The Online Library of Liberty

A project of Liberty Fund, Inc.

• Acknowledgments
• Introduction William Penn: His Life, His Times, and His Work
• Notes On Texts and Annotations
• Chronology of Penn’s Life and Times
• {part I}: Foundations the Ancient Constitution and English Liberties
• 1.: The People’s Ancient and Just Liberties Asserted, In the Trial of William Penn and William Mead, At the Sessions Held At the Old-baily In London, the First, Third, Fourth and Fifth of September, 1670, Against the Most Arbitrary Procedur
• 2.: England ’s Present Interest Considered, With Honour to the Prince, and Safety to the People (1675)
• {part Ii}: Penn’s Argument For Religious Liberty
• 3.: The Great Case of Liberty of Conscience Once More Briefly Debated and Defended, By the Authority of Reason, Scripture, and Antiquity: Which May Serve the Place of a General Reply to Such Late Discourses; As Have Oppos’d a Toleration (1670) the a
• 4.: One Project For the Good of England That Is, Our Civil Union Is Our Civil Safety Humbly Dedicated to the Great Council, the Parliament of England (1679)
• 5.: An Address to Protestants of All Perswasions More Especially the Magistracy and Clergy, For the Promotion of Virtue and Charity (1679) In Two Parts. By W. P. a Protestant.
• 6.: A Brief Examination and State of Liberty Spiritual, Both With Respect to Persons In Their Private Capacity, and In Their Church Society and Communion (1681)
• 7.: A Perswasive to Moderation to Church-dissenters, In Prudence and Conscience: Humbly Submitted to the King and His Great Council (1686)
• 8.: Good Advice to the Church of England, Roman-catholick, and Protestant Dissenter: In Which It Is Endeavoured to Be Made Appear, That It Is Their Duty, Principle, and Interest, to Abolish the Penal Laws and Tests (1687)
• {part Iii}: General Principles and Specific Events
• 9.: The Proposed Comprehension Soberly, and Not Unseasonably, Consider’d (1672)
• 10.: England’s Great Interest, In the Choice of This New Parliament Dedicated to All Her Free-holders and Electors (1679)
• 11.: A Letter From a Gentleman In the Country, to His Friends In London, Upon the Subject of the Penal Laws and Tests (1687)
• {part Iv}: an Expanding Vision For the Future
• 12.: An Essay Towards the Present and Future Peace of Europe By the Establishment of an European Dyet, Parliament, Or Estates (1693)

{PART I}

Foundations

The Ancient Constitution and English Liberties

1.

The People’s Ancient and Just Liberties Asserted,

in the Trial of William Penn and William Mead, at the Sessions held at the Old-Baily in London, the First, Third, Fourth and Fifth of September, 1670, against the most Arbitrary Procedure of that COURT (1670)

To the English READER.

IF EVER it were Time to Speak, or Write, ’tis 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 may’st plainly Judge.

Liberty of Conscience, is counted a Pretence for Rebellion, and Religious Assemblies, Routs and Riots; and the Defenders of both, are by them reputed Factious, and Dis-affected.

Magna Charta, is Magna Far—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 sate as Judges (after two Days and two Nights Restraint for a Verdict) in the End were Fined and Imprisoned for giving it.

Oh! 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 our 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 are really 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 imployed only to Ensnare and Ruin so many Ten Thousand Conscientious Families (so Eminently Industrious, Serviceable and Exemplary; whilst Murders can so easily obtain Pardon, Rapes be remitted, Publick Uncleanness pass unpunished, and all manner of Levity, Prodigality, Excess, Prophaneness 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 London’s Recorder, and Canterbury’s Chaplain be heard.

The first in his publick Panegyrick 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 dispence 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 chuse but Admonish all, as well Persecutors, to Relinquish their Heady, Partial, and Inhumane Persecutions (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 Huff’d, or Menaced out of that excellent Temper, to make their Parts and Persons subservient to the base Humors, and sinister Designs of the biggest Mortal upon Earth; but 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.

The TRIAL, &c.

AS THERE can be no Observation, where there is no Action; so its impossible there shall be a Judicious Intelligence without due Observation.

And since there can be nothing more Reasonable than a Right Information, especially of Publick Acts; and well knowing, how industrious some will be, to misrepresent 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 publick; 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 before named at the Old-Baily, the First, Third, Fourth and Fifth of Sept. 1670.

There being present on the Bench, as Justices,

The Citizens of London that were summoned for Jurors, appearing, were Impanelled, viz.

Cle.

Call over the Jury.

Cry.

O yes, Thomas Veer, Ed. Bushel, John Hammond, Charles Milson, Gregory Walklet, John Brightman, Wil. Plumstead, Henry Henley, James Damask, Henry Michel, Wil. Lever, John Baily.

The Form of the Oath.

You shall well and truly Try, and True Deliverance make betwixt our Soveraign Lord the King, and the Prisoners at the Bar, according to your Evidence: So help you God.

The Indictment.

That William Penn, Gent. and William Mead, late of London, Linnen-Draper, with divers other Persons, to the Jurors unknown, to the Number of Three Hundred, the 15th Day of August, in the 22th Year of the King,1 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.

Rec.

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. First, That no Advantage may be taken against me, nor I deprived of any Benefit, which I might otherwise have received. Secondly, That you will promise me a fair Hearing, and Liberty of making my Defence.

Court.

No Advantage shall be taken against you: You shall have Liberty; you shall be heard.

Penn.

Then I plead not Guilty in Manner and Form.

Cle.

What say’st thou, William Mead: Art thou Guilty in Manner and Form, as thou stand’st Indicted, or Not Guilty?

Mead.

I shall desire the same Liberty as is promised to William Penn.

Court.

You shall have it.

Mead.

Then I plead not Guilty in Manner and Form.

The Court adjourned until the Afternoon.

Cry.

O Yes, &c.

Cle.

