THE TRYAL OF Tho. Pilkington Esq Sheriffs Samuel Shute Esq Sheriffs Henry Cornish Alderman Ford Lord Grey of Werk Sir Tho. Player K nt Chamberlain of London Slingsby Bethel Esq Francis Jenks John Deagle Richard Freeman Richard Goodenough Robert Key John Wickham Samuel Swinock John Jekyll Sen. FOR THE RIOT AT GUILD-HALL On MIDSOMMER-DAY 1682. BEING THE Day for Election of SHERIFFS for the Year ensuing LONDON Printed for Thomas Dring at the Harrow at the Corner of Chancery-Lane end in Fleetstreet 1683. May the 11. 1683. I do Appoint Thomas Dring to Print this Tryal and that no other Person presume to Print the same Edm. Saunders On Tuesday the Eighth Day of May at the Sessions of Nisi Prius at the Guild-Hall of the City of London held there for the County of the said City before the Honourable Sir Edmond Saunders Knight Chief Justice of his Majestie 's Court of King's-Bench an Information was brought at the King's Suit against Thomas Pilkington Sheriff Samuel Shute Sheriff Henry Cornish Alderm Ford Lord Grey of Werk Sir Thomas Player Kt. Slingsby Bethel Esq Francis Jenks John Deagle Richard Freeman Richard Goodenough Robert Key John Wickham Samuel Swinock John Jekyll Senior c. The Court being sate the Tryal proceeded CRYER YOU Good Men of Nisi Prius summoned 〈◊〉 appear here this Day between our Soveraign Lord the King and Thomas Pilkington and others Defendants Answer to your Names and save your Issues The Jury appeared Mr. Sommers MY Lord I am to Challenge the Array Mr. Thomson My Lord I desire this Challenge may be read The Challenge read in French L. C. J. Gentlemen I am sorry you should have so bad an Opinion of me as to be so little a Lawyer not to know this is but a Trifle and nothing in 't Pray Gentlemen don't put these things upon me Mr. Thomson I desire it may be read my Lord. L. C. J. You would not have done this before another Judge You would not have done it if Sir Matthew Hale had been here Mr. Thomson My Lord I believe if there had been nothing in it it would not have been sign'd Mr. Att. Gen. Very few but Mr. Thomson would urge it Mr. Thomson I don't know whether you think so or not Mr. Attorney but I have a great deal to offer if you please to Answer it We offer our Challenge in Point of Law L. C. J. There is no Law in it Mr. Thomson We desire it may be read in English L. C. J. Why Do you think I don't understand it this is only to tickle the People The Challenge read by the Clark accordingly Mr. Serj. Jefferies Here 's a Tale of a Tub indeed L. C. J. Ay it is nothing else and I wonder Lawyers would put such a thing upon me Mr. Thomson My Lord we desire this Challenge may be allowed L. C. J. No indeed won't I there is no colour for it and I am apt to think there are not many Lawyers in England would have put such a thing upon me Because I am willing to hear any thing and where there is any colour of Law I am not willing to do amiss Therefore you think I am so very weak without you think I was always so and therefore may be so at this time For pray now consider if so be the King's Counsel should come and plead this Challenge what is the Consequence of it I thought you would have said that the Sheriffs had been a kin to the King but you have made it worse You do come with a long Tale here of the whole Merits of the Cause and more than yet doth appear and by this you would have the Challenge to be allowed In such a Case a man may come and tell a Tale of the Merits of the Cause and then it must be tryed by the Challenge If the Sheriffs do return an Inquest for the King and the Sheriffs do hold of the King a Fee-farm or have a Pension or an Annuity from the King the Book doth say that in some Cases it is a Challenge for though they cannot be challenged as being favourable for the Kinâ—â—et for those reasons they may be challenged But what is here Here you tell a long Process concerning a Difference between the Mayor and the Sheriffs and all this matter is wrapt up altogether and if all this were true it is no Challenge at all Mr. Thomson We shall speak with all submission to your Judgment my Lord. Good Mr. Attorney give me leave Mr. Att. Gen. I move for you Mr. Thomson If you please you may move for your self I don't need you to move for me My Lord with submission the Information is not good My Lord it is an Information that doth set forth that my Lord Mayor had right of Adjourning the Poll when an Election is to be for Sheriffs My Lord if he had not that Right it can be no Riot according to this Information My Lord upon his Adjourning Mr. Sheriff North was Chosen My Lord if that Adjournment was not according to Law Mr. Sheriff North never was Sheriff of London Then my Lord here is the Case in this Question of Title for Mr. North doth come in question whether he be a legal Sheriff of London L. C. J. Prove to me now that of Sheriff North Pray what Annuity Pension or Fee-Farm hath he as Sheriff of London whereby he is concerned Mr. Thomson My Lord there are other Reasons which I shall shew to you and the first Reason my Lord in this Case is this it will appear the Election of Mr. North is interessed in this matter and if Sir John Moor had not an Authority to Adjourn the Poll Mr. North was not chosen duly Sheriff now if there is a Sheriff chosen in Point of Right it is a good Challenge L. C. J. In point of Profit and not all neither for he that holds Land in Capite of the King cannot be challenged for all that Mr. Thomson I think my Lord this is a common Case in our Books That if in case a Sheriff be concerned in point of Title this is a principal Challenge because that he is interested in that Title he is no person by Law to return a Jury I don't doubt but your Lordship will do that which is right and according to Law My Lord I say where a Sheriff is interested in point of Title he is no person by Law to return a Jury and this Question will appear plainly upon this Information for if in case this was not a lawful Adjournment by Sir John Moor this is not a lawful Return Gentlemen my Lord I know will hear me if you have but patience I always speak and stand up for my Clients as I ought to do If you please to let me have your liberty I have my Lords If a Sheriff be concerned in point of Title it is a principal Challenge and the Sheriff ought not to return the Jury but the Coroner And my Lord much more
that the Supream Powower should be in the Livery-men that are expresly appointed to act by a Common-Council which is indeed the Representative of the whole City But this Gentlemen being done by the Sheriffs having Usurped the Power of the Mayor they did proceed in a riotous manner when the Mayor attempted to go out of the Hall they struck him struck his Hat off and pressed several of the Aldermen the Evidence will make out in what an Outragious manner it was carried on If the others had made Opposition how soon had all been in Confusion upon this Usurpation that the Sheriffs had set up for themselves that they are the Delegates of the People and must appear to be the Supream Magistrates of the City of London I think the Citizens themselves will never endure that those that are but County-Officers should ever invade the Government of the Corporation Gentlemen We will shew you the Particulars of this and you have nothing to enquire after but whether they are Guilty of the Riot or no. Mr. Sol. Gen. My Lord We will call our Witnesses and prove our Case by these Steps For the Question That whether or no the Defendants in the Information were Guilty of a Riot in continuing the Assembly after my Lord Mayor had adjourn'd them we will prove it by these steps that it is in the Power of the Lord Mayor to call a Common Hall and adjourning the Common Hall That my Lord when the Common Hall was Assembled for the purpose of Electing Sheriffs that he did Adjourn the Common Hall and that contrary to his Adjournment the Sheriffs continued it declaring my Lord Mayor had no Right so to do And that afterwards my Lord Mayor commanded them to depart and they continued their Assembly there in a very Riotous manner And as my Lord Mayor came down they offered Insolencies to his Person and they continued the Assembly there in a Riotous manner and commended the Sheriffs that did assert their Right following them in a Riotous manner into Cheapside crying out in a factious manner God bless the Protestant Sheriffs Mr. Serj. Jefferies My Lord We would call our Witnesses but for the sake of the Gentlemen of the Jury and that the thing in question may be more intelligible I beg leave to acquaint your Lordship with the Methods that have always been observed in the Elections of this City My Lord We will make it appear and I think it will not be doubted by any man that knows the City of London That Common-Halls are always Summoned to appear by the Intimation of the Mayor for the Mayor himself at any time when he finds an occasion either for the Assembling of a Common-Councel or the Assembling a Common-Hall c. Issues forth Precepts they are words that you Gentlemen do understand very well to Summon a Common-Hall or Common-Councel as he thinks fit It is very true though they do usually make Summons for Midsommer-Day yet Midsommer-Day being a publick and notorious Day appointed for the Choice of some particular Officers they are not so exact in the Summons for that Day for they do presume that every body takes notice of the Business of that Day But whereas in the Record there is only notice taken concerning the Election of Sheriffs on Midsommer-Day it is notoriously known to all Gentlemen that are Inhabitants in London There is also on that day a Choice of Chamberlain and Auditors of the Bridg-house and Chamber Accounts and so down to Ale-Conners and the Sheriffs of London quâ Sheriffs of London in these Elections are no more in the Case than any private man is That as soon as the Election of these Officers is dispatched for I my self have had the Honour to serve the City some time and know their Methods very well therefore I take the liberty to explain it to some of these Gentlemen that are Foreigners My Lord I say as soon as ever this is done an Account is given to the Mayor and Aldermen and the Mayor orders the Dissolving the Assembly And my Lord it was frequent before people were so ambitious to come into the Office of Sheriffs as they have been within two or three years last past till which time it was not