Due Order of Law and Justice PLEADED AGAINST Irregular & Arbitrary PROCEEDINGS: In the Case and late Imprisonment of George Whitehead and Thomas Burr in the City and County Goal of Norwich, from the 21st day of the 1st Moneth, called March, 1679. to the 12th day of the 5th Moneth, called July, 1680. Being an Impartial Account of the most Material Passages (and Letters to the Magistrates) relating to the said Proceedings with the Prisoners abovesaid. Wherein the People called Quakers are Vindicated and Cleared from POPERY.
Published for Information and Caution, on the behalf of True Protestants and English-mens Birth-rights.
For among my People are found Wicked men, they lay wait as he that setteth Snares; they set a Trap, they catch men.
London, Printed by Andrew Sowle, and sold at his Shop in Devonshire New-buildings, without Bishops-Gate, 1680.
TO THE READER
ALthough the Publication of this noted Case of our Friends George Whitehead and Thomas Burr has been for some time delayed, through other occasions of Truth's concern intervening, yet 'tis not meet that such matters should be buried in Oblivion, or be laid by in Obscurity; wherefore at the desire of many Judicious and Well-meaning Persons (with respect to the good of our Nation and English Birth-rights) is this following Treatise exposed to publick view, not in Revenge to the Persecutor of our Friends, but for Instruction and Warning for time to come, especially of men in Commission for the Peace. The late Irregular and Unjust Proceedings against these our Friends concern'd, and how well the Lord enabled them to acquit themselves, both as English-men and Christians in defence of their Christian cause, many have understood; and their Christian and Gentle Behaviour towards the Magistrates, their Language in the following[Page]account bespeaks, wherein they do as well confess the civility of those Magistrates of Norwich, as impartially detect the Irregularities and Injustice of their Persecutor. I am not ignorant what the Judgment of able Counsel was in their case, I being one that made Inquiry therein, as to matter of Law, and 'twas concluded that it was False Imprisonment, being Against Law; and knowing our Friends Innocence and good Repute among their Neighbours, &c. as real Protestant Christians, this following Account is the more freely recommended to thy most Serious and Imparial perusal and consideration.
A Short TABLE Directing to the Matters treated on in the following Case.
- AN account of the Imprisonment, page 1, 2, 3, 4, 5.
- The Prisoners Letter before the Quarter-Sessions for the City and County of Norwich, p. 6, 7, 8.
- The substance of the Proceedings at Quarter-Sessions, from p. 10, to p. 35. in which are contained certain debates about the reading the Mittimus. The severity and unfair dealing of Francis Bacon Recorder, from p. 10, to p. 19.
- The Mittimus and Warrant, p. 19, 21.
- Eight Exceptions against the second Warrant for the strict detention of the Prisoners, p. 22, 23, 24, 25, 26.
- The Prisoners Protestation against Popery read in Court, p. 28, 29.
- About the Oath, Praemunire, Conscienee, Law, Controversie about their Discharge, the Recorder's unfair proceeding, p. 30, 31, 32, 33, 34, 35.
- The Commitment from Sessions, and Certificates on the Prisoners behalf, p. 36, 37.
- Certain Letters and Applications of Moment sent from the Prisoners to the Mayor, Justices, Aldermen, New Recorder and Steward of Norwich, p. 38, 39, 40, 41, 42, 43, 44, 45.
- A Narration of the Prisoners Case, directed to the Mayor and Justices, p. 46, 47, 48, 49, 50, 51, 52, 53.
- To the Recorder and Steward; a Comprehensive State of the Case, p. 54, 55, 56, 57, 58, 59, 60, 61.
- A Copy of Francis Bacon's Warrant for leavying the Fines, p. 62, 63.
- [Page]Exceptions against his requiring the Oath of Allegiance, and his Commitment from Sessions, p 63, 64.
- Of Praemunire; the said Exceptions about the tender of the Oath de Novo further argued, from p. 65, to p. 74.
- A more general Plea in the Prisoners case about the Reasons of the Oath, and of the Penalty of Praemunire, from p. 75, to p. 86.
- Exceptions which the Prisoners had in readiness in Court against the manner of their Imprisonment, p. 86, 87, 88, 89.
- Notes out of Dalton and others, concerning the breach of the Peace, and Assemblies; what are unlawful, and what lawful, p. 89, 90, 91.
- A Copy of the Discharge of the aforesaid Prisoners, p. 91, 92.
- Assemblies of the People called Quakers vindicated, from the charge of their being in Disturbance of the publick Peace, p. 93, 94, 95, 96, 97.
- Norwich; An account of the People called Quakers sent to Prison by Francis Bacon when he was Steward, and also since he was Recorder, p. 97, 98, 99.
- Norwich; A brief account of what Goods have been taken from some of the People called Quakers in Norwich, since the Year 1670. to the 30th day of the 1st Moneth, 1680. by Warrants from Francis Bacon, p. 99, 100.
- A Copy of an Address from our Suffering Friends in Norwich, in the Year 1679. directed to the Knights and Burgesses for the County of Norfolk and City of Norwich. p. 101, 102, 103.
A Brief Account of the late Proceedings in the City of NORWICH, against George Whitehead and Thomas Burr, by Francis Bacon, Recorder, about their late Imprisonment in the said City, the 21st Day of the 1st Moneth, called March, 1679/80.
WE, the said George Whitehead and Thomas Burr, providentially and unexpectedly meeting together, about 10 or 12 Miles from the City of Norwich, the 19th day of the 1st Moneth, and Year abovesaid, we were both determined (from a Necessity upon our Spirits, in true Friendship and Christian-Charity) to visit our Friends at their publick Meeting in the said City, on the first day of the Week next following, which was the 21st day of the same Moneth, 1680. which we could not well omit, as with clearness in the sight of God, or with inward Satisfaction to our Consciences, although we understood beforehand what Evil Agents, Persecuting Informers and Disturbers were apt to be busie against our Friends Meeting in that City; we freely submitted to the Will of God, and with our Eye to him resigned to divine Providence, as to what might be suffered to come to pass for the holy Truth's sake and service. The account of that day's Transaction with us follows.
Upon the 21st day of the 1st Moneth, 1680. being the first day of the Week, the Meeting of the People called Quakers, of the said City, continued peaceable in the Forenoon, and likewise in the Afternoon, for about half of the usual Time of the Meeting, in which time, Thomas Burr had an opportunity peaceably to declare the [Page 2]Truth, and after him George Whitehead for a little space; in the enterim came in a rude Company, chiefly Informers, Tumultuously and Violently crowding into the Meeting, to pull G.W. down: He divers times required them to shew some Legal Authority: They used several abusive words, and endeavoured to insinuate to the People, That he might be a Jesuit; and demanded our Names and Places of Abode. G.W. detected their Abuse and false defaming Insinuation to the People, and discovered his Name and Habitation, to prevent Suspition in the People. Again, he demanded by what Authority they came thus to disturb our Meeting, and call us in Question? bidding them produce their Warrant; but they refused to give Account, or shew any Warrant. So after some Tumultuous Bustie, and Hiddious Noise that they made in the Meeting (being prevented by the great Crowd, from coming at us to hale us away) the chief of them with-drew; and in a little time after, one of the Sheriff,i.e. Tho. Seamans. of the City came in, calling for us, and came to us (the People making way for him) he required us to go along with him, taking G.W. fast hold by the hand, and led him along out of the Meeting, near about half way to the Prison, with other Persons with him, that were the Disturbers and Informers, to guard us along to the Prison; the Sheriff turned us in at the Goal Door, and left us there, where we were detained about two Hours, and then were sent for, and by the Goaler were had before Justice Bacon, the then Recorder of the City, who after some time called us into a Room (many other Persons coming in) where the Priesti.e. Priest Whitefoot. of the Parish was also with him, who at first seemed offended, and began to Question with us about our Hats, and afterward about Sacraments, &c. often interrupting and interposing between us and the Justice, as one seeking occasion against us, but was plainly answered and reprehended by us, the Prisoners, for his Incivility, though the Recorder shewed no dislike of his Carriage; who having his Law-Books and Bible before him, first begun with us about our Names, Habitations and Trades; and enquired, If we were in Orders, or had Orders from Rome. To all which we gave him a plain Account, denying any such Orders; and solemnly (in the Presence of God) declared our Abhorrance of Popery. Then he Questioned us about our Preaching that day in the [Page 3]Meeting. To which we also gave him a Plain and Christian Answer. After some Discourse, he read part of the Act against Conventicles, 22 Car. 2. Cap. 1. and insisted upon it, That we were Offenders of it; and threatned, that he would Fine us 20 l. a man; and then demanded of us to Deposit the Money: But we told him, we had not Freedom to do that, although we have Estate [...] Responsible (that lie open to the Law) where our Habitations are: This we told him, and did some-what insist upon it, that he might not F [...]ne others on our account: And partly to prevent him from imposing the Oath of Allegiance upon us, to circumvent and entrap us, he being about it, questioned us, Whether we would take it or not? We answered in General, That we could take no Oath for Conscience sake; and therefore desired him to take that as a Caution, not to go about to ensnare us there-with, since he had begun with us upon another Statute, touching our Meeting. He said, If we would neither pay the Fines, nor take the Oath, he would commit us to Goal: And finding none ready to deposit the Fines, the Informer whispered him in the Ear (as he suffered him several times to do, though requested by the Prisoners to the contrary,) Then he enquired, When we came into the City? and where we lodged? and where we set up our Horses? To all which we gave him account; whereupon one or more of the Informers (after some whispering with the Recorder) went from him to the Inn where our Horses stood, but in the very enterim some Friends took them away unknown to us the Prisoners, (though some have wrongfully upbraided us in that matter, as craftily designing and knowing of it.) So he told us, He would commit us to Prison, till next Sessions, and there the Oath of Allegiance should be again tendred us; and we should be Praemunired if we refused to take it: But if we would pay our Fines, he should not send us to Prison: Which we not doing (having told him where our Habitations and Estates were, which were Responsible) he concluded with these Words, viz. De non aparentibus et non existentibus eadem est ratio; Of things not appearing, and things not in beeing, there is the same Reason, i.e. Our Estates that are at London and Ware appear not at Norwich; therefore they are not in Rerum Natura, or not in beeing.—Strange kind of Logick, or Reason in this Case! After a little space he told us, That if we would give in Security to appear at [...] Quarter-Sessions, he would not send [...] to [Page 4]Goal: Which we not having Freedom to give, we requested of him, That he would but let us lodge out of Prison that Night, that convenient Lodging might be made ready in Prison for us (it being then some-what late in the Evening) we promising (God willing) to appear at Prison next Morning; and some others present, proffering to Engage for our forth-coming then: No, by no means would he grant us that small Civility, unless we would Engage in 40 l. Bond or Security for our appearance next Morning at Prison; which Kindness of his, not being worth farther Discourse, we accepted not of it. So he sent us that Night to the Goal, where we remain satisfied in the Will of the Lord, to wait upon him in Patience and Submission to his good Pleasure.
Many material things passed between us, which cannot well be Collected in due Order, others are omitted for brevitys sake.
POSTSCRIPT.
Note,THat among other Reflections, the Recorder (rendring the said Prisoners Seducers, Seditious, &c.) he told them of a Statute yet in Force, that was made in Q. Elizabeth's days35 Eliz. cap. 1. To Hang such Persons as they were. Being asked by the Prisoners, If he could prosecute them upon that Law, or execute it upon them? He answered, Yes, if the King should give Order to have it put in Execution, he would do it; he would prosecute them, and have them Hang'd, if they would not abjure the Realm, &c. or to that effect.
After the Substance of the Account given before was writ, these following Testimonies were by some Friends delivered to the Prisoners, wherein are the Names of some of the Tumultuous Disturbers and Informers before-mentioned, some whereof refused to tell their own Names, when asked in the said Meeting.
This was observed in the late Disturbance of our Meeting in Norwich, the 21st day of the 1st Moneth, 1680. That Paul Hartly, one of the chief of them, was seen to snatch off John Sharpings Hat and threw it a great way over the Peoples Heads in his Wrath.
THe 21st day of the 1st Moneth, 1680. one Christopher Nobs, Clerk of Gregories Parish, came into the Meeting at Norwich, Pushing on each side with his Elboes, and smote Rose Gogny such a hard blow on her Breast, that her Breast was sore several dayes. Also Charles Alden, the Vintner, at the Sign of the Chairing-Gross, came calling out, Here's Sons of Whores! Here's five Hundred Sons and Daughters of Whores! The Church Doors stand open, but they will be Hang'd before they will come there. And whilst a Friend was speaking, the said Alden said, Pull down that Puppy-dogg; why suffer you him to stand there Prating?
It plainly then appeared, that the said C. Alden, and the rest of those Rude and Tumultuous Persons behaved themselves more like Atheists and Bruit Beasts, than Persons of any Seriousness, Regard to Religion or Christianity: Nay, let Humanity and Common Civility condemn their Deportment. What Ornament such Sons of the Church can be to her, let their Priests, and all serious Persons judge (though the said Alden be accounted a great Singer at the Cathedral, i.e. one of their Singing-men) how Immoral and Bruitish was his Behaviour? How busie was he also with the Recorder against the Prisoners, informing, muttering and whispering against them? greatly inconsistent with so much as the pretence of common Justice to suffer, much more to countenance such work. Surely the Righteous Judge of all will plead with all such Malicious Agents, and such Injustice will not go Unrebuked.
Here follows a Copy of the Prisoners Letter, delivered to the Mayor before the Quarter-Sessions, containing a twofold Request, &c.
To the Mayor, Justices and Aldermen of the City of Norwich.
WE whose Names are hereunto subscribed, being Prisoners in your City Goal for our Conscience towards God, do heartily wish Health, Happiness, and Prosperity in the Way of Righteousness, unto you all; and desire of the All-seeing and Heart-searching God, that you may be preserved from all Injustice, Prejudication and Arbitrary Proceedings, both in our Case (which we understand is to come before you) and in all other Cases proper to your Cognisance, as Civil Magistrates, wherein you are required to discharge a good Conscience, both in the sight of God and Men, as that which will greatly tend to your Peace with God, and your Reputation among good Men.
For as much as we have for some Weeks been detained Prisoners in your City Goal, and you have had no hand therein (saving that one Person, by whom we were committed) we are the more encouraged to make this brief Application to you, upon a twofold Request, on this wise:
1st, We Request your Moderation and Indifferency so far towards us, as that when we are called before you,[Page 7]as a Court of Judicature in your Quarter-Sessions (to hear and determin Matters, that come Judicially before you) you will please to hear us with Patience, and suffer us to open our Case and to Plead and Argue, whether it be in point of Law, Conscience, Reason or Fact, as our Case shall require. First, Hear before you Determin, that we may not be over born, nor run down, nor any such Precipitation used towards us in Court, to divert or prevent us from making our Defence, in referance to the Prosecution and Charge we suffer under.
2dly, We further Request, That if upon a deliberate hearing, and due enquiry into those Proceedings which we suffer under, we make it appear, that we are Illegally and Unduely proceeded withal, besides and contrary to due process and order of Law, that then you will not countenance, abet, nor confirm such Proceedings against us, but stand clear thereof, and shew your Dissent; for whoever be deputed Judge in your Court, as the King's Minister and Mouth of the Court, 'tis no otherwise so legally intended, than as he shall appear to be the Minister and Mouth of the Law and Justice, or Lex Loquens; and therefore cannot be reasonable or safe, nor yet for your Reputation, or the Honour of your Court, to espouse or confirm any Prosecution or Proceedure that's Injurious or contrary to due course of Law, and so tending to the 37 Ed. 3. c. 18.Grief and Dishonour of the King, or Destruction of any of his peaceable People.
Now we hope you'l not deny, but assent to these two fore-going Propositions, as Just and Reasonable: And therefore, that we shall not need now to urge upon you, but only Re-mind you of these material Points of Law following.
- [Page 8]1st, It is the Kings Will (in point of Law) That all his Justices, Sheriffs, Mayors & other his Ministers, which under him have the Laws of the Land to guide. shall allow the great Charter of the Liberties of England, pleaded in all its Points. 25 Ed. 1. c. 1. Cook Inst. 2 part sol. 527.
- 2dly, That if any Judgment given, or any thing done contrary to the Points of the said Charter by the Justices, or any other the Kings Ministers, that hold Plea before them against the Points of the Charters, it shall be undone, redressed and holden for nought.25 Ed. 1. c. 2. 5 Ed. 3.9.28 Ed. 3.3. &c.
- 3dly, The Court ought to be of Counsel with the Prisoner, to see that nothing be urged against him, contrary to Law and Right. Cook Inst. 3 part fol. 29.
- 4thly, That the Court ought to be so far from over-awing, or forcibly diverting the Prisoner from his Plea or Answer, That the Judge ought to Exhort the Prisoner to Answer without fear; and that Justice shall be duely administred unto him. Cook Inst. 2 part fol. 316.
- 5thly, That any learned man that is present, may inform the Court, for the Benefit of the Prisoner, or any thing that may make the Proceedings Erronious: As also (even in Cases highly Criminal) it is lawful for any man that is in the Court, to inform the Court, lest the Court shoulderr, and the Prisoner be Unjustly proceeded with. See Cook 3 part fol. 137.Cook Inst. 3 part fol. 29.
Now Friends, these things are recommended, and left to your serious Considerations; we not designing hereby (as you may easily understand) to enter into the Merits or Justification of our Cause; but fairly to introduce the Right and Legal Cognisance thereof, in order to have Justice and Right done us, as ENGLISH MEN, and as we are your Well-wishers.
An Account of the substance or principal Parts of the Proceedure at the Quarter-Sessions at Norwich, holden for the City and County of the same, the 18th Day of the Moneth, called April, 1680. In the Case of George Whitehead and Thomas Burr, Prisoners for the Testimony of their Conscience. Francis Bacon, the late Recorder of Norwich, being Prosecutor, Accuser and Judge: But the Mayor and other Justices more indifferent and Judicious towards the Prisoners.
Collected and compared by several Hands, and digested into as much Order, as the Capacity the Sufferers, and the Circumstances of Proceedings would admit.
THe Quarter-Sessions for the City and County of Norwich begun the 19th Day of April, (so called) 1680. Adjourned until the 26th, and continued the 27th and 28th of the same. And again, Adjourned until the 17th of May, 1680. The aforesaid Prisoners, G.W. and T.B. were called into Court the 27th of April, in the Year above said; nothing said to them then by the Court: but they returned back immediately to Prison, upon pretence of a mistake about their being called forth.
At the Quarter Sessions for the City and County of Norwich, the 28th Day of April, (so called) 1680.
1. THe Prisoners were brought to the Bar.
2. Their Hats ordered to be taken off.
3. Their Hats taken off.
4. G.W. standing up to the Bar, begun thus, viz.
The Law of England requires two things of the Court, with respect to the Prisoners, viz.
- 1st, The patience of the Court; And
- 2dly, The Indifferency of the Court
towards the Prisoners.
That their Case may be patiently heard and considered, (without Prejudication) before any Judgment pass against them. This we expect from the Court.
We have been five Weeks in Prison: 'Tis meet the Court should know for what. Pray let our Mittimus be produced, and read in Court; that it may be understood what Charge we suffer under.
Our Suffering is two fold: 1st, Above five Weeks confinement: 2dly, The Charge that's against us in the Mittimus. We request that the Mittimus may be produced, and read in Court.
There's no need of your Mittimus to be read here; I'le give Account of the Cause: I'le inform the Court. These Persons had been two An Untruth. Moneths from home, and had been up and down the Country in SuffolkNot true of T.B. 'twas only G.W. at a Burial, &c. And then they came hither, and here they gathered a company together of about two Hundred; and the Officers went from me to dissipate them, but could not; whereupon I sent the Sheriff, and he took them away, and put them in Prison. The Prisoners had not opportunity to speak to all this Account.—And then they were brought before me; and after Conviction made, I proffered them, That if they would pay their Fines—I would not commit them to Prison; but when they would not, I tendred the Oath of Allegiance to them: And after they[Page 11]would not take it, I sent them to Goal; as I think, I very well might.
We are English-men, and have right to Travel in any part of the Nation, &c.
I am a Person that have been concerned in Trading in Corn, as well in this County as in others; and by the Law of England a Man may Travel from place to place about his Concerns, and ought not to be molested, while he walks peaceably, &c.
Had not you better been turning your Molt at home, then to come here to Preach?—The Apostle Paul exhorts to follow the Vocation whereunto ye are called.—The Scripture says, God added to the Church such as should be saved: But ye draw from the Church.
Prisoners Note.The Prisoner heard not these Words, but some others affirmed they did: However, had the Prisoner heard this Reflection before, upon a fair debate upon the Point, he might have answered the Recorder; That to be a Trades-man, or Lay-men (so called) is not inconsistant with being a Preacher of the Gospel. When God added to the Church, it was through Lay-mens preaching, such as Fisher-men, Handicraftsmen, and such like. 'Tis Popery, and the Popish Spirit, that would hinder Lay-men and labouring men (being indued with the holy Spirit) from being Preachers of the Gospel; and not the Spirit of Moses, who wisht, that all the Lords People were Prophets; nor the Spirit of the holy Prophets, Christ or his Apostles, who did not go about to exclude Lay-men, or Mechanicks (so called) from preaching the Gospel; for the best Preachers were generally such in the Prophets and Primitive Christians dayes.
There is a Law—And the Church of England will never be at quiet, till some of you be Hanged by that Law (or till such fellows as you are Hanged.)
The Court may see the frame of the Recorders Spirit towards us, and that he stands not as a Person Indifferent, but a party against us. Thou oughtest not to inveigh against the Prisoners, nor threaten us. That stands not with the indifferency of the Court, nor yet thy determining or resolving afore-hand against us, as thou hast done. Judges ought not to declare their Opinions afore-hand against the Prisoner: Hussey, the Chief Justice would not do it to the King, in the Case of Humphry Stafford, the Arch Traytor, but[Page 12]begged of the King, He would not desire him to declare his Opinion afore-hand, that the Prisoner might come Judicially before him, and have Justice done him. See Cook, 3 part Inst. fol. 29. And the King accepted his Request in the Case—Interrupted.
