The Ordeal Of William Penn


Eight of the jury, those who originally would have gone along with the Crown, paid their fines; but the four who had dissented, “phenatique jurymen” as they were dubbed, led by the “pertinaceous” Bushell, brought a writ of habeas corpus in the Court of Common Pleas. Twelve judges sat (showing that the government considered the case of great importance), and agreed without dissent that the prisoners should be discharged, since “there was not cause of fine or imprisonment.”

The opinion was delivered by Sir John Vaughan, Lord Chief Justice. He carefully examined the functions of judges and of juries. A court cannot tell whether the evidence is full and manifest, or doubtful, lame and dark, he said. However manifest the evidence was, if it were not manifest to the jury and they believed it not, it was not a finable fault, not deserving punishment. Why should a juror be imprisoned for abiding by his own oath and integrity? To say that a jury acquitted contrary to the instructions of the court in matter of law is not intelligible. “We must take off this vail and colour of words …” What use would a jury be otherwise? “The Judge’s direction should be hypothetical and not positive … If you find the fact thus—then you are to find for the Plaintiff; but if you find the fact thus, then it is for the Defendant.”


“If it be demanded,” the Chief Justice continued, “what is the Fact? the Judge cannot answer it …” Juries like judges may differ as to the reasons for their result.

The learned justice cited a case where a juryman disagreed with his fellows for two days, and, being asked by the judges if he would agree, said he would die in prison first; whereupon he was committed and the verdict of the eleven was taken. But “upon better advice,” the verdict was quashed, and the dissenting juror discharged without fine. The juror who disagreed in judgment only was not to be fined. To send such a man to prison seemed unworthy of a court. Accordingly, the prisoners were discharged.

Among the several pamphlets about the trial, one, very brief, published in 1719, purported to be written by Penn and Mead. It was now established, the pamphlet pointed out, that “Judges, how great soever they may be, have no right to fine, imprison or punish a jury for not finding a verdict according to the direction of the Court.” “And this, I hope,” the writer concluded, “is sufficient to prove that jurymen may see with their own eyes, hear with their own ears, and make use of their own consciences and understandings in judging the lives, liberties or estates of their fellow subjects—a succinct yet eloquent summary of Vaughan’s opinion.

The anonymously written reply, reflecting the point of view of the Crown, should be noticed. The Answer to the Seditious and Scandalous Pamphlet, Entitled the Tryal of William Penn and William Mead , by A Friend of Justice, written in the biassed language of a sycophant of the government, though addressed to “the impartial and ingenious reader,” supported the prosecution. Penn, the anonymous author said, had blasphemed the Holy Trinity, and in his account of the trial had vilified and contemned the King’s court, and reviled all methods of law and forms of indictments, calling them “detestable juggles.” “Now, gentlemen of the Long Robe,” the author warned the members of the legal profession, “look to yourselves and your Westminster Hall … Farewell then to your great acquisitions, your Yearbook will then be out of date. These are the Beasts of Ephesus that the late Lord Mayor, Recorder, and Bench of Justices have been contending withall … Justices are but cyphers if they cannot correct the corruption or misdemeanor of jurymen.” That “Light” which the Quakers say is within them, is “the Spirit of the Devil, the Father of Lies.”

Penn and Mead, like the four jurymen, had been sent to Newgate for nonpayment of their fines. Immediately Penn wrote his father, who was near death, that he and Mead had been declared not guilty, but that the Mayor and Recorder “might add to their malice, they fined us … for not pulling off our hats and kept us prisoners for the money, An injurious trifle which will blow over, or we shall bring it to the Common Pleas, because it was against law, and not by a jury sessed.” He wanted his father not to worry, but, knowing the elder Penn would want to pay the fine, he could not help adding (in another letter): “I intreat thee not to purchase my liberty … I would rather perish than release myself by so indirect a course as to satiate their revengeful, avaricious appetites. The advantage of such freedom would fall very short of the trouble of accepting it.” He ended, touchingly: “Let not this wicked world disturb thy mind, and whatever shall come to pass I hope in all conditions to prove thy obedient son.” But Sir William had already written to the King, who, along with the Duke of York, promised to continue their favor to young Penn. The Admiral paid the prisoners’ fines, and they were released. At the end of his life Penn’s father, knowing he was looking into the face of death, forgave his son and at last understood him. He was deeply moved by William’s letter. “Son William,” he wrote, “if you and your friends keep to your plain way of preaching, and keep to your plain way of living, you will make an end of the priests to the end of the world. … Bury me by my mother. Live all in love.” Father and son at last had been reconciled.