THese were referred to a Commitee, and Counsel for the Companies there heard, And Mr. Price in the behalf of the Freemen: from thence it was referred to be fully debated before the Lord Mayor, Court of Aldermen and Common Council. And on Saturday the 14. of December, the Court be­ing sat at Guild Hall, the Companies brought for their Counsel, Mr. Maynard, Mr. Hales, and Mr. Wilde, Gentlemen most famous in the profession of the Law; and the Freemen (besides Mr. Iohn Price) had prevailed by much intreaty, with Major Iohn Wildman, as I am informed, without hopes of Fees or Rewards to plead their Cause; and so the debate begun as followeth:

My Lord, I Only crave leave to speak one word in the behalf of my self; for I acknow­ledge my self to be but weak in the knowledge of the Law; and I therefore unable to withstand those Gentlemen of the long robe, come only as a Citizen of London, to render a reason of my subscribing of that Petition that was presented unto your Honour, and this worshipful Court; And I hope you will not judge otherwise of my appearing here at this time. We began the last time to speak of it, to vindicate it to them that opposed us herein; And they being the first that spake then, we desire that they may likewise begin now, and then with your Lordships favour, we shall reply to them; for my part, I thought there had been an issue put to the business, and little thought had I to appear any more about it.

They that oppose any thing that is setled, to the end to have it altered, they usually begin first to shew their grounds or Reasons, in all Courts of Justice.

The intent of our coming here, is not to introduce any novelty, but to maintain the ancient priviledges of this Famous City under which it hath for so many hundreds of years flourished, in all Happiness the Earth affords with Peace and Plenty.

And therefore we conceive we shall not need to produce any arguments to defend our cause, but to answer the objections that shall be made by such that do oppose us in the enjoying our Right, always presuming that where the Possession goeth, there the Right is; and therefore if they on the other side have any thing to Object, we are ready to give Answers to their Objections.

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We hope we are before such Men, as will not take notice so much of the Persons as of the Arguments, that are brought on both sides; And therefore my Lord, I shall begin to proceed where they please. The last time this busi­ness was under consideration before the worshipful Committee to be heard, the business was driven as I conceive, to this head by your Opponents, to know whether the thing desired by us, be in your power to grant to us; And whether the things desired by them, were in your power to deny them.

They Pleaded by their Council, that they maintained their Priviledges by Right of Custom, so that it was Argued that the Law of Election was not in this Courts Power to give.

So that your Lordship and this Honourable Court, are by them made not so much as Judges, much less Parties.

Mr. Price, takes it for granted, That all this Court understands the State of this Case, which they do not; and therefore I desire the Question may be rightly stated, that is to be disputed upon, otherwise you will spend much time and run into confusion, and it will be impossible for them that hear you to un­derstand the business; so that I desire the Question may be stated, and the matter of Fact agreed upon.

My Lord, I had thought to begin where we left the last time; and the Question then stated, was reduced to this short point; Whether the Right of Election of the chief Officers of this City, did belong to the Livery-men of the several Companies, with the Lord Mayor and Court of Aldermen, by vertue of a Law of this Court, or by vertue of custome.

I beseech you let it be clear what you go upon.

My Lord, I am here desired by many Free-men of this City to appear in their behalf, to inforce a Petition of theirs delivered to this Court, and they also produced to me a Petition preferred to some others in opposition to theirs; And as I conceive, that noble Gentleman Mr. Recorder, desires that which is very requisite, that is, That the Question may be rightly stated; and so the Arguments produced on either side; Now I conceive the Question is this, Whe­ther the Wardens, Assistants, and Livery-men of the several Companies of this City of London, ought to have the Election of the Lord Mayor, and Sheriffs of London, or whether the Freemen in general by themselves or by their Depu­ties have the Right of that Election.

The Question cannot be collected from the Petition, which prays, That the People of the several Wards (where many Forreiners inhabit,) may chuse the Lord Mayor.

[Page 6]

My Lord, I believe those Gentlemen endeavour so to state the Question, that they might make the Court believe, that we would split our selves upon that Rock of Popular Confusion; but we shall endeavour to avoid that Clamor. We conceive the Question to be this: Whether the Masters, Wardens, Assistants, and Livery-men of the several Companies, of Right ought to Elect the Lord Mayor, and the Sheriffs of this City; Or the Freemen of the City by themselves or their Deputies. It will be concluded on both sides, That the Lord Mayor, and Court of Aldermen, with the Common-Counsel men, may have a Right in the Election.

We say the Lord Mayor, and the Aldermen, and the Common-Counsel, and the Masters, Assistants, and Liveries of the several Companies, have the Right of the Election, and Possession of that Right.

The Question is, Whether the Election as it is, shall continue, or not con­tinue; We deny not that the Right of Election doth belong to the Wardens and Livery-men of each Company, with my Lord Mayor, and Court of Al­dermen. But the Question is, Whether it belongs to them upon such grounds as are unalterable by this Court; if they are unalterable by this Court, let them shew by what Law; if they are alterable, we are then in a fair way to have one Petition granted.

There is nothing pretended by the Petition that is endeavoured to be made the Question. They do complain in their Petition, That this Government which you have so long enjoyed in this City, is an Imposition of Tyranny and Sla­very, and that imposed; when I came first hither, I thought I was to speak to matter of Right, but they decline that, and speak to point of Crime.

It is true, these words of Tyranny and Slavery are in the Petition, but they are with a Parenthesis. I desire the Petition may be read.

(The Petition was then read.)

We say that the imposition of such and such things is slavery? but it is not in relation to this Court, but in Answer to their Petition, who call it in their Petition their Ancient Right; if it be their Ancient Right, let them shew by what Law; And I conceive the Parenthesis is only in Relation to that Expression.

I humbly conceive (my Lord, and Gentlemen) the thing in Question must be collected from the Prayer of both Petitions; the Sum of the Prayer of one Pe­tition is this, that the Representatives of all the Wards may (as of Right they ought) Elect the chief Officers of this City.

[Page 7]

I think, the business before you, is to come to the Question in hand; and I humbly beg, That for expressions on both sides, they may be wholly waved; and if you will not speak the Question, that you would agree of it in writing.

I suppose it is conceived by all what we both aim at, I shall be a suitor that those Gentlemen may go on to matter of Argument, and I shall speak what I am able.

May it please your Lordship, to let me pursue the Recorder's motion; We humbly conceive that the Prayer of our Petition must direct us to state the Question; we pray no more but this, That the chief Officers of the City may be chosen by the several Wards, in their Representatives Annually. We do admit that the Lord Mayor, the Court of Aldermen, and Common-Council, may have Right of Election, because they represent their Wards; but we pray that our Right in Electing, as we are Free-men, may be restored to us.

My Lord, There's no Officers of any Corporation in England, but are by Usage or Charter; and if these Gentlemen be about Officers, their Question is about the Officers of a Corporation; these Gentlemen would introduce some new thing that hath not been heretofore used, and we desire to know upon what imagined pretence they would have it, and that they shew us the persons to inforce the thing they desire; otherwise, why do they Petition?

My Lord, These Gentlemen would avoid the true stating the Question, and engage us in Logomachi [...]'s, contentions about words; we would know wherein they oppose the desire of our Petition, to have the Ancient Right of the Citizens of Lond [...]n, restored to them in the Choice of the chief Officers of the City.

We deny That you desire in your Petition, is the Right of the City of London. It is so far from being their Right, that when they put that in Execution, they lose their Charter, and all their Franchises.

The Question was reduced to this, Whether it was in the power of this Court to alter what was then in custome, so that we shall not be lookt upon as adversaries to our Opponents, denying this Court their Right of election; but if we make it good, that the custome was altered by you, why then we trust we serve you in so doing, if we prove it in your power to alter it now; and it shall encourage us to pray, and you also to give what we ask, if it shall tend to the good Government of this City.

If the right of election belong to the Livery, it must appear by written Law, or by custome time out of minde; if by a Law, it must be by some Law of the Land, or by some Charter, or by some Act of Common-Hall, or Com­mon-Counsel. If it be by Charter, we must insist upon the terms of the Char­ter, [Page 8] and expounded the same by succeeding practices, and if this Char­ter granted in King Iohns time be meerly declarative, we shall know what the custome was by the succeeding elections.

If you plead custome, we shall finde custome for many years, that the chief Officers of the City were elected by the Lord Mayor, Court of Aldermen, Common-Counsel-men, and the Wards of the City, and not by the Livery­men of every Company, as is desired by these Gentlemen.

To the 15. year of Ed. 4. they are in use from the 19. year of Ed. the first, which was 194 years. It was the practice of the City to choose by Wards so long; And the Aldermen and Common-Counsel-men are chosen out of the Wards. Now for election of Mayors and Sheriffs by the wards, we will give you but a place of that plenty we can give to that purpose, in the 19. year of Ed. the first 1231. and in the 31. year of Ed. the first. In the 19 of Ed. the first out of twelve men of every Ward, were the Sheriffs chosen; and so was the Mayor Thomas Blun chosen; the Sheriffs were chosen by the Lord Mayor, the Court of Aldermen, and Common-Counsel, and twelve men out of every Ward; And Iohn Lincoln was so chosen.

And in the 32. of Ed. the first Iohn Blun was so chosen again; and in the 33. of Ed. the first, Iohn Blun was chosen the fifth time Mayor so, and so were the Sheriffs.

And again 1 Ed. the second, Peter Drove chosen Sheriff as before, and Iohn Blun was chosen Mayor the sixth time; the first of Ed. the second, Blun was cho­sen the seventh time by the Lord Mayor, Court of Aldermen, and the Com­munity which was summoned thereunto, which was twelve men out of every Ward; and in the 2. of Ed. the second, Bu [...]ler and Dov [...]r were chosen Sheriffs as before; the time would fail if we should speak of Palmer and Edmonds, &c. and many others who were chosen by the Lord Mayor, the Aldermen, the Com­mon-Counsel, and the good men of Wards.

