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
any Counsel of worthy Men of the Robe or grave Citizens but by a Cabal of thirty or forty Rioters most of them in the Proclamation proscribed as Traitors and run away from Justice upon the Discovery of the Plot. All this speaks Malice and the worst of Malice the thing it self speaks it to pretend a Title with so little or no ground For you plainly observe there is no Title but this riotous Assembly to ground their pretences upon In the Prosecution of this Action there was no Order whatsoever they pretend for to take an Appearance I mean by those that really were at the bottom of the Design For the forty Men at the Consult at Russel's did not meet to be sure to give Order for an Appearance No they had other work to do An Appearance would not do their work For as Mr. Keeling at large could explain it they took all Opportunities to rise and make a Mutiny and take advantage of the Mobile and disturbances to bring about their mainPlot They did not care five-pence for the Appearance But when the Soldiers were up then the Plot was spolied and then my Lord Mayor may go home if he will. Gentlemen we shall prove what I have opened to you tho' I am perswaded not one of you but know it as well as I. Mr. Sol. Gen. Shew the Records of the Conviction of the Riot L. C. J. Hold Mr. Sollicitor I tell you before Hand that as I stopp'd them from urging the Trial for the Rior as any Determination of the Right of Election or as any ways tending to the Question now before us So I must not let you neither enter into that matter The business of the Indictment Conviction and Sentence upon the Rioters makes nothing either to the Right of Election or this Right of Action And therefore as I said to Mr. Ward it was nothing to the Purpose to mention it on that side So it is to no Purpose I must tell you to mention it on the other side For it was no Determination of the Point of Right one way or other And he could not give it in Evidence that that was a Litigation of the Matter in Dispute and upon the Decision of that Indictment till which he apprehended he had a Right he found it was against him and so desisted No the Right I say was not at all effected by that Trial one way or other For admitting they had a Right or you had a Right yet the gaining your Right must not be attempted in a wrongful manner but they had a lawful Way to come by their Right and if they pursued that well and good if not then they must take what comes of it Mr. Att. Gen. My Lord that Right was insisted on by them as the probable ground of their Action and that we say was no Right L. C. J. Therefore it is to no Purpose to urge it Mr. Sol. Gen. But my Lord with Submission our Answer to their Title is that there was no Colour of Pretence and this Conviction proves it L. C. J. No Mr. Sollicitor that is not any Evidence one way or other Mr. Sol. Gen. If your Lordship please it destroys their very Title which is the Number of the Poll. L. C. J. Lord the thing is as plain Gentlemen as any thing can be You or they may have a good Title and yet do a thing that is unlawful to bring the Title into Possession But then the punishing you for that unlawful Act is not an Evidence either against or for the Title nor doth determine it for you or against you Mr. Sol. Gen. My Lord we submit to your Lordship's Directions in it But then this we say to it the Question now is reduced to this Point Whether there were any probable Cause for the Defendant's Suit against the Plaintiff They have insisted upon it that there was from two grounds They call Witnesses who declare they were of Opinion that the Defendant had the Right of Election by the holding up of the Hands That is one of the probable Causes of their Suit. Now that is clearly gone by this single Point whether the Election was determined upon that holding up of the Hands or they went to a Poll to decide it If they went to a Poll then it is clear the Right of Election was not determined and he could have no Right to be Sheriff upon the holding up of the Hands Then they went a little further and offered in Evidence the Sheriff's Poll-books or the Numbers taken out of them wherein they say the Majority was for Mr. Papillon and so thereupon say they we brought our Action Now to that Objection it is proper for us with Submission my Lord to answer it that that can be no manner of Cause of Action in the World because say we that was no Part of the Election at all nor was it at all to govern the Question of Right one way nor other 't was a Number of Names taken out of the regular Course upon Elections by Persons that had no legal Authority nor was it such a Method as was a Foundation to ground any Opinion upon one way or other much less such a one as would be a Cause of Action These are all the grounds they went upon The first by their own shewing was no ground at all for there was no Determination of the Right upon the View but a Poll was agreed upon The other we shall call Witnesses to prove was irregular and so not legal Swear Mr. Town-Clerk Which was done Mr. Att. Gen. 