September 1st-5th marks the 337th anniversary of a remarkable trial in England involving the great William Penn—founder of Pennsylvania and tireless defender of the liberty of conscience.  The year was 1670: Charles II ruled England and had enacted a series of laws known as the Claredon Code which were intended to ensure the supremacy of the Anglican Church in England after the interlude of Oliver Cromwell’s Commonwealth.  Included in the Claredon Code was the Coventicle Act of 1664 which forbade coventicles (meetings for unauthorized worship) of more than 5 people who were not members of the same household.  Its purpose was to outlaw the meeting of dissenting religious groups. 

The Quakers were one such dissenting group, and perhaps the most outspoken among them was Penn.  Penn decided to challenge the Coventicle Act by holding an assembly of Quakers outside Grace Street Church in London.  As soon as he began to preach to the assembly, Penn was arrested and charged with disturbing the peace by fomenting an unlawful and tumultuous assembly.  He was brought to trial on September 1st along with a fellow Quaker who attended the assembly, William Mead. 

At the outset of the trial, when asked whether he was guilty or not guilty of the charge, Penn proclaimed:

We confess ourselves to be so far from recanting, or declining to vindicate the assembling of ourselves, to preach, pray, or worship the eternal, holy, just God, that we declare to all the world that we do believe it to be our indispensable duty to meet incessantly upon so good an account; nor shall all the powers on earth be able to divert us from reverencing and adoring our God, who made us. 

Penn then demanded that the court cite the law upon which the indictment was based and which he was alleged to have violated.  The prosecution declined to do so because it feared that the Coventicle Act might be overturned.  Instead, it blandly replied that the indictment was based “upon the Common-Law,” to which Penn responded, “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 the law which is not in being, is so far from being Common, that it is not law at all.”  This response so infuriated the court that the judges ordered Penn removed from the courtroom while testimony was heard against him.  Before being removed, Penn observed:

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 the jury, (and my sole judges) that if these ancient Fundamental Laws, which relate to Liberty and Property, (and are not limited to particular perswasions [sic] in matters of religion) must not be indispensably maintained and observed, who can say he that right to the coat upon his back?  Certainly our liberties are openly invaded . . . . 

Penn and Mead were removed from the courtroom and the jury was charged with coming to a verdict.  Upon returning to the courtroom and being asked for the verdict, the jury foreman informed the court that they found Penn guilty of speaking at the assembly, but they refused to say it was an unlawful assembly.  This result, to say the least, displeased the court, which told the jury that “you shall not be dismist [sic] till we have a verdict that the Court will accept; and you shall be lock’d 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.”  Despite the court’s threat, the jury held firm to its verdict. 

True to its word, the court kept the jury overnight without food, water, or even access to a bathroom.  The next morning, the court again asked for the jury’s verdict, and again the jury refused to find Penn guilty of inciting an unlawful assembly.  When asked to give an account of his verdict, juror Edward Bushell replied, “I have done according to my conscience.”  Penn asked the court to record the verdict, but the court stated that it was not a proper verdict, to which Penn acerbically replied, “If ‘not guilty’ be not a verdict, then you make of the jury and Magna Charta but a meer nose of wax.”  The court ignored Penn and asked the jury again for its verdict and received the same reply it had previously given. 

When the court declined the verdict again and threatened to hold the jury for another night, Penn asked: “What hope is there of ever having justice done, when juries are threatened, and their verdicts rejected?”  His pointed question fell upon deaf ears.  The court held the jury for another night without food, water, or ordinary accommodations in hopes of persuading them to change their minds, but to no avail.  The next morning the jury rendered a verdict of “not guilty” as to both Penn and Mead.

Realizing that sending the jury back for more deliberations would be a waste of time, the court stated: “Gentlemen, you have followed your own judgments and opinions, rather than the good and wholsome advice which was given you; God keep my Life out of your Hands; but . . . this Court fines you forty Mark a man; and imprisonment till paid.”  After fining the jury, the court also fined Penn for “contempt of court” and ordered Penn and Mead be sent to prison—for wearing hats in the courtroom.  (Penn and Mead had taken off their hats when they first entered the courtroom, but they had been ordered to put them back on by the judge). 

The jurors were sent to Newgate prison where they endured deplorable conditions.  Juror Edward Bushell filed for a writ of Habeas Corpus contending that he had been wrongfully imprisoned.  The Court of Common Pleas agreed and issued the writ, stating that the trial court had been wrong to coerce the jury. 

Penn’s trial constituted the first publicized case of jury nullification: when the jury renders a verdict in spite of the law in order to send a message.  In this case, the jury disapproved of the Coventicle Act and of the court’s treatment of Mead and Penn.  Together, Penn’s trial and the Bushell case established the principle of jury independence as well as the understanding that juries are competent to decide both the facts and the law of the case.  The occasion for these legal landmarks never would have occurred but for William Penn’s stubborn willingness to stand up for his rights—especially the right of religious freedom.