tender's health, under the title of king James or either of them, were guilty actors, art and part the eight, with repeated curses and impreca- of all or one or other of the crimes above-mentions against his majestie, and those that adhere tioned, which being found proven by the to his just right and title. Thereafter the said verdict of an assize, before the lords justice geday, the said James Geddes and John Craw neral, justice clerk and commissioners of jusfoord went from the Cross to the bridgend of ticiary, the said James Geddes and John Breechine, and then renewed their drinking of Crawfoord ought to be severely punished, to the said Pretender's health in manner fore- the example and terror of others to commit said, under the title of king James the the like in time coming, and the said James eight, and when admonished and reproved Geddes and John Crawfoord, being oft and difor the same by a boy, called John Lammie, verse times called to have compeared this day sou to Mr. John Lammie of Littlefithie, and place, as they who were lawfully cited for the said James Geddes and John Crawfoord, that effect, lawful time of day bidden, and they did cruelly and in a barbarous manner, beat not enterand nor appearand, the lords justice the said John Lammie with their hands and clerk and commissioners of justiciary, decerne feet. And particularly the said James Geddes and adjudge the above named James Geddes did cutt and wound him the said John Lammie and John Crawfoord, servants to the earl of in several places of his body, with a durk or Southesque, to be outlaws and fugitives from shable to the great effusion of his blood, and his majesties laws, and ordain them to be put in manifest danger of his lyfe. And also, the to the horn, and all their moveable goods and said James Geddes with the forsaid weapon in gear, to be escheat and inbrought to his mahis hand did threaten and wound some who of-jesties use, for their not compearing to underfered to rescue or interpose in behalf of the said | ly the law for the crimes above mentioned. John Lammie, from which facts above-mentionSic Subscribitur, ed, the said James Geddes and John Crawfoord AD. COCKBURNE, I. P. D. 495. Case of the KING against GIBBON:* 8 GEORGE II. A. D. 1734. Upon an Information, in the Nature of a QUO WARRANTO, by the King's Coroner and Attorney, against the Defendant, to shew by what Authority he claimed to be a Freeman of the Town and Port of New-Romney, at the Relation of William Jarvis. Tried at Kent Assizes, held at Maidstone, the 6th of August 1734, before the Right Hon. the Lord Chief Justice Eyre. and port aforesaid, hath used and exercised, without any lawful warrant, the said office, and claims to be one of the freemen of the same town and port, and to have all the privileges, liberties, and franchises thereof: of which office the said defendant Gibbon, for all the time aforesaid, upon his majesty hath usurped, in contempt of his majesty, and to the great damage and prejudice of his royal prerogative, and against his crown and dignity: whereupon prays process, &c. be Mr. Smith. MAY it please your lordship, and you gentlemen of the jury; this is an information, in the nature of a Quo Warranto, against the defendant Gibbon, to shew by what authority he claims to be a freeman of the town and port of New Romney, in this county: and the information sets forth, That the town and port of New Romney is an ancient town and port; and that the mayor, jurats, and commonalty of the said town and port are, and for ten years last past, and long before, were, one body corporate and politic, by the name of mayor, jurats, and commonalty of the town and port of New Romney in Kent; and that the office of freeman of the said town and port is a public office, and an office of great trust and And says, That the late queen Elizabeth, by preeminence within the same town and port, her letters patent, dated at Northaw, the 4th concerning the good rule and government of of August, in the 5th year of her reign, did will the same, and the administration of public jus- and grant that the barons and inhabitants of the tice: and that the defendant Gibbon, of the said said town and port (who before that time had town and port, innholder, on the 25th of March, been incorporated, by the name of jurats and in the seventh year of his present majesty, and commonally) should for ever after be one body from thence continually, hitherto, at the town incorporate, by the name of mayor, jurats, and commonalty of the town and port of New Romney. See Kyd on Corporations. VOL. XVII. To this the defendant has pleaded, that the said town and port is an ancient town and port, and the office of freeman thereof a public office. 