0:00:06 > 0:00:09- JEERING - At midnight on May 11th, 1640,
0:00:09 > 0:00:12a mob attacked Lambeth Palace,
0:00:12 > 0:00:15protesting against the suspension of Parliament by the King.
0:00:18 > 0:00:22They were led there by a man beating a drum.
0:00:22 > 0:00:25He was called John Archer.
0:00:25 > 0:00:28His is a name that history should remember.
0:00:28 > 0:00:30John Archer was arrested for
0:00:30 > 0:00:33"banging a drum in a war-like manner,"
0:00:33 > 0:00:37which was deemed nothing short of "levying war against the King."
0:00:37 > 0:00:39Treason.
0:00:40 > 0:00:43Archer was sent to the Tower of London,
0:00:43 > 0:00:47to see if he could be induced to give up the names
0:00:47 > 0:00:50of what the authorities regarded as his fellow conspirators.
0:00:50 > 0:00:56To secure his confession, he was put to the rack.
0:00:56 > 0:01:00The sound would have almost been as frightening as the pain,
0:01:00 > 0:01:03as the body was torn apart with the rips, the tears,
0:01:03 > 0:01:06and the pops.
0:01:10 > 0:01:13John Archer's torture was as useless
0:01:13 > 0:01:15as it was barbarous.
0:01:15 > 0:01:18If he had anything to confess, he did not reveal it.
0:01:18 > 0:01:22He was tried and executed shortly after.
0:01:23 > 0:01:27The state plucked John Archer off the street,
0:01:27 > 0:01:31He was far from being the first man to be legally tortured in England,
0:01:31 > 0:01:33but he was the last.
0:01:33 > 0:01:35No warrant for torture
0:01:35 > 0:01:38would ever be issued in England again.
0:01:40 > 0:01:43The end of torture came about
0:01:43 > 0:01:46as a result of one of the greatest battles
0:01:46 > 0:01:49between arbitrary state power and the law,
0:01:49 > 0:01:51which came to a head during the Civil War.
0:01:54 > 0:01:56In this programme,
0:01:56 > 0:01:59I am going to tell the story of the courageous men
0:01:59 > 0:02:02who used the law to challenge tyranny.
0:02:04 > 0:02:08I'll walk in the footsteps of the barrister who risked assassination,
0:02:08 > 0:02:09and eternal damnation,
0:02:09 > 0:02:15to put the King of England on trial for his crimes against the people.
0:02:15 > 0:02:19I'll find out why a pillar of the establishment
0:02:19 > 0:02:22delivered a radical judgement that rocked the slave trade,
0:02:22 > 0:02:25triggering its ultimate abolition.
0:02:28 > 0:02:31And I'll venture into the 17th-century equivalent
0:02:31 > 0:02:33of Guantanamo Bay,
0:02:33 > 0:02:37where one of England's greatest civil libertarians was banished.
0:02:39 > 0:02:44These very different men helped forge the liberties
0:02:44 > 0:02:48that we enjoy to this day.
0:03:09 > 0:03:12One of the most satisfying, and challenging,
0:03:12 > 0:03:15aspects of my job as a criminal defence barrister
0:03:15 > 0:03:16is its variety.
0:03:18 > 0:03:20In my career,
0:03:20 > 0:03:23I have defended everyone from people accused of shoplifting
0:03:23 > 0:03:25to those on trial for murder.
0:03:27 > 0:03:30But some things remain constant.
0:03:31 > 0:03:35Any trial has to be held in a court open to the public,
0:03:35 > 0:03:37before an independent jury,
0:03:37 > 0:03:41and by a judge who is pledged "to do justice,
0:03:41 > 0:03:44"beholden to no master other than the law."
0:03:44 > 0:03:48There is one set of laws that apply to England and Wales,
0:03:48 > 0:03:52and apply to everyone in those countries.
0:03:53 > 0:03:56But in the years leading up to the Civil War,
0:03:56 > 0:04:00England had a two-tier legal system.
0:04:00 > 0:04:04The common law, and a system under the royal prerogative,
0:04:04 > 0:04:06which allowed torture,
0:04:06 > 0:04:08and enabled the King to do as he saw fit.
0:04:08 > 0:04:14Its court was held in the now-notorious Star Chamber.
0:04:15 > 0:04:16Near where I am standing
0:04:16 > 0:04:19was the site of the Court of Star Chamber.
0:04:19 > 0:04:23Today, a by-word for justice and oppression.
0:04:23 > 0:04:26But in its inception, and throughout most of its history,
0:04:26 > 0:04:30it represented precisely the opposite.
0:04:30 > 0:04:32MUSIC: "Woke Up This Morning" by Alabama 3
0:04:39 > 0:04:43Star Chamber came to the fore in Tudor England -
0:04:43 > 0:04:45a country in turmoil.
0:04:45 > 0:04:50Nobles run their territories like Mafia bosses.
0:04:50 > 0:04:54Disputes can end in what we'd call "contract killings".
0:04:54 > 0:04:58The nobility seem beyond justice.
0:04:58 > 0:05:00They can intimidate juries
0:05:00 > 0:05:03and bribe judges.
0:05:03 > 0:05:07So the Crown develops a court outside the normal common law.
0:05:07 > 0:05:10It has powers that can tame the English Mafia.
0:05:10 > 0:05:13No amount of cash could buy this court.
0:05:13 > 0:05:17Soon, the previously untouchable nobles
0:05:17 > 0:05:20found themselves in the dock.
0:05:20 > 0:05:24It may look like an up-market country pub,
0:05:24 > 0:05:29but this was where England's most powerful men clashed.
0:05:29 > 0:05:32Justice was dispensed under this ceiling of gold stars,
0:05:32 > 0:05:35from which the court gets its name -
0:05:35 > 0:05:38Star Chamber.
0:05:38 > 0:05:43It had no jury that could be bribed or intimidated by the mighty.
0:05:43 > 0:05:47Instead, errant aristocrats were interrogated,
0:05:47 > 0:05:48and judged,
0:05:48 > 0:05:52by members of the government itself.
0:05:53 > 0:05:56A bit like being tried by Kenneth Clarke.
0:05:59 > 0:06:03The most accomplished lawyer to practise in Star Chamber
0:06:03 > 0:06:05was Edward Coke.
0:06:07 > 0:06:11I went to see a Cambridge historian who has studied this man,
0:06:11 > 0:06:15whose influence became second only to the King's.
0:06:15 > 0:06:19Coke's been described as one of the most disagreeable people
0:06:19 > 0:06:20in English history.
0:06:20 > 0:06:22Is that a fair assessment of his personality?
0:06:22 > 0:06:24It's a big claim, isn't it?
0:06:24 > 0:06:27But he's certainly up there.
0:06:27 > 0:06:29I think he must have been someone
0:06:29 > 0:06:32that almost everybody found overbearing.
0:06:32 > 0:06:34Even his fellow judges.
0:06:34 > 0:06:37He just never brooked an argument, as far as I can see,
0:06:37 > 0:06:38with anybody.
0:06:38 > 0:06:41He was the state prosecutor for 13 years.
0:06:41 > 0:06:44He was the chief prosecutor of the Catholic conspirators,
0:06:44 > 0:06:46above all, the Gunpowder Plotters.
0:06:46 > 0:06:50So he is party to the use of torture?
0:06:50 > 0:06:52Yes, he is party to the use of torture.
0:06:52 > 0:06:55His view would certainly be
0:06:55 > 0:06:57that torture should only be used
0:06:57 > 0:06:59against those who had admitted their guilt,
0:06:59 > 0:07:01in order to get information about co-conspirators.
0:07:02 > 0:07:06But when the King sided with Coke's arch-rival, Francis Bacon,
0:07:06 > 0:07:09a tempest was brewing.
0:07:09 > 0:07:13Bacon steered the King into ever more frequent clashes with Coke,
0:07:13 > 0:07:16culminating in his sacking as Chief Justice.
