The Pursuit of Liberty The Strange Case of the Law

-JEERING

-At midnight on May 11th, 1640,

a mob attacked Lambeth Palace,

protesting against the suspension of Parliament by the King.

They were led there by a man beating a drum.

He was called John Archer.

His is a name that history should remember.

John Archer was arrested for

"banging a drum in a war-like manner,"

which was deemed nothing short of "levying war against the King."

Treason.

Archer was sent to the Tower of London,

to see if he could be induced to give up the names

of what the authorities regarded as his fellow conspirators.

To secure his confession, he was put to the rack.

The sound would have almost been as frightening as the pain,

as the body was torn apart with the rips, the tears,

and the pops.

John Archer's torture was as useless

as it was barbarous.

If he had anything to confess, he did not reveal it.

He was tried and executed shortly after.

The state plucked John Archer off the street,

He was far from being the first man to be legally tortured in England,

but he was the last.

No warrant for torture

would ever be issued in England again.

The end of torture came about

as a result of one of the greatest battles

between arbitrary state power and the law,

which came to a head during the Civil War.

In this programme,

I am going to tell the story of the courageous men

who used the law to challenge tyranny.

I'll walk in the footsteps of the barrister who risked assassination,

and eternal damnation,

to put the King of England on trial for his crimes against the people.

I'll find out why a pillar of the establishment

delivered a radical judgement that rocked the slave trade,

triggering its ultimate abolition.

And I'll venture into the 17th-century equivalent

of Guantanamo Bay,

where one of England's greatest civil libertarians was banished.

These very different men helped forge the liberties

that we enjoy to this day.

One of the most satisfying, and challenging,

aspects of my job as a criminal defence barrister

is its variety.

In my career,

I have defended everyone from people accused of shoplifting

to those on trial for murder.

But some things remain constant.

Any trial has to be held in a court open to the public,

before an independent jury,

and by a judge who is pledged "to do justice,

"beholden to no master other than the law."

There is one set of laws that apply to England and Wales,

and apply to everyone in those countries.

But in the years leading up to the Civil War,

England had a two-tier legal system.

The common law, and a system under the royal prerogative,

which allowed torture,

and enabled the King to do as he saw fit.

Its court was held in the now-notorious Star Chamber.

Near where I am standing

was the site of the Court of Star Chamber.

Today, a by-word for justice and oppression.

But in its inception, and throughout most of its history,

it represented precisely the opposite.

MUSIC: "Woke Up This Morning" by Alabama 3

Star Chamber came to the fore in Tudor England -

a country in turmoil.

Nobles run their territories like Mafia bosses.

Disputes can end in what we'd call "contract killings".

The nobility seem beyond justice.

They can intimidate juries

and bribe judges.

So the Crown develops a court outside the normal common law.

It has powers that can tame the English Mafia.

No amount of cash could buy this court.

Soon, the previously untouchable nobles

found themselves in the dock.

It may look like an up-market country pub,

but this was where England's most powerful men clashed.

Justice was dispensed under this ceiling of gold stars,

from which the court gets its name -

Star Chamber.

It had no jury that could be bribed or intimidated by the mighty.

Instead, errant aristocrats were interrogated,

and judged,

by members of the government itself.

A bit like being tried by Kenneth Clarke.

The most accomplished lawyer to practise in Star Chamber

was Edward Coke.

I went to see a Cambridge historian who has studied this man,

whose influence became second only to the King's.

Coke's been described as one of the most disagreeable people

in English history.

Is that a fair assessment of his personality?

It's a big claim, isn't it?

But he's certainly up there.

I think he must have been someone

that almost everybody found overbearing.

Even his fellow judges.

He just never brooked an argument, as far as I can see,

with anybody.

He was the state prosecutor for 13 years.

He was the chief prosecutor of the Catholic conspirators,

above all, the Gunpowder Plotters.

So he is party to the use of torture?

Yes, he is party to the use of torture.

His view would certainly be

that torture should only be used

against those who had admitted their guilt,

in order to get information about co-conspirators.

But when the King sided with Coke's arch-rival, Francis Bacon,

a tempest was brewing.

Bacon steered the King into ever more frequent clashes with Coke,

culminating in his sacking as Chief Justice.

Coke begins consistently to obstruct the King's will,

to be pursuing matters of law which irritate the King.

