Turning Sharper in Their Own Defense: Criminal Characters and the Rise of the Defense Lawyer in Eighteenth-Century England

Spring 2012

Article 1 of 5

Emily Johnson

Emily Johnson is a senior English major and pre-med pre-professional track candidate at John Hopkins University, with plans to go to medical school in two years. Her critical interests include Shakespeare, Renaissance literature, and feminist/queer literature.

Oliver Goldsmith’s novel, The Vicar of Wakefield (1766), centers around a vicar, Dr. Primrose, and his family, tracing their fall from relative privilege and wealth at Wakefield, their home parish, to a much more modest life on the lands of one Squire Thornhill.  The novel chronicles their myriad adventures and steadily worsening misfortunes that finally give way to a happy culmination in which the vicar’s daughters get married and the family’s wealth is restored.  One of the most disheartening and pitiable calamities the family encounters is the conning and robbery of Moses Primrose, one of the vicar’s sons.  This is closely followed by the swindling of the vicar himself; both crimes are carried out by one Mr. Jenkinson, a known scoundrel in the area.  Goldsmith paints a very distinct picture of Mr. Jenkinson’s history, criminal activities, and assumed repentance, a picture that echoes similar representations in other novels of the time, including Daniel Defoe’s Moll Flanders (1722) and Henry Fielding’s Shamela (1741) and Joseph Andrews (1742). 

This popular novelistic depiction of criminal characters and their life stories paralleled and in some ways reflected the emergence of defense lawyers in the eighteenth-century legal system; it can be argued that the basis of the defense counsel profession actually was in part generated from such swindlers, rogues, and generally illicit persons as Mr. Jenkinson, who were forced, as he tells the vicar, to “turn sharper in [their] own defence” (Goldsmith, 131).  In other words, they were effectively acting as their own counsel by manipulating or even completely fabricating their own narratives, and, consequently, how they were viewed by society in order to remain free and autonomous. 

The Vicar of Wakefield’s Mr. Jenkinson does precisely that upon encountering Dr. Primrose in the same prison to which he himself has been condemned for conning one Mr. Flamborough.  Mr. Jenkinson spins a tale for the vicar, revealing how he became involved in such a life of crime and expressing a (questionable) conviction that he would never have turned to such an existence had he not been driven to it by his circumstances.  “I was thought cunning from my very childhood,” Mr. Jenkinson avers, “[and] at twenty, though I was perfectly honest, yet every one thought me so cunning, that not one would trust me.  Thus I was at last obliged to turn sharper in my own defence, and have lived ever since” (Goldsmith, 130-131).  On close examination, Mr. Jenkinson’s claim of “turn[ing] sharper in [his] own defence” provides an intriguing alternative interpretation, suggesting that Mr. Jenkinson is not in fact a victim of circumstance forced into criminality by society’s prejudice against him, but is instead a crafty and manipulative conman who has actively chosen to remain outside of the law. The turn of phrase Mr. Jenkinson uses seems at first to be simply an indication of how outside forces molded his criminal character; according to the explanatory note, the word “sharper” is a noun meaning “criminal” (Goldsmith, 194, note 131), indicating that Mr. Jenkinson was essentially forced into a predetermined criminal role by society.  However, one can also take a more subversive reading of Mr. Jenkinson’s statement, and interpret him to be asserting that, in order to protect himself from legal action and remain free, Mr. Jenkinson had to become even more clever and quick-witted to keep potential victims from becoming suspicious or wary of him. 

