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Allyson May's The Bar and the Old Bailey explores a previously
neglected corner of the history of the legal profession and, in
the process, uncovers the unpredictable relationship between legal
reform, professional exigencies, and the history of the criminal
trial. By focusing on an unlikely group of protagonists—the
barristers who practiced in London's main criminal court, known
as the Old Bailey—May produces what amounts to three independent,
yet overlapping, historical narratives. The first traces the evolution
of the much-criticized group of British barristers that practiced
at the Old Bailey. The second details changes in criminal trial
procedure during an era of law reform. The third skillfully charts
the professional and public debate on trial advocacy. Each of the
narratives alone would be well worth the price of admission; having
all three is an unprecedented delight. May's work offers significant
contributions to the histories of the criminal trial, the legal
profession, and the metropolitan court system. May's
painstaking reconstruction of the careers of Old Bailey barristers
both famous and obscure presents a sterling example of the difficult,
yet rewarding, work of collective biography. The Old Bailey barristers
are known to history largely as a derogatory stereotype—men
innocent both of manners and of legal knowledge. The few who emerged
from their collective obscurity to renown, such as William Garrow,
are, as May demonstrates, atypical. Each generation had a handful
of successes who dominated Old Bailey practice, and a coterie
of much more marginal figures, such as George Schoen, who practiced
at the Old Bailey for over a decade and then, having represented
clients in only forty-five recorded cases, retreated to Northamptonshire
where he served as Rector of Crick until his death. Old Bailey
barristers may have been ridiculed, but their history encapsulates
a critical moment in the history of trial advocacy.
Examining Old Bailey barristers
as a group, May uncovers several intriguing aspects of their practice.
Work at the Old Bailey was often associated with work in other
City courts. The barristers' professional identity, therefore,
was shaped not by a distinction between criminal and civil practice,
but rather by professional venue. Alongside this, May reveals
that while prominent Old Bailey barristers may be known to history
as criminal defense lawyers, in fact their political sympathies
were as likely as not to be conservative. The suggestive emergence
of a criminal defense bar in the 1780s has prompted a number of
historians to wonder whether there was a link between defense
counsel, political liberalism, and the coming of the adversarial
trial. May, however, finds almost no radicals among the Old Bailey
bar, and a rough balance of Tories and Whigs. Moreover, when it
came to reform of the criminal justice system, Old Bailey barristers
opposed it. John Silvester, Newman Knowlys, and Garrow all argued
against further reduction in the number of capital offenses. Perhaps
unsurprisingly, men who made their careers by appealing to the
sympathies of jurors were disinclined to support reforms that
sought to replace a highly discretionary system of criminal justice
with one that promised more lenient, but also more certain, punishment.
In May's account, change in adversarial
trial practice was largely a by-product of reforming the system
of punishment. The expansion of the role of defense counsel embodied
in the 1836 Prisoners' Counsel Act, which allowed counsel to address
the jury directly rather than restricting their role to cross-examination
and arguing points of law, was not a result of popular outcry
on behalf of defendants' rights, nor did it enjoy support from
the legal profession. Instead, it was a measure designed to assist
in determining the "truth" of the alleged crime, now the jury's
main concern as capital punishment faded. Without counsel, reformers
feared, defendants would be incapable of formulating a coherent
defense and the prosecution would be able to ride roughshod over
the search for truth.
May skillfully explores both the
lay and the professional debates regarding the proper boundaries
of advocacy in the 1830s and 1840s. Justifications for defense
advocacy followed on the heels of the Act and were forged in the
crucible of controversial cases. May sees "justice" coming to
supercede "truth" as the legal profession's lodestar, with justice
consisting of "the presumption of innocence, the right to counsel,
an onus on the prosecution rather than the defense, a high standard
of evidentiary proof, and a belief in adversarial procedure."
(233) May is certainly right to argue that the early Victorians
quickly came to temper their desire for truth with an appreciation
of other virtues. It is, however, difficult to maintain a clear
distinction between the two rationales. The late eighteenth-century
anxieties about perjury in reward cases, for instance, reflect
an inseparably conjoined fear of both deceit and injustice.
May's research also provides invaluable
groundwork for future research into the development of legal ethics
and professional discipline. Complaints about the conduct of the
Old Bailey bar directly evoked the fear of an "uncontrolled" legal
profession. May notes that the Old Bailey lacked the even the
rudimentary discipline provided by Circuit "messes." By reconstructing
the lives and practices of the first criminal defense lawyers,
May opens the way for new work on the slow and contested emergence
of legal ethics.
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