Appendix J: To Memorial XLI

MEMORIAL XLI.

Appendix J (1).

Resolutions of the court not to produce their records to the corporation commissioners.

" The Merchant Tailors' Company have passed resolutions refusing to submit to the Corporation Commission. (fn. 1) The Master and Wardens, after expressing their readiness to disclose their affairs to any competent tribunal, and their loyalty to the King, and detailing the reasons why they think that it is not within the prerogative of the Crown to compel the disclosures required, or within the power of the House of Commons to communicate such a privilege to the Crown, resolved—

" That this Court being satisfied that any information given by their authority to the Municipal Corporation Commissioners would be purely voluntary, feel that they cannot, consistently with the ancient and lawful oath taken by each individual on his admission to the Court of Assistants, disclose any matter which in their knowledge or judgment was not intended to be published.

" That this Court, in declining to give any information whatever to the Commissioners appointed under and by virtue of the Commission aforesaid, are desirous of assuring the Commissioners most respectfully that there is nothing in the history, constitution, or administration of the Merchant Tailors' Company that the members of this Court have, collectively or individually, any wish or interest to withhold from inquiry.

" That, on the contrary, it would be a source of gratification to them to have the opportunity of demonstrating the increased and increasing extent and utility of the charities which, as well by a due economy of their revenues, as by the munificence of several of their predecessors, members of this Court, they have been able to establish and to enlarge ; but they are actuated exclusively by two considerations —first, the oath of office, which they think precludes them from voluntary disclosures; and, secondly, the persuasion that the universal, though reluctant submission of all the Corporations in the kingdom to a Commission so manifestly unlawful, and, in their judgment, so inconsistent with the security of the property and rights of the subject, could not fail to be treated as a sanction to such an exercise of the prerogative, and to become a precedent full of danger to future times Wherefore, they conceive it to be the more especial duty of such of these bodies as have no favour to expect and no danger to fear, to meet this unlawful encroachment of power with unqualified resistance."

The resolutions were supported by the opinions of Sir James Scarlett, Mr. Follett, and Mr. Rennell.

Appendix J (2).

The opinion of Sir James Scarlett on the powers of the Commissioners.

"I am of opinion that the Crown cannot, by virtue of the prerogative alone, compel any subject to make communications or disclosures upon oath or otherwise, except in a due course of the administration of justice. The Crown may issue a Commission to hear and determine offences against the law ; and, in cases where the Crown is visitor of Ecclesiastical Corporations or Hospitals, it may visit, by special Commissioners, as well as by the Chancellor; but, even then, the visitatorial power must be called into action, like any other judicial power, by the complaint of some party grieved, to whom the ordinary means of redress have been refused, or by way of appeal from some domestic forum which has exercised its judgment upon a specific complaint. But I apprehend that a roving Commission to inquire for grievances, and to compel answers, even in cases where the Crown can visit by Commissioners, much more in cases where it cannot, is clearly contrary to law. As to Civil Corporations, therefore, I think that they can, in no respect, be compelled to make any answer to any Commissioners appointed by the Crown, touching any of the matters propounded in the queries, or within the scope of the Commission. There can be no civil liberty where the law that protects the rights and enjoyment of property, and of privileges or franchises, is not administered in a certain known course. It is a principle of the Common Law, which is ever favourable to liberty, that the King cannot administer justice except in his Courts, and by the Judges duly established. It is said by Lord Coke, that Courts of Equity exist only by prescription or by Statute ; that the Common Law is the inheritance of the subject ; and, therefore, that though the King may, by virtue of his prerogative, constitute a new Court and Judges to administer justice according to the Common Law, yet it cannot, without the authority of Parliament, constitute a new Court of Equity, or a Court Ecclesiastic. It follows that he cannot compel any person to make disclosures, even for the avowed purposes of justice, or the redress of grievances, except in the established Courts of Equity, or by Courts administering justice according to the Common Law.

