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<DATE>2014-04-07</DATE>
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<NAME>TCP Staff (Michigan)</NAME>
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<ITEM>Proofed and reviewed as part of batch B140221.pdcc.</ITEM>
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<VID>204346</VID>
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<TEXT LANG="eng">
<BODY>
<DIV1 TYPE="case">
<PB REF="1">
<PB N="1" REF="2" MS="y">
<HEAD>THE CASE BETWEEN THE L^D^. MAYOR &amp; COMMONS OF LONDON Concerning the Election of Sheriffs For the Year en&s;uing, clearly Stated.</HEAD>
<HEAD TYPE="sub">And the Sen&s;e of &s;ome Learned Gentlemen of the Gown concerning it, by way of ANSWER to &s;everal Que&s;tions truly and fully repre&s;ented.</HEAD>
<P>THE City of <HI>London</HI> is and time out of mind hath been Incorporate by divers Names, and among&s;t the re&s;t, by the Name of <HI>Mayor, Commonalty,</HI> and <HI>Citizens</HI> of <HI>London.</HI></P>
<P>King <HI>John</HI> by his Charter did Grant <HI>Civ. Lond. vicecom. Lond. &amp; de Midd. cum omnibus rebus, &amp; con&s;uetudinibus que pertinent ad predict. vicecom.</HI> And in another Clau&s;e, Grants <HI>Civit. Lond. quod ip&s;i de &s;eip&s;is faciant Vicecom. quo&s;&abque; voluerint.</HI></P>
<P>As for Summoning the <HI>Folkmote</HI> or <HI>Common-Hall,</HI> it appears that Anciently they were Convened together by the Ringing of a great Bell, after that by the <HI>Mayor</HI> and <HI>Aldermen,</HI> but the certain Days for the <HI>Elections</HI> of the <HI>Mayor, Sheriffs,</HI> and other
<PB N="2" REF="3">principal Officers for the <HI>City,</HI> being &s;etled by &s;everal Acts of <HI>Common-Council,</HI> the <HI>Citizens</HI> met of cour&s;e at the prefixed time. For certain it is, among the many <HI>Precepts</HI> made out by the <HI>Mayors,</HI> and entred in the <HI>Journals</HI> of the <HI>City</HI> in the Reigns of <HI>Hen. 7. Hen.</HI> 8. <HI>Edw.</HI> 6. Q. <HI>M.</HI> and Q. <HI>Eliz.</HI> there is not one <HI>Precept</HI> to be found for Summoning the <HI>Common-Hall</HI> by the <HI>Mayor,</HI> tho' by the Ancient Entries it may &s;eem &s;ome Notice or Remembrance was given as well to the <HI>Mayor</HI> and <HI>Aldermen,</HI> as to the <HI>Commons.</HI> Nay &s;ometimes it was Ordered by the <HI>Com|mon-Council,</HI> That the <HI>Common-Hall</HI> &s;hould A&s;&s;emble upon &s;uch and &s;uch a Day, at &s;uch and &s;uch an Hour, for &s;uch <HI>Elections;</HI> and not only &s;o, but &s;ome of the chief <HI>Aldermen</HI> have Ordered the meeting of a <HI>Common-Hall.</HI></P>
<P>Upon the meeting of the <HI>Common-Hall,</HI> the <HI>Lord Mayor</HI> and <HI>Aldermen</HI> for their conveniency &s;itting in the place where the <HI>Court</HI> of <HI>Hu&s;tings</HI> are u&s;ually kept, the <HI>Recorder</HI> declares to the <HI>Hall</HI> the Cau&s;e of their A&s;&s;embly to be for the choo&s;ing of <HI>Mayor, Sheriffs, Chamberlain, Bridge-Ma&s;ters,</HI> and other Officers, and when he hath &s;o done, his <HI>Lord&s;hip</HI> with the <HI>Aldermen</HI> have u&s;ed to go away and leave the <HI>Hall</HI> to proceed in their <HI>Elections.</HI></P>
