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and the people, the law you ground your indictment upon, I fhall 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 fay it is the common law, unlefs we knew both where, and what it is. For where there is no law, there is no tranfgreffion; and that law which is not in being, is fo 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 fcripta, that which many have ftudied thirty or forty years to know, and would you have me to tell you in a moment?

Pen. Certainly, if the common law be fo hard to be understood, it is far from being very common; but if the Lord Cook, in his Inftitutes, be of any confideration, he tells us, that common law is common right, and that common right is the great charterprivileges Confirmed 9 Hen. III. 29. 25 Edw. I. 1. 2 Edw. III. 8. Cook Inftit. 2. p. 56.

Rec. Sir, you are a troublesome fellow, and it is not for the honour of the Court to fuffer you to go on.

Pen. I have afked but one question, and you have not anfwered me; tho' the rights and privileges of every Englishman be con

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have broken, you do at once deny me an acknowledged right, and evidence to the whole world your refolution to facrifice the privileges of Englishmen to your finifter and arbitrary defigns.

Rec. Take him away. My Lord, if you take not fome courfe with this peftilent fellow, to ftop his mouth, we shall not be a ble to do any thing to night.

Mayor. Take him away, take him away, turn him into the bale-dock.

Pen. These are but fo many vain exclamations: Is this juftice or true judgment? Muft I therefore be taken away because I plead for the fundamental laws of England? However, this I leave upon your confciences, who are of the jury (and my fole judges) that if these ancient fundamental laws, which relate to liberty and property, and (are not limited to particular perfuafions in matters of religion) must not be not be indifpenfibly maintained and obferved, who can fay he hath right to the coat upon his back? Certainly our liberties are openly to be invaded, our wives to be ravifhed, our children flaved, 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 confcience fake. The Lord of Heaven and Earth will be. Judge between us in this matter.

Rec. Be filent there.

Pen. I am not to be filent in a cafe wherein I am so much concerned, and not only myself, but many ten thousand families befides.

Obfer. 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 ftand, to answer to an indictment against me, which is a bundle of stuff, full of lies and falfehoods; for therein I am accufed, that I met Vi & armis, illicite et tumultuofe: Time was, when I had freeKkkk

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Mead. The Lord is Judge between me and thee in this matter.

Obfer. Upon which they took him away into the Bale-dock, and the Recorder proceeded to give the Jury their charge, as followeth.

dom to use a carnal weapon, end 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 perfon: I fay, I am a peaceable man, therefore it is a very proper queftion what William Penn demanded in this cafe, an Oyer of the law, on which our indictment is grounded. Rec. I have made anfwer to that already. Mead. Turning his face to the Jury, faith, 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 affembly, Cook, he that once they called the Lord Cook, tells us what makes a riot, a rout, and an unlawful affembly.-A riot is when three, or more, are met together to beat a man, or to enter forcibly into another's man's land, to cut down his grafs, his wood, or break down his pales.

Obfer. Here the Recorder interrupted him, and faid, I thank you Sir, that you will tell me what the law is, fcornfully pulling off his hat.

Mead. Thou mayft put on thy hat, I have never a fee for thee now.

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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 fhould not be disturbed, you fee they will go on; there are three or four witneffes that have proved this, that he did. preach there; that Mr. Mead did allow of it after this, you have heard by substantial witneffes what is faid against them: Now we are upon the matter of fact, which you are to keep to, and obferve, as what hath been fully fworn, at your peril..

Obfer. The prifoners were put out of the court into the bale-dock, and the charge given to the Jury in their abfence, at which W. P. with a very raised voice, it being a. confiderable diftance from the Bench,. fpake.

Pen. I appeal to the Jury, who are my. Judges, and this great Affembly, whether the proceedings of the Court are not moft: arbitrary, and void of all law, in offering to give the Jury their charge in the abfence of the prifoners; I fay, it is directly oppo-. fite to, and deftructive of, the undoubted. right of every English prifoner, as Cook in the 2 Inftit. 29. on the chap. of Magna Charta fpeaks.