0:07:18 > 0:07:22Coke begins consistently to obstruct the King's will,
0:07:22 > 0:07:27to be pursuing matters of law which irritate the King.
0:07:27 > 0:07:30Then he becomes a very prominent figure in the opposition
0:07:30 > 0:07:33to Charles I in the 1620s.
0:07:33 > 0:07:35So he goes from being a very establishment figure
0:07:35 > 0:07:38to becoming a very anti-establishment figure.
0:07:38 > 0:07:40Everything Coke does is wholehearted.
0:07:42 > 0:07:44His judicial career was over.
0:07:44 > 0:07:47Now, Edward Coke
0:07:47 > 0:07:49would reinvent himself
0:07:49 > 0:07:52as champion of the common law.
0:07:52 > 0:07:56The regime of King Charles I
0:07:56 > 0:07:59was starting to be seen as a tyranny.
0:07:59 > 0:08:02The King used the Court of Star Chamber
0:08:02 > 0:08:05to punish those who opposed his policies,
0:08:05 > 0:08:07to Coke's horror.
0:08:07 > 0:08:10This once-honourable court
0:08:10 > 0:08:12was being corrupted.
0:08:12 > 0:08:17Star Chamber, once a court to control lawless nobles,
0:08:17 > 0:08:21became a threat to anyone who upset Charles.
0:08:21 > 0:08:23Military failures
0:08:23 > 0:08:26had depleted the King's coffers.
0:08:26 > 0:08:28In 1627, he demanded that Parliament
0:08:28 > 0:08:31impose crippling new taxes
0:08:31 > 0:08:34to pay for weapons and soldiers.
0:08:34 > 0:08:37Parliament refused.
0:08:37 > 0:08:40Charles resorted to other means.
0:08:41 > 0:08:44His plan turned out to be explosive.
0:08:44 > 0:08:49In effect, he'd let his army invade England.
0:08:49 > 0:08:52Thousands of soldiers were forcibly garrisoned
0:08:52 > 0:08:54in people's homes across the country.
0:08:56 > 0:08:59The King's troops could just roll on to your land,
0:08:59 > 0:09:01uninvited.
0:09:01 > 0:09:03To add insult to injury,
0:09:03 > 0:09:06you were then expected to foot the bill for their food and lodging.
0:09:07 > 0:09:10National fury was building,
0:09:10 > 0:09:13because, as Edward Coke famously commented,
0:09:13 > 0:09:17"The house of an Englishman is to him
0:09:17 > 0:09:19"as his castle."
0:09:22 > 0:09:26The King decided to ask his richer subjects
0:09:26 > 0:09:28for what he called a "loan".
0:09:28 > 0:09:32But there was little hope of repayment, and if you said no,
0:09:32 > 0:09:36you risked being summonsed before Star Chamber.
0:09:37 > 0:09:41Five of Charles' knights were imprisoned without trial
0:09:41 > 0:09:42for refusing to pay.
0:09:42 > 0:09:45They resorted to the courts to challenge their detention.
0:09:49 > 0:09:51This wasn't so much a dispute about money
0:09:51 > 0:09:53as a direct attempt by the knights
0:09:53 > 0:09:55to stand up to the King.
0:09:55 > 0:09:57They were saying to Charles,
0:09:57 > 0:10:00"Get your tanks off our lawn."
0:10:03 > 0:10:07The jailers refused to release the prisoners,
0:10:07 > 0:10:10because they were there on the King's authority.
0:10:12 > 0:10:14The most senior judges were now asked,
0:10:14 > 0:10:16did England's common law allow the King
0:10:16 > 0:10:19to arbitrarily arrest his subjects?
0:10:21 > 0:10:23Eventually, the judges buckled.
0:10:23 > 0:10:27The King could imprison the knights without charge.
0:10:27 > 0:10:30He WAS the law.
0:10:30 > 0:10:33Round one to the King,
0:10:33 > 0:10:35but the battle was not over yet.
0:10:37 > 0:10:40If the judges weren't prepared to stand up to the King,
0:10:40 > 0:10:42would Parliament?
0:10:42 > 0:10:46The bruised opposition regrouped around an unlikely hero -
0:10:46 > 0:10:49the 76-year-old veteran of the Star Chamber,
0:10:49 > 0:10:51Edward Coke.
0:10:51 > 0:10:55The man who had once prosecuted traitors
0:10:55 > 0:10:59was now turning the full might of his legal mind
0:10:59 > 0:11:02against the King himself.
0:11:02 > 0:11:05The session was known as the "one-issue Parliament",
0:11:05 > 0:11:09and the liberty of all Englishmen was what was at stake.
0:11:09 > 0:11:13Both sides claimed to be defending the status quo,
0:11:13 > 0:11:15and invoked history in their aid.
0:11:15 > 0:11:18The Commons made their stance on Magna Carta,
0:11:18 > 0:11:22while the King said he was loyal to what he called,
0:11:22 > 0:11:25"the old laws and customs of the realm."
0:11:26 > 0:11:27The King's position
0:11:27 > 0:11:30was to fall back on his belief
0:11:30 > 0:11:33that he ruled by divine right.
0:11:33 > 0:11:36He could do as he pleased.
0:11:36 > 0:11:39He tried to block the parliamentarians
0:11:39 > 0:11:42by forbidding them to discuss matters of state.
0:11:42 > 0:11:45Some MPs were in tears and unable to speak,
0:11:45 > 0:11:49terrified the King was going to shut down Parliament.
0:11:51 > 0:11:53Then, Coke spoke.
0:11:53 > 0:11:55His fearless oratory united the House.
0:11:55 > 0:11:58As one MP said,
0:11:58 > 0:12:01"It was as when one good hound recovers the scent.
0:12:01 > 0:12:03"The rest come in with a full cry."
0:12:06 > 0:12:09A baying House of Commons scented royal blood.
0:12:09 > 0:12:14Charles wanted money, but Coke would demand a high price.
0:12:16 > 0:12:21He would force the King to sign a royal restraining order.
0:12:21 > 0:12:23In exchange for money,
0:12:23 > 0:12:28the King would enshrine in law rights for all Englishmen.
0:12:30 > 0:12:32I'm here in the parliamentary archives
0:12:32 > 0:12:38to see a document devised and drafted largely by Edward Coke,
0:12:38 > 0:12:42and whose significance to our constitutional history
0:12:42 > 0:12:46is second only, perhaps, to that of Magna Carta itself.
0:12:46 > 0:12:50It is the Petition of Right.
0:12:52 > 0:12:55This document sat somewhere between a list of grievances
0:12:55 > 0:12:57and an actual bill of rights.
0:12:59 > 0:13:02So, here it is, the Petition of Right itself.
0:13:04 > 0:13:07Now, it may not look a great deal, it's a piece of vellum
0:13:07 > 0:13:11with a lot of rather nicely written words on them,
0:13:11 > 0:13:17but, of course, its significance is far more than just the document we have before us.
0:13:19 > 0:13:24It's only one page, but it helped change the course of history.
0:13:25 > 0:13:28It's hardly a humble petition, but that's how it's phrased.
0:13:28 > 0:13:34"Humbly do the Commons point out to the King the law of the land,
0:13:34 > 0:13:37"what had always been the civil liberties,
0:13:37 > 0:13:42"the liberties of the subject, enshrined by parliamentary statute."
0:13:42 > 0:13:45And then they go on to the meat of the complaint,
0:13:45 > 0:13:49that despite all these enactments in the past,
0:13:49 > 0:13:51things have gone horribly wrong,
0:13:51 > 0:13:53and in particular,
0:13:53 > 0:13:59"diverse of His Majesty's subjects had of late been imprisoned,
0:13:59 > 0:14:04"and when they were brought before His Majesty's courts
0:14:04 > 0:14:07"to challenge the conditions of their detention,
0:14:07 > 0:14:09"they were denied justice,
0:14:09 > 0:14:14"and they were sent back to prison without cause."