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 Practice of the Court to the Prisoners, to make them wait upon the Tryals 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 Third of September, 1670, the Court Sat.

Cry.

O Yes, &c.

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.

Rec.

Do 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.

Rec.

Do you know there is Respect due to the Court?

Penn.

Yes.

Rec.

Why do you not pay it then?

Penn.

I do so.

Rec.

Why do you not put off your Hat then?

Penn.

Because I do not believe that to be any Respect.

Rec.

Well, the Court sets Forty Marks a-piece upon your Heads, as a Fine, for your Contempt of the Court.

Penn.

I desire it may 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.2

Mead.

I have a Question to ask the Recorder: Am I Fined also?

Rec.

Yes.

Mead.

I desire the Jury, and all People to take Notice of this Injustice of the Recorder, who spake not 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 Edw. Bushel, as if he had not kist 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 be a Person not fit to answer their Arbitrary Ends.

The Clerk read the Indictment, as aforesaid.

Cle.

Cryer, Call James Cook into the Court, give him his Oath.

Cle.

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, &c.”

Cook.

I was sent for from the Exchange, to go and disperse a Meeting in Gracious-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 Captain 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 ask’d, What do you know concerning the Prisoners at the Bar?

Read.

My Lord, I went to Gracious-Street, where I found a great Crowd of People, and I heard Mr. Penn Preach to them, and I saw Captain 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 Gracious-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.

Cle.

Cryer, 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 Captain Mead, I did not see him there.

Rec.

What say you Mr. Mead? Were you there?

Mead.

It is a Maxim in your own Law, Nemo tenetur accusare seipsum, which if it be not True Latin, I am sure that it is true English, That no Man is bound to accuse himself: And why dost thou offer to ensnare me with such a Question? Doth not this shew thy Malice? Is this like unto a Judge, that ought to be Council for the Prisoner at the Bar?

Rec.

Sir, hold your Tongue, I did not go about to ensnare you.

Penn.

I desire we may come more close to the Point, and that Silence be commanded in the Court.

Cry.

O Yes, All manner of Persons keep Silence upon Pain of Imprisonment. —— Silence in the Court.

Penn.

We confess our selves to be so far from recanting, or declining to vindicate the Assembling of our selves, 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 your selves 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 my self, with those 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 sawcy 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 meerly 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’s Lex non scripta,3that which many have studied thirty or forty Years to know, and would you have me tell you in a Moment?

Penn.

Certainly, if the Common-Law be so hard to be understood, it’s far from being very Common; but if the Lord Cook in his Institutes, be of any Consideration, he tells us, That Common-Law is Common-Right; and that Common-Right is the Great Charter Priviledges, confirmed 9 Hen. 3. 29. 25 Edw. 1. 1. 2 Edw. 3. 8. Cook Inst. 2. p. 56.4

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 Priviledges 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’s 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 the 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 Priviledges 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 Perswasions 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 Lyes, and Falshoods; for therein I am accused that I met Vi & Armis, Illicitè & Tumultuose:5 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, said, 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, Cook, he that once they called the Lord Cook, 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.6

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 mayst put on thy Hat, I have never a Fee for thee now.

Brown.

He talks at Random, one While an Independent, another While some other Religion, and now a Quaker, and next a Papist.

Mead.

Turpe est doctori cum culpa redarguit ipsum.7

Mayor.

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 Priviledge 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 Priviledges 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.

Rec.

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. P. 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 Cook in the 2 Inst. 29. on the Chapter of Magna Charta speaks.

Obser.

The Recorder being thus unexpectedly lasht for his extra-judicial Procedure, said, with an inraged 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 least 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 Priviledges 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) your selves 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 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 fourteen Years; you have thrust your self 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.

Bludw.

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.

Mayor.

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.

Cle.

Are you agreed upon your Verdict?

Jury.

Yes.

Cle.

Who shall speak for you?

Jury.

Our Foreman.

Cle.

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 Gracious-Street.

Court.

Is that All?

Foreman.

That is All I have in Commission.

Rec.

You had as good say Nothing.

Mayor.

Was it not an Unlawful Assembly? You mean he was Speaking to a Tumult of People there?

Foreman.

My Lord, This was 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 Bludworth, 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 depart, 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 as good say Nothing; therefore go and consider it once more, that we may make an End of this troublesom Business.

Jury.

We desire we may have Pen, Ink, and Paper.

Obser.

The Court adjourns for Half an Hour; which being expired, the Court returns, and the Jury not long after.

The Prisoners were brought to the Bar, and the Jurors Names called over.

Cle.

Are you agreed of your Verdict?

Jury.

Yes.

Cle.

Who shall speak for you?

Jury.

Our Foreman.

Cle.

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 Gracious-Street, the 14th of August last, 1670, and that William Mead is not Guilty of the said Indictment.

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 Hast; you are a Foreman indeed, (addressing himself to the Foreman) I thought you had understood your Place better.

Rec.

Gentlemen, you shall not be dismist, till we have a Verdict that the Court will accept; and you shall be lock’d 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 Juries Verdict.

Rec.

Stop that prating Fellow’s Mouth, or put him out of the Court.

Mayor.

You have heard that he Preach’d; that he gathered a Company of Tumultuous People; and that they do not only disobey the Martial Power, but the 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 the Soldiers would give us Leave: And (2d) because it was no New Thing, (nor with the Circumstances exprest in the Indictment, but what was usual and customary with us;) ’tis 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 Jail, and the Jury to their Chamber, Penn spake as follows:

Penn.

The Agreement of Twelve 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 contrary to this, I affirm they are perjured Men in Law. (And looking upon the Jury, said) You are Englishmen, mind your Priviledge, give not away your Right.

Bushel, &c. Nor will we ever do it.

Obser.

One of the Jury-Men pleaded Indisposition of Body, and therefore desired to be dismist.

Mayor.

