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ID	Title	Author	Corrected Date of Publication (TCP Date of Publication)	STC	Words	Pages
A38869	An exact account of the trial between Sr. William Pritchard, Kt. and alderman of the city of London, plaintiff, and Thomas Papillon, Esq, defendant in an action upon the case at the sessions of nisi prius holden for the Court of King's Bench at the Guild-Hall in the city of London, on Thursday the 6th of November, 1684, in Michaelmas term, in the 36th year of the reign of King Charles the Second, before Sir George Jefferies, Kt. and Baronet, then Lord Chief Justice of the said Court of King's Bench : to which is added, the matter of fact relating to election of sheriffs, as it was printed in the year 1682.	Pritchard, William, Sir, 1632?-1705, complainant.; Papillon, Thomas, 1623-1702, defendant.; England and Wales. Court of King's Bench.	1689 (1689)	Wing E3587; ESTC R12402	61,421	42

Have you done Gentlemen or will you call any more Witnesses Mr. At. Gen. We rest it here my Lord till we hear what they say to it L. Ch. Just Come then what have you to say that are for the Desendant Mr. Serj. Maynard May it please your Lordship and you Gentlemen of the Jury I am of Counsel in this Case with the Defendant Mr. Papillon I see Gentlemen it is a Cause of great Expectation and by that means they would make it greater by far than indeed it is in it self But I suppose you who are upon your Oaths to try this Issue will duly weigh and consider what it really is Gentlemen the Record tells you what it is an Action upon the Case wherein the Plaintiff declares that the Defendant did arrest him being then Lord Mayor without any probable Cause and out of Malice Now as to that Gentlemen I conceive and think I may appeal to my Lord Chief Justice in it for Direction in point of Law that my Lord Mayor if he do mistake in his Office and do not do that which belongs to him to do he is as much subject to the Process of Law and Actions as any private Person in the City of London If he does any Man an Injury or does that which is not right in his Office by which another Person is grieved he is liable to the Prosecution of any particular Subject the King has that is so grieved by him Then they alledge that this particular Action and Arrest thereupon was prosecuted and done out of Malice and without probable Cause Now what have they proved of that They prove the thing done that he was arrested at the Defendant's Suit and that he was kept in Custody six hours But if we can give you any account of a probable Cause for it that is sufficient to justify as from this Action Gentlemen the Question that you are to try is not Whether this Man or that Man were duly chosen into such an Office but whether there were any probable Cause for the Defendant to contest about the Choice And herein the Case will fall out to be thus There was a difference in the City of London as is very well known to every body about the Choice of Sheriffs for the City wherein the Defendant was one of the Competitors there were upon the Nomination and Election in the Hall a great many more Voices or Suffrages for one than for the other which was certified to the Court of Aldermen and Lord Mayor as is usual but some Contest being a Poll was demanded and granted and upon that Poll my Lord Mayor was pleased to declare the Election on one side against Mr. Papillon who yet was apprehended by the first Choice to be one that had most Suffrages But several Meetings there were and several Common-Halls assembled so that it was a contested matter and as I said there had been a Report made on the Defendant's behalf We insist not upon the Right of Election that has been otherwise determined But when he is put in Nomination by the Electors in the City and has many Suffrages and he conceives himself rightly chosen and they that are the Managers of the Election give such an account that in their Judgment he was chosen that surely was a probable Cause for him to proceed upon it And if there be but a probable Cause to bring this to a Question no doubt he might very well take the course the Defendant took Here is no Arrest without legal Process nay their own Witnesses say there was an offer to take an Appearance without putting it on so far as an Arrest If my Lord Mayor would have but given an Appearance there had been an end but he did not think fit to do that and so the Process of Law was executed upon him Then here is the Case in short A Man thinks himself rightly and duly chosen into an Office and has probable reason so to think for the Judges of the Election think so too and deliver that as their Opinion so that tho he is mistaken as the Event proves yet he is not alone in his Mistake nor without ground of his Apprehension then if it be under favour such a Man has no other Proceedings to take in the World for settling this matter but to appeal to your Lordship and that great Court where your Lordship sits to have a Writ to command the Mayor or other proper Officer to swear such a Man into the Office or shew good cause why he doth not If the Mayor upon the Receipt of the Writ thinks fit to obey it and swears the Man all is well If not he must make a Return of the Writ with the Cause why the Command of the Writ is not obeyed Now the Suggestion of the Writ is that he was duly chosen into such an Office and therefore he had a fair way to put this matter to an end if he would have returned he was chosen or not chosen there had been an end of the business which he ought under favour to have done in Obedience to the King 's Writ What then follows upon his not doing so the Party that is grieved hereby has no other course to take but to bring his Action against the Mayor for it This course the Defendant took by taking out a Writ against the Plaintiff and what was the Effect of that Writ It is indeed charged here by the Counsel on the other side that there was a Design of a discontented Party in it and I know not what and a great deal of stir made that a Coroner of the City of London should arrest my Lord Mayor It may be it was not so reverently done but yet if he thought he had good Cause of Action against him he might do it lawfully Doth this prove to you that this was maliciously and unreasonably done Malice must be to the Person Zeal and Earnestness to have Right done to a Man's self or another in a legal Course of Justice is not Malice nor will make the Prosecution of the Action unreasonable and groundless Have they proved to you Gentlemen any particular Discontent and Malice that was between the Plaintiff and Defendant No truly I think by all the Proof that has been offered the quite contrary does appear The Defendant took out a Mandamus directed to the Plaintiff which was not duly returned What then doth he do next Doth he most violently arrest him that with Submission he might do and no Offence in Law No but he doth not do it but only desired from time to time as we shall prove anon that he would but give an Appearance that would have put a Conclusion to this Dispute There is no Appearance given whereupon he is arrested and detained in Custody six hours If a Man be once in the Officers Hands taken upon legal Process how long soever the Officer keeps him is not at all to be laid upon the Person that brings the

