The Cry of the innocent for justice being a relation of the tryal of John Crook, and others, at the general sessions, held in the Old Bayley, London : beginning the 25th day of the 4th month, called June, in the year 1662 : before the lord mayor of the city of London, and recorder of the same, chief justice Forster, and divers other judges and justices of the peace, so called : published for no other end but to prevent mistakes, and to satisfie all moderate enquirers, concerning the dealings and usages that the said J.C. and others met withal, from the beginning of the said tryals to the end.

Now followeth those two points of Law and Conscience, which J. C. desired of the Court, that he might be heard to speak to them as God should give him utterance at that time, expecting they would have given him liberty until the next Sessions, and therefore had no thoughts of speaking to these things when he was called to the Bar; but the Court denyed him liberty, yet he began to speak as followeth, but was interrupted.

AS to Law in this Case, for which I am called to your Bar, many things might be said, as first to the Statutes themselves that re∣quire the Oath.

For the 3d Jacob. 4. the ground or cause of the making that Law was the Gunpowder-Plot, as is manifest in the preamble of the said Act, in which the Papists only were the persons concerned, and there∣fore the Title of the Act is called, An Act for the discovering and repressing of Popish Recusants: Observe, not Popish Recusants and others, but only Popish Recusants; the Parliament intending them and no others when that Law was made, as appears further by these words in the Preamble of the 7. Jacobi, viz. beseeching your Majesty, that the same Oath may be administred to all your Subjects. (Mark) By these words, to all your Subjects, implyed, that the 3. Jacobi was to be restrained only to the Popish Recusants, otherwise these words, to all, &c. need not have been here inserted; and this may be further manifest unto him that will take the pains to reade the Preamble to the Act, and also the Oath it self: The Preamble saith, Forasmuch as it is found by daily experience that many of his Majesties Subjects

that adhere in their hearts to the Popish Religion, by the infection drawn from thence, and by the wicked and devilish Counsel of Jesuites, Seminaries, and other like persons, dangerous to the Church and State, are so far perverted in the point of their Loyalty and due Allegiance unto the Kings Majesty and Crown of England, as they are ready to entertain and execute any treasonable Conspiracies and Practices, as evidently appears by that more than barbarous and horrible attempt to have blown up with Gunpowder the King, Queen and Prince, Lords and Commons in the house of Parliament assembled, tending to the utter subversion of the whole State, Lately undertaken by the instigation of Jesuites and Seminaries, and in advancement of their Religion, by their Scholars, taught and instructed by them to that purpose, &c. These be the words of the Preamble, by which may be seen for whom this Law was made, and the Oath it self manifests no less, as may be seen in the Recital of it in the Indictment aforesaid; for the substance of it is to renounce the Pope and Papacy, and was made on purpose to find out those that were that way affected, and for no other end.

And whereas it is said, the words are general towards the end of the Act, viz. And if the said person or persons, or any other person whatsoever, &c. Observe, that these general words ought to be re∣strained to the persons intended in the Act, and signified both by the Title, and in the Preamble thereof, as aforesaid. The Title saith, For the discovering and repressing of Popish Recusants; that general words may be so restrained in a Statute, hath been adjudged, as may be seen in the 4th Book of Cook's Institutes, in his Treatise upon the High Commission, the Question stated by him, is, Whether General words in an Ast of Parliament do include all Particulars, and so exclude all Interpretations? His Answer is, That divers Acts of Parliament which are General in words, have upon consideration, &c. received a Particular Interpretation, as appears, 1. Hen. fol. 12, 13. by Au∣thority of Parliament all Preheminences, Prerogatives, Franchises and Liberties, were given by H. 7. intailed generally without limitation or saving, and the Question was, Whether the Franchises and Liberties of Lords and other inferior Subjects were given? and it was resolved by all the Judges, that they were not, notwithstanding the general words, for the reasons expressed in the said Book. So that here is one Case wherein words generally mentioned in an Act of Parliament have been particularly understood and restrained to the persons intended in the said Act.

