Abstract
Political theorists can at times forget that the origins of political theory lie in the struggles of concrete political life. This paper focuses on one arena of political contestation: the collision between dissenters and their communities’ legal systems. It focuses on The Peoples Ancient and Just Liberties Asserted (1670), a purported transcript of the trial of William Penn and William Mead for disturbance of the peace. The trial plays an important role in the emergent principle of jury independence and a key role in Penn’s career as a political actor during the 1670s, culminating in his American colonizing enterprise. After a few remarks about the trial itself, the paper proceeds in two parts, each emphasizing an aspect of the text’s performative nature. First, akin to canonical works of the Anglo-American tradition, Peoples presents embedded principles: coherent and substantive visions of legitimate government, justified by reference to authoritative texts, arguments, and practices. But the defendants in Peoples also enact and embody political dissent in ways other than overt and explicit argumentation: Penn and Mead themselves appear as characters performing a politics of dissent. As a work of both political theory and political theater, Peoples offers insights into Deleuze’s notion of “dramatization,” and can lead us to a broader appreciation of the many different genres that constitute political theory.
I
Given political theorists’ longstanding attention to the exegesis of canonical texts and the framing of general principles, we can too easily forget that that the origins of such theorizing lie in the struggles of concrete political life. These struggles take many forms, some dramatic and highly public (revolutionary uprisings, mass movements, the legislative process) and others less visible but no less vital (the workplace, the family). This paper focuses on one such arena of contestation—the collision between religious and/or political dissenters and their societies’ legal-penal systems—which has produced many important works of political philosophy and rhetoric, from Socrates’s Apology and Crito to Martin Luther King’s Letter from Birmingham Jail, from Gramsci’s Prison Notebooks to a host of lesser-known but vividly compelling public confessions and scaffold speeches. 1 The heightened stakes of these interactions—with politically marginalized dissenters arrayed against the state’s large-scale organized violence—have often elicited searching considerations of legitimacy, authority, and the limits of dissent.
Along with this attention to the venues in which political theory is generated, the form in which such considerations are communicated reminds us that political theory always appears in many guises. Indeed, one of the most exciting developments in recent years has been the increasing attention to issues of rhetoric, narrative, and genre alongside of, and intertwined with, the substantive principles advanced by political thinkers. 2 Considering both the rhetorical and performative strategies on the one hand, and the substantive arguments on the other—and, even more importantly, the way that the two buttress and support each other—provides political theorists with new tools to understand the many ways in which the political has been articulated and communicated over time.
The two broad observations offered here—that the collision of dissent and legal prosecution is foundational to much political theory, and that political theory encompasses a wide array of genres—provide the building blocks of this paper’s consideration of The Peoples Ancient and Just Liberties Asserted, a purported transcript of the 1670 London trial of William Penn and his fellow Quaker William Mead for disturbing the peace. 3 The trial plays a key role in the emergent principle of jury independence through its connection with “Bushel’s case,” the 1671 decision that struck down fines levied on jurors for bringing in verdicts unpalatable to the bench. 4 It also entered the mythos of the maturing Quaker movement and played a key role in Penn’s emergence as a significant political actor during the 1670s, which in turn set the stage for his ambitious American colonizing enterprise a decade later.
The Penn-Mead trial initially presents a puzzle. On the one hand, the trial is commonly cited as among the most significant in the Anglo-American tradition. One of the editors of Penn’s papers calls it a “landmark case in the growth of freedom of speech and trial by jury in England”; his foremost biographer refers to the trial as “resulting . . . in the greater security and more firm establishment of civil liberty in England.” 5 Popular commentators have attended to it as well: Scott Throw claimed that it “probably did more than any other case to refine the trial tradition in England and the United States.” 6 And it is not merely Americans, who claim Penn as colonial founder—and, since 1984, as honorary citizen 7 —who claim such influence: the Royal Courts of Justice (UK) has in years past put on a one-man dramatization of the trial, and its website once claimed that the trial “established the independence of a jury to return a true verdict without fear of the consequences.” 8 On the other hand, many of the accounts claiming such significance for the trial admit that—dramatic though the defendants’ performance might have been, and important as Penn would later become—the significance of the case was due less to the two defendants than to Bushel’s suit and Vaughan’s vindication of jury independence, which came a year later. And as with any myth-making effort, the trial has also attracted naysayers, who claim that “an obstreperous and determined minority blocked the actions [of the jury] . . . [which] reached the verdict forced upon it by the perseverance of the four determined jurors.” 9
In order to see the ways in which a trial transcript might “be” political theory, we need a perspective that remains open to the communication of political content in a variety of ways, across a variety of genres. Such an approach has, in recent years, yielded important theoretical work on the jury trial in the Anglo-American tradition, particularly in contemporary settings, and it is a commonplace to acknowledge that trials represent performative, rule-bound interventions in political life, with implications for arenas far removed from the courtroom. 10 But my approach in this paper is slightly different; I seek not a “theory” of the trial, nor a justification of the system of trial and punishment, nor a specific justification of the American jury system. As will become clear, we do not possess unmediated access to the Penn-Mead trial, and in any case it predates many of the accepted modern conventions of courtroom practice.
Rather, this essay emphasizes the ways in which the trial transcript offers political theorists a window into the performance of politics and communicates the political in a variety of mutually interconnected ways. After a few remarks about the trial’s several contexts (section II), and some comments on the “transcript” itself as well as the rebuttal it provoked from London Mayor Sir Samuel Starling (section III), this essay proceeds in two parts, each of which focuses on a particular aspect of the performance presented by the text. First (section IV), I argue that Peoples presents embedded principles, which constitute a coherent and substantive vision of legitimate government, justified by reference to authoritative texts, historical practices, and other argumentative strategies. Of course, given the nature of the text, such principles appear in the mouths of characters in a legal drama, and are thus vivified in ways that shape their presentation. Second (section V), Peoples communicates political content through dramatic enactment, with characters embodying a politics of dissent. Here it is not so much what the two say, their explicit and principled political speech, but how they comport themselves and interact with the other participants in the court, and what those interactions show about deference and arbitrary power in the early modern world. (These two types of theorizing should not be understood as wholly separate but as mutually constitutive modes of political communication, though I discuss them in separate sections of the paper.) I also suggest, in section VI, that the performative aspect of Peoples offers a link to Deleuze’s notion of “dramatization,” which can open up new theoretical avenues of investigation into other, similarly scripted political texts. 11
The result, then, is a whole greater than, or at least substantially different than, the sum of its parts. Peoples is both a work of political theory and a piece of political theater; or rather, we might say that it offers political theory as political theater. It works on several different levels to present a politics of dissent against arbitrary authority, of clear written law against vague prosecutions, and of juries as defenders of popular liberties against power-hungry judges. While we have no reason to think that it is a “neutral” account of what happened in the Old Bailey in early September 1670, it does give voice to an ongoing political contest between dissent and orthodoxy, and helped mark Penn’s emergence as a new voice in the world of English Dissent.
