first Ecxeption observe First That the Form of Mittimusses or Warrants of Commitment of Persons to the common Goal ought to be in his Majesties Name or in the Kings Name or on the behalf of our Lord the King c. Dalt Just pac fol. 348 349 350 351. As Dalton shews formal Presidents * His Presidents of Mittimusses only such Warrants as are for the Commitment of Rogues and Whores and idle Persons c. to the House of Correction are sometimes made in the Justice's own Name only See Daltons Presidents as to the form of Warrants of Commitment fol. 348 349 350 351. printed in the Year 1622. Reason for Exception 2d 29 Car. 2.1677 Secondly That in the Act for the better Observation of the Lords Day commonly called Sunday there is this provision made Claus ult Provided also that no Person or Persons upon the Lords Day shall serve or execute or cause to be served or executed any Writ Process Warrant Order Judgment or Decree except in cases of Treason Fellony or breach of the Peace but that the Service of such a Writ Process Warrant Order Judgment or Decree shall be void to all Intents and Purposes whatsoever And the Person or Persons so serving or executing the same shall be as liable to the Suit of the party grieved and to answer Damages to him for so doing thereof as if he or they had done the same without †Thus the Sheriff did by the Prisoners any Writ Process Warrant Order Judgment or Decree at all Observe The Case of the said Prisoners in relation to the Meeting aforesaid where they were apprehended was neither a case of Treason Fellony nor breach of the Peace they being peaceably assembled and in a peaceable habit and posture and for no Evil intent whatsoever Therefore the whole process against them on the said 21st day of March 1679. being the Lords Day both by Sheriff and Recorder were against the Law First In apprehending and Imprisoning them without Mittimus or Examination And Secondly In the Recorder's making a Warrant of Commitment and sending them to Goal on the same Day when neither Treason Fellony nor breach of the Peace were proved or justly chargeable against them Observe These foregoing Exceptions against the said Imprisonment and Warrant of Commitment were not read in Court nor the following Notes relating to matter of Fact though both had in readiness because the said Warrant of Commitment was not insisted on by the Recorder but let fall when his Warrant for detention was detected and made invallid in Court And here it may not be amiss to add some Notes out of Dalton and others concerning the Breach of the Peace and Assemblies what are unlawful and what lawful Peace in effect saith M. Fitz is the Amity Confidence and Quiet that is between men And he that breaketh this Amity breaketh the Peace Dalt fol. 7. Peace in the common acceptation Yet Peace in our Law most commonly is taken for an abstinence from Actual and Injurious force and offer of Violence so is rather a restraining of hands than an uniting of Minds And for the Maintenance of this Peace chiefly were the Justices of Peace first made Breach of the Peace what The breach of this Peace seemeth to be any injurious Force or Violence moved against the Person of another his Goods Lands or other Possessions whether it be by threatning Words or by furious Gesture or force of Body or any other force used in terrorem Populi Of Riots Routs unlawful Assemblies When three Persons or more shall come or assemble themselves together to the intent to do any unlawful Act with Force or Violence against the Person of another his Possessions or Goods Dalt fol. 200. Br. Riot 5. Crom. 68. P.R. 25. as to Kill Beat or otherwise to hurt or to Imprison a man to pull down a House Wall Pale Hedge or Ditch wrongfully to cut or take away Corn Grass Wood or other Goods wrongfully or to do any other unlawful Act with Force or Violence against the Peace or to the manifest terror of the People 1 Ma. 12. If they only meet to such a purpose or intent although they shall after depart of their own accord without doing any thing that this is an unlawful Assembly Now in Riots Routs or unlawful Assemblies these four Circumstances are to be considered 1. The Number of Persons assembled 2. The Intent or Purpose of their Meeting 3. The Lawfulness or Vnlawfulness of the Act. 4. The Manner or Circumstance of doing it See the Statute of 1 Ma. 12. 1 Eliz. 16. Assemblies Lawful Assemblies lawful Dalt fol. ibid. 201. But an Assembly of an Hundred Persons or more yea though they be in Armour yet if it be not in terrorem Populi and were assembled without any intent to break the Peace it is not prohibited by any of these Statutes nor unlawful Crom. 62. P.R. 25. For the intent it seemeth it can be no Riot c. except there be an intent precedent to do some unlawful Act and with violence and force Dalt fol. 202. Also where there be three or more gathered together either to execute the Justice of the Law or for the exercise of Valour and tryal of Activity or for the increase of Amity or Neighbourly Friendship and not being met with an intent to break or disturb the Peace or to offer Violence or Hurt to the Person of any Such Assemblies be not prohibited by these Statutes NOR VNLAWFVL Observe But the Meetings of the People called Quakers are for the increase of Amity and Neighbourly Friendship and not with any Intent to break or disturb the Peace or to offer Violence or Hurt to the Person of any Therefore the Assemblies of the said People called Quakers are not unlawful nor against the Peace Note That the foregoing Quotations out of M. Dalton were taken out of an old Impression from which the newer Impressions differ as to the Folioes and so may not be so readily found in the new ones though they be in them all Here follows a Copy of the Discharge of the aforesaid Prisoners Norwich AT the the General Sessions of the Peace holden for the City of Norwich and County of the same before Robert Freeman Esquire Mayor of the City of Norwich John Norriss Esquire Recorder of the said City John Mingey squire Steward of the said City and other his Majesties Justices of Peace of the said City the 12th of July in the two and thirtieth Year of the Reign of our Soveraign Lord King Charles the second c Annoque Dom. 1680. Proclamation being there Publickly made That if any Person would come into the Court and give any Information or Evidence or prefer any Bill of Indictment against George Whitehead and Thomas Burr Prisoners at the Barr and they should be heard And because no Person came into the Court to prefer any Indictment or to give in any Information
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
unto you as Justices of the Peace according to the Statute made in the 4th Year of K. Henry the 7th Cap. 12. which is worth your while to read over and seriously to consider the tenor and purport thereof Your Friends and Prisoners G. W T.B. From your City-Goal the 19th of the 4 Mon. 1680. For the Mayor and Justices of the City of Norwich Friends you are intreated to peruse the following Narration THe great pretence for this our strict detention in your Goal being the late order from Sessions we think our selves obliged for your sakes as well as our own to re-mind you as hoping you will give the Oppressed leave to offer their Complaints That we esteem our selves injured in that we were not suffered to be called into Court the last Day of your Quarter-Sessions for an opportunity to have made our Exception which we conceive we had good ground for both in Law and good Conscience especially since we had Promise of such an opportunity and that if it appeared our Commitment were contrary to Law we should be discharged This we understand was made to one of our Friends who upon encouragement by some of the Justices moved for our Liberty in Court which not being granted then that we might be called into Court but being prevented of both we are detained to our and our Families great prejudice in divers respects our present restraint being also a depriving us of our Rights in the Creation and to the impairing of our Healths The late Order from Sessions for this our restraint without Bail or Mainprise was of Francis Bâ—con's ordering and we know no other Law than that to detain us so severely untill next Sessions and no doubt you had Power to Reverse it before the Termination of the last when the Illegality thereof had been made appear which we endeavoured an opportunity for as well as an Error in process may the same Term be reformed in the same Court Wing Body of the Commonâ— Law p. 88. But that Sessions is over the opportunity is slipt whose Omission was that Not ours we sought earnestly requested for it in real Love and Good Will as charitably thinking to find so much of Humanity Tenderness equal Law and Right among you towards us as not thus to delay us in Prison upon the said Order which we are really perswaded will not redound to the Honour of your City or Court considering our Innocency and the Circumstances of the Person which was the cause of it And we cannot reasonaby suppose that such an order should bind your Consciences from answering the Law of Christ To do to others as you would be done by and the Law of our Nation Not to deny defer or delay Justice or Right especially to any Free-born English man Mag. Charta cap. 29. J. Cook Inst 4 