According to Clarendon, Sir John Kelyng (pronounced ‘Keeling’) was ‘a person of eminent learning, eminent suffering, never wore his gown after Rebellion, and was always in gaol’. As a judge, he bound over Samuel Pepys’ cousin Roger and presided over the trial of Robert Hubert, a French watchmaker who (falsely) confessed to starting the Great Fire of London by propelling a fireball into a baker’s house on Pudding Lane. Kelyng had never believed that Hubert’s confession was genuine; after he was hanged, the captain of the Maid of Stockholm confirmed that Hubert had been onboard the Swedish ship when the fire began.
An irascible and aggressive Chief Justice, Kelyng fined and imprisoned jurors with whose verdicts he disagreed, a practice which perturbed Sir Matthew Hale in A History of the Pleas of the Crown. In Wagstaffe’s Case (1664) 1 Keble 938. Kelyng, sitting as a trial judge, fined the members of an Old Bailey jury 100 marks each for refusing to convict certain defendants accused of attending a Quaker meeting. The Court of King’s Bench (with Kelyng presiding) upheld his decision: ‘if the Court cannot fine, the law would be very defective’.
Strengthened in his resolve, Kelyng continued his campaign. In 1666, he imposed large fines on jurors who insisted on returning a verdict of manslaughter after he instructed them to find murder. In 1667, he fined Somerset grand jurors for doing the same: when the jurors protested that he was violating Magna Carta, Kelyng replied ‘Magna Carta, Magna Farta’. Later in 1667, impeachment proceedings began against him in the House of Commons for ‘his severe and illegal fining and imprisoning juries’. At the conclusion of one of the trials examined by the House, where the Recorder of London had sought to delay the payment of the fine, Kelyng had refused, making it clear that ‘he would make them know themselves’ as they were ‘peremptory saucy fellows’.
Following extensive debate the House determined that the Chief Justice should not be impeached, but that fining and imprisonment were, nevertheless, illegal; and that the drafting of a bill should begin ‘against Menaces, Fines and Imprisonment of Juries and Jurors’. One of the Members who spoke in support of the bill was John Vaughan: about him Clarendon said he lived ‘as near an innocent life as the iniquity of that time would permit’. The bill failed at committee stage; for Vaughan, this was unfinished business.
William Penn was a Quaker who would one day found Pennsylvania. On 14 August 1670, he and William Mead were addressing a large crowd in Gracechurch Street. They were arrested by constables holding warrants signed by the Lord Mayor. The warrants permitted arrest for ‘preaching seditiously and causing a great tumult of people’. The two men were charged under the Conventicles Act 1670—a ‘conventicle’ was any religious assembly outside the Church of England. The Act made it a fineable offence to attend one. Penn and Mead refused to pay the fine, and instead demanded trial by jury, as they were entitled to by the Act; and by this route they found themselves at the Old Bailey, the principal London criminal court which was the equivalent of the provincial assize courts.
The bench consisted of Sir John Howel, the Recorder; the formidably named Thomas Bloodsworth; John Robinson, of whom Samuel Pepys thought very little, calling him a ‘bufflehead’ and a ‘coxcomb’; and, as an observer, the Mayor of London, Sir Samuel Starling. The proceedings started badly: Howel fined Penn and Mead for refusing to remove their wideawake Quaker hats. The indictment now alleged various offences at common law, including riot: the Conventicles Act 1670 was no longer anywhere to be seen. Penn questioned the indictment’s foundation and appealed to the jury, asking whether ‘the proceedings of the court are not most arbitrary, and void of all law’; the real question, he explained, was whether ‘this Indictment be legal’.
Although the judges gave Penn’s entreaty curt and unsympathetic treatment, it did not fall on deaf ears. Eight jurors were prepared to convict, but four were not. In the face of judicial threats and insults, the jury returned a verdict of guilty only of ‘speaking in Grace-church street’. This was not enough, as Howel knew: furious, he refused the verdict and sequestered them again. They returned with a verdict which still fell short of a conviction of a criminal offence. This led to the following exchange:
Recorder Howel: Gentlemen, you shall not be dismissed till we have a verdict that the court will accept; and 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.
Penn: My jury, who are my judges, ought not to be thus menaced; their verdict should be free, and not compelled; the bench ought to wait upon them, but not forestall them. I do desire that justice may be done me, and that the arbitrary resolves of the bench may not be made the measure of my jury’s verdict… You are Englishmen, mind your privilege, give not away your right.
Recorder Howel: Stop that prating fellow’s mouth, or put him out of the court.
After a two-day stand-off, the jury acquitted Penn and Mead of any offence. Howel, now incandescent, fined the jurors 40 marks each (a mark was two thirds of a pound sterling) and imprisoned them until such time as the fines were paid. Penn and Mead were taken to Newgate (they had not yet paid their own fine for refusing to remove their hats). The jurors were taken to the same prison.
The foreman was Edward Bushel. He appealed to the Court of Common Pleas. This was unusual: it was the Court of King’s Bench which had jurisdiction over the case and which had decided that fining jurors was lawful. By 1670, the Chief Justice of the Common Pleas was none other than Sir John Vaughan. Bushel and his fellow jurors rightly suspected that Vaughan would be well disposed to their cause. There was, however, a problem: Vaughan’s initial view was that the Court of Common Pleas did not have jurisdiction to issue a writ of habeas corpus: ‘in a criminal case the plea is between the King and his prisoner’. In this, the Chief Justice found himself in a minority: his fellow judges outvoted him. The decision in Bushel’s Case 84 ER 1123 followed: Vaughan held that a trial judge may not fine or imprison jurors for returning a verdict contrary either to the judge’s view of the weight of the evidence or to the judge’s instruction regarding the law.
Inside the Old Bailey, a plaque commemorates the trial of Penn and Mead and the writ of habeas corpus in Bushel’s Case:
What the plaque does not reveal is the motivation behind one of the greatest constitutional decisions in the criminal law, the case in which the judges surrendered the power to fine jurors for disobedient verdicts. One reason for Vaughan’s opinion, voiced at the time of the decision, was political expediency. The effort to have Kelyng impeached demonstrated hostility to the fining of jurors in that most influential of quarters: Parliament. Whether or not the decision did in fact represent a tactical retreat for a practice that had become politically counterproductive, it remains the case that no judge is entitled to direct a verdict of guilty or refuse to accept a verdict of not guilty. This is the legacy of Bushel’s Case; it has stood for 350 years.
See further: ‘The Principle of Noncoercion: The Contest over the Role of the Jury in the Restoration’, in Thomas Andrew Green, Verdict According to Conscience: Perspectives on the English Criminal Trial Jury, 1200-1800 (University of Chicago Press, 1985)