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BY WAY OP
DEFENCE FOR THE PRISONERS;
What might have been offered against the Indictment, and
illegal Proceedings of the Court thereon, had they not violently over-ruled and stopped them.
Published in the Year 1670.
Upon a sober disquisition into several parts of the indictment, we find it so wretchedly defective, as if it were nothing else but a mere composition of error, rather calculated to the malicious designs of the judges, than to the least verity of fact committed by the prisoners.
To prove this, what we say will be a main help to discover the arbitrary proceedings of the bench, in their frequent menaces to the jury: as if it were not so much their business to try, as to condemn the prisoners; and that not so much for any fact they had committed, as what the court would have suggested to the jury to have been their fact.
Sect. 1. It is the constant common law of England, • That no man should be taken, imprisoned, amerced, disseised of his freehold, of his liberties, or free customs, but by the judgment of his peers, which are vulgarly called a jury, from jurare, because they are sworn to do right.'
Sect. 2. The only assistance that is given the jury, in order to a verdict, is :
First, the evidence given of the fact committed by the person indicted.-Secondly, the knowledge of that law, act, or statute, the indictment is grounded upon, and which the prisoners are said to have transgressed.
Sect. 3. We shall neglect to mention here how much they were deprived of that just advantage, which the ancient, equal laws of England do allow; designing it for a conclusion of the whole, and shall only speak here to matter of fact and law.
Sect. 4. The evidence you have read in the trial; the utmost import of which is no more than this,'that William Penn was speaking in Grácious-street, to an assembly of people, but they knew not what he said.' Which is so great a contradiction, as he that runs may read it; for no man can say another man preaches, and yet understand not what he saith. He may conjecture it, but that is a lame evidence in law. It might as well have been sworn, that he was speaking of law, physic, trade, or any other matter of civil government. Besides, there is no law against preaching what is truth, whether it be in the street, or in any other place. Nor is it possible that any man can truly swear, that he preached sedition, heresy, &c. unless he so heard him, that he could tell what he said.
Sect. 5. The evidence farther saith, that W. Mead was there. But till being in Gracious-street be a fault, and hearing a man speak the witness knows not what, be contrary to law,' the whole evidence is useless, and impertinent. But what they want of that, they endeavour to supply with indictment; whose parts we proceed to consider.
Exceptions against the Indictment. Sect. 6. It saith, that the prisoners ['were met upon the 15th day of August, 1670.'] Whereas their own evidence affirms it to be upon the 14th day of August, 1670.
Sect. 7. [“That they met with force and arms.'] Which is so great a lie, that the court had no better cover for it, than to tell the jury it was only a piece of form; urging, that the man tried for clipping of money this present sessions, had the same words used in his indictment.
But that this answer is too scanty, as well as it was too weak to prevail with the jury, we desire it may be considered, that the same words may be used more of course, and out of form, at one time, than at another. And though we grant they can have little force with any jury in a clipper's case, for mere clipping; yet they are words that give so just a ground of jealousy, nay, that carry so clear an evidence of illegality, where they are truly proved and affirmed of any meeting, as that they are the proper roots from whence do spring those branches which render an indictment terrible, and an assembly truly the terror of the people.
Sect. 8. [· Unlawful, and tumultuously to disturb the peace.'] Which is as true as what is said before (that is, as false.) This will evidently appear to all that consider how lawful it is to assemble, with no other design than to worship God. And their calling a lawful assembly an unlawful one, no more makes it so, than to say light is darkness, black is white, concludes so impudent a falsity true.
In short, because to worship God can never be a crime, no meeting, or assembly, designing to worship God, can be unlawful. Such as go about to prove an unlawful assembly, must prove these assemblers' intent not to worship God: but that no man can do, because no man can know another man's intentions; and therefore it is impossible that any should prove such an assembly unlawful. This is properly an unlawful assembly, according to the definition of the law, when several persons are met together with design to use violence, and to do mischief: but that Dissenters meet with no such intention, is manifest to the whole world; therefore their assemblies are not unlawful. He that hath only right to be worshipped, who is God, hath only right to institute how he will be worshipped : and such as worship him in that way they apprehend him to have instituted, are so far from being unlawful assemblers, that therein they do but express their duty they owe to God.
[. Tumultuously'] Imports as much as disorderly, or an assembly full of noise, bustle, and confusion, using force and violence to the injury of persons, houses, or grounds. But whether religious Dissenters, in their peaceable meetings, therein desiring and seeking nothing more than to express that duty they owe to God Almighty, be guilty of a tumultuous action, or meeting, in the sense expressed (and which is the very definition of the law) will be the question. Certainly, such as call these meetings tumultuous, as to break the peace, offer the greatest violence to common words that can well be imagined; for they may as rightly say, such persons meet adulterously, thievishly, &c. as to affirm they meet tumultuously, because they are as truly applicable. In short, such particulars as are required to prove such meetings in law, are wholly wanting.
