Many thanks, all, for those interesting and informative comments, and for the pointer to the 'Byrn' book on courts martial which is now on the 'wish list'.
Brian:
I'm sorry I didn't make myself clear! I really didn't mean to give the impression that the civil courts were more liberal. There were, as you point out, many more offences that could attract the death penalty in the civil courts than there were in naval courts. I just wondered - and from your comments, my suspicion was correct - whether there were many cases of acquittal, or 'lenity' as Nelson often said, in courts martial, just as there were in the civil courts. As the authors of Garrow's biography point out, 'When capital punishment existed for many property crimes, juries would frequently reduce the charge, and thus lessen the sentence from death to transportation or...to whipping and imprisonment. The term 'pious perjury' was coined by Sir William Blackstone who wrote that 'the mercy of juries often made them strain a point, and bring in larceny to be under the value of twelve pence [over this sum was a capital offence] when it was really of much greater value, a kind of 'pious perjury'.'
It certainly seems that the RN gave a much fairer hearing than the civil courts - until the changes that gradually evolved.
Kester: The biography of Garrow is most informative - a little bit 'text-book' dry in style, but with wonderful flashes of immediacy when Garrow's withering cross-examinations are quoted verbatim, skewering the shifty, dishonest and corrupt.
Yes, Garrow has slipped into the shadows, his name unknown even to many lawyers, as the comments on the dust-jacket confirm. This is perhaps because the changes were not enacted in Parliamentary legislation but rather evolved gradually, as a result of Garrow's robust court-room style. He managed, amongst many other beneficial advances, to reduce the dominance of judges over juries, so that judges took on a much more passive role, controlling the legal procedures, but leaving the presentation of evidence and the cross-examination of witnesses to counsel, and the assessment of guilt or innocence to the jury.
Sadly, having been such a force for true justice in his youth, he became a crusty old reactionary in old age: probably one of the reasons why he has been forgotten.
The TV series 'Garrow's Law' was, with the reservations PN has noted, very good, I thought, entertaining and illuminating at the same time. It really brought home how terrifying it must have been to be hauled before a pre-Garrow court, without proper representation, with no presumption of innocence, without the right to make a defence, with bounty-hunters, paid to denounce the accused, who were not subject to rigorous cross-examination. We may think that 'the law is an ass' on occasions, but there is no doubt that our 'laws and liberties' were enhanced and protected by Garrow's towering achievements in changing the face of the English criminal trial.
_________________ Anna
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