Ep 1 – p. 1 Ep 2 – p. 14 Ep 3 – p. 27 Strange Case of the Law Episode 1 'October, est!inster "bbe#.' '$'%e co!e to see one of the great set pieces of Eng&ish &aw... 'the cere!on# !aring the start of the new &ega& #ear.' #ear.' (his is the &ega& estab&ish!ent on show. show. )it*a&, tradition, p&ent# of wigs. $t's co&o*rf*&, it's sp&endid. (he danger is that it can !ae the &aw see! far re!o%ed fro! !ost peop&e's &i%es. $n fact, fact, the p*b&ic ha%e been at the centre of the &ega& s#ste! for cent*ries. cent*ries. Sitting in a +*r#, +*r#, it is the# who decide g*i&t or innocence. itho*t precedent in histor#, histor#, Eng&ish &aw ca!e to e!bod# a fairness and e*a&it# bare&# nown e&sewhere. $n this series, $'&& show show how how the the stor stor# # of En Eng& g&an and' d's s &aw &aw is noth nothin ing g &ess &ess than than the the stor stor# # of Eng& En g&an and' d's s peop peop&e &e.. '$'&& '$'&& e-p& e-p&ain ain how how despi despite te bein being g forg forged ed b# ing ings s and and in%aders, 'b# the Ch*rch and po&iticians, Eng&ish &aw has a&wa#s resisted 'beco!ing !ere&# the too& of the powerf*&.' *t this isn't an open and sh*t case. '(he &aw has a&so been g*i&t# of br*ta&it# and e-cess. '$ts !ethods ha%e so!eti!es been !erci&ess. $t has taen pioneering 'and co*rageo*s indi%id*a&s to p*t it bac in its path 'of +*stice and fairness.' (he res*&t, in !# opini opinion on,, e-ce e-ceed eds s an#t an#thin hing g En Eng& g&an and d has has achi achie% e%ed ed in the the arts arts or the the sciences. $n its i!portance, and in its in/*ence, Eng&ish &aw is this co*ntr#'s greatest gift to the wor&d. '0# na!e's arr# otter, and $'! a barrister. '$ didn't co!e to the profession b# a con%entiona& ro*te. '$t was whi&e woring as a prison chap&ain 'that $ beca!e interested in the &aw.' 'ow $ practice in London and $ specia&ise in cri!ina& defence.' Lie a&& !# co&&eag*es, $ wor within a %er# specic s#ste!, the Eng&ish co!!on &aw. $ts princip&es are prac practi tised sed in co*n co*ntr tries ies as far far ae&d ae&d as $ndia $ndia and and "!eri "!erica ca,, b*t b*t it's it's *it *ite e di5erent fro! the s#ste! *sed on the Continent. Or e%en, in !an# respects, in !# nati%e Scot&and. '(he ter! co!!on &aw doesn't +*st !ean so!ething
'practised *nifor!&# across the co*ntr#. '$t denotes a s#ste! which p&aces &a# peop&e 'at the heart of +*stice, in the for! of the +*r#. '" s#ste! where +*dges &arge&# base their r*&ings 'on ear&ier, ear&ier, si!i&ar cases, act*a& practice, 'rat 'rathe herr than than on theo theor# r# or on &egi &egis& s&at atio ion. n. '"nd '"nd it's it's been been that that wa# wa# for for cent cent*r *rie ies.' s.' (his (his !ae !aes s %ene %enera rab& b&e e rit* rit*a& a&s s &ie &ie the the ann* ann*a& a& cere cere!on !on# # in est!inster "bbe# perhaps &ess detached fro! rea&it# than the# !ight &oo. eca*se se%era& of the e# feat*res that characterise the co*rtroo!s $ wor in toda# were in p&ace b# the 14th cent*r#. So how did Eng&and, *n&ie its neighbo*rs, de%e&op s*ch a *ni*e and end*ring s#ste!6 (hat's what $'! setting o*t to e-p&ore in this progra!!e. (he origin of the Eng&ish co!!on &aw. '(he rst thing an# &ega& s#ste! needs is a set of &aws. '"nd $'%e co!e to )ochester in ent 'to trac down the ear&iest8nown Eng&ish &aw code.' 'Estab&ished in the 9th cent*r#, cent*r#, 'ent is tho*ght to ha%e been the rst "ng&o8 Sa-on ingdo!. ')ochester's ancient cathedra& and i!posing cast&e testif# 'to the region region's 's ear&# ear&# predo! predo!ina inance nce.' .' *t )oches )ochester ter boasts boasts #et anothe anotherr treas*re, which for a &aw#er s*ch as !e is e%en !ore signicant. 'Stored in the co*nci& archi%es is a boo of enor!o*s i!portance, 'not +*st for the &aw b*t for the entire Eng&ish8speaing wor&d.' (his is the treas*re $ was te&&ing #o* abo*t. $t's the (e-t*s )o5ensis, or the )ochester boo. "nd it contains a n*!ber of doc*!ents b*t the !ost signicant is the rst, and it's this. " few pages of a te-t dating bac to :;;. $t's not on&# the rst writing in Eng&ish that we ha%e, so it's the beginning of Eng&ish &iterat*re, it's the rst &aw code code that that we ha%e ha%e.. $t's $t's a %er# %er# si!p& si!p&e e &ist &ist of nes nes or co!p co!pen ensa sati tion on for for acci accide dent nts, s, in+* in+*rie ries, s, wr wron ongs gs.. $f hair hair sei<* sei<*re re tae taes s p&ac p&ace, e, 9; sceat sceatta ta as co!pensation.= $f an ear beco!es str*c o5, one is to co!pensate with 12 shi&&ings.= $f one stries o5 a th*!b, 2; shi&&ings.= "nd this is perhaps the !ost sensiti%e one. $f so!eone disab&es a genita& !e!ber, one is to b*# hi! o5 with three person pa#!ents.= '" person pa#!ent was the !onetar# %a&*e ascribed to a !an's &ife.' '$n this instance, the %icti! was co!pensated for the chi&dren 'he wo*&d no &onger be ab&e to sire.' e tend to thin that the co!pensation c*&t*re is so!ething i!ported fro! "!erica. *t here it is, at
'practised *nifor!&# across the co*ntr#. '$t denotes a s#ste! which p&aces &a# peop&e 'at the heart of +*stice, in the for! of the +*r#. '" s#ste! where +*dges &arge&# base their r*&ings 'on ear&ier, ear&ier, si!i&ar cases, act*a& practice, 'rat 'rathe herr than than on theo theor# r# or on &egi &egis& s&at atio ion. n. '"nd '"nd it's it's been been that that wa# wa# for for cent cent*r *rie ies.' s.' (his (his !ae !aes s %ene %enera rab& b&e e rit* rit*a& a&s s &ie &ie the the ann* ann*a& a& cere cere!on !on# # in est!inster "bbe# perhaps &ess detached fro! rea&it# than the# !ight &oo. eca*se se%era& of the e# feat*res that characterise the co*rtroo!s $ wor in toda# were in p&ace b# the 14th cent*r#. So how did Eng&and, *n&ie its neighbo*rs, de%e&op s*ch a *ni*e and end*ring s#ste!6 (hat's what $'! setting o*t to e-p&ore in this progra!!e. (he origin of the Eng&ish co!!on &aw. '(he rst thing an# &ega& s#ste! needs is a set of &aws. '"nd $'%e co!e to )ochester in ent 'to trac down the ear&iest8nown Eng&ish &aw code.' 'Estab&ished in the 9th cent*r#, cent*r#, 'ent is tho*ght to ha%e been the rst "ng&o8 Sa-on ingdo!. ')ochester's ancient cathedra& and i!posing cast&e testif# 'to the region region's 's ear&# ear&# predo! predo!ina inance nce.' .' *t )oches )ochester ter boasts boasts #et anothe anotherr treas*re, which for a &aw#er s*ch as !e is e%en !ore signicant. 'Stored in the co*nci& archi%es is a boo of enor!o*s i!portance, 'not +*st for the &aw b*t for the entire Eng&ish8speaing wor&d.' (his is the treas*re $ was te&&ing #o* abo*t. $t's the (e-t*s )o5ensis, or the )ochester boo. "nd it contains a n*!ber of doc*!ents b*t the !ost signicant is the rst, and it's this. " few pages of a te-t dating bac to :;;. $t's not on&# the rst writing in Eng&ish that we ha%e, so it's the beginning of Eng&ish &iterat*re, it's the rst &aw code code that that we ha%e ha%e.. $t's $t's a %er# %er# si!p& si!p&e e &ist &ist of nes nes or co!p co!pen ensa sati tion on for for acci accide dent nts, s, in+* in+*rie ries, s, wr wron ongs gs.. $f hair hair sei<* sei<*re re tae taes s p&ac p&ace, e, 9; sceat sceatta ta as co!pensation.= $f an ear beco!es str*c o5, one is to co!pensate with 12 shi&&ings.= $f one stries o5 a th*!b, 2; shi&&ings.= "nd this is perhaps the !ost sensiti%e one. $f so!eone disab&es a genita& !e!ber, one is to b*# hi! o5 with three person pa#!ents.= '" person pa#!ent was the !onetar# %a&*e ascribed to a !an's &ife.' '$n this instance, the %icti! was co!pensated for the chi&dren 'he wo*&d no &onger be ab&e to sire.' e tend to thin that the co!pensation c*&t*re is so!ething i!ported fro! "!erica. *t here it is, at
the %er# start of Eng&ish &aw. '(he &aws in the (e-t*s ha%e traditiona&&# been attr attrib ib*t *ted ed 'to 'to the the rst rst En Eng& g&ish ish ing ing to beco beco!e !e a Chri Christi stian an.' .' '(his '(his was was "ethe&berht, who r*&ed ent 'in the &ate :th and ear&# 7th cent*r#.' cent*r#.' 'So how did he t into this ear&# co!pensation c*&t*re6' '$ ased the historian and &ing*ist Caro&e o*gh 'to e-p&ain how the s#ste! wored in practice.' (here are are di5e di5ere rent nt ran rans s wi with thin in "ng& "ng&o8 o8Sa Sa-o -on n societ societ# #. (here (here's 's the the ing ing,, the the aristocrac#, the ordinar# free !an, and the s&a%e. "nd it is the ran of the %icti! that deter!ines the a!o*nt of co!pensation that the# are entit&ed to. So if #o* da!age the ing's toenai&, he gets !ore than if #o* da!age a s&a%e's toenai&6 >on't e%en thin abo*t da!aging the ing's toenai&. ow in ter!s of enforce!ent, do we now if this code was enforced, how it was enfo enforc rced ed6 6 (he (he respo respons nsib ibi&i i&it# t# for enfo enforc rcin ing g &aws &aws was was %er# %er# !*ch !*ch on the the fa!i&ies, the re&ati%es, the %icti!s. Law was enforced b# societ# fro! within rather than b# the ing fro! the top. So #o* da!age !# son's ear and $ co!e to #o* and sa#, e&&, the code sa#s that's three shi&&ings=, and #o* hand o%er the three shi&&ings6 "nd #o*r fa!i&# wo*&d be standing behind #o*, sa#ing ="nd we insist that #o* hand it o%er.= o%er.= "nd $ thin one of the things we ha%e to re!e!ber is that the &aws wo*&d be a starting point for negotiation between the fa!i&ies. So it wo*&dn't necessari&# be 9; shi&&ings that was handed o%er. $t wo*&d be, =Loo, this in+*r# is worth 9; shi&&ings.= e&&, $'%e got a cow here that's worth 1; shi&&ings and a few pigs that are worth si-, so we'&& !ae it *p in that wa# to sett&e the !atter.= '(he c&ear categories and prices of "ethe&berht's code 'are bo*nd to ha%e s*ited his "ng&o8Sa-on s*b+ects, 'whose econo!# centred aro*nd far!ing and &i%es &i%esto toc c rear rearing ing.' .' "t 4;, 4;, fo*r fo*r.. .... 'Sti 'Sti&& &&,, a &aw &aw code code so&e& so&e&# # base based d on cost cost appears !ora&&# rather e!pt#. 'S*re&# h*!an beings can't be treated &ie co!!odities or catt&e6' ?o* !ight acc*se "ethe&berht's code of nowing the price of e%er#thing and the %a&*e of nothing. *t in the conte-t of the ti!e, it had !*ch !erit. (he abi&it# to sett&e a disp*te, to draw a &ine *nder a grie%a grie%ance nce,, was cr*cia cr*cia&& in the ear&# ear&# "ng&o8 "ng&o8SaSa-on on era when when the greate greatest st threat to the stabi&it# of societ# ca!e not fro! e-terna& ene!ies b*t fro!
