each side with his Elboes and smote Rose Gogny such a hard blow on her Breast that her Breast was sore several dayes Also Charles Alden the Vintner at the Sign of the Chairing-Gross came calling out Here 's Sons of Whores Here 's five Hundred Sons and Daughters of Whores The Church Doors stand open but they will be Hang'd before they will come there And whilst a Friend was speaking the said Alden said Pull down that Puppy-dogg why suffer you him to stand there Prating Robert Robinson Rose Gogny It plainly then appeared that the said C. Alden and the rest of those Rude and Tumultuous Persons behaved themselves more like Atheists and Bruit Beasts than Persons of any Seriousness Regard to Religion or Christianity Nay let Humanity and Common Civility condemn their Deportment What Ornament such Sons of the Church can be to her let their Priests and all serious Persons judge though the said Alden be accounted a great Singer at the Cathedral i.e. one of their Singing-men how Immoral and Bruitish was his Behaviour How busie was he also with the Recorder against the Prisoners informing muttering and whispering against them greatly inconsistent with so much as the pretence of common Justice to suffer much more to countenance such work Surely the Righteous Judge of all will plead with all such Malicious Agents and such Injustice will not go Unrebuked Here follows a Copy of the Prisoners Letter delivered to the Mayor before the Quarter-Sessions containing a twofold Request c. To the Mayor Justices and Aldermen of the City of Norwich WE whose Names are hereunto subscribed being Prisoners in your City Goal for our Conscience towards God do heartily wish Health Happiness and Prosperity in the Way of Righteousness unto you all and desire of the All-seeing and Heart-searching God that you may be preserved from all Injustice Prejudication and Arbitrary Proceedings both in our Case which we understand is to come before you and in all other Cases proper to your Cognisance as Civil Magistrates wherein you are required to discharge a good Conscience both in the sight of God and Men as that which will greatly tend to your Peace with God and your Reputation among good Men. For as much as we have for some Weeks been detained Prisoners in your City Goal and you have had no hand therein saving that one Person by whom we were committed we are the more encouraged to make this brief Application to you upon a twofold Request on this wise 1st We Request your Moderation and Indifferency so far towards us as that when we are called before you as a Court of Judicature in your Quarter-Sessions to hear and determin Matters that come Judicially before you you will please to hear us with Patience and suffer us to open our Case and to Plead and Argue whether it be in point of Law Conscience Reason or Fact as our Case shall require First Hear before you Determin that we may not be over born nor run down nor any such Precipitation used towards us in Court to divert or prevent us from making our Defence in referance to the Prosecution and Charge we suffer under 2dly We further Request That if upon a deliberate hearing and due enquiry into those Proceedings which we suffer under we make it appear that we are Illegally and Unduely proceeded withal besides and contrary to due process and order of Law that then you will not countenance abet nor confirm such Proceedings against us but stand clear thereof and shew your Dissent for whoever be deputed Judge in your Court as the King's Minister and Mouth of the Court 't is no otherwise so legally intended than as he shall appear to be the Minister and Mouth of the Law and Justice or Lex Loquens and therefore cannot be reasonable or safe nor yet for your Reputation or the Honour of your Court to espouse or confirm any Prosecution or Proceedure that 's Injurious or contrary to due course of Law and so tending to the * * 37 Ed. 3. c. 18. Grief and Dishonour of the King or Destruction of any of his peaceable People Now we hope you 'l not deny but assent to these two fore-going Propositions as Just and Reasonable And therefore that we shall not need now to urge upon you but only Re-mind you of these material Points of Law following 1 st It is the Kings Will in point of Law That all his Justices Sheriffs Mayors other his Ministers which under him have the Laws of the Land to guide shall allow the great Charter of the Liberties of England pleaded in all its Points 25 Ed. 1. c. 1. Cook Inst 2 part sol 527. 2 dly That if any Judgment given or any thing done contrary to the Points of the said Charter by the Justices or any other the Kings Ministers that hold Plea before them against the Points of the Charters it shall be undone redressed and holden for nought 25 Ed. 1. c. 2. 5 Ed. 3.9.28 Ed. 3.3 c. 3 dly The Court ought to be of Counsel with the Prisoner to see that nothing be urged against him contrary to Law and Right Cook Inst 3 part fol. 29. 4 thly That the Court ought to be so far from over-awing or forcibly diverting the Prisoner from his Plea or Answer That the Judge ought to Exhort the Prisoner to Answer without fear and that Justice shall be duely administred unto him Cook Inst 2 part fol. 316. 5 thly That any learned man that is present may inform the Court for the Benefit of the Prisoner or any thing that may make the Proceedings Erronious As also even in Cases highly Criminal it is lawful for any man that is in the Court to inform the Court lest the Court shoulderr and the Prisoner be Unjustly proceeded with See Cook 3 part fol. 137. Cook Inst 3 part fol. 29. Now Friends these things are recommended and left to your serious Considerations we not designing hereby as you may easily understand to enter into the Merits or Justification of our Cause but fairly to introduce the Right and Legal Cognisance thereof in order to have Justice and Right done us as ENGLISH MEN and as we are your Well-wishers George Whitehead Thomas Burr â—orwich-Goaâ— the 17th of the 2d Moneth 1680. We desire this may be Communicated An Account of the substance or principal Parts of the Proceedure at the Quarter-Sessions at Norwich holden for the City and County of the same the 18th Day of the Moneth called April 1680. In the Case of George Whitehead and Thomas Burr Prisoners for the Testimony of their Conscience Francis Bacon the late Recorder of Norwich being Prosecutor Accuser and Judge But the Mayor and other Justices more indifferent and Judicious towards the Prisoners Collected and compared by several Hands and digested into as much Order as the Capacity the Sufferers and the Circumstances of Proceedings would admit THe Quarter-Sessions for the City and County of Norwich
