other two ISaac Grey being called to the Bar Judg. Will you take the Oath of Allegiance Grey I have been near five weeks in Prison I desire to know for what Judg. We take no notice of your Imprisonment nor how you came here Will you take the Oath Grey I desire to know for what I am imprisoned and then I am ready to answer for no man in this particular hath received so much wrong as my self having received a Wound whereby I was in jeopardy of my Life Judg. If any have wronged you take your course in Law will you swear Grey I am a man of a tender Conscience and do desire time to consider Judg. Take him away which was accordingly done The next day Isaac Grey was called to the Bar and asked by the Judge if he would yet take the Oath Recorder speaking unto him on this wise Mr. Grey you are a wise understanding man and a Scholar be advised what you do and do not ruine your self but take the Oath Grey I desire time to consider and to do nothing rashly Then in the afternoon were all three again called to the Bar and the Indictment read Judg. Mr. Grey will you take the Oath Cryer hold him the Book Grey I desire to know the cause of my first Imprisonment and to discharge me of the same before I give my Answer to the Oath for I do not know my self guilty of any Crime Judg. The Law supposeth you to be disaffected to the present Government and therefore the Oath is tendred to you Grey I understand that the fundamental Law of England alloweth no man to be accused or condemned upon supposition I do further affirm and that in the Light of God That I am not an Enemy to the King nor to any man living upon the face of the Earth Judg. Will you answer Guilty or not Guilty Grey I desire time to consider of the truth of this matter the Indictment being large and having much contained in it which indeed I do not well understand Judg. Will you yet swear or plead to the Indictment Grey I have told you and that for Conscience sake I dare do nothing rashly Judg. What do you talk to us of Conscience every fellow may plead Conscience Grey Do you use to swear such as make no Conscience Judg. Guilty or not guilty When you have answered to this you may plead what you can in your own Defence but first answer Guilty or not guilty The rule of the Law is you must first answer Grey Would you have men swear whether they will or nay especially when against their Conscience Judg. We have Consciences aswell as you If there be any thing as to matter of Conscience it is nothing you must plead Guilty or not guilty that we may not spend time any longer Grey Truly I desire not that the time should be taken up in any thing that may not advantage the good of the People Therefore before I plead give me a Copy of the Indictment and then I shall plead Judg. Sirrah Guilty or not guilty Grey I desire first to be heard as a Christian and then as an English-man Judg. Do not I tell you Sirrah if you will plead not Guilty you shall be heard but if you will not you will run your self into a Premunire Grey I appeal then to God Almighty for I shall not wrong my Conscience Judg. It is no matter of Conscience Guilty or not Guilty Grey Not Guilty The last day of Tryal all the three persons aforesaid being called to the Bar after some discourse between my fellow Prisoners and the Court my self was forced from thence before I was heard my fellow Prisoners being violently thrust within the Felons Bar but my self by Command from the Bench was not thrust there but I desired to be with my fellow Prisoners and to fare as they fared and so was put in with them but after some time the Court being in a confusion and their Officers abusing my fellow Prisoners by stopping their mouths and the common Hangman endeavoured to gag one of them that they might not speak in their own defence Then I desired I might be heard upon which the Court called me nearer to them Then I approached to their Bar and spake on this wise I desire to know whether according to the Law of England and the Proceedings of this Court we may not be allowed to put in Bail to prosecute our Traverse at the next Sessions To which they answered We might not Then I desired them to do me and my fellow Prisoners Justice For you are to know that as we stand arraigned at this Bar so shall you appear before the great Tribunal of God's Justice to give an Account of this dayes work as also of all the deeds done in the Body whether they be good or evil and what measure ye mete to us shall be measured to you again Judg. We know that as well as you and then called to swear the Jury the Court being in a confusion and the Officers and the Hangman abusing my fellow Prisoners as aforesaid then I went my way the Chief Justice so called being in a Rage called to me in an abrupt manner saying You shall be tryed according to the Laws Grey I do desire to be tryed by the Laws and not by Passion Then they went on being all in a confusion and disorder unto Sentence which was on this wise You shall forfeit all you Real Estate for life and your Personal Estate for ever and be put out of the King's Protection and imprisoned during the Kings pleasure according to the Statute of Premunire Which Sentence also passed upon my two fellow Prisoners aforesaid These things are part of what passed between the Court and my self many things being omitted by reason of the often Interruptions and are written to prevent mistakes and to inform all moderate Inquirers concerning the Severity and Injustice that we met withal Not only to the losse of all my Estate and Liberty but of my Practice also