Now, Gentlemen of the Jury, I will mention some examples of this kind, partly to show the process by which attempts have been made to establish despotism, that by the English past you may be warned for the American present and future; and partly that your function in this and all cases may become clear to you and the Nation. The facts of history will show that my fancies are not extravagant.
1. In April, 1554, just three hundred and one years ago this very month, in England, Sir Nicolas Throckmorton, a gentleman of distinguished family, was brought to trial for high treason. He had held a high military office under Henry VIII. and Edward VI., but "made himself obnoxious to the Papists, by his adherence to some of the persecuted Reformers." With his two brothers he attended Anne Askew to her martyrdom when she was burnt for heresy, where they were told to "take heed to your lives for you are marked men." He was brought to trial April 17th, 1554, the first year of Bloody Mary. Of course he was allowed no counsel; the court was insolent, and demanded his condemnation. But the jury acquitted him; whereupon the court shut the twelve jurors in prison! Four of them made their peace with the judges, and were delivered: but eight were kept in jail till the next December, and then fined,—three of them £60 apiece, and five £225 apiece.
This is one of the earliest cases that I find, where an English jury in a political trial refused to return such a verdict as the tyrant demanded.[121]
2. In September, 1670, William Penn, afterwards so famous, and William Mead, were brought to trial before the Lord Mayor of London, a creature of the king, charged with "a tumultuous assembly." For the Quaker meeting-house in Grace Church Street, had been forcibly shut by the government, and Mr. Penn had preached to an audience of Dissenters in the street itself. The court was exceedingly insolent and overbearing, interrupting and insulting the defendants continually. The jury found a special verdict—"guilty of speaking in Grace Church Street." The judge sent them out to return a verdict more suitable to the desire of the government. Again they substantially found the same verdict. "This both Mayor and Recorder resented at so high a rate that they exceeded the bounds of all reason and civility." The Recorder said, "You shall not be dismissed till we have a verdict that the court will accept; 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 by the help of God, or you shall starve for it!" When Penn attempted to speak, the Recorder roared out, "Stop that prating fellow's mouth or put him out of court." The jury were sent out a third time, and kept all night, with no food, or drink, or bed. At last they returned a verdict of "not guilty," to the great wrath of the court. The judge fined the jurors forty marks apiece, about $140, and put them in jail until they should pay that sum. The foreman, Edward Bushel, refused to pay his fine and was kept in jail until he was discharged on Habeas Corpus in November. Here the attempt of a wicked government and a cruel judge was defeated by the noble conduct of the jurors, who dared be faithful to their duty.[122]
3. In 1681 an attempt was made to procure an indictment against the Earl of Shaftesbury, for High Treason. The Bill was presented to the Grand-Jury at London; Chief Justice Pemberton gave them the charge, at the king's desire—it was Charles II. They were commanded to examine the evidence in public in the presence of the court, in order that they might thus be overawed and forced to find a bill, in which case the court had matters so arranged that they were sure of a conviction. The court took part in examining the witnesses, attempting to make out a case against the Earl. But the jury returned the bill with Ignoramus on it, and so found no indictment. The spectators rent the air with their shouts. The court was in great wrath, and soon after the king seized the Charter of London, as I have already shown you, seeking to destroy that strong-hold of Liberty. Shaftesbury escaped—the jury was discharged. Why did not the court summon another jury, and the chief justice put his brother-in-law on it? Roger Coke says, "But as the knights of Malta could make knights of their order for eight pence a piece, yet could not make a soldier or seaman; so these kings [the Stuarts] though they could make what judges they pleased to do their business, yet could not make a grand-jury." For the grand-juries were returned by the Sheriffs, and the sheriffs were chosen by the Livery, the corporation of London. This fact made the king desire to seize the charter, then he could make a grand-jury to suit himself, out of the kinsfolk of the judge.[123]
4. Next comes the remarkable case of the Seven Bishops, which I have spoken of already.[124] You remember the facts, Gentlemen. The king, James II., in 1688, wishing to overturn Protestantism—the better to establish his tyranny—issued his notorious proclamation, setting aside the laws of the land and subverting the English Church. He commanded all Bishops and other ministers of religion to read the illegal proclamation on a day fixed. Seven Bishops presented to him a petition in most decorous language, remonstrating against the Proclamation, and asking to be excused from reading it to their congregations. The king consulted with Father Petre,—a Jesuit, his confessor—on the matter, and had the bishops brought to trial for a misdemeanor, for publishing "a seditious libel in writing against his majesty and his government." It was "obstructing an officer."
Then the question before the trial-jury was, Did the seven bishops, by presenting a petition to the king—asking that they might not be forced to do an act against the laws of England and their own consciences—commit the offence of publishing a seditious libel; and, Shall they be punished for that act? All the judges but two, Holloway and Powell, said "Yes," and the jury were so charged. But the jury said, "Not guilty." The consequence was this last of the Stuarts was foiled in his attempt to restore papal tyranny to England and establish such a despotism as already prevailed in France and Spain. Here the jury stood between the tyrant and the Liberties of the People.
Gentlemen of the Jury, let me show you how that noble verdict was received. Soon as the verdict was given, says Bishop Burnet, "There were immediately very loud acclamations throughout Westminster Hall, and the words 'Not guilty,' 'Not guilty,' went round with shouts and huzzas; thereat the King's Solicitor moved very earnestly that such as had shouted in the court might be committed. But the shouts were carried on through the cities of Westminster and London and flew presently to Hounslow Heath, where the soldiers in the camp echoed them so loud that it startled the king."[125] "Every man seemed transported with joy. Bonfires were made all about the streets, and the news going over the nation, produced the like rejoicings all England over. The king's presence kept the army in some order. But he was no sooner gone out of the camp, than he was followed with an universal shouting, as if it had been a victory obtained."[126] "When the Bishops withdrew from the court, they were surrounded by countless thousands who eagerly knelt down to receive their blessing." Of course the two judges who stood out for the liberties of the citizens, were removed from office!
5. Here is another remarkable case, that of William Owen, in 1752. These are the facts. In 1750 there was a contested election of a member of Parliament for Westminster. Hon. Alexander Murray, an anti-ministerial member of the Commons, was denounced to the House for his conduct during the election, and it was ordered that he should be confined a close prisoner in Newgate, and that he receive his sentence on his knees. He refused to kneel, and was punished with great cruelty by the bigoted and intolerant House. Mr. Owen, who was a bookseller, published a pamphlet, entitled "The Case of Alexander Murray, Esq.," detailing the facts and commenting thereon. For this an information was laid against him, charging him with publishing a "wicked, false, scandalous, seditious, and malicious libel."
On the trial, the Attorney-General, Ryder, thus delivered himself:—