On William Penn's trial

Central Question:

We could just say, "Why was William Penn acquitted at his trial, when so many other Quakers were easily convicted under the Conventicle Act?"

My questions (Updating)

• Why the Recorder does not say under what law the indictment was based (the part when they talked about "common law"). Thomas Green said the indictment was based on the Conventicles Act, and the Recorder later did say Penn was charged for preaching to the people and drawing a tumultuous company after them,
• Why the challenge to select Bushell failed? In the original texts, it said one Lord challenged Bushell as a juror for failing to kiss the Bible, but apparently it didn't work. Why?

Reference

• William Penn's trial (I read it on a state trials collection, but here is an online version: https://www.constitution.org/trials/penn/penn-mead.htm)
• Thomas Green, Verdict According to Conscience
• Thomas Green, Lights Hidden Under Bushel's Case
• Craig Horle, The Quakers and the English Legal System 1660-1688
• Vincent Buranelli, The King & The Quaker, A Study of William Penn and James II
• Marry Dunn, William Penn, Politics and Conscience
• Mary Dunn * Richard Dunn, The Wolrd of William Penn
• A Complete collection of state trials and proceedings for high treason and other crimes and misdemeanors : from the earliest period to the year 1783, with notes and other illustrations / Compiled by T.B. Howell item
• Kelyng, John, Sir, A report of divers cases in pleas of the crown, adjudged and determined in the reign of the late King Charles II.
• The Reports and Arguments of that learned Judge Sir John Vaughn
• Joseph Besse, A Collection of the Sufferings of...Quakers, from ... [1650 to 1689].

(https://babel.hathitrust.org/cgi/pt?id=uc2.ark:/13960/t7fr05209&view=1up&seq=305&size=125)

• Alexnder Scherr, The Genesis of Bushell's Case: John Vaughan and Legal Change (Can't find it)
• Sir Samuel Starling, An Answer to the Seditious and Scandalous Pamphlet (Found online version)
• William Penn, Truth Rescued from Imposture (Found online version)
• William Penn, Joseph Besse edit., A collection of the works of William Penn (2 vols) (Read in Burke special collection)

William Penn's Trial

Clerk. Bring William Penn and William Mead to the bar.

Mayor. Sirrah, who bid you put off their hats? put on their hats again.

Obser. Whereupon one of the officers putting the prisoners hats upon their heads (pursuant to the order of the court) brought them to the bar.

Record. Do you know where you are?

Penn. Yes.

Record. Do not you know it is the king's court,

Penn. I know it to be a court, and I suppose it to be the king's court.

Record. Do you not know there is respect due to the court?

Penn. Yes.

Record. Why do you not pay it then?

Penn. I do so.

Record. Why do you not pull off your hat then?

Penn. Because I do not believe that to be any respect.

Record. Well, the court sets forty marks a piece upon your heads, as a fine for your contempt of the court.

Penn. I desire it might be observed, that, we came into the court with our hats off (that is, taken off,) and if they have been put on since, it was by order from the bench; and therefore not we, but the bench should be fined.

Mead. I have a question, to ask the Recorders am I fined also?

Record. Yes.

Mead. I desire the Jury, and all people to take notice of this injustice of the recorder: Who spake to me to pull off my hat? and yet hath he put a fine upon my head. O fear the Lord, and dread his power, and yield to the guidance of his holy spirit, for he is not far from every one of you."_

Introduction

I was led into the survey of William Penn's trial by this dramatic conversation about Penn's hat. For a US law student who just had a summer intern in a Federal District Court, such "saucy" conversation in a "high-crime" trial is unimaginable and definitely amusing, therefore I decided to dive deeper into it and here in this short article, I present some of my research results and thoughts. There is much to be said about this milestone trial. The central question this article wants to shed some light on is what contributed to the acquittal of William Penn, when most other trials of Quakers ended up with guilty verdict and imprisonment. I will start with a background section about why Quakers like William Penn are being persecuted and how they are facing the tyranny of Judges who dictate the jury's verdict. Then I will briefly describe Penn's trial and put in comparison some other trials from 1660-1670. In the analysis section, I will try to explain some reasons I found convincing, including the crown's attitude, the 1theoretical foundation laid by Quakers, and most importantly, the conscience of the jurors and the charisma of Penn. I think in the end, what I learned from this researching project is the importance of every individual juror; although we always focus on a jury as a whole, we should keep in mind that it is made of individual human beings, that each one's conscience matters.

