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Book Review



Allyson N. May, The Bar and the Old Bailey, 1750–1850, Chapel Hill: University of North Carolina Press. Pp. 242. $55.00 (ISBN 0-8078-2608-8).

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.

 

Wendie Ellen Schneider
University of Iowa


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