"Saucy" William Penn and the momentum of action
We mentioned yesterday that actions can create momentum, a common observation that is worth repeating and is dramatically evident in the case of William Penn. Acting solely on principle and with no political party to support him, Penn’s civil disobedience set in motion a cascade of effects.
Penn had been a sportsman, a fairly fluent scholar of Greek and Latin, and a good estate manager when, much to his father’s chagrin, he became a member of the Society of Friends. The Quakers, as they were also called, preferred to wait on the "inner light" and refused to attend Anglican church services. As a result they were deprived of offices and jobs.
In 1670, Parliament passed the Conventicle Act, which prohibited sects such as the Friends from gathering for worship. Outraged by this intolerance, Penn tried to deliver a speech on Quaker beliefs in a church in the parish of St Bennet Grace, but was forced outdoors where he was arrested with William Mead, charged with disturbing the King’s Peace, and brought to trial at the Old Bailey.
The case lacked Rumpole as counsel for the defence. It had instead the courage and wit of young Penn -
Penn. I affirm I have broken no law, nor am I Guilty of the indictment that is laid to my charge; . . .I desire you would let me know by what law it is you prosecute me, and upon what law you ground my indictment.
Rec. Upon the common-law.
Penn. Where is that common-law?
Rec. You must not think that I am able to run up so many years, and over so many adjudged cases, which we call common-law, to answer your curiosity.
Penn. This answer I am sure is very short of my question, for if it be common, it should not be so hard to produce.
Rec. Sir, will you plead to your indictment?
Penn. Shall I plead to an Indictment that hath no foundation in law? If it contain that law you say I have broken, why should you decline to produce that law, since it will be impossible for the jury to determine, or agree to bring in their verdict, who have not the law produced, by which they should measure the truth of this indictment, and the guilt, or contrary of my fact?
Rec. You are a saucy fellow; speak to the Indictment.
Penn. I say, it is my place to speak to matter of law; I am arraigned a prisoner; my liberty, which is next to life itself, is now concerned: you are many mouths and ears against me, and if I must not be allowed to make the best of my case, it is hard, I say again, unless you shew me, and the people, the law you ground your indictment upon, I shall take it for granted your proceedings are merely arbitrary.
Obser. At this time several upon the Bench urged hard upon the Prisoner to bear him down.
Rec. The question is, whether you are Guilty of this Indictment?
Penn. The question is not, whether I am Guilty of this Indictment, but whether this Indictment be legal. It is too general and imperfect an answer, to say it is the common-law, unless we knew both where and what it is. For where there is no law, there is no transgression; and that law which is not in being, is so far from being common, that it is no law at all.
The court had Penn gagged, but as the jurors left the courtroom to deliberate, he managed to cry, “Ye are Englishmen, mind your privilege, give not away your right!”
The jurors replied, “Nor will we ever!”
The jury refused to convict. To force them to convict, and that right quickly, the court had the jurors locked in a room without food, water, bathroom facilities or (and this was especially onerous) smoking privileges.
And now we see how the principled courage of one man becomes the courage of two becomes the courage of six, and one action becomes a second and a third. . .and freedom is gained.
Hauled back into court and threatened with jail, the jurors stubbornly refused to convict Penn and Mead. The court had the jurors fined and thrown into Newgate. Eight of them paid the fine, and were released, but four, led by Edward Bushell, stubbornly refused to pay the fine or convict, though Newgate was a urine-soaked, rat-infested hole and they were suffering privations and loss of income.
Bushell (his name was sometimes spelled Bushel) was one of those brave men who receive so little credit in the British history written today. He succeeded in having a writ of habeas corpus taken to the High Court and the Lord Chief Justice, Sir John Vaughn. The High Court studied the writ.
In a remarkable victory for justice and freedom it declared that jurors cannot be forced to convict and cannot be punished for their verdicts. It ordered Penn and Mead and the four jurors released.
Several men acting on their beliefs and resisting all the power of government established the freedom of juries and the principle of jury nullification – when a jury acquits a defendant who has violated a law that the jury believes is unjust or wrong. This is how juries defend the individual citizen against the state and freedom against tyranny.
This is why it is of such deadly concern that under the EU the right to trial by jury in Britain will be destroyed.