Background

It shouldn't be too surprising that Quakers as Nonconformists are not so popular in the eyes of legal enforcement. However, I think it will be helpful to start this article with some additional background knowledge about why, more specifically, were Quakers prosecuted so often. The first reason, as shown in the excerpt, is that Quakers are unwilling to take off their hats in the court. Trivial it may appear now, such behavior could be intolerable in 17th century England. It was a social customary at that time that people would doff their hats to acknowledge others passing by, and not wearing the hat in a church or court, particularly not in the presence of superiors. Quakers, due to their religious beliefs that I will not explain more here, did not follow those customs; they use dress simply, use words like "thou" and "thee" casually, and refuse to take off their hats in front of any judge or magistrate. While Charles II may tolerate William Penn's hat by taking off his own and tease that only one person may wear a hat in the palace, most authorities did not such behaviors lightly. To authorities, such actions were not simply innocent eccentricity, as they have historically stand for a social protest. The feeling of being disrespected and the concern of potential social disturbances as Quakers group grew was therefore a big reason why Quakers were so unpopular among Judges and other law enforcement.

However, Quakers were certainly not being widely persecuted because of their eccentric behaviors alone. Quakers' belief in the inner light led to some other actions that are more directly against law, including refusal to take an oath and preaching on the streets. The most trouble-causing action is Quakers' insistence in holding their own meetings. For Quakers, meetings for their worship are essential for spreading the words of the Light and for providing the support each Quaker needs. They also insist these meetings be public so that they serve both as a means to encourage new converts and as a witness to their faith. Such public meeting and preaching of the idea that each one has his own connection to God is certainly beyond unwelcome. The persecution of Quakers began with the 1662 Quaker Act and reached its height in 1664 when Parliament passed the Conventicle Act, the legal basis on which most indictments to Quakers were based. The Act was designed to prevent and suppress seditious conventicles under the pretense of religion, making most nonconformists' meeting unlawful.

Now we know why Quakers are being prosecuted, another background point I want to make is the tyranny of law Quakers were facing at that time. Whether Quakers' meetings were really against the Conventicle Act was actually a controversial question. The Act's preamble by the Parliament declared that the act was designed to prevent "seditious" conventicles, but the texts of the Act proscribed meetings "under pretense or colour of religion", which does not include the word "seditious". The bench took the Act literally; instructions given by Judges state that a conviction does not require proof of a seditious purpose, which is presumed by the law. Jury should be able to give a verdict with the evidence that defendants were at an assembly unless they can prove such meeting was not under the color of religion or not nonconformist. We can see this from Judge Orlando Bridgeman's instruction in 1664 Hertford summer assizes:"[You] are not to expect a plain, punctual evidence against them for anything they said or did at their meeting... [I]f you find, or believe in your hearts that they were in the meeting, under colour of religion in their way, though they sat still only, and looked upon each other, seeing they cannot say what they did there, it was an unlawful meeting...And you must find the bill, for you must have respect to the meaning and intent of the law..." Friends, as you can imagine, plead the jury to consider the true intent of the Act. In a tract named Jury-man charged, Quakers gave their legal defense. "The intention of the Parliament is manifest from the title and preface of the Act: the title, an Act to prevent and suppress seditious conventicles: but what sedition in worshiping God?" Quakers urged the jury against the instruction that verdict can be given with proof of religious meeting alone, as that will in effect give the Judge the power to decide whether the meeting was seditious. "But will this satisfy you sir? Can you take a passionate and testy judge's word as your infalliable director in so many most difficult controversies as must in this cas be decided? Will you pin your faith upon the judge's sleeve in matters of religion (of which perhaps he knows no more than he can find in the statute book)?"

