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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
If he had never come across the Great Sea, it he had never founded his peaceful commonwealth, we would still be in debt to William Penn. At twenty-six, with all his better-known achievements before him, he performed an enduring service to ihe liberties of the English-speaking world. It was London in 1670, ten years after the overthrow of Cromwell’s Puritans and the Restoration of the Stuarts. A new crusading faith was making its appearance (they are always annoying to the authorities), and young Perm, a Quaker agitator, was on trial for disturbing the peace.
Members of the court threatened the jury with fines and hinted at torture if they did not bring in a verdict to the judge’s taste—but they would not yield: “NOR WILL WE EVER DO IT!” their foreman shouted in answer to Penn’s impassioned appeal, “Give not away your right!” The trial is a landmark in English and American history.
Less than qoo years ago these twelve men established the independence of English juries: they should make their own decisions, and must not be “led by the nose” by any court. The right they defended was embodied in Magna Charta, which provided: “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 Laws of the land.” Now that pledge, so painfully wrung from King John, was being discarded by the courts. Three years before Penn s trial, the House of dominons had investigated Lord Chief Justice Keeling in connection with official misconduct, asserting that he had undervalued, vilified, and condemned Magna Charta, “the great preserver of our lives, freedom and property’ : and on November 13, 1667, an entry was made in the Parliament [ournal: “Resolved that the precedents and practice of fining or imprisoning jurors for verdicts is illegal.” But this resolution had not stopped the practices of the judges. What did stop them was the obstinate courage of an English jury who had faith in their law, and knew how to assert it, nuclei the skillful leadership of the man whom they were trying.
The members of this jury were little, everyday men, none of them gentlemen, as Pcnn was described in the indictment, men of no importance. In ordinary circumstances a trial for disturbing the peace would have been held before only a single judge, who would quickly have sent the accused to jail, and the case would have been forgotten. Eut Pcnn had fired the Quakers with his dogged insistence that they had the right to worship their own God in their own way; to doll their headgear to no man, not even to any judge, for to God only was such obeisance due: and to meet quietly Io worship in the open air in Gracechuich Street (sometimes known as “Gracious Street”), in the parish of Bridgeware!, London.
Penn was behind this “nuisance,” and was causing all the trouble, claiming the lights of Englishmen—just as it Quakers could be thought of in those terms. So the Crown decided to put on a show; and summoned the Lord Mayor, Sir Samuel Starling, in his robes and his massive gold chain and his rather pitiful ignorance of the law, even if he cotdd recognize a nuisance, especially when “rights” were being claimed to defend it. With him sat the Recorder, John Howel, the chief criminal judge of the City of London, equally unlearned in the law which he was supposed to administer, a stupid man with little to sustain him except a few worn-thin Latin proverbs which he took delight in misapplying. He was a dull, heavy man, who was soon angry when the trial came alive, and kept his hot temper simmering; he suspected that Penn was making fun of him—which indeed Penn was. Sir John Robinson, the prosecutor for the Crown, was Lieutenant of the Tower and had come to know this obstinate young Quaker agitator and pamphleteer when he had been sent to the Tower for nine months not long before to keep him out of mischief—“in safe custody,” as the phrase went. Four aldermen also sat on the bench, all of them knights, and three knighted sheriffs. And there was a goodly crowd of spectators who hated judges, and would not observe silence in court, and so strongly expressed their sympathy with the prisoners that now and then the Recorder had to call them to order.
… William’s father, Sir William Perm, a Royalist at heart, was still a practical man and knew how to get along during the Protectorate. Hc advanced under Cromwell to become Rear Admiral of the Irish Seas and Vice Admiral in command of England’s Third Fleet. After Sir William defeated the Dutch in 1653, when William was eight, the Protector appointed him General at Sea; many enemy ships, casualties, prisoners, and pri/es lay to his credit. Hut in two or three years the Admiral was in the Tower, suspected of being too close to the exiled Charles 11. Released in five weeks, he went to his castle at Macroon in Ireland, and it was there that William saw the “inner light” for the first time—the quickening of man’s soul by direct mystical communication with its Creator. For, as we are inlormed by various Penn biographers, an itinerant and eloquent Quaker named Thomas Loe had been invited to Macroon, and when he preached, a black servant belonging to William’s father wept aloud; William, watching his lather with awe, saw the tears running down his cheeks, and he too was deeply moved. They were told of the new doctrine that men had the right to wait upon the Lord unaided by any kind of priest. Loe talked ol’ the simplicity of honest, plain living, devoid of plumes and laces, and of the dignity of humility.