part fol. 182. Illegal or unjust Imprisonment more especially where prolong'd being accounted odious in the Eye of the Law and that you may more directly and clearly perceive that to detain us in persuance of Francis Bacon's Procedure and Order against us will not redound to your Reputation and Honour either as Civil Magistrates or Christians Pray consider how irregularly and arbitrarily he has acted towards us in his whole Procedure 1 st In his sending the Sheriff to apprehend and imprison us for being at the Meeting the 21st of March so called 1679. as he confest in Sessions he did as ye may remember by which means we were turned into the Goal by the Sheriff like Cattle into Pinfold and their detained for some Hours without Examination or Mittimus other than Francis Bacon's verbal Commission How arbitrary and Illegal was this Ye that are Wise men Judge what absolute Monarch could have shewn more Dominion in such a Case Consider the Consequence of such proceedings We hope your Design in chusing Recorders is for a Just and Legal end to assist you as the King's Ministers of equal Law and Justice and not to be as Kings and Emperors over your City nor that any one should assume such Prerogative or Preheminence so contrary to Law and the King's Interest The King hath a Prerogative in all things that are not injurious to the Subject Wing p. 2. but the late Recorder did assume a Prerogative or Dominion injurious in this his Proceedings Also 2 dly In his inflicting a two fold punishment for one supposed Offence i. c. Fining and Imprisoning for being at a Meeting contrary to that very Act against Conventicles 22 Car. 2. which was not made to commit the Persons to Goal but only to fine them alâ—eâ—t our Meetings are no otherwise designed by us than for God's Worship and Service When he first eâ—amined and committed us he told â—s thus viz. If you will neither pay your Fines nor take the Oath of Aâ—…gâ—ance I must commit you to Prison you may chuse whether you â—ill pay your Fines take the Oath or go to Prison To excuse these before mentioned proceedings against us being all on the 2â—st of March 1679. which was the Lord's day when we excepted against them as contrary to a late Act of Parliament for the better observatâ—on of the Lord's day 29 Car. 2. he alledged That our Meeting was against the Peace And what fellows Therefore he might first send the Sheriff to apprehend and imprison us without Mittimus and after that Fine us and tender us the Oath the same Day and if we would neither pay our Fines nor take the Oath then commit us to Prison Note That the said Act for the better observation of the Lord's day prohibits the serving or executing any Writ Process Warrant Order Judgment or Decree excepting in Cases of Treason Fellony or breach of the Peace If in these or any of these Cases the requiring Persons to take the said Oath and their taking of it will serve the turn to excuse them of such Crimes than that Oath may be a Cure for all Diseases or Enormities against Law of what different species or kinds soever The Justices need but require Treasonable Fellonious fighting and quarrelsom Persons to take the Oath of Allegiance and their taking of it shall quit them of all Pains and Penalties But we hope you are so ratiâ—nal as to understand that legally to require the said Oath is a distinct Case or Process from the cases of Treason Fellony or breach of the Peace and that there is no more reason to require the said Oath in any one of these Cases then in all of them 3 thly In his laying our Fines upon other persons and imprisoning us for being at the said Meeting and giving out Warrants to break open their Doors and distrain their Goods upon a false pretence of our Poverty after we had plainly signified the contrary to him both as to the competency of our Estates and known Habitations so as he could have no reason to judge or think us unable But besides the Illegality hereof pray what Justice or
the Minister Petty-Constable and Church-Wardens or any two of them shall complain to any Justice of Peace near where the Party dwellâ— and the Justice shall find Cause of Suspition then he may tender and proceed as above But all this I conceive with clearness to be meant and intended Popish Recusants But admitting it otherwise I conceive as this Fact is now put the Proceedings are not warrantable by the above-said Laws nor any other for here is no such Presentment Conviction or Indictment as the Law requireâ— to warrant either the first or second tender of the Oath and thereâ—ore I conceive the Parties grieved may be relieved c. Thus far truly transscribed out of Councillor Smith's Advice under his own Hand The Premisses considered we really think it had been your Best your Clearest and Wisest way to have manifested your Dissent as we gave caution at first from Francis Bacons's precipitant irregular dealing with us about the Oath and his illegal Commitment from Sessions which is entred for protect of Authority with the Title pro Curiam and therefore our strict Confinement thereby as your Act howbeit 't is not subscribed by any of you Wherefore we yet in Love and Good Will to you both for your own inward Peace and outward Reputations as well as our own Rights request our Liberty we being wronged hurt and grieved in divers respects by the said Proceedings of your late Recorder whereof we do once more make our Complaint to you for Relief according as we think our selves obliged in Conscience and directed also by Law Pray view the Statute of the 4 Hen. 7. c. 12. for 't is a good one 't is worth your reading Judge Cook cites it See his Instit 4 part fol. 170. and insists upon it as a necessary Caveat to all Justices of Peace For that by the said Statute Provision is made for any Subject that is hurt or grieved in any thing that remedy may not be delayed or deferred being directed to make complaint to the Justice or Justices and to desire Remedy and if he have no Remedy to shew his Complaint to the Justices of Assize if it be nigh the time of their coming but if it be too long afore their coming then the grieved to come to the King's Highness or his Chancellor and shew his Grief Whereupon the King shall send for the said Justice to know the Cause why his said Subjects be not eased And if he find any of them in default in these Premisses he shall do to him so offending to be put out of Commission c. And now as we can in good Conscience say we are Persons that refuse not to Swear in favour to any Principles of Disloyalty or Rebellion Thus much in relation to the Declaration of Allegiance contained in the Oath of Obedience we do comprehensively and sincerely propose and offer viz. That Fidelity and true Allegiance to the King we do bear which in good Conscience we believe is our Duty in opposition to and utter abhorrence of all those Horrid Seditious and Treasonable Practices Principles and Positions which are abjured and renounced in the said Oath This Declaration in the sight of him who searches all Hearts we do really assent to and own and through his gracious Assistance hope ever to be found in the practice of that Fidelity and Innocency towards the King whom God preserve that become true Protestant Subjects and peaceable-minded Christians desiring only to enjoy the Liberty of the Peaceable and Inoffensive Exercise of our tender Consciences towards our Lord Jesus Christ in his Worship and Service That he may direct you in Righteousness and bless and preserve you and yours is our Prayer also Your Friends and Prisoners for Conscience sake towards our Lord Jesus Christ G.W. T.B. Norwich Goal the 21st of the 4th Moneth 1680. To the Recorder and Steward of Norwich The account of the Prisoners Case more comprehensively stated Loving Friends VVE desire you would take no Exception or Offence at our late request for our Liberties for we design none towards you or any other of the Magistrates being unwilling to disobliege any Person that hath shewn Civility to us in any kind as we acknowledge you have in admitting us some discourse with you One reason of our said Request was because the other Justices lately gave consent to our enlargement If the Recorder would consent or advise thereto as the Messenger told us We still really apprehending our selves unduly proceeded with and wrongfully detained by the late Recorder's means both in regard of our own Innocency and of the Injury and Hurt we have divers wayes sustained by this our Confinement for near four Moneths past to the impairing our Healths afflicting our Families and detriment to our Concerns And not being wholly ignorant in point of Law how unwarrantable the procedure is against us from first to last being also confirmed in our weak Apprehensions therein by Persons learned in the Laws as Council hath lately given it under Hand That indeed it s an irregular proceeding throughout And that the late Commitment by which we are detained is not good but against Law And therefore its being given or pleaded as an Order of Sessions or as pro Curiam cannot rationally argue it to be an indispensible Law you know better in Law and Logick doubtless These things considered we did think our selves in Conscience obliged and concerned as English men with respect to our Birth-rights to request our enâ—argement of the Justices of this City Howbeit we charitably hope That right is intended us when you are in Statu quo i.e. at next Sessions which is the most as we can rationally suppose can be alledged for our detention in the mean time by the said Order and according to your Advice we have been and intend to be patient till your Quarter-Sessions seeing that before 't is not thought Regular to discharge us so that then we hope no further occasion will be sought to prolong us in Prison But that as prudent men you 'l better consider our Right and your own Reputions We cannot but remember how little care of due method and regularity Francis Bacon had in getting us into Prison considering how much there seems to be now for our Discharge 1 st We were apprehended put in Prison and detained for some Hours upon his verbal Order without any Examination or Mittimus be sent the Sheriff to do it 2 dly Then we were had before him and Fined on the account of the Meeting 3 dly Then because we did not deposit the Fines he committed us to Goal for the same Meeting by a Warrant only in his own and not in the King's Name 4 thly Then he laid our Fines upon others upon a false and groundless pretence of our Poverty So he awarded two Punishments for one supposed Offence i.e. Imprisonment and Fines câ—ntrary to the Act in that case 22 Car. 2. which intends not Imprisonment Then observe his contradiction
