and the English Law of Theft, 1750-1850 Bruce P. Smith†
When it is said that a defendant to a criminal charge is presumed to be innocent, what is really meant is that the burden of proving his guilt is upon the prosecution. This golden thread . . . runs through the web of the English criminal law. Unhappily Parliament regards the principle with indifference—one might almost say with contempt. The statute book contains many offences in which the burden of proving his innocence is cast on the accused.1
Glanville Williams, The Proof of Guilt: A Study of the English
Criminal Trial (1955)
No principle in Anglo-American criminal law is more vaunted than the so-called “presumption of innocence:” the doctrine that the prosecution must both produce evidence of guilt and persuade the fact-finder “beyond a reasonable doubt.”2 The claim that “every man is presumed to be innocent until he is proved guilty” has been described as “dear to the hearts of Englishmen” and as an omnipresent feature of English criminal law.3 In 1895, the United States Supreme Court declared the “presumption of innocence in favor of the accused” to be “the undoubted law, axiomatic and elementary”—a protection that “lies at the foundation of the administration of our criminal law.”4 Befitting its lofty stature in Anglo-American legal culture, the presumption has become associated, over time, with that most famous of Blackstonean maxims: “[I]t is better that ten guilty persons escape, than that one innocent suffer.”5
Recently, Allyson May has argued that the presumption developed in the eighteenth century along with a series of procedural and evidentiary protections benefiting defendants tried at London’s Old Bailey, including the right to counsel, the notion of the prosecution’s “case,” and the “beyond-reasonable-doubt” standard of proof.6But how robust was the presumption of innocence in late eighteenth and early nineteenth century English criminal law? This article argues that many English criminal defendants in the late eighteenth and early nineteenth centuries did not benefit from a presumption of innocence but, rather, struggled against a statutory presumption of guilt. In the starkest cases, defendants labored under a presumption of guilt when charged with violating one of numerous statutes passed by Parliament during the eighteenth and early nineteenth centuries designed to combat various forms of misappropriation. Under these statutes, persons detected in possession of goods such as metal, rope, textile materials, or wood who failed to “account” adequately for their possession could be convicted by magistrates of misdemeanors in “summary proceedings,” which dispensed with certain important procedural and evidentiary protections applicable in cases of larceny tried in the higher courts.7
Unfortunately, historians still know comparatively little about summary proceedings—this, despite their critically important role in the administration of criminal justice in eighteenth and early nineteenth century England (and beyond).8 This article advances two principal claims: first, English criminal justice administrators from roughly 1750 to 1850 routinely resorted to summary proceedings in cases of suspected petty theft because of the challenges of securing convictions in the higher courts for the felony of simple larceny; and, second, English criminal justice administration in this era is best viewed as a “two-tiered” system, in which heightened procedural and evidentiary protections for defendants tried for felonies in the higher courts co-existed with a system of reduced protections for defendants tried summarily for misdemeanors.
I. Prosecuting Larceny at the Old Bailey in the Early Nineteenth Century Although historians have hotly contested the nature of English criminal justice administration in the eighteenth and early nineteenth centuries, they have agreed that property-related offenses dominated the landscape of the English criminal law.9 Of the various property-related offenses, the offense of simple larceny stood out, accounting for over 60 percent of property-related cases tried at the Old Bailey from the 1780s to the 1820s.10
The common law defined simple larceny as “the felonious and fraudulent taking and carrying away, by any person, of the mere personal goods of another, neither from the person, nor by night in the house of the owner.”11 By the eighteenth century, legal commentators typically divided proof of simple larceny into four elements: (1) that the accused “took” the property (“caption”); (2) that the accused “carried away” the property (“asportation”); (3) that the property was “personal” (and not “real”); and (4) that the accused had acted with “felonious intent.”12
Despite the apparent simplicity of these elements and the centrality of the law of larceny to English criminal justice administration, several obstacles conspired to frustrate potential convictions for the offense. Some of these pitfalls involved weaknesses in the pre-trial process. Because thieves frequently operated at night and often targeted nondescript goods (such as wool, coal, wood, or rope), property owners might fail even to detect the loss of their items. Moreover, if a victim of theft did manage to detect that his or her goods had gone missing, he or she might still decline to prosecute, deterred by the inconvenience and cost of trial, by the relative ease of negotiating a settlement with the suspect, or by qualms about the severity of the accused’s possible punishment. Finally, a victim who sought to try a case at either the quarter sessions or the assizes then faced the significant legal hurdle of obtaining a “true bill” from the grand jury.13
Establishing the Goods as the Prosecutor’s Private prosecutors who successfully cleared these pre-trial hurdles might still confront significant evidentiary challenges at trial. At the threshold, a prosecutor seeking to secure a conviction for larceny often needed to convince the jury that goods found in the defendant’s possession were actually the prosecutor’s. Not surprisingly, victims of theft who could produce at trial one or more eyewitnesses to the alleged offense faced relatively strong prospects of success.14
Prosecutors who could combine eyewitness testimony with cocksure identification of the goods found in the possession of defendants no doubt enjoyed even better odds. In 1803, the baker Edward Osman testified at the Old Bailey that he had spotted the defendant, Thomas Cox, stealing his bread. But Osman clinched the conviction after he confidently identified the bread, claiming to the jury that it was his practice to mark his bread “with a particular large W, different from all other bakers in London.”15Similarly, in a prosecution at the Old Bailey in 1802 alleging the theft of a “wherry-boat,” the prosecutor, Abraham Hodges, testified that he had “built [the boat], and marked her with [his] marking-iron, [with] five of the marks . . . punched in her bottom, and four in her keel; I am sure she is the same boat.”16 Hodges obtained a conviction despite the fact that an estimated 3,000 “wherry boats” plied the Thames at that time.17
On the other hand, prosecutions for larceny could easily fail if trial jurors had reason to question a prosecutor’s claims to ownership. Here, the nature of the goods typically stolen in London—what might be termed the “material culture of theft”—could raise significant problems of proof. In 1801, for example, James Richardson prosecuted James Smith on a charge of feloniously stealing “an inch and [a] quarter plank” of wood from Richardson’s business. At trial, Richardson provided the following self-assured testimony: “I am positive it was our plank, because we had several out of the same tree, and it is an inch and quarter plank, which we gave a particular order for, and I rather suppose there is no such thing in London beside.”18 Despite Richardson’s assurances, the jury acquitted the defendant, likely disbelieving Richardson’s claim that the wooden plank he claimed to have lost had no peer in all of London.
