Judges, juries, and liberty of conscience
Andrew Murphy writes in the OUP blog:
On this day in 1670: a trial gets underway:
“The question is not whether I am guilty of this indictment, but whether this indictment be legal.” (William Penn, 3 September 1670)
The two defendants had been arrested several weeks earlier while preaching to a crowd in the street, and charged with unlawful assembly and creating a riot. Their trial, slated to begin on 1 September, had been pushed back to 3 September after preliminary wrangling between the judge and the defendants. And so on this date – 246 years ago today – the defendants were called before the bench. They were an unlikely pair, in some ways: the firstborn son of an English knight and naval hero, a month shy of his twenty-sixth birthday, who had studied at (and been ejected from) the most prestigious college in England; and a wealthy London merchant, sixteen years his senior. But by the end of the year, due in large part to the events of the next two days, William Penn and William Mead would become leading spokesmen for the Society of Friends (Quakers) and nationally-known figures in the movement for liberty of conscience, representative institutions, and the rule of law.
The trial was contentious before it even began: as they approached the bench on the morning of 3 September, Penn and Mead found themselves fined for refusing to remove their hats before they had even spoken a word. (Quakers considered doffing the hat to mere humans inappropriate, a gesture that deprived God of the ultimate honor due Him.) During the proceedings, Penn continually objected that the charges were unjust and contrary to English law; he was eventually ejected from the courtroom altogether. Mead continued to object until he, too, was ejected. Despite repeated threats from the judge, and despite being denied food and a toilet all night (at least according to the defendants), the jury found Penn and Mead not guilty, whereon its members were fined for refusing to convict. Penn and Mead, though acquitted, were returned to jail on contempt charges stemming from their refusal to remove their hats at the outset of the trial. Penn’s release came a week later, his fines paid by family or friends so that he could be home with his dying father.
What followed after the trial is arguably as important as what happened during the trial. A purported transcript – entitled The Peoples Ancient and Just Liberties Asserted – appeared shortly after the conclusion of the trial and went through nine printings in the last three months of 1670 alone (with additional printings in 1682, 1696, 1710, and 1725). Though it is a transcript of sorts, Peoples’s presentation of Penn and Mead is clearly a stylized and heroic construction, a morality play in dramatic form, complete with stage directions and narrative insertions, aimed at presenting the defendants as courageous Dissenters railroaded by a persecuting state-church system. It is a work of political theory and political theater that articulates a politics of dissent against arbitrary authority, of clear written law against prosecutions built on vague charges, and of juries as defenders of popular liberties against power-hungry judges. Its publication and ensuing popularity marked William Penn’s emergence as a new voice in the world of English Dissent.
The early modern courtroom was a far cry from our contemporary version of that institution, and it lacked many modern “hallmarks” like the presumption of innocence, exclusion of hearsay evidence, guarantees of defense counsel, the burden of proof on the prosecution, defendants’ right to silence. The judge in the case was none other than . . .