against All which Offences Crimes and treacherous Actions against the King his Government and People we are so far clear and Innocent of as that our very Soul abhors them And who can charge or justly Impeach us therewith or with any of them We can Challenge the whole World yea the worst of our Adversaries to detect or impeach us who are the People called Quakers of any of these things As 1 st Who justly can charge us or any of us with any such Correspondency either with the Pope Church or Court of Rome as there to purchase or procure any Sentences of Excommunication or Bulls against the King c. 2 dly Or that can charge or impeach us or any of us with any Treasons Conspiracies or Plots against the King his Government State Parliament or People or that can charge or impeach us or any of us with any such Hellish Design Attempt or Conspiracy as either that of the Gun-Powder-Plot or the subversion of the Government or with seeking to introduce Popery to destroy the real Protestant Religion or any part thereof professed in this or other Nation or that can justly charge us or any of us with any such pernicious destructive Popish and Antichristian Principles Positions or Practices as the Oath of Allegiance was intended and provided against As we are sure that no man can justly Detect or Impeach us in any of these how then can we either in point of Conscience Justice common Equity or Reason be run to such extream Penalties and Sufferings as to be put out of the King's protection or to forfeit our Estates and Liberties meetly because we in point of Conscience scruple or fear to Swear to the Declaration of our Allegiance whilst we sincerely perform the Duty thereof by our harmless and peaceable Conversation among men as our Neighbours are Eye Witnesses both as Christians and true Protestant Subjects which truly answers the Intent and End of the Law Our dissent in point of Conscience and Worship being out of no respect to Popery but the contrary For we really believe we are more clearly Reformed Protestants than those are from whom we dissent Where 's then the proportion or equality between our supposed Offence which is but Circumstantial at most and the Penalty There 's no parity at all between them Let the Law of Truth Justice Equity and Conscience in all moderate Magistrates and impartial Men judge in this our Case for to that we appeal and not to the Spirit of Persecution Envy Revenge and Partiality which without any due measure of things and without all Compassion seeks occasion against us to destroy us which the Righteous God and just Judge of Heaven and Earth will plead with and judge Let due measures be taken of Offences and Penalties which ought to be suitable Penalties ought not to exceed the Offences but to be secundum qualitatem quantitatem delicti nor those things to be made Offences which really are none Let Justice and Right take place and equal Law and execution of Right be followed according to the Fundamental Laws and Rights of English men and that which all the Kings Justices and Ministers who under him are appointed for that end are obliged unto both in the sight of God and men as being under a severe Obligation to minister justice and right to all his Subjects Rich and Poor without partiality Norwich Prison the 23d of the 2d Moneth 1680. Here follow some Exceptions which the said G.W. and T.B. Prisoners had in readiness in Court against the manner of their Imprisonment by the Sheriff without a Warrant on the 21st of the Moneth called March 1679. Arrest explained Dalt fol. 706. AN Arrest being the apprehending and first restraining of a man's Person depriving it of his own Will and Liberty and may be called the beginning of Imprisonment See Dalton fol. 306. Exception 1. Dalt fol. 304. of Warrants Dyer 244. 〈◊〉 Bar. 248. Lamb. 93. If any Officer do Arrest a man for the Peace or the like before that he hath a Warrant and then after doth procure a Warrant or a Warrant cometh after him to Arrest the party for the same cause yet the first Arrest was wongful and the Officer is subject to an Action of false Imprisonment See the Statute 43 Eliz. c. 6. See also Dalt fol. 307. Exception 2. From the Act made to prevent and suppress Seditious Conventicles 22 Car. 2. fol. 10 11. These passages are to be observed viz. 23 Car. 2. fol. 10 and 11. Also the Sheriffs and other Magistrates and Ministers of Justice or any of them joyntly or severally c. are to have Certificate made to them respectively under the Hand Seal of a Justice of Peace or chief Magistrate of his particular Information or Knowledge of such unlawful Meeting or Conventicle held or to be held in their respective Counties or Places and that he with such assistance as he can get together is not able to dissolve the same shall and may repair unto the Place c. and take into their Custody such and so many of the said Persons so unlawfully assembled as they shall think fit to the intent that they may be proceeded against according to this Act. fol. 11. And the respective Constables Head-Burroughs c. are to have Warrant from the Justice Justices or chief Magistrate respectively c. to take into their Custody Persons unlawfully assembled as they shall think fit to the intent that they may be proceeded against according to this Act. Whence two things are observable 1. That Persons so met as aforesaid are not to be taken into Custody by Sheriffs or other Officers without Warrant or Certificate under the Hand and Seal of a Justice of Peace or chief Magistrate 2. That where Persons are so taken into Custody 't is to the intent that they may be proceeded against according to this Act which Intends not their Commitment to Goal but to fine them upon Conviction Therefore the Prisoners if they were Offenders against this said Act yet their being taken and thrust into Goal without such Warrant or Certificate under Hand and Seal c. and after being committed and detained in Goal for not paying their Fines is besides and contrary to the provision made in this very Act. What due Process in Law is Due Process explained A Commitment by lawful Warrant is accounted in Law due Process or Proceeding in Law and by the Law of the Land as well as by Process by force of the Kings Writ Cook 2 part Institut fol. 52. Exceptions against the Warrant of Commitment dated the 21st of March Anno Dom. 1679. Exception It appears illegal for these two Reasons 1 st Because it is made not in the King's Name but in Francis Bacon's own Name 2 dly Because it was made and served on the 21st Day of March in the Year abovesaid being the Lord's Day commonly called Sunday Reason for Exception first For the
