They starved the jury. The jury held.

This is the next installment of Courage and Consequence — a series about relatively unknown individuals in history who made courageous decisions under extraordinary pressure, and had to live with what followed.

William Penn needs to be remembered.

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The jury had been locked up for a night without food, water, or a fire. The London sessions were held in the autumn of 1670, and the room where the twelve men slept had no chamber pot. They had been told by the Recorder of London that they would not be dismissed until they produced a verdict the court would accept.

They produced the same verdict.

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The Person

William Penn was twenty-five. He was the son of Admiral Sir William Penn, who had fought at sea for the Commonwealth and then for the King, and who had earned an estate in Ireland for his trouble. The father wanted the son at court. The son had become a Quaker.

He had been sent down from Oxford for refusing the required Anglican worship. He had been sent to France to learn manners and had come back with convictions. He had been sent to Ireland to manage the family estate and had come back baptized in a movement his father could not abide.

By 1670 the admiral was dying. Penn returned to London to be near him. He also returned to preach.

The Context

Parliament had just renewed the Conventicle Act. The new version of the statute, passed that spring, forbade any religious gathering of more than five people outside the Church of England.

The Quakers met anyway. The government padlocked their meetinghouse in Gracechurch Street.

On August 14, 1670, Penn stood in the street outside the closed door and preached. William Mead, a linen draper and a former captain in Cromwell’s army, stood with him. A constable named James Cook tried to reach Penn through the crowd and could not. Richard Read, under oath later, would say he heard Penn preach but could not make out the words.

The Crown chose not to prosecute under the Conventicle Act. The Conventicle Act bypassed juries. The Crown wanted a jury, because a jury verdict would legitimize what the Act could not. So Penn and Mead were charged with unlawful assembly, rout, and riot at common law.
They were held in Newgate for two weeks.

The trial opened at the Old Bailey on September 1, 1670, before the Lord Mayor of London, Sir Samuel Starling, and the Recorder, Sir John Howell.

The Decision

The court began by ordering a bailiff to replace the defendants’ hats on their heads. Then the Recorder fined them forty marks each for wearing hats in court.

Penn answered that if the bailiff had put the hats on, the bailiff should be fined.
What followed was not a defense. It was a confrontation.

Penn refused to plead until the court produced the law under which he was charged. The Recorder said the common law. Penn asked where that law was. The Recorder said he could not run through thirty or forty years of cases to answer him. Penn said a law that cannot be produced is a law that does not exist.

Where there is no law, he said, there is no transgression.

The Recorder had him removed from the court into a pen called the bail-dock, where he could hear nothing and cross-examine no one. Mead was removed after him. The Recorder then charged the jury in the absence of both defendants.

Penn shouted from the bail-dock. He told the jurymen they were being deprived of their right to hear the prisoners’ defense. He told them that if they accepted a verdict written by the bench, Magna Carta was a mere nose of wax.

Then he said the line the jury remembered.

You are Englishmen. Mind your privilege. Give not away your right.

Edward Bushel, juryman, answered him.

Nor will we ever do it.

The jury went out. After an hour and a half they returned with a verdict. They found William Penn guilty of speaking in Gracechurch Street. They refused to add the words unlawful assembly.

The court rejected the verdict. The court ordered them to reconsider.

They reconsidered. They wrote their verdict on paper and signed it. William Penn, guilty of speaking or preaching in Gracechurch Street. William Mead, not guilty.

The court rejected this also. The Recorder said they would be locked up without meat, drink, fire, or tobacco until they gave a verdict the court would accept. The Mayor told juror Bushel that his conscience would cut the Mayor’s throat. Bushel answered that it never would. The Mayor replied that he would cut Bushel’s as soon as he could.

The jury was locked up for the night without food, water, heat, or a chamber pot.

In the morning they returned the same verdict. The Recorder said he now understood why the Spaniards had the Inquisition, and that England would not be well until something like it came here. He threatened to cart the jurors around the city as had been done in the reign of Edward III. He told Bushel he would set a mark on him. The Mayor said he would cut Bushel’s nose.

The jury was locked up a second night.

On the morning of September 5, 1670, they came down and were polled one by one. Each of the twelve answered the same word to the clerk.

Not guilty.

The Aftermath

The Recorder fined each juror forty marks and sent them to Newgate until they paid. Penn and Mead, though acquitted, were returned to Newgate for the hat fines.

The admiral, on his deathbed, paid both his son’s fine and Mead’s. William Penn came home.

The admiral died eleven days later.

Eight of the jurors paid their fines. Four did not. Edward Bushel was one of the four.
Bushel lay in Newgate while a petition went up to the Court of Common Pleas. The Chief Justice was Sir John Vaughan. A writ of habeas corpus was issued. In November 1670, Vaughan delivered an opinion that answered the question the Old Bailey had raised and could not answer honestly.

A jury cannot be fined or imprisoned for the verdict it returns.

Vaughan drew the distinction that mattered. The judge judges the law. The jury judges the facts. The jury cannot be punished for doing what the jury exists to do. If the bench can coerce the verdict, Vaughan reasoned, the trial is a formality and the verdict is an order.

The decision is cited as Bushell’s Case. It has stood for three hundred and fifty-six years.

The Meaning

Penn wrote his account of the trial from Newgate. It was published before the end of 1670 as The People’s Ancient and Just Liberties Asserted. It went through nine printings in three months. It was reprinted in 1682, 1696, 1710, and 1725. Eighty-nine years after the verdict, when a Philadelphia jury heard the case of John Peter Zenger and found him not guilty against the direction of the bench, they were standing on Bushel’s Case.

When the Sixth Amendment was ratified in 1791, it was standing on Bushel’s Case.

Penn carried his own lesson across the Atlantic. When he wrote the Frame of Government for Pennsylvania in 1682, he wrote into it the right of trial by jury and the right of religious worship. The colony he founded was an answer to the courtroom he had been dragged out of.

A plaque hangs today in the Old Bailey. It names the jurymen — Thomas Veer, Edward Bushel, John Hammond, Charles Milson, Gregory Walklet, John Brightman, William Plumstead, Henry Henley, Thomas Damask, Henry Michel, William Lever, John Baily — and it records what they did. It does not record what it cost them to do it. Two nights in a cold room with no food and no water. The threat of a knife against the face. The certain prospect of ruinous fines and the loss of a man’s livelihood.

They held twelve times in a row.

A jury is not free if it can be punished for disagreeing.

That is the principle the twelve men in Gracechurch Street taught the English common law, and through the common law, taught the United States.

It is the reason a judge today cannot order a verdict of guilty.

It is the reason a not-guilty verdict cannot be overturned.

It is the reason the words trial by jury mean anything at all.

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Sources: The People’s Ancient and Just Liberties Asserted, in the Trial of William Penn and William Mead, London, 1670 (digitized by the Library of Congress and Early English Books Online, University of Michigan); Bushell’s Case, Vaughan 135, 124 E.R. 1006 (1670); Howell’s State Trials, Vol. 6; Encyclopædia Britannica entry on William Penn; Andrew R. Murphy, “Two Williams go to trial,” OUP Blog (Oxford University Press, 2016).

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Next in this series: Mary Dyer — She Came Back Knowing the Rope Was Ready.

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Charles C. Jett is a U.S. Naval Academy graduate, Harvard MBA, and former nuclear submarine officer. He is an author, executive coach, and civic educator who publishes at criticalskillsblog.com and civicsage.com.