Trial By Jury: The Bushel Case and Modern Justice
Posted: Sunday, May 29, 2011
by Jack H. Schick
Edward Bushel, a Londoner, was the leader of a jury that was selected to hear the case against two men arrested for public preaching and unlawful assembly in 1670. The judge informed the jury that they "shall not be dismissed until we have a verdict that the court will accept." When Bushel's jury rendered an acquittal, the judge refused to accept the verdict. They were sent back to 'change their minds.' When they refused to alter their decision, the judge threatened them, saying "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." The jury was confined under those conditions for three day before the trial was declared over. The defendants remained in prison, and the jurors were jailed until they paid the large fines imposed on them for issuing the 'wrong' verdict. Bushel and several others refused to pay and petitioned the Court of Common Pleas for a writ of habeas corpus.* The ultimate decision in "The Bushel Case" changed the concept of Trial by Jury forever, propelling English Law into the modern era. *(See appendix of this article for definition of terms)
Under Norman rule the curia regis, or King's Council was established. It consisted of religious leaders and "tenants-in-chief" (men who had major land holdings given to them by the king). The Council advised the king on legislative matter and it eventually morphed into the English Parliament. Over the next 400 years various courts were created by the Council. The Exchequer of Pleas split from the curia regis in about AD 1190. It had jurisdiction over cases that involved taxes and other obligations to the Crown. Soon after the Court of Common Pleas was established to handle cases that did not involve the Crown. The Court of the King Before the King Himself (Court of the King's Bench) was developed to travel with the monarch and determine common law cases that were brought before the monarch at remote locations. The Court of the Chancery became independent of the curia regis in about 1345. It was primarily established to circumvent the slow pace of decisions and hearings in the Court of Common Pleas, over which it had authority and the power to over rule, since it was an extension of the Lord Chancellor's office. All of these courts existed with over lapping jurisdictions until after the English Civil War in the mid 17thCentury.
The concept of Trial by Jury in Britain developed from a combination of practices by the Scandinavians, Danes and Anglo-Saxons who occupied the island in the early medieval period. Vikings gathered in councils to address crimes committed in the community. Danes appointed a committee of twelve local freemen who swore an oath to investigate crimes without bias and to decide on punishment for criminals. Anglo-Saxons had similar practices. Juries were expected to do their own investigations of the crimes they ruled on and were usually composed of noblemen.
By the 1100's, to provide a sense of legitimacy, the appointing of juries for the resolution of disputes was common practice throughout the, now United Kingdom. The institution of trial by a jury was formally established in English Law in the Magna Carta of AD 1215 which states:
"No free man shall be captured, and imprisoned, or disseized of his freehold, and of his liberties, or of his free customs, or be outlawed, or exiled, or in any way destroyed, nor will we proceed against him by force or proceed against him by arms, but by the lawful judgment of his peers, and or by the law of the land.…None [of this] shall be imposed except by the assessment on oath of reputable men of the neighborhood."
The earliest juries, however, almost always returned verdicts that the judge or Crown demanded. "Packing the jury" by hand-selecting or bribing jurors was standard practice. In addition, there was a procedure called "writ of attaint." The writ could be issued to inquire whether the jury had given a false verdict. In criminal cases the writ was attained by the judge or the Crown. The judge could then retry the case in front of a second, Grand Jury of Attaint, which consisted of 24 freemen.
If the verdict of the first jury was reversed, the crime was punished according to the second verdict. There were also severe repercussions for the original jury who made the "erroneous decision." Judgment against them in Common Law was: "1). They shall lose their liberam legem (position as a freeman), and become ever infamous. 2). That they should forfeit all their goods and chattels. 3). That their lands and tenements should be seized into the king's hands. 4). That their wives and children should be thrown down. 5). That their trees should be rooted up. 6). That their meadows should be ploughed. 7). That their bodies should be cast into gaol." Consequently, juries almost always rendered the verdict that the judge asked them to. Fortunately, in the 1500's, Henry VIII reduced the punishment for contrary verdicts to "perpetual infamy" and a fine.
According to court records, in Gracechurch Street, London, at about eleven o'clock in the morning on August 14, 1670, William Penn, a Quaker gentleman, and William Mead, a linen draper, "with divers other persons to the jurors unknown, to the number of 300…unlawfully and tumultuously did assemble and congregate themselves together. The aforesaid William Penn…did take upon himself to preach and speak to the aforesaid William Mead [and the others]… [and] a long time did remain and continue, in contempt of the said lord the King, and of his law…." The two men were arrested and jailed for violation of the Conventicle Act of 1664, which forbade religious assemblies of more than five people at other than services of the Church of England. William Penn had deliberately incurred the charges. He freely admitted his guilt but challenged "the righteousness of such a law."
After hearing the case, four jurors,** led by Edward Bushel, refused to find the two men guilty, despite instructions from the judge to render "a verdict that the court will accept." The court would only accept a guilty verdict, of course. After further deliberations, the jury found Penn guilty of preaching, but unanimously acquitted him on the charge of speaking to an unlawful assembly. They acquitted Mead of all charges. The judge was outraged and ordered the jurors kept for three days without food, water or toilet facilities in an attempt to force them to bring in a guilty verdict. When this failed the trial was ended. As punishment, the jurors were imprisoned and ordered held until they paid a large fine imposed on them for their contrariness. **(See a list of jurors at the Penn trial in the appendix to this article)
Edward Bushel and several others refused to pay their fines. After several months in prison, Bushel sought a writ of habeas corpus from the Court of Common Pleas demanding to be released from unlawful imprisonment. Chief Justice of the Court of Common Pleas, Sir John Vaughn, initially would not issue the writ, saying that the King's Bench had jurisdiction over ordinary criminal cases. The other Common Pleas justices disagreed and issued the writ anyway. Vaughn did not protest. He had never disagreed with Bushel's claim, only of his court's jurisdiction. He called a court's power to punish a jury "absurd." The jurors were released and their original verdict against Penn and Mead was reinstated. Vaughn's ruling, for the first time in English legal history, forbade judges from punishing jurors for a verdict that was not to their liking. There could no longer be any tampering with or coercion of juries. Judges who did so would be fined and imprisoned themselves.
Arguments over the practices of jury nullification, intimidation and manipulation continued for many more decades. The process of writs of attaint persisted as well, but was finally abolished by the Juries Act of 1825. The settlement of the Bushel Case was a key milestone in the modernization of Court behavior in the English speaking world. In that Age of Enlightenment the conscience and vision of men like William Penn and Chief Justice John Vaughn; and, the insistence on fairness, honesty and integrity in public institutions by men like Edward Bushel signaled the beginning of the modern era in which we expect liberty and justice for all.
United States Constitution: Article III; clause 3. Trial by Jury
The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.
Fifth Amendment to the U.S. Constitution
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property without due process of law; nor shall private property be taken for public use, without just compensation.
Sixth Amendment to the U.S. Constitution
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense .
• Habeas corpus means "you may have the body" in Latin. It is a writ, or legal action through which a prisoner can be released from unlawful detention. The action can be persued by the prisoner or by someone else on his behalf. It has historically been an important legal tool to safeguard individual freedom against arbitrary actions by the state.
• *Excerpt from the Penn/Mead trial naming the jurors:
Cryer: "O Yes! Thomas Veer, Edward Bushel, John Hammond, Charles Milson, Gregory Walklet, John Brightman, William Plumsted, Henry Henley, Thomas Damask, Henry Michel, William Lever, John Baily, you shall well and truly try, and true deliverance make betwixt our sovereign lord king, and the prisoners at the bar, according to your evidence. So help you God"
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