Abstract
The Prisoners’ Counsel Act 1836 led to a forceful advocacy, often matched by counsel for the Crown, delivered, as in civil cases, with much melodrama and floridity of language before common jurors with limited education. Strong appeals to emotion and biblical allusions were frequently heard. During the 1830s, 40s and 50s courtroom scenes of discourtesy, and worse, were not uncommon. Because of public opinion, developing bar etiquette and the judiciary matters improved, although not without some setbacks, in the second half of the nineteenth century. Key changes in 1851 to rules concerning criminal indictments, which limited arguments in court about their validity, are outlined. Tentative conclusions are then drawn about the effect on advocacy of the reduction, in the first half of the nineteenth century, of the number of offences punishable by death.
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Notes
- 1.
The Victorian Bar, London, Robert Hale, 1982, page 13.
- 2.
The link between advocacy and acting was acknowledged by Basil Montagu in Essays and Selections, London, William Pickering, 1837. In expounding the duty of an advocate owed in civil cases to his client, he wrote, at pages 266 to 267, “except when a man’s life was at stake, it was expedient that a judge and a jury should hear the opposite statements of men better able than individual suitors to do justice to their respective causes. The advocate might in the course of his duties be required to profess that which he did not feel and to support causes in which he did not believe or which he knew to be wrong. This, however, was nothing but a species of acting without an avowal that it is acting. The advocate did not mix himself either with his client or his cause; he lent his exertions but not himself. He exercised no discretion as to whom to plead for; to do so would prejudice the suitor”.
Some barristers wrote plays. One, for instance, was Thomas Noon Telfourd (1795–1854), perhaps best remembered for his defence of Edward Moxon, charged with blasphemy for publishing a popular complete works of Percy Bysshe Shelley, in 1840. A classical scholar, Telfourd produced Ion, a tragedy based on a drama from Euripides, performed in Covent Garden in 1836, and The Athenian Captive. Both were rich in sentiment, which was so popular in the 1830s. His Glencoe was a tragedy based on Scottish history. Noon Telfourd had been the pupil of Joseph Chitty (below at note 5), renowned for tearful melodrama in court. Thomas Noon Telfourd became a Judge of Common Pleas. A portrait of him hangs in Middle Temple.
- 3.
Bernard Kelly, Famous Advocates and their Speeches, Sweet and Maxwell 1921, page 21. Steven Cowan, a historian of education and of the labour movement at the Institute of Education, London (Interviewed on the 6th June, 2010.), explained that many people would use watching court proceedings as a sort of base for their self-education. The presentational style of barristers had been copied in the late eighteenth century by radicals like John Thelwall (who was successfully defended at court by Thomas Erskine, see Chap. 2.) and in the following century went on to influence the rather loquacious delivery of the early socialists and trade unionists who were so keen to impress their hearers with the depth of their education.
- 4.
J.R. Lewis, The Victorian Bar, Robert Hale, London, 1982, page 120.
- 5.
Henry James Byron, 1835–1884, who, after abandoning his studies at Middle Temple for the Bar, found great playwriting success in burlesques and other punny plays. The pun appeared much in the humorous magazines he edited.
- 6.
Showing that by the second half of the twentieth century this technique had largely disappeared, Geoffrey Robertson QC,: Sir John Mortimer, creator of Rumpole of the Bailey , 16th January, 2009, The Times Obituary, recalled how, almost alone at the bar, the late John Mortimer QC, perhaps best known for the Rumpole books, could laugh a case out of court, especially in his closing speeches. Geoffrey Robertson frequently appeared in court as John Mortimer’s Junior.
- 7.
One such was Sir Fitzroy Kelly who later became Solicitor General, Attorney General and eventually join the Bench as Chief Baron of the Exchequer. He cried very conspicuously in the course of his highly sentimental defence of the notorious murderer John Tawell in 1845 (Tawell was the first suspect to be arrested after his description was telegraphed from one part of the country to another). In this he was far from alone. The Examiner of 24th May, 1856 reported that since the trial of Thurtell, there has hardly been a remarkable case in which counsel for the prisoner has not wept for his client, or protested his solemn belief in his innocence…… The case of Thurtell, in which Joseph Chitty, who had a huge junior practice and was a prolific writer of legal textbooks, shed copious tears for his client, took place in 1823/24, some years before the Prisoners’ Counsel Act. It was almost the last famous trial under, what Eric Watson, The trial of Thurtell and Hunt , in the Famous English Trial Series, William Hodge and Co, Edinburgh and London, 1920, described as the old Tudor procedure and the presiding judge as inquisitorial. It was the first trial by newspaper and the first in which there was any serious collision between judges and the press about the latter’s investigations and reporting of proceedings.