II
Restoration religious politics make up a key part of the general context required to understand the issues at stake in the Penn-Mead trial. Quakers faced a difficult legal and political situation during the 1660s, as well as longstanding penal statutes that punished nonattendance at Anglican services. 12 But Penn’s entry into public life took place against a more particular set of conflicts and disputes. The trial sits directly in the midst of what Gary de Krey has called the “first Restoration crisis,” a “period of confrontation, throughout the country, between the defenders of conscience and many magistrates charged with the enforcement of religious policy” during the final years of the 1660s. 13 Tim Harris dates the first real sustained opposition to the Restoration regime to 1668, and Richard Ashcraft notes a “sharp and perceptible turn toward the political repression of religious dissent” in 1669 and 1670. 14 Anti-Dissenter sentiment was epitomized by Samuel Parker’s ferocious polemic A Discourse of Ecclesiastical Politie, a bitter, often ad hominem denunciation of those seeking toleration for conscientious dissenters. 15 Although historians continue to debate the timing of various “crises”—with Richard L. Greaves declaring the Restoration as “a time of recurring crises” in which “religion and authority were seen . . . as the keys to an orderly society”—few debate that 1668–1671 were years of significant political contention, seen as such by participants at the time. 16
Part of this sense of crisis after 1668 was occasioned by the impending expiration of the Conventicle Act, which forbade unauthorized religious gatherings. Although the Act technically remained in force until March 1669, many British dissenters had been enjoying “de facto religious freedom” for some time. 17 The question of what would take the place of the expiring Act occasioned intense debates about religious policy in Parliament in 1668 and 1669, as well as unrest and violence in the streets of London. As sites where those at odds with the established church met for worship and mutual support, “conventicles” were implicated in negotiations aiming at comprehension (fixing the parameters of Anglicanism so as to include Presbyterians and other, theologically orthodox, dissenters) and toleration or indulgence (removing penalties for those who could not or would not conform to the established church). But the Cavalier Parliament was in no mood to extend legal protections to religious nonconformists.
The King, for his part, was in dire financial need, and Andrew Marvell famously described the passage of the Second Conventicles Act as “the price of money.” 18 Insofar as the Act encouraged the (paid) testimony of informers and did away with jury trials for many accused “conventiclers,” it arguably created more conflict than it solved. Since successful prosecution required local authorities to bring cases to court, Dissenters engaged in concerted efforts to elect sympathetic magistrates who could slow (if not clog entirely) the wheels of justice. The “heart of the struggle against the new statute was fought in the London area”; Dissenters there openly defied the act with help from allies who flooded the capital city, flocked to illegal religious meetings, and assaulted those attempting to suppress Dissenters’ worship. 19 In Starling’s account of the trial, the constable reported that he had “endeavoured . . . to get at Mr. Penn, to pull him down, but I could not, the people kicking my watchman and myself on the shins.” 20
A pamphlet war over the Act’s legality ensued. That it violated the law of God (in restricting the preaching of the Gospel) and the law of the land (Magna Charta’s guarantee of jury trials) seemed apparent to Dissenters. 21 Both Penn and anonymous Quaker broadsides parsed the definition of conventicle offered in the law’s text, since the wording—which forbade attendance at “any . . . Meeting under colour or pretence of any Exercise of Religion in other manner than . . . the Church of England” 22 —gave Quakers an opportunity to claim that their meetings were not conventicles at all, since they met “without any such pretense, but in reality to worship and glorify God in our bodies, souls, and spirits.” 23 Their meetings were open, claimed Quakers, and as such were highly unlikely incubators of seditious conspiracies; thus the use of the Act against them was inappropriate, since “it ought not to be inflicted upon people who are really of tender consciences.” 24 Their critics, of course, attempted to link Quakers with Anabaptist fanatics, English revolutionaries, social levelers devoted to overturning all hierarchies, and even with Catholics. Quakers, said one critic, refuse to honor the king; “the best he can get from you, is thou and thee, as if he was your fellow.” 25
Finally, we come to the Penn-Mead trial itself, which sits within a context all its own. The early modern courtroom was a far cry from the twenty-first-century counterpart, and it lacked many modern “hallmarks” like the presumption of innocence, exclusion of hearsay evidence, guarantees of defense counsel, burden of proof on the prosecution, and the right to silence. 26 But when William Penn and William Mead entered the Old Bailey in September 1670, they entered into a legal system that had itself been developing and transforming. Judges and juries had vied for preeminence since at least Tudor times, and those debates continued down through the English Civil War years, with Leveller calls for legal reform and the empowerment of juries; John Jones’s pro-jury polemics of the 1650s elaborated John Lilburne’s earlier arguments and insisted that the jury system reached back to antiquity. 27
The Penn-Mead trial, then, took place against the backdrop of widespread prosecution of religious dissenters generally and of Quakers more specifically. Quakers faced a “bewildering array” of courts, agencies, officers, and magistrates (both civil and ecclesiastical) in early modern England, were subject to a broad array of legal proceedings, and had devised a number of strategies for responding to the prosecutions to which they found themselves subjected. 28 That these strategies yielded markedly mixed results did not dampen the Quaker enthusiasm for continued attempts; after all, they were “a people at war—the ‘Lamb’s war’ against the ‘Beast.’” 29 Quakers ultimately benefited as much from the moderation and leniency of individual magistrates as from their own efforts, though such efforts served an important role in the formation of the group’s collective identity in the face of numerous obstacles. 30 All these developments point to an important observation for understanding the Penn-Mead trial and its aftermath: “By the time Penn’s case came to trial,” Thomas Green writes, “the groundwork for his appeal to the jury had been thoroughly prepared.” 31
III
When William Penn returned to London in June 1670 after assisting with the management of his father’s estates in Ireland, he found (in addition to the unrest and ferment elaborated in the previous section) a much more immediate object of concern: the government had shuttered a commonly used Quaker meetinghouse, under the terms of the 1670 Conventicle Act. As a result, he and Mead began preaching in the street just outside—“we were by force of arms kept out of our lawful house, and met as near it in the street as their soldiers would give us leave” 32 —and on August 14, 1670, the two were arrested and charged with the common law offense of disturbing the peace (riot) and addressing a tumultuous assembly. 33 On September 1, they were brought to the Old Bailey in London for trial.
The Peoples Ancient and Just Liberties Asserted first appeared shortly after the conclusion of the trial, and went through nine printings in the last three months of 1670 (with additional printings in 1682, 1696, 1710, and 1725). Although Penn claimed not to have written it, Peoples is widely believed to be his account of the trial (or, at least, it is widely assumed that he had a significant hand in its composition). 34 Not surprisingly, its publication occasioned a sharp public retort from one of the main officers of the court, London Mayor Sir Samuel Starling. 35 And furthermore, and still less surprising, Starling’s Answer called forth yet another rejoinder from Penn, Truth Rescued from Imposture. 36 And to make things even more complicated, a similarly titled treatise (The Second Part of the Peoples ancient and just liberties, most likely written by Penn’s legal counsel and fellow Quaker Thomas Rudyard), which presented a broader look at Quaker prosecutions, appeared late in 1670. 37 In this essay, I shall focus primarily on Peoples and the political theory and theater it communicates, but will comment on Starling’s Answer and Penn’s Truth rescued where they illuminate the political, legal, and religious dynamics at play.
