Considerations upon the Act of Parliament, for reversing the judgment in a quo warranto against the city of London, and for restoring the city of London to its ancient rights and privileges:

Considerations upon the Act of Parliament, for reversing the Judgment in a Quo Warranto against the City of London, and for restoring the City of London to its Ancient Rights and Privileges.

1. THE said Judgment, and the Proceedings thereupon, are de∣clared to be Arbitrary and Il∣legal, p. 104. and in pursuance of this De∣claration, that Judgment is reversed; and the City restored to all its Ancient Rights, Liberties, and Franchises whatsoever; and all Charters, Letters Patents, Grants and Commissions, during the time of the avoi∣dance of the Charter in the two last Reigns, for incorporating the Citizens and Commo∣nalty of the said City, or touching, or con∣cerning any of their Liberties and Franchi∣ses, &c. are declared and adjudged to be null and void, to all intents and purposes what∣soever, p. 104, to 107.

2. Notwithstanding this, it was not rea∣sonable, that the City, which was no way consenting to its own disfranchisement; but was wholly Passive in it, should suffer or be prejudiced, as to its main concerns; but that all Proceedings in Law or Equity, all Leases made or granted, with the Cau∣tions and Provisoes limited in the Act; all Judgments, Decrees, and Sentences had, and obtained by any Person or Persons, taking upon them to be Trustees for, or concern∣ing any Lands, &c. all Freedoms, to which any Persons being natural Born Subjects or Denizons, had been admitted since the said Judgment given, that all these should stand and remain in full Force and Effect; so far as all or any of the said Proceedings were or would have been, had the Charter not been voided, materially Legal; being trans∣acted and done according to the usual Me∣thods, and with the usual Forms of Law and Justice, respectively belonging and appertain∣ing to them, because though all these things for want of a Charter, were now transacted by Commission from the King; yet if all the Proceedings upon the said Commission, for the space of so many Years had been decla∣red null and void; the Restitution of the Charter would have been a far greater mis∣chief than the avoidance of it, and the incon∣veniences would have been unspeakable, which the City must have suffered by the nullity of so many reasonable and just, as well as weighty and important Proceedings; and accordingly it is wisely provided by this Act, that all the Proceedings aforesaid, though Illegal in themselves, conside••ing the root of Authority from whence they sprang, yet shall be deemed and adjudged to be firm and va∣lid, as if the Charter had been standing, and the same Affairs had been transacted in the old and usual course, under the Authority and influence of the same.

3. When it is said in general terms, that the Judgment given against the Charter, and the Proceedings thereupon, is and were Illegal and Arbitrary; and that all Charters, Letters, Pattents, Grants, Commissions, &c. For Incorporating the Citizens and Commo∣nalty of the said City, or any of them, or touching, or concerning any of their Li∣berties and Franchises, &c. are declared and

adjudged to be null and void, to all intents and purposes whatsoever.

And when it is then further added, for the reason that hath been given, viz. to pre∣vent many and great mischiefs and incon∣veniences, that would otherwise accrue; that notwithstanding any thing contained in the said general Clauses; yet in some particular cases mentioned in the Act, that the Pro∣ceedings upon, and after the said Judgment, shall be, and are confirmed as to their effect; though in their cause, that is, to say the Authority from whence they were derived, they are declared and adjudged to have been Arbitrary and Illegal; from these two things considered and reflected upon, there are these ten very natural Corollaries, or deductions to be made.

First, That the general Clauses would have been in vain, whereby the Judgment against the Charter, and the Proceedings thereupon are declared to be Illegal, and the said Proceedings to be null and void; nay, they would have been absurd and ludicrous, unbecoming the wisdom and gravity of that great Assembly, by which with the Royal Assent they were enacted, if after this either expresly, or by any reasonable innuendoes, or intimations of such a design, all the Pro∣ceedings upon the said Judgment, had been intended or implyed, to be by the same Legi∣slators in the same Act Authorized and Con∣firmed.

Secondly, The Provisoes themselves would have been equally incongruous and absurd; if all those Acts and Proceedings upon or after the said Judgment, which were not confirmed by any such Provisoes, were not∣withstanding to stand good, and remain in full Force and Effect.

Thirdly, Thus much therefore is certain, and almost self-evident to every Person of common understanding, that where there is a general clause of nullity and avoidance of all the Acts of an Illegal Power, to which there are subjoined, some particular excep∣tions by particular Provisoes made in that behalf; that all those Acts, which neither come within the Letter of the said Provisoes, nor so much as within the reason and inten∣tion of them, are by the general Clauses eva∣cuated and annull'd, and the general Rule, in cases not excepted, is fortify'd and strength∣en'd by the exceptions from it, according to that old Maxim, which is grounded upon the highest and the plainest reason, exceptio firmat regulam in non exceptis.

Fourthly, The word Alderman, not being so much as named thoroughout this whole Act of Parliament, it is of necessity to be granted, that all those Aldermen, that were admitted into that Honourable Court, after Judgment given against the City Charter, till the date of this Act of Parliament, for the reversing of that Judgment, that is to say, till the twentieth day of May 1690, were illegally admitted; that Judgment and the Proceedings thereupon or thereafter, till the time of restitution, being declared to have been Arbitrary and Illegal.

