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are versed in that business; but here he must this city, and the government, in a mighty bave the direction of the attorney, and who is preservation, putting it into the hearts of some that but Goodenough, a man we have all beard | in power, to bring the city-militia some of them enough of; and then Burleigh and Keeling together, and prevent this mischief, or else, must be employed, and by whose advice, but God knows, this whole city might have been by Goodenough and Neltborp's ? And all these by this time once more in ashes, and most of rascals, who now stand attainted of treason, the king's subjects wallowing in their own and must be fetched in to consult about a fit man to one another's blood : and their party too would make an arrest: and there they pitch upon this have felt the sad effects of it, no doubt, as well man Keeling for one, who was one of the prin- as others. So that the consequence of it was cipal conspirators in that dawpable, hellish plot to destroy the government, and that appears by against the king's life, and that of his royal the party's being engaged in it; it could not brother ; but, by the blessing and Providence be to gain a right, to make this hubbub' and of Almighty God, was made use of as a great ado to arrest the magistrates of the city, and instrument of preserving those precious lives, then take advantage for some other wicked and with them our government and religion, purpose. and all that is dear to us, which by that con- Another point of circumstance that is consi. spiracy was undermined, and I wish we had derable in this case, is the particular persons, not reason to say, and think, the conspiracy that were to be sued. The mandamus, that still to be going on. But I hope in God the was directed to the lord mayor and aldermen; government, as established bothí in church and and there is a return made, not by this, or that, state, will always be able to prevail, maugre or the other man, but in the name of them all, all designs, and ihose that are engaged in them, the whole court. How comes it then to pass for its destruction.
that my lord mayor, sir Henry Tulse, and those Now Keeling tells you he scrupled the em- other gentlemen, must be sued and arrested ? ployment: No, said be, I desired not to have But I warrant you Mr. Cornish, or his party, my dame put in, because I was never con were not to be meddled with : No, he had so cerned in any such thing before, and my bu- much zeal for justice, and to do the defendant siness was of another sort. But then Mr. right, that if he should have been called apon Goodenough (and Mr. Brome the coroner no to appear, he would not have stood out an arJoubt had a band in it, though now he has a rest; so just a man he is, and such a lover of very treacherons memory, and has forgot all right without all doubt: but he was in no dan. that was done) comes and tells him, you must ger, I dare say; they loved one another too we!! concern yourself, and, do this thing; for you to sue one another. That, I say, gentlemen, have a trade with the party, and it will be ill is another circumstance, that carrieth malice taken if you do not do it. And being asked, in it. For I must tell you, these things canwhom he meant by the party ? lle tells you, not be smothered, they are as apparent as the the discontented party : and he explains their light: and though it falls to my turn in this discontent to be such, that they would have cause, to remind you of them; yet they are as killed the king and the duke. Now how far well known to you all, as the passages in your he was engaged with that party is pretty well own families. known, and therefore if he boggled at such a No, gentlemen, there was not a pursuit of thing as this, which that party it seem suas en right in the case; it was a designeil piece of gaged in, they would suspect him, and su, for villany un purpose to affront the government; the party's sake, he was drawn in.