'Pray' Sir will you give my Lord and the Jury an Account who is to govern the Poll upon the Election of Sheriffs or other Officers at the Common-Hall Mr. Town-Clerk My Lord I never knew a Poll about Sheriffs till about five or six years ago and that was the first Poll that ever I knew and it was between Mr. Jenks and Sir Simon Lewis and indeed it was the first that ever I did read of in any time within the City of London I think I have seen the Entry of all the Elections of Sheriffs that are extant in our Books in all times and I think I did never see in any of those Entries one Poll that was ever taken for Sheriffs it is only mentioned Such an one elected by the Mayor by Prerogative and such an one by the Commonalty Among other Books of the City's there is an old Book that is called by the Name of Liber Albus which speaking of the Constitution of the Common-Hall for Election of Sheriffs says First of all the Mayor shall chuse one of the Sheriffs for London and Middlesex for whom he will answer and then the Commonalty shall chuse another to join with him for whom they will answer And if there arise any Difference between them who is elected or not elected it shall be determined in the same manner as it is in the Common-Council This is all the Notice that I find in
advantage against me for it I shall strike a Dart into the very Heart of that Mans Credit and yet he have no Remedy So if I have a Mind to talk against the Government I will not do it aloud and speak what I mean openly but I will Whine and Snivel and Cant and make People believe I have dreadful Apprehensions of what is designing and yet not bring my self in any danger for I will keep within bounds all the while though I do more mischief than if I dealt fairly and above-board Alack-a day as Mr. Pilkington said I am for the Preservation of the Liberty and Properties of the Subject and I am for the Law but I find the City is strangely run down in their Rights and Privileges and there are very Arbitrary Proceedings And I am a Citizen and have taken my Oath to preserve the Privileges of the City and I will rather submit to the inconvenience of a troublesome Office than let all run thus and immediately he sets himself Cock-a-hoop as if there were no one that took care of the City besides himself and he were such a Patriot that there were none like him And he and Mr. Bethel and Mr. Cornish forsooth are the only Men of the times the only good Men Men that are for the Liberties and Properties of the Subject and the Rights of the City Whereas these are the only Men that have made an Invasion upon them and done what they could to destroy them and God knows we might all of us have enjoyed very quietly every Man his own if these contesting Rioters and busie Factious Fellows had not come among us Every Honest Man I tell you knows this to be true Gentlemen as to the business concerning the damages that if you find for the Plaintiff is left to your Judgments to consider of and give what you shall think fit upon such an Occasion It is very true it is not so easie a matter to ascertain particular damages in such a Case nor is it in an ordinary way so easie to prove that because Sir William Pritchard was in Prison but five or six hours there he could suffer so much damage as comes to ten thousand pounds As in the Case of a Person of great Quality and Honour it is not easie to prove his particular damage nor in the Case of any of you that are wealthy able sufficient Citizens to say you are a Bankrupt when we all know it is impossible to be true and so no particular damage doth ensue that can be proved yet however if the thing for which the Action is brought were designed with Malice though the ill design be not effected that is no thanks to the Party nor is to weigh with you but the malicious design must govern you Now here I have taken notice to you that the Malice of this design here was not against Sir William Pritchard as such a particular Man but against my Lord Mayor that this Clan that met at Russell's was an overflowing of that Gall or Malice that was in his Heart If Mr. Papillon had brought an Action upon a Bond only certainly it had been nothing but what he might very well do or if he had pretended to sue for a bad Debt that if he had staid would have been lost it had been something But you see what it was and it is as apparent why it was in that Mr. Goodenough said to Keeling threatening him with the displeasure of the Party if he did not do it and Mr. Goodenough and Mr. Brome were such Strangers to one another that he must threaten Brome to complain of him if he did not execute his Writs presently Do they think all Mankind are so dull or blind as not to see through such thin Artificial stuff as this Gentlemen this is the matter The Government is a thing that is infinitely concerned in the Case that makes it so popular a Cause The Government of the City the Honour of your Chief Magistrate and indeed the Honour of the King whose Substitute he was is concerned and that puts a weight upon your Inquiry into the damages of this Case You are to consider you give damages to the Plaintiff not as Sir William Pritchard but as Lord Mayor And your severity in this Case will deter all People from entring into Clans and Cabals to make disturbances and affront the Government It is a thousand times better to keep within their own bounds mind their Callings and Imployments and concern themselves with their own Affairs and leave the administration