they deserve That which is urged Gentlemen by way of Crimination in this Case against the Defendant and an unjust as well as foreign Reflection not at all concerning the Cause is as if the Defendant were acquainted with the Insurrection and Conspiracy that was intended against the King's Life and for subversion of the Government and procured the Plaintiff then Lord Mayor to be arrested to further and promote that Insurrection But as that was insinnated only for Reflection's-sake so I hope you Gentlemen will be pleased to take notice that not one word of any such thing is proved at all that the Defendant ever knew of any intended Insurrection nor that this was done with any such Design For even their first Witness Keeling from whose being imployed by the Coroner in the Execution of the Writ upon Sir William Pritchard the Plaintiff they would argue that somewhat else was designed in it doth give a positive denial of any such thing now upon his Testimony here And Mr. Papillon the Defendant never knew him in his Life nor imploy'd him in this Business nor ordered that he should be imploy'd in it nor ever saw him but the Coroner gave him his Warrant to execute If therefore Keeling and Goodenough were concerned in any ill Business and have taken upon them to do that which they ought not to have done that doth not signify any thing in this Case nor ought to turn to the Defendant's prejudice Nor if any thing were done by the Officers that were to execute this Process that were a Misfesance or a Male-execution of their Office that ought not to be imputed as a Fault in the Defendant But for this Matter now before you the Case will depend upon this Point chiefly Whether the now Defendant had a reasonable Cause or probable Ground to bring an Action against the Plaintiff at the time when it was brought and this Arrest made For there is many a Man that at the Commencement of his Action doth conceive in himself he has a good probable Cause of Action against another Man that in the Event of Things finds he was mistaken and hath no such Cause and thereupon desists the Prosecution of it Therefore the Probability of the Cause at the time-when this Fact was done is the Question you now are to try For we are not now considering whether that probable Cause did continue and prove a good Cause the Event of this Matter has proved it quite otherwise Indeed the Original Question of this whole Cause was Who were only Elected Sheriffs And that at the time of such Election made a great number of Votes passed for the Defendant is I think very notorious both upon the lifting up of Hands and upon the Poll. These things we shall offer to you and shall make it out that these gave occasion to the Defendant to contest the Election and consequently to the bringing of the Action that the Plaintiff was thus arrested upon If then there were such things as these that we have opened which gave a colour to controvert the Right and the Defendant pursued the Method prescribed by the Law to bring it to a Determination and there was no particular disrespect or incivility offered to my Lord Mayor then sure there was no reason to bring this Action against us And that there was no indecent behaviour used towards the Plaintiff doth appear from the Evidence that hath been given of the whole Transaction All that was desired of my Lord Mayor was but an Appearance For this was indeed an Action that did not require Bail but an Appearance though I must needs say I never knew any one so averse to give an Appearance to an Action as the Plaintiff was for after a Latitat and Capias taken out and being frequently acquainted with it and at length upon application after the taking out of the Alias Capias and many Attendances with all the deference and respect imaginable both to his Person and Office not so much as a bare Appearance could be obtained Upon the opening of the Declaration and the Cause you have been told of the great Dangers that were in the Case as to the infringement of Publick Peace and the Government which has been very much aggravated on the other Side But had the reasonable Request of the Defendant by his Attorney or the Officer so often repeated been but complied with it had been but sending to any Attorney and ordering an Appearance and then I hope the Peace of the Kingdom had been in no Peril from such a Design as this Arrest Which I would not have mentioned nor should have taken to be at all concerned in the Issue now before you to be tried but that I find them to be taken into the Question when I hope you will consider they are no way material to the Point in Controversy Now Gentlemen in our Defence against this Suit of the Plaintiffs we shall call our Witnesses to prove what we have opened And our Defence will be in these Steps First To shew the inducement to our Action against the Plaintiff which will shew there was a probable Cause Secondly Give an Account of the reverent Carriage and Behaviour towards the Plaintiff in the prosecution how with reiterated Applications it was only desired that the Plaintiff would give an Appearance which he was not pleased to do and that thereupon with great civility the King's Writ was executed as indeed I see no Proof to the contrary For neither the Coroner nor those other People that gave their Assistance to him were at all rude in their Carriage to my Lord Mayor but as soon as the Arrest was made they were all turned off and the Coroner staid alone with my Lord and went with him in his Lordship 's own Coach to the Skinners-Hall which was the Coroner's House Neither was there any thing ill done after all this was past For upon the Plaintiffs appearance the now Defendant declared in his Action and intended to pursue it but it happened that afterwards in a short time these things suffered some debate in a Trial that was here about a Riot at this Election where the Question of the Right and Election was determined on the other side which gave the Plaintiff in that Action the Defendant in this satisfaction that he was in a mistake and so he thought fit to discontinue that Action and proceeded no further L. Ch. Just No Mr. Ward that was not the Question determined then Mr. Ward My Lord I humbly conceive the Issue of that Cause did determine that Question L. Ch. Just No no I tell you it was not the Question Mr. Ward I must submit it to your Lordship L. Ch. Justice I perceive you do not understand the Question that was then nor the Question that is now You have made a Long Speech here and nothing at all to the purpose you do not understand what you are about I tell you it was no such Question Mr. Ward My

