The previous article in this series set out a concise description of the different evolutionary states of human existence can be found amongst Gnostic texts1 where one can recognise three basic levels of human existence:
These states of existence are all constructed by mankind to varying levels of perfection.
One of the characteristics of humans at the lower state of existence is that insecurity can attain such an intensity that it creates the motivation for self-preservation in the face of threats, at the expense of others. Over time societal evolution has been accompanied by the creation of various "institutions" that aim to extend preservation and protection of individuals in the context of society in general through laws, education, and the creation for forums for the peaceful resolution of disputes. As part of this evolution three other types of institution have evolved over time in the form of political parties, large commercial companies and the media. The more recent characteristics of this co-existence is that the institutions created to protect and promote the wellbeing of people in general have become heavily inluenced by legislators, that is, politicians who are, in general, members of political parties. Political parties have come rely on the media to attempt to influence the public discourse on issues of social concern. The facility with which political parties succeed in using the media depends in good part on their supporting economic agendas that benefit the commercial companies who also happen to fund political parties and join siper pacs.
Because the politicians feel that they depend upon this support in order to get elected their motivation for self-preservation shifts from representing those who vote (the electorate) to those who provide the media support and financial contributions to the political party.
The regulatory environments, originally designed to protect the public suffers from a disorientation away from societal and public need towards the interests of commercial interest groups. Many regulatory agencies become populated not by independent professionals but rather by people placed there by commercial companies so as to run "extra-constitutional" regulatory agencies. This has happened in the areas of banking and media in particular. The media operators promote their self-preservation by serving the same commercial and political interests and cease to be a genuine "free press" that holds government to account on issues of interest to the general public. This is no longer a function upheld, even although under the US Constitution, for example, that is supposed to be one of their primary functions.
As a result the ability of people to declare their personal needs in a frank and plain fashion finds no platform, no medium and the tendency has been for any criticism of existing norms to be considered to be aberrant, disloyal or even sedition. As a result whistleblowers are hounded, anyone reporting on dishonesty or irregularities, as is required in the job descriptionsof most people, only find themselves becoming the target of of the very institutions whose rules they follow. Speaking truth to power has become an impossible and thankless task in an environment where the political system no longer follows the constitutional norms of striving to promote the happines and wellbeing of mankind.
A Trial by Jury - 16701
Jury decisions have been another historic means whereby advances in constitutional principles have been introduced directly into law. Juries benefit from the direct participation of the community conscience, an ancient concept traceable to the issuance of the Magna Carta of 1215 (16). The Levellers were champions of the jury; they reiterated the importance of trial by jury in the defence of individual freedom in most of their writings.
A challenge to the state religion
A celebrated case concerning William Penn, a leading Quaker, provides an example of the remarkable impact a jury could have on the law and constitutional principles. In England, during the seventeenth century, Quakers (the popular name for Christians who were members of the Religious Society of Friends founded by George Fox (17)) were perceived to be close to heretical. A specific source of irritation to clerics was their approach which based the logic of their arguments on self-evident truths concerning human nature; such statements were therefore difficult to refute. Even more damaging was that Quakers saw no need to have clerics as part of their religion. This in turn caused them to be perceived as holding the clerics of the Church of England in a position of questionable esteem. The Quakers initiated a widespread questioning of orthodox state religious beliefs by pointing to a more direct, simpler and practical interpretation of human behaviour, which they considered to be more attuned to the essence of the teaching of Jesus. Such messages were spread in public gatherings.
A jury resists
In 1670, the Church finally reacted, and accordingly the State, by arresting William Penn who had addressed a Quaker congregation in Gracechurch Street in London because soldiers had prevented them entering their own meeting house. He was accused of causing a riot and placed on trial for having violated the Conventicle Act. This forbade public religious meetings not managed by Church of England clerics (18). But the jury acquitted Penn. The jurors were put in prison. They were refused food for several days and for as long as they returned the not guilty verdict.
