to in that council by virtue of any bye-law of that town, or ever shewed any such bye-law, though their right of sitting and voting there hath been denied in the council by members

thereof.

maintain, sustain with their bodies, their goods, and their chattels to their power, and them not let neither for love nor dread, without regard of“ any man, but maintain the laws, good customs, and franchises of that town: and divers burgesses of that town being informed, about the beginning of Easter-term last, that the mayor and some of the aldermen of that town had a design to surrender the charters of that corporation, it was scarce credited by any of the burgesses, that the mayor or almost any of the aldermen would consent to do a thing so directly contrary to their burgess-oath. Yet divers burgesses of the said town considering they had taken the said oath for preserving the rights of the town, thought it but convenient, for the prevention of the ill consequences which they well knew must befall that town if their charters should be delivered up, and a new charter taken without the privity, consent, or hearing of the burgesses of that town, to order four caveats to be entered: and accordingly in Easter-term ordered two to be entered at the lord chancellor's, and two at the attorney-general's. One of which caveats in each place was against passing any new charter to the town of Nottingham without the privity, consent, or hearing of the burgesses of that town; the other against the accepting of any surrender of any charter of that town, without the like privity, consent, and bearing. Which said caveats were entered accordingly.

The aldermen indeed in king James's time began, though they had no right so to do, to take upon them to be part of the council, and to intermeddle in the town's concerns, and to encroach so far upon the burgesses, without their consent, as to pretend to have a right in the setting and disposing of the corporationlands, and of the bridge-lands, and schoollands: But the burgesses were so far from consenting to their having of any such power or authority, that they in the year 1605, by their petition to the lords of the council-table, complained of the encroachments of the aldermen, and prayed redress. Upon which the lords of the council referred the examination of the matters in controversy to the judges of assize that went that circuit, to the end they might be certified and better informed by the said justices of such course, as upon good advice and deliberation they should find in their judgments agreeable to law, and meet to be set down and ordered in that behalf. Who accordingly entered into consideration of the complaints on both sides, and advised with the rest of the judges touching the charter granted to that corporation, and all other matters meet to be considered of concerning the matters in controversy; and returned certificates of their opinions of such order of agreement as they thought fit and convenient to be observed and established, according to law and justice, for the public good and government of the said town. Wherefore the mayor and the parties indifferently sent up to solicit a peaceful end of those controversies, having taken knowledge, did consent thereto; and thereupon, by consent of the said parties, it was, amongst other things, ordered, That there should be a council in that town of 24 persons only, out of which the aldermen for the time being should always be excepted; and that the said council, with the mayor or the greater part of them being at such assembly, without any other of the said corporation, should set and let the town lands, bridge-lands, and school-lands, taking unto them the chamberlains, bridge-masters, and school-wardens respectively, as their places for the lands within their several offices should require, as by the said order and agreement, which the burgesses have ready to produce when occasion shall require, will plainly appear. So that now all pretence of the aldermen being of the council, or having any thing to do with the corporation-lands, the school-The rest voted as followeth, viz. lands, or the bridge-lands, was adjudged against both by the judges and the lords of the privy council, and accordingly was wholly laid aside, till of late.

The case standing thus, and the mayor, aldermen, and burgesses of that corporation being by their burgess-oath particularly obliged that the franchises of the said town they will VOL. X.

And so the matter rested till the 25th of July last: but upon that day the mayor called a council without giving notice what the business would be, unless it was to those of his own party and confederacy. But that he had thoughts of surrendering when he came to the hall, will be pretty manifest from what he did after the question was put to the vote, and the poll taken there appeared at the hall the mayor and five aldermen, and two and twenty of the council, and Mr. William Toplady (who the last year, by order of Mr. Gervas Rippon, the then mayor, was sworn in as an alderman, though Mr. Sherwin, who stood in competition with Mr. Toplady, had near twice as many votes; upon which Mr. Sherwin brought his Mandamus, and the cause is yet undecided in the court of King's-bench). After some business in the hall was dispatched the mayor caused a question to be put for surrendering of the charters of that town ; and though it was declared by some of the council, That the aldermen had no right to vote therein, yet the mayor caused a poll to be taken, and admitted them and Mr. Toplady as voters, save only that Mr. Alderman Edge suspended his vote, and gave it neither way.