3 F And that they, and their successors, and all other the barons and inhabitants of the said town and port, their heirs and successors, should for ever after be, in all matters what ever, as free as the mayor, jurats, and commonalty of the town and port of Sandwich, or any other town and port of her said Cinque Ports. And the defendant by his plea further sets forth a custom in Sandwich, one of the said Cinque Ports, that if a man marries the daughter of any freeman of that town, such daughter being born after the swearing and admission of her father into the office of freeman, and being resiant and inhabiting within the town, has a right to be sworn and admitted a freeman of Sandwich. And alleges the like custom in Dover, another of the Cinque Ports. the right, that is to be determined by the judges of the court of King's-bench: and in order to make out this right, we shall produce to you the books of the corporation, as well as living witnesses; whereby it will appear, that the right of swearing and admitting freemen of this corporation is in the mayor and jurats, or in the mayor and two jurats; and that every one of the present members of the corporation was sworn and admitted by the mayor and ju rats, or the mayor and two jurats: and by an entry in the same books it will likewise appear, the defendant was duly sworn and admitted a freeman; and when this appears, gentlemen, you will find a verdict for the defendant. Mr. Lacy. Mr. Wellard, please to produce the corporation books. (Which were produced accordingly.) Serj. Darnell. My lord, we insist, the sole And that the sole right of swearing and ad-right of admitting and swearing freemen of mitting freemen of New Romney is, and at the this corporation is not in the mayor and jurats, time of swearing and admitting of him, the but in the mayor, jurats, and commonalty. said John Gibbon was, in the mayor and jurats, or in the mayor and any two jurats. That the defendant Gibbon, on the 1st of May, 1727, married Elizabeth Smith, daughter of William Smith, a freeman of the said town and port; and thereby, and by virtue of the said letters patent, became entituled to be sworn and admitted a freeman of the said town and port; and having such right and being so entitled, was, on the 25th of March last, sworn and admitted by John Coates, the then mayor, and Humphrey Wightwick and Edward Batchelor, then two of the jurats of the said town and port, being there assembled in due manner for that purpose; by reason of which he says, he is a freeman. The king replies, That Gibbon, by marrying the said Elizabeth Smith, did not become en tituled to be sworn and admitted a freeman. To which there is a demurrer, for the opinion of the Court upon the words of the charter. So that, gentlemen, the first issue you are to try is, whether the sole right of swearing and admitting freemen of the town and port of New Romney be in the mayor and jurats, or in the mayor and any two jurats and if we prove to you, that the commonalty have always had and exercised a concurrent right with the mayor and jurats, you will please, gentlemen, to find for the king. Mr. Marsh. May it please your lordship, and you gentlemen of the jury; I am counsel for the defendant Gibbon. You observe, by the opening, that this is an information, in the nature of a Quo Warranto, against him, to shew by what authority he claims to be a freeman of New Romney: and the only points that come before you now to be tried, are, first, Whether the right of swearing and admitting freemen of this corporation be in the mayor and jurats, or in the mayor and two jurats? And, secondly, Whether the defendant Gibbon has been duly sworn and admitted a freeman? There being a demurrer as to L. C. J. Eyre. It is swearing and admitting, Serj. Darnell. Gibbon being called on by the court of King's-bench, to shew by what authority he claimed to be a freeman of the town and port of New Romney, has demurred, and thereby waived the foundation of his claim. L. C. J. What! Is that waiving it? What concerned his right comes not now in issue, and was left undetermined by the Court. If he had a right, the question is, Whether he be duly admitted? And in order to that, he must be elected: And then the question is, Whether he be admitted according to the constitutions of the town and port of New Romney? Serj. Darnell. My lord, a right is here claimed by the defendant; I have a right by marrying a freemau's daughter; and if I have a right, the question is, as to the method of coming to this right. The defendant says, the sole right of swearing is in the mayor and jurats: But we say, though they have a right, the whole body must admit, though the swearing be by the mayor and jurats. L. C.J. Swearing and admitting is the same thing, brother Darnell. Where a man is chosen mayor of a corporation, the swearing and admitting him is the same thing. All persons are admitted by swearing, and taking the oath is the admission. A man admitted is to be sworn and there is no corporation in the kingdom, but where swearing and admitting is the same thing; and yet you would make them two distinct acts. Mr. Lacy. We shall prove to your lordship and the jury, that the sole right of swearing and admitting is in the mayor and jurats: and the first instance we shall shew is in 1679, Peter Martin was admitted and sworn by the mayor and jurats.