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Informal Lawmaking in England by the Twelve Judges in the Late Eighteenth and Early Nineteenth Centuries

Abstract

In 1848, Parliament created the Court for Crown Cases Reserved, in which all of the common law judges heard and decided questions reserved by trial judges in criminal cases. As Sir John Baker explains, this was “a court of record, which would now sit in public and give reasons for its decisions,” even though “the reservation of cases was still at the discretion of the trial judge and the court did not have the powers of the court en banc in civil cases.”

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1. See Baker J. H. , An Introduction Into English Legal History, 4th ed. (London: Butterworths, 2002):139. The three common law courts were King's Bench, Common Pleas, and Exchequer. The number of judges varied somewhat over time, but for nearly all of the years covered by this article, each court had four judges. See Sainty J. , The Judges of England 1272–1990 (London: Selden Society, 1993) 19, 57, 103–5.

2. Baker, Introduction, 139.

3. Ibid. The assize judges were designated as commissioners to hear cases at nisi prius (the civil docket), gaol delivery, and oyer and terminer. Each of the civil cases would have originated by pleadings filed in London in one of the three common law courts, and the fiction was that each case would be heard in London on a specified day, unless before [nisi prius] that date, the case was to have been heard locally during the assizes. The criminal dockets (the Crown side), however, were local–they were not linked to a permanent criminal court in London with a country-wide jurisdiction. The Old Bailey, known today as the Central Criminal Court, only had jurisdiction over criminal cases arising in the city of London proper and in the county of Middlesex.

4. As put by Sir James Stephen, “Special verdicts are verdicts in which the jury not wishing to decide upon the law find the facts specially, referring it to the court to say whether upon those facts the prisoner is or is not guilty of the crime for which he is indicted.” Stephen J. , A History of the Criminal Law of England, 3 vols. (London: Macmillan, 1883) 1: 311.

5. In Roe, d. Hamerton v. Mitton, 2 Wils. 356, 358, 95 E.R. 856, 857 (CB 1767), Chief Justice Wilmot began his opinion with the following exasperated comments: “The question in this case is a very short one, but it is so involved and covered by the length of this special verdict, that it is more difficult to find it out than to determine it. This shameful prolixity puts the parties to an unnecessary and immoderate expence, and therefore it was that cases reserved were first introduced instead of special verdicts.” The multiple steps required for a special verdict were explained by Henry Cary as follows: “When a special verdict is found, the plaintiff's attorney generally gets it drawn from the minutes taken at the trial, and settled by his counsel or serjeant, who signs the draft. It is then delivered over to the opposite attorney, who gets his counsel or serjeant, to peruse and sign it; and when the verdict is thus settled and signed, it is left with the clerk of nisi prius … , who makes copies for each party. The whole proceedings are then entered, docketed, and filed of record; after which a concilium is moved for, a rule drawn up thereon with the clerk of the rules in the King's Bench, or secondaries in the Common Pleas, the cause entered with the clerk of the papers or secondaries, copies of the record made and delivered to the judges, and counsel instructed and heard, in like manner as in arguing upon a demurrer.” Cary H. , A Practical Treatise of the Law of Juries at Nisi Prius (London: J. & W. T. Clarke, 1826) 116. Cary then described the alternative method of having the jury return a general verdict “subject nevertheless to the opinion of the court, on a special case, stated by the counsel on both sides, with regard to a matter of law; which has this advantage over a special verdict, that it is attended with much less expense, and obtains a speedier decision.” Ibid., 117–8. With the “special case” procedure, however, “nothing appears on the record but the general verdict,” and “the parties are precluded thereby from the benefit of a writ of error, if dissatisfied with the judgment of the court upon the point of law.” Ibid., 118.

6. If the judges thought an acquittal wrong, the double jeopardy rule prevented retrial, and in any case, the twelve judges did not have authority to grant a new trial. See nn. 49–51, and accompanying text below.

