Standing Up - William Penn

Before his image appeared on oatmeal boxes, William Penn stood up - And an English jury stood up with him, to the benefit of all of us today.

Maureen G - Jan 11, 2026

Penn grew up in privilege as the son of an admiral in the English navy, but as a very young man and against his family’s wishes he joined the Society of Friends (frequently referred to as Quakers1). The Society was a minority religious group at a time when nonconforming religious practices could cost you your freedom, your property, and even your life. Penn was a zealous proselytizer for the Society; he wrote numerous pamphlets criticizing other religions, in particular the established Church of England. One of his anti-Church of England pamphlets got him a charge of publication without a license and an eight-months spell in the Tower of London.

Another of Penn’s numerous incarcerations took place when he preached to a street gathering in defiance of the 1664 Conventicle Act which made it unlawful to assemble "more than five persons in addition to members of the family, for any religious purpose not according to the rules of the Church of England."2 When Penn and his co-defendant William Mead were arraigned before the criminal court on the unlawful assembly charge, they were accused by the judge of refusing to remove their hats. They were summarily charged and convicted of contempt of court for that alleged transgression and fined a significant sum.3

The presiding judge then sought to assure a conviction on the unlawful assembly charge by denying the defendants rights that we recognize today as fundamental to a fair trial: the right to be presented with the charges against them, the right to be present during the trial, the right to confront witnesses against them, and the right to present a defense before the jury was asked to render a verdict. The judge also sought to deny the essence of the right to a jury trial by directing the jury to find the defendants guilty.

Despite the judge’s efforts, the jurors weren’t having it. Their first verdict found Penn guilty of speaking to an assembly, but not guilty of speaking to an “unlawful assembly,” essentially a not guilty verdict. The infuriated judge admonished the jurors to continue their deliberations until they returned a verdict that the court would accept. He ordered the jurors incarcerated and denied them food and water until they complied.

As the jurors were led from the courtroom, Penn called out to them from where he was being held outside the courtroom:

"You are Englishmen, mind your privilege, give not away your right." - William Penn, September 1, 1670

The jurors continued to defy the court for two days, after which they were returned to the courtroom, stood their ground on the not guilty, were fined for their defiance, and returned to prison pending payment of their fines and the rendering of a proper verdict.4

Many in the Quaker community at that time were persons of means, and a few were even lawyers themselves, so they were not without resources.5 They responded by filing an action in a different court, the Court of Common Pleas, seeking a writ of habeas corpus to release the jurors. The writ was granted and the jurors were released, as were Penn and Mead. Penn went on to continue his resistance to authority and his advocacy for religious freedom, and remarkably for the time, living to tell about it.

The decision of the Court of Common Pleas in favor of the jurors is known as Bushel’s Case, after Edward Bushel, one of the jurors.6 The case is recognized as the foundation of the principle of jury independence in English common law, the foundation of modern American law. Jurors cannot be impeached for returning a verdict that the court believes is contrary to the law or the facts, except under very limited circumstances. This principle protects jurors who simply see a case differently from the way a judge may view it, but in criminal cases it also enables the related phenomenon of jury nullification: jurors may return a verdict of acquittal of a criminal defendant even if they believe the defendant is guilty as charged.7

To be fair, it should be acknowledged that not all lawyers and judges are fans of the principle of jury nullification, nor is the public in some instances.8 It has been wielded by juries to the benefit of people such as O.J. Simpson and the perpetrators of the murder of Emmett Till, among a few examples.9 It has also been brought to bear in cases involving enforcement of unpopular alcohol and drug laws, in cases involving exercise of First Amendment rights by conscientious protesters, and in favor of supporters of the right to assisted suicide. Perhaps most recently, jury nullification was arguably exercised in the infamous Subway Sandwich incident to acquit the defendant who threw a sandwich at a federal officer in the District of Columbia.10

Like it or not, jury nullification is likely to show up a lot more in the next little while, when POTUS 47 regularly and openly asserts his right to take revenge on his political rivals through criminal prosecution. We the People is not just an idle slogan when it comes to jury trial. Don’t take my word for it, here’s what Thomas Jefferson had to say:

… trial by jury; and I consider that as the only anchor, ever yet imagined by man, by which a government can be held to the principles of it’s constitution.

