each side with his Elboes and smote Rose Gogny such a hard blow on her Breast that her Breast was sore several dayes Also Charles Alden the Vintner at the Sign of the Chairing-Gross came calling out Here 's Sons of Whores Here 's five Hundred Sons and Daughters of Whores The Church Doors stand open but they will be Hang'd before they will come there And whilst a Friend was speaking the said Alden said Pull down that Puppy-dogg why suffer you him to stand there Prating Robert Robinson Rose Gogny It plainly then appeared that the said C. Alden and the rest of those Rude and Tumultuous Persons behaved themselves more like Atheists and Bruit Beasts than Persons of any Seriousness Regard to Religion or Christianity Nay let Humanity and Common Civility condemn their Deportment What Ornament such Sons of the Church can be to her let their Priests and all serious Persons judge though the said Alden be accounted a great Singer at the Cathedral i.e. one of their Singing-men how Immoral and Bruitish was his Behaviour How busie was he also with the Recorder against the Prisoners informing muttering and whispering against them greatly inconsistent with so much as the pretence of common Justice to suffer much more to countenance such work Surely the Righteous Judge of all will plead with all such Malicious Agents and such Injustice will not go Unrebuked Here follows a Copy of the Prisoners Letter delivered to the Mayor before the Quarter-Sessions containing a twofold Request c. To the Mayor Justices and Aldermen of the City of Norwich WE whose Names are hereunto subscribed being Prisoners in your City Goal for our Conscience towards God do heartily wish Health Happiness and Prosperity in the Way of Righteousness unto you all and desire of the All-seeing and Heart-searching God that you may be preserved from all Injustice Prejudication and Arbitrary Proceedings both in our Case which we understand is to come before you and in all other Cases proper to your Cognisance as Civil Magistrates wherein you are required to discharge a good Conscience both in the sight of God and Men as that which will greatly tend to your Peace with God and your Reputation among good Men. For as much as we have for some Weeks been detained Prisoners in your City Goal and you have had no hand therein saving that one Person by whom we were committed we are the more encouraged to make this brief Application to you upon a twofold Request on this wise 1st We Request your Moderation and Indifferency so far towards us as that when we are called before you as a Court of Judicature in your Quarter-Sessions to hear and determin Matters that come Judicially before you you will please to hear us with Patience and suffer us to open our Case and to Plead and Argue whether it be in point of Law Conscience Reason or Fact as our Case shall require First Hear before you Determin that we may not be over born nor run down nor any such Precipitation used towards us in Court to divert or prevent us from making our Defence in referance to the Prosecution and Charge we suffer under 2dly We further Request That if upon a deliberate hearing and due enquiry into those Proceedings which we suffer under we make it appear that we are Illegally and Unduely proceeded withal besides and contrary to due process and order of Law that then you will not countenance abet nor confirm such Proceedings against us but stand clear thereof and shew your Dissent for whoever be deputed Judge in your Court as the King's Minister and Mouth of the Court 't is no otherwise so legally intended than as he shall appear to be the Minister and Mouth of the Law and Justice or Lex Loquens and therefore cannot be reasonable or safe nor yet for your Reputation or the Honour of your Court to espouse or confirm any Prosecution or Proceedure that 's Injurious or contrary to due course of Law and so tending to the * * 37 Ed. 3. c. 18. Grief and Dishonour of the King or Destruction of any of his peaceable People Now we hope you 'l not deny but assent to these two fore-going Propositions as Just and Reasonable And therefore that we shall not need now to urge upon you but only Re-mind you of these material Points of Law following 1 st It is the Kings Will in point of Law That all his Justices Sheriffs Mayors other his Ministers which under him have the Laws of the Land to guide shall allow the great Charter of the Liberties of England pleaded in all its Points 25 Ed. 1. c. 1. Cook Inst 2 part sol 527. 2 dly That if any Judgment given or any thing done contrary to the Points of the said Charter by the Justices or any other the Kings Ministers that hold Plea before them against the Points of the Charters it shall be undone redressed and holden for nought 25 Ed. 1. c. 2. 5 Ed. 3.9.28 Ed. 3.3 c. 3 dly The Court ought to be of Counsel with the Prisoner to see that nothing be urged against him contrary to Law and Right Cook Inst 3 part fol. 29. 4 thly That the Court ought to be so far from over-awing or forcibly diverting the Prisoner from his Plea or Answer That the Judge ought to Exhort the Prisoner to Answer without fear and that Justice shall be duely administred unto him Cook Inst 2 part fol. 316. 5 thly That any learned man that is present may inform the Court for the Benefit of the Prisoner or any thing that may make the Proceedings Erronious As also even in Cases highly Criminal it is lawful for any man that is in the Court to inform the Court lest the Court shoulderr and the Prisoner be Unjustly proceeded with See Cook 3 part fol. 137. Cook Inst 3 part fol. 29. Now Friends these things are recommended and left to your serious Considerations we not designing hereby as you may easily understand to enter into the Merits or Justification of our Cause but fairly to introduce the Right and Legal Cognisance thereof in order to have Justice and Right done us as ENGLISH MEN and as we are your Well-wishers George Whitehead Thomas Burr â—orwich-Goaâ— the 17th of the 2d Moneth 1680. We desire this may be Communicated An Account of the substance or principal Parts of the Proceedure at the Quarter-Sessions at Norwich holden for the City and County of the same the 18th Day of the Moneth called April 1680. In the Case of George Whitehead and Thomas Burr Prisoners for the Testimony of their Conscience Francis Bacon the late Recorder of Norwich being Prosecutor Accuser and Judge But the Mayor and other Justices more indifferent and Judicious towards the Prisoners Collected and compared by several Hands and digested into as much Order as the Capacity the Sufferers and the Circumstances of Proceedings would admit THe Quarter-Sessions for the City and County of Norwich
begun the 19th Day of April so called 1680. Adjourned until the 26th and continued the 27th and 28th of the same And again Adjourned until the 17th of May 1680. The aforesaid Prisoners G.W. and T.B. were called into Court the 27th of April in the Year above said nothing said to them then by the Court but they returned back immediately to Prison upon pretence of a mistake about their being called forth At the Quarter Sessions for the City and County of Norwich the 28th Day of April so called 1680. 1. THe Prisoners were brought to the Bar. 2. Their Hats ordered to be taken off 3. Their Hats taken off 4. G.W. standing up to the Bar begun thus viz. The Law of England requires two things of the Court with respect to the Prisoners viz. 1 st The patience of the Court And 2 dly The Indifferency of the Court towards the Prisoners That their Case may be patiently heard and considered without Prejudication before any Judgment pass against them This we expect from the Court. We have been five Weeks in Prison 'T is meet the Court should know for what Pray let our Mittimus be produced and read in Court that it may be understood what Charge we suffer under Our Suffering is two fold 1 st Above five Weeks confinement 2 dly The Charge that 's against us in the Mittimus We request that the Mittimus may be produced and read in Court Recorder There 's no need of your Mittimus to be read here I 'le give Account of the Cause I 'le inform the Court. These Persons had been two ‖ An Untruth Moneths from home and had been up and down the Country in Suffolk * Not true of T.B. 't was only G.W. at a Burial c. And then they came hither and here they gathered a company together of about two Hundred and the Officers went from me to dissipate them but could not whereupon I sent the Sheriff and he took them away and put them in Prison †The Prisoners had not opportunity to speak to all this Account And then they were brought before me and after Conviction made I proffered them That if they would pay their Fines I would not commit them to Prison but when they would not I tendred the Oath of Allegiance to them And after they would not take it I sent them to Goal as I think I very well might G.W. We are English-men and have right to Travel in any part of the Nation c. T.B. I am a Person that have been concerned in Trading in Corn as well in this County as in others and by the Law of England a Man may Travel from place to place about his Concerns and ought not to be molested while he walks peaceably c. R. Had not you better been turning your Molt at home then to come here to Preach The Apostle Paul exhorts to follow the Vocation whereunto ye are called The Scripture says God added to the Church such as should be saved But ye draw from the Church Prisoners Note The Prisoner heard not these Words but some others affirmed they did However had the Prisoner heard this Reflection before upon a fair debate upon the Point he might have answered the Recorder That to be a Trades-man or Lay-men so called is not inconsistant with being a Preacher of the Gospel When God added to the Church it was through Lay-mens preaching such as Fisher-men Handicrafts-men and such like 'T is Popery