The word “sharper” can be taken as an adjective; thus the adjective form of “sharp” can mean “acute and penetrating in intellect or perception […] intellectually acute, keen-witted, discerning, sagacious” (OED, “sharp”, def. 3a).  Because of this, Mr. Jenkinson’s assertion that he was obliged to become more keen-witted or clever in response to society’s views of him lends a less benign implication to his character, indicating that his unlawful behaviors were a conscious choice rather than a lifestyle he was forced to lead.  Additionally, the word “defence” here can be construed in a more legal sense as “the defending, supporting, or maintaining by argument; justification, vindication” (OED, “defence,” def. 6a); in this light, then, the fact that Mr. Jenkinson has to adapt to society’s negative views of him by becoming “sharper” and more intellectually savvy is taken as a means to defend his character and vindicate his name so that he can continue his “work” without fear of reprisal.  In short, one could argue that Mr. Jenkinson’s transformation into a “sharper” or more cunning individual was driven by his need to change potential victims’ opinions of him in order to both continue his criminal activity and to remain free.  This is very closely related to the kind of work a criminal defense lawyer performs in searching for ways to change the prosecution’s depiction or account of the accused to portray him in a better light, thereby encouraging a decision to acquit him. 

Mr. Jenkinson’s embodiment of both criminal and lawyer is also seen in his interactions with Moses Primrose, the vicar’s son.  Mr. Jenkinson first meets the boy when Moses comes to visit his father in the prison in which he has been incarcerated for failing to pay his annual rent (as a result of yet another calamitous circumstance).  Upon seeing Mr. Jenkinson, Moses immediately recognizes him and recalls his unhappy first encounter with the thief.  Moses here represents both the victim of Mr. Jenkinson’s scheming and a judge or prosecutor, effectively cross-examining Mr. Jenkinson regarding his thought process during the crime:

        “I can’t help wondering at what you could see in my face, to think me a proper mark for deception.” 

“My dear sir . . . it was not your face, but your white stockings and the black ribband in your hair, that allured me. But no disparagement to your parts, I have deceived wiser men than you in my time.” (Goldsmith, 130

Mr. Jenkinson experiences a kind of miniature trial in this exchange, and accordingly takes control of his own defense,deciding effectively to “plead guilty” to his past misdeeds (namely, his conning and robbing Moses): “‘I am in some measure culpable; for I think I see here (looking at . . . Moses) one I have injured, and by whom I wish to be forgiven’” (Goldsmith, 130).  This decision, though initially seeming a true attempt at repentance, should instead be understood as a carefully calculated attempt to gain the Primroses’ forgiveness and reduce their suspicions of him. 

Mr. Jenkinson employs the same strategy he has used before – espousing intelligent-sounding philosophies and aphorisms – to manipulate and to influence the Primroses’ decisions.[1]  He states solemnly that “the traveler that distrusts every person he meets, and turns back upon the appearance of every man that looks like a robber, seldom arrives in time at his journey’s end” (Goldsmith, 130).  In alleging this, Mr. Jenkinson actually performs a complex and tricky maneuver.  This kind of life philosophy at once convinces the vicar and his family of Mr. Jenkinson’s honesty and sincerity – much as his faux-intellectual ramblings earlier convinced the vicar that he was trustworthy – and encourages them to take this piece of advice literally, i.e., to not look suspiciously on suspected robbers (that is, Mr. Jenkinson himself).  Here again, Mr. Jenkinson “turn[s] sharper in [his] own defence,” employing a careful and deliberate strategy to manipulate the Primroses. 

Mr. Jenkinson is not simply repenting here; in fact, it would be contrary to his character to do so.  Instead, his motivations for owning up to his crimes and subsequently helping the Primroses are threefold.  The Primrose family is thrown into chaos when it is revealed that Squire Thornhill has made duplicitous and untoward advances towards the vicar’s daughter, Olivia, and has convinced her to marry and to run away with him.  They seem to have no way to track their daughter down until Mr. Jenkinson reveals that he had been privy (and even accessory) to the squire’s scheme and, consequently, knows where he is hiding.  Mr. Jenkinson here spots an opportunity to get out of the prison; thus his offer to help is qualified by the condition that he be allowed out of jail: “if your honour will bid Mr. Gaoler let two of his men go with me, I’ll engage to produce [one of the culprits] in an hour at farthest” (Goldsmith, 173).  Second, the thief desires leniency of the law regarding those crimes that landed him in prison, which can be entirely determined by the Primrose family’s attitude towards him as a person.  Dr. Primrose’s promise to “‘endeavor[…] to soften or totally suppress Mr. Flamborough’s [the plaintiff’s] evidence […] and as to my evidence, you need be under no uneasiness about that’” (Goldsmith, 126) is indicative of the influence the Primrose family has regarding the outcome of Mr. Jenkinson’s case. 

