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A44360 Due order of law and justice pleaded against irregular & arbitrary proceedings in the case and late imprisonment of George Whitehead and Thomas Burr in the city and county gaol of Norwich, from the 21st day of the 1st moneth called March, 1679, to the 12th day of the 5th moneth, called July, 1680 being an impartial account of the most material passages and letters to the magistrates relating to the said proceedings with the prisoners above said : wherein the people called Quakers are vindicated and cleared from popery : published for information and caution on the behalf of true Protestants and English-mens birth-rights. Hookes, Ellis, d. 1681. 1680 (1680) Wing H2660; ESTC R7941 74,567 109

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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
the Minister Petty-Constable and Church-Wardens or any two of them shall complain to any Justice of Peace near where the Party dwell● 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 require● to warrant either the first or second tender of the Oath and there●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 en●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 c●ntrary to the Act in that case 22 Car. 2. which intends not Imprisonment Then observe his contradiction