AN OLD LAW REPORT.

Dominion, Volume 4, Issue 1159, 21 June 1911, Page 4

AN OLD LAW REPORT.

■ j REX V, PENN; 'HAS IT A MODERN BEARING? (ByJ.Q.X.) This article is mainly an abridgement, of several panes in Hepworth Dixon's "Life of William Penp." On Sunday, August 14, 1670 (when Charles H wns king), William Pcnn and other Quakers repaired, as was their custom, to their meeting-house in Gracechurch Street, London. They found the doors shut and guarded by soldiers. Penn took off his hat, and began to preach. Constables camo forward and arrested him. At the samo time, other constables arrested, in another part of the crowd, ex-Captain AVillintu Mead, an. old Cromwellian soldier. They wero taken before magistrates, and committed, pending their trial, to a sponging-house called the Black Dog, On Thursday, September 1, Penn and Mead wero placed in the dock of the Old Bailey. Seated on the Bench' wero the Recorder of London (presiding), the Lord Mayor, four aldermen, two-'sheriffs, the Lieutenant of the Tower, and an ex- • Lord Mayor. Their names do not matter now. The tommon jury consisted of Thomas Vere, Edward Bushel, John Hammond, Charles Milson, Gregory Walldet, John Brightman, William Plumstead, Henry Henley, Thomas Damask, Henry Michel, William Lever, and John Daily. Tho indictment was to tho effect that Pcnn and Mead and other persons to tho number of 300 unlawfully and tumultnously assembled in Gracechurch Street with force and arms, and that Penn, by agreement between him and Mead, preached and spoke, by reason whereof a great concourse and tumult of people remained there, a long time, against the peace of tho lord the King, his crown and dignity. The accused conducted their own case. Both pleaded "Not Guilty." The Court then adjourned for dinner, but the caso was not resumed until two days later—Saturday, September 3. The first witness, Lieutenant Cook, said he was ordered to go and disperse a meeting in Gracechnifch Street. "I saw Mr. Penn speaking to the people, but I could not hear what was said on account of the noise. I endeavoured to make way to take him, but I could not get near him for the crowd of people; upon which Captain Mead came to me about the kennel of the street and desired me to let him go on, for when he had done he would bring Mr. Penn to me." Court: What number do you think there might be there? Witness: About three or four hundred people. A constable and another witness gave similar evidence. Penn proceeded to defend himself upon the ground of the . Great Charter and the fundamental laws of England. He pressed the .Recorder to say under what law ho was indicted. The Recorder answered: "The common law," and refused to make a more definite statement. Recorder: If I should suffer you to ask questions till to-morrow morning, you would be never the wiser. Penn: That would depend upon theanswers. Recorder: Sir, we must not stand to hear you talk all night. After a little more discussion of t'he samo kind, Penn was forced into the bale-dock, a well-like enclosure at ■ the. far end of tho court-room, where ho could neither see nor be seen. Mead questioned and answered the Bench in like manner and was similarly treated. The Recorder summed up against the accused, and when" Penn protested that the jury had been charged in the absence of the prisoners and.that he had not been fully heard in his own defence, they were both carried to the "Hole ,, in Newgate—a den which Pcnn said tho Lord Mayor would think unfit for his pigs to lie in. Tho jury retired. After an hour and a half eight of them camo back. They said they could not agree; the other four held out against the Court. They wero. brought - in at tho command of the Recorder. . ■ ' The Lieutenant of the Tower (to Juryman Bushel): I know you. You have thrust yourself upon this jury. Bushel: No, Sir John. There were three-score before me on the panel, and I would willingly have got off, but could not. Lieutenant: I tell you, you deserve b> bo indicted moro than any man that has been indicted this day. >• : Lord Mayor: Sirrah, you are an impertinent fellow! I will put a mark on you. Sent back to their room, the jurors wero absent longer than before. They came back at length with the verdict against. Penn, "Guilty of speaking in Gracechurch 'Street." Recorder: You had as good say nothing. Lord Mayor: Was it' not an unlawful assembly? You mean he was speaking to a tumult of people there. Thci foreman (Thomas Vere) explained that on those points tho jury. were not not agreed. The Court then began to argue wifh each juryman separately, but Bushel, Hammond, and others declared that they could uso in their verdict no such term as "unlawful assembly." They were again sent back, but only to reappear with a written verdict, finding William Penn "Guilty of speaking t'o an assembly of people in Gracechurch Street," and acquitting William Mead. Recorder: Gentlemen, you shall iu.t bo • dismissed till you bring in a verdict which tho Court will accept. You shall be locked up, without meat, drink, fire, and tobacco. You shall not think thus to abuse . tho Court. We will have a verdict by , tho help of God, or you shall starve for , *'• Constables were sworn to keep the ;uiy ; in the manner stated. Next day was Sunday, but the Ct-urfc I assombled at seven in the morning. The ■ jury's verdict was unchanged. Confusion . followed, the magistrates threatening and - the jurors standing firm. Again they ; were sent back and for the third time ! they returned with the same verdict. i Recorder: What is this to the purpose? . I say I will have a verdict. You are a . factious fellow. (Scowling at Bushel.) I [ will set a mark on you; and whilst I . have anything to do with tho city, I [ will havo an eyo upon you. f Lord Mayor (to the.other juror;): Have . yon no more wit than to be led by f.uch [ a pitiful fellow? I will cut his noso. [ Penn: It is intolerable that my jury should bo thus menaced. Is this accortl- ; ing to the fundamental laws? Are they i not my proper judges by the Great Chart ter of England? What hope is there ! of over having justice done, when juries j are threatened and their verdicts rejected? . Has not the Lieutenant of the Toirer node . one of them out worse than a tV.on? i Recorder (to the Lord Mayor): My lord, you must take a course with that fellow. Lord Mayor: Stop his mouth. Gaoler, bring fetters, and stake him to the 1 ground. t Penn: Do your will:, I care not for f your fetters. Recorder: Till now I never understood 1 the policy and prudence of the Spaniards . in suffering the Inouisition among them; B and certainly it will never be well with . us till -something like tho Inquisition bo . brought into England. Tho Lord Mayor then told Hie jury f they must retire until they could airreo 3 upon a verdict of prnilty. They refused, . and after being further threatened, were s faken away nnd locked up for another . day and night. Their room was foul, nnd they could not sleep for pain. Starv--5 injj, thirsting, and in fever they spent r tho nieht in anxious tnlk. Somn wan--3 dored in their minds. Some said they must give way or die. On Monday morning, soon after simi rise, the Court-room wns crowded. The twelve jurors, pale: and haegard, were - ainin asked, "How say you?" e Vere: You have nur verdict in writing with our bands subscribed. Recorder: Jt is no verdict. Tho Court will not accept it. '• The verdict being thus refused, nnd tho question again put to Hip jury, Vero replied, "Not guilty." (Movement aud emotion in the Court.) Clerk: Sn.v you all so? Jurors: We do. Not content with this, Hie Court had • every juror's name called separately. Fiach one, distinctly ond without qualification, pronounced. "Not guilty." Recorder: I am sorry, pentlemen, you - have followed your own judgmente anc

