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Democracy in the City From London’s Liberties or a Learned Argument of Law and Reason 1 (Dec. 1650) a - Arthur Sutherland Pigott Woodhouse, Puritanism and Liberty, being the Army Debates (1647-9) from the Clarke Manuscripts with Supplementary Documents [1938]

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Puritanism and Liberty, being the Army Debates (1647-9) from the Clarke Manuscripts with Supplementary Documents, selected and edited with an Introduction A.S.P. Woodhouse, foreword by A.D. Lindsay (University of Chicago Press, 1951).

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Democracy in the City

From London’s Liberties or a Learned Argument of Law and Reason1 (Dec. 1650)a

[Wildman’s Speech in Rebuttal]

May it please your Lordship and this honourable Court to give me leave to make some answers to what the learned gentlemen on the other side have pleased to object. . . . I shall not, my Lord, endeavour (as that gentleman did) captare benevolentiam, to take the affections of the people before I begin to debate the matter in question. I shall not tell them that I will not insinuate into their minds anything but what will stand upon the foundation of truth, but offer my thoughts and freely submit to your judgment. Yet I hope to answer particularly Mr. Maynard’s exceptions.

He was pleased, first, to take exception at that general principle that I averred, from whence, I said, might be deduced the right of all the Wards to choose the Lord Mayor and Sheriffs by their representatives—though the gentleman might have pleased to remember I did say I would waive those principles of common right, lest he should say we intended to bring all things to an uncertainty by unravelling the bottom of government to its first principle, and therefore I insisted upon nothing but what we claim as our written right. However, he might have pleased to spare quarrelling with that principle, that a just subjection ought to be founded upon an assent of the people to their governors’ power; especially in this parliamentary time, wherein the Parliament hath pleased to declare that the original of all just power (under God) is from the people. And how governors shall derive a just power from the people but by an assent of the people, I understand not. Neither do I know how we can otherwise be a free people, as the Parliament hath declared we are. If he had quarrelled with this in the time of the King, it had been for his interest to have said that we ought to be subject to the son and heir of a conqueror because such. I hope better things now.

The second thing the gentleman was pleased to except against, was that which he only imagined in his own brain—misreciting my words—like a man created by his fancy to try his skill upon. For he supposed I did say that if we had the records that are now lost, we doubted not but that they would prove the assertion we maintain. Whereas I said: If we had the records of those times, that are lost, they would show us what the rights of the people then were. And that I conceive to be without exception.

The next thing he takes exception against is what I said concerning Magna Charta, and would make this Court believe that I had thought all that great charter was unalterable. I confess, if I had thought so I would never have drawn sword against the King. But the gentleman was pleased to assert that the King was by the common law; and if he agrees with Sir Edw. Coke’sa law, he saith that the common law is but recta ratio, right reason; and I am sure the King stood not by right reason. If he had, the Parliament could not have justly declared his office burdensome and unnecessary. But the truth is, I did only say that Magna Charta, the great charter of England, was unalterable according to the principles of the gentlemen of the long robe; I only spoke it upon their bottom. I said, if I should believe Sir Edw. Coke in what he said upon the statute of 42 Edw. 3, I must then say that an Act of Parliament made contrary to that part of the Great Charter that was declarative of the common law, was null of itself; for he said that part of it was unalterable. Thus I gave them only their own authority, and made it no assertion of mine absolutely. Though, under his favour, I think a man may assert that what is founded upon the true common law of England, as Sir Edw. Coke saith, which is right reason, no authority whatsoever ought to alter (I speak not of circumstances); for if we should aver that, we should aver contradictions in the very terms, and say that right reason of right may be altered from right reason.

