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
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
the second 't is not reasonable the first should be insisted on in opposition to the latter considering that Axiome or Principle i.e. Benigna favorabilis Interpretatio semper praeferenda est praesertim simateria legis sit poenalis ediosa i.e. A gentle and favourable Interpretation ought alwayes to be preferred especially if the matter of the Law be penal or grievous To conclude on some Questions and Considerations instead of an Argument more absolute though the Statute before-mentioned i.e. 3 Jac. c. 4. and 7 Jac. c. 6. be not actually repealed yet the Question is Whether they do give the Justices power to require the said Oath universally of the Subjects of the present King and to prosecute them to a Praemunire thereupon for not taking it 1 st Consider that the form of the said Oath is limitted and prescribed by the said Statutes to be taken respectively in King James his Name and by his Subjects for the Tryal how they stand affected in point of their Loyalty and due Obedience and not mutatis mutandis in the Name of King Charles the second and by his Subjects in general or without exception 'T was King James his Subjects and not those of King Charles the second after his decease that were by those Laws required to take it and thereby were bound to him and his Heirs The Allegiance was to him and his Heirs but how do these impower the administring of that Oath of King James to the Subjects of his Heirs That these Laws seem not to warrant therefore how can the said Oath be legally required by the same Laws of the Subjects of King Charles the second or any of them run to a Praemunire thereupon without being re-inforced or renewed by Act of Parliament And can that be without mutatis mutandis King Charles the second in the Oath instead of King James ‖ But it may be hoped that after these many Years experience more safe Expedients may be found out for securing the King and Government than this or other Oaths for those that are Perfidious can easily break over such Hedges And those that are known to be of peaceable Conversations need them not nor is it for the Honor of Princes to be rendred jealous or suspitious of their peaceable Subjects by such tyes and shakles which produce not a true natural Allegiance For even the present King in his Declaration Dec. 26 1662. hath declared His Royal dignity and greatness much more happily securely founded on his Clemency and his subjects Loves than in their Fears his Power Further adding these Words The sole strength and security we shall ever confide in shall be the Hearts and Affections of our Subjects indeared and confirmed to us c. Observation For as Judge Cook saith Neither can any Oath allowed by the Common Law or by Act of Parliament be altered but by Act of Parliament c. Cook Instit 3 part fol. 165. As the Oath of the Kings Privy-Council the Justices the Sheriffs c. was thought fit to be altered and enlarged but that was done by Authority of Parliament For further proof whereof saith he see the Statutes here quoted and it shall evidently appear that no old Oath can be altered or new Oath raised without an Act of Parliament or any Oath ministred by any that have not allowance by the common Law or by Act of Parliament Vide 5 R. 2. c. 12. 6 R. 2. c. 12. 4 H. 4. c. 18. 2 H. 5. c. 7. 8 E. 4. cap. 2. 1 R. 3. c. 6 and 15. 19 H. 7. c. 14. 14 H. 8. c. 2. 23 H. 8. c. 5. 3 H. 8. c. 5. 23 H. 8. c. 46. 2 E. 6. c. 13. 27 Eliz. c. 12. 3 Jac. 4. Mag. Char. c. 6. Stanf. pr. 17. F. N. B. 264. W. 1. 3 E. 3. c. 40. 18 E. 3. To conclude this point it was resolved in Parliament holden Anno 43 Eliz. that the Commissions concerning Polices of Assurances could not examine upon Oath because they had no Warrant either by the common Law or by Act of Parliament and therefore it was Enacted at that Parliament That it should be lawful for the said Commissioners to examin Witnesses upon Oath c. Oaths that have no Warrant by Law are rather Nova tormenta quam Sacramenta And it is an high Contempt to minister an Oath without Warrant of Law to be punished by Fine and Imprisonment Observe another Instance 2 dly In the 12th Year of the present King it is enacted by the Parliament 12 Car. 2. c. 23 24. that no Persons should be imployed in any Office relating to the Excise untill they shall take the Oath of Allegiance and Supremacy before two or more Justices of Peace together with the Oath therein inserted mutatis mutandis And likewise it is Enacted 14 Car. 2. c. 3. That no Person being under the degree of a Peer in this Realm shall be capable of acting as Lievtenant Deputy-Lievtenant Officer c. unless he or they shall first take the Oaths of Allegiance and Supremacy c. Consider hence whether the making these new Laws in Car. 2. does not argue the old Laws cited insufficient in the same case of requiring the said Oath now By an Act in the thirtieth Year of the present King Entituled An Act for the more effectual preserving the King's Person and Government 30 Car. 2. It is Enacted That no Person should Vote or sit in the House of Peers or House of Commons untill he first take the several Oaths of Allegiance and Supremacy And observe that the refusal by these Acts does not incur a Proemunire but only the forfeiture of their Places or Offices And what necessity could there be of these Acts in King Charles the second if these in King James were