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Ep 2 p. 14
Ep 3 p. 27
Strange Case of the Law Episode 1
'October, Westminster Abbey.' 'I've come to see one of the great set
pieces of English law... 'the ceremony marking the start of the new legal
year.' This is the legal establishment on show. Ritual, tradition, plenty of
wigs. It's colourful, it's splendid. The danger is that it can make the law
seem far removed from most people's lives. In fact, the public have been at
the centre of the legal system for centuries. Sitting in a jury, it is they who
decide guilt or innocence. Without precedent in history, English law came to
embody a fairness and equality barely known elsewhere. In this series, I'll
show how the story of England's law is nothing less than the story of
England's people. 'I'll explain how despite being forged by kings and
invaders, 'by the Church and politicians, English law has always resisted
'becoming merely the tool of the powerful.' But this isn't an open and shut
case. 'The law has also been guilty of brutality and excess. 'Its methods
have sometimes been merciless. It has taken pioneering 'and courageous
individuals to put it back in its path 'of justice and fairness.' The result, in
my opinion, exceeds anything England has achieved in the arts or the
sciences. In its importance, and in its influence, English law is this country's
greatest gift to the world. 'My name's Harry Potter, and I'm a barrister. 'I
didn't come to the profession by a conventional route. 'It was while working
as a prison chaplain 'that I became interested in the law.' 'Now I practice in
London and I specialise in criminal defence.' Like all my colleagues, I work
within a very specific system, the English common law. Its principles are
practised in countries as far afield as India and America, but it's quite
different from the system used on the Continent. Or even, in many respects,
in my native Scotland. 'The term common law doesn't just mean something

'practised uniformly across the country. 'It denotes a system which places
lay people 'at the heart of justice, in the form of the jury. 'A system where
judges largely base their rulings 'on earlier, similar cases, actual practice,
'rather than on theory or on legislation. 'And it's been that way for
centuries.' This makes venerable rituals like the annual ceremony in
Westminster Abbey perhaps less detached from reality than they might look.
Because several of the key features that characterise the courtrooms I work
in today were in place by the 14th century. So how did England, unlike its
neighbours, develop such a unique and enduring system? That's what I'm
setting out to explore in this programme. The origin of the English common
law. 'The first thing any legal system needs is a set of laws. 'And I've come
to Rochester in Kent 'to track down the earliest-known English law code.'
'Established in the 5th century, 'Kent is thought to have been the first AngloSaxon kingdom. 'Rochester's ancient cathedral and imposing castle testify
'to the region's early predominance.' But Rochester boasts yet another
treasure, which for a lawyer such as me is even more significant. 'Stored in
the council archives is a book of enormous importance, 'not just for the law
but for the entire English-speaking world.' This is the treasure I was telling
you about. It's the Textus Roffensis, or the Rochester book. And it contains a
number of documents but the most significant is the first, and it's this. A few
pages of a text dating back to 600. It's not only the first writing in English
that we have, so it's the beginning of English literature, it's the first law
code that we have. It's a very simple list of fines or compensation for
accidents, injuries, wrongs. If hair seizure takes place, 50 sceatta as
compensation." If an ear becomes struck off, one is to compensate with 12
shillings." If one strikes off a thumb, 20 shillings." And this is perhaps the
most sensitive one. If someone disables a genital member, one is to buy him
off with three person payments." 'A person payment was the monetary value
ascribed to a man's life.' 'In this instance, the victim was compensated for
the children 'he would no longer be able to sire.' We tend to think that the
compensation culture is something imported from America. But here it is, at

the very start of English law. 'The laws in the Textus have traditionally been
attributed 'to the first English king to become a Christian.' 'This was
Aethelberht, who ruled Kent 'in the late 6th and early 7th century.' 'So how
did he fit into this early compensation culture?' 'I asked the historian and
linguist Carole Hough 'to explain how the system worked in practice.' There
are different ranks within Anglo-Saxon society. There's the King, the
aristocracy, the ordinary free man, and the slave. And it is the rank of the
victim that determines the amount of compensation that they are entitled
to. So if you damage the King's toenail, he gets more than if you damage a
slave's toenail? Don't even think about damaging the King's toenail. Now in
terms of enforcement, do we know if this code was enforced, how it was
enforced? The responsibility for enforcing laws was very much on the
families, the relatives, the victims. Law was enforced by society from within
rather than by the King from the top. So you damage my son's ear and I
come to you and say, Well, the code says that's three shillings", and you
hand over the three shillings? And your family would be standing behind
you, saying "And we insist that you hand it over." And I think one of the
things we have to remember is that the laws would be a starting point for
negotiation between the families. So it wouldn't necessarily be 50 shillings
that was handed over. It would be, "Look, this injury is worth 50 shillings."
Well, I've got a cow here that's worth 10 shillings and a few pigs that are
worth six, so we'll make it up in that way to settle the matter." 'The clear
categories and prices of Aethelberht's code 'are bound to have suited his
Anglo-Saxon subjects, 'whose economy centred around farming and
livestock rearing.' At 40, four... 'Still, a law code solely based on cost
appears morally rather empty. 'Surely human beings can't be treated like
commodities or cattle?' You might accuse Aethelberht's code of knowing the
price of everything and the value of nothing. But in the context of the time,
it had much merit. The ability to settle a dispute, to draw a line under a
grievance, was crucial in the early Anglo-Saxon era when the greatest
threat to the stability of society came not from external enemies but from

internal feuds. 'Before the Royal regulation of law, blood feuds were the
only form 'of justice available in Anglo-Saxon lands, and they could lead 'to
escalating conflicts that threatened the entire realm. 'By ensuring justice
for the people, 'Aethelberht and his successors were safeguarding their
thrones.' 'If laws are the essential basis of any legal system, 'the next step is
having institutions to administer 'and implement them. Courts. 'Anglo-Saxon
society was ordered into areas known as hundreds, 'so-called according to
one theory 'because they may have contained roughly 100 homesteads.
'These had their own assemblies to deal with minor cases. 'More serious
disputes and crimes were referred to the shire courts, 'forerunners of our
county courts.' This mound goes by the characterful name of Scutchamer
Knob, sometimes corrupted to Scotsman's Knob. Anyway, in Anglo-Saxon
times, the shire court of Berkshire met here and you couldn't have missed
it. 'Sited prominently on the Ridgeway, 'assemblies here would have been
visible for miles around.' 'Presiding over the shire court might have been a
senior cleric 'such as a bishop, especially when a dispute involved the
church, 'or otherwise a representative of the King, 'a figure known as a
shire reeve or sheriff. 'And trials would be resolved 'using a remarkably
simple method of proof.' Early trials were based on oaths. To prove your
innocence, all you had to do was to swear an oath that you weren't guilty
and to get people to come here to swear to your honesty. If you could rustle
up the prescribed level of support, you were off the hook. 'Just how many
oath helpers you needed 'depended on your social status and the nature of
the alleged offence. 'One 10th-century text stipulates '36 people were
required in a case of arson or murder.' To us, it all sounds very odd and
open to abuse. But this was a society suffused with religious faith. To lie on
oath was to risk damnation, and your friends might be less than keen to
support you if they considered you a liability who could compromise their
good standing in the community. So yes, it was simple, but that needn't
mean it was ineffective or unjust. 'The Anglo-Saxons didn't distinguish
'between what we now regard as civil and criminal law. 'So oaths could be

used to resolve property disputes as well. 'Of course, if two opposing parties
swore contradictory oaths, 'it meant at least one of them was committing a
mortal sin. 'A situation the authorities preferred to avoid.' There's a record
of an important case being adjudicated on this very spot in 990. A wealthy
woman named Winfled lay claim to a couple of estates and the suit was
heard here at shire court under the auspices of two bishops. Winfled's oathhelpers included such luminaries as the Abbot of Abingdon and the Abbess
of Reading. In the event the dispute was settled by arbitration and
compromise, the parties having been urged not to resort to oaths. Which
shows just how serious such a step would have been. 'The system of
hundred and shire courts expanded across the country 'as successive AngloSaxon kings increased their territory.' 'By the 10th century, England had a
legal infrastructure 'unmatched in Europe, with its capital here in
Winchester.' As the size of their kingdoms and the scale of their power grew,
the Anglo-Saxon monarchs continued to issue law codes. But these now
went well beyond the old compensation-based system to include physical
punishments such as mutilation and death. The codes made an increasingly
gruesome read. 'Around 925, 'King Athelstan proclaimed his first law code
for England. 'Right at the beginning he decrees that no thief be spared 'who
may be taken red-handed, 'if he is older than 12 years and has stolen more
than 8p.' 'And new crimes were beginning to emerge, 'reflecting important
social and economic changes.' Athelstan minted the first single currency for
England.

This

coin,

in

Winchester's

Museum,

bears

the

following

inscription. Athelstan Rex Tot Brit. King of all Britain. It's a tiny object, but
it embodies royal authority. And if you were caught making a counterfeit,
you were in a whole lot of trouble. Athelstan's code says If the monier be
guilty, let the hand be struck off that wrought the offence and set up upon
the money smithy. Nailed to the Mint. 'Anglo-Saxon law had become much
harsher 'because, in an attempt to increase its effectiveness, 'kings had
started to take over the administration of justice. 'Any serious crime was
now deemed an offence against the Crown, 'a breach of the King's peace,

'and would be punished with appropriate severity.' 'There was now, in effect,
a tacit contract with the people. 'By acting as the guarantor of justice, 'the
King could claim fines and forfeitures from the offender. 'In return, the
injured party was given the satisfaction 'of seeing the wrong-doer maimed
or executed.' 'Some of the best physical evidence for how justice operated
'in later Anglo-Saxon England 'has been found on the outskirts of
Winchester. 'The archaeologist Andrew Reynolds took me to Harestock,
'close to the old Roman road.' What was found here that makes it so
special? Some archaeological excavation uncovered the remains of 16
individuals buried in a series of graves. The modern name Harestock is
derived from the old English shaffod stockan, which literally means heads
on stakes. It basically tells us that it's an Anglo-Saxon judicial execution
cemetery. So you can imagine here in the Anglo-Saxon period a traveller
moving along the road behind us, we're at a particularly prominent place in
the landscape here. You can see this rising ground. A very prominent place,
a series of poles with heads on sticks. A very dramatic sight for travellers.
So it's making a statement as well? It's sending a very clear message of
power and authority. When you look at the Anglo-Saxons' continental
neighbours, even though they have very highly developed legal culture, they
don't seem to have anywhere near the kind of approach to using the
landscape in a very precise way in terms of where criminals and outcasts
were buried. So what was happening in Anglo-Saxon England was unique?
It was indeed, Harry, yes. 'As a lawyer, I put great emphasis on the quality
of the evidence. 'The remains recovered from the Harestock site 'are now
kept in storage by Winchester museums. 'Andrew showed me one example.'
Now this is astonishingly well-preserved for somebody who has been in the
ground 1,000 years. To layman's eyes, there's nothing here to indicate
anything other than the sad death of a young person. It was a very different
picture when the body was actually taken out of the ground because rather
than the hands being to either side, as they are here, when the body was
excavated, they were found crossed over each other underneath or behind

the back. And that's a clear indication, really, that you've got foul play or
something that's not quite usual going on there. But the greatest indication
that this is not a normal burial is the fact that the head, which you can see
here at the correct anatomical position, was actually found by the side of
the leg. So how was decapitation done? Well, almost certainly with a sword,
probably with the hands tied behind the back. If you take a look at this bone
here where the blade of the sword caught the underside of the jaw when the
person was executed. And that would be one blow, would it? That would
have been one blow. 'In the absence of a police force, the threat of death or
mutilation 'was a clear way of preventing crime but in later Anglo-Saxon
times 'it wasn't just punishment that was a deterrent. 'Even before you were
found guilty, the trial itself could be an ordeal. 'Literally.' 'In common with
much of Europe, 'the later Anglo-Saxons 'adopted an additional method of
determining proof. 'One which drew on the power of the elements... 'of
water, and of fire... 'and which invited God himself to intervene in the trial.'
This was the Judicium Dei, the judgment of God, trial by ordeal. If you were
suspected of a crime, you were subjected to a ritualised but painful and
dangerous test. God would come to the aid of the innocent, but for the
guilty, there would be no such comfort. The ordeal was neither torture nor
punishment... it was a mode of proof. Only if you failed were you punished.
'Because of their religious element, 'ordeals were supervised by the clergy.
'Two main kinds of ordeal were employed in England. 'The first involved
carrying a piece of red-hot iron in your bare hand.' Before the ordeal, the
priest called upon God to bless the hot iron, so that it would be a pleasing
coolness to those who carry it with justice and fortitude, but a burning fire
to the wicked. The accused had to walk a few paces holding the iron. The
hand was then bandaged and after three days was inspected to see if it
were healing. 'If the wound were clean, that was proof of your innocence,
'but if it had started to fester, you were deemed guilty.' 'The second kind of
ordeal was more dangerous. 'You were bound and lowered into a body of
sanctified water. 'And your guilt was determined by whether you floated or

