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You have been accused on the behalf of the / People of England of high Treason, and other high Crimes; the Court have determined / that you ought to answer the same. [$ The King. $] I will answer the same so soon / as I know by what Authority you do this. [$ Lord President. $] If this be all that you will say, then, Gentlemen, you that brought the / Prisoner hither, take charge of him back again.
Our decision to define segments for tagging in this way is motivated by the belief that changes to any one (contextual) variable can potentially affect the social meaning of the interaction (cf. Hymes 1972; Levinson 1983: 22). Consequently, we want to capture the varying degrees of [ir]relevance of particular contextual features to particular utterances in different situations. .. Tag fields and values: The historical context The construction of relevant sociopragmatic categories and the application of those categories to the data pose a major challenge to this type of historical
Chapter 4. A systematic approach to context identification and analysis
work, not least because modern sociological categories are not applicable, and the possibility of asking speakers is not available! These factors alone go some way towards explaining why so little work has been done on sociopragmatic annotation in historical texts.69 This is not to say that no historical sociopragmatic work has taken place. The work of Terttu Nevalainen and Helena Raumolin-Brunberg (1996) is of particular importance here, not least because it demonstrates a recent development in corpus-based historical linguistics – an interface with sociolinguistics (Archer & Culpeper 2003: 42). Nevalainen and Raumolin-Brunberg (1996) draw from their Corpus of Early English Correspondence (henceforth CEEC), which spans the period 1417–1681, in order to correlate the sociological features of letter writers (e.g. their gender or social status) with particular lexical or grammatical features. However, as they acknowledge, due to widespread illiteracy, only the highest ranks of society are well represented in the CEEC, and women’s letters form no more than one fifth. Also, because their data is not dynamic face-to-face interaction, they were able to place contextual information for whole texts in a separate database. Our challenge is that within the dialogue of a text (drama texts, in particular) the contextual variables are in a continual state of flux. The intensive annotation required to track these variables explains why our total corpus is much smaller than the CEEC (245,091 words compared to 2.7 million words respectively). Like Raumolin-Brunberg (1996: 11), we recognise that the historical context is not always given the prominence that it deserves within historical linguistics. Consequently, we have engaged in socio-historical research, so that our fields and values more accurately reflect the society of Early Modern England. .. Overview of fields and values Figure 12 below displays the fields and values that we utilise. For reasons of space, only the speaker is represented (however, the parallel set of fields and values for addressees can be easily identified, by substituting ‘sp’ for ‘ad’ in the tag element): Section 4.3.4 following will outline the rationale behind the above fields and their related values. I will begin with the relatively static values, and end with ‘role’, which tends to be much more dynamic.
Questions and Answers in the English Courtroom (1640–1760)
Field Feature marked
Sign
1st 2nd 3rd 4th
speaker= spid= spsex= sprole1=
5th
6th
Speaker(s) Speaker ID tag Gender of speaker Role of speaker
Possible values
s (single speaker), m (multiple speakers) e.g. S3tmoder001 m (male), f (female) n (neither) Activity role [optional] e.g. w (witness), d (defendant), sprole2= Kinship role [optional]e.g. e (husband), g (wife), f (father), sprole3= Social role [optional] e.g. s (servant), t (master/mistress), sprole4= Dramatic role [optional] (seducer), (seduced), (fool), (villain) Status\social rank of speaker spstatus= 0 (nobility), 1 (gentry), 2 (professions), 3 (other middling groups), 4 (ordinary commoners), 5 (lowest groups) Age of speaker spage= 6 (young), 8 (adult), 9 (older adult)
Note that there is also a set of generic values, to be utilised across the various fields when appropriate. They include X = not known/not applicable, P = problematic, and A = assumed (e.g. when a participant assumes characteristics different from his/her ‘actual’ characteristics).
Figure 12. Tag fields and values
.. A description of the fields and their values The speaker/addressee identification categories distinguish single speakers and/or addressees from multiple speakers and/or addressees. Each participant in the corpus (whether speaker or hearer) also receives a unique code, by which we can identify him/her. These ID tags consist of three elements: An initial code that (i) identifies the corpus (e.g. ‘s’[= SPC]), (ii) identifies the sub-period in which the participant occurs (e.g. ‘3’ relates to the period 1640– 1679), and (iii) distinguishes text type (e.g. ‘t’ for trials, and ‘d’ for drama) A second code identifying the text in which that participant is involved (e.g. moder) A three-figure number identifying a specific participant (e.g. 001)
Thus, the first participant to appear in the Trial of Mary Moders (1663) is given the ID tag, s3tmoder001. The ‘status’ field gives an indication of a participant’s social status. The categories we formed (see below) are based on rank, estate or sort, in order to reflect (i) the pre-industrialised nature of Early Modern English society, and (ii) the way in which Early Modern English contemporaries spoke about status
Chapter 4. A systematic approach to context identification and analysis
(Holmes 1982; Wrightson 1982, 1991; Sharpe 1987; Nevalainen & RaumolinBrunberg 1996). Gregory King (1695), for example, devised a hierarchy based upon ‘Ranks, Degrees, Titles and Qualifications’ as part of his famous attempt to estimate the state of national resources as they had stood in the year 1688. It followed the gradations of gentility from the peerage down to the level of plain gentleman much as his near contemporaries, Harrison (1577) and Wilson (1600), had done – i.e. ‘titular nobility, knights, esquires’ (Harrison 1577. Quoted in Wrightson 1991: 19) – but, thereafter, effectively became a ‘ladder of occupations’, i.e. Gentry, Persons of Office (merchants, lawyers and clergymen), Freeholders, Farmers, ‘Persons in Sciences and Liberal Arts’, Shopkeepers and Tradesmen, Artisans and Officers in the Forces, Common Seamen, ‘Labouring People and Outservants’, Cottagers and Paupers, Common Soldiers and Vagrants (capitals as the original). Interestingly, aside from inevitable variation in detail, disagreements over the exact positions of certain groups, and changes within the make-up of the social order over the period covered by our corpus, a ‘broad pattern of society’ emerges ‘from Harrison to King’ (Wrightson 1991: 22). That said, ‘distinctions at the lower end of the scale’ tended to be minimised, to the point that the middling and lower groups in society were (and often still are) lumped together in a ‘non-gentry’ category. This is not problematic for Nevalainen (1996: 58), who uses illiteracy as a determining factor when deciding the make-up of the CEEC’s ‘non-gentry’ category (i.e. anyone below ‘Merchant’ or ‘Professional’ status). However, as the ‘nongentry’ or ‘common people’ feature regularly within our data, we have opted for a six-way categorisation that allows for a more detailed classification of this group. The definitions are determined by a number of criteria including title, ownership, income (economic status) and employer/employee status: Nobility [status=“0”]: Royalty, and those with particular inherited or conferred ‘titles’ that allow them to sit in the House of Lords, including the Lords ‘spiritual’. Prototypical examples – Duke, Marquess, Earl, Viscount, Baron, Archbishop, Bishop. Gentry [status=“1”]: Upper Clergy and non-hereditary knights not able to sit in the House of Lords, people entitled to carry arms and/or recognized as having the (legitimate) capacity to govern (Wrightson 1991: 38), and those able to append the title esquire (Esq.) to their name (legitimately). Likely to be of a certain income (i.e. substantially above £2,000 per annum, depending on year70 ) (see Hunt 1996: 16). Prototypical examples – Sir (+first name/surname), Knight, Major General. Professional [status=“2”]: Those involved in skilled tertiary-sector occupa-
Questions and Answers in the English Courtroom (1640–1760)
tions, whose focus is upon ‘service’ (Corfield 1995: 25), including civil servants, teachers, army and naval officers and members of the ‘learned professions’ or, to use Addison’s (1711) phrase, the ‘three great professions’ of Law, Medicine and the Church. Prototypical examples – clergymen, lawyers, medical practitioners, school teachers, military and naval officers. Other middling groups [status=“3”]: Those directly involved in trade and commerce (see Hunt 1996: 19), whose focus is upon production or distribution as opposed to service (see Corfield 1995: 25) and whose income is likely to have been between £50 and £2,000 (see Hunt 1996: 15).71 They include manufacturers, wholesalers, retailers, merchants, money-lenders, skilled craftsmen, and financiers. Prototypical examples – merchant, shopkeeper, carpenter, shipbuilder, warehouseman, cloth dealer. Ordinary commoners [status=“4”]: Those who laboured on someone else’s materials or in someone else’s fields, household or manufactory, and whose income is likely to have been less than £50 per annum (see Hunt 1996: 21, 15). Prototypical examples – ‘labouring folk’, yeomen, poor husbandmen, wage labourers, apprentices to the non-professional occupations. Lowest groups [status=“5”]: Common seamen, servants, cottagers and paupers, the unemployed, common soldiers and vagrants. Prototypical examples – servant, vagrant.
As exact ages are rarely provided in historical texts, the age field gives a general indication of a participant’s age rather than a specific age. As a consequence, we use general descriptive labels that roughly correspond to a numerical age range. In fact, this approach reflects the socio-historical situation. The fact that some individuals in our data were vague about their own ages is consistent with the idea that conceptions of age were not based on an exact numerical figure, but on factors such as physical appearance and seniority in a profession (e.g. a judge was highly likely to be 45+). Our categories are: Young [age=“6”]: Notional age range 0–14; people described as ‘children’, ‘young boy/girl’, etc. Adult [age=“8”]: Notional age range 15–44; people described as ‘apprentice’, ‘young wife’, etc. Older Adult [age=“9”]: Notional age range 45+; people described as ‘old’, ‘judge’, etc.
The age ranges are designed so as to correspond broadly to significant milestones in the life of the average Early Modern English contemporary, for example: (i) the age of first marriage (approximately mid-20s) (Sharpe 1987: 40; Coward 1988: 20; Wrightson 1982), (ii) the commencement and completion of
Chapter 4. A systematic approach to context identification and analysis
apprenticeships (O’Day 2000: 20–24; Holmes 1982), (iii) significant advancement within a profession (e.g. judges) (Foss 1870; Simpson 1984), and (iv) the average expectation of life at birth (upper-30s to early 40s, depending on the period) (Sharpe 1987: 38; Coward 1988). The reader should be aware that the average life expectancy rose as contemporaries passed certain milestones (e.g. infancy, childhood, etc.). This can be seen in some of the ages of the senior lawyers (especially judges). For example, in one trial – that of Elizabeth Cellier in 1680 – the ages of the Lord Chief Justice, the King’s Sergeant and the Attorney General were 57, 78, and 53 years respectively. One consequence of this low average life expectancy but high standard deviation is that I prefer to use the term ‘older adult’ as opposed to ‘old adult’ for the final category (cf. Archer & Culpeper 2003: 49. See also 4.3.5 below). The role field captures a more dynamic – and consequently more pragmatic – aspect of the interaction. Some roles (e.g. kinship roles) are relatively static, but for most types of role it is quite normal to switch from role to role, depending on the context. Clearly, this kind of information cannot be put in the header. Consequently, there are four fields in our annotation scheme capturing the various roles of participants at the level of speaker/hearer interaction. These are as follows:72 Activity role [role1=]: A participant’s role within a particular activity type (prototypical examples – ‘witness’, ‘defendant’, ‘customer’). Kinship role [role2=]: Any blood relation or relation by law between the participant and his\her interlocutor (prototypical examples – ‘father’, ‘daughter’, ‘mother’, ‘son’, ‘father-in-law’). Social role [role3=]: A participant’s occupational or familiar role (prototypical examples – ‘surgeon’, ‘baker’, ‘friend’). Dramatic role [role4=]: Those roles that are dramatic stereotypes (prototypical examples – ‘fool’, ‘villain’, ‘seducer’).
Except for the kinship role field, these fields have a functional basis: a participant’s function in an activity, a participant’s social function, and a participant’s function in relation to the plot. Some activity roles and social roles overlap. A ‘judge’ is a particular salaried occupational role, but also denotes a specific activity role in the courtroom. Likewise, a ‘domestic servant’ is a particular salaried occupational role, but also denotes a specific activity role in the domestic household. However, these roles can be separated: a ‘domestic servant’ who appears in the courtroom as a ‘witness’ would require different values in the social role and activity role fields. Multiple roles are a frequent occurrence in the drama sub-section especially, and our scheme is such that more than
Questions and Answers in the English Courtroom (1640–1760)
Activity roles
Kinship roles
Social roles
CR D IP J K L LF M N
CRYER E Wife – – DEFENDANT G HUSBAND INJURED/OFFENDED PARTY JUDGE/MAGISTRATE KINGS COUNSEL JURY FOREMAN OF THE JURY EXAMINER FOR DEFENCE COURT OFFICIAL (clerk of the peace, court recorder, etc.) NG GUARD O NON-SPECIFIC EXAMINER ON ONLOOKERS (people, crowds, observers . . . etc.) RE RECORDER SA SERGEANT AT ARMS SL SERGEANT AL LAW SR SERGEANT ROLL U PLAINTIFF V EXAMINER FOR THE PROSECUTION W WITNESS
Figure 13. Roles and their values (trial section of the SPC)
one role field may be identified for any given interaction. The dramatic role field has been included to accommodate the dynamics of our play-text data (see Shiina forthcoming for an illustration of the ways in which the different role fields can enhance our understanding of drama texts). Figure 13 provides a breakdown of the ‘roles’ evidenced in the trial section of the SPC (for a list of roles evidenced in the drama texts, see Shiina forthcoming). .. Implementation issues Applying social categories. Applying social categories is not without its problems. Take the status category, for example. Although I have intimated that there was general agreement regarding the broad pattern of society, contemporaries nevertheless disagreed, on occasion, about whether ‘all members of the learned professions were gentlemen or not’ (my emphasis) or whether only ‘leading merchants and urban plutocrats be assimilated to the gentry’ (Wrightson 1991: 43). This highlights four important (and inter-related) considerations: Firstly, there was (i) a reformulation of the concept of ‘gentlemen’
Chapter 4. A systematic approach to context identification and analysis
throughout our period, from those able to carry arms to those with the capacity to govern (see Wrightson 1991: 38), and (ii) a transition from ‘estate to profession’ that was well underway by 1640, the starting point for the SPC (the three learned professions, especially, becoming occupational groups that claimed status in society on the basis of the expert services it offered the commonwealth – see O’Day 1987: 28, 30–31). In these particular cases, we have treated the gentry and professionals as separate social groups (unless we have evidence to the contrary). Secondly, there was a close link between rank and income in the Early Modern period. That said, the former was ‘never purely a function of income’ (Hunt 1996: 15), which may help to explain why contemporaries also debated over the less affluent groups within society (i.e. whether lesser yeomen should be distinguished from husbandmen, and husbandmen from cottagers and labourers). In these particular cases, husbandmen have been grouped with yeoman. Thirdly, there were distinctions of rank within the various groups. Consider the professions, for example. The distinctions between the latter were brought about (and, in many ways, perpetuated) by the division of many professions into tiers, such as the upper and lower clergy and the barristers and solicitors (or attorneys). Importantly, some argue that such distinctions caused a social gulf, with the higher branches being the preserve of the gentry only (Carr-Saunders & Wilson 1933; Brooks 1986: 243; Miles 1982: 50–56). But recent research suggests that gentlemen and non-gentlemen alike made up the workforce of many of the highest tiers of the professions, leading Prest (1987: 9) to conclude that: While learned physicians, counselors and advocates at law may have claimed the right to bear a coat of arms and the courtesy rank of esquire by virtue of their calling during our period, the majority certainly would not have been entitled to such marks of status on hereditary grounds alone.
In other words, only a minority of professionals could make any claim to gentle blood (Duman 1981; Lemmings 1986; Prest 1987). Indeed, Prest (1987: 9) suggests that the proportion of barristers with landed gentry backgrounds declined steadily from an outside maximum of 50% at the very most in the half-century before 1640 to around a quarter by the later 18th century. As for the civil lawyers, fewer than half of the elite group of advocates admitted to the practice in the Court of the Arches between 1600 and 1749 were the sons of peers, baronets, knights, esquires or gentlemen, the balance being mainly from clerical, legal, office-holding or mercantile backgrounds (Prest 1987: 9). Nevertheless, in practice, the professions and commerce offered many who were not ‘gentlemen born’ a road to gentility (Raumolin-Brunberg 1996: 27), thanks to
Questions and Answers in the English Courtroom (1640–1760)
the reformulation of ‘gentleman’ and the continuing transition from ‘estate to profession’, highlighted previously. This leads us to our fourth consideration – the fluidity among the different groupings. As previously intimated, there was an especial fluidity amongst the gentry, professions and other middling groups. However, this does not mean that fluidity – or social mobility – was always upwards. Indeed, the feudal system was hierarchical in structure, which may help to explain why the more informal terminology of social description (e.g. ‘sorts’) drew on a vocabulary of ‘radical differentiation, which was both economic and cultural, cleaving society into the haves and havenots, the respected and the contemned’ [sic], e.g. ‘better’, ‘meaner’, ‘vulgar’, ‘common’ (Wrightson 1991: 46–47). Of course, our scheme could have made finer-grained distinctions between some of the groupings (our reasons for not doing so are discussed below), but the important general point here is that people will always have different perspectives on the nature of at least some social groups, and that social categorisation schemes will iron out those perspectives.
Delicacy of categorisation. A second implementation issue concerns how delicate a categorisation scheme should be. There are advantages for adopting a delicate scheme. It should lead to a more accurate description of the data, for example. But there are also disadvantages. Firstly, a scheme that is overly delicate is likely to result in there not being sufficient evidence to apply a particular category, and, consequently, to obtain statistically meaningful results for that category. Secondly, the categories may be potentially more problematic to implement. Thirdly, there is likely to be more scope for error (especially when inputting the annotation tags manually, as we do). Consequently, there has to be a trade-off between usefulness and ease or consistency of coding. We have designed our system so that we can make general distinctions regarding a participant’s status, role and age, for example, whilst allowing for the possibility of expanding or, indeed, collapsing the categories as the need arises (we may decide that it is more fruitful statistically speaking to compare the highest status group with the two lowest status groups, for example). The age field provides a useful example of amendments we have already made to our system, because our original categories were too delicate. The observant reader may have noticed that our tagging values for age are “6”, “8” and “9”, missing out “7”. The middle age range, 15–44, used to be split, so that it included the two age ranges 15–25 (‘younger adult’) and 26–44 (‘mid-adult’). The first age range carried the tagging value “7” and the second “8”. However, having tagged a number of texts, it became clear that there was a lack of evidence to enable us to accurately place individuals in either of the two cat-
Chapter 4. A systematic approach to context identification and analysis
egories. Thus, the age field for many adults received the value “X”, indicating ‘not known’. Consequently, we collapsed our two middle categories into one (carrying the value “8”).
Sources of information. In implementing our annotation scheme, we utilised three sources of information: Secondary: the trial proceedings (which make up half of the SPC) concern real people, and often very famous people. Thus, we were able to use information in contemporary accounts and modern commentaries. Textual: This included (1) speaker-identification labels (e.g. ‘Old man’, ‘Surgeon’, ‘Maid’, ‘Vagrant’), (2) participant comments (e.g. describing the age or income of another person and/or self-description), (3) authorial/editorial comments (e.g. the character list at the beginning of a play text), and (4) specific terms of address, either occupational terms (e.g. ‘Doctor’, ‘Lawyer’) or high-status titles (e.g. ‘Sir X’, ‘Lord X’). Inferential: This included (1) networks of interaction (i.e. a participant who habitually keeps company with a particular social group is likely to be of that social group), (2) patterns of behaviour (e.g. a participant offering to pay for something in a shop is likely to be a customer).
If a piece of evidence was considered to be weak (e.g. a participant who keeps company with a particular social group the majority of the time, but also mixes with other social groups), then a second piece of evidence would be required. Clearly, we avoided linguistic evidence contained within a participant’s speech, because of the danger of circularity. For example, we could not use the whole array of address terms, a theoretically rich source of social information, because (even if we could be sure about the social value of a particular term of address) that is one of the areas of usage we wish to investigate. We allowed ourselves two areas of exception here, occupational terms and high-status titles. In both these areas, the meanings of the terms are relatively unambiguous (e.g. ‘Lord Mohun’ is a lord, ‘Doctor Jones’ is a doctor), and have remained relatively unchanged over time.73 .. Benefits of new approach As the drama and trial data in the SPC contain a mix of people from all social groupings (upper, middle and lower), we have devised a categorisation system based on socio-historical research that accounts for the full spectrum of Early Modern English society. An added advantage of this social representativeness is that it makes possible research that, because of a lack of data (especially within
Questions and Answers in the English Courtroom (1640–1760)
similar historical corpora such as the CEEC), has hitherto been problematical (cf. Raumolin-Brunberg 1996: 17–18). Moreover, our annotation scheme incorporates not only classic sociolinguistic variables, such as status and age, but also role, a much more dynamic and pragmatic aspect of interaction. Perhaps the most important aspect of our scheme – and one that makes significant pragmatic research possible – is that it captures the utterance-by-utterance interaction between speakers and their addressees. This is reflected in the segmentation of the data in terms of speaker/addressee-defined units of utterance as opposed to turns (see example from the Trial of King Charles, 4.3.2). Consequently, we can investigate how combinations of speaker characteristics interact with combinations of addressee characteristics, and also deal with multi-party talk. In addition, our scheme has been designed in such a way that it can be expanded, by simply adding more fields into the element. In the following section, I will describe the fields that I have added to the regular SPC fields highlighted above so that I can explain the use of questions and answers (and other speech acts) within the trial section of the SPC.
. Annotation scheme for questions and answers As Chapters 2 and 3 make clear, the function of a question (in a courtroom, at least) does not always lie within itself or the answer it receives. Indeed, it might only be understandable once its juxtaposition with what has gone before has been taken into account. I have therefore developed a three-way classification of questions and answers according to their ‘interactional intent’, their ‘force’, and, where applicable, their ‘(grammatical) form’. I have provided a visual representation of the (relationship between the) first two fields below (see Figure 14). However, as with most visual representations, the diagram is a simplification. My categories are much more dynamic, having ‘fuzzy edges’ (hence, the hint of overlap amongst some of the definitions), and also cyclic in nature. Sections 4.4.1–4.4.3 describe each of the three fields in detail. .. The interactional intent field The interactional intent field [‘stfunc’] relates to the position an utterance occupies in the discourse. In other words, it assesses the interactional/structural purpose of an utterance, i.e. what the speaker intends to achieve in structural/interactional terms at a particular point in the discourse and how s/he
Figure 14. Representation of “interactional intent” and “force” fields
REPRESENTATIVES [assertives, predictives concessives] (report a state of affairs)
Key Represents a relationship between one move and another, e.g. “initiation” & “response” Indicates type of speech act category involved
INFORM [“h”] (e.g. affirm, assert, claim, deny, state, admit, confess, recount concede, allow, maintain, conclude)
FOLLOW UP-INITIATION [“FOL-INI”] (e.g. COMMENT-QUESTION)
RESPONSE-INITIATION [“RES-INI”] (e.g. RESPONSE-REQUEST) FOLLOW UP [“FOL”] (e.g. COMMENT, FEEDBACK)
RESPONSE [“RES”] (e.g. ANSWER, REPLY, ACCEPTANCE, REFUSAL)
FORCE = INTERACTIONAL INTENT = COMPARABLE SPEECH ACT CATEGORIES = (cf. Sinclair and Coulthard 1975; Stenström 1984) (cf. Verschueren 1999; Wierzbicka 1987) (cf. Searle 1969; Bach and Harnish 1979) COMMISSIVES (or directives) COUNSEL [“w”] (commit S to do something/attempt (e.g. caution, warn, threaten, compel, advise) to get H to do something) QUESTION [“q”] INITIATION [“INI”] (e.g. ask (about), inquire (into), interrogate, query) (e.g. eliciting devices, including DIRECTIVES REQUEST [“r”] QUESTION, REQUEST [requestives, questions, requirements] (e.g. beg, beseech, plead, request, desire, solicit) REQUIREMENT) (attempt to get H to do something) REQUIRE [“c”] (e.g. command, instruct, require, direct, order) DECLARATIONS SENTENCE [“v”] REPORT [“REP”] [verdictives] (e.g. convict, acquit, pardon) (e.g. STATEMENT) (declares something to be the case) EXPRESSIVES EXPRESS [“k”] (express something of S’s attitude[s]) (e.g. reprimand, criticise, praise, exclaim, protest)
Chapter 4. A systematic approach to context identification and analysis
Questions and Answers in the English Courtroom (1640–1760)
does it (cf. Stenström 1984: 3) – so that we have a better understanding of the ways in which trial talk is organised. Possible values include: “initiation”
= initiating a new exchange by means of an eliciting device. Prototypical examples: question, request, requirement “response” = providing information that has been directly elicited by another participant, usually by responding verbally. Prototypical examples: answer, acceptance, refusal, denial “response-initiation” = responding to a direct elicitation of another participant by using/and following it with an eliciting device. Prototypical examples: an answer immediately followed by a request “report” = stating information which has not been directly elicited by another participant. Prototypical examples: statement, explanation “follow up” = providing follow-up/feedback to a preceding utterance in some way. Prototypical examples: comment, evaluation “follow up-initiation” = providing follow-up/feedback to a preceding utterance by using/and following it with an eliciting device. Prototypical examples: a comment immediately followed by a question
The reader will have noticed that my design shares some similarities with the Birmingham School of Discourse Analysis, pioneered by Sinclair and Coulthard (1975). Sinclair and Coulthard (1975) recorded a number of British primary school lessons and, on the basis of their data, proposed a rank structure for a ‘lesson’ along the lines of ‘Lesson – Transactions – Exchange – Move – Act’, where: 1. ‘Act’ denoted specific speech acts (21 in total). 2. ‘Move’ denoted the ways in which the various ‘acts’ combined together (e.g. an ‘opening move’ may consist of m (= marker) + s (= starter) + el (= elicitation) + p (= prompt) + n (= nomination)). 3. ‘Exchange’ denoted the ways in which ‘moves’ combined together (e.g. an ‘opening move’ + ‘answering move’ + ‘follow-up move’). 4. ‘Transaction’ denoted the ways in which ‘exchanges’ combined together to make sub-dialogues that accomplished one major step in the participant’s
Chapter 4. A systematic approach to context identification and analysis
plan for achieving the lesson task, and ‘lesson’ denoted the ways in which the different transactions combined together. Why have I chosen to adopt a system that appears to resemble Sinclair and Coulthard’s (1975) ‘exchange’ element (above), especially given the fact that they have been criticised for attempting to impose a pre-existing Hallidayan rank-scale model of linguistic description on the data rather than allowing the data to drive the theory (cf. Stubbs 1996: 28)? I do so because I believe that we cannot really understand questions and answers (in the courtroom, at least) unless we appreciate that such utterances form interactive units. ‘Answer’, after all, is not a specific illocutionary force. Rather, it is a functional discursive qualification (Moeschler 2001: 241). In other words, it indicates the function that a speaker wants a particular speech act to serve. The above interactive/structural elements are also meant to ensure that (i) we do not confuse turns (i.e. what a speaker says as long as he holds the floor), with what the speaker actually does in a turn, so that (ii) we can account for those instances when the speaker does more than one thing in the same turn, such as responding to given information and immediately eliciting new information (e.g. “response-initiation”, see also “follow up-initiation” above, and Stenström 1984: 83). Moreover, as it is possible for a speaker turn – a response, in particular – to be verbal or non-verbal, the reader should note that an additional sub-field deals specifically with the function of ‘questions’ and their ‘answers’ (see 4.4.3 below, and, in particular, ‘refuse to answer’, which allows for the coding of deliberate silences). It is worth noting that, like Stubbs (1983: 183), I do not merely see the ‘moves’ that make up ‘exchanges’ as ± predicting and ± predicted (cf. Coulthard & Brazil 1981: 97), but as ± initial: A starting point for discourse analysis is to use the concept of continuous classification (Sinclair & Coulthard 1975: 120): each utterance is classified or interpreted in the light of the structural predictions, if any, set up by the preceding utterance. That is, given any utterance we ask whether it predicts a following item, whether it is itself a response to preceding items, whether it marks an initial boundary of a relatively large unit of discourse and thus predicts such a unit, and so on (cf. Sinclair & Coulthard 1975: 14). Such an approach proposes a small number of minimal interactional categories, at primary delicacy, which might include moves such as initiate, I; respond, R; respond-initiate, R/I; and feedback, F. Coulthard and Brazil (1981: 97) define elements of exchange structure in terms of two features, ± predicting and ± predicted . . . these features entail other features. The feature + predicting entails – terminal: if an utterance predicts a following utterance, it cannot be
Questions and Answers in the English Courtroom (1640–1760)
terminal. Similarly, the feature + predicted entails – initial: another utterance must have preceded it. But the features – predicting and – predicted do not entail anything about the position of utterances within an exchange (Stubbs 1983: 135–136).
The primary purpose of my ‘interactional intent’ field, then, is to distinguish those utterances that elicit from those that respond to, comment upon or terminate an exchange. Nevertheless, my awareness that the ‘emergent theory’ should be ‘controlled by the data’ ensures that the categories are designed so as to reflect the ‘moves’ (to use Sinclair and Coulthard’s term) that occur in the SPC trial texts (cf. Stubbs 1983: 129). As interaction in the courtroom is similar in some ways to interaction in the classroom, that is to say, both are rather formal and ritualistic, and feature (at least) one participant with the institutionalised power to direct the discourse, it is not too surprising that a system similar to the three-part structure of initiation-response-feedback (IRF) should be useful in such a setting. The IRF structure has also been utilised by Coulthard and Montgomery (1981) and Berry (1981), to describe the interaction in other ‘formal/ritualistic’ discourse types such as medical consultations and quiz shows. So does this mean, as some claim, that the concept of exchange structure is only applicable to those discourse types that are overtly structured? Work by Stenström (1984) and Carletta et al. (1997) suggest not. Stenström (1984) utilises Sinclair and Coulthard’s (1975) basic pattern of ‘Initiation-Response-Follow-up’, as well as subsequent work done by the Birmingham group (Coulthard & Montgomery 1981), to study face-to-face question/response exchanges in 25 conversations taken from the London-Lund Corpus of Spoken English (LLC) (Stenström 1984: 3, 4). Taking their inspiration from computational models of dialogue as well as Sinclair and Coulthard (1975), Carletta et al. (1997) apply a dialogue structure coding scheme to a corpus of spontaneous task-oriented spoken dialogues in an attempt to represent dialogue structure generically ‘so that it can be used in conjunction with codings of many other dialogue phenomena’. Stenström (1984) and Carletta et al. (1997) account for many more values at their ‘move’ level than I do at my ‘interactional intent’ level (cf. Stenström’s (1984: 83–86) ‘framing’, ‘focusing’, ‘checking’, and ‘supporting’ moves and Carletta et al.’s (1997) ‘instruct’, ‘explain’, ‘check’, ‘align’, ‘query’ and ‘acknowledge’ moves, etc.). My reasoning for not including additional values is two-fold. Firstly, as previously explained (4.3.5), there is a trade-off in any categorisation between usefulness and ease or consistency of coding. As the primary purpose of my ‘interactional intent’ field is to distinguish between utterances that elicit,
Chapter 4. A systematic approach to context identification and analysis
respond to, comment upon, and terminate an exchange, I decided that further classifications would make the field overly-cumbersome and, thus, potentially more problematic to implement. Secondly, I believe that the kind of distinctions that Carletta et al. (1997) and Stenström (1984) make at this level can be adequately accounted for at a different level (i.e. the force field and, where applicable, their function-indicating sub-fields). We can distinguish the different functions that a ‘question’ is serving, for example, by initially identifying that an eliciting move has the force of a question (as opposed to a command or request, for example), and then substantiating its particular function (e.g. whether it is confirmation-seeking as opposed to information-seeking). The particular fields designed to make such distinctions – namely, the force field and additional (function of Q or A) sub-field – are discussed in more detail in 4.4.2 and 4.4.3 following. .. The force field The force field [force=“”] assesses the illocutionary force of an utterance and, as such, draws on (but does not replicate) the work of Speech Act theorists (see 2.2.3–2.2.3.3). Figure 15 (below) provides a summary of five of the best-known classifications of illocutionary types in tabular form. Allan (2000) suggests that these classifications can be divided, in turn, into two approaches: a lexical classification of so-called illocutionary verbs (following Austin 1962) and a classification of acts (following Searle 1969, 1975).74 The work of Ballmer and Brennenstuhl (1981) and Wierzbicka (1987) exemplifies the first approach. Ballmer and Brennenstuhl (1981) classify 4,800 verbs into 600 categories, according to a specific “illocutionary property”. For example,
Austin
Vendler
Searle
Expositives Commissives Behabitives Exercitives
Expositives Commissives Behabitives Interrogatives Exercitives Verdictives Operatives
Assertives Commissives Expressives Directives
Verdictives
Bach and Harnish Allan
Assertives Statements Commissives Acknowledgments Expressives Directives Invitationals Authoritatives Declarations Verdictives Effectives
Figure 15. A comparison of five classifications of illocutionary types (from Allan 2000: 10)
Questions and Answers in the English Courtroom (1640–1760)
the verbs to bitch at, carp about, grumble, murmur, mutiny, nag, pout, rumble, sulk, whine, and wrangle are grouped together under the heading, ‘Make a hidden appeal’ (1981: 73), and the (related) SA verbs are then identified using the following formula: Jo ______ “Why me?” [e.g. whined]. Wierzbicka (1987) groups 270 speech act verbs into 37 ‘bundles’ of components, ‘every component represent[ing] a certain state or ‘posture’ of the mind’ (Wierzbicka 1987: 17). For example, she initially sub-categorises ‘ask’ to capture their different senses (cf. ‘asking a question’ [Wierzbicka’s ask2 ] and ‘asking someone to do something’ [Wierzbicka’s ask1 ]) before grouping inquire/enquire, interrogate, question and query under ask2 , and request, beg, beseech, implore, appeal, plead, intercede, apply, urge, persuade/dissuade, convince under ask1 . Bach and Harnish’s (1979) ‘speech act schema’ exemplifies the second approach. The ‘schema’ consists of four main types of illocutionary act, constatives, directives, commissives, and acknowledgements (cf. Searle’s 1969, 1976 concentration on ‘illocutionary point’): For us constatives express the speaker’s belief and his intention or desire that the hearer have or form a like belief. Directives express the speaker’s attitude toward some prospective action by the hearer and his intention that his utterance, or the attitude it expresses, be taken as a reason for the hearer’s action. Commissives express the speaker’s intention and belief that his utterance obligates him to do something (perhaps under certain conditions). And acknowledgements express feelings regarding the hearer or, in cases where the utterance is clearly perfunctory or formal, the speaker’s intention that his utterance satisfy a social expectation to express certain feelings and his belief that it does. (Bach & Harnish 1979: 41; original emphasis)75
Although both approaches (i.e. classification of ‘verbs’ and classification of ‘acts’) are highly intuitive in some respects, they have provided me with useful classificatory insights when thinking about the design of my own force field. Wierzbicka’s (1987) distinction between asking a question and asking someone to do something has been particularly useful, inspiring me to adopt separate ‘request’ and ‘question’ categories (see Appendix 2). That said, my approach is not a strict lexical classification of so-called illocutionary verbs, or Searlean speech acts for that matter. Rather, I assign utterances to one (or more) of seven macro categories, e.g. ‘counsel’ (= “w”), ‘question’ (= “q”), ‘request’ (= “r”), ‘require’ (= “c”), ‘sentence’ (= “v”), ‘express’ (= “e”) and ‘inform’ (= “h”), viewing these macro categories, and the values they subsume, as ‘reasonably accurate approximations of the prototypical instances of verbal behaviour describable by means of the English verbs used as labels’ (Verschueren 1999: 131–132). Def-
Chapter 4. A systematic approach to context identification and analysis
initions of the macro-categories are as follows (detailed definitions of the values they subsume are given in Appendix 2): Counsel
S wants to convey something to A which will help prevent Y or will result in Y [Y = an event not in A’s best interest] Question S wants A to supply a missing variable by saying/confirming/clarifying something about X [X = an action/event/behaviour/person] Request S wants Z to happen and hopes to do it, to get A to do it or to get others to do it [Z = an action/event] Require S wants (and expects) A to do something, even though A may be reluctant, or to do something him/herself, in spite of A’s (possible) reluctance Sentence S wants to signal a legal decision to A/others (that A is (i) being formally indicted, (ii) to be legitimately punished for, or (iii) being released from the threat of legal punishment) Express S wants A (and others) to know his feelings (about X) and/or cause the action or behaviour to stop Inform S wants to communicate something (about X) to A
My motivation for opting for reasonably accurate approximations of the prototypical instances of verbal behaviour rather than strict lexical classifications of illocutionary verbs is both methodological and theoretical. Firstly, in contrast to Wierzbicka (1987), my main interest is a pragmatic one: i.e. classifying the primary force of particular utterances in the specific context of the Early Modern English courtroom so that I have a better understanding of the function[s] of utterances (as opposed to ‘modelling in explicit and verifiable formulae the meanings which people convey in speech ([. . . ] by conventional linguistic means)’: Wierzbicka 1987: 17). Secondly, I do not believe that the categories actually utilised in speech production are properly explicated by providing sets of necessary and sufficient conditions for speech act category membership. In other words, I do not see terms such as request, require and question as being the inventions of speech act theory. Rather, following Levinson (1983: 368), I see them as being part of ‘a rich (if largely unexplored) natural language metalanguage’. As my stated intention is to classify the primary force of particular utterances, I should flag up that I am aware that SA theory is often criticised for underestimating speaker meaning by attempting to assign, by and large, a single force to an utterance. In one sense, this is an overly-made criticism, of course, as most speakers on most occasions resolve any apparent ambiguity by assigning one force to an utterance. However, as the force of some utterances
Questions and Answers in the English Courtroom (1640–1760)
can/may remain indeterminate (because of contextual factors such as status, power and discourse sequencing, for example), my design allows for the inclusion of multiple and, indeed, indeterminate forces (by using the “m” and “p” values respectively). The reader will also be aware that I seem to be assuming that the illocutionary force of a particular ‘verbal action category’ (e.g. question, request) existed as a language function during the period under investigation (Jucker & Taavitsainen 2000: 70). And, according to Stetter (1991: 74, 79, cited in Jacobs & Jucker 1995: 19), speech act-type methodologies possess no historical application because of the impossibility of reconstructing speaker meaning in the past. In my defence, I believe that it is more accurate to say that historical context is not completely recoverable, but that it can be approximated and reconstructed – as long as we recognise that ‘speech act’ forms are relative to the specific environment in which they occur, that is to say, that the conventions of language use in the culture under discussion need to be factored in whenever they are recoverable (cf. cross-cultural analyses). In other words, as Arnovick (1999: 12) makes clear, we need to think in terms of historically determined, differentiated, and conventionalised ‘speech acts’, which are relative to (any) one time, place, and people (see also Jacobs & Jucker 1995: 19–20). Consequently, I reconstruct my categorisations from my historical courtroom data, and corroborate them utilising the OED and other historical corpora/dictionaries, to ensure their contextual/historical relevance. My macro-categories, then, are meant to exemplify the main instances of verbal behaviour in the (historical) courtroom. Some ‘speech-act’ phenomena are highly conspicuous in EmodE courtroom data, of course. Questions, for example, are frequently identified by the use of the capital letter ‘Q’. However, they are not the only eliciting device utilised in the (historical) courtroom. Indeed, as Figure 14 reveals, (re)initiations in the historical courtroom consist of ‘counsels’, ‘questions’, ‘requests’, and ‘requires’. Consequently, I should point out that, as I am interested in ‘speech acts’ as functional units – and ‘speech acts as functional units do not correspond directly to speech act verbs’ (Jucker & Taavitsainen 2000: 70) – I do not restrict myself to performative/speech act verbs that appear in the texts, but utilise evidence of all ‘speech act’ phenomena (direct and indirect). I also take into account how ‘speech acts’ interface with one another, in accordance with Jucker and Taavitsainen’s (2000) notion of ‘pragmatic space’. In other words, I analyse verbal action categories ‘in relation to their neighbouring speech acts in the same way that natural language expressions are analysed within semantic fields in relation to expressions with related meanings’ (Jucker & Taavitsainen 2000: 68), hence the macro-categories.
Chapter 4. A systematic approach to context identification and analysis
My macro categories, and the values they subsume, are also designed so as to reveal a cline of speaker/addressee involvement, and sensitivity to the influence of social variables such as role, status and distance. Consider ‘inform’, for example. Two of its values are ‘state/testify’ and ‘insist/swear’. Notice, however, that the former tend to convey a sense of neutrality or objectivity on the part of the speaker, whilst the latter convey an assumption of resistance on the part of would-be addressees (see Appendix 2 for more detailed definitions of the above). As defendants had to prove their innocence, it is not unreasonable to suppose that they were more likely to ‘insist’ as opposed to ‘state’ when giving evidence in a courtroom setting (that is, maintain very firmly and/or persistently as opposed to saying what is “true” in a way that does not react to nor anticipate other people’s utterances). .. Additional question and answer function-indicating sub-fields As previously mentioned, ‘answers’ are not really speech acts. Rather, they are a means of distinguishing the (interactional/structural) function that a particular speech act is serving at a particular time in the discourse. Consequently, utterances that function as ‘answers’ are put into the most pertinent macro category in respect to the force field (in most cases, this tends to be ‘inform’), and I include an additional sub-field to capture the various functions of answers and their corresponding questions [a=“” and q=“” respectively]. Possible values include: q= ask (about) = “as”, e.g. seek to get A to confirm (some thing[s] about) Y (cf. Carletta et al.’s 1997 ‘check move’, and Stenström’s 1984: 156
Questions and Answers in the English Courtroom (1640–1760)
a= (in)validate = “inv/val”, e.g. provide polarity decision (explicitly) (cf. Carletta et al.’s 1997 reply-y and reply-n moves, and Stenström’s 1984: 78
My values share similarities with – but are not based upon – Carletta et al.’s (1997) and Stenström’s (1984) work on moves (see 4.4.2), and also draw on the insights of conversation analysis (see ‘refuse to answer’). An expanded version of the above is included in Appendix 2. .. The form field The form field relates to questions only. Its purpose is to account for the grammatical form of ‘prototypical’ questions (i.e. those utterances whose linguistic structure is that of the interrogative, and which are heard by the hearer/addressee as requesting some kind of verbal and/or non-verbal response). The form field consists of two sub-fields, the first of which identifies the grammatical question type, and the second of which provides a brief indication of its actual form in the text (i.e. ‘what’, ‘did’). The primary purpose
Chapter 4. A systematic approach to context identification and analysis
Are Did not Has How far How often Must not Were Which
Can Do Has not How long Is Never What Who
Could Do not How How many Might not Or When Why
Could not Don’t How came How much Might Shall Where Why did not
Did Had How come How near Must Was Whether Would, etc.
Figure 16. Possible values for the ‘qform’ field76
of the second sub-field, in particular, is to help determine the types of whquestions and yes/no questions in the data (‘what’ as opposed to ‘why’, ‘did’ as opposed to ‘have’, etc.). Possible values for ‘qform’ and ‘qtype’ are given in Figures 16 and 17 respectively. Brief illustrative examples and/or definitions for the ‘qtype’ values are also provided in Figure 17 (for more detailed definitions of these question types, see Chapter 2). As the categories for the different fields are data-driven, they have not been overly problematic to implement. That said, some have been easier to implement than others. Indeed, the form field has probably been the easiest to implement of the three, and the force field, the most difficult field to implement. This is not unduly surprising, given that most questions had a recognisable interrogative form (see 5.2).77 In contrast, assigning one functional meaning to questions and (answers) could prove taxing, on occasions. A particularly interesting case was ‘do you know anything of . . . ’ type questions, which at their surface level, at least, wanted validation and also additional information. As there is always a trade-off between usefulness and ease or consistency of coding, I decided to use ‘iq’ (= questions that solicit a verbal response from A which would cause S (and others) to know (some thing[s] about) Y) for these questions (see Appendix 2).
. Some final comments Barnbrook (1996: 9) highlights an important point that I found relates to projects such as mine, and one that I feel is important to mention here, as I have previously suggested that annotation schemes ultimately save the analyst time: In practice, it often happens that the features of the text under analysis are not completely established until several attempts . . . have been made. [In other
Questions and Answers in the English Courtroom (1640–1760)
Question type (qtype)
Example or definition
“w”
An interrogative structure that (usually) begins with a wh-element: ‘What is your name Sir’ A wh-interrogative that is negatively framed: ‘Why did you not name Coleman at that time?’ A wh-question whose interrogative element is reported: ‘I asked her why she’d done it’ An interrogative structure that can be answered by ‘yes’ or ‘no’: ‘Have you any more to say?’ A polar interrogative that is negatively framed: ‘. . . shall I not know by what Law I am tried’ A yes/no question whose interrogative element is reported: ‘I humbly ask whether it was a reasonable thing to conceive that the Council should extenuate the punishment. . . ’ An indirect yes/no question that is negatively framed: ‘The Question is, Whether she hath never owned and confessed to any Body, that these Papers were opened before a Friend of hers, before the Messenger seized them?’ A structure that asks H to choose between two expressed alternatives: ‘Are you Elder or Younger than he?’ An alternative question whose interrogative element is reported: ‘tell us whether it is your own hand writing, or not?’ A structure that has the force but not the form of a question (i.e. subject/verb inversion): ‘And you don’t remember that your Father and Mother came to England in that time?’ An elliptical interrogative structure attached to a declarative form: ‘You dwell there sometimes, don’t you?’ A structure that ‘echoes’ something previously said by another A question involving ellipsis: ‘Well, Sir, the second Year?’
= wh-interrogative
“nw” = negative wh“iw” “y” “ny” “ip”
= indirect wh-interrogative = polar interrogative = negatively framed polar = indirect polar
“inp” = indirect negative polar
“a” “ia”
= disjunctive interrogative = indirect disjunctive
“d”
= declarative question
“t”
= tag question
“ec”
= echo question
“el”
= elliptical question = rhetorical question = question[s] in narrative
“r” “f ”
“m” “p”
= multiple interrogatives = problematic
An interrogative structure that does not seem to expect an answer (usually because the answer is self-evident) Questions that appear in speakers’ narratives: ‘Says I, if you would have me, I will go to him, and desire him to come. When would you speak with him? At any time, says he . . . ’ A utterance that contains more than one interrogative Question-type is ambiguous
Figure 17. Classification of question-types (including an illustrative example and/or brief definition)
Chapter 4. A systematic approach to context identification and analysis
words], . . . a cyclic process of program specification, output checking and program amendment is needed before a completely usable result is produced.
The software used for this study was specially developed for it (Hughes 2002), and, as Barnbrook (1996) predicted, this took up a significant amount of time.78 Indeed, it involved an ‘extra stage’ that I had not envisaged initially, namely, changing ‘the format of the data . . . to make it suitable for the software’, which, in turn, resulted in ‘further analysis’ and checking procedures (cf. Barnbrook 1996: 9). When we began work on the original annotation scheme (see Archer & Culpeper 2003), we assumed that the scheme could be adequately interrogated by WordSmith Tools (Scott 1996). But it soon became obvious that our annotation scheme was too complex for Wordsmith: Wordsmith only allows searches of complete strings (i.e. a particular string cannot omit the status field for example, and search only the sex and age fields). In contrast, the new program has been designed in such a way that it allows searches of different fields, no matter where they are situated in the string. This is primarily because it makes use of Boolean searches (that is, the program is able to represent relations between sets, using symbols such as ‘and’, ‘or’, etc.). It is worth noting that Lou Burnard suggested another way of constructing the annotation scheme, namely, placing more of the static information in the header. By way of illustration, we could have placed in the header a list of speakers and a list of addressees with their respective status and age values. This would have meant that the tags in the text would have included less values, i.e. a speaker identification number, an addressee identification number, dynamic properties, such as role and, in the case of the trial data, values for my question (and answer) fields. The benefit, of course, is that it reduces the amount of information that is carried in the tag and, consequently, the potential for error when the tags and values are inserted.79 Even so, the number of fields would have still proved problematic when using Wordsmith. Moreover, once the approach to the computer-based analysis had been established (i.e. the texts were made XML-compatible so that they could be interrogated by the PERL program within a web-interface), the processing itself was automatic and reasonably fast. Also, as our program is designed to collate information regarding fields and values, the fact that we have all our information in tags has actually turned out to be very useful, not least because the program retrieves all the field values along with the utterance[s] to which they relate. Finally, I should point out that the size of my corpora, and the low frequencies of some of the findings I report on are such that the following chapters
Questions and Answers in the English Courtroom (1640–1760)
should be regarded as a snapshot of the period which, although more detailed than previous research, does not tell us the ‘the whole truth’ about the courtroom of the 1640s–1760s, and, as such, requires (in)validation by further research (see Chapter 12). The size of my corpora, and the low frequencies of some of the findings I report on also explain my decision to use raw figures, percentages and phrases such as substantial proportion as opposed to statistical figures when presenting my findings (see Chapters 5–11 following). I do not see this as a problem (as long as I shy away from claiming comprehensive ‘representativeness’). Indeed, like Stubbs (1996) I think that it would be inadvisable to attribute levels of statistical significance to some of my figures: First, the frequency of individual words in different corpora is highly sensitive to the content of the texts which make up the corpus. Second, normal statistical assumptions of random occurrence do not apply [. . . ]. Third, although there may be only a few observed instances of a given [feature] . . . the occurrence [may still be] . . . linguistically highly significant, even if conventional statistical tests do not apply. (Stubbs 1996: 241, n.3)
I am not suggesting that statistical analysis is unnecessary. Rather, I am advocating that we use it wisely. For example, Chi-squared or binomial distribution tests are based on the assumption of ‘normal distribution’, and: Statistics based on the assumption of normal distribution are invalid in most cases of statistical text analysis unless either enormous corpora are used, or the analysis is restricted to only the very most common words (that is, the ones least likely to be of interest). (Dunning 1993: 16)
Consequently, results generated from applying such procedures would probably seriously underestimate the significance of some of the more ‘statistically rare’ features in my data.80 The following chapters, then, highlight (quantitative and/or qualitative) findings respecting the use of questions and answers and other ‘speech acts’ in the EmodE courtroom that I believe to be ‘linguistically significant’, and thus worthy of study (cf. Stubbs 1996: 241, n.3; see also 7.5 and Chapter 12).
Chapter 5
Questions in the historical courtroom (1640–1760)
. A sociopragmatic account of courtroom questions This chapter provides an overview of the period covered by the SPC data as a whole (1640–1760). My main focus is identifying the various forms of questions in the SPC data, so that I can go on to demonstrate that questions served various functions in the late EmodE courtroom, depending on the role of the user, their addressee, and the ultimate aim of their interaction (see also Chapters 6–10). In particular, I will be concentrating on: 1. The types of interrogatives utilised in the SPC data, and their frequencies. 2. The frequency of ‘pragmatic’ questions (i.e. utterances with the force of a question, but not the interrogative form). 3. The extent to which those interrogatives/pragmatic question-types functioned as part of a questioning sequence. 4. The extent to which those interrogatives/additional question-types took on additional ‘context-specific’ functions, such as ‘control’ (cf. Harris 1984; Woodbury 1984). 5. The effect of (institutionally sanctioned) power/powerlessness upon the “potency” of questions. Whilst the focus of this chapter is mainly on formal aspects, I will be emphasising throughout that one needs to take sociopragmatic factors into consideration if one is to fully appreciate the dynamics of questioning in the EmodE courtroom. For example, in relation to (iv) and (v), I will argue that, although one of the functions of questions was to (seek to) control, we should not automatically assume that questions were a manifestation of power. Indeed, I will demonstrate that interrogative syntax only ‘places unusually powerful constraints on what can follow’ (cf. Stubbs 1983: 104) when the questioner’s
Questions and Answers in the English Courtroom (1640–1760)
role is associated with power in some way (e.g. if they have the institutionally sanctioned right to ask questions and the authority to compel answers). I begin Chapter 5, then, with a summary of the question-types utilised in the SPC, and their various forms. In particular, I examine the multifunctionality of some interrogative forms, and the ‘routinized’ nature of others (see 5.2.1–5.2.2). I also explore the extent to which different interrogativetypes exhibited non-periphrastic inversion and/or indirectness (see 5.2.3 and 5.3). Section 5.3.1 then looks at the use of questions in narrative, and 5.4, at whether, given this ‘reporting’ function, we should automatically assume that courtroom questions contain a ‘command’ element (cf. Goody 1978; Walker 1987). In 5.5, I return to an examination of interrogatives that elicit something (be it information, confirmation, or an action, etc.), in order to point out that the individual interrogatives of the examiners, in particular, cannot be interpreted in isolation in a courtroom context, for they are invariably part of a questioning sequence. I also document some of the most common questioning sequences evidenced in the SPC (5.5–5.6). Section 5.7 then highlights the importance of investigating questions according to use and user, i.e. how different participants utilised question-types in different ways, depending on the role that they adopted.
. The form of questions in the SPC Participants utilised a total of 1,889 interrogatives in the trial texts of the SPC (see Table 1, below, for a breakdown of their types). 72 interrogatives occurred as part of a narrative. In other words, they were not eliciting devices as such, but reports of questions that had been asked previously, usually outside the courtroom (see 5.3.1 for a discussion of their various forms). The remaining 1,817 interrogatives were used to elicit something, be it information, confirmation or an action of some description. As we might expect, the majority (i.e. 98.3% or 1,786 out of 1,817) had a ‘questioning’ function, that is, S used the interrogatives as a means of getting A to supply a missing variable by saying confirming/clarifying something about X (X = an action/event/behaviour/person). The remaining 1.7% had the force of a ‘request’, ‘express’ or ‘require’. As pointed out in 4.4.2, utterances are assigned to the macro-category ‘requests’ when S wants Z [Z = an action/event] to happen and hopes to do it or get A (or others) to do it. They are assigned to the macro-category ‘express’ when S wants A (and others) to know his feelings (about X) and/or cause the action/behaviour to stop, and to ‘require’ when S wants (and expects) A to do something, or wants to do
Chapter 5. Questions in the historical courtroom (1640–1760)
something him/herself, even though A may be reluctant (Appendix 2 provides a list, as well as more detailed descriptions, of the sub-values belonging to each macro-category). Thus, in context, interrogatives like those in the following extract, taken from the Trial of Elizabeth Cellier (1680), often had the (primary) force of an ‘express’, that is, they were a means by which S made known his feelings about X. For clarity, I provide the participants’ roles, and underline the relevant interrogatives: [Context: The defendant had informed the judge that she could ‘prove’ the main prosecution witness against her, one Thomas Dangerfield, to be ‘perjured’. After some investigation, the judge discovered that Dangerfield had been indicted for several crimes. However, as the witness said that he had been pardoned, he was ordered to produce the pardon. The following exchange occurs after the witness had re-entered the courtroom . . . ] L. C. J. [Judge] (to Mr. Dangerfield) Such Fellows as you are, Sirrah, shall know we are not afraid of you. (addressee problematic) He produces us here a Pardon by the Name of Thomas Dangerfield of Waltham, and says, his Father and Kinsman are both of that Name and Place. VVill you have him Sworn whether his Father or Cozen Thomas was ever convicted of Felony. It is notorious enough what a Fellow this is, he was in Chelmsford Goal. I will shake all such Fellows before I have done with them. (to Mr. Dangerfield) Have you any more to say? Are there any Waltham Men here? Mr. Dan. My Lord, this is enough to discourage a man from ever entring into an honest Principle. L.C.J. What? Do you with all the mischief that Hell hath in you think to brave it in a Court of Justice? I wonder at your Impudence, that you dare look a Court of Justice in the Face, after having been made appear so notorious a Villain. [Trial of Elizabeth Cellier, 1680]
Notice that the above interrogatives functioned as rhetorical questions, that is to say they did not expect an ‘answer’ as such. Rather, they indicated the judge’s strength of feeling regarding Dangerfield’s ‘unacceptable’ behaviour (cf. Section 2.2.1.2). Indeed, the last example was particularly face-threatening, because it presupposed that Dangerfield was prepared to ‘brave it in a Court of
Questions and Answers in the English Courtroom (1640–1760)
Justice’ because he was amoral (cf. Brown & Levinson 1978: 228–230, who suggest that speakers use rhetorical questions to soften, rather than strengthen, their statements; see 7.7.1 and 10.3 for further commentary on the interaction between the Lord Chief Justice and Dangerfield). Table 1 (below) provides a breakdown of all 1,889 interrogatives in the SPC (please note that the table includes those interrogatives that were used to ‘report’ questions as well as those interrogatives that were used as eliciting devices). Much of the data relating to questions in the EmodE period identifies the syntactic question-types that were available, but says very little about the actual frequency with which those question-types were utilised. A strength of my annotation scheme is that I can provide quantitative figures with which to begin to (in)validate hypotheses (at least in relation to the courtroom). Notice, for example, that, although relatively infrequent in percentage terms, the declarative question was nonetheless the third most frequent question-type in the SPC data overall. It was most common during Period 4 (i.e. 1680–1720), when it accounted for 5.6% (that is, 38) of the 678 question-types. That said, its frequency (in percentage terms) was roughly consistent throughout the peTable 1. The various question-types utilised in the SPC data (by sub-period), and their frequency
Interrogative type
Period 3 Period 4 Period 5 SPC (1640–1679) (1680–1719) (1720–1760) (1640–1760) No. % Rank No. % Rank No. % Rank No. %
WhPolar Declarative Negative polar Indirect polar Alternative Problematic Rhetorical Indirect neg. polar Negative whElliptical Tag Indirect whIndirect alternative Echo Total
148 46.1 1st 292 43.1 82 25.6 2nd 246 36.3 17 5.3 5th 38 5.6 8 2.5 6th 36 5.3 7 2.2 7th 31 4.6 22 6.8 3rd 1 0.1 20 6.2 4th 8 1.2 6 1.9 =8th 17 2.5 – – – 3 0.4 6 1.9 =8th – – 4 1.2 10th – – – – – 4 0.6 – – – 2 0.3 1 0.3 11th – – – – – – – 321 100 678 100
1st 2nd 3rd 4th 5th 11th 7th 6th 9th – – 8th 10th – –
322 36.2 2nd 762 412 46.3 1st 740 38 4.3 4th 93 49 5.5 3rd 93 19 2.1 6th 57 33 3.7 5th 56 3 0.3 =8th 31 7 0.8 7th 30 3 0.3 =8th 6 – – – 6 1 0.1 =10th 5 1 0.1 =10th 5 – – – 2 1 0.1 =10th 2 1 0.1 =10th 1 890 100 1889
40.3 39.2 4.9 4.9 3.0 3.0 1.6 1.6 0.3 0.3 0.3 0.3 0.1 0.1 0.1 100
Chapter 5. Questions in the historical courtroom (1640–1760)
riod (i.e. between 4.3% and 5.6%; see Table 1, above).81 Wikberg (1975: 130) highlights an important point about assertive questions that I will discuss in more detail in 5.4.1, namely, that ‘all declarative sentences cannot be turned into this Q-type’. This suggests, then, that context cannot be disregarded, even at the level of identifying form and, in turn, justifies my decision to emphasise sociopragmatic factors (in particular, how use is constrained by the role of the user and his/her addressee) throughout a chapter that is explicitly formal in orientation. Notice, then, that the wh-interrogative and the polar interrogative were the most popular interrogative types in the SPC, accounting for 40.3% and 39.2% of the total interrogatives respectively. A substantial proportion of these (i.e. 82.7% or 630 out of 762 in the case of wh-interrogatives and 73.1% or 541 out of 740 in the case of polar interrogatives) were utilised by the primary examiners of the EmodE courtroom, by which I mean the judges, the prosecution and defence counsels, the courts and the recorders. The reader should note that those identified as the ‘court’ or ‘recorder’ in the SPC trial texts adopted a judicial role similar to that of the ‘judge’. The former was a label that EmodE scribes applied to both judge and jury. Consequently, several trials utilise both the ‘judge’ participant label and the ‘court’ participant label (see, for example, the Trial of Edward Coleman, 1678). Recorders were/are a type of judge that could/can continue working as an advocate when not engaged in judicial activities. As with the ‘court’ and ‘judge’, several of the SPC trial texts utilise both the ‘recorder’ and ‘judge’ label (see, for example, the Trial of Elizabeth Cellier, 1680). As highlighted in Section 3.3, different question types can be classified according to the degree of control they provide the questioner in much of the literature relating to the contemporary courtroom (e.g. Woodbury 1984; Philips 1987). For example, polar interrogatives are generally characterised as more controlling than wh- and disjunctive interrogatives, because of ‘the intent of greater specificity and narrowness of response’ (Philips 1987: 84), but less controlling than declarative questions and tag questions, which ‘presuppose the answer as well as limiting it to yes or no’ (Philips 1987: 84). The EmodE examiners’ preference for two of the least controlling question-types in the SPC data may lead us to assume that they did not exercise a high degree of control over their respondents (see 3.3). However, we should not judge the ‘controlling’ capacities of question-types without also considering their objective, for many of the wh-interrogatives in the SPC trial texts requested fairly minimal responses in context, such as the naming of a figure (how many. . . ), location (where. . . ), time (how long/when/what time . . . ), and object or person
Questions and Answers in the English Courtroom (1640–1760)
(what/who. . . ), etc., and thereby reflected a stronger control function than we might initially anticipate. .. The multi-functionality of what-interrogatives The ‘restrictive’ use of wh-interrogatives in the contemporary courtroom is well documented (see, for example, Woodbury 1984: 212; Luchjenbroers 1997: 482). Here, wh-interrogatives tend to be sub-classified into broad, narrow and reduced, depending upon the ‘degree of [situation-bound] specificity required of the addressee’ (Woodbury 1984: 202). Yet, my data suggests that even the wh-interrogatives that are given a ‘broad’ classification may not be as unrestricted as traditionally assumed when utilised by examiners in the courtroom context. Take what-interrogatives, for example. As Table 2 (below) reveals, what was the most popular interrogative form in the SPC (please note that I have ranked the forms according to their frequency in the trial data). Table 2. The various interrogative-forms utilised in the SPC, and their frequency Form
Freq.
Form
Freq.
Form
Freq.
What Did Was Do Have How Or Where How long Who Whether Did (. . . ) not Were When Is Had Are Can Why How came
360 297 143 87 83 83 76 72 62 51 47 44 41 40 35 24 24 23 21 20
How far If Whose Was (. . . ) not Would Could How many How often Which Why (did) not Is not How come Were not/(. . . ) no Have (. . . ) not Are not/never How much How near Do[es] (. . . ) not Did (. . . ) no/nobody Did never
20 17 12 10 10 9 9 8 7 6 5 4 4 4 3 3 3 3 3 3
Shall Was (. . . ) never Hath Must Must not Shall not Had (. . . ) never Might not Was it not (t) Nor what Has Don’t Can not Did he (t) Don’t you (t) Doth Have you not (t) Could (. . . ) not Would not Problematic
3 3 2 2 2 1 1 1 1 1 1 1 1 1 1 1 1 1 1 8
Chapter 5. Questions in the historical courtroom (1640–1760)
The high proportion of what-interrogatives is not surprising when one considers the functional range of the latter. Indeed, what-interrogatives are utilised in the SPC data to: 1. Initiate questioning sequences, the ‘broadest’ being those that functioned like ‘give an account’ imperatives (e.g. ‘What do you know concerning’; ‘What say you . . . ’), 2. ask about the discourse of the respondents and/or another (e.g. ‘. . . what said X’; ‘What did you say to that’), and, significantly, 3. request specific information, such as an amount (‘. . . what did you spend there?’), or a name (‘What is your name Sir’). Moreover, it is worth noting that even the ‘broad’ what-interrogatives were not as broad as they would have been if they had been spoken in a different context. By this I mean, the examiners did not allow the respondents to tell all they knew in their own words. Rather, they tended to utilise the whatinterrogatives as part of a questioning sequence designed to elicit only that information which they deemed to be ‘appropriate’ to the case. By way of illustration, in the following extract taken from the Trial of Francis Francia (1716), a defence lawyer, Hungerford, was questioning a ‘friendly’ witness, Cecilia Ceres. As the extract reveals, Hungerford’s first question to Ceres was a ‘broad’ what do you know question. However, as it was restricted in context by a second what-interrogative immediately following it, the witness’s options were not as ‘broad’ as the what do you know question implied: Then Cecilia Ceres was sworn. Mr. Hungerford. What do you know of the Prisoner? What Country Man is he? Ceres. I went to School with him at Bourdeaux. Mr. Hungerford. Where was he reputed to be born? Ceres. At Bourdeaux, in the same Street where I was. Mr. Hungerford. How Old was he when you knew him first? Ceres. We were both Children. Mr. Hungerford. I think the Place of a Man’s Birth can’t be better prov’d, it is prov’d by some that were in the Room at his Birth, some that went to School with him, and some that knew him there a Child.
I will be discussing the different uses of what-interrogatives in more detail throughout Chapters 7 and 8 in particular.