Then he becomes a very prominent figure in the opposition

to Charles I in the 1620s.

So he goes from being a very establishment figure

to becoming a very anti-establishment figure.

Everything Coke does is wholehearted.

His judicial career was over.

Now, Edward Coke

would reinvent himself

as champion of the common law.

The regime of King Charles I

was starting to be seen as a tyranny.

The King used the Court of Star Chamber

to punish those who opposed his policies,

to Coke's horror.

This once-honourable court

was being corrupted.

Star Chamber, once a court to control lawless nobles,

became a threat to anyone who upset Charles.

Military failures

had depleted the King's coffers.

In 1627, he demanded that Parliament

impose crippling new taxes

to pay for weapons and soldiers.

Parliament refused.

Charles resorted to other means.

His plan turned out to be explosive.

In effect, he'd let his army invade England.

Thousands of soldiers were forcibly garrisoned

in people's homes across the country.

The King's troops could just roll on to your land,

uninvited.

To add insult to injury,

you were then expected to foot the bill for their food and lodging.

National fury was building,

because, as Edward Coke famously commented,

"The house of an Englishman is to him

"as his castle."

The King decided to ask his richer subjects

for what he called a "loan".

But there was little hope of repayment, and if you said no,

you risked being summonsed before Star Chamber.

Five of Charles' knights were imprisoned without trial

for refusing to pay.

They resorted to the courts to challenge their detention.

This wasn't so much a dispute about money

as a direct attempt by the knights

to stand up to the King.

They were saying to Charles,

"Get your tanks off our lawn."

The jailers refused to release the prisoners,

because they were there on the King's authority.

The most senior judges were now asked,

did England's common law allow the King

to arbitrarily arrest his subjects?

Eventually, the judges buckled.

The King could imprison the knights without charge.

He WAS the law.

Round one to the King,

but the battle was not over yet.

If the judges weren't prepared to stand up to the King,

would Parliament?

The bruised opposition regrouped around an unlikely hero -

the 76-year-old veteran of the Star Chamber,

Edward Coke.

The man who had once prosecuted traitors

was now turning the full might of his legal mind

against the King himself.

The session was known as the "one-issue Parliament",

and the liberty of all Englishmen was what was at stake.

Both sides claimed to be defending the status quo,

and invoked history in their aid.

The Commons made their stance on Magna Carta,

while the King said he was loyal to what he called,

"the old laws and customs of the realm."

The King's position

was to fall back on his belief

that he ruled by divine right.

He could do as he pleased.

He tried to block the parliamentarians

by forbidding them to discuss matters of state.

Some MPs were in tears and unable to speak,

terrified the King was going to shut down Parliament.

Then, Coke spoke.

His fearless oratory united the House.

As one MP said,

"It was as when one good hound recovers the scent.

"The rest come in with a full cry."

A baying House of Commons scented royal blood.

Charles wanted money, but Coke would demand a high price.

He would force the King to sign a royal restraining order.

In exchange for money,

the King would enshrine in law rights for all Englishmen.

I'm here in the parliamentary archives

to see a document devised and drafted largely by Edward Coke,

and whose significance to our constitutional history

is second only, perhaps, to that of Magna Carta itself.

It is the Petition of Right.

This document sat somewhere between a list of grievances

and an actual bill of rights.

So, here it is, the Petition of Right itself.

Now, it may not look a great deal, it's a piece of vellum

with a lot of rather nicely written words on them,

but, of course, its significance is far more than just the document we have before us.

It's only one page, but it helped change the course of history.

It's hardly a humble petition, but that's how it's phrased.

"Humbly do the Commons point out to the King the law of the land,

"what had always been the civil liberties,

"the liberties of the subject, enshrined by parliamentary statute."

And then they go on to the meat of the complaint,

that despite all these enactments in the past,

things have gone horribly wrong,

and in particular,

"diverse of His Majesty's subjects had of late been imprisoned,

"and when they were brought before His Majesty's courts

"to challenge the conditions of their detention,

"they were denied justice,

"and they were sent back to prison without cause."

Edward Coke was clear this would never happen again,

insisting, "that no man hereafter be compelled to pay taxes

"without parliamentary authority, or be imprisoned without cause."

Any individual who was imprisoned

could demand that their jailer legally justify their actions.

This concept, central to our liberty, is known as habeas corpus.

It was a principle whose power would grow immensely

over subsequent decades.

