the Recorder Am I Fined also Rec. Yes Mead. I desire the Jury and all people to take notice of the injustice of the Recorder who spake to me to pull off my Hat and yet he hath put a Fine on my Head O fear the Lord and dread his power and yield to the guidance of his holy Spirit for he is not far from every one of you Nota. This is insignificant Canting The Jury sworn again Nota. It was by Sir John Robinson observed that Bushel the tender conscienced Jury-man made an offer to kiss the Book but did not wherefore he was called to by the Court to be sworn again The Clerk read the Indictment as aforesaid Cler. Call James Cook into the Court give him his Oath He being sworn he gave his Evidence Cook I was sent for from the Exchange to disperse a Meeting in Gracious-street where I saw Mr. Penn speaking to the people but I could not hear what he said because of the noise I endevoured to make way to take him but I could not get to him for the crowd of people upon which Mr. Mead came to me and desired me to let him go on for when he had done he would bring Mr. Penn to me Court What number do you think might be there Cook About three or four hundred people One Read a Constable being sworn was asked What do you know concerning the Prisoners at the Barr Read My Lord I went to Gracious-street where I found a great crowd of people and I heard Mr. Penn preach to them I endevoured with my Watchmen to get at Mr. Penn to pull him down but I could not the people kicking my Watchmen and my self on the shins I saw likewise Captain Mead speaking to Lieutenant Cook but what he said I cannot tell Mead. What did William Penn say Read There was such a great noise that I could not tell what he said Mead. Jury observe this Evidence he saith he heard him preach and yet saith he doth not know what he said Court What number do you think might be there Read About four or five hundred Pen. I desire to know of him what day it was Read The 14th day of August Pen. Did he speak to me or let me know he was there for I am very sure I never saw him Crier Call Whiting into the Court. Court Give him his Oath Whiting My Lord I saw a great number of People and Mr. Penn I suppose was speaking I saw him make a motion with his Hands and heard some noise but could not understand what he said but for Captain Mead I did not see him there Record What say you Mr Mead were you there Mead. It 's a Maxim in your own Law Nemo tenetur accusare seipsum Which if it be not true Latine I am sure it 's true English That no man is bound to accuse himself And why dost thou offer to ensnare me with such a Question Doth not this shew thy Malice Is this like a Judge that ought to be Council for the Prisoner at the Bar Record Sir Hold your Tongue I did not go about to ensnare you Penn. I desire we may come more close to the point and that Silence be commanded in the Court. Silence being made Pen. We confess our selves to be so far from recanting or declining to vindicate the Assembling of our selves to Preach Pray or worship the Eternal Holy Just God that we declare to all the World That we do believe it to be our indispensable Duty to meet incessantly upon so good an Account nor shall all the Powers upon Earth be able to divert us from reverencing and adoring our God who made us Nota As clear Evidence as ever was offered to any Jury two Witnesses prove the Fact against both the Prisoners and the Prisoners confess the whole Matter in effect and justifie themselves and declare they will do the like again whatsoever Laws the King and Parliament can provide against the same O confident Impudency Surely both King and Parliament will take notice of Penn's Arrogancy Sr. Rich. Browne You are not here for worshipping of God but for breaking the Law Mead. Browne What have you to do there you are no Justice Come off the Bench. Brown Sir I am a Justice and you are an Impudent Fellow Pen. I affirm I have broken no Law nor am I guilty of the Indictment laid to my Charge And to the end the Bench the Jury and my self with those that hear us may have a more direct understanding of this Procedure I desire you would let me know by what Law it is you prosecute me Rec. The Indictment is grounded upon the Common Law Pen. Where is that Common Law Rec. You must not think I am able to run up so many Years and so many Adjudged Cases which we call Common Law to answer your Curiosity Pen. If it be Common it should not be so hard to produce Nota. How Mr. Penn plays upon the Word Common Mayor It 's call'd Common Law to distinguish it from the Statute-Law Now the Common Law is Common Right or Lex Rationis imprinted in every mans Understanding and the publick Peace is the Law 's Darling and every great Assembly of people may endanger the publick Peace and therefore the Law esteems them unlawful Assemblies unless they have a Warrant for their Assembling Recor. Sir Speak to the Indictment you are now upon Matter of Fact which Fact you have heard proved against you you are to answer it If the Fact be found against you you may then speak to the Matter of Law in Arrest of Judgment and you shall be heard Pen. I say it is my place to speak to Matter of Law I am arraign'd a Prisoner my Liberty which is next to Life it self is now concerned you are many Mouths and Ears against me and if I must not be allowed to make the best of my Case it is hard unless you shew me and the people the Law you ground your Indictment upon I shall take it for granted your proceedings are meerly Arbitrary Rec. You have been told if the Fact be found against you it is time then to dispute the Law The Question now is whether you are guilty of the Indictment Pen. I have asked but one Question and you have not answered me though the Rights and Priviledges 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 all night Mayor You have been answered your Question it 's time to dispute the point of Law if you are found guilty of the Fact But your Design is to affront the Court and amuse the people you have not Confidence enough to deny the Fact so plainly prov'd against you but you have Impudence enough to abuse the Court by your unseasonable Discourse 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 the 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 priviledges of Englishmen to your Sinister and Arbitrary Designs Rec. Take him away 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 Bail-Dock Pen. 