THE POPULAR EDUCATOR. 



and a citizen, Bushell, member of a jury. The case is called 

 " Bushell's Case," and it is one of the most important possible, 

 for upon it was established once and for ever the grand right of 

 a juryman " a true verdict to give according to the evidence," 

 without reference to whether that verdict was or was not accept- 

 able to the court to whom it was returned. Let us look for a 

 few minutes at " Bnshell's case." 



The circumstances under which Bushell, the juryman, came 

 upon the scene were these : Two Quakers, Penn and Mead, had 

 thought fit to preach to the people from the steps of a house 

 in Gracechnrch Street. In the course of their address they 

 had used language which was interpreted as conveying, and 

 perhaps was meant to convey, animadversions upon the govern- 

 ment. For this they were arrested, and, having been committed 

 by a city magistrate on the charge of stirring up a riot, were 

 put upon their trial. Like many of the charges preferred at 

 that time by the over-zealous agents of the government, the 

 accusation was an extravagant one, and considerable sympathy 

 was shown by the Londoners in favour of the prisoners. If 

 what the two men had said amounted to sedition, then, it was 

 felt, no man could safely talk politics even in the mildest way ; 

 and it was further felt that the prosecution was a tyrannical act 

 on the part of the government. Notwithstanding such was the 

 case, the trial was urged, and it came on before the Recorder 

 of London at the Old Bailey. 



The following scene, illustrative of the manner in which 

 prisoners were treated under Charles II., presented itself on the 

 entrance of Penn and Mead into the court : After the manner of 

 their brethren, the two Friends kept their hats on in the presence 

 of the judge, as they would have done in the presence of the 

 king himself. The gaoler rudely knocked their hats off, where- 

 upon the Recorder, not with a view of rebuking the man's rough- 

 ness, but to having a preliminary fling at the prisoners, ordered 

 him to replace them. Being put in the dock, the prisoners were 

 thus addressed by their judge : 



RECORDER : Do you know where you are ? 

 PENN : Yes. 



RECORDER : Do you not know it is the king's court ? 

 PENN : I know it to be a court, and I suppose it to be the 

 king's court. 



RECORDER : Do you not know there is respect due to the 

 court ? 



PENN : Yes. 



RECORDER : Why do you not pay it then ? 

 PENN : I do. , 



RECORDER : Why do you not pull off your hat then ? 

 PENN : Because I do not believe that to be any respect. 

 RECORDER .- Well, the court sets forty marks apiece upon 

 your heads, as a fine for the 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. 



After this the prisoners, undoubtedly with much pertinacity 

 and some show of disrespect to the court, refused to plead to 

 the indictment, which charged them with having caused a 

 tumultuous assembly, until the questions they raised as to the 

 legality of it in point of form should have been answered. The 

 Recorder and the Lord Mayor tried in vain to silence them, 

 resorting to threats, and abuse of a very coarse description, and 

 not succeeding, the Recorder did in effect enter a plea of " not 

 guilty " for them, and had them put upon their trial. 



Among the jury was one man, Bushell, whose character 

 for conduct displeasing to the court was already well known, 

 and to whom several unworthy remarks had been made at the 

 time he was sworn. Under his guidance the jury retired, and 

 in a short time returned into court with a verdict acquitting 

 Mead, and saying that Penn was " guilty of speaking in Grace- 

 church Street." This verdict angered the court exceedingly. 

 " Is that all ? " they asked the foreman. " That is all I have in 

 commission," was the reply. "You had as good say nothing." 

 Being further pressed, and also told, " the law of England will 

 not allow you to part till you have given your verdict," the jury 

 replied, " We have given in our verdict, and we can give in no 

 other." 



The Recorder refused to take such a verdict, and sent the 

 jury back again to reconsider it. In half an hour's time they 

 came back into court, and handed in a written verdict to the 



same effect as before, and signed by all of them. Upon this 

 being received, the Lord Mayor rated the jury in these words . 