Peoples opens with a Preface decrying the conduct of the bench and defending liberty of conscience, and a list of the trial’s dramatis personae (Mayor of London, Court Recorder, alderman, sheriffs, defendants, witnesses, and jurors). The trial proper began on September 3, 1670, though not before a verbal dispute between the defendants and the mayor broke out over the removal of the defendants’ hats in the courtroom. Several witnesses then appear, recounting the events of August 14. During the proceedings, Penn and the Recorder dispute the nature of the common law upon which the indictment was grounded. Continuing to rebuke the Court, Penn is eventually removed to the bail-dock, an area outside the courtroom often used for holding prisoners awaiting trial. Mead, like Penn, continues to object to the proceedings, appealing to the jury and suffering the rebukes of the bench until he too is ejected. The jury is then instructed by the judge and sent to deliberate. They return with a verdict of “guilty of speaking in Gracious-street.” 38 The judge refuses to accept this, claiming it is no verdict, and sends the jury out again to reconsider. Despite repeated threats from the bench, and—according to the account in Peoples—despite being kept without food or even a chamber pot all night, the jury brings in identical verdicts three additional times. In the end, the jury finds Penn and Mead not guilty, whereon the court fines the jurors; Penn and Mead, though acquitted, are returned to jail on contempt charges stemming from their refusal to doff their hats to the bench. Thus ends Peoples’s account of the trial proper. An appendix follows, offering a series of criticisms of the indictment, as well as historical passages and authorities including the Great Charter, reconfirmations of the Great Charter, and an excerpt from Keyling’s Case of 1667. 39
Starling’s Answer was quick to follow. It not only attacked the subversive implications of Penn’s views on juries, justified the fining of jurors, defended the character of those in charge of the trial, and took issue with certain aspects of Peoples’s account of the trial: Starling also cast aspersions on the character of Penn’s father, Admiral Sir William Penn, a decorated naval commander. Penn’s response, Truth rescued from imposture, in turn took issue with Starling’s presentation of the trial, defended Admiral Penn’s reputation, and reiterated the younger Penn’s arguments about juries. At this point (mercifully) the exchange came to a halt, though Rudyard’s Second part continued to raise issues about juries and the common law.
Although the charge against them was not explicitly religious in nature, the court noted that the riot in question was associated with Penn preaching, 40 and Penn himself made persecution a central theme of his defense, attempting “to elevate a misdemeanor accusation into a critical dissection of the entire common law tradition and a case on which depended the lives, liberties, estates, and families of all Englishmen.” 41 The religiously charged nature of the trial was evident in Penn’s claim that the Court Recorder expressed admiration for the Spanish Inquisition; and in Penn’s vindication of Quakers’ right to meet for worship. 42 Starling, too, acknowledged that religion lay near the heart of the trial, referring to Peoples as “but the second part to his blasphemous treatise, called The Sandy Foundation Shaken” (Penn’s 1669 attack on the doctrine of the Trinity, which landed him in the Tower of London on a blasphemy charge), accusing the defendants of aiming for a “high court of justice of saints [who] shall judge the world,” and rebuking Mead by referring to “your brethren the Munsterians.” 43 In a rhetorical move commonly employed by antitolerationists, Starling connected religious heterodoxy with political subversion: “it’s no wonder, that [Penn], who could daringly blaspheme the Holy Trinity in [The Sandy Foundation], should not blush to villifie and contemn the King’s Court, and falsely scandalize and reproach the King’s justices, and revile all methods of law.” 44
I have referred to Peoples as a “trial transcript,” but we entirely lack a transcript of the trial in the sense that twenty-first-century audiences understand the term. 45 Its presentation of Penn and Mead, and their trial, is clearly a stylized and heroic construction, aimed at presenting the two as railroaded by a persecuting state-church system. Although in this paper I shall elaborate some of the more significant departures between Penn’s and Starling’s accounts of the trial, I do not claim that either “transcript” is “accurate”; rather, each one is doing political work, and we need to note carefully what that work is.
IV
I suggested in the opening section that Peoples offers two modes of performative political theorizing in its account of the Penn-Mead trial. The first of these, which I have called “embedded principles,” comes closest to political theory as conventionally understood: authors present arguments in favor of a particular position or principle and adduce evidence of various sorts (historical, logical, analytical). (For just two examples, from Penn’s contemporaries, see Locke’s Second Treatise, or Part I of Hobbes’s Leviathan.) Yet even here—for example, when Penn or Mead cites Coke’s Institutes—such principles appear in dramatic form, in the mouths of characters, and serve both to engage in exegesis or critical analysis and to establish Penn and Mead as informed, competent spokespersons for popular liberties and against the conduct of the bench. A few illustrations will clarify the nature of such embedded principles in Peoples.
Juries
Some of the most contentious exchanges in Peoples concern the roles of jurors and judges in the process of determining guilt and innocence. Much of this disputation goes to the longstanding legal question of whether juries are merely judges of fact (in this case, were Penn and Mead in fact preaching in Gracechurch Street?) or were they, in addition, properly judges of law as well (i.e., were the defendants actually inciting a riotous assembly and thus in violation of the law?). On this question, Peoples gives voice to a tradition of political and legal argument deeply committed to the idea that juries were to judge both law and fact. The work’s Preface refers to the jury as “proper judges of law and fact,” and during the trial the two defendants repeatedly described their jury as their “judges” or “sole judges.” Truth rescued insists that trial by jury is guaranteed by “the ancient law of the land, confirmed by thirty parliaments, [and] acknowledged by all lawyers” and that “juries are judges of law and fact.” 46
This distinction between judging law and judging fact is an important one, as the persecutory mechanisms in Restoration society worked through the penal system, and juries thus had the potential to mitigate (or, at the extremes, to nullify) prosecutions of religious or political dissenters. Throughout the 1660s and 1670s, the election of a Whig sheriff could threaten the government’s control over the judicial process in London; a grand jury selected by just such a sheriff refused to indict the Earl of Shaftesbury in late 1681, saving Locke’s patron from an unpleasant and dangerous trial for high treason.
Given the hostility of the bench in Peoples, the jury represented a potential ally for the defendants when identifying legal principles being trampled, intolerable conduct engaged in by the court, and fundamental law being threatened. Not only are juries part of the fabric of the ancient constitution, they are bona fide political actors in the courtroom. As such, Mead addresses the jury directly, pointing out inconsistencies in the witnesses’ testimony.
Jury, observe this evidence; He saith he heard him preach, and yet saith he doth not know what he said. . . . Jury, take notice, he swears now a clean contrary thing to what he swore before the Mayor, when we were committed: For now he swears that he saw me in Gracechurch Street, and yet swore before the Mayor when I was committed that he did not see me there.
47
When Mead professes his essential peacefulness, he directs it to “You men of the jury.”
48
And it is to the jury that Mead quotes the great English legal theorist Sir Edward Coke, in defining the charges for which they were ostensibly being tried:
You men of the jury, who are my judges, if the Recorder will not tell you what makes a riot, a rout, or an unlawful assembly, Coke, he that once they called the Lord Coke, tells us what makes a riot, a rout, and an unlawful assembly: a riot is when three, or more, are met together to beat a man, or to enter forcibly into another man’s land to cut down his grass, his wood, or break down his pales.
49
The performance here is twofold: to establish Coke as the authoritative source of English law, and also to establish Mead as an authoritative conduit and spokesperson for Coke’s views.
In an especially important passage at the trial’s conclusion, as the case was being sent to the jury, Penn—who had been ejected from the courtroom and was shouting in over a wall—cited Coke even more explicitly than had Mead (i.e., by volume and chapter). He
[a]ppeal[ed] to the jury, who are my judges, and this great assembly, whether the proceedings of the court are not most arbitrary, and void of all law, in offering to give the jury their charge in the absence of the prisoners: I say, it is directly opposite to, and destructive of the undoubted right of every English prisoner, as Cook in the 2. Inst. 29. on the chapter of Magna Charta speaks.
