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to in that council by virtue of any bye-law of maintain, sustain with their bodies, their goods, that town, or ever shewed any such bye-law, and their chattels to their power, and them not though their right of sitting and voting there let neither for love nor dread, without regard of hath been denied in the council by members any man, but maintain the laws, good customs, thereof.
and franchises of that town: and divers bur. The aldermen indeed in king James's time gesses of that town being informed, about the began, though they bad no right so to do, to beginning of Easter-term last, that the mayor take upon them to be part of the council, and and some of the aldermen of ihat town had a to intermeddle in the town's concerns, and to design to surrender the charters of that corpoencroach so far upon the burgesses, without ration, it was scarce credited by any of the their consent, as to pretend to have a right in burgesses, that the mayor or almost any of the the setting and disposing of the corporation- aldermen would consent to do a thing so dilands, and of the bridge-lands, and school- rectly contrary to their burgess-oath. Yet lands : But the burgesses were so far from divers burgesses of the said town considering consenting to their having of any such power they had taken the said oath for preserving the or authority, that they in the year 1605, by rights of the town, thought it but convenient, their petition to the lords of the council-table, for the prevention of the ill consequences which complained of the encroachments of the alder- they well knew must befall that town if their men, and prayed redress. Upon which the charters should be delivered up, and a new Jords of the council referred the examina- charter taken without the privity, consent, or tion of the matters in controversy to the judges hearing of the burgesses of that town, to order of assize that went that circuit, to the end they four caveats to be entered : and accordingly in might be certified and better informed by the Easter-term ordered two to be entered at the said justices of such course, as upon good ad- lord chancellor's, and two at the attorney-gevice and deliberation they should find in their peral's. One of which caveats in each place judgments agreeable to law, and meet to be set was against passing any new charter to the down and ordered in that behalf
. Who accord- town of Nottingham without the privity, coningly entered into consideration of the complaints sent, cr hearing of the burgesses of that town; on both sides, and advised with the rest of the the other against the accepting of any surjudges touching the charter granted to that reader of any charter of that town, without the corporation, and all other matters meet to be like privity, consent, and bearing. Which said considered of concerning the matters in con- caveats were entered accordingly. troversy ; and returned certificates of their And so the matter rested till the 25th of opinions of such order of agreement as they July last : but upon that day the mayor called thought fit and convenient to be observed and a council without giving notice what the buestablished, according to law and justice, for the siness would be, unless it was to those of his public good and government of the said town. own party and confederacy. But that he had Wherefore the mayor and the parties indiffer- thoughts of surrendering when he came to the ently sent up to solicit a peaceful end of those ball, will be pretty manifest from what he did controversies, having taken knowledge, did after the question was put to the vote, and the consent thereto ; and thereupon, by consent of poll taken: there appeared at the ball the the said parties, it was, amongst other things, mayor and five aldermen, and two and twenty ordered, That there should be a council in that of the council, and Mr. William Toplady (who town of 24 persons only, out of which the al- the last year, by order of Mr. Gervas Rippon, the dermen for the time being should always be then mayor, was sworn in as an alderman,though excepted ; and that the said council, with the Mr. Sherwin, who stood in competition with Mr. mayor or the greater part of them being at Toplady, had near twice as many votes ; upon such assembly, without any other of the said which Mr. Sherwin brought his Mandamus, corporation, should set and let the town -lands, and the cause is yet undecided in the court of bridge-lands, and school-lands, taking unto King's-bench). After some business in the them the chamberlains, bridge-masters, and hall was dispatched the mayor caused a question school-wardens respectively, as their places to be put for surrendering of the charters of for the lands within their several offices should that town; and though it was declared by some require, as by the said order and agreement, of the council, That the aldermen had no rigbt which the burgesses have ready to produce to vote therein, yet the mayor caused a poll to when occasion shall require, will plainly ap- be taken, and admitted thein and Mr. Toplady pear. So that now all pretence of the alder- as voters, save only that Mr. Alderman Edge men being of the couneil, or having any thing suspended his vote, and gave it neither way. to do with the corporation-lands, the school. The rest voted as followeth, viz. lands, or the bridge-lands, was adjudged against For surrendering the Charter. both by the judges and the lords of the privy Gervas Wild, mayor, Christopher Hall, alcouncil
, and accordingly was wbolly laid aside, derman, John Parker, alderman, Gervas Riptill of late.
