Domestic and international trials, 1700–2000 Domestic and international trials, 1700–2000 The trial in history, volume II edited by R. A. Melikan Manchester University Press Manchester and New York distributed exclusively in the USA by Palgrave Copyright © Manchester University Press 2003 While copyright in the volume as a whole is vested in Manchester University Press, copyright in individual chapters belongs to their respective authors, and no chapter may be reproduced wholly or in part without the express permission in writing of both author and publisher. Published by Manchester University Press Oxford Road, Manchester M13 9NR, UK and Room 400, 175 Fifth Avenue, New York, NY 10010, USA www.manchesteruniversitypress.co.uk Distributed exclusively in the USA by Palgrave, 175 Fifth Avenue, New York, NY 10010, USA Distributed exclusively in Canada by UBC Press, University of British Columbia, 2029 West Mall, Vancouver, BC, Canada V6T 1Z2 British Library Cataloguing-in-Publication Data A catalogue record for this book is available from the British Library Library of Congress Cataloging-in-Publication Data applied for ISBN 0 7190 6486 4 hardback First published 2003 1009080706050403 10987654321 Typeset in Photina by Graphicraft Limited, Hong Kong Printed in Great Britain by Bookcraft (Bath) Ltd, Midsomer Norton iv Contents List of figures and tables page vi List of contributors vii Acknowledgements ix List of legal abbreviations x Introduction R. A. Melikan 1 1 Evidence law and the evidentiary objection: a view from the British Trials collection T. P. Gallanis 12 2 Sense and sensibility: fateful splitting in the Victorian insanity trial Joel Peter Eigen 21 3 Trials of character: the use of character evidence in Victorian sodomy trials H. G. Cocks 36 4 Pains and penalties procedure: how the House of Lords ‘tried’ Queen Caroline R. A. Melikan 54 5 The invention of trials in camera in security cases A. W. Brian Simpson 76 6 War crimes trials before international tribunals: legality and legitimacy Dominic McGoldrick 107 7 An embarrassing necessity: the Tokyo trial of Japanese leaders, 1946–48 Peter Lowe 137 8 The trial of Maurice Papon for crimes against humanity and the concept of bureaucratic crime Robert Boyce 157 9 The trial of Slobodan Milosevic: a twenty-first century trial? Dominic McGoldrick 179 Index 195 v List of figures and tables Figures 1.1 Objections to oral evidence in civil cases, 1745–1820 page 13 1.2 Length of pamphlet accounts of civil cases, 1745–1820 14 3.1 Indictments for sodomy, indecent assault, and other homosexual offences presented at the Old Bailey, 1750–1830 38 Tables 1.1 Lawyers raising objections to oral evidence in civil cases, 1765–1820 16 4.1 Non-attendance on the first day of the Queen’s trial 59 4.2 Attendance in the House of Lords, 1815–25 60 vi List of contributors Robert Boyce is a Senior Lecturer in International History at the London School of Economics and Political Science. He has written or edited four books including French Foreign and Defence Policy, 1918–1940: the Decline and Fall of a Great Power (Routledge, 1998). H. G. Cocks is a Lecturer in History at Birkbeck College. Joel Peter Eigen is the Charles A. Dana Professor of Sociology at Franklin and Marshall College in Lancaster, Pennsylvania. He is the author of Witnessing Insanity: Madness and Mad-Doctors in the English Court (Yale University Press, 1995) and is currently completing a manuscript, Missing Persons: Conscious- ness and Criminality in the Victorian Courtroom, under contract to The Johns Hopkins University Press. T. P. Gallanis is an Associate Professor of Law and History at Ohio State University and, during 2000–1, was Mellon Fellow in Historical Studies at the Institute for Advanced Study, Princeton. His essay ‘The rise of modern evidence law’, Iowa Law Review, 84: 3 (1999), 499–560, was awarded the Selden Society’s David Yale Prize. Peter Lowe is a Reader in History at the University of Manchester. He is the author of Containing the Cold War in East Asia (Manchester University Press, 1997) and The Korean War (Macmillan, 2000), and he is currently prepar- ing a study of British policy in South-East Asia after 1945. Dominic McGoldrick is Professor of Public International Law and Director of the International and European Law Unit, Liverpool Law School, Univer- sity of Liverpool. He has written books on the Human Rights Committee and International Relations Law of the European Union. Among his recent works are articles on the Permanent International Criminal Court, racist and hate speech, human rights in the European Union, accommodating national identity in the Former Yugoslavia, the United Kingdom’s Human Rights Act 1998, and state responsibility. vii List of contributors