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The first thing any legal system needs is a set of laws. | 0:00:29 | 0:00:33 | |
And I've come to Rochester in Kent | 0:00:33 | 0:00:36 | |
to see the earliest-known English law code. | 0:00:36 | 0:00:39 | |
Established in the fifth century, | 0:00:41 | 0:00:43 | |
Kent is thought to have been the first Anglo-Saxon kingdom. | 0:00:43 | 0:00:47 | |
Rochester's imposing cathedral and castle | 0:00:47 | 0:00:50 | |
testify to the region's historical importance. | 0:00:50 | 0:00:53 | |
But Rochester boasts yet another treasure. | 0:00:53 | 0:00:56 | |
Which, for a lawyer such as me, is even more significant. | 0:00:56 | 0:01:00 | |
Stored in the council archives is a book of enormous importance. | 0:01:08 | 0:01:13 | |
Not just to the law, but to the entire English-speaking world. | 0:01:13 | 0:01:17 | |
This is the Textus Roffensis, | 0:01:18 | 0:01:20 | |
or the Rochester Book. | 0:01:20 | 0:01:22 | |
And it contains a number of documents, | 0:01:22 | 0:01:25 | |
but the most significant is the first. | 0:01:25 | 0:01:28 | |
And it's this. | 0:01:28 | 0:01:30 | |
A few pages... | 0:01:31 | 0:01:34 | |
of a text... | 0:01:34 | 0:01:36 | |
dating back to 600. | 0:01:36 | 0:01:39 | |
It's not only the first writing | 0:01:39 | 0:01:45 | |
in English that we have, | 0:01:45 | 0:01:48 | |
so it's the beginning of English literature, | 0:01:48 | 0:01:51 | |
it's the first law code that we have. | 0:01:51 | 0:01:54 | |
It's a very simple list of fines or compensation | 0:01:59 | 0:02:04 | |
for accidents, injuries, wrongs. | 0:02:04 | 0:02:08 | |
Gif feax fang geword. L. sceatta tobote. | 0:02:09 | 0:02:16 | |
If hair seizure takes place, | 0:02:17 | 0:02:20 | |
50 sceatta as compensation. | 0:02:20 | 0:02:24 | |
Gif eare of weord aslagen... | 0:02:24 | 0:02:28 | |
If an ear becomes struck off, | 0:02:28 | 0:02:31 | |
one is to compensate with 12 shillings. | 0:02:31 | 0:02:35 | |
If one strikes off a thumb, 20 shillings. | 0:02:35 | 0:02:39 | |
And this is perhaps the most sensitive one. | 0:02:39 | 0:02:43 | |
If someone disables a genital member, | 0:02:43 | 0:02:46 | |
one is to buy him off with three person payments. | 0:02:46 | 0:02:51 | |
A person payment was the monetary value given to a man's life. | 0:02:52 | 0:02:57 | |
In this instance, the victim was compensated | 0:02:57 | 0:03:00 | |
for the children he would no longer be able to father. | 0:03:00 | 0:03:03 | |
We tend to think that the compensation culture | 0:03:05 | 0:03:09 | |
is something imported from America. | 0:03:09 | 0:03:12 | |
But here it is at the very start of English law. | 0:03:12 | 0:03:16 | |
If laws are the essential basis of any legal system, | 0:03:25 | 0:03:28 | |
the next step is setting up institutions to apply them. | 0:03:28 | 0:03:32 | |
Courts. | 0:03:32 | 0:03:35 | |
Anglo-Saxon society was ordered into areas known as hundreds - | 0:03:35 | 0:03:39 | |
so-called, according to one theory, | 0:03:39 | 0:03:41 | |
because they may have contained roughly 100 homesteads. | 0:03:41 | 0:03:45 | |
These had their own assemblies to deal with minor cases. | 0:03:45 | 0:03:49 | |
More serious disputes and crimes | 0:03:49 | 0:03:51 | |
were referred up to shire courts, | 0:03:51 | 0:03:53 | |
forerunners of our county courts. | 0:03:53 | 0:03:57 | |
This mound goes by the characterful name of Scutchamer Knob. | 0:03:58 | 0:04:03 | |
Sometimes corrupted to Scotsman's knob. | 0:04:03 | 0:04:06 | |
Anyway, in Anglo-Saxon times, the shire court of Berkshire met here | 0:04:06 | 0:04:11 | |
and you couldn't have missed it. | 0:04:11 | 0:04:13 | |
Sited prominently on the ridgeway, | 0:04:18 | 0:04:21 | |
assemblies here would have been visible for miles around. | 0:04:21 | 0:04:25 | |
Sitting in judgement in the shire court | 0:04:29 | 0:04:31 | |
might have been a senior cleric, such as a bishop, | 0:04:31 | 0:04:34 | |
especially when a dispute involved the Church. | 0:04:34 | 0:04:37 | |
Or otherwise, a representative of the King. | 0:04:37 | 0:04:40 | |
A figure known as a shire-reeve, or sheriff. | 0:04:40 | 0:04:45 | |
And trials would be resolved using a remarkably simple method of proof. | 0:04:46 | 0:04:52 | |
Early trials were based on oaths. | 0:04:52 | 0:04:54 | |
To prove your innocence, all you had to do | 0:04:54 | 0:04:57 | |
was to swear an oath that you weren't guilty | 0:04:57 | 0:04:59 | |
and to get people to come here to swear to your honesty. | 0:04:59 | 0:05:03 | |
If you could rustle up the prescribed level of support, | 0:05:03 | 0:05:07 | |
you were off the hook. | 0:05:07 | 0:05:08 | |
Just how many oath helpers you needed | 0:05:10 | 0:05:12 | |
depended on your social status and the nature of the alleged offence. | 0:05:12 | 0:05:18 | |
One 10th century text stipulates 36 people were required | 0:05:18 | 0:05:22 | |
in a case of arson or murder. | 0:05:22 | 0:05:25 | |
To us, it all sounds very odd and open to abuse. | 0:05:25 | 0:05:31 | |
But this was a society suffused with religious faith. | 0:05:31 | 0:05:36 | |
To lie on oath was to risk damnation. | 0:05:36 | 0:05:40 | |
And your friends might be less than keen to support you | 0:05:40 | 0:05:44 | |
if they considered you a liability | 0:05:44 | 0:05:46 | |
who could compromise their good standing in the community. | 0:05:46 | 0:05:50 | |
So, yes, it was simple, | 0:05:50 | 0:05:53 | |
but that needn't mean it was ineffective or unjust. | 0:05:53 | 0:05:59 | |
The Anglo-Saxons didn't distinguish between what we now regard | 0:05:59 | 0:06:03 | |
as civil and criminal law. | 0:06:03 | 0:06:06 | |
So oaths could be used to resolve property disputes, as well. | 0:06:06 | 0:06:10 | |
Of course, if two opposing parties swore contradictory oaths, | 0:06:10 | 0:06:14 | |
it meant at least one of them was committing perjury. | 0:06:14 | 0:06:18 | |
Lying on oath. | 0:06:18 | 0:06:20 | |
Would this system work now? | 0:06:20 | 0:06:23 | |
With their souls at stake, | 0:06:23 | 0:06:25 | |
would Anglo-Saxons have been more reluctant to lie | 0:06:25 | 0:06:28 | |
than we might be today when we swear on oath to tell the truth? | 0:06:28 | 0:06:33 | |
Some of the best physical evidence | 0:06:40 | 0:06:42 | |
for how justice operated in later Anglo-Saxon England | 0:06:42 | 0:06:45 | |
has been found on the outskirts of Winchester. | 0:06:45 | 0:06:49 | |
The archaeologist Andrew Reynolds | 0:06:49 | 0:06:52 | |
took me to Harestock, close to the old Roman road. | 0:06:52 | 0:06:55 | |
What was found here that makes it so special? | 0:06:55 | 0:06:58 | |
Some archaeological excavation | 0:06:58 | 0:07:00 | |
uncovered the remains of 16 individuals | 0:07:00 | 0:07:03 | |
buried in a series of graves. | 0:07:03 | 0:07:05 | |
And the modern name Harestock | 0:07:05 | 0:07:07 | |
is derived from the old English Shaffod Stockan, | 0:07:07 | 0:07:09 | |
which means, literally means heads on stakes. | 0:07:09 | 0:07:12 | |
It basically tells us that it's an Anglo-Saxon | 0:07:12 | 0:07:15 | |
judicial execution cemetery. | 0:07:15 | 0:07:18 | |
So you can imagine here in the Anglo-Saxon period, | 0:07:21 | 0:07:23 | |
a traveller moving along the, the road behind us, | 0:07:23 | 0:07:27 | |
we're at a particularly prominent place in the landscape here. | 0:07:27 | 0:07:31 | |
You can see we're on rising ground. So a very prominent place. | 0:07:31 | 0:07:34 | |
A series of poles with heads on, on sticks. | 0:07:34 | 0:07:37 | |
Very dramatic sight for travellers. | 0:07:37 | 0:07:39 | |
As a lawyer, I put great emphasis on the quality of the evidence. | 0:07:39 | 0:07:44 | |
The remains recovered from the Harestock site | 0:07:44 | 0:07:47 | |