interna& fe*ds. 'efore the )o#a& reg*&ation of &aw, b&ood fe*ds were the on&# for! 'of +*stice a%ai&ab&e in "ng&o8Sa-on &ands, and the# co*&d &ead 'to esca&ating con/icts that threatened the entire rea&!. '# ens*ring +*stice for the peop&e peop&e,, '"ethe& '"ethe&ber berht ht and his s*cces s*ccessor sors s were were safeg* safeg*ard arding ing their their thrones.' '$f &aws are the essentia& basis of an# &ega& s#ste!, 'the ne-t step is ha%ing instit*tions to ad!inister 'and i!p&e!ent the!. Co*rts. '"ng&o8Sa-on societ# was ordered into areas nown as h*ndreds, 'so8ca&&ed according to one theor# theor# 'beca* 'beca*se se the# the# !a# ha%e ha%e contai contained ned ro*gh& ro*gh&# # 1;; ho!est ho!estead eads. s. '(hese had their own asse!b&ies to dea& with !inor cases. '0ore serio*s disp*tes and cri!es were referred to the shire co*rts, 'forer*nners of o*r co*nt# co*rts.' (his !o*nd goes b# the characterf*& na!e of Sc*tcha!er nob, so!eti!es corr*pted to Scots!an's nob. "n#wa#, in "ng&o8Sa-on ti!es, the shire co*rt of ershire !et here and #o* co*&dn't ha%e !issed it. 'Sited pro!inent&# on the )idgewa#, 'asse!b&ies here wo*&d ha%e been %isib&e for !i&es aro*nd.' 'residing o%er the shire co*rt !ight ha%e been a senior senior c&eri c&eric c 's*ch 's*ch as a bisho bishop, p, espe especi cia&& a&&# # wh when en a disp disp*t *te e in%o& in%o&%e %ed d the the ch*rch, 'or otherwise a representati%e of the ing, 'a g*re nown as a shire ree%e or sheri5. '"nd tria&s wo*&d be reso&%ed '*sing a re!arab&# si!p&e !ethod of proof.' Ear&# tria&s were based on oaths. (o pro%e #o*r innocence, a&& #o* had to do was to swear an oath that #o* weren't g*i&t# and to get peop&e to co!e here to swear to #o*r honest#. $f #o* co*&d r*st&e *p the prescribed &e%e& of s*pport, #o* were o5 the hoo. '@*st how !an# oath he&pers #o* needed 'depended on #o*r socia& stat*s and the nat*re of the the a&&e a&&ege ged d o5enc o5ence. e. 'One 'One 1;th 1;th8c 8cen ent* t*r# r# te-t te-t stip stip*& *&at ates es '3: peop peop&e &e were were re*ired in a case of arson or !*rder.' (o *s, it a&& so*nds %er# odd and open to ab*se. *t this was a societ# s*5*sed with re&igio*s faith. (o &ie on oath was to ris da!nation, and #o*r friends !ight be &ess than een to s*pport #o* if the# considered #o* a &iabi&it# who co*&d co!pro!ise their good standing in the co!!*nit#. So #es, it was si!p&e, b*t that needn't !ean !ean it was ine5ec ine5ecti% ti%e e or *n+*st *n+*st.. '(he '(he "ng&o8 "ng&o8SaSa-ons ons didn't didn't distin disting*i g*ish sh 'between what we now regard as ci%i& and cri!ina& &aw. 'So oaths co*&d be
*sed to reso&%e propert# disp*tes as we&&. 'Of co*rse, if two opposing parties swore contradictor contradictor# # oaths, 'it !eant at &east one of the! was co!!itting co!!itting a !orta& !orta& sin. '" sit*ation sit*ation the a*thorities preferred preferred to a%oid.' a%oid.' (here's (here's a record of an i!portant case being ad+*dicated on this %er# spot in AA;. " wea&th# wo!an na!ed in/ed &a# c&ai! to a co*p&e of estates and the s*it was heard here at shire co*rt *nder the a*spices of two bishops. in/ed's oath8 he&pers inc&*ded inc&*ded s*ch &*!inaries as the "bbot of "bingdon "bingdon and the "bbess of )ead )eadin ing. g. $n the the e%en e%entt the the disp disp*t *te e was was sett sett&e &ed d b# arbi arbitr trat atio ion n and and co!pro!ise, the parties ha%ing been *rged not to resort to oaths. hich show shows s +*st +*st how how seri serio* o*s s s*ch s*ch a step step wo wo*& *&d d ha%e ha%e been been.. '(he '(he s#st s#ste! e! of h*ndred and shire co*rts e-panded across the co*ntr# 'as s*ccessi%e "ng&o8 Sa-on ings increased their territor#.' '# the 1;th cent*r#, Eng&and had a &ega &ega&& infr infras astr tr*c *ct* t*re re '*n! '*n!at atch ched ed in E* E*ro rope pe,, wi with th its its capi capita ta&& here here in inchester.' inchester.' "s the si
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inscription. "the&stan )e- (ot rit. ing of a&& ritain. $t's a tin# ob+ect, b*t it e!bodies ro#a& a*thorit#. "nd if #o* were ca*ght !aing a co*nterfeit, #o* were in a who&e &ot of tro*b&e. "the&stan's code sa#s $f the !onier be g*i&t#, &et the hand be str*c o5 that wro*ght the o5ence and set *p *pon the !one# s!ith#. ai&ed to the 0int. '"ng&o8Sa-on &aw had beco!e !*ch harsher 'beca*se, in an atte!pt to increase its e5ecti%eness, 'ings had started to tae o%er the ad!inistration of +*stice. '"n# serio*s cri!e was now dee!ed an o5ence against the Crown, 'a breach of the ing's peace,
'and wo*&d be p*nished with appropriate se%erit#.' '(here was now, in e5ect, a tacit contract with the peop&e. '# acting as the g*arantor of +*stice, 'the ing co*&d c&ai! nes and forfeit*res fro! the o5ender. '$n ret*rn, the in+*red part# was gi%en the satisfaction 'of seeing the wrong8doer !ai!ed or e-ec*ted.' 'So!e of the best ph#sica& e%idence for how +*stice operated 'in &ater "ng&o8Sa-on Eng&and 'has been fo*nd on the o*tsirts of inchester. '(he archaeo&ogist "ndrew )e#no&ds too !e to arestoc, 'c&ose to the o&d )o!an road.' hat was fo*nd here that !aes it so specia&6 So!e archaeo&ogica& e-ca%ation *nco%ered the re!ains of 1: indi%id*a&s b*ried in a series of gra%es. (he !odern na!e arestoc is deri%ed fro! the o&d Eng&ish sha5od stocan, which &itera&&# !eans heads on staes. $t basica&&# te&&s *s that it's an "ng&o8Sa-on +*dicia& e-ec*tion ce!eter#. So #o* can i!agine here in the "ng&o8Sa-on period a tra%e&&er !o%ing a&ong the road behind *s, we're at a partic*&ar&# pro!inent p&ace in the &andscape here. ?o* can see this rising gro*nd. " %er# pro!inent p&ace, a series of po&es with heads on stics. " %er# dra!atic sight for tra%e&&ers. So it's !aing a state!ent as we&&6 $t's sending a %er# c&ear !essage of power and a*thorit#. hen #o* &oo at the "ng&o8Sa-ons' continenta& neighbo*rs, e%en tho*gh the# ha%e %er# high&# de%e&oped &ega& c*&t*re, the# don't see! to ha%e an#where near the ind of approach to *sing the &andscape in a %er# precise wa# in ter!s of where cri!ina&s and o*tcasts were b*ried. So what was happening in "ng&o8Sa-on Eng&and was *ni*e6 $t was indeed, arr#, #es. '"s a &aw#er, $ p*t great e!phasis on the *a&it# of the e%idence. '(he re!ains reco%ered fro! the arestoc site 'are now ept in storage b# inchester !*se*!s. '"ndrew showed !e one e-a!p&e.' ow this is astonishing&# we&&8preser%ed for so!ebod# who has been in the gro*nd 1,;;; #ears. (o &a#!an's e#es, there's nothing here to indicate an#thing other than the sad death of a #o*ng person. $t was a %er# di5erent pict*re when the bod# was act*a&&# taen o*t of the gro*nd beca*se rather than the hands being to either side, as the# are here, when the bod# was e-ca%ated, the# were fo*nd crossed o%er each other *nderneath or behind
the bac. "nd that's a c&ear indication, rea&&#, that #o*'%e got fo*& p&a# or so!ething that's not *ite *s*a& going on there. *t the greatest indication that this is not a nor!a& b*ria& is the fact that the head, which #o* can see here at the correct anato!ica& position, was act*a&&# fo*nd b# the side of the &eg. So how was decapitation done6 e&&, a&!ost certain&# with a sword, probab&# with the hands tied behind the bac. $f #o* tae a &oo at this bone here where the b&ade of the sword ca*ght the *nderside of the +aw when the person was e-ec*ted. "nd that wo*&d be one b&ow, wo*&d it6 (hat wo*&d ha%e been one b&ow. '$n the absence of a po&ice force, the threat of death or !*ti&ation 'was a c&ear wa# of pre%enting cri!e b*t in &ater "ng&o8Sa-on ti!es 'it wasn't +*st p*nish!ent that was a deterrent. 'E%en before #o* were fo*nd g*i&t#, the tria& itse&f co*&d be an ordea&. 'Litera&&#.' '$n co!!on with !*ch of E*rope, 'the &ater "ng&o8Sa-ons 'adopted an additiona& !ethod of deter!ining proof. 'One which drew on the power of the e&e!ents... 'of water, and of re... 'and which in%ited od hi!se&f to inter%ene in the tria&.' (his was the @*dici*! >ei, the +*dg!ent of od, tria& b# ordea&. $f #o* were s*spected of a cri!e, #o* were s*b+ected to a rit*a&ised b*t painf*& and dangero*s test. od wo*&d co!e to the aid of the innocent, b*t for the g*i&t#, there wo*&d be no s*ch co!fort. (he ordea& was neither tort*re nor p*nish!ent... it was a !ode of proof. On&# if #o* fai&ed were #o* p*nished. 'eca*se of their re&igio*s e&e!ent, 'ordea&s were s*per%ised b# the c&erg#. '(wo !ain inds of ordea& were e!p&o#ed in Eng&and. '(he rst in%o&%ed carr#ing a piece of red8hot iron in #o*r bare hand.' efore the ordea&, the priest ca&&ed *pon od to b&ess the hot iron, so that it wo*&d be a p&easing coo&ness to those who carr# it with +*stice and fortit*de, b*t a b*rning re to the wiced. (he acc*sed had to wa& a few paces ho&ding the iron. (he hand was then bandaged and after three da#s was inspected to see if it were hea&ing. '$f the wo*nd were c&ean, that was proof of #o*r innocence, 'b*t if it had started to fester, #o* were dee!ed g*i&t#.' '(he second ind of ordea& was !ore dangero*s. '?o* were bo*nd and &owered into a bod# of sanctied water. '"nd #o*r g*i&t was deter!ined b# whether #o* /oated or
san.' ow #o* !ight ass*!e that sining !eant #o* were g*i&t#. "fter a&&, #o* were !*ch !ore &ie&# to drown. *t the be&ief was that the water was so p*re as to repe& sin. Sining indicated innocence. D&oating was proof of g*i&t. 'Ordea&s &ie these !a# so*nd barbaric 'b*t the# were carried o*t in Christian E*rope for cent*ries. '$ ased &ega& historian @ohn *dson what factors deter!ined 'whether #o* were sent for ordea& in the rst p&ace.' (he# see! to ha%e been often proposed as a wa# of sett&ing cases that #o* co*&dn't sett&e in other wa#s. Dor e-a!p&e, if #o* don't ha%e an# fact*a& proof, no !ars on the person who is acc*sed, no e%idence that the# are ho&ding sto&en goods, no b&ood on their hands. (hen there's a chance that no one wi&& now who co!!itted the o5ence, and then the &ie&ihood is that the# wo*&d ha%e to go to tria& b# ordea&. (he n*!ber of peop&e who act*a&&# *ndergo the ordea&, ha%ing been threatened with it, !a# we&& be !*ch s!a&&er. $t see!s to be a wa# of tr#ing to scare peop&e either into confessing or %er# often into sett&ing. (his was the +*dg!ent of od, so how often did od ac*it in s*ch circ*!stances6 e ha%e *antitati%e e%idence. e'%e got registers fro! the 13th cent*r# fro! *ngar#, which gi%e *s n*!bers of peop&e going to ordea& and we nd that !ore than 9; of peop&e get o5. h# !ight the ac*itta& rate ha%e been so high6 $t !*st be ph#sio&ogica& in so!e wa#. eop&e ha%e done st*dies of throwing peop&e into swi!!ing poo&s and seeing how !an# of the! nat*ra&&# /oat and how !an# of the! nat*ra&&# sin. "nd, of co*rse, carr#ing a hot iron sho*&d ca*terise #o*r hand. hat con%icts #o*, it see!s, in Eng&and, is not whether #o*'re b*rnt or not... e%er#one wo*&d be b*rnt 8 it's whether #o*r hand is c&ean or fo*&. as it t*rned p*s8# or not6 hat rea&&# !atters to #o* is whether #o* are bo*nd *p thereafter with good oint!ent and c&ean bandages. hi&e o5icia&&# od was
deter!ining the o*tco!e, it see!s that h*!an
inter%ention was *ite possib&e at a&& stages of the ordea&. "nd nobod# had greater contro& o%er the process than the c&erg#. ow often the# !ight ha%e gi%en the "&!ight# he&ping hand in decå g*i&t innocence we'&& ne%er now, b*t it's c&ear that the who&e ordea& s#ste! ens*red for the Ch*rch a
centra& ro&e in the dispensing of +*stice. '(his raised an i!portant *estion 8 who was in charge of the &aw6 '(he Ch*rch or the ing6 '$t wo*&d beco!e a thorn# po&itica& iss*e 'b*t not for the "ng&o8Sa-on ings. '(heir ro&e was abo*t to co!e to a s*dden end.' One night in Septe!ber 1;::, >*e i&&ia! of or!and# &anded with his ar!# on the so*th coast. $t is said, here, at e%ense# a#. (he or!an in%aders *ic&# e-erted an iron grip o%er the entire co*ntr#. hich sho*&d ha%e been bad news for the &aw of the "ng&o8Sa-ons, now a %an*ished race. E-cept it wasn't. 'i&&ia! grasped an i!portant princip&e for an# r*&er of Eng&and. '$t's a&wa#s better to go with rather than against 'the grain of the &aw. 'i&&ia! had po&itica& and practica& reasons for this. 'e had in%aded Eng&and 'beca*se he be&ie%ed he had the right to the throne. '$f he wanted to be seen as the tr*e heir of "ng&o8Sa-on Eng&and, 'd*!ping or e%en da!aging its &ega& s#ste! 'wo*&d ha%e been co*nter8prod*cti%e. 'esides, the h*ndred and shire co*rt s#ste! was high&# organised 'and e5icient b# continenta& standards.' (he Eng&ish, it appears, were rather better at r*nning the co*ntr# than the# were at defending it. 'owe%er, one e# inno%ation introd*ced b# the or!ans 'was their fa%o*red !ethod of ordea&.' '$n tria& b# co!bat, od wo*&d grand %ictor# to the righteo*s. '(his was seen b# the wea&th# as a !ore dignied !eans 'of reso&%ing ci%i& disp*tes than hot iron or water. '$t co*&d a&so be *sed in cri!ina& cases.' (his is the sword #o*'%e +*st been ghting with6 (hat's right, arr#. e ha%e here a co*p&e of e-a!p&es of swords of the ear&# !edie%a& period, &ooing a bit &ie this. So if the person was engaging in a +*dicia& co!bat, is of this sort of sword that that person wo*&d *se, depending on their stat*s6 res*!ab&# this cost *ite a &ot of !one# at the ti!e. (he e*i%a&ent price wo*&d be that of a 0ercedes en< or a )o&&s8 )o#ce toda#. hat was the p*rpose of the co!bat6 as it to i&& #o*r opponent or +*st b&*dgeon the! into s*b!ission6 e&&, for a ci%i& case, which wo*&d be abo*t &arge a!o*nts of !one# or &and, #o* wo*&d probab&# tr# to b&*dgeon the! into s*b!ission and b# the ti!e one opponent is on the gro*nd and ca&&s o*t =$ #ie&d=, it is probab&# e*i%a&ent to an o*t8of8co*rt
sett&e!ent in a &arge ci%i& case. 0# LordF 'Cri!ina& cases were an a&together &ess dignied a5air, 'often in%o&%ing the ind of ri58ra5 'who co*&dn't a5ord a decent b&ade.' (his wooden stic wo*&d ha%e been a far !ore &ie&# weapon in tria& b# co!bat in a cri!ina& case and, in so !an# words, #o* tr# to hit #o*r opponent where it h*rts. ead, sho*&der, ar!s, nees, feet, and a&& the !a&e p&aces. o*&d #o* &ie to tr#6 $ wo*&d go &ie that, or &ie that, boin6 ?es. "nd what abo*t that6 $ thin so. (here's no reason to be&ie%e that this wo*&dn't ha%e been sharpened to a %er# nast# point, and it !a# e%en ha%e had nai&s in it. '"&tho*gh co!bat was a !eans of estab&ishing proof, not a pena&t#, 's*ch a %io&ent proced*re so!eti!es saw the &ines beco!e b&*rred.' hen #o* beat the opponent to the gro*nd, #o* !ight as we&& carr# on and i&& the!, beca*se afterwards the#'&& be taen awa# and e-ec*ted an#wa#, either for the cri!e the# were initia&&# acc*sed of or if is the other part# that gets beaten to the gro*nd, for ha%ing co!!itted !a+or acts of per+*r#. 'hat !ight happen if #o* &ost and s*r%i%ed 'is to&d in one of the few acco*nts we ha%e of 'an Eng&ish +*dicia& d*e&.' " certain (ho!as of E&derse&d near &o*cester was defeated in co!bat b# a !an he'd been acc*sed of wo*nding. )ather than ha%ing hi! hanged, the +*dges, being !ercif*&, ordered that he !ere&# be castrated and b&inded. (he %ictor and his fa!i&# set abo*t this tas with a degree of re&ish, throwing his e#es on the gro*nd and *sing his testic&es as footba&&s, the &oca& &ads icing the! p&a#f*&&# at the gir&s. or!an r*&e was far fro! being a disaster for Eng&ish &aw. $t a&&owed the peop&e to p*rs*e their "ng&o8Sa-on &ega& traditions in the conte-t of strong and stab&e go%ern!ent. "t &east, that was the case for a&!ost three8*arters of a cent*r#. (hen, in 1139, Stephen *s*rped the throne. Ci%i& war ens*ed and the co*ntr# fe&& apart. 'Dor near&# two decades, fro! 1139 to 1194, 'Eng&and s*5ered what has been ca&&ed both '(he "narch#' 'and the 1A8?ear inter.' '(he res*&t was a breadown in &aw and order, 'a !#riad of *nreso&%ed disp*tes, a dep&etion of ro#a& co5ers 'and the co&&apse of the ing's a*thorit#.' (he !an who had to sort o*t this !ess was Stephen's co*sin, enr# $$, who ca!e to the throne in 1194 aged +*st 21.
