Excerpt from

Chapter 5


The Bill of Rights
Its Origin and Meaning

by Irving Brant

Hats On and Hats Off

Watching for an opportunity to bring up his amendments, Madison found a lull in business on July 21 and moved to go into Committee of the Whole to consider them. The motion produced the same opposition as before and some new support that was disturbing. Gerry of Massachusetts and Thomas Tudor Tucker of South Carolina wanted action in that manner so that they could bring up amendments that might not (and certainly would not) be reported by a select committee. Fisher Ames of Massachusetts sensed their purpose. He was sorry to hear an intention avowed of "considering every part of the frame of this Constitution. It was the same as forming themselves into a convention of the United States." Madison's motion was defeated 34 to 15 (possibly to his unspoken satisfaction) and his amendments were referred to a committee of one from each of the eleven states that were represented in Congress.

It was a friendly committee with Madison representing Virginia. Several members, like Chairman Vining of Delaware, thought no amendments were necessary, but agreed that if any were to be submitted they should be of a kind that would satisfy the people. Thus the friendly disbelievers were ready to go as far as Madison, Egbert Benson of New York, Thomas Burke of North Carolina, Gerry and other active advocates of strong safeguards against federal infringements of liberty. The committee made its report in a week, and August 13 was set for its consideration.

On that day, when Richard Bland Lee of Virginia moved to go into Committee of the Whole to consider the report, Sedgwick of Massachusetts opposed the motion with evident dislike of the entire

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proposition. "Is it desirable," Madison said in reply, "to keep up a division among the people of the United States on a point in which they consider their most essential rights are concerned?" He put it up to the House, "in point of candor and good faith, as well as policy, to be incumbent on the first Legislature of the United States, at their first session, to make such alterations in the Constitution as will give satisfaction, without injuring or destroying any of its vital principles." If action was delayed until other business was out of the way, he feared that "gentlemen's patience and application will be so harassed and fatigued" as to cause a postponement to the next session.

Chairman Vining urged immediate action on the report, saying he was so impressed by Madison's anxiety that he would consent to postpone a bill of great interest to him, which had priority. The motion carried, and a fight started as soon as the House took up the shortened and sharpened committee revision of Madison's article on freedom of opinion:

"The freedom of speech and of the press, and the right of the people peaceably to assemble and consult for the common good, and to apply to the Government for redress of grievances, shall not be infringed."

Sedgwick scoffed at the amendment. It would make them appear trifling in the eyes of their constituents.

"What, said he, shall we secure the freedom of speech, and think it necessary, at the same time, to allow the right of assembly? If people converse freely, they must assemble for that purpose; it is a self-evident, unalienable right which the people possess; . . . it is derogatory to the dignity of the House to descend to such minutiae; he therefore moved to strike out 'assemble and.'

Benson replied. The committee, he said, "proceeded on the principle that these rights belonged to the people; they conceived them to be inherent and all that they meant to provide against was their being infringed by the Government." Sedgwick came back with sarcastic ridicule:

"If the committee were governed by that general principle, . . . they might have declared that a man should have a right to wear his hat if he pleased; that he might get up when he pleased, and go to bed when he thought proper; but he would ask the gentleman

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whether he thought it necessary to enter these trifles in a declaration of rights, in a Government where none of them were intended to be infringed."

Tucker, Gerry and Page challenged Sedgwick's argument, and the two latter congressmen got down to cases. The right of assembly, said Gerry, was an essential right, "and though it had been abused in the year 1786 in Massachusetts, yet that abuse ought not to operate as an argument against the use of it. The people ought to be secure in the peaceable enjoyment of this privilege, and that can only be done by making a declaration to that effect in the Constitution."

Gerry's remarks sound today like vigorous generalities, but everybody in the House knew what he was talking about. Had Gerry uttered his actual thoughts they would have run about like this: We know very well, Mr. Sedgivick, why you don't want the right of assembly to be given protection in the Constitution. We are well aware that in 1786, your excessive zeal against the Shaysites caused the farmers of your county to assemble with the intention of destroying your house.

Page of Virginia took up Sedgwick's scoffing illustration of superfluous guarantees:

"The gentleman from Massachusetts . . . objects to the clause, because the right is of so trivial a nature. He supposes it no more essential than whether a man has a right to wear his hat or not; but let me observe to him that such rights have been opposed, and a man has been obliged to pull off his hat when he appeared before the face of authority; people have also been prevented from assembling together on their lawful occasions. . . . If the people could be deprived of the power of assembling under any pretext whatsoever, they might be deprived of every other privilege contained in the clause."