sufficient or not expired especially as to that severe Penalty of Paemunire meetly for refusing of that Oath as 't is required in terminis by those Laws of King James For in the 7 Jac. cap. 6. The Members of Parliament are required to take the said Oath as it was to King James and in his Name If that were still in force and sufficient what need were there of any new Laws as before to require it of Subjects under the same Circumstances now as then To conclude the Penalty of Praemunire is so severe that 't is more suitable for Rebels or Persons breaking their Allegiance to the King than for Persons only refusing to Swear it meerly for Conscience sake whilst they faithfully perform their Allegiance and intend no other but to demean themselves as peaceable minded Christians and true Protestant Subjects A more general Plea in the Prisoners case and behalf relating both to Conscience Reason and Equity First In reference to the Grounds and Reasons of the Oath of Allegiance Secondly In reference to the Reason of the Penalty of a Praemunire according as both are clearly specified in the Titles Preamble and Purport of the Statutes in
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
each side with his Elboes and smote Rose Gogny such a hard blow on her Breast that her Breast was sore several dayes Also Charles Alden the Vintner at the Sign of the Chairing-Gross came calling out Here 's Sons of Whores Here 's five Hundred Sons and Daughters of Whores The Church Doors stand open but they will be Hang'd before they will come there And whilst a Friend was speaking the said Alden said Pull down that Puppy-dogg why suffer you him to stand there Prating Robert Robinson Rose Gogny It plainly then appeared that the said C. Alden and the rest of those Rude and Tumultuous Persons behaved themselves more like Atheists and Bruit Beasts than Persons of any Seriousness Regard to Religion or Christianity Nay let Humanity and Common Civility condemn their Deportment What Ornament such Sons of the Church can be to her let their Priests and all serious Persons judge though the said Alden be accounted a great Singer at the Cathedral i.e. one of their Singing-men how Immoral and Bruitish was his Behaviour How busie was he also with the Recorder against the Prisoners informing muttering and whispering against them greatly inconsistent with so much as the pretence of common Justice to suffer much more to countenance such work Surely the Righteous Judge of all will plead with all such Malicious Agents and such Injustice will not go Unrebuked Here follows a Copy of the Prisoners Letter delivered to the Mayor before the Quarter-Sessions containing a twofold Request c. To the Mayor Justices and Aldermen of the City of Norwich WE whose Names are hereunto subscribed being Prisoners in your City Goal for our Conscience towards God do heartily wish Health Happiness and Prosperity in the Way of Righteousness unto you all and desire of the All-seeing and Heart-searching God that you may be preserved from all Injustice Prejudication and Arbitrary Proceedings both in our Case which we understand is to come before you and in all other Cases proper to your Cognisance as Civil Magistrates wherein you are required to discharge a good Conscience both in the sight of God and Men as that which will greatly tend to your Peace with God and your Reputation among good Men. For as much as we have for some Weeks been detained Prisoners in your City Goal and you have had no hand therein saving that one Person by whom we were committed we are the more encouraged to make this brief Application to you upon a twofold Request on this wise 1st We Request your Moderation and Indifferency so far towards us as that when we are called before you as a Court of Judicature in your Quarter-Sessions to hear and determin Matters that come Judicially before you you will please to hear us with Patience and suffer us to open our Case and to Plead and Argue whether it be in point of Law Conscience Reason or Fact as our Case shall require First Hear before you Determin that we may not be over born nor run down nor any such Precipitation used towards us in Court to divert or prevent us from making our Defence in referance to the Prosecution and Charge we suffer under 2dly We further Request That if upon a deliberate hearing and due enquiry into those Proceedings which we suffer under we make it appear that we are Illegally and Unduely proceeded withal besides and contrary to due process and order of Law that then you will not countenance abet nor confirm such Proceedings against us but stand clear thereof and shew your Dissent for whoever be deputed Judge in your Court as the King's Minister and Mouth of the Court 't is no otherwise so legally intended than as he shall appear to be the Minister and Mouth of the Law and Justice or Lex Loquens and therefore cannot be reasonable or safe nor yet for your Reputation or the Honour of your Court to espouse or confirm any Prosecution or Proceedure that 's Injurious or contrary to due course of Law and so tending to the * * 37 Ed. 3. c. 18. Grief and Dishonour of the King or Destruction of any of his peaceable People Now we hope you 'l not deny but assent to these two fore-going Propositions as Just and Reasonable And therefore that we shall not need now to urge upon you but only Re-mind you of these material Points of Law following 1 st It is the Kings Will in point of Law That all his Justices Sheriffs Mayors other his Ministers which under him have the Laws of the Land to guide shall allow the great Charter of the Liberties of England pleaded in all its Points 25 Ed. 1. c. 1. Cook Inst 2 part sol 527. 