From: Howell's State Trials, Vol. 6, Page 951 (6 How. 951).

http;//www.constitution.org/trials/penn/penn-mead.htm





230. The Trial of William Penn and William Mead, at the Old Bailey, for a 

Tumultuous Assembly: 22 Charles II. A. D. 1670. [Written by themselves.][1]



[To the account printed in 1670 there is this Introduction : "As there can 

be no observation where there is no action; so it is impossible, there 

should be a judicious intelligence, without due observation. And since there 

can be nothing more seasonable than a right information, especially of 

Public Acts; and well knowing, how industrious some will be, to mis-

represent this Trial to the disadvantage of the cause and prisoners, it was 

thought requisite, in defence of both, and for the satisfaction of the 

people, to make it more public; nor can there be any business wherein the 

people of England are more concerned, than in that which relates to their 

civil and religious liberties, questioned in the persons above named, at the 

Old-Bailey, the 1st, 3rd, 4th, and 5th, of Sept. 1670."]



PRESENT, Sam. Starling, mayor; Tho. Howell, recorder; Tho. Bludworth, 

William Peak, John Robinson, Richard Ford, and Joseph Sheldon, aldermen; 

John Smith and James Edwards, sheriffs; and Richard Browne.



Cryer. 'O Yes! Thomas Veer, Edward Bushel, John Hammond, Charles Milson, 

Gregory Walklet, John Brightman, William Plumsted, Henry Henley, Thomas 

Damask, Henry Michel, William Lever, John Baily, 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 sets forth, 'That William Penn, Gent. and William Mead, late 

of London, linen draper, with divers other persons to the jurors unknown, to 

the number of 300, the 14th 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-church in Bridge-ward, London, in the 

street called Grace-church street, unlawfully and tumultuously did assemble 

and congregate 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 jurors aforesaid unknown, then and there 

so assembled and congregated together; the aforesaid William Penn, by 

agreement 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 

aforesaid, 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 continue, in contempt of the said lord the 

king, and of his law, to the great disturbance of his peace; to the great 

terror and disturbance of 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 aforesaid, or Not Guilty?



Penn. It is impossible that we should be able to remember the Indictment 

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 shall answer directly, I request two things of the court. 1. That no 

advantage may be taken against me, nor I deprived of any benefit, which I 

might otherwise have received. 2. 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.



Clerk. 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 William Penn.



Court, You shall have it.



Mead. Then I plead Not Guilty in manner and form.



The Court adjourned until the afternoon.



Crier. O Yes, &c.



Clerk. Bring William Penn and William Mead to the bar.



Obser. The said Prisoners were brought, but were set aside, and other 

business prosecuted. Where we cannot choose but observe, that it was the 

constant and unkind practices 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 adjourned to the third 

instant.



The 3d of September, 1670, the court sat.



Crier. O Yes, &c.



Clerk. Bring William Penn and William Mead to the bar.



Mayor. Sirrah, who bid you put off their hats? put on their hats again.



Obser. Whereupon one of the officers putting the prisoners hats upon their 

heads (pursuant to the order of the court) brought them to the bar.



Record. Do you know where you are?



Penn. Yes.



Record. Do not you know it is the king's court,



Penn. I know it to be a court, and I suppose it to be the king's court.



Record. Do you not know there is respect due to the court ?  



Penn. Yes.



Record. Why do you not pay it then?



Penn. I do so.



Record. Why do you not pull off your hat then?



Penn. Because I do not believe that to be any respect.



Record. Well, the court sets forty marks a piece upon your heads, as a fine 

for your contempt of the court.



Penn. I desire it might be observed, that, we came into the court with our 

hats off (that is, taken off,) and if they have been put on since, it was by 

order from the bench; and therefore not we, but the bench should be fined.



Mead. I have a question, to ask the Recorders am I fined also?



Record. Yes.



Mead. I desire the Jury, and all people to take notice of this injustice of 

the recorder: Who spake to me to pull off my hat? and yet hath he put a fine 

upon my head. O fear the Lord, and dread his power, and yield to the 

guidance of his holy spirit, for he is not far from every one of you.



                    The Jury sworn again.



Obser. J. Robinson, lieutenant of the Tower, disingenuously objected against 

Edward Bushel, as if he had not kissed the book, and therefore would have 

him sworn again: though indeed it was on purpose to have made use of his 

tenderness of conscience in avoiding reiterated oaths, to have put him by 

his being a juryman, apprehending him to he a person not fit to answer their 

arbitrary ends. The Clerk, read the Indictment, as aforesaid.



Clerk. Crier, call James Cook into the court, give him his oath.



Clerk. James Cook, lay your hand upon the book : ' The evidence you shall 

give to the court, betwixt our sovereign the king, and the prisoners at the 

bar, shall be the truth, and the whole truth, and nothing but the truth. So 

help you God.'



Cook. I was sent for, from the Exchange, to go and disperse a meeting in 

Gracechurch-Street, where I saw Mr. Penn speaking to the people, but I could 

not hear what he said, because of the noise: I endeavoured to make way to 

take him, but I could not get to him for the crowd of people; upon which 

capt. Mead came to me, about the kennel of the street, and desired me to let 

him go on; for when he had done, he would bring Mr. Penn to me.



Court. What number do you think might be there?



Cook. About three or four hundred people.



Court. Call Richard Read, give him his oath.



Read being sworn was asked, What do you know concerning the prisoners at the 

bar?



Read. My lord, I went to Gracechurch-Street, where I found a great crowd of 

people, and I heard Mr. Penn preach to them; and I saw capt. Mead speaking 

to lieutenant Cook, but what he said, I could not 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 saith he heard him preach, and yet 

saith, he doth not know what he said.



Jury take notice, he swears now a clean contrary thing to what he swore 

before the mayor when we were committed: for now he swears that he saw me in 

Gracechurch-Street, and yet swore before the mayor, when I was committed, 

that he did not see me there. I appeal to the mayor himself, if this be not 

true. But no answer was given.



Court. What number do you think might be there?



Read. About four or five hundred.



Penn. I 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 I 

never saw him.



Cler. Crier, call  into the court.



Court. Give him his oath. . My lord, I saw a great number of people, and 

Mr. Penn, I suppose, was speaking; I saw him make a motion with his hands, 

and heard some noise, but could not understand what he said. But for capt. 

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 accusare seipsum,' which 

if it be not true Latin, I am sure it is true English, 'That no man is bound 

to accuse himself.' And why dost thou offer to insnare me with such a 

question? Doth not this shew thy malice? Is this like unto a judge, that 

ought to be counsel for the prisoner at the bar?



Rec. Sir, hold your tongue, I did not go about to insnare you.



Penn. I desire we may come more close to the point; and that silence be 

commanded in the court.



Crier. 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 

account; 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 charge; and to the end the bench, the jury, and myself, with 

these that hear us, may have a more direct understanding of this procedure, 

I desire you would let me know by what law it is you prosecute me, and upon 

what law you ground my indictment.



Rec. Upon the common-law.



Penn. Where is that common-law?



Rec. You must not think that I am able to run up so many years, and over so 

many adjudged cases, which we call common-law, to answer your curiosity.



Penn. This answer I am sure is very short of my question, for if it be 

common, it should not be so hard to produce.



Rec. Sir, will you plead to your indictment?



Penn. 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 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 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 merely arbitrary.



Obser. 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 Indictment?



Penn. 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 

is 'Lex non scripta,' that which many have studied 30 or 40 years to know, 

and would you have me to tell you in a moment?



Penn. Certainly, if the common law be so hard to be understood, 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-Privileges: confirmed 9 Hen. 3, 29, 25 Edw. 1, 12 

Ed. 3, 8 Coke 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.



Penn. I have asked but one question, and you have not answered me ; though 

the rights and privileges of every Englishman be concerned in it.



Rec. If I should suffer you to ask questions till to-morrow morning, you 

would be never the wiser.



Penn. That is according as the answers are.



Rec. Sir, we must not stand to hear you talk all night.



Penn. I design no affront to the court, but to be heard in my just plea: and 

I must plainly tell you, that if you will deny me Oyer of that law, which 

you suggest I have broken, you do at once deny me an acknowledged right, and 

evidence to the whole world your resolution to sacrifice the privileges of 

Englishmen to your sinister and arbitrary designs.



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 into the bale-dock.



Penn. These are but so many vain exclamations; is this justice or true 

judgment? Must I therefore be taken away because I plead for the fundamental 

laws of England? However, this I leave upon your consciences, who are of the 

jury (and my sole judges,) that if these ancient fundamental laws, which 

relate to liberty and property, (and are not limited to particular 

persuasions in. matters of religion) must not be indispensably maintained 

and observed, who can say he hath right to the coat upon his back? Certainly 

our liberties are openly to be invaded, our wives to be ravished, our 

children slaved, our families ruined, and our estates led away in 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 wherein I am so much concerned, and 

not only myself, but many ten thousand families besides.



Obser. They having rudely haled him into the Bale-dock, William Mead they 

left in court, who spake as followeth.



Mead. You men of the jury, here I do now stand, to answer to an Indictment 

against me, which is a bundle of stuff, full of lies and falshoods; 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 is a very proper question what William Penn 

demanded in this case, an oyer of the law, on which our Indictment is 

grounded.



Rec. I have made answer to that already.



Mead, turning his face to the jury, saith,You men of the jury, who are my 

judges, if the Recorder will not 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.



Obser. 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 independant, another while some 

other religion, and now a quaker, and next a papist.



Mead. 'Turpe est doctori cum culpa redarguit ipsum.'



May. You deserve to have your tongue cut out.



Rec. If you discourse on this manner, I shall take occasion against you.



Mead. Thou didst promise me, I should have fair liberty to be heard? why may 

I not have the privilege of an Englishman? I am an Englishman, and you might 

be ashamed of this dealing.



Rec. 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. The Lord is judge between me and thee in this matter.



Obser. Upon which they took him away into the Bale-dock, and the Recorder 

proceeded to give the Jury their charge, as followeth:



Recorder. 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.



Obser. The prisoners were put out of the court into the Bale-dock, and the 

charge given to the jury in their absence, at which W. 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 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 Instit. 29. on 

the chap. of Magna Charta.



Obser. The Recorder being thus unexpectedly lashed for his extra judicial 

procedure, said with an enraged smile.



Rec. Why, ye are present, you do hear, do you not?



Penn. No thanks to the court, that commanded me into the Bale-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 last ten 

or twelve material points to offer, in order to invalidate their Indictment.



Rec. Pull that fellow down, pull him down.



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, and the jury to have their charge given them in our absence? I say 

these are barbarous and unjust proceedings.



Rec. 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 and I think you 

(i. e. the jury) yourselves would be tired out, and not have patience to 

hear them.



