‘With all the impressiveness and substantial value of truth’: Notable trials and criminal justice, 1750–1930

Law and Humanities

Volumn 1, Issue 1, 2007, Pages 57-78

  Farmer, Lindsay ^a  

^a UNIVERSITY OF GLASGOW   (United Kingdom)

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EID: 84928862807     PISSN: 17521483     EISSN: 17521491     Source Type: Journal    
DOI: 10.1080/17521483.2007.11423726     Document Type: Article

References (117)

1. GL Craik, English Causes Célèbres; or, Reports of Remarkable Trials, Vol 1 (Charles Knight & Co, London 1840) 5.
2. W Roughead, ‘The Ardlamont Mystery’ in Classic Crimes (NYRB, New York 2000) 381.
3. W Roughead. He goes on to claim that 1,860,000 million words were telegraphed from Edinburgh in connection with the 10-day case.
4. C Kingston, Dramatic Days at the Old Bailey (Stanley Paul & Co, London 1928) 1.
5. Sir T Humphreys, A Book of Trials (William Heinemann, London 1953) 53.
6. See VAC Gatrell, The Hanging Tree Execution and the English People 1770–1868 (Oxford University Press, 1995) 56–61 for numbers.
7. W Roughead, The Trial of Dr Pritchard (William Hodge, Edinburgh 1906) 45 and Appendix XVI.
8. See Gatrell (n 6); D Hay, ‘Property, Authority and the Criminal Law’ in D Hay et al, Albion’s Fatal Tree. Crime and Society in Eighteenth Century England (Allen Lane, Harmondsworth 1975).
9. J Grossman, The Art of Alibi: English Law Courts and the Novel (Johns Hopkins University Press, Baltimore MD 2002).
10. G Robb and N Erber, Disorder in the Court Trials and Sexual Conflict at the Turn of the Century (Macmillan, Basingstoke 1999) Introduction. See also CL Broad, Barristers of the Golden Age. Their Lives and Cases (John Long, London 1958). This should not be understood as arguing that there was no interest in trials before 1830, or that this was the only form of representation of criminal justice. See below.
11. In the Theater of Criminal Justice The Palais de Justice in Second Empire Paris (Princeton University Press, Princeton NJ 1993).
12. In the Theater of Criminal Justice The Palais de Justice in Second Empire Paris (Princeton University Press, Princeton NJ 1993), 21.
13. For a fuller discussion of these shifts see L Farmer, ‘Responsibility and the Proof of Guilt’ in M Dubber and L Farmer (eds), Modern Histories of Crime and Punishment (Stanford University Press, Palo Alto CA 2007).
14. See C Graham, Ordering Law. The Architectural and Social History of the English Courtroom to 1914 (Ashgate, Aldershot 2003) chs 3, 4.
15. See RA Duff, L Farmer, SE Marshall and V Tadros, The Trial on Trial, Vol 3. Towards a Normative Theory of the Criminal Trial (Hart Publishing, Oxford 2007 (forthcoming)) ch 9 for a historical survey of the principle of publicity.
16. See the description of Winchester assize courts on pp 279–84.
17. The thesis associated with the work of John Langbein on the transformation of the 18th-century trial: The Origins of the Adversarial Trial (Oxford University Press, 2003).
18. These developments have been traced in the changing narrative forms of 19th-century literature; see eg F Moretti, Signs Taken for Wonders. On the Sociology of Literary Forms (Verso, London 1983) ch 5 on detective fiction; Grossman (n 9) on the Victorian novel;
19. L Rodensky, The Crime in Mind. Criminal Responsibility and the Victorian Novel (Oxford University Press, 2003).
20. See L Faller, Turned to Account. The Forms and Functions of Criminal Biography in Late 17th and Early 18th Century England (Cambridge University Press, 1987);
21. H Gladfelder, Criminality and Narrative in Eighteenth- Century England. Beyond the Law (Johns Hopkins University Press, Baltimore CA 2001);
22. P Linebaugh, ‘The Ordinary of Newgate and his Account’ in JS Cockburn, Crime in England 1550–1800 (Princeton University Press, Princeton NJ 1977).