begun the 19th Day of April so called 1680. Adjourned until the 26th and continued the 27th and 28th of the same And again Adjourned until the 17th of May 1680. The aforesaid Prisoners G.W. and T.B. were called into Court the 27th of April in the Year above said nothing said to them then by the Court but they returned back immediately to Prison upon pretence of a mistake about their being called forth At the Quarter Sessions for the City and County of Norwich the 28th Day of April so called 1680. 1. THe Prisoners were brought to the Bar. 2. Their Hats ordered to be taken off 3. Their Hats taken off 4. G.W. standing up to the Bar begun thus viz. The Law of England requires two things of the Court with respect to the Prisoners viz. 1 st The patience of the Court And 2 dly The Indifferency of the Court towards the Prisoners That their Case may be patiently heard and considered without Prejudication before any Judgment pass against them This we expect from the Court. We have been five Weeks in Prison 'T is meet the Court should know for what Pray let our Mittimus be produced and read in Court that it may be understood what Charge we suffer under Our Suffering is two fold 1 st Above five Weeks confinement 2 dly The Charge that 's against us in the Mittimus We request that the Mittimus may be produced and read in Court Recorder There 's no need of your Mittimus to be read here I 'le give Account of the Cause I 'le inform the Court. These Persons had been two ‖ An Untruth Moneths from home and had been up and down the Country in Suffolk * Not true of T.B. 't was only G.W. at a Burial c. And then they came hither and here they gathered a company together of about two Hundred and the Officers went from me to dissipate them but could not whereupon I sent the Sheriff and he took them away and put them in Prison †The Prisoners had not opportunity to speak to all this Account And then they were brought before me and after Conviction made I proffered them That if they would pay their Fines I would not commit them to Prison but when they would not I tendred the Oath of Allegiance to them And after they would not take it I sent them to Goal as I think I very well might G.W. We are English-men and have right to Travel in any part of the Nation c. T.B. I am a Person that have been concerned in Trading in Corn as well in this County as in others and by the Law of England a Man may Travel from place to place about his Concerns and ought not to be molested while he walks peaceably c. R. Had not you better been turning your Molt at home then to come here to Preach The Apostle Paul exhorts to follow the Vocation whereunto ye are called The Scripture says God added to the Church such as should be saved But ye draw from the Church Prisoners Note The Prisoner heard not these Words but some others affirmed they did However had the Prisoner heard this Reflection before upon a fair debate upon the Point he might have answered the Recorder That to be a Trades-man or Lay-men so called is not inconsistant with being a Preacher of the Gospel When God added to the Church it was through Lay-mens preaching such as Fisher-men Handicrafts-men and such like 'T is Popery and the Popish Spirit that would hinder Lay-men and labouring men being indued with the holy Spirit from being Preachers of the Gospel and not the Spirit of Moses who wisht that all the Lords People were Prophets nor the Spirit of the holy Prophets Christ or his Apostles who did not go about to exclude Lay-men or Mechanicks so called from preaching the Gospel for the best Preachers were generally such in the Prophets and Primitive Christians dayes R. There is a Law And the Church of England will never be at quiet till some of you be Hanged by that Law or till such fellows as you are Hanged G.W. The Court may see the frame of the Recorders Spirit towards us and that he stands not as a Person Indifferent but a party against us Thou oughtest not to inveigh against the Prisoners nor threaten us That stands not with the indifferency of the Court nor yet thy determining or resolving afore-hand against us as thou hast done Judges ought not to declare their Opinions afore-hand against the Prisoner Hussey the Chief Justice would not do it to the King in the Case of Humphry Stafford the Arch Traytor but begged of the King He would not desire him to declare his Opinion afore-hand that the Prisoner might come Judicially before him and have Justice done him See Cook 3 part Inst fol. 29. And the King accepted his Request in the Case Interrupted R. What King 's Reign was that in G.W. In King Henry the sevenths R. I perceive you have read or are read G.W. Seeing that none of the Court have as yet had any Hand against us except the Recorder we may charitably hope that the Court will stand indifferent towards us and let us have a fair hearing before any Determination For as the Laws of our Nation require a due process a due course of proceeding before men be Sentenced or Condemned So there ought to be a due hearing As where a process or proceeding consists of several parts each part ought to be enquired into and answered in due order without confounding one thing with another or putting that first which in course is last Let us have a fair hearing and Tryal Let 's be tryed before we be Hanged Let 's not be Hanged first and then Tryed 'T will be too late to try us after we are Hanged c. R. You were sent to Prison for refusing the Oath of Allegiance G.W. That 's a mistake We were sent to Prison for being at a Meeting charged to be against the Peace which is the Premisses in our Mittimus to which we are here to Answer And therefore that all may know what is laid to our Charge we desire our Mittimus may be read that so if there be any Persons that will undertake to prove the matter in Charge let us see them and have liberty to answer the Premisses contained in the Mittimus R. I will shew you that when a Person is committed to Prison he may have several Actions laid upon him if new Charges be brought against him c. Prisoner I grant that But that 's not our case for we presume the Recorder had no new matter brought against us after he committed us to Prison and therefore could not lay any new charge upon us T.B. There could not be any new Charge against us to render us suspitious of being Jesuits or Papists but instead of that we have Certificates to take off any Jealousies of that kind that might be in any concerning us
which are subscribed by Credible Persons of our Neighbourhooâ—d G.W. The Premisses which we are to answer to is matter of charge contained in the Mittimus Let it be read in Court we request you R. It shall not I 'le give account These Persons were taken at an unlawful Meeting There 's also a second Mittimus which signifies my requiring them to take the Oath of Obedience and their Refusal c. G.W. The second is a Warrant to detain us without Baile or Mainprize till Sessions 'T is not the Mittimus 't is of another Date c. R. 'T is the Mittimus and you are to Answer to it whether you will take the Oath of Allegiance to the King These Persons have refused to shew their Obedience to the King c. T.B. Pray forbear to accuse us We have shewed our Obedience by our peaceable Conversations c. G.W. The second Warrant is not the Mittimus The Mittimus is that by which we were sent to Prison bearing date the 21st day of March The second Warrant bears date the 23d day of March. R. The second is the Mittimus you are to Answer to it Wee 'l put the Oath to you G.W. The second is not the Mittimus we were not sent to Prison by it We were sent to Prison the 21st of March. The second Warrant bears date the 23d of March We were in Prison near two dayes before the date of the last Warrant There needed not be a Mittimus to send us to Goal when we were sent by one already so long before I pray let our Mittimus be read in Court R. Put the Oath to them that 's in the second Mittimus c. G.W. I beg of this Court for God's sake and the King's sake to be heard fairly without thus being run upon For God's sake because he is a God of Justice and Truth And for the King's sake because the