Finally and probably most importantly, Mr. Jenkinson is in the end always concerned about possible monetary gain.  His offers to help the family increase substantially once the wealthy Sir William Thornhill – the squire’s more worthy and generous uncle – enters the scene to come to the Primroses’ aid as if Mr. Jenkinson intuitively understands that by dint of “the obligations which [he and the Primroses] owe Mr. Jenkinson” (Goldsmith, 166) Sir William will have to repay him.  This is, in fact, exactly what happens.  After Mr. Jenkinson helps track down Olivia and the squire, Sir William gives thanks to the thief, stating “‘all the recompense I can make is to give you her fortune, and you may call upon my steward tomorrow for five hundred pounds’” (Goldsmith, 166).  Thus, Mr. Jenkinson craftily ends up getting exactly what he has been after since he has been introduced as a character in the novel – money – by manipulating his circumstances and the way the other characters view him.  In other words, he successfully changes his story to remain innocent in the eyes of his potential victims.

Mr. Jenkinson’s crafty, casuistic behavior here is by no means an isolated incident.  He is consistently “turn[ing] sharper in [his] own defence,” thinking only of his own interests and how he could potentially benefit from certain situations presented to him.  He admits, for example, that the only reason he decided to double-cross Squire Thornhill while purportedly helping him to deceive and to marry Olivia was so “‘I could prove it upon him whenever I thought proper, and so make him come down whenever I wanted money’” (Goldsmith, 164).  Additionally, when Dr. Primrose refuses to give into Squire Thornhill’s demands regarding his marriage to Olivia, even though doing so would secure the vicar’s release from prison, Mr. Jenkinson once again turns to lies and deception.  He tells the vicar that Olivia has died in order to manipulate the vicar’s actions and decisions (Goldsmith, 165).[2]  In both instances, Mr. Jenkinson shapes his circumstances and deceives others to achieve his own ends; his comfort with manipulation also extends to changing his own narrative – via a change of guise or character – to suit a given situation. 

The clearest example of this is in his “learned gentleman” disguise discussed earlier: costumed in a grey wig and armed with a thick tome as prop, Mr. Jenkinson cuts a venerable figure that impresses Dr. Primrose and influences his decision to bargain with the thief.  When Dr. Primrose much later expresses his astonishment that Mr. Jenkinson’s actual physical appearance is so youthful, the thief admonishes the vicar’s naïveté, stating “‘you are little acquainted with the world; I had at that time false hair, and have learnt the art of counterfeiting every age from seventeen to seventy’” (Goldsmith, 126).  As someone “little acquainted with the world,” the vicar is cast as naïve and idealistic, someone who cannot see that most everyone is familiar with the arts of disguise and concealment.  The implication here is not only that these changes in character represent a common criminal strategy, but that passing oneself off for something one is not – in other words, changing one’s reputation or how one is viewed by others – constitutes a widespread practice in general in society.

