Читать книгу The Trial: A History from Socrates to O. J. Simpson - Sadakat Kadri - Страница 8

He considered what he should say to win over the whole audience once and for all, or if that were not possible, at least to win over most of them for the time being.

FRANZ KAFKA, The Trial

Innocent III’s decision in 1215 to abandon ordeals threw England as much into the lurch as it did the rest of Christendom. For time out of mind, the country’s kings had been subcontracting criminal justice to the clergy, who had been happy to to scald and drown suspected sinners for a small fee. Many ordinary folk had even come to trust trials by fire and water, if only because the primary alternative, trial by combat, seemed suspiciously favourable to whichever litigant was able to afford the better weapons and champion. The country’s response to the abolition of ordeals would, however, be very different from that adopted on the continent.

Whereas continental rulers would turn to the techniques of the papal Inquisition and the rules of canonical law to fill the legal vacuum, the Church would never gain an equivalent degree of influence over royal justice in England. Its legal pretensions had already taken a heavy blow when knights loyal to Henry II had rid their king of turbulent Thomas Becket by braining him in Canterbury Cathedral in 1170. The assassination was followed by important concessions to clerical independence from a penitent Henry, and the English Church of the early thirteenth century was in no mood to rock the boat. While Catholicism’s legal traditions spawned across Europe, nurtured by the demands of its war on heresy, representatives of the English Church positively avoided their country’s royal courts. Clerics would long retain peculiar privileges: they were, for example, granted an automatic immunity from punishment if they read Psalm 51 of the Bible aloud from the dock, a provision that would mutate into ridiculousness over the years as convicts memorized the ‘neck verse’ and merciful judges treated them as monks. Bishops would, for another five centuries, retain the right to try religious crimes such as heresy and moral misdemeanours such as adultery. Canonical law would never get to supersede custom and statute, however. The irrationalities of England’s royal courts would come from sources other than the Good Book.

The authorities initially had little idea what should replace trial by ordeal. Royal judges customarily took the king’s justice to jails around the realm every few years, and their coaches had already left London for the provinces in late 1218, when a rather perplexed note from the guardians of 11-year-old Henry III caught up with them. Proof by fire and water was no longer an option, it reminded them, and they might want to deal with minor cases by exacting promises of good behaviour. Exile would often be appropriate for those suspected of slightly more serious crimes. But all that the note could tentatively suggest for offences of violence or dishonesty was imprisonment – and in an era when judges toured dungeons to empty them rather than fill them up, the proposal was a stopgap rather than a solution. And yet, the king’s advisors had nothing else to offer. ‘For the present,’ they concluded forlornly, ‘we must rely very much on your discretion to act wisely according to the special circumstances of each case.’

England’s judges would rise to the challenge. Their solution was seen for the first time at a trial in Westminster in 1220, when a self-confessed murderer called Alice snitched on five other accused men in the hope of saving her own skin. The charges could not be resolved by battle, because she was a woman, but those she named then agreed to submit ‘for good or ill’ to the judgment of twelve of their property-owning neighbours. Said neighbours promptly swore that one was a law-abiding man but that four were thieves, whereupon the unlucky quartet was hanged. By the following summer, when seven of the king’s judges set out on another circuit of England’s prisons, they had begun to use the new system regularly. Trial by twelve good men and true had been born.

The jury trial would generate countless myths over the following centuries, and those claiming to describe its origins have been among the most tenacious. Athens, Rome, and the Magna Carta – an abortive truce signed in 1215 between King John and rebellious barons – have all, in their time, been credited with inventing the institution. In fact, it owed nothing to any of them. Athenians had judged in groups of several hundred at a time, the mythological Oresteia notwithstanding, and their civilization was one of which few people in thirteenth-century England would even have heard. The Roman Republic had seen the establishment of courts known as the iudicia publica, at which wealthy officers and senators had judged certain offences, but the precedent had no impact at all on English law. The Magna Carta, for its part, asserted that monarchs had to obey their own laws, and used language that would later support arguments for speedy and fair trials, but although it acknowledged pre-existing methods of trial, it did not prescribe any new ones.

No innovation built on tradition has a single source, but some of the rituals from which Westminster’s judges were drawing in 1220 can be identified. England’s rulers had been assembling groups of sworn men to furnish them with information for several centuries, and a link between twelve men on oath and criminal justice had been seen as far back as AD 879, when King Alfred the Great signed a peace treaty with King Guthrum of Denmark. Their agreement, which partitioned England as the price for ending decades of Viking raids, established that a killer in either ruler’s realm could cleanse himself of blood-guilt by producing twelve sworn men (‘if he dares’). Quite where the idea of a dozen judges came from would always excite speculation, with later jurists crediting the Apostles, the tribes of Israel, and so on; but although that mystery remains obscure, it is very clear that in 1220 the number had become conventional. And only a short imaginative step would have been required to transform such compurgation rituals into the jury trial. Even in the early eleventh century, defendants in some cases had been required to choose co-swearers from an independent panel of locals rather than their friends, and the only change required was to turn that exception into the norm. Instead of being allowed to produce their own jurors, defendants would challenge those of their neighbours whom they did not trust to judge them fairly.

Just as there was institutional continuity, the extension of the jury’s role into the field of criminal justice was not a sudden leap from ritual to reason. A society that in 1215 had been committed to the belief that God healed blisters and zapped perjurers for love of justice did not in the space of five years decide that He had lost interest. The new system still relied squarely on the oath, and witnesses played no more than an occasional role in trials until well into the fifteenth century. The earliest jurors were the witnesses and their veredictum – or ‘spoken truth’ – was the only testimony required. God remained the guarantor of justice, and His wisdom was discovered by rituals that treated jurors as ciphers to be cracked rather than as agents of rational inquiry. They were deprived of food, drink, and fire while they deliberated, individually imprisoned if they held out against the majority for longer than a day and a night, and collectively carted from court to court if they swore a verdict that the judge considered perjurious. The crowning absurdity was that, at the same time that jurors were effectively robbed of a right to silence, defendants were formally prohibited from swearing to their innocence – for fear that the guilty among them would otherwise lose their souls.

No thirteenth-century thinker could have been entirely sure that fallible human beings were even capable of stepping into God’s shoes. The risk that a juror might break his oath would have been as keenly perceived as the hope that he would abide by it, while the few people who pondered such matters would have had little confidence in the ability of jurors to assess evidence. As elsewhere in Europe, the unseen deed, like the hidden motive, was widely perceived as a phenomenon beyond mortal ken, unknowable to all but God. England’s first legal writer, Henry Bracton, thus explained in the 1220s or 1230s that it made no sense for jurors to judge a poisoning – the quintessentially secret crime, always associated with sorcery in the pre-modern world – because ‘[they] can know nothing of the deed’. And whereas continental inquisitors would overcome such riddles by subjecting defendants to the rack and strappado, English law would require anyone suspected of particularly mysterious crimes to undergo trial by combat for at least another century.

To the limited extent that the new system did represent a move away from earlier superstitions, it seems to have inspired feelings ranging from trepidation to terror. At one of the first sets of trials, held in Gloucester in June 1221, almost half of the twenty-seven indicted defendants refused to enter a plea. Matilda, accused of murder, declined because she felt that too many people hated her. John explained that he had done far too much evil to want to put his fate in his neighbours’ hands. William, suspected of sheep stealing, backed out after seeing a jury send the defendants immediately ahead of him to the gallows. All the concerns sound eminently sensible, but rationality was certainly not the only force at work. For the judges were almost as unsure about their innovation as the defendants. They did not insist that anyone submit to it, and Matilda, John, and William – along with all the other holdouts – escaped execution. Two of the trio were immediately released.

The judges would soon overcome their compunctions, and by the time they reached Warwick, three months after the Gloucester debacle, they were putting their collective foot down. A murderer and a thief who refused to plead to a jury were unceremoniously hanged, and judges were soon requiring that defendants state – on their knees with right hand raised – that they consented to jury trial ‘for good or ill’. If they refused to do so they would be spread-eagled under stones or lead and given only bread and water until they submitted or died. The suspicions attaching to the novel system were nevertheless such that resistance was widespread for decades, and sporadic for far longer. As late as the mid eighteenth century there would be people who would refuse trial by jury, and England’s authorities retained the right to extract pleas using thumbscrews and millstones until 1772.

Not much is known about the trials that ensued over the next two centuries, but they were certainly very different from their modern counterparts. Although the law’s concern for the fate of defendants’ souls meant that an accused was denied the opportunity to give sworn testimony, few asserted a right to silence – for in the absence of any right to a lawyer, suspects who knew what was good for them argued for their lives. Their opponent was the accuser: prosecuting lawyers appeared only in major cases before the seventeenth century, and independent testimony was all but unheard of until the early 1500s. An English lawyer writing in the 1470s, Sir John Fortescue, found the very notion of witnesses downright sinister. In a lengthy explanation of how English trials were the best in the world, he explained that continental inquisitors not only used unpleasantly belly-bursting, tendon-snapping techniques of torture, but brought people to court to say what they knew. They could, he pointed out, be bribed to say anything. Far more sensible, he argued, to have a system under which no one was liable to conviction except on the sworn evidence of twelve unbiased men.

