Book Review

The nineteenth century witnessed fundamental alterations in trial procedure, the result of, inter alia, the Prisoners' Counsel Act of 1836, which permitted persons accused of felony to make their full defense by counsel, and the Prisoners' Evidence Act of 1898, which allowed the accused to testify under oath. A narrative encompassing these changes is both welcome and overdue and Bentley's English Criminal Justice in the Nineteenth Century attempts just that. His subject is "the protections which nineteenth-century law conferred upon the accused, the handicaps to which he was subject, and the extent to which these were during the century variously added to, expanded, reduced and abolished" (xv). While some attention is paid to summary trial, the bulk of the book is devoted to trial by indictment and its structure follows the chronology of the prosecution process, from committal through the trial itself, concluding with an examination of the limited appellate remedies then available.	1
Bentley is a former trial lawyer now on the circuit bench and his professed aim in this study is not merely "to tell how those accused of crime in nineteenth-century England were tried" (xii) but also to "assess how far the nineteenth-century criminal trial system conformed to the present-day concept of a fair trial" (xv). There are, of course, dangers inherent in his second objective. Writing a history of advocacy in the middle of the nineteenth century, William Forsyth commented indignantly that remarks made by seventeenth-century lawyer Sir John Davies on the subject of the criminal trial ignored the presumption of innocence--which, at the time Davies was writing (1615), did not exist. Not surprisingly, nineteenth-century justice falls similarly short of modern standards, although Bentley is also quick to warn that recent erosions of evidential protections threaten what we now consider fair and present the possibility of the nineteenth century becoming a "golden age" with respect to the rules of criminal evidence.	2
The primary research undertaken to produce English Criminal Justice is impressive. Bentley's study is rooted in a painstaking examination of trial reports in The Times and contemporary discussion of professional issues in the legal periodical press. From The Times, which began publication in 1785 under the title of the Daily Universal Register, can be gleaned the kinds of procedural detail once available in the printed Old Bailey Sessions Papers but from the end of the eighteenth century deliberately excluded (Simon Devereaux, "The City and the Sessions Paper," Journal of British Studies 35 [October 1996]: 466–503, chronicles this development). Bentley's use of both newspaper accounts and the law reports has enabled him to provide a valuable overview of the mechanics of trial in the nineteenth century. His focus on the press also results in an interesting, if brief, discussion of the contested issue of pretrial publicity.	3
His treatment of the legal profession is not good, however, consisting largely of uncritical reproduction of contemporary complaints in the professional press about "Old Bailey hacks" and sham solicitors. There is no question that the manners of Old Bailey barristers offended the sensibilities of a profession increasingly under public attack and sensitive to the issue of its gentlemanly reputation. We might remember, however, that Peter Alley and his fellow "hacks" contributed to the evolution of those modern rules of evidence Bentley wishes to preserve; more importantly, they saved innocent men from the gallows, the convict ship, and the prison. Sham solicitors and the more disreputable of their legitimate brethren were indeed a problem, but the emergence of the highly respectable dedicated attorney, James Harmer, in the opening decades of the nineteenth century should not go unremarked. Moreover, anecdotal evidence to the effect that briefs often consisted of little but copies of the depositions cannot be trusted as conveying the whole truth. The dearth of solicitors' papers makes it difficult to determine what routinely went into a brief. The evidence of those that survive, however, and of counsels' line of attack when in court, suggests that the solicitor's investigation of the facts of a case and his instructions for the way in which the prosecution or defense should proceed could be vital to the outcome of a trial. There is equally evidence to suggest that counsel in some instances had neither the time nor the inclination to study the briefs provided: James Scarlett admitted to having adopted early in his legal career the habit of interrogating attorneys rather than reading their briefs and claimed he had not read "one brief in ten" of the most important cases he was engaged in in quarter sessions (Peter Campbell Scarlett, A Memoir of the Right Honourable James, First Lord Abinger [London, 1877], 62).	4
In attempting a survey of the complicated workings of the nineteenth-century criminal trial, David Bentley set himself an ambitious task and he has not entirely succeeded. English Criminal Justice would have benefited from a more critical attitude toward his primary sources (opinions expressed in the legal periodical press cannot always be relied upon as "the truth"), recourse to newspapers other than The Times, and a much more extensive use of secondary sources. References to the secondary literature are thin on the ground, and, while a list of cases referred to is provided, a bibliography is not. It is also clear that Bentley is more interested in rules of evidence than in advocacy; nine of his twenty-six chapters are devoted to evidentiary issues whereas the rise of adversarialism and the ethics of advocacy in the criminal courts, key issues in the nineteenth century, are entirely ignored. He is to be praised, however, for providing in chapter 12 a valuable reminder of the "cruel irrelevance" of a Prisoners' Counsel Act that made no provision for legal aid. If the result of Bentley's efforts is not a perfect survey, he has nonetheless provided a useful one and added considerably to our knowledge of the criminal trial in nineteenth-century England.	5
Allyson N. May University of Toronto

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