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The People's Ancient and Just Liberties
Asssrted [sic]
in the
TRYAL
of William Penn, and William Mead
At the Sessions held at the Old-Baily in London, the
first, third, fourth and fifth of Sept. 70 against
the most Arbitrary procedure of that Court.
Printed in the Year, 1670
To the English Reader
If ever it were time to speak or write, it is now, so many strange occurrences requiring both. How much thou art concerned in this ensuing Trial, where not only the Prisoners, but the Fundamental Laws of England, have been most arbitrarily arraigned, read, and thou mayest plainly judge.
Liberty of Conscience is counted a pretence for Rebellion, and religious assemblies, routs, and riots; and the defenders of both, are them, reputed factious and disaffected.
Magna Charta, is Magnaf----- with the Recorder of London1 ; and to demand right an affront to the court.
Will and Power are their great charter, but to call for England's, is a crime, incurring the penalty of their Bale-dock, and Nasty-hole, nay, the menace of a Gag, and Iron Shackles too.
The Jury, though proper judges of law and fact, they would have over-ruled in both, as if their Verdict signified no more, than to echo back the illegal Charge of the Bench ; and because their courage and honesty did more than bold pace with the threat and abuse of those, who sat as judges, after two days and two nights restraint for a verdict, in the end were fined and imprisoned, forgiving it.
O ! what monstrous, and illegal proceedings are these ? Who reasonably can call his coat his own ? When property is made subservient to the will and interest of his judges ; or, who can truly esteem himself a free man ? When all pleas for liberty are esteemed sedition, and the laws, that give, and maintain them, so many insignificant pieces of formality.
And what do they less than plainly tell us so, who at will and pleasure break open our locks, rob our houses, raze their foundations, imprison our persons, and finally deny us justice to our relief; as if they then acted most like christian men, when they were most barbarous, in ruining such, as really are so ; and that no sacrifice could be so acceptable to God, as the destruction of those, that most fear him.
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In short, That the conscientious should only be obnoxious, and the just demand of our religious liberty, the reason, why we should be denied our civil freedom, as if to be a Christian and an Englishman were inconsistent, and that so much solicitude and deep contrivance, should be employed only, to ensnare, and ruin, so many ten thousand conscientious families, so eminently industrious, serviceable, and exemplary, whilst murder can so easily obtain pardons, rapes be remitted, public uncleanness pass unpunished, and all manner of levity, prodigality, excess, profaneness, and atheism, universally connived at; if not in some respect manifestly encouraged, cannot but be detestably abhorrent, to every serious and honest mind.
Yet that this lamentable state is true, and the present project in hand, let the London's Recorder, and Canterbury's Chaplain be heard.
The first in his public panegyric, upon the Spanish Inquisition, highly admiring, the prudence of the Romish Church, in the erection of it, as an excellent way to prevent Schism, which unhappy expression, at once passeth sentence, both against our fundamental laws, and Protestant Reformation.
The second, In his printed mercenary Discourse against Toleration, asserting for a main principle, That it would be less injurious to the government, to dispense with prophane and loose persons, than to allow a toleration to religious dissenters: It were to over-do the business, to say any more, where; there is so much said already.
And therefore to conclude, we cannot choose but admonish all, as well persecutors to relinquish their heady, partial, and inhuman prosecutions, as what will certainly issue in disgrace here, and inevitable condign punishment hereafter, as those who yet dare express their moderation, however out of fashion, or made the brand, of fanaticism, not to be huffed, or menaced, out of that excellent temper, to make their parts, and persons subservient to the base humours, and sinister designs of the biggest mortal upon earth : But to reverence and obey the eternal just God, before whose great tribunal all must render their accounts, and where he will recompence to every person according to his works.
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The Tryal of William Penn and William Mead
As there can be no Observation, where there is no Action; so its impossible, there should be a judicious intelligence, without due Observation.
And since there can be nothing more seasonable than a right information, especially of Public Acts; and well knowing, how industrious some will be, to mis-represent this Trial to the disadvantage of the Cause and Prisoners, it was thought requisite, in defence of both, and for the satisfaction of the People, to make it more public ; nor can there be any business wherein the People of England are more concerned, than in that which relates to their civil and Religious Liberties, questioned in the Persons above named, at the Old-Bailey, the 1st, 3rd, 4th, and 5th, of Sept. 1670.
There being present on the Bench, as Justices Sam Starling, Mayor. John Roberson, Alderm.
Tho. Howell, Recorder. Joseph Sheldon, Alderm.
Tho. Bludworth, Alderm. Richard Browne
William Peak, Alderm. John Smith,
Richard Ford, Alderm. James Edwards, } Sheriffs
The Citizens of London that were summoned for Jurors,
appearing, were impannelled, viz.,
Cla.2 Call over the Jury.
Cryer. O Yes! Thomas Veer, Ed. Bushel, John Hammond, Charles Milson, Gregory Walklet, John Brightman, William Plumsted, Henry Henley, Thomas Damask, Henry Michel, William Lever, John Baily.
The Form of the Oath
You shall well and truly Try, and true Deliverance make betwixt our Sovereign Lord the King, and the Prisoners at the Bar, according to your Evidence. So help you God.
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The indictment
That William Penn, Gent. and William Mead, late of London, Linnen-Draper, with divers other Persons to the Jurors unknown, to the Number of 300, the 14th Day of August, in the 22d Year of the King, about Eleven of the Clock in the Forenoon, the same Day, with Force and Arms, &c. in the Parish of St. BentGrace-Church in Bridge-Ward, London, in the Street called Grace-Church-Street, unlawfully and tumultuously did Assemble and Congregate themselves together, to the Disturbance of the Peace of the said Lord the King: And the aforesaid William Penn and William Mead, together with other Persons to the Jurors aforesaid unknown, then and there so Assembled and Congregated together; the aforesaid William Penn, by Agreement between him and William Mead before made, and by Abetment of the aforesaid William Mead, then and there, in the open Street, did take upon himself to Preach and Speak, and then and there did Preach and Speak unto the aforesaid William
Mead, and other Persons there, in the Street aforesaid, being Assembled and Congregated together, by Reason whereof a great Concourse and Tumult of People in the Street aforesaid, then and there, a long time did remain and continue, in contempt of the said Lord the King, and of his Law, to the great Disturbance of his Peace; to the great Terror and Disturbance of many of his Leige People and Subjects, to the ill Exampleof all others in the like Case Offenders, and against the Peace of the said Lord the King, his Crown and Dignity.
What say you, William Penn and William Mead, are you Guilty, as you stand
indicted, in Manner and Form, as aforesaid, or Not Guilty?
Pen. It is impossible, that we should be able to remember the Indictment verbatim, and therefore we desire a Copy of it, as is customary in the like Occasions.
Recorder. You must first plead to the Indictment, before you can have a Copy of it.
Pen. I am unacquaninted [sic] with the Formality of the Law, and therefore, before I shall answer directly, I request two Things
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of the Court. First, that no Advantage may be taken against me, nor I deprived of any Benefit, which I might otherwise have received. Secondly, that you will promise me a fair hearing, and liberty of making my Defence.
Court. No Advantage shall be taken against you; you shall have Liberty; you shall be heard.
Pen. Then I plead Not Guilty in Manner and Form.
Cla. What sayest thou, William Mead, art thou Guilty in Manner and Form, as thou standest indicted, or Not Guilty?
Mead. I shall desire the same Liberty as is promised William Penn.
Court. You shall have it.
Mead. Then I plead Not guilty in Manner and Form.
The Court adjourn'd until the Afternoon.
Cryer. O Yes, &c.
Cla. Bring William Penn and William Mead to the Bar.
Obser.3 The said Prisoners were brought, but were set aside, and other
Business prosecuted. Where we cannot choose but observe, that it was the constant and unkind Practices of the Court to the Prisoners, to make them wait upon the Trials of Felons and Murderers, thereby designing, in all probability, both to affront and tire them.
After five Hours Attendance, the Court broke up and adjourned to the third Instant.
The third of September 1670, the Court sate.
Cryer. O Yes, &c.
Cla. Bring William Penn and William Mead to the Bar.
Mayor. Sirrah, who bid you put off their Hats? Put on their Hats again.
Obser. Whereupon one of the Officers putting the Prisoners Hats upon their
Heads (pursuant to the Order of the Court) brought them to the Bar.
Record. Do you know where you are?
Pen. Yes.
Record. Do not you know it is the King's Court?
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Pen. I know it to be a Court, and I suppose it to be the King's Court.
Record. Do you not know there is Respect due to the Court?
Pen. Yes.
Record. Why do you not pay it then?
Pen. I do so.
Record. Why do you not pull off your Hat then?
Pen. Because I do not believe that to be any Respect.
Record. Well, the Court sets forty Marks a piece upon your Heads, as a Fine for your Contempt of the Court.
Pen. I desire it might be observed, that we came into the Court with our Hats off (that is, taken off) and if they have been put on since, it was by Order from the Bench; and therefore not we, but the Bench should be fined.
Mead. I have a Question to ask the Recorder. Am I fined also?
Record. Yes.
Mead. I desire the jury, and all People to take notice of this Injustice of the Recorder; who spake to me to pull off my Hat? and yet hath he put a Fine upon my Head. O fear the Lord, and dread his Power, and yield to the Guidance of his Holy Spirit, for he is not far from every one of you.
