THE Cry of the Innocent FOR JUSTICE: BEING A RELATION of the TRYAL of JOHN CROOK, and others, at the General Sessions, held in the Old Bayley, London; beginning the 25th. day of the 4th. Month, called June, in the year, 1662. Before the Lord Mayor of the City of London, and Recorder of the same, Chief Justice Forster, and divers other Judges and Justices of the Peace, so called.
Published for no other end but to prevent Mistakes, and to satisfie all moderate Enquirers, concerning the Dealings and Usages that the said J. C. and others met withal, from the beginning of the said Tryals to the end.
Alitur vitium, vivit (que) tegendo.
Eccles. 5. 8. If thou seest the Oppression of the poor, and violent perverting of Judgment and Justice in a Province, marvel not at the matter; for he that is higher than the highest regardeth, and there be higher than they.
Printed in the Year, 1662.
An EPISTLE to all moderate READERS.
MAny and great in all Ages unto this day have been the Afflictions, Tryals, and Oppressions of the Righteous, as have been foretold by the holy Prophets, Christ and his Apostles since the world began; yet God hath not left himself without Witness, both in preserving some in all Ages to testifie against the Idolatries and Oppressions of the days and times in which they lived; as also of his Judicial Appearances to punish the unjust and merciless Imposers on mens Consciences, because of their worshipping of God: for about That the first quarrel began, witness the Serpent tempting from the observance of God's Command, which he could not do by flat and plain denial, because of the positiveness of God's Command to man, saying, Thou shalt not eat of the Tree of Knowledge, &c. therefore he did it by interpreting or expounding of that Command, saying, It is because God knoweth that by eating thereof you shall be like him, knowing good and evil; and by this interpretation or meaning of the Devil (who was the first that ever put meanings to God's words) Man was deceived, and thus was Transgression brought in, and by the same means hath continued unto this day in the World; for as it was, so it is, God said to Man, Thou shalt not, but the deceiving spirit saith, that is not intended as it was spoken, for it hath a meaning, &c. And soon after Cain, the Devil's successor in Murder and Lying, falls upon righteous Abel, for no other cause than the worshipping of God according to his Conscience, in the Faith and Power of God, which was not consistent with Cain's hypocrisie and formality. And thus the Quarrel first began about Religion, whether power or form should bear sway, and by Religion it shall end; and therefore blessed are they for ever who are found faithful unto Death, for they shall have the Crown of Life; for sincerity shall prevail over hypocrisie, and the Power against all Idolatry and Formality; for the Lord hath spoken it.
And as Holy Writ furnisheth us with Examples in this matter, both as to Witnesses that have stood for God, against the Imposers on the Conscience, as Daniel, the three Children, Christ himself and his Apostles, with other Clouds of Witnesses; and also of his righteous Judgments [Page 4] upon the Oppressors and Imposers, as the Curse upon the Serpent, and the Plagues upon Pharoah, and the Brand upon Jeroboam the son of Nebat, who caused Israel to sin by his imposing; with many more that might be named.
So our Histories and Laws are not without Presidents in this case also, witness the Book of Martyrs, which testifies of the Sufferings of the Martyrs, how that they (as the Apostles did) suffered for bearing witness against, not only unrighteous persons, but unrighteous Laws also: for the Laws of the Kingdoms and Nations (in which they suffered, as well in England under the Christian Governors (so called) as in other parts) did require those things, or some of them [the denial of which] was the cause of their sufferings then, as it is of us now; and may be seen at large in those Books, from whence came the name Protestant, because they were Witnesses against the Unrighteousness and Idolatrousness of the times in which they lived, notwithstanding any Laws that were to the contrary; and as tokens of God's displeasure against these things, many eminent Judgments fell suddenly upon the Persecutors, as some by sudden death were taken away, others by bursting asunder, their bowels falling out in a wonderful manner, with like violent deaths, which for signal testimonies of God's Wrath and Fury, did fall upon many, to the astonishing of the beholders in those dayes.
And our Law-Books furnish us with several Acts of Justice that were executed upon unjust Judges for their not keeping unto the Laws and Rules of Justice, made and appointed both for the Peoples safety, and them to act by; as may be seen in King Alfred's time, mentioned in the Mirror of Justice, where it is recorded, that Forty four Judges or Justices were hanged in one year for their Injustice, whose Crimes may be seen as set down in the said Book.
And the Lord Cook (so called) Institutes, 3d part, cap. 2. pag. 23. saith thus: What damnable and damned opinions those were concerning High Treason, of Tresilian Chief Justice of the Kings Bench, Sir Robert Beltnap Chief Justice of the Common Bench, and others of their fellows; and of John Lockton one of the Kings Serjeants, &c. But (saith Cook) more detestable were the opinions of the Justices in the 21. of Rich. 2. and of Hanckford and Brinchley the Kings Serjeants, &c. These Justices and Serjeants were called in question afterwards in the Parliament holden Anno 1. Hen. 4. for their said opinions, answered, as divers Lords Spiritual and Temporal did, That they durst no otherwise do for fear of death: Yet were these two Chief [Page 5] Justices, and the rest aforesaid, attainted, for that it was (as the Parliament affirmed) for the great Honour and common Profit of the Realm.
And remarkable is that History, which tells us of a Corrupt Judge who was commanded to have his Skin taken off, and to be made as a Carpet or Covering, and to be in the view or sight of the Judgement Seat, to remain as a terror to all unjust Judges.
These, with many more Examples, are recorded in our Law-Books, and elsewhere, as Monuments of Justice against those that caused Injustice thus to be acted, and of Terror unto all Corrupt Judges, for the future to be afraid of the like Injustice. See Walter Rawleigh's Hist. World, lib. 3. chap. 4.
The CRY of the INNOCENT for JUSTICE.
I Have here collected the Proceedings of the now present Chief Justice of the King's Bench, with others of his Brethren, occasioned by a late Tryal before them at the Publick Sessions for the Peace and Goal-delivery, holden in the Old Baily, begun the 25. of the 4th month (called June) The Lord Mayor of the City of London and Sheriffs, with divers Justices and Aldermen then present.
VIZ.
What Meeting was that you were at?
I desire to be heard; Where is mine Accuser? for I expect the Issue will be brought forth, having been thus long in Prison.
Your tongue is your own, and you must not have liberty to speak what you list.
I speak in the presence and fear of the Everlasting God, that my tongue is not my own, for it is the Lords, and to be disposed of according to his pleasure, and not to speak my own words; and therefore I desire to be heard: I have been so long in Prison—Then he was interrupted by the Judge.
Leave your Canting; and commanded him to be taken away, which he was accordingly by the Jaylor. This was the substance of what the Prisoner aforesaid spake the first time.
Call John Crook to the Bar, which the Cryer did accordingly, he being amongst the Felons as aforesaid.
When did you take the Oath of Allegiance?
I desire to be heard.
Answer to the Question, and you shall be heard.
I have been about six weeks in Prison, and am I now called to accuse my self? For the answering to this Question in the Negative is to accuse my self, which you ought not to put me upon; for, nemo debet seipsum prodere. I am an English-man, and by the Law of England I ought not to be taken nor imprisoned, nor deseired of my Free-hold, nor called in question, nor put to answer, but according to the Law of the Land; which I challenge as my Birthright, on my own behalf, and all that hear me this day (or words to this purpose) I stand here at this Bar as a Delinquent, and do desire that my Accuser may be brought forth to accuse me for my Delinquency, and then I shall answer to my Charge (if any I be guilty of.)
You are here demanded to take the Oath of Allegiance, and when you have done that, then you shall be heard about the other; for we have power to tender it to any man.
Not to me upon this occasion, in this place; for I am brought hither as an Offender already, and not to be made an Offender here, or to accuse my self; for I am an English-man, as I have said to you, and challenge the benefit of the Laws of England; for by them, is a better Inheritance derived to me as an English-man, than that which I receive from my Parents; for by the former the latter is preserved: and this the 29th Chapter of Magna Charta, and the Petition of Right, mentioned in the 3d of Car. 1. and in other good Laws of England; and therefore I desire the benefit and observance of them: And you that are Judges upon the Bench ought to be my Counsel, and not my Accusers, but to inform me of the benefit of those Laws; and wherein I am ignorant you ought to inform me, that I may not suffer through my own ignorance of those advantages which the Laws of England afford me as an English-man.
I here give thee a brief Account of my Taking and Imprisoning, that thou mayest the better judge what Justice I had from the Court aforesaid, which is, as followeth.
[Page 7] I being in Johns-street London, about the 13th day of the 3d month (called May) with some others of the People of God, to wait upon him, as we were sate together, there came in a rude man (called Miller) with a long Cane in his hand, who laid violent hands upon me, with some others, beating some, commanding the Constables who came in after him; but having no Warrant, were not willing to meddle, but as his threatnings prevailed, they being afraid of him, joyned with him to carry several of us before Justice Powel (so called) who the next day sent us to the Sessions at Hicks's-Hall; where, after some discourse several times with them, manifesting to them the Illegality both of our Commitment, and their Proceedings thereupon; yet notwithstanding, they committed me and others, and caused an Indictment to be drawn against us, founded upon the late Act against Quakers and others, and then remanded us to New-Prison, where we continued for some dayes, and then removed to Newgate, where we remained until the Sessions in the Old Bailey aforesaid; whereby thou mayest understand what Justice I met withal, by what went before, and now further follows.
We sit here to do Justice, and are upon our Oaths, and we are to tell you what is Law, and not you us: Therefore sirrah you are too bold.
Sirrah is not a word becoming a Judge; for I am no Felon; neither ought you to menace the Prisoner at the Bar: for I stand here arraigned as for my Life and Liberty, and the Preservation of my Wife and Children, and outward Estate, [they being now at the stake;] Therefore you ought to hear me to the full what I can say in my own Defence, according to Law, and that in its season, as it is given me to speak: Therefore I hope the Court will bear with me, if I am bold to assert my Liberty as an English-man and as a Christian: and if I speak loud, it is my Zeal for the Truth, and for the Name of the Lord; and mine Innocency makes me bold—
It is an evil zeal, interrupting John Crook.
No, I am bold in the Name of the Lord God Almighty, the everlasting Jehovah, to assert the Truth, and stand as a Witness for it: Let my Accuser be brought forth, and I am ready to answer any Court of Justice—
Then the Judge interrupted me, saying, Sirrah, with some other words I do not remember: but I answered, You are not to threaten me, neither are those menaces fit for the mouth of a Judge: for the [Page 8] safety of a Prisoner stands in the indifferency of the Court; And you ought not to behave your selves as Parties; seeking all advantages against the Prisoner, but not heeding any thing that may make for his clearing or advantage—The Judge again interrupted me, saying,
Sirrah, you are to take the Oath, and here we tender it you
Let me see mine Accuser, that I may know for what cause I have been six weeks imprisoned, and do not put me to accuse my self by asking me Questions; but either let my Accuser come forth, or otherwise let me be discharged by Proclamation, as you ought to do—Here I was interrupted again.
