“The courtroom is underwater opera, aquarium for the deaf. Council flit and pause, mouthing like goldfish… Only the judge remains exotic, his scales strobing porphyrian2 above proceedings, or flashing from the mirth that no-one else is quite permitted, putting personality where it isn’t.”
“The Chamber and the Chamberlain”, poem by Philip Salom, 1989

1A recent research trip to Australia provided an opportunity to tour around Victoria and New South Wales stopping at many country towns. In those places, if one wants to visit a historic building, let’s say one built before 1900, the choice is between the police station or the court-house – most often combined in the one building. Before a church, or even ‘the Aussie pub’, came the construction of a building symbolic of the law, maintenance of order, the dominance of Anglo-society, and the pacification of a hostile environment/population. It may be that courthouses in, say, Paris and London, performed a similar function. For those persons belonging to the class that called upon the police for service, and who, under the auspices of the Watch Committees, controlled the police, the law courts were beacons of order, aid, and ownership. They reassured the Parisienne gentlemen that order was maintained in the boulevards and avenues ; and comforted the Englishman that London remained a safe place for him to stroll. Conversely, for those who felt themselves to be the object of police surveillance and class-based justice from the courts, the law courts may have represented the castles of an occupying power deep in their territory.

2Such assumptions cannot be empirically grounded whilst the intimate life of the Victorian and Edwardian courts, and the popular ‘meanings’ given to court-based justice, remain so imperfectly described in academic discourse. For, with a few notable exceptions3, the third arm of the criminal justice system (after policing and the carceral institutions) has received scant historical attention, and even less discussion that entertains a theoretical dimension.

3However, there are three available conceptual models which could be applied to the Victorian court, all borrowed from modern legal sociology : the court as a locus for communication of disciplinary norms ; the court as a theatre of control and absurdity ; and the court as a potential site for ‘carnivals’ of disorder. How well do these theories explain the Victorian and Edwardian situation ?

The ‘communicating’ court and expressive punishment

4For some modern legal theorists and criminologists, and indeed for many Victorians, the courtrooms could also be seen as centres of communication4, enabling coercive messages to pass from the state to the citizenry, between law-breakers and the arbiters of justice. This paper will examine that view by firstly portraying the means by which the state could have attempted to reinforce expressive punishments through the physical architecture of the courts, and the trial process (the superstructure of legal discipline), and by the demeanor of the presiding magistrates. It will then go on to outline why some conceived the courts as theatres of law and order5, before explaining the challenge posed to the power and majesty of judicial communications that arose when ‘carnivals of disorder’ erupted in the courtrooms. Finally, it will suggest that the ability of the twenty-first-century courts to communicate to a wide audience has declined because of changing leisure patterns in late modernity. This has ensured that the audience for ‘moral communications’ is now the readers of newspapers trial reports, and the message is therefore become more distant. In undertaking this task, the paper is, of course, asserting that the state conceptualized the courts in this way – as the means to communicate with the poor and disorderly. It may, therefore, be worth briefly reviewing the aims of the courts, and the uses of sentencing, through the writings of some prominent researchers.

5Although the first guiding principles of sentencing, published by Edward Cox in 1877, directed themselves purely to a utilitarian vision of deterrence, there is now a burgeoning body of literature on aims of punishment. What one might call the primary aims are usually described by legal theorists as : retribution ; deterrence ; protection of the general public ; and rehabilitation. Some sociologists, such as Durkheim and Mead, and more recently, Foucault, Garland and Feinberg6, have described two additional secondary aims : as a venting of public outrage ; and the expressive punishment of offenders. For example, Duff describes the trial as a form of moral criticism, and as a communicative enterprise7 which enables the authorities to didactically inform the sensibilities of the poor from a position of rhetorical power. In Victorian England, that power also found expression in physical form, in the architecture of the courts, and personification in the figure of the magistrate.