The jury sworn again.
Obser. J. Robinson Lieutenant of the Tower, disingenuously objected against Edw. Bushel, as if he had not kiss'd the Book, and therefore would have him sworn again; tho' indeed it was on purpose to have made use of his Tenderness of Conscience in avoiding reiterated Oaths, to have put him by his being a jury-man, apprehending him to be a Person not fit to answer their Arbitrary Ends.
The Clark read the Indictment, as aforesaid.
Cla. Cryer, Call James Cook into the Court, give him his Oath.
Cla. James Cook, lay your Hand upon the Book. The Evidence you shall give to the Court, betwixt our Sovereign the King, and the Prisoners at the Bar, shall be the Truth, and the whole Truth, and nothing but the Truth. So help you God.
Cook. I was sent for, from the Exchange, to go and disperse a Meeting in
Gracechurch-Street, where I saw Mr. Penn speaking to the People
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but I could not hear what he said, because of the Noise; I endeavoured to make way to take him, but I could not get to him for the Crowd of People; upon which Capt. Mead came to me, about the Kennel of the Street, and desired me to let him go on; for when he had done, he would bring Mr. Penn to me.
Court. What Number do you think might be there?
Cook. About three or four Hundred People.
Court. Call Richard Read, give him his Oath.
Read being sworn was ask'd, What do you know concerning the Prisoners at the Bar?
Read. My Lord, I went to Gracechurch-Street, where I found a great Crowd of People, and I heard Mr. Penn preach to them; and I saw Capt. Mead speaking to Lieutenant Cook, but what he said, I could not tell.
Mead. What did William Penn say?
Read. There was such a great Noise, that I could not tell what he said.
Mead. Jury, observe this Evidence, He saith he heard him Preach, and yet saith, he doth not know what he said.
Jury, take notice, he swears now a clean contrary thing to what he swore before the Mayor when we were committed: For now he swears that he saw me in Gracechurch-Street, and yet swore before the Mayor, when I was committed, that he did not see me there. I appeal to the Mayor himself, if this be not true. But no Answer was given.
Court. What Number do you think might be there?
Read. About four or five hundred.
Pen. I desire to know of him what Day it was?
Read. The 14th Day of August.
Pen. Did he speak to me, or let me know he was there; for I am very sure I
never saw him.
Cla. Cryer, call ----- ----- into the Court.
Cla. Give him his Oath.
-----My Lord, I saw a great Number of People, and Mr. Penn I suppose was speaking; I saw him make a Motion with his Hands, and heard some Noise, but could not understand what he said. But for Capt. Mead, I did not see him there.
Rec. What say you, Mr. Mead, were you there?
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Mead. It is a Maxime in your own Law, Nemo tenetur accusare seipsum, which if it be not true Latin, I am sure it is true English, That no Man is bound to accuse himself : And why dost thou offer to ensnare me with such a Question? Doth not this shew thy Malice? Is this like unto a judge, that ought to be Counsel for the Prisoner at the Bar?
Rec. Sir, hold your Tongue, I did not go about to ensnare you.
Pen. I desire we may come more close to the Point, and that Silence be commanded in the Court.
Cryer. O yes, all manner of Persons keep Silence upon Pain of Imprisonment ----- Silence in the Court.
Pen. We confess our selves to be so far from recanting, or declining to vindicate the Assembling of our selves to Preach, Pray, or Worship the Eternal, Holy, Just God, that we declare to all the World, that we do believe it to be our indispensable Duty, to meet incessantly upon so good an Account; nor shall all the Powers upon Earth be able to divert us from reverencing and adoring our God who made it.
Brown. You are not here for worshipping God, but for breaking the Law; you do yourselves a great deal of Wrong in going on in that Discourse.
Pen. I affirm I have broken no Law, nor am I Guilty of the Indictment that is
laid to my Charge; and to the End the Bench, the Jury, and my self, with these that hear us, may have a more direct Understanding of this Procedure, I desire you would let me know by what Law it is you prosecute me, and upon what Law you ground my Indictment.
Rec. Upon the Common-Law.
Pen. Where is that Common Law?
Rec. You must not think that I am able to run up so many Years, and over so many adjudged Cases, which we call Common-Law, to answer your Curiosity.
Pen. This Answer I am sure is very short of my Question, for if it be Common, it should not be so hard to produce.
Rec. Sir, will you plead to your Indictment?
Pen. Shall I plead to an Indictment that hath no Foundation in Law? If it
contain that Law you say I have broken, why should
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should you decline to produce that Law, since it will be impossible for the Jury to determine, or agree to bring in their Verdict, who have not the Law produced, by which they should measure the Truth of this Indictment, and the Guilt, or
contrary of my Fact?
Rec. You are a sawcy Fellow, speak to the Indictment.
Pen. I say, it is my place to speak to Matter of Law; I am arraign'd a Prisoner; my liberty, which is next to Life itself, is now concerned: You are many Mouths and Ears against me, and if I must not allowed to make the best of my Case, it is hard. I say again, unless you shew me, and the People, the Law you ground your Indictment upon, I shall take it for granted your Proceedings are meerly Arbitrary.
Rec. The Question is, whether you are guilty of this Indictment?
Pen. The Question is not whether I am Guilty of this Indictment, but whether this Indictment be legal. It is too general and imperfect an Answer, to say it is the Common-Law, unless we knew both where, and what it is: For where there is no Law, there is no Transgression; and that Law which is not in being, is so far from being Common, that it is no Law at all.
Rec. You are an impertinent Fellow, will you teach the Court what Law is?
It's Lex non scripta, that which many have studied thirty or forty Years to know, and would you have me to tell you in a Moment?
Pen. Certainly, if the Common-Law be so hard to be understood, it's far from being very Common; but if the Lord Coke, in his Institutes, be of any Consideration, he tells us, That Common-Law is Common Right, and that Common Right is the Great Charter-Privileges: Confirmed 9 Hen. 3.
29. 25 Edw. I. 1. 2 Edw. 3. 8. Cook Instit. 2 p. 56.
Rec. Sir, you are a troublesome Fellow, and it is not for the Honour of the Court to suffer you to go on.
Pen. I have asked but one Question, and you have not answer'd me; tho' the Rights and Privileges of every English-man be concerned in it.
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Rec. If I should suffer you to ask Questions till to Morrow Morning, you would be never the wiser.
Pen. That is according as the Answers are.
Rec. Sir, we must not stand to hear you talk all Night.
Pen. I design no Affront to the Court, but to be heard in my just Plea: And I must plainly tell you, that if you will deny me Oyer of that Law, which you suggest I have broken, you do at once deny me an acknowledged Right, and evidence to the whole World your Resolution to sacrifice the Privileges of Englishmen to your sinister and Arbitrary Designs.
Rec. Take him away. My Lord, if you take not some Course with this pestilent Fellow, to stop his Mouth, we shall not be able to do any thing to Night.
Mayor. Take him away, take him away, turn him into the Bale-dock.4
Pen. These are but so many vain Exclamations; is this justice or true Judgment? Must I therefore be taken away because I plead for the Fundamental Laws of England? However, this I leave upon your Consciences, who are of the Jury (and my sole Judges) that if these Ancient Fundamental Laws, which relate to Liberty and Property, and (are not limited to particular Persuasions in Matters of Religion) must not be indispensibly maintained and observed. Who can say he hath Right to the Coat upon his Back? Certainly our Liberties are openly to be invaded, our Wives to be ravished, our Children slaved, our Families ruined, and our Estates led away in Triumph, by every sturdy Beggar and malicious Informer, as their Trophies, but our (pretended) Forfeits for Conscience sake. The Lord of Heaven and Earth will be Judge between us in this Matter.
Rec. Be silent there.
Pen. I am not to be silent in a Case wherein I am so much concerned, and
not only my self, but many ten thousand Families besides.
Obser. They having rudely haled him into the Bale-dock, William Mead they left in Court, who spake as followeth.
Mead. You Men of the Jury, here I do now stand, to answer
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to an Indictment against me, which is a Bundle of Stuff, full of Lyes and Falshoods; for therein I am accused, that I met Vi & armis, illicite & tumultuose: Time was, when I had Freedom to use a carnal Weapon, and then I thought I feared no Man; but now I fear the Living God, and dare not make use thereof, nor hurt any Man; nor do I know I demeaned myself as a tumultuous Person. I say, I am a peaceable Man, therefore it is a very proper Question what William Penn demanded in this Case, An OYER of the Law, in which our Indictment is grounded.
Rec. I have made Answer to that already.
Mead, turning his Face to the jury, saith, You Men of the Jury, who are my
judges, if the Recorder will not tell you what makes a Riot, a Rout, or an unlawful Assernbly, Coke, he that once they called the Lord Coke, tells us what makes a Riot, a Rout, and an unlawful Assembly -- A Riot is when three, or more, are met together to beat a Man, or to enter forcibly into another Man's Land, to cut down his Grass, his Wood, or break down his Pales.
Obser. Here the Recorder interrupted him, and said, I thank you Sir, that you will tell me what the Law is, scornfully pulling off his Hat.
Mead. Thou mayst put on thy Hat, I have never a Fee for thee now.
Brown. He talks at random, one while an Independent, another while some other Religion, and now a Quaker, and next a Papist.
Mead. Turpe est doctori cum culpra redarguit ipsum.
