ease me of my burthen and I said, The Lord | to the Case of the Essex Witches, ante, vol. 4, had enabled me to carry it so far, and I hope I shall be able to carry it further.

Sh. Did the Devil never promise you any thing ?-Temp. No, never.

Sh. Then you have served a very bad master, who gave you nothing. Well, consider you are just departing this world: do you believe there is a God?-Temp. Yes.

Sh. Do you believe in Jesus Christ? Temp. Yes; and I pray Jesus Christ to pardon all my sins. And so was executed.

The severity with which witches had in Scotland been treated, may be seen in the Notes

p. 817, and to the Trial at Bury, vol. 6, p. 647.
Fountainhall (Decisions, vol. 1, p. 304), notices
a Case which occurred very shortly after this
trial of Lloyd, Trembles, and Edwards; and
from his report, it seems, that the wretched
prisoner in that case was exempted from the
operation of any active cruelty.
"Oct. 1st,
1684, one Marion Purdy, dwelling at the West
Port of Edinburgh, once a milk-wife, and now
a beggar, is apprehended as a witch, and many
delations of malifices, by laying on diseases,
frenzies, &c. come in against her. She died
of cold and poverty in prison about the Christ-
mas; the king's Advocate giving no great no-
tice to such informations against witches."

287. Proceedings between the KING and the CITY of LONDON, on an Information in nature of a QuO WARRANTO,* in the King's Bench: 33-35 CHARLES II. A. D. 1681-1683.

Mich' 33 Car. 2, in B. R. Rot. 137. Sir Ro-
bert Sawyer, knt. his Majesty's Attorney
General, against the Lord Mayor, and
Commonalty, and Citizens of London.

The Information in nature of a Quo Warranto
sets forth,

THAT the mayor, and commonalty, and citizens of the city of London, by the space of a month then last past, and more, used, and yet do claim to have and use, without any lawful warrant, or regal grant, within the city of London aforesaid, and the liberties and privileges of the same city, the liberties and privileges following, viz.

All which Liberties, Privileges, and Franchises, the said Mayor and Commonalty, Citizens of London, upon the King did by the space aforesaid usurp, and yet do usurp.

students and barristers: But that had been laid aside ever since Hale's time.

the whole city, and that the two points set forth in the pleadings were just grounds for the forfeiting of a Charter. Upon which premisses the proper conclusion seemed to be, that therefore the city of London had forfeited their Charter: But the consequences of that were so much apprehended, that they did not think fit to venture on it: So they judged, that the king might seize the liberties of the city. The attorney general moved, contrary to what is usual in such cases, that the judgment might not be recorded. And upon that new endeavours were used to bring the common council to deliver up their Charter: Yet that could not be compassed, though it was brought much nearer in the numbers of the voices than was imagined could ever be done." 10wnTimes, 534.

*The court," says Burnet, " finding that the city of London could not be wrought on to surrender their Charter, resolved to have "The judgment now given was, that a city it condemned by a judgment in the King's- might forfeit its charter; that the male-verbench. Jones had died in May : So now Pol-sations of the common council were the acts of lexphen and Treby were chiefly relied on by the city in this matter. Sawyer was the attorney general, a dull hot man, and forward to 'serve all the designs of the court. He undertook by the advice of Sanders, a learned but a very immoral man, to overthrow the Charter. When the matter was brought near judgment, Sanders, who had laid the whole thing, was made chief justice. Penuberton, who was not satisfied in the point, being removed to the common pleas upon North's advancement. Dolben, a judge of the King's-bench, was found not to be clear: So he was turned out, and Withins came in his room. When sentence was to be given, Sanders was struck with an apoplexy: So he could not come into court: But he sent his judgment in writing, and died a few days after. The sentence was given without the solemnity that was usual upon great occasions: The judges were wont formerly in delivering their opinions to make long arguments in which they set forth the grounds of law on which they went, which were great instructions to the

Roger North is very copious upon this subject. From his connection with sir Dudley North, it was natural that he should feel a lively interest in the proceedings concerning the city of London, during the latter part of the reiga

Plea.

