1No historian of the criminal law in the nineteenth century can fail to be struck by the sheer scale of popular interest and involvement in criminal justice. Contemporary accounts frequently stress the size of the crowds at executions, the densely packed courtrooms, the number of signatories of petitions for mercy, or the more intangible public excitement as evidenced by sales of broadsides and later newspapers. Executions in London or assize towns were reported to have regularly attracted crowds of 20,000 or more – a figure that might rise in particularly celebrated cases.1 The execution of the famous poisoner, Dr Pritchard, on Glasgow Green in 1865, for example, (the last public execution in Scotland) was said to have attracted a crowd of over 100,000 people. Even allowing for the likelihood of exaggeration these numbers seem an extraordinary index of the power of crime and punishment to excite and fascinate. Yet the question remains of what it was about the spectacle of crime and punishment that could draw and sustain this interest. Historians have pointed to the decline of the spectacle of the execution and the adoption of new forms of punishment in the early years of the nineteenth-century, as the authorities became increasingly concerned about their ability to control the meaning of the event.2 Yet it is unclear how public interest in the spectacle of criminal justice was sustained as public executions became less common in the 1830s and were finally abolished in 1868. Though it is often implicit in these accounts that the administration of justice simply became more predictable and routine, this would leave unexplained the high levels of public interest throughout the century. As an alternative, it can be argued that this popular attention shifted from execution to trial – to the extent that the end of the nineteenth century has recently been described as “the Age of the Trial”, a period in which sensational trials were played out as popular melodramas.3 It can, thus, be argued that there was not a decline in the spectacle of criminal justice, but a refocusing of interest – reordering the spectacle and the forms of public participation.

2The question of the production of a new kind of spectacle of criminal justice centred on the trial has been addressed in the French context in a recent book by Katharine Fischer Taylor.4 Her argument, a variant on a Foucaultian theme, is broadly that the reconstruction of the Palais de Justice in 1868 offered the opportunity to construct a new iconography of criminal justice. She examines the art and architecture of the new building not only as symbols of justice, but also in terms of the way these interacted with criminal procedure – specifically in the context of the movement from secret to public proceedings. As part of this process, the courtroom was reorganised to allow the criminal trial to be presented as a theatre or display, allowing public access to and observation of the proceedings, and in which the centrepiece was the examination of the accused. The key to understanding this movement, she argues, is a principle of publicity, in which the public text of the law (the penal code) was supplemented by the procedural publicity of the trial. The iconic form of sovereign justice characteristic of the ancien regime was not displaced by the text of the code; it was rather the interaction of textual and oral proceedings that enabled the “reviving [of] iconicity when its traditional subject, the ruler, had been displaced by a diffuse new subject, the public”.5

3The thesis is a powerful one and offers a convincing account of the new court and its place in the changing system of criminal justice. However, it is not clear that it can readily be extended to the English (or Scottish) context. First, while the trial in Britain was never secret, the historians of the English adversarial process have drawn attention to the muted nature of the trial – the fact that there seemed to have been a deliberate eschewing of publicity, and that the court-room and criminal procedure were organised so as to minimise dramatic potential.6 This was, moreover, also true of the criminal law, where in the course of the century lawyers and judges stoutly resisted several efforts to render the law in the more public form of a code.7 These points could be made at greater length, but it is sufficient to point to the observations of an official French observer of the English criminal justice system in the early 1820s, one Charles Cottu, whose remarks capture certain characteristic features of the nineteenth-century trial. He compared English and French trials, remarking that:

“Public interest is not excited by the countenance of the prisoner, who is placed with his back to the spectators; nor by the unfolding of the proofs, nor by the prisoner’s resistance... There is no contest between the plaintiff and the defendant; and the latter never offers anything more than the spectacle of a man who seems careless about the issue of the trial, and leaves his life to be disputed between the prosecutor’s counsel and his own”.8

There was nothing that would call forth the passions of the spectators as would be the case in the French trial, and his impression of the process was that the accused did so little in his own defence that “his hat stuck on a pole might without inconvenience be his substitute at the trial.”9 It is, moreover, well known that the examination of the accused on oath was not permitted until 1898 with the passing of the Criminal Evidence Act, and so the focal point of the shift that Taylor describes in France seems to be missing. Thus, although the trial was becoming the focus of the criminal justice system, this seems to have been achieved without the explicit symbolic and procedural reordering that occurred in France.