Obser. The Jury were commanded up to agree upon their verdict, the prisoners 

remaining in the stinking hole. After an hour and a half's time eight came 

down agreed, but four remained above; the court sent an officer for them, 

and they accordingly came down. The Bench used many unworthy threats to the 

four that dissented; and the Recorder, addressing himself to Bushel, said, 

'Sir, you are the cause of this disturbance, and manifestly shew yourself an 

abettor of faction; I shall set a mark upon you, Sir.'



J. Robinson. Mr. Bushel, I have known you near this 14 years; you have 

thrust yourself upon this jury, because you think there is some service for 

you: I tell you, you deserve to be indicted more than any man that hath been 

brought to the bar this day.



Bushel. No, sir John, there were threescore before me, and I would willingly 

have got off, but could not.



Bloodw. I said, when I saw Mr. Bushel, what I see is come to pass, for I 

knew he would never yield. Mr. Bushel, we know what you are.



May. Sirrah, you are an impudent fellow, I will put a mark upon you.



Obser. They used much menacing language, and behaved themselves very 

imperiously to the jury, as persons not more void of justice than sober 

education: After this barbarous usage, they sent them to consider of 

bringing in their verdict, and after some considerable time they returned to 

the Court. Silence was called for, and the jury called by their names,



Cler. Are you agreed upon your verdict?



Jury. Yes.



Cler. Who shall speak for you ?



Jury. Our Foreman.



Clerk. Look upon the prisoners at the bar; 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 Grace-church street.



Court. Is that all ?



Foreman. That is all I have in commission.



Rec. You had as good say nothing.



May. Was it not an unlawful assembly? You mean he was speaking to a tumult 

of. people there?



Foreman. My Lord, This is all I had in commission.



Obser. 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 Bloodworth took great occasion to 

vilify them with most opprobrious language; and this verdict not serving 

their turns, the Recorder expressed himself thus:



Rec. The law of England will not allow you to part till you have given in 

your Verdict.



Jury. We have given in our Verdict, and we can give in no other.



Rec. Gentlemen, you have not given in your Verdict, and you had its good say 

nothing; therefore go and consider it once more, that we may make an end of 

this troublesome business.



Jury. We desire we may have pen, ink, and paper.



Obser. The Court adjourned for half an hour; which being expired, the Court 

returns, and the Jury not long after.



The Prisoners were brought to the bar, and the Jury's names called over.



Clerk. Are you agreed of your Verdict?



Jury. Yes.



Clerk. Who shall speak for you?



Jury. Our Foreman.



Clerk. What say you? Look upon the prisoners: Is William Penn Guilty in 

manner and form, as he stands indicted, or Not Guilty?



Foreman. Here is our Verdict; holding forth a piece of paper to the clerk of 

the peace, which follows.



     '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 Henley, Charles 

     Milson, Gregory Walklet, John Baily, William Lever, Henry Michel, John 

     Bnghtman, James Damask, Wil. Plumsted.



Obser. This both Mayor and Recorder resented at so high a rate, that they 

exceeded the bounds of all reason and civility.



Mayor. What, will you be 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.



Recorder. 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.



Penn. 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.



Recorder. Stop that prating fellow's mouth, or put him out of the court.



Mayor. 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 

civil also.



Penn. 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 their soldiers would give us leave ; and (2dly) 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.



Obser. The court being ready to break up, and willing to huddle the 

prisoners to their gaol, and the jury to their chamber, Penn spoke as 

follows:



Penn. The agreement of 12 men is a verdict in law, and such 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 

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.



Bush. &c. Nor will we ever do it.



Obser. One of the jury-men pleaded indisposition of body, and therefore 

desired to be dismissed.



Mayor. You are as strong as any of them; starve them; and hold your 

principles.



Recorder. Gentlemen, You must be contented 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.



Jury. We are agreed, we are agreed, we are agreed.



Obser. The court swore several persons, to keep the Jury all night without 

meat, drink, fire, or any other accommodation; they had not so much as a 

chamber pot, though desired.



Crier. O Yes, &c.



Obser. The court adjourns till 7 of the clock next morning (being the 4th 

instant, vulgarly called Sunday, at which time the prisoners were brought to 

the bar: The court sat, and the Jury called to bring in their verdict.



Crier. O Yes, &c.  Silence in the court, upon pain of imprisonment.



The Jury's names called over:



Clerk. Are you agreed upon your verdict?



Jury. Yes.



Clerk. Who shall speak for you?



Jury. Our foreman.



Clerk. What say you? Look upon the prisoners at the bar; 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 in Gracechurch-Street.



Mayor. To an unlawful assembly?



Busk. 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 you.



Blood. I knew Mr. Bushel would not yield.



Bush. Sir Thomas, I have done according to my conscience.



Mayor. That conscience of yours would cut my throat.



Bush. No, my lord, it never shall.



Mayor. But I will cut yours so soon as I can.



Recorder. 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.



Penn. I desire to ask the Recorder one question, Do you allow of the verdict 

given of William Mead?



Recorder. It cannot be a verdict, because you were 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 the jury and Magna 

Charta but a mere nose of wax.



Mead. How! is Not Guilty no verdict?



Rec. No, it is no Verdict.



Penn. I affirm, that the consent of a jury is a Verdict in law; and if 

William Mead be Not Guilty, it consequently follows, that I am clear, since 

you have indicted us of a conspiracy, and I could not possibly conspire 

alone,



Obser. 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.



Cry. O Yes, &c. Silence in the Court.



Court. Call over the Jury. Which was done.



Clerk. What say you? Is William Penn Guilty of the matter whereof he stands 

indicted, in manner and form aforesaid, or Not Guilty?



Forem. Guilty of speaking in Gracechurch-street.



Rec. What is this to the purpose? I say, I will have a verdict. And speaking 

to Edw. 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.



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 he 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 verdicts 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 

seem to condemn 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 Verdicts contrary to their consciences.



Rec. My lord, you must take a course with that same fellow.



Mayor. Stop his mouth; gaoler, bring fetters, and stake him to the ground.



Penn. Do your pleasure, I matter not your fetters.



Rec. Till now I never understood the reason of the policy and prudence of 

the Spaniards, in suffering the inquisition among them: And certainly it 

will never be well with us, till something like unto the Spanish inquisition 

be in England.



Obser. 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 returned, and 

directed himself unto the Jury, and spoke as followeth:



Rec. Gentlemen, we shall not be at this trade 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. Mr. Lee, draw up 

another Verdict, that they may bring it in special.



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.



Rec. 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 3rd's time.



Forem. 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.



Offic. My Lord, they will not go up.



Obser. The Mayor spoke to the sheriff, and he came off his seat, and said,



Sher. Come, gentlemen, you must go up; you see I am commanded to make you 

go.



Obser. Upon which the Jury went up; and several sworn to keep them without 

any accommodation, as aforesaid, till they brought in their Verdict.



Cry. O yes, &c. The Court adjourns till tomorrow morning, at 7 o'clock.



Obser. The prisoners were remanded to Newgate, where they remained till next 

morning, and then were brought unto the Court, which being sat, they 

proceeded as followeth.



Cry. O yes, &c. Silence in the Court, upon pain of imprisonment.



Cler. Set William Penn and William Mead to the bar. Gentlemen of the Jury, 

answer to your names; Tho. Veer, Edw. Bushel, John Hammond, Henry Henly, 

Henry Mitchell, John Bnghtman, Charles Milson, Gregory Walklet, John Baily, 

William Leaver, James Damask, William Plumstead. Are you all agreed of your 

Verdict? 



Jury. Yes.



Cler. Who shall speak for you?



Jury. Our foreman.



Cler. Look upon the prisoners. What say you? Is William Penn Guilty of the 

matter whereof he stands indicted, in manner and form, &c. or Not Guilty?



Foreman. Here is our Verdict in writing, and our hands subscribed.



Obser. The clerk took the Paper, but was stopt by the Recorder from reading 

of it; and he commanded to ask for a positive Verdict.



Foreman. That is our Verdict; we have subscribed to it.



Cler. How say you? is William Penn Guilty, &c. or Not Guilty.



Foreman. Not Guilty.



Cler. How say you? is William Mead Guilty, &c. or Not Guilty?



Foreman. Not Guilty.



Cler. Then hearken to your Verdict; you say that William Penn is Not Guilty 

in manner and form as he stands indicted; you say that William Mead is Not 

Guilty in manner and form as he stands indicted, and so you say all?



Jury. Yes, we do so.



Observ. The Bench being unsatisfied with the Verdict, commanded that every 

person should distinctly answer to their names, and give in their Verdict, 

which they unanimously did in saying, Not Guilty, to the great satisfaction 

of the assembly.



Rec. 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[2] the Court fines you 40 marks 

a man; and imprisonment till paid. At which Penn stept up towards the bench, 

and said:



Penn. I demand my liberty, being freed by the Jury.



Mayor. No, you are in for your fines.



Penn. Fines, for what?



Mayor. For contempt of the Court.



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; 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.



Rec. Take him away, take him away, take him out of the Court.



Penn. 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 all for these things.



Observ. They hauled the prisoners into the Bale-dock, and from thence sent 

them to Newgate, for non-payment of their fines; and so were their Jury. But 

the Jury were afterwards discharged upon an Habeas Corpus, returnable in the 

Common-Pleas, where their commitment was adjudged illegal.



See the next Case.







The following Article was subjoined to the account of this Trial printed in 

1670:



An APPENDIX by way of DEFENCE for the prisoners, as what might have been 

offered against the Indictment and illegal Proceedings of the Court thereon, 

had they not violently over-ruled and stopped them.



UPON a sober disquisition into the several parts of the Indictment, we find 

it so wretchedly defective, as if it were nothing else but a mere 

composition of error, rather calculated 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 discover the arbitrary 

proceedings of the bench in their frequent menaces 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.



Sec. 1. It is the constant common law of England, that no man should be 

taken, imprisoned, amerced, disseized of his free-hold, of his liberties or 

free customs, but by the judgment of his peers, which are vulgarly called a 

Jury, from Jurare, because they are sworn to do right.



Sec. 2. The only assistance that is given the Jury, in order to a verdict, 

is:



First, the Evidence given of the fact committed, by the person indicted.



Secondly, the knowledge of that law, act of statute the Indictment is 

grounded upon, and which the prisoners are said to have transgressed.



Sec. 3. We shall neglect to mention here how much they were deprived of that 

just advantage the ancient equal laws of England do allow, designing it for 

a conclusion of the whole, and shall only speak here to matter of fact and 

law.



Sec. 4. The evidence, you have read in the trial, the utmost import of 

which, is no more than this; That William Penn was speaking in Gracious-

street, to an assembly of people, but 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, physic, trade, or any other matter 

of civil concernment. Besides there is no law against preaching what is 

truth; whether it be in the street, or 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.



