Ep 1 p. 1
That's what I'm setting out
Ep 2 p. 14
Ep 3 p. 27
Strange Case of the Law Episode 1
'October, Westminster Abbey.' 'I've come to see one of the great set
pieces of English law... 'the ceremony marking the start of the new legal
year.' This is the legal establishment on show. Ritual, tradition, plenty of
wigs. It's colourful, it's splendid. The danger is that it can make the law
seem far removed from most people's lives. In fact, the public have been
at the centre of the legal system for centuries. Sitting in a jury, it is they
who decide guilt or innocence. Without precedent in history, English law
came to embody a fairness and equality barely known elsewhere. In this
series, I'll show how the story of England's law is nothing less than the
story of England's people. 'I'll explain how despite being forged by kings
and invaders, 'by the Church and politicians, English law has always
resisted 'becoming merely the tool of the powerful.' But this isn't an open
and shut case. 'The law has also been guilty of brutality and excess. 'Its
methods have sometimes been merciless. It has taken pioneering 'and
courageous individuals to put it back in its path 'of justice and fairness.'
The result, in my opinion, exceeds anything England has achieved in the
arts or the sciences. In its importance, and in its influence, English law is
this country's greatest gift to the world. 'My name's Harry Potter, and I'm
a barrister. 'I didn't come to the profession by a conventional route. 'It
was while working as a prison chaplain 'that I became interested in the
law.' 'Now I practice in London and I specialise in criminal defence.' Like
all my colleagues, I work within a very specific system, the English
common law. Its principles are practised in countries as far afield as
India and America, but it's quite different from the system used on the
Continent. Or even, in many respects, in my native Scotland. 'The term
common law doesn't just mean something 'practised uniformly across the
country. 'It denotes a system which places lay people 'at the heart of
justice, in the form of the jury. 'A system where judges largely base their
rulings 'on earlier, similar cases, actual practice, 'rather than on theory
or on legislation. 'And it's been that way for centuries.' This makes
venerable rituals like the annual ceremony in Westminster Abbey
perhaps less detached from reality than they might look. Because several
of the key features that characterise the courtrooms I work in today were
in place by the 14th century. So how did England, unlike its neighbours,
develop such a unique and enduring system?
to explore in this programme. The origin of the English common law. 'The
first thing any legal system needs is a set of laws. 'And I've come to
Rochester in Kent 'to track down the earliest-known English law code.'
'Established in the 5th century, 'Kent is thought to have been the first
Anglo-Saxon kingdom. 'Rochester's ancient cathedral and imposing
castle testify 'to the region's early predominance.' But Rochester boasts
yet another treasure, which for a lawyer such as me is even more
significant. 'Stored in the council archives is a book of enormous
importance, 'not just for the law but for the entire English-speaking
world.' This is the treasure I was telling you about. It's the Textus
Roffensis, or the Rochester book. And it contains a number of documents
but the most significant is the first, and it's this. A few pages of a text
dating back to 600. It's not only the first writing in English that we have,
so it's the beginning of English literature, it's the first law code that we
have. It's a very simple list of fines or compensation for accidents,
injuries, wrongs. If hair seizure takes place, 50 sceatta as compensation."
If an ear becomes struck off, one is to compensate with 12 shillings." If
one strikes off a thumb, 20 shillings." And this is perhaps the most
sensitive one. If someone disables a genital member, one is to buy him off
with three person payments." 'A person payment was the monetary value
ascribed to a man's life.' 'In this instance, the victim was compensated
for the children 'he would no longer be able to sire.' We tend to think
that the compensation culture is something imported from America. But
here it is, at the very start of English law. 'The laws in the Textus have
traditionally been attributed 'to the first English king to become a
Christian.' 'This was Aethelberht, who ruled Kent 'in the late 6th and
early 7th century.' 'So how did he fit into this early compensation
culture?' 'I asked the historian and linguist Carole Hough 'to explain how
the system worked in practice.' There are different ranks within Anglo-
Saxon society. There's the King, the aristocracy, the ordinary free man,
and the slave. And it is the rank of the victim that determines the amount
of compensation that they are entitled to. So if you damage the King's
toenail, he gets more than if you damage a slave's toenail? Don't even
think about damaging the King's toenail. Now in terms of enforcement,
do we know if this code was enforced, how it was enforced? The
responsibility for enforcing laws was very much on the families, the
relatives, the victims. Law was enforced by society from within rather
than by the King from the top. So you damage my son's ear and I come to
you and say, Well, the code says that's three shillings", and you hand over
the three shillings? And your family would be standing behind you,
saying "And we insist that you hand it over." And I think one of the things
we have to remember is that the laws would be a starting point for
negotiation between the families. So it wouldn't necessarily be 50
shillings that was handed over. It would be, "Look, this injury is worth 50
shillings." Well, I've got a cow here that's worth 10 shillings and a few
pigs that are worth six, so we'll make it up in that way to settle the
matter." 'The clear categories and prices of Aethelberht's code 'are
bound to have suited his Anglo-Saxon subjects, 'whose economy centred
around farming and livestock rearing.' At 40, four... 'Still, a law code
solely based on cost appears morally rather empty. 'Surely human beings
can't be treated like commodities or cattle?' You might accuse
Aethelberht's code of knowing the price of everything and the value of
nothing. But in the context of the time, it had much merit. The ability to
settle a dispute, to draw a line under a grievance, was crucial in the early
Anglo-Saxon era when the greatest threat to the stability of society came
not from external enemies but from internal feuds. 'Before the Royal
regulation of law, blood feuds were the only form 'of justice available in
Anglo-Saxon lands, and they could lead 'to escalating conflicts that
threatened the entire realm. 'By ensuring justice for the people,
'Aethelberht and his successors were safeguarding their thrones.' 'If laws
are the essential basis of any legal system, 'the next step is having
institutions to administer 'and implement them. Courts. 'Anglo-Saxon
society was ordered into areas known as hundreds, 'so-called according
to one theory 'because they may have contained roughly 100
homesteads. 'These had their own assemblies to deal with minor cases.
'More serious disputes and crimes were referred to the shire courts,
'forerunners of our county courts.' This mound goes by the characterful
name of Scutchamer Knob, sometimes corrupted to Scotsman's Knob.
Anyway, in Anglo-Saxon times, the shire court of Berkshire met here and
you couldn't have missed it. 'Sited prominently on the Ridgeway,
'assemblies here would have been visible for miles around.' 'Presiding
over the shire court might have been a senior cleric 'such as a bishop,
especially when a dispute involved the church, 'or otherwise a
representative of the King, 'a figure known as a shire reeve or sheriff.
'And trials would be resolved 'using a remarkably simple method of
proof.' Early trials were based on oaths. To prove your innocence, all you
had to do was to swear an oath that you weren't guilty and to get people
to come here to swear to your honesty. If you could rustle up the
prescribed level of support, you were off the hook. 'Just how many oath
helpers you needed 'depended on your social status and the nature of the
alleged offence. 'One 10th-century text stipulates '36 people were
required in a case of arson or murder.' To us, it all sounds very odd and
open to abuse. But this was a society suffused with religious faith. To lie
on oath was to risk damnation, and your friends might be less than keen
to support you if they considered you a liability who could compromise
their good standing in the community. So yes, it was simple, but that
needn't mean it was ineffective or unjust. 'The Anglo-Saxons didn't
distinguish 'between what we now regard as civil and criminal law. 'So
oaths could be used to resolve property disputes as well. 'Of course, if
two opposing parties swore contradictory oaths, 'it meant at least one of
them was committing a mortal sin. 'A situation the authorities preferred
to avoid.' There's a record of an important case being adjudicated on this
very spot in 990. A wealthy woman named Winfled lay claim to a couple
of estates and the suit was heard here at shire court under the auspices
of two bishops. Winfled's oath-helpers included such luminaries as the
Abbot of Abingdon and the Abbess of Reading. In the event the dispute
was settled by arbitration and compromise, the parties having been
urged not to resort to oaths. Which shows just how serious such a step
would have been. 'The system of hundred and shire courts expanded
across the country 'as successive Anglo-Saxon kings increased their
territory.' 'By the 10th century, England had a legal infrastructure
'unmatched in Europe, with its capital here in Winchester.' As the size of
their kingdoms and the scale of their power grew, the Anglo-Saxon
monarchs continued to issue law codes. But these now went well beyond
the old compensation-based system to include physical punishments such
as mutilation and death. The codes made an increasingly gruesome read.
'Around 925, 'King Athelstan proclaimed his first law code for England.
'Right at the beginning he decrees that no thief be spared 'who may be
taken red-handed, 'if he is older than 12 years and has stolen more than
8p.' 'And new crimes were beginning to emerge, 'reflecting important
social and economic changes.' Athelstan minted the first single currency
for England. This coin, in Winchester's Museum, bears the following
inscription. Athelstan Rex Tot Brit. King of all Britain. It's a tiny object,
but it embodies royal authority. And if you were caught making a
counterfeit, you were in a whole lot of trouble. Athelstan's code says If
the monier be guilty, let the hand be struck off that wrought the offence
and set up upon the money smithy. Nailed to the Mint. 'Anglo-Saxon law
had become much harsher 'because, in an attempt to increase its
effectiveness, 'kings had started to take over the administration of
justice. 'Any serious crime was now deemed an offence against the
Crown, 'a breach of the King's peace, 'and would be punished with
appropriate severity.' 'There was now, in effect, a tacit contract with the
people. 'By acting as the guarantor of justice, 'the King could claim fines
and forfeitures from the offender. 'In return, the injured party was given
the satisfaction 'of seeing the wrong-doer maimed or executed.' 'Some of
the best physical evidence for how justice operated 'in later Anglo-Saxon
England 'has been found on the outskirts of Winchester. 'The
archaeologist Andrew Reynolds took me to Harestock, 'close to the old
Roman road.' What was found here that makes it so special? Some
archaeological excavation uncovered the remains of 16 individuals
buried in a series of graves. The modern name Harestock is derived from
the old English shaffod stockan, which literally means heads on stakes. It
basically tells us that it's an Anglo-Saxon judicial execution cemetery. So
you can imagine here in the Anglo-Saxon period a traveller moving along
the road behind us, we're at a particularly prominent place in the
landscape here. You can see this rising ground. A very prominent place, a
series of poles with heads on sticks. A very dramatic sight for travellers.
So it's making a statement as well? It's sending a very clear message of
power and authority. When you look at the Anglo-Saxons' continental
neighbours, even though they have very highly developed legal culture,
they don't seem to have anywhere near the kind of approach to using the
landscape in a very precise way in terms of where criminals and outcasts
were buried. So what was happening in Anglo-Saxon England was
unique? It was indeed, Harry, yes. 'As a lawyer, I put great emphasis on
the quality of the evidence. 'The remains recovered from the Harestock
site 'are now kept in storage by Winchester museums. 'Andrew showed
me one example.' Now this is astonishingly well-preserved for somebody
who has been in the ground 1,000 years. To layman's eyes, there's
nothing here to indicate anything other than the sad death of a young
person. It was a very different picture when the body was actually taken
out of the ground because rather than the hands being to either side, as
they are here, when the body was excavated, they were found crossed
over each other underneath or behind the back. And that's a clear
indication, really, that you've got foul play or something that's not quite
usual going on there. But the greatest indication that this is not a normal
burial is the fact that the head, which you can see here at the correct
anatomical position, was actually found by the side of the leg. So how
was decapitation done? Well, almost certainly with a sword, probably
with the hands tied behind the back. If you take a look at this bone here
where the blade of the sword caught the underside of the jaw when the
person was executed. And that would be one blow, would it? That would
have been one blow. 'In the absence of a police force, the threat of death
or mutilation 'was a clear way of preventing crime but in later Anglo-
Saxon times 'it wasn't just punishment that was a deterrent. 'Even before
you were found guilty, the trial itself could be an ordeal. 'Literally.' 'In
common with much of Europe, 'the later Anglo-Saxons 'adopted an
additional method of determining proof. 'One which drew on the power
of the elements... 'of water, and of fire... 'and which invited God himself
to intervene in the trial.' This was the Judicium Dei, the judgment of God,
trial by ordeal. If you were suspected of a crime, you were subjected to a
ritualised but painful and dangerous test. God would come to the aid of
the innocent, but for the guilty, there would be no such comfort. The
ordeal was neither torture nor punishment... it was a mode of proof. Only
if you failed were you punished. 'Because of their religious element,
'ordeals were supervised by the clergy. 'Two main kinds of ordeal were
employed in England. 'The first involved carrying a piece of red-hot iron
in your bare hand.' Before the ordeal, the priest called upon God to bless
the hot iron, so that it would be a pleasing coolness to those who carry it
with justice and fortitude, but a burning fire to the wicked. The accused
had to walk a few paces holding the iron. The hand was then bandaged
and after three days was inspected to see if it were healing. 'If the wound
were clean, that was proof of your innocence, 'but if it had started to
fester, you were deemed guilty.' 'The second kind of ordeal was more
dangerous. 'You were bound and lowered into a body of sanctified water.
