the Minister Petty-Constable and Church-Wardens or any two of them shall complain to any Justice of Peace near where the Party dwellâ— and the Justice shall find Cause of Suspition then he may tender and proceed as above But all this I conceive with clearness to be meant and intended Popish Recusants But admitting it otherwise I conceive as this Fact is now put the Proceedings are not warrantable by the above-said Laws nor any other for here is no such Presentment Conviction or Indictment as the Law requireâ— to warrant either the first or second tender of the Oath and thereâ—ore I conceive the Parties grieved may be relieved c. Thus far truly transscribed out of Councillor Smith's Advice under his own Hand The Premisses considered we really think it had been your Best your Clearest and Wisest way to have manifested your Dissent as we gave caution at first from Francis Bacons's precipitant irregular dealing with us about the Oath and his illegal Commitment from Sessions which is entred for protect of Authority with the Title pro Curiam and therefore our strict Confinement thereby as your Act howbeit 't is not subscribed by any of you Wherefore we yet in Love and Good Will to you both for your own inward Peace and outward Reputations as well as our own Rights request our Liberty we being wronged hurt and grieved in divers respects by the said Proceedings of your late Recorder whereof we do once more make our Complaint to you for Relief according as we think our selves obliged in Conscience and directed also by Law Pray view the Statute of the 4 Hen. 7. c. 12. for 't is a good one 't is worth your reading Judge Cook cites it See his Instit 4 part fol. 170. and insists upon it as a necessary Caveat to all Justices of Peace For that by the said Statute Provision is made for any Subject that is hurt or grieved in any thing that remedy may not be delayed or deferred being directed to make complaint to the Justice or Justices and to desire Remedy and if he have no Remedy to shew his Complaint to the Justices of Assize if it be nigh the time of their coming but if it be too long afore their coming then the grieved to come to the King's Highness or his Chancellor and shew his Grief Whereupon the King shall send for the said Justice to know the Cause why his said Subjects be not eased And if he find any of them in default in these Premisses he shall do to him so offending to be put out of Commission c. And now as we can in good Conscience say we are Persons that refuse not to Swear in favour to any Principles of Disloyalty or Rebellion Thus much in relation to the Declaration of Allegiance contained in the Oath of Obedience we do comprehensively and sincerely propose and offer viz. That Fidelity and true Allegiance to the King we do bear which in good Conscience we believe is our Duty in opposition to and utter abhorrence of all those Horrid Seditious and Treasonable Practices Principles and Positions which are abjured and renounced in the said Oath This Declaration in the sight of him who searches all Hearts we do really assent to and own and through his gracious Assistance hope ever to be found in the practice of that Fidelity and Innocency towards the King whom God preserve that become true Protestant Subjects and peaceable-minded Christians desiring only to enjoy the Liberty of the Peaceable and Inoffensive Exercise of our tender Consciences towards our Lord Jesus Christ in his Worship and Service That he may direct you in Righteousness and bless and preserve you and yours is our Prayer also Your Friends and Prisoners for Conscience sake towards our Lord Jesus Christ G.W. T.B. Norwich Goal the 21st of the 4th Moneth 1680. To the Recorder and Steward of Norwich The account of the Prisoners Case more comprehensively stated Loving Friends VVE desire you would take no Exception or Offence at our late request for our Liberties for we design none towards you or any other of the Magistrates being unwilling to disobliege any Person that hath shewn Civility to us in any kind as we acknowledge you have in admitting us some discourse with you One reason of our said Request was because the other Justices lately gave consent to our enlargement If the Recorder would consent or advise thereto as the Messenger told us We still really apprehending our selves unduly proceeded with and wrongfully detained by the late Recorder's means both in regard of our own Innocency and of the Injury and Hurt we have divers wayes sustained by this our Confinement for near four Moneths past to the impairing our Healths afflicting our Families and detriment to our Concerns And not being wholly ignorant in point of Law how unwarrantable the procedure is against us from first to last being also confirmed in our weak Apprehensions therein by Persons learned in the