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On William Penn's trial | | | It may seem obvious that Nonconformists like Quakers were not so popular in a Christen society. However, it will be helpful to start this article with some additional background knowledge about why, more specifically, were Quakers persecuted massively. To start with, we have already seen one reason from the excerpt: Quakers were unwilling to take off their hats in the court. Trivial it may appear, such behavior was offensive in 17th century England. It was a social customary at that time that people would doff their hats to acknowledge others passing by, and would not wear a hat in a church or court, particularly not in the presence of superiors. Quakers, due to their religious beliefs of equality, did not follow many such customs; they dressed simply, used plain language like "thou/thee" casually, and refused 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 take such behaviors lightly. To them, such actions were not simply innocent eccentricity but behaviors that historically stood for a social protest. The feeling of being disrespected and the concern of potential social disturbances as the size of Quakers grew was therefore a big reason why Quakers were so unpopular among Judges and other people of high social status. | |
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< | But of course, Quakers were not being widely persecuted only because they kept their hats on their heads. Quakers' belief in the inner light led to some certain actions that were plainly against the law, including refusal to take an oath, preaching on the streets, and most trouble-causing one: their insistence in holding their own meetings. For Quakers, meetings for their worship were essential for spreading the words of the Light and for providing the support each Quaker needed. Quakers also insisted these meetings be public so that they could serve both as a means to encourage new converts and as a witness to their faith. Such public meetings and preaching of the idea that each person has his own connection to God were certainly intolerable to those in power. The persecution of Quakers began with the 1662 Quakers Act and reached its height in 1664 when Parliament passed the Conventicle Act. The Act was designed to prevent and suppress seditious conventicles under the pretense of religion; it made most nonconformists' meetings unlawful and it was the legal basis on which most indictments to Quakers were based. | >
> | But of course, Quakers were not being widely persecuted only because they kept their hats on their heads. Quakers' belief in the inner light led to some certain actions that were plainly against the law, including refusal to take an oath, preaching on the streets, and the most trouble-causing one: insistence in holding their own meetings. For Quakers, meetings for their worship were essential for spreading the words of the Light and for providing the support each Quaker needed. Quakers also insisted these meetings be public so that they could serve both as a means to encourage new converts and as a witness to their faith. Such public meetings and preaching of the idea that each person has his own connection to God were certainly intolerable to those in power. The persecution of Quakers began with the 1662 Quakers Act and reached its height in 1664 when Parliament passed the Conventicle Act. The Act was designed to prevent and suppress seditious conventicles under the pretense of religion; it made most nonconformists' meetings unlawful and it was the legal basis on which most indictments to Quakers were based. | | | The real trouble for Quakers came from the tyranny of the law that followed those indictments. Whether Quakers' meetings were really against the Conventicle Act was actually not a black or white 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 did not include the word "seditious". The bench took the Act literally; instructions given by Judges stated that a conviction does not require proof of a seditious purpose which was presumed by the law. A jury should be able to give a verdict simply with the evidence that defendants were at an assembly, unless defendants could prove otherwise. 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..."
