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
quarter-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-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
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
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-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-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-Quarter-Sessions for the City and County of Norwich
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
'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
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-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
unto you as Justices of the Peace according to the Statute made in the 4th Year of K. Henry the 7th Cap. 12. which is worth your while to read over and seriously to consider the tenor and purport thereof Your Friends and Prisoners G. W T.B. From your City-Goal the 19th of the 4 Mon. 1680. For the Mayor and Justices of the City of Norwich Friends you are intreated to peruse the following Narration THe great pretence for this our strict detention in your Goal being the late order from Sessions we think our selves obliged for your sakes as well as our own to re-mind you as hoping you will give the Oppressed leave to offer their Complaints That we esteem our selves injured in that we were not suffered to be called into Court the last Day of your Quarter-Sessions for an opportunity to have made our Exception which we conceive we had good ground for both in Law and good Conscience especially since we had Promise of such an opportunity and that if it appeared our Commitment were contrary to Law we should be discharged This we understand was made to one of our Friends who upon encouragement by some of the Justices moved for our Liberty in Court which not being granted then that we might be called into Court but being prevented of both we are detained to our and our Families great prejudice in divers respects our present restraint being also a depriving us of our Rights in the Creation and to the impairing of our Healths The late Order from Sessions for this our restraint without Bail or Mainprise was of Francis Bâ—con's ordering and we know no other Law than that to detain us so severely untill next Sessions and no doubt you had Power to Reverse it before the Termination of the last when the Illegality thereof had been made appear which we endeavoured an opportunity for as well as an Error in process may the same Term be reformed in the same Court Wing Body of the Commonâ— Law p. 88. But that Sessions is over the opportunity is slipt whose Omission was that Not ours we sought earnestly requested for it in real Love and Good Will as charitably thinking to find so much of Humanity Tenderness equal Law and Right among you towards us as not thus to delay us in Prison upon the said Order which we are really perswaded will not redound to the Honour of your City or Court considering our Innocency and the Circumstances of the Person which was the cause of it And we cannot reasonaby suppose that such an order should bind your Consciences from answering the Law of Christ To do to others as you would be done by and the Law of our Nation Not to deny defer or delay Justice or Right especially to any Free-born English man Mag. Charta cap. 29. J. Cook Inst 4 part fol. 182. Illegal or unjust Imprisonment more especially where prolong'd being accounted odious in the Eye of the Law and that you may more directly and clearly perceive that to detain us in persuance of Francis Bacon's Procedure and Order against us will not redound to your Reputation and Honour either as Civil Magistrates or Christians Pray consider how irregularly and arbitrarily he has acted towards us in his whole Procedure 1 st In his sending the Sheriff to apprehend and imprison us for being at the Meeting the 21st of March so called 1679. as he confest in Sessions he did as ye may remember by which means we were turned into the Goal by the Sheriff like Cattle into Pinfold and their detained for some Hours without Examination or Mittimus other than Francis Bacon's verbal Commission How arbitrary and Illegal was this Ye that are Wise men Judge what absolute Monarch could have shewn more Dominion in such a Case Consider the Consequence of such proceedings We hope your Design in chusing Recorders is for a Just and Legal end to assist you as the King's Ministers of equal Law and Justice and not to be as Kings and Emperors over your City nor that any one should assume such Prerogative or Preheminence so contrary to Law and the King's Interest The King hath a Prerogative in all things that are not injurious to the Subject Wing p. 2. but the late Recorder did assume a Prerogative or Dominion injurious in this his Proceedings Also 2 dly In his inflicting a two fold punishment for one supposed Offence i. c. Fining and Imprisoning for being at a Meeting contrary to that very Act against Conventicles 