are now kept in storage by Winchester museums. | 0:07:47 | 0:07:50 | |
Andrew showed me one example of a typical victim. | 0:07:50 | 0:07:54 | |
Now, this is astonishingly well preserved | 0:07:54 | 0:07:57 | |
for somebody who has been in the ground a thousand years. | 0:07:57 | 0:08:00 | |
And in laymen's eyes, there's nothing here to indicate | 0:08:00 | 0:08:04 | |
anything other than the sad death of a young person. | 0:08:04 | 0:08:07 | |
Well, it was a very different picture | 0:08:07 | 0:08:09 | |
when the body was actually taken out of the ground. | 0:08:09 | 0:08:11 | |
Because rather than the hands being to either side, as they are here, | 0:08:11 | 0:08:15 | |
when the body was excavated, they were found crossed over each other, | 0:08:15 | 0:08:19 | |
underneath or behind the back. | 0:08:19 | 0:08:21 | |
And that's a clear indication, really, that you've got foul play | 0:08:21 | 0:08:24 | |
or something that's not quite usual going on there. | 0:08:24 | 0:08:28 | |
Um...but the greatest indication that this is not a normal burial | 0:08:28 | 0:08:34 | |
is the fact that the head, | 0:08:34 | 0:08:35 | |
which you can see here in the correct anatomical position, | 0:08:35 | 0:08:38 | |
was actually found by the side of the leg. | 0:08:38 | 0:08:42 | |
This was a clear case of execution by beheading. | 0:08:44 | 0:08:47 | |
A punishment not just for committing murder, but theft, too. | 0:08:47 | 0:08:52 | |
So, how was decapitation done? | 0:08:58 | 0:09:01 | |
Well, almost certainly with a sword, | 0:09:01 | 0:09:03 | |
probably with the hands tied behind the back. | 0:09:03 | 0:09:06 | |
If you take a look at this bone here, | 0:09:06 | 0:09:09 | |
where the blade of the sword has caught the underside of the jaw | 0:09:09 | 0:09:12 | |
when the person's executed. | 0:09:12 | 0:09:14 | |
-And that would be one blow, would it? -That would be one blow. | 0:09:14 | 0:09:18 | |
In the absence of a police force, | 0:09:18 | 0:09:20 | |
the deterrent for crime | 0:09:20 | 0:09:22 | |
was the threat of mutilation or death. | 0:09:22 | 0:09:26 | |
Take notice of these heads on stakes...and beware! | 0:09:26 | 0:09:31 | |
Like much of Europe, the later Anglo-Saxons | 0:09:40 | 0:09:44 | |
developed a way of determining proof | 0:09:44 | 0:09:46 | |
which used the power of the elements of water and of fire. | 0:09:46 | 0:09:51 | |
And which invited God himself to intervene in the trial. | 0:09:51 | 0:09:56 | |
This was the Judicium Dei. | 0:09:58 | 0:10:00 | |
The judgement of God. | 0:10:00 | 0:10:02 | |
Trial by ordeal. | 0:10:02 | 0:10:05 | |
If you were suspected of a crime, | 0:10:05 | 0:10:07 | |
you were subjected to a ritualised, | 0:10:07 | 0:10:10 | |
but painful and dangerous test. | 0:10:10 | 0:10:13 | |
God would come to the aid of the innocent, | 0:10:13 | 0:10:16 | |
but for the guilty, there would be no such comfort. | 0:10:16 | 0:10:20 | |
The ordeal was neither torture nor punishment. | 0:10:21 | 0:10:25 | |
It was a mode of proof. | 0:10:25 | 0:10:27 | |
Only if you failed were you punished. | 0:10:27 | 0:10:30 | |
Because of their religious element, | 0:10:33 | 0:10:36 | |
ordeals were supervised by the clergy. | 0:10:36 | 0:10:39 | |
Two main kinds of ordeal were used in England. | 0:10:39 | 0:10:43 | |
The first involved carrying a piece of red-hot iron in your bare hand. | 0:10:43 | 0:10:49 | |
Before the ordeal, the priest called upon God | 0:10:49 | 0:10:52 | |
to bless the hot iron | 0:10:52 | 0:10:54 | |
so that it would be a pleasing coldness | 0:10:54 | 0:10:57 | |
to those who carry it with justice and fortitude, | 0:10:57 | 0:11:01 | |
but a burning fire to the wicked. | 0:11:01 | 0:11:04 | |
The accused had to walk a few paces holding the iron. | 0:11:06 | 0:11:11 | |
The hand was then bandaged. | 0:11:11 | 0:11:13 | |
And after three days, was inspected to see if it were healing. | 0:11:13 | 0:11:17 | |
If the wound were clean, that was proof of your innocence. | 0:11:19 | 0:11:23 | |
But if it had started to fester, you were deemed guilty. | 0:11:23 | 0:11:27 | |
The second kind of ordeal was more dangerous. | 0:11:32 | 0:11:35 | |
You were bound and lowered into a body of sanctified water. | 0:11:35 | 0:11:40 | |
And your guilt was determined by whether you floated or sank. | 0:11:40 | 0:11:45 | |
Now, you might assume that sinking meant you were guilty. | 0:11:45 | 0:11:49 | |
After all, you were much more likely to drown. | 0:11:49 | 0:11:52 | |
But the belief was that the water was so pure as to repel sin. | 0:11:52 | 0:11:57 | |
Sinking indicated innocence. | 0:11:57 | 0:12:01 | |
Floating was proof of guilt. | 0:12:01 | 0:12:04 | |
Ordeals like these may seem barbaric to us, | 0:12:06 | 0:12:09 | |
but they were carried out in Christian Europe for centuries. | 0:12:09 | 0:12:13 | |
I asked legal historian John Hudson what factors determined | 0:12:13 | 0:12:17 | |
whether you were sent for ordeal in the first place. | 0:12:17 | 0:12:20 | |
They seem to have been often proposed as a way of settling cases | 0:12:20 | 0:12:24 | |
that you couldn't settle in other ways. | 0:12:24 | 0:12:26 | |
For example, if you don't have any factual proof, | 0:12:26 | 0:12:29 | |
no marks on the person who's accused, | 0:12:29 | 0:12:31 | |
no evidence that they're holding onto stolen goods, | 0:12:31 | 0:12:34 | |
no blood on their hands, | 0:12:34 | 0:12:36 | |
then there's a chance that no-one will know who committed the offence. | 0:12:36 | 0:12:39 | |
And then the likelihood is that they would have to go to trial by ordeal. | 0:12:39 | 0:12:43 | |
The number of people who actually undergo the ordeal, | 0:12:43 | 0:12:46 | |
having been threatened with it, may well be much smaller. | 0:12:46 | 0:12:49 | |
It seems to have been a way of trying to scare people | 0:12:49 | 0:12:52 | |
either into confessing, or very often, into settling. | 0:12:52 | 0:12:56 | |
When the Normans invaded in 1066, | 0:12:57 | 0:13:00 | |
they brought with them their own preferred method of ordeal. | 0:13:00 | 0:13:04 | |
In trial by combat, God would grant victory to the righteous. | 0:13:09 | 0:13:14 | |
This was seen by the wealthy as a more dignified means | 0:13:14 | 0:13:20 | |
of resolving civil disputes than hot iron or water. | 0:13:20 | 0:13:25 | |
It could also be used in criminal cases. | 0:13:25 | 0:13:28 | |
Good! | 0:13:28 | 0:13:30 | |
What was the purpose of the combat? | 0:13:30 | 0:13:32 | |
Was it to kill your opponent, or just bludgeon them into submission? | 0:13:32 | 0:13:36 | |
Well, for a civil case, | 0:13:36 | 0:13:38 | |
which would be about large amounts of money or about land, | 0:13:38 | 0:13:42 | |
you would probably try to bludgeon them into submission. | 0:13:42 | 0:13:45 | |
And one opponent is on the ground and calls out, "I yield." | 0:13:45 | 0:13:49 | |
My Lord! | 0:13:52 | 0:13:54 | |
Criminal cases were an altogether less dignified affair, | 0:13:54 | 0:13:59 | |
often involving the kind of riff-raff | 0:13:59 | 0:14:01 | |
who couldn't afford a decent blade. | 0:14:01 | 0:14:04 | |
This wooden stake would have been a far more likely weapon | 0:14:04 | 0:14:07 | |
in trial by combat in a criminal case. | 0:14:07 | 0:14:10 | |
And, um...in so many words, | 0:14:10 | 0:14:12 | |
you try to hit your opponent where it hurts. | 0:14:12 | 0:14:15 | |
Head, shoulder, arms, | 0:14:15 | 0:14:18 | |
knees, feet, um...and all the male places. | 0:14:18 | 0:14:21 | |
Would you like to try it? | 0:14:21 | 0:14:22 | |
-So I would go like that, or that, or boink. -Yes. | 0:14:22 | 0:14:25 | |
And what about that? | 0:14:25 | 0:14:26 | |