and the Popish Spirit that would hinder Lay-men and labouring men being indued with the holy Spirit from being Preachers of the Gospel and not the Spirit of Moses who wisht that all the Lords People were Prophets nor the Spirit of the holy Prophets Christ or his Apostles who did not go about to exclude Lay-men or Mechanicks so called from preaching the Gospel for the best Preachers were generally such in the Prophets and Primitive Christians dayes R. There is a Law And the Church of England will never be at quiet till some of you be Hanged by that Law or till such fellows as you are Hanged G.W. The Court may see the frame of the Recorders Spirit towards us and that he stands not as a Person Indifferent but a party against us Thou oughtest not to inveigh against the Prisoners nor threaten us That stands not with the indifferency of the Court nor yet thy determining or resolving afore-hand against us as thou hast done Judges ought not to declare their Opinions afore-hand against the Prisoner Hussey the Chief Justice would not do it to the King in the Case of Humphry Stafford the Arch Traytor but begged of the King He would not desire him to declare his Opinion afore-hand that the Prisoner might come Judicially before him and have Justice done him See Cook 3 part Inst fol. 29. And the King accepted his Request in the Case Interrupted R. What King 's Reign was that in G.W. In King Henry the sevenths R. I perceive you have read or are read G.W. Seeing that none of the Court have as yet had any Hand against us except the Recorder we may charitably hope that the Court will stand indifferent towards us and let us have a fair hearing before any Determination For as the Laws of our Nation require a due process a due course of proceeding before men be Sentenced or Condemned So there ought to be a due hearing As where a process or proceeding consists of several parts each part ought to be enquired into and answered in due order without confounding one thing with another or putting that first which in course is last Let us have a fair hearing and Tryal Let 's be tryed before we be Hanged Let 's not be Hanged first and then Tryed 'T will be too late to try us after we are Hanged c. R. You were sent to Prison for refusing the Oath of Allegiance G.W. That 's a mistake We were sent to Prison for being at a Meeting charged to be against the Peace which is the Premisses in our Mittimus to which we are here to Answer And therefore that all may know what is laid to our Charge we desire our Mittimus may be read that so if there be any Persons that will undertake to prove the matter in Charge let us see them and have liberty to answer the Premisses contained in the Mittimus R. I will shew you that when a Person is committed to Prison he may have several Actions laid upon him if new Charges be brought against him c. Prisoner I grant that But that 's not our case for we presume the Recorder had no new matter brought against us after he committed us to Prison and therefore could not lay any new charge upon us T.B. There could not be any new Charge against us to render us suspitious of being Jesuits or Papists but instead of that we have Certificates to take off any Jealousies of that kind that might be in any concerning us
the second 't is not reasonable the first should be insisted on in opposition to the latter considering that Axiome or Principle i.e. Benigna favorabilis Interpretatio semper praeferenda est praesertim simateria legis sit poenalis ediosa i.e. A gentle and favourable Interpretation ought alwayes to be preferred especially if the matter of the Law be penal or grievous To conclude on some Questions and Considerations instead of an Argument more absolute though the Statute before-mentioned i.e. 3 Jac. c. 4. and 7 Jac. c. 6. be not actually repealed yet the Question is Whether they do give the Justices power to require the said Oath universally of the Subjects of the present King and to prosecute them to a Praemunire thereupon for not taking it 1 st Consider that the form of the said Oath is limitted and prescribed by the said Statutes to be taken respectively in King James his Name and by his Subjects for the Tryal how they stand affected in point of their Loyalty and due Obedience and not mutatis mutandis in the Name of King Charles the second and by his Subjects in general or without exception 'T was King James his Subjects and not those of King Charles the second after his decease that were by those Laws required to take it and thereby were bound to him and his Heirs The Allegiance was to him and his Heirs but how do these impower the administring of that Oath of King James to the Subjects of his Heirs That these Laws seem not to warrant therefore how can the said Oath be legally required by the same Laws of the Subjects of King Charles the second or any of them run to a Praemunire thereupon without being re-inforced or renewed by Act of Parliament And can that be without mutatis mutandis King Charles the second in the Oath instead of King James ‖ But it may be hoped that after these many Years experience more safe Expedients may be found out for securing the King and Government than this or other Oaths for those that are Perfidious can easily break over such Hedges And those that are known to be of peaceable Conversations need them not nor is it for the Honor of Princes to be rendred jealous or suspitious of their peaceable Subjects by such tyes and shakles which produce not a true natural Allegiance For even the present King in his Declaration Dec. 26 1662. hath declared His Royal dignity and greatness much more happily securely founded on his Clemency and his subjects Loves than in their Fears his Power Further adding these Words The sole strength and security we shall ever confide in shall be the Hearts and Affections of our Subjects indeared and confirmed to us c. Observation For as Judge Cook saith Neither can any Oath allowed by the Common Law or by Act of Parliament be altered but by Act of Parliament c. Cook Instit 3 part fol. 165. As the Oath of the Kings Privy-Council the Justices the Sheriffs c. was thought fit to be altered and enlarged but that was done by Authority of Parliament For further proof whereof saith he see the Statutes here quoted and it shall evidently appear that no old Oath can be altered or new Oath raised without an Act of Parliament or any Oath ministred by any that have not allowance by the common Law or by Act of Parliament Vide 5 R. 2. c. 12. 6 R. 2. c. 12. 4 H. 4. c. 18. 2 H. 5. c. 7. 8 E. 4. cap. 2. 1 R. 3. c. 6 and 15. 19 H. 7. c. 14. 14 H. 8. c. 2. 23 H. 8. c. 5. 3 H. 8. c. 5. 23 H. 8. c. 46. 2 E. 6. c. 13. 27 Eliz. c. 12. 3 Jac. 4. Mag. Char. c. 6. Stanf. pr. 17. F. N. B. 264. W. 1. 3 E. 3. c. 40. 18 E. 3. To conclude this point it was resolved in Parliament holden Anno 43 Eliz. that the Commissions concerning Polices of Assurances could not examine upon Oath because they had no Warrant either by the common Law or by Act of Parliament and therefore it was Enacted at that Parliament That it should be lawful for the said Commissioners to examin Witnesses upon Oath c. Oaths that have no Warrant by Law are rather Nova tormenta quam Sacramenta And it is an high Contempt to minister an Oath without Warrant of Law to be punished by Fine and Imprisonment Observe another Instance 2 dly In the 12th Year of the present King it is enacted by the Parliament 12 Car. 2. c. 23 24. that no Persons should be imployed in any Office relating to the Excise untill they shall take the Oath of Allegiance and Supremacy before two or more Justices of Peace together with the Oath therein inserted mutatis mutandis And likewise it is Enacted 14 Car. 2. c. 3. That no Person being under the degree of a Peer in this Realm shall be capable of acting as Lievtenant Deputy-Lievtenant Officer c. unless he or they shall first take the Oaths of Allegiance and Supremacy c. Consider hence whether the making these new Laws in Car. 2. does not argue the old Laws cited insufficient in the same case of requiring the said Oath now By an Act in the thirtieth Year of the present King Entituled An Act for the more effectual preserving the King's Person and Government 30 Car. 2. It is Enacted That no Person should Vote or sit in the House of Peers or House of Commons untill he first take the several Oaths of Allegiance and Supremacy And observe that the refusal by these Acts does not incur a Proemunire but only the forfeiture of their Places or Offices And what necessity could there be of these Acts in King Charles the second if these in King James were sufficient or not expired especially as to that severe Penalty of Paemunire meetly for refusing of that Oath as 't is required in terminis by those Laws of King James For in the 7 Jac. cap. 6. The Members of Parliament are required to take the said Oath as it was to King James and in his Name If that were still in force and sufficient what need were there of any new Laws as before to require it of Subjects under the same Circumstances now as then To conclude the Penalty of Praemunire is so severe that 't is more suitable for Rebels or Persons breaking their Allegiance to the King than for Persons only refusing to Swear it meerly for Conscience sake whilst they faithfully perform their Allegiance and intend no other but to demean themselves as peaceable minded Christians and true Protestant Subjects A more general Plea in the Prisoners case and behalf relating both to Conscience Reason and Equity First In reference to the Grounds and Reasons of the Oath of Allegiance Secondly In reference to the Reason of the Penalty of a Praemunire according as both are clearly specified in the Titles Preamble and Purport of the Statutes in
