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.