Chapter XXXIV: Appendix: to VOL. I (2)

F. H. I shall: in the mouth of two or three witnesses every truth
is confirmed; and we never denied to give, and still are ready
to give evidence for the king wherein we are concerned, and in
any other matter for the ending of strife between man and man in
truth and righteousness, and this answers the substance of the
law.

Judge. Is this a good answer, think you? whether to be given with
or without oath: the law requires an oath.

F. H. Still evidence is and may be given in truth, according
to the substance of the law, so that no detriment cometh unto
any party, seeing that true testimony may be borne without an
oath; and I did not speak of changing the law: yet seeing we
never refused giving testimony, which answereth the intent and
substance of the law, I judged it was reasonable to receive our
testimony, and not to expose us to such sufferings, seeing we
scrupled an oath only upon a conscientious account, in tenderness
of conscience, for fear of breaking the command of Christ, the
Saviour of the world, which if we do, there is none of you able
to plead our cause for us with him.

Judge. But why do not you go to church, but meet in houses and
private conventicles, which the law forbids.

F. H. We meet together only for the worship of the true God
in Spirit and Truth, having the primitive Christians for our
example, and to no other end, but that we may be edified, and God
glorified; and when two or three are met together in the name of
Christ, and he in the midst of them, there is a church.

Judge. That is true: but how long is it since you have been at
church? Or will you go to the church the law doth allow of? Give
me some reasons why you do not go.

F. H. I have many to give thee, if thou hast patience to hear me:
first, God dwells not in temples made with men’s hands. Secondly,
the parish house hath been a temple for idols, to wit, for the
mass and the rood; and I dare have no fellowship with idols, nor
worship in idols’ temples; for what have we to do with idols,
their temples and worship?

Judge. Were there not houses called the houses of God, and
temples?

F. H. Yes, under the law; but the Christians, who believed in
Christ, separated from these, (and the temple was made and left
desolate,) and from the Gentiles’ temples too, and met together
in houses, and broke bread from house to house; and the church
was not confined then to one particular place, neither is it now;
many more things I have to say: the judge interrupted.

Judge. Will you answer to your indictment?

F. H. I know not what it is, I never heard it, though I have
often desired a copy.

Judge. Clerk, read it.

So he read it: how that F. H. had wilfully, obstinately, and
contemptuously denied to swear when the oath was tendered.

F. H. I deny it.

Judge. What do you deny?

F. H. The indictment.

Judge. Did you not deny to swear? And the indictment convicts you
that you did not swear.

F. H. I gave unto the court the substance of the oath, as you all
know. Secondly, I told you I did not deny it out of obstinacy or
wilfulness, neither in contempt of the king’s law or government;
for my will would rather choose my liberty, than bonds; and I am
sensible it is like to be a great damage to me; I have a wife
and children, and some estate, which we might subsist upon, and
do good to others, and I know all this lies at stake; but if it
were my life also, I durst not but do as I do, lest I should
incur the displeasure of God; and do you judge I would lose my
liberty wilfully, and suffer the spoiling of my estate, and the
ruining of my wife and children in obstinacy and wilfulness?
Surely nay.

Judge. Jury, you see he denies the oath, and he will not plead to
the indictment, only excepts against it because of the form of
words, but you see he will not swear, and yet he says he denies
the indictment, and you see upon what ground.

And then they called the jailer to witness and swear that at the last assizes F. H. did refuse, &c. which he did; and the jury, without going from the bar, gave in their verdict, guilty, and then the court broke up that night.

The next day towards evening, when they had tried all the prisoners, Francis was brought to the bar to receive his sentence.

Judge stood up and said, ‘Come, the indictment is proved against
you, what have you to say why sentence shall not be given?’

F. H. I have many things to say, if you will hear them. First, as
I have said, I denied not out of obstinacy or wilfulness, but was
willing to testify the truth in this matter of obedience, or any
other matter wherein I was concerned. Secondly, because swearing
was directly against the command of Christ. Thirdly, against the
doctrine of the apostle. Fourthly, even some of your principal
pillars of the church of England; as bishop Usher, some time
primate of Ireland, he said in his works, the Waldenses did deny
all swearing in their age, from that command of Christ and the
apostle James, and it was a sufficient ground; and Dr. Gauden,
late bishop of Exeter, in a book of his I lately read, he cited
very many ancient fathers, to show, that the first three hundred
years Christians did not swear, so that it is no new doctrine.

To which the court seemed to give a little ear, and said nothing,
but talked one to another, and Francis stood silent, and then the
judge said,

Judge. Sure you mistake.

F. H. I have not the books here.

Judge. Will you say upon your honest word they denied all
swearing?

F. H. What I have said is true.

Judge. Why do you not come to church, and hear service, and be
subject to the law, and to every ordinance of man for the Lord’s
sake?

F. H. We are subject, and for that cause we do pay taxes,
tribute, and custom, and give unto Cæsar the things that are his,
and unto God the things that are his, to wit, worship, honour,
and obedience; and if thou mean the parish assembly, I tell thee
faithfully, I am persuaded, and upon good ground, their teachers
are not the ministers of Christ, neither their worship the
worship of God.