22 Car. 2. which was not made to commit the Persons to Goal but only to fine them alâ—eâ—t our Meetings are no otherwise designed by us than for God's Worship and Service When he first eâ—amined and committed us he told â—s thus viz. If you will neither pay your Fines nor take the Oath of Aâ—…gâ—ance I must commit you to Prison you may chuse whether you â—ill pay your Fines take the Oath or go to Prison To excuse these before mentioned proceedings against us being all on the 2â—st of March 1679. which was the Lord's day when we excepted against them as contrary to a late Act of Parliament for the better observatâ—on of the Lord's day 29 Car. 2. he alledged That our Meeting was against the Peace And what fellows Therefore he might first send the Sheriff to apprehend and imprison us without Mittimus and after that Fine us and tender us the Oath the same Day and if we would neither pay our Fines nor take the Oath then commit us to Prison Note That the said Act for the better observation of the Lord's day prohibits the serving or executing any Writ Process Warrant Order Judgment or Decree excepting in Cases of Treason Fellony or breach of the Peace If in these or any of these Cases the requiring Persons to take the said Oath and their taking of it will serve the turn to excuse them of such Crimes than that Oath may be a Cure for all Diseases or Enormities against Law of what different species or kinds soever The Justices need but require Treasonable Fellonious fighting and quarrelsom Persons to take the Oath of Allegiance and their taking of it shall quit them of all Pains and Penalties But we hope you are so ratiâ—nal as to understand that legally to require the said Oath is a distinct Case or Process from the cases of Treason Fellony or breach of the Peace and that there is no more reason to require the said Oath in any one of these Cases then in all of them 3 thly In his laying our Fines upon other persons and imprisoning us for being at the said Meeting and giving out Warrants to break open their Doors and distrain their Goods upon a false pretence of our Poverty after we had plainly signified the contrary to him both as to the competency of our Estates and known Habitations so as he could have no reason to judge or think us unable But besides the Illegality hereof pray what Justice or
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-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
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
that did procure Sentences of Excommunication and Bulls Instruments c. from Rome against the King which touched the King his Crown and Regalty 16. R. 2. c. 5. Of Praemunire Judge Cook Instit 3 part fol. 126. The greatness of these Punishments do shew the Greatness of the Offence It is to be observed that the Statute of 16 R. 2. is strictly Pen'd against Offenders c. Observe The Prisoners have to plead that they are no such Offenders nor justly chargeable with any such Offence against the King his Crown or Regalty as is mentioned in the 16 R. 2. c. 5. The Exceptions against the De Novo tender of the Oath argued IT being a Maxim in Law that the Penalty ought not to exceed the Offence but to be secundum Qualitatem Quantitatem delicti Therefore to punish Innocent Persons with the penalty of Praemunire for not taking the Oath only upon a Principle of Conscience because they are afraid to Swear in any case and not upon any Principles of Disloyalty equally with them whom the Law concludes Disloyal and Treasonable in their Principles at least if not actually such and upon no other account can reasonably be supposed to refuse the said Oath of Allegiance This appears very unjust and neither secundum qualitatem nor secundum quantitatem delecti supposed The Case further argued and illustrated 'T is evident that the Penalty of Praemunire was intended by the Law for Persons guilty either of Treasonable and Seditious Practices or Principles against the King and Government tending to the Subversion thereof as appears by the intent of the Law 'T is presum'd they are at least such Inhaerent Traytors by disloyal and perfidious Principles as that they are prepared and ready to be actually such as appears by the Preamble of the 3 Jac. 4. 