nay, to destroy it, and set us all together by But then, when this thing is done, pray, the cars. And if he were ten thousand times Gentlemen, do but coosider what the conse- Mr. Papillon, I would, and must tell him so ; quences might have been, and which, perhaps, and if it were not for some such devilish end (nay upon what has happened to be discovered and purpose, he would never bave been so since, doubtless,) they did design it. But, Gal greedy of an office he had before declined and be thanked, those consequences were prevented, fined for ; and which he was only called to by and they themselves have cause to be thankful a turbulent, seditious, factioiss party, that had to God Almighty for it. For here all the ma- further aims in it. Otherwise, I know Mr. •gistrates of the city, that had any care for the Papillon's humour so well, that l'am confident; good government of it, were to be takea up, he would much rather have been conteuted to and then here was a body without a head, sit in his counting-house, than in Guildhall in a town full of faction without any government, a scariet gown. Alack-a-day! I know Mr. and if the beady rabble had been once up, with Papillon knows how to spend his time to bet. out those that had authority to restrain them, ter advantage to himself. where then had been your liberties or proper. Ay, but say the counsel for the defendant, ties, gentlemen, or any man's; nay, theirs We did go on very tenderly, and civilly, and that were engaged in this design, if they bau respectfully; for there met at Mr. Cornish's any? For those were things much talked of house–Who, I pray? Mr. Papillon, and Mr. by them. In what danger bad you, and all Dubois, and Goodenough, the prime attomey you had, for life, estate, relations, and every in this cause : and there, forsooth, they tell thing been ? But it pleased God in his infinite Goodenough, Be sure you do nothing but mercy to shower down upon us, and upon what is exactly according to law; and be sure you carry it very civilly and respectfully to As in case I have a mind to do any particular my lord mayor, good Mr. Goodenough. man an injury in his reputation and business; Alack-a-day! how wonderful pious and con- the business imust not be done downright, by siderate these people are! If Mr. Cornish had going to every body, and saying, Such an one gone to my lord mayor, as it was his duty to is poor, or a beggar, and do not trust him; but do, being then an alderman (we know it full I must cunniugly and slily insinuate it, I am well) and said to my lord mayor, there were sorry for such a man; I believe he is an honest such persons at my house talking of such a man, but however he oweth money; and under matter, and I come to advertise you of it, and this sort of snivelling, canting, whining, sly desire you would consider of it, he had shewn rate, do a man any injury whatsoever: 'and bis piety and zeal, and love for justice, much yet, forsooth, he shall have no advantage more in that, than in admitting such cabals in against me for it: I shall strike a dart into the his house. But we know very well, as well as very lieart of that man's credit, and yet he if we were in them, that they must go band in have no remedy. hand in all these seditious and factious busi- So, if I have a mind to talk against the go. nesses.
vernment, I will not do it aloud, and speak what It is plain, gentlemen, what the design was I mean openly; but I will wbine, and snivel, from the beginning to the end; nothing but to and cant, and make people believe I have cause a tumult and confusion in the city, in dreadful apprehensions of what is designing, order to put that damned hellish conspiracy, and yet not bring iyself in any danger; for I for the destruction of the king and his brother, will keep within bounds all the while, though and every man that was honest and loyal, in I do more mischief thay if I dealt fairly and execution. This is certainly known to you above-board. • Alack-a-day!' (as Mr. Pilall; and that there should be such a parcel of kington said) I am for the preservation of people untowardly linked together in this mat- the liberty and properties of the subject, and ier, not one man of which that they can pretend I am for the law; but I find the city is to be in any wise a well-wisher to the govern- strangely run down in their rights and priment, or to any that have any share in it: no, vileges, and there are very, arbitrary prothey are all persons that are obnoxious to the ceedings. And I am a citizen, and have government, that had any hand in it; but none' taken my oath to preserve the privileges of of them church of England-men, or friends to the city; and I will rather submit to the inber established worship; notorious dissenters, convenience of a troublesome office, than or profligate Atheistical villains that herd toge- let all run thus:' and immediately he sets ther.
himself cock-a-hoop, as if there were no one This, gentlemen, is plain English, and ne- that took care of the city besides himself, and cessary to be used upon all these occasions: he were such a patriot, that there were none So that it remains now upon your consciences, like him: and he, and Mr. Bethel, and Mr. whether upon all these circumstances that have Cornish, forsooth, are the only men of the been mentioned, you think the bare obtaining times; the only good men; men that are for of a right in a legal course, or some worse thing the liberties and properties of the subject, and was designed.