Quakers, in their defense, pleaded the jury to consider the true intent of the Act. In a tract named Jury-man charged, Quakers made their arguments: "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 the evidence of a religious meeting alone, as that will in effect give a 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 infallible director in so many most difficult controversies as must in this case 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)?" | |
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< | While Quakers were defending themselves with their pen and making 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, no counsel for defendants, and no fine or other punishment for a judge's misconduct, judges enjoyed an unrestraint discretionary 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 ludicrous punishment was actually a common practice; in a more outrageous case, Judge Hyde did the same thing to a Quaker who was simply standing by listening to a trial; after perceiving him to be a Quaker, Judge Hide ordered a Sheriff to bring the man to the bar with the hat off, then ordered the hat to be put on and fined the man. These tricks were only some superficial manifestation of judges' power; the real tyranny of judges was their control over the jury. Although jurors may question the instruction given by a judge and may entertain serious doubts about whether the defendants' meeting was against the Conventicle Act, in most if not all trials of Quakers, the judge would force jurors to give a guilty verdict by persuasion or threats. In the end, the result of a trial always ended up depending on the malleability of jurors' conscience. | >
> | While Quakers were defending themselves with their pen and making all the legal arguments against the bench in public, in trials they could only bear the tyranny of the judges. At a time when there was no appeal procedure, no counsel for defendants, and no fine or other punishment for a judge's misconduct, judges enjoyed an unrestraint discretionary power. We can already get a taste of how tyrannical it 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 ludicrous punishment was actually a common practice; in a more outrageous case, Judge Hyde did the same thing to a Quaker who was simply standing by listening to a trial; after perceiving him to be a Quaker, Judge Hide ordered a Sheriff to bring the man to the bar with the hat off, then ordered the hat to be put on and fined the man. These tricks were only some superficial manifestation of judges' power; the real tyranny was their control over the jury. Although jurors may question the instruction given by a judge and may entertain serious doubts about whether the defendants' meeting was against the Conventicle Act, in most if not all trials of Quakers, the judge would force jurors to give a guilty verdict by persuasion or threats. In the end, the result of a trial always ended up depending on the malleability of jurors' conscience. | | |
Trials | | | Penn's Trial | |
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< | On August 14th 1670, William Penn and William Mead were addressing a large crowd at Gracechurch 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 then escalated into a drama out of control. The Recorder(Howel) called three witnesses, who all testified that they saw Penn and Mead and a large group of people at Gracechurch Street at that time, but did not hear what they said. Penn did not really question or object those witnesses; he actually admitted with pride that he assembled to preach and pray. Penn believed that the Crown's evidence, even factually true, did not make his acts unlawful; he then demanded the Court to produce the law on which the indictment against him was based: | >
> | On August 14th 1670, William Penn and William Mead were addressing a large crowd at Gracechurch 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." 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 then escalated into a drama out of control. The Recorder(Howel) called three witnesses, who all testified that they saw Penn and Mead and a large group of people at Gracechurch Street at that time, but did not hear what they said. Penn did not really question or object those witnesses; he actually admitted with pride that he assembled to preach and pray. Penn believed that the Crown's evidence, even factually true, did not make his acts unlawful; he then demanded the Court to produce the law on which the indictment against him was based: | | | 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. | | |
Analysis | |
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< | Weaving around these trials, the rest of this article aims to lay out some reasons/factors that led to Penn's acquittal. The first reason is the Crown's attitude, i.e. Charles II's indulgence to dissenters. Although this reason certainly did not lead to the specific success of Penn in his trial, it is a very important background reason that made any such success more likely. The second reason was William Penn's personal traits, including his eloquence and personal charisma. The last reason but the most important reason is be the jury, both as an entity and as those composing individual jurors whose attitude sometimes can shape the legal development. | >
> | Weaving around these trials, the rest of this article aims to lay out some reasons/factors that led to Penn's acquittal. The first reason is the Crown's attitude, i.e. Charles II's indulgence to dissenters. Although this reason certainly did not lead to the specific success of Penn in his trial, it is a very important background reason that made any such success likely. The second reason was William Penn's personal traits, including his eloquence and personal charisma. The last reason but the most important reason is the jury, both as an entity and as those composing individual jurors whose conscience sometimes can shape the legal history. | | | Charles II's indulgence
