Court what law is? It is lex non scripta. That which many have studied thirty or forty years to know, would you have me tell you in a moment?"

PENN. "Certainly, if the common law be so hard to be understood, it is far from being very common; but if the Lord Coke in his Institutes be of any weight, he tells us that 'common law is common right,' and common right is the great charter privileges confirmed by various enactments."

REC.-"Sir, you are a very troublesome fellow, and it is not for the honor of the Court to allow you to go on.

My Lord, if you do not take some course with this persistent fellow to stop his mouth, we shall not be able to do anything to-night."

LORD MAYOR.-"Take him away! Take him away! Put him into the bale-dock!" And in the midst of a vigorous appeal to the jury, he was forcibly removed to the extreme end of the court, where he could neither see nor be seen.

The Recorder then proceeded: "You, gentlemen of the jury, 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 shall not be disturbed, you see they will go on. There are three or four witnesses have proved this-that Mr. Penn 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 on matter of fact, which you are to keep and to observe, as what hath been fully sworn, at your peril."

Here Penn from the bale-dock interrupted, in his loudest tones: "I appeal to the jury who are my judges, and to 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 opposed and destructive to the right of every English prisoner, as declared by Coke in the 2nd Institute, 29, in the chapter on Magna Charter."

REC. (with an affectation of humor)-"Why you are present. You do hear, do you not?"

PENN. "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 invalidate the indictment."

REC.(furiously)—"Pull that fellow down! Pull him down! Take him to the hole. To hear him talk doth not become the honor of the Court."

After the prisoners had been "haled away" to the squalidest of all the squalid dens in England, the "hole" in Newgate, the Recorder commanded the jury to agree in their verdict according to the facts sworn. They retired for consideration; but instead of returning immediately, as the judges anticipated, tarried thirty minutes-sixty minutes-an hour and a half! Then entered eight of the jurors, saying that they could not agree. The Recorder demanded the other four, and immediately poured out upon them a flood of vituperation.

The jury withdrew a second time; and after two hours absence, returned with a verdict of "Guilty of speaking in Grace Church Street.”

An attempt was made to coerce or cajole them into altering it to "unlawful speaking;" but they manfully refused. "We have given in our verdict; we can give no other." They were sent back a third time; whereupon they sent in a verdict, "Guilty of speaking to an assembly met together in Grace Church Street."

In a storm of passion, the Lord Mayor pronounced their foreman, "an impudent, canting knave." The Recorder exclaimed:

"You shall not be dismissed till you bring in a verdict which the Court will accept. You shall be locked up, without meat, drink, fire or 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!"

PENN.-"The jury, who are my judges, ought not to be thus menaced. Their verdict should be free-not forced."

REC.-"Stop that fellow's mouth, or put him out of the Court."

LORD MAYOR (addressing the jury)-"You have heard that

he preached; that he gathered a company of tumultuous people; and that they not only disobey the martial power, but the civil also."

PENN. "That is a mistake. We did not make the tumult; but they that interrupted us. The jury cannot be so ignorant as to think we met there to disturb the peace, because it is well known that we are a peaceable people, never offering violence to any man, and were kept by force of arms out of our own house. You are Englishmen," he said to the jurors, "mind your privileges; give not away your rights."

The jury were then locked up, and the prisoners carried back to Newgate. The next morning (Sunday), the Court was again crowded, and with anxiety chequered by hope, the public awaited the re-appearance of the jurors. At seven o'clock their names were called over, and the Clerk once more inquired if they had agreed upon a verdict. They replied in the affirmative. "Guilty or not guilty?" "Guilty of speaking in Grace Church Street."

LORD MAYOR.-"To an unlawful assembly?"

BUSHEL."No, my Lord; we give no other verdict than we gave last night."

LORD MAYOR.-"You are a factious fellow; I'll take a course with you."

BUSHEL.-"I have done according to my conscience."

LORD MAYOR.--"That conscience of yours would cut my throat."