Coke's ideals were even appropriated for the American constitution,

the Petition of Rights' offspring, as it were.

This is one of those special documents

that had a life of its own.

This is a document that is not just significant in 17th-century England,

this is a document that is one of the foundation documents

of civil liberties.

It was as if Edward Coke had joined Amnesty,

the Royal Prosecutor had become Parliament's champion of liberty.

Edward Coke had brought all Englishmen liberties

by tempting Charles with the promise of cash.

A king's ransom?

Across England, the agreement of Charles to this document

was welcomed by the ringing of church bells and the lighting of bonfires.

A rare event for a parliamentary measure.

But the celebrations had barely died down

before Charles was plotting his next move.

Once he had secured his cash,

the King bypassed the Petition of Right and dissolved Parliament.

He would rule alone,

enforcing his will through the court of Star Chamber.

The Star Chamber judges resorted to an alternative form of taxation,

by fining the wealthy on frivolous charges.

And Charles, a man who saw opposition everywhere,

could also use Star Chamber, and its savage sentences,

to clamp down on religious, as well as political, dissent.

Under this ceiling studded with stars,

disfiguring and degrading punishments

were imposed by cruelly imaginative judges, the creatures of the King.

The victims of such treatment were those bold or rash enough

openly to oppose Charles' arbitrary rule.

Some had their noses slit, others, their ears cut off.

Public displays of Royal displeasure.

Those reluctant to incriminate themselves, or others,

might be persuaded to change their minds

by a trip to the tower.

It was home to the rack.

CREAKING

Bridget Clifford, from the Royal Armouries, revealed the tower's dark secret.

For the poor unfortunates upon which this was used,

what would have been the procedure?

They would be brought to be shown the rack first,

and if that didn't elicit a confession,

or more information from you,

then you would be set upon it.

The ropes would be applied to your ankles and to your wrists, we think.

And then it would be slowly tightened by rotating the drum.

There would have been unpleasant sounds

if you were doing this to somebody.

I suspect also the machinery may have been a little theatrical too.

The whole thing is there to increase the sense of terror,

so it would have been a particularly unpleasant experience.

One master of the rack was said to have boasted of racking a prisoner

one good foot longer than even God made him.

What allegations or offences would this have been applied to?

Mainly treason.

This is for threatening the status quo,

or for threatening the Royal person.

Now, what constitutes that threat can be a physical threat,

it can also be the fact that your religion is seen to be standing against that

that the country approves of at the time, depending on who's on the throne.

Protestants in a Catholic world, or Catholics in a Protestant world.

Four centuries ago, the law itself would be put on the rack.

At one end was the King's law, at the other, the common law.

Which system would win, and which would snap?

For over a decade, Parliament's doors were locked,

the King ruled alone and supreme.

These dark days remained until a costly religious war with the Scots

drained the royal coffers.

Finally, in 1640, Charles was forced to recall Parliament to get money.

Now back in the game,

the MPs aimed to destroy the hated institutions of Charles' rule.

Torture warrants were made illegal,

no attempt to revive them has ever been made since.

And victims of Star Chamber,

those who had lost money, liberty, or ears,

called on Parliament to rein in the symbol of royal absolutism.

But they didn't just rein it in.

On July 5th, 1641,

Charles was forced to sign Star Chamber out of existence.

Its inquisitorial powers,

its gruesome punishments were swept away forever.

The common law, and its liberties, had won.

Star Chamber was dismantled as a court, and later as a room.

Now all that remains is its name and its famous ceiling.

Its stars now shine down on a reception room in a hotel on the Wirral.

But despite the abolition of Star Chamber,

Parliament and Charles were still on a collision course.

In 1642, the crash came.

The English Civil War.

Though there were many causes of the war,

one was Charles' refusal to accept that he did not have a divine right to dictate the law of the land.

But enough of his subjects still believed he did.

It split the country in two.

In the carnage that followed,

over 80,000 soldiers died on the battlefield.

By the end of the war, Parliament had emerged triumphant.

The Civil War, like many of the era's seismic upheavals,

was borne out of legal disputes.

The parliamentarians now decided to use the courts

to ensure Charles would never be a problem to anyone again.

But what mere subject would have the bravery to prosecute a divinely anointed king?

Criminal barristers get their cases by being instructed by solicitors.

They get sent one of these, it's called a brief.