- 8.
Thomas Dixon, Weeping Britannia, Oxford University Press, 2015, pp. 174–179. Sir James Shaw Willes, a judge between 1855 and 1872, known for great intellect, literary sensibility and mercy in criminal cases, was one of the last “weeping judges”.
- 9.
Quoted by J. R Lewis, The Victorian Bar, Robert Hale, 1982, page 14. Sergeant Wilkins, earlier in 1849, represented Mr. Mannings who had been charged jointly with his wife for the murder of her lover. Wilkins sought to place the entire responsibility on Mrs. Mannings, see later.
- 10.
Bernard Kelly, Famous Advocates, London: Sweet and Maxwell, 1921, page 23.
- 11.
See M. W. Disher, Melodrama: Plots that thrilled. New York Macmillan, 1954.
- 12.
Dion Boucicault’s hugely successful adaptation in 1852 of Alexander Dumas’s The Corsican Brothers is an example.
- 13.
Queen Victoria watched seven performances of Boucicault’s The Corsican Brothers or The Fatal Duel: Richard Fawkes, author of Dion Boucicault – A Biography, speaking at Victorian Fancies, National Theatre, London, 2010.
- 14.
Terence Hawkes, Meaning by Shakespeare. London: Routledge, 1992.
- 15.
See V. C. Clinton-Baddeley, The Burlesque Tradition in English Theatre, Methuen, 1952; also see Robert Tanitch, The London Stage in the Nineteenth Century. Haus Publications, 2010.
- 16.
Wilkie Collins (1824–1889), the author of melodramatic, “sensationalist” and widely read novels, including Basil, The Woman in White and The Moonstone, and plays, had studied at Lincolns Inn to become a barrister.
- 17.
See Chap. 2, Classics and rhetoric.
- 18.
A significant result of Macauley’s Minute on India , which dealt with what should be taught in educational institutions in India, was that knowledge of Shakespeare achieved great prominence in the sub-continent and found its way into general and court oratory there.
- 19.
Roman History was central to a number of popularly read novels including Edward Bulwer-Lytton’s The Last Days of Pompey, published in 1834, and Antonina or the Fall of Rome, by Wilkie Collins (1850). Myths and history of ancient Greece and Rome were an important theme in Nineteenth Century Art. Prominent amongst artists steeped in tradition of admiration for classical antiquity were Frederic Leighton, J.W. Waterhouse Lawrence Alma – Tadema who produced many admired and much exhibited works. Classical myths, Greek and Roman history, and its reception and influence in nineteenth century Britain, were sometimes burlesqued, notably in stage productions by Robert Brough.
- 20.
The Odyssey was translated in the seventeenth century by Chapman in iambic pentameter and the Iliad in iambic heptameter. Editions of Chapman’s Homer’s Hymns, the Georgics of Virgil, Hesiod’s Words and Days, Hero and Leander, and Juvenal’s Satires were published in the nineteenth century.
- 21.
See also Christopher Stray, Classics Transformed, Schools, Universities, and Society in England, 1830–1916, Clarendon Press, 1998, Chapter 3, who explained how possession of knowledge of Latin, Greek and the Classics meant membership of an elite and was a barrier for those without it. This was re-iterated in an interview with Mr. Stray, held on the 2nd July, 2010. Samuel Smiles in Self Help, published in 1859, Chapter XI, gives examples of persons, including the young Samuel Romilly (Chap. 2 of this book), who had risen far above their humble origins by acquiring Greek, Latin and the Classics.
- 22.
To Serjeant Wilkins was attributed the famous remark that his excuse for drinking a pot of stout at midday was that he wanted to fuddle his brain down to the intellectual standard of a British jury. J. R. Lewis, The Victorian Bar, Robert Hale, London, 1982, page 69.
- 23.
Anonymous (1847–48), 10 Law Times 319.
- 24.
Anonymous (1848–49). 11 Law Times 425. In similar vein the Jurist, 11th August, 1849, regretted that juries were usually composed of persons with a scarcely sufficient education to understand the ordinary conversational language of educated men and quite incapable of any close or acute reasoning.
