1. Rackow, Felix, “The Right to Counsel: English and American Precedents,” William and Mary Quarterly ser. 3, 11 (1954): 3–27CrossRefGoogle Scholar. The right of defendants in treason trials to full defense by counsel was granted by 7 & 8 Wm III, c. 3 (see below, references at n. 5).

2. On the form of trial in the early eighteenth century, see Langbein, John H., “The Criminal Trial before the Lawyers,” University of Chicago Law Review 45 (1978): 263–316CrossRefGoogle Scholar; idem, “Shaping the Eighteenth-Century Criminal Trial: A View from the Ryder Sources,” University of Chicago Law Review 50 (1983): 1-136; Beattie, J. M., Crime and the Courts in England, 1660-1800 (Princeton: Princeton University Press, 1986Google Scholar), ch. 7; Cockburn, J. S., Calendar of Assize Records, Home Circuit Indictments, Elizabeth I and James I: Introduction (London: H.M.S.O., 1985Google Scholar); Green, Thomas A., Verdict According to Conscience: Perspectives on the English Criminal Trial Jury, 1200-1800 (Chicago: University of Chicago Press, 1985CrossRefGoogle Scholar); Landsman, Stephan, “The Rise of the Contentious Spirit: Adversary Procedure in Eighteenth-Century England,” Cornell Law Review, 75 (3) (1990): 498–609Google Scholar.

3. Langbein, John H., Prosecuting Crime in the Renaissance: England, Germany, France (Cambridge, Mass.: Harvard University Press, 1974CrossRefGoogle Scholar), part I.

4. Hawkins, William, A Treatise of the Pleas of the Crown, 2 vols. (1716-21), 2:400Google Scholar; quoted in Langbein, “Shaping the Eighteenth-Century Criminal Trial,” 123.

5. Reznick, Samuel, “The Statute of 1696: A Pioneer Measure in the Reform of Judicial Procedure in England,” Journal of Modern History 2 (1) (1930): 5–26CrossRefGoogle Scholar; Phifer, James R., “Law, Politics, and Violence: The Treason Trials Act of 1696,” Albion 12 (3) (1980): 235–56CrossRefGoogle Scholar. For a contemporary argument in favor of the passage of the legislation—pointing out “the imperfect Defence which the Laws in being afford to Men's Lives”—see Reasons for a New Bill of Rights: Humbly submitted to the Consideraiton of the Ensuing Session of Parliament (London, 1692), 5.

6. Landsman, “The Rise of the Contentious Spirit,” 572-77.

7. Brewer, John, The Sinews of Power. War, Money and the English State, 1688-1783 (New York: Alfred Knopf, 1989Google Scholar).

8. Beattie, Crime and the Courts, ch. 9; Ekirch, Roger, Bound for America: The Transportation of British Convicts to the Colonies, 1718-1775 (Oxford: Clarendon Press, 1987Google Scholar).

9. Public Record Office; State Papers Domestic: SP44/118, 207; SP44/147 (Nov. 30, 1715).

10. There is a great deal of evidence of the active engagement of the secretaries and undersecretaries of state in the prosecution of a range of offenders in the reign of George I in the so-called “Criminal Entry Books” among the State Papers Domestic, a series of copy-books especially devoted to criminal matters and begun about 1714 (SP44/79A-81).

