the Kings Court and falsly Reproach the Kings Justices and revile all Methods of Law calling Indictments detestable Juggles and his a Romance Indictment and W. Mead his a Bundle of Stuff Penn designing in a popular way to subject the Laws making the Jury Judges both of Law and Fact If I had blusht it must either have been from mine own Guilt or by way of reflection from the Bench but as I was wholy innocent of that Crime which could have made me conscious so was there not Modesty enough amongst some of the Bench to blush at their Irregularities I detest that Aspersion of vilifying Law or reproaching the Kings Justices since the greatest Crime some observed against me whilst at the Bar was my frequent Demands of Right by those very Fundamental Laws I am charged to have contemned These are but meer Phrases of Abuse ready at every mans hand for his interest Indictments I Esteem not Juggles nor do I believe the Author intended so but that way of crouding most unnecessary and untrue Allegations under the pretence of Form of Law contrary to all Reason is no less This is explained by him and his own sence fully vindicated He therefore understood what he said when he compared the falsity of our Indictment to that of a Romance which however methodical yet is but meer Fancy still For those things being absent that render an Indictment true it will follow that such an Indictment is altogether incongruous â—â—d inapplicable It is an hard Case that men should so Nickname things as to call an honest Confidence Impudence and my asserting of the Supremacy of Fundamental Laws against their new Inchrâ—achments a subverting of them I Rejoyce to think that many were there present whose relation of that Transaction has done me the justice of a vindication and given our Tryal the Credit which it is utterly impossible for the endeavours of S.S. and his malicious Cabal ever to diminish or traduce He makes it a Capital Crime to assert the Jury Judges of Law and Fact but poorly shifts off those Arguments aptly used by the Author of the Tryal in defâ—nce of his position for farther satisfaction I referr the Reader to the Fourth Part of this Discourse He says I was commanded to the Bale-Dock for Turbulency and Impertinency I confess if I had been as Guilty as I was innocent of being so offensive they had been very incompetent Judges whose own passion rendred them so much what they say of me that many Spectators questioned If theâ— were themselves They that read the Tryal may quickly inform themselves of my kind of Impertenency and with the same trouble of their Billingsgate Rhetorick in Phrases so scurrilous that never did Men subject themselves to a more deserved Censure of want of common Civility then at our Tryal But the man breaks forth into an extatical Caution to those of the Long Robe lest we should assassinate their Persons at least besiege and rifle their Westminster Hall His words are these Now Gentlemen of the Long Robe look to your selves and your Westminster Hall And why Because that Juries are affirmed to be Judges of Law and Fact as if that were an overthrow to the Law that the most learned and honest of the Robe made an hearty Profession of in the sence urged But I appeal to those of the Long Robe as he stiles them whether such Arbitrary Proceedings as over-ruling all Pleas Verdicts Prisoners and Juries at the rate of the Old-Baily 1st 3d 4th 5th of September 1670. with their severe Rebukes and harsh Menaces be not more apparently destructive of the Fundamental Laws in the free course of them and practice of Lawyers then the Authors Assertion in his Discourse of the Peoples Antient and Just Liberties c. He urges this Caution to the Lawyers with no small pretence to Reason and Rhetorick For says he If that these learned Reformers of Religion shall likewise reform your Laws and Methods of Proceedings as doubtless they design it farewel then to your great Acquisitions c. But I must tell him that as he is an incompetent Judge of Religion that practices so little of any so I publish a plain Challenge to him and the old Man within the Curtain the Oracle of his Law Gibberish to produce an avow'd Instance by any Lawyer of the Irregularies and Arbitrary Actions they vainly attempt to defend And whether our well meant Plea for English Priviledge be most destructive of great Acquisitions or their unhinging thâ— well hung Laws of England to turn all Tryals upon the sole pin of Will and Power let the very Lawyer judge I affirm such give the justest ground of bidding farewell to all great Acquisitions that are so ready to welcome INQVISITIONS â—e ventures to urge the Great Charter and to give an Exposition as ridiculous as the other is fictitious his kindness for the Law being to kill it in palliating his real fear and abhorrence of all good Laws with his pretended respect for them But of this I will say little leaving it to an whole part by it self and proceed to consider the rest of his Wild Reflections His comparison of us to John of Leyden is ignorant and malicious Ignorant because he seems to know no better our Principles that utterly abhor to promote Religion by Blood Malicious because he slanders us without the least desert and seems not so much to heed the Truth as odium of his Comparison And but that it is a vulgar Trick to put the Woolfs Skin upon the Sheep and the Sheeps Skin upon thâ— Woolf I should enlarge upon his ugly Epithites Part II. S.S. his Answer to the pretended Calumnies of the TRYAL Considered HAving given my self a loose shake of the Calumnies of his first Section saving that part which concerns the power of Juries to be considered by it self I shall descend to examin his second if possibly I may find more of Truth Sence and Civility He pretâ—nds to so much Scripture and which is worse applies it to his own shame as to front his second Section with the 9th and 10th Verses of the Epistle of Jude Ver. 9. Yet Michael the Arch-Angel 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 Ver. 10. But these speak evil of those things which they know not Upon this Text he preaches thus pag. 4. These People called Quakers if they are to be believed will tell they have this Angellical Spirit the Meekness of Moses the Patience of Job and all other Graces but the contrary appears fol. 57. of W. Penns Book vide this Passage But above all Dissenters had little reason to have expected that boarishâ— sierceness from the Mayor of London when they consider hâ—s eager prosecution of the Kings Party under Cromwels Government as-thinking he could never give too great a Testimony of his Loyalty to that new Instrument which makes
