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The Ordeal Of William Penn
Long before he founded his Quaker commonwealth in America, he stood up for religious freedom against the awesome power of the Crown—and put the entire English-speaking world in his debt
April 1964 | Volume 15, Issue 3
As he was dragged out, Penn again appealed to the jury: “You are Englishmen, mind your privilege, give not away Your Rightl” And Veer shouted back: “Nor will we ever do it.” The jurors were sent out to spend the night without meat, drink, fire, or any other accommodation; and “they had not even so much as a chamber pot, tho’ desired,” as the observer sympathetically notes. The court adjourned to the next day, the fourth of the month at seven in the morning, at which time the jury, as before, reported their finding— guilty of speaking in Gracechurch Street . Once more there were passages between jury and Mayor.
The jury, having received a fresh charge from the bench “to extort an unjust Verdict” (according to the observer), went up again, and for the third time the same colloquy took place on their return. Again the Recorder threatened Bushell: “You are a factious fellow, I will set a mark upon you; and whilst I have anything to do in the City, I will have an eye upon you”; and the Mayor, exasperated, lashed the others: “Have you no more wit than to be led by such a pitiful fellow? I will cut his nosel”
Here was another opening for Penn to pour out his angry eloquence. It was intolerable, he protested, that his jury should be thus menaced. Were these men not his judges under the Great Charter of England? What hope was there of ever having proper justice done when verdicts were rejected and juries were threatened with fines, starvation, and ruin to make them reach decisions contrary to their consciences?
In answer the Mayor, obviously hot and frightened as the faces of the crowd pressed against him, his selfcontrol gone, could only cry out: “Stop his mouth, jailor, bring fetters and stake him to the groundl” The Recorder equally betrayed himself: “Till now I never understood the reason of the policy and prudence of the Spaniards, in suffering the Inquisition among them; and certainly it will never be well with us till something like the Spanish Inquisition be in Englandl”
This suggestion of the use of torture was no idle threat. Although torture was unknown in common law, it had been resorted to in England for several centuries as a means of obtaining evidence and for punishment. Torture could still be ordered by the Crown, the Privy Council, or by the Star Chamber, which was not bound by common law. Peine forte et dure might be used when the prisoner would not plead. He was “to be stretched upon his back, to have hot iron laid upon him as much as he could bear, and more, and so to continue, fed upon bad bread and stagnant water through alternate days until he pleaded or died.” An instance of peine occurred as late as 1726, and was said to be common practice at the Old Bailey up to the eighteenth century.
The substance of this practice was doubtless known to Penn’s jury. Half starved but wholly obstinate, they had not yet been broken. Being required to meet again to find another verdict, the observer says, they steadily refused. The Recorder, in great passion, was running off the bench, saying he would sit no longer to hear these things, when the Mayor made him stay, and told the jury to draw up another verdict that they might “bring it in special.” The jury refused—they had set their hands to the verdict, they ought not to be returned to the hole. But the sheriffs were ordered to take the jury up again and sworn to keep them without any accommodation till they brought in their verdict; and the Recorder again threatened them: they should starve until a proper verdict was brought in; “I will have you carted about the city as in Edward the Third’s time.”
They returned once more from Newgate at seven the next morning, weak from such treatment but surely heartened by the angry murmuring of the spectators, who once more had to be silenced by the crier upon pain of imprisonment. On this fourth and final return the jury did bring in a proper verdict: the two prisoners were simply not guilty . The court ordered the jury to be polled, and each man answered “Not guilty,” to the great and doubtless noisy satisfaction of the onlookers. Again the Recorder yielded to the stupidity of his instincts, saying to the jury that he was sorry they had followed their own judgments and opinions rather than the good and wholesome advice which was given them ; and for this contempt the court fined them forty marks a man, and ordered them imprisoned till they paid.
Penn, sensing the drama of the moment, stepped in front of the bench. “I demand my Liberty,” he said, “being freed by my Jury.” The Mayor told him he must first pay his fine for contempt of court in not removing his hat during the trial.
“Take him away, take him away, take him out of the court,” shouted the Recorder.
“I can never urge the fundamental laws of England,” Penn answered, “but you cry ‘take him away, take him away.’ But it is no wonder, since the Spanish Inquisition hath so great place in the Recorder’s heart. God Almighty, who is Just, will judge you for these things.”