The More Things Change….

Posted by Lawrence Taylor on August 19th, 2005

Many of my posts in the past have mentioned the “DUI Exception to the Constitution” and addressed the increasing tendency of courts and legislatures to ignore the Bill of Rights in DUI cases and to restrict a defendant in defending himself before a jury.  My recent posts about the presumptions of guilt are examples. 

Although we haven’t gotten there yet, perhaps we can learn from history — particularly from the famous trial of William Penn, as recounted in Earl Warren’s fine book A Republic, If You Can Keep It:

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.”

[* Note: Actually the jury found them guilty of “speaking on Gracechurch Street” and nothing else. Starling was infuriated because the act about which the jury found the accuseds guilty was not a crime.]

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.

As the old saying goes, “The more things change, the more they stay the same”.