Who Was William Garrow?
There’s a classic archetype of the slick trial lawyer, a guy who has so much skill in the courtroom that he can reliably win cases for clients that clearly deserve to lose. Sometimes he’s cast as the soulless defense attorney who can let you get away with murder – for a price. Sometimes he appears as the slick plaintiff’s attorney who wins million-dollar verdicts for papercuts or unspecified emotional distress. His existence gives rise to periodic moral panics, a sense of outrage that justice is a game or that the rich and powerful can hoist themselves above the law.
You might think of this as a modern invention, a cultural amalgamation of old Perry Mason reruns, anti-corporate skepticism, and tort-reform lobbying. But it’s a lot older than any of that. Public concern about slick trial lawyers dates back to when effective advocates were first permitted into the courtroom. And one of the best of these early trial lawyers – maybe one of the best trial lawyers ever – was Sir William Garrow. In the course of his unimaginably successful legal career Garrow invented many of the legal concepts and trial techniques we use to this day. And in the process, he became one of the first “legal boogeymen” to capture the popular imagination.
Who was William Garrow? Born in Hadley, just north of London, in 1760, Garrow was educated at a school run by his father, a priest in the Church of England. [1] He was apprenticed to an attorney at 15, another at 17, was admitted to Lincoln’s Inn in 1778 and called to the bar in 1783.[2] Even before beginning his practice as an attorney, he had already distinguished himself in public speaking at debating societies in London. Indeed, when he appeared at one he was introduced as “Counsellor Garrow, the famous orator of Coachmaker’s Hall.” [3]
Garrow entered the legal profession at a unique time in English legal history. Prior to the Treason Trials Act of 1696, attorneys were absolutely prohibited from representing felony defendants at trial. The theory was one of lèse majesté. Criminal prosecutions were nominally carried out in the name of the crown and “it is not proper that you should have counsel against the King.” As a result, criminal defendants were forced to defend themselves, generally ineffectively, in a society in which virtually all felonies [4] were punishable by death.
However, some infamous abuses in treason trials, particularly in the Popish Plot trials of the late 1670s, convinced Parliament to permit defendants to retain counsel in cases of treason specifically. [5] While the 1696 statute applied only to treason, by the 1730s judges had started to gradually relax the restriction in other felony cases as well. [6] However, it remained exceedingly uncommon for defense counsel to appear – only one or two per assize session – until the early 1780s. [7] And it was at just this time that Garrow began his practice.
From the very get-go, Garrow was shockingly effective at securing acquittals for his clients. In his very first year of practice – at only 23 years old – he appeared in over 100 cases and managed to obtain acquittals for more than half of his clients. [8] He quickly became one of the most infamous of the Old Bailey practitioners. Within five years we see records of prosecutors complaining that losses against Garrow should not be counted against them. [9] One notorious highwayman reportedly called Garrow “the best bar-bully of them all; he is my Old Bailey physician.” [10] Indeed, Garrow become so famous as a barrister that he effectively worked himself out of a job. He was named King’s Counsel in 1793, and ultimately served as a member of parliament, an attorney-general, and later a judge. [11]
And what makes these accomplishments even more impressive is that in the early years of Garrow’s practice, judges severely restricted what defendants and defense counsel could do in the courtroom. Defendants could not testify under oath in their own defense. And defense counsel were initially forbidden from directly addressing the jury. [12] The only tools in their toolkit were arguing points of law to the judge and questioning witnesses.
So how did Garrow win? Several ways. Garrow was renowned for his deep command of the criminal law and for his efforts to push the boundaries of the developing evidence rules in his favor. He is widely credited with having invented the expression “innocent until proven guilty” and using this argument to convince juries to acquit. [13] He also marshaled and shaped the evolving doctrine of hearsay in his favor, being one of the first to argue that copies of documents could not be received into evidence – a notion later embodied in the “best evidence rule.” [14]
But first and foremost, Garrow was a brutal cross examiner in a legal community that was simply not accustomed to the practice. Writing in the 1790s about the ethics of cross examination, the famous Anglican priest Thomas Gisborne summarized the traditional approach as follows:
[A lawyer] will not defame the witnesses of the adverse party; nor … strive to rob their testimony of the credit it deserves.
He will not overawe [witnesses]… by brow-beating and menaces, nor impose on their simplicity by sophistry and cunning.
He will not … insidiously labor to extract from their words as sense foreign to their intentions.
He will abhor the idea of drawing those who appear against him into any seeming contradictions and perjury, when he perceives their meaning to be honest. [15]
Garrow had, shall we say, a different approach. The records of the Old Bailey show Garrow savaging witnesses on the stand, some of whom beg the court for protection in the face of his sarcastic questioning. While the idea of key prosecution witnesses utterly recanting their story on the stand is mostly a Hollywood fantasy today, Garrow was actually able to make it happen.