to the dammage and detriment of many of my Patients who through necessity are compelled to come to Prison to me but have been sometimes hindred from coming to speak with me But our desires are to forgive them that trespass against us as God hath forgiven us our trespasses against him J. G. An Additional Postscript further manifesting the Illegality of the late aforesaid Proceedings AN Oath saith Cook 3d part Institutes chap. 74. p. 165. is an affirmation or denyal by any Christian of any thing lawful and honest before one or more that have authority to give the same for advancing of Truth and Right calling Almighty God to witness that this Testimony is true And he further saith No Oath ought to be administred but such as is allowed by the Common Law or by Act of Parliament neither can any Oath be altered that is allowed by Common Law or Act of Parliament but what is altered by Act of Parliament Note
liberty and do question whether you ought in Justice to tender me the Oath on the account I am now brought before you because I am supposed to be an Offender or else why have I been six weeks in Prison already let me be cleared of my Imprisonment and then I shall answer to what is charged against me and to the question now propounded for I am a lover of Justice with all my soul and am well known by my Neighbours where I have lived to keep a Conscience void of Offence both towards God and towards man Judg. Sirrah leave your Canting J. C. Is this Canting to speak the words of the Scripture Judg. It 's Canting in your mouth though they are Paul's words J. C. I speak but the words of the Scripture and it is not canting though I speak them but they are words of truth and soberness in my mouth they being witnessed by me and fulfilled in me Judg. We do ask you again whether you will take the Oath of Allegiance it is but a short Question you may answer it if you will J. C. By what Law have you power to tender it Then after some Consultation together by whispering they called for the Statute-Book and turning over the leaves they answered Judg. By the 3d of King James J. C. I desire that Statute may be read for I have consulted it and do not understand that you have power by that Statute to tender me the Oath being here before you in this place upon this occasion as a Delinquent already and therefore I desire the Judgment of the Court in this Case and that the Statute may be read Judge Then they took the Statute-Book and consulted together upon it and one said We are the Judges of this Land and do better understand our Power than you do and we do judge We may lawfully do it J. Cr. Is this the Judgment of the Court Judg. Yes J. Cr. I desire the Statute to be read that impowers you to tender the Oath to me upon this occasion in this place for Vox audita perit set litera scripta manet therefore let me hear it read Judg. Hear me J. Cr. I am as willing to hear as to speak Judg. Then hear me You are here required to take the Oath by the Court and I will inform you what the Penalty will be in case you refuse for your first denial shall be recorded and then it shall be tendered to you again at the end of the Sessions and upon the second refusal you run a Premunire which is the forfeiture of all your Estate if you have any and Imprisonment during life J. C. It is Justice I stand for let me have Justice in bringing my Accuser face to face as by Law you ought to do I standing at your Bar as a Delinquent and when that is done I will answer to what can be charged against me as also to the Question until then I shall give no other Answer than I have already done at least at present Then there was a Cry in the Court Take him away which occasioned a great interruption and J. C. spake to this purpose saying Mind the Fear of the Lord God that you may come to the knowledge of his Will and do Justice and take heed of oppressing the Innocent for the Lord God of Heaven and Earth will assuredly plead their Cause and for my part I desire not the hurt of one of the hairs of your heads but let God's Wisdom guide you These words he spake at the Bar and as he was carrying away On the sixt day of the week in the forenoon following the Court being sate John Crook was called to the Bar. C. Judg. Friend Crook We have given you time to consider of what was said yesterday to you by the Court hoping you may have better considered of it by this time therefore without any more words will you take the Oath and called to the Clerk and bid him read it J. C. I did not neither do I deny Allegiance but do desire to know the Cause of my so long Imprisonment for as I said I stand at your Bar as a Delinquent and am brought hither by force contrary to the Law therefore let me see my Accuser or else free me by Proclamation as I ought to be if none can accuse me For the Law is grounded upon right Reason and whatsoever is contrary to right Reason is contrary to Law and therefore if no Accuser appear you ought to acquit me first and then I shall answer as I have said If any new matter appear otherwise it is of force and that our Law abhors and you ought not to take notice of my so being before you for what is not legally so is not so and therefore I am in the condition as if I were not before you and therefore it cannot be supposed in right Reason that you have now power at this time and in this place legally to tender me the Oath Judg. Reade the Oath to him and so the Clerk began to reade J. C. I desire Justice according to the Laws of England for you ought first to convict me concerning the cause of my so