the rights of the city: whereas these are the We all know Mr. Papillon to be a wealthy only men that bave made an invasion upon man, an able merchant; one that had rather them, and done what they could to destroy have minded his affairs abroad, or at the Ex- then ; and God knows we might all of us change, than the expensive, troublesome office have enjoyed very quietly every man his own, of sheriff of London, but that something was to if these contesting rioters, and busy factious be done to wreak a damned malice and revenge fellows, had not come among us. Every ho. upon the government. And sure, he must nest man, I tell you, knows this to be true. think, as bis party it seems did, that they Gentlemen, As to the business concerning would not be sufficient to subvert the govern- the Damages, that, if you find for the plaintia, ment, unless he could get into that office, is left to your judgments to consider of, and
This I tell him openly; and let him or his give what you shall think fit upon such an ocparty make their remarks upon it as they casion. It is very true, it is not so easy a please. But you are to judge whether these matter to ascertain particular damages in such things be a sufficient evidence of malice to sup- a case; nor is it in an ordinary way so easy to port the plaintiff's action.
prove, that because sir William Pritchard was There was questionless a devilish malice in prison but five or six hours there, he could fixed in his heart and mind, and he wanted an sutier so much damage as comes to ten thou. opportunity to effect it; and he thought it for sand pounds. As in the case of a person of great his own security to be best to take this course, quality and honour, it is pot easy to prove his and nothing else was in it. For abundance of particular damage: nor in the case of any of people have a mind to do mischief, but want you, that are wealthy, able, sufficient citizens, opportunity and safe ways to do it in : and, to say you are a bankrupt, wben we all know Oh! they rejoice, if they bit upon a project, it is impossible to be true; and so no particular that sball carry a specious pretence and co- damage doth ensue that can be proved ; yet, lour of law; for then they think they are safe however, if the thing for which the action is enough.
brought were designed with malice, though VOL. X.
the ill design be not effected, that is no thanks their own affairs, and leave the administration to the party, nor is to weigb with you, but the of the public to them to whom it belongs, and malicious design must govern you.
is intrusted with. And according as we say Now, here I have taken notice to you, that in the law maxim, so say I to Mr. Papillon the malice of this design here was not against and all the party, ' Ad Concilium ne accedas, sir William Pritchard as such a particular man, antequam voceris.' And do not be scared but against my lord mayor, that this clan that with imaginary dangers, and groundless jeamet at Russel's was an overflowing of that gall lousies, iuto tumultuous and disorderly courses. or malice that was in his heart.
You had much better keep in your countingIf Mr. Papillon had brought an action npon house, I tell you again, and mind your mera bond only, certainly it had been nothing but chandize. Nay, and I do not doubt but you what he might very well do; or if he had pre would much rather have done so, if there had tended to sue for a bad debt, that if he had vot been some further fetch in it. It was not, staid would have been lost, it had been some- I dare say, out of a frank, generous bumour to thing : but you see what it was, and it is as ap- oblige the city, that Mr. Papillon would have parent why it was, in that Mr. Goodenough spent his time and money in the office of shesaid to Keeling, threatening him with the dis- riff; no, I know he had better ways to employ pleasure of the party if he did not do it; and both. Mr. Goodenough and Mr. Brome were such It was not the generous mind of Mr. Bethel, strangers to one another, that he must threaten that called him on to be sheriff of London, to Brome to complain of him, if he did not ex. entitle him to spend his money; but on pur. ecute his writs presently. Do they think all pose to be one of the first, that should turn all mankind are so dull or blind, as 'not to see things upside down in the city, and disturb the through such thin artificial stuff as this? government: and they that succeeded bim,
Gentlemen, this is the matter : the govern- carried on the project; and they that would ment is a thing that is infinitely concerneil in have been in, but could not, had a mind, no the case, that makes it so popular a cause : the doubt, to follow so worsbipful an example as government of the city, the honour of your he laid before them. chief magistrate, and indeed the bonour of the king, whose substitute he was, is concerned, Then the Jury withdrew to consider of their and that puts a weight upon your inquiry into Verdict, and after half an hour's stay, returned, the damages of this case. You are to consider and found for the plaintiff, and assessed dayou give damages to the plaintiff, not as sir mages to Ten Thousand Pounds, and costs to William Pritchard, but as lord mayor: and Four Marks. your severity in this case will deter all people from entering into clans and cabals to make L. C. J. Gentlemen, you seem to be persons disturbances, and affront the governinent. that have some sense upon you, and considera
It is a thousand times better to keep within tion for the government, and I think have their own bounds, mind their callings and giren a good verdict, and are to be greatly employments, and concern themselves with commended for it.