demanded our Names and Places of Abode G.W. detected their Abuse and false defaming Insinuation to the People and discovered his Name and Habitation to prevent Suspition in the People Again he demanded by what Authority they came thus to disturb our Meeting and call us in Question bidding them produce their Warrant but they refused to give Account or shew any Warrant So after some Tumultuous Bustie and Hiddious Noise that they made in the Meeting being prevented by the great Crowd from coming at us to hale us away the chief of them with-drew and in a little time after one of the Sheriff ††i.e. Tho. Seamans of the City came in calling for us and came to us the People making way for him he required us to go along with him taking G.W. fast hold by the hand and led him along out of the Meeting near about half way to the Prison with other Persons with him that were the Disturbers and Informers to guard us along to the Prison the Sheriff turned us in at the Goal Door and left us there where we were detained about two Hours and then were sent for and by the Goaler were had before Justice Bacon the then Recorder of the City who after some time called us into a Room many other Persons coming in where the Priest * * i.e. Priest Whitefoot of the Parish was also with him who at first seemed offended and began to Question with us about our Hats and afterward about Sacraments c. often interrupting and interposing between us and the Justice as one seeking occasion against us but was plainly answered and reprehended by us the Prisoners for his Incivility though the Recorder shewed no dislike of his Carriage who having his Law-Books and Bible before him first begun with us about our Names Habitations and Trades and enquired If we were in Orders or had Orders from Rome To all which we gave him a plain Account denying any such Orders and solemnly in the Presence of God declared our Abhorrance of Popery Then he Questioned us about our Preaching that day in the Meeting To which we also gave him a Plain and Christian Answer After some Discourse he read part of the Act against Conventicles 22 Car. 2. Cap. 1. and insisted upon it That we were Offenders of it and threatned that he would Fine us 20 l. a man and then demanded of us to Deposit the Money But we told him we had not Freedom to do that although we have Estateâ— Responsible that lie open to the Law where our Habitations are This we told him and did some-what insist upon it that he might not Fâ—ne others on our account And partly to prevent him from imposing the Oath of Allegiance upon us to circumvent and entrap us he being about it questioned us Whether we would take it or not We answered in General That we could take no Oath for Conscience sake and therefore desired him to take that as a Caution not to go about to ensnare us there-with since he had begun with us upon another Statute touching our Meeting He said If we would neither pay the Fines nor take the Oath he would commit us to Goal And finding none ready to deposit the Fines the Informer whispered him in the Ear as he suffered him several times to do though requested by the Prisoners to the contrary Then he enquired When we came into the City and where we lodged and where we set up our Horses To all which we gave him account whereupon one or more of the Informers after some whispering with the Recorder went from him to the Inn where our Horses stood but in the very enterim some Friends took them away unknown to us the Prisoners though some have wrongfully upbraided us in that matter as craftily designing and knowing of it So he told us He would commit us to Prison till next Sessions and there the Oath of Allegiance should be again tendred us and we should be Praemunired if we refused to take it But if we would pay our Fines he should not send us to Prison Which we not doing having told him where our Habitations and Estates were which were Responsible he concluded with these Words viz. De non aparentibus et non existentibus eadem est ratio Of things not appearing and things not in beeing there is the same Reason i.e. Our Estates that are at London and Ware appear not at Norwich therefore they are not in Rerum Natura or not in beeing Strange kind of Logick or Reason in this Case After a little space he told us That if we would give in Security to appear at 〈◊〉 Quarter-Sessions he would not send 〈◊〉 to Goal Which we not having Freedom to give we requested of him That he would but let us lodge out of Prison that Night that convenient Lodging might be made ready in Prison for us it being then some-what late in the Evening we promising God willing to appear at Prison next Morning and some others present proffering to Engage for our forth-coming then No by no means would he grant us that small Civility unless we would Engage in 40 l. Bond or Security for our appearance next Morning at Prison which Kindness of his not being worth farther Discourse we accepted not of it So he sent us that Night to the Goal where we remain satisfied in the Will of the Lord to wait upon him in Patience and Submission to his good Pleasure Many material things passed between us which cannot well be Collected in due Order others are omitted for brevitys sake G.W. T.B. Prisoners Norwich-Goal the 22d day of the 1st Moneth 1680. POSTSCRIPT Note THat among other Reflections the Recorder rendring the said Prisoners Seducers Seditious c. he told them of a Statute yet in Force that was made in Q. Elizabeth's days †35 Eliz. cap. 1. To Hang such Persons as they were Being asked by the Prisoners If he could prosecute them upon that Law or execute it upon them He answered Yes if the King should give Order to have it put in Execution he would do it he would prosecute them and have them Hang'd if they would not abjure the Realm c. or to that effect After the Substance of the Account given before was writ these following Testimonies were by some Friends delivered to the Prisoners wherein are the Names of some of the Tumultuous Disturbers and Informers before-mentioned some whereof refused to tell their own Names when asked in the said Meeting This was observed in the late Disturbance of our Meeting in Norwich the 21st day of the 1st Moneth 1680. That Paul Hartly one of the chief of them was seen to snatch off John Sharpings Hat and threw it a great way over the Peoples Heads in his Wrath. Certified by Ambrose Ansell John Sharping THe 21st day of the 1st Moneth 1680. one Christopher Nobs Clerk of Gregories Parish came into the Meeting at Norwich Pushing on
each side with his Elboes and smote Rose Gogny such a hard blow on her Breast that her Breast was sore several dayes Also Charles Alden the Vintner at the Sign of the Chairing-Gross came calling out Here 's Sons of Whores Here 's five Hundred Sons and Daughters of Whores The Church Doors stand open but they will be Hang'd before they will come there And whilst a Friend was speaking the said Alden said Pull down that Puppy-dogg why suffer you him to stand there Prating 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
which are subscribed by Credible Persons of our Neighbourhooâ—d G.W. The Premisses which we are to answer to is matter of charge contained in the Mittimus Let it be read in Court we request you R. It shall not I 'le give account These Persons were taken at an unlawful Meeting There 's also a second Mittimus which signifies my requiring them to take the Oath of Obedience and their Refusal c. G.W. The second is a Warrant to detain us without Baile or Mainprize till Sessions 'T is not the Mittimus 't is of another Date c. R. 'T is the Mittimus and you are to Answer to it whether you will take the Oath of Allegiance to the King These Persons have refused to shew their Obedience to the King c. T.B. Pray forbear to accuse us We have shewed our Obedience by our peaceable Conversations c. G.W. The second Warrant is not the Mittimus The Mittimus is that by which we were sent to Prison bearing date the 21st day of March The second Warrant bears date the 23d day of March. R. The second is the Mittimus you are to Answer to it Wee 'l put the Oath to you G.W. The second is not the Mittimus we were not sent to Prison by it We were sent to Prison the 21st of March. The second Warrant bears date the 23d of March We were in Prison near two dayes before the date of the last Warrant There needed not be a Mittimus to send us to Goal when we were sent by one already so long before I pray let our Mittimus be read in Court R. Put the Oath to them that 's in the second Mittimus c. G.W. I beg of this Court for God's sake and the King's sake to be heard fairly without thus being run upon For God's sake because he is a God of Justice and Truth And for the King's sake because the King's will towards us as Subjects is what the Law and Justice wills As his Will is the will of the Law he wills that none of his Subjects be injured or unduly prosecuted contrary to Law I appeal to the Mayor as chief Magistrate of this City and the rest of the Justices here present Whether ye ought not to see us have that Right done us as to have our Mittimus produced and read in Court that you may understand the cause of our Commitment We were not committed for refusing the Oath We intreat that the Court may hear our Mittimus that we may not have other Premisses put upon us than what 's contained therein R. It shall not be read there 's no need of that I am present that committed you G.W. I appeal to the Mayor and the rest of the Justices who are more indifferent towards us for Justice in this case viz. That we may have our Mittimus read and answer to the Premisses contained in it and not thus be run upon and diverted with that which is none of the Premisses c. Mayor You have appealed to me Truly we are Trades-men and no Lawyers We leave matters of Law to the Recorder He knows the Law and we must acquiess in his Judgment T.B. Thou understandest we ought to have our Mittimus read and be heard And thou art the chief Magistrate in this Court c. G.W. You all have a Conscience towards God and an equal and just Law therein And you are under a severe Obligation to wit your Oath to see Justice and Right done us We appeal to the Mayor and Justices here for Justice in relation to our Mittimus that it may not be thus evaded We are at this Sessions to answer to the Premisses or matter of charge therein contained you are concerned in Conscience to do us â—ight herein The Honour of this Court is also concerned not to see us precipitated noâ— run down upon other Premisses The Mittimus was given under the Hand and Seal of your Recorder his Reputation and Honour is also concern'd c. R. My Honour concern'd Wherein G.W. Thy Reputation and Honour is concerned in that thou art bound to stand by our Mittimus 't is under thy Hand and Seal Now thou goest about to evade it by imposing other Premisses upon us or to the same effect R. They sent their Mittimus to the Attorney General and sollicited him for advice to know whether they were according to Law or not And moved for a Habeas Corpus But it would not be granted G.W. We neither sent to the Attorney General nor have we yet moved for a Habeas Corpus R. The second Mittimus or Warrant is about their refusing the Oath of Allegiance as for the first I did not make it by Book ‖ This the Prisoners did not hear but others nearer G.W. 