Then W. Penn said, ‘I desire to ask the recorder one question: do you allow of the verdict given of W. Mead?’ to which the recorder answered, ‘It cannot be a verdict, because you are indicted for a conspiracy; and one being found not guilty, and not the other, it cannot be a verdict.’ This made Penn say, ‘If not guilty be not a verdict, then you make of the jury and Magna Charta but a mere nose-of-wax.’ ‘How!’ asked W. Mead then, ‘Is not guilty no verdict?’ ‘No,’ said the recorder, ‘It is no verdict.’ To which Penn replied, ‘I affirm that the consent of a jury is a verdict in law; and if W. Mead be not guilty, it consequently follows, that I am clear, since you have indicted us of conspiracy, and I could not possibly conspire alone.’ After this, the court spoke to the jury, and caused them to go up again, if possible to extort another verdict from them. Then the jury being called, and asked by the clerk, ‘What say you? is William Penn guilty of the matter whereof he stands indicted, in manner and form aforesaid, or not guilty?’ The foreman answered, ‘Guilty of speaking in Gracechurch-street.’ To which the recorder returned, ‘What is this to the purpose? I say I will have a verdict.’ And speaking to E. Bushel, said, ‘You are a factious fellow, 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.’ To this the mayor added, ‘Have you no more wit than to be led by such a pitiful fellow? I will cut his nose.’
Thus the court endeavoured to baffle the jury; and therefore it was not without very good reason that W. Penn said, ‘It is intolerable that my jury should be thus menaced: is this according to the fundamental laws? are not they my proper judges by the great charter of England? what hope is there of ever having justice done, when juries are threatened, and their verdict is rejected? I am concerned 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 seek to condemn such for factious fellows, who answer not your ends? unhappy are those juries, who are threatened to be fined, starved, and ruined, if they give not in their verdicts contrary to their consciences.’ These plain expressions so troubled the recorder, that he said to the lord mayor, ‘My lord, you must take a course with this fellow.’ And then the mayor cried, ‘Stop his mouth; jailer, bring fetters, and stake him to the ground.’ To which W. Penn said, ‘Do your pleasure; I matter not your fetters.’ The recorder then ventured to say, ‘Till now I never understood the reason of the policy and prudence of the Spaniards in suffering the Inquisition among them. And certainly it never will be well with us, till something like the Spanish Inquisition be in England.’ The jury being required to find another verdict, and they saying they could give no other, the recorder grew so angry, that he said, ‘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 of the law. Your verdict is nothing, you play upon the court. I say, you shall go together, and bring in another verdict, or you shall starve, and I will have you carted about the city, as in Edward the third’s time.’
The jury refusing to give in another verdict, since they had all agreed to that which they had given, and showing themselves unwilling to go up again, the lord mayor bid the sheriff to make them go. The sheriff then coming off his seat, said, ‘Come, gentlemen, you must go up; you see I am commanded to make you go.’ Upon which the jury went up, and several were sworn to keep them without accommodation as aforesaid, till they brought in their verdict: and the prisoners were remanded to Newgate, where they remaining till next morning were then brought to the court again: and being set to the bar, and the jury called, and asked, ‘Is William Penn guilty of the matter whereof he stands indicted in manner and form, &c. or not guilty?’ the foreman answered, ‘You have there read in writing already our verdict, and our hands subscribed.’ Now the clerk who had that paper, was by the recorder stopped from reading it; and it was said by the court, that paper was no verdict. Then the clerk asked, ‘How say you? Is William Penn guilty, &c. or not guilty?’ to which the foreman answered, ‘Not guilty.’ The same question being put concerning W. Mead, the foreman answered likewise, ‘Not guilty.’ The jury then being asked by the clerk, whether they said so all, they answered, ‘We do so.’ The bench still unsatisfied, commanded that every person should distinctly answer to their names, and give in their verdict, which they unanimously did, in saying, ‘Not guilty.’ The recorder, who could not hear this, said, ‘I am sorry, gentlemen, you have followed your own judgments and opinions, rather than the good and wholesome advice which was given you. God keep my life out of your hands: but for this the court fines you forty marks a man, and imprisonment till paid.’
W. Penn then stepping up towards the bench, said, ‘I demand my liberty, being freed by the jury.’ ‘No,’ said the lord mayor, ‘you are in for your fines.’ ‘Fines!’ returned Penn, ‘for what?’ ‘For contempt of the court,’ said the lord mayor. ‘I ask,’ replied Penn, ‘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? since it expressly contradicts the 14th and 29th chapters of the great charter of England, which say, ’No freeman ought to be amerced but by the oath of good and lawful men of the vicinage.‘ Instead of answering to this question, the recorder cried, ’take him away, take him away; take him out of the court.‘ On which W. Penn said, ’I can 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 for all these things.’ W. Penn was not suffered to speak any more, but he and W. Mead were hauled to the bail-dock, and from thence sent to Newgate, and so were their jury. How they came at length to be freed, I do not know.
