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.
this sounds like a very interesting book!
It was the runner-up in the historical category for the Daphne du Maurier Award for Excellence in Mystery, as well as a finalist for the Frank Yerby Award for Fiction.
Sorry not as clear as your usual columns.
The story about Garrow is a story about the role of defense lawyers in English courts. Before lawyers, the judges questioned all witnesses. They were supposed to be impartial.
I am confused about privilege of peerage and circuit courts. Peers and peeresses could be arrested for any crime just as any one else might be and had the benefit of claiming benefit of clergy for all the remaining clergible crimes– just as any one might be . The only cases I know where a peer claimed privilege of peerage on arrest was for a civil wrong such as debts. They couldn’t be imprisoned for debts and a man whose father died while he was in prison for debt had to be immediately release. Peers didn’t get away with Civil wrongs and could be tried and sued like every one else. They couldn’t be imprisoned before a trial. Peers have had their goods taken and sold to pay debts after proper conviction and proper papers were filed. Such sales were bothersome because of the difficulties of having to exclude anything that could be considered part of the estate.
The only circuits I know of were those of the assize circuits held twice a year where the London judges went out to the rest of the country to try serious cases. Barristers from London and from the assize towns took part in the cases. There were four or so circuits and certain judges and barristers went out to the same courts year after year.
There was a literal bar in courts which separated the lawyers and judges front the rest of the people. A barrister could go behind this bar.
What would it take for a kidnapper to be rushed to trial rather than held over for the assizes court? In this case, the kidnapping took place only 20ish miles from London, in the late fall, and the kidnap victim was married to a untitled member of the ton. I would like to make the scene in my current WIP as accurate as possible.
Have you considered researching the kidnapping cases on Old Bailey online? https://www.oldbaileyonline.org/
That is what I did when I wrote The Prosecution of Mr. Darcy’s Cousin. In that manner I could manage the language of the court proceedings, etc. I used actual court proceedings as my model for writing the courtroom scenes. You could put “kidnapping” in the search box and find lots of trials and their dispositions.
To the best of my knowledge, the person would be brought before the magistrate. You need to determine where the trial might take place. Which jurisdiction? The jurisdiction changes when the jury would meet, etc. The magistrate proceedings would send the case to trial. A jury would hear the evidence for several trials before they ruled. My research showed that a murder case would not take more than half an hour. Then the judge would rule on all cases at the same time. There was no defense attorney. The accused would need to be his own counsel, etc.
Victorian Crime and Punishment has an overview and some case studies:
Trial Procedures (listed on Old Bailey) https://www.oldbaileyonline.org/static/Trial-procedures.jsp ~ This section includes
Drawing up the Charges
The Role of the Grand Jury
The Defendant’s Plea
The Role of Lawyers
The Role of Judges
The Verdict and Sentence
Appeal and Review
These are articles I did previously:
Thank you so much!
I always appreciate your insights, Nancy. You are more well read in this area than am I.
I learned about privilege of peerage later and you are correct in your definition. It is one I hadn’t known about as I had always confused it with the benefit of clergy.
It was one get out of jail free card– so to speak. The Wicked Lord Byron who killed a man in a duel was convicted of manslaughter and used the privilege to escape punishment.
I was the one confused when I wrote my previous comment. Peers really weren’t hauled before the JP for minor offenses . Not because the law protected them so much as because they had so much influence, patronage and clout.
I do enjoy your essays and usually learn much.