sank.' Now you might assume that sinking meant you were guilty. After all,
you were much more likely to drown. But the belief was that the water was
so pure as to repel sin. Sinking indicated innocence. Floating was proof of
guilt. 'Ordeals like these may sound barbaric 'but they were carried out in
Christian Europe for centuries. 'I asked legal historian John Hudson what
factors determined 'whether you were sent for ordeal in the first place.'
They seem to have been often proposed as a way of settling cases that you
couldn't settle in other ways. For example, if you don't have any factual
proof, no marks on the person who is accused, no evidence that they are
holding stolen goods, no blood on their hands. Then there's a chance that no
one will know who committed the offence, and then the likelihood is that
they would have to go to trial by ordeal. The number of people who actually
undergo the ordeal, having been threatened with it, may well be much
smaller. It seems to be a way of trying to scare people either into confessing
or very often into settling. This was the judgment of God, so how often did
God acquit in such circumstances? We have quantitative evidence. We've
got registers from the 13th century from Hungary, which give us numbers of
people going to ordeal and we find that more than 50% of people get off.
Why might the acquittal rate have been so high? It must be physiological in
some way. People have done studies of throwing people into swimming
pools and seeing how many of them naturally float and how many of them
naturally sink. And, of course, carrying a hot iron should cauterise your
hand. What convicts you, it seems, in England, is not whether you're burnt
or not... everyone would be burnt - it's whether your hand is clean or foul.
Has it turned pus-y or not? What really matters to you is whether you are
bound up thereafter with good ointment and clean bandages. While
officially God was determining the outcome, it seems that human
intervention was quite possible at all stages of the ordeal. And nobody had
greater control over the process than the clergy. How often they might have
given the Almighty helping hand in declaring guilt innocence we'll never
know, but it's clear that the whole ordeal system ensured for the Church a

central role in the dispensing of justice. 'This raised an important question who was in charge of the law? 'The Church or the King? 'It would become a
thorny political issue 'but not for the Anglo-Saxon kings. 'Their role was
about to come to a sudden end.' One night in September 1066, Duke
William of Normandy landed with his army on the south coast. It is said,
here, at Pevensey Bay. The Norman invaders quickly exerted an iron grip
over the entire country. Which should have been bad news for the law of the
Anglo-Saxons, now a vanquished race. Except it wasn't. 'William grasped an
important principle for any ruler of England. 'It's always better to go with
rather than against 'the grain of the law. 'William had political and practical
reasons for this. 'He had invaded England 'because he believed he had the
right to the throne. 'If he wanted to be seen as the true heir of Anglo-Saxon
England, 'dumping or even damaging its legal system 'would have been
counter-productive. 'Besides, the hundred and shire court system was
highly organised 'and efficient by continental standards.' The English, it
appears, were rather better at running the country than they were at
defending it. 'However, one key innovation introduced by the Normans 'was
their favoured method of ordeal.' 'In trial by combat, God would grand
victory to the righteous. 'This was seen by the wealthy as a more dignified
means 'of resolving civil disputes than hot iron or water. 'It could also be
used in criminal cases.' This is the sword you've just been fighting with?
That's right, Harry. We have here a couple of examples of swords of the
early medieval period, looking a bit like this. So if the person was engaging
in a judicial combat, is of this sort of sword that that person would use,
depending on their status? Presumably this cost quite a lot of money at the
time. The equivalent price would be that of a Mercedes Benz or a RollsRoyce today. What was the purpose of the combat? Was it to kill your
opponent or just bludgeon them into submission? Well, for a civil case,
which would be about large amounts of money or land, you would probably
try to bludgeon them into submission and by the time one opponent is on
the ground and calls out "I yield", it is probably equivalent to an out-of-court

settlement in a large civil case. My Lord! 'Criminal cases were an altogether

less dignified affair, 'often involving the kind of riff-raff 'who couldn't afford
a decent blade.' This wooden stick would have been a far more likely
weapon in trial by combat in a criminal case and, in so many words, you try
to hit your opponent where it hurts. Head, shoulder, arms, knees, feet, and
all the male places. Would you like to try? I would go like that, or like that,
boink? Yes. And what about that? I think so. There's no reason to believe
that this wouldn't have been sharpened to a very nasty point, and it may
even have had nails in it. 'Although combat was a means of establishing
proof, not a penalty, 'such a violent procedure sometimes saw the lines
become blurred.' When you beat the opponent to the ground, you might as
well carry on and kill them, because afterwards they'll be taken away and
executed anyway, either for the crime they were initially accused of or if is
the other party that gets beaten to the ground, for having committed major
acts of perjury. 'What might happen if you lost and survived 'is told in one of
the few accounts we have of 'an English judicial duel.' A certain Thomas of
Eldersfield near Gloucester was defeated in combat by a man he'd been
accused of wounding. Rather than having him hanged, the judges, being
merciful, ordered that he merely be castrated and blinded. The victor and
his family set about this task with a degree of relish, throwing his eyes on
the ground and using his testicles as footballs, the local lads kicking them
playfully at the girls. Norman rule was far from being a disaster for English
law. It allowed the people to pursue their Anglo-Saxon legal traditions in the
context of strong and stable government. At least, that was the case for
almost three-quarters of a century. Then, in 1135, Stephen usurped the
throne. Civil war ensued and the country fell apart. 'For nearly two decades,
from 1135 to 1154, 'England suffered what has been called both 'The
Anarchy' 'and the 19-Year Winter.' 'The result was a breakdown in law and
order, 'a myriad of unresolved disputes, a depletion of royal coffers 'and the
collapse of the King's authority.' The man who had to sort out this mess was
Stephen's cousin, Henry II, who came to the throne in 1154 aged just 21.

The main instrument he used was the law. To such an extent that some
historians have called him nothing less than the father of the English
common law. 'Henry realised that it wasn't sufficient just to issue laws. 'The
trick was to ensure their common, 'consistent and effective implementation.'
'So in 1166, Henry established a system of roving Royal Justices. 'These
hand-picked officials represented a new level 'of intervention by the Crown
in English law. 'The Justices were to travel the country, 'making sure that
the law was being enforced by the shire courts 'and claiming all the fines
that were due to the King.' The Justices weren't mere functionaries. Henry
was pulling out his big guns. The first pair to set off included one of his
chief ministers and the Earl of Essex. They managed to get as far as Carlisle
when the Earl rather inconveniently fell ill and died. Before his demise, in
the space of just a few months, they'd managed to shake down half the
shires of England. 'The Justices were able to ascertain how well local
sheriffs were doing 'in prosecuting offenders. 'And how much money was
owed in fines to the king. 'Here, in Lincolnshire, for example, they recorded
more than 100 cases.' There's Simon Fitzwalter who owes 40 shillings for
making a false claim, and one Hugo de Cookton, who was fined a mark for
absenting himself from trial by duel. In total, over 250 was forfeit to the
Crown. Not a lot in today's money, but in 1166, that amount could buy you
20 knights or 165 soldiers for an entire year. 'As the Justices made their way
across the country, 'startling disparities emerged. 'While Yorkshire reported
127 felonies, 'Wiltshire came up with a mere three, 'Worcestershire, just
one, and Shropshire none.' Either these counties had staggeringly virtuous
populations or somebody wasn't doing their job. 'This is where Henry's
other big idea came into play. 'He decreed a single set of legal procedures
'that were strictly to be followed throughout England. 'Such standardisation
was unprecedented in Europe. 'And, crucially, from then on, 'members of
the public would play an essential role in the legal process. 'So-called juries
of presentment became common practice.' Juries of presentment didn't
consider evidence and determine guilt or innocence. Instead they were

representatives of local communities who had to report under oath all the
crimes committed in their area and to name those they deemed responsible.
So not juries in the modern sense, but a key precursor. 'Increasingly, the
county sheriffs were sidelined 'and the juries were required to present their
reports 'to the Justices themselves. 'These Justices were becoming a
powerful body, 'both in the shires and in the capital. 'There was now a
central court firmly established at Westminster. 'It wasn't a Superior Court
or Court of Appeal, 'but it was the base from which the roving Justices set
out 'and to which they returned. 'And it sat in regular sessions of its own. 'In
effect, it was Henry's legal headquarters.' What was starting to emerge here
was a body of judges, as we would recognise them now, serving both at
Westminster and in the shire circuits and building up a pool of knowledge
and expertise. It's easy to imagine them getting together between sessions
or just over a meal, swapping stories, debating the finer points of legal
practice, and using this shared experience to shape their subsequent
rulings. 'Accounts of cases began to be written down, 'allowing them to be
consulted, 'and the first books about English law started to appear.' The
Justices were establishing a method that remains a defining characteristic
of the English legal system. They were making judgments based on
precedent. Common law wasn't just about consistency across the realm, it
was also about being consistent with previous decisions. 'The Westminster
Court mainly dealt with civil litigation. 'They would hear your suit more
quickly than a shire court... 'for a fee. 'Making money seems to have been
an important aspect of Henry's reforms, 'a point I raised with legal historian
Paul Brand.' How much is revenue-raising as opposed to making the country
safer an underlining priority for Henry? Clearly he was not unaware of the
fact that Justices brought in money. It would be wrong to suppose that he
didn't have that in mind at all in what he did, but there were rather more
profitable things for a king to do than ensuring justice. He did not charge
significantly large amounts for access to royal courts. So he ensured that
royal justice was affordable? He ensured that royal justice was affordable to

the normal man in the street. So he had very high ideals as to his role, I
suppose? He, as it were, reorientates the English monarchy. He retools it
as... an institution deserving the support of the King's subjects because it
provides justice for them. 'And that justice was meant to be consistent
across society. 'The common law didn't discriminate, at least in theory,
'between the rich and poor.' But one important group remained safely
beyond the grasp of the common law. Henry's attempts to deal with that
problem would come to define his reign and reach a head here in
Canterbury. 'That problem was the clergy. 'They enjoyed their own legal
system, Canon Law. 'If you were in holy orders, 'you were subject solely to
the jurisdiction of the Church. 'The Crown couldn't touch you. 'No matter
how serious the crime, the cleric would merely be ordered 'by his bishop to
purge his sin, usually through penance, 'whereas a layman might be
mutilated or hanged. 'That is, unless they claimed "benefit of clergy." '
Benefit of clergy provided perhaps the biggest loophole in English legal
history. On the flimsiest of grounds, you could claim to be a cleric, thus
removing your sanctified soul from the grasp of the secular authorities.
Eventually, the benefit could be claimed merely by reciting the first verse of
Psalm 51. Have mercy upon me, O God, according to thy loving kindness.
According unto the multitude of thy tender mercies, blot out my
transgressions." 'The inability of royal justice to prosecute criminous clerics
'represented perhaps the most serious challenge 'to Henry's authority. 'So
when he appointed his close friend Thomas Becket 'as Archbishop of
Canterbury, 'he did so on the expectation that under Becket's leadership,
'the Church would conform and cooperate.' 'But Becket went native. 'Henry
was NOT amused.' Even when working full-time as a priest, I had little
sympathy for Becket and his stance. To defend the independence and rights
of the Church from secular intrusion is one thing, to protect literate
murderers, robbers and rapists from the full rigours of the law is quite
another. The clerical child abuse scandals of recent years are Becket's
legacy. I can well understand how Henry II got more than a little

exasperated at the pig-headed obduracy of his archbishop, and how he

demonstrated that frustration in an intemperate outburst to the effect of,
Who will rid me of this turbulent priest?" 'What happened next 'is one of the
most famous stories of Medieval England.' On the night of 29th December,
1170, the story goes Becket was at evening prayer here in Canterbury
Cathedral, when he was confronted by four knights loyal to the King. They
struck him down with repeated blows from their swords, and they were so
ferocious that they sliced off the crown of his head, so that, in the words of
an eyewitness, The blood, white with the brain, and the brain, no less red
from the blood, dyed the floor of the cathedral." 'It's unlikely Henry actually
ordered Becket's murder. 'His archbishop's demise undermined all that the
king wanted, 'as public opinion rallied round the Church. 'Becket became a
martyr, and a repentant Henry 'felt he could no longer touch the issue of
criminous clerics.' 'Although the Church may have remained off-limits,
'Henry II had given the rest of his kingdom a lasting legacy.' Henry and his
advisers didn't reinvent law in England, but they certainly gave it order,
cohesion and a degree of uniformity unmatched ANYWHERE in Europe.
Now England didn't just have laws, it had a legal system. A king born in
France had laid the stable foundation upon which today's English law could
be built. 'Henry II understood royal authority was best maintained in
England, 'not through the arbitrary exercise of power, 'but by being seen as
the guarantor of justice. 'But perhaps even he underestimated just how
quickly the English 'would come to see justice not as the King's gift, but as
THEIR right. 'It was a lesson that his son John would learn 'in a landmark
moment in English history.' 'On 15th June, 1215, 'King John rode from
Windsor Castle to meet his barons, 'who had pitched their camp by the
water meadows at Runnymede.' On that June morning, nearly 800 years
ago, these meadows would have been filled with thousands of people...
soldiers, knights, barons, bishops, the King himself... all awaiting something
unprecedented in English history. The king was about to put his seal on a
document that had been forced upon him by his subjects. 'John's disastrous

