Inspirations for this episode
Written by Mark Pallis (Story Editor and legal consultant)Garrow’s Law and the Real Story of Women’s Rights - Garrow Society
Sarah's custody battle
For women living in Sarah's time who were separated from their children, it really was a fight against all odds if they were to be successful in winning a claim to have their offspring returned to them.
In reality, very little is known about Lady Sarah and her child by Hill, other than that they eventually lived with Garrow. Did Hill simply give the child to Sarah or did Sarah have to fight for it? We do not know. So for the purposes of the drama, we speculated what it would have been like if Hill had refused to give Sarah the child and Sarah had had to fight for it. This was a worthwhile dramatic invention in my view, because it allows us to shine a light on the exceptionally harsh conditions that existed for women who wanted to obtain custody of their children at the time.
Researching the story for the episode was greatly aided by an excellent textbook written in 1850 by the English Barrister William Forsyth called ‘A Treatise on the law Relating to the Custody of Infants’. The book is not available online but a copy is available at the British Library. In the book, Forsyth explains the origins of the law on the absolute right of father and explains that in Roman Law, it seemed that a father's power over his children was so strong that he was even allowed to kill them without it being considered murder. Luckily, Emperor Constantine did away with this rule! The basic principle underlying this right remained however and, as Forsyth explains:
"The general rule of law in this country is, that the legal power over infant children belongs to the father and that during his life, the mother has none. In the words of Blackstone 'a mother, as such, is entitled to no power, but only to reverence and respect.'"
The starting point for the involvement of the court was the principle of Parens Patriae, whereby technically, all children were under the authority of the King, who exercised this authority via the courts. What will be of interest to those viewers who wonder if the writers of Garrow's Law have given Sarah ‘21st century opinions’ in relation to Samuel is that there really are cases dated 1789 and 1792 where women brought actions against their husbands or former husbands in relation to the custody of children (these are Creuze v Hunter, 2, Cox, 242 1789; and Ex Parte Warner, 4 Bro. Ch. Ca 101 1792). As Southouse makes clear to Sarah in the Episode however, there were very, very limited circumstances in which a mother could actually win against the father: such as if the father was an outlaw, living abroad in 'very embarrassed circumstances' and who was threatening to take the child out of the country - and the jurisdiction of the court. Despite the high odds, it didn’t stop women trying.
Two women who went through the process (some time after Lady Sarah's time) and whose stories, amongst others, have served to inspire part of the drama are Henrietta Greenhill and Caroline Norton. These two women deserve real recognition for their tireless efforts which led to the Infant Custody Act of 1839 and subsequently the Matrimonial Causes Act of 1857. I can heartily recommend the book ‘Until they are Seven’ by His Honour John Wroath, and his article on the Garrow Society website, where he goes into detail about the lives of the women and the lengths they went to in order to be re-united with their children.
More on this next week as Sarah’s story develops further!
For many people, when they think of machine wrecking, they think of the Luddites of 1811 and onwards. However, machine breaking had been an offense since 1721 and Ned Ludd, the man in whose name the Luddites fought, was said to have broken two stocking frames in 1779. So it seems that there was no let up in the unrest during Garrow’s time.William Horsford, Damage to Property, 6th December 1769 - Old Bailey Online
There are numerous books on the subject, but as far as online sources go, there is an interesting piece by Jeff Horn on the History Cooperative website, which goes into detail about the machine breaking activities which took place in England throughout the whole of the 1700s, such as those of the Spitalfields weavers during the 1700s. Mr Horn also gives examples of machine breaking in Lancashire and the Midlands, Manchester, and the West Country during the latter part of the 18th century.
Whilst these events were occurring all over the country at the time, and not just in London, we have not found cases of breaking silk looms heard at the Old Bailey during Garrow’s time. Inspiration was therefore taken from this Old Bailey case, fifteen or so years previously, where where silk and weaving machines were destroyed and the culprit, William Horsford, was sentenced to death. Here is the indictment:
"William Horsford was indicted for breaking the house of Thomas Poor, and by force enter, on the 9th of August, about eleven at night, with intent, feloniously, to cut and destroy raw silk, then and there being in a loom in the said dwelling-house, not having the consent of the owner. It was laid also, that he did enter the house by force, with intent, feloniously and willfully, to cut and destroy one hundred yards of silk manufactory, value 100 l. the property of Joseph Horton, then being in a loom in the house of Thomas Poor, not having the consent of the owner. It was laid also for entering by force, and feloniously, willfully, and maliciously, did cut and destroy silk mixed with other materials, being in a loom in the said house, not having the consent of Joseph Horton, the owner, and also did break one reed, value 1 l. the property of the said Joseph Horton, in the house of the said Thomas Poor, being a tool used in the making silk manufactory, not having the consent of the owner, and also did break and destroy a harness, value 5 s. the property of Joseph Horton, being a tackle used in making silk manufactory, or silk mixed with other materials, not having the consent of the owner."
