Truth Rescued FROM IMPOSTURE. OR A Brief REPLY to a meer Rapsodie of Lies, Folly, and Slander; But a pretended Answer to the Tryal of W. Penn, and W. Mead &c. writ and sub­scrib'd S.S.

By a profest Enemy to Oppression. W.P.

A Fools Lips enter into Contention, and his Mouth calleth for Strokes,

Prov. 18.6.

A Whip for the Horse, a Bridle for the Ass, and a Rod for the Fools Back,

Prov. 26.3.

Printed in the Year, 1670.

To the READER.

I Take him to be an unhapy man, that knows not an Enemy upon Earth; and therefore judge my self not a little happy to be so ill reputed by S.S. that of all men, I have reason to believe one of the most infamous. Yet, that I may be just to him, as well as to my self, I do beseech the Reader, first to peruse his Fardle of Impostures, and Abuse, before thou read'st me; lest thou shouldst think I have wrong'd him in citation: So scur­rilous, so false, and withal so ridiculous is, he in his whole conceited Enterprize, that but a little charity would make one think, that no man could be so great an Enemy to Truth, and to Himself.

Surely, his Fondness of being in Print, wholly blinded his discretion, or else methinks he would have stopt't, to give so great an evidence of his Folly.

One would have thought it Impudence enough, to act such Tyranny without an Appology to defend it. But as that's an aggravation of his Gilt; so let the man remember, that Litera scripta manet.

I know it well become his Front, and every part thereof bears exactly his resemblance.

'Tis pitty but all the Peoples Enemies should give as wise grounds of their abuse, of them, and their Laws, as this Man has done.

I am concern'd in a double sence: First, in defence of my Conscience, and therein, the Liberties of my Country. And next, of the Reputation of my deceased Father, by him [Page 4] injur'd, beyond the instance of a Presedent, or allowance of an Excuse.

Being then, thus boysterously attaqu'd in my Religious, Civil and Natural Capacity, let not any wonder, that I imply the force of all to my just defence; And if I have so much credit with the Reader, believe me, I will (without the least Scruple) give him his compleat weight and measure: for I desire not to hold my Life or Liberty, on better tearms, then whilst I am bold to justifie the Truth at any Cost, against the false and peevish Essays of her Adversaries:

Truth Rescued from Imposture, &c.

Part I.

I Have to do with one, who dares to profess himself a Patriot and that of so great importance to his Country,Note: Page 1. as on his happy Cry of (Miles noli regem ferire) the Safety of King and Kingdom have their sole dependance.

But, as I am perswaded, that piece of Arrogancy was unexpected by most, and his inability too notorious, to admit any the least jealousie of such an Enterprize; so has he given the greatest Stroke imaginable to himself, and those he would seem to vin­dicate, in offering at the poor Quakers, for whom his weakness makes sufficient Appollogy; and amongst them, I am not the least, that ought to account my self indebted.

The second discovery of himself, is not less Incharitable, then the first was Proud and Impudent.

He does not only take occasion to fall most foolishly upon our Tryal, but as unwarrantably believes 'twas I that writ it;Note: Page 1. but should I grant him so much Faith (for I believe him to have little) I shall appeal to all impartial men, If a bare Conjecture (and more he proves not) be ground sufficient for him to vent so many rank Reflections, and that not only upon my self, but my deceased Father: It either argues he had better Intellegence, in the following Pages, or that his desire I should be Author of it, had changed his Faith into a fancied Certainty, which gives sufficient testimony of his Prejudice.

And as if he doubted there might have been another William [Page 6] Penn, that might be an whole Quaker, he is pleased to distinguish me from him, with this diminitive Expression, of William Penn the half Quaker, thereby intimating how much worse he supposes half Quakers to be, then whole Ones; for none can think he said so out of Kindness to me, when his Discourse not only singles me out for all Abuse; but as not contented with that, disturbs my Fathers Grave with his forg'd Aspersions, and then places them to my Accompt.

But whilst I think not my self a little injured by his scurrilous Epethite (believing he meant, I was not a sincere, but interested and tur­bulent One) I heartily rejoyce, that out of his own Mouth he has ju­stified my Friends, by preferring an intire Quaker, before all half, or mungril Ones; yet if an half one be so fatal, and heavy on the Shoulders of Oppressors, that they do scarce dare to own their own Appologies, how dreadful must an whole One be⁏ He says in this Ex­pression, so much for us, that he scarcely needs more against himself.

But because he believes I writ it, therefore he can give it no other Name (to use his own words) but the Second Part to his Blasphemous Treatise, Note: Page 1. called the Sandy Foundation sha­ken: O egregious Nonsence! This ridiculous Non sequitur, ei­ther shews him, to have been a man of a very stegmatick head, or else that he has ill bestowed his time, who can write no better sence yet; for, that these two Subjects are in the nature of them very different, is manifest▪ But perhaps he thinks it no small piece of Blasphemy, to tell the World of the late irregular Proceedings at the Old-Baily: Nor does he less wound his own Cause by ac­knowledging the Book entituled, The Peoples Ancient and Just Liberties Asserted, (which designs to detect, on what Foundation the Mayor, Recorder, &c. did proceed) to be the second part to the Sandy One, manifestly implying theirs to be such.

His sense of my Faith, or rather Disbelief of the Trinity is a wretched Mistake, not to say a voluntary one; for I never quar­relled the word Trinity, it being borrowed of the Latine word Trinus, in English Three, but alwayes did, and do believe the same.

But why should I insist upon a Point so abstruse; and that, to a man, so unintelligent in more minute matters, as that he hath not [Page 7] yet learnt a distinction betwixt Discourses of Civil Liberty, and Divine Faith, but ignorantly makes the one, to be a ne­cessary Consequence, from the (Supposed) Mistake in the other.

I might here over-look his abusive Reflections upon me, as Author of the Trial, &c. (which he urges with no small Zeal) by unconcerning my self in the matter: But I confess to owe so much of Real Kindness to the Author, and many parts of the Dis­course, that I shall gladly imbrace the occasion of making his Defence.

The Man resolving I must be the Author, sets me up as such, and then fights me, or rather pelts Dirt at me: He says that, Penn does not blush to Vilifie the Kings Court,Page 1.and fals­ly Reproach the Kings Justices, and revile all Methods of Law, calling Indictments detestable Juggles; and his, a Ro­mance Indictment; and W. Mead, his, a Bundle of Stuff:Page 2.

Penn designing, in a popular way, to subject the Laws, ma­king the Jury Judges both of Law and Fact.

If I had blusht, it must either have been from mine own Guilt, or by way of reflection from the Bench; but as I was wholy in­nocent of that Crime, which could have made me conscious; so was there not Modesty enough, amongst some of the Bench to blush at their Irregularities.

I detest that Aspersion, of vilifying Law, or reproaching the Kings Justices; since the greatest Crime some observed against me, whilst at the Bar, was my frequent Demands of Right, by those very Fun­damental Laws, I am charged to have contemned.

These are but meer Phrases of Abuse, ready at every mans hand, for his interest,

Indictments I Esteem not Juggles: nor do I believe the Author intended so, but that way of crouding most unnecessary and un­true Allegations, under the pretence of Form of Law, con­trary to all Reason, is no less: This is explained by him, and his own sence fully vindicated.

He therefore understood what he said, when he compared the falsity of our Indictment, to that of a Romance, which however methodical, yet is but meer Fancy still. For those things being absent that render an Indictment true, it will follow that such an [Page 8] Indictment, is altogether incongruous [...]d inapplicable. It is an hard Case that men should so Nickname things, as to call an honest Confidence, Impudence; and my asserting of the Suprema­cy of Fundamental Laws, against their new Inchr [...]achments, a sub­verting of them.

I Rejoyce to think, that many were there present, whose re­lation of that Transaction, has done me the justice of a vindica­tion, and given our Tryal the Credit; which it is utterly im­possible for the endeavours of S.S. and his malicious Cabal, ever to diminish or traduce.

He makes it a Capital Crime to assert the Jury, Judges of Law and Fact, but poorly shifts off those Arguments aptly used by the Author of the Tryal, in def [...]nce of his position: for far­ther satisfaction I referr the Reader to the Fourth Part of this Discourse.

He says I was commanded to the Bale-Dock for Turbulency and Impertinency: I confess, if I had been as Guilty as I was inno­cent, of being so offensive, they had been very incompetent Jud­ges, whose own passion rendred them so much what they say of me, that many Spectators questioned, If the [...] were themselves.

They that read the Tryal may quickly inform themselves of my kind of Impertenency, and with the same trouble, of their Billingsgate Rhetorick, in Phrases so scurrilous, that never did Men subject themselves, to a more deserved Censure of want of common Civility, then at our Tryal.

But the man breaks forth into an extatical Caution, to those of the Long Robe, Page 2. lest we should assassinate their Persons, at least besiege and rifle their Westminster Hall: His words are these, Now Gentlemen of the Long Robe, look to your selves, and your Westminster Hall. And why? Because that Ju­ries are affirmed to be Judges of Law and Fact; as if that were an overthrow to the Law, that the most learned and honest of the Robe made an hearty Profession of, in the sence urged.

But I appeal to those of the Long Robe, (as he stiles them) whether such Arbitrary Proceedings, as over-ruling all Pleas, Verdicts, Prisoners, and Juries, at the rate of the Old-Baily, 1st, 3d, 4th, 5th of September, 1670. with their severe Rebukes and harsh Menaces, be not more apparently destructive, of the Fun­damental [Page 9] Laws, in the free course of them, and practice of Lawyers▪ then the Authors Assertion, in his Discourse of the Peoples Antient and Just Liberties, &c.

He urges this Caution to the Lawyers, with no small pretence to Reason and Rhetorick; For says he, If that these learned Refor­mers of Religion, shall likewise reform your Laws and Methods of Pro­ceedings (as doubtless they design it) farewel then to your great Acqui­sitions, &c.

But I must tell him, that as he is an incompetent Judge of Re­ligion, that practices so little of any, so I publish a plain Chal­lenge to him, and the old Man within the Curtain (the Oracle of his Law Gibberish) to produce an avow'd Instance, by any Lawy­er, of the Irregularies and Arbitrary Actions, they vainly at­tempt to defend.

And whether our well▪meant Plea, for English Priviledge, be most destructive of great Acquisitions, or their unhinging th [...] well hung Laws of England, to turn all Tryals upon the sole pin of Will and Power, let the very Lawyer judge.

I affirm, such give the justest ground of bidding farewell, to all great Acquisitions, that are so ready to welcome INQƲI­SITIONS.

[...]e ventures to urge the Great Charter, and to give an Exposi­tion, as ridiculous, as the other is fictitious; his kindness for the Law, being to kill it, in palliating his real fear, and abhorrence of all good Laws, with his pretended respect for them.

But of this I will say little, leaving it to an whole part by it self; and proceed to consider the rest of his Wild Re­flections.

His comparison of us to John of Leyden, is ignorant and ma­licious. Ignorant, because he seems to know no better our Prin­ciples, that utterly abhor to promote Religion by Blood. Ma­licious, because he slanders us, without the least desert; and seems not so much to heed the Truth, as odium of his Comparison: And but that it is a vulgar Trick, to put the Woolfs Skin upon the Sheep, and the Sheeps Skin upon th [...] Woolf, I should enlarge upon his ugly E­pithites.

Part II. S.S. his Answer to the pretended Calumnies of the TRYAL Considered.

HAving given my self a loose shake of the Calumnies of his first Section (saving that part which concerns the power of Ju­ries, to be considered by it self) I shall descend to examin his second, if possibly I may find more of Truth, Sence, and Civility.

He pret [...]nds to so much Scripture (and which is worse, ap­plies it to his own shame) as to front his second Section with the 9th and 10th Verses of the Epistle of Jude.

Ver. 9. Yet Michael, the Arch-Angel, when contending with the Devil, he disputed about the Body of Moses, durst not bring against him a railing Accusation, but said, The Lord rebuke thee.

Ver. 10. But these speak evil of those things which they know not.

Upon this Text he preaches thus. pag. 4.

These People called Quakers (if they are to be believed) will tell, they have this Angellical Spirit, the Meekness of Moses, the Patience of Job, and all other Graces; but the contrary appears, fol. 57. of W. Penns Book, vide this Passage.

But above all, Dissenters had little reason to have expected that boarish [...] sierceness from the Mayor of London, when they consider h [...]s eager prosecution of the Kings Party under Cromwels Govern­ment; as-thinking he could never give too great a Testimony of his Loy­alty, to that new▪ Instrument, which makes the old Saying true, viz. That one Renegado is worse then three Turks.

To which I answer, not as W.P. but as one they call a Quaker.

His application of the first Scripture will be this.

If Michael did not bring a railing Accusation against the De­vil—then the Author of the Tryal should not have brought one against him.

[Page 11]It is so plain what he has said of him, that we need not further blacken him.

But this latter part, he grosly mis-understands, and mis-applies; for tis deny'd, that any part of this Scripture affords one just Re­proof, of that so much abused Author.

We know how frequently the Devil himself has taken to the Scriptures for a Refuge▪ and after this mans strange constru­ction, it will be railing to tell a man his Faults: And truly, when I seriously consider, how gross and numerous his are, as by his very Book appears, methinks he was hard put to it for a Covert.

A railing Accusation, is a false, as well as wrathful one, which he proves, pag. 5. therefore a true, though sharp reproof is none.

I know it is the humor of such, who would live unrebukt, to render it more criminal to reprehend, then to commit a Fault; that they may save their heads from the knock of just censure.

But who the Railer was, we shall take leave to mention in its place: However, what has this to do with W.P.

The second Verse we are equally unconcerned in. Could he have found a Text that says, But these speak well of those things they know not; he might have more approacht the matter by excluding our science in the Law, in owning our great Good-will unto it. Of the latter, our Tryal, as by him represented, is a demon­stration; but I could wish he were no worse, then those concerned in that Scripture, which was, to speak evil of things they know not: For I am perswaded, he spoke malignantly evil of things he knew did not deserve it.

We do not only tell the World, the tendency of our Do­ctrine is to incline mankind to Meekness, and Patience, &c. but we bless the God of Heaven and Earth, many ten thousands do believe the same; and that on better Evidence, then hear-say, or bare report.

But whether S.S. or his Juncto, can with any tollerable shew of modesty condemn the Quakers, as destitute of Meekness and Patience, who have so much wanted both, as they (Instrumen­tally) [Page 12] have given the clearest evidence of the contrary, by their in­humane Persecutions, as well as we have done it, by Suffering the same, I am sure will be the Question.

He begins his Appology thus. An high Charge against Sr. Samuel Starling,Note: Page 5. then Lord Mayor, (if true) Cujus contrarium verum; and therefore a railing Accusa­tion; and that Light (which is as they say) within them (by which they are acted, and speak as they pretend) is the spirit of the Devil, the Father of Lyes.

