Foster, C. J.—“John Crook, when did you take the oath of allegiance?” Crook.—“Answering this question in the negative is to accuse myself; which you ought not to put me upon. ‘Nemo debet seipsum prodere.’ I am an Englishman, and I ought not to be taken, nor imprisoned, nor called in question, nor put to answer, but according to the law of the land.” Foster, C. J.:—“You are here required to take the oath of allegiance, and when you have done that, you shall be heard.” Crook.—“You that are judges on the bench ought to be my counsel, not my accusers.” Foster, C. J.—“We are here to do justice, and are upon our oaths; and we are to tell you what is law, not you us. Therefore, sirrah, you are too bold.” Crook.—“Sirrah is not a word becoming a judge. If I speak loud, it is my zeal for the truth and for the name of the Lord. Mine innocency makes me bold.” Foster, C. J.—“It is an evil zeal.” Crook.—“No, I am bold in the name of the Lord God Almighty, the everlasting Jehovah, to assert the truth and stand as a witness for it. Let my accuser be brought forth.” Foster, C. J.—“Sirrah, you are to take the oath, and here we tender it you.” Crook.—“Let me be cleared of my imprisonment, and then I will answer to what is charged against me. I keep a conscience void of offence, both towards God and towards man.” Foster, C. J.—“Sirrah, leave your canting.” Crook.—“Is this canting, to speak the words of the Scripture?” Foster, C. J.—“It is canting in your mouth, though they are St. Paul’s words. Your first denial to take the oath shall be recorded; and on a second denial, you bear the penalties of a præmunire, which is the forfeiture of all your estate, if you have any, and imprisonment during life.” Crook.—“I owe dutiful allegiance to the king, but cannot swear without breaking my allegiance to the King of Kings. We dare not break Christ’s commandments, who hath said, Swear not at all; and the apostle James says, ‘Above all things, my brethren, swear not.’”
Crook, in his account of the trial, says, “The chief justice thereupon interrupting, called upon the executioner to stop my mouth, which he did accordingly with a dirty cloth and a gag.” The other Quakers following Crook’s example, they were all indicted for having a second time refused to take the oath of allegiance; and being found guilty, the court gave judgment against them of forfeiture, imprisonment for life, and moreover, that they were “out of the king’s protection;” whereby they carried about with them caput lupinum, (a wolf’s head,) and might be put to death by any one as noxious vermin.
The last trial of importance at which Chief Justice Foster presided was that of Thomas Tonge and others, charged with a plot to assassinate the king. General Ludlow says that this was got up by the government to divert the nation from their ill humor, caused by the sale of Dunkirk;[62] the invention being, “that divers thousands of ill-affected persons were ready under his command to seize the Tower and the city of London, then to march directly to Whitehall, in order to kill the king and Monk, with a resolution to give no quarter; and after that to declare for a commonwealth.” The case was proved by the evidence of supposed accomplices, which was held to be sufficient without any corroboration. The chief justice seems to have been very infirm and exhausted; for thus he summed up,—
“My masters of the jury, I cannot speak loud to you; you understand this business, such as I think you have not had the like in your time; my speech will not give me leave to discourse of it. The witnesses may satisfy all honest men: it is clear that they all agreed to subvert the government, and to destroy his majesty. What can you have more. The prisoners are in themselves inconsiderable; they are only the outboughs; but if such fellows are not met withal, they are the fittest instruments to set up a Jack Straw and a Wat Tyler; therefore you must lop them off, as they will encourage others. I leave the evidence to you; go together.”
The prisoners being all found guilty, the chief justice thus passed sentence upon them,—
“You have committed the greatest crime against God, our king, and your country, and against every good body that is in this land; for that capital sin of high treason is a sin inexpiable, and, indeed, hath no equal sin as to this world. Meddling with them that are given to change hath brought too much mischief already to this nation; and if you will commit the same sin, you must receive the same punishment, for happy is he who by other men’s harms takes heed.”
They were all executed, protesting their innocence.
The chief justice went a circuit after this trial, in the hope that country air would revive him. However, he became weaker and weaker, and, although much assisted by his brother judge, he with great difficulty got to the last assize town. From thence he travelled by slow stages to his house in London, where, after languishing for a few weeks, he expired, full of days, and little blamed for any part of his conduct as a judge, however reprehensible it may appear to us, trying it by a standard which he would have thought only fit to be proposed by rebels.