A gulf had begun to yawn between Europe’s two systems; and notwithstanding Fortescue’s pride, there is little doubt that the courts of the continent had the stronger credentials. Structured around Roman law and inspired by the belief that justice was a matter of clever men applying their minds to a case, they had both tradition and reason on their side. Those of England, on the other hand, rested on a hotchpotch of superstition. Reliance on the ability of unlettered jurors to administer justice was, quite literally, a relic of barbarism.

And yet, for all its irrationality, England was already producing a method of trial considerably more benign. The notion that some matters were simply unknowable was helping to restrain the temptation to torture: against the bloody record of continental Europe, kings and royal officials would issue no more than eighty-one torture warrants over the entire course of England’s history. English judges were also in a better position – at least potentially – to appreciate human frailty. Denied the right to seek the truth through force and required to sit alongside ordinary jurors, they could say, as Chief Justice Brian did in the late 1400s, that, ‘The thought of man shall not be tried, for the devil himself knoweth not the thought of man.’ And whereas continental justice was becoming a secret process, controlled by adepts who kept a lid on its mysteries until the moment of judgment, English trials were already virtually defined by their openness. The need to assemble jurors made it impossible to exclude the public, and although sheriffs and jailers would extort admission fees until the 1700s, large crowds invariably entered in their wake.

The characteristics of English courtrooms were, like all customs, as accidental as they were determined. They would, however, collectively define a notion of justice that would be of lasting significance – in England first, and then far beyond. And the most important accident of all was publicity, which would now turn the trial from an oath-taking ritual into a dynamic contest of fundamental political and social significance.

The background to the transformation was the crisis that tore England apart in the aftermath of Henry VIII’s break from the Roman Church in the 1530s. Henry, anxious to secure spiritual approval for sexual relations with Anne Boleyn, spent the late 1520s unsuccessfully lobbying the pope for a divorce, eventually growing so irritable that in 1534 he established his own national Church. It was enough, very temporarily, to resolve his marital difficulties, but it also marked the beginning of a very troubled era in English history. Over the next decade, Henry beheaded and divorced his way through another three marriages, decimating English Catholicism in the process. As traditional bonds of religious and national fidelity snapped, his government sidelined regular legal procedures in favour of the rudiments of a police state. Tribunals such as the Privy Council and Star Chamber assumed the power to punish without trial, and the torture chamber of the Tower of London was replenished and used to a greater extent than ever before. Henry simultaneously redefined treason to force his subjects to recognize his new authority or make their opposition apparent. The crime had never been the most tightly defined of offences – capable of penalizing acts ranging from fornication with the royal consort to forgery of a sixpence – but remaining outside its parameters now became an almost acrobatic act. The laws that attempted to keep up with Henry’s marital shenanigans are a case in point. The 1534 Act of Succession suddenly rendered it treacherous to deny the legitimacy of Elizabeth, his daughter by Anne Boleyn, or to assert that of his firstborn Mary. Two years later, another statute granted free pardon to anyone who had asserted the whoredom of Anne or the bastardy of her child. In 1543, with Henry planning an invasion of France, fears of familial oblivion generated a final burst of paternal pride, and he pronounced that anyone who refused to confirm the birthright of either daughter would be hanged, drawn, and quartered.

The oscillations only intensified after Henry’s death in 1547. Edward VI had barely hit puberty when he himself died, aged 15, in 1553, and Mary Tudor then threw the ship of state into reverse by restoring English Catholicism and burning some three hundred Protestants to prove it. Her half-sister, Elizabeth, gave the wheel another turn in 1558. Although conciliatory by temperament, she restored Protestantism as the national religion and soon found herself caught between a regrouping papacy, ambitious monarchs in Spain and France, and a realm on the verge of civil war. In pursuit of peace she flirted politically and socially with almost every eligible Catholic on the continent, but her legitimacy, in every sense, depended on the men of Rome – and they were not to be charmed. Pius V excommunicated her in 1570. Ten years later, Gregory XIII’s Secretary of State let it be known that an assassin could expect not just forgiveness from God, but positive gratitude.

In reaction to the papal fatwas, Elizabeth’s government mounted an increasingly ferocious assault on the Catholic enemy within. The authoritarian machinery that had taken shape under her father swung into action against religious insurgents real and imagined, while an equally threatening surge of ordinary crime inspired the construction in 1571 of a triple-beamed gallows that would soon become a byword for legal cruelty in England – Tyburn. By the 1590s a visiting Duke of Wirtemberg was able to count more than thirty grinning heads as he strolled across the towers and twenty arches of old London Bridge. Punishments did not just increase in number. Since the reign of Henry VIII, their variety had also been propagating,^* and they now flowered into a pattern of dizzying complexity. Minor criminals might be dunked or made to wear a placard carrying the name of their crime. Felons often had the initials of their offence inscribed in their flesh, while those who devalued the royal coin were made to pay with the loss of their ears and nostrils. The symbolic amputation once imposed on libellous printers by Mary Tudor was also revived – claiming, among its first victims, the appropriately named John Stubbes, who exuberantly raised his hat and yelled ‘God save the Queen’ as a mallet was hammered through his right wrist. One case from 1594 can stand as memorial to all the thousands of other butcheries. It concerned five men convicted of a string of felonies ranging from counterfeiting to blackmail: four were sentenced to ‘stand on the pillory and lose their ears if they have any’ before being branded on the forehead with the letter ‘F’. Elizabeth’s most trusted judge, Lord Burghley, complained that such burns healed too quickly and proposed to ten of his fellow Privy Councillors that the Fs should instead be carved into the convicts’ cheeks and have coloured powder rubbed into them. It seems, thankfully, to have been a proposal too far. According to the lawyer who reported the case, ‘the others made no reply to this’.

The spread of corporal punishment was not unusual. Rulers across Europe were relying on the appearance of power to magnify its reality, and in Elizabeth’s realm – riddled by spies, convulsed by rebellions and consumed by crime – the need to show subjects who was in control was a pressing one. But English criminal justice underwent a second, unique, transformation – for it did not use just human bodies as billboards for government authority. At the very same time that the rulers of France and Germany were ending the last vestiges of courtroom publicity, the English government embarked on a deliberate policy of using not just punishments but trials to show where power lay.

Henry VIII had sown the seeds with condemnations of, for example, Thomas More and Anne Boleyn, but it was during the reign of Elizabeth that the strategy reached fruition. Under the hammerbeam roofs and stone vaults of England’s palaces, traitors stood behind solemn pikemen to hear their crimes described and their protestations of innocence ridiculed by some of the finest advocates of Renaissance England. Vast crowds were permitted to attend, and although witnesses were still forbidden to defendants, they increasingly appeared on behalf of the Crown – often very suddenly. At the trial of the Earl of Essex, for example, the Lord Chief Justice stepped down from the benches to testify at the behest of the Attorney-General while a Privy Councillor emerged at one point from a secret listening post to interrupt and contradict the defendant. And when it was all over, convocations of robed judges invited the jurors to consider the question of innocence or guilt. The verdicts rarely surprised. Records of the proceedings, transcribed by squads of stenographers, were then turned into anti-Catholic propaganda and published in English and Latin for the benefit of audiences domestic and European.

The hearings were rituals of condemnation rather than inquiry, and only a handful of acquittals ever occurred – but the insistence on public articulation meant that even the most careful preparations could suddenly go awry. When William Parry appeared at Westminster Hall in 1585 to answer charges of attempting to assassinate Elizabeth, he wearily entered a guilty plea and declared that, ‘I desire not life, but desire to die’. But the court was packed with Londoners anxious to see Parry get his comeuppance, and instead of moving directly to sentence his judges ordered that his confession be read aloud, ‘that everyone may see that the matter is as bad as the Indictment purporteth’. As Parry heard his words repeated, steel returned to his broken frame. ‘Your Honours know…how my confession was extorted,’ he declared. They fired back that torture had not been used. It had been threatened, he retorted. Charge and counter-charge spiralled, until Parry was denying any intention to kill the queen at all and promising to ‘lay his blood’ amongst the judges if they condemned him to death. The rattled men of the bench, warning him against such ‘dark speeches’, ordered that he be hanged, drawn, and quartered. A process that would have remained behind closed doors on the continent ended with the defendant being pulled down the riverside steps past a hooting mob, demanding ‘in his rage and passion’ that Elizabeth be summonsed ‘to answer for my blood before God’.