50
Several important political claims are being made in this passage. First, Penn seeks to collapse the distinction between juries and judges (“the jury, who are my judges”). In doing so, of course, Penn elevates juries to the supreme judicial function: if juries were judges, then judges might be useful as facilitators of the smooth functioning of courtrooms, but they were hardly indispensable elements of the judicial machinery. Second, Penn frames the jury as guardian of the law and rights of English prisoners, over and against the arbitrary proceedings of the bench. And finally, in making these first two arguments, Penn appeals to proof-texts acknowledged as authoritative throughout the legal system and among English elites more generally, including Coke’s Institutes and Magna Charta (more specifically, Coke’s commentary on Magna Charta). 51 Finally, in performative terms: Penn establishes himself, the defendant and target of state power, as an authority on legal issues both in the courtroom and for the reading public and the political nation.
Taken together, these claims—juries are judges, juries are guardians against arbitrary power, and juries are endorsed by longstanding and authoritative legal precedent—reflect what Lois Schwoerer has called “jury ideology”: “a commendatory view of the jury as an institution because it protects subjects and their rights, liberties, and laws from arbitrary and lawless government.” 52 This jury ideology, according to Schwoerer, has its roots in seventeenth-century interpretations of English legal history (especially in Coke, and the Leveller movement) and reached its fullest development after 1679. Shannon Stimson has pointed to the importance of juries in “develop[ing] a nascent ‘space’ for judgments within the political sphere that judges did not have or were not trusted to employ impartially against the state”; although her account of “the American revolution in the law” highlights the ways in which American juries departed from their English inheritance, she too notes the importance of the Penn-Mead trial as an important moment in this history of the jury in popular politics. 53 And more recently, Jason Frank has pointed to juries as one of a number of popular institutions that pushed the notion of “the people” to the center of political contestation in early modern England and America. 54
As further evidence of this jury ideology, Peoples rebukes the Court’s treatment of the jury. In Penn’s and Mead’s view, the jury acquitted itself well (no pun intended), several times pronouncing Penn “guilty of speaking in Gracechurch Street”—not the charge against him, and arguably not a crime at all—and acquitting Mead altogether. After the jury returned its verdict the second time, the court refused to accept it, prompting Penn to rail against the bench:
The agreement of twelve men is a verdict in law, and such a one being given by the jury, I require the Clerk of the Peace to record it, as he will answer it as his Peril: And if the jury bring in another verdict contrary to this, I affirm they are perjured men in law.
55
Finally, after having been sent back multiple times and commanded to reconsider their verdict, the jury declared both Penn and Mead not guilty. The court accepted the verdict, but promptly fined each juror. Penn found it “intolerable that my jury should be thus menaced; is this according to the Fundamental Law? . . . What hope is there of ever having justice done, when juries are threatened, and their verdicts rejected?” 56 The integrity of the jury system was at the heart of Penn’s and Mead’s arguments in court, and that integrity was threatened by overweening and intrusive judges and overly narrow notions of the jury’s legitimate purview. This defense of juries lay at the heart of earlier Leveller critiques of English law: as Thomas Green puts it, “the coercion of jurors meant more than the deprivation of the defendant’s right to trial by jury. Coercion of jurors also meant the loss by Englishmen of control over the law.” 57
Here, though, Starling’s response becomes instructive, and goes to the heart of Penn’s articulation of jury ideology. Addressing his fellow “gentlemen of the long robe,” Starling sketched a picture of where Penn’s and Mead’s privileging of the jury would lead the country:
If these learned reformers of religion shall likewise reform your laws and methods of proceedings . . . and make twelve jury-men, eleven of which it’s possible can neither write nor read, to be the sole judges both of law and fact; farewell then to your great acquisitions, your year-books will be out of date. . . . If the law be as this youngster would have it, viz. that the jury is both judge of law and fact, and that the Kings justices cannot fine for contempt of the court, nor correct the corruption or misdemeanor of jury-men, nor inform their ignorance, nor rectifie their mistakes . . . the justices will be but cyphers, and sit there only to be derided and villified by every saucy and impertinent fellow.
58
Starling takes special exception to Penn’s description of the jury as his “sole judges,” arguing that “by the fundamental laws all trials are to be by judge and jury” and pointing out that Coke himself allowed for trial by certificate in certain situations. 59 In Starling’s view, it is simply not the jury’s task to rule on matters of law, but to ascertain whether the evidence presented in court provides compelling evidence of the facts alleged. Starling also robustly defends the practice of fining jurors “that have given their verdict contrary to their evidence.” 60 Penn’s jury ideology threatens the fundamental law of England, as it misrepresents both Magna Charta and Coke. Since fundamental law is amenable to conflicting interpretations, these dueling interpretations of it are essentially insoluble; hence the importance, as we shall see in the next section, of dramatizing the clash of principles and presenting Penn, Mead, and their jury as heroic dissenters against arbitrary power.
The Critique of Common Law
Part of the reason that juries were so important was related to the suspicion evinced in Peoples about common law, or at least about the susceptibility of common law to abuse by politically motivated prosecutors. The common law, of course, was a deeply rooted element of British political and legal culture; Starling refers to it as “lex non scripta,” or unwritten law, growing organically out of English historical experience, and Coke’s Institutes was already recognized as a touchstone for understanding what common law might mean in particular situations. 61 But Penn finds common law as used in his case to be arbitrary and vague, unable to clearly specify his and Mead’s offenses. He does not take issue with the notion of common law per se (though the core elements of such a broader attack are certainly present in Peoples), but with the way it is used in his case. An extended excerpt will clarify the issues at stake:
. . . I desire you would let me know by what law it is you prosecute me and upon what law you ground my indictment.
Upon the common law.
Where is that common law?
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.
This answer . . . is very short of my question, for if it be common, it should not be so hard to produce.
Sir, will you plead to your indictment?
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 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?
You are a saucy fellow. Speak to the indictment.
I say, it is my place to speak to matter of law . . . 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.
(At this time several upon the bench urged hard upon the prisoner to bear him down.)
The question is whether you are guilty of this indictment?
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.
You are an impertinent fellow. Will you teach the court what law is? It’s lex non scripta, that which many have studied thirty or forty years to know, and would you have me to tell you in a moment?
Certainly if the common law be so hard to be understood, it’s far from being very common; but if the Lord Cook 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. III, c.29; 25 Edw. I, c.1; 2 Edw. III, c.8; Coke Inst. 56. 62
If the bench can not (or will not) define common law, Penn will define it for them. And he does so by referring to unquestioned proof-texts like Coke’s Institutes, the Great Charter, and its confirmation by subsequent Parliaments. He broadens the political audience as well, by demanding that the court “show me and the people the law you ground your indictment upon” (emphasis added). And just before his ejection from the courtroom, Penn highlights the danger of this vague use of (religiously nonspecific) common law to pursue religious dissenters:
[I]f 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. . . . [T]his 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 indispensibly 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.