 MAYOR: What, will you be led by such a silly fellow as 

 Bushell ? An impudent, canting fellow. I warrant you, you 

 shall come no more upon juries in haste. You are a foreman, 

 indeed (ad dressing Bushel!). I thought you had understood your 

 place better. 



RECORDER: Gentlemen, you shall not be dismissed till we 

 have a verdict that the court will accept; and 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 bv 

 the help of God ; or you shall starve for it. 



The jury declined to alter their verdict, and Penn, one of the 

 prisoners, claimed to have it recorded. " The agreement of 

 twelve men is the verdict in law ; and such a one being given by 

 the jury, I require the clerk of the peace to record it, as he will 

 answer at his peril. And if the jury bring in another verdict 

 contradictory to this, I affirm they are perjured men in law ; " 

 and, looking upon the jury, he said : " You are Englishmen ! 

 Mind your privilege ! Give not away your right ! " 



The court was adjourned till next morning at seven o'clock, 

 the prisoners were sent back to Newgate, and the jury were 

 ordered into the custody of those who swore to keep them 

 without fire, food, drink, or any other accommodation till the 

 adjourned sitting of the court. 



While the jury are thus away in their retiring room, making 

 up their minds what verdict they shall give chafing at the 

 manner in which they have been treated by the court, and, 

 under the guidance of their foreman, resolving that they will not 

 submit to dictation, but act upon the exordium delivered to 

 them by the prisoner as they quitted their box let us consider 

 for a moment what right it was for which they were contending, 

 and the way in which that right was acquired. 



Trial by jury was an old-established institution in England, as 

 old, some think, as the Anglo-Saxon laws. Something like it is 

 certainly to be found in the history which has come down to us 

 of those times, but the jury system, as we understand it now, was 

 the creation of a period subsequent to the Norman Conquest, 

 1066. Before that date the jury which tried causes consisted of 

 a certain number of " compurgators " as they were called, that 

 is to say, persons who did not give their opinion upon evidence 

 adduced before them on oath, but who merely swore that they 

 believed what the defendant said under sanction of his oath. 

 The form of procedure was simply this. A man accused of 

 default, on civil or criminal process, was put on his oath if he 

 chose to be so, and then swore he was innocent of the offence 

 charged, or that his version of the case between him and the 

 plaintiff was a true one. The compurgators, of whom the num- 

 ber varied from twelve to thirty-six, being also sworn, deposed 

 to their belief in what the defendant had said, and, as they were 

 commonly chosen from among the neighbours and acquaintance 

 of the man, they were supposed to know something of the facts 

 connected with his case, as well as to be able to form an esti- 

 mate of the truth or falsehood of his statements. It can easily 

 be imagined that such a tribunal was not one from which to ex- 

 pect strict justice, and the shortcomings of the system amounted 

 in many instances to gross miscarriage of right. Nevertheless, 

 it continued to be used with other systems till Henry II. (1154- 

 1189) introduced the Norman form of trial by jury for civil 

 causes, assessment of taxes and the like, and Henry in., or 

 rather those who represented him, introduced it about 1235 on 

 criminal process. 



The Norman-English j ury was not like ours of to-day. Instead 

 of deciding upon the case according to evidence for and against, 

 and after hearing the summing-up of the judge, the jury included 

 all those who under our system would be witnesses, and would 

 be rigidly excluded from the jury for the very reason that they 

 knew most of the facts. Then it was the duty of the sheriff to 

 summon specially on the jury all those who were, or might be 

 supposed to be, acquainted with the material points in the case, 

 and these persons compared notes with their fellows, but without 

 being subjected to any cross-examination, and gave their verdict 

 according to what then appeared to them to be right. Common 

 rumour, repetitions of what somebody else had said, unsifted 

 testimony of various kinds, were received by these juries, and 

 sometimes constituted all the evidence they had to guide them. 

 All such would be utterly rejected now, and any person who had 

 evidence to give would be summoned as a witness would cer- 



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