Engines of Truth

Front matter

ENGINES c= of e

TRUTH

Producing Veracity in the Victorian Courtroom

Part Two

4. The Queen’s Proctor: An Inquisitorial Experiment 143

5. Adultery, Sex Offenses, and the Criminal Evidence Act of 1898 181

Notes 211

Index 259

Acknowledgments

THIS BOOK INITIALLY TOOK SHAPE at Yale University, where I was fortunate to attend classes at the intersection of York and Wall Streets, the literal coming together of a world-class history department and a law school unique for its critical self-awareness and intellectual vibrancy. Without that happy coincidence and the community of scholars and visitors it attracted, this project could not have happened. I am very grateful for both the legal history program at the Yale Law School and the broad-minded approach of the Yale History Department. Law and history may seem to occupy two independent intellectual universes, but at Yale the physical distance between them was less than a stone’s throw, and the conceptual distance shrank markedly as a result. This book is the product of the climate of broad-based intellectual curiosity and questioning this proximity fostered.

At Yale, I benefited from the instruction of Mirjan Damaška, George Fisher, Robert W. Gordon, Laura Kalman, John Langbein, Jerry Mashaw, Reva Siegel, and James Whitman at the Law School; and Linda Colley, Geoffrey Parker, Jonathan Spence, Frank M. Turner, and David Underdown in the History Department. Rogers Smith in the Political Science Department encouraged and mentored me as a teacher of legal history to undergraduates. Bob Gordon and Frank Turner also served as the co-advisors of my dissertation research. It is an enduring regret for me that I am not able to give Frank a copy of this book. He, and Graham Hovey, who encouraged me at a very early stage to write and to think about history on a global scale, both passed away before this book’s publication. Each of them left a permanent mark on the text that follows, which is therefore dedicated to their memory.

One of the wonderful things about studying legal history at Yale was the cohort of students interested in that topic during my time there. We x Acknowledgments truly learned as much from each other as from our readings. There were many fine scholars, both in the joint program in law and history and also among my colleagues on the Yale Law Journal and the Yale Journal of Law & the Humanities. Late-night conversations with my fellow students, as we struggled to pin down references and citations, shaped the intellectual foundations of this book.

Financially, the research for this book was made possible by awards from the Truman Foundation, the Mellon Foundation, the Yale Graduate School, and a travel grant from Iowa State University. The law firm of Debevoise & Plimpton also supported my research indirectly, as did the Yale Law School’s COAP repayment program. At the University of Iowa, I benefited from the research help of a number of wonderful student assistants and library employees.

Research on this topic would not have been possible without the superb collections and knowledgeable staff of the India Office Collection at the British Library, the British Library Newspapers at Colindale, and the Public Records Office materials held at the National Archives in Kew. I am also indebted to the marvelous collections of historical legal materials at the Yale Law School library, the University of lowa Law School library, and the Institute of Advanced Legal Studies in London.

I am grateful to the editors and readers at the Yale University Press who have provided helpful suggestions over the course of the development of this manuscript. Chris Rogers, Erica Hanson, and Dan Heaton have been remarkably supportive of my work over this book’s long development, and Jessie Dolch was a very effective copy editor.

Ultimately, however, family and an array of furry creatures have spent the most time with this book project. Mocha the rabbit and dogs Suley, Dervish, and Djinn have contributed nothing to the content of this book but have provided ample distraction and occasional note-stealing services. John Monroe, my husband and partner in crime, has been there through the thick and thin of this project. His assistance has been invaluable, and his ability to remain interested in the follies of an array of nineteenth-century characters has kept this endeavor going. I cannot overstate my debt of gratitude to him.