63
The scholarly literature on the period often links the common law with notions of the “ancient constitution” so definitively laid out by J. G. A. Pocock, Glenn Burgess, and others. 64 But though Penn shared the Whig dedication to the ancient constitution—note his invocation of “ancient, fundamental laws” that preserve “our liberties”—Peoples adds a deep suspicion of common law as it was used against the defendants, and thus its potential as a tool of tyrannical and arbitrary power. Combine a vague standard like common law with the widespread persecuting impulses of the Restoration state-church regime, Peoples suggests, and one finds situations like that faced by Penn and Mead; to which the language of the ancient constitution and of “ancient” and fundamental law can offer a means for resistance and opposition. 65 The Court Recorder’s description of common law as unwritten and complex played into critics’ hands; John Lilburne had claimed in 1646 that “I think no man in the world fully and truly knows” the rules of common law, and Peoples implies the same sort of disbelief. 66
In his reply to Starling, Penn, building on the notion of common law as common reason, proclaims himself “well assured, that common reason criminates no assembly, peaceably met to worship God, without the least appearance of weapons offensive or defensive.” 67 His objections to vague invocations of common law echoed a broader set of Quaker confrontations with the legal system, in which defendants employed a variety of strategies, often insisting on written indictments spelling out precisely which laws they were supposed to have broken. 68 They embed such arguments in dramatic form, illustrating once again the close relationship between political theory and political theater in this text.
The foregoing discussion has established that there is an important aspect of Peoples that involves, on the surface at least, a fairly conventional approach to political theory, in which Penn and Mead present arguments in support of substantive political or legal principles: the primacy of juries as protectors of popular liberties, and a suspicion of common law as potentially dangerous in the hands of unscrupulous magistrates. In both cases of embedded principles explored in this section, Penn and Mead couch their critiques in terms of principles, precedents, and authoritative sources. But these principles do not appear in isolation, or abstraction: rather, they are presented, often in conflictual and contentious ways, in the mouths of characters in the courtroom drama. Thus, Penn and Mead are at the same time presenting themselves as authorities, as conduits for the authority of Coke. This first performative aspect of Peoples, then, builds on a familiar type of political theorizing, in which the theorist amasses arguments in support of principles. Where such principles remain implicit, on the other hand, even more hinges on the defendants’ successful performance; thus we turn to the second mode of performative politics in Peoples, in which Penn and Mead embody the politics of dissent.
V
As we have seen, political theory can take a new form when principles are inserted into the dramatic dialogue of a courtroom trial. Highlighting this aspect of the performative nature of Peoples provides a deeper appreciation for the ways in which the text appeals to the reading public (and political nation) in support of the rights of religious dissenters. But not all the drama in this text comes down to the point-counterpoint of quoting Coke or legal precedent. At other times, the text presents courtroom behaviors and exchanges less as arguments over principles and their authority, and more as dramatic confrontations, with Penn and Mead on the receiving end of arbitrary power, against which they repeatedly object in the name of popular liberties and liberty of conscience. The text accomplishes this goal by highlighting the defendants’ willingness to violate social conventions that offend their consciences, and their refusal to be cowed by verbal or physical abuse. In doing so, it emphasizes the embodied or enacted nature of Dissent. (Starling’s Answer, clearly, presents a different drama: the system of law and order under relentless attack from radicals bent on subverting the social order.) Thus Penn and Mead speak out for embedded principles and embody dissent as a lived category. If Judith Butler has famously characterized gender as a performative category, then we might take Peoples to be presenting religious dissent as another sort of performed identity. 69 (I return to this claim at the conclusion of the essay.)
Hats and Hat-Honor
Hat-honor was one of the hallmark gestures by which early modern individuals displayed proper deference to those above themselves in the social hierarchy and acknowledged sacred spaces or the royal presence. Friends’ objections to hat-honor, their refusal to remove their hats in the presence of their social “superiors,” was a well-known aspect of their attempt to upend conventions, and it was—along with the use of plain speech, silent worship, and a refusal to swear oaths—a practice they had embraced since their earliest days, nearly two decades before the Penn-Mead trial. 70 Not surprisingly, then, one of the first conflicts to take place in the courtroom revolved around “hat-honor.”
Oyez, etc.
Sirrah, who bid you put off their hats? Put on their hats again.
(Whereupon one of the officers, putting the prisoners’ hats upon their heads, pursuant to the order of the court, brought them to the bar.)
Do you know where you are?
Yes.
Do you know it is the King’s Court?
I know it to be a Court, and I suppose it to be the King’s Court.
Do you not know there is respect due to the Court?
Yes.
Why do you not pay it then?
I do so.
Why do you not put off your hat then?
Because I do not believe that to be any respect.
Well, the Court sets forty marks a piece upon your heads as a fine for your contempt of the Court.
I desire it might be observed, that we came into the Court with our hats off (that is, taken off) and if they have been put on since, it was by order from the Bench, and therefore not we but the Bench should be fined.
I have a question to ask the Recorder. Am I fined also?
Yes.
I desire the jury and all people to take notice of this injustice of the recorder, who spake not to me to pull off my hat, and yet hath he put a fine upon my head. O fear the Lord and dread His power, and yield to the guidance of his Holy Spirit, for He is not far from every one of you. 71
This exchange over hats bears closer examination when considering the politics of performance and the dramatic rendition of Dissent in Peoples; its importance to both Penn and Starling is evidenced by the fact that each offers a defense of his conduct in his respective account of the trial. According to Peoples, the defendants entered the Courts with their hats off—no active recalcitrance, only an attempt to quietly avoid a gesture they considered idolatrous—only to have them placed back on their heads in close proximity to the bar. In Truth rescued, Penn insists that the hats were removed by court officers (“I suppose in kindness” 72 ) and that its replacement on his head took place “within a very little space of the place in which we usually stood during the whole time of our trial.” 73 Starling, by contrast, claims that the replacement of the defendants’ hats took place outside the courtroom: “The prisoners in stubborn manner refusing to take their hats, they were put on again . . . before they came into the court.” 74 Starling’s Answer views the defendants’ actions as intentionally antagonistic, and added his own interpretation of their body language: “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 trial, so that the court and all the spectators looked upon them, as offering a great affront to the honor of His Majesties Court.” 75 Starling calls Penn’s account “a great falsehood”; Penn twice calls Starling’s a “lie.” 76
Why is this issue of location and timing so important? In each case, the defendants faced the bench with their hats on, but in Peoples’s account this gesture of disrespect was the result of an action of the bench (ginning up a conflict, in a sense, by replacing hats that had already been removed), whereas Starling reports it as an intentional act of disrespect on the part of the defendants. Only if their hats were reset upon their heads could the Court ascertain whether the defendants were showing proper respect by actively doffing them. In other words, the Court does not simply want the prisoners to face the bench with their heads bared, but insists on the defendants’ capping, their intentional and active acknowledgment of its social rank. Respect is wrapped up in the gesture itself, in the act of removing the hat; and it was this gesture against which Quakers always so vociferously objected. As John Walter puts it:
In a culture of obedience, where men were expected to bare their heads at the reading of a royal proclamation or the public reading of a royal missive, even at the mere mention of the King’s name, non-compliance might be an expression of political dissent. . . . A refusal to perform appropriate gestures became itself a weapon of protest.