King's will towards us as Subjects is what the Law and Justice wills As his Will is the will of the Law he wills that none of his Subjects be injured or unduly prosecuted contrary to Law I appeal to the Mayor as chief Magistrate of this City and the rest of the Justices here present Whether ye ought not to see us have that Right done us as to have our Mittimus produced and read in Court that you may understand the cause of our Commitment We were not committed for refusing the Oath We intreat that the Court may hear our Mittimus that we may not have other Premisses put upon us than what 's contained therein R. It shall not be read there 's no need of that I am present that committed you G.W. I appeal to the Mayor and the rest of the Justices who are more indifferent towards us for Justice in this case viz. That we may have our Mittimus read and answer to the Premisses contained in it and not thus be run upon and diverted with that which is none of the Premisses c. Mayor You have appealed to me Truly we are Trades-men and no Lawyers We leave matters of Law to the Recorder He knows the Law and we must acquiess in his Judgment T.B. Thou understandest we ought to have our Mittimus read and be heard And thou art the chief Magistrate in this Court c. G.W. You all have a Conscience towards God and an equal and just Law therein And you are under a severe Obligation to wit your Oath to see Justice and Right done us We appeal to the Mayor and Justices here for Justice in relation to our Mittimus that it may not be thus evaded We are at this Sessions to answer to the Premisses or matter of charge therein contained you are concerned in Conscience to do us â—ight herein The Honour of this Court is also concerned not to see us precipitated noâ— run down upon other Premisses The Mittimus was given under the Hand and Seal of your Recorder his Reputation and Honour is also concern'd c. R. My Honour concern'd Wherein G.W. Thy Reputation and Honour is concerned in that thou art bound to stand by our Mittimus 't is under thy Hand and Seal Now thou goest about to evade it by imposing other Premisses upon us or to the same effect R. They sent their Mittimus to the Attorney General and sollicited him for advice to know whether they were according to Law or not And moved for a Habeas Corpus But it would not be granted G.W. We neither sent to the Attorney General nor have we yet moved for a Habeas Corpus R. The second Mittimus or Warrant is about their refusing the Oath of Allegiance as for the first I did not make it by Book ‖ This the Prisoners did not hear but others nearer G.W. 'T is not a reasonable thing to bring a Prisoner and not withal to signifie the Crimes laid against him It was contrary to the very Law of the Romans Interrupted being about to add as Festus said in the case of Paul It seem'd to me a thing unreasonable to send a Prisoner and not withal to signifie the Crimes laid against him Acts 25.16,27 which alwayes ought to be in Warrants of Commitment R. What tell you us of the Law of the Romans we have Laws of our own to act by c. or to that effect G.W. 'T is according to the Law of Reason and Nations that the Crimes and Offences should be known for which Prisoners are committed and detained in Prison else why should they suffer R. The Court must tender you the Oath G.W. Wherefore then were we committed and detained in Prison above these five Weeks If we be Offenders let 's know our Offence for which we were committed If not do not go about to ensnare us do not seek occasion against us 'T is enough to punish us if found Guilty of what charged against us in our Mittimus We entreat the Mayor and Court to do us right in this matter that our Mittimus may be read Mayor and some others Well you shall have it read G.W. Keeper Where 's our Mittimus produce it that it may be read as the Mayor and other Justice here present have engaged R. Tender them the Oath Put the Oath to them If you 'l take it that shall serve c. If not you incur a Praemunire c. A hiddious noise in the Court among some under Clerks and Officers about the Oath viz. Some under Clerks c. What say you Answer Will you take the Oath Will you Kiss the Book Clerk reads I Thomas Whitehead do truly and sincerely acknowledge profess testifie and declare in my Conscience c. Here an Interruption upon his mistake of Thomas for George G.W. The Oath is none of the Premisses contained in our Mittimus which we are to Answer to at this Sessions and to be tryed upon T.B. Our all is at stake We perceive the Recorder is determined concerning us We must have liberty to speak We are
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
Free-born English Men. This on the Interruption R. We have power here to tender you the Oath without taking notice of any other Cause G.W. 'T is Preposterous to run us upon the Oath in the first place we being not committed for that but for other Causes R. You affront the Court. Is that a fit Word to give the Court to charge the Court with Preposterous proceedings or to that effect G.W. I do not charge the Court I do distinguish between the Recorder in this point and the Court He seeks to run us upon that first which in course is last according to his own Mittimus and Warrant And is not that Preposterous Let our Mittimus be read and that will shew we were not committed upon the Oath G.W. We ought to have due process or proceeding in due course of Law therefore the Court should know how we were first Arrested and turned into Goal by the Sheriff without Examination Mittimus or Warrant and how afterward had out and committed and what the Mittimus is What are the Premisses contained in it that we are to answer unto The Law of England is tender of mens Liberties Properties Estates and Lives all which are concerned in our Imprisonment Lex Anglia ' is said to be Lex Misericordiae i.e. the Law of England is a Law of Mercy one Reason whereof is that the Innocent may not be worn or wasted through long Imprisonment but be brought forth speedily to his Tryal according to Magna Charta c. R. Look what an Argument or Consequence you would draw from hence The Law of England is a Law of Mercy 't is Lex Misericordiae therefore Thieves or Malefactors c. must not be brought to condign Punishment c. or to that effect G.W. That 's none of my Consequence mine is the same that Judge Cook doth instance wherein the Law of England is Lex Misericordiae in that 't is tender of mens Liberties and prescribes a due course of Proceedure Interrupted as it may be applyed to our Case Either we are Innocent or Nocent if Innocent we ought to be heard and not delayed in Prison if Nocent or Criminal we ought to have due and orderly proceeding according to the Law of the Land that our Offence may the more plainly appear that others may take warning thereby and not incur the like Penalty or Suffering However let 's have fair dealing let 's not be unduely run upon diverted from our Plea and our Mouthes stopt so that the Court and People here cannot know what we suffer for No Free-man shall be taken or imprisoned or disseized of his Freehold or otherwise destroyed c. but by due process and order of Law This Magna Charta enjoyns where in the 29th Chapter 't is said No Free-man shall be taken or imprisoned c. but by the Law of the Land that is by due order of Law by due process according to Law The Law of England requires due process or proceeding from the very first Arrest taking and imprisoning to the very end and execution of the same Therefore the first Arrest Imprisoning and Committing us ought to be known and understood whether it was in due Manner and course of Law Yea or Nay Let us have our Mittimus read we expect it 't is granted and promised us by the Mayor and others indifferent A little respit in expectation of the Mittimus But the a R. Recorder seemed greatly offended at the Prisoners urging this and at the Mayor and Justices assenting to it G.W. Seeing that the Law is tender of English mens Liberties as that no Freeman shall be taken or imprisoned c. without due proceeding in Law c. 