May. You deserve to have your Tongue cut out.
Rec. If you discourse on this Manner, I shall take Occasion against you.
Mead. Thou didst promise me, I should have fair Liberty to be heard; why may I not have the Privilege of an Englishman? I am an Englishman, and you might be ashamed of this dealing.
Rec. I look upon you to be an Enemy to the Laws of England, which ought to be observed and kept, nor are you worthy of such Privileges, as others have.
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Mead. The Lord is judge between me and thee in this Matter.
Obser. Upon which they took him away into the Bale-dock, and the Recorder proceeded to give the jury their Charge, as followeth.
Rec. You have heard what the Indictment is. It is for preaching to the People,
and drawing a tumultuous Company after them, and Mr. Penn was speaking; if they should not be disturbed, you see they will go on; there are three or four Witnesses that have proved this, that he did preach there; that Mr. Mead did allow of it; after this, you have heard by substantial Witnesses what is said against them: Now we are upon the Matter of Fact, which you are to keep to, and observe, as what hath been fully sworn, at your Peril.
Obser. The Prisoners were put out of the Court into the Bale-dock, and the
Charge given to the jury in their Absence, at which W. P. with a very raised Voice, it being a considerable distance from the Bench, spake.
Pen. I appeal to the Jury, who are my Judges, and this great Assembly, whether the Proceedings of the Court are not most Arbitrary, and void of all Law, in offering to give the Jury their Charge in the Absence of the Prisoners; I say, it is directly opposite to, and destructive of, the undoubted Right of every English Prisoner, as Coke in the 2 Instit. 29. on the Chap. of Magna Charta, speaks.
Obser. The Recorder being thus unexpectedly lash'd for his extrajudicial Procedure, said, with an inraged Smile.
Rec. Why, ye are present, you do hear, do you not?
Pen. No thanks to the Court, that commanded me into the Bale-dock; and you of the Jury take notice, that I have not been heard, neither can you legally depart the Court, before I have been fully heard, having at least ten or twelve material Points to offer, in order to invalid their Indictment.
Rec. Pull that Fellow down, pull him down.
Mead. Are these according to the Rights and Privileges of Englishmen, that we should not be heard, but turned into the Bale-dock, for making our Defence, and the jury to have their Charge given them in our Absence; I say these are barbarous and unjust Proceedings.
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Rec. Take them away into the Hole : To hear them talk all Night, as they would, that I think doth not become the Honour of the Court, and I think you (i. e. the Jury) your selves would be tired out, and not have Patience to hear them.
Obser. The jury were commanded up to agree upon their Verdict, the Prisoners remaining in the stinking Hole. After an Hour and half's time eight came down agreed, but four remained above; the Court sent an Officer for them, and they accordingly came down. The Bench used many unworthy Threats to the four that dissented; and the Recorder, addressing himself to Bushel, said, Sir, You are the Cause of this Disturbance, and manifestly shew your self an Abettor of Faction; I shall set a Mark upon you, Sir.
J. Robinson. Mr. Bushel, I have known you near this fourteen Years; you have thrust your self upon this jury, because you think there is some Service for you. I tell you, you deserve to be indicted more than any Man that hath been brought to the Bar this Day.
Bushel. No, Sir John, there were threescore before me, and I would willingly
have got off, but could not.
Bloodw. I said, when I saw Mr. Bushel, what I see is come to pass, for I knew he would never yield. Mr. Bushel, we know what you are.
May. Sirrah, you are an impudent Fellow, I will put a Mark upon you.
Obser. They used much menacing Language, and behaved themselves very Imperiously to the Jury, as Persons not more void of justice than sober Education: After this barbarous Usage, they sent them to consider of bringing in their Verdict, and after some considerable time they returned to the Court. Silence was call'd for, and the Jury call'd by their Names.
Cla. Are you agreed upon your Verdict?
Jury. Yes.
Cla. Who shall speak for you?
Jury. Our Fore-Man.
Cla. Look upon the Prisoners at the Bar. How say you? Is William Penn
Guilty of the Matter whereof he stands indicted in Manner and Form, or Not
guilty?
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Fore-m. Guilty of Speaking in Grace-church-street.
Court. Is that all?
Fore-m. That is all I have in Commissison.
Rec. You had as good say nothing.
May. Was it not an unlawful Assembly? You mean he was speaking to a Tumult of People there?
Fore-m. My Lord, This is all I had in Commsssion.
Obser. Here some of the jury seemed to buckle to the Questions of the Court upon which, Bushel, Hammond, and some others, opposed themselves, and said, they allowed of no such Word, as an unlawful Assembly in their Verdict; at which the Recorder, Mayor, Robinson and Bloodworth took great occasion to villifie them with most opprobrious Language; and this Verdict not serving their Turns, the Recorder express'd himself thus.
Rec. The Law of England will not allow you to part till you have given in
your Verdict.
Jury. We have given in our Verdict, and we can give in no other.
Rec. Gentlemen, you have not given in your Verdict, and you had as good say nothing; therefore go and consider it once more, that we may make an end of this troublesome Business.
Jury. We desire we may have Pen, Ink and Paper.
Obser. The Court adjourn'd for half an Hour; which being expired, the Court returns, and the jury not long after.
The Prisoners were brought to the Bar, and the Jury's Names called over.
Cla. Are you agreed of your Verdict?
Jury. Yes.
Cla. Who shall speak for you?
Jur. Our Fore-man.
Cla. What say you, look upon the Prisoners: Is William Penn Guilty in Manner and Form, as he stands indicted, or Not guilty?
Fore-m. Here is our Verdict, holding forth a piece of Paper to the Clark of the Peace, which follows;
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We the Jurors, hereafter named, do find William Penn to be Guilty of Speaking or Preaching to an Assembly, met together in Gracechurch-Street, the 14th of August last, 1670. And that William Mead is Not guilty of the said Indictment.
Fore-m Thomas Veer, Charles Milson,
Edward Bushel, Gregory Walklet,
John Hammond, John Bailey,
Henry Henley William Lever,
Henry Michel, James Damask,
John Brightman, Wil. Plumsted
Obser. This both Mayor and Recorder resented as so high a rate, that they exceeded the Bounds of all Reason and Civility.
May. What will you be lead by such a silly Fellow as Bushel? an impudent canting Fellow? I warrant you, you shall come no more upon Juries in haste: You are a Fore-man indeed, addressing himself to the Fore-man, I thought you had understood your Place better.
Rec. Gentlemen, you shall not be dismist till we have a Verdict, that the Court will accept; and you shall be lock'd up, without Meat, Drink, Fire, and Tobacco ; you shall not think thus to abuse the Court; we will have a Verdict, by the help of God, or you shall starve for it.
Pen. My Jury, who are my Judges, ought not to be thus menaced; their Verdict should be free, and not compelled; the Bench ought to wait upon them, but not forestall them. I do desire that Justice may be done me, and that the Arbitrary Resolves of the Bench may not be made the Measure of my Jury's Verdict.
Rec. Stop that prating Fellow's Mouth, or put him out of the Court.
May. You have heard that he preach'd, that he gathered a Company of tumultuous People, and that they do not only disobey the Martial Power, but Civil also.
Pen. It is a great Mistake; we did not make the Tumult, but they that interrupted us: The Jury cannot be so ignorant,
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as to think, that we met there, with a Design to disturb the Civil Peace, since (Ist.) we were by Force of Arms kept out of our lawful House, and met as near it in the Street, as their soldiers would give us leave; and (2dly.) because it was no new thing (nor with the Circumstances expres'd in the Indictment) but what was usual and customary with us; 'tis very well known that we are a peaceable People, and cannot offer Violence to any Man.
Obser. The Court being ready to break up, and willing to huddle the Prisoners to their Goal, and the jury to their Chamber, Penn spoke as follows:
Pen. The Agreement of Twelve Men is a Verdict in Law, and such a one being given by the Jury, I require the Clark of the Peace to record it, as he will answer it at his Peril. And if the jury bring in an other Verdict contradictory to this, I affirm they are perjur'd Men in Law. And looking upon the jury, said, You are English-men, mind your Privilege, give not away your Right.
Bush. &c. Nor will we ever do it.
Obser. One of the Jury-men pleaded Indisposition of Body, and therefore desired to be dismist.
May. You are as strong as any of them; starve with them; and hold your
Principles.
Rec. Gentlemen, You must be contented with your hard Fate, let your Patience overcome it; for the Court is resolved to have a Verdict, and that before you can be dismist.
Jury. We are agreed, we are agreed, we are agreed.
Obser. The Court swore several Persons, to keep the Jury all Night without
Meat, Drink, Fire, or any other Accommodation; they had not so much as a Chamber pot, tho' desired.
Cry. O Yes, &c.
Obser. The Court adjourns till Seven of the Clock next Morning (being the 4th Instant, vulgarly call'd Sunday) at which time the Prisoners were brought to the Bar: The Court sate, and the Jury called to bring in their Verdict.
Cry. O Yes, &c. --- Silence in the Court, upon pain of Imprisonment.
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The Jury's Names called over.
Cla. Are you agreed upon your Verdict?
Jur. Yes.
Cla. Who shall speak for you?
Jur. Our Fore-man.
Cla. What say you? Look upon the Prisoners at the Bar. Is William Penn
Guilty of the Matter whereof he stands indicted, in Manner and Form as aforesaid, or Not guilty?