That statement means nothing to twentieth-century America in the way of historical allusion. Was it equally meaningless to the men who listened to the spirited exchange between Page and Sedgwick? Why did Page say no more and why did no member of Congress ask what he was talking about? There was no need to do so. The mere reference to it was equivalent to half an hour of oratory. William Penn loomed large in American history, but even if he had never crossed the Atlantic, bringing the Quaker religion with

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him, Americans would have known about his "tumultuous assembly" and his hat. Few pamphlets of the seventeenth century had more avid readers than the one entitled "The People's Ancient and Just Liberties, asserted, in the Trial of William Penn and William Mead at the Old Bailey, 22 Charles II 1670, written by themselves." Congressman Page had known the story from boyhood, reproduced in Emlyn's State Trials to which his father subscribed in 1730. It was available, both in the State Trials and as a pamphlet, to the numerous congressmen who had used the facilities of the City Library of Philadelphia. Madison had an account of it written by Sir John Hawles, a libertarian lawyer who became Solicitor General after the overthrow of the Stuarts in 1688. Connected with the Penn-Mead case and no less familiar was the momentous one that resulted from it, the "Case of Edward Bushell for alleged misconduct as juryman." These two cases, taken together, involved a major portion of the basic freedoms guaranteed in the American Bill of Rights. The Penn-Mead preface addressed to "The English Reader" castigated the system of injustice under which they were prosecuted:

"Liberty of Conscience is counted a pretence for Rebellion, and religious assemblies [are called] routs and riots. . . . Oh, what monstrous, and illegal proceedings are these? . . . When all pleas for liberty are esteemed sedition, and the laws, that give, and maintain them, so many insignificant pieces of formality.

"And what do they less than plainly tell us so, who at will and pleasure break open our locks, rob our houses, raze their foundtions, imprison our persons, and finally deny us justice to our relief; as if they then acted most like Christian men, when they were most barbarous, in ruining such, as really are so."

Forbidden to preach inside any building, William Penn delivered a sermon to a quiet, orderly assembly of Quakers in Gracechurch Street, London. He was at once committed to jail, along with William Mead (a listener unknown to him before the meeting), who was included in order to obtain an easier conviction by charging conspiracy. The indictment averred that Penn and Mead and three hundred unknown did unlawfully and tumultuously assemble and Penn "did take upon himself to preach and speak . . . to the great disturbance of [the king's] peace; to the great terror and disturbance of many of his liege people and subjects." Both pleaded not guilty.

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The magistrates in the London Court of Sessions were Lord Mayor Samuel Starling, the Recorder and five aldermen. Although the narrative was Penn's, there was no challenge of his account of what followed the entry of the two men, bareheaded, for their trial.

"Mayor. Sirrah, who bid you put off their hats? put on their hats again."

An officer of the court enforced this order and the men were brought to the bar, hatted.

"Recorder. Do you not know there is respect due to the court?

"Penn. Yes.

"Recorder. Why do you not pay it then?

"Penn. I do so.

"Recorder. Why do you not pull off your hat then?

"Penn. Because I do not believe that to be any respect.

"Recorder. Well, the court sets forty marks apiece upon your heads, as a fine for your contempt of the court.

"Penn. I desire it might be observed, that we came into the court with our hats off (that is, taken off), and if they have been put on since, it was by order from the bench; and therefore not we, but the bench should be fined."

Three or four Crown witnesses testified to Penn's speaking and Mead's presence at the religious assembly, but when one of them said he did not see Mead, the Recorder asked the defendant a question (unrecorded) that brought this reply:

Mead. It is a maxini of your own law, 'Nemo tenetur accusare seipsum,' which if it be not true Latin, I am sure it is true English, 'That no man is bound to accuse himself.' And why dost thou offer to insnare me with such a question? Doth not this show thy malice? . . .

"Recorder. Sir, hold your tongue. I did not go about to insnare thee."

Penn now broke in to say that he would never recant "nor shall all the powers upon earth be able to divert us from reverencing and adoring our God who made us." He asked to know "upon what law you ground my indictment."

"Recorder. Upon the common-law.

"Penn. Where is that common-law?"

Repeating the question and getting only abusive answers he

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quoted from Coke's Third Institute that "Common-Law is common right," and complained that "You have not answered me; though the rights and privileges of every Englishman be concerned in it."

"Recorder. Take him away. My Lord, if you take not some course with this pestilent fellow, to stop his mouth, we shall not be able to do anything tonight.