(he !ain instr*!ent he *sed was the &aw. (o s*ch an e-tent that so!e historians ha%e ca&&ed hi! nothing &ess than the father of the Eng&ish co!!on &aw. 'enr# rea&ised that it wasn't s*5icient +*st to iss*e &aws. '(he tric was to ens*re their co!!on, 'consistent and e5ecti%e i!p&e!entation.' 'So in 11::, enr# estab&ished a s#ste! of ro%ing )o#a& @*stices. '(hese hand8piced o5icia&s represented a new &e%e& 'of inter%ention b# the Crown in Eng&ish &aw. '(he @*stices were to tra%e& the co*ntr#, '!aing s*re that the &aw was being enforced b# the shire co*rts 'and c&ai!ing a&& the nes that were d*e to the ing.' (he @*stices weren't !ere f*nctionaries. enr# was p*&&ing o*t his big g*ns. (he rst pair to set o5 inc&*ded one of his chief !inisters and the Ear& of Esse-. (he# !anaged to get as far as Car&is&e when the Ear& rather incon%enient&# fe&& i&& and died. efore his de!ise, in the space of +*st a few !onths, the#'d !anaged to shae down ha&f the shires of Eng&and. '(he @*stices were ab&e to ascertain how we&& &oca& sheri5s were doing 'in prosec*ting o5enders. '"nd how !*ch !one# was owed in nes to the ing. 'ere, in Linco&nshire, for e-a!p&e, the# recorded !ore than 1;; cases.' (here's Si!on Dit
representati%es of &oca& co!!*nities who had to report *nder oath a&& the cri!es co!!itted in their area and to na!e those the# dee!ed responsib&e. So not +*ries in the !odern sense, b*t a e# prec*rsor. '$ncreasing&#, the co*nt# sheri5s were side&ined 'and the +*ries were re*ired to present their reports 'to the @*stices the!se&%es. '(hese @*stices were beco!ing a powerf*& bod#, 'both in the shires and in the capita&. '(here was now a centra& co*rt r!&# estab&ished at est!inster. '$t wasn't a S*perior Co*rt or Co*rt of "ppea&, 'b*t it was the base fro! which the ro%ing @*stices set o*t 'and to which the# ret*rned. '"nd it sat in reg*&ar sessions of its own. '$n e5ect, it was enr#'s &ega& head*arters.' hat was starting to e!erge here was a bod# of +*dges, as we wo*&d recognise the! now, ser%ing both at est!inster and in the shire circ*its and b*i&ding *p a poo& of now&edge and e-pertise. $t's eas# to i!agine the! getting together between sessions or +*st o%er a !ea&, swapping stories, debating the ner points of &ega& practice, and *sing this shared e-perience to shape their s*bse*ent r*&ings. '"cco*nts of cases began to be written down, 'a&&owing the! to be cons*&ted, 'and the rst boos abo*t Eng&ish &aw started to appear.' (he @*stices were estab&ishing a !ethod that re!ains a dening characteristic of the Eng&ish &ega& s#ste!. (he# were !aing +*dg!ents based on precedent. Co!!on &aw wasn't +*st abo*t consistenc# across the rea&!, it was a&so abo*t being consistent with pre%io*s decisions. '(he est!inster Co*rt !ain&# dea&t with ci%i& &itigation. '(he# wo*&d hear #o*r s*it !ore *ic&# than a shire co*rt... 'for a fee. '0aing !one# see!s to ha%e been an i!portant aspect of enr#'s refor!s, 'a point $ raised with &ega& historian a*& rand.' ow !*ch is re%en*e8raising as opposed to !aing the co*ntr# safer an *nder&ining priorit# for enr#6 C&ear&# he was not *naware of the fact that @*stices bro*ght in !one#. $t wo*&d be wrong to s*ppose that he didn't ha%e that in !ind at a&& in what he did, b*t there were rather !ore protab&e things for a ing to do than ens*ring +*stice. e did not charge signicant&# &arge a!o*nts for access to ro#a& co*rts. So he ens*red that ro#a& +*stice was a5ordab&e6 e ens*red that ro#a& +*stice was a5ordab&e to
the nor!a& !an in the street. So he had %er# high idea&s as to his ro&e, $ s*ppose6 e, as it were, reorientates the Eng&ish !onarch#. e retoo&s it as... an instit*tion deser%ing the s*pport of the ing's s*b+ects beca*se it pro%ides +*stice for the!. '"nd that +*stice was !eant to be consistent across societ#. '(he co!!on &aw didn't discri!inate, at &east in theor#, 'between the rich and poor.' *t one i!portant gro*p re!ained safe&# be#ond the grasp of the co!!on &aw. enr#'s atte!pts to dea& with that prob&e! wo*&d co!e to dene his reign and reach a head here in Canterb*r#. '(hat prob&e! was the c&erg#. '(he# en+o#ed their own &ega& s#ste!, Canon Law. '$f #o* were in ho&# orders, '#o* were s*b+ect so&e&# to the +*risdiction of the Ch*rch. '(he Crown co*&dn't to*ch #o*. 'o !atter how serio*s the cri!e, the c&eric wo*&d !ere&# be ordered 'b# his bishop to p*rge his sin, *s*a&&# thro*gh penance, 'whereas a &a#!an !ight be !*ti&ated or hanged. '(hat is, *n&ess the# c&ai!ed =benet of c&erg#.= ' enet of c&erg# pro%ided perhaps the biggest &oopho&e in Eng&ish &ega& histor#. On the /i!siest of gro*nds, #o* co*&d c&ai! to be a c&eric, th*s re!o%ing #o*r sanctied so*& fro! the grasp of the sec*&ar a*thorities. E%ent*a&&#, the benet co*&d be c&ai!ed !ere&# b# reciting the rst %erse of sa&! 91. a%e !erc# *pon !e, O od, according to th# &o%ing indness. "ccording *nto the !*&tit*de of th# tender !ercies, b&ot o*t !# transgressions.= '(he inabi&it# of ro#a& +*stice to prosec*te cri!ino*s c&erics 'represented perhaps the !ost serio*s cha&&enge 'to enr#'s a*thorit#. 'So when he appointed his c&ose friend (ho!as ecet 'as "rchbishop of Canterb*r#, 'he did so on the e-pectation that *nder ecet's &eadership, 'the Ch*rch wo*&d confor! and cooperate.' '*t ecet went nati%e. 'enr# was O( a!*sed.' E%en when woring f*&&8ti!e as a priest, $ had &itt&e s#!path# for ecet and his stance. (o defend the independence and rights of the Ch*rch fro! sec*&ar intr*sion is one thing, to protect &iterate !*rderers, robbers and rapists fro! the f*&& rigo*rs of the &aw is *ite another. (he c&erica& chi&d ab*se scanda&s of recent #ears are ecet's &egac#. $ can we&& *nderstand how enr# $$ got !ore than a &itt&e
e-asperated at the pig8headed obd*rac# of his archbishop, and how he de!onstrated that fr*stration in an inte!perate o*tb*rst to the e5ect of, ho wi&& rid !e of this t*rb*&ent priest6= 'hat happened ne-t 'is one of the !ost fa!o*s stories of 0edie%a& Eng&and.' On the night of 2Ath >ece!ber, 117;, the stor# goes ecet was at e%ening pra#er here in Canterb*r# Cathedra&, when he was confronted b# fo*r nights &o#a& to the ing. (he# str*c hi! down with repeated b&ows fro! their swords, and the# were so ferocio*s that the# s&iced o5 the crown of his head, so that, in the words of an e#ewitness, (he b&ood, white with the brain, and the brain, no &ess red fro! the b&ood, d#ed the /oor of the cathedra&.= '$t's *n&ie&# enr# act*a&&# ordered ecet's !*rder. 'is archbishop's de!ise *nder!ined a&& that the ing wanted, 'as p*b&ic opinion ra&&ied ro*nd the Ch*rch. 'ecet beca!e a !art#r, and a repentant enr# 'fe&t he co*&d no &onger to*ch the iss*e of cri!ino*s c&erics.' '"&tho*gh the Ch*rch !a# ha%e re!ained o58&i!its, 'enr# $$ had gi%en the rest of his ingdo! a &asting &egac#.' enr# and his ad%isers didn't rein%ent &aw in Eng&and, b*t the# certain&# ga%e it order, cohesion and a degree of *nifor!it# *n!atched "?E)E in E*rope. ow Eng&and didn't +*st ha%e &aws, it had a &ega& s#ste!. " ing born in Drance had &aid the stab&e fo*ndation *pon which toda#'s Eng&ish &aw co*&d be b*i&t. 'enr# $$ *nderstood ro#a& a*thorit# was best !aintained in Eng&and, 'not thro*gh the arbitrar# e-ercise of power, 'b*t b# being seen as the g*arantor of +*stice. '*t perhaps e%en he *nderesti!ated +*st how *ic&# the Eng&ish 'wo*&d co!e to see +*stice not as the ing's gift, b*t as (E$) right. '$t was a &esson that his son @ohn wo*&d &earn 'in a &and!ar !o!ent in Eng&ish histor#.' 'On 19th @*ne, 1219, 'ing @ohn rode fro! indsor Cast&e to !eet his barons, 'who had pitched their ca!p b# the water !eadows at )*nn#!ede.' On that @*ne !orning, near&# B;; #ears ago, these !eadows wo*&d ha%e been &&ed with tho*sands of peop&e... so&diers, nights, barons, bishops, the ing hi!se&f... a&& awaiting so!ething *nprecedented in Eng&ish histor#. (he ing was abo*t to p*t his sea& on a doc*!ent that had been forced *pon hi! b# his s*b+ects. '@ohn's disastro*s
Drench wars, his repeated de!ands for !one#, 'and his ab*se of ro#a& co*rts to &e%# nes, 'had a&ienated !an# of Eng&and's powerf*& barons. '(he# had rebe&&ed, forcing the ing to negotiate. '(he res*&t was written down 'in the !ost fa!o*s &ega& doc*!ent in histor#... 'the reat Charter, 0agna Carta. '$ts :3 c&a*ses co%er a wide range of ro#a& concessions, 'b*t 0agna Carta was !ore than +*st a &ong &ist 'of &ega& and econo!ic de!ands. '$t was a gro*ndbreaing recognition that the Eng&ish peop&e had rights.' 0*ch of 0agna Carta !a# strie the !odern reader as i!penetrab&e, obsc*re, and so!eti!es e%en tri%ia&. *t b*ried a!ong the c&a*ses dea&ing with sh weirs and !eas*res of a&e are two of end*ring signicance. o free !an sha&& be sei
hard at batt&e in strategic )ochester.' @ohn persona&&# directed the siege of )ochester Cast&e. $ts e%ent*a& s*rrender in o%e!ber was one of the few g&orio*s !o!ents for @ohn in his tro*b&ed reign. ot that he had &ong to sa%o*r it. >#senter# i&&ed hi! the fo&&owing #ear. *t 0agna Carta &i%ed on. '0agna Carta had been disse!inated far too wide&# across the co*ntr# 'to be ignored or forgotten. 'Of what are be&ie%ed to be so!e 4; copies origina&&# distrib*ted, 'fo*r sti&& s*r%i%e, inc&*ding the one sent to Linco&n.' "t rst g&ance, it's not !*ch to &oo at. *t it's had perhaps !ore in/*ence... in Eng&ish and wor&d histor# than an# other doc*!ent. 'On two occasions of the greatest historica& !o!ent, '0agna Carta wo*&d beco!e a c&arion ca&& against o%erbearing go%ern!ent. 'receding the Eng&ish Ci%i& ar, it was cited b# ar&ia!entarians 'contesting the a*thorit# of Char&es $. '$n the 1Bth cent*r#, 'it inspired the fathers of the "!erican )e%o&*tion, 'and pro%ided the basis for the Hnited States Constit*tion.' (his is probab&# the !ost i!portant e-tant doc*!ent in o*r histor#. '1219, the #ear 0agna Carta was signed, 'was perhaps the !ost !o!ento*s in Eng&ish &ega& histor#. '$t was the #ear the &aw o*tgrew not on&# the ing, 'b*t a&so, the other great power in the &and.' (he Ch*rch !a# ha%e en+o#ed its own separate &ega& s#ste!, canon &aw, b*t as we'%e seen, it a&so !aintained a strong footho&d in the co!!on &aw, beca*se on&# a c&eric co*&d preside o%er tria&s b# ordea&. $n 1219, that a&& changed for reasons that had nothing to do with e%ents in Eng&and. 'A;; !i&es awa# in $ta&#, 'ope $nnocent $$$ banned priests 'fro! b&essing ordea&s b# water and re 'on the basis that od's +*dg!ent 'wasn't at the bec and ca&& of pres*!pt*o*s !orta&s. 'Do&&owing the withdrawa& of the Ch*rch fro! the &ega& process, 'Eng&and had to decide whether to fo&&ow !*ch of E*rope 'and adopt !ethods of proof dating bac to )o!an &aw.' Eng&ish &aw was at a crossroads. $t co*&d ha%e fo&&owed the ro*te fa%o*red on the Continent, where the a*thorities wo*&d tr# to e-tract confessions b# tort*re if necessar# 8 the in*isitoria& s#ste!. $nstead, Eng&and contin*ed a&ong her own e-ceptiona& path towards tria& b# +*r#. 'O%er the cent*ries, the ro&e of =the !an in the street= 'had beco!e steadi&# entrenched in
Eng&ish &ega& practice. 'Dro! the peop&e who !ight bac *p #o*r oath in "ng&o8Sa-on ti!es, 'to enr# $$'s +*ries of present!ent who indicted &oca& cri!ina&s.' '(hese +*ries were cheap. (he# tapped into &oca& now&edge, 'and it was both &ogica& and co!!on sense 'that the# sho*&d be adapted to rep&ace ordea&s in tria&s.' ow it was no &onger the "&!ight#, b*t a rather &ess e-otic trib*na& that wo*&d deter!ine the o*tco!e. (he +*dge wo*&d as the !e!bers of the +*r#, when decå whether the acc*sed were g*i&t# or not, to gi%e a tr*thf*& answer. $n the "ng&o8Drench of the ti!e 8 a%er8de. O*r =%erdict=. '(he rst nown Eng&ish +*r# tria& too p&ace in 122;. '" wo!an conde!ned for !*rder, ca&&ed "&ice, 'acc*sed %e others of cri!ina&it#. '(he# s*b!itted to the +*dg!ent of their neighbo*rs. '$n the phrase of the ti!e, ' =*tting the!se&%es for good and i&& *pon a %erdict.= '(hese neighbo*rs decided that one was &awf*&, 'b*t that fo*r were thie%es. '"nd the# were sent to the noose. '# the &ate 13th cent*r#, '+*ries were a fa!i&iar part of Eng&ish &aw. 'Hn&ie !odern ones, the# didn't weigh e%idence, 'b*t ca!e to a decision based on their own now&edge or be&ief. 'Dor ordinar# peop&e to ha%e s*ch power in a societ# 'that was in other respects f*&& of ine*a&ities was re%o&*tionar#.' ?o*r peers had been gi%en an a*thorit# that had pre%io*s&# been the preser%e of od. ?o*r g*i&t was now decided in p*b&ic b# !e!bers OD the p*b&ic, independent of the state. (he +*r# 8 the instit*tion that !ost denes Eng&ish +*stice... tr*&# begins here. '# the end of the 13th cent*r#, we can see a n*!ber 'of the e&e!ents of Eng&ish &aw that re!ain with *s toda#. '" *nied set of &aws across the co*ntr#, the +*r#, 'the str*ct*re of &oca& and centra& co*rts, 'a bod# of +*dges who share and e-change 'their now&edge and e-perience, 'and one other i!portant part of o*r &ega& s#ste! has beg*n to e!erge.' 0a+or ci%i& s*its often ended *p being heard at est!inster, irrespecti%e of where the#'d originated. *t s*ppose #o* &i%e in a distant shire. (ra%e&&ing to London to p&ead #o*r own case wi&& certain&# re*ire &ots of ti!e and !one#, and dea&ing with an e-pert @*stice !a# be we&& be#ond #o*r capacit#. So wh# not t*rn to a new ind of practitioner who's co!e on the scene6 So!eone &ie !e 8 a
professiona& &aw#er. '$n fact, then, as now, 'there were two branches of the &ega& profession.' '?o* wo*&d appoint an attorne# 'to act as #o*r agent and !anage #o*r case. '(he word co!es fro! the O&d Drench atorne 8 =to appoint=. '*t the act*a& p&eading of #o*r case in co*rt 'wo*&d be done b# a sergeant. '"ttorne#s and sergeants were the e*i%a&ent of toda#'s 'so&icitors and barristers.' '"nd b# the &ater 13th cent*r#, 'there were aro*nd 3; sergeants practising in the co*rts, 'and 2;; attorne#s.' '*siness was boo!ing, 'and it was transfor!ing an i!portant part of the capita&.' ere's the fa!o*s (e!p&e Ch*rch, b*i&t b# the nights (e!p&ar in the &ast #ears of enr# $$'s reign, and preser%ed to this da# as the chape& of $nner and 0idd&e (e!p&e... two of the fo*r $nns of Co*rt that ha%e e-isted in this area since the 0idd&e "ges. '(he $nns of Co*rt, 'which a&so inc&*de ra#'s $nn and Linco&n's $nn, 'ha%e been training schoo&s for &aw#ers 'since at &east the 14th cent*r#.' '$t was here that !# predecessors were &odged, 'and &earned &ega& proced*res and precedents.' '"nd down the cent*ries, 'the $nns ha%e contin*ed to s*pport and ed*cate barristers.' (he cere!on# for ?or a&& this e%ening wi&& co!!ence at 1B;;. 'One of the $nns of Co*rt's !ost i!portant responsibi&ities 'is the for!a& recognition of *a&ied barristers. '$n a cere!on# $ re!e!ber we&& 8 the ca&& to the ar.' $n the na!e of the 0asters of the ench, $ ca&& #o* to the degree of the *tter ar. '(he ar was the barrier which traditiona&&# separated the p*b&ic 'fro! the woring area of a co*rtroo!. '(oda#, !en and a wo!en fro! a who&e host of co*ntries 'co!e here to *a&if# fro! the %er# sa!e instit*tions 'where Eng&and's rst &aw#ers trained '!ore than si- cent*ries ago.' Eng&ish co!!on &aw has beco!e a !ode& for &ega& s#ste!s a&& o%er the wor&d. (he secret of its s*r%i%a& in Eng&and is that it was ne%er i!posed *pon the nation. )ather, it grew and e%o&%ed thro*gh !an# cent*ries. (he co!!on &aw r*ns thro*gh o*r nationa& stor# &ie %eins thro*gh a bod#. $t has pro%ed both rob*st and adaptab&e, and it's had to be. '"s it !o%ed be#ond its !edie%a& origins, 'the co!!on &aw wo*&d face a who&e new set of cha&&enges.' e-t ti!e, how the cha!pions of the co!!on &aw batt&ed t#rann# in the &ead8*p to the Eng&ish