And Reason will with ease reconcile wherefore the Law has not prescribed nor directed a Punishment for Jurors who give a Verdict according to their Consciences though contrary to the sence of a Court or Bench of Iustices in Causes where the King is Party as for Fellony Trespass c. viz. As our English Government is now stablished Potestas Regia est facere justitiam It's regal power to do Iustice And therefore all Indictments are prosecuted in the name of the King although the Fellony Trespass c. was committed upon the People who really received the Tort and Wrong yet because the King has undertaken for the Safety Defence and Protection of his Subjects the Trespass c. is said to be done to him Yet Experience and Reason tells us that the People of England are not therefore the less interested in nor will be the less careful of the Security of their Persons and Estates but do and will use their uttermost endeavour to defend the first from Violence preserve the second from Ruin So 1st the Boni Legales Homines or Jurors impannelled to do Iustice upon such Fellons c. being Free-born English-men and as neerly interested and concerned in the Punishment of publick Offendors as any who are said to Prosecute And 2dly The Law presuming they would be no more Treacherous to their own Peace and Safety then the King faithful to preserve them thought good to lay no other Obligation or Engagement upon Jurors in such Cases but the consideration of their own Weal Peace and Safety which many hundred years has by experience been found sufficient Till Justices on the Benches and Seats of Judicature turned Informers and Prosecutors and instead of not knowing persons in Judgment appeared contrary to their Oaths as Counsel for the King and Prosecutors and Executioners upon the Prisoners This I shall take the Liberty to Remark upon S.S. the Writer of that Scandalous Libel that however he would recommend himself to the King and Country as a Man of Reputation and Truth or at least to the deserving the estimation of Learning and Ingenuity this Work of his has given them an opertunity to take other measures of his Deserts who has in this one Section of his Libel not only manifested meer Falshood in his Charge but also Ignorance in his Proofs First His Falshood appears in calumniating the Jurors with meer Untruths and that by his own shewing Secondly His Ignorance in that he has not in the least colourably justified his Assertions or those Practices of his Patrons whom he appears for against the Jurors Yea I may say that his Folly has so accompanied his Knavery that he needs no other Character then his own Work in Print And whether he has Reason to assume that Title he takes to himself in the Front of his Piece viz. To be a Friend to Justice and Courts of Justice I submit to those of the Long-Robe he allarums to look to themselves and to the juditious Reader that will weigh his Discouse For my own part I am not in the least jealous that he is any such Person But if this Author would favour us with the knowledge of his name then Justice and its Courts might express their Gratitude for his seasonable Vindication of them and the Mayor Recorder's c. Candor and Integrity in their juditial Proceedings at the Old-Baily against the Jury and Prisoners Less then this I could not say by reason of those false Aspertions that this Libeller has cast upon my Friends the Jurors to enlarge I shall forbear inasmuch as the Author has closed his Discourse with pretence to leave the important affair to the Judges determination whose Judgments I desire may and I hope will be measured by the streight Metwand of the fundamental Laws of England and not by the crooked Line of Discretion for say the wisest of Men and noblest of Princes Qui derelinqunt legem laudant improbos at qui observant legem miscent praelia cum illis I had no other end in this short Discouse but to vindicate Truth and Justice from Falshood and Violence so my earnest Zeal is that the first may ever stand over the heads of their Opposers and Oppressors Newgate Prison in London the 12th Moneth 1670. T. Rudyard Postscript TO Answer the Libellers Challenge and defend the Author of the Tryal c. in reference to S.S.S. it may not be impertinently observ'd that if he will please to enquire of one John Barnes of Hornsey whether the late Mayor was not a Commissioner for setling the late Powers Militia and so brisk and sharp a Reflecter upon those that went under the notion of Cavaliers above the rest of the Committee as to incur the rebuke of his Brother-Commissioners we hear that he may receive very ample satisfaction if it may be any to be found in a mistake of what he so confidently ventur'd to assert Nor is it less worthy of notice that upon enquiry made of Dr Whitchcock he could not but acknowledge that S. Sterling was so far from deserting the University for want of conformity to the Scotish Covenant that it never was tender'd to any of that Colledge Which is not remarkt out of Prejudice to the Mayor but love to the Truth and a desire to manifest his libellous Apollogist who rather then his defensive Flatteries should fail his Diana or his injust Slanders miss us resolves to break through all the bonds of Truth Law and Religion Not that we would render it so criminal to serve the Nation under both Govenments