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
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
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. LONDON Printed and sold by Richard Janeway in Queens-head-Court in Pater-Noster-Row MDCLXXXIX Pasche xxxvi to Car. Secundi Reg. London ss WIlhelmus Pritchard Miles nuper Major Civit. praedict quaerit de Thoma Papillon in Custod Marem c. pro eo videlicet quod cum duodecimo die Februaris Anno nostri Domini Caroli Secundi nunc Regis Angliae c. tricessimo quinto ipsem idem Wilhelmus Pritchard ac antea abinde pro separat menses ex tunc prox sequend extitit Major Civitat ' London praedict in Officium Majoratus illius debito modo elect praefect jurat ac secundum Consuetudinem Civitat London praedict a tempore cujus contrar memoria hominum non existit in eadem usitat approbat Officium suum Majoratus illius indies intendere debuit pro assiduam diligent ipsius Wilhelmus in regimine Civitat illius pro ipsum secundum debitum Officii sui praedict exequend performand ad honorem dignitat ad Officium illud spectant pertinen praedictus tamen Thomas existens unus de Commitat Civitat praedict sub regimine dicti Wilhelmi virtute Officii sui praedicti praemissor non ignarus sed machinans false ac malitiose invidens felici statui ipsius Wilhelmi in Officio suo praedict necnon ipsum Wilhelmum in executionem Officii illius minus juste inquietare disturbare praedicto duodecimo die Februarii Anno tricesimo quinto superdicto idem Thomas Papillon pro vexatione praefat Wilhelmo adhibend eodem Thoma ad tunc non habente aliquam legitimam vel probabilem Causam Actionis versus ipsum Wilhelmum false malitiose prosequunt fuit extra cur dicti Domini Reg. coram ipso Rege nunchit scilicet apud Westmon in Com. Middlesex adtunc adhuc tent ' existem quoddam Breve ipsius Dom. Reg. de alias Capias versus ipsum Wilhelmum per nomen Wilhelmi Pritchard Militis adtunc Coronator Civitat ' London praed direct ' per quod quidem Breve idem Dominus Rex nunc eidem tunc Coronatori praecepit quod capet ipsum Wilhelmum Pritchard si invent ' foret in Civitat ' London praed ea salvo custodiret ita quod herent Corpus ejus coram Domino Rege apud Westm die cur ' prox post quindenum Pasche ex tunc prox sequend ac respondend praefat ' Thomae Papillon pre nomen Thomae Papillon Armiger de placito trangres quod idem tunc Coronator haberet ibi tunc breve illud Et praedictus Thomas Papillon ex ulteriori nequitia malitia sua praecogitat ' versus ipsum Wilhelmum postea ante retorn ' Brevis praedicti scilicet vicesimo quarto die Aprilis Anno tricesimo superdicto apud London praed videlicet in Parochia Sanctae Mildredae Virginis in Pulletria in Warda de Cheap London praedicum Breve de alis Capias cuidem Johanni Brome Gent. adtunc Coronator Civit ' London praed existem deliberavit exequend ac adtunc ibidem apud Wilhelmum adtunc Major ' Civitat ' London praed ut praefert ' existem praetextu Brevis illius pro Corpus suum capi arrestari ac in Prisona sub Custod ejusdem tunc Coronator per spatium sex horarum ex tunc prox sequem detineri malitiose minus juste procuravit in vituperator ' derogation ' vilipendium praedici Wilhelmi Officii Majoratus ipsius Wilhelmus praed necnon ad damnum prejudicium gravamen ipsius Wilhelmi manifest ' ubi revera de facto praedictus Thomas Papillon praedico tempore captionis arrestionis detentionis ipsius Wilhelmus in Prisona sit ut praefert ' fact ' non habuit aliquam justam vel probabilem causam Actionis versus ipsum Wilhelmum in Premisis praed unde idem Wilhelmus dic ' quod ipse deteriorat ' est damnum habet ad valent ' decem mille librarum inde produc ' sertam c. Die Jovis 6º Novemb. Anno Dom. 1684. Mich. Ter. 36º Car. 2o. B. R. At the Session of Nisi prius for the City of London held at Guild-hall Pritchard versus Papillon London ss SIR William Pritchard late Lord Mayor of the City of London having in Easter Term last brought an Action upon the Case for falsely maliciously and without probable Cause procured him to be arrested and imprisoned in his Mayoralty against Thomas Papillon Esq The Defendant pleaded not Guilty and thereupon Issue being joyned it came this day to be tried before the Lord Chief Justice Jeffreys and the Jury sworn to try this Cause were these Bartholomew Ferryman Thomas Blackmore Thomas Symonds William Whatton John Green Thomas Amy Jospeh Baggs Daniel Chandler John Reynalds John Allen Joseph Caine and William Withers jun. Mr. Mundy May it please your Lordship and you Gentlemen of this Jury Sir William Pritchard Knight late Lord Mayor of the City of London is Plaintiff and Thomas Papillon Esq is the Defendant And this Gent. is in a special Action upon the Case wherein the Plaintiff does declare That whereas the 12th of Februaery in the 35th