"It is even said, by the same high authority, that the King cannot, by law, appoint Commissioners to inquire only, and not to determine. This is certain, that, by the Common Law, which is the right of the subject, no man can be compelled to disclose any matter that may expose himself to peril, except in a due course of justice. It seems to follow, therefore, that the Crown cannot appoint Commissioners for the mere purpose of compelling disclosures of any kind. Commissioners for inquiry may be the source of much useful information furnished voluntarily ; and it has been the usage to issue such Commissions either under the Great Seal or under the Sign Manual, in matters relating to the Departments of the Executive Government which are under the control of the King, or to the administration of justice generally ; but, in my opinion, it is not consistent with the law or the liberty of the subject, that Commissioners, appointed by the Crown to inquire into matters of property or franchise, or any other matters of grievances of which the King's ordinary Courts have cognizance, should be endued with a power of compulsion either for the disclosure of facts or the attendance of witnesses. The address of the House of Commons, as the law now stands, can add nothing to their validity. It is true that the House of Commons claims a power to enforce, by means of its own privilege, the attendance of witnesses and the production of papers and records before its own Committees of Inquiry ; but it is also true that the House of Commons cannot communicate that power to the Crown. Besides, the privilege of the House of Commons is not, like the prerogative of the King, reducible to any control of a Court of Justice, nor, perhaps, to any strict definition, and, therefore, it must ever depend entirely on the discretion and moderation of that Assembly whether that privilege shall be exercised for the real benefit of the people, or in a manner wholly inconsistent with justice or liberty, as it certainly must be whenever the House of Commons shall assume a jurisdiction which properly belongs to the ordinary tribunals. The known and lawful manner of inquiry into the misconduct of a Corporation, or into the improper exercise of its franchises, is by information in the Court of King's Bench, which can only be granted upon some specific charge or to redress some specific grievance. But a Commission from the Crown (and the same may be said of a Committee of either House of Parliament) for the avowed purpose of finding out matters of complaint against every Corporation in the kingdom, if it were armed with compulsory powers, would appear to me liable to all the objections which were justly urged against the quo warrantos of Charles II., without even regarding, as they did, the form of justice." (fn. 2)

Appendix J (3).

Franks' Controversy.

The King v. Merchant Tailors' Company, 2 Adol. and Ell.

The controversy of Franks and others, which is here referred to, needs more particular notice. Their first application (in 1831) was to the Queen's Bench for a mandamus to the Master and Wardens and their Clerk, calling upon them to permit the applicants "at all reasonable times to inspect and take copies of all records, books, papers and muniments, belonging to the Company." The Master and Wardens objected to the application, quoting in support of their views the advice of Sir Dudley Ryder (Attorney-General) in 1752, and the action of their predecessors in office when a similar request was then made (see Document 12, ante). The mandamus was refused. " The Master and Wardens (said Mr. Justice Littledale) who have the care of the documents in question are bound to produce them if a proper occasion is made out in a matter affecting the members of the Corporation ; but I think the members have no right on speculative grounds to call for an examination of the books and muniments, in order to see if by possibility the Company's affairs may be better administered than they think they are at present. If the Master and Wardens have been improperly elected (as the applicants alleged to be the case), the parties may move for a quo warranto, but they have no right to call for an inspection merely to see whether they can find any ground for further proceedings."

The King v. Attwood, B. and Adol., 480.

In January 1833 the same parties moved for a mandamus against the Master and Wardens, commanding them to assemble the whole company on the 24th June for the election of the Master and Wardens for the ensuing year, contending that the whole Company had the right of election from amongst themselves; but the Queen's Bench, without deciding this question, held that the proper remedy was not a mandamus but a quo warranto. In Michaelmas Term of the same year the latter writ was applied for against Master Attwood, upon these grounds:—(1) That the whole Fraternity should elect a Master from amongst themselves. (2) That he was not so elected, but by a portion only from themselves who are self-elected and uncertain in number. (3) That this is repugnant to the Charters, and narrows the electors, (4) and those eligible for election. (5) That Attwood was elected according to usage by the Court of Assistants. (6 and 7) That no bye-law or legal usage authorizes such a mode of election, and (lastly) that Attwood was not elected according to the Charters, having been elected by a select body out of a select body, which no bye-law sanctions or could legally sanction.

Master Attwood justified his election on these grounds : That the same mode of election had existed for 340 years and upwards. That the Court of Assistants is a body elected from Freemen and Liverymen, and has existed from the earliest times ; that the Master and Wardens have always been Freemen, but not always members of the Court of Assistants. That the present custom of election had been lawfully established before, and existed at the time of granting the Charter of Henry 7th, which confirmed all the then existing franchises. That the Court of Assistants is limited to 40, and has never fallen below 24. That when below 40, Wardens are elected from the Freemen, and shortly after chosen on the Court, but when the Court is full the Wardens are elected from amongst its members.