What King's Reign was that in?
In King Henry the sevenths.
I perceive you have read (or are read.)
Seeing that none of the Court have as yet had any Hand against us, except the Recorder; we may charitably hope, that the Court will stand indifferent towards us, and let us have a fair hearing before any Determination. For as the Laws of our Nation require a due process, a due course of proceeding, before men be Sentenced or Condemned. So there ought to be a due hearing: As where a process or proceeding consists of several parts; each part ought to be enquired into, and answered in due order, without confounding one thing with another, or putting that first, which in course is last. Let us have a fair hearing and Tryal. Let's be tryed before we be Hanged. Let's not be Hanged first, and then Tryed: 'Twill be too late to try us after we are Hanged, &c.
You were sent to Prison for refusing the Oath of Allegiance.
That's a mistake: We were sent to Prison for being at a Meeting, charged to be against the Peace, which is the Premisses in our Mittimus, to which we are here to Answer. And therefore that all may know what is laid to our Charge, we desire our Mittimus may be read, that so, if there be any Persons, that will undertake to prove the matter in Charge, let us see them, and have liberty to answer the Premisses contained in the Mittimus.
I will shew you, that when a Person is committed to Prison, he may have several Actions laid upon him; if new Charges be brought against him, &c.
I grant that: But that's not our case; for we presume the Recorder had no new matter brought against us, after he committed us to Prison; and therefore could not lay any new charge upon us.
There could not be any new Charge against us, to render us suspitious of being Jesuits or Papists; but instead of that we[Page 13]have Certificates to take off any Jealousies of that kind, that might be in any concerning us, which are subscribed by Credible Persons of our Neighbourhoo [...]d
The Premisses which we are to answer to, is matter of charge, contained in the Mittimus: Let it be read in Court we request you.
It shall not—I'le give account. These Persons were taken at an unlawful Meeting. There's also a second Mittimus, which signifies my requiring them to take the Oath of Obedience; and their Refusal, &c.
The second is a Warrant to detain us without Baile or Mainprize, till Sessions: 'Tis not the Mittimus, 'tis of another Date, &c.
'Tis the Mittimus; and you are to Answer to it, whether you will take the Oath of Allegiance to the King. These Persons have refused to shew their Obedience to the King, &c.
Pray forbear to accuse us: We have shewed our Obedience by our peaceable Conversations, &c.
The second Warrant is not the Mittimus. The Mittimus is that by which we were sent to Prison, bearing date the 21st day of March. The second Warrant bears date the 23d day of March.
The second is the Mittimus; you are to Answer to it. Wee'l put the Oath to you.
The second is not the Mittimus; we were not sent to Prison by it: We were sent to Prison the 21st of March. The second Warrant bears date the 23d of March: We were in Prison (near two dayes) before the date of the last Warrant: There needed not be a Mittimus to send us to Goal, when we were sent by one already so long before. I pray let our Mittimus be read in Court.
Put the Oath to them, that's in the second Mittimus, &c.
I beg of this Court, for God's sake and the King's sake, to be heard fairly, without thus being run upon: For God's sake, because he is a God of Justice and Truth: And for the King's sake, because the King's will towards us (as Subjects) is what the Law and Justice wills. As his Will is the will of the Law; he wills that none of his Subjects be injured, or unduly prosecuted contrary to Law. I appeal to the Mayor as chief Magistrate of this City,[Page 14]and the rest of the Justices here present, Whether ye ought not to see us have that Right done us, as to have our Mittimus produced and read in Court, that you may understand the cause of our Commitment: We were not committed for refusing the Oath. We intreat that the Court may hear our Mittimus, that we may not have other Premisses put upon us, than what's contained therein.
It shall not be read; there's no need of that: I am present that committed you—
I appeal to the Mayor and the rest of the Justices, who are more indifferent towards us for Justice in this case, viz. That we may have our Mittimus read, and answer to the Premisses contained in it; and not thus be run upon and diverted with that which is none of the Premisses, &c.
You have appealed to me: Truly we are Trades-men, and no Lawyers. We leave matters of Law to the Recorder; He knows the Law, and we must acquiess in his Judgment.
Thou understandest we ought to have our Mittimus read, and be heard: And thou art the chief Magistrate in this Court, &c.
You all have a Conscience towards God, and an equal and just Law therein; And you are under a severe Obligation, to wit, your Oath, to see Justice and Right done us. We appeal to the Mayor and Justices here for Justice, in relation to our Mittimus, that it may not be thus evaded. We are at this Sessions to answer to the Premisses, or matter of charge therein contained; you are concerned in Conscience to do us [...]ight herein. The Honour of this Court is also concerned not to see us precipitated no [...] run down, upon other Premisses. The Mittimus was given under the Hand and Seal of your Recorder; his Reputation and Honour is also concern'd, &c.
My Honour concern'd; Wherein?
Thy Reputation and Honour is concerned, in that thou art bound to stand by our Mittimus; 'tis under thy Hand and Seal: Now thou goest about to evade it, by imposing other Premisses upon us (or to the same effect.)
They sent their Mittimus to the Attorney General, and sollicited him for advice, to know whether they were according to Law, or [Page 15]not—And moved for a Habeas Corpus: But it would not be granted.
We neither sent to the Attorney General, nor have we yet moved for a Habeas Corpus.
The second Mittimus or Warrant is about their refusing the Oath of Allegiance: as for the first, I did not make it by Book. This the Prisoners did not hear, but others nearer.
'Tis not a reasonable thing to bring a Prisoner, and not withal to signifie the Crimes laid against him: It was contrary to the very Law of the Romans.—Interrupted (being about to add) as Festus said in the case of Paul. It seem'd to me a thing unreasonable to send a Prisoner, and not withal to signifie the Crimes laid against him;Acts 25.16,27. which alwayes ought to be in Warrants of Commitment.
What tell you us of the Law of the Romans, we have Laws of our own to act by, &c. (or to that effect.)
'Tis according to the Law of Reason and Nations, that the Crimes and Offences should be known, for which Prisoners are committed and detained in Prison; else why should they suffer?
The Court must tender you the Oath.
Wherefore then were we committed and detained in Prison above these five Weeks? If we be Offenders, let's know our Offence, for which we were committed: If not, do not go about to ensnare us; do not seek occasion against us: 'Tis enough to punish us, if found Guilty of what charged against us, in our Mittimus. We entreat the Mayor and Court to do us right in this matter, that our Mittimus may be read.
Well, you shall have it read.
Keeper, Where's our Mittimus, produce it, that it may be read, as the Mayor and other Justice here present have engaged.
Tender them the Oath. Put the Oath to them; If you'l take it, that shall serve, &c. If not, you incur a Praemunire, &c.
A hiddious noise in the Court among some under Clerks and Officers about the Oath, viz.
What say you? Answer. Will you take the Oath? Will you Kiss the Book?
I Thomas Whitehead do truly and sincerely acknowledge, profess, testifie and declare in my Conscience, &c. Here an Interruption, upon his mistake of Thomas for George.
The Oath is none of the Premisses contained in our Mittimus, which we are to Answer to at this Sessions, and to be tryed upon.
Our all is at stake. We perceive the Recorder is determined concerning us. We must have liberty to speak: We are Free-born English Men. This on the Interruption.]
We have power here to tender you the Oath, without taking notice of any other Cause.
'Tis Preposterous to run us upon the Oath in the first place; we being not committed for that, but for other Causes.
You affront the Court. Is that a fit Word to give the Court, to charge the Court with Preposterous proceedings (or to that effect.)
I do not charge the Court, I do distinguish between the Recorder in this point, and the Court: He seeks to run us upon that first, which in course is last, according to his own Mittimus and Warrant [And is not that Preposterous?] Let our Mittimus be read, and that will shew we were not committed upon the Oath.
We ought to have due process or proceeding in due course of Law; therefore the Court should know, how we were first Arrested, and turned into Goal by the Sheriff, without Examination, Mittimus or Warrant; and how afterward had out and committed; and what the Mittimus is; What are the Premisses contained in it, that we are to answer unto.
The Law of England is tender of mens Liberties, Properties, Estates and Lives, all which are concerned in our Imprisonment; Lex Anglia' is said to be Lex Misericordiae, i.e. the Law of England is a Law of Mercy; one Reason whereof is, that the Innocent may not be worn or wasted through long Imprisonment, but be brought forth speedily to his Tryal, according to Magna Charta, &c.
Look what an Argument or Consequence you would draw from hence, The Law of England is a Law of Mercy; 'tis Lex Misericordiae, [Page 17] therefore Thieves or Malefactors, &c. must not be brought to condign Punishment, &c. or to that effect.
That's none of my Consequence; mine is the same that Judge Cook doth instance, wherein the Law of England is Lex Misericordiae, in that 'tis tender of mens Liberties, and prescribes a due course of Proceedure—Interrupted—as it may be applyed to our Case. Either we are Innocent or Nocent; if Innocent, we ought to be heard, and not delayed in Prison; if Nocent or Criminal, we ought to have due and orderly proceeding, according to the Law of the Land, that our Offence may the more plainly appear, that others may take warning thereby, and not incur the like Penalty or Suffering. However, let's have fair dealing; let's not be unduely run upon, diverted from our Plea, and our Mouthes stopt, so that the Court and People here cannot know what we suffer for.—
No Free-man shall be taken or imprisoned, or disseized of his Freehold, or otherwise destroyed, &c. but by due process and order of Law.—
This Magna Charta enjoyns, where in the 29th Chapter 'tis said, No Free-man shall be taken or imprisoned, &c. but by the Law of the Land; that is, by due order of Law, by due process, according to Law. The Law of England requires due process or proceeding, from the very first Arrest, taking and imprisoning to the very end and execution of the same. Therefore the first Arrest, Imprisoning and Committing us, ought to be known and understood, whether it was in due Manner and course of Law, Yea or Nay.
Let us have our Mittimus read, we expect it; 'tis granted and promised us by the Mayor and others indifferent. A little respit in expectation of the Mittimus.
But the R.Recorder seemed greatly offended at the Prisoners urging this, and at the Mayor and Justices assenting to it.
Seeing, that the Law is tender of English mens Liberties, as that no Freeman shall be taken or imprisoned, &c. without due proceeding in Law, &c. 'Tis but meet and reasonable, that the Court and People here should understand what capacity and repute we are under among our Neighbours, that is, whether as Freemen of England, and of any Repute among our Neighbours, or as Bond-slaves, Rogues, or Vagrants, Renegado's, &c. Hear what[Page 18]our Neighbours say of us; we desire their Certificates may be read.
What have we to do with your Certificates? wi [...]l any Swear to them that they are true ones?
They are real Certificates; pray let them be read; here they are.
We do not know, but that you might make them your selves in Prison.
They are no Fictions: Pray read them, or let them be read; they are from Persons of Credit and Repute, as Common-Council men, Deputy Constables, Church-Wardens, and others.
They shall not be read.
We beg they may be read: Look upon this Certificate, here's the Persons own (Different) Hands to it; it may tend to inform the Court, and to remove Suspition and Jealousies concerning us [But this would not be granted the Prisoners.]—
Seeing our Certificates may not be read, nor suffered to be read (which is but hard measure) now let our Mittimus be produced [several expecting the Keeper had sent for it] Pray let us have our Mittimus produced and read.
We have it not, the Goaler has it.
Where is it? Keeper, produce it; thou hadst it.
No doubt you have a Copy.
Yes, we have; May I read it?
I crave Liberty of the Court to read it, that the Court may understand what we are committed for, and to answer to that, this Court is to take Judicial Cognizance of, &c.
The Justices asked the Question from one to another to have it read, generally assenting thereunto, as being of the Mind it ought to be read.
I am of the Mind it should be read; What say you Mr. Bendich?
Yes, truly I am of the mind it should be read.
Pray speak to Mr. Mayor (which was done.)
Sir, the Justices are agreed it should be read.
R. Turning himself towards them, as one greatly offended that the Mittimus should be read.
It concerns the Court to let us have our Mittimus read. I am ready to read the Copy (seeing it may not be otherwise produced and read.) Shall I read? We expect that Justice from the Court, that it should be read.
Let them read it then, I am not ashamed of it; then read the other also, for you have them both.
You may read it.
Now we have the leave of the Court; I hope you'l keep to it: Observe it, 'tis a true Copy. The Mittimus read which followeth.
The Mittimus, viz.
City and County of Norwich. WHereas George Whitehead of the Parish of St Buttolph in London, Grocer, and Thomas Burr of Ware in the County of Hartford, Maulster, have this day assembled together, with several other Persons, in Disturbance of the publick Peace, and against the Laws of this Realm; and being required to find Sureties for their respective appearance at the next General-Sessions of the Peace, Fra. Bacon. to be holden for the said City and County, to answer the Premisses, which they refused so to do: These are therefore to will and require you, to receive and keep the said George Whitehead and Thomas Burr in the common Goal, for the City and County aforesaid, until they shall be from thence discharged by due order of Law; And hereof fail not.
Given under my Hand and Seal, the 21st day of March, Anno Dom. 1679.
Does the Recorder own this to be a true Copy, Yea or Nay?
I care not whether it be true or false; there's another Mittimus against you, &c.
Let this Mittimus be considered first: Doft thou own it to be a true Copy, or no? We have it attested.
It may be it is, what then? It may be true for ought I know, &c. [or to that effect.]
Then pray observe this Mittimus, the Tenor of it, what it contains.
1st, As to the Cause of our Commitment.
2dly, That is the Premisses which we are to answer to, and to be tryed and delivered upon.
3dly, And that according to Law, or according to due course of Law, &c.
1st, Then the Charge concerns matter of Fact, i.e. being at a Meeting. And
2dly, What such a Meeting, or how qualified, i.e. A Meeting in Disturbance of the publick Peace, &c.
These are the matters in Charge against us, which the Court ought to take Judicial Cognizance of; either to acquit us, if Clear, or to condemn us, if Guilty of any such Meeting.
Read the other Mutimus; you have a Copy doubtless.
We have a Copy of the second Warrant. But this is not to be evaded; this is the Mittimus; this contains the Cause of our Commitment, and the Charge that lies against us, &c. which the Court is bound only to take Cognizance of; for we are thereby referred to the Quarter-Sessions.
Read the second Warrant, that contains the Cause, to wit, my tendring you the Oath, &c. By taking whereof you ought to shew your Allegiance (or Obedience) to the King.
Either the Mittimus is a Legal Mittimus, or 'tis Illegal; If Legal, then let's answer to the Premisses, &c. If the Oath be insisted upon, to evade the Mittimus, that will bespeak either want of other matter against us, or else that the Mittimus or Commitment is Illegal.
Read the second Warrant, &c.
We have Exceptions against the second Warrant: If I [Page 21]read that, the Exceptions ought also to be read. Shall read them when I have read the Warrant?
Well you may read both.
Now the Court is engaged and concerned to make good the Liberty granted me, to read our Exceptions, when the Warrant is read.
The second Warrant read, which follows.
City and County of Norwich. WHereas George Whitehead and Thomas Burr were lately sent by my Warrant unto the common Goal for the City and County aforesaid, Francis Bacon. for being Seditiously assembled with some hundreds of other disloyal Persons against the publick Peace, and in contempt of the Laws and Government of this Realm. Now for that the said George Whitehead and Thomas Burr are suspitious Persons and Strangers to this City aforesaid, and being unwilling to declare that Duty, which they and every true and well affected Subject ought to bear, by Bond of Allegiance to our Gracious King, they did severally refuse to take and pronounce the Oath of Obedience to the King's Majesty, duely tendred unto them; and after, they were severally required to do the same by me. These are therefore in his Majesty's Name, to will and command you to keep the said George VVhitehead and Thomas Burr in the common Goal for the said City and County, without Bail or Mainprise, until the next General Quarter-Sessions of the Peace, to be holden for the City and County aforesaid; and hereof fail not. Given under my Hand and Seal, the 23d day of March, Anno Dom. 1679.
I hope the Recorder cannot deny the Copy to be true.
I will vindicate it by Law in any Court in England, &c. (or to that effect.)
Hear the Exceptions against this Second Warrant: I'le read them deliberately. If the Court has any thing to object against any particular, that may be read over again, after the first reading.
Read them. Go on, &c.
The Exceptions against the second Warrant, for detention of the Prisoners in the Common Goal, without Bail or Mainprise, bearing date the 23d day of March, Anno Dom. 1679.
Exception I.
First, The Prisoners being committed till Sessions, there to answer to the Premisses contained in their Mittimus: Therefore the Court ought to take Judicial Cognizance thereof (that is, of the Charge contained in the said Mittimus) for their Tryal and Discharge thereupon, by due order of Law, and not to suffer the second Warrant to be insisted upon, nor the Mittimus to be evaded.
Exception 2.
Secondly, Because that after the Command given to the Keeper to keep them in the Common Goal, until the next General Quarter-Sessions, &c. The Lawful Conclusion is wanting, viz. [Until they shall be delivered by due Course of Law] See Cook in the 2d part of his Institutes, fol. 52. concerning a Commitment by Lawful WarrantNote, that the Prisoners foreseeing, that the Recorder would insist upon the second Warrant, as the Mittimus, did therefore prepare this second Exception. The Warrant or Mittimus (faith he) containing a Lawful Cause, ought to have a Lawful Conclusion, viz. And him safely to keep until he be delivered by Law, &c. And not until the party committing doth give further Order. And this doth evidently appear by the Writs[Page 23]of Habeus Corpus, both in the Kings Bench and Common Pleas, Exchequer and Chancery.
Again, he saith, Secondly, The Mittimus ought to be (as hath been said) till he be delivered by Law. Ibid. Cook 2 part Inst fol. 53.
Again, now as the Mittimus must contain the Cause, so the Conclusion must be according to Law, viz. The Prisoner safely to keep, until he be delivered by due order of Law; and not until he that made it shall give other Order, or the like, Ibid. fol. 591, 592.
Exception 3.
The third Exception is deduced by way of inference from the second. Thirdly, Therefore the Justice had no Legal Power to give other Order or Warrant, which interposeth between his Commitment of the Prisoners, and their Delieverance by due course of Law, which is mentioned in the Warrant of Commitment; but not in this pretended Warrant for detention. The Justice, who committed the Prisoners, had no legal Jurisdiction over them, thus by himself to interpose to fasten them. They were thrust out of his hands by their Commitment, and thereby referred to the Quarter-Sessions, for their Discharge thereupon, by due Order of Law.
[Interruption on the reading the third Exception, in this Objection] viz.
If a man owe twenty men Money, the first that Arrests him lays him into Goal, but the other may lay their Actions upon him, for all that: Or if a man Robs in several places, and is laid into Goal for one Robbery, and there comes a Hue-and-Cry after him for another, shall be go free of that, because he is Arrested already?
That's not our Case; there's no parity between them: We were not committed to Goal on any such account, as upon any Action of Debt, Robbery, &c. Nor were we Chargeable with any new Matter or Crime, when the second Warrant was writ, more than when our Mittimus was writ, and we first committed to Prison. Pray let me read on; the Matter's further cleared.
[Page 24]Exception 4
Fourthly, The second Warrant is contradictory to the first, in that it admits of no Bail nor Mainprise for the Prisoners, which the first admits of in these words, viz. Being required to find Sureties for their respective Appearances at the next General Sessions. Whereas the Prisoners were no more Criminal, when the second Warrant was made, than when the first was made, being then in Hold upon their Commitment.
Exception 5.
Fifthly, The Prisoners were not Convented, nor had in Examination before the Justice, when the second Warrant was made, to answer for themselves, as they ought Judicially to have been, if he had any new Matter unbailable against them, or any matter of such High and Criminable Nature, when he made the second, which he had not, when he made the first, as to render them uncapable of Bail. Therefore his second Warrant is Illegal and Extrajudicial, and the Court is Bound to take notice of it.
[After the fifth Exception, the Recorder again Interrupted] viz.
While I have to do here, I will not suffer my self to be thus reflected upon. It is a Dishonour to the Court.
How many more have you to read?
But a very few; I shall quickly have done. You may call for any of them to be read over again, when I have done.
You may go on. Go on.
Exception 6.
Sixthly, If it be objected, That the Prisoners refused to take and pronounce the Oath of Obedience to the King, being duely required by Justice Bacon. That is an apparent Mistake. If the Warrant of their Commitment be of Credit, it shall be Evidence, in that [Page 25]it admits of Baile, as before: Which the refusal of the said Oath, being so required admits not of: But the Prisoners were not committed on that Account. And therefore the second (or Collateral) Warrant, which is of another date, and no Commitment, is grounded on a mistake in that point, and is an extrajudicial thing: And therefore not to be taken notice of, but rejected by the Court, and holden for none.
Exception 7.
Seventhly, Justice Bacon could not legally not duly require the Prisoners aforesaid to take the said Oath, according to the Tenor and plain express Words of the Statutes, provided in that case: They not being under those Circumstances and Causes, which the Law provides and limits, as precedent to one Justice, his being Authorized to require it. See 3 Jac. c. 4. and 7 Jac. c. 6. and Dalton Just. pac. fol. 94, and 95.
Upon the seventh Exception, when read, the Recorder alledged thus, viz.
If I find you under any one of those Circumstances or Causes, I might tender you it.
Observation added.1st, But he did not assign or shew any one Circumstance that the Prisoners were under to Warrant his alone tender of the Oath. However, he hereby granted, That he had no Power alone to require the said Oath, without limitation of such precedent Circumstances.
2dly, The Circumstances and Causes precedent, and prescribed by the Statute, 7 Jac. c. 6, are;
‘The Persons standing Indicted or Convicted for not coming to Church, &c. or complained of by the Minister, Petty-Constable and Church-Wardens (or any two of them) to any Justice of Peace near adjoyning to the place, where any Person complained of shall dwell, &c.’ ('Tis only in such case, that one Justice has Power to require the said Oath: His Power is apparently limitted by the Law to certain precedent Circumstances) under which Circumstances and Capacity neither the Prisoners nor the Justice stood;[Page 26]and therefore were not in statu quo, for the Oath to be legally required of them by one Justice.