therefore to will and require you to receive and keep the said George Whitehead and Thomas Burr in the common Goal for the City and County aforesaid until they shall be from thence discharged by due order of Law And hereof fail not Given under my Hand and Seal the 21st day of March Anno Dom. 1679. To the Constables of the Ward of West-Wymor and to either of them to convey and to your Keeper of the Common Goal aforesaid to receive and keep the said George Whitehead and Thomas Burr according to this Warrant G.W. Does the Recorder own this to be a true Copy Yea or Nay R. I care not whether it be true or false there 's another Mittimus against you c. G.W. Let this Mittimus be considered first Doft thou own it to be a true Copy or no We have it attested R. It may be it is what then It may be true for ought I know c. or to that effect G.W. Then pray observe this Mittimus the Tenor of it what it contains 1 st As to the Cause of our Commitment 2 dly That is the Premisses which we are to answer to and to be tryed and delivered upon 3 dly And that according to Law or according to due course of Law c. 1 st Then the Charge concerns matter of Fact i.e. being at a Meeting And 2 dly What such a Meeting or how qualified i.e. A Meeting in Disturbance of the publick Peace c. These are the matters in Charge against us which the Court ought to take Judicial Cognizance of either to acquit us if Clear or to condemn us if Guilty of any such Meeting R. Read the other Mutimus you have a Copy doubtless G.W. We have a Copy of the second Warrant But this is not to be evaded this is the Mittimus this contains the Cause of our Commitment and the Charge that lies against us c. which the Court is bound only to take Cognizance of for we are thereby referred to the Quarter-Sessions R. Read the second Warrant that contains the Cause to wit my tendring you the Oath c. By taking whereof you ought to shew your Allegiance or Obedience to the King G.W. Either the Mittimus is a Legal Mittimus or 't is Illegal If Legal then let 's answer to the Premisses c. If the Oath be insisted upon to evade the Mittimus that will bespeak either want of other matter against us or else that the Mittimus or Commitment is Illegal R. Read the second Warrant c. G.W. We have Exceptions against the second Warrant If I read that the Exceptions ought also to be read Shall read them when I have read the Warrant Court Well you may read both G.W. Now the Court is engaged and concerned to make good the Liberty granted me to read our Exceptions when the Warrant is read The second Warrant read which follows City and County of Norwich WHereas George Whitehead and Thomas Burr were lately sent by my Warrant unto the common Goal for the City and County aforesaid Francis Bacon for being Seditiously assembled with some hundreds of other disloyal Persons against the publick Peace and in contempt of the Laws and Government of this Realm Now for that the said George Whitehead and Thomas Burr are suspitious Persons and Strangers to this City aforesaid and being unwilling to declare that Duty which they and every true and well affected Subject ought to bear by Bond of Allegiance to our Gracious King they did severally refuse to take and pronounce the Oath of Obedience to the King's Majesty duely tendred unto them and after they were severally required to do the same by me These are therefore in his Majesty's Name to will and command you to keep the said George VVhitehead and Thomas Burr in the common Goal for the said City and County without Bail or Mainprise until the next General Quarter-Sessions of the Peace to be holden for the City and County aforesaid and hereof fail not Given under my Hand and Seal the 23d day of March Anno Dom. 1679. To the Keeper of the Common Goal for the City and County of Norwich G.W. I hope the Recorder cannot deny the Copy to be true R. I will vindicate it by Law in any Court in England c. or to that effect G.W. Hear the Exceptions against this Second Warrant I 'le read them deliberately If the Court has any thing to object against any particular that may be read over again after the first reading Court Read them Go on c. The Exceptions against the second Warrant for detention of the Prisoners in the Common Goal without Bail or Mainprise bearing date the 23d day of March Anno Dom. 1679. Exception I. First The Prisoners being committed till Sessions there to answer to the Premisses contained in their Mittimus Therefore the Court ought to take Judicial Cognizance thereof that is of the Charge contained in the said Mittimus for their Tryal and Discharge thereupon by due order of Law and not to suffer the second Warrant to be insisted upon nor the Mittimus to be evaded Exception 2. Secondly Because that after the Command given to the Keeper to keep them in the Common Goal until the next General Quarter-Sessions c. The Lawful Conclusion is wanting viz. Until they shall be delivered by due Course of Law See Cook in the 2d part of his Institutes fol. 52. concerning a Commitment by Lawful Warrant ††Note that the Prisoners foreseeing that the Recorder would insist upon the second Warrant as the Mittimus did therefore prepare this second Exception The Warrant or Mittimus faith he containing a Lawful Cause ought to have a Lawful Conclusion viz. And him safely to keep until he be delivered by Law c. And not until the party committing doth give further Order And this doth evidently appear by the Writs of Habeus Corpus both in the Kings Bench and Common Pleas Exchequer and Chancery Again he saith Secondly The Mittimus ought to be as hath been said till he be delivered by Law Ibid. Cook 2 part Inst fol. 53. Again now as the Mittimus must contain the Cause so the Conclusion must be according to Law viz. The Prisoner safely to keep until he be delivered by due order of Law and not until he that made it shall give other Order or the like Ibid. fol. 591 592. Exception 3. The third Exception is deduced by way of inference from the second Thirdly Therefore the Justice had no Legal Power to give other Order or Warrant which interposeth between his Commitment of the Prisoners and their Delieverance by due course of Law which is mentioned in the Warrant of Commitment but not in this pretended Warrant for detention The Justice who committed the Prisoners had no legal Jurisdiction over them thus by himself to interpose to fasten them They were thrust out of his hands by their Commitment and thereby referred to the
Quarter-Sessions for their Discharge thereupon by due Order of Law Interruption on the reading the third Exception in this Objection viz. R. If a man owe twenty men Money the first that Arrests him lays him into Goal but the other may lay their Actions upon him for all that Or if a man Robs in several places and is laid into Goal for one Robbery and there comes a Hue-and-Cry after him for another shall be go free of that because he is Arrested already G.W. That 's not our Case there 's no parity between them We were not committed to Goal on any such account as upon any Action of Debt Robbery c. Nor were we Chargeable with any new Matter or Crime when the second Warrant was writ more than when our Mittimus was writ and we first committed to Prison Pray let me read on the Matter 's further cleared Exception 4 Fourthly The second Warrant is contradictory to the first in that it admits of no Bail nor Mainprise for the Prisoners which the first admits of in these words viz. Being required to find Sureties for their respective Appearances at the next General Sessions Whereas the Prisoners were no more Criminal when the second Warrant was made than when the first was made being then in Hold upon their Commitment Exception 5. Fifthly The Prisoners were not Convented nor had in Examination before the Justice when the second Warrant was made to answer for themselves as they ought Judicially to have been if he had any new Matter unbailable against them or any matter of such High and Criminable Nature when he made the second which he had not when he made the first as to render them uncapable of Bail Therefore his second Warrant is Illegal and Extrajudicial and the Court is bound to take notice of it After the fifth Exception the Recorder again Interrupted viz. R. While I have to do here I will not suffer my self to be thus reflected upon It is a Dishonour to the Court. Court How many more have you to read G.W. But a very few I shall quickly have done You may call for any of them to be read over again when I have done Court You may go on Go on Exception 6. Sixthly If it be objected That the Prisoners refused to take and pronounce the Oath of Obedience to the King being duely required by Justice Bacon That is an apparent Mistake If the Warrant of their Commitment be of Credit it shall be Evidence in that it admits of Baile as before Which the refusal of the said Oath being so required admits not of But the Prisoners were not committed on that Account And therefore the second or Collateral Warrant which is of another date and no Commitment is grounded on a mistake in that point and is an extrajudicial thing And therefore not to be taken notice of but rejected by the Court and holden for none Exception 7. Seventhly Justice Bacon could not legally not duly require the Prisoners aforesaid to take the said Oath according to the Tenor and plain express Words of the Statutes provided in that case They not being under those Circumstances and Causes which the Law provides and limits as precedent to one Justice his being Authorized to require it See 3 Jac. c. 4. and 7 Jac. c. 6. and Dalton Just pac fol. 94 and 95. Upon the seventh Exception when read the Recorder alledged thus viz. R. If I find you under any one of those Circumstances or Causes I might tender you it Observation added 1 st But he did not assign or shew any one Circumstance that the Prisoners were under to Warrant his alone tender of the Oath However he hereby granted That he had no Power alone to require the said Oath without limitation of such precedent Circumstances 2 dly The Circumstances and Causes precedent and prescribed by the Statute 7 Jac. c. 6 are The Persons standing Indicted or Convicted for not coming to Church c. or complained of by the Minister Petty-Constable and Church-Wardens or any two of them to any Justice of Peace near adjoyning to the place where any Person complained of shall dwell c. 