2 dly That if any Judgment given or any thing done contrary to the Points of the said Charter by the Justices or any other the Kings Ministers that hold Plea before them against the Points of the Charters it shall be undone redressed and holden for nought 25 Ed. 1. c. 2. 5 Ed. 3.9.28 Ed. 3.3 c. 3 dly The Court ought to be of Counsel with the Prisoner to see that nothing be urged against him contrary to Law and Right Cook Inst 3 part fol. 29. 4 thly That the Court ought to be so far from over-awing or forcibly diverting the Prisoner from his Plea or Answer That the Judge ought to Exhort the Prisoner to Answer without fear and that Justice shall be duely administred unto him Cook Inst 2 part fol. 316. 5 thly That any learned man that is present may inform the Court for the Benefit of the Prisoner or any thing that may make the Proceedings Erronious As also even in Cases highly Criminal it is lawful for any man that is in the Court to inform the Court lest the Court shoulderr and the Prisoner be Unjustly proceeded with See Cook 3 part fol. 137. Cook Inst 3 part fol. 29. Now Friends these things are recommended and left to your serious Considerations we not designing hereby as you may easily understand to enter into the Merits or Justification of our Cause but fairly to introduce the Right and Legal Cognisance thereof in order to have Justice and Right done us as ENGLISH MEN and as we are your Well-wishers George Whitehead Thomas Burr â—orwich-Goaâ— the 17th of the 2d Moneth 1680. We desire this may be Communicated An Account of the substance or principal Parts of the Proceedure at the Quarter-Sessions at Norwich holden for the City and County of the same the 18th Day of the Moneth called April 1680. In the Case of George Whitehead and Thomas Burr Prisoners for the Testimony of their Conscience Francis Bacon the late Recorder of Norwich being Prosecutor Accuser and Judge But the Mayor and other Justices more indifferent and Judicious towards the Prisoners Collected and compared by several Hands and digested into as much Order as the Capacity the Sufferers and the Circumstances of Proceedings would admit THe Quarter-Sessions for the City and County of Norwich
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
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
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
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
of Christendom effectually confuâ—ing the Popes Breves This Apology I have seen So that it was intended against the Papists is known by all Christendom Suarez Eudaemon Becanus Coftetus Peleterius and other Papiâ—s wrote against it R.R. Oath and thereby obscure their destructive Designs and escape the Penalty of the Law upon the confidence they have in the Popes pardons for all their equivocal reserves in taking the Oath going to Church c. And why may not all this be as easily dispensed withal by such Agent of Rome to carry on their evil Designs as their repairing to Church in King James's days as is signifi'd to cover their false hearts and with the more safety to attend the opportunity to execute their mischievous Designs And therefore whilst such can escape by Equivocation and the Innocent suffer for Conscientiously scrupling to Swear not only in this but all other cases that which was at first intended for the discovering and suppressing such Persons as were infected with destructive and treasonable Principles and Practices is now contrariwise by subtilty and envy so far perverted as to be made a Subterfuge for persons obnoxtious and treasonable in their Designs or disguised and wicked Agents against the Government as they are counted of the worst sort and a sâ—are and gin to catch and destroy the innocent and peaceable Subjects with both as to their just Liberties Properties and Livelihoods in this World Thus the said Oath is made use of against the Interest of both King and People they that thus use the Oath use it against the Government and thus it never attained its end Thus Justice and true Judgment is turned backward and the Justice intended by the Law perverted and the real end thereof made void and that under pretence of Justice where subtilty envy persecution and partiality blinds the mind Anno Septimo Jacobi cap. 6. The Preamble Whereas by a Statute made the third year of your Majesties reign Entituled An Act for the better discovering and repressing of Popish Recusants The form of an Oath to be ministred and given to certain Persons in the same Act mentioned is limitted and prescribed tending only to the Declaration of such Duty as every true and well-affected Subject not only by Bond of Allegiance but also by the Commandment of Almighty God ought to bear to your Majesty your Heirs and Successors which Oath such as are infected with Popish Superstition do oppugn with many false and unsound Arguments c. Hence observe still 1 st That the very first and chief intent of the said Statute and Oath made in the third year of King James on which this in his seventh year is grounded was for the discovering and repressing Popish Recusants and not for the repressing Pretestant Subjects 2 dly That 't was such as were infected with Popish Superstition in those