The Sun.
London, England, 1846-04-27 00:00:00

rtirb Litton

SUN OFFICE, Seven o' Clock,

LORD MAYOR'S COURT.
(THIS DAY.)
(Before the RECORDER.)
THE FREEMEN AND NON-FREEMEN OF THE CITY OF LONDON.
—THE CHAMBERLAIN OF THE CITY OF LONDON V. sTITR
AND OTHERS.
(Continued from our Afternoon Edition.)
The SOLICITOR-GENERAL hoped his Learned Friend would
reserve his observations till his proper time fur • in
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; the plaintiff 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 counter 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 pleacounterr
of the plaintiff were allowed, there would be no departuretm;he
And now, to come to the great question before them, he
right to
would admit that his Learned Friend had a perfect
the question
say " We have joined in the demurrer
isu
bad in point of law.
presented in your replication ;" but b. P. LearnedFrieunde
had said that the replication was bad
and impugn the
(the Solicitor-General)
counter plea of the plainwtieffulade"tbhraed
judgmentlikewise, aonfdthhee
Court.
He that he was entitled to
He alleged that the return was made by indifferent persons,
viz., the aldermen and inquests o.f the war
tods; andhis objection
he
jemcainnn-
tained that it could not be
the
esemd inreply
to their unindifferency that proceedings were in accord-
mice
wit
h an immemorial custom. He maintained that, by
of the land, no freeman of this city could act as a juror
on
the
law
case in which the City of London was interested. In sup-
port of 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 udes 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
wfault.
h
They made these cases triable in their own court,
inquests
tisv
in
which
their own laws prevailed, and to which the
only were empowered to return the juries who ward
givingw emoutihdhaveleteos
try them. If they chose to make a law,
a share in the penalties to be recovhred; nd 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 RECORDER—It is an oldish law, made 240 years ago,
when Sir Henry Montague, afterwards Chief Justice of Eng-
land, was Recorder.
The SOLICITOR-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. Start 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-GENERAL said the Court of Queen's Bench
had 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 ultimately appeal to the highest courts in the
country—which parties, from their poverty or other causes,
had been unable to raise this queston. He should ask his
Lordship to decide this question.
The RECORDER said the City of London was different from
other corporate bodies in the country, because it had within
itself the power of administering the law, and the making of
laws, which had from time to time received the sanction of
Parliament.
The Sonicercea-GENERAL said he was one of those NyhO
hoped that tilat'afana-Cendeht 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
under the management of the Municipal Corporations Act.
But he wished to impress on his 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 justice, he thought that
that power would not last long. It was true
those powers and privileges of the City of London
were greater than 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. Andray, which were similar to this
case, in which it was ruled by the Recorder that the
challenges against the array, on account of unindifferency,
must be set aside, because for two centuries similar cases had
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 who
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 eves of tenfold
importance with respect to those constituting juries.
The RECORDER 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.
The RECORDER—Are you right in your distinction?
The SOLICITOR-GENERAL--I,Vhat was the distinction ?
Were not the citizens and aldermen part of the city? And if
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 SOLICITOR-GENERAL—II 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.
0 The Racoanen—You are quite mistaken if you suppose
that the Corporation paid for the dinner of which you partook
of 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 e ' ,her court.
tie RECORDER said his opinion showed that it was the
intention of Lord Ellenborough 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 RECORDER suggested that twelve should be selected
who were not freemen.
The SOLICITOR-GENFRAL inquired
what course the counsel
for the City wished to 'pursue ; and it was ultimately ar-
ranged that the first eurvman, Mr. Thomas Jenkins, should
be challenged, on the
ground of being a freeman and there-
fore an interested part
objection to Mr. HenryFenton, Mr. Pyeman, Roe sele,eene objEdmonds,
E;amenae, and others
of the jury, to the number of ehaveriMr.
The jury were then sworn, and, ptO'canna'
Mr. ILL then opened the case, which was an allywarehouseman,gtoen
against the defendant of acting as
warehouseman,
and chapman under five counts, all differently putting the
-",
matter, without being free of the City, thereby subjecting himself to the penalty of 5/. for the offence.
Sir T. WILDE then proceeded to say that the apparent
count was that which had been just stated at the suit of the
Chamberlain of the City of London, but which was really
instituted to ascertain whether gentlemen carrying on 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,
case. It was the
were not sometimes
j applicable to the
necessity of abidinugstbiyeethofesee general particulareral 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 counsel
on either side to allege that there was partiality whatever, either
in the jury or the several officials who had been instrumental
iii ,n.ingina..them together, but their object was to ascertain
V tether, inai great quest ion like this, a bye-law, passed many
years ago, ant which might bepeifectly just at the time it
yeas passed, was applicable to this case. If: consistently.
with this bye-lair the cause could have beentrteda hnotahveer
and a foreign court, much,i orflottl, aso objection
was oi t
would
m the proper
been obviated, but such could
court, in consequence of the judge being acquainted
provedcquainteili
those facts which would elsewhere have to
eyi-
dence. The real question wee, whether gentlemen
of stand-
ing respectability and considerable wealth should partake of
ail the advantages, legal, social,
and otherwise, • th
out hearing part of the expenses which were necessary to
aecure these advantages. All knew that it was of the
utmost importance to the Corporation how it wilS consti-
tuted. In times of the utmost distress the voice of the
Corporation had been loudly raised, and constitutionally in-
fluential, and even in periods of great doubt and difficulty,
the Parliament itself had even flown to the City for refuge.
If they were to look to the lists of the nobility and of other
corporate bodies, they would find a large portion to have
sprung from the Corporation of Londom ; and if, then, the
wholesale dealers and other respectable residents in the City
were to refrain from taking up their freedom, a great advent age
'would be lost to the Corporation. Then, if theywere to look
-fibecal causes of the expenditure, they would see
allother The police, the criminal juris-
• dictil4he tif4cient reason.
611hrug and the lighting of the City, were ad-
vantages were partaken of by the non-freemen as well
as-by the freemen, but the bulk of the expenses were borne
by the. City:- Xerw was it fair that these benefitste se
should be
6 who did not contribute to
h
_• eaVY7O by 11
To_constitu such a principle would be altogther COntrary
t,..

r

\./1j

ti