as having served both to persecute either But we will end the whole with this solemn Declaro ' and protest First That we are Free-born English-men and esteem our selves undoubted Heirs of our Countries Liberties not to be dis-inherited upon any religious Difference it being no Clause or Proviso in our first Civil Constitution or Fore-fathers last Will and Testament Secondly That we have been deprived of our dear Liberty and Property and that meerly for Worshipping the God that made Us against all Law Reason and Scripture particularly at the Old-Bailey Thirdly That notwithstanding such daily provocations we do as heartily forgive as we are maliciously persecuted bearing no ill-will to the persons of any The Title and Tenure of our holy Gospel being Glory to God on High on Earth Peace and Good-will towards all men And we could desire of God if it might please him to open their Eyes and affect their Hearts with a right sence of things that they might understand how much more it would be their true Interest to rebuke Vice then punish Opinion and that in themselves first So would Oppression cease the Spring-Tides of Intemperance fall Mercy Truth Justice and Peace flow over all the Banks of Animosity Self-interest Revenge to the once more refreshing of our Weary Dry and Parched Country with the pleasant Streams of thorow Reformation From Newgate Prison in London the first Moneth 1671. W. Penn. THE END Courteous Reader THou art desired to place the numerous Errors of this Discourse to the account of difficulty in Printing any thing that comes not out with an IMPRIMATUR in the front of it But as we can't fly to the Hills to hide us so will it be esteem'd civility in thee to excuse the Authors from the Mistakes be they Points Letters Syllables or whole Words A short Collection follows Page Line Errors Corrected 3 17 Gilt Guilt  18 srcipta scripta  19 become becomes 4 4 imply imploy 5 last doubted thought 12 last Christ God 16 1 ginious genius 19 15 conformed conform 27 17 maind man'd 39 23 Goaled Goalers 40 5 Mead Mead's 41 7 they we  17 or for 43 2 so to  14 commanded they commanded 44 12 it was the they were 50 3 out-stript out stript  7 Friend Friends 52 10 impudent imprudent 53 20 the their 54 last that that it 59 11 This Thus  25 cient ancient  28 it appears he pretends 60 28 Auguments Arguments  33 Proceedings Proceedings as appears thâ—s Page 1. Page 1. Page 1. Page 1. Page 2. Page 2. Page 5. Pas. 5. Ja. 25 F. 3 4. 28 E. 3.3 37 E. 3.8 42 E. 3.3 11 Dec. 1670. Lib. asserted pag. 60 61. Cook 4 Institu Epilogue Wagstaffs Case 17. Ca 2. Câ— 2. Inst 28. 2 Institut 48. Stat. 25. E. 1. cap. 2. Cook 2 Instit prefact Co 2 Inst 161. Lib. 1. cap. 29. Cook 1 Inst 78. 2 Inst 56. and 526. Co. 2 Inst 11. Votes Par. Ang. 11. Dec. 1667. Title Abusions of the Common Law cap. 5. sect 1. Vide Poltons statutes Title Attaint 1 Inst sect 103 Co. 2 In. 375. Stat. 28 E. 1. Vide Cook 2 Inst 178 179. Co. 2 Just
appear to all impartial Men unworthy of those Reflections and hard Names S.S. is pleased to heap upon me I shall conclude the Vindication of my Innocency with his own Relation of my Tryal And truly when I weigh his frank Confessions concerning Passages the most notorious I should be amazed at his Indiscretion did I not know how usual it is with God to leave such men under strong infatuations For to give it a short Character it s almost Verbatim The Second Edition of our own Tryal I mean that part which related to the Transactions of the Court and Prisoners And whether he has vindicated them from those Expressions which to all sober men are most detestable or backt the Accusation of the Author of our Tryal by his publique acknowledgement of them let any but S.S. and his Juncto judge How then the Author of that Tryal could justly be condemned for his Relation as scurrilous and malicious which is so exactly copied after by S.S. will be hard for any man of Sence to think unless he brings his own Account under the same imputation But he tell us That he thought good to set down the Names of those Justices who were present Honoris Causa with all their Additions and Titles that so the World may know that the City of London wants not worthy Patriots who dare call to an account these vile railing Rabshekahs of this Age. And the rather because the Libeller hath in a disgraceful way prefixt their names without any Additions to his Narative thereby intending to make them odious to the People The Persons Nam'd are Sr. Sam. Starling Knight then Lord Mayor Sr. Jo. Robinson Kt. and Bar. Sr. Tho. Bludworth Kt. and Alder. Sr. Wil. Peak Kt. and Alder. Sr. Jo. Howell Kt. and Recorder Sr. Rich. Ford Kt. and Alder. Sr. Jo. Shelden Kt. and Alder. Sr. Jo. Smith Sheriffs Sr. Jam. Edwards Sheriffs To which I must needs say I knew a time when the City of London had a better Advocate What man in his Wits would not despise the Folly and Meanness of this wretched Pedagoge The weakness of whose Discourse eminently shews the ricketted constitution of the Author First He has but little of Religion that dares to lie in the common Field of every mans knowledge since he denies that ever the Author of the Tryal gave the aforementioned Persons any Additions when Alder. is to every one of them that really is so Next I cannot chose but observe his vanity as if the omitting of the Title Sr. had been a robbing them of their Honour I am sure they have very little that have no more But if to give them their own Names be matter of Disgrace it is worth our while to consider how disgraceful those Persons were in this Libellers account before they had that Title given them though I am apt to think they were not less reputed before then since and because they write not themselves so much as that Author Printed them and that none can suppose them to omit those Titles disgracefully to themselves it is both ridiculous and false to charge such a Design upon the Author But whilst he calls me and my Fellow-Prisoner the vile and railing