against Judgment and evident Reasons from both Common Law and Statute Law why Judgment should not be passed against him in this Case 1. From the manner of his being taken and imprisoned and prosecuted to Trial without due processe of Law which is held for error and against Justice by the Law 2. From the incompetency of the Witnesses who were parties concerned in the Case and what they testified to the prejudice of the Prisoner was to their own advantage 3. From the proceedings of the Court in time of Tryal who suffered not the Prisoner to speak in full in his own defence 4. From the Law it self by which he was Tryed and Judged which Law is proved to be contrary to the Law of God and therefore the Judgement of that Law ought to have been arrested And now last of all in brief Judgement ought not to have passed against him 5. Because in common Reason and Equity Justice cannot condemn a man to any personal suffering for the exercise of his Conscience to God-wards in the practise of being Assembled together onely in and for the Worship of the Living God according to the very perswasions of the Spirit of God in the heart and to the example of Scriptures and Primitive Christians which practice of meeting together was not in its self nor in its effects any way disadvantagious or prejudicial to any person upon earth I say Common Reason and Equity amongst men cannot with any Face of Justice Condemn any person to any suffering in such a Case inasmuch as such supposed offence for so meeting together is not any offence against any man but against God onely if it be really an offence and that because of ignorance or error in Judgment and Conscience which is onely punishable by the Judgements of God as pertaining to his Conscience for such offence against him and not to be punished by Temporal Ruleâ—s with Temporal punishments because t is a spiritual transgression and the Spiritual Law of God hath jurisdicton over the offender in such a Case and not Temporal Courts This is proveable by the Laws of this Land as it was ordained in the dayes of Hen 8. by Act of Parliament when the people were nominally divided into two Bodies named Spirituality and Temporality and two Jurisdictions appointed over the people respecting the nature and kind of the offences committed every offence Temporal against man in wrong dealing between man and man the cognizance of this was pertaining to the Temporal Courts and Judges to Hear Judge and Determine and every offence respecting the Church in point of Faith Doctrine and Worship was pertaining to the Spiritual Courts to be heard and Judged by their Spiritual Officers and Judges thus it was in times past in our Nation as Judged by the Rulers in antient dayes reasonable and just thus to do and here fell out a like case a Person taken and accused and brought to Tryal as an Offender for and because of being at a Meeting in the Worship of God which is of Spiritual concernment a matter of Spiritual Worship and Exercise of Conscience relating onely to the spirituality in hearing and determination Yet was this persons Case though of Spiritual Cognizance and Jurisdiction and not properly pertaining to Temporality by the very antient Laws of the Land brought to Tryal and judged in Temporal Jurisdiction and by Temporal Judges which had no power properly to meddle of such a Case and how could that Judgement be just brought forth by Temporal Judges in a Spiritual Case a Case the Judgement of which properly pertained to another Jurisdiction a Judgement passed by such persons in a Case of Conscience out of whose Cognizance and Jurisdiction the Case properly was A Temporal Judgement given in a Spiritual Case And this was the very Case of E. B. wherefore he had all just Ground and Reason to move for Arrest of Judgement and in Justice Judgment ought to have been suspended in that Court and either wholly averted or else he and his Cause transmitted into another Court where Court and Judges had been capable of Hearing and Determining a Spiritual Case for this is Common Reason amongst men that every reputed Offender have Law and Judges according to the nature of his offence and not contrary thereunto an offence in Matters and Cases Spiritual cannot justly be Tryed and Judged in Courts Temporal and by men onely Carnal These exceptions were before me in my view to have contracted and so presented them to the Court but not being permitted time for an hour I was not then capable to present them formally nor to produce the Statutes and Authors to Authorize my exception to the Court but since that time I have drawn them up and do here offer them to the view of the World E. B. Here follows the Tryal of Esther Biddle and three women more FIrst They being called by names and brought before the Bench where the Clerk read the Indictment and said they disturbed the King's Peace and the Peace of the Nation Esther Biddle said She had not broken the King's Peace nor the Peace of the Nation that is good Then the Judge asked Whether she was guilty or not guilty she asked him what evil she had done then he said take her away Then she was taken out of the Court and she desired the Keeper to let her stand still He asked her if she would plead she bid him let her go in again and she should say what was in her heart Then the Judge called for her to come up to the Bar and the Power of the Lord rose in her heart as a fire and an Hammer and she said Fear the Lord who is Judge of