that it ought to be brought against the Master, and particular Members, by Name.
Next for the express Authorities in this Case, to prove it cannot be against the Corporation.
Rol. Rep. 2. 15. is express, That if a Quo Warranto be brought to dissolve a Corporation, the Writ ought to be brought against the particular Persons, for the Writ supposeth that it is no Corporation.
The difference there taken, when the Attorney General supposeth the Defendant to be a Corporation, otherwise when he questions them as Inhabitants of a Vill. then they ought to enable themselves, they must then shew themselves a Corporation, also prove it.
Fol. 168.My Lord Hales, in his Common-Place Book in Lincolns-Inn Library, saith thus:
Nota, Sc. Quo Warranto soit port pur usurper de un Corporation serra port vers. particular Persons, quia in disaffirmance del Corporation, & Judgment serra done que serra ouste; mes si le quo Warranto soil port pur Liberties claim per Corporation, serra port vers. le Corporation.
This is positive.
This, if it were only my Lord Hales's Iudgment, were of no little Authority, but I think it is a Report taken upon the Case of the Quo Warranto against Cusack, and others.
But Mr. Attorney finding, as I believe, that all the Precedents to be against him. For in them all there are either non Pross. or no Procéedings to Iudgment, the Causes whereof, or at least some of them, probably might be the Insufficiencies of these Informations.
And finding also the Authorities in Print which have been cited to be all against him, and none for him, endeavoured to maintain the Information as brought not against the Corporation, but against the Citizens or Inhabitants of the City in their Natural Capacities, and to that purpose cited the Case, C. En. 537. of a Quo Warranto against the Inhabitants of a Village, Quo Warranto they claimed to be a Body Politick.
And argued, That a Quo Warranto lyes against the Cives of such a City, or Burgenses or Tenants.
This seems to be rather a sudden conceit, and altogether undigested, and not well considered.
But in answer thereunto, and to prove that this Writ is brought against the Defendants as a Corporation, and cannot legally be taken in any other Case.
If a Mayor and Commonalty plead that they are seized in Fée, Leo. 1. 153. they néed not say in Right of their Corporation, the Name shews them to be a Corporation, it néed not be alledged.
An Action there brought by the Guardians and Fellowship of Weavers; the Book saith, Hob. 211. That they néed not set themselves out to be incorporate, the Name shews it so of Cities, saith the Book.
So then, when the Writ is brought against a Mayor and Commonalty, or Mayor, Commonalty and Citizens, the Law takes notice of them to be a Corporation, and the Writ against them as such; the Name shews it.
But against Inhabitants of a Village, a Writ brought by the Name that cannot be taken to be other than Inhabitants, the Name so shews it; and in such Case, some of the Inhabitants, by Name (viz.) A. and B. appear in Person, in their own, and Names of the rest of the Inhabitants, and plead, and are Defendants, Co. En. 537. So did they, as appears in that Precedent. No appearance ever was of Inhabitants in other manner.
But in this Case here are no Persons that do appear by Name, but the Corporation appear, and make an Attorney under their Common Seal. The Corporation, and no particular Persons, are the Defendants before you, or else you have no Defendants before you; for there is none appearing in Person, here is no Defendant, nor none against whom you can give [Page 72] Iudgment; but all the whole Procéedings vain and against no body.
So that if we should admit, as Mr. Attorney argues, That this Information is not brought against the Corporation; then there can be no Iudgment for want of Defendants appearing in their Natural Capacities; you must have it against the Corporation, or no body. A Mayor cannot be but where there is a Corporation; therefore this Notion impossible, as I conceive.
So that if there were nothing else in the Case, if the Information be ill brought, they can have no Iudgment against us.
2. But admit that the Information as to this Point be sufficient, Then I procéed to consider the other parts of this Case, The Plea.
That contains the Defendants Title (viz.) That she is a Corporation time out of mind, and many Confirmations by Acts of Parliament and Charters, It is not denied but that the Title made by the Plea is good.
But next the Replication, that contains,
(1.) An Issue upon the Prescription (viz.) That the Citizens of London have not been time out of mind a Corporation by Name of Mayor, Commonalty, and Citizens, &c.
(2.) A Pleading over, That the Mayor and Commonalty and Citizens taking upon them (assumentes super se) to be a Body-Politick, and to have Power to make By-Laws.
1. Colore inde, but for their private Gain, & contra fiduciam per Dominum Regem & Leges hujus Regni in them reposed, took upon them to raise Money upon the King's Subjects by colour of an Ordinance by them de facto made, and in Prosecution of this usurped Power.
17 Septemb. 26 C. 2.The Mayor, Commonalty and Citizens in their Common Council assembled, Published a Law for Levying Money upon the King's Subjects that came to the Markets within the City. (viz.)
De qualibet Persona, for every Horse Load of Provisions brought into any Publick Market within the City to be sold, 2 d. a Day, for every Dorser of Provision 1 d. a Day, for every Cartload drawn with not more than thrée Horses 4 d. a Day, if with more, 6 d. a Day.
That if any refused to Pay, he should be amoved from his place in the Market.
That by Colour of this By-Law, the Mayor, and Commonalty and Citizens have Extorted great Sums of Money for their own private Gain, amounting to Five thousand Pounds per Annum.
2. And farther, That whereas there was a Session of Parliament holden 21 Octob. 32. C. 2. and continued till the 10th of Jan. 82. and then by the King Prorogued to the 20th of that instant January.
The Mayor, Commonalty and Citizens, Jan. 13. in their Common Council assembled, malitiose, advisate, & seditiose, absque legali Authoritate, in se assumpserunt ad censendum & judicandum dict' Dom' Regem nunc, & Prorogationem Parliamenti, by the King prorogued; and in the same Common Council, Vota & Suffragia sua dederunt & ordinaverunt.
That a Petition sub nomine the Mayor, Aldermen, and Commons of the City of London, in Common Council assembled, to the King should be exhibited: In which Petition it was contained,
That by that Prorogation the Prosecution of the publick Justice of this Kingdom, and the making necessary Provision for the Preservation of the King, and his Protestant Subjects, had received Interruption.
And that the Mayor Commonalty, and Citizens, in the same Common Council, did unlawfully, malitiose, advisate, & seditiose, with intent that the same Petition might be published and dispersed among the King's Subjects, to induce in them an Opinion, that the King had by that Prorogation obstructed the publick Iustice, and to incite hatred against the King's Person and Government, and to disturb the Peace, did order that Petition, containing the said scandalous matter, to be printed, and thereupon to those ill Ends and Purposes they caused it to be printed and published:
By which the Mayor, Commonalty, and Citizens, the aforesaid Liberty and Franchise of being a Body Politick forisfecerunt, and after, by the time in the Information, have and yet do usurp it.
Before I come to the matter, I would speak to the Pleading herein, and in the subsequent Surrejoinder: And for the Pleading in it, I think it is as singular and unpresidented as the Matter of it is.
This Replication, supposing the matter had been the Act of the Body Politick, and good and sufficient, yet, as pleaded, is insufficient, and not warrantable by any Law or Practice ever known. It contains,
1. An Issue, viz. no Corporation time out of mind.
2. Two Causes of Forfeiture of the Corporation, admitting they once were a Corporation.
So that though the point in question be but one, viz. whether we are lawfully a Corporation or no Corporation, though the Plea is single, that we are a Corporation by Prescription time out of mind, yet here is to try this point,
1. An Issue.
2. A double Plea, alleadging two Causes to avoid it for a Forfeiture.
This I conceive cannot legally be done, though in the King's Case. I do agree, the King hath great Prerogatives in Pleadings, [Page 74] and as far as ever they have been allowed or enjoyed, let them be so still; but that the King can to the same matter both take Issue, and also plead over at the same, that I deny.
It is most reasonable, that the Law should be carefull to preserve the King's Rights; but on the other side, I think it is not reasonable, that the Law should admit or allow as legal any way of Proceeding that should destroy or render the Subjects right indefensible, be his right as good as it may be. If so be that Mr. Attorney may both take Issue upon the Fact, and also plead over, I would, by your leave, ask how many Issues, and how many Pleas over the King's Attorney may have?
Suppose the King bring a Quare Impedit, or Writ of Right, or any other Action, the Defendant makes his Title, which is usually done, by many Grants and Conveyances from one to another, to bring it to himself.
May the King's Attorney now take as many Issues as facts issuable, plead as many Pleas as he pleaseth, and all this simul & semel? 'Tis true, that in this case Mr. Attorney hath assigned only two Breaches, or Causes of Forfeiture; but he might, if he had pleased, by the same Reason, have assigned 200. If this may be, Are we not all at Mr. Attorney's Mercy? If this may not be, then how many Pleas? Is it in Law defined?
In favorem Vitae a man may plead a special Plea, and plead also not guilty, but not several special Pleas; but that there is any such Prerogative for Mr. Attorney, in Suits betwixt the King and his Subjects, I can find no Instance or Authority for it.
For though it be true, as I have said, that the King hath great Prerogatives in pleading, yet it is as true that this is not boundless; but that if in the King's Writs there be mistakes, or his Writ or his Action misconceived, he shall be bound by it in like manner as Subjects are or shall.
Partridge against Strange, and in the same Book in my Lord Berkley's Case, Com. 84. a. 236. a it is expresly said, That though the King hath many Prerogatives, concerning his Person, Debts, and Duties, yet the Common Law hath so admeasured his Prerogative, that it shall not take away or prejudice the Inheritance of any.
The King hath a Prerogative that he may wave his Demurrer and take Issue, or wave his Issue and demurre upon the Plea: But, saith the same Book, he must doe it the same Term, Com. fol. 236. not in any other Term, for then he may doe it in infinitum, without end, and the Party hereby may lose his Inheritance; and for that the Common Law will not suffer the King to have such a Prerogative.
These are the words of the Book.
And in the point that this Prerogative must be made use of the same Term, and that the King's Attorney cannot vary in another Term, and wave his Issue, is 13 E. 4. 8. Bro. Prer. 69. 28 H. 8. 2.
So in making Title to a Quare Impedit, he at the end of the Term waved his first Title, and made another.
But it is true also, Rex vers. Bagshaw. Cr. 1. 347. that as to the point of Waving Demurrers, and taking Issue in another Term, there is authority that he may so doe; but whether it may be done or not in another Term is not material to our case: But the use I make of these Cases is to prove that the King's Attorney should not have both together simul & semel, as in this case he hath done; he must wave one before he can have another Plea.
For those Debates about his varying his Plea by waving his Issue and demurring, or waving his Demurrer and taking Issue, signifie nothing, if he may in one Plea, and at the same time, take Issue, and demurre, or plead over to the same matter or point, as is done in this case; therefore those Books strongly prove, that the Prerogative that the King hath is by waving or relinquishing one, and chusing the other; and therefore not to have or use all together and at once, as is done in this case.
The King shall be bound by one Issue, 9 H. 4. 5. he shall not have divers.
So that as this Replication is at the same time simul & semel to the same matter, to take Issue that we were not a Corporation time out of mind, and to plead two matters of Fact for Forfeiture, is the first attempt that ever was of this kind, and in its consequence confounding the right of the Subject, and leaves him perhaps only but a colour of Law, but most difficult, if not impossible by it to be defended, let his Right be what it will, if Issues and Pleas without number may be by the King's Attorney joined and pleaded, and the Subject must answer, the very charge besides will undoe the Subject, and wrest him out of his Estate by the Law that should preserve him. This point, if I mistake not, will deserve consideration, if it be new, and the first project (for so I beg leave to call it) of its kind, for I know no Book or Instance of the like, unwarrantable by old Laws and Rules of Pleading. The old Laws and ways are good and safe, ‘Eventos varios Res nova semper habet.’
Perhaps the consequence and mischiefs attending this way of joining Issue, and at the same time pleading over as many Pleas as Mr. Attorney pleaseth, are as great as any other in this case, and not less to be minded or regarded. As of the one side great are the King's Prerogatives, and most necessary to be preserved, and maintained; so it cannot be denied but that the Law hath set Limits and bounds, which must be kept and observed in pleading, which is the Method and Mean of preserving and determining Rights, without which no man can be preserved by the Law.