You are as strong as any of them; Starve then, and hold your Principles.

Rec.

Gentlemen, you must be content with your hard Fate; let your Patience overcome it; for the Court is resolved to have a Verdict, and that before you can be dismist.

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.

Cry.

O Yes, &c.

Obser.

The Court adjourn’d till Seven of the Clock next Morning, (being the Fourth Instant, vulgarly called Sunday) at which Time the Prisoners were brought to the Bar, the Court sat, and the Jury called in, to bring in their Verdict.

Cry.

O Yes, &c.—Silence in the Court upon Pain of Imprisonment.

The Juries Names called over.

Cle.

Are you agreed upon your Verdict?

Jury.

Yes.

Cle.

Who shall speak for you.

Jury.

Our Foreman.

Cle.

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 Gracious-Street.

Mayor.

To an Unlawful Assembly.

Bushel.

No, my Lord, we give no other Verdict, than what we gave last Night; we have no other Verdict to give.

Mayor.

You are a factious Fellow; I’ll take a Course with you.

Bludw.

I knew Mr. Bushel would not yield.

Bushel.

Sir Thomas, I have done according to my Conscience.

Mayor.

That Conscience of yours would Cut my Throat.

Bushel.

No, my Lord, it never shall.

Mayor.

But I will cut yours so soon as I can.

Rec.

He has inspired the Jury; he has the Spirit of 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?

Rec.

It cannot be a Verdict, because you are Indicted for a Conspiracy; and one being found not Guilty, and not the other, it could not be a Verdict.

Penn.

If not Guilty be not a Verdict, then you make of the Jury, and Magna Charta, but a meer Nose of Wax.

Mead.

How! Is Not Guilty no Verdict?

Rec.

No, ’tis 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.

Cle.

What say you? Is William Penn Guilty of the Matter whereof he stands Indicted, in Manner and Form aforesaid, or Not Guilty?

Foreman.

Guilty of Speaking in Gracious-Street.

Rec.

What is this to the Purpose? I say I will have a Verdict. And speaking to E. Bushel, said, You are a Factious Fellow; I will set a Mark upon you; and whilst I have any Thing to do in the City, I will have an Eye upon you.

Mayor.

Have you no more Wit than to be led by such a pitiful Fellow? I will Cut his Nose.

Penn.

It is intolerable that my Jury should be thus menaced; is this according to the Fundamental Law? Are not they my proper Judges by the Great Charter of England?8 What Hope is there of ever having Justice done, when Juries are threatned, 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 threatned to be Fined, and Starved, and Ruined, if they give not in their Verdicts contrary to their Consciences.

Rec.

My Lord, you must take a Course with that same Fellow.

Mayor.

Stop his Mouth; Jailer, 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 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 spake as followeth.

Rec.

Gentlemen, we shall not be at this pass always with you; you will find the next Sessions of Parliament, there will be a Law made, that those that will not conform, shall not have the Protection 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 the Third’s Time.

Foreman.

We have given in our Verdict, and all agreed to it, and if we give in another, it will be a Force upon us to save our Lives.

Mayor.

Take them up.

Officer.

My Lord they will not go up.

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 Accomodation, as aforesaid, till they brought in their Verdict.

Cry.

O Yes, &c. The Court adjourns till to Morrow-morning at Seven of the Clock.

Obser.

The Prisoners were remanded to Newgate, where they remained till next Morning, and then were brought into the Court, which being sat, they proceeded as followeth.

Cry.

O yes, &c.—Silence in the Court upon Pain of Imprisonment.

Clerk.

Set William Penn and William Mead to the Bar. Gentlemen of the Jury, answer to your Names, Thomas Veer, Edward Bushel, John Hammond, Henry Henley, Henry Michel, John Brightman, Charles Milson, Gregory Walklet, John Bailey, William Lever, James Damask, William Plumstead, are you all agreed of your Verdict?

Jury.

Yes.

Clerk.

Who shall speak for you?

Jury.

Our Foreman.

Clerk.

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.

You have there read in Writing already our Verdict, and our Hands subscribed.

Obser.

The Clerk had the Paper, but was stop’d by the Recorder from Reading of it; and he commanded to ask for a positive Verdict.

Foreman.

If you will not accept of it; I desire to have it back again.

Court.

That Paper was no Verdict, and there shall be no Advantage taken against you by it.

Clerk.

How say you? Is William Penn Guilty, &c. or not Guilty?

Foreman.

Not Guilty.

Clerk.

How say you? Is William Mead Guilty, &c. or not Guilty?

Foreman.

Not Guilty.

Clerk.

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.

Obser.

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.

Record.

I am sorry, Gentlemen, you have followed your own Judgments and Opinions, rather than the good and wholesom Advice, which was given you; God keep my Life out of your Hands; but for this the Court fines you Forty Marks a Man, and Imprisonment till paid: 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 expresly contradicts the Fourteenth and Twenty Ninth Chapter of the Great Charter of England, which says, No Freeman ought to be amerced, but by the Oath of good and lawful Men of the Vicinage.

Rec.

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

Penn.

I can never urge the Fundamental Laws of England, but you cry, Take him away, take him away; but ’tis 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.

Obser.

They haled the Prisoners to the Bale-dock, and from thence sent them to Newgate, for Non-payment of their Fines; and so were their Jury.

2.

England’s Present Interest Considered, withHonour to thePrince,and Safety to thePeople (1675)

TheIntroduction.

THERE is no Law under Heaven, which hath its Rise from Nature or Grace, that forbids Men to deal Honestly and Plainly, with the Greatest, in Matters of Importance to their present and future Good: On the contrary, the Dictates of both enjoyn every Man that Office to his Neighbour; and from Charity among Private Persons, it becomes a Duty indispensible to the Publick. Nor do Worthy Minds think ever the less kindly of Honest and Humble Monitors; and God knows, that oft-times Princes are deceived, and Kingdoms languish for Want of them. How far the Posture of our Affairs will justify this Address, I shall submit to the Judgment, and Observation of every Intelligent Reader.