dayes that as the Law-makers concluded did oppose the said Oath with many false and unsound Arguments And what was or could be then supposed to be their reason for their so oppugning it is to be considered It could not be simply and only because it was an Oath for that they infected generally or for the most part could Swear in other cases to serve their own turns What then 1 st No doubt it was because of the Declaration contained in it of such Duty as every true and well-affected Subject ought to bear to the King 2 dly Because of the severe renunciation of the Pope his having Power and Authority over the King or to dispose of his Dominions and against the Popes Sentence of Excommunication Absolutions and that damnable Positions of deposing Princes Excommunicated by the Pope absolving Subjects of their due obedience to their Princes c. It appears plainly that they who were infected with such Principles of Disloyalty did not oppose the said Oath simply and only because it is an Oath but because of the Declaration of such Duty and Allegiance to the King as is therein contained * * If it should be objected That there were some that thought it not to belong to their Degree or Profession to Swear If only on that account they refused it and not in favour to those seditious and treasonable Practices and Principles therein abjured then as Persons of a more peaceable disposition they ought to be distinguisht from Rebels according to King James's mind Otherwise if they could take it in dissimulation then t was an unsufficient Tryal Those that did not so think but in other casâ—s could Swear either took it as Blackwell c or declared the unlawfulness of it in respect of Allegiance c. Therefore 't was only against such that so declared or opposed the Allegiance it self that both the Oath and the Penalty were intended See Tâ—… Dialogue God and the King pag. 18. Latin Now our case vastly differs from theirs for whom the Oath was intended there 's no parity between our case and theirs We conscientiously scruple or fear to take that Oath as we do all Oaths viz. because 't is an Oath not because of the Declaration therein contained of such Duty and Allegiance as every true and well affected Subject ought to bear to the King nor yet because of the Testimony or Declaration therein against the Pope his pretended Power Excommunications Absolutions c. damnable Positionâ— c. therein mentioned for that Declaration and Testimony therein contained for Fidelity to the King and against the Pope c. we can freely sign as we have delivered a Declaration to that purpose to the late long Parliament and in some points containing a more full Protestation against Popery in the most Erronious Idolatrous and Superstitious Doctrines thereof which Declaration was accepted by a large Committee of Parliament as sufficient to distinguish us from Papists and entred into the Journal of the House of Commons And therefore the Substance of the Declaration of Allegiance contained in the Oath of Allegiance we cannot oppugn but own as 't is or may be transferred or intended on behalf of the present King in opposition to those Treasonable Practices and Principles thereby renounced and abjured as being perswaded in Conscience that he was eminently preserved and restored by a Hand of divine Providence to have actual Power and Dominion in this Realm and all other his Contries knowing that the most High rules over the Kingdoms of men and that they are at his Disposal And we also believe that in good Conscience we are bound to demean our selves honestly and to live as peaceable minded Christians and true Protestant Subjects under the King and his Government giving to Caesar the things that are Caesar's and to God the things that are God's And then our solemn and serious Protestation is against the Pope as Anti-christian and against those Popish Principles Wicked Positions and Practices viz. Of deposing or murthering Kings and Princes Excommunicated by the Pope Of disposing of their Kingdoms Dominions and Countries Of authorizing
Forreign Princes to invade and annoy them Of absolving Subjects from their Allegiance and Obedience Of licensing any of them to bear Arms raise Tumults or offer Violence or Hurt to their Lawful Kings Princes Governments or Subjects Of Treasons Traiterous Conspiracies and Hellish Plots against King Government Parliament or People Of that damnable Position that Princes that be excommunicated or deprived by the Pope may be deposed by their Subjects or any other All which destructive Principles and abominable Practices together with that Antichristian Spirit from whence they proceed we do in good Conscience and in the sight and presence of God who knows our Hearts utterly abhor protest and testifie against them and therefore do neither refuse nor scruple the said Oath in favour to these or any such Principles What 's now awanting why we must be run to Praemunire to lose our Estates and Liberties Iâ— a peaceable Conversation awanting on our parts No. Is the Duty of Allegiance towards our King awanting No. Are we infectâ—d with Popish Treacherous Treasonable or Destructive Principles against our King or his Government or People No God knows the Innocency of our Hearts and Intentionâ— and men know our peaceably Conversations What then 's the matter that we must be so severely dealt withal to the uttermost rigour of the Law to be deprived of all our outward Liberties Properties Estates