Questions and Answers in the English Courtroom (1640–1760)
.. Routinized questions The second most popular wh-interrogative was how and its variants, e.g. how + adverb (see Table 2 above). Many of these interrogatives exhibited features observed by Philips (1987: 98) when examining modern courtroom data; namely, they repeatedly appeared in the same form and requested the same/similar (type of) information from respondents (Philips uses the term ‘routinized’ when referring to such questions). This is not to say that all ‘routinized’ how. . . interrogatives were information seeking. Indeed, some of the most popular, that is ‘How (do/did) . . . know. . . ?’ and ‘How came . . . ? (which were utilised on 15 and 20 occasions respectively in the SPC data), were used to seek clarification of something said by another, and, occasionally, to undermine a respondent. Which function they served tended to depend on both the immediate co-text and on the type of examination (e.g. direct versus cross-examination). In the following extract, for example, a seemingly harmless request to know how a witness came to be at Newgate prison was one of several interrogatives whose ultimate goal was not to procure information, but to undermine the witness (for clarity, I include an indication of participants’ roles): Then Mary Meggison was sworn. Mr. Hungerford. (defence counsel) Do you know of any Offers that were made to the Prisoner, and by whom? Meggison. (witness for defence) Upon the Twenty Eighth of September last I was in Mr. Francia’s Room, and Mr. Buckley came in and told him he should be tried suddenly, and there were a great many Witnesses against him; and he would swear against him, because, says he, you have cheated my Master of Five Guineas, and won’t swear against Mr. Harvey. Mr. Att. General. (pros. counsel) Was you in the Room then? Meggison. I sat upon a little Box at the Bed’s Feet, and it was so dark he could not see me. Mr. Att. General. How came you to Newgate. Meggison. I have been a great many times in Newgate. Mr. Att. General. You dwell there sometimes, don’t you?
Chapter 5. Questions in the historical courtroom (1640–1760)
Meggison. Mr. Att. General
No, I never did. Are you a married Woman? [Trial of Francis Francia, 1716]
Notice that only one of the interrogatives, the tagged declarative, was grammatically conducive (i.e. it signalled its predisposition for a specific answer syntactically). Yet, in context, the how came-interrogative was not as innocuous as it first appears. Indeed, as I will explain in Section 10.4.2, Meggison appeared to infer an incriminatory element, and thereby answered with an ‘evade’ (i.e. she did not provide ‘yes’, ‘no’ or value for a missing variable explicitly, or answer in such a way that one could be inferred). Although we cannot know for sure that the Attorney General meant for his how came-interrogative to contain an incriminatory element, it is worth noting that his next question to Meggison implied that she had been an inmate at Newgate. The Attorney General’s polar interrogative is also interesting for, like the how came-interrogative, it may have been non-conducive in a different context. However, because of the questions that had preceded it, its function was clear – to once again call into question Meggison’s reputation, by suggesting that she associated with men who were not her husband. Like its modern counterpart, then, the context of the historical courtroom could affect the conducivity of questions to the extent that even apparently non-conducive questions took on additional ‘accusing’ and ‘controlling’ functions (cf. Harris 1984: 6, 22). This does not mean that all question-types automatically became conducive, of course. Indeed, as I will demonstrate at various points in this book, the controlling capacity of questions (in the historical courtroom, at least) had more to do with the institutionally/legally inscribed roles of the participants than any inherent characteristic of the question-types themselves (see, for example, 5.4.1 and Chapters 7–9). .. Non-periphrastic inversion A further characteristic of several ‘routinized’ interrogative types (including how know/came/come-interrogatives) was their non-periphrastic inversion. As explained in Section 2.4.1, the use of do to form questions was optional during the period covered by the SPC data. Compare, for example, ‘How know you this, that Mr. Coleman did take a Copy of these Instructions for that purpose as you say?’ (Trial of Edward Coleman, 1678) and ‘How do you know she was not in a Line with the Admiral?’ (Trial of Captain Ambrose, 1745). Rissanen (1999: 244) has suggested that, although the use of do in questions in
Questions and Answers in the English Courtroom (1640–1760)
the eighteenth century was very close to Present-Day English, non-periphrastic questions with verbs of high frequency (e.g. know, think, say, come and go) were still easy to find. Whilst my data appears to support this hypothesis, there are interesting variations in frequency depending on both the question-type and/or its ‘routinization’. For example, non-periphrastic inversion was a feature of how come/how came interrogatives throughout the period covered by the SPC (e.g. 1640–1760). Indeed, all twenty instances of how came-interrogatives and all 4 instances of how come-interrogatives were formed without the do. In comparison, only 2 of the 15 ‘How do/did you know . . . ?’ questions exhibited non-periphrastic inversion. Both instances occurred in the Period 3 data (i.e. 1640–1679). As the frequencies of interrogatives formed with do and did reveal (see Table 2 above), non-periphrastic inversion was less common with positive polar interrogatives than with wh-interrogatives (cf. Salmon 1965; Wikberg 1975). Positive polars tended to utilise ‘have’ and ‘had’ in non-periphrastic structures (e.g. ‘Have you your Pardon?’, ‘Had he such a Kingsman there?’). That said, non-periphrastic structures were more common with had-interrogatives than with have-interrogatives. Indeed, I found that the majority of hadinterrogatives (i.e. 19 out of 24) were formed without the do, but only 5 clear examples of non-periphrastic inversion involving have (as Table 2 reveals, 83 interrogatives in the SPC were formed with have). That said, the number of have-interrogatives involving non-periphrastic inversion would increase to eleven if we included the six instances of the following have-interrogative which occurred in several of the SPC trial texts: ‘Have you any more [witnesses]?’. The ‘issue’ with including them, of course, is that their apparent acceptability (or otherwise) will depend on one’s dialect (cf. Hughes & Trudgill 1987: 25). There was only one example of a polar interrogative utilising non-periphrastic inversion with one of the high frequency verbs highlighted by Rissanen (1999), ‘Know you of any Commision?’. Significantly, it came from one of the earlier trial texts (i.e. The Trial of Coleman, 1678). Do, did and doth interrogatives accounted for over half (that is, 52% or 385) of the 740 polar interrogatives in the SPC (see Table 2 for totals of each form). Significantly, several of the polar interrogatives formed with did were routinized (i.e. 118 out of 297). Did you know, did (. . . ) say/tell/hear/look were particularly common, suggesting that respondents were asked as much about what they said/heard as they were about what they or others did (see 3.3.2.1 and 10.4.3 for a discussion of the ways in which respondents’ ‘narratives’ in a courtroom differ from a Labovian narrative, in large part because of the question/answer mode of the examination sequences). A substantial number
Chapter 5. Questions in the historical courtroom (1640–1760)
of do-forms were also routinized. Indeed, 41 out of 84 adopted a ‘do you know’ format, and a further 18 adopted a ‘do you remember’ format. Some, like other routinized questions involving the modal can (e.g. ‘Can you remember/say. . . ’) had both a yes/no and wh- requirement (cf. ‘Do you know where . . . ?’, ‘Do you remember about what time . . . ?’, ‘Can you remember what . . . ?’, ‘Can you say how . . . ?’). Walker (1987: 73–75), discussing present-day data, believes that such questions (she describes them as yes-no/wh questions) are the most ambiguous as to intent, and the richest in manipulative possibilities in the courtroom, because they leave the respondent in a ‘no win-situation’: If the [respondent] gives you a WH answer to a Yes-NO/What question, you can fall back on the YN form and say, ‘Just answer the question Yes, or No. All I asked you was: Do you remember how fast the car was going.’ On the other hand, if the witness responds to the YN embedding questions with an unadorned, ‘Yes’, you can sit back, wait in silence, look quizzical, and then say, ‘Well? How fast was it going?’ . . . no matter which way he jumps, he’s wrong. Now, that’s control. (Walker 1987: 77)
Although I classified such questions as polar interrogatives, I found that respondents tended to treat these types of question in a similar way to whinterrogatives. By which I mean, most ‘answers’ provided the requested missing variable rather than ‘yes’ or ‘no’, as in the following example which, as before, is taken from the Trial of Francis Francia (1716) (please note that the italics are as in the original, but the underlining is mine): Then Mr. Everall was called. Mr. Hungerford. What do you know of White or Meggison? Everall. I know nothing of them. Mr. Ward. Do you know where the Prisoner’s Foreign Letters used to be left? His Letter always came to my House. Everall. Mr. Ward. Was he usually watchful for the coming in of his Letters, as if there was any Thing of Concern in them? Everall. No, they often used to lye some time before he call’d for them. Mr. Ward. How long did they use to lye? Everall. Sometimes three or four Days.
Notice that Hungerford again utilised an opening ‘what do you know ..?’ question. I will be discussing the extent to which interrogative choice is related to the individual style of a particular examiner at various points in this book (see, for example, 7.5).
Questions and Answers in the English Courtroom (1640–1760)
. Indirect interrogatives A number of the interrogatives in the SPC (i.e. 67) displayed an indirect format. The most common indirect interrogative form was whether (see Table 2, p. 140). However, less than half of the 47 whether-interrogatives (i.e. 19) functioned as ‘questions’ (e.g. as a means of getting A to supply a polarity decision or missing variable by saying/confirming/clarifying something about X (X = an action/event/behaviour/person)). Of the remainder, twenty were eliciting devices whose primary force was that of a ‘request’ or ‘require’, and eight were reports of questions previously spoken by another (‘questions’ that appear as part of narratives are discussed in detail in the following section). It is worth noting that the scribes often assigned question marks to a number of the whether-interrogatives whose primary force was that of a ‘request’ or ‘require’, which suggests that they were also understood as questions. Compare, for example, ‘Look upon this warrant, and tell us whether it is sign’d by you?’ (Trial of Baker, 1750) and ‘My Lord, Pray give me leave to ask this question, Whether there be any president for this?’ (Trial of Slingsby, Hewet and Mordant, 1658), which had the primary force of a ‘request’ and ‘require’ respectively, and the secondary force of a ‘question’.82 That said, scribal practice was inconsistent, by which I mean scribes did not always assign question marks, even when a speaker explicitly signalled a questioning force. Compare the Slingsby example (above), for example, with the following taken from the Trial of Thompson, Farewell and Pain (1682), ‘My Lord, I desire the same Question may be asked Rawson’s Wife; Whether the Blood did not run from the Body on the Table on the Floor, and down into the Cellar’. The last example is particularly interesting because of the fact that Rawson’s Wife confirmed that ‘the Blood and Water ran from the Table on the Floor’ in the following turn.83 Of the nineteen whether-interrogatives that functioned as ‘questions’, eighteen adopted a subordinated structure, as in this example taken from the Trial of Christopher Layer (1722), ‘I ask you, Whether you had shown those Bundles to any Body before that Time?’ (underlining is mine). The remaining whether ‘question’ appeared to be a non-subordinated ‘direct’ question, that is to say, no reporting clause was present: ‘Whether did you go from thence?’ (Trial of John Giles, 1680). However, the question that preceded the above (‘You went to Whetstones-Park, and what did you spend there?’), and the ‘answer’ to the whether-interrogative itself (‘Into Drury-lane.’) suggest that it may have been a misrepresentation of a where-interrogative (cf. ‘Where did you go from thence?’). This, in turn, would support Traugott’s (1972) claim that a ‘direct’
Chapter 5. Questions in the historical courtroom (1640–1760)
question with either a whether + verb + subject . . . or whether + auxiliary + subject + verb format was no longer possible by the EmodE period. The only other example of an utterance that began with whether was the following (for clarity, I include an indication of participant roles, and underline the relevant utterance): Mr. Ketelbey. (Defence counsel) I don’t know whether your Lordship will indulge us to ask the Witness a Question or two now. L. Ch. Jus. (Judge) Propose your Questions, and we will tell you. Mr. Ketelbey. (Defence counsel) Whether he hath any Offer of Pardon propos’d to him to induce him to give Evidence against the Prisoner at the Bar; which if he hath, we apprehend will invalidate his Evidence Lynch. (witness) No, Sir; I have no Promise of Pardon at all: I only do this out of Justice, to make what Reparation I can, and to save the Blood of many People. [Trial of Christopher Layer, 1722]
Notice that the defence counsel’s utterance is in response to the judge’s instruction to ‘propose [his] Questions’ so that the Court may determine whether they may be put to the witness. Consequently, the whether tends to function more like a reported clause than an eliciting device (see 5.3.1, below). In other words, it ‘informs’ rather than elicits.84 That said, the witness appears to have interpreted the ‘inform’ as though it was a question, for he provides both a polarity decision and an explanation for that polarity decision. Many of the ‘indirect’ interrogatives occurred as part of a narrative response. This was especially the case with if -interrogatives. Indeed, there was only one example of an if -interrogative being used as an eliciting device, and its primary force was that of a ‘request’ (‘I desire to know if he had Flyblows in his Eyes?’, Trial of Thompson, Farewell and Pain, 1682). Most of the if -interrogatives, then, were reports of questions that had occurred in previous exchanges (usually outside of the courtroom). In the following section, I examine the use of what I refer to as ‘questions in narratives’ in more detail.
Questions and Answers in the English Courtroom (1640–1760)
.. Questions in narratives Harris (2001: 60) has found that present-day courtroom responses, particularly witness responses, are not primarily action dependant (‘what the witness did’). Rather, they frequently involve both ‘what the witness said or saw’. Witnesses were also asked to account for what they had said or seen in the SPC data, with the result that their utterances often contained reported speech. Moreover, a proportion of this reported speech was made up of questions that they or a third party had asked – usually, at the time of the primary event (i.e. the event that the examiners were attempting to reconstruct). Indeed, of the 55 utterances in the SPC which I categorised as ‘questions in narrative’, 51 were witness utterances. Of the remaining, two were uttered by a judge, and two by those assigned an ‘injured party’ role. The injured parties’ utterances were similar to the witnesses, in that they reported speech that they themselves had heard or spoken during the primary event. In contrast, one of the reported questions utilised by a judge summarised questions that had previously been uttered in the context of the courtroom: This comes in Answer to Mr. Ward’s Question. He ask’d my Ld. Townshend, whether there was not some Promise that this Confession should not be made use of against the Prisoner? His Lordship gives this Account, and justifies himself, how he came to make use of it, and gives this as the Reason. [Trial of Francis Francia, 1716]
The other reported question summarised questions that others had reported using during the primary event (please note that the underlining is mine): But besides, that is not this Case: you are mooting upon Points that are not in the Case. When Mr. Harris came to Mr. Rookwood, and finding them in some Disorder, and being inquisitive what was the Occasion, he was sent to Counter; and when he discovered what they were to go about, he afterwards meeting Mr. Rookwood, says to him, Are we sent over to murder the Prince of Orange? says Rookwood, If I had known of this Design before I came from France, I wou’d have begg’d the King’s, that is, King James, Pardon, and desired to have been excused. Hereby he expresses his Knowledge of the Design, and what he was to do; and tho he disliked, yet wou’d obey Orders. [Trial of Ambrose Rookwood, 1696]
Harris (2001: 61) makes a useful distinction between the ‘knower’ in the courtroom (i.e. someone present at the event in question) and the ‘teller’ (i.e. someone who provides an account of what happened). She then goes on to explain
Chapter 5. Questions in the historical courtroom (1640–1760)
that the ‘teller’ and ‘knower’ do not always coincide in the modern courtroom. As the above extract highlights, this is also true of the historical courtroom. Indeed, the judge could not have known what Rookwood actually said (and it is debatable whether Rookwood himself could have recalled the exact words). Even so, the directness of the judge’s ‘reporting’ style suggests that these were, indeed, Rookwood’s words. As I will reveal in Chapter 10, a disjunction between ‘knower’ and ‘teller’ was often exploited by defence and prosecution lawyers so that witnesses’ accounts of ‘what happened’ could be shaped to conform to the ‘stories’ they were attempting to present to the juries. The witnesses’ utterances that were characterised as ‘questions in narrative’ tended to contain multiple interrogatives. Consequently, the total number of ‘reported’ interrogatives was 72.85 As with the judges, the structure of the witnesses’ ‘reported’ interrogatives was both direct and indirect. Moreover, because of the multiple interrogative formats, some of the questions utilised direct and indirect ‘reported’ interrogatives within the same utterance. L. Chief. Just. (Judge) What said Mr. Langhorn to you about the Commissions in his chamber? Mr. Oats. (witness) Not a word; but seem’d glad. L. Chief. Just. (Judge) Did you see them open upon his Table? or did you ask to see them? Oates (witness) They did not lye open upon the Table, but the Commissions were before him; I asked to see them. Mr. Langhorn (said I) I hear you have received the Commissions from Rome; he said, he had. Shall I have the honour to see some of them? He said, I might; he thought he might trust me; and so he might, because that very day I gave him an account of the Consult. [Trial of Edward Coleman, 1678]
Notice that the witness tended to utilise a direct format when reporting his own speech, and an indirect format when reporting Langhorn’s. Although the use of direct speech is often linked to faithfulness claims (e.g. Leech & Short 1981), the lapse of time between the primary event and Oates’s reporting of it means that the words that he purports to have uttered are unlikely to have been the exact words used. Nevertheless, they provide his account with a sense of authenticity. Although Oates’s style was fairly typical of the way in which witnesses utilised ‘reported’ questions, other patterns are also evident. For example, some witnesses utilised an indirect interrogative structure to report their own ques-
Questions and Answers in the English Courtroom (1640–1760)
tions, and a direct interrogative structure to report the questions of others, some mainly utilised an indirect structure for both themselves and others, and some a mainly direct structure, as in the following example taken from the Trial of Francis Francia (1716): Then Revel was sworn. Mr. Att. General. Do you know the Occasion of Mr. Buckley’s coming to Francia in Newgate; Give an Account of what you know of it. Revell My Lord, Mr. Francia , called to me one Day, and I think it was when I was in the Chappel, and told me, I believe I can do a Piece of Service to the Government; I believe I can suppress the publishing of the Shift shifted, I am sure I can: Pray let me speak with Mr. Buckley. Says I, if you would have me, I will go to him, and desire him to come. When would you speak with him? At any time, says he; then I believe the Morning is the best to meet with him; and the next Morning I went to him
Significantly, a witness’s use of direct speech to report the speech of others could have the effect of condemning the latter with their own words, as indicated by the following example taken from the Trial of Mary Moders (1663): [$ Jane Finch examined.] My Lord, there came a man and a woman one night, and knockt at my door; I came down, they asked to speak with one Jane Finch; I am the person, said I, We understand, said they, you know Mrs. Charleton now in prison; Not I, said I, I only went to see her there; said they, be not scrupulous, if you will go and justifie any thing against her, we will give you 5 l
Other strategies used by witnesses when giving evidence are discussed in detail in Chapter 10.
. Questions as a means of control Walker (1987: 62) identifies a firmly-held belief in the modern courtroom, namely, that witnesses should not be allowed to assume the role of initiator: ‘That role [is] one intrinsically associated with the role of questioner [and, as such], belongs to the attorney’. In other words, it ‘is a non-transferable marker of power’. There is evidence to suggest that the situation was very similar in the
Chapter 5. Questions in the historical courtroom (1640–1760)
EmodE courtroom, at least in the case of witnesses (but see 5.4.1 following). For example, Tiersma (2000) provides the example of Lady Henrietta Berkely, a witness at the Trial of Lord Grey (1682). As Tiersma (2000: 159) explains: Lord Grey had been accused of corrupting the morals of Lady Henrietta, apparently because he had helped the young woman run away from her tyrannical parents and secretly marry. Lady Henrietta took the stand. In response to questions, she testified that she had left home voluntarily. She was then told to sit down. ‘Will you not give me leave to tell the reason why I left my father’s house?’ she begged the court. ‘Will you not give me leave to speak for myself?’. One of the judges retorted: ‘You are, madam, to answer only such questions as are asked you pertinent to the issue that the jury are to try; and if the counsel will ask you no such questions, you are not to tell any story of yourself ’.
Although there were no examples of witnesses being dissuaded from using questions in the SPC data, they nevertheless utilised them rarely. Indeed, a mere 0.4% of the witnesses’ utterances (i.e. 6 out of 1,554) displayed a ‘questioning’ force (see Chapter 10). Moreover, only three were addressed to the primary examiners.86 Two of the witnesses’ interrogatives requested clarification from a main examiner, as when Elizabeth Crook asked the recorder to clarify ‘In whose chamber?’ after he had asked her whether she remembered seeing a fellow witness, one Richmond, ‘in the Chamber’ (Trial of John Giles, 1680). The other was addressed to a prosecution lawyer, and appeared to be rhetorical: Mr. Att. General. Barwell. Mr. Att. General. Barwell.
Are you acquainted with his Son’s Hand? How do I know that? Are you acquainted with his Son’s Hand? No, not at all. [Trial of Francis Francia, 1716]
Notice that the lawyer’s right to ask questions ensured that he could require the witness to ‘answer’ appropriately, albeit by repeating his initial question verbatim until that ‘appropriate’ answer was forthcoming. As previously highlighted, another means of achieving witness control is the selection of question types which narrow the choice of answers and/or allow the examiner rather than the respondent to phrase the evidence, e.g. declarative questions, negative polars and tagged declaratives (cf. Walker 1987: 58; Harris 2001: 59). The most popular ‘conducive’ interrogatives in the SPC were the declarative question and the negative polar. Yet, as Table 2 reveals, they each account for only 4.3% (i.e. 93) of the SPC interrogatives. The majority of these (e.g. 142 out of 186) were utilised by the primary examiners. For example, the recorders and judges addressed twenty-one declarative questions to witnesses
Questions and Answers in the English Courtroom (1640–1760)
in Period 4 alone. As established in Section 3.3.1, question-types that suggest – and try to lead the respondent to – a ‘correct’ answer tend to be ‘less requests for information than assertions of fact or accusations for which the [examiner] seeks agreement’ (Tiersma 2000: 165). This is most clear in declarative questions, as they are assertions with interrogatory (rising) intonation (see 2.1). Because of their declarative structure, declarative questions can be difficult to identify (we cannot rely on intonation patterns, for example). Fortunately, as the tendency in EmodE was to punctuate according to force, the majority of the declarative questions were given a question mark by the scribes: [Context: a witness, one William Richmond, has given evidence explaining how John Giles had arrived at his lodgings on the day he was supposed to have attacked John Arnold] Record. You were not out of the House all the while? Will. Richmond. No Sir, I was not out of it. Record. And you are sure that you did not see him again till he came to your door going to Bed? Will. Richmond. Yes Sir. [Trial of John Giles, 1680]
Although the inclusion of question marks proved very useful when identifying declarative questions, it is worth noting that the punctuation gives the scribe’s interpretation of the utterance, and, as such, may not always represent what the speaker actually intended. This may help to explain why scribes assigned question marks to some declarative questions in a trial text, but not to others (please note that the following example is taken from the same trial as the above extract): Recorder.
Mr. Arnold I would know one thing, will you undertake to Swear positively that this Person was one of the Persons who stept before you? Will you take it upon your Oath, That the Person, the Prisoner at the Bar, went before you? Mr. Arnold. I will take it upon my Oath as far as a Man can do, for one Man, ’tis possible, may be like another both by his Voice and his Face; I can Swear I believe he is the man. Mr. Thompson. You are Satisfied upon the first Sight that you had of him in the Countrey, that he was the Man. Mr. Arnold. Yes Sir, and he can tell you that by a very good token, for I had like to have run him through. [Trial of John Giles, 1680]
Chapter 5. Questions in the historical courtroom (1640–1760)
Consequently, an utterance (or part of an utterance) was marked as a declarative question in the SPC when the respondent appeared to answer in a way that suggests that s/he believed s/he was being asked a question, whether or not it was assigned a question mark. .. Questions as ‘commands’? The fact that some question-types ‘function more like assertions of fact or accusations for which [the examiner] seeks agreement’ may explain why several linguists recognise a ‘command’ element in questions. For example, Goody (1978: 23) states that ‘the most general thing we can say about a question is that it compels, requires, may even demand a response. It is this fact which leads to questions often carrying a strong command message’. Walker (1987: 59–60) goes even further: (In a legal setting), a question becomes an order that the respondent’s knowledge be displayed in an appropriate form . . . In fact [. . . ] it is as commands to deliver information, (and sometimes perform an act: ‘Can you look at this document?’) that most serious utterances by a lawyer to witness, whether structurally questions or not, must be understood. A statement such as ‘Your name is John Doe and you’re a civil engineer’, when made by an examiner, may not normally be met, as it might be in an ordinary exchange, with silence. Even though on the face of it no question is posed by such an utterance, when it is made in a [trial] a response which confirms or denies the proposition presented is expected.
Whilst Walker’s (1987) description helps explain why some declarative utterances are interpreted as questions in the context of the courtroom, it is important that we do not categorise every utterance or, indeed, every question, as having a ‘command’ element.87 For to do so would be to assume, like Walker (1987), that question-types are only utilised by the powerful. Although this may be an acceptable assumption to make when discussing the modern courtroom, it does not reflect the EmodE practice of allowing defendants to ask questions of witnesses as they gave their evidence (see 3.4.2). It is worth noting that, whilst the defendants addressed most of their ‘questions’ to the witnesses (i.e. 164 out of 185), they also addressed a few questions to the main examiners (i.e. 17). Moreover, they utilised the very questiontypes that are regarded by many as the most controlling or explicitly restrictive, namely declarative questions and negative polars:
Questions and Answers in the English Courtroom (1640–1760)
Mr. Mord. My Lord, shall I not know by what Law I am tryed, nor by what Act, nor by what Commission?
However, as will become clear in Chapter 9, a legally-sanctioned right to ask questions was not the same as having the ‘coercive’ power to ‘compel responsive answers’ from their respondents (cf. Walker 1987: 58). Indeed, many defendants were unable to procure the responses they sought (from witnesses or examiners). This suggests, then, that questions can be used to control, but only when asked by participants who not only have a legally-sanctioned right to ask them, but also a recognised position of authority within the courtroom itself. In other words, when three of French and Raven’s (1959) five classifications of power – ‘expert power’, ‘legitimate power’ and ‘coercive power’ – are in operation, that is, a participant’s specialist knowledge/expertise, a participant’s right to prescribe or request certain things, and a participant’s right to control negative outcomes by virtue of their role, age or status (cf. Section 1.5). The defendants’ use of so-called ‘conducive’ questions also suggests that 1. There is a scale of conducivity within a particular question-type as well as between the different question-types (cf. Woodbury 1984), and 2. The level of the conducivity within a particular question-type is likely to be dependent on ‘the real or apparent dominance of the speaker’ (Piazza 2002: 511).88 This is not to say that questions automatically become ‘demands to deliver information’ when asked by the powerful (cf. Walker 1987: 59–60), or that socalled ‘conducive’ questions are always used coercively. Indeed, the recorder in the Giles trial (1680) utilised a declarative tag to indicate his surprise at having misunderstood a witness’s prior testimony: [Context: The defendant was attempting to explain to the recorder that he had misunderstood some previous information given by the witness, one Ann Beron] Giles.
My Lord, she don’t say she was with us all the while, but we came to an House where she was, and several other People our Neighbours. Recorder. (to Giles) She say you did go out sometime [. . . ] Recorder. (to Ann) [. . . ] Now see whether I mistake you. Ann. Yes you do mistake me. Recorder. (to Ann) He went out, did he?
Chapter 5. Questions in the historical courtroom (1640–1760)
Ann.
Yes he went out after we came into the City, he and some others, and then they came back to me again in two or three hours.
The relationship between questions and power will be discussed at various points in this book (see, for example, 7.5 and 9.4). .. Countering conducivity Another important fact that is not always spelled out by linguists dealing with conducivity and the courtroom relates to the counter-strategies of the respondents. Put simply, the fact that conducive questions ask the respondent to ‘conform to the underlying presupposition of the question’ (Shuy 1995: 208) does not ensure that they automatically do so. Indeed, they may ‘answer’ in such a way that prevents the examiners from successfully imposing their own interpretation on the evidence (this, in turn, should persuade us of the need to examine responses to questions as well as the questions themselves). For example, in the following extract taken from the Trial of John Mordant (1658), a prosecution lawyer switched to negative polar interrogatives when the witness did not provide the ‘appropriate’ information to a relatively ‘broad’ whatinterrogative (e.g. ‘What did he tell you concerning his being entrusted by the King therein’). Yet, Stapely was not immediately forthcoming even when faced with conducive questions: Mr. At. G. Did he not say that he had Commissions from the King? John Stapely He did not tell me so, but I have heard him say others had had Commissions, two other Gent. in Surrey Mr. At. G. Did he not encourage you thereto? what Arguments did he use? John Stapely He spoke to me of it several times. Mr. At. G. After what manner? John Stapely Onely in commendation of the thing; I heard him say that if there were a necessity, Surry folks would come into Sussex to assist them. [Trial of John Mordant, 1658]
Indeed, Stapely’s response to the Attorney General’s second utterance (above) was particularly vague when one considers that he had been asked: (i) to confirm that he had been ‘encouraged’ to accept a ‘Commission from the King’, and (ii) to provide a summary of the ‘Arguments’ that had been used to persuade him. His ‘answer’ to the Attorney General’s second narrow what-
Questions and Answers in the English Courtroom (1640–1760)
interrogative, ‘After what manner?’, was also carefully worded so that it was not self-incriminating.
. Questions as part of a questioning sequence As the above extract from the Trial of John Mordant (1658) reveals, the primary examiners often pursued a line of questioning as opposed to asking one or two questions in isolation (cf. the defendants’ use of questions; see 9.4). This type of practice (or ‘strategy’) suggests that the best way to interpret interrogatives is not in isolation but, rather, as part of a questioning sequence. Consequently, in this and following sections, I examine the ‘composition’ of the majority of the questioning sequences in the SPC data, and how the latter was affected, in turn, by the type of examination sequence (e.g. examination-in-chief as opposed to cross-examination). Questioning sequences within the SPC were predominantly a mixture of wh- and polar interrogatives. This pattern appears to have been quite common in the courtrooms of that period, as I found similar wh- and polar interrogative sequences in the Salem data (Archer 2002: 14). That said, there were some noticeable differences. Firstly, the Salem magistrates tended to elicit details from witnesses while simultaneously restricting them to minimal responses, as this extract taken from the ‘Examination of Sarah Cloyse and Elizabeth Proctor’ (SWP: 659) reveals: Q. Mary Walcot! Who hurts you? A. Goody Cloyse. Q. What did she do to you? A. She hurt me. Q. Did she bring the book? A. Yes.
Secondly, the successive use of wh-questions, in particular, signalled both the magistrates’ control over what was said and talked about at Salem, and their acceptance (as fact) of the answers given. Notice, for example, that the ‘fact’ that Goody Cloyse had hurt Mary is included as part of the propositional content of ‘what did she do to you’ (Archer 2002: 14), i.e. it is presupposed. Although both phenomena are evidenced in the SPC data, they are not as marked. Indeed, examiners occasionally utilised a series of wh-interrogatives to challenge/seek clarification about a witness’s prior evidence, as in the following extract taken from the Trial of Edward Coleman (1678):
Chapter 5. Questions in the historical courtroom (1640–1760)
L. Chief. Just. Mr. Oates L. Chief. Just. Mr. Oates
Did you open the Letters? Yes? When saw you the Letters at St. Omers? I saw the Letters at St. Omers in the month of January; then they came from Rome; and after I received summons to be at this Consult in the month of April; and accordingly we came over. L. Chief. Just. VVhat time did you come over? Mr. Oates In the month of April. L. Chief. Just. VVhat time went you to Langhorns chamber? I cannot reconcile the months together.
The reader will have noticed the question mark in Oates’s initial response. I believe that its presence is not accidental but, rather, an attempt by the scribe to indicate the witness’s surprise at being asked to repeat information that he had already supplied. As the following extract reveals, the Lord Chief Justice had asked the same question when Oates initially informed him of a letter that the defendant had apparently given to him: L. Chief. Just. Mr. Oates L. Chief. Just. Mr. Oates
In what language was it written? In plain English words at length. Directed to whom? It was directed to the Rector of St. Omers, to give him intelligence how affairs went in England. L. Chief. Just. Did you break it open? Mr. Oates I was at the opening of it, and saw it and read it. There was a Letter to Father Lechees, which was superscribed by the same hand that the treasonable Letter of news was written, and the same hand that the recommendation to Playford was written in. When this Letter was open there was a Seal fixt, a flying Seal and no mans Name to it.
Notice that the Lord Chief Justice’s initial polar interrogative ‘Did you break it open?’ received a long (e.g. 66-word) response from the witness, but the repeat polar ‘Did you open the Letters?’ was confirmation-seeking as opposed to information-seeking, and thus only received a one-word response. This suggests that polar interrogatives should be seen as more or less restrictive, like wh-interrogatives (see 5.2–5.2.1). It also suggests that the conducive force (or ‘restrictiveness’) of question-types is not just dependent on the real or apparent dominance of the speakers, but on: (i) the specific questioning function of the interrogative (e.g. clarification-seeking as opposed to information-seeking),
Questions and Answers in the English Courtroom (1640–1760)
(ii) the questioner’s goal[s], and (iii) the interrogative’s positioning in the questioning sequence. In regard to the latter point, polar interrogatives that initiated (or occurred toward the beginning of) a questioning sequence tended, on the whole, to procure longer responses from respondents than polar interrogatives that occurred mid-sequence, as demonstrated by the following extract: Then Lucy White was sworn. Mr. Hungerford. Was you by, or in hearing, when any Offers were made to the Prisoner. White. Upon the Seventh of September I went to see the Prisoner in Newgate. He told me Mr. Buckley was to be there with him, and desired me to conceal my self in the Room, that I might hear what past, and I did so. When Mr. Buckley came he spoke about one Flint; and afterwards Mr. Buckley ask’d him several Questions about Mr. Harvey. He said he knew nothing but that he was innocent. Mr. Buckley told him he must swear right or wrong for the Government; if he would not, he himself would swear High Treason against the Prisoner; for he had taken Money of my Lord Townshend, and done nothing for it. Mr. Hungerford. Did you see any Thing of two Warrants Mr. Buckley had at that Time? White. No. Mr. Hungerford. Did Mr. Buckley see you? White. No, I conceal’d my self under the Feet of the Bed. Mr. Att. General. You say this was the Seventh of September. What Year? White. In the Year 1716. [Trial of Francis Francia, 1716]
This was also the case with wh-interrogatives. In other words, wh-interrogatives that initiated (occurred towards the beginning of) a questioning sequence tended to procure longer responses from respondents than wh-interrogatives that occurred mid-sequence.
. Examinations-in-chief and cross-examinations The restrictiveness of a particular question-type was also dependent, in part, on the type of examination sequence. In other words, interrogatives utilised during cross-examinations tended, on the whole, to be more restrictive than
Chapter 5. Questions in the historical courtroom (1640–1760)
interrogatives utilised during examinations-in-chief. This is probably due to the different purpose of cross-examinations, for witnesses and defendants were mainly questioned about evidence they had already given (indeed, in a modern court of law, new evidence cannot be introduced during a crossexamination sequence). Moreover, there is plentiful evidence to suggest that the lawyers’ primary goal during such sequences was to undermine what the witnesses/defendants had previously communicated. This did not mean that lawyers began by asking overtly manipulative questions. Rather, they tended to build towards their primary goal: [Context: The witness, one Mr. Buckley, had been asked (by the prosecution counsel) to give an account of Francia’s examination before Lord Townshend and Mr. Secretary Stanhope, which he had been responsible for taking down. Mr Buckley had informed the court that Francia had refused to swear on the New Testament. Instead, ‘he took another Book out of his Pocket’ to swear on. He was then questioned by the defence team . . . ] Mr. Denton. Mr. Buckley. Mr. Denton. Mr. Buckley. Mr. Ward. Mr. Buckley. Mr. Ward. Mr. Buckley. Mr. Ward. Mr. Buckley Mr. Ward. Mr. Buckley. Mr. Ward. Mr. Buckley.
Was he examin’d at any time after? Yes. Was you present then? No. How long were they [a book and some letters belonging to Francia] in your Custody? From the time that Mr. Walpole went abroad, till he came back again, and then I deliver’d them back to him. Were they in your Custody when Mr. Jones was under Examination? I can’t tell; but I never did show them to him. Were they not deliver’d out on that Occasion? No, they were not deliver’d out by me. You say you read the Examination to him. Did not he desire to read it himself? I don’t remember it. Was he not refused to read it? No, upon my Soul. [Trial of Francis Francia, 1716]
Notice that the witness was questioned by two defence lawyers in the above extract (see 5.6.2 following). Mr. Denton began by using two polar interrogatives that, although non-conducive, were quite restrictive. Mr. Ward followed these with a series of wh-interrogatives and positive and negative polar interrogatives
Questions and Answers in the English Courtroom (1640–1760)
that, taken together, assumed that Francia did desire to read his examination transcript but was refused the privilege. Once again, this nicely illustrates that we cannot treat individual questions in isolation in the courtroom but, rather, we must view them as part of a strategy. It also highlights the need to understand that lawyers, in particular, began to utilise interrogatives as a means by which they could establish a ‘credible’ story for the jury during this period (see, in particular, Chapter 8 and 10.4.1). The same lawyer, Ward, was able to adopt a strategy that was slightly less controlling when examining ‘friendly’ witnesses during examination-in-chief. Then Mr. Everall was called. Mr. Hungerford. What do you know of White or Meggison? Everall. I know nothing of them. Mr. Ward. Do you know where the Prisoner’s Foreign Letters used to be left? Everall. His Letter always came to my House. Mr. Ward. Was he usually watchful for the coming in of his Letters, as if there was any Thing of Concern in them? Everall. No, they often used to lye some time before he call’d for them. Mr. Ward. How long did they use to lye? Everall. Sometimes three or four Days. Mr. Ward. Were they kept up close till he called for them? Everall. No, they lay in a publick Room, so that any one might see them.
Notice, for example, that the questioning sequence began with a broad whatinterrogative. That said, Ward’s interrogatives (a series of polar interrogatives and a restrictive how long interrogative) were designed so as to extract only that information from Everall that helped establish part of the defence’s story (in this case, that Francia’s ‘traitorous’ letters could not have been too traitorous, or Francia would have been more secretive about them). Significantly, Tiersma (2000: 161) suggests that this style of questioning (e.g. from open-ended to increasingly coercive or controlling questions) typifies direct examination sequences in today’s courtrooms. .. Information-seeking questions: is it always ‘new’ information? The extracts of Ward’s questioning style highlight a related issue, namely, that some information-seeking questions, but especially those utilised by lawyers in
Chapter 5. Questions in the historical courtroom (1640–1760)
direct examination sequences, were not information-seeking in the sense advocated by Searle (1969). By this I mean, although they sought information, that information would have been new to the judge and jury but not to the questioner. Indeed, the lawyers would have had to have an idea of the ‘answers’ that ‘friendly’ witnesses were likely to give in order to be able to shape their questions so that they elicited information appropriate to their ‘story’. In a very real sense, then, the lawyers were asking the questions on behalf of the jurors, which means that the jurors, in turn, were the EmodE witnesses’ real addressees. In a contemporary courtroom, the witnesses may signal their awareness of the real addressee by turning to the jury when giving an answer (Tiersma 2000: 168). Such extralinguistic clues are not retrievable from the SPC data. However, witnesses and defendants were occasionally instructed to address their ‘account’ to the Court and/or the jury (e.g. ‘Pray Sir, will you give the Court and the Jury an Account of this Book and those Letters; and how, and when they were brought to you?’, Trial of Francis Francia, 1716). .. A blurring of the sequences Although I have stated that interrogatives were at their most restrictive during cross-examination sequences, it is worth noting that there was not the strict division between examination-in-chief and cross-examination in the courtroom of the EmodE period that there is in the modern courtroom (cf. Section 3.2.1). Indeed, prosecution counsels and defence counsels appear to have been permitted to intervene in the others’ questioning session in a way that would be inconceivable today (one explanation for this is that cross-examination was a developing discourse practice for lawyers at this time; see Chapter 8 and 10.4.1). For example, in the following extract taken from the Trial of Francia (1716), the defence lawyer only managed to elicit one response from the witness before the prosecution lawyer intervened: Then Simon Francia was sworn. Mr. Hungerford. Pray give an Account what you know of the Prisoner, what Country Man he is, and where he was born? Simon Francia. He is my Brother, he was born in France at Bourdeaux. Mr. Att. Gen. Are you Elder or Younger than he? Simon Francia. I am Four Years Elder. Mr. Att. Gen. How then can you remember what was done when you was Four Years old?
Questions and Answers in the English Courtroom (1640–1760)
Simon Francia. I can’t remember the Day of his Birth, but I was bred up with him at Bourdeaux, we were all born in the same House.
The Attorney General’s interruption at the point when Simon Francia informed the court that his brother was a Frenchman is significant, because, if the court had accepted Francia’s ‘alien’ status, it would have effectively meant that he could not have committed the treasonable acts of which he was accused.89 The prosecution lawyer’s strategy, therefore, was to pre-empt the defence counsel’s attempt to have Francia acquitted by questioning the accuracy of Simon Francia’s recall, given his tender age. Notice, however, that that strategy was achieved over a number of turns (e.g. a disjunctive interrogative that asked Francia to state which brother was the eldest, and a wh-interrogative that specifically asked how Francia was able to remember). Significantly, refuting an argument or appeal before it is even presented is seen as an effective way of ‘inoculating’ the audience in today’s courts: It seems to work by motivating the listener to think about counter-arguments while hearing the opposing evidence or appeal. This may be done by explicitly providing ready-made counter-arguments on specific points, or by stimulating the listener to generate them for him or herself. (Lloyd-Bostock 1988: 46)
Lloyd-Bostock (1988) goes on to raise a related issue, namely, whether the order of presentation at a modern trial gives an advantage to the prosecution (or plaintiff) because they go first, or the defence because they go last. The fluidity of the EmodE courtroom suggests that our EmodE ancestors did not have to be concerned with either primacy or recency effects. But the defence teams were at a disadvantage for other reasons, the most pertinent of which were (i) not being able to make open/closing statements to the jury, and (ii) having to prove their clients’ innocence (cf. the modern courtroom, where a defendant is presumed innocent, and guilt must be proven ‘beyond reasonable doubt’). The consequences of these disadvantages will be explored in more detail in Chapters 8 and 12.
. A sociopragmatic approach to questions: Investigating user as well as use Although my focus has been on the formal aspects of questions, I have been careful to highlight the limitations of a purely formal approach at various points throughout this chapter, not least because one cannot fully appreciate
Chapter 5. Questions in the historical courtroom (1640–1760)
the different functions that questions serve in the historical courtroom unless one also considers the role of the user, and the user’s ultimate aim. For example, I am aware that a large part of my findings thus far display a common theme of modern courtroom literature: namely, the control achieved through questions (cf. Atkinson & Drew 1979; Harris 1984). Given the fact that the role of questioner is typically occupied by a participant with an institutionally/legally recognised status and thus the authority to compel responses, this is not surprising. But, as I have highlighted, a concentration on the power of questions to control can be potentially misleading in the historical courtroom for, unlike their modern counterparts, defendants were also permitted to ask questions (see 3.4.2 and 5.4.1). In Chapter 6, then, I will be concentrating more explicitly on the user. I begin with a breakdown of the participants according to the role that they adopted, and a discussion of the interactional intent of the six main participants’ utterances. I then identify the main questioners in the SPC, so that I can go on to describe the strategic use that they made of questions in the historical courtroom, and assess the extent to which the distribution figures for questions mirror the power distribution in the courtroom of the EmodE period in general.
Chapter 6
Interactional intent of participants’ utterances
. Investigating questions from the perspective of the user Chapter 5 accounted for the formal aspects of the various question-types that appeared in the SPC data, whilst highlighting the limitations of a purely formal approach. For example, I explored the extent to which the role of the user dictates the ‘potency’ of questions (to compel/shape a response), and concluded that the different functions that questions serve can only be fully appreciated when the role of the user, and the user’s ultimate aim are also taken into consideration. This chapter also provides an overview of the period covered by the SPC data as a whole (1640–1760), but its focus is more explicitly on the user. In particular, I investigate: 1. The discursive norms of interaction in operation in the historical courtroom (e.g. who talks to whom, in the SPC overall and in each sub-period). 2. The make-up of that interaction (e.g. the proportion of ‘questions’ and ‘informs’, compared to ‘requests’, ‘requires’ and ‘counsels’). 3. The nature of the participants’ relations (e.g. whether there is evidence of change over the period covered by the SPC data, especially in terms of participants’ active involvement). I begin by listing the participant roles adopted in the sixteen trial texts, and documenting which participant roles were the most active (see 6.2 following). I then examine the interactional intent of the main participants’ utterances (6.2.1–6.2.6) to determine (i) the most active (re)initiators, and (ii) the most active questioners (6.3). I do so to highlight that initiator and questioner were not ‘non-transferable marker[s] of power’ in the courtroom of the EmodE period (cf. Walker 1987: 62), not least because four eliciting devices (e.g. ‘question’, ‘request’, ‘require’ and ‘counsel’) were utilised by ‘powerful’ and ‘powerless’ participants alike in the SPC data (albeit to varying degrees).
Questions and Answers in the English Courtroom (1640–1760)
. Participant roles evidenced in the SPC Our discussions thus far have centred on a handful of participant roles (e.g. judges, courts, recorders, defence and prosecution counsels, defendants, witnesses and juries). With the exception of the juries, these roles were the most frequently utilised roles in the SPC data (see Table 3 below). The fact that the primary examiners and respondents were the most active suggests that the Early Modern Courtroom shared many similarities with its contemporary counterpart. But there are striking differences, both for the 120-year period covered by the SPC, and for the individual sub-periods that make up the latter. These will become obvious as we look at each of the main participant roles in turn (see 6.2.1–6.2.6, following). As Table 3 also reveals, the primary examiner and respondent roles were not the only participant roles utilised in the SPC data. Indeed, a further twelve roles can be identified. Ten of these (e.g. court official, crier, injured party, king’s counsel, member of court, member of Table 3. Frequency of utterances, according to participant role, and ranking order (figures in brackets show percentages) Participant role
Period 3 Rank (1640–1679)
Witness Judge Prosecution counsel Defendant Defence counsel Court Recorder Court official Injured party Crier Plaintiff Jury Onlookers Unknown King’s counsel Member of court Wife Serjeant Roll Serjeant-at-Law Problematic Total
191 (20.2) 286 (30.3) 96 (10.2)
3rd 1st 4th
547 (35.0) 249 (15.9) 245 (15.7)
1st 3rd 4th
235 (24.9) – 47 (4.9) 6 (0.6) 52 (5.5) – 2 (0.2) 12 (1.3) 9 (1.0) 5 (0.5) – 1 (0.1) – 1 (0.1) 1 (0.1) 1 (0.1) – 945
2nd
100 (6.4) 255 (16.3) – 114 (7.3) 4 (0.3) 12 (0.8) 25 (1.6) – – 3 (0.2) 5 (0.3) 2 (0.1) – – – – 1 (0.1) 1,562
6th 2nd
6th 9th 5th 11th 7th 8th 10th = 11th = 11th = 11th = 11th
Period 4 Rank Period 5 Rank SPC (1680–1719) (1720–1760) (1640–1760)
5th 10th 8th 7th
11th 9th 12th
13th
816 (46.9) 40 (2.3) 224 (12.9)
1st 1,554 (36.6) 6th 575 (13.5) 3rd 565 (13.3)
138 (7.9) 5th 473 (11.1) 143 (8.2) 4th 398 (9.4) 349 (20.0) 2nd 396 (9.3) – 120 (2.8) – 56 (1.3) 27 (1.6) 7th 39 (0.9) – 27 (0.6) – 12 (0.3) 1 (0.05) = 9th 10 (0.2) – 8 (0.2) 1 (0.05) = 9th 6 (0.1) – 3 (–) 2 (0.1) 8th 2 (–) – 1 (–) – 1 (–) – 1 (–) – 1 (–) 1,741 4,248
Chapter 6. Interactional intent of participants’ utterances
jury, onlookers, plaintiff, sergeant roll and sergeant-at-law) directly related to the courtroom. The remaining roles – that of ‘husband’ and ‘wife’ – occurred in the Trial of Mary Moders (1663). In total, participants adopting the above roles utilised 4,241 utterances in the SPC data. A further seven utterances are accredited an ‘unknown’ or ‘problematic’ label, making 4,248 utterances in total. Table 3 provides a breakdown of the number of utterances utilised by each participant role. Please note that the ordering of the participant roles reflects their activity in the SPC as a whole. However, I also include a rank ordering for each individual period. Sections 6.2.1–6.2.6 (following) outline the interactional intent of the main participants’ utterances. As explained in Chapter 4, by ‘interactional intent’ I mean the position an utterance occupies in the discourse, and what the speaker intends to achieve by it (cf. initiating a new exchange and responding to the direct elicitation of another, for example). Definitions of the six possible values subsumed within the interactional intent field are given in 4.4.2. .. The interactional intent of the witnesses’ utterances The witnesses were the most active participants in the SPC, with 36.6% of the utterances (that is 1,554 out of 4,248). Predictably, their participation was consistent throughout each sub-period (see Table 3 above). Moreover, the bulk of their utterances (i.e. 92.5% or 1,437 out of 1,554) were ‘responses’, e.g. they provided information that had been directly elicited by another participant. Most of these, in turn, functioned as ‘answers’, e.g. they were directly elicited by questions. As Table 4 (below) reveals, the remainder of the witnesses’ utterances were mainly made up of ‘reports’ and ‘follow ups’ (as explained in 4.4.1, ‘reports’ state information that has not been elicited, and ‘follow ups’ provide follow-up/feedback to a preceding utterance in some way). These results, and the small number of (re)initiations utilised by the witnesses (by which I means eliciting devices that initiated a new exchange or reinitiated an existing exchange) suggest that the primary function of the witnesses’ utterances was as it is today, to ‘inform’. The witnesses’ utterances will be examined in more detail in Chapter 10. .. The interactional intent of the judges’ utterances The judges were the second most active participants in the SPC data, with 13.5% of the utterances. Moreover, as the ‘initiation’, ‘response-initiation’ and ‘follow-up initiation’ columns of Table 4 reveal, a substantial proportion of
Questions and Answers in the English Courtroom (1640–1760)
Table 4. The main SPC trial participants, and the interactional intent of their utterances (figures in brackets show percentages) Interactional intent Total no. Participant Initiation Response- Response Report Follow Follow up- Problem- utterances role initiation up initiation atic (incl. %) Witness Judge Prosecution counsel Defendant Defence counsel Court Recorder Others / Unknown Total
3 171 224
6 66 7
1,437 52 4
90 44 95
14 42 5
1 197 224
3 3 6
1,554 (36.6) 575 (13.6) 565 (13.3)
114 143
52 5
69 27
51 50
26 18
160 153
1 2
473 (11.1) 398 (9.4)
40 39 66
1 2 3
1 2 54
3 14 21
1 8 11
350 55 12
0 0 0
396 (9.3) 120 (2.8) 167 (3.9)
800 (24.5)
142 (11.0)
1,646 (29.1)
368 124 (11.2) (5.3)
1,153 (18.7)
15 (0.2)
4,248 (100)
these utterances (i.e. 171 + 66 + 197 = 434 or 75.5%) were (re)initiations. As the bulk of the SPC data relates to examination sequences, and examination sequences are generally made up of questions and answers, it would be understandable if one assumed that judges were the most active ‘questioners’ of witnesses and defendants (but see 6.3 following). This would represent a significant difference from today’s courts, of course, as the defence counsels and prosecution counsels tend to be the most active ‘questioners’. However, it would support historians’ claims that the majority of defendants defended themselves in the EmodE period, and prosecution lawyers were only present for (i) important State trials from the Tudor period onwards, and (ii) treason trials from the late 1690s (Beattie 1986: 42, see also 3.4.1). Yet, the above assumptions are potentially misleading. Firstly, it does not tell us what type of eliciting devices that the judges were utilising, or to whom they were addressed. This is especially important given the fact that (re)initiations in the EmodE courtroom tended to fall into four categories: ‘counsel’, ‘question’, ‘request’ and ‘require’. Consequently, I provide an overview of the types of (re)initiations utilised by the main (re)initiators in Section 6.3 (following), and document the judges’ main addressees in the various subperiods in Chapter 7. Secondly, it does not take into account that the judges’ active involvement in the trials’ production peaked in Period 3, and declined thereafter. Indeed, as Table 3 (above) reveals, the judges began as the most active participants during 1640–1679, with 30.3% of the utterances, but their in-
Chapter 6. Interactional intent of participants’ utterances
volvement dropped to a mere 2.3% during the period 1720–1760. I examine the judge’s changing role in some detail in 7.1–7.1.2. In particular, I demonstrate how the judge’s role in Period 3 differed significantly from that we associate with contemporary judges, but that a ‘presiding’ role was becoming evident by Period 5 (cf. Sections 3.2.1 and 3.4.1). In other words, the judges’ active participation was becoming increasingly restricted to interchanges with the defence and prosecution counsels (e.g. when considering and deciding upon legal issues), and the jury (e.g. when instructing the latter as to the correct view of the law relevant to the case, and when summing up after the prosecution and defence barristers have submitted all their evidence, etc.). .. The interactional intent of the prosecution counsels’ utterances The prosecution counsels were the third most active participants in the SPC data. Like the judges, most of their 565 utterances (i.e. 224 + 7 + 224 = 455 or 80.5%) initiated a new exchange or reinitiated an existing exchange (see ‘initiation’, ‘response-initiation’ and ‘follow up-initiation’ columns of Table 4, above). As I will demonstrate when I discuss the prosecution counsels’ strategies in more detail in Chapter 8, the total number of (re)initiations shows a steady increase from sub-period to sub-period, the bulk of which were ‘questions’ that the prosecution counsels addressed to witnesses. This means that prosecution counsels were becoming increasingly involved in the examination of witnesses at the same time as the judges were becoming less involved. Yet, their involvement with the examination of defendants decreased. Possible reasons for this are discussed in Chapter 12. .. The interactional intent of the defendants’ utterances The fourth most active ‘role’ in the SPC data was that of the defendant. Given the judges’ assumption that, as defendants knew most about the alleged incident, they were in the best position to state ‘what happened’, it is perhaps not too surprising that defendants should figure so strongly. This is especially the case in Period 3, of course, as the defence counsels were absent (see Table 3 above). However, two features, in particular, suggest that the defendants’ role during the period covered by the SPC data was quite distinct from the role of a defendant today. Firstly, the ‘response’ column of Table 4 reveals that only 69 of the defendants’ 473 utterances functioned as responses to the initiating exchanges of others (e.g. provided information that had been directly elicited by another participant). This, and their high number of (re)initiations (i.e. 114 +
Questions and Answers in the English Courtroom (1640–1760)
52 + 160 = 326 or 68.9%) suggest that the defendants’ primary strategy was not merely answering the allegations put to them (cf. the witnesses, above). Secondly, although like the EmodE judges, their active participation seems to have decreased as the EmodE period progressed, it is worth noting that Periods 4 and 5 defendants still made use of a variety of eliciting devices, just as their Period 3 counterparts had done. The defendants’ use of eliciting devices is not unduly surprising given their right to question witnesses, of course (cf. 3.4.2). What is surprising, however, is their continued use of (re)initiations in spite of the presence of the defence counsels, whom we would expect to speak on the defendants’ behalf. As both features are worthy of further consideration, I provide a breakdown of the types of (re)initiations utilised by the defendants in Section 6.3, following, so that I can discuss the special role of the defendant in detail in Chapters 9 and 11. .. The interactional intent of the defence counsels’ utterances The defence counsels were the fifth most active participants in the SPC data, with 9.4% (i.e. 398 out of 4,248) of the utterances (see Table 4). Like the judicial examiners and prosecution lawyers, most of these utterances (i.e. 143 + 5 + 153 = 301 or 75.6%) were (re)initiations, helping to establish them as one of the primary (re)initiators in the SPC (see 6.3 following). Although the defence counsels involvement may appear quite small to the reader, it is worth noting that the above percentage figure of 9.4% actually relates to two sub-periods (as previously pointed out, the defence counsels were absent in Period 3: see also Table 3, above). It is also worth noting that, in spite of historians’ claims that defendants were usually without counsel until the early to mid-eighteenth century (cf. Beattie 1986), the SPC data suggests that defence lawyers were active for some considerable time before laws allowing defendants the right to counsel were enacted (Fox 1870: 586). Indeed, defence counsels appear in the Trial of John Giles (1680), and the Trial of Nathaniel Thompson, John Farewell and William Pain (1682), which predate the Treason Act of 1696 by some fifteen years.90 The figures for the defence counsels also produced another unexpected finding, namely, a decrease in participation from Period 4 to Period 5 (e.g. from 16.3% of the total utterances to 8.2%; see Table 3, above). Indeed, the defence counsels were only slightly more active than the defendants they were defending in Period 5. Although it would be dangerous to come to any firm conclusion based on such a small number of texts, I will offer several (potentially overlapping) explanations: Firstly, the Period 4 data is not representative of the EmodE period as a whole. By which
Chapter 6. Interactional intent of participants’ utterances
I mean, defence counsels were not as actively involved in the examination of participants as the data implies (this would correspond to historians’ claims; cf. Beattie 1986); Secondly, the role of the defence lawyer was not yet ‘fixed’. In other words, the defence lawyer was becoming (but was not yet established as) a main examiner. This would explain the fluctuation in figures, whilst allowing for the fact that most of the defence counsels’ utterances were (re)initiations in both periods; Thirdly, the Period 5 defence counsels and the defendants they represented were working more closely together than they had in Period 4. According to historians, this would also be unusual, as defendants were believed to have little direct involvement with their trials, in practice (cf. Beattie 1986: 350). These explanations will be explored in more detail when I examine the defence counsels’ utterances in Chapter 8 (see also Chapter 12). .. The interactional intent of the Courts’ and recorders’ utterances The sixth and seventh most active participants in the SPC data were the Courts and the recorders. As previously explained (see 5.2), the Courts and the recorders adopted a similar role to the judges. Consequently, many of their utterances were similar (in both form and function) to the judges’ utterances. Indeed, the only text that showed significant variation from the pattern established by the judges was the Court-martial of Captain Ambrose (1745). As its title implies, the text relates to a court martial hearing, as opposed to a trial hearing, and the ‘Court’ in such hearings tended to be made up of a group of officers (their rank depending on the rank of the defendant). More importantly, the hearing tended to follow a strict format, namely, a deposition was initially read to all present, and then the Court asked witnesses a series of questions about the evidence they had given in that deposition. This meant that the hearing had a stronger ‘question-and-answer’ element than the other SPC texts, and helps to explain (i) the high number of (re)initiations utilised by the Courts (as they addressed question after question to the witnesses; see Table 4 above), and (ii) why the Courts were the main ‘questioner’ in the SPC (see Table 5 below). I will discuss the role of the Court in the Ambrose trial in detail in Chapter 7 (see, in particular, 7.3. and 7.6). In the following section, I highlight the other main questioners in the SPC, and give readers some idea of the ratio of their questions to other eliciting devices.
Questions and Answers in the English Courtroom (1640–1760)
. The five main questioners in the EmodE courtroom (1640–1760): The courts, the prosecution counsels, the judges, the defence counsels and the defendants As Table 5 (below) reveals, the three main (re)initiators in the SPC, the prosecution counsels, the judges and the Courts, were also the three main questioners. However, their ranking was different.91 Indeed, the Court was the most active questioner (with 388 questions), the prosecution counsel, the second most active questioner (with 351 questions), and the Judge, the third most active questioner (with 314 questions). The fourth most active questioner was the defence counsels (with 251 questions). Such a result is not unduly surprising, given their legally-sanctioned right to ask questions, but there are several observations to be made about the results. For example, although ‘questions’ were by far the most frequent eliciting device, accounting for between 71.5% and 99.2% of the respective examiners’ (re)initiations, most of the examiners also utilised ‘counsels’, ‘requests’ and ‘requires’. Admittedly, the figures for the non-question eliciting devices are relatively low, but they are sufficient in number to suggest that the terms initiator and questioner may not have had the same synonymy that Walker (1987: 62) argues they have today or, indeed, that they were ‘non-transferable marker[s] Table 5. (Re)initiations according to role type (including an indication of ranking) Participant role
Force of (re)initiation Total no. of Question Rank Request Rank Require Rank Counsel Rank (re)initiations
Prosecution 351 counsel Judge 314 Court 388 Defendant 185 Defence 251 counsel Recorder 91 Court offic’l 32 Crier 2 Witness 7 Jury 4 Unknown 5 Onlooker – Others 3 Total 1633 (77.0)
2nd
43
3rd 3 1st – 5th 116 4th 24 6th 7th 11th 8th 10th 9th
1 – – 3 2 – 2 – 194 (9.2)
2nd
59
9
2nd
462 (21.8)
4th 103 – 3 1st 19 3rd 29
1st 19 8th – 5th 2 3rd 3
1st
439 (20.7) 391 (18.4) 322 (15.2) 307 (14.5)
8th – – 4th 6th – 6th –
7th 6th 4th
6 16 22 – – 1 1 – 259 (12.2)
2nd
9th 9th
– – – 1 34 (1.6)
4th 3rd
98 (4.6) 48 (2.3) 24 (1.1) 10 (0.5) 6 (0.3) 6 (0.3) 3 (0.1) 4 (0.2) 2120 (100.0)
Chapter 6. Interactional intent of participants’ utterances
of power’ (my italics). This is especially important when we consider that the most ‘powerless’ participants – the defendants – were the fourth most active (re)initiators, according to my data, and the fifth most active questioners, behind the defence counsels. If we explore the defendants’ (re)initiations in detail we find that 57.5% (or 185 out of 322) were questions. We also find that most of these (i.e. 163 out of 185) were addressed to witnesses, suggesting that defendants (who were permitted to do so) did take advantage of their ‘right’ to ask questions of the witnesses as they gave their evidence (cf. Sections 3.2.1 and 3.4.2). Defendants also utilised a high proportion of ‘requests’ (i.e. 116), the majority of which they addressed to judges. Whilst it is tempting to assume that the defendants’ powerless status ensured that they utilised a more indirect method of elicitation when interacting with a more powerful participant, it cannot explain their use of ‘requires’, a large proportion of which were also addressed to the judges. Such apparent contradictions highlight the complexity of [in]directness, of course, and, in turn, suggest that Tannen (1987: 7) is right to emphasise the danger of beginning ‘with our real-world assumptions about who has power and who doesn’t, and interpret[ing] the use of various linguistic devices in support of those assumptions’.
. Insights gained This chapter has provided a general overview of the discursive norms of interaction in operation in the EmodE courtroom, that is to say, who talked to whom, and in what capacity during the 200 year period covered by the SPC data. In particular, I have listed the participant roles adopted in the sixteen SPC trial texts, and documented which participant roles were the most active, before going on to examine the interactional intent of the main participants’ utterances in more detail. One of my most pertinent findings has been that the four eliciting devices of ‘question’, ‘request’, ‘require’ and ‘counsel’ were utilised by ‘powerful’ and ‘powerless’ participants alike in the SPC data (albeit to varying degrees). I have thus suggested that initiator and questioner were not ‘non-transferable marker[s] of power’ in the EmodE courtroom as they are in the modern courtroom (cf. Walker 1987: 62). In the following chapters, I focus in more depth on the specific strategies utilised by these main participants, that is to say, the judicial examiners, lawyers, defendants and witnesses. As my main interest is in the strategic use that participants made of questions in the context of the historical courtroom
Questions and Answers in the English Courtroom (1640–1760)
(and questions accounted for the bulk of the (re)initiations), I begin with an examination of questioning strategies utilised by the judges and the lawyers (see Chapters 7 and 8 following).
Chapter 7
Judicial examiners’ questioning strategies
. Examiners’ questions – a manifestation of power? In the penultimate section of Chapter 6, I highlighted a concern voiced by Tannen (1987: 7), namely, the danger, in interpretation, of beginning ‘with our real-world assumptions about who has power and who doesn’t, and interpret[ing] the use of various linguistic devices in support of those assumptions’ (see 6.3). In this chapter, I focus specifically on the strategic use that the judicial examiners made of questions in the context of the courtroom in order to determine the extent to which their questions can be regarded as a manifestation of power. In particular, I identify: 1. The discursive norms of the judicial examiners, including their regular addressees in the SPC overall, and the specific sub-periods. 2. The types of interrogatives/pragmatic questions utilised by the judicial examiners when addressing their most active addressees, and their frequency. 3. The primary function of those questions (e.g. to elicit information/confirmation/clarification/other). 4. The extent to which the judicial examiners’ questions took on additional ‘controlling’ and ‘accusing’ functions (cf. Harris 1984; Woodbury 1984). 5. The importance of viewing the judicial examiners’ questions as part of a questioning sequence, and the effect of their institutionally sanctioned power on the ‘potency’ of those sequences. 6. Evidence of a changing role, as the EmodE period progressed. It is worth noting, then, that I am revisiting many of the issues addressed in Chapters 5 and 6, but from the perspective of the judicial examiners. I begin by documenting the extent of the latter’s activity in the various sub-periods of the SPC, and the addressees with whom they interacted. My motivation for so doing is to give the reader a sense of the role of the judges, Courts and recorders during the period covered by the SPC data (1640–1760), and, in the case of the judges, to demonstrate that their role was undergoing change (see 7.2 following).
