The presumption of guilt and the English law of theft, 1750-1850

Law and History Review

Volumn 23, Issue 1, 2005, Pages 133-171

  Smith, Bruce P ^a,b  

^a Illinois Legal History Program   (United States)

^b UNIVERSITY OF ILLINOIS AT URBANA CHAMPAIGN   (United States)

Author keywords

[No Author keywords available]

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EID: 60950706198     PISSN: 07382480     EISSN: None     Source Type: Journal    
DOI: 10.1017/S0738248000000079     Document Type: Review

References (149)

1. Glanville Williams, The Proof of Guilt: A Study of the English Criminal Trial, 2d ed. (London: Stevens & Sons, 1958), 152
2. The reference to the "golden thread" is from Woolmington v. Director of Public Prosecutions, [1935] A.C. 462 [H.L.], considered to be the "leading case" on the burden of proof in English criminal law
3. See Phipson on Evidence, ed. M. N. Howard, 15th ed. (London: Sweet & Maxwell, 2000), 59
4. Scholarly understandings of the presumption differ. In the words of a prominent American treatise, the presumption "is generally taken to mean no more than that the prosecution has . . . the burden of producing evidence of guilt in order to avoid a directed verdict" and "of persuading the fact-finder of guilt beyond a reasonable doubt in order to secure a conviction." Wayne R. LaFave and Austin W. Scott, Jr., Substantive Criminal Law (St. Paul, Minn.: West Publishing Co., 1986), §1.8, 81 (emphases added). According to two leading English commentators, the presumption of innocence means no more than "that the prosecution is obliged to prove the case against [the defendant] beyond reasonable doubt."
5. Sir Rupert Cross and Colin Tapper, Cross on Evidence, 7th ed. (London: Butterworths, 1990), 125
6. But see George P. Fletcher, "Two Kinds of Legal Rules: A Comparative Study of Burden-of-Persuasion Practices in Criminal Cases," Yale Law Journal 77 (1968): 880 n. 2 (arguing that the presumption of innocence and "beyond reasonable doubt" standard of proof are historically and philosophically distinct)
7. See Williams, Proof of Guilt, 151 (describing the presumption as "dear to the hearts of Englishmen")
8. and David Fellman, The Defendant's Rights Under English Law (Madison: University of Wisconsin Press, 1966), 104 ("English law always starts with a strong presumption against the commission of a crime") (emphasis added)
9. Coffin v. United States, 156 U.S. 432, 453 (1895)
10. For citations to other American cases expressing similar veneration, see William S. Laufer, "The Rhetoric of Innocence," Washington Law Review 70 (1995): 338-39 n. 43
11. William Blackstone, Commentaries on the Laws of England, vol. 4, Of Public Wrongs (1769), 352
12. and United States v. Greer, 538 F.2d 437, 441 (D.C. Cir. 1976) ("It is a cardinal principle of Anglo-American jurisprudence that, in Blackstone's immortal words, better ten guilty persons should go free than one innocent person be convicted.")