1 st By the Statute of 16 R. 2. cap. 5. Praemunire for procuring Bulls sentences of Excommunication c. from Rome against the King his Crown and Regalty 2 dly By the Statute of 5 Eliz. cap. 1. Praemunire for holding with extolling setting forth maintaining or defending the Authority Jurisdiction or Power of the Bishop or See of Rome by Writing Cyphering Printing Preaching Deed or Act Advisedly and Wittingly c. 3 dly By the Statute of 13 Car. 2. cap. 1. Entituled For his Majesties Person and Government against Treasonable and Seditious Practices Wherein Praemunire is for Maliciously and Advisedly by Writing Printing Preaching or other Speaking c. declare or affirm that the Parliament begun at Westminster November 3. Anno 1640. is not yet dissolved or endeavouring a change of Government c. All which are deemed by Law matters of Fact Seditious and Treasonable to which the Penalty of Praemunire is sutably prepared 4 thly By the Title and Preamble of the Statute of the 3d of King James chap. 4. being an Act for the discovering and repressing of Popish Recusants It s evident that 1 st Praemunire was intended by the Law-makers for such Persons as were Popish Recusants and infected by the Wicked and Devilish Counsel of Jesuits Seminaries c. 2 dly And so far perverted in the point of their Loyalties and due Allegiance as that they were ready to entertain and execute any Treasonable Practices instancing that Barbarous and Horrible attempt of the Gun-Powder Plot. 3 dly And for divers Persons Popishly affected who to cover and hide their false Hearts and to attend the opportunity to execute their Mischievous Designs repair sometimes to Church to escape the Penalty of the Laws c. Which parts of the Preamble duly considered two things are Naturally deducible to render the Penalty of Praemunire sutable to the Offence as all Penalties of Laws ought to be 1 st That the Law looks upon them to be Inherently Traytors or Traytors in Principle and thereby prepared for Treasonable Practices who justly demerit that Penalty 2 dly That the Law-makers could intend or suppose the Penalty justly due to no other Persons than such as would refuse the Oath of Obedience with respect to such Principles of Disloyalty tending to Rebellion and Treason as were secretly reserved in their false Hearts according to the Preamble of the said Act 3 Jac. cap. 4. That these Words in the 3d of K. James cap. 4. viz. Or any other Person whatsoever c. shall refuse to take the said Oath being tendred unto him or her by the Justices of Assize c. shall incur the danger and penalty of Praemunire cannot rationally be so largely construed and urged as for their making a first tender thereof in the Court of Sessions to any Person whatsoever standing accidentally in Court without any precedent and just cause of notorious Evidence against them or Conviction of being Popish-Recusants c. for these Reasons 1 st Because some Persons in Court who are real Protestants may Conscientiously scruple to Swear or take any Oath upon the same Principle of Christ's Doctrine Matth. 5. and James 5. upon which many Primitive Christians and Martyrs even Protestant Martyrs refused to take an Oath in any case and not from any Principles of Disloyalty and Rebellion which the Oath of Allegiance was provided against 2 dly Because the Words as construed vary from the Order and Course of proceeding prescribed and allowed even unto Popish Recusants i.e. for a first tender to be made out of Court and a second in Court before a Praemunire for refusal Therefore it must intend Any other Person whatsoever being a Popish Recusant convict It would be very unequal and unreasonable to Praemunire a Protestant for once Refusal in Court upon a surprisal by a suddain tender and allow a Popish Recusant so much order of proceeding and deliberation as a first Tender out of Sessions and a second in Sessions and a refusal upon each before a Praemunire howbeit Women covert are exempted from Praemunire ☞ 3 dly The Words Or any other Person whatsoever are left out in the 7 Jac. cap. 6. in the recital of the same Clause relating to the tender of the Oath in the Assize or general Quarter-Sessions there must needs be some cause for the leaving out these Words in the same clause And the latter Act being in the same case more gentle in this Point supposes the former too severe and therefore the Words are left out For if the first had been without Fault what need of a second And its apparent that in the 7 Jac. c. 6. the first tender of the Oath by the Justices is made out of Sessions and the second in Sessions and a Refusal upon both before the Judgment of Praemunire Observation The Commission of the Peace stood over-burthen'd with divers Statutes Some whereof saith Chief Justice Cook Instit 4. part fol. 171. are stust with many vain and unnecessary Repetitions and many other Corruptions crept into it by mistaking of Clerks c. Divers Statutes have been repealed and divers have expired c. He hereupon cautions thus It is a good
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