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 Laws which relate to Liberty and Property and are not limited to particular perswasions in Matters of Religion must not be indispensably maintained and observed who can say he hath right to the Coat upon his Back c. Rec. Be silent there Pen. I am not to be silent in a Case wherein I am so much concerned Nota Mr. Penn makes it to be a Fundamental Law viz. The Jury to be his Sole Judges when by the Fundamental Laws all Trials are to be by Judge and Jury and never questioned by any before Mr. Penn the New Broacher of Old Heresies disputed the same And this is the Reason he so often calleth for Oyer of the Law upon which the Indictment is grounded that so the Jurors might measure the Truth of the Indictment and Guilt of the Fact by the knowledge of that Law See his Book fol 30. Mead. You men of the Jury here I do now stand to answer to an Indictment against me which is a Bundle of Stuffe Lies and Falshoods for therein I am accused that I met vi armis 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 Mayor Believe you who can your Brethren the Munsterians pretended as much Mead. I say I am a peaceable man therefore it is a proper Question what William Penn demanded in this Case an Oyer of the Law on which the 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 Vnlawful Assembly Coke 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 mans Land to cut down his Grass his Wood or break down his Pales Rec. Yes and to do any other Unlawful Act. But I thank you Mr. Mead That you will tell me what the Law is pulling off his Hat Mead. Thou maist put on thy Hat I have never a Fee for thee now Mayor An intollerable Affront Mr. Mead I thought you had been a meek man as you profess You deserve to have your Tougue cut out for affronting the Court as well as the Prisoner had his Hand cut off that threw a Stone at the Court. Rec. If you discourse on this manner I shall take occasion against you Nota. Mr. Mead being put into the Bail-Dock the Recorder proceeded to give the Jury their Charge Record You have heard what the Indict ment is it is for Preaching or Speaking to the people and drawing a Tumultuous Company after them there are three Witnesses that have proved this That Penn did preach there that Mr. Mead was there and did abet him and did allow of the same now we are upon the matter of Fact which you are to keep to and observe as what hath been sworn at your peril Pen. I appeal to the Jury who are my Judges 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 's directly opposite to and destructive of the undoubted Right of every English Prisoner as Coke in the 2 Inst 29. on the Chap. of Magna Charta speaks Rec. Why why you are present you do hear do you not Pen. No thanks to the Court that commanded me into the Bail-Dock Nota. Penn made such an uncivil noise that the Court could not give the Jury the Charge he was therefore put into the Bail-Dock which stands even with the Bar and the Prisoners might hear the Charge there as well as a Prisoner might hear at the Bar This therefore was a causless Exclamation Mead. Are these according to the Rights and Priviledges of Englishmen that we should not be heard but turned into the Bail-Dock for making our Defence and the Jury to have their Charge given them in our Absence 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 that you i. e. the Jury your selves would be tired out and not have patience to hear them Nota. The Jury withdrew for an hour and half eight came down agreed but four remain'd above the Court sent for them and they accordingly came down The four Dissenters said They were not agreed The Recorder speaking to Mr. Bushel said Rec. Sir You are a Cause of this Disturbance and manifestly shew your self an Abettor of Faction I shall set a Mark on you Sir J. Robinson Mr. Bushel I have known you this fourteen years you have thrust your self upon this Jury because you think there is some work for you I tell you you deserve to be indicted more than any man that hath been brought to the Bar this day Bush No Sir John There were threescore before me and I would willingly have got off but could not Sir Tho. Bludw 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 Mayor You are an Impudent Fellow I will put a Mark upon you Nota. The Jury was sent up until agreed and some considerable time after they returned Silence call'd the Jury was called over 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 where of he stands Indicted in manner and form or not guilty Fore-m. Guilty of speaking in Gracious-Street Court Is that all Fore-m. That is all I have in Commission Record You had as good say nothing May. What was it not an unlawful Assembly You mean he was speaking to a Tumult of People there Fore-m. My Lord this was all I had in Commission Nota. Six or seven of the Jury did agree to the Mayors Question upon which Bushel Hammond and two others opposed