all Judges and will give you your Reward according to your works We are brought hither for Justice and you are set under God to do justice and it is Justice we require The Judge said They should have Justice and said Woman Your Counsel is good He asked if she would plead guilty or not guilty she said In the dreadful day of the Lord which is at hand you shall know who are guilty and not guilty you or we of all the Innocent Blood that hath been shed The Judge told her she was to plead she told him If he would shew her what evil she had done she would answer to it He said she was taken in a Riotous Meeting and an unlawful Assembly contrary to the Laws of the Nation She asked him what Religion was used in Olivers dayes and in years past and whether our Meetings were contrary to the Laws of the Nation then and he said no our Meetings were tollerated and indeed said he all things were common She asked him If our Consciences were to change as the Laws and Governments of the Nation changed He said We must be obedient to the standing Laws of the Land He said she must plead She asked for her accusers Then stood up one whose name was Lovel a Vintner the Judge asked
time fulfill thy promise to me what wilt thou go back from thy word on the Bench Let all take notice I am denyed Law and Custome at the bar if ye deny me this motion of Arrest of Judgement Then Alderman Brown spoke to him in these words This is all ye shall have and print it said he if ye will through the Land To which E. B. again replyed that he was no very great Printer yet he thought it his duty to publish these things to as many as he could that all the World may know the Proceedings in the mean time the Court cryed take him away away with them all Goaler and then they began to hale them all away into Prison again and as they passed away some of the Prisoners told the Court that the Lord would remember them in his day and render unto them according to their doings and the hand of the Lord was lifted up and would deliver his people from all their enemies c. Here follows divers exceptions for Arrest of Judgement which would have been brought in against the proceedings in E. Burroughs Case if they had allowed him time for to draw them up and to present them as sufficient reasons why Judgement ought not to have been passed against him but seeing arrest of judgement was denyed him and no time permitted him to present his Reasons therefore they are suitable on this occasion here to be asserted that all men may see he had Law Justice and Truth of his side though contrary to the same he was condemned EXCEP I. Concerning the manner of his Imprisonment and of the Proceedings 1 INasmuch as he was Apprehended and Imprisoned by force of armed men and so without due processe of the Law of the Land forced to a Tryal even contrary thereunto as may appear by the 29. Chap. of Magna Charta no free-man shall be taken or imprisoned or diseized of his free-hold or liberties or free customes or any other wayes destroyed but by the Law of the Land These words the law of the land are explained by the statute of 37. E. 3. Chap. 8. where the words by the Law of the Land are rendred without due processe of Law Also see the Statutes of 28. E. 3. Chap. 3. 42. E. 3. Chap. 3. No man is to be taken or Imprisoned or be put to answer or brought upon tryall without presentment before Justice or matter of Record or by due processe or Writ original according to the old Law of the Land And if any thing henceforth be done to the contrary it shall be void in Law and holden for errour By all which it plainly appears that the manner of his person being seized and Imprisoned was contrary to Magna Charta and the antient good Law of the Land And his being indicted and arreigned and put to answer and caused to plead were all contrary to the Law of the Land and on a wrong foundation as well appears And seeing it is so then good ground and reason had he and fully backed with divers Statutes to move the Court in Arrest of Judgement and that Judgement should not have been passed at all upon him for it was impossible the Judgement could be just and true and according to Law when the proceedings in order to Judgement from first to last were directly contrary to the Law and the words of the Law themselves shall judge the Case seeing what hath been done from first to last in his Case is contrary to both meaning and intent and letter of Law as by the form of divers Statutes is visibly apparent The Judgement given upon him is void in Law and holden for errour by the Law and this is true Judgement Also in a Book called the Mirror of Justice fol. 138. it is rendred a sufficient exception not to be brought to Judgement by a right course in these words the Defendant may say in exception of Bill or Indictment against him That he is not bound to answer hereunto forasmuch as he is not brought to Judgement by a right course which is the very case now in hand this Prisoner was not brought to Tryal by a right course in due Processe of Law but contrary thereunto and that was matter of exception in Law against the passing of Judgement To this adde the very words of the Kings late Proclamation of the 17. of the eleventh Month 1660. The King Commandeth That no Officers nor Souldiers do presume to apprehend or secure any person or persons nor to search any houses without a lawful warrant under the hand and seal of one or more of the Lords of the Privy Counsel or