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Tuesday, December 13th, 2005
I'm currently reading a book called The Political Writings of William Penn. In it, there is a piece called "The People's Ancient and Just Liberties Asserted". It concerns trial by jury, and records a case where William Penn and his friend William Mead were hauled into court on charges that they "unlawfully and tumultuously did assemble and congregate themselves together, to the disturbance of the peace of the said Lord the King." There is an old saying that he who defends himself has a fool for a client, but it proves false here. Not that Penn had the opportunity to seek legal counsel.
I became interested in this book, as Penn's writings on liberty were recommended by David Hackett Fischer in his magnificent Albion's Seed: Four British Folkways in America. According to Fischer, the Pennsylvania Quakers came from a part of Britain that had some unique ideas on liberty that made Quaker doctrines of equality less foreign than they were in other parts of England. Fischer for instance argues that woman preachers among the Quakers wielded an authority that was similar to that wielded by the women of Viking culture, a culture which heavily influenced the North of England (Fischer, pp.490-498).
Penn and Mead had to wait in court for five hours of other cases before their case was heard. Then an officer of the court put their hats on their heads. Soon afterwards, the men were fined for contempt of court for wearing their hats in court. It was not Quaker custom to make outward acts of deference, so the court was depending on their defending an act they did not choose. It is interesting that each man took a different strategy.
RECORDER. Do you not know there is respect due to the Court?
RECORDER. Why do you not pay it then?
PENN. I do so.
RECORDER. Why do you not put off your hat then?
PENN. Because I do not believe that to be any respect.
RECORDER. Well, the Court sets forty marks a piece upon your heads as a fine for your contempt of the Court.
PENN. I desire it might be observed, that we came into the Court with our hats off (that is, taken off) and if they have been put on since, it was by order from the Bench, and therefore not we but the Bench should be fined.
MEAD. I have a question to ask the Recorder. Am I fined also?
MEAD. I desire the jury and all people to take notice of this injustice of the recorder, who spake not to me to pull off my hat, and yet hath he put a fine upon my head. O fear the Lord and dread His power, and yield to the guidance of his Holy Spirit, for He is not far from every one of you.
Another interesting exchange happened when Penn demanded to know what he was being charged with, and the court recorder was evasive:
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 [that] 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.
RECORDER. Upon the common law.
PENN. Where is that common law?
RECORDER. You must not think that I am able to run up so many years and over so many adjudged cases which we call common law to answer your curiosity.
PENN. This Answer, I am sure, is very short of my question, for if it be common, it should not be so hard to produce.
This argument goes back and forth a few times. Suffice it to say that Penn outargues the recorder. It continues:
RECORDER. The question is whether you are guilty of this indictment?
PENN. The question is not whether I am guilty of this indictment, but whether this indictment be legal. It is too general and imperfect an answer to say it is the common law, unless we knew both where and what it is. For where there is no law there is no transgression, and that law which is not in being is so far from being common that it is no law at all.
RECORDER. You are an impertinent fellow. Will you teach the court what law is? It's lex non scripta, that which many have studied thirty or forty Years to know, and would you have me to tell you in a moment?
PENN. Certainly if the common law be so hard to be understood, it's far from being very common; but if the Lord Cook in his Institutes, be of any consideration, he tells us that common law is common right, and that common right is the Great Charter privileges, confirmed 9 Hen. III, c.29; 25 Edw. I, c.1; 2 Edw. III, c.8; Coke Inst. 56.
This argument is quite amusing. The recorder appeals to common law, but the law proves to be too uncommon for him to remember. Then he claims it is unwritten law. Penn argues that the law goes against the fundamental law of the land, which he is able to cite.
In the end, the jury refused to convict. For this they were jailed. This miscarriage of justice was remembered when the American jury system was instituted.
Trial by jury is among our most precious rights. And it is always in danger. A friend of mine was called up for jury duty and the judge asked him if he would follow the law as given, even if it violated his conscience. He said he would not. He was dismissed. His wife was frustrated, as she wanted him to get on a jury so he could be a good juror. "Surely you could have agreed to whatever they said just to get on!" she argued. Then she came up for jury duty. "He was right. What they asked of me was every bit as bad as he claimed," she said. "I couldn't say that!"
Some interesting material on this subject is available at the Fully Informed Jury Association, or FIJA.
1:31 pm Pacific Standard Time