long Imprisonment for you are to proceed according to Laws already made and not to make Laws for you ought to be Ministers of the Law Judg. You are a saucy and an impudent fellow will you tell us what is Law or our duties Then said he to the Clerk Reade on and when the Clerk had done reading I. Cr. said Reade the Preface to the Act I say again reade the Title and Preamble to the Act for Titles to Laws are Claves Legum as keys to open the Law for by their Titles Laws are understood and known as men by their faces Then the Judges would have interrupted me but I said as followeth If you will not hear me nor do me Justice I must appeal to the Lord God of Heaven and Earth who is Judge of quick and dead before whom we shall all appear to give an account for the deeds done in the body for he will judge between you and me this day whether you have done me justice or not These words following or the like I spake as going from the Bar being pulled away viz. Mind the Fear of the Lord God that you may do Justice lest you perish in his Wrath For sometimes the Court cryed Pull him away and then said Bring him again and thus they did several times like men in confusion and disorder The same day in the afternoon Silence being made John Crook was called to the Bar before the Judges and Justices aforesaid the Indictment being read the Judge said Mr. Crook You have heard your Indictment what say you Are you Guilty or not Guilty I. C. I desire to speak a few words in humility and soberness in regard my Estate and Liberty lies at stake and am like to be a President for many more therefore I hope the Court will not
what you are here for but here finding you we tender you the Oath and you refusing it your Imprisonment is now just and according to Law Something omitted which I spake afterwards I. Cr. How came I here if you know not I have told you it is by force and violence which our Law altogether condemns and therefore I not being legally before am not before you for what is not legally so is not so and I not being legally brought to your Bar you ought not to take notice of my being here Judg. No no you are mistaken so you may say of all the People gazing here they not being legally here are not here I tell you a man being brought by force hither we may tender him the Oath and if he take it not he may be committed to Prison Authority hath given us the power and the Statute-Law hath given us authority to tender the Oath to any person and so have we tendred it you and for your not taking of it you are indicted by the Grand Jury Answer the Accusation or confute the Indictment you must do the one or the other answer Guilty or not Guilty I. Cr. Here I was interrupted but might have said that the People that were Spectators beholding and hearing the Tryals are not to be called Gazers as the Judge terms them because it is their Liberty and Priviledge as they are English-men and the Law of England allows the same so that they are not to be termed Gazers upon this account but are legally in that place to hear Tryals and see Justice done and might have spoken if occasion had been any thing in the Prisoners defence tending to clear up the matter in difference and the Court must have heard them or him and this as a stander-by or Amicus curiae so saith Cook I. C. The Law is built upon right Reason or right Reason is the Law and whatever is contrary to right Reason is contrary to Law the Reason of the Law being the Law it self I am no Lawyer and my knowledge of it is but little yet I have had a love to it for that Reason I have found in it and have spent some leisurable hours in the reading thereof and the Law is that which I honour and is good in its place many Laws being just and good not all but I say a great part of it or much of it and that is not my intention in the least to disparage or derogate from Judg. Mr. Crook You have been told you must plead Guilty or not Guilty or else you will run your self into a Premunire be not your own enemy nor be not so obstinate I. Cr. I would not stand obstinately before you neither am I so if you understand it otherwise it is a mistake indeed Judg. Will you speak to the Indictment and then you may plead If you will not answer Guilty or not Guilty we will Record it and Judgment shall go against you Clerk enter him Recorder Mr. Crook If you will answer you may plead for your self or will you take the Oath The Court takes no notice how you came hither What say you will you answer For a man may be brought out of Smithfield by head and shoulders and the Oath tendred to him and may be committed without taking notice how he came here I. Cr. That kind of Proceeding is not only unjust but unreasonable also here was some interruption and against the Laws aforesaid which say No man shall be taken or imprisoned but by Warrant or due Process of Law so that this speech of the Recorders savours more of Passion than Iustice and Cruelty than due observance of Law for every forcible restraint of a man's Liberty is an Imprisonment in Law Besides This kind of practice to take men by force and imprison them and then ask them Questions the answering of which makes them guilty is not only unrighteous in it self but against Law and makes one evil act the ground of another and one injury offered to one the foundation of another and this is my Case this day Interruption Iudg. Mr. Crook you must not be your own Iudge we are your Iudges but for our parts we will not wrong you Will you answer Guilty or not Guilty if not you will run your self into a Premunire