The Penns lived four years in Ireland. Oliver Cromwell died in 1658, when William was fourteen. “It was the joyfullest funerall that I ever saw,” wrote the essayist and diarist, John Evelyn, “for there was none that Cried, but dogs, which the souldiers hooted away with a barbarous noise, drinking & taking tabacco in the streetes as they went.” The Penns had returned from Ireland by 1660, when Charles Il entered London in triumph, and the boy may have seen “the waves strew’d with flowers, the bells ringing, the streetes hung with tapissry, fountaines running with wine.” Admiral Perm, who had helped in the Restoration, was knighted and made a Navy commissioner, with juicy emoluments in the form of commissions on purchases, which added to his already large landed fortune.
That same year William was sent to Christ Church College at Oxford and entered as a “gentleman commoner.” His experience there was brief. He was shocked by the “Hellish Darkness and Debauchery” of the place, which was happily pro-Royalist. The persecution of the Puritan sects had already begun. His friend Thomas Loe was in jail in Oxford for teaching the Quaker faith; but John Owen, a famous Puritan preacher, dismissed as dean of Christ Church when the Restoration came, was exhorting nonconforming students, Penn among them, in the Puritan tradition. They refused to wear surplices and would not go to chapel. Fui this beginning of nonconformity at (he age of seventeen, Pcnn was finally expelled.
Samuel Pepys professed to he a friend of the Admiral, and though he could write in his diary: “Had Sir \V. Pen, who I lia te with all my heart … and his son, William … to dinner,” the two were boon companions. Pepys found Penn “sociable, able, cunning” and full “uf merry discourse,” fond of gaudy dress and lewd plays. Sir William taught Pepys to take good drafts of sack in the morning to cure headaches caused by too much drinking the night before. \Ve must take Pepys with a generous pinch of salt, but there is enough in this brief description to indicate the gull between the father, with his genial sensuality, and the son, disgusted at the dissipation of Oxford. Apparently about this time there arose a severe misunderstanding between the two. William said that his father had administered him “hitter usage,” whipping, beating, ami turning him out of doors. The Admiral found a letter of Dr. Owen s to his son. Outraged hut pu/xled, he took it to Pepys, who thought that the Puritan preacher had “perverted” the boy, and now perceived what had put Sir William “so long off the hookes.”
The father relented. He loved his son, but could not understand the lad’s devotion to the Quakers, with their plain clothes and twaddle about the inner light. The Admiral was no mystic and knew he could do very much for his son if the boy would only let him. Forgiving him then, and changing his tactics, he sent William oil to France with some persons of quality, among them Robert Spencer, later the Earl of Sunder land, who became William’s lifelong friend. It was the summer of 1662; Penn was eighteen.
Penn wrote later that a man attacked him for not returning a salute and that he had disarmed his attacker but had not killed him. Instead of boasting, Penn philosophized, a bit solemnly, as was characteristic of his youth: “I ask any man of understanding or conscience if the whole ceremony were worth the life of a man, considering the dignity of the nature, and the importance of the life of man, both with respect to God, his Creator, himself, and the benefit of civil society?”
At the Académie Protestante de Saumur, Penn became a friend of the famous theologian and metaphysician Moïse Amyraut, the president of the college; lodged at his house; and imbibed his unflinching philosophy of toleration and religious liberty, learning in his classes to reject predestination and glory in personal liberty and to practice charity as well as piety.
Back in London in 1664 young Penn had become, according to Mrs. Pepys, “a most modish person, grown … a fine gentleman,” with his athletic build and candid eyes. He studied law for a short time at Lincoln’s Inn, and his curriculum included readings of Dryden and of Beaumont and Fletcher.