In particular, Garrow understood that cross examination was not simply a tool for eliciting factual testimony. In examination after examination, he attacks the character and reliability of opposing witnesses in an efficient, modern manner. For example, when defending a watchman accused of killing a prisoner, Garrow made quick work of a prosecution witness:
Garrow: Mr. Jones, pray of what profession are you?
Jones: I am a watch-maker by trade.
Garrow: That is, when you are out of jail?
Jones: No Sir.
Garrow: How then?
Jones: I get my living as honestly as I can.
Garrow: That is exactly what I thought! Honestly if you can. But if not…?
Jones: Dishonestly you may suppose, but I do not say that.
* * *
Garrow: What unrighteous set of men was it that sent you [to jail]?
Jones: My wife.
Garrow: It is not the first unrighteous woman that has sent her husband there.
By whose help did she send you there?
Jones: I cannot tell you, you must ask her that. I was sent from Hick's-hall. They would not let me speak there, here I am before an honorable Court. She could produce no marks.
Garrow: You half murdered her, and they convicted you?
Jones: The sentence was one month's imprisonment and two ball in ten pounds each, and myself in twenty pounds for my good behavior for twelve months.
I laid there eight weeks. I was in three prisons in three week’s time.
Garrow: Now I recommend to you to take care you do not get into Newgate [prison]?
Jones: I have escaped that.
Garrow: You have, have you? Why that is a pretty strong prison too?
Jones: I am an honest man.
Garrow: I believe in the third prison you [were] so bad a fellow, that the keeper himself got some of his own people to bail you, to get rid of you, and in order that you might not corrupt the whole jail?
Jones: Right, Sir! Very right, Sir! Very right, Sir! [16]
Or when cross examining a co-conspirator who implicated his client in a theft from a barge, Garrow seized upon the prosecutor’s unfortunate final question to great effect:
Prosecutor: Now young man, upon your oath, is it true that you have told the Court?
Hyser: Nothing but the truth.
Garrow: What is it that my friend is afraid of? That you will not tell the truth?
Why you are an honest lad, and came to speak the truth?
Hyser: Yes.
Garrow: Where did you come from this morning?
Hyser: From Tothill-fields [an infamous prison]
Garrow: Tothill fields! What? Have you lodgings there?
Hyser: No, I am in custody.
Garrow: Oh! In custody! That is what made my friend so fearful!
What are you in custody for my man? Speak out! Don’t be bashful!
Hyser: Sir…
Garrow: Is it upon account of this affair?
Hyser: I suppose so sir.
Garrow: What somebody was wicked enough to suppose you stole [the goods]?
Hyser: [No answer]
Garrow: Why you could speak fast enough just now. Now you are as mute as a mackerel, now I am come to speak to you. Why don't you speak out? Did not somebody take you [into custody] about [the stolen property]?
Hyser: Yes Sir.
Garrow: Come let us have it, then you told this story about [my client]?
Hyser: I told on Tuesday morning. [17]
Garrow did not limit his opprobrium to cooperators. In July of 1787 he prosecuted a man for shooting a woman. The defendant pled insanity and called his business partner as a witness to his supposed madness. Garrow expressed some skepticism that the partner genuinely believed that the defendant was insane:
Garrow: You thought him a very eccentric man?
O’Donnell: Very.
Garrow: A studious man?
O’Donnell: Not that I know of; he had a philosophical mind well formed and appeared to me to be mad. Formerly I knew he was addicted to experiments. I knew nothing of the cause of his eccentricity. He was so always since I knew him. He was my partner about six months; he attended my patients; prescribed for them; he directed the making of medicines.
Garrow: He gave directions for bleeding and blistering, and taking proper care of his patients?
O’Donnell: In that respect I saw no insanity, but in particular points the man was always insane.
Garrow: How many of them might he have poisoned in the course of that six months?
O’Donnell: I do not know that he poisoned any.
Garrow: Then during the six months he was visiting?
O’Donnell: He was getting into his own back parlor stamping, and swearing, and damning like a madman, and had every appearance of a madman; in short he was a madman.
Garrow: But during all this time he was a mad apothecary, attending his patients in partnership with you, and taking care of his patients?
O’Donnell: Men are partially insane.
Garrow: And that does not make them worse apothecaries perhaps?
O’Donnell: Perhaps not.
Garrow: Then I am sure I will not ask you another question. [18]
In another example, Garrow cross examined an elderly man claiming that a young woman who was once his servant had stolen from him. Garrow insinuated that the man was an old lecher who had offered the defendant up as a prostitute for his apprentices.
Garrow: I fancy I shall make an end of this business, by a word or two with this old gentleman. You thought it was a good thing to get her [arrested], then you had her?
Thorne: I had nothing but honor and honesty in me.
Garrow: That is certain, my old buck!
Thorne: She had left my service about a year and a quarter.
Garrow: How many of your apprentices boarded and lodged with her by your desire?
Thorne: There was one, and I gave a bond to his relation that he should be at liberty at five years.
Garrow: That is, in defiance of law, and in spite of the indentures, you gave them up in five years. Did not this young man, your apprentice live with her?