known that People were fond of the Office for they used to go a Birding as they call it to get in Persons that would Fine off from the Office rather than undergo the burden of it and when that was done then the usual Method was to call another Common-Hall for the Election of another But never made application to Mr. Sheriff to let them have a Common-Hall but the common way was to go to my Lord Mayor's House to know his Pleasure and he of himself appoints a Common-Hall at such time as he prefixes and then intimates the purpose of their meeting and orders the Sword-bearer or other Officer that is Attendant upon his Person in his House to send forth Precepts accordingly and there may be sometimes but one Sheriff at a Common-Hall I have known it sometimes when there hath been never a Sheriff and yet they have not thought they have wanted a Judge of that Assembly but my Lord when all the matter is over and persons are declared to be chosen into this or that or the other Office in the Common Hall then an Officer of the City not an Officer of the Sheriffs but an Officer which is called by the name of the Common Cryer he makes Proclamation upon the Hustings where my Lord Mayor is Judge for all Gentlemen to depart for that time and to give their attendance there at another Summons And now my Lord to make the thing a little more intelligible there is a difference between the Choice of the County Officers and the Corporation Officers For at the Election of City Officers the Common Serjeant the Common Cryer and Town Clerk are the Officers that attend and manage the Common Hall where my Lord Mayor is looked upon to be the Superintendent but at the Election of Parliament men the Writ is directed to the Sheriff and they interpose in all the management and then the Common Serjeant and Common Cryer have nothing to do but at such times the Secondaries of the Compter which are Deputies to the Sheriffs they come and manage the whole Affair This I tell you because I have been pretty well acquainted with the Methods of the City I do very well remember I had the Honour to serve the City of London at that time Sir Robert Clayton was Lord Mayor and there was a great occasion to try a person about the Assassination of Mr. Arnold and the Question was Whether they should proceed to a Poll or not because they were to go to the Sessions-House in the Old Baily in order to the trying of that person That worthy Gentleman being then in the Chair I had the Honour to sit by him ordered the Court to be adjourned for a day or two because they were
but I never understood that he got by it if you prove that he hath got any considerable matter by the Office it would be something in the case that he should be greedy of the Office But look ye on the other side if there be nothing in it one way or another that there is profit accruing to him by the Office what can the Law say But here was the question between indeed and in truth as you do open it between the Mayor Sir John Moor I think and the Sheriffs that then were that was the question between them Now what is this in point of Law that the Sheriffs must be challenged They must be challenged because it is return'd by these Sheriffs You can't say the Sheriffs do favour the King Mr. Sol. Gen. My Lord We trouble your Lordship about a Question very unnecessary The Sheriff is not concerned in this Question neither can the Consequences affect the Sheriff any way Sir Fr. Win. My Lord If I don't shew that he is concerned notwithstanding what Mr. Solicitor says it is another matter If this had been upon a common Riot and not related to the Election of Sheriffs it would have been harder against us I only offer a word or two and submit to your Lordship This Information doth take notice of the Election of Sheriffs and of an irregularity in disturbing the late Lord Mayor about adjourning the Poll I do believe my Lord it will not be denied but that in this Cause a Rriot or no Riot will depend upon the Poll or the Mayors adjourning If that be so that which your Lordship is pleased to urge That the Sheriff gets nothing yet that he hath assumed the Office de facto appears by the Return that is very plain my Lord he hath assumed it and did exercise it If it appear to be legal or illegal upon the Adjournment by the Mayor then it must have one of these two Consequences my Lord I humbly conceive till the Shrievalty had been agreed it would have done very well for Mr. Attorney to let this Riot alone unless he would have made it a common Riot if he would have been pleased to stay till the Law had determin'd who had been the right Sheriffs then Process would have gone for the King And my Lord there is another thing under favour if Mr. Attorney had been pleased to prosecute for the King then surely my Lord there was a way to lay it so that the Process should be returned by persons uninterested and not by the Sheriff whose Election is in controversie I don't argue out of the Record but by the Record it self If in case it doth appear still to be under consideration if that be so I do humbly conceive because that right of Election of Sheriffs is undetermined that therefore he might have made the Process to the Coroner if he would have made it before but it should not be heard before the Election of the Sheriffs because it will be a Riot or not a Riot upon that L. C. J. Good now Sir Francis you mistake it could not be to the Coroner Mr. Sol. Gen. My Lord It is but wearying your Lordship to no purpose Mr. Wallop If he be not Sheriff that Title of his depending upon my Lord Mayors Adjournment which is reasonably set forth it is concerned in the consequence of the Cause Mr. Attorn Gen. If you please my Lord I will answer what hath been said Mr. Thomson did first urge according to the Rules of Law if the matter that appears upon the Record to be the thing in question that if the Sheriff be interested in that matter that that is a good cause of Challenge that is a good Rule and the Law is so but that is nothing to this purpose my Lord here upon the Record there is nothing in question but a Fine for the King nothing to be recovered Where Lands are in question as in an Ejectment if the Sheriff be interested in that Land in that case that is a good Challenge but here appears nothing by the Record here is nothing in question but a Fine for the King so that certainly that Case in point of Law is nothing to the purpose Then they say it appears in the Record by Recital and in the Information for that is the substance of all they say It doth appear there as it is said that the Mayor did adjourn the Court and so the question of the Riot will very much stand upon the validity of that adjournment But it doth not wholly stand upon that for there are many outragious actions assaults of the Mayor throwing off his hat great clamors thrusting and pressing many of the Aldermen nay bruising them so that this Riot notwithstanding the Adjournment be that as it will will appear in the upshot of the Cause to be a Riot notwithstanding that question But in the second place the question of Mr. North's being a Sheriff or not a Sheriff no ways depends upon this Adjournment no pretence of the Title depends upon that so my Lord they have suggested a thing that is forreign to the Record it depends purely that upon a Custom of the City for my Lord Mayor to elect not upon the power of my Lord Mayor's Adjournment for after that they proceeded on with the former choice of Mr. Papillion and Mr. Dubois so that whether that Adjournment be a good Adjournment or no good Adjournment his Title will depend upon that whether at the second meeting or no Mr. Papillion and the other Gentleman be well chosen and Mr. North not well chosen so that his Title doth not depend upon this Question one way or other But my Lord that which makes this as frivolous a thing as ever was urged in a Court of Law my Lord that it should have been upon Rule before any Direction to the Sheriff or Coroner if they would have had Process they have suggested matter of Fact wholly out of the Record matters have been suggested that it might have been tryed before it came to Direction now there appears nothing in the Record to bring a Challenge to try the Matter nay as they themselves say it is to try the Merits of the whole Information that the Information depends upon that Question Whether the Mayor may adjourn It is a great Usurpation upon the Government of this City as they have done in other things to the King My Lord Mayor is the Supreme Magistrate here and the Sheriffs have nothing to do in this Point and therefore I pray it may be over-ruled and that the Jury may be sworn Mr. Thomson We would have my Lord the benefit of a Bill of Exceptions Mr. Serj. Jefferies Swear the Jury swear the Jury Mr. Thomson I have another Challenge L. C. J. I tell you plainly I see nothing in it for a Bill of Exceptions Mr. Thomson We desire we may have the benefit of a Bill of Exceptions My Lord if this be the Case of trying