Questions and Answers in the English Courtroom (1640–1760)
. The judge Judges were the most active (re)initiators/questioners in both the Period 3 and Period 4 data. However, in Period 5, they were only the fifth most active (re)initiators/questioners. The total number of utterances attributed to the judges in Period 5 (i.e. 40 out of 1741) represents a marked drop in participation from the previous sub-periods (cf. Tables 6–8 below), and suggests that judges were becoming less directly involved with the questioning of participants as the EmodE period progressed.92 That said, it is worth noting that most of the judges’ utterances (i.e. 31 out of 40) were (re)initiations in Period 5 (see Table 8 below), the majority of which were addressed to witnesses (i.e. 22 out of 31). A possible explanation, then, is that the judges were still involved in the examining process, but that their role had undergone/was undergoing change. This becomes increasingly obvious when we compare the judges’ addressees in each sub-period (see Tables 6–8 below). Notice, for example, that the judges interacted with a wider variety of participants in the Period 3 and Period 4 data than they did in the Period 5 data. However, their most popular addressees in Period 3 were the defendants, followed by the witnesses, but, in Period 4 and 5, this ordering was reversed. This helps to explain why the witnesses were the most popular addressees of the judges in the SPC as a whole (indeed, the judges addressed 47.8% of their utterances to them, that is 266 out of 556). Because of the Period 3 judges’ considerable interaction with defendants, defendants were the SPC judges’ second most popular addressees. Notice, howTable 6. Interactional intent of judges’ utterances in Period 3 (figures in brackets show percentages) Move
Addressees (in Period 3) Total Defendant Witness Unknown Court Jury SRJ-at- Pros. Guard exchanges official arms counsel
Initiation 15 Response- 52 initiation Response 39 Report 11 Follow up 19 Follow up- 14 initiation Total 150 (52.4)
30 1
8 1
6 0
4 0
2 0
0 0
1 0
66 (23.1) 54 (18.9)
0 3 0 74
0 4 0 0
0 1 0 0
0 0 0 0
0 0 0 0
1 0 0 0
0 0 0 0
40 (14.0) 19 (6.6) 19 (6.6) 88 (30.8)
108 (37.8)
13 (4.5)
7 (2.4)
4 2 (1.4) (0.7)
1 (0.4)
1 (0.4)
286 (100)
Chapter 7. Judicial examiners’ questioning strategies
Table 7. Interactional intent of judges’ utterances in Period 4 (figures in brackets show percentages) Move Def.
Addressees (in Period 4) Total Witn. Unk. Crier Jury Defence Judge Pros. Recr. couns. couns.
Initiation 13 45 9 Response- 1 2 0 initiation Response 2 1 1 Report 0 1 7 Follow up 4 2 1 Follow up- 7 84 0 initiation Problem 0 1 1 Total 27 136 19 (10.9) (54.8) (7.7)
3 0
2 0
8 6
0 0
2 0
2 0
84 (33.9) 9 (3.6)
0 0 0 0
0 1 0 0
4 8 11 10
0 1 0 0
2 1 2 0
0 1 1 0
10 (4.0) 20 (8.1) 21 (8.5) 101 (40.7)
0 1 (0.4)
0 7 (2.8)
0 3 (1.2) 4 248 (1.6) (100)
0 0 1 3 3 48 (1.2) (1.2) (19.4)
Table 8. Interactional intent of judges’ utterances in Period 5 (figures in brackets show percentages) Move
Addressees (in Period 5) Total Defendant Witness Unknown Defence Member of court Jury
Initiation Responseinitiation Response Report Follow up Follow upinitiation Total
1 0
14 0
1 0
3 2
1 0
1 0
21 (52.5) 2 (5.0)
0 3 0 0
0 0 0 8
0 2 0 0
3 0 1 0
0 0 0 0
0 0 0 0
3 (7.5) 5 (12.5) 1 (2.5) 8 (20.0)
3 (7.5)
9 (22.5)
1 (2.5)
1 40 (2.5) (100)
4 (10.0)
22 (55.0)
ever, that the Period 4 and Period 5 judges interacted with the defence counsels more than the defendants. Notice, also, that a surprising number of the utterances that Period 3 judges addressed to defendants (i.e. 39 out of 150 or 26%) were ‘responses’, i.e. they provided information that had been directly elicited by the defendant. This suggests two things. Firstly, that the role of respondent and initiator were not as fixed in 1640–1679 as they are today (cf. Walker 1987). Secondly, that the judges’ role in Period 3 was very different than it is today. The SPC judges’ ‘questioning’ of defendants will be discussed in Section 7.7. As the judges also utilised a selection of other eliciting devices when interact-
Questions and Answers in the English Courtroom (1640–1760)
ing with the defendants (e.g. ‘request’, ‘require’, ‘counsel’), their interaction is also discussed in detail in Chapter 11.
. The Court and the recorder The Courts (or non-specific examiners) were the most active questioners in the SPC overall, and the third most active (re)initiators. Yet, they were only present in three of the Period 3 trials and two of the Period 5 trials.93 As Tables 9 and 10 (below) highlight, the Courts addressed a larger percentage of their utterances to the witnesses than the EmodE judges had done (i.e. 68.1% / 97.7% [= 82.9% for SPC] in the case of the Courts as opposed to 37.8% / 54.8% / 55% [= 49.2% for SPC] in the case of the judges; cf. Tables 6–8 above). It is worth noting that one particular text – the Court-martial of Captain John Ambrose (1745) – accounts for most of the Courts’ utterances with the witnesses (i.e. 14 initiations and 320 follow up-initiations). Yet, this text is atypical when compared to many of the other SPC trial texts. Firstly, as its title implies, it is a court martial hearing, and such hearings were usually held aboard one of His Majesty’s ships of war, before a group of officers (their rank depending on the rank of the defendant). Secondly, the highest ranking of the naval officers was assigned the role of president. Thirdly, the president, along with the remaining naval officers, were the only official examiners of the proceedings. Put simply, there were no prosecution or defence counsels present. Fourthly, the Court appeared to follow a strict format, namely, a deposition was initially read to all present, and then the Court asked witnesses a series of questions (e.g. ‘Is this Deposition true?’, ‘Was she [= the Rupert] (ever) within Table 9. Interactional intent of the Courts’ utterances in Period 3 (figures in brackets show percentages) Move
Addressees (in Period 3) Defendant Witness Recorder Plaintiff Unknown
Total
Initiation Response-initiation Response Report Follow up Follow up-initiation Total
1 0 0 0 0 0 1 (2.1)
21 (52.5) 2 (5.0) 3 (7.5) 5 (12.5) 1 (2.5) 8 (20.0) 40 (100)
12 0 0 0 20 0 21 (68.1)
0 0 1 0 0 0 1 (2.1)
6 0 0 0 5 0 11 (23.4)
1 0 0 1 0 0 2 (4.3)
Chapter 7. Judicial examiners’ questioning strategies
Table 10. Interactional intent of the Courts’ utterances in Period 5 (figures in brackets show percentages) Move
Addressees (in Period 5) Total Defendant Witness Defence counsel Injured person
Initiation Response-initiation Response Report Follow up Follow up-initiation Problem Total
0 0 0 1 1 0 0 2 (0.6)
18 1 0 0 0 322 0 341 (97.7)
0 0 0 1 0 0 0 1 (0.3)
2 0 0 0 0 3 0 5 (1.4)
20 (5.7) 1 (0.3) 0 (–) 2 (0.6) 1 (0.3) 325 (93.1) 0 (–) 349 (100)
point-blank?’, ‘Did you see the Fireship go(ing) down?’, etc.). Fifthly, the text has a strong ‘question-and-answer’ element, which is reflected in the court recorder’s representation of it: Lieutenant Hugh Palliser was called in and sworn. Then his Deposition was read, setting forth, that he was first Lieutenant of the Essex, during the Month of February 1743 [text omitted] Then the Court asked. Q Is this Deposition true? A. Yes. Q Was the Rupert never in the Line? A. No. Q. Was she ever within Point-blank? A. No, not when I saw her. Q. What time did you see her? A. I saw her several times that Day
The strong question-and-answer element helps to explain why the majority of the Court’s utterances functioned as (re)initiations/questions in the Courtmartial of Ambrose (1745), and why the Courts were thus the most active questioners in the SPC as a whole (see 6.3). Sixthly, the set-up of the examining procedure – a reading of a deposition followed by a series of ‘routinized’ questions (cf. Section 5.2.2) – appears to result in a more ‘controlling’ strategy (see 7.6, this chapter). Most of the utterances ascribed to recorders (i.e. 114 out of 120) were also utilised by one man – in this case, the infamous Sir George Jeffreys – in the Period 4 trials of Elizabeth Cellier and John Giles (both of which occurred in
Questions and Answers in the English Courtroom (1640–1760)
1680, towards the end of Jeffreys’ reign as the Recorder of London).94 As with the Courts, Jeffreys’ main addressee was the witness. Indeed, he addressed 72% (or 83 out of 114) of his utterances to witnesses, most of which (i.e. 52) were follow up-initiations. Yet, like the judges, Jeffreys had a mix of addressees (i.e. injured party, judge, prosecution counsel, defence counsel, and defendant). As witnesses were the judicial examiners’ main addressee overall, Sections 7.4–7.6 examine their interaction in more detail. Please note that, in the case of the Courts and the recorders, the analyses will concentrate on their most active period(s). Section 7.4, then, examines the judges’ interaction with the witnesses in the SPC as a whole (e.g. 1640–1760), 7.5 examines Jeffreys’ interaction with witnesses in Period 4 (1680–1719), and 7.6, the Courts’ interaction with witnesses in Period 5 (1720–1760). However, where relevant, I contrast the Courts’ and Jeffreys’ interaction with that of the judges to determine any significant similarities/differences between them.
. The judges’ interaction with witnesses (1640–1760) Table 11 (below) provides a breakdown of the judges’ interaction with witnesses in each of the three sub-periods of the SPC. Notice that the majority of the utterances addressed by judges to witnesses had the force of a question. This suggests that judges continued to be involved in the questioning of witnesses throughout the EmodE period, in spite of their apparent decrease in participation in the courtroom procedure as a whole (cf. Table 3, p. 166). Although the high proportion of ‘questions’ (in Period 3 and 4, in particular) is not sufficient in itself to suggest that the judges’ primary goal was establishing the ‘facts’ of the primary event (i.e. what had happened), two Table 11. Breakdown by force of judges’ interaction with witnesses (figures in brackets show percentages) Pd
Counsel
Question
Request
Require
Express
Inform
Totals
3
0 (–) 1 (0.7%) 0 (–) 1 (0.4)
103 (93.7%) 123 (86.0%) 21 (91.3) 247 (89.5)
0 (–) 2 (1.4%) 0 (–) 2 (0.7)
2 (1.8%) 11 (7.7%) 2 (8.7) 15 (5.4)
1 (0.9%) 2 (1.4%) 0 (–) 3 (1.1)
4 (3.6%) 4 (2.8%) 0 (–) 8 (2.9)
110 (100%) 143 (100%) 23 (100%) 276 (100%)
4 5 SPC
Chapter 7. Judicial examiners’ questioning strategies
additional factors appear to support such an hypothesis. Firstly, a substantial proportion (i.e. 166 out of 266 or 62.4%) of the questioning moves occurred in the ‘follow up-initiation’ position (see Tables 6–8 above): in other words, the judges and witnesses were regularly involved in relatively long questioning sequences like the following in Periods 3 and 4: [Context: the Lord Chief Justice is questioning a witness, Mr. Oates. Oates has just informed the judge of a letter apparently given to him by the defendant . . . ] Interactional Intent Force “fol-ini” “Question” “res” “Inform: answer” “fol-ini” “Question” “res” “Inform: answer”
Utterance In what language was it written? In plain English words at length. Directed to whom? It was directed to the Rectour of St. Omers, to give him intelligence how affairs went in England. “fol-ini” “Question” Did you break it open? “res” “Inform: answer” I was at the opening of it, and saw it and read it. There was a Letter to Father Lechees , which was superscribed by the same hand that the treasonable Letter of news was written, and the same hand that the recommendation to Playford was written in. When this Letter was open there was a Seal fixt, a flying Seal and no mans Name to it. “fol-ini” “Question” What was the Contents of that Letter to Lechees? [Mr. Oates goes on to describe the contents of the letter at length] [Trial of Edward Coleman, 1678]
Secondly, wh-questions and polar interrogatives with an information-seeking function were the predominant question-types (see Table 12 below). Wh-interrogatives are generally regarded as information-seeking (i.e. they request a missing variable). However, the majority of the judges’ polar interrogatives requested a polarity decision which would cause S (and others) to know (some things[s] about Y, thereby sharing the formers’ information-seeking function (see 4.4.3). It is worth noting that many of these ‘information-seeking’ polar interrogatives procured longer ‘answers’ than polar interrogatives with other functions. Compare, for example, the Lord Chief Justice’s initial ‘Did you break it open?’ question to Oates, which (as previously explained) received a long (e.g. 66-word) response from the witness, and his repeat question (e.g. ‘Did you open the Letters’), asking Oates to re-confirm his answer, to which
Questions and Answers in the English Courtroom (1640–1760)
Table 12. Breakdown by period of question-types that judges addressed to witnesses (figures in brackets show percentages) Pd 3
Polar
35 (30.7) 4 54 (40.3) 5 8 (34.8) SPC 97 (35.8)
Wh-Q Decl-Q Neg Alt polar
Neg Wh-
Ind Rhet-Q Ellip Tag polar
Total
60 (52.6) 57 (42.5) 12 (52.2) 129 (47.6)
4 (3.5) 0 (–) 0 (–) 4 (1.5)
0 (–) 3 (2.2) 0 (–) 3 (1.1)
114 (100) 134 (100) 23 (100) 271 (100)
6 (5.3) 10 (7.5) 3 (13.0) 19 (7.0)
3 (2.6) 5 (3.7) 0 (–) 8 (2.9)
4 (3.5) 3 (2.2) 0 (–) 7 (2.6)
0 (–) 1 (0.8) 0 (–) 1 (0.4)
2 (1.8) 0 (–) 0 (–) 2 (0.7)
0 (–) 1 (0.8) 0 (–) 1 (0.4)
Oates gave a one-worded response, ‘yes’ (see p. 157). That said, most ‘answers’ to polar interrogatives were longer than one word in Period 3. Indeed, the latter was the only one-word ‘answer’ given in response to a judges’ single polar interrogative in Period 3 (by single polar interrogative, I mean a polar interrogative that was not part of a multiple-interrogative format). In other words, witnesses’ ‘answers’ to the judges’ polar interrogatives tended to contain ‘elaborates’ (i.e. additional/supporting information than explicitly requested, see 4.4.3). This suggests, then, that ‘elaborates’ were quite common in the Period 3 data, and thus apparently acceptable to the judges, and, in turn, that ‘yes’ and ‘no’ was not the ‘expected’ response of polar interrogatives (cf. Sections 3.3 and 7.6). However, I should point out that overly-wordy ‘elaborates’ like the above were not tolerated when used frequently. Indeed, Oates was instructed to ‘answer the question in short, and without confounding it with length’ after producing a series of ‘lengthy’ answers (Trial of Edward Coleman, 1678). I will explore some of these issues in greater depth, when I examine the responses of the witnesses (see Chapter 10). Period 3 and 4 judges not only requested that witnesses recount a chain of events, but also ‘what’ they ‘knew’ and/or ‘what’ they had said or heard another say (e.g. ‘Mr. Gadbury, What do you know concerning this Plot?’, ‘What said Mr. Langhorn to you about the Commissions in his chamber?’, ‘What was the Information you gave at that time to the Council against Mr. Coleman?’, etc.). Not surprisingly, what was the most common wh-form. That said, the majority of what-interrogatives requested fairly minimal responses in Period 3 and 4, such as the naming of a location (‘At what house was it?’), time (‘What time did you . . . ’), or an amount (‘What did you spend there?), thereby challenging the traditional assumption that what-interrogatives are relatively unrestricted
Chapter 7. Judicial examiners’ questioning strategies
(see 5.2.1). This is not to say that all of the judges’ what-interrogatives were information-seeking, for some were used to challenge/seek clarification about a witnesses’ prior evidence, as when the Lord Chief Justice asked Oates, ‘VVhat time went you to Langhorns chamber? I cannot reconcile the months together.’ (Trial of Edward Coleman, 1678; see 5.5 for a commentary on this and the preceding interaction). The use of wh-questions to query and/or request clarification of something said by another was a particularly common feature of judges’ interaction with witnesses in Period 5. Indeed, twelve of the judges’ twenty-one questioning moves responded to and/or requested clarification of something said by another (cf. Stenström 1984: 173; see also 4.4.3). By way of illustration, the judge in the Layer trial (1722) intervened to help clarify an interchange between a witness and the defendant (for clarity, I have indicated to whom each of the utterances were addressed): [Context: a witness, Mrs. Mason, has previously stated that the prisoner had instructed her to take in any letters ‘directed to Mr. Fountaine’ for him, and that she had done so] Prisoner. [to witness] Mrs. Mason. [to prisoner] Prisoner. [to witness] Mrs. Mason. [to prisoner] Ld. Ch. Just. [to witness]
Mrs. Mason. [to judge]
Prisoner. [to judge] Mrs. Mason. [to witness] Ld. Ch. Just. [to prisoner]
How can you tell how that Letter was directed, which you took in since you say you cannot Read? It was directed to Mr. Fountaine. Did you read the Superscription? No. Mrs. Cook did. You say you was desired by Mr. Layer, when any Letter came directed to Mr. Fountaine, to take it in; and that a Letter came directed to Mr. Fountaine, and you took it in. The Question is asked you, since you cannot read, how could you tell it was directed to Mr. Fountaine? My Landlady told me it was for Mr. Fountaine, and she knew he went by the Name of Fountaine sometimes. She said she read it. No. I said I gave it to you, and you open’d it, and you read it. The Occasion of this Question is, that this Misnomer was approved of by you. She says that you order’d her, that if any Letter came directed to Mr. Fountaine, she should take it in; a Letter
Questions and Answers in the English Courtroom (1640–1760)
did come directed so, she took it in, and then deliver’d it to you; and you receiv’d it from her, and open’d and read it; Ld. Ch. Just. [to witness] but how, say they, cou’d you know this Letter was directed to Mr. Fountaine, when you can neither write nor read? Ld. Ch. Just. [to prisoner] She having receiv’d such an Order, when there was a Letter come, it was natural enough, that she that cou’d not read, should ask her Landlady the Directions of the Letter, and it was directed for Fountaine; it was natural enough for her to take it in, and give it to you.
The initial evidence that the Lord Chief Justice chose to clarify related to how the witness could tell that the letter she had taken in was directed to Mr. Fountaine if she could not read. Although one could argue that Mrs. Mason had already provided the evidence (albeit implicitly) when she informed the defendant that Mrs. Cook had read it, the judge apparently desired an explicit response from her (as Tiersma 2000: 168 highlights, the same expectation – that information which is pragmatically obvious be made more explicit – can be evidenced in the modern courtroom). That explicit response provoked a second interchange between the witness and the defendant, and caused the Lord Chief Justice, in turn, to ‘weigh’ the evidence given by each participant, before coming to a conclusion in favour of the witness. Notice that the judge was careful to frame his utterances so that they ‘objectively’ summarised what had been said by the participants themselves (‘She says that you . . . but . . . say they . . . ’). This type of strategy appeared to be designed so as to avoid misrepresenting the participants and, in turn, draw the jury’s attention to (without negatively influencing their assessment of) particular salient points. The impression given by this and similar extracts from the Period 5 data is that judges were beginning to adopt a ‘presiding’ role similar to that embraced by judges today (cf. Section 3.2.1). However, as will become clear in 7.7, they were not as ‘neutral’ as we assume modern judges to be (cf. Drew’s 1985: 136 assessment of contemporary judges – in particular, their concern for neutrality). Indeed, a judicial examiner who utilised a number of questioning moves that responded to and/or requested clarification of something said by another for reasons other than ‘neutrality’ is Sir George Jeffreys. I analyse his utterances in 7.5, following.
Chapter 7. Judicial examiners’ questioning strategies
. Jeffreys’ interaction with witnesses ‘Judge Jeffreys’ is perhaps best known for his involvement in the Bloody Assizes, the name given to the assizes which took place after the defeat of the Duke of Monmouth at the Battle of Sedgemoor, and resulted in the execution of 150 of Monmouth’s followers, and the exile of a further 800. Indeed, his activity during these trials led to him becoming known as the ‘hanging judge’ (Simpson 1984: 274). Yet, whilst contemporaries recognised his ‘judicial brutality and manifest unfairness’ when ‘in pursuit of the Crown’s interests’ (Simpson 1984: 275), ‘in mere private matters he was thought an able and upright judge whereever he sat’ (Speaker Onslow, quoted in Burnet’s History of his own time, Vol. II: 600n). The trials of Cellier and Giles took place five years prior to the Bloody Assizes (i.e. 1680 as opposed to 1685), after the conclusion of the ‘Popish Plot’ trials, which were themselves highly contentious (see Kenyon 1972). It’s worth noting, however, that Jeffrey’s direct participation as recorder in these trials seemed to be dependant upon whether another more senior examiner was present. In the Trial of Elizabeth Cellier (1680), for example, the main questioner was not Jeffreys but the Lord Chief Justice William Scroggs. Consequently, Jeffreys utilised only seven utterances, two of which had the force of a question. In contrast, in the Giles trial (for which Jeffreys was the main judicial examiner), Jeffreys utilised 107 utterances, 86 of which had the force of a question (76 being addressed to witnesses). As Section 7.4 revealed, the SPC judges utilised wh-interrogatives more than any other question-type when interacting with the witnesses, the majority of which had an information-seeking function and were part of a questioning sequence. Jeffreys’ interrogative use reveals a similar pattern. Indeed, 44 (55%) of his interrogatives had a wh-structure, 40 of which requested a missing variable.95 What was, once again, the most common wh-form. Indeed, the what-interrogative accounts for more than half (i.e. 24 or 54.6%) of the whinterrogatives addressed by Jeffreys to the witnesses. As we found with the Period 3 and 4 judges, Jeffreys’ use of what-interrogatives challenges the traditional assumption that what-interrogatives are relatively unrestricted (see also 5.2.1). Indeed, only five could be categorised as ‘broad’ (the remaining requested similar minimal responses to the judges’ what-interrogatives, e.g. the naming of a location, time, name, etc.). Moreover, it is worth noting that the ‘broad’ interrogatives were perhaps not as broad as they would have been if they had been spoken in a different context. For example, two of the five were ‘what say you . . . ’ interrogatives that initiated an examination of a witness. Although
Questions and Answers in the English Courtroom (1640–1760)
seemingly ‘open’ (i.e. they raised ‘the general issue of what [the witness] had to say’, without relating to prior given evidence; cf. Hiltunen 1996: 25f.), the questioning sequences they initiated were very short. Indeed, one witness (Roger How) was not asked any further questions, and the other (Elizabeth Crooks) was asked only one additional question, according to the scribes: Record. What have you to say? Eliz. Sir I went with mr. Giles home, and it was between Nine and Ten a Clock, and I saw him in his Lodging, and I saw him in the Morning. Record. Are you sure he went to Bed when you made it? Crook, It was between Ten and Eleven a Clock. [Trial of Giles, 1680]
A tight control over testimony has previously been put down to the use of ‘leading questions’, but Jeffreys often used wh-interrogatives (or a combination of ‘leading’ and wh-interrogatives) to request from witnesses only that information that he deemed to be ‘appropriate’ to the case: [Context: a member of the prosecution counsel, Mr. Thompson, had asked Richmond to explain how John Giles had arrived at his lodgings on the day he was supposed to have attacked John Arnold] Mr. Richmond.
Recorder. Will.Richmond. Recorder. Will Richmond. Recorder. Will Richmond. Recorder. Will. Richmond.
We went to several places that day, and at Eight or Nine, or between Eight and Nine, we came to the Kings Arms in St. Martins-lane, and I left him at the Kitchin Fire, and went up into the Chamber, and drank a considerable quantity of drink; and as near as I can guess, it was between Twelve and One a Clock before he came to his Bed: for after I was going to Bed, about One of the Clock, I heard John Giles come up the Stairs, and bid me Good-night; he called at my door just as I was pulling off my Breeches to go into Bed. What time was this? As near as I can guess it was between Twelve and One, or very near One. At what House was it? The Kings Arms in St. Martins-lane. What did you say when the Maid was making the Bed. I asked her who it was for? And she said for a Man that was not willing to lie with any Body. What time did you come to the House? About Nine.
Chapter 7. Judicial examiners’ questioning strategies
Record. Will. Richmond. Record. Will. Richmond. Record.
Did you stay in that House till that time? I lay in the House Sir. You were not out of the House all the while? No Sir, I was not out of it. And you are sure that you did not see him again till he came to your door going to Bed? Will. Richmond. Yes Sir. Record. What time was that? Will. Richmond. Nigh One. [Trial of John Giles, 1680]
Richmond’s first ‘answer’ (above) was in response to a ‘what say you’ question from the prosecution counsel (e.g. ‘What do you say to his coming to his Lodging?’). As that answer reveals, the question was open-ended enough to allow Richmond to provide a brief narrative. Jeffreys’ wh-interrogatives, in contrast, sought very specific information from Richmond. Notice that they were followed by a polar interrogative and two declarative questions, which sought – and received – the witness’s confirmation. Notice, also, that the wh-interrogative after the declarative questions asked Richmond to confirm information he had previously volunteered. Jeffreys utilised a second series of wh-interrogatives (nine in total) immediately following the above extract to establish an itinerary of Richmond and Giles’s whereabouts/actions on the evening in question. All were restrictive (e.g. ‘where did you go at that time?’ . . . ‘what did you spend there?’ . . . ‘whether did you go from thence?’ . . . ‘How long did you stay in Drury-lane?’ . . . ‘Where after that?’ . . . ‘Who did you meet with all between X and Y . . . ?’ . . . ‘What did you drink there?’ . . . ‘How long did you stay there?’ . . . ‘What time of Night was it that you went from thence?’). Such a strategy (i.e. carefully framing questions so that they appear open-ended, but, in reality, allow a tight control over testimony) is remarkably similar to that advocated by Koskoff (1983) in a recent article published in The Litigation Manual: A Primer for Trial Lawyers: The lesson could not be more clear. Completely neutral questions are rare indeed. Questions which will influence the answers – at least statistically – can be framed so they will not run afoul of the rule against leading. If the words in question are going to influence the answer, they should be carefully thought out in advance. (Koskoff 1983: 111. Cited in Tiersma 2000: 175)
Of course, the one main difference between the above and Jeffreys’ strategy is the use of leading questions, for contemporary lawyers cannot make use of the latter during direct examination (Tiersma 2000: 172), but judicial examiners in
Questions and Answers in the English Courtroom (1640–1760)
the EmodE period were not restricted by such a rule.96 Indeed, Jeffreys followed up the above sequence with two further declarative questions. Yet, it is worth noting that, even though Jeffreys’ questioning style was primarily controlling, not all of the ‘conducive’ question-types that he utilised exhibited a controlling element. Indeed, as I highlighted in Section 5.4.1, Jeffreys addressed a ‘copy’ tag to Ann Beron that indicated his surprise at finding that he had misunderstood some prior evidence given by her:97 [Context: The defendant (John Giles) is attempt to point out to Jeffreys that he believes he has misunderstood some previous information given by the witness, one Ann Beron] Giles.
My Lord, she don’t say she was with us all the while, but we came to an House where she was, and several other People our Neighbours. Record. (to Giles) She says you did go out sometime [. . . ] Record. (to Beron) [. . . ] Now see whether I mistake you. Ann. Yes you do mistake me. Record. He went out, did he? Ann. Yes he went out after we came into the City, he and some others, and then they came back to me again in two or three hours.
I highlight this example again so that I can point out that ‘conducivity’ is related to – but not the same as – ‘control’ (cf. Section 3.3.2). This means that the presence of conducive question-types in the historical courtroom cannot automatically be taken as a signal that they were being used coercively – even when utilised by judicial examiners as controlling as Jeffreys (for contemporary views of Jeffreys’ questioning method see Burnet 1715; North 1742). In other words, counts of question-types cannot be seen as explanatory in and of themselves. Rather, they are a first step towards the identification of patterns or norms and, by extension, the identification of exceptions from those norms as we move towards ‘qualitative, functional interpretations of quantitative patterns’ (cf. Biber et al. 1998: 5; see, also, Section 12.8 for my understanding of the relationship between corpus linguistics and historical research). As will become clear, an approach that blends quantitative and qualitative analyses is especially important when attempting to understand the role of the Court in the EmodE courtroom.
Chapter 7. Judicial examiners’ questioning strategies
. The Courts’ interaction with witnesses (1720–1760) The previous section revealed that ‘control’ in the (historical) courtroom was not merely achieved by the types of interrogatives utilised, but by the individual style of the examiner and the context in which they were used. In this section, I suggest that ‘control’ may also be achieved by the set-up of the examining procedure itself. As previously highlighted, the Court was the second most active participant in Period 5, with 20% (i.e. 349 out of 1,741) of the total utterances. Although relatively low, the figure needs to be viewed in light of the fact that the Court only appeared as an active participant in two trials, the Trial of Mr. Bartholomew Greenwood (1740), and the Court-martial of Captain John Ambrose (1745).98 Because most of the Courts’ utterances (i.e. 99.1%) were (re)initiations with a questioning force, the Court was the most active questioner in both Period 5 and in the SPC as a whole (see Table 5, p. 172).99 The majority of the Courts’ questions (i.e 333 out of 339) occurred in the Courtmartial of Ambrose. As the SPC extract of the text relates to a day of the trial which specifically dealt with the examination of witnesses, all 333 questioning moves were addressed to witnesses. The six questions utilised by the Court in the Trial of Greenwood (1740) were also addressed to witnesses. Table 13 (below) provides a breakdown of the interrogative types utilised in both texts (please note that, as some ‘questions’ contained multiple interrogatives, the total for the latter is slightly higher than the total for the questioning moves). Notice that the Courts favoured the polar interrogative above the whinterrogative in Period 5. Indeed, the polar interrogative accounted for 62.9% of the total number of interrogatives utilised by them, and the wh-interrogative only 30.4%. This is in stark contrast to the Courts in Period 3 and the judges in all periods: 62.2% (i.e. 23 out of 37) of the Period 3 Courts’ interrogatives were wh-interrogatives, and only 21.6% (i.e. 8 out of 37) were polar interrogatives.100 Table 13. Interrogative-types addressed by the Court to witnesses in Period 5 (figures in brackets show percentages) Trial
Polar
Wh-Q
Decl-Q
Neg polar
Alternative
Total
Ambrose Greenwood Total
210 5 215 (62.9)
102 2 104 (30.4)
1 – 1 (0.3)
12 – 12 (3.5)
9 1 10 (2.9)
334 8 342 (100)
Questions and Answers in the English Courtroom (1640–1760)
The Courts’ interaction with the witnesses in the Ambrose text (1745) is not completely different from that of the judges generally. Indeed, a high number of their questioning moves occurred in the ‘follow up-initiation’ position (i.e. 322 out of 341), as the judges’ questioning moves had done (cf. Section 7.4).101 The Courts also utilised a substantial proportion of ‘informationseeking’ interrogatives (i.e. interrogatives that requested a polarity decision and/or a missing variable). However, before assuming that the Court’s ultimate goal was therefore similar to that of the Period 3 and 4 judges, namely, establishing the facts surrounding the primary event, it is worth noting that their habit of ensuring that all present heard a witness’s deposition prior to that witness being questioned effectively meant that, for much of the time, they were seeking to verify information provided in the deposition as opposed to uncovering ‘new’ information (cf. the judges and the Period 3 Courts, who tended to utilise wh-interrogatives to procure facts relating to the primary event at the beginning of their examinations, moving to polar interrogatives as the examination continued). Consequently, their questioning style was more explicitly controlling than the judges’/Period 3 Courts’ questioning style. Indeed, there were no ‘give an account’ requires or ‘what say you’ type questions, which allowed witnesses to provide mini-narratives detailing what they knew (cf. Section 5.2.1). Rather, their questions were designed to procure minimal answers from the witnesses, as in the following extract taken from the examination of Joseph Meyers (please note, the underlining is mine): Q. If the Rupert had gone down in the Line at first, cou’d she have fired at the headmost of the five Sail of the Enemy, and left a Space for the Dorsetshire and Essex ? A. Yes. Q. At the Beginning? A. Yes. Q. Must not she have been to leeward of the Admiral then? A. No. Q. When the Admiral wore in the Evening, what Position were the sternmost of the Enemy in from the Rupert? A. When the Admiral wore, we were firing at them. Q. Did they shoot up a-head, or lie a-breast of the Rupert? A. The headmost of them was upon her Beam, but not the sternmost. Q. Were they a-head of the Rupert? A. No, when we wore, we fired our larboard Guns at them. Q. When you was so near the Rupert, how far was you from the Spanish Ships?
Chapter 7. Judicial examiners’ questioning strategies
A. Near a Mile. Q. Did any of the Spanish Ships coming up alter their Course from the Rupert’s Fire? A. No. Q. Was the Rupert never nearer the Spanish Ships than she was just before you wore? A. No, that was the nearest. Q. Did you fire any Shot at the Enemy? A. Yes. Q. At what Distance? A. A Mile.
Notice that the Court’s negative polar questions (e.g. ‘Must not she. . . ?’) and disjunctive interrogatives (e.g. ‘Did they shoot up a-head or lie. . . ?’) tended to have a ‘querying’ or ‘clarifying’ force, and procured answers that were longer than the answers made in response to the information-seeking polar interrogatives and wh-interrogatives. Notice, also, that several of the polar interrogatives had a similar force, primarily because of the Court’s inclusion of the nonassertive items ‘any’ and ‘ever’. Yet, they tended to receive short ‘answers’ in comparison (cf. the judges’ information-seeking polar interrogatives in Period 3, which generally contained ‘elaborates’; see 7.4).102 In Chapter 10, I suggest that the reading of a deposition prior to the questioning of witnesses might account for the witnesses’ preference for short ‘answers’ in the Courtmartial of Ambrose (1745). By this I mean, witnesses were effectively confirming/clarifying ‘given’ evidence as opposed to providing ‘new’ information. What the above example from the Ambrose trial cannot reveal (but a comparison of an earlier section of Meyer’s examination and another extract taken from the Ambrose trial will), is the Courts’ strong reliance upon ‘routinized’ questions (see underlined sections, below). [Context: Lieutenant Palliser’s examination (please note, Palliser was the first witness to be questioned by the Court)] Q. A. Q. A. Q. A. Q.
Did you see the Fireship go down? Yes. Did the Rupert attempt to cover her? No. Did she ever attempt to cover the Marlbro? She went down to the Marlbro at Night, when we wore, but not before. Was she near you when you brought up?
Questions and Answers in the English Courtroom (1640–1760)
A. Yes, she presently fell farther a-stern of us and to leeward, but not so far as to form the Line. Q. Was she ever within Point-blank? A. No. [Context: Extract from Joseph Meyer’s examination] Q. A. Q. A. Q. A. Q. A.
Did you see the Fireship go down? Yes. Did the Rupert cover her or attempt it? No. What did the Rupert do? She began to fire when we did. When did she begin? Soon after the Admiral.
By the time of Meyer’s examination, there is evidence to suggest that witnesses knew what information the Court was requesting, even though they may not have requested that information explicitly. By way of illustration, a question regarding whether the shot fell short had been addressed to three witnesses prior to the Court questioning Meyer, and a question regarding whether the Fireship was ‘within point blank’ had been addressed to four witnesses. Thus, when Meyer was asked what the Fireship was doing at a particular time, he answered by stating that ‘She continued firing some time, and all the Shot fell short’ (my italics), and, when asked ‘At what distance she [the Fireship] was from the Enemy?’, answered ‘Not within point blank’ (my italics). It is important to note that, although ‘routinized’ questions were also a feature of several other trial texts in the SPC, they were not used as frequently (cf. Section 5.2.2). Thus far, I have concentrated on the judicial examiners’ interaction with witnesses, which was largely made up of ‘questions’ and ‘answers’. In Section 7.7 (following), I describe how the judges’ interaction with defendants did not follow a simple ‘question’ and ‘answer’ pattern, but often involved other eliciting devices or, alternatively, the judges ‘informing’ rather than seeking information from defendants. I go on to highlight the judges’ specific use of questions in 7.7.1, and discuss their use of non-questioning eliciting devices in Chapter 11.
. The judges’ interaction with defendants (1640–1760) Of all the judicial examiners, the judges interacted most with defendants.103 That interaction was at its greatest during Period 3. Indeed, judges addressed
Chapter 7. Judicial examiners’ questioning strategies
52.4% of their utterances to defendants (that is, 150 out of 286), making them their favoured addressee between 1640–1679. After 1680, however, judges addressed approximately 10% of their utterances to defendants (cf. Tables 6– 8, pp. 176–177). Table 14 (below) provides a breakdown by force of the judges’ interaction with defendants in the SPC data. Notice that their favoured verbal action category was that of the ‘question’ between 1680–1719, but that their favoured verbal action category for the other sub-periods and the SPC as a whole was the ‘inform’. The favouring of the ‘inform’ when interacting with defendants suggests two things. Firstly, that interaction between EmodE judges and defendants was not based upon the question-and-answer sequences we commonly associate with the courtroom. Secondly, the assumption that EmodE judges gave defendants ‘every opportunity’ to give their version of events is erroneous (cf. Sections 3.4.1–3.4.2). Indeed, the Period 4 data seems to be distinct because of the judges’ utilisation of questions. Moreover, a closer examination reveals that most of these questions did not seek to uncover ‘what happened’ during the primary event. Rather, they asked whether the defendant had ‘any more witnesses’, ‘any Thing more to say’ (for) themselves, ‘any Thing more to offer’, or any ‘Objection[s]’ to what had been said by another. I also found that the interaction between judge and defendant tended to be single ‘question-answer-follow up’ exchanges. The one exception to this was the interchange between Lord Chief Justice William Scroggs and Elizabeth Cellier (The Trial of Elizabeth Cellier, 1680). I examine this interaction in 7.7.1 in detail, after I have documented the use that Period 3 judges made of ‘questions’ when interacting with the defendants.
Table 14. Breakdown by force of judges’ interaction with defendants (figures in brackets show percentages) Period
Counsel Question Request Require Express Inform Sentence Problem Totals
3 (1640–1679) 4 (1680–1719) 5 (1720–1760) SPC (1640–1760)
17 (11.0) 1 (3.6) 0 (–) 18 (9.6)
21 (13.6) 18 (64.3) 0 (–) 39 (20.7)
1 (0.6) 0 (–) 0 (–) 1 (0.5)
45 (29.0) 3 (10.7) 1 (20.0) 49 (26.1)
9 (5.8) 1 (3.6) 2 (40.0) 12 (6.4)
60 (38.7) 5 (17.8) 2 (40.0) 67 (35.6)
1 (0.6) 0 (–) 0 (–) 1 (0.5)
1 (0.6) 0 (–) 0 (–) 1 (0.5)
155 (100) 28 (100) 5 (100) 188 (100)
Questions and Answers in the English Courtroom (1640–1760)
.. Judges’ ‘questioning’ of defendants (1640–1719) As defendants had been present during the alleged primary event, the EmodE justice system regarded them as being in the best position to state what had happened – in theory. In practice, however, my SPC data relating to Period 3 suggests that they were not ‘given every opportunity to tell all they knew’ (cf. Sections 3.4.2 and 3.4.3.1). Indeed, as Table 14 (above) reveals, judges addressed nearly as many ‘counsels’ as ‘questions’ to defendants (i.e. 17 compared to 21), three times as many ‘informs’ as ‘questions’ (i.e. 60 compared to 21), half as many ‘requires’ as ‘questions’ (i.e. 45 compared to 21) and nearly half as many ‘expresses’ as ‘questions’ (i.e. 9 compared to 21). If we examine the types of interrogatives utilised by the judges when interacting with defendants in Period 3 we find that the polar interrogative was the most popular, accounting for 38.5% of their questions (i.e. 10 out of 26) (N.B. the judges’ favoured interrogative when interacting with the witnesses was the wh-interrogative; see 7.4).104 Half of these polar interrogatives requested a polarity decision (i.e. they were information-seeking). The other half sought further clarification of and/or queried some prior evidence whilst also revealing something of the judges’ attitudes towards the defendants (see 4.4.3). That said, the number of interrogatives that queried or sought clarification of prior evidence increases to nine, if we include two of the alternative questions and two of the four what-interrogatives. By way of illustration, when Connor Lord Macguire ‘humbly desire[ed] to have a formall Triall’, the judge asked In what respect do you meane? I think it is so now: Now you are come to be arraigned, and the evidence is to come in against you, I conceive it is a formall one [Trial of Connor Lord Macguire, 1644]
Macguire was apparently not satisfied, however, for he later asked ‘what seal you thus proceed against me, for I thinke you sit here by the new seal’. Once again, the judge answered Macguire’s query with a query of his own, ‘What seal do you mean, I sit here by vertue of the Olde by Order of Parliament’. One of the two rhetorical questions addressed by judges to defendants in Period 3 was also directed at Macguire. What can your Witnesses say for you? Can they say thus much, That you did not conspire, as this Indictment charges you? that there was no taking of these Castles? Can they sweare in the Negative? the proofe lies in the Affirmative on the Kings Part? [Trial of Connor Lord Macguire, 1644]
Chapter 7. Judicial examiners’ questioning strategies
The implication of the rhetorical wh-question was that the witnesses could not say anything for him, of course (cf. Greenbaum & Quirk 1990: 240). Moreover, the judge was careful to reinforce the implicature by appending a series of ‘leading’ questions (see 3.3.1).105 Macguire appeared to recognise that he could not hope to answer any of the ‘questions’ without buying into their damaging presuppositions, for he did not attempt to answer any of them. Instead, he informed the judge that he felt the Court had been misinformed about him! The judge – and the Court – did not share his view. He was found guilty of ‘rioting and enticing rebellion in Ireland’, and promptly executed. As the above examples reveal, the questions that judges addressed to defendants in Period 3 tended to impose a higher level of restriction upon their response options than had been the case with witnesses. This was not as evident in Period 4. Indeed, the judges asked defendants questions which functioned like ‘prompters’ (Culpeper & Kytö 2000a), i.e. they asked whether the defendant had ‘any Thing more to say’ (for) themselves’, or ‘any Thing more to offer’, or, indeed, any ‘Objection[s]’ to what had been said by another. The defendants’ ability to make the most of these invitations to speak depended on several factors, of course, including whether they had been able to prepare for the trial, had objections of substance to offer, and were able to talk effectively in this type of public setting (see 3.4.2). One defendant who managed to speak well on her own behalf was Elizabeth Cellier. The main prosecution witness against Cellier was Thomas Dangerfield. However, Cellier ‘accepted against’ him, claiming that (at a previous trial) he had ‘threatened some of [her] witnesses, that if they would not Swear as he would have them, he would kill them’. She also informed the judge that Dangerfield had been indicted for burglary. A witness for the defence, Ralph Briscoe, was then called to substantiate Cellier’s claim. Although Briscoe did so, the Lord Chief Justice appeared to want additional proof. He asked Cellier ‘Have you any more?’. The Lord Chief Justice wanted to know whether Cellier had any more witnesses, of course, but Cellier did not provide any names. Instead, she provided information that was not the requested information, namely, that she could ‘prove him [Dangerfield] perjured’. The ‘supply’ prompted the Lord Chief Justice to pursue a new line of enquiry: L. C. J. Mrs. C. L. C. J. Mrs. C. L. C. J.
Have you any Records to shew he was perjured? is he convinced? No. Then you can’t do it. My Lord, I can prove him guilty of Forgery. If you don’t produce the Record, you do nothing.
Questions and Answers in the English Courtroom (1640–1760)
Moreover, he continued to probe, in spite of his obvious reservations: L. C. J. Can you shew he forged any Deeds. If you can prove that he hath committed Forgery, and be not convicted, it is no Errour. L. C. J. Have you your Pardon? She hath proved the Conviction of Felony, prove your Pardon.
The second of the Lord Chief Justice’s utterances (above) was addressed to Dangerfield, suggesting that some activity had occurred that the scribe chose not to document. Fortunately, we can infer that it involved Cellier providing evidence to prove ‘the Conviction of Felony’. Moreover, the scribe attributed the next utterance to Cellier, confirming as much:106 Mrs. C.
I have the Copies of several Records here in Court, which will be sworn to. To which Mr. Dangerfield pleaded his Majesties most gracious Pardon. To which Mrs. Cellier replyed, that she had a Copy of the said Pardon in Court, but it did not extend to some of the Crimes for which he stood convicted, and then produced a Record, wherein it did appear, he was outlawed upon Fellony. Upon which the Court commanded Mr. Dangerfield to go and fetch his Pardon, in the interim examining several of the Kings VVitnesses.
After examining the witnesses, Dangerfield was found to be ‘not fit for a witness’, and Cellier was released. In 7.4, I mentioned how Period 5 judges appeared to be developing a concern for neutrality that Drew (1985: 136) associates with contemporary judges. The compassion shown by Lord Chief Justice William Scroggs in the Trial of Elizabeth Cellier (1680) suggests that judicial examiners in the Period 4 trials also exhibited neutrality. Yet, with defendants, at least, this was the exception rather than the norm. Indeed, there is plentiful evidence of judicial examiners not taking kindly to defendants who voiced concerns about their proceedings, as Cellier had done. For example, Ambrose was rebuked for ‘dictat[ing] to the Court’ and using ‘ungenteel’ Speech (Court-martial of Ambrose, 1745). The suggestion that led to the rebuke was that: Every Gentleman that is a Member of the Court . . . destroy the Minutes they have taken upon the former Tryals, that they may have no Influence in regard to the Sentence that may be pass’d upon my Conduct.
I will be examining other instances of friction between defendants and judicial examiners in Chapter 11.
Chapter 7. Judicial examiners’ questioning strategies
. Insights gained Evidence from the SPC data suggests that the judicial examiners’ questions served various functions in the courtroom of the EmodE period, depending on both the role of the addressee and the judicial examiners’ ultimate aim. For example, the majority of the questions that the judicial examiners asked witnesses had an ‘information’ and, to a lesser extent, ‘confirmation’-seeking function. In contrast, the ‘few’ questions that judicial-examiners addressed to defendants tended to have a ‘querying’/‘clarification’-seeking function (it is worth reiterating that the judicial examiners’ interaction with defendants did not follow a simple ‘question’ and ‘answer’ pattern, but often involved other eliciting devices or, alternatively, the judges ‘informing’ rather than seeking information from defendants). That said, there is strong evidence to suggest that the function of the questions that the judicial examiners addressed to witnesses became more ‘clarification’-seeking as the EmodE period progressed. This is largely because of a change in the judicial examiners’ role: At the beginning of our period, judicial examiners were the primary enquirers in the courtroom. Consequently, they were ‘responsible for the development of the case’ (Landsman 1990: 506). By this I mean that it was (the propositional content of and the ‘answers’ procured by) their ‘inquisitorial’ questioning, rather than any ‘altercation’ between the respective parties (i.e. the witnesses and the defendants), which tended to provide ‘proof ’ that criminal activity had/had not taken place.107 However, as the EmodE period progressed, the judicial examiners were increasingly adopting the role of ‘umpire’. The most striking evidence that the judicial examiners’ role was changing during the period covered by the SPC is their decreasing involvement in the questioning of witnesses (and defendants) and thus control over the questioning process. Although their decreasing use of questions could be taken as a loss of power on their part, it is worth noting that the inquisitorial form of procedure had not been abandoned (cf. the activity of the Court in the Courtmartial of Ambrose). Rather, as will become clear in Chapter 8, it was slowly being replaced by ‘new approaches, [which] rel[ied] more on party-conducted interrogation’ (Landsman 1990: 514). As will also become clear, the judicial examiners found new ways of manifesting their ‘power’ (in particular, ‘weighing’ the evidence put forward by the lawyers).
Chapter 8
Lawyers’ questioning strategies (1640–1760)
. The emergence of counsel as major players? Counsel rarely took part in criminal trials prior to the mid-eighteenth century, according to historians (3.4.3–3.4.3.1). However, by the end of the same century: Counsel had had an immense impact on the conduct of criminal trials. They had ushered into criminal procedure the divisions between examination-inchief and cross-examination and between evidence and argument, nourished the growth of the law of evidence, changed the nature of the judicial involvement in the trial, and supplemented the haphazard efforts of the prisoners to defend themselves with professional advocacy. (Cairns 1998: 3)
Yet, prosecution and/or defence lawyers are present in several of the later SPC texts. Moreover, they appear to have ‘impacted’ examination procedure almost immediately, in terms of both their activity and the strategies they adopted. As will become clear, several of the prosecution and defence counsels’ strategies share similarities with the adversarial techniques adopted by today’s lawyers. For example, there is evidence to suggest they used questions to control and accuse as well as to elicit information, confirmation and/or clarification (cf. Harris 1984; Woodbury 1984). As will also become clear, the EmodE lawyers’ use of ‘adversarial-type’ techniques was at its greatest when interacting with witnesses in the presence of their ‘opposing’ counsel (see 8.2–8.5). For it was under such circumstances that they began to design their utterances so that they related to what had gone before and, ultimately, to the context of what was at issue in the trial as a whole – the guilt or innocence of the defendant (cf. Drew 1985: 137).
Questions and Answers in the English Courtroom (1640–1760)
Table 15. Interactional intent of prosecution counsels’ utterances in Period 3 (figures in brackets show percentages) Move Judge Initiation Responseinitiation Response Report Follow up Follow up-initiation Problem Total
Addressees (in Period 3) Witness Defendant Court
Total Unknown
16 0
9 0
14 1
3 0
2 0
44 (45.8) 1 (1.05)
0 10 0 2
0 0 0 15
1 11 0 1
0 3 0 0
0 5 1 1
1 (1.05) 29 (30.2) 1 (1.05) 19 (19.8)
0 28 (29.2%)
0 24 (25.0%)
1 29 (30.2%)
0 6 (6.2%)
0 9 (9.4%)
1 (1.05 ) 96 (100)
. Strategies of the prosecution counsels Prosecution counsels were present in four trials in Period 3.108 As Table 15 reveals, they utilised 96 utterances, that is, 10.2% of the total utterances during 1640–1679 (cf. Table 3, p. 166). Although the relatively low figures (above) suggest that prosecution counsels played a minor role in the 1640–1679 courtroom, their appearance is nevertheless greater than many historians predict that it should be.109 Like the Period 3 judges, the prosecution counsels’ main addressee was the defendants, followed closely by the judges and witnesses. Notice that all of the utterances that the prosecution counsels addressed to witnesses (i.e. 24 out of 24), and a large proportion of the utterances that the prosecution counsels’ addressed to judges and defendants (i.e. 18 out of 28 utterances in the case of judges, and 16 out of 29 utterances in the case of defendants) functioned as (re)initiations. All but one of the (re)initiations that prosecution counsels addressed to witnesses (that is, 23 out of 24) had the force of a question (I examine that interaction in 8.4). In contrast, all but three of their 17 (re)initiations to judges had the force of a request. That said, prosecution counsels also utilised a number of ‘informs’ (x6) and ‘expresses’ (x4) when interacting with the judges. Their interaction with defendants, their most popular addressee in Period 3, was also mixed, consisting of 7 counsels, 3 questions, 1 request, 7 requires, 3 expresses and 7 informs.110 Interestingly, the majority of the ‘counsels’ and ‘requires’ urged defendants to answer the charges put to them, as in the following example:
Chapter 8. Lawyers’ questioning strategies (1640–1760)
Sir, This is the Grand Jury, the Petty Jury, and your Judge; they require you to give your Answer, whether guilty or not guilty [Trial of Dr. John Hewet, 1658]
This theme was also a topic of one of their three questions, a confirmation seeking polar interrogative (e.g. ‘Do you stand to your Plea not guilty?’). One of the two remaining questions that the prosecution counsels addressed to the defendants appeared to have a rhetorical function. It was motivated by an exchange that Dr. Hewet directed to the judge rather than Attorney General Edmund Prideaux: Dr. H.
My Lord, I hope it is not the sense of the whole Court that they should proceed against me, either to sentence or any other way, till first they clear themselves to me. Mr. At. G. Pray who is the Judge? you must clear your self to him. [Trial of Slingsby, Hewet and Mordant, 1658]
It is worth noting that Dr. Hewet was not given an opportunity to respond, even if he had wanted to. The Attorney General’s retort was immediately followed by a ‘require’ from the Lord President, urging Dr. Hewet ‘to plead’. The (re)initiations that prosecution counsels directed to defendants suggest a similar finding to that of the judges’, namely, that the primary expectation of defendants in Period 3 (1640–1760) was not to state ‘what happened’ (in spite of the contemporary assumption that the defendants should be given every opportunity to do so), but ‘to plead’ so that the Court could establish their guilt or innocence, based on the evidence of the witnesses (see 7.7.1 and Chapter 11). In addition, comments like that of the Attorney General’s ‘Pray who is the Judge? You must clear yourself to him?’ (see Hewet extract, above) give the impression that the prosecution counsels’ primary goal at this time was to work in conjunction with/support the judges. Moreover, the impression seems to be confirmed by the main subject matter of the ‘requests’ that prosecution counsels directed to the judges. Indeed, five of the fourteen requests were attempts to get the judge to require the defendants to (i) perform a specific task (such as pleading to their charge or providing specific information), and/or (ii) inform the defendants of the outcome if they did not do so. The remainder sought something from the judge, including (i) an adjournment, (ii) a writ made available the following day, (iii) that ‘justice’ be done, and (iv) that the prosecution counsel be allowed ‘to go unto Evidence’ (see also 11.5). If we compare these findings with the prosecution counsels’ utterances in Period 4, we find a number of differences. Firstly, the prosecution counsels
Questions and Answers in the English Courtroom (1640–1760)
Table 16. Interactional intent of prosecution counsels’ utterances in Period 4 (figures in brackets show percentages) Move Def. Wit. Initiation Responseinitiation Response Report Follow up Follow upinitiation Problem Total
Addressees (in Period 4) Total Unk. Crier Jury Def. Injured Judge Record. Pros. couns. party couns.
2 0
72 1
7 0
1 0
2 0
7 2
2 0
8 0
0 0
0 0
101 (41.3) 3 (1.2)
0 3 0 1
0 2 0 69
1 22 0 0
0 0 0 0
0 2 0 0
1 7 2 0
0 0 0 2
1 18 1 0
0 2 1 0
0 2 0 0
3 (1.2) 58 (23.7) 4 (1.6) 72 (29.4)
0 4 (1.6)
0 0 28 3 (11.4) (1.2)
0 0 1 0 0 3 6 144 31 1 4 22 (2.4) (58.9) (12.7) (0.4) (1.6) (9.0)
0 2 (0.8)
4 (1.6) 245 (100)
were interacting with a wider variety of participants (cf. Table 15 above and Table 16). Secondly, their involvement as a whole had increased, from 10.2% of the total utterances in Period 3 to 15.7% of the total utterances in Period 4. The majority of those utterances, (that is, 144 out of 245 or 58.9%) were addressed to the witnesses, all but 2 of which were (re)initiations. Thirdly, the prosecution counsels still interacted with the judges and defendants, but the level of that interaction was much less in percentage terms, i.e. 11.4% as opposed to 20.2% in the case of the judges, and 9% as opposed to 30.2% in the case of defendants. Even so, a substantial proportion of these utterances were (re)initiations (i.e. 8 out of 28 in the case of judges, and 3 out of 6 in the case of defendants). The prosecution counsels’ continued use of (re)initiations when interacting with judges is particularly interesting, as it suggests that prosecution counsels utilised an initiator role with powerful as well as powerless participants throughout the EmodE period, albeit infrequently. However, the initiator role between powerful participants tended to involve the utilisation of eliciting devices other than questions (‘requests’ in particular). Notice that the prosecution counsels also adopted an initiator role for nine of their twenty-two utterances with the defence counsels (e.g. participants with a similar role in terms of power). Although the latter were the prosecution counsels’ third most popular addressee, that interaction is too minimal (i.e. 9% of their total utterances in Period 4, that is 22 out of 245) to allow us to ascertain a link between the appearance of the defence counsels and the decline in interaction between the prosecution counsels and defendants in Period 4.
Chapter 8. Lawyers’ questioning strategies (1640–1760)
However, the Period 4 and 5 SPC data strongly suggests that the role of the prosecution counsels in the courtroom itself was strongly affected by the appearance of the defence counsels (I will pick up on this observation at various points throughout Sections 8.2–8.5). In Period 5, the prosecution counsels’ interaction with the witnesses increased again, to 194 utterances. This accounts for 86.6% of their total interaction (cf. their interaction with the judges, which accounts for a mere 2.7%).111 All 194 utterances functioned as (re)initiations, that is, they initiated a new exchange or continued an existing exchange. This level of interaction is considerable, given that they were only present in four of the five trial texts relating to Period 5.112 Taken together, the above figures suggest that the prosecution counsels’ role was different in 1640–1679 than it is today, for their modern equivalents address most of their (re)initiations to the witnesses (see 3.4.1). In Period 4, however, we see a strong shift towards that modern role, as the EmodE prosecution counsels become increasingly involved in the examination of witnesses. I examine the prosecution counsels’ ‘questioning’ of witnesses in Section 8.4, after I have examined the interaction of the defence counsels and their addressees throughout Periods 4 and 5.
. Strategies of the defence counsels (1680–1760) Defence counsels were present in eight of the SPC texts, e.g. four of the five trial texts relating to Period 4, and four of the five trial texts relating to Period 5.113 Like the other examiners, the defence counsels addressed the majority of their utterances to the witnesses (i.e. 246 out of 398, that is 61.8%). As Tables 17 and 18 reveal, all but one were (re)initiations (they initiated a new exchange or continued an existing exchange). Notice that the prosecution counsels’ second most popular addressees were the judges, to whom they addressed 19.6% of their utterances (i.e. [62 + 16 =] 78 out of [255 + 143 =] 398). That said, their active involvement with the judges declined in Period 5 (as highlighted in Section 6.1.5, the defence counsels’ active involvement declined in Period 5 as a whole; see, also, Table 3, p. 166). The Period 4 defence counsels often found themselves in the role of respondent when interacting with the judges (they utilised fourteen ‘responses’ as opposed to thirteen (re)initiations). They also utilised a substantial proportion of ‘follow ups’ (i.e. 16). The same does not appear to be true of the Period 5 defence counsels. Indeed, eleven of the sixteen utterances that defence
Questions and Answers in the English Courtroom (1640–1760)
Table 17. Interactional intent of the defence counsels’ utterances in Period 4 (figures in brackets show percentages) Move Defend. Wit. Initiation Responseinitiation Response Report Follow up Follow upinitiation Problem Total
Unk.
Addressees Total Crier Jury Court Judge Pros. Rec. offic. couns.
0 0
67 1
6 0
4 0
1 0
1 0
7 3
3 1
1 0
90 (35.3) 5 (2.0)
1 0 0 0
0 0 0 68
0 20 0 0
0 0 0 0
0 0 0 0
0 0 0 0
14 19 16 3
8 5 1 1
1 1 0 0
24 (9.4) 45 (17.6) 17 (6.7) 72 (28.2)
0 1 (0.4)
0 1 0 0 0 136 27 4 1 1 (53.3) (10.6) (1.6) (0.4) (0.4)
0 1 62 20 (24.3) (7.8)
0 2 (0.8) 3 255 (1.2) (100)
Table 18. Interactional intent of the defence counsels’ utterances in Period 5 (figures in brackets show percentages) Move
Initiation Response-initiation Response Report Follow up Follow up-initiation Problem Total
Witness
Injured party
33 0 0 0 1 76 0 110 (76.9)
3 0 0 0 0 3 0 6 (4.2)
Addressees Judge Unknown 9 0 2 3 0 2 0 16 (11.2)
8 0 0 2 0 0 0 10 (7.0)
Total Court 0 0 0 0 1 0 0 1 (0.7)
53 (37.1) 0 (–) 2 (1.4) 5 (3.5) 2 (1.4) 81 (56.6) 0 (–) 143 (100)
counsels addressed to judges were (re)initiations. Like the prosecution counsels, the majority of those (re)initiations (i.e. 9) had the function of ‘requests’. It is worth noting that four of the nine ‘requests’ sought the judges’ permission that they be allowed to ask/continue asking a witness some/more questions: ‘I don’t know whether your Lordship will indulge us to ask the Witness a Question or two now’, ‘I beg Leave to ask him a few more Questions’, ‘My Lord, I desire to go on with our Questions’. This appears to confirm that the judge determined the extent to which defence counsels were actively involved in trials at this time (see 3.4.3.1). The remaining sought some action from the judge,
Chapter 8. Lawyers’ questioning strategies (1640–1760)
including that the judge ‘adjudicate’ upon the actions of the opposition, as in the following example taken from the Trial of Christopher Layer: Mr. Hungerford. My Lord, with Submission they ought not to be suffer’d to give Evidence of any Overt Act in Middlesex, before they give Evidence of some Overt Act in Essex; for the proving some Overt Act in Essex is the only Thing which can entitle them to prove any Overt Act elsewhere. For by the Method they would go on in, the Jury may be captivated with a Story of the Gryffin Tavern, and of Mr. Layer’s other Assignations and Actions in Middlesex, which cannot be imputed to him upon this Indictment until some Treason be proved in Essex: I hope therefore the King’s Counsel shall receive your Lordship’s Directions to go on regularly, to begin to give an Account of the Overt Acts in Essex, before they go into another County.
It is worth noting that the Lord Chief Justice responded by informing the defence lawyer that he ‘must give them [the prosecution counsel] leave to go on in their own Method’, before adding ‘if you dare not trust them and us, but will have your own Method, it would be to put us into Confusion’. The judge’s last comment was particularly interesting, as he appeared to be positioning himself with the prosecution counsel. As Section 8.6 will reveal, it was not the only occasion when judges sided with the prosecution counsels in the SPC. However, before examining the interaction between judicial examiners and lawyers, I will explore counsels’ interaction with their main addressees, the witnesses, in greater detail. I begin with the prosecution counsels.
. The prosecution counsels’ interaction with witnesses (1640–1760) Questions accounted for 83.9%–95.8% of the prosecution counsels’ utterances when interacting with witnesses. Like the judges, what was the prosecution counsels’ most popular question form when interacting with witnesses in all three sub-periods of the SPC. Indeed, over half of the wh-interrogatives were formed using what (i.e. 104 out of 183: see Table 20). Consequently, what-interrogatives represent a significant proportion of the prosecution counsels’ interrogatives overall (i.e. 29.1% or 104 out of 357).
Questions and Answers in the English Courtroom (1640–1760)
Table 19. Breakdown by force of prosecution counsels’ interaction with main addressees in SPC (figures in brackets show percentages) Period
Counsel
Question
Request
Require
Express
Totals
3 1640–1679 4 1680–1719 5 1720–1760 Total
0 (–) 0 (–) 0 (–) 0 (–)
23 (95.8) 121 (83.4) 177 (88.9) 321 (87.2)
0 (–) 9 (6.2) 1 (0.5) 10 (2.7)
1 (4.2) 15 (10.4) 20 (10.1) 36 (9.8)
0 (–) 0 (–) 1 (0.5) 1 (0.3)
24 (100) 145 (100) 199 (100) 368 (100)
Table 20. Interrogative-types addressed by prosecution counsels to witnesses in SPC (figures in brackets show percentages) Period
Polar
Wh-Q Decl-Q Neg Alt-Q Indirect Elliptical Tag polar polar
Total
3 1640–1679 4 1680–1719 5 1720–1760 Total
6 (19.3) 53 (39.3) 81 (42.4) 140 (39.2)
22 (71.0) 73 (54.1) 88 (46.1) 183 (51.2)
31 (100) 135 (100) 191 (100) 357 (100)
0 (–) 5 (3.8) 8 (4.2) 13 (3.6)
2 (6.5) 1 (0.7) 6 (3.2) 9 (2.5)
1 (3.2) 1 (0.7) 4 (2.1) 6 (1.7)
0 (–) 1 (0.7) 1 (0.5) 2 (0.6)
0 (–) 0 (–) 2 (1.0) 2 (0.6)
0 (–) 1 (0.7) 1 (0.5) 2 (0.6)
Significantly, twenty-one of the prosecution counsels’ wh-interrogatives in Period 3, and all six of their polar interrogatives were information-seeking, suggesting that Period 3 prosecution counsels were not engaging in adversarial (or what Landsman 1990: 517 refers to as ‘contentious’) encounters with witnesses at this time. Indeed, the only prosecution counsel to utilise ‘conducive’ question-types was Attorney General Edmund Prideaux (as I explained in 5.4.2, he utilised two negative polar interrogatives in his examination of John Stapely when the witness did not provide the ‘appropriate’ information to the relatively ‘broad’ what-interrogative which initiated their exchange, e.g. ‘What did he tell you concerning his being entrusted by the King therein’). However, the arrival of the defence counsels in Period 4 coincides with an increased participation on the part of the prosecution counsels, and the adoption of an approach that is more markedly adversarial (i.e. that involves the greater questioning of witnesses in an attempt to establish facts/shape testimony in a way that is beneficial for their case).
Chapter 8. Lawyers’ questioning strategies (1640–1760)
Period 4 prosecution lawyers commonly utilised what-interrogatives as their opening initiation. As the following extract from the Trial of John Giles (1680) reveals, they tended to function in a similar way to ‘give an account of ’ requires (e.g. they enabled witnesses to provide mini-narratives): Mr. Holt.
Mr., Watkins. What did you hear that Giles should say in Gloscester-shire about this Bufiness? Mr. Thompson. What said he about this business of Mr. Arnold? Mr. Watkins. My Lord, All I can say is this, I begin at the Stating some Accounts between Mr. John Giles and Mr. Richmond, I asked Mr. Giles for some Horse-hair to make a Fishing-line. Mr. Giles replied, That he had left very good Hair for me at a Farriers in Glocester, for he and Mr. Herbet Jones made such haste through the Town of Glocester that they did not call for the Horse-hair. I asked Mr. Giles what was the occasion of his haste? Said he, For fear we shou’d be stopt in our Journey, as suspected to be concerned in Mr. Arnold’s Business.