Fore-m. William Penn is guilty of Speaking in Gratious-street.
May. To an unlawful Assembly?
Bush. No, my Lord, we give no other Verdict than what we gave last Night; we have no other Verdict to give.
May. You are a factious Fellow, I'll take a Course with you.
Blood. I knew Mr. Bushel would not yield.
Bush.. Sir Tho. I have done according to my Conscience.
May. That Conscience of yours would cut my Throat.
Bush. No, my Lord, it never shall.
May. But I will cut yours so soon as I can.
Rec. He has inspired the Jury; he has the Spirit of Divination, methinks I feel
him. I will have a positive Verdict, or you shall starve for it.
Pen. I desire to ask the Recorder one Question, Do you allow of the Verdict
given of William Mead?
Rec. It cannot be a Verdict, because you were indicted for a Conspiracy, and one being found Not guilty, and not the other, it could not be a Verdict.
Pen. If Not guilty be not a Verdict, then you make of the jury and Magna
Charta but a meer Nose of Wax.5
Mead. How! is Not guilty no Verdict?
Rec. No, tis no Verdict.
Pen. I affirm, that the Consent of a Jury is a Verdict in Law; and if William Mead be Not guilty, it consequently follows, that I am clear, since you have indicted us of a Conspiracy, and I could not possibly conspire alone.
Obser. There were many Passages, that could not be taken, which past between the Jury and the Court. The Jury went up
[19]
again, having received a fresh Charge from the Bench, if possible to extort an unjust Verdict.
Cry. O Yes, &c. --- Silence in the Court.
Cour. Call over the Jury. --- Which was done.
Cla. What say you? Is William Penn Guilty of the Matter whereof he stands indicted, in Manner and Form aforesaid, or Not Guilty?
Fore-man. Guilty of speaking in Gratious-street.
Rec. What is this to the Purpose? I say, I will have a Verdict. And speaking
to E. Bushel, said, You are a factious Fellow; I will set a Mark upon you; and whilst I have anything to do in the City, I will have an eye upon you.
May. Have you no more Wit than to be led by such a pitiful Fellow? I will cut his Nose.
Pen. It is intolerable that my jury should be thus menaced: Is this according
to the Fundamental Laws? Are not they my proper judges by the great Charter of England? What hope is there of ever having justice done, when juries are threatened, and their Verdicts rejected? I am concerned to speak and grieved to see such Arbitrary Proceedings. Did not the Lieutenant of the Tower render one of them worse than a Felon? And do you not plainly seem to condemn such for factious Fellows, who answer not your Ends? Unhappy are those Juries, who are threatened to be fined, and starved, and ruined, if they give not in Verdicts contrary to their Consciences..
Rec. My Lord, you must take a Course with that same Fellow.
May. Stop his Mouth; Jaylor, bring Fetters, and stake him to the Ground.
Pen. Do your Pleasure, I matter not your Fetters.
Rec. Till now I never understood the Reason of the Policy and Prudence of the Spaniards, in suffering the Inquisition among them: And certainly it will never
be well with us, till something like unto the Spanish Inquisition be in England.
Obser. The Jury being required to go together to find another Verdict, and stedfastly refusing it (saying they could give no other Verdict than what was already given) the Recorder in great Passion was running off the Bench,
[20]
with these Words in his Mouth, I protest I will sit here no longer to hear these Things; at which the Mayor calling, Stay, stay, he returned, and directed
himself unto the jury, and spoke as followeth
Rec. Gentlemen, we shall not be at this trade always with you; you will find the next Sessions of Parliament there will be a Law made, that those that will not conform shall not have the Protection of the Law. Mr. Lee, draw up another Verdict, that they may bring it in Special.
Lee. I cannot tell how to do it.
Jur. We ought not to be return'd, having all agreed, and set our Hands to the
Verdict.
Rec. Your Verdict is nothing, you play upon the Court; I say you shall go together, and bring in another Verdict, or you shall starve; and I will have you
carted about the City, as in Edward the third's time.
Fore-m. We have given in our Verdict, and all agreed to it; and if we give in an other, it will be a Force upon us to save our Lives.
May. Take them up.
Offic. My Lord, they will not go up.
Obser. The Mayor spoke to the Sheriff, and he came off of his seat, and said,
Sher. Come, Gentlemen, you must go up; you see I am commanded to make you go.
Obser. Upon which the Jury went up; and several sworn to keep them without any Accommodation, as aforesaid, till they brought in their Verdict.
Cry. O yes, &c. The Court adjourns till to morrow morning, at seven of the
clock.
Obser. The Prisoners were remanded to New-gate, where they remained till next Morning, and then were brought unto the Court, which being sat, they proceeded as followeth.
Cry. O yes, &c. --- Silence in the Court, upon pain of Imprisonment.
Cla. Set William Penn and William Mead to the Bar. Gentlemen of the jury,
answer to your Names: Tho. Veer, Edw. Bushel, John Hammond, Henry Henly, Henry Michell, John Brightman, Charles Milson, Gregory Walklet, John Baily, William Leaver
[21]
James Damask, William Plumstead. Are you all agreed of your Verdict?
Jur. Yes.
Cla. Who shall speak for you?
Jur. Our Fore-man.
Cla. Look upon the Prisoners. What say you? Is William Penn Guilty of the
Matter whereof he stands indicted, in Manner and Form, &c., or Not guilty?
Fore-man. Here is our Verdict in Writing, and our Hands subscribed.
Obser. The clerk had the paper, but was stopt by the Recorder from reading of it; and he commanded to ask for a positive Verdict.
Fore-man. That is our Verdict; we have subscribed to it.
Cla. How say you? Is William Penn Guilty, &c., or Not guilty?
Fore-man. Not guilty.
Cla. How say you? Is William Mead Guilty, &c., or Not guilty?
Fore-m. Not guilty.
Cla. Then hearken to your Verdict; you say that William Penn is Not Guilty
in Manner and Form as he stands indicted; you say that Williain Mead is Not guilty in Manner and Form as he stands indicted, and so you say all?
Jur. Yes, we do so.
Obser. The Bench being unsatisfied with the Verdict, commanded that every
Person should distinctly answer to their Names, and give in their Verdict, which
they unanimously did, in saying, Not Guilty, to the great Satisfaction of the Assembly.
Recorder. I am sorry, Gentlemen, you have followed your own Judgments and Opinions, rather than the good and wholsome Advice, which was given you; God keep my Life out of your Hands; but for this the Court Fines you forty Mark a Man; and Imprisonment till paid. At which Penn stept up towards the Bench, and said
[22]
Pen. I demand my Liberty, being freed by the Jury.
May. No, you are in for your Fines.
Pen. Fines, for what?
May. For contempt of the Court.
Pen. I ask, if it be according to the Fundamental Laws of England, that any
English men should be Fined or Amerced, but by the judgment of his Peers or Jury; since it expresly contradicts the fourteenth and twenty-ninth Chap. of the Great Charter of England, which say, No Free-man ought to be amerced, but by the Oath of good and lawfull men of the Vicinage.
Rec. Take him away, Take him away, take him out of the Court.
Pen. I can never urge the Fundamental Laws of England, but you cry, Take him away, take him away. But tis no wonder, Since the Spanish Inquisition hath so great a place in the Recorder's Heart. God Almighty, who is just, will judge you all for these things.
Obser. They haled the Prisoners into the Bale-dock, and from thence sent them to Newgate, for Non-payment of their Fines; and so were their Jury. [But the Jury were afterwards discharged upon an Habeas Corpus, returnable in the Common Pleas, where their commitment was adjudged illegal. Vaugh. Rep. 135-150. 2 A COMPLETE COLLECTION OF STATE TRIALS 612]
[23]
Additional endnotes:
1. Recorder: Formerly, a certain magistrate or judge having criminal and civil jurisdiction in a city or borough. Now, in England and Wales, a barrister or solicitor appointed as a part-time judge presiding esp. over certain Crown Courts.
The Recorder was originally a person with legal knowledge appointed by the mayor and aldermen to ‘record’ or keep in mind the proceedings of their courts and the customs of the city, his oral statement of these being taken as the highest evidence of fact. The Recorder of London, to whom most of the early evidence refers, is still appointed by the court of aldermen; elsewhere the appointment is made by the crown, the duties of the office being regulated by the Municipal Corporations Act of 5 and 6 William IV and subsequent enactments. OXFORD ENGLISH DICTIONARY, 1989. In the proceedings above, the Recorder's words are signified by the abbreviation Rec.
2. Cla.=The court clerk, or what was then pronounced and spelled "clark."
3. The Observer is William Penn, the author of the pamphlet.
4. Bale-dock, bail-dock - : At the Old Bailey, London, a small room taken from one of the corners of the court, and left open at the top; in which during the trials, are put some of the malefactors. 1670, Penn, Truth Rescued: "I wast put in the Bale-dock for Turbulency and Impertinency". OXFORD ENGLISH DICTIONARY, 1989.
5. A nose of wax, a thing easily turned or moulded in any way desired; a person easily influenced, one of a weak character. 1532 TINDALE Expos. Matt. vi. 23 "If the Scripture be contrary, then make it a nose of wax and wrest it this way and that way till it agree." OXFORD ENGLISH DICTIONARY, 1989.