"Mayor. Take him away, take him away, turn him into the bale-dock."

Denied the right to defend himself or to face his accusers, Penn was taken to the bale-dock, a walled-off corner of the courtroom with partitions that did not reach the ceiling. As he was led away he called out to the jury:

"Must I therefore be taken away because I plead for the fundamental laws of England? However, this I leave upon your consciences, who are of the jury (and my sole judges) that if these ancient fundamental laws, which relate to liberty and property . . . must not be indispensably maintained and observed, who can say he hath right to the coat upon his back?"

William Mead was then examined, and told the jury that he stood there to answer to an indictment full of lies and falsehoods. He was a peaceable man, but was accused of meeting with force and arms in an unlawful rout. "The lord Coke tells us what makes a riot, a rout and an unlawful assembly. A riot is when three or more, are met together to beat a man," or to enter his land by force to cut his wood or break down his pales.

The recorder thanked Mead with mock deference for telling what the law is." The mayor added, "You deserve to have your tongue cut out," and the prisoner was sent to join Penn in the bale-dock. The mayor and recorder then charged the jury in the absence of the defendants--a clear violation of the common law. It was proved, the recorder said, that Penn preached, Mead had "allowed of it," and the jury was to keep to and observe "what hath been fully sworn, at your peril." The court was telling the jurors that their sole duty was to return a verdict of "guilty as charged" if they found that Penn did preach in the street. If they went farther and decided that his preaching did not violate the law against rioting and tumultuous assembly, they would be subject to summary punishment. At

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this point, William Penn climbed above the wall of the bale-dock and cried out:

"I appeal to the jurors who are my judges, and this great assembly, whether the proceedings of the court are not most arbitrary, and void of all law, in offering to give the jury their charge in the absence of the prisoners . . . as Coke in the Second Institute . . .

"Recorder. Pull that fellow down, pull him down.

"Mead [also appearing above the wall]. Are these according to the rights and privileges of Englishmen, that we should not be heard, but turned into the bale-dock, for making our defence . . .

"Recorder. Take them away into the Hole."

The prisoners were pushed into the Black Hole and the jury went out. Learning after an hour and a half that they were divided the judges sent for them. "Mr. Bushell," said Alderman Robinson, you have thrust yourself upon this jury . . . You deserve to be indicted more than any man that hath been brought to the bar this day."

"Bushell. No, Sir John, there were three-score before me, and I would willingly have got off, but could not.

"Mayor. Sirrah, you are an impudent fellow. I will put a mark upon you."

The jury was sent off again and soon returned. The prisoners were brought in. The clerk asked the required question: was William Penn guilty in the manner and form of the indictment, or not guilty?

"Foreman. Guilty of speaking in Gracechurch street.

"Recorder. You had as good say nothing.

"Mayor. Was it not an unlawful assembly? You mean he was speaking to a tumult of people there?"

Some of the jurors "seemed to buckle," the report of the trial records, but Bushell and others "allowed of no such word as an unlawful assembly in their verdict." Sent out again, they came back with the same verdict about Penn and a complete acquittal of Mead. The mayor scored them for being led by such a silly, impudent, canting fellow as Bushell. The recorder demanded "a verdict that the court will accept; and you shall be locked up, without meat, drink, fire, and tobacco; . . . we will have a verdict, by the help of God, or you shall starve for it."

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"Penn. My jury, who are my judges, ought not to be thus menaced; their verdict should be free, and not compelled . . .

"Recorder. Stop that prating fellow's mouth, or put him out of the court.

"Penn. . . . (Looking at jury) You are Englishmen, mind your privilege, give not away your right.

"Bushell and others. Nor will we ever do it."

The jury was kept "all night without meat, drink, fire, or so much as a chamber-pot though desired." At seven o'clock Sunday morning they repeated the verdict, Penn was "guilty of speaking in Gracechurch Street."

"Mayor. To an unlawful assembly?

"Bushell. No, my Lord . . .

"Mayor. You are a factious fellow. I'll take a course with you. . . .

"Bushell. Sir Thomas, I have done according to my conscience.

"Mayor. That conscience of yours would cut my throat. . . . I will cut yours so soon as I can."

Twice more the jury went out and twice it came back its verdict stubbornly unchanged. Said the mayor, referring to Bushell: "Have you no more wit than to be led by such a pitiful fellow? I will cut his nose."

"Penn. It is intolerable that my jury should be thus menaced. Is this according to the fundamental laws? Are not they my proper judges by the Great Charter of England?