Justices of the Peace in their respective Liberties and we will that the said warrants be directed to some Constable or other known legal Officer and we do declare that all those who shall hereafter be so hardy as to offend against this Our Proclamation shall not onely not receive countenance from us therein but shall be left to be proceeded against according to Our Laws and incur Our high displeasure as persons doing their utmost to bring scandal and contempt upon our Government c. By all which it is apparent the manner of E. B. his apprehending and imprisoning was contrary to both ancient Law of the Land and late Proclamation of the King and inasmuch as the Foundation to wit his imprisonment of his Tryal and so of the Judgement was so false and illegal and directly contrary to the mind of the King and the form of Law how was it possible the Judgement should be just that was laid on such a foundation of proceedings so illegal and this was E. B. his case the manner of his taking and imprisonment in order to Tryal and Judgement was illegal and the Judgement passed upon him in such order and proceedings must therefore needs be illegal also and he ought to have had an arrest of Judgement not onely for a time but for ever EXCP II. Concerning the incompetency of the Witnesses 2. INasmuch as the witnesses against him whose evidence was the immediate cause of the Virdict and so of the Judgement were the very persons that had thus violated the Law of the Land and had themselves apprehended him seized upon him and imprisoned him contrary to the Law as in the first Exception is shewed and because thereof were lyable to an action at Law which might be brought against them for such their seizing upon him and violence done to him Therefore it must needs appear to be in just unreasonable and contrary to the equity of the Common Law which is said to be by the Ancients the Law written in the heart That the very Persons who had so violated the Law even Magna Charta it self in such seizing upon him should be the witnesses too against him and their evidence taken as the onely evidence in his tryal upon which virdict and so Judgement was procured upon him for inasmuch as what evidence was given against him by the
said persons was to their own advantage and to justifie themselves in their illegal dealing and what they spoke to the prisoners disadvantage was to their own profit which proves sufficiently that they were not Competent witnesses against the prisoner nor in Justice and Equity could their witnesse be received against him being the party themselves against him and fully concerned in the case either to get the Prisoner condemned by their Testimony against him that themselves might be justified in the wrong they had done him or else to be left liable to the justice of the Law for their violating of it and it must needs be against the very reason of the Common Law of the Land upon which this Tryal was That parties in unlawful acts of violence against a Person should be permitted to be witnesses in the Prosecution and Tryal against the same Person this was the very case of E. Burroughs wherefore his ground was good to move in arrest of Judgement and backed with the reason and equity of the Common Law for it is also said in the Book called the Mirror of Justice a piece approved by the Lawyers of England fol. 251. It is an abuse or unlawful to suffer a man that is a companion to be a witnesse This truly considered the witnesses against him were incompetent and insufficient also besides the malice and enmity of the men against the person of the prisoner which out of envy or mixed therewith at least t is possible they might give such their evidence and the Law allows not such mens evidence in Judgement and that these persons were such men as sought the ill fare of the prisoner nothing lesse doth appear in their transactions from first to last of this businesse and the Judgement given upon such mens Testimony the case throughly considered could not be just Judgement therefore of right he ought to have had arrest of Judgement EXCEP III. Concerning the proceedings of Court in time of Tryal 3. INasmuch as the proceedings in Court against him were disorderly and not duly in the moderate method of Law prosecution in this particular of his being debarred and not permitted to speak to the utmost what he had to say in his own defence of his Cause which right was manifestly denied him by the command of the Court and action of the Goalers who did violently hale him from the Bar and would not hear him nor suffer him to speak his mind to the utmost nor to read the Kings Proclamation of the 17. of the 11th Month 1660. which was pertinent to defend his cause in divers particulars and he ought to have been heard to the utmost before the passing of Judgement according to 28 Edw. 3. chap. 3. in these words No man is to be imprisoned disherited or put to death without being heard what he can say for himself which was not granted to the Prisoner for he was haled away before he had spoken to the particular parts of the Indictment which he profered to do and that he would alleage both Law and Reason against it but was not suffered wherefore he had Cause enough grounded upon Law and Reason both upon Common and Statute Law to move in arrest of Judgement for in common Equity obvious to every mans view no man can in Justice be sentenced without a full hearing which was this Prisoners case nor can