While Quakers could defend themselves with the pen and make all the legal arguments against the bench, in trials they could only bear the tyranny of the judges. At a time when there was no appeal procedure and no fine or other punishment for Judge's misconduct, Judges' enjoyed a dictating power. We can already get a taste of how tyrannical a Judge can be from the excerpt, when the Judge literally ordered the hat to be put on Penn's head and then fined him for contempt of the court. Such a trick was actually a common practice; in a more outrageous case, Judge Hyde did the same thing to a Quaker who was simply standing by and hearing the trial; after perceiving him to be a Quaker, Judge Hide ordered to bring the man to the bar with the hat off, ordered the hat to be put on, then fined the man for contempt of the court for not taking off his hat. What really needs to be stressed is judges' dictation over the jury. Although the instruction given by a judge can be questioned as we see above, although some jurors may entertain serious doubt about whether the defendant Quakers' meeting was against the Conventicle Act, in most if not all Quakers trials Judge will dictate jurors to give a guilty verdict with the threat to starve them or fine them. In the next section I will present Penn's and some other tirals in a fuller picture, but it is important to know as background knowledge that in most Quaker trials, Judges would force the jury to give a guilty verdict.

Trials

Now with the background knowledge about how unpopular Quakers were and how tyrannical Judges were in Quakers' trial, we should get back to our central question: why was William Penn acquitted at his trial, when so many other Quakers were easily convicted under the Conventicle Act? To analyze this question, I think it is necessary to give a fuller picture or Penn's trial and put two more Quaker trials from 1664 in comparison.

Penn's Trial

On August 14th 1670, William Penn and William Mead were addressing a large crowd at Gracehurch Street. They were soon arrested under the warrants signed by the Lord Mayor, Sir Samuel Starling. According to the warrant, Penn and Mead were arrested for "preaching seditiously and causing a great tumult of people ... to be gathered riotously and routously." (pg. 222, fn 91). They were charged under the Conventicles Act; both demanded a jury trial. In September 1670, they were tried in London, the Old Bailey. The ludicrous hat show was the beginning of the trial, which escalated into a drama out of control. The Recorder(Howel) called three witnesses, who all basically testified that they saw Penn and Mead and a large group of people at Gracehurch Street at that time, but did not hear what they said. Penn did not really question or object those witnesses; they actually both admitted with pride that they assembled to preach and pray. Penn believed that the Crown's evidence, even factually true, did not make their acts unlawful:

Penn. I affirm I have broken no law, nor am I Guilty of the indictment that is laid to my charge; and to the end the bench, the jury, and myself, with these that hear us, may have a more direct understanding of this procedure, 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. Sir, will you plead to your indictment?

Penn. Shall I plead to an Indictment that hath no foundation in law? If it contain that law you say I have broken, why should you decline to produce that law, since it will be impossible for the jury to determine, or agree to bring in their verdict, who have not the law produced, by which they should measure the truth of this indictment, and the guilt, or contrary of my fact?

Rec. You are a saucy fellow, speak to the Indictment.

Penn. I say, it is my place to speak to matter of law; I am arraigned a prisoner; my liberty, which is next to life itself, is now concerned: you are many mouths and ears against me, and if I must not be allowed to make the best of my case, it is hard, I say again, unless you shew me, and the people, the law you ground your indictment upon, I shall take it for granted your proceedings are merely arbitrary.