This depiction of character as synonymous with one’s (often untrue or undeserved) reputation represents a common theme in the early British novel.  Novels such as Daniel Defoe’s Moll Flanders epitomize the preoccupation with the idea that character as reputation or narrative is completely subjective and easily changed.  As with Mr. Jenkinson, Moll’s constant changes of name and appearance testify to the fact that character as reputation has more meaning than character as true inner nature; character can thus be manipulated since what is important is how one seems and not how one really is.  Reputation and appearance do not actually have to be true; what matters is the semblance, as indicated by Moll’s offhand comment about the feminine necessity of “preserv[ing] the Character of their Virtue, even when perhaps they may have sacrific’d the Thing itself” (Defoe, 110).  Accordingly, character as reputation is based purely on the evidence or hearsay of other people, and can thus be easily shifted and changed.  Both Moll and Mr. Jenkinson do this to present themselves to society in the best possible light; while Mr. Jenkinson occupies himself in feigning repentance for the Primrose family, Moll puts on a façade of innocence in her trial in an attempt to manipulate the judge and jury (Defoe, 224), and later on decides to present to her husband “just as much of [her] Story as [she] thought was convenient” (Defoe, 233).[3]  

Character, then, implies an inherent ambiguity, a doubleness that can be manipulated.  It is at once a part of who a person is and something that can be created to fit a specific set of circumstances; as a result, criminals such as Moll and Mr. Jenkinson seem to be in constant flux, sliding in and out of their varied guises as necessary in order to keep themselves free of the law’s grasp.  Ian Bell, writing on the depiction of crime in Moll Flanders, effectively summarizes the issues at stake: 

The device of concealed identity is a necessary tactic in the genre of criminal fiction […] The criminal is still so heavily entangled in his or her world, that it would be dangerous to reveal all, and so the tale itself becomes a covert, furtive act, thus validating its criminality. (410)

Not only, then, does the criminal himself embody a doubleness, being at once his true self and his assumed character or disguise, but his story – whether documented, as in Moll Flanders, or orally transmitted – also becomes implicated since it too participates in the manipulation of the criminal’s history. 

Lennard Davis also describes the criminal’s inherent double nature and how the structure of the criminal novel itself also reflects this ambiguity.  He claims, like Bell, that criminal narratives necessarily embody a kind of duality: “The criminal’s history serves a double function as both an example of a life to be avoided and an example of a self-scrutiny and repentance to be imitated” (Davis, 108). Davis argues that the criminal novel is doubled at the level of both form and content:

The doubleness of the novel’s theory is quite similar to the doubleness of the criminal’s life.  This similarity, it would seem, deeply implicated novelists in the general illicitness of criminality, not merely because novels depicted scenes of low-life, but because novels were constitutively morally, politically, and theoretically ambiguous. (114)

Novels that took the stories of felons as their prime subject matter were not only illicit because they presented criminal subject matter, but also because they participated in the “very enterprise of fictionalizing, inventing, forging reality, lying.  Novelists not only made up their stories, they also denied that their invented stories were fictions” (Davis, 112-113). 

While Davis speaks specifically about novelists, this idea also gets at the heart of criminality as such.  In continually reinventing themselves, felons add an additional layer of transgression to their already illicit lives; essentially, then, the criminal becomes the “novelist” of his own life. He must construct for himself an entirely new guise and background and submit it as the “true story” in order to remain above suspicion.  Like the novelist, therefore, the criminal is forced to be doubly illicit: he must make up stories while simultaneously presenting them as the truth.  Essentially, in “non-fictionalizing” his own (fictional) narrative, the criminal creates a new character out of himself. 

This inherent double nature, the ease with which the criminal changes his character or narrative, accords with Mr. Jenkinson’s philosophy of “turn[ing] sharper in [one’s] own defence” and closely echoes the way defense lawyers make cases for the accused.  The defense counsel effectively plays on the ambiguity of character because in combating all incriminating conceptions of a defendant’s character, they often present alternative viewings or interpretations of his actions or behaviors to qualify his crimes.  This selective presentation of character carefully crafts a specific narrative out of the accused’s life to better serve his interests, just as Moll Flanders does for her husband and the judges in her trial, or as Mr. Jenkinson does in his dealings with the Primrose family.  In modern times, this is often accomplished via “character witnesses,”[4] who testify “on behalf of a person as to that person's reputation for honesty and morality both by the personal knowledge of the witness and the person's reputation in the community” (USLegal.com).  In The Vicar of Wakefield and Moll Flanders, the felons themselves act in this capacity – they essentially come to embody the entire legal defense counsel – in inducing others around them to believe their carefully crafted narratives of repentance and innocence.