Year of this King and before and after for several Months then next ensuing he was Mayor of the City of London being duly elected and sworn into the Office of Mayoralty of the said City and according to the Custom of the said City time out of mind he ought daily to attend the said Office in the diligent Government of the said City according to the Duty of his said Office which he was to execute to the Honour and Dignity belonging thereunto That the Defendant Thomas Papillon being one of the Commonalty of the said City and under the Government of the Plaintiff by virtue of his Office aforesaid not being ignorant of the Premises but contriving and falsly and maliciously envying the happy Estate of the Plaintiff in his said Office as also unjustly to disturb the Plaintiff in the Execution of his said Office the said 12th day of February in the 35th Year aforesaid the Defendant for vexation to the Plaintiff not having any lawful or probable Cause of Action against the Plaintiff falsly and maliciously did prosecute the King 's Writ of alias Capias out of the Court of King's Bench against the
Plaintiff by the Name of Sir William Pritchard Knight directed to the then Coroner of the City of London by which Writ it was commanded the said Coroner to take the Plaintiff if found within the said City and safely keep him so as to have his Body before that Court at Westminster upon Wednesday next after 15 days of Easter then next following to answer the now Defendant in a Plea of Trespass And that the Defendant of his further Malice against the Plaintiff afterwards and before the return of the Writ to wit upon the 24th day of April in the 35th Year aforesaid at London to wit in the Parish of St. Mildred the Virgin in the Poultry in the Ward of Cheap London delivered the said Writ of alias Capias to one John Brome Gent. then being Coroner of the said City to be executed and then and there the Plaintiff then being Mayor of the said City by virtue of that Writ maliciously and unjustly did procure to be taken and arrested and detained in Prison under the Custody of the said Coroner for the space of six hours to the Disgrace and Scandal of the Plaintiff and his said Office as also to the manifest Damage Prejudice and Grievance of the Plaintiff Whereas in Truth and in Fact the Defendant at the time of the taking arresting and detaining of the Plaintiff in Prison as aforesaid had not any just or probable Cause of Action against the Plaintiff in the Premises whereby the Plaintiff says he is injured and which he lays to his Damage 10000 l. To this the Defendant has pleaded Not Guilty If we that are of Counsel for the Plaintiff shall prove this matter unto you Gentlemen that we have laid in the Declaration that has been opened unto you you are to find for the Plaintiff and I hope will repair him in Damages for this Affront and Injury Mr. Attorn Gen. May it please your Lordship and you Gentlemen of the Jury I am of Counsel in this Case for the Plaintiff and this Action is brought Gentlemen to vindicate the Honour of the Chair from such Affronts as these which in no Age till of late days our Times of Faction and Confusion it ever met with That by a Person that is a Citizen of London and one of the Commonalty that ought to have paid Submission to the Lord Moyor as his Chief Magistrate and was bound so to do by his Oath as a Free-man should without Cause of Suit arrest the Lord Mayor of the City That there was no probable Cause is evident by his not proceeding in the Action that he had thus brought But Gentlemen we shall shew you in the course of our Evidence that there lay a further Malice in this Case and that there was a Design in it against the Government For we shall give you Evidence that this Design was laid to carry on the great Plot against the Lives of the King and his Brother and for the Subversion of the Government For they contrived it so that they would imprison the Mayor and then thought they the Loyal Citizens will interpose to rescue him and then the Party should rise to assist the Officer he having the Countenance of Authority and being in the Execution of the King's Writ especially if it be considered then who was Coroner and so a publick Commotion would be made a general Mutiny and that would be a fit Opportunity in the Confusion of the City wanting its Chief Governor of doing what they designed Gentlemen we shall prove all that is laid in the Declaration and likewise that the End of this Business was to have had a Commotion for the accomplishing their great Conspiracy as has been opened That Sir William Pritchard was arrested in his Mayoralty I suppose will be agreed or else we shall prove it Mr. Ward Yes yes we agree it Mr. Sol. Gen. Then we will go on and prove the manner of it Swear