The Strange Case of the Law


The Strange Case of the Law

Barrister Harry Potter looks at the history of English justice, from the early concept of compensation, through the development of the jury to the founding of the police.


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Transcript


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The first thing any legal system needs is a set of laws.

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And I've come to Rochester in Kent

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to see the earliest-known English law code.

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Established in the fifth century,

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Kent is thought to have been the first Anglo-Saxon kingdom.

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Rochester's imposing cathedral and castle

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testify to the region's historical importance.

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But Rochester boasts yet another treasure.

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Which, for a lawyer such as me, is even more significant.

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Stored in the council archives is a book of enormous importance.

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Not just to the law, but to the entire English-speaking world.

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This is the Textus Roffensis,

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or the Rochester Book.

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And it contains a number of documents,

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but the most significant is the first.

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And it's this.

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A few pages...

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of a text...

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dating back to 600.

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It's not only the first writing

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in English that we have,

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so it's the beginning of English literature,

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it's the first law code that we have.

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It's a very simple list of fines or compensation

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for accidents, injuries, wrongs.

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Gif feax fang geword. L. sceatta tobote.

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If hair seizure takes place,

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50 sceatta as compensation.

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Gif eare of weord aslagen...

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If an ear becomes struck off,

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one is to compensate with 12 shillings.

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If one strikes off a thumb, 20 shillings.

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And this is perhaps the most sensitive one.

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If someone disables a genital member,

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one is to buy him off with three person payments.

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A person payment was the monetary value given to a man's life.

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In this instance, the victim was compensated

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for the children he would no longer be able to father.

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We tend to think that the compensation culture

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is something imported from America.

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But here it is at the very start of English law.

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If laws are the essential basis of any legal system,

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the next step is setting up institutions to apply them.

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Courts.

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Anglo-Saxon society was ordered into areas known as hundreds -

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so-called, according to one theory,

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because they may have contained roughly 100 homesteads.

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These had their own assemblies to deal with minor cases.

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More serious disputes and crimes

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were referred up to shire courts,

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forerunners of our county courts.

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This mound goes by the characterful name of Scutchamer Knob.

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Sometimes corrupted to Scotsman's knob.

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Anyway, in Anglo-Saxon times, the shire court of Berkshire met here

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and you couldn't have missed it.

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Sited prominently on the ridgeway,

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assemblies here would have been visible for miles around.

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Sitting in judgement in the shire court

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might have been a senior cleric, such as a bishop,

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especially when a dispute involved the Church.

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Or otherwise, a representative of the King.

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A figure known as a shire-reeve, or sheriff.

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And trials would be resolved using a remarkably simple method of proof.

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Early trials were based on oaths.

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To prove your innocence, all you had to do

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was to swear an oath that you weren't guilty

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and to get people to come here to swear to your honesty.

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If you could rustle up the prescribed level of support,

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you were off the hook.

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Just how many oath helpers you needed

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depended on your social status and the nature of the alleged offence.

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One 10th century text stipulates 36 people were required

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in a case of arson or murder.

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To us, it all sounds very odd and open to abuse.

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But this was a society suffused with religious faith.

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To lie on oath was to risk damnation.

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And your friends might be less than keen to support you

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if they considered you a liability

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who could compromise their good standing in the community.

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So, yes, it was simple,

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but that needn't mean it was ineffective or unjust.

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The Anglo-Saxons didn't distinguish between what we now regard

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as civil and criminal law.

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So oaths could be used to resolve property disputes, as well.

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Of course, if two opposing parties swore contradictory oaths,

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it meant at least one of them was committing perjury.

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Lying on oath.

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Would this system work now?

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With their souls at stake,

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would Anglo-Saxons have been more reluctant to lie

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than we might be today when we swear on oath to tell the truth?

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Some of the best physical evidence

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for how justice operated in later Anglo-Saxon England

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has been found on the outskirts of Winchester.

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The archaeologist Andrew Reynolds

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took me to Harestock, close to the old Roman road.

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What was found here that makes it so special?

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Some archaeological excavation

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uncovered the remains of 16 individuals

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buried in a series of graves.

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And the modern name Harestock

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is derived from the old English Shaffod Stockan,

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which means, literally means heads on stakes.

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It basically tells us that it's an Anglo-Saxon

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judicial execution cemetery.

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So you can imagine here in the Anglo-Saxon period,

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a traveller moving along the, the road behind us,

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we're at a particularly prominent place in the landscape here.

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You can see we're on rising ground. So a very prominent place.

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A series of poles with heads on, on sticks.

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Very dramatic sight for travellers.

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As a lawyer, I put great emphasis on the quality of the evidence.

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The remains recovered from the Harestock site

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are now kept in storage by Winchester museums.

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Andrew showed me one example of a typical victim.

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Now, this is astonishingly well preserved

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for somebody who has been in the ground a thousand years.

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And in laymen's eyes, there's nothing here to indicate

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anything other than the sad death of a young person.

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Well, it was a very different picture

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when the body was actually taken out of the ground.

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Because rather than the hands being to either side, as they are here,

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when the body was excavated, they were found crossed over each other,

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underneath or behind the back.

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And that's a clear indication, really, that you've got foul play

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or something that's not quite usual going on there.

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Um...but the greatest indication that this is not a normal burial

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is the fact that the head,

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which you can see here in the correct anatomical position,

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was actually found by the side of the leg.

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This was a clear case of execution by beheading.

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A punishment not just for committing murder, but theft, too.

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So, how was decapitation done?

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Well, almost certainly with a sword,

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probably with the hands tied behind the back.

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If you take a look at this bone here,

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where the blade of the sword has caught the underside of the jaw

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when the person's executed.

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-And that would be one blow, would it?

-That would be one blow.

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In the absence of a police force,

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the deterrent for crime

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was the threat of mutilation or death.