pon, alderman, William Toplady, alderman, The case standing thus, and the mayor, al- de facto. William Mabbot, Edward Mabbot, dermen, and burgesses of that corporation be- William Petty, Robert Wortley, Hugh Waling by their burgess-oath particularly obliged ker, William Woolhouse, John Whitby, Tho. that the franchises of the said town they will mas Lee, John Unwin. VOL, X,
Against surrendering the Charter. a surrender, by the right honourable the earl of William Greaves, alderman, John Greaves, Hallifax and sir Leoline Jenkins. Samuel Richards, coroners, Robert Green, After the said vote touching the intended sberiff, Huntingdon Eyre, Roger Ryley, Tho- surrender was over, many of the burgesses of mas Walker, Richard Smith, Francis Salinon, Nottingham, considering their oath, and that Ralph Bendet, John Sherwin, Samuel Smith, there were many customs and privileges in rem Thomas Trig, Williain Smith.
ference to trade, which the burgesses of the
corporation held only by custom and prescripSo that if the aldermen should be admitted tion; and that as some of the lands which that to have a right to vote in the council, yet here corporation held was by grant from some of was no majority for the surrender. But on the his majesty's royal predecessors, so most of contrary, the aldermen having no colour of their town-lands, (which are of great annual right, either by prescription, or charter, or value) were given by private persons; thougbt otherwise, for the reasons aforesaid, to be of the fit to ask advice of counsel in several points. council; it is plain, there was only the mayor The first question proposed to counsel was, and pine of the council for the surrender, and Whether if the charters were surrendered, and thirteen of the council against it; and conse- a new one taken, that new grant would not prequently that the greater part of the council serve the lands to the corporation. To which voted against the surrender. Nor can it be counsel replied, That if the charters of any imagined that the council of that corporation body corporate were lawfully surrendered, then (being neither settled by prescription, nor vest- the corporation that held by such charters was ed in by charter, but only brought in by con- dissolved; and that if they had any lands which sent and choice of all the burgesses, only for had been given to that corporation, the heirs the better managery of the revenues of the cor- of those that gave those lands would, as soon as poration, and dispatch of some other ordinary such surrender was completed, be entitled to affairs, and not intrusted with many rights of the lands, and recover the same. And they that town,) can pretend to any power of sur. said, Those lands which had been given to such rendering the charters and liberties of that corporation by any of his majesty's predecestown, more than any small number of bur- sors, his majesty might, if he so pleased, grant yesses. So that how this surrender of fourteen them again to the corporation ; but no new inen against the vote of the greater number of charter of his could, as they conceived, give the council, and will of almost all the burgesses, the corporation any title to those lands which should be good in law, is not yet well understood. had been given by private persons, or enable And if the putting of the town-seal to an instru- the corporation to keep them from the heirs ment without the consent of the body corpo. of those that gave them, in case such surrenrate, should be said to be sufficient in law to der should be. And so, they say, it was regive away the lands and rights of any body solved by the judges when the monasteries were corporate, then any thief that can but steal the surrendered, or dissolved; and that therefore corporation-seal, will have it in his power, a special act of parliament was advised to be though he be no member of the corporation, to made, and accordingly was made, to vest those give up the lands and liberties thereof; which lands in the king, there being no other way to indeed would be a strange piece of law and jus- binder them from going to the heirs of those tice to be owned in any nation that pretends that gave them, when by surrender they had to sense and honesty. Yet Mr. Mayor, all this dissolved those corporations. Rotwithstanding, did, as soon as the said vote The second question proposed was, Whether, was over, pull out of his pocket an instrument if the mayor and burgesses of a corporation in writing, purporting a surrender of their claim any right of common by custom or precharters, and caused the town-seal to be affixed scription upon other men's lands, as is in the thereto without any further vote. The draught case of Statford, Derby, Coventry, and many of the instrument, as it is commonly said, was other corporations, they can surrender their first made at London, and thence transmitted charters, and yet, by any new charter to be ob. to an honourable person in Nottinghamshire, tained from his majesty, or by any means, and by his order conveyed to Mr. Mayor. But preserve their right of common. To which it this report, if it were not for one thing, which was answered, That if the mayors and burgesses it is believed will be proved if there be occasion, of any corporation claim such common, and might seem not well grounded, because, as it afterwards make such surrender, and so disafterwards will appear, this surrender was not solve the body corporate, their prescription for thought sufficient, and so another was sealed; common is destroyed ; and though bis majesty which yet one of the aldermen would have to should please to incorporate them anew, yet be the very same, word for word, with that their title to common will, as they conceive, be which was first sent up sealed to London ; as if totally lost. twice sealing would make that effectual which The third question was, Whether the town was not so by being once sealed. But it is of Nottingham, being one of the ancientest corlikely he had not beard what is commonly re- porations of England, and free of tolls in most ported, and perhaps will be proved when time places, should have the same privilege if they serves, that the first instrument for surrender- surrendered their charters. To which it was ing that was sealed, was drawn 80 as to make answered, That if the town of Nottingham surrendered their charters, and so dissolved ter, will certainly be lost, if you make such their corporation, then in all other places that surrender as you bave agreed to. We had formerly tolls granted them, and kept their do therefore hereby declare our dissent old charters, they should bave toll of Notting from those your proceedings; and that ham men, and all such corporations as shall so ' we neither do nor shall consent, or have surrender, notwithstanding any new charter, c insented, that any surrender of any charter, that can be granted them.