Fifthly, The said Admissions being Arbi∣trary and Illegal in themselves, and not be∣ing confirmed by any Special Provisoe, nor contained within the true reason of all, or any of the said Provisoes; they are by this Act of Parliament made null and void, that is to say, those Gentlemen so unduly and illegally admitted, have no Right to wear their Gowns, or to Sit and Act as Aldermen any longer, in virtue of any such Illegal Ad∣mission, not confirmed by this Act.

That they do not come within the Letter of any of the Provisoes, is plain, because they are not so much as mentioned or nam∣ed in any of them; so that it cannot be said there is any express Provision made in their behalf.

That they are not included within the rea∣son or intention of any of them, (tho this would hardly be sufficient to give them a Title at Common Law) will be plain to any Man, that shall duly weigh, and consider the reason of the Provisoes, which is two∣fold.

First, that the Publick, or the City in common, and those with whom they trans∣acted

might not suffer, for want of a just and reasonable Confirmation of all those materially Legal Acts and Proceedings, which were had or done from the avoidance of the Charter, to the restitution of it.

Secondly, That private Persons, who had bought Offices within the Mayor or Sheriffs, or in any wise in the Cities gift, and who were competently qualify'd for their employments, and capable of them had the Charter stood, might not be turned out of them, to the great loss, if not ruin of themselves and Fa∣milies, only for want of a Just and Legal Ti∣tle; a defect which the Parliament by their Authority, was very well able to supply, as accordingly it hath done; and as in strict e∣quity it was obliged to do; but of this a little more shall be said in its proper place.

Now as to the First of these reasons of the said Provisoes; it is manifest the Aldermen are not included in it, nor in the second nei∣ther, for it could be no disadvantage to the City in general, nor to themselves in particu∣lar, for them to resign their Seats in the Court of Aldermen, and put themselves upon a new Choice in their respective Wards, any more than it was in the Case of Common Council-men, of whom a new Choice was expresly enjoined; nay, the Majority have agreed, that it was for the City's Interest to chuse a new Common Council; because they have chosen other Members, for reasons that do as nearly concern some of the present pre∣tended Court of Aldermen, as they did some of the late Common Council.

It could be no disadvantage to themselves, to be dismist from their Station of Aldermen of the City, any more than for others, to be dismist from the Common Council, for nei∣ther the one nor the other gets any thing by the Bargain, only the trouble of an Alder∣man is so much the greater, as Courts of Aldermen are more frequent than Common Councils; and there is a charge of congru∣ity, though not of absolute necessity attend∣ing it, they being obliged for the Honor of the City, to live in some greater port and equipage than they did before, and for these two reasons, because they could not well spare so much time from their private Affairs, and because of a Charge accompanying that Sta∣tion, which cannot without dishonor be a∣voided; there are multitudes that have cho∣sen from time to time, rather to pay a con∣siderable Fine to the Chamber of London, than undergo the unprofitable fatigue and trouble of that dignity, b••sides the expence and charge, that usually goes along with it.

Sixthly, Which is the sixth Corollary, deducible from the premises: He that is no Alderman within the meaning of this Act, by which all those Acts and Proceedings, du∣ring the avoidance of the Charter, are ex∣presly declared and adjudged to be null and void; which are not by some especial Pro∣visoe particularly confirmed; I say, such a Person, let him be who he will, can be no Lord Mayor, because the Lord Mayor ac∣cording to the Ancient Customs and Usages of the City, is to be chosen out of the Court of Aldermen, and all those Ancient Usages, and Customs, are by this Act of Parliament restored and confirmed.

Seventhly, Sir, T. P. who laid down his Gown, while the City Charter was still stand∣ing, and took it up again without any Legal Warrant after the date of the Judgment, and before that of this Act of Parliament, is no Legal Alderman; and by consequence, he cannot make a Legal Lord Mayor.

Eighthly, Those Gentlemen, who have continued and sat as Aldermen, during all this interval of the avoidance of the Char∣ter; and were so by a due and lawful Ele∣ction and Designation thereto, before the Judgment given, have still a right to conti∣nue, Sit and Act in that capacity, now the said Charter is restored, and the said Judg∣ment reversed; because the declared End and Scope of the Act of Parliament, made upon this occasion, was to settle and confirm the Ancient Constitution, as it stood when the Charter was seized into the King's Hands; of which Constitution they themselves were an unquestionable Part; and if the Aldermen

since the Judgment do pretend a Right, yet they cannot but confess at the same mite, that those that were made so before it, have, if not a greater, for an absolute Right will admit of no comparisons; yet a much more plain and manifest Right than they.