Sec. 5. The evidence further saith, that William Mead was there, but till 

being in Gracious street be a fault, and hearing a man speak the witness 

knows not what, be contrary 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.



Sec. 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.



Sec. 7. [That they met with force and arms] which is so great a lye, that 

the court had no better cover for it, than to tell the jury, it was only a 

piece of form, urging that the 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 considered, that the same words may be used more of course, and 

out of form at one time, than at another; And though we grant they can have 

little force with any jury in a clipper's case for meer clipping; yet they 

are words that give so just a ground of jealousy, nay, that carry so clear 

an evidence of illegality where they are truly proved and 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.



Sec. 8. [Unlawfully and tumultuously to disturb the peace] which is as true, 

as what is said before, (that is, as false) this will evidently appear to 

ail that consider how lawful it is to assemble, with no other design than to 

worship God, and their calling a lawful assembly an unlawful one, no more 

makes it so, than to say light is darkness, black is white, conclude so 

impudent a falsity true.



In short, because to worship God can never be a crime, no meeting or 

assembly, designing to worship God, can be unlawful. Such as go about to 

prove an unlawful assembly must prove the assemblers intent not to worship 

God, but that no man can do, because no man can know another man's 

intentions, and therefore its impossible that any should prove such an 

assembly unlawful. That is properly an unlawful assembly, according to the 

definition of the 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, which 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 the duty they owe to 

God.



[Tumultuously] 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 a tumultuous action, or meeting in the 

sense expressed (and which is the very definition of the law) will be the 

question. Certainly such as call these meetings tumultuous, as to break the 

peace, offer the greatest violence to common words, that can be well 

imagined: for they may as rightly say, such persons meet adulterously, 

thievishly, &c. as to affirm they meet tumultuously, because they are as 

truly applicable; in short, such particulars, as are required to prove them 

such meetings in law, are wholly wanting.



Sec 9. [To the disturbance of the peace.] If the disturbance of the peace be 

but matter of form with the rest, as is usually pleaded; leave out this 

matter of form and then see what great matter will be left.



Certainly such assemblies, as are not to the breach and disturbance of the 

pence, are far from being unlawful or tumultuary; but if the peace be broken 

by them, how comes it the evidence was so short? We cannot believe it was in 

favour of the prisoners. This may shew all the reasonable world, how forward 

some are to brand innocency with hateful names, to bring a suspicion, where 

there was none deserved.



Sec. 10. [That the said Penn and Mead met, by agreement before hand made.]



But if persons that never saw each other, nor converse 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 from an agreement; 

for they had never seen, conversed, nor corresponded, directly, nor 

indirectly, before the officers came to disturb the assembly: We well know 

how far they would have stretched the word 'Agreement, or Conspiracy;' but 

God who brings to nought the councils of the wicked, prevented their cruel 

designs.



Sec. 11. [That William Mead did abet the said William Penn in preaching.]



No man can be said to abet another, whilst they are.both unknown to each 

other, especially in this case, where abetting follows agreeing, and 

agreeing supposes fore-knowledge. Nay the word abet in law signifies to 

command, procure or counsel a person, which W. Mead, could not be said to 

do, in reference to W. Penn, they being so great strangers one to another, 

and at so great a distance; for the evidence proves that he was with 

lieutenant Cook, and lieutenant Cook swears he could not make his way to W. 

Penn, for the croud.



Sec. 12. [That W. Penn's preaching and speaking caused a great concourse and 

tumult of people, to remain and continue 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 implies a disorderly multitude, 

where all may be said to speak, rather than any to hear.



Sec. 1. [In contempt of the king and his laws.]



They are so far from contemning the king and his 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 the Lord for man's sake, which is the 

question in hand. Besides, their continuance there, was not in contempt, but 

by the permission of the chief officer present, that came there by the 

king's authority; nor is it for the honour of the king that such persons 

should be said to act in contempt of his laws, as only meet to honour God 

and his laws.



Sec. 2. [And to the great disturbance of the king's peace.]



It is far from disturbing and breaking the king's peace for men peaceably to 

meet to worship God; for 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 sedition, and 

begetting in people a dislike of the civil government: But that such things 

are not practised by us in our assemblies, either to offer violence to mens' 

persons and estates, or to stir up the people to sedition, or dislike to the 

civil government, is obvious to all that visit our assemblies.



Sec. 3. [To the 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 wretchedly false, we 

should give as just an occasion, to lose our liberties, as our cruel 

adversaries, are ready to take any to deprive us unjustly of them. O! How 

notorious it is to all sober 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, should prove a terror or 

disturbance to the people; certainly, if any such thing should be in 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, hale before 

magistrates, fine, and imprison for matters relating to God's worship; 

neither can they say, we are their precedents: for all those adulterous, 

prodigal, lascivious, drunken, swearing, and profane acts, they daily 

commit, and 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.



Sec. 4. But we can never pass over with silence, nor enough observe the 

detestable juggle of such indictments, which we require all English and 

conscientious men to mind, as they value themselves in the like occasions. 

How little a grain of fact was proved, yet how spacious an 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 merest villains, the most dangerous persons, and 

designing mutually the subversion of the laws, and breach of the peace, to 

the terrifying of the people, &c.



Who can choose but tell them of their romance-indictment, 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 fact, as thinking it unworthy of a king's court, to accuse men in 

terms, not legally, truly, or probably due to the fact, they really had 

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 Volens.



Sec. 5. Had their cruelty and juggle ended here itself, they would have 

spared us the pains of any further observation. But that which we have to 

add, on the prisoners behalf, renders their actions so abominable, in the 

sight of justice, that all honest and ingenious hearts must needs abhor 

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 any further additional explanation (though 

intentionally they meant only of the fact prosed by evidence) yet the bench 

would have extended it to every part of the indictment, and by this impious 

delusion, to have perjured a well meaning jury, and have had their barbarous 

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 Gracious Church-Street, but not of an 

unlawful assembly, so circumstantiated (the mention of which stabbed their 

design of moulding the general answer of Guilty, to their own ends, to the 

heart) nor indeed could they do otherwise; for as well the jury as 

prisoners, were denied to have any law produced, by which they might measure 

the truth of 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 

of the land, which in general, he said, they were indicted for the breach 

of, and which indeed if rightly understood, is the undoubted birthright of 

every Englishman; yea, the inheritance of inheritances, 'Major H�iditas 

venit unicuique nostrum a jure, et Legibus, quam a parentibus.' Coke Instit. 

2. 56.



Sec. 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, by laws; it is our happiness to be born 

under such a constitution, as is most abhorrent in itself, of all arbitrary 

government, and which is, and ever has been, most choice and careful of her 

laws, by which all right is preserved.



Sec. 7. All laws are either fundamental, and so immutable; or superficial 

and so alterable. By the first we understand such laws, as enjoin men to be 

just, honest, virtuous; to do no wrong, to kill, rob, deceive, prejudice 

none; but 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 

revolutions, because no emergency, time, or occasion can ever justify a 

suspension of their execution, much less their utter abrogation.



Sec. 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 relate to victuals, cloaths, and places of trade, &c. which 

have ever stood whilst the reason of them was in force, but when that 

benefit, which once redounded, fell by cross occurrences, they ended 

according to that old maxim, 'cessante ratione legis, cessat lex ;' but this 

cannot be said of fundamental laws, till houses stand without their 

foundation, and English mankind wholly cease to be, which brings close upon 

the point.



Sec. 9. There is not any country, that has more constantly expressed her 

care and deep solicitude to 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 excellent fundamentals, which 

we have before defined and defended from any just reason of revolution; yet 

God Almighty, who is always concerned to avenge the cause of justice, and 

those excellent good laws, by which it is upheld, has by his providence 

befooled their contrivances, and baffled their attempts, by bringing their 

designs to naught, and their persons frequently to condign punishment and 

disgrace, their age no antiquary living can assure us, unless they say, as 

old as reason itself: but our own authors are not lacking to inform us, that 

the liberties, properties and privileges of the English nation are very 

ancient.



Sec. 10. For Hern in his Mirror of Justice (writ in Edward the first's time) 

fol. 1. tells us, "That after God had abated the nobility of the Britons, he 

did deliver the realm to men more humble and simple, of the countries 

adjoining, to wit, the Saxons, which came from the parts of Almaign to 

conquer this land, of which men there were forty sovereigns, which did rule 

as companions; and those princes did call this realm England, which before 

was named the greater Britain: these, after great wars, tribulations and 

pains, by long time suffered, did chuse a king to reign over them to govern 

the people of God, and to maintain and defend their persons, and their good 

in quiet, by the rules of right, and at the beginning they did cause him to 

swear to maintain the holy Christian faith, and to guide his people by 

right, with all his power, without respect of persons, and to observe the 

laws: and after when the kingdom was turned into an heritage, king Alfred, 

that governed this kingdom about 171 years before the conquest, did cause 

the great men of 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 

tune 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."



"In which parliament (saith our author) the rights and prerogatives of the 

kings and of the subjects are distinguished and set apart; and particularly 

by him expressed, too tedious here to insert; amongst which ordinances we 

find, "That no man should be imprisoned, but for a capital offence. And if a 

man should detain another in prison, by colour of right, where there was 

none, till the party imprisoned died; he that kept him in prison should be 

held guilty of murder'' as you may read p. 33, and p. 36. "He is declared 

Guilty of Homicide, by whom a man shall die in prison, whether it be the 

judges, that shall too long delay to do a man right, or by cruelty of 

gaolers, or suffering him to die of famine; or when a man is adjudged to do 

penance, and shall be surcharged by his gaoler with irons, or other pain 

whereof he is deprived 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 party was plevisable; every person was plevisable, but he 

that was appealed of treason, murder, robbery or burglary," p, 35. "None 

ought to be put in common prisons, but only such as were attainted, or 

principally appealed or indicted of some capital offence, or attainted of 

false or wrongful imprisonment; so tender have the ancient laws and 

constitution of this realm been of the liberty of their subjects persons, 

that no man ought to be imprisoned, but for a capital offence, as, treason, 

murder, robbery, or burglary."



Sec. 11. Nor is Lambard short in his excellent translation of the Saxon 

laws, from king Ina's time, 712, to Hen. 3, 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 

chap. of Edward the Confessor's laws, the mention there made of a king's 

duty is very remarkable. That if he break his oath, or performed not his 

obligation 'Nec nomen regis in eo constabit.' The same Lambard farther tells 

us, that however any may affirm William of Normandy to be a conquerer; he 

was received by the people as Edward's successor, and by solemn oath 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 salus 

populi, was suprema lex, or the king's will was the supreme law, and not the 

people's preservation; till the incensed barons of that time, betook 

themselves to a vigorous defence of their ancient rights and liberties, and 

learnt him to keep those laws by a due restraint and timely compulsion, 

which his former invasion of them evidenced to the world he would never have 

done willingly.