For a second time war was declared against Holland, and William joined his father for a few weeks on the Royal Charles . The Admiral, who had been made Great Captain Commander, sent his son as a personal messenger to the King, hoping that this would be the beginning of a brilliant career based on royal favor. From Harwich the boy wrote his father, whom he cherished: “I … firmly believe that if God has called you out to battle, He will cover your head in that smoky day … Your concerns are most dear to me. It’s hard, meantime, to lose both a father and a friend.” He had not yet made the choice between the kind of future his father wished for him and the way of life his instincts were reaching for, the way of the Quakers. He was moved by their persecutions and tortures—they would not meet in secret—and he saw dissenters in stocks, pelted and jeered at by the crowds.
The Great Plague had struck London. Lincoln’s Inn, where Penn was again reading law, was deserted. Out of a population of half a million, nearly seventy thousand people died. Along the city’s half-empty streets walked men to collect the corpses, crying, “Bring out your dead, bring out your dead!” Dr. Amyraut had said that man’s responsibility to his brother was the ultimate morality, and Quakers worked to save the sick and helped carry out those who had died. Suffering increases nonconformity, and as unrest grew in the year of the Great Plague, the authorities took steps to suppress it. As usual, these had the opposite effect. The Quaker Act three years before had made it unlawful for five or more Quakers to assemble “under pretense of worship.” The same year the Act of Uniformity required clergymen to follow exactly the established Prayer Book. And now the Five Mile Act forbade any nonconformist preacher to come within five miles of a corporate town. This suppression caused Catholics, Quakers, and Independents to protest by active disobedience.
Sir William meanwhile was triumphant over the Dutch at the battle of Lowestoft, and in September, 1665, brought home a host of prizes. It was his last battle, and his health began to fail. He sent his son to Ireland to settle the estates which the King had given him. Serving under the Earl of Arran, young Penn helped restore order, and was praised for his works. In Cork he went to hear Thomas Loe speak at a Quaker meeting, was singularly affected, and realized then that his decision had been made: “It was at this time that the Lord visited me with a certain sound and testimony of His eternal word.” He knew himself to be a “seeker,” and began regularly to go to meetings of the Friends. But he still loved a good fight.
At one of the meetings a soldier came in to break up the group. Penn took him by the neck and started to throw him downstairs, but more soldiers came and arrested the Quakers. When the mayor saw Penn among them, he ordered him released, but Penn insisted he be treated like the others. He always practiced what he preached. Then he acted as lawyer for his fellow prisoners. On what charge had they been arrested, he asked? By way of answer they were all sent to jail. Penn protested to the Earl of Orrery and was released. His father, who had evidently heard of William’s association with the Quakers, wrote him to come to see him in England without delay—“unless for necessary rest or refreshment” on the road. William returned with a fellow Quaker, Josiah Coale, who had been persecuted “and dragged bareheaded under the spouts in time of rain,” and took him to visit his father, a gesture hardly calculated to effect a reconciliation. After Coale withdrew, his father burst out—did he have to use thee and thou ? William must use you in speaking to older people or persons of high rank. But William, fortified by his brief taste of martyrdom, refused. Quakers, he said, recognized no rank. His father suggested that he uncover before the King, the Duke of York, and his father; but William, though he loved his father, would not. Exasperated, Sir William ordered his son from the house, saying he would dispose of his estates to those that pleased him better.
After this it was natural that William should throw himself without reserve into the Quaker cause, living with them, going to their meetings, protesting the increasing arrests, and writing religious tracts. He had not yet found his way of writing. Truth Exalted (1668), his first tract, was verbose and filled with the current exhortations. Another shaft, groaning under the title of The Guide Mistaken and Temporizing Rebuked , shortly followed. For writing The Sandy Foundation Shaken , in which he attacked the Trinity, Penn was arrested by the Privy Council on December 12, 1668, charged with failure to obtain a publishing license from the Bishop of London, and, as mentioned above, committed to the Tower for safe custody. John Evelyn was shocked and noted that “one of Sir William Pen’s sons had published a blasphemous book against the Deity of our blessed Lord.” But Pepys, who got his wife to read him Penn’s book, found it “so well writ as, I think, it is too good for him ever to have writ it,” and “a serious sort of book, and not fit for every body to read.”