11. Beattie, Crime and the Courts, 352-56; SP44/80, 431; SP44/81, 5-6, 24, 69, 189.

12. Langbein, “Criminal Trial before the Lawyers,” 311.

13. Ibid., 311-12.

14. For barristers' fees and incomes in the late seventeenth and early eighteenth centuries, see Lemmings, David, Gentlemen and Barristers: The Inns of Court and the English Bar 1680-1730 (Oxford, 1990), 151–57CrossRefGoogle Scholar. The income barristers might expect to derive from the criminal bar in the late eighteenth century remains unclear. A fee of a guinea for an ordinary, straightforward felony seems to have been common, more for a more complex case. A solictor in the early nineteenth century—in the course of complaining that barristers often took a fee and then failed to appear in court—said that he had written as many as twenty briefs for the first day of the sessions at the Old Bailey “and sent fees of one, two, or three guineas with each.…” [Wontner, Thomas], Old Bailey Experience. Criminal Jurisprudence and the Actual Working of our Penal Code of Laws (London, 1833), 68Google Scholar. The fee was offered with the brief and if accepted, was the retainer. A solicitor recalled having met the barrister William Garrow going into the Old Bailey in the early 1780s “and having a brief to deliver to you which my clerk was finishing, I … requested you not to take any brief on the other side, if offered you, as I intended you the advocate for my client, whose brief would be ready in a few minutes. ‘Indeed, I shall, unless you give me a retainer,’” was Garrow's reply. Matthew Concanen, A Letter to William Garrow, Esq. on the subject of his Illiberal Behaviour (1796), 16 (I owe my knowledge of that pamphlet to John Langbein). The barrister's fee was only one element, and perhaps the most modest element, in the costs of being defended by a lawyer or of engaging a lawyer to prosecute a case. What the solictor's fees and charges would be in drawing up the brief no doubt varied a great deal, depending on how much interviewing, legwork, and paperwork was involved. We still have a great deal to learn about the process by which both victims and defendants engaged lawyers and what the costs of their engagement were. For some discussion of the role of solicitors and of the relationship between solicitors and barristers in the early eighteenth century, see Langbein, “Shaping the Eighteenth-Century Criminal Trial,” 127 n. 511, discussing an anonymous pamphlet, Directions for Prosecuting Thieves without the help of those false guides, the Newgate Sollicitors (London, 1728).

15. The Old Bailey Sessions Papers were pamphlet accounts of trials at the Old Bailey, published from the 1670s well into the nineteenth century. They are the source for my estimates of the number of counsel appearing in Old Bailey trials in the eighteenth century. For their strengths and weaknesses as sources for the history of trial, see Langbein, “Criminal Trial before the Lawyers,” 267-72.

16. Langbein, “Shaping the Eighteenth-Century Criminal Trial,” 126.

17. The conservative nature of this calculation helps to explain why my figures are lower than those reported by Stephan Landsman in “The Rise of the Contentious Spirit,” Table II, p. 607. It might also be noted that the percentages of prosecutors and defendants with counsel that I report in Table 1 are also lower than Landsman's comparable calculations because he excluded from his database cases in which the Sessions Papers report does not disclose anything about the testimony offered but—as was all too frequently the case in the first half of the century—gives merely the names of the principals, the offense charged, and the jury verdict. See Landsman “The Rise of the Contentious Spirit,” 510 n. 60, and Table I, p. 606. In making my calculations, I included all the cases reported in the Sessions Papers. The effect of these two differences in method can be seen in our estimates for the year 1782, the only year we have reported on in common. My suggestions are that some 7.2 percent of prosecutors and 12.8 percent of defendants employed counsel at the Old Bailey that year. Landsman's figures for that same year are 5.69 percent and 26.08 percent respectively.

18. In 1775 and 1781, the average case occupied just over eight-tenths of a page; between 1783 and 1790, during Hodgson's proprietorship, the annual average ran steadily around 1.33 pages per case. The print size and page format remained roughly stable over this period.

19. John Langbein has pointed out to me that this is suggested by Thomas Leach's 1787 edition of Hawkins's Pleas of the Crown, for his marginal notes cite a number of cases from the Old Bailey between 1784 and 1786. It is also clear in Leach's, Crown Cases (4th ed., 2 vols. London, 1815Google Scholar) which reports cases from the assizes and the Old Bailey, though the latter in disproportionate numbers. Cases from 1778-82 occupy sixty-six pages; those from the subsequent five years, 1783-87, take up 230: thirteen pages per year in the first period; forty-six in the second.

20. It might be noted briefly that no continuing upward trend was established in the last two decades of the eighteenth century and into the nineteenth. Indeed, there was if anything a falling away after 1800 in the number of lawyers acting for the prosecution, while on the defense side the engagement of counsel seems to have stabilized for some considerable time at the level reached in the last two decades of the eighteenth century. This is suggested by a sample of two years which have been chosen at random, and which are not thought to reveal anything more than the apparent stability in the levels of counsel engaged at the Old Bailey in the first half of the nineteenth century: in 1830, just over two thousand felony cases were dealt with at the Old Bailey, in 8 percent of which the prosecutor engaged counsel and in 26 percent the defendant; in 1840, in the 2688 cases tried, the corresponding figures are 4.3 percent and 25.3 percent.

