YALE UNIVERSITY LIBRARY

3 9002 06447 1700

Penn, William and Mead, William
The Peoples' Ancient and Just Liberties Asserted.
London, 1810.

_i

YALE UNIVERSITY
LIBRARY

1941

THE
PEOPLES' ANCIENT AND JUST LIBERTIES ASSERTED:

IN THE

T R,I A L
OP
WILLIAM PENN, and WILLIAM MEAD,
At' the Sessions i
Held at the Old Bailey, London,
The 1st. 3d. 4th. and 5th. of September, 1670.
AGAINST THE MOST ARBITRARY PROCEEDURE OF
THAT qOURT:
WITH
AN APPENDIX,
Written by WILLIAM PENN.

A NEW EDITION,

HARLOW : PRINTED BY B. FLOWER:
FOR M..JONES, NO. ,5. NEWGATE-STREET; AND D. EAT03J,
HIGH HOLBORN; LONDON.

1810.

[Price One Shilling and Sixpence.}

PREFACE TO THIS EDITION.

J. he following Tract is taken from the first volume,
folio, of the Works of William Penn, who, with
another, of the principal preachers amongst the Qua
kers, William Mead, was tried at the Old Bailey,
London, September, 1670, for " preaching to an un-
" lawful and tumultuous assembly in Grace-Church-
" Street." There is perhaps no trial in our English records,
in which the arbitrary principles of the court, and
the integrity, intrepidity, and firmness of the jury
are more conspicuousl The memory of one of the
jurors in particular, Edward Bushel, will ever be
held in respect and admiration by all those who re
gard Trial by Jury, as one of the most valuable of
the Bjrth-rights of an Englishman.
The conduct of these assertors of our rights, was
shortly afterwards approved of by the Court of Com
mon Pleas, when their case was solemnly argued, and
the fines levied on them for persisting in their verdict,

IV PREFACE.
declared by the chief justice, Sir John Vaughan,
and adjudged by the court, to be illegal. This adjudi
cation strongly tended to confirm the rights of juries,
and secure them from, the attacks of .unprincipled
judges,, The Appendix, written by that extraordinary and
excellent man William Penn, contains extracts
from some important records in English history, toge
ther with observations which are at all times worthy
the serious attention of Englishmen, and more especi
ally at a period when the rights of the subject, as de
fined in Magna ChaRta, and in various acts of par
liament, have undergone much discussion, and are
likely to be productive of still more serious discus
sion, in a_ court of justice, and in both houses of
parliament.
B. F
Harlow, July 5, 1810.

THE PEOPLES'
ANCIENT AND J (J ST LIBERTIES
^S^RTED.

J\.S there c,an be np,ob,serva.tiop, where tfoete isjip action ;
^p U,is imppssible there, sjiajl b,e a judicious intelligence yitli"
.out due observation.
And since there cap be nothing more tea^ppable.thiap.a
right information, ^speci^jly of public acjs; and jv^ell know
ing. how industrious some .jvijU be to misrepresent jhis tnal,
.ip the disadvantage of ;fhe cause and prispnei;s, it jva^s
thpiiglit requisite, in defence of both, and fpr the satisfac
tion of, tfye pepple, tp make jt more public; npr can there j>£
finy bflsiuess wherein, the people oOEngl&nd .are mqre con
cerned, than in that which relates tp.tbpir, civil and religious
liberties questioned in tbe persons before, p^med at the Old-
Bailey, the 1st. 3d. ..,4th. and 5th. qf Sept. ]6?p.
There being present on the bench, as justices,
John Robinson, AW, >
Joseph Shelden, Aid.

Ricchand Brown,*}
John Smith, ^Sheriffs.
Jame^Edwards, 3

Sam. Starling, Mayor.
John Ho-wel, Recorder.
Tho. Bludwprth, Aid.
William P.e.a,k, Aid.
Richard Ford, Aid.
The citizens of London that were summoned for jurors,
appearing, were impannelled, viz.
Qletk. .Qajl over the jury.
Cryer. O y^s ! Tfoomas Veer, Ed., Bushel, John Ham
mond, Chailes Milson, Gregory Walklet, jJohn Brighttnan,
Wil. jPU-n-nstead, Henry Henley, Janies I)aaiask, Henry
jyiichel, Wil. Lever, John, Baily.
.A

, THE FORM OF THE OATH.
You shall well and truly try, and true deliverance make
betwixt our Sovereign Lord the King, and the prisoners at
the bar, according to your evidence : so help you God.
THE INDICTMENT.
That William Penn, Gent, and William Mead, late of
London, Linen-Draper, with divers other persons, to the
jurors unknown, to the number of three hundred, the 15th.
day of August, in the 22d. year of the King, about Eleven
of the clock in the forenoon the same day, with force and
arms, &c. in the parish of St. Bennet Grace-Cburch, in
Bridge- Ward, London, in the street called Grace-Church-
Street, unlawfully and tumultuously did assemble and con
gregate themselves together, to the disturbance of the peace
of the said Lord the King : and the aforesaid William Penn
and -William Mead, together with other persons, to the ju
rors aforesaid unknown, then and there so assembled and
congregated together; the,aforesaid William Penn, by agree
ment between him and William Mead, before made, and by
abetment of the aforesaid William Mead, then and there in
the open street, did take upon himself to preach and speak,
and then, and there, did preach and speak unto the aforesaid
William Mead, and other persons there, in the street afore
said, being assembled and congregated together, by reason
whereof a great concourse and tumult of people in the street
aforesaid, then and there, a long time did remain and con
tinue, in contempt of the said Lord the King, and of his
law ; to the great disturbance of his peace, to the great ter
ror and disturbance ot many of his liege people and subjects,
to the ill example of all others in the like case offenders, and
against the peace of the said Lord the King, his crown and
dignity. What say you William Penn, and William Mead, are you
guilty, as you stand indicted, in manner and form as afore
said, or not guilty ?
Penn. It is impossible that we should be able to remember
the indictmeut verbatim, and therefore we desire a copy of
it, as is customary on the like occasions.

Recorder. You must first plead to the indictment, before
you can have a copy of it.
Penn. I am unacquainted with the formality of the- law,
and therefore before I shallanswer directly, 1 request two
things of the court. First, That no advantage may be taken
against me, nor I deprived of any benefit, which I might
otherwise have received. Secondly, That you will promise
me a fair hearing, and liberty of making my defence.
Court. No advantage shall be taken against you : you
shall have liberty ; you shall be heard.
Penn. Then I plead not guilty in manner and form.
Clerfc. What sayest thou, William Mead: art thou guilty
in manner and form, as thou standest indicted, or not guilty ?
Mead. I shall desire the same liberty as is promised to
William Penn. -
Court. You shall have it.
Mead. Then I plead not guilty in manner and form.
The court adjourned until the afternoon.
Cryer. Q Yes ! &c.
* Clerk. Bring William Penn and William Mead to the bar.
The said prisoners were brought, but were set aside, and
other business prosecuted : where we cannot choose but ob
serve, that it was the constant and unkind practice of the
court to the prisoners, to make them wait upon the trials of
felons and murderers, thereby designing, in all probability,
both to affront and tire them.
After five hours attendance, the court broke up, and ad
journed to the third instant.
The Sd. of September, the court sat.
Gryer. O Yes ! &c.
Mayor. Sirrah, who bid you put' off their hats ? Put on
their hats again. • ,«
Whereupon one of the officers putting the prisoners hats
upon theii: heads (pursuant to the order of the court) brought
them to the bar.
Rec. E|o you know where you are .'
Penn, Yes,
Rec. Do you know it is the King's court?
A.a

Penn. I kriovfr it to be i coirrty arid I suppose it to be fhe
King's court.
Med. Do ydh know thfere is respect due to the c6urt ?
Perm. Yes.
Rec. Why do you not pay it then ?
Penn. I do So. '?<;
Etc: Why do you riot piit off your hat then ?
Penn. Because I do not believe that to be any respect ?
-Ret. Well, the court sets forty marks a-piece tipdn ydur
heads, as a fine for yocrf contempt of the c'ourt.
Penri. I desire it may be observed, that we came into fhe
court with bur hats off, (that is, taken off,) and if they have
been put oh/sincej it Was by Order ofthe bench ; and there*
fore riot we, btit the bench should be fined.
Mead. 1 have a question to ask the Recorder : Am I fitted
also? Rec. Yes. *
Mead. I desire the jury, and all people 16 take notice of
this injustice of the Recorder, who spake hot to hie to pbll
off my hat, arid yet hath he put a fitie upon my head. O
feat the Lord, arid dfead his power, and yield to the guidance
of h\i holy spirit; for he Is hbt far from every one of you.
The jUi;y Were sworn again.
J. Robinson, Lieutenant of the Tower, disingeniiouJly" ob
jected against Ed1*. Bushel* as if he had not kist the nook,
and therefore would have him sWorri again ; though indeed
it was on piupose, to Have made use of his tenderness of con
science, in avoiding reiterated oalhs, to have put him by his
being a juryman, apprehending him to be a person not fit tp
answer their arbitrary ends.
The clerk read the indictment, as aforesaid. '
Clerk. Cryer, call James Cook into the cOurt, give him
His oath.
Clerk. James Cook, lay your hand upon the book, "The
" evidence you shall give tp the court, betwixt our Sovereign
" tbe King, and the prisoners at the bar, shall he the truth,
" aud the whole truth, and nothing but the truth : so help
" you God, &c."

Codk. 1 tf ste Wnt fW frdm th* fc*eH#hge», to go* and dis
perse a meeting in Grace-Cburch-Street, where I saw Mr.
Penn speaking to the people^ but I could rk>r hear what he
said, because of the noise ; I erideAvOured to thake Way to take
him, but I ctitfldnotget to him* for the crowd df people;
upon wliich Captain Mead came to me, about the kennel of
tbe Hreet-t Md desired me to let hlttt go an ; for tthtio he had
dohej he would bring Mr. Perin id me;
Court. What number do you think might be there ?
Cooft. About three or four hundred people1.
Court. Call Richard Read, give him his oath.
Read beirtg swdrn, was asked, what do you know cdricern-
ing the prisoners at the bar?
Read. My Lord, I went to Grace-Church-Street, where I
found a great crowd of people, and I heard Mr. Penrt preach
to them, arid I saw Captain Mead speaking to Lieutenant
' Coofe> but what he said I could hot tell.
Mead. What did William Penn say ?
Read. There Was such a great noise, that I Could not tell
what he said.
Mead. Jury, observe this evidence, he sriith, he heard
him preach, and yet sajth he doth not know what he said.
Jury, take notice, he swears now a Clean corrtrafy thing,
fo What he swore before the Mayor, when we were commit
ted : for now he swears that he saw me in Grace-Church*
Sirett, and yet swore before the Mayor, when I was com
mitted, that hfe did not see' me there. I appeal to the Maybt
Jlimsfelf if this be not true : but no answer was given.
Court. What hutnber do you think might be there?
Read. About four or five hundred.
Penn. 1 desire to know of him what day it was?
Read. The 14th day of August.
Penn. Did he speak to me, or let me know he Was there ;
for I am Very sure 1 never saw him.
Clerk. Gryer, call — —  into tbe court.
Give him his oath.
.  v.  My Lord, I saw a great number of people, and
Mr. Penn, I suppose, was speaking; I saw him make a mo
tion with his hands, and heard some noise, but Could not

understand what he said ; but fpr Captain Mead,, I did not
see him there.
Rec. What say you Mr. Mead, were you there ?
Mead, it is a maxim in your own law, Nemo tenetur ac-
cusare scipsum, which if it be not true Latin, 1 am sure that
it is true English, That no man is bound to accuse himself:
and why dost thou offer to ensnare me with such a question ?
Doth not this shew thy malice ? Is this like unto a judge,
that ought to be council ibr the prisoner at the bar ?
Rec. Sir, hold your tongue, 1 did not go about to ensnare
you. Penn. I desire we 'may come more close to the point, and
that silence be commanded in the court.
Cryer. O Yes! All manner of persons keep silence upon
pain of imprisonment. —  Silence in the court.
Penn. We confess ourselves to be so far from recanting,
or declining to vindicate the assembling of ourselves, to
preach, pray, or worship the Eternal, Holy, Just God, that
we declare to all the world, that we do believe it to be our
indispensable duty, to meet incessantly upon so good an ac
count : nor shall all the powers upon earth be able to divert
us from reverencing and adoring our God, who made us.
Brown. You are not here for worshipping God, but for
breaking the law-, you do yourselves a great deal of Wrong
in going on in that discourse.
Penn. I affirm I have broken no law, nor am I guilty of
the indictment that is laid to my chaige: and to the end,
the bepch, the jury, and myself, with those that hear us, "
may have a more djrept understanding of this procedure, I
desire you would let me know by what law it is you prosecute
me, and upon what Jaw you ground my indictment.
Rec. Upon the common law.
Penn. Where is that common jaw ?
Rec. You must not think that I am able tornn up so manj
years, and over so many adjudged cases, which we call com
mon law, to answer your curiosity.
1 Penn. This answer I am sure is very short of my question ;
fqr if it be common, it should not be so hard to produce-
f Rec. Will you plead to your indictment ?