But supposing that several Causes or Forfeitures may be assigned, yet they must be all Facts done at the same time, or they confound one the other; for if the first Fact was a Forfeiture, thereby the Corporation was determined, and at an end, and the subsequent could not be the Act of the true lawfull Corporation, for that was forfeited, determined, and gone, by the precedent Forfeiture: And if so, that it was forfeited and gone by the precedent Act, viz. the making the Ordinance Septemb. 17. 26 C. 2. Then how could it act and forfeit it self six years after, in the Year Thirty two? This seems impossible.
But to avoid this:
Mr. Attorney in his Argument doth hold, That though the Act be a Forfeiture, yet till there be a Iudgment, or something on Record to determine the Corporation, (and in this case the Iudgment to be given shall doe that Work,) till such Iudgment the Corporation remains. Then taking it as Mr. Attorney will have it, and as the truth is, supposing a Forfeiture, untill that Forfeiture appear on Record, or that there be some Office or Inquisition that finds it, and that return'd, and on Record, were it of any Estate in Lands, Tenements, Hereditaments, or Offices, it is not determined or vested in the King, but continues. This is quite contrary and contradictory to all that you have done, and the very Foundation of this Quo Warranto; for if you admit, as then you do, that the Forfeiture ipso facto, did not determine, but that it must be this Quo Warranto, or Iudgment upon it, that must determine the Corporation, and that the Corporation, notwithstanding such Act, was or is in being; then they have not usurped upon the King; they are the same Corporation they were; they have the same power to act they had; they have the same Warrant and Right they had, only subject to a Iudgment against them, that may be given hereafter, for a Fact already past; for since that an Vsurpation is a sortious and wrongfull using a Liberty or Franchise upon the King, without lawfull Authority. Then
Supposing such an Act of Forfeiture doth not ipso Facto determine or dissolve, but a Iudgment, or some other Act of Record, must first be had, before such dissolution; then till such Iudgment, or Act of Record, they are lawfully a Corporation in being, and their lawfull Warrant remains, and they did not, nor could so long usurp their Being, and then hereby is your own Information destroyed and abated: For there you say that they did by the space of a month, without any Warrant, use and usurp the Liberty to be a Corporation. But hereby you grant that it was not used unlawfully, nor usurped, but notwithstanding the Forfeiture the Corporation lawfully continued, unless there had been some Iudgment, or other Act on Record to determine it.
This I rest upon as impossible to be avoided.
Is it possible that a Corporation or Body Politick can at the same time be lawfully and rightfully such, and not lawfully and [Page 77] rightfully such? Can right and wrong be the same? Can the same thing rightfully be or have its Being, and at the same time not rightfully be or have its being? Can we possibly be at the same time, viz. the time mentioned in the Information, a lawfull Corporation, and yet an usurped or unlawfull Corporation? Could we then have a lawfull and rightfull Authority to be a Corporation, and at the same time have no lawfull or rightfull authority to be so?
These seem to be contradictions, and if so, are the most difficult of all things to be believed or imposed; therefore to be plain in this matter, either tell us that we are yet till Iudgment a Corporation or Body Politick lawfully and rightfully, or not. If you say we are, then as yet we are no unlawfull Corporation, nor have usurped to be one, as in your Information and Replication you have alleadged. We have not then unlawfully taken upon us to be a Corporation, and therefore cannot have Iudgment against us, or be fined for having or being that which we lawfully have or be, as you now admit we are, consequently you must go some other way, you have destroyed your own Information, and can have no Iudgment upon it.
But perhaps this concession of Mr. Attorney, that the old and lawfull Corporation and Body Politick is still in being, and shall so continue, till by Iudgment or Matter on Record determined, may only be some sudden thoughts; for not only the Matter, but the whole Proceedings in this Suit being at least unexperienced, and perhaps much out of practice, it might easily happen, that in an hasty Proceedings all things might not be thought on, nor all the Objections or Inconveniencies foreseen, and perhaps the consequence of the Position, that a Miscarriage, or doing an unlawfull Act, should ipso facto forfeit the Body Politick or Corporation, might make a man start, and cast about how to avoid it, and flying from one danger run into another. These are things ordinarily happening, and perhaps have in this case happened, and were the cause of this confession, that the old and lawfull Corporation is yet in being, which is contrary to the whole frame and scope of both the Information and Replication, and probably never thought on or intended when the Information or Replication was made, being quite contrary and inconsistent with the frame and foundation of them both,
If it be holden according to this concession, that the old and lawful Corporation was not by the supposed Acts of Forfeiture dissolved and determined ipso facto, but remained and continued lawfully a Corporation, and yet is so; then we have not usurped, but are a lawful Corporation during the time in the Information, and not as therein supposed by Vsurpation, and without lawful Authority; and thereby the Information confounded and abated.
But supposing, according to what the Information and Replication suppose,
That the Acts of Forfeiture did ipso facto dissolve and determine the Corporation, for they will (at last I doubt) come to that again; for this present thought that it shall be forfeit, but not dissolved or determined till Iudgment, will be subject to almost all the same inconveniencies; for when Iudgment given, the Forfeiture must relate to the time of Offence, and to avoid all mean Acts as in other Cases it doth. But to pass over.
(3.) Supposing the Information good, the Replication good, and the Matters alledged for Forfeiture to be as in the Replication alledged.
The next thing I pray leave to speak unto, is,
Whether the Matter alledged in the Rejoynder be not sufficient to justifie or excuse the two Facts alledged for cause of Forfeiture.
I conceive they are.
The Pleadings here must first be stated,
(1.) As to the Ordinance or By-Laws for the Toll in the Markets. As to that the Defendants in their Rejoinder have alledged.
That the City of London is, and was always the capital and most populous City of the Kingdom. That there are and always have been great publick Markets within the said City. That the Mayor, Commonalty and Citizens, are and always have béen seised of those Markets in their Demesne as of Fée; and at their own proper Charges provided Market-places, Stalls, Standings, and other Accomodations for Persons coming to those Markets; and Overséers and Officers for better regulation and kéeping good order, and cleansing the same. That for defraying those Charges, they have, and always had and received divers reasonable Tolls, Rates, or Sums of Money of all Persons to those Markets coming, for Stalls standing, and other accommodations by them had for exposing to Sale their Victuals and Provisions in those Markets. That the Fréemen of the City of London are numerous, above fifty Thousand. That there hath been time out of mind a Common-Council, consisting of the Mayor, Aldermen, and certain Fréemen annually Elected, not excéeding the number of two Hundred and fifty, called the Commons. That there is a Custom within the City, that the Common-Council make By-Laws and Ordinances for the better Regulation and Government of the publick Markets, and for the appointing convenient places and times when and where within the City the Markets shall be kept; and for the assessing and reducing to certainty reasonable Tolls, Rates, or Sums of Money to be paid by Persons coming to the same Markets, for their Stalls, Stations, and other Accommodations by them had for exposing to Sale their Victuals as often as, and when to them should be thought expedient, so as their Ordinance be useful to [Page 79] the King and his People, consonant to reason, and not contrary to the Laws of the Land.
That this Custom is confirmed by Mag. Char. Stat. 1. E. 3. Stat. 7. R. 2.
That after the Burning and Rebuilding London, and the alterations thereby made, Controversies did arise within the City concerning the Markets and the Tolls. That thereupon Sir William Hooker, then Mayor, and the Aldermen and Commons in Common-Council assembled, did make an Ordinance, Entituled, An Act for the Settlement and well ordering the several Publick Markets within the City. By which reciting, That whereas for accommodation of Market-people, with Stalls and Necessaries for their standings, for clensing and paving the same, for defraying incident Charges about the same, reasonable Rates had always béen paid. To the end the Rates to be paid might be ascertained, That the Market-people might know what to pay, and the Officers what to take; to avoid extortion, it was ordered there should be paid by the Market-people for their Stalls, Standings and Accommodations in the Markets,
For every Horse-load of Provision under publick shelter 2 d. a day; for every Dosser 1 d. a day; for every Cart-load drawn with not above thrée Horses 3 d. a day; with more Horses 4 d. a day, and upon refusal to pay to be removed. Then they aver that these Rates are reasonable. That they are all the Rates that are paid by such Market-people to the use of the City. That these Rates they have received since the making these Ordinances. That there is no other Ordinance for raising Moneys for such Provisions exposed to Sale in their Markets in any manner made.
To this Rejoinder Mr. Attorney hath sur-rejoyned, and taken it by Protestation, That the City were not seised of the Markets, nor at their own Costs provided Stalls and other accommodations; and that the Rates by the Ordinance appointed were not reasonable. For Plea sets sorth, An Act of Parliament made 22 Car. 2. Enacting, That to the end apt and convenient Places within the City should be put out for Buildings, and keeping the Markets; and that the Royal Exchange, Old-Baily, and common Gaols and Prisons within the City should be made more commodious for the enabling the City to do these things, they should have a Duty out of Coals imported betwixt May 1670. and Mich. 1687. into the Port of London, 12 d. per Chaldron; which Duty they have accordingly received, amounting to a great Summ, and notwithstanding that Duty, without Title or Right, the Defendants made the By-Law for their private Gain, abs (que) hoc, that the Mayor, and Commonalty, and Citizens have time out of mind had, or accustomed to have,
Tolneta ratas sive denariorum summas per ipsos Majorem Communitatem ac Cives Civitatis predict' superius supposit' fore per praesat' legem sive ordinationem predict' assess. & in certitudinem [Page 80] reduct' prout per placitum superius rejungend' supponitur.
The Defendants they rebutt and say, That they have always had reasonable Tolls, Rates or Summs of Money of all Persons coming to their Markets to sell their Provisions for their Stalls and accommodations: Et de hoc ponit se super patriam: Le Attorney Demurs.
Vpon his Pleadings the Questions are, Whether the matters alledged by the Defendants, in Iustification of the Ordinance, or By-Law, be a good Iustification in Law or not. If it be, Mr. Attorney in his Sur-rejoinder hath given no answer to it at all, he hath neither confessed it, nor denied it. The Rejoynder saith, That the Defendants are and always have béen seised of the Markets in Fée.
