Legal History

The adversary system of trial, now the defining feature of Anglo-American criminal procedure, developed late in English legal history. For centuries, defendants were forbidden to have trial counsel. Prosecution counsel was allowed but seldom used. The criminal trial was meant to be a lawyer-free occasion at which the defendant could hear the accusing evidence and respond to it in person. The transformation from lawyer-free to lawyer-dominated criminal trials happened within the space of about a century, from the 1690s to the 1780s. This book explains how the lawyers captured the trial. In addition to conventional legal sources, the book draws upon a rich vein of contemporary pamphlet accounts about trials in London’s Old Bailey. The book also mines these novel sources to provide the first detailed account of the formation of the law of criminal evidence. Responding to menacing prosecutorial initiatives (notably reward-seeking thieftakers and crown witnesses testifying to save their own necks), the judges of the 1730s decided to allow the defendant to have counsel to cross-examine accusing witnesses. By restricting defense counsel to the work of examining and cross-examining witnesses, the judges intended that the accused would still need to respond in person to the charges against him. But defense counsel manipulated the dynamics of adversary procedure to defeat the judges’ design, ultimately silencing the accused and transforming the very purpose of the criminal trial. Trial ceased to be an opportunity for the accused to speak, and became instead an occasion for defense counsel to test the prosecution case.

In this book, the disappearance of Moll Flanders, and her supercession in the annals of literary female offenders in the realist tradition by heroines like Tess of the d'Urbervilles, serves as a metaphor for fundamental changes in ideas of selfhood, gender, and social order in 18th and 19th Century England. Drawing on law, literature, philosophy, and social and economic history, the book argues that these broad changes underpinned a radical shift in mechanisms of responsibility-attribution, with decisive implications for the criminalization of women. This work explores the meaning of key social concepts such as agency, identity, selfhood, responsibility, rights, truth, and credibility through a wide range of complementary sources and practices. It illuminates their fundamental dependence on institutions which develop unevenly across the various interlocking spheres of social space. It focuses in particular on the question of how the treatment and understanding of female criminality was changing during the era which saw the construction of the main building blocks of the modern criminal process, and of how these understandings related in turn to broader ideas about sexual difference, social order and individual agency. This book tells the story of the shifting relationship between informal codes of norms such as the ‘cult of sensibility’ and the formal system of criminal justice, and of the impact on women and on understandings of femininity of these complementary systems of discipline.