Lynn mackay why they stole

Since their presence was not always recorded, the actual number appearing was probably higher. Although they had appeared first for the prosecution in the s, barristers for the defence outnumbered those for the prosecution throughout the rest of the century.

In addition to the stimulus provided by the participation of solicitors in the preparation of cases for trial and associated worries about vexatious prosecutions , there are a number of reasons why lawyers were introduced into the criminal trial in the eighteenth century. The initial impetus came from the government, particularly following the Hanoverian Succession in Worried about the stability of the regime and the crime wave which followed the end of the War of the Spanish Succession, the government funded lawyers to prosecute selected cases of serious crime riot, sedition, murder, rape and violent property offences in order to ensure that they were successful.

The presence of lawyers for the prosecution but not the defence created concerns about the fairness of the trial process, which is probably why the judges allowed barristers to appear for the defence in a limited capacity for the first time in the s. They were probably also concerned about the increasing number of prosecutions initiated by thief-takers hoping to claim government rewards, or which relied on criminal accomplices who had turned crown evidence in order to save their lives.

Both created concerns about perjured evidence, particularly in light of scandals surrounding the false prosecutions initiated by the thief-takers Jonathan Wild in and John Waller in In this context, giving defendants extra assistance to allow them to challenge problematic prosecutions must have seemed desirable.

Although thief-takers continued to be active, and raise concerns, later in the century, somewhat different reasons explain the dramatic increase in the number of counsel who appeared in trials from the s to the end of the century. In the s and s the growth of radical politics in London, notably centred around John Wilkes , led to increased use of the law to challenge the government on a number of issues. While the criminal courts were not the focus of their activities, radical lawyers did use the courts to initiate prosecutions for murder against a Justice of the Peace and a soldier following the killing of a protester during a demonstration outside King's Bench Prison in Changes in the penal system in the late s and early s, notably the increased use of imprisonment as a punishment, the introduction of the hulks , and the resumption of transportation to Australia , together with the dramatic increase in the number of criminal trials following the Gordon Riots in and the end of the American War three years later, further contributed to the growing use of defence counsel.

Those at the sharp end of the criminal justice system adopted an increasingly adversarial relationship towards the courts, challenging their prosecutors, verdicts and sentences, with and without the assistance of barristers, with increasing vigour. Most notable among the barristers who argued criminal cases at the Old Bailey was William Garrow , who in the ten years from acted in over one thousand trials, three quarters of which on the side of the defence.

By the late eighteenth century the practice of providing counsel to some poor defendants free of charge, combined with the relatively low charges of barristers in straightforward prosecutions, meant that artisans, labourers, servants, and even "women of the town" frequently used counsel. When the judges first allowed prosecution counsel in criminal trials in the s they could not have imagined that their presence would become so commonplace, nor that defence counsel would come to outnumber those for the prosecution.

Even more importantly, they did not anticipate that the presence of counsel would fundamentally transform the nature of the criminal trial in England, as jurors, judges and defendants were increasingly sidelined in favour of the dominant role played by counsel. Over the course of the century challenges by counsel, predominantly for the defence, led to the adoption of more stringent criteria for the admissibility of evidence and higher standards of evidence needed for conviction.

In particular, over the course of the eighteenth century the following rules were established through trials held at the Old Bailey :. These principles were developed through the practices carried out by defence counsel of aggressive cross-examination of witnesses and persistent challenges to the evidence, demanding that once a principle had been voiced in one criminal case it should be adopted in others. In the s these practices became more aggressive as the number of counsel in court grew, their presence was increasingly accepted, and the accused adopted an increasingly antagonistic stance towards the courts.

Consequently trials became more adversarial, and the focus of trials shifted from the defence to the prosecution as the key question came to turn on whether the prosecution had satisfactorily proved the accusation.

Defendants, who had previously been the focus of the criminal trial, were encouraged to remain silent. Arguably, therefore, the presence of lawyers in the courtroom shifted the balance of power in the courtroom towards the defendant, prompting concerns that the guilty were able to evade justice.

As the magistrate Patrick Colquhoun complained in , as soon as a thief is arrested, "recourse is immediately had to some disreputable attorney, whose mind is made up and prepared to practice every trick and device which can defeat the ends of substantial justice".

The ability of offenders such as Mary Harvey to avoid conviction for long periods with the assistance of counsel is indeed impressive. There is some evidence that those who were defended by counsel were more likely to be acquitted: over half of William Garrow's clients were acquitted, compared to just 35 per cent of all defendants in the same years.

The evidence suggests that these developments worried the authorities, particularly after when anxieties about radicalism and social instability escalated. Concerns about the high level of acquittals, and that defendants were learning tricks for evading justice by reading printed accounts of trials, led the City of London to prohibit the publication of trials which resulted in acquittals in the Old Bailey Proceedings between and The impact of barristers was even wider. Those who served at the Old Bailey also practised in other London courts, and also dealt with poor law appeals, vagrancy cases, and cases of debt.

John Silvester, one of the most active Old Bailey counsel, regularly appeared on briefs for settlement and vagrancy cases for the s. Overall, a remarkably high proportion of defendants were found not guilty throughout the eighteenth century, even before the introduction of lawyers. There are a number reasons why there were so many acquittals and partial verdicts in the eighteenth century.

The construction of female mentality as weaker and more susceptible to influence was also instrumental in the increasing attribution of female thefts to kleptomania in the last decades of the 19th century. The influence of such gender discourses meant female thieves were treated differently at various stages of the judicial process. The trivial nature of female property offences, or at least their construction in this way, meant juries were under less pressure to convict women.

That, historically, the majority of female thieves were acquitted while the majority of male ones were convicted was also due to the sympathy engendered by certain types of women, especially those who were young, pregnant or already mothers.

Finally, even if convicted, female thieves were sentenced far more lightly, again perhaps due to the perception that female criminals represented less of a danger to society King, Houndsmills: Palgrave Macmillan. Emsley, C. London: Longman. King, P.

Oxford: Oxford University Press. MacKay, L. Journal of Social History, 32 3 : Palk, D. You could not be signed in. Sign In Forgot password? Don't have an account? Sign in via your Institution Sign in. Purchase Subscription prices and ordering for this journal Short-term Access To purchase short term access, please sign in to your Oxford Academic account above. View Metrics. Email alerts Article activity alert. Advance article alerts.

New issue alert. Receive exclusive offers and updates from Oxford Academic. Related articles in Web of Science Google Scholar.

Citing articles via Web of Science By Philippa Koch.