Judge. Why; it may be for some small things in the service, you
reject it all.

F. H. First, it is manifest they are time-servers, one while
preaching up that for divine service to people, that another
while they cry down, as popish, superstitious and idolatrous;
and that which they have preached up twenty years together, made
shipwreck of all in a day; and now again call it divine, and
would have all compelled to that themselves once made void.

Judge. Why; never since the king came in?

F. H. Yes, the same men that preached it down once, now cry it
up; for they are so unstable and wavering, that we cannot believe
they are the ministers of Christ. Secondly, they teach for hire,
and live by forced maintenance, and would force a faith upon
men, contrary to Christ and his apostle’s rule, who would have
every one persuaded in their own minds, and said, whatsoever is
not of faith is sin; and yet they say, faith is the gift of God;
and we have no such faith given; but yet they would force theirs
upon us, and because we cannot receive it, they cry, you are not
subject to authority and the laws, and nothing but confiscations,
imprisonment and banishment is threatened, and this is their
greatest plea; I could mention more particulars; then the judge
interrupted.

Judge. Well, I see you will not swear, nor conform, nor be
subject, and you think we deal severely with you, but if you will
be subject, we should not need.

F. H. I do so judge indeed, that you deal severely with us for
obedience to the commands of Christ; I pray thee canst thou show
me how any of those people, for whom the act was made, have been
proceeded against by this statute, though I envy no man’s liberty.

Judge. Oh yes, I can instance you many up and down the country
that are premunired, I have done it myself, pronounced sentence
against divers.

F. H. What, against Papists?

Judge. No.

F. H. What, against the Quakers? So I have heard indeed; though
then that statute was made against Papists, thou lettest them
alone, and executest it against the Quakers.

Judge. Well, you will meet in great numbers, and do increase, but
there is a new statute will make you fewer.

F. H. Well, if we must suffer, it is for Christ’s sake, and for
well doing.

Francis then being silent, the judge pronounced the sentence, but
spake so low, that the prisoner, though near to him, could scarce
hear it.

The sentence was, You are put out of the king’s protection, and
the benefit of the law, your lands are confiscated to the king
during your life; and your goods and chattels for ever, and you
to be prisoner during your life.

F. H. A hard sentence for my obedience to the commands of Christ;
the Lord forgive you all.

So he turned from the bar; but the judge speaking, he turned
again, and many more words passed to the same purpose, as before:
at last, the judge rose up and said.

Judge. Well, if you will yet be subject to the laws, the king
will show you mercy.

F. H. The Lord hath showed mercy unto me, and I have done nothing
against the king, nor government, nor any man, and blessed be
the Lord, and therein stands my peace; for it is for Christ’s
sake I suffer, and not for evil doing. And so the court broke up.
The people were generally moderate, and many were sorry to see
what was done against him; but Francis signified how contented
and glad he was, that he had any thing to loose for the Lord’s
precious Truth, of which he had publicly borne testimony, and
that he was now counted worthy to suffer for it.

This he did cheerfully, and died in bonds, after above four years imprisonment, as may be related in its due time. He was a man of learning, and a great writer among his fellow believers; insomuch, that during his confinement he wrote not only several edifying epistles to exhort them to constancy and steadfastness, in the doctrine of Truth, but also some books to refute the opposers of it.

We have here seen how the judge said, there is a new statute which will make you fewer. This statute bore the title of an act to prevent and suppress seditious conventicles. And though the act made two years before did extend to banishment, yet that punishment was renewed, and expressed more at large in this, which was as followeth:

Whereas an act made in the five and thirtieth year of the reign
of our late sovereign lady queen Elizabeth, intitled an act to
retain the queen’s majesty’s subjects in their due obedience,
hath not been put in due execution by reason of some doubt of
late made, whether the said act be still in force; although it be
very clear and evident, and it is hereby declared, that the said
act is still in force, and ought to be put in due execution:

II. For providing therefore of further and more speedy remedies
against the growing and dangerous practices of seditious
sectaries, and other disloyal persons, who under pretence of
tender consciences, do at their meetings contrive insurrections,
as late experience hath showed;

