king John, by his letters patents under the quam per nomen civium London.' And that great seal of England, in court produced, dated 5th 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.

That they are, and time out of mind were, a body politic and corporate, as well by the name of Mayor and Commonalty, and Citizens, enough, if I had gone about to have gathered gar. It is the part therefore of indifferent times all the particular cases, with their circum- to take things right, and defer nothing to the stances, which would have made a just volume, prejudices, that faction, to justify themselves, to be wished for rather than expected. But would cast upon their betters, specially in the the author, whom I am obliged to wait upon, way here before us, by setting up a tool of a hath thought fit to touch only the case of Lon-writer to metamorphose the libels of the time don upon the Quo Warranto prosecuted against into what he calls Complete History. that great city; and I shall join issue with him "As for the forms of the proceeding against there, and consent that the justice of the pro- the city of London, and the matters of law ceeding, and the honesty of his account, shall argued pro and con, with the judges final senbe determined according to the state of that. tence that the corporation of the city be seized This great city was among the earliest that into the king's hands; the whole is at large in were questioned at law for forfeiture; and I print in a folio volume, being a famous lawshall venture to say with more of reason than case which every one may study that is so dis any other in England. For what, in the name posed. Therefore I shall not make any formal of justice, had the government to do when report of it, but touch the principal matters in an Ignoramus was mounted in Cathedra, and there historical way only. And first, as to the law, was a declared stop put to all state criminal upon which the process was grounded; which law, to say nothing of the ordinary and civil was that all franchises whatever, derived from course, and how factiously partial it was carried the crown, are forfeited by abuser; than which on in London and Middlesex? It was indeed nothing is more trite in the law books, but a dangerous case to the public, and, in other more especially such as concern the conservatimes, had probably introduced precedents of tion of the peace and justice. Then, that the authority and prerogative that would have corporation was a franchise derived from the lasted longer than that law-suit did. Il ac- crown, and, for every unlawful act done by the tions give colour to mischievous precedents; body, was seisable, for the abuser, as forfeited. and there are scurvy maxims, as omnia dat So was the law taken to be: As for the fact, it • qui justa negat; quod remedio destituitur ipsa appeared the corporation had done diverse unre valet,' and the like. Some governments lawful facts; and, about the time, there was a have resorted to force, and justified it upon the paper handed to and fro, that contained ten or bare pretence of less than was true here. The twelve mis-feasances, which were presumed city of London and county of Middlesex, rewould amount to a forfeiture: But not all with specting the safety of the government, as it equal clearness: for some admitted of dispute. should be guarded by law, is of the last conse- As, for instance, this, that they permitted and quence to the crown; because the govern- did not suppress the outrageous tumults in the ment resides there, and all its enemies gather city. For the corporation, being entrusted by about it. It is an unparalleled error of politics their magistrates to preserve peace in the city, in the people, when they think to deprive their ought not to suffer tumults, but to suppress and government of the power of punishing capital punish them; which they did not so much as offences by law, and no less when such course endeavour to do. But then the counsel for the is taken to discourage it by popular miscon- city might have stood upon it, that that structions and calumnies, as it was scandalous- was the fault of the magistrates, and not of the ly done in this instance, and, by the author, body, and that they, in their persons, ought to reiterated; I hope there will never be known be punished for their fault, and not the corpo the like folly. I desire to ask the most dis-rate-body. To prevent all colour of chicane satisfied person, when wrong is done, what is upon such accounts, care was taken to select the course, going to law, compulsion, or fight-two facts, to be assigned for forfeiture, which ing? And, presuming the answer, I ask were unquestionably unlawful, and indubitably farther, whether, after the sovereign and his the proper acts of the corporation. authority were so outrageously insulted, was it not an instance of a just and gracious government to decline the use of power upon the reason of necessity, and resort to the law before judges sworn, and to pursue it in all the forms of process and special pleading? Government is in a very hard case if, having both right and power, it may not make use of either. It hath a ridiculous phiz, like the fable of the old man, his ass, and a boy, before the inconsistible vul

"The first of these was a petition of the city, framed and ordered by the common council, to the king for sitting of the parliament. In which they accuse the king directly of misgovernment, and stopping the public justice of the nation, with other abominable reflecting ex pressions; all which in full form the common council ordered to be printed; and it was posted up in the carfours and public places of resort in the city; which was a publication with a

1049] STATE TRIALS, 34 CHARLES II. 1682.-and the City of London. [1050

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 Aldermen being Justices of the Peace, and holding Sessions, they plead,

That the city is, and time out of mind was, an ancient city and county, and the citizens a body politic.