Penn. Shall 1 plead to an indictment that hath no foun
dation in law ? If it contain that law you say I have broken,
why should you decline to produce that law, since it will be
impossible for the jury to determine, or agree to bring in
their verdict, who have riot the law produced, by which they
should measure the truth of this indictment, and the guilt,
or contrary of my fact.
Rec. You are a saucy fellow, speak to the indictment.
Penn. I say, it is my place to speak to matter of law. I
am arraigned a prisoner; my liberty, which is next to life
itself is now concerned; you are many mouths and ears a-
gainst me, and if I must not be allowed to make the best of
my case, it is 'hard : I say1 again, unless you shew me, and
the people, the law you ground your indictment upon, I
shall take it for granted, your proceedings are merely arbi
trary. [At this time several upon the bench urged hard upon the
prisoner to bear him down.]
Rec. The question is, whether you are guilty of this in
dictment ?
Penn. The question is not wbether I am guilty of this in
dictment, but whether this indictment be legal : it is too ge
neral 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 is lex non scripta, that, which many
have studied thirty or forty years to know, and would you
have me tell you in. a moment ? /
Penn. Certainly, if the common law be so hard to be un
derstood,' it is far from being very common; but if the Lord
Coke in his Institutes, be of any consideration, he tells us,
that common law is common right; and that common right
is the great charter privilege, confirmed 9 Hen. III. 29-
25 Edw. I. 1. 2 Edvv. III. 8. Coke Inst. 2. p. 56.
Rec. Sir, you are a troublesome fellow, and it is not for
the honour ofthe court to suffer you to go on.

Pentt. I haye asked but ope question, and you have -not
answered me.; though the /ights and privileges pf every En
glishman be concerned in it.
Rec. If I should suffer you to aft questions till to-morrow-
morning, you would be never the wiser.
Penn. That's .according as the answers are.
Rec. Sir, we must not stand to hear you talk all night.
Penn. ,1 design, no affront to the court, but to -be heard
Jn my jnstplea ; and I must plainly tell you, that if you, will
deny me the oyer of that law, which you suggest I haye bro
ken, you do at once deny me an acknowledged right, and
evidence to the whple world your resolution to sacrifice the
privileges of Englishmen, to your sinister and arbitrary de
signs. 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 ifltp
the Bale-Dock.
Penn. These are but so many vain exclamations: \s th^s
justice, or true judgment ? .Must I therefore be taken away
because I plead 'for the fundamental. laws of England ? How
ever, this I leav.e upon your consciences, who are of the jury,
(and my .sole judges) th,at if these ancie,nt fundamental law.s
which relate to liberty and property, (and are not limited tp
particular persuasions in matters qf religion) must not J>e. in
dispensably maintained and observed, Who can say he hath
right to the caat upon his ; h\ack? Certainly pur liberties are
openly to be invaded,; our wives to be ravished ; qur, children
enslaved; qur families ruined; and our estates Jed away lu
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.
Penn. I am not to be silent in a case jvherein I am so
much concerned : and not pnly niy,self, but rn^ny ten thou
sand families besides.

9
They having' rudely haled him into the Bale-Dock, Wil
liam Mead they left in court, who spake as followeth.
Mead. You men of the jury, here I do now stand to an
swer to an indictment against me, which is a bundle of stuff
full of lyes, aud falshoods; for therein! am accused that I
met vi Ss armis,'ilficite 8; tumult uouse : time was, when I
had freedom to use a carnal weapon, and then I thought I
feared-no man ; but now I fear theMivingGoni and dare not
make Use thereof, nor hurt any man ; nor do I know I de
meaned myself: as a tumultuous person. I say, I am a peace
able man, therefore it is a very proper question what William
Penn demanded in this case, an oyei ofthe law, qn which
our indictment is grounded.
Ree. I have made answer to that already.
Mead. Turning his face to the jury, said, you men of the
j\iry, who are my judges, if the Recorder will notf tell you
what makes a riot, a rout, or an unlawful assembly, Coke,
he that once they called the Lord 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 man's land, to cut down his grass, his
wood, or break down. his pales.'
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 mayest put on thy hat, I have never a fee 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 cum culpa redarguit ipsum.
Mayor. You deserve to have your tongue cut oui.
Rec. If you discourse on this manner, 1 shall take occa
sion against you.
Mead. Thou didst promise me, I should have fair liberty
to be heard. Why may I not have the privilege of an En
glishman ? I am an Englishman, and you might be ashamed
of this dealing.

10
• Rec. I ldok upon you to be ah enemy to the laws of Eng-
gland, 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 thi*
matter. Upon which they took biro away into the bale dock, and
the Recorder proceeded, to give the jury their charge, as
followeth. . Rec. You have bpard 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 s^ee 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.
The prisoners were put out of the court, into the bale-
dock, and the charge given to the jury in their absence, at
which William Penn with a very raised voice, it being a
considerable distance from the bench, spake.
Penn. I appeal to the jury, who are my judges, and this
great assembly, whether the proceedings of thecourt 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, i^
is directly opposite to, and destructive of the undoubted
right of every English prisoner, as Coke in the 2d inst. 29.
On the chapter oi Magna Charta speaks.
The Recorder being thus unexpcctedJy. lasht for his extra-.
judicial procedure, said, with an enraged smile,'
Rec. Why yeare present, you do hear: do you not?
Perm. N,o thanks to the conrtj that commanded me into
the. bple-dock ; and you ofthe jury take, notice, that 1 have
not been heard, neither can you legally depart the court
before I have been fully beard, having at least ten or .twelve
material points to offer, in order to invalidate their indict-
lnent. ,- „-
Rec. Pull that fellow down ; pull him down.

ii
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, arid tlie jury to have
their charge given them in our absence? I say, these are"
barbarous and uhjrfstf proceedings.
Rec. Take them away into the hole ; to' hear 't'hfehV ta*lk
all night, as they would, th aft T think doth'^hbV become the
honour of the court ; and I think you (i. e.) the jury your
selves would be tired'out, and hot have patience" to hear them.
The jury were commanded up to agree Upbh their verdict,
the prisoners1 remaining in the stinking hole ; after an'honr
and' an half's time, eight' came down agreed, but four remained
above'; the court sent an officer fht them, and7 they accor-<
ditigly came down : the bench used'many unworthy threats
tei'the' four that dissented , and the recorder addressing him
self to Bushfel, said, " Sir, you are the cause of this distur-
" bance, and manifestly shew* yourself an abettor of faction ;
" I' shall se>t a-mtMi upon ybui Sir."
J. Robinson. Mr. Bushel, I have known you near this
fdurteCh years: ;¦ you harethiust yourself updn' this jury ; be
cause you think there is some1 service for yoti ; FttHI you,'
you deser^e'to Ue indicted more than any mat! that hath' been
brought to the bar this day.
BtosHkl'. No," Sir John,' "ttfgrV We're! threescore^be'fore me,
add I wtftfld willingly littve gbtroff, but could' not,
Bludw.lsa\d wheri I:saw Mr: Bushel, what TseC is Co'rrie
to pass ; for I knew he would never yield. Mr. Bushel, we '
know what'yditare.
May.&r>. S'irrtih, ydu are' ah irhp;uderit;ftllow, T will' put1 a
mark upon you. •
They'usfecfohtaeh'then'acing language, andliehaved them
selves very imperiously to the jury, as persdris not more void
of justice, than sobeVedirCjitioii; • After this barbarous usage,
"they sent them to cqnsider of bringing in their verdict, and
after some considerable time tfte'y returned' toXhe court.
Silence was called for, and the jury called by "their names,
- Clerk. :Are'you"agreed up'bn'ybnr verdict ?
, Jury: Yes; •• ¦ :o1 L '. "-
Clefk. Who shall speak for you ?

IS
Jury. Our foreman.
Clerk. Look upon the prisoners at fife bar : how say you ?
Is William Penn guilty ofthe matter whereof he stands in
dicted in manner and form, or not guilty ?
Foreman. Guilty of speaking in Grace-Gliurch-Street.
Court. Is that all ?
Foreman. That is all I have in commission.
Rec. You had as good say nothing, ' ,
Mayor. Was it not an unlawful assembly ? You mean he
wasspeaking tq a tumult qf people there ?
Foreman. My Lord, this was all I had in commission.
¦ Here some of the jury seemed to buckle to the questions
of the court, upon which Bushel, Hammond, and some
others, opposed themselves, and said, they allowed; of no ,
such word/ as " an unlawful assembly," in their verdict; at
which the Recorder, Mayor, Robinson, and Bludworth,
took great occasion to vilify them with most opprobrious lan
guage ; and this verdict not serving their turns* the Recor-
der expressed himself thus : <
Rec. The law of England will not allow you to depart, till
you have given in your verdict.
, Jury. We have given in our verdict, and we can give in
uo.other. Rec. Gentlemen, you have not given in your verdict, arid
you had as good say nothing; therefore go and consider it
once more, that we may make aq end of this troublesome
business, .. ,
Jury. We desire we may have pen, ink, and paper-
The court adjourns for half an hour ; which being expired
the court returns, and the jury not long after.
The prisoners were brought to the bar, and thejurqrs
hames called over*.
Clerk. A'e you agreed of your verdict.?-
Jury. Yes.
Clerk. Who, shall speak for you ?
Jury. Qur foreman.
Clerk. What say you ? Look, upon the prisoners ; is Wil
liam Penn guilty in manner and form, as he stands indicted
er not guilty ? '

13
Foreman. Here is our verdict : holding forth a piece of
paper to the clerk ofthe peace, which follows:
WfL the jurors, hereafter named, do find William Pemi
guilty of speaking or preaching to an assembly, met toge
ther in Gracechurch Street, the 14th of August last, 1 670,
and. that William Mead is not guilty of the said indictment.
Foreman, Thomas Veer, Edward Bushel, John Hammond,
Henry Henley, Henry Michel, John Brightman, Charles
Milson, Gregory Walklet, John Baily, William Lever,
James Damask, William Plumstead. <
This both Mayor and Recorder resented at so high a rate
that tltey exceeded the bounds of all reason and civility.
• Mayoi'. What will you he -led by such a silly fellow as
"Bushel; an impudent canting fellow ? I warrant you, you
shall come no more upon juries in haste; you are' a foreman
indeed! (addressing himself to the foreman,) I thought you
had understood your place better.
Rec. Gentleman, you shall not be dismist, till we have a
verdict that the court will accept ; and you shall be lock'd
up, without meal, drink, fire, ahd tobacco: you shall not
think thus to abuse the court ; we will have a verdict by the
help of God, or you shall starve for it.
Penn* My jury, who are my judge's, ought not'be '-.thus
menaced; their verdict should be free, and hot compelled;
the bench ought to wait upon them, but not forests! them;
I do desire that justice may be done me, and that the arbi
trary resolves of the beneh may not be made the measure of
my jury's verdict.
, Rec. Stop that prating -fellow's mouth, or put him out of
the court.
Mayor. You have heard that he preached ; that he ga
thered a company of tumultuous people; and that they do
not only disobey the martial power, but the civil also.
Fenn. It is a great mistake ; we did not make the tumult,
but they that interrupted us. The jury cannot be so ignorant
as to think that we met there with a design to disturb the
civil peace, since (1st.) we were by force of arms kept out of
our lawful house, and met as near it in the street, as the
soldiers would give us leave : and (2d) because it was no new

