The jury withdrew again, and after an interval returned again, and delivered the same verdict.

66

The Recorder was furious. Speaking to Bushel he said, You are a factious fellow. I will set a mark upon you; and while I have anything to do in the city, I will have an eye upon you."

Mayor." Have you no more wit than to be led by such a pitiful fellow. I will cut his nose" (1).

Penn." It is intolerable that my jury should be thus menaced... What hope is there of having justice done when juries are threatened and their verdicts rejected. I am concerned to speak, and grieved to see such arbitrary proceedings. Did not the Lieutenant of the Tower (Robinson) render one of them worse than a felon ?" &c.

Recorder." My Lord, you must take a course with that same fellow."

Mayor."Stop his mouth, gaoler, bring fetters; stake him to the ground."

Penn." Do your pleasure; I matter not your fetters."

(1) Shewing as a loyal subject his desire dutifully to imitate his “most religious and gracious King," who had ordered assassins to commit that outrage on Sir John Coventry, on account of words used in the Parliament at that time assembled." If Oliver Cromwell had perpetrated such an act of cowardly revenge! Hume is as usual servile: "The King received not the raillery with the GOOD HUMOUR THAT MIGHT HAVE BEEN EXPECTED!...... Sands O'Brian, and other officers of the guards, were ordered to waylay him, and set a mark upon him. He defended himself with bravery, and was disarmed with difficulty. THEY CUT HIS NOSE TO THE BONE." This is certainly a proceeding which might disappoint the most modest expectations of good humour, and is, indeed, hardly consistent with what is more important in a King, common honour and humanity. Many a man was hanged at every assizes for a slighter offence, down to the year 1830. Louis 14 never was guilty of so infamous an outrage. When Lauzun told him he had broken his word (a far more grievous insult to Louis than Coventry had offered to Charles), he flung his cane out of window, lest he should be tempted to strike a gentleman. "La plus belle action de sa vie," St. Simon calls it.

Words that were inserted in the Liturgy for Charles the Second.

And then the Recorder made a speech, the most infamous perhaps that ever came from the lips of an English judge, and whichclearly shewed the principles which the advocates of the Stuarts would fain have planted in our soil:

POLICY AND

"TILL NOW I NEVER UNDERSTOOD THE REASON OF THE PRUDENCE OF THE SPANIARDS IN SUFFERING THE INQUISITION AMONG THEM: AND CERTAINLY IT NEVER WILL BE WELL WITH US TILL SOMETHING LIKE THE SPANISH INQUISITION BE IN ENGLAND."

Such was the language to which, within ten years from the return of the Stuarts, the countrymen of Hampden and the contemporaries of Sydney were obliged to listen, in the metropolis which had once been the citadel of freedom, from the Bench of justice.

The Recorder then told the jury that they should bring in another verdict or starve, and "I will have you carted about the city as in Edward the Third's time."

Foreman."We have given a verdict, and all agreed to it; if we give another, it will be to save our lives."

Mayor.-"Take them up."

Officer." My Lord, they will not go up."

The Court adjourned till seven next morning, and the jury then brought in both prisoners Not Guilty, "to the great satisfaction of the assembly."

The character of Penn has been of late much attacked in an eloquent and elaborate history; and I do not possess sufficient knowledge of the details of his life to pronounce upon the justice of the accusations brought against him. On this occasion his conduct undoubtedly entitles him to our good opinion. But still more patriotic, and still more deserving the imperishable gratitude of Englishmen, is the conduct of Bushel, the juryman by whom he was delivered from the fury of his malignant enemies. Bushel's demeanour exhibits all the simplicity, all the courage, all the resolution by which the real English character, when cast into its happiest mould, is

ennobled, which make its anger terrible and its affections lasting, which distinguish its homeliness from vulgarity, and redeem its patience from contempt. There he sat,-earnest, sedate, respectful to those in authority over him, bearing the reproof of the scorner with modest silence, or refuting it with laconic brevity, but inflexible, resolved to perish before he would yield one iota of his birthright, or compromise his obvious duty:

"Sic fortis Etruria crevit,

Scilicet, et rerum facta est pulcherrima Roma."