- 25.
David Bentley, English Criminal Justice in the Nineteenth Century, Hambledon Press, London, 1998, page 92. For a description of how juries in other jurisdictions of the British Empire were composed see Richard Vogler, The International Development of the Jury: The Role of the British Empire, International Review of Penal Law Vol. 72, 2002. The article outlines the transplantation of English common law juries overseas with colonisation and Empire, beginning with North America.
- 26.
A. H. Manchester, A Modern Legal History of England and Wales 1750–1950, London: Butterworths, 1980, pp. 90–99.
- 27.
Section 2 of the 1825 Juries Act (6 George IV.), “An Act for consolidating and amending the Laws relative to Jurors and Juries”, set out persons who were exempt. The list included: Peers, Judges, Ministers of Religion, Serjeants and Barristers, Members of the Society of Doctors of Law, Advocates of Civil Law, Attornies, Solicitors and Proctors, Officers of the Courts, Coroners, Gaolers, Surgeons, Doctors, Apothecaries, Members of the Army and Navy, Ship Pilots, Royal Household Staff, Officers of Customs and Excise, Sheriff’s Officers, High Constables and Parish Clerks.
- 28.
The Juries Act 1825 Sections 1, 8 and 50 and afterwards by the Juries Act, 1870, Section 7.
- 29.
For disquiet about the standards of jurors, see the Second Report of the Common Law Commissioners, 1836. Concern about the poor quality of common law jurors persisted for decades. The Juries Act 1870 declared that special jurors were not to be exempt from common juries, but the practice continued. Proposals by the Attorney General, made between 1873 and 1874, to bolster the common jury by making it necessary to include four special jurors and to give powers to trial judges in felony cases to direct trial by special jury foundered. David Bentley, English Criminal Justice in the Nineteenth Century, Hambledon Press, 1998, page 93.
- 30.
Vivid examples of references to the Bible and the Almighty mentioned in this book include Charles Phillips defence of Francois Courvoisier in 1840, this Chapter; Edward Kenealey’s defence of Thomas Castro/Arthur Orton (1873–74), also in this Chapter; further in this Chapter, the speeches of Thorne-Cole to jurors at the London Sessions in the 1870s and 1880s; and Digby-Seymour for defendants in the 1867 Fenian Trial in Manchester, Chap. 5.
- 31.
Thomas Dixon, Weeping Britannia, 2015, Oxford University Press, pp. 72–81.
- 32.
For more on George Whitefield see, J.C. Ryle, Christian Leaders of the 18th Century, Banner of Truth, 1869, Estimation of Whitefield’s Ministry. According to Simon Schama, evangelical passion, which remains a brilliant strand in the weave of American discourse and rhetoric, goes back to the Great Awakening in the 1740s when flocks thrilled to Methodist preachers such as George Whitefield. Mile High Stadium, The Times, August, 2008. Further, on the Great Awakening and its affect on American Discourse, see Christopher Grasso, A Speaking Aristocracy, University of North Carolina Press, 1999, Chapter 2.
- 33.
Serjeant Charles Wilkins, d 1857, was renowned for his ability to rouse emotions through colourful speech, florid over-emphasis, flamboyant gestures, use of the bon mot and for playing on the passions and the prejudices of the jury. J. R. Lewis described him as epitomizing the early Victorian years of the Bar (The Victorian Bar, Robert Hale, London, 1982. page 68.). His advocacy drew on his earlier public performances as a Wesleyan preacher in Methodist Chapels, ale house comedian and actor.
Words, phrases and rhymes from the King James Bible, first published in 1611, had long become part of English speech in and out of court (See Melvyn Bragg, The Book of Books: A Biography of the King James Bible, BBC Books, 2011.). It is worthy of note that Gilbert Gray QC (1929–2011), one of the Bar’s greatest jury advocates in the last decades of the twentieth century, was said to have based his rousing courtroom style on the rolling cadences and richness of language he had heard as a boy in his local Salvation Army Hall and Methodist chapel (Daily Telegraph, Obituary, April, 26th, 2011).
- 34.
Henry Brougham, Speeches of Henry Lord Brougham, Edinburgh, Adam and Black, Volume 1, page 105.
- 35.
(1837) 1 Keen 659.
- 36.