Ninthly, Those of the Court of Alder∣men, that lay'd down their Gowns, and de∣sisted from any further attendance upon that Court, at any time between the Judgment given, and the Restitution of the Charter by the Act of Parliament for reversing of it, be∣ing Legal Aldermen while the Charter was standing, and at the time of its avoidance; may, as many of them as are now surviving, take up their Gowns again, and Act in the same capacity that they did before; they not making a voluntary surrender, but conceiv∣ing themselves under a Moral incapacity to Act, by reason of the Illegality of the Com∣mission it self, or not liking the Company that was obtruded upon them, whom they might not look upon as Legal Assessors in that Honourable Court; or fearing to be questioned in Parliament for what they did; as this very Parliament hath declared, the Seizure of the Charter, and the Proceedings consequent upon it, to have been Arbitrary and Illegal; and therefore they resigned, not because they would not Act; but because they thought they could not, being morally disabled for any further Service, for id solum possumus, quod possumuus de jure; but the Charter being restored, the capacity of act∣ing, returned together with it, and the sur∣render being an involuntary thing, created by scruples which they did not make, and which they could not get over, the Right of acting still remained, whenever the Legal capacity should return; as a Lawyer lays by his Gown, and appears at no Bar in the time of the Vacation; reserving still to himself a Right of doing both, when ever the Term shall return.

However, this is spoken, and the Author humbly desires it may be so interpreted, without any reflection upon those honest and worthy Gentlemen, who continued still to act, during all the time of the avoidance of the Charter; which as it must be confessed, to have been a signal Service rendred to the City and the Nation, by influencing in some measure the Proceedings of the Court, and by hindering of worse Men from Sitting in their Places; so was it an undoubted Argu∣ment of courage and a publick Spirit; and no sign of want, either of Integrity or Judg∣ment; for the Judges and the Lawyers them∣selves, were not agreed, as to the Legality of the Seizure of the Charter and its Franchi∣ses into the Kings Hands; and much more then might those, who do not profess the Law, but depend wholly upon others for their Sentiments in these cases, be divided in their Opinions concerning it; and now in God's Name let them unite together, for the be∣hoof and service of their Country in the ge∣neral, and of this Famous and Renowned City in particular; since they both confess the Restitution to be Legal, whatever disputes or controversies may arise concerning the Sei∣zure, which there is now no reason to keep stirring any longer.

Tenthly, and Lastly, From all that hath been said, there is this further Consectary to be deduced, viz. that the Legal Court of Al∣dermen, now the Charter is restored, doth and will consist of three sorts of Persons.

First, such as were Legal Aldermen before the Seizure, and have continued ever since to act in that capacity.

Secondly, Of such as laid down their Gowns, since the giving of Judgment a∣gainst the City; being before it Legal and duly qualify'd Aldermen of the same, if they please to resume their Gowns and their Posts again.

And thirdly, Such as shall be Legally pre∣sented by the respective Wards, and accept∣ed by the Court of Aldermen, to supply the vacancies in those Wards, where an Alder∣man is wanting; but all that took upon them that Stile and Title, during the avoidance, not being Legally possessed of it before; are by this Act of Parliament manifestly prohibit∣ed from acting any longer, either to the pre∣judice

of those that have a Legal Right, or otherwise, where there is a vacancy, without a new Election.

Fourthly, But in answer to all this, there is a Clause of provision in the Act of Parlia∣ment, which is trumpt up in defence of those Gentlemen, who acted under the Name and Notion of Aldermen of this City, whom the foregoing Corollaries would exclude, it will be worth, our while therefore impartially to consider it; the whole Clause is as followeth.

And be it Enacted by the Autho∣rity aforesaid, that all Officers and Ministers of the said City, that right∣fully held any Office or Place in the said City or Liberties thereof, or in the Borough of Southwark, at the time when the said Iudgment was given, are hereby confirmed, and shall have and enjoy the same as fully as they held them at the time of the said Iudgment given; except such as have voluntarily surrendred any such Office or Place, or have been remov∣ed for any just cause; and that every Person who since the said Iudgment given, hath been chosen, admitted, or placed into any Office or Employ∣ment within the said City, upon the death, surrender, or removal, as afore∣said, of the former Officers, shall be and is hereby confirmed in his said Office or Employment, and shall have and enjoy the same in as full and ample manner, as if he had been admitted or placed therein according to the Ancient Customs of the said City.

For the right and clear understanding of which Clause, there are these following things to be considered.

First, It can never be too often suggested and reflected upon in this case, that the Sei∣zure of the Charter, and the Proceedings thereupon, being declared to be A bitrary and Illegal; it must needs be very absurd and incongruous, to suppose, that any more of the said Proceedings was intended to be confirmed by this Act of Parliament; but only such as could not be annull'd or va∣cated without a publick Mischief; or at least a private hardship and injustice to par∣ticular Persons, who had a fair title in equi∣ty to better usage, and must suffer extreme∣ly by the repeal of all those Acts, which passed from and under the Commission; to confirm the said Proceedings any farther than this, being to Abett Arbitrary, and Illegal things for no reason at all, unless it were because they were Arbitrary and Illegal; and at that rate, it had been more suitable to the same design to confirm the Judgment given, which would at the same time have justify'd all the Proceedings thereupon, than to reverse it.