This phenomenon can also be found at the heart of actual criminal biographies during the eighteenth century.  Just like Moll and Mr. Jenkinson, actual felons often left strings of aliases in their wake; these identity manipulations again serve as a means of “turn[ing] sharper in [their] own defence” and evading legal charges.  As the criminal biography of Anne Holland states: 

[T]his was her right Name, tho she went by the Names of Andrews, Charlton, Edwards, Goddard, and Jackson, which is very usual for Thieves to change them, because falling oftentimes into the Hands of Justice and as often convicted of some Crimes, yet thereby it appears sometimes, that when they are arraign’d at the Bar again, that it is the first Time that they have been taken, and the first Crime whereof they have ever been accus’d. (Smith, 313)

In documenting each step along the felon’s illicit path, these criminal biographies become almost novelistic themselves; the important focus is not necessarily the crimes but rather the life stories of the offenders – in other words, their depiction as characters.  Davis neatly summarizes this phenomenon: “There seems to have been something inherently novelistic about the criminal, or rather the form of the novel seems to demand a criminal content” (Davis, 108).  Both in novels and in real life, criminals were playing on the doubleness of character, shifting their identities and manipulating their narratives to influence how they were viewed and to avoid punishment or conviction.  

Looking toward a person’s background and life story as a way to ascertain guilt or innocence, then, becomes an essential piece in any legal defense strategy.  Whether in literature of the eighteenth century or in actual proceedings at the time, criminals were searching for ways to adapt their narratives to fit each new circumstance, to warp their personal histories to facilitate claims of innocence.  As The Vicar of Wakefield’s Mr. Jenkinson demonstrates, “turn[ing] sharper in [one’s] own defence” largely proves successful for the criminal in question, and therefore the need for formal legal representation seems largely unnecessary.  What, then, changed?  From whence did the need for defense counsel arise?  A possible answer can be found in turning again to Mr. Jenkinson and to The Vicar of Wakefield’s depiction of criminality.  As previously discussed, Mr. Jenkinson’s efforts to deceive the vicar and his family, hoodwinking them into believing he has truly repented of his criminal actions, are ultimately successful; however, it seems merely due to a fortunate series of circumstances – including the vicar’s abnormal credulousness and naïveté – that anyone takes Mr. Jenkinson at his word, especially considering his past duplicity.  No one thinks twice or so much as voices a single doubt about Mr. Jenkinson’s purported altruism – not even Sir William Thornhill, the one character to see through the squire’s duplicity and thus is arguably the novel’s most discerning character. Instead, once Mr. Jenkinson pours out his (manipulated) life story, everyone is prepared to automatically (and unrealistically) take him at his word.

The most pronounced instance of the unquestioned acceptance of Mr. Jenkinson occurs in his initial encounter of the Primrose family in prison.  After Dr. Primrose recognizes Mr. Jenkinson and confronts him about his crimes, Mr. Jenkinson affects a repentant attitude that the vicar immediately complies with, stating that he will “endeavour […] to soften or totally suppress […] evidence [against Mr. Jenkinson]” (Goldsmith, 126).  The vicar seems suddenly to forget that Mr. Jenkinson is an adept con artist who has already conned the Primrose family on two separate occasions; rather unrealistically, the vicar entertains no doubtful thoughts at all about Mr. Jenkinson’s repentance and offers to help.  In agreeing to suppress evidence against Mr. Jenkinson – a move that would effectively change Mr. Jenkinson’s narrative and help exonerate his character – the vicar almost assumes a defense counsel role; however, because the vicar does not have a position of authority from which to make convincing claims about the criminal, the vicar never rises past a “character witness” role. 