Again, Cook saith, that Preambles are the Keys to open the mean∣ing

of the Makers of the Act, and mischiefs which they intended to remedy; and the Judges of the Law have ever expounded Acts ge∣nerally, in words to be particular, where the intent hath been particu∣lar: which are the words of the Book. And therefore upon that Rule it is they are adjudged, that where the Statute of the 7th Ed. 6. 1. is general, viz. That if any Treasurer, Receiver, or Minister, Ac∣comptant, &c. it was adjudged (notwithstanding the generality of the words) that this doth not extend to the Receiver of common per∣sons; for the reasons given in the said Book, the Judges restrained the generality to a particular, viz. the King's Receiver only; because the intent of the Makers of the Act was to punish only the Ministers, or Receivers of the King, and that because of the Stile or Title to the said Act; all which may be much more urged in the Case in hand, because the Title is so plain, viz. For the discovering and repressing of Popish Recusants, &c. and the Preamble also shewing it to be made upon occasion of the Gunpowder Plot, &c. And there∣fore for these, with divers other reasons that might be mentioned, those general words before-mentioned (by which we were judged to incur a Premunire) ought to be restrained to Popish Recusants, and par∣ticularly interpreted concerning them, and not to make the Law a snare to those who do from their hearts, and with their tongues also deny the Pope, with all alliances to, and dependences upon him, and that both as to his Principles and Practices; now to make these per∣sons offenders, only because of those general words, they refusing to swear, because they fear an Oath, but readily and willingly afford and yeeld all due and just obedience, and abhor from their souls whatever is contrary either in principle or practice; These Persons without doubt were never intended by the Parliament to be forced to take that Oath, they refusing in conscience to an Oath, and not because due subjection is required; Therefore those that punish them for such their refusal, have the greater sin, for which the Righteous God will call them to account. I shall conclude this with a general Rule allowed by all, in construction of Statutes, Quamvis Lex generaliter loquitur restrin∣genda tamen est, ut cessante ratione et ipse cesset, cum enim ratio sit anima vigor{que} ipsius Legis; non videtur Legislator id sensisse quod ra∣tione careat, etiamsi verborum generalitas prima facie aliter suadeat: in English thus, Though the Law may speak generally, yet it is to be restrained; because Reason ceasing, the Law it self ceaseth; for Rea∣son is the strength and soul of the Law it self: and therefore it may not be thought that the Law-makers had any such intention when the

reason is wanting, though the general words at their first view may seem otherwise: for the Maxime is, That the Reason of the Law is the Law it self.

Now followeth some Exceptions against the Statute made in the 7 Iacobi 6. which requires the taking of the said Oath, &c,

First, the Title is to be considered, which is, Who shall take the Oath of Obedience, and by whom it shall be ministred, and within what time. Note, that it is not said to the King and his Successors, but only to the King. And it appears by the Preamble also, that this Act was made to enlarge the persons that were to take the Oath, being all the Subjects, of what estates, dignity, preheminence, sex, quality, or de∣gree soever, he, she, or they be, or shall be, above the age of eighteen years, &c. the former Act of the 3 Iacobi appertaining only to Popish Recusants, as before is said. Again, Note, that in the Title aforesaid it is said, And within what time it shall be taken, which time seems to be particularly set down, within which all sorts of persons w••••e to take it, as appears in these words towards the end of the said Act; And to the intent that due execution may be had of the premises with∣out delay, it is further enacted by the Authority aforesaid, That all the persons before named, who have any certain time limited or expressed when to take the aforesaid Oath, shall at the time therein prescribed take the same, And the rest within six months next after the end of this present Session of Parliament. Note, here is a prefixed time for the several sorts of persons to take the said Oath; And the rest (mark that) implying all others whatsoever, to take it within six months next after the end of this present Session of Parliament; but no Provision is made in the said Act either to minister it afterwards, or to swear to any other besides King Iames (as it seems) and as by the Oath it self also appears; for it is said, the Oath was to be administred for the tryal of his Majesties Subjects how they stand affected, &c. and not to the Subjects of his Majesty, his Heirs and Successors; because it may be supposed the Law-makers intented this Oath to be only sworn to King Iames; for it is no where said in the Statute, that those who have power to tender the Oath, should swear all persons (that were to take it) to King Iames, and afterwards to his Heirs and Suc∣cessors; for though Heirs and Successors are named in the Oath, yet it is no where said that this Oath shall be inforced upon the Subjects to swear to any other King after his decease. By all which it may be thought that King Iames onely was to be sworn to by vertue of these Laws; for although he that took that Oath, was thereby obliged to