Laws as Council hath lately given it under Hand That indeed it s an irregular proceeding throughout And that the late Commitment by which we are detained is not good but against Law And therefore its being given or pleaded as an Order of Sessions or as pro Curiam cannot rationally argue it to be an indispensible Law you know better in Law and Logick doubtless These things considered we did think our selves in Conscience obliged and concerned as English men with respect to our Birth-rights to request our enâ—argement of the Justices of this City Howbeit we charitably hope That right is intended us when you are in Statu quo i.e. at next Sessions which is the most as we can rationally suppose can be alledged for our detention in the mean time by the said Order and according to your Advice we have been and intend to be patient till your Quarter-Sessions seeing that before 't is not thought Regular to discharge us so that then we hope no further occasion will be sought to prolong us in Prison But that as prudent men you 'l better consider our Right and your own Reputions We cannot but remember how little care of due method and regularity Francis Bacon had in getting us into Prison considering how much there seems to be now for our Discharge 1 st We were apprehended put in Prison and detained for some Hours upon his verbal Order without any Examination or Mittimus be sent the Sheriff to do it 2 dly Then we were had before him and Fined on the account of the Meeting 3 dly Then because we did not deposit the Fines he committed us to Goal for the same Meeting by a Warrant only in his own and not in the King's Name 4 thly Then he laid our Fines upon others upon a false and groundless pretence of our Poverty So he awarded two Punishments for one supposed Offence i.e. Imprisonment and Fines câ—ntrary to the Act in that case 22 Car. 2. which intends not Imprisonment Then observe his contradiction
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
of Christendom effectually confuâ—ing the Popes Breves This Apology I have seen So that it was intended against the Papists is known by all Christendom Suarez Eudaemon Becanus Coftetus Peleterius and other Papiâ—s wrote against it R.R. Oath and thereby obscure their destructive Designs and escape the Penalty of the Law upon the confidence they have in the Popes pardons for all their equivocal reserves in taking the Oath going to Church c. And why may not all this be as easily dispensed withal by such Agent of Rome to carry on their evil Designs as their repairing to Church in King James's days as is signifi'd to cover their false hearts and with the more safety to attend the opportunity to execute their mischievous Designs And therefore whilst such can escape by Equivocation and the Innocent suffer for Conscientiously scrupling to Swear not only in this but all other cases that which was at first intended for the discovering and suppressing such Persons as were infected with destructive and treasonable Principles and Practices is now contrariwise by subtilty and envy so far perverted as to be made a Subterfuge for persons obnoxtious and treasonable in their Designs or disguised and wicked Agents against the Government as they are counted of the worst sort and a sâ—are and gin to catch and destroy the innocent and peaceable Subjects with both as to their just Liberties Properties and Livelihoods in this World Thus the said Oath is made use of against the Interest of both King and People they that thus use the Oath use it against the Government and thus it never attained its end Thus Justice and true Judgment is turned backward and the Justice intended by the Law perverted and the real end thereof made void and that under pretence of Justice where subtilty envy persecution and partiality blinds the mind Anno Septimo Jacobi cap. 6. The Preamble Whereas by a Statute made the third year of your Majesties reign Entituled An Act for the better discovering and repressing of Popish Recusants The form of an Oath to be ministred and given to certain Persons in the same Act mentioned is limitted and prescribed tending only to the Declaration of such Duty as every true and well-affected Subject not only by Bond of Allegiance but also by the Commandment of Almighty God ought to bear to your Majesty your Heirs and Successors which Oath such as are infected with Popish Superstition do oppugn with many false and unsound Arguments c. Hence observe still 1 st That the very first and chief intent of the said Statute and Oath made in the third year of King James on which this in his seventh year is grounded was for the discovering and repressing Popish Recusants and not for the repressing Pretestant Subjects 2 dly That 't was such as were infected with Popish Superstition in those dayes that as the Law-makers