"Ye are Englishmen, mind your privilege, give not away your right."
Jury nullification (in which despite the obvious evidence that the defendant committed the crime charged the jury disregarded the evidence and acquitted in whole or part) has been praised, in that the acquittal reflects a democratic process by which the jury can interpose its own moral or political judgment in defiance of an unpopular expression of governmental action.
By the same process however, it has been denounced as an act of anarchy.
...the Seventeenth Century trial of William Penn, founder of Pennsylvania, and Bushell's Case which arose from it, played a dramatically inspiring role.
Penn was placed on trial in the Old Bailey Court in 1670 for the crime of "tumultuous assembly," because he preached a sermon in Grace Church Street in violation of the "Conventicle Act" which prohibited any meeting for worship other than those of the Church of England. The Court ordered the jury to find Penn guilty, for if they found the Quakers had met at all, the very meeting by itself was unlawful. The jury, however, found that the meeting had taken place, but refused to find the law had been violated.
Penn, at the time, was only 26 years old, and had to conduct his own defense, as accused persons in criminal cases in those days were not allowed counsel to represent them.
The trial is a dramatic example of the cavalier methods used by judges at the time. The jury consisted of twelve ordinary middle-class men selected at random from the jury rolls of the City of London. The ten judges who heard the case included the Lord Mayor, the Recorder (a Magistrate), and other representatives of government who were motivated to enforce the "Conventicle Act."
As we read the transcript of the trial (which Penn published in 1670 as the Peoples Ancient and Just Liberties, Asserted in the Trial of William Penn and William Mead. . . . Against The Most Arbitrary Procedure Of That Court.), Penn's logic and legal acumen must be admired. He baited the judges so skillfully on the role of the Common law, that they in turn tired to heckle and bully him. Finally, completely frustrated, they ordered that he be locked up in the bale dock. The bale dock was a locked cage, recessed below the floor level, located at the very end of the courtroom. There he could be heard but not seen by the jury.
When the jury returned a verdict of "guilty of speaking in Grace Church Street," the Lord Mayor shouted out, "was it not an unlawful assembly? You mean he was speaking to a tumult of people there?" The jury refused to so find.
The Recorder then angrily responded "Gentlemen, you shall not be dismissed till you bring in a verdict which the court will accept. 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 objected: "My jury, who are my judges, ought not to be thus menaced. Their verdict should be free-not forced. The agreement of twelve men is a verdict in law. . . and if, after this, the jury brings in another verdict, contrary to this, I affirm they are perjured men."
At this point while Penn was still talking, the soldiers started to push the jury back to the juryroom and then occurred one of the most inspiring incidents in the annals of English jurisprudence.
Penn called out: "Ye are Englishmen, mind your privilege, give not away your right."
And the jury replied., "Nor will we ever do it."
The jury was kept for two days and nights, without food, water, and heat, but refused to change its verdict. Finally the court ended the trial abruptly, fining each juror forty marks and committing them to imprisonment until they paid their fines.
Bushell, the foreman, and the other jurors obtained a writ of habeas corpus from the Court of Common Pleas. Releasing them from their imprisonment, Chief Justice Sir John Vaughan held" . . for if it be demanded what is the fact? The judge cannot answer it: if it be asked, what is the law in this case, the jury cannot answer it." Although the judgment was later reversed on appeal because the Court of Common Pleas did not have jurisdiction in criminal matters, Bushell's Case established the right of trial juries to decide cases according to their convictions.
I hope the ordinary people of England are still so strong minded in their defence of freedom.