13. Over time, commentators have expressed widely disparate views as to the optimal ratio of "guilty" to "innocent." See Alexander Volokh, Aside, "n Guilty Men," University of Pennsylvania Law Review 146 (1997): 173-211
14. On the rise of counsel at the Old Bailey, see John H. Langbein, The Origins of Adversary Criminal Trial (Oxford: Oxford University Press, 2003)
15. idem, "The Prosecutorial Origins of Defence Counsel in the Eighteenth Century: The Appearance of Solicitors," Cambridge Law Journal 58 (1999): 314-65
16. idem, "Shaping the Eighteenth-Century Criminal Trial: A View from the Ryder Sources," University of Chicago Law Review 50 (1983): 123-30
17. idem, "The Criminal Trial before the Lawyers," University of Chicago Law Review 45 (1978): 307-14
18. May, The Bar and the Old Bailey
19. David J. A. Cairns, Advocacy and the Making of the Adversarial Criminal Trial 1800-1865 (Oxford: Clarendon Press, 1998)
20. J. M. Beattie, "Scales of Justice: Defense Counsel and the English Criminal Trial in the Eighteenth and Nineteenth Centuries," Law and History Review 9 (1991): 221-67
21. and Stephan Landsman, "The Rise of the Contentious Spirit: Adversary Procedure in Eighteenth Century England," Cornell Law Review 75 (1990): 497-609
22. For historical treatments of the "beyond-reasonable-doubt" standard, see Barbara J. Shapiro, "Beyond Reasonable Doubt" and "Probable Cause": Historical Perspectives on the Anglo-American Law of Evidence (Berkeley: University of California Press, 1991 )
23. idem, "'To A Moral Certainty': Theories of Knowledge and Anglo-American Juries 1600-1850," Hastings Law Journal 38 (1986): 153-93
24. Langbein, Origins of Adversary Criminal Trial, 261-66
25. Steve Sheppard, "The Metamorphoses of Reasonable Doubt: How Changes in the Burden of Proof Have Weakened the Presumption of Innocence," Notre Dame Law Review 78 (2003): 1165-1249
26. and Anthony A. Morano, "A Reexamination of the Development of the Reasonable Doubt Rule," Boston University Law Review 55 (1975): 507-28
27. See Blackstone, Commentaries, 4:277 ("By a summary proceeding I mean principally such as is directed by several acts of parliament . . . for the conviction of offenders, and the inflicting of certain penalties created by those acts of parliament. In these there is no intervention of a jury, but the party accused is acquitted or condemned by the suffrage of such person only, as the statute has appointed for his judge")
28. On the eighteenth-century English magistracy generally, see Norma Landau, The Justices of the Peace, 1679-1760 (Berkeley: University of California Press, 1984)
29. For details on the origins of the stipendiary magistracy in London, see Ruth Paley, "The Middlesex Justices Act of 1792: Its Origins and Effects" (Ph.D. diss., University of Reading, 1983)
30. and David Philips, "'A New Engine of Power and Authority': The Institutionalization of Law-Enforcement in England 1780-1830," in Crime and the Law: The Social History of Crime in Western Europe since 1500, ed. V. A. C. Gatrell, Bruce Lenman, and Geoffrey Parker (London: Europa, 1980), 155-89
31. Relevant historical studies include Bruce P. Smith, "Circumventing the Jury: Petty Crime and Summary Jurisdiction in London and New York City, 1790-1855" (Ph.D. diss., Yale University, 1996)
32. King, Crime, Justice, and Discretion, 82-110
33. V. A. C. Gatrell, "Crime, Authority and the Policeman-State," in The Cambridge Social History of Britain 1750-1950, vol. 3, Social Agencies and Institutions, ed. F. M. L. Thompson (Cambridge: Cambridge University Press, 1990), 243-310
34. and Joanna Innes, "Prisons for the Poor: English Bridewells, 1555-1800," in Labour, Law and Crime: An Historical Perspective, ed. Francis Snyder and Douglas Hay (London: Routledge, 1987), 42-122
