IN THE STACKS
Justice Denied in Plain Sight
“I have the honour to be an Old Bailey Hack.” So spoke Horace Rumpole to Guthrie Featherstone, Q.C. “At which point we turned up into Newgate Street and there it was in all its glory, touched by a hint of early spring sunshine, the Old Bailey. “Terrible things go on down the Bailey — horrifying things.” Charles Moore, age 16, indicted for breaking and entering on Aug. 27,1834, and stealing a watch and several coins. Guilty. DEATH. Robert Kirby, age 19, indicted for breaking and entering on Jan. 13, 1835, and stealing a waistcoat, a pair of trousers, two pillowcases, four petticoats and an apron. Guilty. DEATH. From 1834–35, over a period of six sessions consisting of six days each, 49 prisoners received the death sentence and 679 other prisoners were tried, most of whom were found guilty and “transported” to another country. Characteristic of this group was Robert Durham, age 10, who was indicted for stealing four pounds of pork on Jan. 23, 1835, found guilty and “transported” for seven years.
Lady Justice atop the Old Bailey in London
How did our professional forebears achieve such efficiency in the dispensation of justice? They minimized the role of counsel. A majority of cases were tried without counsel for either the prosecution or the defense. Defense counsels were excluded from pretrial hearings, denied copies of witness depositions given before magistrates and not given a copy of the indictment until trial. In
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felony cases, defense counsels were prohibited from addressing the jury and prosecuting counsel and, as a matter of customary noblesse oblige, refrained from making opening statements. The prevailing attitude of the Bar was articulated by defense counsel James Harmer in 1835 in testimony before the Criminal Law Commissioners against the reform Prisoners’ Counsel Bill: “The generality of the profession are of the opinion that counsel ought not to be allowed to speak for a prisoner and that the practice would be injurious to the accused.” The “silks” of the Bar regarded the Old Bailey as a forum for “dishonest hacks,” whose ruffianism, according to historian J.R. Lewis, occasionally surpassed that of the prisoners. Perhaps the Old Bailey barristers took their cue from members of the bench, who were described in 1834 by the Monthly Law Magazine as “bad in manners, bad in temper, bad in law and bad in English.”
“For the doomed, the cold light of day soon turned dark.” Following each session, those unfortunate souls to be punished by death emerged from Newgate Prison in London to the sound of the tolling bells of the Church of St. Sepulcher, were carted down Newgate Street and hung in the Old Bailey courtyard. For the doomed, the cold light of day soon turned dark. Crowds assembled during the hours preceding the death walk, and their unruly behavior elicited this comment from Charles Dickens: “I believe that a sight so inconceivably awful as the wickedness and levity of the crowd collected at the execution this morning could be imagined by no man.” Perhaps not, but if you wish to experience human nature in all its agonizing drama go online to oldbaileyonline.org/ or peruse the 19th Century Old Bailey sessions trials available in print in the Willamette Law Library. Indeed, “Terrible things go on down the Bailey — horrifying things.” And all in plain sight.