Townclerk. Yes, Sir, that other of Jenks was only by telling. Mr. Williams. Were you concerned in taking that poll? Townclerk. I did assist at it one day. Mr. Williams. Who ordered you to take the poll that day? Townclerk. Truly, I did concern myself 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 myself in it; but some gentlemen did pray me to go up to the poll; and I did go up. Mr. Williams. Sir, upon your oath, did the sheriffs direct you to take it? Townclerk. I really think they did not. Mr. Williams. Did my lord mayor direct you? Towncterk. No, Sir. Mr. Williams. Did the sheriffs manage it? Common Serj. I did it by sir Robert Clayton's order, who was then lord mayor. Mr. Williams. 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. Townclerk 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 not at all concern ourselves with what my lord mayor did Att. Gen. So do we. Serj. Maynard. Whether this action brought by us, was malicious? Mr. Ward. 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. Pollexfen, and Mr. Wallop, as I have heard. 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. 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. Williams. No, my lord, we have done, we leave it upon this evidence to your lordship and the jury. 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 straight and right; God forbid, that any heat, or transport of the times, should bring us into that condition, but that every subject of the king's, 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, L. C. J. Mr. Williams, you talk of that you And I am to tell you, gentlemen, that much do not understand; for my lord mayor was has been said in this case (which I perceive is not there at that time of Jenks's poll: I was by the concourse of people a cause of great excommon serjeant myself, and I know the she-pectation, as my brother likewise said,) whicha riffs have nothing to do with it. Mr. Williams. It should seem by Mr. Townclerk to be doubtful, sometimes one, and sometimes another did direct the taking of the poil. 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. Williams. 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 dis continued 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. Williams. 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. Williams. We must submit to your lordship's directions, 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 Though many things have been said in the case, that are quite besides the natural question, yet they having been made dependencies 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 counsel both for the plaintiff and the defendant; and I shall not think myself under any sort of prejudice in the world, if they take the liberty, as they may freely do, to interrupt me, and remind 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 rases servare jus illæsum, 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 though I myself 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 -counsel 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 myself 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 the 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 fining 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 Midsummerday 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 ques tion 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 sheriff's 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 notori ously known when the polls began, persons did not think the shrievalty such an office, that it was so earnestly to be coveted and desired. Polls, indeed, used to be heretofore for the bridgemasters places, that are places of profit and advantage; and so for aleconners, 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 court of aldermen were gone off the hust ings, and retired to this place, the commonserjeant 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 commonserjeant, consulting with the sheriffs and those about him, declared their opinion, that the elec-. tion 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 crier 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.' Nobody 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 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 another. And this never came to be a question, till the business of the poll between sir Simon Lewis and Jenks came about, which you have heard of. Mr. Papillon himself, when he was chosen sheriff before, and fined for it, was chosen in this manper, and no other. Mr. Cornish, he comes and gives evidence that the common-serjeant was reckoned to be the man that managed the choice by command and direction of the sheriffs. And some of those gentlemen, that have been produced on the defendant's side, they say, they have looked upon it as the sheriff's business. But alas-aday, it belongs to neither of them, they are but officers to the lord mayor. The commonserjeant's business is but to put the question into the mouth of the common crier. In so much, that when I myself was common-serjeant, as I used to pass by the shops in London, they used to cry, there goes, So many of you as would have.' It was as plain a road of things, that every body knew it before these things untowardly have come to be imbrangled by our factions and divisions, and the beat of some busy fellows. Here are a great many ancient citizens, that I see, that know, and so you do all, gentlemen, that this is true. So that all the discourse of this matter is but flourish and garniture, and doth not affect this case at all, one way or other. Another thing, gentlemen, hath been mightily talked of, and urged, and insisted upon both by plaintiff and defendant: and that is, the defendant's right, or not right of election to the office of sheriff, and that the majority was on his side, say his counsel: on the other side, say the plaintiff's counsel. And for the settling that right, he brought bis action against the plaintiff'; but it being determined upon the conviction for the riot, there is no such thing, gentlemen, as that it was therein determined: that cannot be a determination of any right at all. For though I may