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

Inspired by debates over the role played by the criminal law in early modern and modern English social relations, historians over the last thirty years have demonstrated a strong interest in the development of criminal procedure and the institutions of judicial administration. There is a considerable historical literature that explores changes in the process of prosecuting both felonies and misdemeanors in England. Historians have examined how the criminal trial was experienced by individuals of different social backgrounds and gender, how discretion was exercised at various stages of the trial by a range of participants, and how this evolved over time. John Langbein, John Beattie, David Cairns, and others have drawn attention to a set of actors that became increasingly important to this process during the late eighteenth and nineteenth centuries, the upper branch of the legal profession. These scholars have explored how "the coming of the lawyers" changed criminal procedure and the prosecution of crime in England. Allyson May's The Bar and the Old Bailey, 1750-1850, is among the most thoroughly-researched explorations of the relationship between the upper branch of the legal profession and reforms in the criminal trial to date. May provides an in-depth examination of the emergence of a criminal bar practicing at the Old Bailey in London, emphasizing its role in, and reaction to, the transformation of the felony trial from a direct confrontation between the victim and accused into a contest between professional advocates. May challenges the Whigish notion that increasingly "rights-oriented" barristers exerted pressure to obtain a larger place in the felony hearings, finding that, in fact, the overwhelming majority of the London bar opposed the expansion of its role that came with the 1836 Prisoners' Counsel Act.

In the eighteenth century, and indeed, for all of the period under consideration in May's book, the overwhelming majority of felony trials at the Old Bailey took place without legal counsel engaged on either side. The responsibility prosecuting crimes lay largely with the victims/accusers. Likewise, the accused was expected to answer the charges personally and conduct his or her own defense. Even in the unlikely event that a defendant could afford legal counsel, it was of limited utility, as lawyers were not permitted to speak to the facts of the case and could only argue points of law. Gradually, larger institutions prosecuting more complex crimes, such as forgery, engaged counsel to conduct their cases. Likewise, anxieties about rising crime also led some individual prosecutors to more readily engage counsel, as did a system of rewards for the prosecution of crimes. This created a perceived imbalance in the trial, and fears about the possibility of malicious or false prosecutions stimulated by the reward system caused the Bench to permit defense counsel to cross examine witnesses, but not address the jury. May's biographical exploration of the careers of the men who practiced at the Old Bailey reveals that they were not civil libertarians clamoring for a greater role in the criminal trial. Rather, the transformations that expanded the duties of counsel were of an ad hoc, piecemeal, and practical nature. Still, they provided the thin end of the wedge for the adversarial trial.

This was, however, a very thin edge indeed, as the appearance of counsel in felony trials at the Old Bailey remained quite rare. The majority of the practice at the Old Bailey was dominated by a small number of highly prominent barristers, such as John Silvester, William Garrow, and Charles Philips. Very few Old Bailey barristers managed to make a name for themselves at the Common Law Courts in Westminster Hall, and a small number were eventually promoted to the Bench at Old Bailey, though May finds that these individuals did little to enhance the reputation of the London bar. May demonstrates that for more junior members of the Bar, constructing a career out of limited demand for their services could be quite a challenge...