French wars, his repeated demands for money, 'and his abuse of royal
courts to levy fines, 'had alienated many of England's powerful barons.
'They had rebelled, forcing the King to negotiate. 'The result was written
down 'in the most famous legal document in history... 'the Great Charter,
Magna Carta. 'Its 63 clauses cover a wide range of royal concessions, 'but
Magna Carta was more than just a long list 'of legal and economic demands.
'It was a groundbreaking recognition that the English people had rights.'
Much of Magna Carta may strike the modern reader as impenetrable,
obscure, and sometimes even trivial. But buried among the clauses dealing
with fish weirs and measures of ale are two of enduring significance. No
free man shall be seized or imprisoned, or stripped of his rights or
possessions, or outlawed or exiled, or deprived of his standing in any other
way. Nor will we proceed with force against him, or send others to do so,
except by the lawful judgment of his equals or by the law of the land. And,
"To no-one will we sell, to no-one deny or delay right or justice." 'These few
lines have been hailed 'as the origin of fundamental civil liberties, 'including
trial by jury. 'An agreement between the King and the barons 'had somehow
ended up guaranteeing the liberty of wider society. 'To find out why, I went
to meet an expert on Magna Carta.' What the baronial opposition were
doing to King John was clearly deeply controversial. There were those who
backed it, there were those who did not. And there was much to play for.
John knew that, the baronial opponents knew that. The loyalty of the lower
free-classes... knights, sergeants and others - could not be taken for
granted. These were constituencies that had to be mobilised, won over.
'Magna Carta wasn't just a legal document, 'it was an exercise in medieval
public relations.' Copies were almost certainly sent out to the shire courts of
England, and read out before the earls, the barons, sergeants, the freemen.
This reflects the efforts by the baronial opposition to broadcast the details
and the nature of the settlement. 'However, while the provisions of Magna
Carta 'were being promulgated throughout the kingdom, 'the settlement
between John and the barons was falling apart. 'Within months, they were

hard at battle in strategic Rochester.' John personally directed the siege of

Rochester Castle. Its eventual surrender in November was one of the few
glorious moments for John in his troubled reign. Not that he had long to
savour it. Dysentery killed him the following year. But Magna Carta lived on.
'Magna Carta had been disseminated far too widely across the country 'to
be ignored or forgotten. 'Of what are believed to be some 40 copies
originally distributed, 'four still survive, including the one sent to Lincoln.'
At first glance, it's not much to look at. But it's had perhaps more
influence... in English and world history than any other document. 'On two
occasions of the greatest historical moment, 'Magna Carta would become a
clarion call against overbearing government. 'Preceding the English Civil
War, it was cited by Parliamentarians 'contesting the authority of Charles I.
'In the 18th century, 'it inspired the fathers of the American Revolution, 'and
provided the basis for the United States Constitution.' This is probably the
most important extant document in our history. '1215, the year Magna Carta
was signed, 'was perhaps the most momentous in English legal history. 'It
was the year the law outgrew not only the King, 'but also, the other great
power in the land.' The Church may have enjoyed its own separate legal
system, canon law, but as we've seen, it also maintained a strong foothold in
the common law, because only a cleric could preside over trials by ordeal. In
1215, that all changed for reasons that had nothing to do with events in
England. '900 miles away in Italy, 'Pope Innocent III banned priests 'from
blessing ordeals by water and fire 'on the basis that God's judgment 'wasn't
at the beck and call of presumptuous mortals. 'Following the withdrawal of
the Church from the legal process, 'England had to decide whether to follow
much of Europe 'and adopt methods of proof dating back to Roman law.'
English law was at a crossroads. It could have followed the route favoured
on the Continent, where the authorities would try to extract confessions by
torture if necessary - the inquisitorial system. Instead, England continued
along her own exceptional path towards trial by jury. 'Over the centuries,
the role of "the man in the street" 'had become steadily entrenched in

English legal practice. 'From the people who might back up your oath in
Anglo-Saxon times, 'to Henry II's juries of presentment who indicted local
criminals.' 'These juries were cheap. They tapped into local knowledge, 'and
it was both logical and common sense 'that they should be adapted to
replace ordeals in trials.' Now it was no longer the Almighty, but a rather
less exotic tribunal that would determine the outcome. The judge would ask
the members of the jury, when declaring whether the accused were guilty or
not, to give a truthful answer. In the Anglo-French of the time - aver-de. Our
"verdict". 'The first known English jury trial took place in 1220. 'A woman
condemned for murder, called Alice, 'accused five others of criminality.
'They submitted to the judgment of their neighbours. 'In the phrase of the
time, ' "Putting themselves for good and ill upon a verdict." 'These
neighbours decided that one was lawful, 'but that four were thieves. 'And
they were sent to the noose. 'By the late 13th century, 'juries were a familiar
part of English law. 'Unlike modern ones, they didn't weigh evidence, 'but
came to a decision based on their own knowledge or belief. 'For ordinary
people to have such power in a society 'that was in other respects full of
inequalities was revolutionary.' Your peers had been given an authority that
had previously been the preserve of God. Your guilt was now decided in
public by members OF the public, independent of the state. The jury - the
institution that most defines English justice... truly begins here. 'By the end
of the 13th century, we can see a number 'of the elements of English law
that remain with us today. 'A unified set of laws across the country, the jury,
'the structure of local and central courts, 'a body of judges who share and
exchange 'their knowledge and experience, 'and one other important part of
our legal system has begun to emerge.' Major civil suits often ended up
being heard at Westminster, irrespective of where they'd originated. But
suppose you live in a distant shire. Travelling to London to plead your own
case will certainly require lots of time and money, and dealing with an
expert Justice may be well beyond your capacity. So why not turn to a new
kind of practitioner who's come on the scene? Someone like me - a

professional lawyer. 'In fact, then, as now, 'there were two branches of the
legal profession.' 'You would appoint an attorney 'to act as your agent and
manage your case. 'The word comes from the Old French atorne - "to
appoint". 'But the actual pleading of your case in court 'would be done by a
sergeant. 'Attorneys and sergeants were the equivalent of today's 'solicitors
and barristers.' 'And by the later 13th century, 'there were around 30
sergeants practising in the courts, 'and 200 attorneys.' 'Business was
booming, 'and it was transforming an important part of the capital.' Here's
the famous Temple Church, built by the Knights Templar in the last years of
Henry II's reign, and preserved to this day as the chapel of Inner and
Middle Temple... two of the four Inns of Court that have existed in this area
since the Middle Ages. 'The Inns of Court, 'which also include Gray's Inn
and Lincoln's Inn, 'have been training schools for lawyers 'since at least the
14th century.' 'It was here that my predecessors were lodged, 'and learned
legal procedures and precedents.' 'And down the centuries, 'the Inns have
continued to support and educate barristers.' The ceremony for York Hall
this evening will commence at 1800. 'One of the Inns of Court's most
important responsibilities 'is the formal recognition of qualified barristers.
'In a ceremony I remember well - the call to the Bar.' In the name of the
Masters of the Bench, I call you to the degree of the utter Bar. 'The Bar was
the barrier which traditionally separated the public 'from the working area
of a courtroom. 'Today, men and a women from a whole host of countries
'come here to qualify from the very same institutions 'where England's first
lawyers trained 'more than six centuries ago.' English common law has
become a model for legal systems all over the world. The secret of its
survival in England is that it was never imposed upon the nation. Rather, it
grew and evolved through many centuries. The common law runs through
our national story like veins through a body. It has proved both robust and
adaptable, and it's had to be. 'As it moved beyond its medieval origins, 'the
common law would face a whole new set of challenges.' Next time, how the
champions of the common law battled tyranny in the lead-up to the English

Civil War... signed the death warrant of a king... triggered the end of the
transatlantic slave trade, and secured the liberties we still enjoy today.
Strange Case of the Law Episode 2
At midnight on May 11th, 1640, a mob attacked Lambeth Palace,
protesting against the suspension of Parliament by the King. They were led
there by a man beating a drum. He was called John Archer. His is a name
that history should remember. John Archer was arrested for banging a drum
in a war-like manner," which was deemed nothing short of levying war
against the King. Treason. Archer was sent to the Tower of London, to see if
he could be induced to give up the names of what the authorities regarded
as his fellow conspirators. To secure his confession, he was put to the rack.
The sound would have almost been as frightening as the pain, as the body
was torn apart with the rips, the tears, and the pops. John Archer's torture
was as useless as it was barbarous. If he had anything to confess, he did not
reveal it. He was tried and executed shortly after. The state plucked John
Archer off the street, He was far from being the first man to be legally
tortured in England, but he was the last. No warrant for torture would ever
be issued in England again. The end of torture came about as a result of one
of the greatest battles between arbitrary state power and the law, which
came to a head during the Civil War. In this programme, I am going to tell
the story of the courageous men who used the law to challenge tyranny. I'll
walk in the footsteps of the barrister who risked assassination, and eternal
damnation, to put the King of England on trial for his crimes against the
people. I'll find out why a pillar of the establishment delivered a radical
judgement that rocked the slave trade, triggering its ultimate abolition. And
I'll venture into the 17th-century equivalent of Guantanamo Bay, where one
of England's greatest civil libertarians was banished. These very different
men helped forge the liberties that we enjoy to this day. One of the most
satisfying, and challenging, aspects of my job as a criminal defence
barrister is its variety. In my career, I have defended everyone from people

accused of shoplifting to those on trial for murder. But some things remain
constant. Any trial has to be held in a court open to the public, before an
independent jury, and by a judge who is pledged to do justice, beholden to
no master other than the law." There is one set of laws that apply to
England and Wales, and apply to everyone in those countries. But in the
years leading up to the Civil War, England had a two-tier legal system. The
common law, and a system under the royal prerogative, which allowed
torture, and enabled the King to do as he saw fit. Its court was held in the
now-notorious Star Chamber. Near where I am standing was the site of the
Court of Star Chamber. Today, a by-word for justice and oppression. But in
its inception, and throughout most of its history, it represented precisely the
opposite. Star Chamber came to the fore in Tudor England... a country in
turmoil. Nobles run their territories like Mafia bosses. Disputes can end in
what we'd call "contract killings". The nobility seem beyond justice. They
can intimidate juries and bribe judges. So the Crown develops a court
outside the normal common law. It has powers that can tame the English
Mafia. No amount of cash could buy this court. Soon, the previously
untouchable nobles found themselves in the dock. It may look like an upmarket country pub, but this was where England's most powerful men
clashed. Justice was dispensed under this ceiling of gold stars, from which
the court gets its name... Star Chamber. It had no jury that could be bribed
or intimidated by the mighty. Instead, errant aristocrats were interrogated,
and judged, by members of the government itself. A bit like being tried by
Kenneth Clarke. The most accomplished lawyer to practise in Star Chamber
was Edward Coke. I went to see a Cambridge historian who has studied this
man, whose influence became second only to the King's. Coke's been
described as one of the most disagreeable people in English history. Is that
a fair assessment of his personality? It's a big claim, isn't it? But he's
certainly up there. I think he must have been someone that almost
everybody found overbearing. Even his fellow judges. He just never brooked
an argument, as far as I can see, with anybody. He was the state prosecutor