concluded did oppose the said Oath with many false and unsound Arguments And what was or could be then supposed to be their reason for their so oppugning it is to be considered It could not be simply and only because it was an Oath for that they infected generally or for the most part could Swear in other cases to serve their own turns What then 1 st No doubt it was because of the Declaration contained in it of such Duty as every true and well-affected Subject ought to bear to the King 2 dly Because of the severe renunciation of the Pope his having Power and Authority over the King or to dispose of his Dominions and against the Popes Sentence of Excommunication Absolutions and that damnable Positions of deposing Princes Excommunicated by the Pope absolving Subjects of their due obedience to their Princes c. It appears plainly that they who were infected with such Principles of Disloyalty did not oppose the said Oath simply and only because it is an Oath but because of the Declaration of such Duty and Allegiance to the King as is therein contained * * If it should be objected That there were some that thought it not to belong to their Degree or Profession to Swear If only on that account they refused it and not in favour to those seditious and treasonable Practices and Principles therein abjured then as Persons of a more peaceable disposition they ought to be distinguisht from Rebels according to King James's mind Otherwise if they could take it in dissimulation then t was an unsufficient Tryal Those that did not so think but in other casâ—s could Swear either took it as Blackwell c or declared the unlawfulness of it in respect of Allegiance c. Therefore 't was only against such that so declared or opposed the Allegiance it self that both the Oath and the Penalty were intended See Tâ—… Dialogue God and the King pag. 18. Latin Now our case vastly differs from theirs for whom the Oath was intended there 's no parity between our case and theirs We conscientiously scruple or fear to take that Oath as we do all Oaths viz. because 't is an Oath not because of the Declaration therein contained of such Duty and Allegiance as every true and well affected Subject ought to bear to the King nor yet because of the Testimony or Declaration therein against the Pope his pretended Power Excommunications Absolutions c. damnable Positionâ— c. therein mentioned for that Declaration and Testimony therein contained for Fidelity to the King and against the Pope c. we can freely sign as we have delivered a Declaration to that purpose to the late long Parliament and in some points containing a more full Protestation against Popery in the most Erronious Idolatrous and Superstitious Doctrines thereof which Declaration was accepted by a large Committee of Parliament as sufficient to distinguish us from Papists and entred into the Journal of the House of Commons And therefore the Substance of the Declaration of Allegiance contained in the Oath of Allegiance we cannot oppugn but own as 't is or may be transferred or intended on behalf of the present King in opposition to those Treasonable Practices and Principles thereby renounced and abjured as being perswaded in Conscience that he was eminently preserved and restored by a Hand of divine Providence to have actual Power and Dominion in this Realm and all other his Contries knowing that the most High rules over the Kingdoms of men and that they are at his Disposal And we also believe that in good Conscience we are bound to demean our selves honestly and to live as peaceable minded Christians and true Protestant Subjects under the King and his Government giving to Caesar the things that are Caesar's and to God the things that are God's And then our solemn and serious Protestation is against the Pope as Anti-christian and against those Popish Principles Wicked Positions and Practices viz. Of deposing or murthering Kings and Princes Excommunicated by the Pope Of disposing of their Kingdoms Dominions and Countries Of authorizing
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
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
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