6The most obvious symbols of power are visual, and the Victorian court houses, like the prisons8 or the barracks, and, indeed all institutions (from banks and embassies to parliaments and town halls) desired to materialize their power in stone and marble. Most often placed centrally within cities and towns9, the courts were massive and grand, often invoking Greco-Roman architectural references to give them a classical air and to put the local population in awe. Some law courts, such as the Old Bailey in London, or the Palais de Justice in Paris, still stand as remarkable architectural splendours in their own right, and it is no surprise that they are sometimes described in quasi-religious terms, for some appeared to be ‘cathedrals’ of secular power10.

7The high priests that served within them were the magistrates. These professional men (stipendiaries) and unpaid volunteers (lay magistrates) were responsible for firstly, deciding guilt or innocence, and secondly for deciding an appropriate sentence for each of the convicted, both without the aid of a jury. They were also charged with ensuring that legal proceedings were conducted with due process of law, decorum, and keeping ‘the interests of justice’ paramount.

8In the contemporary media, the magistrates could receive short shrift from Hogarth, Fielding, or Dickens, and occasionally from social critics such as John Law11 :

“The Magistrate who sat on the Bench that morning had snow-white hair, a beaked nose, an irascible voice, his smile might have been described as benevolent, but his lips were firmly set, and he did not relax his features more than once in thirty minutes ; a fixed scowl was on his face, and he had an unpleasant way of asking abrupt questions when a witness became at all prolix.”
J. Law, In Darkest London : Captain Lobo, 1889

9However, by the late nineteenth-century, the newspapers generally treated with respect, if not reverence, the “moderate, sensible English gentleman who brought sound instincts of right and wrong to bear upon his interpretations of the law”12. Magistrates were, beyond question, viewed by most commentators as the embodiment of the State – firm, fair, merciful, but also, when necessary, vengeful. However, they were not merely ciphers for the bureaucracy, but were also pitched as examples of the British gentleman who could arbitrate the disputes of the ‘lower orders’ like an incorruptible and fair-minded cricket umpire. In other words, “gentleman more or less experienced in the way of the world, sufficiently well-educated, one who was willing to listen to the baffling problems of their work and life, and to advise them in their difficulties – a man available to the poor”13.

10Overladed with class-ridden assumptions that the poor led disorganized chaotic lives, and needed the advice of wise councils to guide them, statements like this demonstrate how the magistrate was conceived as a fatherly adviser to the labouring classes. Like a father, the magistrate had occasionally to play the disciplinarian ; like children, the poor were thought to need things ‘spelling out to them’ :

“You are a drunkard” said he in the course of his address. I must tell you that your brazen manner and bearing on the eight occasions you have been before me, have given me the lowest opinion of you. The case against you is dismissed, but you ought to lose your situation, and I hope you will. Drunken men like you are a pest and a nuisance. We can do without you. We don’t want you. You are an encumbrance, and a constant source of expense and danger. Go away, and take care you don’t make an appearance here again.” (original italics)
Liverpool Review, february 28^th 1885

11Speeches like the one above were usually delivered at the end of the trial proceedings. The trial process itself was a reassuringly simply one at first glance. Witnesses were examined and cross-examined by the defence and prosecuting advocates, the magistrate, if guilt had been proved, then awarded sentence. In doing so, the magistrate had to piece together what they considered to be the truth from the fractured and fragmented words of all parties, helped along by the overarching views of the solicitors. Then they decided how to achieve the sentencing aims described earlier, including the expressive and communicative functions of the process.