No trial better illustrated the unpredictable force of publicity than one that occurred under the reign of Elizabeth’s successor, King James I, in November 1603: the prosecution for treason of Sir Walter Raleigh. Drama was virtually guaranteed from the outset. Until Elizabeth’s death in March 1603, Raleigh had enjoyed a charmed existence. Tall and elegant, he had shimmered like a peacock in a court where looks had mattered. After sponsoring England’s first American colony at Roanoke in 1585, he had introduced Elizabeth’s entourage to the pleasures of tobacco, and done more than any man alive to popularize the potato. Most heroic of all were his exploits against Spain, whose fleet he had taken on in battle three times. As England had flexed its maritime muscles he had trespassed even further into the heart of Spanish darkness, returning from one voyage in 1595 with tales of a land called Guyana where the natives’ heads grew beneath their shoulders and precious metals veined every rock. El Dorado, he had reported, was just a return trip away.

All the derring-do came with an arrogance that lost friends as easily as it won them, however. Even Elizabeth sent Raleigh to the doghouse for several years when he breached palace protocol by impregnating one of her maids of honour, and the fastidious James took against him almost instantly. Though unequivocally Protestant, the king was always more concerned to steady his wobbly throne than to fight the old religion, and was as underwhelmed by Raleigh’s anti-Spanish credentials as he was unimpressed by his fondness for tobacco. Within months of James assuming the throne, the monopolies, patents, and privileges dispensed by Elizabeth were suspended and Raleigh had lost his grace-and-favour mansion. Although inconvenient, it seemed no more than a routine shake-up – until in the summer, one of Raleigh’s closest friends, Lord Henry Cobham, was implicated in a Catholic plot to overthrow the king. No evidence linked Raleigh to the conspiracy, but he too found himself under arrest in mid July on suspicion of treason. The rogue of the old dispensation was about to turn into the whipping boy of the new.

In November 1603, with a plague epidemic claiming two thousand lives a week in London, the entire court decamped to the ancient city of Winchester for the trials. The city traced its history back to Rome and its mythology back to Camelot, but this was the grandest show that it had seen in a long while. Scholars were thrown out of their cathedral lodgings to accommodate the jurists, James set up field headquarters at a nearby mansion, and carriages laden with judges, jurors, lawyers, and defendants were soon streaming through its gates. Raleigh took up residence at the castle dungeon on 15 November, and arrived to the news that several of the Catholics charged with conspiring against James had just been tried, and that all but one had been sentenced to death. Although Raleigh’s own interrogators had never sought to link him to a broader plot, it was not a good sign.

Early in the morning of 17 November Raleigh was escorted by pikewielding guards down to the Bishop’s Palace, and led into its sepulchral courtroom. His plummeting fortunes had been entertaining the country for months, and popular interest in his anticipated destruction was immense. On the five-day journey from London, his carriage had been received with abuse, rocks and showers of clay pipes throughout (inspiring Raleigh laconically to observe that ‘dogs do always bark at those they know not’), and the pillars, bays, and benches were now filled. Aristocrats and commoners sat cheek to cheek, exhaling large clouds of tobacco smoke if other trials of the time are a guide, as they waited for the show to begin. Almost all would have been hoping to see the final act of an epic life.

All seemed set fair to sink Raleigh. A phalanx of eleven royal commissioners, all of whom had helped investigate the plot against James, sat at the front of the court, four wearing the scarlet robes and black cornercaps of high judicial office. Local legend tells that the king himself was concealed in a cubbyhole, his ear to a listening hole, and although unlikely (because James had specifically sent reporters to court) it would not have been out of character; he secretly eavesdropped at many other major trials that occured during his reign. And at the prosecution benches, flanked by his fellow lawyers, was the most feared advocate of the day: Attorney-General Sir Edward Coke.

The lawyer, in his early fifties like Raleigh, was in many ways the mirror image of his adversary. Equally imposing physically and no less confident personally, he epitomized just as Raleigh did a social type that was emerging for the first time in England: the self-made man. Each was born into a comfortable but non-aristocratic family; and although they had frequented different types of court, both had clambered up the hierarchy with a judicious combination of back-stabbing, fawning, and charm. Like many Elizabethans on the make, both were also masterful rhetoricians. In a fluid society where a commoner could no longer become a monk but could be appointed Attorney-General or mount a search for El Dorado if he sounded convincing enough, the ability to persuade was becoming an essential skill. Raleigh was a talented poet and writer while Coke, though always more likely to censor England’s theatres than to attend them, had an eloquence renowned even among contemporaries who were rarely tongue-tied. Elizabethan schoolboys were taught adoxography, the art of eruditely praising worthless things.^* Coke mastered a converse skill – and with his words, he sent scores of men careening to their deaths.

The power was one that he exercised with pleasure. When the Earl of Essex told his treason jury in 1600 that Coke was ‘play[ing] the orator’ and displaying ‘the trade and talent of those who value themselves upon their skill in pleading innocent men out of their lives’, the remarks contained the soupçon of an aristocratic sneer. But the trade and talent of the commoner from Norwich Grammar School was enough to persuade twelve peers to despatch Essex to the chopping block, and Coke would only have taken the complaint as a compliment. For he prosecuted with a passion that went beyond the call of professional duty. It was a quality exemplified in his verbal duel with Raleigh, which has good claim to be the most abusive courtroom battle in England’s history.

As was usual, Raleigh had not seen the indictment before coming into court, and he now heard for the first time that he had supposedly agreed with Cobham to raise rebellion on behalf of Spain’s king and hand James’s crown to a Catholic pretender. That came as little surprise, but Coke then continued, apropos of nothing very much, with lurid accounts of the conspiracies of which the other plotters had been convicted two days before. Raleigh listened in silence for several minutes, before pointing out that their crimes had nothing to do with him. Coke did not deign to reply directly. ‘Like Sampson’s foxes, [the treasons] were joined in the tails though their heads were severed,’ he pronounced, before stitching together several non sequiturs of his own. Treason, he explained to the jury, had its root, bud, blossom, and fruit, and this was treachery so radical that it had not even been put into effect. The others had already been convicted of plotting against ‘the [king] and his cubs’, he pointed out, before swivelling towards Raleigh. ‘But to whom, Sir Walter, did you bear malice? To the royal children?’ As though accosted by a drunkard with a knife, Raleigh’s reply was nervous courtesy itself. ‘Mr. Attorney, I pray you to whom, or to what end speak you all this?…What is the treason of [the others] to me?’

Oozing a vitriol that still hisses from the page, Coke finally homed in on his quarry. ‘I will then come close to you. I will prove you to be the most notorious traitor that ever came to the bar.’ Raleigh replied that if the lawyer could prove anything at all, he would admit not just that he was a traitor but that he was ‘worthy to be crucified with a thousand torments’. ‘Nay, I will prove all,’ growled Coke. ‘Thou art a monster; thou hast an English face, but a Spanish heart.’ He continued with another sustained attack on various betrayals supposedly committed by Lord Cobham, who was awaiting his own trial in a dungeon below the court. ‘What is that to me?’ Raleigh demanded. ‘If my Lord Cobham be a traitor, what is that to me?’ Coke erupted with anger. ‘All that he did was by thy instigation thou viper, for I thou thee, thou traitor!’ All the thouing, a form of address conventionally used for children, servants, and animals, threatened to turn the exchange into a slanging match, but Raleigh’s retaliation remained restrained. ‘You may call me a traitor at your pleasure, yet it becomes not a man of quality and virtue to do so,’ he replied, ‘but I take comfort in it, it is all that you can do.’ Lord Chief Justice Sir John Popham – a massive presence in a blood-red gown – stepped in to separate the men. ‘Mr. Attorney speaks out of the zeal of his duty for the service of the King; and you for your life,’ he told Raleigh, ‘be patient on both sides.’

Any hope of a clean fight was, however, doomed from the start – for it very soon emerged that the combatants did not even agree on the contest’s rules. In particular, they had diametrically opposed ideas about what constituted evidence. When Coke responded to Raleigh’s challenge by declaring that he would turn to his proofs, he read aloud an unsigned statement in which Lord Cobham was said to have confessed, four months earlier, that Raleigh had incited him to serve Spain. Raleigh, after reminding the jurors that he had done more than most to subvert Spanish interests, asked that Cobham make the claim to his face. Every defendant, he argued, had the right to confront his accuser. The law of England, like the Book of Deuteronomy, guaranteed that no one could be convicted of treason unless publicly charged by at least two witnesses.

The claim caused consternation among the judges; and although one reason was that Raleigh was simply wrong under the law of the time, the discombobulation reflected more than disagreement over the technicalities of treason. It was still just a few decades since witnesses had first begun to appear in trials – and the judges thought it preposterous to propose that criminal allegations required testimony at all. ‘I marvel, Sir Walter, that you, being of such experience and wit, should stand on this point,’ said Justice Warburton, ‘for many horse-stealers should escape if they may not be condemned without witnesses.’ When Raleigh insisted that the whole purpose of a trial was to allow a jury to weigh up the prosecution’s evidence, Lord Popham hoisted his bulky frame back into the fray. He had already told the jury that he could personally vouch for the truth of Cobham’s confession, having taken it himself, and his intervention was as predictable as it was decisive. No, he declared abruptly, trials did not require witnesses. A person could be convicted on the strength of confessions and statements that had been recorded before the hearing. ‘I know not, my Lord, how you conceive the law,’ responded Raleigh, ‘but if you affirm it, it must be a law to all posterity.’ ‘Nay, we do not conceive the law,’ boomed Popham. ‘We know the law.’^*

Any doubts that Coke might have had about his case were finally dispelled. He returned to the attack, now reciting from statements made by the men already convicted, in which they repeated rumours, second- and third-hand, about Raleigh’s willingness to betray England. ‘O barbarous!’ exploded Raleigh. ‘Do you bring the words of these hellish spiders against me?…I find not myself touched, scarce named; and the course of proof is strange; if witnesses are to speak by relation to one another, by this means you may have any man’s life in a week; and I may be massacred by mere hearsay.’ He pleaded again for Cobham to be produced in court but Popham held firm, pointing out – plausibly, if unhelpfully – that he might recant and confuse the jury.

