LITMIR.BIZ

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riddles by subjecting defendants to the rack and strappado, English law would require anyone suspected of particularly mysterious crimes to undergo trial by combat for at least another century.

      To the limited extent that the new system did represent a move away from earlier superstitions, it seems to have inspired feelings ranging from trepidation to terror. At one of the first sets of trials, held in Gloucester in June 1221, almost half of the twenty-seven indicted defendants refused to enter a plea. Matilda, accused of murder, declined because she felt that too many people hated her. John explained that he had done far too much evil to want to put his fate in his neighbours’ hands. William, suspected of sheep stealing, backed out after seeing a jury send the defendants immediately ahead of him to the gallows. All the concerns sound eminently sensible, but rationality was certainly not the only force at work. For the judges were almost as unsure about their innovation as the defendants. They did not insist that anyone submit to it, and Matilda, John, and William – along with all the other holdouts – escaped execution. Two of the trio were immediately released.

      The judges would soon overcome their compunctions, and by the time they reached Warwick, three months after the Gloucester debacle, they were putting their collective foot down. A murderer and a thief who refused to plead to a jury were unceremoniously hanged, and judges were soon requiring that defendants state – on their knees with right hand raised – that they consented to jury trial ‘for good or ill’. If they refused to do so they would be spread-eagled under stones or lead and given only bread and water until they submitted or died. The suspicions attaching to the novel system were nevertheless such that resistance was widespread for decades, and sporadic for far longer. As late as the mid eighteenth century there would be people who would refuse trial by jury, and England’s authorities retained the right to extract pleas using thumbscrews and millstones until 1772.

      Not much is known about the trials that ensued over the next two centuries, but they were certainly very different from their modern counterparts. Although the law’s concern for the fate of defendants’ souls meant that an accused was denied the opportunity to give sworn testimony, few asserted a right to silence – for in the absence of any right to a lawyer, suspects who knew what was good for them argued for their lives. Their opponent was the accuser: prosecuting lawyers appeared only in major cases before the seventeenth century, and independent testimony was all but unheard of until the early 1500s. An English lawyer writing in the 1470s, Sir John Fortescue, found the very notion of witnesses downright sinister. In a lengthy explanation of how English trials were the best in the world, he explained that continental inquisitors not only used unpleasantly belly-bursting, tendon-snapping techniques of torture, but brought people to court to say what they knew. They could, he pointed out, be bribed to say anything. Far more sensible, he argued, to have a system under which no one was liable to conviction except on the sworn evidence of twelve unbiased men.

      A gulf had begun to yawn between Europe’s two systems; and notwithstanding Fortescue’s pride, there is little doubt that the courts of the continent had the stronger credentials. Structured around Roman law and inspired by the belief that justice was a matter of clever men applying their minds to a case, they had both tradition and reason on their side. Those of England, on the other hand, rested on a hotchpotch of superstition. Reliance on the ability of unlettered jurors to administer justice was, quite literally, a relic of barbarism.

      And yet, for all its irrationality, England was already producing a method of trial considerably more benign. The notion that some matters were simply unknowable was helping to restrain the temptation to torture: against the bloody record of continental Europe, kings and royal officials would issue no more than eighty-one torture warrants over the entire course of England’s history. English judges were also in a better position – at least potentially – to appreciate human frailty. Denied the right to seek the truth through force and required to sit alongside ordinary jurors, they could say, as Chief Justice Brian did in the late 1400s, that, ‘The thought of man shall not be tried, for the devil himself knoweth not the thought of man.’ And whereas continental justice was becoming a secret process, controlled by adepts who kept a lid on its mysteries until the moment of judgment, English trials were already virtually defined by their openness. The need to assemble jurors made it impossible to exclude the public, and although sheriffs and jailers would extort admission fees until the 1700s, large crowds invariably entered in their wake.

      The characteristics of English courtrooms were, like all customs, as accidental as they were determined. They would, however, collectively define a notion of justice that would be of lasting significance – in England first, and then far beyond. And the most important accident of all was publicity, which would now turn the trial from an oath-taking ritual into a dynamic contest of fundamental political and social significance.

      The background to the transformation was the crisis that tore England apart in the aftermath of Henry VIII’s break from the Roman Church in the 1530s. Henry, anxious to secure spiritual approval for sexual relations with Anne Boleyn, spent the late 1520s unsuccessfully lobbying the pope for a divorce, eventually growing so irritable that in 1534 he established his own national Church. It was enough, very temporarily, to resolve his marital difficulties, but it also marked the beginning of a very troubled era in English history. Over the next decade, Henry beheaded and divorced his way through another three marriages, decimating English Catholicism in the process. As traditional bonds of religious and national fidelity snapped, his government sidelined regular legal procedures in favour of the rudiments of a police state. Tribunals such as the Privy Council and Star Chamber assumed the power to punish without trial, and the torture chamber of the Tower of London was replenished and used to a greater extent than ever before. Henry simultaneously redefined treason to force his subjects to recognize his new authority or make their opposition apparent. The crime had never been the most tightly defined of offences – capable of penalizing acts ranging from fornication with the royal consort to forgery of a sixpence – but remaining outside its parameters now became an almost acrobatic act. The laws that attempted to keep up with Henry’s marital shenanigans are a case in point. The 1534 Act of Succession suddenly rendered it treacherous to deny the legitimacy of Elizabeth, his daughter by Anne Boleyn, or to assert that of his firstborn Mary. Two years later, another statute granted free pardon to anyone who had asserted the whoredom of Anne or the bastardy of her child. In 1543, with Henry planning an invasion of France, fears of familial oblivion generated a final burst of paternal pride, and he pronounced that anyone who refused to confirm the birthright of either daughter would be hanged, drawn, and quartered.

      The oscillations only intensified after Henry’s death in 1547. Edward VI had barely hit puberty when he himself died, aged 15, in 1553, and Mary Tudor then threw the ship of state into reverse by restoring English Catholicism and burning some three hundred Protestants to prove it. Her half-sister, Elizabeth, gave the wheel another turn in 1558. Although conciliatory by temperament, she restored Protestantism as the national religion and soon found herself caught between a regrouping papacy, ambitious monarchs in Spain and France, and a realm on the verge of civil war. In pursuit of peace she flirted politically and socially with almost every eligible Catholic on the continent, but her legitimacy, in every sense, depended on the men of Rome – and they were not to be charmed. Pius V excommunicated her in 1570. Ten years later, Gregory XIII’s Secretary of State let it be known that an assassin could expect not just forgiveness from God, but positive gratitude.

      In reaction to the papal fatwas, Elizabeth’s government mounted an increasingly ferocious assault on the Catholic enemy within. The authoritarian machinery that had taken shape under her father swung into action against religious insurgents real and imagined, while an equally threatening surge of ordinary crime inspired the construction in 1571 of a triple-beamed gallows that would soon become a byword for legal cruelty in England – Tyburn. By the 1590s a visiting Duke of Wirtemberg was able to count more than thirty grinning heads as he strolled across the towers and twenty arches of old London Bridge. Punishments did not just increase in number. Since the reign of Henry VIII, their variety had also been propagating,^* and they now flowered into a pattern of dizzying complexity. Minor criminals might be dunked or made to wear a placard carrying the name of their crime. Felons often had the initials of their offence inscribed in their flesh, while those who devalued the royal

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