That 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 [Page 81] 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 'tis true, their Ordinances must not be unreasonable. The Payments that are imposed by this Ordinance, are only imposed upon those that are under shelter; 'tis 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 [Page 82] 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. 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 'tis 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 [Page 83] 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. 'Tis true, that in the 7 H. 6. fol. 1. when 'tis 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. [Page 85] 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 'tis 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 [Page 87] 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 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 abs (que) 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 [Page 88] 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, 'tis 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; 'tis 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 [Page 89] 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 the time being, and of certain Freemen, not exceeding 250, annually elected to serve as Common Council-Men, and are called the Commons of the City. That time out of mind there hath been a Custome, that the Mayor, Aldermen, and such Citizens, so elected to be of the Common Council, according to custom, have been accustomed to make By-Laws and Ordinances, for the better regulation of the publick Markets, for appointing [Page 90] times and places, and assessing and reducing into certainty reasonable Tolls, Rates, and Summs of Money, payable for Stalls and Standings, in the Market. For any things appears upon the Record, this is all they have power to doe: Non constat to the Court that they have any other power or authority over Lands, Estates, or any thing else. Next, If this which in the Rejoinder is alleadged, of the Being and Power, be true, and so admitted, then what they did in making the Ordinance, was done by good and lawfull power and authority, and then can be no Offence: But if to make the Ordinance be an Offence, and an unlawfull Act, you deny the Custom to be good, and say, the Custome is void, and against Law, and for that Reason the Ordinance illegal. Then non constat that they had any power at all to doe any thing, and then a Common Council to advise without power to doe any Act: and if so, How can a parcel or part of a Corporation, not authorised to doe any Act, doe an Act that shall forfeit? Suppose a particular Company, as the Mercers, had done this, could this be a Forfeiture? But if to avoid this you will say, that the Court shall take notice of the Common Council of London, to have the management of the business of the Corporation belonging to them. This I think the Court cannot doe, and I cannot see how possibly they can, as a Court, judicially take notice hereof. Suppose our Question had been concerning another Corporation, could the Court then, as a Court, judicially have taken notice of the Power or Authority of their Common Council. Mr. Sollicitor in his Argument held, That there was no difference betwixt London and another Corporation, except that London was the biggest. Then put the case of any other Corporation, could the Court judicially have taken notice of their Power or Interest, without having it specially set forth? Is it possible the Court can, since they differ one from the other, as much as their Charters or Constitutions do differ, of which there is hardly to be found two in England that do agree in their Powers? If it had been of another Corporation, of necessity the constitution of the Common Council must have been set forth. If you are upon a By-law, made by any other than the Body Politick it self, must not the Power and Authority of those that made it, be shewn, and set forth in Pleading, in any case where there is occasion to use it? How otherwise could the Court judge or determine of it? So that taking the Law to be as the other side saith, that London differs not from any other Corporation; it is no where alledged in the Pleading, that they have Power to make By-Laws, for the ordering and governing the City, or that they can bind all the Corporation in sale or disposition of their Lands, or have the power of the common Seal: Therefore when the King's Counsel argue from these Powers, their Power of forfeiting, they argue quite out of the Record; they have no where alleadged or pleaded what they are, or what Power they have, as they should have done, if they [Page 91] had so intended. So as to this particular here is nothing before the Court, nothing upon Record, to shew how or which way the Body Politick should be concerned in these Acts of about two hundred and fifty of their Members, called the Common Council. Wheresoever any By-Laws or Ordinances are pleaded, the Power to make these By-Laws or Ordinances is pleaded, and so are all particular and derived Authorities, whenever occasion to plead them, and necessary they should be so: For 'tis Fact that the other side may and ought to be at liberty to deny it, if he sée cause; and therefore if they will have it that the Common Council have abused some Power or Authority they have, thereby to forfeit the Corporations, they ought to have shewn it; to say that notice shall be taken, or it shall be intended or presumed, is in truth a Presumption upon the Court, as if the Court should take notice of intend or presume what the King's Counsel would have, which the Court cannot, nor will doe, more in this than in other cases. But supposing the Court will take more notice of London than any other Corporation, and will take notice of the Common Council there, and of their Power and Authority; and I will suppose as the other side do, That they have the Power of making By-Laws, of leasing, granting, and managing the City Lands and Revenues, and of sealing with the common Seal, and that this they have by Custome; Then surely, say the other side, they have the Power of surrendring and forfeiting the Corporation. If I should answer, surely and without doubt they have not, this would not argue they have not; but the Argument should come of the other side, to prove they have; they have not, nor can produce any Case or Opinion to prove it; and the very thought that they could is so new, that I believe none can be found like it. But let us consider the nature of this Thing a little par, ticularly, though general Discourses are most easie and florid-yet perhaps a particular Enquiry may best discover. Admit that they have the Power the other side say they have; yet they are not the Corporation, but a part constituted for these particulars ends and purposes for which they are impowered. Corporations had their Creations by Charter; that gives them their Being, and the Form, Method, and Power of Action. Suppose that the first Charter of Incorporation that was granted to London did grant, that the Citizens should be incorporate, and a Body Politick, by the Name of Mayor, and Commonalty, and Citizens, that there should be a Mayor, so many Aldermen, and so many of the Citizens, annually elected, that should be a Common Council, and that they should have Power to make By-Laws, to demise or grant their Lands, under the common Seal, in the name of the Corporation. If they doe any Act not within their Commission, is not that void? Suppose a Grant made to the Common Council, would not that be void? Suppose a Grant made by the Common Council in the name of the Common Council under Seal, or in the name of the Corporation, [Page 92] but not under Common Seal; is not all this void? This I only instance, to shew that their Charter and Authority is their Power and Warrant, they are to act by; did ever any man hear of, or sée a Charter giving the Common Council power to Surrender the Corporation? or was it ever thought of before these days? If then no such power by the Charter given, if they cannot doe it without power given them, shew me their power, or else I think I may conclude sure they cannot Surrender the Corporation without power. But the Common Council in London that is by Custom, and their power is by Custom. Then if the Question be, what is their power? it is answered, what they have used and accustomed to doe, that they may doe; what they have not used or accustomed to doe, that they cannot doe: for if Custom and Vsage be the authority, that authority can go no farther than their Custom and Vsage goes. Then put the Question, have the Common Council used to Surrender or Forfeit the Charter, no body can say it; what reason then is there for any man, to say they can doe it? It is probable that the Common Council in London, had first their Institution from some By-Law or Ordinance, though now not to be produced, but consumed by time. But be it that, or any other imagined Commencement, can it be imagined that those that gave them their Original authority, gave them power to surrender the Corporation, or forfeit it. Suppose that the power given them did authorize them not only to make By-Laws and Ordinances for the good order and government of the Corporation, to grant or demise their Lands and Revenues, but had some general words in it to act and manage the matters of the Corporation. Is it not against all sense to suppose that that which is deputed and constituted for the well-ordering and managing of the Corporation should have power to surrender it. Then as the Counsel of the other side argue, that because they may surrender they may forfeit: By the same reason, I hope I may argue, if they cannot surrender or dispose of the Corporation, they cannot forfeit. Next, Those Acts of the Common Council are not done neither in the name, nor as the Acts of the Corporation, nor under any Seal; but do import in themselves only to be the Acts of the Common Council. The Ordinance, That is made by the Mayor, Aldermen, and Commons in Common Council assembled. The Petition is the Petition of the Lord Mayor, Aldermen and Commons in Council assembled. Their Leases or Grants are in the names of the Corporations, and under the Common Seal and the Common Council only Ministerial to the Corporation in ordering, managing and disposing all for the benefit and advantage of the Corporation, to avoid the Inconveniency of assembling the numerous Body. But that any thing that hath but a ministerial power for the service and benefit of their principal, should have power to dispose of, sell, convey or surrender, and destroy their principal, is no consequence in Law or Reason. No Deputy-assistant [Page 93] or Bayliff hath such power, if he excéed his authority, his Act is void. Is it not so with all Authorities and derived Powers? what they doe beyond their authority cannot bind those from whom they derive it. It cannot be the Act of the Corporation, for a Corporation cannot make a Petition, no more than they can make a Déed, or subscribe a Writing, except under the common Seal.
Corporations cannot make a Lease at will, 12 H. 7. 25, 26. 9 E. 4. 39. licence a Man to enter upon their Lands, or doe any like Act, but under their common Seal. Nor can they commit a Trespass or Disseisin but by Command precedent, or Assent subsequent under their common Seal. How then can this be their Act? There is nothing in it that imports it should be theirs, nor ever intended to be theirs; it is not done by them, nor in their names, but by the Common Council, and in the name of the Common Council. If we may take notice of what is out of the Record, we know that they have in London a greater Assembly than the Common Council, viz. The Common Hall, wherein the Common Council are no more than others. Can the Petition of the Mayor, or Mayor and Aldermen, in their names be taken to be the Act of the Corporation? if that cannot be, why should the Petition of the Common Council in their own names be any other than their own Petition, as their Ordinance and By-Law theirs, and not the Corporations.
The Case of Corporations takes notice of their Power, as Common Councils, Rep. 4.77. to exclude the Commonalty and the rest of the Corporation. 13 C. 2. cap. 5. The Act allows the Common Councils ordering Petitions. But where is it to be found that it was ever said or thought on before, that they could forfeit or dissolve the Corporation?
(4.) But supposing all that I have said against me: And suppoposing the Acts of the Common Council to be the Acts of the Corporation: And supposing those Acts, viz. The making the Ordinance and Petition not justifiable or excusable; Then the great Point will be, whether they or either of them are such Miscarriages or Offences in Law for which the Charter, that is the very being of the Corporation, shall be forfeit.
This I call the great Point, for I think it to be as great in Consequence as ever any at this Barr, as if Magna Charta were at stake; for in my apprehension, not only London, but all the Corporations of England, and the Government of England will be deeply concerned in the Question. For let us but consider what a vast part of England is concerned in the Corporations of England.
1. Ecclesiastical or mixt, as Archbishops, Bishops, Dean and Chapters, Parsons, Vicars, Vniversities, Colleges, Hospitals of all sorts.
2. All the Cities and considerable Towns and Boroughs in England.
3. The very Frame of our Government is concerned; for one of the Estates of the Kingdom, viz. The Commons in Parliament, consists of Knights, Citizens and Burgesses; the Citizens and Burgesses are usually chosen by them that are Free of the respective Cities and Corporations, and where not chosen by them, yet the Elections are generally under their Power and Influence, and the Return made by them.
Perhaps also a Peerage is a sort of Corporation. Perhaps the World it self, at least this little World, will no longer be able to subsist in health than the due Order and just Temperament of the several Parts and Powers therein, are preserved, and contain themselves within their own Bounds. The taking away or Infeebling any principal Part brings a Lameness and Deformity, Pain and Disorder upon, and at length confounds the whole. The Laws answer their ends, whereof the principal is the preservation of the Government which preserves the Laws, they cannot subsist one without the other; therefore whatsoever it is that tends to the Subversion, or leaving at Will and Pleasure that which is so considerable in our Government as Corporations are, ought to be throughly considered.
The better to examine and consider this great Point: In the first place, the Reasons given on the other side are,
Object. 1. That if Corporations be not forfeitable for their Miscarriages, they will attempt and doe extravagant Acts, raise Sedition or Rebellion, and there will be no adequate Punishment to their Miscarriages.
Resp. In answer to this Reason,
1. There is no illegal Act that they can attempt or commit, but that they are under the same Severities and Corrections of Law as any other the King's Subjects not Incorporate are. Though it be true, that the Corporation it self is only a Body Politick, an invisible Body, yet the Members of it they are visible. If they as Members of that Corporation commit or doe any ununlawful Act, they are punishable for it in their own private Capacities. If they make any Ordinance or By-Law to raise Money unlawfully upon any of their Members, or others, the By-Law or Ordinance is void. If they receive or collect any Money by it, the Receivers and Collectors are to answer it, they are to be sued as any other Subject. Suppose a Lord of a Mannor or Market make an unlawful Order to collect or take Money from his Tenants or Coppyholders, or unreasonable Tolls in his Markets. This Order is void in Law, and those that collect or receive any Money by it, are answerable for it, and the Parties grieved have their proper Actions and Remedies, and perhaps the Markets, or at least the Tolls may [Page 95] be siesed, or forfeit for this Miscarriage. This is the Provision that by Law is made against such Exactions, and this is just and adequate & reasonable. And if a Corporation make such Ordinance, By-Law, or Order, and thereby there is the same receipt or Exaction, the Subject hath the same remedy, and there is the same Forfeiture of Toll or Market, as in case of any natural Person, or Lord of a Mannor, and the Provisions by Law made are just and reasonable, and adequate in this Case of the Corporation, as of the other. The like for any Offence that can be committed, it must be done by particular Members, and they must answer for it. And this is no new Opinion, 21 E. 4. 14. express that a Mayor and Commonalty, or other Body Politick, cannot commit Treason, although all the Commonalty doe commit Treason, every of them is a Traitor in his own person: I might cite other Authorities to this purpose, but they have béen already cited by Mr. Recorder in his Argument; and though the Counsel for the King would make these Books to be but some slight Opinions, yet unless they could shew some Authority, Book, or Case to the contrary, their despising or little valuing what they can find no Answer for, will not render the Authority and constant Opinions of our Books of less estéem than they ought to be. 'Tis no excuse if they doe an unlawful Act, that they are Members of a Corporation, or did it as a Corporation. No body can say this will excuse them; so, that notwithstanding their being a Corporation, they are subject to the Law, be the Offence Treason, Sedition, or any other Crime or Offence as, any other the King's Subjects are; every particular Member that acted or committed that Offence, is answerable to the Law for it. The particular Members that commit the unlawful Act, and all that act under their Authority, are subject to the same Law as all other the King's Subjects. And therefore this reason, that else there will be no Punishment upon them adequate to the Offence, and consequently a Mischief and Inconvenience is but a shadow, and nothing proportionable to the Mischiefs and Inconveniences attending the position of a Forfeiture of the other side. But consider the Injustice that would be of the other side, if this should be so; we know Assemblies determine their Act by the major Vote, and great struggling there is, as wée too frequently sée in their Debates and Resolutions, and carried by majority of one or two Votes, sometimes by surprizes and undue management, sometimes by fear and terror: Suppose an evil Act so carried or managed, is it reason that all the whole Corporation should be hereby forfeit? and thereby all other men to whom they owe any Debts, must lose them, and the many Interests and Livelyhoods depending upon the Corporation, the Customs, Courts, Offices, and Privileges belonging to it, endless to enumerate, shall all be undone and destroyed.