unavoidably and then you know what I told you would follow for we take no notice how you came hither but finding you here we tender you the Oath I. Cr. Then it seems You make the LAW a Trapan to ensnare me or as a Nose of Wax or what you please Well! I shall leave my Cause with the Lord God who will plead for me in Righteousness But suppose I do take the Oath now at this time you may call me again to morrow and make a new tender or others may call me before them Iudg. Yes if there be new matter or if there fall out any emergent occasion whereby you minister on your part new occasion Mr. Crook will you swear I. Cr. If I do take it to day it may be tendred me again to morrow and so next day ad infinitum whereby a great part of my time may be spent and taken up in taking the Oath and swearing C. Iudg. When you have once sworn you may not be put upon it again except you minister occasion on your part I. Cr. Is this the Judgement of the Court that the Oath once taken by me is sufficient and ought not to be tendred a second time without new matter ministred on my part Iudg. Yes you making it appear you have once taken it I. Cr. Is this the Iudgment of the whole Court for I would not do any thing rashly Judges Yes it is the Iudgement of the Court to which they all standing up said Yes I. C. Then it seems there must be some new occasion ministred by me after I have once taken it or it ought not to be tendred to me the second time Iudges Yes I. C. Then by the Iudgment of this Court if I make it appear that I have taken the Oath once and I have ministred no new matter on my part whereby I can be justly charged with the breach of it then it ought not to be tendred me the second time But I am the man that have taken it once being a Freeman of the City of London when I was made free witness the Records in Guild-hall which I may produce and no new matter appearing to you on my part If there do let me know it if not you ought not by your own Iudgment to tender me it the second time for de non apparentibus non existantibus eadem Ratio est Interrupted by the shout of the Court when these last words might have been spoken Iudg. Mr. Crook you are mistaken you must not think to surprize the Court with Critiscisms nor draw false conclusions from our Iudgments I. Cr. If this be not a natural conclusion from the Iudgment of
the Court let right Reason judge and if you recede from your own Iudgments in the same breath as it were given even now what Iustice can I expect from you for if you will not be just to your selves and your own Iudgments how can I expect you should be just to me Judg. Mr. Crook If you have taken it if there be a new emergency you are to take it again as for instance The King hath been out of England and now is come in again there be many have taken it twenty thirty or forty years since yet this new emergency requires it again and although you have taken it yet you must not make it appear before you answer Guilty or not Guilty Therefore do not wrong your self and prejudice your self and Family Do you think that every fellow that comes hither shall argue as you do we have no more to do but to know of you whether you will answer Guilty or not Guilty or take the Oath and then you shall be freed from the Indictment if you will not plead Clerk record it What say you are you Guilty or not Guilty I. Cr. Will you not stand to your own Iudgments did you not say even now that if I had once taken the Oath it ought not to be tendred to me the second time except I administred new matter on my part that I have not kept it c. but no such matter appearing you ought not to tender it to me the second time by your own confession much less to indict me for refusal Iudg. If you will not plead we will record it and Judgment shall be given against you Therefore say Guilty or not Guilty or else we will record it The Clerk beginning to record it I. Cr. Before I answer I demand a Copie of my Indictment for I have heard it affirmed by Counsel learned in the Law That if I plead before I have a Copie or have made my Exceptions my Exceptions afterwards against the Indictment will be made void Therefore I desire a Copie of the Indictment Judg. He that said so deserves not the name of a Counsel for the Law is You must first answer and then you shall have a Copie Will you plead Guilty or not Guilty J. C. If my pleading Guilty or not Guilty will not deprive me of the benefit of quashing the Indictment for insufficiency or other Exceptions that I may make against it I shall speak to it Judg. No it will not Will you answer Guilty or not Guilty If you plead not the Indictment will be found against you Will you answer we will stay no longer J. Cr. I am upon the point Will not my pleading deprive me of the benefit of the Law for I am tender in that respect because it is not my own Case only but may be the Case of thousands more Therefore I would do nothing that might prejudice others or my self as a Christian or as an English-man Judge Understand your self but we will not make a bargain with you said another Judge you shall have the Right done you as an English-man the way is to answer Guilty or not Guilty If you plead and find the Indictment not good you may have your Remedy Answer Guilty or not Guilty J. Cr. As to the Indictment it is very large and seems to be confused and made up of some things true and some things false my Answer therefore is What is true in the Indictment I will not denie because I make conscience of what I say and therefore Of what is true I confess my self Guilty but