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Take notice of these heads on stakes...and beware!

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Like much of Europe, the later Anglo-Saxons

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developed a way of determining proof

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which used the power of the elements of water and of fire.

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And which invited God himself to intervene in the trial.

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This was the Judicium Dei.

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The judgement of God.

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Trial by ordeal.

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If you were suspected of a crime,

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you were subjected to a ritualised,

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but painful and dangerous test.

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God would come to the aid of the innocent,

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but for the guilty, there would be no such comfort.

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The ordeal was neither torture nor punishment.

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It was a mode of proof.

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Only if you failed were you punished.

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Because of their religious element,

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ordeals were supervised by the clergy.

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Two main kinds of ordeal were used in England.

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The first involved carrying a piece of red-hot iron in your bare hand.

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Before the ordeal, the priest called upon God

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to bless the hot iron

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so that it would be a pleasing coldness

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to those who carry it with justice and fortitude,

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but a burning fire to the wicked.

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The accused had to walk a few paces holding the iron.

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The hand was then bandaged.

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And after three days, was inspected to see if it were healing.

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If the wound were clean, that was proof of your innocence.

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But if it had started to fester, you were deemed guilty.

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The second kind of ordeal was more dangerous.

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You were bound and lowered into a body of sanctified water.

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And your guilt was determined by whether you floated or sank.

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Now, you might assume that sinking meant you were guilty.

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After all, you were much more likely to drown.

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But the belief was that the water was so pure as to repel sin.

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Sinking indicated innocence.

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Floating was proof of guilt.

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Ordeals like these may seem barbaric to us,

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but they were carried out in Christian Europe for centuries.

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I asked legal historian John Hudson what factors determined

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whether you were sent for ordeal in the first place.

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They seem to have been often proposed as a way of settling cases

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that you couldn't settle in other ways.

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For example, if you don't have any factual proof,

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no marks on the person who's accused,

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no evidence that they're holding onto stolen goods,

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no blood on their hands,

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then there's a chance that no-one will know who committed the offence.

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And then the likelihood is that they would have to go to trial by ordeal.

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The number of people who actually undergo the ordeal,

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having been threatened with it, may well be much smaller.

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It seems to have been a way of trying to scare people

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either into confessing, or very often, into settling.

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When the Normans invaded in 1066,

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they brought with them their own preferred method of ordeal.

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In trial by combat, God would grant victory to the righteous.

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This was seen by the wealthy as a more dignified means

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of resolving civil disputes than hot iron or water.

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It could also be used in criminal cases.

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Good!

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What was the purpose of the combat?

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Was it to kill your opponent, or just bludgeon them into submission?

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Well, for a civil case,

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which would be about large amounts of money or about land,

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you would probably try to bludgeon them into submission.

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And one opponent is on the ground and calls out, "I yield."

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My Lord!

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Criminal cases were an altogether less dignified affair,

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often involving the kind of riff-raff

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who couldn't afford a decent blade.

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This wooden stake would have been a far more likely weapon

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in trial by combat in a criminal case.

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And, um...in so many words,

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you try to hit your opponent where it hurts.

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Head, shoulder, arms,

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knees, feet, um...and all the male places.

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Would you like to try it?

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-So I would go like that, or that, or boink.

-Yes.

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And what about that?

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Oh, yes. I think so.

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There is no reason to believe

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that this wouldn't have been sharpened to a very nasty point

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and it may even have had nails in it.

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Although it was a trial by combat,

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it was often hard to distinguish between trial and punishment.

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When you beat your opponent to the ground, you might as well kill them.

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Because afterwards, they'll be taken away and get executed, anyway.

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Either for the crime they were initially accused of,

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or if it's the other party that gets beaten to the ground,

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for having committed major acts of perjury.

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What might happen if you lost and survived

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is told in one of the few accounts of an English judicial duel.

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A certain Thomas of Eldersfield near Gloucester

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was defeated in combat by a man he'd been accused of wounding.

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Now, rather than having him hanged,

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the judges, being merciful,

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ordered that he merely be castrated and blinded.

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The victor and his family set about this task with a degree of relish,

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throwing his eyes on the ground and using his testicles as footballs -

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the local lads kicking them playfully at the girls.

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In the reign of Henry II,

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one important group remained beyond the grasp of the common law.

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The clergy.

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Henry's attempts to deal with that problem

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would come to define his reign

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and reach a head here in Canterbury.

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The clergy enjoyed their own legal system.

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Canon law.

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If you were in holy orders,

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you were subject solely to the control of the Church.

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The Crown couldn't touch you.

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No matter how serious the crime,

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a cleric would merely be ordered by his bishop to repent of his sins,

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whereas a layman might be mutilated or hanged.

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That is unless they claimed Benefit of Clergy.

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Benefit of Clergy provided

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perhaps the biggest loophole in English legal history.

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On the flimsiest of grounds, you could claim to be a cleric,

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thus removing your sanctified soul

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from the grasp of the secular authorities.

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Eventually, the benefit could be claimed

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merely by reciting the first verse of Psalm 51.

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Have mercy upon me, O, God, according to thy loving kindness.

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According unto the multitude of thy tender mercies,

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blot out my transgressions.

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Royal justice was unable to prosecute any member of the clergy

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who had committed a crime.

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This was perhaps the most serious challenge to Henry's authority.

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So when Henry appointed his close friend Thomas Becket

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as Archbishop of Canterbury,

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he did so in the hope that under Becket's leadership,

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the Church would conform and co-operate,

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and those of its clergy who committed serious offences

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would be subjected to royal justice.

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But Becket had his own agenda to maintain church authority.

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And he fell foul of the King, leading Henry to proclaim,

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"Will no-one rid me of this turbulent priest?"

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What happened next

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is one of the most famous stories of Medieval England.

