Crime and the State 393The engagement of solicitors in ordinary criminal cases almost certainly re-
mained unusual in this period. But the government’s payment of costs had per-
haps established a pattern, and demonstrated the usefulness of case
preparation. This had immense implications for the trial process itself. The
more effective preparation of prosecution cases by solicitors made it more likely
that victims would also be encouraged to engage lawyers to represent them in
court. And as John Langbein has shown, it is precisely in the 1720 s and 1730 s that
barristers began to prosecute in a few cases at the Old Bailey—mainly for gov-
ernment departments and trading companies, but in a few private cases too.^79
In several of the cases we have noted being managed and paid for by the treas-
ury solicitor in the 1720 s the government also hired counsel to conduct the pros-
ecution in court. In the Coke murder trial, as we have seen, Townshend ordered
the prosecution to be conducted ‘by able Council and a proper Solicitor’; and,
in the case of the murder in Pembroke, the treasury paid an attorney to pros-
ecute.^80 That may have been the case, too, in the trials of London robbers
supported by the government. In the prosecution of William Meneer for steal-
ing the City’s weights, the aldermen also paid a guinea to engage William
Whitaker, a barrister, to present the case at the Old Bailey.^81
Barristers were not common at the Old Bailey in the 1730 s. But their import-
ance does not lie in their numbers. Their appearance had a crucial effect on the
form of the common law criminal trial because the engagement of prosecuting
counsel was countered in a number of cases by counsel acting for defendants.
And whereas the first was unusual, the latter was, or had been, forbidden by rule
of court. The 1720 s and especially the 1730 s thus saw a change of immense sig-
nificance for the future. Solicitors could act in felony cases as easily—though
perhaps less profitably—for the defendant as the prosecutor; and counsel could
argue one brief, if they were allowed to do so by the judges, as readily as the
other. The push may thus have come from lawyers themselves—from both so-
licitors or barristers, stirred into action in the first place by prosecutors of
various kinds.
There is no certain evidence why the judges allowed the admission of defence
counsel. We might presume that the appearance of lawyers acting for the pros-
ecution, if only in a few cases, told so heavily against defendants in the court-
room that judges were persuaded to restore some balance by giving prisoners
the right to the protections a trained lawyer might afford them. The established
form of the criminal trial presumed that two untrained and essentially unpre-
pared amateurs—the victim and the accused—would confront one another
and that the trial would be conducted under the judge’s lead. Prosecutions
(^79) John H. Langbein, ‘The Criminal Trial before the Lawyers’, University of Chicago Law Review, 44
( 1977 – 8 ), 311 – 13 ; idem, ‘Prosecutorial Origins of Defense Counsel’, 325 – 56.
(^80) SP 44 / 81 , p. 228.
(^81) The brief is marked ‘For the King. The King agt Meneer. Brief. Wm Whitaker 1 Gn.’ (CLRO:
London Sess. Papers, June 1738 ).