themselves they allowed of no such Word as an Vnlawful Assembly in their Verdict Rec. The Law of England will not allow you to depart till you have given in your Verdict Jury We have given in our Verdict and can give in no other Rec. Gentlemen you have not given in your Verdict this is no Verdict in Law and you had as good say nothing therefore go and consider it again once more that we may make an end of this troublesome business Jury We desire we may have Pen Ink and Paper Nota The Court adjourns for half an hour The Court returns and the Jury come down likewise The Prisoners are brought to the Bar The Jury being called over Cler. Are you agreed of your Verdict Jury Yes Cler. Who shall speak for you Jury Our Fore-man Cler. Look upon the Prisoners what say you 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 VVE the Jurors hereafter named do find William Penn to be guilty of Speaking or Preaching to an Assembly met together in Gracious-Street the 14 th of August-last 1670. And that William Mead is not guilty of the said Indictment Thomas Veer Fore-man Edward Bushel John Hammond Henry Henley Henry Michel John Brightman Charles Milson Gregory Walklet John Baily William Lever James Damask William Plumsted Nota Some of the Court were for accepting this Verdict but the Evidence being as plain and full against Mead as against Penn the Court refused the Verdict Mayor What will you be led by such a silly Fellow as Bushel a Canting Fellow I warrant you you shall come no more upon Juries in haste You are a Fore-man indeed I thought you had understood your place better Record Gentlemen You shall not be dismiss'd till we have a Verdict and by the Law of England you are to be lock'd up without Meat Drink Fire or Tobacco you do abuse the Court we will have a Verdict by the help of God Pen. My Jury who are my Judges ought not to be thus menaced their Verdict ought to be free and not compelled the Bench ought to wait on them and 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 Juries Verdict Rec. Stop that prating Fellows mouth or put him out of the Court. Nota How Mr. Penn abuses the Court the Court are by Law Judges what is a Verdict in Law and what is not a Verdict in Law May. Gentlemen You have heard that Mr. Penn Preached that he gathered thereby a Tumult of People that Mr. Mead was there and abetted him and that they not only disobey the Martial Power but Civil also Penn. It 's a great Mistake we did not make the tumult but they that interrupted us We met not there with a Design to disturb the Civil peace since 1. We were with force of Arms kept out of our lawful House and met as near it as the Souldiers would give us leave 2. Because it was no new thing but what was usual and customary with us it 's very well known we are a peaceable people and cannot offer violence to any man Nota A peaceable innocent People indeed that when the King had seized the Meeting-House into His Hands as by Law he might they would come and break open the Doors and there congregate expresly against the Kings Command and therefore there was a necessity of Souldiers to keep the Kings possession they violently overpow'ring the Constable and his Watchmen and it is proved that these People at this time kicked and spurned the Constable and his Watchmen he endeavouring to dissipate this Unlawful Assembly as is sworn by Read the Constable Penn. The agreement of Twelve Men is a Verdict in Law and such an 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 contrary to this I affirm they are perjur'd men in Law Bushel Nor will we ever do it Nota The Jury in Mr. Penn's opinion and Bushel's both are perjur'd men for that at last they brought in a Verdict contradictory to this At this time some of the Jury complained to the Court that the four men viz. Bushel and Hammond and the other two would starve them and that they had brought Strong-Water Bottles in their Pockets designedly Mayor You are as strong as any of them starve them and hold your Principles Rec. Gentlemen You must be contented with your hard Fare 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 Nota The Court having a respect to the health of the Jury adjourned until Seven next Morning although it was Sunday which otherwise they would not have done The Court meets accordingly the Jury is called over Clerk Are you agreed upon your Verdict Jury Yes Clerk Who shall speak for you Jury Our Fore-man Clerk Look upon the Prisoners at the Bar Is William Penn guilty of the Matter whereof he stands Indicted Fore-m. William Penn is guilty of speaking in Gracious-street Mayor To an unlawful Assembly Bushel No my Lord we give no other Verdict than what we gave last night Mayor You are a factious fellow and a course ought to be taken with you Sir Tho. Bludworth I knew Bushel would never yield Bushel Sir Thomas I have done according to my Conscience Mayor That Conscience of yours would cut my Throat Bushel No my Lord it never shall Mayor But rather than you shall cut my Throat I will in defence of my self cut yours first Record He hath inspired the Jury he has the Spirit of Divination I will have a positive Verdict or else you shall starve for it Penn. I will ask the Recorder one Question Do you allow of the Verdict given of William Mead Rec. It cannot be a Verdict for that you both were indicted for a Conspiracy and one being found Not Guilty and not the other it could not be a Verdict Penn. If Not Guilty be no Verdict then you make of the Jury and Magna Charta a Nose of Wax Mead. How Is Not-Guilty no Verdict Recor. No it 's no Verdict in this Case 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 for that I could not conspire alone The Jury return Crier Oyes c. Silence in the Court. Court Call over the Jury Clerk What say you Is William Penn guilty of the Matter whereof he stands Indicted in manner and form aforesaid or not guilty Fore-m. Guilty of speaking in Gracious-Street Record What is this to the purpose I say I will have a Verdict and speaking to Edward Bushel said