<P>That the <HI>Sheriffs</HI> for the time being have con&s;tantly u&s;ed to manage the <HI>Elections</HI> to di&s;tingui&s;h if they can by holding up of the hands of the <HI>Electors</HI> who hath the greater number, but if a Pole be de&s;ired, the <HI>Sheriffs</HI> have con&s;tantly appointed the Tellers and manag'd the Pole, and when fini&s;hed they come to the <HI>Lord Mayor</HI> and <HI>Aldermen,</HI> in a Room apart in the <HI>Guild-Hall</HI> and tell them what hath been done, and upon whom the <HI>Election</HI> hath fallen; and then the <HI>Lord Mayor</HI> and <HI>Aldermen</HI> u&s;ually return upon the place where the <HI>Hu&s;tings</HI> is u&s;ually kept, and declare by the <HI>Recorder</HI> to the <HI>Hall,</HI> who have the <HI>Election,</HI> and thereupon Proclamation is u&s;ually made by the <HI>Common-Cryer</HI> that the A&s;&s;embly depart.</P>
<P>That it hath &s;ometimes but rarely happened, and but of late days, either through &s;hortne&s;s of time or &s;ome other great occa&s;ion, the <HI>Election</HI> or <HI>Pole</HI> could not be fini&s;hed; and then the <HI>Sheriffs</HI> have declared, That the A&s;&s;embly &s;hould depart and the time for the next A&s;&s;embly, and accordingly they have at the appointed time re-a&s;&s;embled, and proceeded and fini&s;hed.</P>
<PB N="3" REF="3" MS="y">
<P>That there is no in&s;tance that ever any <HI>Lord Mayor</HI> hath Ad|journed or Di&s;&s;olved the <HI>Common-Hall</HI> without their A&s;&s;ent be|fore the <HI>Elections</HI> fini&s;hed, but only one in the time of Sir <HI>Samuel Sterling</HI> Lord Mayor, about the Office of <HI>Bridge-Ma&s;ter,</HI> for which Damages was recovered again&s;t him.</P>
<P>That a <HI>Comman-Hall</HI> was Summon'd by the <HI>Lord Mayor,</HI> and met upon <HI>Mid&s;ummer</HI> day la&s;t, that the <HI>Recorder</HI> declared the occa&s;ion of their A&s;&s;embly to choo&s;e the Officers, and then the <HI>Lord Mayor, Aldermen,</HI> and <HI>Recorder</HI> withdrew.</P>
<P>That the <HI>Sheriffs</HI> proceeded to manage the <HI>Election; Cham|berlain, Bridge-Ma&s;ters,</HI> and all the other Officers were Elected, but a <HI>Poll</HI> de&s;ired concerning the <HI>Sheriffs,</HI> thereupon the A&s;&s;em|bly adjourned out of the <HI>Hall</HI> into the Yard called the <HI>Guild-Hall-Yard,</HI> and there proceeded taking the <HI>Poll.</HI></P>
<P>About <HI>Seven</HI> of the Clock that day the <HI>Lord Mayor</HI> comes upon the place where the <HI>Hu&s;tings</HI> Court is u&s;ually kept in the <HI>Hall,</HI> (the A&s;&s;embly being adjourned out of the <HI>Hall</HI> into the <HI>Yard,</HI> and then <HI>Polling</HI> in the <HI>Yard,</HI>) and by the <HI>Common-Cryer</HI> &s;tanding upon that place in the <HI>Hall</HI> by Proclamation declares, That the A&s;&s;embly depart, but to A&s;&s;emble again upon <HI>Tue&s;day</HI> following at <HI>Nine</HI> o'th Clock. There were a great number of People in the <HI>Hall,</HI> when this was declared, and the News of it was carried out to the <HI>Sheriffs</HI> then proceeding in the <HI>Poll</HI> in the <HI>Yard.</HI></P>
<P>The <HI>Sheriffs</HI> did not thereupon de&s;i&s;t, but went on <HI>Polling</HI> till about <HI>Eight</HI> of the Clock, and then the <HI>Sheriffs</HI> declare, That the People &s;hould depart, and A&s;&s;emble again upon <HI>Tue&s;day</HI> following, at <HI>Nine</HI> o'th Clock.</P>
<P>It was accordingly done, and upon <HI>Tue&s;day</HI> the <HI>Hall</HI> A&s;&s;em|bles again, and then the <HI>Lord Mayor</HI> upon the place of the <HI>Hu&s;tings</HI> by the <HI>Cryer</HI> declares, That they &s;hall depart, and A&s;|&s;emble again upon <HI>Wedne&s;day</HI> come &s;even night.</P>