Secondly, This Paragraph by the very wording and penning of it, however obscure and ambiguous it may be pretended to be, does manifestly contain matter of privilege, benefit, and advantage, and this is the mean∣ing of those words, that all Officers and Ministers of the said City, that rightfully held any Office or Place, &c. are here∣by confirmed, and shall have and en∣joy the same, as fully as, &c. and after∣wards, that every Person, who since the said Judgment given, hath been chosen, &c. shall be, and is her••by confirmed in his said Office or Employment; and shall have and enjoy the same, in as full and ample manner as if &c. now the word confirming, plainly implies a Privilege or Emolument, accruing from the Office or Thing confirmed; and looks as if it were something worth contend∣ing for, worth putting in a claim of equi∣ty, in order to be confirmed; and the hav∣ing and enjoying as fully, and in as full and ample manner as, &c. are terms denoting a considerable advantage, and such as amounts to a subsistence for life at least, if it will not add Ornament and Splendor to it, as many of the City Offices are known to do by the Salaries, and Perquisites respectively belong∣ing to them, now if any Man will tell me, where the profit or advantage of being an

Alderman lies, unless it be an advantage to spend more Money, to keep greater Hospi∣tality within doors, and to appear with greater Port and Grandeur without; to be at more trouble, and after all, to have no∣thing but his labor for his pains; then I will confess, that an Alderman is an Office within the meaning of this Clause, and that it was worth the while to be confirmed and to sue and solicite to be confirmed in a Station, which so many do yearly and almost dayly pay considerable summs of Money to avoid, and which others have laid down, out of mere weariness and irksomness to continue any longer in it; and out of a sense of the da∣mage and inconvenience, which accrued by so frequent diversions and avocations, to their own private and domestick Affairs; but if all this be quite contrary to the very truth; if there be no advantage in it, but a great deal of trouble, fatigue, and unnecessary ex∣pence altogether, for the sake of others, who are the only gainers by it, then this is not an Office within the meaning of this Clause, by which there is nothing more certain, than that a benefit or advantage was intended to be convey'd to all, that have any interest or concern in it.

* 1.1True indeed it is, that the Aldermen, besides that they are Presidents, or Foremen, or Chairmen of their respective Ward∣motes; and that they Sit in that Charact••r, upon the Bench at Guild∣hall; having the chief Administration of the Affairs of the City, committed to their Trust and Care; they are likewise Justices, or Keepers of the Peace, in their Respective Wards, and all that are past the Chair, and the three that are next it, have the same ju∣risdiction all over the City, and some of them all over Middlesex and Surrey; but this though it be indeed a great Honour and Dig∣nity; yet it is a greater Burthen, without any proper advantage to themselves, what∣soever it may be to the Clerks acting under them; and therefore as such they do not come within the meaning of this Provisoe; which was to restore and confirm such Offi∣ces and Rights, as were of advantage and be∣nefit to the Possessors.

And in consideration of the great trouble, charge and expence they are at,* 1.2 by taking the Stile and Character of Aldermen of the City upon them; it is ex∣presly ordained in one of the Royal Char∣ters, which is confirmed by, and contained in the great Royal Charter of K. Charles II. that as long as they shall continue Alder∣men there, and shall bear the charge of Al∣dermen proper, and also those, which before had been Aldermen; and have also with their great costs and expences Born the Offices of Mayoralty, shall not be put in any Assizes, Juries, or Attaints, Recognizances or Inqui∣sitions out of the said City; and that with∣out that City, neither they nor any of them be made Collectors, or Collector, Assessor, Taxer, Overseer, or Comptroler of the Tenths, Fifteenths, Taxes, Tallages, Sub∣sidies, or other charges or impositions what∣soever, &c. So, that it seems not only the Aldermen, but the Mayor himself, notwith∣standing any contigent advantages, which may or may not happen, have been always reckoned to be in Stations of great expence and trouble; and though it be a privilege and advantage to the City, to be governed by such Persons of their own chusing, and of their own Body; yet, that to the Persons themselves, it was, and was looked upon, as an inconvenience and a Burthen; and for this reason, neither the Mayor nor Alder∣men come within the meaning and design of this Clause; and the same may be said likewise of the Sheriffs, who are at a very great charge, in the discharge of that weigh∣ty and important Trust, without any pro∣spect, but what is very remote and very contingent, of any thing like an equivalent advantage in the time of their Mayoralty, when it shall come; which depends wholly upon the uncertain lives, as well of them∣selves as others; of themselves, because they

know not whether they shall live so long; of others, because they know not whether they will dye then or no; the great advantage of the Lord Mayor, consisting in the disposal of those Offices by Sale, that fall by decease of the several Officers that fill'd them, du∣ring the time of his Government and Admi∣nistration.