Livelihoods and all our outward Comforts in this World Are we guilty of any such essential Offence or capital Crime in our not coming under the circumstance of an Oath as may justly and naturally merit such severity No sure The case is brought to a near point and resumed to a very narrow compass Aninnocent honest quiet and well meaning man both towards the King his Government and People he 's truly principled in his Duty he 's real and honâ—st in his Heart towards his Protestant Prince he 's a real Protestant against the Pope and all Popish Antichristian Positions and Destructive Practices he not only performs his Duty of Allegiance in his peaceable Conversation but also declares it in the sight of God and Men and is willing to sign and subscribe such Declaration of his Duty of Allegiance if he may not otherwise be believed only he conscientiously scruples to say I Swear and to kiss the Book to make his Declaration an Oath for want only of which circumstance and ceremony this poor innocent man and sincere Protestant must be run to a Praemunire his Liberty lost and the little Estate or Substance he has must be forfeited and all taken from him his poor Wife and small Children left desolate wholly Impoverished and want Bread his Wife must go Mourning and wringing her Hands and shedding of Tears night and day for the hard measure she has met withal and her Children dolefully Crying and Mourning for want of Bread Where 's now either Conscience Equity Reason Justice or Mercy Were it not very Inhumane thus to destroy innocent and harmeless Protestants and thereby to gratifie the Popish Spirit and Party meerly because such Protestants are afraid of an Oath They dare not Swear And how is the real intent and end of the Law answered by such severe and inhumane dealing with innocent Protestants who never were impeached nor just'y chargeable either with treasonable Attempts Principles or Practices They cannot be detected either with actual Treason or being infected with any Treasonable Principles by any of their Teachers or others And therefore no such Persons or People as those Laws of Praemunire were really intended against though such can escape them We can appeal to God Angels and all just impartial Men this is our Case We are not the People which in point of Equity or Justice the Law could ever be intended against We are of no such destructive Principles or Practices as either the nature of the Oath points at and intends or the Statute of Praemunire 16 R. 2. c. 5. was provided against unto which Statute both that of the 3d of K. James c. 4. and 7th of K. Ja. c. 6. do refer for the Penalty of a Pramunire upon Persons refusing to Swear to the Dealaration of their Allegiance Let that of 16 R. 2. c. 5. be considered as to the nature and intent thereof Anno deccimo Sexto Ricardi 2. c. 5. The Title Praemunire for purchasing of Bulls from Rome The Crown of England subject to none The conclusive Clause of the Offence and the Penalty viz. VVhereupon our said Lord the King by the assent aforesaid and at the request of his said Commons hath ordained and established That if any purchase or pursue or cause to be purchased or pursued in the Court of Rome or elsewhere any such Translations Processes and Sentences of Excommunication Bulls Instruments or any other things whatsoever which touch the King against him his Crown and his Regalty or his Realm And they which bring within the Realm or them receive or make thereof notification or any other Execution whatsoever within the same Realm or without that they their Notaries Procurators Maintainers Abettors Fautors and Counsellors shall be put out of the King's protection and their Lands and Tenements Goods and Chattels forfeit to our Lord the King and that they be attached by their Bodies if they may be found and brought before the King and his Council there to answer to the causes aforesaid or that process be made against them by Praemunire Facias c. Animadversion Now it being unto this Statute cited 16 R. 2. and the penalty of Praemunire therein mentioned that those of King James about refusing the Oath do refer the Justices as to the Penalty Hence these two things are observable 1. The Nature of the Offence or Fact incurring such severe Sentence and Penalty as that of Praemunire 2. The Nature of the Penalty if self First The Nature of the Offence or Fact is very criminal 't is Treacherous and Treasonable as that of purchasing pursuing or precuring in the Court of Rome c. Sentences of Excommunication Eulls Instruments c. which touch the King his Crown and Regality Secondly The nature of the penalty of Pramunire is suitable to the Fact it bears a proportion and is adopted thereto as that the Persons so highly offending and such perfidious Enemies against the King his Regality or Government by purchasing Sentences of Excommunication and Bulls from Rome against the King tending to destroy him and subvert his Government should incur the penalty of being put out of the King's protection their Lands Tenements Goods and Chattels forfeit to the King and their Bodies attached and they brought before the King and Council to answer c. For how should they desire the King's protection and to enjoy their Priviledges under him who purchase Bulls from Rome in order to destroy him which is still an Offence of the same nature and hind that the Oath of Allegiance and the Acts requiring it in King James his dayes were intended and provided