Obj. 2. The next Reason that hath been given is, That it is a general Rule in Law, that the abusing or misusing of a Franchise, is a Forfeiture of the Franchise.
Resp. 2. This is true in the sense that the Books do say it; for if a man misuse or abuse a particular Franchise, he shall forfeit that particular Franchise; but he shall not forfeit any other except it be depending upon and incident to it. And the Cases cited prove nothing farther.
22 Ass. p. 34. Br. Fran. 34.That when a man hath divers Franchises not depending one upon another, and misuseth one Franchise, he shall not thereby forfeit the rest, but only that which he misuseth. 8 H. 4. 18. Rep. 9. 96. b 24 E. 4. b Inst. 2. 43. And therefore the Cases cited; Where the Abbat of Crowland and the Abbat of St. Albans had Franchises of Custodies of Gaols; one would not be at the cost of a Commission of Gaol-Delivery, the other did detain in Prison after legal Discharge, and Fées paid. This was a misuser of those Franchises and Forfeitures. So also perhaps if there be a Franchise that hath Incidents to it; as, Pypowders to a Fair, Pillory to a Leet. An abuser of the Incident, as the Court of Pypowders, or the not having a Pillory, may forfeit the Market or the Leet. If the Lord of a Market take outrageous Toll, Stat. West. 1. cap. 31. Inst. 2. 219. he shall forfeit the Market. But doth this prove, that if a Corporation have Fairs, Markets, Gaols, or Leets, and misuseth any of them, that the Body Politick, the Corporation shall be forfeit. If this be so, the Abbats, they being Corporations, in the cases of the Abbat of St. Albans, and Crowland, should have forfeited not only the Liberties of having Gaols, but the very Corporations, or Bodies Politick, of being Abbats; a conceit never yet imagined. Can you say the City of London is either dependent or incident to the Markets; or the contrary, that the Markets are incident or dependent upon the Corporation, that they cannot be one without the other? Can this be said? If this cannot be said with reason, how can then the taking these Tolls admit they were outrageous, and a Forfeiture of the Market forfeit the Corporation? The making the Ordinance, supposing they made it, is but the mean by which they took it. Your Books only prove the abuse of a Franchise, a Forfeiture of that Franchise, or Incidents to it, and no other: But the Inference in this Case is not the Forfeiture of that particular Franchise; but of the being of the Corporation that owned the Franchise: which is a plain Non sequitur, unless you say the Corporation is incident to the Market. Arguments from general Rules are the most fallible, especially in Law; and that this is such, I hope most plainly to shew in the distinguishing the different nature of Franchises; which I shall doe presently, only taking in my way [Page 97] their next Reason that they offer, and answer both together: which is,
Obj. 3. That a Corporation is a Franchise; that it commenceth by Grant, and therefore Forfeitable and Surrenderable as other Franchises are; and if they be Surrenderable, then also are they Forfeitable.
Resp. I do agrée, that Franchise is a large word, it is of the like sense of Liberty or Privilege. Therefore in Quo Warranto Franchises, Liberties, and Priviledges séem to be of the same sense. To be a Subject born, and to have Liberty and Priviledge of a Fréeman, and no Villian, is a great Franchise; and therefore in Law, when a Villain is made Free, we say he is Infranchised, he hath the Franchise, Liberty and Priviledge of being a Fréeman. An Alien he is made Denizen by Letters Patents, a Person attainted is Pardoned by Letters Patents, and a restitution in blood granted and made a new Creature. By these Grants the Alien and the Person restored have such Franchises Liberties and Privileges granted them: that though before they were not capable to take hold, or enjoy, or Act as natural born Subjects or Freemen, yet hereby they have such Capacity granted: Next, I think it will be granted that this Franchise, Liberty, Privilege, or Capacity, is not surrenderable or forfeitable, except only in Cases of Treason or Felony, where they forfeit their Lives; by these instances this is proved, That it is no true position that whatsoever is grantable is surrenderable, and if surrenderable forfeitable; which is one of the Reasons given by the King's Counsel, why a Corporation is forfeitable, for these Franchises or Privileges are by Grant, and yet not surrenderable or forfeitable; and this also shews that Arguments general and from general Rules are most fallible, and fit only to take weak apprehensions. But next consider, what it is to be a Body Politick or Corporation. A Body Politick is framed and constituted in similitude or likeness of a natural body, with Capacity to take hold and enjoy, and act as a natural body, and can no more surrender or forfeit his being while the members of that Body are subsisting, than a natural body can while alive. It is only a Capacity framed and created in a multitude to be, and act as one person, they are incorporate and made one Body Politick that have Power, and Capacity or Franchise of acting taking holding and granting; this is their Franchise, admit it so, but differs from others. Franchises and Liberties of all other Natures are Estates and Inheritances grantable and conveyable from one to another as other Estates are, this is no such thing grantable or transferrable; other Franchises and Liberties affect the King's Subjects, and are Privileges claimed, wherein the King and the rest of his Subjects not claiming the Franchise, are more concerned than in this of being a Body Politick; for other Franchises [Page 98] either convey some Profit from the King, as Felons, Goods, Waifs, Estrays, Wrecks, or the like: Or affect his Subjects, as Courts, Gaols, Returns of Writs, Fairs, Markets, and the like. But this of being a Body Politick, is only a Capacity to be a Person capable of having and holding what may be granted unto it; and of granting and acting as a natural Body, and affects the King, or other his Subjects, no otherwise than giving Capacity to take, hold and enjoy what they can get as other Persons capacitated may. Other Franchises, Liberties and Privileges are distinct and separate Estates, and if any one be forfeit, as it may for misuser, the rest are not; except incidents and appurtenances. But if the being of a Corporation be forfeited, All their Estates, Lands, Goods and Chattels are gone at once: So that though you admit and call this a Liberty or Franchise, 'tis nothing like in its nature to those things generally known and understood by the name of Franchises or Liberties; and general Sayings are generally to be understood of such things as are generally so taken and called. If then there be such great and apparent difference betwixt this of the being a Body Politick, supposing it being in a general and large sense, a Franchise, Liberty or Privilege, and other particular Franchises, admitting that which is said, that the Misuser of a Franchise is a Forfeiture, holds generally true, yet it is not in every particular true, where there is such apparent difference and reason to distinguish as betwixt the being of a Corporation or a Body Politick, which is only a Capacity, and other particular Franchises, which are Estates; there is also apparent reason to distinguish betwixt one and the other, they being so much differing one from the other in nature and reality. But next, That this was never taken in Law to be such a Franchise, Liberty, or Privilege as was comprehended under the general meaning of Franchise or Liberty. By Sta. of Glost' Writs were to go to all Sheriffs forty days before the Eire of general Summons, 6 E. 1. Inst. 2. 278. for all to come in at the Eire to claim their Privileges; and the second day of the sitting of the Iustices in Eire a Proclamation made to the same purpose. In the Comment upon that Statute it appears, Inst. 2. 281. 282. that if the party did not appear, his Franchises were seised into the King's hands, Nomine districtionis, and if not replevied sitting the Eire, they were forfeit or lost for ever. If the party did appear, and did not claim, then they were lost for ever. In all the Procéedings in Eire, there is no such thing can be found: That the Corporations did come in and make Claims to their being Corporations or Bodies Politick, or that ever any were seised if it be seisable into the King's hands, or was forfeit for not Claiming. Fulher and Heyward's C. Palm. 491. It appears, that the Dean and Chapter there Surrendred their Charter, and all their Mannor Lands, Possessions, Privileges, Franchises and Hereditaments, Spiritual and Temporal, and this with intent [Page 99] to Surrender, that there might be a new Corporation erected; as is recited in the Letters Patents of new Erection. In this Case, Rep. 3. 75. And. 2. 120. Jones 168. resolved, that by this Surrender the old Corporation was not surrendered. This Iudgment doth conclude, and must be given, either because by the word Franchise, and the other general words, the Franchise of being a Corporation was not comprehended; or if the word's sufficient, and did comprise it, that it could not by Law be Surrendered. This I think sufficiently shews that Corporations were in Law as Persons natural are, and in like manner claimed, and that the being a Body Politick or Corporation, was not to be claimed, comprised, or meant within the general words, Franchises, no more than the Liberty or Franchise of Denizen, or Manumission. Next, No instance can be given of any seisure of any Corporation or Body Politick for any Forfeiture, Seisure of their Liberties, or putting Officers upon them, is quite another thing, as I shall shew presently: So that these general Sayings in Law-Books, that Misuser of a Franchise forfeits the Franchise; neither in Law or Reason extends to the being of a Body Politick or Corporation, but is applicable only to particular Franchises of other natures; and the other reason, that that which is grantable is forfeitable, is as fallacious as before appears.
3. For the Records cited to prove that the Corporation or Body Politick may be Forfeited, I will state those that are most Effective, and doe them right therein.
Johannes Dennis, Mayor of Sandwich, P. 9. E. 1. and thrée more, were attached to answer Domino Regi de placito transgr' & unde Robertus de Stokho, Sheriff of Kent, qui sequitur pro ipso Rege, complains that he had sent his Bailiffs (naming them) to make Execution of the King's Writ, in Villa de Stanore, qui est Barona domini Regis, and that the Defendants, with Swords drawn, took away the King's Writ, and trod it under their feet, and would not suffer it to be executed, unde dicit quod deterioratus est, & damnum habet ad valentiam 2000 Marks. The Mayor appears, and pleads to the Iurisdiction, that he ought not to answer this matter, except in the Court of Shipway. The Sheriff replies, That Stanore is the King's Barony, belonging to the Barony of St. Austins, and relyes upon a Record before Iustices in Eire, where an Amerciament upon that Vill' was formerly set. The Mayor refuseth to plead over. Then a day is given over: Then 'tis entred thus,
And then goes a long Agreement betwixt the Abbat and the Men of Sandwich and Stannore, concerning their Iurisdictions and Courts:
This is the Record at large; and for the Extract in the Collections at Lincoln's Inn, whether it be of this Record, or any Execution that went out upon it, non constat: But that I think it could not be upon this Record; for the Record is not 30 Marks annuatim, as the Abstract is, and the Entry of the videtur at the conclusion, quod Judicium extendit contra Barones, Quinque Portuum, & eorum Libertates, ut mihi videtur, that is not my Lord Hales his Note, nor doth it appear whose it was. Out of this Record how can a man infer that a Corporation shall be forfeit for the Miscarriage of the Mayor, or Officer, how doth it appear from hence, that they should lose or forfeit their being a Corporation. By amittat Libertatem all that is meant thereby is their Liberty in Stannore, or the Liberty they claimed to be impleaded in the Court of Shipway, and the Note in the Extract, videtur quod Judicium extendit versus Barones, must be, I think, taken to be as to their Liberty in Stannore, or to be sued only in the Court of Shipway. I have taken the more notice of this Record, because it hath countenance of a judicial Proceeding; but as to all the other Records cited,
A Writ to the Sheriff of Gloucester, reciting, That the King, 6 E. 2. r. Clau. Membr. 5. for injuries and contempts done by the Mayor and Commonalty of Bristol, the Liberty of that Vill' by Bartholomew de Baddlesmere, Custos of that Vill' into his hands had seized. The Writ commands the [Page 101] Sheriff, that the Custos should have the Execution of Writs, as the Mayor and Bailiffs used to have. And the times of Henry the Third, Edward the First, Edward the Second, and Richard the Second, there were frequent Seisures of the Office of Mayor, and the Kings did put in a Custos in the place of Mayor, or made a Mayor, and these are called Seizures of Liberties.
