Rec. No, 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 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. Court. Call over the Jury. Which was done. Clerk. What say you? Is William Penn Guilty of the matter whereof he stands indicted, in manner and form aforesaid, or Net Guilty? Forem. 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 any thing to do in the city, I will have an eye upon you. Mayor. Have you no more wit than to be led by such a pitiful fellow? I will cut his nose. Penn. 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. Mayor. Stop his mouth; gaoler, bring fetters, and stake him to the ground. Penn. 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 stedfastly 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 : 6 Rec. Gentlemen, we shall not be at this trade always with you you will find the next essions of parliament there will be a law inade, 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. Jury. We ought not to be returned, 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 carted about the city, as in Edward Srd's time. Forem. 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. Mayor. Take them up. Offic. My Lord, they will not go up. Obser. The Mayor spoke to the sheriff, and he came off 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 tomorrow morning, at 7 o'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 Mitchell, John Brightman, Charles Milson, Gregory Walklet, John Baily, William Leaver, James Damask, William Plumstead. Are you all agreed of your Verdict ?-Jury. Yes. Cler. Who shall speak for you? Cler. Look upon the prisoners. What say you? Is William Penn Guilty of the matter whereof be stands indicted, in manner and form, &c. or Not Guilty? Foreman. 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. Foreman. That is our Verdict; we have subscribed to it. Cler. How say you? is William Penn Guilty, &c. or Not Guilty. Foreman. Not Guilty. Cler. How say you? is William Mead Guilty, &c. or Not Guilty? Foreman. 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? Jury. Yes, we do so. Observ. The Bench being unsatisfied with the Verdict, commanded that every person | 40 marks a man; and imprisonment till paid. should distinctly answer to their names, and At which Penn stept up towards the bench, give in their Verdict, which they unanimously and said: 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 wholesome advice which was given you; God keep my life out of your hands, but for this the Court fines you See-Throgmorton's Case, vol. 1, p. 901; and the Case of Lilburne's Jury, Aug. 1653, ante, vol. 5, p. 445. "The practice heretofore in use of fining, imprisoning or otherwise punishing jurors, merely at the discretion of the court, for finding their verdict contrary to the direction of the judge, was arbitrary, unconstitutional and illegal; and is treated as such by sir Thomas Smith, 200 years ago; who accounted such doings to be very violent, tyrannical and contrary to the liberty and custom of the realm of England. [Smith's Commonw. 1. 3, c. 1.] For, as sir Matthew Hale well observes [2 Hal. P. C. 313.] it would be a most unhappy case for the judge himself, if the prisoner's fate depended upon his directions :-unhappy also for the prisoner; for if the judge's opinion must rule the verdict, the trial by jury would be useless. Yet in many instances [1 Lev. 9. T. Jones, 163.] where contrary to évidence the jury have found the prisoner Guilty, their verdict hath been mercifully set aside, and a new trial granted by the court of King's-bench; for in such case, as hath been said, it cannot be set right by attaint. But there hath yet been no instance of granting a new trial, where the prisoner was acquitted upon the first [2 Hawk. P. C. 442]." Blackst. Comm. b. 4, c. 27, p. 361. This practice of Fining is well treated by Hale, as follows: Penn. I demand my liberty, being freed by the Jury. Mayor. No, you are in for your fines. Mayor. For contempt of the Court. Penn. I ask, if it be according to the fundamental laws of England, that any Englishin this case so properly determine matter of law as matter of fact; for whether murder or not depends upon a preconceived malice, which though it is to be presumed, where no provocation appears, is matter of fact, and proper for the consideration of a jury."] that the grand jury is to blame, because they take upon them to anticipate the evidence that is to be given to the petit jury, and so determine matter of law which belongs to the court to determine, and by this means many murders may escape under the disguise of manslaughter, and so escape with their clergy. "Some therefore have made it a practice to set a fine upon the grand jury in this case, and it hath proceeded so far as to fine petit juries also in such like cases; whereof hereafter. "That which I think herein and in other concealments of grand inquests, is as follows: "I. That the court may receive such a return from the grand inquest, and it is a matter of discretion, especially if upon inquiry from the indictors or witnesses, or upon view of their examinations it doth plainly appear, that the crime amounts to no more. "2. That barely upon such a return no fine can be set upon the grand inquest, unless the evidence to the grand inquest be given at the bar in the presence of the court; for otherwise the court cannot understand whether the grand inquest doth well or ill in such case. 3. That if the evidence to the grand inquest be given at the bar upon an indictment "If a bill be against A. for murder, and the in the King's-bench, and the grand inquest wilf grand inquest upon the evidence before them, not find a bill according to the direction of that or their own knowledge be satisfied that it was court; as for instance, will find a man Guilty but per infortunium or se defendendo, and ac- only se defendendo, or of manslaughter when it cordingly return the bill specially, the court is murder, that court may set a fine upon the may remand them to consider better of it, or grand inquest, and so it hath been practised; may hear the evidence at the bar, and