$12. The Great Case of MonOPOLIES, between the East-India
Company, Plaintiffs, and Thomas Sandys, Defendant: Whe-
all others, is good? 35 Car. II.-1 Jac. II. 1. D. 1683–1685.
by the Company upon this charter ; for that the
defendant not being a member of the Company MR. HOLT'S* ARGUMENT. has traded into the East-Indies without licence (AFTERWARDS LORD CHIEF JUSTICE.)
of the Company? My lord, I think there may
be two questions made in this case, first, wheThe Governor and Company of Merchants of ther or no this grant of the king to the Com
London, trading to the East-Indies, v. T. pany to have the sole trade to the Indies, ex
Sandys, T. Mich. 35 Car. 2. Rs. Rot. 126. clusive of all others his subjects, whether that The Defendant comes and prays Oyer of be a good grant? Secondly, supposing it to be
* “ The six following Arguments in this ralty) in Magdalen college, Cambridge. These Great Case, were copied from the MES. of Arguments are of great concern to the public Samuel Pepys, eaq. (Secretary to the Admi- in general, and to every individual man in this
a good grant, yet whether or no it does rest infidels are by the law taken notice of, and the such an interest, liberty or franchise in the law hath adjudged them to be perpetual eneCompany, that an action may be brought and mies; the law hath set a mark upon them, and maintained by them, against any person trading they are used as all other enemies are. And to the East-Indies; who is not qualitied by so 7 Rep. 17. 6. the express words of my lord this charter? My lord, for the first, I do hum- Coke are in Calvin's case; says be, intidels bly conceive that this charter granted to the are perpetual enemies. Reg. 282. That sets company to have the sole trade to the Indies forth the writ of protection, that was given to exclusive of all others is a good grant; and, the prior and brothers of the hospital of St. my lord; I shall endeavour to make it appear John at Jerusalem, that it was used for the to be a good grant from these considerations : defence of tbe church, contra Christi et omfirst, my lord, from the consideration of the niam Cbristianorum inimicos,' 12 H. 8. 4. persons that are to be traded withal, and they If a man do beat a man outlawed, a traitor, or are infidels, and not christians. Secondly, my a pagan, and they bring an action, he may lord, from the consideration of foreign trade plead his being a pagan; and in abatement of itself, how and in whạt nature by law, it may his action : I mention this, my lord, to shew be restrained by the king's royal power. And what opinion the law has of these people, in the third place, consider the circumstances judging of them to be enemies as they are in and particulars of this grant made to the com- tidels; and for that reason bas excluded them pany in this case.
