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
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
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
therefore to will and require you to receive and keep the said George Whitehead and Thomas Burr in the common Goal for the City and County aforesaid until they shall be from thence discharged by due order of Law And hereof fail not Given under my Hand and Seal the 21st day of March Anno Dom. 1679. To the Constables of the Ward of West-Wymor and to either of them to convey and to your Keeper of the Common Goal aforesaid to receive and keep the said George Whitehead and Thomas Burr according to this Warrant G.W. Does the Recorder own this to be a true Copy Yea or Nay R. I care not whether it be true or false there 's another Mittimus against you c. G.W. Let this Mittimus be considered first Doft thou own it to be a true Copy or no We have it attested R. It may be it is what then It may be true for ought I know c. or to that effect G.W. Then pray observe this Mittimus the Tenor of it what it contains 1 st As to the Cause of our Commitment 2 dly That is the Premisses which we are to answer to and to be tryed and delivered upon 3 dly And that according to Law or according to due course of Law c. 1 st Then the Charge concerns matter of Fact i.e. being at a Meeting And 2 dly What such a Meeting or how qualified i.e. A Meeting in Disturbance of the publick Peace c. These are the matters in Charge against us which the Court ought to take Judicial Cognizance of either to acquit us if Clear or to condemn us if Guilty of any such Meeting R. Read the other Mutimus you have a Copy doubtless G.W. We have a Copy of the second Warrant But this is not to be evaded this is the Mittimus this contains the Cause of our Commitment and the Charge that lies against us c. which the Court is bound only to take Cognizance of for we are thereby referred to the Quarter-Sessions R. Read the second Warrant that contains the Cause to wit my tendring you the Oath c. By taking whereof you ought to shew your Allegiance or Obedience to the King G.W. Either the Mittimus is a Legal Mittimus or 't is Illegal If Legal then let 's answer to the Premisses c. If the Oath be insisted upon to evade the Mittimus that will bespeak either want of other matter against us or else that the Mittimus or Commitment is Illegal R. Read the second Warrant c. G.W. We have Exceptions against the second Warrant If I read that the Exceptions ought also to be read Shall read them when I have read the Warrant Court Well you may read both G.W. Now the Court is engaged and concerned to make good the Liberty granted me to read our Exceptions when the Warrant is read The second Warrant read which follows City and County of Norwich WHereas George Whitehead and Thomas Burr were lately sent by my Warrant unto the common Goal for the City and County aforesaid Francis Bacon for being Seditiously assembled with some hundreds of other disloyal Persons against the publick Peace and in contempt of the Laws and Government of this Realm Now for that the said George Whitehead and Thomas Burr are suspitious Persons and Strangers to this City aforesaid and being unwilling to declare that Duty which they and every true and well affected Subject ought to bear by Bond of Allegiance to our Gracious King they did severally refuse to take and pronounce the Oath of Obedience to the King's Majesty duely tendred unto them and after they were severally required to do the same by me These are therefore in his Majesty's Name to will and command you to keep the said George VVhitehead and Thomas Burr in the common Goal for the said City and County without Bail or Mainprise until the next General Quarter-Sessions of the Peace to be holden for the City and County aforesaid and hereof fail not Given under my Hand and Seal the 23d day of March Anno Dom. 1679. To the Keeper of the Common Goal for the City and County of Norwich G.W. I hope the Recorder cannot deny the Copy to be true R. I will vindicate it by Law in any Court in England c. or to that effect G.W. Hear the Exceptions against this Second Warrant I 'le read them deliberately If the Court has any thing to object against any particular that may be read over again after the first reading Court Read them Go on c. The Exceptions against the second Warrant for detention of the Prisoners in the Common Goal without Bail or Mainprise bearing date the 23d day of March Anno Dom. 1679. Exception I. First The Prisoners being committed till Sessions there to answer to the Premisses contained in their Mittimus Therefore the Court ought to take Judicial Cognizance thereof that is of the Charge contained in the said Mittimus for their Tryal and Discharge thereupon by due order of Law and not to suffer the second Warrant to be insisted upon nor the Mittimus to be evaded Exception 2. Secondly Because that after the Command given to the Keeper to keep them in the Common Goal until the next General Quarter-Sessions c. The Lawful Conclusion is wanting viz. Until they shall be delivered by due Course of Law See Cook in the 2d part of his Institutes fol. 52. concerning a Commitment by Lawful Warrant ††Note that the Prisoners foreseeing that the Recorder would insist upon the second Warrant as the Mittimus did therefore prepare this second Exception The Warrant or Mittimus faith he containing a Lawful Cause ought to have a Lawful Conclusion viz. And him safely to keep until he be delivered by Law c. And not until the party committing doth give further Order And this doth evidently appear by the Writs of Habeus Corpus both in the Kings Bench and Common Pleas Exchequer and Chancery Again he saith Secondly The Mittimus ought to be as hath been said till he be delivered by Law Ibid. Cook 2 part Inst fol. 53. Again now as the Mittimus must contain the Cause so the Conclusion must be according to Law viz. The Prisoner safely to keep until he be delivered by due order of Law and not until he that made it shall give other Order or the like Ibid. fol. 591 592. Exception 3. The third Exception is deduced by way of inference from the second Thirdly Therefore the Justice had no Legal Power to give other Order or Warrant which interposeth between his Commitment of the Prisoners and their Delieverance by due course of Law which is mentioned in the Warrant of Commitment but not in this pretended Warrant for detention The Justice who committed the Prisoners had no legal Jurisdiction over them thus by himself to interpose to fasten them They were thrust out of his hands by their Commitment and thereby referred to the