<P>Upon <HI>Wedne&s;day</HI> they A&s;&s;emble again, but the <HI>Lord Mayor</HI> happening to be taken &s;ick and not able to come abroad &s;ome of the <HI>Aldermen</HI> and <HI>Recorder</HI> go to him, and he being on his Bed declares to them his Condition, and mind, which on <HI>Friday</HI> following was written down from his own mouth in the Court of <HI>Aldermen,</HI> (and then delivered to the <HI>Four</HI> Coun&s;el who&s;e Opinions was de&s;ired) in the&s;e Words (viz.) <HI>The Lord Mayor de&s;ired the Recorder to acquaint the Common-Hall that he could
<PB N="4" REF="4">not come him&s;elf, but directed that the Court might be Adjourned to</HI> Friday <HI>at Nine of the Clock.</HI></P>
<P>Thereupon &s;ome of the <HI>Aldermen</HI> and the <HI>Recorder</HI> about <HI>Ten</HI> of the Clock goe upon the place of the <HI>Hu&s;tings,</HI> and the <HI>Re|corder</HI> &s;aith thus:</P>
<P><HI>Gentlemen, I am to Acquaint you with a Me&s;&s;age from my Lord Mayor, That he is fallen very ill, &s;o that he cannot fiir from his Bed, and therefore does de&s;ire that this</HI> Common-Hall <HI>may be Adjourned till</HI> Friday <HI>morning Nine of the Clock.</HI> And then the <HI>Aldermen</HI> and <HI>Recorder</HI> depart, and the voice of the <HI>Hall</HI> being again&s;t an Adjournment, a <HI>Que&s;tion</HI> was demanded to be put to the <HI>Common-Hall,</HI> whether they would Adjourn or not, and that <HI>Que&s;tion</HI> was put to them and carryed in the Negative. And upon a Second <HI>Que&s;tion,</HI> Whether the <HI>Sheriffs</HI> &s;hould at that time proceed upon and fini&s;h the <HI>Poll</HI> or not? It was carryed in the Affirmative. And thereupon the <HI>Sheriffs</HI> proceed, and about Three of the Clock fini&s;h the <HI>Poll.</HI> Afterwards at the in&s;tance of the <HI>Common-Hall</HI> a <HI>Que&s;tion</HI> being put, Whether they &s;hould then declare the <HI>Poll,</HI> and publi&s;h the <HI>Election?</HI> It was carryed in the Affirmative. Whereupon the <HI>Sheriffs</HI> at the in&s;tance of the <HI>Common-Hall</HI> did declare the <HI>Poll,</HI> and pub|li&s;h the <HI>Election</HI> to fall upon Mr. <HI>Thomas Papillion,</HI> and Mr. <HI>John Dubois,</HI> which done the <HI>Common-Hall</HI> di&s;&s;olved: Afterwards the <HI>Sheriffs</HI> acquainted the <HI>Lord Mayor</HI> in the <HI>Court of Aldermen</HI> with what was done.</P>
<P>Upon <HI>Friday</HI> there being a great number of the <HI>Citizens</HI> A&s;&s;embled in the <HI>Hall,</HI> the <HI>Lord Mayor</HI> comes upon the place of the <HI>Hu&s;tings,</HI> and the <HI>Common Cryer</HI> declares that the A&s;&s;em|bly may depart, and give their Attendance again on <HI>Friday</HI> next.</P>
<PB N="5" REF="4">
<DIV2 N="1" TYPE="question">
<HEAD>Qu. 1. <HI>Whether the Lord Mayor has power to Adjourn or put off the Common Hall without their Con&s;ent?</HI></HEAD>
<P>For Order &s;ake, it has been u&s;ed and allowed to the Lord Mayor to Summon the Common Hall; and when their bu&s;ine&s;s is done, and not before; to cau&s;e Proclamation to be made, and to di&s;mi&s;s them. His Duty in the mean time, if he have any thing to do, is to take care that they be not interrupted in their Bu&s;ine&s;s either by him&s;elf or others.</P>
<P>Mo&s;t e&s;pecially he ought not to be concerned in the Election of She|riffs; for, they are not properly Corporate Officers; and the Citizens Electing them is by Charter, which is granted, to the Citizens <HI>Cives London;</HI> and the Mayor is not named in the Charter; nor can have any &s;hare in their Election, otherwi&s;e than as he comes under the ge|neral name of a Citizen.</P>
