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
on to the proceedings of the Court the next day which was as follows In the Morning early all the said Prisoners that had been Tried the day before were had down to the Court and also Four Women that had been taken at the Bull and Mouth about a Week before who were the first Called and their Indictments read for being at an unlawful and tumultuous Meeting c. as they say and it was demanded of them Guilty or not Guilty to which the Prisoners pleaded after some few words betwixt them and the Court Not Guilty then they were set by Next was Called E. Burroughs and set to the Bar and so after him every man by Name was called and set to the Bar that had been tried the day before and the Clerk of the Court read a Paper which pronounced every man Fined so much some more and some lesse as the pleasure of the Court was when they had read all over each man fined so much and to lye in Prison till payment E. Burroughs spoke to the Court and told them He had not heard his Sentence the Clerk told him over again he was fined one hundred Marks and must lye in Prison till payment To which he Replied again he looked upon this way of passing Sentance not to be just nor yet according to their own Custome for he expected they would have asked him according to their usual manner in that case what he had to say for himself why Judgment should not passe for he had much to say on that kind and bad the Court remember that yesterday he moved them and Orlando Bridgman one of the chief Judges of the Land in arrest of Judgment and did now again move the same and that Judgment might be staid for a time till the next Sessions or if they would not give him time till then then but till the afternoon he desired to arrest Judgment and in that time he would produce divers Statutes contrary to the Form of which these proceedings towards him were He said he was no Lawyer and therefore could not now nominate to them the particular Chapters of the Statutes which he desired to insist upon and therefore desired time till the next Sessions or but till the afternoon Alderman Brown made answer and told him he should have time but the Recorders Deputy Judge of the Court told the Prisoner he could not have longer time they could not admit it To which E. B. replied If they would not give him time in arrest of Judgment then they denied him both Law and Equity for themselves knew it was very usual in many Cases for Persons after Verdict given in to have time allowed them in arrest of Judgment and particularly himself had once at a certain place a false Verdict brought in against him and he did move the Court at that time in arrest of Judgment and it was allowed him by Sergeant Hatten who was then Judge of that Court and he hoped he might have the same now To which the Judge Replied He knew Sergeant Hatten well but his practise was no example to them for do you think said the Judge to the Prisoner that we can give you time for you to take the Indictment and Consult with Lawyers and seek this occasion and the other against it this we will not do said he but if ye have any matter or point of Law now to move we will hear you but we shall give you no longer time To which E. B. again Replied Then he should say it was a surprizal of Judgment and very hard to be so dealt withal not to have time till the afternoon that he might give in his Exceptions against the false Verdict brought in against him and what if he had a mind to Consult with any Lawyers in the Case that knew the particular points of Law better then himself why should he not do this his Fact was not so Criminal nor of so large extent but that the Law would allow him Counsel if he had a mind to use it for if he were Attainted of Treason which his present Case was not comparable too yet in some cases of Treason he thought the Law would allow Counsel and therefore he knew not why such exceptions should be made against him as if he could not be admitted Counsel in his Case if he had a mind to use it Hereabouts the Judge interposed and told him He should not be suffered to over-rule the Court and said he Ye think to over-rule the Court to day again And do not ye see how he flourishes I tell you said he ye must not have time longer but if ye have any matter now to except upon we will hear you or tell us what point ye would insist upon if time were given you To which E. B. Replyed It was but yesterday since he was Tryed since which time he had scarce opportunity throughly to consider and state the Matter for he was with many more of his Friends thrust up into such holes and so thronged together that he believed they would hardly suffer their dogs to lie as they were forced to lodge and therefore he desired a little more and better time to look over the Statute of Magna Charta and other Statutes which he should peruse in the Case and for one thing first of all he should insist upon the Matter and manner of his being Illegally Apprehended and by force and not by due process at Law brought to his Tryal which by the Laws of the Land ought not to be and this is clear from Magna Charta said he which saith No man shall be Imprisoned nor deseized of his free-hold but by the Law of the Land and if any be apprehended and brought to Tryal and not by due process at Law it shall he holden for nothing The Judge made Answer he was mistaken this was not said in Magna Charta though the first part of the words are but the second part of them for substance is in a Statute of Edw. 3. Further the Judge said They could not hear him any longer and they would not give time and he should not be suffered to prate there and seeing said the Judge you are so peremptory and stubborn the Court takes notice of you and thinks good to add upon you this Sentence further Ye are also if ye do pay your hundred Marks to find sufficient sureties for the good behaviour before ye are released and take him away Goaler Then E. B. spoke aloud to the Court and appealed to the Mayor of London by Name and to Alderman Adams and Alderman Brown by names is this fair dealing said he to deny me Law and Equity at the bar and I appeal to you to do me right and to let me have time before Judgement be passed that I may shew you my Reasons grounded upon the Laws of the land against the verdict given in against me and said he Alderman Brown thou hast promised me I shall have longer
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