Admittedly, under English law, persons apprehended with goods in their possession could be indicted for larceny even when the actual owner of the goods could not be determined before trial. Thus, writing in 1800, the legal commentator Edward Hyde East observed that a suspect could “be charged in the indictment with having stolen the goods of a person to the jurors unknown.”19 Consistent with East’s statement of the law, the Old Bailey Sessions Papers reveal numerous prosecutions for larceny where the owner of the goods had not been identified before trial. However, prosecutions grounded on indictments that alleged theft from “persons unknown” (or from one of several prospective owners) tended to fare poorly at trial compared to prosecutions where actual victims had been identified in the indictment.20 The fate of an indictment brought in 1802 against one Samuel Thomson, accused of stealing two wax leather calf-skins from a lengthy list of potential owners, appears to have been typical: “There being no evidence to bring the charge home to the prisoner, he was not put on his defense.”21 Similarly, in that same year, judges at the Old Bailey dismissed an indictment against John Stedman alleging theft of clothing from two different owners: “There being no evidence to bring the charge home to the prisoner, [the defendant] wasACQUITTED.”22 In these cases, the presiding judges appear to have entered the equivalent of a directed verdict of acquittal—perhaps because the actual victims of theft capable of speaking to the goods’ loss and identity never materialized.23
Surviving Cross-Examination Prosecutors’ efforts to identify their goods could be made even more difficult by the activities of defense counsel, who emerged at the Old Bailey in the 1730s and became increasingly active thereafter.
Consider the fortunes of John Smith, who prosecuted Richard May in 1802 for allegedly stealing a pair of shoes valued at 4 shillings that Smith claimed to have left hanging outside his house. At trial, May’s defense counsel crisply cross-examined Smith as to Smith’s purported identification of the shoes:
Q: What is there remarkable in these shoes?
A: They are very badly made and closed; they are bad altogether.
Q: You would not swear there are not many others made like them?
After hearing this meek concession, the jury acquitted the defendant.
Similarly, in a case involving the theft of three ducks, the barrister John Gurney successfully rattled the testimony of Robert Puller, a servant who had appeared at the Old Bailey in support of his master. During his direct examination, Puller testified that he had heard a noise at night and had gone “out into the yard,” where he “heard the ducks cry” and “saw the prisoner.” Unfortunately for Puller, “it was so dark that [he] could not see whether [the suspect] had [a duck] in his hand or not.” After chasing the intruder over the fence, catching him, and giving him “a blow on the side of his head,” Puller “found a bag with three live ducks in it.” On direct, Puller testified gamely that “[he] never lost sight of [the suspect] all the way” and, upon apprehending him, had “counted the ducks, and found two short of the number.” After hearing this testimony, Gurney subjected the servant to a withering cross-examination:
Q: How many ducks have you in the yard?
A: Twenty-one dozen and five [i.e., 257].
Q: You do not mean to swear to [the identity of] the ducks [allegedly stolen]?
A: No, I cannot.
Q: There was nothing remarkable in the colour of those ducks?
Q: Did you count them over?
A: No; the man that counted them is not here.25
When Puller’s master, Titus Farmer, appeared at trial, he could only aver feebly that he “believe[d] the ducks to be [his]” but that he could not “positively swear to them.” After hearing from four character witnesses called on the defendant’s behalf, the jury returned a verdict of not guilty.26
For twenty-first century readers, whose material possessions come in distinctive colors, models, and brands and are often stamped with identification numbers, it requires an imaginative leap to recapture the dramatically different material world of late eighteenth and early nineteenth century England. During that time, wealth—at least among the lower and middling classes—frequently resided in humble goods such as wood, metal, rope, and vegetables, which were virtually indistinguishable from similar items held by others.27 The nature of this early modern material culture had serious implications for the prosecution of larceny: Wooden planks, “badly made” shoes, and nondescript ducks might well be too commonplace for property owners to identify credibly at trial as their own.28
This is not to suggest that, in the struggle between ownership and acquisition, property owners simply capitulated. As Peter King has revealed in his magnificent study of crime and criminal justice administration in eighteenth and early nineteenth century Essex, coal owners might lace their coal piles with colored beans and farmers might insert “specially knotted string” into their hay bales to assist the materials’ identification should they be purloined.29 But King’s evidence also reveals a sobering fact: These primitive forms of surveillance seldom generated prosecutions, triggering only 2.2 percent of prosecutions for larceny tried at the Essex Quarter Sessions in which a particular method of detection could be identified.30 Even the considerable resources of the English state could be frustrated by thieves intent on disguising the true ownership of stolen goods. Although the Crown, by the latter decades of the eighteenth century, required suppliers of cordage to mark it with “a white thread, laid the contrary way” and suppliers of bolts to mark them with “the King’s Arrow,” such designations could “easily be removed” by enterprising pilferers.31 By contrast, pieces of coal, scraps of wood, or bits of metal would have been virtually impossible for property owners even to attempt to mark effectively as their own.