These words both deny, and give a Charge, but with how much Truth and Reason I shall examine, and begin with the latter.

I take this Expression to be the most venomous of all his Libel, and seems to come hot from a Blaspheming Gnashing Spirit, through a vexed Consciousness of Guilt.

The Light we profess to be guided by, is so far from being the spirit of the Devil, the Father of Lyes; that its of God, the Fa­ther of Truth.

Here may be read the Text, inserted in the Period of his Title Page, For he speaks evil of Divine Dignities, who speaks against the Light; for God is Light.

And he that says he hath Fellowship with God, and walks not in the Light, he lyes, and deceives himself.

And if this scurrilous Libeller had ever known what it was to obey this holy Light, he would have forborn so impudent an Assertion: But 'tis an evident sign of a feared Conscience as well as great ignorance, to publish to the World, that Light is the spirit of the Devil, and not of God.

How many times do the Scriptures commemorate God and Christ by this Epethite? Christ was promised by that very Name, I will give him for a Light, to lighten the Gentiles. And John said of him, That he was the true Light, that enlightneth every man. And Christ gives this Testimony of himself, I am the Light of the World. Also the Apostle Paul, What ever is reproved, is made manifest by the Light, And John thus, God is Light, &c. If you walk in the Light, as Christ is Light, &c. And in the Revelations, The Lamb [Page 13] shall be thy Light, &c. And of God its said, He dwells in Light God is Light, and in him is no Darkness at all, &c. But in this man there is the very blackness of Darkness, who calls Light Dark­ness, and Darkness Light, Evil Good, and Good Evil.

Next I cannot chose but observe, how abruptly he falls from the matter of his Chapter, to blaspheme our holy Light. A high Charge, the contrary whereof is true: And that Light, which is in them, is the spirit of the Devil. Behold the Confusion and Incharity of the man; nay, a rude pulling upon his own head the Vengeance of the God of Light.

Did he, or any else, ever hear us pretend to own another Light, then in the Phrases, and from the Scriptures before mentioned? I am assured they did not: And though I deny his Imputation, yet what if I, or any Quaker on Earth, or all of them, had acted injuriously to him, or any man; must that blessed Light, we say is given of God (and more then pretend we are guided by) be villified for our Failings?

Nor is it less then wretched Blasphemy, for any to say, That because S.S. is a most horrible Imposter, therefore the Grace, or Light which God has given him, is the Spirit of the Devil.

But this proves to me his Impiety beyond all other Demonstra­tions; for nothing's more common, then where men with wil­ful obstienacy, have lived a rebellious and wicked life against Gods Light and Spirit in their Consciences, there to spurn with gnashing Teeth, and scalded Tongues, in blasphemous Expressions against God, and his Tabernable, and those that dwell in Heaven.

But besides, his very words carry such Weakness and Confu­sion with them, that I will easily from thence inferr, a Vindication of our Light and Friends.

And that Light which is (as they say) then he does not say it, which implies, that he thinks (we lye, at least are mistaken) within them (by which they are acted and speak, as they pretend) which supposes that he believes we are not really so acted, nor do we speak by it, on­ly that we make it our pretence) is the spirit of the Devil, the Father of Lyes. If I understand him, or his words, this is the genuine and true construction of them.

[Page 14] That Light, that is in them, is the spirit of the Devil the Father of Lyes; yet I wont say it; and I believe its but their pretence to say they act or speak by it.

If this been't the very sense of the words, none can be; and if this sense doth not vindicate our Light in his own Thoughts, from being Diabolical, and Ʋs from being led by such a lying spirit, let the understanding Reader judge.

In short, this I must and will say, by the knowledge of that Light, and for it, That as it gives man the true Discerning, Weight, and measure of Spiritual things, with their differences; so can no man have access to God, in any Duty or Action of his life, nor feel true Peace with him, or the cleansing benefit of the Blood of Jesus Christ (who is God over all blessed for evermore) but as he comes to be directed and guid­ed by it to keep the Commands of God, and himself unspotted from the World. But trouble and remorse of spirit ever was, and ever will be the Portion of such as rebel against it. In him was Life, and his Life the Light of men; If ye walk in the Light, as he is in the Light, ye shall have fellowship one with another, and the Blood of Jesus shall cleanse you from all Sin.

More might be said of this Particular, but I am perswaded, here is enough to satisfie the Consciences of all unbyast Rea­ders.

The former part relating to his denial of the Charge of Disloyalty and Temporizing, against him they call Sr. S. Starling; I shall so far take into my consideration, in defence of the aspersed Author of the Tryal, as to tell this Parisite Li­beller only what the World says of him, and particularly the City of London; which if not true, its both little to the purpose, and he is the more belyed; but first we will hear the Defence.

I think it necessary (says this Apologist) in his Vindication, to desire the Curteous Reader, to enquire of Sr. Ed. Deering, Dr. Whitcock, Mr. Christopher Flower, and Francis Pemberton, Esquires of the Middle-Temple; who can bear witness of his Loyalty at Cam­bridge, in the years 1643, 1644, 1645.

And in the years 46, 47, 48, 49. he apply'd himself to the study of the Laws, and could not be admitted to the Bar, because he utterly re­fused [Page 15] to subscribe the cursed Ingagement: Witness Cornelius Hooker Esquire, Nicho. Jacob Esquire, both Barristers of Greys-Inn, and his Contemporaries.

We want the Consequence. What? Was he therefore no Temporizer? Nothing less. Not that the reputation of the Per­sons named must therefore be impeacht, or lessened.

But some are ready to ask, why S.S. should think it fit to name so many Persons, in his Defence, and yet omit to insert a Certificate from any one of them: Their Testimonies are at best but in Embrio (Ʋnborn to us;) nor is it possible they should be Witnesses of all the Actions of his Life. But granting what is said, to be true: Was he accused of Temporizing when a Boy at Cambridge? Although methinks tis indiscreetly urged, that we should ask of Dr. Whitoock if he were not compelled to leave the Ʋniversity, (Loyalty being out of fashion,) who remained a Master of a Colledge there. I do not mention it to spot that Doctor; for I know none of that Coat of a more universal Temper, and worthy of being esteemed learned; but to detect this ridiculous Sribler of Inadvertency.

I must confess, the first he refers to, I have an experienced knowledge of, and to whom I esteem my self oblieg'd by many high Instances of Kindness; which not so much, as his own even­ness of Temper, would make me entertain more favourable Thoughts; but as he is cited to determine a Case, not tim'd to the charge, so is he wholly silent in the matter: And though his Name, with me, gives the most of reputation, to his whole Para­graph; yet, Quod non Lego, non Credo.

Nor is the Instance of being at Grays-Inn esteemed material to the purpose, it being of later times, to which the Reflection quarrelled with, has no relation, and therefore overlookt as frivolous to this Occasion, though some say, they talk as if there were no such matter.

But he hopes, to supply this defect, with this general and du­bious Addition.

From 1650. until his Majesties Restauration, he was a Trader in the City; and how he demeaned himself in those Crumwellian times, [Page 16] all that knew him will witness he walkt Antipodes to the genious of that Age, to the endangering of his Life and Estate. pag. 6.

Answ. That this is a general reference, is manifest, and of whom to enquire he does not tell us: Would he have us send to enquire who knew him then, in order to know what he was then; some think it might have been as cheap for S.S. to particularize one in those ten years time of Loyalty, which was to the Purpose, who Instanc'd so many before to no purpose: This leaves▪ a stronger Jealousie then before, but with none less then the Quakers, because none are less concerned in the matter.

But that he was this invincible Royalist, he gives us this In­stance.

His Majesty being by Gods Providence restored, he was esteemed for his Loyalty, a fit person to be of the Jury, upon the Kings Judges, and passed a Juror upon no less then Eighteen of those Assassinating Tray­tors.

But how unwise, if not disloyal, this expression is, some think it may concern the King, at least his Justices to consider: as if that those Persons had not been condemned by indifferent men, sway'd by the only force and sence of Law; But such, as were therefore esteemed fit to be of the Jury, because aversly principled in point of Judgment and Affection, I boldly affirm it a reflection so indiscreet & malignant that it deserves a check severer, then any Expression in the Discourse, entituled, The Peoples ancient and just Liberties Asserted; and that not more from the Kings Justi­ces, then the Person he would be thought to vindicate.

After all that he has said, the Apologist thinks it needless further to vindicate his Loyalty, since never questioned by any, but those scepti­cal Quakers, whose business is to asperse our Religion, Laws, and all men, that are not of their cursed Principles.

Therefore he makes this offer; that if W.P. can make out that the [...] late Lord Mayor, ever wronged any of the Kings Friends, either in Body, Goods, or good name one penny, that he shall restore to the Gentleman, whosoever he be, a thousand pounds, for every penny worth of wrong.

[Page 17]But as I do assure this Libeller, that some of eminent Rank, and no Quakers (as he is pleased to term them) were the first that took occasion to speak of that Persons temporizing; and therefore question'd by others; so is it an Aspertion wickedly groundless, that we defame Laws, Religion, and all men, that are not of our Prin­ciples, since we have ever been on the suffering hand; and still proclaim it as one of our fundamental Points of Doctrine, to live peaceably and inoffensively, which we have not onely done (not­withstanding all provocations) but resolve, in Gods strength, to continue the same passive People we have ever been.

Besides, I would fain know, why above others this offer should be made to William Penn; perhaps the Author of the Libel, thought him so great a Child, as to be insnar'd into such reflecti­ons, as would subject him to the Lash of his Sr Samuel, for a Defamer; but as I have learnt more prudence, so indeed more Religion.

I abhor to use Scurrility instead of Reason, and so should this Libeller, of supplying the defects of his Cause by Railing.

Were I a man as bitter, as S.S. shews himself cholerick; and but as apt to revenge, as he is to wrong, I might take this occa­sion to write the Stories of the times, concerning his Patron; But since I hear he denies it any Patronage; and that I know that these things are no wayes profitable to the Reader, but meer incentives to prejudice; I heartily forgive all, having other­wise learnt Christ; and think it as well unmanly, as it is unchristan, to place the miscariages of any man, to the account of his Cause. For though a good Principle may be profest by a bad man; yet is it im­possible that a bad man should make that good Principle bad; and therefore its clear of any just suffering by his miscarriages. Nor is there any such indigency in the Case; for the Cause defended by S.S. is in it self so weak (not to say wicked) as we need not take Sanctuary to personal miscarriages, the matter being too fruitfall of them.

His base Reflections on my Father, shall be considered by themselves, and therefore I omit to answer them, as placed by him. But shall proceed to examine the remainder of his Section.

[Page 18]He charges the Author of our Tryal of false Accusation, against Alderm. Bludworth, that he mov'd at the Sessions to have a Witness against Harrison the Fryer, and Firer, sent to Bridewell and whipt; affirming, that neither did Ald. Bludworth make any such motion, nor did it appear, that Harrison was a Fryer, or Firer. pag. 7.

But as a bare denial is a weak Apology; so that he either threat­ned, or mov'd to have an evidence against a suspected Fierer, sent to the House of Correction to be whipt, I have heard several affirm: But whether this be true or false, it concerns not the legality or illegality of the Old Baileys procedure.

As for Harrison's being a Fryer, I never believed it, nor can I think so meanly of the Contrivers, as that they should imploy so witless an Emissary (at least for an eminent Agent) But if Harrison may be exempted from that concern, it follows not that the Fryer should.

He pretends heartily to wish, that these Libelling, Lying, and Discontented People, were as free of the design of putting the whole Kingdom in a Flame, as Harison was, from the actual firing of the City. But I as heartily believe, that if as strong an Evidence, and but half the Circumstances (urged against Harrison) had been brought against Ʋs, to prove so detestable a design, as that of inflaming the Kingdom, we should have hardly found that can▪ did release, I am sure, not so kind an Apology; since S.S. sticks not to suspect Ʋs, more of the One, then he does Harrison of the other.

But whilst he hypocritically uses Michaels words to the Devil, The Lord rebuke thee, they are truliest apply'd to Himself; whose Diabollical suggestions are plain discoveries, how chearfull he could Sa­crifice us, to his malice and fury; for which the God of Heaven and Earth, will judge and recompence.

The Indiscretion of the Recorder, he rather aggravates, then defends; but it is so much his practice, through his whole Di­scourse, that the wonder would be, to find it otherwise.

He begins thus: The Accusation against the Recorder is twofold. First, That he should say, that there would be a Law made the next [Page 19] Session of Parliament, that no man should have the protection of the Law, but such as conform to the Church.

This saying of the Recorder is falsly and maliciously recited, For he said, we shall not alwayes be at this trade with you; you will find, the next Session of Parliament, there will be a Law made, that those that will not conform to the Law, shall not have the protection of the Law. pag. 8.

I hope, for the reputation of this famous City, their Recorder was not at the finding out of this malicious difference in the recital, as S.S. is pleased to tearm it. How much the two Expressions differ, or rather, how little, is obvious; since 'tis the word Church that makes it (if it makes any) I am of opinion, that the former is but a necessary explanation of the latter; for if the Law we must be conform'd to, relates to Ecclesiastical Affairs, then what's the difference, betwixt our not receiving the protection of the Law, un­less we conformed to the Church, and our not receiving the protecti­on of the Law, unless we conform to a Law relating to the Church, or a Church Law. The wretched folly, and bala stupidity of this Libeller, has wounded more the Persons he would vindicate, then what the Author of the Tryal was supposed to do, with all his opposition.

What he means by those blessed Saints, whom he says, we fol­low, that made a Law, that those that would not subscribe the wicked Engagement against King and House of Lords, should not have the benefit of the Law &c. we are to seek; and are as far from find­ing, by the help his ill-stockt Ingenie may afford us; but I per­ceive the Man can venture to prophane as well as lye, though his wit fails him more in the former, then his wickedness does in the latter. 'Tis sad, that nought but holy ground will serve such Swinish spirits to trample on.

But what if they acted irreligiously, and inhumanly too, must that be laid at their Doors, who not only were unconcerned with them, but persecuted by them? and that for writing against the imposition of that Engagement, and refusing to take it: But if it was then esteemed so great an evil by S.S. how comes it now to be trans­muted to a moral good?

[Page 20]Was it unreasonable then, and is it reasonable now? can the nature of a Persecuting Act be changed, because the Parties in point of power be?

His lex Talionis, is not lex talionis to us; for never having suf­ferred by us, there is no ground for retaliation or revenge.

But we understand the mans meaning, and still fail not to meet with frequent instances of his wishes for us. I shall conclude this Section with one of them, and the most fatal both to Religion and the Law.