King Henry the Third put in a Custos over London, 49 H. 3. which continued till the 54th of his Reign, and then taken off, and the City restored to its Election.
Edward the First put in a Custos, 15 E. 1. and continued so to doe till the 25th Year of his Reign, and then taken off.
The 14th of Edward the Second a Seisure of the Office of Mayor by Henry de Staunton, and his Fellows, Iustices in Eire in the Tower, and Mayors put in by the King till the 20th of Edward the Second, and then restored: But for that of Richard the Second, give me leave to digress, and give you the state of it out of the City Registers, which are more full than these cited.
A Writ from the King to the Mayor, Sheriffs, 16 R. 2. July 22. Lib. H. fol. 269. b City Reg. and Aldermen, commanding them to come with twenty four principal Citizens, before the King and his Council at Nottingham, in crastino Sancti Johannis Baptist' tunc prox' sut', and to bring sufficient authority from the Commonalty to answer such things as should be objected. They appeared, and had a Letter of Attorney, ubi pro diversis defectionibus in Commissione suo sub communi Sigillo, & aliis de causis, the Mayor and Sheriffs were discharged of their Offices, and committed diversis Prisonis; and afterwards, the first of July, Sir Edward Dallingrigg, made Custos by the King, came to the Guildhall, and his Commission being read, he was sworn before the Aldermen, secundum quod Majores ante jurare solebant; the King also made the Sheriffs, and they were also sworn. This is also entred in the City Register, Lib. 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 'tis 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 [Page 102] 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 [Page 104] 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, 'tis more a marvel they were not destroyed. The Statutes made in these times, shew not only the Disorders, but that the Liberties mere greatly Infringed, or else there would not have béen Statutes to confirm them; whether the Infringing or Seising were the Cause or Effect, is hard to know; but just before in those times there were undoubtedly many extravagant Acts of all sides, which produced Magna Charta, made the 9 H. 3. for confirming of the Liberties and Privileges, not only of London, but of all other Towns: and after these times, in the thrée Reigns of the thrée succéeding Kings, how many other Statutes for confirming the Liberties and Privileges of the Cities and Towns were made 1 H. 4. cap. 15. The Penalties and Forfeitures imposed by the Statute 28 E. 3. cap. 10. upon the City of London put into the same Condition with other Cities and Boroughs as to Penalties and Seisures.
A Statute confirming to all the Cities and Boroughs, the Liberties and Franchises which they by former Grants or Confirmations had, viz. 4 H. 4. Cap. 1.
Confirmed in like manner, by 7 H. 4. Cap. 1.
Again confirmed in like manner, by 3 H. 5. cap. 1.
Again confirmed by Statute of 2 H. 6. Cap. 1.
By which it appears what a sense and memory they had of the Seisures that had béen of their Liberties and Privileges, that they never thought them sufficiently confirmed; but they were sufficiently confirmed; for from the time of R. 2. to this day we do not find any Seisure of any Liberties or Franchises, or Custos made or put upon them. That which was in those days of Violence done, shew them the worst of times, but are no Precedents for the best. But next,
Supposing and admitting these Records of these times of good Authority, and as authentick Precedents as can be, they are so far from proving against me, that I hope to make it most plainly to appear, that they are strong and plain Authorities and Evidence against them, and for me.
It is ordinary in Disputing or Arguing to lose the point disputed or argued. That I may not commit so great an Error, but may evines and make plain what I have affirmed,
Give me leave to look back to the Information and Replication, and from thenee to make the Points that we argue single, clear and open.
The Information that saith that we usurp'd upon the King to be a Corporation and Body Politick, but in truth are none.
The Barr sets forth the title to be a Corporation by Prescription time out of mind.
The Replication that endeavours to avoid the Bar, by allowing that we were once a Corporation lawfully; but that by our Miscarriages, we have forfeited our being a Corporation, and thereby became none, and after that usurp'd to be one.
So that, that which the other side maintains, is, That by our mis-feasances we have committed a Forfeiture of our old lawfull and rightfull Corporation. This I deny; the Affirmation is upon them to prove, and they producing no Record that expresses any such Forfeiture of a Corporation, but only Records generally saying, that the Liberties should be Forfeited or Seised, the question is, what the meaning is in these old Records of Forfeiting and Seising Liberties. Mr. Attorney was pleased to take it, and so did Mr. Solicitor, as I think, that Forfeiting and Seising were much one. I shall not dispute it; but whether in any of those Records the Corporation or Body Politick were by these words taken to be forfeited. Mr. Attorney was so carefull to avoid the Consequents of a Forfeiture of a Corporation, which are so great and destructive, that he would not by a Iudgment in a Quo Warranto against a Corporation have the Corporation determined, no more than he would by the Forfeiture ipso facto have it determined, but that there should be some Seisure into the King's hands; but what that is, or how to be understood, I cannot imagine. For if the Corporation be not to be dissolved and determined, in whom should it rest or remain after such Forfeitures, or during such Seisure, shall it after Forfeiture remain in the same Persons that it was in, shall it subsist, live and act as before? or shall it be in limbo Patrum, or in Nubibus? Is a Corporation transferrable to any other Person or Persons? Can a Corporation be conveyed or transferred? that is impossible; and so it appears in the Dean and Chapter of Norwich Case, and Fulcher and Heyward, and 1 Inst. in the Case of the Homage Ancestrall before cited. That a Corporation is not transferrable from one Body of Men to another; therefore the King cannot possibly have it, nor can he grant it. Ay, but saith Mr. Attorney, it shall be feifed, and in the King's hands; what is meant by these words? How can it be in the King's hands, if not transferrable? Next, What shall the King doe with it, shall he grant it to others? No, that is impossible, by the Cases cited, it so appears the King may make a new, but he cannot grant an old Corporation, because not transferrable. Then if he cannot grant, if it be not transferrable, if a Corporation or Body Politick so by Law framed in similitude of a natural Body, then it is no more transferrable than a natural Body is. The Body Politick cannot be taken out of the hands of the Persons [...]. From hence then, if this be so, it will follow of necessity that the Corporation, if it cannot be transferred to the King, or by the King's Grant out of the Persons in whom it is to [...], it [...] remain where it is, or be dissolved. Next, that which I shall shew is,
That by the words forfeiting and seising Liberties in those old Records, it cannot be meant forfeiting and seising a Corporation or Body Politick they still continued. But that which is the true sense of these words, Forfeiting, and Seising Liberties in those Records was, if the abuse or misuse were of a particular Franchise, as of Courts, Prisons, Markets, or the like, the King had them forfeited to him. If the abuse were by a Corporation, they Acted by their active Parts, by their Mayors, Bailiffs, Sheriffs, Coroners, or the like; the King seised these Offices, turned the Corporation Officers out, and put others into their Places. This was the Course in the Eires, where these Seisures in those days usually were. But for seising Corporations as forfeit, there hath been no instance of it in any time, but the contrary is most evident. For the Corporations, notwithstanding the supposed Forfeitures or Seisures, remained still in being; and this is evident even to sense. The Seisures that have been mentioned, have been of London, Bristol, Glocester, Cambridge and Cinque-Ports, Ipswich and Winchester.
1. First, I offer to your Consideration, whether these Cities of London and Bristol, Glocester, Cambridge, and also the Cinque-Ports, ever since have not continually in all Pleadings, Claims and Titles, made themselves a Title by Prescription; Are they not by Prescription to this day? Do they not claim their Markets, Tolls, and all their Privileges by Prescription? Do not the Acts of Parliament that immediately follow these Seisures made by H. 4. H. 5. H. 6. in the times succeeding, all confirm their Privileges, not a word of granting new Privileges, but confirm the old; which shews plainly, that in those days the Corporations were not, thought or imagined to be determin'd or dissolv'd.
By these Seisures or supposed Forfeitures, the enjoynment or possession for the space of thrée Hundred years, is evidence sufficient of their remaining and being Bodies Politick by Prescription, which they could not be, if they were forfeited as pretended. For by Forfeiture, they must mean the losing their Corporation, or being divested; no other sense can be, or ever was of Forfeiture; Could they forfeit them, and yet keep them? Could they lose them, and yet have them? if they could not, then 'tis plain that since they always have had them, they never forfeited or lost them. But for farther Evidence hereof, I shall make most plainly to appear, That during the very times of these Seisures, the Corporations remained and acted as Corporations; and that at that time, it was never thought or imagined, that during the Seisures the Corporations were forfeit; all that was done was, that the Election of their Mayor or of their Sheriff was de facto taken from them, and either a Custos, or a Mayor, by the King put over them, and continued till those Kings displeasures were over, and then they chose these own Officers again; But no thought then of forfeiting the Corporation. By the City Books, as well [Page 107] as Records, this is most evident. The putting a Custos by King E. 1. continued for the space of Eleven years, from the 15 E. 1. to the 26 E. 1. and then they chose their Mayor again. By the City Books it appears, that their Court of Hustings all along continued, as at other times, Lib. A. fol. 50, 51. 135. Aldermen all along.
Radulphus de Sandwyco Custos Civitat' London, 18 E. 1. Henricus le Walleys, and others, Aldermen (naming them) & universales Communia ejusdem Civitatis, make a Conveyance of an House to John de Bangwell.
The Court of Aldermen holden before the Custos and Aldermen. 18 E. 1. Lib. A. fol. 110.
With the King's Remembrancer in the Exchequer, 16 E. 1. r. 1. Cives London venerunt coram Baronibus & presentaverunt Johannem de Canluar' & Willielmum de Betoyne ad respondend' pro Civitat' predict' & Com' Middlesex, de his quae ad Officium Vicecomitis pertinent, & ad hoc faciend' prestiterunt Sacramentum.
Ibidem, 18 E. 1. Ro. 1. The Presentment and Swearing two other Sheriffs.
Ibidem, The like. 21 E. 1. Ro. 3.
Ibidem, The like. 23 E. 3. Ro. 3. 21 E. 1. Lib. C. fol. 19. b.
Auby le Artheir attachiatus fuit ad respond' Communitat' Civitat' London' de placito, for that he, being no Fréeman, Merchandized in the City.
Another like Suit against an Vn-fréeman. Lib. C. fol. 7. b
A Writ of Right in the Hustings, 22 E. 1. brought by the Corporation. Communitas Civitat' London per Radulphum Pecocks Attornatum suum petit versus Hugonem Episcopum de Bedlam unum Messuagium, &c.
All the Aldermen, 26 E. 1. Lib. E. fol. 38. and twelve Citizens were called before the King and his Council, and the King restored them the Election of their Mayor, and they chose Henry de Gabeys Mayor. And on Monday following comes the King's Writ, whereby the King for good Services, Reddidimus & Restituimus Civibus London Civitatem una cum Majoritate & libertatibus suis quas certis de causis dudum capi fecimus in manum nostrum. So that hereby it most evidently appears, the Corporation was not forfeit, lost, or dissolved, only a Cuilos put over them which acted in the place of Mayor; and when removed, they chose their Mayor again.
The Liberties not forfeit, only seised into the Kings hands; so saith the Writ dudum capi fecimus in manum nostrum. The Record of Cambridge I have looked upon, It plainly appears in it, that the Corporation was not forfeited and dissolved, as you suppose. For it appears, that when they submitted to the King to doe with their Franchises what he pleased; yet it was salvo to the Mayor and Bayliffs, their response to all other Matters. And afterwards, at the same time, the King grants to the same [Page 108] Mayor and Bayliffs divers Liberties, by which it appears that the Corporation was not forfeit, but still in being, notwithstanding the Seisure and Forfeiture.
14 E. 2.The Seisure that was by King Edward the Second, was in no sort any Forfeiture or Determination of their Corporation; but either under a Custos, or under a Mayor put in by the King.
Lib. E. fol. 11. bThe Custos, Aldermen, and Commonalty appeared, and turned out some of their Aldermen.
Lib. D. fol. 6.They chose and swore their Sheriffs, and by this time they had a Mayor again; but the Office of Mayoralty, granted them by the King.