Sect. 9. [To the disturbance of the peace.']
If the disturbance of the peace be but matter of form with the rest, as is usually pleaded; leave out this matter of form, and then see what great matter will be left.
Certainly such assemblies as are not to the breach and disturbance of the peace, are far from being unlawful or tumultuary. But if the peace be broken by them, how comes it the evidence was so short? We cannot believe it was in favour of the prisoners. This may shew to all the reasonable world, how forward some are to brand innocency with hateful names, to bring a suspicion where there was none deserved.
Sect. 10. [That the said Penn and Mead met by agreement beforehand made.']
But if persons that never saw each other, nor conversed together, neither had correspondence by any other hand, cannot be said to be agreed to any action before it be done; then the prisoners were far from an agreement; for they had never seen, conversed, nor corresponded, directly, nor indirectly, before the officers came to disturb the assembly. We well know how far they would have stretched the word agreement, or conspiracy; but God, who brings to nought all the counsels of the wicked, prevented their cruel designs.
Sect. 11. That William Mead did abet the said William Penn in preaching.']
No man can be said to abet another, whilst they are both unknown to each other; especially in this case, where ahetting follows agreeing, and agreeing supposes foreknowledge. Nay, the word abet in law, signifies to command, procure, or counsel a person; which W. Mead could not be said to do, in reference to W. Penn, they being so great strangers one to another, and at so great a distance : for the evidence proves that he was with Lieutenant Cook; and Lieutenant Cook swears, he could not make his way to W. Penn for the croud.
Sect. 12. ['That W. Penn's preaching and speaking caused a great concourse and tumult of people to remain and continue a long time in the street.']
But this is so improbable to believe, that the very nature of a tumult admits of no such thing as preaching ; but implies a disorderly multitude, where all may be said to speak, rather than any to hear.
Sect. 1. [In contempt of the king and his laws.']
They are so far from contemning the king and his laws, that they are obliged and constrained by their own principles, to obey every ordinance of man for the Lord's sake, but not against the Lord for man's sake,” which is the question in hand. Besides, their continuance there was not in contempt, but by the permission of the chief officer present, that came there by the king's authority. Nor is it for the honour of the king, that such persons should be said to act in contempt of his laws, as only meet to honour God and his laws.
Sect. 2. [ And to the great disturbance of the king's peace.']
It is far from disturbing or breaking the king's peace, for men peaceably to meet to worship God : for it is then properly broken' and invaded, when force and violence are used, to the hurt and prejudice of persons and estates; or when any thing is done that tends to the stirring up of sedition, and begetting in people a dislike of the civil government. But that such things are not practised by us in our assemblies, either to offer violence to mens persons and estates, or to stir up people to sedition, or dislike to the civil government, is obvious to all that visit our assemblies.
Sect. 3. [. To the great terror and disturbance of the king's liege people and subjects, and to the evil example of all others in the like case offending, against the king's peace, his crown and dignity.']
Were these black criminations as true as they are wretchedly false, we should give as just an occasion to lose our liberties, as our cruel adversaries are ready to take any to deprive us unjustly of them. O! how notorious is it to all sober people, that our manner of life is far from terrifying any: and how absurd to think, that naked men in the generality of their conversation known to be harmless and quiet) should prove a terror or disturbance to the people! certainly, if any such thing should be in the time of our meetings, it is brought with the cruelty and barbarous actions of your own soldiers : they never learned by our example to beat, hale before magistrates, fine and imprison for matters relating to God's worship: neither can they say, we are their precedents for all those adulterous, prodigal, lascivious, drunken, swearing, and profane acts, they daily commit, and esteem rather occasion of brag and boast, than sorrow and repentance: no, they need not go so far; they have too many (God Almighty knows) of their own superiors for their example.
Sect. 4. But we can never pass over with silence, nor enough observe, the detestable juggle of such indictments; which we require all English and conscientious men to mind, as they value themselves on the like occasions. How little a grain of fact was proved, yet how spacious an indictment was made : had it related to the evidence, the bulk had been excusable; but when it only swelled with malicious scaring phrases, to suggest to the people that they were the merest villains, the most dangerous persons, and designing mutually the subversion of the law, and breach of the peace, to the terrifying of the people, &c. who can choose but tell them of their romance indictment, that is so forged, that it truly merits another against itself? This they childishly call form. But had an Italian, or other stranger, been in court, he would have judged it matter of fact, as thinking it unworthy of a king's court, to accuse men in terms not legally, truly, or probably, due to the fact they really had committed; as well as that no court would practise it, but that which loved to deprive men of their liberties and lives, rather than to save them, nolens, tolens.
Sect. 5. Had their cruelty and juggle ended itself here, they would have spared us the pains of any farther obser