That king Charles the First, by his letters patents, dated 18th October, 14 Car. 1, 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, et co warranto they claim to be justices, and hold sessions.

Respons.

To this Plea the Attorney General_replies. And as to the Mayor and Commonalty, and Citizens of London, being a Body Politic and Corporate,

chiefly to explain so much as may dissolve the author's sophistical libel. And that will require some material passages to be more particularly related.

witness. The other forfeiture was by like And, accordingly, time was given to the counorder raising money upon the king's subjects sel, term after term, and solemn prolix argucoming to the public markets, at rates as they ments heard twice; and then after a consiwere pleased to tax; which markets are free derable time past, the court gave judgment for all people, and may not be turned into a for the king; that the franchises should be fund of revenue at the pleasure of the corpora- seized into the king's hands. All which mattion. These forfeitures were no peccadillo ters are punctually, as to times and circumtrifles; but small or great alters not the case, stances, published in the print; therefore I for it is not value, but legality makes the ques-refer to them, being not in my scope, which is tion: For the least unlawful act is a forfeiture as truly as the greatest. It was enough if those facts, that were asssigned, would not admit of any colourable dispute. The cause depended a long time upon the forms of special pleading, in order to come to proper issues, whether to the court by demurrer or to the county for trial; and of all the several pleas, bars, rejoinders, rebutters, surrebutters, &c. the public were made judges by the favour of the press that sent them forth in the very words, and an English translation annexed; which jargon was conned over by the common people with wonderful seriousness. There was to be seen the whole fabric of Oates's plot, and the cases of the criminals, particularly the five lords in the Tower under impeachment, ready for trial when the parliament should meet, which was pleaded in justification of the libellous petition: "What could resist that powerful charm? The learned counsel could plead in form a justification of a scandal upon the king posted in print, that knew by law no justification can be pleaded even in a case of Scandalum Magnatum against a peer. And when the law says expressly that the king can do no wrong, how comes it to be lawful or tolerable to accuse him for having done it? But where faction has to do, every thing must give way; and all, that is for them, is regular and just, and nothing else.

"In fine the counsel for the city did not think fit to deny the facts assigned for the forfeiture, whereby issue might have been joined, and a trial had to prove them. But, in the course of the especial pleading, the facts were confessed by insisting to the court that the same did not amount to a forfeiture; and in fine, the issue was joined to the court by way of demurrer, which admitting the facts to be true, forfeiture, or not, was the only question. This much shortened the cause; for nothing was to be done by the court but to hear arguments, and, after consideration, to give judgment.

e;

"And first, as to the defence, I did not find that the city counsel insisted on any thing materially, that went to the whole case, but only this, viz. That a corporation was immortal, and dissolvable only by the act of God, as by the natural deaths of all the members. But, as to the particular facts, they said the common council were but the city's deputies, and a principal is not punishable for crimes of his misdemeanany deputy; so they might commit nors, and the city be not the least affected by to their markets, they had a it. And, as custom to make by-laws, and the common council taxed the market folks by way of bylaw. This was the marrow of their defence but it is spread very thin, and, in the arguments, larded with a world of quotations, in which the other side were not wanting. For the counsel for the king at large insisted that a corporation is a franchise, and, in all the books and Quo Warranto cases, passeth under that title; and whatever it is, it is capable of no amendment but seizure. It must be lawless or seizable; and, for the notion of immortality, it is a chimera of invention, absolutely a stranger to the law and the law-books. That the common council was the representative body of the city Corporaliter Congregati, and the only means by which the city, as a corporation, can act extraordinarily to bind themselves and all the members. And, as for by-laws, grant all they say, they can extend no farther than to conclude their own members, but not to tax the people of England for coming amongst them on their lawful occasions. But as it happens in all great cases, where reason and justice is wanted, a face of assurance is the Succedaneum; so here, there could be no law so plain as to convince a party that the city was in the wrong in any thing, because they were