'T is but meet and reasonable that the Court and People here should understand what capacity and repute we are under among our Neighbours that is whether as Freemen of England and of any Repute among our Neighbours or as Bond-slaves Rogues or Vagrants Renegado's c. Hear what our Neighbours say of us we desire their Certificates may be read R. What have we to do with your Certificates wiâ—l any Swear to them that they are true ones G.W. They are real Certificates pray let them be read here they are R. We do not know but that you might make them your selves in Prison G.W. They are no Fictions Pray read them or let them be read they are from Persons of Credit and Repute as Common-Council men Deputy Constables Church-Wardens and others R. They shall not be read G.W. We beg they may be read Look upon this Certificate here 's the Persons own Different Hands to it it may tend to inform the Court and to remove Suspition and Jealousies concerning us But this would not be granted the Prisoners G.W. Seeing our Certificates may not be read nor suffered to be read which is but hard measure now let our Mittimus be produced several expecting the Keeper had sent for it Pray let us have our Mittimus produced and read R. We have it not the Goaler has it G.W. Where is it Keeper produce it thou hadst it R. to the Prisoner No doubt you have a Copy G.W. Yes we have May I read it I crave Liberty of the Court to read it that the Court may understand what we are committed for and to answer to that this Court is to take Judicial Cognizance of c. Court The Justices asked the Question from one to another to have it read generally assenting thereunto as being of the Mind it ought to be read Justice Briggs I am of the Mind it should be read What say you Mr. Bendich J. Bendich Yes truly I am of the mind it should be read J. Briggs Pray speak to Mr. Mayor which was done Mayor to the Recorder Sir the Justices are agreed it should be read R. Turning himself towards them as one greatly offended that the Mittimus should be read G.W. It concerns the Court to let us have our Mittimus read I am ready to read the Copy seeing it may not be otherwise produced and read Shall I read We expect that Justice from the Court that it should be read R. Let them read it then I am not ashamed of it then read the other also for you have them both Court You may read it G.W. Now we have the leave of the Court I hope you 'l keep to it Observe it 't is a true Copy The Mittimus read which followeth The Mittimus viz. City and County of Norwich WHereas George Whitehead of the Parish of St Buttolph in London Grocer and Thomas Burr of Ware in the County of Hartford Maulster have this day assembled together with several other Persons in Disturbance of the publick Peace and against the Laws of this Realm and being required to find Sureties for their respective appearance at the next General-Sessions of the Peace Fra. Bacon to be holden for the said City and County to answer the Premisses which they refused so to do These are
'le prove that he is no competent Judge in our Case if I may be heard Interruption Are we discharged of the two Warrants Pray let 's have fair and plain Dealing Do not thus force upon us 't is unfair and undue Proceeding Let 's be discharged of the two Warrants fiâ—st before we be put upon an Answer We ought not to be put to our Answer but upon due process c. Some of the Court You are discharged from those two Mittimusses Clerk read their Discharge The Clerk reads what the Recorder had caused him to enter into the Book to this purpose Clerk George VVhitehead and Thomas Burr are discharged of the Matters contained in their two Mittimusses And the Oath of Allegiance and the Testament to Swear in open Court at this present Sessions was severally tendred to them and the said George VVhitehead and Thomas Burr having severally refused to take the said Oath of Allegiance it is therefore ordered That the said George Whitehead and Thomas Burr be committed to the Common Goal of the said City there to remain without Bailor Mainprise until the next Quarter-Sessions c. or to the same effect The Copy of Order being more fully transcribed hereafter according to the Goalers Copy G.W. The latter part is not true we have not yet refused the Oath we were not duely nor regularly brought upon that point as to give a positive Answer because of the other precedent Charges which we were to answer to We have yet matter of Plea about the Tender of the Oath de Novo in Court We request further time to be heard upon an Adjournment before we give our positive Answer We desire to know upon what Law or Statute 't is tendred No Answer was given to this Question R. You have stronger Lungs than I. I understand you had a Feast last Night c. Adjourn the Court. Take them away Goaler G.W. Prisoner Pray let 's have more time to consider and speak to this point I entreat that I may have leave to read the Clause in the Statute that concerns the tender of the Oath Note These Endeavours of the Prisoners to be heard after the pretended Order was entred was because the Prisoners did not believe that the Justices or greater Number of them did concur with the Recorders proceeding against them but that they had more both of Moderation and Justice in them and that he carried things on too much over their Heads and all to run down and ensnare the Prisoners to Oppress them and continue them under Suffering Officers The Court Adjourned Prisoner G.W. Held by the Bar pressing to be further heard after the Adjournment when the Court met again and for the Statute to be read about the Oath Neither whereof would be granted the Prisoners but two of the Keepers pulled the Prisoner away Prisoner Take notice that we have not yet refused the Oath being not duely nor regularly brought upon that point but we have owned the Declaration of Allegiance contained in it * These last words are since added the Prisoner being hurried away that he could not then speak them out and do still freely assent to it in Opposâ—tion to and Abhorrance of all those Treasonable Practices Positions and Principles abjured and renounced by that Oath though we are Conscientiously afraid to Sweat it only with respect to Christ Prohibition in the case of Swearing Note That on the 3 d day of the Moneth called May 1680. being about five dayes after the Prisoners were thâ—… proceeded against in Court the Recorder Francis Bacon was voted out of Place by the Common-Council c. Also note That divers of the said Recorders Reflections and hard Speeches against the Prisoners are purposely emitted in the foregoing Account for brevity sake and with respect to the moderate Reader by whom we would not be thought to Over charge any Person though he was an Adversary