It's a set of papers, instructions,

predominantly papers relating to the case,

all quaintly tied up in pink ribbon.

As one eagerly opens that ribbon,

and read the instructions that you've been given,

you discover what sort of case this is.

Will it bring you fame, the respect of your peers,

or be one of the darker cases,

involving the defence of a paedophile, a terrorist,

or a serial rapist?

Barristers can't pick and choose which case they take on.

We call this the cab rank rule,

and no matter how unsavoury the individuals may be in the cab rank queue,

you have to take them on their legal journey.

But this system didn't exist in January 1649.

Back then, one brief was emptying legal London.

Barristers fled in droves.

The instructions were straightforward enough -

to prepare and prosecute the charge against the King.

But taking on this brief risked more than just public disapproval,

it risked imminent assassination, and even eternal damnation.

This brief was delivered to one of the few barristers brave enough to remain in London.

His name, John Cook.

And this John Cook, no relation to Edward,

had less than ten days to prepare his case.

At its heart, this was a war crimes' trial.

Charles was being held responsible

for the atrocities committed by his army.

Evidence abounded,

but John Cook had a problem -

in England, the source of the law is the King.

How could the source of the law be prosecuted by the law?

Former war crimes judge Geoffrey Robertson

believes John Cook was the first barrister in history to prosecute tyranny.

I put to him a conundrum of my own.

The Civil War is now over,

Charles I has proved to be particularly duplicitous,

and they put him on trial.

Why didn't he just have an accident, fall down the stairs,

or get accidentally shot somewhere?

You've got to understand these people, these puritans.

They believed that all they did had to be in the sight of God.

They believed that they were only saved

by virtue of their ability to justify everything they did.

And so they determined to put him on as fair a trial as the times would allow.

And to do that in a way in which God would speak towards,

in the course of the trial.

They had no clear determination that he'd be executed

at the beginning of the trial.

It was a process which, like everything else,

would be conducted by God.

Now England, God, and Charles awaited the most important trial in English history.

But had John Cook solved that seemingly impossible legal puzzle?

All cases in England are carried out in the name of the King,

Rex versus the defendant.

Could Rex be against Rex?

Cook's masterstroke was to redefine the terms of the argument.

The King, he said, was not an individual, but an office,

and the holder of that office had to govern by, and according to,

the laws of the land and not otherwise.

Ingenious.

But would John Cook's argument be sustained in court?

Charles Stuart would be tried in the greatest court in the land, Westminster Hall.

But such an important prisoner could not be brought through the crowds.

It risked rescue by his followers, or assassination by his enemies.

On January 20th, 1649, a solution was found.

The funeral barge was making its slow way along the Thames,

it contained not a corpse, but a king.

It was en route to the court via a river entrance.

Charles was being brought in through the back door.

Legend claims the King's journey into these legally unexplored waters

was observed by England's new leader.

Oliver Cromwell stood watching, white as the wall.

He turned.

"My masters, he is come, he is come,

"and now we shall be doing that great work

"that the nation will be full of."

Wooden partitions held back the crowds,

or failing that, armed guards.

Up there, 68 judges sat, transfixed.

To avoid assassination,

the presiding judge wore a steel-lined, bullet-proof, beaver skin hat.

Thousands of eyes were fixed on the prosecuting barrister, John Cook,

here, centre stage.

As Cook addressed the court, the King poked him in the back with his cane.

Had Cook yielded to the King's request to stop,

his legal authority would be gone.

Cook boldly continued. The King struck him harder with the cane.

The tip fell off, Cook declined to pick it up,

and the King was forced to kneel to do so.

The symbolism was obvious and ominous -

the King knelt before the law,

the source of the law had become subject to the law.

The King was read the charge. Charles paused and asked,

"I would know by what power I am called hither?"

He told the court,

"A king cannot be tried by any superior jurisdiction on Earth."

Saddam, Milosevic sound exactly like Charles I.

"By what power do you put me on trial?"

Undermining the court's authority,

Charles repeatedly declined to plead.

A refusal to plead, as John Cook knew,

was tantamount to a full confession.

Charles's fate was in the hands of the judges.

I think it was touch and go,

and I think that he might have avoided the death sentence

had he not made the mistake by talking to his guards.

And he told his guards that he felt no sorrow at all,

no regrets, for the loss of life in the Civil Wars.