Mr. Gorges and Mr. Keeling which was done Mr. Keeling pray will you tell my Lord and the Jury were you made a special Bayliff to arrest Sir William Pritchard when he was Lord Mayor and what did you do upon it tell all you know of it and what was designed by it Keeling My Lord all that I do know of it is this It was upon the 24th day of April I have the Warrant here to shew I met with Mr. Goodenough at Mr. Russel's the Cook in Ironmonger-Lane and several others were there and I went away a little while and came again While I was gone from them they put my Name into the Warrant and upon that Warrant I did arrest Sir William Pritchard who was then Lord Mayor at the Suit of Mr. Thomas Papillon I suppose this is the Gentleman pointing to the Defendant I had no Order for it from Mr. Papillon nor ever spoke with him about it but I had Order from the Coroner who upon the arresting of him took my Lord Mayor into his Custody Mr. Attorn Gen. Where was my Lord Mayor then Keeling At Grocers-Hall Mr. Attorn Gen. Was that the place he kept his Mayoralty in Keeling Yes it was so Mr. Sol. Gen. What was he doing when you arrested him Keeling There was some Disturbance upon it among the Officers and People there The Coroner came up to him and said Sir I have a Writ against you I pray you would please to give an Appearance at the Suit of Mr. Thomas Papillon and another at the Suit of Mr. John Dubois and some words there past between him and the Coroner and my Lord Mayor refusing to give any Appearance the Coroner Mr. Brome bid us execute our Warrants upon which I came up to my Lord Mayor and touched him upon the Shoulder and said I arrest you at the Suit of Thomas Papillon Esq and one Ferdinando Burley arrested him again at the Suit of Mr. John Dubois Mr. Attorn Gen. What did you do with him when you had arrested him Keeling The Coroner dismist us and as I take it carried him home to his House Mr. Att. Gen. What Instructions had you what to do in case he made any Resistance and did not submit to the Arrest Keeling I know of no Instructions about any such thing Mr. Soll. Gen. Who was by pray when Orders were given you to arrest my Lord Mayor Keeling Both the Goodenoughs Mr. Att. Gen. He in the Proclamation you mean and his Brother Keeling Yes Richard and Francis Goodenough Mr. Soll. Gen. And who else pray Keeling Several that I did not know Mr. Att. Gen. Can you remember any Body besides the Goodenoughs in particular Keeling There was one a Tallow-Chandler and a great many that I did not know Mr. Sol. Gen. How many do you think there were and where was it Keeling I believe there were about thirty or forty and it was at Russel's the Cooks in Ironmonger-lane Mr. Att. Gen. Did they all come along with you to Grocers-Hall to arrest my Lord Mayor Keeling No
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
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
Lord I was only giving an Account of what we should prove as to the fairness of our Proceedings L. Ch. Just But I must interrupt you and tell you all you have said signifies nothing And as to what you mention of the Tryal for the Riot I say if there be any Election to an Office at any time that is controverted or doubtful you have Forms and Methods of Law to determine the Controversy Mr. Ward And we say with submission my Lord we have only pursued such Form and Method L. Ch. Just You are not try Rights by Club-Law by Riots by Noise and by Tumults Therefore you are mistaken to say that was the Question upon the Trial of the Riot No it was not the Question but the Defendants there were tried for a notorious Offence and disorderly tumultuous Assembly an Assembly that had like to have set us together by the Ears Therefore you must not talk after that rate If you will speak apply to the Business in hand Do not make such excursions ad captandum Populum with your Flourishes for that is all that is designed by your long Harangues But I must not suffer it I will have none of your Enamel nor your Garniture The Business of the Court is and by the Grace of God it shall always be my Business and so it should be the Counsels too Senare jus illaesum But I see you do not understand the Question and that makes you ramble so much in your Discourse Mr. Ward My Lord I desire always to do my Duty and do it as well as I can I know very well and hope to apply it to this Case that in a Question of Right there are Forms and Methods of Law to be pursued and I would defend my Client from this Action by proving he did pursue that Method and when he apprehended he had been before mistaken he desisted from what he had begun L. Ch. Just I tell you I perceive you do not understand the Question Mr. Ward If your Lordship will give me leave to explain my self I hope I shall satisfy