a Riot we must take what advantage we can in point of Law Mr. Serj. Jefferies We come to counsel the King as we ought to do by Law Mr. Thomson My Lord I challenge on the behalf of my Lord Gray this Jury Challenge read Seignior Gray Mr. Attorn Gen. They call that a Newgate Challenge Mr. Wallop That was a Challenge taken at the Old Baily Mr. Thomson And over-ruled Mr. Serj. Jefferies And I pray it may be so here L. C. J. I think your Challenge is that they are not Sheriffs Mr. Thomson My Lord is the Fact true or false I desire of these Gentlemen if it be insufficient in point of Law let them demur Mr. Serj. Jefferies Pray tell me Robinhood upon Greendale stood and therefore you must not demur to it Mr. Thomson If the Challenge be not good there must be a defect in it either in point of Law or in point of Fact I desire on the behalf of my Lord Gray this Challenge may be allowed Mr. Serj. Jefferies And I pray for the King that it may be over-ruled L. C. J. I think you have owned them to be Sheriffs already Mr. Serj. Jefferies My Lord Gray did own it in his Challenge because there were no Knights L. C. J. We try a great many Nisi prius here sometimes two or three days after the Term every Defendant that thinks it goes hard with him we must have a Tryal still whether the Sheriffs be Sheriffs or no This that you have done now may be done in every Cause that we may be trying Upon your Evidence if you can prove them none you go a great way Mr. Thomson My Lord We desire the Challenge may be allowed or otherwise a Bill of Exceptions My Lord we pray a Bill of Exceptions Mr. Serj. Jeoffries This Discourse is only for discourse sake I pray the Jury may be sworn L. C. J. Ay ay swear the Jury Sir Benjamine Newland c. sworn Mr. Thomson We challenge Mr. Fensil he hath given Evidence in this Cause at the Council-Table L. C. J. What then Mr. Attorn Gen. My Lord They shall have all fair L. C. J. Mr. Attorney says he won't stand upon it Mr. Thomson My Lord we pray a Bill of exceptions L. C. J. I think many would not have offer'd it besides you Shall I go and sign a Bill of Exceptions to let all the World know this is so and so all the World must try whether they be Sheriffs of London Mr. Thomson My Lord don't say so for I think all the Councel in the Court would L. C. J. If it doth fall out that in truth they don't happen to be Sheriffs surely you shall have all the advantage that can be for you but pray don't think that I will put off a Tryal upon every suggestion that the Sheriffs are not Sheriffs You shall have all that is Law by the Grace of God and I am not afraid that you or any man should say I don't do justice I am not bound to gratifie every man's humour I am to do according to my Conscience and the best of my knowledge and according to my Oath and I will do that and gratifie no man The Jury Sir Benjamine Newland Sir John Matthews Sir John Buckworth Sir Thomas Griffith Sir Edmund Wiseman Percival Gilburne Henry Wagstaff Barthol Feriman Thomas Blackmore Samuel Newton William Watton George Villars Cryer O yes O yes O yes If any man can Inform my Lord the King's Justice the King's Serjeant or the King's Attorney or this Inquest now to be taken c. Mr. Dolbin May it please your Lordship and you Gentlemen of the Jury This is an Information brought by the King against Thomas Pilkington Gentlemen the Information sets forth That upon the 24 th of June last in Guildhall there was a Common Hall summon'd by Sir John Moor Knight and thereupon held for the Election of Sheriffs for the Year then ensuing the Feast of St. Michael And that on the same 24 th of June Sir John Moor then Mayor adjourn'd the Court till the Tuesday following by Proclamation That after the said Adjournment my Lord Mayor made Proclamation for all Persons to depart and that the Defendants intending to disturb the Peace of the King after the Adjournment aforesaid did unlawfully with many Persons unknown meet together and Riotously assault the Lord Mayor And after the Adjournment by Proclamation two of the Defendants Pilkington and Shute by colour of their Office as Sheriffs of this City and the rest of the Defendants did continue the Poll and unlawfully affirm to the People That Sir John Moor had no Power to Adjourn them And that they continued this great Tumult three hours to the Terror of the King's Subjects and the evil Example of others and against the Peace of our Soveraign Lord the King To this the Defendants have pleaded Not Guilty c. Mr. Att. Gen. This Information my Lord is brought for setling the Peace in this City and to shew before you all who is the Supream Magistrate under the King in this City For that Gentlemen you see is grown a great Question Whether my Lord Mayor is not only in the Hall but in his Chair the Supream Magistrate Gentlemen I must acquaint you That my Lord Mayor in all times even before the City had the Election of him was the King's Lieutenant and the Supream Magistrate in the City and no Publick Assemblies could ever meet together without his Summons he was the great and chief Directer and this I believe in all your Observations that are of the Jury I can make it evident That this hath been the constant frame of this Government in the City For the Sheriffs Gentlemen they are no Corporation Officers they are County Officers as in all the Counties of England and they are the King's Officers for the execution of the King's Writs and the Preservation of the King's Peace but the Government of the Corporation is in the Mayor and not in the Sheriffs Gentlemen The Question now arising here is about the Election of Sheriffs it 's true there was very disorderly Tumultuous Proceedings my Lord Mayor he comes and doth appoint another day for them and discharges them at that time We will make appear to you that it was always his Right in all times both to Summon a Common Hall and dissipate it and appoint them another day or to Dissolve them as the Mayor did see cause The Mayor having according to the ancient manner Adjourned this Court the Sheriffs they proceed do not only refuse to obey but they proceed and make Proclamation That it is not in the Power of the Mayor taking upon them that which never any Sheriffs did in any time they make Proclamation contrary to what the Mayor had done and continue the Poll and proceed and Proclaim the Mayor had usurped that power which was theirs though afterwards they transferr'd the Supream Power to the Livery-men But I think no age will suffer
Sir Fr. Winnington Who Polled them Mr. Lightfoot The Sheriffs and the Officers stood and saw them go out and this is within these few years Sir Fr. Winnington Mr. Lightfoot I ask you thus now in all your Observations when there was any Contest who was Sheriff upon the Election and the Divisions during the time of Election and before it were at an end who did manage it the Sheriffs or the Lord Mayor Mr. Lightfoot When the Court had been proclaimed and the Recorder had spoken to them my Lord Mayor and the Aldermen withdrew from the Hustings and the Sheriffs and other Officers stood there with them then the Commons proposed who they would have put in nomination and they were put up then the Sheriffs have turned back to the Gentlemen upon the Hustings to ask their opinions how are your opinions concerning the Hands We do think it goes so then it hath been declared Sir Fr. Winnington By whom Mr. Lightfoot The Common Cryer or the Common Serjeant Sir Fr. Winnington You say as soon as my Lord Mayor withdrew during the time of Election the two Sheriffs managed the Hall Mr. Lightfoot In that manner with others Sir F. Winnington Mr. Lightfoot Do you remember who Adjourned the Hall when Mr. Bethel and Mr. Cornish were Chose Mr. Lightfoot I can't tell Mr. Ser. Jefferies Mr. Com. Ser. Are you Sworn Mr. Com. Serj. Yes Mr. Serj. Jefferies Pray will you tell my Lord and the Jury what you have observed in particular because I mentioned it in the time of Sir Robert Clayton mention how that was Mr. Com. Serj. My Lord when the Common Cryer hath made Proclamation the Lord Mayor and Court of Aldermen being set upon the Hustings Mr. Recorder makes a Speech as soon as that is done my Lord Mayor and the Aldermen retire into this Court leaving the Sheriffs and me and the rest of the Officers upon the Hustings and I there manage the Election and when the Election is made I go up to the Court of Aldermen and make Report of what hath been done in the Hall I declare the Election and I manage the Election and do it as the duty of my Place Mr. Williams Who manages the Election Mr. Com. Serj. I manage the Election I declare what is my opinion of the Election in the Hall and I come and make Report to my Lord Mayor in this Court then my Lord Mayor and the Aldermen and the Recorder come down again I remember particularly when Sir Robert Clayton was Lord Mayor it was about the Choice of Mr. Bethel and Alderman Cornish and there was a great disturbance in the Hall then I came into the Court and after I had made my Report I offer'd to give the Paper to the Recorder that then was Sir George Jefferies he told me that the people wou'd not hear him and therefore he wou'd not take the Paper Upon that Sir Robert Clayton said to me Prethee do thou speak to them they will hear thee if they will hear any body for the Hall was in a great uproar and they call'd to throw me off the Hustings and then I made Answer to Sir Robert Clayton Sir It is not the duty of my Office and when I do any thing that is not my Office I shall expect particular Directions Then saith he You must tell them I must Adjourn them till Munday because I go to the Old Baily to try the Assassinates of Arnold Thereupon the Hall was Adjourned and Proclamation made to depart and my Lord Mayor attempting to go was beat back twice or thrice but at last they let him and the Aldermen go and kept the Sheriffs and me till Evening At last Mr. Papillon came up to me Mr. Papillon says I I am glad to see you you will hear Reason says he why do not you go on with the Poll I told him my Lord Mayor had Adjourned the Hall Says he I did not hear it before but now you tell me so I will go out of the Hall Says I Sir you will do very well to tell the Hall so which he did and some went away and further Adjournments were made by the direction of my Lord Mayor Mr. Att. Gen. I would ask you a Question or two Who do you look upon to be the Chief Magistrate of the City Mr. Com. Ser. My Lord Mayor Sir Mr. Att. Gen. Pray in all your time till this was there no Uproar Did ever any Sheriff undertake to Control the Mayor in the business of putting Questions or taking Votes Mr. Com. Serj. Sir there was never any dispute till Mr. Sheriff Bethel was upon the Hustings and then there was Mr. Att. Gen. As whose Officer did you do it Mr. Com. Serj. My Lord Mayor's and the City of Londons I have nothing to do with the Sheriffs for when there is a Writ comes for the Choice of Parliament men directed to the Sheriffs I never do it but Mr. Secondary Mr. Att. Gen. I speak of later Disturbances Mr. Com. Ser. The first Dispute about Sheriffs since I was Common Serjeant was about Mr. Jenks and that Poll was taken by the direction of the Lord Mayor by the Town Clerk and my self and our Books say If there be a Dispute in the Common Hall it must be decided as in the Common Council It is in Liber albus Mr. Att. Gen. Liber niger Mr. Serj. Jefferies No Liber albus Mr. Att. Gen. Liber albus It is Liber niger they turn the white Book into a black Book now Sir F. Winnington At that time Sir when my Lord Mayor was willing to go to the Old Baily Did the Sheriffs do any thing farther Mr. Com. Serj. The Sheriffs did not meddle in the matter Mr. Serj. Jefferies Mr. King Pray give my Lord and the Jury an account of what you know of this matter Mr. Peter King I have been at a Court of Common Hall 28 years my Lord and have been concerned I never looked upon the Sheriffs to have any concern there And I do very well remember Sir George Jefferies I do remember and know they did always in ancient times take advice of the Officers by and they never did esteem themselves in those days to be any more concerned than as the best Officers to be preferred before the rest When my Lord says Come up they come in order the Masters and Wardens of the Companies Mr. Att. Gen. Who did do the business upon the Hustings Mr. King All of them Sir altogether Mr. Att. Gen. Was there never any difference about the Votes Mr. King Sometimes they have stood upon it Mr. Att. Gen. When there was a Question made to know who had the most who decided it Mr. King They generally asked one another What do you think and what do you think I speak for 20 years together since the King came in Mr. Att. Gen. I hope in God there hath been a King in England for 20 years though perhaps some of the Sheriffs that were then