21. Beattie, Crime and the Courts, 42-48.

22. For reform ideas and reform movements in the period of the American war, see Dickinson, H. T., Liberty and Property: Political Ideology in Eighteenth-Century Britain (London: Methuen, 1977), 215–31Google Scholar; Christie, I. R., Wilkes, Wyvill and Reform: The Parliamentary Reform Movement in British Politics, 1760-1785 (London: Macmillan, 1962Google Scholar); Black, E. C., The Association: British Extraparliamentary Political Organization, 1769-1793 (London, 1963Google Scholar); Robbins, Caroline, The Eighteenth-Century Commonwealthman (Cambridge, Mass.: Harvard University Press, 1959CrossRefGoogle Scholar); Lincoln, Anthony, Some Political and Social Ideas of English Dissent, 1763-1800 (Cambridge: Cambridge University Press, 1938Google Scholar).

23. Another possible stimulus to the heightened engagement of lawyers in the criminal courts in the 1780s was the state of crime at the end of the American war and in the years immediately following. All postwar periods in the eighteenth century saw sharp increases in the level of prosecutions for robbery and burglary and other property crime, but the early 1780s seems to have been a period of particular anxiety in London. A large number of violent offenses were reported in the press, and prosecutions of robbers and burglars rose to a massive peak in the middle years of the decade in the metropolis and the surrounding counties. One notable aspect of those prosecutions was the prominence among the prosecutors and witnesses at the Old Bailey of the “professional” thief-taking constables attached to the Rotation Offices that had been increasingly important in London since the 1760s. I do not know whether it was the engagement of so many men with financial interest in the outcome of the “blood money” cases—cases in which rewards were paid upon conviction—that encouraged larger numbers of victims to seek defense counsel, and whether it was the aggressiveness of these prosecutors that in turn encouraged counsel to take an aggressive stance in defense of their clients. Such connections seem plausible, and I intend to pursue them in future work. For “thief-takers” as witnesses and their conflicts with defense counsel, see below, text at note 60.

24. Langbein, “Shaping the Eighteenth-Century Criminal Trial,” 129-30; Beattie, Crime and the Courts, 360.

25. See the following section, “The Importance of Defense Counsel.”

26. For discretion in the administration of the law, see Hay, Douglas, “Property, Authority and the Criminal Law,” in Albion's Fatal Tree: Crime and Society in Eighteenth-Century England, ed. Hay, Douglas, Linebaugh, Peter, and Thompson, E. P. (London: Allen Lane, 1975): 17–63Google Scholar; King, Peter, “Decision-Makers and Decision-Making in the English Criminal Law, 1750-1800,” Historical Journal 27 (1) (1984): 25–58CrossRefGoogle Scholar; Beattie, Crime and the Courts, ch. 8.

27. Beattie, Crime and the Courts, 446-47.

28. For the development of the law of evidence in the eighteenth century, see Langbein, “Criminal Trial before the Lawyers,” 300-6; Beattie, Crime and the Courts, 362-76; Landsman, Stephan, “From Gilbert to Bentham: The Reconceptualization of Evidence Theory,” Wayne Law Review 36 (3) (Spring 1990Google Scholar).

29. Landsman, “From Gilbert to Bentham”; Shapiro, Barbara, “‘To a Moral Certainty’: Theories of Knowledge and Anglo-American Juries 1600-1850,” Hastings Law Journal 38(1) (1986): 153–93Google Scholar.

30. Lawyers were clearly aware of the audience to which such speeches were normally being addressed. After defense counsel made a speech to the bench in a case in 1784, the lawyer acting for the prosecution (William Garrow) said to the judge: “My Lord, I should leave this case with the utmost pleasure to the Court, but that all arguments of this sort are addressed to the Jury, and are intended to have their operation there, it therefore becomes my duty to trouble your Lordship with a few words by way of reply.” Old Bailey Sessions Papers (Jan. 1784, no. 226), 293.