R. A. Melikan is a Fellow of St Catharine’s College, Cambridge. She is the author of John Scott, Lord Eldon (1751–1838): the Duty of Loyalty (Cam- bridge University Press, 1999), and has also published articles dealing with the intersection of law and politics in late Georgian England. A. W. Brian Simpson is the Charles F. and Edith J. Clyne Professor of Law at the University of Michigan. His recent publications include Human Rights and the End of Empire. Britain and the Genesis of the European Convention (Oxford University Press, 2001). viii Acknowledgements Most of the essays in this volume were presented at a conference on ‘The Trial in History’ held in Manchester on 17–19 September 1999. This conference was organised by the Department of History in the University of Manchester in association with the Faculty (now the School) of Law, and with the advice and help of members of the Wellcome Unit for the History of Medicine and of the Departments of Philosophy and Social Anthropology. Further financial contributions in support of the conference were made by the British Academy Humanities Research Board, the University of Manchester, Messrs Eversheds, Solicitors of Manchester, and the J. K. Hyde Centre for Late Medieval and Renaissance Studies. A companion volume, Judicial tribunals in England and Europe, 1200–1700, edited by Maureen Mulholland and Brian Pullan of the University of Manchester, is also being published by Manchester University Press. The editors of both volumes are deeply grateful to Dr Bill Smith, the conference administrator, for his efficiency and good humour. As the editor of the present volume, I would like to add my thanks to Professor J. H. Baker for the cover print, to Dr Quentin Stafford-Fraser for technical and other assistance, and to Professor Brian Pullan, for his support, friendship, and dedication to this project. ix List of legal abbreviations A.C. Law Reports, Appeal Cases All E.R. All England Law Reports Cox C.C. Cox’s Criminal Law Cases E.C.H.R. European Court of Human Rights I.C.C. International Criminal Court I.C.J. Reports International Court of Justice I.L.M. International Legal Materials I.L.R. International Law Reports L.J.K.B. Law Journal, King’s Bench L.J.R. Law Journal Reports L.T.R. Law Times Reports S.I. Statutory Instrument S.T. State Trials T.L.R. Times Law Reports W.L.R. Weekly Law Reports x Introduction Introduction R. A. Melikan I have been asked, in the context of this volume, to explain how one ought to write a history of the trial. Like a lawyer, rather than answering this question, I pose a counter-question and attempt to answer it instead – do you mean a history of a trial or a history of trials? The distinction is not, I hope, a pedantic one, as the former seems to focus upon a particular event and the latter upon a process. If we examine a trial, we are interested in the experiences, in so far as they can be understood, of the various participants – the parties, judge, jury, witnesses, and counsel. We want to know the facts – not only the basis for the dispute, but also the reason why it is being litigated, which may not be the same thing. We want to know the principles of law that led to the decision. Were they misapplied? Did a new principle emerge? Did the judge and/or jury simply ignore the law and do as they pleased? And we want to know the consequences of this trial, for the individual parties, certainly, but also for the subsequent development of the law, and for its political and social impact. However, if we examine trials, while we are still concerned with participants, facts, law, and outcomes, we want to know how all of these components func- tioned over time or, perhaps because that task is so large, we may concentrate on the developments of one or two components. To take a few examples from criminal litigation, which for many people is synonymous with trials, what effect did public prosecutors, the availability of capital punishment, or the law of contempt of court have upon the conduct of English criminal trials in the nineteenth century? Is either method of analysis – that of a trial or of trials – preferable? No, although the state of the historical record and individual scholarly tempera- ment may militate in favour of one or the other. One need only mention Brian Simpson’s Leading Cases in the Common Law and John Langbein’s work on English criminal trials to appreciate the value of either perspective.1 What these and other successful examples of trial/trials scholarship have in com- mon is their wide range of sources, and this brings me to a second matter for 1 R. A. Melikan consideration – whether historical scholarship on individual or groups of trials ought to be written from within or without.