2. That in the place of judicature, the Lord Chief Justice hath under-valued, vilified, and 'condemned Magna Charta, the great preserver of our lives, freedom, and property.

3. That he be brought to trial, in order to condign punishment, in such manner as the House shall judge most fit and requisite.' December 13th 1667.

• Resolved, &c.

laws of the land; and considering that every singular action of an inferior minister, has an ugly reference to the supreme magistrate, where not rebuked; we cannot but conclude,that both judges are answerable for their irregularities, especially, where they had not a limitation of a king's letter, or command; and that the supreme magistrate is obliged, as in honour and safety to himself, Alfred-like, to bring such to condign punishment, lest every sessions produce the like tragical scenes of usurpation over the consciences of Juries, to the vilifying and contem

That the precedents and practice of fining or imprisoning jurors, for verdicts, is illegal.'* Now whether the justices of this court, inning of justice, and great detriment, and prejutheir proceedings (both towards the prisoners, dice of the good and honest men of this famous and Jury) have acted according to law, to their and free city. Fiat Justitia. oaths and duty, and to do justice without partiality whereby right might be preserved, the peace of the land secured, and our ancient laws established; or whether such actions tend not to deprive us of our lives and liberties, to rob us of (our birth-right) the fundamental laws of England? and finally to bring in an arbitrary and illegal power to usurp the benches of all our courts of justice, we leave the English reader to judge.

course of measures, after Clarendon had been removed, was perhaps the result of cool policy in favour of the Papists. It seems to have been supposed that by the enactment and severe enforcement of the second Conventicle Act, Stat. 22, Car. 2, c. 1. the Protestant Dissenters might have been driven to petition for a general Toleration. However this may be, it appears that an active persecution was exercised under the provisions of that statute.

THE severe measures adopted in the early part of the reign of Charles the Second, against Protestant Non-Conformists, (See the Act of Uniformity, Stat. 13 and 14 Car. 2, c. 4, the first Conventicle Act Stat. 16, Car. 2, c. 4, The Five Mile Act Stat. 17 Car. 2, c. 2,) it is probable were occasioned by the sentiments of Certainly, there can be no higher affront of hatred and revenge which Clarendon felt tofered to king and parliament, than the bring-wards the Presbyterians. The revival of that ing their reputations into suspicion with their people, by the irregular actions of subordinate judges: And no age can parallel the carriage of this recorder, mavor, &c. Nor can we think so ignobly of the parliament, as that they should do less than call these persons to account, who failed not to do it to one less guilty, and of more repute, (to wit) judge Keeling: for if his behaviour gave just ground of jealousy, that he intended an innovation, and the introducing an arbitary government, this recorder much more. Many of the bishops," saysNeal," chose to lie Did Chief Justice Keeling say, Magna Charta behind the curtain, and throw off the odium from was Magnafarta; so did this recorder too: And themselves to the civil magistrate; but some did justice Keeling fine and imprison Juries, con- of the more zealous could not forbear appear trary to law; so did this Recorder also. In shorting in person, as bishop Ward, already men there is no difference, unless it be, that the one was questioned, and the other deserves it: But we desire in this they may be said to differ, that though the former escaped punishment, the latter may not, who having a precedent before, did notwithstanding notoriously transgress.

To conclude, the law supposes the king cannot err, because it is willing to suppose, he always acts by law (and voluntas legis, est voluntas 'Regis,' or the king's will is regulated by the law) but it says no such thing of his judges. And since they are obliged by oath to disregard the king's letters (though under the broad and privy seal) if they any wise oppugn, or contradict the

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tioned, and bishop Gunning, who often disturbed the meetings in person; once finding the doors shut, he ordered the constable to break them open with a sledge; another time he sat upon the bench at the quarter sessions, upon which the chairman desired his lordship to give the charge, which he refusing, received a very handsome rebuke; it being hardly con sistent with one that is an ambassador of the prince of peace, to sit in judgment upon the consciences of his poor countrymen and neigh hours, in order to plunder and tear them to pieces. The bishop was so zealous in the cause, that he sunk his character by giving a public challenge to the Presbyterians, Independants, See Mr. Clifford's argument in the Case of Anabaptists, and Quakers, and appointed three Flower, A. D. 1799, and Mr. Clifford's Post-days for the disputation; on the first of which script to that Case, infra. Sec also what Mr. Hargrave says of this matter, in his Preface to lord Hale's Treatise on the Judicature of the Lords' House of Parliament. Some spirited observations on Kelyng's conduct are to be found in the Tract concerning Juries, ascribed to lord Somers. See lord Shaftesbury's Case, A. D. 1681, infia.