Rabshekahs of this Age and ventures to load us with Slander and Reproach methinks he proves himself to be of that ill-bred Tribe in accusing us for such But to his Nota's upon the Tryal Nota 1. page 13. THE Prisoners in stubborn manner refusing to take their Hats they were put on again by the same Person Answer This is a Lye to be confirmed by hundreds we never did nor never shall refuse to take our Hats and put them on too which we had no time to do for having been taken off by the Keepers I suppose in Kindness seeing the Courâ— displeas'd or rather some in it the Mayor I think it was cryed out Sirrah Who bid you pull off their Hats Put on their Hats again At which the same Keepers put them on of which the Author of our Tryal has been more particular Nota 2. pag. 13. The court observing that the Prisoners standing on the Leads behind the Bar with their Hats on facing the Court all that day as it were daring the Court to a Tryal so that the Court and all the Spectators lookt upon them as offering a great Affront to the Honour of his Majesties Court the Justices were resolved to chastize them for the same Answ His second Nota is his second Lye For first we were not upon the Leads any time of the day as many can attest but in the Bale-dock or within the Bar attending upon the Tryals of Thieves and Murderers to the displeasure of the Spectators but not on our part Besides that this was done upon meer design is evident because neither were the Goaled nor we so hardly treated the first day of our appearance when there was equal ground for it Nota 3. pag. 14. This is a great Falshood for their Hats were put on behind the Bar before they came into Court Answ But it is a great Truth that we were not behind the Bar at all until towards the Evening when cast into their stinking Hole and there indeed they stay'd us behind the Bar three Hours And for mine own part I do declare my Hat was clapt upon my head by the Keepers hand within a very little space of the place in which we usually stood during the whole time of our Tryal Nota 4. pag. 14. This is insignificant Canting Answ What Wil. Mead saying Fear God and dread his Power O stupendious Impiety That ever any profest Protestant should have so much out-sinned all Sence of God and his Dreadful Power as to repute that Seasonable Exhortation Insignificant Canting But this makes us the less to wonder at our Sufferings from such Nota 5. pag. 14. It was by Sr. John Robinson observed that Bushel the Tender Conscienced Jury-man made an offer to kiss the Book but did not wherefore he was called upon by the Court to be Sworn again Ans How much that quick-sighted Lievtenant had more Jealousie and Prejudice then others in his Eye the many Spectators present can best decide or mine own share I did not observe him to gratifie the common Custom of the Court more in the latter then former tender of the Oath unto him But with what prepenst Unkindness and disdainful Ketch he was treated was obvious to those about him I perceive it is as Criminal to be Tender-conscienced as it is esteemed Canting to bid men Fear God For as that Religious Advice was made matter of Mockage so this good quality is not less rendred Suspitious But how Tender-conscienced such persons are that make so ill use of such Expressions is best manifest in their severe Prosecutions of men that really are so Nota 6. pag. 17. As clear Evidence as ever was offered to any Jury Two Witnesses prove the Fact against both the Prisoners and the Prisoners confess the whole matter
or his Feet trod upon Besides It does not appear that the House was seized pursuant to any Tryal Conviction or Judgment by the Laws of England and that such seizure is not according to the sence of them appears by the Statute of the 17th of Charles the first Cap. 10. where it is expresly said That neither his Majesty nor his Council have or ought to have any Jurisdiction Power or Authority by English Bill Petition Articles Libel or any other arbitrary way whatsoever to examine or draw into question determine or dispose of the Lands Tenements Hereditaments Goods and Chattels of any Subjects of this Kingdom but that the same ought to be tryed and determined in the Courts of Justice and by the ordinary Course of Law Nota 12. page 2â— The Jury in Mr Pen's opinion and Bushels both are perjured men for that at last they brought in a Verdict contradictory to this Answ Those that have read the Tryal will apprehend his meaning for upon their bringing me in not guilty of an unlawfull Meeting but guilty onely of speaking in the plâ—ce called Grace-Church-Street and the Court menacing them much and saying They would have a Verdict meaning Guilty I said the consent of Twelve men is a Verdict in Law and if they bring in another Verdict contrary to this they are Perjured Men. But what then Therefore when they brought me in Not Guilty had they perjudred themselves Nothing less I am ashamed to read so ridiculous a Non Sequitur in Print If I understand what Contraries mean the opposit to Not Guilty must be Guilty But that they gave no such Verdict absolutely is manifest from the Courts not receiving it for above all things they waited and prest hard for it Therefore to be guilty of Speaking in Grace-Church-Street and not at an Vnlawful Assembly is a not being guilty in Law and consequently their Verdict no Contradiction Nota 13. pag. 26. At this time some of the Jury complained to the Court that the four men viz. Bushel Hammond and the other two would starve them and that they had brought Strong-water-Bottles in their Pockets designedly Answ 'T is not the Quakers Light but S.S. his Darkness that is the Father of Lyes and Miserable will be the End of such as make them their Refuge For First There was no such Complaint made Secondly Nor was there any just Occasion for one And Lastly Methinks this Libeller might remember that if he thought me condemnable for not giving the Justices more Titles and Additions then their own