[William Penn and William Mead were brought to trial for allegedly inciting a riot, when in reality what they had done was preach outside the locked doors of the Grace Church Street Meetinghouse.]
Penn: I affirm I have broken no law, nor am I guilty of indictment that is laid to my charge. And to the end the Bench, the jury, and myself, with these that hear us, may have a more direct understanding of this procedure, I desire you would let me know by what law it is you prosecute me, and upon what law you ground my indictment.
Recorder: Upon the common law.
Penn: Where is that common law?
Recorder: You must not think that I am able to run up so many years and over so many judged cases which we call common law to answer your curiosity.
Penn: This answer, I am sure, is very short of my question, for if it be be common, it should not be hard to produce.
Recorder: Sir, will you plead for you indictment?
Penn: Shall I plead to an indictment that hath no foundation in law?If it contain that law you say I have broken, why should you decline to produce that law, since it will be impossible for the jury to determine or agree to bring in their verdict who have not the law produced by which they should measure the truth of this indictment, and the guilt or contrary of my fact.
Recorder: You are a saucy fellow. Speak to the indictment.
Penn: I say it is my place to speak to matter of law. I am arraigned a prisoner; my liberty, which is next to life itself, is now concerned; you are many mouths and ears against me, and if I must not be allowed to make the best of my case, it is hard. I say again, unless you show me and the people the law you ground your indictment upon, I shall take it for granted your proceedings are merely arbitrary.
Recorder: The question is whether you are guilty of this indictment.
Penn: The question is not whether I am guilty of this indictment, but whether this indictment be legal. It is too general and imperfect an answer to say it is the common law, unless we knew both where and what it is. For where there is no law there is no transgression, and that law which is not in being is so far from being common that it is no law at all.
Recorder: You are an impertinent fellow. Will you teach the Court what law is? It's lex non scripta, that which many have studies thirty orforty years to know, and would you have me tell you in a moment?
Penn: Certainly if the common law be so hard to be understood, it's far from being very common; but if the Lord Coke in his Institutes be of any consideration, he tells us that common law is common right, and that common right is the Great Charter privileges...
Recorder: Sir, you are a troublesome fellow , and it is not for the honor of the Court to suffer you to go on.
Penn: I have asked but one question, and you have not answered me,though the rights and privileges of every Englishman be concerned in it.
Recorder: If I should suffer you to ask questions till tomorrow morning, you would be never the wiser.
Penn: That is according to what the answers are.
Recorder: Sir, we must not stand to hear you talk all night.
Penn: I design no affront to the Court, but to be heard in my just plea; and I must plainly tell you that if you will deny oyer of that law which you suggest I have broken, you do at once deny me an acknowledged right and evidence to the whole world your resolution to sacrifice the privileges of Englishmen to your sinister and arbitrary designs.
Recorder: Take him away. My Lord, if you take not some course with this pestilent fellow to stop his mouth, we shall not be able to do anything tonight.
Mayor: Take him away, take him away; turn him into the bail-dock.
Penn: These are but so many vain exclamation. Is this justice or true judgment? Must I therefore be taken away because I plead for the fundamental laws of England? However, this I leave upon your consciences, who are the jury and my sole judges, that if these ancient fundamental laws, which relate to liberty and property, are not limited to particular persuasions in matters of religion, must not indispensably maintained and observed, who can say he hath the right to the coat upon his back? Certainly our liberties are openly to be invaded, our wives to be ravished, our children slaved, our families ruined,and our estates led away in triumph by every sturdy beggar and malicious informer as their trophies, but our pretended forfeits for conscience' sake. The Lord of heaven and earth will be judge between us in this matter...