U4
tlfctfigiinor with the eirciimsta-reces expressed in the indictment,
but what was. usual arid customary with its ;) 'us very well;
fepowa that! we are a peaceable people, and cannot offer Vio
lence to any map.
The court being ready to break up, and willing to huddle
the prisoners to their jail, and the jury to their chamber,
Penn spake as follows :
Penn. The agreement, of twelve men is a verdict in-law,.
and, small a, one being given by, the jury, I require the clerk
of the peace to record it„ as he will answer it at his peril :
and if the jury bring: in another verdict contrary to- this, I
affirm.-tbey are perjured mem in law. (Andlooking upon the
jury, said) You are Englishmen, mindiyours privilege, give
not, not away .ytoun right.
Bushel, <jS«\ Nor will we ever do it.
..One, ofthe jurymen pleaded) indisposition of body,, and
therefore desired to be dismist.
Mayor. You are as strong as any of them; starve then,
and. hold your principles.
Reci; Gentlemen, you must.be content with yourhard fate; •
let ypun patience qvercomeit; far the' court is resolved: to
have a verdict, and that before you can be dismist.
Jury* We are' agreed j we are agreed, we are agreed.
.The.cqurt,swore:severalpersonsy.tokeep the jury all night,1
without rn eat, drink) fire, or any other accommodation; they
had not so much as a chamberpot} though desired,
Cryer. O, yesy &c.
The court adjourn'd till seven ofthe clocki'next morningi-
(being, the, fourth instant,, vulgarly; called Sunday) • at which
time the prisoners were brought to the bar, the court sat, -
amLthe jury /called in, to bring in tbeirverdicti
Cryer. ,Q yes, &C-— Silence in the court upon pain of im-
prisonment. The jury's hames called over.
Clerk. Are you .agreed upon your verdict ?
Jury. Yes, ,
Clerk. Who, shall speak far you,
Jury. Qur foreman. ;

15
' , Clerk. What say you i Look upon the prisoners \t the
bar i is William Penn guilty of -the matter whereof he stands
indicted, in manner and form as aforesaid, or not guilty ?
Foreman. William Penn is guilty of speaking ia Grace-
Church-"Street. <
Mayor. To an unlawful assembly.
Bushel. No, my lord, we give no other verdict, than what
we gave last night ; we have no other verdict to give.
Mayor. You are a factious fellow ; I'll take a course with
*ou. Bludw. I knew Mr. Bushel would hot yield.
' Bushel. Sir Thomas, I have done according to my con
science. Mayor. That conscience of yours would cut my throat.
> Bushel. No, my lord, it never shall.
Mayor. But I will cut yours so soon as I can,
Rec. He has inspired the jury : he has the spirit of divina
tion : methinks 1 feel him ; 1 will have a positive verdict, or
you shall starve for it.
Penn. I desire lo ask the Recorder one question : do ydd
^llow ofthe verdict given of William Mead?
Rec. It cannot be a verdict, because vou are indicted for
a conspiracy ; and one being found not guilty, and not the
other, it could not be a verdict.
Penn. If not guilty be not a verdict, then you make of tlie
jury, and Magna Charta, but a mere nose of wax.
Mead. How !. is not guilty no verdict ?
Rec. No, 'tis uo veidict.
Penn. I affirm, that- the consent of a jury is a verdiet in
l&w; and if William Mead be not guilty, it consequently'
follows, that I am dear, since you have indicted us of a con
spiracy, and I eould not possibly conspire alone.
There were many passages' that could not be taken, which
past between the jury and the court; The jury went up
again, having received a fresh charge from the bench, if
possible to extort an unjust verdict.
• Cryer. O^ye*, &c.  Silence in the court.
Court-. Call over the jury  Which was done;

16
Clerk. What say you ? Is William Penn guilty of the
.matter whereof he stands indicted, in manner and form a-
foresaid, or not guilty ?
Foreman. Guilty of speaking in Grace-Church-Street.
Rec. What is this to the purpose? I say I will have a
verdict. And speaking to E. Bushel, said, You are a fac
tious fellow; and I will set a mark upon you; and whilst I
have any thing to do in the city, I will have an eye upon
you. Mayor. Have you no more wit than to be led by such a
pitiful fellow ? I will cut his nose.
, Penn. It is intolerable that my jury should be thus me
naced ; is this according to the fundamental law ? Are not
they my proper judges by the great charter of England ?
What hope is thereof ever having justice done, when juries
are threatened, and their verdicts rejected? I am concern
ed to speak, and grieved to see such arbitrary proceedings.
Did not the Lieutenant of the Tower render one of them
worse than a felon ? And do you not plainly seem to con
demn such for factious fellows, who answer not your ends?
Unhappy are those juries who are threatened to be fined, and
starved, and ruined, if they give not in their verdicts con
trary to their consciences.
Rec. My lord, you must take a course with that same fel
low. Mayor. Stop his mouth ; jailer, bring fetters, and stake
him to the ground.
Penn. Do your pleasure, J matter not your fetters. .
, Rec. Till now I never understood the reason of the poller/
and prudence of the Spaniards, in suffering the inquisition
among them: And certainly it will never be well with vs, till
something like the Spanish. inquisition be in England.
The jury being required to go together, to find another
verdict, and stedfastly refusing it (saying they could give no
"other verdict than what was already given) the Recorder in
great passion 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 ie-

17
turned, and directed himself unto the jury, and spake as
folloWeth. Rec. Gentlemen, we shall not be at this pass 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 bf the law. Mr*' Lee> draw up another
verdict, that they may bring it in special. ,m t,
Lee. I cannot tell how to-do it. '*' • ¦ ¦'¦
Jury. We ought not to be returned, having all agreed,
and set our hands to the verdict. ' '.b'"
Rec. Your verdict is nothing, you play upon the court;
I say, you shall go together, and bring in another venrfict,
or you shall starve; and I will have you carted about the
city, as in Edward the Third's time.7
Foreman. 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. '¦.<>,,_¦ :;;.!>
Mayor. Take them up. : - .'
Officer. My lord they will not go up.
The Mayor spoke to the Sheriff, and he came offnis seat,
and said : • •
Sher. Come gentlemen, you must go up; you see I am
commanded to make you go. • ¦>'>¦¦¦¦'
Cpou which the jury went np; and several sworn to keep
them without any accommodation, a's- aforesaid; till they
brought in their verdict.
Cryer. O Yes ! See. The court adjourns till- to-morrow
momingr at seven of the clock. >>••
O r
The prisoners were remanded to Newgate, where they re
mained till next morning, and then were brought into the
court, which being sat, they proceeded as followeth. -• <
Cryer. O Yes ! &c. — Silence in tbe court upon pain of
imprisonment. Clerk. Set William Penn and William Mead to the bar.
Gentlemen ofthe Jury, answer to your names, Thomas Veer,
Edward Bushel, John Hammond,1 Henry Henley, Henry
Michel, John Brightman, Charles Milson, Gregoiy Walk-

18
let, John Bailey, William v Lever, James Damask, William
.Plumstead, are you allagreed of your verdict?
i. Jury. Yes. ,',-¦¦¦¦
Hi Clerk. Who shall speak for you?
Jury. Our foreman. -¦ ¦
! £lerk. Look upon the prisoners.:. Whatsay you; is WiU.
liam Penn guilty of ithe matter whereof he stands indicted,
in manner and form, &c. or not guilty ?
Jj Fprenfan. ; You Jiavei there; read in writing already our
verdict, and our hands subscribed. i -u;--
; The ClCrk had the paper, but was stopped by the Recorder
from reading of it ; and he commanded to ask for a positive
verdict. • > •;¦.'. '-¦"¦'
Foreman. If you will not accept of it; I desiiie tohaye it
back, again. -
in Court n That paper was no verdict, and there shall be no
advantage taken against you by it. . ,
Clerk. How say you ? Is William Penn guilty, &c. or
not guilty? < !iV , ¦¦"¦•[''
Foreman. Not, guilty.. (l .- ,¦¦¦]! ,
Clerk. How say you ? Is William Mead guilty;. &c. or
not guilty? :¦•¦¦ ¦-•» >,»¦•.! . "i .^k,
Foreman. Not guilty. ' :i-r;<>
rpClerk. JThen hearken to your verdict : you say, that Wil-
liath Penn [is not guilty in manner and form, as he stands
indicted; you say, that William Mead is not guilty in man
ner and form,; as he s;tands; indicted; and so you say all.
Jury. Yes, we do so. .. ,
.. The bench being unsatisfied with the verdict, commanded
that eyery person should distinctly answer to their namesj
and give in their verdict, which they unanimously did, in,
Saying* Npt Guilty, to the great satisfaction of the assembly.
Rec. I am sorry, gentlemen, you have followed your own
judgments and opinidns, rather than the good and whole
some advice, which was given you ; God keep my life out-
qf your hands ;but for, this the court fines you forty marks a
man, and imprisonment till paid. At which Penn stept up
towards the bench, and sajd,
Penn. I demand my liberty, being freed by the jury.

19
Mayor. No, you are in fpjr, your fines.
Penn. Fines, for what?
Mayor. For contempt of the court. r
Penn. I ask if it be according to the fundamental laws of
England, that any Englishman should be fined, or amerced,
but by the judgment of his peers, or jury? JSince it expressly
contradicts the fourteenth and twenty-nipth chapter of the
great charter of England, which says, No freeman 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. ^
Penn. lean 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.
They then haled the prisoners to the Bale-dock, and from
thence sent them to Newgate, for non-payment of their
fines; and so were their jury,

c2

AN APPENDIX,
BY WAY OF DEFENCE FOR THE PRISONERS^
Oft WHAT MIGHT HAVE BEEN OFFERED AGAINST THE
INDICTMENT, AND ILLEGAL PROCEEDINGS OF THE
COURT THEREON, HAD. THEY NOT VIOLENTLY
OVER-RULED AND STOPPED THEM.