-Read the entry of the 8th of March, 1679. Witness sworn to prove an Assembly-book. L. C. J. I think it proper to be read as a Court-book. Associate reads: "March 8, 1679. Romney. At a common assembly of the mayor, jurats, and commonalty of the town and port of New-Romney, in the common place held there, 32 Car. 2, Present, John Hunt, mayor; Thomas Durrant, John Mascall, John Čockman, William Green, and Mr. Isaac Rutton, freemen of the said town, Peter Martin an inhabitant of our member of Orleston, in Old Romney, was elected a freeman; and this assembly doth appoint him to be sworn a freeman by the mayor and any two jurats of this corporation." L. C. J. Peter Martin elected and sworn, 32 Car. 2, 1679. Mr. Marsh. Now read his admission and swearing. Associate reads: "At the court holden before John Hunt, the mayor, and jurats of same port, 15 March, 1679, Peter Martin testified his free consent for observing the orders, charters, and ordinances, &c. of the Cinque Ports, and of this town in particular; and is hereby declared and admitted a freeman of this corporation; and took the oaths appointed." Mr. Lacy. Read the entry, fol. 738, of Stephen Brett's admission. Associate reads: 17th of March, 1697, did elect Robert Mascall, free-born, Thomas Lancaster, and Thomas Edwards, free-born; having testified their free consents to observe the ancient orders, charters, ordinances, &c. were then admitted into the freedom of the said town: Be it remembered, that the said Robert Mascall, Thomas Lancaster, and Thomas Edwards, having testified their free consents to observe the orders, &c. aforesaid, have taken the oath, according to the customal, and are admitted into the franchises of the town and port afore. said, and took the several oaths appointed." L. C. J. A court of record, and this court held before the mayor and jurats. Mr. Marsh. My lord, there is not a single member of the corporation but is sworn in this L. C. J. It is all one to me what you do. It is admitted on all sides, there are many of these entries since 1679. Rutton and others, 7 February, 1708. Mr. Marsh. Read the admission of Isaac Associate reads: "New Romney. At a court of record holden in the Guildhall of the same town and port, the 7th of February, 1708. Whereas the mayor and jurats, at a common assembly, elected the several persons following: Be it remembered, the persons under-written, testifying their consents to observe the ancient orders, &c. have taken the oaths of freemen, and are admitted into the freedoms." "New Romney. Whereas the mayor, jurats, and commonalty of the town and port of New Romney aforesaid, at their common assembly, bolden in the common place of the said town and port, did elect and choose Mr. Stephen Brett, being free-born; Thomas Short, born at Suneeth in the county of Kent; Robert Easton, born at Battle in the county of Sussex; and John Coates, grazier; all free-born, to be freemen of the said town and port, the 15th day of May last: Now be it remembered, that at a court of record holden in the Guildhall of the same town and port, this 3d day of December, Anno Domini 1694, the said Stephen Brett, Thomas Short, Robert Easton, and John Coates, testifying their free consents for the observing and maintaining the charters, franchises, decrees, privileges, customs, and usages of the Cinque Ports, two ancient towns, and their members, and particularly of this town and port of New Romney, have severally taken the oaths of freemen of the same town and port according to the customal there, and are admitted into the franchises of the town and port aforesaid; and did also, at the same time, here take the several oaths appointed by an act of parliament, intituled, An Act for abro-ing their consent to observe the ancient orders, gating the Oaths of Allegiance and Supremacy and appointing other Oaths," &c. Mr. Marsh, Read the entry, fol. 770. "New Romney. At a court of record, holden in the Guildhall of the same town and port, the 16th of May, 1698. Whereas the mayor, jurats, and commonalty, at a common assembly, holden in the common place, on Thursday the L. C. J. Who are the people admitted? John Tooke." Mr. Lacy. Now turn to fol. 100. Read the admission of Nicholas Durrant, and others. Associate reads: "June 13, 1715. Whereas the mayor and jurats did elect Nicholas Durrant, Isaac Warren, Daniel Warquin, and John Cosby, to be freemen: Be it remembered, that they, testify &c. are admitted into the freedoms of this town and port, and took the several oaths appointed, and subscribed the declaration following.” Mr. Knowler. Read the admission of Juhn Widcomb, and Richard Howard, fol. 116. Associate reads: “August 26, 1717. Whereas the mayor and jurats, at the last common assembly, did elect the several persons, whose names are hereunto subscribed, to be freemen: Be it remembered, this 26th of August, 1717, the persons under written, testifying their consent to observe the ancient orders, &c. and taking the oaths, are admitted into the freedoms of this town and port. "JOHN WIDCOMB, "RICHARD HOWARD." Mr. Marsh. Turn to fol. 125. Read the admission of Thomas Wilson. Associate reads: "November 18, 1727. Whereas the mayor, jurats, and commonalty elected Thomas Wilson, within this town, to be a freeman: Be it