Obfer. The Recorder being thus unexpectedly lafhed for for his extra-judicial procedure, faid, with an enraged fmile.

Rec. Why, ye are prefent, you do hear,. do you not?

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Pen. No thanks to the court, that com-manded 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,

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offer, in order to invalid their indictment. guage, and behaved themfelves very impeRec. Pull that fellow down, pull him rioufly to the jury, as perfons not more down. void of justice than fober education; after this barbarous ufage, they fent them to confider of bringing in their verdict, and after fome confiderable time they returned to the court. Silence was called for, and the jury called by their names.

Mead. Are thefe according to the rights and privileges of Englishmen, that we fhould 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 unjuft proceedings.

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) yourselves would be tired out, and not have patience to hear them..

Obfer. The jury were commanded up to agree upon their verdict, the prifoners remaining in the ftinking hole. After an hour and half's time eight came down agreed, but four remained above; the court fent an officer for them, and they accordingly came down. The bench used many unworthy threats to the four that diffented; and the Recorder, addrefling himfelf to Bufhell, faid, "Sir, you are the caufe of this disturbance, and manifeftly fhew yourself an abettor of faction; I fhall fet a mark upon you, Sir."

Cler, Are you agreed upon your verdi&? -
Jury. Yes.

Cler. Who fhall speak for you?
Jury. Our fore-man.

Cler. Look upon the prifoner at the bar; How fay you? Is William Penn guilty of the matter whereof he ftands indicted in manner and form, or Not guilty?

Fore-m. Guilty of fpeaking in Gracechurch-street.

Court. Is that all ?

Fore-m. That is all I have in commif

fion.

Rec. You had as good fay nothing. May. Was it not an unlawful affembly? you mean he was speaking to a tumult of people there?

Fore-m. My Lord, this is all I had in commiffion.

Obfer. Here fome of the jury feemed to buckle to the queftions of the court; upon 7. Robinson. Mr. Bufhel, I have known which, Bushel, Hammond, and fome others, you near this fourteen years; you have oppofed themselves, and faid, they allowed thrust yourself 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..

Bufhel. No, Sir John, there were threefcore before me, and I would willingly have got off, but could not.

Bloodw. I faid, when I faw Mr. Bufhel, what I fee is come to pafs, 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.

Obfer. They used much menacing lan

of no fuch word, as an unlawful affembly in their verdict; at which the Recorder, Mayor, Robinson and Bloodworth took. great occafion to villify them with moft opprobrious language; and this verdict not. ferving their turns, the recorder exprefs'd himfelf thus:

Rec. The law of England will not allow. you to part till you have given in your ver dict.

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 no-thing; therefore go and confider it once.

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more, that we may make an end of this troublefome bufinefs.

Jury. We defire we may have pen, ink, and paper.

Obfer. The court adjourn'd for half an hour, which being expired, the court,returns, and the jury not long after.

The prifoners were brought to the bar, and the jury's names called over.

Cler. Are you agreed of your verdict?
Jur. Yes.

Cler. Who fhall speak for you ?
Jur. Our fore-man.

Rec. Gentlemen, you fhall not be dif miffed till we have a verdict, that the court will accept; and you fhall be locked up, without meat, drink, fire, and tobacco; you fhall not think thus to abuse the court; we will have a verdict, by the help of God, or you fhall ftarve for it,

Pen. My jury, who are my judges, ought not to be thus menaced; their verdict fhould be free, and not compelled; the bench ought to wait upon them, but not foreftall them. I do defire that juftice may be done me, and that the arbitrary resolves of the bench may not be made the measure of my

Cler. What fay you, look upon the priToners Is William Pen Guilty in manner jury's verdict. and form, as he ftands indicted, or Not guilty?

Fore-m. Here is our verdict, holding forth a piece of paper to the clerk of the peace, which follows:

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.

"WE the jurors, hereafter, named, do Pen. It is a great mistake; we did not find William Pen to be guilty of fpeaking make the tumult, but they that interrupted or preaching to an affembly, met together us: The jury cannot be fo ignorant, as to in Gracechurch-ftreet, the 14th of Auguft think, that we met there, with a defign to last 1670. And that William Mead is Not difturb the civil peace, fince (ft.) we were by guilty of the faid indictment."

