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upon, I shall take it for granted, your proceedings are merely arbitrary. Recorder. The question isWhether you are guilty of this indictment 2 Penn. 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 : Recorder. You are an impertinent fellow; will you teach the court what law is : It is Leac mom scripta, that which many have studied thirty or forty years to know, and would you have me to tell you in a moment 2 Penn. Certainly, if the common law be so hard to be understood, it is far from being 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 of privileges confirmed 9 Henry 3, 29, 25. Edward I; 1 and 2; Edward III, 8. Coke Instit. 2 p. 56. 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 the law, which you say 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. Recorder. 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. Lord Mayor. Take him away, take him away; turn him into the Baile Dock. Penn. 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 religion, must not be indispensably maintained and observed, who can say he hath a right to the coat upno his back 2 Recorder. Be silent there. Penn. I am not to be silent in a case wherein I am so much concerned, and not only myself, but many ten thousand families besides. They now dragged him into the Baile Dock; but William Mead, being still left in court, spoke as follows: “You men of the jury, here I do now stand to answer to an indictment against me, which is a bundle of stuff, full of lies and falsehoods: for therein am I accused, that I met vi et armis, illicite et 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. 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 assembly, Cook [Coke] he that once they called the lord Cook [Coke] tells us, that 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. Recorder. I thank you, sir, that you will tell me what the law is.[Scornfully pulling off his hat..] Mead. Thou mayest put on thy hat, I have never a fee for thee now. .Alderman Brown. He talks at random; one while an independent, another while some other religion; and now a quaker, and next a pap1st. Mead. Turpe est doctori cum culpa redarguit ad ipsum.
Lord Mayor. You deserve to have your tongue cut out. Recorder. If you discourse in this manner, I shall take occasion against you. Mr. Mead having been now also thrust into the Baile Dock, the following charge was given to the jury, in the absence of the prisoners: Recorder. 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, and 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, what has been fully sworn, .
at your peril. Penn. [With a loud voice, from the Baile Dock] 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 Cook, in the 2d Inst. 29, on the chap. of Magna Charta speaks. Recorder. Why ye are present; you do hear, do you not : Penn. No thanks to the court that commanded me into the Baile 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 aff ointment. Recorder. Pull the fellow down; pull him down. Mead. Are these proceedings according to the rights and privileges
of Englishmen, that we should not be heard : Recorder. Take them away into the hole. The jury were now desired to go up stairs, in order to agree upon a verdict; and the prisoners remained in the “stinking hole.” After an hour and a half’s time, eight came. down agreed, but four remained above, until sent for. The bench used many threats to the four that dissented; and the recorder, addressing himself to Mr. Bushel, said: “Sir, you are the cause of this disturbance, and manifestly show.yourself an abettor of faction. I shall set a mark upon you, sir.” 4lderman sir J. Robinson, lieutenant of the tower Mr. Bushel, I have known you near this fourteen years; you have thrust yourself upon this jury, because you think there is some service for you; I tell you, that you deserve to be indicted more than any man that hath been brought to the bar this day. Mr. Bushel. No, sir John, there were three score before me; and I would willingly have got off, but could not. 4lderman Bludworth. Mr. Bushel, we know what you are. Lord Mayor. Sirrah, you are an impudent fellow; I will put a mark upon you ! The jury being then sent back to consider their verdict, remained for some time; and, on their return, the clerk having asked in the usual manner: “Is William Penn guilty of the matter wherein he stands indicted, or not guilty?” the foreman replicd, “Guilty of speaking in Gracious street.
Court. Is that all 2
Foreman. That is all I have in commission.
Recorder. You had as good say nothing.
Lord Mayor. Was it not an unlawful assembly You mean he was speaking to a tumult of people there: Foreman. My lord, this was all I had in commission. Here some of the jury seeming “ to buckle to the questions of the court,” Mr. Bushel, Mr. Hammond, and some others, opposed themselves, and said, “they allowed of no such terms as an unlawful assembly:” at which the lord mayor, the recorder, sir J. Robinson, lieutenant of the tower, and alderman Bludworth “took great occasion to vilifie them with most opprobrious language;” and this verdict not serving their turn, the recorder expressed himself thus: “ The law of England will not allow you to part till you have given in your verdict, therefore go and consider it once more.” On this the jury declared, that they had given in their verdict, and could give in no other. They withdrew, however, after demanding and obtaining pen, ink, and paper; and returning once more, at the expiration of half an hour, the foreman addressed himself to the clerk of the peace, and, presenting the following decision, said, here is our verdict: “We the jurors, hereafter named, do find William Penn to be guilty of speaking or preaching to an assembly met together in Gracious street, the 14th of August last, 167C; and that William Mead is not guilty of the said indictment. Foreman. Thomas Veer. Edward Bushel,” &c. Lord Mayor. What will you be led 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 foreman, indeed . I thought you had understood your place better. o Recorder. Gentlemen, you shall not be dismissed till we have a verdict that the court will accept, and you shall be locked 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
“You are Englishmen I
Penn. 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 [for] them, but not forestal 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. Recorder. Stop that prating fellow, or put him out of the court. Lord Mayor. You have heard that he preached, that he gathered a company of tumultuous people, and that they not only did disobey the martial power, but the civil also. Penn. It is a great mistake; we did not make the tumult, but they that interrupted us! The jury cannot be so ignorant as to think that we met there with a design to dis
turb the civil peace, since, first, 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 secondly, because it was no new thing, and it is known that we are a peaceable people, and cannot offer violence to any man. The agreement of twelve men is a verdict in law; and such a one being given by the jury, I require the clerk of the peace to record it, as he will answer at his peril. And if the jury bring in another verdict, contradictory to this, I affirm they are perjured men in law. Then looking towards them, he emphatically added, mind your priviiege, give not away your right!”
