Book Review

The transformation of the English felony trial has increasingly occupied historians' attention. Over the last twenty years or so a number of articles on "the coming of the lawyers" have appeared, articles that have focused for the most part on eighteenth-century developments. In Advocacy and the Making of the Adversarial Criminal Trial, David Cairns turns his attention to the nineteenth century, in particular to the Prisoner's Counsel Act of 1836 (PCA). This statute formed a watershed in the history of the English criminal trial, for it not only recognized the right of a defendant in a felony case to counsel but allowed defense counsel to address the jury.	1
Cairns relates the timing of this legislation to the gradual repeal of the death penalty and argues for "a close correlation between many features of Foucault's description of the technique of penal semiotics and the ideas of English penal reformers such as Romilly and the Criminal Law Commissioners" (93): "the ideals of the new penal logic were rules of minimum quantity and maximum certainty." Allowing defendants to acquire "the best professional defence" would, like removing the death penalty from the majority of felonies, ensure more convictions (96–97). Through their investigations of the truth, counsel would eliminate doubt and inspire greater confidence in jurors when reaching their decisions.	2
His brief recourse to Foucault notwithstanding, Cairns's history of the emergence of the modern criminal trial is ultimately Whig history; the rise of adversarialism is described in terms of a triumphal progression toward a form of trial he considers best calculated to reveal the truth. This interpretation is open to dispute. Issue might also be taken with his unsubstantiated assertion of public confidence in adversarial process. In the 1830s most lawyers—Brougham is an obvious exception—doubted its efficacy in the criminal courts. Professional justifications for the adversarial criminal trial derived after the fact of the PCA and, while the bar may have come to terms with it by 1850, there are strong indications in the newspaper press and nineteenth-century fiction that the general public remained unconvinced.	3
There are also problems with Cairns's chronology of developments. Neglect of the eighteenth-century Old Bailey Sessions Papers—a source he considers overrated and overused—and other pamphlet sources results in the mistaken attribution of "the emergence of a duty on prosecution counsel in addressing the jury to restrain his advocacy within narrow limits" to "the first half of the nineteenth century" (8). The unwritten etiquette of the criminal bar in this respect is quite clear by the 1780s and can almost certainly be traced back to an even earlier date. And where Cairns describes counsels' expressions of personal belief in the innocence of their clients as a "startling new issue in forensic morality" (154) in 1856, that issue was the subject of discussion at least twenty years earlier. It was addressed in Brougham's 1836 article on advocacy in the Edinburgh Review; it formed the subject of a brief yet pointed article published in the Legal Observer in 1838; and it was one of the key issues in the controversy over Charles Phillips's handling of the defense of Courvoisier in 1840.	4
More seriously, Cairns's history of advocacy is weakened by his dismissal of the eighteenth-century developments that preceded the PCA and by his treatment of previous historians of the criminal trial. Few references to a rich literature on the history of criminal justice are provided; discussion of the relationship between religion and the criminal law, for example, makes no reference to the work of Randall McGowen on the subject. Advocacy and the Making of the Adversarial Criminal Trial also contains much ungenerous and unfounded criticism of experts in the field. The importance of the PCA to the history of the criminal trial in no way negates the value of John Langbein and John Beattie's work on the eighteenth century, nor would they deny the signi ficance of that legislation. Cairns is also incorrect in claiming that the "history of advocacy . . . has never been a subject for scholarly consideration" (5). Interest in advocacy lies at the heart of Beattie's 1991 article, "Scales of Justice," which places the PCA in the context of earlier developments, while the implications of the Courvoisier case for advocacy attracted sustained and thoughtful attention in David Mellinkoff's 1975 The Conscience of a Lawyer.	5
Finally, while Cairns argues that previous historians have been too eager to declare the triumph of adversarial procedure by the turn of the nineteenth century, he falls into a similar trap himself: "The enactment of the Prisoners' Counsel Act and the rationalisation of vigorous advocacy meant that by the middle of the century the criminal trial had largely achieved its adversarial form familiar today." It meant no such thing. By 1850 the theory of adversarial procedure in the criminal trial had been embraced by the bar, that much is true. But we have no evidence of actual practice in the courts. In how many felony trials were counsel employed by both sides? Given that no form of legal aid was available until the early twentieth century, it is highly probable that the vast majority of defendants continued to appear without the benefit of counsel. Determining the proportion of trials that could genuinely be characterized as professional, adversarial contests would require a systematic analysis of the court records, which is not offered here: Cairns's selective approach with respect to trial records involves analysis of four trials.	6
The claim made in the preface that Advocacy and the Making of the Adversarial Criminal Trial, 1800–1865 provides "the first full explanation of how the common law system of criminal trial was changed into an adversarial system" overstates the case. A full explanation lies far in the future, as we are still in the process of gathering information. But a full account would provide a synthesis of developments over the centuries rather than erecting an artificial and counterproductive fence at 1800. It would extend the narrative to consider the advent both of public prosecution and of legal aid. It would also entail recognition, rather than a blanket dismissal, of the work of established scholars in the field. As historians we engage in dialogue not only with the past but with each other. Cairns has chosen instead to create an adversarial contest of his own, one that pits nineteenth-century developments against eighteenth-century ones and his work against that of everyone else. This contest has done little to further the truth.	7
Allyson N. May University of Toronto

Content in the History Cooperative database is intended for personal, noncommercial use only. You may not reproduce, publish, distribute, transmit, participate in the transfer or sale of, modify, create derivative works from, display, or in any way exploit the History Cooperative database in whole or in part without the written permission of the copyright holder.