Oh, yes. I think so. | 0:14:26 | 0:14:28 | |
There is no reason to believe | 0:14:28 | 0:14:29 | |
that this wouldn't have been sharpened to a very nasty point | 0:14:29 | 0:14:32 | |
and it may even have had nails in it. | 0:14:32 | 0:14:34 | |
Although it was a trial by combat, | 0:14:36 | 0:14:39 | |
it was often hard to distinguish between trial and punishment. | 0:14:39 | 0:14:43 | |
When you beat your opponent to the ground, you might as well kill them. | 0:14:44 | 0:14:48 | |
Because afterwards, they'll be taken away and get executed, anyway. | 0:14:48 | 0:14:51 | |
Either for the crime they were initially accused of, | 0:14:51 | 0:14:54 | |
or if it's the other party that gets beaten to the ground, | 0:14:54 | 0:14:58 | |
for having committed major acts of perjury. | 0:14:58 | 0:15:01 | |
What might happen if you lost and survived | 0:15:06 | 0:15:09 | |
is told in one of the few accounts of an English judicial duel. | 0:15:09 | 0:15:14 | |
A certain Thomas of Eldersfield near Gloucester | 0:15:14 | 0:15:17 | |
was defeated in combat by a man he'd been accused of wounding. | 0:15:17 | 0:15:21 | |
Now, rather than having him hanged, | 0:15:21 | 0:15:24 | |
the judges, being merciful, | 0:15:24 | 0:15:26 | |
ordered that he merely be castrated and blinded. | 0:15:26 | 0:15:31 | |
The victor and his family set about this task with a degree of relish, | 0:15:31 | 0:15:37 | |
throwing his eyes on the ground and using his testicles as footballs - | 0:15:37 | 0:15:42 | |
the local lads kicking them playfully at the girls. | 0:15:42 | 0:15:45 | |
In the reign of Henry II, | 0:15:59 | 0:16:01 | |
one important group remained beyond the grasp of the common law. | 0:16:01 | 0:16:06 | |
The clergy. | 0:16:06 | 0:16:08 | |
Henry's attempts to deal with that problem | 0:16:09 | 0:16:12 | |
would come to define his reign | 0:16:12 | 0:16:14 | |
and reach a head here in Canterbury. | 0:16:14 | 0:16:17 | |
The clergy enjoyed their own legal system. | 0:16:19 | 0:16:22 | |
Canon law. | 0:16:22 | 0:16:24 | |
If you were in holy orders, | 0:16:25 | 0:16:26 | |
you were subject solely to the control of the Church. | 0:16:26 | 0:16:29 | |
The Crown couldn't touch you. | 0:16:30 | 0:16:33 | |
No matter how serious the crime, | 0:16:34 | 0:16:36 | |
a cleric would merely be ordered by his bishop to repent of his sins, | 0:16:36 | 0:16:41 | |
whereas a layman might be mutilated or hanged. | 0:16:41 | 0:16:45 | |
That is unless they claimed Benefit of Clergy. | 0:16:45 | 0:16:51 | |
Benefit of Clergy provided | 0:16:51 | 0:16:53 | |
perhaps the biggest loophole in English legal history. | 0:16:53 | 0:16:56 | |
On the flimsiest of grounds, you could claim to be a cleric, | 0:16:56 | 0:17:00 | |
thus removing your sanctified soul | 0:17:00 | 0:17:03 | |
from the grasp of the secular authorities. | 0:17:03 | 0:17:06 | |
Eventually, the benefit could be claimed | 0:17:06 | 0:17:09 | |
merely by reciting the first verse of Psalm 51. | 0:17:09 | 0:17:13 | |
Have mercy upon me, O, God, according to thy loving kindness. | 0:17:13 | 0:17:19 | |
According unto the multitude of thy tender mercies, | 0:17:19 | 0:17:23 | |
blot out my transgressions. | 0:17:23 | 0:17:26 | |
Royal justice was unable to prosecute any member of the clergy | 0:17:26 | 0:17:31 | |
who had committed a crime. | 0:17:31 | 0:17:33 | |
This was perhaps the most serious challenge to Henry's authority. | 0:17:33 | 0:17:37 | |
So when Henry appointed his close friend Thomas Becket | 0:17:37 | 0:17:41 | |
as Archbishop of Canterbury, | 0:17:41 | 0:17:43 | |
he did so in the hope that under Becket's leadership, | 0:17:43 | 0:17:48 | |
the Church would conform and co-operate, | 0:17:48 | 0:17:51 | |
and those of its clergy who committed serious offences | 0:17:51 | 0:17:54 | |
would be subjected to royal justice. | 0:17:54 | 0:17:57 | |
But Becket had his own agenda to maintain church authority. | 0:17:57 | 0:18:02 | |
And he fell foul of the King, leading Henry to proclaim, | 0:18:02 | 0:18:06 | |
"Will no-one rid me of this turbulent priest?" | 0:18:06 | 0:18:11 | |
What happened next | 0:18:12 | 0:18:14 | |
is one of the most famous stories of Medieval England. | 0:18:14 | 0:18:18 | |
CHORAL SINGING | 0:18:18 | 0:18:20 | |
On the night of 29th December, 1170, | 0:18:23 | 0:18:27 | |
the story goes Becket was at evening prayer here in Canterbury Cathedral | 0:18:27 | 0:18:33 | |
when he was confronted by four knights loyal to the King. | 0:18:33 | 0:18:37 | |
They struck him down with repeated blows from their swords. | 0:18:42 | 0:18:46 | |
And they were so ferocious that they sliced off the crown off his head | 0:18:46 | 0:18:51 | |
so that, in the words of an eyewitness, | 0:18:51 | 0:18:53 | |
"the blood white with the brain | 0:18:53 | 0:18:56 | |
"and the brain no less red from the blood, | 0:18:56 | 0:18:59 | |
"dyed the floor of the cathedral." | 0:18:59 | 0:19:02 | |
It's unlikely Henry actually ordered Becket's murder. | 0:19:08 | 0:19:13 | |
His archbishop's death undermined all that the King wanted | 0:19:13 | 0:19:17 | |
as public opinion rallied around the Church. | 0:19:17 | 0:19:22 | |
Becket became a martyr. | 0:19:22 | 0:19:24 | |
And a repentant Henry felt he could no longer touch the issue | 0:19:24 | 0:19:28 | |
of priests who had broken the law. | 0:19:28 | 0:19:31 | |
It would take centuries before the clergy | 0:19:31 | 0:19:33 | |
were subject to the secular law. | 0:19:33 | 0:19:36 | |
And as for Benefit of Clergy, | 0:19:36 | 0:19:38 | |
that would not be abolished until 1827. | 0:19:38 | 0:19:42 | |
The reign of Henry II witnessed a profound change | 0:19:52 | 0:19:57 | |
in the development of English justice. | 0:19:57 | 0:20:00 | |
The King himself introduced a unified legal system | 0:20:00 | 0:20:04 | |
for the whole country. | 0:20:04 | 0:20:06 | |
A common law. | 0:20:06 | 0:20:09 | |
He also presided over the development of the jury. | 0:20:09 | 0:20:12 | |
Early in his reign, Henry had already established | 0:20:14 | 0:20:18 | |
a system of roving royal justices, | 0:20:18 | 0:20:21 | |
what we would now refer to as judges, | 0:20:21 | 0:20:23 | |
who travelled the country ensuring this common law was being enforced | 0:20:23 | 0:20:28 | |
by each and every shire court, | 0:20:28 | 0:20:31 | |
and claiming all the fines that were due to the King. | 0:20:31 | 0:20:34 | |
Now, Henry went one step further, | 0:20:36 | 0:20:39 | |
decreeing that members of the public | 0:20:39 | 0:20:41 | |
should play an essential role in this legal process. | 0:20:41 | 0:20:46 | |
These so-called juries of presentment | 0:20:46 | 0:20:49 | |
soon became common practice. | 0:20:49 | 0:20:52 | |
Juries of presentment didn't consider evidence | 0:20:55 | 0:20:58 | |
and determine guilt or innocence. | 0:20:58 | 0:21:00 | |
Instead, they were representatives of local communities | 0:21:00 | 0:21:04 | |
who had to report under oath | 0:21:04 | 0:21:06 | |
all the crimes committed in their area | 0:21:06 | 0:21:10 | |
and to name those they deemed responsible. | 0:21:10 | 0:21:13 | |
The gradual emergence of this new system received an unexpected boost | 0:21:14 | 0:21:20 | |
when suddenly, in 1215, Pope Innocent III | 0:21:20 | 0:21:24 | |
banned the clergy from presiding over trials by ordeal, | 0:21:24 | 0:21:29 | |
effectively withdrawing the Church from the legal process. | 0:21:29 | 0:21:33 | |
Now it was no longer the Almighty, | 0:21:34 | 0:21:37 | |
but a rather less exalted tribunal | 0:21:37 | 0:21:39 | |
that would determine the outcome. | 0:21:39 | 0:21:42 | |
The judge would ask the members of the jury | 0:21:42 | 0:21:44 | |