'And your guilt was determined by whether you floated or sank.' Now you
might assume that sinking meant you were guilty. After all, you were
much more likely to drown. But the belief was that the water was so pure
as to repel sin. Sinking indicated innocence. Floating was proof of guilt.
'Ordeals like these may sound barbaric 'but they were carried out in
Christian Europe for centuries. 'I asked legal historian John Hudson what
factors determined 'whether you were sent for ordeal in the first place.'
They seem to have been often proposed as a way of settling cases that
you couldn't settle in other ways. For example, if you don't have any
factual proof, no marks on the person who is accused, no evidence that
they are holding stolen goods, no blood on their hands. Then there's a
chance that no one will know who committed the offence, and then the
likelihood is that they would have to go to trial by ordeal. The number of
people who actually undergo the ordeal, having been threatened with it,
may well be much smaller. It seems to be a way of trying to scare people
either into confessing or very often into settling. This was the judgment
of God, so how often did God acquit in such circumstances? We have
quantitative evidence. We've got registers from the 13th century from
Hungary, which give us numbers of people going to ordeal and we find
that more than 50% of people get off. Why might the acquittal rate have
been so high? It must be physiological in some way. People have done
studies of throwing people into swimming pools and seeing how many of
them naturally float and how many of them naturally sink. And, of course,
carrying a hot iron should cauterise your hand. What convicts you, it
seems, in England, is not whether you're burnt or not... everyone would
be burnt - it's whether your hand is clean or foul. Has it turned pus-y or
not? What really matters to you is whether you are bound up thereafter
with good ointment and clean bandages. While officially God was
determining the outcome, it seems that human intervention was quite
possible at all stages of the ordeal. And nobody had greater control over
the process than the clergy. How often they might have given the
Almighty helping hand in declaring guilt innocence we'll never know, but
it's clear that the whole ordeal system ensured for the Church a central
role in the dispensing of justice. 'This raised an important question - who
was in charge of the law? 'The Church or the King? 'It would become a
thorny political issue 'but not for the Anglo-Saxon kings. 'Their role was
about to come to a sudden end.' One night in September 1066, Duke
William of Normandy landed with his army on the south coast. It is said,
here, at Pevensey Bay. The Norman invaders quickly exerted an iron grip
over the entire country. Which should have been bad news for the law of
the Anglo-Saxons, now a vanquished race. Except it wasn't. 'William
grasped an important principle for any ruler of England. 'It's always
better to go with rather than against 'the grain of the law. 'William had
political and practical reasons for this. 'He had invaded England 'because
he believed he had the right to the throne. 'If he wanted to be seen as the
true heir of Anglo-Saxon England, 'dumping or even damaging its legal
system 'would have been counter-productive. 'Besides, the hundred and
shire court system was highly organised 'and efficient by continental
standards.' The English, it appears, were rather better at running the
country than they were at defending it. 'However, one key innovation
introduced by the Normans 'was their favoured method of ordeal.' 'In
trial by combat, God would grand victory to the righteous. 'This was seen
by the wealthy as a more dignified means 'of resolving civil disputes than
hot iron or water. 'It could also be used in criminal cases.' This is the
sword you've just been fighting with? That's right, Harry. We have here a
couple of examples of swords of the early medieval period, looking a bit
like this. So if the person was engaging in a judicial combat, is of this
sort of sword that that person would use, depending on their status?
Presumably this cost quite a lot of money at the time. The equivalent
price would be that of a Mercedes Benz or a Rolls-Royce today. What was
the purpose of the combat? Was it to kill your opponent or just bludgeon
them into submission? Well, for a civil case, which would be about large
amounts of money or land, you would probably try to bludgeon them into
submission and by the time one opponent is on the ground and calls out
"I yield", it is probably equivalent to an out-of-court settlement in a large
civil case. My Lord! 'Criminal cases were an altogether less dignified
affair, 'often involving the kind of riff-raff 'who couldn't afford a decent
blade.' This wooden stick would have been a far more likely weapon in
trial by combat in a criminal case and, in so many words, you try to hit
your opponent where it hurts. Head, shoulder, arms, knees, feet, and all
the male places. Would you like to try? I would go like that, or like that,
boink? Yes. And what about that? I think so. There's no reason to believe
that this wouldn't have been sharpened to a very nasty point, and it may
even have had nails in it. 'Although combat was a means of establishing
proof, not a penalty, 'such a violent procedure sometimes saw the lines
become blurred.' When you beat the opponent to the ground, you might
as well carry on and kill them, because afterwards they'll be taken away
and executed anyway, either for the crime they were initially accused of
or if is the other party that gets beaten to the ground, for having
committed major acts of perjury. 'What might happen if you lost and
survived 'is told in one of the few accounts we have of 'an English judicial
duel.' A certain Thomas of Eldersfield near Gloucester was defeated in
combat by a man he'd been accused of wounding. Rather than having
him hanged, the judges, being merciful, ordered that he merely be
castrated and blinded. The victor and his family set about this task with a
degree of relish, throwing his eyes on the ground and using his testicles
as footballs, the local lads kicking them playfully at the girls. Norman
rule was far from being a disaster for English law. It allowed the people
to pursue their Anglo-Saxon legal traditions in the context of strong and
stable government. At least, that was the case for almost three-quarters
of a century. Then, in 1135, Stephen usurped the throne. Civil war
ensued and the country fell apart. 'For nearly two decades, from 1135 to
1154, 'England suffered what has been called both 'The Anarchy' 'and
the 19-Year Winter.' 'The result was a breakdown in law and order, 'a
myriad of unresolved disputes, a depletion of royal coffers 'and the
collapse of the King's authority.' The man who had to sort out this mess
was Stephen's cousin, Henry II, who came to the throne in 1154 aged
just 21. The main instrument he used was the law. To such an extent that
some historians have called him nothing less than the father of the
English common law. 'Henry realised that it wasn't sufficient just to issue
laws. 'The trick was to ensure their common, 'consistent and effective
implementation.' 'So in 1166, Henry established a system of roving Royal
Justices. 'These hand-picked officials represented a new level 'of
intervention by the Crown in English law. 'The Justices were to travel the
country, 'making sure that the law was being enforced by the shire courts
'and claiming all the fines that were due to the King.' The Justices
weren't mere functionaries. Henry was pulling out his big guns. The first
pair to set off included one of his chief ministers and the Earl of Essex.
They managed to get as far as Carlisle when the Earl rather
inconveniently fell ill and died. Before his demise, in the space of just a
few months, they'd managed to shake down half the shires of England.
'The Justices were able to ascertain how well local sheriffs were doing 'in
prosecuting offenders. 'And how much money was owed in fines to the
king. 'Here, in Lincolnshire, for example, they recorded more than 100
cases.' There's Simon Fitzwalter who owes 40 shillings for making a false
claim, and one Hugo de Cookton, who was fined a mark for absenting
himself from trial by duel. In total, over 250 was forfeit to the Crown.
Not a lot in today's money, but in 1166, that amount could buy you 20
knights or 165 soldiers for an entire year. 'As the Justices made their way
across the country, 'startling disparities emerged. 'While Yorkshire
reported 127 felonies, 'Wiltshire came up with a mere three,
'Worcestershire, just one, and Shropshire none.' Either these counties
had staggeringly virtuous populations or somebody wasn't doing their
job. 'This is where Henry's other big idea came into play. 'He decreed a
single set of legal procedures 'that were strictly to be followed
throughout England. 'Such standardisation was unprecedented in
Europe. 'And, crucially, from then on, 'members of the public would play
an essential role in the legal process. 'So-called juries of presentment
became common practice.' Juries of presentment didn't consider
evidence and determine guilt or innocence. Instead they were
representatives of local communities who had to report under oath all
the crimes committed in their area and to name those they deemed
responsible. So not juries in the modern sense, but a key precursor.
'Increasingly, the county sheriffs were sidelined 'and the juries were
required to present their reports 'to the Justices themselves. 'These
Justices were becoming a powerful body, 'both in the shires and in the
capital. 'There was now a central court firmly established at Westminster.
'It wasn't a Superior Court or Court of Appeal, 'but it was the base from
which the roving Justices set out 'and to which they returned. 'And it sat
in regular sessions of its own. 'In effect, it was Henry's legal
headquarters.' What was starting to emerge here was a body of judges,
as we would recognise them now, serving both at Westminster and in the
shire circuits and building up a pool of knowledge and expertise. It's easy
to imagine them getting together between sessions or just over a meal,
swapping stories, debating the finer points of legal practice, and using
this shared experience to shape their subsequent rulings. 'Accounts of
cases began to be written down, 'allowing them to be consulted, 'and the
first books about English law started to appear.' The Justices were
establishing a method that remains a defining characteristic of the
English legal system. They were making judgments based on precedent.
Common law wasn't just about consistency across the realm, it was also
about being consistent with previous decisions. 'The Westminster Court
mainly dealt with civil litigation. 'They would hear your suit more quickly
than a shire court... 'for a fee. 'Making money seems to have been an
important aspect of Henry's reforms, 'a point I raised with legal historian
Paul Brand.' How much is revenue-raising as opposed to making the
country safer an underlining priority for Henry? Clearly he was not
unaware of the fact that Justices brought in money. It would be wrong to
suppose that he didn't have that in mind at all in what he did, but there
were rather more profitable things for a king to do than ensuring justice.
He did not charge significantly large amounts for access to royal courts.
So he ensured that royal justice was affordable? He ensured that royal
justice was affordable to the normal man in the street. So he had very
high ideals as to his role, I suppose? He, as it were, reorientates the
English monarchy. He retools it as... an institution deserving the support
of the King's subjects because it provides justice for them. 'And that
justice was meant to be consistent across society. 'The common law
didn't discriminate, at least in theory, 'between the rich and poor.' But
one important group remained safely beyond the grasp of the common
law. Henry's attempts to deal with that problem would come to define his
reign and reach a head here in Canterbury. 'That problem was the clergy.
'They enjoyed their own legal system, Canon Law. 'If you were in holy
orders, 'you were subject solely to the jurisdiction of the Church. 'The
Crown couldn't touch you. 'No matter how serious the crime, the cleric
would merely be ordered 'by his bishop to purge his sin, usually through
penance, 'whereas a layman might be mutilated or hanged. 'That is,
unless they claimed "benefit of clergy." ' Benefit of clergy provided
perhaps the biggest loophole in English legal history. On the flimsiest of
grounds, you could claim to be a cleric, thus removing your sanctified
soul from the grasp of the secular authorities. Eventually, the benefit
could be claimed merely by reciting the first verse of Psalm 51. Have
mercy upon me, O God, according to thy loving kindness. According unto
the multitude of thy tender mercies, blot out my transgressions." 'The
inability of royal justice to prosecute criminous clerics 'represented
perhaps the most serious challenge 'to Henry's authority. 'So when he
appointed his close friend Thomas Becket 'as Archbishop of Canterbury,
'he did so on the expectation that under Becket's leadership, 'the Church
would conform and cooperate.' 'But Becket went native. 'Henry was NOT
amused.' Even when working full-time as a priest, I had little sympathy
for Becket and his stance. To defend the independence and rights of the
Church from secular intrusion is one thing, to protect literate murderers,
robbers and rapists from the full rigours of the law is quite another. The
clerical child abuse scandals of recent years are Becket's legacy. I can
well understand how Henry II got more than a little exasperated at the
pig-headed obduracy of his archbishop, and how he demonstrated that
frustration in an intemperate outburst to the effect of, Who will rid me of
this turbulent priest?" 'What happened next 'is one of the most famous
stories of Medieval England.' On the night of 29th December, 1170, the
story goes Becket was at evening prayer here in Canterbury Cathedral,
when he was confronted by four knights loyal to the King. They struck
him down with repeated blows from their swords, and they were so
ferocious that they sliced off the crown of his head, so that, in the words
of an eyewitness, The blood, white with the brain, and the brain, no less
red from the blood, dyed the floor of the cathedral." 'It's unlikely Henry
actually ordered Becket's murder. 'His archbishop's demise undermined
all that the king wanted, 'as public opinion rallied round the Church.