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CHORAL SINGING

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On the night of 29th December, 1170,

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the story goes Becket was at evening prayer here in Canterbury Cathedral

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when he was confronted by four knights loyal to the King.

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They struck him down with repeated blows from their swords.

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And they were so ferocious that they sliced off the crown off his head

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so that, in the words of an eyewitness,

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"the blood white with the brain

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"and the brain no less red from the blood,

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"dyed the floor of the cathedral."

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It's unlikely Henry actually ordered Becket's murder.

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His archbishop's death undermined all that the King wanted

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as public opinion rallied around the Church.

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Becket became a martyr.

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And a repentant Henry felt he could no longer touch the issue

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of priests who had broken the law.

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It would take centuries before the clergy

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were subject to the secular law.

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And as for Benefit of Clergy,

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that would not be abolished until 1827.

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The reign of Henry II witnessed a profound change

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in the development of English justice.

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The King himself introduced a unified legal system

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for the whole country.

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A common law.

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He also presided over the development of the jury.

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Early in his reign, Henry had already established

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a system of roving royal justices,

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what we would now refer to as judges,

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who travelled the country ensuring this common law was being enforced

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by each and every shire court,

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and claiming all the fines that were due to the King.

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Now, Henry went one step further,

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decreeing that members of the public

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should play an essential role in this legal process.

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These so-called juries of presentment

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soon became common practice.

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Juries of presentment didn't consider evidence

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and determine guilt or innocence.

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Instead, they were representatives of local communities

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who had to report under oath

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all the crimes committed in their area

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and to name those they deemed responsible.

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The gradual emergence of this new system received an unexpected boost

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when suddenly, in 1215, Pope Innocent III

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banned the clergy from presiding over trials by ordeal,

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effectively withdrawing the Church from the legal process.

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Now it was no longer the Almighty,

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but a rather less exalted tribunal

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that would determine the outcome.

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The judge would ask the members of the jury

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when declaring whether the accused were guilty or not

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to give a truthful answer.

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In the Anglo-French of the time, "aver dit".

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Our verdict.

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The first known English jury trial took place in 1220.

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A woman called Alice, condemned for murder,

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accused five others of criminality.

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They chose the judgement of their neighbours -

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in the phrase of the time,

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putting themselves for good and ill upon a verdict.

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These neighbours decided that one man was lawful,

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but that four were thieves.

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And they were sent to the noose.

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By the late 13th century,

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such juries had become a familiar part of English law.

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Unlike modern ones, they didn't weigh evidence,

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but came to a decision based on their own knowledge or belief.

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For ordinary people to have such power

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in a society that was, in other respects,

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full of inequalities, was revolutionary.

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Your peers had been given an authority

0:22:540:22:56

that had previously been the preserve of God.

0:22:560:23:00

Your guilt was now decided in public

0:23:000:23:03

by members of the public,

0:23:030:23:06

independent of the state.

0:23:060:23:09

The jury.

0:23:090:23:10

The institution that most defines English justice truly begins here.

0:23:100:23:18

In the mid 17th century, in the years leading up to the Civil War,

0:23:270:23:32

England had a two-tier legal system.

0:23:320:23:34

The common law, and a system under royal authority...

0:23:340:23:38

..which allowed torture, and enabled the King to do as he saw fit.

0:23:400:23:43

Its court was held in the now notorious Star Chamber.

0:23:450:23:50

Near where I'm standing was the site of the court of Star Chamber.

0:23:500:23:54

Today, a byword for injustice and oppression.

0:23:540:23:58

But in its inception and throughout most of its history,

0:23:580:24:01

it represented precisely the opposite.

0:24:010:24:04

Star Chamber came to the forefront during the reign of Henry VII

0:24:070:24:12

after the Wars of the Roses,

0:24:120:24:14

a time of great turmoil in Tudor England

0:24:140:24:17

when nobles ran their territories like Mafia bosses

0:24:170:24:21

and disputes could end in what we would now call contract killings.

0:24:210:24:27

The nobility seemed beyond the law.

0:24:270:24:30

They could intimidate juries and bribe judges.

0:24:300:24:35

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

0:24:350:24:40

It had powers that could break this English Mafia.

0:24:400:24:44

No amount of money could buy this court.

0:24:440:24:48

And soon, the previously untouchable nobles

0:24:480:24:52

found themselves in the dock.

0:24:520:24:54

It may look like an upmarket country pub,

0:24:550:24:58

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

0:24:580:25:03

Justice was dispensed under this ceiling of gold stars,

0:25:030:25:08

from which the court gets its name Star Chamber.

0:25:080:25:12

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

0:25:130:25:17

Instead, errant aristocrats were interrogated and judged

0:25:170:25:23

by members of the government itself.

0:25:230:25:26

The power of Star Chamber grew considerably under the Stuarts.

0:25:280:25:33

But by the time of Charles I,

0:25:340:25:36

it was widely recognised

0:25:360:25:38

as a symbol of misuse

0:25:380:25:40

and of the abuse of power

0:25:400:25:43

by the King and his circle.

0:25:430:25:46

In 1629, Charles dismissed Parliament

0:25:470:25:50

and took control of the country

0:25:500:25:54

in what is now known as the Eleven Years' tyranny.

0:25:540:25:58

During this period, Charles used Star Chamber to raise taxes

0:25:580:26:03

by fining the wealthy on petty charges,

0:26:030:26:06

but also to clamp down on religious descent and political opposition.

0:26:060:26:11

Under this ceiling studded with stars,

0:26:150:26:18

disfiguring and degrading punishments

0:26:180:26:21

were imposed by cruelly imaginative judges,

0:26:210:26:25

the creatures of the King.

0:26:250:26:28

The victims of such treatment were those bold or rash enough

0:26:280:26:32

openly to oppose Charles' arbitrary rule.

0:26:320:26:37

Some had their noses slit.

