Personality of William Garrow
“Marriage: love, honour, and negotiate”
William Garrow had all the attributes befitting a leading barrister. He spoke with grace and clarity, and was blessed with the ability to relate to the ordinary man, as well as to deeply understand and react to the testimony of a witness. He won an excellent reputation in the public eye, and while little is known about his private life, he was reputed for his kindness and humanity outside the courtroom.
He was no scoundrel, but a lawyer known for his good humour, shrewdness, and fearlessness in the face of unfair evidence. He broke down class boundaries to win the hearts of his juries. Many English lawyers have followed in his footsteps. His innate sense of honesty, combined with his penchant for spontaneous objections, gave rise to new precedents in the legal sphere.
Sir William Garrow is a historical figure in the truest sense, winning distinction as a prosecutor, attorney general, and Member Parliament. Many even credit him with the introduction of the phrase “presumed innocent until proven guilty”.
William Garrow Personality
“An earthquake does what the law promises; but does not in practice maintain equality for all people.”
He was tenacious, doggedly and insistently determined, and had a capacity for sarcasm. Sir William Garrow was best known for his indirect reform of the advocacy system, which helped initiate the adversarial court system used in most common law countries today. He introduced the phrase “innocent until proven guilty”. He was relentless in his scrutiny of the accusers and the evidence they proffered. Sir William Garrow has been described as “one of the most successful advocates of his time”. This lay not so much in his understanding of black letter law, but rather in his flair for spontaneous cross-examination.
As a university student, Garrow studied hard and read the most important legal works of the day. He was attentive, quick, and diligent, and thus a capable lawyer. He was also known for his skill and boldness in the courtroom, although his dramatic and open hostility against those he was arguing is frowned upon today. Garrow worked at a time when the rules of evidence were only in their infancy. His insistence that hearsay and copied files couldn’t be admitted as evidence led to the best evidence rule
“But perhaps when you were too obedient, and did not do openly what others did, and were quiet in church and hard-working at school, then some unknown rebellion brewed in you, harming you, though how I do not understand.”
The Garrow family was originally from the highlands of Scotland, and believed to be distantly related to the Garriochs of Kinstair, a line of the Scottish aristocracy.
Sir William Garrow‘s grandparents were William Garrow and Jean Moir, who lived on a farm called the Mains of Allachy. Although the exact location of the Mains is lost to time, it is likely to have been located near the River Spey, which runs through Banffshire, Scotland. The farms were in that part of Scotland, about 50 miles northwest of the city of Aberdeen, where the River Spey flows east before turning north and emptying into the North Sea. William and Jean married on November 8, 1713, and were buried in Aberlour under a stone with an inscription dated May 4, 1742. The Garrows raised a large family of five daughters and four sons: Elizabeth (baptized 1717), Isobel (baptized 1719), Jean (baptized 1725), Janet (baptized 1728), and Margaret (baptized 1734), David (baptized 1715), William (baptized 1722), Robert (baptized 1730) and Joseph (baptized 1735). Church records show that most of the children were baptized in Allachie or Aberlour, while the last two births (Margaret and Joseph) were recorded for Knockside.
William Garrow’s father, David, is believed to have travelled to South Carolina as a missionary after becoming ordained as a Minister of the Church of England. Reverend David Garrow received £20 from the money book on August 28, 1745, “as passage money as minister to South Carolina”. If he served as minister there, he would return to England in time to rent a large 16th-century building called The Priory in Monken Hadley on March 12, 1747, and open his school or academy for young gentlemen. Shortly thereafter, on June 5, 1748, he married Sarah Lowndes of Surrey. Thus David Garrow settled down to build his family and his school. He formally bought The Priory in June 1760.
David and Sarah would have ten children: William, Edward, Eleanora, Jane, John Rose, William, Joseph, William, David and Anne. Three of their sons died in infancy, and the youngest two, who survived childhood, died early in life too. It is interesting to note that three of their children were named William, with the first two dying as babies. The third and final William survived, and became the celebrated William Garrow of our story. The children who survived to adulthood were:
We can assume that Sir William Garrow’s father, David Garrow, was born in the Mains of Allachy and was baptized in the parish church in Aberlour on August 4, 1715. He is stated to have resided at Knockside in his later teenage years. He has attended school in Aberlour from 1720 to 1725, where the school teacher was Patrick Gordon, who had studied at King’s College in Aberdeen. His early education gave David the foundation he needed for college. He bagged a master of arts in 1736 from the college of Aberdeen in 1736 with a Master of Arts.
After taking orders in the Church of England, he may have travelled to South Carolina as a missionary. Reverend David Garrow received £ 20 from the money book on August 28, 1745, “as passage money as minister to South Carolina.” If he served as minister there, he would return to England in time to rent a large 16th-century building called The Priory in Monken Hadley on March 12, 1747, and open his school or academy for young gentlemen. Shortly thereafter, on June 5, 1748, he married Sarah Lowndes, a virgin from Camberwell, Surrey, in St. Stephen, Walbrook, and London.
With these two decisions, he began building both his family and his school. Then David officially bought the priory in June 1760.
David and Sarah’s relationship produced ten children; William, Edward, Eleanora, Jane, John Rose, William, Joseph, William, David, and Anne. Three of her sons died when they were very young, and the youngest two, who survived childhood, died early in life. It worth knowing that three of their children were named William, with the first two dying as babies. The third child named William survived and became the Sir William Garrow of that story. The children who survived to adulthood were:
Edward (1751-1820) worked with the East India Company and made his fortune in India. Upon returning to England, he was appointed High Sherriff of Hertfordshire. As the eldest son, he inherited The Priory.
Eleanora (1752-1805) was the unmarried eldest daughter of the Garrow family. She cared for her parents, and lived in the priory until her death at the age of fifty-one.
Jane (1754-1841) is recorded as having made the long journey to India, presumably to visit her brothers Edward and Joseph. She returned to England in the 1780s to marry William Monk, a prosperous farmer, and raised a large family with him.
Joseph (1757-1792), like the eldest son Edward, also made his fortune with the East India Company. He ultimately rose to become the secretary to the Commander-In-Chief Madras. He had one biological son, also named Joseph, who is believed to have been a Brahmin (a member of the highest caste in Hinduism).
