- - Monday, December 12, 2016

Historians don’t know very much about 17th century London merchant Edward Bushel. He was neither prominent nor, as far as we know, unusual in other respects. Yet in 1670, with 11 other ordinary Londoners, he put his freedom and livelihood at stake rather than bow to lawless, menacing authority.

Bushel held no state office. He certainly hadn’t chosen the risks that attend a political career. He and his colleagues had merely been called to serve as jurors in a case where the high and mighty badly wanted a particular outcome. Nonetheless, as jury foreman, he followed his conscience, endured official abuse, and with his fellow jurors, ultimately prevailed — establishing in Anglo-American jurisprudence the unequivocal right of juries to render impartial verdicts, a key Sixth Amendment guarantee.

The case they heard was that of William Penn, the future founder of Pennsylvania, and William Mead, both arrested after Penn had spoken to a crowd in London’s Gracechurch Street, the nearby the Quaker meeting house having been closed by the authorities.

From the very first gavel, the court had made its malice towards Penn and Mead obvious. It was customary for defendants to take off their hats before a judge, but it was a religious duty for Quakers to keep them on. When the bailiffs removed the defendants’ hats for them, the judge ordered them replaced, then fined the pair for not being uncovered. After Penn complained that the judge had not specified the law under which he was charged, citing his rights under Magna Carta, the judge had him and Mead hauled out of the courtroom.

But the authorities weren’t able to find anyone able to testify as to what exactly Penn had preached, nor that the crowd was disorderly, nor that Mead had done anything other than listen. The jurors thus brought in a verdict that convicted Penn only of being “guilty of speaking or preaching in Gracechurch Street,” without adding the more damning “to an unlawful assembly.” Mead was acquitted.

The verdicts made the Lord Mayor of London, present at the trial, sputter with rage, while the judge told the jurors that they would not be dismissed unless they delivered a verdict to the court’s liking. Ordered to convene again, and for good measure locked overnight without food, water or a chamber pot, the jurors returned the next day with their verdicts unchanged. Now the mayor threatened to cut jury foreman Bushel’s throat, and the judge wished out loud for an English version of the Inquisition.

For a second night, the jurors were placed under hard confinement. And this finally did change their verdict. Both defendants were acquitted!

With that thumb in his eye, the judge sent Penn and Mead back to jail for “contempt,” and with them the jury, who were told they would be imprisoned until they paid a fine of 40 marks. Eleven complied, but not Bushel, who stayed in the Old Bailey while appealing his case to a higher court.

Law students still read about the decision that court’s chief justice, Sir John Vaughn, delivered: A jury could not be punished simply on account of its verdict.

But it was Bushel’s courageous defiance of official power to which we really owe the principle of jury independence. Though he is almost entirely forgotten, we wouldn’t have had a Sixth Amendment without this uncommon, common man.

Stephen H. Balch, Ph.D., is director of the Texas Tech Institute for the Study of Western Civilization.

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