Proving the Corpus Delicti of Larceny Contemporary observers understood perfectly well that victims of theft might face difficulties in proving that defendants had engaged in larcenous acts. In his influential three-volume treatise on the law of evidence first published in 1824, Thomas Starkie noted that, in cases alleging larceny, “the caption and asportation can seldom be directly proved by an eye-witness” and, thus, “presumptive [i.e., circumstantial] evidence must in general be resorted to” by the prosecution. Starkie further recognized—again, quite realistically—that “[t]he most usual and cogent evidence [of the defendant’s wrongdoing] consist[ed] in proof of the prisoner’s possessionof the stolen goods.”32
So much seemed clear. Unfortunately for prosecutors, the mere fact that a defendant had been apprehended with goods suspected to have been stolen might pay few benefits at trial. From the late seventeenth well through the nineteenth century, legal commentators urged that, to support a conviction for larceny, the prosecution should first be required to prove what modern lawyers call the “corpus delicti”—that is, that the goods found in the defendant’s possession had indeed been stolen from someone. As Starkie counseled, “a prisoner ought not to be convicted of stealing the goods of a person unknown, upon such [presumptive] evidence, without proof that a felony [had] actually been committed.” Put differently, “mere evidence of the possession of property by the prisoner, for which he cannot account, without evidence to identify it with thatproved to have been stolen, [was] insufficient” to establish guilt.33
The corpus delicti rule applies in virtually all modern Anglo-American jurisdictions, though it possesses by now a distinctly musty odor.34 Legal scholars care little about the doctrine and know even less about its historical origins.35 Commentators typically assert that the doctrine sought to prevent the wrongful convictions of defendants who had confessed to crimes that they had not, in fact, committed. In the words of one recent judicial decision, “the English corpus delicti rule . . . served the limited function of ensuring that a defendant could not be convicted of a crime to which he had confessed if that crime never occurred.”36 In truth, English legal commentators from the late seventeenth century onward urged that the prosecution be required to prove the corpus delicti not only in cases where defendants had confessed, but in all instances in which prosecutors sought to rely upon certain types of presumptive evidence. Significantly, the type of presumptive evidence considered most dubious was the suspect’s unexplained possession of goods found in his or her possession.
We can get a sense of the distrust for this particular type of evidence from Matthew Hale’s Pleas of the Crown, written in the late seventeenth century but published in the 1730s. Hale warned that “[he] would never convict any person for stealing the goods cujusdam ignoti [i.e., of an unknown person] merely because [the defendant] would not give an account of how he came by them, unless there were due proof made, that a felony was committed of these goods.”37 To support this strict rule, which Hale urged that judges apply in prosecutions alleging either murder or larceny, he cited to a pair of cases in which defendants tried for homicide had been convicted and hanged—only to have the alleged victims turn up alive after the executions.38
In his Commentaries, published several decades later, William Blackstone praised the “two rules” identified by Hale that were “most prudent and necessary to be observed:”
1. Never to convict a man for stealing the goods of a person unknown, merely because he will give no account of how he came by them, unless an actual felony be proved of such goods: and, 2. Never to convict any person of murder or manslaughter, till at least the body be found dead; on account of two instances [Hale] mentions, where persons were executed for the murder of others, who were then alive, but missing.39
Indeed, it was only at this important juncture of the Commentaries that Blackstone expressed the maxim that would be remembered, over time, only in part: “[A]ll presumptive evidence of felony should be admitted cautiously: for the law holds, that it is better that ten guilty persons escape, than that one innocent suffer.”40 Early nineteenth century commentators on the law of evidence echoed the views of Hale and Blackstone, urging that prosecutors be required to prove that the goods found in a defendant’s possession had actually been stolen.41
Of course, we must not assume that the pronouncements of legal commentators described actual practice in the criminal courts. As John Henry Wigmore observed, although English judges in the late eighteenth and early nineteenth centuries exhibited “some indication of a willingness to erect Lord Hale’s caution into a definite rule of law,” they ultimately came to view the corpus delicti doctrine as “nothing more than a general expression of caution, not a definite rule.”42 With that said, English judges periodically acted upon such caution into the nineteenth century in directing verdicts of acquittal—even when proof of the defendant’s wrongdoing seemed compelling. In Reginav. Dredge (1845), for example, a shopkeeper in London who owned a large toy shop apprehended a boy carrying a doll, six toy houses, and other items suspected to have been stolen. At trial, the shopkeeper narrated the facts of the boy’s apprehension, described how the items had been concealed under the boy’s smock, and asserted, for good measure, that the doll found on the boy displayed the owner’s “private mark.” Despite this showing, Mr. Justice Erle acquitted the child, after concluding that the corpus delicti had not been established and “for all that appeared, the prisoner might have come by the property in an honest manner.”43Although we should not read too much into this case—where the corpus delicti rule appears to have been invoked to spare a youthful offender—such decisions served, yet again, as dispiriting reminders of the challenges of proving larceny in the higher courts.
Overcoming the Limits on Presumptive Evidence Even if a prosecutor managed to prove the corpus delicti, he or she might still be unable to exploit this evidence at trial to the extent anticipated or wished. By the early decades of the nineteenth century, a body of law had developed in both England and America that limited the evidentiary uses to which the fact of a defendant’s unexplained possession of stolen goods could be put. Although articulated in various ways, the basic legal rule held that the burden of proof could be transferred from the prosecutor to the defendant only if the prosecutor first showed that the defendant had “exclusive and unexplained possession” of stolen property “recently after the theft.”44
These requirements could have serious consequences even in cases that might initially have seemed airtight. In Rex v. Adams, a prosecution for larceny tried at the Hereford Assizes in 1828, Joseph Powell charged the defendant, Charles Adams, with stealing an ax and other tools. Powell managed to prove at trial “that he [had] missed the tools on a certain day,” while a second witness established that the tools had been found “in the possession of the prisoner three months after they were missed”—a showing that seemingly established the corpus delicti. Despite this proof, the presiding judge, Baron Parke, entered a directed verdict of acquittal “without calling on the prisoner for his defense,” noting that “possession of stolen property three months after it was lost, was not such a recent possession as to put the prisoner upon [showing] how he came by it, unless there was evidence of something more than the mere fact of the property being in his possession at that distance of time after the loss of it.”45 Hence, even in evidentiary circumstances that might have appeared damning, defendants accused of larceny might slip through prosecutors’ hands.
