Legal eagles: Garrow (Andrew Buchan) and his associate John Southouse (Alun Armstrong)
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.