Petrach detested lawyers. The story of his experience of law is familiar. In 1316 Petrarch, then twelve years old, was sent by his father to study law, first in Montpellier, then in Bologna, the oldest center of Roman law studies in Europe. Bologna entranced him in some ways; there were great law teachers there, he latter wrote, who were like the ancients themselves returned to life. Nevertheless, if he looked up to some of his teachers, his studies in Bologna taught Petrarch to despise the general soullessness and avarice of fourteenth-century lawyers. Lawyers, he later wrote, cared nothing for antiquity and everything for money: to them “everything is for sale.” It was not, he assured readers of his Epistle to Posterity, that he found the subject too difficult. On the contrary, “many asserted that I would have done very well if I had persisted in my course. Neverthesless I dropped that study entirely as soon as my parents' supervision was removed. Not because I disliked the power and authority of Roman law, which are undoubtedly very great, or its saturation with Roman antiquity, which I love; but because men, in their wickedness, pervert Roman law when they employ it.” Appalled by what he had seen, he gave up law for more honorable pursuits.

My subject is the story of the entry of lawyers into the English criminal courts and their impact on trial procedure. Until the eighteenth century lawyers played little part in the trial of felonies in England—in the trial, that is, of those accused of the most serious offenses, including murder, rape, arson, robbery, and virtually all forms of theft. Indeed, the defendants in such cases were prohibited at common law from engaging lawyers to act for them in court. In the case of less-serious crimes—misdemeanors—defendants were allowed counsel; and those accused of high treason, the most serious offense of all, were granted the right to make their defense by counsel in 1696. But not in felony. Accused felons might seek a lawyer's advice on points of law, but if they wanted to question the prosecution evidence or to put forward a defense, they had to do that on their own behalf. The victim of a felony (who most often acted as the prosecutor in a system that depended fundamentally on private prosecution) was free to hire a lawyer to manage the presentation of his or her case. But in fact few did so. The judges were generally the only participants in felony trials with professional training. They dominated the courtroom and orchestrated the brief confrontation between the victim and the accused that was at the heart of the trial.

The penal colony of New South Wales was founded in January, 1788, with a population of convicts, military people, and a few civil officers. The settlement displaced one of the oldest cultures on earth, as English law failed to recognize that the Aborigines had any right to the land they had occupied for 40,000 years. On their first night ashore the women convicts were greeted by mass debauchery that deserved to be recorded by Hogarth, all under a heavy thunderstorm.

Two generations of legal historians have debated the question of the reception and evolution of common law and equity in England and America by jurists of the seventeenth, eighteenth, and nineteenth centuries. Briefly, one school argues that jurists of these years employed a “doctrinal method” to discover, through deduction, the principles of the law in a particular case. Such a jurist, in the words of the late Lon Fuller, “does not consider that it is the primary function of judges or legal scholars to weigh the practical consequences of deciding a particular case one way or the other. Rather [he] regards them as having a purely deductive function. The starting point for the deciding of any case is to be found in certain premises dictated by the nature of law and legal relationships. Each relationship or transaction has its ‘essential nature.’”