77
Thus, it is not sufficient that Penn verbally affirm his respect for the Court (“I do [respect the Court, but] I do not believe [putting off the hat] to be any respect”); he must perform the appropriate gesture, and do so on demand, thus enacting his subordination to its superior authority. Penn’s refusal to gesture, then, is itself a gesture: or, we might say, he insists on making a disallowed gesture in place of the mandated gesture. In this refusal, Starling sees a recalcitrant and disrespectful troublemaker, one whose gestures he had already marked as “daring the court to a trial” and “offering a great affront to the honor of His Majesties Court.” 78
Insistence on the gesture, in fact, is part of the power wielded by the court. Again, Walter points to gesture’s symbolic importance:
Forms of domination based on the premise of the inherent and natural superiority claimed by elites were literally inscribed on the body. They depended on embodied rituals of deference in which routinized gestures of acknowledgement of superiority and acceptance of subordination played an important part.
79
As a penal institution, the court need not attempt to convince Penn of the error of his ways, nor offer him reasons for these signs of respect. Note how quickly the dialogue moves from Penn’s “I do not believe [putting off the hat] to be any respect” to “the Court sets forty marks . . . as a fine.” (At the trial’s conclusion, after the jury had acquitted both men, the bench ordered Penn and Mead held in prison for these fines.) The bench represents those who wield social power, who have the right to ask questions and expect to be answered (“Do you know where you are?” “Do you know it is the King’s Court?”), and to demand outward signs of submission and respect (“Do you not know there is respect due to the Court?” “Why do you not put off your hat then?”). The bench also represents those charged with the oversight of penal institutions, who can impose fines and penalties on individuals who refuse to display proper deference (“[T]he Court sets forty marks a piece upon your heads as a fine for your contempt of the Court”). Starling’s defense of the actions of the bench makes clear that, in the Mayor’s view, disrespect to the Court was akin to disrespecting the sovereign, and God himself.
To highlight the dramatic embodiment highlighted by this attention to gesture, we might contrast it with another way of taking issue with the convention of hat-honor. In his No Cross, No Crown, published a year before Peoples, Penn articulated a series of objections to hat-honor—no fewer than sixteen against hat-honor and honorific titles alone—and buttressed those arguments with testimonies from Scripture, church fathers, and Reformers. 80 In the fifteenth proposition of Robert Barclay’s Apology for the True Christian Divinity (1675), one of the classics of Quaker theology, Barclay presents a series of arguments justifying Quakers’ refusal to doff their hats as a sign of deference. Barclay demurs from those who would justify hat-honor by reference to the Hebrew Scriptures (the Christian Old Testament) and insists that such outward notions of subordination are due only to God. 81 Certainly the arguments posed by Penn and, later, Barclay, are cogent expressions of Quaker thinking; and they clearly broadcast the concrete justifications on which those positions are based. But the events portrayed in Peoples are of a different sort. Reading—and thus visualizing—Penn and Mead facing the wrath of the bench in their trial, on account of their refusal adequately to cap for the judge, involves (as Deleuze puts it) the replacement of “a logos with a ‘drama’ . . . [or] setting up the drama of this logos.” 82
Abuse and Confrontation
Hat-honor is a specific instance of Penn’s and Mead’s insubordination. More generally, Dissent is performed in Peoples through a variety of confrontational behaviors and interactions, including interruptions, courtroom ejections, and verbal and physical abuse. Many, but by no means all, of these confrontations involve the Court belittling the defendants, threatening them, or taking advantage of its monopoly on force to remove them physically from the courtroom. Such behaviors on the part of the court enable the defendants to play one of two roles: suffering victim, enduring persecution at the hands of overbearing magistrates, and at most, offering respectful objections to the court’s proceedings; or righteously indignant protester, responding harshly to the court’s violation of rights not just for their own sake but on behalf of the entire English commonwealth. In the above exchange about hat-honor, for example, the two defendants offer varying responses to the bench’s action: Penn, in a fairly understated reply, merely points out the illogical nature of their fines (the defendants had entered the court with their hats off, and thus could hardly be accused of disrespect), while it was left to Mead to rail against the injustice of the court’s actions.
Verbal abuse is part and parcel of the court’s interactions with the prisoners. In the above exchanges regarding common law (section IV), the bench repeatedly denounces Penn: “You are a saucy fellow,” the Recorder tells him, at other times calling him “impertinent,” “pestilent,” and “troublesome.” 83 (In his Answer, Starling refers to him as a “youngster,” a “colt,” and a “novice.” 84 ) “Be silent.” “Will you teach the court what law is?” For his part, Mead too is berated by the court, with the Mayor saying, “You deserve to have your tongue cut out.” 85 Mead insists on the rights of Englishmen, only to be told by the judge that he doesn’t deserve them.
These verbal confrontations constitute one type of attack: the implied or explicit threat of physical violence. The stakes are raised considerably—verbal abuse becomes physical—when Penn is forcibly ejected from the courtroom after the exchange regarding common law. He begins with patient sufferance, but concludes with reference to the court’s “sinister and arbitrary designs”:
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.
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 tonight.
Take him away, take him away . . . 86
Penn is commanded by the bench to be silent, but insists on his right to speak in his own defense. He is no longer peaceably claiming to “design no affront to the Court,” but rather drawing a clear connection between his and Mead’s case and the liberties of the nation. We saw in the previous section how Penn places his fate in the hands of his jury.
[I]f these ancient fundamental laws . . . must not be indispensibly 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 . . . .
Be silent there.
But rather than silence, Penn responds with a further objection in which he links his own case with that of many others across England.
I am not to be silent in a case wherein I am so much concerned, and not only myself, but many ten thousand families besides.
87
As a result of this outburst, Penn is confined to the bail-dock. He even attempts to cry out from this remote location while the jury is receiving its charge, claiming that he still has a dozen or so “material points” to make toward his defense (points that were appended to Peoples upon its publication) and objecting to the jury being given its charge in the absence of the prisoners. The scene displayed here—a defendant forcibly ejected from the courtroom for insisting on his rights; shouting his defense over the courtroom walls—seems less designed to advance particular principles of law or politics, or definitions of arbitrary power (though there certainly were such principles and definitions at stake) and more to evoke a visceral sense of sympathy with victims of injustice who are being denied basic rights. And it might have been working: John Phillips and Thomas Thompson, who express sympathy for the bench’s predicament in the face of Penn’s theatrics, acknowledge that “Howell and Starling, frustrated by Penn’s apparent determination not to address the matter at hand and equally upset by the favorable hearing Penn apparently obtained from some members of the jury, committed Penn to the bail-dock” (though they argue that the bail-dock was inside the courtroom.) 88
While Penn was out of the courtroom, his co-defendant kept up this dramatic confrontation. Mead addresses the jury directly, and restates Penn’s demand for the specific law that the two are charged with violating; as we saw earlier, he goes one step further, quoting Coke on the definition of a riot. He too was removed from the court and placed in the bail-dock. Peoples attempts to make one thing overwhelmingly clear about the performed world of Dissent: Dissenters refuse to be silenced by the threats (implied or actual) of powerful magistrates. Even when browbeaten by officers of the court, even when physically removed from the courtroom, Dissenters will continue to insist on their own rights and, by extension, the rights of all Englishmen. At times they patiently argue their points in reference to law and justice; at others they denounce persecuting magistrates in vitriolic terms. But in these scenes, the principles on which Dissenters object to the politico-religious establishment seem secondary to the powerful visual portrait Peoples paints, of courageous Dissenters standing in the path of arbitrary power.