At the 22. year of Henry the sixth, were present at election of the Mayor, all the Common-Counsel-men, and several discreet Citizens chosen out of every Ward; its true they are called the Commons and Community, and if that you look in the 21. of Ed. the first, the Community there is expounded to be the honest, discreet, and wise men of the Ward; so that they were Representatives chosen out of the Wards; but if it be objected, that besides these twelve honest discreet men of every Ward, there were certain other men that did belong unto this election, and surely it may imply that the Livery-men did bel [...]ng un­to the election; surely no, but by those dark expressions, must be meant the honest discreet men chosen out of the Wards, with the Lord Mayor and Alder­men, to whom it belongs ex officio.

The main argument was this; that the chief Officers of the City were to be chosen by the Lord Mayor, and the Aldermen, and Sheriffs, and Common-Counsel-men, with twelve men chosen out of every Ward that were discreet men, that was granted; but that they were such discreet men, as to exclude other, was denied: If that these are the men, they must be distinguished from other men, by another term than discreet men. Now you argue thus, that Livery-men are discreet, and therefore the men that must choose my Lord Mayor, are the Livery-men; as if you should argue, That the Lord Mayor wears a golden Chain, therefore the Sheriffs are Lord Mayors, because they wear golden Chains.

I humbly offer these Considerations:

1. My Lord Mayor, nor the Aldermen chuse not any officers of the Compa­nies; why should they then chuse any chief Officers of the City?

2. The jurisdiction of the Mayor and Sheriffs extends to a Local Power; and by these Gentlemens pleading, Livery-men, Free of this City, may live at York; and if they be at London that day my Lord Mayor is chosen, they may [Page 9] choose my Lord Mayor and the Sheriffs of this City, and yet live not under their Power.

3. The way of election we plead for, doth not exempt them from being cho­sen by the Ward to elect.

4. Free-men of this City pay Shot and Lot, and are bound to assist the chief Officers of this City: but Livery-men living not under these bounds, are not under this obligation.

5. Again, this City is distributed by way of Wards; Quest-men, Jury-men, Constables, and Scavengers, are all chosen by the Wards; and it is most neces­sary for the well Government of this City, that the chief Officers of this City be chosen by Representatives from every Ward.

6. If there be any miscarriage in Government, The Citizens living in the City must be taxt, and pay any fine for misgovernment, and therefore it is most fit they should have their vote in election.

7. And further, if any accident happen by Fire or the miscarriage of one of more of the chief Officers, if it so fall out that the Treasure of the Chamber should be exhausted and mis-imployed, that the Orphans cannot have their portions, I desire to know who must be responsible for it; the Livery-men of several Companies, or the whole Wards, and every particular man thereof?

And here give me leave to be heard with Charity: God knows my Heart, I speak out of Love to you all, and as prest in Conscience, what I have to say, I am sure it is the whisperings, nay the Report of most, and I fear too true; That the cry of the Fatherless and the Widdow doth sollicite Heaven for vengeance, for expending the poor Orphans Estates; and we trust and believe, that your Honour and this Honourable Court, whose Faces, and Lives, and Conversa­tions we so well know, that we do verily believe that your Hearts and Hands are clean from this pollution; but as we do believe, so we hope, that your Ho­nour and the rest will take some speedy course that the blood of the Fatherless and the Widdow may not stick to these Walls; Let our Blood and Estates go before the Blood of poor Orphans, that that may not one day be charged upon this City. I desire to be pardoned this digression.

I should answer some objections that are commonly made against this way of election that we desire: The first is this, That this will destroy the Compa­nies, and so at last it will strike higher, to wit, the overthrow of my Lord Mayor and the Court of Aldermen, and so consequently all Government; for my part, I know not that Absolon among us, but did I know such a man, my Hand should be upon him as soon as any mans; I say let a Bear robbed of her whelps m [...]et me, rather then a People without Government; the Magistrates power is my power, and is in him for my use, and for my part I am for the Majestry of Magistrates: for when we read of Kings, we read of Thrones and Scepters, and soft Raiment, &c.

It is true, though your chains are gold, yet they are chains as well as gold: and though your Gowns be Honorable, yet they are burdensome as well as Honorable.

But as for the business in hand, we speak not against the Form and the Beau­ty of it, but let every Star shine in his own Orbe.

Let there be no confusion; let Wards have their dues, and let Companies have theirs; I want opportunity to set forth their Glory and their Excellency in their proper places. As for the objections of Popularity and Confusion, we shall answer them if they be insisted on.

My Lord, I humbly propose no other end, but to inforce the Petition of the Free-men of this City: the Question that was stated is this, Whether the Com­panies of the several Misteries in the City, or the Free-men in the several Wards [Page 8] have right to choose Lord Mayor and Sheriffs. Now it rests upon us to prove; that the Free-men in their Representatives, chosen out of the Wards, are to choose; and we do assert this for a truth, That those, and those only that shall be actually chosen to represent the Free-men of the City of London, not excluding the Lord Mayor, Court of Aldermen, and Common-Counsel, have a right to this Election.

And my Lord, I might insist upon it, that this very City and Common-Counsel in all things do acknowledge this to be the Peoples Right; For upon your Election of your Representatives in Parliament, the Commissions you give them run in the name of the whole Commonalty of the City. And it is generally admitted to be the Peoples right in all Acts of Common-Counsel and other publick Acts, which run in the name of the Commonalty of the City, they are therefore supposed to do those Acts by themselves or deputyes: But, my Lord, I shall wave this, lest I should reduce all Government to an un­certainty, by dissolving it into the first principles, and so seem at least to run upon that Rock of coufusion which those Gentlemen would have us split our selves upon; But it is no way our intention, and therefore I shall assert this propo­sition; That the Representers of the several Wards ought to chuse the Lord Mayor and the Sheriffs, upon a Right declared by written Law; only I crave leave to premise, or to inform this Honorable Court, that those first Records that should make out the Peopels right, are imbezeled, burnt or lost, there be­ing no Record in your Treasury, but since Edward. 1.

But my Lord, by Records that are extent the Liberties of the Citizens of London appear to be more ancient then any Charter of the City thats visible to us: in the 9. Chap. of Magna Charta it is said, The City of London shall have all her Liberties and Customs she was used to have; so that there was Liberties and Customes that the City had before the great Charter of England. Now it is agreed by the Gentlemen of the long Robe, that the great Charter of England is chiefly declarative of the Common-Law; And Sir Edward Cook in his second part of his Institutes upon that ground declares it for Law, that any Law made by the Parliament it self, and contrary to the great Charter of England, and contrary to right reason, is void of it self.

I suppose he adds these words (And contrary to right reason) to shew that he means onely that a Statute made against that part of the great Charter which is declarative of the Common-Law, is null of it self; for the Common-Law, being right reason, it cannot be supposed without a contradiction, that Parliaments should of Right have power to make a Law against Right. Now the Liberties of London being confirmed by the great Charter, I cannot con­ceive that any other Liberties are there intended to be confirmed, then those common Liberties that were grounded upon right reason, and then those words of the ninth Chapter of the great Charter do but declare the Common-Law, and by consequence are unalterable; and any Law made against those Liberties of London either by a Power within the City, or without the City, is null of it self; now to make it appear that it was one of the City Liberties be­fore the great Charter, that the Free-men should chuse their chief Officers, we can go no farther then your Charter granted by King Iohn, in the year (1215.) 435 years since; that is the first Charter the City of London hath extant. And by that Charter tis said to be granted to the Barons of London yearly to elect a Mayor and Sheriffs, and the word Barons doth import no more then the Free-men of London; for then the Free-men of every Port were called Barons, though since it hath been made a name and title of honour peculiar to those called Noblemen. Now I conceive it will be agreed by the Gentlemen of the other side, that this very Charter was not the original of those Liberties of London that are mentioned there to be granted, but that it was only declarative, shewing what the Liberties of the City were; and here I must infer, that this Charter declaring that the Barons of the City (wherein every particular Citi­zen is included) should chuse the Mayor and the Sheriffs, this (I say) doth but [Page 11] declare what was the Common rihgt of all the Citizens of London before this Charter.

I may then from hence conclude, that before the great Charter it was the Right of the Citizens of London, none Excluded, That they should Chuse the Mayor and their Sheriffs; and such a Right as I crave leave to affirm to be Unalterable, that is justly so; for being a Right by the Law of Nature, 'tis superior to all other Laws, and other Laws are onely so far Right, as they agree with that; however I may more bol [...]ly say, That this Liberty of the Citizens of London being confirmed by the Great Charter, cannot be null by any Act of Common-Council; and I humbly conceive that it was not in the Com­mon-Council's Power, to make that Act in the Fifteenth of Edward the Fourth, to debar all but the Liveries of the several Companies to come to the Election of the Mayor, and Sheriffs: for they could not take away the Right of the Citizens declared by their Charter; and in the First Charter, and all others, 'tis said to be Giranted to the Citizens indefinitely, to Chuse of themselves a Mayor: and the Charter ought to be construed in favour of Right, and so 'tis to be taken that it is Granted to all the Citizens: and this their Right is apparent by the use of it, which is mentioned in all the most Ancient Records of the City: there's one or two very clear to this purpose. The City growing great and very populous after their first Charter, found it inconvenient to meet together, the Commonalty being very great: and therefore according to this their Right, which we Assert, the whole City at a Common-Hall did make an Agreement, That Eight, Ten, or Twelve, of every Ward should be Chosen by their Wards, and in their Names, and in their Steads, Elect the Mayor and the Sheriffs of the City.

As in the Sixth Year of King Edward the Second, Lib. D. Fol. 3. which if you please I desire may be Read; that you may not think I speak without Book.

And in the Twentieth Year of Edward the Third, in the Year 1347. there is an Act of a Common-Hall Recorded, wherein 'tis said that there gathered together on Simon and Iu [...]es Day, the whole Commonalty into Guild-Hall, London, so that the whole Hall was full with the Commonalty.