12Those expressive functions could not be carried out to great effect, however, without the presence of the wider audience who sat at the back of the courts in the public galleries. For, despite the condemnation of the offending behaviour of the convicted, the real audience for the moral messages were the, sometimes over a hundred, people sitting in the public galleries. Those galleries were often filled to capacity14, particularly if the trial involved local ‘celebrities’, or might involve entertaining accounts of neighbourhood disturbances, or, again, if it was a time of high unemployment where the court provided an appealing way of passing time15. Of course, by the nineteenth century, virtually the only judicial process which was open to view was the trial and sentencing. Although legal theorists of the time placed a great store on justice ‘being seen to be done’, the public galleries were not always approved of :

“This is the peculiar sort of atmosphere they (the non-descript loafers who are powerfully represented therein) create and are enveloped in. This is the peculiar sort of atmosphere generated by dirt which has won for a certain class the name of the ‘great unwashed’. They are here of both sexes and all ages, some of them with bandaged heads, and others with battered and plastered faces, and all bearing an aversion to soap and water, and with the air of people who habitually sleep in their clothes. These are the friends, witnesses, relations of those who are about to appear before Mr Raffles [the Magistrate] and are waiting their turn to appear in court… The atmosphere as well as the inhabitants of this locus is redolent of positive immorality, and in a sanitary point of view it is amazing that a plague does not eminate from it. The air is thick, and is composed of a villaneous compound of smells - of decomposed tobacco, whisky fumes, animal exhalations, rotten fruit, bits of mouldy bread, and many other things. The court is large enough for its purpose, but if the unwashed crowd outside in the hall was packed into it, it would simply be as bad a fever den as any in the lower quarters of Liverpool.”
The Porcupine, december 5^th 1868

13The part played by the public galleries features little in studies of the courts dating from the last quarter of the twentieth-century. Researchers have preferred to concentrate on the dialogical interactions between magistrate, solicitors and witnesses16. Nevertheless (and despite the idea of public ‘audience’ aiding their theories), sociologists have conceptualized of the courts as a kind of ‘theatre’ of justice.

The majesty of the law : process, theatre and drama

“The hero is the little persecuted victim of the state… ; the police the ugly sisters ; the men probation officers are the kind uncles, the women the fairies with magic powers. But the role of Principal Boy, Principal Girl, benevolent kindly Providence and Fairy Godmother are all bundled together and invariably played by their Worships. Their Worships have firm lips betrayed by kind eyes, they are shrewd, understanding, wise, tolerant and with luck witty and humorous.”
F. Giles, Open Court, 1964, p. 54-55
“Among the persons coming before us we shall see the professional thief, educated at the house of correction ; we shall also find the honest citizen arrested in the eddy of some surging mob, and standing, dazed with terror, in the dock as the accomplice of anarchists. We are certain to come across the heroines of love idylls and maidens of nihilistic fame, jealous lovers and husbands who have taken the law into their own hands, besmirched damsels and guilty women, charlatans and procurers, sharpers in broadcloth, and bullies in blue cotton jackets, unskillful Shylocks and speculators who have been a little too clever. Misery, vice, love, politics, finance, sometimes literature, all come to the courts for their closing scene, and extremes are ever meeting in this chamber of moral horrors. Society is going to reveal to us its monsters and its victims ; we shall see it naked in its ugliness and its deformity, often odious, but more often humorous. Crime has its grotesque as well as its tragic side, and no great drama is without its comic relief.”
H. Vonoven, “Criminal Courts-The Accused”, The Paris Law Courts, 1894, p. 138

14The theories of Garfinkle (1956), Emerson (1967), Blumberg (1967) and Carlen (1976), situated the ‘communicating court’ within a particular conceptual framework which emphasised the dramatic nature of judicial processes. It is a simple matter to find empirical evidence to support this theory. For example, one could turn to the entrance of the magistrates into the courtroom – through a private entrance, onto a raised stage from which they look down upon the court (and, symbolically, the accused). The physical organization of courts were fairly standard, with the solicitors directly facing the magistrates, the press and public galleries behind them, and the dock (where the prisoners stand) is placed to one side, but facing the magistrates to whom all communications were addressed17. ‘Their Worships’ receive the standing and silent attention of witnesses and court officials before proceedings are begun, and are at times, free to speak, or to demand the silence of others. Theatricality is further invoked when, seemingly in a series of acts, the witnesses’evidence is presented, with both prosecution and defence solicitors trying to imaginatively reconstruct their version of the disputed events into a plausible story. However, despite the accused and the complainant’s desire to be believed, and to press their cases as strenuously as possible, the primacy of the judicial ‘voice’ had to be kept paramount, and alternative voices or performances had to be suppressed18. As Carlen commented, “Dramaturgical disciplines is imposed on every person in the courtroom. Anyone whose interruptions threaten the court proceedings can be removed19”. If not removed, witnesses, as historical evidence shows, could be silenced :