23. See M Harris, ‘Trials and Criminal Biographies: A Case Study in Distribution’ in R Myers and M Harris (eds), Sale and Distribution of Books from 1700 (Oxford Polytechnic Books, Oxford 1982); see now www.oldbaileyonline.org where the session papers from 1674 to 1834 have been made available.
24. Some 730 of these separate publications (including some of the Old Bailey sessions where there was more than one trial) have been collected and indexed and are available on microfiche. See British Trials 1660–1900 (Chadwyck-Healey, London 1991).
25. Harris (n 19) suggests that while crime reporting was carried out by newspapers from the early 18th century, the reporting of trials remained the province of the book trade until much later.
26. See Langbein (n 16); ‘The Criminal Trial before the Lawyers’ (1978) 45 University of Chicago Law Review 263–316; ‘Shaping the Eighteenth Century Criminal Trial: A View from the Ryder Sources’ (1983) 50 University of Chicago Law Review 1–136;
27. JM Beattie, ‘Scales of Justice: Defense Counsel and the English Criminal Trial in the Eighteenth and Nineteenth Centuries’ (1991) 9 Law & History Review 221–67;
28. AN May, The Bar and the Old Bailey 1750–1850 (University of North Carolina Press, Chapel Hill NC 2003). On their uses for the historian
29. see MA Crowther, ‘Criminal Precognitions and their Value for the Historian’ (1995) 1 Scottish Archives 75–84;
30. M Gaskill, ‘Reporting Murder: Fiction in the Archives in Early Modern England’ (1998) 23 Social History 1–30.
31. A more complete study would have to include the reporting of trials in newspapers, which became increasingly significant over the course of the 19th century, and their representation in fictional forms such as novels or plays.
32. Harris (n 19).
33. This practice has been explored in relation to the trial of the Earl of Castlehaven in C Herrup, A House in Gross Disorder Sex, Law and the 2nd Earl of Castlehaven (Oxford University Press, 1999).
34. These broad periods might themselves be broken down to show how particular publications were responding to more immediate concerns. See eg S Devereaux, ‘The City and the Sessions Paper: “Public Justice” in London 1770–1800’ (1996) 35 Journal of British Studies 466–503, pointing to the different contexts that shaped the Old Bailey Sessions Papers in the last three decades of the 18th century.
35. On this see DJA Cairns, Advocacy and the Making of the Adversarial Criminal Trial 1800–1865 (Oxford University Press, 1998); Beattie (n 22); May (n 22).
36. The independence of the Scottish legal system was preserved by the Treaty of Union 1707. While there are broad similarities in the development in each jurisdiction, there are also some important differences to which I shall draw attention.
37. In Scotland one of the earliest compilers of the series of Justiciary Cases also published reports of separate trials. A Swinton, Report of the trial of Thomas Hunter, Peter Hacket, Richard McNeil, James Gibb, and William McLean, operative cotton-spinners in Glasgow: before the High court of justiciary, at Edinburgh, on Wednesday, January 3, 1838, and seven following days, for the crimes of illegal conspiracy and murder (T Clark, Edinburgh 1838); Report of the trial of Alexander Humphreys or Alexander: claiming the title of Earl of Stirling, before the High Court of Justiciary at Edinburgh, for the crime of forgery (T Clark, Edinburgh 1839).
38. For information on the various editors and editions see D Thomas (ed), State Trials, Vol 3 (Routledge & Kegan Paul, London 1972) Introduction; see also A Patterson, Early Modern Liberalism (Cambridge University Press, 1997) chs 3, 4.
39. Under various editors (William Cobbett, Thomas B Howell and his son Thomas J Howell). A second series, edited by J MacDonnell, covered the period 1820–58. See n 48 below for discussion of later editions.
40. WH Medland and C Weobly, A Collection of Remarkable and Interesting Criminal Trials, Actions at Law etc to which is prefixed an essay on reprieve and pardon and biographical sketches of John, Lord Eldon and Mr Mingay (2 vols) (John Pearmain, London 1808). There is no editorial comment aside from the introductory essays, and no indication of the principles of selection.
41. J McLaurin, Arguments and Decisions in Remarkable Cases, Before the High Court of Justiciary, and other Supreme Courts, in Scotland (J Bell, Edinburgh 1774) 2. Later Lord Dreghorn. Cases began in 1670. Excluding cases of treason, and those that were readily available in other printed versions. Prefaced by 50-page introduction to criminal procedure.