0:26:370:26:41

Others, their ears cut off.

0:26:410:26:44

Public displays of royal displeasure.

0:26:440:26:47

Those reluctant to incriminate themselves or others

0:26:490:26:54

might be persuaded to change their minds by a trip to the Tower.

0:26:540:27:02

It was home to the rack.

0:27:060:27:09

Bridget Clifford from the Royal Armouries

0:27:110:27:14

revealed the Tower's dark secret.

0:27:140:27:17

For the poor unfortunates upon which this was used,

0:27:170:27:21

what would have been the procedure?

0:27:210:27:23

You would be set upon it,

0:27:230:27:25

the ropes would be applied to your ankles and to your wrists,

0:27:250:27:29

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

0:27:290:27:34

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

0:27:400:27:45

"One good foot longer than even God made him."

0:27:450:27:50

What allegations or offences would this have been applied to?

0:27:510:27:54

Mainly treason.

0:27:540:27:56

Now, what constitutes that threat

0:27:560:27:59

can be a physical threat.

0:27:590:28:01

It can also be the fact that your religion

0:28:010:28:04

is seen to be standing against that

0:28:040:28:07

that the country approves of at the time.

0:28:070:28:09

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

0:28:150:28:19

The King ruled alone and supreme.

0:28:190:28:22

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

0:28:220:28:27

drained the royal finances.

0:28:270:28:30

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

0:28:300:28:36

Now back in the game, the MPs aimed to destroy

0:28:370:28:40

the hated institution of Charles' rule.

0:28:400:28:44

Torture warrants were made illegal.

0:28:440:28:47

No attempt to revive them has ever been made since.

0:28:470:28:51

And the victims of Star Chamber,

0:28:510:28:54

those who had lost money, liberty or ears,

0:28:540:28:58

called on Parliament to rein in

0:28:580:29:00

this other symbol of royal absolutism.

0:29:000:29:05

But they didn't just rein it in.

0:29:050:29:08

On July 5th, 1641,

0:29:080:29:10

Charles was forced to sign Star Chamber out of existence.

0:29:100:29:15

I'm here in the Parliamentary Archives

0:29:220:29:25

to see a document devised and drafted

0:29:250:29:28

largely by Edward Coke,

0:29:280:29:30

and whose significance to our constitutional history

0:29:300:29:34

is second only perhaps to that of Magna Carta itself.

0:29:340:29:38

It is the Petition of Right.

0:29:380:29:42

Edward Coke, the driving force behind the Petition of Right,

0:29:440:29:48

was perhaps the most influential judicial figure of his time.

0:29:480:29:53

During the reigns of James I and Charles I,

0:29:540:29:58

Coke had bravely fought for the supremacy of the common law

0:29:580:30:02

over the power of the monarchy.

0:30:020:30:05

So here it is, the Petition of Right itself.

0:30:050:30:10

Now, it may not look a great deal.

0:30:100:30:13

It's a piece of vellum with a lot of rather nicely-written words on them.

0:30:130:30:18

But, of course, its significance

0:30:180:30:20

is far more than just the document we have before us.

0:30:200:30:24

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

0:30:250:30:30

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

0:30:320:30:35

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

0:30:350:30:41

"What had always been.

0:30:410:30:43

"The civil liberties, the liberties of the subject

0:30:430:30:47

"enshrined by Parliamentary Statute."

0:30:470:30:49

And then they go onto the meat of the complaint.

0:30:490:30:52

That, "Despite all these enactments in the past,

0:30:520:30:55

"things have gone horribly wrong.

0:30:550:30:58

"And in particular,

0:30:580:31:00

"diverse of His Majesty's subjects

0:31:000:31:03

"had of late been imprisoned.

0:31:030:31:06

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

0:31:060:31:10

"to challenge the conditions of their detention,

0:31:100:31:14

"they were denied justice

0:31:140:31:17

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

0:31:170:31:20

Edward Coke was clear this would never happen again, insisting,

0:31:210:31:26

"That no man hereafter

0:31:260:31:28

"be compelled to pay taxes without Parliamentary authority

0:31:280:31:33

"or be imprisoned without cause."

0:31:330:31:36

Any individual who was imprisoned

0:31:380:31:40

could demand that their jailor legally justified their actions.

0:31:400:31:44

This idea central to our liberty

0:31:440:31:48

is known as habeas corpus.

0:31:480:31:51

It was a principle whose power

0:31:510:31:53

would grow immensely over subsequent decades.

0:31:530:31:56

Coke's ideals were even incorporated

0:31:570:32:00

into the Constitution of the United States of America.

0:32:000:32:04

A descendant of the Petition of Right itself.

0:32:040:32:09

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

0:32:090:32:14

This is a document that is one of the foundation documents

0:32:140:32:17

of civil liberties.

0:32:170:32:19

In the space of a thousand years,

0:32:280:32:30

the law had evolved from being a rough code to settle local disputes

0:32:300:32:34

in Anglo-Saxon England

0:32:340:32:36

into an independent institution

0:32:360:32:39

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

0:32:390:32:45

Charles I and the monarchy had been swept aside.

0:32:490:32:55

But in 1649, there was a fear

0:32:550:32:58

that England had simply swapped one tyrannical regime for another.

0:32:580:33:03

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

0:33:040:33:08

Oliver Cromwell himself was stamping down on dissenters

0:33:080:33:13

with the religious groups, like Ranters,

0:33:130:33:16

or political movements, like the Levellers.

0:33:160:33:19

Radical groups could no longer look to Parliament

0:33:200:33:24

to uphold the law in the cause of liberty.

0:33:240:33:27

Individuals would have to deploy the law themselves.

0:33:270:33:31

And none more so than the leading Leveller, John Lilburne.

0:33:320:33:38

He believed that the time had now come

0:33:390:33:42

for all the men of England to claim their ancient liberties.