Engines of Truth

Introduction

CHARLES ALLEN WAS UNLUCKY. In1850, he testified fora friend in a case that grew out of a road accident. A brougham driven by a man named Haynes allegedly ran up against a pony-chaise and caused two pounds, eighteen shillings in damage. The owners of the chaise sued for damages, and Allen testified that in fact no collision had occurred. Rather unconvincingly, he suggested that the damage had been caused by the pony-chaise having been backed into a water tub. The County Court judge hearing the case ignored Allen’s testimony, awarded damages to the plaintiffs, and committed Allen, still a teenager, on perjury charges. At Allen’s trial, the prosecution argued that Allen had lied in order to prevent Haynes, apparently a friend, from losing his job. The jury convicted Allen, and, despite his youth, the judge sentenced him to seven years’ transportation.' Harriet Ricketts fared little better. In 1885, she petitioned for divorce from her husband, William, citing his cruelty, adultery, and desertion. Although she was successful before the Divorce Court, Harriet did not receive a divorce because her case attracted the attention of the Queen’s Proctor, a Victorian official charged with discovering falsity in divorce cases. In a separate proceeding, Harriet had to defend herself against William’s accusation that she had committed adultery with Silas Beasly. If petitioners for divorce had themselves committed adultery, their petitions were automatically rejected. Harriet responded that since their separation, William had repeatedly sought her out and verbally abused her at her workplace. In order to hide from him, she claimed to be married to Beasly when she gave a statement to the police about an unrelated traffic accident. Harriet denied any relationship with Beasly and contended that she used his name only because she was afraid her husband would discover her whereabouts.

Her word was not deemed sound enough to outweigh the Queen’s Proctor’s charges. The court denied her divorce petition, leaving her married to William.”

Charles’s and Harriet’s ill luck was a matter of bad historical timing. Had they been caught lying in court half a century earlier or later, they likely would have gone unpunished. Late eighteenth- and early nineteenth-century courts did little to prosecute perjury, even though judges regularly complained about its prevalence in their courtrooms.’ Similarly, by the end of the nineteenth century, an indifference to perjury had returned, and prosecution of it was effectively restricted to a narrow range of cases. By 1898, the Home Office described perjury by criminal defendants as a “not very serious matter.’ But courts in the mid-nineteenth century approached the question of truth-telling with unprecedented seriousness and adopted an array of innovative strategies to guarantee veracity in trials. Both Charles and Harriet had the misfortune to testify in this unusual era of experimentation.

This book explores the novel strategies for the production of truth implemented in law courts during this period. Mid-nineteenth-century jurists refused to content themselves with the “incoherence” of earlier trial practice, which largely sought to avoid the problem of mendacity by prohibiting those witnesses thought most likely to lie from testifying and placing those who did testify under oaths considered to bind their consciences.” Instead, these Victorian jurists responded to parliamentary reforms that allowed the participation of an ever-growing number of witnesses by adopting new ways of controlling the veracity of testimony.

Initially, they attempted to deal with the problem of perjury by recourse to the criminal justice system. A brief period of vigorous prosecution of suspected perjurers like Charles Allen was then followed by a retrenchment and a turn to the legal profession as the best defense against perjury. Cross-examination, initially reviled for the way in which it seemed to depend on competitive word-twisting rather than a serious concern for the truth, came to supersede perjury prosecutions as the primary means of guaranteeing witness veracity; its triumph owed much to the way in which barristers successfully redefined it as a respectable forensic technique, characterized by gentlemanly restraint and subject to professional norms. The growing confidence in cross-examination that accompanied the steady rise of the legal profession’s prestige helped set the stage for the ultimate lifting of the last major testimonial restriction in the 1898 Criminal Evidence Act, which allowed criminal defendants to testify. This last step, which itself emerged from a set of complicated factors, some legislative, some more broadly social, indicates just how reconciled Victorians eventually became to the possibility of witness deceit.

Nineteenth-century innovation in this area was even more pronounced outside of the traditional common-law courts. In new judicial contexts, such as courts in the colonies or the newly created Divorce Court in London, the pursuit of truth could take extreme forms. Perjury in British India, for instance, was punished by tattooing the sentence “I am a perjurer” on the offender’s forehead, a practice thought to translate the British concern with veracity into indigenous terms. And as we saw with Harriet, an inquisitorial Queen’s Proctor was grafted onto the common-law system in the Divorce Court. Both of these examples are notable for the willingness they reveal among jurists to break radically with established precedent. Innovation, here, was a telling mark of anxiety in the face of relations of power—man and woman, state and subject, colonizer and colonized— fraught with contradictions and awkward conflicts between the clear principles of the law and the messy realities of particular social interactions. It is worth noting, for instance, how ambivalent even the Queen’s Proctor himself felt about forcing estranged couples to stay married, and how few Judges in India had the stomach to order actual perjurers tattooed, even as they professed to accept the validity of the sanction.