• liberty, franchise, or privilege of the corpora. The last question propounded was, Whether tion of Nottingham should be marle either by if the inayor, or any other members of a cor- 'you, or any members of this corporation, or poration do, without the consent of the major other person or persons whatsoever ; and that part of the body corporate, occasion the sur- we will by all lawful ways and means oppose render of the charters of that corporation, the and hinder the surrendering or vacating of particular persons that received damage by any of the charters, rights, liberties, or prithat surrender, may not have an action at law vileges of this corporation, and that in case for recovery of their dan ages? To which it you occasion the surrender of any of the charwas answered, that it was no question but that ters, rights, liberties, or privileges of this corevery particular person that should be any ways 'poration, we shall expect from you such sa. damnified by such surrender, might by action tisfaction as the law will allow us.' at common law recover all his damages of The burgesses were also advised to order, those persons that occasioned the surrender. and accordingly did order caveats in the names Yet it was thought adviseable, as the most of some particular burgesses, on behalf of them. proper way for preventing the surrendering of selves and most of the burgesses of the town, the charters, and of those inconveniences and to be entered at the lord chancellor's, the lord suits which might be occasioned thereby, or by privy-seal's and in the signet-office, against the taking of a new charter if obtained by the surrendering of any of the charters of that mayor and a few of the burgesses without pri- town without the privity, consent, and hearing vity, consent, or hearing of the rest, that the ma- of the said burgesses, and against passing of jor part of the burgesses should present Mr. any new charter to that town without like privity, Mayor with their sense of his proceedings, and consent, and hearing. And the burgesses have declare their dissent from any surrender. And ac- had an account from their agent at London, cordingly a writing was drawn, and signed by that he had entered such caveats at the lord betwixt three and four hundred of the burgesses, chancellor's and in the offices of the lord Couand then a fair copy made and examined with way and sir Leoline Jenkyns, it being com. the original, and so with all the burgesses monly reported that the lord privy-seal had names to it that had subscribed, was by several delivered up the privy-seal to the said sir Leoof the burgesses, and in presence of sereral line. gentlemen of quality that were no burgesses, The burgesses were further advised to peti. presented to the mayor upon the fourth day of tion the lord chancellor to be heard before any August, as the sense of most of the burgesses surrender of their charters should be accepted, of that town. The writing so presented was or any new charter to that town should pass as followeth, viz.
the broad-seal ; and accordingly a Petition was To Mr. Gervas Wild, Mayor of Nottingham. sixty burgesses, and a copy thereof fairly en.
drawn, and signed by above three hundred and
grossed, with the names of the esses that • We whose names are hereunto subscribed, had subscribed, was sent and presented to the • being burgesses of the town of Nottingham, lord chancellor at Bath on Thursday the tenth
and knowing or understanding that you and of this instant August. Which Petition was thirteen more of the corporation have, without in these words following, viz.