therefore we have in some particulars been more sparing than we might have been Here follows a Copy of the Commitment from the said Sessions The City of Norwich and County of the same at the Sessions holden the 19th day of April 1680. GEorge Whitehead and Thomas Burr are discharged of the Matters contained in their Mittimus and Warrant And the Oath of Allegiance and the Testament to Swear upon in open Court by order of his Majesties Justices of Peace at this present Sessions was tendred severally to them and the said George Whitehead and Thomas Burr having severally refused to take the said Oath of Allegiance It is therefore ordered That the said George Whitehead and Thomas Burr be committed to the common Prison of the said City there to remain without Bail or Mainprise until the next Quarter-Sessions to be holden for the City according to the Law This is a true Copy by me Thomas Gaywood Goaler Per Curiam Corie Here follows a Copy of the Prisoners Certificates which the Recorder Francis Bacon would not permit to be read in Court THese are to Certifie all whom it may concern That George Whitehead of the Parish of St Buttolph Bishops-Gate London hath lived in the same Parish for about Ten Years last past in good Repute and is esteemed a man of a Competent Estate and hath fined for all Offices in the Parish save Church-Warden and hath demeaned himself Peaceably in his Conversation and he hath never been accounted nor reputed to be Jesuit or Papist nor any way Popishly affected All which we Certifie under our Hands John Freeman Thomas Fyge Common-Council-men John Russen Deputy Gilbert East John Osburu Church-Wardens John Sumner Constable Charles Bathurst Thomas Dawson Nicholas Harding London April the 22d day 1680. THese are to Certifie any Person or Persons whom it may concern That Thomas Burr of Ware in the County of Hartford Maulster hath lived and been a Trader in Malt for about Fourteen Years past and is a man whom we judge of a good competent Estate and of good Credit and Reputation among his Neighbours in this place and hath never been accounted a Jesuit or Papist All which we Certifie under our Hands Giles Roe Henry Hart Church-Wardens John Lark William Moakes Constables John Perrot Henry Peach Thomas Johnson Richard Dickinson Rivers Dickinson Edmund Peast Isaas Hadsley Ware in Hartfordshire this 14th day of April 1680. A Copy of the next Letter after the foregoing Proceeding in Court delivered to the Mayor c. Friends The Mayor Justices c. Aldermen of this City Norwich WE do acknowledge and kindly resent that Indifferency and Moderation towards us which we beheld among you when before you in your Court of Sessions as also the Justice you did us in making way for the reading our Mittimus our Exceptions our Declaration against Popery and the fixing of our discharge in Court from the matters contained in our Mittimus and Warrant whereby we are the more encouraged to make this one small Request to you which is That you will please but to afford us
the Liberty to come before you in your Council-Chamber though it be with a Keeper that we may shew you one material Point of Law in the Statute Book relating to this De novo or New tender of the Oath in your Quarter-Sessions which we now suffer under it being the same Point that we were carâ—est to have shown you out of the Statute Book but were foreinly prevented In granting us this small Request you may happily be capable of doing your selves and us more Justice and Right than you may at present be aware of 'T is not too late to reverse an Error and embrace Truth when made appear in any Case not will any sincer Mind soon the Discovery of either 'T is in Real Love and Good Will to you this Proposition by way of Request is made for your own sakes as well as ours We design no Tediousness to you 〈◊〉 Case is now contract into a arrow Compass What we have to shew you is both very brief and caste to understand 't is directly â—…tuâ—e-Law Out Confinement before Sessions was but One Mans Act but now others of you are concerned Howbeit we may Reansonably as well as Charitably think and believe that both the forcible tender of the Oath whilst not actually discharged and freed from our Imprisonment and the Conclusion against us for our detention were rather the hasty and indiscreet Acts of one Person carried on over your Hands than of the whole Court or Major part thereof and hope that as you calmly come in Gods sight to the Righteous Test of Conscience and Truth and upon better deliberation consult the Law in our Case 't will so appear to your Understandings We are yet willing Charitably to think and hope the best concerning you in this weighty Concern of our Liberties Estates Families and consequently our Lives which are exposed to Jeopardy and Ruin through our present Suffering among you Nevertheless our Case is not desperate in the Eye of the Law They who are appointed Ministers of equal Law and Justice ought to understand both before they pass Judgment or inflict Punishment As Michael Dalton puts the Commissioners of the Peace in mind how that justice may be perverted many wayes if they shall not Arm themselves with the Fear of God the Love of Truth and Justice and with the Authority and Knowledge of the Laws of this Realm c. Among which Causes of Pervertion he mentions these viz. I. FEAR When fearing the Power or Countenance of another they do not Justice quoting Deut. 1.17 II. PERTURBATION of Mind as Anger or such like Passion quoting James 1.20 III. IGNORANCE or Want of True Vnderstanding what is to be done Ignorantia mater erroris IV. PRICIPITATION or too much Rashness as when they proceed hastily without due Examination and Consideration of the Fact and all material Circumstances c. Thus far M.D. We design no Personal Reflection but only tender Information and Caution in these Passages The thing we aim at is but the leave of a few Minutes before you to shew you the Point of Law mentioned which we forbear to relate in Writing to you as not being so proper or seasonable for us to do at present considering the Cercumstances which we are under We are Your Real Friends and Well-wishers George Whitehead Thomas Burr Norwich-Prison the 8th of the 3 Mon. called May 1680. POSTSCRIPT THis Provision we would further add That if so be our Proposal of coming before you in your Council-Chamer may not be accepted or be not thought seizable we then desire you would please to transmit our Request to your Quarter-Sessions yet in beeing upon Adjournment that we may have the Liberty at your next meeting in your Court of Sessions briefly to offer what we have to Plead in point of Law to your serious and more deliberate considerations about the late tender of the Oath de Novo according as we desired farther time for the same purpose when last in Sessions Here follows the substance of a farther Application made by the Prisoners aforesaid to the Mayor Recorder Justices and Aldermen of the City of Norwich delivered to them the 17th day of the 3d Moneth 1680. being the last day of the Quarter-Sessions THe first part relates to the Mediation of certain Persons of Note and Eminency ††Whose Names are not thought meet to insert in this place Some Magistrates of Norwich understood who they were on the Prisoners behalf and particularly by a Letter from London from a Person of Quality on some Application made by some of their Friends there unto