Riotous attack on a saw mill
Another case of relevance was this one from 1768, where a saw mill was attacked by a crowd of one hundred or more:Edward Castle, Riot, 6th July 1768 - Old Bailey Online
"Edward Castle was indicted for that he, together with divers others to the number of one hundred or more, their names unknown, on the 10th of May unlawfully, tumultuously, and riotously assembled to the disturbance of the public peace, did demolish or pull down, or begin to pull down a certain out-house called a saw mill, the property of Charles Dingley , Esq."
The other important aspect of this week's case was that one man 'turned King's evidence' against the other. This means that he 'cheated the rope' but at the price of owning up to the crime and giving evidence against his co-accused. Looking through the archive, there are cases where Garrow rails against those turning King's evidence and it was therefore decided to include a King's evidence element in the case of the loom breakers. It helped make the story more dramatic, and also showed a real life question that would have faced any person who was co-accused during the period.Robert Breeze, John Hart, Tax Offences, 8th December 1790 - Old Bailey Online
The negative attitude to those turning King's evidence is shown by this quote from a case in 1765:
"It were to be wished that such would consider the heinousness of their crime, and turn to God; for though they may, by turning king's evidence, escape the sword of justice in this world, yet they cannot escape the just judgment of God at the great day."
Garrow's frustation at the person who turned King's evidence is plain in this case where he was prosecuting smugglers who had fired on a customs boat that was chasing them. One of the men (who perhaps was hard of hearing) turned King's evidence and Garrow was questioning him about it:
Garrow: Then I will explain myself, and speak a little louder; did not you expect to be hanged, unless you gave evidence?
- I do not know the consequence of such a thing.
Garrow: Do you mean to say, man, that you, being concerned in smuggling, did not know that it was a capital offence to fire on custom-house officers?
- Certainly it is a bad fact.
Garrow: Do not you know it is a fact that affects people's lives when they are convicted? Look at the Gentlemen of the Jury, and speak out; why do you hesitate, man? I will give you as much time as you like; I will repeat the question.
- I hope the law will be more merciful.
Garrow: I dare say you, being an old smuggler, do wish it may be so; upon your oath, do you, or do you not, know that it is a capital offence to shoot at a custom-house officer?
- Yes, I do; but I did not understand you, indeed.
Garrow: Do you mean now to tell the Jury that you did not understand that question; was not you taken up for this offence?
- I was taken up, and put into Norwich gaol.
Garrow: Did not you expect to be prosecuted for that offence?
- Yes; I know it is at your mercy.
Garrow: You know you are not to be prosecuted; as you have given evidence, it would be very wrong you should; you know you are King's evidence, and you are not to be prosecuted?
- I do not know that I am not, I am sure.
Court: You do not expect now to be prosecuted?
- I hope in God I shall not.
Garrow: And you give your evidence now under that hope, do you not?
- Yes, I do.
Garrow Examines King's Evidence
Here is another Garrow case which inspired this episode of Garrow’s Law. The offence in question this time was coining:Peter Gregory, Coining Offences, 20th April 1803 - Old Bailey Online
Q.You thought it was a better thing, when you were likely to be hanged yourself, to turn King's evidence? A. No; Sir Richard Ford, in a very feeling manner, told me, that Warren and Gregory were in the habit of doing those things for a great while back, - that a great many knew of it, - that it was a pity to let such people escape, and that it was in my power to give evidence against them, which I did; I thought I was in duty bound to do it.
Q.You know, by giving that account, you would be saved yourself?
A. No, I have no purpose at all.
Q.You think you shall be hanged now?
A. I don't know it.
Q.Upon your oath, don't you believe, in consequence of the evidence you have given to-day, you shall be saved from prosecution?
A. I don't know whether I shall be saved, or hanged, myself.
Q. You have been asked how long you have been in custody; had you ever been in custody for the Bank-note passed to Mrs. Goodall?
A.No; Sir Richard took me over, and swore me to my own confession.
Q.Was that what you said, or meant to say, to this gentleman?
A.Certainly it was.
Q. The whole account you have given here of the connection with those persons, is the truth?
Pious Perjury is the final element that has been built into the episode. This term is used to describe what happens when juries wilfully go against the evidence to reach a conclusion that they feel is just. Garrow often indirectly encouraged juries to do this, as happened in the case of John Merryman and William Pickering for theft, which was discussed in detail on the Garrow Society website.Trial of John Merryman and William Pickering for Theft by Housebreaking - Garrow Society
- John Southouse
- Alun Armstrong
- Lady Sarah Hill
- Lyndsey Marshal
- Sir Arthur Hill
- Rupert Graves
- Aidan McArdle
- Judge Buller
- Michael Culkin
- George Pinnock
- Harry Melling
- Matthew Bambridge
- Derek Riddell
- Lady Henrietta Armistead
- Olivia Grant
- Southouse's Doctor
- Mark Prendergast
- Nick Pitt
- David Lawrence
- Thomas Capel
- David Verrey
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