Exercise of Religious Worship in other manner than according to the Liturgy and Practice of the Church of England or in other mannor than is allowed thereby Answ We answer 1 st That the words Colour or Pretence have relation to the Preamble as Who under pretenve of tender Conscience have or may at their Meetings contrive Insurrections as late Experience hath shewn But such pretence or colour of Religious Exercise for any such Contrivance were Abominable Deceit and Hypocrifie and never chargeable upon us or our Assemblies We can challenge the whole VVorld to detect us herein 2 dly We are not conscious to our selves of any such matter of Fact committed in our Assemblies and on our part which the Liturgy or Practice of the Church of England allows not If we be herein charged let 's know what it is that we have done in our Assemblies which the Liturgy and Practice of the Church of England allows not of seeing the Liturgy allows of the holy Scriptures which we are sure allow of and enjoyn Christians Assembling together to wait upon and worship God in Spirit and Truth and of the manner thereof as to the places whether in Houses or abroad in Fields or Mountains which is our case both as to the matter and manner of our Assemblies Obj. If it be still objected That our Meetings are under colour and pretence of an Exercise of Religious Worship in other manner than according to the Liturgy and Practice of the Church of England Answ We answer 1 st What that exercise of Religious worship is that is in other manner than according to the Liturgy should be explained unto us and that according to Law seeing this late Act against Conventicles does not explain What Manner ' t is But 2 dly we find in a Statute made in the first year of Queen Elizabeth Chap. 2. That that other Manner is thus explained viz. †What other Manner the Liturgy allows not That if any Person or Persons whatsoever shall by open Fact Deed or shall by open Threatnings compell or cause or otherwise procure or maintain any Parson Vicar or other Minister in any Cathedrial or Parish Church Chappel or in any other place to sing or say any common and open Prayer or to minister any Sacrament otherwise or in any other Manner and Form than is mentioned in the said BOOK c. This does not at all reach our case we are not found guilty hereof and therefore are not condemnable by the Law in this case this concerned the Clergy not us and we neither threaten compel cause or any wise procure or maintain any Parson Vicar or any else to sing or say any common or open Prayer or to minister any Sacrament in any Cathedrial or Parish-Church c. we are so far from that we compel No Body to any Form of Singing or Praying in God's Worship but perswade men to serve and worship God as he directs and for that end desire all may come to his divine Grace and good Spirit in their Hearts to guide them in his holy Worship both as to matter and manner of praying and praising his Name that they may serve and worship him not in the oldness of the Letter but in the newness of the Spirit for such he is even in our days seeking to worship him as must worship him in Spirit and in Truth and such both pray with the Spirit and sing with the Spirit and with Understanding according to the antient Apostolical Testimony and Practice of the Primitive Spiritual Christians Norwich An Account of the People called Quakers sent to Prison by Francis Bacon when he was Steward and also since he was Recorder and those Mayors of the City of Norwich who joyned with him since the late Act against Conventicles 22 Car. 2. came forth 1670. THe 10th of the Moneth called July 1670. Thomas Buddery John Rust Edward Monk William Waymor and Anthony Alexander were sent to Prison upon pretence of a Riot for telling People as they passed to the Mayors House there were the Informers when people were inquisitive to know which they were by a Warrant from the then Mayor and Francis Bacon Steward signifying no crime in the Warâ—…nt but till they could find Sureties for the Behaviour where they were in Prison till the Sessions and an Indictment brought against them for a Riot but the Grand Jury were found better Justices and would not find the Bill They were detained Prisoners about five weeks 1670. Samuel Duncon and Anthony Alexander in the year 1670. made their Appeal where in stead of having Justice done them the said Francis Bacon being Judge of the Sessions did absolutely surprize them by his Illegal Proceedings refusing to give them a Copy of the Records and made one Witness being also a party serve his turn and the Act says there must be Two for which they wrote to the Mayor Steward and Court of Aldermen telling them of their Injustice and for so doing they were committed to Prison by the said Mayor till they should find Sureties for their appearance at Sessions upon pretence of scandalous Expressions in their said Letter who was observed to Tremble when he signed the Mittimus and for it they were kept Prisoners about A YEAR 1676. Thomas Atkins was taken out of a Meeting the 17th of the 5th Moneth 1676. by Constables and Informers and being had before the Mayor and Fr. Bacon Steward and several Aldermen in their Council-Chamber some of them being very bitter and cruel saying he should pay his 20 l. and they tendered him the Oath of Allegiance and he refusing to Swear they sent him to Prison where he was detained about fourteen Weeks 1678. Thomas Murford had his doors broke open by a Constable having a Warrant from Francis Bacon Recorder for 20 l. Thomas being not at home who made his Appeal when he came home but the Recorder