Sword-Bearer Truly I know no such thing Mr. Thomson Mr. Sword-Bearer I would ask you one Question If in case the Common Serjeant or the Common Cryer or any other Officers do put a Question that the Commons would not have put who orders them to put the right Question Mr. Sword-Bearer I can't say any thing to that Mr. Att. Gen. After the Common Serjeant comes up and reports what is done then what doth my Lord Mayor do Mr. Sword-Bearer My Lord Mayor and the Aldermen go down to the Hustings and it is declared by the Recorder or the Common Serjeant by the order of my Lord Mayor I think my Lord Mayor went once down to give them some satisfaction upon a dispute Sir Fr. Winnington Mr. Man during the Election did you ever hear them Adjourn'd before it was over Mr. Sword-Bearer No Sir nor never heard any occasion for it Mr. Williams The Common Serjeant affirms himself to be a Servant to the Commons and not to the Lord Mayor and Aldermen have you known a Common Serjeant say he was a Servant to the Commons and not to the Lord Mayor and Aldermen Mr. Sword-Bearer I never was in a Common Hall upon any such dispute I am with my Lord Mayor Mr. Serj. Jefferies I have known a Recorder reprehended by a very learned Lawyer for saying My Masters the Aldermen Sir Fr. Winnington I ask you who hath the management of the Common Hall in the absence of the Mayor Mr. Sword-Bearer I am always here waiting upon my Lord Mayor Mr. Serj. Jefferies My Lord if your Lordship please we will rest here as to point of Right Now my Lord in the next place we will come to that which is a more immediate Question before you and we will prove the manner of it and the persons that are guilty for that is the next step we are to go Mr. Bancroft Mr. Williams My Lord they have laid in the Information That the Sheriffs are duly Elected for one year next following from the Eve of St. Michael now prove your Election to be for that year you have laid in your Information Mr. Thomson My Lord they have certainly in Fact mistaken their Information My Lord They do declare that the Common Hall was held according to Custom For the Election of Sheriffs to hold that Office from the Eve of St. Michael for the year next ensuing Now my Lord that is not so in Fact nor never was for the Election is for a year to commence on Michaelmas Day They take on the Eve the Office upon them but they do absolutely exercise the Office for a Year from that time from the Eve Now my Lord we say that Day is excluded we are sure it is a Common Case it is known very well as in a Lease the Habendum from any Date the Day of the Date is no part of that Lease it is exclusive and no part of the Term and therefore my Lord if they do not prove it as they have laid it we hope they will be non-suited Mr. Sol. Gen. That is another piece of Law Mr. Holt The Eve of Michaelmas Day we make this Objection and put you to prove it Mr. Serj. Jefferies Give us leave to go on Gentlemen let us prove what we think fit and if we have not made it out then make your Exceptions Mr. Holt Mr. Serjeant I think it is proper to put it now for if there be no such Election there can be no such Riot for they have made it a Riot in a special manner Mr. Serj. Jefferies Mr. Holt under your favour it is not a time for it now Mr. Att. General This is the oddest way these Gentlemen take upon them so I will not prove it and pray be quiet till I come to my time Sir F. Winnington Pray Mr. Attorney if we have an Objection to make if the Court pleases we may be heard Mr. Serj. Jefferies Certainly it was never known that when Mr. Attorney exhibited an Information to tell us how to prove it Surely Gentlemen you will give us leave to go on with our Proof won't yee Mr. Molloy Mr. Bancroft How long have you been a Servant of the City By whose Order was the Hall summoned Mr. Bancroft By my Lord Mayor's Mr. 〈◊〉 Who hath Dissolved them Mr. Bancroft My Lord Mayor Mr. 〈◊〉 Did you ever know the Sheriffs give any Order for the dissolving of it Mr. Bancroft No. Mr. Thomson Did you ever know it dissolved before the business was done for which they were call'd Did my Lord Mayor in your time either dissolve them or send them going till the Election was over Mr. Bancroft I can say nothing to that Att. Gen. Mr. Bancroft I would ask you this Sir Did the Sheriffs ever continue the Hall after my Lord Mayor had dissolved it Mr. Bancroft No I never knew that in my life Sir Fran. Winnington Mr. Bancroft I would ask you a Question I don't ask you who calls them or bids them go home during the time of the Election did my Lord Mayor ever meddle Mr. Bancroft My Lord Mayor withdraws Sir F. Winnington Who are those among the Commons that manage the business when my Lord Mayor withdraws Mr. Bancroft The Sheriffs and the Common Serjeant and the Common Cryer Sir F. Winnington Who manages the Election Who declares the Election Who declares who is chosen Mr. Banc. When the Election is made below then the Sheriffs come up and the Common Serjeant and the Common Cryer along with them and acquaint my Lord Mayor and he goes down and there doth confirm the Election and withal when the work is done he dissolves the Court. Mr. Williams Did you ever know a Poll for Sheriffs Mr. Thomson Do you take the Common Serjeant to be an Officer of the Commons of London or an Officer of my Lord Mayor's Mr. Bancroft I cannot be certain what he is Mr. Thomson If in case the Common Serjeant differ from them in declaring the Poll is it not usual for the Common Hall to order him to put it up again Mr. Serj. Jefferies Who does make a Judgment of the Election the Common Serjeant or the Sheriffs Mr. Bancroft The Sheriffs Mr. Serjeant Jefferies Do not the Common Serjeant make Observation as well as the Sheriffs Mr. Bancroft The Sheriffs give their Opinions in it Mr. Serj. Jefferies Now my Lord if your Lordship please if they had done we would desire to go on to our Fact for otherwise for ought I perceive we shall be in here till this time to morrow and they say we must not adjourn till the Cause is over Mr. Common Cryer heark you Mr. Common Cryer Were you present at Midsummer Day when this business happened Give my Lord and the Jury an account of the carriage then Mr. Com. Cryer I was there at the beginning of the Election I did make Proclamation afterwards there was a Poll demanded and the Poll was begun and I went home with my Lord Mayor afterwards my
is charged upon us is That we were in the Hall it seems and because there was this noise heard therefore we must be guilty In this crowd where we are I hear hissing especially at to'ther end of the Hall which of us are concerned in it is a hard matter to judge it is a hard matter and it were very well and it had been very happy if some of those persons had been apprehended for their hissing I won't say Gentlemen that either one party or to'ther in the Contest made the noise of hissing but there is nothing of it fixt upon any of us Our Case is this my Lord with favour when we have stated our Case and proved it we are very innocent and not guilty of the Riot In some measure it hath been stated on the other side They say in the Information that the Lord Mayor called a Common-Hall we don't dispute that matter we agree it that the Lord Mayor of London is the Kings Lieutenant but to make such and inference That because the Lord Mayor is the King's Lieutenant in the City of London that he must execute all the Offices in the City is of no credit in the world so that they are mistaken in that Men are bounded in their Offices The Lord Mayor does not execute all the Offices in the City though he be Lord Mayor The question between us is this Whether the Sheriffs in this case did more than their Office as Sheriffs of the City of London There is a superiority due to the Lord Mayor Another thing we agree with them we agree it is in the Lord Mayor only to call these Com-mon-Halls and as Mr. Serjeant Jefferies that hath been in a good Office in the City he agrees it himself and it is apparent there are some fixt days for Election but yet though there be fixt days for Election yet there must be that Formality of a Summons from the Lord Mayor to the City to meet in order to the Election of Sheriffs for the City of London and other Officers that we do agree that my Lord Mayor hath the Power of calling Common-Halls and he is the proper Officer We agree also Gentlemen that when the business is done for there is nothing in vain in nature and there is nothing in Government that should be in vain when the business is done my Lord Mayor is to bid the Company Fare them well which you may call discharging the Common-Hall we agree that to be commonly and usually done by my Lord Mayor But herein we differ which we are to try the right of the Office of Sheriffs being the question it is a question of right and I don't see the Government is concerned one way or other L. C. J. Upon my word I do see it and surely you must be blind or else you would see it too when a company is got together no God save the King No King no Lord Mayor Mr. Williams My Lord I thought I had opened it plainly I speak before a great many people I desire my Lord this may be very well heard I thought I had said very well from all these Noises and Cries we are all innocent we justifie nothing of it only we would have been glad if they had