my Lord they did not Mr. Sol. Gen. Did any of them and which pray Keeling Sir I will tell you who did come to my Lord Mayor's There was the Coroner Francis Goodenough Ferdinando Burley and my self And after my Lord was arrested the Coroner bid us be gone and he would look after my Lord Mayor Mr. Sol. Gen. Whither did you go after that Keeling I went to Sir Harry Tulse's directly Mr. Att. Gen. Did not you expect an Opposition and had you not some discourse what you should do in case there was an Opposition Keeling No I cannot tell any thing of that Mr. Att. Gen. You say there was a Meeting or Consult at Russell's of forty People Had you not there some Consultation what was to be done if my Lord Mayor did not obey the Arrest Keeling I do not remember any thing about that at that time Mr. Att. Gen. Was there at any other time before or did you hear any of those People discourse the Goodenoughs or any of them what they would have done in case they were resisted Keeling I do not remember any Discourse of any such thing before or after L. Ch. Just Pray Mr. Keeling let me ask you a Question or two Were you ever imployed by the Coroner to be a special Bailiff to arrest any Body before this time you speak of that you arrested Sir William Pritchard Keeling No my Lord I never was L. Ch. Just Then pray recollect your self who were at that Meeting when-as you say your Name was put into the Warrant for this Arrest Keeling My Lord when I went away for a little while I left these Persons particularly that I did name the two Goodenoughs and one Burton I think and one Crompton and that Tallow-Chandler there were to the number of thirty or forty that I did not know their Names L. Ch. Just But pray how came you to be imployed in this Service then Were you a Tradesman in Town then Keeling Yes in Wapping L. Ch. Just Good now how came you to be employ'd in arresting my Lord Mayor more than any other of those thirty or forty that you say were there then Keeling I went there among them but did not know then that I should be concerned in this Business and I went away a little while and when I came back they told me that my Name was put into the Warrant L. Ch. Just Pray tell us the whole Story How you that were a Tradesman at Wapping should come to be imploy'd as a Bayliff to the Coroner of London to arrest my Lord Mayor there must be some particular End in it Mr. Att. Gen. Mr. Keeling tell the Court and the Jury the whole Story and what it was that brought you into this Keeling My Lord Mr. Goodenough told me I must be concerned L. Ch. Just Ay prethy tell us what Goodenough desired you to be concerned in Keeling Upon my coming back to the Company that was at Russell's Mr. Richard Goodenough told me I must be concerned in the Business of arresting my then Lord Mayor Sir William Pritchard Said I to him Mr. Goodenough this is foreign and remote to my Business to be concerned in such a Matter as this it will seem very strange for me to do it He prest it upon me to do it and says he if you will not do it you will be a Man look'd ill upon and it will be taken strangely from that Party he meant I suppose the Discontented Party the Faction or what you please to call it that were not contented with the administration of the Goverment in the City at that time and he urged it upon me with a great-many Arguments I opposed it with much vigour a good while but at last he prevailed upon me to go along with the Coroner and Frank Goodenough his Brother said he would go with me and he did so and we came and arrested my Lord Mayor as I told you before L. C. Just Where did Mr. Goodenough press you to be concerned in this Business as you say Keeling At Mr. Russell's a Cooks in Ironmonger-lane L. Ch. Just How came you thither Keeling He sent me a Letter to meet him there He was at me before to be concerned in it but I did not comply with him in it Mr. Richard Goodenough it was and Mr. Ashurst I think it was Alderman Cornish's Son-in-Law was by L. Ch. Just Was Nelthrop there Keeling No my Lord he was not there but they did not proceed then because my Lord and his Brethren were gone out of Town to wait upon the King I think And this was six weeks or two months before this Meeting at Russell's Mr. Sol. Gen. Pray Mr. Keeling recollect your self Had you any discourse with Goodenough or any body else what the Consequence of such an Arrest would be Keeling They told me my Lord Mayor and Court of Aldermen had made an ill Return to the Mandamus's that were served upon them for the swearing of Mr. Papillon and Mr. Dubois Sheriffs and therefore Mr. Papillon and Mr. Dubois had good Cause of Action against them and Goodenough said he had order from them to Arrest my Lord Mayor upon an Action and desired me to be concerned Mr. Sol. Gen. But pray remember what you said before Mr. Keeling Why should the discontented Party as you call them be concerned and be Angry with you if you did not arrest my Lord Mayor Keeling The particular Argument that he used with me to perswade me to it was this That I having a Trade and Dealing among that sort of People they would think ill of me I did not do it Mr. Sol. Gen. But why should the Party be angry with you if you were not a Bayliff to Arrest my Lord Mayor at the Suit of Mr. Papillon Keeling I did not know the Reason of their Anger he might have something in his Head that he did not reveal to me But that was the Argument he used The Party would think ill of me Mr. Serj. Maynard If you have done with this Witness I would ask him a Question You say Sir that Goodenough told you the Discontented Party would be angry with you if you did not do it Upon your Oath was the Discontented Party named Keeling No Sir but that Party of which Mr. Goodenough and I then was and they were the Discontented Party I think for they were so discontented that they would have killed the King and the Duke Mr. Att. Gen. That is an Answer I hope to your Question Mr. Serjeant L. Ch. Just I think when he names the Goodenoughs to be of the Party nobody questions but they were discontented Mr. Sol. Gen. He has explained well enough sure what he meant by the Discontented Party those that were so discontented that they would have killed the King and the Duke Those were the Promoters of this Action and Mr. Keeling must engage in it or they would be displeased Now my Lord we shall call Sir. Henry Tulse

and Sir Robert Jefferies to shew what the Coroner did Keeling I arrested Sir Harry Tulse afterwards Then Sir Harry Tulse was called Mr. Ward My Lord we desire Sir Harry Tulse may not be sworn we have an exception to his Testimony L. Ch. Just What is your Objection Mr. Ward We are informed he and the rest of the Court of Aldermen have joined their Purses to carry on this Suit and then with Submission he is not a good Witness L. Ch. Just Ask him that Question upon a Voyer dire Then he was sworn upon a Voyer dire Mr. Williams Pray Sir is there any Order of the Court of Aldermen to lay out Mony for this Cause out of their Joynt Purses or the Publick City Stock Sir H. Tulse Not that we know of Mr. Williams Pray Sir do you know whether Sir William Pritchard laid out Mony in it or who else doth Sir H. Tulse I cannot give a Positive Answer to that who layeth out Mony upon it nor do I know of any such Order as you speak of Mr. Ward Sir Harry Tulse tho' you know of no such formal Order of the Court of Aldermen yet is there not some direction by the Court of Aldermen about Expending Monies in a joynt way Sir H. Tulse I assure you Sir I know nothing of it L. Ch. Just Come he has given a full Answer to your Question swear him Which was done Mr. Holt. Sir Harry Tulse now you are sworn Pray will you give an account of what happened about this Matter within your knowledg Pray tell the whole Story Sir H. Tulse My Lord about four of the Clock in the Afternoon this Gentleman and two more came to me to my own House and he did arrest me I mean Mr. Keeling that was sworn here before me at the