September 5 is celebrated as Jury Rights Day. The story of how that came to be is so compelling, it could be made into a movie that would thrill even early 21st Century viewers. The courage in the face of very real physical threats and tyranny is stirring.
In 1664, the British Restoration Parliament passed the Conventicles Act, which made non-Anglican religious meetings of five or more illegal. Many trials of Quakers resulted, and the Quakers responded with pamphlets using 1640’s Leveller ideas urging that juries use their own interpretation of the law to refuse to convict under the act. Judges, however, began to fine juries for not bringing in the verdict that the judges thought lawful when they did acquit Quakers being prosecuted under the act.
In 1670, the pictured William Penn, who would later found Pennsylvania, and William Mead were arrested for preaching to a Quaker assembly and charged with the capital offenses of unlawful and tumultuous assembly, disturbance of the peace, and riot. There were many injustices visited upon the defendants and jury during the trial. Court recorder John Howel refused to allow Penn to view the indictment before pleading.
Setting the tone of the trial, Lord Mayor Starling, the presiding judicial officer, asked Penn and Mead in the presence of the jury why they were not wearing their hats, ordering the officers in the court to put their hats on their heads. No sooner than done, Recorder Howel berated them for their disrespect of the King’s Court for wearing their hats and fined them forty marks each for doing so.
Defending themselves, Penn and Mead had both asked for and received assurances that they would receive “Liberty in making [their] defence.” Despite this, when they repeatedly asked for a statement of the law upon which they were charged, both Penn and Mead were thrown in the bale-dock, a cage under floor level at one end of the courtroom from which the defendant could be heard if shouting, but could not be seen by the jury. At one point, Howel threatened to have Mead’s tongue cut out.
The jury came back the first time after an hour and a half split eight to four, with Edward Bushell in the group of four dissenters. The panel of judges threatened Bushell with indictment and one threatened to put a mark upon him, before sending the jury back for more consideration. The next time the jury came back, they had a unanimous decision and delivered it for William Penn as, “Guilty of Speaking in Gracious-Street.” The judges refused this verdict and, after more threats, sent the jury back for more deliberation. A half hour later, the jury returned with a written, signed verdict, repeating Penn’s verdict, and declaring Mead not guilty.
The judges refused to accept the verdict, despite Penn’s protests. Howel declared that the jury should be locked up “without Meat, Drink, Fire, and Tobacco” until the jury returned a verdict that the court would accept. As the jury left the room, Penn told them, “You are Englishmen, mind your priviledge, give not away your Right.” Bushell and others replied, “Nor will we ever do it.” The jury was kept all night as Howel had instructed, and was even denied a chamber-pot.
In the morning, the jury repeated their verdict once again. Penn asked if the Recorder accepted the verdict given for Mead, but Howel said, “It cannot be a Verdict, because you are indicted for a Conspiracy; and one being found not guilty, and not the other, it could not be a Verdict.” After the jury was sent out once again and returned again with the same verdict, Lord Mayor Starling threatened to cut Edward Bushell’s nose. Howel stated, “Till now I never understood the Reason of the Policy and Prudence of the Spaniards, in suffering the Inquisition among them: And certainly it will never be well with us, till something like the Spanish Inquisition be in England.” The jury was then locked up in Newgate prison for another night with “several sworn” to deny them food, drink, fire, tobacco, and toilet facilities.
In the morning, September 5, 1670, the jury repeated its earlier verdict. Then refused by the judges, they finally gave a not guilty verdict for Penn as well as Mead. The judges required each juror to independently state his name and verdict.
To show their fury at the jurors, the judges assessed a fine of 40 marks against each, and each to be imprisoned until his fine paid. Eight paid their fines, but Edward Bushell, John Bailey, John Hammond, and Charles Milson refused to pay and were imprisoned.
Bushell filed a writ of Habeus Corpus ad Subjiciendum and his case was heard by the Court of Common Pleas. Chief Justice Vaughan (pictured below) wrote the opinion for the Court, holding that juries are not fineable for bringing a verdict of their own understanding. His logic was based on the theory that juries are the sole judges of the fact. As such, a judge cannot substitute his own judgment of the facts and conclude that the juries have not followed the law.
The logic of the case was summarized in the Jacob’s Law Dictionary definition of “jury”:
for the law supposes the jury may have some other evidence than what is given in court, and they may not only find things of their own knowledge, but they go according to their consciences.
There were several practical effects of the opinion in Bushell’s Case by Chief Justice Vaughan and the Penn and Mead trial that went beyond the narrow confines of the opinion. First, Justice Vaughan’s holding that juries cannot be punished for their verdicts created a practical firewall (the power) for jury independence that has never been breached by American appellate courts.
Second, the protection of the life and liberty of William Penn allowed the “Keystone State” of the American union to develop and prosper. It is difficult to imagine American liberty or independence without Penn’s founding of Philadelphia and Pennsylvania. The Declaration of Independence and Constitution were written in Penn’s city. Pennsylvania provided a shining example of how liberty and religious tolerance could produce harmony and prosperity. Pennsylvanians were key to the development of the American conception and protection of jury independence, as well. (Note that when Texans added language to our Bill of Rights about juries, we used the language from the Pennsylvania Bill of Rights.)
Third, the story itself of how juries protected Penn’s liberty became part of the canon of American liberty. American juries have used the power gained from the Penn and Bushell case to stop witch trials, protect colonial smugglers evading British taxes, protect free speech, protect runaway slaves and those who helped them, protect against Prohibition, and protect against a host of other liberties.
So, on this Jury Rights Day, let’s celebrate William Penn, William Mead, Edward Bushell, his fellow jurors, and Chief Justice Vaughan. Our lives are immeasurable richer because of their courageous action.
Tom Glass lives in Northwest Harris County. Click here to reach his email. He is also on Facebook as Tom G Glass. He leads a group called Texas Constitutional Enforcement which can be explored at its website or Facebook group. He also is the founder of the Lone Star Fully Informed Jury Association with this Facebook group and website. He has written a scholarly paper which applies Antonin Scalia's originalist method to the framer's view of the role of the jury.