apprehended any man that made that noise it had been a very happy thing if one of them or all of them had been Defendants to be tryed My Clients are Defendants they are innocent and unconcern'd it is a Crime committed by some where these Gentlemen were by but they are innocent we hear hissing at t'other end of the Room it was an ill thing and of a Treasonable complexion but for these Gentlemen they are unconcern'd The Question between the Lord Mayor and the Sheriffs of the City is a Question of Right between the Mayor and Sheriffs Whether it be the Prerogative of the Mayor or the Right of the Sheriffs and I say under correction again this Question Whether the Lord Mayor of London may adjourn the Common-Hall to a certain day is a question of Right Whether he can do it or the Sheriffs And I don't see what consequence it can have upon the Government The Lord Mayor is the King's Deputy the Sheriffs they are the King's Officers and the Question is Whether it be in the Lord Mayor or the Sheriffs of London to adjourn it They are very good Subjects I am sure this very Year they are so therefore I wonder at these Gentlemen of the King's Counsel that will meddle with the Government and say the Government is concerned in this I appeal to any man if there be any more concern in this I say this here was a Common-Hall call'd grounded upon Custome in the City of London and here is a single Question Whether these Sheriffs did any more than their duty whether they were guilty of a Riot in continuing this Poll. Gentlemen this is the method we shall take First of all it is not proved that ever the Lord Mayor before this time did ever attempt to adjourn a Common-Hall to any certain time all the Witnesses that were call'd that pretend to be knowing in the Customes of London the Common Serjeant himself he does not pretend that it was adjourn'd to a day Mr. Serj. Jefferies You mistake Sir Robert Clayton did from Saturday to Munday L. C. J. What need if there had been no President if so be an Asembly of People are met about business and they can't make an end of it in a reasonable time must they be kept all Night till they have What Argument will you make of it If a man may call and dissolve do you think if there be occasion but by the Law it self that he may adjourn to a convenient hour Mr. Williams That will be a question between us My Lord what I say certainly of Fact carries something in it L. C. J. Not at all Mr. Williams Then my Lord I have done L. C. J. Give us leave to understand something Sir Sir Fr. Winnington My Lord by your Lordships favour L. C. J. I spake to Mr. Williams and he takes it so hainously at my hand that Facts signifie nothing I do again say it The fact signifies nothing For I tell you again as Law it is not denied the Lord Mayor may call he may dissolve then I say by Law without Fact by Custom he that can both call and dissolve may adjourn to a convenient time Do not Judges of Assize in all the Counties of England do it when a Cause is appointed to be tryed in such a County such a day and it may be it is tryed 3 daies after and yet I pray find me the Statute or Commission or find me one thing or another besides the very Law it self that doth give them leave to adjourn from time to time Mr. Williams My Lord there is a mighty difference but I am only upon fact these Gentlemen will agree it was never practiced before Sir Robert Clayton's time what the
consequence in Law will be that is in your Lordships Breast I am now speaking upon the Evidence that this hath not been practiced What the Law is for that we are to have your Judgment which I humbly crave I will be judged by Gentlemen that are my Seniors and better read in this matter but my Lord a man may have a power of calling and dissolving and not of adjourning it may be so But my Lord admitting it to be so for this time yet my Lord whether we are guilty of a Riot take the Circumstances of our Case Whether the Right of adjourning be in the Sheriffs yea or nay it is a question of Right and I had rather apply my self to your Lordship than to the Jury If there were a Question of Right between the Lord Mayor and the Sheriffs it may be admitted by our Councel that it was his Right to adjourn the Court and probably the Sheriffs might be in the wrong and the Lord Mayor in the right The Lord Mayor adjourns the Court and they continue it they go on with the Poll and go on with the execution of their Office as they apprehended if they were still for their Right I hope your Lordship will not make this a Riot My Lord for the Circumstances that followed the noise that was made which I don't love to mention if I say they were guilty of this I am silent but if they did no more as I hear no more proved upon them then continuing the Poll then I say it will be very hard to make them guilty of the Riot And another thing is this my Lord we all know if there were a thousand Electors any man knows that when there is a question upon an Election it is impossible such a thing shall be carried on but there will be reviling ill language and the like and to turn all these things to a Riot a thing so common from the beginning of Elections to this time if there be division and polling there will be something you may turn to a Riot But I say this they have not instanced in any one Defendant that he was guilty of any one particular act that amounted to a Riot in it self they have not instanced in one They say of Alderman Cornish That he was of the same opinion with the Sheriffs that they did insist upon the Rights of the City he took it to be the Right of the Sheriffs And saies one of them I will stand upon it Bethell that had been Sheriff Now we will call our Witnesses we will prove what hath been the constant practice in the City we will prove the methods of adjournment and my Lord this is to be said which your Lordship will observe That the Sheriffs adjourned the Court to the very same time with my Lord Mayor so that it was no more than to bring the matter to an issue in this case Sir Fr. Winnington Spare me a word in this case my Lord. There is no Evidence produced against Trenchard nor against Jekyl the Younger nor against Bifield nor 〈…〉 of these there is no question but they are as if they were out of the Information I must beg leave for a word or two as to those Defendants that they have offered some Evidence against The question is now before your Lordship Whether they are guilty of a Riot or no My Lord for ought I see it will stand upon a nicety of Judgment yet if there be not matter enough Gentlemen to make the Defendants guilty of a Riot then it will clear the Defendants My Lord as to those words that really were words that ought to be inquired into who they were that spoke them in relation to his Majesty I think it was a very ill thing of those men that saw them that they would not neglect all manner of business to seize them I think it was a duty to fix upon them but my Lord there is no Evidence to put it upon any of the Defendants My Lord that being pared off now the question is That the meeting together was lawful that is agreed then when they came together my Lord I do think that if we do rely upon the Evidence it will be a mighty hard thing to make this a Riot setting aside those villainous words that were spoken which cannot relate to the Defendants Suppose my Lord that among the Electors the whole Common-Hall of the City there doth a dispute arise before the Election is over concerning the adjournment of the Sheriffs or the Lord Mayor some men are of one opinion some are of another and their Evidence Mr. Peter King and another Attorneys I asked the question several times Did the Lord Mayor of London ever interpose or concern himself in adjourning the Hall till the Election was quite finished and they said No Then my Lord I must say it as to these particular Defendants in such a concourse of People as was met there it is as slender a proof of a Riot as ever was and intimates that the Citizens of London they that happen not to be the greater number they that lose the Election may be found guilty of a Riot in chusing other Officers as well as in the business of Sheriffs which being so tender a point I think it will be a very severe exposition my Lord to make this a Riot But now for the Matter we will call to your Lordship several Witnesses men that have been Magistrates in the City that it was alwaies looked upon that my Lord Mayor as he is the Principal Magistrate he gives notice for Common-Halls and when the several Electors are met and the business is over he directs them to go home and dissolves them but my Lord Mayor meddles not in every little administration of the Election of Officers but leaves them to inferiour Officers the Sheriffs and others that is their duty my Lord with submission they Poll them and send them home during the Election therefore by Law they do this for my Lord the Custome of a City and the Custome of a Place is the Law of the place and if the Custome of the place hath been that the Sheriffs have been the persons that have managed it it is their Right but the Common Serjeant he saies he hath the sole management of it Then if it be as Mr. Common Serjeant saies if that must go upon my word Gentlemen your Priviledges are reduced to a little compass L. C. J. They did conferr one with another who they took to have the most Voices and so reported it not that he did claim any thing in his own right but as an Officer of the City Now it is plain and I think there is no inconveniency falls upon it if an Officer acquaints my Lord Mayor according to the best of our Judgment we think such a man hath the most Voices that does not give him a right for him to make an Officer not at all Sir Fr. Winnington I say what he