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 politic

and corporate, and by reason thereof to have power and authority to convocate and assem ble, and make laws and ordinances, not cas trary to the laws of the kingdom, for the better government of the city and citizens, and for resolved, right or wrong, it should not be therefore the wisest citizens were passive, and so; and if they had credit with the vul- let matters drive; they themselves going gar, or members sufficient to sustain a cla- whit faster than the common herd. But, after mour, it was the same thing, in their judgment pronounced, the common counci account, as if they were in the right. And thought fit to agree that an humble petition they by their multifarious inventing, and should be presented to the king. It was conlying, communicated, after the manner of ceived in general terms, begging his majesty's their policy, to all people, and in all places pardon and favour to the distressed city. The where they had any access by party, they went lord-mayor, with the aldermen, waited upon a great way to possess all people that this pro- the king with the petition, and humbly presentceeding against London was a tyrannous pro-ed it to him at Windsor. And thereupon the ject of the court: And if the occasion, or rather, Lord Keeper North signified his majesty's necessity of it, had not been most evident be- | pleasure to them in a solemn speech, which fore the eyes of all men, they had made very states the condition of the whole affair, wil ill use of it as to consequences. But there was the reasons, better than I can pretend to do, then enough of the church and loyal party in and as shortly as it can well be expressed; full credit at that time, especially citizens, to therefore, although it is in print more than stem that orage of faction. But yet the im- once, I shall subjoin it verbatim as it was spe pressions were not slight; for nothing is so de- June 18, 1633. And this I am more inclined ceitful as popular opinions of the vulgar in to do, because our author and I are to have popular matters; and there is nothing so fond some sharp words about it. in them, which, more or less, is not found in some persons of quality and literature emi-command, to tell you, that he hath considered nent in their time, of whom one would expect better.

"My Lord Mayor; I am, by the king's

the humble petition of the city of London, where so many of the present magistrates, and "It is not to be imagined that the king in- other eminent citizens, are of undoubted tended the least harm to the city itself by this loyalty and affection to his service, that, for judgment; and most of the citizens of credit their sakes, his majesty will shew the city all were thereof satisfied, and ready to have trust- 'the favour they can reasonably desire.-It was ed the king; and they were in the right, for very long before his majesty took a resolution the king deceived them in nothing, as will to question their charter; it was not the sediapear. In the first place, care was had of the tious discourses in coffee-houses, the treasoncity that the judgment, pronounced upon the ⚫able pamphlets and libels daily published and Quo Warranto, should not be entered upon the dispersed thence into all parts of the kingdom, record of the plea, till his majesty's pleasure the outrageous tumults in the streets, nor the should be farther known. This was for cau- 'affronts of his courts of justice could make tion, lest some customs or duties, that depend-him do it. His majesty had patience till dised on the corporate capacity, might fall and not revive upon a regrant. And it also gave the city time to advise among themselves about renewing their charter, as might be done with confirmation of the old, and grant of some new privileges. But, as to the governing part, and the law, the king required some regulations should be made, for obviating the recrudescence, of those Ignoramus abuses, for the future, that had been so scandalous before. And people were generally satisfied it had been their wisest course to have done it out of hand, lest somewhat might have happened in the interim to their prejudice which they might not dream of. But matters of this nature, in their proper times, are so nice that they do not admit of a wise interposition of particular persons of the body; for if it be the interest of a party to oppose all reasonable settlement, nothing will be so liable to misconstruction, and to be defamed with ill language, as the most prudent propositions, tending that way, will be. It is no new nor strange thing, in great cities, for

on to be made unpopular and infamous;

orders were grown to that height, that nothing less seemed to be designed than a ruin to the government both in church and state. For the factious party were not content with the practice of these insolences, but endeavoured to have them publicly countenanced by the magistrates, and, for that end, in all elections, they stickled to choose the most disaffected into offices, and carried themselves with that heat and violence, that it was a terror to all sober and discreet citizens; and the city was so unhappily divided into parties, that there was no likelihood it could return into order, s long as the factious retained any hopes of procuring the elections of magistrates of their own party, for their impunity.-It was high time to put a stop to this growing evil; this made it necessary for his majesty to enquire into their abuse of franchises, that it might be in his power to make a regulation sufficient to restore the city to its former good government. It was not for the punishment, but merely for the good of the city that the king took this 'course, and now he hath obtained judgment

เ

preserving the king's 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 king

1

in a Quo Warranto, it is not his intention to prejudice them either in their properties or 'customs. Nay, lest the entry of the judg'ment upon record might have fatal conse'quence to them, his majesty was so tender of them, that he caused Mr. Attorney to forbear the same at present, that the city might have time to consider their condition.