III. Be it enacted by the king’s most excellent majesty, by and
with the advice and consent of the lords spiritual and temporal,
and commons in this present parliament assembled, and by the
authority of the same, that if any person of the age of sixteen
years or upwards, being a subject of this realm, at any time
after the 1st day of July, which shall be in the year of our
Lord, one thousand six hundred sixty and four, shall be present
at any assembly, conventicle or meeting, under colour or pretence
of any exercise of religion, in other manner than is allowed by
the liturgy or practice of the church of England in any place
within the kingdom of England, dominion of Wales, and town of
Berwick-upon-Tweed; at which conventicle, meeting, or assembly,
there shall be five persons or more assembled together, over
and above those of the same household; then it shall and may be
lawful to and for any two justices of the peace of the county,
limit, division or liberty wherein the offence aforesaid shall
be committed, or for the chief magistrate of the place where
such offence aforesaid shall be committed, (if it be within a
corporation where there are not two justices of the peace,) (2)
and they are hereby required and enjoined upon proof to them or
him respectively made of such offence, either by confession of
the party, or oath of witness, or notorious evidence of the fact,
(which oath the said justices of the peace, and chief magistrate
respectively, are hereby empowered and required to administer,)
to make a record of every such offence and offences under their
hands and seals respectively; (3) which record so made, as
aforesaid, shall to all intents and purposes be in law taken
and adjudged to be a full and perfect conviction of every such
offender for such offence: and thereupon the said justices and
chief magistrate respectively shall commit every such offender
so convicted, as aforesaid, to the jail or house of correction,
there to remain without bail or mainprize, for any time not
exceeding the space of three months, unless such offender shall
pay down to the said justices or chief magistrate such sum of
money not exceeding five pounds, as the said justices or chief
magistrate, (who are hereby thereunto authorized and required,)
shall fine the said offender at, for his or her said offence;
which money shall be paid to the church wardens for the relief of
the poor of the parish where such offender did last inhabit.

IV. And be it further enacted by the authority aforesaid, that if
such offender so convicted, as aforesaid, shall at any time again
commit the like offence contrary to this act, and be thereof in
manner aforesaid convicted, then such offender so convicted of
such second offence, shall incur the penalty of imprisonment in
the jail or house of correction, for any time not exceeding six
months, without bail or mainprize, unless such offender shall
pay down to the said justices or chief magistrate, such sum of
money, not exceeding ten pounds, as the said justices or chief
magistrate, (who are thereunto authorized and required, as
aforesaid,) shall fine the said offender at, for his or her said
second offence, the said fine to be disposed in manner aforesaid.

V. And be it further enacted by the authority aforesaid, that if
any such offender so convicted of a second offence contrary to
this act in manner aforesaid, shall at any time again commit the
like offence contrary to this act, then any two justices of the
peace, and chief magistrate, as aforesaid, respectively, shall
commit every such offender to the jail, or house of correction,
there to remain without bail or mainprize until the next general
quarter sessions, assizes, jail-delivery, great sessions, or
sitting of any commission of Oyer and Terminer in the respective
county, limit, division or liberty which shall first happen; (2)
when and where every such offender shall be proceeded against by
indictment for such offence, and shall forthwith be arraigned
upon such indictment, and shall then plead the general issue of
not guilty, and give any special matter in evidence, or confess
the indictment: (3) and if such offender proceeded against, shall
be lawfully convicted of such offence, either by confession or
verdict, or if such offender shall refuse to plead the general
issue, or to confess the indictment, then the respective
justices of the peace at their general quarter sessions, judges
of assize and jail-delivery, justices of the great sessions at
the great sessions, and commissioners of Oyer and Terminer at
their sitting, are hereby enabled and required to cause judgment
to be entered against such offender, that such offender shall
be transported beyond the seas to any of his majesty’s foreign
plantations, (Virginia and New England only excepted,) there to
remain seven years: (4) and shall forthwith under their hands
and seals make out warrants to the sheriff or sheriffs of the
same county where such conviction or refusal to plead or to
confess, as aforesaid, shall be, safely to convey such offender
to some port or haven nearest or most commodious to be appointed
by them respectively; and from thence to embark such offender
to be safely transported to any of his majesty’s plantations
beyond the seas, as shall be also by them respectively appointed,
(Virginia and New England only excepted:) (5) whereupon the said
sheriff shall safely convey and embark, or cause to be embarked
such offender, to be transported, as aforesaid, under pain of
forfeiting for default of so transporting every such offender,
the sum of forty pounds of lawful money, the one moiety thereof
to the king, and the other moiety to him or them that shall
sue for the same in any of the king’s courts of record, by
bill, plaint, action of debt, or information; in any of which
no wager of law, essoign or protection shall be admitted: (6)
and the said respective court shall then also make out warrants
to the several constables, headboroughs, or tithingmen of the
respective places where the estate real or personal of such
offender so to be transported shall happen to be, commanding
them thereby to sequester into their hands the profits of the
lands, and to distrain and sell the goods of the offender so to
be transported, for the reimbursing of the said sheriff all such
reasonable charges as he shall be at, and shall be allowed him
by the said respective court for such conveying, or embarking of
such offender so to be transported, rendering to the party, or
his or her assigns, the overplus of the same, if any be, unless
such offender, or some other on the behalf of such offender so to
be transported, shall give the sheriff such security as he shall
approve of, for the paying all the said charges unto him.

