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“GENTLEMEN OF THE JURY” ... by Godfrey Lehman
Religious liberty was at stake! The judges were furious and William Penn faced life imprisonment! Hungry, thirsty and dirty the GENTLEMEN OF THE JURY decided to sit until death.
A corps of turnkeys spread over the streets of London on orders of the King, sending luckier citizens scurrying from sight, and taking into custody the unfortunates who were too surprised to move.
Clerks were pulled from their stools, carriages were stopped and passengers forcibly requisitioned. Sixty or seventy Englishmen were collared in swift order and brought to the Central Criminal Court of London for examination.
They had committed no crime. The King’s men were “selecting” them for an unwelcome task - jury duty. Despite the Magna Carta’s 450 year old guarantee to trial “by one’s equals”, English juries were expected to behave like judicial puppets - parroting the courts’ wishes.
Not only did the courts dictate verdicts, but juries were given no food or water, or access to the most elementary form of plumbing, until the expected verdicts were delivered. In a few cases where juries did defy the courts, defendants might be freed, but the jurors were themselves heavily fined or imprisoned.
Understandably, few jurors had the stamina to stick to the Magna Carta. The date of the jury selection was Wednesday, August 31, 1670. By the day’s end all but 12 luckless Londoners had been released. Those remaining, however, were to find themselves unwilling participants in a trial that would set legal precedent and shake the Throne itself.
On September 3, the trial of a 25 year old Quaker, William Penn, and an older colleague, William Mead, began in the Central Criminal Court. Penn and Mead had been arrested and confined in the dreaded Newgate Prison on August 14th, when a group of three or four hundred Quakers assembled for worship at Gracechurch Street meeting house. There they confronted a phalanx of Redcoats, each of whom nervously gripped a cocked musket.
Stepping forward, the troops’ lieutenant pleaded with Penn and the group not to hold a religious service that Sunday morning because their Quaker worship violated the law. He read them the pertinent provisions of the elaborate Conventicle Act which established the one legal church, the Church of England. Penn responded that there was a higher law, a law that permitted every man and woman to worship God or not worship God according to the dictates of his own conscience.
Denied entrance to the meeting house, Penn began his worship service in the street. He and Mead were arrested and indicted for “leading a conventicle, conducting an unlawful and tumultuous assembly ... to the disturbance of the peace,” and “conspiring and abetting together” to do the same.
The King, the Parliament and the Central criminal Court united for the trial, both to silence Penn forever and to put an end to the despised Quakers and other dissidents who defied the established church.
Although the Court assembled on Thursday, September 1st and the indictments were read and the pleas of “not guilty” recorded, the trial itself did not begin until Saturday, September 3. The 12 jurors had been confined in the Sessions House also known as the Old Bailey, for two days.
A parade of carefully coached military witnesses testified to the guilt of both prisoners. Neither Penn nor Mead was given opportunity for cross-examination or allowed to present witnesses or arguments in their own defence. They did not deny the “holding of a Conventicle,” but they asserted their right to religious freedom under the Magna Carta. They had assembled peaceably, the only disturbance being caused by the soldiers.
The jurors spent days without even a slop jar. They were soaked with urine, smeared with faeces. When they gave their final verdict, several had a high fever, the foreman was barely able to stand.
By late afternoon it had become “clear and manifest” that the accused had violated the law. All that was left was for the jury to go through the motions of returning the guilty verdict, as the Court directed. The defendants would be convicted, perhaps never to be released from prison.
From 7 a.m.. until late afternoon the 12 jurors had been sitting on rough benches. Now they were told that as soon as they had convicted the prisoners they would be permitted relief and treated to a sumptuous Court-hosted banquet.
Following precedent, the Court granted the jurors one quarter of an hour to agree to the guilt of both prisoners. The quarter hour passed, and the jurors did not return. Twenty minutes; Half an hour; An hour; No jurors; Finally after an hour and a half, eight jurors returned and the court ordered the bailiffs to draw forth the other four.
“We have no verdict,” the jurors told the Court.
The judges raged. Such defiance of the authoritarian powers of the King, Parliament and venal Court! Still, there could be no conviction without the jury acceding.
Back the jury went for another half hour, and then they returned to the sessions house. The clerk asked for the verdict and the foreman arose. “Penn guilty of speaking in Gracechurch Street,” Mead: “Not guilty of the indictment.”
The court was incredulous. There was no law against “speaking.” The verdict meant nothing. Is that all?” asked the recorder. “That is all I have in my commission responded the stoical foreman.
“You have as good as said nothing,” a judge roared at them. The presiding “Justice” the Lord Mayor of London, Sir Samuel Starling pounded his desk, and demanded to know why the jurors would not obey the directive of the Court.
WE WILL NEVER YIELD OUR RIGHTS
One Edward Bushell rose to respond. “The Court has no power under Magna Carta to dictate the jury’s verdict.”