for 13 years. He was the chief prosecutor of the Catholic conspirators,

above all, the Gunpowder Plotters. So he is party to the use of torture? Yes,
he is party to the use of torture. His view would certainly be that torture
should only be used against those who had admitted their guilt, in order to
get information about co-conspirators. But when the King sided with Coke's
arch-rival, Francis Bacon, a tempest was brewing. Bacon steered the King
into ever more frequent clashes with Coke, culminating in his sacking as
Chief Justice. Coke begins consistently to obstruct the King's will, to be
pursuing matters of law which irritate the King. Then he becomes a very
prominent figure in the opposition to Charles I in the 1620s. So he goes
from being a very establishment figure to becoming a very antiestablishment figure. Everything Coke does is wholehearted. His judicial
career was over. Now, Edward Coke would reinvent himself as champion of
the common law. The regime of King Charles I was starting to be seen as a
tyranny. The King used the Court of Star Chamber to punish those who
opposed his policies, to Coke's horror. This once-honourable court was
being corrupted. Star Chamber, once a court to control lawless nobles,
became a threat to anyone who upset Charles. Military failures had
depleted the King's coffers. In 1627, he demanded that Parliament impose
crippling new taxes to pay for weapons and soldiers. Parliament refused.
Charles resorted to other means. His plan turned out to be explosive. In
effect, he'd let his army invade England. Thousands of soldiers were forcibly
garrisoned in people's homes across the country. The King's troops could
just roll on to your land, uninvited. To add insult to injury, you were then
expected to foot the bill for their food and lodging. National fury was
building, because, as Edward Coke famously commented, The house of an
Englishman is to him as his castle. The King decided to ask his richer
subjects for what he called a "loan". But there was little hope of repayment,
and if you said no, you risked being summonsed before Star Chamber. Five
of Charles' knights were imprisoned without trial for refusing to pay. They
resorted to the courts to challenge their detention. This wasn't so much a

dispute about money as a direct attempt by the knights to stand up to the

King. They were saying to Charles, Get your tanks off our lawn. The jailers
refused to release the prisoners, because they were there on the King's
authority. The most senior judges were now asked, did England's common
law allow the King to arbitrarily arrest his subjects? Eventually, the judges
buckled. The King could imprison the knights without charge. He WAS the
law. Round one to the King, but the battle was not over yet. If the judges
weren't prepared to stand up to the King, would Parliament? The bruised
opposition regrouped around an unlikely hero... the 76-year-old veteran of
the Star Chamber, Edward Coke. The man who had once prosecuted traitors
was now turning the full might of his legal mind against the King himself.
The session was known as the "one-issue Parliament", and the liberty of all
Englishmen was what was at stake. Both sides claimed to be defending the
status quo, and invoked history in their aid. The Commons made their
stance on Magna Carta, while the King said he was loyal to what he called,
the old laws and customs of the realm." The King's position was to fall back
on his belief that he ruled by divine right. He could do as he pleased. He
tried to block the parliamentarians by forbidding them to discuss matters of
state. Some MPs were in tears and unable to speak, terrified the King was
going to shut down Parliament. Then, Coke spoke. His fearless oratory
united the House. As one MP said, It was as when one good hound recovers
the scent. The rest come in with a full cry. A baying House of Commons
scented royal blood. Charles wanted money, but Coke would demand a high
price. He would force the King to sign a royal restraining order. In exchange
for money, the King would enshrine in law rights for all Englishmen. I'm
here in the parliamentary archives to see a document devised and drafted
largely by Edward Coke, and whose significance to our constitutional
history is second only, perhaps, to that of Magna Carta itself. It is the
Petition of Right. This document sat somewhere between a list of grievances
and an actual bill of rights. So, here it is, the Petition of Right itself. Now, it
may not look a great deal, it's a piece of vellum with a lot of rather nicely

written words on them, but, of course, its significance is far more than just
the document we have before us. It's only one page, but it helped change
the course of history. It's hardly a humble petition, but that's how it's
phrased. Humbly do the Commons point out to the King the law of the land,
what had always been the civil liberties, the liberties of the subject,
enshrined by parliamentary statute." And then they go on to the meat of the
complaint, that despite all these enactments in the past, things have gone
horribly wrong, and in particular, diverse of His Majesty's subjects had of
late been imprisoned, and when they were brought before His Majesty's
courts to challenge the conditions of their detention, they were denied
justice, and they were sent back to prison without cause." Edward Coke was
clear this would never happen again, insisting, "that no man hereafter be
compelled to pay taxes without parliamentary authority, or be imprisoned
without cause." Any individual who was imprisoned could demand that their
jailer legally justify their actions. This concept, central to our liberty, is
known as habeas corpus. It was a principle whose power would grow
immensely over subsequent decades. Coke's ideals were even appropriated
for the American constitution, the Petition of Rights' offspring, as it were.
This is one of those special documents that had a life of its own. This is a
document that is not just significant in 17th-century England, this is a
document that is one of the foundation documents of civil liberties. It was as
if Edward Coke had joined Amnesty, the Royal Prosecutor had become
Parliament's champion of liberty. Edward Coke had brought all Englishmen
liberties by tempting Charles with the promise of cash. A king's ransom?
Across England, the agreement of Charles to this document was welcomed
by the ringing of church bells and the lighting of bonfires. A rare event for a
parliamentary measure. But the celebrations had barely died down before
Charles was plotting his next move. Once he had secured his cash, the King
bypassed the Petition of Right and dissolved Parliament. He would rule
alone, enforcing his will through the court of Star Chamber. The Star
Chamber judges resorted to an alternative form of taxation, by fining the

wealthy on frivolous charges. And Charles, a man who saw opposition

everywhere, could also use Star Chamber, and its savage sentences, to
clamp down on religious, as well as political, dissent. Under this ceiling
studded with stars, disfiguring and degrading punishments were imposed
by cruelly imaginative judges, the creatures of the King. The victims of such
treatment were those bold or rash enough openly to oppose Charles'
arbitrary rule. Some had their noses slit, others, their ears cut off. Public
displays of Royal displeasure. Those reluctant to incriminate themselves, or
others, might be persuaded to change their minds by a trip to the tower. It
was home to the rack. Bridget Clifford, from the Royal Armouries, revealed
the tower's dark secret. For the poor unfortunates upon which this was
used, what would have been the procedure? They would be brought to be
shown the rack first, and if that didn't elicit a confession, or more
information from you, then you would be set upon it. The ropes would be
applied to your ankles and to your wrists, we think. And then it would be
slowly tightened by rotating the drum. There would have been unpleasant
sounds if you were doing this to somebody. I suspect also the machinery
may have been a little theatrical too. The whole thing is there to increase
the sense of terror, so it would have been a particularly unpleasant
experience. One master of the rack was said to have boasted of racking a
prisoner one good foot longer than even God made him. What allegations or
offences would this have been applied to? Mainly treason. This is for
threatening the status quo, or for threatening the Royal person. Now, what
constitutes that threat can be a physical threat, it can also be the fact that
your religion is seen to be standing against that that the country approves
of at the time, depending on who's on the throne. Protestants in a Catholic
world, or Catholics in a Protestant world. Four centuries ago, the law itself
would be put on the rack. At one end was the King's law, at the other, the
common law. Which system would win, and which would snap? For over a
decade, Parliament's doors were locked, the King ruled alone and supreme.
These dark days remained until a costly religious war with the Scots

drained the royal coffers. Finally, in 1640, Charles was forced to recall
Parliament to get money. Now back in the game, the MPs aimed to destroy
the hated institutions of Charles' rule. Torture warrants were made illegal,
no attempt to revive them has ever been made since. And victims of Star
Chamber, those who had lost money, liberty, or ears, called on Parliament to
rein in the symbol of royal absolutism. But they didn't just rein it in. On July
5th, 1641, Charles was forced to sign Star Chamber out of existence. Its
inquisitorial powers, its gruesome punishments were swept away forever.
The common law, and its liberties, had won. Star Chamber was dismantled
as a court, and later as a room. Now all that remains is its name and its
famous ceiling. Its stars now shine down on a reception room in a hotel on
the Wirral. But despite the abolition of Star Chamber, Parliament and
Charles were still on a collision course. In 1642, the crash came. The
English Civil War. Though there were many causes of the war, one was
Charles' refusal to accept that he did not have a divine right to dictate the
law of the land. But enough of his subjects still believed he did. It split the
country in two. In the carnage that followed, over 80,000 soldiers died on
the battlefield. By the end of the war, Parliament had emerged triumphant.
The Civil War, like many of the era's seismic upheavals, was borne out of
legal disputes. The parliamentarians now decided to use the courts to
ensure Charles would never be a problem to anyone again. But what mere
subject would have the bravery to prosecute a divinely anointed king?
Criminal barristers get their cases by being instructed by solicitors. They
get sent one of these, it's called a brief. It's a set of papers, instructions,
predominantly papers relating to the case, all quaintly tied up in pink
ribbon. As one eagerly opens that ribbon, and read the instructions that
you've been given, you discover what sort of case this is. Will it bring you
fame, the respect of your peers, or be one of the darker cases, involving the
defence of a paedophile, a terrorist, or a serial rapist? Barristers can't pick
and choose which case they take on. We call this the cab rank rule, and no
matter how unsavoury the individuals may be in the cab rank queue, you

have to take them on their legal journey. But this system didn't exist in
January 1649. Back then, one brief was emptying legal London. Barristers
fled in droves. The instructions were straightforward enough... to prepare
and prosecute the charge against the King. But taking on this brief risked
more than just public disapproval, it risked imminent assassination, and
even eternal damnation. This brief was delivered to one of the few
barristers brave enough to remain in London. His name, John Cook. And this
John Cook, no relation to Edward, had less than ten days to prepare his
case. At its heart, this was a war crimes' trial. Charles was being held
responsible for the atrocities committed by his army. Evidence abounded,
but John Cook had a problem... in England, the source of the law is the
King. How could the source of the law be prosecuted by the law? Former
war crimes judge Geoffrey Robertson believes John Cook was the first
barrister in history to prosecute tyranny. I put to him a conundrum of my
own. The Civil War is now over, Charles I has proved to be particularly
duplicitous, and they put him on trial. Why didn't he just have an accident,
fall down the stairs, or get accidentally shot somewhere? You've got to
understand these people, these puritans. They believed that all they did had
to be in the sight of God. They believed that they were only saved by virtue
of their ability to justify everything they did. And so they determined to put
him on as fair a trial as the times would allow. And to do that in a way in
which God would speak towards, in the course of the trial. They had no
clear determination that he'd be executed at the beginning of the trial. It
was a process which, like everything else, would be conducted by God. Now
England, God, and Charles awaited the most important trial in English
history. But had John Cook solved that seemingly impossible legal puzzle?
All cases in England are carried out in the name of the King, Rex versus the
defendant. Could Rex be against Rex? Cook's masterstroke was to redefine
the terms of the argument. The King, he said, was not an individual, but an
office, and the holder of that office had to govern by, and according to, the
laws of the land and not otherwise. Ingenious. But would John Cook's

argument be sustained in court? Charles Stuart would be tried in the

greatest court in the land, Westminster Hall. But such an important prisoner
could not be brought through the crowds. It risked rescue by his followers,
or assassination by his enemies. On January 20th, 1649, a solution was
found. The funeral barge was making its slow way along the Thames, it
contained not a corpse, but a king. It was en route to the court via a river
entrance. Charles was being brought in through the back door. Legend
claims the King's journey into these legally unexplored waters was observed
by England's new leader. Oliver Cromwell stood watching, white as the wall.
He turned. My masters, he is come, he is come, and now we shall be doing
that great work that the nation will be full of. Wooden partitions held back
the crowds, or failing that, armed guards. Up there, 68 judges sat,
transfixed. To avoid assassination, the presiding judge wore a steel-lined,
bullet-proof, beaver skin hat. Thousands of eyes were fixed on the
prosecuting barrister, John Cook, here, centre stage. As Cook addressed the
court, the King poked him in the back with his cane. Had Cook yielded to
the King's request to stop, his legal authority would be gone. Cook boldly
continued. The King struck him harder with the cane. The tip fell off, Cook
declined to pick it up, and the King was forced to kneel to do so. The
symbolism was obvious and ominous... the King knelt before the law, the
source of the law had become subject to the law. The King was read the
charge. Charles paused and asked, I would know by what power I am called
hither?" He told the court, A king cannot be tried by any superior
jurisdiction on Earth." Saddam, Milosevic sound exactly like Charles I. By
what power do you put me on trial?" Undermining the court's authority,
Charles repeatedly declined to plead. A refusal to plead, as John Cook knew,
was tantamount to a full confession. Charles's fate was in the hands of the
judges. I think it was touch and go, and I think that he might have avoided
the death sentence had he not made the mistake by talking to his guards.
And he told his guards that he felt no sorrow at all, no regrets, for the loss
of life in the Civil Wars. One in every ten Englishmen had been killed in

