Historically interesting speeches and trials
The following speeches are one's that are historically interesting, and I've included those simply because they are historically good to know or because they are famous for some reason.
Bushel's Case arose from a previous case (R v. Penn and Mead or Trial of Penn and Mead, 6 How. 951) involving two Quakers charged with unlawful assembly, William Penn and William Mead. They had been arrested in August 1670 for violating the Conventicle Act, which forbade religious assemblies of more than five people outside the auspices of the Church of England. The jury found the two "guilty of speaking in Gracechurch Street" but refused to add "to an unlawful assembly". The infuriated judge charged the jury that they "shall not be dismissed until we have a verdict that the court will accept". The jury modified the verdict to "guilty of speaking to an assembly in Gracechurch Street", whereupon the judge had them locked up overnight without food, water or heat. The judge ordered Penn bound and gagged. Penn protested, shouting to the jury, "You are Englishmen, mind your Privilege, give not away your Right", to which juror Edward Bushel replied, "Nor shall we ever do." Finally, after a two-day fast, the jury returned a not guilty verdict. The judge fined the jury for contempt of court for returning a verdict contrary to their own findings of fact and removed them to prison until the fine was paid. Penn protested that this violated Magna Carta and was forcibly removed from the court. Edward Bushel, a member of the jury, nonetheless refused to pay the fine. You can read a transcript of this trial below, which is an appalling description of a highly abusive judge.
The Peoples Ancient and Just Liberties asserted in the Trial of William Penn Part 17.59 MB
The Peoples Ancient and Just Liberties asserted in the Trial of William Penn Part 26.4 MB
The Peoples Ancient and Just Liberties asserted in the Trial of William Penn Part 33.99 MB
Bushel petitioned the Court of Common Pleas for a writ of habeas corpus, which was granted. Sir John Vaughan, Chief Justice of the Court of Common Pleas ruled in November 1670 that a jury could not be punished simply on account of the verdict it returned, but that individual jurors could still be punished if it could be demonstrated that they had acted improperly. After the trial, William Penn sought to create a Quaker utopia in America. To Penn's surprise, the King granted an extraordinarily generous charter which made Penn the world's largest private (non-royal) landowner in the US, giving Penn over 45,000 square miles.
Penn drafted a charter of liberties for the settlement creating a political utopia guaranteeing free and fair trial by jury, freedom of religion, freedom from unjust imprisonment and free elections. The settlement was known as Penn's Wood. The old name for wood was sylvania, so the settlement became known as Penn's Sylvania, now Pennsylvania.
The Trial of Captain Kidd
Who doesn't like a good pirate story? The story of Captain Kidd started on 11 December 1695, when Bellomont, who was governing New York, Massachusetts, and New Hampshire, asked the "trusty and well beloved Captain Kidd" to attack Thomas Tew, John Ireland, Thomas Wake, William Maze, and all others who associated themselves with pirates, along with any enemy French ships. It would have been viewed as disloyalty to the crown to turn down this request, carrying much social stigma, making it difficult for Kidd to say no. The request preceded the voyage which established Kidd's reputation as a pirate and marked his image in history and folklore.
Four-fifths of the cost for the venture was paid for by noble lords, who were among the most powerful men in England: the Earl of Orford, the Baron of Romney, the Duke of Shrewsbury, and Sir John Somers. Kidd was presented with a letter of marque, signed personally by King William III of England.
The new ship tasked with catching pirates, Adventure Galley, was well suited to the task. Kidd took pride in personally selecting the crew, choosing only those whom he deemed to be the best and most loyal officers. As the Adventure Galley sailed down the Thames at the start of her voyage, Kidd unaccountably failed to salute a Navy yacht at Greenwich, as custom dictated. The Navy yacht then fired a shot to make him show respect, and Kidd's crew responded with an astounding display of impudence – by turning and slapping their backsides in disdain. Because of Kidd's refusal to salute, the Navy vessel's captain retaliated by press ganging much of Kidd's crew into naval service, despite rampant protests. Thus short-handed, Kidd sailed for New York City, capturing a French vessel en route (which was legal under the terms of his commission).
To make up for the lack of officers, Kidd picked up replacement crew in New York, the vast majority of whom were known and hardened criminals, some undoubtedly former pirates. The expedition got off to a bad start, as a third of his crew died on the Comoros due to an outbreak of cholera, the brand-new ship developed many leaks, and he failed to find the pirates whom he expected to encounter off Madagascar. His crew became hostile and threatened open mutiny. In this tense situation, Kidd killed one of his own crewmen on 30 October 1697. Kidd's gunner William Moore was on deck sharpening a chisel when a Dutch ship appeared. Moore urged Kidd to attack the Dutchman, an act not only piratical but also certain to anger Dutch-born King William. Kidd refused, calling Moore a lousy dog. Moore retorted, "If I am a lousy dog, you have made me so; you have brought me to ruin and many more." Kidd snatched up and heaved an ironbound bucket at Moore. Moore fell to the deck with a fractured skull and died the following day. Seventeenth-century English admiralty law allowed captains great leeway in using violence against their crew, but outright murder - amazingly enough - was not permitted.
