Episode 3

Inspirations: Episode 3

Garrow’s Law aims to give viewers a window on life in late eighteenth century legal London.

Mark Pallis, Garrow's Law consultant on legal and historical matters, tells us more about the real cases and events that inspired each episode.



CELESTIAL BED

In this episode, a lady brings a case against one Dr James Graham, on the basis that he obtained money by deception. This case is a dramatic invention inspired by James Graham, a sexologist who lived from 1745 to 1794. Graham is remembered today as a ‘quack’ made famous by his ‘celestial bed’: a weird and wonderful device that promised to help couples conceive, with piped music, glass pillars and electrical currents!

There are no records in the Old Bailey archive to show that Graham was ever prosecuted, although there is one record of a James Graham being convicted of fraud in 1776, but we cannot be sure whether this is the same person.

CAPTAIN BAILLIE

The case of Thomas Baillie was inspired by a case from 1778 where Captain Baillie was accused of a criminal libel for publishing a pamphlet which criticized conditions at the Greenwich Hospital, and made allegations of corruption.

In the real case, Baillie had four lawyers in total, the most junior of which was Thomas Erskine. Erskine’s speech daringly named the Earl of Sandwich, saying that Erskine would ‘drag him to [the] light’. The speech won the day and the case was dismissed.

Despite Baillie’s success in Court, an investigation was launched in the House of Lords. This went into considerable detail about Baillie’s allegations, and heard from many witnesses about conditions in the hospital. On 7 June 1779 it concluded that Baillie’s book contained ‘a groundless and malicious misrepresentation of the conduct of the Earl of Sandwich and others, the commissioners, &c. of Greenwich Hospital .’

Baille never recovered his position.

FURTHER TWIST

However, in a further twist, more revelations surfaced about Sandwich in later years. According to a historian writing in 1911, “It was through his [Sandwich’s] habit, already noticed, of appointing officials not for their capacity but in return for their votes that affairs had sunk into such a deplorable state. Stores supplied to the army and navy have a queer little knack of being above the market price and below the market value.”

DRAMATIC INVENTIONS

In order to give the fullest possible account of what was really going on at the hospital, the facts of the case in Episode 3 are inspired by records from both the court case and House of Lords enquiry. The key differences are that, although Garrow did defend libel cases - including one case against Erskine - Garrow did not defend Baillie.

Also, the real case did not take place at the Old Bailey - however, it’s worth noting that had the incident happened a few years later, it would have been heard at the Old Bailey owing to changes that were made to the system for prosecuting libel.

The verdict in the episode accords with court case, but differs from the subsequent finding of the House of Lords inquiry.

Finally, Hill’s connection to the case is a dramatic invention.

FASCINATING FACT - TRUTH WAS NOT A DEFENCE!

Libel actions developed along two tracks. One was a common law action for damages (You libel me. I sue you. I win. You pay me damages). The other was criminal (You libel me. I bring case against you. I win. You go to gaol). In a common law case (i.e. for damages), the truth WAS a defence. The criminal offence had a different set of rules: truth WAS NOT a defence. In the 17th Century, Lord Chief Justice Coke put it like this: ‘The Greater the Truth, the Greater the Libel.’ His reasoning was as follows: “a woman would not grieve to have been told of her red nose if she had not one indeed.”

This formalised into a rule of the court as a result of a case in 1793: “But in 1793 the judges being consulted by your Lordships, gave it as their opinion that by the law of England the truth cannot be given in evidence on the trial of an indictment or information for libel; and it has been since decided, that after a conviction the truth cannot be disclosed to the court by affidavit in mitigation of punishment.” Lord Campbell, House of Lords 1843 debate on Libel.

And, still in 1843, Lords were worried about changing the rule: “The utterance of the mere naked truth had been shown by his learned and noble Friend to be capable of causing much misery, and producing many evil consequences, without tending to the possible gratification of aught other than the malice of parties, who might have raked up faults long ago repented of and atoned for.” Lord Denman

LINK: Erskine's Speech in the Baillie Case