'T is only in such case that one Justice has Power to require the said Oath His Power is apparently limitted by the Law to certain precedent Circumstances under which Circumstances and Capacity neither the Prisoners nor the Justice stood and therefore were not in statu quo for the Oath to be legally required of them by one Justice Exception 8. Eighthly The Oath of Obedience could not be legally tendred on the 21st of March 1679. being the Lord's day Because that no Writ Process Warrant Order Judgment or Decree are to be served on that Day except in cases of Treason Fellony or breach of the Peace which the Case of the said Oath is none of It is a case of it self distinct See the Act for the better observation of the Lord's Day commonly called Sunday Anno vicesimo nono Caroli secundi 1677. After the eighth Exception being read R. Now you have prepared a Knife to cut your own Throat withal by that Exception In case of Treason Fellony or breach of the Peace your Meetings are against the Peace c. or to that effect Observation 1. That the Recorder did not deny the tender of the Oath to be process or a proceeding in Law Nay we presume he could not deny it G.W. That our Meetings are against the publick Peace remains to be proved upon the Premisses of our Mittimus prevented and interrupted when these Words should have been added being clearly intended for Argument in relation to the Exception Observation 2. viz That the tender of the Oath of Allegiance is a case of it self distinct from the Cases of Treason Fellony and breach of the Peace For it cannot be Justice to excuse or acquit Traytors Fellons or Breakers and Violaters of the Peace by tendring them the Oath of Allegiance or by their taking it That were an easie way for Traytors and Fellons c. to escape the condign punishment of the Law There 's other process or proceeding in Law more properly limitted and assigned against them For how many Oaths would not Traytors and Fellons take if Swearing would free them from the Judgment or condign punishment of the Law What Oaths would not such take to save themselves Observation 3. That seeing the Recorder seem'd not to deny the tender of the Oath to be a process in Law His Answer i.e. That your Meetings are against the publick Peace was besides the point His requiring the Oath is neither the Process nor the Penalty of the Law for the breach of the publick Peace They are distinct Cases and Processes R. Have you any thing against the Oath of Allegiance Or do you except against any thing contained in it G.W. We have nothing to except against the Declaration of Allegiance contained in it as to the Substance thereof T.B. We shew our Allegiance by our Conversations
add and abhor those Treasonable Practices and Positions which are abjured by that Oath G.W. Suppose we have such a scruple of Conscience as that we cannot Swear Allegiance whilst we both practice it and are willing to declare it and to sign the Declaration or substance of our Allegiance Can it be equal or just to run us to a Praemunire to forfeit our Estates Liberties c. only for want of Swearing How can that be either secundum qualitatem or secundum qualitatem delicti as 't is supposed R. You talk of Conscience Friend Friend let me ask you one Question Pray what is Conscience G.W. 'T is that Knowledge that God hath placed in man 't is a knowing together between God and our own Souls by Virtue of the Law of God in man whereby he knows what 's Good and what 's Evil and whereby he is taught to embrace the Good and shun the Evil. 'T is called The Law of Truth the Law of Equity the Law of Reason c. Against which Law says the Law-Book Doctor and Student no Law nor Custom ought to be brought but 't is void R. Although I asked you a Question I did not bid you Preach upon it But Conscience may be seared as when men will not be reclaimed but have their own Wills be they never so contrary G.W. 'T is true some mens Consciences become hardned and seared through sinning and for want of being exercised by that Law of God in them Yet there 's an Universal Law of Truth in mankind whereby even the Wicked and those of seared and hardned Consciences shall finally be convicted and awakened in Torment c. R. You must have the Oath put to you The Court must tender you the Oath of Allegiance Will you take it c. G.W. We lie under a Charge in our Mittimus Let 's be discharged of that first That contains the Premisses which we are to Answer to Let 's not be Hood-winked Are we discharged of the two Warrants that are against us yea or no The rest of the Court ought to know that one thing may not confound another R. You talk Law as you talk Gospel Here you talk a little and there you talk a little It is pity you have the benefit of the Law You put your selves from the Protection of the Law G.W. The Recorder is a party against us He 's our Accuser Prosecutor and Judge He inveighs against us He 's determined against us He has told his Resolution afore-hand c. One Justice You offer Contempt against the King in what you say against his Minister The Recorder is his Minister or to the same effect G.W. No such matter I only oppose an undue and irregular Proceedure which is not the King's Will c. R. Your Words tend to stir up the People here to Sedition G.W. We have no such design We only plead our own Rights as English men The Loosers must have leave to speak Our Liberties and Estates and Families are concerned Our Wives and Families suffer by our restraint c. R. Clerk tender him the Oath offer him the Book Clerk reads I George Whitehead do truly and sincerely acknowledge profess testifie and declare in my Conscience c. G.W. Forbear We have matter of Plea which ought to be heard first c. Note Here a great Noise was made by some present Cryer O Yes Silence in the Court c. G.W. We beg of the Court that we may not be thus run upon but duely heard upon the Process we suffer under R. Will you take the Oath Answer and then you shall know the pleasure of the Court. G.W. We ought to be at some certainty whether we are discharged of the Premisses laid against us in the two Warrants The Recorder was even now for Indicting us at Common-Law Now he 's all in haste to put the Oath upon us Thus he appears inconsistant with himself He 's not now lex loquens to be sure for the Law speaking doth not contradict it self He 's not the Mouth of the Law in running thus unduely and abruptly upon us with the Oath to evade the Premisses which we were to Answer to Are we discharged of the two Warrants Yea or No Let 's have the plain Advice or Sense of the Court. R. It may be you may suppose you be discharged What 's the Consequence you 'l infer thence G.W. We desire a plain Answer We are not to be answered by Supposition nor thence to draw Consequences now We are not called hither to dispute upon an Hypothetical Argument We expect a positive plain Answer and the sense of the Court concerning our Mittimus and Warrant Are we discharged of them or not Some of the Court to the Recorder Let them be discharged of them Some of the Court You are discharged of them G.W. Does the Recorder say so Does he assent to it Let Proclamation be made of it then that we may be set at Liberty in the same Capacity we were in before we were first Arrested R. No no seeing you 'l take your way I 'le take my way You shall have the Oath first and then your Discharge Will you take the Oath and then you shall be discharged What say you to it Read the Oath c. T.B. It is a force put upon us 'T is very hard dealing we may not be duely heard c. G.W. Are the rest of the Justices of the same Mind that we should be thus run upon We hope you are not all of the same Mind with the Recorder in this Proceeding He is engaged against us He 's resolved to make something of it and to make us Exemplary in Suffering R. Stop his Mouth taâ—… him â—…ay They had not only need to have their Haâ—…s puâ—…d off but their Mouth stopt also This the Prisoner did not fully hear others affirm they heard it G.W. Pray hear us we have more to offer as about this tender of the Oath to shew how undue it is if you 'l but suffer the Law to be read which we desire Hut we ought first to have had Proclamation made for our Discharge from the two Warrants R. If we should wake Proclamation and let you go we should be Laught at No no. I see you lay upon the catch We will not discharge you Now we have you hear we shall not let you go for to send a Warrant after you to fetch you again Will you take the Oath or not G.W. Is this intended for a first tender or a second We desire an Answer R. We 'll tender it you de Novo It shall be for a first tender and if you will not take it you shall be committed till next Sessions c. Clerk reads the Oath Clerk Thomas Burr do truly and sincerely Acknowledge Profess Testifie and Declare in my Conscience c. G.W. We appeal to the Mayor and the rest of the Justices The Recorder is a Party against us he has determined against us aforehand I