For surrendering the Charter. Gervas Wild, mayor, Christopher Hall, alderman, John Parker, alderman, Gervas Rippon, alderman, William Toplady, alderman, de facto. William Mabbot, Edward Mabbot, William Petty, Robert Wortley, Hugh Walker, William Woolhouse, John Whitby, Thomas Lee, John Unwin, H

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Against surrendering the Charter. William Greaves, alderman, John Greaves, Samuel Richards, coroners, Robert Green, sheriff, Huntingdon Eyre, Roger Ryley, Thomas Walker, Richard Smith, Francis Salinon, Ralph Bennet, John Sherwin, Samuel Smith, Thomas Trig, Willian Smith.

surrender, by the right honourable the earl of Hallifax and sir Leoline Jenkins.

So that if the aldermen should be admitted to have a right to vote in the council, yet here was no majority for the surrender. But on the contrary, the aldermen having no colour of right, either by prescription, or charter, or otherwise, for the reasons aforesaid, to be of the council; it is plain, there was only the mayor and nine of the council for the surrender, and thirteen of the council against it; and consequently that the greater part of the council voted against the surrender. Nor can it be imagined that the council of that corporation (being neither settled by prescription, nor vested in by charter, but only brought in by consent and choice of all the burgesses, only for the better managery of the revenues of the corporation, and dispatch of some other ordinary affairs, and not intrusted with many rights of that town,) can pretend to any power of sur rendering the charters and liberties of that town, more than any small number of burgesses. So that how this surrender of fourteen inen against the vote of the greater number of the council, and will of almost all the burgesses, should be good in law, is not yet well understood. And if the putting of the town-seal to an instrument without the consent of the body corporate, should be said to be sufficient in law to give away the lands and rights of any body corporate, then any thief that can but steal the corporation-seal, will have it in his power, though he be no member of the corporation, to give up the lands and liberties thereof; which indeed would be a strange piece of law and justice to be owned in any nation that pretends to sense and honesty. Yet Mr. Mayor, all this notwithstanding, did, as soon as the said vote was over, pull out of his pocket an instrument in writing, purporting a surrender of their charters, and caused the town-seal to be affixed thereto without any further vote. The draught of the instrument, as it is commonly said, was first made at London, and thence transmitted to an honourable person in Nottinghamshire, and by his order conveyed to Mr. Mayor. But this report, if it were not for one thing, which it is believed will be proved if there be occasion, might seem not well grounded, because, as it afterwards will appear, this surrender was not thought sufficient, and so another was sealed; which yet one of the aldermen would have to be the very same, word for word, with that which was first sent up sealed to London; as if twice sealing would make that effectual which was not so by being once sealed. But it is likely he had not heard what is commonly reported, and perhaps will be proved when time serves, that the first instrument for surrendering that was sealed, was drawn so as to make

After the said vote touching the intended surrender was over, many of the burgesses of Nottingham, considering their oath, and that there were many customs and privileges in reference to trade, which the burgesses of the corporation held only by custom and prescription; and that as some of the lands which that corporation held was by grant from some of his majesty's royal predecessors, so most of their town-lands, (which are of great annual value) were given by private persons; thought fit to ask advice of counsel in several points.

The first question proposed to counsel was, Whether if the charters were surrendered, and a new one taken, that new grant would not preserve the lands to the corporation. To which counsel replied, That if the charters of any body corporate were lawfully surrendered, then the corporation that held by such charters was dissolved; and that if they had any lands which had been given to that corporation, the heirs of those that gave those lands would, as soon as such surrender was completed, be entitled to the lands, and recover the same. And they said, Those lands which had been given to such corporation by any of his majesty's predecessors, his majesty might, if he so pleased, grant them again to the corporation; but no new charter of his could, as they conceived, give the corporation any title to those lands which had been given by private persons, or enable the corporation to keep them from the heirs of those that gave them, in case such surren der should be. And so, they say, it was resolved by the judges when the monasteries were surrendered, or dissolved; and that therefore a special act of parliament was advised to be made, and accordingly was made, to vest those lands in the king, there being no other way to hinder them from going to the heirs of those that gave them, when by surrender they had dissolved those corporations.