when declaring whether the accused were guilty or not | 0:21:44 | 0:21:48 | |
to give a truthful answer. | 0:21:48 | 0:21:51 | |
In the Anglo-French of the time, "aver dit". | 0:21:51 | 0:21:56 | |
Our verdict. | 0:21:56 | 0:21:57 | |
The first known English jury trial took place in 1220. | 0:21:58 | 0:22:04 | |
A woman called Alice, condemned for murder, | 0:22:04 | 0:22:07 | |
accused five others of criminality. | 0:22:07 | 0:22:10 | |
They chose the judgement of their neighbours - | 0:22:10 | 0:22:14 | |
in the phrase of the time, | 0:22:14 | 0:22:16 | |
putting themselves for good and ill upon a verdict. | 0:22:16 | 0:22:22 | |
These neighbours decided that one man was lawful, | 0:22:22 | 0:22:25 | |
but that four were thieves. | 0:22:25 | 0:22:26 | |
And they were sent to the noose. | 0:22:26 | 0:22:28 | |
By the late 13th century, | 0:22:30 | 0:22:31 | |
such juries had become a familiar part of English law. | 0:22:31 | 0:22:35 | |
Unlike modern ones, they didn't weigh evidence, | 0:22:35 | 0:22:38 | |
but came to a decision based on their own knowledge or belief. | 0:22:38 | 0:22:43 | |
For ordinary people to have such power | 0:22:43 | 0:22:46 | |
in a society that was, in other respects, | 0:22:46 | 0:22:49 | |
full of inequalities, was revolutionary. | 0:22:49 | 0:22:54 | |
Your peers had been given an authority | 0:22:54 | 0:22:56 | |
that had previously been the preserve of God. | 0:22:56 | 0:23:00 | |
Your guilt was now decided in public | 0:23:00 | 0:23:03 | |
by members of the public, | 0:23:03 | 0:23:06 | |
independent of the state. | 0:23:06 | 0:23:09 | |
The jury. | 0:23:09 | 0:23:10 | |
The institution that most defines English justice truly begins here. | 0:23:10 | 0:23:18 | |
In the mid 17th century, in the years leading up to the Civil War, | 0:23:27 | 0:23:32 | |
England had a two-tier legal system. | 0:23:32 | 0:23:34 | |
The common law, and a system under royal authority... | 0:23:34 | 0:23:38 | |
..which allowed torture, and enabled the King to do as he saw fit. | 0:23:40 | 0:23:43 | |
Its court was held in the now notorious Star Chamber. | 0:23:45 | 0:23:50 | |
Near where I'm standing was the site of the court of Star Chamber. | 0:23:50 | 0:23:54 | |
Today, a byword for injustice and oppression. | 0:23:54 | 0:23:58 | |
But in its inception and throughout most of its history, | 0:23:58 | 0:24:01 | |
it represented precisely the opposite. | 0:24:01 | 0:24:04 | |
Star Chamber came to the forefront during the reign of Henry VII | 0:24:07 | 0:24:12 | |
after the Wars of the Roses, | 0:24:12 | 0:24:14 | |
a time of great turmoil in Tudor England | 0:24:14 | 0:24:17 | |
when nobles ran their territories like Mafia bosses | 0:24:17 | 0:24:21 | |
and disputes could end in what we would now call contract killings. | 0:24:21 | 0:24:27 | |
The nobility seemed beyond the law. | 0:24:27 | 0:24:30 | |
They could intimidate juries and bribe judges. | 0:24:30 | 0:24:35 | |
So the Crown developed a court outside the normal common law. | 0:24:35 | 0:24:40 | |
It had powers that could break this English Mafia. | 0:24:40 | 0:24:44 | |
No amount of money could buy this court. | 0:24:44 | 0:24:48 | |
And soon, the previously untouchable nobles | 0:24:48 | 0:24:52 | |
found themselves in the dock. | 0:24:52 | 0:24:54 | |
It may look like an upmarket country pub, | 0:24:55 | 0:24:58 | |
but this was where England's most powerful men clashed. | 0:24:58 | 0:25:03 | |
Justice was dispensed under this ceiling of gold stars, | 0:25:03 | 0:25:08 | |
from which the court gets its name Star Chamber. | 0:25:08 | 0:25:12 | |
It had no jury that could be bribed or intimidated by the mighty. | 0:25:13 | 0:25:17 | |
Instead, errant aristocrats were interrogated and judged | 0:25:17 | 0:25:23 | |
by members of the government itself. | 0:25:23 | 0:25:26 | |
The power of Star Chamber grew considerably under the Stuarts. | 0:25:28 | 0:25:33 | |
But by the time of Charles I, | 0:25:34 | 0:25:36 | |
it was widely recognised | 0:25:36 | 0:25:38 | |
as a symbol of misuse | 0:25:38 | 0:25:40 | |
and of the abuse of power | 0:25:40 | 0:25:43 | |
by the King and his circle. | 0:25:43 | 0:25:46 | |
In 1629, Charles dismissed Parliament | 0:25:47 | 0:25:50 | |
and took control of the country | 0:25:50 | 0:25:54 | |
in what is now known as the Eleven Years' tyranny. | 0:25:54 | 0:25:58 | |
During this period, Charles used Star Chamber to raise taxes | 0:25:58 | 0:26:03 | |
by fining the wealthy on petty charges, | 0:26:03 | 0:26:06 | |
but also to clamp down on religious descent and political opposition. | 0:26:06 | 0:26:11 | |
Under this ceiling studded with stars, | 0:26:15 | 0:26:18 | |
disfiguring and degrading punishments | 0:26:18 | 0:26:21 | |
were imposed by cruelly imaginative judges, | 0:26:21 | 0:26:25 | |
the creatures of the King. | 0:26:25 | 0:26:28 | |
The victims of such treatment were those bold or rash enough | 0:26:28 | 0:26:32 | |
openly to oppose Charles' arbitrary rule. | 0:26:32 | 0:26:37 | |
Some had their noses slit. | 0:26:37 | 0:26:41 | |
Others, their ears cut off. | 0:26:41 | 0:26:44 | |
Public displays of royal displeasure. | 0:26:44 | 0:26:47 | |
Those reluctant to incriminate themselves or others | 0:26:49 | 0:26:54 | |
might be persuaded to change their minds by a trip to the Tower. | 0:26:54 | 0:27:02 | |
It was home to the rack. | 0:27:06 | 0:27:09 | |
Bridget Clifford from the Royal Armouries | 0:27:11 | 0:27:14 | |
revealed the Tower's dark secret. | 0:27:14 | 0:27:17 | |
For the poor unfortunates upon which this was used, | 0:27:17 | 0:27:21 | |
what would have been the procedure? | 0:27:21 | 0:27:23 | |
You would be set upon it, | 0:27:23 | 0:27:25 | |
the ropes would be applied to your ankles and to your wrists, | 0:27:25 | 0:27:29 | |
and then it would be slowly tightened by rotating the drum. | 0:27:29 | 0:27:34 | |
One master of the rack was said to have boasted of racking a prisoner, | 0:27:40 | 0:27:45 | |
"One good foot longer than even God made him." | 0:27:45 | 0:27:50 | |
What allegations or offences would this have been applied to? | 0:27:51 | 0:27:54 | |
Mainly treason. | 0:27:54 | 0:27:56 | |
Now, what constitutes that threat | 0:27:56 | 0:27:59 | |
can be a physical threat. | 0:27:59 | 0:28:01 | |
It can also be the fact that your religion | 0:28:01 | 0:28:04 | |
is seen to be standing against that | 0:28:04 | 0:28:07 | |
that the country approves of at the time. | 0:28:07 | 0:28:09 | |
For over a decade, Parliament's doors were locked. | 0:28:15 | 0:28:19 | |
The King ruled alone and supreme. | 0:28:19 | 0:28:22 | |
These dark days remained until a costly religious war with the Scots | 0:28:22 | 0:28:27 | |
drained the royal finances. | 0:28:27 | 0:28:30 | |
Finally, in 1640, Charles was forced to recall Parliament to get money. | 0:28:30 | 0:28:36 | |
Now back in the game, the MPs aimed to destroy | 0:28:37 | 0:28:40 | |
the hated institution of Charles' rule. | 0:28:40 | 0:28:44 | |
Torture warrants were made illegal. | 0:28:44 | 0:28:47 | |
No attempt to revive them has ever been made since. | 0:28:47 | 0:28:51 | |
And the victims of Star Chamber, | 0:28:51 | 0:28:54 | |
those who had lost money, liberty or ears, | 0:28:54 | 0:28:58 | |
called on Parliament to rein in | 0:28:58 | 0:29:00 | |
this other symbol of royal absolutism. | 0:29:00 | 0:29:05 | |
But they didn't just rein it in. | 0:29:05 | 0:29:08 | |
On July 5th, 1641, | 0:29:08 | 0:29:10 | |
Charles was forced to sign Star Chamber out of existence. | 0:29:10 | 0:29:15 | |
I'm here in the Parliamentary Archives | 0:29:22 | 0:29:25 | |
to see a document devised and drafted | 0:29:25 | 0:29:28 | |
largely by Edward Coke, | 0:29:28 | 0:29:30 | |
