Court of Chancery in that Province under the Proprietary Government. In so primitive a state of society there could hardly have existed any necessity for such a tribunal, and it is not improbable, that the Quaker settlers in their simplicity may not have been aware of the distinction between Courts of law and of equity. Law was probably administered in all their Courts upon very equitable principles. Its rigor was mitigated, and its severe rules relaxed, without the assistance of a Court of Chancery, Reference has been made to the Concessions of Berkley and Carteret. But the Concessions of the Proprietors of West Jersey were still more liberal. A more beautiful fabric of free government was never reared. It should be for ever embalmed in the memory of Jerseymen. "No man nor number of men upon earth,” such is its language, “have power or authority to rule over men's consciences in religious matters: therefore it is agreed and ordained, that no person or persons whatsoever within the said Province, shall at any time hereafter, in any way or upon any pretence whatsoever, be called in question, or in the least punished or hurt, either in person, privilege, or estate, for the sake of his opinion, judgment, faith, or worship, in matters of religion." Never was there a more comprehensive act of religious toleration; and never was it violated either in its letter or its spirit. That could be said of the Quakers of New Jersey, which could not be said of the Puritans of New England, "they had suffered persecution and had learned mercy.” No tax, custom, subsidy, assessment, or any other duty whatever, was, upon any color or pretence, how specious soever, to be imposed upon the inhabitants of the Province, without the consent and authority of the General Assembly. It would seem as if, with prophetic spirit, they had foreseen the very form in which tyranny would assail them. So dear to them was the right of trial by jury, that their language in relation to it, almost savors of refinement and borders upon excess. The Justices were to sit with the twelve men of the neighborhood, to assist them in matters of law, and to pronounce such judgment as they should receive from the twelve men, in whom alone, it was declared, the judgment resided; and in case of the neglect or refusal of the Justices to pronounce such judgment, then one of the twelve, by consent of the rest, was to pronounce their own judgment as the Justices should have done; language prompted, no doubt, by the bitter recollection of the way in which the rights of juries had so often been trampled upon in England by overbearing Judges.1 Members of Assembly were to be chosen by ballot; to receive instructions at 1 Penn himself, whose name is affixed to these Concessions, and who probably had a principal hand in framing them, must have had a vivid remembrance of his own trial, which had taken place but a few years before. He and William Mead were tried at the Old Bailey in 1760, upon an indictment for a tumultuous assembly. We have a full account of this trial, written by themselves, in Hargrave's edition of the State Trials, and some of the incidents connected with it may perhaps account for the extreme solicitude shown in the Concessions to guard against invasion the rights of Juries. It may not be amiss, therefore, to advert to a few of them, although it may swell this note to an inconvenient size. When the prisoners were brought to the Bar, one of the officers took their hats off. "Sirrah," exclaimed the Mayor, addressing the officer, "who bid you put off their hats? Put them on again." Their hats were accordingly put on again by the officer, and then the Recorder fined them forty marks apiece for contempt, in wearing their hats in the King's Court. When the Jury first returned into Court, they had not agreed upon their verdict; eight were for convicting and four for acquitting. The Court, after threatening and abusing them, sent them out again. They then returned with the following verdict: " Guilty of speaking in Grace church-street." Court-" Is that all ?" Foreman-" That is all I have in commission." Recorder-"You had as good say nothing." After another volley of abuse, they were again sent out, and soon returned again, finding Penn guilty of speaking or preaching in Gracechurch-street, and Mead not guilty. Thereupon the rage of the Mayor and Recorder knew no bounds. "You are a Foreman indeed," said the Mayor, addressing him; " I thought you had understood your place better." "We will have a verdict," said the Recorder, "by the help of God, or you shall starve for it." "You are Englishmen," said Penn, looking upon the Jury; "mind your privilege, give not away your right." The Jury were kept out all night, without meat, drink, fire, or any other accommodation; but when brought into Court next day, they still adhered to their verdict. The Mayor, addressing Bushel, one of the Jury, said, "You are a factious fellow, I'll take a course with you." Bushel-"I have done according to my conscience." Mayor-"That conscience of yours would cut my throat." Bushel-" No, my Lord, it never shall." Mayor" But I will cut yours as soon as I can." Penn-" I desire to ask the Recorder a question. Do you allow of the verdict given of William Mead?" Recorder" It cannot be a verdict, because you are indicted for a conspiracy, and one large from those who sent them; and to covenant and oblige themselves to be faithful to their constituents by indentures under their hand and seal. They were to receive for their services a shilling a day, that thereby they might be known to be the servants of the people. Courts were to be public and open, that all the inhabitants of the Province might freely come into them, that so justice might not be done in a corner. These Concessions were declared to be their common law, their great charter; they were to be being found guilty and not the other, it cannot be a verdict:" Penn-" If not guilty be not a verdict, you make of the Jury and magna charta a mere nose of wax." The Recorder said it would never be well with them till they had something like the Spanish Inquisition in England. At last, after being kept out two nights and a day, the Jury returned with a verdict of not guilty. Recorder, addressing the Jury" God keep my life out of your hands; but for this the Court fines you forty marks a man, and imprisonment till paid." Penn then demanded his liberty. Mayor-" No, you are in for your fines." Penn"Fine, for what?" Mayor-"For contempt of Court." Penn was proceeding to remonstrate against this, when the Recorder said, "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, since the Spanish Inquisition has so great a place in the Recorder's heart." The Jury, as well as the Prisoners, were then sent to Newgate for the non-payment of their fines. Bushel, however, one of the Jurors, sued out his writ of Habeas Corpus returnable to the Court of Common Pleas, and was discharged; Lord Chief Justice Vaughan, upon that occasion, delivering a most elaborate and masterly argument, in vindication of the right of a Jury to find a general verdict against the direction of the Court. «To Edward Bushel,” said Lord Erskine, in his speech in defence of the Dean of St. Asaph, "are we almost as much indebted as to Mr. Hampden, who brought the case of shipmoney before the Court of Exchequer."-Erskine's Speeches, II. 117. See Bushel's Case, Vaughan's Rep. p. 135-158. And read at the beginning and the dissolving of every General free Assembly; and they were also directed to be writ on fair tables, in every Hall of Justice in the Province, and read by the Magistrates in solemn manner four times every year in the presence of the people," it being intended and resolved, by the help of the Lord and these our Concessions, that every person inhabiting the said Province shall, as far as in us lies, be free from oppression and slavery."" Precious words! how should our hearts overflow with gratitude to God that now, one hundred and seventy years since this pious purpose was first announced, we live to see it realized. There is not to be found, in the whole history of our country, rich as it is in interesting scenes, an incident so beautiful, as the first settlement of West Jersey by the Quakers. "West New Jersey," says Bancroft, "would have been a fit home for a Fenelon." Nor were the settlers of West Jersey satisfied with the mere declaration of their rights and privi 'This was the first essay of Quaker legislation, and "entitles," says Grahame, "its authors to no mean share in the honor of planting civil and religious liberty in America.""There," said Penn and some of his colleagues, in allusion to these Con cessions, "we lay a foundation for after ages to understand their liberty as men and Christians, that they may not be brought in bondage, but by their own consent; for we put the power in the people."-See Letter to Richard Hartshorne, Smith's N. J., p. 80. |