William (1760-1840) made his name firstly as a criminal defence barrister at the Old Bailey, and was variously a prosecutor, MP, attorney general, and Baron of the Exchequer. He is the subject of our story.
“Life becomes like a judicial process. You’re finally defending every value you stand for”
William Garrow’s father, David Garrow, made a success of his boarding school, which attracted the well-to-do English families that did business in London, but who nevertheless preferred the fresh air and tranquility of the country. Unlike the local Queen Elizabeth High School, which offered a classical education, Garrow’s school at The Priory did not neglect the more commercial and practical side of academic study. Standing on nine hectares of land, the Priory prepared young men for careers in commerce and government. David’s own sons, who were also educated at the Priory and who ultimately built distinguished careers in the East India Company and the government, were in some ways typical. The building itself was demolished in 1961 due to its poor condition. Despite its historical significance as a handsome building in the modern gothic style, The Priory was deemed too expensive to conserve.
At The Priory, the young William Garrow took lessons in English, Greek, Latin, French, geography, and mathematics, as well as dance and even the social graces. Garrow attended The Priory until the age of 15, after which he was articled to one Thomas Southouse, a lawyer in Cheapside.
Education in Criminal Law
“In any case, I think that the legitimacy of the court would be undermined if the court made a decision based on its perception of public opinion.”
Young men who were intent on a career in public life would often spend much of their time in the popular discussion and debating societies of the time. To further their skills of argumentation, the speakers would not only speak among his friends, but with competitors of differing abilities and a rapturous audience hanging on to their every word. The audience was generally a well-informed and boisterous crowd, who would have no problem jeering and braying at the speakers in response to a poor turn of phrase. The environment was in fact a rather unpleasant one quite unbecoming of polite society. In fact, it was common practice for the audience to use “scraping,” a sound of their feet against the floor, as an indication that they were tired of their speaker. However, this was just the tonic for a young speaker who wanted to prepare for the vagaries and savagery of real life speaking.
William Garrow was not actually a familiar face among the throngs of young men at Coachmaker’s Hall, a popular debating society on Foster Lane. It was said that he was so shy his friends had to thrust him into his seat and hold him there for the duration of his first speech. This seems remarkable for a man known for the boldness of his speeches in later life. Yet those who were closest to him claim it was “perfectly in tune with his reserved and withdrawn nature”.
Soon enough, William Garrow stemmed his natural inclination towards reticence. Indeed, he earned the moniker “Counsellor Garrow, the famous speaker at Coachmaker’s Hall” as testament to his fine speaking ability. Legend has it that he nearly debated a watchmaker to death, “who had long ridden the high horse of society, defeated him in a cool debate and dethroned him from his preeminent position as a champion.” When Garrow took to the floor, the audience would be sure of a thrilling encounter. It is reported that when one Mrs Cornelya was planning some entertainment at Carlisle House in Soho Square, her main concern that the famous debater William Garrow would grace her event.
On November 27 1778, the young William Barrow joined an Inn, as was required of all bar students at the time. Garrow was seen as a promising prospect, and described as “considerate and diligent in the performance of the firm’s technical and practical duties.” At 17, Garrow became a pupil to one Mr. Crompton, a special pleader. As a pupil, Garrow was studious and careful in the development of his understanding of a career at the Bar. A favourite pastime of the young Garrow was to view cases at the Old Bailey from the public gallery. Garrow also befriended the clerk of arraignment, William Shelton.
As an articled clerk to Richard Compton, Garrow diligently noted his copy of Euers Doctrina Placitandi from 1677 – a two-volume book on the law of typesetting in French. Garrow’s meticulous note-making, which recorded the relevant precedents of the day, even earned him praise from his senior, one Mr. Justice Willis. Garrow’s copy of Euers Doctrina Placitandi came into the possession of Montague Chambers QC, who ultimately donated it to the library of Lincoln’s Inn.
On November 27 1783, William Garrow was called to the bar at Lincoln’s Inn. By this point, he had become a powerful debater. Those who knew him personally marvelled at the contrast between his boldness in the public eye, and his modesty and reserve in his personal life. Garrow was never known for his thorough and nuanced understanding of black-letter law. He never became an authority on any one specific area of the law. However, he had a flair from the beginning for criminal practice, as seen in the assize courts like the Old Bailey.
Career as a barrister
“Freedom is in the hearts of men and women; If it dies there, no constitution, no law, no court can save it.”
William Garrow’s first case was actually for the prosecution. Not more than two months after being called to the bar, Garrow acted for the prosecution against John Henry Aikles, who had received a bill of exchange on the grounds of false deception. It was alleged that Aikles promised to pay Samuel Edwards £100 and a small amount of interest on a £100 bill. However, Aikles did not hand over this money to Edwards. Despite Aikles’ attorney claiming “this is not a crime” and being represented by two of the most respected criminal defence barristers of the day, Garrow convinced both the judge and jury that Aikles was guilty. Ironically Garrow would defend Aikles approximately one year later, and successfully won his release from prison on account of ill health.
Garrow developed a reputation for being a highly aggressive and belligerent cross-examiner. Whilst defending James Wingrove on the charge of robbery and theft in 1784, Garrow berated William Grove into admitting that Grove was only interested in the reward and that he had not actually witnessed Wingrove robbing the two victims. Garrow’s disdain for men like William Grove was plain.
In 1788, Garrow was engaged in the defence of three men on the grounds of theft. They were accused of attacking one John Troughton, leading him to fear for his life, and of stealing his hat. The fundamental question lay in whether their crime was greater than mere theft, i.e. did their actions frighten Troughton close to death. Garrow got Troughton to admit to being unsure if whether he had simply lost his hat. Upon hearing the testimony of four further witnesses, the three men were found not guilty.
Garrow was well-known for his remarkable way with the jury, who would often judge his clients much more leniently than those in the hands of a less capable barrister. In 1784, some women were charged with stealing 15 shillings worth of fans, conviction for which would mean a death sentence. Instead, Garrow got the women down to a sentence of 12 months of hard labour, after persuading the jury that the women had only stolen 4 shillings worth of fans.
