JURY NULLIFICATION: EMPOWERING THE JURY AS THE FOURTH BRANCH OF GOVERNMENT

Of all the great trials in history tried at Old Bailey in London only one is commemorated by a plaque. Located near Courtroom Number Five it reads:

"Near this site William Penn and William Mead were tried in 1670 for preaching to an unlawful assembly in Gracechurch Street.

This tablet commemorates the courage and endurance of the Jury, Thomas Vere, Edward Bushell and ten others, who refused to give a verdict against them although they were locked up without food for two nights and were fined for their final verdict of Not Guilty.

The case of these jurymen was reviewed on a writ of Habeas Corpus and Chief Justice Vaughan delivered the opinion of the court which established the Right of Juries to give their Verdict according to their conviction."

The case commemorated is Bushell's Case, 6 Howell's State Trials 999 (1670). This case is a good beginning for tracing the roots of a legal doctrine known as jury nullification.

The year was 1670 and the case Bushell sat on was that of William Penn and William Mead, both Quakers, who were on trial for preaching an unlawful religion to an unlawful assembly in violation of the Conventicle Act. This was an elaborate act which made the Church of England the only legal church. The facts clearly showed that the defendants had violated the Act by preaching a Quaker sermon. And yet the jury acquitted them against the judge's instruction. The Conventicle Act was nullified by the jury's not guilty verdict and the infuriated judge fined the jurors and jailed them until such time as their fines should be paid.

Edward Bushell and three others refused to pay the fines. As a consequence they were imprisoned for nine weeks and Bushell filed a writ of habeas corpus. He and the other recalcitrant jurors prevailed in the Court of Common Pleas, and the practice of punishing juries for verdicts unacceptable to the courts was abolished. Thus was re-established the right of jury nullification, an ancient right expressed in Magna Carta and dating from Greek and Roman times. And the jury's nullification verdict in this case, the trial of William Penn, established freedom of religion, freedom of speech, and the right to peacefully assemble. These rights became part of the English Bill of Rights, and later, part of the First Amendment to the United States Constitution. The man whom the courageous jurors had saved, William Penn, later founded Pennsylvania and the city of Philadelphia in which the Declaration of Independence and the United States Constitution were written.