The Sun.
London, England, 1846-04-28 00:00:00

LORD MAYOR'S COURT.
(Before the RECORDEa.)
PRE FREEMEN AND NON-FREEMEN OF THE CITY OF LONDON.
—THE CHAMBERLAIN OF THE CITY OF LONDON V. STURT
AND MITERS.
(Continued from our Afternoon Edition of yesterday.)l
The SOLICITOR-GENERAL hoped his Learned Friend would
reserve his observations till his proper time for addressing
the Court He apprehended that, although they did not in
as many words admit the unindifferency of those who made
the return, yet as they had not denied their disinterestedness
in the counter plea, he maintained that as the challenge im-
puted their unindifferency, and they were silent on that
head in their counter plea, they did in substance, and in
point of fact, admit the charge. It was invariably
the rule that where a plaintiff did not deny the
averments of a defendant, he did in fact admit them. The
counter plea in this case was what was called a confession
and avoidance 2 • the plaiatiff admitted the allegation of the
defendant, but he maintained that the proceeding was le-
galised by a custom from time immemorial. Now to that
answer he gave a complete and direct denial; he maintained
that they could not protect themselves by any such custom.
The question, therefore, that would have to be tried, if the
defendant's answer to the eounter plea were allowed, would
be not the unindifferency of those who had made the return
or the jury, but the validity of the custom pleaded. And he
apprehended that if the defendant's answer to the counter plea
of the plaintiff were allowed, there would be no departure
And now, to come to the great question before them, he
would admit that his Learned Friend had a perfect right to
say "We have joined in the demurrer upon the question
Friend
presented in your replication ;" but his Learned
had said that the replication was bad inpoint of
the
counter Ile
(the Solicitor-General) would " eemi?unt,, and impugn
counter plea of the plaintiff as bad likewise, and he appre-
hendedi
that he was entitled to the judgment of
porous,
of the Court.
He alleged that the return was made
Viz., the aldermen and inquests of the wards; and he main-
tained that it could not be saidinr
were in eply to his objection
to their unindifferency that the proceedings
accord-
ance with an immemorial custom.
.He maintained that, by
the law of the land, no freeman of this-city could act as a juror
on a
case in which the City of London was interested. In sup-
port of his argument, the Learned Gentleman then proceeded
to quote the case of Easthope v. Braddock, 3 Burrows, in
which the defendant was sued by the corporation of
Chester for having (as in this case) carried on his
trade within the limits of the city of Chester without
having previously purchased the freedom of that city.
The defendant objected to all the proceedings,
which were precisely similar to those of the present suit, and
on the case being argued in the superior courts it was de-
cided that the corporation could not plead a custom in sup-
port of their illegalities; and when it was urged that if the
sheriff and coroners of Chester could not return juries for the
trial of such cases, the reply of the judges was that that was
the fault of the corporation themselves; and so in the pre-
sent, if by the decision of the law, which prevented interested
parties participating in a case in which they were interested,
the Corporation of London could not return a jury for
the trial of these actions, it was entirely their own fault.
They made these cases triable in their own court, in which
their own laws prevailed, and to which the ward inquest
only were empowered to return the juries who would have to
try them. If they chose to make a law, giving themselves
a share in the penalties to be recovered and make them only
recoverable in their own courts, in which they themselves
appear to demand these penalties, they were indifferent,
and therefore incompetent to try cases of this nature. It was
objected that they were interested, and that no trial could be
made, because it would be tried by themselves, for it was only
by aldermen of the City of London that juries could be returned.
The REcoRDEn—It is an oldish law, made 240 years ago,
when Sir Henry Montague, afterwards Chief Justice of Eng-
land, was Recorder.
The SoacCiTeß-GENERAL said, he need not tell his Lord-
ship that time would not validate that which was bad. It
was not every one who had spirit, patriotism, or money, to
enter into a contest with the City of London on the subject.
It happened that the defendant, Mr. Sturt had, and therefore,
it was that his Lordship was now called on to decide the
question.