0:33:420:33:45

He exploited the power of the printing press

0:33:450:33:48

to secretly publish and distribute his radical views,

0:33:480:33:52

which quickly came to infuriate the authorities.

0:33:520:33:56

They'd repeatedly lock him up to shut him up,

0:33:560:34:00

but Lilburne had a crucial legal weapon on his side.

0:34:000:34:04

Habeas corpus.

0:34:040:34:06

And he thought that this piece of paper could be his key to freedom.

0:34:060:34:11

Here's how habeas corpus works in practice.

0:34:130:34:15

A document known as a writ is delivered to the jailor, saying,

0:34:150:34:20

"We direct you to have the body..."

0:34:200:34:22

- habeas corpus in Latin - of, say, Harry Potter,

0:34:220:34:26

"..before this court, along with the reason for detention."

0:34:260:34:30

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

0:34:300:34:34

then Harry Potter walks free.

0:34:340:34:37

Habeas corpus is a remedy

0:34:370:34:40

against arbitrary arrest and unlawful imprisonment.

0:34:400:34:44

Lilburne employed habeas corpus more often than anyone in history.

0:34:450:34:50

The results were more symbolic than actual.

0:34:500:34:54

He was able to highlight his predicament

0:34:540:34:56

and embarrass the authorities.

0:34:560:34:59

Yet he'd still be sent back to jail.

0:35:000:35:03

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

0:35:030:35:08

In March 1649, Lilburne's latest pamphlet

0:35:080:35:11

attacking Cromwell's regime got him arrested.

0:35:110:35:15

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

0:35:150:35:20

It made it treasonable

0:35:200:35:22

to call the government tyrannical or unlawful in print.

0:35:220:35:26

A mutiny in Oxfordshire brought things to a head.

0:35:290:35:32

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

0:35:320:35:37

Cromwell put Lilburne on trial for publishing seditious pamphlets

0:35:370:35:41

under this convenient new treason law.

0:35:410:35:45

Cromwell then left for Ireland,

0:35:450:35:48

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

0:35:480:35:52

But Lilburne was no fool.

0:35:520:35:55

And, equipped with an astounding knowledge

0:35:550:35:57

of current legal practices,

0:35:570:35:59

he took delight in defending himself.

0:35:590:36:03

Throughout the trial, he skilfully undermined

0:36:030:36:07

the legitimacy of the court -

0:36:070:36:09

refusing to call the presiding judge Lord President,

0:36:090:36:13

but also by requesting numerous comfort breaks

0:36:130:36:17

due to his prolonged period of standing in the dock.

0:36:170:36:22

Astonishingly, the court allowed him to have a chamber pot,

0:36:220:36:27

which Lilburne duly used in front of the jury.

0:36:270:36:31

Lilburne had mounted an impassioned defence

0:36:320:36:36

few barristers could better today.

0:36:360:36:39

How would the jury react?

0:36:390:36:42

Finally, the foreman announced him not guilty.

0:36:420:36:47

His life was saved

0:36:470:36:48

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

0:36:480:36:52

At his trial, Lilburne won important rights.

0:36:550:36:59

The right to a vigorous self-defence,

0:36:590:37:02

to challenge seeming unfairness in court procedures

0:37:020:37:05

and to take comfort breaks.

0:37:050:37:07

Lilburne had woven the law into a safety net

0:37:090:37:12

that ensured Parliament couldn't silence him.

0:37:120:37:16

Now, just as Charles I had used Star Chamber,

0:37:160:37:21

Cromwell needed to find a way of dealing with Lilburne

0:37:210:37:25

outside the normal parameters of the legal system.

0:37:250:37:30

The next time Lilburne stepped out of line,

0:37:300:37:32

Cromwell would have something up his sleeve.

0:37:320:37:36

Before he could issue a writ of habeas corpus,

0:37:370:37:40

Lilburne was shipped across the English Channel,

0:37:400:37:43

beyond the reach of the law.

0:37:430:37:46

On this offshore military outpost,

0:37:460:37:49

the normal protections of English law

0:37:490:37:51

were almost impossible to employ.

0:37:510:37:54

Jersey was Oliver Cromwell's Guantanamo Bay.

0:37:540:37:58

Lilburne's extraordinary rendition

0:38:020:38:05

took him from the relative comfort of the Tower

0:38:050:38:08

to here, Mont Orgueil Castle.

0:38:080:38:11

Cromwell wasn't prepared to take any more chances

0:38:130:38:16

with a man like John Lilburne

0:38:160:38:17

and dispatched him here to Jersey.

0:38:170:38:19

Isolated on an island - out of sight and out of mind -

0:38:190:38:23

he was beyond the effective reach of habeas corpus.

0:38:230:38:27

..A major harbour...

0:38:270:38:29

'Castle curator Doug Ford

0:38:290:38:31

'gave me a much warmer welcome than Lilburne received.'

0:38:310:38:34

So this is Lilburne's cell?

0:38:370:38:39

This is Lilburne's cell, yes.

0:38:390:38:42

His bedchamber from the 1640s through to the 1660s.

0:38:420:38:45

This is where important prisoners were lodged.

0:38:450:38:48

Now, in the summer, it's still quite chilly

0:38:480:38:50

and I notice the walls look and feel damp.

0:38:500:38:54

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

0:38:540:38:57

Lilburne was offered his freedom

0:38:590:39:01

if he would just stop agitating against the Government,

0:39:010:39:05

but being Lilburne, he would not back down.

0:39:050:39:09

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

0:39:090:39:12

if it couldn't destroy his spirit,

0:39:120:39:14

left him a largely broken man.

0:39:140:39:17

In 1657, only two years after he was released,

0:39:220:39:26

John Lilburne died, aged 42.

0:39:260:39:30

But habeas corpus lives on to this day.

