One of the surprising things upon which many readers of the courtroom scene in The Prosecution of Mr. Darcy’s Cousin commented was the lack of a “defense attorney” for the accused. A prosecutor served the British courts, but the accused was often only permitted a barrister’s advice for points of law.
Prior to the last decades of the 18th C, lawyers were rarely present in ordinary criminal trials. Most lawyers who appeared at Old Bailey in the 18th C were not top-notch legal minds. They were considered ignorant of the law and of general incivility. Until the 1730s, the presence of lawyers in the courtroom were the exception to the rule. Their use was encouraged by the growing government practice, from the late 1690s, of funding prosecutions for the most serious offences, such as cases of seditious words and libel, treason, coining, and violent offences such as murder, rape, and robbery. Once their presence as government prosecutors had been accepted, their services were gradually exploited by prosecutors in other cases.
The growth of commerce increased the need for more lawyers in the courtroom. Prosecuting counsel were employed by merchants and shopkeepers. Moreover, a 1752 statue allowed courts to reimburse some prosecutors for expenses incurred if they earned a conviction. By 1778, another statute extended payment to all prosecutors of successful cases.
Defense counsel was excluded in felony cases (except for points of law) until the 1730s, although a defense was expected in treason cases. It was thought if a man were honest, he required no defense. But with the increase of prosecutors in the courtroom, defense lawyers were employed to balance the scales of justice. Even so, a defense lawyer could not summarize the points of his case until the mid 1830s. In the early 1800s less than a third of the cases had a defense counsel.
“Over the course of the eighteenth and early nineteenth centuries the balance of power in the courtroom, which had been heavily weighted against defendants, shifted marginally back in their direction. With the exception of cases of murder, however, this shift occurred only for those who could afford the cost of a lawyer. In the 1820s, judges began to assign lawyers to speak on behalf of prisoners accused of serious offences. It was also possible for poor prisoners to secure legal representation by applying to defend in forma pauperis or to find funding for legal assistance through a benefactor. The sheriffs of London provided a fund for such assistance from the early nineteenth century. However, relatively few defendants benefitted from these provisions. It was not until the Poor Prisoner’s Defence Act of 1903 that an effective form of legal aid was introduced.” (Old Bailey)
English Law or Common Law is heavily based on legal precedence. This created a stratified judicial system were judges were very biased making it necessary for lawyers in the Regency to gain acceptance at court because of their rank in society. We must recall that in the Regency, peers of the realm (the aristocrats) could claim privilege of avoiding arrest in civil matters. We have often read story lines where the aristocrat leaves a line of debts behind him and receives no recriminations from the law. It was 1870 before the aristocracy could be sent to prison for incurred debts. Other than in case of murder or treason, peers and peeresses could plead “privilege of peerage” if convicted of a crime (and was their first offense). The law was abolished in 1847.
“Circuit Courts” were based on the traveling judges of the period. This practice created a pool of lawyers who were “called to the bar” for the judges saw many of the same lawyers within their courtrooms. These men were known as “barristers.” According to Wikipedia, “A barrister, who can be considered as a jurist, is a lawyer who represents a litigant as advocate before a court of appropriate jurisdiction. A barrister speaks in court and presents the case before a judge or jury. In some jurisdictions, a barrister receives additional training in evidence law, ethics, and court practice and procedure. In contrast, a solicitor generally meets with clients, does preparatory and administrative work and provides legal advice. In this role, he or she may draft and review legal documents, interact with the client as necessary, prepare evidence, and generally manage the day-to-day administration of a lawsuit. A solicitor can provide a crucial support role to a barrister when in court, such as managing large volumes of documents in the case or even negotiating a settlement outside the courtroom while the trial continues inside.
“There are other essential differences. A barrister will usually have rights of audience in the higher courts, whereas other legal professionals will often have more limited access, or will need to acquire additional qualifications to have such access. In countries where there is a split between the roles of barrister and solicitor; whereas, the barrister in civil law jurisdictions is responsible for appearing in trials or pleading cases before the courts.
“Barristers usually have particular knowledge of case law, precedent, and the skills to ‘build’ a case. When a solicitor in general practice is confronted with an unusual point of law, they may seek the ‘opinion of counsel’ on the issue. In contrast, solicitors and attorneys work directly with the clients and are responsible for engaging a barrister with the appropriate expertise for the case. Barristers generally have little or no direct contact with their ‘lay clients’, particularly without the presence or involvement of the solicitor. All correspondence, inquiries, invoices, and so on, will be addressed to the solicitor, who is primarily responsible for the barrister’s fees.” (Middleton Chambers)
A young man who had money, but was solidly from the merchant/business class could decide to “change careers” and become a barrister. To do so, he would he simply pay his money, go to one of the inns of court to study, and just do it, or would there be more obstacles in his way? In truth, though the inns of court had once been regular law schools, they really were not so prominent by the mid 1800s. The men who wanted to be lawyers worked in a lawyer’s office, read law, and ate their dinners with their mentor’s family. In my series on the signers of the Declaration of Independence, many of the founding fathers studied law with other lawyers. Attending a university generally cut the time a young man had to study the law, but few universities provided courses addressing common law. Reading cases and listening to barristers was the only way to learn the points of law.
The universities did, however, teach civil law, and those who graduated from university and held experience in these courses could practice in the church courts, the admiralty, and probate courts. Some young professionals cross trained ,and others specialized in either civil or common law.