One in every ten Englishmen had been killed in these wars,

which had been started by the King,

and he told his guards he didn't feel anything.

And that message got back to Cook, it got back to the King's judges,

who realised that this was a man who had absolutely no regrets

about killing Englishmen,

and so that is why, in effect, the judges, on the whole, were turned against him.

Finally, Charles Stuart was condemned to death.

BELLS TOLL

This document is unique in our history.

The death warrant of a king, issued by a court.

Here are the 59 soldiers, Aldermen, judges,

who signed away the life of a king.

Here we have John Bradshaw,

he of the bullet-proof hat,

and here, Oliver Cromwell.

Charles I was marched through Banqueting House

under a Rubens painting celebrating the divine right of kings.

A painting the King had commissioned.

Unlike today, Whitehall in 1649 was narrow,

and this place was chosen for the execution of the King

to thwart any last-ditch attempts by royalist cavalry to rescue him.

Below me, and in front of a large throng of people,

King Charles I stepped through a window, onto a scaffold,

to face his fate.

In the space of 1,000 years,

the law devolved from being a rough code to settle local disputes

in Anglo-Saxon England,

into an independent institution,

so powerful that it was capable of killing the King of England.

Charles I and the monarchy had been swept aside.

But in 1649, there was a fear that England had simply swapped

one tyrannical regime for another.

In an attempt to impose order on the chaos unleashed by the Civil War,

Oliver Cromwell himself was stamping down on dissenters,

whether religious groups like the Ranters,

or political movements, like the Levellers.

Radical groups could no longer look to Parliament

to uphold the law in the cause of liberty.

Individuals would have to deploy the law themselves.

And none more so than the leading leveller John Lilburne.

John Lilburne believed that the time had now come

for all the men of England to claim their rights.

Freedom of worship and universal suffrage.

These liberties, he believed,

were not bestowed upon them by government or by the law,

they were the birthright of all Englishmen.

Lilburne exploited the power of the printing press

to propagate his views and energise his supporters.

His secretly published diatribes were passionate, rousing,

and seditious.

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

by a network of his sympathisers.

Freedom of speech was limited in Lilburne's day.

Lilburne's words managed to infuriate every administration

under which he lived.

They would repeatedly lock him up to shut him up.

But Lilburne had a crucial legal weapon on his side.

One enshrined in the Petition of Right.

There had been many ways by which people had tried to escape imprisonment.

Filing through bars, climbing over walls, digging tunnels,

but none has the simple elegance of using a small piece of paper

to fling open the doors.

This is the magic of habeas corpus.

John Lilburn thought this piece of paper

could be the key to his freedom.

Here's how habeas corpus works in practice -

a document known as a writ is delivered to the jailer saying,

we direct you to have the body, habeas corpus in Latin,

of say, Harry Potter, before this court, along with the reason for detention.

If the jailer cannot satisfy the court that the reason is lawful,

then Harry Potter walks free.

Habeas corpus is a remedy against arbitrary arrest,

and unlawful imprisonment.

Lilburne employed habeas corpus more often than anyone in history.

The results were more symbolic than actual.

He was able to highlight his predicament

and embarrass the authorities,

yet he'd still be sent back to jail.

If anything showed how the law was being subverted, it was this.

The authorities knew they couldn't get away with it forever.

In March 1649, Lilburne's latest pamphlet attacking Cromwell's regime

got him arrested.

While Lilburne was being held, Parliament created a new law.

It made it treasonable to call the government tyrannical,

or unlawful in print.

A mutiny in Oxfordshire brought things to a head.

Lilburne's pamphlets were blamed for goading the troops to revolt.

Cromwell put Lilburne on trial for publishing seditious pamphlets,

under this convenient new treason law.

Cromwell left for Ireland,

safe in the knowledge that Lilburne was all but a dead man.

The evidence against Lilburne was very strong.

This time, he had been lawfully detained, charged, and put on trial,

and in those circumstances, habeas corpus was both irrelevant and impotent.

Worse still, Lilburne was going to defend himself.

And, as we lawyers like to say,

he who represents himself has a fool for a client.

But John Lilburne was no fool.

He was perhaps the greatest amateur advocate

ever to set foot in an English court.

I met historian Ted Vallance

to find out more about how Lilburne fought for his life.

His courtroom performance is incredible,

in terms of the amount of legal citations that he uses in his speeches.