'Becket became a martyr, and a repentant Henry 'felt he could no longer
touch the issue of criminous clerics.' 'Although the Church may have
remained off-limits, 'Henry II had given the rest of his kingdom a lasting
legacy.' Henry and his advisers didn't reinvent law in England, but they
certainly gave it order, cohesion and a degree of uniformity unmatched
ANYWHERE in Europe. Now England didn't just have laws, it had a legal
system. A king born in France had laid the stable foundation upon which
today's English law could be built. 'Henry II understood royal authority
was best maintained in England, 'not through the arbitrary exercise of
power, 'but by being seen as the guarantor of justice. 'But perhaps even
he underestimated just how quickly the English 'would come to see
justice not as the King's gift, but as THEIR right. 'It was a lesson that his
son John would learn 'in a landmark moment in English history.' 'On 15th
June, 1215, 'King John rode from Windsor Castle to meet his barons, 'who
had pitched their camp by the water meadows at Runnymede.' On that
June morning, nearly 800 years ago, these meadows would have been
filled with thousands of people... soldiers, knights, barons, bishops, the
King himself... all awaiting something unprecedented in English history.
The king was about to put his seal on a document that had been forced
upon him by his subjects. 'John's disastrous French wars, his repeated
demands for money, 'and his abuse of royal courts to levy fines, 'had
alienated many of England's powerful barons. 'They had rebelled, forcing
the King to negotiate. 'The result was written down 'in the most famous
legal document in history... 'the Great Charter, Magna Carta. 'Its 63
clauses cover a wide range of royal concessions, 'but Magna Carta was
more than just a long list 'of legal and economic demands. 'It was a
groundbreaking recognition that the English people had rights.' Much of
Magna Carta may strike the modern reader as impenetrable, obscure,
and sometimes even trivial. But buried among the clauses dealing with
fish weirs and measures of ale are two of enduring significance. No free
man shall be seized or imprisoned, or stripped of his rights or
possessions, or outlawed or exiled, or deprived of his standing in any
other way. Nor will we proceed with force against him, or send others to
do so, except by the lawful judgment of his equals or by the law of the
land. And, "To no-one will we sell, to no-one deny or delay right or
justice." 'These few lines have been hailed 'as the origin of fundamental
civil liberties, 'including trial by jury. 'An agreement between the King
and the barons 'had somehow ended up guaranteeing the liberty of wider
society. 'To find out why, I went to meet an expert on Magna Carta.' What
the baronial opposition were doing to King John was clearly deeply
controversial. There were those who backed it, there were those who did
not. And there was much to play for. John knew that, the baronial
opponents knew that. The loyalty of the lower free-classes... knights,
sergeants and others - could not be taken for granted. These were
constituencies that had to be mobilised, won over. 'Magna Carta wasn't
just a legal document, 'it was an exercise in medieval public relations.'
Copies were almost certainly sent out to the shire courts of England, and
read out before the earls, the barons, sergeants, the freemen. This
reflects the efforts by the baronial opposition to broadcast the details and
the nature of the settlement. 'However, while the provisions of Magna
Carta 'were being promulgated throughout the kingdom, 'the settlement
between John and the barons was falling apart. 'Within months, they
were hard at battle in strategic Rochester.' John personally directed the
siege of Rochester Castle. Its eventual surrender in November was one
of the few glorious moments for John in his troubled reign. Not that he
had long to savour it. Dysentery killed him the following year. But Magna
Carta lived on. 'Magna Carta had been disseminated far too widely
across the country 'to be ignored or forgotten. 'Of what are believed to
be some 40 copies originally distributed, 'four still survive, including the
one sent to Lincoln.' At first glance, it's not much to look at. But it's had
perhaps more influence... in English and world history than any other
document. 'On two occasions of the greatest historical moment, 'Magna
Carta would become a clarion call against overbearing government.
'Preceding the English Civil War, it was cited by Parliamentarians
'contesting the authority of Charles I. 'In the 18th century, 'it inspired the
fathers of the American Revolution, 'and provided the basis for the
United States Constitution.' This is probably the most important extant
document in our history. '1215, the year Magna Carta was signed, 'was
perhaps the most momentous in English legal history. 'It was the year the
law outgrew not only the King, 'but also, the other great power in the
land.' The Church may have enjoyed its own separate legal system, canon
law, but as we've seen, it also maintained a strong foothold in the
common law, because only a cleric could preside over trials by ordeal. In
1215, that all changed for reasons that had nothing to do with events in
England. '900 miles away in Italy, 'Pope Innocent III banned priests 'from
blessing ordeals by water and fire 'on the basis that God's judgment
'wasn't at the beck and call of presumptuous mortals. 'Following the
withdrawal of the Church from the legal process, 'England had to decide
whether to follow much of Europe 'and adopt methods of proof dating
back to Roman law.' English law was at a crossroads. It could have
followed the route favoured on the Continent, where the authorities
would try to extract confessions by torture if necessary - the inquisitorial
system. Instead, England continued along her own exceptional path
towards trial by jury. 'Over the centuries, the role of "the man in the
street" 'had become steadily entrenched in English legal practice. 'From
the people who might back up your oath in Anglo-Saxon times, 'to Henry
II's juries of presentment who indicted local criminals.' 'These juries
were cheap. They tapped into local knowledge, 'and it was both logical
and common sense 'that they should be adapted to replace ordeals in
trials.' Now it was no longer the Almighty, but a rather less exotic
tribunal that would determine the outcome. The judge would ask the
members of the jury, when declaring whether the accused were guilty or
not, to give a truthful answer. In the Anglo-French of the time - aver-de.
Our "verdict". 'The first known English jury trial took place in 1220. 'A
woman condemned for murder, called Alice, 'accused five others of
criminality. 'They submitted to the judgment of their neighbours. 'In the
phrase of the time, ' "Putting themselves for good and ill upon a verdict."
'These neighbours decided that one was lawful, 'but that four were
thieves. 'And they were sent to the noose. 'By the late 13th century,
'juries were a familiar part of English law. 'Unlike modern ones, they
didn't weigh evidence, 'but came to a decision based on their own
knowledge or belief. 'For ordinary people to have such power in a society
'that was in other respects full of inequalities was revolutionary.' Your
peers had been given an authority that had previously been the preserve
of God. Your guilt was now decided in public by members OF the public,
independent of the state. The jury - the institution that most defines
English justice... truly begins here. 'By the end of the 13th century, we
can see a number 'of the elements of English law that remain with us
today. 'A unified set of laws across the country, the jury, 'the structure of
local and central courts, 'a body of judges who share and exchange 'their
knowledge and experience, 'and one other important part of our legal
system has begun to emerge.' Major civil suits often ended up being
heard at Westminster, irrespective of where they'd originated. But
suppose you live in a distant shire. Travelling to London to plead your
own case will certainly require lots of time and money, and dealing with
an expert Justice may be well beyond your capacity. So why not turn to a
new kind of practitioner who's come on the scene? Someone like me - a
professional lawyer. 'In fact, then, as now, 'there were two branches of
the legal profession.' 'You would appoint an attorney 'to act as your agent
and manage your case. 'The word comes from the Old French atorne - "to
appoint". 'But the actual pleading of your case in court 'would be done by
a sergeant. 'Attorneys and sergeants were the equivalent of today's
'solicitors and barristers.' 'And by the later 13th century, 'there were
around 30 sergeants practising in the courts, 'and 200 attorneys.'
'Business was booming, 'and it was transforming an important part of the
capital.' Here's the famous Temple Church, built by the Knights Templar
in the last years of Henry II's reign, and preserved to this day as the
chapel of Inner and Middle Temple... two of the four Inns of Court that
have existed in this area since the Middle Ages. 'The Inns of Court,
'which also include Gray's Inn and Lincoln's Inn, 'have been training
schools for lawyers 'since at least the 14th century.' 'It was here that my
predecessors were lodged, 'and learned legal procedures and
precedents.' 'And down the centuries, 'the Inns have continued to
support and educate barristers.' The ceremony for York Hall this evening
will commence at 1800. 'One of the Inns of Court's most important
responsibilities 'is the formal recognition of qualified barristers. 'In a
ceremony I remember well - the call to the Bar.' In the name of the
Masters of the Bench, I call you to the degree of the utter Bar. 'The Bar
was the barrier which traditionally separated the public 'from the
working area of a courtroom. 'Today, men and a women from a whole
host of countries 'come here to qualify from the very same institutions
'where England's first lawyers trained 'more than six centuries ago.'
English common law has become a model for legal systems all over the
world. The secret of its survival in England is that it was never imposed
upon the nation. Rather, it grew and evolved through many centuries.
The common law runs through our national story like veins through a
body. It has proved both robust and adaptable, and it's had to be. 'As it
moved beyond its medieval origins, 'the common law would face a whole
new set of challenges.' Next time, how the champions of the common law
battled tyranny in the lead-up to the English Civil War... signed the death
warrant of a king... triggered the end of the transatlantic slave trade, and
secured the liberties we still enjoy today.
Strange Case of the Law Episode 2
At midnight on May 11th, 1640, a mob attacked Lambeth Palace,
protesting against the suspension of Parliament by the King. They were
led there by a man beating a drum. He was called John Archer. His is a
name that history should remember. John Archer was arrested for
banging a drum in a war-like manner," which was deemed nothing short
of levying war against the King. Treason. Archer was sent to the Tower of
London, to see if he could be induced to give up the names of what the
authorities regarded as his fellow conspirators. To secure his confession,
he was put to the rack. The sound would have almost been as frightening
as the pain, as the body was torn apart with the rips, the tears, and the
pops. John Archer's torture was as useless as it was barbarous. If he had
anything to confess, he did not reveal it. He was tried and executed
shortly after. The state plucked John Archer off the street, He was far
from being the first man to be legally tortured in England, but he was the
last. No warrant for torture would ever be issued in England again. The
end of torture came about as a result of one of the greatest battles
between arbitrary state power and the law, which came to a head during
the Civil War. In this programme, I am going to tell the story of the
courageous men who used the law to challenge tyranny. I'll walk in the
footsteps of the barrister who risked assassination, and eternal
damnation, to put the King of England on trial for his crimes against the
people. I'll find out why a pillar of the establishment delivered a radical
judgement that rocked the slave trade, triggering its ultimate abolition.
And I'll venture into the 17th-century equivalent of Guantanamo Bay,
where one of England's greatest civil libertarians was banished. These
very different men helped forge the liberties that we enjoy to this day.
One of the most satisfying, and challenging, aspects of my job as a
criminal defence barrister is its variety. In my career, I have defended
everyone from people accused of shoplifting to those on trial for murder.
But some things remain constant. Any trial has to be held in a court open
to the public, before an independent jury, and by a judge who is pledged
to do justice, beholden to no master other than the law." There is one set
of laws that apply to England and Wales, and apply to everyone in those
countries. But in the years leading up to the Civil War, England had a
two-tier legal system. The common law, and a system under the royal
prerogative, which allowed torture, and enabled the King to do as he saw
fit. Its court was held in the now-notorious Star Chamber. Near where I
am standing was the site of the Court of Star Chamber. Today, a by-word
for justice and oppression. But in its inception, and throughout most of
its history, it represented precisely the opposite. Star Chamber came to
the fore in Tudor England... a country in turmoil. Nobles run their
territories like Mafia bosses. Disputes can end in what we'd call
"contract killings". The nobility seem beyond justice. They can intimidate
juries and bribe judges. So the Crown develops a court outside the
normal common law. It has powers that can tame the English Mafia. No
amount of cash could buy this court. Soon, the previously untouchable
nobles found themselves in the dock. It may look like an up-market
country pub, but this was where England's most powerful men clashed.