The second Accusation against the Recorder is, that he should say, Till now I never understood the reason of the pollicy and pr [...]dence of the Spaniards, in suffering the Inquisition amongst them, and certain­ly it will never be well with us, till something like the Spanish Inquisiti­on be in England. pag. 9.

The Infererence the Libellers make, is, what doth this but justifie that hellish design of the Papists, to have prevented the first Refor­mation?

This is a wretched and uncharitable construction of the Recorders words. These words do no wayes justifie the Papists, if these Libellers had but the least grain of Charity, they would have construed the words, cum grano salis, as the Rule of Charity directs all words to be come strued.

And they will admit of no other construction, but this, viz. That if the Papists be so pollitick and prudent by their Inquisitian, to maintain their false Religion, surely it will be the Protestants prudence to find wayes, for the preservation of their true Religion. pag. 9.

I have been very faithfull and patient in the recital of this poor Defence, of which I can give no better Character, then that tis like the rest.

'Tis manifest, the words are granted, I now hope they will not be longer dis-believed when confirmed by the hands of two Wit­nesses, the Author of the Tryal, and this priviledged S.S.

But he says, it ought to be construed cum grano salis, with allow­ances, and in the best sense, which Counsel had been tollerable from any, but from him that has shown himself so void of any; and that which is the Master-piece of all his foolery, is, his ridi­culous [Page 21] Construction he makes of it Himself; as if that could be a good Way of preserving the Protestant Religi­on; that is an Hellish ONE in the Papists. But why an Hellish One? Because it intends to force to an Hetrodox Re­ligion, and not rather by reason of the coercive barbarous Nature of the Punishment it self. And can any think, that an Inquisition, to inforce Men to Confess to the Prote­stant FAITH, is not equally Cruel, with that of the Pa­pists.

The Protestants would be so far from having any Advan­tage upon the Papists, for the Inhumanity of his Inquisiti­on, that his own Practice would seem but The Second Edition of the Papists Cruelty. It is not either of those Names that renders it more or less lawful, but the Nature of the thing it self. And had this Libeller but ever read the ancient Protestant Apollogies, he might have better informed his peevish Mind of their Opinions.

The true Religion took ever Sanctuary to its own Inno­cency and Verity, and not to the Dumb Materials of External Force.

But this Expression would make one think, that under a Pro­testant Profession, there lodgeth a Popish Spirit; and that the same Inte­rest, which urged Spain to erect an Inquisition, in the Re­corders sence, should obliege England to employ the same Hel­lish Tyranny, to torture her poor Dissenters, (though Free-born Natives.)

But if that were his Meaning, and such Counsel should be taken, it were endless to consider the unexpressible Miseries, that would attend us: All Law would be subjected to the zealous Ana­themas of Ecclesiastical Officers; and Religion speak no other Language, then that of INQUISITION. We have hitherto boasted much in the Self-evidencing verity of the Protestant Faith, but this were to bring it justly into jealousie with all; that having [Page 22] so long decryed Coercive Power, should vehemently employ it, to its own-promotion. The Papists would not only have cause to believe the ground of primative Seperation, was single Interest, but an Example to their hand, what measure they ought to meet to the Pootestants abroad; which reduceth all Religion in a way of subserviency to the Government, and Conscience to its Conveniency: But this had been forgotten, as well as it is for­given, had not the Inadvertency of S.S. brought it the second time upon the Stage.

Part III. A Vindication of my Deceased Fa­thers Reputation, from the False and Unworthy Reflections of this Scandalous Libeller.

SInce to Disturb the Grave, and Rake into the Ashes of the Dead, was ever held detestable with Infidels; we may on easie tearms inform our selves, to what an ebb of Vertue this man has brought himself, who is so dry of all Christianity, that there remains not the least Drop of that vulgar Decency, eminently in vogue with very Heathens: For as with them such might justly be accus'd, as were not disabled from answering for themselves; so Death having dislodged the Persons of any, their Charity esteemed it a protection to their Names; from whence came that common Saying, De mortuis nil nisi bonum, Let us speak no ill thing of the Dead.

But though this be urg'd, yet that its as ill observ'd by S.S. I shall proceed to shew.

He takes occasion in the close of his defence of S. Starling▪ to fall thus heavily upon me and my Father, as if he could not do the one without the other.

But I suppose this wild rambling Colt, W. Penn, mistakes, when he chargeth these things upon the late Lord Mayor, he means his SEIR deceis'd.

[Page 24]Doubtless the Man was toucht: What course Similitudes are these? Did ever man so Brute himself in Print? But I dispise his Drayish Terms, and apply my self to scan the matter, lea­ving him to wipe himself, of that Dirt, he thought to cast on others.

I had so little reason to doubt my Fathers constancy, that in the sense debated, I know few of greater.

'Tis true, He was actually ingaged, both under the Parlia­ment and King, but not as an Actor in our late Domestick Trou­bles; his Compass alwayes steering him to eye a National Con­cern, and not Intestine Wars; and therefore not so aptly theirs, in a way of opposition, as the Nations.

His Service therefore being wholly Forrain, He may be truly said to serve his Country, rather then either of those Interests, so far as they were distinct to each other; and for this Evil, I hope he may be held excusable.

But the Rayler proceeds [Who from a Captain was made Oliver's High Admiral, for his great Service, in promoting▪ that new Instru­ment.] Which is a Lye so impudent, as both his Commission, and Men of note can prove, That First, he made no such ex­tempory leap, as is suggested to have been his Recompence, for promoting Crumwells Interest; but past through many known Offices, as of Rere-Admiral, Vice-Admiral, and Admiral of Ireland, and Vice-Admiral of England ▪ before he had the General ship conferred on him.

And Secondly, That Oliver was but then General himself, and not proclaim'd Protector till several Moneths, if not above a Year after the death of General Dean, whom my Father im­mediately succeeded. And therefore a very Forgery, that for promoting that new Instrument, he first was advanced to the Office of High-Admiral. I would that this Libeller should know, that from a Lieutenant, he had past through all the eminent Offices of Sea-Imployme [...]t, and arrived to that of Gene­ral, about the Thirtieth Ye [...]r of his Age; in a time, full of the big­gest Sea-Action, that any Story mentions,; and when neither [Page 25] Bribes, nor Alliance; Favour, nor Affection, but Ability on­ly could Promote. I write not this to Vaunt; it is below my Principle and Practise; but to defend an abused Relation, I could say no less.

He adds [Who afterwards did eminent service, for the English Nation, at Hispaniola, when he delivered the Flower of the En­glish-Souldiery a Sacrifice to the Cow-killers,] This is an Un­truth so manifest, that no man, making Conscience of tell­ing Lyes, did ever charge it on him. Tis most notorious, that his imploy, was only as General of the Fleet: And that the Miscarriage lay not there, the History of that Affair not only relates, but the Libellers own words prove: For what had he to do with the English Army? who, First, had no command over them, it being the Charge and Office of a distinct General. And next, He never went a shore during the whole Exploit (but at Barbadoes, many Hundred Leagues short of the Theater on which that Tragedy was acted,) And Lastly, Let me tell the Man, That when the Forelorn and Land-Generals Regiment were Routed, it was the Sea-Regiment (com­manded by Vice-Admiral W. Goodson) that stood the shock, and stopt that Deluge.

And not to reflect on any, but Vindicate my deceast Father; that Conquest, which was in any respect obtained, was owing mostly to the Fleet, and that no less by Land then Sea.

But why the FLOWER of the English Army? 'Tis ma­nifest. The man had better Thoughts of those Times then he dares express; For what he rails furiously against elsewhere, as Persons imposing the Wicked Engagement, and Assassinating Traitors, &c. He now intitles to the Defence of the English Na­tion.

And since the then English Army, was the remainder of those Souldiers, that not only subverted the Kings Forces, but Protector'd Oliver Crumwell; it is evident he makes it his Army (at least) so far as he was concerned in being an English-man.

[Page 26]Besides, methinks the man bemoans their loss, though in Cir­cumstances very untrue; for neither were they the Flower of that Army (I thought they had been all Weeds in his account) Nor could the Flower of them have been sacrificed to the Cow-killers: But the Author of that ingenious Pamphlet, of the Worlds Mistake in Oliver Crumwell, has rendred a true Reason of that Mis­carriage, viz. That because the Design was laid in A [...]arice and Pride, hoping by the inexhaustible Wealth of the Indies, to have establisht a new Gentry and Nobility, as a Foundation for a new Monarchy; Heaven set it self against the Enterprize. And therefore 'twas not so much the Miscarriage of the People there, as the just Vengeance of the Almighty, for making that unjust War with Spain, and disguizing the Design to the Spanish Ambassador, with reitered Dissimulations, and horrible Impostures, as the same Au­thor more at large relates.

I then submit to the judgment of sober men, if this Reflection carries the least of weight or verity with it.

But he will not leave the Matter here; for says he, This was the Renegado, worse then three Turks, that performed such excellent Service, in the late Ducth Wars, in Plundering the two East-India Dutch Ships of the Prize-Goods, for which he was turned out of the House of Commons.

I shall still wave his surrility, and attend the Matter: His Service in the last Dutch War, will not be questioned by any man, that dares to set his Name to it: Not that I would be thought to justifie Wars; I know they arise from Lusts. But this being matter of Fact, I shall take leave to tell this Li­beller, that the success of the first Engagement, where about Twenty Four Ships were Taken, Burnt, and Sunck; Two Thousand Five Hundred Prisoners (said to be) brought home, besides what were slain, and wounded of the Hollanders; at the expence of but one old Duch Prize (that for want of sail fell into their Body) and about Three Hundred English Men slain, h [...]s been greatned, beyond [Page 27] all common Ellogi [...]s, by the insuceesfulness of later Engagements, whence greater things were promised and expected.

In short, how far he was a Master of his Art, both as a Seaman, and as a General; I leave to the Observation of his Friends, his own constant success, and what hereafter may come to pub­lick view of his own Remarks.

As for that false Aspersion, of Plundering the Dutch East-India-men, I shall avouch my Narrative of the Fact to be true, being an Eye-Witness, and more then any concerned in what related to his Proportion.

'Tis not unknown that two such Ships were taken, though it was never known, nor believed, by any in their Wits, that they were worth the fifth part of what was vulgarly brui­ted in the World. One of them was taken by a Captain, be­longing to his Squadron they call the Earl of Sandwich; and the other, by one of my Fathers: But that my Father was ever on board of either, or that he would suffer her to be main'd by any of his own Ships-Company; or that he ever took, or caused to be taken, one Clove, Nutmeg, blade of Mace, or skain of Silk, the common Lading of the Prizes; but by written Order from his Superior, as his share of the Divident (for about sixteen Moneths Service at Sea, and the expence of a constant Table) I utterly deny, and am perswaded, no man on Earth can ever prove; for could it have been, I am not ignorant how some of this Libellers Complection, would have compast Sea and Land, to have fecht him to Brook house; but to as little purpose as others were; so that as from wrong Premisses there can be no true Conclu­sion; so to say he was therefore turned out of the House of Commons (or for any thing else) was a down-right Fals­hood; but Suspensions upon Bills against any Man, are Custo­mary.

He concludes his Slanders and Scurrility with this Hope, That my Father leaving so great an Estate of Just (he means Ʋnjust) gotten goods to so Conscientious a Son, as my self, I will make satisfaction to the King.

[Page 28]But as this Fools bolt is soon shot (and that to have an Estate in this Age, there seems nothing more requisit then that it be thought so) so do I affirm upon very good knowledge (if I may be credited) That after all my Fathers great, many, and continual Imployments in the World, for near Thirty Years past, and his frequent Opportunities of Inriching his Family; he could never call himself Master of half that Estate, which is the private Acquisition of ordinary Merchants (not to say Brewers, and for ought I know Just-gotten Goods too) And if War be allowable with S.S. and the consequence of it; he has had many single hits, each of which might have enricht him more, then what he left, had he been but as for­ward to Feather his own Nest, as he was heartily inclined to acquit his Conscience in the discharge of his trust to his Coun­try; of which I will give an Instance, to be attested by many.

Being Admiral in the Streights of the Mediteranian, about the years 50, and 51. many Prizes were taken, and some of great value: Amongst the rest, was one, that had Five Chests of Sil­ver and Gold, amounting to several Thousands of Pounds; which he was so far from embezling (to his own use) or ad­mitting of the plea of his Captains (Distribute it amongst us, & if ever it be demanded, it shall be paid, or we will serve it out) As he wholly denied his Wife the curiosity of changing of but one piece of forreign Gold; for its equal weight of our own. And as in those times there was two great a watch over such men in Employment, to inrich themselves at the cost of the Publick; so must I say, that his whole Employment at Sea, since the Kings return, was not above sixteen Moneths; and for his other Offices they admitted not of Perquisits; and I challenge the whole World to lay the just ignominy of but one Bribe to his charge; though, to speak mo­destly, a thousand Families owe their advancement to his favour.

But of how ill report and consequence it is, that men devoted in life and estate, to the service of the Publick, should meet with so ill entertainment from the hands of such Privateers, that never knew what it was to be of publick importance, may deserve the no­tice of all true Patriots.

[Page 29]But perhaps the Libeller thought, that I ought as well to Inhe­rit my Fathers Miscarriages (if any) a [...] his Estate; which is contra­ry to Gods Practice, that imputes not the Fathers Iniquity to the Son: but that may be one reason why it is his; he shews a Mind not a little Anger-bit, who is not contented with the Living, but besieges the Tomb of the Dead for farther satisfaction.

Yet after all his Impudent Folly and Slander, he concludes with▪ [Taceo caetera, de mortuis nil nisi bonum.] but as he would make one be­lieve, he could say worse, so he would have us to think he had said nothing; who not only vented his worst Abuses, but what are in themselves most wretchedly false.

And as his Saying, He should speak well of the Dead, when he had said so ill, is a Contradiction; so his pretence of not saying more, is not less injurious; for his silence has wrong'd us more, then his Discourse: Since to Brow-beat the Dead, and Tryumph over their Graves, s [...]ows a greater want of Humanity, then I was wil­ing to think the debauchery of our Age had reduc'd any man to; but the pregnant Instances of S.S's Accomplishments have better inform'd me. And whosoever he is, I wish him repentance of these Impieties, and sincerely declare my hearty forgiveness of all his aggravating Injuries.

Part IV. The Grand Case in Controversie, about the Power of Juries, clearly Stated and rationally Resolv'd.

AS a deserted Path, over-grown by Time, makes men to question if it had ever been a Way: So the neglected case of Juries Power, over-run by the Inchroachments of the Bench, make many doubt if ever they had any.

I shall therefore endeavour to State and Vindicate the power of Juries, from the Assault of Innovation; and re-instate them of that Authority and Priviledge they are intituled to, and defended in, and by the Fundamental Laws of England.

1st [Per Judicium parum] As explained by the universal con­currance of Laws and Lawyers, we are to understand, A Jury of our Equals.