remembered, that he, testifying his consent to observe the ancient orders, &c. and taking the oath, is admitted into the freedoms of this town and port. "Born at Lydd in Kent." Mr. Lacy. Now read the admission of William Gray, the 7th of June, 1781. "June 7, 1781. Whereas the mayor and jurats, at the last election of mayor, did admit William Gray, a freeman: Be it remembered, that he, testifying his consent to observe the ancient orders, &c. has taken the oath, and is admitted into the freedoms of this town and port." Mr. Marsh. My lord, we submit our case here. Serj. Darnell. The word admitted' is used both at the common assembly L. C. J. But only there in that instance. Serj. Darnell. May it please your lordship, and you gentlemen of the jury; I am for the king against Gibbon: and this issue is only a part of a question in relation to the franchises and privileges of the town and port, of New Romney, where of late there have been many illicit practices in order to overthrow the con.. stitutions of the town; and thereupon application was made to the Court of King's-bench, in two several causes, against Gibbon and Darby, who were to shew by what authority they claimed their freedoms; and they insisted they had married the daughters of freemen, and therefore had a right to their freedoms; and also against one Wightwick, who was to shew by what authority he claimed to be mayor of New Romney. Gentlemen, the election of the mayor depending on the right of Gibbon and Darby, the Court, by rule, directed the information against Gibbon first to be tried; and if he had no right, Darby was to take the fate of that trial, and to disclaim. Gentlemen, as the election turned upon the right of Gibbon and Darby, if this issue be found for them, then Wightwick is the mayor. But instead of coming to the question, Whether a man has a right to a freedom by marrying a freeman's daughter? they have demurred: and now the question is, Who is to admit the freemen? and I humbly apprehend, my lord, where a number of freemen have the freedom of a town, nobody can be let in without their consent; for, if the mayor and jurats are to admit solely, they may set up as many freemen as they please. My lord, and gentlemen of the jury, the last instances they have produced out of the assem bly-books, are, I humbly apprehend, very strong in our favour; for it appears from those instances, that when the body have agreed upon the choice of a freeman, the mayor and jurats swear him; and I take the swearing to the whole body, as appears by every instance be a thing of course; but the admission is in they have read. A freeman is elected by the mayor, jurats, and commonalty, and then he is ordered to be sworn in by the mayor and jarats: Swearing and admitting I take to be the same sure there can be no doubt in the question. thing; they are synonymous: without swearing no man can be admitted; but the swearing does not admit. Suppose twenty freemen sworn in by the mayor and jurats, the franchise of the town is worth nothing L. C. J. You take admitting to be the elec tion; it is not so: but admitting to the exercise of the right. Admitting is not conferring the right. The defendant has a right by his marriage: admitting must be construed the receiving him into the office, and admitting him to the exercise of that right, and therefore is synonymous. You go upon a wrong issue: who were the persons intituled to administer the oath of office? Serj. Darnell. Admission gives the right. L. C. J. I think it would be proper to admit the issue to be, Who ought to administer the oath ?--I don't understand the customs of the Cinque Ports. Serj. Darnell. If sworn, whether duly elect ed? or it signifies nothing. L. C. J. Suppose Gibbon to have a right; an oath administered to a man that has no right is of no avail: a man must have a right to an office, and must be admitted into that office by swearing; and the question now is, Who is to administer that oath? Serj. Darnell. We are to support the right of the whole body to elect and admit; or the Court of King's-bench will think this matter not tried. L. C. J. The Court of King's-bench would think me a trifling fellow to try the right of the election. Serj. Darnell. The rule is, that Gib bon's issue should be tried first, and Darby abide the fate of that; to which they have de murred. Serj. Baynes. May.it please your lordship, and you gentlemen of the jury; I am also of counsel in this case for the king. The sense of the Court of King's-bench was, in relation to a right set up by Gybbon and Darby; and the question was, Whether a person marrying a freeman's daughter was intituled to his freedom? And the Court was of opinion, that ought principally to be tried; and to make an end of the whole, if Gibbon and Darby had a right, Wightwick was to be mayor; if not, then Elles was to be mayor. But they have evaded this question; and when an issue was tendered to try the right, they demurred; and thereby the sole reason of granting these informations is entirely eluded: and now the question is, Whether the sole right of admitting freemen belongs to the corporation, or