from the benefit of the law, and the common My lord, for the first, that does relate to the justice the nation affords: and from that it may be persons to be traded with, they being infidels inferred, that since the law hath excluded them and not christians; I do conceive that by the from common justice, surely the law will not law of the land, no subject of England can alļow an intercourse or intimate correspondtrade with infidels, without licence from the ence with such persons to the subjects of Engking; or at least it is in the power of the king land. And, my lord, this is grounded upon to prohibit it, and for this very reason, because the care tbat the government hath, or ought kingdom, either immediately or by conse observations of the Court, or the conclusion of quences, since trade is the life of a nation ; and the cause : and it exhibits Pollexfen's Argumust be of great service to the professors of ment less correctly and less intelligibly. the law, to shew on wbat grounds and reasons the case was adjudged. And the proceedings Historical and Chronological Deduction of the
This Case is briefly noticed in Anderson's on the Quo Warranto (vol. 8, p. 1039), having Origin of Commerce, vol. 2, p. 566, edition of been found useful to the gentlemen of the law,
1801. What is there said ot' it is thus conis the reason why these Arguments, (though
cluded: not so properly à Trial) spoke by some of the greatest men that ever appeared at the bar, “ Lord Chief Justice Pollexfen laboured not are here inserted. The Arguments of Holt, unsuccessfully to prove the Company to be a Treby, Finch, Pollexfen, and Sawyer, are trué monopoly, and Sandys to be innocent, as very briefly abridged in Skinner's Reports. the Company was not established by any act But the Arguments of Mr. Williams, and the of parliament. Yet the king's prohibition for Lord Chief Justice Jefferies, are not mentioned the ship not to sail, obliged Sandys, after a there." Note to former Edition.
year's suspence, to sell off his ship
and cargo See, also, 2 Shower's Rep. 366; and the other interlopers, as they were then styled,
with great Joss. The ships and goods of some books referred to in Mr. Leaclı's edition of that were likewise seized and confiscated in the folwork.
lowing reign, in the years 1686 and 1687 ; but Among the MSS. of Owen Wynne, in the they took out no licence from the Company. Library of All Souls' College, Oxford, is a re- All which was decided against the spirit and port of the Arguments in this Case of Holt, maxims of our common law, partly for supTreby, Finch, Pollexfen, and Williams. In porting a lawless prerogative in the crown, that report there' are not inserted any obser- which, under a better monarch, six years rations from Jefferies at the close of Podexten's after this time, was agreed to be legally disa : Argument, nor is there at the conclusion of the claimed.” whole, any mention of the Judgment. The arrangement of Pollexfen's reasoning is some
As to the king's prohibition here mentioned, what differently exhibited, and the arguments
see 2 Shower's Rep. 302. Raym. 488. Some of the other counsel are reported with some
particulars respecting the East India Comverbal variations of trivial importance from the pany's Complaints against Interlopers are given report in the text. To Pollexfen's Argument, also notices the grounds of Jefferies's Judg
by sir Richard Bulstrode in his Memoirs. He is there, as here, prefixed a recital much at
ment. length, of the Declaration of the Plaintiffs. On the whole, the report in the text is much See the Arguments in the Case of the Commore full; and, as it seems, better arranged pany of Merchant Adventurers against Rebow. than Owen Wynne's, which contains not the 3 Mod. Rep. 126, and the books referred to in Argument of sir Robert Sawyer, the occasional Mr. Leacb's edition of that work.
to have, by the constitution of the government subjects of England have right to such a itself, of the christian religion, wbich I con- foreign trade, that they can, ad libitum, trade ceive is the main end of government. The without any controul ; and I conceive they profession and preservation of cluistianity is have not. of so high a naiure, that of itself it supersedes First, my lord, I conceive that the liberty all law: if any law be made against any point and right of a foreign trade, depends upou of the christian religion, that law is ipso jacio agreement and contract with foreign princes, void. Why? Because it is made against the in whose country the trade is ; and if so be it prime and original end of government. If the do depend upon agreement and amity with the king conquer a christian country, their law prince; then have not the subjects of England continues till it be altered by the king; but if such an uncontroulable right of trading, behe conquers a pagan country, the law ceases cause it depends upon the accidents of peace ipso facto to be law; for the law of intidels and war ; which, if there were such a rigbt, it is contrary and repugnant to the christian re- could not. 30 ch. Magna Charta, Omnes ligion. Why then, if the christian religion • Mercatores, nisi publice antea prohibiti fuebave the prevalence in christian countries, runt, habeant salvum et securum conductum there must be some means provided by the ' exire de Anglia et venire in Angliam, et mo.' law, whereby the king may bave a power to * rari et ire per Angliam præterquam in tempreserve it: and there is nothing niore dan-1: pore guerræ.' Then he goes on further, if gerous to the right religion, than for the pro- there happen to be war with a foreign prince, fessors of that religion to have commerce with and the kingdom of England, and the merpagans; we read how the children of Israel chants of that country be found in England; were perverted from the true religion, by con- this shiews that war is an interruption of the verse with the nations round about them, in commerce. 12 H. 7, ch. 6, my lord, that stathe Book of Judges.