4My aim, then, in this paper is to address this question of how the criminal trial became the central symbol of criminal justice in Britain in the course of the nineteenth-century. My argument will be that although there was a gradual transformation of criminal law and procedure over this period, much of the work that was done to produce the trial as spectacle occurred outside the courtroom, giving meaning to practices that occurred within them. This development can be traced through the changing forms of trial narratives published over the period. These narratives, combining entertainment, amusement and instruction, present a picture of the legal process becoming more orderly and respectable, which can be linked to the development of criminal justice in the same period. This process culminates in the emergence of the "notable trial” in England and Scotland at the end of the century. Through the study of these narratives we can see how the trial was reordered and produced as a new kind of popular spectacle in the latter half of the nineteenth century.

The Rise of the Notable Trial

5The publication of reports of crimes and executions is almost as old as the printing press itself. However, there was an explosion in the number and variety of publications on these criminal trials between the mid-eighteenth and the mid-twentieth centuries. These reports took various forms. By far the largest number were accounts of single criminal trials. Many of these were brief: a short account of the trial was the almost final act in the bringing to justice of a celebrated criminal – the last act being the dying speech and execution. These broadsides and pamphlets, sold at executions, focused primarily on the career of the criminal, linking the lurid description of their descent into crime to formulaic expressions of remorse and repentance.10 These seemed to have functioned as a supplement to the spectacle of punishment, re-enacting the moral lesson of the scaffold, with human judgement standing in for divine judgement. However, in a surprisingly large number of cases, the published accounts of trials contain the full charges against the accused, transcripts of the cross-examination of witnesses, speeches from counsel and bench (where permitted), and the sentence. Some of these, such as the Newgate Calendar and the Old Bailey Session Papers, an eighteenth-century series which published accounts of all trials at a particular session, are already well known.11 However, an even larger number are accounts of single trials, published either commercially, or as private ventures by those accused and convicted, in an attempt to vindicate themselves.12 In addition, even as early as the mid-eighteenth century some early periodicals and newspapers, recognising that crime sells, would publish quite detailed accounts of criminal proceedings.13

6While a substantial amount of attention has been paid to the “lives” of criminals, and legal historians have drawn extensively on sources such as the Old Bailey Session Papers as evidence of changes in the form of legal proceedings, rather less attention has been paid to the changes in the form in which trials were represented.14 This is a large topic, and I propose to focus on only a small part of it – the publication in book form of narratives of notable or remarkable trials, based on materials drawn from pamphlets and journalistic accounts.15 As Harris has pointed out, these collections aimed at a prosperous readership had begun to be more common by the end of the eighteenth-century, and established a new kind of relationship between the reading public and the law.16 However, their popularity continued to grow over the course of the following century, when we see not only an increasing number of such publications, but also significant changes in the themes and focus of such collections. This phenomenon, and the kind of relationship it established between readers and the law, has not been properly examined.

7These accounts of trials are of interest for various reasons. First of all, they are clearly independent of and aimed at a different market from the broadside or pamphlet, or later the newspaper accounts, on which they were parasitic. They were for consumption by the upper classes (especially in the earlier part of the period) and later the respectable, and enfranchised, middle classes. These aimed to establish a more permanent record, taking the ephemeral and placing it against a variety of different contexts, so as to draw out its broader political, moral, or even aesthetic, lesson. As such they can also be seen to be carrying out an explicit educative function, alongside that of simple entertainment – and in this there was a conscious distancing from the cruder fascination with executions that was associated with the lower orders. Though broadsides and trial narratives all arguably carried some sort of moral message, in these collections it was clear that there was an effort to make the interest in the criminal law more respectable, for middle class consumption, and to offer it as a kind of useful knowledge. Additionally, through editorial comment and organisation, concerns about the functions of the trial and criminal law were usually made more explicit than in the shorter pamphlets. A final noteworthy feature of these collections is that there is a high level of recycling of cases between them. Thus, a single trial could reappear in a number of different collections at different times (the borrowing frequently unacknowledged) at times with a view to the illustration of a different point.17 In this way these collections gradually formed a canon of notable trials and a pantheon of great lawyers, which was central to the legitimation of the trial and the criminal law.