the consent of the burgesses of this town, and · against their will, taken upon you to agree to
To the right honourable the Lord High Chan• the surrender of the charters, liberties, and
cellor of England : The humble PETITION • franchises of this corporation, and to cause
of the Burgesses of the Town of Notting• the corporation-seal to be affixed to an in- ham, whose names are bereunto subscrib• strument for making of such surrender; and
ed, on bebalf of themselves and most of • being by our burgess-oath obliged to preserve
the Burgesses of that Town. * as far as io us lies, all the rights and privi. • Most bumbly sheweth : leges of this corporation; and considering « That the town of Nottingham being a bo• what great damage it must necessarily be to rough by prescription, and an ancient corpo • the corporation in general, and to us and ration, and the burgesses of that town (who • every other particular burgess of the corpo- are a body corporate by the name of mayor and • ration, if the charters, liberties, and franchises • burgesses) having many liberties, privileges, • sbould be so surrendered; have thought our rights, and franchises, which they hold by
selves obliged, in order to prevent so great an grant and contirmation from his majesty and • evil, to signify these our thoughts of what his royal predecessors, and many other rights, • you have done, and are about to do; and that "liberties, and privileges which they bold by • many of your liberties and franchises, which "custom or prescription; and divers persons
are only held by custom, and not by char-having given lands to that corporation of a
« very great annual value: The present mayor, Jenkyns could be effectual in law : it was hoped « with three or four of the aldermen, and nine that there would not have been any further
other burgesses of that corporation, bave de progress in the business, at least before the « clared they design to take a new charter, and burgesses were heard upon their caveats or pe« bave taken upon them, without the consent of titions. And it was taken for granted, that no «your petitioners, and most of the burgesses of new instrument in order to any surrender • that town, to agree to the surrender of the could be made and sealed without calling toge« charters of that corporation ; and have taken ther the council of that town; because, by cus• the town-seal, and affixed it to an instrument, tom of that town, the town-seal hath always
designing thereby to make an actual and ab- used to be kept under the custody of three < solute surrender of all the said charters ; locks and keys, and not taken out but in coud« which if they have power to effect, it will (as cil; and those three keys kept by three several « your petitioners are advised) not only dissolve persons, for better preventing of any indirect the corporation, deprive your petitioners and use of the seal. But contrary to the burgesses' e other burgesses of that town of many rights, expectation, and against all ancient usage, Mr. « liberties, and privileges which they held by Mayor (having, as he said, received advice « custom and prescription, cause all the lands from London that the instrument be had sent • given to that corporation to revert to the heirs up for surrendering the charters was not suffi« of the donors, and disinherit your petitioners cient) did on Saturday the 12th of August re« and other burgesses of that town of all the quire of the senior coroner to deliver him bis « said lands, liberties, and privileges, which key; which the coroner refusing to do, (unless, • both they and their predecessors, as burgesses according to the custom of the town, a council • of that town, bave inherited, and ought to was called, and sbould order such delivery) it • enjoy, but also subject your petitioner and seems Mr. Mayor found another way to come • their freeholds against their will to such ser-by the seal, if that be true which was signified « vices, damages, and great inconveniences, as in the public prints that came down to Not« may be brought upon them by the contri- tingham on the 19th of August, viz. That «vances of the said mayor and aldermen, in case upon the 14th of August a surrender of Not• they can obtain a new charter to pass the tingham charters was made to his majesty: • broad-seal without the privity, consent, or And there is one thing which hath happened • hearing of your petitioners.
since, which gives a shrewd light what Mr. • Your petitioners therefore humbly pray Mayor did on that 12th of August, without so 'your lordship to take into consideration the much as summoning a council ; for the party • aforesaid mischiefs, damages, and inconveni- who by Mr. Mayor's command, as he saith, did "ences that are like to befall your petitioners that day force open the lock to which the co• and other burgesses of that town, in case roners' key belonged, bath since confessed the such surrender should be made and accepted, fact. So that now if it should hereafter apand a new charter taken by the said mayor pear to be true, as those prints seem to intimate, and aldermen : And that your lordship would than any instrument for surrendering of Notplease before such surrender be accepted, or tingham charters to his majesty, was presented any new charter for that town be passed the to his majesty on the 14th of August, it will • broad-seal, to grant your petitioners a day of scarce be a question, by what means, or how • hearing, and to order thereupon as shall be lawfully Mr. Mayor came by the seal, or how agreeable to equity and justice
valid such surrender is like to be. . And your petitioners shall ever pray, &c.' This is the true case of the burgesses of
Nottingham, who are ready to make good every The Petition being delivered as aforesaid, and matter of fact, as herein stated, whenever Mr. Mayor having been acquainted in manner there shall be occasion ; and doubt not but to aforesaid, by the generality of the burgesses, prove it, if they may either be heard upon that they neither bad consented, nor should their petition or caveats; and however question consent to a surrender of any of the charters, not but by the assistance of the courts of jus rights, or liberties of the town, and the bur- tice they shall still preserve their rights, notgesses having been advised by council that no withstanding all these endeavours that have instrument for making a surrender of the char- been used to give up their charters and liters to the earl of Hallifax and sir Leoline berties.