Names and that of Aldermen he upon greater cause deserves a Check that cannot afford those able and honest Citizens more then half their Names and scarcely that too Nota 14. pag. 26. The Court having regard to the Health of the Jury adjourned till seven next morning although it was Sunday which otherwise they would not have done Answ It was and is a real Question Whether the health of the Jury or condemnation of the Prisoners was most in their eye but no matter which I shall briefly insist upon their adjournment to that Day I suppose it is not unknown to those that know Law that Dies Dominicus non est in lege dies or That the Lords Day is not a Day in Law That is There ought not to be Assizes Sessions or Termes held on that Day because it is a time the Law takes no cognizance of nor has any relation to thus Cook in his first Instit Sect. 201. fol. 155. where he excludes that day from the number of those he calls Dies Juridici or Dayes in Law The consequence of which must needs be this That their whole procedure at that Session becomes question'd and void in Law But to justifie those Transactions they got a Commission after Sessions anti-dated from the time of that Adjournment I shall not much reflect upon the Passage it carries it s own Comment with it But methinks more Skill in Law or Moderation to the Prisoners and Jury might have prevented such an extrajudicial procedure Nota 15. pag. 28. This is the fourth time the Jury brought in this insignificant Verdict viz. That they find Penn guilty of speaking in Grace-Church-Street and how this answers the Question viz. What say you Is W. Penn guilty of the matter whereof he stands indicted in Manner and Form or not guilty Let the World judge whether that be a Verdict or not They thus often abusing the Court made the displeasure of the Court against them and surely not without cause Answ This Nota is upon the Juries continuance of their Verdict of only bringing me in Guilty of speâ—king in Grace-Church-Street delivered First day Morning But how reasonable will be the matter of our inquiery and answer If S.S. will have the Jury only Judge of Fact which the Recorder expresly affâ—rmed on the Bench using words to this purpose We will have you to know that you shall not be Judges of what the Law says c. Why are they here condemned for undertaking no farther The â—rought in the Fact but that the Court thought incomprehensive of the Indictment which being complicated of Law and Fact were to answer the Question in Manner and Form And if this doth not inthrone them Judges how far the Fact reaches thâ— Law and whether by Law A.B. is guilty or not guilty I must confess my self mistaken and I am sure to have company enough of all men of sence and Sobriety So that what the Jury is deny'd elsewhere is given here and S.S. equally angry for their being and not being sole Judges Nota 16. pag. 28. William Penn made such a Noise in the Court that the Court could not hear the Jury nor the Jury the Court. Answ If to speak to be heard be Noise I was guilty of his Observation but I need the less to vindicate my self who have so many living Witnesses of Credit to do it for me If they would not hear me they ought not to have condemned me but if they could condemn me they in Conscience ought not to over-rule but hear me But would any know the Noise I made read my words and 't will be found S.S. has only Nois'd a Fiction Upon their menacing of the Jury I thus spoke It is intollerable that my Jury should be thus menaced Is this according to the Fundamental Laws thus far S.S. Are not they my proper Judges by the Great Charter of England What hope is there of ever having Justice done when Juries are cheek t and their Verdicts rejected I am concerned to speak and grieved to see such arbitrary Proceedings Did not the Lievtenant of the Tower render One of them worse then a Fellon and do you not plainly seem to condemn such for factious Fellows who answer not your Ends Vnhappy are those Juries who are threatned to be finâ—d and starved and ruined if they give not in Verdicts contrary to their Consciences This was the Noise charged upon me and for this Fetters
word MARK by the Paraphase of Slitting of Noses for that Expression seems to be the Key that opens the Mystery of the former Of how ill consequence that Threat has proved the late tragical Assassinates in several places shew I will not say they may be imputed to so ill a presedent as the Mayors Menace to Edw. Bushel from his Tribunal Seat in all his Court Formalities But certainly they must be as neer a kin that offer such barbarous Affronts to Parliaments and Juries as threatning and doing are It is hoped there will be no further need of such Remarks and that the Act expected will prove as well a Protection to the Noses of Juries as Members of the high Court of Parliament By this time the Courteous Reader cannot but see with how little of Truth and Reputation he triumphs over us and vindicates his Friends since more could scarcely have been said for us and against them then the impudent Repetition of things so Scurrilous Injuditial and Ill-timed And indeed the cold reception it finds with all that read it might have saved me this labour but that I was informed how much a Reply was expected from me And that I am not ignorant how natural it is for men of this Mans form of understanding to conceit their Pamphlet unanswerable because not answered though the only reason of it may be its indesert of so much Pains To conclude However busie some sort of men may be and I hear not a little of their Projects to mis-represent me to the King and Persons of eminent Employ that with less hazard to themselves they may sacrifice me to their injust hate I do declare my Judgment and that of my abused Friends in things relating to Civil Government and by it we would be measured and in the Strength of God resolve to stand First That we acknowledge Government to be necessary because of Transgressors Secondly That