and whose significance to our constitutional history | 0:29:30 | 0:29:34 | |
is second only perhaps to that of Magna Carta itself. | 0:29:34 | 0:29:38 | |
It is the Petition of Right. | 0:29:38 | 0:29:42 | |
Edward Coke, the driving force behind the Petition of Right, | 0:29:44 | 0:29:48 | |
was perhaps the most influential judicial figure of his time. | 0:29:48 | 0:29:53 | |
During the reigns of James I and Charles I, | 0:29:54 | 0:29:58 | |
Coke had bravely fought for the supremacy of the common law | 0:29:58 | 0:30:02 | |
over the power of the monarchy. | 0:30:02 | 0:30:05 | |
So here it is, the Petition of Right itself. | 0:30:05 | 0:30:10 | |
Now, it may not look a great deal. | 0:30:10 | 0:30:13 | |
It's a piece of vellum with a lot of rather nicely-written words on them. | 0:30:13 | 0:30:18 | |
But, of course, its significance | 0:30:18 | 0:30:20 | |
is far more than just the document we have before us. | 0:30:20 | 0:30:24 | |
It's only one page, but it helped change the course of history. | 0:30:25 | 0:30:30 | |
It's hardly a humble petition, but that's how it's phrased. | 0:30:32 | 0:30:35 | |
"Humbly do the Commons point out to the King the law of the land. | 0:30:35 | 0:30:41 | |
"What had always been. | 0:30:41 | 0:30:43 | |
"The civil liberties, the liberties of the subject | 0:30:43 | 0:30:47 | |
"enshrined by Parliamentary Statute." | 0:30:47 | 0:30:49 | |
And then they go onto the meat of the complaint. | 0:30:49 | 0:30:52 | |
That, "Despite all these enactments in the past, | 0:30:52 | 0:30:55 | |
"things have gone horribly wrong. | 0:30:55 | 0:30:58 | |
"And in particular, | 0:30:58 | 0:31:00 | |
"diverse of His Majesty's subjects | 0:31:00 | 0:31:03 | |
"had of late been imprisoned. | 0:31:03 | 0:31:06 | |
"And when they were brought before His Majesty's courts | 0:31:06 | 0:31:10 | |
"to challenge the conditions of their detention, | 0:31:10 | 0:31:14 | |
"they were denied justice | 0:31:14 | 0:31:17 | |
"and they were sent back to prison without cause." | 0:31:17 | 0:31:20 | |
Edward Coke was clear this would never happen again, insisting, | 0:31:21 | 0:31:26 | |
"That no man hereafter | 0:31:26 | 0:31:28 | |
"be compelled to pay taxes without Parliamentary authority | 0:31:28 | 0:31:33 | |
"or be imprisoned without cause." | 0:31:33 | 0:31:36 | |
Any individual who was imprisoned | 0:31:38 | 0:31:40 | |
could demand that their jailor legally justified their actions. | 0:31:40 | 0:31:44 | |
This idea central to our liberty | 0:31:44 | 0:31:48 | |
is known as habeas corpus. | 0:31:48 | 0:31:51 | |
It was a principle whose power | 0:31:51 | 0:31:53 | |
would grow immensely over subsequent decades. | 0:31:53 | 0:31:56 | |
Coke's ideals were even incorporated | 0:31:57 | 0:32:00 | |
into the Constitution of the United States of America. | 0:32:00 | 0:32:04 | |
A descendant of the Petition of Right itself. | 0:32:04 | 0:32:09 | |
This is a document that is not just significant in 17th century England. | 0:32:09 | 0:32:14 | |
This is a document that is one of the foundation documents | 0:32:14 | 0:32:17 | |
of civil liberties. | 0:32:17 | 0:32:19 | |
In the space of a thousand years, | 0:32:28 | 0:32:30 | |
the law had evolved from being a rough code to settle local disputes | 0:32:30 | 0:32:34 | |
in Anglo-Saxon England | 0:32:34 | 0:32:36 | |
into an independent institution | 0:32:36 | 0:32:39 | |
so powerful that it was capable of killing the King of England. | 0:32:39 | 0:32:45 | |
Charles I and the monarchy had been swept aside. | 0:32:49 | 0:32:55 | |
But in 1649, there was a fear | 0:32:55 | 0:32:58 | |
that England had simply swapped one tyrannical regime for another. | 0:32:58 | 0:33:03 | |
In an attempt to impose order in the chaos unleashed by the Civil War, | 0:33:04 | 0:33:08 | |
Oliver Cromwell himself was stamping down on dissenters | 0:33:08 | 0:33:13 | |
with the religious groups, like Ranters, | 0:33:13 | 0:33:16 | |
or political movements, like the Levellers. | 0:33:16 | 0:33:19 | |
Radical groups could no longer look to Parliament | 0:33:20 | 0:33:24 | |
to uphold the law in the cause of liberty. | 0:33:24 | 0:33:27 | |
Individuals would have to deploy the law themselves. | 0:33:27 | 0:33:31 | |
And none more so than the leading Leveller, John Lilburne. | 0:33:32 | 0:33:38 | |
He believed that the time had now come | 0:33:39 | 0:33:42 | |
for all the men of England to claim their ancient liberties. | 0:33:42 | 0:33:45 | |
He exploited the power of the printing press | 0:33:45 | 0:33:48 | |
to secretly publish and distribute his radical views, | 0:33:48 | 0:33:52 | |
which quickly came to infuriate the authorities. | 0:33:52 | 0:33:56 | |
They'd repeatedly lock him up to shut him up, | 0:33:56 | 0:34:00 | |
but Lilburne had a crucial legal weapon on his side. | 0:34:00 | 0:34:04 | |
Habeas corpus. | 0:34:04 | 0:34:06 | |
And he thought that this piece of paper could be his key to freedom. | 0:34:06 | 0:34:11 | |
Here's how habeas corpus works in practice. | 0:34:13 | 0:34:15 | |
A document known as a writ is delivered to the jailor, saying, | 0:34:15 | 0:34:20 | |
"We direct you to have the body..." | 0:34:20 | 0:34:22 | |
- habeas corpus in Latin - of, say, Harry Potter, | 0:34:22 | 0:34:26 | |
"..before this court, along with the reason for detention." | 0:34:26 | 0:34:30 | |
If the jailor cannot satisfy the court that the reason is lawful, | 0:34:30 | 0:34:34 | |
then Harry Potter walks free. | 0:34:34 | 0:34:37 | |
Habeas corpus is a remedy | 0:34:37 | 0:34:40 | |
against arbitrary arrest and unlawful imprisonment. | 0:34:40 | 0:34:44 | |
Lilburne employed habeas corpus more often than anyone in history. | 0:34:45 | 0:34:50 | |
The results were more symbolic than actual. | 0:34:50 | 0:34:54 | |
He was able to highlight his predicament | 0:34:54 | 0:34:56 | |
and embarrass the authorities. | 0:34:56 | 0:34:59 | |
Yet he'd still be sent back to jail. | 0:35:00 | 0:35:03 | |
If anything showed how the law was being challenged, it was this. | 0:35:03 | 0:35:08 | |
In March 1649, Lilburne's latest pamphlet | 0:35:08 | 0:35:11 | |
attacking Cromwell's regime got him arrested. | 0:35:11 | 0:35:15 | |
While he was being held, Parliament created a new law. | 0:35:15 | 0:35:20 | |
It made it treasonable | 0:35:20 | 0:35:22 | |
to call the government tyrannical or unlawful in print. | 0:35:22 | 0:35:26 | |
A mutiny in Oxfordshire brought things to a head. | 0:35:29 | 0:35:32 | |
Lilburne's pamphlets were blamed for goading the troops to revolt. | 0:35:32 | 0:35:37 | |
Cromwell put Lilburne on trial for publishing seditious pamphlets | 0:35:37 | 0:35:41 | |
under this convenient new treason law. | 0:35:41 | 0:35:45 | |
Cromwell then left for Ireland, | 0:35:45 | 0:35:48 | |
safe in the knowledge that Lilburne was all but a dead man. | 0:35:48 | 0:35:52 | |
But Lilburne was no fool. | 0:35:52 | 0:35:55 | |
And, equipped with an astounding knowledge | 0:35:55 | 0:35:57 | |
of current legal practices, | 0:35:57 | 0:35:59 | |
he took delight in defending himself. | 0:35:59 | 0:36:03 | |
Throughout the trial, he skilfully undermined | 0:36:03 | 0:36:07 | |
the legitimacy of the court - | 0:36:07 | 0:36:09 | |
refusing to call the presiding judge Lord President, | 0:36:09 | 0:36:13 | |
but also by requesting numerous comfort breaks | 0:36:13 | 0:36:17 | |
due to his prolonged period of standing in the dock. | 0:36:17 | 0:36:22 | |
Astonishingly, the court allowed him to have a chamber pot, | 0:36:22 | 0:36:27 | |
which Lilburne duly used in front of the jury. | 0:36:27 | 0:36:31 | |
Lilburne had mounted an impassioned defence | 0:36:32 | 0:36:36 | |