The Act read in these words.

‘And it is agreeed that from henceforth there shall come the Mayor, the Aldermen, and also out of every Ward of the City of London, Twelve, Eight, or Six, according as the Ward shall be great or small, of the Richest and Wisest of every Ward; and such Twelve, Eight, or Six, with the Mayor and Aldermen, shall intermeddle, and Chuse a Mayor and Sheriffs, for the Year following.’

I conceive this is sufficient to prove, That it is the Citizens of Londons Right to Chuse the Mayor and Sheriffs of London; for accordingly they did meet toge­ther, the whole Body of the Free-men; and finding that inconvenient, the Commonalty did agree at a full Hall, that such a select number should be chosen by every Ward, and sent to the Election of the Mayor and Sheriffs, as appears by the Act that hath been read; and 'tis probable, that this was not the first [Page 12] time that such an Agreement was made, but that this was made after the Com­monalty had upon some Occasion reassumed the Power of Electing to them­selves; for according to this Agreement, it was the Practice of the City of Lon­don for near two hundred years before it was put into the hands of the Livery­men of each Company; in 19th. of Edward the First, Lib. C. Fol. 62. the Election of the Mayor and Sheriffs, is said to have been by the Mayor, Sheriffs, and Al­dermen, and Twelve men of every Ward.

In the 19th. year of Edward the first, Blun was Chosen Mayor of the City of London, by the Common-Counsel and Aldermen, and by the Assent of twelve honest men of every Ward of the whole City.

My Lord, it is apparent that twelve men were Chosen by every Ward, that did Elect the Lord Mayor and the Sheriffs. And the very same words are in the 31. of Edw. 1. where Martin and Burford were Chosen Sheriffs; and in the Thirty Second of Edward the First, where Iohn Blun was so Chosen Mayor. Lib. C. Fol. 111. and 112. And in the First Year of Edward the Second, Fol. 112. Picot and Dury were so Chosen Sheriffs. I humbly submit it to your Lordship, whether you will see these Records. I may quote more, as in the Third of Edward the Second, Lib. C. Fol. 113. &c. It was the continual Practice from Year to Year, that the Twelve Men Chosen by every Ward, did Elect the Lord Mayor, and the Sheriffs; there is a whole Jury of Witnesses in the Re­cords to this purpose. And my Lord, where this Usage may seem to have ceased, because in other Records 'tis said they were Elected by the Lord Mayor, Sheriffs, and Aldermen, and the whole Commonalty; we shall make it ap­pear that this is meant the Selected Men of the Wards; though however those Records are clear for us: for if the Choice was by the whole Commonalty, it was either by themselves, or these Deputies. Yet we find one Record in the Twenty First of Edward the First, Lib. C. Fol. 6. where 'tis said, First, that there was Assembled the whole Commonalty, and then 'tis Explained in these words, That is to say of every Ward, the Richest and the Wisest.

I produce this Record for this End, to shew that where the Election is said to be by the Commonalty of the City, it is to be understood the select number of every Wards Representatives; for it is supposed every one is included; and therefore 'tis said to be by the Commonalty. I pray my Lord observe these words in this Record, the whole Commonalty, that is to say the more able and discreet men of every Ward. And to confirm this, if there be any need of it, we can produce another Record in 113. Fol. Libro C. where Election is said to be made by the Commonalty summoned thereunto: yet in Page 112. of the same, it is said men of every Ward did Choose: whence I Collect that by the ex­pression of the Commonalty summoned hereto, is understood the Twelve Men from the Wards; so that it appeareth clearly in my humble Opinion, That it was the Practice of the City for near two hundred Years, to Choose by their Representatives, before it came to be the Usage of the City, to Choose by the Livery-men of the Companies.

And my Lord, if it were needful to strengthen this, we can shew by Lib. C. Fo. 41. Edw. 1.Re­cords, That Parliament men where Chosen by the Lord Mayor, Aldermen, and Twelve men of every Ward; these were the Representers of the Wards, that joyned with the Lord Mayor, and the Court of Aldermen, in such Electi­ons; and the Commissions given to the Parliament-men, are in the Name of the whole Commonalty of the City, which admits they were all there in their [Page 13] Persons or in their Deputies, to Choose them, and give them their Commissi­ons: else the Commonalty is abused in having their Names used in the Com­missions.

Now my Lord, I shall take the boldness to conclude from all this evi­dence of the Common-Councel of London, though I much honor their power, and would be infinitely loth to detract from it: yet my Lord I must crave leave to affirm, That it being the liberty of all the Free-men of L [...]ndon; by themselves or deputies, to chuse the Lord Mayor and Sherifis; and this being confirmed to them by Magna Charia, as unalterable: and all the people having declared at a full Common Hall that they had put it into the hands of twelve Men which were their deputies, or Representatives to elect the chief Officers of of this City; this my Lord being the case, I say, I humbly, affirm, that it was not in the power of the Common-Councel by that Act 15 Edward 4 to take away the Free-mens right, not to say who should be the Peoples deputies to make their elections, they being by the People deputies themselves, and deputed to another power; So that my Lord, I now conclude that it was the Ancient un­doubted right of the Citizens of London by themselves or their deputies, to make their election of their Mayor and Sheriffs, and other chief Officers of the City; and I conceive the Petition of the Freemen of the City of London, which I now indeavor to inforce, amounts to no more then a modest humble claim of their Common right, that elections might be future be made by the deputies of every Ward, which was the ancient custome of the City before the great Charter; and all their Charters, that of King Iohn, and since, say that the election shall be according to the ancient custom of the City.

And if the King at any time sent Writs, or made-Proclamation for the quieting the elections when there was disturbances, and prohibited the ac­cess of People: Yet the more honest and discreet men of the several Wards are mentioned as bound to come to the election, and 'tis commauded that they chuse prout moris est, according to their custom; and I conceive it hath been proved that it was their custom to chuse by the Representatives of every Ward. I shall say nothing for the conveniency of this way of choice that I plead for, be­cause we claim it as our right: and we expect that the Arguments against us will be chiefly from pretended inconveniences s and when those Arguments are produced, we shall endeavor to answer them.

I suppose to satisfie your Consciences what is the Right in that which is indeavored by these Gentlemen to be defended, which they have taken very great pains about, in collecting what hath been said to you; I shall endeavour Gentlemen in the first place to remove that which seemeth to lie in my way, and so come to that which I have to say in Answer to what hath been spoken by you.

The Gentleman that first spake, taking Occasion to make an Apology for his own inability to perform the Work in his hands, he was pleased to say that which I conceive you do not believe; he would make as if he wanted parts, when certainly he shewed very great Skill in the very entrance of the business; and when the Fact was but a little stated, he would have laid hold of▪ you all, and so of making you Judges, he would have made you Parties; A [...]d indeed it is well that you are both Judges and Parties; they said, and [Page 14] doubtless they are ingenious, that they desire you to proceed according as you should be satisfied in conscience, the which for my part I doubt not but that you will; there was much said how much it did behove you in point of danger; but what that danger is I understand not; but he tels you he urged it out of zeal; also he tels you much of some secret Absolom; but for my part I understand not what, nor who he means hereby; I will take no advantage of any mans affection nor inclinations at all; but the man which that Gentlemen spake to the business in hand, was that he cited many precedents and records for the practice of what he now desireth my be effected; But truly I do extreamly much misunderstand those presidents and Records that he produceth, If that they are not as full against them, as any thing can be said.

I shall first offer the weight of their reasons, which they urge without pre­sident; which deals most candidly, you shall judge; for I shall involve the former in the latter, Mr. Price in Mr. Wildman; and first, That that was urg­ed by Mr. Wildman by way of reason was this, that it is a principle of Com­mon right, that just subjection cannot be but by assent, and there is no way whereby this assent may be but this he speaks of. I do deny his Major. I shall deny his first proposition; there is, and may be just subjection without assent; and certainly the experience of all generations in the World evi­dences this truth, that there may be just subjection without assent; and there be but few Governments but are established without assent: it is true, where the assent is, the easier is the subjection born. But what doth he mean by assent? a vertual or personal assent? if he means personal assent, why then when should there be any such assent? but to say no man nor People shall be Governed but by Assent, we deny; for is not a Lawful Conquest a Law­ful Title in some Cases? the matter is not to make the Business impossible without assent. But to that which they deliver, I can no way assent. He tels you that the several Wards must have Representatives to elect the chief Officers of this City, and he tels you the first Records were lost and imbezeled; But it is not right placed.

But Gentlemen, what doth he conclude? he tells you there were Records, and he tells you without all question, if that they were extant, they would speak for them; although he nor none else know the Contents of them. But saith he, The Liberties of London are Ancienter then the Great Charter; and the Li­berties of London being Confirmed by that Law; therefore any Law made against that, is void and null: and therefore the Common-Counsel cannot change them.

I said that wherein the great Charter was declarative of the Common-Law, i. e. right Reason, it was unalterable, and any Liberty of London of that nature, such as is that we now Plead for, ought also to be unalter­able.

[Page 15]

You said this, that our City Liberties are Ancienter th [...]n Magna Charta; and that they are confirmed by Magna Charta, and therefore cannot be altered by any Law, much less by the Common-Counsel.

I shall appeal to the whole Auditory for the Argument; then what ever Magna Charta hath confirmed cannot be by any Law repealed; and when this comes to generals, this may be of very sad consequence; I see Laws are edged tools; those that understand them, make good use of them: and those that do not understand them, will finde that they are sharpe, and will cut;

Now he comes to the presidents which I did tell you before, and hope to make it clear, that the presidents cited do overthrow that which they bring them for. I shall offer unto you, that which according to the best of my Judgment, is matter of reason, and proof of that which hath been affirmed by them. I shall not beg any favour from you, in regard I sp [...]ak for that which is dear to you all, which is the Peace, Prosperity, and well Government of this famous City: we shall first lay before you the fact, and from thence proceed to the Question. From the fifteenth of E [...]ward the fourth, there hath been a succession of Election this way, and that cannot be denied by any, which is nigh two hundred years. If any man lay claim to any thing, he either doth claim of right, or pre­scription.