his lordship went into the pulpit in the church, where was a considerable congregation, and charged the former with sedition and rebellion out of their books, but would hear no reply. When the day came to dispute with the Quakers, they summoned their friends, and when the bishop railed, they paid him in his own coin; and followed him to his very house

with repeated cries, "The Hireling flyeth;" The Non-conformist ministers did what they could to keep themselves within the compass of the law; they preached frequently twice a day in large families, with only four strangers, and as many under the age of sixteen as would come; and at other times in places where people might hear in several adjoining houses; but after all, infinite mischiefs ensued, families were impoverished and divided; friendship between neighbours was interrupted; there was a general distrust and jealousy of each other; and sometimes upon little quarrels, servants would betray their masters and ruin all their affairs. Among others that suffered at this time was Dr. Manton, who was apprehended on a Lord's day in the afternoon just as he had done sermon, the door being opened to let a gentleman out, the justice and his attendants rushed in and went up stairs; they stayed till the Doctor had ended his prayer and then writ down the names of the principal persons present, and took the Doctor's promise to come to them at an house in the Piazzas of Covent Garden, where they tendered him the Oxford oath, upon his refusal of which he was committed prisoner to the Gatehouse, where he continued till he was released by the indulgence. At another time his Meeting-house in White-hart-yard was broken up; the place was fined forty pounds, and the minister twenty, which was paid by Lord Wharton, who was then present: they also took down the names of the hearers for the benefit of the justices of peace and spiritual courts."

These severities seem to have been attended by the usual effects of religious persecution. The same author, by way of introduction to his Account of this Case of Penn and Mead tells us :

In the year 1659,in the fourth month, the last day of the month being the 5th day of the week.

"The presence of the Lord God was felt within me, and in his light he let me see what his pleasure was with me; it was clearly shewed me that I should go to the Steeplehouse in Alderman-bury the first day of the week then following, and take with me something to work, and do it in the pulpit at their singing time.

"At which sight I found much unwillingness in myself, yet sitting still with trembling, there came upon me a very great weight pressing me to obedience; yea a heavy burthen was felt, till I had consented to obey; I felt the weight to increase, oh how hard my unwilling will was to yield, but the Lord strengthened me, and having consented, I found a little case, yea I did resolve in the power of the Lord to go onI purposed to carry with me a pocket to sow.

"So the first day morning being the 3rd day of the 5th month after the 8th hour one of the doors being open, I passed in, thinking to get into the pulpit to hide myself there till their singing time, and then get up and work; the Sexton spying me, took me by the arm, said friend we do not open yet, for it was their Communion day as they call: but the time I was in, I found the galleries were higher than the pulpit, and I should have been discovered before their song began; I see the clerk giving tickets: so about the 9th hour their doors were opened, I passed in as one of their own crowd, the throng came in very fast, I got into one of the galleries to spy if possible to get in the pulpit some way, but I found none at that time, so they began to read, and I came down, and finding no way to get into the pulpit, I "The behaviour of the Quakers was very came to the table that is prepared for that extraordinary, and had something in it that troop, I thought to get upon the table to work, looked like the spirit of martyrdom. They but the table was set round with young men, met at the same place and hour as in times of and when they began their song, they laid on liberty, and when the officers came to seize their hats upon the table, so I standing still them none of them would stir; they went waiting on the Lord, having a great mind to do altogether to prison; they stayed there till they the Lord's work; their song being up, my hat were dismissed, for they would not petition to offended them, they took it off, and cast it be set at liberty, nor pay the fines set upon away, and one of the young men gave it me them, nor so much as the gaol fees. When again, I put it on, and it offended again, insothey were discharged they went to their Meet- much that Piercefall did perceive me, who ing-house again, as before; and when the doors came violently, and took my hat off to fling it were shut up by order, they assembled in great away, but I held it, then he took me by the numbers in the street before the doors, saying, hair of the head, and dragged me out, and as they would not be ashamed, nor afraid to dis-one of their own company testified to his face own their meeting together in a peaceable manner to worship God; but in imitation of the Prophet Daniel, they would do it more publicly because they were forbid. Some called this obstinacy, others firmness; but by it they carried their point, the government being weary of dealing with so much perverseness."

The fanaticism of the Quakers had, indeed, occasionally displayed itself in an offensive manner some years earlier, as may be seen in the Case of James Nayler, ante, vol. 5, p. 801, and in the following curious narrative:

that he struck me, but I cannot say that, but a lusty red-haired man did strike me, I supposed him to be an officer in that hateful place, but Piercefall after he had dragged me out by the hair, said, Sirrah do you not know William Duike, I said nay, for I did not know him; Sirrah, said he, I put him in prison, and fined him ten pound, and you must be served so too, and so charged the constable with me, and went himself in again, and received the Sacrament for all this.