Asssrted [sic]
in the
TRYAL
of William Penn, and William Mead
At the Sessions held at the Old-Baily in London, the
first, third, fourth and fifth of Sept. 70 against
the most Arbitrary procedure of that Court.
Printed in the Year, 1670
To the English Reader
If ever it were time to speak or write, it is now, so many strange occurrences requiring both. How much thou art concerned in this ensuing Trial, where not only the Prisoners, but the Fundamental Laws of England, have been most arbitrarily arraigned, read, and thou mayest plainly judge.
Liberty of Conscience is counted a pretence for Rebellion, and religious assemblies, routs, and riots; and the defenders of both, are them, reputed factious and disaffected.
Magna Charta, is Magnaf----- with the Recorder of London1 ; and to demand right an affront to the court.
Will and Power are their great charter, but to call for England's, is a crime, incurring the penalty of their Bale-dock, and Nasty-hole, nay, the menace of a Gag, and Iron Shackles too.
The Jury, though proper judges of law and fact, they would have over-ruled in both, as if their Verdict signified no more, than to echo back the illegal Charge of the Bench ; and because their courage and honesty did more than bold pace with the threat and abuse of those, who sat as judges, after two days and two nights restraint for a verdict, in the end were fined and imprisoned, forgiving it.
O ! what monstrous, and illegal proceedings are these ? Who reasonably can call his coat his own ? When property is made subservient to the will and interest of his judges ; or, who can truly esteem himself a free man ? When all pleas for liberty are esteemed sedition, and the laws, that give, and maintain them, so many insignificant pieces of formality.
And what do they less than plainly tell us so, who at will and pleasure break open our locks, rob our houses, raze their foundations, imprison our persons, and finally deny us justice to our relief; as if they then acted most like christian men, when they were most barbarous, in ruining such, as really are so ; and that no sacrifice could be so acceptable to God, as the destruction of those, that most fear him.
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In short, That the conscientious should only be obnoxious, and the just demand of our religious liberty, the reason, why we should be denied our civil freedom, as if to be a Christian and an Englishman were inconsistent, and that so much solicitude and deep contrivance, should be employed only, to ensnare, and ruin, so many ten thousand conscientious families, so eminently industrious, serviceable, and exemplary, whilst murder can so easily obtain pardons, rapes be remitted, public uncleanness pass unpunished, and all manner of levity, prodigality, excess, profaneness, and atheism, universally connived at; if not in some respect manifestly encouraged, cannot but be detestably abhorrent, to every serious and honest mind.
Yet that this lamentable state is true, and the present project in hand, let the London's Recorder, and Canterbury's Chaplain be heard.
The first in his public panegyric, upon the Spanish Inquisition, highly admiring, the prudence of the Romish Church, in the erection of it, as an excellent way to prevent Schism, which unhappy expression, at once passeth sentence, both against our fundamental laws, and Protestant Reformation.
The second, In his printed mercenary Discourse against Toleration, asserting for a main principle, That it would be less injurious to the government, to dispense with prophane and loose persons, than to allow a toleration to religious dissenters: It were to over-do the business, to say any more, where; there is so much said already.
And therefore to conclude, we cannot choose but admonish all, as well persecutors to relinquish their heady, partial, and inhuman prosecutions, as what will certainly issue in disgrace here, and inevitable condign punishment hereafter, as those who yet dare express their moderation, however out of fashion, or made the brand, of fanaticism, not to be huffed, or menaced, out of that excellent temper, to make their parts, and persons subservient to the base humours, and sinister designs of the biggest mortal upon earth : But to reverence and obey the eternal just God, before whose great tribunal all must render their accounts, and where he will recompence to every person according to his works.
[4]
The Tryal of William Penn and William Mead
As there can be no Observation, where there is no Action; so its impossible, there should be a judicious intelligence, without due Observation.
And since there can be nothing more seasonable than a right information, especially of Public Acts; and well knowing, how industrious some will be, to mis-represent this Trial to the disadvantage of the Cause and Prisoners, it was thought requisite, in defence of both, and for the satisfaction of the People, to make it more public ; nor can there be any business wherein the People of England are more concerned, than in that which relates to their civil and Religious Liberties, questioned in the Persons above named, at the Old-Bailey, the 1st, 3rd, 4th, and 5th, of Sept. 1670.
There being present on the Bench, as Justices Sam Starling, Mayor. John Roberson, Alderm.
Tho. Howell, Recorder. Joseph Sheldon, Alderm.
Tho. Bludworth, Alderm. Richard Browne
William Peak, Alderm. John Smith,
Richard Ford, Alderm. James Edwards, } Sheriffs
The Citizens of London that were summoned for Jurors,
appearing, were impannelled, viz.,
Cla.2 Call over the Jury.
Cryer. O Yes! Thomas Veer, Ed. Bushel, John Hammond, Charles Milson, Gregory Walklet, John Brightman, William Plumsted, Henry Henley, Thomas Damask, Henry Michel, William Lever, John Baily.
The Form of the Oath
You shall well and truly Try, and true Deliverance make betwixt our Sovereign Lord the King, and the Prisoners at the Bar, according to your Evidence. So help you God.
[5]
The indictment
That William Penn, Gent. and William Mead, late of London, Linnen-Draper, with divers other Persons to the Jurors unknown, to the Number of 300, the 14th Day of August, in the 22d Year of the King, about Eleven of the Clock in the Forenoon, the same Day, with Force and Arms, &c. in the Parish of St. BentGrace-Church in Bridge-Ward, London, in the Street called Grace-Church-Street, unlawfully and tumultuously did Assemble and Congregate themselves together, to the Disturbance of the Peace of the said Lord the King: And the aforesaid William Penn and William Mead, together with other Persons to the Jurors aforesaid unknown, then and there so Assembled and Congregated together; the aforesaid William Penn, by Agreement between him and William Mead before made, and by Abetment of the aforesaid William Mead, then and there, in the open Street, did take upon himself to Preach and Speak, and then and there did Preach and Speak unto the aforesaid William
Mead, and other Persons there, in the Street aforesaid, being Assembled and Congregated together, by Reason whereof a great Concourse and Tumult of People in the Street aforesaid, then and there, a long time did remain and continue, in contempt of the said Lord the King, and of his Law, to the great Disturbance of his Peace; to the great Terror and Disturbance of many of his Leige People and Subjects, to the ill Exampleof all others in the like Case Offenders, and against the Peace of the said Lord the King, his Crown and Dignity.
What say you, William Penn and William Mead, are you Guilty, as you stand
indicted, in Manner and Form, as aforesaid, or Not Guilty?
Pen. It is impossible, that we should be able to remember the Indictment verbatim, and therefore we desire a Copy of it, as is customary in the like Occasions.
Recorder. You must first plead to the Indictment, before you can have a Copy of it.
Pen. I am unacquaninted [sic] with the Formality of the Law, and therefore, before I shall answer directly, I request two Things
[6]
of the Court. First, that no Advantage may be taken against me, nor I deprived of any Benefit, which I might otherwise have received. Secondly, that you will promise me a fair hearing, and liberty of making my Defence.
Court. No Advantage shall be taken against you; you shall have Liberty; you shall be heard.
Pen. Then I plead Not Guilty in Manner and Form.
Cla. What sayest thou, William Mead, art thou Guilty in Manner and Form, as thou standest indicted, or Not Guilty?
Mead. I shall desire the same Liberty as is promised William Penn.
Court. You shall have it.
Mead. Then I plead Not guilty in Manner and Form.
The Court adjourn'd until the Afternoon.
Cryer. O Yes, &c.
Cla. Bring William Penn and William Mead to the Bar.
Obser.3 The said Prisoners were brought, but were set aside, and other
Business prosecuted. Where we cannot choose but observe, that it was the constant and unkind Practices of the Court to the Prisoners, to make them wait upon the Trials of Felons and Murderers, thereby designing, in all probability, both to affront and tire them.
After five Hours Attendance, the Court broke up and adjourned to the third Instant.
The third of September 1670, the Court sate.
Cryer. O Yes, &c.
Cla. Bring William Penn and William Mead to the Bar.
Mayor. Sirrah, who bid you put off their Hats? Put on their Hats again.
Obser. Whereupon one of the Officers putting the Prisoners Hats upon their
Heads (pursuant to the Order of the Court) brought them to the Bar.
Record. Do you know where you are?
Pen. Yes.
Record. Do not you know it is the King's Court?
[7]
Pen. I know it to be a Court, and I suppose it to be the King's Court.
Record. Do you not know there is Respect due to the Court?
Pen. Yes.
Record. Why do you not pay it then?
Pen. I do so.
Record. Why do you not pull off your Hat then?
Pen. Because I do not believe that to be any Respect.
Record. Well, the Court sets forty Marks a piece upon your Heads, as a Fine for your Contempt of the Court.
Pen. I desire it might be observed, that we came into the Court with our Hats off (that is, taken off) and if they have been put on since, it was by Order from the Bench; and therefore not we, but the Bench should be fined.
Mead. I have a Question to ask the Recorder. Am I fined also?
Record. Yes.
Mead. I desire the jury, and all People to take notice of this Injustice of the Recorder; who spake to me to pull off my Hat? and yet hath he put a Fine upon my Head. O fear the Lord, and dread his Power, and yield to the Guidance of his Holy Spirit, for he is not far from every one of you.