8I propose to examine these narratives by dividing them into three broad periods, corresponding broadly to stages in the development of the modern adversarial trial. The first, between 1750 and the 1830s, covers a period in which the adversarial trial was developing, its conclusion corresponding to the decline of public executions and the passing of the Prisoner’s Counsel Act 1836.18 The second, broadly between 1830 and 1900, covers the consolidation of adversarialism in the trial and concludes shortly after the passing of the Criminal Evidence Act 1898. The final period focuses on the representation of the trial in the early part of the twentieth century – the “Golden Age” – in which the form of the adversarial trial might be said to have come to fruition. I should stress, however, that these periods are not rigid: the characteristics of one may appear in later or earlier periods, and the dates I have chosen are not absolute cut-off points. The periods can perhaps best be seen as corresponding to certain themes around which the literature on notable trials was organised, and that the centrality of these themes and organising principles shifts over time – something that is perhaps best demonstrated by the way that a single case might be taken to illustrate different principles over time, or where in a later period prominence was given to cases that had not previously been regarded as important. The significance of the periods is thus primarily to underline the relationship of the representation of the trial to broader changes in criminal justice. I shall examine each period in turn, drawing examples from both Scotland and England.19

1750 -c. 1830

9In general, collections from this period followed a common format. There is a short editorial preface, explaining the design of the editor or publisher, followed by accounts of cases drawn from the official legal record, contemporary pamphlets, or notes made at the time of the trial. The level of detail and abridgement of cases could vary greatly depending on the available sources, as well as the aims of the editor and the perceived audience. The most marked characteristic of these earliest collections is their high legal content. Indeed, in many cases, the collection is presented primarily as a form of law report.20 The most obvious and celebrated instance of this is the State Trials series which mainly covered trials for treason and other political offences since 1163.21 Though later achieving iconic status, this was first published anonymously in 1719, and the original series was supplemented throughout the eighteenth century by later editors, before the production of the definitive series in 33 volumes between 1809 and 1828.22 A less well-known example of this form was published in 1808 under the title A Collection of Remarkable and Interesting Criminal Trials, Actions at Law etc.,23 covering trials drawn from England, Scotland and Ireland between 1802 and 1804. This would seem to have been an attempt to be comprehensive, after the manner of a law report, rather than a simple selection of the celebrated or scandalous. We find similar publications in Scotland, where two of the earliest published collections link the functions of reference and instruction. The first, published in 1774, makes this explicit:

“In this country but few trials have been printed; no treatise of merit has yet appeared on its criminal law; and it is irksome to search the record of the court of justiciary...: I was persuaded therefore, that such a collection would contribute not a little to the advancement of jurisprudence, and be useful also to many gentlemen not bred to the law, who are called upon by the constitution to serve as jurymen”.24

A later collection, published in 1833, had the aim of combining a collection that would be of practical utility to the lawyer with introducing the general reader to the early Scots criminal law and the national manners, customs and superstitions of an earlier age.25

10However, I wish to focus in more detail on two collections, one English and one Scottish which, because of more detailed editorial introductions, give a clearer idea of the themes and organising principles of the collections in this early period. The first is a collection published anonymously in 1825.26 This collection, billing itself as the first “popular collection” in the English language, explicitly sought to position itself as suitable reading for the middling and respectable classes through a comparison with the other available sources.27 The Newgate Calendar was condemned for sympathising too much with the its subjects, while the State Trials were liable to “degenerate into intolerable dullness (szc)”.28 In the view of the compiler the only direct comparator was the French series Causes Célèbres, but where that was “light, frothy, prolix, and sentimental” as the French character demanded, the present collection was adapted to the “chastened taste and matter-of-fact curiosity of the English reader.”29 The focus of the collection was primarily on historical cases, and those in particular that demonstrated the abuse of political power. These, the editor confessed, had left a “mournful impression” on his mind, for the criminal records showed the failings of human nature, both in those condemned at the bar, and in the “State criminals” on the bench:

“In one instance, every sentiment of virtue is set at defiance, while in the other, virtue is put to the blush, and sound axioms of justice dispensed with, or flagitiously compromised.”30

The best defence against such abuses was to be found in the publicity of judicial proceedings, and the protection that derived from the twelve indifferent men of the jury, who were exhorted to perform their duties ever more diligently.31 Central themes are thus publicising abuses of power, ensuring the regularity of judicial procedures, and of educating the class of prospective jurymen in their duties. The trial is presented as a means of securing a not yet stable liberty through the means of public participation.