we did discourse of the Adjournment in this Court I believe it was discours'd below but as I said I was engaged to go to the Old Bayley and I would leave that matter to the Sheriffs whose proper business I understood it to be Mr. Att. Gen. I ask you Sir Robert one of the plainest questions that ever was asked I ask you whether you gave the Sheriffs or the Common Serjeant express order to adjourn Sir R. Clayton I believe I did not Mr. Att. Gen. Did the Sheriffs tell you they had a right then Sir R. Clayton There was no dispute who had the right Mr. S. Jefferies Sir Robert Clayton if you please I would ask you a question or two Do you remember that the Court was adjourn'd while you were there or not Do you understand the Question Sir Robert Do you remember the Common Hall was adjourned while you were there Sir R. Clayton Yes Sir If you give me leave to explain my self I think the Common Hall was adjourn'd it was declared but there was such a noise in the Hall that the people could not hear it Mr. S. Jefferies But there was a sort of Declaration made by your self you did make an adjournment but the noise was such that the people did not hear and if you remember there was a person affronted one of the Sheriffs and I committed him to custody upon it Sir R. Clayton We desired to adjourn for an hour or two that we might go and refresh our selves Mr. S. Jefferies Then you remember there was an adjournment I ask you whether it was appointed to be made by you or the Sheriffs Sir R. Clayton Truly I believe it was appointed by me Mr. S. Jefferies Sir Robert by asking you a question or two Sir Robert I know I shall bring some things to your remembrance Sir R. Clayton My Lord I don't know I have given any great occasion of Laughter to my Brethren these Adjournments have been very common with us and I might agree to it or order it or direct it but one of them I believe I did or two of them Mr. S. Jefferies Sir Robert I would only have a question or two asked and I know by asking a question or two I shall bring things to your memory which I am sure you cannot easily forget Were there directions given for Proclamation to be made for all Parties to depart in the King's name Sir R. Clayton I believe there might Mr. S. Jefferies The next question is whether the Sheriffs ordered that Proclamation to be made for all Parties to depart Sir R. Clayton If it were done while I was present I make no doubt in the case but I did direct it I make no question of that Mr. S. Jefferies Very well now Sir Robert Clayton we are got to an adjournment to a time by your direction and proclamation by your direction Now I will ask another question upon your oath was not you in the Common Hall and gave order for an adjournment till Monday following for I remember that day to be Saturday Sir R. Clayton Truly I do not remember that Mr. S. Jefferies You do not Sir Robert you know very well that the Sheriffs of London when the Lord Mayor and Aldermen came back to the Hustings the Sheriffs sit remote one on the right hand and the other on the left furthest from the Lord Mayor so that all the Aldermen sit nearer to the Lord Mayor than the Sheriffs do did you mind that the Sheriffs came to you to speak to you any thing of an Adjournment Sir R. Clayton I never saw it Mr. Jones I would ask you a Question or two you know this Gentleman don't you pointing to the Common Serjeant Sir R. Clayton Yes Mr. Jones Did he attend the Court at that time Sir R. Clayton Yes Mr. Jones Sir Robert I ask you a fair question did you lay any command on him to adjourn the Hall at that time from Saturday till Monday Sir R. Clayton Pray my Lord give me leave to answer Mr. Jones in my own way Mr. Jones My Lord I am in your judgment it is a fair question within his own Recognizance lately done he ought to answer positively Yes or No. Sir R. Clayton Am not I upon my Oath can you tell me what I can say Mr. Jones Ay or no any honest man wou'd do it Sir F. Winnington All Witnesses answer their own way don't they Mr. Jones Let him answer then his own way Mr. Att. General My Lord you know there is a rule in Chancery if it be a matter within seven years if it be not answered positively it is no answer if one asks a Witness a question that lies within a little while if he will not answer either affirmatively or negatively he is no Witness L. C. J. I can't tell Mr. Attorney Mr. Jones Will you answer or no Sir Robert Clayton whether you commanded the Common Serjeant to go and adjourn the Hall or no Sir R. Clayton I don't remember that I did Mr. Jones Then I only ask you this further question whether Mr. Common Serjeant did not tell you that it was not his proper business to do it and that unless you would lay express Commands upon him and put the very words in his mouth he did desire to be excused and did he not stand there pointing to the Bar. Sir R. Clayton I have heard Sir what Mr. Common Serjeant did say and I cannot charge my memory with it but I have that charity for Mr. Common Serjeant to believe there might be discourse to that purpose Sir F. Winnington Mr. Love in all your experience what do you remember Mr. Williams How long have you known Guild-hall and Elections Mr. Love I suppose my Lord these Gentlemen don't expect I should say any thing that was done that day but my Lord all that I suppose you expect from me is what I did observe to be the practice of the City to the best of my remembrance I shall give you an account My Lord about 22 years ago I did observe the practice to be this when I was call'd into this Office of Sheriff I took it as a thing for granted that it was the Sheriffs Office to manage the Common Hall that I did as my Lord Mayor's was to have a Sword born before him I have received it by tradition from all before me and my own experience My Lord I remember when we came to chuse Sheriffs upon Midsomer day after the Lord Mayor and Aldermen had been there my Lord Mayor said to me and my Brother Sheriff Gentlemen look to your Office we accordingly went to it and chose two Sheriffs one Gentleman that had been drank to by my Lord Mayor I think it was Alderman 〈◊〉 but notwithstanding that drinking to him we took no notice of that as a ceremony he was put in nomination among others and being a senior sitting Alderman we returned him otherwise my Lord I assure you I would not have
returned him notwithstanding the drinking After once that the Lord Mayor and Aldermen withdrew to go to the Council Chamber they said to us Now Gentlemen look to your Office Mr. Thomson What was your Office Mr. Love To chuse Sheriffs Mr. Thomson Did my Lord Mayor meddle with the election or left it to the Sheriffs Mr. Love Left it to the Sheriffs Mr. Williams What was your opinion Sir was it in the Lord Mayor to take the Poll or the Sheriffs Mr. Love Truly Sir I am not a competent Judge of whose right it was but if my Lord Mayor had gone about to meddle in it I should have prayed my Lord Mayor to meddle in his own Office and let me alone with mine Mr. Attorney Yes Mr. Love you were then the Tribunes of the People Sir F. Winnington Here are some say the Common Serjeant and the Common Cryer have a power nay the whole power of ordering the Hall during the Election What is the Office of the Common Serjeant there Mr. Love Truly Sir I look upon the Common Serjeant and the Common Cryer as Persons left to assist us because they would not put us to the trouble of crying O Yes our selves and if any Common Serjeant or Common Cryer had durst to put a question without my direction I would have known whether he could or no. Sir F. Winnington Mr. Love was it ever dicours'd to you when you were Sheriff or before or since that ever my Lord Mayor did interpose before the Election was over Mr. Love Since I was discharged of being a Magistrate I never was at a Common Hall since I have spent my Money for the Cities service but never got a peny by them I never heard that ever the Lord Mayor till these late times interposed but that the Sheriffs managed the whole business of chusing Sheriffs Mr. Att. Gen. Mr. Love I desire to have a word with you you speak of the time of your reign I would ask you a plain question was it before the King came in Mr. Love It was that year the King came in Mr. Att. Gen. Was you chosen before Mr. Love Yes I was Mr. Att. Gen. Do you remember an Act of Parliament in 48 then in force of shutting out my Lord Mayor Mr. S. Jefferies I would ask him a question or two Hark you Mr. Love let me ask you a question or two Mr. Love Sir George I would give Mr. Attorney an answer L. C. J. What would you make of it if you ask him of an Act of Parliament it is something Mr. Att. Gen. You speak of a time when my Lord Mayor had no more to do with it than I had There was an Ordinance of Parliament did you never see that Mr. Love To the best of my remembrance I never saw it in my life Mr. Att. Gen. Nor heard of such a thing Mr. S. Jefferies Hark you Mr. Love I perceive you would have disputed with my Lord Mayor who was the Lord Mayor that you talk of Mr. Love Sir Thomas Allen. Mr. S. Jefferies Now I would desire to know whether you remember the City before the King came in Mr. Love For a little while Mr. S. Jefferies Do you remember any thing of that custom of the Lord Mayor's drinking to Sheriffs was not that used before the King came in Mr. Love A long time Mr. S. Jefferies It is well enough a long time Mr. Williams My Lord we have seven or eight more to the same purpose but we are satisfied with these Gentlemen we will prove if there was any thing like a Riot we will prove my Lord Mayor and those that were with him were the Authors of it L. C. J. When multitudes of people are gather'd together upon a lawful occasion supposing that they had a right to be there I do say that in that case it would be much a mitigation of the fine so for this same riot but on the other side you must know that these men that do it it doth not excuse them for ignorantia juris is not an excuse It is true if they had had a lawful occasion to continue to do it but in truth they had not that will excuse them à tanto but non à toto Mr. Holt. My Lord I beg to put in this case there is a great deal of difference where a person does claim a right to himself and does an extravagant action Now my Lord these persons did claim a right to themselves to continue the Common Hall and that it was not in my Lord Mayor's power to adjourn it without them now my Lord they claimed this right if they used no violence that is excusable If I should claim a right to another man's estate though I have no Title and say I have a right and give it out in speeches no action lies against me but if I do an extravagant action and say another man hath a title there lies an action against me L.C. J. Now go to your fact Sir F. Winnington My Lord put a point to us and we need not call more Witnesses L. C. J. I don't speak to hinder you from calling your Witnesses Sir F. Winnington I put this case we undertake to prove that it was always looked upon that it was the right of the Sheriffs suppose my Lord upon the dispute it should be found that the opinion of the Jury should be otherwise will this turn to an illegal act L. C. J. Call your Witnesses Mr. Wallop I beseech your Lordship I may put one case in this point in a point of right if they have a probable cause to insist upon it Suppose I send 40 men to a wood and take a Carr or a Team if they be a competent number to cut down wood if we are mistaken in the title that is no Riot Lambert puts the case L.C.J. But what if I had sent a great many men to cut down the whole Wood Mr. Williams We will call some Witnesses that will take us off from the Riot thus if so be we can excuse our selves of the disorder and put it upon my Lord Mayor then we are innocent L. C. J. Very well if you do that Mr. 〈◊〉 Mr. Sibley are you acquainted with the manner of the Election of Sheriffs how long have you known it Mr. Sibley I have been of the Livery ever since 39 in all my time I speak Gentlemen to the best of my remembrance it hath been the custom in all my time except here of late that the Sheriffs of London have had the management of the Election Mr. 〈◊〉 Did my Lord Mayor ever interpose till the Election was over Mr. Sibley I never knew my Lord Mayor interpose till lately Sir F. Winnington Did you ever hear my Lord Mayor pretend to it till of late Mr. Sibley No my Lord. Sir F. Winnington Did the Mayor use to be present at any Election during the Election Mr Sibley I have been most commonly there Sir F. Winnington But the