For accounts of this, see Jan-Melissa Schramm Testimony and Advocacy in Victorian Law, Literature and Theology Cambridge University Press, 2000, Chapter 3 and Allyson May, The Bar and the Old Bailey, University of North Carolina Press. Chapel Hill and London. 2003, Chapter 8, which also includes discussion on acceptable limits of advocacy before the Prisoners’ Counsel Act, 1837.
- 37.
See Sir William Holdsworth, Charles Dickens as a Legal Historian, Chapter Bardell and Pickwick, New Haven: Yale University Press, 1928.
- 38.
From the thirteenth century Serjeants-at-law were the highest order of counsel, and as a class formed a professional collegiate society centred at Serjeants Inn. They became identifiable by a coif, or black patch on the crown of the wig. Until 1845, when it was abolished by Act of Parliament, Serjeants held a valuable monopoly of practice as leading counsel in the Court of Common Pleas. Elevation from barrister to Serjeant was a mark of professional success and allowed greater fees to be charged. A serjeant was allowed to sit in the House of Lords, though not allowed to speak. Judges in the three superior courts of Common Law were chosen from the serjeants. Following custom, if a barrister below the rank was selected he would formally be appointed as a serjeant before being sworn as a judge. In the nineteenth century there were seldom more than forty serjeants in existence at one time. The Judicature Act 1873 removed the requirement for a barrister to become a serjeant before attaining a place on the Bench. This, combined with the earlier loss of their monopoly in the Court of Common Pleas, and the rise of the rank of Queens Counsel, especially since the early 1830s, when numbers appointed multiplied (see Daniel Duman, The English and Colonial Bars in the Nineteenth Century, Croom Helm, 1983, page 35.), as the sign of professional distinction, led to the order of serjeants being widely viewed as anomalous. It was dissolved in 1877. Serjeant’s Inn in Chancery Lane was sold and the proceeds divided between the thirty six former members. The QC’s became the inheritors of the prestige of the serjeants. (Baker, J.H. The Order of Serjeants at Law: A Chronicle of Creations, with Related Texts and a Historical Introduction. London, Seldon Society, 1984). For an account of Serjeants in Ireland, see Hart, A. R. A History of The King’s Serjeants at Law in Ireland. Dublin: Four Courts Press, 2000.
- 39.
Madeline House and Graham Storey suggest that Dickens modelled Serjeant Buzfuz on Charles Phillips. Dickens’s Letters, Volume 11, Oxford, Clarendon Press, 1965, pp. 86–87.
- 40.
David James O’Donoghue, Charles Phillips, Dictionary of National Biography, 1885–1900, Volume 45.
- 41.
The Georgian Era Memoirs, London: Vizetelly, Branston and Co, 1833, page 522.
- 42.
Thomas Dixon, Weeping Britannia, Oxford University Press, 2015, pp. 206–207.
- 43.
Charles Phillips was noted for his use of alliteration, as his opening of a libel case in 1830 shows:
Who shall estimate the cost of a priceless reputation – that impress which gives this dross its currency, without which we stand despised, debased, depreciated…………
Quoted by Richard DuCann, The Art of the Advocate, Penguin, 1993, page 217.
- 44.
Bernard Kelly, Famous Advocates and their Speeches, Sweet and Maxwell, 1921, London, page 19.
- 45.
Partly reproduced in David Cairns, Advocacy and the Making of the Adversarial Criminal Trial 1800–1860, Oxford: Clarendon Press 1998, Appendix 3. The controversy over Phillip’s behaviour is discussed in pages 129–136.
- 46.
Courvoisier’s Confession of Guilt, The Times, 22nd June, 1840.
- 47.
The Examiner, 28th June, 1840.
- 48.
Dickens never appeared to waver in this belief. In Great Expectations , written nearly twenty years later, the importance of cross-examination, as a means of avoiding injustice, is shown by the stranger’s cross-examination of Mr. Wopsle. A Dicken’s Anthology, Selected by Sidney Macer-Wright, Heron Books, 1957, Brow Beating as a Fine Art, pp. 55–59.
- 49.
For example see, The Bar and the Press, The Examiner , 16th August, 1845.
- 50.
Mr. Punch to the Gentlemen of the Press, Punch , 1845, pp. 64–65. (Mr. Punch may have been W. M. Thackeray.) Sir Fitzroy Kelly’s tearful and sentimental defence of the notorious murderer John Tawell in the same year had attracted much criticism. See, for example, The Times (From the Examiner) March 31st 1845. Mr. Punch’s reference to “a certain great advocate and school master abroad” can only be to Lord Henry Brougham.