"The constable told me that I might go

away if I would, but in again I must not. So and it had been little to me if they had there I stood a while and finding in myself no con- taken away or killed the body. For I was straint, I passed away towards More-fields full of joy, and they were full of wrath and finding a little ease from the weight of the bur-madness; so they tore my coat off and my hat, den, being faithful to what might be done at and dragged me out, and one took me by the that time: but the 6th day of the week being hair and flung me upon the ground, and some the 8th day of the month sitting at work in my that was without said, Why do you use the man shop but not on the shop board, the burden of so, but I got up again, then they dragged me the Lord came upon me, and the light making quite out into the street, and there beld me, manifest the same thing that was not yet done, and while they held me, one came, and gave must be done, and the Lord would not dis-me a violent kick on the shins, and said he charge me, but laid a necessity upon me. I could find in his heart to knock me down, be beholding this with trembling and fear; I did resolve in the power of the Lord not to eat nor drink, till I had performed the Lord's requiring. So having purposed in heart, I greatly desired the Lord's assistance; and it was shewed me how to do it, and the Lord made way for me. "So the first day of the week being the 10th day of the 5th month, I waited opportunity till

made my shin bleed, and another kicked me on the other shin, but did not much hurt, another said that I had been some notorious sinner heretofore and now came to do something that might merit, presently the church-warden as they call him, came out, and he and the belltoller carried me away to the counter, till their Sermon was ended, as they call it, then they carried me away to Paul's Yard to stay for the the singing time began, which when I heard, I passed in, but being fearful to be taken with the mayor, but the sergeant said he would carry hat again; and so loose my main business, for me away to the mayor's house and there stay the Lord I stept out again, but staid not, I me till he came in ; and so he did; and all the came in again; I looked towards the pulpit and way through Paternoster-Row as I went, the boys kicked my heels, so then the mayor came spyed the pew door open, that the priest might pass up the pulpit. So I waited thinking that, and they told him that I was at work in the Edmund Calomy would go up the pulpit, I in- pulpit; then said he to me, Wherefore did you tended to get in before him; for thought I that work there? I said in obedience to the Lord's boy that sits upon the stairs will open the pulpit and said he, where are your sureties? I said commandment: he said, It was a false spirit, door for the priest, and I will get in before, but the Lord was my surety; he said, the Lord no priest came, whereupon in the power of the would not bear me out in this thing: said he Lord I fixed my eye upon the pulpit, and I spyed an iron hook, and I passed through the to them, Carry him again to the Counter: so pew up the stairs, and unhooked the door, and they carried me back again, and there I was till the third day. pulled twice and got it open, and I sat myself down upon the cushion, and my feet upon the seat where the priest when he hath told out his lies doth sit down, and having my work ready, I pulled one or two stitches. The people lost their song, and some cried Pull him down, some break his neck down, and a lusty fellow came up and did intend to do me a mischief, and wrung my neck as if he would have wrong it in two. So I let go my hold and he flung me down stairs; but the Lord preserved me, and I felt no burt; for having done that which the Lord required me to do I was full of peace;

"Now let all sober people judge whether I did this thing out of envy against either priest or people.

"Yea farther I say, the Lord God lay it in malice, devilishness and envy; it is the denot to their charge, who have said that I did it sire of my soul that they might be saved.

"And so do write my name being a prisoner for the Testimony of the. Lord in the common gaol in Newgate, London: committed the 15th of the 5th month, 1659.

"SOLOMON ECCLES."

231. Case of the Imprisonment of EDWARD BUSHELL,* for alleged Misconduct as a Juryman: 22 CHARLES II. A. D. 1670. [Vaughan's Reports, 135.t]

THIS important Case, which arose out of the preceding, is thus reported by Chief Justice Vaughan:

The king's Writ of Habeas Corpus, dat. 9 die Novembris, 22 Car. 2. issued out of this court directed to the thea Sheriffs of London,

*See also 3 Keble's Rep. 322. Freeman's Rep. 1. 2 Jones's 13, and 1 Modern Rep. 119. +See the Observations of Lord Erskine upon this Case in his very able and eloquent

to have the body of Edward Bushell, by them detained in Prison, together with the day and cause of his caption and detention, on Friday then next following, before this court, to do and receive as the court should consider; as also to bave then the said writ in court.

Argument in the Court of King's Bench in support of an application for a new trial in the Case of the Dean of St. Asaph (Shiply) in Michaelmas Term 1784, infra.

Of which Writ, Patient Ward and Dannet Foorth, then Sheriffs of London, made the return following, aunexed to the said Writ.