One of the jury having pleaded
indisposition, and desired to be dis
missed, the lord mayor said, “You are as strong as any of them; starve then, and hold your principles.” Recorder. 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 dismissed. Jury. We are agreed The court now swore several of its officers to keep the jury all night, without meat, drink, fire, &c. and adjourned to seven o’clock next morning, which proved to be Sunday. They were then brought up as before, when, having persevered in their verdict, Mr. Bushel was reproved as a factious fellow, by the lord mayor; on this he replied, that he acted “ conscientiously.” The other observed, that such a conscience would cut his throat; “but I will cut your's,” added he, “so soon as I can.” Mr. Penn now asked the recorder, if he allowed the verdict given in respect to William Mead? That magistrate replied, no; as they were both indicted for a conspiracy, and one being found “not guilty,” and not the other, it could not be a verdict. Penn. If not guilty be not a verdiet, then you make of the jury, and Magna Charta, but a mere nose of avar / I affirm, that the consent of a jury is a verdict in law; and if William Mead be not guilty, I am clear, as I could not possibly conspire alone. The jury again received a charge; were sent out; returned, and presented the same verdict. On this, the recorder threatened Mr. Bushel, and said, “while he had any thing to do in the city, he would have an eye upon him l’” The lord mayor termed him a pitiful fellow, and added, “I will cut his nose.” Penn. 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 grievous to see such arbitrary proceedings. Did not the lieutenant of the tower render [treat] one of them (the jury) worse than a felon 3 And do you not plainly seem to condemn such for factious fellows, who answer not your ends? Unhappy are those ju
ries who are threatened to be fined, and starved, and ruined, if they give not in verdicts contrary to their consciences. Recorder. My lord, you must take a course with that same fellow. Lord Mayor. Stop his mouth, jailor, bring fetters, and stake him to the ground. Penn. Do your pleasure; I matter not your fetters! Recorder. 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. The jury were once more required to give another verdict; Mr. Lee, the clerk, was also desired to draw up a special one, which he declined; and the recorder threatened to have the jurors carted about the city, as in Edward III.'s time. The foreman remonstrated in vain, that any other verdict would be a force on them to save their lives; and the jury refused to go out of court until obliged by the sheriff. On this, the court immediately adjourned until next morning at seven o'clock, when the prisoners were, as usual, brought from Newgate, and, being placed at the bar, the clerk demanded, Is William Penn guilty, or not guilty? Foreman. Not guilty! Is William Meade guilty, or not guilty? Foreman. Not guilty: The bench being still dissatisfied, each of the jury was required to answer distinctly to his name, which being done, and they proving unanimous, the recorder spoke as follows: I am sorry, gentlemen, you have followed your own judgments and opinions rather than the good and wholesome advice that was given you. God keep my life out of your hands! But for this the court fines you forty marks aman, and scommands] imprisonment until paid.
William Penn. I demand my liberty; being freed by the jury. Lord Mayor. No, you are in for your fines, for contempt of the court. Penn. I ask if it be according to the fundamental laws of England, that any Englishman should be fined, or amerced, but by the judgment of his peers, or jury? since it expressly contradicts the 14th and 29th chapter of the great charter of England, which says, “No freeman ought to be amerced, but by the oath of good and lawful men of the vicinage.” Recorder. Take him away, take him away; take him out of court. Penn. I can never urge the fundamental laws of England, but you cry, take him away, take him away! But it is now order, 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. So far this curious tract. Both jury and prisoners were now forced into the Baile-Dock, for non payment of their fines, whence they were carried to Newgate. These proceedings, of course, aroused the attention of a nation, justly jealous of the government of such a profligate and arbitrary prince as Charles II. and indignant at the conduct of such a judge as Howel. Sir Thomas Smith, about a century before, had considered the fining, imprisoning, and punishing of juries, to be violent, tyrannical, and contrary to the custom of the realm of England. While the celebrated sir Matthew Hale, who had been chief baron of the exchequer, and chief justice of the king's bench, in this very reign, ol,scrved, in his Pleas of the Crown, p. 313, that it would be a most unhappy case for the judge himsclf, if the prisoner’s fate depend
ed upon his directions, and unhappy also for the prisoner; as, if the judge's opinion must rule the verdict, the trial by jury would be useless. Edward Bushel, a citizen of London, whose name deserves to be handed down to posterity with applause, immediately sued out a writ of habeas corsius. Upon the return, it was stated, that he had been committed “ for that, contrary to law, and against full and clear evidence openly given in court, and against the direction of the court in matter of law, he, as one of a jury, had acquitted William Penn and William Meade, to the great obstruction of justice.” This cause was at length heard in the superiour court; and, after a solemn argument before the twelve judges, the above was resolved to be “ an insufficient cause for fining and committing the jury.” They were accordingly discharged, and they brought actions for damages. Eleven years after this, William Penn bent the whole force of his capacious mind to a great and noble undertaking. Having, in 1681, obtained from the crown the grant of a large tract of land in America, since named Pennsylvania, after himself, as a compensation for the arrears due to him as executor to his father, he took over with him a colony of quakers, and founded Philadelphia, or the City of Brethren, in allusion to their union and fraternal affection. After thus establishing the beginnings of a future empire, and propounding a body of laws, this truly great man, who reflects so much lustre on the name of Englishman, returned to his native country, and died near Beaconsfield, in Berkshire, of an apoplexy, in 1718, at the age of seventy four.