16 E. 2. Lib. E. fol. 146.The King grants to Nicholas de Farringdon, the Office of Mayor quamdiu nobis placuerit.
20 E. 2.They had a Writ restoring to them the Office of their Mayor again.
16 R. 2.Then for the Seisure of R. 2. that continued but from the 22d of July unto the 19th of September following; and the form or colour of Law that they had for that, was the Statute of Edward the Third; 28 E. 3. and the Custos put in sworn at Guildhall, and took the Oath of the Mayor, Lib. H. 269. b. 16 R. 2. as appears in the Book which I cited; where it is mentioned to be upon that Statute.
But for farther Evidence,
In the Treasurer's Remembrancers Office in the Exchequer, 4 E. 3. rot. 2. in Bago de Quo Warranto in Itinere Northampton & Bedford, Quo Warranto versus Villam de Bedford; in that Record are these things: First, That the Village of Bedford had not at the last preceding Eire made claim of divers Liberties, and thereupon in that Eire adjudged, quod omnes Libertates non clamat' capt' fuissent in manus Domini Regis, and had not been replevied, but Corporation not seised. Thereupon the Corporation offer a Fine of 8 Marks to the King, pro licentia clamandi their Liberties, and admitted to fine: But then it appeared, that the Mayor, and the Coroners had sat in Iudgment, and condemned men for Felonies committed out of the Iurisdiction; and thereupon
Hereby it appears, that the course was not to forfeit or dissolve the Corporation. They never were so unreasonable; for hereby all their Lands and Goods, and all the Debts owing by them, or to them, would all be lost: All they did was, they put in Officers to preserve the Corporations. So that I think there is nothing more plain, that though the Liberties were seised, and that Officers, Custos, or Mayors, were put upon them; yet the Corporations, or Bodies Politick, or their Liberties, were not forfeit, or determined: If they had been either forfeited, or determined, could the Writs of Restitution have set them up again? The old could never be restored or set up again, but by Act of Parliament; they might have had new Charters, and have been made new Corporations, but the old could never have been restored, if once forfeited, as now imagined. So that the Point betwixt us is, Whether the Records of E. 1. E. 2. and R. 2. of Forfeitures and Seisures of Liberties, supposing the Causes or Offences for which they were seised were very great and provoking, as in all probability they were, do prove that thereby the Corporations were forfeit, dissolved, or determined? It appears they were not forfeit. You can never avoid it. If abusing the Franchise or Liberty of being a Corporation be a Forfeiture, as you affirm, and that they were seised for being forfeit; then the Offences that were committed by these Corporations in those Princes times, were Forfeitures, and consequently the Seisures dissolved the Corporations. They could not forfeit and lose their Corporations, and yet keep them. And that they still had their Being, is most evident by the Records of those times, shewing, that they acted, and enjoyed their Corporations under those Seisures, only a Custos instead of a Mayor, all other things the same. That they have in all Ages ever since been allowed to be Corporations by Prescription, never denied or questioned. That the Acts of Parliament immediately following, confirming their Privileges, never questioned their having them. Never any thoughts of making void any Forfeitures by these Acts, or any new Grants, but always pleaded by Prescription. These things plainly shew, that the Offences committed in those times did not forfeit the Corporation; and all that dark Authority they have out of those Records is directly against them, proves only that these Abuses gave only Cause of Seisure of some Offices, but no Forfeiture of the Corporation, that still continued.
Having thus answered those old Records, and shewn that they are of Authority for me against them. And since it hath been stirred in this Case, whether a Corporation, or Body Politick be surrenderable or not? And insisted upon by the other side that it is, and from thence an Argument drawn to prove, that if surrenderable, 'tis forfeitable. Whether it be surrenderable or not, perhaps is also doubtfull, that I think a man cannot argue from it any thing. First I am sure there is no great reason why it should be; for since that men that are of the Corporation take upon [Page 110] their coming to be free an Oath to preserve the Rights, Liberties, and Privileges of it; and since the Active Members are intrusted for all the other Members that elect and chose them, and also for their Successors; I cannot see how a man can satisfie himself in so doing.
Rep. 11. 98.Sr. James Baggs Case; They forfeit their Freedom by doing contrary to their Oath and Trust.
If every Freeman by his Oath and Trust be obliged to seek the Benefit of the Corporation, to surrender is against the Oath. The Law seems to have a care of preserving Corporations, and therefore provides that the taking any new Charter, though there be many Alterations in Offices and Names, yet doth not surrender the old. But were it of any other Franchise, the taking anew of the same thing is a Surrender of the old.
Dean and Chapter of Norwich Case, Rep. 3. 73.
Jones, 266. Fulcher and Heyward's Case séems a strong Case to prove it not surrenderable. And though the Bishop did not in that Case joyn in the Surrender, that cannot hinder; because the Bishop is no part of the Corporation, and therefore cannot hinder them to surrender if they will.
4 H. 26. 22. bA Vill' Incorporate, by the name of Bayliffs: The King de nova Incorporates them by the name of Sheriffs; Are their Privileges that they before had gone? no Dieu defend, saith the Book. But this being not my question, I intend not to debate it throughly, but to kéep to the point of a Forfeiture of a Body Politick or Corporation, and farther to examine the reasonableness and justice of this Doctrine of Forfeiture, and see how adequate and just it is; for that is the thing, I perceive desired.
1. First, Their Position is, That a Corporation or being of a Body Politick, is a Liberty or Franchise, and if abused or misused, is forfeited, determined and dissolved.
That I may a little understand this Position, and consider of Abuse and Misuse, and of the extents and consequences of it. By Abuse or Misuse, every Act that a Corporation doth, that is not justifiable by Law, is, as I take it, an Abuser or Missuser. If a Corporation receive any Money that is not due to them, if it be by virtue of any By-Law, that is a Forfeiture, though it be but a Groat. What if they by their Common Seal command their Servant to enter into such Lands, or Distrein such a man's Cattle for Rent not due; Is not this a taking upon them to oppress the King's Subjects, and to extort from them their Lands or Moneys where not due? this is a Misuser. A Body Politick, as I have said, is but a Person created in resemblance of a natural Person, to have a Capacity to take, hold, and enjoy to particular ends and purposes. And hold or enjoy is not possible, without acting; and all that Act must of necessity be subject to [Page 111] Errors sometimes, in their actions as natural Persons are. And must it be so penal to them that every Error, Misuser or Abuser, must be a Forfeiture? Can it be reasonable or just in Law that this can be? Laws are made for Preservation, not for Destruction; if every Abuser or Misuser forfeit, be it a small Transgression, is it either reasonable or probable that any Law shall punish it with destruction of the Body? The greatest Offence, be it Treason or Rebellion, or the least illegal Act, Offence, or Misdemeanour, must have the same measure of Punishment by this Rule, and the Law then doth not distinguish. If a natural Body, or Person, hath a Market and orders his Servants to take such Tolls, and he takes them; What would this Crime be, besides Forfeiture of his Market? Why should a Corporation then not only in such Case, or for any Offence or Miscarriage to the value of a Peny, forfeit and lose, as in the Case of High Treason, his Life 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. [Page 112] 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 [Page 113] 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 Corporation, if its Duration and Existence be so fickle and infirm, that every Abuser or Misurer shall forfeit it? There will be no need of Officers to be amoved, thereby to determine this Corporation at will and Pleasure, this Position contains enough to doe all. These great consequences attending this Doctrine of Forfeiture, are Reasons to prove the Law otherwise.
Resp. This is wonderfull, and a great Compliment to the City, as I take it; let us not flatter or deceive one another. We are not now in the irregular days in the Records mentioned, nor in such fort of Proceedings as in those distracted times. Let us not go by blind conjectures, out of old Records, and bring in unknown ways. We are now in a Quo Warranto, which, as Mr. Attorney truly saith, is in the nature of a VVrit of Right; and a VVrit of right is the highest. VVrit that is in the Law, Rep. 9. 28. Inst. 2. 282, 495. and the Iudgment therein, and in this Quo Warranto must be conclusive to all Parties. If given against the Defendants, it must conclude them for ever, and dissolve their Corporation, and if given against the King, he shall never hereafter bring it in question for any cause precedent. Cook's Entries 527. D. hath a Precedent of it, Consideratum est, quod the Defendant de & in Libertatibus, Privilegiis & Franchesiis pred. in Informatione predict' specificat' nullo modo se intromittat, sed ab iisdem penitus excludatur. The like against Ferrers, and the Virginia Company, and many others may be found. M. 21 Jac. r. 9. The Court cannot alter the Iudgment, it will be erroneous if they doe. And to talk of a Iudgment of a Seisure, what is the meaning of it, or such Iudgment? Is it final or not final? The Court must give a final Iudgment, that the Party, if he think fit, may have his VVrit of Errour. The Court will not take any of your old Records to go by, if any such to be found, that would warrant any other Iudgment: Therefore a Seisure, without such a Iudgment that determines the Corporation, cannot be any way brought to pass, as I believe, nor can I understand in whom, by your Seisure, you would have the old Corporation to subsist. Transferred from the Persons in whom it now subsists I think is impossible, but dissolved by your Iudgment it may be: And I hope your Lordship will not be induced by singular unwarrantable Things. That a Iudgment should be given that shall neither dissolve the Corporation, nor continue it, that shall neither be for Plaintiff nor Defendant, that shall leave the Corporation neither alive nor dead, but in Transitu, or Limbo Patrum: A Iudgment ‘Quod capiantur, or quod Libertates & Franchesii predict' seisiantur in manus Domini Regis.’
VVas there ever any the like? VVhat shall be understood by it? Shall we be afterwards a Corporation? Shall our Magistrate continue? Shall we have our Lands, Markets, Tolls, Customs, or Franchises, or not? Or shall we be none, and yet not dissolved? I must confess I am confounded in these Notions.
Next, As to the Authorities in Law for me:
1. I take it to be a great Authority for me, that there is no Precedent, or Iudgment, or Book Case, produced or found, that ever a Corporation was forfeited. It lyes upon the other side to produce it, or shew it, and no doubt they would, if there had béen any, but there is none by the Authorities they cite; you may easily perceive, any sort would not be omitted.
2. The Nature of a Corporation, as our Books do describe it, shews it not forfeitable. I take it plain out of the Case of Sutton's Hospital, and the other Books there cited. Rep. 10. 92. b. 21 E. 4. 72. A Corporation aggregate is Invisible, Immortal, and rests only in Intendment and Consideration of Law, cannot commit Treason or Felony, be Out-lawed, Excommunicate, hath no Soul, cannot appear in Person, cannot doe Fealty, cannot be Imprisoned, not subject to Imbecility or Death. Br. Corp. 24. 34. They cannot commit any actual Trespass or Disseisin, except under their common Seal, by command precedent, or assent subsequent; when our Books say, that they are a Body Politick, and rest or have their being in Intendment or Consideration of Law; thereby is meant, that that they are by Law enabled to Act to particular ends and intents, answerable to their ends and creations. Their ends or creations are only to be subservient to the publick Good, and Government and Preservation of the City or Town Incorporate, of the Members thereof. And if there be any Act done by the Members that are the active part of such Corporation, to any other intent, end, or purpose: This, not the Act of the Corporation, but of the particular Members, and they only answerable for it. And as to particular Offences and Miscarriages in this Case alleadged, it cannot be denied, but that the particular Members are answerable for it; and if they, then according to all Books, they ought not to be doubly chargeable or answerable in both Capacities. And the Case cited out of Bagg's Case, of a Fréeman convict of Perjury, and thereupon Disfranchised, doth not prove that they shall be punished in a double Capacity, for the Corporation is not thereby punished, but preserved. The being of a Body Politick, is only a Capacity, and in resemblance of a natural Body, and no more forfeitable than a natural Body. It is seising & forfeiting of Liberties that we meet with, that is such as are generally spoken of; as Markets, Courts, Iurisdictions, and the like: And in the old Records, by seising the Liberties of a Corporation, is meant, the taking from them their Officers, and putting in others upon them for a time. But a forfeiting, dissolving, and determining the Body Politick, never was yet done or known, nor, as reasonable to believe, ever entred into any mans thoughts till now; for I have already shewn, that Offences and Miscarriages that were committed by the Corporations in those troublesome Times of E. 1. E. 2. and R. 2. for which their Liberties were seised, were not Forfeitures and Determinations of [Page 116] those Corporations, they all remain Corporations by Prescription to this day: And I have also taken notice, that the Acts of Parliament that were made in the succeeding Kings Reigns, of H. 4. H. 5. and H. 6. are only Acts of Confirmation to the Cities and Boroughs, of the Liberties and Privileges. From that time till within these three years, I believe it never entred into any mans thoughts that a Corporation was forfeitable; for farther proof whereof, divers other Statutes, and the whole series of matter is Argument.