VI. And be it further enacted by the authority aforesaid, that
in default of defraying such charges by the parties to be
transported, or some other in their behalf; or in default of
security given to the sheriff, as aforesaid, it shall and may
be lawful for every such sheriff to contract with any master of
a ship, merchant, or other person, for the transporting of such
offender at the best rate he can: (2) and that in every such
case it shall and may be lawful for such persons so contracting
with any sheriff for transporting such offender, as aforesaid,
to detain and employ every such offender so by them transported,
as a labourer to them or their assigns, for the space of five
years, to all intents and purposes, as if he or she were bound
by indentures to such person for that purpose: (3) and that the
respective sheriffs shall be allowed or paid from the king, upon
their respective accompt in the exchequer, all such charges by
them expended, for conveying, embarking and transporting of such
persons, which shall be allowed by the said respective courts
from whence they received their respective warrants, and which
shall not have been by any of the ways aforementioned paid,
secured, or reimbursed unto them, as aforesaid.

VII. Provided always, and be it further enacted, that in case the
offender so indicted and convicted for the said third offence,
shall pay into the hands of the register or clerk of the court
or sessions where he shall be convicted, (before the said court
or sessions shall be ended,) the sum of one hundred pounds, that
then the said offender shall be discharged from imprisonment and
transportation, and the judgment for the same.

VIII. And be it further enacted, that the like imprisonment,
indictment, arraignment and proceedings shall be against every
such offender, as often as he shall again offend after such
third offence; nevertheless is dischargeable and discharged, by
the payment of the like sum as was paid by such offender for
his or her said offence next before committed, together with
the additional and increased sum of one hundred pounds more
upon every new offence committed; (2) the said respective sums
to be paid as aforesaid, and to be disposed as followeth, viz.
the one moiety for the repair of the parish church or churches,
chapel or chapels of such parish within which such conventicle,
assembly, or meeting shall be held; and the other moiety to the
repair of the highways of the said parish or parishes, (if need
require,) or otherwise for the amendment of such highways as the
justices of peace at their respective quarter sessions shall
direct and appoint. (3) And if any constable, headborough or
tithingman, shall neglect to execute any the said warrants made
unto them for sequestering, distraining, and selling any of the
goods and chattels of any offender against this act, for the
levying such sums of money as shall be imposed for the first or
second offence, he shall forfeit for every such neglect, the sum
of five pounds of lawful money of England, the one moiety thereof
to the king, and the other moiety to him that shall sue for the
same in any of the king’s courts of record, as is aforesaid. (4)
And if any person be at any time sued for putting in execution
any of the powers contained in this act, such person shall and
may plead the general issue, and give the special matter in
evidence; (5) And if the plaintiff be nonsuited, or a verdict
pass for the defendant thereupon, or if the plaintiff discontinue
his action, or if upon demurrer, judgment be given for the
defendant, every such defendant shall have his or their treble
costs.

IX. And be it further enacted, that if any person against whom
judgment of transportation shall be given in manner aforesaid,
shall make escape before transportation, or being transported
as aforesaid, shall return unto this realm of England, dominion
of Wales, and town of Berwick-upon-Tweed, without the special
license of his majesty, his heirs and successors, in that behalf
first had and obtained, that the party so escaping or returning,
shall be adjudged a felon, and shall suffer death as in case of
felony, without benefit of clergy, (2) and shall forfeit and lose
to his majesty all his or her goods and chattels forever; and
shall further lose to his majesty all his or her lands, tenements
and hereditaments for and during the life only of such offender,
and no longer: and that the wife of any such offender by force of
this act, shall not lose her dower, nor shall any corruption of
blood grow, or be by reason of any such offence mentioned in this
act; but that the heir of every such offender by force of this
act, shall and may after the death of such offender, have and
enjoy the lands, tenements and hereditaments of such offenders,
as if this act had not been made.

X. And for better preventing of the mischiefs which may grow
by such seditious and tumultuous meetings, under pretence of
religious worship, (2) Be it further enacted by the authority
aforesaid, that the lieutenants or deputy-lieutenants, or any
commissioned officers of the militia, or any other of his
majesty’s forces, with such troops or companies of horse or
foot; and also the sheriffs and justices of peace, and other
magistrates and ministers of justice, or any of them-jointly or
severally, within any the counties or places within this kingdom
of England, dominion of Wales, or town of Berwick-upon-Tweed,
with such other assistance as they shall think meet, or can
get in readiness with the soonest, on certificate made to
them respectively under the hand and seal of any one justice
of the peace, or chief magistrate, as aforesaid, of his
particular information or knowledge of such unlawful meetings
or conventicles held or to be held in their respective counties
or places, and that he, (with such assistance as he can get
together, is not able to suppress or dissolve the same,) shall
and may, and are hereby required and enjoined to repair unto the
place where they are so held, or to be held, and by the best
means they can to dissolve and dissipate, or prevent all such
unlawful meetings, and take into their custody such of those
persons so unlawfully assembled as they shall judge to be the
leaders and seducers of the rest, and such others as they shall
think fit to be proceeded against according to law for such their
offences.

XI. And be it further enacted by the authority aforesaid, that
every person who shall wittingly and willingly suffer any such
conventicle, unlawful assembly, or meeting aforesaid, to be held
in his or her house, outhouse, barn or room, yard or backside,
woods or grounds, shall incur the same penalties and forfeitures
as any other offender against this act ought to incur, and be
proceeded against in all points, in such manner as any other
offender against this act ought to be proceeded against.