The second question proposed was, Whether, if the mayor and burgesses of a corporation claim any right of common by custom or prescription upon other men's lands, as is in the case of Stafford, Derby, Coventry, and many other corporations, they can surrender their charters, and yet, by any new charter to be ob tained from his majesty, or by any means, preserve their right of common. To which it was answered, That if the mayors and burgesses of any corporation claim such common, and afterwards make such surrender, and so dissolve the body corporate, their prescription for common is destroyed; and though his majesty should please to incorporate them anew, yet their title to common will, as they conceive, be totally lost.

The third question was, Whether the town of Nottingham, being one of the ancientest corporations of England, and free of tolls in most places, should have the same privilege if they surrendered their charters. To which it was 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 have agreed to. We had formerly tolls granted them, and kept their 'do therefore hereby declare our dissent old charters, they should have toll of Notting-from those your proceedings; and that

hamn men, and all such corporations as shall so surrender, notwithstanding any new charter, that can be granted them.

The last question propounded was, Whether

we neither do nor shall consent, or have consented, that any surrender of any charter, liberty, franchise, or privilege of the corpora tion of Nottingham should be made either by

if the mayor, or any other members of a cor-you, or any members of this corporation, or

other person or persons whatsoever; and that we will by all lawful ways and means oppose and hinder the surrendering or vacating of any of the charters, rights, liberties, or privileges of this corporation; and that in case you occasion the surrender of any of the charters, rights, liberties, or privileges of this cor

'tisfaction as the law will allow us.'

poration do, without the consent of the major part of the body corporate, occasion the surrender of the charters of that corporation, the particular persons that received damage by that surrender, may not have an action at law for recovery of their damages? To which it was answered, that it was no question but that every particular person that should be any waysporation, we shall expect from you such sadamnified by such surrender, might by action at common law recover all his damages of those persons that occasioned the surrender. Yet it was thought adviseable, as the most proper way for preventing the surrendering of the charters, and of those inconveniences and suits which might be occasioned thereby, or by the taking of a new charter if obtained by the mayor and a few of the burgesses without privity, consent, or hearing of the rest, that the major part of the burgesses should present Mr. Mayor with their sense of his proceedings, and declare their dissent from any surrender. And accordingly a writing was drawn, and signed by betwixt three and four hundred of the burgesses, and then a fair copy made and examined with the original, and so with all the burgesses names to it that had subscribed, was by several of the burgesses, and in presence of several gentlemen of quality that were no burgesses, presented to the mayor upon the fourth day of August, as the sense of most of the burgesses of that town. The writing so presented was as followeth, viz.

To Mr. GERVAS WILD, Mayor of Nottingham.

'Sir;

We whose names are hereunto subscribed, ⚫being burgesses of the town of Nottingham, and knowing or understanding that you and 'thirteen more of the corporation have, without ⚫ the consent of the burgesses of this town, and ⚫ against their will, taken upon you to agree to the surrender of the charters, liberties, and franchises of this corporation, and to cause the corporation-seal to be affixed to an in⚫strument for making of such surrender; and being by our burgess-oath obliged to preserve as far as in us lies, all the rights and privileges of this corporation; and considering 'what great damage it must necessarily be to the corporation in general, and to us and every other particular burgess of the corpo'ration, if the charters, liberties, and franchises 'should be so surrendered; have thought ourselves obliged, in order to prevent so great an evil, to signify these our thoughts of what 'you have done, and are about to do; and that many of your liberties and franchises, which are only held by custom, and not by char

The burgesses were also advised to order, and accordingly did order caveats in the names of some particular burgesses, on behalf of themselves and most of the burgesses of the town, to be entered at the lord chancellor's, the lord privy-seal's and in the signet-office, against surrendering of any of the charters of that town without the privity, consent, and hearing of the said burgesses, and against passing of any new charter to that town without like privity, consent, and hearing. And the burgesses have had an account from their agent at London, that he had entered such caveats at the lord chancellor's and in the offices of the lord Conway and sir Leoline Jenkyns, it being commonly reported that the lord privy-seal had delivered up the privy-seal to the said sir Leoline.

The burgesses were further advised to petition the lord chancellor to be heard before any surrender of their charters should be accepted, or any new charter to that town should pass the broad-seal; and accordingly a Petition was drawn, and signed by above three hundred and sixty burgesses, and a copy thereof fairly engrossed, with the names of the burgesses that had subscribed, was sent and presented to the lord chancellor at Bath on Thursday the tenth of this instant August. Which Petition was in these words following, viz.