what is false I am not Guilty of that Judg. That is not sufficient either answer Guilty or not Guilty or Judgment will be given against you J. Cr. I will speak the truth as before the Lord as all-along I have endeavoured to do I am not Guilty of that which is false contained in the Indictment which is the substance thereof Judg. No more ado the form is nothing Guilty or not I. C. I must not wrong my Conscience I am not Guilty of what is false as I said before what is true I am Guilty of what is not true I am not Guilty of that which is the substance thereof as I said before Recorder It is enough and shall serve turn Enter that Clerk The seventh day of the week called Saturday Silence being made John Crook was called to the Bar. The Clerk of the Sessions read something concerning the Jury which was empanelled on purpose as was said The Jury being discharged who were Eye-witnesses of what passed between us and the Court And this Jury being divers of them Souldiers some of whom did by violence and force pull and hale Friends out of their Meetings and some of us out of our houses and these were of the Jury by whom we were to be tryed The Clerk reading the Indictment as I remember I. Cr. I desire to be heard a few words which are these That we may have liberty till the next Quarter-Sessions to traverse the Indictment It being long and in Latine and like to be a President And I hope I need not press it because I understood that you promised and especially the Recorder who answered when it was desired you shall that we should have Counsel also the which we cannot be expected to have had the benefit of as yet the time being so short and we kept Prisoners that we could not go forth to advise with Counsel neither could we tell how to get them to us We having no Copy of the Indictment before this morning and because so suddenly hurried down to the Sessions we cannot reasonably be supposed to be provided as to matter of Law to make our Defence Judg. We have given you time enough and you shall have no more for we will try you at this time therefore swear the Jury I. Cr. I desire we may have Justice and that we may not be surprized in our Tryal but that we may have time till the next Quarter-Sessions our Indictment being in Latine and so large as it is and this is but that which is reasonable and is the practice of other Courts for if it be but an Action above forty shillings it is not ordinarily ended under two or three Terms And in the Quarter-Sessions if one be indicted for a Trespass if it be but to the value of five shillings he shall have liberty to enter his Traverse and upon Security given to prosecute he shall have liberty till the next Sessions which is the ordinary practice which liberty we desire and we hope it is so reasonable it will not be denyed especially upon this occasion we being like to be made a President And Courts of Justice have used to be especially careful in making of Presidents for we are not provided according to Law to make our Defence at this time and therefore if we be put upon it it will be a surprizal Judg. There is no great matter of Law in the
me leave and the occasion requires it is to the point in these two heads viz. matter of Law and matter of Conscience to matter of Law I have this to say first as to the Statute it self it was made against the Papists occasioned by the Gunpowder-Plot and is entituled For the better discovery and suppressing of Popish Recusants but they have liberty and we are destroyed what in you lyes Interrupted by the Judges and disturbance of the Court As to Conscience I have something to say and that is It is a tender thing and we have known what it is to offend it and therefore we dare not break Christ's Commands who hath said Swear not at all and the Apostle James said Above all things my Brethren swear not interrupted the Court calling again to the Executioner to stop my mouth which he did accordingly with his dirty cloth as aforesaid and his Gag in his hand Judg. Hear the Jury who said something to him which was supposed to give in the Verdict according to his order for they were fit for his purpose as it seems they beginning to lay their heads together before we had spoke any thing to them only upon his words Judg. Cryer make Silence in the Court then the Recorder taking a Paper into his hand read to this purpose viz. The Jury for the King do find that John Crook John Bolton and Isaac Grey are Guilty of Refusing to take the Oath of Allegiance for which you do incur a Premunire which is the forfeiture of all your real Estates during life and your personal Estates for ever and you to be out of the King's Protection and to be imprisoned during his pleasure and this is your Sentence I. C. But we are still under God's Protection Record Adjourn the Court which was done accordingly and we remanded to Newgate where we remain Prisoners Now follows a Copy of the Indictment with some Notes and Observations on the same whereby it may appear how false it is and how easily it might have been quasht for insufficiency had we been allowed time which by Law they ought to have granted and been suffered to have made our own Defence but that they would not do but stopt our mouthes as before is said by the hands of the Executioner to prevent what otherwise as the Judge said might have come to pass viz. by having liberty to make our Defence by that means we should make our selves famous and them odious JUr pro Dno Rege super sacru suu presentant qd Ad. General Quarteral Session Pacis Dni Regis tent pro Civitat