being Judge and having a Jury for his purpose carried the Case and from the Court committed Thomas to Prison where he was detained twenty Weeks 1678. Simon Gogny was sent to Prison the 16th of the 1st Moneth 1678. by Francis Bacon Recorder till he should find Sureties for his good Behaviour Because the said Simon spoke to him when he came himself to break our Meeting something on that occasion by way of Warning telling him of Empson and Dudly he was detained eight Weeks and odd dayes 1679. Thomas Buddery was sent to Prison by Francis Bacon Recorder the 30th day of the 1st Moneth 1679. till he should find Sureties for the Peace so expressed in his Mittimus Because he answered in defence of Truth in these words viz. The Service of God is Perfect Freedom he was detained in Prison six weeks odd dayes Norwich A brief Account of what Goods have been taken from some of the People called Quakers in Norwich since the Year 1670. to this 30th day of the 1st Moneth 1680. by Warrants from Francis Bacon
when Steward and Recorder and three of the Mayors of Norwich who assisted him upon the late Act against Conventicles   L. S. D. 1670. Five times in the same year The 15th of the 5th mon. 1676. TAken from Samuel Duncon at several times by Warrant from two Mayors and Francis Bacon both when he was Steward and since he was Recorder Goods to the value of 72 15 5 In the Years 1670 1675 1676 1678. Taken from Anthony Alexander by Warrants from the same Justices and also by the third Mayor Goods valued at 72 16 8 In the Years 1676 1678 1679. Taken from Thomas Murford by Warrants from Francis Bacon Recorder Goods to the value of 60 01 0 In the Years 1670 1679. Taken from William Waymor by Warrants from the then Mayor and F. Bacon Recorder Goods to the value of 10 09 0 In the Years 1675 Taken from John Fiddeman to the value of 00 08 6 1675 From John Sharping Junior 00 05 0 1675 From John de France 00 10 0 1676 From Robert Hutchinson 00 07 2 1670. From Thomas Buddery 01 00 0   Sum Total 218 12 09 Note That 't is not thought fit to expose the Names of the said Mayors of Norwich in this place hoping that they or some of them at least have seen better things by this time than for the future to have any hand in such Horrid Oppressions by Imprisonment Fines and Distresses upon their Poor Industrious Neighbours for their tender Consciences in their meeting to serve God as they are inwardly perswaded They cannot be ignorant how discouraging and destructive such Imprisoning Spoiling and Impoverishing their Neighbours is to the Trade of their City which in the Manufactures much depend upon the Wooll-Combers and Worsted-Weavers c. And when such poor Labouring men are thus spoiled and harrassed as to their Livelihoods how hard it is for their poor Families to subsist How can such Severities consist either with Christianity or Humanity Let the Principle of Justice in all Consciences judge And may thâ—se guilty of such Oppressions Repent before they dye Here follows a Copy of an Address from our suffering Friends in Norwich in the Year 1679. directed to the Knights and Burgesses for the County of Norfolk and City of Norwich The Suffering Case of some of the People called Quakers in the said City THe Goods of several have been taken away without being tryed by their Equals only by Witnesses in their absence which was given against them by such as were Parties and when some made an Appeal and desired a Copy of the Records which were Sworn in their absence before their Tryal they were denyed it and Francis Bacon who is Recorder of the said City and sate for Judge of the Sessions would not let the Evidence be viva voce but made the said Records which he would not grant a Copy of before the Tryal the only Evidence against some Appealants and put them upon disproving that and so surprized them and for complaining of the Injustice of it two were sent to Prison and they were kept Prisoners about twelve Moneths And another that made his Appeal F. Bacon sent to Prison who asking him Wherefore he was sent to Prison told him He should know afterwards and he was kept close Prisoner eighteen Weeks And John Crow an Attourny upon Warrant from F. Bacon aforesaid against Samuel Duncon of Norwich upon the account of a Meeting got into the said Samuel's House when he was from Home and shut up hiâ— Shop and he and others kept Possession of his House night and day to the terror of the said Samuel's Wife who was very big with Child and took away the said Samuel's Goods and when one would have taken account of the Goods the said John Crow wouâ—d not suffer it but they rather acted like Plunderers than Executors of Justice And the said F. Bacon hath slandered the People called Quakers as being Papists and Jesuits exciting the Jury at the Sessions in Norwich to bring in presentments against them upon which some have been Presented and Arrested upon a Sessions process for 20 l. per Moneth for not going to the Parish Church And the said