Sec. 12. The Proposals and Articles of agreement, with the pledges given to 

the barons, on the behalf of the people by the king, were confirmed in Hen. 

3d's time, his son and successor; when the abused, slighted, and disregarded 

laws, by his father, were thought fit to be reduced to record, that the 

people of England might not for ever after be to seek for a written recorded 

law, to their defence and security; for, 'misera servitus est ubi jus est 

vagum aut incognitum;' and so we enter upon that grand charter of liberty 

and privilege, in the cause, reason, and end of it.



Sect. 1. We shall first rehearse it, so far as we are concerned (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, &c. To all archbishops, or 

earls, barons, sheriffs, provosts, officers, and to all bailiffs, and our 

faithful subjects, who shall see this present charter, greeting. Know ye 

that we unto the honour of Almighty God, and for the salvation of the souls 

of our progenitors, and our successors, kings of England, to the advancement 

of holy church, and amendment of our realm, of our mere and free win have 

given and granted to all archbishops, &c. and to all freemen of this our 

realm, these liberties under written, to be holden and kept in this our 

realm of England for evermore. [9 H. 3. confirmed 28 Ed. 3.]



"We have granted and given to all freemen of our realm, for us, and our 

heirs for evermore these liberties under written, to have and to hold to 

them, and to to their heirs, of us and our heirs fore-named. [Chap. 1. the 

form of ancient acts, &c. Co. 2. Inst. fol. 2.]



"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 him his merchandize; and none of the said amercements shall be 

assessed, but by the oath of good and honest men of the vicinage. [Chap. 

14.]



"No freeman shall be taken, or imprisoned, nor be disseized of his freehold, 

or liberties, or free customs, or be outlawed, 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. [Chap. 29.]



"And to all these customs, liberties aforesaid, which we have granted to be 

holden within this our realm, as much as appertained 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 like 

wise. And for this our gift, and grant of these liberties, and for other 

contained in our charter of liberties of our Forest, the archbishops, 

bishops, abbots, priors, earls, barons, knights, freeholders, and other our 

subjects, have given unto us the fifteenth part of all their moveables; and 

we have granted unto them on the other part, that neither we, nor our heirs, 

shall procure or do any thing whereby the liberties in this charter 

contained shall be infringed or broken; and if any thing be procured by any 

person contrary to the premises, shall be had of no force nor effect. These 

being witnesses, Boniface archbishop of Canterbury, &c. We ratifying and 

approving those gifts and grants aforesaid, confirm and make strong all the 

same, for us and our heirs perpetually, 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 his articles for evermore shall be stedfastly, 

firmly, and inviolably observed. And if any article in the same charter 

contained, yet hitherto peradventure hath not been observed, nor kept, we 

will, and by our authority royal command, from henceforth firmly they be 

observed. Witness, &c."



 The SENTENCE of 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 of May, in the great hall of the 

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, his brother; Roger Bigot, earl of Norfolk marshall of England; 

Humphry, earl of Hereford; Henry earl of Oxford; John, earl Warren; and 

other estates of the realm of England: We Boniface, by the mercy of God, 

archbishop of Canterbury, primate of England, F. of London, H. of Ely, S. of 

Worcester, E. of Lincoln, W. of Norwich, P. of Hereford, W. of Salisbury, W. 

of Durham, R. of Exeter, M. of Carlisle, W. of Bath, E. of Rochester, T. of 

St. Davids, bishops, apparelled in pontificals, with tapers burning, against 

the breakers of the churches liberties, and of the liberties and other 

customs of this realm of England; and namely these which 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 benefits of our holy mother the church we 

sequester all those that hereafter willingly and maliciously deprive or 

spoil the 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 Charters of the common .Liberties, and of 

the Forest, granted by our lord the king to archbishops, bishops, and other 

prelates of England, and likewise to the earls, 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 bring in 

customs to keep them, when they be brought in, against the said liberties, 

or any of them, and all those that shall presume 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 aforesaid 

Sentence ipso facto."



  A confirmation of the charters and liberties of england, and of the 

  forest, made the 25th 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, and the Charter of Liberties, and the Charter 

of Forest, which were made by common assent of all the realm, in the time of 

king Henry our father, shall be kept in every point, without breach; and we 

will that the same Charters shall be sent under our seal, as well to our 

justices of the Forest, as to others, and to all sheriffs 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 Welch of our realm.



"And we will, that if any judgment be given from henceforth, contrary to the 

points of the Charter aforesaid, by the justices, or by any other of our 

ministers that hold plea before them, against the points of the Charters, it 

shall be undone, and holden for naught.



"And we will that the same Charters shall be sent under our seal to 

cathedral churches throughout our realm, there to 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 foresaid Charters, or that in any point do break or undo 

them; And that the said curses be twice a year denounced and published by 

the prelates aforesaid; and it the same prelates, or any of them, be remiss 

in the denunciation of the said sentences, the archbishops 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 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 province 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 enjoin all 

persons, of what estate soever they be, that they, and every of them, as 

much as in them is, shall uphold and maintain 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, or in any 

wise assent to testily 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.



1. The Cause of this famous Charter, was, as we have already said, the 

encroachments that were made by several ministers of precedent kings, that 

almost became customary, and which had never extinguished the free customs 

due to Englishmen: How great care it cost our ancestors, it unbecomes 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 freedoms, 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 works.



2. The Reason of it, is so great, that it seems to be its own. It is the 

very image and expression of justice, liberty, and property; points of such 

eminent importance, as without which no government can be said to be 

reasonable, but arbitrary and tyrannical. It allows every man that liberty 

God and nature have given him, and the secure possession of his property, 

from the inroad or invasion of his neighbour, or any else of that 

constitution. It justifies no man in a fault, only it provides equal and 

just ways to have the offender tried; considering the malice of many 

prosecutors, and the great value of liberty and life.



3. The End of it was the most noble of any earthly projection, to wit, The 

refixing of those shaken laws, held for many hundred years, by constant 

claim, that they living might be reinstated in their primitive liberty, and 

their posterity secured in the possession of so great a happiness.



Amongst those many rich advantages, that accrue to the free people of 

England, from this Great Charter; and those many confirmatory statutes of 

the same, we shall present the Reader with the sight of some few, that may 

most properly fall under the consideration and inquiry of these present 

times, as found in our Common Law books.



1. "That every Englishman is born free."



2. "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 or presentment of good and lawful men where such deeds be done;" 

5 Edw. 3. c. 9. 25 Edw. 3. c. 4. 17 R. 2. c. 6. Rot. Parl. 42 Edw. 3. Coke 2 

Inst.46.



3. "That no freeman shall be disseized of his freehold or liberties, or free 

customs, &c." 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. p. 12. 43 Edw. 3. Coke 2 Inst. 32. Neither shall 

any such freeman be put from his lively hood without answer. Coke 2 Inst. 

47.



4. "That no freeman shall be out-lawed, unless he shroud and hide himself 

voluntarily from the justice of the law," 2 and 3 Phil. and Mar.Dier. 

114.145.



5. "No freeman shall be exiled." Coke says there are but two grounds, upon 

which any man may be exiled. One by act of parliament (supposing it not 

contrary to the Great Charter.) The other in case of abjuration, for felony 

by the common law, &c. Coke 2 Inst. 47.



6. "No freeman shall be destroyed," that is, he shall not be "fore-judged, 

of life, limb, dis-herited, or put to torture, or death," every oppression 

against law, by colour of any usurped authority, is a kind of destruction, 

and it is the worst oppression that is done by colour of justice. Coke Inst. 

p. 43.



7. "That no freeman shall be thus taken, or imprisoned, disseized, out-

lawed, exiled, or destroyed of his liberties, freeholds, and free customs, 

but by the lawful judgment 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 is rendered 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, because it is supposed to be the truth, 

according to their consciences : For 'Ver dictis' from 'vere dictum,' is 

'quasi dictum veritatis' or a true saying or judgment, 9 Hen. 3. 29. Coke 

Inst. 1. 39. Inst. 4. 207. Coke says, that by the word Legale three things 

are implied. 1st. That this was by law, before the Statute, and therefore 

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 counsel, being given, the judges cannot collect the evidence, nor 

urge it by way of charge to the jury, nor yet confer with the jury about the 

evidence, but in the presence of the prisoner. Coke Inst. 2. 49.



8th "Or by the law of the land" It is a synonimous expression, importing no 

more than by a trial of peers or a jury; for it is sometimes rendered not 

(or) disjunctively, but (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 25th Edw, 3, 'Per 

legem terr�' imports no more, than a trial by due process, and writ 

original at common law, which cannot be without a jury; therefore, 'Per 

judicium parum et per legem terr�' signify the same privilege unto the 

people. Coke Inst, 2. page 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: if 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 springs, 

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 mayor, and recorder of 

London, with the rest of their wise companions, in their late sessions, at 

the Old Bailey, upon the occasion of the prisoners.



1. The prisoners were taken, and imprisoned without presentment of good and 

lawful men of the vicinage, or the neighbourhood, but after a military and 

tumultuous manner, contrary to the Grand Charter.



2. They refused to produce the law upon which they proceeded; leaving 

thereby the prisoners, jury and whole assembly in the dark.



3. 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 all causes that shall come before them in judgment." For no 

sooner did William Penn, or his fellow prisoner, urge upon them the Great 

Charter, and other good laws, hut the Recorder cried, Take him away; take 

him away, put him into the Bale-Dock or hole; from which the recorder can 

never deliver himself, unless it be by avowing; the laws are not his guide, 

and therefore does not suffer them to be pleaded before him in judgment.



4. They gave the Jury their charge, in the prisoner's absence, endeavouring 

highly to incence the Jury against them.



5. The verdict being given, which is in law, "Dictum Veritatis," The voice 

of Truth herself, (because not suitable to their humour) they did five times 

reject it, with many abusive, 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 mere cyphers 

only to signify something behind their figures.



6. Though the prisoners were cleared by their Jury, yet were they continued 

for the non-payment of their fines, laid upon them, for not pulling off 

their hats, in which the law is notoriously broken. (1st) In that no man 

shall be amerced, but according to the offence, and they have fined each 

forty marks. (2d) They were not merced 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, and consequently no legal 

amercement or fine, 9 H. 3, chap. 14. But how the prisoners were trepanned 

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 conceit 

not being gratified, they fined them the forty marks a piece.



7. Instead, of accepting their verdict as good in law, and for the true 

decision of the 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 expressed. And that 

notwithstanding the late just resentment of the House of Commons, in judge 

Keeling's Case, where they resolved, "That the precedent and practice of 

fining, and imprisoning of juries, for their verdicts, were illegal." And 

here we must needs observe two things.