0:14:14 > 0:14:17Edward Coke was clear this would never happen again,
0:14:17 > 0:14:24insisting, "that no man hereafter be compelled to pay taxes
0:14:24 > 0:14:29"without parliamentary authority, or be imprisoned without cause."
0:14:31 > 0:14:33Any individual who was imprisoned
0:14:33 > 0:14:37could demand that their jailer legally justify their actions.
0:14:38 > 0:14:45This concept, central to our liberty, is known as habeas corpus.
0:14:45 > 0:14:49It was a principle whose power would grow immensely
0:14:49 > 0:14:51over subsequent decades.
0:14:53 > 0:14:58Coke's ideals were even appropriated for the American constitution,
0:14:58 > 0:15:01the Petition of Rights' offspring, as it were.
0:15:03 > 0:15:05This is one of those special documents
0:15:05 > 0:15:08that had a life of its own.
0:15:08 > 0:15:13This is a document that is not just significant in 17th-century England,
0:15:13 > 0:15:17this is a document that is one of the foundation documents
0:15:17 > 0:15:18of civil liberties.
0:15:18 > 0:15:22It was as if Edward Coke had joined Amnesty,
0:15:24 > 0:15:29the Royal Prosecutor had become Parliament's champion of liberty.
0:15:32 > 0:15:35Edward Coke had brought all Englishmen liberties
0:15:35 > 0:15:38by tempting Charles with the promise of cash.
0:15:39 > 0:15:40A king's ransom?
0:15:42 > 0:15:45Across England, the agreement of Charles to this document
0:15:45 > 0:15:50was welcomed by the ringing of church bells and the lighting of bonfires.
0:15:50 > 0:15:53A rare event for a parliamentary measure.
0:15:56 > 0:16:00But the celebrations had barely died down
0:16:00 > 0:16:02before Charles was plotting his next move.
0:16:02 > 0:16:05Once he had secured his cash,
0:16:05 > 0:16:09the King bypassed the Petition of Right and dissolved Parliament.
0:16:10 > 0:16:12He would rule alone,
0:16:12 > 0:16:15enforcing his will through the court of Star Chamber.
0:16:19 > 0:16:24The Star Chamber judges resorted to an alternative form of taxation,
0:16:24 > 0:16:27by fining the wealthy on frivolous charges.
0:16:28 > 0:16:32And Charles, a man who saw opposition everywhere,
0:16:32 > 0:16:36could also use Star Chamber, and its savage sentences,
0:16:36 > 0:16:40to clamp down on religious, as well as political, dissent.
0:16:44 > 0:16:46Under this ceiling studded with stars,
0:16:46 > 0:16:49disfiguring and degrading punishments
0:16:49 > 0:16:55were imposed by cruelly imaginative judges, the creatures of the King.
0:16:56 > 0:17:01The victims of such treatment were those bold or rash enough
0:17:01 > 0:17:05openly to oppose Charles' arbitrary rule.
0:17:05 > 0:17:11Some had their noses slit, others, their ears cut off.
0:17:11 > 0:17:15Public displays of Royal displeasure.
0:17:17 > 0:17:23Those reluctant to incriminate themselves, or others,
0:17:23 > 0:17:26might be persuaded to change their minds
0:17:26 > 0:17:30by a trip to the tower.
0:17:32 > 0:17:35It was home to the rack.
0:17:35 > 0:17:38CREAKING
0:17:39 > 0:17:44Bridget Clifford, from the Royal Armouries, revealed the tower's dark secret.
0:17:46 > 0:17:49For the poor unfortunates upon which this was used,
0:17:49 > 0:17:50what would have been the procedure?
0:17:50 > 0:17:54They would be brought to be shown the rack first,
0:17:54 > 0:17:56and if that didn't elicit a confession,
0:17:56 > 0:17:58or more information from you,
0:17:58 > 0:18:01then you would be set upon it.
0:18:01 > 0:18:05The ropes would be applied to your ankles and to your wrists, we think.
0:18:05 > 0:18:11And then it would be slowly tightened by rotating the drum.
0:18:16 > 0:18:18There would have been unpleasant sounds
0:18:18 > 0:18:20if you were doing this to somebody.
0:18:20 > 0:18:23I suspect also the machinery may have been a little theatrical too.
0:18:23 > 0:18:27The whole thing is there to increase the sense of terror,
0:18:27 > 0:18:30so it would have been a particularly unpleasant experience.
0:18:31 > 0:18:37One master of the rack was said to have boasted of racking a prisoner
0:18:37 > 0:18:40one good foot longer than even God made him.
0:18:42 > 0:18:45What allegations or offences would this have been applied to?
0:18:45 > 0:18:46Mainly treason.
0:18:46 > 0:18:52This is for threatening the status quo,
0:18:52 > 0:18:56or for threatening the Royal person.
0:18:56 > 0:19:01Now, what constitutes that threat can be a physical threat,
0:19:01 > 0:19:06it can also be the fact that your religion is seen to be standing against that
0:19:06 > 0:19:10that the country approves of at the time, depending on who's on the throne.
0:19:10 > 0:19:13Protestants in a Catholic world, or Catholics in a Protestant world.
0:19:15 > 0:19:19Four centuries ago, the law itself would be put on the rack.
0:19:19 > 0:19:24At one end was the King's law, at the other, the common law.
0:19:24 > 0:19:28Which system would win, and which would snap?
0:19:30 > 0:19:33For over a decade, Parliament's doors were locked,
0:19:33 > 0:19:36the King ruled alone and supreme.
0:19:37 > 0:19:42These dark days remained until a costly religious war with the Scots
0:19:42 > 0:19:45drained the royal coffers.
0:19:45 > 0:19:51Finally, in 1640, Charles was forced to recall Parliament to get money.
0:19:52 > 0:19:54Now back in the game,
0:19:54 > 0:19:58the MPs aimed to destroy the hated institutions of Charles' rule.
0:19:59 > 0:20:01Torture warrants were made illegal,
0:20:01 > 0:20:05no attempt to revive them has ever been made since.
0:20:05 > 0:20:08And victims of Star Chamber,
0:20:08 > 0:20:11those who had lost money, liberty, or ears,
0:20:11 > 0:20:17called on Parliament to rein in the symbol of royal absolutism.
0:20:17 > 0:20:20But they didn't just rein it in.
0:20:20 > 0:20:23On July 5th, 1641,
0:20:23 > 0:20:28Charles was forced to sign Star Chamber out of existence.
0:20:29 > 0:20:31Its inquisitorial powers,
0:20:31 > 0:20:35its gruesome punishments were swept away forever.
0:20:35 > 0:20:38The common law, and its liberties, had won.
0:20:39 > 0:20:45Star Chamber was dismantled as a court, and later as a room.
0:20:45 > 0:20:52Now all that remains is its name and its famous ceiling.
0:20:54 > 0:20:59Its stars now shine down on a reception room in a hotel on the Wirral.
0:21:05 > 0:21:08But despite the abolition of Star Chamber,
0:21:08 > 0:21:13Parliament and Charles were still on a collision course.
0:21:13 > 0:21:17In 1642, the crash came.
0:21:18 > 0:21:20The English Civil War.
0:21:23 > 0:21:25Though there were many causes of the war,
0:21:25 > 0:21:32one was Charles' refusal to accept that he did not have a divine right to dictate the law of the land.
0:21:32 > 0:21:36But enough of his subjects still believed he did.
0:21:36 > 0:21:39It split the country in two.
0:21:39 > 0:21:41In the carnage that followed,
0:21:41 > 0:21:45over 80,000 soldiers died on the battlefield.
0:21:45 > 0:21:50By the end of the war, Parliament had emerged triumphant.
0:21:53 > 0:21:58The Civil War, like many of the era's seismic upheavals,
0:21:58 > 0:22:00was borne out of legal disputes.
0:22:00 > 0:22:04The parliamentarians now decided to use the courts
0:22:04 > 0:22:10to ensure Charles would never be a problem to anyone again.