F. Bacon hath very lately prosecuted the said People for their Meeting to worship God and hath sent two to Prison that he took at such a Meeting which were kept Prisoners near eight weeks in a stinking Hole one of which he sent to Prison without a Warrant and it s said threatned to seize upon their House and presseth the Constables to execute Warrants from him against some of the said People called Quakers to take away their Goods and tells them They must break open their Doors And upon the 19th of the 3d Moneth 1679. came two Constables to the House of William Waymor with a Warrant from F. Bacon to strain for 10 l. 5 s. who unbarr'd his Shop Door and an inward Door being lockt broke it in pieces and took Goods to the value of 10 l. and better and praised them at three Pound and say They must come for more upon the same Warrant which great Spoil as aforesaid being made upon us by Mercinary Witnesses in our Absence and given against us and we thus oppessed by such as are Parties This kind of proceedure we conceive with submission is not more excusable now than it was in the case of Empson and Dudly ††These two Oppressors Empson and Dudly were impeached before the Court of Parliament for their Arbitrary Proceedings and Horrid Oppressions which they committed upon Information for the King having many Informers to assist them without lawfull Presentment Tryal of lawful Peers or Verdict of 12 honest men They acted under pretence of a Law made in the 11th year of K. Henry 7. c. 3. which being contrary to Magna Charta cap. 29. was made void and repeated 1 Hen. 8. c. 6. by the Parliament holden then and the two Oppressors brought to their Tryal Condemnation and Execution See Câ—oks Inst 2 part fol. 51. and 4 part fol. 40 41. in King Henry the 7th's time who were impeached and condemned for their Oppressions and Arbitrary Proceedings though they pleaded the prosecution of an Act of Parliament and to be of as dangerous a tendency to Arbitrariness Thus some to gratifâ—… their Prejudice others their Covetousness under pretence of prosecuting the late Act against seditious Sectaries have very much oppressed the Subjects and what is charged upon the Prosecutors aforesaid can be proved if required Wherefore we intreat your tender Consideration of this our suffering Condition and endeavour for our Relief Signed by Samuel Duncon and fifteen more of the Citizens and Inhabitants of Norwich Norwich the 23d of the 3d Moneth 1679. ERRATA Ingenious Reader BE pleased to Correct these Faults which have escaped the Press through the Printers Inadvertency and not to impute them to the Authors Page 3. Line 24. for enterim read interim p. 7. l. 22. r. it cannot p. 8. l. 29. f. causes r. cause p. 9. l. 4. for 18 read 28. p. 14. l. 35. r. Mittimusses p. 15. l. 31. r. Justices p. 16. l. 31. f. Anglia'r Angliae p. 24 l. 17. f. Court is bound r. Court is not bound p. 29. l. 9 10. f. except r. accept p. 31. l. 8. f. Qualitatem delicti r. Quantitatem delicti p. 40. l. 21. r. referred p. 44. l. 15. f. there r. here p. 47. l. 35. f. this r. these p. 51. l. 1. f. pro r. per. p. 52 l. 24. f. pretect r. pretext l. 25. f. pro r. per. p. 54. l. 25. f. pro r. per. p. 58. l. 4. f. incuria r. in curia p. 65. l. 5. dele M in the Margent p. 71. l. 27. f. ocitur r. oritur p. â—2 l. â—1 f. edioâ—a r. odiosa p. 79. l. 27. r. the infected There are otheâ— Fault in Letters and Points which are to be amended or understood as the sense will shew in the reading THE END
therefore to will and require you to receive and keep the said George Whitehead and Thomas Burr in the common Goal for the City and County aforesaid until they shall be from thence discharged by due order of Law And hereof fail not Given under my Hand and Seal the 21st day of March Anno Dom. 1679. To the Constables of the Ward of West-Wymor and to either of them to convey and to your Keeper of the Common Goal aforesaid to receive and keep the said George Whitehead and Thomas Burr according to this Warrant G.W. Does the Recorder own this to be a true Copy Yea or Nay R. I care not whether it be true or false there 's another Mittimus against you c. G.W. Let this Mittimus be considered first Doft thou own it to be a true Copy or no We have it attested R. It may be it is what then It may be true for ought I know c. or to that effect G.W. Then pray observe this Mittimus the Tenor of it what it contains 1 st As to the Cause of our Commitment 2 dly That is the Premisses which we are to answer to and to be tryed and delivered upon 3 dly And that according to Law or according to due course of Law c. 1 st Then the Charge concerns matter of Fact i.e. being at a Meeting And 2 dly What such a Meeting or how qualified i.e. A Meeting in Disturbance of the publick Peace c. These are the matters in Charge against us which the Court ought to take Judicial Cognizance of either to acquit us if Clear or to condemn us if Guilty of any such Meeting R. Read the other Mutimus you have a Copy