The struggle for liberty in Britain has all but vanished from the national consciousness. Most people know that John Hampden refused to pay ship money but I doubt if more than a handful know anything else about him. John Wilkes is forgotten, and only the older generation of left-wingers remember John Lilburne. Americans have it much easier. Home Box Office could make an intelligent and popular biopic of the life of John Adams because he seconded the Declaration of Independence, argued about basic principles as he helped draw up the constitution and then found how those principles conflicted with the pressures of power when he became president. Defining arguments about political ideas ensured the immortality of America’s founders.
British history is less dramatic because there was no defining moment when liberty was won. If the British think about how they got to where they are, they assume in a Whiggish way that our freedoms evolved by a gentle process of moral improvement. We forget that gains were won by bloody-minded people who took a stand against the establishment as much for the hell of it as any other reason. As the historian Ben Wilson says in his excellent What Price Liberty (Faber and Faber, 2009), the British way was dependent on people scrapping against authority in an undignified manner and defending their gains in the same way. It is a history without many national heroes but with many lesser heroes.
One such was William Garrow, the dominant barrister at the Old Bailey in the 1780s. He invented the rigorous cross-examination of prosecution witnesses, and his tactics pushed the law into accepting the presumption of innocence, rules of evidence and rights to representation, which we now take for granted. Before the legal revolution Garrow began, a defendant relied more on luck than on law to save him from the gallows.
This is what an old lawyer explains to the young Garrow when he hands him his first brief in the opening episode of BBC One’s Garrow’s Law. It is very thin, says Garrow. Well, his colleague explains, you are not allowed to see the indictment. You are refused copies of the depositions sworn against your client. You are not permitted to visit your client while he is in Newgate Prison. When you are at the Old Bailey, you will not be allowed to address the jury, make an opening statement or a closing speech. You may call witnesses as to the prisoner’s character, but they are not bound to appear. In fact, not only is it impermissible for counsel to make a full defence, it is barely allowable for him to actually win a case. Hence the thinness of your papers.
Garrow’s part in creating judicial standards that swept through the free world was no small achievement. Typically, the British have forgotten he ever existed. The industrious Ben Wilson does not mention him. The lawyer-broadcaster Clive Anderson confessed that not only had he never heard of Garrow but when he turned to the Oxford Companion to the Law he found that its learned editors had never heard of him either. All that was left of his life was a portrait hanging in Lincoln’s Inn, until someone at the TwentyTwenty production company in Kentish Town noticed that the Old Bailey had put accounts of 197,000 trials between 1674 and 1913 on the internet. Court cases have always been a rich source for dramatists as they provide social history and a peerless record of human frailty. But 197,000 of them was rather a lot for one writer to cope with. Fortunately, the company had given work experience to a barrister who wanted to break into television. Unlike so many of his contemporaries, he had learned about Garrow and so dug out accounts of his cases and steered the production staff in his direction.
The result is a mixture of costume drama and liberal argument which stays reasonably close to the historical record. When, in the first episode, Garrow turns to a prosecutor who has sent an innocent man to death and snaps, “It troubles you not to derive your living from the groans of the gallows”, it is not the scriptwriter, Tony Marchant, speaking but Garrow himself. Equally, the Monster, a precursor of Jack the Ripper, who terrorises Georgian London in the second episode by stabbing genteel women’s buttocks, and many other stories in the series, are based on real cases.
Thankfully, the Garrow Marchant gives us is not too prissy or preachy. He calculates his career advantage and has an affair with the wife of a government politician just as the real Garrow did. His story’s setting in Georgian London gives Marchant a further advantage in his attempt to dramatise legal history that I doubt his liberal colleagues in broadcasting appreciate.
The abolition of the death penalty has advanced civilisation at the expense of crime-writing. Nothing put drama into the courtroom so much as the knowledge that if the jury found the prisoner guilty, the judge would order his execution. The presence of death ensured that reports of trials dominated popular journalism from its inception in the 18th century. The archive of cases Marchant draws on began its life not as the formal record by court clerks but as the Proceedings of the Old Bailey, a newspaper that gave Londoners accounts of trials in all their gory detail.
Early 20th-century Britain thrilled to reports of the trials of Dr Crippen, the “brides in the bath” murderer and Seddon the poisoner. Now, with life sentences instead of death sentences, the time when journalists would charge out of courtrooms to give the public the latest news on the progress of a murder case seems as remote as the age of steam. Perhaps the fashion in contemporary crime-writing for obscene description of the violence murderers visit on their victims is a compensation for the elimination of the violence the legal system visited on murderers. Certainly, Marchant does not need gruesome action to hold the attention of his audience. The speed with which juries were prepared to condemn men and women to death provides tension, and the success of Garrow in saving defendants brings dramatic relief.
Given the dismal state of contemporary television, I found it admirable that Marchant and his colleagues, and indeed the BBC, were prepared to take a risk by rescuing a forgotten but fascinating man from oblivion. There are precious few justifications for the licence fee these days. One of the few that remains is that it allows the British to tell our stories to ourselves including, as Garrow’s Law proves, stories we had forgotten we ever knew.