Now if a man should come and put you to prove your right, when you have had possession of an Estate 150 years past, you would think your self hardly dealt withal. Now we shall prove that there hath been 180. years possession of Election this way, and it hath by the blessing of God brought with it Peace, Prosperity, and plenty to you; and I hope you are not so ungrateful, but to acknowledge it; but it is told you, and much pains is taken to perswade you by these Gentlemen that this must be removed; but un­der favour upon little grounds.

You see here are but two, and these two differ in what they would maintain. Now all Truths stand one with another; saith one, this is lawful; saith another, this cannot be changed; either you must conclude the present is lawful or unlawful; if lawful, why is it desired to be chan­ged? But judge you the consequents of this; if you deny this way now establisht to be lawful, then the whole City of London for above two hun­dred years never had one lawful Mayor, and all Actions performed by them may be questioned. Now in the fourty one of Queen Elizabeth, there being a difference in the City about Election of Officers, all the Judges of England were caused to meet together about this very thing; and it was expresly resolved by them all, that such Elections were lawful, and London is named in the Resolution; and it is said they found it a Questi­on of very great Advice, and those Judges were very grave, pious, and godly men, for some of them, as Popham and Anderson, and Pyriam also a famous man; so that Gentlemen, fifty years ago this Question was on foot, and all the Judges of the Land did then give their Resolutions, that it would be matter of very great inconveniency to alter it, and they gave it as in right of Law to belong, as it had been before; and if it be not lawful, then this City hath forfeited its Charter, and is lyable, when they that are above in Power and Authority at any time shall be pleased, to be questioned for it; I do apprehend that the foundation of your right doth not depend upon any Charter; those Charters you have, are mat­ter of confirmation, and not Charters that do give you your Right; the antientest Record that you produce, is from King Iohn, but the first year [Page 16] of Richard the first is the utmost bounds of memory. If that it be not by prescription, why then are many customs of the City void? For there are many customes and usages for which there is no Charter, nor is it possible there should be; and therefore it must of necessity follow, that Mayors was time out of Mind; and the truth is, Mayors were in use before the Charter; they were indeed called Portwards and Portrifts; but the Name was changed in Richard the First's time, and from thence they were called Mayors, and the Charter was granted in the Name of the Mayor; so that though the Officers Name be changed, it is the same Officer still, the Power the same, but not the Name, if they were not by Custome; for you must know what is by Custome, is not by Charter, and what is by Charter is not by Custome. Now then what is the Charter? the Barons of themselves may choose a Mayor; this Charter being of this Antiquity, it shall be con­strued according to usage, and that is a rule in Law, and that is your consequence; for if we shall be forced to find out the meaning of words, you shall be to seek; for Citizens in those times were called Barons. But we shall now come to answer their objections, and to make those objections we have to say on the other sides. Those Records that they produce, say, we shall all choose, and if that you hold your selves to the letter, Then you are tyed to an impossibility, that is every Citizen none excluded, and then yon will reduce your selves to an absolute impossibility; but say they, we would have a Representative made out of every Ward, and so they with the Mayor and Court of Aldermen, should choose the chief Officers of the City; but this doth no more stand as an objection against the present choice; for if you look to the words of the Record produced, it doth not bear it; for doth the Charter grant you any such Re­presentative? Taking it for granted, the Right is founded upon Charter, and and not upon custom: and I take it to be by Ancient custom before the Charter, or else the Charter would not bear it, that they should choose a Mayor, and not telling them how and when; for this general grant was made because it was their custom; but an objection is made, that in this way which we now choose, all do not choose. But I answer; all do choose, though not by their own votes; you say, when did we give our right to the Livery Men to give vote for us? I answer a Man seeth with his eye, ye we say the Man seeth; a Mans hand moveth, but it is the Man that moveth it; so though every part doth not do every thing in the City, yet the whole doth every thing, and the City doth choose, though every member thereof be not at the choice; so that the question is whether you do believe this was lawfully done by those that do it. Now if Lawfully why then they are the Cities Representatives; as for example for the Parliament, every member thereof cannot give his vote for the passing of all things: for many times, many of them are in the Country when many Acts are past, and yet we say the Parliament doth it; as in election of Parliament Men in the Country, the Writs run, that the People shall choose; and yet we all know that none choose but such as are Free-holders, although there may be many as good men as Free-holders, yet they have no vote: and yet this Act is accounted the Act of all the Commons in England, though they come in but by some parts, and some have no vote in the choice of them; we may not depart from this; for by this we hold all we have; so if this be a lawful choice, why then the Law supposes that where there is a con­tinuance of a lawful possession, there all lawful meanes is supposed to main­tain the possession.

[Page 17] If that all the City should meet together, and set down this Order, if that it be once settled, that for ever hereafter these and these shall chuse; then you make those your Trustees, and it supposeth such an ancient custom was. And truly, Gentlemen, the choice as now it is, is no otherwise; for the Aldermen they are chosen by the Ward, and so are the Common Council.

I will put you a Case, which to my Understanding, is like this. In the 28. year of Edw. the 1st. there was a Statute made, wherein the King grants to the People, that they shall chuse the Sheriffs, or conservators of the Peace; whenas there was nothing more clear, that none but the Freeholders should chuse them. Mark the parallel; and yet this is an Act of Parliament that hath its beginning at that time: and yet that is accounted the choice of the People.

I shall now come to examine that which I told you of, the Presidents which they produced; which I was bold to tell you, that every one of them made against them.

That which is desired is, That every Ward should chuse them Representa­tives, and that those Representatives, together with my Lord Mayor, and Court of Aldermen, should chuse the chief Officers of the City. And in proof to this, I shall appeal to your Memories, and to the words of the Presidents, whether one President that they produce, prove that those 6, 8, or 12 men that were summoned to chuse, were chosen by the Ward. You shall see what a pass you will come to, if you go according to their meaning of those Presi­dents. Says the first President, They were summoned from each Ward. They did not summon themselves. Pray then who summoned them? Why, it was the Mayor that summoned them: The Mayor summoned whom he would; som­times 6, somtimes 8, somtimes 12, at his pleasure; and he summoned som­times the Honest men, somtimes the Rich men, and somtimes the Wise men; and they came and made Election of the Mayor. There is not the least tittle in all the Records that they produce, that they were chosen by the Ward. It is one thing to say, 12 Men that were summoned from such a Ward, came, and another thing to say, 12 Men that were elected by the Ward, came and chose: and yet so it is said, that at that Convention there should be 6, 8, or 12 of the Honestest, Wisest, and Richest men of the Ward chose.

If that there should be such a Summons [...] out, That all the Richest, and all the Wisest of such and such a Ward should come, what a kind of Summons is this! And how shall you judge of these persons? &c.

But it appears the Mayor sent out his Process and summoned them, and so a Law is made, that none should come but those who are thus summoned: as it appears in the Election of Blunn Mayor, and all along no mention made of electing the persons, but summoning them to appear.

Otherwise this must be understood to be the Common Council of the City of London, for they have had several terms; and a man may very well say, when the right is in the Commons to do this, or that, that when it is done by their Trustee, it is done by the Commons. Now the Common Council are often so called, the Commons of this City. Now how will you understand that these 6, 8, or 12 men were only chosen for this end, To chuse the chief Officers? There is nothing less in the 2 Ed. 1. fol. 41. Record: only Master Wildman fancies that the Ward met upon this occasion, and elected them; and then the Mayor should summon them. So that, I say, there could not be stronger Presidents than what they have produced, that make against themselves. I shall now conclude what inconveniences would follow in point of Law, in case they had their desire.

Secondly, You put your selves upon this hazard, that if you part from that which is warranted by Charter, and warranted by the possession of 200 years, and warranted by the Resolution of those 12 Judges, I say, Then you will forfeit your Charter which you have so long enjoyed.

[Page 18] Thirdly, It will be inconvenient to you, in regard of your Liberty in the Ancient Laws of England. No man dwelt in any Ward, but was sworn to ap­pear upon all summons to Courts.

Your Wards have Courts of Inquest: and over them you have the Sheriffs Court; and this Court, which is above that: and no man can live out of those Jurisdictions.

Your Wards in the City are like your Hundred-Courts in the Country. And heretofore, in all Wards, every one was to be summoned, assoon as one was 12 years old, they were to be summoned to give an account of their Life.

In a Ward you know there are many that are not Free-men; and there are many Free-men that have their Habitations abroad. Now if you admit of all to come to choice, why then Foreigners that live in the Ward, shall have more freedom than Free-men that live out of the Ward; and it may so fall out, that in some Wards there may be more Strangers than Free-men. So that in this way of choice by the Ward, oftentimes those that are Citizens may be excluded, and those that are Foreigners may be included.

But you may say, we will exclude those that are not Free-men from choice. But was there ever any such thing done in this World?

The next thing that will follow it will be this, Popularity. Gentlemen, you must remember that I told you that the Ward consisteth of every Inha­bitant thereof: and when you are in such a populous place as this City is, and when that they shall all meet together, what Breaches of Peace and Insurre­ctions may come! I speak not of that which is without president: and such Meetings cannot be, in any wise mans apprehension; but this will follow.

But truly I do not look upon this as the greatest danger; but there is this in it also: The foundation upon which this is grounded, which the Doctrinal part of the Law, in this case is undermined, and the Example of such a thing as this: For after this Example, truly all the Government or Corporations of this Kingdom will receive such shakings, as I blush to mention, when they shall consider the Ancient Government of this City, so backt with Lawful Authority, put into a new way. There is not a more dangerous thing in my Understanding.