<P>This is an A&s;&s;embly of the Citizens, and their bu&s;ine&s;s is to Chu&s;e Officers. It has no Juri&s;diction. It is no Court; and neither the Lord Mayor, nor any other per&s;on is, or can be Judge there.</P>
<P>Like an A&s;&s;embly of Pari&s;hioners to Chu&s;e Church Wardens, <HI>&amp;c.</HI></P>
<P>The A&s;&s;embly may be held without the Mayor: If he die in his Mayoralty, they may A&s;&s;emble and Chu&s;e another; and &s;o they may if he commit a Crime again&s;t his Duty and Tru&s;t.</P>
<P>If he will not Summon them at all, yet they may A&s;&s;emble; or otherwi&s;e it would be in his power to cau&s;e a Forfeiture of their Li|berties for want of making Elections.</P>
<P>If on <HI>Mid&s;ummer Eve</HI> he &s;hould fall into a Feaver, and grow deli|rious, or &s;peechle&s;s, they might neverthele&s;s proceed.</P>
<P>And as they may voluntarily come together for the&s;e occa&s;ions, &s;o they may voluntarily Recede and Adjourn if they will.</P>
<P>Had Sir <HI>William Wild</HI> been Recorder, he would have declar'd as he did when he was Judge, in the Ca&s;e of <HI>Turner</HI> again&s;t Sir <HI>Samuel Starling, That the Mayor could not di&s;mi&s;s this A&s;&s;embly</HI> &s;ine A&s;&s;en&s;u, <HI>or</HI> contra Voluntatem Electorum, as that Record &s;ays. With whom agreed the re&s;t of the Judges of the Court of Common-Pleas; and al&s;o the Lord Chief Ju&s;tice <HI>Hale,</HI> and the re&s;t of the Judges of the <HI>King</HI>'s-<HI>Bench,</HI> upon &s;olemn Arguments in both Courts.</P>
<P>And they all commended this for very good Law and Cu&s;tom, and determined that he was puni&s;hable by Actions; and al&s;o in a publick way by Information, <HI>&amp;c.</HI> For otherwi&s;e it would be in every Chief Officer's Power, in all Corporations, to di&s;appoint all Elections, or to get whom he would Cho&s;en, and whom he would Refu&s;ed, by putting off from time to time, and tyring the Electors, or &s;tealing an oppor|tunity of Election of in&s;ufficient and unworthy Per&s;ons at any one day, when the great part of the Electors are gone into the Country, or to Fairs, <HI>&amp;c.</HI> who had they been pre&s;ent, would have Cho&s;en others. And by this means he would make him&s;elf Arbiter and Di&s;po&s;er of all Elections which belong to the Citizens: For the Grants are to the Citizens. And the King has tru&s;ted the Citizens with the&s;e Elections. And it is the King's&punc; Prerogative to make &s;uch Grants. and to have
<PB N="6" REF="5">them ob&s;erved. And the Mayor him&s;elf is Cho&s;en by the Citizens, and is their Officer.</P>
<P>In Sir <HI>Robert Viner</HI>'s Mayoralty, a Common Council was held by Advice of Council, though his Lord&s;hip took up the Sword, and went away, which is a much &s;tronger Ca&s;e.</P>
<P>The Speaker of the Hou&s;e of Lords, or the Speaker of the Hou&s;e of Commons cannot Adjourn without con&s;ent of the Hou&s;e; no not by Command of the King, who may Prorogue or Di&s;&s;olve. This is declared in the Roll of the collected &s;tanding Orders of the Lords Hou&s;e in King <HI>James</HI>'s time, and was declared a &s;tanding Order in the Commons, <HI>Decemb.</HI> 1678.</P>
<P>Such an extravagant exorbitant Power was never hitherto thought of, that a Mayor's &s;ingle Vote &s;hould over-rule the Votes of the whole Corporation.</P>
<P>All Corporations then are at the mercy of their Officer.</P>