Penn and Mead, however, are not the only characters in Peoples who find themselves on the receiving end of abuse and intimidation from the bench: the Court’s treatment of the jury is one of the most famous aspects of the trial. In this sense we are not, strictly speaking, dealing with the enactment or the performance of Dissent (since the religious affiliations of the jurors are unknown), but we can certainly look at the interactions between bench and jury as an example of the dramatic enactment of orthodoxy (which, of course, implies a counterperformance of Dissent). The court was so intent on convicting the defendants, as we saw above, that they instructed them how to vote:
You have heard what the indictment is. It is for preaching to the people, and drawing a tumultuous company after them. . . . [T]here are three or four witnesses that have proved this, that [Penn] did preach there, that Mr. Mead did allow of it. After this you have heard by substantial witnesses what is said against them. Now we are upon the matter of fact, which you are to keep to and observe, as what hath been fully sworn at your peril.
89
Judges instructing juries was not unusual in early modern English courtrooms; but the moral outrage that Peoples seeks to stoke comes about when the jury refuses to go along with the judge’s wishes. When the jury brings back its verdict—neither guilty nor not guilty, but rather “guilty of speaking in Gracechurch street”—the Court sends them back to deliberate again, saying that “you had as good say nothing.” 90 The badgering continues, and verbal abuse escalates to physical: “The Court swore several persons, to keep the jury all night, without meat, drink, fire, or any other accommodation; they had not so much as a chamber-pot, though desired,” claims Peoples, a charge that has entered the lore of the Penn-Mead trial even though it was flatly denied by Starling. 91 The whole scenario was repeated again, several times, the next day, when the jury “went up again, having received a fresh charge from the bench, if possible to extort an unjust verdict.” 92 At one point the jury attempts to disobey the court’s order to deliberate again, prompting the mayor to call in the sheriff, who cajoles the jury to return to their deliberations.
Individual jurors were threatened as well. The court told the jury’s foreman: “I thought you had understood your place better.” 93 Many threats focused on Bushel, who was called factious and impudent by the Court, accused of bewitching the jury, and whose throat the Mayor expressed a desire to cut. The Recorder accused him of insinuating himself on the jury so that he could make mischief, saying that “you deserve to be indicted more than any man that hath been brought to the bar this day.” 94 The lasting impression of the bench’s actions toward jury and defendants, as presented by Peoples, is one of an overweening arrogance, unreasonable coercion, and violation of fundamental law in the desperate pursuit of a conviction.
What both of these episodes—the confrontation over hats and the interactions between prisoners, juries, and bench—provide is a dramatic and visual presentation of Dissent as an embodied, enacted category. What did it mean to be a religious Dissenter in Restoration England? No doubt the category “Dissenter”—or, more particularly, in the case of Penn and Mead, “Quaker”—was constituted in large part by theological beliefs (here, an emphasis on the “inner Light”) and political-ecclesiastical objections to Restoration Anglicanism. 95 But Dissent was not simply a theological category: it was also a broader identity, a combination of beliefs, gestures, principles, narratives, and relationships, all enacted within communities and subcommunities, and existing in tension (if not outright opposition) with other communities and subcommunities. 96 Dissent was always oppositional—it is implied in the name, of course—but scholars of religion and politics have long noted that “orthodoxy” and “dissent” are mutually constitutive and symbiotic. Physical gestures and performances as mundane as the refusal to doff hats to superiors fit comfortably alongside searching arguments about common law and the Trinity in any attempt to speak more concretely about the terms “Dissenter” or “Quaker” and the many meanings they must have held for those who claimed them.
It should be clear by now that embedded principles and enacted performances do not occupy hermetically sealed boxes. For example, as we have seen, at several points in the trial, Penn and Mead directly address their jury. After the initial verdict, Penn argues that
the agreement of twelve men is a verdict in law, and such a one being given by the jury, I require the Clerk of the peace to record it, as he will answer it at his peril. And if the jury bring in another verdict contradictory to this, I affirm they are perjured men in law.
97
Immediately after this assertion of legal principle, we find Penn looking at the jury and directly addressing them. “[L]ooking upon the jury, [Penn] said: You are Englishmen; mind your privilege, give not away your right.” To which Bushel and other jurors replied, “Nor will we ever do it.” 98 This exchange—especially the mutual recognition displayed by the jury members’ sympathetic reply to Penn’s appeal—is both a statement of principles and a performance that implies collusion (between Penn, Mead, and the jury) as well as opposition (between the defendants and jury on the one hand, and the court on the other). More generally, as I have attempted to make clear throughout this essay, even the embedded principles in Peoples are always performed in ways that vivify them and, in the context of a courtroom trial, bring out the intensely political origins of political theorizing.
VI
The Peoples Ancient and Just Liberties is hardly the only trial transcript available to scholars of early modern political thought, nor is it necessarily unique vis-à-vis these others; though no doubt Penn’s emerging role in Restoration Quakerism (and later American colonization) gives this particular transcript a heightened profile. The trials of Leveller John Lilburne in 1649 and 1653 were widely publicized, and raised similar issues of jury independence and the common law. 99 And of course the trial and execution of King Charles I in 1649 continued to cast a long shadow over the nation’s political discourse. 100 Nothing in this essay depends upon the singularity of Penn, Mead, and their trial. In fact, quite the converse: I view Peoples as exemplary in a way, reflecting widespread political, religious, and legal dynamics of early modern English society and, through the transatlantic transmission of people and ideas, into early American colonial contexts. If anything sets the Penn-Mead trial apart from some of these other sources, it is the multiple contexts on which it sheds light (e.g., early modern political thought, legal history, the history of religious liberty, and religious dissent).
The foregoing pages have established that the trial transcript is fertile ground for political theorists working in interdisciplinary modes, sensitive to the many ways in which political principles and political content are communicated and the workings of power in the courtroom. The courtroom, of course, is just one arena in which those implications present themselves, but its carefully structured procedures, not to mention the real-world importance of its outcomes, make it an ideal institution on which to focus. The sort of analysis that I have been suggesting with regard to Peoples could be offered on any of a number of such sources, other venues in which the exercise of power leave a script of sorts (even if, like Peoples, these scripts are rife with ambiguity and partiality). Better-known trials like the trial of Socrates, for example, have already been the subject of much scholarly interpretation; 101 but there are many others, analysis of which could shed a great deal of light on the development of modern political thought: the Salem witch trials, the trial of John Brown, Sacco and Vanzetti, and so on. There are treasures in the enormous collections of materials published in the twenty-one volumes of State Trials, which are now in the public domain and easily accessible, in their entirety, online. 102 And Stuart Schwartz has mined the records of examinations before the Inquisition in Europe and South America, producing a rich trove of insights about the ways in which individuals standing before ecclesiastical and civil judges comported themselves and responded to accusations against them. 103
But political theorists can also take these investigations of political performance, or enacted and embedded principles, beyond courtroom trials: at constitutional convention records from post–Arab Spring contexts, Occupy movements of various types, or the “Ground Zero mosque” controversy that roiled American society during 2010; even to the most local level, to school and zoning board hearings. What we find in these and other like cases are dramatic presentations of the exercise of (and resistance to) political power, episodes in which claims and counterclaims are enacted in the midst of interpersonal conflict and debate, in which political argument commingles with theatricality, performance, and gesture as citizens contesting the political with each other, with market actors, and with the state. All of these types of texts share an experiential element, in which political theory maintains a constant presence outside the bounds of canonical treatises and traditional venues.