The RECORDER inquired how it happened, if all the
points had been decided, as stated by the Learned Solicitor-
General, that the Queen's Bench sent them invariably for
trial in that Court ?
The SOLICITOR-GENEntae said the Court of Queen's Bench
haa invariably and wisely abstained from giving decision on
the question on the motion for a procedenda, in order that it
might be put on record, so that the parties, if they thought
proper, might ultinretely appeal to the highest courts in the
country— weich parties, from their poverty or other causes,
had been unable to raise this question. lie should ask his
Lordship to decide this question.
The RECORDER said the City of London was different front
other corporate bodies in the country, because it had within
itself the power of achnidietering the I•iie, and the making of
laws, which had from time to time received the sanction of
l'a rl lament.
The SoLICIToR-GENERAL said he was one of those who
hoped that that transcendent power of the City of Lon-
don might last for ever; neither did he wish to see
its institutions placed on the same footing with other
cities in this country, nor to see it placed
Ruder the management of the Municipal Corporations Act.
But he wished to impress on liis Lordship that if it was held
that the City of London, with all its power and privilege,
should retain the power and privilege of trying cases in a
court that involved the subversion of the very first prin-
ciples of the administration of iunice, lie thought that
that power would not last long. It was true
those powers and privileges of the City of London
were greater then those of any other city in Europe, but he
apprehended that this was no argument at all in support of
the practice of trying their actions in their own courts,
and deciding penalties, and determining whether parties
were liable to pay them or not.
Sir T. WILDE then read the cases of Chamberlain v. Phil-
lipps, and Chamberlain v. Audrey, which were similar to this
case, in which it was ruled by the Recorder that the
challenges against the array, on account of unindifferency,
111 u9l. 4...• 11, uc .i.ltilut Lida
been tried in this Court, and because the objection had often
been taken before, but had never prevailed. It was how-
ever, sometimes the practice to disfranchise witnesses win)
were freemen, in order that they might give evidence as
non-freemen.
The SOLICITOR-GENERAL said the principle was as appli-
cable to juries as to witnesses, except that it was of tenfold
importance with respect to those constituting juries.
The RECORDEa said that was saying that we ought not to
have the means of local redress.
The .SOLICITOR-GENERAL said he did not mean that—he
meant that the penalties ought not to go into the pockets of
those who were the ministers of justice,
Tll9 RucoaDEß—Are you right in your distinction?
The SOLIciToR-GENLEAL—W hat was the distinction ?
Were not the citizens and aldermen part of the city? And it
the penalty was recovered, would it not belong to the Cor-
poration ?
The RECORDER asked if persons in qui tam actions did not
sue for themselves and the Crown? Into whose pocket did
the penalty go?
Sir T. WILDE—By law it will go to the Crown.
The Somerroa-Gexaeae—lt does not go into the privy
purse.
The RECORDER said the aldermen sat in that court in a
different capacity than when they sat in the Common Coun-
cil, as they sat here in their executive capacity. The money
did not go to them, but was devoted to public purposes.
The SOLICITOR-GENERAL said they expended the money
at their discretion. He had so lately enjoyed the splendid
hospitality of the City of London, that he would say no more.
—(Laughter.) It went to the revenues of the City, but is
applied to purposes in their discretion.
The RECORDER—You are quite mistaken if you suppose
that the Corporation paid for the dinner of which you partook
the other day.--(Laughter.)
The SOLICITOR-GENERAL read the opinion of Lord Ellen-
borough, on a motion for a procedenda in a similar case,
which set forth that for two centuries and a half it had been
the custom to try questions of this kind before recorders in
all courts in the kingdom, and to remove them if necessary
to a higher court.
The RECORDER said his opinion showed that it was the
intention of Lord Elleaborough that the case might go to a
superior court, and be sent back again.
The SOLICITOR-GENERAL would be glad if his Lordship
would give such a decision, and also decide pro forma on
behalf of the demurrer.