Given these profound contradictions and ambivalences, it perhaps comes as no surprise that many of these attempts to curb perjury failed. Their failure, however, is itself an important chapter in the history of the common-law trial. The various experiments discussed in this book marked the outer boundaries of innovation in trial practice. As such, they reveal the extent to which the modern common-law trial is a product both of the compromises Victorian reformers struck and of the lessons they learned from failed experiments. The Victorian trial, therefore, should be seen as a product of contingent institutional solutions shaped not only by the internal dynamics of the law, but also by practical exigencies and contemporary attitudes. To this end, where necessary, my analysis ranges somewhat more widely than is typical of most works of legal history, considering newspaper accounts of cases, novels, and works of psychology, among other things; my goal in doing so is to reveal the complex connections between the law and the historical context in which it was taking shape. The law during the Victorian period, as we will see in the chapters that follow, was not a separate world developing in isolation from the rest of society, but it was also not a simple reflection of broader cultural trends; instead, it was to some degree both things, often in tension with one another.

Constructing Sincerity

The Victorians, as many scholars have noted—and as Oscar Wilde satirically observed — deeply valued earnestness. Samuel Smiles, author of best-selling advice manuals such as Self-Help and the most famous voice of Victorian earnestness, placed sincerity at the top of the list of virtues: “loyal adherence to veracity,” he wrote, was the most prominent aspect of character. But this earnestness, while universally recognized as important, is nonetheless little understood by historians. More than fifty years ago, Walter Houghton noted both the centrality of earnestness to Victorian culture and the paucity of scholarly research on the topic: “The one thing . . . which every schoolboy knows about the Victorians is that they were earnest. But what is meant and why they were is less easy to say.”’ For Houghton, Victorian earnestness was primarily a product of the Evangelical movement in the Church of England, and indeed Evangelicalism provided a kind of unstated moral baseline that shaped both the arguments legal reformers made and their sense of which problems were most urgent. Outside of Evangelicalism, many other nineteenth-century thinkers came to stress the importance of earnestness and sincerity, including John Henry Newman, Thomas Arnold, and Thomas Carlyle.* This emphasis on earnestness was a backlash against what many of these writers saw as eighteenth-century complacency — against the frivolity and inconsequentiality of “old leisure” and against the easy assumptions of what the Evangelicals attacked as “nominal religion.” Sincerity had a strong moral aspect: truth was often most highly valued as a sign of good character, rather than as an end in itself.” This conception was particularly marked in discussions of India, which made honesty into a veritable cornerstone of British national identity, despite what we will see were quite pronounced anxieties about metropolitan truthfulness in such matters as poaching, divorce, and sexual scandal.

As this contradiction between colonial self-image and pervasive doubt indicates, Victorian attitudes toward lying were more complex than they might seem at first glance.'! This complexity was particularly clear in the courtroom. Lying in the courts was among the least ambiguous of transgressions: it violated the state’s law, the religious imperative of the oath, and cultural strictures against dishonesty. Yet even in the context of juridical deceit, Victorians found ambiguities. Although Evangelicalism provided a clear statement of the culpability of all lies, Victorians still sought a more complicated relationship with truth-telling. Determining which sorts of lies were actually criminal in nature, and which could be dismissed as expected, albeit regrettable, deceit on the part of women and non-English and lower-class individuals, was an evolving project throughout the nineteenth century. Similarly, judges and juries vacillated in their evaluations of the underlying motives prompting deceit. Both the identity of the liar and the type of lie mattered. Such qualifications became increasingly important as the Victorian entente with lying—the tacit acceptance of a wide variety of courtroom lies— expanded over the course of the century. These accommodations, however—at least when viewed from the jurist’s perspective—were not signs of a willingness to accept moral ambiguity or playful, Wildean irony.’ Instead, they were conservative in nature and tended to reinscribe social and sexual boundaries, for instance, by redefining perjury as a lower-class offense or providing respectable defendants an opportunity to defend themselves against scandalous accusations.

This book, therefore, paints a fuller picture of Victorian earnestness by shifting the focus to the social sphere of the courtroom and the legal system. Victorian earnestness, it argues, was negotiated and manufactured in the courtroom as much as it was in the catechism. Truth-telling in the courts was an active area of concern, and its boundaries were constantly disputed and redrawn. The courts participated in the nineteenth-century process of accommodating sweeping religious interdictions to the complex reality of social interaction. At the same time, the courts also provided leadership in the rhetorical condemnation of falsity in all its forms, even when the activist Evangelical beliefs underlying the condemnation had faded from public view in other contexts. Looking at the Victorian experiments with producing juridical truth, then, supplies a dual perspective: courts reflected social beliefs in their determination of the relative culpability of lies and liars while at the same time creating an internally consistent institutional backdrop for those beliefs.