your Lordship L. Ch. Just Indeed Mr. Ward you do not understand the Question at all but lanch out into an Ocean of Discourse that is wholly Wide from the Mark. I see you do not understand it Mr. Ward Will your Lordship please to hear me L. Ch. Just Ay if you would speak to the purpose but I cannot sit here all night to hear you make florid Speeches about matters that are foreign to the Point before us Come to the Question Man I see you do not understand what you are about Mr. Ward My Lord L. Ch. Just Nay be as angry as you will Mr. Ward I do tell you agen all you have said is nothing to the purpose and you do not understand the business Then there was a little Hiss begun L. Ch. Just Who is that What in the Name of God! I hope we are now past that time of day that Humming and Hissing shall be used in Courts of Justice but I would fain know that Fellow that dare to Hum or Hiss while I sit here I 'll assure him be he who he will I 'll lay him by the Heels and make an Example of him Indeed I knew the time when Causes were to be carried according as the Mobile Hissi'd or Humm'd and I do not question but they have as good a Will to it now Come Mr. Ward pray let us have none of your Fragrancies and Fine Rhetorical Flowers to take the People with Mr. Ward My Lord I do not do any such thing but if your Lorship would please to hear me I would explain my self I hope to your Lordship's Satisfaction and the satisfaction of the Gentlemen of the Jury L. Ch. Just Hear you why I did not interrupt you Man till you came to lanch out into extravagant things that did not at all concern the Cause Keep close to the Question we come here to try and I will hear you as long as you will. The single Question is here Whether there were a probable Cause for your Arresting the Planting or not Mr. Ward My Lord we did apprehend I say that we had a probable Cause but when we found our mistake we discontinued our Action paid Costs and have a Receipt for them This was it I was saying L. Ch. Just Say what you can in God's Name that will conduce to the Point in hand but do not make the People believe as though the Right of Sheriffs or not Sheriffs were determined upon the Trial of a Riot Mr. Serj. Maynard There are these things that are proper to be considered in this Question Whether the Cause were probable or not probable and if not probable whether malicious or not L. Ch. Just True Brother if People will but understand their Business it is reduced to a narrow Compass but if they will not understand what it is they come about they will ramble from the Point and who can help it But we must keep to what is before us Mr. Williams We shall make it out that nothing was done but very civilly L. Ch. Just You must make it out that nothing was done but what you had Probable Cause at least for Mr. Williams We will my Lord apply our selves to that which your Lordship directs Call Mr. Brome Mr. Courthope and Mr. Cornish Mr. Brome sworn Mr. Ward Mr. Brome are you sworn Mr. Brome Yes Sir. Mr. Ward Have you the Writs here the Latitat and the Capias Mr. Brome Truly Sir I have not I did not bring them with me they are at home at my house If you please I will fetch them Mr. Ward Pray can you tell Sir when the first Writ was returnable Mr. Brome In Hillary Term. Mr. Ward When you had that Writ brought to you Sir what did you say to my Lord Mayor about it Mr. Brome I went to my Lord Mayor with Mr. Goodenough and desired my Lord that he would appear to it as Mr. Goodenough told me he had desired of him himself before But he said he would give no Appearance If I would take him up upon the Writ I might do as I pleased and he would consider and do as he should think fit but he would not give any Appearance I told him I had Writs against several of the Aldermen upon the same Account and that I would wait upon them also and I did so and desired them to appear and offered to take an Appearance from them and gave my Lord Mayor and them time to consider of it and came again but they told me they had considered of it and would give no Appearance Mr. Williams When was this Sir Mr. Brome In the beginning of Hillary Term to the best of my remembrance Mr. Williams What time did you give my Lord Mayor to consider of it Mr. Brome About a week or some nine or ten days time as I remember Mr. Ward Where was it that you had that Answer that he had
