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ID	Title	Author	Corrected Date of Publication (TCP Date of Publication)	STC	Words	Pages
A61336	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 / written by S.S. ...	Starling, Samuel, Sir, d. 1674.	1671 (1671)	Wing S5296; ESTC R1083	20,075	41

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

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

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 ꝑ William Tay vers̄ Henry Tust sur faux serem̄t in Bill sur lestatute de vicount ꝓ ꝓ render argent de diūse 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 ꝓle 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 petic̄on ꝓ 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 aūoit le moyety recoūed vncore ceo ne fuit le Roy party Nient pluis in Trn̄s ou Forcible Entry on autres actions ou le Roy a●a fine in queux Cases gist attaint assets bien ꝓ que c. Et l'attaint fuit dd et remaine ꝑ default des Iurors Br. Attaint 127. Nota diciturque P. Informac̄on fait ꝑ le Roy que pass sur issue trie le Roy ne l'informer n a●●a attaint car l'informer n'est plenem̄t party et quant le Defendt ad respond le Attorney le Roy reply ꝑle Roy et nul plus mention est puis del Informer ideo ne l'un ne l'auter n'aūa attaint 4 M. 1. Attaint 130. S● 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 fauxem̄t attaint gift ꝑ le Defendt Car le Roy nest merement party Car le party poit discontinue ou release sans le Roy nient obstant que le Roy recoūa 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-Law since that Statute trit mihi magnus Apoll● 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