Exception 8.
Eighthly, The Oath of Obedience could not be legally tendred on the 21st of March, 1679. being the Lord's day; Because that no Writ, Process, Warrant, Order, Judgment or Decree are to be served on that Day, except in cases of Treason, Fellony, or breach of the Peace (which the Case of the said Oath is none of: It is a case of it self distinct.) See the Act for the better observation of the Lord's Day, commonly called Sunday, Anno vicesimo nono Caroli secundi, 1677.
[After the eighth Exception being read.]
Now you have prepared a Knife to cut your own Throat withal by that Exception [In case of Treason, Fellony or breach of the Peace] your Meetings are against the Peace, &c. (or to that effect.)
Observation 1. That the Recorder did not deny the tender of the Oath to be process, or a proceeding in Law: Nay, we presume he could not deny it.
That our Meetings are against the publick Peace, remains to be proved upon the Premisses of our Mittimus—[prevented and interrupted, when these Words should have been added, being clearly intended for Argument in relation to the Exception.]
Observation 2. viz That the tender of the Oath of Allegiance is a case of it self distinct from the Cases of Treason, Fellony and breach of the Peace. For it cannot be Justice to excuse or acquit Traytors, Fellons, or Breakers and Violaters of the Peace, by tendring them the Oath of Allegiance, or by their taking it. (That were an easie way for Traytors and Fellons, &c. to escape the condign punishment of the Law) There's other process or proceeding in Law, more properly limitted and assigned against them. For how many Oaths would not Traytors and Fellons take! if Swearing would free them from the Judgment or condign punishment of the Law? What Oaths would not such take to save themselves?
[Page 27] Observation 3. That seeing the Recorder seem'd not to deny the tender of the Oath to be a process in Law: His Answer, i.e. That your Meetings are against the publick Peace, was besides the point. His requiring the Oath is neither the Process nor the Penalty of the Law, for the breach of the publick Peace: They are distinct Cases and Processes.
Have you any thing against the Oath of Allegiance? Or do you except against any thing contained in it?
We have nothing to except against the Declaration of Allegiance contained in it, as to the Substance thereof.
We shew our Allegiance by our Conversations; That is, by our living peaceably under the King and Government.
Do you scruple any Word (or thing) contained in the Oath? If you do, tell us what it is.
We both own and can sign the Declaration of Allegiance, in opposition to the Pope and Popery: And to those Seditious or Treasonable Practices and Positions abjured and renounced by that Oath.
Do you hold it unlawful to take an Oath in any case?
We are not commited to Prison to answer to Questions at Sessions; but to Answer to the Premisses contained in our Mittimus.
Do you not hold it lawful to tell a Lye? i.e. an Officious Lye, to prevent an eminent danger, &c. [or to that effect.]
No, by no means; that's not a true Protestant Principle, to tell or maintain an Officious Lye, so called.
Will you take the Oath, &c. If you will, hold up your Hand as a Testimony that you do take the Oath, or Swear, that shall serve, &c.
We have a Protestation or Declaration against the Pope & Popery, which was delivered to the Committee of Parliament, and thereby judged sufficient to distinguish us from Popish Recusants: We crave leave of the Court to read it.
What difference is there between a Protestation and an Oath?
It may be a Protestation or Testimony against Popery; [Page 28]yet not an Oath. I pray you, let's read our Protestation, that we may not lie under Suspition, without cause.
You may.—Read it.
The Protestation read in Court, which followeth.
A Protestation or Declaration, to distinguish Protestant Dissenters from Popish Recusants.
I A.B. do in the presence of Almighty God, solemnly profess, and in good Conscience declare, It is my real Judgment, that the Church of Rome is not the Church of Christ; nor the Pope or Bishop of Rome Christ's Vicar: And his or their Doctrines of deposing Heretical Princes, and of absolving their Subjects of their Obedience: Of Purgatory, and Prayers for the Dead: Of Indulgences, and worshipping of Images: Of adorning and praying to the Virgin Mary, and other Saints deceased: And of Transubstantiation, or changing the Elements of Bread and Wine into the Body and Blood of Christ, at, or after the Consecration thereof by any Person whatsoever, are False, Erroneous, and contrary to the Truth of God declared in the holy Scriptures. And therefore that the Communion of the said Church is Superstitious and Idolatrous.
And I do likewise sincerely testifie and declare, That I do from the bottom of my Heart, detest and abhor all Plots and Conspiracies, that are, or may be contrived against the King or Parliament, or People of this Realm, or the true Protestant Religion therein professed[Page 29]And I do hereby faithfully Promise, by God's help, to live a peaceable and sober Life, as becometh a good Christian and Protestant to do.
And all this I do acknowledge, intend, declare and subscribe, without any Equivocation or Mental Reservation; according to the true Plainness, Simplicity and Usual signification of the Words.
This was excepted by a great Committee (and entred the Journal of Parliament) in order to distinguish us from Popish Recusants, &c.
We have not a Law to except it: 'Tis not enacted or made a Law. We must proceed according to Law, &c. You seem to declare for the true Protestant Religion, &c. When you dissent from the Church of England.This renders Protestancy but in a narrow compass; as if all Dissenters were no Protestants.—I am not in that Point satisfied with your Declaration [or to that effect.]
We have no Mental Reservation in the case: We are willing and ready to sign this Declaration—[Interrupted] when about adding these Words, viz. The true Protestant Religion is wholly opposit to Popery; It stands in Protestation or Testimony against Popery; 'Tis a Negative Testimony thereof. So far as any Protestants (in the Church of England, or elsewhere) do really protest against, and sincerely disown Popery, so far are we of the same Judgment with them. But there are Protestants of several degrees; some are more refined (and more clear of Popery) than others.
Is there any Evidence against us to prove the Premisses contained in our Mittimus? Where are our Accusers?
The Premisses; what are they?
The being at an unlawful Assembly, in disturbance of the publick Peace (as is pretended against us) Let's be tryed, and either condemned or acquitted hereupon.
I was more favourable to you, than you deserved; For I could have drawn an Indictment against you at Common Law, and brought [Page 30]you to a Tryal upon it: Which being found against you, I must have fined you.
We who are in Commission for the Peace are Lex loquens, and to give the true meaning of the Law. We are not to make Laws, but to Interpret the Law. We are to punish or amerce Offenders, secundum Qualitatem & secundum qualitatem delicti, &c.
We are not at present about to justifie our selves, as to matter of Fact. We are willing to hear Evidence what any can prove against us, in relation to our Assemblies. Let's have due Process.
If the Court will agree to it, wee'l Adjourn: And I will provide an Indictment, and give order that the Witnesses shall be here, and will give it to the Grand [...]nquest: And if they find it against you, you shall be fined Forty Pound, and Imprisonment till payed, &c.
It seems the Witnesses are yet to procure. Is there any here, that can give Evidence against our Meeting, of the breach of the Peace, &c.
That's a Lye. I did not say, I would procure Witnesses: that's Scandalous.
We desire that no advantage may be taken against us for a Word. You ought not to take advantage, &c.
I intended no offence in the word Procure; I intended it not in the worst Sense (i e. as by way of Subornation) for I intended no other than according to the Recorders own Words, That Witnesses should be here (or the like) which doubtless, many present heard.
Well we refuse not to be Tryed upon the Charge in our Mittimus, touching our Meeting, &c.
You shall have the Oath put to you. And I'le tell you what danger you incur: If you refuse to take it, you are to be put out of the King's protection, your Lands and Estates forfeit to the King, and your Bodies Imprisoned during the King's pleasure, &c.
We understand what a Praemunire means, according to the Statute of Praemunire, made in the sixteenth Year of King Richard the second: Though there's no Equity, that should be brought upon us, whilst we Practice our Allegiance. Suppose we cannot for Conscience sake Swear: 'Tis but hard measure to bring us under the penalty of Praemunire, for that cause only. What Equity can there be in it? Seeing we utterly deny the Pope and[Page 31] Popery, &c. (To which we may justly add) and abhor those Treasonable Practices and Positions, which are abjured by that Oath.
Suppose we have such a scruple of Conscience, as that we cannot Swear Allegiance, whilst we both practice it, and are willing to declare it; and to sign the Declaration (or substance) of our Allegiance. Can it be equal or just to run us to a Praemunire, to forfeit our Estates, Liberties, &c. only for want of Swearing? How can that be either secundum qualitatem, or secundum qualitatem delicti (as 'tis supposed.)
You talk of Conscience. Friend, Friend, let me ask you one Question. Pray what is Conscience?
'Tis that Knowledge that God hath placed in man: 'tis a knowing together between God and our own Souls, by Virtue of the Law of God in man, whereby he knows what's Good, and what's Evil; and whereby he is taught to embrace the Good, and shun the Evil. 'Tis called, The Law of Truth, the Law of Equity, the Law of Reason, &c. Against which Law (says the Law-Book, Doctor and Student) no Law nor Custom ought to be brought, but 'tis void.
Although I asked you a Question, I did not bid you Preach upon it—But Conscience may be seared; as when men will not be reclaimed, but have their own Wills, be they never so contrary.
'Tis true; some mens Consciences become hardned and seared, through sinning, and for want of being exercised by that Law of God in them: Yet there's an Universal Law of Truth in mankind, whereby even the Wicked, and those of seared and hardned Consciences, shall finally be convicted and awakened in Torment, &c.
You must have the Oath put to you. The Court must tender you the Oath of Allegiance: Will you take it? &c.
We lie under a Charge in our Mittimus: Let's be discharged of that first: That contains the Premisses, which we are to Answer to. Let's not be Hood-winked. Are we discharged of the two Warrants that are against us, yea or no? The rest of the Court ought to know, that one thing may not confound another.
You talk Law as you talk Gospel. Here you talk a little; [Page 32]and there you talk a little: It is pity you have the benefit of the Law. You put your selves from the Protection of the Law.
The Recorder is a party against us: He's our Accuser, Prosecutor and Judge: He inveighs against us: He's determined against us: He has told his Resolution afore-hand, &c.
You offer Contempt against the King, in what you say against his Minister. The Recorder is his Minister (or to the same effect.)
No such matter: I only oppose an undue and irregular Proceedure—which is not the King's Will, &c.
Your Words tend to stir up the People here to Sedition—
We have no such design. We only plead our own Rights as English men. The Loosers must have leave to speak: Our Liberties, and Estates, and Families are concerned: Our Wives and Families suffer by our restraint, &c.
Clerk, tender him the Oath, offer him the Book.
I George Whitehead do truly and sincerely acknowledge, profess, testifie and declare in my Conscience, &c.
Forbear: We have matter of Plea, which ought to be heard first, &c.
Note, Here a great Noise was made by some present.
O Yes! Silence in the Court, &c.
We beg of the Court, that we may not be thus run upon, but duely heard upon the Process we suffer under.
Will you take the Oath? Answer; and then you shall know the pleasure of the Court.
We ought to be at some certainty, whether we are discharged of the Premisses laid against us in the two Warrants. The Recorder was even now for Indicting us at Common-Law: Now he's all in haste to put the Oath upon us. Thus he appears inconsistant with himself. He's not now lex loquens, to be sure; for the Law speaking doth not contradict it self. He's not the Mouth of the Law, in running thus unduely and abruptly upon us with the Oath, to evade the Premisses, which we were to Answer to. Are we discharged of the two Warrants, Yea or No? Let's have the plain Advice, or Sense of the Court.
It may be you may suppose you be discharged. What's the Consequence you'l infer thence?
We desire a plain Answer; We are not to be answered by Supposition, nor thence to draw Consequences now. We are not called hither to dispute upon an Hypothetical Argument. We expect a positive plain Answer, and the sense of the Court concerning our Mittimus and Warrant; Are we discharged of them, or not?
Let them be discharged of them.
You are discharged of them.
Does the Recorder say so? Does he assent to it? Let Proclamation be made of it then, that we may be set at Liberty, in the same Capacity we were in before we were first Arrested.
No, no; seeing you'l take your way, I'le take my way: You shall have the Oath first, and then your Discharge—Will you take the Oath, and then you shall be discharged? What say you to it? Read the Oath, &c.
It is a force put upon us: 'Tis very hard dealing we may not be duely heard, &c.
Are the rest of the Justices of the same Mind, that we should be thus run upon? We hope you are not all of the same Mind with the Recorder, in this Proceeding. He is engaged against us: He's resolved to make something of it, and to make us Exemplary in Suffering.
Stop his Mouth; ta [...] him [...]ay—They had not only need to have their Ha [...]s pu [...]d off, but their Mouth stopt also. This the Prisoner did not fully hear, others affirm they heard it.
Pray hear us; we have more to offer, as about this tender of the Oath, to shew how undue it is, if you'l but suffer the Law to be read, which we desire. [Hut we ought first to have had Proclamation made for our Discharge from the two Warrants.]
If we should wake Proclamation, and let you go, we should be Laught at; No, no. I see you lay upon the catch: We will not discharge you. Now we have you hear, we shall not let you go, for to send a Warrant after you, to fetch you again. Will you take the Oath, or not?
Is this intended for a first tender, or a second? We desire an Answer.
We'll tender it you, de Novo; It shall be for a first tender; and if you will not take it, you shall be committed till next Sessions, &c.
[Clerk reads the Oath.]
‘Thomas Burr, do truly and sincerely Acknowledge, Profess, Testifie and Declare in my Conscience, &c.’
We appeal to the Mayor, and the rest of the Justices. The Recorder is a Party against us; he has determined against us aforehand: I'le prove, that he is no competent Judge in our Case, if I may be heard—Interruption—Are we discharged of the two Warrants? Pray let's have fair and plain Dealing: Do not thus force upon us, 'tis unfair and undue Proceeding. Let's be discharged of the two Warrants fi [...]st, before we be put upon an Answer: We ought not to be put to our Answer, but upon due process, &c.
You are discharged from those two Mittimusses. Clerk, read their Discharge. [The Clerk reads what the Recorder had caused him to enter into the Book, to this purpose]
‘George VVhitehead and Thomas Burr are discharged of the Matters contained in their two Mittimusses. And the Oath of Allegiance, and the Testament, to Swear in open Court—at this present Sessions was severally tendred to them; and the said George VVhitehead and Thomas Burr having severally refused to take the said Oath of Allegiance, it is therefore ordered, That the said George Whitehead and Thomas Burr be committed to the Common Goal of the said City, there to remain without Bailor Mainprise, until the next Quarter-Sessions, &c.’ [or to the same effect. The Copy of Order being more fully transcribed hereafter, according to the Goalers Copy.]
The latter part is not true; we have not yet refused the Oath; we were not duely nor regularly brought upon that point, as to give a positive Answer, because of the other precedent Charges, which we were to answer to. We have yet matter of Plea about the Tender of the Oath, de Novo, in Court. We request further time to be heard upon an Adjournment (before we give our positive Answer)—We desire to know upon what Law or Statute 'tis tendred. [No Answer was given to this Question.]
You have stronger Lungs than I. I understand you had a Feast last Night, &c.—Adjourn the Court. Take them away Goaler.
Pray let's have more time to consider, and speak to this point. I entreat that I may have leave to read the Clause in the Statute, that concerns the tender of the Oath.
Note, These Endeavours of the Prisoners, to be heard, after the pretended Order was entred, was, because the Prisoners did not believe, that the Justices, or greater Number of them, did concur with the Recorders proceeding against them; but that they had more, both of Moderation and Justice in them; and that he carried things on, too much over their Heads, and all to run down and ensnare the Prisoners, to Oppress them, and continue them under Suffering.
The Court Adjourned.
Prisoner, G.W. Held by the Bar, pressing to be further heard (after the Adjournment) when the Court met again, and for the Statute to be read about the Oath (Neither whereof would be granted the Prisoners) but two of the Keepers pulled the Prisoner away.
Take notice, that we have not yet refused the Oath, being not duely nor regularly brought upon that point: but we have owned the Declaration of Allegiance, contained in it;These last words are since added, the Prisoner being hurried away that he could not then speak them out and do still freely assent to it, in Oppos [...]tion to, and Abhorrance of all those Treasonable Practices, Positions and Principles, abjured and renounced by that Oath; though we are Conscientiously afraid to Sweat it, only with respect to Christ, Prohibition, in the case of Swearing.
Note, That on the 3d day of the Moneth called May, 1680. being about five dayes after the Prisoners were th [...] proceeded against in Court, the Recorder, Francis Bacon was voted out of Place by the Common-Council, &c.
Also note, That divers of the said Recorders Reflections and hard Speeches against the Prisoners, are purposely emitted in the foregoing Account for brevity sake, and with respect to the moderate Reader, by whom we would not be thought to Over charge any Person, though he was an Adversary, therefore we have in some particulars been more sparing, than we might have been.
Here follows a Copy of the Commitment from the said Sessions.
GEorge Whitehead and Thomas Burr are discharged of the Matters contained in their Mittimus and Warrant. And the Oath of Allegiance, and the Testament to Swear upon in open Court, by order of his Majesties Justices of Peace, at this present Sessions, was tendred severally to them; and the said George Whitehead and Thomas Burr having severally refused to take the said Oath of Allegiance. It is therefore ordered, That the said George Whitehead and Thomas Burr be committed to the common Prison of the said City, there to remain without Bail or Mainprise until the next Quarter-Sessions to be holden for the City, according to the Law.
Here follows a Copy of the Prisoners Certificates, which the Recorder, Francis Bacon, would not permit to be read in Court.
THese are to Certifie all, whom it may concern, That George Whitehead of the Parish of St Buttolph Bishops-Gate, London, hath lived in the same Parish for about Ten Years last past in good Repute, and is esteemed a man of a Competent Estate, and hath fined for all Offices in the Parish, save Church-Warden, and hath [Page 37]demeaned himself Peaceably in his Conversation; and he hath never been accounted nor reputed to be Jesuit or Papist, nor any way Popishly affected. All which we Certifie, under our Hands.
- John Freeman
- Thomas Fyge
- John Russen, Deputy.
- Gilbert East
- John Osburu
- John Sumner, Constable.
- Charles Bathurst
- Thomas Dawson
- Nicholas Harding
THese are to Certifie any Person or Persons, whom it may concern, That Thomas Burr of Ware, in the County of Hartford, Maulster, hath lived and been a Trader in Malt for about Fourteen Years past; and is a man whom we judge of a good competent Estate, and of good Credit and Reputation among his Neighbours in this place, and hath never been accounted a Jesuit or Papist. All which we Certifie under our Hands.
- Giles Roe
- Henry Hart
- John Lark
- William Moakes
- John Perrot
- Henry Peach
- Thomas Johnson
- Richard Dickinson
- Rivers Dickinson
- Edmund Peast
- Isaas Hadsley.
A Copy of the next Letter, after the foregoing Proceeding in Court, delivered to the Mayor, &c.
- The Mayor,
- Justices &c.
- Aldermen
WE do acknowledge and kindly resent that Indifferency and Moderation towards us, which we beheld among you, when before you in your Court of Sessions, as also the Justice you did us, in making way for the reading our Mittimus, our Exceptions, our Declaration against Popery, and the fixing of our discharge in Court, from the matters contained in our Mittimus and Warrant: whereby we are the more encouraged to make this one small Request to you, which is, That you will please but to afford us the Liberty, to come before you in your Council-Chamber, (though it be with a Keeper) that we may shew you one material Point of Law in the Statute Book, relating to this De novo (or New) tender of the Oath, (in your Quarter-Sessions) which we now suffer under, it being the same Point that we were car [...]est to have shown you out of the Statute Book, but were foreinly prevented.
In granting us this small Request, you may happily be capable of doing your selves and us more Justice and Right, than you may at present be aware of. 'Tis not too late to reverse an Error, and embrace Truth, when made appear in any Case, not will any sincer. Mind soon the Discovery of either. 'Tis in Real Love and Good Will to you, this Proposition (by way of Request) is made for your own sakes, as well as ours. We design no Tediousness to you [...] Case is now contract into a arrow Compass: What we have to shew you is both very brief and caste to understand, 'tis directly [...]tu [...]e-Law. Out Confinement before Sessions was but One Mans Act, but now others of you are concerned. Howbeit, we may [Page 39]Reansonably (as well as Charitably) think and believe that both the forcible tender of the Oath (whilst not actually discharged and freed from our Imprisonment) and the Conclusion against us, for our detention, were rather the hasty and indiscreet Acts of one Person (carried on over your Hands) than of the whole Court or Major part thereof, and hope, that as you calmly come (in Gods sight) to the Righteous Test of Conscience and Truth, and upon better deliberation consult the Law in our Case; 'twill so appear to your Understandings. We are yet willing Charitably to think and hope the best concerning you in this weighty Concern of our Liberties, Estates, Families, and consequently our Lives, which are exposed to Jeopardy and Ruin, through our present Suffering among you. Nevertheless our Case is not desperate in the Eye of the Law. They who are appointed Ministers of equal Law and Justice ought to understand both before they pass Judgment, or inflict Punishment. As Michael Dalton puts the Commissioners of the Peace in mind, how that justice may be perverted many wayes, if they shall not Arm themselves with the Fear of God, the Love of Truth and Justice, and with the Authority and Knowledge of the Laws of this Realm, &c. Among which Causes of Pervertion, he mentions these, viz.
- I. FEAR. When fearing the Power or Countenance of another, they do not Justice; quoting Deut. 1.17.
- II. PERTURBATION of Mind, as Anger, or such like Passion; quoting James 1.20.
- III. IGNORANCE, or Want of True Ʋnderstanding what is to be done. Ignorantia mater erroris.
- IV. PRICIPITATION, or too much Rashness, as when they proceed hastily without due Examination and Consideration of the Fact, and all material Circumstances, &c. [Thus far M.D.]
We design no Personal Reflection, but only tender Information and Caution in these Passages. The thing we aim at is but the leave of a few Minutes before you, to shew you the Point of Law mentioned, which we forbear to relate in Writing to you, as not being so proper or seasonable for us to do at present, considering the Cercumstances, which we are under. We are
- George Whitehead
- Thomas Burr.