1st. That the fundamental laws of England cannot be more slighted, and 

contradicted in any thing (next Englishmens being quiet destroyed) than in 

not suffering them to have that equal medium, or just nay of trial, that the 

same law has provided, which is by a jury.



2d. That the late proceeding of the 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 

attempted on the consciences of any jury, it was there. And indeed the 

ignorance of jurors of their authority by law, is the only reason of their 

unhappy cringing to the court, and being scared into an Anti-Conscience 

Verdict, by their lawless threats.



But we have lived to an age, so debauched from all humanity 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 

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 therefore liable to alteration, as other 

statutes are. What game such persons play at, may be lively read, in the 

attempts of Dionisius, Palaris, &c. 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 

government; 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 there is no 

invasion) should arise from the universal discommodity of its continuance, 

but there can be no disprofit in the discontinuance of liberty and property, 

therefore there can be no just ground of alteration.



3. No one Englishman is born slave to another, neither has the one a right 

to inherit the sweat and benefit of the others labour, without consent, 

therefore the liberty and property of an Englishman, cannot reasonably be at 

the will and 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 property 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 so themselves.



5. Where liberty and property are destroyed, there must always be a state of 

force and war, which however pleasing it may be unto the invaders, it will 

be esteemed 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 attempts, as they have 

declined by the most prudent in 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 disadvantage which 

necessarily do attend the fixation, and removal 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 disseized of his freehold, 

or liberties, or free customs, or be out-lawed, or exiled, or any other ways 

destroyed; nor we will not pass upon him nor condemn him, but by lawful 

judgment of his peers, &c.



"A freeman shall not be amerced for a small fault, but after the manner of 

the fault, and for a great fault after the greatness thereof, and none of 

the said amercement shall be assessed, but by the oath of good and lawful 

men of the vicinage."



1. It asserts Englishmen to be free; that's liberty.



2. That they have free-holds, that's property.



3. That amercement, or penalties, should be proportioned to the faults 

committed, which is equity.



4. That they shall lose neither, but when they are 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 Chapter would 

bring the people.



1. They are now free-men; but they would have them slaves.



2. They have now right unto their wives, children, and estates, as their 

undoubted property; but such would rob them of all.



3. Now no man is to be amerced, or punished but suitably to his fault; 

whilst they would make it suitable to their revengeful minds.



4. 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 chuse but add, That such discourses manifestly 

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 cancelling of 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 

continuation 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 having received an alteration, there 

is the same reason, why the latter may have the like."



To which we answer, That the reason of alteration cannot he 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 opinion, 

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 have ever remained, as the stable right, of every 

individual Englishman, purely as an Englishman. Otherwise, if the civil 

privileges of the people had fallen with the pretended religious privileges, 

of the popish tyranny, at the first reformation, as must needs be suggested 

by this objection, our case ted ended here, that we had obtained a spiritual 

freedom, at the cost of a civil bondage; which certainly was far from 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 

an action, as is unjust in its own nature, which he must unavoidably be 

guilty of, that doth deface or cancel that law by which the justice of 

liberty and property is confirmed and maintained to the people. And 

consequently, no person may legally attempt the subversion, or extenuation 

of the force of the Great Charter. We shall proceed to prove from instances 

out of both.



1. Any judgment given contrary to the said Charter, is to be undone, and 

holden for nought. 25 Edw. 1, Chap. 2.



2. Any that by word, deed, or counsel, go contrary to the said Charter, are 

to be excommunicated by the bishops; And the archbishops of Canterbury and 

York, are bound to compel the other bishops to denounce sentence 

accordingly, in case of their remissness, or neglect; which certainly hath 

relation to the state, rather than the church; since there was never any 

necessity of compelling the bishops to denounce sentence in their own case, 

though frequently in the peoples. 25 Edw. 1, chap. 4.



3. That the Great Charter, and Charter of Forest, be holden and kept in all 

points, and if any statute be made to the contrary, that it shall be holden 

for nought. 42 Edw. 3, 1. Upon which Coke, that famous English lawyer, said, 

"That albeit judgments in the king's courts, are of high regard in law, and 

judicia are accounted as juris dicta; yet it is provided by act of 

parliament, that if any judgment be given contrary to any of the points of 

the Great Charter, it should be holden for nought."



He further saith, "That upon the Statute of the 25th of Ed. 1, chap. 1. That 

this Great Charter, and the Charter of Forest, are properly the common law 

of this land, or the law is common to all the people thereof."



4. Another statute runs thus, "If any force come to disturb the execution of 

the 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 any thing, that may turn to his damage, or disherison. 18 Ed. 3, chap. 

7. Neither to delay right by the great and little seal." This is the judges 

charge and oath. 2 Ed. 3, chap. 8, 14 Ed. 3, 14, 11 R. 2, chap. 10.



5. Such care hath been taken, for the preservation of this Great Charter, 

that in the 25th of Ed. 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 other lawful, wise, 

and well disposed persons, to be justices, which shall be assigned by the 

kings letters patents, under the great seal, to hear and determine, without 

any other writ, but only their commission, such plaints as shall be made 

upon all those, that commit or offend against any point, contained in the 

aforesaid Charters." 28 Ed. 1, chap. 1.



6. 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, "hath been by 32 parliaments confirmed, established, and commanded 

to be put in execution," with the condign punishment they had inflicted upon 

the offenders. Coke's. Proem to the second book of his Inst.



7. That in 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 confirmed, 3 Car. 1.[3]



8. The late king, in his Declaration, at Newmarket, 1641, acknowledged, 'The 

law to be the rule of his power.'[4] By which he 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 

account of their just resentment and earnest prosecution against some of 

those, who in any age have adventured, to undermine that ancient foundation, 

by introducing an arbitrary way of government.



1. As judicious Lambard reports in his Saxon translation; "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 Charter 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 actions contrary to those fundamental laws, that he commanded the 

execution of 40 of them," which may be a seasonable caveat to judges of our 

times.



2. Hubert de Burgo, once chief justice of England (having advised Ed, I in 

the 11th year of his reign, (in his council holden at Oxford) "To cancel 

this Great Charter, and that of the Forest) was justly sentenced according 

to law, by his peers, in open parliament. When the statute called 

Confirmationis Cartarum was made; in the 1st chapter whereof, Magna Charta 

is peculiarly called the common law, 25 Ed. 1, chap. 2.



3. The Spencers, both father and son, for their arbitrary domination, and 

rash, and evil counsel to Ed. 2, (by which he was seduced to break the Great 

Charter) were banished for their pains, as Coke relates.[5]



4. The same fase attended Tresilian and Belknap, for their illegal 

proceedings.[6]



5. The breach of this Great Charter, was the ground of that exemplary 

justice done upon Empson and Dudley,[7] whose case is very memorable in this 

point; for though they gratified Hen. 7. in what they did, and had an Act of 

parliament for their warrant, made the 11th of his reign; yet met they with 

their due reward from the hands of justice, that Act being against equity 

and common reason, and so no justifiable ground or apology, for those 

frequent abuses, and oppressions of the people, they were found guilty of. 

Here what the Lord Coke further saith, concerning the matter, "There was an 

Act of parliament, made in the 11th year of king Hen. 7. which had a fair 

flattering preamble, pretending to avoid divers mischief's, which were (1st) 

The high displeasure of Almighty God. 2d. The great let of the common law. 

And (3d) 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 

displeasure of Almighty God, and the great let, nay the 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 thenceforth, as well justices of Assize, as Justices of the 

peace, in every countv, upon information for the king, before them made, 

without any finding or presentment by twelve men, shall have full power and 

authority, by their discretion; and to hear and determine all offences, as 

riots, unlawful assemblies, &c. committed and done against any act or 

statute made, and not repealed, &c.' (a Case that very much resembles this 

of our own times.)



By pretext of this law, Empson and Dudley did commit upon the subjects, 

unsufferable pressure, and oppressions; and therefore this statute was 

justly, soon after the decease of Hen. 7. repealed, at .the next parliament, 

after his decease by the statute of the 1 H. 8. chap. 6. A good caveat to 

parliaments, to leave all causes to be measured by the golden and straight 

metewand of the law, and not to the in-certain 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 roost 

unjust and strange act of the 11th of H. 7. For hereby, not only Empson and 

Dudley themselves, but such justices of peace (corrupt men) as they caused 

to be authorised, committed most grievous, and heavy oppressions and 

exactions; grinding the faces of the poor subjects by penal laws (be they 

never so obsolete, or unfit for the time) by information only, without any 

presentment, or trial by jury, being, the ancient birth-right of the 

subject; out to near 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 

Dudley, and their instruments, brought infinite treasure to the king's 

coffers, whereof the king himself, at the end, with great grief, and 

compunction, repented as in another place we have observed.



"This statute of the 11th of H. 7. we have recited, and shewed the just 

inconveniences thereof; to the end, that the like should never hereafter be 

attempted in any court of parliament; and that others might avoid the 

fearful end of those two time-servers, Empson and Dudley, 'Qui eorum 

urstiquiis insistunt, eorum exitus per horrescant.'



"See the Statute of 8 Edw. 4. chap. 2. a Statute of Liveries, an 

Information, &c. By the discretion of the judges, to stand as an original, 

&c. This act is deservedly repealed, vide 12 R. 2. c 13. Punishment by 

discretion, &c. vide, 5th of H. 4. c. 68. See the Commission of Sewers; 

discretion ought to be thus discribed, 'Discretio est descernere per Legem, 

'quid sit justum,' From whence three things seem most remarkable.



1. The great equity and justice of the Great Charter, with the high value 

our ancestors have most deservedly set upon it.



2. The dreadful maledictions, or curse, they have denounced upon the 

Breakers of it; with those exemplary punishments they have not spared, to 

inflict upon such notorious offenders.



3. So heinous a thing was it esteemed of old, to endeavour an enervation, or 

subversion of these antient rights and privileges, that acts of parliaments 

themselves (otherwise the most sacred with the people,) have not been of 

force enough to secure or defend such persons from condign punishment, who 

in pursuance of them, have acted inconsistent with our Great Charter. 

Therefore it is, that great lawyer, the lord Coke, doth once more aggravate 

the example of Empson and Dudley (with persons of the same rank) into a just 

caution, as well to parliaments as judges, justices and inferior 

magistrates, to decline making, or executing any act, that may in the least 

seem to restringe or confirm 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 fay those 

courses) have with great compunction and repentance, left among their 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 1662, (viz.) "The good old rules of law are our best 

security."[8]



The manner of the Court's behaviour towards the Prisoners, and Jury, with 

their many extravagant expressions, must not altogether slip our 

observation.