this Government should consist of wholesom Laws to supress Vice and Immorral Practices as Oaths Whoredoms Murders Lyes Thefts Extortion Treachery Prophaneness Defamation and the like Ungodly and Immodest Actions and in the encouragement of Men contrarily quallified These are Fundamentals in Law and Gospel In short We heartily own the English Government upon its ancient Civil Bassis Thirdly That there be many other temporary Laws suited to State Emergency in civil matters as in Trade c. to which we also account ourselves oblieg'd Fourthly That we there only dissent where Conscience in point of Faith and Worship towards God is concerned Fifthly That we utterly renounce as an horrible Impiety the Promotion of our Interest or Religion by the Blood of our Opposers Sixthly That if we are deny'd our Freedom in the Exercise of our Consciences to God though otherwise peaceable and industrious as it has been so will it still be our constant practice However it appears intollerable to Flesh and Blood that we should always be the Anvil on which the Hammer of every Power beats the heavy streaks of its unmerited Displeasure to sustain all in Peace and Patience because Vengeance belongs to God who certainly will repay it If therefore any that think themselves concerned in this Treatise shall offer to suggest the contrary to these Assertions and Confessions I do hereby declare them Slanderers of the greatest Innocency upon Earth and give them this publique Challenge once for all that as we will never baulk a fair debate where every point in controversie may receive a full discovery and decission so do we charge such Adversaries for the future if they would have the reputation of true men to bring their Names and Scruples into open view that so the Apprehensions of us may be justified or our Innocency relieved from the heavy pressure of their injust Slanders Newgate the 12th Moneth 1670. W. Penn. An APPENDIX Wherein the Fourth Section of S.S. his Pamphlet intituled The Fining of that Jury that gave two Contrary Verdicts Justified to prevent a Failer of Justice in London Examined READER UT obstruatur os iniqua loquentium Have I undertaken to answer this scurrilous Libeller And in clearing these Jurors from his so foul Aspertion shall manifest to the World not only the horrid falseness of his Charge against them but lay open the Vnâ—ustness and Arbitrariness of those Proceedings which this Author seems to have the Confidence now in Print to vindicate The Wise-man asserts That he that uttereth a Slander is a Fool Prov. 10.8 And the Psalmist commands That the Lying Lips be put to silence Psa 31.18 And to evidence his folly let Truth the Mother of Justice arise and plead their Innocency against one who endeavours to abuse and traduce as well the Liberties of all the Free-men of England as these respective Jurors whose Actions have rendred them worthy Citizens of London and faithful Friends to their Country THE Cause for which the Jurors were fined and imprisoned by the Bench at the Old Baily S. S boldly asserts was for their giving in two Contrary Verdicts The Falshood of which Assertion may not only be manifested by many Hundreds of Citizens who were Eye and Ear Witnesses of their Arbitrary and Illegal Procedure as well towards the other Prisoners there as these Jurors but also testified by many of this Libellers own Approved Authorities 1. Let us look back into the third Sect of his Pamphlet where he has given frequent Tests against the verity of his fourth Sect's Assertion The Jury having had no Evidence of any unlawful Act done by W.P. could not bring him in Guilty Modo Forma c. yet four times brought in so much as was by Witnesses proved against him viz. That Wil. Penn was guilty of speaking in Grace-Church Street as pag. 23 24 27 28. Which being all the Fact proved yet far short of what was laid against him in the Indictment the Recorder declared was no Verdict in Law redouâ—â—ing the Expression or Substance thereof no less then four or fâ—ve times as pag. 23 24 27 28 29. And in page 30. the Jurâ—â—s brought in W.P. Not Guilty in Manner and Form as he stood 〈◊〉 Other Verdict I never heard that the Jurors brought in neither doth S.S. in his Relation of the Tryal pretend iâ— Aâ—d why he should thus Reproach the Jurors Groundlesly and so palpably give the Lye to himself Let the Juditious judge 2. Let us examine the Retorn of the Cause of the Jurors Imprisonment which now lies before the Justices of common-Common-Pleas at Westminster Wherein S.S. Mayor J.H. Recorder and their Council with long and tedious consideration had accumilated so much Formality and needless Circumstances as swelled up the bulk to at least Twelve Sheets of Paper The matter or cause of their Imprisonment therein is only this viz. De eo quod ipsi pred Jur. modo hic eosdem Wil. Penn Wil. Mead de pred transgr contemt assemblac tumult contra legem hujus Regni Angliae et contra Plenam manifestam
Evidentiam et contra Directionem Curiae in materia legis hic de super premissis eisdem Jur. versus prefact W.P. W.M. in Cur. hic aperte dat declarat de praemissis eis impoit in Indict pred acquietaverunt in contemt dicti Dom. Regis nunc legumque suorum c. The substance of which is That the aforesaid Jurors did acquit the said William Penn and William Mead from the Trespass Contempt and unlawful Assembly and tumult against the Law of this Kingdom of England and against full and manifest Evidence and against the Direction of the Court in matters of Law openly given and declared in Court against the said W.P. and W.M. in contempt of the Lord the King and his Laws c. By which it's plainly manifest and evident that these Jurors were never guilty of giving two contrary Verdicts or fined and imprisoned by the Bench for any such Fact as S.S. hath falsly and scandalously suggested And truly if S S. has been an Eye and Ear Witness of all that passed in this affair as he affirms pa. 10 we may without breach of Charity charge him