Garrow's Law, Revisited

I previously blogged about a terrific BBC television series, Garrow's Law, which is available in DVD format from Acorn.  Garrow's Law presents a somewhat fictionalized version of the life and times of William Garrow, the crusading barrister who helped to create the adversary trial system in England.  I just saw season 3 of the series, which is to be its last.  The first episode of series 3 focuses on a man who attempted to assassinate King George III.  Is the defendant insane?  If so, how does that affect his legal responsibility for his acknowledged acts?  How should the state inflict punishment in such a situation?  In another episode, Garrow essentially put the British colonial empire on trial; he exposed its human-rights abuses in a manner that profoundly embarrassed some of the most powerful members of the English establishment. 

The backdrop to Garrow's court-room triumphs is his troubled domestic life, which is shared with Lady Sarah Hill, the estranged wife of a vengeful aristocratic and would-be politician who refuses to allow Lady Sarah to have custody of their child, even though he believes the child is actually Garrow's.  It seems that there are no lengths to which Sir Arthur Hill will not go to make Lady Sarah suffer.  At one point, he says something along the lines of  "My only pleasure lies in inflicting pain on her."  The law at the time gave fathers absolute rights over their children, and Lady Sarah is seen over and over again trying to win custody of baby Samuel, all to no avail.  Eventually, I ran out of patience with Lady Sarah and her suffering and more or less stopped paying attention to her.  The trial scenes, however, remained fascinating throughout series 3 and made for compelling television.  Garrow's Law is highly recommended!  I'm going to miss it.

Celebrating William Garrow

Did you ever wonder where the presumption of innocence in criminal trials came from?  What about the inadmissibility of hearsay evidence?  I had always assumed (incorrectly, as it turned out) that they had been part of British law at least as far back as the Normans.  Recently, however, thanks to a terrific British television series, Garrow's Law, I learned about the man who was responsible for the introduction of these important principles into the Anglo-American legal tradition.  The series uses real-life legal cases argued by Garrow at the Old Bailey to dramatize the career and life of the man who brought about what amounted to a revolution in the English common law. 

Sir William Garrow (1760-1840) isn't as well known as he deserves to be, but the TV series and recent  biography (John Hostettler and Richard Braby, Sir William Garrow:  His Life, Times and Fight for Justice, 2009) should help to rescue him from obscurity.  Garrow was a  crusading barrister who was a fixture at the Old Bailey--the Central Criminal Court in London--for about ten years in the late eighteenth century.  According to the preface of the Hostettler and Braby biography, Garrow's "aggressive defence of clients creat[ed] a new phenomenon in the criminal trial."  In fact, Garrow "led the way in altering the whole relationship between the state and the individual by his role in the revolutionary introduction of adversary trial."  (p. ix).  Garrow's skills at cross examination were legendary, and he helped to create rules of criminal procedure meant to protect the rights of prisoners.  According to Hostettler and Braby, "adversary trial was given constitutional recognition in the United States Bill of Rights and spread to all countries influenced by the common law."  (p. xi)  Garrow eventually became a member of Parliament, Solicitor-General, Attorney-General, and a judge, but was mostly forgotten after his death.  

Drawing mainly upon his career in the Old Bailey, Garrow's Law ran for three series of four episodes each.  The BBC recently decided not to renew it for a fourth series, which is a shame because I found it to be well acted and compelling.   The producers of the series drew upon the Old Bailey's archives for their inspiration, a process that is documented in this short film about the making of the show.   The Garrow Society website also offers information about his life and work.  All are well worth checking out.

Iceland rewrites its constitution: radical democracy

Iceland has a current Constitution conveniently posted to the Internet in English by its government. It is a pretty good looking document to my untutored eye, with 79 Articles in seven roman numeral sections. The Constitution sets Iceland up as a Republic, with a democratically elected government. It lays out the powers, duties and limits of power for the President, the judiciary and the Althingi, the world's oldest elective legislative body which has roots in ancient Icelandic history, founded in 930 AD. Section VI sets up the Evangelical Lutheran Church as the official state church, entitled to state support (surprise!), but also provides in Article 63:

...the right to form religious associations and to practice their religion in conformity with their individual convictions. Nothing may however be preached or practised which is prejudicial to good morals or public order.

(Article 64) ... Everyone shall be free to remain outside religious associations. No one shall be obliged to pay any personal dues to any religious association of which he is not a member.

A person who is not a member of any religious association shall pay to the University of Iceland the dues that he would have had to pay to such an association, if he had been a member. This may be amended by law.

