He being now hauled into the bail-dock, it was W. Mead’s turn to plead, who spoke thus, ‘Ye men of the jury, I now stand here to answer to an indictment against me, which is a bundle of stuff full of lies and falsehoods: for therein I am accused, that I met vi & armis, illicite & tumultuose. Time was when I had freedom to use a carnal weapon, and then I thought I feared no man: but now I fear the living God, and dare not make use thereof, nor hurt any man, nor do I know I demeaned myself as a tumultuous person. I say, I am a peaceable man; therefore it was a very proper question that W. Penn demanded in this case, an oyer of the law, on which our indictment is grounded.’ To this the recorder said, ‘I have made an answer to that already.’ W. Mead then turning his face to the jury, said, ‘Ye men of the jury, who are my judges, if the recorder will not tell you what makes a riot, a rout, or unlawful assembly, Coke, he that once they called the lord Coke, tells us what makes a riot, a rout, or 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.’ The recorder interrupting him, and scornfully pulling off his hat, said, ‘I thank you, sir, that you will tell me what the law is:’ and Richard Brown, that inveterate enemy of the Quakers, said, ‘He talks at random, one while an Independent, another while of some other religion, and now a Quaker, and next a Papist.’ Mead, not being minded openly to affront this alderman, told him this well-known Latin verse.
Turpa est doctori cum culpa redarguit ipsum,
for Brown himself formerly had been an Independent, though now he belonged to the church of England, and was of the court party. But the lord mayor, who it seems was a great friend of Brown’s, said to Mead, ‘You deserve to have your tongue cut out.’ ‘And,’ added the recorder, ‘if you discourse on this manner, I shall take occasion against you.’ To which Mead returned, ‘Thou didst promise me I should have fair liberty to be heard. Why may I not have the privilege of an Englishman? and you might be ashamed of this dealing.’ At this the envious recorder said, ‘I look upon you to be an enemy to the laws of England, which ought to be observed and kept; nor are you worthy of such privileges as others have.’ Mead well seeing that force and violence prevailed, and that his speaking could not avail him, said with a composed mind, ‘The Lord be judge between me and thee in this matter.’
Upon which he was taken away into the bail-dock, and the recorder gave the jury the following charge: ‘You have heard 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 see 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.’ That the recorder spoke this to the jury in the absence of the prisoners, was indeed irregular; wherefore W. Penn, who heard this from afar, spoke with a very raised voice, that so he might be heard by those on the bench, after this manner, ‘I appeal to the jury, who are my judges, and to this great assembly, whether the proceedings of the court are not most arbitrary, and void of all law, in offering to give the jury their charge in the absence of the prisoners. I say it is directly opposite to, and destructive of the undoubted right of every English prisoner, as Coke in the 2 Inst. on the chap. of Magna Charta, speaks.’ The recorder being thus unexpectedly lashed for his extra-judicial procedure, said with a disdainful smile, ‘Why, ye are present; you do hear, do you not?’ To which Penn returned, ‘No thanks to the court, that commanded me into the bail-dock: and you of the jury take notice, that I have not been heard, neither can you legally depart the court, before I have been fully heard, having at least ten or twelve material points to offer, in order to invalidate their indictment.’ This plain speaking of W. Penn, so enraged the recorder, that he cried, ‘Pull that fellow down; pull him down.’ For Penn it seems, to be heard the better, was clambered up a little by the rails of the bail-dock. Then W. Mead said, ‘Are these according to the rights and privileges of Englishmen, that we should not be heard, but turned into the bail-dock for making our defence; and the jury to have their charge given them in our absence? I say, these are barbarous and unjust proceedings.’ The recorder yet more incensed, cried, ‘Take them away into the hole: to hear them talk all night as they would, that I think doth not become the honour of the court.’