11This connection between a hard-won political liberty and criminal process is made even more explicit in the collection made by Hugo Arnot, published in 1785.32 The bulk of cases he includes were drawn from outrages committed in the course of the religious and political struggles of seventeenth-century Scotland. Like Borrow, he complained of the “melancholy display of human nature” revealed in the outrageous crimes of the prisoners and in “the legal murders of the court”.33 A remarkable, and probably unique, feature of his collection, however, is the explicit attempt to locate the history of the criminal trial within the framework of Scottish enlightenment thought. The function of the collection, therefore, was more than entertainment alone. It demonstrated the application of a rational method to the collection and analysis of the criminal record, so as to illustrate the course of historical progress and the benefits of a certain style of government. He declared at the outset his belief that “The Criminal Records of a Country are an historical monument of the ideas of a People, of their manners and jurisprudence.”34 They are thus presented as a narrative of historical progress from barbarism to enlightenment, and from tyranny and superstition to free government. Throughout the work he developed the argument that the shortcomings of the law derived from the want of science, in the sense of a rational form of proof, and civil liberty introducing “carelessness into the forms of judicial proceedings, and injustice in the measure of legal evidence.”35

12The themes of the collections in this early period were thus closely linked to a perception of the trial as a political institution that was central to the protection of liberty. It is noteworthy that, in spite of contemporary concerns with securing the institution of the jury, in the main they cast back to earlier periods, and particularly the troubled seventeenth century, thus to stress the abuses of power and a Whiggish view of liberty.36 They were aimed at a reasonably narrow readership among the educated classes, and particularly those who might be called on to serve on a jury. This class of jurymen was small, and would probably already have some experience of the criminal law, and thus could be expected to have some interest and familiarity with some of the legal detail.37 Finally, in the selection of political crimes above crimes against the person it is clear that the value of political (rather than moral) education was placed above that of pure entertainment. Though standing as a powerful symbol of liberty, the trial was not yet conceived of as a spectacle.

c. 1830-1900

13These concerns do not disappear in the collections of narratives published in the second period, but they are supplemented, and to a limited extent displaced, by others. Although the themes of political and legal education remain central, one of the marked features of the collections from this period is that they become much more explicitly popular and focused on the trial as a form of spectacle. One indicator of this shift is the development of the State Trials series, which moved from the assertion of political liberties to the popularising of anecdotes and personalities.

14The publication of the definitive edition of the first series, covering trials between 1163 and 1820, was concluded in 1828. In the late nineteenth century a committee of distinguished jurists was appointed, under the chairmanship of John Macdonnell, Quain Professor of Jurisprudence at University College, London, to extend the coverage.38 This led to the publication between 1888 and 1898 of a further series of eight volumes covering the period between 1820 and 1858. This venture had been shortly preceded by two private attempts to extend the coverage of the original series and make it more accessible to the student of constitutional history – though these volumes remain dense and difficult reading notwithstanding the efforts of their compilers to make the legal texts accessible to the general reader.39 A more successful attempt to popularise the content of the State Trials came with the publication of a selection of cases edited by H. L. Stephen’s between 1899 and 1902.40 A distinguished lawyer and judge, Stephen recognised that even the “intelligent and meritorious” person might find Howell’s originals to be rather hard going, and that the content could usefully be popularised.41 His aim in doing so, however, was less that of illustrating constitutional history, than of the domestication of the law: he claimed to be trying to bring the atmosphere of the crown court into the study, and the traitor, murderer or witch into the drawing room.42 His proposed method was thus to give a brief historical background to each case, and to condense the original in such a way as to bring the historical characters and legal procedures alive by including lengthy extracts of courtroom exchanges and speeches. It was perhaps surprising to find Stephen admitting that, notwithstanding the success of the venture, the original series had been quickly mined of suitable material.43

15More characteristic of the turn taken in the coverage of trials in this period was the book published by W. C. Townsend under the title Modern State Trials in 1850.44 Here the reader is directed that the term "state trial” is not being used in its traditional sense but as more general term to denote notable or celebrated cases. Thus while the collection included some cases that concerned the state directly, most were included either for an inherent’ interest or from a desire to preserve the speeches of counsel. There was also a marked change in the way that the material was being presented, with each trial being preceded by a short essay explaining the legal context, and the trial report being rescued from “dry severity” by the introduction of passages of cross-examination, the clashes between counsel, and the painting of the forensic scene – all features which made up “the poetry of action of these legal dramas.”45

16Increasingly, then, in the place of the detailed legal record we get full-blown narratives. The trials were retold by the editor, and the legal background replaced by a concern with the aesthetic or moral aspects of the crime and trial. There was a growing interest in the character of the criminal, and of the macabre for its own sake, which reflected a broader shift in Victorian aesthetics and perceptions of crime.46 This change probably took place for a number of reasons. The rise of more systematic forms of law reporting meant that there was less of a need to provide systematic and scholarly accounts of legal decisions. Moreover, this was a period that saw a vast expansion in the numbers of newspapers,47 for which the everyday reporting of criminal proceedings was standard, and it seems that these narratives took on the function of engaging in a more detached reflection on the meaning of criminal proceedings.48 Just as importantly, the growing emphasis on the trial as a drama revolving around the revelation of evidence and the interventions and speeches of counsel, reflected the changes in legal procedure that allowed the expansion of the role of counsel in the preparation and conduct of a case. This can once again be illustrated by the consideration of two characteristic examples, both published in 1852.