Notice that Watkins faced two ‘opening’ questions formed using what. Fortunately, the repetition did not appear to faze him at all, for he still provided a detailed mini-narrative. It is worth noting that, although two what-interrogatives did occur as part of an opening move in the Period 5 data, they were not meant to function as mini-narrative prompters. Indeed, the questioning move of which they were a part sought very specific information from the witness (i.e. a polarity decision as to whether he attended Mr. Wheatley on a certain date, the time that he attended him, and an explanation as to why): Council.
Thompson.
Call Dr. Thompson. Mr. Thompson was you sent for to Mr. Wheatley on the 5th of June, what Time, and upon what Account. Between Nine and Ten o’Clock on the Fifth of June, I was sent for to Mr. Wheatley, I live in Camberwell, I went to his House, and dress’d him, he said he had been robb’d, and that he believ’d he knew the Man. [Trial of Bartholomew Greenwood, 1740]
Notice that, as the presuppositions of the two what-interrogatives assumed that the doctor did, in fact, attend Mr. Wheatley, the doctor chose to concentrate on providing the missing variables requested by them. The prosecution lawyer’s second and third question to the doctor also requested specific information:
Questions and Answers in the English Courtroom (1640–1760)
Council. Thompson. Council. Thompson.
Did he mention no Particulars. Not while I staid, but I was not there long. What Time was it when you was at Mr. Wheatley’s? It was almost Ten o’Clock, but not quite Ten.
Notice, also, that the second of those questions, the what-interrogative, asked the doctor to confirm evidence that he had already given, namely, ‘what Time’ he had been ‘at Mr. Wheatley’s’. Drew (1985) has shown how modern crossexamining counsel often utilise ‘repeats’ as a means of undermining witness testimony. Citing the example of a victim of an alleged rape who was immediately asked the same question about a car (‘Did it have hubscoops on it’), even though she had answered the first question by stating that she did not ‘even know what they are’, Drew (1985: 137) suggests that: While the jury and others may be unclear about what hangs on whether nor not the defendant’s car had hubscoops, [the design of the counsel’s] turn as a repeat instead of a clarification ‘instructs’ the jury, or provides them the occasion to infer, that the witness’ testimony is not to be believed or trusted.
As the above extract from the Trial of Greenwood (1740), and the following extract from the Trial of Francia (1716) highlight, repeats can be utilised for very different purposes during direct examination sequences. In the case of the former, the purpose of the repeat was to draw the jury’s attention to factual evidence that supported critical elements of the counsel’s ‘story’ (the time that the alleged incident took place was a crucial factor in the Greenwood case). In the case of the latter, it was occasioned by an overly-long ‘elaborate’ given by the witness. Let me elucidate. The Solicitor General in the Trial of Francia (1716) followed up his initial ‘require’ to Smith (see Francia extract, above) by asking him, ‘Is this the book?’. Smith provided the following 236-word answer in response: Mr. Smith. This is the Book; it lay upon the Desk, and I looked into it, and observed this Writing at the one End of it: He said it was his Son’s Writing, and then I shut it again. I opened the Desk, and looked over the Papers; I found there several other Papers and Letters folded up: I took them out, and laid them upon the Desk by the others. Then I searcht the other Parts of the Closet, and laid all the Papers by the other Letters. I desired then to go up Stairs, and I did so: And a Person I saw just now in Court, his Son, went with me; and I searched the Rooms and Boxes, and found several other Papers, and brought them down into the Chamber where the Prisoner was, with Mr.
Chapter 8. Lawyers’ questioning strategies (1640–1760)
Wilcox; I put up all the Papers together, and said I had taken all Things that I thought necessary, and desired to be going. The Prisoner desired to stay and drink some Coffee; we did so, and then brought him down to a House at Westminster. We carried the Papers to the Office, and delivered them to Mr. Horatio Walpole. When I was in the Chamber with him, he seemed to be under a Concern when I put up the Book; and I asked him what that Book was? He said it was the Book of his Correspondence abroad.
Although Smith provided the information that the Solicitor General had requested, he faced the same question from the Attorney General, Sir Edward Northey:114 Mr. Att. Gen. Mr. Smith. Mr. Att. Gen. Mr. Smith.
Is this the Book? Yes. You say you saw several Letters there, did you look into them? I saw they were directed to Francia: There was a Parcel that lay open in Folio; and others that lay folded up in the Desk. Mr. Att. Gen. What became of the Book and Papers after you had them? Mr. Smith. We went with them and the Prisoner, and delivered the Prisoner into a House at Westminster; and then went to the Office, and staid till Mr. Walpole came, and then delivered the Book and Papers to him. Mr. Att. Gen. Did you deliver any Papers to him but what were seized there? Mr. Smith. No. Mr. Att. Gen. What is become of Mr. Wilcox? Mr. Smith. He is Dead.
As the extract reveals, the witness provided a confirmatory ‘yes’ only (cf. the interaction between the judge and Oates in the Trial of Edward Coleman, 1678; see 7.4). Notice that the Attorney General followed up his initial confirmationseeking question with a series of polar and wh-interrogatives whose design gave the witness much less leeway than he had enjoyed initially. The approach utilised by the Solicitor General and Attorney General in the Trial of Francia (1716), that is, a progression from open-ended to increasingly controlling questions was a characteristic of examination sequences between prosecution lawyers and witnesses in the Period 4 and 5 trial texts in general. In other words, for those interactions when opposing counsel were also present. It also typifies the direct examination of witnesses in courtrooms today, according to Tiersma
Questions and Answers in the English Courtroom (1640–1760)
(2000). Indeed, lawyers tend to utilise the strategy when they want to steer ‘the testimony of witnesses’ in a way that produces ‘persuasive evidence to support the critical elements of [their] client’s story’: in simple terms, when they want to ‘advance their client’s case’ (Tiersma 2000: 160–161). Occasionally, the prosecution counsels would utilise ‘requires’ to initiate examination sequences before switching to more restrictive questions. For example, the prosecution lawyer in the Giles trial (1680) began his examination of Mr. Hobbs with two ‘requires’, and then switched to a series of wh-interrogatives which sought specific information regarding Mr. Arnold’s injuries (Mr. Arnold was Giles’s alleged victim): Mr. Thompson. Mr. Hobbs, Pray tell how you found Mr. Arnold when he was Wounded. Mr. Hobbs. I found Mr. Arnold Bleeding. Mr. Thompson. Tell what Wounds there were. Mr. Hobbs. Two in his Arm, Two others upon the Face, another upon the Throat, which bled very much; another two upon the Breast, and one in the Belly. Mr. Thompson. What depth might that be? Mr. Hobbs. Two Inches and an half long. Mr. Thompson. Where else? Mr. Hobbs. There was another upon his Breast. Mr. Thompson. What depth? Mr. Hobbs. They were not very deep, but there was one upon the Belly Six Inches and an half; there was Two through his Arm, and a Wound and several Bruises in his Head. [Trial of John Giles, 1680]
The point of the above was to spell out the victim’s precise injuries for the jury, of course. However, when Period 4 and Period 5 prosecution counsels utilised restrictive wh-interrogatives and other interrogative types with witnesses for the defence, their goal was less about establishing a credible ‘story’ for the prosecution and more about damaging the ‘story’ of the opposition. For example, in the Trial of Greenwood (1740), the counsel for the defence asked a ‘friendly’ witness, one Cicely Mow, whether she knew ‘any Thing of seeing the Prisoner at his Uncle’s on the Fifth of June, and what Time was it?’. Mow offered the following ‘answer’:
Chapter 8. Lawyers’ questioning strategies (1640–1760)
Cicely Mow. I am a Servant to Mr. Greenwood. He lives the Corner of the Savoy. Between Seven and Eight o’Clock, on Thursday Night, young Mr. Greenwood came to our House, and ask’d for his Uncle, I told him he was not at Home, but was gone up to the Genoa Arms in Catherine street, and he said he would go to him, for he had got on a new Fustian Frock and Breeches, and I took up the Flap to look on it.
The prosecution counsel then intervened to ask a question or two of his own: Pros. Co. Mow. Pros. Co. Mow. P. Co. Mow.
Do you usually take up the Flap of Peoples Cloaths that come to your Master’s House? No; but I thought I might take that Liberty with young Mr. Greenwood. What was he dress’d in do you say? In a white Fustian Frock and Breeches, a white Waistcoat and Stockings. How do you know it was the 5th of June? I am sure it was; he was taken up on the Saturday, and it was the Thursday before.
The implication of his initial ‘query’ was that taking up the ‘Flap’ of guests’ clothes was unusual, to say the least (prosecution counsels often responded to and/or requested clarification of something said by a ‘non-friendly’ witness as a way of influencing the jury’s assessment of that information). Mow’s ‘answer’ seemed to confirm that her behaviour was, indeed, out of the ordinary, whilst intimating that her relationship with ‘young Mr. Greenwood’ was such that she felt she could ‘take that Liberty’. The purpose of his other questions was to suggest to the jury that Mow was mistaken in both the clothes that Greenwood had been wearing and also the day of his visit. Moreover, by going on to ask how often these visits occurred, he was able to imply that, as these visits were so irregular, such a ‘mistake’ was highly conceivable: Pr. Co. Mow. P. Co. Mow.
Perhaps you may mistake the Day, how often does he use to come to his Uncles? Once in three Weeks. What just once in 3 Weeks and no oftner? Yes, sometimes oftener. [Trial of Greenwood, 1740]
It is worth noting that not all of the prosecution counsels’ 63 ‘queries’ in Period 5 were designed so as to undermine witnesses’ testimonies. Indeed, a large
Questions and Answers in the English Courtroom (1640–1760)
proportion was used to give credence to factual evidence provided by the latter, when that evidence was crucial to their case. In the Trial of Christopher Layer (1722), for example, Elizabeth Mason was instructed to ‘Give an Account’ of what she knew of some Papers belonging to the defendant. She began by explaining that: Mrs. Mason.
Mr. Layer left two Parcels of Papers with me: He told me they were of the Value of 500 l. He afterwards took them away from me; and afterwards brought them to me again.
The prosecution counsel then asked Mrs. Mason a series of questions designed so as to establish how she had kept the letters for Layer, believing them to be love letters, and, when instructed by Layer, had brought them to him. At which point, Cheshyre asked Mason a rather unusual question, given her ‘friendly’ status: Mr. Serj. Cheshyre. Did you meddle with them, or open them? Mrs. Mason. No, Sir; I put them in my Trunk: They lay there all the time.
Its purpose was to help establish that the letters were always sealed when in the latter’s keeping, as Sergeant Cheshyre and the Attorney General’s later questions to both Mason and Speare, the messenger who collected the letters from Mason, confirm: Mr. Serj. Cheshyre. Mrs. Mason. Mr. Serj. Cheshyre. Mrs. Mason. Mr. Serj. Cheshyre. Mrs. Mason. Mr. Serj. Cheshyre.
Were they there when the Officers came? Yes, Sir. Was you there when the Bundles were opened? I was there. Did you mark the Papers your self? I did. Look upon the Papers, and see if you find your Mark on those Papers? Mrs. Mason. Yes, this is my Mark. Mr. Serj. Cheshyre. Mr. Speare, you was present at the opening of them? Mr. Speare. I was. They were sealed up when I opened them. Mr. Serj. Cheshyre. Did you put your Name on them? Mr. Speare. I did put my Name on them. Mr. Serj. Cheshyre. Were they out of your Custody before you put your Name on them? Mr. Speare. No; they were not.
Chapter 8. Lawyers’ questioning strategies (1640–1760)
Mr. Serj. Cheshyre. Did Mr. Turner put his Name to them? Mr. Speare. He put his Name to them, before ever they were out of my Custody. Mr. Att. Gen. You have mark’d all those Papers. You are sure those are the Papers you took out of the Trunk in Mrs. Mason’s Lodging? Mr. Speare. I am sure they are. Mr. Att. Gen. Shew them to Mrs. Mason. Mrs. Mason, were those Papers in the Bundles that were deliver’d to you by Mr. Layer? Mrs. Mason. Yes, Sir; they were. Mr. Att. Gen. You have mark’d those Papers, have you not? Mrs. Mason. Yes, I have. [Trial of Christopher Layer, 1722]
This suggests, then, that the Period 5 prosecution lawyers were aware of the importance of designing their questions so that they did not just relate to those that they followed (i.e. the immediate questioning sequence of which they were a part), but also to what had gone before and, ultimately, to the context of what was at issue in the trial as a whole (see Drew 1985: 137). Indeed, the SPC data relating to the eighteenth century suggests that the importance of doing so intensified with the arrival of the defence counsels, for they often asked about the same ‘evidence’, but from a very different perspective. Moreover, as will become clear, the differing perspectives occasionally became glaringly obvious, because of the EmodE practice of allowing prosecution and defence lawyers to intervene in the questioning sequences of the other (see Sections 8.5 and 8.6).
. The defence counsels’ interaction with the witnesses The defence counsels addressed 53.3% of their utterances to witnesses in Period 4 (i.e. 139 out of 255), and 76.9% of their utterances to witnesses in Period 5 (i.e. 110 out of 143). All but one were (re)initiations. As previously explained, the majority of these (re)initiations had a ‘questioning’ function in each sub-period (i.e. 123 and 104 respectively). The defence counsels’ favoured interrogative-type was the polar interrogative (see Table 21). The reader will be aware that the only other examiner to favour the polar interrogative above the wh-interrogative when interacting with the witnesses was the Court in the Court-martial of Ambrose (1745). That said, only 33.5% of the defence coun-
Questions and Answers in the English Courtroom (1640–1760)
Table 21. Interrogative-types addressed by defence counsels to witnesses in Periods 4 and 5 Period
Polar
Wh-Q
Decl-Q
Neg polar
Alt-Q
Indirect polar
Negative decl-Q
Total
4 1680–1719 5 1720–1760 Total
64 (47.8) 45 (39.1) 109 (33.5)
51 (38.0) 42 (36.5) 93 (28.6)
6 (4.5) 10 (8.7) 16 (4.9)
8 (6.0) 7 (6.1) 15 (4.6)
3 (2.2) 10 (8.7) 13 (4.0)
2 (1.5) 0 (–) 2 (0.6)
0 (–) 1 (0.9) 1 (03)
134 (100) 191 (100) 325 (100)
sels’ questions adopted this form, whereas polar interrogatives accounted for 62.9% of the Court’s interrogatives. The defence counsels’ favouring of the polar interrogative may be due, in part, to the examination sequence itself. Let me elucidate. Prosecution counsels began the examining process (Beattie 1986) in the EmodE period, as they do in today’s courts. This meant that defence counsels regularly found themselves having to secure evidence from witnesses that ‘countered’ or ‘contradicted’ facts previously established by the prosecution counsels. Polar interrogatives are ideally suited to such a purpose, for they provide a means by which the questioner can restrict the choice of answers and, in conjunction with more explicitly ‘conducive’ question-types, shape the respondent’s testimony so that s/he produces persuasive evidence in support of their client’s case. Occasionally, the defence lawyers’ desire to direct the testimony of the witnesses was made clear from the outset, by which I mean, defence counsels utilised polar interrogatives to initiate an examining sequence. This was especially the case in Period 4. Indeed, Period 4 defence lawyers utilised polar interrogatives to initiate an examining sequence of a witness on eight occasions (out of a possible 42). Several of these were ‘Do you know’ questions, as when Mr. Phipps asked Oldfield ‘Do you know Capt. Porter’ in the Rookwood trial (1696), and Mr. Hungerford asked Mary Meggison ‘Do you know of any Offers that were made to the Prisoner, and by whom?’ in the Francia trial (1716). However, as another initiating polar interrogative utilised by Hungerford reveals, the witnesses still tended to provide a mini-narrative: Then Lucy White was sworn. Mr. Hungerford. Was you by, or in hearing, when any Offers were made to the Prisoner.
Chapter 8. Lawyers’ questioning strategies (1640–1760)
White.
Upon the Seventh of September I went to see the Prisoner in Newgate. He told me Mr. Buckley was to be there with him, and desired me to conceal my self in the Room, that I might hear what past, and I did so. When Mr. Buckley came he spoke about one Flint; and afterwards Mr. Buckley ask’d him several Questions about Mr. Harvey. He said he knew nothing but that he was innocent. Mr. Buckley told him he must swear right or wrong for the Government; if he would not, he himself would swear High Treason against the Prisoner; for he had taken Money of my Lord Townshend, and done nothing for it. Mr. Hungerford. Did you see any Thing of two Warrants Mr. Buckley had at that Time? White. No. Mr. Hungerford. Did Mr. Buckley see you? White. No, I conceal’d my self under the Feet of the Bed. Mr. Att. General. You say this was the Seventh of September. What Year? White. In the Year 1716. [Trial of Francis Francia, 1716]
It is worth noting that the majority of the defence counsels’ polar interrogatives occurred once an examination had begun and, as can be gleaned from the above, tended to receive shorter answers than polar interrogatives in initial position. However, unlike the above, they were generally interspersed between other interrogative types, the wh-interrogative in particular. Polar interrogatives were also used to seek clarification of something said by another, as when Charles Gastineau was asked, ‘Can you be positive that you took a list of these warrants at that time?’. That said, Period 5 defence counsels utilised slightly more wh-interrogatives for this purpose than polar interrogatives (i.e. 14 as opposed to 12). The following extract from the Baker trial (1751) provides an example of interrogatives being used both to ‘clarify’ and also ‘call into question’. The counsel for the prosecution in the Baker trial (1751) had directed John Sedgwick to: Q. Sedgwick.
Look upon this, and tell us whether it is your own hand writing, or not? [That is the false one] I believe not, my lord, here is a K I don’t think to be like mine.
Questions and Answers in the English Courtroom (1640–1760)
Q. Sedgwick.
Look upon the name William Webb, is that Mr. Webb’s writing? I have seen him write many hundred times; I believe it is not.
The witness was then cross-examined by the counsel for the prisoner: Counsel for the Prisoner. Can you be positive your name there is not your hand writing? Sedgwick. I am certain it is not. Counsel for the Prisoner. How come you to be certain, you was not just now? Sedgwick. There are the letters k, e and S, and the n in John, are not like mine. Counsel for the Crown. Is the whole name of your own hand writing, as it there stands, or is it not? Sedgwick. I am positive it is not.
Notice that the defence lawyer utilised a polar interrogative and a whinterrogative to contest the evidence just given. Notice, also, that the counsel of the crown immediately countered the defence counsel’s attempt to undermine Sedgwick’s testimony by asking Sedgwick to provide the same information that he had initially, namely, that the handwriting was not his own. On this occasion, Sedgwick’s ‘answer’ was more categorical. Indeed, ‘I believe not’ became ‘I am positive it is not’ (see Chapter 10 for a discussion respecting the wording of witnesses’ ‘answers’). The respective counsels often utilised their ability to intervene in the others’ questioning session strategically, by which I mean they would attempt to present evidence that was potentially damaging to their case from a perspective that favoured their own version of events. Notice, for example, that Phipps, the defence lawyer, chose to intervene in the proceedings after the prosecution lawyer (Cowper) complained that the witness (Harris) did not seem to know ‘which side [he] was of ’ (see underlined utterance; for clarity, I have included an indication of each participant’s role): [Context: continuation of examination of Captain Harris . . . ] Mr. Att. Gen. (prosec.) Can you Remember what Discourse you had that Saturday Night? Mr. Cowper. (prosec.) You say that on Saturday the 22d. Mr. Rookwood gave you the List. Capt. Harris. (witness) I do not say it was the 22d. for I cannot swear to the Day of the Month but it was the Second
Chapter 8. Lawyers’ questioning strategies (1640–1760)
Mr. Cowper. (prosec.)
Capt. Harris. (witness) Mr. Cowper. (prosec.) Capt. Harris. (witness) L. C. J. Holt. (judge) Mr. Cowper. (prosec.)
Capt. Harris. (witness)
L. C. J. Holt. (judge)
Capt. Harris. (witness) Mr. Phipps. (defence) Capt. Harris. (witness) Mr. Phipps. (defence) Capt. Harris. (witness)
Mr. Phipps. (defence)
Saturday that we were to have gone about this Business. You say he gave you a Lift of Names: Pray, when he gave you that List, what Discourse happened in the Room, just before, or after the giving of the List? Sir, I think I told the Court that before. Sir, I desire you would repeat it. My Lord, I humbly desire to know whether I am to answer that Gentlemen that Question? Yes, you are to answer, being upon your Oath, and to tell the whole Truth. I ask him the Question so fairly, what Discourse introduced the giving of the List, and what followed upon it, that I perceive this Gentleman does not know which side I am of. Mr. Rookwood said we were to go to Turnham-Green; and he told me, that I was to be one of his Party, that we were to attack the Prince of Orange. You say you were to be one of his Party: Pray was it there that he told you, you should be his Aid de Camp. Yes, he did tell me I was to be his Aid de Camp? Whose Hand-writing was that List? I cannot tell, I had it from that Gentleman. But whose Writing was it? Indeed I know not his Hand-writing, and therefore cannot tell whose it was: He is for his Life, but I believe he cannot deny any thing that I have said, I suppose not: I shou’d be very sorry to accuse Mr. Rookwood of any thing that was not true. Pray whose Names were in that List? [Trial of Ambrose Rookwood, 1696]
Phipps’ questions centred around Harris’s ability to confirm that the list Rookwood had given to Harris was written by Rookwood. However, it may be more appropriate to say ‘inability’, for Phipps’ second question was designed to undermine Harris’s first answer by implicating, via the conjunction but, that he had not, in fact, answered the question. Harris’s ‘answer’ to Phipps’ repeat question is also interesting. Notice that he emphasised that Rookwood
Questions and Answers in the English Courtroom (1640–1760)
could ‘not deny any thing that [he had] said’ and, moreover, that he would ‘be very sorry to accuse Mr. Rookwood of anything that was not true’. This may suggest that Harris interpreted Phipps’ second question as an accusation (that, for example, he was deliberately withholding information or, more damagingly, lying).
. Questioning the questioners It is worth noting that judges also intervened in the respective counsels’ examination sequences. Most of those interventions were addressed to the witnesses. But this was not always the case. Indeed, the judge in the Rookwood trial (1696) chose to ‘cross-examine’ a defence lawyer, Sir Bartholomew Shower, in front of the whole court (cf. today’s courts, where lawyers ‘approach the bench for a side-bar conference’ (Tiersma 2000: 169)).115 [Context: Captain Porter had been recalled to answer questions regarding the first meeting – or meetings – between him and the defendant, including their whereabouts, who was present and what was discussed, etc.] Capt. Porter. They did there discourse the whole Matter, and Sir George Barclay was not for going at that time, because there was so many People that went with the King; that there wou’d not be a good Opportunity to effect the Design: but I told him they wou’d go off after the Hunting was over, and so it was agreed upon to go on with the Undertaking. Mr. At. Gen. Pray, at that time did Mr. Rookwood pretend to dislike the Affair, or refuse to be any way at all concern’d in it? Capt. Porter. No, my Lord, I can’t remember that he spoke one word.
Notice that the Attorney General worded his polar interrogative in such a way that it presupposed – and communicated to the jury – that Rookwood did not actually ‘dislike the Affair’ (the ‘Affair’ being a treasonable plot against King William). Although Loftus (1975) has shown that the way in which questions are worded can have an impact on the witness’s testimony, Capt. Porter’s ‘answer’ shows no evidence of such manipulation.116 Indeed, he informed the court that the defendant had not spoken ‘one word’ at the meeting. The judge’s next exchange to the defence counsel picked up on Rookwood’s silence:
Chapter 8. Lawyers’ questioning strategies (1640–1760)
L. C. J. Holt. Why then, suppose at the Globe-Tavern, such an Expression had not dropt from the Prisoner, but a Man is present at two Consults that are held about the Death of the King, but says nothing either at the first or second, What wou’d you make of that Case?
Shower, the defence lawyer, responded by stating that Rookwood’s presence did ‘not amount to a proof of Treason’. Significantly, the judge pursued the matter, pointing out that there were two meetings not one (in today’s court, we would expect the prosecution counsel to engage in such argument with the opposition). Shower was careful to insist that he ‘did not know whether there were two Meetings or one’, but that it did not really matter, because Rookwood could have attended them both ‘by accident’. The judge did not appear to agree: L. C. J. Holt. Sir. B. Shower. L. C. J. Holt. Sir. B. Shower.
How is this by accident? It does not appear that it was by Design or Appointment. They were Acquaintance. He had no acquaintance with him but in Sir George Barclay’s company. L. C. J. Holt. But besides, there was an express Consent at the Globe-Tavern, when Rookwood said there’s an end of it. Sir. B. Shower. That is as much as to say, I will not do it, I will not go with you – Mr. Soll. Gen Sir George Barclay was the Person whom they were to obey; and Harris tells you, he told them what they were to do, and six Horses were first plac’d, and three of them afterwards remov’d. Sir. B. Shower. That won’t affect him what Sir George Barclay said, any more than Lewis’s appointing of the Horses. L. C. J. Holt. Then there is another thing, Why did he give a List to Mr. Harris? the List that was given had Mr. Rookwood’s Name at top, as he was to command the Party, and there was Harris’s Name and Hare’s Name as of his Party; that is, their feign’d Names; Mr. Rookwood’s feign’d Name was Roberts that was at top, and they were to go to Turnham-Green , and Rookwood told Harris, he shou’d be his Ayd du Camp.
Notice the presupposition of many of the judge’s utterances. The whyinterrogative in the final interchange (above), for example, presupposed that Rookwood had given him the list and, by implication, was responsible for its contents. In other words, the judge seemed to be assuming that Rookwood was
Questions and Answers in the English Courtroom (1640–1760)
guilty. One of the disadvantages faced by defence counsel during the period covered by the SPC was that they had to prove their clients’ innocence (cf. the modern courtroom, where a defendant is presumed innocent, and guilt must be proven ‘beyond reasonable doubt’). Whether this meant that judges in general sided with the prosecution counsels and against the defence counsels is difficult to tell (especially given the low frequency of exchanges between the judges, prosecution counsels and defence counsels in the trial data relating to Period 4 and Period 5). However, the example of Elizabeth Cellier (p. 196) suggests that judges were prepared to revise their ‘guilty’ assumptions when faced with contradictory evidence (cf. the Salem magistrates in Archer 2002: 18–22, who assumed that any who did not give them the answers they wanted or resisted any accommodation to their version of the truth were lying and/or being ‘uncooperative’).
. Insights gained The role that we associate with lawyers today – that of main questioner – was still developing during the period covered by the SPC data (1640–1760), which helps to explain why the questioner role was not limited to them alone, and why they were not the main questioners for a large part of our period. Indeed, in Period 3 especially, that role was mostly associated with the judicial examiners (see 6.3 and Chapter 7). However, as the EmodE period progressed, we see a pattern emerging, that is to say, more active counsels usually signalled a less active judicial examiner (whether that be the judge, court or recorder). We also see the emergence of a new relationship between the respective counsels and the judicial examiners. Indeed, as Sections 7.4 and 8.6 (above) reveal, some judges were beginning to ‘play a reactive [as opposed to pro-active] part in proceedings’ (Landsman 1990: 520), and some defence lawyers were prepared to stand their ground when the judicial examiners ‘questioned’ the credibility and accuracy of their witnesses (and thus, their case).117 It is also worth noting that the introduction of defence counsel led to the emergence of a new discourse practice in the EmodE courtroom. By this I mean, the presence of lawyers acting on behalf of the prosecutor and defendant seemed to lead to a recognition that the respective parties should be responsible for providing persuasive evidence (the inquisitorial system, in contrast, tended to maximise judicial power and minimise the extent to which the prosecutor and defendant were able to develop proof; see Langbein 1978: 315). This, in turn, led to a more thorough questioning of witnesses and, con-
Chapter 8. Lawyers’ questioning strategies (1640–1760)
versely, to the development of more explicitly adversarial questioning strategies. Indeed, we see the beginnings of the system we have today – opposing sides seeking to create/communicate a credible ‘story’ via their use of questions. Moreover, that ‘story’ was increasingly being established over a (number of) questioning sequence(s), and often involved more than one participant (see 5.5 and 8.2–8.3). Questions, then, were not only used to seek information/clarification/confirmation, but were also used by the respective counsels (in Periods 4 and 5, especially) as a means by which they might control and, on occasions, undermine their respondents (cf. Walker 1987: 59–60). The only way to ascertain how successful they were is by studying the ‘answers’ that their ‘questions’ procured, of course. Indeed, the co-dependent relationship between the examiner and the examined necessitates it (cf. Archer 2002: 9; see also 3.3.2). Consequently, in Chapters 9 and 10, following, I turn my attention to the main respondents in the SPC, the defendants and the witnesses.
Chapter 9
Defendants’ strategies (1640–1760)
. The multiple discourse goals of defendants Chapters 7 and 8 have revealed that questions were commonly utilised by the EmodE primary examiners, especially when interacting with witnesses, and that they served a variety of micro and macro purposes, including seeking information, clarification, confirmation and, in the case of the lawyers, constructing a ‘story’ or secondary ‘reality’ for the jury. Questions, in turn, often exhibited controlling, undermining and accusing functions. Yet, the judicial examiners and lawyers were not the only participants to utilise questions regularly in the EmodE courtroom, for the defendants also did so (see 6.3). As we might expect, given their ‘right’ to ask questions of witnesses as they gave their evidence, defendants tended to address most of their ‘questions’ to witnesses (i.e. 164 out of 185; see Table 5, p. 172). The purpose of this chapter is to examine those ‘questions’, with the specific aim of determining: 1. The types of interrogatives/pragmatic questions defendants utilised when interacting with the witnesses, and their frequency. 2. The primary function of those questions (e.g. to elicit information/confirmation/clarification/other). 3. The effect of the defendants’ powerlessness on the ‘potency’ of their questions and, in particular, the extent to which the capacity of interrogative syntax to constrain what can follow diminished because of their role. 4. Evidence of a changing role, as the EmodE period progressed. Of course, the ‘questioner’ role was not the only role that EmodE defendants were ascribed in the EmodE courtroom: Like their modern counterparts, they were there to ‘answer’ allegations made about them. Consequently, I also explore EmodE defendants’ use of ‘answers’ to determine: 1. The extent to which their ‘answers’ supplied the requested information/ agreement/disagreement.
Questions and Answers in the English Courtroom (1640–1760)
2. The extent to which their ‘answers’ were the type of response that their corresponding question-type typically expects, especially given the fact that logically well-formed replies or, alternatively, responses that conform with expectations, can be one of many pragmatically appropriate answers (Quirk et al. 1985: 806). The main argument of this chapter is that some defendants (albeit a small number) continued to take advantage of their right to question witnesses, in spite of the introduction of defence lawyers (i.e. in Periods 4 and 5). I also point out that the defendants’ use of (re)initiations was not limited to questions which they directed at witnesses (i.e. someone in a similar ‘powerless’ role), for they addressed a substantial number of ‘requests’ to the primary examiners. I suggest that this meant that EmodE defendants did not adopt a respondent role when interacting with the primary examiners as often as one might expect. As Section 9.2 (following) will reveal, this was especially the case in Period 3 (1640–1679), suggesting, in turn, that the defendants’ role in Period 3 (i.e. before the arrival of the defence counsels) was very different from what it is today. I begin by identifying the discursive norms of the defendants, including their regular addressees in the SPC overall, and the specific sub-periods (9.2 below). Sections 9.3–9.4 then concentrate on the defendants’ interaction with the witnesses and, to a lesser extent, the judges, looking specifically at their use of ‘questions’, and 9.5, on the defendants’ interaction with the judges, looking specifically at their use of ‘answers’.
. The defendants’ strategies Defendants interacted with participants adopting a wide variety of roles in each sub-period relating to the SPC (see Tables 22–24 below). Notice that the defendants addressed the majority of their utterances, that is, 75.4% (or 177 out of 235) to the judges in Period 3 (see Table 22). In Period 4, they had two main addressees, the judges and the witnesses, to whom they addressed 38% (i.e. 38 out of 100) and 27% (i.e. 27 out of 100) of their utterances respectively (see Table 23). The witnesses were their main addressees in Period 5, with 95.7% of their utterances (that is, 132 out of 138; see Table 24). Although the above figures suggest that defendants interacted most frequently with witnesses during those sub-periods in which the defence counsels were present and, supposedly, speaking on their behalf, it is worth noting that
Chapter 9. Defendants’ strategies (1640–1760)
Table 22. Interactional intent of defendants’ exchanges in Period 3 (figures in brackets show percentages) Move
Addressees Total Witness Court Unknown Jury Court Judge Pros. King’s offic. couns. couns.
Initiation Responseinitiation Response Report Follow up Follow upinitiation Problem Total
4 0
6 0
3 0
0 0
0 0
41 47
1 1
0 1
55 (23.4) 49 (20.9)
0 1 0 2
2 5 0 1
1 5 0 0
0 0 1 0
17 0 0 0
28 13 17 30
3 1 1 2
0 0 0 0
51 (21.7) 25 (10.6) 19 (8.1) 35 (14.9)
0 9 (3.8)
0 0 1 17 (0.4) (7.2)
0 7 (3.0)
0 14 (6.0)
1 0 177 9 (75.4) (3.8)
0 1 (0.4)
1 (0.4) 235 (100)
Table 23. Interactional intent of defendants’ utterances in Period 4 (figures in brackets show percentages) Move
Addressees Total Judge Witness Pros. Injured Recorder Unknown Crier couns. party
Initiation 6 21 Response3 0 initiation Response 14 0 Report 12 3 Follow up 2 1 Follow up- 1 12 initiation Problem 0 0 Total 38 37 (38.0) (37.0)
1 0
1 0
1 0
2 0
5 0
37 (37.0) 3 (3.0)
0 1 0 0
0 2 0 0
3 3 1 0
0 4 1 0
0 0 0 0
17 (17.0) 25 (25.0) 5 (5.0) 13 (13.0)
0 2 (2.0)
0 3 (3.0)
0 8 (8.0)
0 7 (7.0)
0 5 (5.0)
0 (–) 100 (100)
the defendants’ interaction with witnesses in Period 5 related solely to two defendants, Captain Ambrose and Christopher Layer. The first defendant, Captain Ambrose, faced a court-martial in 1745, and, crucially, no counsel were present. The second defendant, Layer, was supported by two defence lawyers in his trial for High Treason. Nevertheless, like Ambrose, the majority of the utterances that he directed to witnesses (i.e. 44 out of 46 as opposed to 85 out of 86 for Ambrose) had the force of a ‘question’, which suggests that he made
Questions and Answers in the English Courtroom (1640–1760)
Table 24. Interactional intent of defendants’ utterances in Period 5 (figures in brackets show percentages) Structural function Initiation Responseinitiation Response Report Follow up Follow upinitiation Problem Total
Witness Judge Court
Addressees Total Member of No explicit Unknown court addressee
19 0
0 0
2 0
0 0
0 0
1 0
22 (15.9) 0 (–)
0 0 1 112
0 1 0 0
0 0 0 0
0 0 1 0
1 0 0 0
0 0 0 0
1 (0.7) 1 (0.7) 2 (1.4) 112 (81.2)
0 132 (95.7)
0 1 (0.7)
0 2 (1.5)
0 1 (0.7)
0 1 (0.7)
0 1 (0.7)
0 (–) 138 (100)
extensive use of his ‘right’ to ask questions of the witnesses as they gave their evidence (cf. Section 3.4.2). In contrast, the remaining Period 5 defendants – Bartholomew Greenwood, William Sloper and William Baker – seemed to prefer to ‘put their cases entirely in the lawyer’s hands’ (cf. Landsman 1990: 547). Given the fact that defendants were in court to answer allegations made about them/explain their behaviour, we might expect the response to be a frequent function of their utterances when addressing the primary examiners. However, as the above tables reveal, this was only the case in Period 3 (see Table 22). Notice, for example, that all 17 of the utterances that defendants addressed to the court officials functioned as ‘responses’ and, in turn, could be classified as ‘answers’ (i.e. they provided information that had been directly elicited by a question). As court officials were relatively inactive in the SPC overall, I have not highlighted their specific use of questions, but it is worth noting that they tended to utilise highly formulaic questions such as the following, ‘X, hold up thy hand, what sayest thou, art thou guilty of this horrid Act of [. . . ] whereof thou standest indicted, or not guilty’. It is also worth noting that all of the court officials’ questions to defendants shared one theme – soliciting a plea – but that defendants did not always provide the appropriate ‘answer’ to these questions immediately. As the following extract from the Trial of Harrison (1660) reveals, this was usually because the defendants chose to address an initiation of their own to the judges rather than ‘answer’ the court official’s question (for clarity, I provide an indication of the speaker’s addressees):
Chapter 9. Defendants’ strategies (1640–1760)
Cler. [to defendant] Thomas Harison, Hold up thy hand, art thou guilty or not guilty Har. [to clerk] If I should say I am not guilty, I should wrong my own conscience, yet in matter and form as it is laid down in this Indictment, I am not guilty. Cler. [to defendant] Then you plead not guilty. Har. [to judge] My Lord, I desire I may have counsell afforded me, and time to make my defence, for I have been kept close prisoner in a dark Chamber, and had no notice of my Tryal till five of the clock in the morning, that I am altogether unprepared. Judge [to defendant] You are to plead guilty or not guilty, for in cases of Treason Counsel is not to be assigned, for that would make it justifiable, and that it were not Treason, and you would be quit, but if it be treason, then it is not justifiable. Har. [to clerk] I am not guilty. Cler. [to defendant] How wilt thou be tryed. Har. [to clerk] By the Lords Lawes, and by the good and wholesome Laws of the Land. Cler. [to defendant] Wilt thou be tryed by God and the Countrey. Har. [to clerk] He answered that was a profane word. Then the Judge answered he shall be turned over to God and the Countrey. Har. [to judge] No Sir, I will be tryed by God and the Country. Cler. [to defendant] God send thee a good deliverance
If an EmodE defendant pleaded guilty, he was set aside to be sentenced at the conclusion of the session. As the above extract reveals, if s/he declared him/herself not guilty the clerk asked him/her how s/he would be tried (see first underlined utterance, above). As Beattie (1986: 337) explains, ‘the only acceptable answer was “by God and my Country”, that is to say by the jury’. Notice that Harrison eventually supplied that answer, but only after the court clerk addressed a pointed question to him (see second underlined utterance). Harrison was not the only defendant to exhibit an unwillingness to plead. Indeed, the court clerk had to ask some defendants to plead several times. However, ‘standing mute’ or refusing to plead, was not an advisable defensive strategy in Treason trials, as it was simply taken as an acknowledgement of guilt. Indeed, ‘after sufficient warning the prisoner in such cases was punished as though he had pleaded guilty’ (Beattie 1986: 337; but see Chapter 11).
Questions and Answers in the English Courtroom (1640–1760)
Court officials were not really primary examiners, of course. Yet, the interactional intent of the defendants’ interaction with the judges (their main addressee in Periods 3 and 4) highlights that defendants adopted the respondent role even less with them than with the court officials (i.e. on seventy-five occasions or 42.4% of the time in Period 3 and on seventeen occasions or 44.7% of the time in Period 4). Forty-two of these [= twenty-five in Period 3 and seventeen in Period 4] were ‘responses’, twenty-four of which were ‘answers’ to ‘questions’ [= twelve in Period 3 and twelve in Period 4]. The remaining fifty utterances [= forty-seven in Period 3 and three in Period 4] were ‘responseinitiations’ (see 4.4.1 for a definition of the categories). Yet, only one of the ‘response-initiations’ in Period 3 functioned as an ‘answer’, albeit in an implicit way. The defendant in the Coleman trial (1678) stated that the main prosecution witness (Oates) ‘did declare he did not know’ him. The comment prompted the judge to ask ‘Can you prove that’. Coleman’s ‘answer’ was to ‘appeal to Sir Tho. Dolman, who is now in Court, and was then present at the Council-Table’. As the ‘appeal’ implied that Sir Dolman would be able to provide proof, the judge immediately directed him ‘to speak on the behalf of the Prisoner’. The ‘response-initiation’ was not the only (re)initiation category to be utilised frequently by defendants in Period 3, for the ‘initiation’, and the ‘follow up-initiation’ also accounted for a substantial proportion of the utterances that defendants’ addressed to their judges in particular (i.e. forty-one and thirty respectively; cf. Period 4, where defendants addressed six ‘initiations’ and one ‘follow up-initiation’ to their judges). Indeed, taken together, the three (re)initiation categories accounted for two thirds (i.e. 66.7%) of the defendants’ interaction with the judges in Period 3. This means, then, that Period 3 defendants tended to adopt an initiator role when interacting with their judges, that is to say, they utilised utterances that initiated a new exchange or continued an existing exchange). In contrast, the three (re)initiation categories accounted for less than a third of the Period 4 defendants’ interaction with their judges (i.e. 10 out of 38 or 26.3%). This is not to say they were therefore adopting a respondent role, for ‘responses’ accounted for only 36.8% of the utterances that defendants addressed to the judges (i.e. 14 out of 38). Rather, as Table 23 reveals, their interaction involved a combination of ‘initiations’, ‘responses’ and ‘reports’ (as explained in Section 4.4.1, ‘reports’ state information that has not been directly elicited by another participant). As the EmodE defendants’ adoption of an initiator role with their judges in Period 3 (and, to a lesser extent, Period 4) is somewhat surprising, given that their ‘right’ to ask questions related to witnesses (see 3.4.1), 9.3 (following) will
Chapter 9. Defendants’ strategies (1640–1760)
examine their use of eliciting devices with the judges (and with witnesses) in some detail. Section 9.4 then looks at the specific use that defendants made of questions.
. Eliciting devices utilised by defendants when interacting with judges and witnesses An examination of the defendants’ use of eliciting devices for the SPC as a whole reveals that they tended to utilise two in particular, ‘questions’ and ‘requests’ (see Table 25 below). Indeed, over half of the defendants’ (re)initiations (that is, 185 out of 322 or 57.5%) were achieved by ‘questioning’ moves, and over one third (that is, 116 out of 322 or 36%) were achieved by ‘requesting’ moves. As we might expect, the majority of the defendants’ questions (i.e. 164 out of 185) were addressed to the witnesses (see Table 26 below). Table 25. Eliciting devices utilised by defendants (figures in brackets show percentages) Period
Counsel
Question
Request
Require
Totals
3 (1640–1679) 4 (1680–1719) 5 (1720–1760) Total (1640–1760)
2 (1.5) 0 (–) 0 (–) 2 (0.6)
19 (14.2) 35 (63.6) 131 (98.5) 185 (57.5)
103 (76.9) 11 (20.0) 2 (1.5) 116 (36.0)
10 (7.5) 9 (16.4) 0 (–) 19 (5.9)
134 (100) 55 (100) 133 (100) 322 (100)
Table 26. Breakdown by force of defendants’ interaction with witnesses (figures in brackets show percentages) Period
Question
Request
Require
Express
Inform
Totals
3 (1640–1679) 4 (1680–1719) 5 (1720–1760) Total (1640–1760)
5 (71.4) 29 (72.5) 130 (97.0) 164 (90.6)
1 (14.3) 3 (7.5) 0 (–) 4 (2.2)
0 (–) 2 (5.0) 0 (–) 2 (1.1)
0 (–) 4 (10.0) 1 (0.7) 5 (2.8)
1 (14.3) 2 (5.0) 3 (2.3) 6 (3.3)
7 (100) 40 (100) 134 (100) 181 (100)
Questions and Answers in the English Courtroom (1640–1760)
Table 27. Breakdown by force of defendants’ interaction with judges (figures in brackets show percentages) Period
Counsel Question Request Require Express Inform Problem Totals
3 (1640–1679) 4 (1680–1719) 5 (1720–1760) Total (1640–1760)
2 (1.1) 0 (–) 0 (–) 2 (0.9)
12 (6.5) 5 (12.2) 0 (–) 17 (7.5)
91 (49.2) 6 (14.6) 0 (–) 97 (42.7)
10 (5.4) 0 (–) 0 (–) 10 (4.4)
14 (7.6) 5 (12.2) 1 (100) 20 (8.8)
53 (28.6) 23 (56.1) 0 (–) 76 (33.5)
3 (1.6) 2 (4.9) 0 (–) 5 (2.2)
185 (100) 41 (100) 1 (100) 227 (100)
In fact, questions accounted for 90.6% of the defendants’ interaction with the witnesses in the SPC, which means that the defendants’ role when interacting with witnesses was generally that of an initiator. That said, it is worth noting that the majority of those questions (i.e. 130 out of 164) occurred in Period 5. Moreover, a large proportion of those questions (i.e. 85 or 65.4%) were asked by the same defendant – Captain Ambrose. As previously explained, Captain Ambrose did not have the help of counsel during his court-martial (in spite of the fact that the court-martial took place in 1745). He was thus allowed to question his witnesses at length, in a way that was not reflected in the other SPC trial texts (see 9.4 following). Defendants tended to prefer the ‘request’ when interacting with the judges, according to my SPC data (see Table 27). The majority of these requests (i.e. 91 out of 97) occurred in Period 3, suggesting that the defendants’ interaction with judges during the period 1640–1679 was either highly unusual and/or indicative of the special role that defendants enjoyed at that time (I will pick up on these issues in Chapter 11, when I discuss the judges/defendants’ non-questioning interaction in this sub-period).
. The defendants’ use of questions with witnesses and judges In this section, I examine the defendants’ use of ‘questions’ when interacting with witnesses and judges. In respect to the judges, I argue that defendants were careful to attend to any possible challenge implications of the questions they asked their judges. With respect to the witnesses, I point out that defendants utilised a variety of question-types (including conducive questions).
Chapter 9. Defendants’ strategies (1640–1760)
Yet, in spite of the similarity in power, they found it difficult to ‘control’ the witnesses’ responses. I also highlight extracts from one trial – that of Christopher Layer (1722) – which suggest that some defendants chose to work in close collaboration with their defence lawyers when questioning witnesses. Table 28 (below), then, provides a breakdown of the interrogative-types that defendants utilised when interacting with the witnesses and judges. Notice that the defendants favoured the wh-interrogative when interacting with the witnesses (as most of the primary examiners had done), and the polar interrogatives when interacting with the judges. However, there were no discernible differences in their function. By this I mean, defendants regularly asked witnesses and judges questions that sought to procure clarification from them as well as information. That said, there was a discernible difference in directness. Indeed, defendants addressed as many indirect polar interrogatives as polar interrogatives to the judges. As the following example highlights, the force of these initiations was often somewhere between a question and a request: ‘I humbly ask whether it was a reasonable thing to conceive that the Council should extenuate the punishment, if Mr. Oats came with such an amazing account to the Council’ (Trial of Coleman, 1678). The above ‘question/request’ also contains a deference marker (e.g. ‘humbly’). The two strategies – including deference markers and utilising an indirect format – were a common feature of the questions that defendants addressed to Table 28. Interrogative types utilised by defendants when interacting with witnesses and judges Interrogative type Wh Polar Neg. polar Declarative Alternative Indirect polar Rhetorical Ind. Neg. polar Echo Indirect whElliptical Neg wh Total
Pd 3 (1640–1679) Pd 4 (1680–1719) Pd 5 (1720–1760) SPC (1640–1760) Judge Witness Judge Witness Judge Witness Judge Witness 4 6 1 – – 4 2
5 1 – – – 1 –
1 – 1 1 20
– – – – 7
– 1 – 2 – 3 – 1 – 2 – – 9
18 4 8 1 – 1 1 2 – – – – 35
– – – – – – – – – – – – –
42 53 19 13 9 – – – 1 – – – 137
4 7 1 2 – 7 2 1 1 2 1 1 29
65 58 27 14 9 2 1 2 1 – – – 179
Questions and Answers in the English Courtroom (1640–1760)
judges, suggesting that they were aware of the possible challenge implications of the questions they asked their judges. Indeed, Mordant began by ‘humbly crav[ing]’ that the Act under which he was being tried ‘may be read’. However, when his request was denied, he made a second – and third – plea to the judge that did not exhibit the same level of deference. Indeed, the third ‘plea’ appeared to imply that the judge was taking away the defendant’s liberty:118 Mr. Mord. My Lord, shall I not know by what Law I am tryed, nor by what Act, nor by what Commission? . . . My Lord, Will you take away that liberty that we shall not know by what Commission we are tryed, and who are our Judges? I desire I may not be made the first president. [Trial of John Mordant, 1658]
It is worth noting that Mordant did not have the necessary power to secure his goal (i.e. the identification of the Law/Act/Commission under which he was being tried), even when resorting to ‘conducive’ questions. Indeed, the Lord President ‘answered’ the second ‘plea’, a negative polar interrogative, with a ‘supply’ (i.e. he supplied information that had not been requested by Mordant): ‘You seem to be a young Gentleman; I wish rather you would plead Not guilty, or make an ingenuous Confession.’ This confirms my earlier point about conducivity, namely, conducive questions – even grammatically marked conducive questions such as negative polars and negative wh-interrogatives – do not always receive their designated answers (5.4.2), and suggests, in turn, that the coercive potential of any question-type needs to be pragmatically determined (Archer 2002; Piazza 2002). As we might expect, the defendants addressed the majority of their ‘conducive’ questions to the witnesses (see Table 28 above). Given their ‘right’ to ask questions of witnesses, one might expect defendants to possess the necessary power to achieve their goal in such circumstances. But, as the following extract from the Trial of Francis Francia (1716) reveals, this was not always the case, especially when the witness was of a higher status than the defendant: [Context: Lord Townshend was asked by Sir Jekyll to state what he knew ‘in relation to the Prisoner . . . as to the issuing out the Warrant against him, and what happen’d afterwards.’ Townshend stated that he had received ‘Information that there was a Treasonable Correspondence carry’d on between the late Duke of Ormond, Duke D’Aumont, Coulange and Mr. Harvey, in which the Prisoner was concern’d, and was the Channel in which the Correspondence was convey’d; and that the Pretence of it was a Law-Suit, but that the Design of it was in Favour of the Pretender’. Consequently, Townshend seized
Chapter 9. Defendants’ strategies (1640–1760)
Francia’s letters, and examined Francia on two occasions regarding their contents. Jekyll’s next question to Lord Townshend sought to establish whether ‘all the Letters that were brought by Mr. Walpole, were laid upon the Table at the time of the Prisoner’s Examination.’ Lord Townshend confirmed that they had been, at which point the defence counsel took over the questioning . . . ] Mr. Ward.
I desire to ask your Lordship whether you heard that Declaration read over to him? Ld. Townshend. I dare say I did. Mr. Ward. Did he not endeavour to excuse himself from signing it, till he had read it himself? Ld. Townshend. I don’t remember that, I don’t know that he made any Difficulty of signing it; but I am sure it could not be because he was refus’d to read it. Prisoner. Was not there any Reluctancy in me to sign it? Ld. Townshend. What do you mean? Have not I answer’d that already? Prisoner. Did not you offer me some Money to sign it?
Notice that Francia’s two negative polars are preceded by a negative polar from the defence lawyer, Mr. Ward. Ward’s negative polar assumed – and asked Lord Townshend to confirm – that Francia did not want to sign the written account of his examinations until he had read them. Significantly, the Lord Townshend’s ‘answer’ referred back to an accusation that Francia’s defence counsel had made to Buckley, i.e. that Francia had not been permitted to read the account (see pp. 254–256 for a discussion of this interaction). Presumably, Lord Townshend re-introduced this evidence to emphasise his belief that Francia was neither ‘refus’d to read’ the written account nor reluctant to sign it. The defendant’s first negative polar then picked up on Townshend’s response, and indicated to the jury that there was ‘Reluctancy’ on his part that he believed Townshend could confirm. Although Townshend’s ‘response-initiation’ was presumably meant to communicate his annoyance at being asked such questions by the defendant, Francia continued. Indeed, his second negative polar contained an accusation, namely, that Townshend had attempted to bribe Francia into signing his examination/confession. Townshend did not answer the accusation directly. Instead, he utilised an ‘imply’ to intimate that the accusation was too scandalous to be taken seriously: ‘I hope you can’t say such a thing of so much Infamy’. He then turned to address a 177-word utterance to the whole court which suggested that Francia had ‘begg’d [him] so hard’ that he felt compelled to give ‘him three, four, or five Guineas . . . in Charity’ (see p. 258). Francia was not satisfied, and gave the Lord Townshend a challenge:
Questions and Answers in the English Courtroom (1640–1760)
Prisoner.
I desire to ask you whether you ever bestow’d on any body else the like Charity? Pray my Lord, name the Man under your Examination, you ever gave five Guineas to before? (At which there being a Laugh round the Court.) you did not answer me. Lord Ch. Baron. Propose your Question to the Court? Prisoner. I desire to know who he ever gave five Guineas to besides me? L. Ch. Baron. My Lord says it was out of Charity.
As the above extract reveals, the ‘challenge’ provoked an instruction from the judge. Yet, when Francia did as he had been instructed (proposed his request to the Court), it was the judge rather than the witness who responded. Francia continued to ask questions, but found that he had insufficient power to compel the desired response from Lord Townshend. As the witness’s behaviour (turning to address the Court when he was not happy with the way his examination was proceeding) was highly unusual in the SPC data, I will be examining his strategy in more detail in Chapter 10 (see, especially, 10.4.2). Captain Ambrose utilised the most negative polar interrogatives of all the defendants (i.e. 19), all of which he addressed to witnesses. As the following extract reveals, he also utilised long questioning sequences (in contrast, the other defendants – Christopher Layer apart (see pp. 236–238 below) – tended to ask their questions of witnesses intermittently): Then the Prisoner asked. Q. In the Evening, when you wore, did not you engage the five Spanish Ships a-stern, and how was it possible, if once they got a-head of the Rupert, for the Rupert to wear and engage them in passing? A. The Rupert had bore away, and was firing at those Ships upon the Admiral’s wearing; it was then that I observed the Rupert. Q. If the five Ships once past me, how could I go under the Stern of the Admiral and all the other Ships, and engage those five Ships in passing? A. They were not a-breast of you when you fired at them. Q. You say that I was engaged with the five Ships, that I was half a Mile from you, and that I was out of point-blank, then how could I shoot up to you in the Wearing, and engage the five Ships in passing? A. You did not shoot up to us, we came down to you. [text omitted] Q. As the Rupert was between you and the Enemy, how could you distinguish whether I was near enough to do Execution?
Chapter 9. Defendants’ strategies (1640–1760)
A. I could judge of the Distance as it appeared to me, and by our Shot falling short by the Distance you were from us, and the Distance we were from the Enemy; I think we in the Essex were two Miles from them, and you half a Mile nearer than we. Q. Then I was a Mile and a half off? A. Yes. Q. From the Situation you lay to windward, could you judge whether the Rupert was in a Line with the Admiral? A. Yes, because you was so near us, therefore I am sure you was not in a Line. Q. Was you far out of your Station at your first bringing to? A. No. [text omitted] Q. Then how could I have any Ship to engage? A. But we were a great Way from the Enemy when that Shot reached us; I judge the Essex’s Distance from the Hercules was about two Miles, and her Weather Guns would carry a Shot that Distance.
It is worth noting that the above extract is part of a sequence involving twentytwo questions, some of which contained multiple interrogatives. It is also worth noting that, after the twentieth question: The Court interrupted, and told the Prisoner, that the asking those Questions took up a great deal of Time, and only seem’d proper Questions to be ask’d his own Witnesses. The Prisoner said, he thought them material; but if the Court thought they were not proper Questions, he would submit. [Trial of Ambrose, 1745]
As the underlined utterances (above) reveal, Ambrose’s strategy when examining witnesses (‘friendly’ and ‘non-friendly’) was to precede many of his ‘questions’ with a short account of what the witness had previously testified (e.g. ‘You say that . . . ’). The questions themselves were also ‘hypothetical’ in nature and/or contained modality elements designed to express improbability (e.g. ‘how was it possible, if once they. . . ’, ‘how could . . . ’). The point of his questions, of course, was to cast doubt upon the witness’s version of events, when that version differed from his own. Perhaps not surprisingly, such questions often procured ‘elaborated’ answers when addressed to ‘non-friendly’ witnesses. That is to say, witnesses provided additional detail to that which had been requested, as a means of emphasising the accuracy of their account. Notice, for example, that the witness’s ‘answer’ to Ambrose’s ‘. . . could you judge whether the Rupert was in a Line with the Admiral?’ question provided a qualifying
Questions and Answers in the English Courtroom (1640–1760)
comment introduced by the words ‘therefore I am sure. . . ’ (my italics). It is worth noting that similar questions asked by the Court received one-word responses (see Chapter 10). As previously explained, Ambrose was only one of two defendants who asked witnesses questions in Period 5 (p. 225). If we compare Ambrose’s use of questions with the other defendant, Christopher Layer, we find that he also preceded several of his questions (i.e. 4 out of 44) with ‘you say . . . ’ comments. Interestingly, one of his defence counsel, Mr. Ketelbey, also used the same strategy (see below): Mr. Ketelbey. I don’t know whether your Lordship will indulge us to ask the Witness a Question or two now. L. Ch. Jus. Propose your Questions, and we will tell you. Mr. Ketelbey. Whether he hath any Offer of Pardon propos’d to him to induce him to give Evidence against the Prisoner at the Bar; which if he hath, we apprehend will invalidate his Evidence Lynch. No, Sir; I have no Promise of Pardon at all: I only do this out of Justice, to make what Reparation I can, and to save the Blood of many People. Mr. Ketelbey. I beg Leave to ask him a few more Questions. [to Lynch] I think you say the first time you were introduced into this Gentleman’s Company, the Prisoner at the Bar was at the Griffin-Tavern in Holborn, and that he then told you he had great Designs in hand; and that there was an Insurrection design’d, and they wanted a Person of Resolution to seize a General: This, you say, was the first Time that ever you saw the Prisoner at the Bar. How came you to have that Share of Confidence in a Man that you never saw before? Lynch. I told you I was in Discourse with Dr. Murphey a great many Days and Weeks before I saw Mr. Laye; I told you how every Day I saw him, and always discours’d about the Insurrection, and how he told me then that he would recommend me to a Man that had the Management of the greatest Part in this Affair; and I ask’d every Day when I should be introduced to him: He told me, the Time was not come yet; but when it was a proper time, he would introduce me. [Trial of Christopher Layer, 1722]
Note that Ketelbey asked the court to ‘indulge’ them before speaking to the witness. However, his deference to the Court seemed strategic. Firstly, it allowed Ketelbey to introduce the idea that the witness had turned king’s evidence for a
Chapter 9. Defendants’ strategies (1640–1760)
reward and, by so doing, suggest to the jury that Lynch’s credibility as a witness was questionable, at the very least.119 Secondly, he did not wait for the judge’s response to his second ‘request’, but began questioning Lynch immediately. Ketelbey went on to ask Lynch a series of questions designed to further undermine Lynch’s character (by suggesting he had been personally involved in a ‘treasonous’ affair). He then altered his approach. Indeed, he asked Lynch a question that seemed rather innocuous: Mr. Ketelbey. Did you look out of the Window and see a Person of your Acquaintance? Lynch. I saw two Gentlemen, but did not know them. Mr. Ketelbey. Did not you look out of the Window, and say, you saw a Gentleman of your Acquaintance? Lynch. I said I saw two Gentlemen that I thought I had seen before. Mr. Ketelbey. Did not you go down to those Gentlemen? Lynch. No; I did not go down to them. Mr. Ketelbey. Did not you go down to them? Lynch. No.
The answer to whether Lynch knew and thus went ‘down to . . . the Gentlemen’ was obviously important, because Layer (= prisoner) pursued both matters with the witness: Prisoner.
Did not you tell me that those Gentlemen were your Acquaintance? I told you, those two Gentlemen I had seen before.
Lynch. [text omitted] Prisoner. Did not you go down Stairs, pretending you went to those Gentlemen? Lynch. No, I did not tell you I went to those Gentlemen. Prisoner. Did you not go down Stairs? Lynch. Yes, I did; and came up again immediately.
Notice that Layer had to amend his question in order to secure confirmation from Lynch that he had, indeed, gone down the stairs (Lynch went on to state that he had left the room on two separate occasions). Hungerford, the second defence lawyer, then pursued a different line of enquiry (whether Layer had shown Lynch a paper), before addressing the judge. Hungerford wanted the judge to direct the prosecution counsel to ‘not go into Overt-Acts committed in any other County, till they make the whole of their Proofs of an Overt-Act in Essex’, because ‘relations of Fact arising in another County’ had no relation
Questions and Answers in the English Courtroom (1640–1760)
to this case. Historians believe that objection-tactics such as this reveal the expanding role of counsel in the EmodE courtroom (see, for example, Landsman 1990: 543–547). However, the judge’s response suggests that such practices were still rare at this time: Ld. Ch. Jus.
Sure never any Thing was like this! It is our Province to give Directions, and we think it not proper to interrupt the King’s Counsel, but that they should proceed in their own Method: You shall be heard as long as you please, when you come to make your Observations.
Moreover, the prosecution counsel seized the opportunity to complain about the prisoner’s behaviour: Mr. Soll. Gen. The Prisoner hath a Right to say any thing that is proper, to the Court and the Jury, in his Defence, but he must say it openly; he is not to talk privately with the Jury; though I am sure they are Gentlemen of so great Worth and Honour, as not to be influenced. Mr. Att. Gen. I dare say the Jury won’t be influenced; but he talks to his Counsel so loud, that the Jury may easily hear every Word he says.
It is worth noting that the judge immediately addressed an ‘instruction’ to Hungerford that suggested that he should have more control over the defendant (‘He must not speak so loud’), before turning to speak to the defendant himself: L. Ch. Jus.
[. . . ] You have a Right to discourse with your Counsel, but you must do it in such a Manner as the Jury may not hear.
Charles’ behaviour in court was also censured by the judge. Indeed, Bradshaw complained that his ‘way of answer [was] to interrogate the Court, which beseems not [a prisoner] in this condition’. However, as the rhetorical questions (below) highlight, the king had a very different reality paradigm to Bradshaw (as explained in Chapter 2, by ‘reality paradigm’ I mean the ‘perspectives of reality’ through which interlocutors operate/filter information about their world[s]; cf. Archer 2002: 20): Here is a Gentleman, Lievt. Col. Cobbet, (ask him) if he did not bring me from the Isle of Wight by force? I do not come here as submitting to the Court; I wil stand as much for the priviledg of the house of Co∼mons, rightly understood, as any man here whatsoever. I see no House of Lords here that may constitute
Chapter 9. Defendants’ strategies (1640–1760)
a Parliament, and (the King too) should have been. Is this the bringing of the King to his Parliament ? Is this the bringing an end to the Treaty in the publike Faith of the world? Let me see a legal Authority warranted by the Word of God, the Scriptures, or warranted by the Constitutions of the Kingdom, and I will answer.
Charles believed in his ‘divine right’ to rule, and that the Parliament was therefore ‘his Parliament’. Moreover, he believed (as he later asserted) that this ‘divine right’ to rule meant that he could ‘plead for the liberties of the people of England more than’ any ‘pretended judges’. He also believed that, if he was ‘suffered to speak’, he could prove that ‘right’. As the interaction between Charles and Bradshaw was largely made up of ‘requests’ and ‘requires’, I will leave my discussion of their strategies until Chapter 11. Suffice it to say, Charles and his accuser were locked into a situation of presuppositional conflict, and, although put under increasing pressure to abandon his own reality paradigm in favour of his accusers, the king refused. As will become clear, the High Court’s response was to silence the king as much as possible as they continued with what, in effect, became a show trial (see Seymour 1987). The king was found guilty, and executed. Poignantly, Charles asked one of his final questions – ‘Will you hear me a word Sir?’ – after his sentence had been passed. However, because a ‘prisoner condemned to death was already dead in law’ (Wedgwood 1964: 164), he was ‘not suffered to speak’: Lord Pres. King. Lord Presid. King.
Sir, you are not to be heard after the sentence No Sir? No Sir, by your favor Sir. Guard, withdraw your Prisoner. I may speak after the sentence – By your favor Sir, I may speak after the sentence ever. By your favor (hold) the sentence Sir – I say Sir I do – I am not suffered for to speak, except what Justice other people will have.
Like many defendants, Charles discovered that it was an exceptional prisoner indeed who asked probing questions or who spoke effectively on his/her own behalf – and managed to secure his/her freedom. Indeed, even ‘divinely sanctioned power’ could not overcome the power imbalance of the EmodE courtroom (see Chapter 11).