To

the right honourable the Lord High Chancellor of England: The humble PETITION of the Burgesses of the Town of Nottingham, whose names are hereunto subscribed, on behalf of themselves and most of the Burgesses of that Town.

Most humbly sheweth :

That the town of Nottingham being a borough by prescription, and an ancient corpo'ration; and the burgesses of that town (who are a body corporate by the name of mayor and burgesses) having many liberties, privileges, ' rights, and franchises, which they hold by 'grant and confirmation from his majesty and 'his royal predecessors, and many other rights, liberties, and privileges which they hold by custom or prescription; and divers persons having given lands to that corporation of a

6

very great annual value: The present mayor, with three or four of the aldermen, and nine other burgesses of that corporation, have de<clared they design to take a new charter, and <have taken upon them, without the consent of your petitioners, and most of the burgesses of that town, to agree to the surrender of the charters of that corporation; and have taken the town-seal, and affixed it to an instrument, designing thereby to make an actual and absolute surrender of all the said charters; which if they have power to effect, it will (as your petitioners are advised) not only dissolve the corporation, deprive your petitioners and other burgesses of that town of many rights, liberties, and privileges which they held by custom and prescription, cause all the lands given to that corporation to revert to the heirs of the donors, and disinherit your petitioners and other burgesses of that town of all the said lands, liberties, and privileges, which both they and their predecessors, as burgesses , of that town, have inherited, and ought to enjoy, but also subject your petitioner and their freeholds against their will to such ser<vices, damages, and great inconveniences, as may be brought upon them by the contrivances of the said mayor and aldermen, in case they can obtain a new charter to pass the broad-seal without the privity, consent, or hearing of your petitioners.

Jenkyns could be effectual in law : it was hoped that there would not have been any further progress in the business, at least before the burgesses were heard upon their caveats or petitions. And it was taken for granted, that no new instrument in order to any surrender could be made and sealed without calling together the council of that town; because, by custom of that town, the town-seal hath always used to be kept under the custody of three locks and keys, and not taken out but in council; and those three keys kept by three several persons, for better preventing of any indirect use of the seal. But contrary to the burgesses' expectation, and against all ancient usage, Mr. Mayor (having, as he said, received advice from London that the instrument he had sent up for surrendering the charters was not sufficient) did on Saturday the 12th of August require of the senior coroner to deliver him his key; which the coroner refusing to do, (unless, according to the custom of the town, a council was called, and should order such delivery) it seems Mr. Mayor found another way to come by the seal, if that be true which was signified in the public prints that came down to Nottingham on the 19th of August, viz. That upon the 14th of August a surrender of Nottingham charters was made to his majesty. And there is one thing which hath happened since, which gives a shrewd light what Mr. Mayor did on that 12th of August, without so much as summoning a council; for the party

Your petitioners therefore humbly pray 'your lordship to take into consideration the 'aforesaid mischiefs, damages, and inconveni-who by Mr. Mayor's command, as he saith, did 'ences that are like to befall your petitioners and other burgesses of that town, in case 'such surrender should be made and accepted, ' and a new charter taken by the said mayor ' and aldermen : And that your lordship would 'please before such surrender be accepted, or any new charter for that town be passed the 'broad-seal, to grant your petitioners a day of hearing, and to order thereupon as shall be agreeable to equity and justice

And your petitioners shall ever pray, &c.'

The Petition being delivered as aforesaid, and Mr. Mayor having been acquainted in manner aforesaid, by the generality of the burgesses, that they neither had consented, nor should consent to a surrender of any of the charters, rights, or liberties of the town, and the burgesses having been advised by council that no instrument for making a surrender of the charters to the earl of Hallifax and sir Leoline

that day force open the lock to which the coroners' key belonged, hath since confessed the fact. So that now if it should hereafter appear to be true, as those prints seem to intimate, than any instrument for surrendering of Nottingham charters to his majesty, was presented to his majesty on the 14th of August, it will scarce be a question, by what means, or how lawfully Mr. Mayor came by the seal, or how valid such surrender is like to be.

This is the true case of the burgesses of Nottingham, who are ready to make good every matter of fact, as herein stated, whenever there shall be occasion; and doubt not but to prove it, if they may either be heard upon their petition or caveats; and however question not but by the assistance of the courts of jus tice they shall still preserve their rights, notwithstanding all these endeavours that have been used to give up their charters and liberties.

