The Bar and the Old Bailey, 1750-1850 (review)

Between 1750 and 1850, the English criminal-justice system became much more progressive and humane. Legal scholars have examined its changes in detail with regard to the alterations in the legal rules themselves—the diminution of the death penalty, for example, and the abolition of much of the rest of the Bloody Code that had prescribed such harsh measures as transportation to penal colonies even for persons convicted of property crimes. Scholars of English society also have turned their focus to the ways in which England's administration of justice came to look much less Hogarthian in the 1800s than it had in the previous century; the gruesome spectacle of the public hanging, for instance, practically disappeared by the middle of Victoria's reign. Historians and criminal-justice experts have followed the role of the jury in this liberalization of criminal justice, giving examples of jury members' reluctance to impose the death penalty for petty crimes.

Scholars of literature long have recognized the degree to which the criminal-justice system was a key theme of novelists from Henry Fielding and Daniel Defoe through Charles Dickens and Anthony Trollope. For all their attention to the theory and application of the criminal law, however, scholars have paid little heed to the role of lawyers during the mid-eighteenth through mid-nineteenth century. May has written a thoughtful, detailed, and painstakingly researched study that focuses on criminal lawyers who practiced in London's central criminal court, the Old Bailey, during this era of fundamental legal change.

In terms of lawyers' roles in English criminal trials, May chronicles a series of changes that were subtle in this 100-year period. She identifies certain moments when lawyers rose to prominence in criminal trials: the crisis in the justice system in the 1780s, for instance, that accompanied the close of the American colonies as repositories for transported convicts; Parliament's passing of the Prisoners' Counsel Act in 1836, giving defendants a right to have defense lawyers speak on their behalf to juries; and the Courvoisier case of 1840, in which the duty of defense counsel to represent clients whom they knew to be guilty came under scrutiny.

May notes that eighteenth-century criminal trials generally were contests among amateurs. She argues that the vast majority of defendants had no defense counsel and that most prosecutors (though present at trials) maintained a restrained role. By the middle of the nineteenth century, lawyers almost always were present for both the defense and prosecution. In spite of the importance of these developments, however, May argues that lawyers in criminal trials—especially for the defense—were the exception rather than the rule well into the 1800s. The galvanizing effect of defense lawyers' presence, rather than their actual numbers, was key.

May presents compelling evidence about the attitudes and actions of criminal lawyers from her meticulous combing of the Old Bailey Sessions Papers, as well as a variety of other sources including solicitors' briefs, Inns of Court documents, and the periodicals aimed at the legal profession. May's portraits of the practitioners at the Old Bailey are memorable, numerous, and carefully correlated with portrayals in literature and the press. She includes a thorough appendix listing counsel who appeared at the Old Bailey between 1783 and 1850, which includes biographical references. May draws skillfully on her rich collection of interdisciplinary sources in these descriptions and characterizations of the criminal bar. Her analysis of the criticism directed toward Charles Phillips for continuing to defend a murderer of whose guilt he had personal knowledge in the Courvoisier case, for instance, relies upon legal periodicals as well as newspapers and Dickens' correspondence. Although the book is lengthy and detailed in its own right, many of May's citations make such creative use of sources that they beg to be brought into the main text—for instance, a footnote on one of Trollope's more obscure works, The New Zealander (1855-1856), to illustrate...