We take no notice of your being here otherwise than of a stragler, or as any other person, or of the people that are here this day; for we may tender the Oath to any man. And another Judge spake to the like purpose.
I am here at your Bar as a Prisoner restrained of my liberty, and do question whether you ought in Justice to tender me the Oath on the account I am now brought before you, because I am supposed to be an Offender, or else why have I been six weeks in Prison already? let me be cleared of my Imprisonment, and then I shall answer to what is charged against me, and to the question now propounded; for I am a lover of Justice with all my soul, and am well known by my Neighbours where I have lived, to keep a Conscience void of Offence both towards God, and towards man.
Sirrah, leave your Canting.
Is this Canting, to speak the words of the Scripture?
It's Canting in your mouth, though they are Paul's words.
I speak but the words of the Scripture, and it is not canting though I speak them, but they are words of truth and soberness in my mouth, they being witnessed by me, and fulfilled in me.
We do ask you again, whether you will take the Oath of Allegiance? it is but a short Question, you may answer it if you will.
By what Law have you power to tender it? Then, after some Consultation together by whispering, they called for the Statute-Book, and turning over the leaves, they answered,
By the 3d of King James.
I desire that Statute may be read; for I have consulted it, and do not understand that you have power by that Statute to tender me the Oath, being here before you in this place upon this occasion, as a Delinquent already; and therefore I desire the Judgment of the [Page 9] Court in this Case, and that the Statute may be read.
Then they took the Statute-Book and consulted together upon it, and one said, We are the Judges of this Land, and do better understand our Power than you do, and we do judge We may lawfully do it.
Is this the Judgment of the Court?
Yes.
I desire the Statute to be read that impowers you to tender the Oath to me upon this occasion in this place; for, Vox audita perit, set litera scripta manet, therefore let me hear it read.
Hear me.
I am as willing to hear as to speak.
Then hear me: You are here required to take the Oath by the Court, and I will inform you what the Penalty will be in case you refuse: for, your first denial shall be recorded, and then it shall be tendered to you again at the end of the Sessions, and upon the second refusal you run a Premunire, which is the forfeiture of all your Estate (if you have any) and Imprisonment during life.
It is Justice I stand for; let me have Justice, in bringing my Accuser face to face, as by Law you ought to do, I standing at your Bar as a Delinquent; and when that is done, I will answer to what can be charged against me, as also to the Question; until then I shall give no other Answer than I have already done, (at least at present.)
Then there was a Cry in the Court, Take him away, which occasioned a great interruption, and J. C. spake to this purpose, saying, Mind the Fear of the Lord God, that you may come to the knowledge of his Will, and do Justice; and take heed of oppressing the Innocent, for the Lord God of Heaven and Earth will assuredly plead their Cause: and for my part, I desire not the hurt of one of the hairs of your heads, but let God's Wisdom guide you. These words he spake at the Bar, and as he was carrying away.
On the sixt day of the week in the forenoon following, the Court being sate, John Crook was called to the Bar.
Friend Crook, We have given you time to consider of what was said yesterday to you by the Court, hoping you may have better considered of it by this time: therefore, without any more words, will you take the Oath? and called to the Clerk, and bid him read it.
I did not, neither do I deny Allegiance, but do desire to know the Cause of my so long Imprisonment; for, as I said, I stand at your [Page 10] Bar as a Delinquent, and am brought hither by force, contrary to the Law; therefore let me see my Accuser, or else free me by Proclamation, as I ought to be, if none can accuse me: For the Law is grounded upon right Reason, and whatsoever is contrary to right Reason, is contrary to Law; and therefore if no Accuser appear, you ought to acquit me first, and then I shall answer, as I have said, If any new matter appear, otherwise it is of force, and that our Law abhors, and you ought not to take notice of my so being before you; for what is not legally so, is not so; and therefore I am in the condition, as if I were not before you: and therefore it cannot be supposed in right Reason, that you have now power at this time, and in this place legally to tender me the Oath.
Reade the Oath to him, and so the Clerk began to reade.
I desire Justice according to the Laws of England: for you ought first to convict me concerning the cause of my so long Imprisonment: for you are to proceed according to Laws already made, and not to make Laws; for you ought to be Ministers of the Law.
You are a saucy and an impudent fellow; will you tell us what is Law, or our duties? Then said he to the Clerk, Reade on; and when the Clerk had done reading,
said, Reade the Preface to the Act; I say again, reade the Title and Preamble to the Act; for Titles to Laws, are Claves Legum, as keys to open the Law; for by their Titles Laws are understood and known, as men by their faces. Then the Judges would have interrupted me, but I said as followeth, If you will not hear me, nor do me Justice, I must appeal to the Lord God of Heaven and Earth, who is Judge of quick and dead, before whom we shall all appear to give an account for the deeds done in the body; for he will judge between you and me this day, whether you have done me justice or not?
These words following (or the like) I spake as going from the Bar, being pulled away, viz. Mind the Fear of the Lord God, that you may do Justice, lest you perish in his Wrath: For sometimes the Court cryed, Pull him away, and then said, Bring him again; and thus they did several times, like men in confusion and disorder.
Mr. Crook, You have heard your Indictment, what say you, Are you Guilty, or not Guilty?
I desire to speak a few words in humility and soberness, in regard my Estate and Liberty lies at stake, and am like to be a President for many more; therefore I hope the Court will not deny me the right and benefit of the Law, as being an English-man; I have some reason, before I speak any thing to the Indictment, to demand and tell you, that I desire to know mine Accusers; I have been kept this six weeks in Prison, and know not, nor have not seen the faces of them.
We shall afford you the right of the Law as an English-man, God forbid you should be denied it; but you must answer first, Guilty, or not Guilty, that so in your Tryal you may have a fair hearing and pleading; but if you go on as you do (and will not answer Guilty, or not Guilty) you will run your self into a Premunire, and then you lose the benefit of the Law, and expose your self, Body and Estate, to great Hazards; and whatever Violence is offered to your Person or Estate, you are out of the King's Protection, and lose the Benefit of the Law, and all this by your not answering (Guilty, or not Guilty) If you plead not Guilty, you may be heard.
It is recorded in the Statutes of the 28. Edw. 3. and 3. and 42. Edw. 3. & 3. in these words, No man is to be taken, or imprisoned, or be put to answer without presentment before Iustices, or matter of Record, or by due Process, or Writ-original according to the old Law of the Land; and if any thing from henceforth be done to the contrary, it shall be void in Law, and holden for Error: and also in the 25 of Edw. 1. 2. and the 3. Car. 1. and the 29. cap. Mag. Chart. No Freeman shall be taken and imprisoned but by the Law of the Land; These words [The Law of the Land] are explained by the Statute of 37 Edw. 3. 8. to be without due process of Law: and if any Judgments be given contrary to Mag. Chart. they are void, 25 Edw. 1. 2.
Mr. Crook, you are out of the way, and do not understand the Law; though you adore the Statute Law so much, yet you do not understand it.
I would have you tell me the right way.
Mr. Crook, hear me, You must say, Guilty, or not Guilty; If you plead not Guilty, you shall be heard, and know how far the Law favors you. And the next thing is, there is no Circumstance whatsoever that is the Cause of your Imprisonment that you question, but you have as a Subject, your remedies, if you will go this way, and wave other things, and answer Guilty, or not Guilty; and what the Law affords you, you shall have, if you do what the Law requires you, or else you will lose the Benefit of the Law, and be out of the King's Protection.
Observe how the Judge would draw me into a snare, viz. by first pleading (Guilty, or not Guilty) and when I have done so, he and his Brethren intend suddenly to put me (as an out-law'd person) out of the King's Protection; and how then can I have remedy for my false Imprisonment? Therefore first clear me, or condemn me for my false Imprisonment, while I am in a capacity to have the benefit of the Law, and not to out-law me for an Offence created by your selves, and then to stop my mouth, you tell me, that if I have been wronged or false imprisoned, I may have my remedy afterwards; this is to trapan me, and contrary to both Law and Justice, &c.
You must plead Guilty, or not Guilty.
I do desire in humility and meekness to say, I shall not, I dare not betray the honesty of my Cause, and the honest Ones of this Nation, whose Liberty I stand for as well as my own, as I have cause to think I shall, if I plead to the present Indictment before I see the faces of my Accusers; for truly, I am not satisfied in my Judgment and Conscience that I ought to plead to a created Offence by you, before I be first acquitted of the Cause of my being brought Prisoner to your Bar, and therefore it sticks with me to urge this further, viz. that I may see my Accusers.—Interruption.
The errandest Thief may say he is not satisfied in his Conscience.
My Case is not theirs, yet they have their Accusers; and may not I call for mine? and therefore call for them, for you ought to do so, as Christ said to the Woman, (Woman, where are thine Accusers?) so you ought to say to me, (Man, where are thine Accusers?)—Interrupted.
Your Indictment is your Accuser, and the Grand Jury hath found you Guilty, because you did not swear; what say you Mr. Crook, are you Guilty, or not Guilty? If you will not answer, or what you have said be taken for your Answer, as I told you before, you lose the benefit of the Law; and what I tell you is for your good.
What is for good I hope I shall take it so.
If you will not answer, you run your self into a Premunire, and you will lose the Benefit of the Law, and of the King's Protection, unless you plead Guilty, or not Guilty.
I stand as brought forcibly and violently hither, neither had I been here but by a violent action, and that you should take no notice of it, seems strange to me; and not only so, but that you should hasten me so fast into a course that I should not be able any wayes to [Page 13] help my self, by reason of your so hasty and fast proceedings against me to put put me out of the King's Protection, and the Benefit of all Law; was ever the like known or heard of in a Court of Justice!
Friend, this is not here in question, whether you are unjustly brought here, or not; Do you question that by Law, but not disable your self to take Advantage by the Law; if brought by a wrong hand, you have a Plea against them, but you must first answer Guilty, or not Guilty.
How can I help my self when you have out-lawed me? Therefore let Proclamation be made in the Court, That I was brought by force hither, and let me stand cleared by Proclamation, as you ought to do; for you are discernere per Legem, quid sit justum, and not to do what seems good in your own eyes, (here I was interrupted again) but might have spoken Justice Crook's words in Hamden's Case, who said, That we who are Judges speak upon our Oaths, and therefore must deliver our Judgements according to our Consciences; and the fault will lie upon us if it be illegal, and we deliver it for Law: and further said, We that are Judges must not give our Judgments according to Policy, or Rules of State, nor Conveniencies, but only according to Law. These were his words, which I might have spoken, but was interrupted.
What though no man tendred the Oath to you when you were committed (as you say) it being now tendred to you? From the time you refused it, being tendred to you by a lawful Authority, you refusing, are indicted; We look not upon what you are here for, but here finding you, we tender you the Oath, and you refusing it, your Imprisonment is now just and according to Law. (Something omitted which I spake afterwards.)