which the Prisoners refer the Magistrates in these words viz. We therefore request that you would please to call for the said Letter and know the Contents thereof that if such Mediation may take effect with you for our Enlargment we may not put you nor our selves to trouble upon any further Motion Otherwise if you be not pleased to accept thereof so as to grant us our Enlargment we have another Proposition to make on this wise viz. Whereas we the Prisoners whose Names are hereunto subscribed do find our selves oppressed and grieved not only by the Illegal Proceedings as we conceive of the late Recorder in our Commitment and detention in Prison by two Erronious Warrants which were reverst in Court but also by his late Commitment from Sessions which not only we do conceive to be illegal and contrary to the Form and Order of Law prescribed in the Statutes but also we have the Advice and Judgment of able Counsel in the Case averring This last Commitment Not Good BUT AGAINST LAW c. Upon which Premisses if you please not to allow us Remedy on the Mediation aforesaid we do in Humility request That you will please to call us into Court before this Sessions be ended and grant us the Liberty but briefly to offer our Exception in point of Law unto your serious and deliberate Considerations in order to afford us so much Relief and Right as may either by apparent Law Equity or good Conscience be allowed us Your Friends and Prisoners George Whitehead Thomas Burr Dated Norwich-Goal the 12th of the 3d Moneth 1680. ON the aforesaid 17th day of the 3d Moneth 1680. our Friends Mary Duncon and Mary de France of Norwich attended the Court of Mayor and Justices in their Council-Chamber and delivered the aforesaid Application and Certificates to them where they were read as the Prisoners were informed After the Mayor and Justices came down into the Hall our Friends abovesaid attended the Court of Sessions and moved for the Liberty of the Prisoners as some of the Justices had before directed To which others of them said That could not be for they were committed by Order of Sessions which the Steward being then Judge of the Court in the Recorders absence caused to be read Mary Duncon then requested the Prisoners might be called into Court and heard the new Recorder having promised her as she affirmed
immediately after she came from him That they should be called into Court and that if it appeared they were committed contrary to Law they should be Discharged But he being then absent they were not called into Court Samuel Boulton of London being present got leave of the Court upon his request to tell them That he did suppose it was contrary to Law to make the First Tender of the Oath in Court and that 't was done on purpose to Ensnare the Prisoners Whereupon the Steward called to bring the Statute-Book to see whether it was so or not but in the interim after a little Consultation the Court was dismist on a suddain before the Book came So the Prisoners were detained until the next Quarter-Sessions Whereof an Account is hereafter given as to their Discharge Here follow the Copies of certain Letters of Importance from the said Prisoners which were sent and delivered to the Magistrates of the City of Norwich after the aforesaid Quarter-Sessions To the New Recorder FRIEND VVE having met with a Disappointment by reason of thy absence from Sessionâ— hath occasioned these few Lines whereby we acquaint thee That we apprehending our selves wrongfully Imprisoned and Detained by the means of the late Recorder having also Advice of Counsel concurring with our Apprehensions in the Case did expect according to thy Expressions to our Friend Mary Duncon to have been called into the Court of Sessions this day week Some of our Friends having had encouragment by several of the Magistrates to request our Liberty in Court they accordingly attended and moved on our behalf but our being called was opposed by the Clerk Afterwards we sent to the Steward about it who exprest himself willing to do us any good he could but seemed to blame us that we had not sent to thee about it and advised us so to do he being unwilling to act without thy Concurrence wherefore we have sent this Bearer on purpose and Request That thou wouldst please to signifie thy Mind to the Steward Whether or no our Suffering Case may be taken any further Notice of among you in order to our Relief We are hardly dealt by and think we should not be delayed nor slighted under a wrongfull Imprisonment We hope our Case will be better inspected than as yet it has been The Magistrates willingness here for our Relief now depends upon thy Counsel We desire to know your Minds in it with as much Expedition as conveniently may be We rest Thy Friends and Well-wishers George Whitehead Thomas Burr Norwich-Prison the 24th of the 3d Moneth 1680. This was delivered to the New Recorder of Norwich at his Country House near North-walson by John Fedemand and Thomas Haward of Norwich To the Recorder and Steward of Norwich FRIENDS SEeing we have made divers motions to be heard by the Magistrates of this City before the Sessions was ended concerning our last Commitment but were prevented although we have intimated our Apprehensions of our wrongful Imprisonment and Detention by the means of the late Recorder's severity against us And you being the Persons upon whose Advice the Magistrates of this City have Dependance We do entreat you tenderly to consider us and our suffering Condition so far as to admit us but a little gentle Discourse with you or either of you though it be before any of the Magistrates of this City whom you shall think fit in order to give you an Understanding of our Case whether any Relief thereby may be afforded us or not we leave that but hope you may be justly Instâ—…mental for our Relief 'T will be no disparagement to you to be sure we being opprest and restrained thus far from our Families c. as we think at least contrary both to equal Law and good Conscience And we are not willing to lie under any Mâ—stâ—ke or Prejudice against any Person whatsoever No though it was one that hath dealt most Prejudicially with us we are sure we mean well However pray now take a little opportunity to consider our suffering Case so as we may not be slighted in this Condition We can assure you That the late Recorder's Proceedings against us are not well resented by certain Persons of Quality and Power and it will be no honour to this City to detain us under this Restraint upon the Foundation that he has prejudicially laid against us but here we must at present be spaâ—ing time may possibly evince more of that We remain Your Friends George Whitehead Thomas Burr Prisoners for our Conscience towards God Norwich-Goal the 29th of the 3d Mon. 1680. AFter these two last Letters were sent to the Recorder upon the Prisoners request for a little Discourse with him and the Steward about their Case they were called over into the Council-Chamber and the Keeper with them before him and the Steward and Thomas Corys c. and there admitted to open their Case and to enter into some Discourse about the Proceedings against them They did not seem to vindicate the other Recorders Pâ—oceedings only some little Controversie was about the late tender of the Oath de Novo in Court for which the Recorder insisted on the Words Or any Other Person c. 3 Jac. c. 4. which are farther opened hereafter