Heretofore when the Prer [...]tive did lie upon you, you did shew your selves constant to your own Interest. Truly this is a meer design to betray you; and it will shake you all to pieces, if you look not to it; for it is an Earth-quake under you, and will blow you up.

As for that Principle Mr W. asserted concerning just Subjection, because he left it, lest he should reduce things to an uncertainty, I shall say nothing.

Mr. Hayles. My Lord and Gentlemen, First, It is agreed to by them, that the power of the choice of my Lord Mayor is not meerly by Charter, but by Prescription too; That the Charter is a Confirmation, and not the Origi­nal: For we do say, that there was the same Office of Mayor many Years be­fore K. Iohn: So that your Officers of the City have been time out of mind, and not barely by the Charter. And if it were not so, that would overthrow all your Courts and Franchises.

Secondly, This is agreed to on both sides, that without all question the Common Council shall have a Vote in Election of the Mayor; in this we a­gree: But the Dispute is, whether or no the Livery and Assistants of the Com­panies shall come in with their Voice, or whether there shall be a new device, that the Citizens shall meet and chuse 12 Men of each Ward, as they do in the choice of the Common Council; and so they shall elect the Mayor.

Thirdly, We agree in this, that is, that the way of Election hath been by the Mayor, Aldermen, Common Council, and Livery Men, and hath been used for about 180 years. And they affirm that this was grounded upon an Act of Common Councel.

These three things are agreed unto on both sides.

[Page 19] But now the great heat is against the Livery Men; and the Reasons they give against them are these Three:

First, They argue from point of Inconveniency. That is, because the Mayor and Aldermen do not chuse the Masters and Wardens of the Companies, therefore they should not chuse the Mayor, and Officers of the City.

The Second Reason they give, is in point of right. I shall say no more of that than what hath been said already: You have had a choice of Mayor and Sheriffs, for near 200 years, by the Aldermen, Common Council, and Livery, to argue Election out of convenience, that you have been under 200 years. To alter it upon M. Prise's Opinion, I think you will not, you having found it every way so convenient and profitable to you.

But if so be there be any inconveniency in this, a popular choice will be very much more inconvenient. I pray consider but this one thing: If so be the People should come hereafter, and dispute the validity of this choice you plead for, and say, What do you tell us of Representatives! We will all choose our selves; What imaginary grounds can there be to say, These fears are but imaginary? How will it be, when it will come to be thus? They will say, We will go and chuse a Mayor our selves; there is nothing of Right in this, but meerly Imaginations: if you allow of 10, or 12, they may say, why not 50, or 100, or 200? But for point of Right you have heard what hath been said of these 3 Heads.

But, saith M. Wildman, the foundation of all power is in the People first: If that shall be a ground to let in all the generality of Citizens into an actual choice of Officers, will there not be the same reason for Apprentices, and Fo­reigners, to plead for Votes in your Election? A Foreigner is under the power of the Mayor, and Apprentices live under the command of the Mayor.

The next Reason is, they would endeavour to prove that this course of Ele­ction they plead for, was heretofore usual. I shall say but two words to that.

First, They insist upon the Charter, and that of King Iohn: the words are, They shall Elect a Mayor.

And they produce some Presidents of 31 Edw. 1. and 1 Edw. 2.

I shall repeat one word or two of that my Brother Maynard omitted.

First, You will remember we proved a constant usage of near 200 Years in this way of Election; and their pretence is but for a few certain Years, that the choice was in that way which they desired.

A second thing shews their pittiful mistake. The Common Council are a­greed to have a choice: why if they examine it, they will find the Common Council are men chosen by the Ward. They do find here and there mention made, that the Mayor was chosen by the Aldermen, and about 6, 8, or 12 men summoned. And here they think, that they must needs be Representa­tives chosen by the Ward; whenas in truth, these might very well be the Common Council of the Ward.

I think there is nothing left for me to say to that. What I shall offer, shall be out of Record, and never mention the conveniences nor inconveniences. I shall read the Records unto you, that they produce, and I will take hold of some words of them. The words are these: There shall come out of every Ward Twelve, Eight, or Six men, according to the greatness of the Ward. And according to the Wards of London, the Common Council Men were sent, some more, and some less. And this is very obvious, that where there is such a description of the number for each Ward, there must needs be meant the Common Councils. So that of necessity these words extend to the Common Council Men, or else the Common Council must be excluded.

And again, from a Record Edw. 3. they argue the Commonalty to be the 12 Men, when they are the Liveries. So they mistake in their Application.

We are not to dispute who may alter the custom; but they say, this is your custom, and they say, that is.

[Page 20] We will admit, that that which is by a fundamental Law or Charter, can­not be altered by an Act of Common Council. But if your present choice be not lawful, then all Bargains made since Edw. 1. by your Officers are void, and you have no power to judge; for you are no Common Council.

(M. Wild spoke last for the City Liveries to the same purpose as the other: He had no new Argument, only an observation from 28 Edw. 1.)

M. Prise: I humbly conceive I may answer him to what hath been ob­jected against what I delivered according to Reason. You say that I did de­clare, that just Subjection cannot be but by assent. Under favour, that was not offered by me: But I affirm that just Subjection cannot be but by right of assent.

Secondly, They urge that we differ upon our grounds. The one saith that it is lawful, the other saith not. And the Reason is, because they that grant it have no power to grant it: But for my part I did not assert any such thing.

As concerning the Resolution of the Judges that you so much speak of, in some cases it is considerable, and in some cases little weight is to be given to the [...]r Resolutions. For we all know, in the case of Ship-Mony, they gave in their Resolutions, that it was according to Law. And we also know, that this was afterwards condemned by the Parliament, to be contrary to Law and Illegal.

Secondly, The Resolutions of those very Judges you so much extol, do no way refer to the business.

We offer to grant a select number may lawfully choose; but the Liveries are not so. And the Opinion of the Judges only say, that a select number may choose.

Thirdly, Whereas it is said the Charter is declarative; to that I answer. The Practice succeeding doth declare what the custom then was; and we have no mention of any Masters, or Livery-Men of Companies in Election. And for Exposition of the Charter, if that we tie you to the Letter of it, you say we tie you to an impossibility: But we only plead for the Representatives of Wards, to chuse, not all personally: and therein is no impossibility.

And besides, in 21 Ed. 1. it is expounded what was meant by those words.

We proved the Charter gave it the City, and the City gave it the Common Council, and the Common Council gave it to the Livery; and if they gave it for good, if they find it prejudicial, ye may take it away again.

Whereas they say that by the number of 6, 8, or 10, is doubtless meant the Common Council; How do you know the Common Council-Men did consist of so many in every Ward?

And then for the Exposition of the Ward Moat: Whereas they say some Foreigners may chuse, yea, they may infer as well, Foreigners may be chosen.

To that I answer, many men may be summoned together about business, & some of them may have a right to some things there in hand, & some may not.

We have a President: Once one that was no Freeman was chosen to be a She­riff of London, and because he was no Freeman, therefore the Election was null. So though it be granted, that every particular man of every Ward, be sum­moned to come to the Ward-Moat, yet it doth not follow that he hath a right to all the work to be done in that Court. Again for the Popularity and con­sequences which they so much plead, that will every whit reflect upon this Honourable Court; for every Member of this Honourable Court is chosen by that Party which they call Popular: therefore let them speak of that till to morrow morning all will reflect upon you. That which is now pleaded for is custom.

Thirdly, That this hath been the practice for 180 Years, I do not deny; but I do not grant it. Suppose we do grant it, and yet we bring a Practice for within 12 Years, that was another Practice; whether an intermission of Pra­ctices [Page 21] do not rend that which is called custom, I humbly offer. For my part I did not offer the Argument of conveniency in relation to the present Practice▪ but according to this Principle I argue against the unreasonableness of this Priviledge, that these Gentlemen would have to this Right, and not by Au­thority of this Court. Again they say, that if Election be by the Ward, men will plead thus: Why not 50, or 100, as well as 6, 8, or 12?

Again they urge, that Livery-Men were called the Commonalty; but how aptly, and how fitly, we offer unto you to determine.

MAy it please your Lordship, and this Honourable Court, to give me leave to make some Answers to what the learned Gentlemen on the other side have pleased to object and take exceptions at what was affirmed. I shall not (my Lord) endeavour (as that Gentleman did) captare benevolentiam, to take the Affections of the People, before I begin to debate the matter in question. I shall not tell them that I will not insinuate into their minds any thing but what will stand upon the foundation of Truth; but offer my thoughts, and freely submit to your Judgment: Yet I hope to answer particularly M. Maynard's Exceptions.

He was pleased, first, to take exception at that general Principle that I a­verred, from whence I said might be deduced the Right of all the Wards to chuse the Lord Mayor and Sheriffs by their Representatives: Though the Gentleman might have pleased to remember, I did say I would wave th [...]se Principles of common Right, lest he should say we intended to bring all things to an uncertainty, by unravelling the bottom of Government to its first Prin­ciple; and therefore I insisted upon nothing but what we claim as our writ­ten Right.

The second thing the Gentleman was pleased to except against, was that which he only imagined in his own Brain, misreciting my words, like a man created by his fancy to [...]ry his skill upon: for he supposed I did say, That if we had the Records that are now lost, we doubted not but that they would prove the assertion we maintain: whereas I said, If we had the Records of those times, that are lest, they would shew us what the Rights of People then were. And that I conceive to be without Execption.