few barristers could better today. | 0:36:36 | 0:36:39 | |
How would the jury react? | 0:36:39 | 0:36:42 | |
Finally, the foreman announced him not guilty. | 0:36:42 | 0:36:47 | |
His life was saved | 0:36:47 | 0:36:48 | |
and the cheers from his supporters lasted over half an hour. | 0:36:48 | 0:36:52 | |
At his trial, Lilburne won important rights. | 0:36:55 | 0:36:59 | |
The right to a vigorous self-defence, | 0:36:59 | 0:37:02 | |
to challenge seeming unfairness in court procedures | 0:37:02 | 0:37:05 | |
and to take comfort breaks. | 0:37:05 | 0:37:07 | |
Lilburne had woven the law into a safety net | 0:37:09 | 0:37:12 | |
that ensured Parliament couldn't silence him. | 0:37:12 | 0:37:16 | |
Now, just as Charles I had used Star Chamber, | 0:37:16 | 0:37:21 | |
Cromwell needed to find a way of dealing with Lilburne | 0:37:21 | 0:37:25 | |
outside the normal parameters of the legal system. | 0:37:25 | 0:37:30 | |
The next time Lilburne stepped out of line, | 0:37:30 | 0:37:32 | |
Cromwell would have something up his sleeve. | 0:37:32 | 0:37:36 | |
Before he could issue a writ of habeas corpus, | 0:37:37 | 0:37:40 | |
Lilburne was shipped across the English Channel, | 0:37:40 | 0:37:43 | |
beyond the reach of the law. | 0:37:43 | 0:37:46 | |
On this offshore military outpost, | 0:37:46 | 0:37:49 | |
the normal protections of English law | 0:37:49 | 0:37:51 | |
were almost impossible to employ. | 0:37:51 | 0:37:54 | |
Jersey was Oliver Cromwell's Guantanamo Bay. | 0:37:54 | 0:37:58 | |
Lilburne's extraordinary rendition | 0:38:02 | 0:38:05 | |
took him from the relative comfort of the Tower | 0:38:05 | 0:38:08 | |
to here, Mont Orgueil Castle. | 0:38:08 | 0:38:11 | |
Cromwell wasn't prepared to take any more chances | 0:38:13 | 0:38:16 | |
with a man like John Lilburne | 0:38:16 | 0:38:17 | |
and dispatched him here to Jersey. | 0:38:17 | 0:38:19 | |
Isolated on an island - out of sight and out of mind - | 0:38:19 | 0:38:23 | |
he was beyond the effective reach of habeas corpus. | 0:38:23 | 0:38:27 | |
..A major harbour... | 0:38:27 | 0:38:29 | |
'Castle curator Doug Ford | 0:38:29 | 0:38:31 | |
'gave me a much warmer welcome than Lilburne received.' | 0:38:31 | 0:38:34 | |
So this is Lilburne's cell? | 0:38:37 | 0:38:39 | |
This is Lilburne's cell, yes. | 0:38:39 | 0:38:42 | |
His bedchamber from the 1640s through to the 1660s. | 0:38:42 | 0:38:45 | |
This is where important prisoners were lodged. | 0:38:45 | 0:38:48 | |
Now, in the summer, it's still quite chilly | 0:38:48 | 0:38:50 | |
and I notice the walls look and feel damp. | 0:38:50 | 0:38:54 | |
Yes. We're very exposed up here at the top of the cliff. | 0:38:54 | 0:38:57 | |
Lilburne was offered his freedom | 0:38:59 | 0:39:01 | |
if he would just stop agitating against the Government, | 0:39:01 | 0:39:05 | |
but being Lilburne, he would not back down. | 0:39:05 | 0:39:09 | |
A year's imprisonment in the conditions of this castle, however, | 0:39:09 | 0:39:12 | |
if it couldn't destroy his spirit, | 0:39:12 | 0:39:14 | |
left him a largely broken man. | 0:39:14 | 0:39:17 | |
In 1657, only two years after he was released, | 0:39:22 | 0:39:26 | |
John Lilburne died, aged 42. | 0:39:26 | 0:39:30 | |
But habeas corpus lives on to this day. | 0:39:31 | 0:39:37 | |
With the restoration of the English Monarchy in 1660, | 0:39:46 | 0:39:51 | |
Charles II resumed the Stuarts' favourite family pastime - | 0:39:51 | 0:39:55 | |
religious persecution. | 0:39:55 | 0:39:58 | |
A new law targeted religions outside the Church of England. | 0:40:02 | 0:40:07 | |
It severely restricted all non-conformist worship. | 0:40:07 | 0:40:11 | |
The Conventicle Act | 0:40:11 | 0:40:13 | |
banned any assembly of more than five non-Anglicans. | 0:40:13 | 0:40:17 | |
Thousands were prosecuted under the Act - | 0:40:18 | 0:40:21 | |
Catholics, Presbyterians, Quakers - | 0:40:21 | 0:40:24 | |
and those found guilty were subject to imprisonment, | 0:40:24 | 0:40:29 | |
or even transportation. | 0:40:29 | 0:40:30 | |
But that didn't stop two gutsy Quakers defying the law. | 0:40:32 | 0:40:36 | |
William Mead and William Penn had not just broken the rule of five, | 0:40:36 | 0:40:40 | |
they'd been addressing a crowd of hundreds when they were arrested. | 0:40:40 | 0:40:44 | |
But although they were guilty by the letter of the law, | 0:40:45 | 0:40:48 | |
many Englishmen felt the law was morally wrong. | 0:40:48 | 0:40:53 | |
And, luckily for the defendants, four of them were on the jury. | 0:40:53 | 0:40:57 | |
These four jurymen, led by a merchant called Edward Bushel, | 0:40:57 | 0:41:02 | |
bravely declined to find the defendants | 0:41:02 | 0:41:06 | |
guilty of a criminal offence. | 0:41:06 | 0:41:08 | |
The furious judge called Bushel impudent | 0:41:08 | 0:41:13 | |
and threatened to "put his mark on him", | 0:41:13 | 0:41:16 | |
but Bushel held firm | 0:41:16 | 0:41:17 | |
and soon the remainder of the jury followed suit. | 0:41:17 | 0:41:20 | |
Their verdict was not guilty. | 0:41:20 | 0:41:23 | |
When the jury failed to bring in the right verdict, | 0:41:25 | 0:41:29 | |
the judge shut them up without meat or drink, | 0:41:29 | 0:41:32 | |
fire or tobacco, | 0:41:32 | 0:41:34 | |
to reconsider their decision... | 0:41:34 | 0:41:36 | |
..or to starve. | 0:41:38 | 0:41:39 | |
The conditions in Newgate Gaol were so bad | 0:41:42 | 0:41:46 | |
that one in ten prisoners died there. | 0:41:46 | 0:41:49 | |
But habeas corpus was waiting to strike again. | 0:41:50 | 0:41:54 | |
Edward Bushel managed to get a writ heard before Chief Justice Vaughan. | 0:41:55 | 0:42:00 | |
The case had become infamous | 0:42:00 | 0:42:04 | |
and Westminster Hall was hanging on Vaughan's decision. | 0:42:04 | 0:42:08 | |
'What happened next would have a lasting legal impact.' | 0:42:11 | 0:42:15 | |
'I asked the current Lord Chief Justice, | 0:42:17 | 0:42:20 | |
'the highest judge in the land, about Vaughan's ruling.' | 0:42:20 | 0:42:23 | |
And he declared | 0:42:26 | 0:42:27 | |
that juries should return verdicts in accordance with their conscience | 0:42:27 | 0:42:31 | |
and that no juror should ever be punished | 0:42:31 | 0:42:34 | |
for the verdict that he reached. | 0:42:34 | 0:42:35 | |
How significant was the case of Edward Bushel? | 0:42:35 | 0:42:38 | |
It was absolutely crucial. | 0:42:38 | 0:42:40 | |
This was a remarkable moment in our history, | 0:42:40 | 0:42:44 | |
that Chief Justice Vaughan made it absolutely plain | 0:42:44 | 0:42:47 | |
that that was the end of any possibility of a juryman | 0:42:47 | 0:42:50 | |
being punished for his verdict. | 0:42:50 | 0:42:52 | |
And it never happened again and never has. | 0:42:52 | 0:42:55 | |
The jury were finally freed, | 0:42:56 | 0:42:58 | |
but only after spending several weeks | 0:42:58 | 0:43:01 | |
in England's most notorious gaol. | 0:43:01 | 0:43:04 | |
Today, juries are free to give their verdict without repercussions, | 0:43:07 | 0:43:13 | |
no matter how perverse it appears to a judge. | 0:43:13 | 0:43:16 | |
FOGHORN BLARES | 0:43:21 | 0:43:23 | |
1771, the Thames docks. | 0:43:23 | 0:43:27 | |
A legal document is raced down to a ship | 0:43:27 | 0:43:29 | |
that is about to set sail with its cargo for Jamaica. | 0:43:29 | 0:43:33 | |
The document required the ship's captain | 0:43:33 | 0:43:37 | |
to produce his cargo before the Chief Justice. | 0:43:37 | 0:43:40 | |
The document was a writ of habeas corpus, | 0:43:41 | 0:43:45 | |
the cargo a slave called James Somerset. | 0:43:45 | 0:43:50 | |
By putting Somerset in chains, | 0:43:54 | 0:43:56 | |
the ship's captain had become his gaoler, answerable to the law. | 0:43:56 | 0:44:01 | |