the Liberty to come before you in your Council-Chamber though it be with a Keeper that we may shew you one material Point of Law in the Statute Book relating to this De novo or New tender of the Oath in your Quarter-Sessions which we now suffer under it being the same Point that we were carâ—est to have shown you out of the Statute Book but were foreinly prevented In granting us this small Request you may happily be capable of doing your selves and us more Justice and Right than you may at present be aware of 'T is not too late to reverse an Error and embrace Truth when made appear in any Case not will any sincer Mind soon the Discovery of either 'T is in Real Love and Good Will to you this Proposition by way of Request is made for your own sakes as well as ours We design no Tediousness to you 〈◊〉 Case is now contract into a arrow Compass What we have to shew you is both very brief and caste to understand 't is directly â—…tuâ—e-Law Out Confinement before Sessions was but One Mans Act but now others of you are concerned Howbeit we may Reansonably as well as Charitably think and believe that both the forcible tender of the Oath whilst not actually discharged and freed from our Imprisonment and the Conclusion against us for our detention were rather the hasty and indiscreet Acts of one Person carried on over your Hands than of the whole Court or Major part thereof and hope that as you calmly come in Gods sight to the Righteous Test of Conscience and Truth and upon better deliberation consult the Law in our Case 't will so appear to your Understandings We are yet willing Charitably to think and hope the best concerning you in this weighty Concern of our Liberties Estates Families and consequently our Lives which are exposed to Jeopardy and Ruin through our present Suffering among you Nevertheless our Case is not desperate in the Eye of the Law They who are appointed Ministers of equal Law and Justice ought to understand both before they pass Judgment or inflict Punishment As Michael Dalton puts the Commissioners of the Peace in mind how that justice may be perverted many wayes if they shall not Arm themselves with the Fear of God the Love of Truth and Justice and with the Authority and Knowledge of the Laws of this Realm c. Among which Causes of Pervertion he mentions these viz. I. FEAR When fearing the Power or Countenance of another they do not Justice quoting Deut. 1.17 II. PERTURBATION of Mind as Anger or such like Passion quoting James 1.20 III. IGNORANCE or Want of True Vnderstanding what is to be done Ignorantia mater erroris IV. PRICIPITATION or too much Rashness as when they proceed hastily without due Examination and Consideration of the Fact and all material Circumstances c. Thus far M.D. We design no Personal Reflection but only tender Information and Caution in these Passages The thing we aim at is but the leave of a few Minutes before you to shew you the Point of Law mentioned which we forbear to relate in Writing to you as not being so proper or seasonable for us to do at present considering the Cercumstances which we are under We are Your Real Friends and Well-wishers George Whitehead Thomas Burr Norwich-Prison the 8th of the 3 Mon. called May 1680. POSTSCRIPT THis Provision we would further add That if so be our Proposal of coming before you in your Council-Chamer may not be accepted or be not thought seizable we then desire you would please to transmit our Request to your Quarter-Sessions yet in beeing upon Adjournment that we may have the Liberty at your next meeting in your Court of Sessions briefly to offer what we have to Plead in point of Law to your serious and more deliberate considerations about the late tender of the Oath de Novo according as we desired farther time for the same purpose when last in Sessions Here follows the substance of a farther Application made by the Prisoners aforesaid to the Mayor Recorder Justices and Aldermen of the City of Norwich delivered to them the 17th day of the 3d Moneth 1680. being the last day of the Quarter-Sessions THe first part relates to the Mediation of certain Persons of Note and Eminency ††Whose Names are not thought meet to insert in this place Some Magistrates of Norwich understood who they were on the Prisoners behalf and particularly by a Letter from London from a Person of Quality on some Application made by some of their Friends there unto which the Prisoners refer the Magistrates in these words viz. We therefore request that you would please to call for the said Letter and know the Contents thereof that if such Mediation may take effect with you for our Enlargment we may not put you nor our selves to trouble upon any further Motion Otherwise if you be not pleased to accept thereof so as to grant us our Enlargment we have another Proposition to make on this wise viz. Whereas we the Prisoners whose Names are hereunto subscribed do find our selves oppressed and grieved not only by the Illegal Proceedings as we conceive of the late Recorder in our Commitment and detention in Prison by two Erronious Warrants which were reverst in Court but also by his late Commitment from Sessions which not only we do conceive to be illegal and contrary to the Form and Order of Law prescribed in the Statutes but also we have the Advice and Judgment of able Counsel in the Case averring This last Commitment Not Good BUT AGAINST LAW c. Upon which Premisses if you please not to allow us Remedy on the Mediation aforesaid we do in Humility request That you will please to call us into Court before this Sessions be ended and grant us the Liberty but briefly to offer our Exception in point of Law unto your serious and deliberate Considerations in order to afford us so much Relief and Right as may either by apparent Law Equity or good Conscience be allowed us Your Friends and Prisoners George Whitehead Thomas Burr Dated Norwich-Goal the 12th of the 3d Moneth 1680. ON the aforesaid 17th day of the 3d Moneth 1680. our Friends Mary Duncon and Mary de France of Norwich attended the Court of Mayor and Justices in their Council-Chamber and delivered the aforesaid Application and Certificates to them where they were read as the Prisoners were informed After the Mayor and Justices came down into the Hall our Friends abovesaid attended the Court of Sessions and moved for the Liberty of the Prisoners as some of the Justices had before directed To which others of them said That could not be for they were committed by Order of Sessions which the Steward being then Judge of the Court in the Recorders absence caused to be read Mary Duncon then requested the Prisoners might be called into Court and heard the new Recorder having promised her as she affirmed
in his Warrant 5 thly The Warrant of our Commitment till the Quarter-Sessions granted us Bailable 6 thly But several dayes after he interposed with another Warrant which he sent to the Goaler to detain us without Bail or Mainprize till Sessions when he had no new matter against us 7 thly By his first Warrant we were referred to the Quarter Sessions to Answer to the Premisses contained therein and to be delivered by due order of Law 8 thly By his second Warrant he put other Premisses upon us to answer to at Sessions about his alone requiring the Oath of Allegiance of us which he could not warrant by the Law 9 thly At Sessions he would not suffer our Mittimus to be read till over-powered by the rest of the Justices 10 thly He appeared a Party and open Adversay against us telling us there is a Law to Hang such Fellows c. 11 thly He would not suffer our Certificates to be read in Court as we earnestly requested being from certain Officers of Note and other Credible Perâ—…s of our Neighbourhood to remove the unjust Aspersion and Suspition of our being Jesuits or Papists prejudicially insinuated against us * * By the Informers and himself 12 thly He would not suffer the Law to be read in Court as we requested upon which he then required the Oath de Novo We must confess That as to the late Commitment we have not understood that you have undertaken to justifie it We are perswaded you are more ingenious and wiser men Only for the tender of the Oath de Novo in Sessions by Francis Bacon the words Or any other Person whatsoever 3 Jac. 4. were alledged although we cannot reasonably understand that any other Person whatsoever in Court should be more severely dealt withal then the Popish Recusant under prosecution so as to be run to a Praemunire for once refusal upon a surprizal in Court when as the method prescribed for the Popish Recusant is a first Tender out of Court and a Commitment for refusal and a second in Court and refusal again before Praemunire see what Council further saith in the case viz. touching the Sessions Justices tendring the Oath as it follows that of a first tendring I did mean and did intend a second tendring and that must be to a Person under such Circumstances as in my latter Paper and in this Letter c. according to that of 7 Jac. 4. I know the Words or any other Person in 3 Jac. 4. have in these late times been Construed generally but certainly it is not within the meaning of that Law which is truly and only extensive to Popish Recusants About the Offenders incurring a Praemunire that must be a tender of the Oath at the Sessions according to that Law which must be a second Tender as above i.e. after a first tender of the Oath out of Court upon which the party refusing is committed to the common Goal according to his other Paper on the 3 Jac. 4. and 7 Jac. 6. And M. Dalton plainly expresseth the same sense of the Law in the Case under the Title Recusants Dalt Inst pac fol. 94 95. But Friends Pray take it not amiss if we do a little further reason in our own case we being the Sufferers and Loosers If an order of Session be it right or wrong cannot be reversed or dispensed withal out in Sessions Then we may coâ—clude we have suffered wrong in not being admitted a hearing the last day of the Sessions as was before granted if not promised and as we earnestly desired and our Friends moved for it in Court to have made our exception agaâ—nst the late Recorder's irregular Proceedings and his said Order whereby we are detained we having matter against both â—o that the same Sessions upon a further discovery had Power as well to have reversed the Order or discharged us as an Error in process