Bushel's Case

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Bushel’s Case (1670) 124 E.R. 1006 (also spelled "Bushell's Case") is a famous English decision on the role of juries. It also confirmed that the Court of Common Pleas could issue a writ of habeas corpus in ordinary criminal cases.[1]

Background[edit]

Sir John Vaughan, Chief Justice of the Court of Common Pleas, rendered his most famous decision in Bushel's Case

Bushel's Case arose from a previous case involving two Quakers charged with unlawful assembly, William Penn and William Mead. They had been arrested in August 1670 for violating the Conventicle Act, which forbade religious assemblies of more than five people outside the auspices of the Church of England. The jury found the two "guilty of speaking in Gracechurch Street" but refused to add "to an unlawful assembly". The infuriated judge charged the jury that they "shall not be dismissed until we have a verdict that the court will accept".

The jury modified the verdict to "guilty of speaking to an assembly in Gracechurch Street", whereupon the judge had them locked up overnight without food, water or heat. Penn protested this and the judge ordered him bound and gagged (it is not known whether this order was carried out). Finally, after a two-day fast, the jury returned a not guilty verdict. The judge fined the jury for returning a verdict contrary to their own findings of fact. Penn protested that this violated the laws of the Magna Carta and was forcibly removed from the court.

The judge found the jury in contempt of court and removed them to prison. Edward Bushel, a member of the jury, nonetheless refused to pay the fine.

Decision[edit]

Bushel petitioned the Court of Common Pleas for a writ of habeas corpus. Sir John Vaughan, Chief Justice of the Court of Common Pleas, initially held that the writ should not be granted, saying that it was King's Bench that should issue writs of habeas corpus in ordinary criminal cases and that Common Pleas could issue the writ only on a claim of privilege of the court (e.g., if the petitioner were an attorney of Common Pleas); the other justices issued the writ, however.[2] Vaughan ruled that a jury could not be punished simply on account of the verdict it returned, but that individual jurors could still be punished if it could be demonstrated that they had acted improperly.[3]

Notes[edit]

  1. ^ R. J. Sharpe, The Law of Habeas Corpus (Oxford: Clarendon Press, 1989), 18.
  2. ^ Paul D. Halliday, Habeas Corpus: From England to Empire (Cambridge, MA: Belknap Press, 2010), 235–36.
  3. ^ Kevin Crosby, "Bushell's Case and the Juror's Soul" (2012) 33(3) Journal of Legal History 251, 252.

References[edit]

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