0:22:10 > 0:22:16But what mere subject would have the bravery to prosecute a divinely anointed king?
0:22:18 > 0:22:22Criminal barristers get their cases by being instructed by solicitors.
0:22:22 > 0:22:25They get sent one of these, it's called a brief.
0:22:25 > 0:22:28It's a set of papers, instructions,
0:22:28 > 0:22:30predominantly papers relating to the case,
0:22:30 > 0:22:33all quaintly tied up in pink ribbon.
0:22:33 > 0:22:36As one eagerly opens that ribbon,
0:22:36 > 0:22:39and read the instructions that you've been given,
0:22:39 > 0:22:42you discover what sort of case this is.
0:22:42 > 0:22:46Will it bring you fame, the respect of your peers,
0:22:46 > 0:22:48or be one of the darker cases,
0:22:48 > 0:22:52involving the defence of a paedophile, a terrorist,
0:22:52 > 0:22:54or a serial rapist?
0:22:54 > 0:22:58Barristers can't pick and choose which case they take on.
0:22:58 > 0:23:00We call this the cab rank rule,
0:23:00 > 0:23:05and no matter how unsavoury the individuals may be in the cab rank queue,
0:23:05 > 0:23:08you have to take them on their legal journey.
0:23:13 > 0:23:18But this system didn't exist in January 1649.
0:23:18 > 0:23:22Back then, one brief was emptying legal London.
0:23:24 > 0:23:26Barristers fled in droves.
0:23:26 > 0:23:29The instructions were straightforward enough -
0:23:29 > 0:23:33to prepare and prosecute the charge against the King.
0:23:33 > 0:23:39But taking on this brief risked more than just public disapproval,
0:23:39 > 0:23:44it risked imminent assassination, and even eternal damnation.
0:23:47 > 0:23:51This brief was delivered to one of the few barristers brave enough to remain in London.
0:23:51 > 0:23:54His name, John Cook.
0:23:55 > 0:23:58And this John Cook, no relation to Edward,
0:23:58 > 0:24:02had less than ten days to prepare his case.
0:24:02 > 0:24:05At its heart, this was a war crimes' trial.
0:24:06 > 0:24:08Charles was being held responsible
0:24:08 > 0:24:11for the atrocities committed by his army.
0:24:12 > 0:24:14Evidence abounded,
0:24:14 > 0:24:16but John Cook had a problem -
0:24:16 > 0:24:20in England, the source of the law is the King.
0:24:20 > 0:24:24How could the source of the law be prosecuted by the law?
0:24:28 > 0:24:31Former war crimes judge Geoffrey Robertson
0:24:31 > 0:24:36believes John Cook was the first barrister in history to prosecute tyranny.
0:24:36 > 0:24:39I put to him a conundrum of my own.
0:24:41 > 0:24:42The Civil War is now over,
0:24:42 > 0:24:47Charles I has proved to be particularly duplicitous,
0:24:47 > 0:24:49and they put him on trial.
0:24:49 > 0:24:52Why didn't he just have an accident, fall down the stairs,
0:24:52 > 0:24:55or get accidentally shot somewhere?
0:24:55 > 0:24:58You've got to understand these people, these puritans.
0:24:58 > 0:25:04They believed that all they did had to be in the sight of God.
0:25:05 > 0:25:08They believed that they were only saved
0:25:08 > 0:25:12by virtue of their ability to justify everything they did.
0:25:12 > 0:25:18And so they determined to put him on as fair a trial as the times would allow.
0:25:18 > 0:25:24And to do that in a way in which God would speak towards,
0:25:24 > 0:25:26in the course of the trial.
0:25:26 > 0:25:31They had no clear determination that he'd be executed
0:25:31 > 0:25:33at the beginning of the trial.
0:25:33 > 0:25:36It was a process which, like everything else,
0:25:36 > 0:25:40would be conducted by God.
0:25:44 > 0:25:51Now England, God, and Charles awaited the most important trial in English history.
0:25:53 > 0:25:58But had John Cook solved that seemingly impossible legal puzzle?
0:25:58 > 0:26:02All cases in England are carried out in the name of the King,
0:26:02 > 0:26:04Rex versus the defendant.
0:26:04 > 0:26:08Could Rex be against Rex?
0:26:10 > 0:26:15Cook's masterstroke was to redefine the terms of the argument.
0:26:15 > 0:26:19The King, he said, was not an individual, but an office,
0:26:19 > 0:26:23and the holder of that office had to govern by, and according to,
0:26:23 > 0:26:26the laws of the land and not otherwise.
0:26:28 > 0:26:29Ingenious.
0:26:29 > 0:26:34But would John Cook's argument be sustained in court?
0:26:35 > 0:26:39Charles Stuart would be tried in the greatest court in the land, Westminster Hall.
0:26:41 > 0:26:46But such an important prisoner could not be brought through the crowds.
0:26:46 > 0:26:52It risked rescue by his followers, or assassination by his enemies.
0:26:53 > 0:26:59On January 20th, 1649, a solution was found.
0:26:59 > 0:27:04The funeral barge was making its slow way along the Thames,
0:27:04 > 0:27:08it contained not a corpse, but a king.
0:27:09 > 0:27:13It was en route to the court via a river entrance.
0:27:13 > 0:27:16Charles was being brought in through the back door.
0:27:18 > 0:27:23Legend claims the King's journey into these legally unexplored waters
0:27:23 > 0:27:25was observed by England's new leader.
0:27:27 > 0:27:31Oliver Cromwell stood watching, white as the wall.
0:27:32 > 0:27:34He turned.
0:27:36 > 0:27:40"My masters, he is come, he is come,
0:27:40 > 0:27:43"and now we shall be doing that great work
0:27:43 > 0:27:45"that the nation will be full of."
0:27:50 > 0:27:52Wooden partitions held back the crowds,
0:27:52 > 0:27:55or failing that, armed guards.
0:27:55 > 0:27:59Up there, 68 judges sat, transfixed.
0:27:59 > 0:28:01To avoid assassination,
0:28:01 > 0:28:07the presiding judge wore a steel-lined, bullet-proof, beaver skin hat.
0:28:14 > 0:28:18Thousands of eyes were fixed on the prosecuting barrister, John Cook,
0:28:18 > 0:28:20here, centre stage.
0:28:22 > 0:28:26As Cook addressed the court, the King poked him in the back with his cane.
0:28:26 > 0:28:30Had Cook yielded to the King's request to stop,
0:28:30 > 0:28:32his legal authority would be gone.
0:28:33 > 0:28:38Cook boldly continued. The King struck him harder with the cane.
0:28:39 > 0:28:43The tip fell off, Cook declined to pick it up,
0:28:43 > 0:28:46and the King was forced to kneel to do so.
0:28:46 > 0:28:49The symbolism was obvious and ominous -
0:28:49 > 0:28:51the King knelt before the law,
0:28:51 > 0:28:56the source of the law had become subject to the law.
0:28:58 > 0:29:03The King was read the charge. Charles paused and asked,
0:29:03 > 0:29:08"I would know by what power I am called hither?"
0:29:08 > 0:29:10He told the court,
0:29:10 > 0:29:15"A king cannot be tried by any superior jurisdiction on Earth."
0:29:17 > 0:29:22Saddam, Milosevic sound exactly like Charles I.
0:29:22 > 0:29:26"By what power do you put me on trial?"
0:29:27 > 0:29:30Undermining the court's authority,
0:29:30 > 0:29:32Charles repeatedly declined to plead.
0:29:34 > 0:29:37A refusal to plead, as John Cook knew,
0:29:37 > 0:29:40was tantamount to a full confession.
0:29:41 > 0:29:44Charles's fate was in the hands of the judges.
0:29:47 > 0:29:49I think it was touch and go,
0:29:49 > 0:29:54and I think that he might have avoided the death sentence
0:29:54 > 0:29:59had he not made the mistake by talking to his guards.