Suit of Mr. Papillon and another of them did arrest me at the Suit of Mr. Duboys Said I to them I do not know that I owe them or either of them a Farthing But what must I do He told me It was only to give an Appearance Said I Gentlemen I shall consider of that Then says he you must go to my Lord Mayor Why where is he said I said he He is in the Custody of the Coroner at his House Where said I He is gone to Skinners-Hall said he This is well said I. So I called for my Man to bring my Cloak Then they told me If I pleased they would take my word till to morrow morning if I would promise to appear I told them they might do as they pleased So they left me and I went first to my Lord Mayor's House but found him not there so I went down to Skinners-Hall and there I found my Lord Mayor all alone and no Alderman only the Officers I asked his Lordship how he came there He told me he was arrested by the Coroner I asked him how long he had been detained and he said but a little time And indeed I think it could not be long for I met his Coach coming back from Skinners-Hall when I went. After that he was detained there till about Eleven of the Clock or thereabouts This is all I know of it L. Ch. Just What became of the Government of the City all that Time Sir H. Tulse There was presently a great Noise all about the City concerning my Lord Mayor's being arrested and abundance of People were gathered together about the Door but there came a Company of Souldiers of the Trained Bands and they kept all quiet There were great apprehensions of an Uproar I saw nothing of hurt done tho And I asked Mr. Brome the Coroner who was by Am I a Prisoner too for I was arrested to day by a Warrant pretended to be from you Says he I have a Writ against you and now you are here I cannot let you go till you have given an Appearance So I took my self to be detained there with my Lord Mayor in Custody and staid as long as he staid and went away with him Mr. Recorder Swear Mr. Wells the Common Cryer and Sir John Peake Mr. Wells was sworn Mr. Recorder Mr. Common Cyrer were you at my Lord Mayor's House when this Hubbub was made pray tell my Lord and the Jury what you know of it Mr. Wells Yes I was there Mr. Holt. Then tell what past Mr. Wells I was not in the Hall where my Lord Mayor was but in another Room by and the Officers came running in to me and told me I must come to my Lord Mayor quickly for he was arrested by some People When I came I found there were none of the Sheriffs Officers that used to arrest People but the Room was full of other Persons My Lord Mayor bid me take the Sword and go along with him for the Sword-bearer was not just then at hand I asked his Lordship whither he was going The Coroner said he was his Prisoner and must go along with him to his House My Lord Mayor bid me presently send out the Officers to summon a Lieutenancy which I did I desired the Coroner and his Men to be gone said I cannot you let my Lord alone and go about your Business No he said except my Lord would give an Appearance he must go along with him I then asked him whither my Lord must go He said he had no place but his own House to carry him to and thither we went where when we came my Lord was put up into a little Room by himself where were none but my self and the Coroner as I remember My Lord Mayor bid me go and see for Sir James Edwards and Sir Harry Tulse and my Lord Mayor that now is and so I went but I found they were arrested too before I came L. Ch. Just How did my Lord go away from thence Mr. Wells In his Coach. Mr. Att. Gen. Were you by when he went away and who was there Mr. Wells Mr. Brome the Coroner was not there when my Lord Mayor went away but there was Goodenough L. Ch. Just Ay he was in trusty hands upon my word Mr. Attorn Gen. The Souldiers prevented the Design and so they let him go again Mr. Recorder Swear Sir John Peak which was done Sir John what can you say to this Business Sir J. Peake My Lord I had order from the Lieutenancy to raise my Regiment upon the news of my Lord Mayor's being arrested which I did in a very little time and came with my Souldiers to Skinners-Hall where I heard my Lord Mayor was and prevented any Stir as it was feared there would have been But Mr. Keeling I believe can tell something more of the Design than he has spoken for I remember at the Trial of the Traitors at the Old Baily he did say that after my Lord Mayor was arrested they did intend something but their Hearts misgave them when the Regiment was up Lord Chief Just That is nothing to this Cause what he said there now he remembers nothing of it

Suit that is to be looked after by the Officer himself Whatsoever was the Usage in that matter we are not to answer for tho it is plain an Appearance would have done all presently we shall prove we gave order to use all Deference and Respect in the World. And besides tho I could not speak it to invalidate any of the Evidence given about the Right of Election one way or other yet there being a Return of the Defendant's Election by the Sheriffs to the Court of Aldermen but they being of another Opinion gave Order that those that thought themselves aggrieved should take their Remedy at Law Which Order we have pursued in that regular course that the Law has prescribed And I hope it will never come to that that a Man tho mistaken conceiving himself to have a Right of Action and suing out the King 's Writ shall suffer for so doing unless particular Malice be made to appear Here is a great Noise of Damage and Disrepute and Disgrace to the Plaintiff and his Office and he has been pleased to reckon his own Damages at 10000 l. We say he has sustained no Damage by any thing we have done but we are quite not guilty of this unreasonable and malicious Prosecution laid to our Charge And that we are not guilty the matter that has been opened we think will sufficiently declare For if there were a Contest about the Election and the Sheriffs returned it as their Opinion that the Defendant was chosen tho they and he too were mistaken yet that might give a probable Ground for his pursuing the course he did take and the very Court of Aldermen and the Lord Mayor bidding them take their Course at Law we sure shall not be punished for it We did not prosecute our Question in any malicious way but in that Course that the Law allows by taking out the King 's Writ and we hope the Law will protect us for it Mr. Williams Will your Lordship be pleased to spare me a Word on the same side with Mr. Serjeant Maynard I am of Counsel Gentlemen with Mr. Papillon the Defendant in this Action We do not insist upon it nor now offer any thing-to assert our Election We did apprehend we were Elected but that is ruled against us and we rested satisfied with it But we come here now before you upon this Question Whether we had any probable Cause of Action upon which we might take out this Process mentioned in the Declaration which is a Capias upon a Latitat And we do insist upon it that this Action of the Plantiffs must fall upon the Issue joined if we can satisfy you and shew that is was not malicious and without probable Cause And though our Cause of Action against the Plantiff falls out in the Event not to be a good and sufficient Cause yet if it were probable it will evade this Action and that is all