As if to taunt Raleigh, Coke then produced a second statement from Cobham in which he apparently claimed that Raleigh had written to tell him that traitors were immune from punishment in the absence of two accusers. When Raleigh vehemently denied writing such a letter, the prosecutor announced that he would, after all, call a live witness. All heads turned – to see an unknown character step forward. The man identified himself as a sailor called Dyer, and told the jurors that someone in Lisbon had once told him that James would never be crowned king of England because Don Raleigh and Don Cobham would slit his throat first. He then drifted away as mysteriously as he had arrived. A flabbergasted Raleigh inquired how the supposed ramblings of an unknown person in Portugal could possibly implicate him. ‘Your treason’, snarled Coke, ‘had wings.’

As the hearing neared its conclusion and Raleigh pleaded with the jury to judge him as they would want to be judged, Coke demanded ‘the last word for the King’. ‘Nay, I will have the last word for my life,’ replied Raleigh. ‘Go to,’ exploded the Attorney-General.’ I will lay thee upon thy back for the confidentest traitor that ever came to the bar!’ Even the judges now sided with Raleigh until Coke sat down and petulantly accused them of encouraging treachery. They relented, like bad parents with a worse child, and begged him to carry on – which he did, at length. His summary of all the statements that everyone had already heard elicited yet another protest, and Coke let loose with one final spray of abuse. Addressing Raleigh to his face, he condemned him as ‘the most vile and execrable traitor that ever lived’, ‘an odious fellow’ whose ‘name is hateful to all the realm of England for thy pride’. As cool as his opponent was incontinent, Raleigh wondered which of them deserved the superlatives. ‘It will go near to prove a measuring cast between you and me, Mr. Attorney.’

The sympathies of the spectators had indeed shifted. One of James’s courtiers later told the king that ‘he would have gone a thousand miles to have seen [Raleigh] hanged’ at the beginning of the trial, but ‘would…have gone a thousand to save his life’ by its end. ‘In half a day’, another observer reported, ‘the mind of all the company was changed from the extremest hate to the greatest pity.’ Coke’s attacks inspired such hostility among bystanders, wrote someone else, that ‘calling hym base trash [they] begann to hyss’ while Coke himself looked ‘to be something daunted’. But the lawyer also had the thick skin of a seasoned showman – and the nous to save the best till last. Like a knife thrower with one final trick, Coke now pulled a scroll from his pocket, and the crowd hushed.

He had in his hand, he announced, a signed letter that Cobham had written just the day before. The prisoner had been so troubled by a guilty conscience that he had been unable to sleep and he had now chosen finally to unburden himself. ‘I have thought it fit’, recited Coke in his powerful voice, ‘to write nothing but what is true; for I am not ignorant of my present condition, and now to dissemble with God is no time.’ Raleigh, the letter continued, had written to him in his jail cell – not just once, but twice – and urged him to withdraw his accusations of treason. But Cobham would not do so. Indeed, ‘craving humble pardon’ for his ‘double dealing’, he now claimed that Raleigh had solicited an annual payment of £1500 from the Spanish government in exchange for his services as a spy.

Raleigh was visibly shaken. He eventually handed up a letter, smuggled out of Cobham’s cell, in which the prisoner said precisely the opposite, protesting Raleigh’s innocence, but it came as a damp squib after Coke’s pyrotechnics. Raleigh admitted also that he had indeed written twice to his old friend, that he had been offered £1500 to be a spy and that he had been wrong to conceal that fact from the court. ‘But for attempting or conspiring any treason against the King or the State,’ he insisted, ‘I still deny it to the death, and it can never be proved against me.’ It was all too late. Even if Cobham was a double-dealer on his own admission, Raleigh’s own words suddenly sounded like those of a man with secrets to hide.

After the jurors were told by one of Coke’s colleagues that the defendant had to prove his innocence, a common view in the seventeenth century, it took them just fifteen minutes to return a guilty verdict. Lord Popham then delivered the standard sentence for traitors, ordering that Raleigh be dragged to the scaffold and half-hanged, before being made to watch while his intestines and penis were tossed onto a fire. He was then to be decapitated and cut into quarters, each flank to be disposed of at the king’s pleasure.

Such a sight would have made a great many people very happy in 1603, but Raleigh’s life had further to run. He was spared by James and spent more than a decade confined to quarters in the Tower of London, conducting chemistry experiments, writing a history of the world and imagining lands and times far away. Then, in 1616, opportunity knocked. James, ruminating on Raleigh’s claims to have stumbled upon the route to El Dorado, had decided that a little unfathomable wealth would be no bad thing. He could, declared the king, set off to find the fabled city – a fifth of all receipts to go to the Crown. Raleigh, presented with one last glimpse of glory, set sail on 12 June 1617. By the time he returned a year later, the dream had turned to dust. Skirmishes and smallpox had devastated his crew. Among the scores of men that he had left buried on the banks of the Orinoco were his lifelong servant and his eldest son. And instead of cargoes of bounty, he trailed in his wake only furious complaints from Spain’s ambassador that he had attacked one of that country’s colonial outposts.

James, deeply unimpressed with his fifth of nothing, now judged it politic to appease the national enemy. The man who had been condemned for serving Spain was about to pay a heavy price for having offended it, for instead of giving Raleigh another trial the king decided simply to enforce the penalty that he had stayed fifteen years before. Sentence was pronounced at a hearing at which Attorney-General Sir Henry Yelverton delivered a Luciferian epitaph for Raleigh. He had lived ‘as a star at which the world hath gazed’, he told the judges, ‘but stars may fall, nay, they must fall when they trouble the sphere wherein they abide’.

The end came on a chilly morning in late October 1618. The crowd’s sympathies were this time squarely with Raleigh. At a time when Elizabethan England was already receding into mythology, his erstwhile arrogance had come to seem fitting to an age of giants, and the doomed quest for El Dorado had tempered its edge with tragedy. The panache with which he now lost his head would propel him into the pantheon of great dead Englishmen. After a long speech that ended with an invitation to the spectators to join him in prayer, the sexagenarian, etched and grey, thumbed the blade of the axe that would kill him. It was ‘a sharp medicine’, he murmured, ‘but it will cure all diseases’. He knelt at the block and, told that he was facing westwards – away from the traditionally presumed direction of the Last Judgment – declined to switch direction. ‘What matter how the head lie, so [long as] the heart be right?’ he asked. His last words, refusing the headsman’s offer of a blindfold, were suitably swashbuckling: ‘Think you I fear the shadow of the axe, when I fear not the axe itself?’ The show was over – and with a final flourish, Raleigh threw his arms above his shoulders to call down the curtain.

Whether Raleigh was in fact innocent of the treason charges laid against him in 1603 is as questionable today as it was four centuries ago. He certainly had reason to fear that his influence would decline after Elizabeth’s death, and although his score sheet against Spain was impressive, he lived in an age when allegiances were honoured in the breach as much as in the observance. For what it was worth, Cobham reasserted Raleigh’s guilt at his own trial and maintained the accusation ‘upon the hope of his soul’s resurrection’ as he stood upon his scaffold.

Raleigh’s trial was important, however, for reasons that transcended the truth or falsity of the charges. The sight of him struggling for his life against a phantom accuser, damned by documents that were dealt out like a blackjack hand, was so palpably unfair that it almost immediately became a model for how things ought not to be done. Several of the king’s advisers – including Edward Coke – urged James in 1618 to give him a second trial, with witnesses; and although the monarch remained ruthless as ever, reminding them that Raleigh had ‘by his wit…turned the hatred of men into compassion,’ the proceedings would fall ever deeper into disrepute. Raleigh himself claimed at his condemnation that one of the judges had repented of his role at Winchester from his deathbed. By 1656, an anonymous pamphleteer was swearing that Coke had privately expressed shock at the jury’s verdict, while another writer recorded that the jurors had knelt to beg Raleigh’s forgiveness after convicting him. All the stories were as incredible as they sound, but the speed with which they were recounted and believed is a sign of just how emblematic the trial had become. The myths would in time contribute to ideas even more far-reaching: that courts were there to limit state power as much as to express it; that prosecutions could be unfair even if a defendant was guilty; and that justice was done only if seen to be done. And they did so simply because transparency had made the unfairness of the alternative so manifest.