“In one minute, if you interrupt me by saying another word I shall pass upon you a much more severe sentence than I intended to” This spoken with cutting emphasis and with the smiling lines of his face visibly hardening had the effect of reducing garrulous culprits, whether women or men, to terrified silence.”
Liverpool Review, february 28^th, 1885
“The president, in despair at her [the complainant’s] prolixity, after a few more attempts to bring her to the point, sends the witness back to her place, and reads out the declaration she made to the police. The public meanwhile receive with peals of laughter the unhappy huckstress, who is heart-broken at not having been able to tell her story.”
A.Clemenceau, ‘The court of correctional police’,
in Moriarty, The Paris Law Courts, 1894, p. 155

15The theatrical organization of court proceedings, together with the orderliness of due process, was acknowledged by one legal clerk reminiscencing about the 1920s, but he interpreted them as a set of archaic distancing practices which served both to remind the accused that this was a legitimate practice yea through the ages, but also that it was designed to depress excitement and emotional breakdowns or outbursts. In that way, so the clerks and magistrates hoped, the most sensational testimonial revelations could be registered dispassionately, and were rendered ‘monumentally dull’20. This, despite what one might expect, seems to have been borne out by Carlen’s study of the 1970s21. However, the newspaper court reports of 1880-1920, and the memoirs of justices and legal officers for the 1930s and 1940s, are replete with stories of uproar and chaos in the courts - indeed, when they were anything but ‘dull’22. This, no doubt, has much to do with the marketability of those type of publications. It has the unfortunate effect, however, of making the courts sound as though they held one long carnival of fun, the walls resounding with the laughter of appreciative audiences hearing the Wildean wit of the presiding judge23. This seems unlikely. Yet, it does appear that on many occasions the majesty of justice was traduced, and that the theatres of order deteriorated into a farce or a pantomime.

The world turned upside down : pantomime and contra-diction

(‘An Amazon of Wright Street’ is sentenced to prison for brawling) “Can’t your worship fine me ?” she inquires. “No you must go to prison… one month for being drunk and riotous in the court precincts.” “Oh, very well, sir ; I can do that on my head.” And, waving her arms at one of her friends in court, she cries, “Never mind, Bill ; keep up your heart, its only a month ; and with a loud shout she jumps down the dock-stairs.
(Reference - Liverpool Paper, Date)

16The two theories outlined so far have both accepted that the courts were empowered to communicate a moral message to both the defendant and (through the public galleries) to a wider audience. However, the paper will now question whether the Victorian and Edwardian courts found it possible to transmit in the uncontested manner that some have suggested. It will propose that the courts were at times important sites for the poor to challenge the power of the authorities, and that, at other times, the power to communicate moral messages was appropriated by the defendants themselves. Although he did not address courtroom performances, Presdee’s ‘carnivals of crime’ theories can, it is suggested, be applied to those situations the nineteenth-century courts sometimes found problematic.

