or amerced, but by the judgment of his peers or jury? Since it exprefsly contradicts the fourteenth and twenty-ninth chapter of the great charter of England, which fays, No freeman ought to be amerced, but by the oath of good and lawful men of the vicinage.'

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

Penn. I can never urge the fundamental laws of England, but you cry, Take him away, take him away. But it is no wonder, fince the Spanish inquifition hath fo great a place in the recorder's heart. God Almighty, who is juft, will judge you for all these things.

Obfer. They haled the prifoners to the bale-dock, and from thence fent them to Newgate, for nonpayment of the fines; and fo were their jury.

AN

A N

APPENDIX,

BY WAY OF

DEFENCE for the PRISONERS;

OR,

What might have been offered against the IN-
DICTMENT, and illegal Proceedings of the
COURT thereon, had they not violently over-
ruled and stopped them.

U

Published in the Year 1670.

PON a fober difquifition into feveral parts of the indictment, we find it fo wretchedly defective, as if it were nothing else but a mere compofition of error, rather calculated to the malicious defigns of the judges, than to the leaft verity of fact committed by the prisoners.

To prove this, what we fay will be a main help to discover the arbitrary proceedings of the bench, in their frequent menaces to the jury: as if it were not fo much their business to try, as to condemn the prifoners; and that not fo much for any fact they had committed, as what the court would have fuggested to the jury to have been their fact.

Sect. 1. It is the conftant common law of England, That no man fhould be taken, imprisoned, amerced, diffeifed of his freehold, of his liberties,

1

or free customs, but by the judgment of his peers, which are vulgarly called a jury, from jurare, be• cause they are fworn to do right.'

Sect. 2. The only affiftance that is given the jury, in order to a verdict, is:

First, The evidence given of the fact committed by the person indicted.-Secondly, The knowledge of that law, act, or ftatute, the indictment is grounded upon, and which the prifoners are faid to have tranfgreffed.

Se&t. 3. We fhall neglect to mention here how much they were deprived of that just advantage, which the ancient, equal laws of England do allow; defigning it for a conclufion of the whole, and fhall only speak here to matter of fact and law.

Sect. 4. The evidence you have read in the trial; the utmost import of which is no more than this, That William Penn was fpeaking in Gracious-street, to an affembly of people, but they knew not what ' he said.' Which is fo great a contradiction, as he that runs may read it; for no man can fay another man preaches, and yet understand not what he saith. He may conjecture it, but that is a lame evidence in law. It might as well have been fworn, that he was fpeaking of law, phyfick, trade, or any other matter of civil government, Befides, there is no law against preaching what is truth, whether it be in the ftreet, or in any other place. Nor is it poffible that any man can truly fwear, that he preached fedition, heresy, &c. unless he fo heard him, that he could tell what he faid.

Sect. 5. The evidence farther faith, That W. Mead was there. But till being in Gracious-street be a fault, and hearing a man fpeak the witness knows not what, be contrary to law,' the whole evidence is ufelefs, and impertinent. But what they want of that, they endeavour to fupply with indictment; whofe parts we proceed to confider.

Exceptions against the indictment.

Sect. 6. It faith, That the prifoners ["were met upon the 15th day of Auguft, 1670."] whereas their own evidence affirms it to be upon the 14th day of Auguft, 1670.

Sect. 7. ["That they met with force and arms."] Which is fo great a lie, that the court had no better cover for it, than to tell the jury it was only a piece of form; urging, that the man tried for clipping of money this prefent feffions, had the fame words ufed in his indictment.

But that this anfwer is too fcanty, as well as it was too weak to prevail with the jury, we defire it may be confidered, that the fame words may be used more of course, and out of form, at one time, than at another. And though we grant they can have little force with any jury in a clipper's cafe, for mere clipping; yet they are words that give fo juft a ground of jealoufy, nay, that carry fo clear an evidence of illegality, where they are truly proved and affirmed of any meeting, as that they are the proper roots from whence do spring those branches which render an indictment terrible, and an affembly truly the terror of the people.

Sect. 8. ["Unlawful, and tumultuously to disturb "the peace."] Which is as true as what is faid before (that is, as falfe.) This will evidently appear to all that confider how lawful it is to affemble, with no other design than to worship God. And their calling a lawful affembly an unlawful one, no more makes it so, than to say light is darkness, black is white, concludes fo impudent a falfity true.

In short, because to worship God can never be a crime, no meeting, or affembly, defigning to worship God, can be unlawful. Such as go about to prove an unlawful affembly, muft prove these affemblers intent not to worship God: but that no man can do, because no man can know another man's intentions;

and

and therefore it is impoffible that any should prove fuch an affembly unlawful. That is properly an unlawful affembly, according to the definition of the law, when several perfons are met together with defign to use violence, and to do mifchief: but that Diffenters meet with no fuch intention, is manifeft to the whole world; therefore their affemblies are not unlawful. He that hath only right to be worshipped, who is GOD, hath only right to inftitute how he will be worshipped and fuch as worship him in that way they apprehend him to have inftituted, are fo far from being unlawful affemblers, that therein they do but exprefs their duty they owe to God.

["Tumultuoufly"] Imports as much as diforderly, or an affembly full of noife, buftle, and confufion, ufing force and violence to the injury of perfons, houfes, or grounds. But whether religious Diffenters, in their peaceable meetings, therein defiring and seeking nothing more than to exprefs that duty they owe to God Almighty, be guilty of a tumultuous action, or meeting, in the fenfe expreffed (and which is the very definition of the law) will be the question. Cer tainly, fuch as call these meetings tumultuous, as to break the peace, offer the greatest violence to common words that can well be imagined; for they may as rightly fay, fuch perfons meet adulterously, thiev ifhly, &c. as to affirm they meet tumultoufly, because they are as truly applicable. In fhort, fuch particulars as are required to prove such meetings in law, are wholly wanting.

Sect. 9. [" To the disturbance of the peace."]

If the difturbance of the peace be but matter of form with the reft, as is ufually pleaded; leave out this matter of form, and then fee what great matter will be left.

Certainly fuch affemblies as are not to the breach and disturbance of the peace, are far from being unlawful or tumultuary. But if the peace be broken by them, how comes it the evidence was fo fhort? We cannot believe it was in favour of the prifoners. This

may