Justice was dispensed under this ceiling of gold stars, from which the
court gets its name... Star Chamber. It had no jury that could be bribed
or intimidated by the mighty. Instead, errant aristocrats were
interrogated, and judged, by members of the government itself. A bit like
being tried by Kenneth Clarke. The most accomplished lawyer to practise
in Star Chamber was Edward Coke. I went to see a Cambridge historian
who has studied this man, whose influence became second only to the
King's. Coke's been described as one of the most disagreeable people in
English history. Is that a fair assessment of his personality? It's a big
claim, isn't it? But he's certainly up there. I think he must have been
someone that almost everybody found overbearing. Even his fellow
judges. He just never brooked an argument, as far as I can see, with
anybody. He was the state prosecutor for 13 years. He was the chief
prosecutor of the Catholic conspirators, above all, the Gunpowder
Plotters. So he is party to the use of torture? Yes, he is party to the use of
torture. His view would certainly be that torture should only be used
against those who had admitted their guilt, in order to get information
about co-conspirators. But when the King sided with Coke's arch-rival,
Francis Bacon, a tempest was brewing. Bacon steered the King into ever
more frequent clashes with Coke, culminating in his sacking as Chief
Justice. Coke begins consistently to obstruct the King's will, to be
pursuing matters of law which irritate the King. Then he becomes a very
prominent figure in the opposition to Charles I in the 1620s. So he goes
from being a very establishment figure to becoming a very anti-
establishment figure. Everything Coke does is wholehearted. His judicial
career was over. Now, Edward Coke would reinvent himself as champion
of the common law. The regime of King Charles I was starting to be seen
as a tyranny. The King used the Court of Star Chamber to punish those
who opposed his policies, to Coke's horror. This once-honourable court
was being corrupted. Star Chamber, once a court to control lawless
nobles, became a threat to anyone who upset Charles. Military failures
had depleted the King's coffers. In 1627, he demanded that Parliament
impose crippling new taxes to pay for weapons and soldiers. Parliament
refused. Charles resorted to other means. His plan turned out to be
explosive. In effect, he'd let his army invade England. Thousands of
soldiers were forcibly garrisoned in people's homes across the country.
The King's troops could just roll on to your land, uninvited. To add insult
to injury, you were then expected to foot the bill for their food and
lodging. National fury was building, because, as Edward Coke famously
commented, The house of an Englishman is to him as his castle. The King
decided to ask his richer subjects for what he called a "loan". But there
was little hope of repayment, and if you said no, you risked being
summonsed before Star Chamber. Five of Charles' knights were
imprisoned without trial for refusing to pay. They resorted to the courts
to challenge their detention. This wasn't so much a dispute about money
as a direct attempt by the knights to stand up to the King. They were
saying to Charles, Get your tanks off our lawn. The jailers refused to
release the prisoners, because they were there on the King's authority.
The most senior judges were now asked, did England's common law
allow the King to arbitrarily arrest his subjects? Eventually, the judges
buckled. The King could imprison the knights without charge. He WAS
the law. Round one to the King, but the battle was not over yet. If the
judges weren't prepared to stand up to the King, would Parliament? The
bruised opposition regrouped around an unlikely hero... the 76-year-old
veteran of the Star Chamber, Edward Coke. The man who had once
prosecuted traitors was now turning the full might of his legal mind
against the King himself. The session was known as the "one-issue
Parliament", and the liberty of all Englishmen was what was at stake.
Both sides claimed to be defending the status quo, and invoked history in
their aid. The Commons made their stance on Magna Carta, while the
King said he was loyal to what he called, the old laws and customs of the
realm." The King's position was to fall back on his belief that he ruled by
divine right. He could do as he pleased. He tried to block the
parliamentarians by forbidding them to discuss matters of state. Some
MPs were in tears and unable to speak, terrified the King was going to
shut down Parliament. Then, Coke spoke. His fearless oratory united the
House. As one MP said, It was as when one good hound recovers the
scent. The rest come in with a full cry. A baying House of Commons
scented royal blood. Charles wanted money, but Coke would demand a
high price. He would force the King to sign a royal restraining order. In
exchange for money, the King would enshrine in law rights for all
Englishmen. I'm here in the parliamentary archives to see a document
devised and drafted largely by Edward Coke, and whose significance to
our constitutional history is second only, perhaps, to that of Magna Carta
itself. It is the Petition of Right. This document sat somewhere between a
list of grievances and an actual bill of rights. So, here it is, the Petition of
Right itself. Now, it may not look a great deal, it's a piece of vellum with
a lot of rather nicely written words on them, but, of course, its
significance is far more than just the document we have before us. It's
only one page, but it helped change the course of history. It's hardly a
humble petition, but that's how it's phrased. Humbly do the Commons
point out to the King the law of the land, what had always been the civil
liberties, the liberties of the subject, enshrined by parliamentary
statute." And then they go on to the meat of the complaint, that despite
all these enactments in the past, things have gone horribly wrong, and in
particular, diverse of His Majesty's subjects had of late been imprisoned,
and when they were brought before His Majesty's courts to challenge the
conditions of their detention, they were denied justice, and they were
sent back to prison without cause." Edward Coke was clear this would
never happen again, insisting, "that no man hereafter be compelled to
pay taxes without parliamentary authority, or be imprisoned without
cause." Any individual who was imprisoned could demand that their jailer
legally justify their actions. This concept, central to our liberty, is known
as habeas corpus. It was a principle whose power would grow immensely
over subsequent decades. Coke's ideals were even appropriated for the
American constitution, the Petition of Rights' offspring, as it were. This is
one of those special documents that had a life of its own. This is a
document that is not just significant in 17th-century England, this is a
document that is one of the foundation documents of civil liberties. It was
as if Edward Coke had joined Amnesty, the Royal Prosecutor had become
Parliament's champion of liberty. Edward Coke had brought all
Englishmen liberties by tempting Charles with the promise of cash. A
king's ransom? Across England, the agreement of Charles to this
document was welcomed by the ringing of church bells and the lighting
of bonfires. A rare event for a parliamentary measure. But the
celebrations had barely died down before Charles was plotting his next
move. Once he had secured his cash, the King bypassed the Petition of
Right and dissolved Parliament. He would rule alone, enforcing his will
through the court of Star Chamber. The Star Chamber judges resorted to
an alternative form of taxation, by fining the wealthy on frivolous
charges. And Charles, a man who saw opposition everywhere, could also
use Star Chamber, and its savage sentences, to clamp down on religious,
as well as political, dissent. Under this ceiling studded with stars,
disfiguring and degrading punishments were imposed by cruelly
imaginative judges, the creatures of the King. The victims of such
treatment were those bold or rash enough openly to oppose Charles'
arbitrary rule. Some had their noses slit, others, their ears cut off. Public
displays of Royal displeasure. Those reluctant to incriminate themselves,
or others, might be persuaded to change their minds by a trip to the
tower. It was home to the rack. Bridget Clifford, from the Royal
Armouries, revealed the tower's dark secret. For the poor unfortunates
upon which this was used, what would have been the procedure? They
would be brought to be shown the rack first, and if that didn't elicit a
confession, or more information from you, then you would be set upon it.
The ropes would be applied to your ankles and to your wrists, we think.
And then it would be slowly tightened by rotating the drum. There would
have been unpleasant sounds if you were doing this to somebody. I
suspect also the machinery may have been a little theatrical too. The
whole thing is there to increase the sense of terror, so it would have been
a particularly unpleasant experience. One master of the rack was said to
have boasted of racking a prisoner one good foot longer than even God
made him. What allegations or offences would this have been applied to?
Mainly treason. This is for threatening the status quo, or for threatening
the Royal person. Now, what constitutes that threat can be a physical
threat, it can also be the fact that your religion is seen to be standing
against that that the country approves of at the time, depending on who's
on the throne. Protestants in a Catholic world, or Catholics in a
Protestant world. Four centuries ago, the law itself would be put on the
rack. At one end was the King's law, at the other, the common law. Which
system would win, and which would snap? For over a decade,
Parliament's doors were locked, the King ruled alone and supreme.
These dark days remained until a costly religious war with the Scots
drained the royal coffers. Finally, in 1640, Charles was forced to recall
Parliament to get money. Now back in the game, the MPs aimed to
destroy the hated institutions of Charles' rule. Torture warrants were
made illegal, no attempt to revive them has ever been made since. And
victims of Star Chamber, those who had lost money, liberty, or ears,
called on Parliament to rein in the symbol of royal absolutism. But they
didn't just rein it in. On July 5th, 1641, Charles was forced to sign Star
Chamber out of existence. Its inquisitorial powers, its gruesome
punishments were swept away forever. The common law, and its liberties,
had won. Star Chamber was dismantled as a court, and later as a room.
Now all that remains is its name and its famous ceiling. Its stars now
shine down on a reception room in a hotel on the Wirral. But despite the
abolition of Star Chamber, Parliament and Charles were still on a
collision course. In 1642, the crash came. The English Civil War. Though
there were many causes of the war, one was Charles' refusal to accept
that he did not have a divine right to dictate the law of the land. But
enough of his subjects still believed he did. It split the country in two. In
the carnage that followed, over 80,000 soldiers died on the battlefield. By
the end of the war, Parliament had emerged triumphant. The Civil War,
like many of the era's seismic upheavals, was borne out of legal disputes.
The parliamentarians now decided to use the courts to ensure Charles
would never be a problem to anyone again. But what mere subject would
have the bravery to prosecute a divinely anointed king? Criminal
barristers get their cases by being instructed by solicitors. They get sent
one of these, it's called a brief. It's a set of papers, instructions,
predominantly papers relating to the case, all quaintly tied up in pink
ribbon. As one eagerly opens that ribbon, and read the instructions that
you've been given, you discover what sort of case this is. Will it bring you
fame, the respect of your peers, or be one of the darker cases, involving
the defence of a paedophile, a terrorist, or a serial rapist? Barristers
can't pick and choose which case they take on. We call this the cab rank
rule, and no matter how unsavoury the individuals may be in the cab
rank queue, you have to take them on their legal journey. But this system
didn't exist in January 1649. Back then, one brief was emptying legal
London. Barristers fled in droves. The instructions were straightforward
enough... to prepare and prosecute the charge against the King. But
taking on this brief risked more than just public disapproval, it risked
imminent assassination, and even eternal damnation. This brief was
delivered to one of the few barristers brave enough to remain in London.
His name, John Cook. And this John Cook, no relation to Edward, had less
than ten days to prepare his case. At its heart, this was a war crimes'
trial. Charles was being held responsible for the atrocities committed by
his army. Evidence abounded, but John Cook had a problem... in England,
the source of the law is the King. How could the source of the law be
prosecuted by the law? Former war crimes judge Geoffrey Robertson
believes John Cook was the first barrister in history to prosecute tyranny.
I put to him a conundrum of my own. The Civil War is now over, Charles I
has proved to be particularly duplicitous, and they put him on trial. Why
didn't he just have an accident, fall down the stairs, or get accidentally
shot somewhere? You've got to understand these people, these puritans.
They believed that all they did had to be in the sight of God. They
believed that they were only saved by virtue of their ability to justify
everything they did. And so they determined to put him on as fair a trial
as the times would allow. And to do that in a way in which God would
speak towards, in the course of the trial. They had no clear
determination that he'd be executed at the beginning of the trial. It was a
process which, like everything else, would be conducted by God. Now
England, God, and Charles awaited the most important trial in English
history. But had John Cook solved that seemingly impossible legal puzzle?
All cases in England are carried out in the name of the King, Rex versus
the defendant. Could Rex be against Rex? Cook's masterstroke was to
redefine the terms of the argument. The King, he said, was not an
individual, but an office, and the holder of that office had to govern by,
and according to, the laws of the land and not otherwise. Ingenious. But
would John Cook's argument be sustained in court? Charles Stuart would
be tried in the greatest court in the land, Westminster Hall. But such an
important prisoner could not be brought through the crowds. It risked
rescue by his followers, or assassination by his enemies. On January
20th, 1649, a solution was found. The funeral barge was making its slow
way along the Thames, it contained not a corpse, but a king. It was en
route to the court via a river entrance. Charles was being brought in
through the back door. Legend claims the King's journey into these
legally unexplored waters was observed by England's new leader. Oliver
Cromwell stood watching, white as the wall. He turned. My masters, he
is come, he is come, and now we shall be doing that great work that the
nation will be full of. Wooden partitions held back the crowds, or failing
that, armed guards. Up there, 68 judges sat, transfixed. To avoid
assassination, the presiding judge wore a steel-lined, bullet-proof, beaver
skin hat. Thousands of eyes were fixed on the prosecuting barrister, John
Cook, here, centre stage. As Cook addressed the court, the King poked
him in the back with his cane. Had Cook yielded to the King's request to
stop, his legal authority would be gone. Cook boldly continued. The King
struck him harder with the cane. The tip fell off, Cook declined to pick it
up, and the King was forced to kneel to do so. The symbolism was
obvious and ominous... the King knelt before the law, the source of the
law had become subject to the law. The King was read the charge.