can hardly get one word of truth out of them Let the Law in GOD's Name take place and let every man prosecute his Legal Actions but when under the Umbrage and Countenance of Law men shall desire to put themselves into Offices and Places of Trust on purpose to disturb the Government Do you think the Government will ever suffer it self to be snivelled at and overthrown by a Company of such Whining Fellows Let them hiss and hum and make a noise and a-do as they will thanks be to God 't is not that time of day now Such things have past too much uncontroul'd in the Body of this City heretofore What Gentlemen are you baffling the Law with such pretences as these now-a-days and do you think to sham People into Offices No I tell you Villainy was the foundation of it and Knavery the superstructure and it is high time it should be told out since I hear people begin to doubt of it as a question Mr. Ward Where is Mr. Serjeant Swear him Which was done Ld. Ch. Just Do not I know as sure as I sit in this Place that Bethel did once before Swear himself off and that there were two Elections of these two very men that year and that one of the Reasons was because they had not taken the Oaths and the Sacrament according to Law nor would they ever have done it we know them neither Bethel nor that very fellow that stands there Cornish neither till they found it would contribute to the Design of Subverting the Government then these Rascals could qualify themselves for an Office only to put the Kingdom into a Flame Mr. Cornish When the City chose me I had good reason for what I did Ld. Ch. Just Reason I tell you the City was in great happiness and quiet ever since the late times of Rebellion and Confusion every one knew his Duty to his Superiors and did it chearfully and conscientiously till such time as a couple of busie fellows came to get into the publick Offices Let the whole party go away with that in their Teeth and chew upon it if they will. Mr. Williams Mr. Serjeant will you please to tell my Lord and the Jury what directions you heard the Defendant Mr. Papillon give about the Plaintiff how they should treat him Mr. Serjeant My Lord I was in the Counting-house at Mr. Alderman Cornish's house when Mr. Papillon and Mr. Dubois were there I went into thē Parlour to them and Goodenough coming in they fell into a discourse about this Action that was brought by them against Sir William Pritchard then Lord Mayor and some of the Aldermen And Goodenough gave them an account how far he had proceeded in it he said he could not get any of them to give an appearance and the time was near spent and he desired to know of them what he should do Mr. Papillon and Mr. Dubois both did declare to him over and over again that it was their mind only to have the matter brought to a fair Trial and they charged him to look to it to do nothing but what was Legal and carry it with all respect imaginable to my Lord Mayor as the Chief Magistrate of the City that he should by all means get an appearance from him if he could and get the Coroner who was an Officer of the City to go with him and carry all things fairly and decently Mr. Att. Gen. Who gave these directions Sir do you say Mr. Serjeant Mr. Papillon and Mr. Dubois both of them did Mr. Ward Now my Lord we shall shew that we proceeded so far in the Action as to declare but afterwards apprehending our selves to be under a mistake we discontinued our Action Mr. Williams And the costs upon the discontinuance were received by my Lord Mayors Attorney Here is the Declaration as it was filed Ld. Ch. Just Ay it may be there was a Declaration filed but not regularly Mr. Williams My Lord Mayor after appeared Ld. Ch. Just How doth that appear in Evidence For the Coroner says he himself was in Custody and knows no more of the matter afterwards Mr. Williams I believe your Lordship doth remember there were many motions made in Court about this matter on the one side and the other and at length in Court it was comprimised and my Lord Mayor promised to give an appearance Ld. Ch. Just Prove what you can prove the appearance entred declaration received Mr. Williams My Lord I only offer this as an Evidence of an appearance Ld. Ch. Just A Record I know is a good and fair Evidence shew that if you can Mr. Ward It is not usual to declare till the Defendant appears Ld. Ch. Just A Declaration may well be upon an appearance but because it cannot be good without an appearance therefore it cannot be a sufficient Evidence of it Mr. Ward We will prove the Costs of the discontinuance paid and accepted Swear Mr. Baker Which was done What do you know Sir of any Costs that were taxed and paid for a discontinuance in this Case Mr. Baker My Lord Mr. Aston told me he appeared for Sir William Pritchard then Lord Mayor and had a Declaration from the now Defendants Attorney So I entred up a Discontinuance and paid the Costs and have Mr. Aston's Receipt for them Ld. Ch. Just He says well Go on then Mr. Williams My Lord it is a thing that hath frequently happened that after a man has brought an Action against another he finds he was mistaken and hath no cause of Action and thereupon relinquisheth his Suit But sure