666

dom reposed, assumed an unlawful and unjust authority to levy money upon the king's subjects, to their own proper use, by colour of laws and ordinances by them de facto ordained

and if the court shall disapprove such second 'choice, they may appoint in their room.

"7. The justices of the peace to be by the 'king's commission, which his majesty will 'grant according to the usual method, unless upon extraordinary occasions, when his ma'jesty shall think it necessary for his service. "These matters are to be settled in such manner, as shall be approved by his majesty's

learned in the law.

"My Lord Mayor; These regulations being 'made, his majesty will not only pardon the prosecution, but confirm the Charter in such 'manner as may be consistent with them.

666

My lord; I must needs say the city hath not been so well advised to defer their applica-attorney and solicitor general and counsel tion to his majesty so long, even till the court hath pronounced judgment; it had been done with a much better grace if it had been more early. His majesty's affection for the city is too great to reject their suit for that cause. But, for that reason, you will have less time, 'to deliberate upon the particulars the king doth require of you: And indeed there wil be little need of deliberation; for his majesty hath resolved to make the alterations as few and as easy, as may be consistent with the good government of the city, and peace of 'the kingdom.

"His majesty requires your submission to these regulations:

"1. That no lord mayor, sheriff, recorder, 'common serjeant, town-clerk, or coroner of the city of London, or steward of the borough of Southwark, shall be capable of, or be ad'mitted to the exercise of their respective offices, before his majesty shall have approved them under his sign manual.

"2. That if his majesty shall disapprove the 'choice of any person to be lord mayor, and signify the same, under his sign manual to the lord mayor, or in default of a lord mayor, 'to the recorder or senior alderman, the city *shall within one week proceed to a new choice; and if his majesty shall in like manner disapprove the second choice, his majesty may, if he so please, nominate a person to be lord mayor for the ensuing year.

"3. If his majesty shall in like manner disapprove the persons chosen to be sheriffs, or either of them, his majesty may appoint persons to be sheriffs for the ensuing year by * commission if he so please.

"4. Nevertheless the election of these offimay be according to the ancient usages of the city with these restrictions.

cers

"5. The lord mayor and court of aldermen may, with leave of his majesty, displace any *alderman, recorder, common serjeant, townclerk, coroner of the said city, and steward of the said borough.

6. Upon any election of any alderman, if any of the persons, that shall be presented to the court of aldermen by the ward, shall be adjudged unfit: upon such declaration by the said court, the ward shall proceed to the choice of other persons in the room of such, "or so many of them as are so disapproved,

The city ought to look upon this as a great 'condescension on his majesty's part, it being 'but in the nature of a reservation of a small part of what is already in his power by the judgment, and of those things which conduce as much to their own good and quiet as to his 'service. If the city should look upon it with 'another eye, and neglect a speedy compliance, yet his majesty hath done his part, and de'monstrated his affection to the city by giving 'them this opportunity. And if there shall be any heavy consequence of this judgment, which it will behove you well to consider, the 'fault will lie at their door in whose power it now is to bring this matter to an happy con'clusion.

666 My Lord Mayor; The term draws near an end, and Midsummer-day is at hand, when some of the officers use to be chosen, whereof his majesty will reserve the approbation; therefore it is his majesty's pleasure that you return to the city and consult the common 'council, that he may speedily know your re'solution hereupon, and accordingly give his directions. That you may see the king is in earnest, and the matter is not capable of delay, I am commanded to let you know that he hath given order to his attorney ge'neral to enter up judgment on Saturday next, * unless you prevent it by your compliance in all these particulars.'

"The whole speech thus lying open before us, I shall demonstrate that the author hath most disingenuously and shamefully, not only left out but perverted to libel his majesty's most gracious regards for the good and welfare of the city, by observing some matters; and first his note upon what was declared at pronouncing the judgment, that by the king's special order, the judgment was not to be entered till farther order. Now, says he, this was generally looked upon to make the citizens resign their own liberties, instead of being condemned to a deprivation of them. Here is poison ga thered from a flower, that is construing a gracious tenderness, which I can affirm knowingly to be truly and really such, to be a tres