An ironic postscript is that few people did more to promote the vision of liberty that would accompany the sanctification of Raleigh’s trial than Sir Edward Coke himself. In 1606, King James promoted his Attorney-General to Chief Justice of Common Pleas, at which point the erstwhile lapdog clenched his teeth around the hand that had fed him, and bit – hard. For the two decades that remained of his life, he would not let go. At a time of political turmoil, when thinkers across Europe were pondering the ideal relationship between God, monarch, and subject, James had written a treatise arguing that kings were above human laws and followed them voluntarily, if at all. Coke, by way of several court rulings, case reports and a monumental textbook, begged to differ, insisting that rulers obeyed because they had to. To cut a very long story extremely short, his arguments won. The Puritan rebels who chopped off the head of James’s son, Charles I, cited him as their legal authority in 1649. Towards the end of the next century, his work would enjoy an even more lasting impact – inspiring American revolutionaries from John Adams to Thomas Jefferson, when they too concluded that it was time to cut their rulers down to size.

Raleigh’s claim that criminal trials were public arguments over the meaning of testimony would, of course, be vindicated, but a crucial issue remained unresolved. The ancient notion that jurors themselves were somehow witnesses had always made for a certain tension as to their proper role. It was widely agreed that juries decided questions of fact, but those decisions could be regarded as statements so sacrosanct as to be unquestionable. They might alternatively be seen as lies, tantamount to perjury. Which view prevailed depended simply on whether judges would presume to decide that jurors had breached their oaths to God.

The chances that they would do so had built throughout the 1500s, as England’s expanding middle class grew ever more likely to stand up to their social superiors. By the end of the century, it was becoming increasingly common for judges to fine jurors – sometimes for returning a supposedly corrupt verdict, and sometimes simply for breaching the ancient rules requiring that they deliberate without food, drink, and fire. John Mucklow was imprisoned and fined twenty shillings in the mid 1570s after being caught smuggling preserved barberries, sugar candy, and liquorice into the jury room. A decade later, several jurors who were taking too long over their verdicts were searched and again found to be in possession of contraband: two who confessed to eating figs were fined £5 apiece, and three who admitted possession, but not consumption, of apples, had to pay forty shillings. Such disputes turned on fruit, but they reflected an issue that was anything but trifling: the ancient question of who in the community wielded the ultimate power to judge.

The case that brought the conflict to a head – the prosecution of two Quaker activists in 1670 – could hardly have been more perfectly designed to do so. In a country still rolling with the aftershocks of a civil war that had seen a monarch executed, the Church abolished, and each institution revived within a dozen years, deference was in short supply. Nonconformists such as the Puritans had led the revolt against King Charles I, while countless other sects had thrived during the subsequent eclipse of Anglicanism, and few were friendly towards the notion of secular rule. Several had theological objections to tax. Some had a problem with human law in its entirety. All were anathema to the restored forces of royalism.

Almost as soon as it took power, the new government had enacted statutes to reassert the authority of the official Church. The most draconian was the Conventicle Act of 1664, which made it an offence – punishable by death, if repeated – to participate in any act of nonconformist worship involving more than four people. Over the next few years, thousands of prosecutions were launched, and hundreds of dissenters were transported or executed for violating the statute. The Act came up for renewal in 1670, provoking protests across England. One of the demonstrations, staged by Quakers, would give rise to the most significant jury trial in history.

The Quakers were a threatening bunch from the standpoint of the status quo. Founded by a man who claimed a hundred and fifty miracles to his credit and named for their tendency to tremble and yelp while at prayer, adherents rarely met a convention that they did not despise. Some regarded clothes as superfluous and perambulated in the nude. Others went in the opposite direction and kept their hats on in the presence of social superiors – an expression of sartorial independence that sometimes inspired no less distress than the nudity. Several set out to undermine the greatest certainty of all, staging enthusiastic attempts to raise the dead. The eccentricity was accompanied by a dynamism that put them at the front line of resistance during the 1660s, and when word spread in August 1670 that they would be holding a prayer meeting at a hall in London’s Gracechurch Street, the authorities took no chances. Would-be worshippers arrived to find the doors padlocked. Among those worshippers, however, were two men who realized that the closure made a protest easier than ever. Turning to a crowd that was perhaps a hundred times the size permitted by the Conventicle Act, a 25-year-old called William Penn began to speak. Within minutes, he and a 42-year old linen draper by the name of William Mead were under arrest.

Battle was joined two weeks later at the Sessions House of the Old Bailey. The Fire of London had reduced much of the capital to waste four years before and its courthouse had been temporarily relocated into a wooden shack; but the surroundings belied the significance of the moment. The people present, who included five aldermen and a hundred or so spectators, were in for a magnificent show.

Presiding over the court were London’s two most senior judges – its staunchly royalist^* Lord Mayor, Samuel Starling, and Recorder Thomas Howel – and they were resolved from the outset to make an example of the nonconformist troublemakers. Both defendants were kept waiting in the malodorous holding cell for the sitting’s entire first day, while the court processed assorted ruffians and cutpurses instead, and when it reconvened two days later, the judges were ready with a second surprise. Aware of the Quakers’ touchiness about headgear, Samuel Starling had determined to cite both men for contempt as soon as they entered court – and when an over-eager bailiff accidentally upset his plans, he refused to be denied. ‘Sirrah, who bid you put off their hats?’ he yelled. ‘Put [them] back on again.’ The defendants were duly re-hatted, whereupon Thomas Howel fined them forty marks (a sum that could have paid for another hundred hats) for refusing to take them off again.

The authorities had charged both men with addressing a tumultuous assembly, a violation of common-law custom – doubtless concerned that a charge under the Conventicle Act might turn the trial into a direct assault on the statute. But Penn was not someone who could be so easily wrongfooted. A portrait painted some four years earlier shows an elegant and self-possessed young man, and although a committed religious rebel, he was easily the social and intellectual equal of his judges. The son of an admiralty official acquainted with King Charles II, he had studied at Oxford – before, on his own account, being ‘banisht’ – and the contrariness that then took him into several jails had not stopped him from picking up a legal education at Lincoln’s Inn. And like any eighteenth-century Quaker, he could talk the talk at least as well as he walked the walk. Told the charges against him, he asked that they be put in writing because they were too long to remember and then demanded to know ‘upon what law you ground my indictment’. Thomas Howel replied it was based on ‘the common law’. And where, Penn asked, might that be found? The flustered judge took refuge in Latin, declaring that it was lex non scripta – or unwritten law – and a thing ‘which many have studied thirty or forty years to know’. If it was that hard to understand, countered Penn, it did not sound very common at all.

It was presumably crowd-pleasing stuff, but the trial itself, like most hearings of the period, was a perfunctory affair. Four men trooped through the witness box to state that Mead had been at Gracechurch Street, that Penn had ‘preached’ words that they could not recall, and that there had been several hundred people on the scene. When the defendants tried to address the jurors – contending that they should not be convicted because they had not incited violence, and pleading with them to remember that their verdicts would affect tens of thousands of lives – they were swiftly dragged into the holding cell. As Penn continued his speech from below the court, Howel told the jurors that they had heard evidence proving the indictment and should now return their verdict. There is no doubt what he expected it to be.

But events then took an unexpected turn. The jurors asked for time to consider their decision – a request that was itself becoming unusual by the late seventeenth century – and it was an hour and a half before they returned. Eight were ready to convict, but four of them, led by a wealthy Puritan sugar merchant named Edward Bushel, were not prepared to do so. Starling declared Bushel ‘impudent’, and the jurors were sent away to think again. If the rebuke was supposed to fortify the majority, the judges were in for a shock. By the time the jurors returned, Bushel had been elected their foreman, and he now declared that Penn was ‘guilty of speaking in Grace-Church Street’. Since speech alone had never been a crime under English law, non scripta or otherwise, the finding amounted to a verdict of not guilty. ‘Is that all?’ barked Howel. ‘You had as good say nothing.’ Sent off again, the jurors asked for a pen, ink, and paper and returned with a verdict in writing. Penn was guilty only of speaking, they repeated, and Mead was not guilty, full stop. Howel coldly informed them that they would not be going home until they had reversed both decisions. The court would meanwhile adjourn for the night. And after reminding the bailiff of his traditional duty to withhold food, drink, and fire from the jurors, he added the novel instruction that they be denied a chamber pot.

The court reassembled at seven the next morning. Hungry, thirsty, and smelly the twelve men in the box may have been, but they were even more resolute. Bushel, asked for a verdict, repeated that Penn was guilty of speaking in Gracechurch Street. ‘To an unlawful assembly?’ inquired Starling, menacingly. ‘No, my Lord,’ replied Bushel, ‘we give no other verdict than what we gave last night; we have no other verdict to give.’ Starling, livid, declared that he would cut Bushel’s throat if he ever got the chance. The jurors were sent away again.