17The first of these is a collection by Burke, entitled The Romance of the Forum, or, Narratives, Scenes and Anecdotes from Courts of Justice.49 The second is the noted Scottish historian John Hill Burton’s Narratives from Criminal Trials in Scotland.50 In both of these works we find the author performing the curious balancing act of claiming that the legal records speak for themselves, while simultaneously reserving their right to abridge and explain it in their own language. For Burton, the force of the records was self-evident:

“Whosoever professes to disclose from criminal records anything that has both importance and novelty to recommend it, will generally need no further excuse for offering it to the public.”51

However, for him the interest lay primarily in what criminal records could reveal about a society: “The administration of criminal justice [...] cuts to the very centre of society, and lay [s] bare all its strata.”52 His broader project, not unlike that of Arnot, was a narrative of historical progress, in which the form of the criminal law was an index of a more general social change. It was not, therefore, surprising that seven of the ten general narratives in the book were devoted to political and religious trials, with his most biting criticism reserved for the brutalities and superstitions of witch trials. The civility of the present was underscored by wildness, either in the savageries of past practices or by reference to the geographically remote and uncivilised regions of the Scottish highlands.

18For Burke, by contrast, it was the pursuit of the uncivilised or elemental at the heart of society that was the object of interest. Addressing the theme of the truth of his narratives, he resorted to a striking, if rather overblown, metaphor. The narratives of justice, he asserted, could be compared to the relationship between cultural artefact and landscape. Although a building might add to the romantic perspective of a landscape, the landscape may be just as beautiful without it:

“So is it with regard to many of the narratives which justice... searches out, unravels and puts on lasting record.”

These might form the scenery for the romantic writer:

“But they are often themselves so wild and wonderful that they had better not be built on at all”53.

The truths of these tales, then, would reveal themselves unembellished, and the job of the editor was merely to show them as they appeared on the record – though any improper or indelicate materials would obviously be suppressed. In the pursuit of this truth he specifically eschewed any consideration of state or political trials, in favour of a concern with those crimes which had caused sensation by means of some marvellous or romantic circumstance.54 What is particularly striking in the treatments of both Burke and Burton, however, is the comparison with the writing of fictional romances. In this period crime and the trial were becoming sources for the fictional writer precisely because of the insight it was thought they could give into the character of both the individual and society.55 Thus, crimes relating to private life were of the greatest interest because by revealing “the utter futility and wretchedness of crime”, they could provide instruction not only for the head, but also for the heart.56

19This turn away from political offences to the so-called “domestic crimes” – and in particular murder – reflects a broader shift in the nature of criminal trials in the nineteenth century, in which murder trials in particular became longer and more contentious, and the focus of higher levels of public interest.57 The introduction of counsel in England, following the Prisoner’s Counsel Act 1836, had the effect of making the procedure more adversarial and increasing the element of spectacle, as counsel played a greater role in the presentation of the case and the examination of witnesses.58 The increase in the length of murder trials was also a consequence of changing practices of policing and the detection of crime, as more witnesses were identified and called, and the causes of death subjected to an ever more rigorous forensic examination. As a result of the press coverage, the accused and their counsel, witnesses and judges, were participants in a wider public realm, and their character and exploits were widely known. The trial became the locus of a stylised public conflict over the meaning of crime, and it is likely that these collections played an important role not only in legitimating the developing adversarialism of the trial but also in shaping broader understandings of the effectiveness of the institutions for the policing and prosecution of crime.

20There was for both writers an increasing sense of security in the capacity of legal procedures to reveal the truth of events – the record can speak for itself because it is the judicial record, but that in turn represents the truths established by the legal procedures of the trial. To give a brief, but noteworthy, example of this, we might consider Burton’s discussion of spectral and dream testimony. In considering a number of cases of this sort from Scotland and elsewhere, he mused on the fact that supernatural events had so rarely found their way into the proceedings of the courts of justice.59 The reason for this was less the reluctance of ghosts to appear before the jury than the superior nature of the legal method of proof, "in which different things are ascertained separately and without reference to each other.”60 The clarifying light of open inquiry was concentrated in the tribunals of law – and counsel could assist the accused or jury by drawing the proper inferences from the evidence.61 The trial and the criminal law were increasingly seen less as a political institution than as a means of access to truth about character and society.62 The moral lesson that was to be learned was less about the instability of the political order, than of the futility of crime given that the law would inevitably detect and punish the criminal.