that will not make him liable to a Suit. Ld. Ch. Just. Well 'pray' go on with your Evidence Mr. Ward My Lord we are not now offering to try the right of Election tho' that really was the Foundation of the Action that we brought but we apprehended that question to be determined and we acquiesced in it when that Trial was over Now my Lord we shall shew that apprehending our selves really chosen we did in a due course of Law Sue forth our Mandamus directed to the Plaintiff and the Aldermen and there is a Return made I pray these may be read The Mandamus and Return were read Mr. Williams Then that which we shall next shew is the grounds and reasons why we thought this Return was false and thereupon brought our Action We shall shew that at a Common Hall held for the Election of Sheriffs the Defendant was in nomination and had a great number of Hands and Voices for him 'Pray' call Mr. Gilbert Nelson Mr. William Wightman and Mr. Leonard Robinson Who all appeared and were Sworn Mr. Ward Mr. Nelson 'pray' were you at the Common Hall for Election of Sheriffs in the Year 1682. Mr. Nelson I was at the Common Hall in June 1682. on Midsummer-day Mr. Williams 'Pray' Sir will you tell us who were then in nomination and how they did proceed Mr. Nelson There were in nomination for Sheriffs he that is now
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
any of the City-Books that looks like a deciding the Election when disputed by a Poll. Now in another Chapter of that Book where the Common-Council is mentioned it is said If there be any Division of Opinions in the Common-Council the Common-Serjeant and the Town-Clerk shall examine every Man severally what their Opinion is which is by way of Poll at this day when we had a Common-Council But till that time that the Poll was between Mr. Jenks and Sir Simon Lewis I never knew any Poll for Sheriffs and that Poll was taken immediately by telling one and the other For my Lord Mayor and Aldermen as soon as ever they come upon the Hustings make Proclamation to have the Liveries attend for such Elections and then withdraw and leave the Sheriffs and the Common Serjeant Mr. Att. Gen. Sir the Course is very well known I suppose to the Gentlemen of the Jury But 'pray' did any Persons Poll at my Lord Mayors Books for Dubois and Papillon Mr. Town-Clerk Not that I know As to this Poll my Lord Mayor caused the Common-Hall to be Adjourned to such a time and after that-sent for the Common Serjeant and my self and required us to go get Books to take the Poll for Mr. Box Mr. Papillon and Mr. Dubois as for Sir Dudley North he was not to be Poll'd for he being Chosen before by the Prerogative of the Lord Mayor and my Lord Mayor and Aldermen declared him fully Elected and upon that he was called out by publick Proclamation upon the Hustings to come and take the Office upon him as is usual in such Cases But we had directions to provide Books to take the Poll for Mr. Box Mr. Papillon and Mr. Dubois and we did so and took the Poll for these three Gentlemen and upon closing of the Poll we all of us sealed up our Books and delivered them to my Lord Mayor and at a Common-Hall afterwards he did declare Mr. Box to be Chosen the other Sheriff to be joined with Sir Dudley North The Poll was as it always ought to be by the direction of my Lord Mayor and the Sheriffs are but Officers and not the Judges and Managers of the Poll without my Lord Mayor's direction L. C. J. What say you to it Gentlemen Have you any more Evidence Mr. S. Maynard My Lord and Gentlemen Here has been much said in this Cause that is nothing to the purpose As particularly that which the Plaintiffs Council did last insist upon who took the Poll and who had right to take the Poll or not is not any thing to this Question This Action is not at all concerned in that matter For whatsoever the dispute was and which soever had the right and because it was a dispute some it may be could not Poll at the one and others would not Poll at the other yet the lifting up of two thousand Hands might make him think that he was Chosen Sheriff and there lies the Cause of his Action his apprehension of a Right Your Lordship did Object this to us Who ever before brought such an Action as ours and did sue to be Sheriff of London a Place of Charge and Trouble L. C. J. No I did not make it as any Objection I asked your Witness Cornish that Question indeed for some Reasons that I know Mr. S. Maynard That may be Objected indeed to the Prudence of my Client Mr. Papillon to desire such an Office But that proves nothing of Malice in him against the Plaintiff for if he were never so unwise as to desire it if he had a Right to it or thought he had it is not a malicious thing in the Eye of the Law for him to take his Legal Course for it and