Garrow soon developed a large practice, conducting criminal proceedings in the Old Bailey and outside London as a barrister for both the defence and the prosecution . The number of cases for which he appeared in the King’s Bench Division was high. In the words of a contemporary, “Nobody is heard in court, nobody wins a jury or is more likely to please an ordinary accountant”. In February 1793, Garrow was made a King’s Counsel (KC) and assisted in the prosecution of those charged with treason and sedition. His appointment, at ten years’ call, received a mixed response from the media. Yet some one contend that Garrow and the other five appointments were some of the finest talent of the Bar at the time.
While the first flames of the French Revolution were being fanned, Garrow’s career took off in earnest. He was a prosecutor in many state proceedings, and as he gained experience, he was left to his own devices for many of them. He confronted many prominent lawyers of the day, including Thomas Erskine, James Mingay and James Scarlett. In May 1794, the British government suspended habeas corpus. In 1795, all public gatherings were forbidden; in 1797, all secret organisations; in 1799, all associations aimed at illicitly transforming the workings of the British government. Over 800 arrests and 300 enforcement warrants were issued. Thomas Hardy and John Horne Tooke were at the top of the government’s agenda. Hardy was the first to be tried. Garrow accused him of planning a revolution in England on the scale that had been suffered in France.
Hardy was defended by Erskine. The trial lasted eight days longer than was usual, and the jury foreman was said to be so tense that he whispered the verdict “not guilty”, and then passed out immediately. Tooke was also prosecuted and similarly found not guilty. Most planned trials were later abandoned.
In Garrow’s day, the West Indies sugar planters had great power in Parliament, which enabled them to maintain a monopoly on the marketing of sugar in England and make enormous profits. The sugar business was largely profitable due to the use of slave labour, which Garrow had long resisted. When the sugar plantation owners made a handsome offer to Garrow to oversee all their legal affairs, Garrow retored, “If your committee gave me all of their income and goods, I would not be seen as an advocate of practices I detest and a system I hate.” In 1806, the governor of Trinidad, Thomas Picton, was charged with “causing unlawful torture” on a young girl. He was arraigned before the King’s Bench under Lord Ellenborough. Garrow was closely involved as a prosecutor; in fact, his opening speech on February 24, 1806, is considered one of his best. The case concerned the question of whether Spanish law allowing torture was still in effect at the time of the incident. The jury ultimately decided it was not and Picton was found guilty. However, when Picton’s lawyers appealed, a second trial found Picton innocent.
What made Garrow different from the barristers of the day? Unlike the other well-to-do gentleman lawyers that graced the courts, Garrow revelled in understanding his clients. Whether they were thieves or counterfeiters, he braved the journey into the foul and diseased prisons in order to build his cases.
Criminal cases still resembled the poorly executed public trials from which they originally derived. Garrow immediately recognised the potential for humour, even rather robust humour, to get the jury or witness on his side. He was known for his sarcasm during cross-examination, but even “the lowest form of humour” could easily turn into deadly irony at the expense of the persecuted and the thief takers, whose actions often resulted in the miscarriage of justice. Garrow’s impassioned and rigorous defence speeches paved the way for a more robust law of evidence, as well as the greater neutrality of judges and juries.
Not that all or even most of his cases ended in acquittal. He was not defending honest radicals, but dishonest villains whose necks were at stake. However, at a time when theft of more than 40 shillings meant a death sentence, Garrow’s shrewdness engendered the begrudging tolerance (if not forgiveness) of victims and juries.
Political and judicial career
“Luck has nothing to do with it, because I’ve spent many, many hours, countless hours in court, working a moment in time without knowing when it would come.”
From the outset of his career, it was widely assumed that Garrow would pursue a political career. However, it was not until 1805 that Garrow was first selected as MP for Gatton. This was a quiet town where Garrow was supposed to serve the interests of the ancient parish. Garrow initially paid little attention and did not make his first speech in Parliament until April 22, 1806, when he appealed against charges of dismissing Marquis Wellesley. He intervened on a technical legal issue on June 18 1806, but did not speak on behalf of Gatton for another six years. Most sources agree that Garrow did not enjoy his time in Parliament and was rarely there unless he had to do business.
Garrow’s political flair and network saw him become the first Solicitor General (1812), and later Attorney General (1813). It was old rival Erskine who recommended him for the job. In his letter to the prince, Erskine said that Garrow “knows more about the true justice and politics of all criminal matters than any man I know”. On behalf of the Prince Regent, Garrow prosecuted Leigh hunt for inciting defamation against the Prince. Hunt was found guilty, and a later decision in which he was acquitted was also overturned.
Instead of the progressive, defensive work, he did early in his career, this period was a time of conservative aggression against the reformers. Garrow made the mistake of crossing the path of one Sir Samuel Romilly, who had proposed legislation on penal code reform. Although Romilly’s draft abolishing corruption of blood passed in Parliament, Garrow, as Attorney-General vetoed the bill, claiming that it went against the constitutional guarantees of the United Kingdom. The bill ultimately failed, and corruption of blood would only be abolished by the Forfeiture Act of 1870.
Garrow’s first judicial role was his appointment as the Chief Justice of Chester in 1814. As this role was held concurrently with this Attorney-General position, this was objected to by the same Sir Samuel Rommilly, who argued that “”the appointment of a gentleman to a lucrative office for the sole pleasure of the Crown creates a high legal position”. The independence from the judiciary, for which it was so important to remain intact, was extremely inconsistent. ”
Garrow’s tenure as Attorney-General was not particularly eventful. He contributed to the mass trial against the Luddites in 1813. At the 1814 session, most of his speeches focused on stock market fraud: he insisted on the justice of the trial against Lord Cochrane. He declined to investigate the compensations of the courts of June 28, 1814, and again in February 21, 1815. He sparred again against Romilly on the subject of the militia. On March 18, 1816, after he had filed his voters’ application against property tax, he declared himself in favour. Garrow generally voted with the government on most issues, although most of his speeches focused on matters of law. Notable exceptions included the defence of Ellen-Borough in the Lord Cochrane case; a speech against Brougham on press freedoms; as well as a keynote address in favou of the Incendiary Gathering Act.