15 H. 6. cap. 6.The Statute of H. 6. that provides against Abuses and Exactions made by Societies Incorporate by their By-Laws and Ordinances, and appoints a Forfeiture of ten Pounds, and of their power to make By-Laws. To what end should this be, if the Corporations themselves were forfeited, or thought so to be.
The Statute of H. 7. recites the Statute of H. 6. 19 H. 7. cap. 7. and the Exactions and Abuses by Fellowships, by their By-Laws and Ordinances, and Ordinances, and appoints a Penalty of forty Pounds upon a they exact Money by an unlawfull and unwarranted By-Law, not examined and signed by the Chancellor and Chief Iustice.
The Statute of the 12 H. 7. cap. 6. sets forth grievous Exactions by the Fellowship of Merchant Adventurers, 12 H. 7. cap. 6. by their By-Laws, and imposeth a Penalty for the future.
The Statutes 22 H. 8. 4. 28 H. 8. 5. shew like Exactions by Corporations upon Apprentices by their Ordinances and By-Laws, provides Remedy, and enacts Penalty. If in those times it had béen thought or imagined that a Corporation had been forfeitable, every of these Offences forfeited it, what need farther Remedy. In the Case of Hoddy and Wheehouse, of excessive Toll by the Town of Northampton. Moor. 474. 39 Eliz. In the Quo Warranto against a Corporation, Palmer. 77. though the Question was concerning their taking Toll, and whether they had forfeit their Market, or only their Toll, no thought of forfeiting their Corporation ever mentioned.
So that I think I may conclude with the tumultuous times of E. 1. E. 2. and R. 2. what was then done, doth plainly shew the Corporations were not forfeit or dissolved. That by all the Acts of Parliament, and Proceedings in almost all the Reigns of any length or duration, from that time to this very Case, the Opinions and Thoughts of men were otherwise; as by the Statutes and Transactions appears, Not one Opinion, Book, or Authority produced, or to be found.
The great Concern not only of this great City, but of all other Cities, Towns, and Corporations Ecclesiastical and Temporal, all depend upon it. And which is more than all, the very Government by Law Established, will be in great danger of Alteration by it.
I have argued long, and tryed your Lordships patience; the weight and length of the Case, and rareness of the matter, there never having been the like before in any Age, will, I hope, excuse me. But besides the whole frame and foundation that the other side have laid, being all built upon general undigested Notions, as I take it, viz. That Abuser and Misuser of Liberties forfeits them, without distinguishing betwixt one thing and another. That the words Forfeiting and Seising Liberties, found in old Records, should be Authorities to prove forfeiting Corporations or Beings of the Body Politick, though no such thing then, or at any time since, till very lately, ever thought on or imagined. It was necessary for me to open and set forth these general notions, and to explain and distinguish; which, I hope I have done, that it may appear what the sense of them is, how far they agree with Law and Iustice, and how far not. And if in the doing hereof, or the setting out the repugnant or inconsistent Matters or Opinions arising in this Case to maintain this Quo Warranto, I have expressed my self in any other manner than became me, I humbly beg pardon for it; and that it may not reflect upon the Cause, nor prejudice it.
Vpon the whole Matter,
If this Information brought against the Body Politick for Vsurping to be a Body Politick, ought to have been brought against the particular Persons.
If it be repugnant or contradictory, that a Corporation can usurp to be a Corporation; that a Body Politick or Being can usurp to be a Body Politick or Being, before it had a Being, or to be that same Body Politick or Being, which it was when it did usurp.
If forfeiting a Franchise, or Liberty, or other Estate, cannot determine or vest that Franchise or Estate in the King till the Forfeiture appear on Record. Then the old Corporation supposed to be forfeited, if it were so, did notwithstanding, and yet doth continue in being, there being no Record to determine it; and consequently that which is pretended a new one by Vsurpation is impossible.
If by Seisure into the King's hands (as pretended) the Continuance of the Corporation be intended; How inconsistent is it with Law or Iustice to continue any thing in the King that is wrongfully usurp'd, and the Parties to be punished, fined, and committed for usurping.
If Mr. Attorney's Replication taking issue upon our Prescription to be a Corporation, and going over and alleadging several distinct Causes of Forfeitures, cannot by Law be maintained; and in the Example doth introduce a way to bring all mens Estates subject to Mr. Attorneys will and pleasure. For, let any mans Right be as good as can be, it will be scarce possible to defend it, if such Pleadings as in his Replication be allowable by Law.
Then be the matter in Law as much against us as possible; yet Mr. Attorney can have no Iudgment for him upon this Information.
Next, Supposing the Information all good in Law. Yet,
If the Iudgments, Records, and Authority that have been cited by them for Seisures, do plainly shew that Seisures and Forfeitures are very different in their Natures. That the Corporations all continued notwithstanding the Seisures: And the Seisure was only the Kings putting in Mayors and Officers to act in them instead of the others Elected or Constituted by the Corporation, and they remain Corporations by Prescription to this day, and never were forfeited, dissolved, or determined by such Seisures.
If the General Authorities in Books that the Misusing or Abusing a Franchise be truly applicable to Franchises (that are Estates and Interests grantable or conveyable from man to man) and never were intended of such a thing as is rather a Capacity or Being, than a Franchise.
If there be no Case, or Precedent, or Opinion to be found for it. If of the contrary, the particular Cases cited prove, that where the Corporations have by Miscarriages forfeited particular Franchises, they do not forfeit their Corporations. If there be scarce any Corporation in England, that have not at some time or other done something they should not, or omitted to do something they should, and thereby forfeited their Corporation, and consequently all are Vsurpers, and their Corporate Acts since done all void.
If the Corporation here hath done nothing, but that the Mayor, Aldermen, and Common Council, are only Delegates, Deputies, or Ministers of the Corporation for particular purposes.
If Servants, Deputies, or Delegates, doe that which they have no Authority to doe, they must answer for it in their own Persons; but their Masters, or those that deputed or delegated them for another purpose, they are innocent; they shall not suffer by it, though no Acts of Parliament had been in the Case.
If the Acts of Parliament against Seising the Liberties of the City, for, or by reason of any miscarriage of their Officers or Ministers, extend to these Acts of the Mayor, Aldermen, and Common Council.
If so be that these Acts were the Acts of the Corporation; Yet with Submission, if they have shewn a good and legal Right by their Custom and Title, to make By-Laws for regulating and settling the Markets and Tolls, and that which they have done be as pleaded reasonable, and that there was reasonable Ground at that time for their Petition which they have set forth.
If all these particulars that I have now summ'd up be against me, then Iudgment must be against me; though I know not what that Iudgment can be.
But if any one of these particulars, thus repeated, be for me, and against Mr. Attorney; then Mr. Attorney can have no Iudgment against the City; But Iudgment must be for them. Which I humbly pray.
The next Term, viz. Trin. 35 C. 2. Ch. Iust. Saunders dying the day of the Iudgment given, or the next day after, Mr. Iust. Jones, Iust. Raymond, and Iust. Withens, being in Court, Iust. Jones pronounced the Iudgment of the Court, and Iust. Raymond, and Iust. Withens affirmed, that Ch. Iust. Saunders was of the same Opinion with them, and that they all agreed,
1. That a Corporation aggregate might be seised.
That the Stat. 28 E. 3. c. 10. is express, that the Franchises and Liberties of the City, upon such Defaults, shall be taken into the King's hands.
And that Bodies Politick may offend and be pardoned, appears by the general Article of Pardon, 12 C. 2. whereby Corporations are pardoned all Crimes and Offences.
And the Act for regulating Corporations, 13 C. 2. which provides that no Corporation shall be avoided for any thing by them mis-done or omitted to be done, shews also that their Charters may be avoided for things by them mis-done, or omitted to be done.
2. That exacting and taking Money by the pretended By-Law, was Extortion, and a Forfeiture of the Franchise of being a Corporation.
3. That the Petition was scandalous and libellous, and the making and publishing it a Forfeiture.
4. That the Act of the Common Council was the Act of the Corporation.
5. That the Matter set forth in the Record did not excuse or avoid those Forfeitures set forth in the Replication.
6. That the Information was well founded. And
Gave Iudgment that the Franchise should be seised into the King's hands, but the Entry thereof respited till the King's Pleasure was known in it. Iust. Raymond and Iust. Withens declare, that they were of the same Opinions in omnibus.
And accordingly after Entry made by Mr. Attorney,
That as to the Issue joined to be tried by the Countrey.
As to the claiming to have and constitute Sheriffs.
As to the having the Mayor and Aldermen to be Iustices of the Peace, and to hold Sessions, quod ipse pro Domino Rege ulterius non vult prosequi.
Iudgment is entred. Ideo consideratum est quod prefat' Major & Communitas ac Cives Civitat' Lond' as to the Issue aforesaid, betwixt our Lord the King and them joined, and as to the Liberties and Franchises aforesaid by them claimed, to have and elect Sheriffs, and to have their Mayor and Aldermen to be Iustices of the Peace, and hold Sessions,
Eant-inde sine die salvo jure Dom. Regis, si al', &c.
Et quoad dictas separales materias in lege unde tam pred' Att' Gen' quam pred' Major & Communitas & Cives Civitat' pred' posuerunt se in Judicium Curiae, the Court advise till Trinity Term, and then pro eo quod videtur Curiae hic quod prefat' Major & [Page 120] Communitas ac Cives Civitat' pred' forisfecerunt Domino Regi nunc Libertat' Privileg' & Franches. pred' ob causas in Replicacon' prefat' Attorn' Gen' superius specificat' quod Placita prefat' Major' & Communitat' ac Civium Civitat' pred' superius rejungendo & repellando in ea parte placitat' materia (que) in iisd' content' minus sufficien' & invalid' in lege existunt ad precludend' dict' Dom' Reg' a Forisfactura pred' aut ad Major' & Communitat' ac Cives Civitat' pred' ad clamand' Libertat' Privileg' & Franches. pred' sibi allocand' & adjudicand' manutenend' matura (que) deliberacione superinde prius habit'.
Considerat' est, qd' Libertat' Privileg' & Franches. pred' sore de seipsis unum Corpus corporat' & Politic' in re facto & nomine per nomen Majoris Communitatis & Civium Civitat' Lond' ac per idem nomen placitare & implacitari, respondere & responderi per eosd' Majorem & Communitatem, ac Cives Civitat' London pred' superius clamat' capiantur & seisiantur in manus Domini Regis & quod prefat' Major & Communitas ac Cives Civitat' Lond' pred' capiantur ad satisfaciend' dict' Dom' Reg' de Fine suo pro Usurpatione Libertat' Privileg' & Franches. predict'.
Postscript.
THE Question concerning the Surrender of Corporations or Bodies Politick, not being directly in the Case, but in the Arguments on both sides insisted on, it may not be unnecessary to state that Point, and collect what hath been in the Debates or Arguments alleadged on either side, that the easier View and Iudgment may be made of it.
By Surrender in this Question is by both sides meant and intended, some Deed or Instrument in writing, whereby a Body Corporate or Politick can surrender and dissolve it self.
It is agreed that a Body Politick may be dissolved, either by the Death of the Persons incorporate, or their Refuser to act, nominate, or elect Officers or Ministers, so as there remain not sufficient, authorized or enabled by their Charter or Constitution, to preserve their Being: This is admitted to be a Cesser, or Dissolution of the Corporation, and such a sort of yielding up, or Surrender, is admitted possible.