42. R Pitcairn, Criminal Trials in Scotland from AD1488 to AD1624, embracing the entire reigns of James IV and V, Mary Queen of Scots and James VI, compiled from the original records, with historical notes and illustrations &c (3 vols) (Maitland Club, Edinburgh 1833).
43. Celebrated Trials and Remarkable Cases of Criminal Jurisprudence from the Earliest Records to the Year 1825 (6 vols) (Knight & Lacey, London 1825). Earliest case 1413. Drawing on English, Scottish and French sources. It was in fact edited by the young George Borrow, author of Lavengro, though the introduction was written by his patron, Sir Richard Phillips, who also commissioned the work. Borrow was paid the sum of £50 for his work. See EH Bierstadt, Celebrated Trials etc (rev edn) (Payson & Clarke, New York 1928) Introduction.
44. Celebrated Trials and Remarkable Cases of Criminal Jurisprudence from the Earliest Records to the Year 1825 (6 vols) (Knight & Lacey, London 1825). Earliest case 1413. Drawing on English, Scottish and French sources. It was in fact edited by the young George Borrow, author of Lavengro, though the introduction was written by his patron, Sir Richard Phillips, who also commissioned the work. Borrow was paid the sum of £50 for his work. See EH Bierstadt, Celebrated Trials etc (rev edn) (Payson & Clarke, New York 1928) Introduction, 3.
45. Celebrated Trials and Remarkable Cases of Criminal Jurisprudence from the Earliest Records to the Year 1825 (6 vols) (Knight & Lacey, London 1825). Earliest case 1413. Drawing on English, Scottish and French sources. It was in fact edited by the young George Borrow, author of Lavengro, though the introduction was written by his patron, Sir Richard Phillips, who also commissioned the work. Borrow was paid the sum of £50 for his work. See EH Bierstadt, Celebrated Trials etc (rev edn) (Payson & Clarke, New York 1928) Introduction.
46. Celebrated Trials and Remarkable Cases of Criminal Jurisprudence from the Earliest Records to the Year 1825 (6 vols) (Knight & Lacey, London 1825). Earliest case 1413. Drawing on English, Scottish and French sources. It was in fact edited by the young George Borrow, author of Lavengro, though the introduction was written by his patron, Sir Richard Phillips, who also commissioned the work. Borrow was paid the sum of £50 for his work. See EH Bierstadt, Celebrated Trials etc (rev edn) (Payson & Clarke, New York 1928) Introduction. The relative value of the two collections was later described as ‘like sterling bullion as contrasted with gold leaf ’, 6.
47. Celebrated Trials and Remarkable Cases of Criminal Jurisprudence from the Earliest Records to the Year 1825 (6 vols) (Knight & Lacey, London 1825). Earliest case 1413. Drawing on English, Scottish and French sources. It was in fact edited by the young George Borrow, author of Lavengro, though the introduction was written by his patron, Sir Richard Phillips, who also commissioned the work. Borrow was paid the sum of £50 for his work. See EH Bierstadt, Celebrated Trials etc (rev edn) (Payson & Clarke, New York 1928) Introduction, 7.
48. The preface concludes with the insertion of ‘Phillip’s Golden Rules for Jurors’. These are drawn from R Phillips, The Powers and Duties of Juries (Sherwood, Neely & Jones, London 1811), which was translated into French (1819) and Spanish (1821).
49. H Arnot, A Collection and Abridgement of Celebrated Criminal Trials in Scotland from AD 1536 to 1784 (William Smellie, Edinburgh 1785). Arnot was also a noted historian of Edinburgh. An indication of the readership can be obtained from the list of subscribers published with the volume.
50. H Arnot, 371; emphasis in original.
51. H Arnot, 15.
52. H Arnot, 371. He thus concluded: ‘Let Science be revered as an antidote to Superstition, as a friend to Civil Liberty, and as the true Philosopher’s Stone, which in an arbitrary Government transmutes the iron rod of a Tyrant into the golden sceptre of a King, the Father of his People’.
53. This is also the principal theme of a collection edited by David Jardine, Criminal Trials (2 vols) (C Knight, London 1832–5). This was published under the superintendence of the Society for the Diffusion of Useful Knowledge.