How came I here, if you know not? I have told you it is by force and violence, which our Law altogether condemns; and therefore I not being legally before, am not before you; for what is not legally so, is not so; and I not being legally brought to your Bar, you ought not to take notice of my being here.
No, no, you are mistaken: so you may say of all the People gazing here, they not being legally here, are not here. I tell you a man being brought by force hither, we may tender him the Oath, and if he take it not, he may be committed to Prison; Authority hath given us the power, and the Statute-Law hath given us authority to tender the Oath to any person, and so have we tendred it you, and for your not taking of it, you are indicted by the Grand Jury; Answer the [Page 14] Accusation, or confute the Indictment, you must do the one or the other; answer Guilty, or not Guilty.
(I. Cr. Here I was interrupted, but might have said, that the People that were Spectators, beholding and hearing the Tryals, are not to be called Gazers, as the Judge terms them, because it is their Liberty and Priviledge as they are English-men, and the Law of England allows the same, so that they are not to be termed Gazers upon this account, but are legally in that place, to hear Tryals and see Justice done, and might have spoken (if occasion had been) any thing in the Prisoners defence, tending to clear up the matter in difference, and the Court must have heard them or him, and this as a stander-by, or Amicus curiae, so saith Cook.)
The Law is built upon right Reason, or right Reason is the Law; and whatever is contrary to right Reason, is contrary to Law, the Reason of the Law being the Law it self. I am no Lawyer, and my knowledge of it is but little, yet I have had a love to it, for that Reason I have found in it, and have spent some leisurable hours in the reading thereof; and the Law is that which I honour, and is good in its place; many Laws being just and good (not all) but I say a great part of it, or much of it, and that is not my intention in the least to disparage or derogate from.
Mr. Crook, You have been told you must plead Guilty, or not Guilty, or else you will run your self into a Premunire; be not your own enemy, nor be not so obstinate.
I would not stand obstinately before you, neither am I so; if you understand it otherwise, it is a mistake indeed.
Will you speak to the Indictment? and then you may plead: If you will not answer Guilty, or not Guilty, we will Record it, and Judgment shall go against you. Clerk, enter him.
Mr. Crook, If you will answer you may plead for your self, or will you take the Oath? The Court takes no notice how you came hither; What say you, will you answer? For a man may be brought out of Smithfield by head and shoulders, and the Oath tendred to him, and may be committed, without taking notice how he came here.
That kind of Proceeding is not only unjust but unreasonable also—(here was some interruption) and against the Laws aforesaid, which say, No man shall be taken, or imprisoned, but by Warrant, or due Process of Law; so that this speech of the Recorders savours more of Passion than Iustice, and Cruelty than due observance [Page 15] of Law: for every forcible restraint of a man's Liberty is an Imprisonment in Law. Besides, This kind of practice, to take men by force and imprison them, and then ask them Questions, the answering of which makes them guilty, is not only unrighteous in it self, but against Law, and makes one evil act the ground of another, and one injury offered to one the foundation of another; and this is my Case this day—Interruption.
Mr. Crook, you must not be your own Iudge, we are your Iudges; but for our parts we will not wrong you: Will you answer Guilty, or not Guilty? if not, you will run your self into a Premunire unavoidably, and then you know what I told you would follow; for we take no notice how you came hither, but finding you here we tender you the Oath.
Then it seems You make the LAW a Trapan to ensnare me, or as a Nose of Wax, or what you please: Well! I shall leave my Cause with the Lord God, who will plead for me in Righteousness. But suppose I do take the Oath [now] at this time, you may call me again [to morrow] and make a new tender; or others may call me before them.
Yes, if there be new matter; or, if there fall out any emergent occasion, whereby you minister on your part new occasion: Mr. Crook, will you swear?
If I do take it to day, it may be tendred me again to morrow, and so next day, ad infinitum; whereby a great part of my time may be spent and taken up in taking the Oath and swearing.
When you have [once] sworn, you may not be put upon it again, except you minister occasion on your part.
Is this the Judgement of the Court, that the Oath [once] taken by me is sufficient, and ought not to be tendred a second time, without new matter ministred on my part?
Yes, you making it appear you have [once] taken it.
Is this the Iudgment of the whole Court? for I would not do any thing rashly.
Yes, it is the Iudgement of the Court; to which they all standing up, said, Yes.
Then it seems there must be some new occasion ministred by me after I have [once] taken it, or it ought not to be tendred to me the second time.
Yes.
Then by the Iudgment of this Court, if I make it appear [Page 16] that I have taken the Oath [once] and I have ministred no new matter on my part, whereby I can be justly charged with the breach of it, then it ought not to be tendred me the second time; But I am the man that have taken it [once) being a Freeman of the City of London, when I was made free, witness the Records in Guild-hall, which I may produce, and no new matter appearing to you on my part, If there do, let me know it; if not, you ought not by your own Iudgment to tender me it the second time, for, de non apparentibus, & non existantibus eadem Ratio est—Interrupted by the shout of the Court, when these last words might have been spoken.
Mr. Crook you are mistaken, you must not think to surprize the Court with Critiscisms, nor draw false conclusions from our Iudgments.
If this be not a natural conclusion from the Iudgment of the Court, let right Reason judge; and if you recede from your own Iudgments in the same breath (as it were) given even now, what Iustice can I expect from you? for, if you will not be just to your selves and your own Iudgments, how can I expect you should be just to me?
Mr. Crook, If you have taken it, if there be a new emergency, you are to take it again; as for instance, The King hath been out of England, and now is come in again, there be many have taken it twenty, thirty, or forty years since, yet this new emergency requires it again; and although you have taken it, yet you must not make it appear before you answer Guilty, or not Guilty; Therefore do not wrong your self, and prejudice your self and Family: Do you think that every fellow that comes hither shall argue as you do? we have no more to do but to know of you whether you will answer (Guilty, or not Guilty) or take the Oath, and then you shall be freed from the Indictment; if you will not plead, Clerk record it; What say you? are you Guilty, or not Guilty?
Will you not stand to your own Iudgments? did you not say even now, that if I had (once) taken the Oath, it ought not to be tendred to me the second time, except I administred new matter on my part that I have not kept it, &c. but no such matter appearing, you ought not to tender it to me the second time by your own confession, much less to indict me for refusal.
If you will not plead, we will record it, and Judgment shall be given against you; Therefore say, Guilty, or not Guilty, or else we will record it.
Before I answer, I demand a Copie of my Indictment; for I [Page 17] have heard it affirmed by Counsel learned in the Law, That if I plead before I have a Copie, or have made my Exceptions, my Exceptions afterwards against the Indictment will be made void: Therefore I desire a Copie of the Indictment.
He that said so, deserves not the name of a Counsel: for the Law is, You must first answer, and then you shall have a Copie. Will you plead, Guilty, or not Guilty?
If my pleading Guilty, or not Guilty, will not deprive me of the benefit of quashing the Indictment for insufficiency, or other Exceptions that I may make against it, I shall speak to it.
No, it will not. Will you answer, Guilty or not Guilty? If you plead not, the Indictment will be found against you: Will you answer? we will stay no longer.
I am upon the point; Will not my pleading deprive me of the benefit of the Law? for I am tender in that respect, because it is not my own Case [only] but may be the Case of [thousands] more; Therefore I would do nothing that might prejudice others or my self, as a Christian, or as an English-man.
Understand your self, (but we will not make a bargain with you, said another Judge) you shall have the Right done you as an English-man, the way is to answer, Guilty or not Guilty: If you plead, and find the Indictment not good, you may have your Remedy; Answer Guilty or not Guilty.
As to the Indictment it is very large, and seems to be confused, and made up of some things true, and some things false; my Answer therefore is, What is true in the Indictment I will not denie, because I make conscience of what I say, and therefore, Of what is true, I confess my self Guilty, but what is false I am not Guilty of that.
That is not sufficient: either answer Guilty, or not Guilty, or Judgment will be given against you.
I will speak the truth as before the Lord, as all-along I have endeavoured to do, I am not Guilty of that which is false contained in the Indictment, which is the substance thereof.
No more ado, the form is nothing, Guilty, or not?
I must not wrong my Conscience, I am not Guilty of what is false, as I said before, what is true I am Guilty of: what is not true I am not Guilty of that, which is the substance thereof, as I said before.
It is enough, and shall serve turn.
[Page 18]The seventh day of the week, called Saturday.
I desire to be heard a few words, which are these, That we may have liberty till the next Quarter-Sessions to traverse the Indictment, It being long, and in Latine, and like to be a President; And I hope I need not press it, because I understood that you promised, (and especially the Recorder, who answered (when it was desired) you shall) that we should have Counsel also, the which we cannot be expected to have had the benefit of, as yet, the time being so short, and we kept Prisoners that we could not go forth to advise with Counsel, neither could we tell how to get them to us: We having no Copy of the Indictment before this morning, and because so suddenly hurried down to the Sessions, we cannot reasonably be supposed to be provided (as to matter of Law) to make our Defence.
We have given you time enough, and you shall have no more; for we will try you at this time, therefore swear the Jury.
I desire we may have Justice, and that we may not be surprized in our Tryal, but that we may have time till the next Quarter-Sessions, our Indictment being in Latine, and so large as it is; and this is but that which is reasonable, and is the practice of other Courts: for, if it be but an Action above forty shillings, it is not ordinarily ended under two or three Terms. And in the Quarter-Sessions if one be indicted, for a Trespass, if it be but to the value of five shillings, he shall have liberty to enter his Traverse, and, upon Security given to prosecute, he shall have liberty till the next Sessions, which is the ordinary practice; which liberty we desire, and we hope it is so reasonable it will not be denyed, especially upon this occasion, we being like to be made a President; And Courts of Justice have used, to be especially careful in making of Presidents, for we are not provided according to Law to make our Defence at this time, and therefore if we be put upon it, it will be a surprizal.
There is no great matter of Law in the Case, it is only matter [Page 19] of Fact, Whether you have refused to take the Oath or not; that is the point in issue: And what Law can arise here?
Mr. Crook, The Keeper of the Prison was spoken to, to tell you that we intended to try you this day, and therefore ordered him that Counsel might come to you if you would, and also that the Clerk should give you a Copie of the Indictment: This is fair, Therefore we will go on to swear the Jury; for the matter is, Whether you refuse the Oath, or not? and that is the single point, and there needs neither Law nor Counsel in the Case; and therefore we considered of it last night, when we sent you word and did determine to try you, and therefore it is in vain to say any thing, for the Court is resolved to try you now, Therefore swear the Jury, Cryer.