Fore-m. Thomas Veer, Charles Milfon,
Edward Bufhel, Greg. Walklet,
John Hammond, John Baily,
Henry Henley, William Lever,
Henry Michel, James Damafk,
J. Brightman, Wil. Plumfted.

Obfer. This both Mayor and Recorder refented at fo high a rate, that they exceeded the bounds of all reafon and civility.

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force of arms kept out of our lawful house, and met as near it in the street, as their foldiers would give us leave; and (2dly,) because it was no new thing (nor with the circumstances exprefs'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.

Obfer. The court being ready to break up, and willing to huddle the prifoners to their goal, and the jury to their chamber, Penn spoke as follows.

May. What, will you be led by such filly fellow as Bufhel? an impudent cant- Pen. The agreement of twelve men is a ing fellow? I warrant you, you fhall come verdict in law, and fuch a one being given No more upon juries in hafte; you are a by the jury, I require the clerk of the peace foreman indeed, addreffing himself to the to record it, as he will anfwer it at his peforeman, I thought you had understood ril. And if the jury bring in another veryour place better.

dict contradictory to this, I affirm they are perjur'd men in law: And looking upon

the

May. You are a factious fellow, I'll take a courfe with you.

the jury, faid, you are Englishmen, mind
your privilege, give not away your right.
Bush, &c. Nor will we ever do it.
Obfer. One of the jury-men pleaded in-
difpofition of body, and therefore defired
to be difmiffed.

May. You are as strong as any of them, ftarve them, and hold your principles.

Rec. Gentlemen, you must be contented with your hard fate, let your patience overcome it for the court is refolved to have a verdict, and that before you can be difmift. Jury. We are agreed, we are agreed, we are agreed.

Blood. I knew Mr. Bufhel would not

yield.

Bush. Sir Thomas, I have done according to my confcience.

May. That confcience of yours would cut my throat.

Bufh. No, my Lord, it never fhall. May But I will cut yours fo foon as I can.

Rec. He has infpired the jury; he has the fpirit of divination, methinks I feel him; I will have a pofitive verdict, or you fhall ftarve for it.

Obfer. The court fwore feveral perfons, to keep the jury all night without meat, Pen I defire to afk the Recorder one drink, fire, or any other accomodation; queftion, Do you allow of the verdict given they had not fo much as a chamber-pot, of William Mead ?

tho' defired.

Cry. O yes, &c.

Rec. It cannot be a verdict, because you were indicted for a confpiracy, and one beObfer. The court adjourns till feven of ing found not guilty, and not the other, it the clock next morning, (being the fourth could not be a verdict.

inftant, vulgarly called Sunday) at which Pen. If Not guilty be not a verdict, then time the prifoners were brought to the bar: you make of the jury and Magna Charta The court fat, and the jury cailed to bring

in their verdict.

Cry. O Yes, &c.-Silence in the court upon pain of imprisonment.

The jury's names called over. Cler. Are you agreed upon your verdia?

Jur. Yes.

Cler. Who fhall speak for you?
Jur. Our Fore-man.

Cler. What fay you? Look upon the prifoners at the bar: Is William Penn guilty of the matter whereof he stands indicted, in manner and form as aforefaid, or not guilty?

Fore-m. William Penn is guilty of speaking in Gracechurch-street.

May. "To an unlawful affembly? Bufh. No, my Lord, we give no other verdict than what we gave last night; we have no other verdict to give. VOL. 1. No. 14.

but a meer nofe of wax.

Mead. How! Is not guilty no verdict?
Rec. No, 'tis no verdict.

Pen. I affirm, that the confent of a jury is a verdict in law; and if William Mead be not guilty, it confequently follows, that I am clear, fince you have indicted us of a confpiracy, and I could not poffibly confpire alone.

Obfer. There were many paffages, that could not be taken, which paffed between the jury and the court. The jury went up again, having received a fresh charge from the bench, if poffible to extort an unjust

verdict.

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