The Law’s Muscular Moralism

Cultural anxieties about sincerity emerged at a time when the legal system was increasingly attentive to the question of truth-telling. Several developments brought the issue oflying in the courtroom to the fore, including increased public interest in trial narratives and controversies regarding the role of defense counsel. Victorian experimentation with techniques for eliciting the truth in the courtroom therefore depended on the coincidence of a pervasive extralegal reverence for sincerity, changes in trial practice, and the law’s newfound “muscular moralism.” Just as muscular Christianity became a Victorian ideal, active enforcement of moral duties in the courtroom also became an important ambition for legal reformers."

To understand how these factors came together, it is important to remember that the early nineteenth century saw a shift in the public face of the law, which was reflected in newspaper accounts of real trials and literary accounts of fictional ones. With the reduction of the number of hanging offenses and the movement of the site of execution out of the public eye, the public’s main exposure to the legal system now came from reports of trials rather than from the spectacle of the hanging tree. Newspapers and the novel replaced the older genre of criminal broadsheets and biography."

At the same time, procedural changes, including the lengthening of previously lightning-fast criminal trials and increased participation by counsel, restructured the trial as a competition between multiple narratives.” The result of these changes was to inculcate new habits of reading for both fictional and real trial narratives. Popular accounts of real trials and the growing genre of “Newgate” novels, which centered on the trial as the climactic moment in a fictional criminal biography, invited audiences to judge the truthfulness of competing narratives.'° Assessing credibility became both a public issue and a popular pastime.

Other changes in the law also served to heighten concern about truth in the courtroom. The 1836 Prisoners’ Counsel Act allowed counsel to address the jury directly and make opening statements. This expanded role that barristers thus played triggered fears that they would abuse their role and use their command of rhetoric to deceive. Albany Fonblanque, a journalist for the radical weekly the Examiner, was among the most strident critics of the new law.'’ Fonblanque saw the ethics of advocacy as at best indifferent to the discovery of truth and often actively opposed to it: “we have been told, on high authority,” he wrote, “that the advocate belongs, body and soul, to his client; that he is bound to make truth appear untruth, and untruth appear truth.”'* In this case, the barrister’s growing role in the construction of narrative in the courtroom threatened to undermine the very cause of truth that lawmakers sought to advance, a problem it would take commentators and jurists the rest of the century to resolve— or at least to accept as unresolvable.

The mid-Victorian period also saw a dramatically increased willingness to use the courts to extend legal discipline to moral issues previously thought to be outside the scope of the law.'? W. L. Burn first pointed to the mid-Victorian phenomenon of “increased readiness on the part of the State to apply sanctions against certain errant types of ‘individual.’””° Martin Wiener explores one such expansion: the Victorian campaign against violence directed at women. In prosecuting wife-beaters, rapists, and murderers, Victorians used the state’s power to promote and impose religiously derived ideals of self-discipline, orderliness, and nonviolence.”! The imperial context provided additional motivation for these efforts. If the British were to justify their imperial dominion through a discourse of pacification and civilization, it behooved them to be exemplars of nonviolence at home.”

This judicial activity against masculine violence was part of a larger trend that Wiener has chronicled extensively. Law reform served to promote a program of moral reform.” In particular, it seemed to bolster notions of personal responsibility: “A crucial supposition underlying early Victorian law reform,” Wiener writes, “was that the most urgent need was to make people self-governing and that the best way to do so was to hold them sternly and unblinkingly responsible for the consequences of their actions.”?4

Legal prohibitions, Victorian jurists believed, should track moral distinctions precisely in order to form the public character.” Reformers — many of whom were motivated by religious concerns — thereby showed a surprising willingness to use state power to enforce the dictates of the conscience.

A similar optimism about the state’s ability to discriminate between truth-telling and deceit, and innocent debtors and criminals, was apparent in the bankruptcy reforms of the same period.”° Legislation in 1849 instituted a three-tiered system designed to differentiate between those who were unfortunate victims of circumstances beyond their control, those who were improvident, and those who were dishonest. Bankrupts deemed to be dishonest received third-class certificates in order to alert any future business associates to their history.” Markham Lester attributes this fervor for moral distinctions to the influence of Evangelicalism, noting that the 1849 act established a system by which distinctions could be made between moral and immoral businessmen. Law reformers were able to draw on Evangelical sentiment in legislation that also satisfied utilitarian goals.”® This recourse to Evangelical ideas was combined, moreover, with an increased confidence in the fact-finding capacities of tribunals.

