The Tryal of William Penn and William Mead
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Various >> The Tryal of William Penn and William Mead
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":
"Mr. _Penn_ and _Mead_ being Quakers, and having met in a peaceable Manner,
after being shut out of their Meeting House, preached in Grace Church
Street, in London, to the People of their own Perswasion, and for this
they were indicted; and it was said, _That they with other Persons, to the
Number of 300. unlawfully and tumultuously assembled, to the Disturbance
of the Peace, &c_. To which they pleaded _Not Guilty_. And the Petit Jury
being sworn to try the Issue between the King and the Prisoners, that
is, whether they were Guilty, according to the Form of the Indictment?
Here there was no Dispute but they were assembled together, to the Number
mentioned in the Indictment; But _Whether that Meeting together was
riotously, tumultuously, and to the Disturbance of the Peace_? was the
Question. And the Court told the Jury it was, and ordered the Jury to find
it so; _For_ (said the Court) _the Meeting was the Matter of Fact, and
that is confessed, and we tell you it is unlawful, for it is against the
Statute; and the Meeting being unlawful, it follows of Course that it was
tumultuous, and to the Disturbance of the Peace_. But the Jury did not
think fit to take the Court's Word for it, for they could neither find
_Riot, Tumult_, or any Thing tending to the _Breach of the Peace_ committed
at that Meeting; and they acquitted Mr. _Penn_ and _Mead_. In doing of
which they took upon them to judge both the _Law_ and the _Fact_, at which
the Court (being themselves true Cortiers) were so much offended, that
they fined the Jury 40 Marks a piece, and committed them till paid. But Mr.
_Bushel_, who valued the Right of a Juryman and the Liberty of his Country
more than his own, refused to pay the Fine, and was resolved (tho' at
a great Expence and trouble too) to bring, and did bring, his _Habeas
Corpus_, to be relieved from his Fine and Imprisonment, and he was released
accordingly; and this being the Judgment in his Case, it is established for
Law, _That the Judges, how great soever they be, have no Right to Fine,
imprison, or punish a Jury, for not finding a Verdict according to the
Direction of the Court_. And this I hope is sufficient to prove, That
Jurymen are to see with their own Eyes, to hear with their own Ears, and to
make use of their own Consciences and the Understandings, in judging of the
Lives, Liberties or Estates of their Fellow Subjects."