Questions and Answers in the English Courtroom (1640–1760)
. Defendants’ ‘answering’ strategies In the introduction, I stated that my interest was not merely in the strategic use that participants made of questions in the historical courtroom, but also the ‘answers’ that those questions received. I also suggested that we cannot really understand the use of the former without studying the latter. In this section, I briefly examine the defendants’ use of ‘answers’ when interacting with their most active addressee in Periods 3 and 4, the judges (please note that defendants did not address any ‘answers’ to judges in Period 5). However, as a mere 11% of the defendants’ total utterances with the judges (that is 25 out of 227) were directly elicited by a question that the judges had previously posed to them (i.e. functioned as ‘answers’), I will be concentrating on providing examples of the types of ‘answers’ that they utilised, and the various functions that they appeared to serve. In other words, I will be using my findings to structure my explanatory discussion of the usages of ‘answers’ in the EmodE courtroom, and to offer hypotheses that are open to future testing and revision. Table 29 (below), then, reveals the types of ‘answers’ that defendants utilised in Periods 3 and 4. Notice that the ‘imply’ was the defendants’ favoured ‘answer’ in Period 3, four of which occurred in the ‘response’ position (the fifth was part of a ‘response-initiation’; see p. 225, above). As Table 29 reveals, ‘implies’ do not provide express ‘yes’, ‘no’ or a value for a missing variable explicitly, but the latter can be inferred from what is said. By way of illustration, Coleman stated that Oates, the main prosecution witness against him, ‘did seem to say [at his previous examination], he never saw me before in his life’. The observation occasioned the following question from the judge: L. Ch. Just. Was he asked whether he was acquainted with you? (for those words are to the same purpose). [Trial of Edward Coleman, 1678]
Rather than providing an explicit ‘yes’ or ‘no’, Coleman gave an ‘answer’ that intimated that, as Oates had said that he did not know him, he could not have been acquainted with him: Pris. I cannot answer directly, I do not say he was asked if he was acquainted with me, but I say this, that he did declare he did not know me. [‘imply’]
It is worth noting that only three of the thirteen ‘answers’ utilised by defendants in Period 3 supplied an explicit variable. The first, ‘yes sir’, was used by Charles
Chapter 9. Defendants’ strategies (1640–1760)
Table 29. Function of answers addressed by defendants to judges (1640–1679)120 Function
Definition of . . .
Pd 3
Pd 4
Total
Imply
S does not provide/express ‘yes’, ’no’, or value for a missing variable, but answers in such a way that one can be inferred S establishes that what has been proposed (something about Y) is true S establishes that what has been proposed (something about Y) is false S establishes their inability to provide requested information/answer S provides information which is not the requested information S provides a positive polarity decision (explicitly)
5 [1]
2 [1]
7 [2]
1 [–] Do not confirm/ 0 oppose [–] Disclaim 1 [–] Supply 1 [–] Validate 0 [–] Invalidate S provides a negative polarity decision (explicitly) 1 [1] Identify S provides requested information (explicitly) 2 [1] Refuse to answer S does not give a (verbal) answer, even though one – is expected Evade S does not provide/express ‘yes’, ‘no’, or value for 1 missing variable, and does not answer in such a [–] way that one can be inferred Challenge S conveys why/that Y (proposed by A/others) 1 cannot be right [–] Total 13 [3]
0 [–] 0 [–] 0 [–] 1 [–] 2 [1] 3 [1] 4 [1] –
1 [–] 0 [–] 1 [–] 2 [–] 2 [1] 4 [2] 6 [2] –
0 [–]
1 [–]
0 [–] 12 [4]
1 [–] 25 [7]
Confirm
to ‘confirm’ that he had finished speaking. The second, an ‘identify’, provided information that had been previously requested (e.g. ‘Then my Lord I plead not guilty’). Importantly, however, it occurred after the judge had made it clear that the defendant, one Henry Martin, would not be given counsel, as he had requested. The third, ‘No, my Lord’, provided a negative polarity decision for the following question: ‘Sir H. S. have you any thing else to say’. If we compare the defendants’ choice of ‘answers’ in Period 4 we find that their favoured ‘answers’ when interacting with the judges were the ‘identify’ and the ‘invalidate’, both of which provide an explicit variable (see Table 29 above). Notice, also, that Period 4 defendants did not utilise any ‘challenges’, ‘evades’ or ‘disclaims’. This suggests Period 4 defendants were displaying their knowledge in a way that Walker (1987: 59–60) would describe as ‘appropriate’ for the courtroom. In other words, their ‘answers’ were ‘as informative
Questions and Answers in the English Courtroom (1640–1760)
(and only so) as [was] necessary, spoken in truth, relevant to the immediately preceding offering, clear, brief and orderly’ (cf. Grice 1975). Walker’s (1987) comments about ‘answers’ in the modern courtroom reflect the assumption that a response to a question should directly answer the question, and only that question, and thus that all relevant information should be made explicit, no matter how pragmatically obvious (Tiersma 2000: 168). Such an assumption would have proved problematical for EmodE defendants. Indeed, they often found it necessary to breach the pragmatic norms set up by the courtroom activity type, not least because they were assumed to be guilty from the outset (cf. Section 3.4.2). Consequently, they sometimes produced ‘answers’ which were not ‘appropriate’, in Walker’s (1987) sense (cf. Sections 2.3.2–2.3.3). The most common strategy utilised by the defendants in the SPC was to adopt a less-than-direct approach as a means of thwarting the examiner’s line of argument. Thus, Cellier answered a relatively straight-forward question ‘Have you any more?’ with a ‘supply’: ‘My Lord, I can prove him perjured’. Providing information that was not the requested information was not without risk, but, on this occasion, the Lord Chief Justice began to pursue a new line of enquiry, ‘Have you any Records to shew he was perjured? Is he convinced? . . . Can you shew he forged any Deeds. . . ’ (see pp. 195–196 for further commentary). Two other strategies utilised by defendants in the SPC were expressing one’s inability to provide the requested information/action and conveying why/that Y (proposed by S/others) could not be right (see Appendix 2). However, it is worth noting that the defendants communicated these strategies through their ‘requests’ and ‘reports’ more than they did through their ‘answers’. Indeed, there are only two examples of ‘answers’ communicating the above. The first, a ‘disclaim’, was utilised by Coleman when asked whether he had ‘spoken all that was true’ (‘I know no more, than what I declared to the Two Houses). Significantly, the judge interpreted Coleman’s inability to provide the requested information/answer as unwillingness (cf. Archer 2002; see also 10.2.1). Indeed, he made his inability to believe Coleman explicit in his very next turn: L. C. Just Mr. Coleman, I’ll tell you when you will be apt to gain credit in this matter: You say, that you told all things that you knew, the Truth, and the whole Truth. Can Mankind be persuaded, that you, that had this Negotation in 74. And 75. Left off just then, at that time vvhen your Letters vvere found according to their Dates? Do you believe, there vvas no Negotation after 75. because vve have not
Chapter 9. Defendants’ strategies (1640–1760)
found them? Have you spoke one vvord to that? Have you confessed, or produced those Papers and Weekly Intelligence? When you answer that, you may have credit; vvithout that, it is impossible: For I cannot give credit to one vvord you say, unless you give an account of the subsequent Negotiation. [Trial of Edward Coleman, 1678]
The second answer, a ‘challenge’, was utilised by Connor Lord Macguire. Macguire wanted to know ‘under what seal’ the Court was operating, but his request for the information was met with the following: ‘What seal do you mean, I sit here by vertue of the Olde by Order of Parliament’. The remark immediately following the judge’s what-interrogative – ‘I sit here . . . ’ – suggests that the what-interrogative was not really information-seeking. Rather, its function was one of emphasis. In other words, the judge was making it clear that his actions were so legitimate, they should have been beyond questioning. But Macguire replied by stating ‘that the Ordinance of Parliament for the New seal, makes all done by the old seal to be voide’, and thereby challenged that assumption of legitimacy (that is, he ‘challenged’ the underlying presupposition[s] inherent within the question).
. Insights gained EmodE defendants adopted a role that is regarded as a ‘non-transferable marker of power’ in the modern courtroom, that of initiator (cf. Walker 1987: 62). The bulk of the defendants’ initiations had the force of ‘questions’ and ‘requests’. The questions were mainly addressed to the witnesses, and exhibited similar functions as the primary examiners’ questions, that is to say, they sought information, confirmation and/or clarification of prior evidence. They also sought to bring prior evidence into dispute and undermine witnesses. The bulk of the defendants’ requests were addressed to the judges, and sought some specific action and/or an opportunity to speak (see Chapter 11). Although defendants tended to secure their interactional goals (i.e. witnesses, in the main, responded to their ‘questions’), they often struggled/failed to secure their discoursal and/or social goals. In other words, they did not procure the relevant information/clarification/confirmation/action/permission etc. that might ‘prove’ their innocence. Two factors account for this. Firstly, they had the ‘legitimate’ right to request but not the ‘coercive power’ to shape responses in the case of the witnesses, and to compel responses in the case of
Questions and Answers in the English Courtroom (1640–1760)
the judges (i.e. they lacked the ‘right to control negative outcomes by virtue of their role’; cf. French & Raven 1959; Spencer-Oatey 1992; Thomas 1986). Secondly, most defendants did not share the primary examiners’ specialist knowledge/expertise. The second factor, in particular, may explain why most of the Period 5 defendants were happy to leave their defence to the lawyers, when present. Defendants were also hampered by the Courts’ ‘guilt’ bias. Indeed, the SPC data suggests that it could affect both the defendants’ choice of answer, and the examiners’ interpretation of the latter. For example, judges/prosecution lawyers would often assume that defendants who expressed their inability to provide the requested information/action (because of their innocence) were really unwilling to do so (because it may establish their guilt; cf. Archer 2002). In Chapter 10 (following), I examine the witnesses’ answers to determine the extent to which they were similar to/different from those utilised by the defendants.
Chapter 10
Witnesses’ ‘answering’ strategies (1640–1760)
. The witnesses’ role as ‘answerer’ In the latter part of Chapter 9, I briefly examined the ‘answers’ that defendants used when interacting with their main addressees. In this chapter, I examine the witnesses’ use of ‘answers’ to determine the extent to which witnesses utilised ‘answers’ in ways that were similar to or different from the defendants. As with the defendants’ ‘answers’, I will be examining the extent to which the witnesses’ answers: 1. Supply the requested information/agreement/disagreement. 2. Are the type of response that their corresponding question-type typically expects, especially given the fact that logically well-formed replies, or, alternatively, responses that conform with expectations, can be one of many pragmatically appropriate answers (Quirk et al. 1985: 806). I will also assess the extent to which the choice of answer seems to have been dependent on the addressee. In addition, I will be looking for evidence that suggests that the witnesses’ role was undergoing change. I begin, then, with an overview of the witnesses’ interaction in each sub-period (see 10.2 following), before moving on to an examination of their specific interaction with the judges (10.3), lawyers (10.4–10.4.2), Courts and defendants (10.5).
. The strategies of the witnesses As established in Section 6.2.1, witnesses were the most active participants in the SPC, with 36.6% of the utterances (that is 1,554 out of 4,248). The bulk of those utterances (i.e. 92.5% or 1,437 out of 1,554) were ‘responses’, i.e. they provided information that had been directly elicited by another participant.121 A large proportion of these ‘responses’, in turn, (i.e. 95.6% or 1,374 out of
Questions and Answers in the English Courtroom (1640–1760)
Table 30. Witnesses’ ‘answers’ in the SPC, and the participants to whom they were addressed Addressee Imply Confirm Do not Disclaim Supply Valid. Invalid. Identify Evade Chall. Total confirm Court Pros. counsel Judge Defence counsel Defendant Recorder Others Total
41 56
8 8
1 5
36 17
6 6
84 48
77 17
108 145
0 5
0 2
361 309
47 38
18 8
4 10
13 20
15 5
19 30
20 36
99 69
6 4
0 4
241 224
39 6 – 227
9 11 1 63
8 2 – 30
17 1 – 104
3 1 – 36
9 5 4 199
16 8 4 178
42 37 8 508
3 1 – 19
4 0 – 10
150 72 17 1374
1,437) functioned as ‘answers’, i.e. they provided information that had been directly elicited via questions. Table 30 provides a breakdown of the types of answers that witnesses utilised when responding to their main questioners in the SPC as a whole, i.e. the judicial examiners, the lawyers and the defendants (see 4.4.3, for a summary of the specific functions of the various ‘answer’ types). As Table 30 (above) reveals, the witnesses addressed more of their ‘answers’ to the Courts and the prosecution counsels than they did to the judges, in spite of the fact that the latter were the witnesses’ favoured addressees in Periods 3 and 4 (see 6.2.1 and 10.3 following). Two factors account for this. Firstly, the high number of questions addressed by the Court to the witnesses in the Court-martial of Ambrose (see 6.3). Secondly, the emergence of an ‘adversarial’ contest between the prosecution lawyers and the defence lawyers as the EmodE period progressed, which led, in turn, to a tendency for the former, especially, to be more closely involved in the questioning (and re-questioning) of witnesses. Indeed, as the EmodE period progressed, it was the lawyers rather than the justices of the peace who decided which witnesses would appear in court (cf. Landsman 1990). In the following sections, I examine the witnesses’ interaction with their most favoured participants (the Courts, the lawyers, the judges and the defendants). However, as the bulk of the witnesses’ interaction with the Courts and defendants occurred in the final sub-period of the SPC (1720–1760), I begin with an examination of the witnesses’ interaction with the judges in Periods 3 and 4 (1640–1719).
Chapter 10. Witnesses’ ‘answering’ strategies (1640–1760)
. Witnesses’ interaction with the judges (1640–1719) 97% of the witnesses’ responses to the judges in Period 3 (that is, 97 out of 100) functioned as ‘answers’. In Period 4, the figure was slightly less in percentage terms (i.e. 84.3% or 124 out of 147). Table 31 (below) provides a breakdown of their specific function (please note, the bracketed number highlights those ‘answers’ that were elaborated in some way, that is to say, they provided additional/supporting information than was explicitly requested). Table 31 also provides a definition for each answer-type. Notice that the ‘identify’ was the witnesses’ favoured ‘answer’ when interacting with the judges in both sub-periods. The popularity of the ‘identify’ is not unduly surprising, when one considers that (i) identify-type answers are those in which S explicitly provides the requested information and, as such, tend to ‘answer’ wh-interrogatives like ‘How long have you been acquainted with Mrs. Cellier?’ (the answer to the latter was ‘Ten or a dozen Years’), and (ii) judges asked witnesses more wh-interrogatives than any other questionTable 31. Function of answers addressed by witnesses to judges (1680–1719) Function
Definition of . . .
Pd 3
Pd 4
Total
Imply
S does not provide/express ‘yes’, ’no’, or a value for the missing variable, but answers in such a way that one can be inferred S establishes that what has been proposed (something about Y) is true S establishes that what has been proposed (something about Y) is false S establishes their inability to provide requested information /answer S provides information which is not the requested information S provides a positive polarity decision (explicitly)
17 [7]
26 [13]
43 [20]
11 [3] 3 [3] 9 [5] 9 [0] 7 [6] 17 [13] 37 [15] 5 [–]
16 [7] 4 [4] 13 [5] 15 [6] 15 [8] 20 [13] 89 [41] 5 [–]
124 [58]
221 [104]
Confirm Do not confirm or oppose Disclaim Supply Validate Invalidate Identify Evade
Total
5 [4] 1 [1] 4 [–] 6 [6] 8 [2] S provides a negative polarity decision (explicitly) 3 [–] S provides requested information (explicitly) 52 [26] S does not provide/express ‘yes’, ‘no’, or a value for 0 the missing variable, and does not answer in such [–] a way that one can be inferred 97 [46]
Questions and Answers in the English Courtroom (1640–1760)
type (i.e. 60 out of a possible 114 in Period 3, and 57 out of a possible 134 in Period 4; see 6.2.1).122 What is surprising, however, is that nearly half of the ‘identifies’ (i.e. 41 out of 89) were ‘elaborated’ in some way, i.e. provided additional/supporting information than explicitly requested by the judges, even though a substantial number of the judges’ wh-interrogatives requested quite specific information, in context (see 6.2.1). The high number of elaborated ‘identifies’ suggests that witnesses were generally cooperative, in both a Gricean and social sense. In other words, they not only used language in such a way that their interlocutors could understand what they were saying and implying, but seemed to want to tell their interlocutors everything they wanted to know, and more besides (cf. Thomas 1986: 47; Archer 2002: 10; Section 9.5; see also 10.3 following). Yet, it is worth noting that the ‘identify’ was more popular with witnesses in Period 3 (1640–1679) than in Period 4 (1680–1719). Indeed, it accounted for more than half (i.e. 52 out of 97 or 53.6%) of the witnesses’ answers in the former, and only one third (i.e. 29.3% as opposed to 53.6%) of the witnesses’ answers in the latter. One possible reason for this difference may be due to the fact that Period 4 judges addressed nearly as many polar interrogatives to witnesses as wh-interrogatives (i.e. 54 as opposed to 57). Polar interrogatives, in the main, procured ‘(in)validate’-type answers (e.g. ‘No, my Lord’; ‘Yes, my Lord.’) or ‘imply’-type answers, that is, answers where a polarity decision was not expressed explicitly, but one could be inferred (e.g. ‘Do you know Dangerfield? . . . I remember one Thomas Dangerfield. I saw him burnt in the hand at the Old-Baily’). A second possible reason may be that the presence of the prosecution and defence counsels meant that the Period 4 judges were asking witnesses questions that were less about procuring information and more about clarifying information previously given by the witnesses to the lawyers (cf. Section 7.4). A third possible reason may be that Period 4 witnesses were slightly less forthcoming than their Period 3 equivalents. Notice, for example, that in addition to answers that (like ‘identifies’) explicitly provide some requested information, be it a polarity decision (e.g. ‘validates’ and ‘invalidates’) or acknowledgement that what has been proposed is true/false (e.g. ‘confirms’ and ‘do not confirms’), Period 4 witnesses also utilised a small number of ‘evades’ (i.e. five) and slightly more ‘disclaims’ (i.e. nine as opposed to four). As Table 31 highlights, in ‘evade’-type answers, S does not provide/express ‘yes’, ‘no’, or a value for a missing variable, and does not answer in such a way that one can be inferred. For example, in the Trial of Francis Francia (1716), Mr. Justice Pratt asked Rafter ‘If it is not his Writing, whose do you take it to be?’, and Rafter replied ‘I don’t take it to be his’. By so doing, Rafter reiter-
Chapter 10. Witnesses’ ‘answering’ strategies (1640–1760)
ated what the judges’ question assumed (that is, provided ‘given’ information) rather than supplying the requested (‘new’) information. Negatively-framed utterances tend to be ‘less informative than their positive counterparts’, and, as such, are ‘marked’ (cf. Leech 1983: 100). Indeed, Justice Pratt chose to repeat his question, but appended a second as a means of limiting Rafter’s response options: ‘Whose do you take it to be. Are you acquainted with his son’s hand?’. Yet, Rafter’s response to that question – a ‘disclaim’ – was equally uninformative: ‘I don’t know whether it is his Son’s or not’. Disclaims are thus similar to evades in the sense that they can be seen as less ‘cooperative’ than those answer-types that explicitly provide some requested information and/or confirmation. This is especially the case if the hearer decides that S’s inability to provide the requested information/answer is not inability but unwillingness (cf. Archer 2002; see also Section 9.5). Surprisingly, judges did not appear to interpret them in this way, even when witnesses utilised ‘disclaims’ several times. Mr. Gadbury, for example, utilised ‘disclaims’ on three occasions in the Trial of Elizabeth Cellier (1680). On the first occasion he was asked ‘What [he] kn[e]w concerning this plot?’, to which he responded, ‘I know nothing of it, neither one way, nor another’. On the second, he was asked whether he had specifically heard Cellier say: . . . that she had heard Dangerfield say there was a Nonconformists Plot, and that he was to have a Commission among them? and did she say, that she had heard him say, that he hoped under the colour of that, the Popish Plot would go on? or did she say it of her own accord, that she hoped that would carry on the Popish Plot?
He responded by stating that he could not ‘remember particulars’. On the third, Gadbury had previously stated that he thought ‘she did say she heard there were some [Priests or Jesuits] coming over’. However, when asked ‘What to do?’, he responded ‘God knows what’. On the fourth, he was asked ‘What Discourse’ he had had ‘with Mrs. Cellier passing through Westminster Abby?’, to which he responded: My Lord, my memory hath been exceedingly bruised; but I remember, my Lord, as I was going through the Abby in a rainy afternoon, she said, this Abby was formerly filled with Benedictine Monks, or something to that purpose, and, saith she, what if it should be so again?
The only witness to utilise more than one ‘disclaim’ in Period 3 was the infamous Titus Oates (Trial of Edward Coleman, 1678). Two of Oates’ ‘disclaims’ are relatively straightforward. For example, when asked ‘Did you know him
Questions and Answers in the English Courtroom (1640–1760)
[= Coleman] by some French name? What said you?’, Oates replied ‘I could say little to this’. Oates’s third ‘disclaim’ is much more interesting, however, for (like Gadbury’s final ‘disclaim’) it contained an additional answering function; that of a ‘supply’ (as highlighted in Table 31, ‘supplies’ provide information which is not the requested information). Oates had claimed that Coleman had made copies of some important instructions, but the Lord Chief Justice could not understand why Coleman would make copies of instructions that detailed how ‘ten thousand pound’ would be ‘advanced, if Doctor Wakeman would Poison the King’. According to Oates, ‘the reason [was] plain’ – to ‘incourage’ sympathisers ‘a gathering a Contribution about the Kingdom, and [by] these Instructions’ ensure that ‘some Thousands of pounds were gathered in the Kingdom of England’. The propositional content of the Lord Chief Justice’s next wh-interrogative, ‘To whom was Mr. Coleman to send them?’, suggests that he was satisfied with Oates’ explanation. Oates’s response to that interrogative was as follows: Mr. Oates. I know not any of the Persons, but Mr. Coleman did say he had sent his Suffrages (which was a Canting word for Instructions) to the Principal Gentry of the Catholicks of the Kingdom of England. [Trial of Edward Coleman, 1678]
Oates appeared to delight in providing specific details (whether requested or not). He was also the only witness to ‘answer’ a question posed by a defendant in Period 3 (which provides evidence, in turn, that defendants were not really cross-examining the witnesses in that sub-period). Given Oates’s role in instigating the Popish plot, it is easy to surmise that Oates’s willingness to ‘tell all’ was because his goal was to incriminate rather than to tell the truth. However, it is worth remembering that the court did not have the benefit of hindsight as we do today, and Oates’s fictitious Popish plot was only beginning to unravel at this point in history (but see 11.2 and 11.3). Very few witnesses gave vague responses to their judges in Periods 3 and 4. One such witness was John Stapely (the Trial of Slingsby, Hewet and Mordant, 1658). For example, when asked whether Mordant had told him ‘it was the King that wrote to him, and therefore it was just to assist him’, he replied ‘I think I heard him say so, I cannot take my Oath of it’. Similarly, when asked whether Mordant told him ‘what considerable persons were concerned’, Stapley responded by stating: ‘I have heard him speak of some persons that were ingaged in this design .. Sir Fran. Vincent, . . . and one Brown’.123 The judge appeared to accept Stapley’s evidence, in spite of his obvious attempts not to
Chapter 10. Witnesses’ ‘answering’ strategies (1640–1760)
say more than was absolutely necessary. The same cannot be said for the judge and Dangerfield, however (the Trial of Elizabeth Cellier, 1680). As previously highlighted, Dangerfield was the main prosecution witness against Elizabeth Cellier, but she managed to convince the judges that he was an ‘unfit witness’ and the case against her was dropped (see pp. 195–196). Dangerfield was asked only three questions by the judge (one of which was rhetorical). But his answers to those questions help us to understand why the latter believed Cellier. For example, after having been informed by Mrs. Cellier that Dangerfield had ‘been Indicted for Burglary’, the judge gave the witness an opportunity to confirm or refute the claim (‘VVas you Indicted for Burglary?’). However, Dangerfield preferred to challenge Cellier and her supporters to prove their allegations rather than answer the judge’s question directly (‘I will take it at their Proof ’). The Lord Chief Justice’s second question to Dangerfield was also designed to provide him with an opportunity to defend himself: L. C. J. Have you any more to say? Are there any Waltham Men here? Mr. Dan. My Lord, this is enough to discourage a man from ever entring into an honest Principle.
Once again, Dangerfield did not do so. Instead, he intimated that the Lord Chief Justice’s treatment of him was such that it might discourage him from becoming honest. That ‘answer’ occasioned the Lord Chief Justice’s rhetorical question, the function of which was to ‘express’ indignation (cf. Section 2.2.1.2): L. C. J.
What? Do you with all the mischief that Hell hath in you think to brave it in a Court of Justice? I wonder at your Impudence, that you dare look a Court of Justice in the Face, after having been made appear so notorious a Villain.
Dangerfield aside, witnesses were treated more favourably than the defendants in the Period 4 trial texts. And, unlike Dangerfield, several were able to protect themselves against allegations/insinuations made by the defendants. For example, Captain Harris informed Rookwood ‘Mr. Rookwood, I believe you are very sensible I do not accuse you of any thing that is not true’ when Rookwood stated that ‘It’s a very strange thing I should give you a List with a Man’s Name that I don’t know’ (see pp. 216–217). Significantly, witnesses were also prepared to challenge evidence given by fellow witnesses. For example, in the Giles Trial (1680), William Richmond and Elizabeth Crook queried one another’s evidence on several occa-
Questions and Answers in the English Courtroom (1640–1760)
sions, even though they were both witnesses for the defence! (see underlined sections below): [Context: Elizabeth Crook had been asked to state the time that she made Giles’s bed and the time that he retired to his room. She was then asked to confirm evidence previously offered by Richmond] Record. Crook. Rich. Crook. Rich.
Record. Rich. Record.
Did Richmond come in when you were making the Bed? He was not there that I knew of. Was not I in the Chamber when you made the Bed? [neg. polar] No, I don’t remember you. [‘invalidate: elaboration’] My Lord, when this Maid went to make the Bed, I went into the Room after her, and had some discourse with her, we lean’d together upon the Window, and I told her I was in Love with her, I told her, if she liked of it, I would Marry her the next Morning: I did it to make merry, for indeed I am a Married Man. What time a Night was it? About Twelve a Clock. If you forget your other Sweet-Hearts, can you remember this? Do you remember now he was there? I remember he was there.
Crook. [text omitted] Rich. And she told me that he would lie by himself though the house was very full. Record. Do you remember any such Discourse? Crook. I do remember that Mr. Richmond did come in. Kings Coun. What time of Night was it that he was making love to you? Crook, I think about Ten a Clock. Kings Coun. Time passed merrily away with you then. Rich. It was Twelve a Clock. Crook, Why do you say so? Our house was all quiet presently after Eleven [polar] Rich. Why will you say so? Were not we Singing and Roaring together? [polar + negative polar] Record. Come don’t be angry, you were not angry when you were making love together? Rich. I am not angry indeed Sir.
Notice that Richmond’s initial negative polar interrogative presupposed – and sought confirmation from Crook – that he was in the Chamber when she made
Chapter 10. Witnesses’ ‘answering’ strategies (1640–1760)
the bed. But Crook opposed Richmond’s claim, adding information, which, although ambiguous, suggests that she did not remember him because he was not there (cf. another witnesses’ use of a similar ‘don’t remember’ comment, 10.4 following). Richmond then communicated an incident to the judge that occurred in the Chamber, possibly in an attempt to ‘prove’ to the latter (and the jury) that he was there. After clarifying the time with Richmond, the recorder asked Crook whether she now remembered that he was there, to which Crook responded affirmatively. A little later in the examination, Crook was asked to state ‘What Time of night’ they had been together in the Chamber. Her answer was that she thought ‘about Ten a clock’. Richmond then proposed a different time (notice that he was not asked to volunteer the information, but did so of his own volition). The comment prompted a question from Crook, but its purpose was to allow her to contradict Richmond by pointing out that the ‘House . . . was quiet presently after Eleven’. Richmond responded to Crook’s ‘query’ with a ‘query’ of his own (‘queries’ call into question or request clarification of something said by the other). The question contained multiple interrogatives, the first of which was a near repeat of Crook’s question, and the second of which presupposed a positive response (i.e. that they were ‘Singing and Roaring’ together at ‘Twelve a Clock’). It is worth noting that Recorder Jeffrey’s response to Richmond (i.e. ‘Come don’t be angry . . . ’) suggests that he, at least, found their ‘disagreement’ amusing.124
. Witnesses’ interaction with the lawyers (1680–1719) Table 32 (below) provides a breakdown of the ‘answers’ that witnesses gave in response to the questions posed to them by the prosecution lawyers, and Table 33 (following), a breakdown of the ‘answers’ that witnesses gave to the defence lawyers. Notice that the witnesses’ favoured ‘answer’ in both cases was the same, i.e. the ‘identify’. That said, there is a difference in usage when viewed in the context of all their other ‘answer’ types. Indeed, the ‘identify’ accounted for nearly half (i.e. 45.4% or 132 out of 291) of their answers to the prosecution lawyers, but only accounted for one third (i.e. 30.5% or 69 out of 226) of their answers to the defence lawyers. The witnesses’ second most popular ‘answer’ when interacting with the prosecution and defence lawyers was also the same, i.e. the ‘imply’ (as previously explained, ‘implies’ do not provide/express ‘yes’, ‘no’, or value for a missing variable explicitly, but one can be inferred from what
Questions and Answers in the English Courtroom (1640–1760)
Table 32. Function of answers addressed by witnesses to prosecution lawyers (1680– 1719) Function Imply Confirm Do not confirm/oppose Disclaim Supply Validate Invalidate Identify Evade Challenge Problem Total
Pd 4 13 3] 1 10 2 18 7 54 3 1 0 112
Pd 5 [6] [1] [1] [7] [–] [11] [5] [26] [1] [1] [–] [59]
39 5 4 7 4 28 9 78 2 1 2 179
Total [30] [2] [3] [4] [–] [27] [7] [40] [–] [1] [1] [115]
52 8 5 17 6 46 16 132 5 2 2 291
[36] [3] [4] [11] [–] [38] [12] [66] [1] [2] [1] [174]
Table 33. Function of answers addressed by witnesses to defence lawyers (1680–1719) Function Imply Confirm Do not confirm/oppose Disclaim Supply Validate Invalidate Identify Evade Challenge Problem Total
Pd 4 24 4 7 16 4 13 17 34 1 1 0 112
Pd 5 [13] [1] [4] [10] [–] [8] [9] [12] [–] [–] [–] [57]
14 4 3 4 1 17 19 35 3 3 2 105
Total [8] [3] [2] [3] [–] [16] [12] [10] [–] [2] [–] [56]
38 8 10 20 5 30 36 69 4 4 2 226
[21] [4] [6] [13] [–] [24] [21] [22] [1] [2] [–] [113]
is said). But their third most popular answer was different, that is to say, ‘validates’, when interacting with the prosecution lawyers, and ‘invalidates’, when interacting with the defence lawyers. A significant proportion of the ‘invalidates’ that witnesses addressed to defence lawyers in the SPC (i.e. twelve, that is to say one third) occurred in the Trial of Francis Francia (1716). A closer examination of that trial reveals that prosecution witnesses, in particular, utilised the ‘invalidates’ to counter the defence lawyers’ attempts to undermine them. Take Mr. Buckley, for example. Buckley, a witness for the prosecution, had been asked (by the prosecution counsel) to give an account of Francia’s examination before Lord Townshend
Chapter 10. Witnesses’ ‘answering’ strategies (1640–1760)
and Mr. Secretary Stanhope, which he had been responsible for taking down. Buckley had informed the court that Francia had refused to swear on the New Testament. Instead, ‘he took another Book out of his Pocket’ to swear on: Mr. Buckley. [. . . ] I ask’d him [Francia] whether this was true: He said it was. Then he sign’d it [the written record of his examination]; and afterwards my Lord Townshend sign’d it. Mr. Cowper. Is the Subscription of his Hand-Writing? Mr. Buckley. It is. [‘validate’] Prisoner. You say I took an Oath? On what Book was it? Mr. Buckley. Indeed I don’t know, I believe it was an Hebrew Book; Mr. Secretary Stanhope look’d upon it. [‘disclaim: elaborate’]
At this point in Buckley’s examination, two of Francia’s defence team (Mr. Denton and Mr. Ward) took over the questioning (I have included an indication of the types of ‘answer’ that Buckley made in response). Mr. Denton. Mr. Buckley. Mr. Denton. Mr. Buckley. Mr. Ward. Mr. Buckley.
Mr. Ward. Mr. Buckley. Mr. Ward. Mr. Buckley. Mr. Ward. Mr. Buckley. Mr. Ward. Mr. Buckley.
Was he examin’d at any time after? Yes. [‘validate’] Was you present then? No. [‘invalidate’] How long were they [a book and some letters belonging to Francia] in your Custody? From the time that Mr. Walpole went abroad, till he came back again, and then I deliver’d them back to him. [‘elaborated identify’] Were they in your Custody when Mr. Jones was under Examination? I can’t tell; but I never did show them to him. [‘disclaim: supply’] Were they not deliver’d out on that Occasion? No, they were not deliver’d out by me. [‘do not confirm: elaborate’] You say you read the Examination to him. Did not he desire to read it himself? I don’t remember it. [?] Was he not refused to read it? No, upon my Soul. [‘invalidate’] [Trial of Francis Francia, 1716]
Notice that Denton’s/Ward’s initial questions were designed to establish whether Francia was permitted to read his own examination/confession. How-
Questions and Answers in the English Courtroom (1640–1760)
ever, by the sixth and seventh question, Ward was assuming that Francia did desire to do so, but was refused the privilege (see underlined negative polar interrogatives, above). Although both negative polar interrogatives sought Buckley’s confirmation, Buckley chose to oppose the proposition of one, and ‘answered’ the other by stating that he did not remember. The reader will have noted that I have not assigned that answer to a specific ‘answer’ category. This is because several possibilities appear to present themselves. For example, a literal understanding of that answer would necessitate our categorising it as a ‘disclaim’ (that is, it intimates an inability on Buckley’s part – apparently occasioned by his poor recall – to provide Ward with the confirmation he sought). However, if we embrace a non-literal reading of ‘I don’t remember it’, we may prefer to categorise it as an ‘imply’ (that is, although ‘yes’ or ‘no’ was not provided explicitly, a negative response was inferable). In other words, Buckley did not remember it because it did not happen. Although such ‘implies’ are unusual in the modern courtroom, because of the expectation that witnesses answer the question posed (cf. Tiersma 2000: 168), Ward’s next question to Buckley, and Buckley’s response to that question appear to allow both of the above interpretations, that is, a ‘disclaim’ or ‘imply’: Mr. Ward. Was he not refused to read it? Mr. Buckley. No, upon my Soul
[‘do not confirm’]
This second negative polar also appears to suggest a third interpretation, namely, that Buckley could remember, but was using an ‘evading’ tactic (claiming that he did not remember) so that he did not have to provide the confirmation that had been requested. As Thomas (1995) highlights, pragmatically misleading or potentially pragmatically misleading utterances of this sort are regularly encountered in today’s trials. So much so, in fact, that ‘they could be seen as the norm for this type of interaction, and be interpreted in that light by participants’ (1995: 74). However, ‘lies’ are notoriously difficult to classify in practice, not least because the whole point of a lie is to mislead (cf. Grice 1975: 49). .. Emergence of cross-examination as an adversarial technique Thomas’s (1995) comment regarding pragmatically misleading utterances in the modern courtroom raises an important issue, namely, whether utterances are interpreted as such by participants because of the activity type in which they are engaged rather than because they are pragmatically misleading. I would like to propose that evidence like the Francia extract (above) suggests that
Chapter 10. Witnesses’ ‘answering’ strategies (1640–1760)
this conundrum is a feature of cross-examination itself, when undertaken by lawyers. It is worth noting that defence lawyers had only been permitted to cross-examine witnesses for a short period by the time of the Francia trial in 1716 (officially, since the Treason Act of 1696; Beattie 1991: 248–249). It is also worth noting that the very need to thwart an opponent’s argument necessitated that lawyers begin to ‘construct’ a representation of (the secondary) reality that corresponded to the facts as they wanted the jury to see them (in Ward’s case, from Francia’s perspective; cf. Hale & Gibbons 1999). Consequently, lawyers began to use questions in a different way to, say, the judicial examiners in Period 3 had utilised questions. By this I mean, they began to use questions as a means of building the necessary ‘evidence’ to convince or persuade the judges and/or jury that they should believe their version, and disregard the version of the opposing party (see Chapter 8).125 This effectively meant that, regardless of whether witnesses like Buckley were telling the truth, Ward and defence lawyers like him were increasingly attempting to persuade the judges and jury to believe that they were able to provide the requested information (or, in Buckley’s case, confirm the propositional content of the defence lawyer’s questions), but were unwilling to do so, because it would damage the prosecution’s case. .. A growing need for counter-strategies One consequence of the emergence of cross-examination as an advocacy strategy was that some witnesses found themselves in a similar position to defendants, that is to say, they had to thwart an opposing argument, justify their evidence and, in some cases, defend their character. Buckley’s main counter-strategy, resorting to increasingly resolute denials, was a tactic that defendants had commonly employed for some time, and witnesses were increasingly employing. It was not the only strategy, however. Indeed, a second witness questioned by Ward tended to answer indirectly and, when in difficulty, address the judges/jury. Lord Townshend was particularly aggrieved by the questions he faced from Francia, the defendant. Indeed, he ‘answered’ one with a ‘challenge’: [Context: Ward was questioning Townshend about Francia’s examination] Mr. Ward.
I desire to ask your Lordship whether you heard that Declaration read over to him? Ld. Townshend. I dare say I did. Mr. Ward. Did he not endeavour to excuse himself from signing it, till he had read it himself?
Questions and Answers in the English Courtroom (1640–1760)
Ld. Townshend. I don’t remember that, I don’t know that he made any Difficulty of signing it; but I am sure it could not be because he was refus’d to read it. [‘disclaim; elaboration’] Prisoner. Was not there any Reluctancy in me to sign it? Ld. Townshend. What do you mean? Have not I answer’d that already? [‘challenge’]
That ‘challenge’ signalled Townshend’s belief that the prisoner was wrong to ask him such a question, but Francia’s ‘answer’ to Townshend was to ask him a second inflammatory question, ‘Did not you offer me some Money to sign it?’. Townshend response was to denounce the prisoner for his behaviour (‘I hope you can’t say a thing of so much Infamy’), and then address the judges/jury. When Francia attempted to resume his questioning of Townshend, one of the judges ‘answered’ for the latter. This prompted Ward, the defence lawyer, to take over the questioning of Townshend. However, he was treated similarly, that is to say, Townshend addressed a short ‘answer’ to Ward, and then addressed the judges/jury ‘at length’. It is worth noting that Townshend began by stating that he ‘did not know whether it [was] proper to give [his] Reasons why [he] was convinc’d [Francia] did not deal candidly’, before summarising the contents of a letter that Francia had written to his wife whilst in prison: [text omitted. . . ] the Subject was to bid her not afflict herself, for he found better Company in Newgate than he expected, that the better Half of them were in upon the Government Account; that he had said nothing of Mr. Harvey that could hurt him, nor could he; that the Government had nothing against Mr. Harvey, but a general Suspicion that he was against the Government, which three Parts in four of the Nation were; and that he himself laugh’d at any thing the Government could do against him the Prisoner: When I found a Man write in his Stile, I could not but think he had not dealt ingenously.
It is also worth noting that Hungerford, a second defence lawyer, waited until Townshend had finished before asking ‘the Court whether it [was] proper to give Evidence of the Substance of a Letter without offering the Letter it self ’. The question suggests that (he, at least, believed that) Townshend should not have been permitted to recount the contents of a letter that had not been previously submitted as evidence. Significantly, a judge (Mr. Justice Pratt) once again came to Lord Townshend’s aid:
Chapter 10. Witnesses’ ‘answering’ strategies (1640–1760)
Mr. Just. Pratt.
This comes in Answer to Mr. Ward’s Question. He ask’d my Ld. Townshend, whether there was not some Promise that this Confession should not be made use of against the Prisoner? His Lordship gives this Account, and justifies himself, how he came to make use of it, and gives this as the Reason. Mr. Hungerford. But to give an Account of the Substance of a Letter without producing it, I apprehend, is not according to the Rules of Evidence.
It is difficult to know the extent to which Townshend’s dual strategy of appealing to the judges/jury and challenging/opposing the evidence given by the defendant/defence counsel was successful because of his high status or because he was a witness for the prosecution. However, Hungerford’s decision not to interrupt him, and a comment by a defence witness later in the trial suggests that Townshend’s status gave him some leverage. The comment occurred during the examination of Mary Meggison. I include the full examination below because it succinctly shows not only the different ways in which witnesses were treated by the different sides, depending on whether they were perceived as ‘friendly’ or ‘unfriendly’ witnesses by 1716, but also the different ways in which witnesses were responding to those opposing sides (cf. Tiersma 2000: 158–167): Then Mary Meggison was sworn. Mr. Hungerford. Do you know of any Offers that were made to the Prisoner, and by whom? Meggison. Upon the Twenty Eighth of September last I was in Mr. Francia’s Room, and Mr. Buckley came in and told him he should be tried suddenly, and there were a great many Witnesses against him; and he would swear against him, because, says he, you have cheated my Master of Five Guineas, and won’t swear against Mr. Harvey. [‘imply: elaboration’] Mr. Att. General. Was you in the Room then? Meggison. I sat upon a little Box at the Bed’s Feet, and it was so dark he could not see me. [‘imply: elaboration’] Mr. Att. General. How came you to Newgate. Meggison. I have been a great many times in Newgate. [‘evade’] Mr. Att. General. You dwell there sometimes, don’t you? Meggison. No, I never did. [‘do not confirm: elaboration’] Mr. Att. General. Are you a married Woman? Meggison. Yes. [‘validate’]
Questions and Answers in the English Courtroom (1640–1760)
Mr. Att. General. What is your Husband? Meggison. A Dealer, but he is not in England now. [‘identify: elaboration’] Prisoner. What Room was I in? Meggison. A little dark Room. [‘identify’] Prisoner. What do they call it? Meggison. The Lions Den. [‘identify’] Prisoner. Every Body knows that Room is a dark Room, that People can’t easily be seen in it. Mr. Hungerford. Did you hear Mr. Buckley say any thing more? Meggison. Nothing, but that he would bring my Lord Townshend into Court, on purpose to influence the Jury by his presence. [‘imply: elaborate’] Mr. Hungerford. As to these two Witnesses, we have several to speak to their Reputations; but I believe you have no doubt as to that. Sir. J. Jekyll. I dare say no one Person in Court believes a Word they say.
Notice, for example, that even when the Attorney General asked Meggison a non-conducive wh-interrogative (‘How came you to Newgate?), Meggison appeared to infer an incriminatory element, and thereby answered with an ‘evade’ (that is, she did not provide ‘yes’, ‘no’ or value for missing variable explicitly, or answer in such a way that one could be inferred). The Attorney General then asked a tag question to Meggison that was explicit in its denunciation (it implied that she had been an inmate at Newgate). Meggison strongly refuted the prosecution lawyer’s insinuation, so the Attorney General asked a polar interrogative that in another context may have been non-conducive. However, because of the questions that had preceded it, its function was clear – to once again call into question Meggison’s reputation (that she associated with men who were not her husband). In contrast to the Attorney General, Francia only asked questions that sought information from Meggison (notice that that information would not have been ‘new’ to Francia, however; see 5.6.1). That said, Meggison’s answers to his what-interrogatives helped clarify for the judges/jury how she was able to be in a room without being seen by Buckley. Meggison’s most damning evidence, however, came in response to Hungerford’s polar interrogative, for it suggested that the judges/jury were being deliberately manipulated (by Buckley and, by implication, the prosecution counsel). It is worth noting that Hungerford’s final comment suggests that he still felt it necessary to counter the Attorney General’s attempts to undermine Meggison’s reputation. However, he did so in a way that intimated that her reputation
Chapter 10. Witnesses’ ‘answering’ strategies (1640–1760)
should have been beyond ‘doubt’. As the extract reveals, his ‘no doubt’ comment was immediately refuted by Sir Joseph Jekyll, ‘I dare say no one Person in Court believes a Word they say’. Such comments reveal that the lawyers’ attempts to influence the judges/jury were not restricted to question-and-answer sequences alone in the EmodE courtroom (in spite of the fact that defence counsel, at least, were not ‘officially’ allowed to address the jury until after the Prisoners’ Counsel Act of 1836). Such comments also highlight the need to go beyond an investigation of questions and answers if we are to fully appreciate the dynamics involved. .. Courtroom data as narrative? Many of the above interactions between examiners and witnesses are not really ‘narratives’ in a pure Labovian (1972, 1997) sense, as the core narrative (i.e. the ‘what happened’ element) is provided as much by the presuppositions of the examiner’s (i.e. the teller’s) questions as by the witnesses’ (i.e. the knower’s) responses to them (Harris 2001: 60; Doty & Hiltunen 2002: 317). In other words, they are highly ‘fragmented’ accounts told by multiple tellers (cf. Labov 1972: 359–360, who defines oral narratives of personal experience as a linguistic method of replicating the temporal unfolding of events in the sequence in which they occurred; see also Section 3.3.2.1). Yet, Harris (2001) and Doty and Hiltunen (2002) propose Labovian-inspired models for trial data that can help us to recognise the core elements of ‘trial narrative’ (note that the ‘elaboration’ element is contained within square brackets to indicate that it is non-compulsory; Harris 2001: 60): Orientation – the circumstances which surround the narrative account, i.e. who, what, when, where? Core narrative (complicating action) – the account itself, i.e. what happened, including often what was said and seen as well as what was done. [Elaboration] – [provides further details, clarification, explication, etc. of the core narrative]. Point – significance of the narrative account for the larger trial narrative, i.e. usually the guilt or innocence of the defendant. Addressed explicitly to the jury.
Length constraints prevent an in-depth discussion of all of the above elements. Suffice it to say, point appears to be especially important in the interaction between witnesses and the lawyers, as it establishes the significance of the core narrative in the minds of the jury. However, I would suggest that the ‘guilt or
Questions and Answers in the English Courtroom (1640–1760)
innocence of the defendant’ is, in fact, the macro point (or the point of the larger narrative), which the individual witness accounts (or mini-narratives) build towards. This is not to say that lawyers will not ask witnesses to confirm the same or a related point. Indeed, a large part of the lawyer’s role by the mideighteenth century was establishing a ‘story’ that accounts for ‘evidence’ given by the opposing counsel, but from a perspective that helps their client/supports their case (see Chapter 8). It is worth noting, however, that my SPC data suggests that the point (or significance) of the core narrative was communicated as much by the witnesses as the lawyers. Indeed, Lord Townshend reintroduced an earlier point made by the defence team (i.e. that Francia had not been allowed to read his own examination/confession) so as to imply that their alternative interpretation was, in fact, incorrect (see p. 233). Like Oates in the Trial of Edward Coleman, Lord Townshend also provided extended narratives in response to ‘questions’ (see p. 250 and pp. 254–259). But such behaviour was unusual, according to my SPC data. Indeed, most witnesses preferred to elaborate their answers in minor ways, with the effect that a significant portion of their examinations were non-narrative in form (cf. Stygall 1994; Harris 2001).
. The witnesses’ interaction with the Court and defendants (1720–1760) Tables 34 and 35 provide a breakdown of the types of ‘answers’ that witnesses addressed to the Court and the defendants in Period 5 (1720–1760). Notice that the Period 5 witnesses tended to ‘elaborate’ their answers when interacting with the defendants, but not when interacting with the Courts. Notice, also, that they mainly utilised ‘identifies’ and ‘in/validiates’, that is to say, ‘answers’ that provided a missing variable/polarity decision explicitly when interacting with the Courts, but resorted to a variety of ‘answer’ strategies when interacting with the defendants (including ‘evades’, ‘challenges’, ‘do not confirms’ and ‘disclaims’). As explained in 9.4, the witnesses were interacting with two defendants, Captain Ambrose and Christopher Layer (1722). I suggested, in that section, that Ambrose’s strategy (of using ‘hypothetical’ questions, preceded by a short account of what the witness had previously testified) affected the witnesses’ responses, to the extent that they tended to provide additional detail to that which had been requested, as a means of emphasising the accuracy of their account:
Chapter 10. Witnesses’ ‘answering’ strategies (1640–1760)
Q. As the Rupert was between you and the Enemy, how could you distinguish whether I was near enough to do Execution? A. I could judge of the Distance as it appeared to me, and by our Shot falling short by the Distance you were from us, and the Distance we were from the Enemy; I think we in the Essex were two Miles from them, and you half a Mile nearer than we. Q. Then I was a Mile and a half off? A. Yes. Q. From the Situation you lay to windward, could you judge whether the Rupert was in a Line with the Admiral? A. Yes, because you was so near us, therefore I am sure you was not in a Line. [Court-martial of Captain Ambrose, 1745] Table 34. Function of answers addressed by witnesses to the Court (1720–1760) Function Imply Confirm Do not confirm/oppose Disclaim Supply Validate Invalidate Identify Problem Total
Pd 4 2 2 0 5 0 4 0 17 0 112
Pd 5 [–] [2] [–] [–] [–] [3] [–] [3] [–] [57]
39 6 1 31 6 79 77 91 2 105
Total [23] [2] [1] [7] [–] [17] [28] [16] [–] [56]
41 8 1 36 6 83 77 108 2 226
[23] [4] [1] [7] [–] [20] [28] [19] [–] [113]
Table 35. Function of answers addressed by witnesses to the defendants (1720–1760) Function Imply Confirm Do not confirm/oppose Disclaim Supply Validate Invalidate Identify Evade Challenge Problem Total
Pd 4 7 0 1 2 1 0 0 9 o 1 0 21
Pd 5 [3] [–] [1] [2] [–] [–] [–] [2] [–] [–] [–] [8]
32 9 7 15 2 9 16 31 3 3 1 128
Total [19] [4] [6] [6] [–] [5] [8] [6] [–] [–] [–] [54]
39 9 8 17 2 9 16 40 3 4 1 149
[22] [4] [7] [8] [–] [5] [8] [8] [–] [–] [–] [62]
Questions and Answers in the English Courtroom (1640–1760)
It is worth noting that the same witnesses did not ‘elaborate’ their answers when interacting with the Court, even when asked similar questions: Q. A. Q. A. Q. A. Q. A.
Did you ever see the Rupert in a Line with the Admiral? No. How do you know she was not in a Line with the Admiral? Because I saw both her and the Admiral. Was you in the Line? No. How far to windward of the Line? A Mile.
Indeed, less than one third of the ‘answers’ that witnesses made in response to the Court’s ‘questions’ (that is, 94 out of 333) provided additional/supporting information than was explicitly requested. As all of the ‘answers’ in the Period 5 column of Table 35 (above) relate to the Court-martial of Ambrose (1745), a possible explanation for the witnesses’ lack of ‘elaborates’ may be the procedure followed during that court-martial. By this I mean, that witnesses tended to ‘explain’ in greater detail only those responses that in some way contradicted information contained within their depositions (notice, in particular, that Period 5 witnesses tended to elaborate their ‘invalidate’-type answers).126 The witnesses questioned by Layer also ‘elaborated’ their evidence. However, their most interesting strategy appears to have been occasioned by Layer and his defence team’s character assassination tactics (as explained in 9.4, Layer was one of the few defendants to work in collaboration with their defence team). By way of illustration, Layer and his two defence lawyers intimated that Mrs. Mason’s primary motivation for giving evidence against Layer was that of profit (as 9.4 highlights, they used the same tactic when questioning Lynch): Mr. Ketelbey.
Mrs. Mason Mr. Att. Gen. Ld. Ch. Just.
Mr. Ketelbey.
Before that Time that the Two Messengers came, Mr. Turner and Mr. Speare, and seiz’d the Papers, and afterwards one of them went for Mr. Stanyan; I ask you, Whether you had shown those Bundles to any Body before that Time? No; I had shown them to no Body. She hath said so Two or Three Times before. Indeed, Mr. Ketelbey, we must direct you not to spend the Time of the Court so. You have ask’d her that Question Two or Three Times over. My Lord, I would very fain have the Truth come out.
Chapter 10. Witnesses’ ‘answering’ strategies (1640–1760)
Mr. Hungerford. I will ask you a Question or Two. What Trade or Business do you follow? What is your Trade or Occupation. Mrs. Mason. What is that to you? I have no Trade. Mr. Hungerford. I should have ask’d you another Question before; Have you not a Promise of Reward for the Service you do here, in giving this Evidence? Mrs. Mason. No, I have not. Prisoner. Nor you have received none? Mrs. Mason. No. You are an unjust Man. Ld. Ch. Just. Are you promised any Reward! Why don’t you ask her whether she is to swear for Hire? Is that a proper Question to ask a Witness? Mr. Ketelbey. I submit it to your Lordship, whether it is not proper to ask her this Question; Whether she hath not told any Person, and whom, that she was to have a Reward for coming hither? Prisoner. The Question is, Whether she hath never owned and confessed to any Body, that these Papers were opened before a Friend of hers, before the Messenger seized them? Mrs. Mason. No, my Lord, I never did. I never opened them before any Body.
Notice that the Attorney General complained about Ketelbey’s initial question, because it asked for evidence that Mrs. Mason had already provided. Notice, also, that the judge directed Ketelbey to not waste the Court’s time by asking ‘her that Question Two or Three Times over’. Ketelbey’s response to that ‘direction’ suggests that defence lawyers were increasingly recognising ‘contentious’ questioning as a legitimate means of getting to the truth (cf. Landsman 1990). Hungerford’s willingness to persevere in the face of judicial hostility also suggests a growing assertiveness on the part of some defence lawyers (see Chapter 8). Under such circumstances, it is not surprising that witnesses became self-protective (notice, for example, Mrs. Mason’s response to Hungerford’s question about her ‘Trade’; ‘What is that to you?. . . ’). Hungerford’s second question revealed his real motivation for asking about the witness’s ‘Trade’, for it presupposed that Mrs. Mason was ‘promised a Reward’, and thus intimated that she earned her living by accusing others (Langbein 1999: 320–321).127 Although Mrs. Mason categorically denied the accusation, Layer pursued the topic (‘Nor have you received none?’). Mrs. Mason once again denied the accusation. She also rebuked the defendant. The judge’s intervention at this point suggests that he was as unhappy with the de-
Questions and Answers in the English Courtroom (1640–1760)
fence team’s strategy as Mrs. Mason. That said, it did not cause Ketebley or the prisoner to change their tactics. It is worth noting, however, that the witness chose to address the judge from this point onwards.
. Insights gained At the beginning of our period (1640–1679), witnesses were primarily questioned by the judges. As the main aim of the judges was to procure information, they tended to be ‘cooperative’, on the whole (in a social as well as Gricean sense). Indeed, some provided additional information than requested. As the trial began to move towards a more markedly adversarial contest (1690s+), witnesses also became an increasing source of information for the lawyers (and, surprisingly, for the defendants). However, the lawyers’ increasing adoption of a more ‘contentious’ questioning style meant that witnesses needed to utilise strategies that were self-protective as well as ‘informative’, e.g. resolute denials, emphasising the accuracy of their account, etc. Some witnesses also looked to the judges to intervene on their behalf. When the judges did so, their comments suggest that the period covered by the SPC data (the 18th century, in particular) was a period of transition for all concerned, that is to say, the judges, lawyers, defendants and the witnesses. Those comments, and the continued activity of the Courts (and, to a lesser extent, the defendants) suggest, in turn, that the emergence of the modern AngloAmerican adversarial trial was far from ‘an inevitable development rushing to completion’ (Cairns 1998: 36). I will pick up on this point in the conclusion. In the penultimate chapter, I provide a brief account of some of the nonquestioning strategies utilised by EmodE participants in the courtroom so that we have a more rounded view of the dynamics of courtroom interaction in this period.
Chapter 11
Courtroom interaction in the historical period More than ‘questions’ and ‘answers’
. Participants’ use of ‘requests’, ‘requires’ and ‘counsels’ One of the primary aims of this work has been to examine questions in terms of their form and/or function, and a number of interrelating factors, such as where the question occurred in the discourse, why it was uttered, who uttered it, and to whom (cf. Stenström 1984: 150), and to examine answers in terms of their ‘appropriacy’ and purpose (cf. providing information/a polarity decision explicitly/indirectly, and supplying information that was not the requested information, etc.). Consequently, I developed a taxonomy that identifies questions (and answers) according to their: Interactional/structural intent, e.g. the position questions (and answers) occupy in the discourse and the purpose for doing so (cf. initiating a new exchange, responding to an initiation/continuing an existing exchange, and terminating an exchange, etc.). Illocutionary force, e.g. the speaker’s intention (cf. seeking information, seeking clarification, seeking confirmation, querying, undermining, accusing, providing information, denying an allegation, evading, etc.). Form, e.g. the (grammatical) question type or answer-type utilised, and (in the case of questions) its actual form in the text (cf. ‘what’, ‘did’, ‘or’).
By distinguishing between interactional/structural intent and force, I have also been able to identify those instances when participants initiated a new exchange or continued an existing exchange using an eliciting device other than ‘questions’ (i.e. they used utterances whose illocutionary force fell within the verbal action category of ‘request’, ‘require’ or ‘counsel’), as well as those instances when they used utterances to comment upon the utterances of others or terminate an exchange as opposed to responding to the (re)initiations of others (see 4.4–4.4.4).
Questions and Answers in the English Courtroom (1640–1760)
As my focus has been upon ‘questions’ and ‘answers’, the different participants’ use of additional eliciting devices has only been mentioned briefly. However, in Period 3 in particular, the dynamics of courtroom interaction cannot be fully appreciated unless we understand the different ways in which participants used ‘requests’, ‘requires’ and ‘counsels’, depending on their role and ultimate aim. In this penultimate chapter, then, I concentrate on the strategic ways in which three of the most active participants in the Period 3 SPC data – the judges, the defendants and the prosecution lawyers – used ‘requires’, ‘requests’ and, to a lesser extent, ‘counsels’.
. The judges’ interaction with defendants (1640–1679) As explained in Section 7.7, the judges’ interaction with the defendants was at its greatest during Period 3. Indeed, judges addressed 52.4% of their utterances to defendants (that is, 150 out of 286), making them their favoured addressee between 1640–1679. Although a large proportion of those utterances functioned as (re)initiations, they tended to have a force other than ‘questioning’. Indeed, judges addressed nearly as many ‘counsels’ as ‘questions’ to defendants (i.e. 17 compared to 21), three times as many ‘informs’ than ‘questions’ (i.e. 60 compared to 21), and nearly half as many ‘expresses’ than ‘questions’ (i.e. 9 compared to 21). The overwhelming impression of many of these ‘informs’, ‘expresses’ and ‘counsels’ is that judges were commenting upon – and thereby shaping – testimony as it was being given (see 3.3). A trial that amply demonstrates this is the Trial of King Charles (1649). Part of the charge against Charles I was that, as King of England, he had been . . . trusted with a limited power to govern by, and according to the laws of the land, and not otherwise [. . . ] yet nevertheless out of a wicked Design, to erect, and uphold in himself an unlimited and Tyrannical Power to rule according to his Will, and to overthrow the Rights and Liberties of the People [. . . ] hath Trayterously and maliciously levyed War against the present Parliament, and the People therein Represented . . . (King Charls his tryal . . . , 1648)
Charles was loath to provide an answer to it, when his ‘judge’, Lord President John Bradshaw, requested that he do so.128 Instead, he utilised a ‘responseinitiation’ to ask ‘by what power’ he had been ‘called hither’ (Charles’ use of (re)initiations is discussed in 11.4 and 11.6). Bradshaw interpreted the king’s
Chapter 11. Courtroom interaction in the historical period
re-initiation as a criticism of the legal authority of the High Court of Justice. Indeed, utilising a ‘response-initiation’ of his own, he pointed out that ‘if [he] had been pleased to have observed what was hinted to [him], by the Court, at [his] first coming hither, [he] would have known by what Authority’, and then required him, ‘in the name of the People of England’ to answer. But Charles refused. That refusal sparked a series of exchanges between Bradshaw and Charles that, on Bradshaw’s part, mainly involved ‘requires’, ‘counsels’ and ‘informs’ (twelve, eight and sixteen respectively). Several of these were made up of multiple forces (i.e. ‘inform’ and/or ‘counsel’ and/or ‘express’), as the following example illustrates: Sir, you have offered something to the Court, I shall speak something unto you the sence of the Court. Sir, neither you nor any man are permitted to dispute that point, you are concluded, you may not demur the Jurisdiction of the Court, if you do, I must let you know, that they over-rule your Demurrer, they sit here by the Authority of the Commons of England, and all your Predecessors, and you are responsible to them.
The above succinctly captures the overall goal of Bradshaw’s exchanges, namely, to alert the king to his ‘unacceptable’ behaviour and to persuade him to ‘acknowledg [..] the Authority of the Court’. The Trial of Charles is untypical in many ways, of course. The king was on trial for his life, the High Court of Justice had been hastily convened to specifically try him, any MPs likely to vote in his favour were refused entry to Westminster Hall, and Bradshaw had been elevated to the position of ‘Lord President’ because no judge of merit was prepared to try the king, etc. Yet, defendants from the other trials in Period 3 faced similar ‘informs’/‘cautions’/‘expresses’ to Charles. The following extract is taken from the treason trial of Edward Coleman (1678). As previously established, Titus Oates had invented a fictitious plot involving the Duke of York, and he named Coleman (secretary to the Duchess of York) as one of the ‘catholic conspirators’ (see 3.3.2). Coleman had expressed a concern that ‘the violent prejudices that seem to be against every man in England that is confess’d to be a Roman Catholick’ would mean that he would not be given a fair trial. The judge’s initial response to Coleman’s fear was to reassure him that he would. However, the judge had more to say on the subject:
Questions and Answers in the English Courtroom (1640–1760)
L. C. Just. [. . . ] Therefore you shall find, we [= protestants] will not do to you [= catholics], as you do to us, blow up at adventure, kill people because they are not of your perswasion; our Religion teacheth us another Doctrine, and you shall find it clearly to your advantage. We seek no mans blood, but our own safety. But you are brought here from the necessity of things, which your selves have made; and from your own actions you shall be condemned, or acquitted.
Notice that the opposition between ‘we’ and ‘you’ effectively positioned Coleman with those Catholics that ‘blow up at adventure, kill people. . . ’, etc., and the judge with those whose ‘Religion teacheth . . . another Doctrine’. Such features suggest that Coleman’s fears were founded, that is, that the assumption that ‘Roman Catholic equalled traitor’ was in operation, in spite of the judge’s earlier promise that he would ‘have a fair, just and legal Trial’. We have no way of measuring the impression that such comments may have made upon the jury, of course. What we do know is that Coleman was found guilty, and executed at Tyburn on 3rd December 1678, and that Oates, his main accuser, was later found guilty of perjury, and imprisoned (see also pp. 271–272, this chapter). . The judges’ use of ‘requires’ As previously established (see 7.7), the Period 3 judges’ favoured eliciting device when addressing defendants was the ‘require’ (a speaker utilises a ‘require’ when s/he wants (and expects) the addressee[s] to do something). Indeed, they addressed more than half as many ‘requires’ as ‘questions’ to them in Period 3 (i.e. 45 as opposed to 21). Many had the force of commands/instructions, and were re-initiations as opposed to initiations (indeed, only eight of the forty-five requirements addressed by judges to defendants initiated a new exchange). A theme common to nearly half (i.e. 22) of the ‘requires’ (both initiating and reinitiating) was the need for defendants to answer the charge put to them. These ranged from a simple ‘you must plead guilty or not guilty’ (Trial of Robert Tichborn, 1658) to the following, where the judge felt the need to make his authority explicit: You have a very great Grand Jury, forty persons, and we have power upon a special Act of Parliament to give order for a Charge to be brought in against you, and we have according to that power and Authority given order for this Charge to be brought in against you, and you are to answer to it [Trial of Dr. John Hewet, 1658]
Chapter 11. Courtroom interaction in the historical period
The primary function of such ‘requires’ was to compel a response (cf. Culpeper & Kytö’s 2000a ‘prompters’). Yet, as the following extract also reveals, several ‘requires’ exhibited an additional and/or alternative characteristic, namely, curtailing the ‘inappropriate’ ramblings of over-zealous defendants (see italicised section): Nay Sir, by your favour, you may not be permitted to fall into those discourses; you appear as a Delinquent, you have not acknowledged the authority of the Court, the Court craves it not of you, but once more they command you to give your positive Answer – [Trial of Charles I, 1648]
This was especially the case in the trial of Charles. Indeed, rather than attempting to ‘compel an (appropriate) response’, three ‘requires’ attempted to silence him: You may answer in your time, hear the Court first . . . Sir you shall be heard in due time, but you are to hear the Court first . . . Sir, You shall be heard before the Judgment be given, and in the mean time you may forbear.
In Archer (2002: 17), I showed that the Salem judges’ commands often revealed an underlying presumption of guilt (see also 3.5.2). Indeed, in Martha Corey’s trial, Hathorne (one of the Salem magistrates) paralleled the need to confess with the need to tell the truth and, in so doing, manifested a philosophy still dominant in courts today – ‘that, if someone is put under enough pressure, they will tell the truth, or the truth will emerge despite the teller’ (Lakoff 1990: 90). Interestingly, there are no instances of commands being used to pressure defendants to tell the ‘truth’ in Period 3. However, defendants occasionally raised the topic themselves. Edward Coleman, for example, insisted that: . . . when I was in Prison, I was upon my ingenuity charged; I promised I would confess all I knew. And I onely say this, That what I said in Prison is true, and am ready at any time to Swear and Evidence, that that is all the truth. [Trial of Edward Coleman, 1678]
The Lord Chief Justice’s response was to ask ‘It is all true that you say: but did you tell all that vvas true?’. In other words, he intimated that Coleman was being economical with the truth. Coleman responded by stressing that he ‘kn[e]w no more than what [he had] declared to the Two Houses’, but it was not the ‘answer’ that the Lord Chief Justice had wanted:
Questions and Answers in the English Courtroom (1640–1760)
L. C. Just. Mr. Coleman, I’ll tell you when you will be apt to gain credit in this matter: You say, that you told all things that you knew, the Truth, and the whole Truth. Can Mankind be persuaded, that you, that had this Negotiation in 74. and 75. Left off just then, at that time vvhen your Letters vvere found according to their Dates? Do you believe, there vvas no Negotiation after 75. because vve have not found them? Have you spoke one vvord to that? Have you confessed, or produced those Papers and Weekly Intelligence? When you ansvver that, you may have credit; vvithout that, it is impossible: For I cannot give credit to one vvord you say, unless you give an account of the subsequent Negotiation.