may the same Term be reformed in the same Court And further If a Person committed to Goal by the Justices with these Words in the Mittimus Scil. without Bail or Mainprize Wâ—ere the Prisoner is bailable by Law may be let out upon Ban by other Justices which we suppose is not to be denyed Daâ—t fol. 280. Then by the same reason Persons illegally committed at Quarter-Session may be discharged before next Sessions For such order is no otherwise in force then 't is according to Law and not because the Justices made it And none ought to be wrongfully detained or delayed in Prison any more then wrongfulâ—y or faâ—sly Imprisoned Also for two or three Justices within their Power and Commission to reverse a wrong Commitment or Erroneous Process especially where they might have the consent of the rest as you might in our case is but to make void that which in it self is void in Law and to be holden for None To be sure Magna Charta the Petition of right and the common Law or Reason of the Land with many ancient and good Laws wherein the Liberty and Property of English men are concerned strictly prohibiting illegal Imprisonment denying or delaying Justice c. These will out Ballance the circumstance of any Order or Warrant nâ—t self unwarrantable The most that can be charged against us as to matter of Fact since we were Recti incuria by being discharged from the matters contained in our Mittimus and Warrant is our not Swearing Allegiance We were no Offenders till a Trap was laid to make us such by Francis Bacon in his Abruptly surprizing us with that Oath to run us to a Praemunire a he had threatned us aforehand whereas the Law was never intended to ensnare and entrap Men. And God knows our not Swearing is not for any the least favour to those seditious and treasonable Practices Principles and Positions abjured and renounced by that Oath for they are an Abhorrence to us For if we were so Unnatural and Perfidious as to reserve any such wicked Principles we might as casily equivocally swallow that or any other Oath for our own Interests But let such Collusion and Fallacy be forever far from us 'T is only for fear of offending our Lord and Master Christ Jesus as in all other cases For we your Prisoners never took an Oath in our Lives we dare not Swear in any case because of Christ's and his Apostles universal Prohibition in that case as we understand it and many of the Primitive Christians and Martyrs even Protestant Martyrs were of the same mind We freely and publickly â—ssâ—nted to the Declaration and Promise of Allegiance contained in the Oath and hope ever to be found in the Practice thereof only we are under a Conscientious restraint not to Swear it We are no Papists nor in the least Popishly affected but wâ—…olly averse to Popery as is well known to many What 's then wanting on our parts in this case Is it not only in that we Swear not to that which we profess and practice Pray then
have so much Charity Humanity and good Nature towards us as not to think so hardly of us for our Conscientious perswasion as if we justly demerited any such severe Penalty a the Judgment of a Praemunire to be put off the Kings protection c. next to the punishment of Traytors when we bear no ill will to the King we have notâ—ing but Love and good Will to the King and his People Surely that Severity cannot in Reason or Equity be adjudged secundum Qualitatem quantitatem delicts supposed in our case if due measures be taken according to Equity and the Law of God in the Conscience which as the Learned conclude admits not in all cases of taking all that the Words of the Law give for that were sometimes to do against the Law To follow the Words of the Law saith Doctor and Student were in some cases both against Justice and the Common-Wealth Wherefore â—n some cases it is necessary to leave the Words of the Law and to â—ollow that which Reason and Justice requires as it is asserted Dâ—ct and Stud. pag. 27. Every man ought to have a due recourse and regaâ—d unto thiâ— inward Law of Reason and Equity in his Actions for which all aâ—e accountable to him whose Eyes are upon all the wayes of the Sons of Men. If we be questioned why we did not procure a Writ of Habeas Corpus before or at first We Answer We were not willing nor advised to do that because we did not despair to have Justice done us among you here nor do we yet which we really reckon more Honourable for this City than to delay us under a wronful Imprisonment And now as praecipitatio morosa cunctatio i.e. Too much rashness casting men down Head-long and Froward delay are accounted two great Adversaries to the due Execution of Law and Justice and we really apprehend our selves injured by the first especially through Francis Bacon's precipitant procedure We desire that none in Authority in this City may be concerned in the last towards us to the prolonging us under this restraint so far remote from our Families and Concern to the injuring of their own Consciences as to their inward Peace and our further Oppression and Grievance Moreover being sensible of a divine Hand of Providence in permitting our suffering in this place as also that our Religious cause should lose nothing by our Imprisonment as we told Francis Bacon at first we have been the more Armed with Patience and clearness of Spirit in Love and Good Will towards the Magistrates of this City Also our tenderness and respect to them has been some stop to us hitherto from presenting our Grievance â—as a Formal case to the King ‖ ‖ Though we suppose he had heard by others of it and Council which we really intended by way of Complaint if the late Recorder had continued in place seeing him so much bent against us and if the Justices would have been swayed by him as that we could not have found Relief from them after Application made to them And then from so little Converse and Solicitation as I * * i.e. G.W. have been concerned in at Court I could easily presuppose how the Irregular and Arbitrary proceedings of Francis Bacoâ— and the others Omission apparently repugnant to the Interest of both King and People would have been resented and what Reflection it would have procured Which method we find advisable and warranted for any Subject that is â—uâ—tâ—r grieved in any thing that Remedy may not be delayed as 't is very plain in the Stature 4 Hen. 7. cap. 12. which Judge Cook insists upon as a necessary Caveat to all Justices of Peace See his Institutes 4 part fol. 170. The Party grieved being directed to make complaint to the Justice or Justices and to cesire Remedy and if he have no Remedy to shew his Complaint to the Justices of Assize if it be nigh the time of their coming but if it be too long before their coming then the Grieved to come to the King's Highness or his Chancellor to shew his Grief Whereupon the King shall send for the said Justice to know the cause why his said Subjects be not cased And if he find any of them in default in these Prâ—misses he shall do to him â—o offending to be put out of the Commission c. 'T is true we have intelligent Friends at London and that some of them understanding how hardly and wrongfully we have been dealt withal have used some Solicitation on our behalf to some Persons of Quality though we have not as yet given any direction for a formal Complaint to the King upon our case And what Interest hath already been sought or pâ—oâ—ured for us was never intended to interier with the Law or Invalidate the due course of it because they knew we had it hot nor to set up Prerogative above or in opposition to Law and Justice Though we must needs assent that the King hath a Prerogative in all things that are not injurious to the Subject and Fower to disable such subordinate Ministers as do injure any of his Subjects by the undue er Male. Admimstration of Law The Earl of Yarmouth to whose kindness we are much obliged hath been pleased to mediate on our behalf by Letters desiring that all the Favour the Law will allow us may be shewn us as having received sufficient Testimony concerning our Reputation as being no Papists in order to remove that suspition pretended to the contrary to render us Obnoxious And we hope he will be of so much Credit and Repute with you as neither to expose us to the Severity of the Law for our Conscientiously fearing to Swear nor yet to prolong us under restraint upon any such Infamous or Causeless suspicion of what we really are not prejudicially insinnuated * * 1 st By the Informers 2 dly By Francis Bacon by such Questions as the late Recorder put to us As First Are you not in Orders from Rome or have you not Orders from thence Will you take the Oath of Allegiance to distinguish your selves c. Secondly Do you not hold it lawful to Lye or to tell an officious Lye in some Cases Thirdly It might be you might make your Certificate your selves in Prison With such like perverse Insinuations before and at Sessions to render us Obnoxious and Odious and to cover his Erroneous and Arbitrary proceedings God preserve and direct you and us Norwich Goal the 3d of the 5th Moneth 1680. This Account is given you in real Love and Good Will which we can assure you we bear towards you as we are your Friends who truly wish you well G.W. T.B. Delivered to the Recorder by M. Defrance the 10th of the 5th Moneth His absence from the City caused the delay of the Letter so long For proof of matter of Fact in charge that it may plainly appear the said Francis Bacon when Recorder awarded two kinds of Punishments