the Prisoners sick of violent Feavers and distempers by reason of that Exceeding throng which they were forced into so many together in narrow Rooms that they had scarce liberty to lie down one by another which brought many great Inconveniencies upon them and occasioned dangerous sicknesses insomuch that many lay sick at one time and though some recovered yet many died to the number of Eight honest Persons who were two and two together in one week carried to their Graves from New-gate which made the people cry out It was pity that these things should be That honest men for their Conscience sake should thus perish in Prison and no doubt but the knowledge of these things That many were sick and divers died and being publickly seen carried from New-gate two and two together in a week made many stand amazed working dislike in the hearts of people against these proceedings and though the prisoners laid their case of want of prison-room and the dangerous distempers that were occasioned amongst them thereby and that divers died because thereof before the Rulers of the City who had power to redress these grievances yet notwithstanding no notice was taken of it no though above twenty of the prisoners Friends went to the Mayor and Sheriffs of the City to Reason the Case soberly with them of the great straits inconveniences and dangers that the Prisoners their Brethren were liable unto especially in the Summer Season by being so many thronged up together in noysom places and also proferred body for body and that a certain number of them would become prisoners and goe into their places for the relief and comfort of so many of their poor afflicted and sick Brethren that they might not perish in prison according as in The second part of our cry of the Innocent for Justice is more at large published yet no bowels of Mercy not pity could be found nor could the humblest proffers penitrate into their hearts to grant relief to the oppressed but lie in close prison they must whether they would die or live as if they deserved no pity of any Well for some weeks every day some fell sick and in particular that good man of God Richard Hubberthorne unto whom in this place t is not unseasonable to give a Testimony as of duty we are bound The same Person was born in the North part of Lancashire and was of very honest Parents his Father was a Yeoman of the Country and had a good Report of his Neighbours for uprightnesse in all his dealings and Richard was his onely Son who was Inclinable from his youth upwards to Religion and to the best way alwayes minding the best things and following the company of good men and was never known to be addicted to any vice or malignity nor ever followed any evil course of life from his Child-hood but feared the Lord and walked uprightly before him and was faithful according to the Light and knowledge received in all things and his natural disposition and temper was meek and lowly and loved peace among men he was brought up with his Parents in good education according to the custom of the Country and in the time of the late Wars he was disposed to go into the Army and was in Scotland most of the time till the Land was reduced and he had some office in a Regiment and did sometime preach among his sincere and sober Companions that loved him wel according to his knowledge and judgement at that day and he obtained a good Report amongst such as were lovers of Religion And when it pleased the Lord God everlasting to raise us up to be a People in the North parts and through great Tribulations and extream distresses within and without which we passed through were we raised up of the Lord to be a holy and chosen People This same Person was one among the first of us whose heart the Lord touched with the sence of his Power and Kingdom and amongst us he had the mighty operation of the Power of God experienced in his heart Great afflictions and tribulations for many weeks was he exercised in through the dispensation of the Grace and Spirit of Christ Jesus he was in that state and while therein exercised for many dayes a wonder to all that beheld him as one passing out of the body as one under the deep sence of the hand of the Lord under the operation of his Power thus it was with many of us and particularly with him Till such time as the same Power that killed made alive as wounded also healed as brought down also raised up and then being raised up in the holy Spirit of the Lord Jesus Christ he was made a Minister of the Everlasting Gospel to preach Repentance Conversion Salvation and Remission of sins and accordingly went forth in the Name and Power of the Lord Jesus the Saviour of mankind and was a Minister of the glad Tydings of Salvation in many parts of this Land and elswhere to the conversion of many Souls to God for his Ministry was made effectual by the Almighty Power of the Lord to turn many from darknesse to light from the power of Satan to God and there are thousands who can in the Spirit of the Lord bear Testimony to the power and verity of his Ministry in many Countreys where he travelled for he laboured much in divers places and was very diligent and faithful in the work of the Lord and suffered imprisonment divers times and was hardly dealt withal and persecuted in Chester Cambridge and in Norwich prisons and other places and he was found faithful in all his Tryals among his Brethren and alwayes ready to do his service in what he was called unto with a willing mind being truly in body soul and spirit given up to the service of the Gospel of Christ Jesus a dispensation of which was committed unto him that he might serve the Lord in his Generation and though he now hath finished his Testimony in this World yet the remembrance of him lives with us in the Spirit of Jesus and he is accounted among the faithful Sufferers a Martyr for the witnesse of the Truth which ever liveth And for the space of nine years he laboured and travelled in the work of the Gospel aforesaid in most of the Counties of this Nation and was well known for his faithfulnesse among the Churches of Christ He was but little in stature in his outward man and of weak Constitution of body and was slow of speech and often more ready to hear then to speak he made little appearance in the man-hood of Excellency or Authority but was contemptable among men yet he was very wise and knew his season when to speak and when to be silent and when he spoke it was with much discretion and deliberation in weaknesse of words many times yet reached perfectly the matter intended by him and his speech was with Grace and in the fear of God and had Authority in