They eventually returned to reconfirm that they had nothing to add, and the judges finally snapped. An apoplectic Starling abused them for their choice of foreman, and threatened to slit Bushel’s nose. When Penn protested, the Lord Mayor told the jailer to gag him and spluttered that he should also be chained to a stake. Recorder Howel was no happier. ‘Till now’, he bellowed, ‘I never understood the reason of the…Spaniards, in suffering the inquisition among them: and certainly it will never be well with us, till something like unto the Spanish Inquisition be in England.’ The twelve men, he declared, would either convict or starve. Another night in Newgate’s fetid dungeons followed. But the jurors were no longer teetering on the brink. They had hit the bottom and bounced. On the following morning, they formally returned not guilty verdicts against both defendants.

Thomas Howel imposed swingeing fines on everyone, with indefinite jail terms for those who would not pay – and Bushel, along with three of his colleagues, chose jail. Their resilience was remarkable. Typhoid and dysentery were so endemic in prisons of the time that around one in ten inmates died awaiting trial, and no judge had ever before entertained a complaint against another’s decision to punish his jurors. But after they had spent ten weeks in Newgate’s excremental gloom, Lord Chief Justice Vaughan agreed to hear their request to be released – and he then freed them by way of the most significant legal ruling in the history of the jury trial. Two people, he insisted, could honestly disagree even when bound by oath. After almost half a millennium, the idea that a juror swore to what he knew rather than to what he believed was finally laid to rest. ‘The Verdict of a Jury, and Evidence of a Witness are very different things,’ explained Vaughan. ‘A witness swears but to what he hath heard or seen…but a jury-man swears to what he can infer and conclude from the testimony of such witnesses by the act and force of his understanding…’

Vaughan’s assertion of a power to clamp down on oppressive judges, made in a ruling known to lawyers ever since as Bushel’s Case, was soon being complemented by political changes on a broader front. Less than two decades after he handed down his judgment, the ‘Glorious Revolution’ of 1689 reasserted parliamentary control of the monarchy, finally putting paid to its ancient claims of absolute prerogatives. In the new climate, the judicial advantages previously guaranteed to the executive were steadily eroded. Accused traitors, and then felons in general, were given the right to call witnesses in the early 1700s and judges increasingly permitted prisoners to instruct counsel over the next few decades.

The consequences for criminal justice would be dramatic. Trials had for several centuries been free-for-alls, at which lawyers appeared only to represent the state and only in the most serious cases, while judges, jurors and defendants argued amongst themselves in the large majority. But the arrival of defence counsel, which was complemented by the professionalization of prosecution, turned trials into structured disputes over the meaning of legal history – or ‘precedent’, as the lawyers called it. As they cited from their tomes and cross-referred to each other’s cases, countless rules and conclusions were soon being firmed up. By the middle of the eighteenth century, the customary suspicion of certain types of evidence such as hearsay was being formalized into rules of admissibility and exclusion. Towards its end, an even more far-reaching change took place as the presumption of innocence, previously little more than an aspiration, was promoted to axiom.

The jury was simultaneously propelled into the moral stratosphere. The myth of justice that had been gripping England since the time of Walter Raleigh had found its institutional hero: a body of men so brave it would go to jail for the underdog, and so selfless it would forgo its collective chamber pot for love of liberty. There would always be some controversialists prepared to point out that jurors slept on the job and hanged children as well, but the most influential legal writer of the eighteenth century, William Blackstone, was not one of them. In his mammoth compilation of the criminal law, still annually updated and cited in England’s courts, he assured readers during the 1760s that judgment by twelve men ‘indifferently chosen, and superior to all suspicion’ was the ‘sacred bulwark’ of the nation’s liberties.

The system was also laying down deep roots far beyond Britain. King James had guaranteed jury trials in 1606 to the first emigrants to Virginia, and although settlers’ leaders would try nevertheless to monopolize power with magistrates’ courts, juries soon became commonplace across colonial America. William Penn himself crossed the Atlantic twelve years after his 1670 trial and the founding laws of Pennsylvania, the province that he established in honour of his father, promised that twelve men would have ‘the final judgment’ in every case. By 1735, when a New York jury acquitted a printer called John Peter Zenger in the teeth of a judge’s instructions that the truth of his words could be no defence to a charge of sedition, American jurors were flexing their muscles at least as much as their English counterparts. They were also idealized no less than in England. The colonists read Blackstone and devoured the anti-executive arguments of Edward Coke, harbouring hopes and grievances that were virtually defined by England’s political struggles, and the right to an open jury trial was close to the top of their wish list. It was the only guarantee contained in all twelve state constitutions that existed in 1776, while the federal constitution that was framed at Philadelphia eleven years later envisaged that the US government would suspend access to courts only in the event of ‘rebellion or invasion’.

There were, however, less exalted reasons for the popularity of juries. Trials simply offered a lot to see. Courts were becoming more packed than ever, regularly punctuated by fights and occasionally the scene of gunshots and murders.^* Entire communities could be agitated: perhaps most literally when the weight of spectators at East Grinstead in 1684 caused the floor to collapse, and perhaps most metaphorically during the notorious witchcraft prosecutions of Salem eight years later.^* Attendance also became an essential part of any respectable person’s education during the eighteenth century, as edifying as a trip to the local condemned cells or lunatic asylum. Foreign travellers, hoping to glean lessons about English liberty, became regulars. Gentlemen in the public gallery, eager to contribute to the increasingly legalistic debates, would sometimes interrupt to identify defects in the indictment and advance points in favour of a defendant.

The Old Bailey retained its particular cachet, with one observer complaining by 1786 that ‘no one who hath any real business to do can have access’, but provincial sittings, or assizes, offered a show that was in many ways even more fascinating. Judges would roll into town twice each year, solemn as sphinxes in their crimson robes and longbottomed wigs and preceded by up to twenty trumpeters and javelin-wielding officials. As they were wined and dined by the ruddy squires of the county, surrounding dungeons trembled into life. Prisoners clanked their way to the courthouse through the night, and after a sermon and swearing-in ceremony the next morning, the jurors would get to work on their case load – typically deciding within minutes whether to acquit or convict. Anyone found guilty of murder would receive an immediate sentence of death, but other convicts would be holed up to await the assizes’ grand finale. The judge would, on the appointed day of judgment, work his way up the ladder of wickedness and close the proceedings with one of two props. If he was going to leave with no blood on his hands, he would pull on a pair of white gloves. Rather more often, he would deliver his final sentences wearing the black cap of death.

The media mirrored and magnified the appeal of such occasions. Literacy had been sufficiently prevalent to generate junk journalism since the late sixteenth century, and by the eighteenth, true-crime pamphlets were routinely vying for public attention alongside other staples of the hack printer: recent comets, monstrous births, and so on. Continental writers, excluded from courtrooms and usually subject to censorship, could sometimes exploit the sexual scandals that were played out in ecclesiastical courts but were otherwise restricted to writing about the crime that preceded a trial and the punishment that followed it. Their British counterparts faced no such obstacles.

A twenty-four-page booklet had set the ball rolling in August 1566 with an account of the prosecution of Agnes Waterhouse – condemned for witchery with a diabolical dog and a white cat called Satan – and trial reports were soon a fixture on the pedlar’s cart. The cut-and-thrust of cross-examination usually offered ready-made dialogue. Even when absent the drama could be gripping: a report from the early seventeenth century, for example, told how the blanched corpses of three children began to bleed reproachfully when their murderous father obeyed a judge’s order to call out their name. One popular 1606 story neatly combined speech and silence, telling of a poor little dumb girl who had managed to croak accusingly at the man who had torn out her tongue notwithstanding that the jurors could ‘not see so much as [a] stumpe’ in her mouth. The evidence evidently spoke no less eloquently: the defendant went to the gallows.

By the 1670s, suitably salacious and brutal trials were being reported within days of a verdict. Eager readers in 1698 might have chosen to consider the depravity of Captain Edward Rigby, pilloried for attempted sodomy after picking up William Minton at a firework display in St James’s Park. Rigby pleaded guilty in the hope of a quiet life, but the court itself ordered that its proceedings be published. All literate England could soon pay to recoil from the news that he had ‘put his Privy Member Erected into Minton’s Hand; kist him, and put his Tongue into Minton’s Mouth’ before expounding on the antiquity of anal intercourse and placing a ‘Finger to [his] Fundament’. There were salutary lessons to suit every taste. Someone disinclined to weigh the wages of sin might, for example, have preferred to contemplate the quality of mercy – perhaps by pondering the luck of Mary Price, acquitted of bestiality in 1704 notwithstanding her housemate’s claims to have watched through the floorboards as she copulated with a dog.

But although jury trials were offering much to mull over by the eighteenth century, another aspect of criminal justice was still far more visible: the punishments that followed them. Tattooed and maimed convicts stalked the streets of every city, while lesser deviants sat in stocks and dangled from pillories, braving rotting animals and vegetables if they were lucky and storms of rocks if they were not. The displays were a feature of the landscape from Nuremberg to New York, but they were becoming especially impressive in England. Although a 1718 statute providing for transportation to the colonies removed plenty of convicts from the public gaze, public mutilations continued apace and the number of capital offences also soared – from about fifty in 1688 to well over two hundred in 1810. Few villages lacked for a whipping post, while executions could turn the humblest provincial town into a fairground, drawing thousands of visitors and pumping a fortune into the local economy.