Certain it is, that there are few Kingdoms in the World more divided within themselves, and whose Religious Interests lye more seemingly cross to all Accommodation, than that we Live in; which renders the Magistrate’s Task hard, and giveth him a Difficulty next to invincible.

Your Endeavours for an Uniformity have been many; Your Acts not a few to enforce it; but the Consequence, whether you intended it or no, through the Barbarous Practices of those that have had their Execution, hath been the spoiling of several Thousands of the Free Born People of this Kingdom, of their Unforfeited Rights. Persons have been flung into Goals,2Gates and Trunks broke open, Goods distrained, till a Stool hath not been left to sit down on: Flocks of Cattle driven, whole Barns full of Corn seized, Thresh’d, and carried away: Parents left without their Children, Children without their Parents, both without Subsistence.

But that which aggravates the Cruelty, is, The Widow’s Mite hath not escaped their Hands; they have made her Cow the Forfeiture of her Conscience; not leaving her a Bed to lye on, nor a Blanket to cover her.3 And which is yet more Barbarous, and helps to make up this Tragedy, the Poor Helpless Orphan’s Milk, Boiling over the Fire, has been flung to the Dogs, and the Skillet made Part of their Prize: That, had not Nature in Neighbours been stronger than Cruelty in such Informers and Officers, to open her Bowels for their Relief and Subsistence, they must have utterly perish’d.

Nor can these inhuman Instruments plead Conscience or Duty to those Laws, who have abundantly transcended the severest Clause in them; for to see the imprison’d, has been Suspicion enough for a Goal; and to Visit the Sick, to make a Conventicle: Fining and Straining for Preaching, and being at a Meeting, where there hath been neither; and Forty Pound for Twenty, at Pick and Choose too, is a moderate Advance with some of them.

Others thinking this a Way too dull and troublesome, alter the Question, and turn, Have you met? Which the Act intends; to, Will you Swear? Which it intendeth not: So that in some Places it hath been sufficient to a Premunire, that Men have had Estates to lose; I mean such Men, who, through Tenderness, refuse the Oath; but by Principle like the Allegiance, not less than their Adversaries.4

Finding then by sad Experience, and a long Tract of Time, that the very Remedies applied to cure Dissension, increase it; and that the more Vigorously an Uniformity is Coercively Prosecuted, the wider Breaches grow, the more inflamed Persons are, and fix’d in their Resolutions to stand by their Principles, it should, methinks, put an End to the Attempt: For besides all other Inconveniences to those that give them Trouble, their very Sufferings beget that Compassion in the Multitude, which rarely misses of making many Friends, and proves often a Preparation for not a few Proselytes. So much more Reverend is Suffering, than making Men suffer for Religion, even of those that cannot suffer for their Religion, if yet they have any Religion to suffer for. Histories are full of Examples: The Persecution of the Christian Religion made it more illustrious than it’s Doctrine. Perhaps it will be denied to English Dissenters, that they rely upon so good a Cause, and therefore a Vanity in them to expect that Success. But Arrianism it self, once reputed the foulest Heresie by the Church, was by no Artifice of its Party so disseminated, as the severe Opposition of the Homoousians.5

Contests naturally draw Company, and the Vulgar are justified in their Curiosity, if not Pity, when they see so many Wiser Men busie themselves to suppress a People, by whom they see no other Ill, than that for Non-Conformity, in Matters of Religion, they bear Injuries and Indignities Patiently.

To be short; If all the Interruptions, Informations, Fines, Plunders, Imprisonments, Exiles and Blood, which the great Enemy of Nature, as well as Grace, hath excited Man to, in all Ages, about Matters of Faith and Worship, from Cain and Abel’s Time to ours, could furnish us with sufficient Presidents,6 that the Design proposed by the Inflictors of so much Severity, was ever Answered; that they have smother’d Opinions, and not inflamed, but extinguish’d Contest; it might perhaps, at least prudentially, give Check to our Expectations, and allay my just Confidence in this Address: But since such Attempts have ever been found Improsperous, as well as that they are too costly, and have always procured the Judgments of God, and the Hatred of Men: To the Sufferers, Misery; to their Countries, Decay of People and Trade; and to their own Consciences an extream Guilt; I fall to the Question, and then the Solution of it: In which, as I declare, I intend nothing that should in the least abate of that Love, Honour and Service that are due to you, so I beseech you, do me the Justice as to make the Fairest Interpretation of my Expressions: For the whole of my Plain and Honest Design is, To offer my Mite for the Increase of your True Honour, and my Dear Country’s Felicity.

The QUESTION.

WHAT is most Fit, Easie and Safe, at this Juncture of Affairs, to be done, for Composing, at least Quieting Differences; for allaying the Heat of contrary Interests, and making them Subservient to the Interest of the Government, and Consistent with the Prosperity of the Kingdom?

The ANSWER.

I. AN INVIOLABLE and Impartial Maintenance of English Rights.

II. Our Superiors Governing themselves upon a Ballance, as near as may be, towards the several Religious Interests.

III. A Sincere Promotion of General and Practical Religion.

I shall briefly discourse upon these Three Things, and endeavour to prove them a Sufficient, if not the Only Best Answer, that can be given to the Question propounded.

CHAP. I.

OfEnglish Rights.

I. Of English Rights, in the British, Saxon and Norman Times. Particularly of Liberty and Property. Of Legislation. Of Juries. That they are Fundamental to the Government, and but Repeated and Confirmed by the Great Charter. The Reverence paid them by Kings and Parliaments, and their Care to preserve them. The Curse and Punishment that attended the Violators. More General Considerations of Property, &c. The Uncertainty and Ruin of Interests, where is it not maintain’d: Divers Presidents: That it is the Prince’s Interest to preserve it inviolably: That it is not justly Forfeitable for Ecclesiastical Non-Conformity; and that where the Property is Sacrificed for it, the Government is chang’d from Civil to Ecclesiastical, from the Parliament-House to the Vestry.