Proving Larceny to the Petty Jury Prosecutors faced additional challenges in securing convictions for larceny. By the late eighteenth century, the seemingly simple elements of larceny had become entangled in a thicket of case law characterized by maddening distinctions between “personal property” (which came within the law of larceny) and “real property” (which did not); horses (which did) and dogs (which did not); and plants cut and severed from the earth (which did) and those still in the ground (which did not). Prosecutors who failed to negotiate these tortuous distinctions likewise faced the prospects of having their cases founder.46
We must be careful, of course, not to overstate the degree to which prosecutions in cases of larceny raised these types of legal niceties. Because criminal trials in the late eighteenth and early nineteenth centuries remained speedy affairs and most defendants continued to lack counsel, many outcomes probably turned not on legal issues but, instead, on the jurors’ assessment of the character of the defendant, the motivations of the prosecutor, the credibility or social status of the witnesses, or the perceived severity of the possible sentence.47 Moreover, although our knowledge of proceedings in courts of quarter sessions remains incomplete, it seems doubtful that the JPs who staffed those courts exhibited anywhere near the same degree of legal punctiliousness as did the judges who presided at the Old Bailey.48
What cannot be doubted, though, is that prosecutions for larceny brought before juries (and judges) confronted highly uncertain prospects. As John Beattie’s evidence from Sussex and Surrey demonstrates, trial juries returned verdicts of “not guilty” in approximately 35 percent of cases involving property offenses during the latter decades of the eighteenth century.49In a significant percentage of cases, therefore, the investments of private prosecutors yielded disappointing results.
II. Criminal Procedure in the Police Offices
of Early Nineteenth Century London Consider, by contrast, the experiences of two persons tried for larceny-related offenses in the mid-1830s in the police offices of metropolitan London. On October 24, 1836, Thomas Murray, a self-styled metal dealer, appeared before the attending magistrate at the Thames Police Office at Wapping New Stairs, on the north side of the Thames near Execution Dock.50 Officers had arrested Murray and a man named Edward Bloxham in the parish of Saint Giles with 400 pounds-weight of lead in their possession, which had apparently been “doubled up and beaten together in such size and shape as to be carried . . . under the clothes,” suspended there “upon a belt fastened round the body or . . . from the braces [i.e., suspenders] or neck.” According to the magistrates at the Thames Police Office, this technique of transforming lead into “plumbers’ pins” was favored by “workmen” who pilfered lead from “all premises” in the metropolis where “works [were] in progress.”51
When Murray appeared at the police office, the attending magistrate, Thomas Clarkson, instructed him to demonstrate “not only that he had purchased [the lead] but also that it [had] been bought under such circumstances as would remove the suspicion attached to it.”52 According to the clerk’s transcript of the proceeding, Murray provided the following response:
I do a deal of business in the lead trade. I can’t speak to every piece of it. I purchased it in the way of trade of Master plumbers in exchange—If a plumber comes to me for a 6 wt. [?] of sheet he has it and I take some in exchange. I sometimes change 3 or 4 tons in a week—the large piece of pipe I bought [from] Mr. Buckingham. With respect to the nails [i.e., “plumber’s pins”?] I don’t know much about [that], I am not versed in that sort of thing.53
Unimpressed with this explanation, the magistrate summarily convicted Murray and sentenced him to a £5 fine, noting that he had “passed very lightly over the strong points of the case against him.”54
In late-December 1837, in turn, police officers in eastern London entered the home of John William Adams, a silk-weaver living at 31 Spital Street, Mile End New Town.55 Acting pursuant to a search warrant, the officers discovered there “Three Pounds weight of unwrought Silk of different colours . . . and One Hundred and forty Wooden Bobbins, being Tools and Implements with which Persons are entrusted for manufacturing Silk Materials, . . . suspected to be purloined and embezzled.” The arresting officers promptly brought Adams and the materials that they had discovered before the police magistrates in attendance at the Worship Street Police Office in Shoreditch.
