In 1670, William Penn, then twenty-six years old and living in London, was charged with sedition against the Crown, and if found guilty would have been executed. Penn had objected to the so-called Coventicle Act, that prohibited any ‘‘tumultuous assembly,’’ meaning any religious gathering, from meeting outside the Church of England. In a deliberate challenge to the law, Penn preached a sermon at Grace Church in London, which officials dubbed a ‘‘tumultuous assembly,’’ and promptly arrested him.
At the time, defendants charged with a crime could not have a lawyer represent them, so Penn defended himself in the trial at the Old Bailey. The judges included the lord mayor of London, and twelve citizens of the city were chosen as jurors. Because Penn had a transcript made of the trial proceedings, and later published it, we have an idea of what happened.
The judges thought the trial would be simple. Did Penn preach at Grace Church? If he did (and the facts made it quite clear that he had), then he would be guilty and the case would be over. By law, the mere fact of his preaching, by definition, had caused a ‘‘tumultuous assembly.’’
But the twelve jurors apparently did not like the law, nor how the judges treated Penn. Because of his ability to question the judges on fine points of law, the court locked Penn in the ‘‘bale dock,’’ where the jury could hear but no longer see him.
The jury reached a unanimous verdict: ‘‘Guilty of speaking in Grace Church.’’ But this was not what Penn had been charged with, and the lord mayor shouted at the jury, ‘‘Was it not an unlawful assembly? You mean he was speaking to a tumult of people there?’’ No, the jury replied, we did not find that. The court was furious, and the bailiff told the jury:
Gentlemen, you will not be dismissed until you bring in a verdict which the court will accept. You shall be locked up, without meat, drink, fire and tobacco. You shall not think thus to abuse the court. We will have a verdict by the help of God or you shall starve for it.
But the charge only stiffened the jurors’ resolve, and after two days the court ended the trial without accepting the verdict. It fined the jurors and sent them to Newgate prison, where they were to remain until they paid their fines. But four of the jurors, led by the foreman, Edward Bushell, refused to give in. Nine weeks passed, and finally England’s high court intervened. The lord chief justice freed the jurors in response to Bushell’s application for a writ of habeas corpus, the first time that the High Court of Common Please had ever issued the writ.
The courage of the jurors changed English legal history, and helped to establish the independence of the jury from domination by the Crown. In many ways, Penn’s case is one of the first recorded instances of ‘‘jury nullification,’’ where a jury refuses to find guilt because they disagree with the law.
In the colony that Penn founded in America, Penn reserved the death penalty only for murder and treason; at the time of his case, over two hundred different crimes in England, many of them political in nature, could warrant the death penalty. He also started the movement to free religious dissent from the label of sedition.
MELVIN I. UROFSKY
References and Further Reading