these wars, which had been started by the King, and he told his guards he
didn't feel anything. And that message got back to Cook, it got back to the
King's judges, who realised that this was a man who had absolutely no
regrets about killing Englishmen, and so that is why, in effect, the judges, on
the whole, were turned against him. Finally, Charles Stuart was condemned
to death. BELLS TOLL This document is unique in our history. The death
warrant of a king, issued by a court. Here are the 59 soldiers, Aldermen,
judges, who signed away the life of a king. Here we have John Bradshaw, he
of the bullet-proof hat, and here, Oliver Cromwell. Charles I was marched
through Banqueting House under a Rubens painting celebrating the divine
right of kings. A painting the King had commissioned. Unlike today,
Whitehall in 1649 was narrow, and this place was chosen for the execution
of the King to thwart any last-ditch attempts by royalist cavalry to rescue
him. Below me, and in front of a large throng of people, King Charles I
stepped through a window, onto a scaffold, to face his fate. In the space of
1,000 years, the law devolved from being a rough code to settle local
disputes in Anglo-Saxon England, into an independent institution, so
powerful that it was capable of killing the King of England. Charles I and
the monarchy had been swept aside. But in 1649, there was a fear that
England had simply swapped one tyrannical regime for another. In an
attempt to impose order on the chaos unleashed by the Civil War, Oliver
Cromwell himself was stamping down on dissenters, whether religious
groups like the Ranters, or political movements, like the Levellers. Radical
groups could no longer look to Parliament to uphold the law in the cause of
liberty. Individuals would have to deploy the law themselves. And none more
so than the leading leveller John Lilburne. John Lilburne believed that the
time had now come for all the men of England to claim their rights.
Freedom of worship and universal suffrage. These liberties, he believed,
were not bestowed upon them by government or by the law, they were the
birthright of all Englishmen. Lilburne exploited the power of the printing
press to propagate his views and energise his supporters. His secretly

published

diatribes

were

passionate,

rousing,

and

seditious.

And

publications such as this were distributed up-and-down the country by a

network of his sympathisers. Freedom of speech was limited in Lilburne's
day. Lilburne's words managed to infuriate every administration under
which he lived. They would repeatedly lock him up to shut him up. But
Lilburne had a crucial legal weapon on his side. One enshrined in the
Petition of Right. There had been many ways by which people had tried to
escape imprisonment. Filing through bars, climbing over walls, digging
tunnels, but none has the simple elegance of using a small piece of paper to
fling open the doors. This is the magic of habeas corpus. John Lilburn
thought this piece of paper could be the key to his freedom. Here's how
habeas corpus works in practice... a document known as a writ is delivered
to the jailer saying, we direct you to have the body, habeas corpus in Latin,
of say, Harry Potter, before this court, along with the reason for detention. If
the jailer cannot satisfy the court that the reason is lawful, then Harry
Potter walks free. Habeas corpus is a remedy against arbitrary arrest, and
unlawful imprisonment. Lilburne employed habeas corpus more often than
anyone in history. The results were more symbolic than actual. He was able
to highlight his predicament and embarrass the authorities, yet he'd still be
sent back to jail. If anything showed how the law was being subverted, it
was this. The authorities knew they couldn't get away with it forever. In
March 1649, Lilburne's latest pamphlet attacking Cromwell's regime got
him arrested. While Lilburne was being held, Parliament created a new law.
It made it treasonable to call the government tyrannical, or unlawful in
print. A mutiny in Oxfordshire brought things to a head. Lilburne's
pamphlets were blamed for goading the troops to revolt. Cromwell put
Lilburne on trial for publishing seditious pamphlets, under this convenient
new treason law. Cromwell left for Ireland, safe in the knowledge that
Lilburne was all but a dead man. The evidence against Lilburne was very
strong. This time, he had been lawfully detained, charged, and put on trial,
and in those circumstances, habeas corpus was both irrelevant and

impotent. Worse still, Lilburne was going to defend himself. And, as we

lawyers like to say, he who represents himself has a fool for a client. But
John Lilburne was no fool. He was perhaps the greatest amateur advocate
ever to set foot in an English court. I met historian Ted Vallance to find out
more about how Lilburne fought for his life. His courtroom performance is
incredible, in terms of the amount of legal citations that he uses in his
speeches. So he really wows the jury as well with his legal knowledge. Even
though he keeps requesting legal counsel, there's this, kind of, double play
here. He says, "I need legal help" all the time, yet he's quoting verbatim
from Coke. And from various other authorities at the same time. And what
he does really nicely, all the way through the trial, is chip away at the
court's standing, he suggests this isn't really a legitimate court. He does
things like refer to the president of the court, Lord President Bradshaw, just
as Mr Bradshaw, just to pull down those people who are accusing him, take
them down a peg or two. Some extraordinary things happened during the
trial, one I think involved a chamber pot. He keeps asking to have a toilet
break, he keeps saying he's been standing for a long time at the bar, and he
needs to go and relieve himself. And the court is, sort of, fed up with these
filibustering tactics, and say, no, you can't go to the lavatory, we've got to
get on with our proceedings, it's a very important trial. And he says, well, if
you won't let me have a toilet break, then at least let me have a chamber
pot that I can use, and they do actually bring in a chamber pot for him to
actually use within the courtroom. And he does that in front of the jury? Yes,
yes. Lilburne had mounted a defence few barristers could better today. How
would the jury react? Finally, the foreman announced him not guilty, his life
was saved, and the cheers from his supporters lasted over half an hour. At
his trial, Lilburne won important rights... the right to a vigorous self
defence, to challenge seeming unfairness in court procedures, and to take
comfort breaks. Lilburne had woven the law into a safety net that ensured
Parliament couldn't silence him. Now, just as Charles I had used the Star
Chamber, Cromwell needed to find a way of dealing with Lilburne outside

the normal parameters of the legal system. The next time Lilburne stepped
out of line, Cromwell would have something up his sleeve. Before Lilburne
could issue a writ of habeas corpus, he was shipped across the English
Channel, beyond the reach of the law. On this offshore military outpost, the
normal protections of English law were almost impossible to employ. Jersey
was Oliver Cromwell's Guantanamo Bay. Lilburne's extraordinary rendition
took him from the relative comfort of the tower to here, Mont Orgueil
Castle. Cromwell wasn't prepared to take any more chances with a man like
John Lilburne and despatched him here to Jersey. Isolated on an island, out
of sight and out of mind, he was beyond the effective reach of habeas
corpus. Castle curator Doug Ford gave me a much warmer welcome than
Lilburne received. So, this is Lilburne's cell? This is Lilburne's cell, yes. It's
his bedchamber from the 1640s through to the 1660s. This is where
important prisoners were lodged. In the summer, it's still quite chilly and I
notice the walls look and feel damp. Yes. Yes, we're very exposed up here at
the top of the cliff. So, what's the prospect he would have from up here?
Well, from here, you can see straight over to the east. There's Normandy.
On the horizon there? On the horizon, yes. Some prospect! Indeed.
'Normandy was not just on the horizon, it was in the language. 'The locals
spoke not English, but Norman French. 'It was solitary confinement by
language barrier. 'A verbal island that prevented Freeborn John 'smuggling
legal appeals out.' Lilburne was offered his freedom if he would stop
agitating against the government. But being Lilburne, he would not back
down. A year's imprisonment in the conditions of this castle, however, if it
couldn't destroy his spirit, left him a largely broken man. The damage to his
health proved mortal. John Lilburne died aged 42. But his legacy continued.
Jersey was an island-sized loophole in the petition of right. All had access to
habeas corpus, except in places such as this. Whilst that might suit the
government, voices of discontent were muttering on the backbenches.
Increasingly, MPs were showing disquiet about this legal sleight of hand.
And how the issue was resolved makes one of the most peculiar

parliamentary tales. A habeas corpus bill was drawn up for prevention of

imprisonment beyond the seas. No-one would be placed in Lilburne's legal
limbo again. But each time the bill looked likely to win, the House of Lords
voted against it. It was hit back and forth. Now it faced yet another Lords
defeat. The opposing sides each appointed a lord as a teller. Lord Norris for
the noes and Lord Grey for the ayes. The story goes that Lord Norris, a man
subject to the vapours, was easily distracted. A particularly fat lord came by
to be counted and Grey said, "Ten!" This rather feeble jest soon became
very serious. Lord Norris failed to see either the joke or that his opponent
had added nine extra votes. The bill went through by a majority of two. Now
no-one could be imprisoned beyond the seas. Nowhere in the Empire was
beyond the reach of habeas corpus. A fact that would later have huge,
rather unforeseen consequences. And all thanks to one... fat... lord. In 2004,
the US Supreme Court ruled that detention in Guantanamo Bay was illegal
because it infringed the Habeas Corpus Act. America still looks to preindependence English law for precedent. Back in 17th-Century England,
when Oliver Cromwell died, the regime he founded would soon collapse.
The power vacuum was swiftly filled as the heir of Charles I was restored to
the throne. Having had Cromwell's head placed on a stake and John Cook,
the man who'd prosecuted his father, hung, drawn and quartered, Charles II
resumed the Stuarts' favourite family pastime... religious persecution. A
new law targeted religions outside the Church of England. It severely
restricted all non-conformist worship. The Conventicle Act banned any
religious assembly of more than five non-Anglicans. Thousands were
prosecuted under the act. Catholics, Presbyterians, Quakers. And those
found guilty were subject to imprisonment or even transportation. But that
didn't stop two gutsy Quakers defying the law. William Mead and William
Penn had not just broken the rule of five. They'd been addressing a crowd of
hundreds when they were arrested. Personally, I should love to have
defended them. It was outrageous legislation. But it would have been an
uphill struggle. In law, they were banged to rights. But although they were

guilty by the letter of the law, many Englishmen felt the law was morally
wrong. And luckily for the defendants, four of them were on the jury. These
four jurymen, led by a merchant called Edward Bushel, bravely declined to
find the defendants guilty of a criminal offence. The furious judge called
Bushel impudent and threatened to put his mark on him. But Bushel held
firm and soon the remainder of the jury followed suit. Their verdict was not
guilty. When the jury failed to bring in the right verdict, the judge shut them
up without meat or drink, fire or tobacco, to reconsider their decision. Or to
starve. The conditions in Newgate Jail were so bad that one in ten prisoners
died there. But habeas corpus was waiting to strike again. Edward Bushel
managed to get a writ heard before Chief Justice Vaughan. The case had
become infamous. And Westminster Hall was hanging on Vaughan's
decision. What happened next would have a lasting legal impact. I asked the
current Lord Chief Justice, the highest judge in the land, about Vaughan's
ruling. He declared the jury should return verdicts in accordance with their
conscience and that no juror should ever be punished for the verdict he
reached. How significant was the case of Edward Bushel? It was absolutely
crucial. This was a remarkable moment in our history. Chief Justice Vaughan
made it absolutely plain that that was the end of any possibility of a juryman
being punished for his verdict. And it never happened again. And never has.
The jury were finally freed. But only after spending several weeks in
England's most notorious jail. Today, juries are free to give their verdict
without recrimination, no matter how perverse it appears to a judge. Over
the course of the 17th Century, the liberties of the English had undergone
an extraordinary change for the better. This was thanks not only to men like
Edward Bushel and John Lilburne, but also to the legal instrument at the
heart of their stories. Habeas corpus had served Englishmen well. Could it
now deal with an horrific abuse which the English were inflicting on others?
1771. The Thames docks. A legal document is raced down to a ship that is
about to set sail with its cargo for Jamaica. The document required the
ship's captain to produce his cargo before the Chief Justice. The document

was a writ of habeas corpus. The cargo, a slave called James Somerset. By
putting Somerset in chains, the ship's captain had become his jailer,
answerable to the law. And as we have seen, habeas corpus gives a prisoner
the power to compel his jailer to justify his imprisonment. A realisation
swept across the slave trade. The very legality of slavery itself was going to
be tested in court. So, who was James Somerset and how had he come to be
here? I asked Arthur Torrington, who has studied the history of slavery.
James Somerset was kidnapped and taken to Virginia. He was bought by a
gentleman by the name of Charles Stewart. Um... a boy of nine, enslaved,
was just a pageboy, was just a helper. But eventually, about ten or so years
after, this Mr Stewart brought him to London. And that's when all the things
began to change. James Somerset escaped. Frightened and in a strange
land, he sought refuge with members of London's black community. He
must have believed that you can run away and it's all right. But whereas his
master felt that this is a bit of, um... Well, he was ungrateful. That was what
Stewart had said. And therefore, what Stewart did was to get one of his
friends, or he paid somebody to do it, and eventually, they actually got hold
and they kidnapped James Somerset and put him on a ship. Fortunately,
while Somerset was on the run, he had encountered abolitionists. Their
leader, Granville Sharp, was seeking to challenge the legal basis of slavery.
When he heard of Somerset's plight, he knew he had found the perfect test
case. In the case of Granville Sharp, he felt that these are human, and
therefore, human beings cannot be and should not be treated in that
particular way, in which they are enslaved, they are not given human rights
and so on. So Sharp was determined to break that cycle if he could. At
bottom, this was an argument about whether a slave had rights on British
soil. Rule Britannia, the popular anthem of the era, boasted that Britons
never shall be slaves. Now the legal system was being asked, Can slaves
ever be Britons? Did the law regard a slave as property, like this boat? A
writ of habeas corpus in this case would be meaningless, or would the law
see a slave as a human being? If so, habeas corpus could challenge their