1. Their carriage to the Jury outdoes 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, 

received 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 they did.



3. Their treatment of the Prisoners was not more unchristian, than inhuman. 

History can scarce tell us of one heathen 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, merely for defending 

themselves, and that by the ancient fundamental laws of England too. O 

barbarous! had they been Turks and infidels, that carriage would have ill 

become a Christian court, such actions proving much stronger dissuasives, 

than argument 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 country, by the 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 boarish fierceness from the mayor of London, when they consider his 

eager prosecution of the king's party under Cromwell's government, as 

thinking he could never give too great a testimony of his loyalty to that 

new 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 Friars, hopes to make amends by his zealous prosecution of the 

poor, Dissenters; for at the same sessions he moved to have an evidence (of 

no small quality) against Harrison, the friar, sent to Bridewell and 

whipped; that he was earnest to have the Jury fined and imprisoned, because 

they brought not the Prisoners guilty, for only worshipping their God: 

whence it may be easy to observe, That Popish friars, and prelatical 

persecutors are mere confederates.



But what others have only adventured to stammer at, the Recorder of London, 

has been so ingenious as to speak most plainly; or else what means those two 

fatal expressions, which are become the talk and terror both of city and 

country?



First, in assuring the Jury, 'That there would be a law next session of 

parliament, That no man should have the protection of the law, but such as 

conformed to the church:' which, should it be as true, as we hope it is 

false, (and a dishonourable prophecy of that great assembly) the papists may 

live to see their Marian days outdone by professed Protestants. But surely 

no Englishman can be so sottish, as to conceive that his right to Liberty 

and Property, came in with his profession of the Protestant religion; or 

that his natural and human rights, are dependent on certain, religious 

apprehensions, 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 deportment 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, Trade and Commerce 

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 conformity 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 believe a London's Recorder should say, 

an English parliament should impose so much slavery on the present age, and 

entail 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 

Spainiards, in suffering the inquisition amongst them: And certainly it will 

never be well with us, till some thing like unto the Spanish inquisition be 

in England." The gross malignity of which saying is almost inexpressible: 

What does this but justify that hellish design of the papists to have 

prevented the first reformation; If this be good doctrine, then Hegestrant, 

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, than 

Howel 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 his 

abominable cruelty shall be esteemed prudence, and his most barbarous and 

exquisite torturing of truth, an excellent way to prevent faction. If the 

recorder has spake for no more than for himself it is well; but certainly he 

little deserves to be thought a protestant, and a lawyer, that put both 

reformation and law into the inquisition; There being nothing more 

destructive of the fundamental laws and liberties of England, and that noble 

design of primitive reformation; than the arbitary power and terrifying 

racks of the Spanish inquisition. And doubtless the supreme governors of the 

land, are highly obliged in honour and conscience (in discharge of their 

trust to God and the people) to take these things into their serious 

consideration, as what is expected from them, by those who earnestly wish 

theirs and the kingdom's safety and prosperity.







The Copy of Judge KEELING'S Case,[9] takes out of the Parliament Journal.



                    December 11th, 1667.



'The House resumed the bearing 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 restraints, put upon juries, by the Lord 

Chief Justice Keeling; whereupon the committee made their resolutions, which 

are as followeth: '1. That the proceedings of the Lord Chief Justice, in the 

cases now reported, are innovations, in the trial of men for their lives and 

liberties; and that he hath used an arbitary and illegal power, which is of 

dangerous consequence to the lives and liberties of the people of England, 

and tends to the introducing of an arbitrary government.



'2. That in the place of judicature, the Lord Chief Justice hath under-

valued, vilified, and condemned Magna Charta, the great preserver of our 

lives, freedom, and property.



'3. That he be brought to trial, in order to condign punishment, in such 

manner as the House shall judge most fit and requisite.'



                    December 13th 1667.



'Resolved, &c.



'That the precedents and practice of fining or imprisoning jurors, for 

verdicts, is illegal.'[10]



Now whether the justices of this court, in their proceedings (both towards 

the prisoners, and Jury) have acted according to law, to their oaths and 

duty, and to do justice without partiality : 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 England? 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 suspicion with their people, by the 

irregular actions of subordinate 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 persons to account, 

who failed not to do it to one less guilty, and of more repute, (to wit) 

judge Keeling: for if his, behaviour gave just ground of jealousy, that he 

intended an innovation, and the introducing an arbitary government, this 

recorder much more. Did Chief Justice Keeling say, Magna Charta was 

Magnafarta; so did this recorder too: And did justice Keeling fine and 

imprison Juries, contrary to law; so did this Recorder also. In short there 

is no difference, unless it be, that the one was questioned, and 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 notwithstanding notoriously transgress.



To conclude, the law supposes the king cannot err, because it is willing to 

suppose, he always acts by law (and 'voluntas legis, est voluntas Regis,' or 

the king's will is regulated by the law) but it says no such thing of his 

judges. And since they are obliged by oath to disregard the king's letters 

(though under the broad and privy seal) if' they any wise oppugn, or 

contradict the laws of the land; and considering that every singular action 

of an inferior minister, has an ugly reference to the supreme magistrate, 

where not rebuked; we cannot but conclude, that both judges are answerable 

for their irregularities, especially, where they had not a limitation of 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 condign 

punishment, lest every sessions produce the like tragical scenes of 

usurpation over the consciences of Juries, to the vilifying and contemning 

of justice, and great detriment, and prejudice of the good and honest men of 

this famous and free city. Fiat Justitia.







THE severe measures adopted in the early part of the reign of Charles the 

Second, against Protestant Non-Conformists, (See the Act of Uniformity, 

Stat. 13 and 14 Car. 2, c. 4, the first Conventicle Act Stat. 16, Car. 2, c. 

4, The Five Mile Act Stat. 17 Car. 2, c. 2,) it is probable were occasioned 

by the sentiments of hatred and revenge which Clarendon felt towards the 

Presbyterians. The revival of that course of measures, after Clarendon had 

been removed, was perhaps the result of cool policy in favour of the 

Papists. It seems to have been supposed that by the enactment and severe 

enforcement of the second Conventicle Act, Stat. 22, Car. 2, c. 1. the 

Protestant Dissenters might have been driven to petition for a general 

Toleration. However this may be, it appears that an active persecution was 

exercised under the provisions of that statute.



"Many of the bishops," says Neal, "chose to lie behind the curtain, and 

throw off the odium from themselves to the civil magistrate; but some of the 

more zealous could not forbear appearing in person, as bishop Ward, already 

mentioned, and bishop Gunning, who often disturbed the meetings in person; 

once finding the doors shut, he ordered the constable to break them open 

with a sledge; another time he sat upon the bench at the quarter sessions, 

upon which the chairman desired his lordship to give the charge, which he 

refusing, received a very handsome rebuke; it being hardly consistent with 

one that is an ambassador of the prince of peace, to sit in judgment upon 

the consciences of his poor countrymen and neighbours, in order to plunder 

and tear them to pieces. The bishop was so zealous in the cause, that he 

sunk his character by giving a public challenge to the Presbyterians, 

Independants, Anabaptists, and Quakers, and appointed three days for the 

disputation; on the first of which his lordship went into the pulpit in the 

church, where was a considerable congregation, and charged the former with 

sedition and rebellion out of their books, but would hear no reply. When the 

day came to dispute with the Quakers, they summoned their friends, and when 

the bishop railed, they paid him in his own coin; and followed him to his 

very house with repeated cries, "The Hireling flyeth;" The Non-conformist 

ministers did what they could to keep themselves within the compass of the 

law; they preached frequently twice a day in large families, with only four 

strangers, and as many under the age of sixteen as would come; and at other 

times in places where people might hear in several adjoining houses; but 

after all, infinite mischiefs ensued, families were impoverished and 

divided; friendship between neighbours was interrupted; there was a general 

distrust and jealousy of each other; and sometimes upon little quarrels, 

servants would betray their masters and ruin all their affairs. Among others 

that suffered at this time was Dr. Manton, who was apprehended on a Lord's 

day in the afternoon just as he had done sermon, the door being opened to 

let a gentleman out, the justice and his attendants rushed in and went up 

stairs; they stayed till the Doctor had ended his prayer and then writ down 

the names of the principal persons present, and took the Doctor's promise to 

come to them at an house in the Piazzas of Covent Garden, where they 

tendered him the Oxford oath, upon his refusal of which he was committed 

prisoner to the Gatehouse, where he continued till he was released by the 

indulgence. At another time his Meeting-house in White-hart-yard was broken 

up; the place was fined forty pounds, and the minister twenty, which was 

paid by Lord Wharton, who was then present: they also took down the names of 

the hearers for the benefit of the justices of peace and spiritual courts."



These severities seem to have been attended by the usual effects of 

religious persecution. The same author, by way of introduction to his 

Account of this Case of Penn and Mead tells us:



"The behaviour of the Quakers was very extraordinary, and had something in 

it that looked like the spirit of martyrdom. They met at the same place and 

hour as in times of liberty, and when the officers came to seize them none 

of them would stir; they went altogether to prison; they stayed there till 

they were dismissed, for they would not petition to be set at liberty, nor 

pay the fines set upon them, nor so much as the gaol fees. When they were 

discharged they went to their Meeting-house again, as before; and when the 

doors were shut up by order, they assembled in great numbers in the street 

before the doors, saying, they would not be ashamed, nor afraid to disown 

their meeting together in a peaceable manner to worship God; but in 

imitation of the Prophet Daniel, they would do it more publicly because they 

were forbid. Some called this obstinacy, others firmness; but by it they 

carried their point, the government being weary of dealing with so much 

perverseness."



The fanaticism of the Quakers had, indeed, occasionally displayed itself in 

an offensive manner some years earlier, as may be seen in the Case of James 

Nayler, ante, vol. 5, p. 801, and in the following curious narrative:



"In the year 1659, in the fourth month, the last day of the month being the 

5th day of the week,



"The presence of the Lord God was felt within me, and in his light he let me 

see what his pleasure was with me; it was clearly shewed me that I should go 

to the Steeplehouse in Alderman-bury the first day of the week then 

following, and take with me something to work, and do it in the pulpit at 

their singing time.



"At which sight I found much unwillingness in myself, yet sitting still with 

trembling, there came upon me a very great weight pressing me to obedience; 

yea a heavy burthen was felt, till I had consented to obey; I felt the 

weight to increase, oh how hard my unwilling will was to yield, but the Lord 

strengthened me, and having consented, I found a little ease, yea I did 

resolve in the power of the Lord to go on: I purposed to carry with me a 

pocket to sow.