54. TA Green, Verdict According to Conscience Perspectives on the English Criminal Trial Jury 1200–1800 (University of Chicago Press, Chicago IL 1985);
55. JS Cockburn and TA Green, Twelve Good Men and True. The Criminal Trial Jury in England 1200–1800 (Princeton University Press, Princeton NJ 1988).
56. He was later succeeded by John EP Wallis.
57. JW Willis-Bund, A Selection of Cases from the State Trials (3 vols) (Cambridge University Press, 1879–82);
58. G Lathom Browne, Narratives of State Trials in the Nineteenth Century. First Period 1801–1830 (2 vols) (Sampson Low, Marston, Searle and Rivington, London 1882). A Scottish equivalent would be H Cockburn, An Examination of the Trials for Sedition which have hitherto occurred in Scotland (D Douglas, Edinburgh 1888).
59. HL Stephen, State Trials: Political and Social (4 vols) (Duckworth, London 1899–1902); see also Craik (n 1) which draws heavily on State Trials though not including any ‘political’ trials.
60. HL Stephen, Vol 1, 8.
61. HL Stephen, Introduction to Vol 1 First series.
62. HL Stephen, Vol 3, Preface.
63. WC Townsend, Modern State Trials. Revised and Illustrated with essays and notes (2 vols) (Longman & Co, London 1850); cf JB Atlay, Famous Trials of the Century (Grant Richards, London 1899) Preface.
64. WC Townsend, viii and introduction generally. In places this meant a departure from the order of the court record so as to present relevant bits of evidence and debate together. This format is cited approvingly by Lathom Browne (n 48) and WO Woodall, A Collection of Reports of Celebrated Trials, Civil and Criminal (2 vols) (Shaw and Sons, London 1873) Preface.
65. This is probably also reflected in an increasing willingness to publish under the title Causes Célèbres—which was previously considered too frivolous; see eg Craik (n 1). Generally see J Black, The Aesthetics of Murder. A Study in Romantic Literature and Contemporary Culture (Johns Hopkins University Press, Baltimore MD 1991); M Wiener, Reconstructing the Criminal. Culture, Law, and Policy in England 1830–1914 (Cambridge University Press, 1990).
66. See M Wiener, ‘Judges v Jurors: Courtroom Tensions in Murder Trials and the Law of Criminal Responsibility in Nineteenth-Century England’ (1999) 17 Law & History Review 467–506.
67. See Woodall (n 54) Preface, which refers to the ephemerality and inaccessibility of many pamphlet and press reports.
68. Hurst & Blackett, London 1852. Drawing on a range of foreign as well as English cases. A comparable collection from later in this period is J Forster, Studies in Red and Black (Ward & Downey, London 1896).
69. 2 vols, Chapman and Hall, London 1852. Burton had also published works on Scots law and on Jeremy Bentham
70. vols, Chapman and Hall, London 1852. Burton had also published works on Scots law and on Jeremy Bentham, 3.
71. vols, Chapman and Hall, London 1852. Burton had also published works on Scots law and on Jeremy Bentham.
72. Burke (n 58) 5.
73. He was also the compiler of two earlier volumes of trials concerned with private lives of the aristocracy and upper classes: Celebrated Trials connected with the Aristocracy (and the Upper Classes of Society) in the Relations of Private Life (Benning & Co, London 1849 and 1851).
74. See W Collins, The Moonstone (Penguin, Harmondsworth 1998) Introduction by S Kemp; DA Miller, The Novel and the Police (University of California Press, Berkeley CA 1988).
75. Burke (n 58) vi; cf also Craik (n 1) v: ‘For, while fiction is confined to the probable, truth has the whole universe of the possible for its realm.’
76. See Wiener (n 56) 472–6.
77. See JD Havard, The Detection of Secret Homicide (Macmillan, Basingstoke 1960) chs 1–4; I Burney, Bodies of Evidence. Medicine and the Politics of the English Inquest, 1830–1926 (Johns Hopkins University Press, Baltimore MD 2000). On the rise of expert testimony generally
78. see S Landsman, ‘One Hundred Years of Rectitude: Medical Witnesses at the Old Bailey, 1717–1817’ (1998) 16 Law & History Review 445–94;
79. C Jones, Expert Witnesses Science, Medicine and the Practice of Law (Clarendon Press, Oxford 1994).
80. Something that was obviously absent from reports of trials of felonies before 1836. Cairns (n 27) ch 6 discusses the impact of the reform on styles of advocacy, arguing that a restrictive implementation of the 1836 Act encouraged aggressive advocacy and limited defence to the destruction of the prosecution case.