0:39:310:39:37

With the restoration of the English Monarchy in 1660,

0:39:460:39:51

Charles II resumed the Stuarts' favourite family pastime -

0:39:510:39:55

religious persecution.

0:39:550:39:58

A new law targeted religions outside the Church of England.

0:40:020:40:07

It severely restricted all non-conformist worship.

0:40:070:40:11

The Conventicle Act

0:40:110:40:13

banned any assembly of more than five non-Anglicans.

0:40:130:40:17

Thousands were prosecuted under the Act -

0:40:180:40:21

Catholics, Presbyterians, Quakers -

0:40:210:40:24

and those found guilty were subject to imprisonment,

0:40:240:40:29

or even transportation.

0:40:290:40:30

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

0:40:320:40:36

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

0:40:360:40:40

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

0:40:400:40:44

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

0:40:450:40:48

many Englishmen felt the law was morally wrong.

0:40:480:40:53

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

0:40:530:40:57

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

0:40:570:41:02

bravely declined to find the defendants

0:41:020:41:06

guilty of a criminal offence.

0:41:060:41:08

The furious judge called Bushel impudent

0:41:080:41:13

and threatened to "put his mark on him",

0:41:130:41:16

but Bushel held firm

0:41:160:41:17

and soon the remainder of the jury followed suit.

0:41:170:41:20

Their verdict was not guilty.

0:41:200:41:23

When the jury failed to bring in the right verdict,

0:41:250:41:29

the judge shut them up without meat or drink,

0:41:290:41:32

fire or tobacco,

0:41:320:41:34

to reconsider their decision...

0:41:340:41:36

..or to starve.

0:41:380:41:39

The conditions in Newgate Gaol were so bad

0:41:420:41:46

that one in ten prisoners died there.

0:41:460:41:49

But habeas corpus was waiting to strike again.

0:41:500:41:54

Edward Bushel managed to get a writ heard before Chief Justice Vaughan.

0:41:550:42:00

The case had become infamous

0:42:000:42:04

and Westminster Hall was hanging on Vaughan's decision.

0:42:040:42:08

'What happened next would have a lasting legal impact.'

0:42:110:42:15

'I asked the current Lord Chief Justice,

0:42:170:42:20

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

0:42:200:42:23

And he declared

0:42:260:42:27

that juries should return verdicts in accordance with their conscience

0:42:270:42:31

and that no juror should ever be punished

0:42:310:42:34

for the verdict that he reached.

0:42:340:42:35

How significant was the case of Edward Bushel?

0:42:350:42:38

It was absolutely crucial.

0:42:380:42:40

This was a remarkable moment in our history,

0:42:400:42:44

that Chief Justice Vaughan made it absolutely plain

0:42:440:42:47

that that was the end of any possibility of a juryman

0:42:470:42:50

being punished for his verdict.

0:42:500:42:52

And it never happened again and never has.

0:42:520:42:55

The jury were finally freed,

0:42:560:42:58

but only after spending several weeks

0:42:580:43:01

in England's most notorious gaol.

0:43:010:43:04

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

0:43:070:43:13

no matter how perverse it appears to a judge.

0:43:130:43:16

FOGHORN BLARES

0:43:210:43:23

1771, the Thames docks.

0:43:230:43:27

A legal document is raced down to a ship

0:43:270:43:29

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

0:43:290:43:33

The document required the ship's captain

0:43:330:43:37

to produce his cargo before the Chief Justice.

0:43:370:43:40

The document was a writ of habeas corpus,

0:43:410:43:45

the cargo a slave called James Somerset.

0:43:450:43:50

By putting Somerset in chains,

0:43:540:43:56

the ship's captain had become his gaoler, answerable to the law.

0:43:560:44:01

Habeas corpus gives a prisoner the power

0:44:020:44:05

to compel his gaoler to justify his detention.

0:44:050:44:10

A realisation swept across the slave trade.

0:44:100:44:13

The very legality of slavery itself was going to be tested in court.

0:44:130:44:19

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

0:44:220:44:27

I asked Arthur Torrington, who has studied the history of slavery.

0:44:270:44:33

James Somerset was kidnapped and taken to Virginia.

0:44:330:44:35

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

0:44:350:44:40

A boy of nine, enslaved,

0:44:400:44:43

was just a pageboy, just a helper,

0:44:430:44:47

but eventually about ten or so years after,

0:44:470:44:52

this Mr Stewart brought him to London

0:44:520:44:55

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

0:44:550:44:58

James Somerset escaped.

0:44:590:45:02

Frightened and in a strange land,

0:45:020:45:05

he sought refuge in London's 15,000-strong black community.

0:45:050:45:09

And when the leading slavery abolitionist Granville Sharp

0:45:100:45:14

heard of Somerset's plight,

0:45:140:45:16

he knew he had found the perfect case

0:45:160:45:20

with which to test the very legality of slavery.

0:45:200:45:23

In the case of Granville Sharp,

0:45:240:45:26

he felt that these are human

0:45:260:45:28

and therefore these are human beings

0:45:280:45:30

that cannot be and should not be

0:45:300:45:32

treated in that particular way,

0:45:320:45:33

in which they are enslaved,

0:45:330:45:35

they are not given human rights and so on.

0:45:350:45:39

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

0:45:390:45:42

This was an argument about whether a slave had rights on British soil.

0:45:440:45:48

Did the law regard slaves as property?

0:45:490:45:53

If so, a writ of habeas corpus would be meaningless.

0:45:530:45:56

Or would the law see slaves as human beings?

0:45:560:46:00

If so, habeas corpus could challenge

0:46:000:46:03

their transportation out of the country.

0:46:030:46:05

Ultimately, the judgement in this case

0:46:050:46:08

would reverberate across the entire slave trade

0:46:080:46:12

on both sides of the Atlantic.