we labour for They do not attempt to prove at least-wise I have not heard any thing of it that there was any express Malice any thing either said or done by the Defendant more than the causing him to be arrested upon this Writ It is very well known it was in the City of London a very much controverted Question Whether Mr. Papillon and Mr. Dubois or Sir Dudley North and Mr. Box were chosen Sheriffs of London I would not run over the History of it it is but too well known and remembred the Divisions that were in the City about it Some were so much dissatisfied with the swearing Sir Dudley North and Mr. Rich Sheriffs as thinking them not duly Elected that they would have the Court of King's Bench moved for the Writ of Mandamus to swear Mr. Papillon and Mr. Dubois This Mandamus was moved for and granted and to this Writ the Mayor and Aldermen to whom it was directed made a Return that we were not Elected Sheriff of London which Return was apprehended to be false and really to try the Truth of this Return was the Action brought against the Plantiff A Man that is injured by a False Return hath indeed no other way to right himself but by bringing an Action against them that made it Upon this Action brought I hope you are satisfied Gentlemen from the Evidence that has been already given the Defendant proceeded regularly and orderly in a decent manner applying himself to get an Appearance to his Action And we shall prove he did so For first he took out a Latitat against my Lord Mayor and by the Attorney gave him notice of it and desired an Appearance so that the Question in dispute might come to some determination But he was not pleased to give us an Apperance to that Writ so we took out a Capias gave him notice of it and desired an Appearance but could have no Appearance whereupon we took out an an alias Capias which is the Writ mentioned in the Declaration and the Coroner who has been named was then told he should be called upon to make some return to his Writ which he acquainted my Lord Mayor with and desired him to give an Appearance which he refusing to do the Officer was constrained to arrest him to execute the King 's Writ and you hear how he treated him with all the respect and carried him to his own House where he staid some hours and then went away All this time were we satisfied with what was done we expected no more than an appearance which at last was given Upon that Appearance we did declare in the beginning of Hilary or Easter Term 83. But it fell out that in Easter Tearm 83 there was an Information for a Riot upon Midsommer-day before about this contested Election came to be tried And that coming to Trial 10 Maii and being found to be a Riot and the Sheriffs sworn to be duly elected thereupon we were abundantly satisfied that we were mistaken and under misapprehensions and that our Cause of Action would not hold and we did discontinue it Indeed if we had prosecuted our Action after that it would have been more like an Angry and a Silly Prosecution and the whole have had a worse Construction than the thing in it self would bear But when we found the Opinion of the Court to be against us about our Election we immediately discontiued our Action Gentlemen we shall prove these to have been our Proceedings and that I hope will satisfy you we are not guilty according as we have pleaded Mr. Ward May it please your Lordship and you Gentlemen of the Jury I am of Counsel on the same side for the Defendant and desire to be heard one word as to some Things that have been said on the other side in this Cause There have been some Questions asked that do very much reflect upon the Defendant and which I would take out of this Cause I shall take notice first what the Questions were and then give them that regard and answer which

of it He pressed them then earnestly to know what he should do Said they you are to desire an appearance to the Action and if he will give it take it and remember my Lord Mayor is the Chief Magistrate of the City and 'pray ' carry it with all respect and regard imaginable to him Mr. Williams You say Sir they bid him to take an appearance if he could get it Mr. Cornish Yes and they declared That their design was only to bring it to an Issue to be Tryed and they would not insist upon any thing but an appearance if it might be had Ld. Ch. Just Wonderful Careful and Civil they were no doubt of it Mr. Cornish This is the Truth and the whole of the Truth that I know of relating to this matter Ld. Ch. Just Mr. Cornish you speak of some of the Aldermen that he said he had been with What Aldermen were those Mr. Cornish There were several of them that he said he had Writs against Ld. Ch. Just You were an Alderman then 'pray ' had he any Writ against you Mr. Cornish I know not whether he had or no. Ld. Ch. Just But he did not require an appearance of you I suppose Mr. Cornish If he had I must have taken notice of it to defend my self as well as I could Ld. Ch. Just Ay no question but you would but were you asked for an appearance or no Mr. Cornish I was told I should be sued among the rest Ld. Ch. Just. But was there any Writ shewn to you Mr. Cornish No my Lord. Ld. Ch. Just Then 'pray ' let me ask you a question or two Did you ever know any man before bring an Action or Sue to be Sheriff of London You have been Sheriff your self we know Mr. Cornish This was a matter that had been much disputed in the City and a question had been depending upon it whether the Right was in my Lord Mayor or in the Sheriffs Ld. Ch. Just. But the question of Right between my Lord Mayor and Sheriffs what was that to Mr. Papillon Did you ever know a man bring an Action or Sue to be Sheriff Mr. Cornish Truly he that experienceth the trouble of it will I believe never be desirous of it Ld. Ch. Just But that is no answer to my question answer me directly Did you ever know any such thing before Mr. Cornish I never did hear of any such that I know of Ld. Ch. Just How then came Mr. Papillon so officiously to desire it Mr. Cornish I cannot answer what his Reasons were I know not Mr. Williams It was an Action to determine the Question that was at that time so much litigated in the City of London Mr. Att. Gen. Mr. Cornish 'pray ' will you answer me one thing Were you never in no Company wherein it was agreed this Suit should be brought and carried on in their names Mr. Cornish Mr. Attor Gen. I never meddled nor managed it Mr. Att. Gen. Did you never here it was so agreed Mr. Cornish It is known to Thousands as much as I know of it the matter was disputed of in all Companies in the City Mr. Att. Gen. But you do not answer to my question were you ever in any Company when it was agreed that so it should be Mr. Cornish Sir I tell you as well as I can the matter that was to be disputed by that Action was the general discourse of all Societies of men whatever in the City at that time Ld. Ch. Just It is a strange thing that one cannot get a direct answer from these People to any thing one asks them I desire to know one thing of you Mr. Cornish You have known Mr. Papillon the Defendant before this time Mr. Cornish Yes my Lord I have known him several years Ld. Ch. Just Was he ever chosen Sheriff of London before Mr. Cornish Yes my Lord I suppose he was Ld. Ch. Just How chance he did not hold then