accord-for it is the highest court in England of ordinary ingly direct the grand inquest; but I have justice, especially in criminal causes. known a judge blamed for setting a fine upon the grand inquest for such a return, because in truth it comes not up to felony. "But if a bill goes out against B. for murder, and it doth constare de persona occidentis, may the grand inquest find the bill for manslaughter and ignoramus for the murder? and is the court bound to receive such a return? "In this case, of all hands it is agreed [upon this Emlyn remarks, "This is far from being agreed of all hands, for such an anticipation of the evidence by the grand jury is what they cannot avoid, they being bound by their oath as much as the petit jury, to present the whole ruth and nothing but the truth; nor do they "4. That if the justices of Oyer and Terminer or gaol-delivery, having heard the evidence at the bar, the grand inquest will not find according to their directions, the justices may bind them over by recognizance into the King's-bench, and upon an information against them they may be fined. "5. That in such a case justices of peace, Oyer and Terminer or gaol-delivery may, according to the statute of 3 H. 7, c. 1, impannel another inquest to enquire of their concealments, and thereupon set fines upon them. "6. But in my opinion fines set upon grand inquests by justices of the peace, Oyer and Terminer or gaol-delivery for concealments or ་ man should be fined or amerced, but by the The following Article was subjoined to the account of this Trial printed in 1670: An APPENDIX by way of DEFENCE for the PRISONERS, as what might have been offered against the Indictment and illegal Proceedings of the Court thereon, had they not violently over-ruled and stopped them. Penn. I can never urge the fundamental laws of England, but you cry, Take him away, UPON a sober disquisition into the several take him away. But it is no wonder, since the Spanish Inquisition hath so great a place in the parts of the Indictment, we find it so wretchedRecorder's heart. God Almighty, who is just, ly defective, as if it were nothing else but a mere composition of error, rather calculated to the will judge you all for these things. malicious designs of the judges, than to the least verity of fact committed by the prisoners. Observ. They hauled the prisoners into the Bale-dock, and from thence sent them to Newgate, for non-payment of their fines; and so were their Jury. But the Jury were afterwards discharged upon an Habeas Corpus, returnable in the Common-Pleas, where their commitment was adjudged illegal. See the next Case. 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. Sec. 1. It is the constant common law of England, that no man should be taken, imprisoned, amerced, disseized of his free-hold, 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. Sec. 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. Sec. 3. We shall neglect to mention here how much they were deprived of that just advantage 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. non-presentments in any other manner, are not warrantable by law; and though the late practice hath been for such justices to set fines arbitrarily, yea not only upon grand inquests, but also upon the petit jury in criminal causes, if they find not according to their directions, it weighs not much with me for these reasons; 1. Because I have seen arbitrary practice still go, from one thing to another, the fines set upon grand inquests began, then they set fines upon the petit juries for not finding according to the directions of the court; then afterwards the judges of nisi prius proceeded to fine jurors in civil causes, if they gave not a verdict according to direction even in points of fact; this was done by a judge of assize [Justice Hyde at Oxford. Vaugh. 145.] in Oxfordshire, and the fine estreated; but I, by the advice of most of the judges of England, staid process upon that fine: the like was done by the same judge in a case of burglary, the fine was estreated into the Exchequer; but by the like advice I stayed proSec. 4. The evidence, you have read in the cess; and in the case of Wagstaff [Vaugh. 153.] and other jurors fined at the Old Bailey, for trial, the utmost import of which, is no more giving a verdict contrary to direction, by the than this; That William Penn was speaking in Gracious-street, to an assembly of people, advice of all the judges of England (only one dissenting) it was ruled to be against law: but but knew not what he said, which is so great a of this hereafter [c. 42.] 2. My second rea- contradiction, as he that runs may read it: for son is, because the statute of 3 H. 75 c. 1, pre- understand not what he saith he may conno man can say another man preaches, and yet scribes a way for their fining, which would not have been if they had been arbitrarily subject jecture it, but that is a lame evidence in law; to a fine. before. 3. It is of very ill conseit might as well have been sworn, that he was quence, for the privilege of an Englishman is, speaking of law, physic, trade, or any other Besides there is that his life shall not be drawn in danger with matter of civil concernment. out due presentment or indictment, and this no law against preaching what is truth; whewould be but a slender screen or safe guard, if ther it be in the street, or any other place: nor is it possible, that any man can truly swear every justice of peace, or commissioner of Oyer and Terminer or gaol-delivery, may, make the that he preached sedition, heresy, &c. unless he so heard him, that he could tell what he said. grand jury present what he pleases, or otherwise fine them; and there is no parity of reason or example between inferior judges and the court of King's-bench, which is the supreme ordinary court of justice in such cases," 2 Hale's P. C. 158. Sec. 5. The evidence further saith, that William Mead was there, but till being in Gracious, street be a fault, and bearing 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. Sec. 