Kidd was subsequently charged with both murder and five counts of piracy and you can read a transcript of his trial by going to archive.org
The Trial of Dick Turpin
Richard Turpin (bapt. 21 September 1705 – 7 April 1739) was an English highwayman whose exploits were romanticised following his execution in York for horse theft. The trial transcript contains the following information:
Details of his execution 4.06 MBwhich is actually worth reading
The Development of insanity as a defence - Erskine in the trial of James Hadfield (1800) who attempted to murder the king and McN'aughton (1843)
The Trial of James Hadfield
Hadfield's early years are unknown but he was severely injured at the Battle of Tourcoing in 1794. Before being captured by the French, he was struck eight times on the head with a sabre, injuries that affected him for the rest of his life. After returning to England, he became involved in a millennialist movement and came to believe that the Second Coming of Jesus Christ would be advanced if he himself were killed by the British government. He therefore resolved, in conspiracy with Bannister Truelock, to attempt the assassination of the King and bring about his own judicial execution.
On the evening of 15 May 1800, at the Theatre Royal, Drury Lane, during the playing of the national anthem, Hadfield fired a pistol at the King standing in the royal box but missed. Hadfield was tried for high treason and was defended by Thomas Erskine, the leading barrister of the time. Hadfield pleaded insanity but the standard of the day for a successful plea was that the defendant must be "lost to all sense ... incapable of forming a judgement upon the consequences of the act which he is about to do". Hadfield's planning of the shooting appeared to contradict such a claim. Due to the 1795 Treason Act, there was little distinction between plotting treason and actually committing treason, thus Erskine chose to challenge the insanity test, instead contending that delusion "unaccompanied by frenzy or raving madness [was] the true character of insanity". You can read his speech in this case here.3.54 MB
Two surgeons and a physician testified that the delusions were the consequence of his earlier head injuries. The judge, Lloyd Kenyon, 1st Baron Kenyon, at this point halted the trial declaring that the verdict "was clearly an acquittal" but "the prisoner, for his own sake, and for the sake of society at large, must not be discharged".
Up to that time, defendants acquitted by reason of insanity had faced no certain fate and had often been released back to the safe-keeping of their families. Parliament speedily passed the Criminal Lunatics Act 1800 to provide for the indefinite detention of insane defendants (and the Treason Act 1800 to make it easier to prosecute people for attempts on the life of the king). Hadfield later inspired further use of pleading insanity several years later during the case of Colonel Edward Despard. Hadfield was detained in Bethlem Royal Hospital for the rest of his life, save for a short period when he escaped. He was recaptured at Dover attempting to flee to France and was briefly held at Newgate Prison before being transferred to the newly opened criminal department at Bethlem (or Bedlam, as it was known). He died there of tuberculosis in 1841.
M'Naghten's trial for the "wilful murder of Mr Drummond" took place at the Central Criminal Court, Old Bailey, Thursday and Friday, 2–3 March 1843, before Chief Justice Tindal, Justice Williams and Justice Coleridge. When asked to plead guilty or not guilty, M'Naghten had said "I was driven to desperation by persecution" and, when pressed, "I am guilty of firing", which was taken as a not guilty plea. M'Naghten's defence team was led by one of London's best-known barristers, Alexander Cockburn. The case was prosecuted by the solicitor-general, Sir William Follett (the attorney-general being busy in Lancaster prosecuting Feargus O'Connor owner of the Northern Star newspaper 2.91 MB and 57 other Chartists following the plug riots).
Both prosecution and defence based their cases on what constituted a legal defence of insanity. Both sides agreed that M'Naghten suffered from delusions of persecution. The prosecution argued that, in spite of his "partial insanity", he was a responsible agent, capable of distinguishing right from wrong, and conscious that he was committing a crime. Witnesses, including his landlady and his anatomy lecturer, were produced to testify that he appeared generally sane.
Cockburn opened his defence by acknowledging that there were difficulties in the practical application of the principle of English law that held an insane person exempt from legal responsibility and legal punishment. He went on to say that M'Naghten's delusions had led to a breakdown of moral sense and loss of self-control, which, according to medical experts, had left him in a state where he was no longer a "reasonable and responsible being". He quoted extensively from Scottish jurist Baron Hume and American psychiatrist Isaac Ray.