-=^£35£5^=»-

TTi

PON a sober disquisition into several parts of the in
dictment, we find it so wretchedly defective, as if it were
nothing else but a mere composition of error, rather calcu
lated to the malicious designs of the judges, than to the least
verity of fact committed by the prisoners.
To prove this, what we say, will be a main help to disco
ver the arbitrary proceedings of the bench, in their frequent
mtnaces to the jury ; as if it were not so much their business
to try, as to condemn the prisoners ; and that not so much
for any fact they had committed, as what the court would
have suggested to the jury to have been their fact.
Sect. 1. It is the constant common law of England,  That
no man should be taken, imprisoned, amerced, disseized of his
freehold, of his liberties, or free customs, but by the judgment
of his peers, which are vulgarly called a jury, from Jurare
because they were szcorn to do right.
Sect. p. The only assistance that is given the jury, in or
der to a verdict is :
First. The evidence given of the fact committed by the
person indicted.
Secondly,. The knowledge ofthat law, act, or statute, the
indictment is grounded upon, and which the prisoners are
said to have transgressed.
Sect. 8. We shall neglect to mention here, how much
they were deprived of that just advantage, the ancient, equai

laws of England do allow ; designing it for a conclusion of
the whole, and shall only speak here, to matter Of fact and law.
Sect. 4. Tbe evidence, you have read in the trial, the ut
most import of which, is no more than this, that William
Penn was speaking in Grace-Church-Street, toan assembly
of people, but they knew not what he said ; which is so great
a contradiction, as he that runs may read it ; for no man can
say, another man preaches, and yet understand not what he .
saith ; he may conjecture it, but that is a lame evidence in
law; it might as well have been sworn, that he was speaking of
law, physick, trade, or any other matter of civil government,
Besides, there is no law agairist preaching what is truth,
whether it be. in the street, or in any other place; nor is it
possible, that any man can truly swear, that he preached
sedition, heresy, &c. unless he so heard him, that he could
tell what he said.
Sect. 5. The evidence further saith, that W. Mead was
there, but till being in Grace-Church-Street be a fault, and
hearing a man speak, the witness knows not what, be cdn"
trary to law, the whole evidence is useless, and impertinent;
but what they want of that, they endeavour to supply with
indictment; whose parts we proceed to consider.
Exceptions against the Indictment.
Sect. 6. It saith, that the prisoners [were met upon the
15th day of August, 1670.] whereas their own evidence
affirms it to be upon the 14th day of August, 1670.
Sect. 7- {That they met with force and arms :] which is so
great a lie, that the court had no better cover for it, than to
tell the jury, it was only a piece of form : urging, that tho
man tried for clipping of money this, present sessions, had
the same words used in his indictment.
But that this answer is too scanty, as well as it was too
weak to prevail with the jury, we desire it may be con
sidered, that the same words may be used mqre of course,
and out qf form at one lime, than at another , and though
we grant they can have little force with any jury in a clip
per's case, for meer clipping, yet they are words that give
sp just a ground of jealousy, nay, that carry so clear art
eyiclence of illegality, where they are truly proved and

952
affirmed of any meeting, as that they are the proper roots
from , whence do spring those branches which render an
indictment terrible, and an assembly truly the terror of the
people. i. _
Sect. 8, [Unlawful, and tumultuously to disturb the peace ,J
which is as true, as what is said before; (that is as false) this
will evidently appear to all that consider how lawful it is to
assemble, with no other design than to worship God. And
their calling a lawful assembly an unlawTuI one, no more
makes it so, than to say light is darkness, black is white,
concludes so impudent a falsity true.
fn short, because to worship God can never be a crime, no
meeting, or assembly designing to worship God, can be un
lawful. Such as go about to prove an unlawful assemblyj
must prove these assemblers intent not to worship God ; but
that ho man can do, because no man can know another
man's; intentions, and therefore it is impossible that any
should prove such an assembly unlawful. That is properly
an unlawful assembly, according to the definition ofthe law,
when several persons are met together, with design to use
violence, and to do mischief; but that dissenters meet with'
no such intention, is manifest to the whole world, therefore
their assemblies are not unlawful ; he that hath only right to
be worshipped, who is God, hath only right to institute how
he will be worshipped ; and such as worship him in that way'
they apprehend him to have instituted, are so far from being
unlawful assemblers, that therein they do but express their
duty they owe to God.
[Tiawltuously~\ Imports, as much as disorderly, or an
assembly full of noise, bustle, and confusion, using force
and violence, to the injury of persons, houses, or grounds.
But whether religious dissenters, in their peaceable meetings,.
therein desiring, and seeking nothing more than to express
that duty they owe to God Almighty, be guilty of a tumul
tuous action, or meeting in the sense exprest (and which is
the very definition of the law) will be the question. Cer
tainly, such as call these meetings tumultuous, as to break
the peaoc-7 offer the greatest violence to common words,
that, can be well imagined; for they may as rightly say,

23
such persons meet adulterously, thievishly, &c. as to affirm
they meet tumultously, because they are as truly applicable;
in short, such particulars, as are required to prove them such
meetings in law, are wholly wanting.
Sect. 9* [To the disturbance cf the peace.']
If the-disturbahce of the peace be but matter of form with
the rest, as is usual pleaded ; leave out this mattter of form,
and then see what great matter will' be left.
Certainly such assemblies, as are not to the breacH' and
disturbance of the peacej are far from being unlawful, or
tumultuary: but rf the peace be broken by them; how comes
it the evidence was so short? We cahhot believe it was in
favour of the 'prisoners. This may shew to all the reasonable
world, how; forward some are, to brand innocency with
hateful names, to bring a suspicion, where there was none
deserved. Sect. 10. [That the said Perm and Mead, met by agreement
before hand made.'] ^'
But if persons that never saw each other, nor Convet-sed
together, neither had Correspondence by any other hand,
cannot'be said to be- agreed, to any action before it be done ;
then- the prisoners were far front ah agreement ; for they had
never seen, converst, nor corresponded; directly', nor indi
rectly, before the officers came to disturb the assembly i we
well know how far they would have stretched the word,
agreement, or cohspiracy ; but God, who brings to nought
all the counsels ofthe wicked, prevented their' cruel designs.
Sect.-} I. [That William Mead did abet the Said Willidnt
Perin in preaching,] '
Nb man can be said to abet another, whilst they are both
unknown to each other, especially'' in 'this case, where abet
ting follows agreeing, and agreeing supposed fore-knriwledge:'
nay, the word abet in law, signifies to command, procure,
or counsel a person, which W.' Mead could not be said lo
do, in reference to W. Penn, they being so great strangers'
one to another, and at so great a distance ; for the eviderice
proves, that he was with Lieutenant Cobk, ahd' Lieutenant
Cook swears, he could not make his way to W. Perin. for
the crowd. - '" '

24 . 7
Sect. 12. [That W. Penn's preapHng^qn&speaMng, caused
a. great concourse and tumult of people j to remain and conti*
nue a long time in the street.] ¦ . .
But this is so improbable to believe, that the very nature of
a tumult admits of no such thing as preaching ; but.{mplies a
disorderly multitude, where a]l may ;be said to speak* father
than any to hear. , , '
Sect. 1. [In contempt of the King and his laws.] <. •,
They are so ,far from contemning the; King and.bis laws,
that they are obliged and constrained, by their own principles
to obey every ordinance of, man for the;Lord's sake, but not
against tlie Lord, for man's sake, which is the question in
hand. Besides) their continuance there, was nothin conJ
tempt, but by the permission ofthe chief officer present,, that
came there by the King's authority; nor is it for the honour
ofthe King that such persons should be said to act; in con
tempt of his laws, as only meet to "honour God and, his laws.
Sect. 2. [And to the great disturbance of 'the, King's pexice.]
It is far from, disturbing, or breaking the King's peace,
for men peaceably to meet to worship God; fpr it is
then properly broken and invaded^ when force and violence.
are used, to the hurt and prejudice of persons and estates;
or when any thing is done that tends to the stirring. up of se
dition, and begetting in people a dislike of the civil govern
ment : but that such things are not practised by us in our,
assemblies, either to offer violence to mens persons and es
tates, or tq stir up people to sedition, or dislike to the civil
government, is obvious to all, that visit, our assemblies...
Sect. 3. [to ihe great terror and disturbance of the King's
liege people and subjects, and, to the evil example of all others
in the like case offending, against the King's peace, his crown
and dignity.]
Were these black criminations, as true as they are wretch
edly false, we should give as just an occasion to lose our li
berties, as our Cruel adversaries are ready to take any to de
prive us unjustly of them. O 1 how notorious is it to all so
ber people, that our manner of life is far from terrifying any;
and how absurd to think, that naked men (in the generality
of their conversation, known to be harmless and quiet)

25
should prove a terror, or disturbance to the people {certain
ly, if any such thing should be iu the time of our meetings,
it is brought with the cruelty and barbarous actions of your
own soldiers ; they never learned by our example to beat,
bale before magistrates, fine and imprison for matters rela
ting to God's worship; neither can they say, we are their
precedents, for all those adulterous, prodigal, lascivious,
drunken*; swearing, arid profane acts, they daily commit,
add esteem rather occasion of brag and boast, than sorrow
and repentance : No, they need not go So far, they have too
many (God Almighty knows) of their own superiors for their
example. Sect. 4. Bat we can never pass over with silence, nor
enough observe ihe detectable juggle of such indictments,
which we require all English and conscientious men to mind,
as they value themselves on the like occasions. How little a
grain of fact was proved, yet how Spacious ah indictment
was made? Had it related to the evidence, the bulk had
been excusable ; but when it only swelled with malicious
scaring phrases, to suggest to the people, that they were the
meerest villains, the most dangerous persons, and designing
mutually tbe subversion of the law, and breach of the peace,
to the terrifying of the people, &c.
Who can choose but tell them of their romance-indict
ment, that is so forged, as it truly merits another against
itself; This they childishly call form; but had an Italian,
or other stranger, been; in Court, he would haVe judged it
matter of fstcty as thinking it unworthy of a King's court, tq
accuse men in terms, not legally, truly, or probably due to
the fact, they really bad committed ; as well as that no
court would practise it, but that which loved to deprive men
of their liberties;, and lives, rather than to save them, nolens,
to lens. Sect. 5. Had their cruelty and juggle ended here itself,
they would have spared us the pains of any further observa
tion. But that which we have to add, on the prisoners be
half, renders their actions so abominable, in the sight of

26
justice, that all honest and ingenuous hearts, must needs ab
hor their base snares.
, They tell the jury, that being but judges of fact only, they
were to bring the prisoners in guilty (that is, of the fact) at
their peril ;' and it was the part of the bench to judge what
was law: so that if the jury had brought them in guilty,
without further explanation (though intentionally they meant
only of the fact proved by evidence) yet the bench would
¦have extended it to every, part of the indictment, and by this
impious delusion, have perjured a well-meaning jury; and
have had their babarous ends upon the innocent prisoners.
But the Jury better understanding themselves, brought in
William Penn guilty of the fact proved, namely, that he was
speaking to some people met in Grace-Church-Street, but
not to an unlawful assembly, so circumstantiated (the men
tion of which stabbed their design of moulding the general
answer of Guilty, to their Own ends, to the heart) nor in
deed could they do otherwise ; for as well the j'ury as priso
ners, were denied to have any law produced, by which they
might measure the indictment, and guilt of the fact. But
because the Recorder would or could not (perhaps it is so
long since he read law, that he may have forgotten it) we
shall perform his part, in shewing what is that common law
ofthe land, which in general he said, they were indicted for
the breach of, and which indeed, if rightly understood, is
the undoubted birth-right of every Englishman; yes, the in
heritance of inheritances, major heereditas venit, unicuiqe ;
nostrum a jure, et legibus, quam a partntibus. Coke Ih. 2. 56.
Sect. 6. All the various kinds or models of government
that are in the world, stand either upon will and power, or
condition and contract; the first rule by men; the second 1
by laws: it is our happiness to be born under such a consti*
tution as is most abhorrent in itself of all arbitrary govern
ment, and which is, and ever has been, most choice and
eareful of her laws, by which all right is preserved.
Sect. 7. All laws are either fundamental, and so immuta
ble; or superficial, and so alterable. By the first, we under
stand such laws as enjoin men to be just, honest, virtuous-
to do no wrong, to kill, rob, deceive, prejudice none ; but