Garrow also contributed to the repeal of the Corn Laws, and voted for the promotion of legislation to control surgical practice in the United Kingdom. Animal cruelty was widespread in the early 1800s; Garrow was among those who hated it and sponsored a bill in 1816 to increase the penalties for riding horses to the point of grave injury or death. Although Garrow was not successful on this occasion, his efforts were ultimately vindicated by the same Thomas Erskine, who introduced a successful bill in 1820 on the same issue. In 1817, Garrow resigned his positions as Attorney General and MP, upon his appointment as a Baron of the Exchequer.
He was not a particularly prominent judge in the state treasury, mainly due to his lack of knowledge of the intricacies of the law. Practising on the Assize circuits, however, was a different matter. Garrow remained most at home in criminal matters. He wowed the jury and fellow officers of the court with his stunning understanding of even the most complex crimes. Garrow retired on February 22, 1832, was replaced by John Gurney. Upon retirement, he was appointed a Privy Counsellor, a testament to the respect he was accorded by the government.
“Just because some people in the Supreme Court declare something “constitutional” doesn’t mean it.”
Garrow had a relationship with noblewoman Sarah Dore, who had a previously bore a son to Arthur Hill, Viscount Fairford, in 1778. The marriage was not only to be disapproved of by the Hill family, but even rumoured to be illegitimate. Their son William Arthur received the surname Dore Hill (Dore from his mother, and Hill from his father), and the name Dorehill lives on in their descendants today.
The first child of William Garrow and Sarah Dore, David William Garrow, was born on April 15 1781. A daughter, Eliza Sophia Garrow, followed on June 18 1784. Garrow and Dore wed finally on March 17 1793. In adulthood, David Garrow followed a distinguished career in the Church and became a chaplain to the Prince of Wales. His son, Edward Garrow, became a noted cricketer and priest. Eliza Garrow, in turn, married Samuel Forthergill Lettsom. One of her children, another William Garrow, rose to become the Consul of Uruguay. After a long illness, Sarah Dore Garrow died on June 1808, and was buried in St Margaret’s Church, Kent
Impact on English Law
“It is the spirit, not the form of the law,that keeps justice alive.”
Garrow‘s greatest achievement was his contribution to English criminal law.
The foundations of the English legal system can be traced back to the 13th century. Prisoners charged with treason and crimes were not legally permitted to have a lawyer before them for five long centuries, although the penalty for these crimes was death. This rule came about during a rape case during the reign of Edward I (1273-1307) and, with minor and specific exceptions, remained in place until the 18th century. The basis of this rule was that criminal charges were made on behalf of the monarch. Defending prisoners on charges like murder or treason was regarded as akin to opposing the King himself. Therefore, the accused stood alone, and were not even given use of affidavits.
This rule is rightly regarded as archaic and unfair today. In addition, the rule did not apply to the prosecution, and this caused serious harm to the defendants for centuries, especially in treason trials where the crown was always represented. It did not help either that defendants were not allowed to take any kind of legal action against witnesses, nor even to put them under oath if they appeared before the court of their own free will. This placed defendants at a disadvantage to the prosecution, whose credibility was increased by testimonies. Inmates placed forced to provide their own defence were exposed to deeply difficult situations, and were often rescued from the gallows solely by the grace of the juries or, in some cases, the judge.
The rising popularity of the Whig party brought with it the growing recognition of the rights of the individual, as enshrined in the Bill of Rights 1689. This key piece of legislation ushered in the concept of human rights as we know it today. It included, among other elements: the free election of parliamentarians; the right to trial before a fair jury; and the abolition of cruel and unusual penalties.
The Whig party also enacted the Treason Trials Act in 1696. In contrast to the age-old precedent, defendants who had been charged with treason were not accorded the right to seek advice on their legal issues, as well as the ability to address the jury on matters of fact and law. The justification for this new piece of legislation was twofold: firstly, it was believed that two witnesses to the offence was necessary to ensure the veracity of the act. Secondly, it was thought too harsh that a defendant had no right to counsel, in contrast to the prosecution.
However, this reasoning did not really apply in the context of bread-and-butter criminal work. At this time, criminal proceedings took an unexpected direction. With the number of criminal cases on the rise, local government needed to find a way to keep legal fees and investigation costs down. The government thus began to a bounty system that encouraged thieves in search of a reward. Key witnesses were encouraged to alter evidence and testify against their co-defendants in order to save their own necks, and perjury became increasingly common, even against defendants charged with minor crimes.
As perjury became rife in the courts, some judges began to believe that the system was working too harshly against defendants. Although the change came about sporadically and slowly, judges began to allow barristers to appear on behalf of defendants, as well as to allow the questioning of the prosecution. Argument on behalf of the defendant in short, became a distinct possibility. Still, defence barristers were not defending their clients per se, but largely confined to cross-examining the other side, with the defendant continuing to be left largely to his own devices.
Nevertheless, the growing importance of cross-examination should not be disregarded. A key role in this development was played by William Garrow, who appeared in over a thousand cases at the Old Bailey and established an aggressive and personal style of questioning prosecutors and their witnesses. As will be seen, this was crucial in obtaining a trial against an opponent and also contributed to the establishment of rules of evidence, including such rules as the presumption of innocence, the rule of best evidence, and the hearsay rule.
Due to the fact that the lawyer was only allowed limited appearances for prisoners, the adversarial system was slowly established during the 18th and 19th centuries, which amounted to a “crucial period of training in English criminal law”. However, its origins were unknown for a long time and is still contested today by academic lawyers who cannot agree on the origin of an opponent. Perhaps no one was more important in the development of the system than William Garrow. His cross-examination style embraced a thorough analysis of the evidence, a scathing rebuke of the prosecution and an aggressive fight on behalf of the defendant. As a lawyer and as a Whig politician, Garrow played a fundamental role in influencing the rules of evidence, the adversarial system, and the proceedings of the criminal court.
Rules of Evidence
The rules of evidence developed rapidly over the course of Garrow’s professional career. Indeed, Garrow played an integral part in their development. A highly instructive example is one from Garrow’s early career, where he served as the barrister for one John Hinxman, who had been accused of theft by his employers.