When Charles II was restored, he took an attitude of tolerance to all of the non-conformists, hoping to prevent religion from ever again being the cause of civil disturbances. For example, in January 1663, Charles ordered the release from Newgate of all those who had been imprisoned for unlawful meetings; two weeks later, he released those in Southward who were kept for unlawful assembly to the disturbance of the peace, except those being "dangerously seditious". In one of the meetings with congregational ministers, he said:" I am against persecution for religion and shall be as long as I live. I would have no man punished for that that he cannot help. No man can believe but as brought to it from God." | |
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< | However, Charles's indulgence was not so effective for political reasons. His declarations of indulgence became a vehicle testing the balance of power between the King and the Parliament. The attitude of the Parliament to the dissenters was more than unfavorable. Private meetings of large groups of people who believe they have individual access to God were dangerous and disturbing to those Lords and Justices; they sincerely believed that those Quakers were dangerous people. Parliament therefore protested that Charles' indulgence policy exceeded King's powers. "Vengeful for the past, fearful for the future, righteous in the service of the Lord, and jealous of its prerogatives, Parliament responded to every rising and rumor with more legislation designed to suppress dissent." Charles, however, could not push his indulgence policy too much against such opposition of the Parliament because he was aware of the constitutional limit of his power, and facing the warfare and the need for money, he had to be cautious. | >
> | However, Charles' indulgence was not so effective for political reasons. His declarations of indulgence became a vehicle testing the balance of power between the King and the Parliament. The attitude of the Parliament to the dissenters was more than unfavorable. Private meetings of large groups of people who believe they have individual access to God were dangerous and disturbing to those Lords and Justices; they sincerely believed that those Quakers were dangerous people. Parliament therefore protested that Charles' indulgence policy exceeded King's powers. "Vengeful for the past, fearful for the future, righteous in the service of the Lord, and jealous of its prerogatives, Parliament responded to every rising and rumor with more legislation designed to suppress dissent." Charles, however, could not push his indulgence policy too much against such opposition of the Parliament because he was aware of the constitutional limit of his power, and facing the warfare and the need for money, he had to be cautious. | | | | |
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< | Although King's indulgence proved to be very elusive, Charles' attitude still could have been one of the big reasons that made Penn's success possible because King's bench would consider King's policy after all. This might not be a specific reason for Penn's success, but it is a background contributor that supported Quakers like Penn to get an acquittal. | >
> | Although King's indulgence proved to be very elusive, Charles' attitude still was one of the big reasons that made Penn's success possible because King's bench would consider King's policy after all. Had Charles never expressed such an attitude, law enforcement could have been more dictating and leave Quakers no chance to get an acquittal. | | | Penn's charisma | |
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< | Speaking of reasons for Penn's success in getting the acquittal, his personal traits was for sure one big reason, if not the reason. As shown Penn's trial, criminal trials in 17th century England were not like trials today. First, defendants did not have trained legal counsel who would speak for them, and second, the court proceeding lacked the seriousness and sacredness; on the contrary, especially for trials of Quakers, the proceedings "often degenerated into a raucous, public brawl", in which the defendant's personal charisma would more heavily influence the result. William Penn happened to be the most eloquent Quaker defendant who did not need a counsel and the most charismatic whom everyone liked. | >
> | Speaking of reasons for Penn's success in getting the acquittal, his personal traits was for sure another big reason, if not the reason. As shown in Penn's trial, criminal trials in 17th century England were not like trials today. First, defendants did not have trained legal counsel who would speak for them, and second, the court proceeding lacked the seriousness and sacredness; on the contrary, especially for trials of Quakers, the proceedings "often degenerated into a raucous, public brawl", in which the defendant's personal charisma would more heavily influence the result. William Penn happened to be the most eloquent Quaker defendant who did not need a counsel and the most charismatic whom everyone liked. | | | | |
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< | In Penn's earliest formal education he learned Latin, Greek, and math. He entered Oxford at the age of 16, although soon sent out for nonconformity. Then Penn was sent to the court of Louis XIV in France. When Penn returned to London in 1664 (when he was 20), he was set to learn the law in Lincoln's Inn. In 1666 he was sent to Ireland to take care of Penn estates, where he proved to be "sharp in his transaction concerning the estates, but graceful in local society". Therefore, by the time when he was tried in 1670, he was a man traveled and educated, and it would not be an exaggeration to claim that he was potentially the most eloquent Quaker defendant one could conceive at that time. His legal training and his eloquence were clearly manifested in the trial we read, in his personal defense when he later became a frequent guest of the prison, and in his later works speaking for all Quakers. | >
