On August 14th 1670,the Quaker William Penn, founder of Pennsylvania, preached to a large crowd on a London Street. The peace was disturbed and Penn, with his co-religionist William Mead, was arrested. The two men stood trial at the Old Bailey in the first days of September. They conducted their own defence and Penn recorded the trial in great detail. His record was preserved in the State Trials which were collected in 1719. In this series we will present Penn's account in its entirety. In it Penn is the "Observer" who makes frequent comments throughout and sums up the conclusion of the Trial. This trial was, in effect, the first on record to explore the limits of Free Speech a subject that is still a matter of concern in the 21st. Century. Here is the third instalment.
THE TRYAL of WILLIAM PENN and WILLIAM MEAD,
at the Sessions held at the Old Baily in London, the 1st, 3rd, 4th, and 5th of September, 1670.
Done by themselves.
Day 2: The third of September 1670, the Court sat.
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. 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 meerly Arbitrary.
REC. The Question is, whether you are guilty of this Indictment?
PEN. 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 Law, unless we knew both 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's Lex non scripta, that which many have studied thirty or forty Years to know, and would you have me to tell you in a Moment?
PEN. Certainly, if the Common Law be so hard to be understood, it's far from being very Common; but if the Lord Cook, in his Institutes, be of any Consideration, he tells us, That Common Law is Common Right, and that Common Right is the Great Charter-Privileges: Confirmed 9 Hen. 3. 29. 25 Edw. I. i. 2 Edw. 3. 8. Cook Instit. 2 p. 56.
REC. Sir, you are a troublesome Fellow, and it is not for the Honour of the Court to suffer you to go on.
PEN. I have asked but one Question, and you have not answer'd me; tho' 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.
PEN. That is according as the Answers are.
REC. Sir, we must not stand to hear you talk all Night.
PEN. I design no Affront to the Court, but to be heard in my just Plea: And I must plainly tell you, that if you will deny me Oyer of that Law, which you suggest I have broken, you do at once deny me an acknowledged Right, and evidence to the whole World your Resolution to sacrifice the Privileges of Englishmen to your sinister and Arbitrary Designs.
REC. Take him away. My Lord, if you take not some Course with this pestilent Fellow, to stop his Mouth, we shall not be able to do any thing to Night.
MAYOR. Take him away, take him away, turn him into the Bale-dock.
PEN. These are but so many vain Exclamations; is this Justice or true Judgment? Must I therefore be taken away because I plead for the Fundamental Laws of England? However, this I leave upon your Consciences, who are of the Jury (and my sole Judges) that if these Ancient Fundamental Laws, which relate to Liberty and Property, and (are not limited to particular Persuasions in Matters of Religion) must not be indispensibly maintained and observed. Who can say he hath Right to the Coat upon his Back? Certainly our Liberties are openly to be invaded, our Wives to be ravished, our Children slaved, our Families ruined, and our Estates led away in Triumph, by every sturdy Beggar and malicious Informer, as their Trophies, but our (pretended) Forfeits for Conscience sake. The Lord of Heaven and Earth will be Judge between us in this Matter.
REC. Be silent there.
PEN. I am not to be silent in a Case wherein I am so much concerned, and not only my self, but many ten thousand Families besides.
OBSERV. They having rudely haled him into the Bale-dock, William Mead they left in Court, who spake as followeth.
MEAD. You Men of the Jury, here I do now stand, to answer to an Indictment against me, which is a Bundle of Stuff, full of Lyes and Falshoods; for therein I am accused, that I met Vi & armis, illicite & tumultuose: Time was, when I had Freedom to use a carnal Weapon, and then I thought I feared no Man; but now I fear the Living God, and dare not make use thereof, nor hurt any Man; nor do I know I demeaned my self as a tumultuous Person: I say, I am a peaceable Man, therefore it is a very proper Question what William Penn demanded in this Case, An Oyer of the Law, in which our Indictment is grounded.
REC. I have made Answer to that already.
MEAD. Turning his Face to the Jury, saith, you Men of the Jury, who are my Judges, if the Recorder will not tell you what makes a Riot, a Rout, or an unlawful Assembly, Cook, he that once they called the Lord Cook, tells us what makes a Riot, a Rout, and an unlawful Assembly--A Riot is when three, or more, are met together to beat a Man, or to enter forcibly into another Man's Land, to cut down his Grass, his Wood, or break down his Pales.
OBSERV. Here the Recorder interrupted him, and said, I thank, you Sir, that you will tell me what the Law is, scornfully pulling off his Hat.
MEAD. Thou mayst put on thy Hat, I have never a Free for thee now.
BROWN. He talks at random, one while an Independent, another while some other Religion, and now a Quaker, and next a Papist.
MEAD. Turpe est doctori ***** culpa redarguit ad ipsum.
MAYOR. You deserve to have your Tongue cut out.
REC. If you discourse on this Manner, I shall take Occasion against you.
MEAD. Thou didst promise me, I should have fair Liberty to be heard; why may I not have the Privilege of an Englishman? I am an Englishman, and you might be ashamed of this dealing.
REC. I look upon you to be an Enemy to the Laws of England, which ought to be observed and kept, nor are you worthy of such Privileges, as others have.
MEAD. The Lord is Judge between me and thee in this Matter.
OBSERV. Upon which they took him away into the Bale-dock, and the Recorder proceeded to give the Jury their Charge, as followeth.
REC. You have heard what the Indictment is. It is for preaching to the People, and drawing a tumultuous Company after them, and Mr. Penn was speaking; if they should not be disturbed, you see they will go on; there are three or four Witnesses that have proved this, that he did preach there; that Mr. Mead did allow of it; after this, you have heard by substantial Witnesses what is said against them: Now we are upon the Matter of Fact, which you are to keep to, and observe, as what hath been fully sworn, at your Peril.
OBSERV. The Prisoners were put out of the Court into the Bale-dock, and the Charge given to the Jury in their Absence, at which W. P. with a very raised Voice, it being a considerable distance from the Bench, spake.
PEN. I appeal to the Jury, who are my Judges, and this great Assembly, whether the Proceedings of the Court are not most Arbitrary, and void of all Law, in offering to give the Jury their Charge in the Absence of the Prisoners; I say, it is directly opposite to, and destructive of, the undoubted Right of every English Prisoner, as Cook in the 2 Instit. 29. on the Chap. of Magna Charta, speaks.
OBSERV. The Recorder being thus unexpectedly lash'd for his extrajudicial Procedure, said, with an inraged Smile.
REC. Why, ye are present, you do hear, do you not?
PEN. No thanks to the Court, that commanded me into the Bale-dock; and you of the Jury take notice, that I have not been heard, neither can you legally depart the Court, before I have been fully heard, having at least ten or twelve material Points to offer, in order to invalid their Indictment.
REC. Pull that Fellow down, pull him down.
MEAD. Are these according to the Rights and Privileges of Englishmen, that we should not be heard, but turned into the Bale-dock, for making our Defence, and the Jury to have their Charge given them in our Absence; I say these are barbarous and unjust Proceedings.
REC. Take them away into the Hole: To hear them talk all Night, as they would, that I think doth not become the Honour of the Court, and I think you (i. e. the Jury) your selves would be tired out, and not have Patience to hear them.
TO BE CONTINUED
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