Mr. Cornish I have heard he Fined as was common and usual when Persons occasions would not permit them to attend the Service of the Place Ld. Ch. Just He did so it is known to thousands as you say that he did Now 'pray' let me ask you another question was Mr. Bethel ever chosen Sheriff before that time you and he were Sheriffs together Mr. Cornish I do not know that he was chosen before Ld. Ch. Just How is that Mr. Cornish My Lord I do not understand what the question is or else I know nothing of it Ld. Ch. Just How did you never hear of that before For Mr. Cornish I do not speak of a thing that no body knows alas thousands and ten thousands of people know that too Mr. Cornish My Lord upon my Oath I do not know that ever he was Ld. Ch. Just Did you ever hear it Mr. Cornish I do not know that ever I did Ld. Ch. Just Did you never hear that Mr. Bethel swore himself off as they call it you know what I mean. Mr. Cornish I do not remember any thing of it Ld. Ch. Just Nay nay it is to the matter I assure you Mr. Cornish whatever you think of it I ask you then another question that lies something nearer your memory Upon your Oath when you two were Elected upon Midsummer-day was not that Election vacated and you chosen again within a Week or some little time after And was it not because you had not taken the Sacrament and the Corporation-Oath Mr. Cornish My Lord I do remember there was a second Election Ld. Ch. Just And we remember it too well enough Mr. Cornish That was so lately that any Citizen of London or any one that lived here may remember the Passages of those Times Ld. Ch. Just And you have as much cause to remember it as any man I assure you for several reasons that I know Mr. Cornish My Lord I think I have reason to remember it Ld. Ch. Just Least you should forget it I will enlighten you and refresh your Memory a little I ask you again upon your Oath Was not your first Election set aside because you had not taken the Oaths and the Sacrament Mr. Cornish There were two Elections my Lord I say I do remember Ld. Ch. Just. Sir do not prevaricate with me I expect a positive answer Was not that the reason upon your Oath Mr. Cornish I cannot say that was the positive reason Ld. Ch. Just Then I ask you upon your Oath had you taken the Oaths and the Sacrament as the Law requires Mr. Cornish My Lord Mr. Bethel was a stranger to me I did not know him before that time Ld. Ch. Just Gentlemen Men must not think to dance in a Net and blind all the World. As to my one self I know these things very well without any of their assistance and I only ask these things by the bye to let the world be satisfied what sort of men these are that pretend to Saintship and yet you see one

Sir Dudley North then Mr. North Mr. Box Mr. Papillon and Mr. Dubois Mr. Ward 'Pray' Sir who had the majority of Hands Mr. Nelson I did see the Poll-Books after they were cast up Mr. Williams But did you observe the holding up of the Hands Mr. Nelson Upon the holding up of the Hands the Election was by the Sheriffs given to Mr. Papillon and Mr. Dubois Mr. Williams But 'pray' Sir upon your view and in your judgment were there many Hands for Mr. Papillon Mr. Nelson I guess there were the most Hands for him and Mr. Dubois Mr. Ward What say you then to the summing up of the Poll-Book that you spoke of Mr. Nelson I did see the Books after they were cast up Mr. Ward Was there a great number for Mr. Papillon Mr. Nelson Yes there was the greatest Mr. Com. Serj. What Books do you mean Mr Nelson Mr. Nelson The Books in the Sheriffs Custody Sir. Mr. Com. Serj. But did you see my Books Mr. Nelson That was upon the second Poll. Mr. Ward Then which is Mr. Wightman Mr. Wightman Here I am Sir. Mr. Ward Were you present at this Common Hall Did you see this Election Mr. Wightman I can say nothing to the Election Mr. Williams Were you at the Common Hall on Midsummer-day 1682 Mr. Wightman I cannot say that Sir. Mr. Ward Then what is it you can say to this matter in question Did you take any Poll Mr. Wightman I did take the Poll in one of the Books Mr. Williams Was there any number for Mr. Papillon Mr. Wightman There were 2400 and odd for Papillon and Dubois Mr. Thompson Who were in nomination Sir Who were the persons Poll'd for Mr. Wightman Sir Dudley North Mr. Papillon Mr. Dubois and Mr. Box. Mr. Ward What say you Mr. Robinson were you at this Common Hall in 1682 Mr. Robinson Yes I was Mr. Williams Who were named to be Sheriffs then Mr. Robinson Mr. North now Sir Dudley North Mr. Ralph Box Mr. Thomas Papillon and Mr. John Dubois they four Mr. Williams What number had Mr. Papillon for him Mr. Robinson I never saw the Poll. Mr. Ward But upon the view in the Hall in your opinion did you look upon it as a doubtful case which was Elected Mr. Robinson By the Hands I judged the majority was much more for Mr. Papillon and Mr. Dubois than for the other two Mr. Williams So you think in your Judgment Mr. Robinson Upon my Oath that was my opinion Mr. Williams Well my Lord we must rest it here unless they give us further occasion Mr. Attor Gen. You say the majority was for Papillon and Dubois 'Pray' was the Election declared at that time by the Mayor and Aldermen or was there a Poll demanded Mr. Robinson Mr. Attorney first the question was put for the persons then the Sheriffs declared their opinion and a Poll was demanded and a Poll was granted and the Sheriffs went with the Common-Serjeant up to the Court of Aldermen and acquainted them with it and then they all came down again and declared that there should be a Poll. Mr. Soll. Gen. VVho were Sheriffs then 'pray' Sir Mr. Robinson Mr. Alderman Pilkington and Mr. Samuel Shute and in the Evening after the Poll was closed the Books were numbred up the Sheriffs came down upon the Hustings and declared the numbers and then as I remember the number declared for Mr. Papillon and Mr. Dubois was above 2000. and the number declared for the other two was some Hundreds under 2000. Mr. Ward My Lord we leave it here Ld. Ch. Just VVill you that are for the Plaintiff say any thing more to it Mr. Attor Gen. Yes my Lord we have more Evidence to give in answer to what they have brought here My Lord that which they would excuse themselves by is that there was a probable Cause but that will fail them if it be but observed what doth appear upon their own Evidence It is true where a man hath a probable right he may Sue But this matter here contended for was never such a right as a man may to sue for No man can ever shew that for the Shrevalty an Office of Burthen an Office of Hazard and an Office of Charge and Expence any man did ever sue so little ground of reason had they to bring this Action for this Office. And then for their Title to the Office that will appear but very weak They pretend that my Lord Mayor and Aldermen could not try the right who was Elected truly and rightfully and they bring this Action to try it and then they produce some of the men that held up their Hands and in their Opinions Gentlemen they say the Election fell upon Rapillen and Dubois But Gentlemen that my Lord will tell you is nothing at all of Title but a Poll was demanded and by that it must be decided Then one of their VVitnesses tells you a story of what the Sheriffs did upon the Poll But all that is nothing too For we tell