31. Beattie, Crime and the Courts, 346-47.

32. For the development of cross-examination in the middle decades of the eighteenth century, see Landsman, “The Rise of the Contentious Spirit,” 534-48.

33. For rewards, thief-takers, and police (or rotation) offices, see Sir Radzinowicz, Leon, A History of English Criminal Law and its Administration from 1750 (New York: Macmillan, 1957), 2Google Scholar: pt. I, II; ibid., 3: pt. I, II; Philips, David, “‘A New Engine of Power and Authority’: The Institutionalization of Law-Enforcement in England 1780-1830,” in Crime and the Law: The Social History of Crime in Western Europe since 1500, ed. Gatrell, V. A. C., Lenman, Bruce, and Parker, Geoffrey (London: Europa, 1980), 155–89Google Scholar; Howson, Gerald, Thief-Taker General: The Rise and Fall of Jonathan Wild (London: Hutchinson, 1970Google Scholar); Paley, Ruth, “Thief-takers in London in the Age of the McDaniel Gang, c. 1745-1754,” in Policing and Prosecution in Britain, 1750-1850, ed. Hay, Douglas and Snyder, Francis (Oxford: Oxford University Press, 1989Google Scholar).

34. Shapiro, Barbara J., Probability and Certainty in Seventeenth-Century England: A Study of the Relationships between Natural Science, Religion, History, Law, and Literature (Princeton: Princeton University Press, 1983Google Scholar); idem, “‘To a Moral Certainty.’”

35. Shapiro, Probability and Certainty, 183.

36. This can be seen most clearly in the history of preliminary hearing, in which an allegation that a felony had been committed made to a magistrate on oath was to be treated by justices of the peace as beyond their judgment. In the early eighteenth century, magistrates might find it possible to dismiss the charges against someone accused under suspicion (though that was to ignore the rules established by the Marian legislation that had enjoined magistrates to commit every accused person to trial whether the case seemed plausible or not.) But they would not have thrown out a case when the victim swore on oath his certainty that the accused had committed the offense even if they thought the evidence weak. By the end of the century magistrates had taken on the burden of making judicial decisions about the strength of all charges being made. By then the preliminary hearing was well on its way to being judicialized, and was already similar to the system that was to be confirmed by the Jervis Acts of 1848. But the power of the oath did not by any means disappear quickly or without trace. See Beattie, Crime and the Courts, 268-81.

37. Shapiro, Probability and Certainty, 188.

38. Shapiro, “‘To a Moral Certainty,’” 162-75.

39. SirHawkins, John, The Life of Samuel Johnson (London, 1787), 521Google Scholar.

40. Colquhoun, Patrick, A Treatise on the Police of the Metropolis, 2d ed. (London, 1796), 24, 245–46Google Scholar.

41. The main elements in Garrow's career are set out in the Dictionary of National Biography, and see Foss, , Judges of England, 9, 86–90Google Scholar; Gentleman's Magazine, n.s., 14 (1840): 657–58Google Scholar (obituary); and Thorne, R. G., ed., The History of Parliament: The House of Commons, 1790-1820 (London, 1986), 4:1, 5–7Google Scholar.

42. His own recollection—slightly suspect since he was making a point that bore on the question—was that he had attended the Old Bailey during his articling years as well as while he was at Lincoln's Inn. During his cross-examination of a thief-taker in a trial in 1785, Garrow asked him how long he had been in the business of thieftaking: “Longer than you have been a Counsellor” the witness shot back at this twentyfour-year-old who was giving him such a hard ride in the witness box. “I know that,” Garrow replied, “because during the eight years I attended as a student, I remember you.” Old Bailey Sessions Papers (Jan. 1785, no. 224), 272. How common such attendance at the Old Bailey was among those training for the bar I am not yet sure.

43. “Mr. Baron Garrow,” The Law Review 1 (1844): 318Google Scholar.

44. For example, Garrow annotated several trials in his copy of the Old Bailey Sessions Papers covering the first year he practiced there. The volume for 1783-84 in the University of Chicago Law Library set of Sessions Papers contains marginal annotations in Garrow's hand, mainly of cases in September and October 1784. These were obviously for his own future use. Some provided further explanation of some of his own interventions in the trials reported; others provided corrections where the reporter had misunderstood the points he had made; most mark cases that he wanted to recall, either because of a point of law or the nature of the evidence that had been offered, or because of the nature of the offence being tried. I am very grateful to John Langbein for this information.