doubtless G.W. We have a Copy of the second Warrant But this is not to be evaded this is the Mittimus this contains the Cause of our Commitment and the Charge that lies against us c. which the Court is bound only to take Cognizance of for we are thereby referred to the Quarter-Sessions R. Read the second Warrant that contains the Cause to wit my tendring you the Oath c. By taking whereof you ought to shew your Allegiance or Obedience to the King G.W. Either the Mittimus is a Legal Mittimus or 't is Illegal If Legal then let 's answer to the Premisses c. If the Oath be insisted upon to evade the Mittimus that will bespeak either want of other matter against us or else that the Mittimus or Commitment is Illegal R. Read the second Warrant c. G.W. We have Exceptions against the second Warrant If I read that the Exceptions ought also to be read Shall read them when I have read the Warrant Court Well you may read both G.W. Now the Court is engaged and concerned to make good the Liberty granted me to read our Exceptions when the Warrant is read The second Warrant read which follows City and County of Norwich WHereas George Whitehead and Thomas Burr were lately sent by my Warrant unto the common Goal for the City and County aforesaid Francis Bacon for being Seditiously assembled with some hundreds of other disloyal Persons against the publick Peace and in contempt of the Laws and Government of this Realm Now for that the said George Whitehead and Thomas Burr are suspitious Persons and Strangers to this City aforesaid and being unwilling to declare that Duty which they and every true and well affected Subject ought to bear by Bond of Allegiance to our Gracious King they did severally refuse to take and pronounce the Oath of Obedience to the King's Majesty duely tendred unto them and after they were severally required to do the same by me These are therefore in his Majesty's Name to will and command you to keep the said George VVhitehead and Thomas Burr in the common Goal for the said City and County without Bail or Mainprise until the next General Quarter-Sessions of the Peace to be holden for the City and County aforesaid and hereof fail not Given under my Hand and Seal the 23d day of March Anno Dom. 1679. To the Keeper of the Common Goal for the City and County of Norwich G.W. I hope the Recorder cannot deny the Copy to be true R. I will vindicate it by Law in any Court in England c. or to that effect G.W. Hear the Exceptions against this Second Warrant I 'le read them deliberately If the Court has any thing to object against any particular that may be read over again after the first reading Court Read them Go on c. The Exceptions against the second Warrant for detention of the Prisoners in the Common Goal without Bail or Mainprise bearing date the 23d day of March Anno Dom. 1679. Exception I. First The Prisoners being committed till Sessions there to answer to the Premisses contained in their Mittimus Therefore the Court ought to take Judicial Cognizance thereof that is of the Charge contained in the said Mittimus for their Tryal and Discharge thereupon by due order of Law and not to suffer the second Warrant to be insisted upon nor the Mittimus to be evaded Exception 2. Secondly Because that after the Command given to the Keeper to keep them in the Common Goal until the next General Quarter-Sessions c. The Lawful Conclusion is wanting viz. Until they shall be delivered by due Course of Law See Cook in the 2d part of his Institutes fol. 52. concerning a Commitment by Lawful Warrant ††Note that the Prisoners foreseeing that the Recorder would insist upon the second Warrant as the Mittimus did therefore prepare this second Exception The Warrant or Mittimus faith he containing a Lawful Cause ought to have a Lawful Conclusion viz. And him safely to keep until he be delivered by Law c. And not until the party committing doth give further Order And this doth evidently appear by the Writs of Habeus Corpus both in the Kings Bench and Common Pleas Exchequer and Chancery Again he saith Secondly The Mittimus ought to be as hath been said till he be delivered by Law Ibid. Cook 2 part Inst fol. 53. Again now as the Mittimus must contain the Cause so the Conclusion must be according to Law viz. The Prisoner safely to keep until he be delivered by due order of Law and not until he that made it shall give other Order or the like Ibid. fol. 591 592. Exception 3. The third Exception is deduced by way of inference from the second Thirdly Therefore the Justice had no Legal Power to give other Order or Warrant which interposeth between his Commitment of the Prisoners and their Delieverance by due course of Law which is mentioned in the Warrant of Commitment but not in this pretended Warrant for detention The Justice who committed the Prisoners had no legal Jurisdiction over them thus by himself to interpose to fasten them They were thrust out of his hands by their Commitment and thereby referred to the