THis Provision we would further add, That if so be our Proposal of coming before you in your Council-Chamer may not be accepted, or be not thought seizable, we then desire you would please to transmit our Request to your Quarter-Sessions, yet in beeing upon Adjournment, that we may have the Liberty at your next meeting in your Court of Sessions, briefly to offer what we have to Plead in point of Law, to your serious (and more deliberate) considerations about the late tender of the Oath, de Novo, according as we desired farther time for the same purpose, when last in Sessions.
Here follows the substance of a farther Application, made by the Prisoners aforesaid, to the Mayor, Recorder, Justices and Aldermen of the City of Norwich, delivered to them the 17th day of the 3d Moneth, 1680. being the last day of the Quarter-Sessions.
THe first part relates to the Mediation of certain Persons of Note and Eminency,Whose Names are not thought meet to insert in this place. Some Magistrates of Norwich understood who they were. on the Prisoners behalf, and particularly by a Letter from London from a Person of Quality, on some Application made by some of their Friends there, unto which the Prisoners refer the Magistrates, in these words, viz.
We therefore request, that you would please to call for the said Letter, and know the Contents thereof, that if such Mediation may take effect with you, for our Enlargment, we may not put you nor our selves to trouble, upon any further Motion. Otherwise, if you be not pleased to accept thereof, so as to grant us our Enlargment, we have another Proposition to make, on this wise, viz.
[Page 41]Whereas we the Prisoners, whose Names are hereunto subscribed, do find our selves oppressed and grieved, not only by the Illegal Proceedings (as we conceive) of the late Recorder, in our Commitment and detention in Prison by two Erronious Warrants, which were reverst in Court, but also by his late Commitment from Sessions, which not only we do conceive to be illegal and contrary to the Form and Order of Law prescribed in the Statutes, but also we have the Advice and Judgment of able Counsel in the Case, averring, This last Commitment Not Good, BUT AGAINST LAW, &c.
Upon which Premisses (if you please not to allow us Remedy on the Mediation aforesaid) we do in Humility request, That you will please to call us into Court, before this Sessions be ended, and grant us the Liberty but briefly to offer our Exception in point of Law, unto your serious and deliberate Considerations, in order to afford us so much Relief and Right, as may either by apparent Law, Equity or good Conscience be allowed us.
- George Whitehead
- Thomas Burr.
ON the aforesaid 17th day of the 3d Moneth, 1680. our Friends, Mary Duncon and Mary de France of Norwich attended the Court of Mayor and Justices in their Council-Chamber, and delivered the aforesaid Application and Certificates to them, where they were read, as the Prisoners were informed.
After the Mayor and Justices came down into the Hall, our Friends abovesaid attended the Court of Sessions, and moved for the Liberty of the Prisoners (as some of the Justices had before directed) To which, others of them said, That could not be, for they were committed by Order of Sessions; which the Steward (being then Judge of the Court, in the Recorders absence) caused to be read. Mary Duncon then requested, the Prisoners might be called into Court, and heard, the new Recorder having promised her (as she affirmed immediately after she came from him) That they should be called into Court; and that if it appeared they were committed contrary[Page 42]to Law, they should be Discharged. But he being then absent, they were not called into Court.
Samuel Boulton of London being present, got leave of the Court (upon his request) to tell them, That he did suppose it was contrary to Law, to make the First Tender of the Oath in Court; and that 'twas done on purpose to Ensnare the Prisoners. Whereupon the Steward called to bring the Statute-Book, to see whether it was so or not; but in the interim (after a little Consultation) the Court was dismist on a suddain, before the Book came. So the Prisoners were detained until the next Quarter-Sessions. Whereof an Account is hereafter given, as to their Discharge.
Here follow the Copies of certain Letters of Importance, from the said Prisoners, which were sent and delivered to the Magistrates of the City of Norwich, after the aforesaid Quarter-Sessions.
To the New Recorder.
VVE having met with a Disappointment, by reason of thy absence from Session [...], hath occasioned these few Lines, whereby we acquaint thee, That we apprehending our selves wrongfully Imprisoned and Detained, by the means of the late Recorder; having also Advice of Counsel, concurring with our Apprehensions in the Case, did expect, according to thy Expressions to our Friend Mary Duncon, to have been called into the Court of Sessions this day week. Some of our Friends having had encouragment by several of the Magistrates, to request our Liberty in Court, they accordingly attended and moved on our behalf; but our being called was opposed by the Clerk. Afterwards we sent to the Steward about it, who exprest himself willing to do us any good he could,[Page 43]but seemed to blame us, that we had not sent to thee about it, and advised us so to do, he being unwilling to act without thy Concurrence; wherefore we have sent this Bearer on purpose, and Request That thou wouldst please to signifie thy Mind to the Steward, Whether or no our Suffering Case may be taken any further Notice of among you, in order to our Relief. We are hardly dealt by, and think we should not be delayed, nor slighted under a wrongfull Imprisonment. We hope our Case will be better inspected, than as yet it has been. The Magistrates willingness here, for our Relief, now depends upon thy Counsel. We desire to know your Minds in it, with as much Expedition as conveniently may be. We rest
- George Whitehead
- Thomas Burr.
This was delivered to the New Recorder of Norwich at his Country House near North-walson, by John Fedemand and Thomas Haward of Norwich.
To the Recorder and Steward of Norwich.
SEeing we have made divers motions to be heard by the Magistrates of this City, before the Sessions was ended, concerning our last Commitment, but were prevented, although we have intimated our Apprehensions of our wrongful Imprisonment and Detention, by the means of the late Recorder's severity against us. And you being the Persons, upon whose Advice the Magistrates of this City have Dependance, We do entreat you tenderly to consider us and our suffering Condition, so far as to admit us but a little gentle Discourse with you, or either of you (though it be before any of the Magistrates of this City, whom you shall think fit) in [Page 44]order to give you an Understanding of our Case, whether any Relief thereby may be afforded us or not, we leave that, but hope you may be justly Inst [...]mental for our Relief: 'Twill be no disparagement to you, to be sure, we being opprest and restrained thus far from our Families, &c. as we think (at least) contrary both to equal Law and good Conscience; And we are not willing to lie under any M [...]st [...]ke or Prejudice against any Person whatsoever, No; though it was one that hath dealt most Prejudicially with us, we are sure we mean well. However, pray now take a little opportunity to consider our suffering Case, so as we may not be slighted in this Condition. We can assure you, That the late Recorder's Proceedings against us are not well resented by certain Persons of Quality and Power (and it will be no honour to this City to detain us under this Restraint, upon the Foundation that he has prejudicially laid against us) but here we must at present be spa [...]ing; time may possibly evince more of that. We remain,
- George Whitehead
- Thomas Burr,
AFter these two last Letters were sent to the Recorder, upon the Prisoners request, for a little Discourse with him and the Steward about their Case, they were called over into the Council-Chamber (and the Keeper with them) before him, and the Steward, and Thomas Corys, &c. and there admitted to open their Case, and to enter into some Discourse about the Proceedings against them. They did not seem to vindicate the other Recorders P [...]oceedings, only some little Controversie was about the late tender of the Oath, de Novo, in Court, for which the Recorder insisted on the Words [Or any Other Person, &c. 3 Jac. c. 4.] which are farther opened hereafter, according to what the Prisoners then alledged. However, the Prisoners kindly acknowledged their Civility in giving them that Opportunity of Discourse, &c.
A few Lines to the Mayor, Court of Aldermen and Justices, on some other Considerations more particular.
VVE being enjured and hurt in several respects, by this our Confinement, for above this three Moneths past, by means of the late Recorders Prejudicial and undue Proceedings aga [...]nst us, both before and at your last Quarter-Sessions, together with your then Passiveness therein,That was about the Oath, and his last Commitment from Sessions. and all this under a wrong Suspition or Pretence of being Papists or Popish Recusants, secretly suggested against us; which being int [...]m [...]ted to some Persons of Quality & Credit at London (who have better knowledge of us) & by them, the Earl of Yarmouth being moved on our behalf, he was pleased to mediate for us by Letters, to be communicated to some of the Magistrates in this City, in which we understand he hath lately signified what Testimony he hath of our being NO PAPISTS, and therefore desires, That you would shew us all the favour the Law will allow us, (or to the same effect, as we have been informed) which cannot reasonably intend, The Rigour of the Law, muchless to be detained in Prison, contrary to Law, as we still conceive we are.
We therefore entreat you, First, to consider what favour the Law allows us as No Papists, nor Persons so reputed, as indeed we are altogether averse to Popery.
Secondly, As Persons injuriously Imprisoned, and detained under a wrong Suspition of what we really are not. We Request our Liberties; which Request we think our selves both obliged in Conscience and warranted by Law, to make unto you, as Justices of the Peace, according to the Statute made in the 4th Year of K. Henry the 7th, Cap. 12. which is worth your while to read over, and seriously to consider the tenor and purport thereof.
For the Mayor and Justices of the City of Norwich.
THe great pretence for this our strict detention in your Goal, being the late order from Sessions, we think our selves obliged for your sakes (as well as our own) to re-mind you, (as hoping you will give the Oppressed leave to offer their Complaints) That we esteem our selves injured, in that we were not suffered to be called into Court the last Day of your Quarter-Sessions, for an opportunity to have made our Exception, which we conceive we had good ground for both in Law and good Conscience; especially, since we had Promise of such an opportunity, and that if it appeared our Commitment were contrary to Law, we should be discharged: This we understand was made to one of our Friends, who (upon encouragement by some of the Justices) moved for our Liberty in Court; which not being granted then, that we might be called into Court; but being prevented of both, we are detained to our, and our Families, great prejudice in divers respects; our present restraint being also a depriving us of our Rights in the Creation, and to the impairing of our Healths. The late Order from Sessions, for this our restraint without Bail or Mainprise, was of Francis B [...]con's ordering, and we know no other Law than that to detain us so severely untill next Sessions; and no doubt you had Power to Reverse it before the Termination of the last, when the Illegality thereof had been made appear (which we endeavoured an opportunity for) as well as an Error in process may the same Term be reformed in the same Court. Wing. Body of the Common [...] Law, p. 88. But that Sessions is over, the opportunity is slipt: whose Omission was that? Not ours we sought & earnestly requested for it in real Love [Page 47]and Good Will, as charitably thinking to find so much of Humanity, Tenderness, equal Law and Right among you towards us, as not thus to delay us in Prison upon the said Order, which we are really perswaded will not redound to the Honour of your City or Court, considering our Innocency, and the Circumstances of the Person, which was the cause of it. And we cannot reasonaby suppose, that such an order should bind your Consciences from answering the Law of Christ, To do to others as you would be done by; and the Law of our Nation, Not to deny, defer or delay Justice or Right, especially to any Free-born English man; Mag. Charta cap. 29. J. Cook Inst. 4 part, fol. 182. Illegal or unjust Imprisonment, more especially where prolong'd, being accounted odious in the Eye of the Law; and that you may more directly and clearly perceive, that to detain us in persuance of Francis Bacon's Procedure and Order against us, will not redound to your Reputation and Honour, either as Civil Magistrates or Christians. Pray consider how irregularly and arbitrarily he has acted towards us in his whole Procedure.
1st, In his sending the Sheriff to apprehend and imprison us for being at the Meeting the 21st of March (so called) 1679. (as he confest in Sessions he did, as ye may remember) by which means we were turned into the Goal by the Sheriff, like Cattle into Pinfold, and their detained for some Hours, without Examination or Mittimus, other than Francis Bacon's verbal Commission: How arbitrary and Illegal was this! Ye that are Wise men, Judge what absolute Monarch could have shewn more Dominion in such a Case? Consider the Consequence of such proceedings.
We hope your Design in chusing Recorders, is for a Just and Legal end, to assist you as the King's Ministers of equal Law and Justice, and not to be as Kings and Emperors over your City, nor that any one should assume such Prerogative or Preheminence, so contrary to Law and the King's Interest.
The King hath a Prerogative in all things that are not injurious to the Subject: Wing. p. 2. but the late Recorder did assume a Prerogative or Dominion injurious in this his Proceedings: Also—
[Page 48]2dly, In his inflicting a two fold punishment for one supposed Offence, i. c. Fining and Imprisoning for being at a Meeting, contrary to that very Act against Conventicles, 22 Car. 2. which was not made to commit the Persons to Goal, but only to fine them; al [...]e [...]t our Meetings are no otherwise designed by us, than for God's Worship and Service. When he first e [...]amined and committed us, he told [...]s thus, viz. If you will neither pay your Fines, nor take the Oath of A [...]g [...]ance, I must commit you to Prison; you may chuse, whether you [...]ill pay your Fines, take the Oath, or go to Prison.
To excuse these before mentioned proceedings against us, being all on the 2 [...]st of March, 1679. which was the Lord's day, when we excepted against them, as contrary to a late Act of Parliament, for the better observat [...]on of the Lord's day, 29 Car. 2. he alledged, That our Meeting was against the Peace. And what fellows? Therefore he might first send the Sheriff to apprehend and imprison us without Mittimus, and after that Fine us, and tender us the Oath the same Day; and if we would neither pay our Fines, nor take the Oath, then commit us to Prison.
Note, That the said Act for the better observation of the Lord's day, prohibits the serving or executing any Writ, Process, Warrant, Order, Judgment or Decree, excepting in Cases of Treason, Fellony or breach of the Peace.
If in these, or any of these Cases, the requiring Persons to take the said Oath, and their taking of it will serve the turn to excuse them of such Crimes; than that Oath may be a Cure for all Diseases or Enormities against Law of what different species or kinds soever. The Justices need but require Treasonable, Fellonious fighting and quarrelsom Persons to take the Oath of Allegiance, and their taking of it shall quit them of all Pains and Penalties: But we hope you are so rati [...]nal as to understand, that legally to require the said Oath is a distinct Case or Process from the cases of Treason, Fellony, or breach of the Peace; and that there is no more reason to require the said Oath in any one of these Cases, then in all of them.
[Page 49]3thly, In his laying our Fines upon other persons, and imprisoning us for being at the said Meeting, and giving out Warrants to break open their Doors, and distrain their Goods, upon a false pretence of our Poverty, after we had plainly signified the contrary to him, both as to the competency of our Estates and known Habitations, so as he could have no reason to judge or think us unable.
But besides the Illegality hereof, pray what Justice or Consistance could there be between his Fining others because of our Poverty, and committing us to Goal because of our Non-payment thereof? He imprisons us because we do not pay our Fines; and layes our Fines upon others because we cannot pay them.
But this is not the least inconsistance in his perplexed Proceedings: He demands 20 l of each of us for Preaching; and because we did not deposit the Money, he commits us to the common Goal, upon pretence of being assembled in disturbance of the publick Peace (by a Warrant made in his own, and not in the King's Name) and then layes our Fines upon others, which was all for one and the same Meeting. And these proceeding are as reconciable, as if he had Fined us for Praying, and committed us to Goal for Fighting whilst at Prayer; But we are more Serious in our Devotion, and Innocent in our Deportment, blessed be the Lord our God.
We further intreat you to view the said Francis Bacon's proceedings against us at your Quarter-Sessions, the 28th of April, 1680. and seriously to consider, whether he did therein proceed either legally or justly with us; As,
- First, In his appearing a Party, an open Adversary, an Accuser a Villifier of us (the Prisoners) in the open Court of Sessions, telling us, that there is a Law to Hang such; and that the Church would never be at quiet, till such Fellows were Hanged; (as you may well remember) to the same effect he also told us, when he first committed us.
- Secondly, In his denying & opposing the reading of our Mittimus in open Court, contrary to all Reason, and to the mind and declared Judgment of the Mayor and other Justices upon the Bench (as you may also well remember) how imperiously did he behave himself in this?
- [Page 50] Thirdly, In his not suffering our Certificates to be read in Court, which we earnestly then and there requested, (as you also may remember) which were from certain Officers, and other credible Persons of our Neighboured, to remove the Calumnious Aspersion and Suspition of our being Jesuits or Papists, prejudicially insinuated against us.
- Fourthly, In his frequently and abruptly causing the Oath of Allegiance to be offered, or put to us, on purpose to ensnare and circumvent us, before the Process or Charge of our Commitment were determined in Court, notwithstanding our Mittimus signified, that we were then to answer to the Premisses therein contained, and also begged, that for God's sake and the King's sake (as you may remember, with our reason thereof) we might be heard in our Plea and Answer to the Premisses, upon which we were committed, before any other Process were entred upon against us.
- Fifthly, In his not suffering the Law to be read in Court, (which we earnestly begged) upon which he forced and required the said Oath of us, as he had determined aforehand, in order to run us to a Proemunire at the same Quarter-Sessions, as he threatned when we were first before him, understanding that we did fear an Oath, or to Swear in any case.
- Sixthly, In that when our Mittimus, and his Erroneous Warrant, and his first pretended tender of the Oath (by himself alone) were reverst by our being discharged in Court from the matters contained in them, he would not suffer us to be actually freed of our Imprisonment; but in persuance of his premeditated Design forced a tender of the Oath, de novo (as his Words were) and an order immediately to be entred for our Commitment to Goal without Bail or Mainprize, untill the next Quarter-Sessions, without allowing us any further time for Consideration or Answer, as we desired.
- Seventhly, His precipitancy and rashness towards us, was such therein, that the rest of the Justices, doubtless, could not take so much time and deliberation, as to consider of these his Proceedings, before he concluded the said order of Commitment, wherein they might very well, and but justly, have given him a Check, & put a stop to his swift and furious Motion, for a more general and serious consideration of the Case among them, and not have suffered him to [Page 51]make such a suddain Conclusion against us, as pro Curiam, or by their Authority (for Justices ought to see with their own Eyes, and be sure their Judgment is Just before they give their Judgment, or assent in any Judicial case) seeing they had such fair Warning also in our publickly desiring to know, If you were all of a mind, or agreed against us, as to that severe Commitment, charitably hoping (as we do still) that you were not; but no Answer could we have in that Case: The Recorder was in such haste for that Conclusion against us, and the Courts Adjournment, and to have the Goaler to take away the Prisoners; He would have you to understand, he wanted his Dinner, upbraiding us (the Prisoners) with an idle Story of our being at a Feast the Night before.
- Eighthly, Besides, his de novo, tender of the Oath to us, the Prisoners, in Sessions appeared neither Legal nor Formal, according to the form of Statute 3 Jac. Cap. 4. which intends Popish Recusants (as appears plainly by the Title and Preamble thereof) which we the said Prisoners were not (nor are we Papists at all) but it was also against the Form and Course of procedure, both of the Statute 3 Jac. 4. (allowed even to Papish Recusants Convict) and that also of the 7 Jac. Cap. 6. for a first tender of the Oath, to be made out of Court or Quarter-Sessions, and a Commitment of the party refusing, and the second tender in the open Assize or Quarter-Sessions, in such manner and on such precedent Causes as the Law directs, and wherein we were unconcerned.
And moreover, neither of these Statutes of King James do warrant any such order for Commitment of Persons to Goal from one Quarter-Sessions to another, without Bail or Mainprize, as is the late order of our Commitment. Pray see what Council saith in relation thereunto, Viz.
1st, ‘I conceive the third Warrant is not good in the Commitment. For as 'tis true, that Act says, The Offenders shall incur a Praemunire; yet it doth not in the least give them any Power to commit the Person, and therefore, & for that its without Bailor Mainprize, and to a certain time, and not leaving it to the Law. I conceive its against Law, and will be remedied, &c.’
2dly, He further saith, ‘By the Statute of 3 Jac 4. The party that is to take the Oath, is to be one that is Convicted or Indicted for Recusancy, or not taking the Sacrament twice in the Year [Page 52]past; and the Parties to tender it, are either the Bishop or two Justices of the Peace, whereof one of the Quorum, and upon refusal, they may commit without Bail or Mainprize, untill next Assize or Sessions, where it may be again tendered. By the Statute 7 Jac. 6. any one Justice may tender the Oath to one that is presented, Indicted or Convicted for not coming to Church, or receiving the Sacrament, according to Law; or if the Minister, Petty-Constable and Church-Wardens, or any two of them, shall complain to any Justice of Peace near where the Party dwell [...], and the Justice shall find Cause of Suspition, then he may tender and proceed as above. But all this I conceive with clearness, to be meant and intended Popish Recusants. But admitting it otherwise, I conceive as this Fact is now put, the Proceedings are not warrantable by the above-said Laws, nor any other; for here is no such Presentment, Conviction or Indictment, as the Law require [...], to warrant either the first or second tender of the Oath, and there [...]ore I conceive the Parties grieved may be relieved, &c.’ Thus far truly transscribed out of Councillor Smith's Advice, under his own Hand.
The Premisses considered, we really think it had been your Best, your Clearest and Wisest way to have manifested your Dissent (as we gave caution at first) from Francis Bacons's precipitant irregular dealing with us about the Oath, and his illegal Commitment from Sessions, which is entred for protect of Authority, with the Title pro Curiam; and therefore our strict Confinement thereby as your Act, howbeit 'tis not subscribed by any of you: Wherefore we yet in Love and Good Will to you, both for your own inward Peace, and outward Reputations, as well as our own Rights, request our Liberty, we being wronged, hurt and grieved in divers respects by the said Proceedings of your late Recorder; whereof we do once more make our Complaint to you for Relief, according as we think our selves obliged in Conscience, and directed also by Law; Pray view the Statute of the 4 Hen. 7. c. 12. for 'tis a good one, 'tis worth your reading: Judge Cook cites it,See his Instit. 4 part. fol. 170. and insists upon it as a necessary Caveat to all Justices of Peace: ‘For that by the said Statute Provision is made for any Subject that is hurt or grieved in any thing, that remedy may not be delayed [Page 53]or deferred, being directed to make complaint to the Justice or Justices, and to desire Remedy; and if he have no Remedy, to shew his Complaint to the Justices of Assize, if it be nigh the time of their coming, but if it be too long afore their coming, then the grieved to come to the King's Highness, or his Chancellor, and shew his Grief: Whereupon the King shall send for the said Justice, to know the Cause, why his said Subjects be not eased? And if he find any of them in default in these Premisses, he shall do to him so offending to be put out of Commission, &c.’
