The mystery of old bailey counsel

Cambridge Law Journal

Volumn 65, Issue 1, 2006, Pages 159-173

  Gallanis, T P ^a  

^a School of Law   (United Kingdom)

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[No Author keywords available]

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EID: 85010160400     PISSN: 00081973     EISSN: 14692139     Source Type: Journal    
DOI: 10.1017/S0008197306007070     Document Type: Article

References (104)

1. A. Christie, The Mysterious Affair at Styles (New York 1975 commemorative edition), p. 93 (original copyright 1920).
2. J.M. Beattie, Crime and the Courts in England, 1660–1800 (Oxford 1986), p. 5. Beattie, Crime, p. 5.
3. For perjury as misdemeanour, see e.g. Thomas Davis, Old Bailey Sessions Papers (“OBSP”) May 1796 (no. 383), 611
4. Joseph Carter, OBSP May 1797 (no. 408), 407. OBSP from 1674 to 1834 are accessible on the Internet, at www.oldbaileyonline.org.
5. See T.P. Gallanis, “The Old Bailey Proceedings Online” (2005) 26 Journal of Legal History 91.
6. For receiving stolen goods as misdemeanour, see e.g. Joseph Wheeler and William Wheeler, OBSP May 1797 (no. 407), 401
7. Mary Dukeson, OBSP July 1798 (no. 463), 478.
8. Defendants accused of treason traditionally had no right to counsel, but this right was granted by the Treason Act 1696, 7 & 8 Will. 3, ch. 3, s. 1. For the history of this statute, see A. Shapiro, “Political Theory and the Growth of Defensive Safeguards in Criminal Procedure: The Origins of the Treason Trials Act of 1696” (1993) 11 Law and History Review 215.
9. The anomaly of a right to counsel in misdemeanour but not in felony remains a puzzle. One possible explanation, suggested by Professor Langbein, points to the civil character of many misdemeanours: “[I]t would have been awkward to forbid assistance of counsel because archaic forms proceduralized these [essentially civil] matters as misdemeanor.”
10. J.H. Langbein, “The Criminal Trial before the Lawyers” (1978) 45 University of Chicago Law Review 263, 308.
11. This explanation is carried forward in J.H. Langbein, The Origins of Adversary Criminal Trial (Oxford 2003), pp. 36–37.
12. A felony defendant technically had the right to call upon a lawyer to argue “point[s] of law” (see W. Hawkins, A Treatise of the Pleas of the Crown (London 1721), vol. 2, p. 400), but in practice many judges prevented the use of lawyers for this purpose, claiming that the court served as the defendant's counsel.
13. J.H. Langbein, “The Prosecutorial Origins of Defence Counsel in the Eighteenth Century: The Appearance of Solicitors” [1999] C.L.J. 314, 316.
14. See also Langbein, Origins, pp. 28–33.
15. Hawkins, Treatise, vol. 2, p. 400.
16. T. Smith, De Republica Anglorum (M. Dewar ed., Cambridge 1982), p. 114 (originally published 1583, written 1562–65).
17. Langbein, Origins, ch. 1.
18. Langbein, Origins, p. 106
19. Langbein, “Criminal Trial” at p. 307
20. J.M. Beattie, “Scales of Justice: Defense Counsel and the English Criminal Trial in the Eighteenth and Nineteenth Centuries” (1991) 9 Law and History Review 221, 223.
21. Langbein, “Prosecutorial Origins”, at p. 363.
22. S. Devereaux, “The City and the Sessions Paper: ‘Public Justice’ in London, 1770–1800” (1996) 35 Journal of British Studies 466, 468.
23. J.H. Langbein, “Shaping the Eighteenth-Century Criminal Trial: A View from the Ryder Sources” (1983) 50 University of Chicago Law Review 1, 25.
24. Beattie, “Scales”, at p. 228.
25. A.N. May, The Bar and the Old Bailey, 1750–1850 (Chapel Hill 2003), p. 34.
26. T.P. Gallanis, “The Rise of Modern Evidence Law” (1999) 84 Iowa Law Review 499, 545.
27. Langbein, “Shaping”, at p. 129
28. See e.g. Mary Smith, OBSP July 1755 (no. 268), 234–5.
29. Thomas Newton et al., OBSP January 1790 (no. 128), 139. In extremely rare circumstances, a judge might exercise his discretion to permit defence counsel to speak to the jury, as happened during the trial of William Davis, who was so ill that he could not speak for himself.
30. See William Davis, OBSP Dec. 1771 (no. 40), 25. In most instances, however, the judges enforced the limits on defence counsel's role.