45. There had been many such societies, meeting in taverns and in public rooms in London, since the 1740s. They became more numerous in the 1760s and 1770s. By the early 1780s they were charging admission, and advertising in the press the topics of debate and the featured speakers of the next meeting. “Spouting clubs,” their critics called them, but they were clearly popular, both because they provided a forum for the discussion of the topics of the day and the entertaining spectacle of prominent and ambitious debaters in conflict. “Many of the leading statesmen and lawyers,” Foss concluded from his investigation into the lives of judges, “had made their first essays” in these clubs. (Judges of England 9:87). Garrow had some reputation as a speaker in these debating societies—at the famous Robin Hood Society, for example, the earliest of the clubs, founded in the 1740s. Polson, A., Law and Lawyers; or, Sketches and Illustrations of Legal History and Biography, 2 vols. (London, 1840), 1:216Google Scholar. By 1785 he was referred to in the press as “Counsellor Garrow, the famous orator of Coachmaker's Hall”—where one of the largest of the debating clubs met. (General Advertiser, February 28, 1785). It is possible that Garrow saw the formal debating style at these societies as a good training ground for the examination and cross-examination of witnesses. But it is just as likely that his interests were stirred in the first place by the issues in debate and by his political commitments and connections of the Whig opposition in the early 1780s. For the debating societies in a later period, see McCalman, Iain, “Ultra-Radicalism and Convivial Debating-Clubs in London, 1795-1838,” English Historical Review 102 (April, 1987): 309–33CrossRefGoogle Scholar. (I am grateful to Donna Andrew for references and help with this subject.)

46. Garrow established his reputation by his successful prosecution of a man accused of stealing a bill of exchange in the face of an apparently persuasive argument by defense counsel that the taking did not amount to felony. Garrow cited a long list of cases to support his contention that the offence was indeed larceny—a line of argument taken up by Mr. Justice Heath in his summation to the jury. Heath remarked on the cases “so ably cited by the learned council for the prosecutor.” Old Bailey Sessions Papers (Jan. 1784, no. 226), 294; Foss, , Judges of England 9:87–88Google Scholar.

47. SirSainty, John, A List of the English Law Officers, King's Counsel and Holders of Patents of Precedence (London: The Seldon Society, 1987), 97Google Scholar. King's counsel had been first appointed in the seventeenth century. They were, Blackstone explained, “sworn servants of the crown, with a standing salary” and were thus not allowed “to be employed in any cause against the crown without special licence.” Edward Christian, the editor of the twelfth edition of the Commentaries (1794) added the note that “Hence none of the king's counsel can publicly plead in court for a prisoner, or a defendant in a criminal prosecution, without a licence, which is never refused; but an expence of about 9£ must be incurred in obtaining it.” SirBlackstone, William, Commentaries on the Laws of England, 12th ed. (London: 1794), 3:27Google Scholar.

48. What Garrow's income was as an exceptionally successful lawyer I have not yet been able to discover. In 1808, he was said to be commanding fees as high as three hundred guineas in nisi prius actions at the assizes and was “a by-word for prosperity in his profession.” Thorne, , The History of Parliament 4:6Google Scholar.

49. Garrow was brought into Parliament in 1805 as a friend of Pitt to defend Henry Dundas (Lord Melville) during his impeachment proceedings. Thorne, , History of Parliament 4:5Google Scholar. He was at the same time appointed solicitor general to the Prince of Wales, but he made it clear that he would not abandon his earlier commitments to Pitt and Melville if they were put to the test. Aspinall, A., ed., Correspondence of the Prince of Wales, 6 vols. (London: Press, 1968), 5:335Google Scholar n. 2. Garrow went on to be the Prince's attorney general (1806-12) and, at the formation of the Regency, successively solicitor general and attorney general in Lord Liverpool's administration (1812-17). He was a strong opponent of reform, legal and political. See Thorne, , History of Parliament 4:7Google Scholar. Like many attorneys general, he was subsequently appointed to the bench. He was made a baron of the Exchequer in 1817 and served in that court until his retirement in 1832. Garrow died in 1840.

