PEN. Shall I plead to an Indictment that hath no Foundation 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 not 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 sawcy Fellow, speak to the Indictment.
[Sidenote: Obser. At this time several upon the Bench urged hard upon the Prisoner to bear him down.]
PEN. I say, it is my place to speak to Matter of Law; I am arraign'd a Prisoner; my Liberty, which is next to Life it self, is now concerned: You are many Mouths and Ears against me, and if I must not be allowed to make the best of my Case, it is hard. I say again, unless you shew me, and the People, the Law you ground your Indictment upon, I shall take it for granted your Proceedings are meerly Arbitrary.
REC. The Question is, whether you are guilty of this Indictment?
PEN. The Question is not whether I am guilty of this Indictment, but whether this Indictment be legal. It is too general 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's Lex non scripta, that which many have studied thirty or forty Years to know, and would you have me to tell you in a Moment?
PEN. Certainly, if the Common Law be so hard to be understood, it's far from being very Common; but if the Lord Cook, in his Institutes, be of any Consideration, he tells us, That Common Law is Common Right, and that Common Right is the Great Charter-Privileges: Confirmed 9 Hen. 3. 29. 25 Edw. I. i. 2 Edw. 3. 8. Cook Instit. 2 p. 56.
REC. Sir, you are a troublesome Fellow, and it is not for the Honour of the Court to suffer you to go on.
PEN. I have asked but one Question, and you have not answer'd me; tho' the Rights and Privileges of every Englishman be concerned in it.