The mayor and commonalty, and citizens, appear by their attorney, and plead,

I. As to their being a Body Politic and Corporate, they prescribe, and say,

1. That the city of London is, and time out of mind hath been, an ancient city, and that the citizens of that city are, and by all that time

of Charles the Second, and wherever he mentions them in his "Examen," his partiality is displayed in a degree which very much weakens his testimony, though certainly the force of his arguments such as they are is not affected by it." Testimony, says Boyle, is like the shot of a long-bow, which owes its efficacy to the force of the shooter; argument is like the shot of the cross-bow, equally forcible, whether discharged by a giant or a dwarf. North's account (abusive as usual of Kennet) is as follows:

That in Magna Charta de libertatib' Angliæ, in the parliament holden 9 Hen. 3, it was enacted, Quod civitas London' habeat omnes 'libertates suas antiquas, et consuetudines suas.' That in the parliament, 1 Edw. 3, that king by his charter De assensu Prelatorum, Comitum, Baronum, et totius communitatis regni sui,'

thor and his fellow libellers suggest ; but from the counties where the abuses where agrievance insufferable.

And for redress of them, the gentlemen of the counties applied to the king by such means as they had. The mischief lay in towns that had justices of their own with a clause that the justices of the country' ne intromittant;' so, by excluding the country jus tices, they were become the ordinary asylums for all sorts of rogues that fled from the justice of the sessions, and particularly those that were tumultuous and seditious, and there found "I know no transaction, in this reign, more protection. And particularly, the town of Pool disingenuously traduced, than that known by in Dorsetshire was of this order, and, if I misthe word Charters; which mean the Quo take not, Taunton Dean another. Others there Warrantos brought against some corporations were in the West of England complained of; for seising their franchises into the king's and so much in earnest, that the grand juries hands for abuser of them. Whereupon, and in Dorsetshire and Devonshire, or one of them upon voluntary surrenders of some, diverse (for I do but just recollect some particulars) prenew Charters were granted, with some altera-sented these places as common nuisances. tions and restrictions. The author here distin- And, upon the application of the gentlemen to . guisheth neither things, times, manners, or in-the judges of assize, the matter was laid before tentions, but supposeth the worst of all alike. And then he transcribes, out of a cankered libel, an hellish parcel of invectives against the government, upon that occasion; wherein all orders are scandalized, the holy scriptures and religion brought in to compliment the inferna? sarcasm, and then concludes with panegyric; but it is bestowed upon attainted rebels and rebellion. This frustrum of a libel is grafted into his pious History, as an account of that remarkable proceeding, where every one may read what I care not to repeat.

66

But, as to the matter itself, I think I may distinguish it into three orders, which I term 1. Quo Warranto's. 2. Surrenders. 3. Regulations. Which partition may be marked. 1. good, 2. indifferent, and 3. bad. First, by Quo Warranto's I mean such as were ordered against those corporations that had enormously offended by breach of his majesty's laws, and who set up the authority of their trust, not for the due execution of, but for the protecting from, the law, persons that were notorious offenders against it; and out of this list I will not except the great city of London itself, as may appear with good reason afterwards. And, within this view, and going no farther, I must affirm that there never was a piece of more necessary justice in the English state, nor more beneficial to all the people in general, than the prosecuting those Quo Warranto's was. And to shew there was absolute need of it, I affirm also that the first overture was not from the court, nor from such black designs as the au

VOL. VIII.

the king, and Quo Warranto's ordered to be prosecuted against the chief of them. And, upon that some were reduced, others, knowing themselves to be obnoxious, submitted; and then their Charters came to be surrendered, and new ones granted in lieu of them. In which no alterations were made, but such as respected the law, and the good government of the country; such as laying the towns open to the justices of the counties, if they found cause to interpose there, and to act with the justices of the place, and sometimes to be of the body, and capable of the offices of authority in the corporations. And if any honest Englishman can be of opinion that such changes were not much for the better, especially as to diverse factious, or rather mercenary, corporations, I must crave leave to differ from him. And this method was observed in most instances of that reign, without any of the hideous characters which the faction, now in our latter times, have bestowed upon it. And I limit this division of a laudable proceeding, without any abuse at all, until the time that sir George Jefferies was Lord Chief Justice of the King's bench, and sworn of the privy council, which let him into the means, as his way was, to push things beyond their due bounds.

'And, after that time, the abuse began to grow, but not to any great inconvenience, and, for that reason, I give this class the character Divers inducements then of indifferent. brought in charters to be surrendered in order to the renewal of them. For it being observed 3 X

authority aforesaid, That the same citizens shall have their liberties according to Magna Charta.-And that for any personal trespass alicujus ministri ejusdem civitatis, libertas civitatis illius in manus ejusdem Domini Regis Edw. 3, vel heredum suorum, non saw or knew, as we did, how his majesty was affronted by faction fastening upon the populace of those abused towns, would think neither his honour, government, or person safe without it.