So he really wows the jury as well with his legal knowledge.

Even though he keeps requesting legal counsel,

there's this, kind of, double play here.

He says, "I need legal help" all the time,

yet he's quoting verbatim from Coke.

And from various other authorities at the same time.

And what he does really nicely, all the way through the trial,

is chip away at the court's standing,

he suggests this isn't really a legitimate court.

He does things like refer to the president of the court,

Lord President Bradshaw, just as Mr Bradshaw,

just to pull down those people who are accusing him,

take them down a peg or two.

Some extraordinary things happened during the trial,

one I think involved a chamber pot.

He keeps asking to have a toilet break,

he keeps saying he's been standing for a long time at the bar,

and he needs to go and relieve himself.

And the court is, sort of, fed up with these filibustering tactics,

and say, no, you can't go to the lavatory,

we've got to get on with our proceedings, it's a very important trial.

And he says, well, if you won't let me have a toilet break,

then at least let me have a chamber pot that I can use,

and they do actually bring in a chamber pot

for him to actually use within the courtroom.

-And he does that in front of the jury?

-Yes, yes.

Lilburne had mounted a defence few barristers could better today.

How would the jury react?

Finally, the foreman announced him not guilty,

his life was saved,

and the cheers from his supporters lasted over half an hour.

At his trial, Lilburne won important rights -

the right to a vigorous self defence,

to challenge seeming unfairness in court procedures,

and to take comfort breaks.

Lilburne had woven the law into a safety net

that ensured Parliament couldn't silence him.

Now, just as Charles I had used the Star Chamber,

Cromwell needed to find a way of dealing with Lilburne

outside the normal parameters of the legal system.

The next time Lilburne stepped out of line,

Cromwell would have something up his sleeve.

Before Lilburne could issue a writ of habeas corpus,

he was shipped across the English Channel,

beyond the reach of the law.

On this offshore military outpost,

the normal protections of English law

were almost impossible to employ.

Jersey was Oliver Cromwell's Guantanamo Bay.

Lilburne's extraordinary rendition

took him from the relative comfort of the tower

to here, Mont Orgueil Castle.

Cromwell wasn't prepared to take any more chances

with a man like John Lilburne

and despatched him here to Jersey.

Isolated on an island,

out of sight and out of mind,

he was beyond the effective reach of habeas corpus.

Castle curator Doug Ford

gave me a much warmer welcome than Lilburne received.

So, this is Lilburne's cell?

This is Lilburne's cell, yes.

It's his bedchamber from the 1640s through to the 1660s.

This is where important prisoners were lodged.

In the summer, it's still quite chilly

-and I notice the walls look and feel damp.

-Yes.

Yes, we're very exposed up here at the top of the cliff.

So, what's the prospect he would have from up here?

Well, from here, you can see straight over to the east. There's Normandy.

-On the horizon there?

-On the horizon, yes.

-Some prospect!

-Indeed.

'Normandy was not just on the horizon, it was in the language.

'The locals spoke not English, but Norman French.

'It was solitary confinement by language barrier.

'A verbal island that prevented Freeborn John

'smuggling legal appeals out.'

Lilburne was offered his freedom if he would stop agitating against the government.

But being Lilburne, he would not back down.

A year's imprisonment in the conditions of this castle, however,

if it couldn't destroy his spirit, left him a largely broken man.

The damage to his health proved mortal.

John Lilburne died aged 42.

But his legacy continued.

Jersey was an island-sized loophole in the petition of right.

All had access to habeas corpus,

except in places such as this.

Whilst that might suit the government,

voices of discontent were muttering on the backbenches.

Increasingly, MPs were showing disquiet about this legal sleight of hand.

And how the issue was resolved

makes one of the most peculiar parliamentary tales.

A habeas corpus bill was drawn up

for prevention of imprisonment beyond the seas.

No-one would be placed in Lilburne's legal limbo again.

But each time the bill looked likely to win,

the House of Lords voted against it.

It was hit back and forth. Now it faced yet another Lords defeat.

The opposing sides each appointed a lord as a teller.

Lord Norris for the noes and Lord Grey for the ayes.

The story goes that Lord Norris,

a man subject to the vapours, was easily distracted.

A particularly fat lord came by to be counted

and Grey said, "Ten!"

This rather feeble jest soon became very serious.

Lord Norris failed to see either the joke

or that his opponent had added nine extra votes.