21The collections produced in this period thus share a number of strong common themes and trends. First, as I have noted, there was less concern with the trial as a political institution, and more concern with the private and domestic. In this we see a celebration of the trial not only as a truth-discovering institution, but also as one that was capable of revealing the truth about other social phenomena. This confidence was important to the wider legitimisation of adversarialism and a codifying of the changing roles within the trial, and especially the developing role of counsel. Finally, foreshadowing later developments, the style of the narratives increasingly sought to domesticate the trial, simplifying legal detail, and concentrating instead on the personalities and rhetoric, placing the reader in the position of one who could judge and directly participate in the trial process.

1900-1950

22In the final period, the themes relating to the political aspects of the institution of the trial have almost entirely disappeared, and in their place the narratives come to be organised around the new elements of drama and scandal, underscoring the developments of the earlier period. In this period we witness the emergence of the “notable trial” – a term I have taken from a publishing venture, the Notable British Trials series, which dominated the literature of trials in this period. I shall discuss the principal characteristics of this literature through a description of the series, and the examination of one celebrated trial of this period, that of Dr Crippen the poisoner in 1910.

23The Notable British Trials series was published by Edinburgh publishers William Hodge between 1905 and 1959. Beginning as the Notable Scottish Trials series in 1905, the success of the venture led in 1921 to an expansion to include all British trials. In all a total of 83 volumes was published in the series (including volumes on the Nuremberg Trials), some of which went through several editions. Many of the introductions attained a classic status, being published and republished in a series of Penguin books on notable trials, itself running to ten volumes. In addition, many were subsequently broadcast by BBC radio in the 1930s and 1940s, the transcript providing a ready-made script.63 The format of each volume was distinctive. It would contain the complete transcript of the trial, including a record of cross-examination, the evidence of all witnesses and speeches by counsel and the trial judge – and often such bonuses as the police photograph of the murder weapon and detailed plans of the locus of the crime. This would be preceded by a lengthy introduction by the editor, which performed the primary function of introducing the lay reader to the background of the case, and providing a guide to the evidence and legal argument.64 Additionally, there would be a detailed account of the detection of the criminal, and an effort to convey something of the atmosphere in the courtroom as the key stages of the trial developed. The format spawned many imitators before the publication of trials eventually began to decline in the latter half of the twentieth century.65

24It can be argued that the repeated inclusion of certain cases contributed to the formation of a “canon” of trials, notable for the peculiarity of their facts, the character of the criminal, or the notoriety of the trial at the time it took place – criteria which also governed the compilation of volumes of narratives of “notable trials” in this period. This canon, in turn, underscored certain features and lineage of the adversarial trial. Broadly speaking, three types of trial were regarded as notable. The first type was the historical trial. There were, in general, fewer of these in the series because trials from before 1800 were shorter and full transcripts were usually unavailable. Where included, these often drew on the State Trials series, and so tended to be “political” crimes, and only crimes against the person where there had been some additional element of scandal or horror which had led to their inclusion of the case in the State Trials.66 Other compilations were less constrained by this, as in general they sought only to present a narrative of the crime and trial, rather than the full record, and in this period we see the publication of a number of compilations of historical trials which sought to stress the lineage of the trial and the progress of the institution.67 The second type of case was the nineteenth century “cause célèbre”, usually murders, where there had been some element of scandal, notoriety or horror, and these cases would often draw on contemporary pamphlets or newspaper reports to supplement the legal record.68 This also remained a popular theme of compilations, which had shed the earlier concerns about the superficiality (or foreignness) of the interest in scandal or character. In general these stressed the human interest, the character or status of the accused or victim, and increasingly the drama of the trial itself.69 The final type of case were contemporary cases, and here the editors of the series drew on an extraordinary series of celebrated trials from the turn of the century, where the public interest in the trial fed by sensationalist press reports became a further element in the unfolding of the drama of the trial. These cases were almost exclusively murder trials,70 and became notable because of the combination of both the crime and its detection and the trial. These trial narratives focused on the forensics of detection and argument, and the character of the criminal as it was revealed in the trial process.71 These various features come together, and can be illustrated, by looking at accounts of the trial in 1910 of Dr Hawley Harvey Crippen for murder of his wife.72