XII. Provided also, and be it enacted by the authority aforesaid,
that if any keeper of any jail or house of correction, shall
suffer any person committed to his custody for any offence
against this act, to go at large, contrary to the warrant of his
commitment according to this act, or shall permit any person who
is at large, to join with any person committed to his custody by
virtue of this act, in the exercise of religion, differing from
the rites of the church of England, then every such keeper of a
jail or house of correction, shall for every such offence forfeit
the sum of ten pounds, to be levied, raised, and disposed by such
persons and in such manner as the penalties for the first and
second offences against this act are to be levied, raised, and
disposed.

XIII. Provided always, that no person shall be punished for any
offence against this act, unless such offender be prosecuted for
the same within three months after the offence committed: (2) and
that no person who shall be punished for any offence by virtue of
this act, shall be punished for the same offence by virtue of any
other act or law whatsoever.

XIV. Provided also, and be it enacted, that judgment of
transportation shall not be given against any feme covert, unless
her husband be at the same time under the like judgment, and
not discharged by the payment of money as aforesaid; but that
instead thereof, she shall by the respective court be committed
to the jail or house of correction, there to remain without bail
or mainprize, for any time not exceeding twelve months, unless
her husband shall pay down such sum, not exceeding forty pounds,
to redeem her from imprisonment, as shall be imposed by the said
court, the said sum to be disposed by such persons, and in such
manner, as the penalties for the first and second offence against
this act are to be disposed.

XV. Provided also, and be it enacted by the authority aforesaid,
that the justices of the peace, and the chief magistrate
respectively empowered as aforesaid to put this act in execution,
shall and may, with what aid, force, and assistance they shall
think fit, for the better execution of this act, after refusal or
denial, enter into any house, or other place, where they shall be
informed any such conventicle as aforesaid, is or shall be held.

XVI. Provided, that no dwelling-house of any peer of this realm,
whilst he or his wife shall be there resident, shall be searched
by virtue of this act, but by immediate warrant from his majesty
under his sign manual, or in the presence of the lieutenant, or
one of the deputy lieutenants, or two justices of the peace,
whereof one to be of the quorum of the same county or riding: (2)
nor shall any other dwelling-house of any peer or other person
whatsoever, be entered into with force by virtue of this act, but
in the presence of one justice of the peace, or chief magistrate
respectively, except within the city of London, where it shall
be lawful for any such other dwelling-house to be entered into
as aforesaid, in presence of one justice of the peace, alderman,
deputy alderman, or any one commissioner for the lieutenancy for
the city of London.

XVII. Provided also, and be it enacted by the authority
aforesaid, that no person shall by virtue of this act be
committed to the house of correction, that shall satisfy the said
justices of the peace, or chief magistrate respectively, that he
or she, (and in case of a feme covert, that her husband,) hath an
estate of freehold, or copyhold, to the value of five pounds per
annum, or personal estate to the value of fifty pounds; any thing
in this act to the contrary notwithstanding.

XVIII. And in regard a certain sect called Quakers, and other
sectaries, are found not only to offend in the matters provided
against by this act, but also obstruct the proceedings of justice
by their obstinate refusal to take oaths lawfully tendered unto
them in the ordinary course of law; (2) Therefore be it further
enacted by the authority aforesaid, that if any person or persons
being duly and legally served with process, or other summons, to
appear in any court of record, except courtleets, as a witness,
or returned to serve of any jury, or ordered to be examined
upon interrogatories, or being present in court, shall refuse
to take any judicial oath legally tendered to him by the judge
or judges of the same court, having no legal plea to justify
or excuse the refusal of the same oath; (3) Or if any person
or persons being duly served with process, to answer any bill
exhibited against him or them in any court of equity, or any suit
in any court ecclesiastical, shall refuse to answer such bill
or suit upon his or their corporal oath, in cases where the law
requires such answer to be put in upon oath; or being summoned to
be a witness in any such court, or ordered to be examined upon
interrogatories, shall for any cause or reason, not allowed by
law, refuse to take such oath, as in such cases is required by
law; (4) that then, and in such case, the several and respective
courts wherein such refusal shall be made, shall be, and are
hereby enabled to record, enter, or register such refusal, which
record or entry shall be, and is hereby made a conviction of such
offence; (5) and all and every person and persons so as aforesaid
offending, shall for every such offence incur the judgment and
punishment of transportation in such manner as is appointed by
this act for other offences.

XIX. Provided always, that if any the person or persons aforesaid
shall come into such court, and take his or their oath in these
words:

I do swear that I do not hold the taking of an oath to be
unlawful, nor refuse to take an oath on that account.

XX. Which oath the respective court or courts aforesaid, are
hereby authorized and required forthwith to tender, administer,
and register before the entry of the conviction aforesaid, (2)
or shall take such oath before some justice of the peace, who
is hereby authorized and required to administer the same, to be
returned into such court, (3) such oath so made shall acquit him
or them from such punishment; any thing herein to the contrary
notwithstanding.

