The Trial of William Penn (1670)
Penn was a leader of the Quakers in London. The sect
was not recognized by the government and was forbidden to
meet in any building for the purpose of worship. In 1670
William Penn held a worship service in a quiet street which
was attended by a peaceful group of fellow Quakers. Penn
and another Quaker, William Mead, were arrested on a charge
of disturbing the King's peace and summoned to stand trial.
As the two men entered the courtroom, a bailiff ordered them
to place their hats, which they had removed, back on their
heads. When they complied, they were called forward and
held in contempt of court for being in the courtroom with
their hats on.
That was only the beginning. Penn demanded to know
under which law they were charged. The court refused to
supply that information and instead referred vaguely to the
common law. When Penn protested that he was entitled to a
specific indictment, he was removed from the presence of the
judge and jury and confined in an enclosed corner of the
room known as the bale-dock. From there, he could neither
confront the witnesses who accused him of preaching to the
Quakers nor ask them questions about their charges against
him.
Several witnesses testified that Penn had preached to a
gathering which included Mead, but one showed some hesitancy
as to whether Mead had been present. The judge turned to
Mead and questioned him directly. In essence, he was asking
Mead if he were guilty. Mead invoked the common-law
privilege against self-incrimination which provoked hostile
comment from the judge. The court then sent Mead to join
Penn in the bale-dock out of the sight of the jury and
witnesses. After the testimony the court instructed the
jury to find the defendants guilty as charged. Penn tried
to protest, but was silenced and again sent out of the
courtroom.
The jury, for its part, proved sympathetic to the two
defendants, and refused the judge's command to find the
defendants guilty. The judge was furious and sent them away
to reconsider. When they returned with the same verdict,
the court criticized the jury's leader, one Bushnell, and
demanded "a verdict that the court will accept, and you
shall be locked up without meat, drink, fire, and tobacco....We
will have a verdict by the help of God or you will
starve for it."
Three more times the jury went out and returned with
the same verdict. Finally, they refused to go out any more.
The judge fined each of them forty marks and ordered them
imprisoned until the fine was paid. Penn and Mead went to
prison anyway for obeying the bailiff's order that they put
on their hats. Later a writ of habeas corpus won freedom
for the jurors while Penn and Mead left jail to come to
America.
Earl Warren, "A Republic, If You Can Keep It", pp. 113-115
Historical note: In 1681 King Charles II of England gave the Pennsylvania
region to William Penn. Pennsylvania means
Penn's Woods. Penn, a Quaker, established the Pennsylvania colony
so that Quakers and other faiths could have religious freedom.
Penn's demand
to know under which law he was charged
Penn: 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.: 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 "Lex non scripta," that which many have
studied 30 or 40 years to know, and would you have me tell you in
a moment?
Penn: Certainly, if the common-law be so hard to understand
it is far from being common.
Trial of William Penn. 6 How. St. Trials (1670) 951, 958.
Penn was refused admittance to the Quaker Meeting Hall and in
protest began to preach in the street. He was indicted under the
common law for taking part in an unlawful and tumultuous
assembly. The jury refused to render a verdict of guilty and
were taken into custody.
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