The prisoners being kept in a stinking hole, the jury were commanded up, to agree upon their verdict; and after an hour and half’s time, eight came down agreed, but four remained above: the court then sent an officer for them, and they accordingly came down; but the court used many indecent threats to the four that dissented, and after much menacing language, and a very imperious behaviour against the jury, the prisoners being brought to the bar, the foreman was asked, ‘How say you; is William Penn guilty of the matter whereof he stands indicted in manner and form, or not guilty?’ Foreman: ‘Guilty of speaking in Gracechurch-street.’ The next question was, ‘Is that all?’ Foreman: ‘That is all I have in commission.’ This answer so displeased the recorder, that he said, ‘You had as good say nothing.’ And the lord mayor, Starling, said, ‘Was it not an unlawful assembly? You mean he was speaking to a tumult of people there?’ To which the foreman returned, ‘My lord, this was all I had in commission.’ Some of the jury seemed now to buckle to the questions of the court; but others opposed themselves, and said they allowed of no such word as an unlawful assembly in their verdict: at which some of the bench took occasion to vilify them with opprobrious language. And because the court would not dismiss the jury before they gave a more satisfactory verdict, they called for pen, ink, and paper, and so went up again: and after half an hour returning, delivered the following verdict in writing.
‘We, the jurors hereafter named, do find William Penn to be guilty of speaking or preaching to an assembly, met together in Gracechurch-street, the 14th of August last, 1670, and that William Mead is not guilty of the said indictment.
Foreman. Thomas Veer,
Edward Bushel,
John Hammond,
Henry Henly,
Henry Michel,
John Brightman,
Charles Milson,
Gregory Walklet,
John Baily,
William Lever,
James Damask,
William Plumsted.’
This verdict the mayor and recorder resented at so high a rate, that they exceeded the bounds of all moderation and civility; and the recorder said, ‘Gentlemen, you shall not be dismissed till we have a verdict, that the court will accept; and you shall be locked up, without meat, drink, fire, and 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.’
Now, though the jury had given in their verdict, and signified that they could give no other, yet all was in vain; and W. Penn seeing how they were treated against all reason, said, ‘My jury, who are my judges, ought not to be thus menaced; their verdict should be free, and not compelled; the bench ought to wait upon them, but not forestal them. I do desire that justice may be done me, and that the arbitrary resolves of the bench may not be made the measure of my jury’s verdict.’ This modest speech so incensed the recorder, that he cried, ‘Stop that prating fellow’s mouth, or put him out of the court.’ And the lord mayor said to the jury, ‘You have heard that he preached, that he gathered a company of tumultuous people, and that they do not only disobey the martial power, but the civil also.’ To which W. Penn returned, ‘That 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, first, 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 leave. And, secondly, because it was no new thing, nor with the circumstances expressed in the indictment, but what was usual and customary with us. It is very well known that we are a peaceable people, and cannot offer violence to any man.’
The court now being resolved to send the prisoners to their jail, and the jury to their chamber, Penn spoke as followeth: ‘The agreement of twelve men is a verdict in law, and such an 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 contradictory to this, I affirm they are perjured men in law.’ And looking upon the jury, said, ‘You are Englishmen, mind your privilege; give not away your right.’ To which E. Bushel, one of them, returned, ‘Nor will we ever do it.’ Another of the jurymen pleaded indisposition of body, and therefore desired to be dismissed; but the lord mayor said, ‘You are as strong as any of them; starve then, and hold your principles.’ To which the recorder added, ‘Gentlemen, you must be content with your hard fate; let your patience overcome it; for the court is resolved to have a verdict, and that before you can be dismissed.’ And though the jurymen said, ‘We are agreed, we are agreed, we are agreed,’ yet the court swore several persons, to keep the jury all night, without meat, drink, fire, or any other accommodation; nay, they had not so much as a chamber-pot, though desired. Thus force and violence prevailed. The next day, though it was the first of the week, vulgarly called Sunday, the court sat again; and the prisoners being brought to the bar, the jury were called in, and their foreman was asked, ‘Is William Penn guilty of the matter whereof he stands indicted, in manner and form aforesaid, or not guilty?’ To which he answered as before, ‘William Penn is guilty of speaking in Gracechurch-street.’ The lord mayor then asking, ‘to an unlawful assembly?’ Edward Bushel answered, ‘No, my lord, we give no other verdict than what we gave last night; we have no other verdict to give.’ ‘You are,’ returned the lord mayor, ‘a factious fellow: I will take a course with you.’ ‘I have,’ said Bushel, ‘done according to my conscience.’ This so displeased the mayor, that he said, ‘That conscience of yours would cut my throat; but I will cut yours so soon as I can.’ To which the recorder added, ‘He has inspired the jury; he has the spirit of divination; methinks I feel him: I will have a positive verdict, or you shall starve for it.’