"So the first day morning being the 3rd day of the 5th month after the 8th 

hour one of the doors being open, I passed in, thinking to get into the 

pulpit to hide myself there till their singing time, and then get up and 

work; the Sexton spying me, took me by the arm, said friend we do not open 

yet, for it was their Communion day as they call: but the time I was in, I 

found the galleries were higher than the pulpit, and I should have been 

discovered before their song began; I see the clerk giving tickets: so about 

the 9th hour their doors were opened, I passed in as one of their own crowd, 

the throng came in very fast, I got into one of the galleries to spy if 

possible to get in the pulpit some way, but I found none at that time, so 

they began to read, and I came down, and finding no way to get into the 

pulpit, I came to the table that is prepared for that troop, I thought to 

get upon the table to work, but the table was set round with young men, and 

when they began their song, they laid on their hats upon the table, so I 

standing still waiting on the Lord, having a great mind to do the Lord's 

work; their song being up, my hat offended them, they took it off, and cast 

it away, and one of the young men gave it me again, I put it on, and it 

offended again, insomuch that Piercefall did perceive me, who came 

violently, and took my hat off to fling it away, but I held it, then he took 

me by the hair of the head, and dragged me out, and as one of their own 

company testified to his face that he struck me, but I cannot say that, but 

a lusty red-haired man did strike me, I supposed him to be an officer in 

that hateful place, but Piercefall after he had dragged me out by the hair, 

said, Sirrah do you not know William Duike, I said nay, for I did not know 

him; Sirrah, said he, I put him in prison, and fined him ten pound, and you 

must be served so too, and so charged the constable with me, and went 

himself in again, arid received the Sacrament for all this.



"The constable told me that I might go away if I would, but in again I must 

not. So I stood a while and finding in myself no constraint, I passed away 

towards More-fields finding a little ease from the weight of the burden, 

being faithful to what might be done at that time: but the 6th day of the 

week being the 8th day of the month sitting at work in my shop but not on 

the shop board, the burden of the Lord came upon me, and the light making 

manifest the same thing that was not yet done, must be done, and the Lord 

would not discharge me, but laid a necessity upon me. I beholding this with 

trembling and fear; I did resolve in the power of the Lord not to eat nor 

drink, till I had performed the Lord's requiring. So having purposed in 

heart, I greatly desired the Lord's assistance; and it was shewed me how to 

do it, and the Lord made way for me.



"So the first day of the week being the 10th day of the 5th month, I waited 

opportunity till the singing time began, which when I heard, I passed in, 

but being fearful to be taken with the hat again; and so loose my main, 

business, for the Lord: I slept out again, but staid not, I came in again; I 

looked towards the pulpit and spyed the pew door open, that the priest might 

pass up the pulpit. So I waited thinking that Edmund Calomy would go up the 

pulpit, I intended to get in before him; for thought I that boy that sits 

upon the stairs will open the pulpit door for the priest, and I will get in 

before, but no priest came, whereupon in the power of the Lord I fixed my 

eye upon the pulpit, and I spyed an iron hook, and I passed through the pew 

up the stairs, and unbooked the door, and pulled twice and got it open, and 

I sat myself down upon the cushion, and my feet upon the seat where the 

priest when he hath told out his lies doth sit down, and having my work 

ready, I pulled one or two stitches. The people lost their song, and some 

cried Pull him down, some break his neck down, and a lusty fellow came up 

and did intend to do me a mischief, and wrung my neck as if he would have 

wrung it in two. So I let go my hold and he flung me down stairs; but the 

Lord preserved me, and I felt no hurt; for having done that which the Lord 

required me to do I was fall of peace; and it had been little to me if they 

had there taken away or killed the body. For I was full of joy, and they 

were full of wrath and madness; so they tore my coat off and my hat, and 

dragged me out, and one took me by the hair and flung me upon the ground, 

and some that was without said, Why do you use the man so, but I got up 

again, then they dragged me quite out into the street, and there held me, 

and while they held me, one came, and gave me a violent kick on the shins, 

and said he could find in his heart to knock me down, he made my shin bleed, 

and another kicked me on the other shin, but did not much hurt, another said 

that I had been some notorious sinner heretofore and now came to do 

something that might merit, presently the church-warden as they call him, 

came out, and he and the bell-toller carried me away to the counter, till 

their Sermon was ended, as they call it, then they carried me away to Paul's 

Yard to stay for the mayor, but the sergeant said he would carry me away to 

the mayor's house and there stay me till he came in; and so he did: and all 

the way through Paternoster-Row as I went, the boys kicked my heels, so then 

the mayor came in, and they told him that I was at work in the pulpit; then 

said he to me, Wherefore did you work there? I said in obedience to the 

Lord's commandment: he said, It was a false spirit, and said he, where are 

your sureties? I said the Lord was my surety; he said, the Lord would not 

bear me out in this thing: said he to them, Carry him again to the Counter: 

so they carried me back again, and there I was till the third day.



"Now let all sober people judge whether I did this thing out of envy against 

either priest or people.



"Yea farther I say, the Lord God lay it not to their charge, who have said 

that I did it in malice, devilishness and envy; it is the desire of my soul 

that they might be saved.



"And so do write my name being a prisoner for the Testimony of the Lord in 

the common gaol in Newgate, London: committed the 15th of the 5th month, 

1659.



                                         "SOLOMON ECCLES."







[1] Published in the same year under the title of "The People's Ancient and 

Just Liberties, asserted, in the Trial of William Penn and William Mead, at 

the Sessions held at the Old-Bailey, in London, the 1st, 3rd, 4th and 5th of 

Sep. 1670, against the most arbitrary procedure of that Court."  Isaiah, x. 

1. 2. "Woe unto them that decree unrighteous decrees, and write 

grievousness, which they have prescribed; to turn away the needy from 

judgment, and to take away the right from the poor, &c." Psalm xciv. 20. 

"Shall the throne of iniquity have fellowship with thee, which frameth 

mischief by a law."



            'Sic volo, sic jubeo, stat pro ratione voluntat.'



With a Prefatory Address as follows:



                   To the English Reader.



"If ever it were time to speak or write, it is now, so many strange 

occurrences requiring both. How much thou art concerned in this ensuing 

Trial, where not only the Prisoners, but the Fundamental Laws of England, 

have been most arbitrarily arraigned, read, and thou mayest plainly judge.



"Liberty of Conscience is counted a pretence for Rebellion, and religious 

assemblies, routs, and riots; and the defenders of both, are them, reputed 

factious and disaffected.



"Magna Charta, is Magna f with the Recorder of London; and to demand right 

an affront to the court.



"Will and Power are their great charter, but to call for England's, is a 

crime, incurring the penalty of their Bale-dock, and Nasty-hole, nay, the 

menace of a Gag, and Iron Shackles too.



"The Jury, though proper judges of law and fact, they would have over-ruled 

in both, as if their Verdict signified no more, than to echo back the 

illegal Charge Of the Bench; and because their courage and honesty did more 

than hold pace with the threat and abuse of those, who sat as judges, after 

two days and two nights restraint for a verdict, in the end were fined and 

imprisoned, forgiving it.



"O! what monstrous, and illegal proceedings are these? Who reasonably can 

call his coat his own? When property is made subservient to the will and 

interest of his judges; or, who can truly esteem himself a free man? When 

all pleas for liberty are esteemed sedition, and the laws, that give, and 

maintain them, so many insignificant pieces of formality.



"And what do they less than plainly tell us so, who at will and pleasure 

break open our locks, rob our houses, raze their foundations, imprison our 

persons, and finally deny us justice to our relief; as if they then acted 

most like Christian men, when they were most barbarous, in ruining such, as 

really are so; and that no sacrifice could be so acceptable to God, as the 

destruction of those, that most fear him.



"In short, That the conscientious should only be obnoxious, and the just 

demand of our religious liberty, the reason, why we should be denied our 

civil freedom, as if to be a Christian and an Englishman were inconsistent, 

and that so much solicitude and deep contrivance, should be employed only, 

to ensnare, and ruin, so many ten thousand conscientious families, so 

eminently industrious, serviceable, and exemplary, whilst murder can so 

easily obtain pardons, rapes be remitted, public uncleanness pass 

unpunished, and all manner of levity, prodigality, excess, profaneness, and 

atheism, universally connived at; if not in some respect manifestly 

encouraged, cannot but be detestably abhorrent, to every serious and honest 

mind.



"Yet that this lamentable state is true, and the present project in hand, 

let the London's Recorder, and Canterbury's Chaplain be heard.



"The first in his public panegyric, upon the Spanish Inquisition, highly 

admiring the prudence of the Romish Church, in the erection of it, as an 

excellent way to prevent Schism,' which unhappy expression, at once passeth 

sentence, both against our fundamental laws, and Protestant Reformation.



"The second, In his printed mercenary Discourse against Toleration, 

asserting for a main principle, 'That it would be less injurious to the 

government, to dispense with prophane and loose persons, than to allow a 

toleration to religious dissenters:' It were to over-do the business, to say 

any more, where there is so much said already.



"And therefore to conclude, we cannot choose but admonish all,. as well 

persecutors to relinquish their heady, partial, and inhuman prosecutions, as 

what will certainly issue in disgrace here, and inevitable condign 

punishment hereafter, as those who yet dare express their moderation, 

however out of fashion, or made the brand of fanaticism, not to be huffed, 

or menaced, out of that excellent temper, to make their parts, and persons 

subservient to the base humours, and sinister designs of the biggest mortal 

upon earth: But to reverence and obey the eternal just God, before whose 

great tribunal all must render their accounts, and where he will recompence 

to every person according to his works."



[2] See Throgmorton's Case, vol. 1, p. 901; and the Case of Lilburne's Jury, 

Aug. 1653, ante, vol. 5, p. 445.



"The practice heretofore in use of fining, imprisoning or otherwise 

punishing jurors, merely at the discretion of the court, for finding their 

verdict contrary to the direction of the judge, was arbitrary, 

unconstitutional and illegal; and is treated as such by sir Thomas Smith, 

200 years ago; who accounted such doings to be very violent, tyrannical and 

contrary to the liberty and custom of the realm of England. [Smith's 

Commonw. 1. 3, c. 1.] For, as sir Matthew Hale well observes [2 Hal. P. C. 

313.] it would be a most unhappy case for the judge himself, if the 

prisoner's fate depended upon his directions:  unhappy also for the 

prisoner; for if the judge's opinion must rule the verdict, the trial by 

jury would be useless. Yet in many instances [1 Lev. 9. T. Jones, 163.] 

where contrary to evidence the jury have found the prisoner Guilty, their 

verdict hath been mercifully set aside, and a new trial granted by the court 

of King's-bench; for in such case, as hath been said, it cannot be set right 

by attaint. But there hath yet been no instance of granting a new trial, 

where the prisoner was acquitted upon the first [2 Hawk. P. C. 442]." 