Thirdly, Furthermore, the said Offices hereby confirmed to the respective Officia∣ries of the same, are in this Provisoe called not only Offices, but also Places and Em∣ployments; now if a Man should ask the Question, what Place such an one was pos∣sessed of, or was invested in? It would be absurd in this case, to say he was an Alder∣man, because he gets nothing by it; but if you say he is Commissioner of the Custom-house, or he is Post-master General; these indeed are Places in the English Language; because there is profit and business mixt to∣gether, a Place being generally understood by an elliptical or curtailed way of speech a∣mong us, of a place of profit or advantage; it cannot be denyed, that this is the most usual, and the most natural acceptation of the Word; but whatever becomes of Place, Employment is certainly a Man's livelyhood and business; that by which he gets his sub∣sistence in the World, and if the Question were asked, what Employment such a one is of? it would be ridiculous to answer, he is an Alderman, a Mayor, or Sheriff; because by Em∣ployment, is meant that which is a Man's own proper business, for the acquitting an Estate, or for the support of himself and Family; whether it be any Craft or Mystery in the way of Trade, or any Place or Office, with salary or perquisites or both, whether the income or gain be more or less, so it be that in which a Man's particular business consists; and by which he endeavours, either to get an Estate by honest and lawful means, or at least to provide a subsistence for himself, or those for whom he is obliged by Nature, Custom, or Law, to make the best provi∣sion he can; but if to be an Alderman, a Mayor, and Sheriff, be not in the English Language an Employment, then in an English Act of Parliament; nothing is more certain, than that they cannot come within the meaning of this Provisoe.

Fourthly, But now if by Office, Place, and Employment in this Paragraph, we un∣derstand all those Offices in the City gift and service, from the Recorder to the meanest Officer, belonging to the Lord Mayor, or Sheriffs, or to either of the Compters; receiv∣ing wages and perquisites for the same, and having a Legal tenure or possession therein, then the sense of this Paragraph is very easie, and that is manifestly the only true s••nse when all is done; that whereas, by another Provisoe in this Act, care is taken, that all the Legal Proceedings, that passed from, and after the Judgment given against the City Charter, that is to say, all those Proceedings, either in Law or Equity, that wanted no∣thing to make them Legal, but only a Legal Authority and Jurisdiction, should be rati∣fy'd and confirmed, as in Reason and Justice they ought to be, to prevent the disorder and confusion, that would otherwise ensue up∣on their nulling and avoidance, so as to pri∣vate Persons, who were legally possessed of Offices and Employments in the City Gift; while the Charter and its Authority were yet standing, and in full force and effect; which Offices and Employments, were for the most part their livelyhood and subsistence, which they had purchased with their Penny; and which they had still continued, to the great Service and Benefit of the City and its Go∣vernment, to exercise and administer, du∣ring all the time that the Charter stood null and void, by virtue of the Judgment upon the Quo Warranto; it would have been the greatest hardship in the World, to reward all these Services with an ejectment, out of their respective Places; or to put them upon the trouble or hazard of a new Choice, when they had already purchased and pay'd for their Employments; and when the Charter being restored, they were so naturally and rightfully restored together with it, by having formerly belonged to it, and a∣cted

by and under its influence and vir∣tue.

Again, as to those who were admitted, or chosen into any such Offices after the date of the Judgment, or between that and the time of the reversing of it, coming in upon decease, or upon voluntary surrender, or upon ejectment for a just and lawful cause; they also are by this Provisoe confirmed, as in equity they ought to be, their employ∣ments being for the most part their lively∣hood and subsistence; they having general∣ly purchased them with their Money; being duely qualify'd for them, and having served the City, many of them for several Years, with diligence and faithfulness in them. For which reasons, taken all of them together, they had a great deal of equity on their side, and to eject them, or put them upon a new risque, a new purchase, or a new choice in these circumstances, would have been the greatest and the plainest hardship in the World: But now nothing of all this con∣cerns those Aldermen, that have been chosen or admitted since the avoidance of the Char∣ter, they have nothing of equity to plead for themselves; neither can they complain of any hardship in being ejected, or put upon a new choice in the vacant Wards, neither have they any thing to plead for themselves, but only a Possession which in its root, ac∣cording to this very Act, is Arbitrary and Il∣legal; and the Parliament not designing to confirm Arbitrary things for no reason, but only where the things, though defective in their Authority, were materially just, and where there would be cruelty and hardship in making them null and void; it is mani∣fest that they, as they do not come within the letter of this Paragraph, where the word Alderman, is not so much as mentioned, so neither have they any share, or Portion in the true meaning and intention of it; which was to shew mercy in some cases, where equi∣table reasons did so plainly, and so loudly require it; not to confirm Illegal and Arbi∣trary things in all, which would have been to confirm and justifie the Judgment given, instead of disallowing or condemning it; which was the first and greatest intention of this Act, and bating the little underwood of equitable Provisoes, is the main timber of which it is built and consists; and if a possession should be pronounced firm for no other reason, but because it was a possession, without regard, whether it were legal or no, this would overthrow and confound all pro∣perty in the World, and make it impossible for any Man to be ejected out of an Arbi∣trary Possession, otherwise than by Force of Arms, which is not the legal way, and which would introduce a State of War and Hostili∣ty in all times and places.