Mayor would the Mayor be there Mr. Sibley The Mayor and Aldermen went off the Bench. Sir F. Winnington Who managed the Elections Mr Sibley The Sheriffs Sir F. Winnington Were the Common Serjeant and the Common Cryer there Mr. Sibley The Common Serjeant and the Common Cryer are always there L. C. J. I pray thus you have known the City it seems a great while I would ask you this pray who did call the Assembly that was to chuse the Sheriffs did the Sheriffs or the Lord Mayor Mr. Sibley We commonly received the Tickets by the Officers of the Companies L. C. J. Did the Officers of the Companies summon the Assembly Hark you pray Sir recollect your self Do you take it that the Officers the Beadles it may be of the several Companies did they summon the Livery-men and so a Common Hall was call'd together was it so in your time Mr. Sibley It hath been commonly so we have received Tickets from the Beadle of the Company L. C. J. And my Lord Mayor had nothing to do with it then Mr. Sibley What order the Masters and Wardens had from my Lord Mayor I never inquired into that L. C. J. When the Hall was dissolved who ordered Proclamation to be made the Sheriffs or the Lord Mayor Mr. Sibley My Lord Mayor hath not used to be there Mr. Thomson When they had done they went away He won't trouble your Lordship L. C. J. Pray had my Lord any hand in summoning did he direct the summoning of them Mr. Sibley It is more than I know L. C. J. You bring a Witness that knows nothing of the matter Mr. S. Jefferies Mr. Deputy Sibley Give me leave to ask Mr. Sibley a question or two I shall set him to rights presently Mr. Sibley if I be not mistaken you are one of the Company of Tallow-Chandlers and you have been Master of the Company and you have been Warden of the Company You very well know what directions are given to the Beadle are generally by the Master or Wardens pray upon your Oath when you were Master or Warden was there ever any Precept sent to you to summon a Common Hall Mr. Sibley Indeed I don't remember that Sir Mr. Thomson If your Lordship please we have done with our evidence I would beg your Lordships opinion in it Sir F. Winnington We do admit my Lord Mayor summons the Court. L. C. J. But you bring a Witness that knows nothing in the world of it but yet you would have it taken for Gospel that the Sheriffs had all the management before that time 40 years together till now very lately But when he comes to be asked how is this Assembly or Common Hall call'd together alas he knows no more of that than one in Utopia Mr. Thomson My Lord we have several other Witnesses but we will call no more Mr. Att. Gen. If you have no more we will call two or three more Mr. Thomson We have some to prove that my Lord Grey came to speak with Sir William Gulston and went away again and we desire to call Sir Thomas Armstrong Sir F. Winnington My Lord if your Lordship pleases thus there will be it seems some particular defences made Your Lordship hath heard their evidence and what we have said we desire to call two or three Witnesses to another head Your Lordship hath heard there was some rudeness by some of the people but who they were it doth not appear We will call two or three Witnesses of the behaviour those men and Company that came with my Lord Mayor that whatsoever disturbance was made they were the chief men that made the disturbance and my Lord Mayor could not help it nor we neither L. C. J. Sir Francis I believe those men that would not have God save the King my Lord Mayor could not hinder them but will you undertake to prove that those that came with my Lord Mayor that they were the men Sir F. Winnington They were with them my Lord. Mr. S. Jefferies They were with them that cryed God bless the Protestant Sheriffs Mr. Sibley My Lord I desire to explain my self to what I said it is several years agoe since I was Master of the Company I do not remember but I believe the Summons was directed from my Lord Mayor Mr. Freak Mr. Winstanley what account can you give to my Lord and the Jury Mr. Winstanley I have lived near the Hall and I often came in but I was not a Livery man upon that Poll that was between Mr. Kiffen and Sir Robert Clayton the Sheriffs managed it Mr. Freak Who managed it Mr. Winstanley The Sheriffs Mr. Freak Who declared Mr. Winstanley The Sheriffs Mr. Freak Did the Mayor come down to declare the Election Mr. Winstanley The Mayor came down after the Poll but the Sheriffs took the Poll. Mr. Freak Who was then Mayor Mr. Winstanley Sir James Edwards was Sheriff and Sir John Smith Mr. Freak Who was Mayor Mr. S. Jefferies It was Sir Samuel Starling Mr. Freak Who put the Question upon the Hustings Mr. Winstanley I can't tell Mr. Freak What did you hear the Sheriffs say or see them do Mr. Winstanley The Sheriffs presently granted a Poll and parted one to one door and the other to t'other Mr. Freak And who took the Poll Mr. Winstanley The Sheriffs took it Mr. Freak Who declared the Election Mr. Winstanley The Sheriffs Mr. Freak Who were Sheriffs then Mr. Winstanley Sir James Edwards and Sir John Smith Mr. S. Jefferies Mr. Winstanley I would ask you this question do you take it upon your oath that the Sheriffs declared the Election Mr. Winstanley I declare upon my oath that the Sheriffs took the Poll. Mr. S. Jefferies Mr. Winstanley you may guess pretty well what I mean by this First of all I ask you did the Sheriffs put the question Mr. Winstanley The Sheriffs took the Poll Sir Mr. S. Jefferies Nay answer my question did the Sheriffs put the question or did any body else Mr. Winstanley Truly Sir I have forgot you were there Mr. S. Jefferies I know I was Sir I know very well I ask you upon your oath who was it that declared the Election afterwards upon your oath Mr. Winstanley Truly Sir George I don't remember Mr. S. Jefferies Mr. Winstanley one went out at one door you say and t'other went out at t'other you say now I say who took notice and told the names of those that went out at one door and t'other Mr. Winstanley The two Sheriffs Mr. S. Jefferies Who else Mr. Winstanley I can't tell Mr. Serj. Jefferies Do you remember me there at the great Door when they poll'd and went out do you remember who told them Mr. Winstanley No truly Mr. S. Jefferies Pray do you remember when one Mr. Broom a Wax-chandler was chosen Ale-conner Mr. Winstanley I was in the Hall but I do not charge my Memory with it Mr. Sol. Gen. Hark you Mr. Winstanley who is it grants the Poll when it
by any of these Defendants it may be there was some Discourse concerning the power of my Lord Mayor I only mind your Lordship of Sir Robert Atkins Case a late Case in the Kings-bench there can be no Assembly to choose an Alderman as in that Case unless the Mayor was there the Assembly was held and yet Gentlemen because it was not done in a tumultuous manner but with a good intent it was held that Sir Robert Atkins was not guilty of a Riot There must be an evil intention to do some mischief Mr. Turner brought his Action against Sir Samuel Starling for dissolving the Hall And my Lord that being in the Case of the Election of a Bridgemaster surely there is a Parallel Reason for the Sheriffs L. C. J. That Case is against them Mr. No my Lord. L. C. J. There the Lord Mayor had a power by Law to dissolve the Assembly thô in truth he should not have done it Mr. Sol. Gen. The Action was brought for denying a Poll my Lord. Mr. Thoms It is laid in that Declaration that it is the Custom of the City that my Lord Mayor cannot dissolve Mr. Att. Gen. May it please your Lordship and you Gentlemen of the Jury you have now heard all the Evidence L. C. J. Gentlemen you shall not over-rule me so because I am willing to hear every body therefore you impose upon me You shall have Law by the Grace of God as far as I am able Mr. Att. Gen. We have now done with the Evidence on both sides and you do now see the right of the Lord Mayor notwithstanding all the vulgar and popular Discourses is asserted it appears now upon full Evidence they themselves do not contradict it that my Lord Mayor is the Supreme Magistrate of this City both for calling all your Assemblies and for dissolving them they won't pretend against this but indeed they make a Question whether my Lord Mayor can adjourn or no. Necessity of Affairs requires it some times if there be such a Tumult such an interruption that they cannot proceed orderly or if the matter be so long that they can't determine it in one Day there is a necessity that there must be an adjournment to another time and they give you no instances Gentlemen that ever the Sheriffs in any Age did attempt it never any Sheriff made an adjournment of his own accord Mr. Love he gives no instance of an adjournment he only tells you of his Supremacy at that time when my Lord Mayor had nothing to do with it and Gentlemen at that time you