XXI. Provided always, that every person convicted as aforesaid
in any courts aforesaid, (other than his majesty’s court of
king’s bench, or before the justices of assize, or general
jail-delivery,) shall by warrant containing a certificate of
such conviction under the hand and seal of the respective judge
or judges before whom such conviction shall be had, be sent to
some one of his majesty’s jails in the same county where such
conviction was had, there to remain without bail or mainprize
until the next assizes, or general jail-delivery, (2) where, if
such person so convicted shall refuse to take the oath aforesaid,
being tendered unto him by the justice or justices of assize or
jail-delivery, then such justice or justices shall cause judgment
of transportation to be executed in such manner as judgment of
transportation by this act is to be executed: but in case such
person shall take the said oath, then he shall thereupon be
discharged.

XXII. Provided always, and be it enacted by the authority
aforesaid, that if any peer of this realm shall offend against
this act, he shall pay ten pounds for the first offence, and
twenty pounds for the second offence, to be levied upon his goods
and chattels by warrant from any two justices of the peace, or
chief magistrate of the place or division where such peer shall
dwell: (2) and that every peer for the third, and every further
offence against the tenour of this act, shall be tried by his
peers, and not otherwise.

XXIII. Provided also, and be it further enacted by the authority
aforesaid, that this act shall continue in force for three years
after the end of this present session of parliament; and from
thence forward to the end of the next session of parliament after
the said three years, and no longer.

A learned man at London, of what persuasion I know not, published a little book in relation to this act, wherein he showed from the laws of England, the absurdity of it: since all religious acts, exercised by six persons, not according to the formality of the church of England, were forbidden; and that at this rate it might be reckoned a transgression, if a woman being in travail, and in danger of life, one of the company said a prayer; or if any one spoke something to comfort the near relations of a deceased person; or prayed for the health or happiness of a young married couple, &c. by which it might happen, that some by the malice of their enemies, might not only incur imprisonment for three months, but also by virtue of the act of banishment, might be condemned to transportation. That this was not without danger, did appear sufficiently by what judge Orlando Bridgman said at Hertford to the jury, viz. ‘You are not to expect a plain punctual evidence against them for any thing they said or did at their meeting; for they may speak to one another, though not with or by articular sound, but by a cast of the eye, or a motion of the head or foot, or gesture of the body. So that if you find or believe in your hearts that they were in the meeting under colour of religion in their way, though they sat still only and looked upon each other, it was an unlawful meeting.’ At this rate the jurymen, who ought to be impartial judges, or mediators, were swayed, so that without fear they might find the Quakers that were met together guilty of transgressing the law.

Now, since at that time they were resolved to banish the Quakers, so called, George Whitehead published a little book, in which he showed the unreasonableness of the persecutors, and also strengthened his friends with solid arguments against the charge of stiffneckedness, answering some specious objections; amongst the rest, that the Quakers might keep small meetings, and so not fall under the lash of the law; for if they did not meet above five in number, they kept without the reach of the law; and by keeping private meetings they might also acquit their consciences before God. But to this G. Whitehead answered, that it might have been objected to the prophet Daniel, that he might have prayed secretly, and not with open windows and thrice a day, after king Darius had signed the decree, that whosoever should ask a petition of any god or man for thirty days, save of the king, he should be cast into the den of lions; but that Daniel, notwithstanding this decree, had continued to pray to God as before. ‘Since then,’ said G. Whitehead, ‘our meetings are kept in obedience to the Lord God, and according to the freedom he hath given us, we may not leave off our testimony for God in that case; but we must be faithful to him, whatever we suffer on that account. For neither the threatenings of men, nor their severity or cruelty acted against us, how far soever it may be extended, can make us to forsake the Lord in not keeping our assemblies, or to be ashamed of Christ before men, lest hereafter he be ashamed of us before his Father which is in heaven.’ Besides, he showed how unreasonable it was to incite the jury on an ill-grounded suspicion, without leaving them the liberty of their own judgment: and the judges he showed their duty from the law, and Magna Charta. He also showed how unequal it was, that soldiers, who abused his friends in their meetings, should be called as witnesses against them; and that they should be locked up with thieves and felons, since this was contrary to the right of a free-born Englishman. But this representation of G. Whitehead was slighted, since they were resolved to go on with banishing of the Quakers, and to transport them to the West Indies; which however, according to the ancient laws, might not be done to a free-born Englishman against his mind. Josiah Coale about this time gave forth also a paper, being a warning to the king and both houses of parliament, to dissuade them from persecution. But this did not avail, for persecution went on.

