NARRATOR: The date is September 1, 1670. The place is the Old Bailey Courthouse in London, England. The Conventicle Act makes it a crime for any person who is not a member of the Church of England to preach inside a building. Knowing this, 21-year-old William Penn, a Quaker and future founder of the colony of Pennsylvania, preached to an assembly of Quakers (a religious group not in unity with the Church of England) on Gracechurch Street in London. He was arrested and charged with fomenting an unlawful and tumultuous assembly. His trial, which demonstrates the extent to which jurors will go to protect the role and responsibility of the jury, is about to begin.
CRIER: Oyez. All those having business before this honorable court are admonished to draw near, give their attention, and they shall be heard. God save the King!
The honorable men of the jury: Thomas Veer, Edward Bushel, John Hammond, Charles Milson, Gregory Walklet, John Brightman, William Plumstead, Henry Henley, Thomas Damask, Henry Michel, William Lever, and John Baily.
Oath: "You shall swear that your verdict in this matter shall be based upon the evidence presented in this trial and upon the evidence alone. So help you God."
JURORS: We do.
CRIER: William Penn. You shall now hear the indictment against you.
That you, William Penn, on or about the 14th day of August 1670, with force and arms, did unlawfully and tumultuously assemble yourself and others in disturbance of the peace. Moreover, once assembled, you did preach and speak to the crowd, an action that resulted in an even greater disturbance of the peace.
COURT: How do you plead, William Penn? Guilty or not guilty?
PENN: I plead not guilty.
COURT: Bring William Penn to the Bar.
NARRATOR: In order to both wear down and instill fear in Penn, the court does not begin his trial immediately, but makes him wait until the trials of felons and murderers have taken place. More often than not, these trials result in guilty verdicts and death sentences. After five hours of this, court adjourns. It reconvenes on September 3. As was customary, Penn removed his hat when he entered the courtroom. On this day, however, the court instructed the clerk to place it back upon his head.
COURT: William Penn. Do you know where you are? Do you not know that you are in the King's Court?
PENN: I do.
COURT: Then why do you not show respect to the court and remove your hat?
PENN: I did come into court with my hat off, but the court ordered that it be placed back upon my head.
COURT: The court has heard enough. You are fined 40 marks for your contempt of court.
PENN: Since the court commanded me to put my hat back on my head, I believe that the court should be fined. I ask the jury to note the injustice that I have been subjected to by the court.
NARRATOR: The first witness is James Cook, a soldier who was sent to arrest Penn.
CLERK: Crier, call James Cook into court, and give him the oath.
CRIER: James Cook, come into court.
CLERK: James Cook, lay your hand upon the Bible. Do you solemnly swear to tell the truth, the whole truth, and nothing but the truth, so help you God?
COOK: I do.
COURT: Please give your testimony to the court.
COOK: I was sent to disperse a meeting at Gracechurch Street. When I arrived, I saw the defendant, William Penn, speaking to a crowd of about 300 or 400 people. I attempted to arrest him, but I could not get near him because of the crowd.
NARRATOR: James Cook is excused. The next witness is Richard Read. He was present when William Penn was arrested.
COURT: Crier, call Richard Read, and give him the oath.
CRIER: Richard Read, come into court.
CLERK: Richard Read, lay your hand upon the Bible. Do you swear to tell the truth, the whole truth, and nothing but the truth, so help you God?
READ: I do. My Lord, I was sent to Gracechurch Street where I found William Penn speaking to a large group of people. Due to the noise of the crowd, though, I was not able to hear what Penn was saying.
PENN: (Interrupting) Jury members, remember this evidence. He says that he heard me speaking, but was not able to hear about what I was speaking.
COURT: Be quiet, Mr. Penn! Mr. Read, about how many persons do you think were present?
READ: About 400 or 500.
COURT: Mr. Penn, do you have any questions for the witness?
PENN: Yes, my Lord. What was the day in question?
READ: August 14.
NARRATOR: Richard Read is excused. Instead of presenting his side of the case, William Penn proceeds to get into a legal argument with the court.