50. Werkmeister, Lucyle, A Newspaper History of England, 1792-1793 (Lincoln: University of Nebraska Press, 1967), 207Google Scholar.

51. Foss, , Judges of England, 9, 88Google Scholar.

52. Sir Namier, Lewis and Brooke, John, eds, The House of Commons 1754-1790 (LondonHMSO, 1964), 1:336–38Google Scholar; Mitchell, L. G., Charles James Fox and the Disintegration of the Whig Party, 1782-94 (Oxford: Oxford University Press, 1971), 92–101Google Scholar; Cannon, John, The Fox-North Coalition, 1782-4 (Cambridge: Cambridge University Press, 1969), 206–27Google Scholar.

53. This is an impression from reading the Sessions Papers. One must always face the possibility that the reporters named Garrow more often than other lawyers and gave him more space than others in the Sessions Papers because he was an engaged and often entertaining defense counsel, and entertainment was what they were largely providing.

54. Garrow appeared in at least a thousand cases during the years 1783-93—that is he was named as acting for the prosecution or defense in about a thousand cases in the Sessions Papers. Despite his move toward the prosecution side towards the end of that period, he had acted for the defense in about three-quarters of those cases.

55. Garrow remained until his retirement in the relatively lowly position of baron of the court of Exchequer—lowly certainly for someone who had served as attorney general—because he turned out by all accounts to be an undistinguished judge. This was largely, it was said, because his knowledge of the finer points of law, especially the law of property, was rather weak. The Law Review 1 (1844): 319, 327Google Scholar.

56. Ibid.: 318.

57. Aspinall, , The Correspondence of George, Prince of Wales 7:268Google Scholar.

58. House of Lords Sessional Papers (130) 1835, xlvi, 317Google Scholar (App. IV): 52.

59. Old Bailey Sessions Papers (May 1784, no. 637), 818-24.

60. For malicious prosecutions, see Douglas Hay, “Prosecution and Power: Malicious Prosecution in the English Courts, 1750-1850,” in Hay, Douglas and Snyder, Francis, Policing and Prosecution in Britain 1750-1850 (Oxford, 1989), 343–95Google Scholar.

61. One might note here parenthetically that, as was common after wars in the eighteenth century, there was heavy competition for work in London in this period: economic circumstances apparently took this man into thief-taking as they took others into robbery.

62. Old Bailey Sessions Papers (Jan. 1784, no. 224), 269-74.

63. Ibid. (Dec. 1785, no. 117), 132-35.

64. Ibid. (July 1784, no. 772), 953-55.

65. Ibid. (Jan. 1786, no. 15), 247.

66. The fuller account of the exchange between Garrow and Mr. Justice Heath is contained in a manuscript transcript bound in with the set of Sessions Papers at the Harvard University Law Library under the date of the trial, January 1786, at pp. 247-48, and reproduced in the Harvester Press microfilm edition. It seems likely that this was the verbatim account of the exchange between Garrow and the bench taken by Hodgson, the shorthand writer whose edited reports are found in the printed Sessions Papers. The manuscript begins: “No. 157 Page 247 Trial of William Bartlett [i.e., in the Sessions Papers] Where it saith Mr. Garrow objected to a Witnesse being examined but his Objection was over ruled by the Court this is the whole of the Altercation verbatim between Mr. Justice Heath and Mr. Garrow the prisoner's Councel which was omitted in the Sessions paper.” John Langbein, who has analyzed the Sessions Papers as sources for the history of the criminal trial more closely than anyone, has suggested to me that the shorthand reporters would have been in a position to supply lawyers with verbatim accounts of trials in which they had a particular interest and which had been only partially reported in the printed Sessions Papers.