'T is not a reasonable thing to bring a Prisoner and not withal to signifie the Crimes laid against him It was contrary to the very Law of the Romans Interrupted being about to add as Festus said in the case of Paul It seem'd to me a thing unreasonable to send a Prisoner and not withal to signifie the Crimes laid against him Acts 25.16,27 which alwayes ought to be in Warrants of Commitment R. What tell you us of the Law of the Romans we have Laws of our own to act by c. or to that effect G.W. 'T is according to the Law of Reason and Nations that the Crimes and Offences should be known for which Prisoners are committed and detained in Prison else why should they suffer R. The Court must tender you the Oath G.W. Wherefore then were we committed and detained in Prison above these five Weeks If we be Offenders let 's know our Offence for which we were committed If not do not go about to ensnare us do not seek occasion against us 'T is enough to punish us if found Guilty of what charged against us in our Mittimus We entreat the Mayor and Court to do us right in this matter that our Mittimus may be read Mayor and some others Well you shall have it read G.W. Keeper Where 's our Mittimus produce it that it may be read as the Mayor and other Justice here present have engaged R. Tender them the Oath Put the Oath to them If you 'l take it that shall serve c. If not you incur a Praemunire c. A hiddious noise in the Court among some under Clerks and Officers about the Oath viz. Some under Clerks c. What say you Answer Will you take the Oath Will you Kiss the Book Clerk reads I Thomas Whitehead do truly and sincerely acknowledge profess testifie and declare in my Conscience c. Here an Interruption upon his mistake of Thomas for George G.W. The Oath is none of the Premisses contained in our Mittimus which we are to Answer to at this Sessions and to be tryed upon T.B. Our all is at stake We perceive the Recorder is determined concerning us We must have liberty to speak We are
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
Consistance could there be between his Fining others because of our Poverty and committing us to Goal because of our Non-payment thereof He imprisons us because we do not pay our Fines and layes our Fines upon others because we cannot pay them But this is not the least inconsistance in his perplexed Proceedings He demands 20 l of each of us for Preaching and because we did not deposit the Money he commits us to the common Goal upon pretence of being assembled in disturbance of the publick Peace by a Warrant made in his own and not in the King's Name and then layes our Fines upon others which was all for one and the same Meeting And these proceeding are as reconciable as if he had Fined us for Praying and committed us to Goal for Fighting whilst at Prayer But we are more Serious in our Devotion and Innocent in our Deportment blessed be the Lord our God We further intreat you to view the said Francis Bacon's proceedings against us at your Quarter-Sessions the 28th of April 1680. and seriously to consider whether he did therein proceed either legally or justly with us As First In his appearing a Party an open Adversary an Accuser a Villifier of us the Prisoners in the open Court of Sessions telling us that there is a Law to Hang such and that the Church would never be at quiet till such Fellows were Hanged as you may well remember to the same effect he also told us when he first committed us Secondly In his denying opposing the reading of our Mittimus in open Court contrary to all Reason and to the mind and declared Judgment of the Mayor and other Justices upon the Bench as you may also well remember how imperiously did he behave himself in this Thirdly In his not suffering our Certificates to be read in Court which we earnestly then and there requested as you also may remember which were from certain Officers and other credible Persons of our Neighboured to remove the Calumnious Aspersion and Suspition of our being Jesuits or Papists prejudicially insinuated against us Fourthly In his frequently and abruptly causing the Oath of Allegiance to be offered or put to us on purpose to ensnare and circumvent us before the Process or Charge of our Commitment were determined in Court notwithstanding our Mittimus signified that we were then to answer to the Premisses therein contained and also begged that for God's sake and the King's sake as you may remember with our reason thereof we might be heard in our Plea and Answer to the Premisses upon which we were committed before any other Process were entred upon against us Fifthly In his not suffering the Law to be read in Court which we earnestly begged upon which he forced and required the said Oath of us as he had determined aforehand in order to run us to a Proemunire at the same Quarter-Sessions as he threatned when we were first before him understanding that we did fear an Oath or to Swear in any case Sixthly In that when our Mittimus and his Erroneous Warrant and his first pretended tender of the Oath by himself alone were reverst by our being discharged in Court from the matters contained in them he would not suffer us to be actually freed of our Imprisonment but in persuance of his premeditated Design forced a tender of the Oath de novo as his Words were and an order immediately to be entred for our Commitment to Goal without Bail or Mainprize untill the next Quarter-Sessions without allowing us any further time for Consideration or Answer as we desired Seventhly His precipitancy and rashness towards us was such therein that the rest of the Justices doubtless could not take so much time and deliberation as to consider of these his Proceedings before he concluded the said order of Commitment wherein they might very well and but justly have given him a Check put a stop to his swift and furious Motion for a more general and serious consideration of the Case among them and not have suffered him to make such a suddain Conclusion against us as pro Curiam or by their Authority for Justices ought to see with their own Eyes and be sure their Judgment is Just before they give their Judgment or assent in any Judicial case seeing they had such fair Warning also in our publickly desiring to know If you were all of a mind or agreed against us as to that severe Commitment charitably hoping as we do still that you were not but no Answer could we have in that Case The Recorder was in such haste for that Conclusion against us and the Courts Adjournment and to have the Goaler to take away the Prisoners He would have you to understand he wanted his Dinner upbraiding us the Prisoners with an idle Story of our being at a Feast the Night before Eighthly Besides his de novo tender of the Oath to us the Prisoners in Sessions appeared neither Legal nor Formal according to the form of Statute 3 Jac. Cap. 4. which intends Popish Recusants as appears plainly by the Title and Preamble thereof which we the said Prisoners were not nor are we Papists at all but it was also against the Form and Course of procedure both of the Statute 3 Jac. 4. allowed even to Papish Recusants Convict and that also of the 7 Jac. Cap. 6. for a first tender of the Oath to be made out of Court or Quarter-Sessions and a Commitment of the party refusing and the second tender in the open Assize or Quarter-Sessions in such manner and on such precedent Causes as the Law directs and wherein we were unconcerned And moreover neither of these Statutes of King James do warrant any such order for Commitment of Persons to Goal from one Quarter-Sessions to another without Bail or Mainprize as is the late order of our Commitment Pray see what Council saith in relation thereunto Viz. 1 st I conceive the third Warrant is not good in the Commitment For as 't is true that Act says The Offenders shall incur a Praemunire yet it doth not in the least give them any Power to commit the Person and therefore for that it s without Bailor Mainprize and to a certain time and not leaving it to the Law I conceive it s against Law and will be remedied c. 2 dly He further saith By the Statute of 3 Jac 4. The party that is to take the Oath is to be one that is Convicted or Indicted for Recusancy or not taking the Sacrament twice in the Year past and the Parties to tender it are either the Bishop or two Justices of the Peace whereof one of the Quorum and upon refusal they may commit without Bail or Mainprize untill next Assize or Sessions where it may be again tendered By the Statute 7 Jac. 6. any one Justice may tender the Oath to one that is presented Indicted or Convicted for not coming to Church or receiving the Sacrament according to Law or if