have a right to an office, or any such thing; yet I must pursue a legal method to attain to that right, and not go irregular ways to work. As if I have a right to come into your house, because you have not paid me your rent (to make my thoughts and meaning intelligible to you by a familiar instance, which will shew what I intend) I must not make a riot, and turn you by violence out of possession. For I have a legal course to come by my right, to wit, by bringing an action, and evicting you. But if any man attempt to get a right in an unjust manner, and he be punished for it by an indictment or information, that, I say, doth not determine the question of right, one way or other. To come then to the issue, that here you are to try; the point of this action before us resolves itself into a narrow compass, and is only this in short, which you are to enquire of, whether or no the plaintiff was arrested by the defendant without probable cause, and maliciously? Now matters of malice are things that remain in a man's heart; and it is impossible for me to discover, whether another man hath a malice against me, if I do not see it in his actions. Malice being a thing that is internal, is not else discernible. Therefore you must consider the circumstances that do attend this action of the defendant, and if so be they are malicious, then you are to find for the plaintiff: but if they for the defendant have offered to you any circumstances, that can prove, or convince you, that he had any probability of a cause of action, and that not attended with a malicious prosecution of that probable cause, then the issue is with the defendant. This is the right question, and the law of this action; and the fact to make it out one way or other is now in judgment before you, upon the evidence that hath been given on both sides. Now, in point of law, I am to tell you, and that you must observe, that though I have a probable conjectural cause of action against another man; yet if, to obtain my end in that, I prosecute him maliciously, with a design to ruin him, or to put an indignity upon him, or the character he bears in the public, or put a hardship or difficulty upon him (I mean hardship and difficulty in point of time), when it is probable the remedy may be had at another time, and the same thing done with less injury and less trouble; then an action will lie against me, for bringing my action in such a manner; though it be true, that I had a conjectural cause of action against him. As in the case that was here in this court the other day, of Mr. Swinnock against the serjeant, that came to him, and told him in his ear, that he had an action against him; and this was upon the exchange: thereupon Mr. Swinnock brings his action for this, against this man, for whispering this in his ear: if he had proved any malicious intention to disgrace him, no doubt the action would have lien. For though there might be a cause of action against Swinnock, yet if that be maliciously pursued to get him arrested, and held to bail, where no bail is required by law; or with an intent to disgrace him upon the Exchange when it might have been done elsewhere, or at another time, this irregular malicious proceeding will bear an action. The pursuing malicious ways to obtain a right, makes a man obnoxious to the action of the party so prosecuted. I desire to express myself by words, that may declare my meaning as plainly as can be: and I hope I do so. Then, gentlemen, taking it thus as the Counsel for the plaintiff say, to shew that the here was a probable cause as good as in this case, as it now stands, because some of them might happen not to have legal suffrages, yet the taking the poll by persons of their own heads, after the court was adjourned, avoids all: so that that would have signified nothing. You are to consider of this answer of theirs. defendant had no probable cause of action against the plaintiff; they endeavour to answer what is alledged on the other side as their probable cause. And therefore, that we must consider first, what is said by the defendant. They tell you, here was an election for sheriffs of London, at Guildhall, where those persons that they have nominated, were candidates, and put in nomination for that office. And upon that nomination, as say those three witnesses, we were the persons that had the majority of voices; and thereupon we appre-point of fact, you must weigh the evidence hend ourselves chosen, which gave us the right of action so the defendant, say they, sheweth some probability of a cause of action; and if he have not pursued it with malice, but in a regular way, the probability of the cause doth take off from the malice, that else the very bringing of an action without cause, would imply in itself. And they say true, for I must repeat it again; if I have, prima facie, a probable cause, and pursue it legally, no action will lie against me for it. But then, say they on the other side for the plaintiff, That is no probable cause; for you could from those transactions have no such apprehensions of a right; for that is not the measure of a right of election, or a rule to guess who is elected by: for there being no decision of the election upon the holding up of the hands, and a poll being demanded, whereas the usual method is to have, by the lord mayor's order and direction, the poll taken by such as he shall appoint; you went another way to work, you go your ways, and take books to yourselves, and come not to the fair determination of the question: and they bring Mr. Town-clerk to prove. You have heard what the evidence is, and you are judges of it. Now take it, that this were in the case of an office of profit; as suppose it were a question between me and John-a-Stiles, for the place of Bridgemaster, for the purpose, and a poll is demanded, and granted; if they, that have no authority, shall go after the court is adjourned by him that has power, and take a number of names in the way of a poll by themselves, and | upon that come and say, J. S. has four and twenty hundred, and I have but so many, that sure is not any probable cause, nor a right; for you have gone here out of the