Garrow’s aggressive style of cross-examination often uncovered circumstantial information that motivated juries to bend the rules and reduce the severity of punishment.
In episode 2 of series 3 of “Garrow’s Law” on BBC1, two men are accused of destroying silk looms in an act of industrial sabotage. When the jury bring in a verdict of not guilty on the one against whom his co-accused had pleaded King’s Evidence to secure his own release, Justice Buller told the jury to change their verdict – but they declined to do so. This is an example of what is called jury nullification.
Nullification occurred (and still does on occasion) when a jury exercised their power to acquit a defendant on the basis of conscience even when, on the evidence and the law, the defendant was guilty. Pious perjury occurred when capital punishment existed for numerous property crimes, many of them minor, and juries frequently reduced the value of the property and thus lessened the sentence, often from death to transportation. This arose when the death penalty was considered to be too harsh and out of proportion to the offence. When this occurred the judge was powerless to interfere with the jury’s verdict. A frequent example was when the jury reduced the value of goods to below 12 pence – above which the defendant would be sent to the gallows. This had the effect of making the criminal law of the time less harsh than was previously supposed. 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 when it was really of much greater value … a kind of pious perjury”.
In the eighteenth century nullification and pious perjury were widespread. For instance, Peter King in his Illiterate Plebeians, Easily Misled (1988) finds, that around one-seventh of those indicted for property crimes in the major courts of Essex between 1740 and 1805 had the indictments dismissed as “not found” by the grand jury. The jury trial then acquitted almost a third of the remainder and brought in pious perjury verdicts in a further 10%. Similar figures were found in the counties of Surrey, Hertfordshire, Kent and Sussex.
Garrow approved and, as the law forbade him from addressing the jury directly, he often indirectly encouraged them to engage in pious perjury. One such case occurred in 1784 when Garrow defended Elizabeth Jones and Mary Smith on charges of shoplifting goods valued at 14 shillings. A part of Garrow’s cross-examination of the chief prosecution witness is to be found in Sir William Garrow: His Life, Times and Fight for Justice by John Hostettler and Richard Braby (2010, Waterside Press). There was too much evidence against the prisoners for them to be acquitted but by his cross-examination Garrow gave the jury an opportunity to indulge their inclinations by giving a partial verdict and they found the prisoners guilty of stealing fans worth 4s.10d. By putting the value of the stolen fans below five shillings the jury, in a fine example of pious perjury, prevented the women from being sent to the gallows and they were each sentenced to be whipped and confined to hard labour for 12 months in a House of Correction. A penalty outrageous enough by modern standards but far better than a painful execution by the hangman.
Another example is to be found in the trial of John Merryman and William Pickering an examination of which is to be found in the Garrow’s Trials section of this Garrow’s Society website. In this case the jury are seen to be asking if they have the power to find a partial verdict. The jury had found the prisoners guilty of housebreaking and stealing goods to the value of 32 shillings – a capital offence. Garrow addressed the judge and pointed out that before the verdict was recorded it should be noted that as to the capital part of the charge there was no evidence other than that of an accomplice. Without his evidence, although the house had been entered and theft occurred, there was no breaking and entering to make the case capital. The jury said it was their wish to leave out the capital part but they had doubts about their power to do so.
The judge confirmed they had the power and Garrow urged them to alter their verdict as it had not yet been recorded. This the jury then did finding the prisoners guilty of theft of goods to a value of four shillings and ten pence and they were then sentenced to seven years’ transportation.