After no individual came forward to claim the materials, the magistrates remanded the case for a week “to give [Adams] time” to “prove” how he had become possessed of the goods. Not surprisingly, Adams then undertook concerted efforts to establish his lawful possession of the materials in question. As he later recounted, he first “aplied to one of Whom he [had] bought some portion [of the silk] and [the seller] readley Came Forward.” With this witness in hand, Adams “then aplied to the Other [seller],” who stated that “the invoice [that allegedly recorded the sale] was Sufeiscint but Come he Would if Sent For.”56With his evidence assembled, Adams appeared before the police magistrates ten days after his arrest. Noting that no person had yet claimed the property as its rightful owner, the magistrates again called upon Adams to demonstrate “how he became poss[ess]ed” of it. Although Adams diligently “put in his invoiceses [i.e., invoices] for one part and called persons to prove the Other,” the magistrates summarily convicted him after he failed to produce “persons to prove the bills [i.e., the ‘invoiceses’].”57The magistrates then sentenced Adams—a first-time offender—to a £20 fine or a one-month stint in the house of correction in default of payment.58
How typical were the cases of Murray and Adams? On the one hand, their experiences were exceptional because they were among a relatively small fraction of persons convicted summarily who petitioned the Home Office for post-conviction relief, and did so with relative success—in so doing, creating reasonably extensive written records of their proceedings.59 On the other hand, their experiences resembled those of thousands of persons tried and convicted in the police offices of London for petty appropriation in the early decades of the nineteenth century.60
How did magistrates in London justify a system of summary justice that dispensed with private prosecutors and juries, and that placed such extensive pressures on suspects to “account” for possession? In a letter to the Home Office in December 1836, the magistrates at the Thames Police Office defended summary proceedings in the following way:
Convictions rest in such cases not solely as [the defendants] would have it appear [i.e.,] upon the testimony of Officers who receive a part of the penalties when the facts sworn to by them are undisputed[,] but principally upon the account given by the parties charged before the Magistrate of the property seized[,] who have it always in their power to account for the possession if they can do so satisfactorily.61
In the case of Thomas Murray, the magistrates justified the conviction because the suspect “did not dispute the fact of possession nor the suspicious marks and appearances” on the lead, had provided “a very vague and indistinct account of the manner in which he came by [the lead] without naming the persons of whom he bought or received it,” and had failed to request an adjournment in the proceedings at the police office to permit witnesses to testify.62The police magistrate Patrick Colquhoun expressed things more pithily: Under statutes that conferred summary jurisdiction and that required suspects to “account” for possession, “the Examination of the Delinquent” provided all the evidence necessary to secure conviction.63
The “Bloodless” Code and Statutory Presumptions of Guilt To understand the cases of Murray and Adams, we must first come to terms with the body of statute law that authorized magistrates to adjudicate summarily certain forms of petty theft. As Norma Landau has demonstrated, Parliament dramatically increased the number of offenses over which magistrates could exercise summary jurisdiction between the 1660s and the 1770s, from roughly 70 to over 200—a legislative output that, in its sheer magnitude, rivaled the scope of England’s more infamous “Bloody Code.”64
In 1762, for example, Parliament enacted the so-called “Bumboat Act,” designed to deter the “many ill-disposed persons, using and navigating upon the river Thames certain boats commonly called bum boats, and other vessels” who, “under pretence of selling liquors, . . . slops, tobacco, brooms, fruit, greens, gingerbread, and other such-like wares and things” to “seamen and labourers,” attempted “to cut, damage, and spoil the cordage, cables, buoys, and buoy ropes” of ships and to “fraudulently carry away the same.” The statute instructed constables and watchmen to “cause to be apprehended and detained, all and every person and persons, who may reasonably be suspected of having or carrying, or in any way conveying, any ropes, cordage, tackle, apparel, furniture, stores, materials, or any part of any cargo or lading, stolen or unlawfully procured from or out of any ship or vessel” on the Thames. Officers who apprehended persons in these circumstances were to convey the suspects before a Thames-area JP, and if the suspect failed to “produce the party or parties from whom he . . . bought or received the [goods], or some credible person, to depose upon oath the sale or delivery thereof, or [failed to] give an account, to the satisfaction of such justice or justices, how he . . . came by the same,” he was to be convicted by the magistrate of a misdemeanor, fined 40 shillings or, in default of payment, be sentenced to a one-month term of imprisonment.65
Parliament also passed several measures during the eighteenth century that authorized magistrates to adjudicate summarily cases involving the misappropriation of textile materials. In 1777, for example, Parliament passed an act designed to prevent “frauds and abuses by persons employed in the manufacture of hats, and in the woollen, linen, fustian, cotton, iron, leather, fur, hemp, flax, mohair, and silk manufactures.” The measure authorized magistrates to grant warrants to search dwelling houses, yards, gardens, and other places for materials suspected to have been “purloined and embezzled.” Officers who discovered suspicious textile materials in these locations were instructed to bring the suspect before a pair of magistrates for questioning. If the suspect failed within a “reasonable time” to “produce the person or persons duly [e]ntitled to sell or dispose of” the materials in question, or “some one or more credible witness or witnesses to prove the sale or delivery thereof,” the magistrates could convict the suspect of a misdemeanor and sentence him or her—if a first-time offender—to a fine of up to £20 or, in default of payment, to a one-month term in the local house of correction.66
Of course, as the scholarship of Beattie, Joanna Innes, and Paul Griffiths has shown, magistrates in London, by the seventeenth and early eighteenth century centuries, already exercised broad summary jurisdiction over petty pilferers—routinely sentencing them to short stints in Bridewell or in local houses of correction.67 Given this long-standing magisterial jurisdiction over “pilferers” and “idle and disorderly persons,” why did Parliament pass additional statutes during the course of the eighteenth century that conferred summary jurisdiction over specific forms of misappropriation? And, irrespective of their origins, did these newly-enacted statutes alter the day-to-day experience of constables, magistrates, and persons who might come within their legislative ambit?