I hope you will not surprize us: Then the other Prisoners (who also were endited) cryed out (having spoke something before) Let us have Justice, and let not the Jury be sworn till we be first heard; so there was a great noise, the Court being in a confusion, some crying, Take them away; others, Stay, let them alone; others saying, Go on to swear the Jury, which the Cryer in this uproar and confusion did do something, as if he had done it; Then we all cryed out for Justice, and Liberty till the next Sessions; the Court being in a confusion, some crying one thing, and some another, which now cannot be called to mind, by reason of the great distraction that was in the Court, neither what we said to them, nor they to us, the noise was so great, and the Commands of the Court so various to the Officers, some commanding them to take us away, others, to let us alone, others, to bring us nearer, others cryed, put them into the Bail-Dock, others, to put them within the furthest Bar where the Felons use to stand, where we were forc'd into accordingly; and in this hurliburly and confusion that was amongst them, some men were sworn to testifie that we refused to take the Oath, which we never positively did; other Officers of the Court, whom they would have sworn, refused to swear, though pressed to it by the Chief Justice, they desiring to be excused. Then spake one of the Prisoners again pretty much, but could hardly be understood by reason of the noise in the Court, but the People, to whom he spake with a loud voice by way of exhortation, might hear the substance of what he said, which cannot now particularly be called to mind; but it was to express the presence and love of God to himself, and to exhort others to mind his Fear, that they also might be acquainted with God, &c.
Stop his mouth, Executioner; which was accordingly done.
Then we cryed out, Will you not give us leave to speak for our selves? We except against some of the Jury, as being our Enemies, and some of them who by force commanded us to be pulled out of our Meetings, contrary to Law, and carried us to Prison without Warrant, or other due Process of Law; and shall these be our Judges? we except against them.
It is too late now, you should have done it before they had been sworn Jury-men. Jury go together, that which you have to find, is, Whether they have refused to take the Oath or no, which hath been sworn before you that they did refuse? you need not go from the Bar; and like words said the Recorder and others, there being a confusion and noise in the Court, many speaking together.
Then we cryed for Justice, and that we might be heard, to make our Defence before the Jury gave their Verdict: but the Judge and Recorder said, we should not be heard, (making good by their practice what the Chief Judge had said the day before, viz. That if we had liberty to speak, we would make our selves famous and them odious) crying again, Stop their mouths Executioner, which was done accordingly, with a dirty cloth, and also endeavoured to have gagg'd me J. C., striving to get hold of my tongue, having a Gag ready in his hand for that purpose, and so we were served several times; Then I called out with a loud voice, Will you condemn us without hearing? This is to deal worse with us than Pilate did with Christ, who though he condemned him without a cause, yet not without hearing him speak for himself; but you deny us both.
Let Mr. Grey come to the Bar (room being made) he was conveyed by an Officer to the inner Bar, where he spake to the Court on this purpose: I desire to know whether according to Law and the practice of this Court, my self and my fellow-Prisoners, may have liberty to put in Bail to prosecute our Traverse at the next Sessions?
No, we will try you presently.
Stop their mouths Executioner: and this was the cry of many upon the Bench, they being still in a continued confusion, some crying to the Jury, Give in your Verdict, for we will not hear them, with other words which could not be heard for the noise, the Court being in confusion.
You might as well have caused us to have been murdered before we came hither, as to bring us hither under pretence to try us, and not give us leave to make our Defence; you had as good take away our Lives at the Bar, as to command us thus to be abused, and [Page 21] to have our mouths stopt: Was ever the like known? let the Righteous God judge between us. Will you hear me? you have often promised that you would.
Hear me, and we will hear you; then he began to speak, and some others of the Bench interrupted him, sometimes they speaking two or three at a time, and a noise amongst the Officers of the Court: but the Judge said, We may give you liberty till the next Sessions, but we may chuse; and therefore we will try you now.
I bade the People take notice of their Promise that I should have liberty to speak, saying, see now you be as good as your words.
The Law of England is not only just but merciful, and therefore you shall not be surprized, but shall have what Justice the Law allows—Interruption.
I remember what the Judge said even now, that the Law of England was a MERCIFUL Law, that the Court had said before, they might, if they would, give us liberty till the next Sessions, but they would not; and the Maxime of the Law also is, Summun Jus, est summa Injuria, therefore I hope your practice will make it good, that it is a Merciful Law, and not to execute summum jus, &c. upon me, and thereby condemn your selves out of your own mouths.
Jury, give in your Verdict.
Let me have liberty first to speak, it is but few words, and I hope I shall do it with what brevity and pertinency my understanding will give me leave, and the occasion requires, it is to the point in these two heads, viz. matter of Law, and matter of Conscience: to matter of Law I have this to say, first, as to the Statute it self, it was made against the Papists, occasioned by the Gunpowder-Plot; and is entituled, For the better discovery and suppressing of Popish Recusants: but they have liberty, and we are destroyed, what in you lyes—(Interrupted by the Judges and disturbance of the Court) As to Conscience I have something to say, and that is, It is a tender thing, and we have known what it is to offend it, and therefore we dare not break Christ's Commands, who hath said, Swear not at all; and the Apostle James said, Above all things, my Brethren, swear not—(interrupted) the Court calling again to the Executioner to stop my mouth, which he did accordingly with his dirty cloth as aforesaid, and his Gag in his hand.
Hear the Jury, who said something to him, which was supposed to give in the Verdict according to his order, for they were fit for his purpose as it seems, they beginning to lay their heads together [Page 22] before we had spoke any thing to them, only upon his words.
Cryer, make Silence in the Court; then the Recorder taking a Paper into his hand, read to this purpose, viz. The Jury for the King do find that John Crook, John Bolton, and Isaac Grey are Guilty of Refusing to take the Oath of Allegiance, for which you do incur a Premunire, which is the forfeiture of all your real Estates during life, and your personal Estates for ever, and you to be out of the King's Protection, and to be imprisoned during his pleasure: and this is your Sentence.
But we are still under God's Protection.
Adjourn the Court; which was done accordingly, and we remanded to Newgate, where we remain Prisoners.
Now follows a Copy of the Indictment, with some Notes and Observations on the same; whereby it may appear how false it is, and how easily it might have been quasht for insufficiency, had we been allowed time (which by Law they ought to have granted) and been suffered to have made our own Defence; but that they would not do, but stopt our mouthes, as before is said, by the hands of the Executioner, to prevent what otherwise (as the Judge said) might have come to pass, viz. by having liberty to make our Defence, by that means we should make our selves famous, and them odious.
JUr. pro Dno. Rege super sacru. suu. presentant qd. Ad. General. London Sess. Quarteral. Session. Pacis Dni. Regis tent. pro Civitat. London apud Guihald. ejusdem Civitat. die Mercurij scilt. vicessimo quinto die Junij Anno Regni Dni. n'ri. Caroli sc'di Dei gra. Angliae, Scot' Franc' & Hiberniae Regis Fidei defensor. &c. quarto decimo, coram Joh. Frederick Milite Majore Civitat. London. Thoma Adams Milite & Baronet, Rico' Browne Milite & Baronet, & Thoma Aleyn Milite & Baronet, Aldr'is d'ce Civitat. ac al. Sociis suis Justic. dci. d'ni Regis ad Pacem in Civitat. pred. conservand. Necnon ad diver's felon. transgr. & al. malef'ca infra eandem Civitat. perpetrat audiend. & terminand. assign. Sessio. ista pacis adjornat. fuit per prefat. Justic. dc'i d'ni Regis ib'm us (que) diem Jovis scilt. vicessim. sext. diem ejusdem mensis Junij anno supradicto ad horam septimam ante merid. ejusdem dici apud Justicehall in le Old Bailey in Paroch. sci. Sepulchri in Warda de Farringdon extra London pred▪ tenend. coram prefat. Justic. & al. Sociis suis ad faciend. ulterius prout Cur. Con. &c. Ac [Page 23] ad eundem diem Jovis vicessimum sextum diem Junii Anno quarto decimo supradicto General. Quarterial. Sessio ista pacis tent. fuit pro Civitat. London pred. per adjornament pred. apud Justicehall pred. in Paroch & Ward pred. coram praefat Johe. Frederick Milite Majore Civitat. London, Thoma Adams Milite & Baronet, Ricardo Browne Milite & Baronet, & Thoma Aleyn Milite & Baronet, Aldr'is d'ce Civitat. ac Willo Wilde Milite & Baronet, uno Servien. dc'i. dni Regis ad Legem ac Recordator. Civitat. pred. Ac al. Sociis suis Justic. d'ci D'ni Regis ad Pacem in Civitat. pred. conservand. Necnon ad divers. felon. transgr. et al. malefa. infra eandem Civitat. perpetrat. audiend. & terminand assign. Ac adtunc & ibm. praed. General. Quarterial. Sessio Pacis pred. ulterius adjornat. fuit per prefat. Justic. us (que) diem Veneris scilt. vicessim. septim. diem dci. mensis Junii Anno quarto decimo supradicto, ad horam septimam ante merid. ejusdem diei apud Justicehall pred. in Parochia & Warda praed. tenend. coram praefat. Justic. & al. Sociis suis ad faciend. ulterius prout Cur. Con. Ac superinde ad istant eandem General. Quarteral. Session. Pacis tent. pro Civitat. London. per Adjornament praed. apud Justicehall praed. in Paroch. & Warda praed. dco die Veneris vicessimo septimo die Junii Anno quarto decimo supradicto, coram praefat. Johe. Frederick Milite Majore Civitat. London' Thoma Adams Milite & Baronet, Rico. Brown Milite & Baronet, This is Error, for R. C. Ar. was not before named. Rico. Chiverton Armigero, & Thoma Aleyn Milite & Baronet, Aldr'is d'ce Civitat. Ac Willo Wilde Milite & Baronet. uno Servien. dci' D'ni Regis ad Legem ac Recordator. ejusdem Civitat. ac al Sociis suis Justic. d'ci D'ni Regis ad Pacem in Civitat. praed. conservand. Necnon ad divers. felon. transgr. & al malef'ca infra eand. Civitat. perpetrat. audiend. & terminand. assign. in aperta General. Quarterial. Session. praed. praefat. Justiciar. Pacis, ult. noiat. existentes major pars Justic. Pacis ipsius D'ni Regis infra d'cam Civitat. London' ad tunc scilt. dco. vicessimo septimo die Junii Anno quarto decimo supradco apud dcam Paroch. Sci. Sepulchri in Warda de Farringdon extra London. praed. presen. existend. obtuler. Anglie die tender Johi Crooke nuper de London Generoso, Johi Bolton nuper de London Aurifabro, & Isaac. Gray nuper de London. Generoso & eor. cuilibt seperatim per se (ad tunc existen. & cuilibt. eor. existen. ultra etat. octodecim. Annor. This is Error, because it's not said, et subditi d'ni Regis.) Jurament. content. in quodam [Page 24] Actu in Parliament. Dni. Jacobi nuper Regis Angliae tent. per Prorogationem This should be Prorogationes, for there vvas a double Prorogation.: apud Westm. in