The next thing he takes exception against, is, what I said concerning Mag­na Charta; and would make this Court believe that I had thought all that great Charter was unalterable: But the truth is, I did only say, That Magna Charta, the great Charter of England, was unalterable, according to the Prin­ciples of the Gentlemen of the long Robe: I only spoke it upon their bot­tom. I said, If I should believe Sir Edw. Cook in what he said upon the Statute of 42 Edw. 3. I must then say, that an Act of Parliament made contrary to that part of the great Charter that was declarative of the Common Law, was null of it self; for he said that part of it was unalterable. Thus I gave them only their own Authority, and made it no assertion of mine absolutely: Tho, under his favour, I think a man may assert, that what is founded upon the true Common Law of England, as Sir Ed. Cook saith, which is Right Reason, no Au­thority whatsoever ought to alter: (I speak not of circumstances) for if we should aver that, we should aver contradictions in the very terms, and say, that Right Reason of right may be altered from Right Reason, I shall let pass what the Gentleman was pleased to say of the Laws being edge-tools, and of men cutting themselves with them. I believe he met with an Argument for the Peoples Right that was an edge tool in his way, and he was loth to break his shins over it, and therefore he past over the Argument with a grave caution of the sharpness of the Law, that he might divert your thoughts from it: But the Gentleman coming a little nearer to the matter, lays down his Maxim, [Page 22] wh [...]ch is this, That ever since the 15 Ed. 4. these Liveries have had the choice. And then he argues thus: Saith he, The case would be very hard to have your ti­tles of Land, after 190 years possession, to be questioned: And is it not as hard, that the right of the Liveries to Elections should now be questioned? Under the Gentleman's favour, the case is very different. I suppose no man pleads for the like title to a Power or Authority over the People, that men have to their Lands, nor upon the same grounds. If the Titles were alike, it were just to buy and sell Authority, or places of Trust and Government, as we buy and sell Lands or [...]orses in Smithfield; and this our Common Law abhors. If we speak of People that are arrant meer Vassals, like the Slaves in Argier, Authority over them is indeed bought and sold; but I hope we are not to be so esteemed, and yet the Ju [...]ice of those bargains is not clear. But certainly mens titles to Land; and to a power of Government, are, or ought to be of a different nature: And I shall make bold to assert, That 'tis no hard case, that the Right of any num­ber of men claiming a power in or about Government by Succession only, should after 190 Years possession be questioned. Suppose M. Maynard could have made good the Livery Mens claims to the Election of the chief Officers of the City by custom, (but then he must have more than doubled the time of the usage he spake of,) yet I humbly conceive that the Exercise of any power about Government is not made just by continuance of time, unless it were just in the Original. If long usurpation of a Power, in or about Government, could give a right to that Power, all the foundations of just Government were over­turned, and by consequence it were not right or just to take away an usurp­ed Power if the Usurpers be grown old.

Next the Gentleman is pleased before he comes to his material Arguments, to insinuate strange, huge, dreadful, monstruous Consequences that would en­sue in case any man shall deny his Assertions, he is pleaded to say, What strange consequences would ensue, if we should say, for 190 years all the Lord Mayors or Sheriffs of the City of London have been unlawfully chosen? but suppose that which he suggests, that the Mayors have been chosen unlawfully so long, 'tis time then to provide for a lawful choice, and the continuance of the un [...]awful will breed more of M. Maynard's monstruous consequences; and if it be un­lawful, 'tis not forbearing to say so that will amend the Consequences.

But now the Gentleman comes to his Position, and saith, That this Govern­ment that is now is lawful. The Gentleman might have pleased to have spared that; I did not yet assert that the Government that is now is unlawful, yet he may take some answers to his Arguments, or rather Authorities for the legality of it.

The 1st. Ground he builds upon for the lawfulness of this Government is the Opinion of the Judges, which makes a huge Cry. But by the way, the questi­on is not now concerning the Government, but only concerning the choosers or electers of the Governours; the Government may be the same still, though the manner and way of electing these Governours may be altered from what it is at present. Yet to that Opinion of the Judges, which makes the great noise in the Court; Oh (saith he) 'tis the Opinion of all the learn'd Iudges, and then he para­phrases upon the goodness, honesty, learning, and fame of the Judges that were named in the Book produced. It may be those Gentlemen of the Long Robe were Black-Swans; yet the Argument from Authority is none of the strongest, 'Tis not a very good consequence, that the thing is just because good men thought so.

Yet under favour the Opinion of the Judges I take to be not the most cer­tain or unalterable amongst men, nor the most unbyassed by their own Inte­rest, I believe if a man should go to the 12 Judges, he shall scarce find 4 or 3 of the 12 of the same opinion in a dubious case; yet if there were more that a­greed, the late opinion of the Judges in the case of Ship-Mony may inform us how free the Judges opinions are from the Byass of private Interest in such [Page 23] [...] how fit 'tis for us to depend upon them; but however the opinion of the [...]ges produced by Mr. Maynard, I crave leave to affirm to be against him in this Case, at least not for him. I desire it may be read.

First, My Lord, observe, that the Question here resolved is not our Que­stion, the Question here resolved was this, Whether an Election of a Mayor, not made by all the Commonalty in a Corporation, or at least as many as would come, was good in Law? But our present question is only this, Whether the Commonalty of this City ought not to have their Representers to chuse the Lord Mayor? So that we do grant, that an Election not made by all the Commonalty may be good.

Now, my Lord, observe the Judges Resolution of the Question; they re­solve [Page 24] that an Election made by the Mayor and Aldermen, and a certain chosen number of the choice of the Commonalty, is good in Law. We concur with the Judges, keeping close to their words▪ A certain chosen number of the Commonalty; & to those other words of theirs, viz. Such ancient usual Elections; that is to say, such ancient Elections by the chosen number of the Commonalty are good in Law. Now we deny that the present Election of the the Ld. Mayor by the Livery-Men is the most ancient usual way of Electing, and that the Livery-Men are a chosen number of the Commonalty, I mean, chosen according to any right of choice, that right being in the Commonalty.

But, my Lord, 'tis very observable in this Opinion of the Judges, upon what Ground they judged such Elections valid in Law; the ground is this, For 'tis to be imagined or supposed, say they, that such ancient and continu­ed Elections did not begin without common assent. Hence 'tis evident, that the Judges imagined that all the Citizens had the right of choice in them, and that they had agreed that a chosen number of themselves should choose in their stead; So that the Judges in their Opinion took the chosen number of the chief of the Commonalty, that did elect the chief Officers to be the Represent [...]rs of the whole Commonalty.

Now if your Lordship please to remember we produced an Act of the Common Hall of London, made long before the Liveries made any claim to be the choosers, and at an Assembly, when the Guild Hall was filled with the Commonalty, wherein they did assent, that there should be a certain number of every Ward proportionably that should be the Electers of the Mayor and Sheriffs; so that the way we propose, of several men of every Ward, representing the Wards to elect, is founded upon a common Assent. They produce no one Act of a common Hall, that should make it appear, that it was ever assented unto by the Commonalty, that the Livery-Men of the Mysteries should be the choosers of the Mayor.

Now my Lord I humbly offer it to this Honourable Court, whether this opinion of the Judges about Elections produced by Mr Maynard as the pil­lar whereon they build the lawfulness of the Liveries Elections, do not ra­ther speak them to be unlawful, in my humble opinion, this that those learn­ed Gentlemen flourished like Goliah's Sword against us, [...]ays themselves.

After Mr. Maynard had produced the Authority of the Judges as he sup­posed for his Cl [...]ents case, he argues from consequences, saith he, If this pre­sent way of Electing by the Liveries were not lawful, mark the consequences, your Charter, saith he, is forfeited; this I confess is a big bellied word; but how will this assertion agree with what M. Maynard, M. Hales, and M. Wilde all affirmed, that the Charters of the City did not originally give the City those Liberties that are mentioned in the Charter, but that the Charters were only D [...]clarative of Cities Rights, shewing what their Rights were before the Charters? Now if the Charters give not the City their Rights, certainly you cannot forfeit your Charters, unless the learned Gentlemen shall please to say. You shall forfeit the Declaration of your Rights, (for the Charters are no more by their own confession) and if your forfeiture be no more you may enjoy your Liberties still, notwithstanding such a forfeiture as they pretend. But suppose a man should say what I did not yet say, that the present way of Electing the Mayor is unlawful, is it any more than this, that the Citizens have suffered their Right to be taken from them for many Years, & others to enjoy it unlawfully, and how will this consequence be deduced from thence, that the City hath forfeited their Rights; I confess I understand not by the Law that a Body politick or Corporation, as such, is under harder Laws in our Nation, than the Members of the Common-Wealth severally; now no man in England can forfeit his Rights without a legal conviction of some crime for which the Law censures him to forfeit his Rights; & I know no reason why [Page 25] the City should have such hard measure, that in case the free men have suffered the Companies to usurp their right, that therefore all the Ci­ties rights should be forfeited.

Mr. Maynards next argument for the Liveries Elections, was this, That 'tis founded upon a constant usage, time out of mind, so that, saith he, the City now prescribes unto this way of Electing; and yet the Gentleman was pleased afterwards to confess, that to make a title by prescription there must be a constant usage since Rich. the firsts time, and they only produce an Act of a Common Councel for the Liveries Electing about 174 years since, and will suppose that that act of Common Councel was in confirmation of what was the custome before, whereas they produce no one footstep of a Record before that time to prove that it was the u­sage to chuse by Livery-men, but on the contrary it hath appeared that the Election hath been 400 years since by a select number out of the several Wards, which cannot be any way supposed to be meant of Li­very-men, they not coming as men from several Wards, but as men from several Companies.

The next thing the Gentleman said, was this, that he hoped we would grant that we did both depart from the Charter it self; for, saith he, if we found the way of Electing upon the Charter, the Charter run­ning to the Citizens indefinitely, it must be understood of all the Citi­zens and Barons; and, saith he, you grant, it is impossible they should altogether make the Election, so we both depart from it. Under his Favour I must be bold to deny it; We depart not from the Charter, for we say, that the Charter giving a right of choyce to all the Citizens, they may proceed in their Elections, either by themselves personally, or their Deputies; and they finding it inconvenient to meet Personally, may depute others to make their Elections; and an Election so made, is truly said to be made by the Citizens. So that in case that way of E­lecting were admitted which the Pertitioners propose, it were directly a­greeable to the Charter; for, then indeed the Citizens should chuse, be­cause they chuse every one of them by their Deputies, as all the Peo­ple of England make Laws in Parliament, because every mans Deputy is, or ought to be, there in Parliament.