The jury sworn again.
Obser. J. Robinson Lieutenant of the Tower, disingenuously objected against Edw. Bushel, as if he had not kiss'd the Book, and therefore would have him sworn again; tho' indeed it was on purpose to have made use of his Tenderness of Conscience in avoiding reiterated Oaths, to have put him by his being a jury-man, apprehending him to be a Person not fit to answer their Arbitrary Ends.
The Clark read the Indictment, as aforesaid.
Cla. Cryer, Call James Cook into the Court, give him his Oath.
Cla. James Cook, lay your Hand upon the Book. The Evidence you shall give to the Court, betwixt our Sovereign the King, and the Prisoners at the Bar, shall be the Truth, and the whole Truth, and nothing but the Truth. So help you God.
Cook. I was sent for, from the Exchange, to go and disperse a Meeting in
Gracechurch-Street, where I saw Mr. Penn speaking to the People
[8]
but I could not hear what he said, because of the Noise; I endeavoured to make way to take him, but I could not get to him for the Crowd of People; upon which Capt. Mead came to me, about the Kennel of the Street, and desired me to let him go on; for when he had done, he would bring Mr. Penn to me.
Court. What Number do you think might be there?
Cook. About three or four Hundred People.
Court. Call Richard Read, give him his Oath.
Read being sworn was ask'd, What do you know concerning the Prisoners at the Bar?
Read. My Lord, I went to Gracechurch-Street, where I found a great Crowd of People, and I heard Mr. Penn preach to them; and I saw Capt. Mead speaking to Lieutenant Cook, but what he said, I could not tell.
Mead. What did William Penn say?
Read. There was such a great Noise, that I could not tell what he said.
Mead. Jury, observe this Evidence, He saith he heard him Preach, and yet saith, he doth not know what he said.
Jury, take notice, he swears now a clean contrary thing to what he swore before the Mayor when we were committed: For now he swears that he saw me in Gracechurch-Street, and yet swore before the Mayor, when I was committed, that he did not see me there. I appeal to the Mayor himself, if this be not true. But no Answer was given.
Court. What Number do you think might be there?
Read. About four or five hundred.
Pen. I desire to know of him what Day it was?
Read. The 14th Day of August.
Pen. Did he speak to me, or let me know he was there; for I am very sure I
never saw him.
Cla. Cryer, call ----- ----- into the Court.
Cla. Give him his Oath.
-----My Lord, I saw a great Number of People, and Mr. Penn I suppose was speaking; I saw him make a Motion with his Hands, and heard some Noise, but could not understand what he said. But for Capt. Mead, I did not see him there.
Rec. What say you, Mr. Mead, were you there?
[9]
Mead. It is a Maxime in your own Law, Nemo tenetur accusare seipsum, which if it be not true Latin, I am sure it is true English, That no Man is bound to accuse himself : And why dost thou offer to ensnare me with such a Question? Doth not this shew thy Malice? Is this like unto a judge, that ought to be Counsel for the Prisoner at the Bar?
Rec. Sir, hold your Tongue, I did not go about to ensnare you.
Pen. I desire we may come more close to the Point, and that Silence be commanded in the Court.
Cryer. O yes, all manner of Persons keep Silence upon Pain of Imprisonment ----- Silence in the Court.
Pen. We confess our selves to be so far from recanting, or declining to vindicate the Assembling of our selves to Preach, Pray, or Worship the Eternal, Holy, Just God, that we declare to all the World, that we do believe it to be our indispensable Duty, to meet incessantly upon so good an Account; nor shall all the Powers upon Earth be able to divert us from reverencing and adoring our God who made it.
Brown. You are not here for worshipping God, but for breaking the Law; you do yourselves a great deal of Wrong in going on in that Discourse.
Pen. I affirm I have broken no Law, nor am I Guilty of the Indictment that is
laid to my Charge; and to the End the Bench, the Jury, and my self, with these that hear us, may have a more direct Understanding of this Procedure, I desire you would let me know by what Law it is you prosecute me, and upon what Law you ground my Indictment.
Rec. Upon the Common-Law.
Pen. Where is that Common Law?
Rec. You must not think that I am able to run up so many Years, and over so many adjudged Cases, which we call Common-Law, to answer your Curiosity.
Pen. This Answer I am sure is very short of my Question, for if it be Common, it should not be so hard to produce.
Rec. Sir, will you plead to your Indictment?
Pen. Shall I plead to an Indictment that hath no Foundation in Law? If it
contain that Law you say I have broken, why should
[10]
should you decline to produce that Law, since it will be impossible for the Jury to determine, or agree to bring in their Verdict, who have not the Law produced, by which they should measure the Truth of this Indictment, and the Guilt, or
contrary of my Fact?
Rec. You are a sawcy Fellow, speak to the Indictment.
Pen. I say, it is my place to speak to Matter of Law; I am arraign'd a Prisoner; my liberty, which is next to Life itself, is now concerned: You are many Mouths and Ears against me, and if I must not allowed to make the best of my Case, it is hard. I say again, unless you shew me, and the People, the Law you ground your Indictment upon, I shall take it for granted your Proceedings are meerly Arbitrary.
Rec. The Question is, whether you are guilty of this Indictment?
Pen. The Question is not whether I am Guilty of this Indictment, but whether this Indictment be legal. It is too general and imperfect an Answer, to say it is the Common-Law, unless we knew both where, and what it is: For where there is no Law, there is no Transgression; and that Law which is not in being, is so far from being Common, that it is no Law at all.
Rec. You are an impertinent Fellow, will you teach the Court what Law is?
It's Lex non scripta, that which many have studied thirty or forty Years to know, and would you have me to tell you in a Moment?
Pen. Certainly, if the Common-Law be so hard to be understood, it's far from being very Common; but if the Lord Coke, in his Institutes, be of any Consideration, he tells us, That Common-Law is Common Right, and that Common Right is the Great Charter-Privileges: Confirmed 9 Hen. 3.
29. 25 Edw. I. 1. 2 Edw. 3. 8. Cook Instit. 2 p. 56.
Rec. Sir, you are a troublesome Fellow, and it is not for the Honour of the Court to suffer you to go on.
Pen. I have asked but one Question, and you have not answer'd me; tho' the Rights and Privileges of every English-man be concerned in it.
[11]
Rec. If I should suffer you to ask Questions till to Morrow Morning, you would be never the wiser.
Pen. That is according as the Answers are.
Rec. Sir, we must not stand to hear you talk all Night.
Pen. I design no Affront to the Court, but to be heard in my just Plea: And I must plainly tell you, that if you will deny me Oyer of that Law, which you suggest I have broken, you do at once deny me an acknowledged Right, and evidence to the whole World your Resolution to sacrifice the Privileges of Englishmen to your sinister and Arbitrary Designs.
Rec. Take him away. My Lord, if you take not some Course with this pestilent Fellow, to stop his Mouth, we shall not be able to do any thing to Night.
Mayor. Take him away, take him away, turn him into the Bale-dock.4
Pen. These are but so many vain Exclamations; is this justice or true Judgment? Must I therefore be taken away because I plead for the Fundamental Laws of England? However, this I leave upon your Consciences, who are of the Jury (and my sole Judges) that if these Ancient Fundamental Laws, which relate to Liberty and Property, and (are not limited to particular Persuasions in Matters of Religion) must not be indispensibly maintained and observed. Who can say he hath Right to the Coat upon his Back? Certainly our Liberties are openly to be invaded, our Wives to be ravished, our Children slaved, our Families ruined, and our Estates led away in Triumph, by every sturdy Beggar and malicious Informer, as their Trophies, but our (pretended) Forfeits for Conscience sake. The Lord of Heaven and Earth will be Judge between us in this Matter.
Rec. Be silent there.
Pen. I am not to be silent in a Case wherein I am so much concerned, and
not only my self, but many ten thousand Families besides.
Obser. They having rudely haled him into the Bale-dock, William Mead they left in Court, who spake as followeth.
Mead. You Men of the Jury, here I do now stand, to answer
[12]
to an Indictment against me, which is a Bundle of Stuff, full of Lyes and Falshoods; for therein I am accused, that I met Vi & armis, illicite & tumultuose: Time was, when I had Freedom to use a carnal Weapon, and then I thought I feared no Man; but now I fear the Living God, and dare not make use thereof, nor hurt any Man; nor do I know I demeaned myself as a tumultuous Person. I say, I am a peaceable Man, therefore it is a very proper Question what William Penn demanded in this Case, An OYER of the Law, in which our Indictment is grounded.
Rec. I have made Answer to that already.
Mead, turning his Face to the jury, saith, You Men of the Jury, who are my
judges, if the Recorder will not tell you what makes a Riot, a Rout, or an unlawful Assernbly, Coke, he that once they called the Lord Coke, tells us what makes a Riot, a Rout, and an unlawful Assembly -- A Riot is when three, or more, are met together to beat a Man, or to enter forcibly into another Man's Land, to cut down his Grass, his Wood, or break down his Pales.
Obser. Here the Recorder interrupted him, and said, I thank you Sir, that you will tell me what the Law is, scornfully pulling off his Hat.
Mead. Thou mayst put on thy Hat, I have never a Fee for thee now.
Brown. He talks at random, one while an Independent, another while some other Religion, and now a Quaker, and next a Papist.