0:29:59 > 0:30:05And he told his guards that he felt no sorrow at all,
0:30:05 > 0:30:09no regrets, for the loss of life in the Civil Wars.
0:30:09 > 0:30:13One in every ten Englishmen had been killed in these wars,
0:30:13 > 0:30:15which had been started by the King,
0:30:15 > 0:30:18and he told his guards he didn't feel anything.
0:30:18 > 0:30:22And that message got back to Cook, it got back to the King's judges,
0:30:22 > 0:30:26who realised that this was a man who had absolutely no regrets
0:30:26 > 0:30:29about killing Englishmen,
0:30:29 > 0:30:36and so that is why, in effect, the judges, on the whole, were turned against him.
0:30:36 > 0:30:41Finally, Charles Stuart was condemned to death.
0:30:41 > 0:30:43BELLS TOLL
0:30:46 > 0:30:49This document is unique in our history.
0:30:49 > 0:30:54The death warrant of a king, issued by a court.
0:30:55 > 0:31:01Here are the 59 soldiers, Aldermen, judges,
0:31:01 > 0:31:03who signed away the life of a king.
0:31:03 > 0:31:07Here we have John Bradshaw,
0:31:08 > 0:31:11he of the bullet-proof hat,
0:31:12 > 0:31:16and here, Oliver Cromwell.
0:31:21 > 0:31:25Charles I was marched through Banqueting House
0:31:25 > 0:31:30under a Rubens painting celebrating the divine right of kings.
0:31:30 > 0:31:33A painting the King had commissioned.
0:31:37 > 0:31:42Unlike today, Whitehall in 1649 was narrow,
0:31:42 > 0:31:46and this place was chosen for the execution of the King
0:31:46 > 0:31:50to thwart any last-ditch attempts by royalist cavalry to rescue him.
0:31:51 > 0:31:56Below me, and in front of a large throng of people,
0:31:56 > 0:32:01King Charles I stepped through a window, onto a scaffold,
0:32:01 > 0:32:03to face his fate.
0:32:06 > 0:32:08In the space of 1,000 years,
0:32:08 > 0:32:12the law devolved from being a rough code to settle local disputes
0:32:12 > 0:32:14in Anglo-Saxon England,
0:32:14 > 0:32:17into an independent institution,
0:32:17 > 0:32:23so powerful that it was capable of killing the King of England.
0:32:27 > 0:32:32Charles I and the monarchy had been swept aside.
0:32:32 > 0:32:36But in 1649, there was a fear that England had simply swapped
0:32:36 > 0:32:41one tyrannical regime for another.
0:32:41 > 0:32:46In an attempt to impose order on the chaos unleashed by the Civil War,
0:32:46 > 0:32:49Oliver Cromwell himself was stamping down on dissenters,
0:32:49 > 0:32:51whether religious groups like the Ranters,
0:32:51 > 0:32:55or political movements, like the Levellers.
0:32:55 > 0:32:58Radical groups could no longer look to Parliament
0:32:58 > 0:33:01to uphold the law in the cause of liberty.
0:33:02 > 0:33:07Individuals would have to deploy the law themselves.
0:33:07 > 0:33:12And none more so than the leading leveller John Lilburne.
0:33:13 > 0:33:17John Lilburne believed that the time had now come
0:33:17 > 0:33:21for all the men of England to claim their rights.
0:33:21 > 0:33:25Freedom of worship and universal suffrage.
0:33:25 > 0:33:27These liberties, he believed,
0:33:27 > 0:33:30were not bestowed upon them by government or by the law,
0:33:30 > 0:33:35they were the birthright of all Englishmen.
0:33:44 > 0:33:47Lilburne exploited the power of the printing press
0:33:47 > 0:33:51to propagate his views and energise his supporters.
0:33:51 > 0:33:57His secretly published diatribes were passionate, rousing,
0:33:57 > 0:33:59and seditious.
0:33:59 > 0:34:03And publications such as this were distributed up-and-down the country
0:34:03 > 0:34:06by a network of his sympathisers.
0:34:08 > 0:34:12Freedom of speech was limited in Lilburne's day.
0:34:12 > 0:34:16Lilburne's words managed to infuriate every administration
0:34:16 > 0:34:18under which he lived.
0:34:19 > 0:34:22They would repeatedly lock him up to shut him up.
0:34:22 > 0:34:26But Lilburne had a crucial legal weapon on his side.
0:34:26 > 0:34:29One enshrined in the Petition of Right.
0:34:31 > 0:34:35There had been many ways by which people had tried to escape imprisonment.
0:34:35 > 0:34:39Filing through bars, climbing over walls, digging tunnels,
0:34:39 > 0:34:44but none has the simple elegance of using a small piece of paper
0:34:44 > 0:34:45to fling open the doors.
0:34:45 > 0:34:50This is the magic of habeas corpus.
0:34:52 > 0:34:55John Lilburn thought this piece of paper
0:34:55 > 0:34:58could be the key to his freedom.
0:34:58 > 0:35:01Here's how habeas corpus works in practice -
0:35:01 > 0:35:05a document known as a writ is delivered to the jailer saying,
0:35:05 > 0:35:09we direct you to have the body, habeas corpus in Latin,
0:35:09 > 0:35:14of say, Harry Potter, before this court, along with the reason for detention.
0:35:15 > 0:35:20If the jailer cannot satisfy the court that the reason is lawful,
0:35:20 > 0:35:22then Harry Potter walks free.
0:35:23 > 0:35:27Habeas corpus is a remedy against arbitrary arrest,
0:35:27 > 0:35:30and unlawful imprisonment.
0:35:31 > 0:35:36Lilburne employed habeas corpus more often than anyone in history.
0:35:36 > 0:35:39The results were more symbolic than actual.
0:35:39 > 0:35:41He was able to highlight his predicament
0:35:41 > 0:35:43and embarrass the authorities,
0:35:43 > 0:35:45yet he'd still be sent back to jail.
0:35:47 > 0:35:51If anything showed how the law was being subverted, it was this.
0:35:53 > 0:35:57The authorities knew they couldn't get away with it forever.
0:35:59 > 0:36:04In March 1649, Lilburne's latest pamphlet attacking Cromwell's regime
0:36:04 > 0:36:06got him arrested.
0:36:06 > 0:36:10While Lilburne was being held, Parliament created a new law.
0:36:11 > 0:36:15It made it treasonable to call the government tyrannical,
0:36:15 > 0:36:17or unlawful in print.
0:36:20 > 0:36:23A mutiny in Oxfordshire brought things to a head.
0:36:23 > 0:36:27Lilburne's pamphlets were blamed for goading the troops to revolt.
0:36:27 > 0:36:32Cromwell put Lilburne on trial for publishing seditious pamphlets,
0:36:32 > 0:36:35under this convenient new treason law.
0:36:36 > 0:36:38Cromwell left for Ireland,
0:36:38 > 0:36:43safe in the knowledge that Lilburne was all but a dead man.
0:36:45 > 0:36:49The evidence against Lilburne was very strong.
0:36:49 > 0:36:54This time, he had been lawfully detained, charged, and put on trial,
0:36:54 > 0:37:00and in those circumstances, habeas corpus was both irrelevant and impotent.
0:37:01 > 0:37:06Worse still, Lilburne was going to defend himself.
0:37:06 > 0:37:08And, as we lawyers like to say,
0:37:08 > 0:37:13he who represents himself has a fool for a client.
0:37:14 > 0:37:18But John Lilburne was no fool.
0:37:18 > 0:37:21He was perhaps the greatest amateur advocate
0:37:21 > 0:37:24ever to set foot in an English court.
0:37:28 > 0:37:30I met historian Ted Vallance
0:37:30 > 0:37:33to find out more about how Lilburne fought for his life.
0:37:34 > 0:37:37His courtroom performance is incredible,
0:37:37 > 0:37:43in terms of the amount of legal citations that he uses in his speeches.