You are a Factious Fellow I will set a Mark upon you and whilst I have to do in the City I will have an eye on you Mayor Have you no more wit than to be led by such a pitiful Fellow as Bushel Were I of the Jury rather than he should starve me I would slit his Nose for him Penn. It is intolerable that my Jury should be thus menaced Is this according to the Fundamental Laws Nota This is the fourth time the Jury brought in this insignificant Verdict viz. I hat they find Penn guilty of speaking in Gracious-Street and how this answers the Question viz. What say you Is William Penn guilty of the Matter whereof he stands Indicted in manner and form or not guilty Let the world judge whether this be a Verdict or not They thus often abusing the Court made the displeasure of the Court against them and surely not without cause Nota William Penn made such a Noise in the Court that the Court could not hear the Jury nor the Jury the Court. Record My Lord you must take a course with that same Fellow Mayor Stop his mouth Goaler bring Fetters and stake him to the Ground Nota. Upon this Mr. Penn was very silent and quiet although nothing was done to him Record Till now I never understood the reason of the policy and prudence of the Spaniards in suffering the Inquisition amongst them and certainly it will never be well with us till some thing like unto the Spanish Inquisition be in England Nota The Jury being commanded up again the Jury refused The Recorder directing his Speech to the Jury said Record Gentlemen We shall not always be at this Trade with you you will find the next Session of Parliament there will be a Law made That those that will not conform to the Law shall not have the protection of the Law Jury We ought not to be returned having all agreed and set our hands to the Verdict Record Your Verdict is no Verdict in Law you play upon the Court I say you shall go together and bring in another Verdict or you shall starve Jury 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 Nota. These Men were very like to be starved when they had Roast beef Capons Wine and Strong-drink sent them as it ready to be proved during the time they were considering of their Verdict Officer My Lord they will not go up Nota. The Court spoke to the Sheriff and he came from his Seat and said Sheriff Come Gentlemen you must go up you see I am commanded to make you go Crier O yes c. The Court adjourns until seven of the clock next morning The Court sits the fifth of September 1670. Clerk Set William Penn and William Mead to the Bar Are you all agreed of your Verdict Jury Yes Clerk Who shall speak for you Jury Our Fore-man Clerk 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-m. Here is our Verdict in Writing and our hands subscribed to it Clerk How say you Is William Penn Guilty c or Not Guilty Fore-m. Not Guilty Clerk How say you Is William Mead Guilty c. or Not Guilty Fore-m. Not Guilty Clerk Then hearken to your Verdict you say That Will. Penn is not Guilty in manner and form as he stands Indicted You say that Will. Mead is not Guilty in manner and form as he stands Indicted And so you say all Jury Yes we do so Record I am sorry Gentlemen you have followed your own wilful Opinions rather than the good and wholesom advice which was given you God keep my Life out of your hands But for this the Court Fines you Forty Marks a Man and Imprisonment until paid Penn. I demand my Liberty being freed by the Jury Mayor No you are in for your Fines Penn. Fines for what Mayor For Contempt of the Court. Penn. I ask If it be according to the Fundamental Laws of England That any Englishman should be Fined or Amerced but by the judgment of his Peers or Jury Mayor By the Laws of England this Court hath power to Fine for Contempts SECT IV. The Fining of that Jury that gave two contrary Verdicts Justified to prevent a Failer of Justice in London IN regard that this is a Case that very much concerns the King and Kingdom and is now under the consideration of all the Judges I shall only make four Remarks upon this Case and leave the determination of the same to the Honourable Sages of our Law First Remark As Nature abhors a Vacuum in the Universe so it is the Honour of our Law that it will not suffer a Failer of Justice according to that Maxim Ne curia Regis desiceret in justitia exhibenda therefore it is that although our Law appoints all Trials to be by Juries yet in six Cases cited by my Lord Coke 1. p. Inst it sect 102. fol. 74. the Trial is by Certificate only and not by Jury The first whereof Littleton speaketh of in section 102. When a Man in time of War is out of the Realm in the Kings Wars As when a Lord distreineth his Tenant that holdeth of him by service of a whole Knights Fee and the Tenant pleadeth and will aver That he was with the King in Scotland c. by forty days and the Lord avers the contrary it is said That it shall be Tried by the Certificate of the Marshall of the Kings Host in writing under his seal which shall be sent to the Justices The second Case is In times of Peace out of the Realm