I shall let pass what the gentleman was pleased to say of the laws being edge-tools, and of men cutting themselves with them. I believe he met with an argument for the people’s right that was an edge-tool in his way, and he was loath to break his shins over it, and therefore he passed over the argument with a grave caution of the sharpness of the law, that he might divert your thoughts from it. But the gentleman, coming a little nearer to the matter, lays down his maxim, which is this: that ever since the 15 of Edward the Fourth, these Liveries have had the choice. And then he argues thus. Saith he, The case would be very hard to have your titles of land, after one hundred and ninety years’ possession, to be questioned. And is it not as hard that the right of the Liveries to elections should now be questioned? Under the gentleman’s favour, the case is very different. I suppose no man pleads for the like title to a power or authority over the people that men have to their lands, nor upon the same grounds. If the titles were alike, it were just to buy and sell authority, or places of trust and government, as we buy and sell lands, or horses in Smithfield; and this our common law abhors. If we speak of people that are arrant mere vassals, like the slaves in Algiers,b authority over them is indeed bought and sold—but I hope we are not to be so esteemed—and yet the justice of those bargains is not clear. But certainly men’s titles to land and to a power of government are, or ought to be, of a different nature. And I shall make bold to assert that ’tis no hard case that the right of any number of men claiming a power in or about government by succession only, should after a hundred and ninety years’ possession be questioned. Suppose Mr. Maynard could have made good the Liverymen’s claims to the election of the chief officers of the City by custom—but then he must have more than doubled the time of the usage he spake of—yet I humbly conceive that the exercise of any power about government is not made just by continuance of time, unless it were just in the original. If long usurpation of a power in or about government could give a right to that power, all the foundations of just government were overturned, and by consequence it were not right or just to take away an usurped power if the usurpers be grown old.

Next, the gentleman is pleased, before he comes to his material arguments, to insinuate strange, huge, dreadful, monstrous consequences that would ensue in case any man shall deny his assertions. He is pleased to say, What strange consequences would ensue if we should say for a hundred and ninety years all the Lord Mayors or Sheriffs of the City of London have been unlawfully chosen! Truly, I could only answer that we might have said before the Parliament executed justice upon the King and cast off his family, What strange consequences would ensue if we should say that almost for five hundred years the people of England have been governed by them that came in unlawfully, and claimed their power successively to make the people their vassals by the sword of William the Conqueror! But the Parliament was not affrighted by such bugbear arguments to do justice upon him, and take away the power that his family claimed by conquest over us; and, I believe, Mr. Maynard will not say they did unjustly. But suppose that which he suggests, that the Mayors have been chosen unlawfully so long, ’tis time then to provide for a lawful choice. And the continuance of the unlawful will breed more of Mr. Maynard’s monstrous consequences. And if it be unlawful, ’tis not forbearing to say so that will amend the consequences.

But now the gentleman comes to his position, and saith that this government that is now is lawful. The gentleman might have pleased to have spared that—I did not yet assert that the government that is now is unlawful—yet he may take some answers to his arguments, or rather authorities, for the legality of it.

The first ground he builds upon for the lawfulness of this government is the opinion of the judges, which makes a huge cry. But by the way, the question is not now concerning the government, but only concerning the choosers or electors of the governors. The government may be the same still, though the manner and way of electing these governors may be altered from what it is at present. Yet to that opinion of the judges which makes the great noise in the Court. Oh, saith he, ’tis the opinion of all the learned judges; and then he paraphrases upon the goodness, honesty, learning, and fame of the judges that were named in the book produced. It may be those gentlemen of the long-robe were black swans; yet the argument from authority is none of the strongest. ’Tis not a very good consequence, that the thing is just because good men thought so.

Yet, under favour, the opinion of the judges I take to be not the most certain or unalterable amongst men, nor the most unbiased by their own interest. I believe, if a man should go to the twelve judges he shall scarce find four or three of the twelve of the same opinion in a dubious case. Yet if there were more that agreed, the late opinion of the judges in the case of ship-money may inform us how free the judges’ opinions are from the bias of private interest in such cases, and how fit ’tis for us to depend upon them. They could, many of them, agree to destroy property at once in favour of the King. But, however, the opinion of the judges produced by Mr. Maynard, I crave leave to affirm to be against him in this case—at least not for him. I desire it may be read.

