Prior to 1670 it was normal practice for Judges to put a jury in prison without food, water, heating or smokes if they returned a â€˜not guiltyâ€™ verdict when the judge thought they had reached the wrong decision.
Below is an excerpt from the court transcripts of the case that lead to a change in this practice, allowing juries to find the defendant innocent without fear of being punished by the judiciary. Penn is the William Penn that later founded the US State of Pennsylvania:
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.
Rec. You are an impertinent fellow, will you teach the court what law is? It is â€˜Lex non scripta,â€™ that which many have studied 30 or 40 years to know, and would you have me to tell you in a moment?
Penn. Certainly, if the common law be so hard to be understood, it is far from being very common; but if the lord Coke in his Institutes be of any consideration, he tells us, That Common-Law is common right, and that Common Right is the Great Charter-Privileges: confirmed 9 Hen. 3, 29, 25 Edw. 1, 12 Ed. 3, 8 Coke Instit. 2 p, 56.
Rec. Sir, you are a troublesome fellow, and it is not for the honour of the court to suffer you to go on.
Penn. I have asked but one question, and you have not answered me ; though the rights and privileges of every Englishman be concerned in it.
Rec. If I should suffer you to ask questions till to-morrow morning, you would be never the wiser.
Penn. That is according as the answers are.
Rec. Sir, we must not stand to hear you talk all night.
Penn. I design no affront to the court, but to be heard in my just plea: and I must plainly tell you, that if you will deny me Oyer of that law, which you suggest I have broken, you do at once deny me an acknowledged right, and evidence to the whole world your resolution to sacrifice the privileges of Englishmen to your sinister and arbitrary designs.
Rec. Take him away. My lord, if you take not some course with this pestilent fellow, to stop his mouth, we shall not be able to do any thing to night.
Mayor. Take him away, take him away, turn him into the bale-dock.
Penn. These are but so many vain exclamations; is this justice or true judgment? Must I therefore be taken away because I plead for the fundamental laws of England? However, this I leave upon your consciences, who are of the jury (and my sole judges,) that if these ancient fundamental laws, which relate to liberty and property, (and are not limited to particular persuasions in. matters of religion) must not be indispensably maintained and observed, who can say he hath right to the coat upon his back? Certainly our liberties are openly to be invaded, our wives to be ravished, our children slaved, our families ruined, and our estates led away in triumph, by every sturdy beggar and malicious informer, as their trophies, but our (pretended) forfeits for conscience sake. The Lord of Heaven and Earth will be judge between us in this matter.
Rec. Be silent there.
Penn. I am not to be silent in a case wherein I am so much concerned, and not only myself, but many ten thousand families besides.
Obser. They having rudely haled him into the Bale-dock, William Mead they left in court, who spake as followeth.
Mead. You men of the jury, here I do now stand, to answer to an Indictment against me, which is a bundle of stuff, full of lies and falshoods; for therein I am accused that I met â€˜vi & armis illicite & tumultuose:â€™ time was when I had freedom to use a carnal weapon, and then I thought I feared no man; but now I fear the living God, and dare not make use thereof nor hurt any man; nor do I know I demeaned myself as a tumultuous person: I say, I am a peaceable man, therefore it is a very proper question what William Penn demanded in this case, an oyer of the law, on which our Indictment is grounded.
Rec. I have made answer to that already.
Mead, turning his face to the jury, saith,You men of the jury, who are my judges, if the Recorder will not tell you what makes a riot, a rout, or an unlawful assembly, Coke, he that once they called the lord Coke, tells us what makes a riot, a rout and an unlawful assembly. A riot is when three or more, are met together to beat a man, or to enter forcibly into another manâ€™s land, to cut down his grass, his wood or break down his pales.
Obser. Here the Recorder interrupted him, and said â€˜I thank you, sir, that you will tell me what the law is,â€™ scornfully pulling off his hat.
Mead. Thou mayest put on thy hat, I have never a fee for thee now.
Brown. He talks at random, one while an independant, another while some other religion, and now a quaker, and next a papist.
Mead. â€˜Turpe est doctori cum culpa redarguit ipsum.â€™
May. You deserve to have your tongue cut out.
Rec. If you discourse on this manner, I shall take occasion against you.
Mead. Thou didst promise me, I should have fair liberty to be heard? why may I not have the privilege of an Englishman? I am an Englishman, and you might be ashamed of this dealing.
Rec. I look upon you to be an enemy to the laws of England, which ought to be observed and kept, nor are you worthy of such privileges as others have.
Mead. The Lord is judge between me and thee in this matter.
Obser. Upon which they took him away into the Bale-dock, and the Recorder proceeded to give the Jury their charge, as followeth:
Recorder. You have heard what the Indictment is, It is for preaching to the people, and drawing a tumultuous company after them, and Mr. Penn was speaking; if they should not be disturbed, you see they will go on; there are three or four witnesses that have proved this, that he did preach there; that Mr. Mead did allow of it: after this you have heard by substantial witnesses what is said against them : now we are upon the matter of fact, which you are to keep to, and observe, as what hath been fully sworn at your peril.
Obser. The prisoners were put out of the court into the Bale-dock, and the charge given to the jury in their absence, at which W. Penn with a very raised voice, it being a considerable distance from the bench, spake.