2d That no man shall be Taken, or Imprisoned, or be Disseized of his Free-hold, Liberties, Free-Customs, or be Out-lawed, or Ex­iled, or any other way destroyed; nor we shall not pass upon him, nor con­demn him, but by the Lawful Judgment of his Peers, Or, by the Law of the Land, 3 Hen. 9.29.

This is the antient Law of the Land, Confirmed by thirty two Parliaments, acknowledged by all Lawyers; nay confest and quoted by the man in hand, pag. 3.

3d The Question will be this, Whether from this Clause, and what is recorded as Explenatory and Confirmatory of it, [Page 31] there be sufficient to prove, That Juries are Judges of Law and Fact.

First, In order to the clear stating and full resolving of the Question, I shall explain briefly, and rescue the latter part of this Law-text, from the wretched construction of S.S. which is this.

OR, is either Disjunctive or Copulative; if Disjunctive, then it must imply some other Judges besides the Jury: If Copulative (Or for And) it still implies another Jurisdiction, besides that of the Peers or Jury; his consequence is, that Per Legem Terrae (or the Law of the Land) in that place, cannot (as this Novice insinuates) be understood to be the Tryal of the Jury, but to be the tryal both of Judge and Jury, according to that Maxim, Ex facto jus oritur.

I must confess my self to be a Novice to this preposterous way of Paraphrazing out of pure reputation.

Why if (Or) be disjunctive, it must imply some other Judges, I cannot see, and wonder at the mans impertenency (if whats so natural to him were to be wondred at) for though Expressi­ons, or the manner of Phraizing things may be disjunctive, yet that does no way follow, that the matters included in them should be so disjunctive of each other, as to imply a thing not con-natural: For instance, If I should say by way of promise to a man, Do me such a service, and I will give thee an hundred Shil­lings, or five pounds: Does, Or, imply another sum? or that such a Child is one thousand ninety and five Dayes, Or three Years old: Does Or suppose a Different Age?

In short, [Per Legem Terrae] or by the Law of the Land, cannot be understood Exclusive of a Judgment by Peers, it be­ing but a more ample and comprehensive way of phraizing the peoples right and priviledge of tryal by Juries.

If (Or) be considered Copulatively, He thinks it will fetch in the Justices, as Co-Judges with Juries; but that conclusion is wrong; for as such copulation disowns an exclusion of judg­ment by Peers, and makes it part of the Law of the Land; so let me tell him, that what is conceiv'd to be additional (as by [Page 32] the Law of the Land) cannot so easily be understood of Justices, as of the whole legal form & method of tryal in the case mentioned with the whole rights and priviledges of Juries and Prisoners.

That this is not mine own sence, but the Laws, if his so much honored Lord Cook be to be credited, let him turn to fol. 50. of the 2d part of his Institutes, where he will find this Doctrine, Tryals by the Law of the Land, are by due course and process of the Law; and they are by Indictment and Presentment of good and lawful Men: And what is this, but, Per Juditium parum, or Iudgment by Iuries? But of this more in the Appendix.

Next, That as Iuries are Iudges of Law and Fact (as hath been unhappily distinguisht) mens interest, putting that assunder, that Reason and Law originally joyned tog [...]ther) I shall proceed to evidence.

1. The first Argument is drawn from the Record of their own Indictments.

The Indictment is found and given into the Court as Billa Vera, or a true Indictment, by the Grand Inquest, or Iury of twelve men, before the Court can take cognizance of the Cause; upon this its recommended to the Petty-Jury, to judge the whole matter, and to deliver in their Verdict or Opinion, whe­ther A.B. be guilty in Manner and Form.

If then the Indictment comprehends both Law and Fact, and that the Jury is to give their Judgment in Manner and Form, and that Manner and Form takes in, and includes the whole Law and Fact of the Indictment (as they manifestly do) then, with great strength and clearness we may infer, That the Iury is Iudge of Law and Fact.

2. My Second Argument is drawn from the nature of the Verdict given.

Judgment is the determination and result of Law, therefore those who are Authors of s [...]ch Determinations or Resolutions must needs be I [...]ges of the Law. How is it possible, that a Jury can pronounce Legale Iudit [...]um, Legal Judgment, and yet not [Page 33] be Judges whether the Fact proved be obnoxious to the Law, or not. Juditium, quasi juris dictum, or the Mouth of Law; which being the Juries, they pronounce Law as well as Fact: A Verdict is a Child composed of Law and Fact, and inspirited with the Opinion of the Jury.

This is further evidenced from their own Proceedings at the Old Baily, where they imprisoned the Jury for not bring­ing in their Verdict, so as to render our Meeting Ʋnlawful, which they could never do, and not be Judges of that Law the Meet­ing was supposed to have transgrest.

In short, Since Guilty, and Not Guilty, are Verdicts; and that they cannot be given, but where a▪ Fact is obnoxious, or not obnoxious to Law; and since none are to give that Ver­dict, but the Jury, it follow [...], that the Jury are only Judges, because they only can criminate or clear. And where the power of determination is, there is the judgment of Law; but that is in the Jury.

Where there is no Law, there can be no Transgression. Now such Transgression being supposed, in the Verdict of Guilty, it is most plain, that Guilty cannot be pronounced but with a reference to the Law transgrest; and that reference can­not be made, but by such as are Judges of the extent of the Law.

3. My third Argument shall be drawn from the Punishment of the Malefactors.

To Punish any as a Malefactor, it is requisit he be proved such; but it is impossible he should be so, but with respect to some Law transgrest: Nor can he be concluded such a Trans­gressor, unless his Fact be judged obnoxious to the Law: And where thi [...] judgmen [...] is, there rests the judg-ship of Law and Fact; for that he should be legally punisht, pursuant to a legal Judgment, and yet the Authors of this Legal Judgment, not to be Judges o [...] the Breach of Law, is some of the pro­foundest [Page 34] Non-sence in Nature: What is this but to render the Jury meer Cyphers, when they shall only tell the Court, that which the Witness shall have swear to their hand? But because their Verdicts are Guilty, or Not Guilty, which determine the Fact meritorious of Punishment, or Acquittance; therefore have they the only power of Judgment.

4. My fourth Argument shall be drawn from a Maxim of their own, viz. Ex facto jus oritur. Therefore, says S.S. The Iury are not only Iudges.

It is such a way of drawing consequences, as I have not been acquainted with; for nothing can be clearer then the con­trary to this Conclusion.

If out of the Fact the Law arises, then those who are Judges of Fact, cannot escape being Judges of Law also; for Fact gives it.

This Passage puts a Ne plus ultra to the pretence of difficulty, and the necessity of alwayes asking Questions of the Justices; since the nature of the Fact clearly proved, carries the legality, or contrary in the bosom, if not in the front of it; and therefore obvious to the plainest and most rustick capa­city.

5. My next Argument shall be drawn from the ill-conse­quences of the opposite Opinion, viz. That men may be bought or sold out of their Lives, Liberties and Estates.

For if an enraged Bench, or otherways interested be the sole Judges of Law, then let any man be indicted of the most lawful act imaginable, it being such as he cannot deny, and which is prov'd by Evidences; the Jury must bring him in guilty, and so expose him to the sentence of the Justices, by leaving the Judgment of the Law, to their prepossest brests.

6. My last Argument will be this, that upon the opinion of our Adversaries, there must be two Evidence; one of the Fact, which is the Juries; and one of Law, which is the Justices. But because the Law knows no such conceit, and that the single [Page 35] Verdict of twelve men, is, and must be legally binding; there­fore are they Judges both of Law and Fact.

Object. Their main Objection is, That if the Justices be not Judges of Law, How comes it to pass that the Iury asks the sence of the Law at their Mouthes? according to that Maxime.

Ad questionem Iuris respondent Iudices, et ad questionem facti respon­dent Iuratores, as in page 2. of the Libel under Examina­tion.

Answ. This is so far from lessening the force of our prece­ding Arguments, that from this Objection we will fetch matter enough, to make a subsequential one, and that of no small im­port to the business controverted.

I grant a possibility of such an ignorance in Iuries, that there may be a necessity to inform them of the Law, by the better skill of the Iustices: But what then? therefore must they not be Iudges of Law, so far as concerns the Fact? nothing less; For though the Iustices may tell them the Law (and its their place) yet that's no part of the Verdict, as so said by the Iustices; but as understood, digested, and juditiously made the Iuries, by their own free-will and acceptance, upon their conviction of the truth of things reported by the Bench. As a man may be educated in any Religion; but to make it his proper Religion, 'tis requisite that he believe and embrace it juditiously, not implicitly.

Thus we frequently find the House of Lords to ask the opini­on of the Justices in Parliament; is the Vote, Order, or Act, therefore the Judges, and not the Parliaments?

The like in the Kings Council; Is the opinion of the Kings At­turney, or Solicitor, the Iudgment, Resolve, and Order of the Coun­cil, because he said it, and not because they made it theirs, by submitting to the reason, or legality of the thing debated and deli­vered?

And in London, Are the Orders of the Mayor Aldermen, and Common-Council, the Recorders, or City Council's, because his, or their Opinion in point of Law was ask'd? experience shews the con­trary.

[Page 36]From all these Premisses, 'tis time we draw this one most evi­dent Conclusion; That notwithstanding Juries of late are grown so out of fashion, and of power with some, that to shew any, is to incur the Threats and Menaces of the Court, to have their Noses Slit, their Throats Cut, their Bodies Impri­soned, and drag'd at a Carts Tayle through the City, &c. Yet that they are by the antient Laws of England, and force of Rea­son, the only right and proper Judges, as well of Law as Fact.

Part V. The Tryal, as related by S.S. Examined; and his Notes thereon Animadverted.

THAT I may appear to all impartial Men, unworthy of those Reflections, and hard Names S.S. is pleased to heap upon me, I shall conclude the Vindication of my Innocency with his own Relation of my Tryal.

And truly, when I weigh his frank Confessions, concerning Passages the most notorious; I should be amazed at his Indiscretion, did I not know how usual it is with God to leave such men under strong infatuations: For, to give it a short Character, its almost Verbatim, The Second Edition of our own Tryal; I mean that part which related to the Transactions of the Court and Prisoners.

And whether he has vindicated them from those Expressions, which to all sober men are most detestable, or backt the Accusa­tion of the Author of our Tryal, by his publique acknowledge­ment of them; let any but S.S. and his Juncto judge. How then the Author of that Tryal could justly be condemned,. for his Relation as scurrilous, and malicious, which is so exactly co­pied after by S.S. will be hard for any man of Sence to think, unless he brings his own Account under the same imputation.

But he tell us, That he thought good to set down the Names of those Justices who were present (Honoris Causa) with all their Additions and Titles; that so the World may know that the City of London wants not worthy Patriots, who dare call to an account these vile railing Rab­shekahs of this Age. And the rather because the Libeller hath in a dis­graceful way prefixt their names without any Additions to his Narative, thereby intending to make them odious to the People.

The Persons Nam'd are,
  • [Page 38]Sr. Sam. Starling, Knight, then Lord Mayor.
  • Sr. Jo. Robinson, Kt. and Bar.
  • Sr. Tho. Bludworth, Kt. and Alder.
  • Sr. Wil. Peak, Kt. and Alder.
  • Sr. Jo. Howell, Kt. and Recorder.
  • Sr. Rich. Ford, Kt. and Alder.
  • Sr. Jo. Shelden, Kt. and Alder.
  • Sr. Jo. Smith, Sheriffs.
  • Sr. Jam. Edwards, Sheriffs.

To which I must needs say, I knew a time, when the City of London had a better Advocate. What man in his Wits would not despise the Folly and Meanness of this wretched Pedagoge? The weakness of whose Discourse eminently shews the ricketted consti­tution of the Author.

First, He has but little of Religion, that dares to lie in the common Field of every mans knowledge; since he denies that ever the Author of the Tryal gave the aforementioned Persons, any Additions, when (Alder.) is to every one of them, that re­ally is so.

Next, I cannot chose but observe his vanity, as if the omit­ting of the Title (Sr.) had been a robbing them of their Ho­nour (I am sure they have very little that have no more) But if to give them their own Names, be matter of Disgrace, it is worth our while to consider, how disgraceful those Persons were in this Libellers account, before they had that Title given them; though I am apt to think, they were not less reputed before, then since; and because they write not themselves so much as that Au­thor Printed them, and that none can suppose them to omit those Titles, disgracefully to themselves; it is both ridiculous and false to charge such a Design upon the Author. But whilst he calls me, and my Fellow-Prisoner, the vile and railing Rabshekahs of this Age, and ventures to load us with Slander and Reproach; methinks he proves himself to be of that ill-bred Tribe, in accu­sing us for such.

But to his Nota's upon the Tryal.

Nota 1. page 13.

THE Prisoners in stubborn manner refusing to take their Hats, they were put on again by the same Person.

Answer, This is a Lye, to be confirmed by hundreds; we ne­ver did, nor never shall refuse to take our Hats, and put them on too, which we had no time to do; for having been taken off by the Keepers (I suppose in Kindness) seeing the Cour [...] displeas'd, or rather some in it) the Mayor (I think it was) cryed out, Sirrah, Who bid you pull off their Hats? Put on their Hats again. At which the same Keepers put them on, of which the Author of our Tryal has been more particular.

Nota 2. pag. 13.

The court observing that the Prisoners standing on the Leads behind the Bar, with their Hats on, facing the Court all that day, as it were daring the Court to a Tryal; so that the Court, and all the Spectators lookt upon them, as offering a great Af­front to the Honour of his Majesties Court; the Justices were resolved to chastize them for the same.

Answ. His second Nota, is his second Lye. For first we were not upon the Leads any time of the day, as many can attest, but in the Bale-dock, or within the Bar, attending upon the Try­als of Thieves and Murderers, to the displeasure of the Spectators▪ but not on our part. Besides, that this was done upon meer de­sign, is evident, because neither were the Goaled, nor we, so hard­ly treated the first day of our appearance, when there was equal ground for it.

Nota 3. pag. 14.

This is a great Falshood; for their Hats were put on, be­hind the Bar, before they came into Court.

Answ. But it is a great Truth that we were not behind the Bar at all, until towards the Evening, when cast into their stink­ing Hole, and there indeed they stay'd us behind the Bar three Hours. And for mine own part, I do declare, my Hat was clapt [Page 40] upon my head by the Keepers hand, within a very little space of the place in which we usually stood during the whole time of our Tryal.

Nota 4. pag. 14.

This is insignificant Canting.

Answ. What? Wil. Mead saying, Fear God, and dread his Power. O stupendious Impiety! That ever any profest Protestant should have so much out-sinned all Sence of God, and his Dreadful Power, as to repute that Seasonable Exhortation, Insignificant Canting: But this makes us the less to wonder at our Sufferings from such.