Charles paused and asked, I would know by what power I am called
hither?" He told the court, A king cannot be tried by any superior
jurisdiction on Earth." Saddam, Milosevic sound exactly like Charles I. By
what power do you put me on trial?" Undermining the court's authority,
Charles repeatedly declined to plead. A refusal to plead, as John Cook
knew, was tantamount to a full confession. Charles's fate was in the
hands of the judges. I think it was touch and go, and I think that he
might have avoided the death sentence had he not made the mistake by
talking to his guards. And he told his guards that he felt no sorrow at all,
no regrets, for the loss of life in the Civil Wars. One in every ten
Englishmen had been killed in these wars, which had been started by the
King, and he told his guards he didn't feel anything. And that message
got back to Cook, it got back to the King's judges, who realised that this
was a man who had absolutely no regrets about killing Englishmen, and
so that is why, in effect, the judges, on the whole, were turned against
him. Finally, Charles Stuart was condemned to death. BELLS TOLL This
document is unique in our history. The death warrant of a king, issued by
a court. Here are the 59 soldiers, Aldermen, judges, who signed away the
life of a king. Here we have John Bradshaw, he of the bullet-proof hat,
and here, Oliver Cromwell. Charles I was marched through Banqueting
House under a Rubens painting celebrating the divine right of kings. A
painting the King had commissioned. Unlike today, Whitehall in 1649 was
narrow, and this place was chosen for the execution of the King to thwart
any last-ditch attempts by royalist cavalry to rescue him. Below me, and
in front of a large throng of people, King Charles I stepped through a
window, onto a scaffold, to face his fate. In the space of 1,000 years, the
law devolved from being a rough code to settle local disputes in Anglo-
Saxon England, into an independent institution, so powerful that it was
capable of killing the King of England. Charles I and the monarchy had
been swept aside. But in 1649, there was a fear that England had simply
swapped one tyrannical regime for another. In an attempt to impose
order on the chaos unleashed by the Civil War, Oliver Cromwell himself
was stamping down on dissenters, whether religious groups like the
Ranters, or political movements, like the Levellers. Radical groups could
no longer look to Parliament to uphold the law in the cause of liberty.
Individuals would have to deploy the law themselves. And none more so
than the leading leveller John Lilburne. John Lilburne believed that the
time had now come for all the men of England to claim their rights.
Freedom of worship and universal suffrage. These liberties, he believed,
were not bestowed upon them by government or by the law, they were
the birthright of all Englishmen. Lilburne exploited the power of the
printing press to propagate his views and energise his supporters. His
secretly published diatribes were passionate, rousing, and seditious. And
publications such as this were distributed up-and-down the country by a
network of his sympathisers. Freedom of speech was limited in Lilburne's
day. Lilburne's words managed to infuriate every administration under
which he lived. They would repeatedly lock him up to shut him up. But
Lilburne had a crucial legal weapon on his side. One enshrined in the
Petition of Right. There had been many ways by which people had tried
to escape imprisonment. Filing through bars, climbing over walls,
digging tunnels, but none has the simple elegance of using a small piece
of paper to fling open the doors. This is the magic of habeas corpus. John
Lilburn thought this piece of paper could be the key to his freedom.
Here's how habeas corpus works in practice... a document known as a
writ is delivered to the jailer saying, we direct you to have the body,
habeas corpus in Latin, of say, Harry Potter, before this court, along with
the reason for detention. If the jailer cannot satisfy the court that the
reason is lawful, then Harry Potter walks free. Habeas corpus is a
remedy against arbitrary arrest, and unlawful imprisonment. Lilburne
employed habeas corpus more often than anyone in history. The results
were more symbolic than actual. He was able to highlight his
predicament and embarrass the authorities, yet he'd still be sent back to
jail. If anything showed how the law was being subverted, it was this.
The authorities knew they couldn't get away with it forever. In March
1649, Lilburne's latest pamphlet attacking Cromwell's regime got him
arrested. While Lilburne was being held, Parliament created a new law. It
made it treasonable to call the government tyrannical, or unlawful in
print. A mutiny in Oxfordshire brought things to a head. Lilburne's
pamphlets were blamed for goading the troops to revolt. Cromwell put
Lilburne on trial for publishing seditious pamphlets, under this
convenient new treason law. Cromwell left for Ireland, safe in the
knowledge that Lilburne was all but a dead man. The evidence against
Lilburne was very strong. This time, he had been lawfully detained,
charged, and put on trial, and in those circumstances, habeas corpus was
both irrelevant and impotent. Worse still, Lilburne was going to defend
himself. And, as we lawyers like to say, he who represents himself has a
fool for a client. But John Lilburne was no fool. He was perhaps the
greatest amateur advocate ever to set foot in an English court. I met
historian Ted Vallance to find out more about how Lilburne fought for his
life. His courtroom performance is incredible, in terms of the amount of
legal citations that he uses in his speeches. So he really wows the jury as
well with his legal knowledge. Even though he keeps requesting legal
counsel, there's this, kind of, double play here. He says, "I need legal
help" all the time, yet he's quoting verbatim from Coke. And from various
other authorities at the same time. And what he does really nicely, all the
way through the trial, is chip away at the court's standing, he suggests
this isn't really a legitimate court. He does things like refer to the
president of the court, Lord President Bradshaw, just as Mr Bradshaw,
just to pull down those people who are accusing him, take them down a
peg or two. Some extraordinary things happened during the trial, one I
think involved a chamber pot. He keeps asking to have a toilet break, he
keeps saying he's been standing for a long time at the bar, and he needs
to go and relieve himself. And the court is, sort of, fed up with these
filibustering tactics, and say, no, you can't go to the lavatory, we've got to
get on with our proceedings, it's a very important trial. And he says, well,
if you won't let me have a toilet break, then at least let me have a
chamber pot that I can use, and they do actually bring in a chamber pot
for him to actually use within the courtroom. And he does that in front of
the jury? Yes, yes. Lilburne had mounted a defence few barristers could
better today. How would the jury react? Finally, the foreman announced
him not guilty, his life was saved, and the cheers from his supporters
lasted over half an hour. At his trial, Lilburne won important rights... the
right to a vigorous self defence, to challenge seeming unfairness in court
procedures, and to take comfort breaks. Lilburne had woven the law into
a safety net that ensured Parliament couldn't silence him. Now, just as
Charles I had used the Star Chamber, Cromwell needed to find a way of
dealing with Lilburne outside the normal parameters of the legal system.
The next time Lilburne stepped out of line, Cromwell would have
something up his sleeve. Before Lilburne could issue a writ of habeas
corpus, he was shipped across the English Channel, beyond the reach of
the law. On this offshore military outpost, the normal protections of
English law were almost impossible to employ. Jersey was Oliver
Cromwell's Guantanamo Bay. Lilburne's extraordinary rendition took him
from the relative comfort of the tower to here, Mont Orgueil Castle.
Cromwell wasn't prepared to take any more chances with a man like
John Lilburne and despatched him here to Jersey. Isolated on an island,
out of sight and out of mind, he was beyond the effective reach of habeas
corpus. Castle curator Doug Ford gave me a much warmer welcome than
Lilburne received. So, this is Lilburne's cell? This is Lilburne's cell, yes.
It's his bedchamber from the 1640s through to the 1660s. This is where
important prisoners were lodged. In the summer, it's still quite chilly and
I notice the walls look and feel damp. Yes. Yes, we're very exposed up
here at the top of the cliff. So, what's the prospect he would have from up
here? Well, from here, you can see straight over to the east. There's
Normandy. On the horizon there? On the horizon, yes. Some prospect!
Indeed. 'Normandy was not just on the horizon, it was in the language.
'The locals spoke not English, but Norman French. 'It was solitary
confinement by language barrier. 'A verbal island that prevented
Freeborn John 'smuggling legal appeals out.' Lilburne was offered his
freedom if he would stop agitating against the government. But being
Lilburne, he would not back down. A year's imprisonment in the
conditions of this castle, however, if it couldn't destroy his spirit, left him
a largely broken man. The damage to his health proved mortal. John
Lilburne died aged 42. But his legacy continued. Jersey was an island-
sized loophole in the petition of right. All had access to habeas corpus,
except in places such as this. Whilst that might suit the government,
voices of discontent were muttering on the backbenches. Increasingly,
MPs were showing disquiet about this legal sleight of hand. And how the
issue was resolved makes one of the most peculiar parliamentary tales. A
habeas corpus bill was drawn up for prevention of imprisonment beyond
the seas. No-one would be placed in Lilburne's legal limbo again. But
each time the bill looked likely to win, the House of Lords voted against
it. It was hit back and forth. Now it faced yet another Lords defeat. The
opposing sides each appointed a lord as a teller. Lord Norris for the noes
and Lord Grey for the ayes. The story goes that Lord Norris, a man
subject to the vapours, was easily distracted. A particularly fat lord came
by to be counted and Grey said, "Ten!" This rather feeble jest soon
became very serious. Lord Norris failed to see either the joke or that his
opponent had added nine extra votes. The bill went through by a majority
of two. Now no-one could be imprisoned beyond the seas. Nowhere in the
Empire was beyond the reach of habeas corpus. A fact that would later
have huge, rather unforeseen consequences. And all thanks to one... fat...
lord. In 2004, the US Supreme Court ruled that detention in Guantanamo
Bay was illegal because it infringed the Habeas Corpus Act. America still
looks to pre-independence English law for precedent. Back in 17th-
Century England, when Oliver Cromwell died, the regime he founded
would soon collapse. The power vacuum was swiftly filled as the heir of
Charles I was restored to the throne. Having had Cromwell's head placed
on a stake and John Cook, the man who'd prosecuted his father, hung,
drawn and quartered, Charles II resumed the Stuarts' favourite family
pastime... religious persecution. A new law targeted religions outside the
Church of England. It severely restricted all non-conformist worship. The
Conventicle Act banned any religious assembly of more than five non-
Anglicans. Thousands were prosecuted under the act. Catholics,
Presbyterians, Quakers. And those found guilty were subject to
imprisonment or even transportation. But that didn't stop two gutsy
Quakers defying the law. William Mead and William Penn had not just
broken the rule of five. They'd been addressing a crowd of hundreds
when they were arrested. Personally, I should love to have defended
them. It was outrageous legislation. But it would have been an uphill
struggle. In law, they were banged to rights. But although they were
guilty by the letter of the law, many Englishmen felt the law was morally
wrong. And luckily for the defendants, four of them were on the jury.
These four jurymen, led by a merchant called Edward Bushel, bravely
declined to find the defendants guilty of a criminal offence. The furious
judge called Bushel impudent and threatened to put his mark on him. But
Bushel held firm and soon the remainder of the jury followed suit. Their
verdict was not guilty. When the jury failed to bring in the right verdict,
the judge shut them up without meat or drink, fire or tobacco, to
reconsider their decision. Or to starve. The conditions in Newgate Jail
were so bad that one in ten prisoners died there. But habeas corpus was
waiting to strike again. Edward Bushel managed to get a writ heard
before Chief Justice Vaughan. The case had become infamous. And
Westminster Hall was hanging on Vaughan's decision. What happened
next would have a lasting legal impact. I asked the current Lord Chief
Justice, the highest judge in the land, about Vaughan's ruling. He
declared the jury should return verdicts in accordance with their
conscience and that no juror should ever be punished for the verdict he
reached. How significant was the case of Edward Bushel? It was
absolutely crucial. This was a remarkable moment in our history. Chief
Justice Vaughan made it absolutely plain that that was the end of any
possibility of a juryman being punished for his verdict. And it never
happened again. And never has. The jury were finally freed. But only
after spending several weeks in England's most notorious jail. Today,
juries are free to give their verdict without recrimination, no matter how
perverse it appears to a judge. Over the course of the 17th Century, the
liberties of the English had undergone an extraordinary change for the
better. This was thanks not only to men like Edward Bushel and John
Lilburne, but also to the legal instrument at the heart of their stories.
Habeas corpus had served Englishmen well. Could it now deal with an
horrific abuse which the English were inflicting on others? 1771. The
Thames docks. A legal document is raced down to a ship that is about to
set sail with its cargo for Jamaica. The document required the ship's
captain to produce his cargo before the Chief Justice. The document was
a writ of habeas corpus. The cargo, a slave called James Somerset. By
putting Somerset in chains, the ship's captain had become his jailer,
answerable to the law. And as we have seen, habeas corpus gives a
prisoner the power to compel his jailer to justify his imprisonment. A
realisation swept across the slave trade. The very legality of slavery itself
was going to be tested in court. So, who was James Somerset and how
had he come to be here? I asked Arthur Torrington, who has studied the
history of slavery. James Somerset was kidnapped and taken to Virginia.
He was bought by a gentleman by the name of Charles Stewart. Um... a
boy of nine, enslaved, was just a pageboy, was just a helper. But
eventually, about ten or so years after, this Mr Stewart brought him to
London. And that's when all the things began to change. James Somerset
escaped. Frightened and in a strange land, he sought refuge with
members of London's black community. He must have believed that you
can run away and it's all right. But whereas his master felt that this is a
bit of, um... Well, he was ungrateful. That was what Stewart had said.