7. Four editions of Leach's Reports were printed. The fourth, published in 1815, is the edition that was reprinted in the English Reports. The great majority of the cases reported by Leach were from the Old Bailey or from the assizes.

8. Russell W. O. & Ryan E., Crown Cases Reserved for Consideration; and Decided By the Twelve Judges of England From the Year 1799 to the Year 1824 (London: A. Strahan, 1825); Moody W. , Crown Cases Reserved for Consideration; and Decided By the Judges of England From the Year 1824, To the Year … [1844] (London: Saunders and Benning, 1837–44); Lewin G. A. , A Report of Cases Determined on the Crown Side on the Northern Circuit (London: S. Sweet, 1834–39).

9. East E. H. , A Treatise of the Pleas of the Crown, 2 vols. (London: A. Strahan, 1803) xiiixv.

10. Bentley D. R. , ed., Select Cases from the Twelve Judges' Notebooks (London: J. Rees, 1997) 152.

11. Ibid., 1. By “them,” Tenterden undoubtedly meant the reports that had been written out at trial of the questions reserved for deliberation and the circumstances giving rise to them.

12. For example, the first volume of the judges' notebooks was among the manuscript sources itemized by Edward East in his Pleas of the Crown.

13. See generally Bentley, Select Cases, 12–24.

14. See John Langbein's description of the atmosphere on the bench at the Old Bailey: Langbein J.H. , “Shaping the Eighteenth-Century Criminal Trial: A View from the Ryder Sources,” University of Chicago Law Review 50 (1983): 1, 31–36 (“A Collegial Trial Bench?”). In the Sessions Papers, Langbein saw evidence of “happenstance collegiality” when trials were conducted by more than one judge, but this fell far short of continental systems that he describes. As is shown by the many cases discussed in this article, the frequent and extensive deliberations of the twelve judges in felony cases at least approximated, to borrow Langbein's phrase, “a collegial bench in cases of serious crime.” Ibid., 35, 31.

15. See May A. , The Bar and the Old Bailey, 1750–1850 (Chapel Hill: University of North Carolina Press, 2003) 1617. See also The Proceedings of the Old Bailey, http://www.oldbaileyonline.org, “Judges and Juries,” “Who Were the Judges?”

16. The judges would also gather intermittently at other times. Typically they would assemble in the chambers of one of the Chief Justices, in Serjeants' Inn, in the Exchequer Chamber, or even in the home of one of the judges.

17. See, e.g., R. v. Jackson, 1 Moody 119, 168 E.R. 1208 (Old Bailey 1826); Charlton v. Hill, 5 Car. & P. 147, 172 E.R. 915 (Old Bailey 1831). As is later discussed (text at nn. 160–66, below), there was no certainty about the outcome of the twelve-judge deliberations. Results were reported in many cases, but at times the judges never reached a conclusion. Some cases never reached the printed records, although occasional manuscript reports can be located.

18. On this procedure, see Luke v. Lyde, 2 Burr. 882, 97 E.R. 614 (1759); Oldham J. , English Common Law in the Age of Mansfield (Chapel Hill: University of North Carolina Press, 2004) 29, n.65; 52–53. If the assize judge presided over a case that originated in his own court, the procedure was simple. When the case came on for argument during term time in London, the trial judge would be sitting with his three colleagues, and he would recount from his trial notes the circumstances of the case and the question reserved. Often, however, the case tried on assize was not from the assize judge's own court. For example, if a baron of the Court of Exchequer had the civil list on assize, the odds were that the nisi prius cases to be tried would have been filed in King's Bench or Common Pleas, as the volume of civil cases in Exchequer was much smaller than in the other two courts. When this happened, the assize judge temporarily assumed the mantle of a judge of the court in which the case was filed. If a legal question arose that he thought proper to reserve, he would not be present when the full Court of King's Bench or Common Pleas took up the case in London, but the assize judge would have written out a report of the facts and question raised, copies of which would have been made for the four judges on the court in which the case had been filed. These would be included in the Paper Books that were delivered to the judges when the case came on for argument the following term.