Fortunately for Mr. Jenkinson, all the other characters are similarly inclined to accept blindly the criminal’s sudden turn to good once his story is told; however, this strange moment in the novel suggests that not all offenders were as easily believed.  The unquestioned acceptance of Mr. Jenkinson’s new narrative in a novel that teeters on the border of satire brings these issues to the forefront.  In order to convince society of the truth of a criminal’s narrative, then, a more reliable and authoritative source was needed – a source that would provide credibility for the accused’s story.  The Vicar of Wakefield thus opens up a kind of space for the emergence of this type of character, which at the time became filled with the concurrent rise of the criminal defense lawyer.

The structure of a normal criminal trial in the seventeenth and early eighteenth centuries did not initially include a defense counsel position.  Trials during this time consisted of the accuser, the accused, a judge and jury, and, in some cases, a prosecutorial solicitor; it was not until the mid-eighteenth century that defense lawyers were permitted on the scene (Langbein, 2).  In fact, during the sixteenth and seventeenth centuries, there existed a formal “prohibition on defense counsel” because society at the time held a “notion that criminal defense was a suitable do-it-yourself activity” (Langbein, 11).  Additionally, judges were known to act in a defensive capacity for the accused, but only to “protect defendants against illegal procedure, faulty indictments, and the like;” they were under no “obligation to help defendants ‘to formulate a defense or to act as [the accuseds’] advocates’” (Langbein, 30). 

Defendants were instead expected in large part to provide their own defensive arguments; indeed, it was a commonly held belief at the time that “the accused was better suited than counsel to respond to questions of fact […] the accused should defend without the assistance of lawyers because the accused would know more about the facts alleged against him than any lawyer” (Langbein, 33).  However, this principle not only removed any possibility of enlisting outside help in a criminal’s defense, but also led to further condemnation of offenders:

[B]ecause the accused conducted his own defense at trial, he necessarily made himself an informational resource for the court . . . the trial procedure put pressure on the accused to speak in person about the charges and the evidence adduced against him . . . even when he has a solid defense, the accused has usually been close to the events in question, close enough to get himself prosecuted. (Langbein, 20-21) 

The criminal was thus doubly damned: he was culpable not only for the actual crime committed but also because, in acting in his own defense, the criminal was forced to provide facts about the situation in question, indicating that he was close enough to it to know about the intimate details. 

The practice of acting in one’s own defense during criminal trials is neatly summed up in Beth Swan’s aptly-named article, “The Felon as Lawyer,” which discusses this phenomenon through analysis of Moll Flanders.  As evidenced throughout her trial scene, Moll must speak in her own defense and thus comes to occupy a dual role – that of criminal and that of defense counsel.  Swan argues that this phenomenon was so commonplace that criminals actually began actively studying the law to help their cases.  According to Swan, “Newgate [prison] itself indirectly provided legal education to prisoners awaiting trial” (Swan, 37) because it provided a space in which “criminals learnt a great deal about the practical aspects of crime as well as the theoretical aspects of the law, such as possible means of defence in court and ways of avoiding the death penalty” (Swan, 41).  For this reason, Newgate was often referred to as “the College” among the English criminal population of the time (Swan, 41) since criminals who were incarcerated there often learned how to perfect their illicit activities and how to successfully prepare their defenses via other prisoners.  Accordingly, Moll – whom Swan terms a “graduate of the Newgate school of law” (Swan, 41) – and Mr. Jenkinson are shown to be extremely well-versed in matters of law.  Moll uses her “precise knowledge of the legal definition of burglary” (Swan, 40) to try to “use the law to subvert itself” (Swan, 42) – in other words, to try to wriggle her way out of a conviction – while Mr. Jenkinson demonstrates his knowledge of the law in offering to help the Primrose family (“Let me know your case, and what has brought you here” [Goldsmith, 131]).  Both criminals thus have ample legal knowledge at their disposal, which helps them to “turn sharper in [their] own defence” and act as their own defense counsel.