Habeas corpus gives a prisoner the power | 0:44:02 | 0:44:05 | |
to compel his gaoler to justify his detention. | 0:44:05 | 0:44:10 | |
A realisation swept across the slave trade. | 0:44:10 | 0:44:13 | |
The very legality of slavery itself was going to be tested in court. | 0:44:13 | 0:44:19 | |
So who was James Somerset and how had he come to be here? | 0:44:22 | 0:44:27 | |
I asked Arthur Torrington, who has studied the history of slavery. | 0:44:27 | 0:44:33 | |
James Somerset was kidnapped and taken to Virginia. | 0:44:33 | 0:44:35 | |
He was bought by a gentleman by the name of Charles Stewart. | 0:44:35 | 0:44:40 | |
A boy of nine, enslaved, | 0:44:40 | 0:44:43 | |
was just a pageboy, just a helper, | 0:44:43 | 0:44:47 | |
but eventually about ten or so years after, | 0:44:47 | 0:44:52 | |
this Mr Stewart brought him to London | 0:44:52 | 0:44:55 | |
and that's when all the things began to change. | 0:44:55 | 0:44:58 | |
James Somerset escaped. | 0:44:59 | 0:45:02 | |
Frightened and in a strange land, | 0:45:02 | 0:45:05 | |
he sought refuge in London's 15,000-strong black community. | 0:45:05 | 0:45:09 | |
And when the leading slavery abolitionist Granville Sharp | 0:45:10 | 0:45:14 | |
heard of Somerset's plight, | 0:45:14 | 0:45:16 | |
he knew he had found the perfect case | 0:45:16 | 0:45:20 | |
with which to test the very legality of slavery. | 0:45:20 | 0:45:23 | |
In the case of Granville Sharp, | 0:45:24 | 0:45:26 | |
he felt that these are human | 0:45:26 | 0:45:28 | |
and therefore these are human beings | 0:45:28 | 0:45:30 | |
that cannot be and should not be | 0:45:30 | 0:45:32 | |
treated in that particular way, | 0:45:32 | 0:45:33 | |
in which they are enslaved, | 0:45:33 | 0:45:35 | |
they are not given human rights and so on. | 0:45:35 | 0:45:39 | |
So Sharp was determined to break that cycle if he could. | 0:45:39 | 0:45:42 | |
This was an argument about whether a slave had rights on British soil. | 0:45:44 | 0:45:48 | |
Did the law regard slaves as property? | 0:45:49 | 0:45:53 | |
If so, a writ of habeas corpus would be meaningless. | 0:45:53 | 0:45:56 | |
Or would the law see slaves as human beings? | 0:45:56 | 0:46:00 | |
If so, habeas corpus could challenge | 0:46:00 | 0:46:03 | |
their transportation out of the country. | 0:46:03 | 0:46:05 | |
Ultimately, the judgement in this case | 0:46:05 | 0:46:08 | |
would reverberate across the entire slave trade | 0:46:08 | 0:46:12 | |
on both sides of the Atlantic. | 0:46:12 | 0:46:14 | |
The case went to the very top, to Lord Mansfield. | 0:46:16 | 0:46:21 | |
The slave traders could have expected Mansfield to be their ally. | 0:46:21 | 0:46:25 | |
Of Scottish noble birth, he embodied the establishment. | 0:46:25 | 0:46:29 | |
From his imposing home, Kenwood House, | 0:46:29 | 0:46:33 | |
to his rulings embracing free trade, | 0:46:33 | 0:46:36 | |
he had been prominent in both Houses of Parliament | 0:46:36 | 0:46:40 | |
and was the highest judge in the land, Lord Chief Justice. | 0:46:40 | 0:46:44 | |
As the case ground on in Westminster Hall, | 0:46:48 | 0:46:52 | |
Lord Mansfield is said to have proclaimed, | 0:46:52 | 0:46:55 | |
"Let justice be done though the heavens fall." | 0:46:55 | 0:47:00 | |
Both sides were well represented. | 0:47:00 | 0:47:02 | |
The abolitionist barristers claimed that there was no law | 0:47:02 | 0:47:05 | |
legalising slavery in this country and so it must be illegal. | 0:47:05 | 0:47:09 | |
The slavers' counsel countered by saying | 0:47:11 | 0:47:14 | |
that as contracts for the sale of slaves | 0:47:14 | 0:47:16 | |
were recognised in English law, | 0:47:16 | 0:47:18 | |
that must validate slavery in England. | 0:47:18 | 0:47:22 | |
The court adjourned for Lord Mansfield to prepare his judgement. | 0:47:22 | 0:47:27 | |
Mansfield brooded over the case. | 0:47:27 | 0:47:30 | |
What did the law say? | 0:47:30 | 0:47:32 | |
What did his heart say? | 0:47:32 | 0:47:35 | |
What impact would a ruling on the James Somerset case have? | 0:47:35 | 0:47:39 | |
Granville Sharp, the great abolitionist, | 0:47:39 | 0:47:43 | |
was anxiously awaiting the ruling. | 0:47:43 | 0:47:45 | |
But, having clashed with Mansfield in the past, | 0:47:46 | 0:47:49 | |
he didn't come to court to avoid antagonising the judge. | 0:47:49 | 0:47:53 | |
So he didn't hear the judgement delivered, | 0:47:53 | 0:47:57 | |
staying instead at his home. | 0:47:57 | 0:47:59 | |
The result was sprinted through the streets to him. | 0:48:01 | 0:48:04 | |
In this street, | 0:48:09 | 0:48:11 | |
somewhere near that spot, | 0:48:11 | 0:48:13 | |
Granville Sharp answered his door. | 0:48:13 | 0:48:16 | |
There in front of him, smiling, exultant, | 0:48:16 | 0:48:20 | |
stood James Somerset - a free man. | 0:48:20 | 0:48:23 | |
In his judgement, Lord Mansfield said, | 0:48:26 | 0:48:29 | |
"That the state of slavery is of such a nature so odious | 0:48:29 | 0:48:34 | |
"that the English Common Law could never accept it." | 0:48:34 | 0:48:37 | |
Now, whether he meant by this to ignite a spark | 0:48:37 | 0:48:41 | |
that would end slavery is unclear, | 0:48:41 | 0:48:44 | |
but that is how his judgement was interpreted both here and abroad. | 0:48:44 | 0:48:50 | |
One single writ of habeas corpus | 0:48:50 | 0:48:53 | |
had released not just one man from bondage | 0:48:53 | 0:48:57 | |
but was to mark the start of freedom | 0:48:57 | 0:49:00 | |
for all the 15,000 slaves then in England. | 0:49:00 | 0:49:04 | |
At the start of the 18th century, | 0:49:17 | 0:49:18 | |
our liberties and freedoms had been established. | 0:49:18 | 0:49:21 | |
The courts, by comparison, were still in the Dark Ages. | 0:49:21 | 0:49:25 | |
Land yourself in the dock | 0:49:25 | 0:49:27 | |
and you found yourself in a medieval nightmare. | 0:49:27 | 0:49:30 | |
With no police force | 0:49:31 | 0:49:33 | |
and no forensic science service, | 0:49:33 | 0:49:35 | |
the only means of deterring crimes was through exemplary punishment - | 0:49:35 | 0:49:39 | |
whipping, transportation and hanging. | 0:49:39 | 0:49:44 | |
And an already severe system was about to get even bloodier. | 0:49:44 | 0:49:48 | |
This is Waltham in Hampshire. | 0:49:51 | 0:49:53 | |
In 1723 it was a place of terror. | 0:49:53 | 0:49:57 | |
A gang rampaged through these forests | 0:49:58 | 0:50:01 | |
poaching, robbing and murdering, | 0:50:01 | 0:50:04 | |
their faces blacked up in disguise. | 0:50:04 | 0:50:07 | |
It was feared these Waltham Blacks, as they were known, | 0:50:08 | 0:50:12 | |
would spread their violence across England. | 0:50:12 | 0:50:14 | |
As a knee-jerk reaction the Waltham Black Act was rushed into law. | 0:50:18 | 0:50:22 | |
Suddenly, all manner of offences were punishable by death. | 0:50:22 | 0:50:27 | |
Just being caught in a park with a blacked-up face | 0:50:29 | 0:50:31 | |
could get you hanged, | 0:50:31 | 0:50:33 | |
along with damaging trees and wrecking fishponds. | 0:50:33 | 0:50:36 | |
It was the harshest legislation the country had ever seen. | 0:50:36 | 0:50:42 | |
Thus began a terrible trend | 0:50:42 | 0:50:44 | |
that meant that by the end of the century, | 0:50:44 | 0:50:47 | |
more than 200 offences were punishable by death. | 0:50:47 | 0:50:51 | |
Deterrence was all. | 0:50:51 | 0:50:52 | |
As Judge Buller told a felon he was sentencing, | 0:50:52 | 0:50:56 | |
"You are to be hanged not for stealing horses | 0:50:56 | 0:51:00 | |
"but that horses may not be stolen." | 0:51:00 | 0:51:03 | |
This system was appropriately named The Bloody Code. | 0:51:03 | 0:51:08 | |
In this era, people felt the innocent | 0:51:13 | 0:51:16 | |