must remember when he was Elected the Law was otherwise when Mr. Love was elected then the Sheriffs were the Tribunes of the People and they had shut my Lord Mayor quite out of their Common-hall and declared that he had no power to dissolve or adjourn them The next instance is that of Sir Robert Claytons and how do they make that out Sir Robert Clayton swears only upon his Memory and what is that he remembers just nothing He does think the common Serjeant does speak Truth in some things but he can't remember other things But we prove not only an Adjournment from Saturday to Monday but other adjournments by special direction from Sr Robert Clayton So that whatever Mr. Love did fancy of the Authority of Sheriffs to tell my Lord Mayor he had nothing to do therewith yet that my Lord Mayor certainly is the chief Magistrate we have proved all along to this present time till within these Two or Three years and when ever there was an adjournment we have proved it to you that it was by my Lord Mayor So that it is nothing like the Case put by the Gentlemen on the other side there was never any shadow of pretence for right Whoever knows London must know the Sheriffs of London are not Officers of this Corporation as Sheriffs but they are the Kings Officers of the County granted to be chosen by the Citizens They are in their particular Cases Judges for choosing Parliament men but in no Corporation Act whatsoever So that Gentlemen you see there is no pretence for that But admit there were what is it like the Case when a Man saies claim to a Wood and he sends Three or Four Persons or half a Dozen Persons to cut it down yet Mr. Wallop notwithstanding your Authority thô that be not a Riot it is a Rout where you will send such a Number to raise terrour in the Kings People and they will continue together after they are commanded to depart by a Magistrate But it is a different thing where men will concern themselves in a matter of publick Government as if any Man should pretend he hath the Kings Commission to take your Lordship off the Bench. So that here is quite a different thing this relates immediately to the Government here 's the publick Peace of the City is in danger and if my Lord Mayor had been a Person of great Spirit and had presently raised others to have supprest this Riot then the City had been in a fine Condition by these People that would have no God bless the King but God bless the Sheriffs There is no pretence of right can justifie such a thing Now my Lord for a Riot this must be acknowledged to be for many to meet together to do an unlawful thing is a Riot Mr. Wallop And do it Mr. Att. Gen. And do it I put in that too Sir The meeting here is lawful and it is as certain that my Lord Mayor hath power to Adjourn that is a consequence of Law if the Adjournment be necessary and he is the only Judge of Adjournment and when he hath Adjourn'd I do say the continuing Persons together to do that which if they had summon'd them to do had been unlawful is as much an unlawful thing and a Riot as that I would fain know if the Sheriffs had summon'd all the Citizens together to meet to choose Sheriffs or any others would any man Question but this is an unlawful Act a subversion of the ancient Government of the City the Usurping an Authority in the City contrary to the Kings Grant and the Charter And after they are Adjourn'd if they will make Proclamation and order the People to stay and go on with the Poll is not that the same thing in point of Law Surely no man almost of common sense but will say it is the same thing In the case that Mr. Wallop puts if there be any disorders committed precedent to the Magistrates disolving the Society that will not amount to a Riot but if the Magistrate comes and makes Proclamation for them to depart and they stay after it makes a Riot if they continue still together it is rout and an unlawful assembly But they say there is no Proof that these Gentlemen that are in the Information are guilty of the Riot they are all parties to the Riot the very being there and giving countenance
to it is an unlawful thing Pray Gentlemen If Ten men should go to rob a House and one stands off at a distance is not the Tenth man guilty of the burglary If there be a many persons together and Three only do an unlawful Act and the others give protection for number is always a protection are not all these Gentlemen guilty And therefore Gentlemen it is hoped you will settle the City by destroying this pretence which hath been fluttering in the Air but hath no ground for it L. C. J. Gentlemen of the Jury this is an Information against several for a Riot and it sets forth that there was a Common-Hall that was call'd by the Lord Mayor for choosing several Officers and that afterwards the Lord Mayor did dissolve that Assembly and yet notwithstanding the Defendants so many as by and by I shall name to you that they have given evidence against they kept together and committed a Riot it is said so particularly in the Information For the matter in fact that hath been altercated between them the Question is whether the Lord Mayor for the time being hath power in himself to call an Assembly and to dissolve it and truly as to this point even the Council for the Defendants did one while grant it but another while did bring Witness that did know nothing of the matter I must needs say But for ought I see even until this very time the Lord Mayor did call the Assembly and he did Dissolve it and that they did seem to grant even at the beginning of the cause But then they make a distinction but he could not Adjourn it to a certain time That was a very weak thing to say that if the Lord Mayor may call and dissolve the Hall that he cannot Adjourn it to a convenient hour Suppose now the business to be done was not dispatched sooner than this time a Night so that upon the matter they must be either Adjourn'd till to Morrow or kept in the Hall all Night does any man think that that Magistrate that hath power to call and dissolve hath not power to Adjourn There is no Man doubts of it in Fact or Law and that it was so Sir Robert Clayton did that very thing if there had been no precedent it had been all one But they make a great deal of business of it how that the Sheriffs were the men and that the Lord Mayor was no body and that shews it was somewhat of the Common-wealths seed that was like to grow up among the good Corn. Pray Gentlemen that is a very undecent thing you put an indignity upon the King for you ought not to do it if you knew your Duty pray Gentlemen forbear it it does not become a Court of Justice I will tell you when things were topsie-turvie I can't tell what was done and I would be loth to have it raked up now They might as well as I perceive they have at another time said have said that the power of Dissolving and Adjourning might have been in the Livery-men all People every body and so then if they had been together by the Ears I don't know who must have parted them that is the truth of it But I think their own Council are very well satisfied both in Fact and Law that the Lord Mayor for the time being hath this power of Calling and Dissolving and Adjourning the Assembly Then there is another thing that is to be considered and that is this the Defendants they say we did mistake the Law it was only a mistake of the Law and nothing else and we did do all to a good intent and therefore it must not be a Riot To give you some satisfaction in that First I must tell you that a man must not excuse himself of a crime by saying he was Ignorant of the Law for if so be that turn to an excuse it is impossible to convict any man if so be he must be excused because he did not know the Law then no man will be found guilty But if it appear that the Defendants did verily believe that the Law was for them that may be considered in another place if so be that they were really Ignorant the fine it may be may be the less but it won't excuse them from all But truly in the next place you must consider whether or no these Gentlemen were Ignorant or whether or no they did not in a tumultuary way make a Riot to set up a Magistracy by the power of the People For I must tell you I have not heard by the Defendants and I will appeal to your memory I have not heard before this time that ever the Sheriffs did quarrel with the Mayor or continue a Common-Hall after the Mayor had Adjourn'd it As for these Gentlemen they could not be Ignorant of it because the daily practice before their Eyes was for the Mayor to do it But this was a new notion got into their heads tho it was otherwise before it must be so now and one said they would have no Tory Mayor to be Mayor thus the King should have something to do to support the Mayor by his power for ought I know Now Gentlemen for the parties that are accused to be in it there is T. Pilkington Samuel Shute Henry Cornish Lord Gray Sir Thomas Player Slingsby Bethel Francis Jenks John Deagle Richard Freeman Richard Goodenough Robert Key John Wickham Samuel Swinnock and John Jekyl the Elder some Witnesses are to some and others to others but some of them have seven or eight Witnesses There is Pilkington and Shute and Cornish these had a great many Witnesses against them others have two First for the Sheriffs and Mr. Cornish that had been Sheriff but two years before they kept them together after my Lord Mayor was gone and to see what People they were No not God bless the King no no but the Protestant Sheriffs so that in truth the King must be put out of his Throne to put these two Sheriffs in it It is not proved that either of these did say so nor the others neither but they were those that clung to them and they would help them and they would set them to rights and I know not what and there is no other way to know in this case what they were but by these they kept company with and it may be I would be loth to say ill it may be it was in order to Dethrone the King as far as they could for my Lord Mayor when truly he had Adjourn'd the Hall and was going home he had like to be trod under foot himself his Hat was down and that was the great respect they gave to his Majesties Lieutenant in the City It is true it cannot be said who it was but those were the People that would have no God save the King and those the Mayor had nothing to do with The Sheriffs they would go on to Poll and cast up