Rule therefore for all Judges and Justices whatsoever that have Jurisdiction by any Statute which at the first was Temporary or for a time to consider well before they give Judgment Whether that Statute hath been continued or made perpetual whether it be not repealed or altered by any latter Statute Erudimini qui judicatis terram See 2 part Instit 22 H. 8. c. 4. The Exposition upon the Statute of 22 H. 8. c. 5. 4 thly Query But how well do they consider before they give Judgment If they 'l pick up these two or three Words out of one Statute which are after left out in another to warrant a first tender of the Oath in Sessions to any other Person whatsoever though he be a peaceable Protestant and for once refusal to run him to a Praemunire Here they take no notice of the alteration bâ—fore they give Judgment but such Protestants must be more hardly dealt withal than the Papists 5 thly If any other Person whatsoever besides the Popish Recusant under Prosecution in Court may be run to the Judgment and Penalty of a Praemunire for once refusing of the Oath being surprized with a first tender thereof in Court then that any other Person whatsoever may be dealt more severely with than Popish Recusants for they may have time deliberation and the course of Law for a first tender out of Court and a second in Court before Judgment But any other Person whatsoever upon a surprizal by a first tender in Court and refusal doth presently incur Judgment This Interpretation and procedure the Law-makers could never intend with the least colour of Equity or Reason 6 thly It cannot rationally be granted that the Law in the Reason and Equity of it will bear out the Justices not only in requiring the said Oath at their Discretions of any Person whatsoever present in Court but also to give Judgment of Praemunire for once refusal that cannot be the mind or intention of the Law-makers for that were accidentally and upon a surprizal to punish any other Persons more suddainly and severely than those Popish Recusants who are under Prosecution according to the order of procedure therein prescribed and limitted for a first tender out of Sessions and a second in Sessions before a Praemunire Let the Maxim or General Rule be minded in the Case viz. Quod si vox aliqua plures habet significationes proprias usitatas illa cligenda est quae menti intentioni Legislatoris est Magis accommodata i.e. That if any Word have more Significations proper and usual that is to be chosen which is most accommodated to the Mind and Intention of the Law-maker 7 thly The Dis-junctive words insisted on are Or any other Person whatsoever shall refuse to take the said Oath being tendred unto him or her by the Justices of Assize c. And not that the said Oath shall or may be required of any other Person standing by in Court And therefore if the Justices say That he is known to be a Popish Recusant being convicted c. for such that Law intends that 's easily made appear if such or else that he is notoriously suspected which are the most colourable Allegations for a first tender of the Oath in Court to any other Person than him that 's under Prosecution Then it follows that they cannot legally so tender it to any Person whatsoever without exception or limitation but to a Popish Recusant convict or to one notoriously suspected If this last be pretended then it is to be enquired 1 st What he is suspected for What hainous Offence Crime or Principle that renders him so very Obnoxious in the Eye of this Law that he must be more hardly dealt withal upon a surprizal of a first tender in Court than a Popish Recusant under Prosecution 2 dly What occasion is there really against him to render him such a notorious suspected Person and who are his Accusers 'T is no small thing in such a case to bring a Persons Reputation and Credit so publickly into Question in Court especially if he be of good Repute among his Neighbours as no Papish nor Popishly affected which is the said Prisoners case Observation Therefore the real Causes and Reasons of suspition in this and all Criminal cases ought to be considered as for Instance Judge Cook One or more Justice or Justices of Peace cannot make a Warrant upon a bare Surmize to break any man's House to search for a Fellon or stolen Goods c. Vid. E. Cook Instit 4 part fol. 176 177. And it should be full of Inconvenience that it should be in the Power of any Justice of Peace being a Judge of Record upon a bare suggestion to break the House of any Person of what State Quality or Degree soever and at what time soever either in the Day or Night upon such Surmises For Justices of Peace to make Warrants upon Surmises for breaking the Houses of any Subjects to search for Fellons or stolen Goods is against Magna Charta M.C. cap. 29. Neo super eum ibimus neo super eum mittemus nisi perlegale Judicium parium suorum vel perlegem terrae And against the Statute of 42 Edward 3. c. 3. c. Justices of Feace are Judges of Record and ought to proceed upon Record and not upon Surmises Sed distinguenda sunt tempora concordabunt leges i.e. Times are to be distinguished and Laws will agree As to a sufficient cause of suspition see likewise Michael Dalton c. * See also M. Dalton's Justice of Peace fol. 276 of Excommunication of Fellons Communis vox fama that he did the Offence is sufficient cause of suspition viz where such a Fellony is done otherwise not But yet for the better conceiving what may breed or give just cause of Suspition mark some of Mr. Bracton's Rules Ocitur suspitis ex famâ fama vero quae suspicionem inducit oriri debet apud bonos graves non quidem Malevotes sed providas fide dignas Personas idque non semel sed saepius Vanae autem voces Populi non sunt andiendae And therefore where the common Proverb is Vox Populi est vox Dei it should be Vox Populi Dei est vox Dei 8 thly The Words or any ether Person whatsoever c. in the 3 Jac. 4. being left out of the same Clause in 7 Jac. c. 6. and inconsistent with the course of procedure therein for a first tender of the Oath out of Court and a second tender in Court even to Pepish Recusants are therefore not to be insisted upon contrary to the latter Statute As also that passage in the 3 Jac. 4. impowering the Bishop of the Diocess or two Justices to examine Persons upon Oath about Recusancy is also left out of the 7 Jac. 6. Where there 's any inconsistency between two Acts in any clause in the same case especially where the first is more severe tan
the nature of the Oath it self in that case made and provided i.e. 3 Jac. c. 4. and 7 Jac. c. 6. and 16 R. 2. c. 5. Anno tertio Jacobi Regis cap. 4. The Title An Act for discovering and repressing of Popish Recusants FOr as much as it is found by daily experience that many his Majesties Subjects that adhere in their Hearts to the Popish Religion by Infection drawn from thence and by the Wicked and Devilish Counsels of Jesuits Seminaries c. are so far perverted in the point of their Loyalties and due Allegiance unto the King's Majesty and the Crown of England as they are ready to entertain and execute any Treasonable Conspiracies and Practices as evidently appears by that more than Barbarous and Horrible Attempt to have blown up with Gun-powder the King Queen Prince Lords and Commons in the House of Parliament assembled tending to the utter Subvertion of the whole State lately undertaken by the Instigation of Jesuits and Seminaries and in advancement of their Religion by their Schollars taught and instructed by them to that purpose and divers Persons Popishly affected the better to cover and hide their false Hearts and with the more safety to attend the Opportunity to execute their mischievous Designs repair sometimes to Church to escape the Penaâ—ties of the Laws in that behalf provided From all which observe First Who are intended appears by the Title i.e. Popish Recusants Secondly That by the Preamable here 's more than a bare suspicion of many the Kings Subjects being by the Devilish Counsel of Jesuits thus far perverted in those days that it was found by daily Experience Thirdly That the effect and influence that such Perversion had on them was That they were ready to execute any Treasonable Conspiracies and Practices Fourthly The Discovery and Experience of such Treasonable Conspiracy proceeding from such Perversion scil That Horrible Attempt to have blown up with Gun-Powder the King Queen Prince Lords and Commons in the House of Parliament Assembled By all which 't is apparent that this was a manifest and most grevious occasion as 't is specified and that of a very high nature in it self most Barbarous Criminal and Treasonable which being chargeable upon the Counsel of the Jesuits and Seminaries did so far render their Followers suspicious that Provision by this Act and Oath of Obedienee was made and intended for their Discovery and Suppression Now let Honesty Truth Conscience and common Reason judge in the Case what Equity and Justice can there be to pursue the peaceable and innocent People called Quakers upon this or any other Act grounded thereon and to run them to a Praemunire to the utter forfeiture and loss of their Estates and Liberties or to make the said Oath a meer Snare to them for their scrupling to take it purely upon a Conscientious account and not upon any such wicked Principles of Disloyalty as are either Treasonable or tending to the Subvertion of the Government or State of the Kingdom But being clear and innocent in the sight of God and Men from all such wicked Principles Attempts and Practices and never chargeable in the least therewith since we were a People what great Injustice both in the sight of God Angels and Men is it for any that are appointed Ministers of Justice and Right to make the said Oath a meer Trap and a Snare to run us out of our Liberties Properties and Estates on this occasion If King James was accounted a mercifull Prince not willing the innocent should share of the Severity due to the guilty in signifying that his intent in publishing this Oath was to make a separation between Catholicks of a peaceable Disposition and in all other things good Subjects as hath been reported and such Catholicks as maintained the Rebellious Principles of the Powder Trators