Letter to Thomas Paine, July 11, 1789. Source: https://founders.archives.gov/documents/Jefferson/01-15-02-0259

1

Referring to members of the Society of Friends originated as a slur, mocking members for their agitated movements in response to their spiritual experience at meetings. https://chattanoogafriendsmeeting.org/dictionary/

2

https://en.wikipedia.org/wiki/William_Penn#cite_note-66

3

The story is sometimes told that Penn refused to remove his hat on the Quaker religious principle of spiritual equality. According to Penn’s account of the trial, what actually occurred is that he and his co-defendant did remove their hats when they entered the courtroom, but they were directed by a bailiff to put them back on. Then the court charged them with contempt. Penn loudly objected to being set up in this manner for additional charges. For an account of the trial and the significance of the court rulings that ensued see Samuel P. Weaver, The Penn Cases, 4 Wash. L. Rev. 49 (1929), https://digitalcommons.law.uw.edu/cgi/viewcontent.cgi?article=1136&context=wlr

4

According to accounts of the trial, Penn and Mead repeatedly urged the jury to protect their rights as Englishmen. Penn’s version of what occurred was published in a pamphlet entitled “The peoples ancient and just liberties asserted, in the tryal of William Penn, and William Mead, at the sessions held at the Old-Baily in London, the first, third, fourth and fifth of Sept. 70. against the most arbitrary procedure of that court.” One online source for a facsimile of the lengthy pamphlet is here: https://hdl.handle.net/2027/uc1.31822043008879; you can download a more readable copy here: https://ia801300.us.archive.org/2/items/trialofwilliampe00pennuoft/trialofwilliampe00pennuoft.pdf The pamphlet is credited to William Penn, but having done some research on this topic in years past, I believe that Thomas Rudyard, Penn’s solicitor, actually authored it. See next footnote.

5

William Penn was represented by one Thomas Rudyard, a Quaker solicitor. Rudyard was an experienced attorney; he later worked closely with William Penn on many matters, including the drafting of the first Frame of Government for the Province of Pennsylvania. Rudyard also became a proprietor of the Province of West Jersey and a deputy governor of the Province of East Jersey (which together comprised what is now the State of New Jersey). He was certainly one of the first, if not the first, New Jersey attorney. See https://en.wikipedia.org/wiki/Thomas_Rudyard

6

For a very short account see https://en.wikipedia.org/wiki/Bushel%27s_Case

7

It may also be considered jury nullification when a jury returns a verdict of guilty on a lesser charge even though they believe that a more serious charge has been proved.

8

Chief Justice Robert Wilentz of the New Jersey Supreme Court was a particular critic of jury nullification, see State v. Ragland, 105 N.J. 189 (1986) : “We conclude that the power of the jury to acquit despite not only overwhelming proof of guilt but despite the jury's belief, beyond a reasonable doubt, in guilt, is not one of the precious attributes of the right to trial by jury. It is nothing more than a power. By virtue of the finality of a verdict of acquittal, the jury simply has the power to nullify the law by acquitting those believed by the jury to be guilty. We believe that the exercise of that power, while unavoidable, is undesirable and that judicial attempts to strengthen the power of nullification are not only contrary to settled practice in this state, but unwise both as a matter of governmental policy and as a matter of sound administration of criminal justice.”

9

https://en.wikipedia.org/wiki/Jury_nullification_in_the_United_States

10 Jury nullification appears to have been exercised twice in the sandwich case. A grand jury first refused to indict the accused on felony assault charges. Undeterred, the federal prosecutor brought misdemeanor charges, which do not require an indictment by the grand jury. They struck out again when the jury found the defendant not guilty. https://www.nbcnews.com/politics/justice-department/dc-sandwich-guy-verdict-rcna242142 One juror commented: "I thought we'd be out of there quickly. This case had no 'grounding.' He threw a sandwich at the agent because he knew it wouldn't hurt," another juror said. "A reasonable person wouldn't think a sandwich is a weapon." https://www.foxnews.com/politics/dc-sandwich-throwing-case-laughingstock-court-jurors-reveal. You can call that jury nullification, or you can call it the exercise of extreme skepticism by ordinary people of the merits of the prosecutor’s case, fueled by general public anger at the occupation of the District of Columbia by the National Guard. Take your pick.