“This Court has any power it chooses!” the Mayor shouted back. “To disobey it is to bring disgrace upon the Court as well as upon yourselves.”
“WE do have to follow our consciences, which is to bring honour to this Court, and we can do no other. If this be not honour, then we charge this Court has no honour.”
“Your insolence is beyond endurance. It is the direct order of this Court that you bring in ‘guilty’ against both prisoners.’
“No, my Lord.” said Bushell, unyieldingly, “This the jury will never do, for we will not betray the liberties of this country. We know our rights in Magna Carta.”
The COURT: “These rights will starve you.”
Bushell: “So be it, my Lord, but on this point we will not equivocate. We will never yield our rights as Englishmen.”
Old Bailey went wild. The 500 spectators cheered for minutes. Never had a Court of Law been so successfully put down. Never had the entire government been so effectively overpowered by a handful of conscientious common people - “bumbleheads” as the Mayor described them.
Frustrated, the Justices refused to accept the verdict. They commanded the bailiffs to lock up the hungry jurors overnight, still without food, water, or even a chamber pot. As a concession, the Mayor agreed to convene the Court on Sunday, “in the interests of the health of the jurors.”
The 12 spent a fitful night on the floor of the badly equipped jury room, receiving limited rations from the sympathetic public, who sent up packages through windows until driven away by the soldiers.
Bedraggled, aching and filth-ridden, the jurors returned to the Sessions House on Sunday morning. Back and forth between jury and courtroom the 12 were shuttled, but their verdict remained: For Penn, “Guilty of speaking in Gracechurch Street.” For Mead: “Not guilty of the indictment.”
The jurors knew there was a higher law: that they should obey God, not man.
Nor would the Court give in. By mid-afternoon the disgusted justices locked up the jurors again without food, for the night. The jurors survived on the meagre emotional succour of citizens shouting their encouragement from a distance.
When the Court assembled on Monday morning, the jurors were soaked with urine and faeces. The Mayor asked for a verdict, and the weakened foreman, barely able to stand, delivered a new and unexpected response. “Not guilty,” to the question for each prisoner.
The shocked Court forced each juror to stand and in turn “take responsibility” for this more decisive verdict. Twenty-four times the words rang out - “Not Guilty.”
Led by Edward Bushell, the jury had acquitted because “every man has the right to worship God according to his own conscience.” The twelve had determined to sit until death on that principle. Yield at this point, Bushell had impressed upon his colleagues, and their families and all England would be enslaved. No one but the jurors stood between religious liberty and thought control.
On September, 5 1670 the Justices capitulated. The Magna Carta and 12 stout men had struck a decisive blow for freedom. The Conventicle Act fell. Penn and Mead were freed, never to be brought to trial again.
MY LIBERTY IS NOT FOR SALE
Nevertheless the Court was going to have its revenge. For “going against the clear and manifest evidence,” the Jurors were fined 40 marks - equivalent to perhaps half a year’s earnings. Eight paid, but four again led by the stalwart Bushell, refused. Although Edward Bushell was a man of great wealth and commanded an international shipping enterprise, and although payment of 40 marks, or even 480 marks for the entire jury, was a pittance to him, and a far smaller loss for him than the continued absence from his business, he would not pay.
“My liberty is not for sale.” he said.
To pay would emasculate the victory. It would be a form of apologising for acting in good conscience. Thus, he and three others - John Bailey, Charles Milson, and John Hammond -were imprisoned in the same “hell above ground” from which their courageous action had freed Penn and Mead.
In Newgate they were subjected to degrading brutality from sadistic jailers. They appealed through the distinguished Sir Richard Newdigate, a retired Chief Justice under Cromwell and a life long champion of the peoples’ liberties. Sir Richard came out of retirement to argue the case before the Court of Common Pleas, a Civil Court which actually did not have jurisdiction to hear a criminal appeal. The Court of King’s Bench handles criminal appeals to the Crown, but Newdigate cleverly managed to convince the not-reluctant Chief Justice of Common Pleas, Sir John Vaughan, to accept the appeal.
ACQUITTAL BY JURY - ABSOLUTE
It took nine painful weeks for the legal manoeuvring, the hearing and finally the Court to write its lengthy opinion, the jurors all the while suffering rigours of Newgate.
Sir John had been more or less predisposed to his decision, but it was necessary to cite many cases to build a foundation for a precedent. On November 9 he took “the clearest position I have ever taken: both for law and for reason. The power of the jury to determine its verdict, free and untrammelled, is supreme. No Court can dictate a verdict. The evidence could not be ‘clear and manifest’ for it did not appear so to the jury. Acquittal by jury is absolute.”
Bushell was released on Habeas Corpus - the first such writ issued by the Court of Common Pleas. And since the Quaker congregation had been meeting in an orderly fashion, the jury also established the right of peaceful assembly and freedom of speech. And, by its courageous stand it demonstrated that one of the strongest powers in government is in the jury room.