Chapter 2

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 _Cook_, 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. i. 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 _Englishman_ be concerned in it.

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.

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 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 my self 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 Assembly, _Cook_, he that once they called the Lord _Cook_, 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 Free 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 culpa redarguit ad 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.

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 _Cook_ 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.

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.

CLER. Are you agreed upon your Verdict?

JURY. Yes.

CLER. Who shall speak for you?

JURY. Our Fore-man.

CLER. 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?

FORE-M. Guilty of Speaking in Gracechurch-Street.

COURT. Is that all?

FORE-M. That is all I have in Commission.

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 Commission.

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.

REG. 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.

CLER. Are you agreed of your Verdict?

JUR. Yes.

CLER. Who shall speak for you?

JUR. Our Fore-man.

CLER. 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 Clerk of the Peace, which follows;

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, Edward Bushel, John Hammond, Henry Henley, Henry Michel, John Brightman, Charles Milson, Gregory Walklet, John Baily, William Lever, James Damask, 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 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 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, as to think, that we met there, with a Design to disturb the Civil Peace, since (1st.) 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 Clerk of the Peace to record it, as he will answer it at his Peril. And if the Jury bring in another Verdict contradictory to this, I affirm they are perjur'd Men in Law. And looking upon the Jury, said, You are _Englishmen_, 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 Chamberpot, 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 sat, and the Jury called 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 Verdict?

JUR. Yes.

CLER. Who shall speak for you?

JUR. Our Fore-man.

CLER. 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 _Gracechurch-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 _Thomas_ 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.

REG. 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.

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 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.

CLER. 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 _Gracechurch-Street._

REC. What is this to the Purpose? I say, I will have a Verdict. And speaking to _Edw. 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 steadfastly refusing it (saying they could give no other Verdict than what was already given) the Recorder in great Passion was running off the Bench, 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 charted 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 another, 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 Newgate, 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.

CLER. 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 Plumstead._ Are you all agreed to your verdict?

JUR. Yes.

CLER. Who shall speak for you?

JUR. Our Fore-man.

CLER. 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 took 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.

CLER. How say you? Is William Penn Guilty, &c., or Not Guilty?

FORE-MAN. Not guilty.

CLER. How say you? Is William Mead Guilty, &c., or Not Guilty?

FORE-MAN. Not guilty.

CLER. Then hearken to your Verdict; you say that William Penn is Not Guilty in Manner and Form as he stands indicted; you say that _William 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.

REC. 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:

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-Man should be Fined or Amerced, but by the Judgment of his Peers or Jury; since it expressly 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 Lawful 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 it is 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.

L'ENVOIE

So ended the "Tryal." The contumacious jurors did not long remain in duress. The pertinacious Bushel, being a man of substance, took steps to legally rescue himself and fellows, and soon succeeded. The affair had an important after echo at the trial in New York, of John Peter Zenger, the Palatine Printer, in 1735, for libelling Governor William Cosby, by telling the truth about his infringement of popular liberty, when the attempted forcing of the Penn jury was powerfully employed by Andrew Hamilton, attorney for the defense, to curb the efforts of Mr. Justice De Lancey to coerce the twelve. In his remarkable address--an address that solidified the foundation for liberty of the press and free speech on this continent and was a worthy preface to the Declaration of Independence drawn some forty years later--Hamilton said, concerning this "Tryal":