6

or established; and in prosecution and execu- made, constituted, and published a certain law, tion of such illegal and unjust power and au- by them de facto enacted, for the levying of thority by them usurped, 17th of September, several sums of money of all the king's sub 26 Car. 2, in their common council assembled, jects, coming to the public markets within the cherous wile; and without the least symptom of very next, that is N° 4, shews that the ele evidence to prove what he says. It is both tions were left to the common usages of the foolish and false: For the condemnation was city. And the rest shews the disposition perfect by the judgment pronounced; but touching the lord mayor and aldermen's authe consequences of the judgment, recorded, thority in the placing of officers of an inferier concerned only the city, and not the king: rank. In short, the king reserved only an ap Nay, the king, and also the people in general, probation of those officers that are named No 1, might have gained by either a devolution or which he might, if he saw cause, reject, if the extinction of some payments, whereof the city, or a prevailing faction there, should, right discontinued, but an hour, were irrecove- formerly they had done, choose men who were rably lost to the city. And the care of those the declared enemies of his person, authority and that it might be in his majesty's power en- and government. And if it be said, would not tirely to redintegrate the city, whose diminu- this be to impose officers upon the city arbition in any thing he did not desire, they be- trarily? I answer, would it not be otherwise having themselves dutifully, was the true rea- worse, for a faction in the city to impose offson of the suspension. And this piece of ma- cers upon the crown arbitrarily? But suppose lice is screened under it was looked upon,' that it to be the city itself, and not only, as here t is by such as saw with libellous spectacles, was, a faction; if it must be one or other, 1 that tincted all objects according to their colour. desire to know whose trust is greatest? The "Then he has left out all the introductory king's or their's? And on which side the im part of the speech, which shews the necessity, posing ought to fall? On the governors or the integrity, and good will of the king in his pro- cities, that, like the rest of England (whose ceeding: But one must excuse him, for that county sheriffs are nominated by the king) are was none of his business. But he finds anoto be governed? Whatever trust is reposed i ther reason for the suspension. Thus he bro-them, is for the sake of government, which is kenly states it in words of the speech. That' the trust of the crown so far delegated to though the king had obtained judgment,' them; and then, if one must have power it was not his intent to prejudice them in their impose, the principle or delegate, which ought properties or customs.' The malicious tendency in common reason and decency to be? And it of this sentence is not obvious; but it consists is to be noted that all the offices, subject to in this, that the king knew the judgment itself this approbation, are those that belong to gowas a prejudice, that is a wrong, to the city in vernment. Other offices, that belong to the their properties and customs. We are, by his city revenues and private economy, as the text, to understand the matter so, although no- chamberlain, sword-bearer, &c. are all left thing can be more alien in sense, than that is, free and untouched; but no notice is by our to the purport of the speech. But the meta- author taken of that part of the speech. And morphosis is dexterously made, by a petit alte- as to imposing, which the factious talkers so ration of the word though' put in the place of much exaggerated, there was nothing but a now.' Which ought to be well attended to; Republican cant in it, that carries all things to for the now,' as it is in the speech, looks for- extremity; such as ages upon ages may not ward, and casts the reference from the judg-produce; whereas the evil to be cured is fre ment upon the consequences: That is, the king is possessed, but is willing to quit all to them upon their compliance, and attends their answer. But though' refers back to the proceedings before the judgment, even to the first process, and rests upon the judgment itself as injurious, &c. if it took place; and so makes the king purge himself, as saying he did not mean them such an injury as the judgment was, or, which is the same thing in his sense as injury, that is prejudice. The speech means that the city was warned not to let such a prejudice run (since the king had his judgment) by preventing the entry; but the author means that the king owned, by his keeper, that, if he did enter judgment, it was a prejudice; which, being in properties and customs, that is rights, must mean wrong and injury, as I said before. "Another case of the author's ingenuity is his carrying the conditions no farther than N° 3, whereas they go on to N° 7; and the

quent, and now flagrant. It is to be consi dered that the crown, for reasons apparent enough, would never be apt to give the city offence; nor would the power of approbation be exercised by a refusal of any whom all the world would not say were necessary to be refused; and the city itself, well knowing of that power, would never be troubled with fac tion so much as to labour elections fit to be rejected. Therefore all those pretences against agreeing with the king, with which the fac tion blinded the eyes of, and dared, the honest citizens from appearing for it, were no better than Republican Fucus. And the author is yet himself, for there are two clauses in the speech, very material as to demonstrating his majesty's candor, which he hath wholly left out, and given no minute account of them or the matter. I do not reiterate them here; but that they may be obvious in the reading, and to shew in the main that the author hath sup