25In many respects the crime of Dr Crippen was unremarkable, and its notoriety owes much to the way that his character was supposedly revealed by his trial. Practicing as a small time medical practitioner in London, Crippen took a mistress – Ethel le Neve – and then poisoned his wife, hiding her dismembered body beneath the cellar floor of their suburban home. He then gave out that his wife had left him for another man, and his mistress moved into the house and began to wear the wife’s jewellery. The police were alerted to the possibility of wrongdoing by friends of the wife who did not believe his story. After dealing with their initial investigations, Crippen apparently panicked and, with his mistress disguised as a boy, fled for North America. After reading a newspaper description of the fugitives, the captain of the ship on which they were travelling recognised the pair, and telegraphed the police in London who were able to arrest the pair as they arrived in Quebec – thus making this the first time wireless telegraphy was used in the detection of criminal fugitives.73 The pair were extradited to London where Crippen was tried and found guilty and hanged.

26The trial of Crippen took place over 5 days in October 1910, and I wish to note some features which demonstrate not only how the trial itself was changing, but also how this allowed the narratives to be organised around particular themes. First of all there is the use of forensic evidence in the trial, which demonstrates the changing character of detection and the growing involvement of expert witnesses in the criminal process. The prosecution case was based on the evidence of 32 witnesses, and took the best part of three days to present. These included friends and acquaintances who gave evidence as to Crippen’s statement about the supposed death of his wife, and also to their surprise at seeing Ethel le Neve wearing her jewellery. However, much of the case was based on the evidence of the investigating detective, Inspector Dew, and that of five expert medical witnesses who testified as to the identity of the remains found beneath the cellar floor, and the likely cause of death – poisoning by hyoscin. The defence in turn brought in three experts in an attempt to refute the prosecution case on these points. This backfired spectacularly as under cross-examination the first was required to admit that he had made an error as to the part of the body a certain piece of skin had come from, and another – the author of a standard textbook on poisons – had lamely to suggest that he had changed his opinion in the past weeks about the toxic effect of a certain drug. The principal significance of this is less in the particular outcome, than as an illustration of the changing length and character of the criminal trial. This placed an increasing stress on the process of police detection as the organising principle in the presentation of circumstantial evidence, and the also on the lengthy presentation of technical forensic evidence as part of the case for prosecution and defence. While the latter, in particular, was eagerly reported by the press and could add to the ghoulish fascination of the trial, it is clear that both these factors contributed to making the trial a more complex and technical process.

27This was a process that was increasingly mediated by lawyers, and it was their involvement, in opening and closing speeches and in the examination and cross-examination of witnesses, that brought this process to life. Accordingly an important theme in the narratives was the question of tactics and the astuteness of counsel in dealing with certain witnesses and pieces of evidence. I have already pointed out how one of the key dramatic moments in the Crippen trial was the admission of error by the expert witnesses for the defence. A further example from the Crippen trial, which also demonstrates an important legal change, is the examination under oath of Crippen himself. Prior to 1898 the accused was not permitted to give evidence on his own behalf, but with the passing of the Criminal Evidence Act in that year, the accused became an important participant in their own trial.74 A central plank of the defence strategy was examination of Crippen himself, aimed at demonstrating the absence of motive, and at providing an explanation for his flight from London.75 Once again, this backfired, as the counsel for the prosecution, Mr Richard Muir K. C., took the opportunity to subject Crippen to a lengthy cross-examination. This was remarkable less for any particular admissions or moments of drama, than the way in which the sustained and intensive examination contributed to the prosecution’s case as to the character of Crippen.76 Much of the defence cross-examination of prosecution witnesses was aimed at showing Crippen’s good character, with witnesses being asked to comment on his kindness and public affection towards his wife. The prosecution case, by contrast, aimed to demonstrate his essential duplicity – shown in his extramarital affair, his admitted lies about the disappearance of his wife, and his calmness in continuing to go about his everyday business. Just as importantly, his coolness under the pressure of sustained questioning was presented as confirmation of his character and his capacity to perform the monstrous deeds of killing and dismemberment that were alleged by the Crown.77 This was further elaborated in the Introduction, which presented the crime as a very un-English “crime passionel”, and Crippen as a romantic “who killed his wife in order to give his life to the woman he loved’.78

28The notable trial then was one that could bring together and orchestrate these various features in such a way as to present the trial as both the culmination of the process of investigation, and as a means by which the certain truths about human character and affairs could be revealed. It was thus not surprising that the murder trial should be the dominant form of “notable trial” for it fit best with the model of the “proper” criminal trial. The special issues of circumstantial evidence, the revelation of the meaning of random and seemingly unconnected facts, the relentless probing of witnesses, and the final address to the jury stressing the fact that the life of the accused was at stake – these were the features that made each murder trial unique, and different from most other trials. Yet we should also note that it was the lawyers and the judge, rather than accused, who were the focal point of the trial, and so it is not surprising that in this period we encounter barristers whose fame or notoriety goes beyond the confines of the legal profession. This is the age of the great barrister, who can win a case by the force of their performance, who learns instinctively what will convince a particular jury, and who can masterfully, if improbably, sum up the complexities of the case (often in presentations lasting more than a day).79