And therefore, what Stewart did was to get one of his friends, or he paid
somebody to do it, and eventually, they actually got hold and they
kidnapped James Somerset and put him on a ship. Fortunately, while
Somerset was on the run, he had encountered abolitionists. Their leader,
Granville Sharp, was seeking to challenge the legal basis of slavery.
When he heard of Somerset's plight, he knew he had found the perfect
test case. In the case of Granville Sharp, he felt that these are human,
and therefore, human beings cannot be and should not be treated in that
particular way, in which they are enslaved, they are not given human
rights and so on. So Sharp was determined to break that cycle if he
could. At bottom, this was an argument about whether a slave had rights
on British soil. Rule Britannia, the popular anthem of the era, boasted
that Britons never shall be slaves. Now the legal system was being
asked, Can slaves ever be Britons? Did the law regard a slave as
property, like this boat? A writ of habeas corpus in this case would be
meaningless, or would the law see a slave as a human being? If so,
habeas corpus could challenge their transportation out of the realm
without their consent. Ultimately, the judgement in this case would
reverberate on both sides of the Atlantic. The case went to the very top,
to Lord Mansfield. The slave traders could have expected Mansfield to be
their ally. Of Scottish noble birth, he embodied the establishment. From
his imposing home, Kenwood House, to his rulings embracing free trade.
He had been leader of both Houses of Parliament and was the highest
judge in the land. Lord Chief Justice. In this fine library, the erudite Lord
Mansfield studied the law. And there he is in all his glory, robed in
ermine, reading Cicero, with Homer inspiring him, and the pillar of
Solomon behind him. As the case ground on in Westminster Hall, Lord
Mansfield is said to have proclaimed, Let justice be done, though the
heavens fall." Both sides were well represented. The abolitionists'
barristers claimed there was no law legalising slavery in this country,
and so it must be illegal. The slavers' counsel countered by saying that as
contracts for the sale of slaves were recognised in English law, that must
validate slavery in England. The court adjourned for Lord Mansfield to
prepare his judgement. Did the law of Virginia have any standing in
England? Was slavery sanctioned or at least permitted under common
law? He pondered long and hard on this momentous task. Lord Mansfield
brooded over the case. What did the law say? What did his heart say?
What impact would a ruling on the James Somerset case have? Granville
Sharp, the great abolitionist, was anxiously awaiting the ruling. But
having clashed with Mansfield in the past, he didn't come to court to
avoid antagonising the judge. So he did not hear the judgement
delivered, staying instead at his home. The result was sprinted through
the streets to him. In this street, somewhere near that spot, Granville
Sharp answered his door. There in front of him, smiling, exultant, stood
James Somerset, a free man. It was a staggering decision. How had Lord
Mansfield come to rule in a mere slave's favour? Although he may not
have realised it, Sharp had a secret agent at the very heart of this house.
She was the daughter of this man, Captain John Lindsay. Mansfield's
nephew. Her name was Dido Bell, and it's believed her mother was an
African slave. Dido grew up at Kenwood in Lord Mansfield's care. Was
Mansfield's landmark judgement influenced by his fondness for her? In
his judgement, Lord Mansfield said that the state of slavery is of such a
nature so odious that the English common law could never accept it.
Now, whether he meant by this to ignite a spark that would end slavery is
unclear, but that is how his judgement was interpreted both here and
abroad. One single writ of habeas corpus had released not just one man
from bondage, but was to mark the start of freedom for all the 15,000
slaves then in England. Habeas corpus remains part of English law. But it
rarely needs to be used today. In my entire career, I've never had to seek
it on behalf of any of my clients, nor has anybody else I know. We simply
take it for granted that everybody has the right to know the reasons for
their detention, just as they have the right to a fair trial by an
independent jury under the auspices of an impartial judge. Arbitrary
action by the state at any stage in the legal process is something we
hope, like slavery, has been consigned to history. We may regard these
liberties as freeborn rights, to use John Lilburne's words, but we mustn't
forget just how hard won they were. Next time - revolution in the
courtroom. How the criminal trial turned from a one-sided struggle in
the shadow of the noose into the fairest court system on Earth. It's the
story of how barristers took centre stage and of how the law finally
admitted its own fallibility.
Strange Case of the Law Episode 3
In 1825, Newgate jailers escorted John Smith along this ever-
narrowing corridor. He had been convicted at the Old Bailey of
housebreaking. 'He had no barrister to represent him, no witnesses to
call on oath. 'All he could do was to protest his innocence - in vain.' John
Smith finished his walk about here. And this was probably his last view of
daylight. He was hanged for this crime. John Smith was a boy of just
fifteen. The case of John Smith sounds like an awful aberration, a
shockingly disproportionate punishment for a property offence and
inflicted on one so young. Yet this was no miscarriage of justice. The trial
followed the due process of the day, a due process that was far from
equal, but was stacked against the defendant. Life or death could be
decided in minutes. Most defendants had no one to put their case, other
than the judge himself. If this now seems rather surprising to us, it's
because of the remarkable transformation that's taken place in our legal
system over the last three centuries. It's one that went well beyond due
process to enshrine in English court procedure the principle of the
equality of arms, of simple fairness. 'That transformation was shaped by
seismic shifts in English society 'from the Industrial Revolution 'to the
rise of the popular press. 'It's a story that takes place in the shadow of
the noose, 'one that features spies, visionary politicians blazing their way
through the statute books, 'forgery, fraud and murder. 'And the most
dazzling advocates ever to step foot in an English courtroom.' At the
centre of this revolution was my profession. Barristers like William
Garrow pioneered new rules of evidence and their aggressive, passionate
performances made them the star turns of the courtroom drama. If he
were guilty, and I say plainly he is not, must he hang alongside
murderers and cutpurses?! Mr Garrow! You will be in contempt! 'In this
programme, I'll trace how a rather crude and biased legal process' was
remoulded to give us what we have today... the fair trial. At the start of
the 18th century, our liberties and freedoms had been established. The
courts, by comparison, were still in the Dark Ages. Land yourself in the
dock and you found yourself in a medieval nightmare. With no police
force and no forensic science service, the only means of deterring crime
was through exemplary punishment... whipping, transportation and
hanging. And an already severe system was about to get even bloodier.
This is Waltham in Hampshire. 'In 1723, it was a place of terror. 'A gang
rampaged through these forests, poaching, robbing and murdering, 'their
faces blacked up in disguise. 'It was feared these Waltham Blacks, as
they were known, would spread their violence across England.' As a
kneejerk reaction, the Waltham Black Act was rushed into law. Suddenly
all manner of offences were punishable by death. Just being caught in a
park with a blacked-up face could get you hanged, along with damaging
trees and wrecking fish ponds. It was the harshest piece of legislation
that the country had ever seen. Thus began a terrible trend that meant
that by the end of the century more than 200 offences were punishable
by death. Deterrence was all. As Judge Buller told a felon he was
sentencing, "You are to be hanged not for stealing horses but that horses
may not be stolen. 'This system was aptly named the Bloody Code. 'At its
heart was London's Hall of Justice, the Old Bailey. 'In Georgian times,
trials were held in a courtroom exposed to the elements to prevent
typhus 'infecting others. The Old Bailey today may look like 'a palace of
justice, but in the 18th century it truly was a death trap. 'In 1750, long
after the building had been enclosed, 'an outbreak of jail fever
promiscuously killed 60 people, 'including two judges and the Lord
Mayor.' If the physical conditions were vile, the way in which justice was
meted out seems much worse. You are facing the noose. Are you entitled
to a defence barrister? No. Can you or your defence witnesses give
sworn testimony? No. Do juries retire to give careful consideration to
your case? No. And you were lucky if the entire proceedings from start to
verdict and sentence took more than 15 minutes. The idea that the
accused was entitled to an adequate defence had yet to penetrate these
walls. In this era, people felt the innocent should be able to argue their
own cases. Many an accused, when compelled to defend themselves in
this alien environment, with its unfamiliar procedures and terminology,
would have been terrified into incoherence when their lives were
hanging in the balance. If the defendant needed assistance, the judge
was expected to offer it. Judges were not always seen to be the apogee of
impartiality and some could find the court day a little enervating. In
1699, Spencer Cowper, grandfather of the poet William, was on trial for
murder. Towards the end of a lengthy day, an exhausted judge admitted
he was struggling to sum up the case. I am sensible I have omitted many
things," he said, but I am a little faint and cannot repeat any more of the
evidence." Despite this display of judicial lassitude, or perhaps because
of it, the jury found Cowper not guilty. With judges your only defender
and the Bloody Code sanctioning hanging for over 200 crimes, you might
have expected the hangman to be the busiest tradesman in town.
Thankfully, something came between you and the noose. 'The jury.' I'll let
you into a wee secret gained from many years' experience at the criminal
bar. Despite all their tough talking in the pub, most people, when they
find themselves on a jury having to decide the fate of a fellow human, in
many cases have a tendency to go all... soft or tender. Tabloid journalists
may merely reflect the inclination or even aspiration of many of their
readers to string them up themselves, but when they do hold someone's
life in their hand, most people wobble. And this was nothing new. Juries
were considerably less punitive 200 years ago than perhaps you might
think. When faced with a Bloody Code which imposed the death penalty
for innumerable petty offences, juries were inclined to go against their
oath of bringing in a true verdict and either to find people not guilty or,
more often, to reduce the amount of property stolen so that it was no
longer a capital offence. This was known as pious perjury. And let me
give you an example. Here's just one case from the Old Bailey records
and it relates to a Mary Bain of the Parish of St Andrew Holborn. Now
she was indicted for the theft of clothing worth over 50 shillings. That
was a capital offence. She made a frivolous defence upon which the jury
found her guilty to the value of four shillings and ten pence," thus
rendering her no longer liable to execution and so she was merely
branded. Counting on the mercy of either the jury or the judge could
seem a little bit like Russian Roulette, but soon a means arose which
would help even the odds for the defendants and this is still a
cornerstone of English justice today. But its beginning is shrouded, still,
in some little mystery. 'The mystery starts in the Inns of Court, home to
London's barristers. 'These lawyers had been pleading in English courts
since the 13th century, 'but their role had been mainly limited to civil
cases and litigation.' Here at Lincoln's Inn, as at the other Inns of Court,
more and more barristers came to ply their trade. They were bright,
energetic young men and their influence would be profound. 'By the 18th
century, barristers were prosecuting criminal cases on behalf of the
Crown. 'And from the 1730s, some judges were allowing defence
barristers 'to appear on behalf of prisoners facing the death penalty.'
Had the judges realised the influence barristers would come to have on
the court and how they would largely displace the judiciary from their
dominating role in trials, they might well have tried to slam the door
shut. Once barristers had their foot in that door, however, there was no
one who could get them out. Barristers appearing in criminal cases
couldn't fall back on mere rhetoric. They had to master a forensic
questioning technique. Since the 13th century, it was not considered
proper for a barrister, in effect, to appear against the King in felony
cases that were brought by the crown. Thus defence barristers could not
address the jury directly, but had to rely on vigorous cross-examination
and the odd comment dropped in. One barrister stands out. He did more
than any other to change existing practice and to transform the very
nature of the criminal trial. William Garrow. The son of a Scottish
schoolmaster, Garrow was called to the bar in 1783. In later life he would
become an MP, the Attorney General and a Privy Councillor, but his
lasting impact came from the time he spent at the Old Bailey as one of
the most prolific defence advocates of his era. Behind these rather
unprepossessing walls, a legal revolution was taking place. 'Such was
Garrow's legacy, along with the theatricality of his courtroom style, 'it's
not surprising that his story has been turned into a TV drama. 'This is the
set of Garrow's Law. 'The series largely draws on Garrow's actual cases,
which often were truly dramatic.' If he were guilty, which I state plainly
he is not, must he hang alongside murderers and cutpurses... Mr
Garrow! You will be in contempt! Is that a just end for any man?