Com. Middles. quinto die Novembris Anno. Regni sui Angliae, Franc. et Hiberniae tertio, et Scotiae tricesimo nono nuper edit. et pro vis in hijs Anglicanis verbis sequen. viz. I This is Error, because it wants A. B. do truly and sincerely acknowledge, profess, testifie and declare in my conscience before God and the world, that our sovereign Lord King Charles the second It ought to be with some expression of mutatis mutandis, of the name of K. Charles the second, instead of King James, who is only named in the Act. This is Error, it's not agreeable to the Statute; for that saith onely King James: and certainly the Statute intended no otherwise; for its said, for the tryal of his Majesties Subjects, how they stand affected, &c. and not the Subjects of his Majesties Heirs and Successors. is lawful and rightfull King of this Realm, and of all other his Majesties Dominions and Countries; And that the Pope, neither of himself, nor by any Authority of the Church or Sea of Rome, or by any other means with any other, hath any power or authority to depose the King, or to dispose of any of his Majesties Kingdoms or Dominions, or to authorize any forreign Prince to invade or anoy him or his Countries, or to discharge any of his Subjects of their Allegiance and Obedience to his Majesty, or to give licence or leave to any of them to bear Arms, raise Tumults, or to offer any violence or hurt to his Majesties Royal Person, State or Government, or to any of his Majesties Subjects within his Majesties Dominions. Also I do swear from my heart, that notwithstanding any Declaration, or sentence of Excommunication or Deprivation made or granted, or to be made or granted by the Pope or his Successors, or by any Authority derived or pretended to be derived from him or his Sea, against the said King, his Heirs or Successors, or any Absolution of the said Subjects from their Obedience. I will bear Faith and true Allegiance to his Majesty his Heirs and Successors, and him and them will defend to the uttermost of my power, against all Conspiracies and Attempts whatsoever which shall be made against his or their Persons their Crown and Dignity, by reason or colour of any such Sentence or Declaration or otherwise; and will do my best endeavour to disclose and make known unto his Majesty his Heirs and Successors all Treasons and traiterous Conspiracies which I shall know [Page 25] or hear of to be against him or any of them. And I do further swear, that I do from my heart abhor, detest and abjure, as impious and heretical, this damnable doctrine and position, That Princes which be Excommunicated or deprived by the Pope, may be deposed or murdered by their Subjects, or any other whatsoever. And I do believe, and in my [my] not in the Statute. Conscience am resolved, that neither the Pope, nor any person whatsoever, hath power to absolve me of this Oath or any part thereof, which I acknowledge by good and full Authority to be lawfully ministred unto me, and do renounce all Pardons and Dispensations to the contrary. And all these things I do plainly and sincerely acknowledge and swear according to these express words by me spoken, and according to the plain and common sense and understanding of the same words, without any equivocation, or mental evasion, or secret reservation whatsoever. And I do make this Recognition and Acknowledgment heartily, willingly and truly, upon the true faith of a Christian. So help me God. Ac qd prefat. Justic. pacis ult. no'iat ad pacem conservand. nec non, &c. left out. ad tunc et ibidem, is left out. scilt. dco. vicessimo septimo die Junii Anno quarto decimo supradicto apud Paroch. et Ward. praed. in dca. Generalis left out. Quarterial Session. pacis praed. [...]osdem Joh'em Crooke, Joh'em Bolton, et Isaacum Gray, et eor. quemlibt. seperatim per se requisiver. ad Jurament. illud super Sacrosca. Dei Evangel. capiend. Quod (que) iidem Johes Crooke, Johes Bolton, et Isaacus Gray Jurament. praed. sic per pr. noi'at. Justic. paces ejusdem Johi Crook, Johi Bolton, et Isaaco Gray ut praefectur oblat. et requisit. adtunc et ibm. obstinate et pertinaciter cape recusaver. et quilibt. eor. Recusavit Contra debitam quoadlibet eor. Legeanciam, ought here to be inserted; for, if he be not a naturall Subject, the Oath is not to be tendred to him.. In malum exemplum omniu. Immediately after the tender to J. C. J. B. and I. G. though they be termed subditos dci. end. Re. alior. dci. Dni Regis nunc fidel. subdit. Et in contempt. dci. Dni. Regis nunc legum (que) suar. Contraformam Statut. praed. Ac contrapacem dci. Dni Regis nunc Coron. et Dignitat. suus, &c.
WILD.
[Page 26] Memorand. That in the Writ of Oyer and Terminer Pasche 9. Hen. 8. upon the Insurrection in London, It was resolved clearly by all the Justices of England, That the Justices of Oyer and Terminer cannot enquire one day, and the same day determine; no more can the Justices of the Peace, &c. but the Justices of Goal-delivery, and Justices in Eyre may well do it. El. 8. Keylewayes Rep. f. 159. b. pl. 2. but they do not call themselves so in the Indictment.
If one in his absence be found guilty of an offence whereby he incurs a Premunire, he hath two months time allowed him after he is out-lawed to be heard. 27 Ed. 3. 1 cap. Cook upon Littl. sect. 201. fo. 134. b. saith, That the ancient Law was, upon tryals for Felony, &c. the Defend. had 15 dayes time, or more (if he prayed it) to consider of his Answer.
With this agrees Britton, fo. 10. b.
Fortescue in libro de laudib. Legum Angliae.
Mirror of Justice, cap. 4. sect. 7.
The Statute of 28 Ed. 1. 9. provides that Inquests shall be of the next neighbours, most sufficient, and least suspicious, upon penalty of double dammages.
25 Ed. 3. cap. 3. No Indictor be upon the Inquests for Felony nor Trespass, if challenged.
34 Ed. 3. 4. Juries to be of the next people, not to be suspected or procured. With this agrees Regist. fo. 178.
11 Hen. 4. 9. That if any Indictment be made but by Inquest returned by the Sheriff (without denomination to him of their names) by any but his sworn Officer, it shall be void.
Reader, these Notes and Observations are here set down, that thou mayest both know thy priviledge by the Law (which is good, being used lawfully) and also, what usage we have met withall from those who should know the Law, and are sworn truly to minister the same without respect of persons; But for such Judges to punish so severely for refusing to swear, and themselves to be so regardless of keeping an Oath when they have sworn, surely is one Argument (and that a good one too) to convince me and others of the lawfulness of not swearing at all, would be the heedfulness and careful observance of them that have already sworn to keep their Oaths; at least, until this be done, to forbear punishing those that fear an Oath; otherwise, it may be said to them, as was said in the like case, Thou that sayest a man ought to swear, through breaking thine Oath dishonourest thou God? Surely [Page 27] these things ought not so to be. What a Judge doth, is looked upon as a thing that ought to be done, and therefore his miscarriage hurts the more. Besides, the Judges Judgments become as Presidents and Records; and what Robbery is like to that when the Law it self shall be made use of (by unrighteous Judges) to rob and dispoil us of our Estates and Liberties? Judges should suppose all men to be good till they be proved to be evil; and the Rule of Law is, quod in Criminalibus Probationes debent esse Luce clariores, (Englisht) in Criminal Cases Proofs ought to be as clear as the Light, that they may rather condemn than the Judge. But I shall end this Particular with this Maxime, as my Judgment, Melius est omnia mala pati, quam uno malo consentire, (Englisht) It is better to suffer all evil, than to consent to one evil.
Now followeth those two points of Law and Conscience, which J. C. desired of the Court, that he might be heard to speak to them as God should give him utterance at that time, expecting they would have given him liberty until the next Sessions, and therefore had no thoughts of speaking to these things when he was called to the Bar; but the Court denyed him liberty, yet he began to speak as followeth, but was interrupted.
AS to Law in this Case, for which I am called to your Bar, many things might be said, as first to the Statutes themselves that require the Oath.
For the 3d Jacob. 4. the ground or cause of the making that Law was the Gunpowder-Plot, as is manifest in the preamble of the said Act, in which the Papists only were the persons concerned, and therefore the Title of the Act is called, An Act for the discovering and repressing of Popish Recusants: Observe, not Popish Recusants and others, but only Popish Recusants; the Parliament intending them and no others when that Law was made, as appears further by these words in the Preamble of the 7. Jacobi, viz. beseeching your Majesty, that the same Oath may be administred to all your Subjects. (Mark) By these words, to all your Subjects, implyed, that the 3. Jacobi was to be restrained only to the Popish Recusants, otherwise these words, to all, &c. need not have been here inserted; and this may be further manifest unto him that will take the pains to reade the Preamble to the Act, and also the Oath it self: The Preamble saith, Forasmuch as it is found by daily experience that many of his Majesties Subjects [Page 28] that adhere in their hearts to the Popish Religion, by the infection drawn from thence, and by the wicked and devilish Counsel of Jesuites, Seminaries, and other like persons, dangerous to the Church and State, are so far perverted in the point of their Loyalty and due Allegiance unto the Kings Majesty and 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 Gunpowder the King, Queen and Prince, Lords and Commons in the house of Parliament assembled, tending to the utter subversion of the whole State, Lately undertaken by the instigation of Jesuites and Seminaries, and in advancement of their Religion, by their Scholars, taught and instructed by them to that purpose, &c. These be the words of the Preamble, by which may be seen for whom this Law was made, and the Oath it self manifests no less, as may be seen in the Recital of it in the Indictment aforesaid; for the substance of it is to renounce the Pope and Papacy, and was made on purpose to find out those that were that way affected, and for no other end.
And whereas it is said, the words are general towards the end of the Act, viz. And if the said person or persons, or any other person whatsoever, &c. Observe, that these general words ought to be restrained to the persons intended in the Act, and signified both by the Title, and in the Preamble thereof, as aforesaid. The Title saith, For the discovering and repressing of Popish Recusants; that general words may be so restrained in a Statute, hath been adjudged, as may be seen in the 4th Book of Cook's Institutes, in his Treatise upon the High Commission, the Question stated by him, is, Whether General words in an Ast of Parliament do include all Particulars, and so exclude all Interpretations? His Answer is, That divers Acts of Parliament which are General in words, have upon consideration, &c. received a Particular Interpretation, as appears, 1. Hen. fol. 12, 13. by Authority of Parliament all Preheminences, Prerogatives, Franchises and Liberties, were given by H. 7. intailed generally without limitation or saving, and the Question was, Whether the Franchises and Liberties of Lords and other inferior Subjects were given? and it was resolved by all the Judges, that they were not, notwithstanding the general words, for the reasons expressed in the said Book. So that here is one Case wherein words generally mentioned in an Act of Parliament have been particularly understood and restrained to the persons intended in the said Act.