35. For discussions of summary proceedings in the post-1850 period, see Jennifer Davis, "A Poor Man's System of Justice: The London Police Courts in the Second Half of the Nineteenth Century," Historical Journal 27 (1984): 309-35
36. and George Behlmer, "Summary Justice and Working-Class Marriage in England, 1870-1940," Law and History Review 12 (1994): 229-75
37. Compare Douglas Hay, "Property, Authority and the Criminal Law," in Albion's Fatal Tree: Crime and Society in Eighteenth-Century England, ed. Douglas Hay et al. (New York: Pantheon Books, 1975), 18 (arguing that English criminal law served the interests of the ruling class and noting that "[al]most all" of the 150 capital statutes adopted by Parliament from 1688 to 1820 "concerned offences against property)
38. See J. M. Beattie, Policing and Punishment in London, 1660-1750: Urban Crime and the Limits of Terror (Oxford: Oxford University Press, 2001), 25 n. 62
39. See J. M. Beattie, Crime and the Courts in England 1660-1800 (Princeton: Princeton University Press, 1986), 181-82, table 4.7
40. See also King, Crime, Justice, and Discretion, 137, table 5.3 (finding that indictments for grand and petty larceny accounted for 66.4 percent of indictments for property crime in Essex from 1791 to 1800)
41. Edward Hyde East, A Treatise of the Pleas of the Crown (London: A. Strahan, 1803), 2:553
42. See also William Hawkins, Pleas of the Crown 1716-1721 (1716; reprint, ed. P. R. Glazebrook [London: Professional Books, 1973]), 1:89-95
43. Thomas Starkie, A Practical Treatise on the Law of Evidence, and Digest of Proofs, in Civil and Criminal Proceedings, 2d Am. ed. (Boston: Wells & Lilly, 1828), 2:824
44. Thomas Cox, OBSP (1803, 3d sess.), Case No. 214
45. William Jolly, OBSP (1801, 1st sess.), Case No. 31
46. See Colquhoun, Treatise (River Thames), 14
47. James Smith, OBSP (1801, 1st sess.), Case No. 20 (emphasis added)
48. East, Treatise, 2:651
49. Samuel Thomson, OBSP (1803, 2d sess.), Case No. 145
50. John Stedman, OBSP (1803, 3d sess.), Case No. 186 (capitalization in original)
51. (cited in John H. Langbein, "The Historical Origins of the Privilege Against Self-Incrimination at Common Law," Michigan Law Review 92 [1994]: 1070 n. 101)
52. Richard May, OBSP (1803, 3d sess.), Case No. 191
53. Thropp, OBSP (1803, 6th sess.), Case No. 499
54. Contrast the challenges posed by the current scourge of automobile theft in the United Kingdom, which, according to a recent Home Office estimate, accounts for roughly 25 percent of recorded crime. The use of VIN numbers and Automatic Number Plate Recognition, among other detection tools, has led to a roughly 70 percent recovery rate for stolen cars. See "Tackling Vehicle Crime: A Five Year Strategy," http://www.crimereduction.gov.uk/vrcat2. htm#chap1. Compared to rope, wood, or metal, the sheer variety of styles, colors, and model years of automobiles no doubt also assists recovery efforts
55. For a sensitive treatment of these issues in an earlier period, see Cynthia B. Herrup, The Common Peace: Participation and the Criminal Law in Seventeenth-Century England (Cambridge: Cambridge University Press, 1987), 79 (noting that "[t]he identification of stolen articles was a persistent problem")
56. R. J. B. Knight, "Pilfering and Theft from the Dockyards at the Time of the American War of Independence," Mariner's Mirror 61 (1975): 215, 221 (internal quotation removed)
57. Starkie, Law of Evidence, 2:840 (emphasis in original)
58. On Starkie's significance, see C. J. W. Allen, The Law of Evidence in Victorian England (Cambridge: Cambridge University Press, 1997), 20-23
59. See generally McConnick on Evidence, ed. Edward W. Cleary, 3d ed. (St. Paul, Minn.: West Publishing Co., 1984), 366
60. For a brief treatment of the doctrine's historical origins, see David A. Moran, "In Defense of the Corpus Delicti Rule," Ohio State Law Journal 64 (2003): 817-54
61. United States v. Bryce, 208 F.3d 346, 354 (2d Cir. 1999)