London hosted the grandest spectacle of all, spewing out capital offenders from Newgate every six weeks for transportation across the capital to the Tyburn gallows. The procession had grown increasingly animated during the seventeenth century, and by the 1720s it was tumultuous indeed. The condemned travelled in open carts, noosed and astride their own coffins, as church bells tolled and crowds cheered them on their way. They wore anything they chose – perhaps velvet, scarlet, and silk with a white cockade to protest their innocence, perhaps a simple burial shroud to acknowledge their guilt – while high-spirited onlookers handed up tankards of ale, asking only that the prisoners buy a round on the way back. The jollity reached a climax under the triangular beams of Tyburn. Convicts who spoke with grace or humour received roars of approbation, while the surly and the sullen were booed and pelted. When the bodies were finally ‘turned off’ and the souls ‘launched into eternity’, to use the clichés of the day, chaos would erupt. While acquaintances of the dying tried to shorten their agonies by leaping for the dribbling, jerking legs, hangmen auctioned their clothes and emissaries from London’s surgeons’ colleges hopped from rope to rope in the hope of scavenging an unwanted cadaver.

The commotion, macabre even by the standards of the time, regularly attracted tens of thousands of spectators and exercised a fascination that spanned class and nationality. César de Saussure, a young Swiss gentleman who whiled away several months in London during the 1720s, was impressed enough to describe it at length in a letter to his mother. ‘You see most amusing scenes between the people who do not like the bodies to be cut up and the messengers the surgeons have sent for the bodies,’ he enthused. ‘Blows are given and returned before they can be got away, and sometimes in the turmoil the bodies are quickly removed and buried.’

Amusing it may have been, but the increasing frequency and intensifying violence of executions, at a time when juries were being sanctified and courtrooms were formulating rigid rules to guarantee fairness, had a peculiarly paradoxical effect. Trials became almost perverse rituals of cruelty and mercy, at which the dignity afforded the defendant resembled nothing so much as the head start given a fox. Whether a suspect lived or died was in many ways less important than that the chase proceeded by the rules. The responsibility for punishment was meanwhile shuffled around court until it belonged to everyone and no one, and all were free to lament the fate of the person they were killing. At a time when English and American juries were becoming celebrated for their ‘pious perjury’ – undervaluing stolen goods so as to spare petty thieves the gallows – they continued to convict most capital offenders (a full two-thirds in England, of whom 90 per cent in London were under twenty-one). The role played by judges was no more coherent. While they typically warned juries of the awful consequences of leniency, they simultaneously repaired the damage behind the scenes – recommending so many pardons that three out of four English death sentences were being commuted by the end of the eighteenth century.

It all made for emotional tensions aplenty. After Chief Justice Ryder had to deal with a young woman charged with killing her 6-month-old baby in 1754, he confided to his diary that he had been so affected by his own speech to the jurors ‘that the tears were gushing out several times against my will. It was discerned by all the company – which was large – and a lady gave me her handkerchief dipped in lavender water to help me.’ He nevertheless encouraged the jury to put aside any doubts about the defendant’s sanity, and remained sufficiently stoical to sentence her to death, with an instruction that her body be dissected for the benefit of medical science. Even more lachrymose was the 1777 forgery trial of Dr William Dodd. ‘The judges, the jury, the counsel, the spectators, all the world was bathed in tears,’ observed a bemused German visitor. Horrid though it sounds, the jury convicted after ten minutes and Dodd also hanged without a pardon.

For much of the eighteenth century, courtroom and gallows seemed to complement each other. Foreign visitors to England were repeatedly struck by the contrast between the safeguards of its trials and the brutality of its punishments, but in an era of Georgian gentility, when sentimentality and rigour were different sides of the same moral coin, the English rarely seemed to perceive a contradiction. Just as the pamphleteers began their accounts with the foul deed and ended with its just deserts, courtroom spectators were generally no less eager to see the deadly denouements. But towards the century’s end, the balance finally began to tilt away from executions, and would continue to tip for several more decades. The reason was not that the courtroom contest became even more thrilling. It was that punishments began literally to disappear.

Eighteenth-century thinkers, convinced that sufficiently rational laws could facilitate progress and possibly even perfection, were always fascinated by crime and punishment, and as each escalated in tandem they could not but wonder what was going wrong. Some argued that the brutality was counter-productive – pointing out, for example, that marking convicts by clipping their ears and slitting their nostrils was not likely to assist their employment prospects. Equally common, if more abstruse, was the belief that penalties had become decoupled from the crimes for which they were imposed, and that the symbolic links needed tightening. Thomas Jefferson was among those who took such a view, and in 1778 he drafted a law for Virginia that would have poisoned poisoners and castrated rapists. The American also believed, for reasons which are sadly not recorded, that it was appropriate to drill half-inch holes through the noses of female polygamists. His attempt to rationalize Virginia law was never enacted.

Capital punishment, which almost everyone agreed was not doing enough to deter crime, inspired particular concern. Some argued that its imposition was so capricious as to be useless, and gazed admiringly towards the proverbially enlightened despotisms of Russia and the Austro-Hungarian Empire, where it had just been abolished. More common was the belief that executions were inherently sound, and that a tad more terror would repair such defects as the system might possess. Britain’s Parliament in 1752 accordingly authorized judges to order the posthumous tarring and chaining of criminals’ corpses, as and when they thought that that would frighten more people for longer. Others envisaged even more dramatic ways to maximize the fear. James Boswell proposed in 1783 that convicts should be hanged without hoods ‘that the distortions may be seen’. In an ideal world, he argued, criminals would have their heads publicly smashed open with an iron mallet, before being jugulated with a machete and hacked apart with an axe.

But at the same time, there were others who felt that the public displays of aggression, no matter how well intentioned, were in fact doing more harm than good. As far back as 1725, one writer had warned that hangings were attended disproportionately by drunks, prostitutes, and pickpockets, and that potential criminals were enjoying the killings far too much to be deterred by them. Over subsequent decades, crowds had become increasingly violent, frequently trying to free prisoners and often launching assaults, up to and including murder, on the executioners and surgeons present. The phenomenon, seen across Europe, inspired British legislators in 1783 to replace the Tyburn processions with stationary executions outside Newgate. But the volatility also gave rise to far more radical proposals for reform. Tinkering with the spectacle was no solution to rising crime, argued some – because publicity itself was the problem.

The reasoning had first been set out in 1751. Henry Fielding, a London magistrate as well as the author of classics such as Tom Jones, had set out to explore why London seemed to be experiencing an upsurge in robberies. He assumed, like almost everyone else, that inefficient penalties were the primary cause; but instead of suggesting that their violence be increased, he proposed that it be hidden. According to Fielding, it was the delay between trial and execution that created pity for capital offenders, and it was the opportunity granted those offenders to address the gallows crowd that turned them into victims or heroes. Swiftness and secrecy were therefore essential. Prisoners should be hanged in the yard of the court in which they had been tried, within four days of conviction, watched in silence by the robed and bewigged judges who had sentenced them. ‘Nothing…can be imagined more terrible,’ he urged – and writer that he was, he knew that it was imagination rather than sight that produced fear. Shakespeare’s Macbeth served to illustrate the point. ‘A murder behind the scenes’, he explained, ‘will affect the audience with greater terror than if it was acted before their eyes.’^*

Fielding’s proposal was a little too avant-garde to be enacted, but it would influence legislators for the next century and heralded an era in which power would be expressed as much by concealment as by display. Branding irons, whipping posts, and pillories were being abandoned across the Western world by the late eighteenth century. Do-gooders, inspired by the hope of making convicts work, pray, and see the error of their ways, would soon perfect a new kind of prison – the penitentiary or reformatory – which made its debut in the eastern United States at the turn of the century. The causes driving the change varied considerably from country to country (a major impetus in Britain was the American Revolution of 1776, which robbed the country of its largest penal dustbin overnight), but the shift was seen throughout Europe and America. And during the nineteenth century it began to fuel demands to conceal the most visible punitive spectacle of all – the public execution.

Those who campaigned most strongly for reform were the politicians who most favoured the death penalty – because they feared that the unruliness and unpleasantness of the public ritual was beginning to threaten its continued existence. For precisely opposite reasons, resistance was led by abolitionists – men like Samuel Bowne, a Quaker Assemblyman in New York, who argued against the concealment of public throttlings in 1834 on the grounds that popular disgust would soon lead ‘to the entire abolition of capital punishment’. And the supporters of death were soon making the running. Their first success came with a ban on public executions in Rhode Island in 1833 – followed within two years by similar laws in Pennsylvania, New York, New Jersey, and Massachusetts. British opponents of capital punishment fought a similar battle to keep the horror visible, but they too were destined to be outmanoeuvred. On 29 May 1868, three days after one last hanging – before a seething crowd that yelled ‘body-snatcher’ at the executioner as he cut down the corpse – supporters of the death penalty were able finally to hide it behind prison walls.