then the Objection that is made of the Instruments that were used Our Attorney Goodenough is in a Plot What is that to us There is not the least suspicion upon us He is a bad Man But that doth not make all his Clients bad But the Question now before you is First Whether there were any probability of a Cause of Action Secondly if there were not a probable Cause yet whether that Action was grounded upon Malice What Malice I pray is there in this against my Lord Mayor to desire an Appearance of him when it is conceived though upon mistake that there is Cause of Action against him We did not press him to give us Bail to our Action or threaten else to arrest him No it was a decent rather than an irreverent Application to him If then there be not both concurring want of Title or probable Cause and Malice too this Action of the Plaintiffs is without ground No Man that has any Sense if he knows he has a clear Title against him will bring an Action but though it should be clear against him yet if he do bring an Action but not vexatiously and maliciously that cannot subject him to an Action that would frighten Men from bringing Actions upon doubtful matters which certainly is Lawful for any Man to do Now what Malice is proved in the Defendant against the Plaintiff the Jury here are Judges of If we were Criminal in the manner of our Proceedings they might come before your Lordship in another way but sure this is not the way and if it should be Actionable and we likewise subject to be punished as a Criminal then we should suffer twice for the same fault Now Gentlemen upon this Action we are not to be fined but they if they can are to shew what damages the Plaintiff sustained by our Action and if what we have said do not satisfie you that we had probable Reason for what we did then you upon your Oaths are to give him what damages you in your Consciences think he has received by it Mr. Williams My Lord if your Lordship please I would ask one question of Mr. Town-Clerk as to the Right of managing the Election Sir You have observed many Common Halls for Elections Mr. Town-Clerk Yes Sir I have for this twelve years Mr. Williams Did the Common-Hall ever go to a Poll upon an Election before this time that you know of Mr. Town-Clerk Never but once for the Election of Sheriffs I say Mr. VVilliams I speak Sir of any sort of Poll for I suppose you do not call the holding up of Hands a Poll. Mr. Town-Clerk Mr. Jenks's Poll was the First that ever I knew for Sheriffs Mr. VVilliams Well Sir Was that managed by the Sheriffs or by my Lord Mayor or by you and the Common Serjeant or who was it by Mr. Town-Clerk Sir The Mayor and Aldermen withdraw and leave the Sheriffs to view the Election by the Hands and the Common Serjeant propounds the Question So many of you as will have c. Mr. VVilliams By whose direction doth he propound the Question ' Pray' Mr. Town-Clerk By the direction of the Common-Hall I take it Mr. VVilliams But if a Question do arise upon an Election so that it
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
been your Liberties or Properties Gentlemen or any Man's Nay theirs that were engaged in this Design if they had any for those were things much talked of by them In what danger had you and all you had for Life Estate Relations and every thing been But it pleased God in his infinite Mercy to showre down upon us and upon this City and the Government in a mighty Preservation putting it into the Hearts of some in Power to bring the City Militia some of them together and prevent this Mischief or else God knows this whole City might have been by this time once more in Ashes and most of the King's Subjects wallowing in their own and one another's Blood. And their Party too would have felt the sad Effects of it no doubt as well as others So that the Consequence of it was to destroy the Government and that appears by the Parties being engaged in it it could not be to gain a Right to make this Hubbub and ado to arrest the Magistrates of the City and then take Advantage for some other wicked Purpose Another Point of Circumstance that is considerable in this Case is the particular Persons that were to be sued The Mandamus that was directed to the Lord Mayor and Aldermen and there is a Return made not by this or that or the other Man but in the Name of them all the whole Court. How comes it then to pass that my Lord Mayor Sir Henry Tulse and those other Gentlemen must be sued and arrested but I warrant you Mr. Cornish or his Party were not to be medled with No he had so much Zeal for Justice and to do the Defendant Right that if he should have been called upon to appear he would not have stood out an Arrest so just a Man he is and such a Lover of Right without all doubt but he was in no danger I