Ci%i& ar... signed the death warrant of a ing... triggered the end of the transat&antic s&a%e trade, and sec*red the &iberties we sti&& en+o# toda#. Strange Case of the Law Episode 2 "t !idnight on 0a# 11th, 1:4;, a !ob attaced La!beth a&ace, protesting against the s*spension of ar&ia!ent b# the ing. (he# were &ed there b# a !an beating a dr*!. e was ca&&ed @ohn "rcher. is is a na!e that histor# sho*&d re!e!ber. @ohn "rcher was arrested for banging a dr*! in a war8&ie !anner,= which was dee!ed nothing short of &e%#ing war against the ing. (reason. "rcher was sent to the (ower of London, to see if he co*&d be ind*ced to gi%e *p the na!es of what the a*thorities regarded as his fe&&ow conspirators. (o sec*re his confession, he was p*t to the rac. (he so*nd wo*&d ha%e a&!ost been as frightening as the pain, as the bod# was torn apart with the rips, the tears, and the pops. @ohn "rcher's tort*re was as *se&ess as it was barbaro*s. $f he had an#thing to confess, he did not re%ea& it. e was tried and e-ec*ted short&# after. (he state p&*ced @ohn "rcher o5 the street, e was far fro! being the rst !an to be &ega&&# tort*red in Eng&and, b*t he was the &ast. o warrant for tort*re wo*&d e%er be iss*ed in Eng&and again. (he end of tort*re ca!e abo*t as a res*&t of one of the greatest batt&es between arbitrar# state power and the &aw, which ca!e to a head d*ring the Ci%i& ar. $n this progra!!e, $ a! going to te&& the stor# of the co*rageo*s !en who *sed the &aw to cha&&enge t#rann#. $'&& wa& in the footsteps of the barrister who rised assassination, and eterna& da!nation, to p*t the ing of Eng&and on tria& for his cri!es against the peop&e. $'&& nd o*t wh# a pi&&ar of the estab&ish!ent de&i%ered a radica& +*dge!ent that roced the s&a%e trade, triggering its *&ti!ate abo&ition. "nd $'&& %ent*re into the 17th8cent*r# e*i%a&ent of *antana!o a#, where one of Eng&and's greatest ci%i& &ibertarians was banished. (hese %er# di5erent !en he&ped forge the &iberties that we en+o# to this da#. One of the !ost satisf#ing, and cha&&enging, aspects of !# +ob as a cri!ina& defence barrister is its %ariet#. $n !# career, $ ha%e defended e%er#one fro! peop&e
acc*sed of shop&ifting to those on tria& for !*rder. *t so!e things re!ain constant. "n# tria& has to be he&d in a co*rt open to the p*b&ic, before an independent +*r#, and b# a +*dge who is p&edged to do +*stice, beho&den to no !aster other than the &aw.= (here is one set of &aws that app&# to Eng&and and a&es, and app&# to e%er#one in those co*ntries. *t in the #ears &eading *p to the Ci%i& ar, Eng&and had a two8tier &ega& s#ste!. (he co!!on &aw, and a s#ste! *nder the ro#a& prerogati%e, which a&&owed tort*re, and enab&ed the ing to do as he saw t. $ts co*rt was he&d in the now8notorio*s Star Cha!ber. ear where $ a! standing was the site of the Co*rt of Star Cha!ber. (oda#, a b#8word for +*stice and oppression. *t in its inception, and thro*gho*t !ost of its histor#, it represented precise&# the opposite. Star Cha!ber ca!e to the fore in (*dor Eng&and... a co*ntr# in t*r!oi&. ob&es r*n their territories &ie 0aa bosses. >isp*tes can end in what we'd ca&& =contract i&&ings=. (he nobi&it# see! be#ond +*stice. (he# can inti!idate +*ries and bribe +*dges. So the Crown de%e&ops a co*rt o*tside the nor!a& co!!on &aw. $t has powers that can ta!e the Eng&ish 0aa. o a!o*nt of cash co*&d b*# this co*rt. Soon, the pre%io*s&# *nto*chab&e nob&es fo*nd the!se&%es in the doc. $t !a# &oo &ie an *p8 !aret co*ntr# p*b, b*t this was where Eng&and's !ost powerf*& !en c&ashed. @*stice was dispensed *nder this cei&ing of go&d stars, fro! which the co*rt gets its na!e... Star Cha!ber. $t had no +*r# that co*&d be bribed or inti!idated b# the !ight#. $nstead, errant aristocrats were interrogated, and +*dged, b# !e!bers of the go%ern!ent itse&f. " bit &ie being tried b# enneth C&are. (he !ost acco!p&ished &aw#er to practise in Star Cha!ber was Edward Coe. $ went to see a Ca!bridge historian who has st*died this !an, whose in/*ence beca!e second on&# to the ing's. Coe's been described as one of the !ost disagreeab&e peop&e in Eng&ish histor#. $s that a fair assess!ent of his persona&it#6 $t's a big c&ai!, isn't it6 *t he's certain&# *p there. $ thin he !*st ha%e been so!eone that a&!ost e%er#bod# fo*nd o%erbearing. E%en his fe&&ow +*dges. e +*st ne%er brooed an arg*!ent, as far as $ can see, with an#bod#. e was the state prosec*tor
for 13 #ears. e was the chief prosec*tor of the Catho&ic conspirators, abo%e a&&, the *npowder &otters. So he is part# to the *se of tort*re6 ?es, he is part# to the *se of tort*re. is %iew wo*&d certain&# be that tort*re sho*&d on&# be *sed against those who had ad!itted their g*i&t, in order to get infor!ation abo*t co8conspirators. *t when the ing sided with Coe's arch8ri%a&, Drancis acon, a te!pest was brewing. acon steered the ing into e%er !ore fre*ent c&ashes with Coe, c*&!inating in his sacing as Chief @*stice. Coe begins consistent&# to obstr*ct the ing's wi&&, to be p*rs*ing !atters of &aw which irritate the ing. (hen he beco!es a %er# pro!inent g*re in the opposition to Char&es $ in the 1:2;s. So he goes fro! being a %er#
estab&ish!ent g*re
to
beco!ing a %er#
anti8
estab&ish!ent g*re. E%er#thing Coe does is who&ehearted. is +*dicia& career was o%er. ow, Edward Coe wo*&d rein%ent hi!se&f as cha!pion of the co!!on &aw. (he regi!e of ing Char&es $ was starting to be seen as a t#rann#. (he ing *sed the Co*rt of Star Cha!ber to p*nish those who opposed his po&icies, to Coe's horror. (his once8hono*rab&e co*rt was being corr*pted. Star Cha!ber, once a co*rt to contro& &aw&ess nob&es, beca!e a threat to an#one who *pset Char&es. 0i&itar# fai&*res had dep&eted the ing's co5ers. $n 1:27, he de!anded that ar&ia!ent i!pose cripp&ing new ta-es to pa# for weapons and so&diers. ar&ia!ent ref*sed. Char&es resorted to other !eans. is p&an t*rned o*t to be e-p&osi%e. $n e5ect, he'd &et his ar!# in%ade Eng&and. (ho*sands of so&diers were forcib&# garrisoned in peop&e's ho!es across the co*ntr#. (he ing's troops co*&d +*st ro&& on to #o*r &and, *nin%ited. (o add ins*&t to in+*r#, #o* were then e-pected to foot the bi&& for their food and &odging. ationa& f*r# was b*i&ding, beca*se, as Edward Coe fa!o*s&# co!!ented, (he ho*se of an Eng&ish!an is to hi! as his cast&e. (he ing decided to as his richer s*b+ects for what he ca&&ed a =&oan=. *t there was &itt&e hope of repa#!ent, and if #o* said no, #o* rised being s*!!onsed before Star Cha!ber. Di%e of Char&es' nights were i!prisoned witho*t tria& for ref*sing to pa#. (he# resorted to the co*rts to cha&&enge their detention. (his wasn't so !*ch a
disp*te abo*t !one# as a direct atte!pt b# the nights to stand *p to the ing. (he# were sa#ing to Char&es, et #o*r tans o5 o*r &awn. (he +ai&ers ref*sed to re&ease the prisoners, beca*se the# were there on the ing's a*thorit#. (he !ost senior +*dges were now ased, did Eng&and's co!!on &aw a&&ow the ing to arbitrari&# arrest his s*b+ects6 E%ent*a&&#, the +*dges b*c&ed. (he ing co*&d i!prison the nights witho*t charge. e "S the &aw. )o*nd one to the ing, b*t the batt&e was not o%er #et. $f the +*dges weren't prepared to stand *p to the ing, wo*&d ar&ia!ent6 (he br*ised opposition regro*ped aro*nd an *n&ie&# hero... the 7:8#ear8o&d %eteran of the Star Cha!ber, Edward Coe. (he !an who had once prosec*ted traitors was now t*rning the f*&& !ight of his &ega& !ind against the ing hi!se&f. (he session was nown as the =one8iss*e ar&ia!ent=, and the &ibert# of a&& Eng&ish!en was what was at stae. oth sides c&ai!ed to be defending the stat*s *o, and in%oed histor# in their aid. (he Co!!ons !ade their stance on 0agna Carta, whi&e the ing said he was &o#a& to what he ca&&ed, the o&d &aws and c*sto!s of the rea&!.= (he ing's position was to fa&& bac on his be&ief that he r*&ed b# di%ine right. e co*&d do as he p&eased. e tried to b&oc the par&ia!entarians b# forbidding the! to disc*ss !atters of state. So!e 0s were in tears and *nab&e to spea, terried the ing was going to sh*t down ar&ia!ent. (hen, Coe spoe. is fear&ess orator# *nited the o*se. "s one 0 said, $t was as when one good ho*nd reco%ers the scent. (he rest co!e in with a f*&& cr#. " ba#ing o*se of Co!!ons scented ro#a& b&ood. Char&es wanted !one#, b*t Coe wo*&d de!and a high price. e wo*&d force the ing to sign a ro#a& restraining order. $n e-change for !one#, the ing wo*&d enshrine in &aw rights for a&& Eng&ish!en. $'! here in the par&ia!entar# archi%es to see a doc*!ent de%ised and drafted &arge&# b# Edward Coe, and whose signicance to o*r constit*tiona& histor# is second on&#, perhaps, to that of 0agna Carta itse&f. $t is the etition of )ight. (his doc*!ent sat so!ewhere between a &ist of grie%ances and an act*a& bi&& of rights. So, here it is, the etition of )ight itse&f. ow, it !a# not &oo a great dea&, it's a piece of %e&&*! with a &ot of rather nice&#
written words on the!, b*t, of co*rse, its signicance is far !ore than +*st the doc*!ent we ha%e before *s. $t's on&# one page, b*t it he&ped change the co*rse of histor#. $t's hard&# a h*!b&e petition, b*t that's how it's phrased. *!b&# do the Co!!ons point o*t to the ing the &aw of the &and, what had a&wa#s been the ci%i& &iberties, the &iberties of the s*b+ect, enshrined b# par&ia!entar# stat*te.= "nd then the# go on to the !eat of the co!p&aint, that despite a&& these enact!ents in the past, things ha%e gone horrib&# wrong, and in partic*&ar, di%erse of is 0a+est#'s s*b+ects had of &ate been i!prisoned, and when the# were bro*ght before is 0a+est#'s co*rts to cha&&enge the conditions of their detention, the# were denied +*stice, and the# were sent bac to prison witho*t ca*se.= Edward Coe was c&ear this wo*&d ne%er happen again, insisting, =that no !an hereafter be co!pe&&ed to pa# ta-es witho*t par&ia!entar# a*thorit#, or be i!prisoned witho*t ca*se.= "n# indi%id*a& who was i!prisoned co*&d de!and that their +ai&er &ega&&# +*stif# their actions. (his concept, centra& to o*r &ibert#, is nown as habeas corp*s. $t was a princip&e whose power wo*&d grow i!!ense&# o%er s*bse*ent decades. Coe's idea&s were e%en appropriated for the "!erican constit*tion, the etition of )ights' o5spring, as it were. (his is one of those specia& doc*!ents that had a &ife of its own. (his is a doc*!ent that is not +*st signicant in 17th8cent*r# Eng&and, this is a doc*!ent that is one of the fo*ndation doc*!ents of ci%i& &iberties. $t was as if Edward Coe had +oined "!nest#, the )o#a& rosec*tor had beco!e ar&ia!ent's cha!pion of &ibert#. Edward Coe had bro*ght a&& Eng&ish!en &iberties b# te!pting Char&es with the pro!ise of cash. " ing's ranso!6 "cross Eng&and, the agree!ent of Char&es to this doc*!ent was we&co!ed b# the ringing of ch*rch be&&s and the &ighting of bonres. " rare e%ent for a par&ia!entar# !eas*re. *t the ce&ebrations had bare&# died down before Char&es was p&otting his ne-t !o%e. Once he had sec*red his cash, the ing b#passed the etition of )ight and disso&%ed ar&ia!ent. e wo*&d r*&e a&one, enforcing his wi&& thro*gh the co*rt of Star Cha!ber. (he Star Cha!ber +*dges resorted to an a&ternati%e for! of ta-ation, b# ning the
wea&th# on fri%o&o*s charges. "nd Char&es, a !an who saw opposition e%er#where, co*&d a&so *se Star Cha!ber, and its sa%age sentences, to c&a!p down on re&igio*s, as we&& as po&itica&, dissent. Hnder this cei&ing st*dded with stars, disg*ring and degrading p*nish!ents were i!posed b# cr*e&&# i!aginati%e +*dges, the creat*res of the ing. (he %icti!s of s*ch treat!ent were those bo&d or rash eno*gh open&# to oppose Char&es' arbitrar# r*&e. So!e had their noses s&it, others, their ears c*t o5. *b&ic disp&a#s of )o#a& disp&eas*re. (hose re&*ctant to incri!inate the!se&%es, or others, !ight be pers*aded to change their !inds b# a trip to the tower. $t was ho!e to the rac. ridget C&i5ord, fro! the )o#a& "r!o*ries, re%ea&ed the tower's dar secret. Dor the poor *nfort*nates *pon which this was *sed, what wo*&d ha%e been the proced*re6 (he# wo*&d be bro*ght to be shown the rac rst, and if that didn't e&icit a confession, or !ore infor!ation fro! #o*, then #o* wo*&d be set *pon it. (he ropes wo*&d be app&ied to #o*r an&es and to #o*r wrists, we thin. "nd then it wo*&d be s&ow&# tightened b# rotating the dr*!. (here wo*&d ha%e been *np&easant so*nds if #o* were doing this to so!ebod#. $ s*spect a&so the !achiner# !a# ha%e been a &itt&e theatrica& too. (he who&e thing is there to increase the sense of terror, so it wo*&d ha%e been a partic*&ar&# *np&easant e-perience. One !aster of the rac was said to ha%e boasted of racing a prisoner one good foot &onger than e%en od !ade hi!. hat a&&egations or o5ences wo*&d this ha%e been app&ied to6 0ain&# treason. (his is for threatening the stat*s *o, or for threatening the )o#a& person. ow, what constit*tes that threat can be a ph#sica& threat, it can a&so be the fact that #o*r re&igion is seen to be standing against that that the co*ntr# appro%es of at the ti!e, depending on who's on the throne. rotestants in a Catho&ic wor&d, or Catho&ics in a rotestant wor&d. Do*r cent*ries ago, the &aw itse&f wo*&d be p*t on the rac. "t one end was the ing's &aw, at the other, the co!!on &aw. hich s#ste! wo*&d win, and which wo*&d snap6 Dor o%er a decade, ar&ia!ent's doors were &oced, the ing r*&ed a&one and s*pre!e. (hese dar da#s re!ained *nti& a cost&# re&igio*s war with the Scots
drained the ro#a& co5ers. Dina&&#, in 1:4;, Char&es was forced to reca&& ar&ia!ent to get !one#. ow bac in the ga!e, the 0s ai!ed to destro# the hated instit*tions of Char&es' r*&e. (ort*re warrants were !ade i&&ega&, no atte!pt to re%i%e the! has e%er been !ade since. "nd %icti!s of Star Cha!ber, those who had &ost !one#, &ibert#, or ears, ca&&ed on ar&ia!ent to rein in the s#!bo& of ro#a& abso&*tis!. *t the# didn't +*st rein it in. On @*&# 9th, 1:41, Char&es was forced to sign Star Cha!ber o*t of e-istence. $ts in*isitoria& powers, its gr*eso!e p*nish!ents were swept awa# fore%er. (he co!!on &aw, and its &iberties, had won. Star Cha!ber was dis!ant&ed as a co*rt, and &ater as a roo!. ow a&& that re!ains is its na!e and its fa!o*s cei&ing. $ts stars now shine down on a reception roo! in a hote& on the irra&. *t despite the abo&ition of Star Cha!ber, ar&ia!ent and Char&es were sti&& on a co&&ision co*rse. $n 1:42, the crash ca!e. (he Eng&ish Ci%i& ar. (ho*gh there were !an# ca*ses of the war, one was Char&es' ref*sa& to accept that he did not ha%e a di%ine right to dictate the &aw of the &and. *t eno*gh of his s*b+ects sti&& be&ie%ed he did. $t sp&it the co*ntr# in two. $n the carnage that fo&&owed, o%er B;,;;; so&diers died on the batt&ee&d. # the end of the war, ar&ia!ent had e!erged tri*!phant. (he Ci%i& ar, &ie !an# of the era's seis!ic *phea%a&s, was borne o*t of &ega& disp*tes. (he par&ia!entarians now decided to *se the co*rts to ens*re Char&es wo*&d ne%er be a prob&e! to an#one again. *t what !ere s*b+ect wo*&d ha%e the bra%er# to prosec*te a di%ine&# anointed ing6 Cri!ina& barristers get their cases b# being instr*cted b# so&icitors. (he# get sent one of these, it's ca&&ed a brief. $t's a set of papers, instr*ctions, predo!inant&# papers re&ating to the case, a&& *aint&# tied *p in pin ribbon. "s one eager&# opens that ribbon, and read the instr*ctions that #o*'%e been gi%en, #o* disco%er what sort of case this is. i&& it bring #o* fa!e, the respect of #o*r peers, or be one of the darer cases, in%o&%ing the defence of a paedophi&e, a terrorist, or a seria& rapist6 arristers can't pic and choose which case the# tae on. e ca&& this the cab ran r*&e, and no !atter how *nsa%o*r# the indi%id*a&s !a# be in the cab ran *e*e, #o*
