The Trial: A History from Socrates to O. J. Simpson

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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