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

"This is a jolly good read and informative about how trials fit together in history. There’s also a good bit about how the English trial by jury came about. At the Fourth Lateran Council in 1215 Pope Innocent III decided you couldn’t ask God to decide on earthly affairs and so the old trial by ordeal was no longer acceptable. They used to put a red hot poker in your hand and then bind it up and if it healed nicely then you were in the clear but if it festered then you were guilty. Of course, if the evidence was weak they might cool the poker off a bit first. But now the authorities had a problem. How would they continue… Exactly. So they came up with La Preuve Légale, which was judicially sanctioned torture. The law was that you couldn’t convict unless you had two eye witnesses or a confession. Obviously, the likelihood of two eye witnesses coming forward was slim, so… But that was just continental Europe. We didn’t do that because it seemed unfair, so we used something that had already been around for hundreds of years. The jury. Until then they had just vouched for things by oath, partly deciding whether there was a case to answer. So, until 1933 you had the Grand Jury which decided if there was a case to answer and the Petty Jury which would decide on guilt or innocence. The first trial by jury was in 1219. But there was no concept of innocent until proven guilty until William Garrow’s ‘presumption of innocence’ in the late 18th century. Trials in those days were blisteringly quick and the prosecutor was usually the victim, unless it was a murder case, of course. So you’d be hauled in front of your accuser, face to face —there were no lawyers— and you’d say: ‘No! No! It wasn’t me!’ Judges were doing 20 trials a day. Well, this is all in my book, but by the 17th century execution days were hugely popular. They’d wait until they’d rounded up enough people and then there would be a bank holiday. The condemned were kept in Newgate and at 7am they’d be taken up to Tyburn (Marble Arch) and the crowds would line the route. The condemned would sit astride their coffins, even children. Oh yes. And everyone would dress up. A shroud if they were guilty, a feather if they were innocent. The women wore silk and handed out oranges. They stopped at all the pubs and people gave them parting cups. Slaughtered, yes. And to watch the execution you could buy Mother Proctor’s pews, priced according to the fame of the person being put to death. Earl Ferrers went to execution in his own carriage in the 1760s and wore his wedding suit, saying that his wedding day and his execution day were the unhappiest of his life. People fought for the best position and when the person was dangling twitching on the rope, his or her family would rush forward and tug at them to quicken their journey to the next world. What the mob really hated was a reprieve. One of the most important things in Kadri’s book is the Bushel case, which is of seminal importance to British legal history. Bushel was the foreman of the jury in the common law trial of William Penn (who went on to found Pennsylvania) and his associate, accused of speaking ‘to a tumultuous assembly’ which was illegal. In 1670 Penn, a Quaker, preached in the street at Grace Church and the prosecutors —Simon Starling, Lord Mayor of London, and Thomas Howell, the Recorder of London— wanted a guilty verdict. The jury couldn’t reach a unanimous verdict and Howell sent them to Newgate for the night with no food or water (which they weren’t allowed until a verdict was reached). “The Bushel case is of seminal importance to British legal history.” Eventually, both men were found not guilty and the judge fined the jurors for bringing in a verdict contrary to his wishes and threatened them with Newgate if they didn’t pay. Bushel refused to pay and spent ten weeks in Newgate. Eventually Vaughan, the Chief Justice of England and Wales, drew a distinction between witnesses, who give evidence, and jurors who believe something to be true or not – this is a fundamental cornerstone of English law. Bushel was released."