Nota 5. pag. 14.

It was by Sr. John Robinson observed, that Bushel, the Tender Conscienced Jury-man, made an offer to kiss the Book, but did not; wherefore he was called upon by the Court to be Sworn again.

Ans. How much that quick-sighted Lievtenant, had more Jealousie and Prejudice then others in his Eye, the many Spectators present can best decide; or mine own share, I did not observe him to gra­tifie the common Custom of the Court, more in the latter then former tender of the Oath unto him: But with what prepenst Unkindness and disdainful Ketch, he was treated, was obvious to those about him.

I perceive it is as Criminal to be Tender-conscienced, as it is esteem­ed Canting, to bid men Fear God: For as that Religious Advice was made matter of Mockage, so this good quality is not less ren­dred Suspitious. But how Tender-conscienced such persons are, that make so ill use of such Expressions, is best manifest in their severe Prose­cutions of men that really are so.

Nota 6. pag. 17.

As clear Evidence as ever was offered to any Jury, Two Witnesses prove the Fact against both the Prisoners, and the Prisoners confess the whole matter in effect, and justifie them­selves, and declare they will do the like again, whatever Laws the King [Page 41] and Parliament can provide against the same. O confident Impudency! Surely both King and Parliament will take notice of Penn's Arro­gancy.

Answ. It will be wholly needless to repeat the Evidence, twice done already; but to his Nota I answer thus, 1st That the Witnes­ses did not Swear, that we were at an Ʋnlawful Assembly, and that they were there, the Jury never scrupled. That part of the Indict­ment, which was so Indigestable with the Jury, was the Illegallity of the Assembly; and since the Court was not content with their Verdict upon a meer Fact, it argues, that they would have made them Judges of Law, by determining the Legallity, or Ille­gallity of the Meeting, not sworn to by the Witnesses. 2d The Mayor and Recorder differed in the Point; The Mayor was for sa­crificing Me only; The Recorder thought it Unreasonable that I should go without a Mate, and justifies his Apprehension, from the word Conspiracy; but where the Conspiracy was, we have leave to think.

The Bench being thus divided in the Point, 'twas ill observed by S.S. since the Person he most vindicates lies most liable to re­flection. 3d Though we confess to have been there, yet we de­ny to have been at an Ʋnlawful Assembly; which being the pur­pose of the Indictment, it was unseasonably observed. But 4ly We acknowledge before God, Angels, and Men, that MEET we must, and encourage others to do the like; yet so, as ne­ver to Contrive, or Abet the least Disturbance to the Civil Peace: And if from hence he stiles Me Impudent, and Arrogant, I am contented to bear his Scurvy Epithites till he is better learnt.

One Passage I cannot well omit, because it gives the man the Lye that spoke it. When W. Mead askt R. Brown, What he did there? Was he a Justice or no? If not, desired him to come down: R. Brown is said to answer him, by the relation of S.S. Sir, I am a Justice, and you are an impudent Fellow.

Which Answer carries as much of Falshood, as Incivility and Folly. For, First, he was no Justice in that place, the ground of the Question. And next, He might have spared the inso­lency of stiling Him an Impudent Fellow, who is, in external Re­spects, [Page 42] a Person no ways inferior to himself. And lastly, He shews not a little Folly, or S.S. for him, who ventures to call him an Impudent Fellow, in the end of the Sentence, that he stiled (Sir) in the beginning (a Title of so much Honour with S.S. pag. 10.) But if the Author of the Tryal gave not Titles and Additions, this Man hath not been wanting in ei­ther.

Nota 7. pag. 17.

How Mr. Penn plays upon the word Common.

Answ. I play'd upon nothing, but for working in defence of the Common Law. Some were so prodigal, as to play away my Li­berty.

But S.S. will have it, that the Mayor had Law enough, to de­fine the Common one; but at the rate he expresses it, he might have let it alone, unless his Exposition had turned more to his ac­count: For, if the Common Law be Common Reason, (as he says the Mayor defin'd it) and that being a man, I have common reason (which none of them had so much extrordinary Reason, as to evince the contrary) methinks they might have forborn so great an Instance of no Reason, as their commanding me to the Bale­dock, for demanding Common Reason.

I am well assured, that common Reason criminates no Assem­bly, peaceably met to Worship God, without the least appear­ance of Weapons Offensive or Defensive.

Nota 8. pag. 19.

This Nota referring to the Jury's being Judge of Law and Fact (as unhappily distinguisht) I omit to consider it further, it being fully unswered already in the fourth Part of this Discourse.

Nota 9. pag. 21.

Penn made such an uncivil Noise, that the Court could not give the Jury the Charge, he was therefore put into the Bale-dock, which stands even with the Bar; and the Pri­soners might hear the Charge there, as well as a Prisoner might hear at the Barr; this therefore was a causeless Exclamation.

[Page 43] Answ. If my noise was uncivil, it was because it was Legal; and I expect not a better Character from such, as so pro­claim me a broacher of new Heresies, because I honestly demanded the free course of the Fundamental Laws of England. The plain truth was this; that because I endeavoured to inform the Jury of my Case, and to take off the asperity of some mens passions, they turn'd me, and my Companion, into the Bale-dock, which though even with the Bar, yet besides the main Court, and so deeply impaled, that we could not see the Court, nor hear the Charge; but upon information, that the Recorder was charging the Jury, I stept up, and my Fellow-Prisoner after me, and exclaim­ed against the irregularity of such proceedings. And for this plain Reproof, and but necessary demand of the English Right, of Prisoners being present at the giving of the Charge, commanded us into the Hole, a place so noisom and stinking, that the Mayor himself would have thought it an unfit Sty for his Swine.

Nota 10. page 23.

Six or seven of the Jury men did agree to the Mayors question; upon which Bushel, Hammond, and two others opposed themselves, They allowed of no such word, as an unlawfull Assembly in their Verdict.

Answ. Its not the least unhappiness this Libeller is attended with, to be frequent in self-contradiction; for in the Interogato­ries immediately precedent, the Mayor speaks thus to the Fore­man of the Jury.

May. What, was it not an unlawfull Assembly?

Fore-m. My Lord, This is all I had in Commission.

And yet this man was one of the seven S.S. would have a Dissenter.

I hope, since the Fore-man had no more in Commission, S.S. is to blame for so impudent an Assertion, as that seven at that time dissented from the rest.

Nata 11. page 25.

A peaceable innocent people indeed; that when the King had seized the Meeting-House into his hands (as by Law he might) they would come and break open the doors; they [Page 44] violently over-power'd the Constable; and his Watchmen and 'tis prov'd, that the people, at this time kick and spurn'd the Constable, and his watch-men; [...]e endeavouring to dissipate this unlawfull Assembly, as is sworn by Read the Constable.

Answ. This does but still aggravate: How much S.S. is an Enemy to all truth, What if the Door was broken open? had not the Quakers (in Justice and Equity) right to the Place? However, it is a most false Consequence, that they spurn'd the Constable, because he was spurn'd at their Meeting, since many are accustom'd to crow'd after the Constables and Soul­diers, who are no Quakers, but come to see their usage.

Nor does Read swear it was the Quakers, but some people present: And some of the Jury fully answered that part of the Evidence, in this discreet Observation, That it was impossible any man could pass through so great a Throng, and not be pusht, or his Feet trod upon.

Besides, It does not appear that the House was seized pursuant to any Tryal, Conviction, or Judgment by the Laws of England, and that such seizure is not according to the sence of them, appears by the Statute of the 17th of Charles the first, Cap. 10. where it is expresly said, That neither his Majesty, nor his Council, have, or ought to have any Jurisdiction, Power or Authority by English Bill, Petition, Articles, Libel, or any other arbitrary way whatsoever, to ex­amine or draw into question, determine or dispose of the Lands, Tene­ments, Hereditaments, Goods and Chattels of any Subjects of this Kingdom, but that the same ought to be tryed and determined, in the Courts of Justice, and by the ordinary Course of Law.

Nota 12. page 2 [...].

The Jury in Mr Pen's opinion, and Bushels both, are perjured men, for that at last they brought in a Verdict contradictory to this.

Answ. Those that have read the Tryal will apprehend his meaning; for upon their bringing me in, not guilty, of an unlawfull Meeting; but guilty onely of speaking in the pl [...]ce called Grace-Church-Street (and the Court menacing [Page 45] them much, and saying, They would have a Verdict, meaning Guilty.)

I said, the consent of Twelve men, is a Verdict in Law; and if they bring in another Verdict, contrary to this, they are Perjured Men. But what then? Therefore when they brought me in Not Guilty, had they perjudred themselves? Nothing less. I am ashamed to read so ridiculous a Non Sequitur in Print.

If I understand what Contraries mean, the opposit to Not Guil­ty, must be Guilty: But that they gave no such Verdict absolute­ly, is manifest from the Courts not receiving it; for above all things they waited and prest hard for it. Therefore to be guilty of Speaking in Grace-Church-Street, and not at an Ʋnlawful Assembly, is a not being guilty in Law; and consequently their Verdict no Contradiction.

Nota 13. pag. 26.

At this time some of the Jury complained to the Court, that the four men, viz. Bushel, Hammond, and the other two, would starve them, and that they had brought Strong-water-Bottles in their Pockets designedly.

Answ. 'Tis not the Quakers Light, but S.S. his Darkness that is the Father of Lyes; and Miserable will be the End of such, as make them their Refuge.

For, First, There was no such Complaint made.

Secondly, Nor was there any just Occasion for one.

And Lastly, Methinks this Libeller might remember that if he thought me condemnable, for not giving the Justices more Ti­tles and Additions then their own Names, and that of Alder­men; he upon greater cause deserves a Check, that cannot af­ford, those able and honest Citizens, more then half their Names, and scarcely that too.

Nota 14. pag. 26.

The Court having regard to the Health of the Jury, adjourned till seven next morning, although it was Sunday, which otherwise they would not have done.

Answ. It was, and is a real Question, Whether the health of [Page 46] the Jury, or condemnation of the Prisoners, was most in their eye; but no matter which: I shall briefly insist upon their ad­journment to that Day.

I suppose it is not unknown to those that know Law, that Di­es Dominicus non est in lege dies, or, That the Lords Day, is not a Day in Law: That is, There ought not to be Assizes, Sessions, or Termes held on that Day; because it is a time the Law takes no cogni­zance of, nor has any relation to; thus Cook in his first Instit. Sect. 201. fol. 155. where he excludes that day from the num­ber of those he calls Dies Juridici, or Dayes in Law.

The consequence of which must needs be this, That their whole procedure at that Session, becomes question'd, and void in Law. But to justifie those Transactions, they got a Com­mission after Sessions, anti-dated, from the time of that Ad­journment.

I shall not much reflect upon the Passage; it carries, its own Comment with it: But methinks more Skill in Law, or Modera­tion to the Prisoners and Jury, might have prevented such an ex­trajudicial procedure.

Nota 15. pag. 28.

This is the fourth time the Jury brought in this insignifi­cant Verdict, viz. That they find Penn guilty of speak­ing in Grace-Church-Street, and how this answers the Question, viz.

What say you? Is W. Penn guilty of the matter whereof he stands in­dicted, in Manner and Form, or not guilty? Let the World judge whe­ther that be a Verdict or not: They thus often abusing the Court, made the displeasure of the Court against them, and surely not without cause.

Answ. This Nota is upon the Juries continuance of their Ver­dict, of only bringing me in Guilty of spe [...]king in Grace-Church-Street, delivered First▪day Morning: But how reasonable will be the matter of our inquiery and answer.

If S.S. will have the Jury only Judge of Fact (which the Recor­der expresly aff [...]rmed on the Bench, using words to this purpose, We will have you to know, that you shall not be Judges of what the Law says, &c.

[Page 47]Why are they here condemned for undertaking no farther? The [...]rought in the Fact, but that the Court thought incom­prehensive of the Indictment, which being complicated of Law and Fact, were to answer the Question in Manner and Form. And if this doth not inthrone them Judges, how far the Fact reaches th [...] Law, and whether by Law A.B. is guilty or not guilty, I must confess my self mistaken; and I am sure to have company enough of all men of sence and Sobriety.

So that what the Jury is deny'd elsewhere, is given here, and S.S. equally angry, for their being, and not being sole Judges.

Nota 16. pag. 28.

William Penn made such a Noise in the Court, that the Court could not hear the Jury, nor the Jury the Court.

Answ. If to speak to be heard, be Noise. I was guilty of his Observation; but I need the less to vindicate my self, who have so many living Witnesses of Credit, to do it for me: If they would not hear me, they ought not to have condemned me; but if they could condemn me, they in Conscience ought not to over-rule, but hear me.

But would any know the Noise I made, read my words and 'twill be found S.S. has only Nois'd a Fiction. Upon their mena­cing of the Jury, I thus spoke.

It is intollerable that my Jury should be thus menaced? Is this accor­ding to the Fundamental Laws? (thus far S.S.) Are not they my pro­per Judges by the Great Charter of England? What hope is there of ever having Justice done, when Juries are cheek▪t, and their Verdicts rejected? I am concerned to speak, and grieved to see such arbitrary Proceedings. Did not the Lievtenant of the Tower render One of them worse then a Fellon? and do you not plainly seem to condemn such for factious Fellows, who an­swer not your Ends? Ʋnhappy are those Juries, who are threatned to be fin [...]d, and starved, and ruined, if they give not in Verdicts contrary to their Consciences.

This was the Noise charged upon me, and for this Fetters com­manded [Page 48] to be brought by the Mayor; how justly, let the inge­nious Reader judge.

Nota 17. pag. 29.

Ʋpon this Mr. Penn was silent and quiet, though no­thing was done to him.

Answ. I perceive the man will rather play at small Game (as the Proverb is) then sit out. What? Would he suggest my fear to the World, after his own relation has given such large testi­mony of my Boldness, in so much as to dare the Court to a Tryal, pag. 13? Or is he angry that I held my Tongue (as he says) And yet the Mayor and Recorder so angry, that I spoke, as that I must be Sta­ked with Iron Fetters to the Ground; an Unkindness I forgive, but which will render their Carriage Infamous with all Sober and Moderate Men. But three things I observe, and conclude this ri­diculous Nota.

1s [...] That my retort upon the Mayors Menace was omitted by S.S. which was this.

Do your Pleasure, I matter not your Fetters. Which was very far from being over-aw'd by their Displeasure, as the remain­der of my Tryal manifested (which I speak to Gods Glory, whose holy Power carried my mind over the heads of all that there ar­raign'd or judg'd me.)

Secondly, There was no occasion for much Discourse, as by the Tryal appears, the Court being ready to break up, and then to whom should I speak.