Because of the nature of the surviving legislative sources, the first question is difficult to answer with assurance.68 Statutes such as the Lead and Iron Act, passed by Parliament in 1756, may have been viewed as correcting certain loopholes in the law of larceny relating to fixtures.69 As the eighteenth century progressed, magistrates may have experienced increasing unease about lumping persons of “low-to-middling” status—persons like Murray or Adams—among the vagrants or petty “pilferers” who were the traditional targets of informal summary committals. So too, Parliamentarians, magistrates, and legal commentators may have desired to place summary proceedings on a more solid legal footing by furnishing specific statutory bases for summary convictions.70And property owners may have lobbied for statutes criminalizing certain forms of misappropriation even if the behavior newly “criminalized” already fell within existing magisterial authority.71
The state of the surviving records relating to summary proceedings also makes it difficult to assess the quantitative impact of statutes conferring summary jurisdiction over certain forms of misappropriation. Calendars of convictions in the London Metropolitan Archives for the periods 1774-86, 1787-93, and 1794 reveal the unsurprising fact that magistrates in Middlesex frequently exercised summary jurisdiction over a wide range of theft-related offenses, including the unlawful possession of tobacco, metal, hemp, and various foodstuffs.72 Although prone to exaggeration, the police magistrate Patrick Colquhoun estimated in 1800 that magistrates in London had convicted 2,500 defendants under the Bumboat Act since its passage in 1762, resulting in fines exceeding £6,000.73
In the early decades of the nineteenth century, Parliament both simplified and broadened the summary jurisdiction of magistrates in larceny-related cases. By the time that Murray and Adams were convicted in the mid-1830s, eighteenth-century statutes conferring summary jurisdiction such as the Bumboat Act had been largely folded into the Larceny Act of 1827 or, in London, into the various “police acts” that defined the broad authority of London’s police magistrates. By the mid-1830s, police officers and magistrates in London interpreted the then-current version of the Police Act (the Police Act of 1833) to include three categories of offenders against whom “a charge of larceny [was] implied:” (1) persons “found conveying goods suspected to have been stolen, and giving no satisfactory account of them;” (2) persons “found upon search warrant in possession of property suspected to be stolen, and giving no satisfactory account;” and (3) persons “appearing to have had prior possession of property suspected to be stolen, and having had reason to suspect it to have been stolen.”74
Metropolitan police magistrates also came to rely heavily on another statute with eighteenth-century roots: the Vagrancy Act of 1824. Under that measure, English JPs could convict summarily any “suspected person or reputed thief, frequenting any river, canal, or navigable stream, dock, or basin, or any quay, wharf, or warehouse near or adjoining thereto, or any street, highway, or avenue leading thereto, or any place of public resort . . . with intent to commit felony,” and sentence the convicted offender to a three-month term in the house of correction at hard labor.75As the police magistrate James Traill observed in a submission to a Parliamentary subcommittee in 1837, this broad authority over “suspected persons” and “reputed thieves” provided magistrates with “extraordinary powers” by permitting them “to infer a felonious or criminal intention from circumstances, though no act is proved.”76
By the 1830s, when more complete statistical records from the metropolitan police offices become available, the extensive reach of summary proceedings in London had become clear: In 1836, by way of example, the Thames police magistrates convicted 709 of the 903 persons charged with misdemeanors under the Police and Vagrancy Acts – a conviction rate of nearly 80 percent.77 By this time, convictions at the Thames Police Office under these two statutes outnumbered committals of persons to stand trial for all types of felony by a factor of more than four-to-one.78 IV. The Prosecutorial Benefits of Summary Proceedings Although historians have attempted to relate responses to petty theft in eighteenth century England to broader shifts in the organization of the workplace or the ideology of property, such explanations, to date, have not explained adequately why criminal justice administrators resorted so often to summary proceedings.79One important answer can be found in the operation of the criminal law itself. Quite simply, statutes that conferred summary jurisdiction upon magistrates and placed the burden on suspectsto “account” for goods in their possession addressed all of the principal problems of proving larceny that we have identified previously.
Solving the Problem of Property Identification Recall for a moment the hapless prosecutor James Richardson, who failed to convince a jury at the Old Bailey that he owned a piece of wood found in a defendant’s possession after claiming that “there [was] no such thing in London” that could be mistaken for his lowly plank. This inability to prove ownership no doubt proved frustrating to Richardson. But compare his predicament to that of a laborer found with wood in his possession and prosecuted under the Wood Act of 1766, a statute—like the Lead and Iron Act or the Bumboat Act—that required suspects to “account” for materials found in their possession.80 A suspect’s anxiety might have been particularly acute if the wood had indeed been stolen. But an individual brought before a magistrate might also have faced dim prospects if the wood found in his or her possession had been acquired legally. Even if the actual seller of the wood could, in theory, document the underlying sale, the seller might still be unwilling to undertake the trouble of supplying invoices or appearing before a magistrate to testify. Furthermore, although experienced merchants in London in the late eighteenth century documented significant commercial transactions through the use of “bills of parcels,” “receipts,” or other written memorials, it seems unlikely that the types of modest purchases, gifts, or loans employed by the lower classes to obtain their day-to-day goods would have been documented in such a scrupulous manner.81 In instances where the suspect had acquired wood or other materials based on a notion of customary entitlement, of course, it is doubtful that any “official” documentation would have existed at all.
Solving the Problem of Defense Counsel As a general matter, resort to summary proceedings also diminished the influence of defense counsel. At the Old Bailey, as we have seen, skilled defense counsel could undermine claims to ownership made by victims of theft, especially in cases where the property alleged to have been stolen was nondescript—as it often was—and was thus difficult for prosecutors to identify. Triumphs of cross-examination did not characterize the world of the urban police office. In such settings, the fates of defendants rose—and, more typically, fell—on their own primitive forensic abilities.