The Recorder did not give an answer in the end, and under the pressure of Penn's persistent demand and sarcastic challenge, the Recorder ordered Penn be taken back to the bale-dock. Here Penn directly addressed to the jury for the first time:

Penn. These are but so many vain exclamations; is this justice or true judgment? Must I therefore be taken away because I plead for the fundamental laws of England? However, this I leave upon your consciences, who are of the jury (and my sole judges,) that if these ancient fundamental laws, which relate to liberty and property, (and are not limited to particular persuasions in. matters of religion) must not be indispensably maintained and observed, who can say he hath right to the coat upon his back? Certainly our liberties are openly to be invaded, our wives to be ravished, our children slaved, our families ruined, and our estates led away in triumph, by every sturdy beggar and malicious informer, as their trophies, but our (pretended) forfeits for conscience sake. The Lord of Heaven and Earth will be judge between us in this matter.

After Mead did a similar thing and was taken to the dock, the Recorder gave an instruction to the jury, that Penn and Mead were indicted for "preaching to the people, and drawing a tumultuous company after them". Penn, shouting from the dock, addressed to the jury that he was not heard for the indictment, and reminded the jury that they can not give a verdict till he was heard and made his defense; the Recorder, couldn't bear Penn anymore, ordered Penn be taken to the Hole. After "some considerable time", the jury gave its first verdict, that Penn was guilty of speaking in Grace-church street, but not guilty of unlawful assembly causing a riot. The Recorder would not accept such a verdict (for what is worth, a not guilty verdict is not a verdict):

Rec. The law of England will not allow you to part till you have given in your Verdict.

Jury. We have given in our Verdict, and we can give in no other.

Rec. Gentlemen, you have not given in your Verdict, and you had its good say nothing; therefore go and consider it once more, that we may make an end of this troublesome business.

The jury returned with the second verdict after one hour and a half, which was the same: guilty of speaking or preaching to an assembly; not a word about it being unlawful. The Court's reaction was not hard to imagine: "both Mayor and Recorder resented at so high a rate, that they exceeded the bounds of all reason and civility." The Recorder made a threat which was repeated many times later:

Recorder. Gentlemen, you shall not be dismissed till we have a verdict that the court will accept; and 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.

Penn took the chance to speak for the jurors who are his true judges, that they can not be threatened. He then made his defense and urged the jury not give in:

Penn. The agreement of 12 men is a verdict in law, and such a one being given by the jury, I require the clerk of the peace to record it, as he will answer it at his peril. And if the jury bring in another verdict contradictory to this, I affirm they are perjured men in law; And looking upon the jury, said, You are Englishmen, mind your privilege, give not away your right.

Penn's speech certainly did its work. The jury was starved for a night, and the next day it gave the same verdict. Then it was sent back to give another verdict; the same result. After repeating for two more times, the jury gave an affirmative not guilty verdict, and the Recorder, couldn't bear with it anymore, accepted the verdict but fined and imprisoned all the jurors; Penn in the end was not released either as he was sent back to prison till he pays the fines for contempt of the Court.

More Trials of Quakers

1. The first trial I want to cite here in comparison is the one taken place right after Penn's trial. This trial will serve as a great comparison because the trial was almost exactly the same but a different verdict was reached. Another group of Quakers was tried for the same facts. At the beginning, the Recorder performed the same ridiculous hat show again, forcing the prisoners to put on their hats and fined them for 20 Marks. Because the first jury panel was imprisoned, a new panel was summoned by the Sheirff. "the Recorder, perusing the panel of the last summoned jury, gave directions to the clerk to call them over, who, it was observed, picked here and there such persons who were most likely to answer the design of the bench, not calling the panel in direct course or order as usual." All the prisoners kept asking by what law can the court pick a different jury, and Recorder, failing to produce a legal answer, in the end "in a great rage told one of the prisoners, that he should be gagged, and deserved to have his tongue bor'd through with a red-bot iron, telling them it should suffice that the Court was of opinion against them, and did overrule them."