The Case of Corporations, touching the election of Governors in the fourth of the Lord Coke’s Reports, fol. 77, 78. * * *

After Mr. Maynard had produced the authority of the judges as he supposed for his clients’ case, he argues from consequences. Saith he, If this present way of electing by the Liveries were not lawful, mark the consequences. Your Charter, saith he, is forfeited. This, I confess, is a big-bellied word, but how will this assertion agree with what Mr. Maynard, Mr. Hale,a and Mr. Wilde all affirmed: that the Charters of the City did not originally give the City those liberties that are mentioned in the Charter, but that the Charters were only declarative of the City’s rights, showing what their rights were before the Charters. Now if the Charters give not the City their rights, certainly you cannot forfeit your Charters unless the learned gentlemen shall please to say, you shall forfeit the declaration of your rights (for the Charters are no more, by their own confession). And if your forfeiture be no more, you may enjoy your liberties still, notwithstanding such a forfeiture as they pretend. But suppose a man should say what I did not yet say, that the present way of electing the Mayor is unlawful, is it any more than this, that the citizens have suffered their right to be taken from them for many years, and others to enjoy it unlawfully? And how will this consequence be deduced from thence, that the City hath forfeited their rights? I confess I understand not, by the law, that a body politic or corporation as such is under harder laws in our nation than the members of the commonwealth severally. Now, no man in England can forfeit his rights without a legal conviction of some crime for which the law censures him to forfeit his rights. And I know no reason why the City should have such hard measure, that in case the freemen have suffered the Companies to usurp their right, that therefore all the City’s rights should be forfeited. But without question this argument might have frighted you in the King’s time. Then some needy projecting courtier might have frighted you with the forfeiture of your Charter to the King, and eased you of some of your bags upon pretence of soliciting the King to renew your Charter for an easy fine. But now, if you be satisfied you have erred from the rule, I believe you may return to do right and enjoy your liberties without paying a fine.

Mr. Maynard’s next argument for the Liveries’ elections was this. That ’tis founded upon a constant usage time out of mind, so that (saith he) the City now prescribes unto this way of electing. And yet the gentleman was pleased afterwards to confess that to make a title by prescription there must be a constant usage since Rich[ard] the First’s time, and they only produce an act of a Common Council for the Liveries’ electing about a hundred and seventy-four years since, and will suppose that that act of Common Council was in confirmation of what was the custom before—whereas they produce no one footstep of a record before that time to prove that it was the usage to choose by Liverymen, but (on the contrary) it hath appeared that the election hath been four hundred years since by a select number out of the several Wards, which cannot be anyway supposed to be meant of Liverymen, they not coming as men from several Wards but as men from several Companies.

The next thing the gentleman said was this: that he hoped we would grant that we did both depart from the Charter itself. For, saith he, if we found the way of electing upon the Charter, the Charter running to the citizens indefinitely, it must be understood of all the citizens and barons. And, saith he, you grant it is impossible they should all together make the election; so we both depart from it. Under his favour I must be bold to deny it. We depart not from the Charter. For we say that, the Charter giving a right of choice to all the citizens, they may proceed in their elections either by themselves personally or their deputies; and they, finding it inconvenient to meet personally, may depute others to make their elections, and an election so made is truly said to be made by the citizens. So that in case that way of electing were admitted which the petitioners propose, it were directly agreeable to the Charter; for then indeed the citizens should choose because they choose every one of them by their deputies, as all the people of England make laws in Parliament because every man’s deputy is, or ought to be, there in Parliament.

Next, Mr. Maynard answers an objection. If, saith he, it be objected that in the way of election that is by the Liverymen, all are not represented, (saith he) it is true if you take it in some sense. But (saith he) if you take it in the sense of the law, therein they are represented, and it is the City makes these elections: . . . the Law saith so, as (saith he) in case a man’s hand moves, it is the man that moves, or his eye sees a colour, it is the man that sees. I hope the gentleman will please to confess a vast difference between a body natural and a body politic. Because he may truly say, if a man’s hand moves all the man moves, therefore will he say that what a few, or one member of the City doth is the City’s action? If so, if one in the City commit treason all the City are traitors. I believe, gentlemen, you would be loath to admit of such a law!