Blackst. Comm. b. 4, c. 27, p. 361.



This practice of Fining is well treated by Hale, as follows:



"If a bill be against A. for murder, and the grand inquest upon the evidence 

before them, or their own knowledge be satisfied that it was but per 

infortunium or se defendendo, and accordingly return the bill specially, the 

court may remand them to consider better of it, or may hear the evidence at 

the bar, and accordingly direct the grand inquest; but I have known a judge 

blamed for setting a fine upon the grand inquest for such a return, because 

in truth it comes not up to felony.



"But if a bill goes out against B. for murder, and it doth constare de 

persona occidentis, may the grand inquest find the bill for manslaughter and 

ignoramus for the murder? and is the court bound to receive such a return?



"In this case, of all hands it is agreed [upon this Emlyn remarks, "This is 

far from being agreed of all hands, for such an anticipation of the evidence 

by the grand jury is what they cannot avoid, they being bound by their oath 

as much as the petit jury, to present the whole truth and nothing but the 

truth; nor do they in this case so properly determine matter of law as 

matter of fact; for whether murder or not depends upon a preconceived 

malice, which though it is to be presumed, where no provocation appears, is 

matter of fact, and proper for the consideration of a jury.''] that the 

grand jury is to blame, because they take upon them to anticipate the 

evidence that is to be given to the petit jury, and so determine matter of 

law which belongs to the court to determine, and by this means many murders 

may escape under the disguise of manslaughter, and so escape with their 

clergy.



"Some therefore have made it a practice to set a fine upon the grand jury in 

this case, and it hath proceeded so far as to fine petit juries, also in 

such like cases; whereof hereafter.



"That which I think herein and in other concealments of grand inquests, is 

as follows:



"1. That the court may receive such a return from the grand inquest, and it 

is a matter of discretion, especially if upon inquiry from the indictors or 

witnesses, or upon view of their examinations it doth plainly appear, that 

the crime amounts to no more.



"2. That barely upon such a return no fine can be set upon the grand 

inquest, unless the evidence to the grand inquest be given at the bar in the 

presence of the court; for otherwise the court cannot understand whether the 

grand inquest doth well or ill in such case.



"3. That if the evidence to the grand inquest be given at the bar upon an 

indictment in the King's-bench, and the grand inquest will not find a bill 

according to the direction of that court; as for instance, will find a man 

Guilty only se defendendo, or of manslaughter when it is murder, that court 

may set, a fine upon the grand inquest, and so it hath been practised; for 

it is the highest court in England of ordinary justice, especially in 

criminal causes.



"4. That if the justices of Oyer and Terminer or gaol-delivery, having heard 

the evidence at the bar, the grand inquest will not find according to their 

directions, the justices may bind them over by recognizance into the King's-

bench, and upon an information against them they may be fined.



"5, That in such a case justices of peace, Oyer and Terminer or gaol-

delivery may, according to the statute of 3 H. 7, c. 1, impannel another 

inquest to enquire of their concealments, and thereupon set fines upon them.



"6. But in my opinion fines set upon grand inquests by justices of the 

peace, Oyer and Terminer or gaol-delivery for concealments or non-

presentments in any other manner, are not warrantable by law ; and though 

the late practice hath been for such justices to set fines arbitrarily, yea 

not only upon grand inquests, but also upon the petit jury in criminal 

causes, if they find not according to their directions, it weighs not much 

with me for these reasons; 1. Because I have seen arbitrary practice still 

go from one thing to another, the fines set upon grand inquests began, then 

they set fines upon the petit juries for not finding according to the 

directions of the court; then afterwards the judges of nisi prius proceeded 

to fine jurors in civil causes, if they gave not a verdict according to 

direction even in points of fact; this was done by a judge of assize 

[Justice Hyde at Oxford. Vaugh. 145.] in Oxfordshire, and the fine 

estreated; but I, by the advice of most of the judges of England, staid 

process upon that fine: the like was done by the same judge in a case of 

burglary, the fine, was estreated into the Exchequer; but by the like advice 

I stayed process; and in the case of Wagstaff [Vaugh. 153:] and other jurors 

fined at the Old Bailey, for giving a verdict contrary to direction, by the 

advice of all the judges of England (only one dissenting) it was ruled to be 

against law: but of this hereafter [c. 42.] 2. My second reason is, because 

the statute of 3 H. 7, c. 1, prescribed a way for their fining, which would 

not have been if they had been arbitrarily subject to a fine before. 3. It 

is of very ill consequence, for the privilege of an Englishman is, that his 

life shall not be drawn in danger without due presentment or indictment, and 

this would be but a slender screen or safe-guard, if every justice of peace, 

or commissioner of Oyer and Terminer or gaol-delivery, may make the grand 

jury present what he pleases, or otherwise fine them ; and there is no 

parity of reason or example between inferior judges and the court of King's-

bench, which is the supreme ordinary court of justice in such cases.'' 2 

Hale's. P. C. 158.



[3] See 2 Cobb. Parl. Hist. 374.



[4] See 2 Cobb. Parl. Hist. p. 970.



[5] See vol. 1, p. 23 of this Collection.



[6] Ibid, p. 89.



[7] See vol. 1, p. 283.



[8] See 4 Cobb. Parl. Hist. 247.



[9] "On the 16th of October, 1667, the House being informed, 'That there 

have been some innovations of late in trials of men for their lives and 

deaths; and in some particular cases, restraints have been put upon juries, 

in the inquiries,' this matter is referred to a committee. On the 18th of 

November, this committee are empowered to receive information against the 

Lord Chief Justice Keeling, for any other misdemeanors, besides those 

concerning juries. And on the 11th of December, 1667, the committee report 

several Resolutions [as above] against the Lord Chief Justice Keeling, of 

illegal and arbitrary proceedings in his office. The Chief Justice desiring 

to be heard, he is admitted on the 13th of December, and heard in his 

defence to the matters charged against him, and being withdrawn, the House 

resolve, That they will proceed no farther in the matter against him." 4 

Hatsell.



Mr. Hatsell observes, that "The report of the facts on which these 

Resolutions are grounded, is not entered in the Journals; but the cases 

complained of, in which innovations had been had of late, were probably 

those of Wagstaff and Hood. Wagstaff's case in Trin. term, 17 Ch. 2, is 

reported in Hardress's Rep. p. 409. 'Wagstaff and others of a jury were 

fined an hundred marks a piece by Lord Chief Justice Keeling, because, 

though evidence was given, that persons had assembled at conventicles and 

had bibles with them, the jury would not find them guilty of keeping a 

conventicle, upon the late act of 16 Ch. 2. And the jury were committed till 

they paid their fine: and on application to the court of Exchequer, Lord 

Chief Baron Hale directed the fines to be estreated.' The other case was in 

the 18th of Charles 2, Kelyng's Reports, p. 50." 4 Hatsell, 113.



"Memorandum, At Lent circuit at Winchester, 18 Car. 2, one Henry Hood was 

indicted for the murder of John Newen, and upon the evidence it appeared, 

that he killed him without any provocation, and thereupon I directed the 

jury that it was murder: for the law in that case intended malice; and I 

told them they were judges of the matter of fact, viz. whether Newen died by 

the hand of Hood; but whether it was murder or manslaughter, that was matter 

in law, in which they were to observe the direction of the Court. But 

notwithstanding they would find it only manslaughter; whereupon I took the 

verdict and fined the jury, of which John Goldwier was the foreman, 5l. a-

piece, and committed them to gaol till they found sureties to appear at the 

next assizes, and in the mean time to be of the good behaviour: but after, 

upon the petition of the jurors, I took down their fines to 40s. a-piece, 

which they all paid and entered in recognisance, &c." Kelyng, 50.



It is, perhaps, worth observation, that in this case of Hood, Kelyng's 

direction, (for not following which he fined the jury), seems upon his own 

shewing to have been wrong. According to his own report of the case, the 

only question, which he left to the jury, was, whether Newen died by the 

hand of Hood. Now most undoubtedly the circumstances of intention on the 

part of Hood, and of provocation (the sufficiency of provocation is 

altogether distinct) on the part of Newen, were as much matters of fact, and 

to be collected from the testimony of the witnesses, as the giving the 

mortal wound. Those matters therefore should have been left to the jury. See 

the 8th Resolution of the Judges in lord Morley's case ante, p. 771, It is 

not improbable, that in Hood's case there was some provocation, which the 

jury thought sufficient to excite his sudden resentment, and put him off his 

guard, and so reduce his offence to man-slaughter, but which the judge did 

not think sufficient for that purpose.



The following Case is in 2 Keble, 180.



      "The King against Sir H. Windham and others, Jurors of Somersetshire.



"The Chief Justice bound them over to appear here in regard they would not 

find a bill of murder, albeit they were satisfied the man died by the hands 

of the party indict, and were told this was but an accusation, and no trial 

of the issue Guilty or Not Guilty, or whether it were maliciously or 

fortuito, and that whether the fact were murder or se defendendo was matter 

of law; and because they would not find the bill, the Chief Justice fined 

the eleven who refused to find it, to 20l. a-piece at the assizes; and now 

the Court delivered their opinions severally that this was well assessed, in 

regard if they should try the malice by the grand jury, they would prevent 

the judgment of the Court, and the grand jury is only for enquiry not for 

conviction; also they are not to regard the legal forms of malitiose, no 

more than the saying vi et armis in trespass, which is found everyday 

without scruple; and when the petty jury, contrary to directions of the 

Court, will find a murder manslaughter, albeit it lie properly before them, 

yet the Court will fine them, but because they were gentlemen of repute in 

the country, the Court spared the fine, yet in Parliament the Chief Justice 

was fain to submit, being by sir H. W. accused."



"This conduct of Chief Justice Kelyng," says Mr. Hatsell, "was grounded on 

the authority of Wharton's case, Mich. term, 44 Eliz. reported in 

Yelverton's Rep. p. 23. Wharton and others were indicted of murder; on which 

indictment all the parties were found Not Guilty; per q Popham, Gaudy and 

Fenner, fuerunt valde irati, et touts les jurors comit et fine, et oblige a 

lour bon behaviour.' See the case of Watts v. Brains, in 1 Croke's Rep. p. 

778."



A bill was ordered in, which however did not pass the House of Commons, to 

"declare the fining and imprisoning of jurors to be illegal."



[10] See Mr. Clifford's argument in the Case of Flower, A. D. 1799, and Mr. 

Clifford's Postscript to that Case, infra. See also what Mr. Hargrave says 

of this matter, in his Preface to lord Hale's Treatise on the Judicature of 

the Lords' House of Parliament. Some spirited observations on Kelyng's 

conduct are to be found in the Tract concerning Juries, ascribed to lord 

Somers. See lord Shaftesbury's Case, a.d. 1681, infra.