The Sixth Amend­ment: How one man’s courage saved ‘trial by jury’

The Washington Times Daily - - CELEBRATING FREEDOM - By Dr. Stephen H. Balch Stephen H. Balch, Ph.D., is di­rec­tor of the Texas Tech In­sti­tute for the Study of Western Civ­i­liza­tion.

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.

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.

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