Amid the dreary waste of crime and folly which our judicial annals at this period present, it is delightful to find a resting place on which one's thoughts, weary of horrours and sickened with meanness, may repose, and whence we may proceed over the barren desert on all sides of us, with fresh hope and invigorated confidence in the final triumph of what is good.

:

Bushel, though comparatively little spoken of, deserves a place among the greatest benefactors of his country. But for him, in all probability, trial by jury would have continued an empty sound and a statue to commemorate this peaceful victory, won in the cause of freedom, at that most critical period of our history, by this unpretending citizen, would be far better deserved, and could hardly be worse executed, than any one of those numerous proofs of adulation, bad taste, and contempt of public opinion, by which this metropolis is crowded and disgraced.

Let us follow this memorable struggle to its close. The Recorder imposed on each of the jury a fine of forty marks for their contumacy. Bushel refused to pay this, and was imprisoned. He sued out a writ of habeas corpus, whereby the sheriffs were ordered to have the body of Edward Bushel, with the day and cause of his detention, before the Court.

The sheriffs of London returned, that Bushel was committed to Newgate by virtue of a certain order made at the Court of

Sessions, which they set out, stating that it was for a fine imposed on him and the other jurors for acquitting Penn and Mead against the law of England, against full and manifest evidence, and the direction of the Court in matter of law; to the contempt of our Lord, the obstruction of justice, and the bad example of all other jurors in like case offending. Chief Justice Vaughan, in a judgment replete with masculine sense, luminous argument, and profound historical research, declared the return insufficient, and discharged the prisoner:

"The Court," said that great judge, "hath no knowledge by this return, whether the evidence given were full and manifest, or doubtful, lame, and dark, or, indeed, evidence at all material to the issue, because it is not returned what evidence in particular, and as it was delivered, was given. For it is not possible to judge of that rightly, which is not exposed to a man's consideration. But here the evidence given to the jury is not exposed at all to this Court, but the judgment of the Court of Sessions upon that evidence is only exposed to us; who tell us it was full and manifest. But our judgment ought to be grounded upon our own inferences and understandings, and not upon theirs.

"It was said by a learned judge, 'If the jury might be fined for finding against manifest evidence, the return was good, though it did not express what the evidence particularly was, whereby the Court might judge of it, because returning all the evidence would be too long.' A strange reason. For if the law allow me remedy for wrong imprisonment, and that must be by judging whether the cause of it were good, or not, -to say the cause is too long to be made known, is to say the law gives a remedy which it will not let me have, or, I must be wrongfully imprisoned still, because it is too long to know that I ought to be freed! What is necessary to an end, the law allows is never too long. Non sunt longa quibus nihil

est quod demere possis,' is as true as any axiom in Euclid.

Besides, one manifest evidence returned had sufficed, without returning all the evidence. But the other judges were not of his mind (m).

"I would know whether anything be more common, than for two men, students, barristers, or judges, to deduce contrary and opposite conclusions out of the same case in law? And is there any difference that two men should infer distinct conclusions from the same testimony? Is anything more known than that the same author, and place in that author, is forcibly urged to maintain contrary conclusions, and the decision hard, which is in the right? Is anything more frequent in the controversies of religion, than to press the same text for opposite tenets? How then comes it to pass that two persons may not apprehend with reason and honesty, what a witness, or many, say, to prove in the understanding of one plainly one thing, but in the apprehension of the other clearly the contrary thing? Must therefore one of these merit fine and imprisonment, because he doth that which he cannot. otherwise do preserving his oath and integrity? And this often is the case of the judge and jury.

"I conclude therefore, that this return, charging the prisoners to have acquitted Penn and Mead against full and manifest evidence, first, and next, without saying that they did know and believe that evidence to be full and manifest against the indicted persons, is no cause of fine or imprison

ment.

"And by the way I must here note, that the verdict of a jury, and evidence of a witness, are very different things, in the truth and falsehoods of them. A witness swears but to what he hath heard or seen, generally or more largely, to what hath fallen under his senses. But a juryman swears to what he can infer and conclude from the testimony of such witnesses, by the act and force of his understanding, to be the fact inquired after, which differs nothing in the reason, though (m) State Trials, vol. 6, p. 1002.