according as he himself signifiâ—d How much more ought there to be a distinction made between the peaceable Protestants and such seditious and evil Principled Papists for whom the Oath and Penalty of Praemunire was first intended so as not to run them upon such Protestants who are both of a peaceable Disposition and Conversation Their dissenting from the Persecutors in point of Worship being purely conscientious and tender towards the Lord Jesus Christ and with respect to a real Reformation from Popery both as to the Root Branches and Reliques thereof which is clearly our case If King James was not willing that pâ—aceable Papists should be run to a Praemunire Why should peaceable Protestants be more severely dealt withal or run to a Praemunire for their Conscientiously scrupling only to Swear Allegiance * * King James's Apology for the Oath of Fideâ—iâ—y fâ—l I. Quod non tam eo fâ—ebat c. i.e. which was done or made not so much that Subjects of better note might be distinguished from Rebells a perduellibus which deny just obedience to the King but especially that I might discern or sever secernerem them who addicted to the Opinions of Popery yet have not abjured fidelity from such who carryed awaâ— with the Whimsie or Phanaticism vertigine of the same zeal with the Gun-powder Traytors would not be held within the Limits of natural Obediencâ— and believed that all Pâ—ots and Treasonable Crimes were excused by the only disparity of Religion And what proportion or equality can there be between our supposed Offence and the Penalty There 's no more reason to suspect that our refusing to swear allegiance is out of disaffection to the King than that our refusing to swear in our own concerns to preserve our just Rights is out of disaffection to our selves The King loseth nothing by our not Swearing Allegiance to him whilst we perform it but we sometimes suffer loss and detriment by not swearing in our private conâ—erns Therefore our scrupling an Oath and refusing to Swear Allegiance is purely matter of Conscience and not from any Principles of Disloyalty to the King no more than it is from any disrespect to our selves or our own Interests 'T is not unknown but generally believed that Jesuits and Popes Agents in these days can equivocally take the said ††The History of the Church of Great Brittain by G G. on that year 1605. p 272. Upon the making this Act the Pope dispatched two Breves into England prohibiting all Catholicks to take this Oath so destruâ—tive to their own Souls and the See of Rome exhorting them to suffer Persecution and manfully to endure Martyrdom Notwithstanding all which this Oath being tendred was generally taken by Catholicks without any scruple and particularly Gen. Black-well Arch-Priest of the English being apprehended and cast into Prison by taking this Oath wrought his own enlargement This Oath was ministred immediately after the putting forth of a Proclamation which commanded all Seminaries and Jesuits to depart the Land â—bid King James wrote an Apology for the Oath of Allegiance together with a Premonition to all Monarchs Kings Free Princes and States
against them the said George Whitehead and Thomas Burr are Ordered to be DISCHARGED being commited by Order of the last Sessions to remain in Prison untill this Sessions Observe That although we must needs grant that after the Sense of the Prisoners case and suffering had impression upon the Mayor * i.e. H.C. whose Mayralty was out before the Prisoners were releas'd and Justices of the said City the greatest part of them appeared to be inclined and desirous that they should be discharged before Sessions if they could have understood how it might have been regularly done their Eye being to the Recorder's advice in the case but some of them did as good as promise they should be discharged at Sessions Howbeit in order to the more certain obtaining thereof the Christian Care and great Industry of some Friends both at London and Norwich on the said Prisoners behalf is not to be forgotten and particularly that of our dear Friend William Mead in his industrious Endeavours and hard Journey to Norwich to visit the said Prisoners and to Solicit for them and see their Discharge effected such Labours of Love and Christian Charity God is not unmindful of And blessed are the true Followers of Christ that continue in the true Christian Spirit and unfeigned Love one to another unto the end for herein is a true Sympathizing with and fellow-feeling of one another in all Afflictions and Sufferings for the Testimony of Jesus Christ and of a good Conscience towards God The Religions Assemblies of the People called Quakers Vindicated First From the Charge of their being in Disturbance of the publick Peace Secondly From the Charge of being Seditious Conventicles mentioned in the Act of 22 Car. 2. Thirdly From the Charge of being under Colour of Pretence of an Exercise of Religious Worship in other manner thâ—n is allowed by the Liturgy or Practice of the Church of England 1. TO the first Objection we may ask our Adversaries What matter of Record * 5 R. 2. c. 7. 15 R. 2. c. 2. they can justly make against us the said People of due Conviction either from any notorious evidence of Fact or Testimony of credible Persons or Confession of our own as the Law provides of any formidable Posture that we meet in as that of Vi et armis or any menacing Words or Threats made by us or of any Contrivance of Insurrection which in the Eye of Law and Reason might be deemed or constâ—ued to be in terrorem Populi or in disturbance of the publick Peace or of the nature of a Râ—ot If such should not the matter and Circumstances of the Fact be specified upon such Record as the Law enjoynâ— But we utterly deny that we ever meet in any such formidable Posture as is of the nature or tendance of what the Law deems in terrorem Populi We meet peaceably to wait upon and really to worship and serve the Almighty God as our bounden Duty according to his Grace Light and Understanding which he hath given unto us by his Spirit In the second Year of Henry the 5th Chap. 8. It is provided that if any Riot Assembly or Rout of People against the Law be made in any part of the Realm H. 5. c. 8. then the Justices of the Peace three or two of them at the least and the Sheriff or under-Sheriff of the County where such Riot Assembly or Rout shall be made hereafter should come with the Powers of the said County if need were to arrest them and them should arrest and the same Justices Sheriff or under-Sheriff to have Power to Record that which they have found so done in their Presence against the Law And that by Record of the same Justices Sheriff or under-Sheriff such Trespessors or Offenders should be convicted in manner and form as is contained in the Statute of Forcibly Entry c. 5 R. 2.7 1 R. 2.2 And in the same Statute it is provided That like Ordinances and Pains should hold place and take effect in Cities Burroughs and other Places and Towns Infranchized which have Justices of the Peace within them Now let our Adversaries and Persecutors Answer us Where could any of them ever justly make any such legal and due Conviction upon Record against us for any such Riotous Meeting or unlawful Assembly on our parts as hath been really in it self of such a Nature and Tendance aâ— aforesaid in Disturbance of the publick Peace We positively deny that our Assemblies are of any such Nature however mis-represented by our Adversaries II. Objection If it be alledged That our Meetings or Assemblies are contrary to Law and therefore in Disturbance of the publick Peace Query We Question what Law or Statute they are contrary unto Obj. If it be answered They are coutrary to an Act which is both Mandatory and Paenal made in the two and twentieth Year of King Charles the second Entituled An Act to prevent and suppress Seditious Conventicles We Answer 1 st That our Assemblies are no such as Seditious Conventicles i.e. for Sedition Strife or Rebellion against the Government 2dly 'T is a meer begging the Question to term our Assemblies Seditious no such thing has ever been proved against them as Sedition that is * Sedition explained a stirring up to Rebellion or Discord a Raising a Faction or Mutiny as Phillipps in his New World of Words explains it But our Assemblies are for no such Design or End nor could ever any overt Act of that kind or tendance be proved or justly chaâ—ged against us in relation to our Meetings or otherwise Therefore they are no Seditions Conventicles or Assemblies 3dly Our Assemblies are made up of no such Persons or People as have committed any such dangerous Practices against the Government as meâ—tioned in the Preamble of the said Act 22 Car. 2. though rude Informers and Disturbers have come Riotously and with Violence against us into our Meetings Neither are we any such seditious Sectaries or disloyal Persons who under pretence of tender Consciences have or may at their Meetings contrive Insurrections as also the Preamble of the said Act is specified We use no pretence of tender Conscience for any such wicked End or Design The All-seeing and Heart-searching God knows our Innocence and Clearness herein as also the Nation 's long Experience can witness for us And if Titles and Preambles of Laws be the Keys of Laws and do evince or shew the Nature and respective Intentions thereof then this said Act against Seditious Conventicles where under pretence of tender Consciences Insurrections have been or may be Contrived doth not extend to us We pretend nothing but what we really intend viz. The Spiritual Worship and real Service of Almighty God who searches our Hearts and whom we sincerely Reverence and Fear III. Obj. But if it be objected That the matter of Fact incurring the Fines and Penalties of the said Act against Conventicles is our Meeting under Colour or Pretence of an