Hostname: page-component-8448b6f56d-t5pn6 Total loading time: 0 Render date: 2024-04-23T16:20:37.268Z Has data issue: false hasContentIssue false
  • English
  • Français

Did the Presumption of Innocence Exist in Summary Proceedings?

Published online by Cambridge University Press:  18 August 2010

Bruce P. Smith
Get access Rights & Permissions [Opens in a new window]

Extract

Having long admired Norma Landau's pioneering work on the seventeenth- and eighteenth-century English magistracy, I am grateful to her for bringing her considerable expertise to bear on my article. Characteristically, Landau's criticism is extremely forceful. Unfortunately, the intriguing questions that Landau raises in her comment are obscured by a host of criticisms based on a misunderstanding of the claims that I advance. Landau attributes arguments to me that I do not make and ignores important ones that I do. In the process, she fails to engage with my central thesis: In summary proceedings that required suspects to “account” for materials found in their possession, the presumption of innocence did not exist.

Type
Forum: Response
Information
Law and History Review , Volume 23 , Issue 1 , Spring 2005 , pp. 191 - 199
Copyright
Copyright © the Board of Trustees of the University of Illinois 2005

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

1. See Landau, Norma, “Summary Conviction and the Development of the Penal Law,” Law and History Review 23 (2005): 173–189CrossRefGoogle Scholar . For a recent expression of my admiration for Landau's “ambitious reconstruction of the murky world of the London-area ‘trading justices,’;” see Bruce P. Smith, review of Law, Crime and English Society, 1660–1830, ed. Landau, Norma, Law and History Review 22 (2004): 649Google Scholar.

2. See Smith, Bruce P., “The Presumption of Guilt and the English Law of Theft, 1750–1850,” Law and History Review 23 (2005): 134, 135.CrossRefGoogle Scholar

3. Ibid., 136.

4. Landau, “Summary Conviction,” 174, 188.

5. Ibid., 176. Of course, I acknowledge as much when I refer to the dramatic expansion of summary jurisdiction beginning in the 1660s and cite to Landau's own scholarship in support of the proposition. See Smith, “Presumption of Guilt,” 154 and n. 69 (citing Norma Landau, The Justices of the Peace, 1679–1760 [Berkeley: University of California Press, 1984], 246).

6. Landau, “Summary Conviction,” 176.

7. Smith, “Presumption of Guilt,” 156–57 (internal citations removed).

8. Landau, “Summary Conviction,” 177.

9. As I make clear in the block quotation above, “statutes such as the Lead and Iron Act, which extended summary jurisdiction to petty appropriations of metals, may have been viewed as correcting certain loopholes in the law of larceny relating to fixtures.” Smith, “Presumption of Guilt,” 157 (emphasis added).

10. In 1766, for example, Parliament passed both the Wood Act (6 Geo. III, c. 48 [1766]), which authorized summary proceedings, and an earlier measure (6 Geo. III, c. 36 [1766]), which made it a felony “to break, destroy or carry away in the night-time any roots, shrubs or plants to the value of 5s.” The statutes were ultimately “considered as one Act passed in the same session.” 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), 484–85.Google Scholar

11. Landau, “Summary Conviction,” 179 (citing the Theft Act, 4 Geo. II, c. 32 [1731] and the Criminal Law Act, 21 Geo. III, c. 68 [1781]).

12. Letter from James Traill to House of Commons Select Committee on Metropolis Police Offices, 1 December 1837, in Report from Select Committee on Metropolis Police Offices; with the Minutes of Evidence, Appendix and Index, 1837–38 (Shannon: Irish University Press, 1970), 218Google Scholar , appendix, no. 14 [hereafter “Traill Report”].

13. Landau, “Summary Conviction,”182.

14. 29 Geo. II, c. 30, § 1 (1756). Similar provisions applied to persons who “privately purchase[d] these respective metals by suffering any door, window, or shutter, to be left open between sun-setting and sun-rising” and those “buy[ing] or receiv[ing] any of the said metals in any clandestine manner.” Ibid. See also Patrick Colquhoun, A Treatise on the Police of the Metropolis (7th ed. 1806; reprint ed. [Montclair, N.J.: Patterson Smith, 1969]), 195.