Penn. I appeal to the jury who are my Judges, and this great assembly, whether the proceedings of the court are not most arbitrary, and void of all law, in offering to give the jury their charge in the absence of the prisoners ; I say it is directly opposite to, and destructive of the undoubted right of every English prisoner, as Coke, in the 2 Instit. 29. on the chap. of Magna Charta.
Obser. The Recorder being thus unexpectedly lashed for his extra judicial procedure, said with an enraged smile.
Rec. Why, ye are present, you do hear, do you not?
Penn. No thanks to the court, that commanded me into the Bale-dock; and you of the jury, take notice, that I have not been heard, neither can you legally depart the Court before I have been fully heard, having at last ten or twelve material points to offer, in order to invalidate their Indictment.
Rec. Pull that fellow down, pull him down.
Mead. Are these according to the rights and privileges of Englishmen, that we should not be heard, but turned into the Bale-dock, for making our defence, and the jury to have their charge given them in our absence? I say these are barbarous and unjust proceedings.
Rec. Take them away into the Hole: To hear them talk all night as they would, that I think doth not become the honour of the court and I think you (i. e. the jury) yourselves would be tired out, and not have patience to hear them.
Obser. The Jury were commanded up to agree upon their verdict, the prisoners remaining in the stinking hole. After an hour and a halfâ€™s time eight came down agreed, but four remained above; the court sent an officer for them, and they accordingly came down. The Bench used many unworthy threats to the four that dissented; and the Recorder, addressing himself to Bushel, said, â€˜Sir, you are the cause of this disturbance, and manifestly shew yourself an abettor of faction; I shall set a mark upon you, Sir.â€™
J. Robinson. Mr. Bushel, I have known you near this 14 years; you have thrust yourself upon this jury, because you think there is some service for you: I tell you, you deserve to be indicted more than any man that hath been brought to the bar this day.
Bushel. No, sir John, there were threescore before me, and I would willingly have got off, but could not.
Bloodw. I said, when I saw Mr. Bushel, what I see is come to pass, for I knew he would never yield. Mr. Bushel, we know what you are.
May. Sirrah, you are an impudent fellow, I will put a mark upon you.
Obser. They used much menacing language, and behaved themselves very imperiously to the jury, as persons not more void of justice than sober education: After this barbarous usage, they sent them to consider of bringing in their verdict, and after some considerable time they returned to the Court. Silence was called for, and the jury called by their names,
Cler. Are you agreed upon your verdict?
Cler. Who shall speak for you ?
Jury. Our Foreman.
Clerk. Look upon the prisoners at the bar; how say you? Is William Penn Guilty of the matter whereof he stands indicted in manner and form, or Not Guilty?
Foreman. Guilty of speaking in Grace-church street.
Court. Is that all ?
Foreman. That is all I have in commission.
Rec. You had as good say nothing.
May. Was it not an unlawful assembly? You mean he was speaking to a tumult of. people there?
Foreman. My Lord, This is all I had in commission.
Obser. Here some of the jury seemed to buckle to the questions of the Court: upon which, Bushel, Hammond, and some others, opposed themselves, and said, they allowed of no such word as an unlawful assembly in their Verdict; at which the Recorder, Mayor, Robinson and Bloodworth took great occasion to vilify them with most opprobrious language; and this verdict not serving their turns, the Recorder expressed himself thus:
Rec. The law of England will not allow you to part till you have given in your Verdict.
Jury. We have given in our Verdict, and we can give in no other.
Rec. Gentlemen, you have not given in your Verdict, and you had its good say nothing; therefore go and consider it once more, that we may make an end of this troublesome business.
Jury. We desire we may have pen, ink, and paper.
Obser. The Court adjourned for half an hour; which being expired, the Court returns, and the Jury not long after.
The Prisoners were brought to the bar, and the Juryâ€™s names called over.
Clerk. Are you agreed of your Verdict?
Clerk. Who shall speak for you?
Jury. Our Foreman.
Clerk. What say you? Look upon the prisoners: Is William Penn Guilty in manner and form, as he stands indicted, or Not Guilty?
Foreman. Here is our Verdict; holding forth a piece of paper to the clerk of the peace, which follows.
â€˜We the jurors, hereafter named, do find William Penn to be Guilty of speaking or preaching to an assembly, met together in Gracechurch-street, the 14th of August last, 1670, And that William Mead is Not Guilty of the said Indictment.â€™
Foreman Thomas Veer, Edward Bushel, John Hammond, Henry Henley, Charles Milson, Gregory Walklet, John Baily, William Lever, Henry Michel, John Bnghtman, James Damask, Wil. Plumsted.
Obser. This both Mayor and Recorder resented at so high a rate, that they exceeded the bounds of all reason and civility.
Mayor. What, will you be led by such a silly fellow as Bushel? an impudent canting fellow? I warrant you, you shall come no more upon juries in haste: You are a foreman indeed, addressing himself to the foreman, I thought you, had understood your place better.
Recorder. Gentlemen, you shall not be dismissed till we have a verdict that the court will accept; and 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.
Penn. My jury, who are my judges, ought not to be thus menaced; their verdict should be free, and not compelled; the bench ought to wait upon them, but not forestal them. I do desire that justice may be done me, and that the arbitrary resolves of the bench may not be made the measure of my juryâ€™s verdict.
Recorder. Stop that prating fellowâ€™s mouth, or put him out of the court.