Fifthly, Further yet, all those above men∣tioned, are City Officers properly so called, that is, they all Act by an Authority deriv∣ed from the whole Corporation considered as one intire Body; they are the constant Ser∣vants of the City, belonging to the Lord Mayor and Sheriffs for the time being; and it is of such only, that this Paragraph speaks, they are the very words; And be it enacted by the Authority aforesaid, that all Officers and Ministers of the said City, that right∣fully held, &c. now an Alderman, though in a very large sense of that word, he may be called an Officer; yet is he not a City, but a Ward Officer, representing in the Court of Aldermen, and acting in the behalf of that particular Ward, for which he serves: An Al∣derman is not properly an Alderman of the City, or of the whole Corporation; but he is Alderman of the Ward, Foreman, or Chair-man of the Wardmote, in a particu∣lar District or Region of the City, and from thence is sent as a Deputy or Delegate into that Superior Court at Guildhall; and the Case is the same with the Common Council-Men; they serve also such a num∣ber of them in the Common Council, for every particular Ward, and are not City but Ward Officers; who all taken together in both these Courts, make up a Court repre∣sentative of the whole Corporation, and do transact in their stead, and on their behalf, but taken singly, they are no more City Offi∣cers,

then a Parliament Man, is Knight or Burgess for the whole Nation; but a Clerk of the Parliament, and a Speaker of the Parliament, are Servants to the whole Na∣tion; because they are Servants to the whole Representative Body; and the difference between these things is still further clear, by this, that there are distinct Clauses in this Act of Parliament, relating to the Restitu∣tion of the City Charter, and the respective Charters and Franchises of particular Com∣panies; and there are also distinct Provisoes for confirming the legal and necessary Pro∣ceedings in the one, and in the other; which is as much as to say, what is clear enough in it self, that the whole and part are not the same, and that one part is distinct from another, that the Charter or the Officers of the City, are distinct from those of the Companies of which it consists; that the City Charter or Officer, is not the Charter or Officer of a certain Company, nor Vice versâ, and the Charter or Officer of one Company, is not the Charter or Officer of another; and by the same way of reasoning a City Officer, and a Ward Officer are di∣stinct things; a Ward Officer is not a City Officer, nor a City Officer as such, the Offi∣cer of a Ward, or to reduce the whole mat∣ter into plainer terms, that an Alderman is not an Officer of the City, properly so cal∣led; and by consequence doth not come within the meaning of this Clause.

Sixthly, I have made this comparison, be∣tween an Alderman and a Parliament Man the rather, not only because it is very na∣tural, because of the Representation of a certain place or district, and the Inhabitants thereunto belonging in both cases; but be∣cause H. 3. in the 49th. of whose Reign some of our greatest Antiquaries will needs have it, that the House of Commons at least had its first beginning; was also the First Founder of this Institution, of Governing each Ward of the City of London, by its re∣spective Alderman thereunto belonging; they are the words of Stow, Survey of Lond. p. 696. 1. King John — changed their Bayliffs into a Mayor and two Sheriffs, to these H. 3. added Aldermen, at the first eli∣gible yearly, but afterwards by King Ed∣ward III. made perpetual Magistrates and Justices of the Peace within their Wards; though Mr. Cambden seems to be of another mind, and tells us, that the Wittena Gemot or Council of Wise Men among the Saxons, was much the same with what we call a Par∣liament now-a-days; and in this he is follow∣ed by the Lord Chief Baron Atkins, in his Learned Discourse of the Antiquity of the House of Commons; but however that be, we do not only read that Hen. III. was the Person that set Aldermen over every Ward; but in his time, we find mention also of the Folkmtoe, which was the same with our Present Common-Council, who were used then upon Emergent occa∣sions to meet at Paul's-Cross,* 1.3 as they do now at Guildhall, where some∣times the King himself; sometimes his Chief Counsellors and Ministers of State; and sometimes even Foreign Ambassadors, and Foreign Kings too, with the Prime of our Nobility and Clergy were present, so great and venerable an Assembly was the Common Council of London reckoned in those days.

Seventhly, If Common Council Men, as Representatives of their respective Wards, are not Officers within the meaning of this Provisoe, then neither are Aldermen, be∣cause they both represent, and both of them represent the very same Persons and Places, though the one do it in a Superior Orb and Station to the other; and therefore this re∣presentation, if it do not make an Officer within the meaning of this Clause in one case, neither will it in the other; and espe∣cially, when both of these Officers, so cal∣led in the largest sense and notion of this word, being of the same nature, which con∣sists wholly in delegation of trust and repre∣sentation of Persons; yet neither of them are directly named, and therefore, both of them must either be included in it or excluded

by it. Now that the Common Council are not included in this Paragraph, for the Con∣firmation of Officers is manifest, because a new Election of them is appointed in ano∣ther Clause p: 111. and if it be said, that this is only an exception out of that general Clause, for the Confirmation of Officers, that cannot be neither, because at that rate the exception would be much larger than the Rule it self; the Common-Council amount∣ing with the Aldermen, included, who are a part of it to about 260. which is near an hundred more than the Officers of the City properly so called, who receive Salaries and Perquisites by their Places; now this would be so great an absurdity in an Act of Parlia∣ment, that it is absolutely necessary first; that the former Paragraph considered by it self, be not understood of all Officers in the general, in the utmost Sense and Latitude of that word; as it imports any Post or Sta∣tion whatsoever; wherein there is a Trust and a Power for the execution of it. 2ly. It is equally necessary for the same reason, that this latter Paragraph compared with the for∣mer, be understood of Officers of a different nature; and thirdly, if the latter had been only an exception out of the former as a Rule; to prevent the plain clashing, and contradiction of the two Clauses with each other; it should have been added, as is u∣sual in the Stile and Method of Acts of Par∣liament in such Cases; any thing in this Act to the contrary in any wise not∣withstanding, or words to that effect,