the Judgment be just upon any person who is not heard to the utmost in his own Defence and therefore an arrest of judgment should have been allowed him EXCEP IIII. Concerning the Law it self against which it was said the offence was committed and by which he was tryed and sentenced 4 INasmuch as the offence was only for being at a Meeting and a Meeting onely in the worship of God and nothing said or acted at that Meeting but what was good and just and all this both meeting together and such practise in the Meeting according to the Law of God and the Holy Scriptures and example of Saints in former ages therefore Judgement ought not to have passed against him but might lawfully be Arrested and that more especially because t is a general assent by all Christian men and used as a maxime among Lawyers that no Law of God can be dispensed withall and it is said in the Common Law as appears by Doctor and Studient Cha. 2. Speaking of the Law written in the heart of every man Teaching him what is to be done and what is to be fled and because it is written in the heart therefore it may not be put away nor is it changable by diversity of place or time and therefore against this Law Prescription Statute nor Custome may prevail and if any be brought in against it they be not prescriptions statutes nor customes but things void and against Justice and all Lawes of men ought to be grounded thereupon and Cha. 4. every mans Law must be consonant to the Law of God and therefore the Laws of Princes the Commandements of Prelates the Statutes of Commonalities are not righteous nor obligatory but as they are consonant to the Law of God Also by Statute Law the same is apparent 28. Hen. 8. 7. Where it is expresly said that no man of what Estate Degree or Condition soever he be hath power to dispence with Gods Laws as all the Clergie of this Realm and the most part of the Vniversities of Christendome and we also do affirm and think These things truly considered it may appear Judgement ought not to have passed against the Prisoner in as much as the pretended Law it self according to which this Tryal and Judgement was given is contrary to the Law of God and Condemning such Principle and Practise which are Justified by the Law of God Holy Scriptures and Example of Saints in former Ages as may at large be proved by the Scriptures of Truth in the Acts of the Apostles and elsewhere and the keeping the Law of God and the practises of Christianity according thereunto by any person cannot justly be Condemned by any Law of man and this was the very case of E. B. he was Apprehended Tryed and Sentenced for meeting together with Gods People onely to wait upon and to Worship him which is according to both the Law of God in the Letter and to that written in the Heart and against such practise So according to the Law of God Prescription Statute nor Custome ought not to have prevailed even the Laws of Princes and Commandments of Prelates in such a case are void and against Justice for no man whatsoever can dispence with the Laws of God as hath been shewed wherefore the Prisoner was excusable and justifiable from all Laws of men whatsoever and ought not to have been Condemned into any Penalty or Imprisonment by that Law which is contrary to the Law of God not for his Worships sake nor for Meeting together to wait upon him in his fear Thus it is plain he had just Ground of Exceptions
sat Judge at Law of the Court as Deputy Recorder And E. Burroughs was presently called by Name to the Bar with about eight persons more of them called Anabaptists and being set at the Bar the Jury men were called and Sworn the same who had served the day before and at the second person laying his hand upon the Book E. B. moved the Court in these words Desiring to know what priviledge the Law of the Land allowed the Prisoners in making exceptions against the Jury men this he desired to know of the Bench he said because he did not know the particular points of the Law in that case To which the Deputy Recorder answered they might make exceptions if they had good reasons for it but the Persons being strangers to all the Prisoners they made no exceptions having no knowledge of the men and so could not well except against any of them The Jury been sworn the several Indictments were read in the Court E. Burroughs the first of all according as the Prisoners stood Indicted at the Sessions about five weeks before a Relation of which Proceedings with the Indictment Verbatim ye have in our Second part of the Cry of the Innocent for Justice lately published though for our more orderly manifesting the Truth to the perfect knowledge of all men t is necessary that we insert again in this place the said Indictment which is as followeth viz. LONDON ss THE Jurors for our Lord the King 〈…〉 sent upon their oath that Edward Burroughs late of London together with divers other persons to the said Jurors unknown to the number of a hundred persons the first day of June in the fourteenth year of the Reign of our Lord King Charles the second of England Scotland and Ireland Defender of the Faith c. With Force and Arms c. in London c. To wit in the Parish of Saint Ann and Agnes in the Ward of Aldersgate London aforesaid Vnder pretence of performing Religious Worship otherwise then by the Laws of this Kingdom of England in this Kingdom is established Vnlawfully and Tumultuously did Gather and Assemble themselves together to the great Terrour of