In the month called August, eight of those called Quakers, viz. Francis Prior, Nicholas Lucas, Henry Feast, Henry Marshal, Jeremiah Hern, Thomas Wood, John Blendale, and Samuel Trahern, were tried at Hertford before judge Orlando Bridgman, already mentioned. The indictment contained, that they had been at an unlawful meeting under colour and pretence of religion; and the witnesses declared, that they had met together above the number of five, and were taken at such times, and such places; for they must have transgressed thrice before they could be condemned to banishment: but the witnesses declared also, that they neither heard them speak any words, nor saw them do any thing at their meeting, but sit still. The indictment having been delivered to the grand jury, they could not agree in their verdict; for there were some amongst them whose consciences would not give them leave to be accessary to this work of persecution; and therefore they brought in their verdict _ignoramus_. Now, though such a verdict as this ought not to be rejected, yet judge Bridgman standing up, and seeming to be angry, spoke to the jury after this manner: ‘My masters, what do you mean to do? Will you make a nose-of-wax of the law, and suffer the law to be baffled? Those that think to deceive the law, the law will deceive them. Why do not ye find the bill?’ To which one of the jury said, that it concerned them to be wary, and well satisfied in what they did, for they were upon men’s lives for ought they knew. ‘No,’ said the judge, ‘I desire not their lives, but their reformation:’ and then he gave the jury some directions, and he so coloured the matter, that they going out again soon returned, and found the bill.

Then four of the prisoners were called to the bar, their indictment read, and they asked, guilty, or not guilty; to which they answered, ‘Not guilty,’ and that they had transgressed no just law. ‘But,’ said the judge, ‘ye have transgressed this law, (having the act in his hand,) and ye have been twice convicted already upon record, and if ye are found guilty by the jury this time, I must pass the sentence of transportation upon you. Now, therefore ye shall see that we do not desire to strain the law to the highest severity; neither do I believe that it was the aim of the law-makers to be severe, but for conforming. If ye will promise that ye will not go, or be at any more such meetings, I will show you this favour, as to acquit you for what is past: this favour ye may receive before the jury is charged with you; but afterwards I cannot do it. And know also, if the jury for want of punctual evidence, should not find you guilty, yet if ye are taken again, ye will be in the same case ye now are in. What say you? Will ye promise to meet no more?’ To this the prisoners answered, they could promise no such thing. Then a jury was called, and the indictment read a second time, containing, that the prisoners had been at an unlawful meeting at such a time and place, the first, second, and third time. The witnesses being called, gave the same evidence as before; and then the judge said thus to the jury: ‘My masters, the jury, ye hear what evidence the witnesses give; how they took them at such times, at such places, which are places they use to meet in; and that they were above the number of five, besides the persons of the family where they met; and that they are twice convicted already upon record: and this is the third offence, which incurs the sentence of transportation, if ye find them guilty.’ Then he spoke these words which have been mentioned already, viz. ‘Ye are not to expect a plain punctual evidence against them for any thing they said or did at their meeting, &c. for dumb men may speak to one another, so as they may understand each other by signs: and they themselves say, that the worship of God is inward, in the spirit, and that they can discern spirits, and know one another in spirit. So that if ye find or believe in your hearts that they were in the meeting, under colour of religion in their way, though they sat still only, it was an unlawful meeting; and their use and practice not according to the liturgy of the church of England; for it allows and commands when people meet together in the church, that divine service shall be read, &c. And ye must find the bill; for ye must have respect to the meaning and intent of the law, which the king and parliament have in wisdom and policy made, not only against conventicles, but the words assembly and meeting were added; for we have had late experience of the danger of such meetings under colour of religion: and it is an easy matter at such meetings to conspire and consult mischief. Therefore the wisdom and policy of the king and parliament, lest they should be undermined, have made this law, which is not a law against conscience, for it doth not touch conscience at all, as I confess some other laws do, which enjoin coming to church, and some other things.’ This and more judge Bridgman spoke to the jury, to persuade them to bring the prisoners in guilty. And the jury being gone out, within the space of an hour returned, and their foreman said, that Nicholas Lucas, and the other three, were guilty.

What the judge had said, that they had had late experience of the danger of such meetings under colour of religion, was of no force at all; for it never had appeared that the Quakers in religious meetings did any thing else than the performing of their worship, though there were other evidences concerning the Fifth monarchy-men; but it was universally known that the Quakers had no part therein, nor joined with them in the least degree. It was also a very absurd saying of the judge, that this law did not touch conscience: for it was merely for conscience-sake that the Quakers frequented not the public service and liturgy of the church of England, and kept religious meetings by themselves. But the jury seemed well satisfied with what the judge had told them; and he having thus obtained his aim, read the prisoners’ names, and said to them, ‘What can ye say for yourselves, that judgment of transportation should not pass, or be given against you?’ To which they said, ‘We are innocent, and have transgressed no just law; if we must have that sentence, we give up our bodies freely into the hands of the Lord; the will of the Lord be done.’ ‘Have ye nothing more to say?’ said the judge. ‘Nothing, but that we are innocent,’ replied the prisoners, ‘we have wronged no man.’ ‘Then hearken to your sentence,’ said the judge. ‘Ye shall be transported beyond the seas, to the island of Barbadoes, there to remain seven years.’