PENN: I have a question for the court.
COURT: What is your question, Mr. Penn?
PENN: I demand to know what is the legal basis for my indictment? I am not aware of any place where it is written down that my actions are illegal. Please show me a law book that contains the provision prohibiting my actions.
COURT: Mr. Penn, the legal basis for your indictment is the common law. The provision prohibiting your action is not simply written down in any one place. Rather, it is the result of legal principles that have been put forth and expanded upon as result of many years--hundreds of years--of court cases.
PENN: In that case, my Lord, I wish to withdraw my earlier plea of not guilty.
COURT: Do you now wish to plead guilty?
PENN: No, my Lord. I simply desire not to plead.
COURT: What do you mean! You have to enter a plea.
PENN: Shall I plead to an indictment that has no foundation in law? No one can even show me where the provision prohibiting my action is written down! The question is not whether I am guilty of the indictment, but rather is the indictment legal? Unless I know where and what the common law is, the indictment is too general and imperfect for me to answer.
COURT: How dare you lecture me on what the law is? How can I tell you in a moment what it has taken some a lifetime of study to understand?
PENN: If the common law is so hard to understand, then I suppose it is not very common.
COURT: Mr. Penn, I can see that you are a troublesome person. I warn you, though, that the court's patience is not infinite, and it will not suffer you to go on for much longer.
PENN: All I ask is that you allow me to exercise the rights that belong to every Englishman. How can one be convicted of an action that he had no way of knowing was forbidden?
CLERK: (addressing the court): My Lord, if you do not do something to keep this pestilent fellow quiet, we will not be able to get anything done tonight.
COURT (to the jailor): Take Mr. Penn away. Take him to the Bale-dock.
NARRATOR: The Bale-dock is a walled-off part of the courtroom in which the partitions do not touch the ceiling. This action is intended to remove William Penn from the sight of the jurors, but he is still able to be heard and to hear the proceedings.
PENN (exclaiming to the jury): Is this justice? Must I be taken away because I plead for the fundamental laws of England? If this action be permitted, it can only lead to disaster. Certainly our liberties will be invaded, our wives ravished, our children enslaved, our families ruined, and our estates led away in triumph. This is the consequence of forfeiting our rights.
COURT (to Penn): Be quiet! Far from being their defender, Mr. Penn, I look upon you as being the enemy of the laws of England!
NARRATOR: Penn is now locked away in the Bale-dock. Since all of the witnesses against Penn have testified, the court begins instructing the jury.
COURT: Gentlemen of the jury, you have heard the indictment against William Penn. It is for unlawfully and tumultuously assembling a crowd in disturbance of the peace and for preaching to the said crowd. You have heard witnesses prove these facts. These are the facts which you have sworn to rely upon in reaching a verdict.
PENN (to the jury): I appeal to the jury, who are my judges, to recognize that the proceedings of this court are arbitrary. It is unlawful for the court to instruct the jury in the absence of the prisoner. This violates the Magna Carta, the source of all of our laws.
COURT (to Penn sarcastically): I hear you, but I do not see you.
PENN: That is because you had me locked in the Bale-dock. My jurors, you cannot depart until you have heard my side of the story. It is unlawful for the court to instruct the jury and send it to deliberate without allowing the prisoner to plead his case.
COURT: You deserve to have your tongue cut out, Mr. Penn! Pull that fellow down, pull him down! Place him in the hole.
NARRATOR: The hole is a space underneath the Bale-dock into which the Bale-dock can be lowered.
COURT (turning to the jury): I am sorry that you had to witness that. Mr. Penn may talk to himself all night if he so desires. I am sure that you are tired of his antics and do not have the patience to hear any more from him. You may retire now to consider your verdict. Once you are agreed, return.
NARRATOR: Some time passes, and the jury reaches a verdict and court is reconvened.
COURT: Are you agreed upon your verdict?
COURT: Look upon the prisoner at the bar. How say you? Is William Penn guilty or not guilty of the crime for which he is indicted?