Thirdly, I would that S.S. and his Brethren should know, That I only Worship, Fear, and Bow, before the Glorious Everlast­ing God of Heaven and Earth, and therefore Dread not Mortal Man, whose Breath is in his Nostrils, and has power only to hurt the Body, and that no further then a permitted him of God; whose holy Will I am resigned to answer, in Doing and Suffering, as he shall enable me. And whatever my Portion be from this Generation, whether Good-report or Bad-report, Acceptance or Suffering, I matter not; but bles [...] his Providence, and shall accept it all as an Earnest of his Eternal Love, and rest in Glory.

Nota 18. pag. 29.

These men were very like to be starved, when they had Rost-Beef, Capons, Wine, and Strong-Drink, sent them (as is ready to be proved) during the time they were con­sidering of their Verdict.

Answ. This is but a vain Surmize, and how positively so ever asserted, the Proof remains behind, which had there been any; it is not to be thought this Libeller would have omitted it; besides, the Officers of the Court were sworn to keep them from all sort of Refreshmen. But had it been so, I see no evil in the thing, un­less it be an Evil to prevent men from starving, especially since they were not there encloyster'd for not agreeing in their Ver­dict, but for agreeing in a Verdict some Persons humors would not allow for one, as the Juries frequent Cries, We are Agreed, We are Agreed, &c. do plentifully evidence. This ends his No­ta's, and I shall now take leave to remark on him.

Nota 1.

My first Observation will be this, That in his re­lation of my Tryal, though in many things he does me Right, yet in some places, he does both me and the Law wrong; For its familiar with him to slip over those Expressions of mine, which tell the World, how vehemently I called for Right; and willing I was to be tried by the Fundamental Laws of England, whilst represented as a Seditious Person, which my Soul abhors, thus pag. 17, 28, 31.

But more especially that Clause, 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 Recorders heart. To which I might add his threatning to Cart the Jury about the City, &c. pag. 19. The intent of which unfair dealing must needs arise from an apprehension of the disadvantage and guilt that would be attributed to them; whilst nothing more manifests both, then the partiallity of these parts of the Narrative.

Nota 2.

My second Remark will be upon the folly of this Boaster, which shews it self so great, that it is become [Page 48] already the scorn and raillery of the Town: For insteed of cast­ing a friendly Covert over the Nakedness of his Patrons, he brings them out-stript in Print, and allows, nay vindicates, those very Indiscretions, which are irreconcileable with the sense of eve­ry sober man, and that hitherto were scarely credited by their Enemies in the relation of our Tryal, but now believed by their best Friend, because divulged with a seeming Priviledge in the Account given by S.S. This appears.

  • First, pag. 1, 22. In Jo. Robinson's Expression to Edw. Bushel a Ju­ry-man, That he deserved to be indicted more then any man, that had been brought to the Bar that day.
  • 2dly pag. 22. In the Recorders Saying to that Person, You mani­festly shew your self an Abettor of Faction.
  • 3dly pag. 3, 27. In the Recorders Menace, Ile have a positive verdict, or you shall starve for it.
  • 4ly pag. 28. The same person to Edw. Bushel, You are a factious Fellow, Ile set a Mark upon you; whilst I have to do in the City, Ile have an eye on you.
  • 5ly pag. 29. Again, You will find the next Sessions of Parlia­ment, There will be a Law made, that those that will not Conform to the Law, shall not have the Protection of the Law.
  • 6ly pag. 29. The very same person thus again, Bring another ver­dict, or you shall starve.
  • 7ly pag. 29. And as that which is fittest to bring up the rear of all his Threats, because the most Malignant, I shall insert that notorious Passage of the Inquisition, as by S.S.

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.

Of the Mayor, he gives us this Account.
  • [Page 49]8ly pag. 22. The Mayor to Ed. Bushel thus, You are an impudent Fellow, I will put a mark upon you.
  • 9ly pag. 24. To the Jury, What will you be lead by such a silly Fel­low as Bushel, a canting Fellow.
  • 10ly pag. 37. To Edw. Bushel again. You are a factious Fellow, and a course ought to be taken with you.
  • 11ly pag. 27. Edward Bushel to T.B. I have done according to my Conscience.

    That Conscience of yours would cut my Throat.


    No my Lord it never shall.


    But rather then you shall cut my Throat, I will in defence of my self, cut yours first.

This last Expression horribly belyes the Mayor, and wrongs his words; for many sufficient Witnesses, they say, will deposite, that he fairly said, But I will cut yours, as soon as I can.

  • 12ly pag. 28. And speaking to the Jury, in reference to E. Bushel, saith he, Were I of the Jury, rather then he should starve me, I would slit his Nose for him.

It was fairly done of S.S. and the whole City and King­dom are great Debters, to his franck Discovery, and plain Acknowledgements.

We may now easily understand the meaning of the word MARK, by the Paraphase of Slitting of Noses; for that Ex­pression seems to be the Key that opens the Mystery of the for­mer: Of how ill consequence that Threat has proved, the late tragical Assassinates, in several places shew. I will not say, they may be imputed, to so ill a presedent as the Mayors Menace [Page 52] to Edw. Bushel, from his Tribunal Seat, in all his Court Forma­lities; But certainly they must be as neer a kin, that offer such barba­rous Affronts to Parliaments and Juries, as threatning and doing are.

It is hoped, there will be no further need of such Remarks, and that the Act expected, will prove as well a Protection to the Noses of Juries, as Members of the high Court of Parliament.

By this time the Courteous Reader cannot but see, with how lit­tle of Truth and Reputation he triumphs over us, and vindicates his Friends; since more could scarcely have been said for us, and against them, then the impudent Repetition of things so Scurrilous, Injuditial, and Ill-timed: And indeed, the cold reception it finds, with all that read it, might have saved me this labour; but that I was informed, how much a Reply was expected from me.

And that I am not ignorant, how natural it is, for men of this Mans form of understanding, to conceit their Pamphlet unanswerable, because not answered, though the only reason of it, may be its indesert of so much Pains

To conclude, However busie some sort of men may be (and I hear not a little of their Projects, to mis-represent me to the King, and Persons of eminent Employ, that with less hazard to themselves, they may sacrifice me to their injust hate.

I do declare my Judgment, and that of my abused Friends, in things relating to Civil Government, and by it we would be mea­sured, and in the Strength of God resolve to stand.

First, That we acknowledge Government to be necessary, because of Transgressors.

Secondly, That this Government should consist of wholesom Laws, to supress Vice and Immorral Practices, as Oaths, Whore­doms, Murders, Lyes, Thefts, Extortion, Treachery, Prophane­ness, Defamation, and the like Ungodly and Immodest Actions; and in the encouragement of Men contrarily quallified: These are Fun­damentals in Law and Gospel. In short, We heartily own the English Government upon its ancient Civil Bassis.

Thirdly, That there be many other temporary Laws suited to State Emergency, in civil matters, as in Trade, &c. to which we also account ourselves oblieg'd.

[Page 51]Fourthly, That we there only dissent, where Conscience in point of Faith and Worship towards God is concerned.

Fifthly, That we utterly renounce, as an horrible Impiety, the Pro­motion of our Interest or Religion, by the Blood of our Opposers.

Sixthly, That if we are deny'd our Freedom, in the Exercise of our Consciences to God (though otherwise peaceable and industrious) as it has been so will it still be our constant practice (However it appears in­tollerable to Flesh and Blood, that we should always be the Anvil, on which the Hammer of every Power beats the heavy streaks of its unmerited Displeasure) to sustain all in Peace and Patience, because Vengeance belongs to God, who certainly will repay it.

If therefore any that think themselves concerned in this Trea­tise, shall offer to suggest the contrary to these Assertions and Con­fessions, I do hereby declare them Slanderers of the greatest In­nocency upon Earth; and give them this publique Challenge once for all, that as we will never baulk a fair debate, where every point in controversie may receive a full discovery and decission; so do we charge such Adversaries for the future, if they would▪ have the reputation of true men, to bring their Names and Scru­ples into open view, that so the Apprehensions of us may be justi­fied, or our Innocency relieved from the heavy pressure of their injust Slanders.

W. Penn.

An APPENDIX; Wherein the Fourth Section of S.S. his Pamphlet, (intituled, The Fining of that Jury, that gave two Contrary Verdicts Ju­stified, to prevent a Failer of Justice in London) Examined.


UT obstruatur os iniqua loquentium. Have I undertaken to answer this scurrilous Libeller: And in clearing these Jurors from his so foul Aspertion, shall manifest to the World, not only the horrid falseness of his Charge against them; but lay open the Ʋn [...]ustness and Arbitrari­ness of those Proceedings, which this Author seems to have the Confidence now in Print to vindicate.

The Wise-man asserts, That he that uttereth a Slander is a Fool, Prov. 10.8. And the Psalmist commands, That the Lying Lips be put to silence, Psa. 31.18.

And to evidence his folly, let Truth (the Mother of Justice) arise, and plead their Innocency, against one who endeavours to abuse and tra­duce, as well the Liberties of all the Free-men of England, as these respective Jurors, whose Actions have rendred them worthy Citizens of London, and faithful Friends to their Country.

THE Cause for which the Jurors were fined and impriso­ned (by the Bench at the Old Baily) S.S boldly asserts was for [their giving in two Contrary Verdicts.

The Falshood of which Assertion may not only be manifested by many Hundreds of Citizens, who were Eye and Ear Witnesses of their Arbitrary and Illegal Procedure (as well towards the other [Page 53] Prisoners there, as these Jurors) but also testified by many of this Libellers own Approved Authorities.

1. Let us look back into the third Sect of his Pamphlet, where he has given frequent Tests against the verity of his fourth Sect's Assertion.

The Jury having had no Evidence of any unlawful Act done by W.P. could not bring him in Guilty Modo & Forma &c. yet four times brought in so much as was by Witnesses proved a­gainst him, viz. That Wil. Penn was guilty of speaking in Grace-Church Street, as pag. 23, 24, 27, 28. Which (being all the Fact proved, yet far short of what was laid against him in the In­dictment) the Recorder declared was no Verdict in Law, redou­ [...]ing the Expression or Substance thereof, no less then four or f [...]ve times, as pag. 23, 24, 27, 28, 29. And in page 30. the Ju­r [...]s brought in W.P. Not Guilty in Manner and Form as he stood [...]. Other Verdict I never heard that the Jurors brought in neither doth S.S. in his Relation of the Tryal pretend i [...]

A [...]d why he should thus Reproach the Jurors, Groundlesly, and so palpably give the Lye to himself, Let the Juditious judge.

2. Let us examine the Retorn of the Cause, of the Jurors Impri­sonment, which now lies before the Justices of Common-Pleas at Westminster. (Wherein S.S. Mayor, J.H. Recorder, and their Coun­cil, with long and tedious consideration had accumilated so much Formality and needless Circumstances, as swelled up the bulk to at least Twelve Sheets of Paper) The matter or cause of their Imprisonment therein is only this, viz. ‘De eo quod ipsi pred. Jur. modo hic eosdem Wil. Penn & Wil. Mead de pred. transgr. contemt. assemblac. & tumult. contra legem hujus Reg­ni Angliae, et contra Plenam & manifestam. Evidentiam, et contra Directionem Curiae in materia legis hic de & super pre­missis eisdem Jur. versus prefact. W.P. & W.M. in Cur. hic aperte dat. & declarat. de praemissis eis impoit. in Indict. pred. acquietaverunt in contemt. dicti Dom. Regis nunc legum (que) [Page 54] suorum &c.’ The substance of which is, That the aforesaid Jurors did acquit the said William Penn and William Mead from the Tres­pass, Contempt, and unlawful Assembly, and tumult against the Law of this Kingdom of England, and against full and manifest Evidence, and against the Direction of the Court in matters of Law openly given and declared in Court against the said W.P. and W.M. in contempt of the Lord the King, and his Laws &c.

By which it's plainly manifest and evident that these Jurors were never guilty of giving two contrary Verdicts, or fined and imprisoned by the Bench for any such Fact, as S.S. hath falsly and scandalously suggested.

And truly if S S. has been an Eye and Ear Witness of all that passed in this affair (as he affirms pa. 10) we may without breach of Charity, charge him with having a very treacherous Memory, which is an ill Companion for a Lyar.

But next we come to enter upon the matter promised, and to ex­amine whether or no he has justifi [...]d the fining of that Jury, by reason Law and Authority or any of them in order to which let us recite his words (he saith.)

Page 31. In regard that this is a Case, that very much con­cerns the King and Kingdom, and is now under the Considera­tion of all the Judges, I shall only make four Remarks upon this Case, and leave the Determination of the same to the honoura­ble Sages of our Law.

Answer, Surely our Author had but a small stock of courage, that it should fail him in writing half a dozen Lines, What? (in uno flat [...]) to justifie the fining of a Jury, and to leave it again to the Determinations of the Sages of the Law.

He might have left it at first to their Determination, and have spared his pains, of appearing in Print, and yet have been thought never the unwiser Man for his silence.

S.S. His first REMARK.

As Nature (says he) abhors a vacuum in the Universe, so it is the honour of our Law, that will not suffer a Failer of Justice, [Page 55] according to that Maxime, Ne curia regis desiceret in Justitia ex­hibenda. Therefore it is that although our Law appoints all Tryals to be by Juries, yet in six Cases cited by my Lord Cook, 1. p. Inst. sect 102. fol. 74. the Tryal is by Certificate, as in case a person be in Scotland, in Prison, and at Burdeaux, &c.

Answ. Our Author who quotes Cook, might also have remem­bred thi [...] Maxime used by him, 4 Inst. 308. Ʋbi non est lex ibi non est Transgressio, Where there is no Law there is no Transgression: As for the matter of Tryals by Certificate, it is as Forreign to the matters in debate as Burdeaux or Scotland is distant from West­minster-Hall. Neither does S S in any wise, by his Discourse, apply it to that purpose, but barely proceeds.

In like manner Petty-Jurors, that have given their Verdict contrary to their Evidence, have been fined by the Justices, in Cases where the Law hath provided no ot [...]r Punishment, as by Attaint &c.

Answ. First, Observe the strangeness of S.S. his consequence. Because the Law provides, th [...] For [...]eign matters a [...]ed (in partibus, transmarinis) shall be evidenced or tryed by Certificate from those parts: Therefore Facts done or acted at home, in publique Courts of Justice, shall not be determined in ordinary Courts o [...] Law (per legale judicium parium) but by the arbitrary judgment of the Bench or Court.

Secondly, Observe how various this l [...]tter matter is to S.S. his Text, viz Juries Fined for giving two Contrary Verdicts Justifi­ed; changed into Juries Fined for giving in a Verdict Contrary to E­vidence. And since the latter is the Text to his subsequent Dis­course, let us try and examine his Doctrine.

Our Author to prove, That Justices have fined Jurors, for bringing in Verdicts contrary to Evidence, gives us his Autho­rities thus.