have so much Charity Humanity and good Nature towards us as not to think so hardly of us for our Conscientious perswasion as if we justly demerited any such severe Penalty a the Judgment of a Praemunire to be put off the Kings protection c. next to the punishment of Traytors when we bear no ill will to the King we have notâ—ing but Love and good Will to the King and his People Surely that Severity cannot in Reason or Equity be adjudged secundum Qualitatem quantitatem delicts supposed in our case if due measures be taken according to Equity and the Law of God in the Conscience which as the Learned conclude admits not in all cases of taking all that the Words of the Law give for that were sometimes to do against the Law To follow the Words of the Law saith Doctor and Student were in some cases both against Justice and the Common-Wealth Wherefore â—n some cases it is necessary to leave the Words of the Law and to â—ollow that which Reason and Justice requires as it is asserted Dâ—ct and Stud. pag. 27. Every man ought to have a due recourse and regaâ—d unto thiâ— inward Law of Reason and Equity in his Actions for which all aâ—e accountable to him whose Eyes are upon all the wayes of the Sons of Men. If we be questioned why we did not procure a Writ of Habeas Corpus before or at first We Answer We were not willing nor advised to do that because we did not despair to have Justice done us among you here nor do we yet which we really reckon more Honourable for this City than to delay us under a wronful Imprisonment And now as praecipitatio morosa cunctatio i.e. Too much rashness casting men down Head-long and Froward delay are accounted two great Adversaries to the due Execution of Law and Justice and we really apprehend our selves injured by the first especially through Francis Bacon's precipitant procedure We desire that none in Authority in this City may be concerned in the last towards us to the prolonging us under this restraint so far remote from our Families and Concern to the injuring of their own Consciences as to their inward Peace and our further Oppression and Grievance Moreover being sensible of a divine Hand of Providence in permitting our suffering in this place as also that our Religious cause should lose nothing by our Imprisonment as we told Francis Bacon at first we have been the more Armed with Patience and clearness of Spirit in Love and Good Will towards the Magistrates of this City Also our tenderness and respect to them has been some stop to us hitherto from presenting our Grievance â—as a Formal case to the King ‖ ‖ Though we suppose he had heard by others of it and Council which we really intended by way of Complaint if the late Recorder had continued in place seeing him so much bent against us and if the Justices would have been swayed by him as that we could not have found Relief from them after Application made to them And then from so little Converse and Solicitation as I * * i.e. G.W. have been concerned in at Court I could easily presuppose how the Irregular and Arbitrary proceedings of Francis Bacoâ— and the others Omission apparently repugnant to the Interest of both King and People would have been resented and what Reflection it would have procured Which method we find advisable and warranted for any Subject that is â—uâ—tâ—r grieved in any thing that Remedy may not be delayed as 't is very plain in the Stature 4 Hen. 7. cap. 12. which Judge Cook insists upon as a necessary Caveat to all Justices of Peace See his Institutes 4 part fol. 170. The Party grieved being directed to make complaint to the Justice or Justices and to cesire Remedy and if he have no Remedy to shew his Complaint to the Justices of Assize if it be nigh the time of their coming but if it be too long before their coming then the Grieved to come to the King's Highness or his Chancellor to shew his Grief Whereupon the King shall send for the said Justice to know the cause why his said Subjects be not cased And if he find any of them in default in these Prâ—misses he shall do to him â—o offending to be put out of the Commission c. 'T is true we have intelligent Friends at London and that some of them understanding how hardly and wrongfully we have been dealt withal have used some Solicitation on our behalf to some Persons of Quality though we have not as yet given any direction for a formal Complaint to the King upon our case And what Interest hath already been sought or pâ—oâ—ured for us was never intended to interier with the Law or Invalidate the due course of it because they knew we had it hot nor to set up Prerogative above or in opposition to Law and Justice Though we must needs assent that the King hath a Prerogative in all things that are not injurious to the Subject and Fower to disable such subordinate Ministers as do injure any of his Subjects by the undue er Male. Admimstration of Law The Earl of Yarmouth to whose kindness we are much obliged hath been pleased to mediate on our behalf by Letters desiring that all the Favour the Law will allow us may be shewn us as having received sufficient Testimony concerning our Reputation as being no Papists in order to remove that suspition pretended to the contrary to render us Obnoxious And we hope he will be of so much Credit and Repute with you as neither to expose us to the Severity of the Law for our Conscientiously fearing to Swear nor yet to prolong us under restraint upon any such