tute recites, that the merchants-adventurers And Grotius De Bello et Pace, l. ?. ¢. 15 mhabiting within the city of London, and parag: 11. says, “Cavendum est enim ne divers parts of England, had free passage, &c. * pimia commixturalio contagiom alterat in- into divers parts of Spain and other places, that ' firmnis, quamobrem utile erit, sedes disiingui were in league and amity with our kingdom
sieut Ísraelitæ seorsim ab Ægyptiis habita- and sovereign; so that it appears that league runt.' The government is to take care that and amity is the foundation of commerce. there is not an infection, by correspondence Selden, in bis Mare Clausum, says, the rights with infidels; my lord, it is not to be doubted of trades are founded on the covenants of but that the king is to have a care of the curis- princes. What is the reason ? Lest the mantian religion. In old times of popery', Brac- ners and morals of the people should be corton, lib. 2. ch. 21. the king of England, says rupted by the example of foreign nations. My he, is · Dei minister et vicarius. Et 5. ch. lord, 2 Rolls Abr. 214, mentions the parliaBracton, “ Jus publicum est quod ad statum.' ment-roll ot' 1 II. 5, wherein it is said, That
This is looked upon to be part of the Jus the Conimons did petition the king that the publicum, the care of religion and sacred merchants of England, paying their customs things, and the propagation thereof; wby tben, and other duties, might have liberty to export my lord, if this be true, then it is lawful for their goods to any place or country, notwiththe king to take care and use his royal autho- standing any proclamation to the contrary: and rity, to prevent all his subjects from being per- the king says, He will be advised, he would verted. My lord, I think it is plain by the advise with his council. My lord, from that writ of Ne ereat Regnum, that says the king time to this it appears that there was no commay prohibit any person from going beyond plaint of the king's proclamation as illegal, sea. Why? For the defence of the realm ; ihat did prohibit their trade ; but they only that is a sufficient reason, it is not in the power pray that he would make av alteration of the of the party to litigate it with the king, but law. But there were several proclamations at he must subinit. Now always religion is first that time to restrain the subject from trading to be regarded; secondly, the defence of the with foreigners (therefore they desire he would kingdom ; and thirdly, the trade thereof. consent they might trade) ; but the king in Now, my lord, the subjects of a Christian that case did think fit to part with his power, prince going to trade with Infidels, being in but gives the usual answer in such cases. My their company, that may be dangerous to the lord, in the next place it is necessary for the state and religion ; so that it must necessarily king to have power to restrain a foreign trade ; be in the power of the king to controul it. Hob. because a foreign trade, as the case may be, 217. Courteen's case, it was a judged that an may be very inconvenient and mischievous : information did lie at the common law, before for it is well knowp, that if so be the importaany statute, against any persons that should tion of foreign commodities do exceed the extransport cuin, because it is against the policy portation of domestic, that trade is rather a and state of governinent that money should be grievance than a benefit ; so it is said, 2 Inst. transporied; now, if it be against the policy of 325, and, my lord, there has been sufficient state to trade with infidels, by the same reason appearance of this matter of late days. that ought to be restralued. In the next place, My lord, the importation of Irish cattle, by I will consider foreign trade, and whether the the 18th of this king, chap. 2, was declared to