19. There was a limited option for criminal defendants in some cases – the writ of error. This, however, would require the assistance of counsel, and, as explained by Holdsworth, the writ dealt only with the formal record of a case, and as “the record took no account of some of the most material parts of the trial, where error was most likely to occur – the evidence and the direction of the judge to the jury – the writ could do nothing to remedy the only errors that were really substantial.” Holdsworth W. , A History of English Law, 16 vols. (reprint London: Sweet and Maxwell, 1966) 1: 215–17 (footnote omitted). For a useful survey of the different modes of review, with particular attention to nineteenth-century developments, see Berger B. L. , “Criminal Appeals as Jury Control: An Anglo-Canadian Historical Perspective on the Rise of Criminal Appeals,” Canadian Criminal Law Review 10 (2005): 1. The limited scope of the writ of error prompted parties at times to elect a special verdict despite the expense, because the specially-found facts would be on the record and therefore covered by a subsequent writ of error.

20. See, e.g., R. v. Taft, 1 Leach 172, 168 E.R. 189 (Leicester Lent Assizes 1777) (forgery–“the learned and humane Judge, cautious of passing sentence of death in a case which admitted a doubt, submitted to the consideration of the twelve judges”; forgery confirmed); R. .v Powell, 1 Leach 77, 168 E.R. 141 (Old Bailey 1771) (conviction confirmed and prisoner executed); R. v. Adey, 1 Leach 206, 168 E.R. 205 (Old Bailey 1779) (no opinion by the judges ever given; prisoner was discharged after imprisonment for 18 months; footnote speculation that perhaps the prisoner escaped pending the opinion of the judges when the gaol was burned down in the Gordon Riots of 1780).

21. See n. 5, above. For cases in which the saving of expense was expressly recognized, see R. v. Hodgson, 1 Leach 6, 168 E.R. 105 (Old Bailey 1730); R. v. Coombes, 1 Leach 388, 168 E.R. 296 (Old Bailey [Admiralty] 1785); Parker v. Asline, Barnes 472, 94 E.R. 1009 (KB 1758).

22. See, e.g., Murry v. Eyton and Price, 2 Show. K.B. 104, 89 E.R. 823 (1680) (the cause “adjourned into the Exchequer Chamber, propter difficultatem, before all the twelve judges”); Pitt's Case, Fortescue 169, 92 E.R. 801 (1734) (“this Court had the advice of all the Judges, because such an attempt to have the defendant discharged on affidavits, appeared to be a new thing”); R. v. Drinkwater, 1 Leach 15, 168 E.R. 110 (Old Bailey 1740) (the question of whether a person who receives money as a reward for helping another to stolen goods could be prosecuted before the principal offender had been convicted was sent to the judges as “a case of very great importance, and of the first impression,” but no opinion by the judges was ever publicly communicated–ibid., 18–19); R. v. Morgan, 1 Leach 54, 1168 E.R. 129 (Old Bailey 1764) (“a Mahometan may be sworn on the Alcoran in a prosecution for a capital offence”); R. v. Hazel, 1 Leach 368, 168 E.R. 287 (Norfolk Summer Assizes 1785) (whether a special verdict could be amended in a capital case, a question “for the difficulty of it, referred to the consideration of all the Judges”–ibid., 383, 293); R. v. Hammon, 2 Leach 1083, 168 E.R. 638 (Old Bailey 1812) (“the court reserved the point, it being a new case”–ibid., 1087, 640).

23. 7 Co. Rep. 1a, 77 E.R. 377 (1608).