In section VII, there are a list of human rights guaranteed by the Icelandic Constitution. I don't know what (if anything) in the Constitution has caused the Icelanders to decide, but they are rewriting this document. I found a very nice statement from the Icelandic government webpage describing the history of constitutions and rewriting them, amending them, in Iceland:

Icelanders were given their first constitution in 1874 when Iceland was still part of the Danish kingdom. Though it may be said that it is still valid in some respects, it has since been significantly amended. The first important change was in 1903, when Iceland was granted Home Rule, which went into effect in 1904. Considerable changes were made in 1915 when voting rights were expanded and women were granted the right to vote for seats in Althingi, the Icelandic parliament. A new constitution went into effect in 1920 following the recognition in 1918 of Iceland as independent of Denmark, though still in a personal union with the Danish king. This version of the constitution remained in force virtually unchanged until 1944 when the Republic of Iceland was founded.

The present constitution dates from 17 June 1944, and has been amended six times since. These amendments have especially concerned setting constituency boundaries and guaranteeing equal voting rights, but the most important change was made in 1995 when the human rights section was reviewed and reworded to conform to the international agreements of which Iceland is a signatory.

(the government website credits: Iceland - The New Millenium Series, Carol Nord ehf. Text by Professor Sigurður Líndal.

Iceland has gotten a lot of notice in the blogosphere (and this Irish Constitution thread), and the Seattle Times) because their new Constitutional Assembly to rewrite the Constitution is open to all citizens, with many non-politicians, "plain" folk entering their names. When I looked for news stories more recent, and maybe straight from Iceland, I discovered that they have just held the elections for the Constitutional Assembly, and had a disappointingly low turnout. Iceland Review Online reports that it was the lowest turnout in their history, with only 36% of voter turnout, countrywide. The short article includes quotes from various experts who analyze the possible reasons for the poor turnout. They consider everything from voter fatigue to lack of political campaigning or coherent campaigns by candidates, to perceived lack of need for a new Constitution. From the Yahoo News piece,

(snip) Pressure mounted for action after the nation's economic collapse in 2008, an event punctuated by ordinary citizens gathering outside the Althingi, the parliament, banging pots, pans and barrels — a loud, clanging expression of fury. The meltdown was seen not only as a failure of the economy but of the system of government and regulatory agencies. Many came to believe a tighter constitutional framework — including a clearer division of powers — might have been able to minimize that damage, or even prevent it.

"It is very important for ordinary citizens, who have no direct interest in maintaining the status quo, to take part in a constitutional review," said Prime Minister Johanna Sigurdardottir. "We are hoping this new constitution will be a new social covenant leading to reconstruction and reconciliation, and for that to happen, the entire nation needs to be involved." (snip)

Icelanders debated their values and turned to questioning the foundations of their society, including those that had facilitated the boom. Anger grew as more instances of misdeeds and incompetence in the private and public sector were exposed. Icelanders woke up to the harsh fact that their country, which had consistently been at or near the top of the Transparency International anti-corruption index, was, in fact, steeped in corruption.

That was ultimately confirmed in a 2,000-page report following a special parliamentary investigation. That report showed that the foundations of Icelandic society were decayed and that a sweeping revision of the social framework was needed.

Sigurdardottir says a new social covenant can at least assist in "restoring the public's faith in the government."

The constitutional assembly will be made up of 25 to 31 delegates, the final number to be determined by a gender and equality ratio. It will be made up of regular citizens elected by direct personal voting. Anyone is eligible to stand for election, with the exceptions of the president, lawmakers and the committee appointed to organize the assembly.

The assembly will draft a proposed new constitution next year. They will use material from another extraordinary project earlier this year in which 1,000 randomly chosen Icelanders — aged 18-89 — offered their views on what should be in the constitution.

Now the race is on to be among the charter's authors, with 523 people in the running. Truck drivers, university professors, lawyers, journalists and computer geeks are all among the candidates. All have been given equal air time on Icelandic radio to make their platforms known.

Those elected will receive a salary equal to that of Iceland's lawmakers while the constitutional review takes place, and Icelandic employers are legally obliged to grant leave to any employees elected to the assembly.

The Yahoo News story goes on to interview 3 different candidates on their views, which ranged from enthusiastic, to a candidate who is running to prevent the Assembly. This last guy says it's not needed, and is a ridiculous expense at a time when the country is in economic crisis. He says the constitution had nothing to do with Iceland's bank collapse in 2008, which precipitated the country's complete economic meltdown. According to the article which is pretty much repeated in every Internet posting, Iceland has never written its own constitution until now, having previously just adopted Denmark's constitution pretty much wholesale and then tinkered on it. Whatever happens, it will be interesting to follow. Iceland is pioneering again in democratic actions.

Tip of the OOTJ hat to our colleague & former OOTJ blogger, Jim Milles, who also introduced me to Allthing history many years ago. The image is the Law Rock, at Thingvellir, (where the Allthingi met originally), showing the Law Speaker, another bit of Icelandic legal history, and (frankly) much more colorful than the photos of the current Allthingi building. Courtesy of Wikipedia article on the Allthingi, and credited as W.G. Collingwood "19th century Alþing in session."