Eighthly, Again the same Person is both Alderman, and Common-Council Man at the same time; for every Alderman is a Member of the Common-Council; now it would be very strange, that the very same Person considered, as a Common-Council-Man; which it is possible he would not have been, had he not been Alderman likewise; should be excluded out of this confirming Clause; and yet as an Alderman be includ∣ed, when he is not so much as named in either respect; and when the Representa∣tion is the same, and of the same Persons in both cases, only in the Common-Coun∣cil-Man, as barely such, it is but Tempo∣rary, in the Alderman it is perpetual, in the Alderman the Representation is more con∣stant; inasmuch as Courts of Aldermen, are more frequent and more certain than Common-Councils; and inasmuch as he always Acts in his Ward in that capacity, though neither Court of Aldermen, nor Common-Council be Sitting; Lastly, an Alderman is a Name of greater Honor, and of a Superior Station; but these are diffe∣rences only in degree, in dignity, and in duration, not in Nature; but as to the Re∣presentation it self, the delegation and the trust reposed, tho in a lower Sphere, they are plainly and manifestly the same in both.

Ninthly, If it be demanded, why was not a new Election of Aldermen appointed, as well as of Common-Council-Men; the An∣swer is easie, the Common-Council, barely as such, are annual Officers, the Aldermen are perpetual; therefore the Common-Council, in being, at the making of this Act, was alto∣gether illegal, being wholly chosen since the avoidance of the Charter, during which time, all the Proceedings are declared, by this Act, to have been arbitrary and illegal, though some of them, for particular Reasons, con∣tained in the Provisoes were confirmed; but an Alderman being perpetual, all those Al∣dermen that were so before the Judgment given, and have continued to act as such ever since, or are still surviving, are con∣firmed, the Charter and Franchises being yet upon the same bottom, and restored as exactly as they could be to the same state, upon which they stood, and in which they were before the aforesaid Judgment; and for this reason, those City-Officers that were so in the sense of the controverted Para∣graph, before the Date of the Judgment, would have been confirmed of course by the general meaning and intention of the Act, without any especial Provisoe; but that in such Cases abundans cautela non necet; the Act could not be too cautious or

too express in an Affair upon which the Subsistence and Livelihood of so many Per∣sons and Families depended, but now as for those Aldermen who were made so, or took upon themselves to appear and act as such, since the bringing of the Judgment, their Choice being vicious and defective in its Root, and they not being confirmed by any special Proviso, or so much as named in it, they are discarded of course, and the vacant Wards are of course to enter upon a new Choice, when we have seen what Vacancies there still remain, after the old and rightful Aldermen, that ceased to act for the Reasons that have been given, have reassumed their Gowns.

Tenthly, If it be still further demanded, why is not the time assigned for filling up the Vacancies in the Court of Aldermen, if any such there be, or shall happen to be af∣ter the restitution of the old Possessors to their respective Places upon the Bench; as it is in the Case of Common-Council-Men, whose Election was appointed to be upon the Tenth of June, in the Year 1690. the Answer to this likewise is very plain and easie, and it is this:

Upon the restitution of the Charter, the Parliament designing a new Common-Council, a new Lord Mayor, and new Sheriffs, there was a necessity that the time should be as∣signed, otherwise the present must have gone on in their respective Trusts and Charges, (or else there must have been no such Offi∣cers at all, neither Lord Mayor, nor Sheriffs, nor Common Council) till the usual time, when such Officers were wont, according to the ancient Customs of the City to be chosen; for those ancient Customs being now re∣stored by this very Act, they could not be altered in any particular instance without a special Proviso; but in the Aldermen it was quite otherwise; when ever a Vacancy hap∣pens, let it be at what time of the Year it will, the destitute Ward may proceed to a new Presentation, and the Court of Alder∣mens acceptance of a Person presented by them, compleats the Ceremony of his In∣vestiture into that Office and Station; so that there was no need to appoint a time for the Election of Aldermen, and therefore it was not done.

Eleventhly, But now because our Adver∣saries will needs be asking of Questions, let us return the Curiosity on our parts, and ask them a few which they may consider of at their leisure; in the mean time, be∣cause our hands are in at answering as well as asking, we will give them such Answers as we think most proper, and let them if they do not like them, afford us some that are better.

Quest. 1. What is the reason why the City are enjoined by this Act of Parliament, to proceed to a new Election of Lord Mayor, Sheriffs, Chamberlain, and Common-Council, at the times therein particularly specified and appointed.

Answ. It was certainly, besides the ille∣gality of the former Choice, that they did not like the Persons chosen, otherwise it would have been very irrational, not to con∣firm them till the usual times of Election of such Officers, but on the contrary to put so great a Body into a Ferment and Contrast within it self, just at the time when the King was going upon his Irish Expedition, but that they designed to put he Government of the City, in his absence into better and safer hands, and that indeed was a very good reason.

Quest. 2. What was the reason, that if there had been no Election of the Officers aforesaid at the times appointed, it was pro∣vided that the old ones should continue till the usual times of Elect••on and no longer, that were in possession of their respective Charges at the time of the Judgment given.