Mead. Turpe est doctori cum culpra redarguit ipsum.
May. You deserve to have your Tongue cut out.
Rec. If you discourse on this Manner, I shall take Occasion against you.
Mead. Thou didst promise me, I should have fair Liberty to be heard; why may I not have the Privilege of an Englishman? I am an Englishman, and you might be ashamed of this dealing.
Rec. I look upon you to be an Enemy to the Laws of England, which ought to be observed and kept, nor are you worthy of such Privileges, as others have.
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Mead. The Lord is judge between me and thee in this Matter.
Obser. Upon which they took him away into the Bale-dock, and the Recorder proceeded to give the jury their Charge, as followeth.
Rec. You have heard what the Indictment is. It is for preaching to the People,
and drawing a tumultuous Company after them, and Mr. Penn was speaking; if they should not be disturbed, you see they will go on; there are three or four Witnesses that have proved this, that he did preach there; that Mr. Mead did allow of it; after this, you have heard by substantial Witnesses what is said against them: Now we are upon the Matter of Fact, which you are to keep to, and observe, as what hath been fully sworn, at your Peril.
Obser. The Prisoners were put out of the Court into the Bale-dock, and the
Charge given to the jury in their Absence, at which W. P. with a very raised Voice, it being a considerable distance from the Bench, spake.
Pen. I appeal to the Jury, who are my Judges, and this great Assembly, whether the Proceedings of the Court are not most Arbitrary, and void of all Law, in offering to give the Jury their Charge in the Absence of the Prisoners; I say, it is directly opposite to, and destructive of, the undoubted Right of every English Prisoner, as Coke in the 2 Instit. 29. on the Chap. of Magna Charta, speaks.
Obser. The Recorder being thus unexpectedly lash'd for his extrajudicial Procedure, said, with an inraged Smile.
Rec. Why, ye are present, you do hear, do you not?
Pen. No thanks to the Court, that commanded me into the Bale-dock; and you of the Jury take notice, that I have not been heard, neither can you legally depart the Court, before I have been fully heard, having at least ten or twelve material Points to offer, in order to invalid their Indictment.
Rec. Pull that Fellow down, pull him down.
Mead. Are these according to the Rights and Privileges of Englishmen, that we should not be heard, but turned into the Bale-dock, for making our Defence, and the jury to have their Charge given them in our Absence; I say these are barbarous and unjust Proceedings.
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Rec. Take them away into the Hole : To hear them talk all Night, as they would, that I think doth not become the Honour of the Court, and I think you (i. e. the Jury) your selves would be tired out, and not have Patience to hear them.
Obser. The jury were commanded up to agree upon their Verdict, the Prisoners remaining in the stinking Hole. After an Hour and half's time eight came down agreed, but four remained above; the Court sent an Officer for them, and they accordingly came down. The Bench used many unworthy Threats to the four that dissented; and the Recorder, addressing himself to Bushel, said, Sir, You are the Cause of this Disturbance, and manifestly shew your self an Abettor of Faction; I shall set a Mark upon you, Sir.
J. Robinson. Mr. Bushel, I have known you near this fourteen Years; you have thrust your self upon this jury, because you think there is some Service for you. I tell you, you deserve to be indicted more than any Man that hath been brought to the Bar this Day.
Bushel. No, Sir John, there were threescore before me, and I would willingly
have got off, but could not.
Bloodw. I said, when I saw Mr. Bushel, what I see is come to pass, for I knew he would never yield. Mr. Bushel, we know what you are.
May. Sirrah, you are an impudent Fellow, I will put a Mark upon you.
Obser. They used much menacing Language, and behaved themselves very Imperiously to the Jury, as Persons not more void of justice than sober Education: After this barbarous Usage, they sent them to consider of bringing in their Verdict, and after some considerable time they returned to the Court. Silence was call'd for, and the Jury call'd by their Names.
Cla. Are you agreed upon your Verdict?
Jury. Yes.
Cla. Who shall speak for you?
Jury. Our Fore-Man.
Cla. Look upon the Prisoners at the Bar. How say you? Is William Penn
Guilty of the Matter whereof he stands indicted in Manner and Form, or Not
guilty?
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Fore-m. Guilty of Speaking in Grace-church-street.
Court. Is that all?
Fore-m. That is all I have in Commissison.
Rec. You had as good say nothing.
May. Was it not an unlawful Assembly? You mean he was speaking to a Tumult of People there?
Fore-m. My Lord, This is all I had in Commsssion.
Obser. Here some of the jury seemed to buckle to the Questions of the Court upon which, Bushel, Hammond, and some others, opposed themselves, and said, they allowed of no such Word, as an unlawful Assembly in their Verdict; at which the Recorder, Mayor, Robinson and Bloodworth took great occasion to villifie them with most opprobrious Language; and this Verdict not serving their Turns, the Recorder express'd himself thus.
Rec. The Law of England will not allow you to part till you have given in
your Verdict.
Jury. We have given in our Verdict, and we can give in no other.
Rec. Gentlemen, you have not given in your Verdict, and you had as good say nothing; therefore go and consider it once more, that we may make an end of this troublesome Business.
Jury. We desire we may have Pen, Ink and Paper.
Obser. The Court adjourn'd for half an Hour; which being expired, the Court returns, and the jury not long after.
The Prisoners were brought to the Bar, and the Jury's Names called over.
Cla. Are you agreed of your Verdict?
Jury. Yes.
Cla. Who shall speak for you?
Jur. Our Fore-man.
Cla. What say you, look upon the Prisoners: Is William Penn Guilty in Manner and Form, as he stands indicted, or Not guilty?
Fore-m. Here is our Verdict, holding forth a piece of Paper to the Clark of the Peace, which follows;
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We the Jurors, hereafter named, do find William Penn to be Guilty of Speaking or Preaching to an Assembly, met together in Gracechurch-Street, the 14th of August last, 1670. And that William Mead is Not guilty of the said Indictment.
Fore-m Thomas Veer, Charles Milson,
Edward Bushel, Gregory Walklet,
John Hammond, John Bailey,
Henry Henley William Lever,
Henry Michel, James Damask,
John Brightman, Wil. Plumsted
Obser. This both Mayor and Recorder resented as so high a rate, that they exceeded the Bounds of all Reason and Civility.
May. What will you be lead by such a silly Fellow as Bushel? an impudent canting Fellow? I warrant you, you shall come no more upon Juries in haste: You are a Fore-man indeed, addressing himself to the Fore-man, I thought you had understood your Place better.
Rec. Gentlemen, you shall not be dismist till we have a Verdict, that the Court will accept; and you shall be lock'd up, without Meat, Drink, Fire, and Tobacco ; you shall not think thus to abuse the Court; we will have a Verdict, by the help of God, or you shall starve for it.
Pen. My Jury, who are my Judges, ought not to be thus menaced; their Verdict should be free, and not compelled; the Bench ought to wait upon them, but not forestall them. I do desire that Justice may be done me, and that the Arbitrary Resolves of the Bench may not be made the Measure of my Jury's Verdict.
Rec. Stop that prating Fellow's Mouth, or put him out of the Court.
May. You have heard that he preach'd, that he gathered a Company of tumultuous People, and that they do not only disobey the Martial Power, but Civil also.
Pen. It is a great Mistake; we did not make the Tumult, but they that interrupted us: The Jury cannot be so ignorant,
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as to think, that we met there, with a Design to disturb the Civil Peace, since (Ist.) we were by Force of Arms kept out of our lawful House, and met as near it in the Street, as their soldiers would give us leave; and (2dly.) because it was no new thing (nor with the Circumstances expres'd in the Indictment) but what was usual and customary with us; 'tis very well known that we are a peaceable People, and cannot offer Violence to any Man.
Obser. The Court being ready to break up, and willing to huddle the Prisoners to their Goal, and the jury to their Chamber, Penn spoke as follows:
Pen. The Agreement of Twelve Men is a Verdict in Law, and such a one being given by the Jury, I require the Clark of the Peace to record it, as he will answer it at his Peril. And if the jury bring in an other Verdict contradictory to this, I affirm they are perjur'd Men in Law. And looking upon the jury, said, You are English-men, mind your Privilege, give not away your Right.
Bush. &c. Nor will we ever do it.
Obser. One of the Jury-men pleaded Indisposition of Body, and therefore desired to be dismist.
May. You are as strong as any of them; starve with them; and hold your
Principles.
Rec. Gentlemen, You must be contented with your hard Fate, let your Patience overcome it; for the Court is resolved to have a Verdict, and that before you can be dismist.
Jury. We are agreed, we are agreed, we are agreed.
Obser. The Court swore several Persons, to keep the Jury all Night without
Meat, Drink, Fire, or any other Accommodation; they had not so much as a Chamber pot, tho' desired.
Cry. O Yes, &c.
Obser. The Court adjourns till Seven of the Clock next Morning (being the 4th Instant, vulgarly call'd Sunday) at which time the Prisoners were brought to the Bar: The Court sate, and the Jury called to bring in their Verdict.
Cry. O Yes, &c. --- Silence in the Court, upon pain of Imprisonment.
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The Jury's Names called over.
Cla. Are you agreed upon your Verdict?
Jur. Yes.
Cla. Who shall speak for you?
Jur. Our Fore-man.