The Court then proceeded. The Jury was sworn, the indictment was read, and some witnesses produced evidence that they saw prisoners among the assembly of people in Grace-church street. The jury required the Recorder to produce to the jury upon what law they were indicted; the Recorder answered "that he was not bound to produce the law, for it was lex non scripta." Prisoners further argued that they had alway been peaceful, and the law against riots was never made against them but to those who disturb the peace. The Recorder answered that the prisoners were worse than those rioters, that they were "a stubborn and dangerous people". The Court disregarded the prisoners' further arguments and threw them to the dock. In the prisoners' absence, the Recorder gave the charge to the jury, telling them that "they were a refractory people, delighting in deeds of darkness, and they must be suppressed, and that upon the indictment they must bring them in guilty". The jury, as Besse describes, did give the guilty verdict as it was prepared for such purpose.

1. The second trial was one in 1664, by Judge Orlando Bridgeman. (pg. 244)
2. The last one was another trial in 1664. Found not guilty (pg. 400)

Potentially useful citations

3. Horle --Why Quakers being persecuted, pg. 6-10. The reasons I see most related in Penn's case is Quaker's defiance against the authorities and customs, therefore the fun part about the hat in Penn's trial and why legal officials don't like Quakers.

--pg. 111

• Jury not cooperating, Judge threating, Jury cooperated. Court give reward to jury? Check if anything from Thomas Leader.

4. Besse, --Pg. 401:

• Indictment "...present at a certain unlawful assembly, under colour or pretense of exercise of religion, in other manner that is allowed by the practice of the church of England...in contempt of the law, and contrary to the peace of our lord of the King...."
• Jury fund them "guilty of meeting, but not of Fact". Jury said "there was evidence that they met, therefore we say guilty of meeting, but no evidence to prove what they did there, therefore we say not guilty of meeting contrary to the liturgy of the church of England."
• Jury said respect for those meeting worshiping the God. Judge unpleased but several jurors refused to change. "My lord, I am content, any wounding, but the wounding of my conscience."

--pg. 244

• indicted on Conventicle Act. Witness testified meeting at certain time and place, but heard none of them speak or do anything.
• Prisoners said they transgressed no law, Judge replied (holding Conventicle Act) that they transgressed this law, and instructed jury:" You are not to expect plain punctural evidence of antyhing; a bare proof of their being met is sufficient for their conviction. It is not your business to enter into the meaning of the law, but singly to determine the fact of the meeting."
• Jury found prisoners guilty.

--pg. 403

• I found in one trial Judge Hide, perceiving the prisoner to be a Quaker, who came in with hat off, ordered the hat to be put on, and then fined him for not taking hat off (So it is a common exercise huh, side note says "an offense on purpose to bu punished)

--pg. 425

• Right after Penn's trial, another grp of Quakers tried for the same facts. Court empaneled another jury (intentionally selected those who would like to listen to the court). Still lacking evidence of causing riot, but jury convicted the prisoners.

5. Mary Dunn, William Penn, Politics and Conscience --pg 5. Penn had legal training, which helped a lot in his later imprisonment and in trials.

--pg. 6 "This in 1666 was William Penn. He was educated, traveled, and perhaps excitable. He was reported handsome and personable, and was winning friendly attention from his father's aristocratic and influential friends...

--pg. 7. Charles II, crown's tolerance to nonconformists. However such indulgence was opposed by Parliament; wasn't really helpful "Vengeful for the past, fearful for the future, righteous in the service of the Lord, and jelous of its prerogatives, Parliament responded to every rising and rumor with more legislation designed to suppress dissent. "

--pg. 10. Penn because of his status, became a famous advocate for Quakers

--pg. 12. Meeting of sufferings providing legal counsel and support to Quakers

--pg. 19. Pennn was not only carrying on his religious exercises despite the law and according to conscience ... he was also anxious to test the laws under which they were persecuted; ensuing trials, it was hoped, would bring redress and, given sufficiecnt friendly verdicts, overturn persecution itself.

-- DaihuiMeng - 04 Nov 2019

These are all the necessary parts, loose in a bag. Now it is time for a draft that writes the history, as narrative combined with analysis. This is the literary exercise: story-telling for engaged readers eager to grasp both details and larger meanings. Excelsior.