Admittedly, in what Langbein has aptly termed the “accused speaks” trial, a defendant in a higher court charged with larceny who made no effort to “explain away” the prosecution’s evidence of wrongdoing traditionally faced a strong likelihood of conviction.82 Nonetheless, the emergence of defense counsel in the 1730s, and their increased presence and activity at the Old Bailey in the ensuing century, meant that lawyers gradually took over from the accused the defensive functions at trial and increasingly protected their clients from serving as testimonial resources.83 Although defense counsel technically could not comment on the evidence or provide the defendant’s explanation of the facts until the passage of the Prisoner’s Counsel Act of 1836, the ability to cross-examine witnesses and to raise legal arguments to the court increasingly meant that a defendant stood a realistic chance of being acquitted without ever opening his or her mouth.84 In a related vein, although felony defendants remained “pressured” to speak at trial “so long as the beyond-reasonable-doubt standard lacked formulation,” clearer judicial statements of the burden of proof “beyond a reasonable doubt” in the later decades of the eighteenth century arguably created a more certain standard against which the prosecution’s case could be tested for purposes of a directed verdict of acquittal.85
More research needs to be done on the evolution of jury charges, the development of the concept of the prosecution’s “case,” the role of the directed verdict of acquittal, and the extent to which defense counsel truly “silenced” criminal defendants in the century or so after the first appearance of defense counsel at the Old Bailey in the 1730s. However, we cannot ignore the comment of the French observer Cottu who, in describing English trial procedure in 1820, stated famously that “the defendant acts no part” and that the accused’s “hat stuck on a pole might without inconvenience be his substitute at the trial.”86 Speaking broadly, whereas defense counsel at the Old Bailey frustrated prosecutions by quieting their clients, defendants in the police offices frequently convicted themselves through their own fumbling words or awkward silences.87 Solving the Problem of the Corpus Delicti As we have seen, legal commentators from the 1680s through the early decades of the nineteenth century expressed serious concerns that defendants accused of larceny might be wrongfully convicted and punished based on “presumptive evidence” of guilt, particularly in instances where prosecutors sought to rely on defendants’ unexplained possession of goods alleged to have been stolen. To guard against this risk, as we have seen, commentators urged fidelity to the corpus delicti rule in cases of larceny.
As has been suggested above, certain English judges, by the mid-nineteenth century, appear to have been disinclined to direct verdicts of acquittal in cases of larceny based on alleged failures to prove the corpus delicti. For example, in Rex v. Burton, decided in 1854, Mr. Justice Maule rejected the argument of defense counsel that his client could not be properly convicted for the theft of pepper found in the defendant’s pocket because it was impossible to establish that the pepper had been stolen from the prosecutor’s large warehouse. In the justice’s words, “[i]f a man go into London Docks sober . . . and comes out of one of the cellars very drunk, wherein are a million gallons of wine, I think that would be reasonable evidence that he had stolen some of the wine in that cellar, though you could not prove that any wine was stolen or any wine missed.”88 Although counsel argued strenuously that “Lord Hale . . . [had] laid down” that “the ‘corpus delicti” must be proved,” the court rejected the claim, arguing—incorrectly, it should be noted—that Hale urged the application of the rule “[o]nly as a caution in cases of murder.”89
At first blush, the Burton case seems to suggest that at least some English judges rejected the notion that prosecutors in cases of petty theft should be required to prove the corpus delicti of larceny—at least in cases where a defendant’s guilt appeared virtually certain. With that said, the fact that defense counsel saw fit to vigorously pursue this line of argument well into the 1850s suggests that arguments based on the doctrine could still be credibly made. Such an argument would have made no headway in the grimy, busy confines of a metropolitan police office—not in the 1850s, and not a century earlier. Whereas prosecutors in cases of larceny ultimately needed to prove that goods had been stolen, suspects tried summarily needed to demonstrate that those same goods had not.
Solving the Problem of the Limits on Presumptive Evidence As we have seen, English judges also developed a body of rules in the nineteenth century that limited the ways in which a suspect’s unexplained possession of goods shown to have been stolen could be used by the prosecution at trial. Prosecutors in such cases faced the risk of a directed verdict of acquittal unless they could demonstrate that the goods had been held recently and exclusively by the defendant.
Although the surviving records relating to summary proceedings are spotty, it seems doubtful that magistrates in the bustling police offices considered such issues in passing on the fates of suspected thieves who appeared before them. On occasion, and increasingly in the 1830s, lawyers seeking to practice in the police offices might seek to press defendants’ claims or to focus post-conviction scrutiny on magisterial decision-making.90But these challenges seldom seem to have focused on narrow legal issues and, at any rate, occurred too late in our period and too episodically to have altered dramatically the nature of magisterial practice in the police offices in the period before 1850.
Solving the Problem of the Petty Jury By permitting convictions to be based on suspects’ mere possession of suspicious goods, statutes that required defendants to “account” for possession also “watered down” the elements of the common law of larceny and made convictions significantly easier to obtain.91 Most importantly, by focusing on the physical manifestation of the alleged offense—possession of the goods—rather than on the criminal acts themselves, prosecutors relieved themselves of proving the vexing elements of “caption” or “asportation.” Tellingly, the statute that established the metropolitan police offices in 1792 eroded the actus reus requirements of larceny still further. So-called “Clause D” of the Middlesex Justices Act of 1792 permitted police magistrates to convict summarily “persons of evil fame” and “reputed thieves” upon the oath of one or more “credible witnesses” if “there [was] just ground [for the magistrate] to believe that such person” was in an “avenue, street, or highway” with intent to commit a felony and the suspect was unable “to give a satisfactory account of himself . . . and of his way of living.”92
Over time, Parliament further curtailed the role of the jury by enacting measures in 1847, 1850, and 1855 that extended summary jurisdiction to magistrates over all simple larcenies under the value of 5 shillings.93 The profound implications of this transfer of decision-making authority from judges and juries to magistrates can only be broached briefly here. However, a comparative perspective on the issue is illustrative. In State v. Hodge (1869), the New Hampshire Supreme Court, after reviewing the law in both England and America relating to a defendant’s recent possession of stolen goods, concluded that “the presumption that a defendant was guilty based on possession of suspicious goods was purely an issue of fact, which, according to our practice, [should] be drawn by the jury, and not by the court.”94 Moreover, in America, as the Hodge court made clear, the state ultimately needed to carry its burden of proof, even in cases in which defendants had been detected with stolen goods in their possession:
If the jury found the defendant had the property in his possession after it was stolen, that fact was evidence against him. If they found an absence of explanatory evidence on his side, under circumstances that tended to show he could furnish such evidence, that fact was additional evidence against him. But if those facts were found, there was no presumption of law, nor was the burden of proof shifted . . . . The State had the affirmative, and the burden of proof which belongs to the affirmative.95
In England, under statutes that required suspects to “account” for possession, the state had been relieved of this considerable burden long ago.96
V. The Presumption of Innocence: Then and Now In March 1821, the three police magistrates assigned to the Thames Police Office submitted a letter to the Home Secretary, Lord Sidmouth, stressing the great importance of their summary jurisdiction over petty thefts and calling for further simplification and expansion of this authority. The magistrates observed that “offenders” had been brought before them “[eight] or [nine] times in the course of the last three years with stolen property in their possession” and that, “notwithstanding the utmost diligence,” the magistrates would have been unable “to obtain Evidence enough to convict them of a felony . . . and [the suspects] must have been discharged without punishment every time but for [the magistrates’] powers of summary conviction.” Among these “powers,” the magistrates singled out for special praise the clauses of the Thames Police Act setting forth their summary jurisdiction over “suspected Persons and reputed Thieves,” persons “opening and breaking Casks, Bags and other Packages,” and persons intentionally “letting fall” or throwing various types of goods into the Thames. According to the police magistrates, these clauses were necessary because of the challenges of detecting thieves operating on and near the Thames, the difficulty of proving the loss or identity of the types of goods typically stolen there, and the fact that mariners often refused to delay their voyages to attend trials.97
Although summary proceedings provided several comparative advantages to criminal justice administrators over proceedings in the higher courts—including promptness, cheapness, and predictability—their evidentiary benefits were especially striking. Writing in 1800, Patrick Colquhoun observed that a “leading object” of the measure establishing the Thames Police Office in 1800 was to permit magistrates exercising jurisdiction over the Thames “[t]o inflict slight Penalties by summary Procedure on circumstantial Evidence, aided by the Examination of the Delinquent (as under the Bumboat Act, and stolen-metal act [i.e., the Lead and Iron Act]. . . where, on regular proof, it would be Felony;)—and to attach upon the Practice of Depredation, in such stages of its progress as are previous, or subsequent to the Felonious Act.”98For his part, James Traill conceded that his fellow police magistrates in London routinely convicted suspects in summary proceedings upon “less conclusive evidence” than was needed to secure convictions in the higher courts, a state of affairs justified by “the lesser alleged offence of which [the suspect] [was] to be summarily convicted.”99
Not all observers supported extending criminal jurisdiction to metropolitan magistrates and lowering the evidentiary standards required to convict persons of theft. Speaking in the House of Commons in 1792, the Whig MP William Windham stated that the clause in the Middlesex Justices Bill that permitted magistrates to convict summarily “suspected persons” and “reputed thieves” “reversed the usual order of things” by permitting men to be convicted “not for acts which they committed, but for those which they intended to commit.”100 According to the Whig Charles James Fox, no criminal violation could exist “that could not be proved:”
It was on this principle, that every man in England was declared innocent, until he was pronounced by law to be guilty. Had these men committed a felony or not? If they had, bring them to a court of judicature, prove their guilt, and pronounce them guilty. But we cannot prove them guilty!—then by law, they are innocent.101
As Fox observed, permitting magistrates to convict persons based on mere “suspicion” or “reputation” “reversed the fundamental principle of the criminal law of England—That innocence must be presumed where guilt cannot be proved.”102
It is rare to find references to the presumption of innocence in eighteenth-century English criminal cases, with only one such allusion in the Old Bailey Session Papers between 1714 and 1799.103Although it was seldom articulated, the presumption appears to have developed contemporaneously with the concept of the prosecutorial burden of production and the burden of proof “beyond reasonable doubt.”104 Moreover, while it is difficult to disentangle rhetoric from legal theory, Whig critics of summary proceedings in the early-1790s appear to have possessed an understanding of the presumption of innocence that included two central elements of our modern-day notion: first, that the prosecution is required to produce evidence of certain criminal acts, and, second, that prosecutions that fail to meet the requisite evidentiary burden should result in acquittals.
Statutes that permitted magistrates to convict summarily persons who failed to “account” satisfactorily for possession (as well as “suspected persons,” and “reputed thieves”) relieved prosecutors of the burden of producing evidence with respect to a defendant’s actions, as well as proof that the goods in the defendant’s possession had indeed been stolen. Accordingly, it is difficult to take issue with the claim that such statutes essentially placed “the burden of proof . . . on the accused, reversing the normal relationship between prosecutor and defendant in later eighteenth-century English law.”105 What is equally striking, as we have seen in the cases of Murray and Adams, is that statutes that required suspects to “account” for possession not only required suspects to produce evidence supporting claims to lawful ownership but also appear to have placed the burden on them to persuade the fact-finding magistrates as well. To modern eyes, the evidentiary regimes created by these statutes came close to requiring suspects “to establish innocence,” a burden at odds with even the weakest conception of the modern-day presumption of innocence.106
This is not the only aspect of summary proceedings that appears anomalous to the modern eye. There seems little doubt that a lower quantum of proof was necessary to secure convictions for larceny-related offenses in summary proceedings than in the higher courts. Indeed, it is difficult to square the modest evidentiary showing required to support convictions in summary proceedings with the notion that prosecutors in England by the late 1790s were required to establish proof “beyond a reasonable doubt.”107Although it is, of course, impossible to calibrate what amount of evidence was deemed sufficient to justify conviction by the magistrates who tried Murray and Adams, the amount of evidence was surely less than that necessary either to survive a motion for a directed verdict of acquittal at the Old Bailey or to convince a petty jury of guilt in a typical case of simple larceny. Indeed, Colquhoun essentially acknowledged as much in arguing that magistrates should be permitted “[t]o inflict slight Penalties by summary Procedure on circumstantial Evidence, aided by the Examination of the Delinquent . . . where, on regular proof, it would be Felony.”108