307. Proceedings against Sir Thomas ARMSTRONG,* iu the King's
Bench, upon an Outlawry, for High Treason : 35 Charles II.
A. D. 1684. ON the 14th of June, 1684, sir Thomas writ was on his majesty's behalf moved for or Armstrong was brought to the bar of tie Thursday last by Mr. Attorney-General. Court of King's-bench at Westminster, by The return of the writ was read by the clerk virtue of a Writ of a Habeas Corpus, directed of the crown, by which it appeared he was in to the keeper of the gaol of Newgate ; which the custody of the keeper of Newgate, by a
* “ But if the Court lost much by the death could save bim. He was now in an outlawry: of Holloway, whom they had brought from but though the statute was express, that if an the West-Indies, they lost much more by their outlawed person came in at any time within the proceedings against sir Thomas Armstrong, year, be was to have a trial notwithstanding who was surprised at Leyden, by virtue of a his outlawry. It was pretended in answer to warrant that Chudleigh the king's envoy had this, that he not coming in, but being taken, obtained from the States, for seizing on such had not a right to the benefit of the statute. as should fly out of England on the account But there were several months of the year yet of the Plot. So the scout at Leyden, for to run. And since a trial was a demand 5,000 gilders, seized on him ; and delivered founded on natural justice, he insisted on it. him to Chudleigh, who sent him over in great And when he was brought to the King'shaste. Armstrong in that confusion forgot to bench bar, and asked what he had to say why claim that he was a native of the States : for sentence should not be executed, he claimed. he was born at Nimeguen : and that would the benefit of the statute. He said, he had yet, have obliged the Dutch to have protected him, when be was taken,s everal months to deliberate as one of their natural born subjects. He was upon bis coming in: and the seizing on him trusted in every thing by the duke of Mon before his time was out, ought not io bar bimm mouth : and he having led a very vitious life, a right that the law gave bim. He also menthe Court hoped that he, not being able to bear tioned Halloway, to whom a trial was offered the thoughts of dying, would discover every the former term. And, since it was a point of thing. He shewed such a dejection of mind, law, he desired council might be heard to while he was concealing himself before he es- argue it. Jefferies rejected all this: He said, caped out of England, that Hambden, who saw the king might either offer a trial or not, as bé him at that time, told me, he believed he would saw cause : and he refused to hear council : certainly do any thing that would save his life. wlich being demanded upon a point of law, Yet all were disappointed in him : for when the denying it was thought a very impudent he was examined before the council, he said, piece of injustice. And when Armstrong inhe knew of no Plot but the Popish Plot: he sisted, that he asked nothing but the law, Jefdesired, he might have a fair trial for his life: feries in bis brutal way said, he should have it that was all he asked. He was loaded with to the full; and so ordered his execution within irons ; though that was not ordinary for a man
six days. And the law was executed on him who had served in such posts, as to be lieute with the utmost rigor : for he was carried to nant of the first troop of guards, and gentle Tyburn in a sledge, and was quartered, and his man of the horse to the king. There was quarters were set up. His carriage, during his nothing against him, but what Rumsey and imprisonment and at bis death, was far beyond Shepherd had sworn of the discourses at Shep- what could have been imagined. He turned herd's, for which lord Russell had suffered. bimself wholly to the though:s of God, and But, by this time tbe credit of the witnesses of another state ; and was praying continually. was so blasted, that it seems the Court was He rejoiced, that he was brought to die in afraid that juries would not now be so easy as such a manner. He said, it was scarce posthey had been. The thing that Rumsey had sible for him to have been awakened into a due sworn against him seemed not very credible : sense of bis sins by any other method. His for he swore that at the first meeting Arm- pride and bis resentments were then so enstrong undertook to go and view the guards in tirely conquered, that one who saw him said to order to the seizing them; and that upon a me, that it was not easy to think it was the view he said at a second meeting that the same person whom be had known formerly. thing was very feasible. But Armstrong, who He received the Sacrament; and died in so had commanded the guards so long, knew good a temper, and with so much quiet in his every thing that related to them so well, that mind, and so serene a depórtment, that we without such a transient view he could of the have scarce known in our time a more eminent sadden have answered every thing relating to instance of the grace and mercy of God. them. The Court had a mind to proceed in a Armstrong in his last paper denied, that he summary way with him, that he should by the ever knew of any design against the king's or hurry of it be driven to say any thing that the duke's life, or was in any plot against the