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The Ordeal Of William Penn
Long before he founded his Quaker commonwealth in America, he stood up for religious freedom against the awesome power of the Crown—and put the entire English-speaking world in his debt
April 1964 | Volume 15, Issue 3
Penn, assured that no advantage would be taken of him, pleaded “not guilty.” The court very soon adjourned until the afternoon; and the anonymous “observer” to whom we are indebted for a lively account of the trial, and who was obviously outraged by the treatment that the prisoners received, suggests that it was the constant and unkind practice of the court to make prisoners “wait on the trials of Felons and Murderers, thereby designing in all probability, both to affront and tire them.” When the adjournment ended late in the afternoon, there was an altercation. The defendants were wearing their hats in court, having put them on when the Mayor asked who had ordered them off; now the court began to bait the prisoners—did they know the respect one showed to the court? If they did not pull off their hats they would be fined forty marks (about seventy-five dollars) apiece.
Penn now began his line of studied, polite insolence to the court, an attitude that lasted throughout the trial. He had tangled with Sir Samuel Starling before, and knew him for a man who stood on nothing but his dignity; and he quickly sized up the pompous Recorder as a bird of the same feather. The bench, said Penn, and not the defendants should be fined, since the bench had ordered the hats put on. Mead, backing up Perm’s line a little cumbrously, called on all people to take notice of this injustice; and added, like some Greek chorus: “O fear the Lord, and dread his Power, and yield unto the Guidance of his Holy Spirit, for He is not far from every one of you.”
Penn and Mead conducted their own case, without lawyers. The trial was in the Elizabethan manner, each side criticizing and contradicting the other, and speaking out of turn. Meanwhile the packed audience was applauding Penn, so that it had to be cautioned by the crier to keep silence upon pain of imprisonment.
Witnesses for the prosecution estimated the “great concourse” which the defendants had addressed at something between 300 and 500. The Recorder asked Mead what he thought the number was—had he been there? Mead quoted legal Latin back at him—“No man is bound to accuse himself … Why dost thou offer to ensnare me with such a question? … Doth not this show thy malice? Is this like unto a Judge that ought to be Counsel for the Prisoner at the Bar?”
The Recorder: “Sir, hold your tongue, I do not go about to ensnare you.”
The room was in an uproar, and Penn suggested that silence be demanded; and when this was done he briefly stated their case: They would not recant; they declined even to vindicate “the assembling of ourselves to preach, pray, or worship the Eternal, Holy, Just God …” It was “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.”
Alderman Brown interrupted to point out that Penn was not on trial for worshipping God, but for breaking the law.
Penn instantly affirmed that he had broken no law; and to the end that the bench, the jury, and himself, “with those that hear us,” might have a more direct understanding of the procedure, he desired to know by what law it was that he was prosecuted.
The Recorder, wary of a trap, answered “the Common Law”; and added, conscious that his reply sounded a little vague, that he could not be expected to “run up so many years, and over so many adjudged cases which we call Common Law,” to answer Penn’s curiosity.
Penn retorted that the answer was very short of his question; “if it be common, it should not be so hard to produce.”
THE RECORDER (losing his temper): You are a saucy fellow, speak to the Indictment.
PENN : You are many mouths and ears against me … I say again, unless you show me and the People the law you ground your indictment upon [emphasis supplied—Penn never forgot his audience], I shall take it for granted your proceedings are merely arbitrary.
THE RECORDER (feeling himself cornered): 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. … Where there is no law there is no transgression.
THE RECORDER (unable to answer this): You are an impertinent fellow. It’s lex non scripta [law that is not written], that which many have studied thirty or forty years to know, and would you have me tell you in a moment?
Penn quoted the Institutes of Lord Coke (15521634), that implacable adherent of common law, referred to the privileges in Magna Charta, and cited statutes.
THE RECORDER (now thoroughly confused): 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; [then, doubtless, turning to the jury] though the rights and privileges of every Englishman be concerned in it.
THE RECORDER (his back against the wall) : Sir, we must not stand to hear you talk all night.