of the Publick to them to whom it belongs and is intrusted with And according as we say in the Law Maxime so say I to Mr. Papillon and all the Party Ad Consilium ne accedas anicquam voceris And do not be scared with imaginary dangers and groundless Jealousies into tumultuous and disorderly Courses You had much better keep in your Counting-House I tell you again and mind your Merchandice Nay and I do not doubt but you would much rather have done so if there had not been some further fetch in it It was not I dare say out of a frank generous humor to oblige the City that Mr. Papillon would have spent his time and money in the Office of Sheriff no I know he had better ways to imploy both It was not the Generous mind of Mr. Bethel that called him on to be Sheriff of London to entitle him to spend his money but on purpose to be one of the first that should turn all things upside down in the City and disturb the Government And they that succeeded him carried on the Project and they that would have been in but could not had a mind no doubt to follow so Worshipful an Example as he laid before them Then the Jury withdrew to consider of their Verdict and after half an hours stay returned and found for the Plaintiff and assessed Damages to Ten Thousand Pounds and Costs to four Marks L. C. J. Gentlemen You seem to be Persons that have some Sense upon you and consideration for the Government and I think have given a good Verdict and are to be greatly commended for it FINIS The Matters of Fact in ELECTION of SHERIFFS in the Year 1682. Faithfully reported and the Miscarriages of Sir JOHN MOORE then LORD MAYOR and some other Persons in this Matter briefly declared THE open and bold Invasion made upon the Liberties and Franchises of the City and that attended with a Contempt of the Laws of the Land as well as the ancient Customs and Usages of the Corporation doth not only serve to justifie our complaining of the Rape committed upon the Rights and Privileges of the Free-men of London but invites us to detect and lay open the unreasonable as well as illegal ways and methods that have been taken for the overthrow of whatsoever we enjoy either by Law Prescription or Charter For as the electing of Sheriffs is granted by Charters and confirmed by divers
in checking and rebuking some Gentlemen who had the courage in his hearing to claim their Rights Surely as his Lordship hath taken no notice of what befel Sir Samuel Sterling and Sir Edward Bromfield for Offences not near so heinous as those he is guilty of so he never read of one Sir Nicholas Brember Lord Mayor of London that was condemn'd to be hang'd in Richard Knighten the 2d's time and with much ado upon the King's intercession had the favour to be beheaded and this for neglecting the duty of his Place and acting conformably to the dictates of Court Ministers particularly for undertaking at the pleasure of the King to be Mayor without the consent and against the will of the Citizens And as this may instruct Sir John Moore what he may in due time expect seeing the imposing such Officers as Sheriffs upon the City not only without the concurrence but against the Declaration of the Free-men is a much greater Crime than the serving Mayor at the Command of the King without their consent so it may forewarn Mr. North and Mr. Box what is likely to befall them if they take upon them the Office of Sheriffs against the Will of the Citizens For if King Richard's requiring Sir Nicholas Brember to hold Mayor without being duly Elected could not save his Head from the Block much less can Sir John Moore calling these Gentlemen forth to the Office of Sheriffs protect them from the Punishment to which by the Law they shall be found liable for so doing And as they will be bold Men that will undertake the Office of Sheriffs upon the bare Authority of my Lord Mayor's word so I know not how the present Sheriffs can resign the Gaols c. unto such persons who pretend to the Office of Sheriffs by no better Right Nay I will be bold to say That should my Lord Mayor and the Court of Aldermen have the confidence to swear Mr. North and Mr. Box on Michaelmas Eve that the Common-Hall may Vote them out and chuse others in their Room on Michaelmas-day But it is pleasant to observe how this pretended Election of North and Box for Sheriffs against the ensuing Year works already with the Papists and our Masquerade Protestants for they not only begin to talk of blasting the belief of the Popish Plot but of Hanging Protestants by Wholesale And whereas Mr. Duncomb was contented a few days ago with the Lives of 9 or 10 nothing less will now serve them than the destroying of Scores if not Hundreds and this within the compass of London and Middlesex However this we have to rely upon that whereas Mr. North had only 107 hands and Mr. Box 1353 in all the Books Mr. Papillon and Mr. Dubois had upwards of 2700 Hands a piece reckoning in my Lord Mayor's Books with those of the Sheriffs and were Proclaimed to be duly Elected by the proper Officers And as we cannot think that the King will connive at so unjust a thing and which so directly subverts all the Laws by which he hath sworn to Govern so we are assured that the Judges in his Majesty's Courts will esteem no punishments severe enough as well for