Cla. What say you? Look upon the Prisoners at the Bar. Is William Penn
Guilty of the Matter whereof he stands indicted, in Manner and Form as aforesaid, or Not guilty?
Fore-m. William Penn is guilty of Speaking in Gratious-street.
May. To an unlawful Assembly?
Bush. No, my Lord, we give no other Verdict than what we gave last Night; we have no other Verdict to give.
May. You are a factious Fellow, I'll take a Course with you.
Blood. I knew Mr. Bushel would not yield.
Bush.. Sir Tho. I have done according to my Conscience.
May. That Conscience of yours would cut my Throat.
Bush. No, my Lord, it never shall.
May. But I will cut yours so soon as I can.
Rec. He has inspired the Jury; he has the Spirit of Divination, methinks I feel
him. I will have a positive Verdict, or you shall starve for it.
Pen. I desire to ask the Recorder one Question, Do you allow of the Verdict
given of William Mead?
Rec. It cannot be a Verdict, because you were indicted for a Conspiracy, and one being found Not guilty, and not the other, it could not be a Verdict.
Pen. If Not guilty be not a Verdict, then you make of the jury and Magna
Charta but a meer Nose of Wax.5
Mead. How! is Not guilty no Verdict?
Rec. No, tis no Verdict.
Pen. I affirm, that the Consent of a Jury is a Verdict in Law; and if William Mead be Not guilty, it consequently follows, that I am clear, since you have indicted us of a Conspiracy, and I could not possibly conspire alone.
Obser. There were many Passages, that could not be taken, which past between the Jury and the Court. The Jury went up
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again, having received a fresh Charge from the Bench, if possible to extort an unjust Verdict.
Cry. O Yes, &c. --- Silence in the Court.
Cour. Call over the Jury. --- Which was done.
Cla. What say you? Is William Penn Guilty of the Matter whereof he stands indicted, in Manner and Form aforesaid, or Not Guilty?
Fore-man. Guilty of speaking in Gratious-street.
Rec. What is this to the Purpose? I say, I will have a Verdict. And speaking
to E. Bushel, said, You are a factious Fellow; I will set a Mark upon you; and whilst I have anything to do in the City, I will have an eye upon you.
May. Have you no more Wit than to be led by such a pitiful Fellow? I will cut his Nose.
Pen. It is intolerable that my jury should be thus menaced: Is this according
to the Fundamental Laws? Are not they my proper judges by the great Charter of England? What hope is there of ever having justice done, when juries are threatened, and their Verdicts rejected? I am concerned to speak and grieved to see such Arbitrary Proceedings. Did not the Lieutenant of the Tower render one of them worse than a Felon? And do you not plainly seem to condemn such for factious Fellows, who answer not your Ends? Unhappy are those Juries, who are threatened to be fined, and starved, and ruined, if they give not in Verdicts contrary to their Consciences..
Rec. My Lord, you must take a Course with that same Fellow.
May. Stop his Mouth; Jaylor, bring Fetters, and stake him to the Ground.
Pen. Do your Pleasure, I matter not your Fetters.
Rec. Till now I never understood the Reason of the Policy and Prudence of the Spaniards, in suffering the Inquisition among them: And certainly it will never
be well with us, till something like unto the Spanish Inquisition be in England.
Obser. The Jury being required to go together to find another Verdict, and stedfastly refusing it (saying they could give no other Verdict than what was already given) the Recorder in great Passion was running off the Bench,
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with these Words in his Mouth, I protest I will sit here no longer to hear these Things; at which the Mayor calling, Stay, stay, he returned, and directed
himself unto the jury, and spoke as followeth
Rec. Gentlemen, we shall not be at this trade always with you; you will find the next Sessions of Parliament there will be a Law made, that those that will not conform shall not have the Protection of the Law. Mr. Lee, draw up another Verdict, that they may bring it in Special.
Lee. I cannot tell how to do it.
Jur. We ought not to be return'd, having all agreed, and set our Hands to the
Verdict.
Rec. Your Verdict is nothing, you play upon the Court; I say you shall go together, and bring in another Verdict, or you shall starve; and I will have you
carted about the City, as in Edward the third's time.
Fore-m. We have given in our Verdict, and all agreed to it; and if we give in an other, it will be a Force upon us to save our Lives.
May. Take them up.
Offic. My Lord, they will not go up.
Obser. The Mayor spoke to the Sheriff, and he came off of his seat, and said,
Sher. Come, Gentlemen, you must go up; you see I am commanded to make you go.
Obser. Upon which the Jury went up; and several sworn to keep them without any Accommodation, as aforesaid, till they brought in their Verdict.
Cry. O yes, &c. The Court adjourns till to morrow morning, at seven of the
clock.
Obser. The Prisoners were remanded to New-gate, where they remained till next Morning, and then were brought unto the Court, which being sat, they proceeded as followeth.
Cry. O yes, &c. --- Silence in the Court, upon pain of Imprisonment.
Cla. Set William Penn and William Mead to the Bar. Gentlemen of the jury,
answer to your Names: Tho. Veer, Edw. Bushel, John Hammond, Henry Henly, Henry Michell, John Brightman, Charles Milson, Gregory Walklet, John Baily, William Leaver
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James Damask, William Plumstead. Are you all agreed of your Verdict?
Jur. Yes.
Cla. Who shall speak for you?
Jur. Our Fore-man.
Cla. Look upon the Prisoners. What say you? Is William Penn Guilty of the
Matter whereof he stands indicted, in Manner and Form, &c., or Not guilty?
Fore-man. Here is our Verdict in Writing, and our Hands subscribed.
Obser. The clerk had the paper, but was stopt by the Recorder from reading of it; and he commanded to ask for a positive Verdict.
Fore-man. That is our Verdict; we have subscribed to it.
Cla. How say you? Is William Penn Guilty, &c., or Not guilty?
Fore-man. Not guilty.
Cla. How say you? Is William Mead Guilty, &c., or Not guilty?
Fore-m. Not guilty.
Cla. Then hearken to your Verdict; you say that William Penn is Not Guilty
in Manner and Form as he stands indicted; you say that Williain Mead is Not guilty in Manner and Form as he stands indicted, and so you say all?
Jur. Yes, we do so.
Obser. The Bench being unsatisfied with the Verdict, commanded that every
Person should distinctly answer to their Names, and give in their Verdict, which
they unanimously did, in saying, Not Guilty, to the great Satisfaction of the Assembly.
Recorder. I am sorry, Gentlemen, you have followed your own Judgments and Opinions, rather than the good and wholsome Advice, which was given you; God keep my Life out of your Hands; but for this the Court Fines you forty Mark a Man; and Imprisonment till paid. At which Penn stept up towards the Bench, and said
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Pen. I demand my Liberty, being freed by the Jury.
May. No, you are in for your Fines.
Pen. Fines, for what?
May. For contempt of the Court.
Pen. I ask, if it be according to the Fundamental Laws of England, that any
English men should be Fined or Amerced, but by the judgment of his Peers or Jury; since it expresly contradicts the fourteenth and twenty-ninth Chap. of the Great Charter of England, which say, No Free-man ought to be amerced, but by the Oath of good and lawfull men of the Vicinage.
Rec. Take him away, Take him away, take him out of the Court.
Pen. I can never urge the Fundamental Laws of England, but you cry, Take him away, take him away. But tis no wonder, Since the Spanish Inquisition hath so great a place in the Recorder's Heart. God Almighty, who is just, will judge you all for these things.
Obser. They haled the Prisoners into the Bale-dock, and from thence sent them to Newgate, for Non-payment of their Fines; and so were their Jury. [But the Jury were afterwards discharged upon an Habeas Corpus, returnable in the Common Pleas, where their commitment was adjudged illegal. Vaugh. Rep. 135-150. 2 A COMPLETE COLLECTION OF STATE TRIALS 612]
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Additional endnotes:
1. Recorder: Formerly, a certain magistrate or judge having criminal and civil jurisdiction in a city or borough. Now, in England and Wales, a barrister or solicitor appointed as a part-time judge presiding esp. over certain Crown Courts.
The Recorder was originally a person with legal knowledge appointed by the mayor and aldermen to ‘record’ or keep in mind the proceedings of their courts and the customs of the city, his oral statement of these being taken as the highest evidence of fact. The Recorder of London, to whom most of the early evidence refers, is still appointed by the court of aldermen; elsewhere the appointment is made by the crown, the duties of the office being regulated by the Municipal Corporations Act of 5 and 6 William IV and subsequent enactments. OXFORD ENGLISH DICTIONARY, 1989. In the proceedings above, the Recorder's words are signified by the abbreviation Rec.
2. Cla.=The court clerk, or what was then pronounced and spelled "clark."
3. The Observer is William Penn, the author of the pamphlet.
4. Bale-dock, bail-dock - : At the Old Bailey, London, a small room taken from one of the corners of the court, and left open at the top; in which during the trials, are put some of the malefactors. 1670, Penn, Truth Rescued: "I wast put in the Bale-dock for Turbulency and Impertinency". OXFORD ENGLISH DICTIONARY, 1989.
5. A nose of wax, a thing easily turned or moulded in any way desired; a person easily influenced, one of a weak character. 1532 TINDALE Expos. Matt. vi. 23 "If the Scripture be contrary, then make it a nose of wax and wrest it this way and that way till it agree." OXFORD ENGLISH DICTIONARY, 1989.
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