The warrant was issued by the Privy Council to Sir John Robinson, the Lord Lieutenant of the Tower, who would be Penn’s prosecutor in the notorious trial two years later. The Bishop of London sent word to Penn that he could recant in Covent Garden at an appropriate time before the “Fair” of all the city or else be kept in prison for the rest of his life. Penn would not budge a jot; he said he owed his conscience to no mortal man; he had no need to fear; he valued not such threats. The King sent his chaplain, the Bishop of Worcester, to see him; the prospective life prisoner told Worcester that the Tower was the worst argument in the world to convince him. He also explained to the Bishop that he had not meant to deny the divinity of Christ, and agreed to write another pamphlet, clarifying his views. Innocency With Her Open Face, Presented by Way of Apology for the Book Entitled, The Sandy Foundation Shaken , was the result. In it Penn expounded his belief in Jesus Christ, despite his attack on the Trinity.
What could one do with a man like that? If you clapped him in the Tower he had time for his scandalous (and highly popular) attacks on the thurch, which were smuggled out of prison and sold everywhere—yet there was no doubt that he was a devout believer. If you let him out, at least he was more occupied with meetings and preachments, which were easier (perhaps) to handle. Besides, his father was a friend of the King, although the Admiral had recently been impeached and tried for embezzling prize goods (he was not convicted); and the King still owed the Admiral some sixteen thousand pounds.
Whatever the reason, William Penn was discharged from the Tower on July 28, 1669.
Three weeks after his release his father, still hoping he could get the young man away from this crusading which got one nowhere, sent him to Ireland to transact some business affairs; perhaps the trip would divert his mind from such unbecoming missionary zeal. But even while attending to his father’s business in such improbable places as Imokilly and Shanagarry, Penn spent a good part of his year in Ireland engaged in strenuous efforts to relieve the persecution of Irish Quakers. Having achieved much success in both ventures, he returned to London in August, 1670. The famous “tryal” was but a few days off.
During that year the persecution of both Quakers and Catholics was renewed. Laws were amended to provide more speedy remedies against these “dangerous practices of seditious sectaries,” and particularly the assemblies. In order to test the law, George Fox, the founder of the Quakers and a dedicated expert in rousing popular emotion, went to the Friends Meeting House in Gracechurch Street, where he expected the storm was most likely to begin. A large crowd had gathered to see what would happen to the Quakers. A file of musketeers appeared. Fox and two others were dragged away, and someone shouted: “Have a care of him, he is a princely man!” Public opinion was turning against the excesses of the government. Moved by Fox’s eloquence, the mayor, Sir Samuel Starling, the same official who would soon try to convict Penn under like circumstances, dismissed the charge. Later George Whitehead returned to the same spot, where some Friends were listening to a Catholic priest. After the sermon Whitehead preached peace and love, was committed to prison, and fined twenty pounds. The meeting place of the Quakers was boarded up and many of them sent to jail. Like Mahatma Gandhi, like Martin Luther King, like all men who will not fight but also will not yield, these quiet Quakers were a dangerous lot, particularly when they had leaders like Fox and Penn.
Penn’s next opportunity to be tested and proven worthy of his God came on August 14. He was preaching outdoors in Gracechurch Street before the closed meetinghouse, with Friend William Mead acting as a kind of assistant. A crowd of a few hundred people had assembled, expecting trouble, but there had been no violence, certainly none until the sheriff and soldiers arrived. The speaker was arrested under a writ signed by the Lord Mayor, directing the sheriff to receive under his custody the body of William Penn, taken for preaching seditiously and causing a tumult of the people. Instead of being brought to the foul depths of Newgate, Penn, being a gentleman, was lodged at the Black Dog at Newgate Market, where one could buy comfort. The next day he wrote his father that he had told the Mayor he could bear harsh expressions about himself but not about his father; the Mayor had said that the Admiral had starved his seamen. “Be not displeased or grieved,” the son continued. “What if this be designed of the Lord for an exercise of our patience?” Reading this, his father may have reflected how much and how often his own patience had been exercised by his son. “I am very well,” the letter ended, “and have no trouble upon my spirits, besides my absence from thee.” His heart seemed always to be light under adversity.
Two weeks later, on September i, 1670, the trial against William Penn, gentleman, and William Mead, linen draper, began. The indictment was read. It charged the defendants and other unknown persons with assembling and congregating together to the “disturbance of the peace of the said Lord the King”; and recited that the defendant Penn by abetment with Mead did preach and speak, by reason whereof there followed “a great Concourse and Tumult of People,” which remained and continued a long time in contempt of the King and 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 …”
“What say you, William Penn and William Mead, are you guilty or … not guilty?”
