From Magna Carta on Trial to the Holy Experiment

“There may be room there, though not here for such an holy experiment.” William Penn (1644-1718) wrote these words to a friend in America before he set sail across the Atlantic to found a colony in the New World. The holy experiment he spoke about was a plan to establish a new polity founded on the principles of freedom of conscience, freedom of worship, respect for life and property and peaceful coexistence with all neighboring peoples. Was this a revolutionary’s dream?

In fact, Penn found these principles to be the natural inheritance of the English people, a tradition of rights safeguarded by centuries of charters and statutes that were designed specifically to guarantee the people’s freedom from any arbitrary exercise of power. For Penn, the most important of these rights was the one for which evidence in the tradition was weakest: the freedom to worship according to one’s conscience. And yet, the question of whether any specific religious practice could legitimately be suppressed depended on whether such a law could be constructed without collaterally violating the fundamental liberties of an Englishman. When Penn was arrested for preaching his Quaker faith in public – an action made illegal by the Conventicle Act of 1664 (16 Charles II c. 4) which forbade assembling in groups of more than five people for religious activities not coordinated by the Church of England – he saw the arrest as an abridgement of his rights under Magna Carta.

The trial following his arrest was an experience that helped to propel Penn into a life of political and philosophical leadership in the colony he founded in America, Pennsylvania. Later in his life, Magna Carta would still exert a strong influence over his political outlook; language and content drawn from Magna Carta can be found in the written constitutions that Penn drafted both for the colony of West New Jersey, Fundamentals of West New Jersey (1676), and for Pennsylvania, Frame of Government of Pennsylvania (1682). Penn would also produce the first edition of Magna Carta to be printed in the New World, The excellent priviledge of liberty and property (Philadelphia: William Bradford, 1687), to which he appended a commentary that made modern sense of the medieval charter.

Much of Penn’s later fascination with the tradition of Magna Carta is evident in the defense he presented at his trial in 1670. He saw the political order under which he lived as unstable and descending into tyranny. A remark made by the Chief Justice of the King’s Bench in 1667 to the effect that Magna Carta was no longer relevant made many question whether the ancient liberties would be respected by the courts. Penn’s performance at trial was perverse, witty, somewhat paranoid, fanatical and marvelous – a picture of a man consumed by principle.

A record of the trial can be found in Penn’s own publication, The peoples ancient and just liberties asserted, in the tryal of William Penn, and William Mead, at the sessions held at the Old-Baily in London, the first, third, fourth and fifth of Sept. 70. against the most arbitrary procedure of that court. (London: 1670) or in Howell’s State Trials. Forgive me this longish quotation (from here) in which we see a representative exchange between Penn and the Court’s Reporter:

Penn. I affirm I have broken no law, nor am I Guilty of the 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.

Rec. Upon the common-law.

Penn. Where is that common-law?

Rec. You must not think that I am able to run up so many years, and over so many adjudged 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 common, it should not be so hard to produce.

Rec. Sir, will you plead to your 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?

Rec. 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 shew me, and the people, the law you ground your indictment upon, I shall take it for granted your proceedings are merely arbitrary.

Obser. At this time several upon the Bench urged hard upon the Prisoner to bear him down.

Rec. 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.

Rec. You are an impertinent fellow, will you teach the court what law is? It is ‘Lex non scripta,’ that which many have studied 30 or 40 years to know, and would you have me to tell you in a moment?

Penn. Certainly, if the common law be so hard to be understood, it is 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: confirmed 9 Hen. 3, 29, 25 Edw. 1, 12 Ed. 3, 8 Coke Instit. 2 p, 56.

Rec. Sir, you are a troublesome fellow, and it is not for the honour of the court to suffer you to go on.

Penn. I have asked but one question, and you have not answered me ; though the rights and privileges of every Englishman be concerned in it.

Rec. If I should suffer you to ask questions till to-morrow morning, you would be never the wiser.

Penn. That is according as the answers are.

Rec. 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 me 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.

Rec. 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 any thing to night.

Mayor. Take him away, take him away, turn him into the bale-dock.

Penn. These are but so many vain exclamations; 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 of the jury (and my sole judges,) that if these ancient fundamental laws, which relate to liberty and property, (and are not limited to particular persuasions in matters of religion) must not be indispensably maintained and observed, who can say he hath 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.

Rec. Be silent there.

A complete transcript of the trial can be found here.

Magna Carta will celebrate its 800th birthday in 2015. Look for more news and blog posts on the heritage of English Liberties and Anglo-American Constitutionalism here on In Custodia Legis in the coming months.