Gentlemen, you must know that Mr Garrow was playing you like a
harpist. 'I asked the historical consultant for the series how much the TV
Garrow reflected the man 'revealed by the court records.' All we can
base things on are the transcripts, so when you go through them you can
see that Garrow is most definitely breaking the mould in terms of how he
approached the task of persuading the jury about his case. In his style,
he seems to be succinct and to the point and he can create a word
picture followed by a question or a comment or a question dressed up as
a comment. A model modern barrister. In a way, he's the godfather of the
whole modern system of advocacy, as I see it anyway, with this acidic
kind of very American style, you know, approach to advocacy. You are a
man who will testify for a reward, you are a man who will have others
hanged for a reward! I witness from Christian probity! You witness from
greed! My Lord! Mr Garrow, you have said your say. A consummate
performer, Garrow was famed for his aggressive style of cross-
examination. 'Andrew Buchan, who plays Garrow, seems such a natural
fit for the role 'I wondered if there was a lawyer in the family.' My father
used to be a Customs officer at Manchester Airport. And he would be
relentless in just trying to get to the bottom of where exactly they'd come
from, why they didn't have a bag. Just tell the truth. I don't believe a
word. Where is your uncle? What's his name? You don't even know his
name? Just this... "I don't believe a word of it." Like a bullet. And
Garrow's manner of questioning seemed to be very similar to, I cannot
seem to recollect. Well, try. Because this person's about to be hanged." Is
it really quite easy to get into the role of Garrow? It's an actor's dream, I
suppose, because it is theatre. A lot of barristers have a little bit of actor
in them, so they love that arena and the cauldron of the court. Garrow's
brilliant use of theatrics meant the opposition felt obliged to follow suit.
Soon the two sides were battling each other as adversaries. English trials
had taken on a new form, which remains with us today. The adversarial
trial system in which I practise was born in courts such as this. We don't,
alas, have the nuts any more, nor the port, but the wigs and the briefs
tied up in pink ribbon are exactly the same. Garrow may have been a
mould-breaker in the courtroom, but he was also very much in tune with
the mindset of his age. In 18th-century Britain, the prevailing intellectual
climate was one of rigour, even of scepticism. Leading thinkers such as
the Scottish philosopher David Hume emphasised the importance of
direct experience in the acquisition of knowledge. Learned institutions
such as the Royal Society championed and popularised the scientific
method. The instinct of any educated person of Garrow's generation
would be to take nothing for granted, but to question received wisdom
and to test the evidence. 'And this Enlightenment thinking had found its
way into the courtroom. 'Previously, all evidence, even mere hearsay, was
equally admissible, 'but now rules of what could and could not be
considered evidence were introduced. 'Thanks to Garrow, the entire
balance of proof in the courtroom was changing.' Before Garrow, the
focus was on the response of the accused to the charges. Garrow shifted
that focus onto the case presented by the prosecution. The trial was no
longer a test of the defendant, but of the evidence against him. And
linked to this approach is a principle that has become the cornerstone of
ideals of justice across the world, yet can be summed up in one phrase.
Innocent until proven guilty. Just four words, but today a hallowed
concept. The articulation of this key principle, the presumption of
innocence, has been attributed to William Garrow. The fact that it has is
a tribute to his impact on the criminal trial process and on the rights of
the accused. 'Of course, it took more than one man to change England's
entire legal machine. 'The mystery is what the other factors might be.
'How the adversarial system gained traction, surprisingly, is unclear.
'There was no Act of Parliament, no judgment by or decree from the
higher judiciary, 'but legal historian Richard Vogler believes the answer
may lie with broader forces. 'Nothing less than the Industrial Revolution.'
Why did this development take place at this time? I think it is no
coincidence that this development happened in England in the middle of
the 18th century at the same time that we were experiencing these
profound changes from our Industrial Revolution. Moving from a feudal
economy to a market, industrial economy. And I think those changes
affected all facets of life, including the criminal trial. And adversariality
is above all a market-driven system of justice. You pay for what you get in
terms of representation. The Industrial Revolution had brought with it
increasing commercial litigation, disputes over patent rights, mining
rights. Now lawyers in criminal courts took this a stage further and
introduced a bolder concept... that a defendant had rights. By talking
that language when they got into the criminal courts, they revolutionised
the procedure. And instead of the criminal defendant being a passive
object of the procedure, he or she became an active participant who was
rights-bearing, who could actually have a role and be represented. And
this was the birth of a rights culture that has subsequently spread all
over the world. 'The revolutionary idea that defendants had rights 'had
an impact far greater than just in our courts. 'What began in the
courtroom grew into an entire culture. 'William Garrow, as it turns out,
was part of a bigger trend.' I can claim some modest connection with
William Garrow. This is 25 Bedford Row, where I and 60 other barristers
have our chambers. But in the 18th century, this was William Garrow's
house. But I have to admit that despite his very many considerable
achievements, he's not my greatest hero. That honour has to go to his
contemporary, sometime colleague and rival, perhaps the greatest
barrister of them all, Thomas Erskine. And I say that not just because
he's Scottish. Thomas Erskine was the lawyer who truly championed the
new culture of rights. Charismatic, and with a superb analytical mind, he
was in tune with the new currents of political thought of the 18th
century. Whereas Garrow seems to have been driven largely by personal
ambition, Thomas Erskine, throughout his career, consistently deployed
his very considerable talents in the defence of Enlightenment values and
liberty. Erskine accepted the brief to defend Thomas Paine, the most
radical English writer of the age, whose ideas had helped inspire the
American War of Independence and the French Revolution. In 1792,
Paine was accused of seditious libel for his essay The Rights of Man.
Erskine's decision was to cost him his post as Attorney General to the
Prince of Wales. Two years later, in 1794, Erskine would take on his most
important case, one that would both showcase his remarkable skills and
test them to the very limit. At the end of the 18th century, in the wake of
the French Revolution, the rulers of England became more paranoid than
at any time since the reign of James I. The government of William Pitt
severely restricted civil liberties and instituted a series of prosecutions
for treason which threatened to make an "English terror" a reality. The
French Revolution had horrified England's rulers. Would they, as their
French counterparts before them, be dragged to the guillotine? 'Places
like here, Cecil Court in London, 'were hotbeds of radicalism.
'Government spies were watching. 'Mail was searched. 'Dissidents were
intimidated. Paranoia was rife.' One radical group was infiltrated by at
least five government spies. It went by the innocuous name of the
London Corresponding Society. Oh, thank you. In handbills such as this,
the group's leader Thomas Hardy called for reform - votes for all men
and annual parliaments. William Pitt's government, however, saw not
reform but revolution. Printing presses were secretly despatching
pamphlets throughout the country and corresponding societies were
springing up everywhere. The government was shaken. We conceive it
necessary to direct the public eye to the cause of our misfortunes and to
awaken the sleeping reason of our countrymen to the pursuit of the only
remedy which can ever prove effectual. Namely, a thorough reform of
Parliament." The membership of these political associations included
tinkers, tailors, soldiers, but also spies. Consequently, the wealth of
evidence purporting to implicate the corresponding societies in sedition
continued to grow until, in the spring of 1794, William Pitt could unleash
the full force of the law against them. Thomas Hardy and two other
members of the London Corresponding Society were to stand trial for
high treason. If these men were convicted, it would just be the start. The
government had another 800 arrest warrants waiting to be executed.
Their chances of acquittal looked bleak. Then Thomas Erskine agreed to
fight their case. The treason trials which began in October, 1794, had the
nation transfixed. Erskine knew that he wouldn't just be addressing the
court. His words would echo around the entire country. At the heart of
his defence, Erskine put forward a clear statement of Enlightenment
principles. Men may assert the right of every people to choose their
government without seeking to destroy their own." In excoriating style,
Erskine demolished witness after witness for the prosecution. A spy was
called into the witness box. He claimed to be giving his evidence from his
notes, but frequently was looking at the ceiling. Good God Almighty!
thundered Erskine. Recollection mixing itself with notes in a case of high
treason? Oh, excellent evidence! Opening the defence, Erskine spoke for
seven hours. Not surprisingly, this was one of the longest trials of its age.
Finally, on the eighth day, the jury was ready to return its verdict amidst
nationwide anticipation. The jury foreman stood up. Not guilty, he said.
And promptly fainted. It was a very popular verdict. People went wild
with excitement. The horses were taken off Hardy and Erskine's coaches
and they were pulled in triumph through the streets of London by
jubilant crowds. We lawyers are reluctant to recognise excellence in
anyone other than ourselves. An impressive judge may merit a small
portrait in a corridor, a distinguished Lord Chief Justice may warrant a
full-size painting in a hall, but Thomas Erskine has a statue here, centre
stage, in the library of Lincoln's Inn. To be thus set in stone, at the very
heart of legal London, shows that his peers considered and consider him
to be the finest barrister and foremost defender of freedom of his or
perhaps of any age. 'This new fairer trial procedure, used to such effect
by Erskine, 'would flow forth across the world. 'The adversarial trial was
perhaps England's best and most benevolent export.' The adversarial
system was exported even beyond the British Empire and continues to
this day in the United States of America and throughout the
Commonwealth. And it's still growing. In the last two decades, Taiwan
and several Latin American countries have adopted an adversarial
approach. 'Back in the 18th century, the involvement of barristers may
have made criminal trials fairer, 'but those convicted still faced brutal
punishments. 'The Bloody Code was still firmly on the stature books 'and
there was no sign that Parliament was in the mood to roll back on capital
offences. 'Britain's war with Revolutionary France had triggered a series
of runs on the Bank of England, 'draining its gold reserves. 'Fearing it
would run out of gold, 'in 1797 it increased the use of banknotes - a
counterfeiter's dream. 'But forging a banknote was a capital crime. 'The
Bank of England now found itself becoming, in effect, a forgery
policeman, 'enforcing the full severity of the law. Hundreds were
sentenced to the gallows. 'At the British Museum, historian Jack
Mockford explained to me how the satirist George Cruikshank 'witnessed
one such hanging and responded with a typically trenchant protest... 'a
caricaturist's banknote.' It's clearly not a Bank of England note. No, but
what it very cleverly does is mock a lot of features which were
commonplace on Bank of England notes of this period and the past. So
you have the famous image of Britannia, but in this case she's seen
devouring a baby's head and you have various skeletal-like figures on the
note. Here we've got a pound sign, but it's a rope. Yeah, you have the
hangman's noose, which has been cleverly turned into the pound sign.
Here I think we've got what looks like a row of people being hanged. You
do. That's right, exactly. And the signature is not the Governor of the
Bank of England. No, it is Jack Ketch, a slang term for the hangman at
this time. And what sort of impact would this have had? I think it
symbolised the point in the campaign against the use of capital
punishment for forgery that the Bank's role as the authority on policing
the problem and prosecuting individuals was coming to an end.
Cruikshank's note showed that the tide was turning against the use of
the death penalty for forgery. Juries refused to convict forgers. The Bank
of England itself now pressed the Government to relax its draconian
penalties in a bid to secure more successful convictions. Forgery was not
the only law needing reform. The whole system, savage and incoherent,
required overhauling and only Government could do this. The politician
with the courage, the obsessive eye for detail, and the power of
personality to take on this project was Robert Peel. When Robert Peel
became Home Secretary, there were over 100 statutes dealing with
forgery alone. He ruthlessly attacked this legislative mess. Out of this
bonfire of legislation, Peel pulled a piece of legislative magic. 120
statutes were transformed into one, just six pages long. With
consummate skill, Robert Peel did more to reform the criminal justice
system than almost any other Home Secretary. 'Over the course of eight
years, Peel consolidated three quarters of all offences into a few key
Acts. 'The Waltham Black Act with its dozens of hanging crimes all but
disappeared. 'The death penalty was severely restricted. 'Had a Tory
Home Secretary gone soft? 'I put this to Peel's biographer, himself a
former Tory Home Secretary, Douglas Hurd.' Over the previous 100
years, there had been a vast amount of Parliamentary legislation dealing
with crimes, mainly making them capital offences. That was a tendency.
Of those 120 Acts dealing with forgery, I think about half, 60, created
capital offences. Peel was not a humanitarian. He was not a liberal Home
Secretary. It was not his main aim to make a more humane, merciful
system. That was one effect of what he did, but it wasn't actually his
main aim. His main aim was a Tory aim. It was actually to tidy things up,
make them sensible. It wasn't primarily humanitarian. I think he was
quite clearly looking for the right answer and was not to be pushed off
with inadequate answers or solutions that weren't really solutions. He
really was genuinely looking for, working hard for, working day and night
for the right answer for the system. Peel had reformed the law. Now he
searched for the means to enforce it. The Bloody Code's unjust
punishments had failed to stem crime. Could there be a better deterrent?
In August, 2011, rioting swept England and, for a time, the mob ruled.
'Eventually, the police controlled the situation, but imagine the
destruction 'if, as in Robert Peel's day, the police didn't exist. 'Instead of
deploying police and employing water cannon, 'governments relied on
the Riot Act.' The Act held that where 12 or more people gathered
together in riotous assembly and rejected the reading of the Riot Act and
failed to disperse within an hour, then force could be used against them.