Public hangings very probably originated as a sacrificial rite and their concealment in many ways restored the mystery that a century of rationalism had threatened to dispel. For the most immediate effect, just as abolitionists had feared, was to stabilize an institution that had at certain points in the early 1800s begun to seem very wobbly indeed. British hangmen would continue secretly to snap necks for another century. In the United States, where men and women are still poisoned and gassed in hidden chambers, popular support for the death penalty may well be stronger than it was two hundred years ago.

But the change also had another consequence – for as the punishments that had exemplified Western justice for centuries vanished, criminal trials assumed a more prominent position than ever before. New York produced America’s first true-crime journal, the National Police Gazette, in 1845 – a decade after its legislature did away with public hangings – while the Illustrated Police News first hit London’s news-stands in 1864, just four years before Britain’s Parliament followed suit. A similar shift was seen elsewhere in Europe. In Prussia, the first German state to end public executions, the same statute that relocated the beheadings to prison yards in 1851 opened the kingdom’s trials to the public. Equivalent laws did the same throughout the rest of Germany over the next three decades, and by the end of the century day trips to court had become a popular pastime among middle-class families across the country.

In France, the story was a little different. The legal reforms that followed the Revolution of 1789 threw its courts open to the public and guaranteed defendants a right to counsel. They also gave ordinary citizens a role in judging criminal cases, creating a form of the jury that spread, through cultural influence and Napoleonic campaigns, from Madrid to Moscow over the next three-quarters of a century. The country bucked the penal trend by continuing to stage public executions right up to 1939, later than any other country in the Western world, but its experience of publicity also exemplified the growing significance of the criminal trial.

Over the course of the eighteenth century, France’s liberal thinkers had developed a deep admiration for the transparency of English criminal justice. ‘In England no trial is secret,’ Voltaire had explained in an impassioned attack on the inquisitorial system in 1762, ‘because the punishment of crime is meant to be a lesson to the public…and not vengeance for one person. Witnesses testify in open court and any trial of interest is reported in the newspapers.’ Attitudes towards the jury itself had always been considerably more equivocal however, and French jurists were very soon having second thoughts about its wisdom.

In 1804, soundings were taken from seventy-five courts across the nation as to whether juries should be retained. The Anglophilia of men like Voltaire was a thing of the past – not least, because France was at war with Britain – and the fifty-two jurisdictions that replied were split precisely in half. One court that expressed an especially firm non was that of Doubs. Jury service, argued its judges, was a task that could appeal only to citizens as primitive as those of England. ‘At the theatre, the Englishman only cares for ghosts, lunatics, dreadful criminals and drawnout murders; he scurries to animal fights, and probably regrets the passing of gladiatorial contests,’ they observed. ‘Who can tell if he does not seek the functions of a juror for the pleasure of watching a criminal struggling with his conscience, with the death that awaits him? The Frenchman, on the contrary, is delicate in all his tastes; he flees from any sight which could disagreeably awaken his sensitivity; could he take any pleasure in wielding the bleeding sword of justice?’

The assessment was an audacious one. Frenchmen had just guillotined thousands of their compatriots, and possessed such enthusiasm for the bleeding sword of justice that they would watch its blade rise and fall in public for another 135 years. The sight of squirming criminals was also doing little to repulse them: the world’s first newspaper dedicated exclusively to court reporting, the Gazette des tribunaux, was launched within months of the 1791 law that had thrown open the doors of France’s trials. But the judges of Doubs were chauvinistic rather than simply wrong. Prurience had always been potential in English trials, even if its source had been publicity rather than juries. And as France moved from inquisitorial secrecy to routine openness, it would take to the voyeuristic pleasures of the courtroom with delight.

France’s cities, like others throughout mainland Europe, were soon making strenuous efforts not merely to accommodate a growing popular interest in courtrooms, but to promote it. ‘Palaces of Justice’ were built across the country during the nineteenth century: newfangled monuments to open justice, packed to their triforia with crucifixes, statuary, and all the trappings of tradition that its absence could demand. As congregants flocked in, it became increasingly common to issue tickets in order that the classes and sexes could be properly segregated – a development simultaneously seen in England – and the trials of lowlifes were soon pulling in the haut monde. The December 1869 prosecution of Jean-Baptiste Troppmann for multiple murder inspired particular interest. His case had been intriguing Parisians from the moment that the six victims had been laid out behind plate glass at the city morgue three months before, and more than twenty thousand applications were made for admission passes. Only several hundred were lucky enough to make it into the trial chamber, a magnificent judicial temple inaugurated just a year before, but few who did so would have been disappointed. For three days they trained opera glasses on the dock, perhaps picking up clues from Troppmann’s physiognomy, and pondered the table that dominated the room – spread with bloody garments, blades, and a jar swimming with the stomach contents of one of the deceased. Aristocrats, socialites and workers attended in force, and so many women were present that Le Petit journal marvelled how ‘strange’ it was that ladies ‘raised in velvets, lace, and silk’ should display such ‘mad unbridled passion…for the coarse details and repugnant debates’ of the case.

That particular concern was widely shared. When Adelaide Bartlett stood trial at the Old Bailey in 1886 for chloroforming her husband – in a case involving a love triangle and liberal condom use – the judge publicly condemned the relish of women in the public gallery for evidence that he and the jurors could hear only with shame. By 1896 one French doctor was expressing not only distaste, but fear. The libertines of fin-desiècle France had developed something of a vogue for throwing acid into their lovers’ faces, and Paul Aubry proposed that even reading about a vitrioleuse might be enough to launch the female reader (who was ‘often not very intelligent’) on some passionate mischief of her own. ‘What else does she need to excite [her] imagination?’ he asked rhetorically. ‘It is easy to throw vitriol at someone [and] one is sure to be acquitted and to be the subject of gossip for forty-eight hours.’

But whatever the other moral consequences of the intensifying courtroom drama, the Troppmann trial suggested that the weaker sex was made of rather sterner stuff than their would-be protectors realized. Following the defendant’s conviction, several distinguished Parisiennes wrote to Le Figaro to complain that the newspaper’s correspondent had not acknowledged their presence at court. René de Pont-Just, though as suspicious of female spectators as the next man, was at least capable of irony. He drily explained that the courtroom audience had included ‘both ladies and women’ and that he had held his tongue for fear of confusing the danses with the femmes.

Jury trial had come a long way since a desperate murderer called Alice had squealed on five of her co-accused at Westminster in 1220. Just how far was marked, in ways both geographic and historical, by the 1880 publication of Fyodor Dostoyevsky’s The Brothers Karamazov. Juries had been introduced to Russia fourteen years before and the novel concludes with the prosecution of Dmitri Karamazov for the murder of his father, in a courtroom that would have been familiar to readers from Paris to San Francisco. Tickets have been snapped up by luminaries from miles around, lorgnettes twinkle in the audience, and counsel joust across a table stacked with a bloodied silk dressing gown, a blood-stiffened handkerchief, a pistol, a pestle, and a slender pink ribbon. The spectacle, as compelling as it is mysterious, somehow implicates everyone present – and the shared shame is spelled out when Dmitri’s brother, Ivan, deliriously characterizes the spectators’ lust for bread and circuses as equal to any act of parricide.

Ivan Karamazov had very personal reasons for his distress, but it was shared by right-thinking folk everywhere. French commentators and English hacks rarely reported a trial without tut-tutting at the onlookers. If it was not the fact of their femininity, it might be their eagerness to applaud, their willingness to bring food to court, or their morbid curiosity – attacked, of course, in articles that went on to describe every twitch and tremor of the defendant.

The concerns all echoed those that had been expressed not so long before about public executions. But the bread and circuses of the courtroom constituted a very different diversion from the gallows spectacle. Sobs, applause, and whispers had replaced the howls of hatred. Packed lunches had taken the place of Tyburn’s gin-soaked procession. And although the verdict in a high-profile case could still bring traffic to a halt – gridlocking the entire West End of London in the case of one murder acquittal in 1907 – crowds now preferred queueing to rioting. A decision not to issue tickets might cause the lines to form long before sunrise, and the crown might over-flow far beyond the court itself, but spectators always knew their place. When Dr Hawley Harvey Crippen was arraigned for his wife’s murder in 1910 – at a trial which saw a shred of her skin passed around on a dish – a multitude of the ticketless swarmed outside the Old Bailey until police steered them into an empty court. Only after several hours of picnicking and chattering did they realize that they had been duped – at which point they drifted home.

The jury trial had further to travel, but by the turn of the twentieth century it had come of age. Born from magical rituals and only tempered by reason, it had always enacted the difference between right and wrong as much as it had decided it. And with the end of public executions, it had become the only judicial show in town: a touch of evil for an era that no longer thought it seemly for crowds to jump at the legs of a dying man.