0:37:43 > 0:37:48So he really wows the jury as well with his legal knowledge.
0:37:48 > 0:37:51Even though he keeps requesting legal counsel,
0:37:51 > 0:37:54there's this, kind of, double play here.
0:37:54 > 0:37:56He says, "I need legal help" all the time,
0:37:56 > 0:37:59yet he's quoting verbatim from Coke.
0:37:59 > 0:38:01And from various other authorities at the same time.
0:38:01 > 0:38:05And what he does really nicely, all the way through the trial,
0:38:05 > 0:38:09is chip away at the court's standing,
0:38:09 > 0:38:12he suggests this isn't really a legitimate court.
0:38:12 > 0:38:15He does things like refer to the president of the court,
0:38:15 > 0:38:17Lord President Bradshaw, just as Mr Bradshaw,
0:38:17 > 0:38:21just to pull down those people who are accusing him,
0:38:21 > 0:38:22take them down a peg or two.
0:38:22 > 0:38:25Some extraordinary things happened during the trial,
0:38:25 > 0:38:27one I think involved a chamber pot.
0:38:27 > 0:38:30He keeps asking to have a toilet break,
0:38:30 > 0:38:33he keeps saying he's been standing for a long time at the bar,
0:38:33 > 0:38:34and he needs to go and relieve himself.
0:38:34 > 0:38:39And the court is, sort of, fed up with these filibustering tactics,
0:38:39 > 0:38:41and say, no, you can't go to the lavatory,
0:38:41 > 0:38:44we've got to get on with our proceedings, it's a very important trial.
0:38:44 > 0:38:48And he says, well, if you won't let me have a toilet break,
0:38:48 > 0:38:50then at least let me have a chamber pot that I can use,
0:38:50 > 0:38:53and they do actually bring in a chamber pot
0:38:53 > 0:38:56for him to actually use within the courtroom.
0:38:56 > 0:39:00- And he does that in front of the jury?- Yes, yes.
0:39:01 > 0:39:05Lilburne had mounted a defence few barristers could better today.
0:39:05 > 0:39:07How would the jury react?
0:39:09 > 0:39:14Finally, the foreman announced him not guilty,
0:39:14 > 0:39:15his life was saved,
0:39:15 > 0:39:19and the cheers from his supporters lasted over half an hour.
0:39:23 > 0:39:26At his trial, Lilburne won important rights -
0:39:26 > 0:39:29the right to a vigorous self defence,
0:39:29 > 0:39:32to challenge seeming unfairness in court procedures,
0:39:32 > 0:39:35and to take comfort breaks.
0:39:37 > 0:39:40Lilburne had woven the law into a safety net
0:39:40 > 0:39:43that ensured Parliament couldn't silence him.
0:39:45 > 0:39:49Now, just as Charles I had used the Star Chamber,
0:39:49 > 0:39:52Cromwell needed to find a way of dealing with Lilburne
0:39:52 > 0:39:55outside the normal parameters of the legal system.
0:39:57 > 0:40:00The next time Lilburne stepped out of line,
0:40:00 > 0:40:03Cromwell would have something up his sleeve.
0:40:04 > 0:40:07Before Lilburne could issue a writ of habeas corpus,
0:40:07 > 0:40:10he was shipped across the English Channel,
0:40:10 > 0:40:14beyond the reach of the law.
0:40:14 > 0:40:16On this offshore military outpost,
0:40:16 > 0:40:19the normal protections of English law
0:40:19 > 0:40:21were almost impossible to employ.
0:40:21 > 0:40:25Jersey was Oliver Cromwell's Guantanamo Bay.
0:40:27 > 0:40:31Lilburne's extraordinary rendition
0:40:31 > 0:40:34took him from the relative comfort of the tower
0:40:34 > 0:40:38to here, Mont Orgueil Castle.
0:40:39 > 0:40:43Cromwell wasn't prepared to take any more chances
0:40:43 > 0:40:44with a man like John Lilburne
0:40:44 > 0:40:46and despatched him here to Jersey.
0:40:46 > 0:40:49Isolated on an island,
0:40:49 > 0:40:51out of sight and out of mind,
0:40:51 > 0:40:55he was beyond the effective reach of habeas corpus.
0:40:57 > 0:40:59Castle curator Doug Ford
0:40:59 > 0:41:04gave me a much warmer welcome than Lilburne received.
0:41:04 > 0:41:06So, this is Lilburne's cell?
0:41:06 > 0:41:08This is Lilburne's cell, yes.
0:41:08 > 0:41:12It's his bedchamber from the 1640s through to the 1660s.
0:41:12 > 0:41:15This is where important prisoners were lodged.
0:41:15 > 0:41:18In the summer, it's still quite chilly
0:41:18 > 0:41:21- and I notice the walls look and feel damp.- Yes.
0:41:21 > 0:41:25Yes, we're very exposed up here at the top of the cliff.
0:41:29 > 0:41:32So, what's the prospect he would have from up here?
0:41:32 > 0:41:36Well, from here, you can see straight over to the east. There's Normandy.
0:41:36 > 0:41:39- On the horizon there? - On the horizon, yes.
0:41:39 > 0:41:41- Some prospect!- Indeed.
0:41:42 > 0:41:46'Normandy was not just on the horizon, it was in the language.
0:41:46 > 0:41:50'The locals spoke not English, but Norman French.
0:41:50 > 0:41:54'It was solitary confinement by language barrier.
0:41:54 > 0:41:58'A verbal island that prevented Freeborn John
0:41:58 > 0:42:00'smuggling legal appeals out.'
0:42:02 > 0:42:06Lilburne was offered his freedom if he would stop agitating against the government.
0:42:06 > 0:42:10But being Lilburne, he would not back down.
0:42:10 > 0:42:14A year's imprisonment in the conditions of this castle, however,
0:42:14 > 0:42:19if it couldn't destroy his spirit, left him a largely broken man.
0:42:21 > 0:42:23The damage to his health proved mortal.
0:42:26 > 0:42:29John Lilburne died aged 42.
0:42:32 > 0:42:34But his legacy continued.
0:42:38 > 0:42:42Jersey was an island-sized loophole in the petition of right.
0:42:42 > 0:42:45All had access to habeas corpus,
0:42:45 > 0:42:48except in places such as this.
0:42:48 > 0:42:50Whilst that might suit the government,
0:42:50 > 0:42:55voices of discontent were muttering on the backbenches.
0:42:55 > 0:42:59Increasingly, MPs were showing disquiet about this legal sleight of hand.
0:42:59 > 0:43:01And how the issue was resolved
0:43:01 > 0:43:05makes one of the most peculiar parliamentary tales.
0:43:09 > 0:43:12A habeas corpus bill was drawn up
0:43:12 > 0:43:15for prevention of imprisonment beyond the seas.
0:43:15 > 0:43:20No-one would be placed in Lilburne's legal limbo again.
0:43:21 > 0:43:24But each time the bill looked likely to win,
0:43:24 > 0:43:26the House of Lords voted against it.
0:43:26 > 0:43:30It was hit back and forth. Now it faced yet another Lords defeat.
0:43:30 > 0:43:34The opposing sides each appointed a lord as a teller.
0:43:34 > 0:43:39Lord Norris for the noes and Lord Grey for the ayes.
0:43:39 > 0:43:42The story goes that Lord Norris,
0:43:42 > 0:43:46a man subject to the vapours, was easily distracted.
0:43:46 > 0:43:50A particularly fat lord came by to be counted
0:43:50 > 0:43:53and Grey said, "Ten!"
0:43:53 > 0:43:58This rather feeble jest soon became very serious.
0:44:00 > 0:44:02Lord Norris failed to see either the joke
0:44:02 > 0:44:06or that his opponent had added nine extra votes.
0:44:07 > 0:44:12The bill went through by a majority of two.
0:44:13 > 0:44:18Now no-one could be imprisoned beyond the seas.
0:44:18 > 0:44:23Nowhere in the Empire was beyond the reach of habeas corpus.