3?
to do as one would be done unto ; to cherish good, and to
terrify wicked men; in short, universal reason, which are
not subject to any revolution, because no emergency, time,
or occasion, can ever justify a suspension of their execution,
much less their utter abrogation.
Sect. 8. By superficial laws, we understand such acts, laws,
or statutes as are suited to present occurrences; and which may
as well be abrogated for the good of the kingdom, as they
were first made for it. For instance, those statutes that re
late to victuals, cloaths, and places of trade, 8cc. which
have ever stood whilst the reason of them was in full force,
but when that benefit, which once redounded, fell by cross
occurrences, they ended, according to that old maxim, ces-
sante ratione legis, cessat lex ; but this cannot be said of fun
damental laws, till houses stand without their foundations,
and English mankind wholly cease to be, which brings close
upon the point. '
Sect. 9' There is not any country that has more constant
ly exprest her care and deep solicitude, for the preservation
of % her fundamental laws, than the English nation ; and
though the evil of some particular times and 'persons have
endeavoured an utter abolition of those excelleht fundamen
tals, which we have before defined and defended from any
just reason7 oT'revolution, yet God Almighty, who is always
concerned to avenge the cause of justice, and those excellent
good law's, by which it is upheld, has by his Providence be
fooled their1 contrivances, and baffled their ' atreulpts, by
bringing their designs to nought, and their persons frequent
ly to condign punishment and disgrace ; their age no anti
quary living 'can assure us, unless they say, as old as reason
itself; but our own authors are riot lacking to inform us, that
the liberties, properties, and privileges of the English na
tion, are very ancient.
Sect. '10. For Hern in his Mirror of Justice (writ in Ed
ward the First's time) fol.; 1. tells us.—" That after God had
'f abated: the nobility of the Britains, he did deliver the realm
" to men-more humble and simple, and ofthe counties ad-
" joining* to- wit, the Saxon, which oaroe froiii the parts oi

Bi

J.'i'l .' J oi

aa
" Alrnaign tp conquer this land, of- which men there wiere
" forty sovereigns, which did rule as companions ; and those "
" princes did call this realm England, which before was
" named the Greater Britain, Those, after great wars, tri
bulation, and pains, by long time suffered, did choose a
" King to reign over them, to govern the people qf God,
" and tQ maintain and defend their persons, and their, goods
" in quiet,' by the rules qf right; and at the beginning they
" did cause him to swear to maintain the holy christian faith,
'rand to guide his people by right, with all his power, witji-
" out respect of persons, and to observe the laws. And af-
" ter, when the kingdom was turned into an heritage, King:
" Alfred, that governed this kingdom abput an. hundred aiid,
" seventy one years before the conquest, did cause, the. great
" men qf the kingdom to assemble at London, and there did
" ordain for a perpetual usage, that twice ^in the year, or
" oftner, if need should be, in time of peace,, they should,
" assemble at London in parliament, for the government of '
" God's people, that men might live in quiet, and receive
" right by certain usages and holy judgments.
" \o which parliament (said our author) the i;igh$s and pre-
" rogatives of the Kings and subjects are distinguished and,
" set a part :" and particularly by him expressed, too tedi
ous here to insert; amongst which ordinances, we find,
" That no man should be imprisoned, but for a< <Fajp|i|al 0f.
"fence. And if a man should detain another in p^on by
" colour of right (forhere there was none) till the: party im-
" prisoned died, he that kept him in prison should be held
"guilty of murder," as you may read p» 33 and -S4X" He is
" declared guilty of homicide, by whom a man shall die in
" prison, whether it be by the judges, that shall too long de-
" lay to do a man right, or bycruelty of jailers, or suffering
" him to die by famine; or when a man is adjudged to dot
"penance, and shall be surcharged by hisjaihir with irons,
" or other pain, whereof he is deprived of his life.? And
p. 149. "That by the ancient, law of England,, it was felony
" to detain a man in prison,, after sufficient bail offered, where
" the person was appealed of treason, murder,, robbery, or
" burglary." P«ige 35. " None ought to be put u» common

29
" prisons, hut only such as were attainted, or principally
"appealed, or indicted, of false or wrongful imprison-
" nient } so tender have the ancient laws and constitutions
" of this realm been, of the liberty of their subjects persons,
" that no man ought to be imprisoned but for a capital of-
" fence, as treason, murder, robbery, or burglary."
Sect. 11. Nor is Lombard short, in his excellent transla
tion ofthe Saxon laws, from King Ina's time, 712. to Hen.
III. 1100. in describing to Us the great obligation, and strong
condition the: people were wont to put upon their Kings,, to
observe the ancient fundamental laws and free customs of
this land, which were handed down from one age to another.
And in the 17th. chapter of King Edward the Confessor's
laws, the mention there made of a King's duty, is very re
markable, that if he brake his oath, or performed not his
obligation : (nee nomen regis in eo constabit.) The same Lam-
bard further tells us, that however any may affirm William
of Normandy to be a conqueror, he was received by the peo
ple as Edward's successor, and by solemn path taken, to
maintain unto them the same laws that his kinsman Edward
the Confessor did : this doctrine remained in the general
unquestioned . to the* reign, of King John, who imperiously
thought that voluntas, regis, and not &dw populi, was suprema
lex, or the King's will was the supreme law, and not the.peo-
pies' preservation ; till the incensed barons) of that time, betook
themselves to a vigorous defence of their ancient rights and
liberties, and learned him to keep those laws by a due re
straint and timely compulsion,. which his former invasion of
them evidence to the; world, he would never have done wil
lingly. ... ;
Sect. 12. The proposals and articles of agreement, with
the pledges given to tbe barons, on the behalf of the people,
by the King, were confirmed in Henry the Third's time, his
son and successor ; when the abused, slighted, and disre-
gaisded law by his father, was thought fit to be reduced to
record, that tbe peppfe, of England might not for eVer after
he to seek for a written recorded law, to their defence and
security ;, for miser a, servitus est ubi jus. est vagim aut imogni-

30
turn ; and so we enter upon the Grand Charter of liber
ty and privilege in the cause, reasqn, and end of it.
Sect. 13. We shall first rehearse it, so far as we are. con-1
cerned, (with the formalities of Grant and Curse) and shall
then say something as to the cause, reason, and end of it.
a rehearsal of the material parts of the
great charter of england.
HENRY, by the grace Of God, King of England, &cj
To all archbishops, or earls, barons, sheriffs, provosts, offi
cers, and to all bailiffs, and our faithful subjects who shall
see this present charter, greeting. Know ye, That we un
to tbe honour of Almighty God, and for the salvation ofthe
souls of our progenitors, and our successors, Kings of Eng
land, to the advancement of holy church, and amendment
of oiir realm,-, of our mere and free will, have given, and
granted, to all archbishops, &c. and ^o all freemen of this
our realm, those liberties under -written, to be holden and
kept in this our realm of England, for evermore.
We have granted, and given to all freemen of our realm, for
¦us and our heirs for evermore, those liberties' under-written,
to have and to hold, to them, and to their heirs, of us and our
heirs fore-named.
A freeman shall not be amerced for a small fault, but after
the quantity of the fault: and for a great fault, after the
manner thereof, saving to him his contenements, or free
hold. And" a merchant likewise shall be amerced, saving to
hinl his merchandize; and none of the said amercements
shall be assessed, but by the oath of good and honest men cf
the vicinage.
No freeman, shall be taken, or imprisoned, nor be disseized
of his freehold, or liberties, or free customs, or be oiit-Jawed
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 : we shall sell to no
man ; we shall deny nor defer to no man, either justice or right.
And alT these customs and liberties aforesaid, which we
have granted to be holden within this our realm, as much as

*S1
"fcppertainefh to us,, and our heirs, we shall observe; and all
men of this our realm, as well spiritual as temporal (as much
as in them is) shall observe the same against all persons in
likewise. And for this our gift, and grant of those liberties,
and for other contained in our charter of liberties of. our fai
rest; the archbishops, bishops, abbots, priors; earls, barons*
knights, freeholders, and others our subjects, have given un
to us the fifteenth- part of their moveables: and we have
granted unto them on the other part, that neither 'zee ¦< nor our
heirs, shall procure or do any thirig whereby 'the liberties ia
this charter contained, shall be infringed or broken ; andt if
any thing be procured by any person contrary to the pre^
mises, it shall be held of no force or effect. These being
witnesses, Boniface archbishdp of Canterbury, &c. We ra
tifying, and approving those gifts and grants aforesaid, con
firm and make strong all the same, for us and our heirs per
petually, and by the tenor of these presents do renew the
same willingly; and granting for us and our heirs, that this
charter, in all and singular its articles for evermore, shall be
steadfastly, firmly, and inviolably observed. And, if any -ar
ticle in the same charter contained, yet hitherto peradven-
ture hath not been observed, nor kept, we Will, and by our
authority royal, command, henceforth firmly they be ob
served. Witness, &c.
The Sentence ofthe Curse given by the Bishops, with the
King's Consent, against the Breakers of the
Great Charter.
In the year of our Lord, 1253, the third day qf May, in
the great hall of tlie King at Westminster, in the presence,
and by the consent of the Lord Henry, by the grace of God,
King of England, and the Lord Richard, Earl of Cornwall,
bis brother; Roger Bigot^ Earl of'Norfolk, Marshal of En
gland ; Humphrey, Earl of Hereford; Henry, Earl of Ox
ford ; John, Earl Warren ; and other estates ofthe realm of
England: We Boniface, by the mercy of God, Archbi
shop of Canterbury, Primate of England ; F. of London ;
H. of Ely ; S. of Worcester; E. of Lincoln ; W. of Nor-

32
wich; P; of Hereford ; W. of Salisbury ; W. Of Durham;
R. of Excester ; M; of Carlisle ; W. of Bath ; E. of Roches
ter ; T. of St. Davids, Bishops, apparelled in pontificals,
with taper burning, against the breakers of the churches li
berties, and of the liberties and other customs of this realm
of England; and namely, those that are contained in the
charter of the common liberties of England,, and charter of
the forest, have denounced sentence of excommunication in
this form : by the authority of Almighty God the Father,
the Son, and the Holy Ghost, &c. of the blessed Apostles
Peter and Paul, and of all apostles, and of all martyrs, of
blessed Edward, King of England, and of all the saints of
heaven, we excommunicate and accurse, and from the benefit
©four holy mother the church, we sequester all those that
hereafter willingly and maliciously deprive, or spoil tbe church
of her right ; and all those that by any craft, or willingness,
do violate, break, diminish, or change the churches liberties,
and free customs contained in the charter of common liberties,
ancl ofthe forest, granted by our Lord the King. to archbishops,
bishops, and other prelatesof England, and likewise totheearls,
barons, knights, and other freeholders of the realm; and all
that secretly and openly, by deed, word or counsel, do make
statutes, or observe them being made, and that bringin cus
toms, or keep them, when they be brought in, against tbe
said liberties, or any of them ; and all those that shall pre
sume to judge against them; and all and every such person,
before-mentioned, that wittingly shall commit any thing of
the premises, let them well know that they incur the afore
said sentence, ipso facto.
A Confirmation of the Charters and Liberties of England,
and of the Forest^ made the Twenty Fifth Year of
Edward the First.
EDWARD, by the Grace of God, King of England,
Lord of Ireland, Duke of Guyan, to all those that these
present letters shall hear or see, greeting. Know ye, that
we to the honour of God, and to the profit of our realm,
have granted for us, and our heirs, that the charter of liber
ties, and the charter o£ the forest, which were made by com-

33
mon assent of all the realm, sin the time of King Henry our
father, shall be kept in every point, without, breach : and
we will that the same Charter shall be sent under our seal, as
well to our justices ofthe forest, as to others, and to all she
riffs of shires, and to all our other officers, and to all our
cities throughout the realm, together with our writs, in the
which it shall be contained, that they cause the aforesaid
charters to be published, and to declare to the people, that
we have confirmed them in all points ; and that our justices,
sheriffs, mayors, and other ministers, which under, us have
the laws of our land to guide,, shall allow the same charters
pleaded before them in judgment, in all their. points ; that
is, to wit, the great charter, as the common law, and the
charter of our forest, for, the wealth of our realm.
VAnd we will, that if any judgment be given from hence
forth contrary to the points of the charter aforesaid> by the
justices, or by any other, of our ministers, that hold plea be
fore them, against the points of the charter, it shall be un
done, and holden. for nought.
And we will that the same charters shall be sent under our
seal, to cathedral churches throughout our realm, thereto
remain, and shall be read before the. people two times by
the year.
And that all archbishops and bishops shall pronounce the
sentence of excommunication against all those that by word,
deed, or counsel, do contrary to the aforesaid charters, or
that in any point do break, or undo them : arid that the said
curses be twice a year denounced, and published by the pre
lates aforesaid ; and if the some prelates, or any of them, be
remiss in the denunciation of the said sentences, the Arch
bishops of Canterbury and York, for the time being, shall
compel and distrain them to the execution of their duties in
form aforesaid.
The sentence of the CLERGY, against the breakers of
the articles above-mentioned. \ ' '
IN the name of the Father, the Son, and the Holy Ghost,
Amen. Whereas our Sovereign Lord the King, to the