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
viz. Imprisonment and Fines for one pretended Offence Let the following Ciâ—ation being a Copy of one of his Warrants for leavying the Fines be compared with his Warrant of Commitment before cited both which relates to the said Meeting heâ—d the 21st day of March so called 1679. City and County of Norwich FOrasmuch as Thomas Haward of the Parish of St Peters Promountergate in Norwich aforesaid Worstead Weaver doth stand lawfully Convicted before me Francis Bacon Esquire Justice of Peace for the City and County aforesaid for being present with divers other Persons at a Conventicle holden upon Sunday the One Twentieth day of March last past in the House of John Defrance in the Parish of St Gregory in Norwich aforesaid School-Masâ—er under colour or pretence of the Exercise of Religion in other manner than according to the Lyturgy and Practice of the Church of England and against the Statute made in the Two and Twentieth Year of our present King's Reign to prevent and suppress Seditious Conventâ—cles Fr. Bacon for which he the said Thomas Haward is fined by me the said Francis Bacon for his second Offence ten Shillings according to the said Statute And whereas George Whitehead of Hounditch in London Grocer and Thomas Burr of Ware in Hartfordshire Manlster do also stand severally Convicted before me the said Francis Bacon for taking upon themselves severally to teach in the said Conventicle whereby they have severally forfeited by the said Act for this their first Offence Twenty Pounds a piece Now for that I the said Fran is Bacon â—o in my Judgment think the said George Wâ—…tehead and Thoma Burr unable to pay their resâ—ective Forfâ—itures These are therefore to Authorize you and in the King's Maâ—…sties Name to require you forthwith to go to the dwelling House of the said Thomas Haward and demand the sum of ten Shillings for his said second Offence and ten Pounds being the Moyety of twenty Founds of the said George Whiteheads Forfeiture and charged upon him by reason of the said George Whiteheads Poverty And if the said Thomas Haward shall refuse to paâ— the saeme or deny upon your demand to open his Doors for the Execution of this Warrant then to break them open and enter into his House and leavy the said sum of ten Pounds and ten Shâ—…ings by distress and sale of the Goods and Chattels of the said Thomas Haward and the Moneys so leavied deliver and â—ay unto me the said Francis Bacon to be by me distributed according to the said Statute and for your so doing this shall be your Warrant and therefore in the diligent Execution hereof fasl not at your Peril Given under my Hand and Seal the first day of April Anno Dom. 1680. To the Constables of the Ward of North Coniesford in Norwich aforesaid and to either of them and to his and their Assistant and Assistants Exceptions against the late Recorder's requiring the Oath of Allegiance of George Whitehead and Thomas Burr Prisoners both when first committed and in Court and his late Commitment from Sessions 1 st AS to the late Recorder's pretended tender of the Oath of Allegiance to the said Prisoners before their first Commitment the Law did not give him Power thereunto they not being under those precedent Causes and Circumstances prescribed in the Statute in that case 7 Jac. c. 6. Dalt fol. 94 95 that is as standing Indicted or Convicted or complained of by the respective Officers of their Neâ—ghbourhood as therein mentioned nor was he any such Jâ—stice oâ— Peace near a joynâ—ng to the places of the said Prisoners dwellings as the Law also directethâ— but on the contrary the Pâ—isoners Nâ—ighbours both certain Officers and other Credible Persons have gâ—ven Certificates and Testimony on their behalf that they have never been accounted nor reputed Jesuits nor Papists nor Popishly affected 2 dly His first requiring the Oath of the said Prisoners being made void and reverst by the late Order of Sessions discharging the Prisoners of the matters contained in their Mittimus and Warrant is thereby made no tender being one of those matters contained in the said Warrant whereof the Prisoners are discharged 3 dly His putting the said Oath De Novo that is for a first tender in the Qâ—arter-Session to the said Prisoners appears Contra sormam Statuti agaâ—nst the form of the Statute and order of Law prescribed and limitted both in the 3 Jac. 4. even in Relation to Popish Recusants and 7 Jac. 6. more general whereby the first tender of the said Oath is not directed to be made in one Quarter-Sessions and the second in another but contrariwise the fiâ—st tender out of Sessions and a Commitment of the Persons refusing to Goal until the next Assize or general Quarter-Sessions where the said Oath shall be again required which again relates to the second tender in open Assize or Sessions after the first out of Sessions see 3 Jac. 4. to which agrees the Statute of the 7 Jac. 6. in relation to the first tender being made out of Sessions Dalt fol. 77. and fol. 209. and the second in Sessions in these Words viz Where the said Oath shall be again in the said open Sessions required c. Which again likewise follows the Commitment of the party for refusing on the first tender made out of Sessions as the Law directs 4 thly Also his ordering the said Prisoners to be committed from Sessions to the common Goal there to remain till next Quarter-Sessions for not accepting his De Novo tender in Sessions appears Illegal and contrary to the form of the Statutes before-mentioned and course of proceeding thereby prescribed and limitted See the Judgment of Council ‖ i.e. M. Smith in that case also concerning the third Warrant which is that from Sessions in these Words viz. I conceive the third Warrant is not good in the Commitment for as 't is true that Act says The Offender shall incur a Praemunire yet it doth not in the least give them any Power to commit the Person and therefore and for that it s without Bail or Mainprize and to a certain time and not leaving it to the Law I conceive it is against Law c. I believe the Law-makers intended only Romish Recusants 5 thly The Statute of the 3 Jac. 4. Entituled An Act for the discovering and repressing of Popish Recusants Upon which that of the 7 Jac. 6. is grounded as also the penalty of Praemunire mentioned in the 16 of R. 2. appears to be made and only intended against Popish Recusants and such Agents as were Enemies to the King his Crown and Regalty which the said Prisoners are not 1. From the Preamble concerning the Powder-Plot 2. From the Nature of the Oath and those Treasonable Practices and Principles thereby renounced and abjured 3. From the Statute of Praemunire in the 16 R. 2. †Entituled Praemunire for purchasing Bulls from Rome and the Penalty thereof being made against those Agents
that did procure Sentences of Excommunication and Bulls Instruments c. from Rome against the King which touched the King his Crown and Regalty 16. R. 2. c. 5. Of Praemunire Judge Cook Instit 3 part fol. 126. The greatness of these Punishments do shew the Greatness of the Offence It is to be observed that the Statute of 16 R. 2. is strictly Pen'd against Offenders c. Observe The Prisoners have to plead that they are no such Offenders nor justly chargeable with any such Offence against the King his Crown or Regalty as is mentioned in the 16 R. 2. c. 5. The Exceptions against the De Novo tender of the Oath argued IT being a Maxim in Law that the Penalty ought not to exceed the Offence but to be secundum Qualitatem Quantitatem delicti Therefore to punish Innocent Persons with the penalty of Praemunire for not taking the Oath only upon a Principle of Conscience because they are afraid to Swear in any case and not upon any Principles of Disloyalty equally with them whom the Law concludes Disloyal and Treasonable in their Principles at least if not actually such and upon no other account can reasonably be supposed to refuse the said Oath of Allegiance This appears very unjust and neither secundum qualitatem nor secundum quantitatem delecti supposed The Case further argued and illustrated 'T is evident that the Penalty of Praemunire was intended by the Law for Persons guilty either of Treasonable and Seditious Practices or Principles against the King and Government tending to the Subversion thereof as appears by the intent of the Law 'T is presum'd they are at least such Inhaerent Traytors by disloyal and perfidious Principles as that they are prepared and ready to be actually such as appears by the Preamble of the 3 Jac. 4. 