The attempts to bring the power of the state to bear upon false testimony described here, particularly in its early stages, reflected many of the same concerns. The influence of Evangelical ideas about the culpability of all lies — great and small—and the importance of punishment is clearly visible in these various attempts to resolve the problem of deceitful testimony.

As with bankruptcy, however, mid-nineteenth-century law reformers were not content to leave the deterrence and punishment of the violation of a judicial oath to an individual’s conscience; instead, they sought to enlist the state—through vigorous prosecution of perjury—in the enforcement of a moralized law. The legal innovations undertaken in India and with the Queen’s Proctor in England show a similar conception of law as a means of inculcating moral norms. With the failure of these experiments, and the comparative success of cross-examination, reformers turned to other strategies, setting the stage for the emergence of present-day trial practice. gies, g g8 g P y P

Engines of Truth

The title of this book is borrowed, with a twist, from one of the most famous phrases in American jurisprudence. Writing in 1904, Northwestern University Law School dean John Henry Wigmore declared that cross-examination was “beyond any doubt the greatest legal engine ever invented for the discovery of truth.” Cross-examination was, to Wigmore’s mind, even more important than trial by jury and represented Anglo- American law’s “great and permanent contribution” to trial procedure.”® It was a characteristic Wigmore declaration. William Twining notes that he was “apparently untroubled by doubt or the elusiveness of reality” and therefore “said what he had to say clearly, systematically and forcefully.”*° Wigmore’s reputation as a scholar and the emphatic nature of his language contributed to its importance and longevity in U.S. law. His description of cross-examination as the “greatest legal engine” for truth continued to appear in Supreme Court analyses of cross-examination throughout the twentieth century.*!

Wigmore’s uncritical enthusiasm for cross-examination reveals the close connections between British legal thought of the nineteenth century and contemporary American evidence law. Born in 1863 and well-schooled in nineteenth-century British legal scholarship, Wigmore was affectionately referred to by colleagues as “the last mid-Victorian.”** Trained by James Bradley Thayer at the Harvard Law School, Wigmore was familiar with English commentators on the law of evidence, including Thomas

Starkie and Jeremy Bentham. In his Treatise, Wigmore provided extensive quotations from both Bentham and Starkie, including Starkie’s 1824 description of cross-examination as “one of the principal tests which the law has devised for the ascertainment of truth.”*? Wigmore, therefore, provides a bridge between the period of this study and contemporary U.S. law as well as a parallel example of the progression from viewing cross-examination as one test among several to seeing it as “the greatest” test. The evolution from Starkie’s 1824 statement to Wigmore’s 1904 one also reflects a key theme of this book: the story of the burgeoning importance of cross-examination.

But this is not just a story of deepening emphasis on a single test for truth. The twist in the title—“engines” of truth rather than a single engine— represents one of this book’s major points. During the Victorian era, there was a period of experimentation with a variety of engines for the production of truth. Cross-examination may have won out in the end, but it was not the only candidate under consideration. For Victorians, learning to live with the lie involved an evolution from religious and statist to professional solutions to the moral problem of deceit. Early and mid- Victorian reformers turned to the state to police perjury in England, while searching for a religious sanction against perjury in India; but by the end of the century, responsibility for detecting lies rested largely with the legal profession—a power that its members zealously guarded against infringements by the government in the person of the judge. Somewhat paradoxically, as we have seen, the Victorian period also saw an episode of relying on a continental-style inquisitorial judge to police perjury in the Divorce Court. In short, many “engines” were being experimented with during the nineteenth century, and various methods of managing mendacity in the courtroom helped to develop a clearer sense of the complex interaction of law and practice that shaped the Victorian legal system.