ha%e to tae the! on their &ega& +o*rne#. *t this s#ste! didn't e-ist in @an*ar# 1:4A. ac then, one brief was e!pt#ing &ega& London. arristers /ed in dro%es. (he instr*ctions were straightforward eno*gh... to prepare and prosec*te the charge against the ing. *t taing on this brief rised !ore than +*st p*b&ic disappro%a&, it rised i!!inent assassination, and e%en eterna& da!nation. (his brief was de&i%ered to one of the few barristers bra%e eno*gh to re!ain in London. is na!e, @ohn Coo. "nd this @ohn Coo, no re&ation to Edward, had &ess than ten da#s to prepare his case. "t its heart, this was a war cri!es' tria&. Char&es was being he&d responsib&e for the atrocities co!!itted b# his ar!#. E%idence abo*nded, b*t @ohn Coo had a prob&e!... in Eng&and, the so*rce of the &aw is the ing. ow co*&d the so*rce of the &aw be prosec*ted b# the &aw6 Dor!er war cri!es +*dge eo5re# )obertson be&ie%es @ohn Coo was the rst barrister in histor# to prosec*te t#rann#. $ p*t to hi! a con*ndr*! of !# own. (he Ci%i& ar is now o%er, Char&es $ has pro%ed to be partic*&ar&# d*p&icito*s, and the# p*t hi! on tria&. h# didn't he +*st ha%e an accident, fa&& down the stairs, or get accidenta&&# shot so!ewhere6 ?o*'%e got to *nderstand these peop&e, these p*ritans. (he# be&ie%ed that a&& the# did had to be in the sight of od. (he# be&ie%ed that the# were on&# sa%ed b# %irt*e of their abi&it# to +*stif# e%er#thing the# did. "nd so the# deter!ined to p*t hi! on as fair a tria& as the ti!es wo*&d a&&ow. "nd to do that in a wa# in which od wo*&d spea towards, in the co*rse of the tria&. (he# had no c&ear deter!ination that he'd be e-ec*ted at the beginning of the tria&. $t was a process which, &ie e%er#thing e&se, wo*&d be cond*cted b# od. ow Eng&and, od, and Char&es awaited the !ost i!portant tria& in Eng&ish histor#. *t had @ohn Coo so&%ed that see!ing&# i!possib&e &ega& p*<<&e6 "&& cases in Eng&and are carried o*t in the na!e of the ing, )e- %ers*s the defendant. Co*&d )e- be against )e-6 Coo's !asterstroe was to redene the ter!s of the arg*!ent. (he ing, he said, was not an indi%id*a&, b*t an o5ice, and the ho&der of that o5ice had to go%ern b#, and according to, the &aws of the &and and not otherwise. $ngenio*s. *t wo*&d @ohn Coo's
arg*!ent be s*stained in co*rt6 Char&es St*art wo*&d be tried in the greatest co*rt in the &and, est!inster a&&. *t s*ch an i!portant prisoner co*&d not be bro*ght thro*gh the crowds. $t rised resc*e b# his fo&&owers, or assassination b# his ene!ies. On @an*ar# 2;th, 1:4A, a so&*tion was fo*nd. (he f*nera& barge was !aing its s&ow wa# a&ong the (ha!es, it contained not a corpse, b*t a ing. $t was en ro*te to the co*rt %ia a ri%er entrance. Char&es was being bro*ght in thro*gh the bac door. Legend c&ai!s the ing's +o*rne# into these &ega&&# *ne-p&ored waters was obser%ed b# Eng&and's new &eader. O&i%er Cro!we&& stood watching, white as the wa&&. e t*rned. 0# !asters, he is co!e, he is co!e, and now we sha&& be doing that great wor that the nation wi&& be f*&& of. ooden partitions he&d bac the crowds, or fai&ing that, ar!ed g*ards. Hp there, :B +*dges sat, trans-ed. (o a%oid assassination, the presiding +*dge wore a stee&8&ined, b*&&et8proof, bea%er sin hat. (ho*sands of e#es were -ed on the prosec*ting barrister, @ohn Coo, here, centre stage. "s Coo addressed the co*rt, the ing poed hi! in the bac with his cane. ad Coo #ie&ded to the ing's re*est to stop, his &ega& a*thorit# wo*&d be gone. Coo bo&d&# contin*ed. (he ing str*c hi! harder with the cane. (he tip fe&& o5, Coo dec&ined to pic it *p, and the ing was forced to nee& to do so. (he s#!bo&is! was ob%io*s and o!ino*s... the ing ne&t before the &aw, the so*rce of the &aw had beco!e s*b+ect to the &aw. (he ing was read the charge. Char&es pa*sed and ased, $ wo*&d now b# what power $ a! ca&&ed hither6= e to&d the co*rt, " ing cannot be tried b# an# s*perior +*risdiction on Earth.= Sadda!, 0i&ose%ic so*nd e-act&# &ie Char&es $. # what power do #o* p*t !e on tria&6= Hnder!ining the co*rt's a*thorit#, Char&es repeated&# dec&ined to p&ead. " ref*sa& to p&ead, as @ohn Coo new, was tanta!o*nt to a f*&& confession. Char&es's fate was in the hands of the +*dges. $ thin it was to*ch and go, and $ thin that he !ight ha%e a%oided the death sentence had he not !ade the !istae b# ta&ing to his g*ards. "nd he to&d his g*ards that he fe&t no sorrow at a&&, no regrets, for the &oss of &ife in the Ci%i& ars. One in e%er# ten Eng&ish!en had been i&&ed in
these wars, which had been started b# the ing, and he to&d his g*ards he didn't fee& an#thing. "nd that !essage got bac to Coo, it got bac to the ing's +*dges, who rea&ised that this was a !an who had abso&*te&# no regrets abo*t i&&ing Eng&ish!en, and so that is wh#, in e5ect, the +*dges, on the who&e, were t*rned against hi!. Dina&&#, Char&es St*art was conde!ned to death. ELLS (OLL (his doc*!ent is *ni*e in o*r histor#. (he death warrant of a ing, iss*ed b# a co*rt. ere are the 9A so&diers, "&der!en, +*dges, who signed awa# the &ife of a ing. ere we ha%e @ohn radshaw, he of the b*&&et8proof hat, and here, O&i%er Cro!we&&. Char&es $ was !arched thro*gh an*eting o*se *nder a )*bens painting ce&ebrating the di%ine right of ings. " painting the ing had co!!issioned. Hn&ie toda#, hiteha&& in 1:4A was narrow, and this p&ace was chosen for the e-ec*tion of the ing to thwart an# &ast8ditch atte!pts b# ro#a&ist ca%a&r# to resc*e hi!. e&ow !e, and in front of a &arge throng of peop&e, ing Char&es $ stepped thro*gh a window, onto a sca5o&d, to face his fate. $n the space of 1,;;; #ears, the &aw de%o&%ed fro! being a ro*gh code to sett&e &oca& disp*tes in "ng&o8Sa-on Eng&and, into an independent instit*tion, so powerf*& that it was capab&e of i&&ing the ing of Eng&and. Char&es $ and the !onarch# had been swept aside. *t in 1:4A, there was a fear that Eng&and had si!p&# swapped one t#rannica& regi!e for another. $n an atte!pt to i!pose order on the chaos *n&eashed b# the Ci%i& ar, O&i%er Cro!we&& hi!se&f was sta!ping down on dissenters, whether re&igio*s gro*ps &ie the )anters, or po&itica& !o%e!ents, &ie the Le%e&&ers. )adica& gro*ps co*&d no &onger &oo to ar&ia!ent to *pho&d the &aw in the ca*se of &ibert#. $ndi%id*a&s wo*&d ha%e to dep&o# the &aw the!se&%es. "nd none !ore so than the &eading &e%e&&er @ohn Li&b*rne. @ohn Li&b*rne be&ie%ed that the ti!e had now co!e for a&& the !en of Eng&and to c&ai! their rights. Dreedo! of worship and *ni%ersa& s*5rage. (hese &iberties, he be&ie%ed, were not bestowed *pon the! b# go%ern!ent or b# the &aw, the# were the birthright of a&& Eng&ish!en. Li&b*rne e-p&oited the power of the printing press to propagate his %iews and energise his s*pporters. is secret&#
p*b&ished
diatribes
were
passionate,
ro*sing,
and
seditio*s.
"nd
p*b&ications s*ch as this were distrib*ted *p8and8down the co*ntr# b# a networ of his s#!pathisers. Dreedo! of speech was &i!ited in Li&b*rne's da#. Li&b*rne's words !anaged to inf*riate e%er# ad!inistration *nder which he &i%ed. (he# wo*&d repeated&# &oc hi! *p to sh*t hi! *p. *t Li&b*rne had a cr*cia& &ega& weapon on his side. One enshrined in the etition of )ight. (here had been !an# wa#s b# which peop&e had tried to escape i!prison!ent. Di&ing thro*gh bars, c&i!bing o%er wa&&s, digging t*nne&s, b*t none has the si!p&e e&egance of *sing a s!a&& piece of paper to /ing open the doors. (his is the !agic of habeas corp*s. @ohn Li&b*rn tho*ght this piece of paper co*&d be the e# to his freedo!. ere's how habeas corp*s wors in practice... a doc*!ent nown as a writ is de&i%ered to the +ai&er sa#ing, we direct #o* to ha%e the bod#, habeas corp*s in Latin, of sa#, arr# otter, before this co*rt, a&ong with the reason for detention. $f the +ai&er cannot satisf# the co*rt that the reason is &awf*&, then arr# otter wa&s free. abeas corp*s is a re!ed# against arbitrar# arrest, and *n&awf*& i!prison!ent. Li&b*rne e!p&o#ed habeas corp*s !ore often than an#one in histor#. (he res*&ts were !ore s#!bo&ic than act*a&. e was ab&e to high&ight his predica!ent and e!barrass the a*thorities, #et he'd sti&& be sent bac to +ai&. $f an#thing showed how the &aw was being s*b%erted, it was this. (he a*thorities new the# co*&dn't get awa# with it fore%er. $n 0arch 1:4A, Li&b*rne's &atest pa!ph&et attacing Cro!we&&'s regi!e got hi! arrested. hi&e Li&b*rne was being he&d, ar&ia!ent created a new &aw. $t !ade it treasonab&e to ca&& the go%ern!ent t#rannica&, or *n&awf*& in print. " !*tin# in O-fordshire bro*ght things to a head. Li&b*rne's pa!ph&ets were b&a!ed for goading the troops to re%o&t. Cro!we&& p*t Li&b*rne on tria& for p*b&ishing seditio*s pa!ph&ets, *nder this con%enient new treason &aw. Cro!we&& &eft for $re&and, safe in the now&edge that Li&b*rne was a&& b*t a dead !an. (he e%idence against Li&b*rne was %er# strong. (his ti!e, he had been &awf*&&# detained, charged, and p*t on tria&, and in those circ*!stances, habeas corp*s was both irre&e%ant and
i!potent. orse sti&&, Li&b*rne was going to defend hi!se&f. "nd, as we &aw#ers &ie to sa#, he who represents hi!se&f has a foo& for a c&ient. *t @ohn Li&b*rne was no foo&. e was perhaps the greatest a!ate*r ad%ocate e%er to set foot in an Eng&ish co*rt. $ !et historian (ed Ia&&ance to nd o*t !ore abo*t how Li&b*rne fo*ght for his &ife. is co*rtroo! perfor!ance is incredib&e, in ter!s of the a!o*nt of &ega& citations that he *ses in his speeches. So he rea&&# wows the +*r# as we&& with his &ega& now&edge. E%en tho*gh he eeps re*esting &ega& co*nse&, there's this, ind of, do*b&e p&a# here. e sa#s, =$ need &ega& he&p= a&& the ti!e, #et he's *oting %erbati! fro! Coe. "nd fro! %ario*s other a*thorities at the sa!e ti!e. "nd what he does rea&&# nice&#, a&& the wa# thro*gh the tria&, is chip awa# at the co*rt's standing, he s*ggests this isn't rea&&# a &egiti!ate co*rt. e does things &ie refer to the president of the co*rt, Lord resident radshaw, +*st as 0r radshaw, +*st to p*&& down those peop&e who are acc*sing hi!, tae the! down a peg or two. So!e e-traordinar# things happened d*ring the tria&, one $ thin in%o&%ed a cha!ber pot. e eeps asing to ha%e a toi&et brea, he eeps sa#ing he's been standing for a &ong ti!e at the bar, and he needs to go and re&ie%e hi!se&f. "nd the co*rt is, sort of, fed *p with these &ib*stering tactics, and sa#, no, #o* can't go to the &a%ator#, we'%e got to get on with o*r proceedings, it's a %er# i!portant tria&. "nd he sa#s, we&&, if #o* won't &et !e ha%e a toi&et brea, then at &east &et !e ha%e a cha!ber pot that $ can *se, and the# do act*a&&# bring in a cha!ber pot for hi! to act*a&&# *se within the co*rtroo!. "nd he does that in front of the +*r#6 ?es, #es. Li&b*rne had !o*nted a defence few barristers co*&d better toda#. ow wo*&d the +*r# react6 Dina&&#, the fore!an anno*nced hi! not g*i&t#, his &ife was sa%ed, and the cheers fro! his s*pporters &asted o%er ha&f an ho*r. "t his tria&, Li&b*rne won i!portant rights... the right to a %igoro*s se&f defence, to cha&&enge see!ing *nfairness in co*rt proced*res, and to tae co!fort breas. Li&b*rne had wo%en the &aw into a safet# net that ens*red ar&ia!ent co*&dn't si&ence hi!. ow, +*st as Char&es $ had *sed the Star Cha!ber, Cro!we&& needed to nd a wa# of dea&ing with Li&b*rne o*tside
the nor!a& para!eters of the &ega& s#ste!. (he ne-t ti!e Li&b*rne stepped o*t of &ine, Cro!we&& wo*&d ha%e so!ething *p his s&ee%e. efore Li&b*rne co*&d iss*e a writ of habeas corp*s, he was shipped across the Eng&ish Channe&, be#ond the reach of the &aw. On this o5shore !i&itar# o*tpost, the nor!a& protections of Eng&ish &aw were a&!ost i!possib&e to e!p&o#. @erse# was O&i%er Cro!we&&'s *antana!o a#. Li&b*rne's e-traordinar# rendition too hi! fro! the re&ati%e co!fort of the tower to here, 0ont Org*ei& Cast&e. Cro!we&& wasn't prepared to tae an# !ore chances with a !an &ie @ohn Li&b*rne and despatched hi! here to @erse#. $so&ated on an is&and, o*t of sight and o*t of !ind, he was be#ond the e5ecti%e reach of habeas corp*s. Cast&e c*rator >o*g Dord ga%e !e a !*ch war!er we&co!e than Li&b*rne recei%ed. So, this is Li&b*rne's ce&&6 (his is Li&b*rne's ce&&, #es. $t's his bedcha!ber fro! the 1:4;s thro*gh to the 1::;s. (his is where i!portant prisoners were &odged. $n the s*!!er, it's sti&& *ite chi&&# and $ notice the wa&&s &oo and fee& da!p. ?es. ?es, we're %er# e-posed *p here at the top of the c&i5. So, what's the prospect he wo*&d ha%e fro! *p here6 e&&, fro! here, #o* can see straight o%er to the east. (here's or!and#. On the hori
par&ia!entar# ta&es. " habeas corp*s bi&& was drawn *p for pre%ention of i!prison!ent be#ond the seas. o8one wo*&d be p&aced in Li&b*rne's &ega& &i!bo again. *t each ti!e the bi&& &ooed &ie&# to win, the o*se of Lords %oted against it. $t was hit bac and forth. ow it faced #et another Lords defeat. (he opposing sides each appointed a &ord as a te&&er. Lord orris for the noes and Lord re# for the a#es. (he stor# goes that Lord orris, a !an s*b+ect to the %apo*rs, was easi&# distracted. " partic*&ar&# fat &ord ca!e b# to be co*nted and re# said, =(enF= (his rather feeb&e +est soon beca!e %er# serio*s. Lord orris fai&ed to see either the +oe or that his opponent had added nine e-tra %otes. (he bi&& went thro*gh b# a !a+orit# of two. ow no8one co*&d be i!prisoned be#ond the seas. owhere in the E!pire was be#ond the reach of habeas corp*s. " fact that wo*&d &ater ha%e h*ge, rather *nforeseen conse*ences. "nd a&& thans to one... fat... &ord. $n 2;;4, the HS S*pre!e Co*rt r*&ed that detention in *antana!o a# was i&&ega& beca*se it infringed the abeas Corp*s "ct. "!erica sti&& &oos to pre8 independence Eng&ish &aw for precedent. ac in 17th8Cent*r# Eng&and, when O&i%er Cro!we&& died, the regi!e he fo*nded wo*&d soon co&&apse. (he power %ac**! was swift&# &&ed as the heir of Char&es $ was restored to the throne. a%ing had Cro!we&&'s head p&aced on a stae and @ohn Coo, the !an who'd prosec*ted his father, h*ng, drawn and *artered, Char&es $$ res*!ed the St*arts' fa%o*rite fa!i&# pasti!e... re&igio*s persec*tion. " new &aw targeted re&igions o*tside the Ch*rch of Eng&and. $t se%ere&# restricted a&& non8confor!ist worship. (he Con%entic&e "ct banned an# re&igio*s asse!b&# of !ore than %e non8"ng&icans. (ho*sands were prosec*ted *nder the act. Catho&ics, resb#terians, J*aers. "nd those fo*nd g*i&t# were s*b+ect to i!prison!ent or e%en transportation. *t that didn't stop two g*ts# J*aers def#ing the &aw. i&&ia! 0ead and i&&ia! enn had not +*st broen the r*&e of %e. (he#'d been addressing a crowd of h*ndreds when the# were arrested. ersona&&#, $ sho*&d &o%e to ha%e defended the!. $t was o*trageo*s &egis&ation. *t it wo*&d ha%e been an *phi&& str*gg&e. $n &aw, the# were banged to rights. *t a&tho*gh the# were