67. That is, allowed or appointed by the court to act for the defendant.

68. Ibid. (Jan. 1786, no. 151), 247-48 (and manuscript insertion included in the Harvester Press microfilm edition).

69. See, for example, Matthew Concanen, A Letter to William Garrow, Esq. on the Subject of his Illiberal Behaviour to the Author on the Trial of a Cause (Ford against Pedder, and others) At the Lent Assizes, 1796, held at Kingston, in the County of Surrey (London, 1796). Concanen, an attorney, wrote to condemn what he said were the excesses of Garrow's courtroom behavior and in particular to vindicate himself against the charge that he had acted improperly in his advice to a client, a charge Garrow had made against him in court. But even Concanen began by acknowledging that Garrow's “great abilities, and … persevering disposition” had brought him “to considerable rank in your profession” (p. 2: emphasis in original). He also seemed to think that Garrow had himself significantly changed the character of cross-examination, an “art,” he said, in addressing Garrow, not without sarcasm, “which, till your day, fell far short of its present wonderful perfection” (p. 4) (I am grateful to John Langbein for bringing this pamphlet to my attention.) Ten years later, an even more damning critic called Garrow “a subtle, sagacious, bold, an acute, and imperious advocate,” who was “without a rival” in examining and cross-examining witnesses (Hague, Thomas, A Letter to William Garrow, Esq., in which the Conduct of Counsel in the Cross-Examination of Witnesses and Commenting on their Testimony is fully discussed, and the Licentiousness of the Bar Exposed (London, ?1808), 45Google Scholar. I intend to examine contemporary criticism of Garrow's courtroom manner more fully in later work.

70. The Law Review 1 (1844): 318–28Google Scholar.

71. George, M. D., Catalogue of Political and Personal Satires in the British Museum (London: British Museum, 1947) VIII, no. 10841, pp. 588–89Google Scholar. The print is reproduced in Sharpe, J. A., ed., Crime and the Law in English Satirical Prints, 1660-1832 (Cambridge: Chadwyck-Healey, 1986), 236Google Scholar.

72. See above, note 69, for two of Garrow's critics who blamed him for diminishing the dignity of the courts and altering the nature of the trial. For later conflicts arising over the nature of advocacy, see Pue, W. Wesley, “Moral Panic at the English Bar: Paternal vs. Commercial Ideologies of Legal Practice in the 1860s,” Law and Social Inquiry 15 (1) (Winter 1990): 49–118CrossRefGoogle Scholar.

73. For this, and the general subject of changing notions of the rights of the accused, see Twining, William, Theories of Evidence: Bentham and Wigmore (London: Weidenfeld and Nicolson, 1985), 95–108Google Scholar.

74. Blackstone, , Commentaries 4:349, 352Google Scholar.

75. Old Bailey Sessions Papers (Feb. 1784, no. 235), 319.

76. Ibid. (May 1784, no. 520), 707.

77. Ibid. (Sept. 1791, no. 312), 482.

78. Sir Phillips, Richard, Golden Rules for Jurymen (London, n.d., but c. 1820Google Scholar), a broadsheet containing twenty-five “rules”—that is, exhortations and recommendations to jurors about how they should behave in the courtroom, and asserting their rights as well as their duties. There is a copy in the British Library at 1890.e.3 (96).

79. Starkie, Thomas, Laws of Evidence and Digest of Proofs in Civil and Criminal Proceedings (London, 1824Google Scholar); see Twining, Theories of Evidence, 95. Twining provides an illuminating discussion of Paley and Romilly's dispute about the harmfulness of wrongful conviction, of Bentham's views on the presumption of innocence and related issues, and of the formulation of a more “civil-libertarian” argument by some of Bentham's commentators, particularly Thomas Denman in a review in the Edinburgh Review in 1824, idem, 95-108.

80. Langbein, “Shaping the Eighteenth-Century Criminal Trial,” 130-31.

81. Quoted in Twining, Theories of Evidence, 97.

82. Beattie, Crime and the Courts, 276-77.

83. 6 & 7 Wm. IV, c. 114 (1836): “An Act for enabling Persons indicted of Felony to make their Defence by Counsel or Attorney.”

84. Stenton, Michael, ed., Biographical Dictionary of the House of Commons, 2 vols. (Hassocks, Sussex: Harvester Press, 1976), 1:262Google Scholar.

85. Dictionary of National Biography 12:617-21; for Mackintosh's interest in penal reform, see Radzinowicz, A History of English Criminal Law 1: ch. 17.

86. For the unusually well-reported debate on this bill, see The Parliamentary Debates: forming a continuation of the work entitled “The Parliamentary History of England,” n.s., 11 (1824): 180–220Google Scholar.