62. Matthew Hale, Historia Placitorum Coronae, (1736; reprint, ed. P. R. Glazebrook [London: Professional Books], 1971), 2:290 (emphasis added)
63. For additional details of these bizarre events, see S. M. Phillipps, Famous Cases of Circumstantial Evidence; with an Introduction on the Theory of Presumptive Proof (New York: J. Cockcroft, 1875), 50-52
64. and Bruce P. Smith, "The 'Campden Wonder' and the Problem of the Missing Body" (paper presented at the annual meeting of the American Society for Legal History in Washington, D.C., November 2003)
65. Wigmore on Evidence, 7:546
66. R. v. Dredge, 1 Cox's Criminal Cases 235 (1845)
67. For example, the rules surrounding proof of simple larceny covered nearly 150 pages of East's 1803 treatise. See East, Treatise, 2:554-699
68. For discussion of these complexities, see, for example, Jerome Hall, Theft, Law and Society (Boston: Little, Brown, 1935)
69. and George P. Fletcher, "The Metamorphosis of Larceny," Harvard Law Review 89 (1976): 469-530
70. Fisher, "Jury's Rise," 640 n. 294 (italics omitted)
71. idem, "The Trading Justice's Trade," in Law, Crime and English Society, 1660-1830, ed. Norma Landau (Cambridge: Cambridge University Press, 2002), 46-70
72. and idem, "Appearance at the Quarter Sessions of Eighteenth-Century Middlesex," London Journal 23/2 (1998): 30-52
73. See Marcus Rediker, Between the Devil and the Deep Blue Sea: Merchant Seamen, Pirates, and the Anglo-American Maritime World, 1700-1750 (Cambridge: Cambridge University Press, 1987), 24-27
74. See Clive Emsley, The English Police: A Political and Social History, 2d ed. (London: Longman, 1996), 29
75. (citing Parliamentary Papers 1837 [451] XII, Metropolis Police Offices, 603)
76. For a useful diagram setting forth, on a parish-by-parish basis, the dates when the professional police became operational in the metropolis after 1829, see Elaine A. Reynolds, Before the Bobbies: The Night Watch and Police Reform in Metropolitan London, 1720-1830 (Stanford: Stanford University Press, 1998), 150-51, map 9.1
77. Ballantine and Clarkson to Phillipps, 6 December 1836, Thames PO Letter Book
78. See "Information of Thomas Murray before Henry Moreton Dyer, 17 April 1833, at Great Marlborough Street Police Office upon the Examination and in the presence and hearin[g] of John Gook and George Lowen then and there charged with a Misdemeanor," 17 April 1833, MJ/SP/1833/05/029
79. Bloxham was discharged. See Daily Police Report, 24 October 1836, HO 62/18
80. Reference to Murray's fine is contained in Phillipps to Thames Police Office, 2 December 1836, Thames PO Letter Book
81. Gregoire to Home Office, 6 March 1837, Police Courts In-Letters, HO 59/8
82. See Landau, Justices of the Peace, 246
83. Other discussions of this legislation include Smith, "Circumventing the Jury," 78-119
84. and David Lieberman, The Province of Legislation Determined: Legal Theory in Eighteenth-Century Britain (Cambridge: Cambridge University Press, 1989), 14-15
85. On the "Bloody Code," see, for example, Sir Leon Radzinowicz, A History of English Criminal Law and its Administration from 1750, vol. 1, The Movement for Reform 1750-1833 (New York: Macmillan, 1948), 3-8
86. Hay, "Property, Authority"
87. and Randall McGowen, "Making the 'Bloody Code'? Forgery Legislation in Eighteenth-Century England," in Law Crime and English Society, 117-38
88. 29 Geo. II, c. 30 (1756)
89. 2 Geo. III, c. 28 (1762), preamble
90. For discussions of appropriation from boats, docks, and wharves on the Thames, see Peter Linebaugh, The London Hanged: Crime and Civil Society in the Eighteenth Century, 2d ed. (London: Verso, 2003), 390-96
91. and Knight, "Pilfering."
92. On the Bumboat Act and earlier efforts to regulate vessels on the Thames, see Radzinowicz, History of English Criminal Law, 2:483-85. (The spellings "bum boat" and "bumboat" appear to have been used interchangeably by contemporary writers.)