London apud Guihald ejusdem Civitat die Mercurij scilt vicessimo quinto die Junij Anno Regni Dni n'ri Caroli sc'di Dei gra Angliae Scot ' Franc ' Hiberniae Regis Fidei defensor c. quarto decimo coram Joh. Frederick Milite Majore Civitat London Thoma Adams Milite Baronet Rico ' Browne Milite Baronet Thoma Aleyn Milite Baronet Aldr'is d' ce Civitat ac al. Sociis suis Justic dci d'ni Regis ad Pacem in Civitat pred conservand Necnon ad diver's felon transgr al. malef'ca infra eandem Civitat perpetrat audiend terminand assign Sessio ista pacis adjornat fuit per prefat Justic dc'i d'ni Regis ib'm usque diem Jovis scilt vicessim sext diem ejusdem mensis Junij anno supradicto ad horam septimam ante merid ejusdem dici apud Justicehall in le Old Bailey in Paroch sci Sepulchri in Warda de Farringdon extra London pred tenend coram prefat Justic al. Sociis suis ad faciend ulterius prout Cur. Con. c. Ac ad eundem diem Jovis vicessimum sextum diem Junii Anno quarto decimo supradicto General Quarterial Sessio ista pacis tent fuit pro Civitat London pred per adjornament pred apud Justicehall pred in Paroch Ward pred coram praefat Johe Frederick Milite Majore Civitat London Thoma Adams Milite Baronet Ricardo Browne Milite Baronet Thoma Aleyn Milite Baronet Aldr'is d' ce Civitat ac Willo Wilde Milite Baronet uno Servien dc'i dni Regis ad Legem ac Recordator Civitat pred Ac al. Sociis suis Justic d'ci D'ni Regis ad Pacem in Civitat pred conservand Necnon ad divers felon transgr et al. malefa infra eandem Civitat perpetrat audiend terminand assign Ac adtunc ibm praed General Quarterial Sessio Pacis pred ulterius adjornat fuit per prefat Justic usque diem Veneris scilt vicessim septim diem dci mensis Junii Anno quarto decimo supradicto ad horam septimam ante merid ejusdem diei apud Justicehall pred in Parochia Warda praed tenend coram praefat Justic al. Sociis suis ad faciend ulterius prout Cur. Con. Ac superinde ad istant eandem General Quarteral Session Pacis tent pro Civitat London per Adjornament praed apud Justice-hall praed in Paroch Warda praed dco die Veneris vicessimo septimo die Junii Anno quarto decimo supradicto coram praefat Johe Frederick Milite Majore Civitat London ' Thoma Adams Milite Baronet Rico. Brown Milite Baronet Rico. Chiverton Armigero Thoma Aleyn Milite Baronet Aldr'is d' ce Civitat Ac Willo Wilde Milite Baronet uno Servien dci ' D'ni Regis ad Legem ac Recordator ejusdem Civitat ac al Sociis suis Justic d'ci D'ni Regis ad Pacem in Civitat praed conservand Necnon ad divers felon transgr al malef'ca infra eand Civitat perpetrat audiend terminand assign in aperta General Quarterial Session praed praefat Justiciar Pacis ult noiat existentes major pars Justic Pacis ipsius D'ni Regis infra d'cam Civitat London ' ad tunc scilt dco vicessimo septimo die Junii Anno quarto decimo supradco apud dcam Paroch Sci. Sepulchri in Warda de Farringdon extra London praed presen existend obtuler Anglie die tender Johi Crooke nuper de London Generoso Johi Bolton nuper de London Aurifabro Isaac Gray nuper de London Generoso eor cuilibt seperatim per se ad tunc existen cuilibt eor existen ultra etat octodecim Annor Jurament content in quodam Actu in Parliament Dni Jacobi nuper Regis Angliae tent per Prorogationem apud Westm in Com. Middles quinto die Novembris Anno. Regni sui Angliae Franc. et Hiberniae tertio et Scotiae tricesimo nono nuper edit et pro vis in hijs Anglicanis verbis sequen viz. I do truly and sincerely acknowledge profess testifie and declare in my conscience before God and the world that our sovereign Lord King Charles the second is lawful and rightfull King of this Realm and of all other his Majesties Dominions and Countries And that the Pope neither of himself nor by any Authority of the
first view may seem otherwise for the Maxime is That the Reason of the Law is the Law it self Now followeth some Exceptions against the Statute made in the 7 Iacobi 6. which requires the taking of the said Oath c First the Title is to be considered which is Who shall take the Oath of Obedience and by whom it shall be ministred and within what time Note that it is not said to the King and his Successors but only to the King And it appears by the Preamble also that this Act was made to enlarge the persons that were to take the Oath being all the Subjects of what estates dignity preheminence sex quality or degree soever he she or they be or shall be above the age of eighteen years c. the former Act of the 3 Iacobi appertaining only to Popish Recusants as before is said Again Note that in the Title aforesaid it is said And within what time it shall be taken which time seems to be particularly set down within which all sorts of persons wâ—â—e to take it as appears in these words towards the end of the said Act And to the intent that due execution may be had of the premises without delay it is further enacted by the Authority aforesaid That all the persons before named who have any certain time limited or expressed when to take the aforesaid Oath shall at the time therein prescribed take the same And the rest within six months next after the end of this present Session of Parliament Note here is a prefixed time for the several sorts of persons to take the said Oath And the rest mark that implying all others whatsoever to take it within six months next after the end of this present Session of Parliament but no Provision is made in the said Act either to minister it afterwards or to swear to any other besides King Iames as it seems and as by the Oath it self also appears