34
honour of God, and of holy church, and for the common
profit of the realm, hath granted for him, and his heirs for
ever, these articles above-written. Robert, Archbishop of
Canterbury, primate of all England, admonished all his pro
vince once, twice and thrice, because that shortness will not
suffer so much delay, as to give knowledge to all the people
of England of these presents in writing : we therefore enjoyn
all persons, of what estate soever they be, that they, and
every of them, as much as in them is, shall uphold and main
tain these articles, granted by our Sovereign Lord the King,
in all points : and all those that in any point do resist or
break, or in any manner hereafter procure, counsel, orin
any wise assent to resist or break those ordinances, or go
about it, by word or deed, openly or privily, by any manner
of pretence or colour; we, the aforesaid archbishop, by our
authority in this writing expressed, do excommunicate and
accurse, and from the body of our Lord Jesus Christ, and
from all the company of heaven, and from all the sacraments
of holy church, do sequester and exclude.
We may here see, that in the obscurest times' of sottish
popery, they were not left without a sense of justice, and the
necessity of liberty and property, to be inviolably enjoyed,
which brings us to the cause of it.
First.- The cause of this famous charter was, as we have
already said, the incroachments that were made by several
ministers of precedent kings, that almost became customary,
and which had near extinguished the free customs due to
Englishmen : how great care it cost our ancestors, it unbe1-
comes us to ignore, or by our silence to neglect: it was that
yoke and muzzle which failed not to disable many raging
bears, from entering the pleasant vineyard of English free
doms, that otherwise would not have left a fruitful vine in
being. Anon we may give the reader an account of some>
with their wages as well as woiks.
Secondly. The reason of it is so great, that it seems to be
its own. It is the very image and expression of justice,
liberty aud property ; points of such eminent importance, as
without which no goveinment can be said to be reasonable, '

35
but arbitrary and tyrannical; It allows every man that ii*.,
berty God and nature have given him, and the secure pos^
session of his property from the it) rode or invasion of his
neighbour, or any else of that constitutien. It justifies po.
man in a fault, only it provides equal and just ways to have,
the offender tried; considering the malice of many persecu?,
tors, and the great value of liberty and life.
¦Thirdly. The end of it was the most" noble of any earthly
projection ; to wit, the refixing of those shaken laws, held fpr,
many hundred years, by constant claim, that they jivigg
might be re-instated in their primitive liberty, and their pos
terity secured in the possession of so great happiness.
Amongst those many rich advantages that accrue to the free
people of England, from this great charter, and those many
eonfirmatory statutes of the same, we shall present the reader
with the sight of some few, that may most properly fall under
the consideration and enquiry of .these present times, as found
in our common law-books.
First. [That every Englishman is born free.
Secondly, [That no such freeman shall be taken, attached,
assessed, or imprisoned, by any petition or suggestion to the
King or his council, unless by the indictment and presentment
of good and lawful men, where such right as needs be done.]
5 Ed. 3. ch. 9- 25 Ed. 3. ch. 4. 17 Ri. 2. ch. 6. Rot. Pari.
42 Ed. 3. Coke 2. Inst. 43.
Thirdly, [That no such freeman shall be disseized of his free
hold, or liberties, or free customs, fyc] Hereby is intended
saith Coke, that lands, tenements, goods and chattels, shall
not be seized into the King's hands, contrary to this great
charter, &c. 43 Ass. pag. 12. 43 Ed. 3. Coke 2 Inst. S2k
Neither shall any such freeman be put from his livelihood
witihout answer. Coke 2. inst. 47. ,
Fourthly ;[That no freeman shall be out- lowed] unless he
shroud, and hide himself voluntarily from the justice oj the
law, 2 8c 3 Phil. 8c Mar. Dier. 1 14, 145* .
Fifthly, [No freeman shall be exiled] Coke said, there are
bnt two grounds upon which any man may be exiled ; otic
by act of parliament (supposing it not contraiy to the great
e2

36
charter)— the other in case of abjuration, for felony by the
Common law, 8tc. Coke Inst. 2,47'
Sixthly, [No freeman shall be destroyed ; that is, he shall
not be forejudged of life, limb, disherited, or put to torture,
or death.] Every oppression against law, by colour of any
usurped authority, is a kind of destruction, and itis the w'orst
oppression that is done by colour of justice. Coke, inst 2. 48.;
Seventhly, [That no freeman shall be thus taken, or impri
soned, disseized, out-lawed, exiled, or be destroyed of his liber
ties, freeholds, and free customs, but by the lawful judg
ment of his peers,] (vulgarly called jury.) So that the
judgment of any fact or person, is, by this fundamental law,
referred to the breasts and consciences of the jury: it's ren
dered in Latin, per legale judicium, that is, lawful judgment :
from whence it is to be observed, that the judgment must
have law in it, and be according to law ; which cannot be,
where they are not judges;, how far the fact is legal, or the
Contrary '; judicium quasi juris dictum, [the voice of law and
right.] And therefore is their verdict not to be rejected, be
cause it is supposed to be the truth, according to their con
sciences : for verdict, from vere dictum veritatis, [or a true>
saying or judgment] 9 Hen. 3. 26. Coke's Inst. 1. 32. Inst. 4.
207. Coke says, that by the word legale, three things are
implied. (1st) That this was by law, before the statute, and there
fore this statute but declaratory of the ancient law.
- (2d) That their verdict must be legally given ; wherein is
to be observed, (1st) The jury ought to hear no evidence,
but in the hearing and presence of the prisoner. (2d) That
they cannot send to ask any question in law of the judges,
but in the presence of the prisoner, for, de facto jus oritur.
(3d) The evidence produced by the king's council being
given, the judges cannot collect the evidence, nor urge it by
way qf charge to the jury, nor yet cqnfer with the jury about
the evidence, but in the presence of the prisoner, Coke's
Inst. 2.49.
Eighthly, [Or by ike law of the land] it is a synonimous
expression, importing no more than by the trial of peers, or
a jury ; for it is sometimes rendered not (or) disjunctively, but

37
(and) which is connectively ; however, it can never signify'
any thing contrary to the old way of trying by peers; for
then it would be connected to a contradiction.
Besides, Coke well observes, that in the 4th chap, of the
45th Ed. 3. per legem terra, imports no more than a trial by
dueprocess, and writ original at common law, which cannot
be without a jury; therefore per judicium par um, et per legem
terra, signify the same privilege unto the people. Coke
lost. 2. p. 50.
Thus have we presented you with some of those maxims of
law, dearer to our ancestors than life, because they are the
defence of the lives and liberties of the people of England ;
it is from this 29th chap, of the great charter ; great, not for
its bulk, but the privileges in it; as from a spacious root,
that so many fruitful branches of the law of England spring,
if Coke, may be credited. But how sacred soever they have
been esteemed, and still are by noble and just minds, yet so
degenerate are some, in their proceedings, that, conscious
to themselves of their baseness, they will not dare stand the
touch of this great charter, and those just laws grounded
upon it: of which number, we may. truly' rank the Mayqr
and Recorder of London, with the rest of their wise compa
nions, in their late sessions at the Old-Bailey, upon the occa
sion of the prisoners.
First, The prisoners were taken, and imprisoned, without
presentment of good and lawful men ofthe vicinage, or the
neighbourhood, but after a military and tumultuous manner,
contrary to the grand charter.
1 Secondly, They refused to produce the law upon wliich
they proceeded ; leaving thereby the prisoners, jury, and the
whole assembly in the dark.
Thirdly, They refused the prisoners to plead, and directly
withstood that great privilege, mentioned in the first chap.
25 Edw. 1. Where all justices, mayors, sheriffs, and other
ministers, that have the laws of the land to guide them, are
required to allow the said charter to be pleaded in all its
points, and in ajl cases that shall come before them in judg
ment : for no sooner did William Penn, or his fellow-pri
soner, urge upon them the great chanter, and other good

38
laws, but the Recorder cried, "Take him away^ take him
"alway, and put him into the bale-dock, or hole;" from
which refusal the Recorder can never deliver himself, unless
it be by avowing, the laws are not his guide-; ami therefore
does not suffer them to be pleaded before hitn in judgment.
Fourthly, They gave the jury their charge in the prisoners
absence, endeavouring highly to incense tbe jury against
them.' Fifthly, The verdict being given (which is in law dictum
t>tritatis (ihe voice of truth herself,) being not suitable to
their humour) they did five times reject it, with many abu
sive;, imperious, , and menacing expressions to the jury, (such
as no precedent can afford us) as if they were not the only
constituted judges by the fundamental laws of the land, but
meer ciphers, only to signify something behind their figures.
¦Sixthly, Though the prisoners were cleared by their jury,
yet were they detained for the non-payment of their >fines>
laid upon them for not pulling off their hats ; in which the
Jaw is notoriously broken. >
(tst.) In that no man shall be amerced, but according to
the offertce, and they have fined each forty marks.
(2d.) They were not amerced by any jury, but at the will
of an incensed bench. '
Besides, there is no law against the hat, and where there
is no law,' there can be no transgression, aud consequently
no legal amercement, or fine, 9 Hen. 3. chap. 14. xBut
how the prisoners were trepan'd into it, is most ridiculous on
the side of the contrivers, that finding their hats off, would
have them put on again by their officers, to fool the prisoners
with a trial of putting them off again, which childish con
ceit not being gratified, they fined them forty marks a piece.
Seventhly. Instead of accepting their verdict as good iu
law, and for the true decision ofthe matter, according to the
great charter, (that constitutes them proper judges, and
which bears them out, with many other^good laws,, in what
they agreed to as a verdict) the court did most illegally and
tyrannically fine and imprison them, as in the trial was ex
prest. Ancl that notwithstanding the late just resettfment of
the bouse of Commons, in Judge Reeling's case, where the?