And now as we can in good Conscience say, we are Persons that refuse not to Swear in favour to any Principles of Disloyalty or Rebellion Thus much in relation to the Declaration of Allegiance contained in the Oath of Obedience, we do comprehensively and sincerely propose and offer, viz.
This Declaration (in the sight of him who searches all Hearts) we do really assent to and own, and (through his gracious Assistance) hope ever to be found in the practice of that Fidelity and Innocency towards the King (whom God preserve) that become true Protestant Subjects and peaceable-minded Christians, desiring only to enjoy the Liberty of the Peaceable and Inoffensive Exercise of our tender Consciences towards our Lord Jesus Christ, in his Worship and Service; That he may direct you in Righteousness, and bless and preserve you and yours, is our Prayer also.
To the Recorder and Steward of Norwich. The account of the Prisoners Case, more comprehensively stated.
VVE desire you would take no Exception or Offence at our late request for our Liberties: for we design none towards you, or any other of the Magistrates, being unwilling to disobliege any Person that hath shewn Civility to us in any kind, as we acknowledge you have, in admitting us some discourse with you. One reason of our said Request was, because the other Justices lately gave consent to our enlargement: If the Recorder would consent or advise thereto (as the Messenger told us.) We still really apprehending our selves unduly proceeded with, and wrongfully detained, by the late Recorder's means, both in regard of our own Innocency, and of the Injury and Hurt we have divers wayes sustained by this our Confinement for near four Moneths past, to the impairing our Healths, afflicting our Families, and detriment to our Concerns; And not being wholly ignorant in point of Law, how unwarrantable the procedure is against us from first to last, being also confirmed in our weak Apprehensions therein by Persons learned in the Laws; as Council hath lately given it under Hand, That indeed, its an irregular proceeding throughout. And that the late Commitment by which we are detained is not good, but against Law: And therefore its being given or pleaded as an Order of, Sessions, or as pro Curiam cannot rationally argue it to be an indispensible Law; you know better in Law and Logick doubtless. These things considered, we did think our selves in Conscience obliged and concerned, as English men, with respect to our Birthrights to request our en [...]argement of the Justices of this City: Howbeit we charitably hope, That right is intended us, when you are in Statu quo, i.e. at next Sessions; which is the most (as we can rationally suppose) can be alledged for our detention in the [Page 55]mean time by the said Order; and according to your Advice, we have been, and intend to be patient till your Quarter-Sessions; seeing that before 'tis not thought Regular to discharge us; so that then we hope no further occasion will be sought to prolong us in Prison: But that as prudent men you'l better consider our Right, and your own Reputions. We cannot but remember how little care of due method and regularity Francis Bacon had in getting us into Prison, considering how much there seems to be now for our Discharge.
- 1st, We were apprehended, put in Prison, and detained for some Hours upon his verbal Order, without any Examination or Mittimus (be sent the Sheriff to do it.)
- 2dly, Then we were had before him, and Fined on the account of the Meeting.
- 3dly, Then because we did not deposit the Fines, he committed us to Goal for the same Meeting, by a Warrant only in his own, and not in the King's Name.
- 4thly, Then he laid our Fines upon others, upon a false and groundless pretence of our Poverty: So he awarded two Punishments for one supposed Offence, i.e. Imprisonment and Fines, c [...]ntrary to the Act in that case, 22 Car. 2. which intends not Imprisonment. [Then observe his contradiction in his Warrant.]
- 5thly, The Warrant of our Commitment till the Quarter-Sessions granted us Bailable.
- 6thly, But several dayes after he interposed with another Warrant, which he sent to the Goaler, to detain us without Bail or Mainprize till Sessions, when he had no new matter against us.
- 7thly, By his first Warrant we were referred to the Quarter Sessions, to Answer to the Premisses contained therein, and to be delivered by due order of Law.
- 8thly, By his second Warrant he put other Premisses upon us, to answer to at Sessions about his alone requiring the Oath[Page 56]of Allegiance of us, which he could not warrant by the Law.
- 9thly, At Sessions he would not suffer our Mittimus to be read, till over-powered by the rest of the Justices.
- 10thly, He appeared a Party and open Adversay against us, telling us, there is a Law to Hang such Fellows, &c.
- 11thly He would not suffer our Certificates to be read in Court, as we earnestly requested, being from certain Officers of Note, and other Credible Per [...]s of our Neighbourhood, to remove the unjust Aspersion and Suspition of our being Jesuits or Papists prejudicially insinuated against us.By the Informers and himself.
- 12thly, He would not suffer the Law to be read in Court, as we requested; upon which he then required the Oath de Novo.
We must confess, That as to the late Commitment, we have not understood that you have undertaken to justifie it; We are perswaded you are more ingenious and wiser men: Only for the tender of the Oath de Novo in Sessions by Francis Bacon, the words [Or any other Person whatsoever, 3 Jac. 4.] were alledged; although we cannot reasonably understand, that any other Person whatsoever in Court should be more severely dealt withal then the Popish Recusant under prosecution, so as to be run to a Praemunire for once refusal upon a surprizal in Court; when as the method prescribed for the Popish Recusant, is a first Tender out of Court, and a Commitment for refusal; and a second in Court, and refusal again, before Praemunire; see what Council further saith in the case, viz. touching the Sessions Justices tendring the Oath—as it follows that of a first tendring, I did mean and did intend a second tendring; and that must be to a Person under such Circumstances, as in my latter Paper, and in this Letter, &c. [according to that of 7 Jac. 4.] I know the Words [or any other Person] in 3 Jac. 4. have in these late times been Construed generally; but certainly it is not within the meaning of that Law, which is truly and only extensive to Popish Recusants. About the Offenders incurring a Praemunire; that must be[Page 57]a tender of the Oath at the Sessions, according to that Law, which must be a second Tender, as above, i.e. after a first tender of the Oath out of Court, upon which the party refusing is committed to the common Goal, (according to his other Paper) on the 3 Jac. 4. and 7 Jac. 6. And M. Dalton plainly expresseth the same sense of the Law in the Case under the Title Recusants. Dalt. Inst. pac. fol. 94, 95.
But Friends, Pray take it not amiss, if we do a little further reason in our own case, we being the Sufferers and Loosers: If an order of Session, (be it right or wrong) cannot be reversed or dispensed withal out in Sessions; Then we may co [...]clude we have suffered wrong, in not being admitted a hearing the last day of the Sessions (as was before granted, if not promised, and as we earnestly desired, and our Friends moved for it in Court) to have made our exception, aga [...]nst the late Recorder's irregular Proceedings, and his said Order, whereby we are detained, we having matter against both: [...]o that the same Sessions (upon a further discovery) had Power as well to have reversed the Order, or discharged us, as an Error in process may the same Term be reformed in the same Court.
And further, If a Person committed to Goal by the Justices, with these Words in the Mittimus, Scil. [without Bail or Mainprize] W [...]ere the Prisoner is bailable by Law, may be let out upon Ban by other Justices, which we suppose is not to be denyed, Da [...]t. fol. 280. Then by the same reason Persons illegally committed at Quarter-Session may be discharged before next Sessions: For such order is no otherwise in force, then 'tis according to Law, and not because the Justices made it. And none ought to be wrongfully detained or delayed in Prison, any more then wrongful [...]y or fa [...]sly Imprisoned. Also, for two or three Justices within their Power and Commission, to reverse a wrong Commitment, or Erroneous Process (especially where they might have the consent of the rest, as you might in our case) is but to make void that which in it self is void in Law, and to be holden for None. To be sure Magna Charta, the Petition of right, and the common Law or Reason of the Land, with many ancient and good Laws, (wherein the Liberty and Property of English men are concerned) strictly prohibiting illegal Imprisonment, denying or delaying Justice,[Page 58]&c. These will out Ballance the circumstance of any Order or Warrant n [...]t self unwarrantable.
The most that can be charged against us, as to matter of Fact, (since we were Recti incuria, by being discharged from the matters contained in our Mittimus and Warrant) is our not Swearing Allegiance. We were no Offenders, till a Trap was laid to make us such. by Francis Bacon, in his Abruptly surprizing us with that Oath, to run us to a Praemunire (a he had threatned us aforehand) whereas the Law was never intended to ensnare and entrap Men. And God knows our not Swearing, is not for any the least favour to those seditious and treasonable Practices, Principles and Positions abjured and renounced by that Oath, for they are an Abhorrence to us. For if we were so Unnatural and Perfidious, as to reserve any such wicked Principles, we might as casily equivocally swallow that or any other Oath, for our own Interests: But let such Collusion and Fallacy be forever far from us: 'Tis only for fear of offending our Lord and Master Christ Jesus, as in all other cases. For we your Prisoners never took an Oath in our Lives; we dare not Swear in any case, because of Christ's and his Apostles universal Prohibition (in that case) as we understand it; and many of the Primitive Christians and Martyrs, even Protestant Martyrs were of the same mind. We freely and publickly [...]ss [...]nted to the Declaration and Promise of Allegiance contained in the Oath, and hope ever to be found in the Practice thereof; only we are under a Conscientious restraint not to Swear it. We are no Papists, nor in the least Popishly affected, but w [...]olly averse to Popery, as is well known to many: What's then wanting on our parts in this case? Is it not only in that we Swear not to that which we profess and practice? Pray then have so much Charity, Humanity and good Nature towards us, as not to think so hardly of us for our Conscientious perswasion, as if we justly demerited any such severe Penalty, a the Judgment of a Praemunire, to be put off the Kings protection. &c. next to the punishment of Traytors, when we bear no ill will to the King; we have not [...]ing but Love and good Will to the King and his People. Surely that Severity cannot in Reason or Equity be adjudged secundum Qualitatem & quantitatem delicts supposed in our case, if due measures be taken, according to Equity and the Law of God in the Conscience; which as the Learned[Page 59]conclude, admits not in all cases of taking all that the Words of the Law give, for that were sometimes to do against the Law. To follow the Words of the Law (saith Doctor and Student) were in some cases both against Justice and the Common-Wealth. Wherefore [...]n some cases it is necessary to leave the Words of the Law, and to [...]ollow that which Reason and Justice requires (as it is asserted, D [...]ct. and Stud. pag. 27.) Every man ought to have a due recourse and rega [...]d unto thi [...] inward Law of Reason and Equity in his Actions; for which all a [...]e accountable to him, whose Eyes are upon all the wayes of the Sons of Men.
If we be questioned, why we did not procure a Writ of Habeas Corpus before, or at first? We Answer, We were not willing, nor advised to do that, because we did not despair to have Justice done us among you here, (nor do we yet) which we really reckon more Honourable for this City, than to delay us under a wronful Imprisonment.
And now as praecipitatio & morosa cunctatio, i.e. Too much rashness, casting men down Head-long, and Froward delay, are accounted two great Adversaries to the due Execution of Law and Justice; and we really apprehend our selves injured by the first, (especially through Francis Bacon's precipitant procedure) We desire that none in Authority in this City may be concerned in the last towards us, to the prolonging us under this restraint, (so far remote from our Families and Concern,) to the injuring of their own Consciences, as to their inward Peace, and our further Oppression and Grievance.
Moreover, being sensible of a divine Hand of Providence in permitting our suffering in this place, as also that our Religious cause should lose nothing by our Imprisonment, as we told Francis Bacon at first; we have been the more Armed with Patience and clearness of Spirit (in Love and Good Will) towards the Magistrates of this City: Also, our tenderness and respect to them has been some stop to us hitherto, from presenting our Grievance [...]as a Formal case) to the KingThough we suppose he had heard by others of it. and Council, which we really intended by way of Complaint, if the late Recorder had continued in place, seeing him so much bent against us; and if the Justices would have been swayed by him, as that we could[Page 60]not have found Relief from them, after Application made to them: And then (from so little Converse and Solicitation as Ii.e. G.W. have been concerned in at Court) I could easily presuppose how the Irregular and Arbitrary proceedings of Francis Baco [...] (and the others Omission) apparently repugnant to the Interest of both King and People would have been resented, and what Reflection it would have procured: Which method we find advisable and warranted for any Subject that is [...]u [...]t [...]r grieved in any thing, that Remedy may not be delayed; as 'tis very plain in the Stature, 4 Hen. 7. cap. 12. which Judge Cook insists upon as a necessary Caveat to all Justices of Peace; See his Institutes 4 part, fol. 170. ‘The Party grieved being directed to make complaint to the Justice or Justices, and to cesire Remedy; and if he have no Remedy, to shew his Complaint to the Justices of Assize, if it be nigh the time of their coming; but if it be too long before their coming, then the Grieved to come to the King's Highness, or his Chancellor, to shew his Grief: Whereupon the King shall send for the said Justice to know the cause why his said Subjects be not cased: And if he find any of them in default in these Pr [...]misses, he shall do to him [...]o offending, to be put out of the Commission, &c.’ 'Tis true, we have intelligent Friends at London, and that some of them understanding how hardly and wrongfully we have been dealt withal, have used some Solicitation on our behalf to some Persons of Quality; though we have not as yet given any direction, for a formal Complaint to the King. (upon our case) And what Interest hath already been sought or p [...]o [...]ured for us, was never intended to interier with the Law, or Invalidate the due course of it, (because they knew we had it hot) nor to set up Prerogative above, or in opposition to Law and Justice: Though we must needs assent, that the King hath a Prerogative in all things that are not injurious to the Subject, and Fower to disable such subordinate Ministers, as do injure any of his Subjects by the undue er Male. Admimstration of Law. The Earl of Yarmouth (to whose kindness we are much obliged) hath been pleased to mediate on our behalf by Letters, desiring that all the Favour the Law will allow us, may be shewn us, (as having received sufficient Testimony concerning our Reputation) as being no Papists, in order to remove that suspition pretended [Page 61]to the contrary, to render us Obnoxious. And we hope he will be of so much Credit and Repute with you, as neither to expose us to the Severity of the Law, for our Conscientiously fearing to Swear, nor yet to prolong us under restraint upon any such Infamous or Causeless suspicion of what we really are not, prejudicially insinnuated1st, By the Informers. 2dly By Francis Bacon. by such Questions as the late Recorder put to us. As, First, Are you not in Orders from Rome? or have you not Orders from thence? Will you take the Oath of Allegiance, to distinguish your selves? &c. Secondly, Do you not hold it lawful to Lye, or to tell an officious Lye in some Cases? Thirdly, It might be, you might make your Certificate your selves in Prison. With such like perverse Insinuations before and at Sessions, to render us Obnoxious and Odious, and to cover his Erroneous and Arbitrary proceedings. God preserve and direct you and us.
For proof of matter of Fact in charge, that it may plainly appear the said Francis Bacon, when Recorder, awarded two kinds of Punishments, viz. Imprisonment and Fines, for one pretended Offence: Let the following Ci [...]ation (being a Copy of one of his Warrants for leavying the Fines) be compared with his Warrant of Commitment before cited, both which relates to the said Meeting, he [...]d the 21st day of March (so called) 1679.
FOrasmuch as Thomas Haward of the Parish of St Peters Promountergate in Norwich aforesaid, Worstead Weaver, doth stand lawfully Convicted before me Francis Bacon Esquire, Justice of Peace for the City and County aforesaid, for being present with divers other Persons at a Conventicle, holden upon Sunday the One & Twentieth day of March last past, in the House of John Defrance, in the Parish of St Gregory in Norwich aforesaid, School-Mas [...]er, under colour or pretence of the Exercise of Religion, in other manner than according to the Lyturgy and Practice of the Church of England, and against the Statute made in the Two and Twentieth Year of our present King's Reign, to prevent and suppress Seditious Convent [...]cles; Fr. Bacon. for which he the said Thomas Haward, is fined by me the said Francis Bacon, for his second Offence ten Shillings, according to the said Statute. And whereas George Whitehead of Hounditch in London, Grocer, and Thomas Burr of Ware in Hartfordshire, Manlster, do also stand severally Convicted before me the said Francis Bacon, for taking upon themselves severally to teach in the said Conventicle, whereby they have severally forfeited by the said Act[Page 63]for this their first Offence Twenty Pounds a piece. Now for that I the said Fran is Bacon, [...]o in my Judgment think the said George W [...]tehead and Thoma Burr unable to pay their res [...]ective Forf [...]itures; These are therefore to Authorize you, and in the King's Ma [...]sties Name to require you, forthwith to go to the dwelling House of the said Thomas Haward, and demand the sum of ten Shillings for his said second Offence; and ten Pounds being the Moyety of twenty Founds of the said George Whiteheads Forfeiture, and charged upon him, by reason of the said George Whiteheads Poverty: And if the said Thomas Haward shall refuse to pa [...] the saeme, or deny, upon your demand, to open his Doors for the Execution of this Warrant, then to break them open and enter into his House, and leavy the said sum of ten Pounds and ten Sh [...]ings, by distress and sale of the Goods and Chattels of the said Thomas Haward, and the Moneys so leavied deliver and [...]ay unto me, the said Francis Bacon, to be by me distributed according to the said Statute; and for your so doing, this shall be your Warrant; and therefore in the diligent Execution hereof fasl not at your Peril,
Given under my Hand and Seal the first day of April, Anno Dom. 1680.
Exceptions against the late Recorder's requiring the Oath of Allegiance of George Whitehead and Thomas Burr, Prisoners, both when first committed, and in Court, and his late Commitment from Sessions.
1st, AS to the late Recorder's pretended tender of the Oath of Allegiance to the said Prisoners, before their first Commitment, the Law did not give him Power thereunto; they not being [Page 64]under those precedent Causes and Circumstances prescribed in the Statute in that case,7 Jac. c. 6. Dalt. fol. 94, 95 that is as standing Indicted, or Convicted, or complained of by the respective Officers of their Ne [...]ghbourhood (as therein mentioned) nor was he any such J [...]stice o [...] Peace near a joyn [...]ng to the places of the said Prisoners dwellings (as the Law also directeth [...] but on the contrary, the P [...]isoners N [...]ighbours both, certain Officers and other Credible Persons have g [...]ven Certificates and Testimony on their behalf, that they have never been accounted nor reputed Jesuits nor Papists, nor Popishly affected.
2dly, His first requiring the Oath of the said Prisoners being made void, and reverst by the late Order of Sessions, discharging the Prisoners of the matters contained in their Mittimus and Warrant, is thereby made no tender, being one of those matters contained in the said Warrant, whereof the Prisoners are discharged.
3dly, His putting the said Oath De Novo (that is for a first tender) in the Q [...]arter-Session, to the said Prisoners appears Contra sormam Statuti, aga [...]nst the form of the Statute, and order of Law prescribed and limitted, both in the 3 Jac. 4. (even in Relation to Popish Recusants) and 7 Jac. 6. more general, whereby the first tender of the said Oath is not directed to be made in one Quarter-Sessions, and the second in another; but contrariwise, the fi [...]st tender out of Sessions, and a Commitment of the Persons refusing to Goal, until the next Assize or general Quarter-Sessions, where the said Oath shall be again required, which [again] relates to the second tender in open Assize or Sessions, after the first out of Sessions; see 3 Jac. 4. to which agrees the Statute of the 7 Jac. 6. in relation to the first tender being made out of Sessions, Dalt. fol. 77. and fol. 209. and the second in Sessions, in these Words (viz) Where the said Oath shall be again in the said open Sessions required, &c.
Which [again] likewise follows the Commitment of the party for refusing, on the first tender made out of Sessions as the Law directs.
[Page 65]4thly, Also his ordering the said Prisoners to be committed from Sessions to the common Goal, there to remain till next Quarter-Sessions (for not accepting his De Novo tender in Sessions) appears Illegal, and contrary to the form of the Statutes before-mentioned, and course of proceeding thereby prescribed and limitted; See the Judgment of Councili.e. M. Smith. in that case; also concerning the third Warrant (which is that from Sessions) in these Words (viz.)
5thly, The Statute of the 3 Jac. 4. Entituled, An Act for the discovering and repressing of Popish Recusants. Upon which that of the 7 Jac. 6. is grounded, as also the penalty of Praemunire mentioned in the 16 of R. 2. appears to be made, and only intended against Popish Recusants, and such Agents as were Enemies to the King, his Crown and Regalty (which the said Prisoners are not.)
- 1. From the Preamble concerning the Powder-Plot.
- 2. From the Nature of the Oath, and those Treasonable Practices and Principles thereby renounced and abjured.
- 3. From the Statute of Praemunire in the 16 R. 2.Entituled, Praemunire for purchasing Bulls from Rome.and the Penalty thereof being made against those Agents, that did procure Sentences of Excommunication and Bulls, Instruments, &c. from Rome against the King, which touched the King, his Crown and Regalty.16. R. 2. c. 5.
Of Praemunire.
Judge Cook Instit. 3 part fol. 126. ‘The greatness of these Punishments do shew the Greatness of the Offence.’
[Page 66] ‘It is to be observed that the Statute of 16 R. 2. is strictly Pen'd against Offenders, &c.’
Observe, The Prisoners have to plead that they are no such Offenders nor justly chargeable with any such Offence against the King, his Crown or Regalty, as is mentioned in the 16 R. 2. c. 5.
The Exceptions against the De Novo tender of the Oath, argued.
IT being a Maxim in Law, that the Penalty ought not to exceed the Offence, but to be secundum Qualitatem & Quantitatem delicti: Therefore to punish Innocent Persons with the penalty of Praemunire (for not taking the Oath, only upon a Principle of Conscience, because they are afraid to Swear in any case, and not upon any Principles of Disloyalty) equally with them whom the Law concludes Disloyal and Treasonable in their Principles at least, (if not actually such) and upon no other account can reasonably be supposed to refuse the said Oath of Allegiance: This appears very unjust, and neither secundum qualitatem, nor secundum quantitatem delecti, supposed.
[The Case further argued and illustrated.]