for it is said the Oath was to be administred for the tryal of his Majesties Subjects how they stand affected c. and not to the Subjects of his Majesty his Heirs and Successors because it may be supposed the Law-makers intented this Oath to be only sworn to King Iames for it is no where said in the Statute that those who have power to tender the Oath should swear all persons that were to take it to King Iames and afterwards to his Heirs and Successors for though Heirs and Successors are named in the Oath yet it is no where said that this Oath shall be inforced upon the Subjects to swear to any other King after his decease By all which it may be thought that King Iames onely was to be sworn to by vertue of these Laws for although he that took that Oath was thereby obliged to perform it both to the King his Heirs and Successors yet it is no where expressed in either of the Acts that the persons then appointed to take the Oath or others afterwards should take the same to every of the Kings Heirs and Successors as they should come to the Crown But notwithstanding all that hath been said if it should yet be admitted that it might be tendred on the behalf of his Successors after his decease yet these words are carefully to be observed by all who tender the said Oath viz. being duely tendered according to the true intent and meaning of the Statutes and the rather the Ministers of the Oath ought to be careful in observing all due circumstances as in the causing it to be read at the times of the respective tenders according to the directions of the Statutes which was not done to us upon our Tryal some of us not having it read to us at all and others but part of it and that but once neither and the more strictly because the penalty for refusing is so great as Premunire and those other words also are truly to be considered viz. according to the true intent and meaning hereof which cannot be supposed to be observed when it is tendred unto those who do yeeld all due obedience unto the King and also do deny the Pope his principles and practices as aforesaid and refuse it in conscience to an Oath these answering the substance of the Law which requires obedience to the King but cannot observe the ceremony or imposed formality thereof for conscience sake and in this Case this distinction is to be kept unto in this Law as well as others viz. Forma verbalis et forma Legalis which is essentialis or the substance of the Law or thing to be performed for Lex non est insermonam foliis sed in radice rationis posita est Englisht The Law is not in the leaves of words but is placed in the root of Reason and if the distinction aforesaid had been observed the Oath could not in Justice have been tendred to us when the substance of the Law is answered though the particular words or formalities be not kept to yet it hath been adjudged a good observance as in Bufage's Case in the 10th Book of Cook 's Reports upon the Statute of Hen. 6. 23. giving power to the Sheriffs to take Bail c. these three things were alledged against the Sheriff 1. In the Obligation the Law saith reasonable Sureties and the Sheriff took but one Surety 2. In the Condition the Sheriff put in that the Prisoner should appear in person and the Statute saith onely appear generally without the word person 3. Ad respondendum when the Statute saith only the day not naming to answer Yet for all this the Obligation was judged good for the Reasons mentioned in the Book And surely if these omissions and additions contrary to the express words of the Statute could be justly dispensed withal much more then in our Case might our refusal of a ceremony or imposed formality be born withall the substance being observed especially considering the disproportion of the penalties the former the losse of a small sum only but ours the losse of all outward Estates and Liberties also besides being put out of the King's Protection as our Sentence was But we leave this matter to be judged by Him that judgeth righteously More Presidents might be urged in this Case to manifest the hard measure we have met withall but I shall conclude with these few Instances following Vide Sir Robert Cotton's Collections Records in the Tower 39 Hen. 6. 1. That an Oath being the Law of man ought not to be performed when the same tendeth to the suppression of Truth and Right which is against the Law of God and the Statute of 28 Hen. 8. 7. saith That no man of what estate degree or condition soever he be hath power to dispense with God's Laws as all the Clergy of this Realm and the most part of the Vniversities of Christendom and we also do affirm and think and the Common Law of England also saith no less Dr. Stud. cap. 3. pag. 6.
Case it is only matter of Fact Whether you have refused to take the Oath or not that is the point in issue And what Law can arise here Record Mr. Crook The Keeper of the Prison was spoken to to tell you that we intended to try you this day and therefore ordered him that Counsel might come to you if you would and also that the Clerk should give you a Copie of the Indictment This is fair Therefore we will go on to swear the Jury for the matter is Whether you refuse the Oath or not and that is the single point and there needs neither Law nor Counsel in the Case and therefore we considered of it last night when we sent you word and did determine to try you and therefore it is in vain to say any thing for the Court is resolved to try you now Therefore swear the Jury Cryer I. C. I hope you will not surprize us Then the other Prisoners