A Battle of Forensic Giants
William Garrow and Thomas Erskine were good friends. They were also two of the greatest barristers this country has ever seen. Garrow as champion of the poor and disadvantaged in the Old Bailey and Erskine as a freedom fighter in the shockingly biased State Trials that stained English criminal law at the end of the eighteenth century. But the two of them overlapped.
Sometimes they appeared on opposite sides in a trial and sometimes they worked together. One of the trials where they were opponents was that known as “Mrs Day’s Baby”. It is reported in the book “Sir William Garrow: His Life Times, and Fight for Justice” on pages 66 and 67. However, there is an aspect of it not mentioned in the book. The case was heard at the Huntingdon Assizes before Mr Justice Heath in 1797. It caused an enormous amount of gossip and large crowds attended the hearing. The issue before the court was whether the defendant, who was heir to a large estate, had in reality been a child purchased from a poor woman in a workhouse.
Erskine appeared for the plaintiff and feeling confident of success and, courteous as ever, spoke of the character and conduct of the defendant as being in every way worthy of a genuine descent. He was, he said, wholly guiltless of the fraud which had placed him in court. However, he stressed the necessity of the jury considering the position of his client if the defendant succeeded.
Garrow showed his usual ingenuity in cross-examining witnesses. A contemporary observer in court described how, “the court was in a dead silence during the examination, which lasted about three hours; Mr Garrow’s eyes were scarcely once off the witness; they seemed to penetrate into her very soul and lay open the inmost workings of her mind. She was as collected as himself for some time, but her firmness at length gave way; he broke in at last upon the truth of the story, and, finally, made her so palpably confute herself, that his victory was complete”.
After the judge had summed up the evidence, the jury found in favour of the defendant. Erskine’s fury may have contributed to his own defeat by extolling the virtue of the defendant to the jury. However, he was not about to blame himself but directed his fury at the judge. On his return to London he wrote a letter to his instructing attorney in which, apart from praising him for his work on the case, he wrote, “The charge of the judge is a reproach to the administration of English justice, being, from the beginning to the end of it, a mass of consummate absurdity”, he fumed, ” and ignorance of the first rules of evidence. If he had done his duty, I think the verdict would have been otherwise”.
Erskine then applied to the King’s Bench for a rule to set aside the verdict, and, on this being refused, he wrote again to the attorney, “My opinion of Mrs Day’s cause”, he exclaimed, “you can scarcely believe to be at all altered; my mind must be indeed shallow in the extreme if any thing which passed in the King’s Bench could make any other impression upon it than that of utter contempt for the prejudices of judges in the blind support of one another’s errors. Kenyon’s mind is of a size, and, generally speaking, of a character to disdain such a course, but he appears to me to have laid aside his reason in the speech he delivered” in refusing the rule.
Many years later the plaintiff decided to publish an account of the trial. Erskine asked him to take care not to abridge a syllable of Mr Justice Heath’s summing up since the whole would produce nothing but contempt in the mind of the reader. However, it could work both ways. It has been said that on one occasion old Mr Justice Gould made another strong summing up against Erskine which was largely inaudible and unintelligible to the jury. Erskine nodded to all that was said, leading the jury to believe that the law was in his favour and to deliver the verdict he wanted. Lord John Campbell considered that this was probably a pure invention, as indeed it may have been, but, of course, such stratagems are not unknown to the Bar. What is significant about the conduct of the case of Day v. Day is that Erskine never put the reason for the jury’s verdict where it belonged – on the penetrating cross-examination of witnesses by his friend Garrow.