29However, this image of the professional forensic trial was increasingly cut off from the reality it purported to represent. Although, as I noted earlier, murder trials were becoming more publicly visible, this did not mean that a principle of publicity was operating in the organisation of the trial. As most lawyers were happy to point out, a trial (and even a murder trial) could be dull and difficult to follow, and few concessions were made to public understanding or entertainment.80 The moments of drama, such as they were, would punctuate lengthy passages of exposition and argument. In spite of the undoubted interest of the public in capital proceedings, few steps were taken to improve access to courtrooms. Indeed, when Central Criminal Court, the Old Bailey, was reconstructed in 1907, the Bar advised that public access to courtrooms should be restricted.81 Moreover, it is important to note that this was a period in which the overall importance of the trial within the criminal justice system was declining rapidly, in part because increasing numbers of cases were diverted into summary courts and the modern phenomenon of plea bargaining was developing, but also because the total number of trials was dropping. This “proper” trial, then, although dominating popular imagery of the criminal justice system, was one that was becoming a rarity, and ever more cut off from the reality of criminal justice.

30For this reason it is tempting to read a greater significance into this privileging of the murder trial. It was not just that it could be presented as the human drama of the criminal law – “to sober our thoughts and bring home to us the imperfection of mankind”82 – but it was also presented as a kind of fictional murder story in reverse, in which the tribunal would work back from the event, uncovering dues, destroying alternative explanations, building a convincing narrative.83 (Indeed it is striking that many of the editors were themselves writers of detective fiction). Yet just as the model Edwardian detective story took place in the closed environment of the country house, hermetically sealed against the outside world, so these accounts were becomingly increasingly self-contained. The judicial record is printed entire, to speak for itself, but in a curious way this return to the facts was part of a broader movement away from the realities of criminal justice. The reader is invited to occupy the position of the imaginary juror, to weigh the evidence and come to their own verdict on the basis of this complete presentation, perhaps reflecting all the while on the fragility of human nature.84 Yet the reader is also being asked to judge the fairness of the British system of criminal justice, that indulges the brutal and cunning murderer with a proper legal defence. The adversarial trial thus becomes a powerful symbol of criminal justice that is insulated against the realities of the system. It is a representation of an effectiveness means of discovering the truth, and of the overall significance of a certain type of trial for criminal justice.

Notable Trials and the Criminal Law

31It has been my argument here that these historical trial narratives have been central to construction of the broader cultural understanding and legitimisation of the adversarial criminal trial in this period. I have tried to suggest not only that the adversarial trial is something that has its own history, but also that we can reconstruct a history of the representation of the trial – and that the two are interrelated. That is to say that the trial is not only a certain type of spectacle or representation of the juridical – as a contest which seems to reinforce, without challenging, the image of a universal impartial legal order (not entirely in accordance with the historiography of the trial) – but also that the representation of the trial can organise the legitimisation of, and forms of participation in, juridical processes. In this process the trial has been invested with a certain significance that is best captured in the description of the rise of the notable trial. From the point of view of the trial narratives the broader context of the criminal law has been gradually written out – which is part of a shift in the overall economy of the criminal law.

32The history of the modern criminal law in England and Scotland has been be told as the development away from crimes against the political order to crimes against public order and the person.85 This has also been a process which has seen an increasing abstraction of the rules of criminal law from the context of their application. Indeed, the presentation of the murder trial as a model of criminal justice mirrors in a curious way the rise of homicide as the perfect crime for the modern criminal law.86 These are both processes that we can see in the development of the trial and its representation. There is a move from an image of the trial as a form of political institution, in which the prospective juror must be ready to participate in order to preserve political liberties, to one where the trial has become a kind of parlour game, in which the reader is invited either to second-guess the court, based on their understanding of character or evidence, or simply to wonder at the workings of the institution in the prosecution of evil. This is a move from an inclusive sense of “we, the jury” to one of “you, the jury”, where the reader is external to the spectacle. Thus, the representation of the notable trial at the end of the period, in the “golden age” of the trial, is organised around a very different kind of participation, and this must be central to any attempt to understand the place of the trials in the modern criminal justice system.