As if it be alledged in avoidance of an Outlawry That the Defendant was in Prison at Bourdeaux It shall be Tried by Certificate of the Mayor of Bourdeaux The third Case is For Matters within the Realm The Custome of London shall be certified by the Mayor and Aldermen by the mouth of the Recorder Vid. the other extraordinary Cases at large in 1 part Institutes sect 102. fol. 74. The reason is Because by Law they cannot be otherwise Tried In like manner Petty Jurors that have given their Verdict contrary to their Evidence have been Fined by the Justices in Cases where the Law hath provided no other punishment as by Attaint c. Vid. Whartons Case Yelverton fol. 23. Noy reports the same fol. 48. and Judge Popham said there were divers Presidents to that purpose and cites divers one by Justices in Eire Wats vers Brains In an Appeal in Banco Regis Crooke l. 3. 779. Vid. Leonard l. 2. 132. pl. 175. l. 3. 147. pl. 196. Southwels Case in the Exchequer More 730. pl. 1016. Lemnois Case in the Court of Wards Coke l. 12. 23. Prices Case in the Star-Chamber These Cases are all in Print Trin. 17. Car. H. in Banco Regis Wagstaffs Case This
agrees with our present Case in all points Mich. 16. Car. II. in Panco Regis Leech and five others being of the Jury at Justice-Hall in the Old Baily the last Sessions refused to find certain Quakers Guilty according to their Evidence and upon that they were bound to appear in the Kings Bench the first day of the next Term they appeared accordingly and the Court directed an Information to be brought against them and upon that they were Fined So that it plainly appears The Fining of Jurors that find contrary to their Evidence is no Innovation but always practiced and that by as learned Judges as ever England bred The second Remark If it be objected That in the present Case being an Indictment for a Trespass an Attaint doth lie and therefore ought to be punished in Attaint Answer Brooke Title Attaint 130 saith Et sic admittitur qd si le Roy fuit merement Party Attaint negist Where the King is sole Party Attaint doth not lie In our present Case the King is sole Party and therefore by the old Law no Attaint doth lie Nota. Brookes was Chief-Justice in Henry the Eighths time and a Reporter in Henry the Sevenths time and therefore may well be presumed to know what the Common Law was in Case of Attaints he living when the Statutes of the 11 Henry 7. cap. 21. and the Statute of 23. H. 8. cap. 3. were made by which Statutes in Attaint in Cases betwixt party and party the judgment was altered Because I am not willing to make mistakes by my construction of the Books I will recite you the very words of the Year-Book and of Brookes himself Mich. 20. H. 7. 6. pl. 16. ATTaint port ê‘ William Tay versÌ„ Henry Tust sur faux seremÌ„t in Bill sur lestatute de vicount ê“ ê“ render argent de diuÌ„se homes encounter mesme le statute Coningesby alledge en arrest que l'attaint negist pur ceo que Roy est party car Henry sue pur luy et ê“le Roy Et auxy le Record est Quod reddat H. T. 40 l. quas domino Regi predicto Henrico debet Issint party-Et auxy ne poit estre restore vers le Roy per Judgement icy Mes Couient suer al Roy per peticÌ„on ê“ que c. Fairfax Le Roy nest party Car si H. T. discontinue le suit ou soit Nonsue ou release l'action est determine vers le Roy Et Coment que le Roy auÌ„oit le moyety recouÌ„ed vncore ceo ne fuit le Roy party Nient pluis in TrnÌ„s ou Forcible Entry on autres actions ou le Roy aâ—a fine in queux Cases gist attaint assets bien ê“ que c. Et l'attaint fuit dd et remaine ê‘ default des Iurors Br. Attaint 127. Nota diciturque P. InformacÌ„on fait ê‘ le Roy que pass sur issue trie le Roy ne l'informer n aâ—â—a attaint car l'informer n'est plenemÌ„t party et quant le Defendt ad respond le Attorney le Roy reply ê‘le Roy et nul plus mention est puis del Informer ideo ne l'un ne l'auter n'auÌ„a attaint 4 M. 1. Attaint 130. Sâ— home port Bill Quod redd T. 40. l. quas Domino Regi pred T. debet sur Stat. de 23 H. 6. c. 10. et le Jury passa vers le Defendt fauxemÌ„t attaint gift ê‘ le Defendt Car le Roy nest merement party Car le party poit discontinue ou release sans le Roy nient obstant que le Roy recouÌ„a le moyety Et ideo l'attaint fuit dd quod Nota. Et sic admittitur que si le Roy fuit merement party Attaint ne gist Fitz Herbert Natura brevium Title Attaint G. The Writ of Attaint lieth where false Verdict is given in a Court of Record against the Plaintiff or Defendant or against the Demandant or Tenant in a Plea real or personal sued by Writ or by Bill if the Debt or Dammages do exceed 40 s. then he against whom the Verdict passed shall have a Writ of Attaint and the Writ shall be such as is set down there which is between Party and Party vid. H. Coke l. 3. Instit sect 514. fol. 294. saith the same Attincta is a Writ that lieth where a false Verdict in a Court of Record upon issue joyned betwixt Parties is given Nota. If these Definitions are true an Attaint lieth only betwixt Party and Party Ergo Not in Indictments c. It is agreed by all sides That an Attaint lieth not in an Indictment of Treason Murder or Felony much less in an Indictment of Trespass which in the Eye of the Law is a far lesser Offence than them aforenamed Nota. At Common-Law no Attaint did lie in Action of Trespass before the Stat. 1 Edw. 3. cap. 6. And by the Statute 5 Edw. 3. cap. 7. it 's Enacted That whereas it is contained in a Statute late made at Westminster in the first Year of the Reign of Our Soveraign Lord the King that now is That Attaints shall be granted in Writs of Trespass It is accorded