opinions rather than the good advice which was given you. God keep my life nut of your hands! But for this tli(> Court fines you forty marks a man, and imprisonment in Newgate till the fines be paid. •' Penn:,Being freed by the jury, I demand tn lie set at'liberty.' Lord Mayor: No. You are in for.your fines. : Penn: Fines. What lines? Lord Mayor: For icontcmpt of Court. Penn: I ask if it be according to the fundamental laws of England that anj Englishman should be fined except by (ho judgment of his peers? Since it expressly ■ contradicts the. 11th and 20th chapters of the Great Charter of England, which says, "No free man ought to bo amerced except by the oath of good and-lawful men of the vicinage." ' Eecorder: Take him away; take him away; take him out of the Court. Tiie two prisoners and the twelve jurors nliko refused to pay the fines, and were removed to Newgate. At Penn's suggestion, the jury brought an action against tho Eecorder for unjust imprison.' nient. The Court of Common Pleas decided in favour of the jury. From tho day when those twelve mcu came out ol Newgate, a British jury has been free to hrin" in a verdict contrary to the opiii' ion of the Court. "Bushel's case," ns il is called, has been described as a landmark in the history of English freedom. A tablet on the site of Newgate conv memorates it. , The fines of Penn and Mead were paid soon afterwards by somo unknown friend. "But, my dear .T.Q.X." says tho gentle reader, "why tell this old etory over My answer is that when holders of high offices in a British colony have- flouted two great principles concerning the administration of justice, I cannot think it untimely to show how a dozon common Englishmen, 240 years ago, valued the integrity of trial by jury.