THERE is no Government in the World, but it must either stand upon Will and Power, or Condition and Contract: The one Rules by Men, the other by Laws. And above all Kingdoms under Heaven, it is England’s Felicity to have her Constitution so impartially Just and Free, as there cannot well be any Thing more remote from Arbitrariness, and Zealous of preserving the Laws, by which it’s Rights are maintained.

These Laws are either Fundamental, and so Immutable; or more Superficial and Temporary, and consequently alterable.

By Superficial Laws, we understand such Acts, Laws or Statutes, as are suited to present Occurrences, and Emergencies of State; and which may as well be abrogated, as they were first made, for the Good of the Kingdom: For Instance, those Statutes that relate to Victuals, Cloaths, Times, and Places of Trade, &c. which have ever stood, whilst the Reason of them was in Force; but when that Benefit, which did once redound, fell by fresh Accidents, they ended, according to that Old Maxim, Cessante ratione legis, cessat lex.7

By Fundamental Laws I do not only understand such as immediately spring from Synteresis (that Eternal Principle of Truth and Sapience)8 more or less disseminated through Mankind, which are as the Corner-Stones of Humane Structure, the Basis of Reasonable Societies, without which all would run into Heaps and Confusion; to wit, Honestè vivere, Alterum non laedere, jus suum cuique tribuere, that is, To live honestly, not to hurt another, and to give every one their Right, (Excellent Principles, and common to all Nations) though that it self were sufficient to our present Purpose: But those Rights and Priviledges, which I call English, and which are the proper Birth-Right of Englishmen, and may be reduced to these Three.

I. An Ownership, and Undisturbed Possession: That what they have, is Rightly theirs, and no Body’s else.

II. A Voting of every Law that is made, whereby that Ownership or Propriety may be maintained.

III. An Influence upon, and a Real Share in that Judicatory Power that must apply every such Law, which is the Ancient Necessary and Laudable Use of Juries: If not found among the Britains, to be sure Practised by the Saxons, and continued through the Normans to this very Day.

That these have been the Ancient and Undoubted Rights of Englishmen, as Three great Roots, under whose Spacious Branches the English People have been wont to shelter themselves against the Storms of Arbitrary Government, I shall endeavour to prove.

I.

An Ownership and Undisturbed Possession.

This relates both to Title and Security of Estate, and Liberty of Person, from the Violence of Arbitrary Power.

’Tis true, the Foot-Steps of the British Government are very much overgrown by Time. There is scarcely any Thing remarkable left us, but what we are beholden to Strangers for: Either their own Unskilfulness in Letters, or their Depopulations and Conquests by Invaders, have deprived the World of a particular Story of their Laws and Customs, in Peace or War. However, Caesar, Tacitus, and especially Dion, say enough to prove their Nature and their Government to be as far from Slavish, as their Breeding and Manners were remote from the Education and greater Skill of the Romans.9Beda and M. Westminster say as much.10

The Law of Property they observed, and made those Laws that concern’d the Preservation of it.

The Saxons brought no Alteration to these Two Fundamentals of our English Government; for they were a Free People, govern’d by Laws, of which they themselves were the Makers: That is, there was no Law made without the Consent of the People, de majoribus omnes, as Tacitus observeth of the Germans in general.11 They lost nothing by Transporting of themselves hither; and doubtless found a greater Consistency between their Laws, than their Ambition. For the Learned Collector of the British Councils tells us, That Ethelston, the Saxon King, pleading with the People, told them, Seeing I, according to your Law, allow what is yours, do ye so with me.12 Whence Three Things are observable. First, That something was Theirs, that no Body else could dispose of. Secondly, That they had Property by their own Law, therefore they had a Share in making their own Laws. Thirdly, That the Law was Umpire between King and People; neither of them ought to infringe: This, Ina, the Great Saxon King, confirms. There is no Great Man, saith he, nor any other in the whole Kingdom, that may abolish Written Laws. It was also a great Part of the Saxon Oath, administred to the Kings, at their Entrance upon the Government, To Maintain and Rule according to the Laws of the Nation.

Their Parliament they called Micklemote, or Wittangemote. It consisted of King, Lords, and People, before the Clergy interwove themselves with the Civil Government. And Andrew Horn, in his Mirror of Justice, tells us, That the Grand Assembly of the Kingdom in the Saxon Time, was to confer of the Government of God’s People, how they might be kept from Sin, in Quiet, and have Right done them, according to the Customs and Laws.13

Nor did this Law end with the Saxon Race: William the Conqueror, as he is usually called, quitting all Claim by Conquest, gladly stooped to the Laws observed by the Saxon Kings, and so became a King by Leave; valuing a Title by Election, before that which is founded in Power only. He therefore, at his Coronation, made a Solemn Covenant, to maintain the Good, Approved, and Ancient Laws of this Kingdom, and to Inhibit all Spoil and Unjust Judgment.

And this, Henry the First, his Third Son, among other his Titles, mentioned in his Charter, to make Ely a Bishoprick, calls himself, Son of William the Great, who by Hereditary Right, (not Conquest) succeeded King Edward (called the Confessor) in this Kingdom.

An Ancient Chronicle of Litchfield, speaks of a Council of Lords that advised William of Normandy, To call together all the Nobles and Wise Men throughout their Counties of England, that they might set down their own Laws and Customs; which was about the Fourth Year of his Reign: Which implies that they had Fundamental Laws, and that he intended their Confirmation.