Then Jeremiah Hern and Thomas Wood were called to the bar, and their indictment read, to which they pleaded, ‘Not guilty, but innocent;’ and Jeremiah said, he was no such person as the act mentioned, for plotting and contriving insurrections. Then the judge interrupting him, said, ‘You are a forward man, you have an estate;’ and so he caused him to be set by: and to Thomas Wood he said, ‘I hear a good report of you; consider what you do; I am sorry, seeing you have a good report among your neighbours, that you should be found guilty, which I fear you will if you put yourself upon trial: I am willing to show you favour; and it may be one man may fare the better for another.’ This reflected on Jeremiah, who, by the malice of one John King, had been falsely represented to the judge. Yet Jeremiah having shown how he had been wronged, the judge said, they should both partake of his favour, if they would but desire it, and this favour consisted in this, as he himself said, that he would wave the proceedings of the court, and give them till the next assizes, to consider better with themselves. ‘What say you, (thus he continued,) will ye have it deferred till the next assizes? for if the jury find the bill, you will be sent to Jamaica; ye must not all go to one place.’ To this the prisoners returned, ‘We have transgressed no law of God, nor wronged any man: we leave it to the court; we desire it not.’ ‘If you will not desire it,’ replied the judge, ‘I cannot, nor will do it.’

Then three other prisoners were brought to the bar, among whom was one John Reynolds, who, according to the deposition of the witnesses, had been within a yard of the door of the meeting-place, with his face from it. The judge then said, ‘God forbid that I should do any thing that is not right and just against my conscience; there is that which is written upon the wall before me, which puts me in mind, that I should not judge for man, but for God.’ Then turning to the jury, he spoke to them almost after the same manner, as he did concerning the other four prisoners: and to induce them to declare Reynolds, (who was taken but not in the meeting,) guilty, he spoke thus: ‘Suppose a man be killed in a house, and nobody saw him killed, but a man is met coming out of the house with a bloody knife in his hand, it is a very probable evidence that he is guilty of the murder. So though the witnesses do not say that they saw and took him in the meeting, yet they swore he was within a yard of the door with his face from the place where they usually met; and he hath been taken twice already, and convicted upon record. My masters, I leave it to you, go forth.’ Then a bailiff was called, and charged to provide the jury a room, and to let none speak with them, nor to let them have either bread, drink, or candle, till they brought in their verdict. The jury being gone out, soon agreed, and after they were returned said, that four of the five prisoners were guilty, and that the other who stood without the door was not guilty. So he was acquitted; but the other four being brought to the bar, the judge asked them, what they could say why judgment of transportation should not be given against them. Their answer was, ‘We are innocent, and have not offended any just law of God or man, to deserve that sentence; we leave it to the witness of God in thy or your consciences.’ Then the judge said, ‘Ye have offended against this law, (having the act before him,) which is made by the king and parliament, and executed by us their subordinate ministers: if it be not righteous and just, we must answer for that.’ One of the prisoners had said before, ‘If I have transgressed any just law, let me suffer; and if not, he that judgeth for God will not condemn me.’ To which the judge returned, ‘You do well to put me in mind of my duty; pray think of your own.’ And now he asked the prisoners, ‘Have you any more to say?’ To which they answered, ‘Nothing, but that we are innocent.’ Then he said, ‘Hear your sentence: you shall be transported beyond the seas, to the island of Jamaica, being one of his majesty’s foreign plantations, there to remain seven years. Now I have this one thing to acquaint you with, that if you, and either of you, will pay down here into the court, an hundred pounds before the court riseth, you and every one of you shall be discharged, and clearly acquitted for what is past. And I will show you this favour, not to discharge the court at this present, but shall adjourn it till afternoon.’ This was done; and the court being met again, the judge sent to the condemned prisoners to know if they would pay down the hundred pounds; but they answering, ‘No,’ the court was then soon discharged.

Seven of these prisoners not long after were carried on ship-board to be transported to the West Indies; but (which was remarkable,) the ship by contrary winds and stormy weather was hindered going to sea. Not only the master, whose name was Thomas May, but also his men, grew very uneasy at this: for they believed that Heaven was against them: nay, the sailors threatened to leave the ship, if the master would not set those prisoners ashore. And he himself, considering how after having lain long in the Downs, and more than once set sail, they were hindered to go on by contrary winds, resolved at length, after having lingered about two months, to set the banished ashore; and so he did, giving them a certificate, of which I have a copy in my custody, that they were not run away, but freely put ashore by him, for which, among others, he gave these reasons, that seeing the great adversities they had met with, he concluded from thence, that the hand of God was against him, and that therefore he durst not go off with these prisoners, because he found them to be honest men, who had not deserved banishment. And also that there was a law extant, that no Englishman might be transported against his mind. And that his men refused to proceed on the voyage if he would carry away these people. This certificate he gave under his hand, and so let them go away free; and not long after the ship set sail with a fair wind. I do not find that the banished, who returned home again, were prosecuted on this account: for the sentence against them was executed as far as it could at that time, and they had made no opposition, but had been sufferers.