The trial was afterwards published in print more at large than is set down here, and an appendix subjoined to it; in which are showed not only the invalidity of the evidence, but also the absurdity of the indictment, and the illegal proceedings of the court; and from the great charter, that they had been dealt with contrary to law. The case of the lord chief justice Keeling is also mentioned, who having put restraints upon juries, a committee of parliament, the 11th of December, 1667, came to this resolution, ‘That his proceedings were innovations, in the trial of men for their lives and liberties; and that he had used an arbitrary and illegal power, which was of dangerous consequence to the lives and liberties of the people of England, and tended to the introducing an arbitrary government. Moreover, that in the place of judicature he had undervalued, vilified and condemned Magna Charta. And therefore, that he should be brought to trial, in order to condign punishment, in such manner as the house shall judge most fit and requisite.’ Two days after, viz. Die veneris, the 13th of December, it was resolved, that the precedents and practice of fining or imprisoning jurors for verdicts is illegal. The book containing the fore-mentioned trial of W. Penn and W. Mead was reprinted I think more than once; for it came to be much in request, because the liberties of the people were therein well defended, and arbitrary power controlled. The title of it was, The People’s Ancient and Just Liberties asserted; and underneath was added this well known verse of Juvenal,
Sic volo, sic jubeo; stat pro ratione voluntas.
This matter was more circumstantially treated of in a book in print, by Thomas Rudyard a lawyer, who showed therein at large the right of juries, and the unlawfulness of the proceedings then in vogue; which he made appear plainly, both from law, and by citations from the books of eminent lawyers. And having sometimes vigorously pleaded the cause of the oppressed, he also became the object of persecuting fury, which could not endure his faithful defending of the innocent. And therefore this summer the magistrates of London issued out a warrant to break open his house in the dead of the night, in order to apprehend him; and this warrant was executed by the soldiers of one captain Holford; and the next day he was sent to Newgate by a mittimus under the hands and seals of the lord mayor Samuel Starling, William Peak, Robert Hanson, and several others, under pretence, that he stirred up persons to disobedience of the laws, and abetted and encouraged such as met in unlawful and seditious conventicles, contrary to the late act. But his case being brought before the justices of the court of Common Pleas, at Westminster, by an habeas corpus, that court, after solemn debate, gave their judgment, that Thomas Rudyard was unjustly imprisoned, and unjustly detained. And so he was set at liberty. But the lord mayor Samuel Starling fretting at this discharge, found out new stratagems to compass his ends upon him. For an indictment was formed against him for having hindered due course of law against one Samuel Allingbridge. But Rudyard so well defended himself, that he was acquitted; which so incensed the lord mayor, that not long after he was again committed to Newgate, on a religious account, viz. for having been in the meeting at Whitehart-court in Gracechurch-street. The proceedings against him and others on that account were no less arbitrary than those against W. Penn and W. Mead, already mentioned, and therefore Rudyard exposed his and their trials in print; and seeing he understood the law, he was the more able to show the unjustness of these proceedings, and how inconsistent such prosecutions were with the laws of the land.
But to avoid prolixity I shall relate but little of them, since many things occur therein, which have been mentioned already in other cases. How the recorder Howel was inclined in respect to religion, may be deduced from what hath been said already of his panegyric upon the Spanish Inquisition. And to Rudyard and his fellow-prisoners, he gave no obscure evidence what religion he preferred; for they saying, that they were always quiet and peaceable in their assemblies, and that the laws against riots were never intended against them, but popish, or such like disturbers of the peace. The recorder returned, that the Papists were better subjects to the king, than they were; and that they were a stubborn and dangerous people, and must either be brought under, or there was no safe living by them. The prisoners offering to vindicate themselves from these odious and foul aspersions, were not suffered to say any thing in their own defence; but instead of hearing them, they were by order of the lord mayor and the recorder thrust into the bail-dock, and treated almost at the same rate as W. Penn and W. Mead had been before.
But violence prevailed now; and the recorder, because of his outrageous behaviour against the Quakers, was so much in favour of the court of justice, that alderman Jo. Robinson did not stick to tell them, that the recorder deserved an hundred pounds for his service done at the Old Bailey, the last sessions. And his proposal so took, that the court consented to pay him for the said service an hundred pounds, by the chamberlain of London. And since this was so well known to T. Rudyard, that in a book he published, he named the date of the said order, viz. the 8th of October, 1670: and that other orders had been given for two hundred pounds more to him, within eight months last past; he, to reprehend such doings in a satirical way, called them, ‘an excellent way to ease the treasury of being over-burdened with orphans’ money,’ by which sinister ends, and dispositions of its cash, the chamber was so deeply in debt, that it was almost incredible.
Now, since Rudyard as a lawyer, had a more full knowledge of these unlawful proceedings against him and his friends, than many others, he composed a treatise of those prosecutions, which he called the Second Part of the People’s Ancient and Just Liberties asserted. And true lovers of their country were pleased with it: for that party which countenanced popery, and therefore endeavoured to violate the people’s rights, strove to get the upper hand.