FOREMAN: Guilty of speaking in Gracechurch Street, my Lord.
COURT: Is that all?
FOREMAN: That is all I have to say.
COURT (agitated): That does not mean a thing! What about the unlawful assembly? That is what he is charged with fomenting. You mean he was speaking to the tumult of the people, do you not?
FOREMAN: That is all I can say.
NARRATOR: The court presses the Foreman over the issue of the unlawful assembly. After much questioning, the Foreman makes some concessions to the court. At this point, three jurors, including Edward Bushel, tell the court that they had not authorized the Foreman to speak for them beyond the verdict. At this point, the court begins to belittle the jurors, sometimes with profanity.
COURT (to the jury): I have had enough of your insolence. The laws of England will not allow you to leave until you have provided the court with a real verdict.
BUSHEL: We have given our verdict and can give no other.
COURT: What you have given is not a verdict. Go and consider your decision again.
NARRATOR: The jury is sent to deliberate again. A half hour later, it returns.
COURT: Are you in agreement with your verdict.
COURT: What say you? Look upon the prisoner. Is William Penn guilty or not guilty of the crime for which he is indicted?
FOREMAN: We the jury find William Penn to be guilty of speaking or preaching to an assembly in Gracechurch Street on August 14, 1670.
COURT (extremely agitated): Why do you allow yourselves to be led by Bushel? Gentlemen, you will pay for your insolence. You will not be dismissed until we have a verdict--a verdict that the court will accept. And, until we do, you will be locked up, without meat, drink, fire, and tobacco; you will not think to abuse the court. By God, we will have a verdict, or you will starve for it!
PENN (protesting the jurors' treatment from the Bale-dock): The verdict of the jurors, who are my judges, ought not to be forced, but should be freely given.
COURT (to Penn): Will you ever be quiet Mr. Penn? If you do not close your mouth, I will have you put out of court.
PENN (ignoring the court): Jurors, remember that we, the Quakers, were by force of arms kept out of our lawful meeting house. That is why we met in the street; however, we did not disturb anyone. To the contrary, we were disturbed.
COURT: Be quiet Mr. Penn, I am warning you.
PENN (continuing to address the jury, unmoved by the court's admonishment): The agreement of 12 men is a verdict in law. If one is given by the jury, I require the clerk to record it, or answer for it at his peril. And if the jury brings in another verdict contradictory to this, I affirm that they are perjured men in law. You are Englishmen, mind your privilege, and do not give away your rights.
BUSHEL: We never will.
NARRATOR: William Penn quiets down. As the jury is about to be led away, one juror comes forward and pleads with the court that he is too infirm to be denied food and drink.
COURT (to the infirm juror): You appear to be as strong as the rest; therefore, you may starve with them.
COURT (to the jury): For the rest of you, resign yourselves to your hard fate. The court will have a verdict, a verdict you shall provide before you are dismissed.
NARRATOR: The court adjourns until seven o'clock the following morning. When court is called to order, the Jury is called in to announce its verdict.
COURT: Are you agreed upon a verdict?
COURT: What say you? Look upon the prisoner at the bar. Is William Penn guilty or not guilty of the crime for which he is indicted?
FOREMAN: He is guilty of speaking in Gracechurch Street.
COURT (bewildered): To an unlawful assembly?
BUSHEL (defiantly): No, my Lord. Not to an unlawful assembly. Our verdict has not changed since last night.
COURT (to Bushel): You are a factious fellow, and you will pay for your defiance.
BUSHEL: I have acted according to my conscience.
COURT: That conscience of yours would cut my throat.
BUSHEL: No, my Lord. It never shall.
COURT: But I will cut yours as soon as I can. You have inspired the jury to insolence. Very well, Mr. Bushel. Know this, though, you are not going anywhere until I have a verdict. Mark my words, I will have a positive verdict, or you will starve for it!
NARRATOR: The jury is sent to deliberate once again. It is brought back into the courtroom later in the day.
COURT: What say you? Is William Penn guilty of the crime for which he stands indicted, or not guilty?