Answ. The reason was very plain there was a Faction in the City that had been strangely b••ffled, notwithstanding their boast∣ed Numbers, in the Election of Members to serve in this present Parliament, which the Persons that w••••e to manage the Poli at the new Elections for the Officers appointed to be chosen, being deeply sensible of, and upon the point of despair, that ever they

should succeed in any new competition, it was suspected by the Parliament, that the Persons in possession would have in∣sisted upon that, and would have declined a Choice; but this, if it were not a pro∣bable, yet it was at least a possible thing, and a possibility of such consequence, as deserved a Clause purposely to be inserted, to obviate and prevent the possible In∣conveniencies that might arise from it; and this was a further indication how deeply in Love that great Assembly was with the present Managers and management of the City Affairs.

Quest. 3. A third Question to be started is, since in case of new Elections, the old Offi∣cers before the Judgment given, were to continue out the remainder of their time, (that time which they served afterwards not b ing reckoned in Law as any part of their Year) what was the reason they were to continue no longer, notwithstanding in case of a new Election they were to go on through the whole next Year?

Answ. The Answer to this is very easie also; they did not think fit to continue them another Year, who had already to all intents and purposes of Action, Trouble, and Charge, served one whole Year and a∣bout four Months already. Let the World judge now, if this be a good Answer; whe∣ther they intended that the present pre∣tended Mayor should continue for three Years successively together? Or whether there were not a plain innuendo in such a Provisoe as this, by which he is tacitly barr'd from holding any longer?

And now from all this, I think there is nothing more evident than these two things.

First, The Aldermen, so called since the avoidance of the Charter, are made no Al∣dermen by the restitution of it.

Secondly, That Sir T. P. upon these Prin∣ciples is no Alderm••n, and that by conse∣quence he is no Lord Mayor; which two things are so plain by the express Letter, and by the Latent; but yet notwithstand¦ing clear and undeniable intention of the Act of Parliament, that nothing can be more.

But tho nothing can be more plain than this is, and tho one Demonstration be as good as a thousand, yet to summ up all, and that the Gentlemen concerned may not complain they have not their Measure, tho they have their Weight, I will add one Ar∣gument farther, and it shall be taken from a Paragraph, pag. 106. of this Act, which I will here transcribe.

And be it enacted by the Authority aforesaid, that all Charters, Letters, Patents, and Grants for incorporat∣ing the Citizens and Commonalty of the said City, or any of them, and all Charters, Grants, Letters, Pa∣tents, and Commissions; touching or concerning any of their Liberties or Franchises; or the Liberties, Privi∣leges, Franchises, Immunities, &c. Of the Mayor, and Commonalty, and Citizens of the City of London; Made or Granted to any Person or Persons whatsoever; by the Late King Charles II. since the late Iudg∣ment given; or by the Late King James II. be, and are hereby declared and adjudged null and void, to all in∣tents and purposes whatsoever.

The plain and clear Inference to be made from which is this, if those Gentlemen, that have assumed to themselves, the Stile and Dignity of Aldermen, since the avoidance of the City Charter, do hold by virtue of the aforesaid Letters, Patents, &c. For Incorpo∣rating the Citizens and Commonalty of the said City, then their Authority is null and void; because the Letters, Patents, under which they hold, are declared and adjudg∣ed to be so, unless they can shew some par∣ticular Provisoe, that may secure them from this general Clause; which I think, I have sufficiently proved they cannot do; or if there be any Authority they can pretend for themselves; let them shew it, and keep their

Gowns on as long as they please; but if they do not shew it, off they go, and shall be on again, when the Law and a new Choice pleaseth, not before.

But some may object and say, 〈 in non-Latin alphabet 〉〈 in non-Latin alphabet 〉; what shall we do for a Lord Mayor, if Sir T. P. be none, I answer Sir J. R. is certainly the Man; for he was presented together with the other to the Court of Al∣dermen; and though they pitched by Ma∣jority upon the former; yet since one of these two must of necessity be returned back again to the Common Hall, let them chuse who they will; the incapacity of the one implies, and infers the choice of the other, the Common Hall presented Sir T. P. as an Alderman in competition; and the Aldermen by such another mistake accepted him, as such, if they had protested against the Pre∣sentation of an unqualified Person; which a Court of Aldermen so Modelled were not like to do, the Commons must have present∣ed another in order to a Choice; but not having made any such exception, and hav∣ing but one whom they could legally chuse, the error on both hands, as well of the Commons, as the Court of Aldermen, de∣volves and fixes the unquestionable Right upon the only Legal pretender of the two.

Neither doth it signifie any thing in this case, that many of the Court of Aldermen themselves, had in Law no right to fit there; for if they had been never so legal∣ly qualify'd, yet an unqualify'd Person be∣ing presented to them, they could not chuse him, and the choice would of course have devolved upon the other.

Notes

• * 1.1

  See a Book Intit. the Present State of Lond. and another called the Royal Charter of Confir∣mation, &c.
• * 1.2

  Royal Charter of Confirmation p. 64.
• * 1.3

  See Holinsh. in the Reign of Hen. III. p. 262, 263, 264.