Penn demanded a copy of the indictment—how could he remember it verbatim?
The Recorder, presiding, answered that he must first plead.
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.
PENN : If you deny me oyer [to be heard] 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 views.
This was too much, and the Recorder, at the end of his rope, turned to the Mayor, crying: “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 anything tonight.”
The Mayor exclaimed, “Take him away, take him away, turn him into the bail-dock.” (The bail-dock was a small room partitioned off in the corner of the courtroom.) Then Penn let himself go in grandiloquent speech to the jury: Was this justice? Must he be taken away because he pleaded the fundamental law of England? He left it to the conscience of the jury (his sole judge) that if these fundamental laws, which relate to liberty and property, be not maintained, “our liberties are to be openly invaded, our wives ravished, our children slaved, our families ruined, our estates led away in triumph by every sturdy beggar and malicious informer as their trophies … The Lord of Heaven and Earth will be judge between us in this matter.” The word “informer” was a red rag to the crowd, who may have hissed when they heard it.
Penn was dragged to the bail-dock and Mead tried his hand at badgering their lordships, speaking directly to the jury: “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 falsehoods.” He was accused of meeting illegally with force and arms. “Time was,” he continued, “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 … 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—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 poles …”
At this point the Recorder interrupted Mead, and said, pulling off his hat (a gesture he must have conceived to be biting sarcasm): “I thank you, Sir, that you will tell me what the law is.”
To which Mead answered, disdainfully: “Thou may’est put on thy hat. I have never a fee for thee now.”
Alderman Brown remarked that Mead talked at random, sometimes as an Independent, now as a Quaker, next as a Papist.
Mead answered impertinently in Latin, to the effect that the Alderman did not know what he was talking about.
THE MAYOR (losing his temper): You deserve to have your tongue cut out.
THE RECORDER : If you discourse in this manner, I shall take occasion against you.
MEAD : I am an Englishman, and you might be ashamed of this dealing.
RECORDER : I look upon you to be an enemy of the laws of England, which ought to be observed and kept, nor are you worthy of such privileges as others have.
MEAD : The Lord judge between me and thee in this matter.
That was again too much for the Recorder; and Mead also was placed in the bail-dock. In the absence of both defendants the Recorder charged the jury. Penn shouted his objection from the bail-dock “in a very raised voice,” appealing to the jury, “who are my judges, and this great assembly.” Were “the proceedings of the Court not most arbitrary, and void of all law in offering to give the jury their charge in the absence of the prisoners?” Again, citing chapter and verse from Coke, and from Magna Charta, he cried that he was thoroughly prepared to argue his own case. Whereupon the Recorder “being thus unexpectedly lashed for his extrajudicial procedure,” said with a smug smile (according to the observer), “Why ye are present, ye do hear, do you not?”
“No thanks to the Court,” Penn shouted; and continued: “You of the Jury take notice that I have not been heard.” He had still at least ten or twelve material points to offer, he bellowed; and Mead added his objections to these “barbarous and unjust proceedings.” The Recorder ordered them taken to the “hole,” a sort of detention place in the Old Bailey, suggesting that it would not be to the honor of the court to hear them talk all night, “as they would.”
The observer tells us that the jurors were commanded to agree upon their verdict, while the prisoners remained in the “stinking hole.” After an hour and a half eight jurors came down, agreed on a verdict, and the court sent an officer to bring down the other four, who would not agree. They were Edward Bushell, John Hammond, Charles Milson, and John Baily. Edward Bushell was known to be their leader, and “the Bench [says the observer] used many unworthy threats on the four that dissented.” The Recorder told Bushell that he was the cause of this “disturbance”; and added, “I shall set a mark [a fine] upon you, Sir.” The prosecutor, Sir John Robinson, announced that he had known Bushell for fourteen years, and that he had thrust himself upon the jury: “I tell you, you deserve to be indicted more than any man that hath been brought to the Bar this day.”