Nevertheless, the Lord Chief Justice was careful to inform Oates, the main witness against Coleman, that he must tell the truth when giving his evidence, so ‘that Mr. Coleman may be satisfied in the Trial’: Mr. Oates, we leave it to your self to take your own way, and your own method: only this we say, here’s a Gentleman stands at the Bar for his life; And on the other side, the King is concerned for His life: you are to speak the truth and the whole truth; for there is no reason in the world that you should adde any one thing that is false. I would not have a tittle added for any advantage, or consequences that may fall, when a man’s bloud and life lieth at stake: Let him be condemned by truth: you have taken an Oath, and you being a Minister, know the great regard you ought to have of the sacredness of an Oath; and that to take a man’s life away by a false Oath is murther, I need not teach you that. But that Mr. Coleman may be satisfied in the Trial, and all people else be satisfied, there is nothing required or expected, but downright plain truth, and without any arts either to conceal, or expatiate, to make things larger then in truth they are; he must be condemned by plain Evidence of Fact.
The irony, of course, is that Oates was later found guilty of perjury, strongly suggesting that Coleman was not ‘condemned by truth’. In which case, the Lord Chief Justice’s perspective of reality also played a part, for it meant that he could not – or chose not to – recognise the falseness of Oates’s ‘oaths’. Indeed, we see some evidence of this in the above extract. Notice, for example, the Lord Chief Justice’s comment regarding Oates’s occupation, which suggests that his mindset was such that he believed being a ‘Minister’ equated to being truthful (cf. his assumptions regarding Catholics).
Chapter 11. Courtroom interaction in the historical period
. The defendants’ use of ‘requests’ Nearly half (that is 49.2% or 91 out of 185) of the defendants’ (re)initiations in Period 3 had the force of a request. Requests also accounted for 76.9% of their (re)initiations for Period 3 as a whole (e.g. 103 out of 134; see Table 25, p. 229). Yet, it is worth noting that a mere six defendants – Charles I, Connor Lord Macguire, Sir Henry Slingsby, Mr. John Mordant, Thomas Harrison and Dr. John Hewet – were responsible for all of the requests that were addressed to the judges. Significantly, the six defendants faced charges of treason. Moreover, their status was that of professional or higher (see pp. 113–114, for definitions of the different status categories). I mention this to highlight that the defendants’ use of ‘requests’ in the SPC may not be representative of the EmodE period as a whole (see 12.9). As such, the following observations require (in)validation by further research. The theme of eighteen of the defendants’ requests was that they be given an opportunity to speak. Indeed, the king made the request six times. However, instead of being given ‘every opportunity’ to give his version of events, he tended to be interrupted: The King.
When I was here yesterday, I did desire to speak for the Liberties of the People of England; I was interrupted. I desire to know yet whether I may speak freely or not. Lord President. Sir, You have had the Resolution of the Court upon the like Question the last day, and you were told, That having such a Charge of so high a Nature against you, and your Work was, that you ought to acknowledge the JURISDICTION of the COURT, and to Answer to your CHARGE. Sir, if you Answer to your Charge, which the Court gives you leave now to do, though they might have taken the advantage of your contempt, yet if you be able to Answer to your Charge, when you have once Answered, you shall be heard at large, make the best Defence you can. But Sir, I must let you know from the Court, as their commands, that you are not to be permitted to issue out into any other discourses, till such time as you have given a positive Answer concerning the Matter that is CHARG’D upon you. [Trial of Charles, 1649]
Charles did not answer the charge, as instructed. Instead, he informed the Court that he ‘value[d] it not a Rush’, pointing out that he could not ‘acknowledge a new Court that [he had] never heard of before’. He then attempted to
Questions and Answers in the English Courtroom (1640–1760)
address a conditional requirement of his own to the judge, seemingly without much success: The King.
[text omitted] . . . If you will give me time, I will shew you my reasons why I cannot do it [answer the charge], and this – Here being interrupted, he said By your favour, you ought not to interrupt me; how I came here I know not, there’s no Law for it to make your King your Prisoner: I was in a Treaty upon the publique Faith of the Kingdom, that was the known – two Houses of Parliament that was the Representative of the Kingdom, and when that I had almost made an end of the Treaty, then I was hurried away and brought hither, and therefore – Here the Lord President said Sir, you must know the pleasure of the Court. The King. By your favour Sir: Lord President. Nay Sir, by your favour, you may not be permitted to fall into those discourses; you appear as a Delinquent, you have not acknowledged the authority of the Court, the Court craves it not of you, but once more they command you to give your positive Answer –
Notice that Charles’ behaviour caused the Lord President to make explicit reference to the intended pragmatic force of his or, rather, the Court’s utterance. When used by dominant speakers, such ‘metapragmatic acts’ are thought to ‘effectively remove any possibility of “negotiating communicative intent”’ (Thomas 1986: 194). Indeed, The subordinate interlocutor is obliged not only to produce a contingently relevant response (the adjacency pairs which conversational analysts describe), but also, because of the power relationship obtaining between the speaker and hearer, a polite response. (Thomas 1986: 195)
Thomas (1986: 195) goes on to explain that: The clash between the prepositional and the interpersonal is such that the subordinate must either directly contradict his/her superior (and risk aggravating the confrontation), or s/he must back down and lose the argument (or at best remain silent).
Charles opted to ‘risk aggravating the confrontation’. Indeed, when asked (by the clerk) to answer to his charge, the king requested that he be excused from having to answer, because to do so would ‘alter the fundamental Laws of the Kingdom’. As previously explained, in a case of treason, prisoners who would
Chapter 11. Courtroom interaction in the historical period
not plead were treated as though they had pleaded guilty (see p. 227). Yet, the king appears to have used this principal to his advantage: [The Court] had wanted to demonstrate the King’s guilt by calling witnesses, and allowing John Cook to condemn his policies and his conduct in a stirring speech for the prosecution. But it was not possible either to examine witnesses or to make out a public case for the prosecution if the accused stood mute or pleaded guilty, for in that case – logically enough – no such demonstrations were required by English law. Therefore the silence of the King destroyed a principal purpose of the trial. Certainly he could be taken as guilty and sentenced to death; but he could not be proved guilty for all the world to see. (Wedgwood 1964: 135)
It is difficult to assess whether the king’s refusal to make a plea, and his insistence that he be allowed to ‘give in [his] reasons why [he would] not answer’, was motivated as much by a desire to make a mockery of the whole proceedings as his belief that he was ordained under God, and thus could not be tried by them. What is clear is that the trial was a show trial, with only one possible outcome (Seymour 1986). The King was not the only defendant to question the legality of the judicial system he faced. Indeed, the latter was the theme of twenty requests. Most, however, chose to couch their requests with more reverence than Charles, even though, like the latter, their very lives depended on a successful outcome: This learned Gent. he is better able to speak what is Law than I; but under favour, and with submission, I do not think he may judge of the Laws, or the other (that spoke his private conception) to interpret the meaning of the Parliament. And (my Lord) if your Lordship please, I shall make this my humble appeal to the learned Judges of the Law; That if they will say in this respect that this is a lawful Judicature, I shall proceed [Trial of Dr. John Hewet, 1658]
Notice, in particular, that Hewet uses a preparatory illocutionary act prior to his hypothetical clause (‘And (my Lord) if your Lordship please, I shall make this my humble appeal to the learned Judges of the Law; That if they. . . I shall. . . ’) in addition to the obligatory deferential terms of address (‘my Lord’, ‘your Lordship’ ‘learned Judges’). He is also careful to utilise an indirect format. Of the remaining requests, thirteen sought counsel, nine sought a copy of/desired that the charge against them or the Act/Commission under which they were being tried might be read, two desired to know why they were being prosecuted, one requested trial by jury, and a further seven requests desired
Questions and Answers in the English Courtroom (1640–1760)
confirmation that the defendants’ lack of legal knowledge would not be used against them.
. The prosecution counsels’ use of ‘requests’ It is worth noting that the prosecution counsels also utilised ‘requests’ when they wanted to elicit something from the judges in Period 3. Most contained the obligatory deference markers. They also tended to contain explicit references to defendants undermining the authority of the Court in some way, and the need for (as well as the legal right of) the judges and/or themselves to ‘do their duty’: Att. Gen. My Lord, some of his own Coat have acknowledged the like Authority before him; but if Mr. Doctor be peremptory in this that he will not own your Authority, and plead to his charge, I must do my duty, that is, humbly to pray the Court, that if he refuse to answer, I must pray their Judgment, and acquaint him with the words of the Act; [which accordingly was read.] So that, my Lord, in default of Answer, if Mr. Doctor will not plead to this, my Lord I must thereupon pray that you will proceed according to the Act, as in cases of High Treason which is very penal. I have no more to say. [Trial of Dr. John Hewet, 1658]
The same prosecution counsel, Attorney General Prideaux, also addressed two ‘requires’ to the Lord President. The first, a conditional requirement, occurred during the Trial of John Mordant (1658): If Mr. Mordant will be pleased to answer whether or no guilty of those Crimes, then he shall have a fair Trial, and full Examination: If otherwise, the same Sentence must be required as before; that is, upon refusall, the Judgement pronounced for High Treason
Its instructional force – that the Lord President pronounce a judgement of High Treason – was indirect, however, helping to mitigate the face-threat to the latter’s negative face. In contrast, the second ‘require’ is much more direct at first sight (note the use of first and second person pronouns, in particular): My Lord we must not suffer this, pray if he will not be otherwise satisfied I must require your strict justice.
Chapter 11. Courtroom interaction in the historical period
But Prideaux was actually pointing out what (he felt) the Lord President must do if a particular action continued, rather than directly ‘requiring’ the latter to stop that action (cf. the defendants’ use of ‘requests’, above). Indeed, its co-text suggests that its primary force was that of an ‘express: protest’ (e.g. express a negative view about somebody else’s action. S does not want the action to continue and hopes to cause the action to stop, see Appendix 2), and its secondary force that of a ‘require’ (e.g. S wants (and expects) A to do something).129
. The defendants’ use of ‘requires’ and ‘counsels’ Defendants also addressed a number of ‘requires’ and ‘counsels’ to the judges (ten and two respectively). This is surprising, given their asymmetrical role. However, one explanation for defendants using verbal action categories that are primarily the reserve of powerful participants appears to be the high status of the former. By way of illustration, Charles (who had the highest status of all the participants in Period 3) was responsible for one of the ‘counsels’, and seven of the ten ‘requires’ (as previously highlighted, he was also keen on requests – he made eighteen, addressing all of them to Lord President Bradshaw). The king’s ‘counsel’ occurred in an exchange that also had the force of a ‘require’, but its main force appears to have been somewhere between a recommendation and a warning (see Appendix 2): I say this Sir, That if you will hear me, if you will give me but this delay, I doubt not but I shall give some satisfaction to you all here, and to my People after that, and therefore I do require you, as you will answer it at the dreadfull day of Judgment, that you will consider it once again
Indeed, the king appears to be have been strongly counselling the Lord President against a certain course of action whilst intimating that compliance with the king’s wishes was actually in the judge’s best interest (because a delay would have resulted in the king giving the Court the ‘satisfaction’ they were wanting and save them from eternal damnation!). Interestingly, many of the king’s ‘requires’ had the same force as the judges’, namely, ‘commands/orders’. ‘Commands/orders’ not only expect H to do something, they ‘presuppose that S has sufficient authority, and that S and H are in an asymmetrical relationship’ (see Appendix 2):
Questions and Answers in the English Courtroom (1640–1760)
Shew me that Jurisdiction where Reason is not to be heard . . . Shew me where ever the House of Commons was a Court of Judicature of that kind . . .
Consequently, we would expect them to be utilised by judges, but not by defendants. Indeed, Bradshaw actually informed the king that: ‘It is not for prisoners to require’ in one of their exchanges. The king’s response to Bradshaw’s ‘reprove’ is very telling: ‘I am not an ordinary prisoner’. The first of the king’s ‘orders’ (above) then followed, and provoked a ‘threat’ from the Lord President: Sir, We shew it you here, the Commons of England; and the next time you are brought, you will know more of the pleasure of the Court, and, it may be, their final determination
On hearing the second ‘order’ (see above), the Lord President commanded that the ‘Serjeant, Take away the Prisoner’. Another ‘require’ utilised by Charles had the force of a ‘demand’. As the following example reveals, ‘demands’ still ‘require/claim a certain course of action’ from H, but S expects that A will be reluctant to comply (cf. Wierzbicka 1987: 39, 70): I do not know how a King can be a Delinquent; but by any Law that ever I heard of, all men (Delinquents, or what you will) let me tell you, they may put in Demurrers against any proceeding as legal, and I do demand that, and demand to be heard with my Reasons, if you deny that, you deny Reason.
Notice that Charles made explicit reference to the intended pragmatic force of his utterance, just as Bradshaw had done. According to Leech (1980: 70– 71), such a strategy (making ‘the hearer understand that this force, and no other is intended’) not only removes any ‘polite ambivalence’, but also gives the utterance a ‘sledgehammer’ effect. This suggests, then, that ‘demands’ are as challenging as ‘requires’ when used by subordinate participants. Indeed, the above occasioned a stern ‘rebuke’ from the Lord President: Sir, you have offered something to the Court, I shall speak something unto you the sence of the Court. Sir, neither you nor any man are permitted to dispute that point, you are concluded, you may not demur the Jurisdiction of the Court, if you do, I must let you know, that they over-rule your Demurrer, they sit here by the Authority of the Commons of England, and all your Predecessors, and you are responsible to them.
The rebuke did not dissuade the king, however. He responded with a firm denial (which contained another illocutionary force indicating device (hence-
Chapter 11. Courtroom interaction in the historical period
forth IFID)), and a second ‘command/order’: ‘I deny that, shew me one president’. The fact that ‘prisoners [were not meant] to require’ may help to explain their relative infrequency in the other trial texts relating to Period 3. Indeed, there are only three instances: the first involved a defendant with a lesser status than the judge, but it was conditional: ‘My Lord, if you sit by the Act, sit according to the Act, and then I shall submit . . . ’ (Trial of Dr. John Hewet). The remaining ‘requires’ were utilised by John Mordant, a ‘gentleman’ who probably shared the same status as the judge (as with ‘requests’, the defendants utilising ‘requires’ were all facing charges of treason).130 Mordant’s first ‘require’ appears to have had the force of a command/order: ‘My Lord, convince me by this Act that I am to lose the right of Jury; I have not heard any reason why I must lose it’. In contrast, his second ‘require’ had the force of a ‘demand’ and, like Charles’s ‘demand’, made explicit the illocutionary force of his utterance: ‘My Lord, I demand this, to hear the Commission read’. In spite of such ‘inappropriate’ behaviour, Mordant was acquitted. The reason, according to the SPC data, was that Mordant was examined immediately after Dr. Hewet and Sir Henry Slingsby, and the Attorney General and judge appear to have believed that his behaviour (i.e. his repeated use of ‘requests’ and ‘requires’, and his refusal to make a plea) was occasioned by ‘ill advise’ he had received from them. Consequently, they spent some considerable time convincing him that his best course of action was to ‘plead . . . and put [himself] upon . . . Trial’. And Mordant eventually complied.131
. Insights gained Length constraints have forced me to be brief in this penultimate chapter. Nevertheless, I believe that my ‘snapshot’ of the Period 3 judges/defendants’ use of ‘requests’ and ‘requires’ is sufficiently detailed to demonstrate that much is to be gained by studying more than questions and answers, in particular, a more rounded appreciation of the dynamics of EmodE trial talk. We have also gained a better sense of the confrontations that occurred between the judges and defendants, and the ‘risky strategies’ that some of the latter were willing to adopt at moments of crisis (in particular, the use of IFIDs; cf. Thomas 1986).132 Charles I was the most confrontational, of course. Yet, it is worth reiterating that the other defendants to utilise ‘requests’ and ‘requires’ also faced accusations of treason (further research is therefore required to determine whether this need to go beyond questions and answers relates to treason trials only or,
Questions and Answers in the English Courtroom (1640–1760)
alternatively, is a feature of defendants who enjoyed a ‘high[er]’ status: see 12.5 and 12.9). Fortunately, my annotation scheme is such that differences between demanding, requiring and ordering can be captured at the ‘function’ level (cf. ‘demand’, ‘require’ and ‘order’, which are subsumed within the ‘require’ verbal action category; for definitions, see Appendix 2). The major focus of this study is not ‘requires’ or ‘requests’ however, but ‘questions’ and ‘answers’. Consequently, I begin my concluding chapter (following) with a brief summary of my main findings in relation to questions and answers, and then assess the extent to which I have achieved my aim of enhancing our understanding of EmodE courtroom discourse.
Chapter 12
Concluding comments
. Approach adopted in this work In this work, I have sought to enhance our understanding of historical courtroom discourse by engaging in a sociopragmatic analysis of sixteen trial texts taken from the Sociopragmatic Corpus (1640–1760). As trial talk, then as now, was largely made up of questions and answers, and questions and answers were typically used by identifiable participants (Archer 2002; Culpeper & Kytö 2000a), I began by establishing what it is about questions and answers that helps us to recognise them as such both generally (see Chapter 2) and in the specific context of the modern/historical courtroom (see Chapter 3). I then developed a three-level classification system of questions and answers that captures their interactional intent, force and, where applicable, form, and implemented this to the sixteen trial texts in the SPC (see Chapter 4). My analysis of the SPC data began in Chapter 5, with an overview of the formal aspects of the trial data as a whole (i.e. 1640–1760). In particular, I identified the various forms of questions and their frequencies, and pointed out that some were particularly multifunctional (i.e. what-interrogatives), and others, highly ‘routinized’ (i.e. ‘Did/do you know. . . ’). I also pointed out that the bulk of the interrogatives were used to elicit something (be it information/confirmation/clarification or an action, etc.). That said, some interrogatives in the SPC data had a ‘reporting’ function (i.e. reported questions that participants – witnesses, in particular – had asked others or had had addressed to them during the alleged primary event). My most important ‘finding’, however, was that the frequency with which questions were used, the function that they served, and their ability to achieve their social and/or interactional goal depended, in large part, on a number of sociopragmatic factors. These include the speech event (including the type of trial), the position of the question[s] in the discourse, the role of the user and addressee, the ultimate aim of their interaction, and the date of the trial(s). The recognition of the importance of sociopragmatic factors accounts for the focus of Chapter 6, that is to say, the supplying of a general overview of the SPC participants according to the role that they adopted, and a discus-
Questions and Answers in the English Courtroom (1640–1760)
sion of the interactional intent of their utterances (in particular, the frequency with which they utilised questions compared to other speech acts/eliciting devices over the 200-year period of the SPC). Chapters 5 and 6, in turn, provided the foundation for Chapters 7–11, which examine the utterances of the participants who adopted the most active roles (i.e. the judicial examiners, the lawyers, the defendants and the witnesses). The following sections below assess some of my findings in relation to the above, and determine the implications that my work has for our understanding of questions and answers, both generally and in the context of the historical courtroom. In regard to the historical courtroom, the reader should note that I had one overarching goal in this book, namely, understanding the strategic use that participants made of questions and answers. The culmination of my argument has been that, if we to are understand questions and answers, we must take a number of contextual factors into account. For example, my examination of the SPC data suggests that the roles that participants adopt are particularly important (in an institutional context, at least). Consequently, I start my detailed conclusions with an investigation of how participants’ roles were changing, leading to ‘new’ discourse practices and, in turn, to changes to the (discursive norms of) the historical courtroom itself. I then summarize the participants’ specific use of questions (and answers), depending on their role, before assessing the extent to which questions can be seen as ‘controlling’ in the EmodE courtroom. The issue of ‘control’ is then picked up again, as I consider the extent to which any of the ‘inherent’ characteristics of questions discussed in Chapter 2 are truly inherent. Finally, I explore the extent to which my work has strengthened the relationship between corpus linguistics and historical pragmatics, before outlining my plans to expand the trial section of the Sociopragmatic Corpus.
. 1640–1760: A period of emerging and changing roles The SPC data suggests that discourse practices in the EmodE courtroom were undergoing change. By way of illustration, the judicial examiners were responsible for the development of the case at the beginning of our period (1640–1679 especially), and the prosecution counsels – when they did appear – adopted a supportive role. The judicial examiners tended to ask witnesses questions that were information and, to a lesser extent, confirmation-seeking at this time, and to ask defendants questions that were querying and/or clarificationseeking. However, as the EmodE period progressed, the judges questioned
Chapter 12. Concluding comments
witnesses and defendants less and less. Moreover, the questions that they addressed to witnesses changed function, becoming more clarification-seeking. This change in function occurred at the same time as defence counsel began to appear (1680 onwards in my data). The arrival of defence counsel also coincided with (some say resulted from) an expanded role for prosecution counsel (cf. Langbein 1978; Beattie 1986). Put simply, the prosecution counsel took over the questioning of witnesses (on behalf of the State/prosecutor), and the judicial examiners began to ‘play a reactive [as opposed to pro-active] part in proceedings’ (Landsman 1990: 520). This is not meant to imply that judicial examiners had become the ‘neutral’ umpire that we might associate with that role today, for this was clearly not the case. Indeed, the EmodE assumption that defendants were ‘guilty until proven innocent’ often meant that their allegiances were very much with the (prosecutor and his/her) prosecution counsel. However, the arrival of the defence lawyers, and the increased activity of the prosecution lawyers did lead to a more ‘contentious’ questioning style (Landsman 1990: 522). And the new form of questioning led, in turn, to (i) the majority of defendants choosing not to take an active part in their defence (this was especially the case in Period 5), and (ii) ‘unfriendly’ witnesses, in particular, experiencing some of the same phenomena that defendants had endured for some time (i.e. having their ‘evidence’ contradicted, and their credibility questioned). The need to provide persuasive evidence also accounts for the more thorough questioning of witnesses that we evidence in the SPC as the period progresses, and, conversely, the development of more explicitly adversarial questioning strategies, the characteristics of which bear a strong resemblance to the system we have today (but see 12.2.1 following). For example, opposing sides were increasingly using questions as a means of controlling and, on occasions, undermining their respondents’ contributions so that they could steer ‘the testimony of witnesses’ in a way that created a ‘story’ – or ‘secondary reality’ – that was of maximal benefit to their clients’ case (cf. Walker 1987: 59–60; Tiersma 2000: 160–161; Hale & Gibbons 1999). Those ‘stories’ were increasingly established over a (number of) questioning sequence(s), and often involved more than one participant. In other words, lawyers were increasingly designing their utterances so that they did not just relate to those that they followed (the immediate questioning sequence of which they were a part), but also to what had gone before and, ultimately, to the context of what was at issue in the trial as a whole (the guilt or innocence of the defendant: cf. Drew 1985: 137). They were also attempting to persuade the judges/jury to believe that witnesses who did not ‘cooperate’ were able to provide the requested information, but were un-
Questions and Answers in the English Courtroom (1640–1760)
willing to do so because it would damage the opposition’s case (cf. Harris 1984; Archer 2002). Not surprisingly, witnesses began to utilise strategies that were self-protective as well as ‘informative’, e.g. resolute denials, emphasising the accuracy of their account, etc. Some witnesses also looked to the judges (as well as to their own counsel) to intervene on their behalf. .. The emergence of the adversarial system?: Assessing my work in relation to previous (historical) studies One of the major differences between previous historical studies (e.g. Landsman, Langbein, Beattie) and my own work is that I draw from a number of sources, including Treason trials (similar to those reported in the State trials), Sessions of Oyer and Terminer, and Old Bailey sessions, etc.) My use of Treason trials, in particular, means that I see the emergence of the defence counsel in the late seventeenth century as opposed to the early eighteenth century (cf. Beattie’s 1986 study of the Surrey Assizes, and Langbein’s 1978 study of the Old Bailey Sessions Papers). As my interest is linguistic, I also attempt to explain the new discursive practices that were emerging at this time. In contrast, many of the historians are happy to highlight the ‘flowering of the art of cross-examination’, without explaining what it actually entailed. In respect of the ‘art of cross-examination’, I suggest that some of the emerging practices of the lawyers were strikingly similar to techniques used in modern courtroom examinations (see 12.2 above). The EmodE trial was not the same as a modern trial in other respects, however, not least because: 1. The ‘inquisitorial’ procedure was still in evidence (cf. the Court-martial of Ambrose, 1745). 2. When counsel were present, the judicial examiners determined the extent to which defence counsels, in particular, were actively involved. 3. The judges often intervened in the examination sequences to ask questions (mainly of witnesses, but also of counsel). The counsels, defendants (and, very rarely, the witnesses) also intervened in the examination sequences of others, giving the EmodE courtroom a fluidity that is lacking today. That said, I would suggest that the ability to intervene in this way intensified (rather than decreased) the ‘contentious’ nature of the proceedings. This was especially true of the eighteenth century trials. Indeed, the differing perspectives of the opposing sides become glaringly obvious in the later SPC data.
Chapter 12. Concluding comments
Yet, the adversarial system we have today was not an ‘inevitable’ consequence of the changes that took place in this period (see Sections 3.4.3–3.4.3.2), for modern advocacy, in its strictest sense, involves more than just the examination and cross examination of witnesses. It involves addressing the jury as a means of ensuring that jurists are fully informed of all the facts, and all the possible interpretations of those facts, when reaching their verdicts. And, as Cairns (1998: 2) explains, full defence by counsel was only achieved in the 19th century, through the Prisoners’ Counsel Act’ (1836) and related reform, including the campaign against capital punishment (see 12.9).
. The efficacy of using contemporary approaches to examine historical data In Section 3.4.3.2, I highlighted Cairns’ (1998: 36) concern that legal historians have allowed ‘present concerns’ and ‘practices’ to bias their analyses. As this work has shown, however, contemporary techniques do have an historical application – as long as we are sensitive to the socio-historical context (Jacobs & Jucker 1995: 19). By way of illustration, I try to use ‘labels’ that the EmodE participants themselves used (i.e. ‘question’, ‘request’, ‘require’, ‘demand’, ‘plead’, etc.). In this way, I am following a tried-and-tested approach to the recovery and scrutiny of historical utterances (see, for example, Schlieben-Lange 1976).133 This is not meant to imply that I am wholly reliant on explicit performatives. On the contrary, as I am interested in ‘speech acts’ as functional units – and ‘speech acts as functional units do not correspond directly to speech act verbs’ (Jucker & Taavitsainen 2000: 70) – I do not restrict myself to performative/speech act verbs that appear in the texts, but utilise evidence of all ‘speech act’ phenomena (direct and indirect). As Section 12.2 highlights, I also go beyond the level of the ‘speech act’ in order to provide the reader with a better sense of the discursive norms of the EmodE courtroom, and the processes (linguistic and extra-linguistic) that effected change. In addition, I have recognized and ‘owned’ a sympathy on my part for the defendants (occasioned by the EmodE assumption of being ‘guilty until proven innocent’), as a means of ensuring that my findings are not irretrievably coloured in any way. I have also made concerted efforts to appreciate the EmodE courtroom system from the point of view of the contemporaries themselves (see Chapter 3 and also 12.9). The reader is in the best place to determine my success (or failure) in this regard.
Questions and Answers in the English Courtroom (1640–1760)
. Questions: Not just the preserve of the primary examiners As previously stated, my overarching goal was to discover the strategic use that participants made of questions in the context of the courtroom. It is worth noting that the EmodE primary examiners (the judicial examiners and the lawyers) addressed most of their questions to the witnesses.134 Those questions served a variety of micro and macro purposes, including seeking information, clarification, confirmation and, in the case of the lawyers towards the end of the period covered by the SPC data, constructing a ‘story’ or secondary ‘reality’ for the jury (see 12.2). Questions, in turn, often exhibited controlling, undermining and accusing functions. I am therefore aware that a large part of my findings display a common theme of modern courtroom literature: namely, the control achieved through questions (cf. Atkinson & Drew 1979; Harris 1984). However, as I have argued throughout, this is only part of the story, not least because it suggests that questions are always a manifestation of power when uttered in the courtroom (cf. Walker 1987: 62) – and, in the EmodE courtroom, defendants were also permitted to ask questions of witnesses. Moreover, those questions exhibited similar functions to the primary examiners’ questions (see Chapter 9). .. Questions did not always control the contributions of respondents The difference between the defendants and the primary examiners, of course, was that the defendants had the ‘legitimate’ right to request but not the ‘coercive power’ to shape witnesses’ responses. They also lacked the primary examiners’ (growing) specialist knowledge/expertise (cf. French & Raven 1959; SpencerOatey 1992; Thomas 1986). Consequently, they tended to secure their interactional goals (witnesses, in the main, responded to their ‘questions’), but not their discoursal and/or social goals (defendants experienced difficulties when attempting to procure the relevant information/clarification/confirmation, etc. that might ‘prove’ their innocence). One might conclude, at this point, that questions should not be seen as ‘controlling’ in and of themselves but, rather, as having the ability to control when used by dominant participants. Of course, such a conclusion is only viable if we recognize that having the ability to control respondents’ contributions is not the same as controlling respondents’ contributions. For example, a factor that affected the primary examiners’ ability to control respondents’ contributions in the SPC data was the extent to which respondents’ individual goals overlapped/clashed with their goals. By this I mean that respondents who had
Chapter 12. Concluding comments
a great deal invested in the outcome of the interaction (i.e. the avoidance of punishment and/or the slurring of their character) often employed strategies that appeared to be cooperative. However, that cooperation was at an interactional level only. Respondents resisted giving information that might hamper their personal cause and/or that clashed with their own sense of the ‘truth’ (cf. Archer 2002; Doty & Hiltunen 2002).
. The need to go beyond a study of questions and answers Defendants and witnesses (especially those with a higher status) were at their least ‘compliant’ when their assigned role rendered them ‘powerless’ to speak and/or open to ‘character assassination’. The most obvious example of this is that of Charles I (see Chapter 11). A common strategy of the primary examiners, at this point, was to invoke the rights and power attached to their role, as a means of getting the subordinate participant to submit. The eliciting device they used was not the question in such circumstances, but the ‘require’ and, to a lesser extent, the ‘counsel’. The SPC defendants also made use of the same eliciting devices, albeit infrequently – Charles, for example, ‘demanded’ that he be allowed to speak. However, defendants tended to favour the ‘request’ (indeed, the majority of their utterances were requests in Period 3). It is worth noting that some of those ‘requests’ (like some of their ‘reports’) were designed so as to express their inability to provide the requested information/action and/or to convey why/that Y (proposed by S/others) could not be right (Appendix 2). In other words, they were ‘defensive’ techniques. I would argue, then, that (like the role of questioner) the role of initiator was not a ‘non-transferable marker of power’ in the EmodE courtroom (cf. Walker 1987: 62). I would also reiterate that those interested in (historical) ‘trial talk’ need to study more than just questions and answers if they are to fully appreciate the dynamics of the EmodE courtroom. Such study, in turn, would have the added benefit of helping [in]validate my hypothesis that ‘requires’ and ‘counsels’ were used at moments of crisis (for example, when defendants were not complying with the desires of the Court). As previously indicated, further study would also help determine whether ‘requests’ and ‘requires’ were a feature of particular trials (i.e. Treason trials), or a feature of defendants of a high status (see p. 279).
Questions and Answers in the English Courtroom (1640–1760)
. Implications for questions generally Schegloff (1978: 82) suggests that ‘even where an utterance is in the linguistic form of a question, and seems to be doing questioning, the latter will not be adequately accounted for by the former’ or, indeed, vice versa. His main point, of course, is that ‘question forms can be used for actions other than questioning, and questioning can be accomplished by linguistic forms other than questions’ (Schegloff 1978: 85). Although a valuable point to make, I found that ‘when the forms and functions of questions are examined together, it becomes evident that a relationship exists between the two’ (Freed 1994: 635). Indeed, the majority of the questions in the SPC data tended to have an interrogative form and an information-seeking function.135 This is not meant to imply that such characteristics are ‘inherent’. On the contrary, the main argument of this work is directly opposed to the semanticists’ view that contextual factors can be disregarded when defining questions, not least because those factors appear to directly influence the operation/function of questions (and their respective answers: see 12.7 following). Indeed, I believe that we should regard supposedly ‘inherent’ characteristics in the same way that Gazdar (1979) regards presuppositions, that is, as ‘potential’ characteristics that are actualised – or cancelled – depending on the context. These characteristics might include: 1. The (categorical) view of an interrogative as an incomplete object that needs to be augmented, by something else being added to it (for not all questions require a verbal response, cf. rhetorical questions). 2. The (propositional) view of questions as requests for information (for questions seek more than just information). 3. The (imperative-epistemic) view that questions oblige the respondent to speak while restricting the prepositional content of his/her answer and thus contain a ‘control’ element in the underlying structure (cf. Aqvist 1965; Katz & Postal 1964). 4. The (Searlean) view that the speaker wants an answer to his/her question which s/he does not know but that the addressee does know (for lawyers, in particular, ask friendly witnesses questions for which they know the answer). I believe that a systematic approach to question-identification that considers contextual factors such as ‘role’, ‘status’, etc., at the level of the utterance can help us to determine which characteristics are in operation, and which are cancelled.136 By way of illustration, my findings suggest that several of the above characteristics tend to be actualised by the courtroom context (historical
Chapter 12. Concluding comments
and modern). By this I mean, questions (and a number of other ‘verbal action categories’, i.e. ‘request’ and ‘require’) tend to serve an ‘eliciting’ function. When asked by the powerful, they also impose illocutionary and discursive constraints on the answer, and thus give indications about what a possible (appropriate) answer might be. This helps to explain why question-forms that are usually regarded as non-conducive (i.e. wh-interrogatives, yes/no questions) can become conducive, and why, although a speaker may intend that the hearer interprets his/her question as ‘rhetorical’ (i.e. as not requiring an answer), the hearer may nevertheless have cause to want to provide an answer, and thereby treat it as an information seeking question. Even so, we must not make dangerous assumptions about the use of questions because of the context before checking whether they actually apply. By way of illustration, I found that some of the wh-interrogatives that are given a broad classification when used by examiners in the modern courtroom (i.e. what-interrogatives) were not as unrestricted in the EmodE courtroom. Yet, Culpeper and Kytö (2000) tend to classify what-interrogatives as ‘open questions’ only, even though they draw from the same data source (i.e. the CED). A second ‘assumption’ that we should be aware of relates to so-called ‘conducive’ questions, not least because I found that not all ‘conducive’ questions were used coercively, even by the primary examiners (a finding that led me to conclude that conducivity should be regarded as a pragmatic issue; see Archer 2002; Piazza 2002). A third assumption relates to the extent to which some questions in the courtroom, in particular, lawyers’ questions to friendly witnesses, seek information that is already ‘known’ to both parties (which, in turn, suggests that their primary intention is not necessarily to elicit ‘new’ information).
. Implications for answers I am aware that my main motivation for examining answers was so that I might better understand the role of questions in the EmodE courtroom. Even so, I believe my research has implications for answers in general. By way of illustration, as with questions, I would suggest that there are various parameters we must consider if we are to understand ‘answers’. These include: 1. The local constraints at the exchange level (i.e. the extent to which answers are conditionally relevant (Sacks et al. 1974)).
Questions and Answers in the English Courtroom (1640–1760)
2. The situational or appropriateness constraints (i.e. the extent to which answers observe/conflict with the pragmatic parameters of relative power, status and social distance (see below)). We might also wish to take heed of: 3. The position of an answer within the discourse (i.e. whether they directly follow a question (cf. Labov & Fanshel 1977: 65; Schegloff 1984: 35)). 4. The extent to which they provide information (be it new or given, complete or partial, verbal or non-verbal (cf. Groenendijk & Stockhof 1986; Riley 1986)). In regard to the fourth point, in particular, it is worth reiterating that an ‘answer’ is a discursive element which has several purposes, one of which is to provide requested information. Indeed, an answer may be carrying one (or more) of several illocutionary force(s) at any given time, and still function as an answer. Another point to bear in mind is that different activity types have different interactional norms, with the result that participants have different obligations to respond to questions. For example, a participant’s role may be such that they feel compelled to breach pragmatic norms (cf. Section 2.3; see also Hymes 1972: 285 and Fairclough 1986: 34). For these reasons, I would suggest that the above are best considered as ‘potential’ as opposed to inherent features of answers, which (like the characteristics of questions) can be actualised or cancelled in context.
. A corpus-based approach to pragmatic phenomena: How successful? Given the data problems encountered by those wishing to study the language of the past, the relationship between historical pragmatics and corpus linguistics is, by necessity, a close one. I have attempted to strengthen that relationship even further by adding ‘interpretative, linguistic information to an electronic corpus’ (Leech 1997: 2, original emphasis), which makes possible linguistically motivated retrieval at the touch of a button. As annotation is designed to capture the ‘what’ and the ‘how’ as opposed to the ‘why’, we still have to engage in qualitative analysis as a means of exploring ‘the importance of [our] findings’ (cf. Biber et al. 1998: 5). The reader may therefore be wondering why we have to engage in corpus annotation techniques at all. The answer is that we don’t. However, I would argue that my particular investigation, studying the relationship between the role of the par-
Chapter 12. Concluding comments
ticipants and the various verbal action categories utilised by them, was made easier because of the systematic identification of functional/contextual aspects at the level of the utterance (the speaker[s]’ and addressee[s]’ role, status, age, gender, interactional intent, force of utterance, etc.). I have already highlighted the originality of an annotation scheme that is able to treat contexts as dynamic (see Chapter 4 and also Archer & Culpeper 2003: 43, 51). Suffice it to say, its ability (i) to take account of the characteristics of the speaker and addressee, and (ii) to identify the position of the utterance in the interaction (via the interactional intent field) are both valuable steps in advancing pragmatic and discoursal annotation work (the latter, in particular, is especially important when pragmatic force tends to be cumulative; see 12.2 above and also Thomas 1986: 215). An additional strength of my annotation scheme is that it can provide quantitative figures with which to begin to (in)validate hypotheses respecting the EmodE question (at least in relation to the courtroom).137 I see this as particularly important, as many of the quality summaries of the period are forced to rely on general statements (see, for example, Rissanen 1999). Suffice it to say, there is still much to do, not least capture the effect of an ‘audience’ (i.e. the way in which a speaker may amend his/her utterance because of an awareness that it may/will be overheard by a third party). This issue was relevant to the present work, of course, as the real addressees in the EmodE courtroom were the jury. Why, then, was this not picked up in our initial scheme? The answer is a simple one – because most of the utterances relating to the trial proceedings would have had to be categorised in this way. In hindsight, however, I believe that we should consider expanding the addressee field so that a value for ‘audience’ can be included when the text-type demands it (this may prove especially beneficial for the drama texts, i.e. when a character communicates to the audience in an aside).138
. Plans to expand the trial texts in the Sociopragmatic Corpus A strength of my work is that I draw from a number of trial-types as a means of gaining a more rounded view of the historical courtroom (i.e. bigamy, attempted murder, forgery, treason, writing and publishing scandalous letters, conspiracy, rioting and enticing rebellion, etc.). As such, I am able to take some steps towards establishing the ‘discursive norms’ of the 1640–1760 courtroom. Indeed, I have suggested that defence lawyers made their first appearance in the English courtroom; defendants increasingly left their defence to counsel
Questions and Answers in the English Courtroom (1640–1760)
(when present); judges questioned witnesses and defendants less in the eighteenth century than they had in the seventeenth, and began to adopt more of a presiding role; lawyers, in turn, became more involved in the examination procedure; and witnesses faced increasingly ‘adversarial’ questioning strategies (i.e. they had their evidence contradicted, and their credibility questioned), and, as a result, had to adopt defensive counter-strategies. As I argue in Archer (forthcoming), my work also takes the first few steps towards providing a means of measuring the ‘(a)typicality’ of Early Modern English trials. For example, my findings respecting the sixteen SPC trial texts suggest that two texts in particular – the Courtmartial of Captain Ambrose (1745) and the Trial of Charles I (1649) may be atypical. The former is atypical because of (i) its strong question and answer format, occasioned by the Court’s practice of utilising a series of ‘routinized’ questions, in response to a deposition read prior to questioning, and (ii) the defendants’ practice of using long questioning sequences when addressing witnesses. The Trial of Charles I (1649) is atypical because of the king’s ‘excessive’ use of ‘requests’ and ‘requires’ given his role (i.e. eighteen and seven respectively), many of which were confrontational in tone (see Chapter 11). That said, my measure of (a)typical features is only valid if my identification of ‘discursive norms’ is valid, that is, if the trial texts I utilise are typical of (i) the particular trial types they are meant to represent at that particular point in time, and/or (ii) the courtroom in general during the late EmodE period. Indeed, further study might reveal that the Ambrose courtmartial is typical of this type of trial, but untypical of the historical courtroom as a whole. Alternatively, we might find the Ambrose courtmartial’s question-and-answer format is typical of the historical courtroom as a whole, and that some of the other SPC trials are atypical for the period. In particular, we might find that defendants who utilised eliciting strategies similar to Charles were facing similar charges (i.e. treason) and/or were of a high status (see p. 273). I therefore intend to expand the trial section of the SPC corpus by adding texts with publication dates that fall between 1640–1760. By so doing, of course, we will also be in a better position to ascertain whether the greater activity of the defence counsels in 1680–1719 than in 1720–1760 is an anomaly of the SPC data. This is especially important when one considers that historians date the emergence and/or increased activity of counsel from the 1720s onwards. I also intend to expand the coverage of the corpus a further 120 years, so that the SPC captures the period in which the criminal trial achieved its modern adversarial shape (Cairns 1998: 2). My reasons are two-fold: To assess changes to the dynamics of the courtroom occasioned by the introduction of
Chapter 12. Concluding comments
full defence counsel and, by so doing, determine the true impact of the lawyers. Like Cairns (1998), I believe that my efforts will be more successful for the period 1760–1880 if I were to draw from a variety of courtroom sources, and also utilise secondary sources that provide clues respecting the views of the barristers themselves. For ‘the profession’: [. . . ] demanded certain standards of behaviour from its members [from the late 18th century onward], and these rules of etiquette, informally enforced by social pressure, might affect the representation of prisoners. An over-zealous barrister on the Midland Circuit, for example, was expelled from the circuit mess in 1790 in respect of his handling of a prisoner’s defence. (Cairns 1998: 33)139
In light of the above-mentioned ‘rules of etiquette’, I will be seeking to identify those (linguistic) features that barristers claimed distinguished ‘good’ advocacy from ‘bad advocacy’ over the additional 120-year period, and determining the extent to which actual trial practice reflects these views. I am particularly interested in whether ‘good’ advocacy constrained/allowed participants to ‘tell their story’ in their own words. I will also be seeking to establish any further links between (linguistic) performance and status, as a growing number of ‘gentlemen’ were taking ‘upon the degree of a . . . Barrister without any design to practice the law’ during this period, not least because ‘admission to the bar served as a general qualification for a diversity of offices and activities in [. . . ] eighteenthcentury England’ (see Lemmings 1990: 58–60). In this case, I will be seeking to determine the extent to which such men, on finding themselves in court (as defendants or witnesses), found it easier to thwart the strategies of the primary examiners than, for example, lower-status participants. As with this investigation, then, my future studies will analyse the contributions of both the primary examiners and their respondents.
Notes
. In this and subsequent chapters, I will be using the abbreviation ‘EmodE’ as a useful means of signalling courtrooms, judges, defendants, juries, etc., that relate to (or who were active during) the period 1500–1760 in general, or the period covered by my data in particular (i.e. 1640–1760). . Verschueren’s (1997) use of perspective here is deliberate, for he believes that ‘pragmatics does not constitute an additional component of a theory of language’, and thus should not try to identify its own set of linguistic features in contradistinction with phonology, morphology, syntax and semantics’ (Verschueren 1987: 36). See Mey (2001: 8ff.) for a useful summary of the component and perspective views of pragmatics. . Cognitive linguistics, in the USA, ‘is concerned with the systematic relation between language and cognition, particularly as evidenced by mapping from one semantic domain to another, polysemies, and gestalt phenomena such as figure and ground’ (Schwenter & Traugott 1995: 243). . The Carrier text was one of twelve that I examined. The Salem Witchcraft Trials represent an infamous episode in American history that took place at the close of the 17th century (see Section 1.3 for a brief description of the data source, and Section 3.5.2 for a summary of Archer 2002 and related research). . It’s worth noting that the later pamphlets often claimed accuracy and completeness. Although technically untrue (see Kytö & Walker’s 2003: 230 work on the ‘interference’ caused by the production process itself), such a claim is important, not least because the published editions could be (and probably were) scrutinised by contemporary audiences that included many of the official participants (Langbein 1978: 265). . Kytö and Rissanen (1983) provide a useful account of American English in the Early Modern period. . Culpeper and Kytö (1999) present an interesting account of the multiple discourse levels present within the Wonderfyll Discoverie, and their effect upon its representation. . See http://www.oldbaileyonline.org/ for details. . French and Raven (1959) also identify ‘reward’ and ‘referent’ categories, which relate to A’s ability to control positive outcomes (by providing, helping to ‘provide, things that B desires, and to remove or decrease things that B dislikes’, and B’s identification with and desire to become more like A, respectively (see Spencer-Oatey 1992: 108). . Two exceptions to this statement are the Cross Cultural Speech Act Realization Patterns (CCSARP) project, and work at the pragmatics-cognition interface. The former is an example of a large-scale quantitative study involving seven different languages or language
Questions and Answers in the English Courtroom (1640–1760)
varieties and 1088 informants. Data was elicited by questionnaire (see Applied Lingustics Vol. 5, No. 3, and Blum-Kulka 1989). An example of the latter is Relevance theory (Sperber & Wilson 1992), which contents itself with brief constructed examples. . Cf. Halliday (1985) and Brazil (1995) who, for varying reasons, reject the assumption. . Both a negative particle and the enclitic n’t can be used to form a negative tag; not is placed after the pronoun, and n’t is attached to the operator – cf. ‘He likes his job, doesn’t he?’ and ‘He likes his job, does he not?’. . The intensifier, ever, is often added so as to emphasise the bafflement or emotional involvement of the speaker (Quirk et al. 1985: 817). . Interestingly, all three approaches deal with the analysis of interrogatives from the perspective of the question-answer relationship, but their focus is slightly different in each case. Hence, (i) categorial theories see the relation between interrogatives and answers as linguistic – with the result that syntactic expressions are given central importance, (ii) propositional theories see the semantic content of the answer as the crucial factor, and (iii) imperative-epistemic approaches see the pragmatic viewpoint as dominating. . According to Groenendijk and Stokhof (1984: 12), ‘treating the semantics of the two equivalently does not necessarily mean making them equivalent, but assigning them meanings which can be related to each other in a systematic way’. . Note how the explicit presence of both the semantic and epistemic elements within the paraphrase results in an embedding of interrogatives under a sequence of logical operators. . Katz and Postal (1964) also attempt to identify imperatives using a similar process, but with an imperative (I) morpheme. . Levinson (1983: 184) also postulates a disjunctive presuppositional analysis for the structure of yes/no questions, arguing the latter ‘generally have vacuous presuppositions, being the disjunction of their possible answers’. Leech (1983: 116), however, adopts a slightly different approach, stressing that ‘the free variable is in effect a gap in the sense of a proposition, and so a yes-no question is characterizable as a defective proposition, from which one specification is missing, viz the polarity sign pos or neg’. Although a departure from standard logic, he describes the addition of a positive operator as ‘reasonable’. . According to Lyons (1977: 762), a restricted wh-Q is one ‘in which the set of possible values for x [the wh-variable] is restricted to those that the speaker actually supplies in his question’. . The traditional test for identifying presupposition, the ‘constancy under negation’ test, has also been heavily criticised. For example, Lyons (1977: 768) points out that the assertion of a negative proposition (‘it is the case that not-p’) is not always equivalent to the denial of the corresponding positive proposition (‘it is not the case that p’), especially when those propositions contain a modal operator of possibility (cf. ∼nec p (‘it is not necessary that p’) and nec ∼p (‘it is necessary that not-p’)). This has led to a number of suggestions, including that the constancy under negation test be abandoned as the acid text of presuppositionhood (Karttunen 1973). . Both the semantic approach to presupposition and its pragmatic counterpart have their origins in the theories of Strawson (1950, 1952), Russell (1905) and Frege (1952).
Notes . ‘Context’, for Gazdar, consists ‘of a set of propositions, which are mutually known by the participants or which would be accepted as non-disputable facts’ (quoted in Riley 1986: 104). . Leech (1980: 325), in particular, points out the dangers of arguing for ‘every single direct statement’ to be seen as ‘an indirect statement’, and ‘every direct question [. . . ] an indirect question’ given the rarity of explicit performatives in actual discursive situations. And Stubbs (1983: 117) highlights the problems of assuming a “semantic equivalence” which fails to take account of stylistic considerations, counter-arguing that the presence of an explicit performative may actually change the speech act performed. He invites a comparison of the following examples ‘I hereby ask you whether you are going’ and ‘Are you going’, which, he asserts, ‘would not be intersubstitutable in the same social or discourse contexts and would have different responses’. . The use of constructed examples is now seen as problematic by many (see, for example, Geis 1995: 13), but the preferred practice in the 1960s seems to have been to rely on nativespeaker knowledge (i.e. to make judgements intuitively or through introspection (Searle 1969)) rather than substantiate any claims by using authentic linguistic evidence. Although I, too, recognise – and, indeed, will be highlighting some of – the limitations of using constructed examples, I stress the point here as a means of drawing attention to the changing fashions within linguistics. . Austin presented his ideas on speech acts in How to do things with words. The latter was published posthumously in 1962 (Austin died in 1960), and consists of a series of reconstructed lectures (known as the William James Lectures), which Austin delivered at Harvard University in 1955. Searle’s seminal work, An Essay on the Philosophy of Language (1969), develops Austin’s ideas, and is largely based on his DPhil thesis written ten years earlier. . Interestingly, explicit performatives came to be regarded as a specialised subset of all performatives. . Yet, Geis (1995: 13–14) believes the term ‘speech act’ may be misleading, pointing out that a soldier interested in volunteering for a mission, ‘might volunteer by taking a step forward or raising an arm, or by saying I’ll do it, or, I’ll volunteer. Clearly, in stepping forward or in raising an arm, the soldier performs essentially the same act as s/he would perform in saying I’ll do it or I’ll volunteer’ (for similar criticisms, see Levinson 1983: 291; Schegloff 1984: 266–296). . As previously highlighted, the use of illocutionary point is what made Austin’s analysis of Commissives ‘clear and unambiguous’, in Searle’s estimation (Searle 1976: 8). . Indeed, Mey (2001: 104) believes that ‘speech act theory, even though in name and pretension a theory of action, in reality is a philosophical theory of, or about, propositions’. . Thomas (1986: 16) provides interesting examples of such multifunctionalism, as when A asks B ‘are those your filthy socks decorating the bathroom floor’, which is ambivalent between a request/order to move the socks and a complaint/reproach to H for his inconsiderate behaviour). . Indeed, Sinclair and Van Gessel (1990: 942) maintain that the difficulty which researchers have previously had in identifying the relations between form and function is a
Questions and Answers in the English Courtroom (1640–1760)
result of “naïve view-points of the function(s) of utterances”, and not from problems related to analysing form (1990: 942). . The constraint seems to be an expectation that the question will receive an answer, though precisely what it is about an utterance/question that sets up this expectation is not discussed. . Coulthard and Brazil (1981: 97–98) propose an alternative I R/I R analysis of the threepart teacher/pupil exchange, where the second move constitutes both a response and an initiation (cf. Stubbs 1983: 137). . The reader may be interested to know that Moeschler (2001) has now rejected his discursive approach to conversation in favour of Relevance Theory, because of the apparent ‘inability’ of the former to account for the two aspects of discourse, namely sequencing and interpretation. . These instances included ‘side-dialogues’ and ‘summaries’, which accounted for 23% of the civil proceeding discourse that Stenström (1984) analysed. . The fact that ‘suspects often produce behaviour which is appropriate to their interactional goals but not in respect of their situational role’ leads Riley (1986: 258) to conclude that we need to distinguish ‘between appropriate norms relative to speakers’ goals and those relative to subject positions’. . Thomas (1986) provides a useful summary of the two goal-sharing views relating to Grice’s (1975) Cooperative Principle (linguistic goal-sharing and social goal-sharing). . The thematic condition is satisfied when the R-move is semantically related to the Qmove (implicitly or explicitly). The condition of propositional content is satisfied when the R-move is semantically related to the Q-move by way of one of the following semantic relations: paraphrase, opposition, or implication. The illocutionary condition is satisfied when the R-move has an illocutionary type compatible with the Q-type. The condition of argumentative orientation is satisfied when the R-move has the same argumentative orientation as the Q-move (see Moeschler 1987: 249). . Ellegård (1953) is regarded as the most important early study on the origin and development of do-periphrasis, but other early studies worthy of attention include Langenfelt (1933), Engblom (1938) and Dahl (1956). The reader might also wish to refer to Tieken (1985, 1986, 1987, 1989, 1990), Stein (1985, 1986, 1990), Denison (1985), Nevalainen (1987), Kroch (1989), and Rissanen (1985, 1991). . According to Bourcier (1981), the spread of inflexional weakening and the increasing reliance on word-order contributed to the establishment of S-V-O word order. . Rissanen (1999: 274) goes on to explain that ‘this distribution pattern is based on the weight of the subject: when the subject is an emphatic pronoun or consists of two coordinated pronouns, the order is the same as with a nominal subject [e.g. ‘Shall not thou and I . . . compound a Boy . . . (Shakespeare Henry VV.ii)]’. He also suggests that ‘the placement of not between the verb and the pronominal subject may reflect the gradual development of the enclitic [nt] in spoken language’, which becomes increasingly popular throughout the 17th- and 18th centuries.
Notes . Rissanen (1999: 244) suggests that the slower development of do-periphrasis in whquestions may be due to the fact that the object is often the initial interrogative pronoun (‘What sayest thou, Jack?’), ‘so that the problem of post-verbal subject + object sequence does not occur’. . The most popular modals in Shakespeare are shall and will. Shall accounted for 80 of the 298 modals found in questions, and 14 of the 66 modals found in answers. Will accounted for 125 and 31 respectively (Wikberg 1975: 110). . The negative statement + negative tag does not occur in either Wikberg’s (1975) or Salmon’s (1966) Shakespeare corpus. . As Wikberg (1975: 42–45) believes that Shakespeare exploited the material in contemporary handbooks on rhetoric, he explains rhetorical questions by drawing upon Quintilian’s distinctions between questions that ask (i) for emphasis, (ii) what cannot be denied, (iii) a question to which it is difficult to reply, (iv) to excite pity, (v) to embarrass, (vi) to express indignation etc., and answers that (a) answer another question, (b) make defence precede confession, and (c) serve to raise a laugh, etc. . According to Wikberg (1975: 162), the factual/logical distinction is best seen as ‘a scale rather than either/or’. . For example, the inversion occasioned by the use of marry and indeed in EmodE which is no longer possible today. . I use ‘story’ to indicate that barristers are not aiming to establish ‘truth’ in the literal sense but, rather, to establish facts which support their client’s version of the truth. . Questions are not the only marker of asymmetrical discourse to be worthy of study, of course. Indeed, Thomas (1986: 1) highlights a number of pragmatic features, including illocutionary force indicating devices (IFIDs), metapragmatic comments, ‘upshots’ and ‘reformulations’. As Chapter 11 highlights, IFIDs seem to be especially characteristic of courtroom interaction that is overtly confrontational (see, in particular, Sections 11.6 and 11.7). . In the majority of cases, the three magistrates will probably be “lay” persons from the local community rather than professional judges or lawyers. However, an increasing number of “stipendiary” magistrates – paid magistrates who are qualified lawyers – are becoming active in such courts. . Danet et al. (1980: 223), for example, identify further features of ‘coerciveness’, including (falling) intonation, negation and illocutionary ambiguity. . A fact that supports Luchjenbroers’ (1997: 482) claim that restrictive yes/no questions can provide barristers with maximal control over the content of witness replies. . Surviving records seem to suggest that such interventions not only took place, but were acceptable to the bench, even though they led to a certain amount of chaos (Beattie 1986: 344). . According to Beattie (1986), the ‘prosecutor’ role was not usually adopted by a professional during the EmodE period (but see Chapter 6). . A lay magistrate (or Justice of the Peace) determined who would appear as prosecution witnesses at a pre-trial committal proceeding (Langbein 1999: 315).
Questions and Answers in the English Courtroom (1640–1760) . Nowadays, recorders are part-time judges, which means that many tend to carry on their barrister duties when not acting as a judge. . The whole procedure was much quicker than it is today. Langbein (1978: 274–276, 282) and Beattie (1986: 376–378) offer several explanations as to why this was the case, including (i) many cases were heard at one time by the same judges and jury and the verdicts were given at the end, (ii) many of the jurors were veterans of the procedure, having been involved in prior jury service, (iii) what lawyers now do remained undone (e.g. there was no opening statement, or assertion of what was going to be proved against the prisoner), and (iv) the prosecution evidence was presented directly and briefly, with the judges keeping the witnesses to the narrow track of evidence that related to the issue at hand. . See Beattie (1986: 346) for a colourful example of a judge supporting a prisoner. The case involves a prostitute accused of robbing one of her clients, and in some ways typifies the instances when prisoners were treated more favourably because the ‘victims’ were judged to have brought their misfortune on themselves. . In Law, a recognizance is ‘a bond or obligation entered into and recorded before a court or magistrate by which a person engages himself to perform some act or observe some condition (as to appear when called on, to pay a dept, or to keep the peace); also, a sum of money pledged as a surety for such performance and rendered forfeit by neglect of it’, OED. . Such a belief is largely based on the question that judges frequently asked defendants after the prosecution had finished giving its evidence – ‘what do you have to say for yourself?’. As evidence for this view, Beattie (1986: 349), highlights one judge’s follow-up comment to a defendant’s response of ‘I am no thief ’ to his initial question: namely, ‘You must prove that’. . Langbein (1978: 312), for example, has found ‘unmistakable instances of lawyers examining and cross-examining for the defence’ in the Old Bailey trials of 1734–1735. . Titus Oates joined forces with Israel Tonge to invent the story of the ‘Popish Plot’. Although Oates had a history of falsification (he lied about his ordination as an Anglican priest, for example), the ‘Popish Plot’ was made more ‘believable’ by two factors: (i) some ‘treasonous’ letters that Edward Coleman had apparently sent to the French Jesuit, François La Chaise, and (ii) the untimely death of Sir Edmund Berry Godfrey, the judge to whom Tonge and Oates had first told their story. Godfrey’s death was attributed without evidence to the Catholics, leading to an upsurge in anti-Catholic hatred. . The most widely cited text in the second half of the 18th century was Sir Geoffrey Gilbert’s, The Law of Evidence. It was first published in Dublin in 1754, but must have been written much earlier as Gilbert died in 1726 (cited in Beattie 1986: 363n120). . Culpeper and Kytö’s (2000a) methodology is worth mentioning here, as they attempt to ensure a stable basis for comparison by matching utterances according to certain criteria (i.e. gender and/or status). Consequently, although the speech contributions are low, they are potentially more representative than studies that do not pay attention to such contextual factors. . Doty and Hiltunen (2002) also highlight the additional ‘evidence’, which was provided by the accusers at Salem (e.g. the calling out, crying, violent physical reactions), and suggest that the accused quickly surmised the importance of cooperating with the accusers (especially given the fact that the latter’s ‘torment’ often ceased once the accused ‘confessed’).
Notes . Drama consists of imaginary constructed dialogue, whereas trial proceedings are the supposed record of a prior speech event. . EAGLES seeks to survey dialogue annotation practices and produce a set of guidelines. For furter details, see their website at http://www.ling.lancs.ac.uk/eagles/. . This work was made possible by a grant awarded to Dr. Culpeper by the British Academy (SG-350252). . Of course, some limited contextual information is provided in the text file headers of corpora such as the Helsinki Corpus of English Texts. This typically includes information such as the age of the text, who wrote it, and its genre. . We are aware that some may find our decision to define rank in terms of income potentially problematic, as incomes will have changed over our period. In our defence, incomes do not appear to have dramatically changed (Hunt 1996). Even so, we do not base decisions regarding status on income alone. . ‘Individual circumstances varied, but at the bare minimum an urban householder in the eighteenth century needed £50 to £80 a year to sustain a lifestyle and a level of “independence” commensurate with middling status’ (Hunt 1996: 15). . Our first three role fields are inspired by the work of Jenny Thomas. . Needless to say, what constitutes the occupational role (of, say, ‘doctor’) can change over time. Also, in the case of high-status titles, note that we would not consider a title alone used as a vocative. Thus, ‘sir’ in ‘Sir Credulous’ gives us a reasonable indication that he is of gentry status, but ‘sir’ alone used by one individual to address another provides no reliable indication of status. . Nevertheless, Allan (2000) believes that the differing perspectives of the SA theorists (e.g. Austin 1962; Vendler 1972; Searle 1969; Bach & Harnish 1979; Allan 1986) share more similarities than they do differences (for a summary of these similarities, see Allan’s compilation of the different theorists’ definitions of specific speech act verbs like ‘assert’). . As Table 5.5 indicates, Bach and Harnish identify two further categories, effectives and verdicatives. However, as they are ‘not communicative’, they tend to treat them separately (1979: 40). . As the various form values reveal, I make use of single lexical items and multi word expressions (i.e. ‘what’, ‘who’, ‘how come’, ‘why did not’, etc.). . Overlap between the form values (i.e. Do you know where . . . , do you remember how . . . ) was extremely rare in my data, making categorisation relatively straightforward. When overlap did occur, I tended to treat such questions as polar interrogatives, for categorisation purposes. . I am indebted to Dr. Graeme Hughes for not only his PERL program, but his patience while I made the necessary amendments to my scheme and whilst teaching me the finer points of XML programming! . The fact that our software program utilises a web interface meant that we had to produce an xml-version of each text, and thus had numerous opportunities to check (and correct) errors.
Questions and Answers in the English Courtroom (1640–1760) . It is worth noting that researchers working primarily within the area of computational linguistics are now highlighting the importance of distinguishing ‘between . . . statistical significance and practical significance’ (Rayson 2003: 155). Put simply, they argue that something that is statistically significant (for example, the ‘fact’ that Research Assistants in the Computing department at Lancaster University use 5% less adjectives than Research Assistants in the Linguistics department) might not be practically significant, that is to say, it might not tell us anything about the style of writing adopted by the two disciplines as a whole (example provided by Rayson 2003, in email communication). . Notice that, although the negative polar interrogative was utilised as much as the declarative question in the SPC overall (i.e. on 93 occasions), its frequency in the different subperiods exhibited greater variance than the declarative question (i.e. between 2.5% and 5.5% as opposed to the declarative question’s 4.3% to 5.6%). . The terms ‘request’ and ‘require’ as used here denote the macro-categories which capture ‘neighbouring speech acts’, that is to say, the speech acts that interface with one another (cf. Jucker & Taavitsainen’s 2000: 70 notion of ‘pragmatic space’). This means that some ‘requires’ may have the force of an ‘entreat’, whilst others have the force of a ‘command’. . It is also worth noting that the two ‘requests’ were utilised by defendants, and the ‘require’, by a prosecution lawyer. Moreover, although prosecution and defence lawyers did utilise whether-constructions with the force of a request, they were addressed to the judges (for an interesting discussion on indirectness in discourse, and its relationship to power, see Tannen 1981, 1986). . As explained in Section 4.4.2, S utilises an ‘inform’ when s/he wants to communicate something (about X) to A, and utilises a ‘question’ when s/he wants A to provide a missing variable by saying/confirming/clarifying something about X (X = an action/event/behaviour/ person)). . Two polars, four indirect polars, and six wh-interrogatives were used in Period 3; seven polars, thirteen wh-interrogative, one negative wh-interrogative, one disjunctive interrogative, and nine indirect polars were used in Period 4; one negative polar, sixteen wh-interrogatives, and twelve indirect polars were used in Period 5. . The remaining three were addressed to fellow witnesses (the reader should note that these ‘questions’ are discussed in detail in Chapter 10). . Walker (1987: 60) believes that even ‘re-questions’ (e.g. ‘Can I ask you . . . ’ questions) are better understood as commands, because, whereas in ordinary conversation the hearer has the option of withholding information ‘by answering the first part . . . (No, you may not ask) or by evading, or responding negatively to the second part (No, I will not tell X)’, the force of the hidden imperative may not be ignored in the context of a courtroom (cf. Danet et al. 1976: 5, who prefer to categorise such questions as ‘requests for information’). . Piazza (2002) does not deal with the courtroom specifically. Yet, she proposes a useful way of approaching conducivity, i.e. ‘a pragmatic, hearer-oriented model of conduciveness which considers the assumptions underlying a question and which views the hearer’s response as an integral part of the picture’ (Piazza 2002: 511–512).