g*i&t# b# the &etter of the &aw, !an# Eng&ish!en fe&t the &aw was !ora&&# wrong. "nd &*ci&# for the defendants, fo*r of the! were on the +*r#. (hese fo*r +*r#!en, &ed b# a !erchant ca&&ed Edward *she&, bra%e&# dec&ined to nd the defendants g*i&t# of a cri!ina& o5ence. (he f*rio*s +*dge ca&&ed *she& i!p*dent and threatened to p*t his !ar on hi!. *t *she& he&d r! and soon the re!ainder of the +*r# fo&&owed s*it. (heir %erdict was not g*i&t#. hen the +*r# fai&ed to bring in the right %erdict, the +*dge sh*t the! *p witho*t !eat or drin, re or tobacco, to reconsider their decision. Or to star%e. (he conditions in ewgate @ai& were so bad that one in ten prisoners died there. *t habeas corp*s was waiting to strie again. Edward *she& !anaged to get a writ heard before Chief @*stice Ia*ghan. (he case had beco!e infa!o*s. "nd est!inster a&& was hanging on Ia*ghan's decision. hat happened ne-t wo*&d ha%e a &asting &ega& i!pact. $ ased the c*rrent Lord Chief @*stice, the highest +*dge in the &and, abo*t Ia*ghan's r*&ing. e dec&ared the +*r# sho*&d ret*rn %erdicts in accordance with their conscience and that no +*ror sho*&d e%er be p*nished for the %erdict he reached. ow signicant was the case of Edward *she&6 $t was abso&*te&# cr*cia&. (his was a re!arab&e !o!ent in o*r histor#. Chief @*stice Ia*ghan !ade it abso&*te&# p&ain that that was the end of an# possibi&it# of a +*r#!an being p*nished for his %erdict. "nd it ne%er happened again. "nd ne%er has. (he +*r# were na&&# freed. *t on&# after spending se%era& wees in Eng&and's !ost notorio*s +ai&. (oda#, +*ries are free to gi%e their %erdict witho*t recri!ination, no !atter how per%erse it appears to a +*dge. O%er the co*rse of the 17th Cent*r#, the &iberties of the Eng&ish had *ndergone an e-traordinar# change for the better. (his was thans not on&# to !en &ie Edward *she& and @ohn Li&b*rne, b*t a&so to the &ega& instr*!ent at the heart of their stories. abeas corp*s had ser%ed Eng&ish!en we&&. Co*&d it now dea& with an horric ab*se which the Eng&ish were in/icting on others6 1771. (he (ha!es docs. " &ega& doc*!ent is raced down to a ship that is abo*t to set sai& with its cargo for @a!aica. (he doc*!ent re*ired the ship's captain to prod*ce his cargo before the Chief @*stice. (he doc*!ent
was a writ of habeas corp*s. (he cargo, a s&a%e ca&&ed @a!es So!erset. # p*tting So!erset in chains, the ship's captain had beco!e his +ai&er, answerab&e to the &aw. "nd as we ha%e seen, habeas corp*s gi%es a prisoner the power to co!pe& his +ai&er to +*stif# his i!prison!ent. " rea&isation swept across the s&a%e trade. (he %er# &ega&it# of s&a%er# itse&f was going to be tested in co*rt. So, who was @a!es So!erset and how had he co!e to be here6 $ ased "rth*r (orrington, who has st*died the histor# of s&a%er#. @a!es So!erset was idnapped and taen to Iirginia. e was bo*ght b# a gent&e!an b# the na!e of Char&es Stewart. H!... a bo# of nine, ens&a%ed, was +*st a pagebo#, was +*st a he&per. *t e%ent*a&&#, abo*t ten or so #ears after, this 0r Stewart bro*ght hi! to London. "nd that's when a&& the things began to change. @a!es So!erset escaped. Drightened and in a strange &and, he so*ght ref*ge with !e!bers of London's b&ac co!!*nit#. e !*st ha%e be&ie%ed that #o* can r*n awa# and it's a&& right. *t whereas his !aster fe&t that this is a bit of, *!... e&&, he was *ngratef*&. (hat was what Stewart had said. "nd therefore, what Stewart did was to get one of his friends, or he paid so!ebod# to do it, and e%ent*a&&#, the# act*a&&# got ho&d and the# idnapped @a!es So!erset and p*t hi! on a ship. Dort*nate&#, whi&e So!erset was on the r*n, he had enco*ntered abo&itionists. (heir &eader, ran%i&&e Sharp, was seeing to cha&&enge the &ega& basis of s&a%er#. hen he heard of So!erset's p&ight, he new he had fo*nd the perfect test case. $n the case of ran%i&&e Sharp, he fe&t that these are h*!an, and therefore, h*!an beings cannot be and sho*&d not be treated in that partic*&ar wa#, in which the# are ens&a%ed, the# are not gi%en h*!an rights and so on. So Sharp was deter!ined to brea that c#c&e if he co*&d. "t botto!, this was an arg*!ent abo*t whether a s&a%e had rights on ritish soi&. )*&e ritannia, the pop*&ar anthe! of the era, boasted that ritons ne%er sha&& be s&a%es. ow the &ega& s#ste! was being ased, Can s&a%es e%er be ritons6 >id the &aw regard a s&a%e as propert#, &ie this boat6 " writ of habeas corp*s in this case wo*&d be !eaning&ess, or wo*&d the &aw see a s&a%e as a h*!an being6 $f so, habeas corp*s co*&d cha&&enge their
transportation o*t of the rea&! witho*t their consent. H&ti!ate&#, the +*dge!ent in this case wo*&d re%erberate on both sides of the "t&antic. (he case went to the %er# top, to Lord 0anse&d. (he s&a%e traders co*&d ha%e e-pected 0anse&d to be their a&&#. Of Scottish nob&e birth, he e!bodied the estab&ish!ent. Dro! his i!posing ho!e, enwood o*se, to his r*&ings e!bracing free trade. e had been &eader of both o*ses of ar&ia!ent and was the highest +*dge in the &and. Lord Chief @*stice. $n this ne &ibrar#, the er*dite Lord 0anse&d st*died the &aw. "nd there he is in a&& his g&or#, robed in er!ine, reading Cicero, with o!er inspiring hi!, and the pi&&ar of So&o!on behind hi!. "s the case gro*nd on in est!inster a&&, Lord 0anse&d is said to ha%e proc&ai!ed, Let +*stice be done, tho*gh the hea%ens fa&&.= oth sides were we&& represented. (he abo&itionists' barristers c&ai!ed there was no &aw &ega&ising s&a%er# in this co*ntr#, and so it !*st be i&&ega&. (he s&a%ers' co*nse& co*ntered b# sa#ing that as contracts for the sa&e of s&a%es were recognised in Eng&ish &aw, that !*st %a&idate s&a%er# in Eng&and. (he co*rt ad+o*rned for Lord 0anse&d to prepare his +*dge!ent. >id the &aw of Iirginia ha%e an# standing in Eng&and6 as s&a%er# sanctioned or at &east per!itted *nder co!!on &aw6 e pondered &ong and hard on this !o!ento*s tas. Lord 0anse&d brooded o%er the case. hat did the &aw sa#6 hat did his heart sa#6 hat i!pact wo*&d a r*&ing on the @a!es So!erset case ha%e6 ran%i&&e Sharp, the great abo&itionist, was an-io*s&# awaiting the r*&ing. *t ha%ing c&ashed with 0anse&d in the past, he didn't co!e to co*rt to a%oid antagonising the +*dge. So he did not hear the +*dge!ent de&i%ered, sta#ing instead at his ho!e. (he res*&t was sprinted thro*gh the streets to hi!. $n this street, so!ewhere near that spot, ran%i&&e Sharp answered his door. (here in front of hi!, s!i&ing, e-*&tant, stood @a!es So!erset, a free !an. $t was a staggering decision. ow had Lord 0anse&d co!e to r*&e in a !ere s&a%e's fa%o*r6 "&tho*gh he !a# not ha%e rea&ised it, Sharp had a secret agent at the %er# heart of this ho*se. She was the da*ghter of this !an, Captain @ohn Lindsa#. 0anse&d's nephew. er na!e was >ido e&&, and it's be&ie%ed her !other was an
"frican s&a%e. >ido grew *p at enwood in Lord 0anse&d's care. as 0anse&d's &and!ar +*dge!ent in/*enced b# his fondness for her6 $n his +*dge!ent, Lord 0anse&d said that the state of s&a%er# is of s*ch a nat*re so odio*s that the Eng&ish co!!on &aw co*&d ne%er accept it. ow, whether he !eant b# this to ignite a spar that wo*&d end s&a%er# is *nc&ear, b*t that is how his +*dge!ent was interpreted both here and abroad. One sing&e writ of habeas corp*s had re&eased not +*st one !an fro! bondage, b*t was to !ar the start of freedo! for a&& the 19,;;; s&a%es then in Eng&and. abeas corp*s re!ains part of Eng&ish &aw. *t it rare&# needs to be *sed toda#. $n !# entire career, $'%e ne%er had to see it on beha&f of an# of !# c&ients, nor has an#bod# e&se $ now. e si!p&# tae it for granted that e%er#bod# has the right to now the reasons for their detention, +*st as the# ha%e the right to a fair tria& b# an independent +*r# *nder the a*spices of an i!partia& +*dge. "rbitrar# action b# the state at an# stage in the &ega& process is so!ething we hope, &ie s&a%er#, has been consigned to histor#. e !a# regard these &iberties as freeborn rights, to *se @ohn Li&b*rne's words, b*t we !*stn't forget +*st how hard won the# were. e-t ti!e 8 re%o&*tion in the co*rtroo!. ow the cri!ina& tria& t*rned fro! a one8sided str*gg&e in the shadow of the noose into the fairest co*rt s#ste! on Earth. $t's the stor# of how barristers too centre stage and of how the &aw na&&# ad!itted its own fa&&ibi&it#.
Strange Case of the Law Episode 3 $n 1B29, ewgate +ai&ers escorted @ohn S!ith a&ong this e%er8 narrowing
corridor.
e had
been con%icted
at
the
O&d
ai&e# of
ho*sebreaing. 'e had no barrister to represent hi!, no witnesses to ca&& on oath. '"&& he co*&d do was to protest his innocence 8 in %ain.' @ohn S!ith nished his wa& abo*t here. "nd this was probab&# his &ast %iew of da#&ight. e was hanged for this cri!e. @ohn S!ith was a bo# of +*st fteen. (he case of
@ohn
S!ith
so*nds
&ie
an
awf*&
aberration,
a
shocing&#
disproportionate p*nish!ent for a propert# o5ence and in/icted on one so #o*ng. ?et this was no !iscarriage of +*stice. (he tria& fo&&owed the d*e process of the da#, a d*e process that was far fro! e*a&, b*t was staced against the defendant. Life or death co*&d be decided in !in*tes. 0ost defendants had no one to p*t their case, other than the +*dge hi!se&f. $f this now see!s rather s*rprising to *s, it's beca*se of the re!arab&e transfor!ation that's taen p&ace in o*r &ega& s#ste! o%er the &ast three cent*ries. $t's one that went we&& be#ond d*e process to enshrine in Eng&ish co*rt proced*re the princip&e of the e*a&it# of ar!s, of si!p&e fairness. '(hat transfor!ation was shaped b# seis!ic shifts in Eng&ish societ# 'fro! the $nd*stria& )e%o&*tion 'to the rise of the pop*&ar press. '$t's a stor# that taes p&ace in the shadow of the noose, 'one that feat*res spies, %isionar# po&iticians b&a
b# co!parison, were sti&& in the >ar "ges. Land #o*rse&f in the doc and #o* fo*nd #o*rse&f in a !edie%a& night!are. ith no po&ice force and no forensic science ser%ice, the on&# !eans of deterring cri!e was thro*gh e-e!p&ar# p*nish!ent... whipping, transportation and hanging. "nd an a&read# se%ere s#ste! was abo*t to get e%en b&oodier. (his is a&tha! in a!pshire. '$n 1723, it was a p&ace of terror. '" gang ra!paged thro*gh these forests, poaching, robbing and !*rdering, 'their faces b&aced *p in disg*ise. '$t was feared these a&tha! &acs, as the# were nown, wo*&d spread their %io&ence across Eng&and.' "s a nee+er reaction, the a&tha! &ac "ct was r*shed into &aw. S*dden&# a&& !anner of o5ences were p*nishab&e b# death. @*st being ca*ght in a par with a b&aced8*p face co*&d get #o* hanged, a&ong with da!aging trees and wrecing sh ponds. $t was the harshest piece of &egis&ation that the co*ntr# had e%er seen. (h*s began a terrib&e trend that !eant that b# the end of the cent*r# !ore than 2;; o5ences were p*nishab&e b# death. >eterrence was a&&. "s @*dge *&&er to&d a fe&on he was sentencing, =?o* are to be hanged not for stea&ing horses b*t that horses !a# not be sto&en. '(his s#ste! was apt&# na!ed the &ood# Code. '"t its heart was London's a&& of @*stice, the O&d ai&e#. '$n eorgian ti!es, tria&s were he&d in a co*rtroo! e-posed to the e&e!ents to pre%ent t#ph*s 'infecting others. (he O&d ai&e# toda# !a# &oo &ie 'a pa&ace of +*stice, b*t in the 1Bth cent*r# it tr*&# was a death trap. '$n 179;, &ong after the b*i&ding had been enc&osed, 'an o*tbrea of +ai& fe%er pro!isc*o*s&# i&&ed :; peop&e, 'inc&*ding two +*dges and the Lord 0a#or.' $f the ph#sica& conditions were %i&e, the wa# in which +*stice was !eted o*t see!s !*ch worse. ?o* are facing the noose. "re #o* entit&ed to a defence barrister6 o. Can #o* or #o*r defence witnesses gi%e sworn testi!on#6 o. >o +*ries retire to gi%e caref*& consideration to #o*r case6 o. "nd #o* were &*c# if the entire proceedings fro! start to %erdict and sentence too !ore than 19 !in*tes. (he idea that the acc*sed was entit&ed to an ade*ate defence had #et to penetrate these wa&&s. $n this era, peop&e fe&t the innocent sho*&d be ab&e to arg*e their own cases. 0an# an acc*sed,
when co!pe&&ed to defend the!se&%es in this a&ien en%iron!ent, with its *nfa!i&iar proced*res and ter!ino&og#, wo*&d ha%e been terried into incoherence when their &i%es were hanging in the ba&ance. $f the defendant needed assistance, the +*dge was e-pected to o5er it. @*dges were not a&wa#s seen to be the apogee of i!partia&it# and so!e co*&d nd the co*rt da# a &itt&e ener%ating. $n 1:AA, Spencer Cowper, grandfather of the poet i&&ia!, was on tria& for !*rder. (owards the end of a &ength# da#, an e-ha*sted +*dge ad!itted he was str*gg&ing to s*! *p the case. $ a! sensib&e $ ha%e o!itted !an# things,= he said, b*t $ a! a &itt&e faint and cannot repeat an# !ore of the e%idence.= >espite this disp&a# of +*dicia& &assit*de, or perhaps beca*se of it, the +*r# fo*nd Cowper not g*i&t#. ith +*dges #o*r on&# defender and the &ood# Code sanctioning hanging for o%er 2;; cri!es, #o* !ight ha%e e-pected the hang!an to be the b*siest trades!an in town. (hanf*&&#, so!ething ca!e between #o* and the noose. '(he +*r#.' $'&& &et #o* into a wee secret gained fro! !an# #ears' e-perience at the cri!ina& bar. >espite a&& their to*gh ta&ing in the p*b, !ost peop&e, when the# nd the!se&%es on a +*r# ha%ing to decide the fate of a fe&&ow h*!an, in !an# cases ha%e a tendenc# to go a&&... soft or tender. (ab&oid +o*rna&ists !a# !ere&# re/ect the inc&ination or e%en aspiration of !an# of their readers to string the! *p the!se&%es, b*t when the# do ho&d so!eone's &ife in their hand, !ost peop&e wobb&e. "nd this was nothing new. @*ries were considerab&# &ess p*niti%e 2;; #ears ago than perhaps #o* !ight thin. hen faced with a &ood# Code which i!posed the death pena&t# for inn*!erab&e pett# o5ences, +*ries were inc&ined to go against their oath of bringing in a tr*e %erdict and either to nd peop&e not g*i&t# or, !ore often, to red*ce the a!o*nt of propert# sto&en so that it was no &onger a capita& o5ence. (his was nown as pio*s per+*r#. "nd &et !e gi%e #o* an e-a!p&e. ere's +*st one case fro! the O&d ai&e# records and it re&ates to a 0ar# ain of the arish of St "ndrew o&born. ow she was indicted for the theft of c&othing worth o%er 9; shi&&ings. (hat was a capita& o5ence. She !ade a fri%o&o*s defence *pon which the +*r# fo*nd her g*i&t#
to the %a&*e of fo*r shi&&ings and ten pence,= th*s rendering her no &onger &iab&e to e-ec*tion and so she was !ere&# branded. Co*nting on the !erc# of either the +*r# or the +*dge co*&d see! a &itt&e bit &ie )*ssian )o*&ette, b*t soon a !eans arose which wo*&d he&p e%en the odds for the defendants and this is sti&& a cornerstone of Eng&ish +*stice toda#. *t its beginning is shro*ded, sti&&, in so!e &itt&e !#ster#. '(he !#ster# starts in the $nns of Co*rt, ho!e to London's barristers. '(hese &aw#ers had been p&eading in Eng&ish co*rts since the 13th cent*r#, 'b*t their ro&e had been !ain&# &i!ited to ci%i& cases and &itigation.' ere at Linco&n's $nn, as at the other $nns of Co*rt, !ore and !ore barristers ca!e to p&# their trade. (he# were bright, energetic #o*ng !en and their in/*ence wo*&d be profo*nd. '# the 1Bth cent*r#, barristers were prosec*ting cri!ina& cases on beha&f of the Crown. '"nd fro! the 173;s, so!e +*dges were a&&owing defence barristers 'to appear on beha&f of prisoners facing the death pena&t#.' ad the +*dges rea&ised the in/*ence barristers wo*&d co!e to ha%e on the co*rt and how the# wo*&d &arge&# disp&ace the +*diciar# fro! their do!inating ro&e in tria&s, the# !ight we&& ha%e tried to s&a! the door sh*t. Once barristers had their foot in that door, howe%er, there was no one who co*&d get the! o*t. arristers appearing in cri!ina& cases co*&dn't fa&& bac on !ere rhetoric. (he# had to !aster a forensic *estioning techni*e. Since the 13th cent*r#, it was not considered proper for a barrister, in e5ect, to appear against the ing in fe&on# cases that were bro*ght b# the crown. (h*s defence barristers co*&d not address the +*r# direct&#, b*t had to re&# on %igoro*s cross8e-a!ination and the odd co!!ent dropped in. One barrister stands o*t. e did !ore than an# other to change e-isting practice and to transfor! the %er# nat*re of the cri!ina& tria&. i&&ia! arrow. (he son of a Scottish schoo&!aster, arrow was ca&&ed to the bar in 17B3. $n &ater &ife he wo*&d beco!e an 0, the "ttorne# enera& and a ri%# Co*nci&&or, b*t his &asting i!pact ca!e fro! the ti!e he spent at the O&d ai&e# as one of the !ost
pro&ic
defence
ad%ocates
of
his
era.