'Tis evident, that the Penalty of Praemunire was intended, by the Law, for Persons guilty, either of Treasonable and Seditious Practices or Principles against the King and Government, tending to the Subversion thereof, as appears by the intent of the Law: 'Tis presum'd, they are at least such Inhaerent Traytors by disloyal and perfidious Principles, as that they are prepared and ready to be actually such, as appears by the Preamble of the 3 Jac. 4.
1st, By the Statute of 16 R. 2. cap. 5. Praemunire for procuring Bulls, sentences of Excommunication, &c. from Rome against the King, his Crown and Regalty.
2dly, By the Statute of 5 Eliz. cap. 1. Praemunire for holding with, extolling, setting forth, maintaining or defending the Authority, Jurisdiction or Power of the Bishop or See of Rome, by Writing, Cyphering, Printing, Preaching, Deed or Act, Advisedly and Wittingly, &c.
[Page 67]3dly, By the Statute of 13 Car. 2. cap. 1. Entituled, For his Majesties Person and Government against Treasonable and Seditious Practices. Wherein Praemunire is for Maliciously and Advisedly, by Writing, Printing, Preaching, or other Speaking, &c. declare or affirm, that the Parliament begun at Westminster, November 3. Anno 1640. is not yet dissolved, or endeavouring a change of Government, &c. [All which are deemed by Law matters of Fact, Seditious and Treasonable, to which the Penalty of Praemunire is sutably prepared.]
4thly, By the Title and Preamble of the Statute of the 3d of King James, chap. 4. [being an Act for the discovering and repressing of Popish Recusants.] Its evident that,
- 1st, Praemunire was intended by the Law-makers, for such Persons as were Popish Recusants, and infected by the Wicked and Devilish Counsel of Jesuits, Seminaries, &c.
- 2dly, And so far perverted in the point of their Loyalties and due Allegiance, as that they were ready to entertain and execute any Treasonable Practices, instancing that Barbarous and Horrible attempt of the Gun-Powder Plot.
- 3dly, And for divers Persons Popishly affected, who to cover and hide their false Hearts, and to attend the opportunity to execute their Mischievous Designs, repair sometimes to Church to escape the Penalty of the Laws, &c.
Which parts of the Preamble duly considered, two things are Naturally deducible to render the Penalty of Praemunire sutable to the Offence (as all Penalties of Laws ought to be.)
- 1st, That the Law looks upon them to be Inherently Traytors, or Traytors in Principle, and thereby prepared for Treasonable Practices, who justly demerit that Penalty.
- 2dly, That the Law-makers could intend or suppose the Penalty justly due to no other Persons, than such as would refuse the Oath of Obedience, with respect to such Principles of Disloyalty tending to Rebellion and Treason, as were secretly reserved in their false Hearts, according to the Preamble of the said Act, 3 Jac. cap. 4.
That these Words in the 3d of K. James, cap. 4. viz. [Or any[Page 68]other Person whatsoever, &c. shall refuse to take the said Oath, being tendred unto him or her by the Justices of Assize, &c. shall incur the danger and penalty of Praemunire] cannot rationally be so largely construed and urged, as for their making a first tender thereof in the Court of Sessions to any Person whatsoever, standing accidentally in Court without any precedent and just cause of notorious Evidence against them, or Conviction of being Popish-Recusants, &c. for these Reasons.
1st, Because some Persons in Court, who are real Protestants, may Conscientiously scruple to Swear, or take any Oath upon the same Principle of Christ's Doctrine, Matth. 5. and James 5. upon which many Primitive Christians and Martyrs (even Protestant Martyrs) refused to take an Oath in any case; and not from any Principles of Disloyalty and Rebellion, which the Oath of Allegiance was provided against.
2dly, Because the Words as construed, vary from the Order and Course of proceeding, prescribed and allowed even unto Popish Recusants, i.e. for a first tender to be made out of Court, and a second in Court, before a Praemunire for refusal; Therefore it must intend Any other Person whatsoever being a Popish Recusant convict. It would be very unequal and unreasonable to Praemunire a Protestant for once Refusal in Court, upon a surprisal by a suddain tender, and allow a Popish Recusant so much order of proceeding and deliberation as a first Tender out of Sessions, and a second in Sessions (and a refusal upon each) before a Praemunire; howbeit Women covert are exempted from Praemunire.
☞ 3dly, The Words [Or any other Person whatsoever] are left out in the 7 Jac. cap. 6. in the recital of the same Clause, relating to the tender of the Oath in the Assize or general Quarter-Sessions; there must needs be some cause for the leaving out these Words in the same clause: And the latter Act being in the same case more gentle in this Point, supposes the former too severe, and therefore the Words are left out: For if the first had been without Fault, what need of a second?
And its apparent, that in the 7 Jac. c. 6. the first tender of the Oath (by the Justices) is made out of Sessions, and the second in Sessions, and a Refusal upon both, before the Judgment of Praemunire.
[Page 69] Observation, The Commission of the Peace stood over-burthen'd with divers Statutes; Some whereof, (saith Chief Justice Cook)Instit. 4. part. fol. 171. are stust with many vain and unnecessary Repetitions, and many other Corruptions crept into it by mistaking of Clerks, &c. Divers Statutes have been repealed, and divers have expired, &c. He hereupon cautions thus]
‘It is a good Rule therefore for all Judges and Justices whatsoever, that have Jurisdiction by any Statute, which at the first was Temporary, or for a time, to consider well, before they give Judgment; Whether that Statute hath been continued or made perpetual? whether it be not repealed or altered by any latter Statute: Erudimini, qui judicatis terram.’ See 2 part Instit. 22 H. 8. c. 4. The Exposition upon the Statute of 22 H. 8. c. 5.
4thly, Query? But how well do they consider before they give Judgment? If they'l pick up these two or three Words out of one Statute, which are after left out in another to warrant a first tender of the Oath in Sessions, to any other Person whatsoever (though he be a peaceable Protestant) and for once refusal to run him to a Praemunire. Here they take no notice of the alteration b [...]fore they give Judgment; but such Protestants must be more hardly dealt withal than the Papists.
5thly, If any other Person whatsoever (besides the Popish Recusant under Prosecution in Court) may be run to the Judgment and Penalty of a Praemunire for once refusing of the Oath, being surprized with a first tender thereof in Court, then that any other Person whatsoever may be dealt more severely with than Popish Recusants; for they may have time, deliberation and the course of Law for a first tender out of Court, and a second in Court before Judgment: But any other Person whatsoever, upon a surprizal by a first tender in Court, and refusal, doth presently incur Judgment: This Interpretation and procedure the Law-makers could never intend with the least colour of Equity or Reason.
6thly, It cannot rationally be granted, that the Law in the Reason and Equity of it will bear out the Justices, not only in requiring the said Oath at their Discretions of any Person whatsoever present in Court, but also to give Judgment of Praemunire for once [Page 70]refusal; that cannot be the mind or intention of the Law-makers; for that were accidentally, and upon a surprizal to punish any other Persons more suddainly and severely than those Popish Recusants who are under Prosecution, according to the order of procedure therein prescribed and limitted for a first tender out of Sessions, and a second in Sessions before a Praemunire: Let the Maxim or General Rule be minded in the Case, viz. Quod si vox aliqua plures habet significationes proprias & usitatas, illa cligenda est quae menti & intentioni Legislatoris est Magis accommodata; i.e. That if any Word have more Significations, proper and usual; that is, to be chosen which is most accommodated to the Mind and Intention of the Law-maker.
7thly, The Dis-junctive words insisted on are, ‘[Or any other Person whatsoever shall refuse to take the said Oath, being tendred unto him or her by the Justices of Assize, &c.]’ And not that the said Oath shall, or may, be required of any other Person standing by in Court: And therefore if the Justices say, That he is known to be a Popish Recusant, being convicted, &c. (for such that Law intends) that's easily made appear, if such; or else that he is notoriously suspected; which are the most colourable Allegations for a first tender of the Oath in Court, to any other Person than him that's under Prosecution: Then it follows, that they cannot legally so tender it to any Person whatsoever, without exception or limitation, but to a Popish Recusant convict, or to one notoriously suspected. If this last be pretended, then it is to be enquired.
- 1st, What he is suspected for? What hainous Offence, Crime or Principle that renders him so very Obnoxious in the Eye of this Law, that he must be more hardly dealt withal upon a surprizal of a first tender in Court, than a Popish Recusant under Prosecution?
- 2dly, What occasion is there really against him to render him such a notorious suspected Person? and who are his Accusers? 'Tis no small thing in such a case to bring a Persons Reputation and Credit so publickly into Question in Court, especially if he be of good Repute among his Neighbours, as no Papish, nor Popishly affected, which is the said Prisoners case.
Observation. Therefore the real Causes and Reasons of suspition[Page 71]in this and all Criminal cases ought to be considered, as for Instance:
Judge Cook; ‘One or more Justice or Justices of Peace, cannot make a Warrant upon a bare Surmize, to break any man's House to search for a Fellon, or stolen Goods, &c. Vid. E. Cook, Instit. 4 part fol. 176, 177. And it should be full of Inconvenience, that it should be in the Power of any Justice of Peace, being a Judge of Record, upon a bare suggestion to break the House of any Person, of what State, Quality or Degree soever, and at what time soever, either in the Day or Night upon such Surmises.’
‘For Justices of Peace to make Warrants upon Surmises, for breaking the Houses of any Subjects, to search for Fellons or stolen Goods, is against Magna Charta: M.C. cap. 29. Neo super eum ibimus, neo super eum mittemus, nisi perlegale Judicium parium suorum, vel perlegem terrae. And against the Statute of 42 Edward 3. c. 3. &c. Justices of Feace are Judges of Record, and ought to proceed upon Record, and not upon Surmises: Sed distinguenda sunt tempora & concordabunt leges,’ i.e. Times are to be distinguished, and Laws will agree, As to a sufficient cause of suspition, see likewise Michael Dalton, &c.See also M. Dalton's Justice of Peace, fol. 276, of Excommunication of Fellons. Communis vox & fama, that he did the Offence, is sufficient cause of suspition, viz, where such a Fellony is done, otherwise not: But yet for the better conceiving what may breed or give just cause of Suspition, mark some of Mr. Bracton's Rules; Ocitur suspitis ex famâ fama vero quae suspicionem inducit, oriri debet apud bonos & graves, (non quidem Malevotes, sed providas & fide dignas Personas) id (que) non semel sed saepius. Vanae autem voces Populi non sunt andiendae.
And therefore where the common Proverb is Vox Populi est vox Dei, it should be Vox Populi Dei est vox Dei.
8thly, The Words [or any ether Person whatsoever, &c.] in the 3 Jac. 4. being left out of the same Clause in 7 Jac. c. 6. and inconsistent with the course of procedure therein (for a first tender of[Page 72]the Oath out of Court, and a second tender in Court, even to Pepish Recusants) are therefore not to be insisted upon contrary to the latter Statute: As also that passage in the 3 Jac. 4. impowering the Bishop of the Diocess, or two Justices, to examine Persons upon Oath about Recusancy, is also left out of the 7 Jac. 6. Where there's any inconsistency between two Acts in any clause in the same case, (especially where the first is more severe tan the second) 'tis not reasonable the first should be insisted on, in opposition to the latter, considering that Axiome or Principle, i.e. Benigna & favorabilis Interpretatio semper praeferenda est praesertim simateria legis sit poenalis & ediosa; i.e. A gentle and favourable Interpretation ought alwayes to be preferred, especially if the matter of the Law be penal or grievous.
To conclude on some Questions and Considerations instead of an Argument more absolute; though the Statute before-mentioned, i.e. 3 Jac. c. 4. and 7 Jac. c. 6. be not actually repealed, yet the Question is, Whether they do give the Justices power to require the said Oath universally of the Subjects of the present King, and to prosecute them to a Praemunire thereupon for not taking it?
1st, Consider that the form of the said Oath is limitted and prescribed by the said Statutes, to be taken respectively in King James his Name, and by his Subjects, for the Tryal how they stand affected in point of their Loyalty and due Obedience, and not (mutatis mutandis) in the Name of King Charles the second, and by his Subjects in general, or without exception: 'Twas King James his Subjects, and not those of King Charles the second after his decease, that were by those Laws required to take it, and thereby were bound to him and his Heirs. The Allegiance was to him and his Heirs; but how do these impower the administring of that Oath of King James to the Subjects of his Heirs? That these Laws seem not to warrant; therefore how can the said Oath be legally required (by the same Laws) of the Subjects of King Charles the second; or any of them run to a Praemunire thereupon, without being re-inforced or renewed by Act of Parliament? And can that be without[Page 73] mutatis mutandis, King Charles the second, in the Oath, instead of King James? But it may be hoped, that after these many Years experience, more safe Expedients may be found out for securing the King and Government, than this or other Oaths; for those that are Perfidious can easily break over such Hedges: And those that are known to be of peaceable Conversations need them not; nor is it for the Honor of Princes to be rendred jealous or suspitious of their peaceable Subjects, by such tyes and shakles which produce not a true natural Allegiance. For even the present King in his Declaration, Dec. 26, 1662. hath declared His Royal dignity and greatness much more happily & securely founded on his Clemency and his subjects Loves, than in their Fears & his Power. Further adding these Words, The sole strength and security we shall ever confide in, shall be the Hearts and Affections of our Subjects indeared and confirmed to us, &c.
Observation. For as Judge Cook saith, ‘Neither can any Oath, allowed by the Common Law, or by Act of Parliament, be altered but by Act of Parliament, &c. Cook Instit. 3 part fol. 165. As the Oath of the Kings Privy-Council, the Justices, the Sheriffs, &c. was thought fit to be altered and enlarged; but that was done by Authority of Parliament. For further proof whereof, (saith he) see the Statutes here quoted, and it shall evidently appear, that no old Oath can be altered, or new Oath raised without an Act of Parliament, or any Oath ministred by any that have not allowance by the common Law, or by Act of Parliament; Vide 5 R. 2. c. 12. 6 R. 2. c. 12. 4 H. 4. c. 18. 2 H. 5. c. 7. 8 E. 4. cap. 2. 1 R. 3. c. 6, and 15. 19 H. 7. c. 14. 14 H. 8. c. 2. 23 H. 8. c. 5. 3 H. 8. c. 5. 23 H. 8. c. 46. 2 E. 6. c. 13. 27 Eliz. c. 12. 3 Jac. 4. Mag. Char. c. 6. Stanf. pr. 17. F. N. B. 264. W. 1. 3 E. 3. c. 40. 18 E. 3.’
‘To conclude this point, it was resolved in Parliament holden Anno 43 Eliz. that the Commissions concerning Polices of Assurances could not examine upon Oath, because they had no Warrant either by the common Law or by Act of Parliament; and therefore it was Enacted at that Parliament. That it should be lawful for the said Commissioners to examin Witnesses upon Oath, &c. Oaths that have no Warrant by Law, are rather Nova tormenta quam Sacramenta. And it is an high Contempt to minister an Oath without Warrant of Law to be punished by Fine and Imprisonment.’
[Page 74] Observe another Instance.
2dly, In the 12th Year of the present King, it is enacted by the Parliament,12 Car. 2. c. 23, 24. that no Persons should be imployed in any Office relating to the Excise, untill they shall take the Oath of Allegiance and Supremacy before two, or more, Justices of Peace, together with the Oath therein inserted, mutatis mutandis. And likewise it is Enacted 14 Car. 2. c. 3. That no Person being under the degree of a Peer in this Realm, shall be capable of acting as Lievtenant, Deputy-Lievtenant, Officer, &c. unless he or they shall first take the Oaths of Allegiance and Supremacy, &c. Consider hence, whether the making these new Laws in Car. 2. does not argue the old Laws cited insufficient in the same case of requiring the said Oath now?
By an Act in the thirtieth Year of the present King, Entituled, An Act for the more effectual preserving the King's Person and Government; 30 Car. 2. It is Enacted, That no Person should Vote or sit in the House of Peers, or House of Commons, untill he first take the several Oaths of Allegiance and Supremacy.
And observe, that the refusal by these Acts does not incur a Proemunire, but only the forfeiture of their Places or Offices.
And what necessity could there be of these Acts in King Charles the second, if these in King James were sufficient or not expired, especially as to that severe Penalty of Paemunire, meetly for refusing of that Oath, as 'tis required in terminis, by those Laws of King James: For in the 7 Jac. cap. 6. The Members of Parliament are required to take the said Oath, as it was to King James and in his Name—If that were still in force and sufficient, what need were there of any new Laws, as before, to require it of Subjects under the same Circumstances now, as then? To conclude, the Penalty of Praemunire is so severe, that 'tis more suitable for Rebels, or Persons breaking their Allegiance to the King, than for Persons only refusing to Swear it meerly for Conscience sake, whilst they faithfully perform their Allegiance, and intend no other but to demean themselves as peaceable minded Christians and true Protestant Subjects.
A more general Plea in the Prisoners case and behalf, relating both to Conscience, Reason and Equity; First, In reference to the Grounds and Reasons of the Oath of Allegiance; Secondly, In reference to the Reason of the Penalty of a Praemunire, according as both are clearly specified in the Titles, Preamble and Purport of the Statutes (& in the nature of the Oath it self) in that case made and provided, i.e. 3 Jac. c. 4. and 7 Jac. c. 6. and 16 R. 2. c. 5.
Anno tertio Jacobi Regis, cap. 4. The Title; "An Act for discovering and repressing of Popish Recusants."
FOr as much as it is found by daily experience, that many his Majesties Subjects, that adhere in their Hearts to the Popish Religion, by Infection drawn from thence, and by the Wicked and Devilish Counsels of Jesuits, Seminaries, &c. are so far perverted in the point of their Loyalties and due Allegiance unto the King's Majesty, and the Crown of England, as they are ready to entertain and execute any Treasonable Conspiracies and Practices, as evidently appears by that more than Barbarous and Horrible Attempt to have blown up with Gun-powder the King, Queen, Prince, Lords and Commons in the House of Parliament assembled, tending to the utter Subvertion of the whole State, lately undertaken by the Instigation of Jesuits and Seminaries, and in advancement of their Religion, by their Schollars taught and instructed by them to that purpose; and divers Persons Popishly affected, the better to cover and hide their false Hearts, and with the more safety to attend the Opportunity, to execute their mischievous Designs, repair sometimes to Church, to escape the Pena [...]ties of the Laws in that behalf provided.
[Page 76] From all which observe:
- First, Who are intended, appears by the Title, i.e. Popish Recusants.
- Secondly, That by the Preamable here's more than a bare suspicion of many the Kings Subjects, being by the Devilish Counsel of Jesuits thus far perverted in those days, that it was found by daily Experience.
- Thirdly, That the effect and influence that such Perversion had on them was, That they were ready to execute any Treasonable Conspiracies and Practices.
- Fourthly, The Discovery and Experience of such Treasonable Conspiracy, proceeding from such Perversion, scil. That Horrible Attempt to have blown up with Gun-Powder the King, Queen, Prince, Lords and Commons in the House of Parliament Assembled.
By all which 'tis apparent, that this was a manifest and most grevious occasion, as 'tis specified, and that of a very high nature in it self, most Barbarous, Criminal and Treasonable, which being chargeable upon the Counsel of the Jesuits and Seminaries, did so far render their Followers suspicious, that Provision by this Act and Oath of Obedienee was made and intended for their Discovery and Suppression.
Now let Honesty, Truth, Conscience and common Reason judge in the Case, what Equity and Justice can there be to pursue the peaceable and innocent People called Quakers, upon this or any other Act grounded thereon, and to run them to a Praemunire, to the utter forfeiture and loss of their Estates and Liberties, or to make the said Oath a meer Snare to them, for their scrupling to take it, purely upon a Conscientious account, and not upon any such wicked Principles of Disloyalty, as are either Treasonable or tending to the Subvertion of the Government or State of the Kingdom? But being clear and innocent in the sight of God and Men, from all such wicked Principles, Attempts and Practices, and never chargeable in the least therewith since we were a People, what great Injustice, both in the sight of God, Angels and Men, is it, for any that are appointed Ministers of Justice and Right, to make the said Oath a meer Trap and a Snare, to run us out of our Liberties, Properties and Estates on this occasion? If King James was accounted a mercifull [Page 77]Prince, not willing the innocent should share of the Severity due to the guilty, in signifying that his intent in publishing this Oath was to make a separation between Catholicks of a peaceable Disposition, and in all other things good Subjects (as hath been reported) and such Catholicks as maintained the Rebellious Principles of the Powder Trators (according as he himself signifi [...]d) How much more ought there to be a distinction made between the peaceable Protestants, and such seditious and evil Principled Papists, for whom the Oath and Penalty of Praemunire was first intended, so as not to run them upon such Protestants, who are both of a peaceable Disposition and Conversation? Their dissenting from the Persecutors, in point of Worship being purely conscientious and tender towards the Lord Jesus Christ, and with respect to a real Reformation from Popery, both as to the Root, Branches and Reliques thereof, which is clearly our case. If King James was not willing that p [...]aceable Papists should be run to a Praemunire, Why should peaceable Protestants be more severely dealt withal, or run to a Praemunire for their Conscientiously scrupling only to Swear Allegiance?King James's Apology for the Oath of Fide [...]i [...]y, f [...]l. I. Quod non tam eo f [...]ebat, &c. i.e. which was done or made, not so much that Subjects of better note might be distinguished from Rebells, [a perduellibus] which deny just obedience to the King, but especially that I might discern or sever [secernerem] them who addicted to the Opinions of Popery, yet have not abjured fidelity from such who carryed awa [...] with the Whimsie or Phanaticism [vertigine] of the same zeal with the Gun-powder Traytors, would not be held within the Limits of natural Obedienc [...], and believed that all P [...]ots and Treasonable Crimes were excused by the only disparity of Religion. And what proportion or equality can there be between our supposed Offence, and the Penalty? There's no more reason to suspect that our refusing to swear allegiance is out of disaffection to the King, than that our refusing to swear in our own concerns (to preserve our just Rights) is out of disaffection to our selves. The King loseth nothing by our not Swearing Allegiance to him, whilst we perform it; but we sometimes suffer loss and detriment by not swearing in our private con [...]erns. Therefore our scrupling an Oath and refusing to Swear Allegiance is purely matter of Conscience, and not from any Principles of Disloyalty to the King, no more than it is from any disrespect to our selves, or our own [Page 78]Interests. 'Tis not unknown, but generally believed, that Jesuits and Popes Agents in these days can equivocally take the said The History of the Church of Great Brittain, by G G. on that year 1605. p 272. Upon the making this Act the Pope dispatched two Breves into England, prohibiting all Catholicks to take this Oath, so destru [...]tive to their own Souls and the See of Rome, exhorting them to suffer Persecution, and manfully to endure Martyrdom. Notwithstanding all which, this Oath being tendred was generally taken by Catholicks without any scruple, and particularly Gen. Black-well, Arch-Priest of the English, being apprehended and cast into Prison, by taking this Oath wrought his own enlargement. This Oath was ministred immediately after the putting forth of a Proclamation which commanded all Seminaries and Jesuits to depart the Land. [...]bid. King James wrote an Apology for the Oath of Allegiance, together with a Premonition to all Monarchs, Kings, Free Princes and States of Christendom, effectually confu [...]ing the Popes Breves. [This Apology I have seen] So that it was intended against the Papists is known by all Christendom. Suarez, Eudaemon, Becanus, Coftetus, Peleterius and other Papi [...]s wrote against it. R.R.Oath, and thereby obscure their destructive Designs, and escape the Penalty of the Law, upon the confidence they have in the Popes pardons, for all their equivocal reserves in taking the Oath, going to Church, &c. And why may not all this be as easily dispensed withal by such Agent, of Rome, to carry on their evil Designs, as their repairing to Church in King James's days (as is signifi'd) to cover their false hearts, and with the more safety to attend the opportunity, to execute their mischievous Designs. And therefore whilst such can escape by Equivocation, and the Innocent suffer for Conscientiously scrupling to Swear (not only in this, but all other cases) that which was at first intended for the discovering and suppressing such Persons as were infected with destructive and treasonable Principles and Practices, is now contrariwise by subtilty and envy, so far perverted as to be made a Subterfuge, for persons obnoxtious and treasonable in their Designs (or disguised and wicked Agents) against the Government, as they are counted of the worst sort, and a s [...]are and gin to catch and destroy the innocent and peaceable Subjects with, both as to their just Liberties, Properties and Livelihoods in this World. Thus the said Oath is made use of against the Interest of both King and People; they that thus use the Oath use it against the Government; and thus it never attained its end.
