What we can learn from History

I have just been reading a very interesting court case from 1670, and it just goes to show the power of the Jury and the corruption of the bench. Also shows why the current Government doesn't want trial by jury.

JURY V BENCH
(Taken from "THE LAW'S STRANGEST CASES" by Peter Seddon)

THE OLD BAILEY. LONDON, 1670

It’s certainly unusual for a jury to challenge the authority of the learned legal personages on the bench, but that was exactly what happened in the trial of Penn and Mead in London in 1670. The incident changed the course of legal history in favour of a fair trial for the common man.

On Sunday, 14 August 1670, in Gracechurch Street, London, the English Quaker leader William Penn. then a law scholar, teamed up with a former law student. William Mead. for a spot of gentle street preaching. Nothing manic — it’s just not the Quaker way. A crowd soon gathered and presently a couple of London’s city officers sidled up, as they do, and promptly arrested Penn and Mead in full flow.

The indictment put before the court when their trial began at the Old Bailey on 1 September 1670 was for ‘unlawful assembly’. It spoke dramatically of ‘a tumultuous gathering in contempt of the King’ causing ‘great terror of his people and a gross disturbance of the peace’. In an age of religious intolerance, that was Charles II’s way of saying. ‘Cut out that Quaker stuff right sharp.’

The nine high-ups on the bench, including the Mayor of London, Sam Starling, may have known they were in for a rough ride when Penn and Mead refused to remove their Quaker hats in court. They were duly given a hefty fine.

The trial commenced and the officers who had made the arrests gave evidence of ‘talking’ but certainly not of ‘tumult, violence and terror’.

Penn’s defence was that he had done nothing more than preach peaceably and he demanded to know by what exact instrument he was being prosecuted: ‘Upon common law.’ replied the recorder, Thomas Howel, ‘Then show it me,’ challenged Penn.

When Howel failed utterly to cite particular statutes, Penn suggested that he could surely not be expected to plead ‘to an indictment that has no foundation in law’. Howel. now somewhat hot under the collar. promptly called him ‘a saucy fellow’. The jury looked on. Eyebrows were raised.

Not at all impressed by Penn’s continued argument on a ‘point of law’. the recorder ordered him to be put into a squalid lock-up adjacent the courtroom. That left Mead, rather irregularly. holding the fort.

He plugged away in like manner, but still the recorder was unable to quote the relevant legislation. In the end Meal did it for him. explaining in an aside to the jury that an unlawful assembly ‘is when three or more assemble together to do an unlawful act’. Therefore no unlawful assembly, he insisted, had taken place.

The jury mused. Further eyebrows were raised.

For his insolence. Mead too was put in the lock-up and Penn. buoyed up by events, loudly addressed the jury from there. Doors were quickly slammed shut to put an end to that shenanigan as the recorder summed up. He directed the jury that it was a cast-iron case and they retired to consider on 3 September 1670.

Ninety minutes later. just eight of them trooped back into court. The other four refused to come and they were forcibly dragged in. At that point the rebels’ leader, Edward Bushel, took the unprecedented step for a juror of daring to challenge the bench: ‘We don’t countenance the way this whole matter is conducted, sir.’

After labelling him ‘a troublesome and divisive fellow’. Recorder Howel insisted they retire anew to give ‘a proper ver¬dict’. When they returned later, Foreman Bushel pronounced Penn ‘guilty of speaking in Gracechurch Street’. Nothing more.

The recorder made it clear that the jury were fudging the issue and that they must say ‘guilty’ or ‘not guilty’ without qualification: ‘Go and consider it once more.’ he thundered. Again the jury returned. This rime they found Mead ‘not guilty’ hut again fudged on Penn. The recorder’s response was to lock the jury up for the night, then a standard practice. until they gave a valid verdict. Or, in truth, one he liked. Namely ‘guilty’ full stop.

They emerged tired and hungry at 7 a.m. the next day but with their resolve intact. Their verdict on Penn was unchanged.

Again they were sent out. Again they came back and again Edward Bushel returned the same verdict.

The bench lost patience: ‘I’ll fine you. Edward Bushel,’ raged Recorder Howel; ‘Cut off his nose!’ chipped in the mayor, warming to the fray.

Penn seized his chance to say his bit: ‘What hope is there of ever having justice done when juries are threatened and their verdicts rejected?’

Howel was unmoved: ‘The jury will go out again.’ he warned. ‘and deliver another verdict, else they will starve and will be dragged around the city as in Edward III’s time.’

Out they went for the fourth time and after yet another night locked up without food and water they returned next morning, 5 September 1670, to deliver a historic pronouncement: ‘Our verdict is changed, sir,’ said Foreman Bushel.

The recorder must have thought they’d cracked, but not a bit of it: ‘Both men are not guilty.’ said Bushel.

That signalled the end of a bizarre trial, but not of the story, for the jury was fined heavily and put in Newgate Prison. Penn and Meal were fined for contempt of court and sent to join them but they were freed when Penn’s father paid the fines.

Edward Bushel, meanwhile, the most defiant juror of all time, appealed to the Chief Justice and ably told the full sorry saga of the bench bullies.

Chief Justice Vaughan found entirely in the jury’s favour:

‘A jury must be independently and inscrutably responsible for its verdict fire from any threat from the court,’ he pronounced. before releasing the heroic twelve forthwith.

Bushel and his fellow jurors had stood steadfastly against the worst excesses of kangaroo-court justice and all who have been tried since have something to thank them for. In the hall of London’s Central Criminal Court. the world-famous Old Bailey, is a plaque paying tribute to that trusty jury of 1670, ensuring that this strange but seriously pivotal case will never be forgotten.