‘Vide Whart [...]ns Case, Yelverton fol. 23. Noy reports the same fol. 48. And Judge Popham said, there were divers Presedents to that pupose, and cites divers, one by Justices in Eire.

[Page 56] Watts vers. Braines, in an Appeal to B.R. Crook l. 3. 779. vide Leonard l. 2. 102. pl. 175. and l. 3. 147. pl. 196. Southwels Case in the Exchequor.’ Moor 730. Lemons Case in the Court of Wards. Cook l. 12. 23. Prices Case in the Star-Chamber.

Answ. That these Cases are material to our Authors purpose (more then to amuse the Reader with Cotations) I cannot find, neither doth S.S. set forth the substance, whereby this Age might understand their Drift and Intent.

But Cook, who he quotes in his justification, was clearly of another Opinion to what S.S. would suggest; for in the Case he cites 12 Reports 23. That Lover of his Country, and England's Liberties,Note: Pas. 5. Ja. speaking of Ju­rors Freedom by Law to give their Verdicts, declares, That the Law will not suppose any indifferent, when he is sworn to serve the King &c. To which agree [...] says he, the Books in 22 Ass. 77. Assise p. 13. 21 E. 3 17. 19 H. 6.19. 47 E. 3.17. 27 H. 8.2. F.N.B. 115. A—And the Law presumes that every Juror will be in­different when he is sworn; Nor will the Law admit proof against this presumption.

But S.S. as conscious of the nullity, of those before recited Authorities, to justifie his Cause, gives us one, as he supposes, to purpose, viz. Wagstaffs Case Trin. 17. C. 2. in B.R. This (says he) agrees with our present Case in all points.

And concludes with this, Mich. 16. Car. 2. in Banco Regis: Leech and five other, being of the Jury, at Justice Hall in the Old-Baily, the last Sessions, refused to find certain Quakers guilty, according to their Evidence, and upon that they were bound to appear in the Kings Bench the first day of the next Tearm; they appeared accordingly, and the Court direct­ed an Information against them, and upon that they were fi­ned.’

Upon which S.S. concludes the fining of Jurors, that find contrary to their Evidence is no innovaton, but alwayes practized, and that by as learned Judges, as ever England Bred.

We shall not much insist upon the imparity of this last Case [Page 57] in its Points, to that in hand, being of little further use then to manifest the ignorance and falsity of our Author, so only say▪ this to it, that (1) see his ignorance, that appears by his own showing. Leech's Iury, says he, were fined upon an Information brought against them in the Kings-Bench; which much varies from the Case of Edw. Bushel &c. in that they were Arbitrarily fined by the Bench at the Old-Baily, without Information or mat­ter of Record, or being brought to answer by any prec [...]ss of Law, expresly against the Stat. 25. E. 3. cap. 3.

(2.) See the impudent Falsity of this Libeller; Its acknow­ledged that Leech, with five other Jury-men, of whom were Anthony Selby, Oylman, in Pudding Lane; Edward Briscoe, in Loth­bury; —Brown, a Dyer, in Thames-Street, London &c. Per­sons of good Reputation, and well known in this City, were (as S.S. alledges) bound to appear in the King-Bench, by R. Hyde then chief Iustice, who after many foul Reproaches and daring Menaces to those Citizens of London, (as is too frequent a practise in that Court) commanded an Information to be exhibited against them in the Crown Office, for acquitting som [...] Quakers, who were given them in charge at the Old-Baily, to which-they all willingly appeared; but that they were sized thereon (as asserted by S.S.) is a most horrid Ʋntruth; for Hyde never afterwards in his life time, was so hardy to prosecute the same to Trial; nor had J.K. his Successor so much Courage to compleat his Pre­decessors—Enter [...]rize, but prudently surceas'd the Su [...]t: So this Case cited by S.S is but like the rest of his Authorities, with which he would patch up and salve his Patrons illegal and arbitrary Procedures.

But that we may come more closly to the point in hand, First, We absolutely deny S.S. his Conclusion, and do affirm, that as well the Fining and Imprisoning, as otherwise punishing a Iury of twelve men (I [...] pannelled to try &c. betwixt the King and a Prison [...]r) for giving a Verdict according to their Conscience, though (in the sence of the Bench and Iustices in Eier) contrary to Evidence, is an Innovation, and the practise of it against Reason, the Law of England, and the Liberties of its Freeborn People.

This Point is so considerable, that I may say and affirm, that the fairest Flower, that now grows in the Garden of the English-mans [Page 58] Liberties, is a fair Tryal by his Peers, or Twelve of his Neighbours, which so much Artifice and Violence is used, by the wild B [...]res of our age, to pluck up by the Roots.

In order to its defence and security, let us first remove that grand Ob [...]ection of our Adversary, which he makes a Foundation for his a [...]ter superstructure of violence and Oppression; A [...]d that is from the 29th Chapt [...]r of the Great Chapter, on these words, Or by the Law of the Land, intimating therefrom, that by, (or by the Law of the Land) is meant [...]ome other Judges, Judica­tu [...]e, or Jurisdiction, then Judgment of Peers, as in the third page of his Pamphlet.

The Judgment of [...]oke, 2 Instit 50) an undeniable Author, and authority, may serv. o [...]ear the p [...]nt. who writes thu [...] up­on his Exposition on (per [...])

First, For the true se [...]ce and expo [...]ition of these words (says h [...]) See the Statute of 37 E. 3. cap. 8 where the words, By the Law of the Land, are rendred, without due prosess of Law. For there it is said, tho [...]gh it be contained in the Great Charter, that [...] man be taken, imprisoned, or put out of h [...]s Free-hold without [...] of Law, that is, by Indictment, or Presentment of good and Lawfull men, where such Deeds be done in due manner, Note: 25 F. 3, & 4. or b [...] Writ ori­ginal of the Common-Law.

Secondly, Without being brought in to answer, but by due process of the Common-Law.

Thirdly, No man be put to answer without present­ment before Justices, 28 E. 3.3. or thing of Record, or by due Process, Note: 37 E. 3.8. or by Writ original, according to the old Law of the LandNote: 42 E. 3.3.

By which is most apparent to every rea [...]onable un­derstanding, that by the words (or by the Law of the Land) is not meant other Jurisdi [...]tion, Judges or Judicature ▪ (wherein, or where­by any man is to be tryed) as S.S. would ignorantly have it; but that the Proceedings against a Free-man of England, in order to the Judgment of his Peers, or twelve Neighbours, shall be ac­cording to the Laws of the Land, as by Presentment, Indictment &c. Statute 37 E. 3 cap. 8.

And Coke declares, that the said 29th Chapter was but Declarato­ry of the old Law of the Land, which knew no other Judgments, or [Page 59] Jurisdictions for its free Inhabitants, but Legale Juditium parium suorum; neither have the Free-men of England heard of any such, except by those arbitrary Innovators, who have felt the smart of their sore Oppressions, by the hand of Justice, & have received con­dign Punishment, as due rewards for their introducing of new Ju­risdictions, as the Reader may see at large, Cook 2 Instit. fol. 51. Cook 4 Inst. fol. 41. And Horns Mirror of Justice, cap. 5. sect. 1. And this seasonable Caveat and Caution Cook ▪ has left as a Legacy to such Time-Servers, Qui corum Vestigjis insistunt, corum exitus per­horrescant.

This having SHAKEN HIS SANDY FOUNDA­TION, by the stablished Fundamental Laws, and the Responsis Prudentium, upon the Ancient Statutes of England. Let us try the strength of his Babel-superstructure by the same infallable Rules and Measures.

Says S.S. [The fining of Jurors has been alwayes practized.] as pag. 33.

Answ. Truly his Prescription for time is unquestionable, if he but prove by Authority, what he barely affirms, but this I fear he will fall short in: Does he bring his Examples Usages or Cu­stoms (so to fine Jurors) from the times or Laws of Alfred, Athel­ston, Edmundus, Edgar, Canutus, Edward the Confessor, William the first, Henry the first, Noble and Famous Princes of this Nation, (many of whose Laws are yet in force,) from our Charter of Liberties, an­cient Statutes of this Realm? Nothing less.

But should I grant that he had brought a Presedent of later standing to countenance the late illegal procedure (as by Wagstaffs Case it appears he has) will it not deservedly fall un­der the Censure of a Tortious Ʋsage (having neither the Statute, Law of the Land, nor Reason, the Ground of the Law to war­rant or justifie it) which Andrew Horn, a Writer of the Law, in the Reign of E. 1. accounts no more of, then those of Thieves, whose Ʋsages are to Rob and Steal, Mirror Justice cap. 5. sect. 1.

And that we may as aptly suit a Case to our Libellers, as he would have that of Wagstaffs to answer us, Take a Resolve of a Court not inferior to the Consideratum est of the K— Bench, [Page 60] whose Reason and Authority was never subjected to the Opinion of three or four interested persons, as S.S. by his bold Pamphlet would have it: I mean the Parliament of the Commons of England, who upon Justice K — fining of Wagstaffs Iury Resolved, That he had used an Arbitrary and Illegal Power, which was of dangerous consequence to the Lives and Liberties of the People of England,Note: 11 Dec. 1670. Lib. asserted, pag. 60, 61. and tended to the introducing of an Arbitray Government.

And that the Presedents and Practice of Fining and Imprisoning Juries for Verdicts, is illegal.

Hence we may observe, that (Illo die) Englands Fountain of Justice was clear and wholesom, although the Rivolets or lesser Streams might be troubled and corrupted.

Therefore it's worthy our observation what Cook, that Master of Reason (directing himself to the sobordinate Courts or Seats of Justice said, Quod fatius est petere fontes, quam sectare rivulos.Note: Cook 4 Institu. Epilogue. (adding) That they should assured­ly prosper and flourish in the distribution of Justice, if they derived all their Power and Strength from their proper Roots: Advising them, Not to fear to do Right to all, and to deliver their Opinions justly according to the Laws.

This wholsom Advice, had it been but timely received by J.K. might have prevented that Pre­sedent of Oppression, Note: Wagstaffs Case 17. Ca▪ 2. quoted by our Author, which rash and unadvised Sentence of his the Parlia­ment took occasion so to rebuke, though S.S &c. to commend and immitate.

The Auguments and Reasons against Arbitrary Fining of Iurors respect a two fold Interest, viz. The Freedom of Jurors in parti­cular, and the Freedom of the People of England in general, who are equally hurt and wounded by the consequence of such tortious Proceedings.

1. First, Its unreasonable severity, that a Iuror should be en­for [...]ed to appear (Nolens aut Volens) at Assizes or Sessions of Peace, and there to be sworn. Well and truly to try, and true deli­verance [Page 61] make, between &c. according to evidence; and when he has conscientiously performed his Duty, (for which he receives no Reward) to be Fined at the Will of a Mercenary Iustice.

2. Secondly, If a Court has Power Arbitrarily to Fine a Jury, that give not in a Verdict according to their sence of this or that Fact in Issue, it must be because the Bench is presumed to have a fuller or▪ nearer understanding of the matter in issue, then the Jurors can, which is clearly otherwise in the sence of the Law; and appears in that the Iurors Summons is for persons (Per quos rei veritas melius scire poterit) by whom the Truth of the matter may be better known.

3. Thirdly, If the Integrity and Honesty of persons judging are to be esteemed of weight, to evidence the Equallity of the Judge­ment given; then, surely twelve Honest Men of the Neighbour­hood, where the Offence (if any) was committed, are the most proper Judges; since that twelve men may neither be so easily corrupted as one single person, nor their Judgment of such fact (twelve men agreeing in one) so likely to be erroneous, as the single apprehension of one.

4. Fourthly, If Satisfaction is to be made to a Party grieved, how can it be done more fully and equally then at the choice of the per­son offended. The People or Neighbourhood, who are pretended to be wronged or injured, are called to be judges, to redress their own Grievances; and surely that Satisfaction they measure out to themselves shall be judged Correspondent to their sustained Da­mages.

5. Fifthly, If our Predecessors had thought that the Arbitrary Determination of a Bench of Iustice, had been as equal a Iudg­ment, as that of our Peers; surely in vain did they exspend so much Blood for the reprizing the latter, and exterpating the former, Cook 2 Inst. prefact.

6. Sixthly, If a Bench, or single Justice, Recorder, Bailiff &c. shall have power to fine and imprison a Jury of twelve men, until [Page 62] they gratifie their Wills and Pleasures in their Verdicts, which of our Lives and Liberties can be secured against the Lusts of such petty Prerogatives, when the Courts Discretion, not the Law of England (our Birthright) shall be the Standard to measure out every mans Desert and Portion. Vide Cook 4 Inst. fol. 42.

We might in this sort much more enlarge to evince of how evil consequence these Arbitrary Practices are, and will be to the English constitution of Government. But I have here used the more of Brevity, in as much as this Case needs no greater, or further Argument to enforce it into any mans Understanding, then his being an English-Man, and so Born Free, and not a Slave.

But altogether to omit our Stablished and Fundamental Laws would be as blame worthy, as tediously to enlarge upon them. Therefore I shall from them, and some Maximes of the Law of England further prove the Unreasonableness and Unjustness of such Arbitrary Proceedings upon and against Juries.

1. First, Such Proceedings are absolutely against the Great Charter of Liberties,Note: C [...]. 2. Inst. 28. as cap. 14. No Free-man to have Amercements assessed upon him, but by Good and Honest Men of the Vicinage. As also cap. 29. No Freeman to be Condemned without the lawful Judgment of his Peers. Note: 2 Institut. 48. Which two Chapters by Reason and Ar­guments (in that Discourse of Liberty Asserted at the Tryal of Wil. Penn and Wil. Mead) are by that Author ex­pounded, and applied to this present Case, as the Reader may find at large, pag. 46, 47, and 48. of that Treatise.

2. Secondly, Such Arbitrary Judgements are against the Statute of 25 E. 1. cap. 1. which saith, ‘That Justices, Sheriffs, Mayors, and other Ministers, which under us have the Laws of our Land to guide, shall allow the said Charters to be pleaded before them in all their Points.’ This is a Clause (says Cook) Worthy to be written in Letters [...] Gold, that the Laws are to be the Judges Guides, and therefore not the Judges to guide the Law by their Arbitrary Glosses, which never yet misguided any, that truly followed them. [...] Cook 2 Inst.

[Page 63]Now to Fine and Imprison Jurors for their Verdicts, which by the Laws of England they are to give freely, is waving the Rules of Law, and embracing their own Dis­cretion for a Guide in giving of Judgments.Note: Stat. 25. E. 1. cap. 2. Notwithstanding it's expresly Enacted, That if any Judgement be given contrary to the Point of the Great Charter (which was declaratory of the Common Law) by the Justices, Note: Cook 2 Instit. prefact. or other the Kings Ministers, it should be Ʋndone, and holden for Nought.