This case was interesting because the outcome depended on the strict application of a rule of evidence. When Hinxman was fired from his job, he was caught leaving the store with a locked box. The prisoner confessed, although his employer may have urged his confession, promising mercy. There were some pieces of silk, some socks, and a handkerchief. Theft of this property was a serious crime with draconian consequences if Hinxman was found guilty. Garrow was rigorous in his uncovering of procedural errors and inconsistencies in the evidence of the prosecution. The case turned out to be a success, not only for Hinxman who was found innocent, but for Garrow and the development of his inimitable cross-examination style. Garrow was relentless in his examination of the evidence and the prosecution, as well as in his defence of the accused. Such characteristics would continue to distinguish him as a barrister.
“If there weren’t any bad people, there wouldn’t be any good lawyers.”
An early notable success in the courtroom was the prosecution of one John Henry Aikles. Garrow’s case turned on a rather obscure point of law regarding a bill of exchange. Aikles was alleged to have stolen £100 from Samuel Edwards, having promised to pay Edwards the £100 minus a small commission. A bill of exchange was signed by Aikles. Aikles originally claimed that he held the money in his apartments. However, he never provided this money to Edwards and apparently sold the bill to another party who had the right to demand payment. The question in court was whether Aikles had stolen the £100 account for a crime. Garrow endeared himself to the jury by speaking of Aikles as a virtuous man of enormous benevolence, who was using his fortune for the purposes of high-minded philanthropy. His joking aside, Garrow’s final statement summarising the point of law was highly convincing from a legal perspective. Part of his speech is reproduced below:
‘’ Your Honor, the case we are now bringing is just like the case of a man who goes to Smithfield Market and chooses a horse, the owner gives him the horse to try and the stranger ride away horse. If I were to turn to the general view of a man who is mine and ask who lived the property of the horse, he would reply that the actual property was determined by its delivery to the stranger. But the law said that this property was acquired with criminal intent, such taking is a crime.
What happened to Sharpless in this place about nine years ago? It was the fashion trick of the day (each period has its tricks) to go to a goldsmith and send some of his wares home, and it was the wisdom of the day for the goldsmith to order his servant not to leave the goods without money, but somehow Sharpless sent the servant back and kept the goods, and the judges deemed it right to do so. Difficult to prove that the goldsmith actually owned his wares after they were delivered to the stranger by his servant.
I had the honor of explaining to your gentlemen a horse theft case, another which in a very short time, received a solemn decision from all the judges in England, which is decisive in this case. A man hires a horse on the pretext of taking a trip to Essex. In fact, he never makes such a trip but sells the horse. This was found to be a crime; I’m going to end on a very new insight, which, when standing alone, is my friend Mr. Fielding. A man goes to a publisher and orders a glass of beer and change for a guinea, which is sent to Mr. Stiles’ House. When it is returned, on some pretext, he returns the servant, takes the change, and leaves, Allows me to ask if the tax collector who stayed in the bar of his House had more control or possession over his money than any man who listens to me.
And yet your glories have with great wisdom asserted that this taking is a crime… when did the crime begin? I will answer for exactly as long as I started in the cases I was allowed to take to court. in the case of the horse fighter, it began the moment he put his foot in the stirrup to steal the horse; Here, the crime began the moment the prisoner picked up the note with the criminal intention of converting it for his own use.”
Garrow sealed his fame and fortune with this first case. Court records reveal his nuanced understanding of theft law, his virtuosic attack on the character of the accused, and his innovative use of the jury. Garrow was remarkable in his inclusion of the jury. After having presented his case, he said, “Sir, I would be happy to bring this matter to the Tribunal, but that any arguments of this nature be directed to the jury. They are supposed to work there, So it is my duty to pester you with a few words in response. ” It a most interesting intervention that he would use throughout his career, mostly as a defence barrister. We find here, in Garrow’s own words, his awareness of the electric effect he could have on the jury and the overall direction of the trial. The combination of the essential facts and Garrow’s tactics sealed Aikles’ sentence to death. However, he was later pardoned on probation in September 1785. In an ironic twist of fate, it was Garrow who secured Aikles release on the grounds of illness.
Jury Nullification and prious perjury
‘’The government cannot compensate us; it can only recognize, respect, and protect us as equals before the law.’’
Garrow’s aggressive cross-examination style could reveal indirect information that motivated the juries to bend the rules and reduce the severity of the judgment. This resulted in what was known as “revocation and pious perjury”. Revocation was where a jury followed the direction of its conscience, even if it flew in the face of law or evidence. Pious perjury, on the other hand, referred to when a jury did not find the accused guilty of the crime with which he was uncharged, and instead reduced the amount stolen in order to avoid a capital offence. When the death penalty existed for many property crimes, the juries often reduced the charge, and with it the sentence, often from death to such punishments as flogging and punishment.
Newsworthy trials of William Garrow
“The law is continuously based on morals, and if all laws that are essentially moral decisions are to be invalidated under the fair trial clause, the courts are indeed very busy.”
On the October 29, 1792, Garrow represented Ms. Weltjie in a case against her husband’s “servant,” Betty Callaway, on whom she was accused of assault. The intrigue in this case lay in the fact that Mr. Weltjie had been a personal assistant to the Prince of Wales. The Prince of Wales had endured much censure and embarrassment in the press as a result of this association already. The trial added salt to the wound. Garrow took up the case with his characteristic aplomb.
Amelia Louisa Weltjie was presented as the wife of “Mr. Weltjie, a person some time ago in a lucrative position under the Prince of Wales”. Weltjie accused not only Betty Callaway of abuse, but also her husband of brutal treatment. According to court records she said that “but the situation got worse over the summer when her husband, although very ill, did not allow the servants to look after them or even change their sheets. She had got up on July 2, waiting for the kitchen to clear, and stole some clean sheets from the laundry. But when she returned to her room, she was brutally attacked by Miss Callaway. When she complained to her husband, he defended the servant by saying that she followed his instructions and refused to fire her.”