1 st By the Statute of 16 R. 2. cap. 5. Praemunire for procuring Bulls sentences of Excommunication c. from Rome against the King his Crown and Regalty 2 dly By the Statute of 5 Eliz. cap. 1. Praemunire for holding with extolling setting forth maintaining or defending the Authority Jurisdiction or Power of the Bishop or See of Rome by Writing Cyphering Printing Preaching Deed or Act Advisedly and Wittingly c. 3 dly By the Statute of 13 Car. 2. cap. 1. Entituled For his Majesties Person and Government against Treasonable and Seditious Practices Wherein Praemunire is for Maliciously and Advisedly by Writing Printing Preaching or other Speaking c. declare or affirm that the Parliament begun at Westminster November 3. Anno 1640. is not yet dissolved or endeavouring a change of Government c. All which are deemed by Law matters of Fact Seditious and Treasonable to which the Penalty of Praemunire is sutably prepared 4 thly By the Title and Preamble of the Statute of the 3d of King James chap. 4. being an Act for the discovering and repressing of Popish Recusants It s evident that 1 st Praemunire was intended by the Law-makers for such Persons as were Popish Recusants and infected by the Wicked and Devilish Counsel of Jesuits Seminaries c. 2 dly And so far perverted in the point of their Loyalties and due Allegiance as that they were ready to entertain and execute any Treasonable Practices instancing that Barbarous and Horrible attempt of the Gun-Powder Plot. 3 dly And for divers Persons Popishly affected who to cover and hide their false Hearts and to attend the opportunity to execute their Mischievous Designs repair sometimes to Church to escape the Penalty of the Laws c. Which parts of the Preamble duly considered two things are Naturally deducible to render the Penalty of Praemunire sutable to the Offence as all Penalties of Laws ought to be 1 st That the Law looks upon them to be Inherently Traytors or Traytors in Principle and thereby prepared for Treasonable Practices who justly demerit that Penalty 2 dly That the Law-makers could intend or suppose the Penalty justly due to no other Persons than such as would refuse the Oath of Obedience with respect to such Principles of Disloyalty tending to Rebellion and Treason as were secretly reserved in their false Hearts according to the Preamble of the said Act 3 Jac. cap. 4. That these Words in the 3d of K. James cap. 4. viz. Or any other Person whatsoever c. shall refuse to take the said Oath being tendred unto him or her by the Justices of Assize c. shall incur the danger and penalty of Praemunire cannot rationally be so largely construed and urged as for their making a first tender thereof in the Court of Sessions to any Person whatsoever standing accidentally in Court without any precedent and just cause of notorious Evidence against them or Conviction of being Popish-Recusants c. for these Reasons 1 st Because some Persons in Court who are real Protestants may Conscientiously scruple to Swear or take any Oath upon the same Principle of Christ's Doctrine Matth. 5. and James 5. upon which many Primitive Christians and Martyrs even Protestant Martyrs refused to take an Oath in any case and not from any Principles of Disloyalty and Rebellion which the Oath of Allegiance was provided against 2 dly Because the Words as construed vary from the Order and Course of proceeding prescribed and allowed even unto Popish Recusants i.e. for a first tender to be made out of Court and a second in Court before a Praemunire for refusal Therefore it must intend Any other Person whatsoever being a Popish Recusant convict It would be very unequal and unreasonable to Praemunire a Protestant for once Refusal in Court upon a surprisal by a suddain tender and allow a Popish Recusant so much order of proceeding and deliberation as a first Tender out of Sessions and a second in Sessions and a refusal upon each before a Praemunire howbeit Women covert are exempted from Praemunire ☞ 3 dly The Words Or any other Person whatsoever are left out in the 7 Jac. cap. 6. in the recital of the same Clause relating to the tender of the Oath in the Assize or general Quarter-Sessions there must needs be some cause for the leaving out these Words in the same clause And the latter Act being in the same case more gentle in this Point supposes the former too severe and therefore the Words are left out For if the first had been without Fault what need of a second And its apparent that in the 7 Jac. c. 6. the first tender of the Oath by the Justices is made out of Sessions and the second in Sessions and a Refusal upon both before the Judgment of Praemunire Observation The Commission of the Peace stood over-burthen'd with divers Statutes Some whereof saith Chief Justice Cook Instit 4. part fol. 171. are stust with many vain and unnecessary Repetitions and many other Corruptions crept into it by mistaking of Clerks c. Divers Statutes have been repealed and divers have expired c. He hereupon cautions thus It is a good
Rule therefore for all Judges and Justices whatsoever that have Jurisdiction by any Statute which at the first was Temporary or for a time to consider well before they give Judgment Whether that Statute hath been continued or made perpetual whether it be not repealed or altered by any latter Statute Erudimini qui judicatis terram See 2 part Instit 22 H. 8. c. 4. The Exposition upon the Statute of 22 H. 8. c. 5. 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 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
of Christendom effectually confuâ—ing the Popes Breves This Apology I have seen So that it was intended against the Papists is known by all Christendom Suarez Eudaemon Becanus Coftetus Peleterius and other Papiâ—s wrote against it R.R. Oath and thereby obscure their destructive Designs and escape the Penalty of the Law upon the confidence they have in the Popes pardons for all their equivocal reserves in taking the Oath going to Church c. And why may not all this be as easily dispensed withal by such Agent of Rome to carry on their evil Designs as their repairing to Church in King James's days as is signifi'd to cover their false hearts and with the more safety to attend the opportunity to execute their mischievous Designs And therefore whilst such can escape by Equivocation and the Innocent suffer for Conscientiously scrupling to Swear not only in this but all other cases that which was at first intended for the discovering and suppressing such Persons as were infected with destructive and treasonable Principles and Practices is now contrariwise by subtilty and envy so far perverted as to be made a Subterfuge for persons obnoxtious and treasonable in their Designs or disguised and wicked Agents against the Government as they are counted of the worst sort and a sâ—are and gin to catch and destroy the innocent and peaceable Subjects with both as to their just Liberties Properties and Livelihoods in this World Thus the said Oath is made use of against the Interest of both King and People they that thus use the Oath use it against the Government and thus it never attained its end Thus Justice and true Judgment is turned backward and the Justice intended by the Law perverted and the real end thereof made void and that under pretence of Justice where subtilty envy persecution and partiality blinds the mind Anno Septimo Jacobi cap. 6. The Preamble Whereas by a Statute made the third year of your Majesties reign Entituled An Act for the better discovering and repressing of Popish Recusants The form of an Oath to be ministred and given to certain Persons in the same Act mentioned is limitted and prescribed tending only to the Declaration of such Duty as every true and well-affected Subject not only by Bond of Allegiance but also by the Commandment of Almighty God ought to bear to your Majesty your Heirs and Successors which Oath such as are infected with Popish Superstition do oppugn with many false and unsound Arguments c. Hence observe still 1 st That the very first and chief intent of the said Statute and Oath made in the third year of King James on which this in his seventh year is grounded was for the discovering and repressing Popish Recusants and not for the repressing Pretestant Subjects 2 dly That 't was such as were infected with Popish Superstition in those dayes that as the Law-makers concluded did oppose the said Oath with many false and unsound Arguments And what was or could be then supposed to be their reason for their so oppugning it is to be considered It could not be simply and only because it was an Oath for that they infected generally or for the most part could Swear in other cases to serve their own turns What then 1 st No doubt it was because of the Declaration contained in it of such Duty as every true and well-affected Subject ought to bear to the King 2 dly Because of the severe renunciation of the Pope his having Power and Authority over the King or to dispose of his Dominions and against the Popes Sentence of Excommunication Absolutions and that damnable Positions of deposing Princes Excommunicated by the Pope absolving Subjects of their due obedience to their Princes c. It appears plainly that they who were infected with such Principles of Disloyalty did not oppose the said Oath simply and only because it is an Oath but because of the Declaration of such Duty and Allegiance to the King as is therein contained * * If it should be objected That there were some that thought it not to belong to their Degree or Profession to Swear If only on that account they refused it and not in favour to those seditious and treasonable Practices and Principles therein abjured then as Persons of a more peaceable disposition they ought to be distinguisht from Rebels according to King James's mind Otherwise if they could take it in dissimulation then t was an unsufficient Tryal Those that did not so think but in other