- 51.
The nature of the duty owed by counsel to a guilty client did not form part of the politicians’ discussion at the time of the passage of the Prisoners’ Counsel Act 1836: Allyson N. May, The Bar and the Old Bailey, 1750–1850 Chapel Hill 2003 pp. 202–3.
- 52.
(R v Reid and McCabe 1847). See Allyson May, The Bar and the Old Bailey 1750–1850, pp. 224–225.
- 53.
Andrew Watson, Changing Advocacy, Justice of the Peace, Volume 165, 22nd September, 2001, page 748. Before reaching thirty, William Campbell Sleigh (1818–1887, called to the bar at Middle Temple in 1846), had been married three times, divorced twice and bankrupt two times. These details were brought to public attention in 1853, but did not prevent him being created a serjeant at law in 1868, the same year he patented an invention for an improved appliance for protecting trousers from mud.
- 54.
See for example the Examiner , 27th October, 24th November and 8th December, 1849.
- 55.
The Times, 27th October, 1849.
- 56.
Jan-Melissa Schramm, Testimony and Advocacy in Victorian Law, Literature, and Theology, Cambridge University Press, 2000, page 118.
- 57.
London: John Murray, 1849, page 436.
- 58.
Sir Gervais Rentoul, The Art and Ethics of Advocacy, Haldane Memorial Lecture 1943, pp. 18–19.
- 59.
See Allyson May, The Bar and the Old Bailey, 1750–1850, University of North Carolina Press, Chapel Hill and London, 2003, Concluding Chapter.
- 60.
See Allyson May, The Bar and the Old Bailey, 1750–1850, University of North Carolina Press, 2003, pp. 228–233.
- 61.
Jan-Melissa Schramm, Testimony and Advocacy in Victorian Law, Literature and Theology, Cambridge University Press, 2000, pp. 117–144.
- 62.
In Anthony Trollope’s Orley Farm (published in monthly shilling parts between 1861 and 1862), for example, the central theme is the looming and actual trial of Lady Mason for perjury, committed many years earlier in a bitterly fought court battle about the validity of a codicil, which she had forged, to her late husband’s will. After his closing speech on her behalf, in the later criminal trial before the jury, Mr. Furnival, her leading barrister, sits down:
And yet as he sat down he knew that she had been guilty! To his ear her guilt had never been confessed; but yet he knew that it was so, and knowing that, he had been able to speak as though her innocence were a thing of course. (Anthony Trollope, Orley Farm, London: Folio, 1993, page 617)
- 63.
Patrick Hastings, later, Chap. 9, for instance, steadfastly refused to see his clients in the cells at court. In this he was not alone. (Explained in an interview, on the 30th October, 2007, with Anthony Arlidge QC, who was called to the bar in 1962, Treasurer of Middle Temple in 2003, and widely held to be the leading barrister in England and Wales in criminal defence work.)
- 64.
Palmer, a young surgeon, was tried at the Old Bailey for the murder by strychnine poison of a betting man at Rugeley. The case excited enormous interest and was much reported, not only in Britain but also throughout Europe and beyond, because of the use of what was then an obscure drug and the general air of mystery surrounding the affair. So great was feeling against him in Staffordshire that Parliament passed a special Act (19& 20 Vict. C.16) permitting cases to be transferred to London where there was a clear risk of prejudice against a prisoner locally.
- 65.
William Shee (1804–1868), the son of Irish parents, was the first Catholic barrister to be appointed a judge of the superior courts since James II. The high point of his career as a barrister was his defence of Palmer.
- 66.
Rv Palmer: Verbatim Report. Transcribed by Mr. Angelo Bennett of Rolls Chambers, Chancery Lane, (London: J. Allen, 1856), page 175.
- 67.
Verbatim Report, pp. 307–308.
- 68.
R v Paine (1792) 22 How.St. Tr.358, 412 (1816–1826).
- 69.