according to what the Prisoners then alledged However the Prisoners kindly acknowledged their Civility in giving them that Opportunity of Discourse c. A few Lines to the Mayor Court of Aldermen and Justices on some other Considerations more particular FRIENDS VVE being enjured and hurt in several respects by this our Confinement for above this three Moneths past by means of the late Recorders Prejudicial and undue Proceedings agaâ—nst us both before and at your last Quarter-Sessions together with your then Passiveness therein * * That was about the Oath and his last Commitment from Sessions and all this under a wrong Suspition or Pretence of being Papists or Popish Recusants secretly suggested against us which being intâ—mâ—ted to some Persons of Quality Credit at London who have better knowledge of us by them the Earl of Yarmouth being moved on our behalf he was pleased to mediate for us by Letters to be communicated to some of the Magistrates in this City in which we understand he hath lately signified what Testimony he hath of our being NO PAPISTS and therefore desires That you would shew us all the favour the Law will allow us or to the same effect as we have been informed which cannot reasonably intend The Rigour of the Law muchless to be detained in Prison contrary to Law as we still conceive we are We therefore entreat you First to consider what favour the Law allows us as No Papists nor Persons so reputed as indeed we are altogether averse to Popery Secondly As Persons injuriously Imprisoned and detained under a wrong Suspition of what we really are not We Request our Liberties which Request we think our selves both obliged in Conscience and warranted by Law to make
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
in his Warrant 5 thly The Warrant of our Commitment till the Quarter-Sessions granted us Bailable 6 thly But several dayes after he interposed with another Warrant which he sent to the Goaler to detain us without Bail or Mainprize till Sessions when he had no new matter against us 7 thly By his first Warrant we were referred to the Quarter Sessions to Answer to the Premisses contained therein and to be delivered by due order of Law 8 thly By his second Warrant he put other Premisses upon us to answer to at Sessions about his alone requiring the Oath of Allegiance of us which he could not warrant by the Law 9 thly At Sessions he would not suffer our Mittimus to be read till over-powered by the rest of the Justices 10 thly He appeared a Party and open Adversay against us telling us there is a Law to Hang such Fellows c. 11 thly He would not suffer our Certificates to be read in Court as we earnestly requested being from certain Officers of Note and other Credible Perâ—…s of our Neighbourhood to remove the unjust Aspersion and Suspition of our being Jesuits or Papists prejudicially insinuated against us * * By the Informers and himself 12 thly He would not suffer the Law to be read in Court as we requested upon which he then required the Oath de Novo We must confess That as to the late Commitment we have not understood that you have undertaken to justifie it We are perswaded you are more ingenious and wiser men Only for the tender of the Oath de Novo in Sessions by Francis Bacon the words Or any other Person whatsoever 3 Jac. 4. were alledged although we cannot reasonably understand that any other Person whatsoever in Court should be more severely dealt withal then the Popish Recusant under prosecution so as to be run to a Praemunire for once refusal upon a surprizal in Court when as the method prescribed for the Popish Recusant is a first Tender out of Court and a Commitment for refusal and a second in Court and refusal again before Praemunire see what Council further saith in the case viz. touching the Sessions Justices tendring the Oath as it follows that of a first tendring I did mean and did intend a second tendring and that must be to a Person under such Circumstances as in my latter Paper and in this Letter c. according to that of 7 Jac. 4. I know the Words or any other Person in 3 Jac. 4. have in these late times been Construed generally but certainly it is not within the meaning of that Law which is truly and only extensive to Popish Recusants About the Offenders incurring a Praemunire that must be a tender of the Oath at the Sessions according to that Law which must be a second Tender as above i.e. after a first tender of the Oath out of Court upon which the party refusing is committed to the common Goal according to his other Paper on the 3 Jac. 4. and 7 Jac. 6. And M. Dalton plainly expresseth the same sense of the Law in the Case under the Title Recusants Dalt Inst pac fol. 94 95. But Friends Pray take it not amiss if we do a little further reason in our own case we being the Sufferers and Loosers If an order of Session be it right or wrong cannot be reversed or dispensed withal out in Sessions Then we may coâ—clude we have suffered wrong in not being admitted a hearing the last day of the Sessions as was before granted if not promised and as we earnestly desired and our Friends moved for it in Court to have made our exception agaâ—nst the late Recorder's irregular Proceedings and his said Order whereby we are detained we having matter against both â—o that the same Sessions upon a further discovery had Power as well to have reversed the Order or discharged us as an Error in process may the same Term be reformed in the same Court And further If a Person committed to Goal by the Justices with these Words in the Mittimus Scil. without Bail or Mainprize Wâ—ere the Prisoner is bailable by Law may be let out upon Ban by other Justices which we suppose is not to be denyed Daâ—t fol. 280. Then by the same reason Persons illegally committed at Quarter-Session may be discharged before next Sessions For such order is no otherwise in force then 't is according to Law and not because the Justices made it And none ought to be wrongfully detained or delayed in Prison any more then wrongfulâ—y or faâ—sly Imprisoned Also for two or three Justices within their Power and Commission to reverse a wrong Commitment or Erroneous Process especially where they might have the consent of the rest as you might in our case is but to make void that which in it self is void in Law and to be holden for None To be sure Magna Charta the Petition of right and the common Law or Reason of the Land with many ancient and good Laws wherein the Liberty and Property of English men are concerned strictly prohibiting illegal Imprisonment denying or delaying Justice c. These will out Ballance the circumstance of any Order or Warrant nâ—t self unwarrantable The most that can be charged against us as to matter of Fact since we were Recti incuria by being discharged from the matters contained in our Mittimus and Warrant is our not Swearing Allegiance We were no Offenders till a Trap was laid to make us such by Francis Bacon in his Abruptly surprizing us with that Oath to run us to a Praemunire a he had threatned us aforehand whereas the Law was never intended to ensnare and entrap Men. And God knows our not Swearing is not for any the least favour to those seditious and treasonable Practices Principles and Positions abjured and renounced by that Oath for they are an Abhorrence to us For if we were so Unnatural and Perfidious as to reserve any such wicked Principles we might as casily equivocally swallow that or any other Oath for our own Interests But let such Collusion and Fallacy be forever far from us 'T is only for fear of offending our Lord and Master Christ Jesus as in all other cases For we your Prisoners never took an Oath in our Lives we dare not Swear in any case because of Christ's and his Apostles universal Prohibition in that case as we understand it and many of the Primitive Christians and Martyrs even Protestant Martyrs were of the same mind We freely and publickly â—ssâ—nted to the Declaration and Promise of Allegiance contained in the Oath and hope ever to be found in the Practice thereof only we are under a Conscientious restraint not to Swear it We are no Papists nor in the least Popishly affected but wâ—…olly averse to Popery as is well known to many What 's then wanting on our parts in this case Is it not only in that we Swear not to that which we profess and practice Pray then
