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 fifth and last 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 4: September 5th 1670.OBSERV. 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.
CRYER. Oyez, etc. Silence in the Court, upon pain of Imprisonment.
CLERK. 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 Michell, John Brightman, Charles Milson, Gregory Walklet, John Baily, William Plumstead. Are you all agreed to your verdict?JURY. Yes.
CLERK. Who shall speak for you?
JURY. Our Foreman
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?
FOREMAN. Here is our Verdict in Writing, and our Hands subscribed.
OBSERVER. 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.
CLERK. How say you? Is William Penn Guilty, &c., or Not Guilty?
FOREMAN. Not guilty.
CLERK. How say you? Is William Mead Guilty, &c., or Not Guilty?
FOREMAN. Not guilty.
CLERK. 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.
OBSERVER. The Bench being unsatisfied with the Verdict, commanded that every Person should distinctly answer to their Names, and give in their Verdict, which they unanimously did, in saying, Not Guilty, to the great Satisfaction of the Assembly.
RECORDER. 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 forty Mark a Man; and Imprisonment till paid. At which Penn stept up towards the Bench, and said:
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 English-Man should be Fined or Amerced, but by the Judgment of his Peers or Jury; since it expressly contradicts the fourteenth and twenty-ninth Chap. of the great Charter of England, which say, No Free-Man ought to be amerced, but by the Oath of good and Lawful Men of the Vicinage.
RECORDER. Take him away, Take him away, take him out of the Court.
PENN. I can never urge the Fundamental Laws of England, but you cry, Take him away, take him away. But it is no wonder, Since the Spanish Inquisition hath so great a place in the Recorder's Heart. God Almighty, who is just, will judge you all for these things.
OBSERVER. They haled the Prisoners into the Bale-dock, and from thence sent them to Newgate, for Non-payment of their Fines; and so were their Jury.
L'ENVOIE So ended the "Tryal." The contumacious jurors did not long remain in duress. The pertinacious Bushel, being a man of substance, took steps to legally rescue himself and fellows, and soon succeeded. The affair had an important after echo at the trial in New York, of John Peter Zenger, the Palatine Printer, in 1735, for libelling Governor William Cosby, by telling the truth about his infringement of popular liberty, when the attempted forcing of the Penn jury was powerfully employed by Andrew Hamilton, attorney for the defense, to curb the efforts of Mr. Justice De Lancey to coerce the twelve. In his remarkable address an address that solidified the foundation for liberty of the press and free speech on this continent and was a worthy preface to the Declaration of Independence drawn some forty years later Hamilton said, concerning this "Tryal":
"Mr. Penn and Mead being Quakers, and having met in a peaceable Manner, after being shut out of their Meeting House, preached in Grace Church Street, in London, to the People of their own Persuasion, and for this they were indicted; and it was said, That they with other Persons, to the Number of 300. unlawfully and tumultuously assembled, to the Disturbance of the Peace, &c. To which they pleaded Not Guilty. And the Petit Jury being sworn to try the Issue between the King and the Prisoners, that is, whether they were Guilty, according to the Form of the Indictment? Here there was no Dispute but they were assembled together, to the Number mentioned in the Indictment; But Whether that Meeting together was riotously, tumultuously, and to the Disturbance of the Peace? was the Question. And the Court told the Jury it was, and ordered the Jury to find it so; For (said the Court) the Meeting was the Matter of Fact, and that is confessed, and we tell you it is unlawful, for it is against the Statute; and the Meeting being unlawful, it follows of Course that it was tumultuous, and to the Disturbance of the Peace. But the Jury did not think fit to take the Court's Word for it, for they could neither find Riot, Tumult, or any Thing tending to the Breach of the Peace committed at that Meeting; and they acquitted Mr. Penn and Mead. In doing of which they took upon them to judge both the Law and the Fact, at which the Court (being themselves true Cortiers) were so much offended, that they fined the Jury 40 Marks a piece, and committed them till paid. But Mr. Bushel, who valued the Right of a Juryman and the Liberty of his Country more than his own, refused to pay the Fine, and was resolved (tho' at a great Expence and trouble too) to bring, and did bring, his Habeas Corpus, to be relieved from his Fine and Imprisonment, and he was released accordingly; and this being the Judgment in his Case, it is established for Law, That the Judges, how great soever they be, have no Right to Fine, imprison, or punish a Jury, for not finding a Verdict according to the Direction of the Court. And this I hope is sufficient to prove, That Jurymen are to see with their own Eyes, to hear with their own Ears, and to make use of their own Consciences and the Understandings, in judging of the Lives, Liberties or Estates of their Fellow Subjects." CONCLUDED
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