Ms. Weltjie took Calloway before a judge, but Mr. Weltjie pursued her, paid bail, and accompanied the servant back to the family home. “Fortunately,” said Garrow in conclusion, “Weltjie was not an Englishman but merely “an arrogant, wallet-proud foreigner who had gotten rich in the service of the country’s most famous subject.”
Miss Callaway was found guilty and sentenced to two months in prison. A fine was not levied upon her, as Mr. Weltjie, in the judge’s words, had so “bravely” paid it on her behalf:
Baron Hompesch and the Farmer and his Dog
“Behind every argument is a person’s ignorance.”
This case shows how the landed gentry and gentlemen were particularly threatened by Garrow’s court tactics, which were viewed as a threat to their honour. It is said that Baron Hompesch was so incensed by Garrow’s behaviour in court that he challenged him to a duel.
Hompesch was a member of the Swiss aristocracy and a British Army officer. He had rented a property in Kent and accused his neighbor, the farmer Sherwood, of hunting game with a dog on his land. This was a violation of gaming laws. Garrow defended the farmer Sherwood and brought in the farmer’s dog in defense, only to discover that it was a sheepdog. He ridiculed Hompesch and argued that his case was strengthened by two witnesses, the Baron himself and the dog “the latter of whom was certainly an honest witness.”
Baron Hompesch was one of several key witnesses called upon to testify. The Baron contended that the defendant had been occupying the land of one Mr. Chambers (who was imprisoned in Verdun at the time), and that the defendant has subsequently rented out a mansion on the land to the Baron himself. He saw Sherwood (the defendant) on February 6 last year. The defendant had sat on a blanket, with a gun on his shoulder and a dog at his side. Their conversation was as follows:
“Farmer Sherwood, you hit the ceiling.”
“What if I have?”
“Who gave you permission?”
“What is it to you, Baron?”
The Barron said that at that point it was clear what he had to do. During the cross-examination, the Baron was adamant that he would recognise the dog if he saw it again. It is here that the story becomes somewhat strange. The Baron admits that he and Farmer Sherwood were on friendly terms, and that the accused would sometimes join him in a drinking game. On one occasion, the accused’s wife was so incensed that she gave her husband a good thrashing before dragging him home.
A few days later, the Baron admitted, he sent the defendant a small present, consisting of a small container of wine to lighten the farmer’s mood after his wife’s beating. He also included a very neatly decorated ridged horsewhip, which he recommended as a nice reply to the wife. However, he denied having written defamation against the defendant or acted indecently against a woman who was the subject of the present complaint.
When the dog was brought to court, Baron Hompesch finally had to admit his association with the defendant. Garrow concluded with a spirited speech on behalf of the defendant, mocking “His Excellency the Baron Hompesch.” He drew some laughs by detailing the virtuous actions of His Excellency the Baron and of sending a horsewhip for use on his own wife. Garrow concluded by arguing that there was no evidence at all that the defendant had fired his weapon to destroy game.
Mrs. Day’s Baby
‘’Beauty is nature’s boastful right and should be displayed in court, at parties, and at lofty ceremonies where most will marvel at the craftsmanship.’’
Another fascinating case that captured the attention of the public was a case concerning whether one Mrs. Day, was the mother of a baby. Mrs. Day, a Staffordshire woman who had become pregnant, was leaving her husband’s house in Kimbolton in Huntingdonshire to stay with her relatives in Staffordshire. The facts were murky, but it was believed that Mrs. Day had miscarried or somehow lost a child entitled to an estate of £500 or £600 a year. Mrs. Day returned to her husband in early March with a surrogate child she claimed was hers. Many years passed. The question now concerned whether the child was the legitimate child of Mr. and Mrs. Day. Garrow’s job was to cross-examine the woman who had allegedly sold the child masquerading as the real heir, and on her testimony did the younger Mr. Day’s legitimacy now rest.
The skill with which Garrow interrogated this woman left no doubt that the child Mrs. Day brought home was not her own. It was confirmed that Mrs. Day had lied about her travel dates. Additionally, her child’s age did not match the age of the child Ms. Day introduced to her husband. It was calculated that Mrs. Day’s real child would have been about 15 weeks old by the time of their return to her husband’s house; instead, the child was a mere 5 weeks old.
Nevertheless, the jury ruled in favour of the younger Mr. Day for other reasons. Many critical witnesses had already died, as many years had elapsed since the strange incident. The mother and those visiting her could not be found, and so no positive proof of delivery could be obtained. The testimony therefore rest essentially on hearsay from neighbors, together with the recognition of the child by the father.
This case filled the country with gossip and drew a court crowd rarely seen in size. Garrow was ingenious in his characterisation of the “good, easy” Mr. Day, who had been totally hoodwinked by his wife. The skill with which Garrow unravelled such a complex and well-rehearsed tale remains a masterclass in cross-examination for any aspiring your barrister.
The jury and all the officers of the court were remarkably silent during the cross-examination of Mrs. Day. Garrow’s gaze did not waver, but instead remained deeply transfixed on Mrs. Day. She was calm for a while, but her steadfastness eventually collapsed. He brought forth the truth of the story, and thus another glorious victory in the courtroom was his for the taking. Again, Garrow exemplified the brisk, dramatic qualities of his style that would ultimately become legendary. In order to understand Garrow’s contribution to criminal law however, one should aim to amass a more well-rounded understanding of his life. Thus, we turn now for a deeper look at his political career.
Hearsay in the commons
“Laws are a dead letter with no courts to explain and define their true meaning and workings.”
Garrow was, by all accounts, a rather reluctant MP. He was first elected to the House in 1805, but deferred making his speech more than a year. Garrow claimed he had made a promise to himself to keep out of affairs in which he had no interest or right to interfere. Nevertheless, he took it upon himself to denounce Wellesley’s impeachment, for he could not find any grounds to support the charges against him. Out of sheer principle, he was against it, and he did not believe that the House should wield its power in such an unjust manner.
Garrow would intervene again on matters of India in June 1806. However, his input was less so a political matter, and much more a technical legal opinion. When one Lord Teignmouth was to be consulted on local treaties pursued whilst he held the role of Governor-General of India, Garrow noted that this was contrary to accepted judicial proceedings.
