The Tryal of William Penn & William Mead for Causing a Tumult Part 5

MAY. Stop his Mouth; Jaylor, bring Fetters, and stake him to the Ground.

PEN. 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 steadfastly refusing it (saying they could give no other Verdict than what was already given) the Recorder in great Pa.s.sion 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:

REC. Gentlemen, we shall not be at this trade always with you; you will find the next Sessions of Parliament there will be a Law made, 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.

JUR. We ought not to be return'd, 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 charted about the City, as in Edward the Third's time.

FORE-M. 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.

MAY. Take them up.

OFFIC. My Lord, they will not go up.

OBSER. The Mayor spoke to the Sheriff, and he came off of 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 to Morrow Morning, at seven of the 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 Mich.e.l.l, John Brightman, Charles Milson, Gregory Walklet, John Baily, William Plumstead._ Are you all agreed to your verdict?

JUR. Yes.

CLER. Who shall speak for you?

JUR. Our Fore-man.

CLER. 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-MAN. 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.

FORE-MAN. That is our Verdict; we have subscribed to it.

CLER. How say you? Is William Penn Guilty, &c., or Not Guilty?

FORE-MAN. Not guilty.

CLER. How say you? Is William Mead Guilty, &c., or Not Guilty?

FORE-MAN. 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?

JUR. Yes, we do so.

OBSER. 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 a.s.sembly.

REC. I am sorry, Gentlemen, you have followed your own Judgments and Opinions, rather than the good and wholsome Advice, which was given you; G.o.d 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:

PEN. I demand my Liberty, being freed by the Jury.

MAY. No, you are in for your Fines.

PEN. Fines, for what?

MAY. For contempt of the Court.

PEN. 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.

REC. _Take him away, Take him away, take him out of the Court._

PEN. 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_. G.o.d Almighty, who is just, will judge you all for these things.

OBSER. 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 Perswasion, and for this they were indicted; and it was said, _That they with other Persons, to the Number of 300. unlawfully and tumultuously a.s.sembled, to the Disturbance of the Peace, &c_. To which they pleaded _Not Guilty_. And the Pet.i.t 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 a.s.sembled 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."