The Trial of William Penn (1670)

Penn was a leader of the Quakers in London. The sect was not recognized by the government and was forbidden to meet in any building for the purpose of worship. In 1670 William Penn held a worship service in a quiet street which was attended by a peaceful group of fellow Quakers. Penn and another Quaker, William Mead, were arrested on a charge of disturbing the King's peace and summoned to stand trial. As the two men entered the courtroom, a bailiff ordered them to place their hats, which they had removed, back on their heads. When they complied, they were called forward and held in contempt of court for being in the courtroom with their hats on.

That was only the beginning. Penn demanded to know under which law they were charged. The court refused to supply that information and instead referred vaguely to the common law. When Penn protested that he was entitled to a specific indictment, he was removed from the presence of the judge and jury and confined in an enclosed corner of the room known as the bale-dock. From there, he could neither confront the witnesses who accused him of preaching to the Quakers nor ask them questions about their charges against him.

Several witnesses testified that Penn had preached to a gathering which included Mead, but one showed some hesitancy as to whether Mead had been present. The judge turned to Mead and questioned him directly. In essence, he was asking Mead if he were guilty. Mead invoked the common-law privilege against self-incrimination which provoked hostile comment from the judge. The court then sent Mead to join Penn in the bale-dock out of the sight of the jury and witnesses. After the testimony the court instructed the jury to find the defendants guilty as charged. Penn tried to protest, but was silenced and again sent out of the courtroom.

The jury, for its part, proved sympathetic to the two defendants, and refused the judge's command to find the defendants guilty. The judge was furious and sent them away to reconsider. When they returned with the same verdict, the court criticized the jury's leader, one Bushnell, and demanded "a verdict that the court will accept, and you shall be locked up without meat, drink, fire, and tobacco....We will have a verdict by the help of God or you will starve for it."

Three more times the jury went out and returned with the same verdict. Finally, they refused to go out any more. The judge fined each of them forty marks and ordered them imprisoned until the fine was paid. Penn and Mead went to prison anyway for obeying the bailiff's order that they put on their hats. Later a writ of habeas corpus won freedom for the jurors while Penn and Mead left jail to come to America.

Earl Warren, "A Republic, If You Can Keep It", pp. 113-115

Historical note: In 1681 King Charles II of England gave the Pennsylvania region to William Penn. Pennsylvania means Penn's Woods. Penn, a Quaker, established the Pennsylvania colony so that Quakers and other faiths could have religious freedom.

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Penn's demand
to know under which law he was charged

Penn: I desire you would let me know by what law it is you prosecute me, and upon what law you ground my indictment.

Rec.: Upon the common-law.

Penn: Where is that common-law?

Rec.: 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.

Rec.: 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.

Rec.: You are an impertinent fellow, will you teach the court what law is? It is "Lex non scripta," that which many have studied 30 or 40 years to know, and would you have me tell you in a moment?

Penn: Certainly, if the common-law be so hard to understand it is far from being common.

Trial of William Penn. 6 How. St. Trials (1670) 951, 958.

Penn was refused admittance to the Quaker Meeting Hall and in protest began to preach in the street. He was indicted under the common law for taking part in an unlawful and tumultuous assembly. The jury refused to render a verdict of guilty and were taken into custody.