transportation out of the realm without their consent. Ultimately, the

judgement in this case would reverberate on both sides of the Atlantic. The
case went to the very top, to Lord Mansfield. The slave traders could have
expected Mansfield to be their ally. Of Scottish noble birth, he embodied the
establishment. From his imposing home, Kenwood House, to his rulings
embracing free trade. He had been leader of both Houses of Parliament and
was the highest judge in the land. Lord Chief Justice. In this fine library, the
erudite Lord Mansfield studied the law. And there he is in all his glory,
robed in ermine, reading Cicero, with Homer inspiring him, and the pillar of
Solomon behind him. As the case ground on in Westminster Hall, Lord
Mansfield is said to have proclaimed, Let justice be done, though the
heavens fall." Both sides were well represented. The abolitionists' barristers
claimed there was no law legalising slavery in this country, and so it must
be illegal. The slavers' counsel countered by saying that as contracts for the
sale of slaves were recognised in English law, that must validate slavery in
England. The court adjourned for Lord Mansfield to prepare his judgement.
Did the law of Virginia have any standing in England? Was slavery
sanctioned or at least permitted under common law? He pondered long and
hard on this momentous task. Lord Mansfield brooded over the case. What
did the law say? What did his heart say? What impact would a ruling on the
James Somerset case have? Granville Sharp, the great abolitionist, was
anxiously awaiting the ruling. But having clashed with Mansfield in the past,
he didn't come to court to avoid antagonising the judge. So he did not hear
the judgement delivered, staying instead at his home. The result was
sprinted through the streets to him. In this street, somewhere near that
spot, Granville Sharp answered his door. There in front of him, smiling,
exultant, stood James Somerset, a free man. It was a staggering decision.
How had Lord Mansfield come to rule in a mere slave's favour? Although he
may not have realised it, Sharp had a secret agent at the very heart of this
house. She was the daughter of this man, Captain John Lindsay. Mansfield's
nephew. Her name was Dido Bell, and it's believed her mother was an

African slave. Dido grew up at Kenwood in Lord Mansfield's care. Was

Mansfield's landmark judgement influenced by his fondness for her? In his
judgement, Lord Mansfield said that the state of slavery is of such a nature
so odious that the English common law could never accept it. Now, whether
he meant by this to ignite a spark that would end slavery is unclear, but that
is how his judgement was interpreted both here and abroad. One single writ
of habeas corpus had released not just one man from bondage, but was to
mark the start of freedom for all the 15,000 slaves then in England. Habeas
corpus remains part of English law. But it rarely needs to be used today. In
my entire career, I've never had to seek it on behalf of any of my clients, nor
has anybody else I know. We simply take it for granted that everybody has
the right to know the reasons for their detention, just as they have the right
to a fair trial by an independent jury under the auspices of an impartial
judge. Arbitrary action by the state at any stage in the legal process is
something we hope, like slavery, has been consigned to history. We may
regard these liberties as freeborn rights, to use John Lilburne's words, but
we mustn't forget just how hard won they were. Next time - revolution in
the courtroom. How the criminal trial turned from a one-sided struggle in
the shadow of the noose into the fairest court system on Earth. It's the story
of how barristers took centre stage and of how the law finally admitted its
own fallibility.

Strange Case of the Law Episode 3

In 1825, Newgate jailers escorted John Smith along this evernarrowing

corridor.

He

had

been

convicted

at

the

Old

Bailey

of

housebreaking. 'He had no barrister to represent him, no witnesses to call

on oath. 'All he could do was to protest his innocence - in vain.' John Smith
finished his walk about here. And this was probably his last view of daylight.
He was hanged for this crime. John Smith was a boy of just fifteen. The case
of

John

Smith

sounds

like

an

awful

aberration,

shockingly

disproportionate punishment for a property offence and inflicted on one so

young. Yet this was no miscarriage of justice. The trial followed the due
process of the day, a due process that was far from equal, but was stacked
against the defendant. Life or death could be decided in minutes. Most
defendants had no one to put their case, other than the judge himself. If this
now seems rather surprising to us, it's because of the remarkable
transformation that's taken place in our legal system over the last three
centuries. It's one that went well beyond due process to enshrine in English
court procedure the principle of the equality of arms, of simple fairness.
'That transformation was shaped by seismic shifts in English society 'from
the Industrial Revolution 'to the rise of the popular press. 'It's a story that
takes place in the shadow of the noose, 'one that features spies, visionary
politicians blazing their way through the statute books, 'forgery, fraud and
murder. 'And the most dazzling advocates ever to step foot in an English
courtroom.' At the centre of this revolution was my profession. Barristers
like William Garrow pioneered new rules of evidence and their aggressive,
passionate performances made them the star turns of the courtroom drama.
If he were guilty, and I say plainly he is not, must he hang alongside
murderers and cutpurses?! Mr Garrow! You will be in contempt! 'In this
programme, I'll trace how a rather crude and biased legal process' was
remoulded to give us what we have today... the fair trial. At the start of the
18th century, our liberties and freedoms had been established. The courts,

by comparison, were still in the Dark Ages. Land yourself in the dock and
you found yourself in a medieval nightmare. With no police force and no
forensic science service, the only means of deterring crime was through
exemplary punishment... whipping, transportation and hanging. And an
already severe system was about to get even bloodier. This is Waltham in
Hampshire. 'In 1723, it was a place of terror. 'A gang rampaged through
these forests, poaching, robbing and murdering, 'their faces blacked up in
disguise. 'It was feared these Waltham Blacks, as they were known, would
spread their violence across England.' As a kneejerk reaction, the Waltham
Black Act was rushed into law. Suddenly all manner of offences were
punishable by death. Just being caught in a park with a blacked-up face
could get you hanged, along with damaging trees and wrecking fish ponds.
It was the harshest piece of legislation that the country had ever seen. Thus
began a terrible trend that meant that by the end of the century more than
200 offences were punishable by death. Deterrence was all. As Judge Buller
told a felon he was sentencing, "You are to be hanged not for stealing
horses but that horses may not be stolen. 'This system was aptly named the
Bloody Code. 'At its heart was London's Hall of Justice, the Old Bailey. 'In
Georgian times, trials were held in a courtroom exposed to the elements to
prevent typhus 'infecting others. The Old Bailey today may look like 'a
palace of justice, but in the 18th century it truly was a death trap. 'In 1750,
long after the building had been enclosed, 'an outbreak of jail fever
promiscuously killed 60 people, 'including two judges and the Lord Mayor.'
If the physical conditions were vile, the way in which justice was meted out
seems much worse. You are facing the noose. Are you entitled to a defence
barrister? No. Can you or your defence witnesses give sworn testimony? No.
Do juries retire to give careful consideration to your case? No. And you
were lucky if the entire proceedings from start to verdict and sentence took
more than 15 minutes. The idea that the accused was entitled to an
adequate defence had yet to penetrate these walls. In this era, people felt
the innocent should be able to argue their own cases. Many an accused,

when compelled to defend themselves in this alien environment, with its

unfamiliar procedures and terminology, would have been terrified into
incoherence when their lives were hanging in the balance. If the defendant
needed assistance, the judge was expected to offer it. Judges were not
always seen to be the apogee of impartiality and some could find the court
day a little enervating. In 1699, Spencer Cowper, grandfather of the poet
William, was on trial for murder. Towards the end of a lengthy day, an
exhausted judge admitted he was struggling to sum up the case. I am
sensible I have omitted many things," he said, but I am a little faint and
cannot repeat any more of the evidence." Despite this display of judicial
lassitude, or perhaps because of it, the jury found Cowper not guilty. With
judges your only defender and the Bloody Code sanctioning hanging for
over 200 crimes, you might have expected the hangman to be the busiest
tradesman in town. Thankfully, something came between you and the noose.
'The jury.' I'll let you into a wee secret gained from many years' experience
at the criminal bar. Despite all their tough talking in the pub, most people,
when they find themselves on a jury having to decide the fate of a fellow
human, in many cases have a tendency to go all... soft or tender. Tabloid
journalists may merely reflect the inclination or even aspiration of many of
their readers to string them up themselves, but when they do hold
someone's life in their hand, most people wobble. And this was nothing new.
Juries were considerably less punitive 200 years ago than perhaps you
might think. When faced with a Bloody Code which imposed the death
penalty for innumerable petty offences, juries were inclined to go against
their oath of bringing in a true verdict and either to find people not guilty
or, more often, to reduce the amount of property stolen so that it was no
longer a capital offence. This was known as pious perjury. And let me give
you an example. Here's just one case from the Old Bailey records and it
relates to a Mary Bain of the Parish of St Andrew Holborn. Now she was
indicted for the theft of clothing worth over 50 shillings. That was a capital
offence. She made a frivolous defence upon which the jury found her guilty

to the value of four shillings and ten pence," thus rendering her no longer
liable to execution and so she was merely branded. Counting on the mercy
of either the jury or the judge could seem a little bit like Russian Roulette,
but soon a means arose which would help even the odds for the defendants
and this is still a cornerstone of English justice today. But its beginning is
shrouded, still, in some little mystery. 'The mystery starts in the Inns of
Court, home to London's barristers. 'These lawyers had been pleading in
English courts since the 13th century, 'but their role had been mainly
limited to civil cases and litigation.' Here at Lincoln's Inn, as at the other
Inns of Court, more and more barristers came to ply their trade. They were
bright, energetic young men and their influence would be profound. 'By the
18th century, barristers were prosecuting criminal cases on behalf of the
Crown. 'And from the 1730s, some judges were allowing defence barristers
'to appear on behalf of prisoners facing the death penalty.' Had the judges
realised the influence barristers would come to have on the court and how
they would largely displace the judiciary from their dominating role in
trials, they might well have tried to slam the door shut. Once barristers had
their foot in that door, however, there was no one who could get them out.
Barristers appearing in criminal cases couldn't fall back on mere rhetoric.
They had to master a forensic questioning technique. Since the 13th
century, it was not considered proper for a barrister, in effect, to appear
against the King in felony cases that were brought by the crown. Thus
defence barristers could not address the jury directly, but had to rely on
vigorous cross-examination and the odd comment dropped in. One barrister
stands out. He did more than any other to change existing practice and to
transform the very nature of the criminal trial. William Garrow. The son of a
Scottish schoolmaster, Garrow was called to the bar in 1783. In later life he
would become an MP, the Attorney General and a Privy Councillor, but his
lasting impact came from the time he spent at the Old Bailey as one of the
most

prolific

defence

advocates

of

his

era.