307. Proceedings against Sir THOMAS ARMSTRONG,* in the King'sBench, upon an Outlawry, for High Treason: 35 CHARLES II.

A. D. 1684.

writ was on his majesty's behalf moved for on Thursday last by Mr. Attorney-General.

The return of the writ was read by the clerk of the crown, by which it appeared he was in the custody of the keeper of Newgate, by a could save him. He was now in an outlawry: but though the statute was express, that if an outlawed person came in at any time within the year, he was to have a trial notwithstanding his outlawry. It was pretended in answer to this, that he not coming in, but being taken, had not a right to the benefit of the statute. But there were several months of the year yet to run. And since a trial was a demand founded on natural justice, he insisted on it. And when he was brought to the King'sbench bar, and asked what he had to say why sentence should not be executed, he claimed the benefit of the statute. He said, he had yet, when he was taken,s everal months to deliberate upon his coming in: and the seizing on him before his time was out, ought not to bar him a right that the law gave him. He also mentioned Halloway, to whom a trial was offered the former term. And, since it was a point of law, he desired council might be heard to argue it. Jefferies rejected all this: He said, the king might either offer a trial or not, as be saw cause: and he refused to hear council: which being demanded upon a point of law, the denying it was thought a very impudent piece of injustice. And when Armstrong in

ON the 14th of June, 1684, sir Thomas | Armstrong was brought to the bar of the Court of King's-bench at Westminster, by virtue of a Writ of a Habeas Corpus, directed to the keeper of the gaol of Newgate; which *"But if the Court lost much by the death of Holloway, whom they had brought from the West-Indies, they lost much more by their proceedings against sir Thomas Armstrong, who was surprised at Leyden, by virtue of a warrant that Chudleigh the king's envoy had obtained from the States, for seizing on such as should fly out of England on the account of the Plot. So the scout at Leyden, for 5,000 gilders, seized on him; and delivered him to Chudleigh, who sent him over in great haste. Armstrong in that confusion forgot to claim that he was a native of the States: for he was born at Nimeguen: and that would have obliged the Dutch to have protected him, as one of their natural born subjects. He was trusted in every thing by the duke of Monmouth and be having led a very vitious life, the Court hoped that he, not being able to bear the thoughts of dying, would discover every thing. He shewed such a dejection of mind, while he was concealing himself before he escaped out of England, that Hambden, who saw him at that time, told me, he believed he would certainly do any thing that would save his life. Yet all were disappointed in him for when he was examined before the council, he said, he knew of no Plot but the Popish Plot: hesisted, that he asked nothing but the law, Jefdesired, he might have a fair trial for his life: that was all he asked. He was loaded with irons; though that was not ordinary for a man who had served in such posts, as to be lieutenant of the first troop of guards, and gentleman of the horse to the king. There was nothing against him, but what Rumsey and Shepherd had sworn of the discourses at Shepherd's, for which lord Russell had suffered. But, by this time the credit of the witnesses was so blasted, that it seems the Court was afraid that juries would not now be so easy, as they had been. The thing that Rumsey had sworn against him seemed not very credible: for he swore that at the first meeting Armstrong undertook to go and view the guards in order to the seizing them; and that upon a view he said at a second meeting that the thing was very feasible. But Armstrong, who had commanded the guards so long, knew every thing that related to them so well, that without such a transient view he could of the sudden have answered every thing relating to them. The Court had a mind to proceed in a summary way with him, that he should by the hurry of it be driven to say any thing that

feries in his brutal way said, he should have it to the full; and so ordered his execution within six days. And the law was executed on him with the utmost rigor: for he was carried to Tyburn in a sledge, and was quartered, and his quarters were set up. His carriage, during his imprisonment and at his death, was far beyond what could have been imagined. He turned himself wholly to the thoughts of God, and of another state; and was praying continually. He rejoiced, that he was brought to die in such a manner. He said, it was scarce possible for him to have been awakened into a due sense of his sins by any other method. His pride and his resentments were then so entirely conquered, that one who saw him said to me, that it was not easy to think it was the same person whom he had known formerly. He received the Sacrament; and died in so good a temper, and with so much quiet in his mind, and so serene a deportment, that we have scarce known in our time a more eminent instance of the grace and mercy of God. Armstrong in his last paper denied, that he ever knew of any design against the king's or the duke's life, or was in any plot against the