<P>It is impo&s;&s;ible the Lord Mayor &s;hould do any &s;uch Act without the con&s;ent of his Fellow-Citizens.</P>
<P>The Lord Mayor is not a Judge here, but an Officer; he is not to Rule them in the Common-Hall; but to &s;erve them, when they have done, to publi&s;h their Election, and proclaim their Di&s;mi&s;&s;ion or Di&s;|&s;olution.</P>
<P>And it is a wonderful Arrogance, that a Mayor that is a Creature made by the plea&s;ure of the Citizens, &s;hould take upon him a Power to controll all them, or the major part (which is the &s;ame.)</P>
<P>My Lord <HI>Hobart</HI> &s;ayes, <HI>If the King Incorporate a Town they may Chu&s;e a Mayor or Head-Officer, though it be not expre&s;ly granted.</HI> But can any &s;en&s;ible Man imagine, that when all the Members of any City, or Town Corporate Chu&s;e a Mayor, that they give him a Power, that in ca&s;e he and they regularly meet about Corporation-bu&s;ine&s;s, and they think fit to proceed with it, and he thinks other|wi&s;e, that he alone &s;hould controll them, and interrupt for a time, if he will, and if he will for ever, all the bu&s;ine&s;s of the Univer&s;ality, and de&s;troy the very Inheritance of their Liberties. And &s;o in time to come it may fall into the Hands of a Bankrupt or Beggar, a weak or a wicked man, who (it may be) will &s;ell all the Intere&s;t he has in the world for a hundred pound, to de&s;troy the Liberties of the Corpo|ration, who happen to mi&s;place the Mayoralty upon him, and even the Liberties of this Great <HI>Opulent</HI> and Renowned City, which concern &s;o many hundred thou&s;and per&s;ons, and which are the greate&s;t In|heritance that is, or ever was, or can be among the Subjects of <HI>England.</HI></P>
</DIV2>
<DIV2 N="2" TYPE="question">
<HEAD>Qu. 2. <HI>Whether the Lord Mayor or could give authority to the Recorder, or any other per&s;on, to adjourn the Common Hall?</HI></HEAD>
<P>Mr. Recorder, by vertue of his Office, had no Authority in the Com|mon-Hall, and was not con&s;tituted, nor (being not a Citizen) was he capable of being con&s;tituted <HI>locum tenens,</HI> or Deputy-Mayor, it mu&s;t be an Alderman. Mr. Recorder could be no more than a Me&s;|&s;enger. If my Lord Mayor had &s;ent his Sword-Bearer, or his Foot-man
<PB N="7" REF="5">in&s;tead of him, the <HI>Decorum</HI> had not been &s;o much: But the Authority had been the &s;ame, and the Law the &s;ame.</P>
<P>The Livery-Men may as well &s;end their Votes by Me&s;&s;engers.</P>
<P>The Mayor and Citizens might as well do all their bu&s;ine&s;&s;es by Me&s;|&s;ages or Proxys, without meeting <HI>in Congregatione,</HI> as the Common-Hall is called.</P>
<P>The Pui&s;nee Judge that is to adjourn the Court at <HI>We&s;tmin&s;ter,</HI> can|not do it by any Per&s;on that he can &s;end.</P>
<P>An Adjournment intended or declared out of Court, cannot be an Adjournment of a Court.</P>
<P>It is not to be delegated. What Power the Mayor has is but delega|ted from the Citizens, <HI>Pote&s;tas delegata non pote&s;t delegari.</HI> At lea&s;t it mu&s;t be to a <HI>locum tenens.</HI></P>
</DIV2>
<DIV2 N="3" TYPE="question">
<HEAD>Qu. 3. <HI>Whether that which the Lord Mayor in his Sickne&s;s did do, as above, gave Authority to the Recorder to do it? And whether it was thereby &s;o put off, or adjourned, as it could not regularly pro|ceed?</HI></HEAD>
<P>My Lord-Mayors words do not purport that the Adjournment &s;hould be made by Mr. Recorder, nor was it po&s;&s;ible to be done by him.</P>