The reasoning behind this prohibition on legal counsel for the accused was rooted in society’s fear that a defense lawyer’s cunning arguments would lead the jury astray, either through misrepresenting or manipulating the case, or through outright lies and deceit.  Indeed, some judiciary members argued that “‘if counsel learned should plead [the defendant’s] plea for him, and defend him, it may be that they would be so covert in their speeches, and so shadow the matter with words, and so attenuate the proofs and evidence, that it would be hard, or long to have the truth appear’” (Langbein, 35).  There was a general concern that counsel for the accused would “employ unscrupulous means to ‘prove…or disprove’ whatever the case needed for victory” (Langbein, 145) – in other words, manipulate the criminal’s narrative so as to influence the jury to vote in favor of an acquittal.  Because the public was especially fearful of the defense lawyer’s potential to “concoct false alibis for defendants” (Langbein, 143) and otherwise doctor the true story, it was not until the middle of the eighteenth century that criminal counsel was allowed in normal criminal trials.[5]  Beginning in 1730, the English judicial system began recognizing the need to “allow the criminal defendant to have the assistance of counsel for the purpose of probing the prosecution evidence at trial” (Langbein, 110).  Concerns about the “increasingly suspect” (Langbein, 110) prosecution becoming too powerful and influential in the courtroom provided the impetus behind relaxing the prohibition against criminal counsel in an effort to even the playing field. 

Defense lawyers were not, however, without restrictions; initially, lawyers were only permitted to examine and cross-examine witnesses, not to speak on the accused’s behalf or to present the accused’s case to the jury.  Additionally, because the decision regarding whether or not a defense lawyer was even allowed to participate was not yet officially incorporated into the statute, it still remained within the discretion of each trail judge; thus, if a judge did not believe the case or the criminal merited representation, he could simply bar defense counsel from appearing (Langbein, 174).  The purpose of criminal counsel at this point in time, then, was not to mold a narrative to help the accused escape punishment, but rather to address any misuse of the law by the prosecution.  The accused was still expected to assume full responsibility for presenting his side of the story and any evidence he might have. 

Once the defense lawyer was granted permission to appear in court, however, his role gradually began to shift, and “by the last quarter of the eighteenth century, when the systematic lawyerization of the trial became pronounced, the defendant’s right to engage trial counsel had become an entitlement of English criminal procedure” (Langbein, 257).  The defense counsel began to have much more active roles in the representation of the accused, often going so far as to affect the presentation of a case to the judge.  Lawyers began to advise the accused regarding what to say and how to frame their stories so as to offer the most advantageous narrative to the judge and jury.  Thus, “by telling […] accused what sort of statement might be helpful and what might be harmful, defense lawyers could effectively shape some of what the defendant […] said” (Langbein, 270).  In essence, then, defense lawyers began assuming the responsibility for manipulating the characters of the defendants, crafting new life narratives and tweaking circumstances to present their clients in the best light.  Though the right to a full legal defense to felony defendants was not extended until 1836 (Langbein, 272), the role that defense lawyers would eventually come to occupy – namely, as the “editor,” so to speak,[6] of the defendant’s story – was presaged long before, in the role of the criminal himself, who was (like Mr. Jenkinson and Moll) continually forced to “turn sharper in [his] own defence.”