93. For a lucid discussion of this measure in the context of other
94. See Beattie, Policing and Punishment, 26-27
95. idem, Crime and the Courts, 269-70
96. Innes, "Prisons for the Poor;"
97. and Paul Griffiths, "Contesting London Bridewell, 1576-1580," Journal of British Studies 42 (2003): 314
98. See also Robert B. Shoemaker, Prosecution and Punishment: Petty Crime and the Law in London and Rural Middlesex, c. 1660-1725 (Cambridge: Cambridge University Press, 1991)
99. Although there has been a surge of historical interest in the past decade in eighteenth-century Parliamentary legislation, much work remains to be done on the motivations for statutes conferring summary jurisdiction. For relevant general studies, see Julian Hoppit, "Patterns of Parliamentary Legislation, 1660-1800," Historical Journal 39 (1996): 109-31
100. Julian Hoppit, Joanna Innes, and John Styles, "Towards a History of Parliamentary Legislation, 1660-1800," Parliamentary History 13(1994): 312-21
101. Joanna Innes, "The Domestic Face of the Military-Fiscal State: Government and Society in Eighteenth-Century Britain," in An Imperial State at War: Britain from 1689 to 1815, ed. Lawrence Stone (London: Routledge, 1994), 96-127
102. idem, "Parliament and the Shaping of Eighteenth-Century English Social Policy," Transactions of the Royal Historical Society 40, 5th ser., (1990): 63-92
103. Peter King, "Gleaners, Farmers and the Failure of Legal Sanctions in England 1750-1850," Past & Present 125 (1989): 116-50
104. Tim Shakesheff, "Wood and Crop Theft in Rural Herefordshire, 1800-60," Rural History 13 (2002): 1-17
105. See Richard J. Soderlund, "'Intended as a Terror to the Idle and Profligate': Embezzlement and the Origins of Policing in the Yorkshire Worsted Industry, c. 1750-1777," Journal of Social History 31 (1998): 653
106. On the expressive impact of law, see Richard McAdams, "A Focal Point Theory of Expressive Law," Virginia Law Review 86 (2000): 1649-1729
107. On this theme, see Joanna Innes, "Statute Law and Summary Justice in Early Modern England" (1986). I am grateful to the author for making this unpublished paper available to me
108. Innes, "Statute Law and Summary Justice," 34
109. and Bruce P. Smith, "Summary Proceedings, Lawyerization, and Bounded Discretion" (paper presented at the annual meeting of the Midwest Conference on British Studies, Bloomington, Ill., October 2003)
110. and idem, review of Law, Crime and English Society, 1660-1830, Law and History Review 22 (2004): 648-50
111. My analysis of the calendars for two sample years (1790 and 1792) reveals that roughly 65 percent of convictions returned by magistrates to the Middlesex Quarter Sessions involved some form of misappropriation. See Smith, "Circumventing the Jury," 89, table 2.1. In 1790, Middlesex JPs returned 143 summary committals for illegal appropriation to the quarter sessions, a figure that likely understates their number
112. For further discussion of the sources from which these data were drawn, see Norma Landau, "The Trading Justice's Trade," in Law, Crime and English Society, 65-66
113. On Colquhoun, see Sir Leon Radzinowicz, A History of English Criminal Law and its Administration from 1750, vol. 3, Cross-Currents in the Movement for the Reform of the Police (New York: Macmillan, 1957), 211-51
114. 5 Geo. IV, c. 83, § 4 (1824)
115. Traill Report, 218
116. See above, note 19
117. 6 Geo. III, c. 48 (1766)
118. On the 1766 act, see Radzinowicz, History of English Criminal Law, 1:485
119. See James Oldham, The Mansfield Manuscripts and the Growth of English Law in the Eighteenth Century (Chapel Hill: University of North Carolina Press, 1992), 2:1203-1
120. For similar reflections on the fate of the "silent defendant," see John Fabian Witt, "Making the Fifth: The Constitutionalization of American Self-incrimination Doctrine, 1791-1903," Texas Law Review 77 (1999): 828