to the mayor and jurats, or to the mayor and two jurats? But, gentlemen, we contend that the right of admission is in the court of assembly. The gentlemen of the other side have produced some instances to shew the right to be in the mayor and jurats, and that they have accordingly taken upon them to swear in some persons, and swearing is a completion of the person's right to be admitted. My lord, the admission of freemen is to be made on Lady-day: after the election the beli tolls; and the persons having a right come before the general assembly, and say, they claim to be admitted, for servitude, or as freeborn, &c. And they judge of these facts, and thereupon admit; though the freedom is not completed till the person be sworn. Gentlemen, the evidences the other side have pro luced go no higher than 1679: whereas we have instances, long before that time, of admissions by both; and a new institution, lately practised, we humbly hope shall not set aside an ancient custom. Strange! that this power of admitting should be in a part of the body! a mayor and two jurats cannot admit, contrary to the general assembly; when they have approved a claim, the right is to be completed by swearing before the mayor and jurats. They are two distinct rights; and we shall produce to your lordship and the jury unquestionable instances, that this is the constant use, for the persons claiming to be freemen to make out their right to the assembly, and afterwards to be sworn by the mayor and jurats. A high constable is named by the justices in sessions, and then is sent by them to a justice of peace to be sworn; as, in the present case, a freeman is elected by the common assembly, and then is sent to the mayor and jurats to be sworn: and therefore, gentlemen, we hope you will find a verdict for the king. Mr. Wynne. My lord, the single question before the Court of King's-bench was, Whether Gibbon and Darby had a right to freedoms by marrying freemen's daughters? By the rules of practice, it is impossible for any part of this question to come before this Court; the subsequent proceedings in the Crown-office must shew this; and nothing could be done by the Court of King's-bench, the pleadings being brought into the Crown-office after the term. My lord, it is endeavoured by the gentlemen of the other side to take away the distinction between the admission and swearing; and it is true, they are by distinct bodies. Gentlemen, the claim is first to be made to the general assembly on Lady-day, on tolling a bell: when that has been considered, and allowed, and admitted by the general body, then, by delegacy, it has been sent to the mayor and jurats to swear the person, and is merely a ministerial act; and what they have done has been in ease of themselves, in delegacy to them. It will appear from the ancient entries, (their highest entry being 1679) and it is at an assembly of mayor and jurats, Peter Martin was ordered to be sworn by the mayor and two jurats; but not to part with any right they had, as will fully appear, when our evidences are compared in point of time with the others. You will please therefore, gentlemen, to consider, that the admission is the act of the general assembly, but the swearing the act of the mayor and jurats. Serj. Darnell. My lord, we humbly insist, the sole right is not in the mayor and jurats. L. C. J. I am of opinion, this is an admission. Serj. Darnell. In all the instances, till 1679, they were admitted at the general assembly; and in 1699 they have read one instance. We insist, therefore, that our evidence is equally strong. Mr. Knowler. My lord, we have a rule to produce all the Corporation-books at the trial, and Mr. Wellard refuses us the books. Mr. Wellard. My lord, we have brought the books hither at a great expence. Mr. Wightwick must be paid for them. Mr. Knowler. Mr. Wellard has had four guineas on that account. Mr. Wellard. The mayor has been at more than four guineas expences already, and there are several other charges to be paid. L. C. J. You should agree to pay what the master of the Crown-office shall think reasonable more than four guineas, and enter into a rule for that purpose. (Which was done accordingly.) Mr. Lacy. My lord, we submit, whether this is proper evidence on the issue? the plea is, that the sole right of swearing and admitting is, and at the time of swearing and admitting Gibbon was, in the mayor and jurats, or in the mayor and two jurats, of the town and port of New-Romney; and the issue is taken upon that, Is, and at the time was L. C. J. I think it proper evidence, to shew what has been the usage by the books. You must prove an ancient right; for Gibbon's right must be determined by the ancient usage. ration-books between Mr. Wellard and Mr. [Here a great dispute arose about the CorpoKnowler, &c. Mr. Wellard being in fear he should lose them.] L. C. J. Give them all in, and call for them one by one. You have them, and make no use of them. Serj. Darnell. Fol.-Read the election of mayor and jurats Associate begins to read, but could not go on; when the Chief-Justice took the book out of his hands. |