17Presdee outlines the long decline of the customary world, particularly in the realm of leisure and cultural expression. He discusses, for example, the festivals and fairs of the poor being either criminalized (street gambling, street football), or appropriated by the middle classes (fire festivals, Mardi Gras) in the nineteenth-century. This served, he believes, both to pacify public spaces, and to impose another layer of control on the industrial working classes. The ‘crimping’ of the popular right to enjoy public leisure activities has previously been written about24 ; as has the longevity of pre-industrial customary practices into the ‘modern world’25. Presdee, primarlily talking about late modernity, believes the reaction to this historical process is psycho-dynamically charged to (almost mystically) produce eruptions of emotional display :

“Intimately connected with acts of transgression is the upturning or reversing of dominant authority structures. Carnival licenses transgression and thus openly defies or mocks the values of the hegemony. The transgressor is thereby put in a position of power as the carnival society temporarily replaces the dominant one… It is truly the ‘world turned upside down’, full of irrational, senseless, offensive behaviour - a time of disorder and transgression and of doing wrong in an ordered world.”
Presdee, Carnival of Crime, 2000, p. 39

18Historians of the eighteenth and nineteenth century might take issue with the connections drawn between the licencing of custom with a senseless riot of irrationality and fruitlessness. As Bushaway (1982) King (1989), E.P. Thompson (1991), and others have pointed out, popular customs which conflicted with the dictates of the market economy, often secured real benefits for their adherents, and were not merely symbolic gestures. When examining court disturbances, outbursts, and oppositional dialogues, it will be important not to forget that, for the proponents of disorder, they may have also brought real benefits. However, Presdee’s central argument that possibilities existed for the poor to ‘turn the world upside down’ is the one that will be taken up here.

19An appearance in court was a chance to refute allegations and secure freedom ; protect one’s reputation and prevent damaging rumours from gaining common currency ; or to attack rivals, former lovers, or competitors of one kind or another. As D’Cruze (1998) has shown, the reputation of (especially female) witnesses could be paraded through the courts, and successively re-negotiated with the evidence of each witness. The outcome of these public evaluations could result in ostracism from social contacts, friends or acquaintances ; and restrictions of opportunity on employability, or marriage prospects (particularly if the case involved sexual promiscuity). For, although the courts tended to be an insular and almost self-contained forum, the presence of the public meant that information about the case (and therefore the people involved in it) could leak through to the wider community. There were, therefore, considerable risks involved for those caught up in litigation. However, the courtroom also provided an opportunity to defend one’s honour, and to assert a counter dialogue in which to present a more favourable image of oneself to the world. In this way the communicative power of the court were appropriated by the witnesses themselves, and the magistrates became more marginal in the process. For example, many women came to court to allege brutality by their husbands, in the course of which the drunken and loutish spouse would be shown to have failed in his duties as a husband, perhaps even as a man. The magistrates’ refusal to take action on the allegations could not prevent them being aired in the courts. To take another example, in the Victorian County Courts26, where, unlike the criminal courts, women appeared as frequently as men, there were also frequent ‘prolix, at times histrionic, examinations, declamations and judgements’27. However, those courts did allow working-class women to challenge patriarchal assumptions about economic agency, whilst also claiming rights given to them by the rapidly disappearing moral economy28.

20Witnesses and defendants could also take over the court, or misdirect the aims of the trial, by insisting on relating a detailed and laborious account of what every person involved in an incident said or did. From a reading of nineteenth-century local newspapers, in cases involving large numbers of witnesses, particularly therefore neighbourhood fracas, defendants were often dismissed en masse. Confusing and incoherent witness statements could sometimes be tactically advantageous with the endless contestation of inconsequential details, allegations and counter-claims, appearing to have simply worn magistrates down29. This was especially true when magistrates were drawn into cross-examining the actions or motivations of witnesses themselves.