39
resolved, that the precedents and practice of fining and impri
soning of juries, for their verdicts, were illegal. And here
we must need observe two things.
First. That the fundamental laws of England cannot be
more slighted, and contradicted in any thing (next English,*
men's being quite destroyed) than in not suffering them to
have that equal medium, or just way of trial, that the same
law has provided, which is by a jury.
Secondly, That the late proceeding ofthe court, at the
Old-Bailey, is an evident demonstration, that juries are now
but mere formality, and that the partial charge of the bench,
must be the verdict of the jury ; for if ever a rape were at
tempted on the conscienceof any jury, it was there. And
indeed, the ignorance of jurors, of their authority by law, is
the only reason of their unhappy cringing lo the court, aud
being scared into an anti-conscience verdict, by their lawless
threats. But we have lived to an age, so debased from all huma
nity and reason, as well as faith and religion, that some stick
not to turn butchers to their own privileges* and conspirators
against their own liberties. For however Magna Charta had
once the reputation of a sacred, unalterable law, and few
were hardened enough to incur and bear the long curse that
attends the violators of it, yet it is frequently objected now,
that the benefits there designed are but temporary, and there
fore liable to alteration, as other statutes are. What game
such persons play at, may be lively read in the attempts of
Dionysius, Phaiaris, which would have will and power be the
people's law. - ,
But that the privileges due to Englishmen, by the Great
Charter of England, have their foundation in reason and law ;
and that those new Cassandrian ways, to introduce will and
power, deserve to be detested by all persons professing sense
and honesty, and the least allegiance to our English govern
ment, we shall make appear from a sober consideration of
the nature of those privileges contained in that charter.
(1)- The ground of alteration of any law in government
(Where thereis ho invasion) should arise from the universal
discommodity of its continuance ; but tliere can be no disr

40
profit in the continuance of liberty and property, therefore
there can be no jus,t ground of alteration.
(2) No one Englishmen is born a slave to another^ nei
ther has the one a right to inherit the sweat and benefit of
the other's labour (without consent) therefore the liberty and
property of an Englishman, cannot reasonably be at the
will or beck of another, let his quality and rank be never so
great. (3) There can be nothing more unreasonable than that
which is partial ; but to take away the liberty and pro
perty of any (which are natural rights) without breaking
the law of nature (and not of will and power) is manifestly
partial, and therefore unreasonable.
(4) If it be just and reasonable for men to do as they would
be done by, then no sort of men should invade the liberties
and properties of other men, because they would not be served
sd themselves.
(5) -Where liberty and property are destroyed-, there must
alwaysbe a state of force and war, which however pleasing
it may be unto the invaders, it will seem intolerable by the
invaded, who will no longer remain subject, (in all human
probability) than while they want as much power to free
themselves; as their adversaries had to enslave them : the
troubles, hazards, ill Consequences, and illegality of such atr
tempts, as thej' have been declined by the most prudent m
all ages, so have they proved most uneasy to the most savage
of all nations, who first or last have by a mighty torrent
freed themselves, to the due punishment and great infamy
of their oppressors: such being the advantage, such the dis
advantage which necessarily do attend the fixation, and re
moval of liberty and property.
• We shall proceed to make it appear, that Magna Charta
(as recited by us) imports nothing less than their preservation,
No freeman shall be taken, or imprisoned, or be disseised of
his 'freeholds, or free customs, or be outlawed, or exiled, or
any other ways destroyed ; nor will we upon him pass, not
condemn him, but by the lawful judgment of his peers, fyc.
A freeman shall be amerced for a small fault, but after the
manner of the fault ; and for a great fault, after the greatness

41
thereof; and none ofthe said amercement shall be assessed, but
by the oath of good and lawful men ofthe vicinage.
First, It asserts Englishmen to be free f that's liberty.
Secondly, That they have freeholds; that's property.
Thirdly, That amercement, or penalties, should be pro
portioned to the faults committed, which is equity.
Fourthly, That they shall lose neither, but when theyare
adjudged to have forfeited them in the judgment of their
honest neighbours, according to the law of the land, which
is lawful judgment.
It is easy to discern to what pass the enemies of the great
"charter would bring the people of England.
First, They are now freemen ; hut they would have them
slaves. Secondly, They have now right unto their wives, children,
and estates, as their undoubted property; but such would rob
and spoil them of all.
Thirdly, Now no man is to be amerced, or punished, but
suitable to the fault; whilst they would make it suitable to
their revengeful minds, and unlimited wills.
Fourthly, Whereas the power of judgment lies in the
breasts and consciences of twelve honest neighbours ; they
would have it at the discretion of mercenary judges. To
Which we cannot choose bat add, that such discourses mani
festly strike at this present constitution of government ; for it
being founded upon the Great Charter (which is the ancient
common law of the land) as upon its best foundation; none
can design the concealing the charter, but they must necessarily
intend the extirpation of the English government ; for where
the cause is taken away, the effect must consequently cease;
and as the restoration of our ancient English laws by the
Great Charter, was the sovereign balsam which cured our
former breaches, so doubtless will the continuance of it prove
an excellent prevention to any future disturbances;
But some are ready to object, " that the great charter
*' consisting as well of religious as civil rights, the former ha-
" ving received an alteration, tliere is the same reason why
• "the latter may have the like."

42
•To whieh we answer, that the reason of alteration cannot
be the same, therefore the consequence is false. The one
being matter of opinion, about -faith and religious worship,
which is as various, as the unconstant apprehensions of men ;
but the other is matter of so immutable right, and justice,
that all generations (however differing in their religious opi
nions), have concentered and agreed to the certainty, equity,
and indispensable necessity of preserving these fundamental
laws; so that Magna Charta hath not risen and fallen with the
differing religious opinions that have been in this land, but
"hath ever remained as tbe stable right of every individual
Englishman, purely as an Englishman. Otherwise, if the
civil privileges of the pepple, had fallen with the pretended
religious privileges of the popish tyranny, at the first refor
mation (as must needs be suggested by this, objection) our
case had endedihere, that we had obtained a spiritual free
dom, at the cost of a civil bondage ; which certainly was far
rfrom the intention of the first reformers, and probably, an
unseen consequence by the objectors to their idle opinion.
In short, there is no time, in which any man may plead
¦the necessity of such at> action, as is unjust in its-own nature,
which he must unavoidably be guilty of, that doth defaceqr
cancel that law by which the justice of, liberty and property
is confirmed and maintained to the people. And conse
quently, no person may, legally , attempt the subversion, or,
extenuation of the force of the Great Charter. We shall pro
ceed to prove them instances outofboth.
Fi?sf, Any judgment given contrary to the said charter,
is to.be undone and, holden for nought, 25 Edw. 1. chap. 4.
Secondly, Any by word, deed, or counsel, that go contrary
¦to , the said charter, are to be excommunicated by the bishops;
^-andthe Archbishops of Canterbury and York, are bound to
compel the other bishops to denounce sentence accordingly, in
ease of their remissness, or neglect ; which certainly hath rela
tion to the state, rather than ihe church ; since there teas never
¦any necessity of compelling the bishops to denounce sentence in
their own case, though frequently in the people's, 25 Edw. I.
chap. 4.

43
Thirdly, That the Great Charter, and Charter of the forest,
be holden and kept in all points ; and if any statute be made to,
the contrary; that it shall be holden for nought, 43 Edw.,3. 1.
Uponrehich Coke that famous English lawyer, sqid, that alheiti,
judgments in the King's courts are of high regard in-law, and;
judicia are accounted as juris dicta; yet it isprovided .by-, the,
act bf parliament, that if any judgment: be ¦¦ given contrary to
any jof the points ofthe great charter, it shall be holden for
nought. ' He further saith, upon the statute of 25 Edw. 1. chap; 1.
that this great charter, and charter of the forest,, are properly
the common laze of the land, or the law common to all; the
people thereof.
Fourthly, Another statute runs thus : if any force come to
disturb the execution ofthe common law, ye shall cause their
bodies to be arrested, and put in prison : ye shall deny no man
right by the King's letters, nor counsel the King anything that.
may turn to his damage or disherison, 18 Edw. 3. chap. 7.
Neither to deny right by any •command under the. gnat or
little seal. This is the judges charge and oath, 2 Edw. 3.
Ch. 8. 14 Ed. 3. 14. 11 Rich. 2. chap. 10.
Fifthly, Such care hath been taken for the preservation of
this Great Charter, that in the 25th of Edw., 1. it was enacted,
" that commissioners should issue forth, that there should be
" chosen in every shire-court, by the commonalty of the
"same shire, three substantial men, knights, or oth^r
" lawful, wise, and well-disposed persons, ;to be, justices,
'* which shall be assigned by the King's, letters patent, under
" the great seal, to, hear and determine (without any other
"writ but 'only their commission) such plaints, shaJl.be made
" upon all those that commit, or offend. against any point
" contained in the aforesaid charters, 21 Edw. 1. ch. 1.
Sixthly, The necessity of preserving these charters, hath
appeared in nothing more, than in the care they have taken<
to confirm them; which, as Coke observes, havei been by.
thirty-two parliaments confirmed, established, and com
manded to be put in execution, with the condign punish-
f2

44
ment they bad inflicted upon the offenders. Coke's Proem.
to the second Book of his Institutes.
Seventhly, Thatin the notable Petition of Right, many
of these great privileges, and free customs, contained in the
aforesaid charters, and other good laws, are recited and con
firmed, 3 Car. l.i „-.'
Eighthly, The late King, in his declaration at Newmarket,
l641> acknowled the law to be the rule of his power : by
which be doubtless intended fundamental laws ; since it may
be the great advantage of countries, sometimes to suspend
the execution of temporary laws.
Having so manifestly evidenced that venerable esteem our
ancestors had of that golden rule, (the Great Charter)
with their deep solicitude, to preserve it from the defacing
of usurpation and faction; we shall proceed to give an ac
count of their just resentment, and earnest prosecution
against spme of those, who in any age have adventured to
undermine that ancient foundation, by introducing an arbi
trary way of government.
First, As judicious Lambard reports, in his Saxon Transla
tion, That the Kings in those days were by their coronation
oaths obliged to keep the ancient fundamental laws and customs
of this land of which this great charge is but declaratory, so
did King Alfred (reputed the most famous compiler of laws
amongst them) give this discovery of his indignation against
his own judges, for acting contrary to those fundamental
lawSi that he commanded the execution of forty of them ;
which may be a seasonable caveat to the judges of our times !
Secondly, Hubert de Btirgo, once Chief justice of England,
having advised Edward the First, in the eleventh year of his
reign (in his council holden at Oxford) to cancel this great
charter, and that of the forest, was justly sentenced accord
ing to law, by his peers, in open parliament, when the sta-
tutej called Cenfivmationk Chartarum, was made; in the
first chapter thereof, Magna Charta is peculiarly called
the common law, 25 Edw. I. chap. 2.
Thirdly, The Spencers (both father and son) for their ar
bitrary domination, and rash and evil counsel to Edward the

45
Second, (by which he was seduced to break the great char
ter) were banished for their pains, as Coke relates.
Fourthly, The same fate attended Tresillian and Belknap,
for their illegal proceedings.
Fifthly, The breach of this great charter was the ground
of that exemplary justice done upon Empson and Dudley,'
whose case is very memorable in this point ; tor though they
gratified Henry the Seventh in what they did, and had an
act of parliament for their warrant, made the eleventh of his«
reign, yet met with their due reward from the hands of jus
tice, that act being against equity and common reason, and1
so no justifiable ground, or apology, for those frequent abuses,
and the oppressions ofthe people, they were found guilty of.-
Hear what Lord Coke further saith concerning the matter.
' There was an act of parliament, made in the eleventh year
' of King Henry the Seventh, which had a fair flattering pre-
' amble, pretending to avoid divers mischiefs, which were
•'(ist.) The high displeasure of Almighty God. (2dly.) The
• great let of the common law. And (3dly) The great let of
' the wealth of this land. And the purvieu of that act tended
" in the execution contrary, ex-diametro, viz. to the high dis-
' pleasure of Almighty God, and the great let, nay, tbe utter
' subversion of the common law, and the great let of the
' wealth of this land, as hereafter shall appear ; the substance
' of which act follows in these words : . '
' That from henceforth, as well justices of assize, as justices
' of the peace, in every county, upon information for the King,
* before them made, without any finding or prisentment by twelve
' men, shall have full power and authority, by. their discretion,
' to hear and determine all offences, as riots, unlawful assent-
' blies', fa. committed and done agaimtawy act or statute made;
' and not repeated fyc' (A case tliat very much resembles this
of our own times.)
' By pretext of this law> Empson and Dudley did commit'
•upon the subjects, unsufferable pressure and oppression;
' and therefore this statute was justly, soon after the decease'
•of Henry the Seventh, repealed, at the next parliament,
' after his decease, by the statute of the 1 Hen. 8. Ch. 6.