Thirdly, By the Statute of Westminst. 1. Anno 3 E. 1. it's thus Enacted,Note: Co▪ 2 Inst. 161. Rex vult & precipit quod Ju­stitia singulis tam— quam— nulla habita Personarum ratione, That Justice shall be done to all without re­spect of Persons.

This (says Cook) is an antient Maxime of the Ccmmon Law, repeated and affirmed amongst the Law, of King Edgar. And Fleta (says that Author) reciteth this Fundamen­tal Law in few words, Note: Lib. 1. cap. 29. Quod Communis Justitia singulis pariter exhibeatur; That Common Justice be afforded to all.

If Jurors then be Freemen of England, I know not wherefore they should be denied that common right (in case they offend the Law) of Trial by their Peers; and have a Judgment passed upon them against this Common and Fundamental Law, which is com­manded by the express words of the Statute, Inviolabiliter Obser­vanri, be to Inviolably Observed; that Peace may be kept in this Land. Cook 2 Inst. 161.

4. Fourthly, Cook in his 2d Inst. fol. 689. affirms that, Ratio Legis est Anima Legis, The Reason of the Law is the Soul of the Law; and therefore says he, Quaecunque intra Rationem Legis in­veniuntur, intra ipsam Legem judicantur, Whatsoever shall be found to be within the Reason of the Law shall be adjudged to be with­in the Law.

Had the Law of England presumed, That a Mayor, Justice, Bailiff, Sheriff &c. had been more knowing, and so more pro­per [Page 94] per Judges, who might give a better and more equal Determina­tion (of such Facts, which for decision came before them) then a Jury of twelve men could, or would do: Surely the Law would then have left all Controversies to their sole Arbitrary De­termination; and never have required and commanded Tryals by Jurors, which are not only chargeable to the Iury-men (Free-holders of this Nation) by reason of their Attendance and Ex­pence at Assizes and Sessions, but also dangerous, and hazardous to perform, and do their Duty there.

But according to that Maxime, Lex intendit vici­num vicini facta scire, Note: Cook 1 Inst. 78. The Law presumes that each man best knows his Neighbours Actions: Therefore the most proper Judge, whether to condemn his Neigh­bour as guilty, or to acquit him as innocent. So we must either lose our Reason, or conclude it Illegal and Irrational, that Justices whom the Law (quo ad hoc) concludes Ignorant, should judge or condemn Jurors (for Ignorance) whom the Law (quo ad hoc) concludes more knowing then themselves.

5. Fifthly, the fifth Reason and Argument to evince the Illegality of such Arbitrary Proceedings, may be drawn from that Maxime of Law, more then once used by the learned Cook, viz. Lex est tutissima Cassis, Note: 2 Inst 56. and 526. The Law is the surest Sactua­ry that a man can take, and the strongest Fortress to protect the Weakest: Yea (saith that Author) Sub clipeo Legis nemo decip [...]tur, It fails none that put their trust in it. We have no reason to believe, that that Author put an Encomium upon the Laws of England (we mean the Fundamental Laws, the Charters of Liberties, of which he then treated) beyond their real Worth and Value: But must rather conclude, that such Arbi­trary Proccedings, which leave the Freemen of England void of De­fence, and Remediless of Relief, are not according to the Rules and M [...]xims of Law, but clearly otherwise.

And th [...]t the Fining and Imprisoning of Jurors are such; may further app [...]ar in these Particulars.

First, In that the Jurors are condemned without a Tryal, [Page 65] whether they have done their Duty or not; that is, whether they have found with or against their Evidence &c.

2. Secondly, In that the Iudgement against them (be it Vitious or Erroneous, either in respect of the irregularity of the Pro­ceedings or nullity of the Fact charged upon them) cannot be examin'd or revers'd by Writ of Error.

3. Thirdly, In that no such Superiour Court can receive or hear their Appeal, as upon Indictments, and all other Proceedings by due course of Law they might.

Manifesting that such Arbitrary Proceedings against Jurors are far more severe and hard, then any Convictions of Traitors, Thieves, and Murderers, (who are apprehended (Flagranti De­licto) and tryed by due Course of Law.

And since they are so unreasonable that they allow not a Iury of twelve (Boni & Legales Homines) Good and Lawfull Men, nei­ther liberty of defence before Iudgment, nor an after Tryal or Examination of the Fact for which they were condemned, we must necessarily conclude them Illegal and Irrational, so null and void, according to that known Maxime,Note: Co. 2 Inst. 11. Cessante ratione Legis cessat ipsa Lex: And leave them to that just Censure of the Parliament of the Com­mons of England, Note: Votes Par. Ang. 11. Dec. 1667. THAT THEY WERE INNOVATIONS IN THE TRYALS OF MEN FOR THEIR LIVES AND LIBERTIES.

S.S. his 2d, 3d, and 4th Remarks Examined.

(Saith S.S.) If it be objected, That in the present Case, being an Indictment for a Trespass, an Attaint doth lie, and therefore ought to be punished in Attaint. Which he thus himself answers, Brook, Title Attaint 130. saith, Et sic admitti­tur, quod si le Roy fuit merement. Party, Attaint negist. Where the King is sole Party Attaint doth not lie: In our present Case, [Page 66] the King is sole party, and therefore by the old Law no Attaint doth lie.

In the answering of his own Objection the Author has taken up no less then four or [...]ve Pages of his Discourse; and the whole of his second, third, and fourth Remarks, in quoting nine or ten Book-Cases and Statutes, to prove his Assertion, that no Attaint lies where the King is Party; Ending his Libel thus— ‘From these four Remarks I conclude Nothing, but leave the Determination of this important Affair to the honora­ble Sages of our Law; and Pray, that in this, and in all other Businesses of Concernment, that God (the Great Iudge of Hea­ven and Earth) would guide and direct them.’

Answ. 1st The Righteous God (whom this Libeller impre­cates) has declared. That the Prayers of the Wicked are an Abomi­nation to him, Prov. 15.9. and 28.9.

2d The Frivolousness and Impertinentness of this Ribaldry to the Controversie in hand, will appear to the meanest Capacity, that will take the pains to compare it, to the Libellers own Text, viz. The fining of that Jury that gave two Contrary Verdicts Justified.

3d The King being Party, so no attaint lies (the matter of these three last Remarks) is so far from being an Objection, to be offered by the Friends of those oppressed Iurors, that they not only grant to him, that no attaint lies against such Iurors, but that it is horrid Injustice and Oppression to punish them by that, or any other way; which we shall clear briefly in these Par­ticulars.

1. First, It might suffice any rational man, That Iurors, betwixt the King and Prisoners, ought not thus (by Arbitrary Fines, or other Means) to have punishment inflicted upon them, in as much as the Ancient Common Law of England is so far from di­recting of Pai [...]es, that it declares, That all Restraints of Jurors are Abusions of the Law: Which we have from Andrew Horn, a learned Writer of the Law in the time of Ed. 1. who amongst [Page 67] the great abuses of the Common Law (for some of which King Alfred executed several of his cor­rupt Judges) sets down this,Note: Title Abusions of the Common Law; cap. 5. sect. 1. viz. It is Abuse to compel Jurors to say that which they know not, by di­stress of Fine and Imprisonment, after their Verdict. And that this is the Statute Law to this day may appear.

2d, In that the Grand Councels of England in Parliament have no less then Twenty several times,Note: Vide Poltons sta­tutes, Title At­taint. given their Judgments about the false or vitious Verdicts of Jurors; Enacting twenty one Statutes for the correcting and punishing of such Defaults. And doubtless, (they having been so often near the Point) had the Law of England, and Right and Liberty of its People, admitted of such Punishments, as the Adversaries of both at this day put in practice, they would have let us under­stood it, and not suffer the Law so many Ages to be (Vagum & incognitum) But those Councels making no such Breach upon our Fundamental Laws, Rights, and Liberties; and this our present Parliament, by their Resolves, confirming the same, we may and must aver the contrary procedures, Innovations, so illegal and opres­sive. But to conclude.

3d Lex semper intendit quod convenit Rationi, Note: 1 Inst. sect. 103 The Law (says Cook) alwayes intends that which is agreeable to Reason. And Reason will with ease reconcile; wherefore the Law has not prescribed nor directed a Punishment for Jurors, who give a Verdict according to their Consciences, though con­trary to the sence of a Court or Bench of Iustices in Causes where the King is Party, as for Fellony, Trespass, &c. viz. As our English Government is now stablished (Potestas Regia est facere justitiam) It's regal power to do Iu­stice.Note: Co. 2 In. 375. And therefore all Indictments are prosecuted in the name of the King, although the Fellony, Trespass &c. was committed upon the People, who really received the Tort and Wrong; yet because the King has undertaken, for the Safety, Defence, and Protection of his Subjects, the Trespass &c. is said [Page 68] to be done to him: Yet Experience and Reason tells us, that the People of England are not therefore the less interested in, nor will be the less careful of the Security of their Persons and Estates, but do and will use their uttermost endeavour to defend the first from Violence, preserve the second from Ruin. So 1st the (Boni & Legales Homines) or Jurors impannelled to do Iustice upon such Fellons &c. being Free-born English-men, and as neer­ly interested and concerned in the Punishment of publick Offen­dors, as any, who are said to Prosecute. And 2dly, The Law presuming they would be no more Treacherous to their own Peace and Safety, then the King faithful to preserve them, thought good to lay no other Obligation or Engagement upon Jurors in such Cases, but the consideration of their own Weal, Peace, and Safety; which many hundred years, has by expe­rience been found sufficient,Note: Stat. 28 E. 1. Till Justices on the Benches and Seats of Judicature turned Informers and Prosecutors,Note: Vide Cook 2 Inst. 178, 179. and instead of not knowing per­sons in Judgment, appeared (contrary to their Oaths) as Counsel for the King, and Prosecutors and Executioners upon the Prisoners.

This I shall take the Liberty to Remark upon S.S. the Writer of that Scandalous Libel, that however he would recommend him­self to the King and Country, as a Man of Reputation and Truth, or at least to the deserving, the estimation of Learning and Ingenuity; this Work of his has given them an opertunity to take other measures of his Deserts, who has in this one Section of his Libel, not only manifested meer Falshood in his Charge, but also Ignorance in his Proofs.

First, His Falshood appears, in calumniating the Jurors with meer Untruths, and that by his own shewing.

Secondly, His Ignorance, in that he has not in the least co­lourably justified his Assertions, or those Practices of his Patrons (whom he appears for) against the Jurors. Yea, I may say that his Folly has so accompanied his Knavery, that he needs no other Character then his own Work in Print.

And whether he has Reason to assume that Title he takes to himself in the Front of his Piece, viz. To be a Friend to Justice [Page 69] and Courts of Justice. I submit to those of the Long-Robe, he allarums to look to themselves, and to the juditious Reader, that will weigh his Discouse; For my own part, I am not in the least jealous that he is any such Person: But if this Author would fa­vour us with the knowledge of his name, then Justice and its Courts might express their Gratitude, for his seasonable Vindi­cation of them; and the Mayor, Recorder's &c. Candor and In­tegrity in their juditial Proceedings, at the Old-Baily, against the Jury and Prisoners.

Less then this I could not say, by reason of those false Asper­tions that this Libeller has cast upon my Friends the Jurors; to enlarge I shall forbear, inasmuch as the Author has closed his Discourse with pretence to leave the important affair to the Judges determination, whose Judgments I desire may, and I hope will be measured by the streight Metwand of the fundamental Laws of England, and not by the crooked Line of Discretion, for say, the wisest of Men, and noblest of Princes,Note: Co. 2 Just. Qui derelinqunt legem, laudant improbos; at qui ob­servant legem, miscent praelia cum illis.

I had no other end in this short Discouse, but to vindicate Truth and Justice from Falshood and Violence; so my earnest Zeal is, that the first may ever stand over the heads of their Opposers and Oppressors.

T. Rudyard.


TO Answer the Libellers Challenge, and defend the Author of the Tryal &c. in reference to S.S.S. it may not be impertinently observ'd, that if he will please to enquire of one John Barnes of Hornsey, whether the late Mayor was not a Commissioner for setling the late Powers Militia, and so brisk and sharp a Reflecter upon those that went under the notion of Cavaliers, above the rest of the Committee, as to incur the re­buke of his Brother-Commissioners; we hear that he may re­ceive very ample satisfaction, if it may be any to be found in a mistake of what he so confidently ventur'd to assert.

Nor is it less worthy of notice, that upon enquiry made of Dr Whitchcock, he could not but acknowledge, that S. Sterling was so far from deserting the University, for want of confor­mity to the Scotish Covenant, that it never was tender'd to any of that Colledge.

Which is not remarkt out of Prejudice to the Mayor, but love to the Truth, and a desire to manifest his libellous Apollogist, who rather then his defensive Flatteries should fail his Diana, or his injust Slanders miss us, resolves to break through all the bonds of Truth, Law, and Religion. Not that we would render it so crimi­nal to serve the Nation under both Govenments, as (having served both) to persecute either.

But we will end the whole with this solemn Declaro', and protest,

First, That we are Free-born English-men, and esteem our selves undoubted Heirs of our Countries Liberties, not to be dis-inherited up­on any religious Difference, it being no Clause or Proviso in our first Civil Constitution, or Fore-fathers last Will and Testament.

[Page 71]Secondly, That we have been deprived of our dear Liberty and Property, and that meerly for Worshipping the God that made Us; against all Law, Reason, and Scripture (particularly at the Old-Bailey.)

Thirdly, That notwithstanding such daily provocations, we do as heartily forgive, as we are maliciously persecuted; (bearing no ill-will to the persons, of any) The Title and Tenure of our holy Gospel being Glory to God on High, on Earth Peace, and Good-will towards all men.

And we could desire of God (if it might please him) to open their Eyes, and affect their Hearts with a right sence of things, that they might understand how much more it would be their true Interest to rebuke Vice, then punish Opinion, and that in themselves first: So would Oppression cease, the Spring-Tides of Intemperance fall; & Mercy, Truth, Justice and Peace flow over all the Banks of Animosity, Self-in­terest Revenge; to the once more refreshing of our Weary, Dry and Parched Country, with the pleasant Streams of thorow Reformation.

W. Penn.
Courteous Reader,

THou art desired to place the numerous Errors of this Discourse to the account of difficulty in Printing any thing that comes not out with an IMPRIMATUR in the front of it: But as we can't fly to the Hills, to hide us; so will it be esteem'd civility in thee to excuse the Authors from the Mistakes; be they Points, Letters, Syllables, or whole Words. A short Collection follows.

 14commandedthey commanded
4412it was thethey were
503out-striptout, stript
54lastthatthat it
 28it appearshe pretends
 33ProceedingsProceedings as appears th [...]s.

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