with having a very treacherous Memory which is an ill Companion for a Lyar. But next we come to enter upon the matter promised and to examine whether or no he has justifiâ—d the fining of that Jury by reason Law and Authority or any of them in order to which let us recite his words he saith Page 31. In regard that this is a Case that very much concerns the King and Kingdom and is now under the Consideration of all the Judges I shall only make four Remarks upon this Case and leave the Determination of the same to the honourable Sages of our Law Answer Surely our Author had but a small stock of courage that it should fail him in writing half a dozen Lines What in uno flatâ— to justifie the fining of a Jury and to leave it again to the Determinations of the Sages of the Law He might have left it at first to their Determination and have spared his pains of appearing in Print and yet have been thought never the unwiser Man for his silence S.S. His first REMARK As Nature says he abhors a vacuum in the Universe so it is the honour of our Law that will not suffer a Failer of Justice according to that Maxime Ne curia regis desiceret in Justitia exhibenda Therefore it is that although our Law appoints all Tryals to be by Juries yet in six Cases cited by my Lord Cook 1. p. Inst sect 102. fol. 74. the Tryal is by Certificate as in case a person be in Scotland in Prison and at Burdeaux c. Answ Our Author who quotes Cook might also have remembred thiâ— Maxime used by him 4 Inst 308. Vbi non est lex ibi non est Transgressio Where there is no Law there is no Transgression As for the matter of Tryals by Certificate it is as Forreign to the matters in debate as Burdeaux or Scotland is distant from Westminster-Hall Neither does S S in any wise by his Discourse apply it to that purpose but barely proceeds In like manner Petty-Jurors that have given their Verdict contrary to their Evidence have been fined by the Justices in Cases where the Law hath provided no otâ—â—r Punishment as by Attaint c. Answ First Observe the strangeness of S.S. his consequence Because the Law provides thâ—â— Forâ—eign matters aâ—â—ed in partibus transmarinis shall be evidenced or tryed by Certificate from those parts Therefore Facts done or acted at home in publique Courts of Justice shall not be determined in ordinary Courts oâ— Law per legale judicium parium but by the arbitrary judgment of the Bench or Court Secondly Observe how various this lâ—tter matter is to S.S. his Text viz Juries Fined for giving two Contrary Verdicts Justified changed into Juries Fined for giving in a Verdict Contrary to Evidence And since the latter is the Text to his subsequent Discourse let us try and examine his Doctrine Our Author to prove That Justices have fined Jurors for bringing in Verdicts contrary to Evidence gives us his Authorities thus Vide Whartâ—ns Case Yelverton fol. 23. Noy reports the same fol. 48. And Judge Popham said there were divers Presedents to that pupose and cites divers one by Justices in Eire Watts vers Braines in an Appeal to B.R. Crook l. 3. 779. vide Leonard l. 2. 102. pl. 175. and l. 3. 147. pl. 196. Southwels Case in the Exchequor Moor 730. Lemons Case in the Court of Wards Cook l. 12. 23. Prices Case in the Star-Chamber Answ That these Cases are material to our Authors purpose more then to amuse the Reader with Cotations I cannot find neither doth S.S. set forth the substance whereby this Age might understand their Drift and Intent But Cook who he quotes in his justification was clearly of another Opinion to what S.S. would suggest for in the Case he cites 12 Reports 23. That Lover of his Country and England's Liberties speaking of Jurors Freedom by Law to give their Verdicts declares That the Law will not suppose any indifferent when he is sworn to serve the King c. To which agreeâ— says he the Books in 22 Ass 77. Assise p. 13. 21 E. 3 17. 19 H. 6.19 47 E. 3.17 27 H. 8.2 F.N.B. 115. A And the Law presumes that every Juror will be indifferent when he is sworn Nor will the Law admit proof against this presumption But S.S. as conscious of the nullity of those before recited Authorities to justifie his Cause gives us one as he supposes to purpose viz. Wagstaffs Case Trin. 17. C. 2. in B.R. This says he agrees with our present Case in all points And concludes with this Mich. 16. Car. 2. in Banco Regis Leech and five other 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 Tearm they appeared accordingly and the Court directed an Information against them and upon that they were fined Upon which S.S. concludes the fining of Jurors that find contrary to their Evidence is no innovaton but alwayes practized and that by as learned Judges as ever England Bred. We shall not much insist upon the imparity of this last Case in its Points to that in hand being of little further use then to manifest the ignorance and falsity of our Author so only say this to it that 1 see his ignorance that appears by his own showing Leech's Iury says he were fined upon an Information brought against them in the Kings-Bench which much varies from the Case of Edw. Bushel c. in that they were Arbitrarily fined by the Bench at the Old-Baily without Information or matter of Record or being brought to answer by any precâ—ss of Law expresly against the Stat. 25. E. 3. cap. 3.