FOREMAN: Guilty of speaking in Gracechurch Street.
COURT (to the jury): Again I ask, why do you allow yourselves to be led by this man (pointing to Bushel)? I desire to find a way to punish you, Mr. Bushel, for your abuse of this court.
PENN (interrupting): Ashamed are the jurors who give verdicts contradictory to their conscience.
CLERK: My Lord, please make Mr. Penn remain quiet.
COURT (to the jailor): Jailor, bring shackles, and stake Mr. Penn to the ground.
PENN (defiantly): Do what you wish.
COURT: Until now, I have never understood why the Spanish permitted the procedures used by the Inquisition. After this trial, I must admit that I do see some merit in them.
NARRATOR: William Penn is silenced. The jury is sent to deliberate, but it is shortly called back into court.
COURT (to the jury): You will be happy to know that courts will not have to put up with such insolence for much longer. Next session, a bill will be going through Parliament that will require juries to render true verdicts, or place themselves outside of the protection of the law. That being said, I realize that we will get nowhere with you. Therefore, I am instructing the clerk to draw up a special verdict, directing that the prisoner be found guilty of unlawfully and tumultuously assembling in disturbance of the peace.
JURY: That is unlawful. We have already agreed to a verdict!
COURT: Your verdict does not mean anything. You play games with the court. Now, listen very carefully. I am giving you one last time to deliberate and reach a true verdict. If you do not, you will starve.
NARRATOR: Court adjourns for the evening. The jurors are taken to Newgate prison for the night. The following day, court reconvenes.
COURT (to the jury): This is your last chance. Look upon the prisoner. What say you? Is William Penn guilty of the crime, or is he not guilty?
FOREMAN: Here is our verdict in writing.
NARRATOR: The paper is delivered to the Lord Chief Justice.
COURT (upon reading the paper): I ask again, is William Penn guilty or not guilty?
FOREMAN: Not guilty, my Lord.
COURT: So say you all?
JURY: Yes, we do.
NARRATOR: Not being satisfied with their verdict, the court polls the jury, having every juror give their verdict when his name is called.
COURT (to the jury): Members of the jury, I am sorry that you followed your own judgments instead of relying upon the advice of this court and upon the facts presented in this case. For giving a false verdict, the court fines each of you 40 marks and orders that you be imprisoned until the fine is paid.
PENN: I demand my liberty, having been found not guilty by the jury.
COURT: Mr. Penn, you shall not have it. You are still in contempt of court. You are to remain imprisoned until you pay the 40 marks levied against you for wearing your hat into court.
PENN: I protest this action. Can any man be fined or imprisoned except upon the judgment of his peers? Does this not violate the fourteenth and twenty-ninth chapters of our great law, the Magna Carta?
COURT (to the jailor): I determine what the law is. Get him out of this court! Take him out! Take him out!
PENN (to the Lord Chief Justice): I argue for the fundamental laws of England; all you argue is that I be taken away. No wonder you hold such a special place in your heart for the Spanish Inquisition!
NARRATOR: Both Penn and his jurors are hauled away to Newgate prison for nonpayment of their fines.
NARRATOR: While in prison, juror Edward Bushel files a writ of habeas corpus with the Court of Common Pleas (a type of appeals court) in England, arguing that his imprisonment is unlawful. A writ of habeas corpus is a legal procedure that allows prisoners to contest the legality of their imprisonment. Chief Justice Vaughan agreed with Bushel and ordered the confined jurors to be released. "Bushel's Case," as it came to be known, is of a great importance in law because it established the concept of jury nullification. In essence, the court reaffirmed the principle that the right to determine the facts of a given case is the sole prerogative of the jury, not the judge. Consequently, even if a jury in a criminal case finds a defendant not guilty when all of the facts might prove guilt to an objective person, courts cannot punish the jurors for rendering what might be considered a false verdict. Courts also cannot try to compel them to change their verdict. Today, jury nullification is sometimes used to make a social statement that the jurors think a particular law is unjust and that people should not be prosecuted for violating it.