21However, perhaps the most significant challenge to the authority of the court to imprint moral communication onto the guilty, was the simple refusal of defendants to ‘hear’ or acknowledge the message. Aside from some unproven fears that criminals were attending court so as to pick up tips on legal argument and store them for use when they next found themselves in court30, contemporary commentators worried most about the public ignoring the authority of the courts. For example, The Porcupine, stated that :

“The men and women placed in the part of the court referred to are those who have escaped out of some terrible conflict that took place the previous night, at the north or south end of town growing out of drunken quarrels… In several parts of the court are placed the friends of either party of the factions, who listen to and look at what is going forward with an intensity of interest which the observer may see depicted in their faces ; and when the party who ‘wins’ the day gets out into the lobby it is no infrequent thing to hear a deafening cheer raised in recognition of success. Then there is the steeplechase made for the nearest public house… with a renewal of hostilities within the precincts of the court.”
The Porcupine, december 5^th 1868, p. 344
“If ever there was a small pandemonium on earth, the lobby of our Police Courts merits that distinction ; why, Babel was not a cock-fight when compared to it. Children screaming, women making them worse by beating them to keep them quiet ! – the women themselves are abusing each other in tones and fancy language that would make a fortune for (the) compiler of a slang dictionary.”
The Liverpool Review, november 7^th, 1868, p. 305.

22It is no surprise that the newspapers were anxious, for if the poor could not govern their behaviour in the heartland of legal authority – the court and its environs – then how could the domestication of the problematic populations proceed ? Perhaps those who had appeared in the courts viewed it as a general part of life, and the theatricality and majesty escaped them. If so, then the communicative power of the courts was dissipated and lost. Unfortunately, neither modern nor historical researchers have carried out a detailed study of how the convicted viewed the court process. Certainly the legal authorities appear to have believed that the courts were still potent communicators, but there is little evidence to prove that the messages were heard, accepted, internalized. Indeed, much of the historical evidence leads to a contrary opinion.

23Having reviewed the theories of both Carlen and Presdee, it seems that both could be accommodated, if the outbursts in court were integral parts of the ‘performance’ in which defendant registered themselves as rough, unfit for public appearance, unruly, uncivilized –and thus justifying the state’s action in bringing them to court in the first place. This seems unlikely given the sheer volume of trial reports where it is clear that the court has genuinely struggled to maintain order ; and in a significant number of cases, where the dignity of the court and the majesty of the law have been cast askew by the activities of witnesses. If licensing disorder was a deliberate strategy adopted by the authorities, it seemed at best a risky course of action. Much more likely is that there was a tension between controlling the courts sufficiently in order to impose meaningful punishments, and allowing all of the witnesses to present their evidence in their own words without excessive guiding or curtailment from the magistrates.

24What eased that tension was the gradual withdrawal of general public participation in the trial process. Until the 1930s and 1940s, the court could still attract a substantial audience looking for entertainment. By the 1960s their numbers had dwindled to insignificance. In the twenty-first century the public galleries in magistrates’courts are virtually empty although the Crown Courts, which try more serious cases, have more visitors, and murder trials can still draw large numbers of spectators.

25How can the decline in attendance be explained ? First, it is clear that, for many Victorians and Edwardians, a visit to the courts was as entertaining as a trip to the zoo, or the theatre31. For example one court clerk remembered a woman in the 1920s repeatedly questioned about her menstrual period for no apparent reason :

“A glance at the crowd at the back of court showed that our esteemed Public, the Public of the Open Court, the Public who had come in to see Justice being done, were enjoying themselves immensely. Then all of a sudden the show came to an end.” (The witness had fainted).
Giles, Open Court, 1964, p. 117

26However, the courts’appeal as a venue of entertainment declined rapidly in the face of the growth of easily obtainable alternative leisure activities – radio, then television, and now video and computer games, for example. Second, and as a mutually reinforcing trend, the newspapers became steadily more interested in reporting trials in greater detail as the second half of the twentieth-century progressed32. Local reporters up and down the land have now replaced the large number of people who visited the courts in person. Even so, as a custom, a historical relic, or even still to enable justice to be seen to be done, magistrates today will still announce decisions when only they and the solicitors are in attendance (even when the accused has not attended court). The communications of the courts now sometimes reverberate around virtually deserted courtrooms33.