them that shall act as Sheriffs by no better Warrant as for him that hath taken upon him to declare them for such against all Law as well as President And as my Lord Mayor may be already sensible how his Fellow-Citizens resent his late illegal carriage and behaviour towards them by the many Actions entred against him to which they have demanded appearance so he will find that all that is hitherto done in order to right themselves and chastise his usurpation upon their Franchises is but like a few drops before a strom in comparison of what he must afterwards look for Nor must Sir J. E. and Sir W. P. c. think to escape being called to an account not only for abetting the Mayor in all these Invasions upon the Privileges of the City but for exciting him unto and hurrying him upon them And as it is evident what esteem they have of his Lordship by using him as a Tool to do such unjustifiable and enormous things which were they themselves in the Chair they would neither have the boldness nor indiscretion to attempt so their thus managing a Person whom they stile their Friend as well as one to whom they are bound by their Oaths to give safe and good Advice rendreth them Offenders against Truth Justice and the Rules of Friendship as well as against the Rights of the Corporation and their own Oath And as for other Officers they ought to reckon themselves accountable as for other misdemeanors in this Affair so for disobeying their Masters in refusing to pronounce and proclaim what the Common-Hall whose servants they are required and commanded them to do And should the Commons of London quietly digest and overlook the disobedience and obstinacy of these Fellows whom they have raised and made I will say that they have not only forgotten their Authority but that they deserve to be ridden and trampled upon by their meanest Officers P. S. The after Proceedings of making Sir Pet. Rich Sheriff with the method used in Swaring him and Sir D. North into that Office the Hustings in Guild-Hall being guarded by a Company of the City Trained Bands under the Command of Lieutenant-Collonel Quiney This and much more of that Days Transactions is too notorious to be forgotten or that it needs at large to be again related Yet the Reader may remember from this illegal Election issued the Death of those excellent Persons the Lord Russel Col. Sidney c. and the designed Ruine of that worthy Citizen Tho. Papillon Esq FINIS
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
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
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
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
and enmind me of what I forget or wherein I may mistake For Gentlemen I assure you for my own Part I would not have the Law made subservient to any Purpose but the exact Rule of Justice I would to the best of my Understanding in all Cases servare jus illaesum preserve the Law and the Right of every Man inviolable I would have the Law of the Land to be the measure of my own and all other Men's Actions And I hope no Man can justly I am sure I do not know they can complain of any Breach or Invasion that is made in the Courts of Justice either upon Law or Right But all those that have the Administration of Justice committed to them by the Government do behave themselves with all Equity and Impartiality towards all the King's Subjects And the Law has as full and free a Course and Justice doth every where take place as much as can be desired by any honest and good Man. Gentlemen in this Case that you now are to try I must first of all tell you that this Business of the Right of Election one way and the other hath been too much insisted on on both sides And I speak it because tho' I my self in my own Mind know what of it is true and what not yet I conceive it not so proper to be mentioned in this Case it being no legal Evidence to the Point in Question Now it is a Duty incumbent upon you to observe and upon the Court to suffer nothing to be urged so as to have any weight with you but what is legal Evidence That you are only to mind Gentlemen So that if I mention to you any Point of Fact that hath not been given in Evidence as having a true Relation to this Issue you are not to mind what I say to you about it On the other side I must likewise acquaint you if there be any difficulty in Point of Law in the Case you are to observe the Directions of the Court who will be always ready to assist and direct you in it Or the Gentlemen that are of Council on the one side or the other may have the Matter found specially if they think there is Fact enough to be found to ground a Question upon Therefore Gentlemen for the Customs of the City of London as to the manner of Elections or who hath the right to manage them they are not at all material to this Business and if they were there is never a one of you but know it as well as we or any Body doth I my self had the Honour to serve the City of London in the Places of Common-Serjeant and Recorder several Years So long ago that not above one or two that sit upon the Bench in the Court of Aldermen have been longer conversant in Guild-Hall or know the Customs of London in those matters better than I do It is notoriously known to all that have had any Dealing in