Mr. Jenkinson’s claim, then, constitutes one of the first suggestions of advocacy for the criminal’s defense.  The ease with which offenders shifted characters and changed their narratives to evade capture or detection was, as Mr. Jenkinson states, one of the only recourses they had under the English judicial system of the era; this provided a foundation for the emergence of the criminal defense profession, as the burden of recounting the stories and of successfully arguing a case became increasingly difficult for the offenders to bear alone.  As the eighteenth century progressed, the accused’s counsel steadily assumed more and more of the responsibilities of crafting defenses, eventually supplanting the criminal as the narrator of his life and his crimes.  The act of “turn[ing] sharper in [one’s] own defence” was no longer just another instance of a criminal’s duplicity; instead, it had morphed into an accepted, almost expected legal practice – something so commonplace that stereotypes of the lying, “blood-sucking” lawyer have evolved around it.  The credibility of first the criminals themselves, then their lawyers, is thus always in question.  Hal Gladfelder, author of Criminality and Narrative in Eighteenth-Century England: Beyond the Law, states it best.  “Circumstances can only be known by the stories people tell of them,” he writes, and there will always exist “problems inherent in human testimony and witness” (Gladfelder, 179).  Precisely because of the specifically “constructed character of the narrative” (Gladfelder, 185), legal defenses can never truly escape skepticism and accusations of manipulation. 

This concept gives rise to several significant questions.  If what the criminal defense lawyer does is, in large part, smoke and mirrors in order to deceive a jury into believing the defendant is something other than s/he is, doesn’t this undermine the credibility of the criminal system itself?  Can a society trust the criminal justice system to actually apprehend and punish the guilty?  In the alternative, however, if there are no defense lawyers, the power of the prosecution to convict the innocent increases, which will also undermine the justice system.  This inherent conflict underlies the crime novel of the eighteenth century as well – Mr. Jenkinson’s duplicity, or “turn[ing] sharper in [his] own defence,” exposes a similar flaw in the criminal justice system of the time.  Thus, novels such as The Vicar of Wakefield or Moll Flanders reflect their authors’ understanding of the larger societal issues of the era – issues of truth or falsehood that remain relevant today.

 


 



[1] The first instance of this occurs when the vicar first encounters the thief disguised as an older gentleman at an ale-house (Goldsmith 60-61).  Upon entering into conversation with Dr. Primrose, Mr. Jenkinson spouts a lot of meaningless and irrelevant philosophical concepts, references a motley collection of ancient scholars, and mangles one or two Greek sayings – all of which favorably impress the vicar and lead him to “reverence [Jenkinson] the more” (62).

[2] Though this instance seems benevolently intentioned (since this helps the vicar escape his prison sentence), it is symptomatic of the way Mr. Jenkinson influences people, namely via deceit and trickery. 

[3] Moll’s manipulation of her own criminal history is evident as she is recounting her story to her husband: “I spoke with more Courage than I thought I cou’d have done, and in such a moving tone, and tho’ with Tears, yet not so many Tears as to obstruct my Speech, that I cou’d see it mov’d others to Tears that heard me” (Defoe, 224, emphasis added).

[4] This adds a whole new dimension and a whole other level of ambiguity to the notion of character.  Character, then, has a unique and specific legal aspect attached to it.  It is this legal connotation and the ways criminals (and, subsequently, defense lawyers) manipulate it that this paper attempts to dissect – more specifically, the ways in which criminals manipulate their “legal characters” foreshadows the ways in which the modern defense lawyer does the same for his clients.

[5] I use “normal” in the sense of “generic” or “usual” criminal trials; in fact, the precedent was first established much earlier with the Treason Trials Act of 1696, which granted those accused of treason the right to have access to defensive counsel.  However, this right was reserved uniquely for cases of treason and remained thus restricted up until the mid-eighteenth century. 

[6] It is worthwhile to note here that Defoe’s preface to Moll Flanders constitutes perhaps the first step towards recognizing the need for a defense counsel role in a crime novel, as Defoe actually does present himself as the “editor” of Moll’s life story. 

Works Cited

Bell, Ian A.  "Moll Flanders, Crime and Comfort."  Moll Flanders.  By Daniel Defoe.  Ed. Albert J. Rivero.  New York: W.W. Norton, 2004.  p. 403-436.

"Character Witness Law & Legal Definition."  USLegal.com.  2001.  Online: <http://definitions.uslegal.com/c/character-witness/>.  11 Feb. 2012

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