Infamous or Causeless suspicion of what we really are not prejudicially insinnuated * * 1 st By the Informers 2 dly By Francis Bacon by such Questions as the late Recorder put to us As First Are you not in Orders from Rome or have you not Orders from thence Will you take the Oath of Allegiance to distinguish your selves c. Secondly Do you not hold it lawful to Lye or to tell an officious Lye in some Cases Thirdly It might be you might make your Certificate your selves in Prison With such like perverse Insinuations before and at Sessions to render us Obnoxious and Odious and to cover his Erroneous and Arbitrary proceedings God preserve and direct you and us Norwich Goal the 3d of the 5th Moneth 1680. This Account is given you in real Love and Good Will which we can assure you we bear towards you as we are your Friends who truly wish you well G.W. T.B. Delivered to the Recorder by M. Defrance the 10th of the 5th Moneth His absence from the City caused the delay of the Letter so long For proof of matter of Fact in charge that it may plainly appear the said Francis Bacon when Recorder awarded two kinds of Punishments
first Ecxeption observe First That the Form of Mittimusses or Warrants of Commitment of Persons to the common Goal ought to be in his Majesties Name or in the Kings Name or on the behalf of our Lord the King c. Dalt Just pac fol. 348 349 350 351. As Dalton shews formal Presidents * His Presidents of Mittimusses only such Warrants as are for the Commitment of Rogues and Whores and idle Persons c. to the House of Correction are sometimes made in the Justice's own Name only See Daltons Presidents as to the form of Warrants of Commitment fol. 348 349 350 351. printed in the Year 1622. Reason for Exception 2d 29 Car. 2.1677 Secondly That in the Act for the better Observation of the Lords Day commonly called Sunday there is this provision made Claus ult Provided also that no Person or Persons upon the Lords Day shall serve or execute or cause to be served or executed any Writ Process Warrant Order Judgment or Decree except in cases of Treason Fellony or breach of the Peace but that the Service of such a Writ Process Warrant Order Judgment or Decree shall be void to all Intents and Purposes whatsoever And the Person or Persons so serving or executing the same shall be as liable to the Suit of the party grieved and to answer Damages to him for so doing thereof as if he or they had done the same without †Thus the Sheriff did by the Prisoners any Writ Process Warrant Order Judgment or Decree at all Observe The Case of the said Prisoners in relation to the Meeting aforesaid where they were apprehended was neither a case of Treason Fellony nor breach of the Peace they being peaceably assembled and in a peaceable habit and posture and for no Evil intent whatsoever Therefore the whole process against them on the said 21st day of March 1679. being the Lords Day both by Sheriff and Recorder were against the Law First In apprehending and Imprisoning them without Mittimus or Examination And Secondly In the Recorder's making a Warrant of Commitment and sending them to Goal on the same Day when neither Treason Fellony nor breach of the Peace were proved or justly chargeable against them Observe These foregoing Exceptions against the said Imprisonment and Warrant of Commitment were not read in Court nor the following Notes relating to matter of Fact though both had in readiness because the said Warrant of Commitment was not insisted on by the Recorder but let fall when his Warrant for detention was detected and made invallid in Court And here it may not be amiss to add some Notes out of Dalton and others concerning the Breach of the Peace and Assemblies what are unlawful and what lawful Peace in effect saith M. Fitz is the Amity Confidence and Quiet that is between men And he that breaketh this Amity breaketh the Peace Dalt fol. 7. Peace in the common acceptation Yet Peace in our Law most commonly is taken for an abstinence from Actual and Injurious force and offer of Violence so is rather a restraining of hands than an uniting of Minds And for the Maintenance of this Peace chiefly were the Justices of Peace first made Breach of the Peace what The breach of this Peace seemeth to be any injurious Force or Violence moved against the Person of another his Goods Lands or other Possessions whether it be by threatning Words or by furious Gesture or force of Body or any other force used in terrorem Populi Of Riots Routs unlawful Assemblies When three Persons or more shall come or assemble themselves together to the intent to do any unlawful Act with Force or Violence against the Person of another his Possessions or Goods Dalt fol. 200. Br. Riot 5. Crom. 68. P.R. 25. as to Kill Beat or otherwise to hurt or to Imprison a man to pull down a House Wall Pale Hedge or Ditch wrongfully to cut or take away Corn Grass Wood or other Goods wrongfully or to do any other unlawful Act with Force or Violence against the Peace or to the manifest terror of the People 1 Ma. 12. If they only meet to such a purpose or intent although they shall after depart of their own accord without doing any thing that this is an unlawful Assembly Now in Riots Routs or unlawful Assemblies these four Circumstances are to be considered 1. The Number of Persons assembled 2. The Intent or Purpose of their Meeting 3. The Lawfulness or Vnlawfulness of the Act. 4. The Manner or Circumstance of doing it See the Statute of 1 Ma. 12. 