The first part of this book is devoted to experiments made to ensure or police veracity within the context of the common-law trial. Chapter 1 investigates the midcentury turn to perjury prosecutions as the main guarantor of testimonial veracity and the prosecution of perjurers over the ensuing decades, revealing how a ubiquitous offense came to be thought of as a lower-class crime and how prosecution came to be limited to offenders in a narrow range of cases. The chapter surveys perjury prosecutions in England and Wales from 1835 through 1900, using a systematic sampling of otherwise unrecorded accounts of trials in local newspapers to determine what types of lies and what types of liars were punished. It also looks at the law reformers’ high hopes for perjury prosecutions and the institutional limitations that ultimately dashed those hopes, transforming perjury prosecution into a marginal phenomenon. Chapter 2 looks at the steady augmentation of the barrister’s role as guarantor of accuracy. Developments in the law of evidence, shifts in power between barristers and trial judges, and the growing importance of cross-examination all contributed to this process. This chapter follows the rise of cross-examination by investigating the controversies regarding its role and nature that periodically erupted in the popular and legal presses. By the end of the century, cross-examination had assumed its contemporary place as the main protection against testimonial duplicity, a change driven in large part by the professional self-interest of the bar.

The second part of this book looks at experimentation outside the boundaries of the traditional common-law trial in two contexts in which it was thought that witnesses would inevitably lie. Chapter 3 explores the first context— the colonial courts of British India, where British administrators wrestled with their suspicions that they had no ability to discriminate between false and true testimony. Here our story backtracks chronologically to colonial practice in the early nineteenth century and continues through the aftermath of the Indian Rebellion of 1857-58 (also called the Indian Mutiny or Sepoy Mutiny). British administrators went through a variety of expedients, including tattooing on the forehead of the guilty, in a vain attempt to elicit popular indignation against lying. The extensive colonial records preserved in the India Office Library provide the source material for this chapter. Chapter 4 turns to a second context in which lying was thought to be inevitable: the new Divorce Court. Concerns about perjury regarding matters as delicate as adultery prompted the reinvention of the Queen’s Proctor’s role in 1860. Individuals found upon investigation to have lied, like the unfortunate Harriet Ricketts, would be denied their divorces. This chapter relies on the records kept by the Queen’s Proctor’s office during its first twenty-five years, revealing the ways in which cases were selected for scrutiny. It also suggests some reasons for the institution’s ultimate failure, which derived both from moral scruples about the double standard in divorce law and from conflicts generated by the incompatibility of inquisitorial and common-law models.

Chapter 5 draws the two parts of the book together by looking at the passage of the Criminal Evidence Act of 1898, which allowed defendants in criminal cases to testify. The gap of nearly fifty years between its passage and that of the Evidence Amendment Act of 1851 allowing parties in civil cases to testify was, I argue, in large part a byproduct of the reform and experimentation that characterized the Victorian legal system’s approach to the possibility of witness deceit. As such, it brings the process of change charted in the previous four chapters to a close. This final step in the elimination of witness exclusions marked the triumph of cross-examination as the guarantor of veracity in the courtroom, opting for a single engine of truth over multiple ones. Like the various experiments described in the preceding chapters, however, the history of the Criminal Evidence Act also provides an opportunity to investigate the intersection of social factors and legal reform. Accepting the idea that allowing defendants to testify would do something other than open a Pandora’s box of rampant perjury required a set of counterexamples for reformers to find compelling. These came from a few highly publicized cases in which respectable men were accused of crimes so scandalous that the norms of gentlemanly fair play demanded the defendant be given a chance to respond—and created a situation in which legislators and legal professionals could imagine themselves in the place of those accused. The desire of respectable jurists to protect the rights of respectability, therefore, trumped the previously dominant concern that lower-status, uneducated defendants might be tricked into false self-incrimination, preparing the ground for the last major step in the elimination of the old exclusionary system of evidence.

We know much less about the Victorian trial than we do about other facets of Victorian life, a lacuna this research seeks to fill. Earlier periods, in contrast, have been more thoroughly studied. John Langbein’s work has demonstrated the epochal importance of the “lawyerization” of the criminal trial, as rules of evidence and increased participation by counsel transformed the “accused speaks” trial of the seventeenth and early eighteenth centuries.** Allyson May, David Cairns, and Thomas Gallanis have analyzed the evolution of the barrister’s role in the late eighteenth and early nineteenth centuries.” Christopher Allen has explored the factors underlying reforms in the law of evidence during the nineteenth century, with particular attention to the effect of ideas other than Benthamite utilitarian philosophy.*® With the exception of Allen’s work, however, most of these stories conclude in the 1830s, with the passage of the Prisoners’ Counsel Act, or the 1850s, when major changes in the law of evidence in civil cases were made. The recently completed nineteenth-century volumes of The Oxford History of the Law of England add considerably to our understanding of the period, but the monograph literature is still less well-developed than it is for the eighteenth and early nineteenth centuries.°*’