Bushell answered that he would willingly have avoided jury service, but had not been able to. Alderman Bludworth retorted that when he saw Mr. Bushell he knew that he would never yield: “Mr. Bushell, we know what you are.” And the Mayor added: “Sirrah, you are an impudent fellow. I will put a mark upon you.” According to the observer, the court used much menacing language, and behaved themselves imperiously toward the jury—all this because the four had refused to find Penn and Mead guilty. After this “barbarous language,” the court sent the jurors out to reconsider the verdict.
After a considerable time the jury came back, stubborn as ever.
CLERK : Are you agreed in your verdict?
JURY : Yes.
CLERK : Who shall speak for you?
JURY : Our foreman.
CLERK : Look upon the prisoners at the Bar: Is William Penn Guilty of the matter whereof he stands indicted, in manner and form, or Not Guilty?
THE FOREMAN [Thomas Veer]: Guilty of speaking in Gracechurch Street.
THE COURT: Is that all ?
THE FOREMAN : That is all I had in commission.
THE RECORDER : 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 (seeing the trap): My Lord, this is all I had in commission.
At this point, according to the observer, some of the jury seemed to “buckle” under the questions of the court, but the others would allow no such words as “unlawful assembly”; and the Recorder, the Mayor, the prosecutor, and Alderman Bludworth vilified them “with most opprobrious language.” Finally the Mayor told them they had given no verdict, and that they should go and consider it again, so that an end might be made of this “troublesome business.”
The jury had won the first two rounds, and Bushell must have harangued them during the half hour they were out. Their third verdict, signed by all twelve, was as queer, and as little satisfactory to the court, as the first. They found that William Penn was guilty of speaking or preaching to an assembly met together in Gracechurch Street on the fourteenth of August last, 1670. Obviously this was no “proper” verdict.
“This,” says the observer, “the Mayor and Recorder resented at so high a rate, that they exceeded the bounds of all reason and civility.” The Mayor asked them if they would be “led by such a silly fellow as Bushell.” Then, addressing himself to the foreman: “I thought you had understood your place better”—meaning his duty to obey the court, and convict.
The court, the prisoners, the jury, and particularly _ the people knew what was at stake. The government was determined to stop forbidden religious assemblies, to break the spreading Quaker movement, and to use an instrument of the people, the jury, for such purposes. The Recorder said as much, frankly: “Gentlemen, you shall not be dismist till we have a Verdict that the Court will accept: and you shall be locked up without Meat, Drink, Fire, or 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, out of the bail-dock and back in court, objected: “The arbitrary resolves of the Bench may not be made the measure of my Jury’s Verdict.” The Recorder, again losing his temper, sputtered: “Stop that prating fellow’s mouth, or put him out of the Courtl”
As the court broke up, Penn continued to argue. The Quakers had made no tumult, as the Mayor claimed. Two soldiers with force and arms had closed the Friends’ lawful meeting place. Now a verdict had been given, and Penn demanded, “I require the Clerk of the Court 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.”
As he was dragged out, Penn again appealed to the jury: “You are Englishmen, mind your privilege, give not away Your Rightl” And Veer shouted back: “Nor will we ever do it.” The jurors were sent out to spend the night without meat, drink, fire, or any other accommodation; and “they had not even so much as a chamber pot, tho’ desired,” as the observer sympathetically notes. The court adjourned to the next day, the fourth of the month at seven in the morning, at which time the jury, as before, reported their finding— guilty of speaking in Gracechurch Street . Once more there were passages between jury and Mayor.
The jury, having received a fresh charge from the bench “to extort an unjust Verdict” (according to the observer), went up again, and for the third time the same colloquy took place on their return. Again the Recorder threatened Bushell: “You are a factious fellow, I will set a mark upon you; and whilst I have anything to do in the City, I will have an eye upon you”; and the Mayor, exasperated, lashed the others: “Have you no more wit than to be led by such a pitiful fellow? I will cut his nosel”
Here was another opening for Penn to pour out his angry eloquence. It was intolerable, he protested, that his jury should be thus menaced. Were these men not his judges under the Great Charter of England? What hope was there of ever having proper justice done when verdicts were rejected and juries were threatened with fines, starvation, and ruin to make them reach decisions contrary to their consciences?