known and usual method of such matters, and depend upon that which can give no foundation of right at. all. This is the answer that is given to that by the counsel for the plaintiff. You may have fifty thousand names for you after that rate, and yet not be elected, nor have probable cause of any such apprehension. We all remember sir Samuel Sterling's case, which was upon the denial of a poll for a place of profit, that is to say, the bridgemaster's place: but this is upon a wrong poll. Suppose there had been a pol! granted (as there was) in this case, and upon that poll thus managed, sir Dudley North and Mr. Box had had the majority but by a very few, and there had been an action brought in such a case, | Then the great thing, gentlemen, that you are to observe, is this: to bring an action alone will scarce amount to a proof of malice; therefore malice being in this issue a great whether the circumstances do shew it, that there was malice in Mr. Papillon. If the circunstances are enough to amount to a proof of malice, you then are to find for the plaintiff, and you are the judges what damages it is fit to give him for that injury: he has laid ten thousand pounds; but you must do what you, that are judges of it, think fit in it. Come, gentlemen, it is best to be plain, and no man needs to be thought wanting of an apprehension, what is the meaning of all these things. It is commonly and universally known to all mankind : First, That no man ever did pursue such an action as this is, to be sheriff, till these unhappy times, wherein we are, and wherein we have lost that quiet and felicity, which I pray God we may be restored unto. And though it is true, a man may lawfully sue for such an office, and it is no offence, yet it looks somewhat extraordinary, and that a man has a mind to do something unusual in the place, it is for some strange purpose or other, especially when a man has fined for the office once before, as we all know Mr. Papillon did. Again, It is notoriously known, That for several years last past the government bath been beset: and that which is a baser thing than ever was thought of, or acted in the highest times of villany in these kingdoms (I mean those of the late rebellion), the very methods of justice have been corrupted, and all to serve the main design of subverting the government. Gentlemen, this is so black a wickedness that no honest man, that has any sense of loy alty, religion, or common justice, but must tremble at the very thoughts of it. When we see such fellows as are obnoxious to the government, known dissenters from the established worship, and that never thought of conforming to the government, or the laws, civil or ecclesiastical, or complying with the church, but only to capacitate them to destroy it; nay, when men, that are taken notice of to be common reproachers to the government under which they live, shall get into office to make Ignoramus juries, and to enable people to commitand be guilty of the falsities and basenesses, that human nature is capable of, no man living that has any ingenuity or goodness in him, but must cry out against it When men begin to take oaths to sanctify villainy, and enter into clans, and clubs, and cabals, to destroy the most merciful of kmgs, and to disturb, distract, and overthrow the best of governments, what shall we say? And all this you, all of you, gentlemen, know to be true. Was it not more safe to commit treason in the city, than to sit upon a bench of justice to bring the traitors to judgment? Was it not more safe to conspire the death of the king and his brother, than to give the least frown, or look of displeasure against one of these snivelling saints? Did not we know that men were sanctified to be jurymen, to enquire of conspiracies against the king's life and government, that before that time were never thought fit to be trusted with the common discourses or society of honest men? When men were thought fittest for offices of such high trust, according to their being thought capable of, and well-intended, to the overthrow of the government: do not we all know this to be as true as that the sun, shines at noon-day? When traitors at the bars were in less danger of being convicted of their treasons, than the judges were of their lives? Mr. Papillon knows all this to be true eminently. When packed juries were grown to that height, and though seven or eight witnesses came and swore positive downright treason, the traitor could not be by these men so much as thought fit to be accused by an indictment; to that stupidity in villainy were things brought by these fellows: nay, so far were the proceedings in courts of justice tainted, that in no common action whatsoever, that came here to be tried, but cropped hair and a demure look were the best signs of a good evidence, and the business of an oath signified nothing, provided the party were to be propped up, and the faction to receive an advantage by it. For God's sake, Gentlemen, let any man but seriously consider and believe that there is a God in heaven, and a dreadful Day of Judgment when every one of us must answer for every thought of our hearts, every word of our 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 fellowsheriff Mr. Bethel came into that office, there were ever in London such things as tavernreturns 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 your 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 practise 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 practisers 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, pricked-eared, snivelling, whining rascal out of another corner, to prop up the cause, and serve a turn, then truly people's 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 myself 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 map, were it not for the ingredients that are in the case, and any man, that has any sense, 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 governor 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 W. Pritchard would have been 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 governor 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 |