and established That Writs of Attaint shall be from henceforth granted as well in Pleas of Trespass moved without Writ as by Writ before Justices of Record if the Dammages judged do pass 40 s. Nota. If at the Common-Law no Attaint lay in Actions of Trespass surely then no Attaint did lie in Indictments of Trespass where there is no Dammages given à fortiori The third Remark It is to be observed that the Common Law as to Attaints is altered since the Statute of the 23. H. 8. cap. 3. Doth not my Lord Coke upon Littleton lib. 3. cap. 8. Sect. 514. affirm the same And seeing saith he That all Trials of Real Personal and Mixt Actions depend upon the Oath of Twelve men prudent Antiquity inflicteth a strange and severe punishment upon them if they were attainted of Perjury 1. Quod amittat Liberam Legem in perpetuum 2. Quod forisfaciat omnia Bona Catalla sua 3. Quod Terrae Tenementa in manus Domini Regis capiantur 4. Quod Vxores Liberi extra domus suus ejicerentur 5. Quod Domus suae prostrentur 6. Quod Arbores suae extirpentur 7. Quod Prata sua arentur 8. Quod Corpora sua Carceri mancipentur So odious is this Perjury in the Eye of the Common Law But since Littleton wrote saith Coke A Statute hath been made in mitigation of the Severity of the Common Law in case when the Petite Jury is attainted And it can never be proved that since that Statute that ever any Attaint was maintainable at the Common Law And I do hereby put the Opponent to prove two things 1. That he produce a Case where an Attaint was brought in case of a False Verdict in an Indictment of Trespass or that he can shew the Form of a Writ of Attaint for that purpose either in the Register or Natura Brevium 2. Let him instance a Case where an Attaint was maintained at common-Common-Law since that Statute trit mihi magnus Apollâ— The fourth Remark It appears by the Proeme of the Statute made 11. H. 7. cap. 21. That no Attaint lay where Juries gave false Verdicts in London vid. the Statute which saith Whereas Perjury is much and customably used within the City of London amongst such persons as passen and be impannelled upon Issues joyned betwixt Party and Party in the Courts of the said City to the great Displeasure of Almighty God and also to the Disinheritance and manifold Wrongs of the Kings Subjects for asmuch as there is Enpannel in the same Inquests persons of little Substance Discretion and Reputation and also no Attaint ne other sufficient punishment is for such Perjured persons before this time purveyed and ordained within the same City So that that Statute and the Statute of the 23. H. 8. cap. 3. ordained Perjury of the Jury-men to be punished by Attaint in the Hustings Court of Common-Pleas of London before the Mayor and six Aldermen Surely if Attaint lay not in London in Actions betwixt Party and Party before that time Attaints likewise in Indictments could not lie And this will be taken for granted by all men unless our Opponents can otherwise make it appear by one or more Presidents That an Attaint was brought in Banco Regis or in Communi Banco at Westminster in which Courts only Attaints by the Common-Law are Sueable for a false Verdict in London taken before the Mayor Aldermen and Sheriffs From these four Remarks I conclude nothing but leave the Determination of this important Affair to the Honourable Sages of our Law and pray That in this and in all other Businesses of Concernment that God the Great Judge of Heaven and Earth would guide and direct them FINIS Pag 2. lin 6. for subject read subvert p. 10. r. Sir John Robinson Knight and Baronet
AN ANSWER To the Seditious and Scandalous PAMPHLET ENTITULED The Tryal of W. Penn and W. Mead at the Sessions held at the Old Baily London the 1 3 4 5 of Sept. 1670. CONTAINED In FOUR SECTIONS SECT I. The Design of the Libellous Pamphlet discovered II. The Scandals against the then Lord Mayor Sir Thomas Bludworth and Sir John Hovel Recorder Answered III. The Justice and Honour of that Court Vindicated by a True and Impartial Relation of that whole TRYAL IV. The Fining of that Jury that gave two contrary Verdicts justified to prevent a Failer of Justice in LONDON Jude Verse 8. These filthy Dreamers defile the Flesh despise Dominions speak evil of Dignities Verse 19. These be they who separate themselves sensual having not the Spirit Written by S. S. a Friend to JUSTICE and Courts of JUSTICE LONDON Printed by W. G. 1671. SECT I. The Design of the Libellous Pamphlet discovered by way of Preface to the Impartial and Ingenious Reader SEmper ego Auditor tantum Nunquamrè reponam Can it be that a dumb Child can stand by and see a Traitor about to assassinate his Soveraign and not cry out Miles noli Regem ferire Do not kill the King Or can or ought I to be silent and hear a turbulent and inhumane sort of People called Qnakers in a printed Book by them falsely Entituled The Peoples ancient and just Liberties asserted in the Tryal of William Penn and William Mead at the Sessions held at the Old Baily in London the first third fourth fifth of September 1670. Which Book I have great reason to believe was composed by William Penn the half Quaker and therefore can give it no other name but The Second Part to his Blasphemous Treatise called The Sandy Foundations shaken for it 's no wonder that if he who could daringly Blaspheme the Holy Trinity in that Book should not blush to villifie and contemn the Kings Court and falsely scandalize and reproach the Kings Justices and revile all Methods of Law and Forms of Indictments calling them detestable Juggles and stiling this particular Indictment a Romance Indictment