perform it both to the King, his Heirs and Successors, yet it is no where expressed in either of the Acts, that the persons then appointed to take the Oath (or others afterwards) should take the same to every of the Kings Heirs and Successors as they should come to the Crown. But notwithstanding all that hath been said, if it should yet be ad∣mitted that it might be tendred on the behalf of his Successors after his decease, yet these words are carefully to be observed by all who ten∣der the said Oath, viz. being duely tendered according to the true intent and meaning of the Statutes; and the rather the Ministers of the Oath ought to be careful in observing all due circumstances, as in the causing it to be read at the times of the respective tenders, according to the directions of the Statutes (which was not done to us upon our Tryal, some of us not having it read to us at all, and others but part of it, and that but once neither) and the more strictly, because the penalty for refusing is so great as Premunire, and those other words also are truly to be considered, viz. according to the true intent and meaning hereof, which cannot be supposed to be observed when it is tendred unto those who do yeeld all due obedience unto the King, and also do deny the Pope his principles and practices as aforesaid, and refuse it in conscience to an Oath, these answering the substance of the Law (which requires obedience to the King) but cannot observe the cere∣mony or imposed formality thereof, for conscience sake; and in this Case this distinction is to be kept unto in this Law as well as others, (viz.) Forma verbalis et forma Legalis, which is essentialis or the substance of the Law or thing to be performed: for, Lex non est in∣sermonam foliis, sed in radice rationis posita est, (Englisht) The Law is not in the leaves of words, but is placed in the root of Reason; and if the distinction aforesaid had been observed, the Oath could not in Justice have been tendred to us, when the substance of the Law is answered, though the particular words or formalities be not kept to, yet it hath been adjudged a good observance, as in Bufage's Case in the 10th Book of Cook's Reports upon the Statute of Hen. 6. 23. giving power to the Sheriffs to take Bail, &c. these three things were alledged against the Sheriff: 1. In the Obligation, the Law saith reasonable Sureties, and the Sheriff took but one Surety. 2. In the Condition, the Sheriff put in, that the Prisoner should appear in person, and the Statute saith onely appear generally, without the word person. 3. Ad respondendum, when the Statute saith only the day, not naming to answer. Yet for all this the Obligation was judged good, for the Reasons mentioned in the Book. And surely, if these omissions and

additions, contrary to the express words of the Statute, could be justly dispensed withal, much more then in our Case, might our refusal of a ceremony or imposed formality be born withall, the substance being observed, especially considering the disproportion of the penalties; the former the losse of a small sum only, but ours the losse of all outward Estates and Liberties also, besides being put out of the King's Pro∣tection, as our Sentence was: But we leave this matter to be judged by Him that judgeth righteously.

More Presidents might be urged in this Case, to manifest the hard measure we have met withall, but I shall conclude with these few Instances following. Vide Sir Robert Cotton's Collections, Records in the Tower, 39 Hen. 6. 1. That an Oath being the Law of man, ought not to be performed when the same tendeth to the suppression of Truth and Right, which is against the Law of God: and the Sta∣tute of 28 Hen. 8. 7. saith, That no man, of what estate, degree or condition soever he be, hath power to dispense with God's Laws, as all the Clergy of this Realm, and the most part of the Ʋniversities of Christendom, and we also do affirm and think: and the Common Law of England also saith no less; Dr. & Stud. cap. 3. pag. 6. Man may only make Laws of such things as he may judge upon, and the Judg∣ment may not be of inward things, but only of outward things: and the same Book also saith, p. 8. The Laws of Princes, the Comments of Prelates, the Statutes of Commonalties, nor yet the Ordinances of the Church, are not righteous nor obligatory, except they be consonant to the Law of God. And cap. 2. p. 4. speaking of the Law written in the heart, he saith, Against this Law, Prescription, Statute, Custom may not avail, and if any be brought in against it, they be void and against Justice. These things considered, it is manifest to every un∣prejudiced mind, that what ever can be said concerning the Statutes aforesaid (being but the Laws of men) they are void and null, because contrary to the Law of Christ, who saith, Swear not at all; And if banishing, fining, and imprisoning men for Conscience, &c. were the flagellent methods of the late most tyrannous times, who had neither Law nor Reason to support them, (as the Bishop of Exon saith in his late Book against the Quakers) Then what are these dealings and prosecutions, and Sentences against us and others, only for Conscience sake, because we fear an Oath (in obedience to our Lord, who saith, Swear not at all) and what these are to be accounted, and what Law or Reason they have to support them, I leave the wise in heart to judge?