that such compliments of the towns were graciously accepted, and the prevailing with others to come in, was accounted good service, and, by a sort of mode or custom, the tendency of loyalty itself was that way; this circum- "Thus far the alteration of charters, howstance was the occasion that many towns came ever growing into abuse (I mean as to the main and took the opportunity to be remunerated nagement in the country; for the court, to do with considerable privileges, respecting their right, was very just and careful of the towns) common profit and trade, which were com- were of no desperate ill consequence. I know monly granted as they desired. And as to the it hath been in every one's mouth to object that changes made, with respect to the law and all was done to influence elections to the pargovernment of the country, the inhabitants liament; and, as the way of objectors is, they were commonly not very solicitous, but sub- run the consequences to extremity, and called mitted those matters to the king's pleasure.it packing a parliament, and corrupting the But the worst inducement was when pick- very fountain of the laws. Now if we will prothank courtiers, for ostentation of merit, fright- fess any ingenuity, we must own that, at that ed the people with the law and charges, and time, the crown had need of a better interest procured summons of Quo Warranto to be than it had in the choice of members, to mainserved upon them; and having, by such un-tain a due balance; that an adverse party due means, brought in the charters, set a value upon themselves at court, as for so much good service done. There was a memorable passage of this nature. When the Lord Chief Justice Jefferies went the Northern circuit, he had taken upon him, and accordingly valued himself to the king for doing great matters towards bringing in of charters, as it was called; and, by his own contrivance (as I have very good reason to guess) to procure for Limself as great an authority in the Northern circuit (which he was appointed for) as was possible, the king was persuaded to present him with a ring, publicly taken with his own finger, in token of his majesty's acceptance of his most eminent services. And this by way of precursor; which being blazoned in the Gazette, his lordship went down into the country as, from the king Legatus a Latere, esteemed a mighty favorite: which, together with his lofty airs, made all the charters, like the walls of Jericho, fall down before him and he returned laden with surrenders, the spoils of towns; which, with certain other performances in that voyage, not a subject here, advanced his pretensions to favour gained to the court side by a renewal, which at court. The process was indeed pleasant: they may say will incline to his party in the the king by public favours arms a man with management and return: and will not they do power by which he doth great things, and then the same, if they come in by a faction, for fathose great things entitle him to favour, as flow-vour of that? On which, side should the baing from him, which indeed flowed from the king's authority and favour shewed him. And so in the city, upon the strength of an old drunken acquaintance, he seemed, and thereupon pretended to have an interest, which procured him the countenance of his majesty's favour at court; and that turned to a real interest in the city; which in truth was the king's authority, and not his, although, (as a personal merit) he assumed it. But to conclude; we are to consider here, none could blame the king for desiring to put the corporations in a better order; for whoever

might not carry every thing in their model against the crown, as was most notoriously the case of the Oxford and Westminster parliaments. And it was better if it had, or could have, been done thus, than by setting up new boroughs, which the king might do at pleasure. I would have folks, that object this, consider what is the consequence of splitting freeholds and suborning unqualified countrymen to forswear themselves to vote in a party; and who are the greatest traitors to the public? But what was the harm if the best of those, interested in the county elections, had also voices in the boroughs, whereby they might shew the deluded not to say bribed towns, a better choice than they could, or at least would, have found for themselves? I say if this had been generally done, as it was not, what cause was there to grumble? But it could not be done in the way of renewals of charters, for these seldom touch the right of election that goes most upon prescription, and is the same as in London, whatever becomes of the corporation. And admit the advantage in the election of a chief magistrate is

lance turn? But hath not the king the nomination of all the sheriffs of counties (except one) in England? And yet no complaint was then heard of injustice, nor is the parliament the more packed for all that. Extremes are never to be argued against the sacred trust of government; for then we must have no power to keep the peace, trust nor government at all, that is, no liberty, property, nor security for either. For a power to do right always includes a power to do wrong. I cannot but conclude this reflection with observing that, as

II. As to the having, electing, making, and constituting Sheriffs of London and Middlesex, they plead,

king John, by his letters patents under the quam per nomen civium London.' And that great seal of England, in court produced, dated 5th Julii, anno regni sui primo, granted to the citizens of London, that they should have the electing, making, and constituting sheriffs of London and Middlesex imperpetuum.

gar. It is the part therefore of indifferent times to take things right, and defer nothing to the prejudices, that faction, to justify themselves, would cast upon their betters, especially in the way here before us, by setting up a tool of a writer to metamorphose the libels of the time into what he calls Complete History.

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

his

upon such accounts, care was taken to select two facts, to be assigned for forfeiture, which were unquestionably unlawful, and indubitably the proper acts of the corporation,

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