“Elsewhere,” he said, “the rules of evidence would not allow an examination of the witness’s opinion.” In response, another member (Dr. Laurence) pointed out that no rigorous legal evidence was required in proceedings before the House, “as nothing could be different than the situation of the House of Commons seeking information and that of a court. Garrow immediately withdrew, noting dryly that, “It seemed like he had wandered from the courts downstairs to this place where he found that legal knowledge was completely useless for interviewing witnesses.”
Ironically, he thanked Dr. Lawrence for his reading and continued, “From his account, it was evident that this House had grandly chosen to depart from the rules of evidence established by the wisdom of the ages to protect our lives and freedoms.”
Garrow was deeply disappointed in the pursuit of a conviction on the grounds of mere hearsay. As one who had fought in the fray of the criminal courts, this staggering lack of justice could not be overlooked by Garrow. The MPs, who were the subject of Garrow’s ire, retorted that they were not bound by any rules of evidence. As MPs, they could present whatever they wanted. Garrow received another lecture from the House. Secretary Wyndham curtly thanked Garrow for his speech, but said that he derived no benefit from it. Garrow was essentially told that he had not answered the question proposed, and that if he had nothing valuable to offer, he had better not say anything at all. Garrow did not intervene in a debate for more than six years until, on February 12, 1813,where he spoke as an attorney against a transfer of common law judges to the Courts of Fairness. He did not enjoy his time in the House, and as time went on, he liked it even less. He only came to Parliament on specific matters of business, usually in his capacity as a Judge or Attorney General.
When Garrow resigned from his role as Attorney General in 1817 to become a Baron of the Exchequer, he also resigned his seat in his commons. Garrow’s political career was rather undistinguished, and it is clear that the skills required in a courtroom did not quite marry with those required in Parliament. Although some lawyers like William Pitt made the transition successfully, Garrow’s ability to thrill a braying jury was not what was called for in Parliament, where the judicious examination of detail and argument were paramount.
Garrow’s career in the judiciary was marked by the prosecution of many for the crimes of creason and sedition. He was also a leading figure in the fight against revolution, which had so shaken the continent. As a jurist, he oversaw a period of deep distrust and conservatism, in marked contrast to his pioneering cases as a criminal defence lawyer.
Baron of the Exchequer
“The purpose of the law is not to punish sins but to prevent certain outward consequences”
Garrow became a Baron of the Exchequer in May 1817 and remained in this position until his retirement in 1832. In this final phase of his career, he was one of the four barons of the Treasury, a judge in one of the highest courts in the country. This ancient court was set up to resolve disputes over income, especially when the Crown had an interest, but as it evolved, it also dealt with other issues of interest to the Crown. Towards the end of the 17th century, the Treasury was one of three higher courts to deal with a wide variety of issues, the other two being the Court of Common Pleas and the King’s Bench. In Garrow’s time, the Treasury could be found in Westminster Hall, not far from the famous Westminster Abbey.
Garrow was not known as a particularly brilliant judge, not least because his knowledge of the finer points of law was rather weak. But some scholars believe that this very weakness might have given him an advantage in the understanding and development of efficient law enforcement.
While he sometimes advocated bills in his Old Bailey legal profession, his focus was on the art of representing and understanding the people before him in court. This could have resulted in him being strict as a judge. It must be remembered at this point that the Barons were generally tasked with the finer points of complex commercial matters. However, Garrow spent much of his time as a traveling judge on the circuits of Assize. This legal system was specifically devoted to criminal matters such as the common man experienced, and in Garrow’s case, it typically dealt with cases involving the life or death of the accused. Issues like murder, manslaughter, arson, theft and so forth were right up Garrow’s alley.
In the Assizes, a new system was now developing known as the “trial against opponents”. A new generation of defense lawyers and prosecutors worked under the watchful eye of Garrow and other judges. These young men had learned their arts from none other than Garrow himself, and now Garrow, in turn, oversaw the rules of evidence that he had done so much to influence.
While criminal proceedings continued in transition, the recent changes made were institutionalised, and a new generation of junior lawyers learned their craft in the Assize Circles through on-the-job training at the feet of Judge Garrow. Much of the publicly available information in the public record about Garrow as a judge comes from his service on the Assize circuits. At this point in history, judges were travelling from one provincial town to another with a jury to buy up for the assizes all the individuals who had been charged with more serious crimes. Assizes generally took place twice a year, and in some places only once, leading to prisoners spending months waiting for their trials.
Garrow’s will and trust
‘’The Court of Justice is the most vulnerable and closest to illegality when dealing with a constitutional law enacted by the court that has little or no discernible roots in the language or design of the constitution.’’
Two years after his retirement from public service, and ten years before his death, Garrow made his will and trust, which established how his wealth was to be administered in his old age and after his death. The first of these was a will, and the second was an instrument of trust.
The will was short and had two requirements. First, that he “wanted to be buried at Hadley [the place of his birth] so close to the remains of my late uncle, Doctor William Garrow, so easily, with no parade or unnecessary expense.” And the second was the establishment of his trust. He stated: “I give all my real and personal property, whatever and wherever and of whatever kind and nature, my said … executor on the trusts and for the use, interests, and purposes contained in and by the … deed of assignment.”
While the will was simple and straightforward, the trust agreement consisted of sixteen pages of handwritten language in a complicated legal language that would have been difficult for a lawyer to understand, let alone a layperson. Although the details remain obscure, the general intent of Garrow was fairly clear. He wished that his estate be professionally managed; he wished to ensure the security of his family; and he wished to avoid death duties via a trust. Garrow’s significant assets are recorded in a document now contained at the Ramsgate Library’s Heritage Collection. The list includes the following:
- Pegwell properties.
- Barnet properties, including those obtained by the will of his uncle, Dr. William Garrow, including the Two Brewers.
- Enfield property near the obelisk in the Great North Road. The property at or near Rowley Green near Barnet. (will of uncle)
- Messuages, farms, and land called Aberdulais and mills and forges called Aberdulais Mills.
- Messuages, farms, and land called Winualt and Bryhioheeth or Bernwith and Maer Llerwellyn.
- Woods, woodlands, mines, and minerals in Parish of Lantwill by Neath in County of Glamorgan.
