Can the Judiciary be tyrannical? You bet! One of the reasons for this blog is to discover and point out instances of judicial tyranny. Any justice or judge that says that they believe in a “living Constitution” is telling you that there are no absolutes … such as the Constitution of the United States of America. They are telling you that laws are not what is put upon paper, but what the judge thinks is implied. Do you think that the framers of the Constitution thought that the “Commerce Clause” was the open door allowing the Federal Government to usurp all law making in our Republic. Did the proponents of the 14th Amendment mean to empower the Federal judiciary to reapportion all State legislatures? Where in the Constitution is power for the Supreme Court to over-ride State Constitutions in regards to marriage? They don’t have the Constitutional power! What we are seeing is “Judicial Tyranny!”
How do we gain our freedoms from tyranny? Some of you know about the jury foreman, Edward Bushell, in the sedition trial of Wm. Penn as described in this article from “Awesomestories.com” that I have reproduced here and some do not … this is for those who have not previously heard it to muse upon … _______________________
It was September 8, 1670. William Penn was still an Englishman, living in London.
A young man, he was 26 years old. He had not yet become an American. He had not yet founded the Commonwealth of Pennsylvania (Penn’s Woods which he named for his famous father, Admiral William Penn) or the City of Philadelphia (Brotherly Love).
However … he had already spent time in the Tower of London because the government disagreed with his views. Now Penn was on trial for his life, charged with sedition against the Crown.
If found guilty, Penn would be executed.
In one of the most famous, magisterial courthouses in the world – the Old Bailey – Penn defended himself. It was a time when defendants charged with a crime were not ALLOWED to have a lawyer. Perhaps that is why so many defendants who stood trial at the Old Bailey ended up dead. For most, the “fix” was in long before the trial started.
And … so it appeared for William Penn. A Quaker, Penn was upset with a law which made the Church of England the only place where people could worship. Called the “Conventicle Act,” the law prohibited any “tumultuous assembly” from meeting outside the Church of England.
Challenging the law, Penn called a meeting at Gracechurch street in the City of London. He preached a sermon which resulted in a “tumultuous assembly.”
He was promptly arrested.
Twelve men from the City of London were selected as jurors.
Ten judges, including the Lord Mayor of London, made up the court.
Because Penn published the trial transcript, in 1670, we have a good record of events. Things did not go as the court planned.
The judges thought trial would be a simple, one-issue case: Did William Penn preach at Grace Church? If the answer was yes (and the facts were clear – he did), the case was over. The “Conventicle Act” proscribed the rest of the story. If he preached then he CAUSED a “tumultuous assembly” by application of the law.
As it happened, however, Penn’s jury didn’t like the law. And … they did not like how the court treated Penn during the trial.
Upset with Penn’s deft ability at questioning the judges on points of common law, the court locked Penn in the “bale dock.” The jury could hear, but no longer see, Penn during the trial.
When the jury reached its unanimous verdict, the court was shocked. “Guilty of speaking in Grace Church.” That was the end of the verdict. The Lord Mayor of London shouted at the jury:
Was it not an unlawful assembly? You mean he was speaking to a tumult of people there?
No, the jury said.
No, we did not find that.
Thinking the jury would respectfully give the government an unrespectable verdict, the Lord Mayor was beyond himself. The jury would not budge.
The court recorder said:
Gentlemen, you shall not be dismissed until you bring in a verdict which 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.
Penn’s jury was willing to starve for it.
As soldiers pushed the jurors to the jury room, Penn shouted:
Ye are Englishmen, mind your privilege, give not away your right.
The jurors replied:
Nor will we ever do it.
Two days passed. The jurors had:
- No food.
- No water.
- No heat.
- No tobacco.
- No rest-room facilities.
But … they did not change their minds.
In today’s world, after the jury renders its verdict, the trial is over. In Penn’s world, the court ended the trial without accepting the verdict.
The jurors were fined and sent to Newgate Prison where they were to remain until their fines were paid.
The court made a serious misjudgment regarding four of Penn’s jurors. Led by the foreman, Edward Bushell (a man of property and substance), they held firm. The other eight gave in to the demands of the court and were freed.
Nine weeks passed. Conditions at Newgate Prison were more than deplorable. Jurors were often soaked in their own urine and smeared with their own feces.
Finally, England’s high court got involved.
The Lord Chief Justice, Sir John Vaughn, freed the jurors in response to Bushell’s Writ for Habeas Corpus (bring up the body). It was the first time – in a decision known as “Bushell’s Case – that the High Court of Common Pleas had issued such a writ.
Penn’s case, and his jury, changed the law. In the future, jurors would not be required to rubberstamp the agenda of government officials.
For the first time, government had met jurors whose “Liberty was not for sale.”
William Penn never forget the outrage against him and his jurors.
When he came to America, and founded his colony, Penn’s laws were a model of freedom. (Penn’s Treaty with Native Americans, based only on verbal representations, was never broken by either side.)
Immigrants flocked to Pennsylvania. As an example of his approach to government, compared to the Crown’s approach, Penn reserved the death penalty for murder and treason. Britain used it for 200 different offenses.
Penn also never forgot the effects of the Conventicle Act.
By calling religious dissent “sedition,” the government set up an enrichment program for itself. Sedition, a serious crime against the Crown, allowed the government to throw thousands of people into prison and take all their lands and property. Penn’s wife and her family had lost their family estate through such “legal” shenanigans.
In America, thanks to William Penn, the founders of the United States had a great model to follow when they wrote the Constitution. And … thanks to Edward Bushell and his colleagues, today’s juries can reach a just result even when it is not the popular thing to do. _______________________
… Part of Penn’s defense was the guarantee in the “Magna Carta” of the trial by jury of your peers and the absolute sanctity of the deliberating jury. You can rest assured that if the jury room had not been sacrosanct that the judge in this case or his minions would have been in the room threatening the jurors individually. Also it is generally unknown that the jury is a tryer of law as well as fact, a truth which is almost never conveyed to a jury in cases in the United States. But the fact is that no one can be held to account for a vote in the jury room … because the vote there is factually and legally secret. So then, how could the Court legally know how you voted in order to prosecute you?
The Framers provided for control of not only Executive, Legislative, but Judicial caprice. I suggest that you study the 10th Amendment to see how patriots like Patrick Henry, Melancton Smith, Richard Henry Lee and George Clinton addressed the PROBLEM … and then think about what we should do!