Again, Cook saith, that Preambles are the Keys to open the meaning [Page 29] of the Makers of the Act, and mischiefs which they intended to remedy; and the Judges of the Law have ever expounded Acts generally, in words to be particular, where the intent hath been particular: which are the words of the Book. And therefore upon that Rule it is they are adjudged, that where the Statute of the 7th Ed. 6. 1. is general, viz. That if any Treasurer, Receiver, or Minister, Accomptant, &c. it was adjudged (notwithstanding the generality of the words) that this doth not extend to the Receiver of common persons; for the reasons given in the said Book, the Judges restrained the generality to a particular, viz. the King's Receiver only; because the intent of the Makers of the Act was to punish only the Ministers, or Receivers of the King, and that because of the Stile or Title to the said Act; all which may be much more urged in the Case in hand, because the Title is so plain, viz. For the discovering and repressing of Popish Recusants, &c. and the Preamble also shewing it to be made upon occasion of the Gunpowder Plot, &c. And therefore for these, with divers other reasons that might be mentioned, those general words before-mentioned (by which we were judged to incur a Premunire) ought to be restrained to Popish Recusants, and particularly interpreted concerning them, and not to make the Law a snare to those who do from their hearts, and with their tongues also deny the Pope, with all alliances to, and dependences upon him, and that both as to his Principles and Practices; now to make these persons offenders, only because of those general words, they refusing to swear, because they fear an Oath, but readily and willingly afford and yeeld all due and just obedience, and abhor from their souls whatever is contrary either in principle or practice; These Persons without doubt were never intended by the Parliament to be forced to take that Oath, they refusing in conscience to an Oath, and not because due subjection is required; Therefore those that punish them for such their refusal, have the greater sin, for which the Righteous God will call them to account. I shall conclude this with a general Rule allowed by all, in construction of Statutes, Quamvis Lex generaliter loquitur restringenda tamen est, ut cessante ratione et ipse cesset, cum enim ratio sit anima vigor (que) ipsius Legis; non videtur Legislator id sensisse quod ratione careat, etiamsi verborum generalitas prima facie aliter suadeat: in English thus, Though the Law may speak generally, yet it is to be restrained; because Reason ceasing, the Law it self ceaseth; for Reason is the strength and soul of the Law it self: and therefore it may not be thought that the Law-makers had any such intention when the [Page 30] reason is wanting, though the general words at their first view may seem otherwise: for the Maxime is, That the Reason of the Law is the Law it self.
Now followeth some Exceptions against the Statute made in the 7 Iacobi 6. which requires the taking of the said Oath, &c,
First, the Title is to be considered, which is, Who shall take the Oath of Obedience, and by whom it shall be ministred, and within what time. Note, that it is not said to the King and his Successors, but only to the King. And it appears by the Preamble also, that this Act was made to enlarge the persons that were to take the Oath, being all the Subjects, of what estates, dignity, preheminence, sex, quality, or degree soever, he, she, or they be, or shall be, above the age of eighteen years, &c. the former Act of the 3 Iacobi appertaining only to Popish Recusants, as before is said. Again, Note, that in the Title aforesaid it is said, And within what time it shall be taken, which time seems to be particularly set down, within which all sorts of persons w [...]e to take it, as appears in these words towards the end of the said Act; And to the intent that due execution may be had of the premises without delay, it is further enacted by the Authority aforesaid, That all the persons before named, who have any certain time limited or expressed when to take the aforesaid Oath, shall at the time therein prescribed take the same, And the rest within six months next after the end of this present Session of Parliament. Note, here is a prefixed time for the several sorts of persons to take the said Oath; And the rest (mark that) implying all others whatsoever, to take it within six months next after the end of this present Session of Parliament; but no Provision is made in the said Act either to minister it afterwards, or to swear to any other besides King Iames (as it seems) and as by the Oath it self also appears; for it is said, the Oath was to be administred for the tryal of his Majesties Subjects how they stand affected, &c. and not to the Subjects of his Majesty, his Heirs and Successors; because it may be supposed the Law-makers intented this Oath to be only sworn to King Iames; for it is no where said in the Statute, that those who have power to tender the Oath, should swear all persons (that were to take it) to King Iames, and afterwards to his Heirs and Successors; for though Heirs and Successors are named in the Oath, yet it is no where said that this Oath shall be inforced upon the Subjects to swear to any other King after his decease. By all which it may be thought that King Iames onely was to be sworn to by vertue of these Laws; for although he that took that Oath, was thereby obliged to [Page 31] perform it both to the King, his Heirs and Successors, yet it is no where expressed in either of the Acts, that the persons then appointed to take the Oath (or others afterwards) should take the same to every of the Kings Heirs and Successors as they should come to the Crown. But notwithstanding all that hath been said, if it should yet be admitted that it might be tendred on the behalf of his Successors after his decease, yet these words are carefully to be observed by all who tender the said Oath, viz. being duely tendered according to the true intent and meaning of the Statutes; and the rather the Ministers of the Oath ought to be careful in observing all due circumstances, as in the causing it to be read at the times of the respective tenders, according to the directions of the Statutes (which was not done to us upon our Tryal, some of us not having it read to us at all, and others but part of it, and that but once neither) and the more strictly, because the penalty for refusing is so great as Premunire, and those other words also are truly to be considered, viz. according to the true intent and meaning hereof, which cannot be supposed to be observed when it is tendred unto those who do yeeld all due obedience unto the King, and also do deny the Pope his principles and practices as aforesaid, and refuse it in conscience to an Oath, these answering the substance of the Law (which requires obedience to the King) but cannot observe the ceremony or imposed formality thereof, for conscience sake; and in this Case this distinction is to be kept unto in this Law as well as others, (viz.) Forma verbalis et forma Legalis, which is essentialis or the substance of the Law or thing to be performed: for, Lex non est insermonam foliis, sed in radice rationis posita est, (Englisht) The Law is not in the leaves of words, but is placed in the root of Reason; and if the distinction aforesaid had been observed, the Oath could not in Justice have been tendred to us, when the substance of the Law is answered, though the particular words or formalities be not kept to, yet it hath been adjudged a good observance, as in Bufage's Case in the 10th Book of Cook's Reports upon the Statute of Hen. 6. 23. giving power to the Sheriffs to take Bail, &c. these three things were alledged against the Sheriff: 1. In the Obligation, the Law saith reasonable Sureties, and the Sheriff took but one Surety. 2. In the Condition, the Sheriff put in, that the Prisoner should appear in person, and the Statute saith onely appear generally, without the word person. 3. Ad respondendum, when the Statute saith only the day, not naming to answer. Yet for all this the Obligation was judged good, for the Reasons mentioned in the Book. And surely, if these omissions and [Page 32] additions, contrary to the express words of the Statute, could be justly dispensed withal, much more then in our Case, might our refusal of a ceremony or imposed formality be born withall, the substance being observed, especially considering the disproportion of the penalties; the former the losse of a small sum only, but ours the losse of all outward Estates and Liberties also, besides being put out of the King's Protection, as our Sentence was: But we leave this matter to be judged by Him that judgeth righteously.
More Presidents might be urged in this Case, to manifest the hard measure we have met withall, but I shall conclude with these few Instances following. Vide Sir Robert Cotton's Collections, Records in the Tower, 39 Hen. 6. 1. That an Oath being the Law of man, ought not to be performed when the same tendeth to the suppression of Truth and Right, which is against the Law of God: and the Statute of 28 Hen. 8. 7. saith, That no man, of what estate, degree or condition soever he be, hath power to dispense with God's Laws, as all the Clergy of this Realm, and the most part of the Ʋniversities of Christendom, and we also do affirm and think: and the Common Law of England also saith no less; Dr. & Stud. cap. 3. pag. 6. Man may only make Laws of such things as he may judge upon, and the Judgment may not be of inward things, but only of outward things: and the same Book also saith, p. 8. The Laws of Princes, the Comments of Prelates, the Statutes of Commonalties, nor yet the Ordinances of the Church, are not righteous nor obligatory, except they be consonant to the Law of God. And cap. 2. p. 4. speaking of the Law written in the heart, he saith, Against this Law, Prescription, Statute, Custom may not avail, and if any be brought in against it, they be void and against Justice. These things considered, it is manifest to every unprejudiced mind, that what ever can be said concerning the Statutes aforesaid (being but the Laws of men) they are void and null, because contrary to the Law of Christ, who saith, Swear not at all; And if banishing, fining, and imprisoning men for Conscience, &c. were the flagellent methods of the late most tyrannous times, who had neither Law nor Reason to support them, (as the Bishop of Exon saith in his late Book against the Quakers) Then what are these dealings and prosecutions, and Sentences against us and others, only for Conscience sake, because we fear an Oath (in obedience to our Lord, who saith, Swear not at all) and what these are to be accounted, and what Law or Reason they have to support them, I leave the wise in heart to judge?
Now followeth the point of Conscience that I desired to be heard to speak to.
COnscience hath a voice, and is worthy to be heard, because, according to its Evidence, for, or against, shall every man receive his Sentence. That which it speaks concerning Swearing in my heart, is according to Christ's Command, Mat. 5. 34. who saith, Swear not at all; and the Example of the Apostle, Jam. 5. 12, who continued in the Doctrine of Christ, and saith, Above all things, my Brethren, swear not, neither by Heaven, nor Earth, nor any other Oath, lest ye fall into condemnation: He knew Christ's mind, and therefore leaves out the word [communication] implying, that no kind of Oath upon any occasion is to be used among the Brethren and Disciples of Christ. And the Apostle Paul, Rom. 14. 11. and Phil. 2. 11. referring to the Prophet's words, Isa. 45. 23. where it's said, Unto me every tongue shall swear, &c. but the Apostle leaveth out the word [Swear] as unsuitable to Gospel-times, and inserts instead thereof the word [Confess] saying, Every tongue shall Confess to God; as if that which might be sworn to in the time of the Law, is now only to be confirmed by bare confession or negation; and the reason is, because Gospel-dayes are supposed to be attended with clearer Light, and greater Power, that our yea might be yea, and our nay, nay, in all things; for now whatsoever is more than these cometh of evil, and savoureth of fleshly distrust, as the Apostle phraseth it elsewhere, 2 Cor. 1. 17, 18, &c. And though the Law made nothing perfect, yet the bringing in of the better hope doth, and unto this perfection Christ Jesus is pressing his Disciples, as may be seen Mat. 5. last vers. where he concludes with these words, (after he had pressed them to many things, and not to swear at all) Be ye therefore perfect, as your Father which is in Heaven is perfect: for the requiring of an Oath supposeth unbelief in the one party, which is no more to be pleaded for, than it is to be practised in a true Christian; for, they that are truly Christians, are Sons of God, and as many as are so, are led by the Spirit of God (Rom. 8. 14.) which is Truth, and leadeth them into all Truth. Much might be said on this behalf, but it being so fully asserted by divers Witnesses, whose Testimonies are publisht concerning this Subject, for the good of all that desire to know the Truth, I shall conclude with few words, viz. That there being both so full and plain Texts of Scripture to ground such a Belief upon, as ours is in this point, and such demonstration of [Page 34] right Reason also, it may very well be spoke to as a Case of Conscience (and ought to have Audience at your Bar) and the opposers of it, and the imposers of an Oath will be the more inexcusable before God in the day when he shal sit to judge the secrets of all men by Jesus Christ, according to that Gospel which saith, Swear not at all; Where then will those appear that inflict so great punishments upon the Innocent, that make Conscience both of what they say and do? and if this Maxime be true, that Conscientia errans obligat, as the Bishop of Exon confesseth, how then shall the punishers of such men (for practising according to their Consciences truly enlightned) escape the righteous Judgments of God? For, if Conscience be that for the sake of which (and not for Wrath only) Obedience is to be yeelded to Magistrates, Then, in true Equity and right Reason, it followeth, That Magistrates ought not to punish for such Obedience as is according to Conscience.