you and shall prove it that those Sheriffs did in a riotous manner assume and take upon themselves the Supream Government of the City and would have excluded my Lord Mayor from it But all their proceedings and all that they call a Poll was void and can make no Title to any thing at all It was a bare dispute of a factious Party to subvert the Orderly Government of the City There was no probability of Title or Right could be gained by it For the Chief Magistrate of the City for the time being ever did direct the Poll and all the Proceedings upon Election of Officers And when he did so in this Case we shall prove to you there was not any considerable number that is not twenty men to give any pretence of Title to this Gentleman that thus sued for this Office. But indeed in that most riotous assembly one of them that ever was they do pretend to be Elected But we shall shew that for that riotous assembly they were convicted here as Rioters upon an Information and fined to the King for it And I could tell them of a like Case of an illegal Title a man goeth by a false Oath to get a Possession of goods takes out a Capias and with others getting into a House to arrest the Party he then carries away all the Goods and upon this possession would set up a pretence of Title But upon an Information for a Riot he was severely punished for it Mr. Papillon if h ehad thought he had had a good Title or Cause to bring this Action he would have imployed better Instruments to have proceeded in it The Attorney he makes use of who is it but Mr. Goodenough one who did not live within the City nor had any thing to do in it till brought into Office as the great Instrument of Mr. Bethel in his Actions and a great Plotter in the late horrid and dreadful Conspiracy And this Cause how is it managed Not by

cannot be decided by the view but they go to a Poll Who is to manage that Poll Mr. Town-Clerk The Officers of the City by direction of the Lord Mayor Mr. VVilliams That Poll you speak of for Lewis and Jenks Was that managed by any body but by the Sheriffs Mr. Town-Clerk It was managed by the Sheriffs and the Common Serjeant in the accustomed manner Mr. VVilliams How in the accustomed manner when you say that was the first that ever you knew Mr. Town-Clerk It was so for Sheriffs but there have been Polls for other Officers L. C. J. Why Mr. VVilliams every body knows that well enough that the Sheriffs are concerned in the management of the Election or the Poll as all the rest of the Officers of the City are under my Lord Mayor and the Common Serjeant consults with the Sheriffs Officers and People about him upon the view Mr. VVilliams 'Pray' Sir do you remember the Election of Mr. Bethel and Mr. Cornish Mr. Town-Clerk Yes Sir There was a Poll there too that was the Year after Mr. VVilliams Who managed that Poll Mr. Town-Clerk The Sheriffs and the Common Serjeant and I did agree to take it thus in two Books whereof one was with the one Sheriff and the other with the other Sheriff at the two ends of the Hall. Mr. VVilliams That was taken in Writing Sir Was it not Mr. Town-Clerk Yes Sir That other of Jenks was only by telling Mr. VVilliams Were you concerned in taking that Poll Mr. Town-Clerk I did assist at it one day Mr. VVilliams Who ordered you to take the Poll that day Mr. Town-Clerk Truly I did concern my self as little as I could in those things What Report was made to the Court of Aldermen I cannot tell but one day coming into the Hall I had no Mind to concern my self in it but some Gentlemen did pray me to go up to the Poll and I did go up Mr. VVilliams Sir Upon your Oath Did the Sheriffs direct you to take it Mr. Town-Clerk I really think they did not Mr. VVilliams Did my Lord Mayor direct you Mr. Town-Clerk No Sir. Mr. VVilliams Did the Sheriffs manage it Mr. Common-Serj I did it by Sir Robert Clayton's Order who was then Lord Mayor Mr. VVilliams My Lord all that we say to it is this We are not now proving our Right upon which we brought our Action that we submit unto it is against us we must agree it But be the Right one way or other yet we might from a supposed Right have a probable Cause of Action It seems to be a doubtful business by all that Mr. Town-Clerk has said who has the Right for all he knows of the Constitution is from Liber Albus and that is somewhat dark You Gentlemen hear what is said the thing was a Question of five or six days and a puzzling one it seems and therefore we might be misled into an apprehension that what the Sheriffs did was right and so notat all concern our selves with what my Lord Mayor did L. C. J. Mr. VVilliams you talk of that you do not understand for my Lord Mayor was not there at that time of Jenks's Poll I was Common Serjeant my self and I know the Sheriffs have nothing to do with it Mr. VVilliams It should seem by Mr. Town-Clerk to be doubtful sometimes one and sometimes another did direct the taking of the Poll. L. C. J. But you are out still But for all that this is nothing to your Right of Action one way or other Mr. VVilliams My Lord I must lay it here it was a doubtful thing and we brought our Action to try the Right but afterwards conceiving we were out and had no Right we discontinued and desisted L. C. J. It was so far from being their Right that I desire you to call me any one Witness that can say before Jenks's time there was ever a Poll for Sheriffs or such a thing thought of Mr. VVilliams We were under an apprehension of a Right in them L. C. J. There could be no colour for any such apprehension in the World. Mr. VVilliams We must submit it to your Lordship's directions Mr. Att. Gen. So do we Mr. S. Maynard Whether this Action brought by us was malicious Mr. VVard My Lord Mr. Attorney doth challenge the Defendant to shew that his Action was brought by advice of Counsel we shall shew it was with good Authority of Counsel Mr. Baker can you tell whether it was by any Advice and whose Mr. Baker It was by the Advice of Mr. Thompson Mr. Pollixfen and Mr. VVallop as I have heard Mr. Att. Gen. But you hear what Keeling says there was a Party that were at a Consult about it and that were concerned in it Mr. Sol. Gen. My Lord We have done on both sides I think and submit to your Lordship's direction in it L. C. J. Will any of you say any thing more Mr. VVilliams No my Lord we have done we leave it upon this Evidence to your Lordship and the Jury Mr. Att. Gen. My Lord We have no more to say for the Plaintiff L. C. J. Then Gentlemen of the Jury as my Brother Maynard said in the beginning of his Defence in this Cause so I say now to you to set all things strait and right God forbid that any heat or transport of the times should bring us into that Condition but that every Subject of the Kings that hath a right of bringing an Action at Law against another should have free Liberty so to do And the Courts of Justice are now and I hope always will be so open that every one that would take a Remedy prescribed by the Law for a wrong done him may be received to bring his Action which is a Legal Remedy And I am to tell you Gentlemen that much has been said in this Case which I perceive is by the Concourse of People a Cause of great Expectation as my Brother likewise said which is not at all to the Case I am sorry truly at this time of Day that we should stand in need of such Causes as these to settle and keep People in their due bounds and limits But tho' many things have been said in the Case that are quite besides the natural Question yet they having being made Dependancies upon that Question and because it seems to be a Case of such Expectation I think it will become me in the Place wherein I am to say something to you and according to the best of my Understanding tell you what I apprehend to be the legal Part of it stripped of what hath no Relation at all to it And if I shall omit any thing that is material on the one side or the other here are Gentlemen that are Learned in the Law who are of Council both for the Plaintiff and the Defendant and I shall not think my self under any sort of Prejudice in the World if they take the liberty as they may freely do to interrupt me