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capto et commisso existente ad dictam gaolam 'de Newgate, sub custodia præfat. Johannis 'Smith et Jacobi Edwards adtunc vic, civitatis 'Lond. prædict, et in eorum custodia in gaola That at the king's court of a session of Oyer prædict existente et remanente virtute ordinis and Terminer, held for the City of London, at 'prædict', iidem Johannis Smith et Jacobus EdJustice Hall in the Old Bailey, London, in the 'wards, postea in eorum exitu ab officio vic. ciparish of St. Sepulchre's in Farringdon ward 'vitatis Lond. prædict. scilicet 28 die Sep-, without London, on Wednesday 31 die August tembris, anno 22. supra dicto eundem Ed22 Car. 2. before sir Samuel Sterling then 'wardum Bushell in dicta gaola dicti domini mayor of London, and divers other his majes-regis adtunc existentem, deliberaverunt nobis ty's justices, by virtue of his majesty's letters patents, under the great seal of England, to them, or any four or more of them, directed to enquire, hear, and determine, according to the tenor of the said letters patents, the offences therein specified: and amongst others, the offences of unlawful congregating and assemblies, within the limits appointed by the said commission within the said city, as well within liberties as without. Edward Bushel, the prisoner at the bar, was committed to the gaol of Newgate, to be there safely kept, under the custody of John Smith knight, and James Edwards, then sheriffs of the said city, by virtue of a certain Order, then and there made by the said court of sessions, as followeth:

Ordinatum est per curiam hic quod Finis 40 marcarum separatim ponatur super Edwardum Bushell, and other eleven persons particularly named, and upon every of them, being the 12 jurors, then and there sworn, and charged to try several issues then and there joined between our lord the king, and William Penn and William Mead, for certain trespasses,contempts, unlawful assemblies and tumults, made and perpetrated by the said Penn and Mead, together with divers other unknown persons, to the number of three hundred, unlawfully and tumultuously assembled in Grace-Church-street in London, . to the disturbance of the peace, whereof the said Penn and Mead were then indicted before the said justices. Upon which indictment, the said Penn and Mead pleaded they were Not Guilty. For that they, the said jurors, then and there, the said William Penn and William Mead, of the said trespasses, contempts, unlawful assemblies and tumults, Contra legem hujus regni Angliæ, et contra plenum et manifestum evidentiam, et contra directionem 'curiæ in materia legis, bic, de et super præmissis eisdem juratoribus versus præfatos Will. Penn et Will. Mead, in curia hic aperta da'tain, et declaratam de præmissis, iis impositis in indictamento prædicto acquietaverunt, in contemptum domini regis nunc, legumque suarum, et ad magnum impedimentum et ob-tructionem justiciæ, necnon ad malum exemplum omnium aliorum juratorum in consimili casu delinquentium. Ac super inde modo ulterius ordinatum est per curiam hic quod præfatus Ed. Bushell, capiatur et committatur gaole dicti domini regis de Newgate, ibidem remansurus quousque solvat dicto domino regi 40 Marcas pro fine suo prædicto, vel deliberatus fuerit, per debitum legis cursum. Ac eodem Edwardo Bushell ad tunc, et ibidem

præfatis nunc vice comitibus civitatis prædict ‹ in eadem gaola, salvo custodiendum secundum tenorem, et effectum ordinis prædictæ. Et quia prædictus Edwardus, nondem solvit dicto domino regi prædictum finem 40 marcarum, nos iidem nunc vicecomites corpus ejusdem Edwardi in gaola prædicta, hucusque de'tinuimus, et hæc est causa captionis et detentionis præfati Edwardi, cujus quidem corpus coram præfatis justitiariis paratum habe

6

'mus.'

The Writ of Habeas Corpus is now the most usual remedy by which a man is restored again to his liberty, if he have been against law depri-ved of it.

Therefore the writ commands the day, and the cause of the caption and detaining of the prisoner to be certified upon the return, which if not done, the Court cannot possibly judge whether the cause of the commitment and detainer be according to law or against it.

Therefore the cause of the imprisonment ought, by the return, to appear as specifically and certainly to the judges of the return, as it did appear to the court or person authorized to commit; else the return is insufficient, and the consequence must be,

That either the prisoner, because the cause returned of his imprisonment is too general, must be discharged; when as if the cause had been more particularly returned, he ought to have been remanded; or else he must be remanded, when if the cause had been particularly returned, he ought to have been discharged: Both which are inconveniences not agreeing with the dignity of the law. (There is a specious exception to this rule, but doth not materially vary it, as shall appear.)

In the present case it is returned, That the prisoner, being a juryman, among others charged at the Sessions Court of the Old Bailey, to try the issue between the king, and Penn, and Mead, upon an indictment, for assembling unlawfully and tumultuously, did 'contra plenam et manifestam evidentiam,' openly given in court, acquit the prisoners indicted, in contempt of the king, &c.

The court hath no knowledge by this return, whether the evidence given were full and manifest, or doubtful, lame, and dark, or indeed cvidence at all material to the issue, because it is not returned what evidence in particular, and as it was delivered, was given. For it is not possible to judge of that rightly, which is not exposed to a man's judgment. But here the evidence given to the jury is not exposed at all