Some ANIMADVERSIONS upon the whole Matter, shewing the Severity and Unmercifulness (if not cruel Injustice) of the late Proceedings against us; Leaving it to be judged by God's Witness in every Conscience.
Considering our first taking without Warrant by force of Arms, and our Commitment thereupon, with the Proceedings upon that Commitment at Hicks's-Hall, Middlesex, by Indictment against J. C. upon the late Act of Parliament against Quakers, &c. and his pleading not Guilty thereunto, with the Court's committing him again to Prison, where he remained until the Sessions in the Old Bailey as aforesaid; The Court's often refusal to take any notice of former Proceedings, or any injury or wrong that he had sustained, either in Apprehension or Proceedings, or so much as the Cause it self for which he was imprisoned.
The Court's putting him upon Interrogatories (no Accuser appearing) to accuse himself, in tendring him the Oath of Allegiance (as a snare) that so his Refusal might become a Crime for them to punish him for; carrying themselves rather as Parties, than as equal Judges between two.
Because we were surprized in our Tryal, expecting that, according to our Mittimus and former Proceedings, we should have been tryed upon the late Act of Parliament made on purpose against Quakers, &c. not in the least expecting any such Proceedings as we met withall, [Page 35] and therefore could not be provided to make our Defence according to Law; seeing we were committed upon pretence of one Law, and prosecuted under colour of another, which could not without force cast any face upon us, as persons concerned to be tryed by it, viz. 3. Jacob. 4. Intituled, An Act for discovering and repressing of Popish Recusants.
It further appears, in that our Judges declined the late Act which was made on purpose (after the Imprisoning of so many thousand Quakers) only for refusing to take the same Oath of Allegiance, which Imprisonment begat so many Debates in both the Houses of Parliament, that it may be supposed they concluded the penalty of Premunire, according to the former Laws, was either too great and severe, or that the Quakers (so called) were not at all within the intent of those Laws, and therefore they enacted, That for the first Refusal to Swear, they might be fined not exceeding Five pounds; for the second Refusal, not exceeding Ten pounds; and the third Refusal, it might be lawful for the King to cause them to be transported, &c. But these Judges not liking the Parliaments Act, nor their Judgments exprest in the same (concerning punishing of the Quakers) have found out a way to make them feel their little finger to be heavier than the Parliaments loyns; as is manifest by the Sentence of Premunire lately passed, only for refusing to swear, whereby they also slight the King's Declarations, which say, That no man should be molested, or called in question for his Conscience, &c. as they did his late Proclamation (when it was given them in Court to be read) which saith, That no man shall have his house searched, or be taken, or imprisoned, under any pretence whatsoever, except by a Warrant first had and obtained from some of the Privy Council, or some Justice of the Peace, &c. But of these things the Court would take no notice when they were urged to them.
Because, when time until the next Sessions was desired, for these reasons: 1. Because the Indictment was in Latine, and so large. 2dly. There was need of Counsel in the Case. 3dly. It was to be a President, and therefore for themselves as well as us, there was need of time: Judges heretofore being careful in making Presidents. Unto all which we had this Answer returned, Stop their mouths Executioner, and take them away; and all this when it was the proper time for us to make our Defence.
Because the moderate Jury that had served upon several Tryals at the same Sessions were dismissed, and a new Jury impanelled only [Page 36] for us, consisting of several persons who had a hand in our illegal Apprehensions and Commitments.
Their unrighteousness is further manifest from the Recorder's Answer to us, when we pressed for time, who said, they could not grant it, because they must deliver the Goal; and yet several persons that were taken and imprisoned upon the same account with some of us, are continued stil in Prison, there being nothing done unto them in order to any Tryal: But, as Lyers have need of good Memories, so have such Judges of careless Auditors and Spectators, that their words and actions may not be taken notice of. Besides, at the same Sessions the Oath was tendred to some persons, and although they refused, yet was liberty granted them till the next Sessions; which renders such Judges guilty either of partiality, or injustice, or both; and thus they condemn themselves by their own sayings.
Lastly, That which aggravates their severity and cruelty to us, is further manifest by these things following. 1. That none of the Kings of Israel (that we reade of) ever required such an Oath of the People. 2. Inasmuch as the refusal of the Oath (simply considered) doth the King no harm; nor the taking of it any good. 3. If it were an offence to refuse to take it, yet the punishment is not proportionable to the offence, which by the Just Law it ought to be. 4. To conclude, The Oath was not duely tendred according to their own Law, inasmuch as it was not read at all to some of us, only we were asked if we would take it? and to others but once, and not quite through neither to our hearing and understanding, and none of us in words denyed then to take it: He that deserves punishment is alwayes supposed to have done or said some evil; now the Law saith, Malum non habet efficiendum, sed deficiendum causam; in English thus, Evil hath not an efficient, but a deficient cause (saith Cook) because some virtue is wanting. Now what virtue is wanting in him that doth speak the truth without dissimulation, but dare not swear at all?
These things truly considered and duely weighed in the ballance of the Sanctuary, it will soon appear which scale goeth down, and over whom this Motto deserves to be written, MENE TEKEL, &c. Thou art weighed in the Ballance, and art found wanting; for, this is the day for discovering of false weights and measures, and of the measuring of the Temple and the Worshippers therein, according to John's Prophecy, in Revel 11. And hearken also what the Prophet saith, Amos 5. 7. & 10. Ye who turn Judgment into Wormwood, and [Page 37] leave off Righteousness in the Earth; And hate him that rebuketh in the Gate, and abhor him that speaketh uprightly: and at the 27. ver. it is said, Therefore will I cause you to go into Captivity, &c. saith the Lord, whose Name is the God of Hosts.
MArvel not that in this Discourse thou findst the Author out of his wonted method, in so often using the Laws of men: It's not his souls delight to be wading in such muddy waters; neither doth he now use the same to upbraid the Professors thereof, for surely he drinks of clearer streams than any flow from such fountains; yet he hath learned to set things in their place, and to give them their proper due; for even from the good old Laws of England (as well as other things) there hath been an Apostacy, and is a declension from what once they were, and their Books shew no lesse, viz. Doct. & Stud. chap. 2. pag. 4. There is a Law written in the heart of Man, which is Man created in that Image of God, and this Law is alwayes good and righteous, stirring up a man to do good, and to abhor the evil; and therefore against this Law, Prescription, Statute, Custom may not prevail; and if any be brought in against it, they be void and against Justice. These be the words of the Book, with many such like that might be mentioned, sufficient to condemn all those that act contrary; but this is enough at present for this end, that (if it be possible) some of them who have been so long conversing with the Laws of men without, that they have forgotten to mind the Law of God within, upon which all the Laws of men should be built, as themselves confesse. And therefore, those who will not receive Truth, because this Author speaks it, may receive it from their own Poets, as the Apostle saith in another case; And if this be true, which learned Cook sets down, that
If this be true, then for shame swear men no more: if words be sufficient to bind, what need Oaths?
Now followeth some Collections that passed at the same Court of Sessions, by Isaac Grey (called Dr. in Physick) at the Old Baily, receiving the same Sentence of Premunire with the other two.
Will you take the Oath of Allegiance?
I have been near five weeks in Prison, I desire to know for what.
We take no notice of your Imprisonment, nor how you came here; Will you take the Oath?
I desire to know for what I am imprisoned, and then I am ready to answer: for no man (in this particular) hath received so much wrong as my self, having received a Wound, whereby I was in jeopardy of my Life.
If any have wronged you, take your course in Law; will you swear?
I am a man of a tender Conscience, and do desire time to consider.
Take him away; which was accordingly done.
I desire time to consider, and to do nothing rashly.
Mr. Grey, will you take the Oath? Cryer, hold him the Book.
I desire to know the cause of my first Imprisonment, and to discharge me of the same before I give my Answer to the Oath; for I do not know my self guilty of any Crime.
The Law supposeth you to be disaffected to the present Government, and therefore the Oath is tendred to you.
I understand that the fundamental Law of England alloweth no man to be accused or condemned upon supposition: I do further affirm, and that in the Light of God, That I am not an Enemy to the King, nor to any man living upon the face of the Earth.
Will you answer, Guilty, or not Guilty?
I desire time to consider of the truth of this matter; the Indictment being large, and having much contained in it which indeed I do not well understand.
Will you yet swear, or plead to the Indictment?
I have told you, and that for Conscience sake, I dare do nothing rashly.
What do you talk to us of Conscience? every fellow may plead Conscience.
Do you use to swear such as make no Conscience?
Guilty, or not guilty? When you have answered to this, you may plead what you can in your own Defence; but first answer, Guilty, or not guilty: The rule of the Law is, you must first answer.
Would you have men swear whether they will or nay, especially when against their Conscience?
We have Consciences aswell as you: If there be any thing as to matter of Conscience, it is nothing! you must plead Guilty, or not guilty, that we may not spend time any longer.
Truly, I desire not that the time should be taken up in any thing that may not advantage the good of the People; Therefore before I plead, give me a Copy of the Indictment, and then I shall plead.
Sirrah, Guilty, or not guilty?
I desire first to be heard as a Christian, and then as an English-man.
Do not I tell you (Sirrah) if you will plead, not Guilty, you shall be heard; but if you will not, you will run your self into a Premunire.
I appeal then to God Almighty, for I shall not wrong my Conscience.
It is no matter of Conscience, Guilty or not Guilty?
Not Guilty.
The last day of Tryal all the three persons aforesaid being called to the Bar, after some discourse between my fellow Prisoners and the Court, my self was forced from thence before I was heard, my fellow Prisoners being violently thrust within the Felons Bar, but my self, by Command from the Bench was not thrust there, but I desired to be with my fellow Prisoners, and to fare as they fared, and so was put in with them; but after some time, (the Court being in a confusion, [Page 40] and their Officers abusing my fellow Prisoners, by stopping their mouths, and the common Hangman endeavoured to gag one of them, that they might not speak in their own defence) Then I desired I might be heard; upon which the Court called me nearer to them: Then I approached to their Bar, and spake on this wise, I desire to know whether, according to the Law of England and the Proceedings of this Court, we may not be allowed to put in Bail to prosecute our Traverse at the next Sessions?
To which they answered, We might not.