casâ—s could Swear either took it as Blackwell c or declared the unlawfulness of it in respect of Allegiance c. Therefore 't was only against such that so declared or opposed the Allegiance it self that both the Oath and the Penalty were intended See Tâ—… Dialogue God and the King pag. 18. Latin Now our case vastly differs from theirs for whom the Oath was intended there 's no parity between our case and theirs We conscientiously scruple or fear to take that Oath as we do all Oaths viz. because 't is an Oath not because of the Declaration therein contained of such Duty and Allegiance as every true and well affected Subject ought to bear to the King nor yet because of the Testimony or Declaration therein against the Pope his pretended Power Excommunications Absolutions c. damnable Positionâ— c. therein mentioned for that Declaration and Testimony therein contained for Fidelity to the King and against the Pope c. we can freely sign as we have delivered a Declaration to that purpose to the late long Parliament and in some points containing a more full Protestation against Popery in the most Erronious Idolatrous and Superstitious Doctrines thereof which Declaration was accepted by a large Committee of Parliament as sufficient to distinguish us from Papists and entred into the Journal of the House of Commons And therefore the Substance of the Declaration of Allegiance contained in the Oath of Allegiance we cannot oppugn but own as 't is or may be transferred or intended on behalf of the present King in opposition to those Treasonable Practices and Principles thereby renounced and abjured as being perswaded in Conscience that he was eminently preserved and restored by a Hand of divine Providence to have actual Power and Dominion in this Realm and all other his Contries knowing that the most High rules over the Kingdoms of men and that they are at his Disposal And we also believe that in good Conscience we are bound to demean our selves honestly and to live as peaceable minded Christians and true Protestant Subjects under the King and his Government giving to Caesar the things that are Caesar's and to God the things that are God's And then our solemn and serious Protestation is against the Pope as Anti-christian and against those Popish Principles Wicked Positions and Practices viz. Of deposing or murthering Kings and Princes Excommunicated by the Pope Of disposing of their Kingdoms Dominions and Countries Of authorizing
Forreign Princes to invade and annoy them Of absolving Subjects from their Allegiance and Obedience Of licensing any of them to bear Arms raise Tumults or offer Violence or Hurt to their Lawful Kings Princes Governments or Subjects Of Treasons Traiterous Conspiracies and Hellish Plots against King Government Parliament or People Of that damnable Position that Princes that be excommunicated or deprived by the Pope may be deposed by their Subjects or any other All which destructive Principles and abominable Practices together with that Antichristian Spirit from whence they proceed we do in good Conscience and in the sight and presence of God who knows our Hearts utterly abhor protest and testifie against them and therefore do neither refuse nor scruple the said Oath in favour to these or any such Principles What 's now awanting why we must be run to Praemunire to lose our Estates and Liberties Iâ— a peaceable Conversation awanting on our parts No. Is the Duty of Allegiance towards our King awanting No. Are we infectâ—d with Popish Treacherous Treasonable or Destructive Principles against our King or his Government or People No God knows the Innocency of our Hearts and Intentionâ— and men know our peaceably Conversations What then 's the matter that we must be so severely dealt withal to the uttermost rigour of the Law to be deprived of all our outward Liberties Properties Estates Livelihoods and all our outward Comforts in this World Are we guilty of any such essential Offence or capital Crime in our not coming under the circumstance of an Oath as may justly and naturally merit such severity No sure The case is brought to a near point and resumed to a very narrow compass Aninnocent honest quiet and well meaning man both towards the King his Government and People he 's truly principled in his Duty he 's real and honâ—st in his Heart towards his Protestant Prince he 's a real Protestant against the Pope and all Popish Antichristian Positions and Destructive Practices he not only performs his Duty of Allegiance in his peaceable Conversation but also declares it in the sight of God and Men and is willing to sign and subscribe such Declaration of his Duty of Allegiance if he may not otherwise be believed only he conscientiously scruples to say I Swear and to kiss the Book to make his Declaration an Oath for want only of which circumstance and ceremony this poor innocent man and sincere Protestant must be run to a Praemunire his Liberty lost and the little Estate or Substance he has must be forfeited and all taken from him his poor Wife and small Children left desolate wholly Impoverished and want Bread his Wife must go Mourning and wringing her Hands and shedding of Tears night and day for the hard measure she has met withal and her Children dolefully Crying and Mourning for want of Bread Where 's now either Conscience Equity Reason Justice or Mercy Were it not very Inhumane thus to destroy innocent and harmeless Protestants and thereby to gratifie the Popish Spirit and Party meerly because such Protestants are afraid of an Oath They dare not Swear And how is the real intent and end of the Law answered by such severe and inhumane dealing with innocent Protestants who never were impeached nor just'y chargeable either with treasonable Attempts Principles or Practices They cannot be detected either with actual Treason or being infected with any Treasonable Principles by any of their Teachers or others And therefore no such Persons or People as those Laws of Praemunire were really intended against though such can escape them We can appeal to God Angels and all just impartial Men this is our Case We are not the People which in point of Equity or Justice the Law could ever be intended against We are of no such destructive Principles or Practices as either the nature of the Oath points at and intends or the Statute of Praemunire 16 R. 2. c. 5. was provided against unto which Statute both that of the 3d of K. James c. 4. and 7th of K. Ja. c. 6. do refer for the Penalty of a Pramunire upon Persons refusing to Swear to the Dealaration of their Allegiance Let that of 16 R. 2. c. 5. be considered as to the nature and intent thereof Anno deccimo Sexto Ricardi 2. c. 5. The Title Praemunire for purchasing of Bulls from Rome The Crown of England subject to none The conclusive Clause of the Offence and the Penalty viz. VVhereupon our said Lord the King by the assent aforesaid and at the request of his said Commons hath ordained and established That if any purchase or pursue or cause to be purchased or pursued in the Court of Rome or elsewhere any such Translations Processes and Sentences of Excommunication Bulls Instruments or any other things whatsoever which touch the King against him his Crown and his Regalty or his Realm And they which bring within the Realm or them receive or make thereof notification or any other Execution whatsoever within the same Realm or without that they their Notaries Procurators Maintainers Abettors Fautors and Counsellors shall be put out of the King's protection and their Lands and Tenements Goods and Chattels forfeit to our Lord the King and that they be attached by their Bodies if they may be found and brought before the King and his Council there to answer to the causes aforesaid or that process be made against them by Praemunire Facias c. Animadversion Now it being unto this Statute cited 16 R. 2. and the penalty of Praemunire therein mentioned that those of King James about refusing the Oath do refer the Justices as to the Penalty Hence these two things are observable 1. The Nature of the Offence or Fact incurring such severe Sentence and Penalty as that of Praemunire 2. The Nature of the Penalty if self First The Nature of the Offence or Fact is very criminal 't is Treacherous and Treasonable as that of purchasing pursuing or precuring in the Court of Rome c. Sentences of Excommunication Eulls Instruments c. which touch the King his Crown and Regality Secondly The nature of the penalty of Pramunire is suitable to the Fact it bears a proportion and is adopted thereto as that the Persons so highly offending and such perfidious Enemies against the King his Regality or Government by purchasing Sentences of Excommunication and Bulls from Rome against the King tending to destroy him and subvert his Government should incur the penalty of being put out of the King's protection their Lands Tenements Goods and Chattels forfeit to the King and their Bodies attached and they brought before the King and Council to answer c. For how should they desire the King's protection and to enjoy their Priviledges under him who purchase Bulls from Rome in order to destroy him which is still an Offence of the same nature and hind that the Oath of Allegiance and the Acts requiring it in King James his dayes were intended and provided