fol. 29. sect 4. and his Brother William Mead to the like purpose stiles this Indictment a bundle of stuff Lyes and Falshoods fol. 13. Penn's impudency carrying him still further to endevour in a popular way to subject the Fundamental Laws of the Land impudently asserting in his Preface to the said Book That the Jury were the proper Judges both of Law and Fact vid. fol. 3. And Penn being for his turbulency and impertinency commanded to be put into the Bail-dock exclaimed with a loud voice to the Jury This I leave upon your Consciences who are of the Jury and my sole Judges c. vid. fol. 12. Now Gentlemen of the long Robe look to your selves and your Westminster-Hall If these learned Reformers of Religion shall likewise Reform your Laws and Methods of Proceedings as doubtless they design it and make twelve Jury-men eleven of which it 's possible can neither write nor read to be the sole Judges both of Law and Fact farewel then to your great Acquisitions your Year books then will be out of date and an Ouster will be put to your Books of Entries These are the Beasts of Ephesus that the late Lord Mayor Recorder and Bench of Justices have been contending withall the Court asserting the Jury to be Judge of the Fact only and that it was the Courts Prerogative to judge the Law according to the old Maxim Ad questionem juris respondent Judices ad questionem facti respondent Juratores And doth not Magna Charta say in effect as much which they so much glory in for their own Ends although when it toucheth them in point of observing the Laws of the Holy Church and Gods Worship they will call it Magna Fartha or something worse Doth not the Great Charter made Anno 9. Hen. iij. Chap. 29 say That no Freeman shall be taken or imprisoned nor be disseized of his Freehold or Liberties or free Customs or be Out-lawed or Exiled or any other ways destroyed nor we shall not pass upon him nor condemn him but by lawful judgment of his Peers or by the Law of the Land This or is disjunctive or copulative if disjunctive then it must imply some other Judges besides the Jury of twelve Men which are called the Peers or Equals if it be taken copulative or for and it still implies another Jurisdiction besides that of the Peers and per Legem terrae in that place cannot as this Novice of the Law doth infinuate be understood to be the Tryal of the Jury only but to be the Tryal both of Judge and Jury according to that Maxim Ex facto jus oritur Therefore the Form of Entry of the Judgment is Ideo consider at umi est per curiam Vid. Coke's Institutes lib. 2. cap. 12. sect 234. fol. 154 155. If the Law be as this Youngster would have it viz. that the Jury is both Judge of Law and Fact and that the Kings Justices cannot Fine for Contempt of the Court nor correct the Corruption or Misdemeanor of Jury-men nor inform their Ignorance nor rectifie their Mistakes the Justices in Oyer and Terminer have that Name for nothing and the Justices will be but Cyphers and sit there only to be derided and villified by every saucy and impertinent Fellow Thus you see Gentlemen if these things take place they will not only do as their Brethren the late Reformers of Law and Religion turn the Laws into English but turn the Judges and Juries also out of Westminster-Hall and set up a High Court of Justice of Saints and this John of Leyden together with his Brethren the Quakers who esteem themselves the Saints shall judge the World Which God for his Name Sake prevent Sic precatur seriò S. S. SECT II. The Libellous Scandal against the then Lord Mayor Sr. Thomas Bludworth Sr. John Hovel Recorder Answered and Refelled Jude 9. Yet Michael the Archangel when contending with the Devil he disputed about the Body of Moses durst not bring against him a railing Accusation but said The Lord rebuke thee Verse 10. But these speak evil of those things which they know not THese People called Quakers if they are to be believed will tell you they have this Angelical Spirit the Meekness of Moses the Patience of Job and all other Graces But the contrary appears fol. 57. of William Penn's Book Vide this Passage But above all Dissenters had little reason to have expected that Bourish Fierceness from the Mayor of London when they consider his eager prosecution of the Kings Party under Cromwel's Government as thinking he could never give too great a Testimony of his Loyalty to that new Instrument which makes the old Saying true That one Renegado is worse than three Turks A high Charge against Sr. Samuel Starling then Lord Mayor if true Cujus contrarium verum and therefore a Railing Acusation And that Light which
no ways justifie the Papists in preventing the first Reformation by the Hellish Inquisition If these Libellers had but the least grain of Charity they would have construed the words cum grano salis in initiori sensu as the Rule of Charity directs all words to be construed and they will admit of no other construction but this viz. That if the Papists be so politick and prudent by their Inquisition to preserve and maintain their false Religion surely it will be the Protestants prudence to find ways for the preservation of their true Religion Quod Faxit DEVS SECT III. The Justice and Honour of that Court Vindicated by a True and Impartial Relation of that whole Tryal THe Trial of William Penn and William Mead at the Old-Baylie London the 1 st 3 d. 4 th 5 th of September 1670. being made publick by a Libellers hand tending to the Dishonour of Justice and Courts of Justice with divers Scandalous and Malicious Observations thereupon I thought good being an Eye and Ear witness of