Next Mr. Maynard answers an Objection; If, saith he, it be objected, that in the way of Election that is by the Livery men, all are not re­presented; saith he, it is true, if you take it in some sence; but, saith he, if you take it in the sence of the Law, therein they are represented, and it is the City makes these Elections; Saith he, the Law saith so; as, saith he, in case a mans hand moves, it is the man that moves, or his eye sees a Colour, it is the man that sees. I hope the Gentleman will please to confess a vast difference between a Body natural, and a Body politique; Because he may truly say, if a mans hand moves, all the man moves, therefore will he say that what a few, or one member of the City doth, is the Cities action? If so, if one in the City com­mit Treason, all the City are Traytors. I believe, Gentlemen, you would be loath to admit of such a Law.

But to confirm this assertion, the Gentleman produced something out of that which he called Articuli super Chartas, where he saith, the King granted to the People to chuse Sheriffs, and yet the People did not chuse them all in general, it was the Freeholders chose them. Mr. Maynard, If he pleaseth, could have told when the People in general were re­strained [Page 26] from electing Parliament-men, and other the Sheriffs also, and upon what pretence it was put upon Freeholders onely, and how it ser­ved the Kings ends to procure that Statute of Restriction; if I forget not the time, it was in the 8 of Henry 6. Chap. 7. But however Mr. May­nard should have proved this to be just, before he can prove the other to be just by this.

Now the Gentleman is pleased to come to examine the presidents we produced, and saith, he will turn our own swords into our own bowels; and endeavors to do it thus;

First, saith he, you prove that the Wards did send several Persons to these Elections 400 years since, but you prove not that the Wards chose these Persons; you read indeed Records that said these Persons were summoned to the Election, but who summoned them? certainly the Mayor summoned them, and he summoned whom he would. I verily believe this would be a very bitter Pill for the Citizens to digest, to [...]ay the Lord Mayor should summon when he pleased, and whom he pleased, out of every Ward to come to the Election, the Government would be turned topsie turvy, if that were admitted▪ then he that should be once Lord Mayor, might be for ever Lord Mayor, if he could make but a friend or two in every Ward, and if this be imagined to have been the custom of the City, I wonder who summoned those that chose the first Mayor.

But the Gentleman is pleased to make his Argument thus; saith he, it is not named in the Record you produce, that these men were Elected by the Wards, though summoned from the Wards; therefore saith he, they were not elected. It is a new kind of logick that must make this argument good; 'Tis not recited in the Record that they were chosen, therefore they were not chosen; I might as well say that in your summon to a Common Coun [...]el, your being chosen by the Wards is not recited, therefore you Gentlemen of this Court were not chosen. I confess I am not very well verst in the Acts that are in this Court, but I think there is no act of the Court recorded, wherein it is said, There were present the Common Councel that were chosen by such Wards, shall I therefore conclude that they were not chosen by the Wards? I must first learn a new Lo­gick, before I shall [...]are so to conclude.

The second thing he objected against the presidents, was this, Those Twelve men of the Wards that are said to elect the Mayor, saith he, must needs be understood to be Common Councel men; Truly, besides the Answer of Mr. Price, that it was not probable, because the number of Common Councel would then have been far greater, than now it is, when the City was far less▪ to let that pass, I only answer thus, that if they please to look in 22 of Henry the sixth, it is in Lib. K. fol. 214. It is said in the writ that came down from the King to prevent distur­bances at that Election of the Mayor, that none should be there but they that have an interest to be there, those that were in Common-Councel, And the more discreet and able men of the Wards, so that besides the Com­mon-Councel, there were others that were wise and able discreet men in the Wards that were to come to the Elections, which probably were those that were chosen by the Wards. If your Honour please the Re­cord may be read. The former answer serves to Mr. Mayards Observa­tion of the Election of the Parliament Men for the City, wherein it is said only six of a ward were called to be there, but not chosen; I pro­pose [Page 27] it to him, whether it is probable that the Lord Mayor had power to pick six men out of a Ward to chuse the Parliament men for the Ci­ty, or whether this be a good Argument, because they are said to be summoned by the Lord Mayor, and not said to be elected, therefore they were not elected. I hope the Gentlemen of the Long-Robe have better arguments.

The last thing that Mr. Manard avers, is, the inconveniencies in point of Law that would ensue upon that which we pray for, which he calls an Innovation. But I humbly crave leave to aver, unless I could see his confutation, that it is an antient Right of the Citizens of this City. Those inconveniencies in point of Law, he saith, are these, the hazard of forfeiting of Charters. I conceive that to be answered before, That if a City should depart from a just way, if their Charter were but the confirmation of their right before, there is no forfeiting of that Char­ter, for the Charter gives them not that Right.

The next Argument he draws from every mans living in a Court- [...]eet, and that at twelve years old he ought to meet there, and he saith from thence, if there should be Representers of the Wards chosen, to make the choyce, it might be that those that are no Citizens might meer to chuse a Mayor, and Citizens that live without should not chuse. I think under his favour the common practice will answer to that, when the Wards meet for the choyce of Aldermen, or Common-Councel Men, none but Citi­zens have their Votes in it, there is no danger that those that are Aliens should either be chosen or choosers.

His next Argument against this Petition is this, saith Mr. Maynard, It will tend to Popularity, if this should be admitted, that the Wards should choose; and I leave it, saith he, to the Court to judg what the Consequent of that would be; all mens Educations, saith he, are not such as make them fit for Government, or fit to choose Governors. Truly if it please the honourable Court but to consider who they are that are now the Electors, this Arrow of the Gentle­mans returns upon himself: I could say more of it, if I should not be thought to reflect, because I have a reverend respect to all kind of Trades; but if I should speak of all the several Companies, the Bricklayers, Bowyers, Fletch­ers, Turners, Coopers, Tallow-Chandlers, &c. If I should speak of the Education of most of the Livery-Men of forty Companies of the City, and compute their number, and tell you upon what terms most are admitted to be of the Liveries, that is, for a small sum of Money; I conceive the Court would quickly judge which way of Election tends most to Popula­rity, as he calls it, and who proposeth most men that are unfit for Govern­ment to choose the Lord Mayor and Sheriffs. Will any man suppose that the Educations of all the Handicraft men of the Liveries render them so able and discreet, that they are fit for Government? I submit it to the Court.

As for the great Word Mr. Maynard was pleased to add about the ill consequents of this change that would be to other Corporations, say­ing, That this is an Earthquake comes under them. I shall conceive his O­ratory in this to be of the Earthquakes nature, a swelling vapor, unless he will be pleased to shew me how the Liberty of the City, or any one Citizen, is undermined by what is proposed, only I must observe to the Court, that where Arguments are wanting, their room is common­ly supplied with words and pretences of huge strange consequences, that will ensue, if their desires be crossed; But the arguments from a con­sequence, [Page 28] I believe they well know their strength is not of the first degree; but however to suppose an ill consequence may ensue upon a City, or company of persons exercising their right, and thence to con­clude they must not enjoy it, is a way of arguing that I understand not.

I confess Mr. Hales is pleased to deal very ingenuously in laying down those principles wherein we agreed, which was, That the Liberties of the City were by prescription, and that the Charters were but Declara­tions of what our Liberties were, and that the Common-Councel-Men ought to have a Vote in their Elections; But I said not they ought, but that they might have their Votes if they were chosen to that purpose: But he was pleased to say that the Lord Mayor, Aldermen, and Common-Counsel, were a kind of a Representative of the City, and therefore he would thence aver, that there is no inconvenience to the City, seeing they have such a Representative. I shall answer Mr. Hales thus, If a man should say the Parliament represent the Common-Wealth, and seeing we have a Representative, what matter if that 200. or 300. men more went into the Parliament and voted with them, the people of England surely would not think themselves well dealt withal, nor think those Acts so pas­sed to be valid. Mr. Hales is pleased also to pursue Mr. Maynards mode of imagining strange kind of consequences that may ensue upon this, and saith he, How if the People will say, when you brought it to the Repre­sentatives, we will not be bound to Representatives, but we will come and chuse personally; what then (saith he) would be the consequence of this? Truly if Mr. Hales will suppose that the people will not be bound by any Government, not by Acts of Parliament, he may fill his fancy with bad consequences: and why may it not be supposed as well, that all the peo­ple in England should say, we will go and make Laws our selves in Parli­ament, as well as that the people should not be willing to be bound in the Wards to chuse the Lord Mayor and Sheriffs by their Representatives? I shall let pass also, what Mr. Hales was pleased to urge concerning that prin­ciple of a just subjection of Peoples to Governours, to be founded up­on an Assent, because he was pleased to confess very ingenuously, that I wa­ved those Arguments that might reduce Government to an uncertainty, or to the first principles of general Common-Right. But saith Mr. Hales, if that principle be allowed amongst a free People, that subjection to their Governours ought to be by meer assent, sath he, we must consider there is a Personal and a Virtual assent, and it shall be conceived to be a Virtual consent, where there hath been an usage time out of mind for the People to be subject to any form of Government. Of which nature he endeavoured to prove the way of electing the Lord Mayor and Sheriffs by the Livery-Men of the several Misteries; whereas if Mr. Hales please to remember, they do all aver the usage of this way of Electing, but to have been for 174. years that they can prove. As for any suppositions that it was before, I think there is enough answered to that, there being no ancient Records that men­tion the choise to have been by the Livery-Men, who come not as sent from Wards. And though Mr. Hales is pleased to ballance the Records produced on one hand and on the other, and saith thus, that they produce for one hundred seventy four years, to shew that this hath been the way of elect­ing which now is; but saith he, those Records produced to prove another way of Electing, is but a short time. If he please to remember there is no foot-step or mention made of any Livery-Man, or of any of the Mysteries [Page 29] having a Power to elect, until that 15. of Edw. 4. and we find from Edward the first, about 200 yeers before, that there were twelve men in the Wards that were Electors, which we may well think to be the Representors of those Wards, and chosen by them for that purpose; and no foot-steps of the discontinuance of it, from that time produced; but we may well say that all the Records that mention the Communaltyes choise, are to be interpre­ted by the former Records, untill that Record comes wherein mention is made of Livery-men, there being no mention made of them formerly, un­der that, or any other name as such.