And one of the first Laws made by this King, which, as a Notable Author saith, may be called the First Magna Charta in the Norman Times (by which he reserved to himself nothing of the Freemen of this Kingdom, but their Free-Service) in the Conclusion of it, saith, That the Lands of the Inhabitants of this Kingdom were granted to them in Inheritance of the King, and by the Common Council of the whole Kingdom; which Law doth also provide, That they shall hold their Lands and Tenements well or quietly, and in Peace, from all unjust Tax and Tillage: Which is farther expounded in the Laws of Henry the First, Chap. 4. That no Tribute or Tax should be taken, but what was due in Edward the Confessor’s Time. So that the Norman Kings claim no other Right in the Lands and Possessions of any of their Subjects, than according to English Law and Right.

And so tender were they of Property in those Times, that when Justice it self became Importunate in a Case, no Distress could issue without publick Warrant obtained: Nor that neither, but upon Three Complaints first made. Nay, when Rape and Plunder were Rife, and Men seem’d to have no more Right to their own, than they had Power to maintain, even then was this Law a sufficient Sanctuary to the Oppressed, by being publickly pleaded at the Bar against all Usurpation; though it were under the Pretence of their Conqueror’s Right it self; as by the Case of Edwin of Sharnbourn in Camden’s Britannia, plainly appears.14

The like Obligation to maintain this Fundamental Law of Property, with the appendent Rights of the People, was taken by William Rufus, Henry the First, Stephen, Henry the Second, Richard the First, John, and Henry the Third: Which brings me to that Famous Law, called, Magna Charta, or The Great Charter of England, of which more anon; it being my Design to shew, That nothing of the Essential Rights of Englishmen was thereby, De Novo, granted, as in Civility to King Henry the Third it is termed; but that they were therein only Repeated and Confirmed. Wherefore I shall return to Antecedent Times, to fetch down the remaining Rights.

The second Part of this first Fundamental is, Liberty of Person. The Saxons were so tender in the Point of Imprisonment, that there was little or no use made of it: Nor would they so Punish their Bond-men, vinculis coercere rarum est.

In case of Debt or Damage, the Recovery thereof was either by a Delivery of the just Value in Goods, or, upon the Sheriffs Sale of the Goods, in Money; and if that satisfied not, the Land was extended: And when all was gone, they were accustomed to make their last Siezure upon the Party’s Arms, and then he was reputed an Undone Man, and cast upon the Charity of his Friends for Subsistence: But his Person was never Imprison’d for the Debt: No, not in the King’s Case. And to the Honour of King Alfred be it spoken, He imprison’d one of his Judges for Imprisoning a Man in that Case.

We find among his Laws this Passage, Qui immerentem Paganum vinculis constrinxerit, decem solidis noxam sarcito: “That if a Man should Imprison his Vassal or Bondman Unjustly, his Purgation of that Offence should not be less than the Payment of Ten Shillings”; A Sum very considerable in those Days, more than Ten Pounds now.

Nor did the Revolution from Saxon to Norman drop this Priviledge: For besides the general Confirmation of former Rights by William, sirnamed the Conqueror, his Son Henry the First, particularly took such Care of continuing This Part of Property, inviolable, that, in his Time, no Person was to be Imprison’d for committing of Mortal Crime it self, unless he were first attainted by the Verdict of Twelve Men; that is, a Jury, which was to be of the Neighbourhood.

Thus much for the first of my Three Fundamentals, Right of Estate, and Liberty of Person: That is to say, I am no Man’s Bond-man, and what I Possess is Absolutely Mine Own.

II.

A Voting of every Law that is made, whereby that Ownership or Property may be maintained.

This second Fundamental of our English Government, was no Incroachment upon the Kings of more modern Ages, but extant long before the Great Charter made in the Reign of Hen. III. Even as early as the Britain’s themselves; and that it continued to the Time of Hen. 3. is evident from several Instances.

Caesar, in his Commentaries, tells us, That it was the Custom of the British Cities to elect their General, or Commander in Chief, in Case of War. Dion assures us, in the Life of Severus the Emperor, That in Britain the People held a Share in Power and Government; which is the modestest Construction his Words will bear. And Tacitus in the Life of Agrippa, says, They had a Common Council, and that one great Reason of their Overthrow by the Romans, was, their not Consulting with, and Relying upon their Common Council.15 Again, Both Beda and Mat. Westminster tell us, That the Britain’s summoned a Synod, chose their Moderator, and expell’d the Pelagian Creed. All which supposes Popular Assemblies, with Power to order National Affairs.16

And indeed, the Learned Author of the British Councils gives some Hints to this Purpose, That they had a Common Council, and call’d it Kyfr-y-then.

The Saxons were not inferiour to the Britain’s in this Point, and Story furnisheth us with more and plainer Proofs. They brought this Liberty along with them, and it was not likely they should lose it, by transporting themselves into a Country where they also found it. Tacitus reports it to have been generally the German-Liberty; like unto the Concio of the Athenians and Lacedaemonians.17

They called their Free-men Frilingi, and These had Votes in the Making and Executing the General Laws of the Kingdom.

In Ethelbert’s Time, after the Monk Austin’s Insinuations had made his Followers a Part of the Government, the Commune Concilium was tam Cleri quam Populi, as well Clergy as People. In Ina’s Time, Suasu & instituto Episcoporum, omnium Senatorum & natu majorum Sapientum populi; Bishops, Lords, and Wise Men of the People. Alfred after him reform’d the former Laws, Consulto sapientum, by the Advice of the Sages of the Kingdom. Likewise Matters of Publick and General Charge, in Case of War, &c. we have granted in the Assembly, Rege, Baronibus & Populo. By the King, Barons and People. And though the Saxon Word properly imports the Meeting of Wise Men, yet All that would come might be present, and interpose their Like or Dislike of the present Proposition: As that of Ina, in magnâ servorum Dei frequentiâ. Again, Commune Concilium seniorum & populorum totius regni; “The Common Council of the Elders, or Nobles, and People of the whole Kingdom.’ The Council of Winton, Ann. 855. is said to be in the Presence of the Great Men, aliorumque fidelium infinitâ multitudine; “And an Infinite Multitude of other Faithful People”; which was nigh Four Hundred Years before the Great Charter was made.