> | In Penn's earliest formal education he learned Latin, Greek, and math. He entered Oxford at the age of 16, although soon sent out for nonconformity. Then Penn was sent to the court of Louis XIV in France. When Penn returned to London in 1664 (when he was 20), he was set to learn the law in Lincoln's Inn. In 1666 he was sent to Ireland to take care of Penn estates, where he proved to be "sharp in his transaction concerning the estates, but graceful in local society". Therefore, by the time when he was tried in 1670, he was a man traveled and educated, and it would not be an exaggeration to claim that he was potentially the most eloquent Quaker defendant one could conceive at that time. His legal training and his eloquence were clearly manifested in the excerpt above, in his personal defense when he later became a frequent guest of the prison, and in his later works speaking for all Quakers. | | | | |
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< | Besides being a defendant who did not need counsel, William Penn was also a charismatic man everyone likes. If it can be arguable that Penn was the most eloquent Quaker defendant, it was an undeniable fact that Penn was the Quaker who enjoyed the highest social status. As the son of the Admiral Willam Penn, Penn junior, as introduced above, received a first-class education and was acquainted with so many Dukes and Lords, even the King himself. The audience and jury might find most Quakers in other trials as ignoble people talking nonsense, they would not think so of William Penn. By the time of the trial, "he was reported handsome and personable, and was winning friendly attention from his father's aristocratic and influential friends." Although there was no direct evidence that shows how the jury and audience were attracted by him, he certainly also won their friendly attention, as the jurors would stand with him even when they would be punished for doing so. | >
> | Besides being a defendant who did not need counsel, William Penn was also a charismatic man everyone likes. If it can be arguable that Penn was the most eloquent Quaker defendant, it was an undeniable fact that Penn was the Quaker who enjoyed the highest social status. As the son of the Admiral Willam Penn, Penn junior, as introduced above, received a first-class education and was acquainted with so many Dukes and Lords, even the King himself. The audience and jury might find most Quakers in other trials as ignoble people talking nonsense, they would not think so of William Penn. By the time of the trial, "he was reported handsome and personable, and was winning friendly attention from his father's aristocratic and influential friends." Although there was no direct evidence that shows how the jury and audience were attracted by him in his trial, he certainly won their friendly attention, as the jurors like Mr. Bushell would stand with him even when they would be punished for doing so. | | |
Jurors' conscience | |
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< | The last but also the most important reason for Penn's acquittal is the jury. In the trial right after Penn's, with the same facts and witnesses, a guilty verdict was easily attained through the careful selection of the jury. In the third trial, even when the defendants were not nearly as eloquent as Penn and only made a defense as simple as "I wronged no man", the conscientious jury still chose to hold its position and gave an acquittal verdict. | >
> | The last but also the most important reason for Penn's acquittal is the jury. In the trial right after Penn's, with the same facts and witnesses, a guilty verdict was easily attained through the Recorder's careful selection of the jury. In the third trial, even when the defendants were not nearly as eloquent as Penn and only made simple defenses like "I wronged no man", the conscientious jury still held its position and gave an acquittal verdict. | | | | |
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< | The importance of the jury can be appreciated from two perspectives. First is the importance of the jury as a whole. In a time when there was no restraint on Judges' discretionary power, when even the King's tolerance policy proved to be elusive, the jury was perhaps the only entity that could keep judges in check, allowing the slight possibility for Quakers to get away from the tyranny of the law. Thomas Green has a great discussion of this, but the idea is that the jury played a very important role in legal justice through "jury nullification", that a jury would also be a law finder sometimes, when they think the instruction given by the judge was unjust. The tracts Quakers wrote against the Bench's interpretation of the Conventicle Act was actually encouraging the jury to nullify the law given by the judges, and that actually was exactly what Penn's jury did. If the jury followed the instruction given by the Recorder, that a guilty verdict should be given based on the evidence of the existence of an assembly at a certain time and place, then the jury should have given a guilty verdict. However Penn successfully encouraged the jury to "nullify" the law; when the jury refused to say Penn was guilty of the assembling unlawfully, they reached such verdict upon their own interpretation of the law, that one should be guilty not only for assembling, but also requires proof of the seditious nature. So the jury was important to Penn's acquittal as it could and did perform a law finder's role. | >