should be able to argue their own cases. | 0:51:16 | 0:51:19 | |
Many an accused, when compelled to defend themselves | 0:51:19 | 0:51:24 | |
in this alien environment with its unfamiliar procedures | 0:51:24 | 0:51:28 | |
and terminology, would have been terrified into incoherence | 0:51:28 | 0:51:33 | |
when their lives were hanging in the balance. | 0:51:33 | 0:51:38 | |
If the defendant needed assistance, the judge was expected to offer it. | 0:51:38 | 0:51:44 | |
With a judge your only defender | 0:51:44 | 0:51:47 | |
and The Bloody Code sanctioning hanging for over 200 crimes, | 0:51:47 | 0:51:51 | |
you might have expected the hangman to be the busiest tradesman in town. | 0:51:51 | 0:51:55 | |
Thankfully, something came between you and the noose - the jury. | 0:51:57 | 0:52:02 | |
Juries were considerably less punitive 200 years ago | 0:52:03 | 0:52:07 | |
than perhaps you might think. | 0:52:07 | 0:52:09 | |
When faced with The Bloody Code, | 0:52:09 | 0:52:11 | |
which imposed the death penalty for innumerable petty offences, | 0:52:11 | 0:52:16 | |
juries were inclined to go against their oath | 0:52:16 | 0:52:19 | |
of bringing in a true verdict, | 0:52:19 | 0:52:22 | |
and either to find people not guilty | 0:52:22 | 0:52:25 | |
or more often to reduce the amount of property stolen | 0:52:25 | 0:52:30 | |
so that it was no longer a capital offence. | 0:52:30 | 0:52:33 | |
This was known as pious perjury and let me give you an example. | 0:52:33 | 0:52:38 | |
Here's just one case from the Old Bailey records | 0:52:39 | 0:52:42 | |
and it relates to a Mary Behn of the Parish of St Andrew Holborn. | 0:52:42 | 0:52:47 | |
Now, she was indicted for the theft of clothing | 0:52:47 | 0:52:51 | |
worth over 50 shillings. | 0:52:51 | 0:52:53 | |
That was a capital offence. | 0:52:53 | 0:52:55 | |
"She made a frivolous defence upon which the jury found her guilty | 0:52:55 | 0:53:02 | |
"to the value of 4 shillings and 10 pence." | 0:53:02 | 0:53:06 | |
Thus rendering her no longer liable to execution | 0:53:06 | 0:53:10 | |
and so she was merely branded. | 0:53:10 | 0:53:13 | |
During the 18th century, the whole system of law and punishment | 0:53:20 | 0:53:24 | |
that had become to be known as The Bloody Code wasn't working. | 0:53:24 | 0:53:28 | |
It was savage and disordered and needed a major overhaul. | 0:53:28 | 0:53:34 | |
And only the Government could do this. | 0:53:34 | 0:53:37 | |
There was a politician with the courage, | 0:53:37 | 0:53:39 | |
the obsessive eye for detail | 0:53:39 | 0:53:41 | |
and the power of personality | 0:53:41 | 0:53:43 | |
to take on this project - Robert Peel. | 0:53:43 | 0:53:48 | |
When Robert Peel became Home Secretary, | 0:53:48 | 0:53:50 | |
there were over 100 statutes dealing with forgery alone. | 0:53:50 | 0:53:54 | |
He ruthlessly attacked this legislative mess. | 0:53:54 | 0:53:57 | |
Out of this bonfire of legislation, | 0:54:03 | 0:54:07 | |
Peel pulled a piece of legislative magic. | 0:54:07 | 0:54:11 | |
120 statutes were transformed into one, just six pages long. | 0:54:11 | 0:54:18 | |
With consummate skill, | 0:54:18 | 0:54:20 | |
Robert Peel did more to reform the criminal justice system | 0:54:20 | 0:54:24 | |
than almost any other Home Secretary. | 0:54:24 | 0:54:28 | |
Over the course of eight years, | 0:54:29 | 0:54:31 | |
Peel consolidated three-quarters of all offences into a few key Acts. | 0:54:31 | 0:54:36 | |
The Waltham Black Act, with its dozens of hanging crimes, | 0:54:36 | 0:54:40 | |
all but disappeared. | 0:54:40 | 0:54:42 | |
The death penalty was severely restricted. | 0:54:42 | 0:54:44 | |
Peel had reformed the law, | 0:54:48 | 0:54:51 | |
now he searched for the means to enforce it. | 0:54:51 | 0:54:54 | |
The Bloody Code's unjust punishments had failed to reduce crime. | 0:54:54 | 0:54:58 | |
Could there be a better deterrent? | 0:54:58 | 0:55:01 | |
In August 2011 rioting swept England | 0:55:06 | 0:55:10 | |
and for a time the mob ruled. | 0:55:10 | 0:55:13 | |
Eventually, the police controlled the situation | 0:55:13 | 0:55:16 | |
but imagine the destruction if, as in Robert Peel's day, | 0:55:16 | 0:55:20 | |
the police didn't exist. | 0:55:20 | 0:55:23 | |
Instead of deploying police and employing water cannon, | 0:55:23 | 0:55:27 | |
Governments relied on The Riot Act. | 0:55:27 | 0:55:31 | |
The Act held that where 12 or more people | 0:55:32 | 0:55:35 | |
gathered together in riotous assembly | 0:55:35 | 0:55:38 | |
and rejected the reading of The Riot Act | 0:55:38 | 0:55:41 | |
and failed to disperse within an hour, | 0:55:41 | 0:55:44 | |
then force could be used against them. | 0:55:44 | 0:55:47 | |
Those remaining on the scene | 0:55:47 | 0:55:48 | |
would be subject to the most severe penalty of all - death. | 0:55:48 | 0:55:52 | |
Riots were frequent, and to restore order, | 0:55:56 | 0:55:59 | |
the only option was to send in the Army. | 0:55:59 | 0:56:02 | |
Robert Peel's new idea was to create a police force. | 0:56:05 | 0:56:10 | |
Uncontroversial to us but at the time | 0:56:10 | 0:56:14 | |
a radical and suspect concept. | 0:56:14 | 0:56:18 | |
I think he was quite clearly looking for the right answer. | 0:56:18 | 0:56:21 | |
'I asked former Home Secretary Douglas Hurd | 0:56:21 | 0:56:24 | |
'about the reaction to Peel's innovation.' | 0:56:24 | 0:56:26 | |
Why where people opposed to the creation of a police force? | 0:56:26 | 0:56:31 | |
Because one of the themes which runs through English history | 0:56:31 | 0:56:35 | |
in the 18th and 19th century is the fear... | 0:56:35 | 0:56:38 | |
is the fear of a standing army. | 0:56:38 | 0:56:41 | |
A standing army was thought of as something that the Stuarts... | 0:56:41 | 0:56:46 | |
rather believed in, cos it was a sort of re-enforcement of royal power. | 0:56:46 | 0:56:52 | |
And people thought... | 0:56:52 | 0:56:53 | |
and this was very strong when Peel first produced | 0:56:53 | 0:56:56 | |
the plan for a Metropolitan Police, | 0:56:56 | 0:56:58 | |
that this was just the Government | 0:56:58 | 0:57:00 | |
trying to grab hold of the lives of the people. | 0:57:00 | 0:57:04 | |
Peel had long sought to replace the existing | 0:57:06 | 0:57:09 | |
and ineffective system of night-watchmen | 0:57:09 | 0:57:12 | |
and parish constables, | 0:57:12 | 0:57:14 | |
but he faced an uphill struggle | 0:57:14 | 0:57:17 | |
in the face of the argument | 0:57:17 | 0:57:19 | |
that a professional police force would be a danger to liberty. | 0:57:19 | 0:57:23 | |
Could Robert Peel convince the population | 0:57:23 | 0:57:27 | |
that having a police force did not mean England | 0:57:27 | 0:57:30 | |
would become a police state? | 0:57:30 | 0:57:32 | |
In 1829 he did this by persuading the public | 0:57:33 | 0:57:37 | |
that the police would not just control people, | 0:57:37 | 0:57:41 | |
they would primarily control crime. | 0:57:41 | 0:57:43 | |
"I want to teach people," wrote Peel, | 0:57:44 | 0:57:47 | |
"that liberty does not consist in having your house robbed | 0:57:47 | 0:57:51 | |
"by organised gangs of thieves, | 0:57:51 | 0:57:54 | |
"or leaving the principal streets of London | 0:57:54 | 0:57:56 | |
"in the nightly possession of drunken women or vagabonds." | 0:57:56 | 0:58:01 | |
Crucially, for English Criminal Law, | 0:58:03 | 0:58:05 | |
the creation of a professional force | 0:58:05 | 0:58:08 | |
meant that the police, rather than harsh penalties, | 0:58:08 | 0:58:11 | |
became the main deterrent of crime. | 0:58:11 | 0:58:13 | |
The long arm of the law would prove far more effective than the noose. | 0:58:15 | 0:58:21 | |
Subtitles by Red Bee Media Ltd | 0:58:49 | 0:58:51 |