ehind
these
rather
*nprepossessing wa&&s, a &ega& re%o&*tion was taing p&ace. 'S*ch was
arrow's &egac#, a&ong with the theatrica&it# of his co*rtroo! st#&e, 'it's not s*rprising that his stor# has been t*rned into a (I dra!a. '(his is the set of arrow's Law. '(he series &arge&# draws on arrow's act*a& cases, which often were tr*&# dra!atic.' $f he were g*i&t#, which $ state p&ain&# he is not, !*st he hang a&ongside !*rderers and c*tp*rses... 0r arrowF ?o* wi&& be in conte!ptF $s that a +*st end for an# !an6 ent&e!en, #o* !*st now that 0r arrow was p&a#ing #o* &ie a harpist. '$ ased the historica& cons*&tant for the series how !*ch the (I arrow re/ected the !an 're%ea&ed b# the co*rt records.' "&& we can base things on are the transcripts, so when #o* go thro*gh the! #o* can see that arrow is !ost denite&# breaing the !o*&d in ter!s of how he approached the tas of pers*ading the +*r# abo*t his case. $n his st#&e, he see!s to be s*ccinct and to the point and he can create a word pict*re fo&&owed b# a *estion or a co!!ent or a *estion dressed *p as a co!!ent. " !ode& !odern barrister. $n a wa#, he's the godfather of the who&e !odern s#ste! of ad%ocac#, as $ see it an#wa#, with this acidic ind of %er# "!erican st#&e, #o* now, approach to ad%ocac#. ?o* are a !an who wi&& testif# for a reward, #o* are a !an who wi&& ha%e others hanged for a rewardF $ witness fro! Christian probit#F ?o* witness fro! greedF 0# LordF 0r arrow, #o* ha%e said #o*r sa#. " cons*!!ate perfor!er, arrow was fa!ed for his aggressi%e st#&e of cross8e-a!ination. '"ndrew *chan, who p&a#s arrow, see!s s*ch a nat*ra& t for the ro&e '$ wondered if there was a &aw#er in the fa!i&#.' 0# father *sed to be a C*sto!s o5icer at 0anchester "irport. "nd he wo*&d be re&ent&ess in +*st tr#ing to get to the botto! of where e-act&# the#'d co!e fro!, wh# the# didn't ha%e a bag. @*st te&& the tr*th. $ don't be&ie%e a word. here is #o*r *nc&e6 hat's his na!e6 ?o* don't e%en now his na!e6 @*st this... =$ don't be&ie%e a word of it.= Lie a b*&&et. "nd arrow's !anner of *estioning see!ed to be %er# si!i&ar to, $ cannot see! to reco&&ect. e&&, tr#. eca*se this person's abo*t to be hanged.= $s it rea&&# *ite eas# to get into the ro&e of arrow6 $t's an actor's drea!, $ s*ppose, beca*se it is theatre. " &ot of barristers ha%e a &itt&e bit of actor in the!, so the# &o%e that arena and the
ca*&dron of the co*rt. arrow's bri&&iant *se of theatrics !eant the opposition fe&t ob&iged to fo&&ow s*it. Soon the two sides were batt&ing each other as ad%ersaries. Eng&ish tria&s had taen on a new for!, which re!ains with *s toda#. (he ad%ersaria& tria& s#ste! in which $ practise was born in co*rts s*ch as this. e don't, a&as, ha%e the n*ts an# !ore, nor the port, b*t the wigs and the briefs tied *p in pin ribbon are e-act&# the sa!e. arrow !a# ha%e been a !o*&d8breaer in the co*rtroo!, b*t he was a&so %er# !*ch in t*ne with the !indset of his age. $n 1Bth8cent*r# ritain, the pre%ai&ing inte&&ect*a& c&i!ate was one of rigo*r, e%en of scepticis!. Leading thiners s*ch as the Scottish phi&osopher >a%id *!e e!phasised the i!portance of direct e-perience in the ac*isition of now&edge. Learned instit*tions s*ch as the )o#a& Societ# cha!pioned and pop*&arised the scientic !ethod. (he instinct of an# ed*cated person of arrow's generation wo*&d be to tae nothing for granted, b*t to *estion recei%ed wisdo! and to test the e%idence. '"nd this En&ighten!ent thining had fo*nd its wa# into the co*rtroo!. 're%io*s&#, a&& e%idence, e%en !ere hearsa#, was e*a&&# ad!issib&e, 'b*t now r*&es of what co*&d and co*&d not be considered e%idence were introd*ced. '(hans to arrow, the entire ba&ance of proof in the co*rtroo! was changing.' efore arrow, the foc*s was on the response of the acc*sed to the charges. arrow shifted that foc*s onto the case presented b# the prosec*tion. (he tria& was no &onger a test of the defendant, b*t of the e%idence against hi!. "nd &ined to this approach is a princip&e that has beco!e the cornerstone of idea&s of +*stice across the wor&d, #et can be s*!!ed *p in one phrase. $nnocent *nti& pro%en g*i&t#. @*st fo*r words, b*t toda# a ha&&owed concept. (he artic*&ation of this e# princip&e, the pres*!ption of innocence, has been attrib*ted to i&&ia! arrow. (he fact that it has is a trib*te to his i!pact on the cri!ina& tria& process and on the rights of the acc*sed. 'Of co*rse, it too !ore than one !an to change Eng&and's entire &ega& !achine. '(he !#ster# is what the other factors !ight be. 'ow the ad%ersaria& s#ste! gained traction, s*rprising&#, is *nc&ear. '(here was no "ct of ar&ia!ent, no
+*dg!ent b# or decree fro! the higher +*diciar#, 'b*t &ega& historian )ichard Iog&er be&ie%es the answer !a# &ie with broader forces. 'othing &ess than the $nd*stria& )e%o&*tion.' h# did this de%e&op!ent tae p&ace at this ti!e6 $ thin it is no coincidence that this de%e&op!ent happened in Eng&and in the !idd&e of the 1Bth cent*r# at the sa!e ti!e that we were e-periencing these profo*nd changes fro! o*r $nd*stria& )e%o&*tion. 0o%ing fro! a fe*da& econo!# to a !aret, ind*stria& econo!#. "nd $ thin those changes a5ected a&& facets of &ife, inc&*ding the cri!ina& tria&. "nd ad%ersaria&it# is abo%e a&& a !aret8dri%en s#ste! of +*stice. ?o* pa# for what #o* get in ter!s of representation. (he $nd*stria& )e%o&*tion had bro*ght with it increasing co!!ercia& &itigation, disp*tes o%er patent rights, !ining rights. ow &aw#ers in cri!ina& co*rts too this a stage f*rther and introd*ced a bo&der concept... that a defendant had rights. # ta&ing that &ang*age when the# got into the cri!ina& co*rts, the# re%o&*tionised the proced*re. "nd instead of the cri!ina& defendant being a passi%e ob+ect of the proced*re, he or she beca!e an acti%e participant who was rights8bearing, who co*&d act*a&&# ha%e a ro&e and be represented. "nd this was the birth of a rights c*&t*re that has s*bse*ent&# spread a&& o%er the wor&d. '(he re%o&*tionar# idea that defendants had rights 'had an i!pact far greater than +*st in o*r co*rts. 'hat began in the co*rtroo! grew into an entire c*&t*re. 'i&&ia! arrow, as it t*rns o*t, was part of a bigger trend.' $ can c&ai! so!e !odest connection with i&&ia! arrow. (his is 29 edford )ow, where $ and :; other barristers ha%e o*r cha!bers. *t in the 1Bth cent*r#, this was i&&ia! arrow's ho*se. *t $ ha%e to ad!it that despite his %er# !an# considerab&e achie%e!ents, he's not !# greatest hero. (hat hono*r has to go to his conte!porar#, so!eti!e co&&eag*e and ri%a&, perhaps the greatest barrister of the! a&&, (ho!as Ersine. "nd $ sa# that not +*st beca*se he's Scottish. (ho!as Ersine was the &aw#er who tr*&# cha!pioned the new c*&t*re of rights. Charis!atic, and with a s*perb ana&#tica& !ind, he was in t*ne with the new c*rrents of po&itica& tho*ght of the 1Bth cent*r#. hereas arrow see!s to ha%e been dri%en &arge&# b# persona& a!bition, (ho!as
Ersine, thro*gho*t his career, consistent&# dep&o#ed his %er# considerab&e ta&ents in the defence of En&ighten!ent %a&*es and &ibert#. Ersine accepted the brief to defend (ho!as aine, the !ost radica& Eng&ish writer of the age, whose ideas had he&ped inspire the "!erican ar of $ndependence and the Drench )e%o&*tion. $n 17A2, aine was acc*sed of seditio*s &ibe& for his essa# (he )ights of 0an. Ersine's decision was to cost hi! his post as "ttorne# enera& to the rince of a&es. (wo #ears &ater, in 17A4, Ersine wo*&d tae on his !ost i!portant case, one that wo*&d both showcase his re!arab&e si&&s and test the! to the %er# &i!it. "t the end of the 1Bth cent*r#, in the wae of the Drench )e%o&*tion, the r*&ers of Eng&and beca!e !ore paranoid than at an# ti!e since the reign of @a!es $. (he go%ern!ent of i&&ia! itt se%ere&# restricted ci%i& &iberties and instit*ted a series of prosec*tions for treason which threatened to !ae an =Eng&ish terror= a rea&it#. (he Drench )e%o&*tion had horried Eng&and's r*&ers. o*&d the#, as their Drench co*nterparts before the!, be dragged to the g*i&&otine6 '&aces &ie here, Ceci& Co*rt in London, 'were hotbeds of radica&is!. 'o%ern!ent spies were watching. '0ai& was searched. '>issidents were inti!idated. aranoia was rife.' One radica& gro*p was in&trated b# at &east %e go%ern!ent spies. $t went b# the innoc*o*s na!e of the London Corresponding Societ#. Oh, than #o*. $n handbi&&s s*ch as this, the gro*p's &eader (ho!as ard# ca&&ed for refor! 8 %otes for a&& !en and ann*a& par&ia!ents. i&&ia! itt's go%ern!ent, howe%er, saw not refor! b*t re%o&*tion.
rinting
presses
were
secret&#
despatching
pa!ph&ets
thro*gho*t the co*ntr# and corresponding societies were springing *p e%er#where. (he go%ern!ent was shaen. e concei%e it necessar# to direct the p*b&ic e#e to the ca*se of o*r !isfort*nes and to awaen the s&eeping reason of o*r co*ntr#!en to the p*rs*it of the on&# re!ed# which can e%er pro%e e5ect*a&. a!e&#, a thoro*gh refor! of ar&ia!ent.= (he !e!bership of these po&itica& associations inc&*ded tiners, tai&ors, so&diers, b*t a&so spies. Conse*ent&#, the wea&th of e%idence p*rporting to i!p&icate the corresponding societies in sedition contin*ed to grow *nti&, in the
spring of 17A4, i&&ia! itt co*&d *n&eash the f*&& force of the &aw against the!. (ho!as ard# and two other !e!bers of the London Corresponding Societ# were to stand tria& for high treason. $f these !en were con%icted, it wo*&d +*st be the start. (he go%ern!ent had another B;; arrest warrants waiting to be e-ec*ted. (heir chances of ac*itta& &ooed b&ea. (hen (ho!as Ersine agreed to ght their case. (he treason tria&s which began in October, 17A4, had the nation trans-ed. Ersine new that he wo*&dn't +*st be addressing the co*rt. is words wo*&d echo aro*nd the entire co*ntr#. "t the heart of his defence, Ersine p*t forward a c&ear state!ent of En&ighten!ent princip&es. 0en !a# assert the right of e%er# peop&e to choose their go%ern!ent witho*t seeing to destro# their own.= $n e-coriating st#&e, Ersine de!o&ished witness after witness for the prosec*tion. " sp# was ca&&ed into the witness bo-. e c&ai!ed to be gi%ing his e%idence fro! his notes, b*t fre*ent&# was &ooing at the cei&ing. ood od "&!ight#F th*ndered Ersine. )eco&&ection !i-ing itse&f with notes in a case of high treason6 Oh, e-ce&&ent e%idenceF Opening the defence, Ersine spoe for se%en ho*rs. ot s*rprising&#, this was one of the &ongest tria&s of its age. Dina&&#, on the eighth da#, the +*r# was read# to ret*rn its %erdict a!idst nationwide anticipation. (he +*r# fore!an stood *p. ot g*i&t#, he said. "nd pro!pt&# fainted. $t was a %er# pop*&ar %erdict. eop&e went wi&d with e-cite!ent. (he horses were taen o5 ard# and Ersine's coaches and the# were p*&&ed in tri*!ph thro*gh the streets of London b# +*bi&ant crowds. e &aw#ers are re&*ctant to recognise e-ce&&ence in an#one other than o*rse&%es. "n i!pressi%e +*dge !a# !erit a s!a&& portrait in a corridor, a disting*ished Lord Chief @*stice !a# warrant a f*&&8si
!ost bene%o&ent e-port.' (he ad%ersaria& s#ste! was e-ported e%en be#ond the ritish E!pire and contin*es to this da# in the Hnited States of "!erica and thro*gho*t the Co!!onwea&th. "nd it's sti&& growing. $n the &ast two decades, (aiwan and se%era& Latin "!erican co*ntries ha%e adopted an ad%ersaria& approach. 'ac in the 1Bth cent*r#, the in%o&%e!ent of barristers !a# ha%e !ade cri!ina& tria&s fairer, 'b*t those con%icted sti&& faced br*ta& p*nish!ents. '(he &ood# Code was sti&& r!&# on the stat*re boos 'and there was no sign that ar&ia!ent was in the !ood to ro&& bac on capita& o5ences. 'ritain's war with )e%o&*tionar# Drance had triggered a series of r*ns on the an of Eng&and, 'draining its go&d reser%es. 'Dearing it wo*&d r*n o*t of go&d, 'in 17A7 it increased the *se of bannotes 8 a co*nterfeiter's drea!. '*t forging a bannote was a capita& cri!e. '(he an of Eng&and now fo*nd itse&f beco!ing, in e5ect, a forger# po&ice!an, 'enforcing the f*&& se%erit# of the &aw. *ndreds were sentenced to the ga&&ows. '"t the ritish 0*se*!, historian @ac 0ocford e-p&ained to !e how the satirist eorge Cr*ishan 'witnessed one s*ch hanging and responded with a t#pica&&# trenchant protest... 'a caricat*rist's bannote.' $t's c&ear&# not a an of Eng&and note. o, b*t what it %er# c&e%er&# does is !oc a &ot of feat*res which were co!!onp&ace on an of Eng&and notes of this period and the past. So #o* ha%e the fa!o*s i!age of ritannia, b*t in this case she's seen de%o*ring a bab#'s head and #o* ha%e %ario*s se&eta&8&ie g*res on the note. ere we'%e got a po*nd sign, b*t it's a rope. ?eah, #o* ha%e the hang!an's noose, which has been c&e%er&# t*rned into the po*nd sign. ere $ thin we'%e got what &oos &ie a row of peop&e being hanged. ?o* do. (hat's right, e-act&#. "nd the signat*re is not the o%ernor of the an of Eng&and. o, it is @ac etch, a s&ang ter! for the hang!an at this ti!e. "nd what sort of i!pact wo*&d this ha%e had6 $ thin it s#!bo&ised the point in the ca!paign against the *se of capita& p*nish!ent for forger# that the an's ro&e as the a*thorit# on po&icing the prob&e! and prosec*ting indi%id*a&s was co!ing to an end. Cr*ishan's note showed that the tide was t*rning against the *se of the death pena&t#
for forger#. @*ries ref*sed to con%ict forgers. (he an of Eng&and itse&f now pressed the o%ern!ent to re&a- its draconian pena&ties in a bid to sec*re !ore s*ccessf*& con%ictions. Dorger# was not the on&# &aw needing refor!. (he who&e s#ste!, sa%age and incoherent, re*ired o%erha*&ing and on&# o%ern!ent co*&d do this. (he po&itician with the co*rage, the obsessi%e e#e for detai&, and the power of persona&it# to tae on this pro+ect was )obert ee&. hen )obert ee& beca!e o!e Secretar#, there were o%er 1;; stat*tes dea&ing with forger# a&one. e r*th&ess&# attaced this &egis&ati%e !ess. O*t of this bonre of &egis&ation, ee& p*&&ed a piece of &egis&ati%e !agic. 12; stat*tes were transfor!ed into one, +*st si- pages &ong. ith cons*!!ate si&&, )obert ee& did !ore to refor! the cri!ina& +*stice s#ste! than a&!ost an# other o!e Secretar#. 'O%er the co*rse of eight #ears, ee& conso&idated three *arters of a&& o5ences into a few e# "cts. '(he a&tha! &ac "ct with its doo*g&as *rd.' O%er the pre%io*s 1;; #ears, there had been a %ast a!o*nt of ar&ia!entar# &egis&ation dea&ing with cri!es, !ain&# !aing the! capita& o5ences. (hat was a tendenc#. Of those 12; "cts dea&ing with forger#, $ thin abo*t ha&f, :;, created capita& o5ences. ee& was not a h*!anitarian. e was not a &ibera& o!e Secretar#. $t was not his !ain ai! to !ae a !ore h*!ane, !ercif*& s#ste!. (hat was one e5ect of what he did, b*t it wasn't act*a&&# his !ain ai!. is !ain ai! was a (or# ai!. $t was act*a&&# to tid# things *p, !ae the! sensib&e. $t wasn't pri!ari&# h*!anitarian. $ thin he was *ite c&ear&# &ooing for the right answer and was not to be p*shed o5 with inade*ate answers or so&*tions that weren't rea&&# so&*tions. e rea&&# was gen*ine&# &ooing for, woring hard for, woring da# and night for the right answer for the s#ste!. ee& had refor!ed the &aw. ow he searched for the !eans to enforce it. (he &ood# Code's *n+*st p*nish!ents had fai&ed to ste! cri!e. Co*&d there be a better deterrent6 $n "*g*st, 2;11, rioting swept Eng&and and, for a ti!e,