81. JF Stephen, The Indian Evidence Act (I of 1872), with an Introduction to the Principles of Judicial Evidence (Macmillan, Calcutta and London 1872) 56, quoted in A Welsh, Strong Representations. Narrative and Circumstantial Evidence in England (Johns Hopkins University Press, Baltimore MD 1992) 162.
82. Burton (n 59) Vol II, 79. See also W Scott, Trial of Duncan Terig, alias Clerk, and Alexander Bane Macdonald for the Murder of Arthur Davis, Sergeant in General Guise’s regiment of Foot, June MDCCLIV (Bannatyne Club, Edinburgh 1831). See also M Gaskill, Crime and Mentalities in Early Modern England (Cambridge University Press, 2000) chs 6–8.
83. Burton (n 59) Vol 2, 81.
84. Though not in the form of the inquisitorial confession, but through the reconstruction of circumstance: cf Burke (n 58), and the comparisons of English and continental procedures in the case of von Forster and Hussey (1818); also Woodall (n 54) on the case of Frere Leotarde (1848); cf also translator’s introduction to AR von Feuerbach, Narratives of Remarkable Criminal Trials (1825) (Lady Duff Gordon (tr)) (John Murray, London 1846).
85. Craik (n 1) v.
86. S D’Cruze, ‘“The damned place was haunted”: The Gothic, Middlebrow Culture and Inter-War. Notable Trials’ (2006) 15(1) Literature and History (Third Series) 39.
87. Edited by the son and grandson of William Hodge. They often recycled cases, with the introductions to the trials of Madeleine Smith, Oscar Slater and Dr Crippen appearing in both Vols 1 and 10.
88. Notable British Trials and War Crimes Trials (Publishers Catalogue, London 1954).
89. See also J Goodman, ‘Trial Series: Some Notable, Some Not’ [1973] Medicine, Science and the Law 49–52.
90. See eg The Trial of Thurtell and Hunt (ER Watson (ed)) (William Hodge, Edinburgh 1920). This literature, and the afterlife of the case, is reviewed in J Yovel, ‘Invisible Precedents: On the Many Lives of Legal Stories through Law and Popular Culture’ (2001) 50 Emory Law Journal 1265.
91. The format of the introductions was shaped by the work of William Roughead, one of the earliest and most important editors. See L Farmer, ‘The Criminous and the Incriminating Narratives of Guilt and Innocence in Scottish Criminal Trials’ [2000] Juridical Review 285–304 . D’Cruze (n 74) explores the presence of the gothic in the narration of the interwar notable trials.
92. See eg the trial of Mary Blandy, accused of poisoning her father in 1752. The trial lasted only 13 hours, but the volume, edited by William Roughead, was supplemented by a number of contemporary materials.
93. Several of the late 18th century cases were Scots because a full defence had been permitted. See eg Katharine Nairn (1765) and Deacon Brodie (1788).
94. Classic examples would be: from Scotland, the trial of Burke and MacDougall (1828), the trial of Madeleine Smith (1857), the trial of Dr Pritchard (1865); from England, the trial of Courvoisier (1840), the trial of Constance Kent (1865), the trial of William Palmer (1856). See also The Trial of Thurtell and Hunt (1824) (n 78).
95. For example Atlay (n 53); R Storry Deans, Notable Trials. Romances of the Law Courts (Cassell & Co, London 1906); Forster (n 58); EH Bierstadt, Curious Trials and Criminal Cases (Hutchinson & Co, London 1930); EA Parry, The Drama of the Law (Ernest Benn, London 1929).
96. Notable exceptions were the trials of Oscar Wilde (1895) and Sir Roger Casement (1916).
97. In England, Florence Maybrick (1889), Thomas Neill Cream (1892), Adolf Beck (1896 and 1904). In Scotland, Alfred John Monson (1893), Oscar Slater (1908).