London or been acquainted with any thing there that till within these six or seven Years last past the Lord Mayor and Court of Aldermen and the Common-Hall used to go a-birding for Sheriffs you very well know what the Phrase means and perhaps it was not once in ten times that those that were chosen Sheriffs held but generally every Year there were I know not how many Elections upon sining off or swearing or some reason or other so that now and then there was but one Sheriff chosen for a great while together and now and then never a one from Midsummer day till near Michaelmas And the way was to consider such a one hath most Money in his Pocket Oh! then put him up for Sheriff And then if he went off then another would be found out And there was one old Deputy Savage that used to keep a black Book that would furnish Names for I know not how many Elections And who should be Sheriff so as to divide into Parties and Poll was never a Question before such time as Mr. Jenks that they speak of came to be put up and there the Dispute began then the Faction began to appear Now if any Man offers to tell me I apprehended always it was the Sheriffs Right to manage the Poll I would ask him how that can be a Right that never was done before let them shew me any one Instance of a Poll for Sheriffs before that time No it was notoriously known when the Polls began Persons did not think the Shrevalty such an Office that it was so earnestly to be coveted and desired Polls indeed used to be heretofore for the Bridge-Masters Places that are Places of Profit and Advantage and so for Ale-conners and the like those have been often in your time and mine Gentlemen we may very well remember them But this Office of Sheriff People were not heretofore so ambitious of as to poll for it but the City was glad if they could get any worthy and fit Person to accept of it And for the management of the Election we all can tell the manner of it as well as any thing in the World. After my Lord Mayor and the Aldermen were gone off the Hustings and retired to this Place the Common-Serjeant staying there with the Sheriffs used to make a Speech to the Common-Hall a Rehearsal of what had been before said by the Recorder and then received the Nomination of such Persons as were to be put to the Question for Election from the Common-Hall And upon the putting of the Question every Man held up his Hand for those that he desired should be chosen and if it could be decided by view of the Hands well and good and the Common Serjeant consulting with the Sheriffs and those about him declared their Opinion that the Election fell so and so on the one side or on the other but if doubtful or a Poll demanded by any one then they used to acquaint my Lord Mayor what was done in the Common-Hall and thereupon they gave Order for declaring the Election or granting the Poll and used to come down to the Hustings for that Purpose and no one ever thought that either the Common Serjeant or the Sheriffs or any Body else but my Lord Mayor had the Power of those Courts For the Common-Hall was always summoned by Precept from the Lord Mayor and when the Business was done or was to be put off to another day the Common-Cryer by Command from the Lord Mayor makes Proclamation You good Men of the Livery c. may depart for this time and give your Attendance here again such a Day or upon further Summons No Body ever talked of summoning a Common-Hall by any Body but my Lord Mayor He did it by Virtue of his Office and he dissolved it or adjourned it by Virtue of his Office. All this is as notoriously known to all Men that know any thing of London as the Faces of you of the Jury are to the People here or to one
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
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
Laws to the Citizens of London so the conducting the Election and declaring upon whom the choice through the majority of Votes does fall hath time out of mind appertained unto and been claimed by the Sheriffs And tho' the Common-Hall be not properly a Court save for the punishing my Lord Mayor and Aldermen when they transgress against the Duties of their Places and the Trusts reposed in them yet not only the Right of electing Sheriffs is in that Assembly and Convention but the Power of appointing the manner in which they will have the Election managed does entirely reside in the Members who constitute that great Convocation Yea so far is my Lord Mayor from having either a Negative upon the Hall or a Right to prescribe unto the Citizens whom they shall chuse that he hath not so much as Power and Authority to take the Suffrages of the Electors or to adjourn or dissolve the Hall without the leave and consent of the greater Number of the Free-men then and there present And as all this hath been declared and irrefragably demonstrated in several Papers already published so it hath been affirmed under the Hands of as good Lawyers as are in England and particularly of those Gentleman whom the City have thought worthy to be entrusted in the defending their Charter against the Quo Warranto put in for the seisure of it But in defiance of all that hath been said such is the easiness of my Lord Mayor to say no worse that he hath suffered himself to be prevailed upon to despise