BUSHEL. "No, my Lord, it never shall."

LORD MAYOR.-"But I will cut yours as soon as I can."

REC. (jestingly)-"He has inspired the jury; he has the spirit of divination; methinks he begins to affect me! I will have a positive verdict, or else you shall starve."

PENN. "I desire to ask the Recorder a question. Do you allow the verdict given, of William Mead?"

REC.-"It cannot be a verdict, because you are indicted for conspiracy; and one being found 'Not Guilty,' and not the other, it is no verdict."

PENN. "If Not Guilty' be no verdict, then you make of the jury and of the Great Charta a mere nose of wax.”

MEAD. "How? Is Not Guilty' not a verdict?"

REC.-"It is no verdict."

PENN. "I affirm that the consent of a jury is a verdict in law; and if William Mead be not guilty, it follows that I am clear, since you have indicted us for conspiracy, and I could not possibly conspire alone."

Once more the unfortunate jurors were compelled to retireonly to persist in the verdict already given. The Recorder, carried by his wrath beyond the bounds of decency, exclaimed, "Your verdict is nothing. You play upon the Court. I say you shall go 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."

FOREMAN. "We have given in our verdict, in which we are all agreed; if we give in another, it will be by force, to save our lives."

LORD MAYOR.-"Take them up to their room."

OFFICER. "My Lord, they will not go."

The jurors were constrained to withdraw-actual violence being used—and locked up without food and water. Exposed to this harsh treatment, some weaker minds wavered, and would have given way but for the courageous resolution of Bushel, and others like Bushel, who understood the importance of the question at isue. So when, on Monday morning, the Court once more summoned the jurors, there was not, though they had fasted two days and nights, a traitor or coward among them. Wan and worn were they, with hunger, fatigue, and a not unnatural anxiety; but determined to do justice to their fellow-men, arraigned, as they knew, on a false charge.

66

CLERK. Gentlemen, are you agreed upon your verdict?" JURY. "Yes."

CLERK. "Who shall speak for you?"

JURY.-"Our foreman."

CLERK. Look upon the prisoners, what say you; is William Penn guilty of the matter whereof he stands indicted in manner and form or not guilty?"

FOREMAN. "You have your verdict in writing."
CLERK.-"I will read it."

REC.-"No, it is no verdict. The Court will not accept it." FOREMAN.-"If you will not accept of it, I desire to have it back again."

THE COURT.-"The paper was no verdict, and no advantage shall be taken of you for it."

CLERK.-"How say you; is William Penn guilty or not guilty?"

FOREMAN (resolutely).-"Not guilty."

REC.-"I am sorry, gentlemen, you have followed your own judgments and opinions rather than the good advice which was given you. God keep my life out of your hands. But for this the Court fines you forty marks a man, and imprisonment in Newgate till the fines are paid."

PENN. "Being freed by the jury, I demand to be set at liberty."

LORD MAYOR.-"No, you are in for your fines."
PENN.-"Fines! What fines?"

LORD MAYOR.-"For contempt of court."

PENN.-"I ask if it be according to the fundamental laws of England that any Englishman should be fined except by the judgment of his peers? since it expressly contradicts the 14th and 29th chapters of the Great Charter of England, which says, 'No free man ought to be amerced except by the oath of good and lawful men of the vicinage."

REC.-"Take him away; put him out of the court."

PENN.-"I can never urge the fundamental laws of England, but you cry out, 'Take him away! Take him away!' But this is no wonder; since the Spanish Inquisition sits so near the Recorder's heart. God, who is just, will judge you all for these things."

The prisoners and the jurors refusing to pay the fines so arbitrarily inflicted upon them, were removed to Newgate. The latter, at Penn's instigation, immediately brought an action against the Lord Mayor and the Recorder for having imprisoned them in defiance of law and justice. It was argued on the 9th of November, before the twelve judges, who unanimously decided in favor of the appellants.

They were immediately released, and Penn went forth tri