2. See the impudent Falsity of this Libeller It s acknowledged that Leech with five other Jury-men of whom were Anthony Selby Oylman in Pudding Lane Edward Briscoe in Lothbury Brown a Dyer in Thames-Street London c. Persons of good Reputation and well known in this City were as S.S. alledges bound to appear in the King-Bench by R. Hyde then chief Iustice who after many foul Reproaches and daring Menaces to those Citizens of London as is too frequent a practise in that Court commanded an Information to be exhibited against them in the Crown Office for acquitting somâ— Quakers who were given them in charge at the Old-Baily to which-they all willingly appeared but that they were sized thereon as asserted by S.S. is a most horrid Vntruth for Hyde never afterwards in his life time was so hardy to prosecute the same to Trial nor had J.K. his Successor so much Courage to compleat his Predecessors Enterâ—rize but prudently surceas'd the Suâ—t So this Case cited by S. S is but like the rest of his Authorities with which he would patch up and salve his Patrons illegal and arbitrary Procedures But that we may come more closly to the point in hand First We absolutely deny S.S. his Conclusion and do affirm that as well the Fining and Imprisoning as otherwise punishing a Iury of twelve men Iâ— pannelled to try c. betwixt the King and a Prisonâ—r for giving a Verdict according to their Conscience though in the sence of the Bench and Iustices in Eier contrary to Evidence is an Innovation and the practise of it against Reason the Law of England and the Liberties of its Freeborn People This Point is so considerable that I may say and affirm that the fairest Flower that now grows in the Garden of the English-mans Liberties is a fair Tryal by his Peers or Twelve of his Neighbours which so much Artifice and Violence is used by the wild Bâ—res of our age to pluck up by the Roots In order to its defence and security let us first remove that grand Obâ—ection of our Adversary which he makes a Foundation for his aâ—ter superstructure of violence and Oppression Aâ—d that is from the 29th Chaptâ—r of the Great Chapter on these words Or by the Law of the Land intimating therefrom that by or by the Law of the Land is meant â—ome other Judges Judicatuâ—e or Jurisdiction then Judgment of Peers as in the third page of his Pamphlet The Judgment of â—oke 2 Instit 50 an undeniable Author and authority may serv o â—ear the pâ—â—nt who writes thuâ— upon his Exposition on per 〈◊〉 First For the true seâ—ce and expoâ—ition of these words says hâ— See the Statute of 37 E. 3. cap. 8 where the words By the Law of the Land are rendred without due prosess of Law For there it is said thoâ—gh it be contained in the Great Charter that 〈◊〉 man be taken imprisoned or put out of hâ—s Free-hold without 〈◊〉 of Law that is by Indictment or Presentment of good and Lawfull men where such Deeds be done in due manner or bâ— Writ original of the Common-Law Secondly Without being brought in to answer but by due process of the Common-Law Thirdly No man be put to answer without presentment before Justices or thing of Record or by due Process or by Writ original according to the old Law of the Land By which is most apparent to every reaâ—onable understanding that by the words or by the Law of the Land is not meant other Jurisdiâ—tion Judges or Judicature wherein or whereby any man is to be tryed as S.S. would ignorantly have it but that the Proceedings against a Free-man of England in order to the Judgment of his Peers or twelve Neighbours shall be according to the Laws of the Land as by Presentment Indictment c. Statute 37 E. 3 cap. 8. And Coke declares that the said 29 th Chapter was but Declaratory of the old Law of the Land which knew no other Judgments or Jurisdictions for its free Inhabitants but Legale Juditium parium suorum neither have the Free-men of England heard of any such except by those arbitrary Innovators who have felt the smart of their sore Oppressions by the hand of Justice have received condign Punishment as due rewards for their introducing of new Jurisdictions as the Reader may see at large Cook 2 Instit fol. 51. Cook 4 Inst fol. 41. And Horns Mirror of Justice cap. 5. sect 1. And this seasonable Caveat and Caution Cook has left as a Legacy to such Time-Servers Qui corum Vestigjis insistunt corum exitus perhorrescant This having SHAKEN HIS SANDY FOUNDATION by the stablished Fundamental Laws and the Responsis Prudentium upon the Ancient Statutes of England Let us try the strength of his Babel-superstructure by the same infallable Rules and Measures Says S.S. The fining of Jurors has been alwayes practized as pag. 33. Answ Truly his Prescription for time is unquestionable if he but prove by Authority what he barely affirms but this I fear he will fall short in Does he bring his Examples Usages or Customs so to fine Jurors from the times or Laws of Alfred Athelston Edmundus Edgar Canutus Edward the Confessor William the first Henry the first Noble and Famous Princes of this Nation many of whose Laws are yet in force from our Charter of Liberties ancient Statutes of this Realm Nothing less But should I grant that he had brought a Presedent of later standing to countenance the late illegal procedure as by Wagstaffs Case it appears he has will it not deservedly fall under the Censure of a Tortious Vsage having neither the Statute Law of the Land nor Reason the Ground of the Law to warrant or justifie it which Andrew Horn a Writer of the Law in the Reign of E. 1. accounts no more of then those of Thieves whose Vsages are to Rob and Steal Mirror Justice cap. 5. sect 1. And that we may as aptly suit a Case to our Libellers as he would have that of Wagstaffs to answer us Take a Resolve of a Court not inferior to the Consideratum est of the K Bench whose Reason and Authority was never subjected to the Opinion of three or four interested persons as S.S. by his bold Pamphlet would have it I mean the Parliament of the Commons of England who upon Justice K fining of Wagstaffs Iury Resolved That he had used an Arbitrary and Illegal Power which was of dangerous consequence to the Lives and Liberties of the People of England and tended to the introducing of an Arbitray Government And that the Presedents and Practice of Fining and Imprisoning Juries for Verdicts is illegal Hence we may observe that Illo die Englands Fountain of Justice was clear and wholesom although the Rivolets or lesser Streams might be troubled and corrupted Therefore it 's worthy our observation what Cook that Master of Reason directing himself to the sobordinate Courts or Seats of Justice said Quod