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1796. the great case between Waller and Hanger, in the reign of James
the First, (3 Bulft. 14.) on the London exemption from prifage, The Mayor, kc. that if the chamber of London should traffick, it muft pay pri
fage; because it is in their politick capacity as a corporation, and of Lynn REGIS
the exemption granted enures only for the citizens in their incommonly called dividual and natural capacities. If then an injury has been done King's LYNN.
in the present case, it is to the particular citizens, who are named as having been disquieted by the demand of toll. But these are not so much as Co-plaintiffs in the action.
In point of principle it appears a strong proposition to affert, that the corporation of London, upon whom no demand of toll is ftated to have been made, and upon whom if they had traded it is apprehended the demand would be juftifiable, fhall yet be Plaintiffs for the injury from a demand of toll upon individual citizens, who, if the demand is actionable, are capable of suing for themselves. But that the corporation of London fhould be Plaintiffs is not merely quite unnecessary. The receiving of them as such seems to lead to two actions and two compenfations for the same injury: for a recovery of damages by the corporation of London might not be a bar to an action brought by the particular citizens immediately affected by the demand of toll. Besides it is natural to ask, where are the precedents to be found of such an action by the corporation of any place for an injury to certain of its individual citizens. Here again, the three precedents, already referred to from Ryley's Placita Parliamentaria, Madoz's Firma Burgi, and Lord Coke's Second Institute, will not serve the purpose; for in each of them the particular citizens, who were aggrieved by having their right of exemption contested, were Plaintiffs. Thus it seems, that the interference of the London corporation, as champions fighting the cause of its citizens against the corporation of King's Lynn, is at the same time unnecessary, irregular, and unprecedented.
V. Further it is submitted to be a point deserving of attention, whether the fuit in the present case ought not to have been qui tam, that is, whether the corporation of London ought not to have sued as well for the King as for themselves. Latterly, indeed, the Courts appear to have been less strict, in requiring actions qui tam, for matters including a contempt of the King, than in ancient times. But it is to be considered, that in the present case the action is not merely laid to the contempt of the King; but actually proceeds upon a disobedience of the King's command, by writ under the great feal, expressly recited in the
declaration as one of the main grounds of it. It is not the cafe 1796. of a contempt merely virtual, but of one of the most direct and express kind. Perhaps, therefore, it may be found not to fall The Mayor, &e.
of LONDON within the reach of those authorities, according to which a Plaintiff has an election to fue, either for the crown and him
The Mayor, &c.
of LYNN Regis self, or for himself only.
King's Lynn, VI. Lastly, it is with very serious anxiety submitted on the part of the corporation of King's Lynn, that the declaration of the corporation of London is effentially defective, in not ftating how the five citizens, named as having been disquieted by the demand of toll, are entitled to that denomination. More
particularly it is not alleged, that they are both freemen and inhabitant-householders of London, or indeed inhabitants of any deScription. From the filence of the declaration in this respect, it may be inferred, that the citizens named are neither inhabitanthouseholders of London, nor inhabitants in any respect; are not
full and complete citizens of London; but are persons belonging Ito and resident in other places, and merely connected with
London by having purchased its freedom: in other words, are non-resident freemen. That this is the real fact of the case, will not it is presumed be disavowed on the part of the corporation of London : for, one great object of the present fuit between 'London and King's Lynn is to have it settled, whether nonrefident freemen of London are within the benefit of its charter exemptions from toll. It is not, indeed, admitted by King's Lynn, that the London exemption applies in any respect against the King's Lynn port-duties; because as London founds upon charters, some of which are ancient enough to constitute a prefcriptive exemption ; fo on the other hand King's Lynn claims a prescriptive right of toll; and thus if the latter can be made out, the question will be, which prescription ought to prevail, that is, which shall be presumed to be moft ancient. But though this is certainly a point of controversy between the two corporations, yet, from the general verdiet, this point is clearly not open to debate on the present record; and besides the more immediate cause of the present contention certainly was the claim of London to fhelter its non-resident freemen from payntent of the King's Lynn port-duties. If the wish of the corporation of King's Lynn had prevailed, there would have been a special verdict in the present case, which would have brought forward this latter queftion most completely and directly upon the record. But a general verdict having been given, the corporation of King's Lynn is
1796. driven into raising the question about the non-refdent freemen
of London by argument and inference from the want of any The Mayor, &c.
allegation or mention of residence in the pleadings. However,
it is conceived that the corporation of London will fcare decline 'Mayor, &c. of LYNN Reais meeting a question fo notoriously a main object of their intercommonly called ference by institution of the present fuit. It is hoped, also, that Kino's LYNN. should they endeavour to avoid this latter question, there will be
found fufficient defect in their declaration to justify forcing the point into discussion : for it is submitted, that where any persons claim to be exempt from the general law of the land, they ought to be very compleat, distinct, and particular, in fetting forth the facts by which they qualify themselves for such exemptions; and that merely styling the five persons, named as having been difturbed by the demand of toll, citizens, without specifying hon they are so qualified, is too loose and general. On the information for a fum due for prisage to the King's farmer, in the case of Waller and Hanger, in the reign of James the First, it :ppears from a copy of the original record, that the Defendant, who claimed benefit of the London exemption from prisage as cxecutrix of a deceased citizen, pleaded not only that her hufband was a clothworker of London, and had for twenty years before his death been continually commorant and inhabiting within London, but that the the widow and executrix was a free woman of London, and commorant and inhabiting there.
