I expected I should have been called the first, because my name was first taken down; but it proved otherwise, so that I was one of the last that was called; which gave me the advantage of hearing the pleas of the other prisoners, and discovering the temper of the Court.
The prisoners complained of the illegality of their imprisonment, and desired to know what they had lain so long in prison for. The Court regarded nothing of that, and did not stick to tell them so, “For,” said the Recorder to them, “if you think you have been wrongfully imprisoned, you have your remedy at law, and may take it, if you think it worth your while. The Court,” said he, “may send for any man out of the street and tender him the oath: so we take no notice how you came hither, but finding you here, we tender you the oath of allegiance; which if you refuse to take, we shall commit you, and at length præmunire you.” Accordingly, as each one refused it, he was set aside and another called.
By this I saw it was in vain for me to insist upon false imprisonment or ask the cause of my commitment; though I had before furnished myself with some authorities and maxims of law on the subject, to have pleaded, if room had been given, and I had the book out of which I took them in my bosom; for the weather being cold, I wore a gown girt about the middle, and had put the book within it. But I now resolved to wave all that, and insist upon another plea, which just then came into my mind.
As soon therefore as I was called I stepped nimbly to the bar, and stood up upon the stepping, that I might the better both hear and be heard, and laying my hands upon the bar, stood ready, expecting what they would say to me.
I suppose they took me for a confident young man, for they looked very earnestly upon me, and we faced each other, without words, for a while. At length the Recorder, who was called Sir John Howel, asked me if I would take the oath of allegiance.
To which I answered: “I conceive this Court hath not power to tender that oath to me, in the condition wherein I stand.”
This so unexpected plea seemed to startle them, so that they looked one upon another, and said some what low one to another, “What! doth he demur to the jurisdiction of the Court?” And thereupon the Recorder asked me, “Do you then demur to the jurisdiction of the Court?”—“Not absolutely,” answered I, “but conditionally, with respect to my present condition, and the circumstances I am now under.”
“Why, what is your present condition?” said the Recorder.—“A prisoner,” replied I.—“And what is that,” said he, “to your taking or not taking the oath?”—“Enough,” said I, “as I conceive, to exempt me from the tender thereof while I am under this condition.”—“Pray, what is your reason for that?” said he.—“This,” said I, “that if I rightly understand the words of the statute, I am required to say that I do take this oath freely and without constraint, which I cannot say, because I am not a free man, but in bonds and under constraint. Wherefore I conceive that if you would tender that oath to me, ye ought first to set me free from my present imprisonment.”
“But,” said the Recorder, “will you take the oath if you be set free?”—“Thou shalt see that,” said I, “when I am set free. Therefore set me free first, and then ask the question.”
“But,” said he again, “you know your own mind sure, and can tell now what you would do if you were at liberty.”—“Yes,” replied I, “that I can; but I do not hold myself obliged to tell it until I am at liberty. Therefore set me at liberty, and ye shall soon hear it.”