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with other persons to the jurors aforesaid unknown, then and there so assembled and congregated together; the aforesaid William Fenn, by agreeinent between him and William Mead before made, and by abetment of the aforesaid 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, a long time did remain and continue, in contempt of the 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 the 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 on 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.
Court. No advantage shall be taken against you : you shall have liberty; you shall be heard.
Penn. Then I plead not guilty, in manner and form.
Cle. What sayest thou, William Mead? Art thou guilty in manner and form, as thou standest indicted, or not guilty ?
Mead. I shall desire the same liberty as is promised to William Penn.
Court. You shall have it.
The Court adjourned until the afternoon. Cry. Oyes, &c. Cle. Bring William Penn and William Mead to the bar. Observ. The said prisoners were brought, but were set aside, and other business prosecuted. Where we cannot chiuse but observe, that it was the constant and unkind practice of the court to the prisoners, to make them wait upon the trials of felons and murderers, thereby designing, in all probability, both to affront and tire them. After five hours attendance, the court broke up, and adjourned to the third instant.
The third of September 1670, the Court sat. Cry. Oyes, &c.
Mayor. Sirrah, Who bid you put off their bats ? Put on their hats again. Obser. Whereupon one of the officers putting the pri
soners hats upon their heads (pursuant to the order of
the court) brought them to the bar.
Penn. I know it to be a court, and I suppose it to be the king's court.
Rec. Do you know there is respect due to the court?
Rec. Well, the court sets forty marks a-piece upon your heads, as a fine, for your contempt of the court.
Penn. I desire it may 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, should be fined.
Mead. I have a question to ask the recorder : Am I fined also ?
Rec. Yes. Mead. I desire the jury, and all people, to take notice of this injustice of the recorder, who spake not to me to pull off my hat, and yet hath be put a fine upon my head, 0! fear the Lord, and dread his power, and yield to the guidance of his Holy Spirit; for he is not far from every one
The Jury sworn again. Obser. J. Robinson, lieutenant of the Tower, disinge
nuously objected against Edward Bushel, as if he had not kissed the book, and therefore would have him sworn again; though indeed it was on purpose to have made use of his tenderness of conscience, in avoiding reiterated oaths, to have put him by his being a juryman,
apprehending him to be a person not fit to answer their arbitrary ends. The clerk read the indictment as aforesaid. Cle. Call James Cook into the court, give him his oath.
Cle. James Cook, lay your hand upon the book; “The evidence you shall give to the court, betwixt our sovereign the king, and the prisoners at the bar, shall be the truth, and the whole truth, and nothing but the truth. So help you God,' &c.
Cook. I was sent for from the Exchange, to go and disa perse 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 endeavoured to make way to take him, but I could not get to him for the croud of people. Upon which Captain Mead came to me, about the kennel of the street, 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?
Read being sworn, was asked, What do you know concerning the prisoners at the bar ?
Read. My lord, I went to Gracious-street, where I found a great croud of people, and I heard Mr. Penn preach to them; and I saw Captain Mead speaking to Lieutenant Cook, but what he said I could not 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.
Jury, take notice, he swears now a clean contrary thing to what he swore before the mayor, when we were committed : for now he'swears that he saw me in Gracious. street, and yet swore before the mayor, when I was committed, that he did not see me there. I appeal to the mayor himself if this be not true? (But no answer was given.)
Court. What number do you think might be there?
Penn. Did he speak to me, or let me know he was there? For I am very sure I never saw him.
Cle. Crier, call - into the court.
My lord, I saw a great number of people, and Mr. Penn 1 suppose was speaking. I saw him make a mo
tion with his hands, and heard some noise, but could not understand what he said. But for Captain Mead, I did not see him there.
Rec. What say you, Mr. Mead? Were you there?
Mead. It is a maxim in your own law, nemo tenetur accusare seipsum ; which if it be not true Latin, I am sure that it is 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 unto a judge, that ought to be counsel for the prisoner at the bar ?
Rec. 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.
Cry. Oyes! All manner of persons keep silence, upon pain of imprisonment.-Silence in the court.
Penn. We confess ourselves to be so far from recanting, or declining to vindicate the assembling of ourselves, 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.
Brown. You are not here for worshipping God, but for breaking the law. You do yourselves a great deal of wrong in going on in that discourse.
Penn. I affirm I have broken no law, nor am I guilty of the indictment that is laid to my charge. And to the end the bench, the jury, and myself, with those that hear us, may have a more direct understanding of this procedure, Í desire you would let me know by what law it is you prosecute me, and upon what law you ground my indictment.
Rec. Upon the common law.
Rec. You must not think that I am able to run up so many years, and over so many adjudged cases, which we call common law, to answer your curiosity.
Penn. This answer I am sure is very short of my question; for if it be common, it should not be so hard to produce.
Rec. Sir, will you plead to your indictment ?
Penn. Shall I plead to an indictment that hath no foundation in law ? If it contain that law you say I have broken, why should you decline to produce that law, since it will be impossible for the jury to determine, or agree to bring in the verdict, who have not the law produced, by which they should measure the truth of this indictment, and the guilt, or contrary, of my fact,
Rec. You are saucy, fellow. Speak to the indictment.
Penn. I say it is my place to speak to matter of law. I am arraigned a prisoner; my liberty, which is next to life itself, 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. I say again, unless you shew me, and the people, the law you ground your indictment upon, I shall take it for granted your proceedings are merely arbitrary. · Obser. At this time several upon the bench urged hard
upon the prisoner to bear him down. Rec. The question is, Whether you are guilty of this indictment?
Penn. The question is not whether I am guilty of this indictment, but whether this indictment be legal. It is too general and imperfect an answer, to say it is the common Jaw, unless we both knew where, and what it is. For where there is no law, there is no transgression; and that law which is not in being, is so far from being common, that it is no law at all.
Rec. You are an impertinent fellow. Will you teach the court what law is ? 'It is lex non scripta ; that which many have studied thirty or forty years to know; and would you have me tell you in a moment?
Penn. Certainly, if the common law be so hard to be understood, it is far from being very common. But if the Lord Coke, in his . Institutes,' be of any consideration, he
That common law is common right; and that common right is the great charter privileges, confirmed 9 Hen. 3. 29. 25 Edw. 1. l. 2 Edw. 3. 8.' Coke Inst. 2,
Rec. Sir, you are a troublesome fellow, and it is not for the honour of the court to suffer you to go on.
Penn. I have asked but one question, and you have not answered me; though the rights and privileges of every Englishman be concerned in it.
Rec. If I should suffer you to ask questions till to-morrow morning, you would be never the wiser.
Penn. That is according as the answers are.
Penn. 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 the 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