'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
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
Free-born English Men. This on the Interruption R. We have power here to tender you the Oath without taking notice of any other Cause G.W. 'T is Preposterous to run us upon the Oath in the first place we being not committed for that but for other Causes R. You affront the Court. Is that a fit Word to give the Court to charge the Court with Preposterous proceedings or to that effect G.W. I do not charge the Court I do distinguish between the Recorder in this point and the Court He seeks to run us upon that first which in course is last according to his own Mittimus and Warrant And is not that Preposterous Let our Mittimus be read and that will shew we were not committed upon the Oath G.W. We ought to have due process or proceeding in due course of Law therefore the Court should know how we were first Arrested and turned into Goal by the Sheriff without Examination Mittimus or Warrant and how afterward had out and committed and what the Mittimus is What are the Premisses contained in it that we are to answer unto The Law of England is tender of mens Liberties Properties Estates and Lives all which are concerned in our Imprisonment Lex Anglia ' is said to be Lex Misericordiae i.e. the Law of England is a Law of Mercy one Reason whereof is that the Innocent may not be worn or wasted through long Imprisonment but be brought forth speedily to his Tryal according to Magna Charta c. R. Look what an Argument or Consequence you would draw from hence The Law of England is a Law of Mercy 't is Lex Misericordiae therefore Thieves or Malefactors c. must not be brought to condign Punishment c. or to that effect G.W. That 's none of my Consequence mine is the same that Judge Cook doth instance wherein the Law of England is Lex Misericordiae in that 't is tender of mens Liberties and prescribes a due course of Proceedure Interrupted as it may be applyed to our Case Either we are Innocent or Nocent if Innocent we ought to be heard and not delayed in Prison if Nocent or Criminal we ought to have due and orderly proceeding according to the Law of the Land that our Offence may the more plainly appear that others may take warning thereby and not incur the like Penalty or Suffering However let 's have fair dealing let 's not be unduely run upon diverted from our Plea and our Mouthes stopt so that the Court and People here cannot know what we suffer for No Free-man shall be taken or imprisoned or disseized of his Freehold or otherwise destroyed c. but by due process and order of Law This Magna Charta enjoyns where in the 29th Chapter 't is said No Free-man shall be taken or imprisoned c. but by the Law of the Land that is by due order of Law by due process according to Law The Law of England requires due process or proceeding from the very first Arrest taking and imprisoning to the very end and execution of the same Therefore the first Arrest Imprisoning and Committing us ought to be known and understood whether it was in due Manner and course of Law Yea or Nay Let us have our Mittimus read we expect it 't is granted and promised us by the Mayor and others indifferent A little respit in expectation of the Mittimus But the a R. Recorder seemed greatly offended at the Prisoners urging this and at the Mayor and Justices assenting to it G.W. Seeing that the Law is tender of English mens Liberties as that no Freeman shall be taken or imprisoned c. without due proceeding in Law c. 'T is but meet and reasonable that the Court and People here should understand what capacity and repute we are under among our Neighbours that is whether as Freemen of England and of any Repute among our Neighbours or as Bond-slaves Rogues or Vagrants Renegado's c. Hear what our Neighbours say of us we desire their Certificates may be read R. What have we to do with your Certificates wiâ—l any Swear to them that they are true ones G.W. They are real Certificates pray let them be read here they are R. We do not know but that you might make them your selves in Prison G.W. They are no Fictions Pray read them or let them be read they are from Persons of Credit and Repute as Common-Council men Deputy Constables Church-Wardens and others R. They shall not be read G.W. We beg they may be read Look upon this Certificate here 's the Persons own Different Hands to it it may tend to inform the Court and to remove Suspition and Jealousies concerning us But this would not be granted the Prisoners G.W. Seeing our Certificates may not be read nor suffered to be read which is but hard measure now let our Mittimus be produced several expecting the Keeper had sent for it Pray let us have our Mittimus produced and read R. We have it not the Goaler has it G.W. Where is it Keeper produce it thou hadst it R. to the Prisoner No doubt you have a Copy G.W. Yes we have May I read it I crave Liberty of the Court to read it that the Court may understand what we are committed for and to answer to that this Court is to take Judicial Cognizance of c. Court The Justices asked the Question from one to another to have it read generally assenting thereunto as being of the Mind it ought to be read Justice Briggs I am of the Mind it should be read What say you Mr. Bendich J. Bendich Yes truly I am of the mind it should be read J. Briggs Pray speak to Mr. Mayor which was done Mayor to the Recorder Sir the Justices are agreed it should be read R. Turning himself towards them as one greatly offended that the Mittimus should be read G.W. It concerns the Court to let us have our Mittimus read I am ready to read the Copy seeing it may not be otherwise produced and read Shall I read We expect that Justice from the Court that it should be read R. Let them read it then I am not ashamed of it then read the other also for you have them both Court You may read it G.W. Now we have the leave of the Court I hope you 'l keep to it Observe it 't is a true Copy The Mittimus read which followeth The Mittimus viz. City and County of Norwich WHereas George Whitehead of the Parish of St Buttolph in London Grocer and Thomas Burr of Ware in the County of Hartford Maulster have this day assembled together with several other Persons in Disturbance of the publick Peace and against the Laws of this Realm and being required to find Sureties for their respective appearance at the next general-General-Sessions of the Peace Fra. Bacon to be holden for the said City and County to answer the Premisses which they refused so to do These are
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