4f?
* A good caveat to parliaments, to leave al! causes to be
' measured by the golden and straight metewand of the laW,
• and not by the uncertain and crooked cord of discretion.
' It is almost incredible to foresee, when any maxim or
' fundamental law of this realm is altered (as elsewhere hath
' been observed) what dangerous inconveniences do follow ;
* which most expressly appeareth by this most unjust and
' strange act of the eleventh of Henry the Seventh ; for here-
' by not only Emps1on and Dudley themselves, but such jus-
' tices of the peace (corrupt men) as they caused to be au-
' thorised, committed most grievous and heavy oppressions
• and exactions, grinding the faces of the poor subjects by
'penal laws (be they never so absolute or unfit for the time)
• by information only, without any presentment, or trial by
'jury, being tbe ancient birth-right of the subject; but to
* hear and determine the same by their discretions, inflicting
' such penalty, as the statute not repealed, imposed. These/
* and other like oppressions and exactions by, or by the
' means of Empson and Dudle}', and their instruments,
' brought infinite treasure to the King's coffers, whereof- the
' King himself, at the end, with great grief and compunc-
* tion, repented; as in another place we have observed.
' This statute of the 11th of Henry the Seventh, we have
' recited, and shewed the just inconveniences thereof; to the
'end, that the like should never hereafter be attempted in
* any couit of parliament ; and that others might avoid the
' fearful end of those two ti trie-servers, Empson and Dudley,
' Qui eoruyi vestigiis insistant, eorum txitus perhorrescant.
' See the statute of 8 Edw. 4. chap. 2. A statute of live-
• ries, an information, 8cc. by the discretion of the judges,
' to stand as an original, 8cc. This act is deservedly repealed,
'Vide 12 R. 2. chap. 13. Punishment by discretion, See.
'Vide 5tb of H. 4. chap. 6, 8. See ihe Commission of Sew-
' ers ; Discretion ought to be thus described, discretio est dis-
* cernere per legem quid sit justum : troth whence three things
* seem most remarkable.
First, The great equity and justice ofthe Great Charter,
-with the high value our ancestors have most deservedly set
upon it.

47
Secondly, The dreadful malediction, or curse, < they have
denounced upon the breakers of it, with those exemplary
punishments they have not spared to inflict upon such no
torious offenders. ,;
Thirdly, So -heinous a thing whs it esteemed of old, to
endeavour an enervation, or subversion of these ancient rights
and privileges, that acts of parliament themselves (otherwise
.the. most sacred with the people) have not been of force
enough to secure or defend such persons from condign pu
nishment, who, in pursuauce of them, have acted inconsis
tent. with our Great Charter. Therefore it is that, that great
lawyer, the Lord Coke, doth more than once aggravate the
exanrple of Empson and Dudley (with persons of the same
rank) into a just caution, as well to parliaments as judges,
ujstices, and inferior magistrates, to decline making, or ex
ecuting any .act, that may in theleast seem to infringe upon,
or confine this so often avowed and confirmed Great Charter
of the liberties of England, since parliaments are said to
err, when they cross it; the obeyers of their acts punished,
as time-serving transgressors; and that Kings; themselves
(though enriched, by those courses) have met with great
compunction. and repentance, and left amongtheir dying
words their recantations.
Therefore most notable and true it was, with which we
shall, conclude this present subject, what the King pleased
.to observe in a speech. to the parliament, about l662> (Viz.)
The good old rules of law are our best security.
The.manner ofthe court's behaviour towards the prisoners
and thejgry, with their many extravagant expressions, must
not altogether slip our observation.
(1) Their carriage to the jury out-does all precedents;
they entertained them more like a pack of felons, than a
jury of honest men, as being fitter to be tried themselves,
than to acquit others. In short, no jury, for many ages re
ceived so many instances of displeasure and affront, because
they preferred not the humour of the court, before the quiet
of .their. own consciences, even to be esteemed as perjured,
though they had really been so, had they not done what
' thev slid.

48
(2) Their treatment of the prisoners was not more unchris
tian than inhumane. History can scarce tell us of one hea
then Roman, that ever was so ignoble to his captive. What!
to accuse, and not hear them ; to threaten to bore their
tongues, gag and stop their mouths, fetter their legs- mere
ly for defending themselves, and that by the ancient funda
mental laws of England too? O barbarous 1 had they been
Turks and Infidels, that carriage would have ill become a
christian court, such actions proving much stronger dissua-
sives, than arguments to convince them, how much the
christian religion inclines men to justice and moderation,
above their dark idolatry. It is truly lamentable, that such
occasion should be given, for intelligence to foreign parts,
where England hath had the reputation of a christian coun
try, by their ill treating of its sober and religious inhabitants,
for their conscientious meetings to worship God. But above
all, dissenters had little reason to have expected this boorish .
fierceness from the Mayor of London, when they consider
his eager prosecution ofthe King's party, under Cromwell's
government, as thinking he could never give too great a tes
timony of his loyalty to that new7 instrument ; which makes
the old saying true, That one renegade is worse than three
Turks. Alderman Bludworth being conscious to himself of his
partial kindness to the popish fryars, hoped to make an
amends, by his zealous prosecution of the poor dissenters ;
for at the same sessions he moved to have an evidence (of
oo small quality) against Harrison, the mendicant fryar, sent
to Bridewel and whipped: he was earnest to have the jury
fined and imprisoned, because they brought not the prisoners
in guilty,, when no crime was proved against them but peace
ably worshipping their God*: whence it may be easy to ob
serve, that popish fryars, and prelatical persecutors, are
mere confederates.
But what others have only adventured to stammer at, the
Recorder of London has been so ingenuous as to speak most
plainly ; or else, what mean those two fatal expressions^
which are become the talk and terror of both city and coun
try?

4'£
First, in assuring the jury, " That there would be a law'
" next sessions of parliament, that no man should have the
" protection of the law, but such as conformed to the
" church :" which, should it be true, as we hope it is false-,
(and a dishonourable prophecy of that great assembly) thei
papists may live fo see their Marian days outdone by pro
fessed protestants. *
But surely no Englishman can be so sottish, as to con
ceive that this right to liberty and property, came in with
his profession of the protestant religion; or that his natural
and humane rights are dependent on certain religious appre- .
hensions; and consequently he must esteem it a cruelty in
the abstract, that persons should be denied the benefit of
those laws which relate to civil concerns, who by their de
portment in civil affairs; have no ways transgressed them, but
merely upon an opinion of faith, and matter of conscience.
It is well known that liberty and property, tradeand com
merce, were in the world long before the points in difference
betwixt protestants and dissenters> as the common privileges'
of mankind ; and therefore not to be measured out by a con
formity to this, or the other religious persuasion, but purely
as Englishmen.
Secondly, But we should rather choose to esteem this an
expression of heat in the Recorder, than that we could be
lieve a London recorder should saj', an English parliament
bIiquIc! impose so much slavery on the present age, and en
tail it upon their own posterity'(who, for ought they know,
may be reckoned among the dissenters of the next age) did
he not encourage us to believe, it was both his desire and
his judgment, from that deliberate eulogy he made on the
Spanish inquisition, expressing himself much to this purpose,
viz. "Till now I never understood the reason of the policy
" and prudence of the. Spaniards, in suffering the inquisition
" amongst them : and certainly it will neve, be well with us,
" till something like unto the Spanish inquisition be in Eng-
"land." The gross malignity of which saying is almost in
expressible :, what does this but justify that hellish design of ,
6

50
the papists, to have prevented the first reformation ? If this
be good doctrine, then Hoggestrant, the grand inquisitor,
was a more venerable person than Luther the reformer. It
was an expression that had better become Cajetan, the
pope's legate, thap, Howe), a protestant city's recorder. This
is so far from helping to convert the Spaniard, that it is
the way to harden him in his idolatry ; when abominable
cruelty shall be esteemed prudence, and the most barbarous
and exquisite torturing of truth, an excellent way to prevent
faction;. If the Recorder has spoke for no more than himself, it is
well; but certainly he little deserves to be thought a protes
tant, and a lawyer, that puts both reformation and law into
the inquisition. And doubtless the supreme governors of
the land, are highly obliged in honour and conscience,, (in
discharge of their trust to God and tbe people) to take these
things into their serious consideration, as what is expected
from them,, by those who earnestly wish theirs, and the king
dom's safety and prosperity.
POSTSCRIPT.

THE COPY OF JUDGE REELING'S CASE,
TAKEN OH1 OF THE PARLIAMENT JOURNAL.
Die Mercurii, llth. Decembris, 1667.
THE house resumed the hearing of the rest of the Report,
touching the matter of restraints upon juries ; and that upon
the examination of divers witnesses, in several clauses of re
straints put upon juries, by the Lord Chief Justice Keeling :
whereupon the committee made their resolutions, which are
as followeth.
"First. That the proceedings ofthe Lord Chief Justice,
" in the cases now reported, are innovations, in the trial of

51
" men for their lives and liberties, and that he hath used an
' arbitrary and illegal power, which is Of dangerous conse-
" quence to tbe lives and liberties of the peqple of England,
" and tends to the introducing of an arbitrary government.
" Secondly. That in the place of judicature, the Lord
" Chief Justice hath undervalued, vilified, and condemned
" Magna Charta, the great preserver of our limes, freedom,
" and property.
. " Thirdly. That he be brought to trial, in order to con-'
" dign punishment, in such manner as the house shall judge:
" most fit and requisite."
Die Veneris, \3th. Decembris, 1667.
" Resolved, &c. That the precedents and practice of
" fining or imprisoning jurors for verdicts, is illegal."
Now whether the justices of this court, in their proceedings
(both towards the prisoners, and jory) have acted according
to law, and to their oaths, and duty, to do justice without par
tiality, whereby right might be preserved, the peace of the
land secured, and our ancient laws established : or whether'
such actions tend not to deprive us of our lives and liberties,
to rob us of (our birth- right) the fundamental laws of Eng
land? And finally, to bring in an arbitrary and illegal
power, to- usurp the benches of all our courts of justice, we
leave the English reader to judge.
Certainly, there can be no higher affront offered to King
and parliament, than the bringing their reputations into sus
picion with their people, by the irregular actions of subor
dinate judges: and no age can parallel the carriage of this
Recorder, Mayor, &c. Nor can we think so ignobly of the
parliament, as that they should do less than call these per
sons to account, who failed not to do it to one less guilty,
- and of more repute, (to wit) Judge Keeling : for if his be
haviour gave just ground of jealousy, that he intended an
innovation, and the introducing an arbitrary government,
this Recorder's gave much more. Did Chief Justice Keeling
say, MAGN A Charta was Magna Farta; so did this Recorder
g 2

£¦%>
too: and didlJustice Keeling fine and imprison juries, c%-
t-rary to all law, so <jid this Recorder also. In short, there 4s
no difference; unless it be, that the one was questioned, ahd
the other deserves it : but we desire in this they may be said'
to differ, that though the former escaped punishment, the=
latter may not, who having a precedent before, did notwith
standing notoriously transgress.
To conclude. The law supposes the King cannot err, be
cause it is willing fo sUpp*ose he always acts by law, (and iio-.
luntas legis, est voluntas Regis ; or, the King's will is regu
lated by the law} but it says no such thing of the judges.'
And since they are pbjiged by oath tq disregard the King'!;
letters (though under the broad and privy seal) if they any
wise oppugn, or contradict the law qf the land ; ahd consi?
dering that every sjngle action of an inferior -minister, has3
an' ugly reference to the supreme magistrate, where not re
buked ; we cannot but conclude) that both judges are answer
able for their irregularities,' especially7 where they had not a
limitation ef a King's letter, or command, and that the
supreme magistrate is obliged, as in honour and safety to
himself, Alfred like, to bring, such to qondign punishment,
lest every sessions produce the like tragical scenes of usurpa-
tion;6ver- the conseiencesiof juries, to the vilifying and con
temning of jusfeice>^and great detriment and prejudice of'thei
gqodbonest men of this famous and free city.
FIAT JUSflTIA.> .

FINIS.

IB. Flower, PrUXleryHarlom]

A