his Majesties People and to the disturbance of the Peace of our now Lord the King in contempt of our said Lord the King and his Laws to the evil Example of all others in the like Case offending and against the Peace of our Lord the King his Crown and Dignity c. This being read by the Clerk he proceeded to give the Jury their Charge on this wise That whereas the Prisoner at the Bar stood Indicted for an Vnlawful and Tumultuous Meeting under pretence of Worship contrary to the Law of the Land as in the Form of the Indictment they had heard and had pleaded not guilty of the said Indictment Therefore according to their Oaths they were to make true inquiry between our Lord the King the Prisoner at the Bar in the case for which he stood Indicted and without favour or affection to try the matter and give their verdict according to their evidence whether the Prisoner were guilty in Form and Matter as he stood Indicted This was the sum of the Charge given to the Jury This being done E. Burroughs in particular was set to the Bar and three men called by Name for to give evidence to wit William Branch Thomas Glover and Henry Walker all of them of the Parish of Mary Maudlyn's Old Fishstreet all of whom took their Oath according to form That they should speak the Truth and nothing but the Truth concerning the matter inquired of them as God should help them And having taken their Oaths they were bid to look upon the Prisoner and speak what they could say concerning him as to the matter for which he stood there Indicted Accordingly the first began to speak on this wise That whereas he being an Officer in Captain Coulchester's Company was commanded by his Captain on a certain day being the Sabbath day as he said to go with three files of Musqueteers to the Bull and Mouth where the Quakers were met in Order to break their Meeting as he was commanded and then and there he found the said people met together to the number of about three or four hundred as he might suppose but justly he could not tell how many and amongst them this same Mr. Burroughs said he now at the Bar this same person was standing upon a place and speaking amongst them speaking yes Preaching to them in their way said he and further he commanded his party to martch up the Meeting to the place where this Person now at the Bar stood and he bad him come down and cease speaking but he would not but made some resistance whereupon he commanded his men to pull him down by force which accordingly they did and then took him out of the Meeting and he and his men guarded him to Pauls where their main guard was and he delivered him this same person now at the Bar to his Captain and this I testifie upon my Oath said he c. This done the second person was called to speak what he could say in that case concerning the Prisoner at the Bar to which he said he could say to the same purpose that the person before had testified That whereas he was one of that partie commanded to go to the Bull and Mouth where the Quakers were met together and there they found this same Edward Burroughs now at the Bar Preaching amongst the People and according to command they pulled him down and took him away to their Captain and this was all he could say Then the third evidence was called and he was asked by the Court what he could say in the Case concerning the Prisoner his answer was That he had onely to say what the other two before him had said That whereas he was one of the party of Souldiers commanded to go to the Quakers Meeting and there was this man now at the Bar standing up and Preaching amongst them and they pulled him down and took him away to their Captain and he had no more to say Thus the evidences gave witness and this was the sum of what was said by them all Then the Deputy Recorder asked of them if they were certain this Prisoner was the self same man and how many people they thought were at the Meeting to which they all answered yes they were sure this same person was the man and there might be some hundreds at the Meeting but how many they could not justly tell Then the Court spoke to E. Burroughs and asked him What he had to say for himself in this matter he stood there Indicted and had pleaded not guilty and he had heard the Witnesses against him and if he had ought to say he might now speak To which he began to speak on this wise That he was glad he was permitted to speak in defence of his Cause and he hoped they would fully hear
him in what he had to say He was no Lawyer and therefore unskilled in the particular points of the Law and should not take in hand to proceed as such a one but in as much as God had given him a measure of Reason and a property of Justice and a principle of Equity to discern of different things he should make use of the same to defend the Innocency of his Cause against the Charges falsly laid against him in the Indictment and therefore he desired their patience to hear but while going on in this Discourse to moderate the Court and to prepare their minds for Audience and that he might come discreetly to the matter the Judge of the Court stopped him and interrupted his Speech and told the Prisoner That he must be pertinent and brief for they had much to do and could not be held in long discourses To which the Prisoner replyed his Cause was weighty and desired time of deliberate hearing in order to sound Judgement and he now was to plead on the behalf of his Life and Liberty for ought he knew