Behind

these

rather

unprepossessing walls, a legal revolution was taking place. 'Such was

Garrow's legacy, along with the theatricality of his courtroom style, 'it's not
surprising that his story has been turned into a TV drama. 'This is the set of
Garrow's Law. 'The series largely draws on Garrow's actual cases, which
often were truly dramatic.' If he were guilty, which I state plainly he is not,
must he hang alongside murderers and cutpurses... Mr Garrow! You will be
in contempt! Is that a just end for any man? Gentlemen, you must know that
Mr Garrow was playing you like a harpist. 'I asked the historical consultant
for the series how much the TV Garrow reflected the man 'revealed by the
court records.' All we can base things on are the transcripts, so when you
go through them you can see that Garrow is most definitely breaking the
mould in terms of how he approached the task of persuading the jury about
his case. In his style, he seems to be succinct and to the point and he can
create a word picture followed by a question or a comment or a question
dressed up as a comment. A model modern barrister. In a way, he's the
godfather of the whole modern system of advocacy, as I see it anyway, with
this acidic kind of very American style, you know, approach to advocacy. You
are a man who will testify for a reward, you are a man who will have others
hanged for a reward! I witness from Christian probity! You witness from
greed! My Lord! Mr Garrow, you have said your say. A consummate
performer, Garrow was famed for his aggressive style of cross-examination.
'Andrew Buchan, who plays Garrow, seems such a natural fit for the role 'I
wondered if there was a lawyer in the family.' My father used to be a
Customs officer at Manchester Airport. And he would be relentless in just
trying to get to the bottom of where exactly they'd come from, why they
didn't have a bag. Just tell the truth. I don't believe a word. Where is your
uncle? What's his name? You don't even know his name? Just this... "I don't
believe a word of it." Like a bullet. And Garrow's manner of questioning
seemed to be very similar to, I cannot seem to recollect. Well, try. Because
this person's about to be hanged." Is it really quite easy to get into the role
of Garrow? It's an actor's dream, I suppose, because it is theatre. A lot of
barristers have a little bit of actor in them, so they love that arena and the

cauldron of the court. Garrow's brilliant use of theatrics meant the

opposition felt obliged to follow suit. Soon the two sides were battling each
other as adversaries. English trials had taken on a new form, which remains
with us today. The adversarial trial system in which I practise was born in
courts such as this. We don't, alas, have the nuts any more, nor the port, but
the wigs and the briefs tied up in pink ribbon are exactly the same. Garrow
may have been a mould-breaker in the courtroom, but he was also very
much in tune with the mindset of his age. In 18th-century Britain, the
prevailing intellectual climate was one of rigour, even of scepticism.
Leading thinkers such as the Scottish philosopher David Hume emphasised
the importance of direct experience in the acquisition of knowledge.
Learned institutions such as the Royal Society championed and popularised
the scientific method. The instinct of any educated person of Garrow's
generation would be to take nothing for granted, but to question received
wisdom and to test the evidence. 'And this Enlightenment thinking had
found its way into the courtroom. 'Previously, all evidence, even mere
hearsay, was equally admissible, 'but now rules of what could and could not
be considered evidence were introduced. 'Thanks to Garrow, the entire
balance of proof in the courtroom was changing.' Before Garrow, the focus
was on the response of the accused to the charges. Garrow shifted that
focus onto the case presented by the prosecution. The trial was no longer a
test of the defendant, but of the evidence against him. And linked to this
approach is a principle that has become the cornerstone of ideals of justice
across the world, yet can be summed up in one phrase. Innocent until
proven guilty. Just four words, but today a hallowed concept. The
articulation of this key principle, the presumption of innocence, has been
attributed to William Garrow. The fact that it has is a tribute to his impact
on the criminal trial process and on the rights of the accused. 'Of course, it
took more than one man to change England's entire legal machine. 'The
mystery is what the other factors might be. 'How the adversarial system
gained traction, surprisingly, is unclear. 'There was no Act of Parliament, no

judgment by or decree from the higher judiciary, 'but legal historian Richard
Vogler believes the answer may lie with broader forces. 'Nothing less than
the Industrial Revolution.' Why did this development take place at this time?
I think it is no coincidence that this development happened in England in
the middle of the 18th century at the same time that we were experiencing
these profound changes from our Industrial Revolution. Moving from a
feudal economy to a market, industrial economy. And I think those changes
affected all facets of life, including the criminal trial. And adversariality is
above all a market-driven system of justice. You pay for what you get in
terms of representation. The Industrial Revolution had brought with it
increasing commercial litigation, disputes over patent rights, mining rights.
Now lawyers in criminal courts took this a stage further and introduced a
bolder concept... that a defendant had rights. By talking that language when
they got into the criminal courts, they revolutionised the procedure. And
instead of the criminal defendant being a passive object of the procedure,
he or she became an active participant who was rights-bearing, who could
actually have a role and be represented. And this was the birth of a rights
culture that has subsequently spread all over the world. 'The revolutionary
idea that defendants had rights 'had an impact far greater than just in our
courts. 'What began in the courtroom grew into an entire culture. 'William
Garrow, as it turns out, was part of a bigger trend.' I can claim some modest
connection with William Garrow. This is 25 Bedford Row, where I and 60
other barristers have our chambers. But in the 18th century, this was
William Garrow's house. But I have to admit that despite his very many
considerable achievements, he's not my greatest hero. That honour has to
go to his contemporary, sometime colleague and rival, perhaps the greatest
barrister of them all, Thomas Erskine. And I say that not just because he's
Scottish. Thomas Erskine was the lawyer who truly championed the new
culture of rights. Charismatic, and with a superb analytical mind, he was in
tune with the new currents of political thought of the 18th century. Whereas
Garrow seems to have been driven largely by personal ambition, Thomas

Erskine, throughout his career, consistently deployed his very considerable

talents in the defence of Enlightenment values and liberty. Erskine accepted
the brief to defend Thomas Paine, the most radical English writer of the
age, whose ideas had helped inspire the American War of Independence and
the French Revolution. In 1792, Paine was accused of seditious libel for his
essay The Rights of Man. Erskine's decision was to cost him his post as
Attorney General to the Prince of Wales. Two years later, in 1794, Erskine
would take on his most important case, one that would both showcase his
remarkable skills and test them to the very limit. At the end of the 18th
century, in the wake of the French Revolution, the rulers of England became
more paranoid than at any time since the reign of James I. The government
of William Pitt severely restricted civil liberties and instituted a series of
prosecutions for treason which threatened to make an "English terror" a
reality. The French Revolution had horrified England's rulers. Would they, as
their French counterparts before them, be dragged to the guillotine? 'Places
like here, Cecil Court in London, 'were hotbeds of radicalism. 'Government
spies were watching. 'Mail was searched. 'Dissidents were intimidated.
Paranoia was rife.' One radical group was infiltrated by at least five
government spies. It went by the innocuous name of the London
Corresponding Society. Oh, thank you. In handbills such as this, the group's
leader Thomas Hardy called for reform - votes for all men and annual
parliaments. William Pitt's government, however, saw not reform but
revolution.

Printing

presses

were

secretly

despatching

pamphlets

throughout the country and corresponding societies were springing up

everywhere. The government was shaken. We conceive it necessary to
direct the public eye to the cause of our misfortunes and to awaken the
sleeping reason of our countrymen to the pursuit of the only remedy which
can ever prove effectual. Namely, a thorough reform of Parliament." The
membership of these political associations included tinkers, tailors, soldiers,
but also spies. Consequently, the wealth of evidence purporting to implicate
the corresponding societies in sedition continued to grow until, in the

spring of 1794, William Pitt could unleash the full force of the law against
them. Thomas Hardy and two other members of the London Corresponding
Society were to stand trial for high treason. If these men were convicted, it
would just be the start. The government had another 800 arrest warrants
waiting to be executed. Their chances of acquittal looked bleak. Then
Thomas Erskine agreed to fight their case. The treason trials which began
in October, 1794, had the nation transfixed. Erskine knew that he wouldn't
just be addressing the court. His words would echo around the entire
country. At the heart of his defence, Erskine put forward a clear statement
of Enlightenment principles. Men may assert the right of every people to
choose their government without seeking to destroy their own." In
excoriating style, Erskine demolished witness after witness for the
prosecution. A spy was called into the witness box. He claimed to be giving
his evidence from his notes, but frequently was looking at the ceiling. Good
God Almighty! thundered Erskine. Recollection mixing itself with notes in a
case of high treason? Oh, excellent evidence! Opening the defence, Erskine
spoke for seven hours. Not surprisingly, this was one of the longest trials of
its age. Finally, on the eighth day, the jury was ready to return its verdict
amidst nationwide anticipation. The jury foreman stood up. Not guilty, he
said. And promptly fainted. It was a very popular verdict. People went wild
with excitement. The horses were taken off Hardy and Erskine's coaches
and they were pulled in triumph through the streets of London by jubilant
crowds. We lawyers are reluctant to recognise excellence in anyone other
than ourselves. An impressive judge may merit a small portrait in a corridor,
a distinguished Lord Chief Justice may warrant a full-size painting in a hall,
but Thomas Erskine has a statue here, centre stage, in the library of
Lincoln's Inn. To be thus set in stone, at the very heart of legal London,
shows that his peers considered and consider him to be the finest barrister
and foremost defender of freedom of his or perhaps of any age. 'This new
fairer trial procedure, used to such effect by Erskine, 'would flow forth
across the world. 'The adversarial trial was perhaps England's best and

most benevolent export.' The adversarial system was exported even beyond
the British Empire and continues to this day in the United States of America
and throughout the Commonwealth. And it's still growing. In the last two
decades, Taiwan and several Latin American countries have adopted an
adversarial approach. 'Back in the 18th century, the involvement of
barristers may have made criminal trials fairer, 'but those convicted still
faced brutal punishments. 'The Bloody Code was still firmly on the stature
books 'and there was no sign that Parliament was in the mood to roll back
on capital offences. 'Britain's war with Revolutionary France had triggered
a series of runs on the Bank of England, 'draining its gold reserves. 'Fearing
it would run out of gold, 'in 1797 it increased the use of banknotes - a
counterfeiter's dream. 'But forging a banknote was a capital crime. 'The
Bank of England now found itself becoming, in effect, a forgery policeman,
'enforcing the full severity of the law. Hundreds were sentenced to the
gallows. 'At the British Museum, historian Jack Mockford explained to me
how the satirist George Cruikshank 'witnessed one such hanging and
responded with a typically trenchant protest... 'a caricaturist's banknote.'
It's clearly not a Bank of England note. No, but what it very cleverly does is
mock a lot of features which were commonplace on Bank of England notes
of this period and the past. So you have the famous image of Britannia, but
in this case she's seen devouring a baby's head and you have various
skeletal-like figures on the note. Here we've got a pound sign, but it's a
rope. Yeah, you have the hangman's noose, which has been cleverly turned
into the pound sign. Here I think we've got what looks like a row of people
being hanged. You do. That's right, exactly. And the signature is not the
Governor of the Bank of England. No, it is Jack Ketch, a slang term for the
hangman at this time. And what sort of impact would this have had? I think
it symbolised the point in the campaign against the use of capital
punishment for forgery that the Bank's role as the authority on policing the
problem and prosecuting individuals was coming to an end. Cruikshank's
note showed that the tide was turning against the use of the death penalty

for forgery. Juries refused to convict forgers. The Bank of England itself now
pressed the Government to relax its draconian penalties in a bid to secure
more successful convictions. Forgery was not the only law needing reform.
The whole system, savage and incoherent, required overhauling and only
Government could do this. The politician with the courage, the obsessive
eye for detail, and the power of personality to take on this project was
Robert Peel. When Robert Peel became Home Secretary, there were over
100 statutes dealing with forgery alone. He ruthlessly attacked this
legislative mess. Out of this bonfire of legislation, Peel pulled a piece of
legislative magic. 120 statutes were transformed into one, just six pages
long. With consummate skill, Robert Peel did more to reform the criminal
justice system than almost any other Home Secretary. 'Over the course of
eight years, Peel consolidated three quarters of all offences into a few key
Acts. 'The Waltham Black Act with its dozens of hanging crimes all but
disappeared. 'The death penalty was severely restricted. 'Had a Tory Home
Secretary gone soft? 'I put this to Peel's biographer, himself a former Tory
Home Secretary, Douglas Hurd.' Over the previous 100 years, there had
been a vast amount of Parliamentary legislation dealing with crimes, mainly
making them capital offences. That was a tendency. Of those 120 Acts
dealing with forgery, I think about half, 60, created capital offences. Peel
was not a humanitarian. He was not a liberal Home Secretary. It was not his
main aim to make a more humane, merciful system. That was one effect of
what he did, but it wasn't actually his main aim. His main aim was a Tory
aim. It was actually to tidy things up, make them sensible. It wasn't
primarily humanitarian. I think he was quite clearly looking for the right
answer and was not to be pushed off with inadequate answers or solutions
that weren't really solutions. He really was genuinely looking for, working
hard for, working day and night for the right answer for the system. Peel
had reformed the law. Now he searched for the means to enforce it. The
Bloody Code's unjust punishments had failed to stem crime. Could there be
a better deterrent? In August, 2011, rioting swept England and, for a time,