Rv Shipley (1783–1784), 21 How.St.Tr 847 (1816–1826). Erskine’s client was indicted for seditious libel. Prosecuting counsel said to the jurors: “I declare upon my honour…… that I not only think it is a most enormous, and most mischievous libel” (page 889). In reply Erskine said ……“following the example of my learned friend, who has pledged his personal veracity in support of his sentiments, I assert, upon my honour to be unaltered, and I believe I may say, unalterable opinion, formed upon the most mature deliberation; and I choose to place that opinion in the very front of my address to you, that you may not, in the course of it, mistake the energies of truth and freedom for the zeal of professional duty. This declaration of my sentiments, even if my friend had not set me the example by giving you his, I should have considered to be my duty in this cause…….” (page 899.) He ended his closing speech by “As a friend of my client, and a friend of my country, I shall feel much sorrow, and yourselves will probably hereafter regret it, when the season of reparation is fled”. (page 929) Excerpts from David Mellinkoff, The Conscience of a Lawyer, pp. 245–246.
- 70.
David Mellinkoff, The conscience of a lawyer, 1973, West Publishing Co, St Paul, pp. 237–247.
- 71.
Legal Observer 15 (1837): 216–217.
- 72.
Ryves and Ryves v The Attorney General (1866) in The Annual Register, vol. 108, pt. II, page 255.
- 73.
David Bentley, English Criminal Justice in the 19th Century, Hambledon Press 1998, Chapter 11.
- 74.
For these and other examples of similar behaviour see J. R. Lewis, The Victorian Bar, Robert Hale, London, 1982, pp. 22–27.
- 75.
Reproduced as a photographic plate, Illustration 8, in J.R. Lewis, The Victorian Bar, Robert Hale, London, 1982.
- 76.
The Times, 27th July, 1847.
- 77.
See J. R. Lewis, The Victorian Bar, Robert Hale, London, 1982, page 24. There was a precedent for duelling. In 1816, John Adolphus, who acted for the defendant in the first case after the Prisoners’ Counsel Act was implemented in 1836, quarreled with another counsel, Peter Alley, in a late sitting Old Bailey trial. Unable to settle their differences, the pair fought a duel with pistols in Calais. Both survived, though Alley’s arm was injured. See James P. Gilchrist, A Chronological Register of Principal Duels. Bulmer and Nicol, 1821, page 252.
- 78.
Bernard Kelly, Famous Advocates and their Speeches, Sweet and Maxwell, 1921, pp. 21–22.
- 79.
William Ballantine, A Barrister’s Life, Richard Bentley, London, 1880, page 66. A contemporary of Ballantine wrote the following about the Old Bailey meals and their effect on standards: The Dinners were good, the wines abundant, and the results visible at the evening sittings. A barrister who had been cross-examining, and speaking for eight hours, was not unlikely to take a little wine for his stomach’s sake, and was sometimes called down to defend a prisoner without any clear notion that he was not to prosecute. The juries who came to sit at five, of course had dined, and living men have seen a judge (not one of the fifteen) descend the stairs, holding fast by the banister, not in wantonness of care, afterwards trying prisoners, when unable to read the dispositions accurately, or to understand the witnesses answers yet getting through the work from memory and habit. The witnesses, who had been waiting all day in the Old Bailey public houses, were often very drunk. One Alderman must always be in the court; no one knows why, but such is the law, and his worship was frequently in a state of modified sobriety. Quarrels of the most discreditable order might be expected from a court so composed. It is better not to attempt a description of the rows. Those who have been present at them will remember; those who have not would disbelieve. Mr Adolphus and his Contemporaries at the Old Bailey , Law Magazine, 34 (1846) pp. 62–63.
- 80.
Richard Hamilton. All Jangle and Riot, Professional Books, 1986, page 271. For other pronouncements made by Serjeant Arabin, and anecdotes told about him, sitting as a judge, see Sir Robert Megarry, Arabinesque at law, 1969, Wildy, Simmonds and Hill. In R v Harris (Cited by Megarry as Arab.AP., ex rel W. B.1834), Charles Phillips, counsel for the prosecution and Serjeant Arabin, sitting as a judge, conducted a conference after which the prisoner pleaded guilty. Arabin said to Phillips, you must distinctly understand that I know nothing of the arrangement. In an example of rudeness from counsel to the bench, not unknown at the time, Phillips replied, Yes my lord it is thoroughly understood that your Lordship knows nothing. (Megarry page 6)
- 81.
Allyson May, The Bar and the Old Bailey, University of North Carolina Press, 2003, pp. 171–172 and John H. Langbein, The Origins of the Adversary Trial, Oxford, 2003, page 25.