But to confirm this assertion the gentleman produced something out of that which he called Articuli super Chartas, where he saith, the King granted to the people to choose Sheriffs, and yet the people did not choose them all in general, it was the freeholders chose them. Mr. Maynard, if he pleaseth, could have told when the people in general were restrained from electing Parliament-men, and other the Sheriffs also, and upon what pretence it was put upon freeholders only, and how it served the King’s ends to procure that Statute of Restriction. If I forget not the time it was in the 8 of Henry 6, chap. 7. But, however, Mr. Maynard should have proved this to be just, before he can prove the other to be just by this. * * *

His next argument against this petition is this. Saith Mr. Maynard, It will tend to popularity if this should be admitted, that the Wards should choose. And I leave it, saith he, to the Court to judge what the consequent of that would be. All men’s educations, saith he, are not such as make them fit for government, or fit to choose governors. Truly, if it please the honourable Court but to consider who they are that are now the electors, this arrow of the gentleman’s returns upon himself. I could say more of it if I should not be thought to reflect—because I have a reverent respect to all kind of trades. But if I should speak of all the several Companies, the Bricklayers, Bowyers, Fletchers, Turners, Coopers, Tallow-chandlers, &c., if I should speak of the education of most of the Liverymen of forty Companies of the City, and compute their number, and tell you upon what terms most are admitted to be of the Liveries, that is, for a small sum of money; I conceive the Court would quickly judge which way of election tends most to popularity, as he calls it, and who proposeth most men that are unfit for government, to choose the Lord Mayor and Sheriffs. Will any man suppose that the educations of all the handicraft-men of the Liveries render them so able and discreet that they are fit for government? I submit it to the Court.

As for the great word Mr. Maynard was pleased to add about the ill consequents of this change that would be to other corporations, saying that this is an earthquake comes under them: I shall conceive his oratory in this to be of the earthquake’s nature, a swelling vapour, unless he will be pleased to show me how the liberty of the City, or any one citizen, is undermined by what is proposed. Only I must observe to the Court that where arguments are wanting their room is commonly supplied with words and pretences of huge strange consequences that will ensue if their desires be crossed. But the arguments from a consequence, I believe they well know their strength is not of the first degree. But, however, to suppose an ill consequence may ensue upon a city or company of persons exercising their right, and thence to conclude they must not enjoy it, is a way of arguing that I understand not.

I confess Mr. Hale is pleased to deal very ingenuously in laying down those principles wherein we agreed, which was: that the liberties of the City were by prescription, and that the Charters were but declarations of what our liberties were, and that the Common Councilmen ought to have a vote in their elections. But I said not they ought, but that they might have their votes if they were chosen to that purpose. But he was pleased to say that the Lord Mayor, Aldermen, and Common Council were a kind of a Representative of the City, and therefore he would thence aver that there is no inconvenience to the City, seeing they have such a Representative. I shall answer Mr. Hale thus: If a man should say the Parliament represent the commonwealth, and seeing we have a Representative, what matter if that two hundred or three hundred men more went into the Parliament and voted with them, the people of England surely would not think themselves well dealt withal, nor think those Acts so passed to be valid. Mr. Hale is pleased also to pursue Mr. Maynard’s mode of imagining strange kind of consequences that may ensue upon this. And, saith he, how if the people will say when you brought it to the representatives, We will not be bound to representatives, but we will come and choose personally? What then (saith he) would be the consequence of this? Truly, if Mr. Hale will suppose that the people will not be bound by any government, nor by Acts of Parliament, he may fill his fancy with bad consequences. And why may it not be supposed as well, that all the people in England should say, We will go and make laws ourselves in Parliament, as well as that the people should not be willing to be bound in their Wards to choose the Lord Mayor and Sheriffs by their representatives? I shall let pass also what Mr. Hale was pleased to urge concerning that principle of a just subjection of people to governors to be founded upon an assent, because he was pleased to confess very ingenuously that I waived those arguments that might reduce government to an uncertainty, or to the first principles of general common right. But, saith Mr. Hale, if that principle be allowed amongst a free people, that subjection to their governors ought to be by mere assent, . . . we must consider there is a personal and a virtual assent, and it shall be conceived to be a virtual consent where there hath been an usage time out of mind for the people to be subject to any form of government. Of which nature he endeavoured to prove the way of electing the Lord Mayor and Sheriffs by the Liverymen of the several mysteries; whereas, if Mr. Hale please to remember, they do all aver the usage of this way of electing but to have been for one hundred and seventy-four years that they can prove. As for any suppositions that it was before, I think there is enough answered to that, there being no ancienter records that mention the choice to have been by the Liverymen, who come not as sent from Wards. And though Mr. Hale is pleased to balance the records produced on one hand and on the other, and saith thus, that they produce for one hundred [and] seventy-four years to show that this hath been the way of electing which now is; but (saith he) those records produced to prove another way of electing is but a short time. If he please to remember, there is no footstep of mention made of any Liverymen, or of any of the mysteries, having a power to elect, until that 15 of Edw. 4, and we find from Edward the First, about two hundred years before, that there were twelve men in the Wards, that were electors, which we may well think to be the representers of those Wards, and chosen by them for that purpose; and no footsteps of the discontinuance of it from the time produced. But we may well say that all the records that mention the commonalty’s choice are to be interpreted by the former record, until that record comes wherein mention is made of Liverymen, there being no mention made of them formerly (under that or any other name) as such. * * *