98. Trial of Hawley Harvey Crippen (F Young (ed)) (William Hodge, Edinburgh 1910). For a full analysis of the trial of Dr Crippen see Farmer (n 13). Newspapers were also increasingly aware of the role that they might play in the detection of crime. For a case where this is stressed see ‘The Camden Town Case (1906)’ in A Lambton, Echoes of Causes Célèbres (Hurst & Blackett, London 1931) 185–97.
99. Sir Travers Humphreys, who acted for the prosecution, claimed that he had directed Dew on certain points of the investigation: see n 5, 59.
100. See DV Browne and EV Tullett, Bernard Spilsbury. His Life and Cases (Penguin, London 1951). On the Glaisters see MA Crowther and B White, On Soul and Conscience. The Medical Expert and Crime (Aberdeen University Press, Aberdeen 1988).
101. Jones (n 67) 88.
102. Trial of Adelaide Bartlett (1886) (J Hall (ed)) (William Hodge, Edinburgh 1927). See also Kingston (n 4) 53–56.
103. See Birkett, Six Great Advocates (Penguin, Harmondsworth 1961). Rumours persisted that Hall had refused the defence brief in Crippen’s case, to the extent that Humphreys ends his account of the Crippen trial by seeking to quash rumours that Hall had turned down the brief because Crippen had refused to follow his instruction. See Humphreys (n 5) 62–63.
104. Edward Marshall Hall is the most celebrated of the barristers from this golden age; see E Marjoribanks, Famous Trials of Marshall Hall (Victor Gollancz, London 1929); for others see Birkett, ibid and Broad (n 10). L Bennett and M Feldman, Reconstructing Reality in the Courtroom. Justice and Judgement in American Culture (Rutgers University Press, New Brunswick NJ 1981) debunk these myths of the advocate.
105. On the drama of calling the accused see Lambton (n 86) 192–3, 195, 203–4. 94 ‘But the most amazing feature of the trial was the absolute coolness and imperturbability of Crippen in the long and terrible cross-examination’: (n 86) Introduction, xxxii. It is also included in a volume entitled Notable Cross-Examinations (EW Fordham (ed)) (Constable and Co, London 1951).
106. FE Smith, Earl of Birkenhead, Famous Trials of History (Hutchinson, London 1926); More Famous Trials (Hutchinson, London 1928). These were published as a single volume in 1935.
107. See also J Macdonnell, Historical Trials (A Selection) (Watts & Co, London 1931).
108. Lord Birkenhead, Famous Trials (Hutchinson, London 1935) 135–6. It is interesting to note that Sir Travers Humphreys, who acted for the prosecution in the case, claimed that Smith had rejected the opportunity to defend Crippen, opting instead for the ‘much easier’ task of defending le Neve; Humphreys (n 5).
109. Birkenhead, ibid, 283. See also Sir Roger Casement, 244; the Seddon case, 367–83.
110. See RM Jackson, ‘The Incidence of Jury Trial during the Past Century’ (1937) 1 Modern Law Review 132; on the rise of plea bargaining see
111. G Fisher, Plea Bargaining’s Triumph. A History of Plea Bargaining in America (Stanford University Press, Palo Alto CA 2003); M McConville and C Mirsky, Plea Bargaining. A True History (Hart Publishing, Oxford 2005).
112. H Hodge, Famous Trials, Vol 5 (Penguin, London 1955) Preface, 8.
113. See also Atlay (n 53) viii: ‘I have written neither for the schoolroom nor the law student, and my object has been to show that the drama of real life does not fall behind the boldest imaginative efforts of the detective novelist.’ Cf Moretti (n 17).
114. An additional element of entering the courtroom in these cases was provided by the availability of photographs of the unfolding drama—a practice that was eventually banned by the Criminal Justice Act 1925, s 41. The background to the Act is discussed in L Nead, ‘Visual Cultures of the Courtroom: Reflections on History, Law and the Image’ (2002) 3. Visual Culture in Britain 119. See also the photograph of Crippen and le Neve in the dock in Bow Street Magistrates’ Court, (n 86) 94.
115. See VAC Gatrell, ‘Crime, Authority and the Policeman State’ in FML Thompson (ed), The Cambridge Social History of Britain, 1750–1950 (Cambridge University Press, 1990);
116. L Farmer, Criminal Law, Tradition and Legal Order (Cambridge University Press, 1997) ch 4.
117. See Farmer, ibid, ch 5.