0:46:120:46:14

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

0:46:160:46:21

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

0:46:210:46:25

Of Scottish noble birth, he embodied the establishment.

0:46:250:46:29

From his imposing home, Kenwood House,

0:46:290:46:33

to his rulings embracing free trade,

0:46:330:46:36

he had been prominent in both Houses of Parliament

0:46:360:46:40

and was the highest judge in the land, Lord Chief Justice.

0:46:400:46:44

As the case ground on in Westminster Hall,

0:46:480:46:52

Lord Mansfield is said to have proclaimed,

0:46:520:46:55

"Let justice be done though the heavens fall."

0:46:550:47:00

Both sides were well represented.

0:47:000:47:02

The abolitionist barristers claimed that there was no law

0:47:020:47:05

legalising slavery in this country and so it must be illegal.

0:47:050:47:09

The slavers' counsel countered by saying

0:47:110:47:14

that as contracts for the sale of slaves

0:47:140:47:16

were recognised in English law,

0:47:160:47:18

that must validate slavery in England.

0:47:180:47:22

The court adjourned for Lord Mansfield to prepare his judgement.

0:47:220:47:27

Mansfield brooded over the case.

0:47:270:47:30

What did the law say?

0:47:300:47:32

What did his heart say?

0:47:320:47:35

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

0:47:350:47:39

Granville Sharp, the great abolitionist,

0:47:390:47:43

was anxiously awaiting the ruling.

0:47:430:47:45

But, having clashed with Mansfield in the past,

0:47:460:47:49

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

0:47:490:47:53

So he didn't hear the judgement delivered,

0:47:530:47:57

staying instead at his home.

0:47:570:47:59

The result was sprinted through the streets to him.

0:48:010:48:04

In this street,

0:48:090:48:11

somewhere near that spot,

0:48:110:48:13

Granville Sharp answered his door.

0:48:130:48:16

There in front of him, smiling, exultant,

0:48:160:48:20

stood James Somerset - a free man.

0:48:200:48:23

In his judgement, Lord Mansfield said,

0:48:260:48:29

"That the state of slavery is of such a nature so odious

0:48:290:48:34

"that the English Common Law could never accept it."

0:48:340:48:37

Now, whether he meant by this to ignite a spark

0:48:370:48:41

that would end slavery is unclear,

0:48:410:48:44

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

0:48:440:48:50

One single writ of habeas corpus

0:48:500:48:53

had released not just one man from bondage

0:48:530:48:57

but was to mark the start of freedom

0:48:570:49:00

for all the 15,000 slaves then in England.

0:49:000:49:04

At the start of the 18th century,

0:49:170:49:18

our liberties and freedoms had been established.

0:49:180:49:21

The courts, by comparison, were still in the Dark Ages.

0:49:210:49:25

Land yourself in the dock

0:49:250:49:27

and you found yourself in a medieval nightmare.

0:49:270:49:30

With no police force

0:49:310:49:33

and no forensic science service,

0:49:330:49:35

the only means of deterring crimes was through exemplary punishment -

0:49:350:49:39

whipping, transportation and hanging.

0:49:390:49:44

And an already severe system was about to get even bloodier.

0:49:440:49:48

This is Waltham in Hampshire.

0:49:510:49:53

In 1723 it was a place of terror.

0:49:530:49:57

A gang rampaged through these forests

0:49:580:50:01

poaching, robbing and murdering,

0:50:010:50:04

their faces blacked up in disguise.

0:50:040:50:07

It was feared these Waltham Blacks, as they were known,

0:50:080:50:12

would spread their violence across England.

0:50:120:50:14

As a knee-jerk reaction the Waltham Black Act was rushed into law.

0:50:180:50:22

Suddenly, all manner of offences were punishable by death.

0:50:220:50:27

Just being caught in a park with a blacked-up face

0:50:290:50:31

could get you hanged,

0:50:310:50:33

along with damaging trees and wrecking fishponds.

0:50:330:50:36

It was the harshest legislation the country had ever seen.

0:50:360:50:42

Thus began a terrible trend

0:50:420:50:44

that meant that by the end of the century,

0:50:440:50:47

more than 200 offences were punishable by death.

0:50:470:50:51

Deterrence was all.

0:50:510:50:52

As Judge Buller told a felon he was sentencing,

0:50:520:50:56

"You are to be hanged not for stealing horses

0:50:560:51:00

"but that horses may not be stolen."

0:51:000:51:03

This system was appropriately named The Bloody Code.

0:51:030:51:08

In this era, people felt the innocent

0:51:130:51:16

should be able to argue their own cases.

0:51:160:51:19

Many an accused, when compelled to defend themselves

0:51:190:51:24

in this alien environment with its unfamiliar procedures

0:51:240:51:28

and terminology, would have been terrified into incoherence

0:51:280:51:33

when their lives were hanging in the balance.

0:51:330:51:38

If the defendant needed assistance, the judge was expected to offer it.

0:51:380:51:44

With a judge your only defender

0:51:440:51:47

and The Bloody Code sanctioning hanging for over 200 crimes,

0:51:470:51:51

you might have expected the hangman to be the busiest tradesman in town.

0:51:510:51:55

Thankfully, something came between you and the noose - the jury.

0:51:570:52:02

Juries were considerably less punitive 200 years ago

0:52:030:52:07

than perhaps you might think.

0:52:070:52:09

When faced with The Bloody Code,

0:52:090:52:11

which imposed the death penalty for innumerable petty offences,

0:52:110:52:16

juries were inclined to go against their oath

0:52:160:52:19

of bringing in a true verdict,

0:52:190:52:22

and either to find people not guilty

0:52:220:52:25

or more often to reduce the amount of property stolen

0:52:250:52:30

so that it was no longer a capital offence.

0:52:300:52:33

This was known as pious perjury and let me give you an example.