viz. Imprisonment and Fines for one pretended Offence Let the following Ciâ—ation being a Copy of one of his Warrants for leavying the Fines be compared with his Warrant of Commitment before cited both which relates to the said Meeting heâ—d the 21st day of March so called 1679. City and County of Norwich FOrasmuch as Thomas Haward of the Parish of St Peters Promountergate in Norwich aforesaid Worstead Weaver doth stand lawfully Convicted before me Francis Bacon Esquire Justice of Peace for the City and County aforesaid for being present with divers other Persons at a Conventicle holden upon Sunday the One Twentieth day of March last past in the House of John Defrance in the Parish of St Gregory in Norwich aforesaid School-Masâ—er under colour or pretence of the Exercise of Religion in other manner than according to the Lyturgy and Practice of the Church of England and against the Statute made in the Two and Twentieth Year of our present King's Reign to prevent and suppress Seditious Conventâ—cles Fr. Bacon for which he the said Thomas Haward is fined by me the said Francis Bacon for his second Offence ten Shillings according to the said Statute And whereas George Whitehead of Hounditch in London Grocer and Thomas Burr of Ware in Hartfordshire Manlster do also stand severally Convicted before me the said Francis Bacon for taking upon themselves severally to teach in the said Conventicle whereby they have severally forfeited by the said Act for this their first Offence Twenty Pounds a piece Now for that I the said Fran is Bacon â—o in my Judgment think the said George Wâ—…tehead and Thoma Burr unable to pay their resâ—ective Forfâ—itures These are therefore to Authorize you and in the King's Maâ—…sties Name to require you forthwith to go to the dwelling House of the said Thomas Haward and demand the sum of ten Shillings for his said second Offence and ten Pounds being the Moyety of twenty Founds of the said George Whiteheads Forfeiture and charged upon him by reason of the said George Whiteheads Poverty And if the said Thomas Haward shall refuse to paâ— the saeme or deny upon your demand to open his Doors for the Execution of this Warrant then to break them open and enter into his House and leavy the said sum of ten Pounds and ten Shâ—…ings by distress and sale of the Goods and Chattels of the said Thomas Haward and the Moneys so leavied deliver and â—ay unto me the said Francis Bacon to be by me distributed according to the said Statute and for your so doing this shall be your Warrant and therefore in the diligent Execution hereof fasl not at your Peril Given under my Hand and Seal the first day of April Anno Dom. 1680. To the Constables of the Ward of North Coniesford in Norwich aforesaid and to either of them and to his and their Assistant and Assistants Exceptions against the late Recorder's requiring the Oath of Allegiance of George Whitehead and Thomas Burr Prisoners both when first committed and in Court and his late Commitment from Sessions 1 st AS to the late Recorder's pretended tender of the Oath of Allegiance to the said Prisoners before their first Commitment the Law did not give him Power thereunto they not being under those precedent Causes and Circumstances prescribed in the Statute in that case 7 Jac. c. 6. Dalt fol. 94 95 that is as standing Indicted or Convicted or complained of by the respective Officers of their Neâ—ghbourhood as therein mentioned nor was he any such Jâ—stice oâ— Peace near a joynâ—ng to the places of the said Prisoners dwellings as the Law also directethâ— but on the contrary the Pâ—isoners Nâ—ighbours both certain Officers and other Credible Persons have gâ—ven Certificates and Testimony on their behalf that they have never been accounted nor reputed Jesuits nor Papists nor Popishly affected 2 dly His first requiring the Oath of the said Prisoners being made void and reverst by the late Order of Sessions discharging the Prisoners of the matters contained in their Mittimus and Warrant is thereby made no tender being one of those matters contained in the said Warrant whereof the Prisoners are discharged 3 dly His putting the said Oath De Novo that is for a first tender in the Qâ—arter-Session to the said Prisoners appears Contra sormam Statuti agaâ—nst the form of the Statute and order of Law prescribed and limitted both in the 3 Jac. 4. even in Relation to Popish Recusants and 7 Jac. 6. more general whereby the first tender of the said Oath is not directed to be made in one Quarter-Sessions and the second in another but contrariwise the fiâ—st tender out of Sessions and a Commitment of the Persons refusing to Goal until the next Assize or general Quarter-Sessions where the said Oath shall be again required which again relates to the second tender in open Assize or Sessions after the first out of Sessions see 3 Jac. 4. to which agrees the Statute of the 7 Jac. 6. in relation to the first tender being made out of Sessions Dalt fol. 77. and fol. 209. and the second in Sessions in these Words viz Where the said Oath shall be again in the said open Sessions required c. Which again likewise follows the Commitment of the party for refusing on the first tender made out of Sessions as the Law directs 4 thly Also his ordering the said Prisoners to be committed from Sessions to the common Goal there to remain till next Quarter-Sessions for not accepting his De Novo tender in Sessions appears Illegal and contrary to the form of the Statutes before-mentioned and course of proceeding thereby prescribed and limitted See the Judgment of Council ‖ i.e. M. Smith in that case also concerning the third Warrant which is that from Sessions in these Words viz. I conceive the third Warrant is not good in the Commitment for as 't is true that Act says The Offender shall incur a Praemunire yet it doth not in the least give them any Power to commit the Person and therefore and for that it s without Bail or Mainprize and to a certain time and not leaving it to the Law I conceive it is against Law c. I believe the Law-makers intended only Romish Recusants 5 thly The Statute of the 3 Jac. 4. Entituled An Act for the discovering and repressing of Popish Recusants Upon which that of the 7 Jac. 6. is grounded as also the penalty of Praemunire mentioned in the 16 of R. 2. appears to be made and only intended against Popish Recusants and such Agents as were Enemies to the King his Crown and Regalty which the said Prisoners are not 1. From the Preamble concerning the Powder-Plot 2. From the Nature of the Oath and those Treasonable Practices and Principles thereby renounced and abjured 3. From the Statute of Praemunire in the 16 R. 2. †Entituled Praemunire for purchasing Bulls from Rome and the Penalty thereof being made against those Agents
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