My last Instance of the Saxon Ages shall be out of the Glossary of the learned English Knight, H. Spelman: The Saxon Witangemote or Parliament (saith he) is a Convention of the Princes, as well Bishops as Magistrates, and the Free People of the Kingdom: And that the said Wittangemote consulted of the common Safety in Peace and War, and for the Promotion of the common Good.18

William of Normandy chose rather to rely upon the People’s Consent, than his own Power to obtain the Kingdom. He Swore to them to maintain their old Laws and Priviledges; they to him Obedience for his so Governing of them: For, as a certain Author hath it, He bound himself to be Just, that he might be Great; and the People to submit to Justice, that they might be Free. In his Laws, C. 55. “We by the Common Council of the whole Kingdom, have granted the People’s Lands to them in Inheritance, according to their Ancient Laws.”

Matters of general Expence upon the whole Body of the People, were settled by this Great Council, especially in the Charge of Arms imposed upon the Subject. The Law saith it to have been done by the Commune Concilium of the Kingdom.

So W. Rufus and Henry the First, were received by the common Consent of the People. And Stephen’s Words were Ego Stephanus, Dei gratia, Assensu Cleri & Populi in Regno Angliae Electus, &c. “I Stephen, by the Grace of God, and Consent of the Clergy and People, Chosen King of England, &c.” So King John was chosen, Tam Cleri quan Populi unanimi consensu & favore, “By the Favour and Unanimous Consent of the Clergy and People”: And his Queen is said to have been crown’d de communi consensu & concordi voluntate Archiepiscoporum, Comitum, Baronum, Cleri & Populi totius Regni, i.e. “by the common Assent and unanimous Good-will of the Arch-Bishops, Bishops, Counts, Barons, Clergy and People of the whole Kingdom.” King Edw. I. also desired Money of the commune Concilium or Parliament, “as you have given in my Time, and that of my Progenitors, Kings, &c.”

All which shows, that it was Antecedent to the Great Charter, not the Rights therein repeated and confirmed, but the Act it self.

And King John’s Resignation of the Crown to the Pope, being question’d upon some Occasion in Edward III. Time, it was agreed upon, that he had no Power to do it, without the Consent of the Dukes, Prelates, Barons, and Commons:

And as Paradoxal as any may please to think it, ’tis the great Interest of a Prince, that the People should have a Share in the making of their own Laws; where ’tis otherwise, they are no Kings of Free-men, but Slaves, and those their Enemies for making them so. Leges nullâ aliâ causâ nos tenent, quam quod judicio populi receptae sunt; “The Laws (saith Ulpian) do therefore oblige the People, because they are allowed of by their Judgment.”19 And Gratian, in Dec. distinct. 4. Tum demum humanae leges habent vim suam, cum fuerint non modo institutae, sed etiam firmatae Approbatione Communitatis: “It is then (saith he) that Humane Laws have their due Force, when they shall not only be devised, but confirm’d by the Approbation of the People.”20

I. It makes Men Diligent, and increaseth Trade, which advances the Revenue: For where Men are not Free, they will never seek to improve, because they are not sure of what they have, and less of what they get.

II. It frees the Prince from the Jealousie and Hate of his People; and consequently, the Troubles and Danger that follow; and makes his Province easie and safe.

III. If any Inconvenience attends the Execution of any Law, the Prince is not to be blam’d: It is their own Fault that made it.

I shall now proceed to the Third Fundamental, and by plain Evidence prove it to have been a Material Part of the Government, before the Great Charter was Enacted.

III.

The People have an Influence upon, and a Great Share in the Judicatory Power, &c.

That it was a Brittish Custom, I will not affirm, but have some Reason to suppose: For if the Saxons had brought it with them, they would also have left it behind them, and in all Likelihood there would have been some Footsteps in Saxony of such a Law or Custom, which we find not. I will not enter the Lists with any about this: This shall suffice me, that we find it early among the Saxons in this Country, and if they, a Free People in their own Country, settling themselves here as a New Planted Colony, did supply what was defective in their own Government, or add some New Freedom to themselves, as all Planters are wont to do; which are as those First and Corner Stones, their Posterity, with all Care and Skill, are to build upon, That, it self, will serve my Turn to prove it a Fundamental: That is, such a First Principle in our English Government, by the Agreement of the People, as ought not to be Violated. I would not be understood of the Number, but of the Way of Tryal: I mean, That Men were not to be Condemned but by the Votes of the Freemen.

N. Bacon thinks that in ruder Times the Multitude tryed all among themselves; and fancies it came from the Grecians, who determin’d Controversies by the Suffrage of 34, or the major Part of them.21

Be it as it will, Juries the Saxons had; for in the Laws of King Etheldred, about Three Hundred Years before the Entrance of the Norman Duke, we find Enacted, in singulis Centuriis, &c. thus English’d, In every Hundred let there be a Court, and let Twelve Ancient Freemen, together with the Lord of the Hundred, be Sworn, that they will not Condemn the Innocent, or Acquit the Guilty. And so strict were they of those Ages, in observing this Fundamental Way of Judicature, that Alfred put one of his Judges to Death, for passing Sentence upon a Verdict (corruptly obtain’d) upon the Votes of the Jurors, Three of Twelve being in the Negative. If the Number was so Sacred, What was the Constitution it self?

The very same King Executed another of his Judges, for passing Sentence of Death upon an Ignoramus return’d by the Jury; and a third, for Condemning a Man upon an Inquest taken ex officio, when as the Delinquent had not put himself upon their Trial. More of his Justice might be mention’d even in this very Case.

There was also a Law made in the Time of Ætheldred, when the Brittains and Saxons began to grow tame to each other, and intercommon amicably, that faith, Let there be Twelve Men of Understanding, &c. Six English, and Six Welsh, and let them deal Justice, both to English and Welsh.