[Page 79]Thus Justice and true Judgment is turned backward, and the Justice intended by the Law perverted, and the real end thereof made void, and that under pretence of Justice, where subtilty, envy, persecution and partiality blinds the mind.
Anno Septimo Jacobi, cap. 6. The Preamble.
Whereas by a Statute made the third year of your Majesties reign, Entituled, An Act for the better discovering and repressing of Popish Recusants. The form of an Oath to be ministred and given to certain Persons in the same Act mentioned, is limitted and prescribed, tending only to the Declaration of such Duty as every true and well-affected Subject, not only by Bond of Allegiance, but also by the Commandment of Almighty God, ought to bear to your Majesty, your Heirs and Successors, which Oath such as are infected with Popish Superstition, do oppugn with many false and unsound Arguments, &c.
Hence observe still.
- 1st, That the very first and chief intent of the said Statute and Oath (made in the third year of King James) on which this in his seventh year is grounded, was for the discovering and repressing Popish Recusants, and not for the repressing Pretestant Subjects.
- 2dly, That 'twas such as were infected with Popish Superstition in those dayes, that (as the Law-makers concluded) did oppose the said Oath, with many false and unsound Arguments: And what was or could be then supposed to be their reason for their so oppugning it, is to be considered.
It could not be simply and only because it was an Oath, for that they infected generally, or for the most part, could Swear in other cases, to serve their own turns. What then?
- 1st, No doubt, it was because of the Declaration contained in it, of such Duty as every true and well-affected Subject ought to bear to the King.
- 2dly, Because of the severe renunciation of the Pope, his having Power and Authority over the King, or to dispose of his Dominions, and against the Popes Sentence of Excommunication, Absolutions, and that damnable Positions of deposing Princes, Excommunicated[Page 80]by the Pope, absolving Subjects of their due obedience to their Princes, &c.
It appears plainly, that they who were infected with such Principles of Disloyalty, did not oppose the said Oath, simply and only because it is an Oath, but because of the Declaration of such Duty and Allegiance to the King, as is therein contained.If it should be objected, That there were some that thought it not to belong to their Degree or Profession to Swear. If only on that account they refused it, and not in favour to those seditious and treasonable Practices and Principles therein abjured, then as Persons of a more peaceable disposition, they ought to be distinguisht from Rebels, according to King James's mind. Otherwise, if they could take it in dissimulation, then twas an unsufficient Tryal Those that did not so think, but in other cas [...]s could Swear, either took it, as Blackwell, &c or declared the unlawfulness of it in respect of Allegiance, &c. Therefore 'twas only against such that so declared or opposed the Allegiance it self, that both the Oath and the Penalty were intended. See T [...] Dialogue, God and the King, pag. 18. Latin.
Now our case vastly differs from theirs, for whom the Oath was intended; there's no parity between our case and theirs: We conscientiously scruple or fear to take that Oath, as we do all Oaths, viz. because 'tis an Oath, not because of the Declaration therein contained, of such Duty and Allegiance as every true and well affected Subject ought to bear to the King, nor yet because of the Testimony or Declaration therein against the Pope, his pretended Power, Excommunications, Absolutions, &c. damnable Position [...], &c. therein mentioned, for that Declaration and Testimony therein contained for Fidelity to the King, and against the Pope, &c. we can freely sign, as we have delivered a Declaration to that purpose to the late long Parliament, and in some points containing a more full Protestation against Popery, in the most Erronious, Idolatrous and Superstitious Doctrines thereof; which Declaration was accepted by a large Committee of Parliament, as sufficient to distinguish us from Papists, and entred into the Journal of the House of Commons. And therefore the Substance of the Declaration of Allegiance, contained in the Oath of Allegiance, we cannot oppugn, but own, as 'tis or may be transferred or intended on behalf of the present King, (in opposition to those Treasonable Practices and Principles thereby renounced and abjured) as being perswaded in Conscience, that he was [Page 81]eminently preserved, and restored by a Hand of divine Providence, to have actual Power and Dominion in this Realm, and all other his Contries, knowing that the most High rules over the Kingdoms of men, and that they are at his Disposal.
And we also believe, that in good Conscience we are bound to demean our selves honestly, and to live as peaceable minded Christians, and true Protestant Subjects under the King and his Government, giving to Caesar the things that are Caesar's, and to God the things that are God's. And then our solemn and serious Protestation is against the Pope as Anti-christian, and against those Popish Principles, Wicked Positions and Practices, viz.
- Of deposing or murthering Kings and Princes Excommunicated by the Pope.
- Of disposing of their Kingdoms, Dominions and Countries.
- Of authorizing Forreign Princes to invade and annoy them.
- Of absolving Subjects from their Allegiance and Obedience.
- Of licensing any of them to bear Arms, raise Tumults, or offer Violence or Hurt to their Lawful Kings, Princes, Governments or Subjects.
- Of Treasons, Traiterous Conspiracies and Hellish Plots against King, Government, Parliament or People.
- Of that damnable Position, that Princes that be excommunicated or deprived by the Pope, may be deposed by their Subjects, or any other.
All which destructive Principles and abominable Practices, together with that Antichristian Spirit, from whence they proceed, we do in good Conscience (and in the sight and presence of God, who knows our Hearts) utterly abhor, protest and testifie against them; and therefore do neither refuse nor scruple the said Oath in favour to these or any such Principles.
What's now awanting, why we must be run to Praemunire, to lose our Estates and Liberties? I [...] a peaceable Conversation awanting on our parts? No. Is the Duty of Allegiance towards our King awanting? No. Are we infect [...]d with Popish Treacherous, Treasonable or Destructive Principles against our King, or his Government or People? No; God knows the Innocency of our Hearts and Intention [...], and men know our peaceably Conversations. What then's the matter, that we must be so severely dealt withal, to the uttermost rigour of the Law, to be deprived of all our outward [Page 82]Liberties, Properties, Estates, Livelihoods, and all our outward Comforts in this World? Are we guilty of any such essential Offence or capital Crime (in our not coming under the circumstance of an Oath) as may justly and naturally merit such severity? No sure. The case is brought to a near point, and resumed to a very narrow compass. Aninnocent, honest, quiet and well meaning man, both towards the King, his Government and People; he's truly principled in his Duty; he's real and hon [...]st in his Heart towards his Protestant Prince; he's a real Protestant against the Pope and all Popish Antichristian Positions and Destructive Practices; he not only performs his Duty of Allegiance in his peaceable Conversation, but also declares it in the sight of God and Men, and is willing to sign and subscribe such Declaration of his Duty of Allegiance, if he may not otherwise be believed, only he conscientiously scruples to say, I Swear, and to kiss the Book, to make his Declaration an Oath; for want only of which circumstance and ceremony this poor innocent man and sincere Protestant must be run to a Praemunire, his Liberty lost, and the little Estate or Substance he has must be forfeited, and all taken from him; his poor Wife and small Children left desolate, wholly Impoverished and want Bread; his Wife must go Mourning and wringing her Hands, and shedding of Tears night and day, for the hard measure she has met withal, and her Children dolefully Crying and Mourning for want of Bread! Where's now either Conscience, Equity, Reason, Justice or Mercy? Were it not very Inhumane thus to destroy innocent and harmeless Protestants (and thereby to gratifie the Popish Spirit and Party) meerly because such Protestants are afraid of an Oath? They dare not Swear. And how is the real intent and end of the Law answered by such severe and inhumane dealing with innocent Protestants, who never were impeached nor just'y chargeable either with treasonable Attempts, Principles or Practices? They cannot be detected either with actual Treason, or being infected with any Treasonable Principles by any of their Teachers or others. And therefore, no such Persons or People as those Laws of Praemunire were really intended against, though such can escape them. We can appeal to God, Angels, and all just impartial Men, this is our Case; We are not the People, which in point of Equity or Justice, the Law could ever be intended against; We are of no such destructive Principles [Page 83]or Practices, as either the nature of the Oath points at and intends, or the Statute of Praemunire, 16 R. 2. c. 5. was provided against, unto which Statute, both that of the 3d of K. James c. 4. and 7th of K. Ja. c. 6. do refer, for the Penalty of a Pramunire upon Persons refusing to Swear to the Dealaration of their Allegiance. Let that of 16 R. 2. c. 5. be considered, as to the nature and intent thereof.
Anno deccimo Sexto Ricardi 2. c. 5. The Title; "Praemunire for purchasing of Bulls from Rome; The Crown of England subject to none."
The conclusive Clause of the Offence and the Penalty, viz.
VVhereupon our said Lord the King, by the assent aforesaid, and at the request of his said Commons, hath ordained and established, That if any purchase or pursue, or cause to be purchased or pursued in the Court of Rome, or elsewhere, any such Translations, Processes and Sentences of Excommunication, Bulls, Instruments, or any other things whatsoever, which touch the King, against him, his Crown and his Regalty, or his Realm—And they which bring within the Realm, or them receive, or make thereof notification, or any other Execution whatsoever within the same Realm or without, that they, their Notaries, Procurators, Maintainers, Abettors, Fautors and Counsellors shall be put out of the King's protection, and their Lands and Tenements, Goods and Chattels forfeit to our Lord the King; and that they be attached by their Bodies, if they may be found, and brought before the King and his Council, there to answer to the causes aforesaid, or that process be made against them by Praemunire Facias, &c.
Animadversion.
Now it being unto this Statute, cited 16 R. 2. and the penalty of Praemunire therein mentioned, that those of King James [Page 84]about refusing the Oath, do refer the Justices, as to the Penalty: Hence these two things are observable:
- 1. The Nature of the Offence or Fact incurring such severe Sentence and Penalty, as that of Praemunire.
- 2. The Nature of the Penalty if self.
First, The Nature of the Offence or Fact is very criminal; 'tis Treacherous and Treasonable, as that of purchasing, pursuing or precuring in the Court of Rome, &c. Sentences of Excommunication, Eulls, Instruments, &c. which touch the King, his Crown and Regality.
Secondly, The nature of the penalty of Pramunire is suitable to the Fact, it bears a proportion, and is adopted thereto, as that the Persons so highly offending, and such perfidious Enemies against the King, his Regality or Government (by purchasing Sentences of Excommunication and Bulls from Rome against the King, tending to destroy him, and subvert his Government) should incur the penalty of being put out of the King's protection, their Lands, Tenements, Goods and Chattels forfeit to the King, and their Bodies attached, and they brought before the King and Council to answer, &c. For how should they desire the King's protection, and to enjoy their Priviledges under him, who purchase Bulls from Rome, in order to destroy him? which is still an Offence of the same nature and hind, that the Oath of Allegiance, and the Acts requiring it (in King James his dayes) were intended and provided against.
All which Offences, Crimes, and treacherous Actions against the King, his Government and People, we are so far clear and Innocent of, as that our very Soul abhors them; And who can charge or justly Impeach us therewith, or with any of them? We can Challenge the whole World, yea, the worst of our Adversaries to detect or impeach us, who are the People called Quakers of any of these things; As,
- 1st, Who justly can charge us, or any of us with any such Correspondency either with the Pope, Church or Court of Rome, as there to purchase or procure any Sentences of Excommunication or Bulls against the King? &c.
- 2dly, Or that can charge or impeach us, or any of us with any Treasons, Conspiracies or Plots against the King, his Government, State, Parliament or People? or that can charge or impeach [Page 85]us, or any of us, with any such Hellish Design, Attempt or Conspiracy, as either that of the Gun-Powder-Plot, or the subversion of the Government, or with seeking to introduce Popery, to destroy the real Protestant Religion (or any part thereof) professed in this or other Nation? or that can justly charge us, or any of us, with any such pernicious destructive, Popish and Antichristian Principles, Positions or Practices, as the Oath of Allegiance was intended and provided against?
As we are sure that no man can justly Detect or Impeach us in any of these, how then can we either in point of Conscience, Justice, common Equity or Reason, be run to such extream Penalties and Sufferings, as to be put out of the King's protection, or to forfeit our Estates and Liberties, meetly because we (in point of Conscience) scruple or fear to Swear to the Declaration of our Allegiance, whilst we sincerely perform the Duty thereof, by our harmless and peaceable Conversation among men, (as our Neighbours are Eye Witnesses) both as Christians and true Protestant Subjects, which truly answers the Intent and End of the Law. Our dissent (in point of Conscience and Worship) being out of no respect to Popery, but the contrary: For we really believe, we are more clearly Reformed Protestants, than those are from whom we dissent: Where's then the proportion or equality between our supposed Offence (which is but Circumstantial at most) and the Penalty? There's no parity at all between them. Let the Law of Truth, Justice, Equity and Conscience in all moderate Magistrates and impartial Men judge in this our Case; for to that we appeal, and not to the Spirit of Persecution, Envy, Revenge and Partiality, which (without any due measure of things, and without all Compassion) seeks occasion against us to destroy us, which the Righteous God and just Judge of Heaven and Earth will plead with and judge. Let due measures be taken of Offences and Penalties, which ought to be suitable: Penalties ought not to exceed the Offences (but to be secundum qualitatem & quantitatem delicti) nor those things to be made Offences which really are none. Let Justice and Right take place, and equal Law and execution of Right be followed, according to the Fundamental Laws and Rights of English men, and that which all the Kings Justices and Ministers (who under him are appointed for[Page 86]that end) are obliged unto both in the sight of God and men, as being under a severe Obligation to minister justice and right to all his Subjects, Rich and Poor, without partiality.
Norwich Prison, the 23d of the 2d Moneth, 1680.
Here follow some Exceptions, which the said G.W. and T.B. Prisoners, had in readiness in Court against the manner of their Imprisonment by the Sheriff without a Warrant, on the 21st of the Moneth called March, 1679.
‘Arrest explained, Dalt. fol. 706.AN Arrest being the apprehending and first restraining of a man's Person, depriving it of his own Will and Liberty; and may be called the beginning of Imprisonment.’ See Dalton fol. 306.
Exception 1.
‘Dalt. fol. 304. of Warrants. Dyer 244. [...] Bar. 248. Lamb. 93.If any Officer do Arrest a man for the Peace, or the like, before that he hath a Warrant, and then after doth procure a Warrant; or a Warrant cometh after him to Arrest the party for the same cause: yet the first Arrest was wongful; and the Officer is subject to an Action of false Imprisonment.’ See the Statute 43 Eliz. c. 6. See also Dalt. fol. 307.
Exception 2.
From the Act made to prevent and suppress Seditious Conventicles, 22 Car. 2. fol. 10, 11. These passages are to be observed: viz.
23 Car. 2. fol. 10, and 11.Also the Sheriffs, and other Magistrates and Ministers of Justice, or any of them joyntly or severally, &c. are to have Certificate made to them respectively, under the Hand Seal of a Justice of Peace or chief Magistrate, of his particular Information or Knowledge of such unlawful Meeting or Conventicle held, or to be held in their respective Counties or Places; and that he with such assistance as he can get together, is not able to dissolve the same, shall and may repair unto the Place, &c. and take into their Custody such, and so many of the said Persons, so unlawfully assembled, as they shall think fit, to the intent that they may be proceeded against according to this Act.fol. 11.
And the respective Constables, Head-Burroughs, &c. are to have Warrant from the Justice, Justices or chief Magistrate respectively, &c. to take into their Custody Persons unlawfully assembled, as they shall think fit, to the intent that they may be proceeded against according to this Act.
Whence two things are observable.
- 1. That Persons so met, as aforesaid, are not to be taken into Custody by Sheriffs or other Officers, without Warrant or Certificate under the Hand and Seal of a Justice of Peace, or chief Magistrate.
- 2. That where Persons are so taken into Custody, 'tis to the intent that they may be proceeded against according to this Act, which Intends not their Commitment to Goal, but to fine them upon Conviction. Therefore the Prisoners, if they were Offenders against this said Act; yet their being taken and thrust into Goal without such Warrant or Certificate under Hand and Seal, &c. and after being committed and detained in Goal for not paying their Fines, is besides and contrary to the provision made in this very Act.
What due Process in Law is.
‘Due Process explained.A Commitment by lawful Warrant, is accounted in Law due Process or Proceeding in Law, and by the Law of the Land, as well as by Process by force of the Kings Writ.’ Cook 2 part Institut. fol. 52.
Exceptions against the Warrant of Commitment, dated the 21st of March, Anno Dom. 1679.
Exception.It appears illegal for these two Reasons.
- 1st, Because it is made not in the King's Name, but in Francis Bacon's own Name.
- 2dly, Because it was made and served on the 21st Day of March, in the Year abovesaid, being the Lord's Day, commonly called Sunday.
Reason for Exception first.For the first Ecxeption observe:
First, That the Form of Mittimusses, or Warrants of Commitment of Persons to the common Goal, ought to be in his Majesties Name, or in the Kings Name, or on the behalf of our Lord the King, &c. Dalt. Just. pac. fol. 348, 349, 350, 351. As Dalton shews formal Presidents,His Presidents of Mittimusses. only such Warrants as are for the Commitment of Rogues, and Whores, and idle Persons, &c. to the House of Correction, are sometimes made in the Justice's own Name only. See Daltons Presidents, as to the form of Warrants of Commitment, fol. 348, 349, 350, 351. printed in the Year 1622.
Reason for Exception 2d 29 Car. 2.1677. Secondly, That in the Act for the better Observation of the Lords Day, commonly called Sunday, there is this provision made, Claus. ult. ‘Provided also, that no Person or Persons upon the Lords Day, shall serve or execute, or cause to be served or executed any Writ, Process, Warrant, Order, Judgment or Decree, (except in cases of Treason, Fellony, or breach of the Peace) but that the Service of such a Writ, Process, Warrant, Order, Judgment or Decree, shall be void to all Intents and Purposes whatsoever. And the Person or Persons so serving or executing, the same shall be as liable to the Suit of the party grieved, and to answer Damages to him for so doing thereof, as if he or they had done the same, withoutThus the Sheriff did by the Prisoners. any Writ, Process, Warrant, Order, Judgment or Decree at all.’
[Page 89] Observe, The Case of the said Prisoners, in relation to the Meeting aforesaid, (where they were apprehended) was neither a case of Treason, Fellony, nor breach of the Peace, (they being peaceably assembled, and in a peaceable habit and posture, and for no Evil intent whatsoever) Therefore the whole process against them, on the said 21st day of March, 1679. being the Lords Day, both by Sheriff and Recorder, were against the Law: First, In apprehending and Imprisoning them without Mittimus or Examination: And Secondly, In the Recorder's making a Warrant of Commitment, and sending them to Goal on the same Day, when neither Treason, Fellony, nor breach of the Peace were proved, or justly chargeable against them.
Observe, These foregoing Exceptions against the said Imprisonment and Warrant of Commitment were not read in Court, nor the following Notes relating to matter of Fact (though both had in readiness) because the said Warrant of Commitment was not insisted on by the Recorder, but let fall, when his Warrant for detention was detected and made invallid in Court.
And here it may not be amiss to add some Notes out of Dalton and others, concerning the Breach of the Peace, and Assemblies; what are unlawful, and what lawful.
‘Peace in effect (saith M. Fitz) is the Amity, Confidence and Quiet that is between men; And he that breaketh this Amity, breaketh the Peace. Dalt. fol. 7.’
‘Peace in the common acceptation.Yet Peace (in our Law) most commonly is taken for an abstinence from Actual and Injurious force, and offer of Violence; & so is rather a restraining of hands than an uniting of Minds: And for the Maintenance of this Peace chiefly were the Justices of Peace first made.’