Rule therefore for all Judges and Justices whatsoever that have Jurisdiction by any Statute which at the first was Temporary or for a time to consider well before they give Judgment Whether that Statute hath been continued or made perpetual whether it be not repealed or altered by any latter Statute Erudimini qui judicatis terram See 2 part Instit 22 H. 8. c. 4. The Exposition upon the Statute of 22 H. 8. c. 5. 4 thly Query But how well do they consider before they give Judgment If they 'l pick up these two or three Words out of one Statute which are after left out in another to warrant a first tender of the Oath in Sessions to any other Person whatsoever though he be a peaceable Protestant and for once refusal to run him to a Praemunire Here they take no notice of the alteration bâ—fore they give Judgment but such Protestants must be more hardly dealt withal than the Papists 5 thly If any other Person whatsoever besides the Popish Recusant under Prosecution in Court may be run to the Judgment and Penalty of a Praemunire for once refusing of the Oath being surprized with a first tender thereof in Court then that any other Person whatsoever may be dealt more severely with than Popish Recusants for they may have time deliberation and the course of Law for a first tender out of Court and a second in Court before Judgment But any other Person whatsoever upon a surprizal by a first tender in Court and refusal doth presently incur Judgment This Interpretation and procedure the Law-makers could never intend with the least colour of Equity or Reason 6 thly It cannot rationally be granted that the Law in the Reason and Equity of it will bear out the Justices not only in requiring the said Oath at their Discretions of any Person whatsoever present in Court but also to give Judgment of Praemunire for once refusal that cannot be the mind or intention of the Law-makers for that were accidentally and upon a surprizal to punish any other Persons more suddainly and severely than those Popish Recusants who are under Prosecution according to the order of procedure therein prescribed and limitted for a first tender out of Sessions and a second in Sessions before a Praemunire Let the Maxim or General Rule be minded in the Case viz. Quod si vox aliqua plures habet significationes proprias usitatas illa cligenda est quae menti intentioni Legislatoris est Magis accommodata i.e. That if any Word have more Significations proper and usual that is to be chosen which is most accommodated to the Mind and Intention of the Law-maker 7 thly The Dis-junctive words insisted on are Or any other Person whatsoever shall refuse to take the said Oath being tendred unto him or her by the Justices of Assize c. And not that the said Oath shall or may be required of any other Person standing by in Court And therefore if the Justices say That he is known to be a Popish Recusant being convicted c. for such that Law intends that 's easily made appear if such or else that he is notoriously suspected which are the most colourable Allegations for a first tender of the Oath in Court to any other Person than him that 's under Prosecution Then it follows that they cannot legally so tender it to any Person whatsoever without exception or limitation but to a Popish Recusant convict or to one notoriously suspected If this last be pretended then it is to be enquired 1 st What he is suspected for What hainous Offence Crime or Principle that renders him so very Obnoxious in the Eye of this Law that he must be more hardly dealt withal upon a surprizal of a first tender in Court than a Popish Recusant under Prosecution 2 dly What occasion is there really against him to render him such a notorious suspected Person and who are his Accusers 'T is no small thing in such a case to bring a Persons Reputation and Credit so publickly into Question in Court especially if he be of good Repute among his Neighbours as no Papish nor Popishly affected which is the said Prisoners case Observation Therefore the real Causes and Reasons of suspition in this and all Criminal cases ought to be considered as for Instance Judge Cook One or more Justice or Justices of Peace cannot make a Warrant upon a bare Surmize to break any man's House to search for a Fellon or stolen Goods c. Vid. E. Cook Instit 4 part fol. 176 177. And it should be full of Inconvenience that it should be in the Power of any Justice of Peace being a Judge of Record upon a bare suggestion to break the House of any Person of what State Quality or Degree soever and at what time soever either in the Day or Night upon such Surmises For Justices of Peace to make Warrants upon Surmises for breaking the Houses of any Subjects to search for Fellons or stolen Goods is against Magna Charta M.C. cap. 29. Neo super eum ibimus neo super eum mittemus nisi perlegale Judicium parium suorum vel perlegem terrae And against the Statute of 42 Edward 3. c. 3. c. Justices of Feace are Judges of Record and ought to proceed upon Record and not upon Surmises Sed distinguenda sunt tempora concordabunt leges i.e. Times are to be distinguished and Laws will agree As to a sufficient cause of suspition see likewise Michael Dalton c. * See also M. Dalton's Justice of Peace fol. 276 of Excommunication of Fellons Communis vox fama that he did the Offence is sufficient cause of suspition viz where such a Fellony is done otherwise not But yet for the better conceiving what may breed or give just cause of Suspition mark some of Mr. Bracton's Rules Ocitur suspitis ex famâ fama vero quae suspicionem inducit oriri debet apud bonos graves non quidem Malevotes sed providas fide dignas Personas idque non semel sed saepius Vanae autem voces Populi non sunt andiendae And therefore where the common Proverb is Vox Populi est vox Dei it should be Vox Populi Dei est vox Dei 8 thly The Words or any ether Person whatsoever c. in the 3 Jac. 4. being left out of the same Clause in 7 Jac. c. 6. and inconsistent with the course of procedure therein for a first tender of the Oath out of Court and a second tender in Court even to Pepish Recusants are therefore not to be insisted upon contrary to the latter Statute As also that passage in the 3 Jac. 4. impowering the Bishop of the Diocess or two Justices to examine Persons upon Oath about Recusancy is also left out of the 7 Jac. 6. Where there 's any inconsistency between two Acts in any clause in the same case especially where the first is more severe tan