15. Beattie, J. M., Crime and the Courts in England 1660–1800 (Princeton: Princeton University Press, 1986) 190Google Scholar n.101 (1986) (citing 7 & 8 Geo. IV, c. 29 [1827]). In suggesting that Adams faced no risk of prosecution at the Old Bailey, Landau apparently relies on her failure to find even “one indictment” at the Old Bailey from 1674 through 1799 “for receiving silk from an out-worker to whom it had been entrusted. …” Landau, “Summary Conviction,” 182. But this finding is not surprising given that embezzlement of textile materials did not traditionally fall within the law of larceny and that masters could resort to a series of informal sanctions to discipline their outworkers—including refusing to provide them with materials. Receivers, of course, could acquire stolen goods in many ways, including from parties who were not entrusted with such materials. Notably, the Larceny Act prescribed punishments of transportation and multiple-year terms of imprisonment for persons who stole “Goods or Articles of Silk, Woollen, Linen, or Cotton” of a specified value “whilst laid, placed, or exposed, during any Stage, Process, or Progress of Manufacture.” 7 & 8 Geo. IV, c. 29, § 16 (emphasis added). Thus, under the 1827 Act, persons charged with receiving goods from such persons would appear to have faced a very credible risk of a felony indictment.

16. Landau, “Summary Conviction,” 174.

17. See Eastwood, David, Governing Rural England: Tradition and Transformation in Local Government 1780–1840 (Oxford: Clarendon Press, 1994), 94–95CrossRefGoogle Scholar (relying, in part, on Sidney and Beatrice Webb's The Manor and the Borough (1908) in noting that “the judicial and administrative system elaborated by justices [of the peace] … effectively displaced manorial courts and other minor jurisdictions,” which gradually “lost real power”).

18. For a description of the varied responsibilities of the Trinity House Corporation, see Colquhoun, Patrick, A Treatise on the Commerce and Police of the River Thames (1800; reprint ed. [Montclair, N.J.: Patterson Smith, 1969]), 336–61.Google Scholar

19. Ibid.

20. Traill Report, 218 (emphasis added).

21. Landau, “Summary Conviction,” 188.

22. In 1837, by way of example, there were 7,639 summary committals to the house of correction at Coldbath Fields and 1,060 committals for jury trial. See 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), 415 (citing Justice of the Peace [Nov. 17, 1838]).

23. Of course, we might question whether merely tallying prosecutions provides a complete account of the impact of the criminal law on the lives of citizens. Even laws that are not enforced can profoundly affect the ways that persons structure their lives. On this theme, see Ryan Goodman, “Beyond the Enforcement Principle: Sodomy Laws, Social Norms, and Social Panoptics,” California Law Review 89 (2001): 643–740CrossRefGoogle Scholar (demonstrating how even anti-sodomy statutes that are not enforced can affect individual identity and social relations).

24. Compare Landau, “Summary Conviction,” 183 (citing Colquhoun, Treatise (River Thames), 43) with Colquhoun, Treatise (River Thames), 47 (“The Bumboat convictions have exceeded 2500 since the Act was put in force, and the penalties and forfeitures could not amount to less than six to seven thousand pounds”).

25. Compare Landau, “Summary Conviction,” 184 with Norma Landau, “The Trading Justice's Trade,” in Law, Crime and English Society, 66 (noting that, from October 1773 to December 1786, only 1,375 convictions were reported—“a suspiciously low average of just 26 convictions every three months”).

26. Landau, “Summary Conviction,” 174 (“indiscriminate”), 184 (“draconian”).

27. Ibid., 183 (emphasis added). To the contrary, my concluding paragraph suggests that such impositions were disproportionately borne by “the laboring poor.” Smith, “Presumption of Guilt,” 171. I do not know what to make of Landau's claim that “the wool entrusted to an out-worker to weave into cloth was very much finer than the wool we [now] use for knitting”—a claim apparently designed to show that Georgian London's material culture was more distinctive or variegated than I imply. Landau, “Summary Conviction,” 184–85. Although I am no expert in such matters, I have little reason to doubt that the wool used to knit modern-day sweaters differs from that used in eighteenth-century looms. But my claim is not that the wool of today resembled that of the eighteenth century. Instead, my point is that the wool, wood, metal, and rope in common currency in eighteenth-century England was difficult at the time for owners to identify and for possessors to “account for” satisfactorily. Indeed, if such items were not difficult to identify, why did their owners take such efforts to try to mark them distinctively as their own? I would need to hear considerably more from Landau to be convinced that the wool, wood, metal, and rope found in the possession of suspected thieves truly differed substantially from such items found in the hands of their lawful owners.

28. I agree with Landau when she notes that indictments could be drafted at the Old Bailey that alleged theft from “persons unknown.” Landau, “Summary Conviction,” 175 and n. 5. Indeed, I make precisely the same point and cite the very same treatise for the proposition: East's Pleas of the Crown. Smith, “Presumption of Guilt,” 140 and n. 20. But I go on to suggest that prosecutions grounded on such indictments tended to fare poorly at trial because they were susceptible to directed verdicts of acquittal. Ibid, 140. On the other hand, I do not suggest that summary proceedings universally resulted in conviction: To the contrary, I observe that evidence from the Thames Police Office suggests that roughly 20 percent of summary proceedings under the vagrancy and police acts resulted in acquittals. Ibid., 159.

29. Smith, “Presumption of Guilt,” 149–54, 170–71.