- 82.
Richard DuCann, The Art of the Advocate, Penguin Books, 1993, pp. 40–42.
- 83.
Edward Purcell, recollecting the criminal bar, in the late 1870s and early 1880s, when he began his career, wrote: “The coarseness, vulgarity and violence that made “Old Bailey barrister” an opprobrious description were fast dying out, but were not extinct. The older generation persisted in their bad old ways, not by any means mollified by finding their business passing to younger men of a “different type””. Forty years at the Criminal Bar; Experiences and Impressions, Fisher Unwin, London, 1916, page 48.
- 84.
J. R. Lewis, The Victorian Bar, Robert Hale, London, 1982, page 120.
- 85.
Edward Vaughan Kenealy was born in Cork in 1819, educated at Trinity College, Dublin, called to the Irish Bar in 1840 and then to the Bar of England and Wales, at Middle Temple in 1846, where he rapidly rose and became a silk in 1868, working in London and also on the Oxford Circuit. He was eloquent (perhaps rather waspishly, J.B. Atlay, the distinguished barrister and author of Famous Trials of the Century, 1899, Grant Richards, London, page 354, wrote he was the master of a tremendous flow of words, and of the gift which in Irishmen is sometimes eloquence , in Englishmen invariably bathos.) energetic, tenacious and courageous and possessed a stock of quotations and knowledge of poetry for the benefit of jurors. Despite these skills he had a reputation for lacking discretion, inclination to completely disregard the feelings of opponents, making reckless and unsupported statements and failing to appreciate that quarreling with judges was only effective if the jury was on his side. (J. R. Lewis, The Victorian Bar, Robert Hale, London, 1982, page 116. See also B. W. Kelly, Famous Advocates and their Speeches, Sweet and Maxwell, 1921 pp. 113–118).
- 86.
After the death, in 1866, of the eleventh baronet, Sir Alfred Tichborne, whose family was of ancient lineage, originating before the Norman Conquest, Arthur Orton, alias Thomas Castro, who had been a butcher in Australia, came forward and claimed to be Sir Alfred’s elder brother, Roger Charles. He had been educated at Stoneyhurst College, served in the Army and was thought to have been lost at sea, off the coast of South America, in 1854. Lady Tichborne recognized him as her son, despite his coarseness of speech, ignorance of French (Roger Charles had as a child been brought up in France) and the Classics, lack of knowledge of family history and military matters and difference in appearance to Roger Charles. Other members of the family were unconvinced. When Lady Tichborne died, Orton sought to claim his inheritance. To fight his case in court and gain support he sold shares in his hoped for fortune and toured music halls where he denounced the British establishment before working class audiences. The case of Tichborne v Lushington, in the Court of Common Pleas , began in 1871 and lasted 102 days (See J. Atlay, Famous Trials of the Century, London, 1899, Grant Richards, pp. 263–283). The Claimant was represented by Serjeant Ballantine, whose opening speech lasted a day and a half and Hardinge Giffard . The Defendants retained Sir John Coleridge, who cross-examined for twenty two days, and Henry Hawkins. The jury considered the Claimant was not Roger Tichborne and, with his consent, counsel elected to be non-suited. The trial cost the Tichborne family nearly £92,000, making it the most expensive in Victorian Britain. (The National Portrait Gallery, London, possesses a lithograph of the court scene, entitled Scraps in Court, -Tichborne v. Lushington, made by Andrew Maclure in 1871. Amongst others, Arthur Orton, William Ballantine, William Bovill, Henry Hawkins, and John Coleridge are depicted.) At the end of the civil trial, Arthur Orton was committed, by Sir William Bovill, Chief Justice of the Common Pleas, to stand trial for perjury at the Old Bailey where Dr. Kenealy led his defence. The claimant was convicted and sentenced to 14 years penal servitude. Before imposing this long, and it has been said, in view of Kenealy’s behaviour, possibly vengeful sentence, Lord Justice Cockburn said that the Claimant set a wind blowing through England that will take a generation to quiet. Because of widespread fascination with the aristocracy, and that the story was replete with ingredients of a great Victorian novel, including money, class, drink, family squabbles, long lost heirs and intricate legal doings, both cases received intense press publicity and were much discussed at all levels of society. Interest has persisted with a comparatively recent film, The Tichborne Claimant, loosely based on the facts of the cases, being produced in 1998.