‘Breach of the Peace, what.The breach of this Peace seemeth to be any injurious Force or Violence moved against the Person of another, his Goods, Lands or other Possessions, whether it be by threatning Words, or by furious Gesture, or force of Body, or any other force used, in terrorem Populi.’
Of Riots, Routs, unlawful Assemblies.
- 1. The Number of Persons assembled.
- 2. The Intent or Purpose of their Meeting.
- 3. The Lawfulness or Ʋnlawfulness of the Act.
- 4. The Manner or Circumstance of doing it.
See the Statute of 1 Ma. 12. 1 Eliz. 16.
Assemblies Lawful.
‘Assemblies lawful. Dalt. fol. ibid. 201.But an Assembly of an Hundred Persons, or more (yea, though they be in Armour) yet if it be not in terrorem Populi, and were assembled without any intent to break the Peace, it is not prohibited by any of these Statutes, nor unlawful.’
‘Crom. 62. P.R. 25.For the intent, it seemeth it can be no Riot, &c. except there be an intent, precedent to do some unlawful Act, and with violence and force.’
‘Dalt. fol. 202.Also, where there be three, or more gathered together, either to execute the Justice of the Law, or for the exercise of Valour, and tryal of Activity, or for the increase of Amity or Neighbourly Friendship, and not being met with an intent to break or disturb the Peace, or to offer Violence or Hurt to the Person of any; Such Assemblies be not prohibited by these Statutes, NOR ƲNLAWFƲL.’
[Page 91] Observe, But the Meetings of the People called Quakers are for the increase of Amity and Neighbourly Friendship, and not with any Intent to break or disturb the Peace, or to offer Violence or Hurt to the Person of any; Therefore the Assemblies of the said People called Quakers are not unlawful, nor against the Peace.
Note, That the foregoing Quotations out of M. Dalton, were taken out of an old Impression, from which the newer Impressions differ, as to the Folioes, and so may not be so readily found in the new ones, though they be in them all.
Here follows a Copy of the Discharge of the aforesaid Prisoners.
AT the the General Sessions of the Peace holden for the City of Norwich and County of the same, before Robert Freeman Esquire, Mayor of the City of Norwich, John Norriss, Esquire, Recorder of the said City, John Mingey squire, Steward of the said City, and other his Majesties Justices of Peace of the said City, the 12th of July, in the two and thirtieth Year of the Reign of our Soveraign Lord King Charles the second, &c, Anno (que) Dom. 1680.
Proclamation being there Publickly made, That if any Person would come into the Court, and give any Information or Evidence, or prefer any Bill of Indictment against George Whitehead and Thomas Burr, Prisoners at the Barr, and they should be heard. And because no Person came into the Court, to prefer any Indictment, or to give in any Information against them, the said George Whitehead and Thomas Burr are Ordered to be DISCHARGED, being commited by Order of the last Sessions, to remain in Prison untill this Sessions.
[Page 92] Observe, That although we must needs grant, that after the Sense of the Prisoners case and suffering had impression upon the Mayori.e. H.C. whose Mayralty was out before the Prisoners were releas'd. and Justices of the said City, the greatest part of them appeared to be inclined and desirous that they should be discharged before Sessions, if they could have understood how it might have been regularly done, their Eye being to the Recorder's advice in the case; but some of them did as good as promise they should be discharged at Sessions: Howbeit, in order to the more certain obtaining thereof, the Christian Care and great Industry of some Friends, both at London and Norwich on the said Prisoners behalf, is not to be forgotten, and particularly that of our dear Friend William Mead, in his industrious Endeavours and hard Journey to Norwich, to visit the said Prisoners, and to Solicit for them, and see their Discharge effected; such Labours of Love and Christian Charity God is not unmindful of: And blessed are the true Followers of Christ, that continue in the true Christian Spirit and unfeigned Love one to another unto the end; for herein is a true Sympathizing with, and fellow-feeling of one another in all Afflictions and Sufferings, for the Testimony of Jesus Christ, and of a good Conscience towards God.
The Religions Assemblies of the People called Quakers Vindicated: First, From the Charge of their being in Disturbance of the publick Peace. Secondly, From the Charge of being Seditious Conventicles, mentioned in the Act of 22 Car. 2. Thirdly, From the Charge of being under Colour of Pretence of an Exercise of Religious Worship, in other manner th [...]n is allowed by the Liturgy, or Practice of the Church of England.
1. TO the first Objection, we may ask our Adversaries, What matter of Record5 R. 2. c. 7. 15 R. 2. c. 2. they can justly make against us, the said People, of due Conviction? either from any notorious evidence of Fact, or Testimony of credible Persons, or Confession of our own, as the Law provides; of any formidable Posture that we meet in, as that of Vi et armis, or any menacing Words or Threats made by us, or of any Contrivance of Insurrection, which in the Eye of Law and Reason might be deemed or const [...]ued to be in terrorem Populi, or in disturbance of the publick Peace, or of the nature of a R [...]ot? If such, should not the matter and Circumstances of the Fact be specified upon such Record as the Law enjoyn [...]? But we utterly deny that we ever meet in any such formidable Posture, as is of the nature or tendance of what the Law deems in terrorem Populi. We meet peaceably to wait upon, and really to worship and serve the Almighty God, as our bounden Duty, according to his Grace, Light and Understanding, which he hath given unto us by his Spirit.
In the second Year of Henry the 5th, Chap. 8. ‘It is provided, that if any Riot, Assembly or Rout of People, against the Law, [Page 94]be made in any part of the Realm, H. 5. c. 8. then the Justices of the Peace, three, or two of them at the least, and the Sheriff, or under-Sheriff of the County, where such Riot, Assembly or Rout shall be made hereafter, should come with the Powers of the said County (if need were) to arrest them, and them should arrest; and the same Justices, Sheriff, or under-Sheriff, to have Power to Record, that which they have found so done in their Presence against the Law: And that by Record of the same Justices, Sheriff or under-Sheriff, such Trespessors or Offenders should be convicted in manner and form, as is contained in the Statute of Forcibly Entry, &c.’ 5 R. 2.7. 1 R. 2.2. And in the same Statute it is provided, ‘That like Ordinances and Pains should hold place and take effect in Cities, Burroughs, and other Places and Towns Infranchized, which have Justices of the Peace within them.’
Now let our Adversaries and Persecutors Answer us; Where could any of them ever justly make any such legal and due Conviction upon Record against us, for any such Riotous Meeting, or unlawful Assembly on our parts, as hath been really in it self of such a Nature and Tendance a [...] aforesaid, in Disturbance of the publick. Peace? We positively deny that our Assemblies are of any such Nature, however mis-represented by our Adversaries.
II. Objection, If it be alledged, That our Meetings or Assemblies are contrary to Law, and therefore in Disturbance of the publick Peace.
Query: We Question what Law or Statute they are contrary unto?
Obj. If it be answered, They are coutrary to an Act which is both Mandatory and Paenal, made in the two and twentieth Year of King Charles the second, Entituled, An Act to prevent and suppress Seditious Conventicles.
We Answer; 1st, That our Assemblies are no such, as Seditious Conventicles, i.e. for Sedition, Strife or Rebellion against the Government. 2dly, 'Tis a meer begging the Question, to term our Assemblies Seditious; no such thing has ever been proved against[Page 95]them as Sedition, that isSedition explained. a stirring up to Rebellion or Discord, a Raising a Faction or Mutiny, as Phillipps in his New World of Words explains it; But our Assemblies are for no such Design or End, nor could ever any overt Act of that kind or tendance be proved or justly cha [...]ged against us, in relation to our Meetings, or otherwise: Therefore they are no Seditions Conventicles or Assemblies. 3dly, Our Assemblies are made up of no such Persons or People, as have committed any such dangerous Practices against the Government, as me [...]tioned in the Preamble of the said Act, 22 Car. 2. (though rude Informers and Disturbers have come Riotously, and with Violence against us into our Meetings) Neither are we any such seditious Sectaries or disloyal Persons, who under pretence of tender Consciences, have or may at their Meetings contrive Insurrections; as also the Preamble of the said Act is specified: We use no pretence of tender Conscience for any such wicked End or Design. The All-seeing and Heart-searching God knows our Innocence and Clearness herein; as also the Nation's long Experience can witness for us. And if Titles and Preambles of Laws be the Keys of Laws, and do evince or shew the Nature and respective Intentions thereof, then this said Act against Seditious Conventicles (where under pretence of tender Consciences, Insurrections have been or may be Contrived) doth not extend to us. We pretend nothing but what we really intend, viz. The Spiritual Worship and real Service of Almighty God, who searches our Hearts, and whom we sincerely Reverence and Fear.
III. Obj. But if it be objected, That the matter of Fact incurring the Fines and Penalties of the said Act against Conventicles is our Meeting under Colour or Pretence of an Exercise of Religious Worship, in other manner than according to the Liturgy and Practice of the Church of England, or in other mannor than is allowed thereby.
Answ. We answer; 1st, That the words [Colour or Pretence] have relation to the Preamble, as, Who under pretenve of tender Conscience have or may at their Meetings contrive Insurrections, as late Experience hath shewn. But such pretence or colour of Religious Exercise, for any such Contrivance, were Abominable, Deceit and [Page 96]Hypocrifie, and never chargeable upon us, or our Assemblies: We can challenge the whole VVorld to detect us herein.
2dly, We are not conscious to our selves of any such matter of Fact committed in our Assemblies, and on our part which the Liturgy or Practice of the Church of England allows not. If we be herein charged, let's know what it is that we have done in our Assemblies, which the Liturgy and Practice of the Church of England allows not of, seeing the Liturgy allows of the holy Scriptures, which we are sure allow of and enjoyn Christians Assembling together to wait upon and worship God in Spirit and Truth, and of the manner thereof, as to the places, whether in Houses, or abroad in Fields or Mountains, which is our case, both as to the matter and manner of our Assemblies.
Obj. If it be still objected, That our Meetings are under colour and pretence of an Exercise of Religious Worship, in other manner than according to the Liturgy and Practice of the Church of England.
Answ. We answer; 1st, What that exercise of Religious worship is, that is in other manner than according to the Liturgy, should be explained unto us, and that according to Law, seeing this late Act against Conventicles does not explain What Manner 'tis.
But 2dly, we find in a Statute made in the first year of Queen Elizabeth, Chap. 2. That that other Manner is thus explained, viz. What other Manner the Liturgy allows not. ‘That if any Person or Persons whatsoever shall by open Fact, Deed, or shall by open Threatnings compell or cause, or otherwise procure or maintain any Parson, Vicar, or other Minister in any Cathedrial or Parish Church, Chappel or in any other place, to sing or say any common and open Prayer, or to minister any Sacrament otherwise, or in any other Manner and Form, than is mentioned in the said BOOK, &c.’ This does not at all reach our case, we are not found guilty hereof, and therefore are not condemnable by the Law in this case; this concerned the Clergy, not us; and we neither threaten, compel, cause or any wise procure or maintain any Parson, Vicar, or any else, to sing or say any common or open Prayer, or to minister [Page 97]any Sacrament in any Cathedrial or Parish-Church, &c. we are so far from, that we compel No Body to any Form of Singing or Praying in God's Worship, but perswade men to serve and worship God as he directs, and for that end desire all may come to his divine Grace and good Spirit in their Hearts, to guide them in his holy Worship, both as to matter and manner of praying and praising his Name, that they may serve and worship him, not in the oldness of the Letter, but in the newness of the Spirit, for such he is (even in our days) seeking to worship him, as must worship him in Spirit and in Truth; and such both pray with the Spirit, and sing with the Spirit, and with Understanding, according to the antient Apostolical Testimony and Practice of the Primitive Spiritual Christians.
Norwich. An Account of the People called Quakers sent to Prison by Francis Bacon when he was Steward, and also since he was Recorder, and those Mayors of the City of Norwich who joyned with him since the late Act against Conventicles, 22 Car. 2. came forth.
1670.THe 10th of the Moneth called July, 1670. Thomas Buddery, John Rust, Edward Monk, William Waymor and Anthony Alexander were sent to Prison (upon pretence of a Riot, for telling People as they passed to the Mayors House, there were the Informers, (when people were inquisitive to know which they were) by a Warrant from the then Mayor and Francis [Page 98]Bacon Steward, signifying no crime in the War [...]nt, but till they could find Sureties for the Behaviour; where they were in Prison till the Sessions, and an Indictment brought against them for a Riot; but the Grand Jury were found better Justices, and would not find the Bill: They were detained Prisoners about five weeks.
1670. Samuel Duncon and Anthony Alexander in the year 1670. made their Appeal, where in stead of having Justice done them, the said Francis Bacon being Judge of the Sessions, did absolutely surprize them by his Illegal Proceedings, refusing to give them a Copy of the Records, and made one Witness (being also a party) serve his turn, and the Act says there must be Two; for which they wrote to the Mayor, Steward, and Court of Aldermen, telling them of their Injustice, and for so doing they were committed to Prison by the said Mayor, till they should find Sureties for their appearance at Sessions (upon pretence of scandalous Expressions in their said Letter) who was observed to Tremble when he signed the Mittimus, and for it they were kept Prisoners about A YEAR.
1676. Thomas Atkins was taken out of a Meeting the 17th of the 5th Moneth, 1676. by Constables and Informers; and being had before the Mayor, and Fr. Bacon Steward, and several Aldermen in their Council-Chamber, some of them being very bitter and cruel, saying, he should pay his 20 l. and they tendered him the Oath of Allegiance, and he refusing to Swear, they sent him to Prison, where he was detained about fourteen Weeks.
1678. Thomas Murford had his doors broke open by a Constable, having a Warrant from Francis Bacon, Recorder, for 20 l. Thomas being not at home, who made his Appeal when he came home; but the Recorder being Judge, and having a Jury for his purpose, carried the Case, and from the Court committed Thomas to Prison, where he was detained twenty Weeks.
1678. Simon Gogny was sent to Prison the 16th of the 1st Moneth, 1678. by Francis Bacon Recorder, till he should[Page 99]find Sureties for his good Behaviour. Because the said Simon spoke to him (when he came himself to break our Meeting) something on that occasion, by way of Warning, telling him of Empson and Dudly, he was detained eight Weeks and odd dayes.
1679. Thomas Buddery was sent to Prison by Francis Bacon, Recorder, the 30th day of the 1st Moneth, 1679. till he should find Sureties for the Peace, so expressed in his Mittimus. Because he answered in defence of Truth, in these words, viz. The Service of God is Perfect Freedom, he was detained in Prison six weeks odd dayes.
Norwich. A brief Account of what Goods have been taken from some of the People called Quakers in Norwich, since the Year 1670. to this 30th day of the 1st Moneth, 1680. by Warrants from Francis Bacon (when Steward and Recorder) and three of the Mayors of Norwich, who assisted him upon the late Act against Conventicles.
| L. | S. | D. | |||
| 1670. Five times in the same year. The 15th of the 5th mon. 1676. | TAken from Samuel Duncon at several times, by Warrant from two Mayors, and Francis Bacon, both when he was Steward, and since he was Recorder, Goods to the value of | 72 | 15 | 5 | |
| In the Years 1670, 1675; 1676, 1678. | Taken from Anthony Alexander by Warrants from the same Justices, and also by the third Mayor, Goods valued at | 72 | 16 | 8 | |
| [Page 100]In the Years 1676, 1678, 1679. | Taken from Thomas Murford, by Warrants from Francis Bacon, Recorder, Goods to the value of | 60 | 01 | 0 | |
| In the Years 1670, 1679. | Taken from William Waymor by Warrants from the then Mayor, and F. Bacon, Recorder, Goods to the value of | 10 | 09 | 0 | |
| In the Years | 1675, | Taken from John Fiddeman to the value of | 00 | 08 | 6 |
| 1675, | From John Sharping, Junior, | 00 | 05 | 0 | |
| 1675, | From John de France | 00 | 10 | 0 | |
| 1676, | From Robert Hutchinson | 00 | 07 | 2 | |
| 1670. | From Thomas Buddery | 01 | 00 | 0 | |
| Sum Total | 218 | 12 | 09 | ||
Note, That 'tis not thought fit to expose the Names of the said Mayors of Norwich in this place, hoping that they or some of them, at least, have seen better things by this time, than for the future to have any hand in such Horrid Oppressions (by Imprisonment, Fines and Distresses) upon their Poor Industrious Neighbours, for their tender Consciences, in their meeting to serve God, as they are inwardly perswaded. They cannot be ignorant how discouraging and destructive such Imprisoning, Spoiling and Impoverishing their Neighbours, is to the Trade of their City, which in the Manufactures much depend upon the Wooll-Combers and Worsted-Weavers, &c. And when such poor Labouring men are thus spoiled and harrassed, as to their Livelihoods, how hard it is for their poor Families to subsist? How can such Severities consist either with Christianity or Humanity? Let the Principle of Justice in all Consciences judge; And may th [...]se guilty of such Oppressions Repent before they dye.
Here follows a Copy of an Address from our suffering Friends in Norwich, in the Year 1679. directed to the Knights and Burgesses for the County of Norfolk, and City of Norwich.
The Suffering Case of some of the People called Quakers in the said City.
THe Goods of several have been taken away, without being tryed by their Equals, only by Witnesses in their absence, which was given against them by such as were Parties; and when some made an Appeal, and desired a Copy of the Records which were Sworn in their absence before their Tryal, they were denyed it, and Francis Bacon, who is Recorder of the said City, and sate for Judge of the Sessions, would not let the Evidence be viva voce, but made the said Records (which he would not grant a Copy of before the Tryal) the only Evidence against some Appealants, and put them upon disproving that, and so surprized them; and for complaining of the Injustice of it, two were sent to Prison and they were kept Prisoners about twelve Moneths: And another that made his Appeal F. Bacon sent to Prison, who asking him, Wherefore he was sent to Prison? told him, He should know afterwards; and he was kept close Prisoner eighteen Weeks. And John Crow an Attourny upon Warrant from F. Bacon aforesaid, against Samuel Duncon of Norwich, upon the account of a Meeting, got into the said Samuel's House (when he was from Home) and shut up hi [...] Shop, and he and others kept Possession of his House night and day, to the terror of the said Samuel's Wife, who was very big with Child, and took away the said Samuel's Goods; and when one would have taken account of the Goods, the said John Crow wou [...]d not suffer it; but they rather acted like Plunderers than Executors of [Page 102]Justice. And the said F. Bacon hath slandered the People called Quakers, as being Papists and Jesuits, exciting the Jury at the Sessions in Norwich, to bring in presentments against them, upon which some have been Presented and Arrested upon a Sessions process for 20 l. per Moneth, for not going to the Parish Church. And the said F. Bacon hath very lately prosecuted the said People for their Meeting to worship God, and hath sent two to Prison that he took at such a Meeting, which were kept Prisoners near eight weeks in a stinking Hole, one of which he sent to Prison without a Warrant, and its said, threatned to seize upon their House, and presseth the Constables to execute Warrants from him against some of the said People called Quakers, to take away their Goods, and tells them, They must break open their Doors. And upon the 19th of the 3d Moneth, 1679. came two Constables to the House of William Waymor with a Warrant from F. Bacon, to strain for 10 l. 5 s. who unbarr'd his Shop Door, and an inward Door being lockt, broke it in pieces, and took Goods to the value of 10 l. and better, and praised them at three Pound, and say, They must come for more upon the same Warrant; which great Spoil, as aforesaid, being made upon us by Mercinary Witnesses in our Absence, and given against us, and we thus oppessed by such as are Parties. This kind of proceedure (we conceive with submission) is not more excusable now, than it was in the case of Empson and Dudly These two Oppressors Empson and Dudly were impeached before the Court of Parliament for their Arbitrary Proceedings and Horrid Oppressions which they committed, upon Information for the King (having many Informers to assist them) without lawfull Presentment, Tryal of lawful Peers or Verdict of 12 honest men They acted under pretence of a Law made in the 11th year of K. Henry 7. c. 3. which being contrary to Magna Charta, cap. 29. was made void and repeated, 1 Hen. 8. c. 6. by the Parliament holden then, and the two Oppressors brought to their Tryal, Condemnation and Execution. See C [...]oks Inst. 2 part, fol. 51. and 4 part, fol. 40, 41. in King Henry the 7th's time who were impeached and condemned for their Oppressions and Arbitrary Proceedings, (though they pleaded the prosecution of an Act of Parliament) and to be of as dangerous a tendency to Arbitrariness. Thus some to gratif [...] their Prejudice, others their Covetousness (under pretence of prosecuting the late Act against seditious Sectaries) have very much oppressed [Page 103]the Subjects; and what is charged upon the Prosecutors aforesaid, can be proved if required. Wherefore we intreat your tender Consideration of this our suffering Condition, and endeavour for our Relief.
ERRATA,
BE pleased to Correct these Faults which have escaped the Press, through the Printers Inadvertency, and not to impute them to the Authors.
Page 3. Line 24. for enterim read interim. p. 7. l. 22. r. it cannot. p. 8. l. 29. f. causes r. cause. p. 9. l. 4. for 18 read 28. p. 14. l. 35. r. Mittimusses. p. 15. l. 31. r. Justices. p. 16. l. 31. f. Anglia'r. Angliae. p. 24 l. 17. f. Court is bound r. Court is not bound p. 29. l. 9, & 10. f. except r. accept. p. 31. l. 8. f. Qualitatem delicti r. Quantitatem delicti. p. 40. l. 21. r. referred. p. 44. l. 15. f. there r. here. p. 47. l. 35. f. this r. these p. 51. l. 1. f. pro r. per. p. 52 l. 24. f. pretect r. pretext, l. 25. f. pro r. per. p. 54. l. 25. f. pro r. per. p. 58. l. 4. f. incuria r. in curia. p. 65. l. 5. dele M in the Margent. p. 71. l. 27. f. ocitur r. oritur. p. [...]2. l. [...]1. f. edio [...]a r. odiosa. p. 79. l. 27. r. the infected. There are othe [...] Fault in Letters and Points, which are to be amended or understood, as the sense will shew in the reading.