who also were endited cryed out having spoke something before Let us have Justice and let not the Jury be sworn till we be first heard so there was a great noise the Court being in a confusion some crying Take them away others Stay let them alone others saying Go on to swear the Jury which the Cryer in this uproar and confusion did do something as if he had done it Then we all cryed out for Justice and Liberty till the next Sessions the Court being in a confusion some crying one thing and some another which now cannot be called to mind by reason of the great distraction that was in the Court neither what we said to them nor they to us the noise was so great and the Commands of the Court so various to the Officers some commanding them to take us away others to let us alone others to bring us nearer others cryed put them into the Bail-Dock others to put them within the furthest Bar where the Felons use to stand where we were forc'd into accordingly and in this hurliburly and confusion that was amongst them some men were sworn to testifie that we refused to take the Oath which we never positively did other Officers of the Court whom they would have sworn refused to swear though pressed to it by the Chief Justice they desiring to be excused Then spake one of the Prisoners again pretty much but could hardly be understood by reason of the noise in the Court but the People to whom he spake with a loud voice by way of exhortation might hear the substance of what he said which cannot now particularly be called to mind but it was to express the presence and love of God to himself and to exhort others to mind his Fear that they also might be acquainted with God c. Judg. Stop his mouth Executioner which was accordingly done Prisoners Then we cryed out Will you not give us leave to speak for our selves We except against some of the Jury as being our Enemies and some of them who by force commanded us to be pulled out of our Meetings contrary to Law and carried us to Prison without Warrant or other due Process of Law and shall these be our Judges we except against them Judg. It is too late now you should have done it before they had been sworn Jury-men Jury go together that which you have to find is Whether they have refused to take the Oath or no which hath been sworn before you that they did refuse you need not go from the Bar and like words said the Recorder and others there being a confusion and noise in the Court many speaking together Prisoners Then we cryed for Justice and that we might be heard to make our Defence before the Jury gave their Verdict but the Judge and Recorder said we should not be heard making good by their practice what the Chief Judge had said the day before viz. That if we had liberty to speak we would make our selves famous and them odious crying again Stop their mouths Executioner which was done accordingly with a dirty cloth and also endeavoured to have gagg'd me striving to get hold of my tongue having a Gag ready in his hand for that purpose and so we were served several times Then I called out with a loud voice Will you condemn us without hearing This is to deal worse with us than Pilate did with Christ who though he condemned him without a cause yet not without hearing him speak for himself but you deny us both Judg. Let Mr. Grey come to the Bar room being made he was conveyed by an Officer to the inner Bar where he spake to the Court on this purpose I desire to know whether according to Law and the practice of this Court my self and my fellow-Prisoners may have liberty to put in Bail to prosecute our Traverse at the next Sessions Court No we will try you presently Judg. Stop their mouths Executioner and this was the cry of many upon the Bench they being still in a continued confusion some crying to the Jury Give in your Verdict for we will not hear them with other words which could not be heard for the noise the Court being in confusion I. C. You might as well have caused us to have been murdered before we came hither as to bring us hither under pretence to try us and not give us leave to make our Defence you had as good take away our Lives at the Bar as to command us thus to be abused and to have our mouths stopt Was ever the like known let the Righteous God judge between us Will you hear me you have often promised that you would Judg. Hear me and we will hear you then he began to speak and some others of the Bench interrupted him sometimes they speaking two or three at a time and a noise amongst the Officers of the Court but the Judge said We may give you liberty till the next Sessions but we may chuse and therefore we will try you now I. C. I bade the People take notice of their Promise that I should have liberty to speak saying see now you be as good as your words Judg. The Law of England is not only just but merciful and therefore you shall not be surprized but shall have what Justice the Law allows Interruption I. C. I remember what the Judge said even now that the Law of England was a MERCIFUL Law that the Court had said before they might if they would give us liberty till the next Sessions but they would not and the Maxime of the Law also is Summun Jus est summa Injuria therefore I hope your practice will make it good that it is a Merciful Law and not to execute summum jus c. upon me and thereby condemn your selves out of your own mouths Judg. Jury give in your Verdict I. C. Let me have liberty first to speak it is but few words and I hope I shall do it with what brevity and pertinency my understanding will give