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

Ordered to go out again the jurors refused, the foreman saying: "We have given our verdict, and all agreed to it; and if we give in another, it will be a force upon us to save our lives." However, yielding to a sheriff's friendly plea, they deliberated through a fireless night in Newgate Prison and came back next day with a shorter verdict: William Penn, "Not Guilty." William Mead, "Not Guilty." The jury was polled: every man repeated the verdict as his own. Said the recorder:

"God keep my life out of your hands, but for this the Court fines you forty marks a man; and imprisonment till paid."

As this was an acceptance of the verdict, William Penn demanded his release. "No," replied the mayor, "You are in for your fines."

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"Penn. Fines, for what?

"Mayor. For contempt of the Court.

"Recorder. Take him away, take him away, take him out of the Court."

So, acquitted by a jury that refused to look upon public worship as riot or tumultuous assembly, Penn and Mead went to Newgate Prison for having obeyed the court's order to put on their hats. The twelve jurors went to prison for disobeying the court's order that the two Quakers be convicted.

This was the story that lay behind the verbal exchange between Congressmen Page and Sedgwick in the framing of the First Amendment. Every Quaker in America knew of the ordeal suffered by the founder of Pennsylvania and its bearing on freedom of religion, of speech, and the right of assembly. Every American lawyer with a practice in the appellate courts was familiar with it, either directly or through its connection with its still more famous aftermath, the habeas corpus proceedings in behalf of Edward Bushell and the eleven other jurors. Their imprisonment was fully in line with Tudor and Stuart practices, but came at a time when many Englishmen of all sects were getting sick of this perversion of the ancient jury system. It came at a rare moment also when high judges shared that feeling, and dared to express it.

Ten judges, headed by Chief Justice Vaughan of the Court of Common Pleas, were called together to pass on Bushell's writ. The "return" against it accused the jury of acquitting Penn and Mead against full and manifest evidence and against the direction of the court in matter of law." Such a return, said Vaughan, did not inform the court whether the evidence was full and manifest "or doubtful, lame and dark." Furthermore, it was no crime to free the men against "full and manifest" evidence unless the jury did so knowing the evidence to be full and manifest. What was more common than for two judges to reach opposite conclusions on the same set of facts?

With equally scathing logic, the ten high judges dismissed the charge--factually correct--that the jury acquitted Penn and Mead against the direction of the court in the matter of law. If the meaning was, that the judge having heard the evidence should say that it placed the law on the side of the plaintiff, or of the defendant, and the jurors were to find accordingly, then--said Vaughan--" the jury is but a troublesome delay, great charge, and of no use in determin-

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ing right and wrong." The proper course was for the jury to find out what the fact was, and for the judge to give discreet hypothetical suggestions of what the verdict should be if they find the fact to be thus or so.

In other words, Vaughan was applying to freedom of speech and religion the common-law principle in felony trials, that the judge advises the jury as to the law, but the jury decides both fact and law--whether, for example, a defendant charged with murder did the killing, and if so, whether it was murder, manslaughter or justifiable homicide. Chief Justice Vaughan and his fellow judges set a standard that emancipated jurors from the coercive pressure of the Crown. But Americans devoted to human liberties were well aware, in 1789, that the power of English juries to determine both law and fact in cases of the Penn-Mead variety was soon swept away in a heightened torrent of religious and political repression. Eighteenth-century England barely rose above the mockeries of freedom that caused Madison to decry the "detestable pictures of tyranny and cruelty" presented by Stuart and Tudor kings.

Congressman John Page spoke for an alarmed people and an informed people, and he spoke to an informed Congress, when he reached back into English history and brought forward, without needing to name it, one of the great examples of judicial tyranny founded on pretended law. Following the exchange between Page and Sedgwick, Representative Hartley turned to Sedgwick's motion to strikeout "and assemble" from the guarantee of the right to consult and petition for redress of grievances. It was his personal belief that the words were not essential, but as four or five states had called for an express declaration in the Constitution, he was disposed to gratify them:

"He thought every thing that was not incompatible with the general good, ought to be granted, if it would tend to obtain the confidence of the people in the Government; and, upon the whole, he thought these words ["and assemble"] were as necessary to be inserted in the declaration of rights as most in the clause."

This debate makes it clear that in framing the amendments, some members of Congress were going beyond their own ideas of necessity and accepting the more extreme views of the people at large. Sedgwick's motion to strike out "and assemble" as unnecessary "lost by a considerable majority."

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