An opening being thus made for the introduction of this great question, whether non-refident freemen of London are entitled to the benefit of the London exemption from tolls? it is deemed proper, on the part of the corporation of King's Lynn, to infift against such an extension of the privilege on these grounds:
(1.) It is fubmitted, that non-residents are neither within the words, nor within the intention of the charters of exemption.
In all the London charters the grant is in favour of the homines and cives of London. But how can one be said to be a man and citizen of a place, in which he is neither housekeeper, nor lodger, nor an inhabitant in any degree? The criterion of a citizen is reality, not merely a name. But a citizen without a house, without a family, without refidence, is merely nominal; he wants the real qualifications. As, too, such a person comes not within the descriptions of a citizen, fo he is clearly not within the intent of the exemption. The privilege, as Lord Hale (on ports and cuf
toms, Part III. Chap. 3.) properly remarks on prisage, is not 1796. intuitu perfonæ, but intuitu loci (a).' It is local, not personal. It
The Mayor, &c. is intended as a favour to persons of one place, in preference to and by way of distinction from persons of other places. But to
The Mayor, &c. admit the inhabitants of all places equally, merely because they of Lynx Regis have purchased the freedom of the place privileged, is to destroy commonly called
KING's LYNN. the distinction evidently intended ;, is to leave room for putting the inhabitants of all places upon the fame footing; is to convert a local privilege into a personal one. — Besides, other consequences of holding the privilege to be independent of refdence are monstrous. It converts a privilege of exemption into a power of exempting. It transfers the prerogative of exempting from the crown to the corporation of London, and to every other cor poration of the kingdom having grants of the same privilege Nay, it more than transfers the prerogative of exempting : for it enables the subject to produce the effect of exemption, where the crown cannot exempt; that is, as against grantees of ancient tolls, whose grants of the tolls from the crown are prior in date to the crown grant of exemption from them; for the crown cannot exempt to the prejudice of existing grants of tollsFurther, it not only deducts from the crown the toll, which otherwise would be payable by London, and other places privileged in like manner, but enables London, and each of those places, to annihilate all ancient tolls for all persons throughout the kingdom; and so, from time to time, to render this species of revenue and property wholly unproductive both to the crown and its grantees. Nay, what is even worse, it tends to change one toll for another; - to detract the ancient toll from its real proprietor, who is generally subject to fome burthen for the public benefit, such as the maintenance of a port, — and to fubftitute in its place a toll uncompensated by any such benefit, for the city of London and other privileged places invading this fpecies of property, namely, a sum of money for the purchase of their freedom, both in fraud of the crown and its grantees of ancient tolls, and to the detriment of the citizens of the very place exempted. If being resident, and being a householder, as well as being a freeman, are considered as part of the qualification of a citizen, all this aggregate of mischief and injustice is avoided. But declare, that being a freeman without refidence in any character and of any kind is fufficient to exempt, and the whole of such mischief will immediately attach.
(c) Hargrave's Law Traits, p. 124. et fog.
1796. (2.) In the next place it is submitted, that all the authorities,
hitherto gleaned, are pointedly against considering non-refdent The Mayor, &c. freemen as citizens within these charter exemptions; moft, if
not all of them, excluding even resident freemen, not being also The Mayor, &c. of Lynx Regis householders but only inmates or lodgers. commonly called
So was it declared against non-residents, by the King with the KING'S LYNN.
advice of the Lords in Parliament, in the eleventh of Henry the Fourth, on a consideration of the London charter exempting from prisage of wines. — (See Rotul. Parl. 11 Hen. 4. (a) vol. 3. p. 646.) - Thomas Chaucer, who as King's butler had the receipt of the prifage duty, complained to the Lords by petition of grofs abuse of the London exemption from prisage. He represented, that this franchise was not granted to London and the Cinque Ports, “ except to the end that those persons orly “ who dwell, and by their service become continual dwellers in “ those places, and their children in the said places born, should “ have benefit of the said franchise.” His petition next stated a grofs abuse of and fraud upon this franchise by the city of London ; namely, that “ in the city of London it is and has « been used of long time, that every foreigner not free in the faid
city, who will come to the mayor, chamberlain, or the masters "of any trade in the same city, and pay a small fum of
money to the chamber, or to the mafters of any trade of the “ fame city, shall be received into the said freedom, as well as “ he who at all times is a continual dweller in the same city, .66 notwithstanding that he is of another town or borough, to the
“ difnherison of our faid Lord the King, as well of the prisage
(a) The paragraph at which this case be- follows No. xxxii. and is the laft in the gins is, in the printed copy, marked 73. Roll. 11 H.4.-An abstract may be feea No number is prefixed to the case, but it in Cotton's Records, P.476.