''Bushel’s Case'' (1670) 124 E.R. 1006, also spelled ''Bushell's Case'', is a famous English decision on the role of

juries A jury is a sworn body of people (jurors) convened to hear evidence, make findings of fact, and render an impartial verdict officially submitted to them by a court, or to set a penalty or judgment. Most trial juries are " petit juries", an ...

. It established beyond question the independence of the jury. It also confirmed that the Court of Common Pleas could issue a

writ In common law, a writ is a formal written order issued by a body with administrative or judicial jurisdiction; in modern usage, this body is generally a court. Warrant (legal), Warrants, prerogative writs, subpoenas, and ''certiorari'' are commo ...

of ''

habeas corpus ''Habeas corpus'' (; from Medieval Latin, ) is a legal procedure invoking the jurisdiction of a court to review the unlawful detention or imprisonment of an individual, and request the individual's custodian (usually a prison official) to ...

'' in ordinary criminal cases.

Background

''Bushel's Case'' arose from a previous case (''R v. Penn and Mead'' or ''Trial of Penn and Mead,'' 6 How. 951) involving two

Quakers Quakers are people who belong to the Religious Society of Friends, a historically Protestantism, Protestant Christian set of Christian denomination, denominations. Members refer to each other as Friends after in the Bible, and originally ...

charged with unlawful assembly,

William Penn William Penn ( – ) was an English writer, religious thinker, and influential Quakers, Quaker who founded the Province of Pennsylvania during the British colonization of the Americas, British colonial era. An advocate of democracy and religi ...

(the future founder of

Pennsylvania Pennsylvania, officially the Commonwealth of Pennsylvania, is a U.S. state, state spanning the Mid-Atlantic (United States), Mid-Atlantic, Northeastern United States, Northeastern, Appalachian, and Great Lakes region, Great Lakes regions o ...

) and William Mead. They had been arrested in August 1670 for violating the Conventicle Act, which forbade religious assemblies of more than five people outside the auspices of the

Church of England The Church of England (C of E) is the State religion#State churches, established List of Christian denominations, Christian church in England and the Crown Dependencies. It is the mother church of the Anglicanism, Anglican Christian tradition, ...

. The jury found the two "guilty of speaking in Gracechurch Street" but refused to add "to an unlawful assembly". The infuriated judge charged the jury that they "shall not be dismissed until we have a verdict that the court will accept". The jury modified the verdict to "guilty of speaking to an assembly in Gracechurch Street", whereupon the judge had them locked up overnight without food, water or heat. The judge ordered Penn bound and gagged. Penn protested, shouting to the jury, "You are Englishmen, mind your Privilege, give not away your Right", to which juror Edward Bushel replied, "Nor shall we ever do." Finally, after a two-day fast, the jury returned a not guilty verdict. The judge fined the jury for

contempt of court Contempt of court, often referred to simply as "contempt", is the crime of being disobedient to or disrespectful toward a court of law and its officers in the form of behavior that opposes or defies the authority, justice, and dignity of the co ...

for returning a verdict contrary to their own findings of fact and removed them to prison until the fine was paid. Penn protested that this violated

Magna Carta (Medieval Latin for "Great Charter"), sometimes spelled Magna Charta, is a royal charter of rights agreed to by King John of England at Runnymede, near Windsor, on 15 June 1215. First drafted by the Archbishop of Canterbury, Cardin ...

and was forcibly removed from the court. Edward Bushel, a member of the jury, nonetheless refused to pay the fine.

Decision

Bushel petitioned the Court of Common Pleas for a writ of ''

''. Sir John Vaughan, Chief Justice of the Court of Common Pleas, initially held that the writ should not be granted, saying that it was King's Bench that should issue writs of ''habeas corpus'' in ordinary criminal cases and that Common Pleas could issue the writ only on a claim of privilege of the court (e.g., if the petitioner were an attorney of Common Pleas); the other justices issued the writ, however.Paul D. Halliday, ''Habeas Corpus: From England to Empire'' (Cambridge, MA: Belknap Press, 2010), 235–36. Vaughan ruled in November 1670 that a jury could not be punished simply on account of the verdict it returned, but that individual jurors could still be punished if it could be demonstrated that they had acted improperly.

Notes

{{reflist

Bibliography

Trial of William Penn and William Mead, at the Old Bailey, for a Tumultuous Assembly"
22 Charles II. A. D. 1670, ''Howell's State Trials'', Vol. 6, Page 951, at

Constitution Society The Constitution Society is a nonprofit educational organization headquartered at San Antonio, Texas, U.S., and founded in 1994 by Jon Roland, an author and computer specialist who has run for public office as a Libertarian Party candidate on a " ...

"Case of the Imprisonment of Edward Bushell for alleged Misconduct as a Juryman"
22 Charles II. A. D. 1670, Vaughan's Reports, 135, ''Howell's State Trials'', Vol. 6, Page 999, at

"Between Local Knowledge and National Politics: Debating Rationales for Jury Nullification after Bushell’s Case"
by Simon Stern, 111 ''Yale Law Journal'' 1815 (2002). *Rhodes, David. "Life in Crime: Can a Judge ever direct a jury to convict?" ''Solicitors Journal'' 8 December 2006

External links

Text of Vaughan's opinion in this case
''Select Statutes, Cases, and Documents to Illustrate English Constitutional History, 1660–1832: With a Supplement from 1832–1894'', p. 223 (Sir Charles Grant Robertson, ed., Methuen & Company, 1904). 1670 in law 1670 in England English criminal case law Legal history of England Jury nullification Juries in the United Kingdom Court of Common Pleas (England) cases

Background

Decision

See also

Notes

Bibliography

External links