That which he was pleased to alledge, that it was the Common-Counsel-men that were those twelve men, is answered before in Mr. Maynards, and therefore I pass it over.

But Mr. Hales seems to think it hard measure that we should exclude the Livery, because there is no mention made of them. I shall only answer, that it is as hard for them to say, because the Common-Counsel men are not mentioned to joyn with the 12 of the Wards, therefore they were exclu­ded. But saith Mr. Hales, it is the usage that shall explain what is meant by the Communalty, and what is meant by those more able and discreet men in the City that are chosen; we desire but to stand to the explana­tion of the Record; we produced an ancient Record that had these words, viz. The whole Communalty; that is to say, the more able and discreet men of the Ward; we would fain have him produce a Record where it is said, The whole Communalty, that is to say, the Livery-Men, at least any time before that of Edward the fourth.

As to the Arguments from the consequences, if this Government were not right, then saith Mr. Hales, all the Purchases you have made since that time you altered the way of Elections, is null.

I must humbly crave leave not to submit to his Judgment in that, till he give me better reasons; for I suppose it is grounded upon that of for­feiting a Charter, which was answered before; for though the Body cor­porate have not had their Officers rightly Elected, yet the Body is not thereby dissolved, and therefore their purchase may be good, and without fear of forfeiture.

The Arguments Mr. Wild was pleased to use, were but to inforce what his Brethren had said, that by the 12 Electors of the Wards must be meant the Common-Counsel, because (saith he) no mention is made of the Com­mon-Counsel; but it hath been proved that in an election mention is made of the Common-Councel, and of other honest men of the City, before any mention is made of Livery-men; and though no mention were made of the Common-Counsel, yet to say they were not mentioned, there­fore they were not called to that Assembly when the Election was made, is no good consequence; upon the grounds before asserted, Mr. Wilds objection that we would endeavour to introduce a novelty, falls to the ground; for we conceive the way of twelve men out of the Wards, to be far more antient than the way that is now practised. And as for Mr. Wilds Arguments concerning the danger that would ensue upon the multitude coming to Elections, upon the same ground he may say; the Wards must not chuse their Aldermen nor Common-Councel Men, if the Citizens should be deprived of their right upon that ground, that it is popularity, or they may be divided, and fall to blows; upon the same grounds they may take away the liberty of chusing Common-Councel Men and Aldermen, and all their common Freedoms; and if these fears [Page 30] shall affright men from the claim of their right, they may be told next that the Sky may fall, and therefore they must not go abroad.

As for the last objection of Mr. Wilds, that in this way of popularity 'tis possible a choice may be made of unfit men. I shall only offer this to the consideration of the Court, Whether it is more probable that a whole Ward meeting together to chuse a small number of men that should represent them in the electing their Superiour Officers, should chuse more unfit men for that Election, then a company it may be of Coopers, Tallow-Chandlers, or other manuel occupations should admit to the Livery, who admit all that will give so much money to be of the Livery; who are the likeliest men to send fittest men for the choyce, I humbly refer to the Honourable Court, though it is strange to me to hear that the fear of popularity, or of giving way so much to the Li­berty of the people, is so much insisted on, now we are come into the way of a common Wealth; it is a little dissonant to the present constitu­tion.

Now I shall humbly submit to the Court, what hath been offered in answer to that which the Gentlemen on the other-side have objected; and humbly crave leave to be still of opinion, that I see nothing of strength ob­jected against our assertion, viz. That the liberty of Electing is the Right of the Citizens of London in general, and so declared by the first Charter we find upon Record; And if it be the liberty of the Citizens in general to chuse, every man must chuse either by himself or deputy, and they all agree it is impossible they should all chuse Personally; why they should not then chuse by their representatives, I humbly leave to the judgment of this Honourable Court.

WE have taken up a great deal of time and patience, I will repeat nothing of what hath been said, only I think Mr. Wildman fears nothing of a popularity; for the matter, the measure is before you, how long one, how long another, we differ upon the Records recited, we think they are for us, they think the contrary; it lies in your judg­ments, and the measure of time how much it is; I am sure they cited no presidents before Edward the first's time, and none since Edward the third's time; somwhat was spoken of Henry the sixth; I will not enter into a particular recapitulation, but there hath been nothing of that I apprehend we have said, but hath been answered only by the by; and that which is the strength of that we rely upon, hath been let go, and some generals taken hold of only; I shall give you but this observati­on, that it is like enough the Mayor and Sheriffs, the Chamberlain who is the keeper of all the wealth of the City, and the great trust of the City reposed in them, will much depend upon this string; Two Gentle­men have here argued; and observe it, the one grants what the other will not; we all agree, and how they will agree when a great many comes together. I leave it to you to judge.

Onely this, Gentlemen, some two or three little mistakes there have been: I think not that they are wilful.

[Page 31] First of all, Whereas they would offer it to you, that the Words of all the Commonalty, should be intended of the twelve men of the Wards, that is mistaken: for, Gentlemen, it was in a case of a choice of Al­dermen, which is made by the Wards, and is not made by twelve men, as the very Record it self speaks; and therefore that is misapplied. It is in case of a choice of Aldermen, which is made by the Wards in their bulks; and not in twelve men.

And then next of all, for the continual Usage, they mistake in that, For that Usage, they give an instance in the third of King Edward the first, till some later time in Edward the second, and in the twentyeth of Edward the third: But from the twentyeth of Edward the third, not any instance at all of Electing men out of Wards. That which they say now they are driven to it, now they would indeed exclude the Com­mon-Councel from having any voice of right. We say, You do well. If the Common-Councel have no right, then may the Livery-Men have no right neither; for their Rights will stand and fall upon the same bot­tom. We say only this: For that Record of Henry the sixth's time, it's nothing at all to the purpose; for that is this, That all those that were in the Common-Councel, together with other persons that were called in, either from the Wards or City, be it which it will: there is no man doubts but most of the Liveries they live in the Wards; and therefore it is not an Argument that they were not persons that were of the Wards. And whereas we have no footsteps of the Livery in Record, it is true, the stiling of the Record is not of the Liveries; your Electi­ons are not said to be by the Liveries at this day, but by the Commonalty, as it was neer two hundred years ago; and yet in truth done by the Com­mon Councel and Liveries, so that all is one.

My Lord, I shall only desire Mr. Latham may read this Record in the twentyeth of Edward the third; it is that whereupon I built my Argu­ment; that is, Thus it was agreed by all the commonalty of the City, that the Lord Mayor for the time being shall be chosen by twelve, eight, or six out of every Ward, according to the greatness or bigness of the Ward. That must of necessity be the Common-Councel.

One thing I forgot in that, That your Livery-Men come not by number; Common-Councel-Men they are Summoned by a certain num­ber

This is that we say, and here we leave it. We say, That that Reason that these Gentlemen do use upon their presidents in Edward the first's time, and Edward the second's time, is to exclude the Common Coun­cel, as well as the Common-Hall; and we say, that upon the same rea­sons they may exclude the one as well as the other. There is no mention made of the Common-Councel to have a voice in any of the Elections in Records, and therefore they would exclude them. We say, They do the Record and themselves wrong; for though it's Truth, there is men­tion made of the Mayor, Aldermen, and some others, it is not ex­clusive; for some others there might be, and yet notwithstanding it is a­greed that the Common-Councel may make an election, and vote, and are not excluded; and therefore the Livery-Men may do the same. And [Page 32] when as it hath gone on so long, and not been contradicted, we hope you will continue on that continued course.

My Lord, We still insist upon it, that those presidents produced, being for twelve men out of every Ward, cannot probably be conceived to be the Common-Councel; for how can we conceive that the Common-Councel, at that time when the City was not a fourth part of what it is, should consist of as many or more then it doth now? But by the Re­cord now read, it appears, that it was agreed that so many men of every Ward should come to the Election; and then further agreed, that every Alderman of every Ward should cause such a number, a smaller num­ber than the other, to be chosen, to be of the Common-Councel; and 'tis not said that they should be the Electors. The Record speaks of two things agreed unto: First, that one number of men should be Elected for the Wards; Secondly, that another number of men should be chosen by the Wards, to consult, as the Record saith, de arduis negotiis, to consult about the hard matters that concerned the City.

But suppose I should grant the learned Gentlemen of the other side that which they so much contend for, viz. That the twelve men of the Wards, mentioned in the Records to be the Electors of the Mayor, were the Common-Councel; and that, as Mr. Wild would have it, the twelve, eight, or six of every Ward, that the Common-Hall agreed in the 20 of Edward 3d. should be the chusers of the Mayor, that those were the Com­mon-Councel; suppose this, What advantage to their cause will the Gentlemen gain from thence? The conclusion from thence would be▪ That the Common-Councel were the only Electors of the Mayor; and what becomes of the Compa [...]es Liveries, for whose power in electing they plead? And if it were the Common-Councel that were the elec­tors, it doth establish our foundation, which is this, That all those who are chosen by the Wards, and do represent them, ought to chuse the chief Officers of the City. And if the Wards would trust the Com­mon-Councel onely to be the chusers now, and declare it in the choice of them, we should not oppose it.

Gentlemen, I forget one word, that M. Wildman was pleased to de­liver for Law, that you may believe, if you think good, That there is no forfeiture of Charters. Now what the Parliament may do under favour, is no question; but no doubt but there is forfeiture of Charters. And he saith, Twelve Iudges there are, and but few of them agree. You must be sure, That it is the Judges part to judge your actions at last.