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. Sec. 7. [That they met with force and arms] which is so great a lye, that the court had no better cover for it, than to tell the jury, it was only a piece of formy 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 meer 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. Sec. 8. [Unlawfully 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, conclude 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 the assemblers intent not to worship God, but that no man can do, because no man can know another man's intentions, and therefore its im possible that any should prove such an assembly unlawful. That is properly an unlawful assembly, according to the definition of the law, when several persons are met together, with de sign to use violence and to do mischief; but that dissenters meet with no such intention, is manifest to the whole world, therefore their as semblies are not unlawful; he that hath only right to be worshipped, which 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 the 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 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 be well imagined: for they may as rightly say, such persons meet adulterously, thievishly, &c. as to affirm they meet tumultuously, because they are as truly applica ble; in short, such particulars, as are required to prove them such meetings in law, are wholly wanting. Sec. 9. [To the disturbance of the peace.] If the disturbance of the peace be but mat ter 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 from being unlawful or tumultuary; but if the breach and disturbance of the peace, are far 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 all the reasonable world, how forward are to brand innocency with hateful names, to bring a suspicion, where there was none deserved. some Sec. 10. [That the said Penn and Mead met, by agreement before hand made.] But if persons that never saw each other, nor converse 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 ponded, directly, nor indirectly, before the they had never seen, conversed, nor corresofficers 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 the councils of the wicked, prevented their cruel designs. Sec. 11. [That William Mead did abet the said William Penn in preaching.] No man can be said to abet another, whilst cially in this case, where abetting follows agreethey are both unknown to each other, espeing, and agreeing supposes fore-knowledge. Nay the word abet in law signifies to command, procure or counsel a person, which W. Mead, Penn, they being so great strangers one to anocould not be said to do, in reference to W. dence proves that he was with lieutenant Cook, ther, and at so great a distance; for the eviand lieutenant Cook swears he could not make his way to W. Penu, for the croud. Sec. 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. Sec. 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 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 question in hand. meet to honour God and his laws. Sec. 2. [And to the great disturbance of the king's peace.] It is far from disturbing and 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 the people to sedition, or dislike to the civil government, is obvious to all that visit our assemblies. Sec. 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 it is 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. Sec. 4. But we can never pass over with silence, nor enough observe the detestable jug gle of such indictments, which we require all English and conscientious men to mind, as they value themselves in 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 of the laws, and breach of the peace, to the persons, and designing mutually the subversion terrifying of the people, &c. Who can choose but tell them of their rotruly merits another against itself. mance-indictment, that is so forged; as it This they childishly call form; but had an Itahave judged it matter of fact, as thinking it lian or other stranger been in court, he would 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 Volens. here itself, they would have spared us the pains Sec. 5. Had their cruelty and juggle ended of any further observation. But that which we have to add, on the prisoners behalf, renders their actions so abominable, in the sight of justice, that all honest and ingenious hearts must needs abhor their base snares. fact only, they were to bring the prisoners in They tell the jury, That being but judges of Guilty (that is of the fact) at their peril; and it was the part of the bench, to judge what was law; So that if the jury had brought them in Guilty, without any further additional explanation (though intentionally they meant only of the fact proved by evidence) yet the bench would have extended it to every part of the indictment, and by this impious delusion, to have perjured a well meaning jury, and have had their barbarous ends upon the inno cent prisoners. But the jury better understanding themselves brought in William Penn Guilty of the fact proved, namely, That he was speaking to some people met in Gracious Church-Street, but not of an unlawful assembly, so circumstantiated (the mention of which stabbed their design of moulding the general answer of Guilty, to their own ends, to the heart) nor indeed could they do otherwise; for as well the jury as prisoners, were denied to have any law produced, by which they might measure the truth of the indictment, and guilt of the fact. But because the Recorder would or could not, perhaps it is so long since he read law that he may have forgotten it, we shall perform his part, in shewing what is that common law of the land, which in general, he said, they were indicted for the breach of, and which indeed if rightly understood, is the undoubted birthright of every Englishman; yea, the inhe ritance of inheritances, Major Hæriditas venit parentibus.' Coke Instit. 2. 56. unicuique nostrum a jure, et Legibus, quam a Sec. 6. All the various kinds or models of government, that are in the world, stand either upon will and power, or condition and con tract, the first, rule by men, the second, by |