But whether by any Deed or Instrument in Writing it can be done, that is the Question intended.
For the Surrender, It hath been alleadged,
1. That the Being of a Body Politick is a Liberty, Privilege, and Franchise, that had its Commencement by the King's Charter, or by Prescription, which supposes a Charter; and if it have its beginning and Creation by Charter, which is the Kings Deed that grants it, by Deed again it may be regranted and surrendered.
And 'tis a Maxim in Law, ‘Unumquodque dissolvi potest eod' modo quo ligatur.’
And instances in Fairs, Markets, Leets, and such like Franchises, granted by Charter, which, say they, may be surrendered by Deed, or Regrant.
2. That it is necessary that it should be dissolvable by Surrender, perhaps a Town may come to decay, and not be able to defray the charge that the Support and Maintainance of the Corporation may require; for every one sees that Ornaments and Officers must be, and these cannot be bought, or maintained, without Estates, and poor men are not able, without ruine to their Families, to bear the Magistracies and Offices; [Page 122] And therefore necessary there should be a Power in them to surrender.
3. That the Books and Cases in Law do prove, That a Corporation, or Body Politick, may surrender itself, and thereby be dissolved.
Dy. 273. There the Case is thus stated:
The Deanry of the Cathedral Church of Wells was dissolved by the Surrender of Fitz-Williams, tempore H. 8. And the Prebend of Currey, in the same Church, was also surrendered by Goodman, Prebendary there, 1 E. 6. And in this Year the Dissolution of the Deanry was confirmed, and the Deanry extinct by Act of Parliament, and a new Dean erected and created, to which new Deanry the Lands and Possessions of the old were annext, amongst other Possessions, and the Nomination of the new Dean and Successors, given by that Act to the King, and that he should have the same Power in Choro & Capitulo, as the old Dean had, saving to all Strangers, other than the Bishop of Bath and Wells, the old Dean, and the old Prebendary, and their Successors.
In this case 'tis admitted, and taken for granted, that the Deanry, and also the Prebend were surrendered.
Dy. 282. There the Archbishop of Dublin had two Chapters, viz. the Dean and Chapter of St. Patrick, and the Dean and Chapter of Christ-Church, and both these used to confirm the Bishops Leases. The Dean and Chapter of St. Patrick, by Deed under their common Seal, gave and surrendered all their Church, Houses, Lands, and Possessions, to the King, without license or consent of their Bishop, being their Ordinary, and Patron of the most part of the Prebends.
After this Surrender their Church was used as the Common Hall, for the four Courts in the Term there; and a Lease is made by the Archbishop, confirmed by the Dean and Chapter of Christ-Church only, and whether the Successor of the Archbishop were bound by this Lease, was the Question.
The Iudges in Ireland were divided in Opinion, and thereupon the Case sent over for the Opinion of the Iudges here, and the Opinions and Resolutions of five Iustices, viz. Catlyn, Dyer, Saunders, Welsh, and Carus, certified to the Lord Deputy of Ireland, under their Hands, were, quod non fuit aliud Capitulum in esse tempore confirmationis Dimission' pred' nisi Christ-Church tantum, quia Corporatio & Capitulum Sancti Patrick fuit per donum & sursum reddition' Decani & Capituli pred' legitime dissolutum absque consensu Archiepiscopi.
Jones 168. The Opinion of Iustice Jones there, That a Corporation may be dissolved by an Act proper, viz. by Resignation.
On the other side, it hath been answered,
1. Admitting it to be true, that to be a Body Politick, is a Liberty, Privilege, and Franchise, created by Charter, which is the King's Deed.
Yet it doth not follow that it may be surrendered by Deed.
For the Charters that incorporate the Citizens, or Inhabitants, of such a City, Town, or Place, and make them a Body capable of taking and having Lands, Goods, or Chattels, to sue and to be sued, and to have a Common Seal, and to act according to the Powers, Ends, and Purposes in their Charters contained, only give them a capacity for those Ends.
The Liberty, Privilege, and Franchise that they have goes no farther.
They cannot transfer this Privilege, or Franchise, to any other Persons.
These are only personal Franchises or Capacities, fixed in the Persons in whom they are granted.
Like to Patents of Denization granted to Aliens, whereby a capacity is granted to have, hold, and act, as a natural born Subject.
Grants of Enfranchising a Villain.
These are Grants that cannot be surrendered.
These are Franchises and Capacities like this.
These are Exceptions to the General Rule, ‘Unumquodque dissolvitur eodem modo, &c.’
So also of Fairs, Markets, Courts, &c. They are created by Charter, they may be granted over, or granted to the King; but if they be regranted to the King, they are not extinct, but remain in the King.
Abbot of Strata Marcell's Case, Rep. 9. 25. b shews the difference thus:
When the King grants Franchises that were, in the Crown before the Grant, as Bona Felonium, Deodands, Wreck, &c. and these come again to the Crown, they are merged in the Crown, and the King is seised of them jure Coronae.
But when a Privilege, Liberty, Franchise or Iurisdiction, was at first erected or ordained by the King, there, by the coming of it again to the Crown, they are not extinct, and instanceth in Fairs, Markets, Hundreds, Léets, & similia.
They are not dissolv'd or gone, for thereby Subjects would be prejudiced: For if the Court should be so granted, and thereby dissolved, the Subjects Iudgments and Suits in those Courts would all be lost.
These are other Exceptions to that general Rule, ‘Unumquod (que) &c.’
2. That the Reason given for the Surrenders of Corporations from the poverty that may happen for the conveniency of some Corporation is answerable; for that doth not very frequently happen: But when it doth happen, if they are weary of it, they [Page 124] may let it alone, and not act or choose Officers, it will cease of it self, néed not be at the charge or trouble of a Surrender.
But on the other side, the Inconveniences are very great, and are some of them before specified.
The Establishment of the Church is all in Corporations, Bishops, Deans, Chapters, Prebends, Parsons, Vicars; if these be surrenderable, as by the Cases cited, without consent of Bishops; (a Prebend is, as to his being, but as a Parson, or a Vicar.) The Vniversities, Colleges, Hospitals, all the Cities, considerable Towns, Trades, and Mysteries, are Corporations; if these be surrenderable, it affects our old Government.
3. As for the Books and Authorities. Dy. 273. the Dissolution of the Corporation thereby surrendred, is only mention'd in putting the Case, it is not debated, nor was it material in the Case: For the Act of Parliament there settled the new Dean and Chapter, and the Prebendary, and the matter of the Case ariseth upon the Deprivation of Dean Goodman, and the appeal and reversal of that Sentence, there is not as much as any Opinion in the Case concerning the Dissolution or Surrender, whether good or bad.
But what may reasonably be inferr'd from that Case is, That the Surrender and Dissolution thereby was not good in Law; for if it had, what needed the having an Act of Parliament to secure against the old Dean and Prebendary; which appears in the Case was had. And,
Co. Rep. 3. 75. b. in the Case of the Dean and Chapter of Norwich, This Case of Dyer is cited, and there expresly said, that that Surrender was not thought good, till confirm'd by Act of Parliament.
And as for the other Case, Dyer 282. of the Surrender of the Dean and Chapter of St. Patrick.
The Opinion of the Iudges there given, is by all the Iudges, 3 Car. 1. in the Case of Heyward and Fulcher, in Jones, 168. denied to be Law, and said to be a private resolution.
So that these two Cases in Dyer, having béen by those later Authorities denied, remain no Authorities. And as for the other Authority, viz. The opinion of Iustice Jones 168. that a Corporation may be dissolv'd by a proper Act, viz. by Resignation.
That is true; taken in the sense he speaks it, it is spoken of a Dean and Chapter resigning to the Ordinary, viz. The Dean resigning his place of Dean, and the Prebendaries of the Chapter, resigning their Prebends to the Ordinary; whereby their Churches and Prebends became void, and to be supplied by the respective Patron, collating or presenting, as in Cases of Resignation, by any Parson or Vicar to his Ordinary.
But this is nothing of a Surrender of the Body Politick to the King, and thereby dissolving the Corporation, and destroying all supply, by new Presentments or Collations.
And this appears by the very words of Iustice Jones there; for when he saith they may be dissolv'd by a proper Act, viz. by Resignation; the next words are, or by death of the whole Corporation, and the King being Patron, 'tis in his Election whether he will collate de novo, or not, and till he collates the Corporation is in suspense; but if the Bishop be Patron, then the Bishop upon the Resignation, hath power to collate, and thereby to continue the Corporation: So that it is very plain, that the Resignation he speaks of, is not meant for any Surrender to the King, or any thing that determines the Corporation, except the Patron will not collate, and thereby suffer the Corporation to cease.
But of the contrary, that a Corporation cannot be dissolv'd by any Surrender.
The Suppression and Dissolution of the Abbies, Priories, and Monasteries, by H. 8. was no Dissolution of their Bodies Politick.
Br. Extinguishment, 75.
Br. Corporation, 78.
Davies, Rep. 1.
Moore's Rep. 282. Though their Houses and all their Possessions were gone, and the Persons either discharged of their Orders, or sent into other Houses; yet resolved, that the Corporations remain'd. And it can scarce be imagin'd, but in some of those Cases it would have been practised, or at least something said about surrendring their Body Politick, if it had been then thought surrenderable.
But the Cases of the Dean and Chapter of Norwich, Rep. 3. 41 Eliz. before cited.
And the Case of Heyward and Fulcher before mention'd in 3 Car. 1.
Jones, 168.
Palm. Rep. 500, 501.
Anders. 2. 120.
Have been cited as Iudgments against Surrenders by all the Iudges of the King's Bench.
The Case was, That the Dean and Chapter of Norwich, 3 Junii 1 E. 6. surrendred to the King their Cathedral Church, & all their Mannors, Lands, Tenements, Hereditaments, Franchises and Liberties, Spiritual and Temporal, by whatsoever names they are known, or which they have or ought to have in the Right of their Church.
And by the Case 41 Eliz. Co. Rep. 3. 74.
And the Opinion of all the Iudges of the King's Bench.
3 Car. 1. adjudged that this was no Surrender of the Corporation.
Obj. That the words of the Surrender do not shew any intent to surrender the Corporation, but only the Possessions.
Resp. The being of a Corporation, is a Franchise or Liberty.
And there is an express Surrender of all Franchises and Liberties Spiritual and Temporal, by what name soever known, which they have in the right of their Church.
And this was a Spiritual Franchise, which they had in right of their Church.
Next, This Surrender was made with intent to dissolve the Corporation, and to have a new one erected; this appears by the new Charter of Erection, made in November following; which recites the Surrender made to that intent.
It is not any where in the many Arguments of that Case, alleadged that there wanted words in the Surrender to doe it, which would have been, if that had been the Ground of their Iudgment.
In the Case cited out of Dyer 282. there the words of the Surrender were, that they surrendered their Church, Houses, Lands, and Possessions, which are not half so large and ample words as in this Surrender are contain'd; and the other side cite that as an Authority to prove a Corporation surrender'd, and admit the words there sufficient, and deny them to be sufficient here, though much more large, express, and general.
The arguing there in Palmer 501. that it is against the Nature and Constitution of Corporations, that by the words put in their Charters, by their very Constitution are to have perpetual Succession, perpetuis temporibus duratur, and which by their Oaths they are sworn to preserve, that they should be felo de se.
And the express words of the Iudges reported in these Books, shew their Opinion, that the Corporation could not be surrendred.
Jones, 168. Dodderidge Iustice, there saith, that the Dean and Chapter cannot surrender their Corporation.
Palm. 501. Whitlock Inst. there saith, For that that the Dean and Chapter are Counsel to the Bishop instituted to that purpose, they cannot dissolve themselves, for the Politick Corporation is the Soul to the Body, that cannot be granted or sever'd; though the King can create a Corporation, he cannot dissolve it. And Jones Inst. there 502. saith, That the Dean and Chapter were Counsel to the Bishop, and cannot destroy themselves; if they could, great Inconvenience thereby will ensue to the Church.