Notes . Francia’s indictment had not taken into account that he was ‘an Alien’, and ‘if an Indictment for Treason be against an Alien, it must be charged against his Allegience in general but not against his natural Allegience’ (Trial of Francis Francia, 1716). . Fox (1870: 586) confirms the activity of the defence counsels at this time. For example, with respect to Edmund Saunders (the defence lawyer for John Giles), he says that he was ‘sometimes to be found acting for the defence in government prosecutions – as for Mr. Price in 1680, when indicted for attempting to suborn one of the witnesses to the Popish plot; and for the five Popish lords charged with high treason, of whom only Lord Stafford was tried’. . Notice, also, that the ranking for the most active questioners differs from the ranking for the most active participants (see Table 5.4 above). The most striking omission is the witnesses, of course, but the Courts’ ranking is also significantly different (e.g. 1st as opposed to 6th). . The Period 5 result may be partially skewed by the way in which EmodE trials were recorded, as the court scribes (or reporters) did not assign judges a (direct) speaker role in two of the trials: the Trial of William Baker (1751) and ‘The Tryals of two Causes between Theophilus Cibber, Gent. Plaintiff, and William Sloper, Esq. Defendant’ (1739). By which I mean, there are no instances of judges verbally addressing utterances to another courtroom participant. Indeed, the scribes even chose to inform us that the judges ‘summed up the Evidence’ for the juries before asking them to retire to consider their verdicts, rather than record what was actually said. This is an important reminder that, although the scribe is meant to produce a verbatim transcript of the courtroom proceedings, ‘it is seldom a real word-for-word’ and thus complete transcription of the oral event (see 1.3, and also Tiersma 2000: 175–179). . The trials are Connor Lord Macguire, 1644; Mary Moders, 1663; Edward Coleman, 1678; Mr. Bartholomew Greenwood, 1740; and the Court-martial of Captain John Ambrose, 1745. . Giles was accused of a ‘Barbarous and Inhumane Attempt to Assassinate and Murther John Arnold Esq; One of the Justice of Peace for the County of Monmouth, and now a Member of the Honourable HOUSE of COMMONS’, and Cellier, of ‘writing, printing and publishing a scandalous libel called, Malice defeated &c.’. . Jeffries also utilised 21 polar interrogatives, 11 declarative questions, 1 negative polar interrogative, 1 alternative question and two tag questions, making a total of 80 questions in total. . As established in Section 3.3.1, a leading question (prototypical examples of which are the negative polar, the declarative question and the tagged declarative) is one that suggests – and tries to lead the respondent to – a ‘correct’ answer. . Jeffreys’ second tag was addressed to Elizabeth Crook (a chambermaid), and was opposite in polarity (e.g. ‘You made the Bed, did not you?’). Consequently, it functioned as a ‘checking’ tag (Biber et al. 1999: 209). As highlighted in Section 2.2.1, the primary function of tagged declaratives is not to elicit information from the addressee but, rather, agreement or confirmation (Biber et al. 1999: 208). The reader will not be surprised to learn that both tags were therefore confirmation-seeking.
Questions and Answers in the English Courtroom (1640–1760) . In contrast to the Court, the other main judicial examiners (the judge and the recorder) were (relatively) inactive. Indeed, recorders were not present in any of the trial texts relating to Period 5. Not that presence alone guarantees strong participation, for the Period 5 judges were only the sixth most active participants/fifth most active (re)initiatiors in Period 5, in spite of their presence in all five trials. . The two remaining (re)initiations had the force of a ‘require’ (x2). The Courts also utlised 1 inform, making 243 utterances addressed to witnesses in total. . Like their Period 3 and 4 counterparts, the period five judges’ most popular interrogative was the wh-interrogative (of the 21 questioning moves that Period 5 judges addressed to witnesses, 12 contained wh-interrogatives and 8 contained polar interrogatives). . I anticipated that this use of ‘follow up-initiations’ would be a characteristic of a primary examiners’ interaction, and was therefore surprised to find that the defendant in the Court-martial of Ambrose (1745) also utilised a high percentage of ‘follow up-initiations’ when interacting with witnesses (see Chapter 9). . The Period 3 Courts had more in common with the judges than the Period 5 Courts. That said, the Court in the trial of Mary Moders (1663) did utilise a small number of polar and wh-interrogatives with a querying or clarifying force, addressing them to the principle witness for the plaintiff, Knot, and the plaintiff himself, John Carleton Snr. For example, Knot claimed that he had given Mary away to her “first” husband, Thomas Steadman, and the Court responded by asking, ‘You gave her in marriage, but did the Minister give her to her husband then?’. . The Period 4 recorder addressed 6.1% (or 7 out of 114) of his utterances to the defendants, 4 of which had a ‘questioning’ force. The Court in the Court-martial of Ambrose (1745) addressed two of their 349 utterances to defendants. Neither had the force of a ‘question’. . Judges also utilised 5 wh-interrogatives, 5 declarative questions, 3 alternative questions and 3 rhetorical questions when interacting with defendants. . It is worth noting that nine of the questions that judges addressed to witnesses also contained multiple interrogatives. However, they tended to be information-seeking rather than rhetorical. . Nevertheless, the omission (and, indeed, the scribe’s switch to a narrative account) highlights a problem with the trial texts in general, that is, the representativeness/accuracy of the supposedly verbatim accounts. . Langbein (1978) likens judicial questioning at this time to modern continental courtrooms. . The four trial texts are the Trial of Connor Lord Macguire (1644), the Trial of Charles I (1649), the Trial of Slingsby, Hewet and Mordant (1658), and the Trial of Edward Coleman (1678). . The presence of the prosecution counsels may be explained by the fact that the SPC contains several treason/State trials, and, in contrast to ordinary trials, the case for the Crown in such trials was commonly put by the attorney general, assisted by other counsel, from as early as the Tudor period (Beattie 1986: 42; see also Section 3.4.1)
Notes . A further 3 utterances were classified as problematic. . Other addressees included the ‘injured party’ (to whom they addressed 14 or 6.3% of their utterances), and other prosecution and defence counsels (to whom they addressed 1 utterance each), making a total of 224 utterances in total. . The trial texts are the Tryal of Christopher Layer (1722), Theophilus Cibber versus William Sloper (1740), the Trial of Mr. Bartholomew Greenwood (1740), and the Trial of William Baker (1751). . These were John Giles (1680), Thompson, Farewell and Pain (1682), Ambrose Rookwood (1696), Francis Francia (1716), Layer (1722), Cibber versus Sloper (1740), Greenwood (1740) and Baker (1751). . According to the trial data relating to Period 4 and 5 (1680–1760), the prosecution counsels began the examination of witnesses in the EmodE courtroom, as they do in today’s court. However, members of the prosecution team tended to share the questioning of witnesses (e.g. ask the same witness questions in the same examination sequence). . A ‘side-bar conference’ is a brief session between the lawyers and judge out of hearing of the jury. . Loftus (1975) asked one group of people whether they got headaches frequently, and another group, whether they got headaches occasionally. The first group reported an average of 2.2 headaches a week, the second group an average of 0.7 headaches a week. . Landsman (1990: 521) suggests that this type of behaviour, especially, ‘is the clearest demonstration of a break with the days when the court was the primary enquirer and ‘a due Regard [was to] be shewed to those in Authority’ [OBSP Aug. 1727]. . The Lord President did not appear to appreciate the inference (that he was taking away the defendant’s liberty). He answered curtly: ‘It is visible who are your Judges, they are named by Act of Parliament: We are your Judges’. . According to Langbein (1999: 320–321), the government of the early eighteenth century introduced a scheme whereby they offered monetary rewards for the successful prosecution of offenders who committed certain ‘serious’ crimes. The system led to the development of a corps of reward-seeking ‘thieftakers’ who were largely mistrusted by the public-at-large. . The figures in square brackets reveal the number of ‘answers’ that were elaborated in some way. . Note that 86.4% (i.e. 165) of the witnesses’ 191 utterances were responses in Period 3, 89.9% (i.e. 491) of the witnesses’ 547 utterances were responses in Period 4, and 95.6% (i.e. 780) of the witnesses’ 816 utterances were responses in Period 5. . This is not to say that wh-interrogatives always received an ‘identify’-type answer. Indeed, some wh-interrogatives received an ‘imply’-type answer, that is to say, the requested information could be inferred, but it was not provided explicitly, as in the following: ‘How came you to talk of a Non-conformists Plot? It was only common Discourse as it was at Coffee-Houses’. Witnesses also ‘answered’ a small number of wh-interrogatives with ‘disclaims’ (i.e. they verbally responded to Q to establish their inability to provide the requested information): ‘Mr. Gadbury, What do you know concerning this Plot? I know nothing of
Questions and Answers in the English Courtroom (1640–1760)
it, neither one way, nor another’ (both interactions involved the same participants, the Lord Chief Justice and Mr. Gadbury, and came from the same trial, that of Elizabeth Cellier, 1680). . Two of his eight answers to the prosecution counsel and one of his four answers to the judge emphasised that he had heard/thought he had heard Mordant say X, whilst one answer each to the prosecution counsel and judge emphasised that much of their discourse occurred when ‘there was none but him and [=Mordant] by’ (making his evidence unverifiable). . The fact that the recorder found the ‘disagreement’ amusing may suggest, in turn, that such interactions/interjections were ‘atypical’. . Although one could argue that the ‘accused’ attempted to do the same when questioning the prosecutor and other witnesses, evidence suggests that it was the judge who actually gleaned the evidence. . As explained in Section 7.6, witnesses were asked questions about evidence they had previously given in a deposition, which was read to them prior to the questioning proper beginning. . A reward system was implemented by the government in the 1720s as a means of increasing/securing criminal prosecutions, but it was abused by a minority who used the opportunity of making money. Indeed, some became ‘professional’ thieftakers (see Langbein 1999). . Charles’ hesitancy is understandable, given the fact that he learned of the actual charge on the first day of his trial. . The Attorney General’s outburst was occasioned by an exchange between the Lord President and Dr. John Hewet, in which the latter makes reference to an ‘Act of Parliament’ being used to try him that, in his opinion, was unsuitable because ‘one hundred and fifty’ Members of Parliament had not been ‘permitted to sit’ when it became law. Moreover, Prideaux immediately followed up his entreaty to the judge with a second ‘express’, which he addressed to Hewet. The second express – ‘Your words they are seditious’ – had the force of a ‘criticise/censure’ (e.g. express disapproval about and/or declare a person/action to be wrong). . Although the judge was referred to as ‘Lord President’ in the trial text, the trial occurred during the Interregnum, so it is highly unlikely that the judge was higher than 1 (see Section 4.3.4). Even so, he is given a status of P (signifying problematic) in Appendix 1 (see ID classifications for the Trial of King Charles). . It was examples of judicial benevolence like that enjoyed by Mordant that led many contemporaries to claim that the English courts were exceptionally humane (Section 3.4.1). In practice, however, these instances appear to have been rare. Indeed, Mordant’s codefendants, Hewet and Slingsby, were found guilty, and promptly sentenced to death. . Thomas (1986: 200) found that subordinate speakers in her modern data were only prepared to use IFIDs when they were ‘certain of not being challenged or of being able to withstand a challenge should it occur’. . Schlieben-Lange (1976) initially investigates dictionaries to find out about the kind of performative and speech act denoting verbs. She then examines the texts to see how speech acts are executed and accepted. Finally, she examines other sources to determine the form/function of speech acts in other social contexts.
Notes . The primary examiners’ interaction with defendants amounted to very little when compared with their interaction with witnesses. Indeed, the judges were the only participants to ask questions of defendants to any marked degree. The bulk of their interaction, however, involved eliciting devices other than questions or, alternatively, the judges informing rather than seeking information from the defendants. . A strength of my taxonomy, of course, is that I can identify form and function simultaneously, that is to say, the lexical, grammatical and prosodic aspect and the speech act aspect. . The reader should note that I regard any taxonomy of questions (even one which accounts for form, force and interactional intent) to be of little analytical use unless attention is also paid to important contextual factors such as the ‘roles’ adopted by the participants, and thus their ‘power/lessness’. Consequently, I see the Sociopragmatic annotation scheme (Archer & Culpeper 2003) as a necessary – as opposed to complementary – component of the taxonomy I have developed. . For example, whether ‘so called assertive questions’ (i.e. non-interrogative ‘utterances that can be interpreted as questions’) were ‘more common’ in spoken texts, as Rissanen (1997: 275) hypothesises. . Another field that we might like to consider for the drama texts, in particular, is that of an ‘overhearer’ (i.e. when character A ‘communicates’ to character B and is overheard by character C). . The barrister in question (Henry Hutton) had written a letter to a potential witness seeking alibi evidence.
Appendix 1
Details of the SPC trials
ID classifications for Macguire (1645) Trial Court Old Bailey Charge Rioting / enticing rebellion in Ireland (treason) Outcome Found guilty. Petition rejected. Executed – February 20th ID
Participant
S3tmacgu001 Connor Lord Macguire, the prisoner S3tmacgu002 Mr. Justice Bacon S3tmacgu003 Sergeant Whitfield S3tmacgu004 M. Nudigate S3tmacgu005 S3tmacgu006 S3tmacgu007 S3tmacgu008 S3tmacgu009 S3tmacgu010 S3tmacgu011 S3tmacgu012 S3tmacgu013 S3tmacgu014 S3tmacgu015
Sir William Steward The Court Lord Blaney Lady Calfield Mrs. Mary Wordrose Walter Gu’for Sir Francis Hamilton Sir Charles Coote Gentlemen of the Jury Kings Counsel Sir John Clotworthy? (see Hargrave, Vol. I, p. 950) S3tmacgu016 Mr. W. Prynne, Esq. S3tmacgu017 another ‘Layer’ (= lawyer)
Additional info In previous court session, put in ‘plea of peerage’. Described as ‘Baron of Enniskillen’ by Hargrave NOT Francis Bacon See Biographical details (following)
Title of honour Member of House of Commons See Biographical details (following) Probably Bradishaw
Occupation
Judge Sergeant Roll –
Status Role Age 0
D
X
1 2 2
J V SR
9 8 8 (age 42) b. 1602 X X X X X X X X X X X
1 Legal Profession X 0 0 X X 1 1 X Senior barrister 1 1
W O W W W W W W L KC ON
Kings Sergeant 1 at Law Legal profession 1
SL V?
9 (age 45) b. 1600 8 (age 42) b. 1602
Note. Trial date was Feb. 10 1644, according to Hargrave (Vol. I, p. 950). Plot related to a siege of Dublin Castle, and the ‘securing or murdering the Lords, Justices and Council (see Hargrave, Vol. I, p. 950). Plot was detected, and Macguire fled in disguise. He was apprehended by John Woodcock, one of the Sheriffs of Dublin, and brought before Lords Justices and Council, where he made ‘some sort of confession’. He was committed prisoner to the Castle 23rd October 1641. 12 June 1642, he was sent to England, where he was imprisoned until 18 August, when he made an escape bid. However, he was re-captured on 20 October. After the indictment, he pleaded the Statute of Magna Charta – 10 Feb. 9. Hen. III. That none should be condemned but by Trial of his peers, and pleaded the statue of 10 Hen. VII. That all the statutes made in England should from thenceforth be in force in Ireland (footnote, Hargrave, Vol. I, p. 950).
Questions and Answers in the English Courtroom (1640–1760)
ID classifications for Charles I (20–27 January 1649) Charge High Treason Trial court High Court of Justice, Westminster Hall Outcome Executed ID
Participant
Additional info
Lord President – Not a real judge (see given this title for below) this trial (but also used elsewhere during Interregnum) s3tcharl002 King Charles See Biographical details (following) s3tcharl003 People in the Hall s3tcharl004 Mr. Cooke See Biographical details (following) s3tcharl005 Clerk of the Court Clerks were often barristers, or trained in the law s3tcharl006 Sergeant at Arms Parliamentary court officer with ceremonial duties s36charl007 Crier s3tcharl008 Person in crowd s3tcharl009 Malignant lady s37charl010 Guard
Occupation
s3tcharl001
King of England
Status Role Age P
J
9 (age 45) b. 1602
0
D
X Solicitor General 1
ON V
Court Clerk
N
9 (age 49) b. 1599 X 8 (age 39) b. 1609 8
Sergeant at Arms 2
SA
8
Crier – – Guard
CR ON ON NG
8 X X 8
2
4 X X 4
Note. Bradshaw was not a ‘real’ judge in the strictest sense, but was assigned that role here. Two commissioners that Bradshaw had chosen to assist him in points of law sat either side of Bradshaw – their names were William Say and John Lisle. There were two Clerks – Phelps and Broughton. There were also a number of other commissioners present throughout the trial (46+). See Hargrave (Vol. I) for names.
Appendix 1. Details of the SPC trials
ID classifications for Slingsby, Hewet and Mordant (25 May 1658 (S.) and 1 June 1658 (H. and M.) Charge High Treason (against L. Protector and Commonwealth) Trial court High Court of Justice, Westminster Hall Outcome Slingsby & Hewet given death penalty. Mordant acquitted ID class
Participant
S3tsling001 Lord President (Title only used during Interregnum) S3tsling002 Sir Henry Slingsby, defendant
Occupation
Additional info
Judge
Either Cooke or John P Lisle (see Hargrave, Vol. II, pp. 277–301) Described as ‘knight’ by 1 Hargrave (see Vol. II, p. 278). Very critical of court’s set-up (e.g. court being both judge and jury). Has grown-up son 2 Attorney General from 1 April 1649 . . . see Biographical details Command of a company, 1 and of the South-Block House
Member of Parliament
S3tsling003 Mr. Phelps Clerk to High Court S3tsling004 Mr. Attorney General Legal profession – Edmund Prideaux Barrister S3tsling005 Mr. Ralph Waterhouse
S3tsling006 Capt. John Overton S3tsling007 Lieutenant George Thomson S3tsling008 Dr. John Hewet, defendant S3tsling009 Mr. Sol. Ellis
S3tsling010 The Court
S3tsling011 Mr. John Mordant, Esq., defendant
S3tsling012 John Stapley
Commissioned officer (major). Assuming seniority achieved over time – hence age value Officer at Hull for approx 10 years
Lieutenant to Major Waterhouse Doctor (D.D.) – doctor of Describes himself as a divinity/ Clergyman freeman of England, ‘by birth’ (see H, 2L 286) Solicitor General. See Biographical details (following) In this trial, acted as both Judge and Jury – made up of two or three persons Note – using 1 because of use of Esq. Referred to as ‘young gentleman’ (p. 42) – hence age value Insufficient evidence given re potential status
Status Role
Age
J
9 (a. 49)
D
9
N X V (for 9 (born Crown) 1610s) W
9
2
W
8
2
W
8
2?
D
X
1
V
9 (age 49) b. 1609
X
O
X
1
D
8
X
W
X
Note. Sergeant Maynard also present at this trial, but does not figure in the extract. Slingsby accused of attempting to stir up mutiny in the Kingston upon Hull garrison on behalf of Charles Stuart.
Questions and Answers in the English Courtroom (1640–1760)
ID classifications for Harrison, Waller, Heveningham, etc. (October 1660) Charge Treason Trial court Hick’s Hall, in the County of Middlesex Outcome Harrison and Peters executed (Harrison on 13th October, Peters on 16th October – see Hargrave, Vol. II, p. 323 & 413 respectively). Marten, Millington, Tichborn, Roe, Lilburn convicted of ‘conspiring and imagining the death’ of Charles I (see Vol. II, p. 396). Excerpt dealing with all the trials (and convictions) of the following found in Vol. II, pp. 307–414 – as part of the ‘Trial of the 29 Regicides’). ID
Participant
Additional info
S3tharri001 S3tharri002 S3tharri003 S3tharri004
Crier (Hart) Sir H. Waller Judge Clerk of the Crown Edward Shelton, Esq.
Crier Defendant Judge – legal profession Clerk – legal profession
S3tharri005
(Colonel) Thomas Harrison, defendant
Late major general. Judge
S3tharri006
Henry Heveningham, defendant
S3tharri007
Henry Martin, defendnat
S3tharri008
Gilbert Millington, defendant
Described as William Heveningham by Hargrave (Vol. II, pp. 307–414) Signed and sealed precept for summoning the Court, and warrant for execution; sat almost every day, including the day of sentence. See Hargrave (Vol. II, p. 392) for his trial Later changed plea to guilty. See Hargrave (Vol. II, p. 393) for trial
S3tharri009 S3tharri010
Their Lordships Robert Tichborn, defendant Owen Roe, defendant Robert Lilburn, defendant
S3tharri011 S3tharri012
S3tharr013
Hugh Peters, defendant
Occupation
Described as “knight” Described as “esq” (Hargrave, Vol. II, p. 303) – one of judges that signed death warrant of Charles I
Judges
Eventually pleads ‘ignorance’ (Hargrave, Vol. II, p. 394) Accused of stirring up soldiery (Hargrave, Vol. II, p. 357). Has grown-up daughter (Hargrave, Vol. II, p. 414)
A minister of religion
Status
Role
Age
X 1 1 1
CR D J N
X 9 9 X
1
D
9
X
D
9
X
D
9
X
D
9
1 X
J D
9 9
X X
D D
9 9
2
D
9
Note. No defence council. Lord Chief Baron – Mr. Justice Foster, Attorney General – Sir Geoffry Palmer, Solicitor General – Sir Heneage Finch.
Appendix 1. Details of the SPC trials
ID classifications for Moders (4 June 1663) Charge Bigamy Trial court Sessions House, Old Bailey Outcome Not guilty ID
Participant
Additional info
s3tmoder001 Clerk of the Peace Responsible for preparing indictments and keeping a record of proceedings at the Sessions of the peace s3tmoder002 Mary Moders, Born in Cullen, Germany. Accused The prisoner of bigamy. Denied the claim, saying [=defendant] that they were a means of husband and father-in-law gaining access to her fortune. The fortune, her identity/age (and therefore status) all seem to be in dispute s3tmoder003 Moders’ husband John Carleton: note, described as “Gent.” & “young Lord”. Latter seems to be used in a satirical way s3tmoder004 James Knot Stedman’s shop-mate (alleges Stedman to be Moders’ 1st husband) s3tmoder005 Jury s3tmoder006 Court = judge and jury; see especially end of text, when witnesses addressed utterances to “My Lord”, but the “Court” responds s3tmoder007 William Clark Insufficient info to ascertain status
Occupation Status
Role
Age
Legal profession
2
N
8
P (= status in dispute).
D&G
8 (age is disputed but claims to be 21)
1
E
8 (default)
4
W [pros] 8
X X
L O
X
(Kentish) shoemaker
Legal profession
X X
s3tmoder008 Carlton the Elder John Carleton’s father s3tmoder009 Sarah Williams Insufficient info to ascertain status
1 X
s3tmoder010 John Carlton’s brother s3tmoder011 Mr. Smith s3tmoder012 Judge Howel
1
W [pros] 8 (default) U 9 W [pros] 8 (default) W [pros] 8
2 1
W J
X
W [for def] W [def] W LF
s3tmoder013 Elizabeth Collier s3tmoder014 Jane Finch s3tmoder015 Mr. Baley s3tmoder016 Foreman of the jury
Parson Judge
Husband is a prisoner, but insufficient info to ascertain status Insufficient info to ascertain status Insufficient info to ascertain status Status probably quite high
X X 1
8 9 (default for Judges) X X X X
Note. Marriage to John Carleton (the marriage which is not disputed) took place 21 April 1663 at St. Bartholomew. Jury named as: William Rutland, Arthur Vigers, Arthur Capel, Tho. Smith, Fran. Chaplin, Robert Harvey, Simon Driver, Robert Kerkham, Hugh Massons, Tho. Wesley, Richard Clutterbuck, Randolph Fooke. No prosecutors/defence council as we would understand them today. However, Kings Justices, Kings Sergeant and Kings Attorney all present (acted on behalf of Crown). Text also appears in Hargrave (Vol. II, p. 498).
Questions and Answers in the English Courtroom (1640–1760)
ID classifications Coleman (27 November 1678) Charge
Conspiring the death of the King, And the subversion of the Govt Of England and the Protestant Religion (treason) Trial Court Kings Bench Bar Outcome Found guilty: Drawn on a hurdle from Newgate to Tyburn, hung on the gallows, cut down alive, stripped, mutilated, ripped open, disembowelled, and quartered. Carried out December 3rd (Lane 1949: 150) ID
Participant
S3tcolem001 The Prisoner, Edward Coleman
Additional info
Occupation
Prior to trial, was to become Secretary of State. Described as gent in trial text used by Hargrave (Vol. II, p. 659). See Biographical details
‘Sometime Secretary P (1 or to the Duchess of 2) York’ according to Oates. Dismissed before his trial. Catholic convert Legal profession 0
S3tcolem002 Lord Chief Justice Those who hold such (Sir) William positions are peers: see Scroggs Biographical details S3tcolem003 Attorney General (Sir) William Jones S3tcolem004 Recorder (Sir) George Jeffries
S3tcolem005 Court. S3tcolem006 Mr. Titus Oates
Legal profession
Status
1
Legal profession – 0 their function is similar to that of the judge Legal profession X
Used DD after his 2 name, but was not qualified (Lane 1949) S3tcolem007 Just. Wild. Probably William Wilde: see 1 Biographical details (following) S3tcolem008 (Gentleman of the) X Jury S3tcolem009 Sir Tho. Dolman 1 S3tcolem010 Just. Dolben
See Biographical details (following)
Date of birth not known – but prop 45+. Knighted in 1677. See Biographical details
S3tcolem011 Sir Rob. Southwell
1
1
Role
Age
D (def) 8 (default)
J 9 (a. 55) b. (judge) ?1623 V 8 (default) (Crown) RE 8 (age 30–34) b. 1644–1648 O X (court) W 8 age 29 b. (pros) 1649 J 9 (a. 67) b. (judge) ?1611 L (jury) X W (for X def) J 9 (judge)
W
X
Note. No defence council – not (officially) allowed in treason cases until 1696, following the Treason Act (see, for example, Beattie 1986: 358). Sergeant Maynard, the King’s Sergeant, and the Solicitor General, Sir Francis Winington, were present, according to Hargrave (Vol. II, p. 659), but they do not figure in this extract. Jury Sir Reginald Forster Sir Charles Lee Edward Wilford, Esq. John Bathurst, Esq.
Joshua Galliard, Esq. John Bifield, Esq. Simon Middleton, Esq. Henry Johnson, Esq.
Charles Unfravile, Esq. Thomas Johnson, Esq. T. Eaglesfield, Esq. William Botice, Esq.
Appendix 1. Details of the SPC trials
ID classifications for Cellier (11 June 1680) Charge Treason Trial court King’s Bench Bar Outcome Found not guilty. Mr. Dangerfield is then committed ID
Participant
Occupation
S4tcelli001 Lord Chief Justice Judge William Scroggs S4tcelli002 Mr. Gadbury Astrologer S4tcelli003 Recorder (Sir) George Jeffreys
Legal profession
S4celli004 Mr. Justice Jones S4celli005 Mr. Justice Raymend S4tcelli006 Mr. Sergeant Maynard
Judge Judge
S4tcelli007
S4tcelli008
S4tcelli009
S4tcelli010 S4tcelli011 S4tcelli012 S4tcelli013
King’s sergeant (knighted in 1660): see Biographical details (following) Attorney General Legal profession: see (Sir) Cresswell Biographical details Levinz Mr. Thomas Used to call himself Dangerfield Captain, but (according to Lane 1949: 218), ‘had as much right to the military title as Oates to his doctorship’ Mrs. Cellier Popish midwife. Involved in ‘charitable’ work, including freeing prisoners. See Biographical details (following) Ralph Briscoe Thomas Williamson Margaret Jenkens Susan Edwards
S4tcelli014 Bennet Dowdal
S4celli015 Captain Richardson S4tcelli016 The Jury
Other info
Described as ‘man of learning’. Protestant See Biographical details (following)
Status
Role
Age
0
J
X
W
9 (age 57) ? 1623 X
1
R
1 1
J J
Acts favourably towards 1 V Cellier, but not part of defence team (not allowed in treason trials until 1690s) Employed for Crown in 1– V popish plot trials (Knight)
8 (age 32–36) b. 1644–1648 9 9 9 (age 78) b. 1602
9 (age 53) b. 1627
Previously in Chelmsford & X Newgate jails. Cellier ‘accepts against’ him as a witness. By end of this text, the judge commits him and frees Cellier!
W
X
Wife of French Merchant P (assigned ‘Gent’ status – see Hargrave, Vol. III, p. 32) Acted as her own defence attorney. Literate – wrote her own account of the trial
D
9 ‘around 50 years of age’
X Helped Mrs. C in her prison X ministry! X Has either received charity X from or works for Cellier – see ‘who gave you your clothes?’ comment Described as ‘civil young woman’ Cellier had tried to make a X marriage match for him, which suggests similar status 2
W (def) X W (king) X
X
W (king) X W (king) 8
W
X
W
X
L
X
Note. LCJ William Scroggs no longer believed that the government wished the Popish Plot to be considered real, and consequently made Mrs. Celliers the object of his especial protection and favour (Campbell, Vol. III, p. 15I) – see State Trials 1013–1055.
Questions and Answers in the English Courtroom (1640–1760)
ID classifications for Giles (14 July 1680) Charge Attempted murder of John Arnold Trial court Sessions House, Old Bailey Outcome Found guilty. Fined £500 and put in the pillory for two days (Hargrave, Vol. III, p. 65) ID
Participant
Additional info
Occupation
S4tgiles001 Recorder Sir George Same as s4tcelli001: see Jeffreys Biographical details S4tgiles002 Mr. John Arnold S4tgiles003 Mr. Thompson S4tgiles004 Mr. Holt
Offended party
See Biographical details (following) ‘Gentleman’ (Hargrave, Vol. III, p. 66)
S4tgiles005 The Prisoner, John Giles S4tgiles006 Mr. Stephen Phillips S4tgiles007 Mr. Walter Watkins S4tgiles008 Mr. George Richmond S4tgiles009 Walter Powel S4tgiles010 Mr. Darnal Role may not be official S4tgiles011 Mr. William Richmond S4tgiles012 The Court S4tgiles013 Mr. Gibbs S4tgiles014 Attorney General Creswell Levinz S4tgiles015 Mr. Bridges S4tgiles016 Walter Moor S4tgiles017 Mr. Reynold S4tgiles018 Mr. Hobbs S4tgiles019 L. Mayor S4tgiles020 Mr. Philpot S4tgiles021 S4tgiles022 S4tgiles023 S4tgiles024 S4tgiles025 S4tgiles026 S4tgiles027
Herbert Jones The Jury Mr. Milbourn John Jones People John Howel Ann Beron
S4tgiles028 Elizabeth Edwards S4tgiles029 Elizabeth Crook S4tgiles030 Kings Council S4tgiles031 Edward James S4tgiles032 Robin Gibbon S4tgiles033 John Chadwick S4tgiles034 Peter Powel S4tgiles035 Roger How
RE
8 (32–36) b. 1644–1648 X
JP for County of Monmouth and MP Legal profession Legal profession
1
IP
2 2
V V
Chief constable ?
1
D
X 8 (age 38) b. 1642 X
X X X
W W W
X X X
X 2
W M
X X
1
W
X
X 2 1
O V V
X X X X X 4
W W W W P W
X X 9 (age 53) b. 1627 X X X 8 X X
1 X 2 4 X 5 5
W L M W ON W W
X X X 8 (15–16) X X 9
X 5 1
W W KC
X X X
X 4
W W
X X
X X X
W W W
X X X
(Seems to be acting as) Council for Def. Howel’s “master”
Legal profession Legal profession Knight: see Biographical Legal profession: same as details (following) s4tcelli007
Lives at the Crown (Inn?)
Status Role Age 1
Examiner? Salesman Mayor of Monmouth
Cutler’s apprentice Servant to Richmond Frequents Inns. ‘Old woman’ (see Jeffries’ summing up speech) Chambermaid Senior barrister – title of honour Stable-man at Kings Arms in Martin Lane Translator
Note. The text seems to imply that a prosecution and defence council are present, even though it is dated 1680.
Appendix 1. Details of the SPC trials
ID classifications for Thompson, Farewell and Pain (20 June 1682) Charge Writing and publishing scandalous letters to Mr. Miles Prance Trial court Guild Hall, London Outcome Guilty ID
Participant
S4tthomp001 Council (for pros) S4tthomp002 Mr. Miles Prance S4tthomp003 Elizabeth Curtis S4tthomp004 Crier S4tthomp005 L.C.J. Sir F. Pemberton S4tthomp006 Sir Philip Floyd S4tthomp007 Sir Fra. Withins
Additional info
Occupation
Barrister Witness at trial of Green, Offended party Berry and Hill Witness at trial of Green, Berry and Hill See Biographical details (following)
Status Role
Age
2 X
V (for pros) X IP X
X
W
X
CR J
X 9 (age 57) b. 1625 X X
4 Legal profession 0 1 1
W V
2
M
1 2
W M
9 (age 52) b. 1630 X X
May be same as above, but given separate ID
2
X
X
S4tthomp012 One of them present S4tthomp013 John Hazard W. for Farewell S4tthomp014 William Batson S4tthomp015 Williams S4tthomp016 Another witness (1) S4tthomp017 Another witness (2) S4tthomp018 Farewell S4tthomp019 Rawson S4tthomp020 Rawson’s wife S4tthomp021 John Stanly S4tthomp022 James Chase S4tthomp023 Mr. Hobbs S4tthomp024 Mr. Brown S4tthomp025 Mr. Smith S4tthomp026 People S4tthomp027 King’s surgeon S4tthomp028 Sir F. Winington S4tthomp029 Sergeant Maynard Same as s4tcelli006: see Biog. details S4tthomp030 Sol. General See Biog. details Heneage Finch (following)
X
N
X
W (def) W (def) M W W D W W W W W W W ON Expert W V V
X X X X X X X X X X X X X X X X 9 (age 80) b. 1602 9 (age 60) b. Dec. 1621 X
S4tthomp008 Mr. Saunders S4tthomp009 Sir John Nicholas S4tthomp010 Council for defence / for Thompson S4tthomp011 C. Thomp
S4tthomp031 Jury
No biog details found. Speaker later referred to as Sir F. Winington same? See Biographical details (following)
X X Legal profession 2 X Carpenter 4 X X X X X X X X X King’s surgeon 2 1 1 1
V
X
L
Note. Defence council present, even though only 1682. Solicitor General in 1682 was Hon. Heneage Finch.
Questions and Answers in the English Courtroom (1640–1760)
ID classifications for Rookwood (21 April 1696) Charge Conspiracy to assassin. King William Trial court Sessions of Oyer and Terminer for the County of Middlesex Sitting in the Court King’s Bench of Westminster Outcome Found guilty (for alternative text, see Hargrave, Vol. IV, pp. 661–698) ID
Participant
S4trookw001 Mr. Attorney General Thomas Trevor S4trookw002 L. C. J. Holt S4trookw003 Mr. Phipps S4trookw004 Mr. Sol. Gen. John Hales S4trookw005 Sir B. Shower S4trookw006 Ambrose Rookwood S4trookw007 Clerk of Arr S4trookw008 Mr. Cowper S4trookw009 S4trookw010 S4trookw011 S4trookw012 S4trookw013
Capt. Harris Mr. Conyers Mr. Chamberlain John Allen Capt. Porter
S4trookw014 S4trookw015 S4trookw016 S4trookw017
Crier Frederick Milford Oldfield Mr. Webber
S4trookw018 Black Will
Additional info
Occupation
Status Role Age
See Biographical details (following)
Legal profession
1
V
8 (37?) b. ? 1659
Same as S4tgiles004: see Biog. details
Legal profession
0
J
Legal profession Legal profession
2 1
M V
9 (54) b. 1642 X X
Legal profession
1
M
X
D
2 1
N V
2 2 X X 2
W V W W W
X 8 (37) b. 1669 X X X X X
4? X X X
CR W W N
X X X X
5
W
X
No biog. details found See Biographical details (following)
Same as s4tfranc005
No biographical details
Legal profession
Previously convicted of manslaughter – pleaded the king’s pardon
Asked where witnesses that had been called (but had not shown) were Servant to Capt. Porter A Moor
8 (37) b. 1658 X
Note. Also present – Lord Chief Justice Tracy, Mr. Justice Nevil, Mr. Justice Powell, Mr. Justice Eyre, . . . later joined by Lord Chief Baron Ward, Mr. Baron Powis . . . but none appear as speakers/addressees during this extract. Jury – Samuel Powell, Arthur Bailey, John Webber, George Tredway, Timothy Lennoy, John Harris, George Carter, William Atley, John Marsh, Samuel Freebody, Daniel Byfield, Benjamin Noble. Using CRIER (=cr) when speakers ask for witnesses to be called.
Appendix 1. Details of the SPC trials
ID classifications for Francia (22 January 1716) Charge high treason Trial court Old Bailey Outcome Found not guilty, and discharged (for alternative text, see Hargrave, Vol. VI, pp. 58–102) ID
Participant
S4tfranc001 Mr. Solicitor General, John Fortescue Aland S4tfranc002 Lord Ch. Baron – Sir Thomas Bury S4tfranc003 Joseph Smith
Additional info
Occupation
Knighted 1717 (after this Barrister for Crown trial). See also Biographical details (following) According to date, should be Judge – legal profession Samuel Dodd. See Biographical details Messenger [delivers warrants] S4tfranc004 Mr. Attorney Sir Edward Northey – no Barrister for Crown General biog details found S4tfranc005 Mr. Cowper Probably Spencer Cowper – Barrister brother William was Lord Chancellor S4tfranc006 Mr. Ward No biog details found Barrister S4tfranc007 Mr. Hungerford No biog details found Barrister S4tfranc008 Mr. Francis Born 26 March 1675 Merchant. Described as Francia (newstyle) Bourdeaux, a ‘jew’ by Attorney France. Brother says he was General in Hargrave worth £8–10,000 before (Vol. VI, p. 62) losing some of his wealth S4tfranc009 Sir Joseph Jekyll Made Chief Justice of Chester Kings Sergeant from June 1697, and knighted 1700: see Biog details soon after S4tfranc010 Mr. Horatio Under secretary to Lord Walpole Townshend S4tfranc011 Mr. Buckley Works for Townshend Civil servant ? S4tfranc012 Mr. Denton S4tfranc013 Mr. Justice Pratt Made a Knight and JKB in Judge 1714 S4tfranc014 Lord Secretary of state at the time Gave Francis 5 guineas Townshend of alleged crime – reason why is disputed S4tfranc015 Mr. Justice See Biographical details Judge Tracy (following) S4tfranc016 Mr. Curtis In custody at same time as Francia S4tfranc017 Mr. Boyer Interpreter S4tfranc018 Mr. Ozell Interpreter S4tfranc019 Secretary Stanhope S4tfranc020 Jury S4tfranc021 Clerk Legal profession S4tfranc022 Flint May be George Flint, who Interpreter was with prisoner in Newgate – see Hargrave (Vol. VI, p. 61) S4tfranc023 Simon Francia Prisoner’s brother. From Bourdeaux S4tfranc024 Jaques Gonsales Prisoner’s maternal uncle – needed interpreter
Status Role
Age
1
V
9 (age 45) b. 1670
0
J
9 (age 61) b. 1655
4
W
X
1
V
X
1
V?
9 (age 47) b. 1669
2 2 X
M M D
X X 8 (age 40) b. 1675
1
V
9 (age 53) b. 1663
1
W
X
2 X 1
W X J
0
W
X X 9 (age 59) b. 1657 X
1
J
X
W
X X 1
W [pros] X W [pros] X W X
X 2 X
L X N X W [def] X
X
W [def] 8 (age 44)
X
W [def] 9
9 (age 61) b. 1655 X
Questions and Answers in the English Courtroom (1640–1760) (continued) ID
Participant
S4tfranc025 Emes Lamira
S4tfranc026 Cecilia Ceres
S4tfranc027 Lucy White S4tfranc028 Mary Meggison S4tfranc029 S4tfranc030 S4tfranc031 S4tfranc032 S4tfranc033 S4tfranc034 S4tfranc035
Revel Mr. Everall Mrs. Everall Rafter Barwell Dr. Cade Thomas Richardson
Additional info
Occupation
Sex not known. Lived in Bourdeaux when Francia was born Went to school with prisoner. Born in same street in Bordeaux Husband a dealer but, at time of trial, not in England Turn-key Married to Mrs. Everall Married to Mr. Everall
Status Role
Age
X
W [defe] 9
X
W [def]
X 3
W [def] X W [def] X
4 X X X X 2 X
W W W W W W W
8
X X X X X X X
Note. Solicitor General – John Fortescue Aland, Lord Chief Baron – Thomas Bury, and Attorney General – Edward Northey in 1716.
Appendix 1. Details of the SPC trials
ID classifications for Layer (1722) Charge High Treason Trial court High Bench at Westminster Outcome ID
Participant
S5tlayer001 Mr. Solicitor General S5layer002 Stephen Lynch S5tlayer003 Mr. Hungerford S5tlayer004 Ld. Ch. Just. Sir John Pratt S5tlayer005 Mr. Sergeant Cheshyre S5tlayer006 Mr. Sergeant Pengelly S5tlayer007 Mr. Attorney General S5tlayer008 Mr. West S5tlayer009 Mr. Reeve S5tlayer010 Mr. Ketelbey S5tlayer011 Prisoner
S5tlayer012 Matthew Plunkett S5tlayer013 Mrs. Mason.
S5tlayer014 Mr. Speare / Messenger
Occupation
Other info
Legal profession Sir Philip York[e]
Status Role Age 1
V
No biographical details Made Lord Chief – May 1718
X 2 0
W M J
No biographical details
2
V
Sergeant-at-Law See Biographical details (following) 1 / 2?
No biographical details See Biographical details No biographical details Described as “Esq.” Also seems to have socialised with other members of the gentry and nobility, hence status. M. Plunkett calls him “Counsellor”. According to Mrs. Mason, used an alias – Fountaine. Note – brought to trial in irons for several days, but eventually taken off Irishman. Previously, a sergeant in the army Bundles (for Layer) delivered to Mrs. M’s lodgings. She kept these in her trunk . Describes herself as “hav[ing] no trade”. Accused of using aliases by Layer and his defence team . . . One of two messengers (the other being a Mr. Turner). Opened up the bundles
Note. Jury Thomas Clarke, Gent. Thomas Pratt, Gent. Robert Barnard, Gent. Isaac Potter, Gent. Francis Aylett, Gent. Richard Gray, Gent. Hezekiah Haynes, Gent. William Nicholson, Esq. William Wheatly, Gent. John Lowry, Gent. Christopher Hill, Gent. High Bench at Westminster probably had same LCJ as King’s Bench.
V
8 (age 32) b. 1690 X X 9 (age 65) b. 1657 X
1
V
2 2 2 1
V V M D
9 (age 47) b. 1675 9 (age 49) b. 1673 X X X X
4
W
X
X
W
X
4
W
X
Questions and Answers in the English Courtroom (1640–1760)
ID classifications for Cibber v. Sloper (5 December 1738) Charge
Two Causes, between Teophilus Cibber, Gent. Plaintiff, and William Sloper, Esq. Defendant, the first for criminal conversation, the second for detaining the plaintiff’s wife Trial court Court of King’s Bench, Middlesex Outcome although ‘the defendant’s council found that the affair had been not only with the husband’s consent, but also concerted by him’, the jury seemed to disagree. They ‘brought in a verdict for the plaintiff’ and awarded him ‘ten pounds damages’ ID
Participant
Occupation
S5tcibbe001 Plaintiff’s Attorney S5tcibbe002 Mr. Cibber, Snr.
Legal profession –
S5tcibbe003 Mr. Fleetwood
Master of Drury Lane Playhouse Legal profession –
S5tcibbe004 Defendant’s council S5tcibbe005 Mrs. Hayes
The plaintiff’s father. Produced plays – claims to have 40 years experience of ‘knowing the stage’
Ran lodgings on Blue Cross St, Leicester Fields. As above. Visitor to and friend of the Hayes
S5tcibbe006 Mr. Hayes S5tcibbe007 Mr. Rowe S5tcibbe008 Juryman S5tcibbe009 Right Hon Sir William Lee, Knight S5tcibbe010 Mr. Carter
S5tcibbe011 Ann Hopson
S5tcibbe012 Mrs. Carter S5tcibbe013 Jane Phillips
Other info
Legal profession – Lord Chief Justice of King’s Bench, Middlesex Property owner
See Biographical details (following) Also owned lodgings, which Mrs. Cibber rented out for herself, her maid and Mr. Sloper Mrs. C’s maid – rented Mrs. H’s lodgings so that her mistress and Mr. S could meet there. At time of trial, had left Mr. C’s service to return to “business of mantua-making”, which she had been bred to . . . Wife of Mr. Carter Housemaid – ‘used to make the beds at Burnham’, one of the lodgings used by Mrs. C, A.H, and Mr. S
Status Role Age 2
V
X
3
W
9
3
W
X
2
M
X
3
W
X
3 X
W W
X X
X 0
L J
X 9 (a. 50) b. 1688
3
W
X
5
W
X
X 5
W W
X X
Special note provided detailing both councils: Council for Plaintiff – Mr. Solicitor General, Mr. Hollings, Sergeant Agar, Mr. Marsh, Mr. Dennison, and Mr. Lawson. Council for Defendant – Sergeant Eyre, Mr. Noel, Mr. Lloyd, Mr. Murray, and Mr. Barnadiston.
Appendix 1. Details of the SPC trials
ID classifications for Greenwood (2 August 1740) Charge Robbing Mr. Roger Wheatly near Camberwell Trial court Before the Right Honourable Mr. Baron Carter, at the Assizes for the county of Surry (Kingston upon Thames) Outcome Not guilty (acquitted) ID
Participant
Occupation
S5tgreen001 Council (for pros) Legal profession S5green002 Mr. Roger Wheatley, victim/injured party S5tgreen003 Court S5tgreen004 Council for Prisoner
Legal profession Legal profession
S5tgreen005 Thomas Baker S5tgreen006 Dr. Thompson
Doctor
Other info
Status Role
Age
Includes “Pros. Co.” & “P. Co.” Networks with gentry, owns country house, and described as ‘a Gentleman of Fortune in the Country by Mr. M (Prosecutor’s counsel) (see p. 7)
2 1
V IP
X X
X 2
O M
X X
X
W (pros) W
X
Includes “Pris. Co.” Two barristers Mr. Sergeant W—nn and Mr. L-cy (see p. 16) Tenant of Mr. Wheatley Tended to Mr. Wheatley’s wounds on day of attack
S5tgreen007 John Baker S5tgreen008 George Baker S5tgreen009 Cicely Mow S5tgreen010 Mr. Chatler S5tgreen011 Mr. Bartholomew Greenwood S5tgreen012 Mr. Dobbiggen S5tgreen013 Mr. Turner S5tgreen014 Mr. Sinicrose S5tgreen015 Thomas Crose S5tgreen016 Alice Turner S5tgreen017 John Greenwood
S5tgreen018 Lord Delawar S5tgreen019 Mr. Frazier S5tgreen020 Col. De Veil S5tgreen021 Mr. Baron Carter S5tgreen022 Jury
2 X
Dined with Greenwood on 5 June (night of alleged incident) Servant to Mr. Greenwood Lives ‘next door to Old Mr. Greenwood, in the Savoy’ Uncle of prisoner. Described as “old” (by Sinicrose and Chatler) Literate
Innkeeper of the Genoa Arms Servant at the house where defendant lodges Brother of defendant. Received rents from (father/brother’s) estate Commands the troop that the defendant is Riding Master of Responsible for dispensing warrants J.P ? Local constable? Previously examined defendant Legal profession – see Baron of Exchequer; knighted in Biographical details 1724
X
1
(for X def) W (def) X
5 1
W (def) 8 W (def) X
1
W (def) 9
X X X 4 5
W (def) W W W W
1
W (def) X
0
W (def) X
X
W (def) X
2 1
W J
X
L
X X X X X
X 9 (68) b. 1672 X
Note. According to brother John, the prisoner has “Seventy Pound a Year or upwards Estate part Freehold, part Copyhold”. According to Lord Delawar, he is “Riding Master to the Troop” which L.D. commands. This position alone worth approx 150–200 l. per annum. Prisoner also described as “young Mr. Greenwood”.
Questions and Answers in the English Courtroom (1640–1760)
ID classifications for Ambrose (Oct/Nov 1745) Charge Enquiry into conduct whilst engaged in combat at sea Trial court Ships The Chatham & The London ID
Participant
Occupation
Additional info
Status
Role
Age
S5tambro001 S5tambro002
The Court Lieutenant Hugh Palliser Ambrose Captain Renton The President Lieutenant Joseph Payton Lieutenant Hamilton Gore Joseph Meyers
Naval Naval: lieutenant
1st Lieutenant of the Essex
X 2
0 W
X 8
D OC J W
X X 9 8
S5tambro003 S5tambro004 S5tambro005 S5tambro006 S5tambro007 S5tambro008
S5tambro009 S5tambro010 S5tambro011 S5tambro012 S5tambro013
Lieutenant Edmund Turner Lieutenant Robert Wilson James Patterson Captain Philip Toms Sir Charles Molloy
Naval: captain Naval: captain Naval Naval: lieutenant
4th Lieutenant of the Essex
2 2 1 2
Naval: lieutenant
Lieutenant of the Essex
2
W
8
Naval: Master
According to his deposition, was Master of Essex when incident took place Lieutenant of the Royal Oak
2
W
X
2
W
8
2
W
8
2 2
W W
X X
1
OC
X
Naval: lieutenant
Prisoner Member of the Court
Naval: lieutenant Naval: Master’s mate Naval: captain Naval
Naval officer At time of incident, 2nd Lieutenant of the Norfolk Member of the Court
Note. Incident took place 11 February 1743. Naval ranks differ from Army ranks – Captain: title of an officer who ranks between a rear-admiral or a commodore and a commander. Master: until 1814, the title of the officer in the navy now called commander (commander ranks below a captain and above a second lieutenant). Master’s mate: an officer subordinate to commander but working with the master of a ship. Hence – rear-admiral, captain, master/commander, 1st lieutenant, master’s mate, 2nd lieutenant, etc.
Appendix 1. Details of the SPC trials
ID classifications for Baker (1750) Charge forgery Outcome The pleadings being ended the Jury desired to / withdraw, which they did for about ten minutes, / and then gave their verdict, Not guilty of forging / the warrant, but Guilty of publishing it knowing / it to be forg’d. Death. ID
Participant
s5tbaker001 Charles Gastineau s5tbaker002 Counsel for Crown S5tbaker003 Counsel for Prisoner S5tbaker004 Richard Holland S5tbaker005 Deputy Slater S5tbaker006 Mr. Holbrook S5tbaker007 Toby Chauncey S5tbaker008 Robert Sedgwick S5tbaker009 Mr. William Web S5tbaker010 John Sedgwick
S5tbaker011 S5tbaker012 S5tbaker013 S5tbaker014 S5tbaker015 S5tbaker016 S5tbaker017 S5tbaker018 S5tbaker019
Anto. Hotchkin Mr. Alveringa Mr. Pacheco Mr. Benny My Lord, the judge Mr. Key Mr. Ford Sir Thomas Bootle William Baker, the prisoner
S5tbaker020 Sergeant Hayward S5tbaker021 Beaston Long, Esq. S5tbaker022 Mr. Douglas S5tbaker023 Mr. Bradshaw S5tbaker024 Alderman Rawlinson S5tbaker025 Mr. Lawrence S5tbaker026 Mr. Nash S5tbaker027 Mr. Seamark S5tbaker028 Mr. Kilpin S5tbaker029 Mr. Hall S5tbaker030 Alderman Blackiston S5tbaker031 Mr. Beal S5tbaker032 Mr. Stow
Additional info
Offended party Able to give credit To East India Co. Transacts business at EIC’s sale Signs warrants when they are delivered in East India Co. employee
Occupation
Status
Role
Age
Broker Barrister Barrister
3 2 2
W V M
X X X
3 3 Warehouse keeper 3 Hayter’s apprentice 4 Broker 3
IP W W W W
X X X 8 X
3
W
X
4
W
X
3 3 4 2 1 2 2 1 P–?1 or 3
W W W M J M M V D
X X X X 9 X X X X
2 1
M (character) W (def)
X X
3 3 3
(character) W (def) (character) W (def) (character) W (def)
X X X
3 X X X X 1
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Joint Treasurer, East India Co. Asst. to Dorrington, Joint Treasurer Buys/sells tea Merchant Lent to defendant Money lender Delivers warrants Barrister Judge Barrister Barrister Barrister Involved in ‘great trade Sugar baker and Great credit’ to ‘ten thousand pound’ sum. Barrister Deals in sugar Merchant – but note the use of Esq. Involved in finance Sugar broker Money lender and trader Credit broker?
– would have lent the Money lender prisoner the £1,000 ! Buys/sells goods Merchant Known prisoner for 14 yrs. S5tbaker033 Sir Henry Marshall Known prisoner for 13–14 years
Note. 015 – My Lord, the Judge could be one of two – Right Hon. Francis Cokayne, Esq., Lord-Mayor of the City of London (no biographical details for) or Sir Thomas Dennisson, knt (one of the Justices of his Majesty’s Court of King’s Bench: for biblographical details, see following).
Biographical details for participants
John Fortescue Aland (Lord Fortescue). Grandson of Hugh Fortescue (7 in lineal descent from the illustrious chief justice of Henry VI), and, as such, part of a very illustrious family. Born March 7, 1670. Received honorary degree of doctor of civil law on May 4 1733 from Oxford University. However, no trace of him in the register of matriculations. In 1688, Aland became a member of the Middle Temple, but afterwards moved to the Inner Temple. Called to the bar in 1712. Took up post of Reader in 1716. In October 1714, immediately after the arrival of George I, he was appointed Solicitor-General to the Prince of Wales (afterwards George II). He was promoted to Attorney-General in December of the following year. He was member for Midhurst in the first parliament of George I, but only sat during its first session. Knighted 1717, and raised to the bench of the Exchequer (January 24), a seat he occupied for little more than a year. Moved to the King’s Bench May 15 1718, and sat in that court till the death of George I, when he fell out of favour (State Trials, XV, p. 975 and XVI, p. 1206). After 15 months retirement, he was restored to favour, and placed in the Common Pleas on January 27 1729. He worked in the Pleas for 17 years, resigning in 1746. Two months later (August), he was granted a barony in the Irish peerage. His title was Lord Fortescue of Credan in the county of Waterford. Aland died December 19 1746. Source – Foss (1870: 5). John Bradshaw (c. 10.12.1602–31.10.1659). After a provincial practice he was called to the bar at Gray’s Inn, in 1627; Chief Justice of Chester 1647 (according to Foss (1870: 115), Bradshaw was also appointed Judge of the Sheriff ’s Court in London 23 June 1645). Made sergeant 12 October 1648. In January 1649, ‘no judge or lawyer of the first rank being available’, Bradshaw was appointed commissioner for the trial of Charles I and elected President of the Court. Post-trial, he was made President of the Commonwealth of State, but he resisted Cromwell politically and was demoted. After Cromwell’s death (1659), he was appointed LCGS on 3 June but died in less than five months. Bradshaw was buried in Westminster Abbey. In 1660, his remains were disinterred, drawn, hanged, beheaded and gibbeted, his head being placed on top of Westminster Hall. Source – Simpson (1984: 73). Note – in 1644, assigned as one of the counsel against Lord Macguire for the rebellion in Ireland; and he probably assisted Prynne in his argument to prove that Irish peers were amenable to trial by an English jury. Thomas Bury. Youngest son of Sir William Bury, knight, of Linwood in Lincolnshire. Born in 1655, he entered Gray’s Inn in 1668, and was called to the bar in 1676. After twenty-four years practice, he obtained the degree of sergeant in 1700, and on January 26 of the next year he was made a Baron of the Exchequer. Speaker Onslow in his notes to Burnet states that it
Questions and Answers in the English Courtroom (1640–1760)
appeared by Bury’s “Book of Accounts” that Lord Keeper Wright had 1000l. for raising him to the bench. However, the story depends on very slight testimony. Knighted shortly after being made baron, Bury sat in the same court during the remainder of his life; for fifteen years as a puisne baron, and for six as chief baron, to which he was advanced June 10 1716. In the famous Aylesbury case in the House of Lords he supported the opinion of Chief Justice Holt, when the judgement he had opposed was reversed. Died May 4 1722. Lawrence Carter (b. Leicester, 1672 – died March 14 1745). Father – innovator/parliamentarian; mother – daughter of eminent solicitor. Called to bar by Lincoln’s Inn – elected Recorder of Leicester Sept. 1 1697. Entered House of Commons 1698, where he served for two different parishes. Re-elected 1710, 1714, 1715, 1722. Professional career distinguished by his being appointed Solicitor-General to Prince of Wales in 1717. Made King’s Sergeant soon after, when he was knighted. Sept. 7 1726, Carter succeeded Mr. Baron Price as Baron of the Exchequer – retained his Recordership for next 3 years. Continued on bench till his death. Source – Foss (1870: 157). Elizabeth Cellier. A noted London midwife, who came into prominence through the pretended “Meal-Tub Plot” of 1680. Nothing seems known of her life till her marriage with Peter Cellier, a Frenchman, and her conversion from Anglicanism. In 1678, the prisons were filled with Catholics as a result of the national alarm caused by the fabricated plots of Titus Oates. Mrs. Cellier visited/helped these prisoners and/or became the channel of other Catholic ladies’ charity towards the prisoners. Among these ladies was the Countess of Powis, whose kindness was shown to, among others, Thomas Dangerfield. However, Dangerfield was not the man he seemed, and Lady Powis stopped helping him. Dangerfield wanted revenge, and decided to invent a new popish plot involving Lady Powis. His story was that he had been released from prison through the good offices of Lady Powis and Mrs. Cellier, on condition that he would assassinate the king, Lord Shaftesbury, and others. He further pretended that he was to be engaged in manufacturing false plots to be foisted on those who were known to be unfavourable to the Catholic cause. One of these shams was to be based on a document that, he alleged, was hidden in a meal-tub in Mrs. Cellier’s house. A search was made, and in a meal-tub the paper in question was found. It charged with treason most of the leading Protestants, including the king’s natural son, the Duke of Monmouth, the Earl of Shaftsbury, and Sir Thomas Waller, who was the very official charged with the search. Lady Powis, Mrs. Cellier, the Earl of Castlemain and a number of other Catholics were arrested. Mrs. Cellier’s trial took place 11 June 1680. She was charged with high treason, but practically the only evidence against her was that of Dangerfield himself, and she had little difficulty in proving him a witness entirely unworthy of credence. She was found not guilty, and Dangerfield himself was arrested on account of a felony, for which he had been previously outlawed. After her acquittal, Mrs. Cellier published a brief relation of the whole affair, under the title of “Malice Defeated”. This led not only to a long series of pamphlets for and against her, but also to a second prosecution – that of libel against the king and ministry. Source – The Catholic Encyclopaedia, Vol. III (online edition 1999). Charles I (1600–1649). Charles ascended the throne at the age of 25. Unfortunately, his reign is more notable for its problems than its successes. Although he summoned parlia-
Biographical details for participants
ment three times through 1625–1629, it was dissolved because of its unwillingness to grant funds until Charles addressed the grievances of the nobility. Consequently, Charles financed his reign by selling commercial monopolies and extracting ship money (a fee demanded from towns for building naval warships). Charles’ marriage to the devoutly Catholic French princess further incensed the increasingly Puritan nobility, as her Catholic friends flooded into the royal court. A problem in Scotland brought an abrupt end to Charles’ 11 years of personal rule and unleashed the forces of civil war upon England. Charles attempted to force a new prayer book on the Scots, which resulted in rebellion. Charles’ forces were ill prepared due to lack of proper funds, causing the king to call, first, the Short Parliament, and finally the Long Parliament. King and Parliament again reached no agreement; Charles foolishly tried to arrest five members of Parliament on the advice of Henrietta Maria, which brought matters to a head. The struggle for supremacy led to civil war and, ultimately, to Charles trial and eventual execution. Edward Coleman. A controversialist, politician, and secretary of the Duchess of York, date of birth unknown. Executed at Tyburn, 3 December 1678. Coleman was the son of a Suffolk clergyman and, after a distinguished career at Cambridge, became a Catholic and was employed by the Duchess of York. As the Duchess’s secretary, Coleman became acquainted with continental statesmen, among them Père La Chaise, the confessor of Louis XIV, and Father Saint-Germain. On occasion, he sought pecuniary help for the Catholic cause. By way of illustration, he succeeded in obtaining £3,500 from three successive French ambassadors whom he supplied with daily information regarding the proceedings of Parliament. Perhaps not surprisingly, Coleman became a suspected character. And Titus Oates then named him in his fictitious plot. Coleman was so sure of his innocence that he took no steps to protect himself, allowed his papers to be seized, and gave himself up for examination. He was tried 28 November 1678, being accused of corresponding with foreign powers for the subversion of the Protestant religion, and of consenting to a resolution to murder the king. His defence was that he had only endeavoured to procure liberty of conscience for Catholics constitutionally through Parliament, and had sought money abroad to further this object. He denied any complicity with the plot against the king’s life. His foreign correspondence of 1675 and 1676, when examined, proved him to be an intriguer, but contained nothing that could connect him in any way with designs on the king’s life. However, in spite of the flagrantly false testimony of Oates and Bedlow, he was found guilty, and executed. Source – The Catholic Encyclopaedia, Volume IV (online edition 1999). John Cooke (c. 1609–1660). Law reformer and regicide. Educated – Wadham College, Oxford. Admitted to Gray’s Inn 1623; barrister 1631; admitted King’s Inn 1634. Chief Justice of Presidency Court of Munster 1650–1655; Justice of Irish Upper Bench 1659. During Civil War and Interregnum period, Cook was an army independent with an interest in law reform – see his The Vindication of the Professors of Law (1646). Because of the absence of William Steele (Attorney-General), Cooke led for the Commonwealth at the trial of Charles I. Final years – tried and executed as a regicide (1660). Source – Simpson (1984).
Questions and Answers in the English Courtroom (1640–1760)
Mr. Cowper – possibly one of two brothers: 1 choice Spencer Cowper (1669–10.12.1728). Judge. Developed an extensive practice in his thirties. Also an enthusiastic and able MP. 2 choice William Cowper (1664–10.10.1723). Judge, and the first Lord Chancellor of Britain (May 1707). Successfully defended his brother against a murder charge. Also an MP. Indeed, heavily involved in politics. Appointed Lord Keeper in 1605 and a peer in 1706. Sir Thomas Dennisson [Denison]. Younger of two sons of Mr. Joseph Denison, an opulent merchant at Leeds. Born in 1699. Received his legal education at the Inner Temple, where he was called to the bar. His merits as a lawyer soon procured him a considerable practice, and, without having filled any of the minor offices of the profession, he was made a judge of the King’s Bench in December 1741. He was knighted in November 1745, when he joined in the loyal address to the king on the rebellion. Sat under three successive chief justices – Sir William Lee, Sir Dudley Ryder, and Lord Mansfield. Resigned February 14 1765, due to ill health and failing eyesight. Lord Mansfield wrote the epitaph for his (graveside) monument. Source – Source = Foss (1870: 216). Samuel Dodd. Born about 1652. The Inner Temple was his school of law, where he was called to the bar in 1679, and admitted to the bench in 1700. He was counsel for Dr. Sacheverell in the ill-judged impeachment against him in 1710. Very popular among the high church party (State Trials, xv. 213, &c). On the accession of George I, he was appointed to the position of lord chief baron (November 22, 1714) and knighted. He occupied his seat for seventeen months, dying on April 14, 1716. He left a manuscript volume of Reports, which is preserved amongst the Hargrave Collection in the British Museum. Source – Foss (1870: 222). William Dolben. Pursued his legal studies at the Inner Temple, was called to the bar in 1653, and was elected a bencher in 1672, and autumn reader in 1677. His legal merits probably procured him a royal recommendation for the recordership of the city of London, to which he was elected on February 8, 1676, and knighted. He held the place till he was advanced to the bench, when the corporation voted him a piece of plate ‘as a loving remembrance’. In 1677 he was the first-named sergeant, and was immediately made one of the king’s sergeants. On October 23, 1678, he was constituted a judge of the King’s Bench; and it was his misfortune to sit under Sir William Scroggs as chief, and to be present at all the trials arising out of the Popish Plot, in the existence of which, as far as it appears, he had a firm belief. But he saw and fairly pointed out the inconsistencies and improbabilities of the evidence against Sir Thomas Gasgoine, which resulted in acquittal; and at the trial of Sir Thomas Stapleton at York for high treason he summed up favourably for the prisoner, who was thereupon acquitted. Being found to be too independent, and suspected of not siding with the crown in its attempt against the charter of the city of London, he was suddenly superseded on April 20, 1683, just before the judgement against the city was pronounced. Whether he returned to the bar is uncertain. At the revolution, Sir William Dolben was replaced in his former seat (March 11, 1689). He died on Jan. 25, 1694.