the mob ruled. 'Eventually, the police controlled the situation, but imagine
the destruction 'if, as in Robert Peel's day, the police didn't exist. 'Instead of
deploying police and employing water cannon, 'governments relied on the
Riot Act.' The Act held that where 12 or more people gathered together in
riotous assembly and rejected the reading of the Riot Act and failed to
disperse within an hour, then force could be used against them. Those
remaining on the scene would be subject to the most severe penalty of all...
death. A public official, usually a magistrate, would first of all read these
words. Our Sovereign Lord the King chargeth and commandeth all persons
being assembled immediately to disperse themselves and peaceably to
depart to their habitations or to their lawful business upon the pains
contained in the Act for preventing tumults and riotous assemblies. God
save the King! If you heard those words you had an hour to disperse or face
the consequences. In Peel's day, riots were frequent, but they often ended
with deaths on the streets. The Government's options were limited. You had
a number of ad hoc people like the Bow Street Runners, but basically you
relied on the army because that was the only force that was available. Peel
advocated the creation of a police force. Uncontroversial to us, but at the
time a radical and suspect concept. Why were people opposed to the
creation of a police force? Because one of the themes which runs through
English history in the 18th and 19th century is the fear of a standing army.
A standing army was thought of as something the Stuarts rather believed in.
It was a reinforcement of royal power. And people thought - and this was
very strong when Peel first produced the plan for a Metropolitan Police...
that this was just the government trying to grab hold of the lives of the
people. Peel had long sought to replace the existing and ineffective system
of nightwatchmen and parish constables, but he faced an uphill struggle in
the face of the argument that a professional police force would be a danger
to liberty. Could Robert Peel convince the population that having a police
force did not mean England would become a police state? In 1829, he did
this by persuading the public that the police would not just control people,

they would primarily control crime. I want to teach people, wrote Peel, that
liberty does not consist in having your house robbed by organised gangs of
thieves or leaving the principal streets of London in the nightly possession
of drunken women or vagabonds. Crucially for English criminal law, the
creation of a professional police force meant they became the deterrent
against crime rather than draconian penalties. The raw cityscapes
described by Charles Dickens saw Peel's reforms in action. Society's
predators, the Fagins and Bill Sykes, faced a more immediate threat than
the noose... the increasing likelihood of being detected. When a Fagin was
in the dock, he would now get a brief. But there was still one shocking
imbalance. 'The defence barrister was fighting with one hand tied behind
his back.' Today no courtroom drama is complete without a defence
advocate vehemently addressing the jury on his client's behalf. It's the
culminating point of the defence. It's the part I enjoy most. My crossexamination merely provides the grist for that particular mill. Yet until the
first half of the 19th century, except in treason trials, only the prosecution
had that privilege, not the defence. But now all that changed. Sometimes
emotional, often theatrical, the speech by defence counsel to the jury
became a key moment in any trial. And no British lawyer mastered that
moment better than Sir Edward Marshall Hall, whose career spanned the
late-Victorian and Edwardian eras. It's thought he may have helped more
people to escape the noose than any other barrister. 'Sally Smith QC is
writing a new biography of Marshall Hall 'and has researched his eyecatching tactics.' The truth is juries like to be entertained to some degree.
And Marshall Hall entertained them. And he was using techniques which
nowadays would be regarded as being inappropriate. Many of them were
derived from the stage and from melodramas. He would put out his arms
and emulate the scales of justice. You have to remember he was a very tall
man and so it was very impressive. You have to be a very great advocate to
keep that up without looking silly. And he would go through the evidence
with his arms out like that and then slowly, slowly tip his arms and tip his

arms as he proved that all the evidence was in favour of... the innocence of
his client. Marshall Hall is believed to have had actual lessons in stagecraft.
If so, they certainly seem to have paid off. He was extraordinarily
successful. He had this magnetic capacity to persuade juries. But in 1907
Marshall Hall took on perhaps his toughest assignment. The Camden Town
murder was one of the most notorious crimes of the Edwardian era. A tale
of a brutal and savage killing and fog-filled London streets that could have
been ripped from the casebook of Sherlock Holmes. An artist called Robert
Wood was accused of murdering a part-time prostitute, Emily Dimmock. Her
body had been found in her Camden Town lodgings and her throat had been
slit from ear to ear. This gruesome case was a sensation. It inspired a series
of paintings by Walter Sickert. 'And it was covered in great detail by the
press, which had found you couldn't beat a murder trial 'when it came to
pulling in the readers.' Marshall Hall's secretary helpfully, if rather
laboriously, collated the press cuttings of his cases and she did so in several
volumes. These provide a considerable insight into the technique of his
cross-examination and the style of his oratory. 'From the reports of the trial,
it's clear that Hall cast serious doubt on prosecution eye-witnesses 'who had
identified Robert Wood. 'But to destroy the prosecution's case, Hall did
something that was almost unheard of. 'He called his own client to the
stand.' The moment had now arrived for the prisoner to go into the witness
box. The court was suddenly on the tiptoe of excitement. Mr Marshall Hall
simply said, 'I now put the prisoner in the box.' Wood jumped up in court.
The warders opened the side door of the dock and with alacrity and a
pleasant smile on his face, Wood strode to the witness box." Since 1898,
defendants could give evidence in their own defence, but this was
considered unwise and even foolhardy. The defence disliked it because they
said that nobody should have to defend their position, that it was up to the
prosecution to prove the case and not up to the defendant to give any
explanation. The prosecution didn't like it in capital cases because there
was a kind of, I think understandable, human resistance to having to cross-

examine a man when his life was at stake. Mr Marshall Hall started most
dramatically. 'Did you kill Emily Dimmock?' he asked, speaking slowly and
distinctly. Wood drew himself up quickly. 'It is ridiculous, ' he said, facing
the jury." The expected answer was a simple no. Robert Wood's manner in
the dock was effete and it did not suggest a man capable of such a grisly
crime, a point Marshall Hall was then able to drive home in his passionate
closing address to the jury. Then he burst out in dramatic fury. 'I say again I want a verdict of not guilty and nothing else! 'A verdict of not guilty to kill
this charge 'so that none of the lying witnesses can galvanise it hence into
any semblance of life.'" The press and public eagerly awaited the result.
Finally, the jury gave their verdict. Not guilty. Marshall Hall's gamble had
paid off and proved that getting a client to give evidence in their own
defence could be part of a fair trial. Not that this achieved justice for the
unfortunate victim. The murderer of Emily Dimmock was never found.
'Cases like the Camden Town murder trial were a circulation boon for the
popular press, 'but the papers were beginning to go beyond mere reporting,
'to take a more active interest in the legal process.' With the rise of a more
investigative and less deferential press, the law itself fell under the
spotlight.

Judicial

decisions

were

scrutinised

and

criticised

and

miscarriages of justice once confined to anecdotes told by barristers over

the port became front-page news. 'The new paper on the block, the Daily
Mail, had heard of a shocking miscarriage of justice. 'It was a classic case of
mistaken identity. 'Adolf Beck was identified as a swindler by 12 victims.
'They all swore he was a con artist calling himself Lord Wilton de
Willoughby. 'They had been tricked into giving their jewels to this fake lord.
'Despite his protestations, Beck was jailed.' Desperate to prove his
innocence, Beck tried to get his case reopened, but all his solicitor could do
was repeatedly to petition the Home Office for redress. The judges believed
justice was fool-proof and hence there was no proper appeals procedure.
Beck's appeal fell on deaf ears. One of the world's most unlucky men, Beck
had a small chink of good fortune. Years earlier, the Daily Mail's journalist

George Sims had listened to Beck recounting his travels in Peru, journeys
that had happened when he was allegedly in London swindling women. The
Daily Mail campaigned in earnest for Beck's release. You didn't have to be
Sherlock Holmes to realise the case stank, and his creator, Sir Arthur Conan
Doyle, joined the fight. Finally, under pressure, the authorities paroled
Beck. He had served five years of hard labour. The real fraudster, William
Meyer, now struck again and was caught red-handed. Beck's innocence was
undeniable. Rarely has a miscarriage of justice had greater impact. Outrage
turned to pressure for legal reform. Finally, in 1907, Parliament created the
Court of Criminal Appeal. At last, the legal system admitted it was fallible.
Far from being a sign of weakness, however, this new court showed that
English law was strong enough to acknowledge and deal with its mistakes.
But no appeal court can rectify a miscarriage if the victim has been hanged.
Once the law admitted its fallibility, capital punishment itself was on Death
Row. This is the notorious Dead Man's Walk. In days of old, you were
marched from your cell along this corridor to meet your maker. The walls
confined you, the arches became narrower and narrower. There was no
going back on your walk to the gallows. Now even today there's a sinister
feel to this place. It's gloomy, it's oppressive and it's claustrophobic. 'But
how can you execute someone knowing that their conviction may be unsafe?
'Medieval judges looked to God for the final word. 'Later, the law adopted
His infallibility. 'But once the law's imperfections were admitted, its
authority to impose the ultimate sanction 'was thrown into doubt.
'Eventually, in the 1960s, the death penalty was abolished for murder 'and
in 1998 for treason. Goodness knows, our courts still make mistakes, 'but
they are no longer fatal errors. 'I've found my voyage through the story of
English law extraordinary and often inspiring. 'Over this series, we've seen
how justice went from trial by ordeal 'to trial by a jury of your peers, the
defining feature of English common law, 'how we enshrined a culture of
rights and documents like Magna Carta and the Petition of Right, 'which
went on to shape liberty across the world, 'and how we evolved the

adversarial system, 'which exemplifies a fair, modern court procedure. 'But

the story is not over yet. 'I believe that the common law currently faces a
serious challenge.' I'm here on the roof of the Supreme Court, one of the
points of the triangle of power in this country. Over there, Westminster
Abbey and the national shrine and the Royal Chapel. And over here, the
Houses of Parliament. The political power of the church and the crown has
evaporated, but the power of the upstarts, Parliament, is in the ascendancy.
Judges, once the creators of the law, have largely had that role taken from
them by Parliament. Did judges acquiesce because they realise that the
common law can't deal with a rapidly changing world? When some
unpleasant novelty arises such as child pornography on the internet or
credit card cloning and society wants it dealt with, there's no use looking to
the common law for prohibitions or to earlier judgments for legal solutions.
As the Victorians knew only too well, a fast-changing society requires new
laws. This is where Parliament comes in. It enacts the appropriate
legislation, it creates new crimes and it changes the law of evidence, which
is

all

good

and

well

provided

that

that

legislation

is

coherent,

comprehensible and concise. But since the late 1970s, governments seem to
have become increasingly addicted to enacting new laws. Some of these
new laws were much needed and long overdue. The 1984 Police and
Criminal Evidence Act, for instance, helped to ensure that all suspects were
treated with conspicuous fairness from the moment of arrest, throughout
their time in detention. But what was once a light dusting of new legislation
first of all became a snowstorm and then an avalanche threatening to
overwhelm the entire legal system. Some may call this overload. I call it
legislative diarrhoea. 'I would argue that some of this legislation is again a
result of press influence, 'but popular pressure doesn't always make for
good law. 'When I met the Lord Chief Justice, he tried to give me a flavour of
just one year's legislation.' Crime International Co-operation Act has 96
sections and six schedules containing 124 paragraphs... 227 sections, four
schedules, containing 82 paragraphs. The Sexual Offences Act, 143

sections, seven schedules and 338 paragraphs, but the big daddy is the
Criminal Justice Act itself - 339 sections and 38 schedules with a total of no
less than 1,169 paragraphs. That's excluding Schedule 37, which has 20
pages of repealed statutes. So not only a far greater number of statutes, but
the statutes themselves are far, far larger... Infinitely complex. Infinitely
complex. And there are times when you have to struggle to find out what
the answer is to a particular problem. This is the criminal justice system.
It's supposed to be readily understood. It takes judges a great deal of
midnight oil to work out what some of the provisions actually mean and
whether they're in conflict with others. Does this mean that there are an
increasing number of cases coming to the Court of Appeal where it is at
least arguable that the lower courts got it wrong because they misapplied
the law or got confused about the law? Yes. There are appeals about what I
would describe as the technicalities. They're not strictly technicalities
because they are to do with what power the Court has, so in that sense
they're not technical, but in truth what they are is an analysis of what the
legislative provisions may lead us to conclude the law is supposed to be. I
think it's also the case that having enacted, for instance, the Criminal
Justice Act 2003, the Government subsequently had to amend that Act in
some provisions... Oh, yes... because of the untoward consequences it was
leading to. Oh, yes. And some of it has never been brought into force and
some will be repealed before it ever is. Today's criminal justice system
needs a 21st-century Robert Peel, someone able to reform and rationalise
our law, and stem the avalanche of parliamentary intervention. But, despite
its shortcomings, I remain a firm believer in the English legal system.
Whenever I put on my court robes, I'm conscious that I am playing a small
part in the long drama of this country's law. It's been around for a
millennium and a half and for all its imperfections it still ensures justice,
rights wrongs, protects society and defends liberty. To my mind, the English
legal system is this nation's greatest gift to the world.