Selected quad for the lemma: peace_n
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A44360
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Due order of law and justice pleaded against irregular & arbitrary proceedings in the case and late imprisonment of George Whitehead and Thomas Burr in the city and county gaol of Norwich, from the 21st day of the 1st moneth called March, 1679, to the 12th day of the 5th moneth, called July, 1680 being an impartial account of the most material passages and letters to the magistrates relating to the said proceedings with the prisoners above said : wherein the people called Quakers are vindicated and cleared from popery : published for information and caution on the behalf of true Protestants and English-mens birth-rights.
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Hookes, Ellis, d. 1681.
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1680
(1680)
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Wing H2660; ESTC R7941
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74,567
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109
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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
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