In answer the Mayor, obviously hot and frightened as the faces of the crowd pressed against him, his selfcontrol gone, could only cry out: “Stop his mouth, jailor, bring fetters and stake him to the groundl” The Recorder equally betrayed himself: “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 Englandl”
This suggestion of the use of torture was no idle threat. Although torture was unknown in common law, it had been resorted to in England for several centuries as a means of obtaining evidence and for punishment. Torture could still be ordered by the Crown, the Privy Council, or by the Star Chamber, which was not bound by common law. Peine forte et dure might be used when the prisoner would not plead. He was “to be stretched upon his back, to have hot iron laid upon him as much as he could bear, and more, and so to continue, fed upon bad bread and stagnant water through alternate days until he pleaded or died.” An instance of peine occurred as late as 1726, and was said to be common practice at the Old Bailey up to the eighteenth century.
The substance of this practice was doubtless known to Penn’s jury. Half starved but wholly obstinate, they had not yet been broken. Being required to meet again to find another verdict, the observer says, they steadily refused. The Recorder, in great passion, was running off the bench, saying he would sit no longer to hear these things, when the Mayor made him stay, and told the jury to draw up another verdict that they might “bring it in special.” The jury refused—they had set their hands to the verdict, they ought not to be returned to the hole. But the sheriffs were ordered to take the jury up again and sworn to keep them without any accommodation till they brought in their verdict; and the Recorder again threatened them: they should starve until a proper verdict was brought in; “I will have you carted about the city as in Edward the Third’s time.”
They returned once more from Newgate at seven the next morning, weak from such treatment but surely heartened by the angry murmuring of the spectators, who once more had to be silenced by the crier upon pain of imprisonment. On this fourth and final return the jury did bring in a proper verdict: the two prisoners were simply not guilty . The court ordered the jury to be polled, and each man answered “Not guilty,” to the great and doubtless noisy satisfaction of the onlookers. Again the Recorder yielded to the stupidity of his instincts, saying to the jury that he was sorry they had followed their own judgments and opinions rather than the good and wholesome advice which was given them ; and for this contempt the court fined them forty marks a man, and ordered them imprisoned till they paid.
Penn, sensing the drama of the moment, stepped in front of the bench. “I demand my Liberty,” he said, “being freed by my Jury.” The Mayor told him he must first pay his fine for contempt of court in not removing his hat during the trial.
“Take him away, take him away, take him out of the court,” shouted the Recorder.
“I can never urge the fundamental laws of England,” Penn answered, “but you cry ‘take him away, take him away.’ But it is no wonder, since the Spanish Inquisition hath so great place in the Recorder’s heart. God Almighty, who is Just, will judge you for these things.”
Eight of the jury, those who originally would have gone along with the Crown, paid their fines; but the four who had dissented, “phenatique jurymen” as they were dubbed, led by the “pertinaceous” Bushell, brought a writ of habeas corpus in the Court of Common Pleas. Twelve judges sat (showing that the government considered the case of great importance), and agreed without dissent that the prisoners should be discharged, since “there was not cause of fine or imprisonment.”
The opinion was delivered by Sir John Vaughan, Lord Chief Justice. He carefully examined the functions of judges and of juries. A court cannot tell whether the evidence is full and manifest, or doubtful, lame and dark, he said. However manifest the evidence was, if it were not manifest to the jury and they believed it not, it was not a finable fault, not deserving punishment. Why should a juror be imprisoned for abiding by his own oath and integrity? To say that a jury acquitted contrary to the instructions of the court in matter of law is not intelligible. “We must take off this vail and colour of words …” What use would a jury be otherwise? “The Judge’s direction should be hypothetical and not positive … If you find the fact thus—then you are to find for the Plaintiff; but if you find the fact thus, then it is for the Defendant.”
“If it be demanded,” the Chief Justice continued, “what is the Fact? the Judge cannot answer it …” Juries like judges may differ as to the reasons for their result.
The learned justice cited a case where a juryman disagreed with his fellows for two days, and, being asked by the judges if he would agree, said he would die in prison first; whereupon he was committed and the verdict of the eleven was taken. But “upon better advice,” the verdict was quashed, and the dissenting juror discharged without fine. The juror who disagreed in judgment only was not to be fined. To send such a man to prison seemed unworthy of a court. Accordingly, the prisoners were discharged.