31. Unlike other felonies, homicide had an element of public prosecution, because in the event of any violent or unexplained death a coroner's inquest would precede trial at the Old Bailey. But in the eighteenth century, inquest and trial had only a tenuous connection: despite the inquest's outcome, the defendant would almost always be charged with murder and expected to offer mitigating evidence at trial. Beattie, Crime, p. 80.
32. On the coroner's role, see R.F. Hunnisett (ed.), Wiltshire Coroner's Bills: 1752–1796 (Wiltshire Record Society, 1981).
33. J.H. Langbein, “The Privilege and Common Law Criminal Procedure: The Sixteenth to the Eighteenth Centuries” in R.H. Helmholz et al., The Privilege Against Self-Incrimination: Its Origins and Development (Chicago 1997), pp. 82–92.
34. In Professor Langbein's words: “The essential purpose of the criminal trial was to afford the accused an opportunity to reply in person to the charges against him.” The Privilege Against Self-Incrimination: Its Origins and Development, at p. 82.
35. Smith, De Republica Anglorum, p. 114.
36. Langbein, “Privilege”, at p. 83.
37. Beattie, Crime, p. 375.
38. Gallanis, “Rise”, at pp. 537–50.
39. Langbein, “Privilege”, at pp. 99–100.
40. Pursuant to statute, English law now explicitly authorises judges and juries to draw adverse inferences from a defendant's silence. Criminal Justice and Public Order Act 1994, s. 35.
41. Langbein, “Privilege”, at p. 98.
42. Prisoners' Counsel Act 1836, 6 & 7 Will. 4, ch. 114.
43. For a discussion of the legislative history of this act, see D.J.A. Cairns, Advocacy and the Making of the Adversarial Criminal Trial, 1800–1865 (Oxford 1998), pp. 67–97.
44. For a critique of Dr. Cairns' book, see A.N. May, “Book Review” (2001) 19 Law and History Review 675.
45. For scholarship on this transformation, in addition to the books and articles cited in previous footnotes, see also C. Allen, The Law of Evidence in Victorian England (Cambridge 1997), pp. 144–51
46. T.P. Gallanis, “La Preuve en ‘Common Law’: Wigmore Aujourd'hui” (1996) 23 Droits 79
47. S. Landsman, “The Rise of the Contentious Spirit: Adversary Procedure in Eighteenth Century England,” (1990) 75 Cornell Law Review 497
48. J.H. Langbein, “Historical Foundations of the Law of Evidence: A View from the Ryder Sources” (1996) 96 Columbia Law Review 1168
49. J.B. Post, “The Admissibility of Defence Counsel in English Criminal Procedure” (1984) 5 Journal of Legal History 23.
50. V.A.C. Gatrell, The Hanging Tree (Oxford 1994), pp. 7, 21.
51. These statutes are helpfully collected in T. Dogherty (ed.), The History of the Pleas of the Crown by Sir Matthew Hale (London 1800), vol. 1, pp. 720–45.
52. 5 Geo. 3, ch. 14, s. 1.
53. 6 Geo. 3, ch. 36, and 6 Geo. 3, ch. 48.
54. 7 Geo. 3, ch. 50, s. 1.
55. 16 Geo. 3, ch. 30, s. 1.
56. The descriptions come from A. May, The Old Bailey Bar, 1783–1834 (Ph.D. Disseration, University of Toronto, 1997), p. 237.
57. Estimating the size of the practising bar in the eighteenth century is notoriously difficult. There are three main primary sources, each of which has significant drawbacks. First, published records from the four inns of court contain the names of the new barristers called to the bar each year. See R.J. Fletcher (ed.), The Pension Book of Gray's Inn (London 1901- 1910)
58. F.A. Inderwick and R.A. Roberts (eds.), A Calendar of the Inner Temple Records (London 1896–1936)
59. The Records of the Honourable Society of Lincoln's Inn: The Black Books (London 1897–1968)
60. H.A.C. Sturgess (ed.), Register of Admissions to the Honourable Society of the Middle Temple (London 1949).
61. See D. Lemmings, Professors of the Law: Barristers and English Legal Culture in the Eighteenth Century (Oxford 2000), pp. 71- 73.
62. These sources, however, exclude barristers who practised exclusively elsewhere, such as in provincial courts or at the Old Bailey. Third, the yearly Law List contains the names of lawyers practising in different capacities (e.g. barrister, advocate, conveyancer, attorney). But the Law List only began in the late 1770s and thus cannot provide information for earlier years. See D. Duman, The Judicial Bench in England, 1727–1875: The Reshaping of a Professional Elite (London 1982), p. 8.