dare say they loved one another too well to sue one another That I say Gentlemen is another Circumstance that carrieth Malice in it For I must tell you these things cannot be smothered they are as apparent as the Light And tho' it falls to my turn in this Cause to enmind you of them yet they are as well known to you all as the Passages in your own Families No Gentlemen there was not a Pursuit of Right in the Case it was a designed Piece of Villainy on Purpose to affront the Government nay to destroy it and set us all together by the Ears And if he were ten thousand times Mr. Papillon I would and must tell him so and if it were not for some such devilish End and Purpose he would never have been so greedy of an Office he had before declined and fined for and which he was only called to by a turbulent seditious factious Party that had further aims in it Otherwise I know Mr. Papillon's Humour so well that I am confident he would much rather have been contented to sit in his Counting-house than in Guild-Hall in a scarlet Gown Alack a-day I know Mr. Papillon knows how to spend his time to better Advantage to himself Ay but say the Council for the Defendant we did go on very tenderly and civilly and respectfully for there met at Mr. Cornish's House who I pray Mr. Papillon and Mr. Dubois and Goodenough the prime Attorney in this Cause And there forsooth they tell Goodenough be sure you do nothing but what is exactly according to Law and be sure you carry it very civilly and respectfully to my Lord Mayor good Mr. Goodenough Alack-a-day how wonderful pious and considerate these People are If Mr. Cornish had gone to my Lord Mayor as it was his Duty to do being then an Alderman we know it full well and said to my Lord Mayor there were such Persons at my House talking of such a matter and I come to advertize you of it and desire you would consider of it he had shewn his Piety and his Zeal and Love for Justice much more in that than in admitting such Cabals in his House But we know very well as well as if we were in them that they must go Hand in Hand in all these seditions and factious Businesses It is plain Gentlemen what the Design was from the Beginning to the End nothing but to cause a Tumult and Confusion in the City in Order to put that damned hellish Conspiracy for the destruction of the King and his Brother and every Man that was honest and loyal in Execution This is certainly known to you all and that there should be such a Parcel of People untowardly linked together in this matter not one man of which that they can pretend to be in anywise a Well-wisher to the Government or to any that have any share in it No they are all Persons that are obnoxious to the Government that had any hand in it but none of them Church of England-men or Friends to her Establish'd Worship notorious Dissenters or profligate Atheistical Villains that herd together This Gentlemen is plain English and necessary to be used upon all these Occasions So that it remains now upon your Consciences whether upon all these Circumstances that have been mentioned you think the bare obtaining of a Right in a Legal Course or some worse thing was designed We all know Mr. Papillon to be a wealthy Man an able Merchant one that had rather have minded his Affairs abroad or at the Exchange than the expensive troublesome Office of Sheriff of London but that something was to be done to wreak a damned malice and Revenge upon the Government And sure he must think as his Party it seems did that they would not be sufficient to subvert the Government unless he could get into that Office. This I tell him openly and let him or his Party make their Remarks upon it as they please But you are to Judge whether these things be a sufficient Evidence of malice to support the Plaintiffs Action There was questionless a Devilish Malice fixed in his Heart and Mind and he wanted an opportunity to effect it and he thought it for his own security to be best to take this Course and nothing else was in it For abundance of People have a Mind to do mischief but want opportunity and safe ways to do it in And Oh they rejoice if they hit upon a project that shall carry a specious pretence and colour of Law for then they think they are safe enough As in Case I have a Mind to do any particular Man an injury in his reputation and business the business must not be done down-right by going to every Body and saying such an one is Poor or a Beggar and do not trust him but I must cunningly and slily insinuate it I am sorry for such a Man I believe he is an honest Man but however he oweth Money and under this sort of Sniveling Canting Whining sly rate do any Man an injury whatsoever and yet forsooth he shall have no
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