As to the arguments from the consequences. If this government were not right, then (saith Mr. Hale) all the purchases you have made since that time you altered the way of elections, is null. I must humbly crave leave not to submit to his judgment in that till he give me better reasons; for I suppose it is grounded upon that of forfeiting a Charter, which was answered before; for though the body corporate have not had their officers rightly elected, yet the body is not thereby dissolved, and therefore their purchase may be good and without fear of forfeiture. * * *

And as for Mr. Wilde’s arguments concerning the danger that would ensue upon the multitude coming to elections, upon the same ground he may say the Wards must not choose their Aldermen nor Common Councilmen—if the citizens should be deprived of their right upon that ground that it is popularity—or they may be divided and fall to blows. Upon the same grounds they may take away the liberty of choosing Common Councilmen and Aldermen, and all their common freedoms. And if these fears shall affright men from the claim of their right, they may be told next that the sky may fall, and therefore they must not go abroad.

As for the last objection of Mr. Wilde’s, that in this way of popularity ’tis possible a choice may be made of unfit men, I shall only offer this to the consideration of the Court: whether it is more probable that a whole Ward meeting together to choose a small number of men that should represent them in the electing their superior officers, should choose more unfit men for that election than a Company, it may be, of Coopers, Tallow-chandlers, or other manual occupations should admit to the Livery (who admit all that will give so much money to be of the Livery). Who are the likeliest men to send fittest men for the choice, I humbly refer to the honourable Court—though it is strange to me to hear that the fear of popularity, or of giving way so much to the liberty of the people, is so much insisted on. Now we are come into the way of a commonwealth, it is a little dissonant to the present constitution. * * *

IX.

DIGGER PRINCIPLES

[1] The prefatory material presents the essential facts. In the course of an investigation of the City’s accounts ‘it was found that the chief officers had been very faulty; and thereupon it was considered how they were elected, and there arose the question about the right of electing the chief officers of the City. And it came into debate whether the Liverymen ought to be the electors, as now they are. Thereupon the Companies of London petitioned the Court that they might continue their elective power; and divers freemen of the City petitioned for the abolishing that power of the Liveries or Companies. * * * These were referred to a committee, and counsel for the Companies there heard, and Mr. Price in the behalf of the freemen. From thence it was referred to be fully debated before the Lord Mayor, Court of Aldermen, and Common Council. And on Saturday the 14th of December, the Court being sat at Guild Hall, the Companies brought for their counsel Mr. Maynard, Mr. Hale, and Mr. Wilde, gentlemen most famous in the profession of the law; and the freemen (besides Mr. John Price) had prevailed, by much entreaty, with Mr. John Wildman, as I am informed, without hopes of fees or rewards, to plead their cause.’ The arguments were taken down in shorthand. Though Wildman is here found in association with the Independent John Price (see above, p. 343), his speech is coloured by Leveller principles. The whole debate offers an interesting parallel in the municipal field to that in national politics carried on at Putney three years earlier.

[369. (a)]London’s Liberties; or a Learned Argument of Law & Reason, upon Saturday, December 14. 1650. Before the Lord Major, Court of Aldermen, and Common Councell at Guild Hall, London. Between Mr Maynard, Mr Hales & Mr Wilde Of Councellfor the Companies of London. And Major John Wildman and Mr John Price Of Councell for the Freemen of London. * * * This discourse was exactly taken in short-hand by severall that were present at the argument. . . . London, Printed by Ja. Cottrel for Gyles Calvert . . . 1651 [Dec. 19, 1650].

[371. (a)]Cook (thus throughout);

[(b)]Argier.

[373. (a)]Hales (thus throughout).