One juror, Edward Bushell, identified as the individual not agreeing with the guilty verdict, was a wealthy businessman, said that his liberty was not for sale. On appeal, another English court, the Court of Common Pleas, issued the first ever writ of habeas corpus to free Edward Bushell. Habeas corpus (19) is a legal right of anyone who has been imprisoned to be brought before a judge to determine whether or not there is justification for that person being held. This appeal resulted in all jurors being set free. Had Bushell and his fellow jurors not acted in such a steadfast manner it is likely that William Penn could have been heavily fined or transported (banished to work as a slave).
Significance of the precedents established by this trial
The outcome of this single case set several important precedents.
No wrong verdict
A fundamental precedent created by this outcome was that juries cannot be considered to bring a wrong verdict.
Nullification of law - religious freedom
The not guilty verdict established the fact that jurors can nullify laws. In this case they effectively destroyed the Act making the Church of England the only legal religion and thereby gave a significant impulse to increased religious freedom in England.
Trial subject to community conscience
This trial also served to underwrite the importance of trial by jury involving the community conscience as opposed to trial by a tribunal of judges since they would have upheld the unfair and arbitrary law.
Finding of no malicious intent a basis for nullification
Since the jurors considered the law to be unfair and that there was no malicious intent on the part of Penn, that is he had not set out to harm anyone, then they nullified the law.
No arbitrary arrest & imprisonment
This case also provided a practical example of the application of an important provision that people cannot be imprisoned, without good cause, through arbitrary arrest and that all have the right to come before a judge to determine if there is justification, under the law, for their arrest (habeas corpus (19)). The more rapid and positive conclusion to this case was achieved by the application of habeas corpus meant that the jurors did not just remain in prison to be forgotten but all were justifiably released. This terminated the suspension of application of Penn's acquittal by the first court. This successful conclusion, of course, depended upon the impartial and sound decision by the judge at the habeas corpus hearing at the Court of Common Pleas.
Equality of all before the law
This case was an important demonstration that all are equal before the law. The King and the interests of the Church had no privileged status or power over the defendant before the law.
Equality guaranteed by jury
This case provided a vitally important example that the equality of all before the law was guaranteed not by the judge in the case, who favoured a guilty verdict, but by the presence and conduct of the community conscience in the form of a jury.
Free speech & peaceful assembly
The case also re-established freedom of speech and the right to peaceful assembly.
Juries continue in England & begin to travel
William Penn, who later established the Quaker colony of Pennsylvania, introduced trial by jury to that colony's legal system long before American independence or the drawing up of the American Constitution.
As can be seen from this single case the presence of a jury could have the effect of protecting the individual freedom of an accused to nullify a law and to set legal precedents. We return to review, later on, how after 1670 other jury decisions gave yet further impulses to shape other fundamental constitutional principles designed to defend individual freedom.
Upholding preferences forever
A remarkable outcome of this case was that the free expression of preferences was upheld at two levels. One was the upholding of the preferences of William Penn against the preferences of the state. The other was the community conscience, as represented by the members of the jury, upheld a preference for what they considered to be common expectations of behaviour in favour of religious tolerance and the right to peaceful assembly. They considered the law on this question to be unfair. Their decision on this matter effectively forced their preferences of what constituted normal expectations of behaviour onto the state.
The outcome was therefore that, from that time onwards, specific preferences of the community were reflected in and upheld at law without the involvement or intermediation of political parties, Parliament, government or legislative acts.
Perhaps one of the most significant political outcomes from this trial was the impulse it gave to, as well as the statement it made concerning, secularism. This is because it broke the absolutism of the law of the Church through an act by a secular court. The foundation of secularism as that of the affairs of man was particularly emphasized by the decision having been taken by the jurors consisting of "laymen" and not by a judge.
1 This article is based on Chapter 5, "A Trial by Jury - 1670 " in "The Briton's Quest from Freedom - Our unfinished journey" (HPC, Portsmouth, 2007, 418 pages) a book written by Hector McNeill, the British constitutional economist. The jury has established many protections of individuals and constituents against state abuse or excessive restrictions and which today are referred to as human rights. This "leadership" has come from the people, driven by the community conscience and has seldom come from politicians.