The bill went through by a majority of two.

Now no-one could be imprisoned beyond the seas.

Nowhere in the Empire was beyond the reach of habeas corpus.

A fact that would later have huge,

rather unforeseen consequences.

And all thanks to one...fat...lord.

In 2004, the US Supreme Court

ruled that detention in Guantanamo Bay was illegal

because it infringed the Habeas Corpus Act.

America still looks to pre-independence English law for precedent.

Back in 17th-Century England, when Oliver Cromwell died,

the regime he founded would soon collapse.

The power vacuum was swiftly filled

as the heir of Charles I was restored to the throne.

Having had Cromwell's head placed on a stake

and John Cook, the man who'd prosecuted his father,

hung, drawn and quartered,

Charles II resumed the Stuarts' favourite family pastime -

religious persecution.

A new law targeted religions outside the Church of England.

It severely restricted all non-conformist worship.

The Conventicle Act banned any religious assembly

of more than five non-Anglicans.

Thousands were prosecuted under the act.

Catholics, Presbyterians, Quakers.

And those found guilty were subject to imprisonment

or even transportation.

But that didn't stop two gutsy Quakers defying the law.

William Mead and William Penn had not just broken the rule of five.

They'd been addressing a crowd of hundreds when they were arrested.

Personally, I should love to have defended them.

It was outrageous legislation.

But it would have been an uphill struggle.

In law, they were banged to rights.

But although they were guilty by the letter of the law,

many Englishmen felt the law was morally wrong.

And luckily for the defendants, four of them were on the jury.

These four jurymen, led by a merchant called Edward Bushel,

bravely declined to find the defendants guilty

of a criminal offence.

The furious judge called Bushel impudent

and threatened to put his mark on him.

But Bushel held firm

and soon the remainder of the jury followed suit.

Their verdict was not guilty.

When the jury failed to bring in the right verdict,

the judge shut them up without meat or drink,

fire or tobacco,

to reconsider their decision.

Or to starve.

The conditions in Newgate Jail were so bad

that one in ten prisoners died there.

But habeas corpus was waiting to strike again.

Edward Bushel managed to get a writ

heard before Chief Justice Vaughan.

The case had become infamous.

And Westminster Hall was hanging on Vaughan's decision.

What happened next would have a lasting legal impact.

I asked the current Lord Chief Justice,

the highest judge in the land, about Vaughan's ruling.

He declared the jury should return verdicts

in accordance with their conscience

and that no juror should ever be punished for the verdict he reached.

How significant was the case of Edward Bushel?

It was absolutely crucial.

This was a remarkable moment in our history.

Chief Justice Vaughan made it absolutely plain

that that was the end of any possibility

of a juryman being punished for his verdict.

And it never happened again. And never has.

The jury were finally freed.

But only after spending several weeks

in England's most notorious jail.

Today, juries are free to give their verdict without recrimination,

no matter how perverse it appears to a judge.

Over the course of the 17th Century,

the liberties of the English had undergone

an extraordinary change for the better.

This was thanks not only to men

like Edward Bushel and John Lilburne,

but also to the legal instrument at the heart of their stories.

Habeas corpus had served Englishmen well.

Could it now deal with an horrific abuse

which the English were inflicting on others?

1771. The Thames docks.

A legal document is raced down to a ship

that is about to set sail with its cargo for Jamaica.

The document required the ship's captain

to produce his cargo before the Chief Justice.

The document was a writ of habeas corpus.

The cargo, a slave called James Somerset.

By putting Somerset in chains,

the ship's captain had become his jailer,

answerable to the law.

And as we have seen, habeas corpus gives a prisoner the power

to compel his jailer to justify his imprisonment.

A realisation swept across the slave trade.

The very legality of slavery itself

was going to be tested in court.

So, who was James Somerset and how had he come to be here?

I asked Arthur Torrington,

who has studied the history of slavery.

James Somerset was kidnapped and taken to Virginia.

He was bought by a gentleman by the name of Charles Stewart.

Um...a boy of nine, enslaved,

was just a pageboy, was just a helper.

But eventually, about ten or so years after,

this Mr Stewart brought him to London.

And that's when all the things began to change.

James Somerset escaped.

Frightened and in a strange land,

he sought refuge with members of London's black community.

He must have believed that you can run away and it's all right.

But whereas his master felt that this is a bit of, um...