Mouths and every Action of our Lives and then tell me what horrid Impieties these are such as any ordinary ingenuous Person would blush and tremble at And I would have Mr. Cornish to consider whether ever till that time of famous or rather infamous Memory that he and his Fellow-Sheriff Mr. Bethel came into that Office there were ever in London such things as Tavern-Returns of Juries or Clans and Cabals how to pack Fellows together for such wicked Purposes as these Do not most of you here know this And doth not every one of your Hearts and Consciences agree with me in it how far unlike the Proceedings of those times in reference to Juries were from what they anciently were I have had the Honour to practice in this Place among you in my Profession when without any disturbance or mixture of Faction and Sedition we were all quiet and every one knew his Duty and Justice was done in this place so regularly that it was grown to a common Proverb if there were any Cause of any difficulty they would use to say to one another Come we will be so fair with you as to try it by a London Jury So far was it then from being thought that in the City of London Justice should be corrupted that the Ordinary Juries of London were thought the best Judges and most impartial of any in the Kingdom I appeal to all the Practicers of those times that hear me if what I say be not true But when once they had begun to pick and cull the Men that should be returned for a Purpose and got this Factious Fellow out of one corner and that pragmatical prick-ear'd snivelling whining Rascal out of another corner to prop up the Cause and serve a Turn then truly Peoples Causes were Tried according to the demureness of the Looks on the one side or the other not the Justice of the Cause Gentlemen I take my self bound to tell you of these things and I wish I had no reason for it and especially in this Case I should not do it it being a private Action between Man and Man were it not for the Ingredients that are in the Case and that any Man that has any sense may perceive Now then for this Case before you Gentlemen I desire if possible to be satisfied in one thing or two My Lord Mayor of London it is true is not nor no Person whatsoever be he of never so great Quality is exempt from the Law If he owe any man any thing he is bound to answer it to him as much as any the meanest Citizen of London or poorest Subject the King has But is he to be arrested just at such a time because he is Chief Governour of the City and the Action will sound the greater And the Court of Aldermen are they to be arrested because they are his Ministers and necessary subservient Assistants to him in his Government in such a time as this was when the Government both in the City and elsewhere was surrounded with Difficulties and in great danger on all sides What occasion was there for such haste and speed in this Action to be done just then Would Mr. Papillon and Mr. Dubois have starved if this Action had been suspended for a while Sir William Pritchard would have been as answerable to this or any man's Action when the year of his Office had been out But it carrieth Vengeance and Malice in the very face of it it speaks that therefore they would do it because he was then Lord Mayor the chief Person in the City for the time and thereby they should affront the Government in Arresting and Imprisoning the King's Lieutenant in one of the highest Places both of Trust and Honour And this would be sure to make a great noise and the Triumph of the Action would make their Party then to be uppermost having got the chief Governour of the City in their own Clutches Nay and because they would be sure their Malice and Revenge should take place they take the very Scoundrels of the Party to be employed in this great Work. For before that time the Coroner as he tells you himself used to make his Warrants to the Officers that usually are versed in that Business but here he must have the Direction of the Attorney and who is that but Goodenough a Man we have all heard enough of and then Burley and Keeling must be employed and by whose Advice but by the Goodenough's and Nelthorp's And all these Rascals who now stand attainted of Treason must be fetched in to consult about a sit Man to make an Arrest And there they pitch upon this Man Keeling for one who was one of the principal Conspirators in that damnable hellish Plot against the King's Life and that of his Royal Brother but by the Blessing and Providence of Almighty God was made use of as a great Instrument of preserving those precious Lives and with them our Government and Religion and all that is dear to us which by that Conspiracy was undermined and I wish we had not Reason to say and think the Conspiracy still to be going on But I hope in God the Government as established both in Church and State will always be able to prevail maugre all Designs and those that are engaged in them for its Destruction Now Keeling tells you he scrupled the Imployment No said he I desired not to have my Name put in because I was never concerned in any such thing before and my Business was of another sort But then Mr. Goodenough and Mr. Brome the Coroner no doubt had a Hand in it tho' now he has a very treacherous Memory and has forgot all that was done comes and tells him you must concern your self and do this thing for you have a Trade with the Party and it will be ill taken if you do not do it And being asked whom he meant by the Party He tells you the discontented Party and he explains their discontent to be such that they would have killed the King and the Duke Now how far he was engaged with that Party is pretty well known and therefore if he boggled at such a thing as this which that Party it seems was engaged in they would suspect him and so for the Party's sake he was drawn in But then when this thing is done 'Pray' Gentlemen do but consider what the Consequences might have been and which perhaps nay upon what has happened to be discovered since doubtless they did design in it But God be thanked those Consequences were prevented and they themselves have Cause to be thankful to God Almighty for it For here all the Magistrates of the City that had any Care for the good Government of it were to be taken up and then here was a Body without a Head a Town full of Faction without any Government and if the heady Rabble had been once up without those that had Authority to restrain them where then had