1 Eliz. 16. Assemblies Lawful Assemblies lawful Dalt fol. ibid. 201. But an Assembly of an Hundred Persons or more yea though they be in Armour yet if it be not in terrorem Populi and were assembled without any intent to break the Peace it is not prohibited by any of these Statutes nor unlawful Crom. 62. P.R. 25. For the intent it seemeth it can be no Riot c. except there be an intent precedent to do some unlawful Act and with violence and force Dalt fol. 202. Also where there be three or more gathered together either to execute the Justice of the Law or for the exercise of Valour and tryal of Activity or for the increase of Amity or Neighbourly Friendship and not being met with an intent to break or disturb the Peace or to offer Violence or Hurt to the Person of any Such Assemblies be not prohibited by these Statutes NOR VNLAWFVL Observe But the Meetings of the People called Quakers are for the increase of Amity and Neighbourly Friendship and not with any Intent to break or disturb the Peace or to offer Violence or Hurt to the Person of any Therefore the Assemblies of the said People called Quakers are not unlawful nor against the Peace Note That the foregoing Quotations out of M. Dalton were taken out of an old Impression from which the newer Impressions differ as to the Folioes and so may not be so readily found in the new ones though they be in them all Here follows a Copy of the Discharge of the aforesaid Prisoners Norwich AT the the General Sessions of the Peace holden for the City of Norwich and County of the same before Robert Freeman Esquire Mayor of the City of Norwich John Norriss Esquire Recorder of the said City John Mingey squire Steward of the said City and other his Majesties Justices of Peace of the said City the 12th of July in the two and thirtieth Year of the Reign of our Soveraign Lord King Charles the second c Annoque Dom. 1680. Proclamation being there Publickly made That if any Person would come into the Court and give any Information or Evidence or prefer any Bill of Indictment against George Whitehead and Thomas Burr Prisoners at the Barr and they should be heard And because no Person came into the Court to prefer any Indictment or to give in any Information
against them the said George Whitehead and Thomas Burr are Ordered to be DISCHARGED being commited by Order of the last Sessions to remain in Prison untill this Sessions Observe That although we must needs grant that after the Sense of the Prisoners case and suffering had impression upon the Mayor * i.e. H.C. whose Mayralty was out before the Prisoners were releas'd and Justices of the said City the greatest part of them appeared to be inclined and desirous that they should be discharged before Sessions if they could have understood how it might have been regularly done their Eye being to the Recorder's advice in the case but some of them did as good as promise they should be discharged at Sessions Howbeit in order to the more certain obtaining thereof the Christian Care and great Industry of some Friends both at London and Norwich on the said Prisoners behalf is not to be forgotten and particularly that of our dear Friend William Mead in his industrious Endeavours and hard Journey to Norwich to visit the said Prisoners and to Solicit for them and see their Discharge effected such Labours of Love and Christian Charity God is not unmindful of And blessed are the true Followers of Christ that continue in the true Christian Spirit and unfeigned Love one to another unto the end for herein is a true Sympathizing with and fellow-feeling of one another in all Afflictions and Sufferings for the Testimony of Jesus Christ and of a good Conscience towards God The Religions Assemblies of the People called Quakers Vindicated First From the Charge of their being in Disturbance of the publick Peace Secondly From the Charge of being Seditious Conventicles mentioned in the Act of 22 Car. 2. Thirdly From the Charge of being under Colour of Pretence of an Exercise of Religious Worship in other manner thâ—n is allowed by the Liturgy or Practice of the Church of England 1. TO the first Objection we may ask our Adversaries What matter of Record * 5 R. 2. c. 7. 