Witnesses were produced from Glasgow to give evidence about M'Naghten's odd behaviour and complaints of persecution. The defence then called medical witnesses, including Dr Edward Monro, Sir Alexander Morison and Dr Forbes Winslow, who testified that M'Naghten's delusions had deprived him of "all restraint over his actions". When the prosecution declined to produce any medical witnesses to counter this evidence, the trial was halted. Follet then made a brief, apologetic closing speech which he concluded with the words "I cannot press for a verdict against the prisoner". Chief Justice Tindal, in his summing up, stressed that the medical evidence was all on one side and reminded the jury that if they found the prisoner not guilty on the ground of insanity, proper care would be taken of him. The jury, without retiring, duly returned a verdict of not guilty on the ground of insanity.
The transcript of this trial is well worth a read for several reasons. First of all, this is probably one of the fairest trials I have read, where both the advocates and the judges demonstrate a high order of fair dealing. For example, Cockburn was clearly ill and in pain, and after the prosecution had concluded for the Crown he asked if he could start the defence submissions the following day. The judge queried whether it would be possible to conclude the case tomorrow, and if that was probable then he was very happy to defer the defence submissions until tomorrow" to which Cockburn replied " I do not want to mislead the court so if you want I can carry on." The judge still decided to wait until the following day before the defence submissions had to be made, which was fair to Cockburn and to M'Naughton, even if the former could have soldiered on. The other clear impression that one gets reading this transcript is the deep compassion that the advocates and the judge had towards M'Naughton, at a time when mental health issues were not well understood. So whilst this case, and the subsequently developed guidelines are well known today they are also worth reading for the very high standard of behaviour demonstrated by all involved, and the case transcripts are available below.
Cross examination and EIC exercise from M'Naughton
You will find when you read the examination of witnesses for the prosecution, and the examination of lay witnesses for the defence that it is not a full transcript. The witnesses replies are there but often the questions by the advocate are not. This is actually a good thing as it gives anyone interested in working on their XX and EIC technique the opportunity to practise writing out questions, as you have the answers there already. Also, it may be useful to try and identify the objectives of the advocates in relation to each of the witnesses. Given that the advocates involved in this case clearly know what they are doing, where full transcripts are provided then you could try writing out your questions to those witnesses and then comparing your questions with those used by the advocates in the case.
A female orator! And politician! AT THE BAR!!
This relates to the wonderful 1818 case of Miss Tocker,7.05 MB for her libel against Richard Gurney, a judge who had fled the country for debt, but carried on claiming his judge’s salary. Miss Tocker wrote a strong letter to the papers expressing her disapproval with this practice, and arguing that he shouldn’t be able to claim a salary if he wasn’t doing the work. Miss Tocker was charged with libel, and on the day of her trial, her brother announced that she would be conducting her own defence. This caused a sensation. She started her defence by saying:
“She threw herself upon the indulgence of the court; and hoped any irrelevant matter she might bring forward would be attributed to ignorance and not to intention. She came before them wholly ignorant of the equivocations of law ; unpractised in the arrangement of an argument, and destitute of the graces of oratory; with only the rude weapons of reason and the untutored eloquence of nature, to oppose tried talent and professional skill. Sbe was not qualified to discuss the question except on the moral ground of right and wrong, and on this it must finally rest."
This opening always reminds me of that great quote in Terry Pratchetts Witches Abroad "When an obvious innocent sits down with three experienced card sharpers, and says "How do you play this game, then?'someone is about to be shaken down until their teeth fall out." Which is pretty much what happened.
For the next two hours, she defended herself in spite of repeated interruptions from the Judge, quoting extensively from Blackstone's Commentaries, John Locke's Essay concerning Human Understanding and the words of the Lord Chief Justice, Lord Ellenborough. The main points she made in her defence were that :
Men in public office could not complain about fair comment on the execution of their duty.
Her reading of history, jurisprudence and moral philosophy led her to believe that the law was perverted when the maxim, 'the greater the truth, the greater the libel', directed the decision.
She could prove in evidence that all the charges she made in her letter were true.
The judge directed the jury that her comments were an atrocious libel. The jury listened politely, retired for half an hour and came back with a not guilty verdict. Mary Ann later commented on the reaction of the crowds to the verdict:
“Even the Ex-Vice Warden, his father and brother, these pious and charitable pastors who came to witness my condemnation and ruin, must have heard the loud cheering of the different parties of legal gentlemen at the principal Inn in Bodmin on receiving the news.”
Twenty five years after her trial, the Libel Act 1843 changed the law on Libel to allow a defendant to argue that what had been said was true and in the public interest just as Mary Ann Tocker had argued in her trial. Mary Ann Tocker became a poster girl for those seeking to change the law so women could join the legal professions, although it would take 100 years after her trial for that to happen. But she was definitely a front runner for women at the Bar, and the story of her trial is a great story in its own right.