Still he was not allowed to rest. In the following February (16 Feb., 1683) he and his late colleague in the shrievalty, Samuel Shute, together with Lord Grey of Wark, Alderman Cornish, Sir Thomas Player, the city chamberlain (who had recently been called to account for moneys received), Slingsby Bethell, and others were brought to trial for the disturbance that had taken place last Midsummer-day. The trial was opened at the Guildhall on the 16th February, but the jury being challenged on the ground that the array contained no peer (a peer of the realm being about to be tried), the challenge was allowed, and the trial put off until the next term. On the 8th May, after a long trial, all the accused were found guilty, and were eventually (26 June) fined in various sums, amounting in all to £4,100.[1528]
Sir Patience Ward tried and convicted of perjury, 19 May, 1683.
Pilkington's fall also dragged down Sir Patience Ward, who was proceeded against for perjury, he having stated on oath at the trial of the late sheriff that the debate in the Court of Aldermen concerning the Duke of York was over before Pilkington had arrived, and that there was no mention made of cutting throats while he was there. After much contradictory evidence the jury found the defendant[pg 494] guilty, and he, like Shaftesbury before him, sought refuge in Holland.[1529]
The new Common Council, 21 Dec., 1682.
In the meantime, having experienced so much difficulty in bending the City to his will, and having so far succeeded in his object as to have a royalist mayor in the chair, as well as royalist sheriffs, Charles took steps to obtain an equally subservient Common Council. To this end he had issued a command (18 Dec.) to the mayor to enforce on the electors at the coming feast of St. Thomas (21 Dec.) the obligation of electing only such men to be members of the new council as had conformed with the provisions of the Corporation Act. The king's letter was by the mayor's precept read at each wardmote on the day of election.[1530] It was hoped that by this means a Common Council might be returned which might be induced to make a voluntary surrender of the City's charter instead of forcing matters to an issue at law.[1531]
The first hearing of the Quo Warranto case, 7 Feb., 1683.
The design failed and the king resolved at length to proceed with the Quo Warranto. After the lapse of more than a twelvemonth the trial came on for hearing (7 Feb., 1683). The solicitor-general, who opened the case, propounded to the court four questions: (1) Whether any corporation could be forfeited? (2) Whether the city of London differed from other corporations as to point of forfeiture? (3) Whether any act of the mayor, aldermen and[pg 495] Common Council in Common Council assembled be so much the act of the Corporation as could make a forfeiture? and (4) Whether the acts by them done in making a certain by-law and receiving money by it,[1532] or in making the petition of the 13th January, 1681, and causing it to be published, be such acts as, if done by the Corporation, would make a forfeiture of the Corporation? After a lengthy argument counsel for the Crown concluded by asking judgment for the king, and that the defendants might be ousted of their franchise as a Corporation.
The speech of the City's Recorder.
The City's Recorder, Sir George Treby, rose in reply. His argument in favour of the City[1533] tended to show that the corporation of London quâ corporation could not forfeit its existence either by voluntary surrender or by abuse of its powers, much less could its existence be imperilled by the action of those representatives of the city to whom its government had been confided. The corporation of the City was a governing body elected for specific purposes; if it proceeded ultra vires to establish market tolls or to offer a petition to the king which was seditious, an indictment lay against every particular member of that body, but no execution could be taken against the mayor, commonalty and citizens of London, a body politic that is invisible, one that can neither see nor be seen.
Counsel on the other side had laid stress on the fact that the liberties and franchises of the City had been often seized or "taken into the king's hands," adducing instances with which the reader of the earlier[pg 496] pages of this work will be already familiar; and if they could be so seized, they could also be forfeited. The Recorder argued that this conclusion was a wrong one. The effect of the seizure of the City's liberties in former days had only been to place the government of the city in the hands of a custos or warden. The Corporation continued as before; it might sue and be sued as before; it was neither suspended nor destroyed. How could the king seize a Corporation? Could he himself constitute the mayor, commonalty and citizens of a city, or make anyone else such? No, a Corporation was not, to use a legal phrase, "manurable"; it could not be seized; nor had anyone (he believed) ever imagined such a thing as a dissolution of a corporation by a judgment in law until that day. At the conclusion of his speech the further hearing of the case was adjourned until April.