- Properties in counties of Kent, Hertford, Middlesex, and Glamorgan.
The properties at Glamorgan were in the Neath area, not far from Swansea. It is interesting to speculate that the Glamorgan properties Garrow owned when he died were preserved when his son-in-law, Fothergill Lettsom, went bankrupt. Garrow was a major investor in his son-in-law’s business venture in the Wales tin factory, and Garrow may have purchased the property in part payment for the substantial cash.
On reaching the age of seventy, Garrow left the management of his affairs to his executors. These included Lenanord Smith, a merchant, and two barristers, Edward Lowth Badely of Paper Buildings and William Nanson Lettsom of Gray’s inn. William Nanson Lettsom was the cousin of Garrow’s daughter’s husband. As trustees, these men yielded great power and essentially were free to manage the trust as they wished so long as they met the trust’s obligations. During Garrow’s lifetime, they of course had to also defer to Garrow himself. Garrow made provisions for the following people via the trust, to be distributed after his death.
Joseph Garrow, the son of William Garrow’s brother by an Indian woman, would receive £ 1,000, or if Joseph Garrow was not alive when William Garrow died, the money would be for his daughter, Theodosia. The trust was to provide three of Jane Monk’s children with £200 each, with Jane being Garrow’s sister. The Jane Monk children mentioned were Eliza Eleanora Elwin, Selina Augusta Blanc, and Charles Edward Monk. Jane Monk would receive interest, dividends, and £ 2000 annual product for the rest of her life, and upon her death, that income would be passed on to another daughter of Jane, Myra Charlotte Monk. (Jane received this inheritance for a year and died passing the inheritance to Myra Charlotte.) The remaining estate was to be split into two parts, or “parts,” one part in support of Sir William Garrow’s son’s widow. Charlotte Caroline and her descendants. The other part was helping Sir William Garrow’s daughter, Eliza Sophia Lettsom, and her descendants.
It is interesting how Garrow designed the division of these two “parts”. Charlotte Caroline would receive £ 300 a year from interest on her family allowance side for the rest of her life. The corpus of this money would be divided equally among their children. Their male children would get their share when they were twenty-one years old. Females would not get their share proper, but only interest on the share. On their deaths, it would be their children that would receive either interest (if they were daughters) or money (if they were sons). Apparently, this strategy would be continued indefinitely through the female line.
The share of Eliza, Garrow’s daughter, was set out in tremendous detail in the trust instrument. The Trust Deed says in part that they will receive “an annual income of £ 300” and “would pay the dividends, interest and annual income thereof into the proper hands of said Eliza Sophia Lettsom, the wife of said Samuel Fothergill Lettsom, for and for their parting. Uses and benefits regardless of her current spouse or any prospective spouse she might be married to from time to time and free from the control, debts, and obligations of her current or prospective husband Eliza Sophia Lettsom… Dividends, do not provide, tax, allocate or in any way encumber or dispose of interest and annual income before they are actually due and payable … “.
There was also a complicated provision that an additional £200 a year, if necessary, if Eliza Sophia was anticipated to be separated from her husband, i.e. “now separated for financial reasons and separated from the circumstances of the said Samuel Fothergill Lettsom”. In fact, it must have been Samuel Lettsom, and not Eliza, who would benefit from this money. It is believed that this £200 was what allowed Lettsom to support himself upon his departure to France, and upon his escape of debtors’ prison in England.
For his brother, David William Garrow, there was apparently a different provision regarding the “children, grandchildren, or the subject.” Money could be drawn for maintenance, education, and promotion, but such money needed to be taken from the portion designated to him. The Trust also provided complicated contingencies should certain specific eventualities come to pass, although the technicalities, as was already briefly noted above, are unclear.
We know from the will of Garrow’s granddaughters that trust was a significant part of their wealth, even though women could only draw the interest they had earned on the money they inherited. Garrow had six granddaughters. Of these, only three married, and of these two late in life. Only one married at the usual age when young women found husbands. It seems that many of Garrow’s granddaughters found their grandfather’s money sufficient to live upon and remained independent. For example, one unmarried Anna Maria Garrow died in Caterbury at 40 years old, an unmarried woman, and leaving nearly £3,000 to her sister Georgina Laetitia, who had also never married. Garrow had three great grandchildren, two of whom were great granddaughters. Of these two girls, only one had children. Caroline Georgina Philips Hacker had four children, two girls, and two boys. Of Caroline’s two daughters, only one had children. Edith Elizabeth Hacker Snead, in turn, had three boys and two girls.
Shortly after his retirement, Garrow added an attachment to his will. In it, he commanded that “Mrs. Sarah Young, widow (and his housekeeper) should receive his bed, crib, mattress, pillow, pillow, and other items as I now use them, the same thing along with two full changes of the best linen of all the same and the closets, tables, and chairs and everything else in and around or in my bedroom. “After Garrow’s death, Mrs. Sarah Young continued to live at Pegwell Cottage. It was recorded in the local press that Mrs. Young died less than two months after Garrow.
Garrow was not buried in Hadley as he had wished, but rather interred in the churchyard of St. Lawrence Parish Church, Ramsgate, Thanet, near his home. His crypt may also have been more expensive than advertised.
His request was that his funeral be “without a parade.” The tomb is not far from the door to the church and is surrounded by an iron gate and covered with ivy. The inscription is difficult or impossible to read, but records show that these are the words carved in the stone:
“Sir William GARROW of Pegwell Cottage, third son of David Garrow of Hadley, County Hereford. Born April 13, 1760, and 1793 by King George III. Appointed one of his majesties. In 1806 he was appointed Attorney General to HRH George, Prince of Wales. In 1812 he was appointed attorney general and, in 1813, the attorney general of King George III. Promoted. A year after his appointment as the attorney general, he was appointed Chief Justice of County Palatine of Chester. He was promoted to Baron of the Finance Court in 1817, and after serving the duties of that office sincerely and skillfully for nearly 15 years, he retired in February 1832 and was immediately appointed by King William IV, one of his most honorable Privy Councilors Majesty. He died in Pegwell, loved and honored on September 21, 1840, at the age of 80.”
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