the !ob r*&ed. 'E%ent*a&&#, the po&ice contro&&ed the sit*ation, b*t i!agine the destr*ction 'if, as in )obert ee&'s da#, the po&ice didn't e-ist. '$nstead of dep&o#ing po&ice and e!p&o#ing water cannon, 'go%ern!ents re&ied on the )iot "ct.' (he "ct he&d that where 12 or !ore peop&e gathered together in rioto*s asse!b&# and re+ected the reading of the )iot "ct and fai&ed to disperse within an ho*r, then force co*&d be *sed against the!. (hose re!aining on the scene wo*&d be s*b+ect to the !ost se%ere pena&t# of a&&... death. " p*b&ic o5icia&, *s*a&&# a !agistrate, wo*&d rst of a&& read these words. O*r So%ereign Lord the ing chargeth and co!!andeth a&& persons being asse!b&ed i!!ediate&# to disperse the!se&%es and peaceab&# to depart to their habitations or to their &awf*& b*siness *pon the pains contained in the "ct for pre%enting t*!*&ts and rioto*s asse!b&ies. od sa%e the ingF $f #o* heard those words #o* had an ho*r to disperse or face the conse*ences. $n ee&'s da#, riots were fre*ent, b*t the# often ended with deaths on the streets. (he o%ern!ent's options were &i!ited. ?o* had a n*!ber of ad hoc peop&e &ie the ow Street )*nners, b*t basica&&# #o* re&ied on the ar!# beca*se that was the on&# force that was a%ai&ab&e. ee& ad%ocated the creation of a po&ice force. Hncontro%ersia& to *s, b*t at the ti!e a radica& and s*spect concept. h# were peop&e opposed to the creation of a po&ice force6 eca*se one of the the!es which r*ns thro*gh Eng&ish histor# in the 1Bth and 1Ath cent*r# is the fear of a standing ar!#. " standing ar!# was tho*ght of as so!ething the St*arts rather be&ie%ed in. $t was a reinforce!ent of ro#a& power. "nd peop&e tho*ght 8 and this was %er# strong when ee& rst prod*ced the p&an for a 0etropo&itan o&ice... that this was +*st the go%ern!ent tr#ing to grab ho&d of the &i%es of the peop&e. ee& had &ong so*ght to rep&ace the e-isting and ine5ecti%e s#ste! of nightwatch!en and parish constab&es, b*t he faced an *phi&& str*gg&e in the face of the arg*!ent that a professiona& po&ice force wo*&d be a danger to &ibert#. Co*&d )obert ee& con%ince the pop*&ation that ha%ing a po&ice force did not !ean Eng&and wo*&d beco!e a po&ice state6 $n 1B2A, he did this b# pers*ading the p*b&ic that the po&ice wo*&d not +*st contro& peop&e,
the# wo*&d pri!ari&# contro& cri!e. $ want to teach peop&e, wrote ee&, that &ibert# does not consist in ha%ing #o*r ho*se robbed b# organised gangs of thie%es or &ea%ing the principa& streets of London in the night&# possession of dr*nen wo!en or %agabonds. Cr*cia&&# for Eng&ish cri!ina& &aw, the creation of a professiona& po&ice force !eant the# beca!e the deterrent against cri!e rather than draconian pena&ties. (he
raw cit#scapes
described b# Char&es >icens saw ee&'s refor!s in action. Societ#'s predators, the Dagins and i&& S#es, faced a !ore i!!ediate threat than the noose... the increasing &ie&ihood of being detected. hen a Dagin was in the doc, he wo*&d now get a brief. *t there was sti&& one shocing i!ba&ance. '(he defence barrister was ghting with one hand tied behind his bac.' (oda# no co*rtroo! dra!a is co!p&ete witho*t a defence ad%ocate %ehe!ent&# addressing the +*r# on his c&ient's beha&f. $t's the c*&!inating point of the defence. $t's the part $ en+o# !ost. 0# cross8 e-a!ination !ere&# pro%ides the grist for that partic*&ar !i&&. ?et *nti& the rst ha&f of the 1Ath cent*r#, e-cept in treason tria&s, on&# the prosec*tion had that pri%i&ege, not the defence. *t now a&& that changed. So!eti!es e!otiona&, often theatrica&, the speech b# defence co*nse& to the +*r# beca!e a e# !o!ent in an# tria&. "nd no ritish &aw#er !astered that !o!ent better than Sir Edward 0arsha&& a&&, whose career spanned the &ate8Iictorian and Edwardian eras. $t's tho*ght he !a# ha%e he&ped !ore peop&e to escape the noose than an# other barrister. 'Sa&&# S!ith JC is writing a new biograph# of 0arsha&& a&& 'and has researched his e#e8 catching tactics.' (he tr*th is +*ries &ie to be entertained to so!e degree. "nd 0arsha&& a&& entertained the!. "nd he was *sing techni*es which nowada#s wo*&d be regarded as being inappropriate. 0an# of the! were deri%ed fro! the stage and fro! !e&odra!as. e wo*&d p*t o*t his ar!s and e!*&ate the sca&es of +*stice. ?o* ha%e to re!e!ber he was a %er# ta&& !an and so it was %er# i!pressi%e. ?o* ha%e to be a %er# great ad%ocate to eep that *p witho*t &ooing si&&#. "nd he wo*&d go thro*gh the e%idence with his ar!s o*t &ie that and then s&ow&#, s&ow&# tip his ar!s and tip his
ar!s as he pro%ed that a&& the e%idence was in fa%o*r of... the innocence of his c&ient. 0arsha&& a&& is be&ie%ed to ha%e had act*a& &essons in stagecraft. $f so, the# certain&# see! to ha%e paid o5. e was e-traordinari&# s*ccessf*&. e had this !agnetic capacit# to pers*ade +*ries. *t in 1A;7 0arsha&& a&& too on perhaps his to*ghest assign!ent. (he Ca!den (own !*rder was one of the !ost notorio*s cri!es of the Edwardian era. " ta&e of a br*ta& and sa%age i&&ing and fog8&&ed London streets that co*&d ha%e been ripped fro! the caseboo of Sher&oc o&!es. "n artist ca&&ed )obert ood was acc*sed of !*rdering a part8ti!e prostit*te, E!i&# >i!!oc. er bod# had been fo*nd in her Ca!den (own &odgings and her throat had been s&it fro! ear to ear. (his gr*eso!e case was a sensation. $t inspired a series of paintings b# a&ter Sicert. '"nd it was co%ered in great detai& b# the press, which had fo*nd #o* co*&dn't beat a !*rder tria& 'when it ca!e to p*&&ing in the readers.' 0arsha&& a&&'s secretar# he&pf*&&#, if rather &aborio*s&#, co&&ated the press c*ttings of his cases and she did so in se%era& %o&*!es. (hese pro%ide a considerab&e insight into the techni*e of his cross8e-a!ination and the st#&e of his orator#. 'Dro! the reports of the tria&, it's c&ear that a&& cast serio*s do*bt on prosec*tion e#e8witnesses 'who had identied )obert ood. '*t to destro# the prosec*tion's case, a&& did so!ething that was a&!ost *nheard of. 'e ca&&ed his own c&ient to the stand.' (he !o!ent had now arri%ed for the prisoner to go into the witness bo-. (he co*rt was s*dden&# on the tiptoe of e-cite!ent. 0r 0arsha&& a&& si!p&# said, '$ now p*t the prisoner in the bo-.' ood +*!ped *p in co*rt. (he warders opened the side door of the doc and with a&acrit# and a p&easant s!i&e on his face, ood strode to the witness bo-.= Since 1BAB, defendants co*&d gi%e e%idence in their own defence, b*t this was considered *nwise and e%en foo&hard#. (he defence dis&ied it beca*se the# said that nobod# sho*&d ha%e to defend their position, that it was *p to the prosec*tion to pro%e the case and not *p to the defendant to gi%e an# e-p&anation. (he prosec*tion didn't &ie it in capita& cases beca*se there was a ind of, $ thin *nderstandab&e, h*!an resistance to ha%ing to cross8
e-a!ine a !an when his &ife was at stae. 0r 0arsha&& a&& started !ost dra!atica&&#. '>id #o* i&& E!i&# >i!!oc6' he ased, speaing s&ow&# and distinct&#. ood drew hi!se&f *p *ic&#. '$t is ridic*&o*s, ' he said, facing the +*r#.= (he e-pected answer was a si!p&e no. )obert ood's !anner in the doc was e5ete and it did not s*ggest a !an capab&e of s*ch a gris&# cri!e, a point 0arsha&& a&& was then ab&e to dri%e ho!e in his passionate c&osing address to the +*r#. (hen he b*rst o*t in dra!atic f*r#. '$ sa# again 8 $ want a %erdict of not g*i&t# and nothing e&seF '" %erdict of not g*i&t# to i&& this charge 'so that none of the &#ing witnesses can ga&%anise it hence into an# se!b&ance of &ife.'= (he press and p*b&ic eager&# awaited the res*&t. Dina&&#, the +*r# ga%e their %erdict. ot g*i&t#. 0arsha&& a&&'s ga!b&e had paid o5 and pro%ed that getting a c&ient to gi%e e%idence in their own defence co*&d be part of a fair tria&. ot that this achie%ed +*stice for the *nfort*nate %icti!. (he !*rderer of E!i&# >i!!oc was ne%er fo*nd. 'Cases &ie the Ca!den (own !*rder tria& were a circ*&ation boon for the pop*&ar press, 'b*t the papers were beginning to go be#ond !ere reporting, 'to tae a !ore acti%e interest in the &ega& process.' ith the rise of a !ore in%estigati%e and &ess deferentia& press, the &aw itse&f fe&& *nder the spot&ight.
@*dicia&
decisions
were
scr*tinised
and
criticised
and
!iscarriages of +*stice once conned to anecdotes to&d b# barristers o%er the port beca!e front8page news. '(he new paper on the b&oc, the >ai&# 0ai&, had heard of a shocing !iscarriage of +*stice. '$t was a c&assic case of !istaen identit#. '"do&f ec was identied as a swind&er b# 12 %icti!s. '(he# a&& swore he was a con artist ca&&ing hi!se&f Lord i&ton de i&&o*ghb#. '(he# had been triced into gi%ing their +ewe&s to this fae &ord. '>espite his protestations, ec was +ai&ed.' >esperate to pro%e his innocence, ec tried to get his case reopened, b*t a&& his so&icitor co*&d do was repeated&# to petition the o!e O5ice for redress. (he +*dges be&ie%ed +*stice was foo&8proof and hence there was no proper appea&s proced*re. ec's appea& fe&& on deaf ears. One of the wor&d's !ost *n&*c# !en, ec had a s!a&& chin of good fort*ne. ?ears ear&ier, the >ai&# 0ai&'s +o*rna&ist
eorge Si!s had &istened to ec reco*nting his tra%e&s in er*, +o*rne#s that had happened when he was a&&eged&# in London swind&ing wo!en. (he >ai&# 0ai& ca!paigned in earnest for ec's re&ease. ?o* didn't ha%e to be Sher&oc o&!es to rea&ise the case stan, and his creator, Sir "rth*r Conan >o#&e, +oined the ght. Dina&&#, *nder press*re, the a*thorities paro&ed ec. e had ser%ed %e #ears of hard &abo*r. (he rea& fra*dster, i&&ia! 0e#er, now str*c again and was ca*ght red8handed. ec's innocence was *ndeniab&e. )are&# has a !iscarriage of +*stice had greater i!pact. O*trage t*rned to press*re for &ega& refor!. Dina&&#, in 1A;7, ar&ia!ent created the Co*rt of Cri!ina& "ppea&. "t &ast, the &ega& s#ste! ad!itted it was fa&&ib&e. Dar fro! being a sign of weaness, howe%er, this new co*rt showed that Eng&ish &aw was strong eno*gh to acnow&edge and dea& with its !istaes. *t no appea& co*rt can rectif# a !iscarriage if the %icti! has been hanged. Once the &aw ad!itted its fa&&ibi&it#, capita& p*nish!ent itse&f was on >eath )ow. (his is the notorio*s >ead 0an's a&. $n da#s of o&d, #o* were !arched fro! #o*r ce&& a&ong this corridor to !eet #o*r !aer. (he wa&&s conned #o*, the arches beca!e narrower and narrower. (here was no going bac on #o*r wa& to the ga&&ows. ow e%en toda# there's a sinister fee& to this p&ace. $t's g&oo!#, it's oppressi%e and it's c&a*strophobic. '*t how can #o* e-ec*te so!eone nowing that their con%iction !a# be *nsafe6 '0edie%a& +*dges &ooed to od for the na& word. 'Later, the &aw adopted is infa&&ibi&it#. '*t once the &aw's i!perfections were ad!itted, its a*thorit# to i!pose the *&ti!ate sanction 'was thrown into do*bt. 'E%ent*a&&#, in the 1A:;s, the death pena&t# was abo&ished for !*rder 'and in 1AAB for treason. oodness nows, o*r co*rts sti&& !ae !istaes, 'b*t the# are no &onger fata& errors. '$'%e fo*nd !# %o#age thro*gh the stor# of Eng&ish &aw e-traordinar# and often inspiring. 'O%er this series, we'%e seen how +*stice went fro! tria& b# ordea& 'to tria& b# a +*r# of #o*r peers, the dening feat*re of Eng&ish co!!on &aw, 'how we enshrined a c*&t*re of rights and doc*!ents &ie 0agna Carta and the etition of )ight, 'which went on to shape &ibert# across the wor&d, 'and how we e%o&%ed the
ad%ersaria& s#ste!, 'which e-e!p&ies a fair, !odern co*rt proced*re. '*t the stor# is not o%er #et. '$ be&ie%e that the co!!on &aw c*rrent&# faces a serio*s cha&&enge.' $'! here on the roof of the S*pre!e Co*rt, one of the points of the triang&e of power in this co*ntr#. O%er there, est!inster "bbe# and the nationa& shrine and the )o#a& Chape&. "nd o%er here, the o*ses of ar&ia!ent. (he po&itica& power of the ch*rch and the crown has e%aporated, b*t the power of the *pstarts, ar&ia!ent, is in the ascendanc#. @*dges, once the creators of the &aw, ha%e &arge&# had that ro&e taen fro! the! b# ar&ia!ent. >id +*dges ac*iesce beca*se the# rea&ise that the co!!on &aw can't dea& with a rapid&# changing wor&d6 hen so!e *np&easant no%e&t# arises s*ch as chi&d pornograph# on the internet or credit card c&oning and societ# wants it dea&t with, there's no *se &ooing to the co!!on &aw for prohibitions or to ear&ier +*dg!ents for &ega& so&*tions. "s the Iictorians new on&# too we&&, a fast8changing societ# re*ires new &aws. (his is where ar&ia!ent co!es in. $t enacts the appropriate &egis&ation, it creates new cri!es and it changes the &aw of e%idence, which is
a&&
good
and
we&&
pro%ided
that
that
&egis&ation
is
coherent,
co!prehensib&e and concise. *t since the &ate 1A7;s, go%ern!ents see! to ha%e beco!e increasing&# addicted to enacting new &aws. So!e of these new &aws were !*ch needed and &ong o%erd*e. (he 1AB4 o&ice and Cri!ina& E%idence "ct, for instance, he&ped to ens*re that a&& s*spects were treated with conspic*o*s fairness fro! the !o!ent of arrest, thro*gho*t their ti!e in detention. *t what was once a &ight d*sting of new &egis&ation rst of a&& beca!e a snowstor! and then an a%a&anche threatening to o%erwhe&! the entire &ega& s#ste!. So!e !a# ca&& this o%er&oad. $ ca&& it &egis&ati%e diarrhoea. '$ wo*&d arg*e that so!e of this &egis&ation is again a res*&t of press in/*ence, 'b*t pop*&ar press*re doesn't a&wa#s !ae for good &aw. 'hen $ !et the Lord Chief @*stice, he tried to gi%e !e a /a%o*r of +*st one #ear's &egis&ation.' Cri!e $nternationa& Co8operation "ct has A: sections and si- sched*&es containing 124 paragraphs... 227 sections, fo*r sched*&es, containing B2 paragraphs. (he Se-*a& O5ences "ct, 143