Also in those simple Times, if a Crime extended but to some Shameful Punishment, as Pillory or Whipping (the last whereof, as usual as it has been with us, was inflicted only upon their Bondmen) the Penance might be reduc’d to a Ransom, according to the Nature of the Fault; but it must be Assest in the Presence of the Judge, and by the Twelve, that is, the Jury of Frilingi, or Freemen.

Hitherto Stories tell us of Trials by Juries, and those to have consisted, in General Terms, of Freemen: But Per Pares, or by Equals, came after, occasion’d by the considerable Saxons, neglecting that Service, and leaving it to the inferiour People, who lost the Bench, Their Ancient Right, because they were not thought Company for a Judge or Sheriff: And also from the Growing Pride of the Danes, who slighted such a Rural Judicature, and despised the Fellowship of the mean Saxon Freemen in publick Service. The Wise Saxon King perceiving this, and the dangerous Consequence of submitting the Lives and Liberties of the Inferiour (but not less useful People) to the Dictates of any such Haughty Humour; and on the other Hand, of subjecting the Nobler Sort to the Suffrage of the Inferiour Rank, did, with the Advice of his Wittangemote, or Parliament, provide a third Way, more Equal and Grateful, and by Agreement with Gunthurn the Dane, settled the Law of Peers, or Equals; which is the Envy of Nations, but the Famous Priviledge of our English People: One of those Three Pillars the Fabrick of this Ancient and Free Government stands upon.

This Benefit gets Strength by Time, and is receiv’d by the Norman-Duke and his Successors; and not only confirm’d in the Lump of other Priviledges, but in one Notable Case, for all, which might be brought to prove, that the Fundamental Priviledges, mentioned in the Great Charter, 9 of Hen. 3. were Before it. The Story is more at large deliver’d by our Learned Selden:22 But thus, William having given his Half Brother Odo, a large Territory in Kent, with the Earldom, and he taking Advantage at the King’s being displeased with the Archbishop of Canterbury, to possess himself of some of the Lands of that See, Landfrank, that succeeded the Archbishop, inform’d hereof, petition’d the King for Justice, secundum legem terrae, according to the Law of the Land: Upon which the King summon’d a County-Court, where the Debate lasted three Days, before the Freemen of Kent, in the Presence of Lords and Bishops, and others Skilful in the Law, and the Judgment passed for the Archbishop, Upon the Votes of the Freemen.

By all which it is (I hope) sufficiently and inoffensively manifested, that these three Principles, viz.

1. That English Men have the alone Right of Possession and Disposition of what is theirs.

2. That they are Parties to the Laws of their Country, for the Maintenance thereof.

3. That they have an Influence upon, and a real Share in the Judicatory Power, that applys those Laws, have been the Ancient Rights of the Kingdom, and common Basis of the Government: That which Kings, under all Revolutions have sworn to maintain, and History affords us so many Presidents to confirm. So that the Great Charter made in the 9th of Henry the IIId. was not the Nativity, but Restoration of Ancient Priviledges from Abuses. No Grant of New Rights, but a New Grant, or Confirmation rather, of Ancient Laws and Liberties, violated by King John, and restored by his Successor, at the Expence of a long and bloody War; which shewed them as resolute to keep, as their Ancestors had been careful to make those excellent Laws.

And so I am come to the Great Charter, which is comprehensive of what I have already been discoursing, and which I shall briefly touch upon, with those successive Statutes that have been made in Honour and Preservation of it.

I shall rehearse so much of it as falls within the Consideration of the foregoing Matter (which is a great deal in a little) with something of the Formality of Grant and Curse; that this Age may see, with what Reverence and Circumspection our Ancestors governed themselves in confirming and preserving of it.

“Henry by the Grace of God King of England, &c. To all Archbishops, Earls, Barons, Sheriffs, Provosts, Officers, unto 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 meer and free Will have given and granted to all Archbishops, &c. and to all Freemen of this our Realm, these Liberties underwritten, to be holden and kept in this our Realm of England for evermore.”

Tho’ in Honour to the King, it is said to be out of his meer and free Will, as if it were his meer Favour, yet the Qualification of the Persons, he is said to grant the ensuing Liberties to, shews, that they are Terms of Formality, viz. To all Freemen of this Realm. Which supposes there were Freemen before this Grant; and that Character also implies they must have had Laws and Liberties: Consequently, this was not an Infranchising of them, but a confirming to Freemen their just Privileges they had before. The Words of the Charter are these:

I stand amazed, how any Man can have the Confidence to say, These Privileges were extorted by the Barons Wars, when the King declares, that what he did herein, was done freely: Or that they were new Privileges, when the very Tenour of the Word proves the contrary: For Freehold, Liberties, or Free Customs, are by the Charter it self supposed to be in the Possession of the Freemen at the making and publishing thereof. For observe, No Freeman shall be taken or imprison’d: Then he was free: This Liberty is his Right. Again, No Freeman shall be disseised of his Freehold, Liberties, or free Customs. Then certainly he was in Possession of them: And that great Doctor in the Laws of England, Chief Justice Cook, in his Proem to the 2d Part of his Institutes, tells us, that these Laws and Liberties were gathered and observed, amongst others, in an intire Volume, by King Edward the Confessor; confirmed by William, sirnamed the Conqueror; which were afterwards ratify’d by Henry the First; enlarged by Henry the Second, in his Constitutions at Clarendon; and after much Contest, and Blood spilt, between King John and the Barons concerning them, were solemnly established at Running-Mead by Stanes: And lastly, brought to their former Station, and publish’d by this King Henry the Third, in the 9th Year of his Reign.

And though evil Counsellors would have provok’d him to void his Father’s Act and his own, as if the first had been the Effect of Force, the other of Non-Age; yet it so pleased Almighty