Then I desired them to do me and my fellow Prisoners Justice; For you are to know that as we stand arraigned at this Bar, so shall you appear before the great Tribunal of God's Justice, to give an Account of this dayes work, as also of all the deeds done in the Body, whether they be good or evil; and what measure ye mete to us, shall be measured to you again.
We know that as well as you, and then called to swear the Jury, the Court being in a confusion, and the Officers and the Hangman abusing my fellow Prisoners, as aforesaid; then I went my way, the Chief Justice (so called) being in a Rage, called to me in an abrupt manner, saying, You shall be tryed according to the Laws.
I do desire to be tryed by the Laws, and not by Passion. Then they went on (being all in a confusion and disorder) unto Sentence, which was on this wise, You shall forfeit all you Real Estate for life, and your Personal Estate for ever; and be put out of the King's Protection, and imprisoned during the Kings pleasure, according to the Statute of Premunire. Which Sentence also passed upon my two fellow Prisoners aforesaid.
These things are part of what passed between the Court and my self, many things being omitted by reason of the often Interruptions, and are written to prevent mistakes, and to inform all moderate Inquirers concerning the Severity and Injustice that we met withal, Not only to the losse of all my Estate and Liberty, but of my Practice also, to the dammage and detriment of many of my Patients, who (through necessity) are compelled to come to Prison to me, but have been sometimes hindred from coming to speak with me.
But our desires are, to forgive them that trespass against us, as God hath forgiven us our trespasses against him.
An Additional Postscript, further manifesting the Illegality of the late (aforesaid) Proceedings.
AN Oath saith Cook (3d part Institutes, chap. 74. p. 165.) is an affirmation, or denyal, by any Christian, of any thing lawful and honest, before one, or more, that have authority to give the same, for advancing of Truth and Right, calling Almighty God to witness that this Testimony is true. And he further saith, No Oath ought to be administred but such as is allowed by the Common Law, or by Act of Parliament; neither can any Oath be altered that is allowed by Common Law, or Act of Parliament, but what is altered by Act of Parliament. Note, an Oath is an affirmation, or denyal, which was not denyed by us: he doth not say by kissing the Book or any such like ceremony. Note again, the end of taking this Oath, it is for advancement of Truth and Right, which is truly done by affirmation or denyal, being solemnly spoken as in God's sight and presence; and our denyal to take the Oath in that way of imposed formality (yeilding all just and due obedience) did no way hinder the advancement either of Truth or Right, Obedience answering the End of the Oath, and not Swearing; and this signified by Cook's definition of an Oath.
Again, Justice Crook saith, We that are Judges speak upon our Oaths, and therefore must deliver our Judgements according to our Consciences; and the fault (saith he) will lie upon us if it be Illegal, and we deliver it for Law. (Mark) the Judges Consciences according to their Oaths, is the ground of their Judgments; then is not another man to exercise his Judgment according to his Conscience, though he doth not formally swear? Have Judges only this Priviledge, in ministring or executing the Law, and shall not another man have the like Liberty of Conscience, especially when he hath positive Scripture on his side, that saith, Swear not at all? And he further saith, We that are Judges must not give our Judgments according to Policy, or Rules of State, nor Conveniencies, but only according to Law. And without doubt, were the Judges, and others, more strict in observing their Oaths, others by their example might be induced to conclude, That there is something more in swearing than now they believe to be; For unjust Judges bring a contempt upon the Law it self, as one said of the Greek Tongue, who thought it a mockery to learn that Language, the Masters whereof lived in bondage: So marvel not if some contemn the Law, because the Ministers thereof make it serve to gratifie their [Page 42] lusts and evil wills; These (like Spies) make use of their knowledge in the Laws, to find out where they may enter, and how they may rob, ensnare and spoyl those for whom the Laws are to be as Preservatives from Violence, and Encouragers of Virtue, and not Nurseries of Vice, as they are often made to be by the Wits and Practices of Evil Magistrates; that so not only, Ignorantia judicis est calamitas innocentis, but also his knowledge is perverted to serve his will; And these can make Laws to be in force, for punishment and destruction, but not for preservation; making them to kill and destroy, but not to protect; a thing no less horrid and cruel, than if the Sun should burn without giving us light; or the Earth serve only to bury, but not to feed and nourish us: So do such Judges and Justices, when they have a mind to spoyl and ruine, no Laws of freedom are taken notice of by them. It hath been said in times past, by those who have strictly observed former Judges, that they were compared unto the twelve Lions under Solomon's Throne, Lions for their courage and boldness to assert the Laws and Priviledges of English-men; and under the Throne, because of their own subjection unto them: But how far these resemble such, who sate upon the late Tryal, and passed the Sentence of Premunire, I leave the wise in heart to judge, both by what is here presented concerning that Tryal, as also from those who were Spectators and Auditors of the same. It hath been said, that the Laws of England are like Hercule's Pillars that have a ne plus ultra upon them, as well as they are Pillars to Hercules: But surely by such pulls as these (in causing mens mouths to be stopt by the Executioner when they are at the Bar to make their Defence, to preserve their Liberties and Estates) must needs shake those houses which have no other foundations to stand upon. Judges in former times, when there was no Law for Cases that sometimes fell out, for bore proceedings until a Parliament was called to make Laws (for it is a higher Jurisdiction dare Leges, to give Laws, than to minister, or rule by them) But these Judges do shew dislike unto the Laws already made, and that lately too, and on purpose against those persons called Quakers, that deny all Oaths: which Act of Parliament sets down what Fine shall be imposed, and no more, and all the Penalties for the first, second and third Offences: But these Judges, for the first Offence (and that created by themselves too) will have all but Life, as themselves said; and that too, to live in penury and misery, the means of livelihood by their Sentence being to be taken away. Surely if the Law of England be a merciful Law, as they said it is, then they must needs be most unmerciful Judges who passed [Page 43] so severe a Sentence, drawn from such merciful Laws as they said the Laws of England are; And surely in this, the Judges make their little finger (as was said) heavier than the late Parliaments loyns But as Execution is the Life of the Law, so the application of it to a proper subject, is the feet upon which it is to go: and if this Rule had been observed, Popish Recusants (& not true Protestants) would have bin found to have been the persons intended in the Statutes of King James, as aforesaid. But through male-administration of Laws (oft-times) those are most hurt by them, for whom they were not made; and so comes Judgment to be turned backward, and Equity to fall in the streets; and this made the Prophet take up a lamentation and say, Wo is me, for I am as when they have gathered the Summer fruits, as the Grape-gleanings of the Vintage, &c. The good man is perished out of the Earth, and there is none upright amongst men; they all lie in wait for blood: they hunt every man for his brother with a net, &c. Mic. 7. 1, 2, 3, 4. And was it not thus when they sought to entrap the Prophet Daniel, but could find nothing against him, save in the matters of his God. And this was the controversie in the Prophet Hosea's time, chap. 5. 1. Hear ye this O Priests, and hearken ye house of Israel, and give ear O house of the King; for Judgment is towards you; because ye have been a snare upon Mizpah, and a net spread upon Tabor. And was it not the practice in those persecuting dayes mentioned in the Book of Martyrs, that when no snare nor net would do, then this was the question to them, What say you to the Sacrament of the Altar? and by this, when all failed, they were sure to catch them. The like use, by the Powers that are gone, was made of the Engagement, and the Oath of Abjuration, and is now made of the Oath of Allegiance, by malicious Magistrates, who when they can find no way to execute their Cruelty upon the poor People called Quakers, then they cry, Give them the Oath, and this is so frequent, that they tender it at their pleasure, and to whom they have a mind, knowing when all snares fail, they can surely catch them in this; or, if all other Laws be but like Rods of wire, and the Judges or Justices have a mind to whip a man soundly, then they will at their pleasure, tender the Oath, and the refusal thereof they will make to be as Scorpions, by passing the Sentence of Premunire against them. What man can be safe while Judges and Justices take this liberty to themselves, to decline Laws of safety and moderation, and pick out at their pleasure Laws of Cruelty, and make whom they please to be concerned therein? For, by the same rule, they make true Protestants to be concerned in those Laws made [Page 44] only for Popish Recusants; (as is manifest by the Preambles and Titles of the Laws) and inflict the penalties upon them; may they not also make true and honest men to be transgressors of those Laws that are made for dishonest and unrighteous men, and inflict the penalties therein contained upon them, they being Judges of the Law (as they call themselves) and so may punish sober men by the Laws that are made for Drunkards, as well as punish those that fear an Oath, by those Laws that were made to punish Swearers and Plotters, and such like? as it is plain those Laws were made for such, and upon occasion of the Gunpowder-Plot: But where were Popish Recusants taken out of their Meetings and places of Worship? and, when were any of them convicted by vertue of any of these Laws, though made principally for them? Have not they that liberty which others are debarr'd of? are they haled out of their Meetings by armed men without Warrant or Order, as the People called Quakers, and others, are? With whom are Goals, Holes and Prisons now filled; with Drunkards, with Ballad-singers, with Stage-players, and with Swearers; or, with such as fear an Oath, and dare not swear at all for Conscience sake, in obedience to Christ's Command? are not these, and such as these, become (through the violence of evil men) those that now must be separated from their Families and Imployments, and thrust into Goals, and there become the Companions of Theeves and Murderers, while Impurity walks in the streets, and Ungodliness shews it self with open face? Where's the Sword of Justice that should not be born in vain, but used for the punishment of evil-doers, and for the praise of them that do well? If it be not drawn to execute Judgment, will not the God of Justice draw his Sword of displeasure? and when he utters his Voice, will not the Beasts of the Field tremble? Shall not the Righteous God do Righteously? Be wise now therefore, O ye Kings; be instructed, O ye Judges of the Earth; serve the Lord with fear, and rejoyce with trembling: Kisse the Son, lest he be angry, and ye perish from the way; when his Wrath is kindled but a little, Blessed are all they that put their trust in Him.
Let none judge nor condemn us because we have recorded the Court's miscarriages towards us, as (their commanding) that our mouths should be stopt, and such like, lest in so doing they condemn the Disciples and Apostles of Christ, who in like manner have recorded the miscarriages of Herod, Pilate, and others; and the Apostle Paul, who saith (Acts 23. 1, 2, 3.) Men and Brethren, I have lived in all good conscience before God until this day, (which was no canting, [Page 45] as I was accused for) and the High-Priest Ananias commanded them that stood by him, to smite him on the mouth, as we were commanded to have our mouths stopt; neither let it be thought by any that these Servants of God were not wholly dissolved into suffering principles, unto all long-suffering and patience with joyfulness, notwithstanding their publication and recording these things.
Errors escaped in some sheets, thus to be corrected.
PAge 6. line 14. reade disseized for desiered. P. 9. l. 10. reade sed for set. P. 36. l. 28. reade—efficiendam & deficiendam. P. 37. l. 29 and 30. reade taurorum, and Cornua without an Accent.