it might prove so but he should God willing be as brief and pertinent in what he should say as the Case in hand would permit yet could he not be bound up to so many words nor to such a moment of time but now he would proceed to make his exceptions which was as to the Witnesses that they were not competent Witnesses for About this time the Judge interrupted again and asked the Prisoner What Countrey man he was To which was replyed by the Prisoner Let the Court take notice said he how that but a very little before thou desired me to keep close to the matter and to be pertinent to the purpose and now thou hast interposed a question altogether by the businesse to lead me from the occasion in hand and as it were to pervert my speech from what I was going upon and this is not very fair at which words the Judge seemed highly displeased to be so taxed in the Face of the Court by the Prisoner and told him It was not fit for a Prisoner to give such words at the Bar and the reason why he asked him his Name was because he had said he knew not the Laws of England and therefore could not tell whether he was an English man for every English man must needs know the Law of the Land To which E. Burroughs replyed he onely said he knew not the particular points or every particular point of the Law and not that he knew nothing at all of the Laws and as to his Countrey he had been for the most part at London for this divers years and did pertain to this City and desired he might be permitted to go on in his defence of his cause and to shew his exceptions against the Witnesses which the Court gave him leave to do And then he did assert that the said persons were not competent Witnesses in this Case and therefore their evidence ought not to be taken against him for they were a party against him and not indifferent men and they could not Justly and according to right be both Party Prosecutors and Witnesses against him That they were a party it was manifest by their own words in as much as they had testified they took him so and so in the capacity of Souldiers by force of Arms which was not by due prosecution of the Law of the Land by civil Officers by Warrant from some Civil Magistrate or by Constable c. And the Prisoner further testified in these Words That these men who now appeared against him as Witnesses had themselves violated the Law of the Land and done violence unto the Laws and Government of England in that by force of Arms and not by due processe at Law they had seized upon his person contrary to Magna Charta which saith No man shall be taken or imprisoned or disceized of his freehold but by the Law of the Land And also the Kings late Proclamation of the eleventh of January 1660. which then he held in his hand at the Bar wholly prohibiting such manner of seizing upon mens persons as he would shew them by reading the very words of the Proclamation if they would permit him and therefore in as much as these three Persons now witnesses against him had done thus contrary to the Law of the Land and against the very form and force of the Kings Proclamation in apprehending and imprisoning of him by force of Arms by reason of which they were liable to an Action at Law if he pleased to bring it against them for such their illegal seizing upon him and this both the Court and Witnesses themselves knew might be done and therefore to Justifie themselves in such their unjust Action and to save themselves from what danger they were liable to for the same they did now come witnesses against him and their now giving Testimony against him was to their own advantage and to justifie themselves in wrong doing and to preserve themselves from that danger which might justly come upon them And upon this reason he did except against them as not indifferent men nor competent Witnesses against him in this Case Hereabout the Judge spoke to him and told him this was not to the businesse and he must be short for they would not suffer him to make such a flourish before them nor to Preach and Prate to them in the Court and he must prove That these men had seized upon him contrary to Law to this purpose he spoke and seem'd to be much offended at what the Prisoner had spoken To which E. Burroughs again replyed That these three persons themselves had out of their own mouths proved what he said they had told the Court how they were sent in files of Armed men and how they seized upon him by force thereof and led him away Prisoner and they had neither lawful Warrant from any Justice of the Peace neither was there any Constable came with them which he did assert was an illegal apprehending of him and contrary to Magna Charta and he would but read the words of the Kings Proclamation to them which he still held in his hand for that purpose and that would make it more plain Hereabout the Court stopped him again and denyed him Liberty to read the Proclamation saying that was nothing to the purpose and the Judge said He should not over-rule the Court and do not ye see said he how he flourishes and he would delude all the people take him away Goaler he must not be suffered to speak thus Then some attempt was to take him away by force but it was not then done But the Prisoner kept close to his matter still telling the Court and Jury that these men were not fit persons to witnesse against him in as much as they had so unjustly and illegally taken him c. without any warrant from any Justice of the peace or due