<P>The words remembred by my Lord-Mayor, and tho&s;e delivered by Mr. Recorder, all men agree to be the &s;ame in Sub&s;tance, and would be equally effectual if there were a Foundation: But they are altogether ineffectual.</P>
<P>And if Mr. Recorder had di&s;honoured his place &s;o much, as to have taken upon him the part of the common Cryer, to pronounce the words of Adjournment, nay, and if he had had, which he had not, an Order from my Lord-Mayor &s;o to do, yet that would not have altered the ca&s;e. The Common Hall were right in their Opinion, that Adjourn|ment could not be without their con&s;ent, what&s;oever form of words had been &s;poken to them.</P>
<P>But the words as they were conceived, &s;hew the Prudence of my Lord-Mayor and Mr. Recorder&punc; that they did not pretend to take upon them a Power which no Law, U&s;uage, or Rea&s;on gave them; where|by they would have put them&s;elves into a much wor&s;e ca&s;e than that of Sir <HI>Samuel Starling:</HI> For here was a greater defect of Power than in that ca&s;e. Sir <HI>Samuel Starling</HI> defended him&s;elf at the Tryal, alledging that he had no power to di&s;mi&s;s the Common-Hall till they had fini&s;hed their Election, and they might have &s;tayed, notwith&s;tanding his Pro|clamation, it was their fault or errour to go away. But the Lord-Chief-Ju&s;tice &s;aid, that defence would not &s;erve him; for if he, or any other per&s;on pretending to power, &s;hould take upon him to put off the A&s;&s;em|bly, it was highly puni&s;hable, and it did rather aggravate and double the Offence, to &s;ay he deceived and di&s;appointed the people of their Right of continuing there by pretence of an u&s;urpt Power, which in Truth and in Law he never had. And yet he was Mayor and pre&s;ent, whereas here the Mayor was not pre&s;ent, and Mr. Recorder was no Of|ficer to the Common-Hall, nor a Freeman, nor a Member of the City. Mo&s;t certain<GAP DESC="illegible" RESP="MURP" EXTENT="1 letter">y as this ca&s;e is, there was no way of Adjourning the Com|mon-Hall,
<PB N="8" REF="6">but by the complyance of the Livery-Men. And if upon this Intimation they had gone away, that tacite con&s;ent perhaps had been a &s;ufficient Adjournment or putting off. But on the contrary, all the Hall di&s;agreeing to it, they went on regularly; and as regularly as ever they u&s;ed to or can do.</P>
<P>For till la&s;t <HI>Mid&s;ummer-day</HI> there never was a Mayor that ever pre|tended to interpo&s;e while the Citizens were a Polling.</P>
<P>If the Recorder had arrogated this to him&s;elf, he mu&s;t have an&s;wer|ed for it in Actions at the Suit of the Per&s;ons that were to be Elected, and at the Suit of every Elector who was di&s;appinted of his Voice, or of the fruit of his Voice, liable to Information, Indictment, and Impeach|ment, and expo&s;ed to the contempt of all men, e&s;pecially of his own Profe&s;&s;ion.</P>
<P>This could never be an Adjournment being not declared to be either by Mayor or Recorder, nor intended, or if it had been intended and de|clared, yet was impo&s;&s;ible and void, again&s;t the con&s;ent of the Com|mon-Hall.</P>
<P>It were to &s;tudy impo&s;&s;ibilities, to go about to advi&s;e or invent any way, form, or means of adjourning the Common-Hall in this ca&s;e a|gain&s;t their con&s;ent.</P>
</DIV2>
</DIV1>
</BODY>
<BACK>
<DIV1 TYPE="colophon">
<P><HI>London,</HI> Printed for <HI>R. Read.</HI> 1682.</P>
</DIV1>
</BACK>
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