Well, he was ungrateful.

That was what Stewart had said.

And therefore, what Stewart did

was to get one of his friends, or he paid somebody to do it,

and eventually, they actually got hold

and they kidnapped James Somerset and put him on a ship.

Fortunately, while Somerset was on the run,

he had encountered abolitionists.

Their leader, Granville Sharp,

was seeking to challenge the legal basis of slavery.

When he heard of Somerset's plight,

he knew he had found the perfect test case.

In the case of Granville Sharp, he felt that these are human,

and therefore, human beings cannot be and should not be

treated in that particular way,

in which they are enslaved, they are not given human rights and so on.

So Sharp was determined to break that cycle if he could.

At bottom, this was an argument

about whether a slave had rights on British soil.

Rule Britannia, the popular anthem of the era,

boasted that Britons never shall be slaves.

Now the legal system was being asked,

"Can slaves ever be Britons?"

Did the law regard a slave as property, like this boat?

A writ of habeas corpus in this case would be meaningless,

or would the law see a slave as a human being?

If so, habeas corpus could challenge

their transportation out of the realm without their consent.

Ultimately, the judgement in this case

would reverberate on both sides of the Atlantic.

The case went to the very top, to Lord Mansfield.

The slave traders could have expected Mansfield to be their ally.

Of Scottish noble birth, he embodied the establishment.

From his imposing home, Kenwood House,

to his rulings embracing free trade.

He had been leader of both Houses of Parliament

and was the highest judge in the land.

Lord Chief Justice.

In this fine library, the erudite Lord Mansfield studied the law.

And there he is in all his glory,

robed in ermine, reading Cicero,

with Homer inspiring him,

and the pillar of Solomon behind him.

As the case ground on in Westminster Hall,

Lord Mansfield is said to have proclaimed,

"Let justice be done, though the heavens fall."

Both sides were well represented.

The abolitionists' barristers claimed there was no law

legalising slavery in this country,

and so it must be illegal.

The slavers' counsel countered by saying that

as contracts for the sale of slaves were recognised in English law,

that must validate slavery in England.

The court adjourned for Lord Mansfield to prepare his judgement.

Did the law of Virginia have any standing in England?

Was slavery sanctioned or at least permitted under common law?

He pondered long and hard on this momentous task.

Lord Mansfield brooded over the case.

What did the law say?

What did his heart say?

What impact would a ruling on the James Somerset case have?

Granville Sharp, the great abolitionist,

was anxiously awaiting the ruling.

But having clashed with Mansfield in the past,

he didn't come to court to avoid antagonising the judge.

So he did not hear the judgement delivered,

staying instead at his home.

The result was sprinted through the streets to him.

In this street, somewhere near that spot,

Granville Sharp answered his door.

There in front of him, smiling, exultant,

stood James Somerset, a free man.

It was a staggering decision.

How had Lord Mansfield

come to rule in a mere slave's favour?

Although he may not have realised it,

Sharp had a secret agent at the very heart of this house.

She was the daughter of this man, Captain John Lindsay.

Mansfield's nephew.

Her name was Dido Bell,

and it's believed her mother was an African slave.

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

Was Mansfield's landmark judgement

influenced by his fondness for her?

In his judgement, Lord Mansfield said

that the state of slavery is of such a nature so odious

that the English common law could never accept it.

Now, whether he meant by this

to ignite a spark that would end slavery is unclear,

but that is how his judgement was interpreted both here and abroad.

One single writ of habeas corpus

had released not just one man from bondage,

but was to mark the start of freedom

for all the 15,000 slaves then in England.

Habeas corpus remains part of English law.

But it rarely needs to be used today.

In my entire career, I've never had to seek it

on behalf of any of my clients, nor has anybody else I know.

We simply take it for granted

that everybody has the right to know the reasons for their detention,

just as they have the right to a fair trial by an independent jury

under the auspices of an impartial judge.

Arbitrary action by the state at any stage in the legal process

is something we hope, like slavery,

has been consigned to history.

We may regard these liberties as freeborn rights,

to use John Lilburne's words,

but we mustn't forget just how hard won they were.

Next time - revolution in the courtroom.

How the criminal trial turned from a one-sided struggle

in the shadow of the noose

into the fairest court system on Earth.

It's the story of how barristers took centre stage

and of how the law finally admitted its own fallibility.

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