- 87.
J. B. Atlay, Famous Trials of the Century, Grant Richards, London, 1899, page 379.
- 88.
Address to the jury on behalf of Thomas Castro/Arthur Orton, Old Bailey, 1874. Reproduced by Bernard Kelly, Famous Advocates and their speeches, London: Sweet and Maxwell, 1921, pp. 116–117.
- 89.
In J. B. Atley’s opinion, never was a prisoner’s chance of acquittal more recklessly sacrificed to the almost insane vanity and headstrong willfulness of counsel, ibid, page 379. In what might be seen as some mitigation on his behalf, Francis Cowper (Holker and Kenealy , Graya, No 67, Easter 1968, page 17) suggested that ill-health (Kenealy suffered from diabetes) partly accounted for his impossible conduct.
- 90.
J.B. Atlay, Famous Trials of the Century, Grant Richards, London 1899, page 380.
- 91.
J. B. Atlay, Famous Trials of the Century, Grant Richards, London, 1899, page 385.
- 92.
Reported in the Law Journal, April 11th, 1874.
- 93.
On the role of Circuit bar messes, where barristers frequently dined, in fostering a professional spirit amongst them and in maintaining standards, see A. H. Manchester, A Modern Legal History of England and Wales 1750–1950, London, Butterworths, 1980, page 68.
- 94.
For an account of the proceedings in Gray’s Inn, see, Sir Malcolm Hilbery, The Kenealy Scandal, Graya, No 62, Michaelmas Term, 1965 pp. 125–137.
- 95.
Forty Years at the Criminal Bar; Experiences and Impressions, Fisher Unwin, London, 1916, page 48.
- 96.
Purcell, ibid, page 49.
- 97.
Edmund Purcell, Forty Years at the Criminal Bar, page 28.
- 98.
The Court of Criminal Appeal was established by the Court of Criminal Appeal Act 1907; rights to appeal to it, either against conviction or sentence, were given to those convicted on indictment.
- 99.
G.W. Keeton, Harris on Advocacy, Stevens and Sons, 1943, page 10.
- 100.
See Chitty, Practical Treatise on Criminal Law, 1st Edition 1816, pp. 168–304.
- 101.
For some examples see David Bentley, English Criminal Justice in the Nineteenth Century, Hambledon Press, 1998, page 135.
- 102.
Richard DuCann, The Art of the Advocate, Penguin Books, Revised Edition, 1993, page 93.
- 103.
See The Times leader, 31st December, 1841.
- 104.
Section 24.
- 105.
Section 25.
- 106.
Section 1.
- 107.
Sections 4 and 5.
- 108.
It was not, however, until the Indictments Act 1915, that prolixity of indictments was addressed.
- 109.
Criminal Procedure Act, 1865, Section 3.
- 110.
See Leslie Blake, Famous cases: R v Muller – The nature of circumstantial evidence, Estates Gazette, October 14th, 1995.
- 111.
Two years later, in R v Exall (1866) 4 F&F 922, Lord Chief Baron Pollock, most probably remembering the intricacies of Muller’s case, famously likened circumstantial evidence to “a rope of several cords”: “One strand of the cord might be insufficient to sustain the weight, but three stranded together may be of sufficient strength. Thus it may be in circumstantial evidence  – there may be a combination of circumstances, no one of which would raise a reasonable conviction or more than a mere suspicion; but the three taken together may create a conclusion of guilt with as much certainty as human affairs can admit of”.
- 112.
In the years after 1660, the number of capital offences increased from about 50 to around 160 in 1750 and rose further. See W R Cornish and G de N. Clark, The Era of the Bloody Code, Law and Society in England 1750–1950, Sweet and Maxwell, London, 1989, pp. 544–568.
- 113.
W R Cornish and G de Clark, ibid, page 564.
- 114.
David Bentley, English Criminal Justice in the Nineteenth Century, Hambledon Press, 1998, page 279.
- 115.
Dr. Phil Handler, Penal Reform and Trial Practice in England, 1808–1861. Paper delivered on 6th February, 2008 at the Institute of Advanced Legal Studies, London.
- 116.
Interview with Dr. Handler held on 6th February, 2008.
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Watson, A. (2019). Victorian Advocacy: Emotion, Melodrama, Floridity and Juries. In: Speaking in Court. Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-030-10395-8_4
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