> | The importance of the jury can be appreciated from two perspectives. First is the importance of the jury as a whole. In a time when there was no restraint on Judges' discretionary power, when even the King's tolerance policy proved to be elusive, the jury was the only entity that could keep judges in check, allowing the slight possibility for Quakers to get away from the tyranny of the law. Thomas Green has a great discussion of this; the idea is that the jury played a very important role in legal justice through "jury nullification", that a jury would also be a law finder when they think the instruction given by the judge was unjust. The tracts Quakers wrote against the Bench's interpretation of the Conventicle Act was actually encouraging the jury to nullify the law given by the judges, and that was exactly what Penn's jury did. If the jury followed the instruction given by the Recorder, that a guilty verdict should be given based on the evidence of the existence of an assembly at a certain time and place, then the jury should have given a guilty verdict. However Penn successfully encouraged the jury to "nullify" the law; when the jury refused to say Penn was guilty of the assembling unlawfully, they reached such verdict upon their own interpretation of the law, that one should be guilty not only for assembling, but also requires proof of the seditious nature. So the jury was important to Penn's acquittal as it could and did perform a law finder's role and nullified judge's dictation of the Conventicle Act. | | | | |
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< | That said, the importance of those composing individual jurors, the impact of each individual juror had on the result, should also be noticed. We should not forget that each juror was a human being, that he could be afraid as to bend to judge's dictation, nonchalant as to follow the majority, or conscientious as to stand against judges' unrestraint rage. In Penn's trial, it was Mr. Bushel who unified the non-agreeing jury at the beginning to firmly stood together with Penn in the end. In contrast, there were also jurors like William Smith who was "like an old bloodhound to hunt and persecute innocent people", who turned a jury from ten to two against conviction to giving a unanimous guilty verdict. Each juror's conscience can change the result of a trial, sometimes even the course of legal history. The bench was actually aware of how much jurors' conscience matters, and even though after Bushel's case judges could no longer dictate the jury during court proceedings, they still could dictate the result by controlling the process of jury selection, like what the Court did after Penn's trial. In a word, individual juror like Mr. Bushel's conscience was essential for Penn's acquittal; had Robinson successfully challenged out Bushel for not kissing the Bible when swearing, the result could be completely different. | >
> | That said, the importance of those composing individual jurors, the impact of each individual juror had on the result, should also be noticed. We should not forget that each juror was a human being, that he could be afraid as to bend to judge's dictation, nonchalant as to follow the majority, or conscientious as to stand against judges' unrestraint rage. In Penn's trial, it was Mr. Bushel who unified the non-agreeing jury at the beginning to firmly stood together with Penn in the end. In contrast, in other trials, there were jurors like William Smith who was "like an old bloodhound to hunt and persecute innocent people", who turned a jury from ten to two against conviction to giving a unanimous guilty verdict. Each juror's conscience can change the result of a trial, sometimes even the course of legal history. The bench was actually aware of how much jurors' conscience matters, and even though after Bushel's case judges could no longer dictate the jury during court proceedings, they still could dictate the result by controlling the process of jury selection, like what the Court did after Penn's trial. In a word, individual juror like Mr. Bushel's conscience was essential for Penn's acquittal; had Robinson successfully challenged out Bushel for not kissing the Bible when swearing, the result could be completely different. | | |
Conclusion--Criminal trial as a show | |
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< | This article only presented several key reasons for Penn's acquittal, but of course there were certainly more than those and some of the reasons we might never know. In the end, to conclude this short survey with one inspiring point made by professor Moglen: the criminal trials in those times were in nature a show the court put on. The defendant played the opposite Court in the trial, and the jurors were the audience (and also those real audiences). In Quakers persecution shows the Court almost always won, by controlling the evidence put on show and sometimes by some threats. However, Penn's trial was the epic failure of such a show, when the audience refused to buy it and gave its appulse to the defendant, for reasons we just analyzed: the culture trend (crown's attitude), player's outstanding skills (Penn's eloquence and charisma), and the audience's preference (jurors' conscience). | >
> | This article only presented several key reasons for Penn's acquittal, but of course there were more than those, and some of the reasons we might never know. In the end, to conclude this short survey with one inspiring point made by professor Moglen: the criminal trials in those times were in nature a show the court put on. The defendant played the opposite Court in the trial, and the jurors were the audience (and also those real audiences). In the persecution shows of Quakers, the Court almost always won by controlling the evidence put on the show and sometimes even by threating the audience. However, Penn's trial was the epic failure of such a show, when the audience refused to buy it and gave its appulse to the defendant, for reasons we just analyzed: the culture trend (crown's attitude), player's outstanding skills (Penn's eloquence and charisma), and the audience's preference (jurors' conscience). | | | |
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