Law violate Charters and act in direct opposition to the Duty of his Place and all this for the gratifying of those who have not only commenced a Suit for the subversion of the Corporation but openly profess'd that they seek the Destruction of its best and most honourable Members And as the recounting the chief Heads of the matter of Fact is indispensably necessary for the Information of the present as well as future Ages so the bare rehearsal of those things will fill the World with Amazement as well as proclaim the Guilt of some Persons both to this and following Generations And that which offereth it self first to our notice is the Accession of some Ministers to my Lord Mayor to procure him to drink to Mr. North which his Lordship without the least Consideration of that Gentleman's fitness for the Place or any attendance to the Design in subserviency whereunto that motion was made unto him First tamely complied with and afterwards performed notwithstanding the consequences which would thereupon ensue were faithfully represented unto him The next step which his Lordship took in Pursuance of the like Advice was to run counter not only to ancient usage but to an Act of Common-Council 7 Car. 1. in sending for Mr. North and making him seal a Bond to hold Sheriff for the Year ensuing before he was so much as named or proposed to the Common-Hall that was not till Midsummer-day which was some weeks after my Lord Mayor had caused him under the for feiture of 1000 l. to undertake to serve The third Advance made by Sir John Moore against the Duty of his Place and the Customs of the Corporation was his altering the Form of the Precepts for the summoning the Common-Hall against the 24th of June And it is remarkable that whereas not only by the Charters the Citizens are to meet to chuse annually from among themselves Sheriffs but that all former Precepts run in a strain importing their being to assemble to elect Sheriffs the present Mayor did by an unpresidented and arbitrary Power summon them to convene to confirm one Sheriff whom he had drank unto and to chuse another Nor could his Lordship stop his Irregularities here but both after a Declaration upon whom the Election had fallen through the majority of Hands and after the Poll which had been demanded and wherein himself had acquiesced was peaceably and fairly carrying on he came attended with a Company of Men whereof many were not Free-men divers were armed with Swords and several were known Papists and not only interrupted the Poll but contrary to Law and Right assumed to himself a Power of adjourning the Hall. And having thus far embark'd in sinistrous and unjustifiable ways his next Proceeding was partly by himself and partly by Citizens whom he countenanced to misinform his Majesty and contrary both to Truth and his own Knowledge to abuse the King in causing him to believe that divers peaceable Persons had been guilty of a Riot upon which misreport as the two present Sheriffs were committed to the Tower so the principal blame of it must be imputed to his Lordship And as it is the first instance on the File of History of Persons being indicted of a Riot when lawfully assembled together and quietly proceeding in that which they met about So I question whether our Law-Books furnish one Example of the Council-boards committing two Officers whose Place and Duty it was to manage the Poll and govern the Assembly not only without the hearing of any to speak in their behalf but in a Case the Cognisance whereof belongs to the Courts of Common-Law But his Lordship's Illegalities hitherto had been both ascribed to the ascendancy which some had gotten over him and had been easily pardoned had they terminated here but it seems he was too far engaged to retreat and therefore his next Step was to take upon him contrary to Sense and common Reason as well as Law to adjourn the Common-Hall July 5th not only by a Gentleman who being no Free-man could not be substituted his Lordship's Deputy or locum tenens but by Words signifying only a desire that they would adjourn which did not import the adjourning of them but left it to themselves whether they would do so yea or not And accordingly the Hall without whose Consent they cannot be adjourned nor dissolved by any till they have finished the business about which they are assembled not only refused to be adjourned but required the Sheriffs to go on with the Poll. Which as it was managed with all Prudence and not shut up till after more than usual and due Proclamation yet his Lordship would not rest satisfied with what was then done meerly as is to be supposed because the Election fell upon Mr. Papillon and Mr. Dubois and therefore obtained an Order from the King for a new Hall. For missing what he had designed in getting the present Sheriffs turned out by a Convention intended to have been made up of one Party of Men which would have been called a Common-Hall had not other Citizens upon smelling the Project assembled without Warning he had no other Retreat left but to apply to his Majesty for an Order to begin again And tho' we have nothing to say concerning his Majesty's Order save that the printing it for C. R. by which Persons upon the first view are apt to think they meant Charles Rex did not express that