15 R. 2. c. 2. they can justly make against us the said People of due Conviction either from any notorious evidence of Fact or Testimony of credible Persons or Confession of our own as the Law provides of any formidable Posture that we meet in as that of Vi et armis or any menacing Words or Threats made by us or of any Contrivance of Insurrection which in the Eye of Law and Reason might be deemed or constâ—ued to be in terrorem Populi or in disturbance of the publick Peace or of the nature of a Râ—ot If such should not the matter and Circumstances of the Fact be specified upon such Record as the Law enjoynâ— But we utterly deny that we ever meet in any such formidable Posture as is of the nature or tendance of what the Law deems in terrorem Populi We meet peaceably to wait upon and really to worship and serve the Almighty God as our bounden Duty according to his Grace Light and Understanding which he hath given unto us by his Spirit In the second Year of Henry the 5th Chap. 8. It is provided that if any Riot Assembly or Rout of People against the Law be made in any part of the Realm H. 5. c. 8. then the Justices of the Peace three or two of them at the least and the Sheriff or under-Sheriff of the County where such Riot Assembly or Rout shall be made hereafter should come with the Powers of the said County if need were to arrest them and them should arrest and the same Justices Sheriff or under-Sheriff to have Power to Record that which they have found so done in their Presence against the Law And that by Record of the same Justices Sheriff or under-Sheriff such Trespessors or Offenders should be convicted in manner and form as is contained in the Statute of Forcibly Entry c. 5 R. 2.7 1 R. 2.2 And in the same Statute it is provided That like Ordinances and Pains should hold place and take effect in Cities Burroughs and other Places and Towns Infranchized which have Justices of the Peace within them Now let our Adversaries and Persecutors Answer us Where could any of them ever justly make any such legal and due Conviction upon Record against us for any such Riotous Meeting or unlawful Assembly on our parts as hath been really in it self of such a Nature and Tendance aâ— aforesaid in Disturbance of the publick Peace We positively deny that our Assemblies are of any such Nature however mis-represented by our Adversaries II. Objection If it be alledged That our Meetings or Assemblies are contrary to Law and therefore in Disturbance of the publick Peace Query We Question what Law or Statute they are contrary unto Obj. If it be answered They are coutrary to an Act which is both Mandatory and Paenal made in the two and twentieth Year of King Charles the second Entituled An Act to prevent and suppress Seditious Conventicles We Answer 1 st That our Assemblies are no such as Seditious Conventicles i.e. for Sedition Strife or Rebellion against the Government 2dly 'T is a meer begging the Question to term our Assemblies Seditious no such thing has ever been proved against them as Sedition that is * Sedition explained a stirring up to Rebellion or Discord a Raising a Faction or Mutiny as Phillipps in his New World of Words explains it But our Assemblies are for no such Design or End nor could ever any overt Act of that kind or tendance be proved or justly chaâ—ged against us in relation to our Meetings or otherwise Therefore they are no Seditions Conventicles or Assemblies 3dly Our Assemblies are made up of no such Persons or People as have committed any such dangerous Practices against the Government as meâ—tioned in the Preamble of the said Act 22 Car. 2. though rude Informers and Disturbers have come Riotously and with Violence against us into our Meetings Neither are we any such seditious Sectaries or disloyal Persons who under pretence of tender Consciences have or may at their Meetings contrive Insurrections as also the Preamble of the said Act is specified We use no pretence of tender Conscience for any such wicked End or Design The All-seeing and Heart-searching God knows our Innocence and Clearness herein as also the Nation 's long Experience can witness for us And if Titles and Preambles of Laws be the Keys of Laws and do evince or shew the Nature and respective Intentions thereof then this said Act against Seditious Conventicles where under pretence of tender Consciences Insurrections have been or may be Contrived doth not extend to us We pretend nothing but what we really intend viz. The Spiritual Worship and real Service of Almighty God who searches our Hearts and whom we sincerely Reverence and Fear III. Obj. But if it be objected That the matter of Fact incurring the Fines and Penalties of the said Act against Conventicles is our Meeting under Colour or Pretence of an