Biographical details for participants
William Ellis (c. 1609–3.12.1680). Solicitor-general to the Protector who became Judge of the Common Pleas under Charles II. Appointment as Solicitor – 1654. Also served intermittently as an MP. Career – admitted into Gray’s Inn; called to the bar 1634. Between 1656–1659, received a baronetcy from the Protector but lost title in 1660. Became Sergeant in 1660. Made one of Kings Sergeants in 1671, when he was knighted. Hon. Heneage Finch. (First Earl of Nottingham), Lord Chancellor (23.12.1621–18.12.1682). Educated Westminster School, Christ Church, Oxford; admitted Inner Temple 1638; bar 1645. During the Commonwealth he confined himself to private practice, but entered public affairs at the Restoration. MP, Solicitor General and baronet 1660. During the next decade he was active in Parliament and the courts, becoming Attorney General in 1670. On Shaftesbury’s dismissal in 1673 he became Lord Keeper and received a peerage, and in 1675 Lord Chancellor (the office he retained until his death in 1682). In his long political career in both Houses of Parliament he avoided identifying himself with any party or faction, and as Blackstone comments ‘the fact that throughout an unceasing official career of more than 20 years, in a time of passion and intrigue, Finch was never once the subject of parliamentary attack, nor ever lost the royal confidence, is a remarkable testimony both to his probity and discretion’. Able ‘in the course of nine years to build a system of jurisprudence and jurisdiction upon wide and rational foundations’ (Blackstone Comm. Iii, 55). Finch’s work as Chancellor earned him the title of ‘The Father of Modern Equity’ amongst his peers. Especially praised for his development of rational doctrine and in far sighted statesmanship as a law maker. Mr. John Holt (30.12.1642–5.03.1709/10). Educated. Oriel College, Oxford; Admitted Gray’s Inn 1652; Barrister 1663/4; Bencher 1682; Kings Sergeant. 1686; Chief Justice Kings Bench 1689. Father was a royalist Sergeant at Law. Probably began practice in about 1669. By about 35, he was established in both civil and criminal cases, appearing as often for the crown as in defence of Whig ‘troublemakers’, both famous and obscure. Appointed Recorder of London by James II in 1685/6 and, shortly afterwards, King’s Sergeant. Lost Recordership in 1686/7. Source – Simpson (1984: 254–255). Sir George Jeffreys (1648–1689). Born near Wrexham, Clwyd. Education began at the free school of Shrewsbury, and continued at St. Paul’s School in London (1659–1661) and at Westminster School (1661–1662). Did not take a degree. Admitted Inner Temple 1663; called to the bar in 1668. Said to be ‘of little learning in the law’, yet ‘nonetheless a skilful and perspicuous cross-examiner’ (Simpson 1984: 274). Although skill partly explains his rapid rise (see below), Jeffreys was also prepared to show ‘judicial brutality and manifest unfairness’ when ‘in pursuit of the Crown’s interest’ (Simpson 1984: 275). By way of example, he apparently advised the Court to ‘swim with the tide of popular anti Papist sentiment’ in the trials relating to the Popish Plot (Simpson 1984: 274). Yet, according to Roger North, his contemporary, ‘when he was in temper and matters indifferent came before him, he became his seat of justice better than any other I saw in his place’ (Life of Lord Keeper Guilford, p. 219). Knighted 1677; Recorder of London 1678–1680; Sergeant 1679; Chief Justice of Chester 1680; Baronet 1681; Chief Justice of the King’s Bench 1683; Lord
Questions and Answers in the English Courtroom (1640–1760)
Chancellor (1685–1688). After the flight of James II, Jeffreys was imprisoned in the Tower, where he died. Sir Joseph Jekyll, Judge (c. 1663–19.08.1738). Admitted Middle Temple (1680), bar (1687), MP + Chief Justice of Chester (1697). Knighted soon after. A constant whig, who enjoyed the patronage of SOMERS (whose sister he married). As King’s Sergeant (1700), he was prosecutor in many parliamentary impeachments. In 1717, he was appointed Master of Rolls. Note – held office of Master of Rolls for 21 years (1717–1738). An able equity lawyer, and as MR made important contributions to equity jurisprudence. Source – Simpson (1984: 277) and Foss (1870: 374–375). Note – according to the latter source, Sir J. Jekyll conducted the indictment against Francis Francia. Sir William Lee, Judge (1688–08.04.1754). Educated Wadham College, Oxford (no degree); admitted Middle Temple 1704; Inner Temple 1717; Bencher 1725; Barrister 1711; King’s Counsel and Attorney-General to Prince of Wales 1728; Justice of Kings Bench 1730; Chief Justice of Kings Bench 1737; PC 1745. Sir Cresswell Levinz, Judge and Reporter (1627–19.1.1700 or 1701). Educated Trinity College, Cambridge; Admitted Gray’s Inn 1655; Barrister 1661; Bencher 1678; Treasurer 1679; Knighted and made King’s Council 1678; Attorney-General 1679; Justice Common Pleas 1681; Dismissed 1686. Returning to the Bar, he was one of counsel for the Seven Bishops in 1688 and continued to practise as a sergeant until his death. Levinz took part as counsel and judge in many of the political cases from the ‘Popish plot trials to the Western Assizes in 1685, but his conduct does not appear open to serious criticism. His Reports (published posthumously in 1702) cover 1660–1697. Source – Simpson (1984: 312) and Foss (1870: 406). Sir John Maynard, Judge, legal writer (1602–1690). Educated Exeter College, Oxford, BA 25.4.1621; Admitted Middle Temple 1619; Barrister 1626; Bencher 1656–1668, Beeralston 1661–1679, Plymouth 1679; Sergeant 9.2.1654; Solicitor General 1659; Sergeant 22.6.1660; King’s Sergeant 9.11.1660; Knighted 16.22.1660; Joint Commissioner of Great Seal 5.3.1689. Regarded by his contemporaries as ‘the best old book lawyer of his time’. Said to have great knowledge ‘in the more profound + perplexed parts of the law’. Compiled editions of the yearbooks (including one in Edward II’s reign). Emerged to prominence as a parliamentarian 1640s–1650s. As a fervent Presbyterian, Maynard attacked the Laudian bishops. As a parliamentarian, he defended the Commons’ privileges against both Charles I and Cromwell. Note – he withdrew from the House in 1648/9, regarding it as an unconstitutional assembly following the deposition of the king. As a lawyer – defended and secured the acquittal of John Lilburn in 1653. In 1654, he did the same for a city merchant who had not paid his taxes. Maynard challenged the lawfulness of Cromwell’s government itself – and, in consequence, spent a brief spell in the Tower. Following the Restoration, he sat on Council of State, and represented the Crown at some of the major state trials (e.g. at the trials of Sir Henry Vane in 1662, Lord Mordant 1666–1667, Lord Cornwallis 1678, and the prosecutions arising out of the Popish Plot in 1679–1680). Having opposed James II’s policies, he went on to support William III – and used his deep knowledge of constitutional law to defend
Biographical details for participants
the convention parliament and the abdication of James II. His reward was an appointment (jointly with Sir Anthony Keck and Sir William Rawlisson) to the position of a Lord Commissioner of the Great Seal (March 5 1689). Maynard retired (or was removed) soon after. Source – Simpson (1984: 259). M. Nudigate [Newdigate] (17.09.1602–14.10.1678). Educated Trinity College, Oxford; admitted Member of Gray’s Inn. Had a considerable practice as an advocate. Engaged by State with Prynne and Bradshaw in the prosecution of Lord Macguire and others for Irish Massacres. Later years – made a sergeant in January 1654; in May of same year, accepted a seat on Upper Bench; Jan 1660 – became (Lord) Chief Justice; 1677 – given baronetcy. Source – Foss (1870: 479). Titus Oates (1649–1705). English conspirator. An Anglican priest whose whole career was marked with intrigue and scandal, he joined forces with one Israel Tonge to invent the story of the Popish Plot of 1678. Oates, who had been briefly a convert to Roman Catholicism, claimed that there was a Jesuit-guided plan to assassinate Charles II and to hasten the succession of the Catholic James, duke of York (later James II). The account was completely fabricated. Unfortunately, however, ‘treasonous’ letters from Edward Coleman, secretary of the duchess of York, to the French Jesuit, François La Chaise, were discovered as a result of his accusations. The unexplained death of Sir Edmund Berry Godfrey, the judge to whom Tonge and Oates first told their story, was also attributed without evidence to the Catholics, and three innocent men were hanged for it. A frenzy of anti-Catholic hatred swept through England, resulting in the judicial murder of a number of Roman Catholic peers and commoners and in the arrest and persecution of many others. Oates enjoyed temporary eminence and even accused Queen Catherine of plotting to poison the king. In 1685, Oates was convicted of perjury, severely flogged, and imprisoned. Under William III he was released and pensioned. See J. Kenyon’s (1972) The Popish Plot. Sir Francis Pemberton, Judge (1625–10.6.1697). Educated St. Alban’s GS, Emmanuel College, Cambridge, BA 1644; Barrister Inner Temple (1654); Bencher (1670–1680); Reader (1673–1674); Sergeant (1675); Knighted (1975); Justice of Kings Bench (1679–1680); Chief Justice of Kings Bench (1681); Chief Justice Common Pleas (1682). After a debauched youth, he built up a large practice (Pepys refers to his wealth). As a judge, Pemberton had the distinction of being three times deprived of office, twice certainly because of fears as to his political reliability to the Crown. Source – Simpson (1984: 410). Thomas Pengelly. Born Moorifelds, May 16 1675. Son of Thomas Pengelly, of Finchley, Middlesex. Called to the bar Nov. 1700, and was dignified with the coif in 1710. Elected member for Cockermouth in both the parliaments of George I. Appointed as king’s prime sergeant June 24 1719, having been knighted in the previous month. On October 16 1726, he was appointed chief baron of the Exchequer. (State Trials, xvi. 140, 1330). Presided in that court for four and a half years. Considered to be a patient but firm and therefore ‘good’ judge. Apparently died from an infection he caught from prisoners while presiding over a court session.
Questions and Answers in the English Courtroom (1640–1760)
Mr. Justice Pratt, Judge (c. 1657–14.02.1725). Fellow Wadham College, Oxford, 1678, MA 1679; Admitted Inner Temple 1675; Barrister 1682. An able advocate and sound lawyer. Pratt became Sergeant in 1700; Knighted and admitted to Justice Kings Bench 1714; Chief Justice Kings Bench 1718. Reputed to have been a very good common law judge. His success must have been very considerable, as he was able to purchase the manor and seat of Wilderness (formally called Stidulfe’s Place) in the parish of Seale in Kent in 1703. On accession of George I, by the recommendation of Lord Cowper, Pratt was appointed a judge of the King’s Bench (Nov. 22 1715), and knighted. On the resignation of the Seals by Lord Cowper, he was appointed one of the Lord’s Commissioners, holding that office from April 18–May 12 1718. Three days later, Pratt was elevated to the post of Lord Chief Justice of the King’s Bench. He presided over the court for seven years. Sources – Foss (1870: 534) and Simpson (1984: 435). Edmund Prideaux (c. 1610s–9.08.1659). Belonged to an ancient and honourable family, according to Foss (1870: 539). Eminent lawyer in the time of the Commonwealth. Second son of eminent lawyer of same name. Father received the dignity of a baronet in 1622. Prideaux was called to bar at the Inner Temple 23 November 1623. Named Solicitor-General in October 1648 and Attorney General in April 1649, keeping the latter until his death. Prideaux made a large fortune – beside practice at the bar (worth about 5000l a year), he was a postmaster of the inland letters (which netted him a tidy 15,000l a year). William Prynne (c. 1600–24.09.1669). Educated at Oriel College, Oxford. 24.4.1618; BA 22.1.1621; Admitted Lincoln’s Inn 1621; Barrister 1628; Keeper of Records in the Tower 1661. A militant puritan pamphleteer rather than a lawyer – published around 200 books and pamphlets. Source – Simpson (1984: 436). Robert Raymond (Lord Raymond). Only son of Sir Thomas Raymond. Born in 1673. Father induced the society of Gray’s Inn to admit his son November 1 1682, when only nine years old. His call to the Bar did not take place till November 12 1697. Raymond was made solicitor-general 1709, and knighted. On October 14 1714, he was removed from his office on the advice of Lord Cowper. Sir Robert was elected for Ludlow in 1715, appointed Attorney General in May 1720, and elected for Helston in 1722. On January 31 1724, he was appointed a Judge of the King’s Bench. Raymond is most famous for his law reports, which commence in Easter Term 1694, when he was 20 years old, and more than 3 years before he was called to the bar (see below). They finish in Trinity Term 1732, a year before his death, thus extending over 38 years, during the reign of four sovereigns. They were published posthumously, ten years after his death. Source – Foss (1870: 548). Mr. Reeve. Possibly Thomas Reeve. Son of Richard Reeve, Esq., of New Windsor, who erected 4 almshouses in the parish. Admitted first a member of the Inner Temple, he transferred himself to the Middle Temple, and was called to the Bar by the latter society in 1713. He was made King’s Counsel as early as 1718, and soon afterwards Attorney General for the Duchy of Lancaster. He became a Bencher of the Middle Temple in 1720, and Reader in 1722. In 1733, Reeve was constituted a Judge of the Common Pleas, and knighted. He advanced to the head of that court in January 1736, dying one year later (January 13 1737).
Biographical details for participants
Sir Edmund Saunders, Law reporter (c. 1630–19.6.1683). Born at Barnwood of poor parents. Became an attorney’s entering clerk in Clements Inn. He entered the Middle Temple (Barrister 1664) and built up a large practice, excelling as a special pleader. His Reports (pleading in Latin, Reports in Law French) were first published in 1686 (first English edition 1722). They were the best of the period, and became glossed by Sergeant Williams to become Williams’ Saunders (1799) . . . Saunders drank heavily and exuded a strong and offensive odour (a contemporary described him as a ‘fetid mass that offended his neighbours at the bar in the sharpest degree’). An eccentric, he lived humbly in Butchers Row with the Earls until moving to more elegant surroundings in 1683 (having succeeded Pemberton as Chief Justice of Kings Bench, and being knighted). He died within six months. Source – Simpson (1984: 460). According to contemporary Roger North (p. 223), Saunders ‘was at first no better than a poor beggar boy, if not a parish foundling, without known parents or relations’. Saunder’s father died early, however, and his mother remarried. North goes on to describe Saunders as corpulent and beastly, offensive to his neighbours, intemperate in his habits . . . According to Fox, sometimes he was to be found acting for the defence in government prosecutions – as for Mr. Price in 1680, when indicted for attempting to suborn one of the witnesses to the Popish plot; and for the five Popish lords charged with high treason, of whom only Lord Stafford was tried. In 1681 he was counsel for the crown against Edward Fitzharris and Lord Shaftesbury, and in 1682 for the Earl of Danby, on his application to be bailed. In that year (1682) he was also elected a Bencher of his Inn. Source – Foss (1870: 586). Sir William Scroggs (? 1623–25.10.1683). Born Dedington, Oxfordshire; Educated at Oriel and Pembroke Colleges, Oxford; Admitted Gray’s Inn 1641; Barrister 1653; Sergeant and Kings Sergeant 1669; Justice Common Pleas 1676; Lord Chief Justice 1678. Rose from humble origins, a fact which may explain his anxiety to keep favour with whichever party seemed to be in the ascendant at Court. His conduct during the ‘Popish plot’ trials is notorious. At first his zeal to secure convictions knew no bounds. However, apparently in deference to the wishes of the Court, at the trial of Sir George Wakeman and others, he changed tack, discredited the prosecution witnesses, and consequently the defendants were acquitted. On 26 June 1680, by discharging the grand jury, he was instrumental in frustrating Shaftsbury’s attempts to indict the Duke of York. As a result, articles of impeachment were drawn against him, but eventually abandoned. Because of his great unpopularity he was replaced as Chief Justice (1681), but handsomely rewarded for his long servility to the Court. As a person he appears to have been coarse and loud. He was also a heavy drinker, and suffered from gout. His ability was as an orator rather than a lawyer, though his book on The Practice of the Courts Leet and Baron ran into four editions. Source – Simpson (1984: 466). Bartholomew Shower, Law Reporter (14.12.1658–4.12.1701). A Middle Temple man (made Barrister 1680) who became Recorder of London (1687–1688), and also reported King’s Bench cases (the original text of these reports is in the British Library, Landsdowne ms 1105) as well as cases in Parliament (published 1698). The publication of the latter was treated as a breach of privilege. Source – Simpson (1984: 474). Mr. Justice Tracy (Robert – c. 1655–11.09.1735). Eldest son of Robert, second Viscount Tracy in Ireland. . . Lived to age of 80. Called to the Bar by Middle Temple in 1680. In July
Questions and Answers in the English Courtroom (1640–1760)
1699, King William made him a Judge at the King’s Bench in Ireland, but soon translated him, on Nov. 4 1700, from that country to be a Baron of the Exchequer in England. Soon after the accession of Queen Anne, he was moved again, this time to the Common Pleas. Held that position for 24 years. Also selected by Anne and George I to be one of the Commissioners of the Great Seal on vacancies in the office of Lord Chancellor (14.09–19.10.1710 and also 15.4.–12.06.1718). Resigned due to ill health from his place on the bench (26.10.1726). Lived a further 9 years, on a pension of 1500l a year. Described as ‘a complete gentleman and a good lawyer of a clear head and honest heart.’ Source – Foss (1870: 669). Thomas Trevor (Lord Trevor) was the grandson of Sir John Trevor, of Trevallyn in Flintshire. His father, also Sir John, became Secretary of State to Charles II, and died in 1672. Born about 1659, Trevor entered Inner Temple in 1672 (just before the death of his father, who had been a Bencher of the Inn). He was called to the Bar November 28 1680. Trevir distinguished himself in the courts, and was quickly elected a Bencher (i.e. 1689), and then elevated to the post of Solicitor General (May 3 1692). He was knighted shortly after. He initially refused the Attorney Generalship (1693), but later accepted the office (June 8 1695). During his six years as Attorney General, he conducted the trials of those implicated in the Assassination Plot. Apparently acted with a fairness and candour that formed a remarkable contrast to the criminal proceedings in previous reigns. Worth noting that, in the progress of those trials, the act of parliament (St. 7 Will. III. C. 3) for regulating trials for treason/allowing prisoners the right to defence council came into operation. On the removal of Lord Somers in May 1700, Trevor declined the offer to be made Lord Keeper; but on June 28 1701, he accepted the more permanent place of Chief Justice of Common Pleas. Trevor was a member of one parliament only, that of 1695, in which he represented Plympton (State Trials, vols. Xii, Xiii.). On the accession of Queen Anne, he was re-appointed Chief Justice, and presided in the Court of Common Pleas during the whole of her reign. In the short interval between the chancellorships of Lords Cowper and Harcourt, from September 26– October 19 1710, he was entrusted with the Great Seal as First Commissioner. Trevor was called to the peerage December 31 1711, and given the title Baron Trevor of Bromham in Bedfordshire. Source – Foss (1870: 675). William Wilde (?1611–1679). Called to the Bar by the Inner Temple in 1637, Became a Bencher in 1652, and was elected Recorder of London November 3 1659. Considered to be one of the moderate party, he was returned as a member to the Convention Parliament that met in April 1660, and was immediately knighted on the king’s return. Called to the degree of sergeant at the second call after the Restoration. Further dignified with a baronetcy on September 13 in the same year. As Recorder he was named on the Commission for the Trial of the Regicides. On November 10 in the following year, he was made one of the King’s Sergeants, which position, with that of Recorder, he enjoyed until April 16 1668, when he resigned the latter office on being appointed a Judge of the Common Pleas. He remained there nearly five years, until he was moved to the King’s Bench (Jan. 22 1673). In February 1679, Green, Berry and Hill were tried for the murder of Sir Edmundbury Godfrey; and on April 16 Nathaniel Reading was tried for tampering with the king’s evidence; the conviction on both trials was founded upon the evidence of Bedlow, one of the primary witnesses of the Popish Plot. Justice Wilde took an active part in each, pronouncing sentence of death in
Biographical details for participants
the former, and saying that the conviction of the latter was ‘a very good verdict’. However, he then discovered that Bedlow had given false evidence. According to Burnet, he apparently told Bedlow that ‘he was a perjured man, and ought to come no more into court, but go home and repent’ (State Trials, VII, p. 222 & 261). On April 29 1679, his patent was revoked at the same time as those of three other judges – Vere Bertie, Thurland, and Bramston. He survived his dismissal only seven months, dying November 23 1679. Philip Yorke (Earl of Hardwicke). Politician and Chancellor (1.12.1690–6.3.1764). As a judge, Hardwicke can claim greatness. As a politician, he was a partisan, an intimate and influential confidant of the Pelhams, pursuing their interests and striving to uphold the principles of the Settlement of 1688. Born in Dover in 1690, where his father was an attorney. Educated at The Blin Beggars House at Bethnal Green. Remained there until he was 16, when he entered the office of Charles Salkeld, an influential attorney, who was the brother of Sergeant Salkeld. Whether this relatively modest early education was the consequence of his father’s choice or his lack of means is conjectural. Certainly his father was sufficiently well connected to persuade Salkeld to accept his son and sufficiently confident of his son’s abilities to plan for him a career at the Bar. Admitted to the Middle Temple in 1708, he was called in 1715. His legal study between those years was largely his own experience. The office, the courts and indigestible legal tomes were his mentors’ and his student notebooks, digests of cases that he heard in court demonstrate how rigorous, methodical and meticulous was his course of study. His success at the Bar was meteoric. Within five years of his call he was Solicitor General (1720) and within nine year he was Attorney General (1724). Inevitably, political influence was a sin qua non of that success, in his case an introduction to Macclesfield, to whom he always remained loyal, and his election as an MP in the Pelham interest (1719). His ability, industry and presence marked him out as a person supremely qualified to safeguard efficiently and intelligently the interests of the Government. Contemporaries described Yorke as handsome, engaging, charming, polite, dignified and courteous. In debate, he was remembered as an ‘agreeable eloquent speaker, but not without some little tincture of the pleader’. Source – Simpson (1984: 556). Notes Lord Chief Justice Next in rank to the Lord Chancellor. Solicitor General Law officer (in England, ranking next to Attorney General) who takes the part of the state or crown in suits affecting the public interest. First appointment of Solicitor General was 1461. In 1623, the Attorney General and Solicitor General were by royal warrant given precedence over all but the two most senior king’s sergeants, known thereafter as the king’s first (or ‘prime’) and second sergeants – (see Baker 1990: 188). According to Baker (1990: 188), a seventeenthcentury Attorney General could earn (besides his modest salary of 81 pounds) at least 6,000 pounds a year in fees. . . !
Questions and Answers in the English Courtroom (1640–1760)
King’s Counsel
Sergeant at law
Charles I appointed nine, and Charles II appointed thirty-one. Office not really needed. But this was an age for bestowing, or selling, titles, and the right of pre-audience was highly valuable to the recipient. Highly honourable to have the title. Institution of rank of King’s Counsel proved to be the principal death blow against the order of sergeants. In 1670 King Charles II delivered the damaging decision that the new officers took professional precedence over the sergeants (Baker p. 189 – see also Baker Sergeants at Law, pp. 488–490). Old branch of the profession. However, immediately prior to our period, became possible to earn a living from the law without becoming a sergeant or an attorney: ‘the other ‘men of court’ (e.g. the barristers) thereby grew into a new branch of the profession’ For more details relating to ‘sergeant at law’ see Baker (1990: 180).
Appendix 2
Sub-categories for ‘force’ field
COUNSEL = “w” = COMMISSIVES/DIRECTIVES caution, warn [= “w1”] [e.g. strongly counsel A against pursuing a certain course of action. S wants to enable A to prevent something bad happening to A (Wierzbicka 1987: 177)] threaten, coerce [= “w2”] [e.g. compel (or intimidate) A from/into pursuing a certain course of action. S wants to cause A to do (or stop doing) something] advise, recommend, counsel [= “w3”] [e.g. commend a certain course of action to A. S wants to convey information to A in a way that implies that S is acting in A’s interest (Wierzbicka 1987: 182)] REQUIRE = “c” = DIRECTIVES (requirements) command, require, order, instruct, direct [= “c1”] [e.g. cause A to do Y (by means of the SA). S wants (and expects) A to do something. Presupposes S has sufficient authority and that S and H are in an asymmetrical relationship] demand [= “c2”] [e.g. require/claim a certain course of action from A. S wants something to happen and s/he expects that A will be reluctant to comply. Consequently, carries great force that A is bound to recognise, even though A does/may not have to do what S says s/he wants A to do. Also requires a response of some description (see Wierzbicka 1987: 39, 70)] REQUEST = “r” = DIRECTIVES (requestives) desire, request [= “r1”] [e.g. try to acquire Y from A (by means of the SA). S wants Y to happen and wants to cause A to do it [note – ‘request’ seems more dispassionate than ‘desire’, the latter having a strength of feeling that often implies strong intention or aim (see Webster’s Collegiate Dictionary, 1993)] plead, beseech, implore, appeal [= “r2”] [e.g. try to acquire Y from A. S wants Y from A, but knows that s/he cannot cause A to do it. Implies an asymmetrical relationship; ‘plead’ appeals to A’s sense of reason and justice and ‘implore’ to A’s emotions, whilst ‘appeal’ seems to be somewhere between the two. In contrast, beseeching’ focuses on A’s action rather than any benefit following from that action (see Wierzbicka 1987: 54)]
Questions and Answers in the English Courtroom (1640–1760)
QUESTION = “q” = DIRECTIVES (questions) ask (about) [= “as”] (confirmation seeking) [e.g. seek to get A to confirm (some thing[s] about) Y. S wants A to say something that causes (some thing[s] about) Y to be confirmed.] inquire (into) [= “iq”] (generally information seeking) [e.g. solicit a verbal response from A which would cause S (and others) to know (some thing[s] about) Y. S wants A to say something that could cause someone to know Y. S believes A can provide specific information regarding Y, and wants to cause A to say what A knows. Generally implies a lack of knowledge and a desire to know. Consequently, often associated with a genuine search for (new) information] May be subdivided as follows: Ask for a polarity decision [= “iqp”] Ask for (or that B provide) a missing variable [= “iqi”] question, ascertain [= “it”] (classification seeking) [e.g. solicit (a) verbal response(s) from A in a formulaic and systematic way.] interrogate [= “tr”] (control/domination seeking ?) [e.g. (use force to) solicit verbal responses from A. S wants to cause A to say everything that S wants A to say. S assumes that A will/may not want to say certain things, but nevertheless believes that s/he can extract what s/he wants to know (by verbal pressure/threats). Consequently, implication that there will be more than one question (see Wierzbicka 1987: 71–72)] query/call into question [= “qy”] (reaction giving/clarification seeking ?) [e.g. respond to and/or seek clarification of something said by another. S wants to express (and, in so doing, make others aware of) doubts that S has regarding Y. May carry the implication that S has good reason(s) to think that there is something wrong with what is being said (see Wierzbicka 1987: 73, 75)]. Cf. ‘I don’t know if what person X is saying is right’; ‘I think what person X is saying may not be right’; ‘I think there may be something bad about what person X is saying’. entreat [= “qe”] (permission seeking) [e.g. seek to get A’s (verbal) permission for Y. S wants to do Y, but S needs A to (formally) approve/sanction it. Consequently, may imply an asymmetrical relationship (cf. ‘plead’ and ‘request’ above)] INFORM = “h” = REPRESENTATIVES Please note that, because ‘answer’ is basically an interactional phenomenon (e.g. it must be coherently linked with ‘question’ in order to be ‘appropriate’ – cf. Stenström 1984: 57), it does not fit easily into Searle’s classification. Consequently, I am using: 1. The “h” classification in the force-field (to indicate that, in the courtroom at least, part of the function of an answer is to inform/provide information), and 2. An additional a=“” field, which provides some details about the type of ‘answer’ given. This field and its possible values are listed below. answer [a = “”] [e.g. respond (usually verbally) to another SA requiring and/or expecting a (verbal) response in a way that (part) fills a perceived knowledge gap (see below). S wants to provide or wants
Appendix 2. Sub-categories for ‘force’ field
H to believe that s/he wants to provide (part or all of) the knowledge that A is seeking (cf. ‘respond’, where S also wants to say something in (or as a) response to something previously said but where, unlike ’answer’ there is not a built-in expectation to say something in response. See also Wierzbicka 1987: 374)] [(In)validate and identify-type responses (see below) provide/address requested information explicitly] (in)validate [= “inv/val”] identify [= “ide”]
[(e.g. provide polarity decision (explicitly)] [e.g. provide requested information (explicitly)]
imply [= “imp”]
[e.g. do not provide/express ‘yes’, ‘no’, or value for a missing variable explicitly, but answer in such a way that one can be inferred (cf. Stenström’s
supply [= “sup”]
[e.g. provide information which is not the requested information. S wants to say what s/he knows even if s/he does not possess exact information (see Stenström 1984)]
elaborate [= “elab”]
[e.g. provide additional/supporting information than explicitly requested. Includes amplifies (which emphasise the information given), qualifies (which explain/give/provide additional information/reason(s)) and expands (which develop/build on immediate given information). Please note that the superfluous information “elaborations” provide in relation to a Q can/often result in a new information exchange (Stenström 1984: 78)]
confirm (proposition) [= “ca”] [e.g. verbally respond to Q to establish that what has been proposed (by A) in that SA (something about Y) is true. S wants to say that (something about) Y is true] do not confirm/oppose [e.g. verbally respond to Q to establish that what has (proposition) [= “nca”] been proposed (by A) in that SA (something about Y) is false. S wants to say that (something about) Y is false] disclaim [= “dis”]
[e.g. verbally respond to Q to establish inability to provide requested information/answer. S wants to signal his/her compliance but inability to provide requested information (cf. Stenström 1984: 77)]
[“Evades” and “refusals” (see below) are ‘conscious avoidance manoeuvres’, e.g. S does not want to provide (part or all of) the knowledge that A is seeking. Both indicate a level of non-compliance on the part of S (cf. Stenström 1984: 77)] evade [= “ev”]
do not provide/express ‘yes’, ‘no’, or value for missing variable, and do not answer in such a way that one can be inferred. S wants to signal his/her non-compliance]
Questions and Answers in the English Courtroom (1640–1760)
refuse to answer [= “na”]
[e.g. do not give a (verbal) answer even though the SA requires and/or expects a verbal response. S wants to signal his/her (total) non-compliance]
Please note that some of the following can also (but may not necessarily) be used to ‘answer’ a preceding Q: concur, agree with [= “pr”] [e.g. be (or come to be) of the same opinion as A. S wants to say that she (now) thinks the same as A. Generally implies some (prior) deliberation (see Wierzbicka 1987: 116) and a willingness on the part of S to accept A’s position/proposition (cf. ‘admit’ and ‘concede’ below)] admit [= “ak”] [e.g. disclose/accept/own up to something (proposed by A) that has been (or, in different circumstances, might have been) concealed. S does not want to say what is not true. Note that one tends to ‘admit’ when there seems to be no other way of avoiding saying something that is untrue – see Wierzbicka 1987: 313)] concede [= “cc”] [e.g. comply with or yield to A’s demands/questions about Y (to a limited extent). S only wants to say some of the things that A would want S to say about Y: Namely, as much as the evidence A presents (against S) forces S to say. Consequently, there is no moral imperative (on S’s part) to tell the truth (cf. ‘admit’ above – see also Wierzbicka 1987: 316). Suggestive of an adversarial relationship] refuse, withhold, decline [= “f ”] [e.g. do not give or grant. S wants to prevent A’s (next) course of action] allow, consent, agree to [= “mt”] [e.g. give or grant. S does not want to stop A from doing what s/he wants to do (Wierzbicka 1987: 111) and/or S enables A to pursue this (next) course of action] negotiate [= “cd”] [e.g. confer with another (in an attempt) to bring about a mutual resolution. S wants to say something that will cause A to (voluntarily) amend his/her opinion/standpoint about Y to one that is closer to his/her own opinion/standpoint] disclose, divulge, reveal [= “i”] [e.g. state something to A that S knows A does not (or will not otherwise) know. S wants to cause A to know something (that A would not otherwise know) in a way that leaves no room for doubt. Sense in which S wants to go beyond stating minimal information (cf. ‘state, testify’). Nevertheless, the implication that ‘the message conveyed concerns an established fact that it is accurate, exact, and reliable’ remains intact (see Wierzbicka 1987: 302)] recount, relate, describe [= “t”] [e.g. say what happened in a way that recreates the past. S wants others (who would not otherwise know) to know what happened (i.e. the chain of events leading to Y). Consequently, there is a strong link with reality (cf. ‘narrate’ – see Wierzbicka 1987: 292)] state, testify (inc. in a formulaic manner typical of courtrooms) [= “s”] [e.g. say what is “true”. S wants to say what S knows to be “true” (however, S is not necessarily
Appendix 2. Sub-categories for ‘force’ field
reacting to or anticipating other people’s utterances). Tend to convey a sense of neutrality/ objectivity (cf. “assert” and “insist”, and see Wierzbicka 1987: 330, 331)] assert, affirm, claim [= “af ”] [e.g. declare some knowledge (about a person/event) in a (markedly) positive manner. S wants A to be aware that S “knows” that what she is saying is true and wants (to persuade) others to think the same (Wierzbicka 1987: 321–323). Note – presupposes an opposition from other people (Wierzbicka 1987: 330)] insist, swear [= “is”] [e.g. maintain very firmly and/or persistently. S wants to cause others to perceive something that S (believes and) is prepared to adhere to even though s/he is aware that others resist his/her position] stress, emphasise, point out [= “ss”] [e.g. draw attention to something (by means of SA). S wants to put across something to A/others or bring something to their attention that s/he feels (1) is important, and/or (2) they may have otherwise failed to pay attention to had s/he not done so. Note – S does not anticipate any resistance] clarify, spell out [= “cl”] [e.g. explain (the finer details of) something in a very specific manner. S wants to cause others to understand something by being extremely specific in his/her explanation of it] remind [= “rm”] [e.g. cause A to remember. S wants to revive A’s awareness of a matter A knows about and, by so doing, direct A’s attention to it once more (Wierzbicka 1987: 344)] excuse [= “pe”] [e.g. give extenuating circumstances for X’s guilt. S wants to persuade others not to punish X for X’s bad act. Note, therefore, that there is a recognition of guilt (see Wierzbicka 1987: 231)] confess [= “co”] [e.g. tell or make known (as something wrong or damaging to oneself ) (MWCD, 1993). S feels that s/he has to say/admit to something bad about him/herself. May imply a sense of guilt and/or a compulsion to bring Y to the attention of others] deny, refute, reject, dispute, disagree [= “d”] [e.g. argue against Y (proposed by A/third party). S wants to cause A/others to think that Y is not true. In this context, the purpose of Y tends to be to damage S in some way (e.g. S’s previous testimony, reputation, etc.). Consequently, these SAs invite the inference that those holding the opposing opinion to S are/may be lying. For this reason, they also tend to suggest personal involvement on the part of S] contest, challenge, counter, contradict [= “cha”] [e.g. convey why/that Y (proposed by A/others) cannot be right. S does not want A/others to say something that S knows cannot be right/might be damaging to S/others. Not as concerned with the possibility of falsehood in the same way as the above seem to be, but, rather, with showing that/why the previous utterance cannot be right (see Wierzbicka 1987: 131–132)]
Questions and Answers in the English Courtroom (1640–1760)
defend, justify, vindicate [= “j”] [e.g. ward off/maintain a point of view/(against) attack (CD, 1993). S does not want others to think bad things about S/Y. May contain the implication that someone has previously been saying ‘bad things’ about S/Y] sum up, summarise, recapitulate [= “su”] [e.g. say some of the same things in a different way. S wants to say something that would make it easy for people to think about a particular matter and, importantly, for them to think about it in the way in which S thinks about it (Wierzbicka 1987: 310)] SENTENCE = “v” = DECLARATIONS (verdictives) accuse, charge [= “ac”] [e.g. charge (inc. officially) with a fault or offence (Chambers Dictionary, 1993). S wants A to know that s/he is being (formally) indicated in Y. S wants to establish A’s guilt/innocence so that, by so doing, A will be convicted/acquitted. In the case of “accuse’, S believes (and wants to signal her belief) that A is guilty] sentence, convict [= “ps”] [e.g. pronounce a judgement/punishment (legally determined by a court/judge). S wants to signal that person X is to be (legitimately) punished for doing Y. Consequently, contains a presupposition of guilt (see Wierzbicka 1987: 240)] absolve, acquit, pardon [= “pp”] [e.g. release someone from (the threat of) a legal punishment. S wants to signal that person X will not be punished] EXPRESS = “K” = EXPRESSIVES lament, rue [=“ld”] [e.g. express disappointment/sorrow/anger about (a course of action taken by) A. S wants A (and others) to be aware of his feelings regarding A’s behaviour] reprimand, rebuke, admonish [= “rb”] [e.g. express a negative judgement about an action of A, while presuming that A should understand why his/her action is bad (Wierzbicka 1987: 139). S wants to cause A’s actions to stop] condemn, criticise, censure [= “b”] [e.g. express disapproval about and/or declare a person/action to be wrong. S wants to assign responsibility for Y to X] commend, credit [= “cm”] [e.g. express approval of a person/action. S wants A to know that he is pleased by A’s behaviour/actions] protest, object [= “o”] [e.g. express a negative view about somebody else’s action. S does not want the action to continue and hopes to cause the action to stop] apologise [= “ap”] [e.g. express remorse for Y. S wants to signal to A/others that s/he regrets his/her be-
Appendix 2. Sub-categories for ‘force’ field
haviour/involvement in Y. There may be an admission of guilt or potential wrong doing. Alternatively, the SA may be used as a face-saving device to mitigate the potential challenge of any SA that follows. In all instances, however, S is speaking on his/her own behalf] reckon, surmise, suppose, posit [=“kn”] [e.g. express a (firmly-held) belief or conviction. S wants A/others to be aware that S believes Z to be true] exclaim [= “e”] [e.g. vent a strong emotion (. . . shock, surprise, indignation. . . ) (Chambers Dictionary, 1993). S wants others to know S’s strength of feeling(s)]
Miscellaneous (re)assure, promise [=“re”] = COMMISSIVE [e.g. dispel A/others’ apprehensions regarding and/or establish that an event/person/situation will occur. S wants to put A/others’ mind[s] at rest about (or restore A/others’ confidence in/that) Y]
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Author index
A Allan, K. 125 Anzilotti, G. 28 Aqvist, L. 30–31 Archer, D. & Culpeper, J. 106 Archer, D. 8, 17–18, 99–102, 220 Arnovick, L. 128 Atikinson, M. & Drew, P. 51–52 Austin, J. 36–39 B Bach, K. & Harnish, R. 125–126 Ballmer, T. & Brennenstuhl, W. 125 Barnbrook, G. 105–106, 131–132 Beattie, J. 85–91 Belnap, N. 29–30 Bennet, W. L. & Feldman, M. 83 Biber et al. 24–25, 188 Biber, D. & Finegan, E. 11 Birnbaum, H. 7 Boyer, P. & Nissenbaum, S. 13, 99 Brown, P. & Levinson, S. 28, 138 Bullokar, W. 60
Doty, K. & Hiltunen, R. 99–101 Drew, P. 196, 208 F Fairclough, N. 16 Fielding, H. 89 Foss, E. 114 Frank, J. 27–28 Freed, A. 44 French, J. & Raven, B.
17, 154
G Gazdar, G. 35 Goody, E. 153 Greenbaum, S. & Quirk, R. 27, 195 Grice, H. P. 57 Grimshaw, A. 8 Groenendijk, J. & Stokhof, M. 29, 53
C Caffi, C. 34 Cairns, D. 94–95, 292 Carletta et al. 124–125, 129–130 Corfield, P. 113–114 Coulthard et al. 49, 95–96 Crystal, D. 28 Culpeper, J. & Kytö, M. 95–96
H Hamblin, C. 30 Hargrave, F. 12 Harris, S. 76–78, 83–84, 148–149 Harrison, W. 113 Hawkins, W. 88 Hawles, Sir J. 92 Henderson, R. 61–62 Hiltunen, R. 95, 99, 186 Hudson, R. 31–32 Jacobs, A. & Jucker, A. 6–7, 10–11 Jucker, A. & Taavitsainen, I. 128 Jucker, A. 10–11
D Danet et al.
K Katz, J. & Postal, P. 31
81
Questions and Answers in the English Courtroom (1640–1760)
King, G. 112–113 Kryk-Kastovsky, B. 95–98 Koskoff 187 L Labov, W. & Fanshel, D. 28–29, 31 Landsman, S. 206 Langbein, J. 12–14, 86, 90, 95 Leech, G. 4, 20, 40, 64, 69, 107, 278 Lemmings, D. 117, 293 Levinson, S. 4, 102, 127 Loftus, E. & Palmer, J. C. 77 Loftus, E. 218 Lowndes, S. 80–82 Luchjenbroers, J. 75–78, 82 Lyons, J. 32–33 M McEnery, T. & Wilson, A. Mey, J. 4, 42 Moeschler, J. 38, 50, 59
105
R Raumolin-Brunberg, H. 111, 117, 119 Riley, R. G. 40–48, 52–57 Rissanen, H. 61–66, 143–144 S Sacks et al. 45 Sadock, J. & Zwicky, A. 31 Saeed, J. 34, 40 Salmon, V. 61–63, 65 Schegloff, E. 45–46 Schrott, A. 41–42 Schwenter, S. & Traugott, E. 7–8 Searle, J. 36–43, 125–126, 161, 288 Shuy, R. 85, 155 Sinclair, J. & Coulthard, R. 47, 122–124 Stein, D. 62–63 Stenström, A.-B. 28–29, 47–51, 55–56, 60, 122–125, 129–130 Stubbs, M. 123, 134
N Nevalainen, T. & Raumolin-Brunberg, H. 111–112 Nevalainen, T. 113
T Thomas, J. 4, 40, 256, 274 Tiersma, P. 151, 160, 184, 209
O O’Barr, W. 83
V Verschueren, J. 5, 42
P Philips, S. 55, 60, 139, 142 Piazza, R. 34 Prest, W. 117
W Walker, A. 56, 145, 150, 153, 172, 241 Wierzbicka, A. 43, 52, 59, 125–127 Wikberg, K. 60–71 Stygall, G. 84 Woodbury, H. 78
Q Quirk et al. 27, 66
Subject index
A Act of Settlement 1701 88 activity type 56, 73, 124 courtroom talk as 73–76, 98, 242, 256 ambiguity 58, 128, 256 annotation 15, 20, 106–107, 290–291 notion of ‘addressee’ 108–110 annotation categories see also ‘answer categorisation’ and ‘question categorisation’ (re)initiations 167–172, 176, 189, 200–204, 213, 229, 267–270, 273 ‘follow up’ 122, 167, 293 ‘follow up-initiation’ 122–123, 167, 169, 180–181, 190, 228 ‘fuzzy’ nature of 120 ‘initiation’ 122, 167, 207, 210, 214, 228 ‘report’ 122, 167, 228, 242 ‘response’ 122, 169, 226, 228, 245–246 ‘response-initiation’ 122–123, 167, 169, 184, 211, 228, 269 ‘force’ 125–129 ‘form’ 130–131 ‘interactional intent’ 20, 51–52, 120–125, 165–174, 267, 282, 293 Qs and As 19, 55–59, 68–70, 120–131, 280, 291 answer(s) 17–18, 24, 26, 31, 167, 182, 216, 226, 246, 280 as narrative 83–84, 144, 101–102, 207 assumptions relating to the modern courtroom 242
characteristics of 50, 53–54, 59–60, 69, 123, 129 definition of 70 function(s) of 123, 129, 240–243 negative interpretation of 82–83 relationship to role 240–245 answer categorisation non-verbal/‘refuse to answer’ 123, 130 ‘imply’ 130, 228, 233, 240, 248, 251, 253–254, 256 ‘(in)validate’ 130, 241, 248, 254, 255 ‘disclaim’ 130, 248–250, 255–256, 262 ‘do not confirm’ 130, 233, 262 ‘elaborate’ 130, 182, 191, 208, 235–236, 248, 255, 262, 264 ‘evade’ 130, 248–249, 260, 262 ‘challenge’ 243, 251, 257, 262 ‘confirm’ 130, 182, 191, 209, 211, 217, 241 information-filler (‘identify’) 53–54, 82–83, 98, 130, 191, 240–241, 247–248, 253, 255, 262 ‘supply’ 130, 195, 232, 242, 250, 255 C context 4–11, 18–19, 31, 41, 104, 106 historical context 110–111, 128 Conversation Analysis (CA) 44–46 preferred/dispreferred distinction 45–46 Cooperative Principle 57, 242
Questions and Answers in the English Courtroom (1640–1760)
Gricean cooperativeness versus social cooperativeness 58, 248 corpus linguistics 18–19 techniques 15, 105–106, 290–291 corpora see also Sociopragmatic Corpus Corpus of Early English Correspondence (CEEC) 111–113, 119 Corpus of English Dialogues (CED) 14–18, 106–107, 289 British National Corpus (BNC) 109 Old Bailey Sessions Papers 13, 284 Court 71–72, 88, 139, 178–179, 189–192, 236, 262–264, 276 Court officials 226–228 D defendant(s) 74–76, 85, 87, 93–94, 103–104, 169–171, 176–177, 192–196, 200–201, 230, 262–266, 268–271, 273–279, 292 as questioners 102–103, 153–154, 163, 170, 173, 183, 194, 223–224, 226, 229–239, 286 as respondents 228 disadvantages faced by 88–89, 193–195, 239, 279 deference markers 231, 276 strategic use of 236 disambiguation process 8, 128 Discourse Analysis (DA) 46 criticisms of 48 Birmingham School of 46–48, 122–123 exchange patterns 52 IRFs 47, 123–124 discourse strategies 16, 20, 52, 96, 103, 173, 287, 293 avoidance techniques 98, 250–251 character assassination tactics 259–261, 264–266, 287 counter-strategies 155, 233–234, 235–236, 240–243, 245–246, 257–266, 279, 284, 287, 293
defensive strategies 2, 75, 81–85, 100–101, 227, 257, 265, 287 interrogation strategies 1–2, 77, 83–85, 94, 159–160, 175–221 non-questioning strategies 267–280 discursive norms 16–17, 165–173, 224–229, 285, 291–292 identification of 188, 284 changes to 197, 201–202, 220, 246, 248, 282–284
E English courtroom 73–104, 194 adversarial nature of 75, 77, 195, 206, 221, 246, 256, 263, 266, 283–285 blurring of sequences 161–162, 211, 218, 221, 284 centrality of questioning 96 ‘citizen’ prosecutor 86–87, 90–91 cross-examination 75, 79, 81, 84, 93–95, 156, 158–161, 208–209, 256–257, 284 distinction between ‘knower’ and ‘teller’ 84, 148, 182, 261 emerging ‘rules of etiquette’ 293 examination-in-chief 74–75, 77, 79, 81, 156, 158–161, 187, 209 examiners 16, 52, 78–79, 86, 102, 139, 151–152, 175, 213, 282 guilt bias 1, 2, 75–76, 85, 88, 100, 102, 160, 162, 220, 242–244, 257, 271–272, 283, 285 history-based studies 1, 85–98, 170–171, 199–200, 238, 284–285, 292 linguistic-based studies 74–85, 95–99 measuring (a)typicality 292 modern 74–85, 150, 160–161, 184, 187, 195, 208–210, 218–219, 256, 286 multiple ‘tellers’ 84, 261
Subject index
presumption of innocence 75, 85, 88, 90, 162, 220 standing mute 227, 275 F face threatening act (FTA) 137–138 force 20, 70–71, 193 see also ‘categories’ and ‘macro speech acts’ ambiguity of 40, 127, 147 and punctuation 152 ‘challenge’ 234 cumulative nature of 291 IFIDs 42 Illocutionary force 35, 38–39, 42–43, 125, 128, 267, 279 multiple forces 43, 51, 71, 269 form 6, 19, 20, 37, 44, 51, 70, 267 see also ‘categories’ and ‘interrogative’ G grammar 23–24 grammaticalization 4, 7 Gricean Maxims 54, 56–59, 98, 102 see also Cooperative Principle H Historical sociolinguistics 106 I initiator 150–151, 165, 168, 170, 172–173, 176–178, 202, 228, 230, 243, 287 interrogative(s) 17, 19–20, 24–26, 29–30, 38, 42, 135–136, 140–142, 158–159, 189, 162–163 and modals 64, 78, 82, 99 wh-interrogatives 140–141, 182–183, 185, 187, 289 disjunctive 24, 80 do-periphrasis 25, 61–62, 64, 143 frequency 138–140 indirect interrogatives 26–27, 146–147, 231
non-periphrastic inversion 143–145 multi-functionality of 140–142, 156–157, 163, 165, 197 polar 24, 49, 77, 80, 139, 144–146, 157–158, 181–182, 189, 194, 206, 213–216, 218, 231, 248 some-any-ever 64, 191 tagged declaratives 24–25, 65–66, 77–78, 139, 143, 154, 260 wh- 25, 49, 63–64, 77–78, 81, 99, 139–140, 155–158, 181–183, 185–187, 189, 205–207, 210, 215, 219, 231, 247–248 J Judge Jeffries 97–98, 179–180, 184–188, 252–253 see also ‘Recorder’ judge(s) 97, 75–76, 86–87, 90–91, 93, 151, 167–173, 176–178, 180–184, 192–197, 200, 220, 224, 247–253, 268–272, 282 as respondents 177, 228–230 neutrality of 184, 196, 205, 218–220, 283 jury 75–77, 83, 86–87, 161, 208, 218, 270 L Law as a profession 117, 293 lawyer(s) 1, 2, 74, 77, 79–82, 85, 90, 93, 155, 160, 253–261, 289 absence of 85–88, 92, 169, 178 constraints upon 92–93, 162, 168, 204, 214, 257 defence counsel 170–172, 177, 202–205, 213–218, 236–237, 254–257, 264–266, 292 defence lawyers as respondents 203 (expanding) role of 159, 161, 202–203, 220, 238, 246, 265–266, 293 impact on courtroom procedure 91–94, 195, 283–284, 293
Questions and Answers in the English Courtroom (1640–1760)
introduction of 90–92, 199, 213, 220, 283, 292 prosecution counsel 169, 172, 200–203, 205–213, 237, 276–277 strategies relating to 161–162, 195–221, 236–237 M macro speech acts see also ‘question(s)’ command 103–104, 153–155 counsel 126–127, 172, 194, 200–201, 267–269, 277–279, 287 express 126–127, 136–137, 200, 268 inform 147, 193–195, 197, 200, 268–269 notion of ‘pragmatic space’ 128 require 126–127, 146, 172–173, 200–201, 207–208, 210, 267–272, 276, 280, 287, 292 request 38, 43, 126–127, 136, 146, 172–173, 200–202, 204, 229–230, 242, 267–268, 273–277, 279–280, 287, 292 sentence 126–127 P Pendle Witch Trials 13 perjury 86, 89 Popish plot 91, 250, 269 power 16–17, 54, 103, 150, 153–154, 165, 172–175, 197, 202, 224, 231, 232, 243, 289 ‘coercive’ 2, 154, 243, 286 ‘divinely sanctioned’ 17, 239, 277 ‘expert’ 154, 244, 286 imbalance of 76, 79, 82, 174, 239, 277–278, 287 ‘legitimate,’ 2, 76, 85, 103, 143, 154, 163, 243, 286 ‘supernatural’ 17 Pragmatics 3–7, 18, 24 definition of 3–6 historical 5–7, 18–19, 106, 290–291
data and methodological problems 10–16 diachronic pragmatics 6–7 North American approach 7–8 pragmaphilology 6–7, 8 pragmatic equivalence 7 prisoner see ‘defendant’ Prisoner’s Counsel Act 1836 93–94, 261, 285 Q question(s) 1, 2, 11, 16, 23, 84–85, 126–127, 172, 180–181, 193, 200–202, 205, 213, 221, 237, 280, 283, 288–289 accusatory element within 43, 77, 79, 84, 143, 199, 218, 233, 265 as commands 153–155 as part of questioning sequence(s) 156–158, 162, 181, 185–186, 209, 212–213, 234–238, 255–256, 283 categorial view of 29–30, 288 consequences of word choice 77, 82, 218 conducivity of/control element within 26, 31, 33–34, 52–53, 74, 78–79, 81, 96–97, 103, 135, 139–140, 143, 151, 150–153, 155–156, 160, 163, 179, 186, 188, 190, 195, 199, 209, 221, 232, 282, 283, 286, 289 declarative questions 28–29, 65–66, 78, 81, 138–139, 151–153, 187–188 definitions of 41–43, 45, 288 diachronic view of 60–68, 136–163 function of 6, 74, 11, 36, 44, 49, 67, 77, 79–80, 84, 120, 125, 129, 136, 157–158, 197, 266 imperative-epistemic view of 30–32, 288 importance of form 51, 288 in narratives 148–150 intonation 25, 28
Subject index
leading questions 79–81, 186–188, 195 logical properties of 32–35 negation 25, 33, 64–66, 78, 99, 151, 155, 190–191, 233–234, 256 paraphrased meaning of 31–32 presupposition of 32, 34–36, 195, 207, 217–219, 260–261, 265, 270 propositional view 30, 288 relationship to answers 53, 81–84, 103, 221, 240, 289, 296 relationship to context 35–36, 139, 185–186, 267, 281–282, 288–289 repeats 208, 249 rhetorical questions 27–28, 31, 67, 102–103, 137–138, 194–195, 201, 251, 289 routinized questions 142–145, 179, 191–192, 292 question categorisation 19–20, 44, 48–50, 96 ascertain/question 129 clarification-seeking 43, 136, 183–184, 194, 197, 199, 211, 231 confirmation-seeking (‘ask about’) 125, 129, 136, 157, 187, 197, 199, 208–209 information-seeking (‘inquire (into)’) 43, 125, 129, 136, 160–161, 183, 181, 191, 194, 197, 199, 206–208, 231, 260 prompters 96, 195, 207 Q-moves 48–50 query/call into question 129, 183, 194, 211–212, 216, 235, 260
R reality paradigms 58, 238, 272 conflicting 9, 100, 239, 284 Recorder 86, 139, 151 see also ‘Judge Jeffries’ active involvement of 171, 179–180 role categorisations 115–116
S Salem Witchcraft Trials 8–10, 13, 17, 58–59 linguistic research relating to 95, 99–103, 156, 271 scholarly ‘objectivity’ 95 Sociopragmatic Annotation Scheme 104, 106–120 aim of 109 benefits of 119–120 delicacy of categorisation 118 description of fields and their values 111–116 implementation issues 116–118 role categorisations 115–116 sources of information 119 Sociopragmatic Corpus (SPC) 94, 106–107, 291–293 (a)typicality of Ambrose trial 178, 230, 292 (a)typicality of Charles trial 269, 277–279, 287, 292 Baker, John (trial of) 215–216, 226 Captain Ambrose (court-martial of) 171, 178–179, 189–192, 196, 213, 225, 234–236, 246, 262–264 Cellier, Elizabeth (trial of) 137, 179–180, 185, 193, 195–196, 220, 242, 249, 251 Charles I (trial of) 14, 17, 89–90, 238 39, 268–269, 271, 273, 273–274 Coleman, Edward (trial of) 90–91, 149, 156–157, 181–182, 228, 231, 242, 249–250, 269–272 description of SPC 107 Dangerfield (trial of Elizabeth Cellier) 137–138, 195–196, 251 Francia, Francis (trial of) 141–143, 145, 148, 150, 151, 158–162, 208–209, 214–215, 232–234, 254–260
Questions and Answers in the English Courtroom (1640–1760)
Giles, John (trial of) 152, 154–155, 179–180, 185–188, 207, 210, 251–252 Greenwood, Bartholomew (trial of) 189, 207–211, 226 Harrison, John (trial of) 226–227, 273 Hewet, Dr. John (trial of) 201, 273, 276, 279 Layer, Christopher (trial of) 147, 183–184, 205, 212–213, 225–226, 236–238, 262, 264–266 Macguire, Connor Lord (trial of) 194–195, 243, 273 Mordant, John (trial of) 155–156, 232, 250–251, 273, 276–277, 279 Moders, Mary (trial of) 150 Oates, Titus (trial of Edward Coleman) 91, 96–97, 149–150, 157, 181–182, 249–250, 262, 269–270, 272 participant roles evidenced within 166–167 Rookwood, Ambrose (trial of) 148–149, 216–219, 251 Slingsby, Henry (trial of) 273, 279 Sloper, William (trial of) 226 Townshend, Lord (trial of Francis Francia) 233–234, 255, 257–258, 262 speech act (SA) 37–39, 123, 285 appropriacy 47, 54 diachronic analyses of 128, 285 felicity conditions 37, 42–43
IFIDs 274, 278–279 indirect SAs 37–38 performatives 36–37, 128 SA verbs 39–40, 43, 125–126 taxonomies of 39–41, 43, 125 theory of 34, 36–41, 47, 125–128 State Trials 12, 14, 93, 98 status 16, 77, 112–114, 116–118, 232, 258–259, 277, 279–280, 287, 292, 293 ‘commoners’ 114, 117 ‘gentry’ 113, 116, 279 ‘middling’ 114 ‘nobility’ 113 ‘professional’ 113–114, 116–117 T Treason Act 1696 92, 170, 257 trial(s) fragmented nature of 261–262 ordinary 86, 90, 284 treason 87–88, 90–93, 227, 273, 279–280, 284, 287 W witnesses 74–77, 81–88, 150–151, 161, 167, 173, 176, 178–192, 200, 203, 205–218, 224–226, 229–239, 245–266, 282–284 as crime narrative givers 96, 101–102, 148–149, 187, 214–215 for the Crown 86, 89, 254–255, 259 for the defence 86, 89, 259
In the Pragmatics & Beyond New Series the following titles have been published thus far or are scheduled for publication: 90 KENESEI, István and Robert M. HARNISH (eds.): Perspectives on Semantics, Pragmatics, and Discourse. A Festschrift for Ferenc Kiefer. 2001. xxii, 352 pp. 91 GROSS, Joan: Speaking in Other Voices. An ethnography of Walloon puppet theaters. 2001. xxviii, 341 pp. 92 GARDNER, Rod: When Listeners Talk. Response tokens and listener stance. 2001. xxii, 281 pp. 93 BARON, Bettina and Helga KOTTHOFF (eds.): Gender in Interaction. Perspectives on femininity and masculinity in ethnography and discourse. 2002. xxiv, 357 pp. 94 McILVENNY, Paul (ed.): Talking Gender and Sexuality. 2002. x, 332 pp. 95 FITZMAURICE, Susan M.: The Familiar Letter in Early Modern English. A pragmatic approach. 2002. viii, 263 pp. 96 HAVERKATE, Henk: The Syntax, Semantics and Pragmatics of Spanish Mood. 2002. vi, 241 pp. 97 MAYNARD, Senko K.: Linguistic Emotivity. Centrality of place, the topic-comment dynamic, and an ideology of pathos in Japanese discourse. 2002. xiv, 481 pp. 98 DUSZAK, Anna (ed.): Us and Others. Social identities across languages, discourses and cultures. 2002. viii, 522 pp. 99 JASZCZOLT, Katarzyna M. and Ken TURNER (eds.): Meaning Through Language Contrast. Volume 1. 2003. xii, 388 pp. 100 JASZCZOLT, Katarzyna M. and Ken TURNER (eds.): Meaning Through Language Contrast. Volume 2. 2003. viii, 496 pp. 101 LUKE, Kang Kwong and Theodossia-Soula PAVLIDOU (eds.): Telephone Calls. Unity and diversity in conversational structure across languages and cultures. 2002. x, 295 pp. 102 LEAFGREN, John: Degrees of Explicitness. Information structure and the packaging of Bulgarian subjects and objects. 2002. xii, 252 pp. 103 FETZER, Anita and Christiane MEIERKORD (eds.): Rethinking Sequentiality. Linguistics meets conversational interaction. 2002. vi, 300 pp. 104 BEECHING, Kate: Gender, Politeness and Pragmatic Particles in French. 2002. x, 251 pp. 105 BLACKWELL, Sarah E.: Implicatures in Discourse. The case of Spanish NP anaphora. 2003. xvi, 303 pp. 106 BUSSE, Ulrich: Linguistic Variation in the Shakespeare Corpus. Morpho-syntactic variability of second person pronouns. 2002. xiv, 344 pp. 107 TAAVITSAINEN, Irma and Andreas H. JUCKER (eds.): Diachronic Perspectives on Address Term Systems. 2003. viii, 446 pp. 108 BARRON, Anne: Acquisition in Interlanguage Pragmatics. Learning how to do things with words in a study abroad context. 2003. xviii, 403 pp. 109 MAYES, Patricia: Language, Social Structure, and Culture. A genre analysis of cooking classes in Japan and America. 2003. xiv, 228 pp. 110 ANDROUTSOPOULOS, Jannis K. and Alexandra GEORGAKOPOULOU (eds.): Discourse Constructions of Youth Identities. 2003. viii, 343 pp. 111 ENSINK, Titus and Christoph SAUER (eds.): Framing and Perspectivising in Discourse. 2003. viii, 227 pp. 112 LENZ, Friedrich (ed.): Deictic Conceptualisation of Space, Time and Person. 2003. xiv, 279 pp. 113 PANTHER, Klaus-Uwe and Linda L. THORNBURG (eds.): Metonymy and Pragmatic Inferencing. 2003. xii, 285 pp. 114 KÜHNLEIN, Peter, Hannes RIESER and Henk ZEEVAT (eds.): Perspectives on Dialogue in the New Millennium. 2003. xii, 400 pp. 115 KÄRKKÄINEN, Elise: Epistemic Stance in English Conversation. A description of its interactional functions, with a focus on I think. 2003. xii, 213 pp. 116 GRANT, Colin B. (ed.): Rethinking Communicative Interaction. New interdisciplinary horizons. 2003. viii, 330 pp.
117 WU, Ruey-Jiuan Regina: Stance in Talk. A conversation analysis of Mandarin final particles. 2004. xvi, 260 pp. 118 CHENG, Winnie: Intercultural Conversation. 2003. xii, 279 pp. 119 HILTUNEN, Risto and Janne SKAFFARI (eds.): Discourse Perspectives on English. Medieval to modern. 2003. viii, 243 pp. 120 AIJMER, Karin and Anna-Brita STENSTRÖM (eds.): Discourse Patterns in Spoken and Written Corpora. 2004. viii, 279 pp. 121 FETZER, Anita: Recontextualizing Context. Grammaticality meets appropriateness. 2004. x, 272 pp. 122 GONZÁLEZ, Montserrat: Pragmatic Markers in Oral Narrative. The case of English and Catalan. 2004. xvi, 410 pp. 123 MÁRQUEZ REITER, Rosina and María Elena PLACENCIA (eds.): Current Trends in the Pragmatics of Spanish. 2004. xvi, 383 pp. 124 VINE, Bernadette: Getting Things Done at Work. The discourse of power in workplace interaction. 2004. x, 278 pp. 125 LERNER, Gene H. (ed.): Conversation Analysis. Studies from the first generation. 2004. x, 302 pp. 126 WU, Yi’an: Spatial Demonstratives in English and Chinese. Text and Cognition. 2004. xviii, 236 pp. 127 BRISARD, Frank, Michael MEEUWIS and Bart VANDENABEELE (eds.): Seduction, Community, Speech. A Festschrift for Herman Parret. 2004. vi, 202 pp. 128 CORDELLA, Marisa: The Dynamic Consultation. A discourse analytical study of doctor–patient communication. 2004. xvi, 254 pp. 129 TABOADA, María Teresa: Building Coherence and Cohesion. Task-oriented dialogue in English and Spanish. 2004. xvii, 264 pp. 130 HALMARI, Helena and Tuija VIRTANEN (eds.): Persuasion Across Genres. A linguistic approach. 2005. x, 257 pp. 131 JANOSCHKA, Anja: Web Advertising. New forms of communication on the Internet. 2004. xiv, 230 pp. 132 ONODERA, Noriko O.: Japanese Discourse Markers. Synchronic and diachronic discourse analysis. 2004. xiv, 253 pp. 133 MARNETTE, Sophie: Speech and Thought Presentation in French. Concepts and strategies. xii, 357 pp. + index. Expected July 2005 134 SKAFFARI, Janne, Matti PEIKOLA, Ruth CARROLL, Risto HILTUNEN and Brita WÅRVIK (eds.): Opening Windows on Texts and Discourses of the Past. 2005. x, 418 pp. 135 ARCHER, Dawn: Questions and Answers in the English Courtroom (1640–1760). A sociopragmatic analysis. 2005. xiii, 372 pp. 136 SASSEN, Claudia: Linguistic Dimensions of Crisis Talk. Formalising structures in a controlled language. x, 223 pp. + index. Expected September 2005 137 MORITA, Emi: Negotiation of Contingent Talk. The Japanese interactional particles ne and sa. xii, 235 pp. + index. Expected September 2005 138 MÜLLER, Simone: Discourse Markers in Native and Non-native English Discourse. ix, 282 pp. + index. Expected September 2005 139 LAKOFF, Robin T. and Sachiko IDE (eds.): Broadening the Horizon of Linguistic Politeness. x, 335 pp. + index. Expected September 2005 140 BUTLER, Christopher S., María de los Ángeles GÓMEZ-GONZÁLEZ and Susana M. DOVALSUÁREZ (eds.): The Dynamics of Language Use. Functional and contrastive perspectives. xv, 392 pp. + index. Expected October 2005 141 ZHU, Yunxia: Written Communication across Cultures. A sociocognitive perspective on business discourse. Expected October 2005 142 SIDNELL, Jack: Talk and Practical Epistemology. The social life of knowledge in a Caribbean community. Expected October 2005 143 BAKER, Carolyn D., Michael EMMISON and Alan FIRTH (eds.): Calling for Help. Language and social interaction in telephone helplines. Expected November 2005
A complete list of titles in this series can be found on the publishers’ website, www.benjamins.com
