THE jury found the defendants not guilty, so the judges sent the jurors to prison. They were locked up without food or water, heat or chamber pots, and perhaps worst of all, without their tobacco pipes.

One of the judges told them: “You shall go together and bring in another verdict, or you shall starve.” His colleague insisted: “You shall not be dismissed until we have a verdict that the court will accept.”

This was the trial, which began in London on September 1 1670, of William Penn and William Mead, who’d been arrested for preaching Quakerism in a public place.

They were, beyond any doubt, guilty of breaking the law as it then stood. But the jurors believed that an old principle of English law allowed them to reach a verdict based on their consciences, in cases where the prosecution was unfair, absurd or excessive, or where the law itself was oppressive or unconstitutional.

No matter how many miserable nights they spent banged up, and no matter how purple-faced the judges became in their fury, the jury refused to budge. Eventually, the court gave the jurors large fines and sent them back to jail, where they would stay until they paid them.

Penn’s parting accusation to the bench, at least as recorded by his supporters, was: “If Not guilty be not a Verdict, then you make of the Jury and Magna Charta but a meer Nose of Wax.” (And we’ll be meeting another nose a bit later.)

The trial of Penn and Mead was a relatively routine persecution of religious dissenters, but what resulted from it was of immense importance in the development of law and liberty, not only in this country but in the US and elsewhere. It’s known to history as Bushel’s Case, after Edward Bushel, one of the jurors. It is said that when Penn called out to the jury: “You are Englishmen, mind your Privilege, give not away your Right,” it was Bushel who replied: “Nor shall we ever do.”

Nor did he. Along with some others, he refused to pay the fine, which would have got him out of prison. Instead, these holdouts applied to a superior court to be released on a writ of habeas corpus. In doing so, they were claiming that their continued imprisonment was illegal.

They won their case, with the Lord Chief Justice ruling that a judge “may try to open the eyes of the jurors, but not to lead them by the nose.” (He didn’t add “Wax or otherwise,” a rare example of a judge spurning an opportunity for a cheap laugh.) The men were released and their fines cancelled.

That phrase about leading by the nose has become one of the most crucial in all of common law. It is widely (though not universally) taken to establish beyond doubt the principle that the verdict belongs entirely to the jury, and cannot be dictated by the judge; that juries have an unassailable right to return whatever verdict they see fit, even if they think the accused did what he is accused of, and no matter what advice the judge may give them concerning the law. The independence of the jury, or “jury equity,” is absolute.

The right to return what is known in this country as a “perverse verdict” is seen by most people as a necessary line of defence, protecting the citizen against state tyranny. However authoritarian governments and courts might become, the English jury has the power to disarm bad laws. In the US, where the perverse verdict is called jury nullification, it was widely used in the 19th century against the Fugitive Slave Act, which made it a crime to assist a person who had escaped slavery.

As you would expect, the principle forged from Bushel’s Case has been under attack ever since, and possibly never more so than today. Repressive politicians and pundits demand an end to jury independence every time a protester is found not guilty — such as the pro-Palestine pair who squirted tomato ketchup over a statue in Parliament of Lord Balfour.

We’ve even had the astonishing spectacle of senior politicians accusing a jury of setting a precedent, despite that being legally impossible. Whether these outbursts come from genuine ignorance about basic law, or are deliberate lies designed to stir up trouble, is unclear.

There is, even so, a large marble wall plaque in the entrance lobby to the Old Bailey, commemorating the “courage and endurance” of the Bushel’s Case jurors, and noting that they “established the right of juries to give their verdict according to their convictions.” Any juror arriving for duty at the Bailey is likely to see it.

But some battles have to be won over and over. In 2023, a woman was arrested for contempt of court outside a crown court, during the trial of some environmental protesters, for holding up a cardboard sign on which she’d written “Jurors you have an absolute right to acquit a defendant according to your conscience.”

The government spent more than a year trying to prosecute the retired social worker for this non-existent offence, before a judge at the High Court finally ruled that the case must not proceed. He said that she had “accurately informed potential prospective jurors about one of their legal powers.”

As one activist noted at the time: “Repression has turned surreal. The government is criminalising people for literally upholding the law on a sign.”

You can sign up for Mat Coward’s Rebel Britannia Substack at www.rebelbrit.substack.com for more strange strikes, peculiar protests, bizarre boycotts, unusual uprisings and different demos.