Thorne: He did live with her, he cohabited with her.
Garrow: Is not she a married woman?
Thorne: I do not know that.
Garrow: What do you believe?
Thorne: He lay out of my house, and lay with her; no more of my apprentices went there; here is one that went backward and forward. [19]
This approach to cross examination made Garrow few friends in polite circles. Critics called him vulgar and garrulous, and claimed that his conduct insulted the dignity of the courts.
Indeed, in 1807 Garrow severely embarrassed the Swiss Baron Hompesch in a case brought by the Baron against a neighbor. [20] The Baron had rented an estate in Kent. He brought a case against his neighbor, a farmer named Sherwood, for illegally hunting game on the grounds of his rented estate with a dog. [21]
Defending the farmer, Garrow brought the dog to court to prove that it was only a sheep dog rather than a proper hunting dog. [22] In cross examination, he got the Baron to admit that he had previously been friendly with the farmer and had jokingly sent the farmer a horsewhip after the farmer’s wife had interrupted one of their conversations. [23] In his questions and remarks, Garrow claimed that, of the two witnesses, (the Baron and the dog) that the dog was clearly the more honest witness. [24] He strongly criticized the Baron for having sent the horsewhip, claiming that the farmer would have been within his rights to whip the Baron for having done it.[25] He also insinuated that the Baron was secretly after the farmer’s wife. [26]
After badly losing the case, Baron Hompesh challenged Garrow to a dual, which he declined. The Baron then complained to the Prince of Wales about Garrow “grossly insulting a British General Officer in public court” and claimed that, having refused to dual him, the man was “unfit to be received in company of gentlemen.” [27]
What lessons can we learn from the life and times of William Garrow? First, that trial practice is not some fixed thing, carefully designed from first principles. It evolves over time as practitioners develop new and better ways to advocate on behalf of their clients. Anyone who argues cases a particular way because “that’s just how it’s always done” would do well to examine whether there are better approaches available. And anyone who treats the rules of evidence as fixed in stone would do well to remember that they too evolve over time, as the attitudes and experiences of judges change.
Second, that an attorney should not simply surrender in the face of limitations on their advocacy but consider whether there are permissible methods to accomplish the same thing. When Garrow was denied the right to address the jury in opening or closing, he devised clever ways to make the same arguments through cross examination, famously remarking “[w]hat the law of England will not let me do directly, I will do indirectly where I can.”
And finally, while there are many ways to win at trial, there is no substitute for a devastating cross examination of the other side’s witnesses. That’s as true today as it was in 1783 and will likely remain that way for as long as attorneys are permitted to ask questions.
[1] John Hostettler and Richard Braby, Sir William Garrow, His Life, Times and Fight for Justice, ch. 2 [2010].
[2] Id.
[3] Id.
[4] Prior to the 13th century, mutilation was available to judges as an alternative to death. Petty larceny, while technically felony, was treated as a misdemeanor. Suicide was punishable by forfeiture. J.H Baker, An Introduction to English Legal History, p. 512 [4th ed. 2002].
[5] John H. Langbein, The Origins of the Adversary Criminal Trial, pp. 69-73, 84-96 (2003).
[6] This was done on a discretionary basis. Felony defendants did not have a legal “right” to be represented by counsel until much later, with the Trial for Felony Act of 1836. J.H Baker, An Introduction to English Legal History, p. 510 n.54. [4th ed. 2002].
[7] Jonh Beattie, Garrow for the Defense, History Today (Feb. 2, 1991).
[8] Id.
[9] John H. Langbein, The Origins of the Adversary Criminal Trial, p. 296 (2003).
[10] Jonh Beattie, Garrow for the Defense, History Today (Feb. 2, 1991).
[11] John Hostettler and Richard Braby, Sir William Garrow, His Life, Times and Fight for Justice, ch. 6 [2010].
[12] John H. Langbein, The Origins of the Adversary Criminal Trial, p. 296 (2003).
[13] Jonh Beattie, Garrow for the Defense, History Today (Feb. 2, 1991).
[14] Id.
[15] John H. Langbein, The Origins of the Adversary Criminal Trial, p. 307 (2003).
[16] Proceedings of the Old Bailey, 15th September 1784, William Stevenson, available at: https://www.oldbaileyonline.org/record/t17840915-66
[17] Proceedings of the Old Bailey, 14th September 1785, William Bear, available at: https://www.oldbaileyonline.org/record/t17850914-80
[18] Proceedings of the Old Bailey, 11th July 1787, John Elliott, available at: https://www.oldbaileyonline.org/record/t17870711-41
[19] Proceedings of the Old Bailey, 29th June 1785, Catherine Molley. available at:https://www.oldbaileyonline.org/record/t17850629-13
[20] John Hostettler and Richard Braby, Sir William Garrow, His Life, Times and Fight for Justice, ch. 4 [2010].
[21] Id.
[22] Id.
[23] Id.
[24] Id.
[25] Id.
[26] Id.
[27] Id.