0:44:23 > 0:44:25A fact that would later have huge,
0:44:25 > 0:44:29rather unforeseen consequences.
0:44:29 > 0:44:33And all thanks to one...fat...lord.
0:44:36 > 0:44:39In 2004, the US Supreme Court
0:44:39 > 0:44:43ruled that detention in Guantanamo Bay was illegal
0:44:43 > 0:44:47because it infringed the Habeas Corpus Act.
0:44:47 > 0:44:52America still looks to pre-independence English law for precedent.
0:44:53 > 0:44:57Back in 17th-Century England, when Oliver Cromwell died,
0:44:57 > 0:45:01the regime he founded would soon collapse.
0:45:01 > 0:45:03The power vacuum was swiftly filled
0:45:03 > 0:45:07as the heir of Charles I was restored to the throne.
0:45:07 > 0:45:09Having had Cromwell's head placed on a stake
0:45:09 > 0:45:13and John Cook, the man who'd prosecuted his father,
0:45:13 > 0:45:15hung, drawn and quartered,
0:45:15 > 0:45:20Charles II resumed the Stuarts' favourite family pastime -
0:45:20 > 0:45:22religious persecution.
0:45:24 > 0:45:28A new law targeted religions outside the Church of England.
0:45:28 > 0:45:33It severely restricted all non-conformist worship.
0:45:33 > 0:45:37The Conventicle Act banned any religious assembly
0:45:37 > 0:45:40of more than five non-Anglicans.
0:45:40 > 0:45:43Thousands were prosecuted under the act.
0:45:43 > 0:45:46Catholics, Presbyterians, Quakers.
0:45:46 > 0:45:50And those found guilty were subject to imprisonment
0:45:50 > 0:45:52or even transportation.
0:45:54 > 0:45:58But that didn't stop two gutsy Quakers defying the law.
0:45:58 > 0:46:02William Mead and William Penn had not just broken the rule of five.
0:46:02 > 0:46:06They'd been addressing a crowd of hundreds when they were arrested.
0:46:06 > 0:46:10Personally, I should love to have defended them.
0:46:10 > 0:46:12It was outrageous legislation.
0:46:12 > 0:46:15But it would have been an uphill struggle.
0:46:15 > 0:46:17In law, they were banged to rights.
0:46:19 > 0:46:22But although they were guilty by the letter of the law,
0:46:22 > 0:46:26many Englishmen felt the law was morally wrong.
0:46:26 > 0:46:29And luckily for the defendants, four of them were on the jury.
0:46:31 > 0:46:35These four jurymen, led by a merchant called Edward Bushel,
0:46:35 > 0:46:40bravely declined to find the defendants guilty
0:46:40 > 0:46:42of a criminal offence.
0:46:42 > 0:46:45The furious judge called Bushel impudent
0:46:45 > 0:46:47and threatened to put his mark on him.
0:46:47 > 0:46:50But Bushel held firm
0:46:50 > 0:46:53and soon the remainder of the jury followed suit.
0:46:53 > 0:46:56Their verdict was not guilty.
0:46:59 > 0:47:02When the jury failed to bring in the right verdict,
0:47:02 > 0:47:05the judge shut them up without meat or drink,
0:47:05 > 0:47:07fire or tobacco,
0:47:07 > 0:47:11to reconsider their decision.
0:47:11 > 0:47:13Or to starve.
0:47:15 > 0:47:18The conditions in Newgate Jail were so bad
0:47:18 > 0:47:21that one in ten prisoners died there.
0:47:23 > 0:47:26But habeas corpus was waiting to strike again.
0:47:29 > 0:47:32Edward Bushel managed to get a writ
0:47:32 > 0:47:35heard before Chief Justice Vaughan.
0:47:35 > 0:47:38The case had become infamous.
0:47:38 > 0:47:42And Westminster Hall was hanging on Vaughan's decision.
0:47:45 > 0:47:49What happened next would have a lasting legal impact.
0:47:51 > 0:47:54I asked the current Lord Chief Justice,
0:47:54 > 0:47:58the highest judge in the land, about Vaughan's ruling.
0:47:59 > 0:48:02He declared the jury should return verdicts
0:48:02 > 0:48:04in accordance with their conscience
0:48:04 > 0:48:09and that no juror should ever be punished for the verdict he reached.
0:48:09 > 0:48:12How significant was the case of Edward Bushel?
0:48:12 > 0:48:14It was absolutely crucial.
0:48:14 > 0:48:17This was a remarkable moment in our history.
0:48:17 > 0:48:20Chief Justice Vaughan made it absolutely plain
0:48:20 > 0:48:22that that was the end of any possibility
0:48:22 > 0:48:25of a juryman being punished for his verdict.
0:48:25 > 0:48:27And it never happened again. And never has.
0:48:29 > 0:48:32The jury were finally freed.
0:48:32 > 0:48:35But only after spending several weeks
0:48:35 > 0:48:38in England's most notorious jail.
0:48:41 > 0:48:45Today, juries are free to give their verdict without recrimination,
0:48:45 > 0:48:48no matter how perverse it appears to a judge.
0:48:53 > 0:48:55Over the course of the 17th Century,
0:48:55 > 0:48:58the liberties of the English had undergone
0:48:58 > 0:49:02an extraordinary change for the better.
0:49:02 > 0:49:04This was thanks not only to men
0:49:04 > 0:49:06like Edward Bushel and John Lilburne,
0:49:06 > 0:49:11but also to the legal instrument at the heart of their stories.
0:49:11 > 0:49:15Habeas corpus had served Englishmen well.
0:49:15 > 0:49:18Could it now deal with an horrific abuse
0:49:18 > 0:49:22which the English were inflicting on others?
0:49:25 > 0:49:301771. The Thames docks.
0:49:30 > 0:49:33A legal document is raced down to a ship
0:49:33 > 0:49:37that is about to set sail with its cargo for Jamaica.
0:49:37 > 0:49:40The document required the ship's captain
0:49:40 > 0:49:44to produce his cargo before the Chief Justice.
0:49:45 > 0:49:49The document was a writ of habeas corpus.
0:49:49 > 0:49:54The cargo, a slave called James Somerset.
0:49:56 > 0:49:59By putting Somerset in chains,
0:49:59 > 0:50:03the ship's captain had become his jailer,
0:50:03 > 0:50:05answerable to the law.
0:50:05 > 0:50:09And as we have seen, habeas corpus gives a prisoner the power
0:50:09 > 0:50:13to compel his jailer to justify his imprisonment.
0:50:15 > 0:50:18A realisation swept across the slave trade.
0:50:18 > 0:50:21The very legality of slavery itself
0:50:21 > 0:50:24was going to be tested in court.
0:50:25 > 0:50:28So, who was James Somerset and how had he come to be here?
0:50:28 > 0:50:31I asked Arthur Torrington,
0:50:31 > 0:50:33who has studied the history of slavery.
0:50:35 > 0:50:39James Somerset was kidnapped and taken to Virginia.
0:50:39 > 0:50:44He was bought by a gentleman by the name of Charles Stewart.
0:50:44 > 0:50:48Um...a boy of nine, enslaved,
0:50:48 > 0:50:51was just a pageboy, was just a helper.
0:50:51 > 0:50:55But eventually, about ten or so years after,
0:50:55 > 0:50:59this Mr Stewart brought him to London.
0:50:59 > 0:51:01And that's when all the things began to change.
0:51:01 > 0:51:04James Somerset escaped.
0:51:06 > 0:51:08Frightened and in a strange land,
0:51:08 > 0:51:12he sought refuge with members of London's black community.
0:51:13 > 0:51:17He must have believed that you can run away and it's all right.
0:51:17 > 0:51:21But whereas his master felt that this is a bit of, um...
0:51:21 > 0:51:23Well, he was ungrateful.
0:51:23 > 0:51:25That was what Stewart had said.
