394 Crime and the State
prepared by solicitors, especially those conducted by lawyers arguing from well-
prepared briefs, confronting prisoners who had little knowledge of the evidence
to be presented against them until they heard it in court and who had to defend
themselves may well have created the sense of imbalance and unfairness that a
generation earlier had led to the passing of the Treason Act. That statute had
given the defendant in cases of high treason the right to be represented by coun-
sel, a right that some had argued then should be extended to all prisoners, in-
cluding accused felons.^82 There was to be no similar statute in the 1730 s; nor was
there a move to change the rules that prohibited felons from engaging counsel.
But the rules were overlooked in practice, presumably because some defendants
sought counsel and some judges allowed it. It was no doubt important that
lawyers engaged to prosecute a number of cases would have been physically
present and available to be hired by defendants. Perhaps it was the lawyers
themselves, out of a sense of the unseemliness of their confronting an untutored
and unskilled defendant, or simply because they saw a new source of fees, who
suggested to the first defendants to engage counsel that the judges might look
more tolerantly on their being represented by a lawyer now that the prosecution
side sometimes was. At any event, by the late 1730 s judges had allowed a few ac-
cused felons at the Old Bailey and at the assizes to be represented by counsel.^83
What those lawyers could do was limited, and was to remain limited for an-
other hundred years. Even so, barristers used to a court setting could do a great
deal more for defendants than they could do for themselves. Defence counsel re-
mained few in number until the last decades of the century, when they quite
suddenly in the 1780 s became familiar figures in the criminal courtroom and
began to act in ways that in time transformed the trial by putting it entirely in
the hands of lawyers.^84 That was far in the future, but it had its roots in the
second quarter of the eighteenth century, at least in part as an inadvertent by-
product of the whig administration’s determination to defend the Revolution
and the Hanoverian succession by their active engagement in the administra-
tion of the criminal law.
There is little reason to doubt that the government’s commitment of re-
sources to effective prosecution helped to produce the unusual appearance of
counsel in a handful of felony cases at the Old Bailey in the 1720 s and 1730 s. But
this may not have been the only encouragement in this period to the engage-
ment of solicitors in the preparation of prosecution briefs and of barristers to
argue them in court. There were other reasons for men becoming involved in
(^82) Above, Ch. 6 , text at n. 12.
(^83) Langbein, ‘Criminal Trial before the Lawyers’, 311 – 13 ; Stephan Landsman, ‘The Rise of the Con-
tentious Spirit: Adversary Procedure in Eighteenth-Century England’, Cornell Law Review, 75 ( 1989 – 90 ),
534 – 9 , 572 – 80 ; J. M. Beattie, ‘Scales ofJustice: Defense Counsel and the English Criminal Trial in the
Eighteenth and Nineteenth Centuries’, Law and History Review, 9 ( 1991 ), 221 – 67 ; idem, Crime and the Courts,
356 – 62.
(^84) Beattie, ‘Scales ofJustice’, 226 – 9.