Attempting to understand trial transcripts as political theory does entail methodological challenges. First, issues of authorship and authorial intention are far more muddled when dealing with a transcript (or purported transcript) than with a text with a clearly defined author. It is one thing, for example, to argue about what Hobbes meant by sovereignty, or Locke’s understanding of tacit consent, but such questions of meaning and intention are, if not ruled out entirely, made all the more contentious when the text lacks an identified author (as in Peoples). “Embedded principles” perhaps come closest to “conventional” or canonical political theory, where evidence of various sorts is presented in support of a particular theory of government that the theorist finds most valuable or just. But a text like Peoples complicates these issues by presenting embedded principles in the mouths of characters who are not reducible to the author of the text, if one is even known. (For that matter, given the dramatic nature of Peoples and the ambiguity of the “transcript” it provides, we cannot really be sure that the “William Penn” who speaks in the text is necessarily the same William Penn who went on trial with Mead in 1670.)
Second, moving from the analysis of canonical texts of political theory into an essentially dramatic genre like the trial transcript requires new skills and methodologies to analyze nonverbal cues and behaviors, which the author of Peoples and other similar texts insert as a kind of “stage direction” to help readers visualize the action taking place. Deleuze’s notion of dramatization, which I mentioned earlier, clearly helps in sensitizing the reader to what is going on when, say, Penn refuses to doff his hat (which we might view as a dramatization of the Idea of equality of all before God). More generally, we need a more subtle set of methodological tools to analyze the sort of gestural politics that are so pronounced in Peoples, and to begin to explore the gestures on which late-modern societies are organized. Introducing a special issue of Past and Present, Michael J. Braddick offered the following observation:
Reading a gesture in detail requires an understanding of a larger code . . . and implied in that is an understanding of the sign attached to the whole realm of gesture at a particular time and place. . . . The density of meaning carried by gestures makes them crucial to propaganda, resistance, and memory, and to the construction of the self. . . . Small deeds, it is clear, can speak volumes.
104
A nascent but growing literature on the politics of gesture begins to point us in the direction of such methodological and interpretive resources, but political theorists have traditionally possessed few analytical tools by which to interpret gestures or other nonverbal forms of communication. Emerging scholarship on gesture and social context represents a promising trend in the understanding of such phenomena. 105
To address (though surely not to solve) these methodological challenges we might turn once again to Deleuze’s notion of dramatization. “Whenever an Idea is actualized,” Deleuze writes, “there is a space and a time of actualization. The combinations are clearly very variable.” I quoted Deleuze earlier, as well, on dramatization as “replacing a logos with a ‘drama’ . . . [or] setting up the drama of this logos.”
106
The Quaker refusal to doff hats, for example, is an example of one group’s understanding of the idea of equality, taking place in a particular (variable) place and time. Robert Porter and Iain Mackenzie have helpfully explicated the significance of Deleuze’s work for political theorists:
The dramatization of the political can be thought of as a new way of thinking about how the concepts of political theory express the idea of the political (as an alternative approach to the traditional activity of political theorists), where dramatic conceptualization takes place (thereby broadening the scope of political theory beyond preoccupations with institutions and norms), and who, and/or what, thinks the political (so as to allow the possibility that “the theorist” may be a film or a crowd as well as an individual in an academic institution).
107
The great virtue of Peoples as a text on which to focus lies in its capacious dramatic presentation of the principles of equality, liberty of conscience, and Dissent during the Restoration years. MacKenzie and Porter write of dramatization as a “method aimed at determining the dynamic nature of political concepts by ‘bringing them to life,’ in the way that dramatic performances can bring to life the characters and themes of a playscript.” 108 Although the drama in Peoples is far more overt than, say, Mackenzie and Porter’s intriguing notion of Rawls’s Theory of Justice as a “dramatic script that we readers can pick up and play,” 108 there is a common expectation, in each sense, that a reader will engage with the text in a direct, personal, and experiential way. The emphasis on performance and enactment moves us away from an exclusive focus on debates about principles and institutions, and toward broader investigations of the lived dynamics of political power, domination, and resistance. It also beckons toward an increasing understanding of the importance of the audience; after all, dramas are made to be performed, and Penn’s and Mead’s performance was clearly aimed not only at the judge and jury, not only at people who would have come to watch or who were particularly interested in the trial (either critics of Quakerism, or Quakers themselves), but also at the political nation and the reading public, who were all interested, in one way or another, in the proceedings at the Old Bailey in September 1670.
Given the nature of legal proceedings, and the precedential nature of common law systems, one trial’s consequences and ramifications radiate outward to other cases and potential cases in the future. In the aftermath of the Penn-Mead trial, Edward Bushel, the fined juror who attracted such scorn from the bench, brought suit to have his fines dismissed. The resulting decision, authored by Chief Justice Vaughn, affirmed the principle of jury independence by striking down the fines. Though the Chief Justice Vaughn did not vindicate the notion of jury nullification—the idea that juries may decline to convict a defendant in order to protest the law under which he or she is being tried—he did make an important epistemological point about reasonable disagreement, that evidence convincing to one person may not convince others. And insofar as Vaughn denied judges the right to penalize juries that came to different conclusions than those judges had, the case was instrumental for those who would later advance the cause of nullification.
But there are even farther-reaching consequences of the Penn-Mead trial and its dramatic presentation in Peoples. Ten years after the founding of Pennsylvania—twenty-two years after the publication of Peoples—a schism rocked Penn’s Quaker colony, resulting in the leaders of a dissident faction of Quakers being brought before civil courts on charges of seditious libel. In the wake of the trials (which resulted in a conviction, though the fines levied were apparently never collected), a publication entitled New England’s Spirit of Persecution Transmitted to Pennsylvania appeared in Philadelphia, purporting to present a transcript of the trials. 110 The work, written by George Keith (one of the defendants), attempted to tar Pennsylvania’s Quakers with the persecuting label so commonly fastened on New England Puritans. It also echoed the earlier transcript of the Penn-Mead trial, casting the author himself in the role of young Penn, standing up to arrogant and arbitrary courtroom officials, and Pennsylvania’s (Quaker) authorities—many of whom were close associates of Penn—in the role of the proprietor’s English persecutors of several decades earlier, running roughshod over conscience and law in their ill-tempered quest to retain their positions of privilege. So perhaps we should develop not only our skills in the literary realm but a healthy sense of irony as well.
Footnotes
Acknowledgements
A previous version of this paper was delivered at the 2011 Annual Meeting of the American Political Science Association; portions were also presented to the Rutgers British Studies Center and the University of Cambridge Early Modern British and Irish History seminar. Thanks to each of those audiences, and especially to Libby Anker, Jane Calvert, Mark Goldie, Anne Norton, Vicki Hsueh, and Elizabeth Wingrove for more focused commentaries and/or conversations.
Declaration of Conflicting Interests
The author declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.
Funding
The author disclosed receipt of the following financial support for the research, authorship, and/or publication of this article: The research and writing of this paper was supported by the Library Company of Philadelphia/Historical Society of Pennsylvania (Mellon Foundation Fellowship), the National Endowment for the Humanities (Fellowship FA-55440), and an Overseas Fellowship at Churchill College, Cambridge (UK). Research assistance by Anthony Grasso was generously supported by the Aresty Research Center at Rutgers University.