87. For Ewart, see Stenton, , Biographical Dictionary of the House of Commons 1:132Google Scholar; Dictionary of National Biography 6:955-56.

88. 6 & 7 Wm. IV, c. 114 (1836).

89. Debate on the bills introduced in the 1820s was reported on two occasions: in 1821 (Parliamentary Debates 4:945-46, 1512-14); and in 1824 (ibid. 11:180-220).

90. Ibid. 4 (1821): 1513.

91. Ibid. 11 (1824): 182.

92. Ibid. 18 (1833): 611; ibid. 24 (1834): 160-1, 168-69, 824-25.

93. Ibid. 4 (1821): 945-46.

94. Ibid. 11 (1824): 182.

95. Ibid. 18 (1833): 609; ibid. 31 (1836): 498.

96. For the argument that the judge acted as counsel for the defendant, see, for example, ibid. 11 (1824): 190-91, 192, 206, 208, 213; and for the consequences of that notion for the administration of the law and concepts of justice, see McGowen, Randall, “The Image of Justice and Reform of the Criminal Law in Early Nineteenth-Century England,” Buffalo Law Review 32 (Winter 1983): 118–20Google Scholar.

97. Parliamentary Debates 18 (1833: 611Google Scholar; ibid. 28 (1835): 356; House of Lords Sessional Papers 46 (1835), 317:50–51Google Scholar.

98. Parliamentary Debates 11 (1824): 190Google Scholar.

99. Ibid. 4(1821): 1513.

100. Ibid. 18 (1833): 610.

101. Ibid. 24 (1834): 163.

102. Ibid. 11 (1824): 185; and see Lushington's remarks on this point in the same debate. Ibid.: 210.

103. Edinburgh Review 45 (1827): 82Google Scholar (for Smith's authorship, see The Wellesley Index to Victorial Periodicals (Toronto, University of Toronto Press, 1966), 1:468Google Scholar.

104. Parliamentary Debates 11 (1824): 210Google Scholar.

105. Journal of the House of Commons 79 (1824): 259Google Scholar.

106. Parliamentary Debates 24 (1834): 163Google Scholar; see ibid. 28 (1835): 631-32, 871.

107. Ibid. 24 (1834): 159, 164, 167-68; ibid. 31 (1836): 497; Second Report from His Majesty's Commissioners on Criminal Law. Parliamentary Papers (1836), 36:201–3Google Scholar.

108. Parliamentary Debates 28 (1835): 362, 627, 820, 866, 872Google Scholar; House of Lords Journal 68 (1836), App. 4, 54Google Scholar; Second Report… on the Criminal Law, 15.

109. Talfourd, T. N., “On the Profession of the Bar,” The London Magazine and Review, n.s., 3 (1825): 327Google Scholar.

110. “The real and only question,” Lushington, said, “was this: how shall the criminal law be so administered as best to secure justice to all the parties concerned? The question was not, how a criminal on his trial shall most easily escape; but how innocence can be most certain of acquittal, and how guilt can be most sure of conviction.” Parliamentary Debates 11 (1824): 209Google Scholar.

111. Ibid. 24 (1834): 168.

112. Second Report… on Criminal Law, 1836, at 16. The commission had been appointed in 1834 by the Melbourne government principally to report on penal matters, particularly capital punishment and ways that it might be restricted. The commissioners took up full defense by counsel because they saw this as an issue closely related to their main concern.

113. Parliamentary Debates 24 (1834): 160Google Scholar.

114. For the connection between the wider debate on the criminal law and the campaign for the defense counsel legislation, see McGowen, , “The Image of Justice,” Buffalo Law Review 32 (1983): 117–25Google Scholar.

115. Radzinowicz, , History of English Criminal Law 1:591Google Scholar.

116. William Ewart, for example, introduced the legislation that abolished capital punishment for horse-stealing, for sheep- and cattle-theft, and for theft from a house to the value of forty shillings (1832); and Thomas Lennard, another supporter of the campaign for full defense by counsel, introduced the bill abolishing hanging for housebreaking (1833): Radzinowicz, , History of English Criminal Law 1:603Google Scholar.

117. Ibid.:733-34.