Those remaining on the scene would be subject to the most severe
penalty of all... death. A public official, usually a magistrate, would first
of all read these words. Our Sovereign Lord the King chargeth and
commandeth all persons being assembled immediately to disperse
themselves and peaceably to depart to their habitations or to their lawful
business upon the pains contained in the Act for preventing tumults and
riotous assemblies. God save the King! If you heard those words you had
an hour to disperse or face the consequences. In Peel's day, riots were
frequent, but they often ended with deaths on the streets. The
Government's options were limited. You had a number of ad hoc people
like the Bow Street Runners, but basically you relied on the army
because that was the only force that was available. Peel advocated the
creation of a police force. Uncontroversial to us, but at the time a radical
and suspect concept. Why were people opposed to the creation of a
police force? Because one of the themes which runs through English
history in the 18th and 19th century is the fear of a standing army. A
standing army was thought of as something the Stuarts rather believed
in. It was a reinforcement of royal power. And people thought - and this
was very strong when Peel first produced the plan for a Metropolitan
Police... that this was just the government trying to grab hold of the lives
of the people. Peel had long sought to replace the existing and ineffective
system of nightwatchmen and parish constables, but he faced an uphill
struggle in the face of the argument that a professional police force
would be a danger to liberty. Could Robert Peel convince the population
that having a police force did not mean England would become a police
state? In 1829, he did this by persuading the public that the police would
not just control people, they would primarily control crime. I want to
teach people, wrote Peel, that liberty does not consist in having your
house robbed by organised gangs of thieves or leaving the principal
streets of London in the nightly possession of drunken women or
vagabonds. Crucially for English criminal law, the creation of a
professional police force meant they became the deterrent against crime
rather than draconian penalties. The raw cityscapes described by
Charles Dickens saw Peel's reforms in action. Society's predators, the
Fagins and Bill Sykes, faced a more immediate threat than the noose...
the increasing likelihood of being detected. When a Fagin was in the
dock, he would now get a brief. But there was still one shocking
imbalance. 'The defence barrister was fighting with one hand tied behind
his back.' Today no courtroom drama is complete without a defence
advocate vehemently addressing the jury on his client's behalf. It's the
culminating point of the defence. It's the part I enjoy most. My cross-
examination merely provides the grist for that particular mill. Yet until
the first half of the 19th century, except in treason trials, only the
prosecution had that privilege, not the defence. But now all that
changed. Sometimes emotional, often theatrical, the speech by defence
counsel to the jury became a key moment in any trial. And no British
lawyer mastered that moment better than Sir Edward Marshall Hall,
whose career spanned the late-Victorian and Edwardian eras. It's
thought he may have helped more people to escape the noose than any
other barrister. 'Sally Smith QC is writing a new biography of Marshall
Hall 'and has researched his eye-catching tactics.' The truth is juries like
to be entertained to some degree. And Marshall Hall entertained them.
And he was using techniques which nowadays would be regarded as
being inappropriate. Many of them were derived from the stage and from
melodramas. He would put out his arms and emulate the scales of
justice. You have to remember he was a very tall man and so it was very
impressive. You have to be a very great advocate to keep that up without
looking silly. And he would go through the evidence with his arms out
like that and then slowly, slowly tip his arms and tip his arms as he
proved that all the evidence was in favour of... the innocence of his
client. Marshall Hall is believed to have had actual lessons in stagecraft.
If so, they certainly seem to have paid off. He was extraordinarily
successful. He had this magnetic capacity to persuade juries. But in 1907
Marshall Hall took on perhaps his toughest assignment. The Camden
Town murder was one of the most notorious crimes of the Edwardian era.
A tale of a brutal and savage killing and fog-filled London streets that
could have been ripped from the casebook of Sherlock Holmes. An artist
called Robert Wood was accused of murdering a part-time prostitute,
Emily Dimmock. Her body had been found in her Camden Town lodgings
and her throat had been slit from ear to ear. This gruesome case was a
sensation. It inspired a series of paintings by Walter Sickert. 'And it was
covered in great detail by the press, which had found you couldn't beat a
murder trial 'when it came to pulling in the readers.' Marshall Hall's
secretary helpfully, if rather laboriously, collated the press cuttings of his
cases and she did so in several volumes. These provide a considerable
insight into the technique of his cross-examination and the style of his
oratory. 'From the reports of the trial, it's clear that Hall cast serious
doubt on prosecution eye-witnesses 'who had identified Robert Wood.
'But to destroy the prosecution's case, Hall did something that was
almost unheard of. 'He called his own client to the stand.' The moment
had now arrived for the prisoner to go into the witness box. The court
was suddenly on the tiptoe of excitement. Mr Marshall Hall simply said,
'I now put the prisoner in the box.' Wood jumped up in court. The
warders opened the side door of the dock and with alacrity and a
pleasant smile on his face, Wood strode to the witness box." Since 1898,
defendants could give evidence in their own defence, but this was
considered unwise and even foolhardy. The defence disliked it because
they said that nobody should have to defend their position, that it was up
to the prosecution to prove the case and not up to the defendant to give
any explanation. The prosecution didn't like it in capital cases because
there was a kind of, I think understandable, human resistance to having
to cross-examine a man when his life was at stake. Mr Marshall Hall
started most dramatically. 'Did you kill Emily Dimmock?' he asked,
speaking slowly and distinctly. Wood drew himself up quickly. 'It is
ridiculous, ' he said, facing the jury." The expected answer was a simple
no. Robert Wood's manner in the dock was effete and it did not suggest a
man capable of such a grisly crime, a point Marshall Hall was then able
to drive home in his passionate closing address to the jury. Then he burst
out in dramatic fury. 'I say again - I want a verdict of not guilty and
nothing else! 'A verdict of not guilty to kill this charge 'so that none of
the lying witnesses can galvanise it hence into any semblance of life.'"
The press and public eagerly awaited the result. Finally, the jury gave
their verdict. Not guilty. Marshall Hall's gamble had paid off and proved
that getting a client to give evidence in their own defence could be part
of a fair trial. Not that this achieved justice for the unfortunate victim.
The murderer of Emily Dimmock was never found. 'Cases like the
Camden Town murder trial were a circulation boon for the popular press,
'but the papers were beginning to go beyond mere reporting, 'to take a
more active interest in the legal process.' With the rise of a more
investigative and less deferential press, the law itself fell under the
spotlight. Judicial decisions were scrutinised and criticised and
miscarriages of justice once confined to anecdotes told by barristers over
the port became front-page news. 'The new paper on the block, the Daily
Mail, had heard of a shocking miscarriage of justice. 'It was a classic
case of mistaken identity. 'Adolf Beck was identified as a swindler by 12
victims. 'They all swore he was a con artist calling himself Lord Wilton de
Willoughby. 'They had been tricked into giving their jewels to this fake
lord. 'Despite his protestations, Beck was jailed.' Desperate to prove his
innocence, Beck tried to get his case reopened, but all his solicitor could
do was repeatedly to petition the Home Office for redress. The judges
believed justice was fool-proof and hence there was no proper appeals
procedure. Beck's appeal fell on deaf ears. One of the world's most
unlucky men, Beck had a small chink of good fortune. Years earlier, the
Daily Mail's journalist George Sims had listened to Beck recounting his
travels in Peru, journeys that had happened when he was allegedly in
London swindling women. The Daily Mail campaigned in earnest for
Beck's release. You didn't have to be Sherlock Holmes to realise the case
stank, and his creator, Sir Arthur Conan Doyle, joined the fight. Finally,
under pressure, the authorities paroled Beck. He had served five years of
hard labour. The real fraudster, William Meyer, now struck again and was
caught red-handed. Beck's innocence was undeniable. Rarely has a
miscarriage of justice had greater impact. Outrage turned to pressure for
legal reform. Finally, in 1907, Parliament created the Court of Criminal
Appeal. At last, the legal system admitted it was fallible. Far from being a
sign of weakness, however, this new court showed that English law was
strong enough to acknowledge and deal with its mistakes. But no appeal
court can rectify a miscarriage if the victim has been hanged. Once the
law admitted its fallibility, capital punishment itself was on Death Row.
This is the notorious Dead Man's Walk. In days of old, you were marched
from your cell along this corridor to meet your maker. The walls confined
you, the arches became narrower and narrower. There was no going
back on your walk to the gallows. Now even today there's a sinister feel
to this place. It's gloomy, it's oppressive and it's claustrophobic. 'But how
can you execute someone knowing that their conviction may be unsafe?
'Medieval judges looked to God for the final word. 'Later, the law adopted
His infallibility. 'But once the law's imperfections were admitted, its
authority to impose the ultimate sanction 'was thrown into doubt.
'Eventually, in the 1960s, the death penalty was abolished for murder
'and in 1998 for treason. Goodness knows, our courts still make
mistakes, 'but they are no longer fatal errors. 'I've found my voyage
through the story of English law extraordinary and often inspiring. 'Over
this series, we've seen how justice went from trial by ordeal 'to trial by a
jury of your peers, the defining feature of English common law, 'how we
enshrined a culture of rights and documents like Magna Carta and the
Petition of Right, 'which went on to shape liberty across the world, 'and
how we evolved the adversarial system, 'which exemplifies a fair, modern
court procedure. 'But the story is not over yet. 'I believe that the common
law currently faces a serious challenge.' I'm here on the roof of the
Supreme Court, one of the points of the triangle of power in this country.
Over there, Westminster Abbey and the national shrine and the Royal
Chapel. And over here, the Houses of Parliament. The political power of
the church and the crown has evaporated, but the power of the upstarts,
Parliament, is in the ascendancy. Judges, once the creators of the law,
have largely had that role taken from them by Parliament. Did judges
acquiesce because they realise that the common law can't deal with a
rapidly changing world? When some unpleasant novelty arises such as
child pornography on the internet or credit card cloning and society
wants it dealt with, there's no use looking to the common law for
prohibitions or to earlier judgments for legal solutions. As the Victorians
knew only too well, a fast-changing society requires new laws. This is
where Parliament comes in. It enacts the appropriate legislation, it
creates new crimes and it changes the law of evidence, which is all good and some will be repealed before it ever is. Today's criminal justice
and well provided that that legislation is coherent, comprehensible and system needs a 21st-century Robert Peel, someone able to reform and
concise. But since the late 1970s, governments seem to have become rationalise our law, and stem the avalanche of parliamentary
increasingly addicted to enacting new laws. Some of these new laws intervention. But, despite its shortcomings, I remain a firm believer in
were much needed and long overdue. The 1984 Police and Criminal the English legal system. Whenever I put on my court robes, I'm
Evidence Act, for instance, helped to ensure that all suspects were conscious that I am playing a small part in the long drama of this
treated with conspicuous fairness from the moment of arrest, throughout country's law. It's been around for a millennium and a half and for all its
their time in detention. But what was once a light dusting of new imperfections it still ensures justice, rights wrongs, protects society and
legislation first of all became a snowstorm and then an avalanche defends liberty. To my mind, the English legal system is this nation's
threatening to overwhelm the entire legal system. Some may call this greatest gift to the world.
overload. I call it legislative diarrhoea. 'I would argue that some of this
legislation is again a result of press influence, 'but popular pressure
doesn't always make for good law. 'When I met the Lord Chief Justice, he
tried to give me a flavour of just one year's legislation.' Crime
International Co-operation Act has 96 sections and six schedules
containing 124 paragraphs... 227 sections, four schedules, containing 82
paragraphs. The Sexual Offences Act, 143 sections, seven schedules and
338 paragraphs, but the big daddy is the Criminal Justice Act itself - 339
sections and 38 schedules with a total of no less than 1,169 paragraphs.
That's excluding Schedule 37, which has 20 pages of repealed statutes.
So not only a far greater number of statutes, but the statutes themselves
are far, far larger... Infinitely complex. Infinitely complex. And there are
times when you have to struggle to find out what the answer is to a
particular problem. This is the criminal justice system. It's supposed to
be readily understood. It takes judges a great deal of midnight oil to
work out what some of the provisions actually mean and whether they're
in conflict with others. Does this mean that there are an increasing
number of cases coming to the Court of Appeal where it is at least
arguable that the lower courts got it wrong because they misapplied the
law or got confused about the law? Yes. There are appeals about what I
would describe as the technicalities. They're not strictly technicalities
because they are to do with what power the Court has, so in that sense
they're not technical, but in truth what they are is an analysis of what the
legislative provisions may lead us to conclude the law is supposed to be. I
think it's also the case that having enacted, for instance, the Criminal
Justice Act 2003, the Government subsequently had to amend that Act in
some provisions... Oh, yes... because of the untoward consequences it
was leading to. Oh, yes. And some of it has never been brought into force