0:51:25 > 0:51:27And therefore, what Stewart did
0:51:27 > 0:51:30was to get one of his friends, or he paid somebody to do it,
0:51:30 > 0:51:32and eventually, they actually got hold
0:51:32 > 0:51:36and they kidnapped James Somerset and put him on a ship.
0:51:36 > 0:51:40Fortunately, while Somerset was on the run,
0:51:40 > 0:51:43he had encountered abolitionists.
0:51:43 > 0:51:45Their leader, Granville Sharp,
0:51:45 > 0:51:49was seeking to challenge the legal basis of slavery.
0:51:49 > 0:51:51When he heard of Somerset's plight,
0:51:51 > 0:51:56he knew he had found the perfect test case.
0:51:56 > 0:52:00In the case of Granville Sharp, he felt that these are human,
0:52:00 > 0:52:04and therefore, human beings cannot be and should not be
0:52:04 > 0:52:05treated in that particular way,
0:52:05 > 0:52:09in which they are enslaved, they are not given human rights and so on.
0:52:09 > 0:52:15So Sharp was determined to break that cycle if he could.
0:52:15 > 0:52:18At bottom, this was an argument
0:52:18 > 0:52:23about whether a slave had rights on British soil.
0:52:28 > 0:52:30Rule Britannia, the popular anthem of the era,
0:52:30 > 0:52:34boasted that Britons never shall be slaves.
0:52:34 > 0:52:36Now the legal system was being asked,
0:52:36 > 0:52:40"Can slaves ever be Britons?"
0:52:41 > 0:52:44Did the law regard a slave as property, like this boat?
0:52:44 > 0:52:48A writ of habeas corpus in this case would be meaningless,
0:52:48 > 0:52:53or would the law see a slave as a human being?
0:52:53 > 0:52:55If so, habeas corpus could challenge
0:52:55 > 0:52:59their transportation out of the realm without their consent.
0:53:00 > 0:53:04Ultimately, the judgement in this case
0:53:04 > 0:53:08would reverberate on both sides of the Atlantic.
0:53:08 > 0:53:13The case went to the very top, to Lord Mansfield.
0:53:13 > 0:53:17The slave traders could have expected Mansfield to be their ally.
0:53:17 > 0:53:22Of Scottish noble birth, he embodied the establishment.
0:53:22 > 0:53:25From his imposing home, Kenwood House,
0:53:25 > 0:53:28to his rulings embracing free trade.
0:53:28 > 0:53:31He had been leader of both Houses of Parliament
0:53:31 > 0:53:34and was the highest judge in the land.
0:53:34 > 0:53:37Lord Chief Justice.
0:53:37 > 0:53:42In this fine library, the erudite Lord Mansfield studied the law.
0:53:42 > 0:53:45And there he is in all his glory,
0:53:45 > 0:53:48robed in ermine, reading Cicero,
0:53:48 > 0:53:51with Homer inspiring him,
0:53:51 > 0:53:53and the pillar of Solomon behind him.
0:53:58 > 0:54:01As the case ground on in Westminster Hall,
0:54:01 > 0:54:04Lord Mansfield is said to have proclaimed,
0:54:04 > 0:54:08"Let justice be done, though the heavens fall."
0:54:09 > 0:54:11Both sides were well represented.
0:54:11 > 0:54:14The abolitionists' barristers claimed there was no law
0:54:14 > 0:54:17legalising slavery in this country,
0:54:17 > 0:54:19and so it must be illegal.
0:54:20 > 0:54:23The slavers' counsel countered by saying that
0:54:23 > 0:54:28as contracts for the sale of slaves were recognised in English law,
0:54:28 > 0:54:32that must validate slavery in England.
0:54:32 > 0:54:36The court adjourned for Lord Mansfield to prepare his judgement.
0:54:38 > 0:54:41Did the law of Virginia have any standing in England?
0:54:42 > 0:54:48Was slavery sanctioned or at least permitted under common law?
0:54:49 > 0:54:54He pondered long and hard on this momentous task.
0:54:54 > 0:54:58Lord Mansfield brooded over the case.
0:54:58 > 0:55:00What did the law say?
0:55:00 > 0:55:01What did his heart say?
0:55:01 > 0:55:06What impact would a ruling on the James Somerset case have?
0:55:07 > 0:55:10Granville Sharp, the great abolitionist,
0:55:10 > 0:55:13was anxiously awaiting the ruling.
0:55:13 > 0:55:16But having clashed with Mansfield in the past,
0:55:16 > 0:55:20he didn't come to court to avoid antagonising the judge.
0:55:20 > 0:55:23So he did not hear the judgement delivered,
0:55:23 > 0:55:25staying instead at his home.
0:55:27 > 0:55:31The result was sprinted through the streets to him.
0:55:38 > 0:55:41In this street, somewhere near that spot,
0:55:41 > 0:55:45Granville Sharp answered his door.
0:55:45 > 0:55:48There in front of him, smiling, exultant,
0:55:48 > 0:55:53stood James Somerset, a free man.
0:55:53 > 0:55:56It was a staggering decision.
0:55:56 > 0:55:59How had Lord Mansfield
0:55:59 > 0:56:03come to rule in a mere slave's favour?
0:56:04 > 0:56:06Although he may not have realised it,
0:56:06 > 0:56:09Sharp had a secret agent at the very heart of this house.
0:56:09 > 0:56:13She was the daughter of this man, Captain John Lindsay.
0:56:13 > 0:56:16Mansfield's nephew.
0:56:16 > 0:56:19Her name was Dido Bell,
0:56:19 > 0:56:23and it's believed her mother was an African slave.
0:56:23 > 0:56:28Dido grew up at Kenwood in Lord Mansfield's care.
0:56:28 > 0:56:31Was Mansfield's landmark judgement
0:56:31 > 0:56:34influenced by his fondness for her?
0:56:37 > 0:56:40In his judgement, Lord Mansfield said
0:56:40 > 0:56:44that the state of slavery is of such a nature so odious
0:56:44 > 0:56:48that the English common law could never accept it.
0:56:48 > 0:56:51Now, whether he meant by this
0:56:51 > 0:56:54to ignite a spark that would end slavery is unclear,
0:56:54 > 0:57:00but that is how his judgement was interpreted both here and abroad.
0:57:00 > 0:57:04One single writ of habeas corpus
0:57:04 > 0:57:07had released not just one man from bondage,
0:57:07 > 0:57:11but was to mark the start of freedom
0:57:11 > 0:57:16for all the 15,000 slaves then in England.
0:57:20 > 0:57:23Habeas corpus remains part of English law.
0:57:23 > 0:57:26But it rarely needs to be used today.
0:57:26 > 0:57:28In my entire career, I've never had to seek it
0:57:28 > 0:57:32on behalf of any of my clients, nor has anybody else I know.
0:57:32 > 0:57:34We simply take it for granted
0:57:34 > 0:57:38that everybody has the right to know the reasons for their detention,
0:57:38 > 0:57:42just as they have the right to a fair trial by an independent jury
0:57:42 > 0:57:46under the auspices of an impartial judge.
0:57:46 > 0:57:49Arbitrary action by the state at any stage in the legal process
0:57:49 > 0:57:52is something we hope, like slavery,
0:57:52 > 0:57:56has been consigned to history.
0:57:56 > 0:57:59We may regard these liberties as freeborn rights,
0:57:59 > 0:58:02to use John Lilburne's words,
0:58:02 > 0:58:06but we mustn't forget just how hard won they were.
0:58:09 > 0:58:12Next time - revolution in the courtroom.
0:58:12 > 0:58:15How the criminal trial turned from a one-sided struggle
0:58:15 > 0:58:17in the shadow of the noose
0:58:17 > 0:58:20into the fairest court system on Earth.
0:58:20 > 0:58:23It's the story of how barristers took centre stage
0:58:23 > 0:58:27and of how the law finally admitted its own fallibility.
0:58:46 > 0:58:50Subtitles by Red Bee Media Ltd