121. Langbein, "Historical Origins," 1048
122. and Caims, Advocacy, 85-86, 176-78
123. Langbein, "Historical Origins," 1056-57. On the development of the standard of proof "beyond a reasonable doubt," see sources cited in note 6
124. (citing Cottu, On the Administration of Criminal Justice in England, 88, 105)
125. R. v. Burton, Dears. Cr. C. 282 (1854)
126. See also Markus Dirk Dubber, "Policing Possession: The War on Crime and the End of Criminal Law," Journal of Criminal Law & Criminology 91 (2001): 829-996
127. 32 Geo. III, c. 53 (1792)
128. See Renée Lettow Lerner, "The Transformation of the American Civil Trial: The Silent Judge," William & Mary Law Review 42 (2000): 195-264
129. idem, "New Trial for Verdict Against Law: Judge-Jury Relations in Early Nineteenth-Century America," Notre Dame Law Review 71 (1996): 505-53
130. Kenneth A. Krasity, "The Role of the Judge in Jury Trials: The Elimination of Judicial Evaluation of Fact in American State Courts from 1795 to 1913," University of Detroit Law Review 62 (1985): 595-632
131. and Lawrence M. Friedman, A History of American Law, 2d ed. (New York: Simon & Schuster, 1985), 155
132. One must not underestimate, however, the ability of modern judges to guide the jury by questioning witnesses or by responding to testimony with facial expressions and gestures. See Michael Pinard, "Limitations on Judicial Activism in Criminal Trials," Connecticut Law Review 33 (2000): 256-65
133. Hodge, 50 N.H. at 526 (internal citations omitted)
134. William Kinnard, John Longley, and Thomas Richbell to Home Office, 5 March 1821, Thames PO Letter Book. Referring to their "imperative duty" to make "such a number of Summary Convictions," the magistrates urged that "no difficulties nor doubts ought to be thrown in the way of [these] powers" and that "the law upon which [summary convictions were] founded should be simplified as much as possible."
135. See also Provision VIII of "Summary view of a Bill for the more effectual prevention of depredations on the River Thames," ibid., 674-76
136. Traill Report, 219
137. Parliamentary History of England 29:1466-67 (1792)
138. On the Parliamentary debate over Clause D, see Radzinowicz, History of English Criminal Law, 3:126-30
139. See above, note 6
140. Styles, "Embezzlement," 195
141. See also King, Crime, Justice, and Discretion, 103 (arguing that such statutes effectively reversed "the principle that the accused was innocent until proved guilty")
142. Andrew Ashworth and Meredith Blake, "The Presumption of Innocence in English Criminal Law," Criminal Law Review (May 1996): 310. ("An offence that requires a defendant to prove a defence is one that requires him or her [in certain circumstances] to establish innocence, and it may therefore be said to derogate from the presumption of innocence. The burden of proof does not lie on the prosecution in all respects.")
143. See also Langbein, Origins of Adversary Criminal Trial, 266, n. 63 (noting that summary proceedings appear to have relaxed the "beyond- reasonable-doubt" standard of proof)
144. R. v. Lambert, [2002] 2 A.C. 545 (H.L. 2001) (available in Lexis United Kingdom database)
145. Convention for the Protection of Human Rights and Fundamental Freedoms, art. 6(2)
146. and R. v. Daniel, [2002] EWCA Crim. 959 (C.A. 2002) (available in Lexis United Kingdom database)
147. I am indebted to my colleague Richard McAdams for prompting me to think more carefully about this issue
148. I am grateful to John Langbein for emphasizing this point to me
149. For further discussion, see Douglas Hay, "Dread of the Crown Office: The English Magistracy and King's Bench, 1740-1800," in Law, Crime and English Society, 19-45