63. For the use of this proxy and a discussion of its limitations, see Lemmings, Professors, pp. 71–3.
64. Lemmings, Professors, p. 214.
65. For a tabular description of Old Bailey defendants who did hire counsel, by social class or occupation, see Professors, tbl. 6.3.
66. C.H. Feinstein, “Pessimism Perpetuated: Real Wages and the Standard of Living in Britain during and after the Industrial Revolution” (1998) 58 Journal of Economic History 649, 652–3.
67. L.D. Schwarz, “The Standard of Living in the Long Run: London, 1700–1860” (1985) 38 Economic History Review 24, 34.
68. This suggestion was made in Lemmings, Professors, p. 217.
69. Lemmings, Professors, p. 213.
70. Professors at p. 213.
71. Lemmings, Professors, p. 213 (providing data from 1740).
72. See also Langbein, “Criminal Trial”, at p. 312.
73. A.R. Ekirch, Bound for America: The Transportation of British Convicts to the Colonies, 1718- 1775 (Oxford 1987), p. 1 (estimating that more than two-thirds of all felons convicted at the Old Bailey in the eighteenth century were transported).
74. Through the exercise of judicial or royal mercy, some defendants convicted of capital crimes were transported rather than being executed. Bound for America: The Transportation of British Convicts to the Colonies, at p. 17. In the main, however, transportation was a punishment for noncapital crime.
75. See Ekirch, Bound; A.E. Smith, Colonists in Bondage: White Servitude and Convict Labor in America, 1607–1776 (Chapel Hill 1947)
76. Beattie, Crime, pp. 450–519.
77. From 1727 until 1772, the subsidy was £5 for each convict from London and neighboring counties. Ekirch, Bound, p. 71.
78. Ekirch, Bound, p. 120.
79. Capital convicts sentenced to transportation, on the other hand, were typically banished for fourteen years or for life. Bound, at p. 17.
80. Ekirch, Bound, pp. 86–94, 147–56.
81. Ekirch, Bound, pp. 40, 62–3, 194.
82. Ekirch, Bound, pp. 58–61.
83. Ekirch, Bound, p. 177.
84. Ekirch, Bound, pp. 178–85.
85. D. Defoe, The Fortunes and Misfortunes of the Famous Moll Flanders (London 1929), pp. 84–5 (originally published 1722).
86. Ekirch, Bound, p. 228.
87. For similar evidence from the Surrey assizes and quarter sessions, see Beattie, Crime, pp. 560–3.
88. Ekirch, Bound, p. 229.
89. Ekirch, Bound, p. 229 (quoting the Solicitor-General, who told Parliament that “when tranquility was restored to America, the usual mode of transportation might be again adopted”).
90. Ekirch, Bound, p. 230.
91. Beattie, Crime, p. 566.
92. G. Fisher, “The Birth of the Prison Retold” (1995) 104 Yale Law Journal 1235, 1268.
93. See also R. McGowan, “The Well-Ordered Prison: England, 1780–1865” in N. Morris and D. Rothman (eds.), The Oxford History of the Prison: The Practice of Punishment in Western Society (Oxford 1995), pp. 84–5.
94. Beattie, Crime, pp. 599–601.
95. Fisher, “Birth”, at p. 1237.
96. A.G.L. Shaw, Convicts and the Colonies: A Study of Penal Transportation from Great Britain and Ireland to Australia and Other Parts of the British Empire (London 1966), p. 108
97. M. Flynn, The Second Fleet: Britain's Grim Convict Armada of 1790 (Sydney 1993), p. 1.
98. For a vivid account of the experiences of one woman who arrived in Botany Bay in 1788, see J. Cook, “To Brave Every Danger”: The Epic Life of Mary Bryant of Fowey, Highwaywoman and Convicted Felon, Her Transportation and Amazing Escape from Botany Bay (London 1993), pp. 93–130.
99. W. Tench, 1788: Comprising “A Narrative of the Expedition to Botany Bay” and “A Complete Account of the Setttlement at Port Jackson” (T. Flannery ed., Melbourne 1996), pp. 80–2.
100. Tench, 1788, pp. 53–6.
101. M. Ignatieff, A Just Measure of Pain: The Penitentiary in the Industrial Revolution, 1750–1850 (New York 1978), p. 84.
102. See also Fisher, “Birth”, at pp. 1268–1269.
103. It should also be noted that judges at assize used their discretion under the Hulks Act 1776 and the Penitentiary Act 1779 to impose longer prison sentences and hard labour. Beattie, Crime, pp. 576–577. Thus, even outside the jurisdiction of the Old Bailey, we can see that changes in non-capital punishment after 1775 might have prompted more defendants to seek representation by counsel.
104. May, Bar and Old Bailey, p. 40.