In argument the applicants rested their objections to Attwood's appointment mainly upon these two grounds (p. 502) :—1st. That the number of electors is improperly limited; and, 2nd, that the body of persons eligible for office is also narrowed by the bye-law on which (it was assumed) the practice as to these elections must be based; but the Queen's Bench refused to grant the quo warranto on either of these grounds.

"The Charter of Richard 2nd (said Mr. Justice Littledale) empowers the Fraternity to elect a Master and Wardens 'de seipsis,' but does not prescribe the mode. For that we must refer to usage. Now the usage as far back as 1488 appears to have been for the Master, Wardens and Assistants, who had served the office of Master to elect the Master. The Charter of 18 Henry VII. (1502–3) confirms former usages, and therefore the question is whether this usage was valid?"

Dealing with the first objection, it was clear that the number of electors may be restrained by usage or by law. And, as the second, admitting that a usage or by law, which restrained the number of persons eligible, and prevented the choice from being made out of the general body of Freemen, would be bad, (fn. 3) yet that the evidence produced went to show that the choice had generally been made out of the limited body, yet the practice had not been uniform. "The practice of electing from a particular body is not necessarily referable to any bye-law or usage. The parties may have chosen so to elect, but no inference arises that they were bound so to do" (p. 508).

Thus defeated in the Courts of Law, they appealed subsequently by petition to the House of Commons, but failed to secure support. The Debate is reported in Hansard, vol. xv. (3rd series) pp. 1030 and 1114.

Appendix J (4).

As to the annual appointment of officers.

According to the custom of the times very many offices in the gift of the Company were disposed of or provided for during the life of the then occupant, i.e., in reversion. (fn. 4) In 1589, Sir Francis Walsingham solicited the reversion of the Clerk's place for Mr. Henry Fortus, with what effect I do not know. As King James I. wanted the Clerkship for one "Laurence Lowndes," the Secretary of State (Sir George Calvert) wrote for the reversion of it " when it shall happen next in your disposing, either by death or otherwise." To this letter of the 3rd March 1622, the Master and Wardens returned a verbal answer on the 8th of April, that by their oaths they could not repeal a former order made for the restraint of any gift in reversion of the Clerk's place, and the Court on a show of hands adhered to the order. A second letter coming from Sir George Calvert (16 May) for the same object, the Court went to the ballot box on the order, and then petitioned the King (begging of a Liveryman, one George Wynn, to ask his brother-in-law, Sir George Calvert, to be a mediator for the Company) to secure to them the free election of their Clerk.

In 1624, the Clerk became "dangerously sicke and not like to recover," whereupon Mr. Secretary Conway, on the 12th and 14th, and the Duke of Buckingham, on the 13th September, wrote from Haveringe, most urgently in favour of Lowndes. A Court appears to have been held on the 17th, at which " Mr. Cawdell, one of the Prince's gentlemen came," to urge the same suit, but he was disposed of by an evasive answer, and a Committee formed to petition for the free choice of their own Clerk, according to their Charters.

The King's reply of the 24th September was that if they would elect Lowndes, he " in his princely grace would be careful not to break their Charters." The election being about to take place, Mr. Cawdell came to the Court and presented a second message from Prince Charles, whereupon the Court returned a petition to the Prince for a free election, who answered their petition through Sir Francis Cottington on the 26th, that he had no intention of infringing their Charters, for he wanted Lowndes to be freely elected.

" The Court, entering into consideration touching the Clerk's place, do think fit and so order that the Chief Clerk of this Company shall be yearly elected by this Court, to continue therein during the Company's pleasure." The election was then proceeded with, when out of 20 suitors they selected 9, and out of these Lowndes and Clement Mosse, but ultimately elected Mosse " during the pleasure of this Court."

Other places—as the cook's in May 1613, by Princess Elizabeth, (fn. 5) and in November 1663, by Charles II. (Catalogue of State Papers); and lastly, Head Mastership of the School, by James II., on 15th April, though withdrawn (at the instance of Sir W. Dodson, the Master of the Company) on the 31st May 1686 (Wilson's History, vol. i., p. 384)—have been solicited.