The RECORDER said he was prepared to overrule the
challenge. He was quite prepared to put the case into the
fullest and best course of inquiry.
It was arranged that this should be put on the record, and
this exhausted the argument for the challenge, and it ac-
cordingly was about to proceed, when the Recorder stated
that he did not intend to overrule the case cited, to which the
Solicitor-General asserted that he understood it was done
provisionally.
The RIO ORDER suggested that twelve should be selected '
who were not freemen.
The SOLICITOR-Gestaaase inquired what course the counsel
for the City wished to pursue ; and it was ultimately ar-
ranged that the first juryman lair. Thomas Jenkins, should
be challenged, on the ground of eing a freeman and there-
fore an'
mintre.rpested par ti—the same objection to Mr. Henry
of the r. Roberts, Mr. Edmonds, and others
jury, to ihetunnetatlter of eleven, pro forma.
The jury were
Mr. HILL they openewdetrtni ancasde, which was an allegation
against the defendant of eactina as warehouseman, deale
and Chapman under aye
Patting the
matter, without being free of tliegMetil:rrerrentity subjecting
himself to the penalty of 51. for the offelCe.tilere
Sir T. WILDE then proceeded to say that the apparen
count was that which had been just stated at theeuit of thet Chamberlain of the City of London, but which was
oa asrally
instituted to ascertain whether gentlemen carrying
busi-
ness in the City should be compelled to take up their free-
dom. The jury were aware that in all the affairs
of life the authorities were obliged to proceed on
general rules, which, it must be allowed, were not sometimes
applicable to the justice of each particular case, It was the
necessity of abiding by these general rules which had obliged
them to occupy so much time on the preceding day and on
this day in arguing the proper mode of abiding by them, and
ascertaining whether the panel had, in the first place, been
properly made; and, secondly, whether the gentlemen who
were brought to try this cause were properly brought there.
There was no intention whatever on the part of the coue:sel
on either side to allege that there was partiality whatever, eith e:
in the jury or the several officials who had been instrumental
in bringing them together, but their object was to ascertain
whether, in a great question like this, a bye-law, passed many
years ago, and which might beperfectly just at the time it
was passed, was applicable to this case. If, consistently
with this bye-law the cause could have been tried in another
and a foreign court, much of this objection would have
been obviated, but such could not be, as this was the proper
court, in consequence of the judge being acquainted with
those facts which would elsewhere have to be proved iu evi-
dence. The real question was, whether gentlemen of stand-
ing respectability and considerable wealth should partake of
all the advantages, legal, social, and otherwise, with-
out bearing part of the expenses which were necessary to
secure these advantages. All knew that it was of the
utmost importance to the Corporation how it was cons!i-
tilted. In times of the utmost distress the voice of the
Corporation had been loudly raised, and constitutionally in
nuential, and even in periods of great doubt and difficulty,
If
Parliament itself had even City for refuge.
If they we flown to the
corporate breodtinels,ook to the lists of the nobility and of other
sprung from the would find a large portion to have
wholesale dealers aauf
oortrion of Londom ; and if, then, the
were to refrain from takineern respectabl reints in the 'City
would be iota to the Corp'o4tiolineir freen'
a great advante.
Then, if they were to idol:
to the several causes of th,eril;tteorit:ure, they would :-es
another sufficient reason,
_,cbithe criminal juri
diction, the watching and the lightin
by the non-fa
ors were ad-
vantages which were partaken of
be borne
as by the freemen, but the bulk of the expenneereeefistinsesesnew'well
by the City. Now was it fair that these
Should be
enjoyed by parties who did not contribute to the esreee„ s
To constitute such a principle would be altogther contrary
'to justice. He was aware that it would be alleged that the
wholesale dealers were entitled to be exempt front thee*
•expenses. But the ground fur such an allegation was
'altogether untenable, and although he was not goieg
to make a parade of ancient learning, yet thus much he
-might advance, that in the olden times, when the trade of
'this City first arose, every individual enjoying the benefit
its commerce, entered into what was called a " frank