Among the several pamphlets about the trial, one, very brief, published in 1719, purported to be written by Penn and Mead. It was now established, the pamphlet pointed out, that “Judges, how great soever they may be, have no right to fine, imprison or punish a jury for not finding a verdict according to the direction of the Court.” “And this, I hope,” the writer concluded, “is sufficient to prove that jurymen may see with their own eyes, hear with their own ears, and make use of their own consciences and understandings in judging the lives, liberties or estates of their fellow subjects—a succinct yet eloquent summary of Vaughan’s opinion.
The anonymously written reply, reflecting the point of view of the Crown, should be noticed. The Answer to the Seditious and Scandalous Pamphlet, Entitled the Tryal of William Penn and William Mead , by A Friend of Justice, written in the biassed language of a sycophant of the government, though addressed to “the impartial and ingenious reader,” supported the prosecution. Penn, the anonymous author said, had blasphemed the Holy Trinity, and in his account of the trial had vilified and contemned the King’s court, and reviled all methods of law and forms of indictments, calling them “detestable juggles.” “Now, gentlemen of the Long Robe,” the author warned the members of the legal profession, “look to yourselves and your Westminster Hall … Farewell then to your great acquisitions, your Yearbook will then be out of date. These are the Beasts of Ephesus that the late Lord Mayor, Recorder, and Bench of Justices have been contending withall … Justices are but cyphers if they cannot correct the corruption or misdemeanor of jurymen.” That “Light” which the Quakers say is within them, is “the Spirit of the Devil, the Father of Lies.”
Penn and Mead, like the four jurymen, had been sent to Newgate for nonpayment of their fines. Immediately Penn wrote his father, who was near death, that he and Mead had been declared not guilty, but that the Mayor and Recorder “might add to their malice, they fined us … for not pulling off our hats and kept us prisoners for the money, An injurious trifle which will blow over, or we shall bring it to the Common Pleas, because it was against law, and not by a jury sessed.” He wanted his father not to worry, but, knowing the elder Penn would want to pay the fine, he could not help adding (in another letter): “I intreat thee not to purchase my liberty … I would rather perish than release myself by so indirect a course as to satiate their revengeful, avaricious appetites. The advantage of such freedom would fall very short of the trouble of accepting it.” He ended, touchingly: “Let not this wicked world disturb thy mind, and whatever shall come to pass I hope in all conditions to prove thy obedient son.” But Sir William had already written to the King, who, along with the Duke of York, promised to continue their favor to young Penn. The Admiral paid the prisoners’ fines, and they were released. At the end of his life Penn’s father, knowing he was looking into the face of death, forgave his son and at last understood him. He was deeply moved by William’s letter. “Son William,” he wrote, “if you and your friends keep to your plain way of preaching, and keep to your plain way of living, you will make an end of the priests to the end of the world. … Bury me by my mother. Live all in love.” Father and son at last had been reconciled.
The son was out in time to be present at his father’s death on September 16, 1670. Sir William made him his residuary legatee and sole executor, and bequeathed to him the gold chain and medal that had been bestowed upon him by Cromwell.
William Penn left many memorials behind him: a reputation for fair dealing with all kinds and conditions of men, a clear call to religious liberty, and the “Holy Experiment” in America that became the great proprietorship, colony, and commonwealth of Pennsylvania. But not the least of his accomplishments was recorded in London, in a tablet erected in the Sessions House to the memory of two brave defendants, Penn and Mead, and two stout jurymen, Veer, the foreman, and Bushell. A hundred and fifty years after the trial, the Marquis de Lafayette gave a toast in Philadelphia to the memories of Penn and Franklin—“the one never greater than when arraigned before an English jury, or the other than before a British Parliament.”
And so we leave William Penn, “the wild colt,” who had just begun his long career of protest. A few months after the trial he would again be arrested for preaching and brought by the soldiers before a huddle of magistrates, this time without jury. Again he would be sent to the Tower. But now the soldiers were friendly and polite. “Send thy lackey,” Penn said to the lieutenant, “I know the way to Newgate.” There, as usual refusing to pay for special quarters, he wrote several tracts, among them The Great Case of Liberty of Conscience , discussing the recent trial; protested to Parliament with the other Quaker prisoners about the stiffening of the Conventicle Act; and dispatched a letter to the sheriffs of London giving them the details of their “common stinking jail.”
He was out again in six months.