all that passed to give a True and Impartial Relation of that Affair whereby the Justice Candor and Integrity of that Court towards the Prisoners and the Scornful Abusive and Unbecoming Behaviour of the Prisoners towards the Court may be made manifest to the world There being present Sr. Sam Starling Kt. then L. Mayor Sr. John Robinson Kt. Sr. Tho. Bludworth Kt. and Ald. Sr. William Peake Kt. and Ald. Sr. John Hovel Kt. and Recorder Sr. R. Ford Kt. Ald. Sr. J. Shelden Kt Ald. Sheriffs Sr. John Smith Sr. James Edwards I thought good to set down the Names of those Justices who were present at that Trial Honoris causâ with all their Additions and Titles that so the World may know that the City of London wants not Worthy Patriots who dare call to Accompt these vile railing Rabshekah's of this Age who speak evil of our Religion and our God and the rather because the Libeller hath in a disgraceful way prefix'd their Names without any Additions to his Narrative thereby intending to make them odioas to the People Cryer O Yes Thomas â—â—â—â— _____ Bushel John Hammond Charles Milson Gregory Walklet John Brightman Will. Plumsted Henry Henley Thomas Damask Henry Michel William Lever John Bail The Form of the Oath You shall well and truly try and true Deliverance make betwixt our Soveraign Lord the King and the Prisoners at the Bar according to your Evidence So help you God The Indictment That William Penn Gent. and William Mead late of London Linnen-Draper with divers other persons to the Jurors unknown to the number of three hundred the 14th day of August in the 22th Year of the King about Eleven of the Clock in the Forenoon the same day with Force and Arms c. in the Parish of S. Bennet Grace-Church in Bridge-Ward London in the Street called Grace-Church-Street unlawfully and tumultuously did assemble and congregate themselves together to the disturbance of the Peace of our said Lord the King and the aforesaid William Penn and William Mead together with other persons to the Jurors aforesaid unknown then and there so assembled and congregated together the aforesaid William Penn by agreement between him and William Mead before made and by abetment of the aforelaid William Mead then and there in the open street did take upon himself to preach and speak and then and there did preach and speak unto the aforesaid William Mead and other persons there in the street aforesaid being assembled and congregated together by reason whereof a great concourse and tumult of people in the street aforesaid then and there along time did remain and continue in contempt of our said Lord the King and of His Law to the great disturbance of His Peace to the great terror and disturbance of many of His Liege People and Subjects to the ill example of all others in the like Case Offenders and against the Peace of our said Lord the King His Crown and Dignity What say you William Penn and William Mead are you Guilty as you stand Indicted in manner and form as aforesaid or not Guilty Penn. It is impossible that we should be able to remember the Indictment verbatim and therefore we desire a Copy of it as is customary in the like occasions Rec. You must first plead to the Indictment before you can have a Copy of it Penn. I am unacquainted with the formality of the Law and therefore before I shall answer directly I request two things of the Court first that no advantage may be taken against me nor I deprived of any benefit which I might otherwise have received secondly that you will promise me a fair Hearing and liberty of making my Defence and that the Court would be my Council Court No advantage shall be taken against you you shall have liberty you shall be heard this is an Indictment for Trespass therefore you may have what Council you please Penn. Then I plead not Guilty in manner and form Clerk What saist thou William Mead art thou Guilty in manner and form as thou stand'st Indicted or not Guilty Mead. I shall desire the same liberty as is promised William Penn. Court You shall have it Mead Then I plead not Guilty in manner and form The Third of September 1670. the Court sate Cryer Oyes c. Cler. Bring William Penn and William Mead before the Barr. Mayor Sirrah Who bid you put off their Hats Give them their Hats again Nota. The Prisoners in stubborn manner refusing to take their Hats they were put on again by the same person before they came into the Court. Nota. The Court observing that the Prisoners standing on the Leads behind the Barr with their Hats on facing the Court all that day as it were daring the Court to a Tryal so that the Court and all the Spectators looked upon them as offering a great Affront to the Honour of His Majesties Court the Justices were resolved to chastise them for the same The Prisoners standing before the Barr with their Hats on the Recorder said Rec. Do you know where you are Penn. Yes Rec. Do you not know it is the Kings Court Penn. I know it to be a Court and I suppose it to be the Kings Court. Rec. Do you not know there is respect due to the Court Penn. I do so Rec. Why do you not pull off your Hat then Penn. Because I do not believe that to be any respect Rec. Well the Court sets Forty Marks a piece on your Heads as a Fine for your Contempt of the Court. Penn I desire it might be observed that we came into the Court with our Hats off that is taken off and if they have been put on since it was by Order from the Bench and therefore not we but the Bench ought to be Fined Nota. This is a great Falshood for their Hats were put on behind the Barr before they came into the Court. Mead. I have a Question to ask