0:52:330:52:38

Here's just one case from the Old Bailey records

0:52:390:52:42

and it relates to a Mary Behn of the Parish of St Andrew Holborn.

0:52:420:52:47

Now, she was indicted for the theft of clothing

0:52:470:52:51

worth over 50 shillings.

0:52:510:52:53

That was a capital offence.

0:52:530:52:55

"She made a frivolous defence upon which the jury found her guilty

0:52:550:53:02

"to the value of 4 shillings and 10 pence."

0:53:020:53:06

Thus rendering her no longer liable to execution

0:53:060:53:10

and so she was merely branded.

0:53:100:53:13

During the 18th century, the whole system of law and punishment

0:53:200:53:24

that had become to be known as The Bloody Code wasn't working.

0:53:240:53:28

It was savage and disordered and needed a major overhaul.

0:53:280:53:34

And only the Government could do this.

0:53:340:53:37

There was a politician with the courage,

0:53:370:53:39

the obsessive eye for detail

0:53:390:53:41

and the power of personality

0:53:410:53:43

to take on this project - Robert Peel.

0:53:430:53:48

When Robert Peel became Home Secretary,

0:53:480:53:50

there were over 100 statutes dealing with forgery alone.

0:53:500:53:54

He ruthlessly attacked this legislative mess.

0:53:540:53:57

Out of this bonfire of legislation,

0:54:030:54:07

Peel pulled a piece of legislative magic.

0:54:070:54:11

120 statutes were transformed into one, just six pages long.

0:54:110:54:18

With consummate skill,

0:54:180:54:20

Robert Peel did more to reform the criminal justice system

0:54:200:54:24

than almost any other Home Secretary.

0:54:240:54:28

Over the course of eight years,

0:54:290:54:31

Peel consolidated three-quarters of all offences into a few key Acts.

0:54:310:54:36

The Waltham Black Act, with its dozens of hanging crimes,

0:54:360:54:40

all but disappeared.

0:54:400:54:42

The death penalty was severely restricted.

0:54:420:54:44

Peel had reformed the law,

0:54:480:54:51

now he searched for the means to enforce it.

0:54:510:54:54

The Bloody Code's unjust punishments had failed to reduce crime.

0:54:540:54:58

Could there be a better deterrent?

0:54:580:55:01

In August 2011 rioting swept England

0:55:060:55:10

and for a time the mob ruled.

0:55:100:55:13

Eventually, the police controlled the situation

0:55:130:55:16

but imagine the destruction if, as in Robert Peel's day,

0:55:160:55:20

the police didn't exist.

0:55:200:55:23

Instead of deploying police and employing water cannon,

0:55:230:55:27

Governments relied on The Riot Act.

0:55:270:55:31

The Act held that where 12 or more people

0:55:320:55:35

gathered together in riotous assembly

0:55:350:55:38

and rejected the reading of The Riot Act

0:55:380:55:41

and failed to disperse within an hour,

0:55:410:55:44

then force could be used against them.

0:55:440:55:47

Those remaining on the scene

0:55:470:55:48

would be subject to the most severe penalty of all - death.

0:55:480:55:52

Riots were frequent, and to restore order,

0:55:560:55:59

the only option was to send in the Army.

0:55:590:56:02

Robert Peel's new idea was to create a police force.

0:56:050:56:10

Uncontroversial to us but at the time

0:56:100:56:14

a radical and suspect concept.

0:56:140:56:18

I think he was quite clearly looking for the right answer.

0:56:180:56:21

'I asked former Home Secretary Douglas Hurd

0:56:210:56:24

'about the reaction to Peel's innovation.'

0:56:240:56:26

Why where people opposed to the creation of a police force?

0:56:260:56:31

Because one of the themes which runs through English history

0:56:310:56:35

in the 18th and 19th century is the fear...

0:56:350:56:38

is the fear of a standing army.

0:56:380:56:41

A standing army was thought of as something that the Stuarts...

0:56:410:56:46

rather believed in, cos it was a sort of re-enforcement of royal power.

0:56:460:56:52

And people thought...

0:56:520:56:53

and this was very strong when Peel first produced

0:56:530:56:56

the plan for a Metropolitan Police,

0:56:560:56:58

that this was just the Government

0:56:580:57:00

trying to grab hold of the lives of the people.

0:57:000:57:04

Peel had long sought to replace the existing

0:57:060:57:09

and ineffective system of night-watchmen

0:57:090:57:12

and parish constables,

0:57:120:57:14

but he faced an uphill struggle

0:57:140:57:17

in the face of the argument

0:57:170:57:19

that a professional police force would be a danger to liberty.

0:57:190:57:23

Could Robert Peel convince the population

0:57:230:57:27

that having a police force did not mean England

0:57:270:57:30

would become a police state?

0:57:300:57:32

In 1829 he did this by persuading the public

0:57:330:57:37

that the police would not just control people,

0:57:370:57:41

they would primarily control crime.

0:57:410:57:43

"I want to teach people," wrote Peel,

0:57:440:57:47

"that liberty does not consist in having your house robbed

0:57:470:57:51

"by organised gangs of thieves,

0:57:510:57:54

"or leaving the principal streets of London

0:57:540:57:56

"in the nightly possession of drunken women or vagabonds."

0:57:560:58:01

Crucially, for English Criminal Law,

0:58:030:58:05

the creation of a professional force

0:58:050:58:08

meant that the police, rather than harsh penalties,

0:58:080:58:11

became the main deterrent of crime.

0:58:110:58:13

The long arm of the law would prove far more effective than the noose.

0:58:150:58:21

Subtitles by Red Bee Media Ltd

0:58:490:58:51

A series of 12 films in which barrister Harry Potter looks at the history of English justice, from the early concept of compensation, through the development of the jury to the founding of the police.


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