24. 1 Leach 115, 168 E.R. 160 (Old Bailey 1775) (“It being judged a point of great weight and importance in the criminal law, to be fully considered and finally settled, how far, under what circumstances, and in what manner an accomplice, received as a witness, ought to be entitled to favour and mercy, and farther consideration of the matter was then deferred, in order that the opinion of all the Judges might be taken upon the point of law”–ibid., 124). See generally Andrew Donna and McGowen Randall, The Perreaus & Mrs. Rudd (Berkeley: University of California Press, 2001).

25. 1 Bl. W. 301, 96 E.R. 169 (1761).

26. Ibid., 345, 190.

27. Millar v. Taylor, 4 Burr. 2303, 2327, 98 E.R. 201 (1769).

28. See, for example, Holiday v. Pitt, Cun. 16, 94 E.R. 1033 (1734); R. v. Brady, 1 B. & P., 187, 126 E.R. 851 (1797); R. v. Gillson, 1 Taunt. 95, 127 E.R. 767 (Old Bailey 1807). In R. v. Smith, Holt 614, 171 E.R. 357 (Newcastle Summer Assizes 1817), the prisoner had been convicted and left for execution on August 18, but on August 16, counsel for the prisoner showed the trial judge a note of a case that had been decided at York two years earlier, and after reading it, the judge “sent an express to respite the execution in order to give time to take the opinion of the twelve judges on the point of law.” Ibid., 616, 360. The eleventh-hour respite did not succeed, however, and the prisoner was afterwards executed.

29. See Mason's Case (Winchester Summer Assizes 1756) and Curtis's Case (Newcastle Summer Assizes 1756), reported at Foster M. , A Report of Some Proceedings on the Commission of Oyer and Terminer and Gaol Delivery for the Trial of the Rebels in the Year 1746 in the County of Surrey, and of Other Crown Cases (Oxford: Clarendon Press, 1762) 132, 135.

30. Russ. & Ry. 53, 168 E.R. 680 (Spring assizes, Nottingham, 1803).

31. 18 G. 2 c. 27, s. 1.

32. Russ. & Ry. at 56, 168 E.R. at 681.

33. See, for example, R. v. Coombes, 1 Leach 388, 168 E.R. 296 (Old Bailey [Admiralty] 1785); R. v. Bruce, 2 Leach 1092, 168 E.R. 643 (Old Bailey [Admiralty] 1812). The Admiralty Sessions were established by two statutes of Henry VIII creating commissions of oyer and terminer, a jurisdiction that by the eighteenth century had been limited to felonies. See Pritchard M. J. and Yale D. E. C., Hale and Fleetwood on Admiralty Jurisdiction (London: Selden Society, 1993), cxxxvii, clvii–clviii. On the Coombes case, see ibid., clviii, clx, clxx–xi. On Bruce, see ibid., clxii, clxxv–clxxvi.

34. Lawrence MSS, vol. 6A, Crown Cases 1794–97, 332, Middle Temple Library, London.

35. This statement was signed by all of the judges except Ashhurst, who was out of town. Two additional unreported court martial cases that were referred to the twelve judges in 1811 were R. v. Parker and R. v. Mulearty, both found in Lawrence MSS, vol. 6D, Crown Cases 1794–97, 393 and 397, respectively, Middle Temple Library, London. On the Mulearty case, see text at nn. 87–88, below. Parker was accused and convicted on board H.M.S. Salvador del Mundo of committing an unnatural act, as mentioned in the twenty-ninth Article of War, with a cabin boy. The boy's testimony was unclear on whether emission from the defendant was inside the boy's body or upon it. Although the defendant was convicted, the question of whether emission inside the body was essential to a conviction for sodomy was referred to the attorney general and solicitor general and counsel for the Admiralty. They concluded that emission inside the body was an essential element of the crime, but the question, “by order of the Prince Regent in Council,” was referred to the twelve judges. The judges met twice, and at the first meeting all of the judges thought that the Court Martial sentence of guilty of an unnatural act was wrong except Lord Ellenborough, “who thought the crime compleat, saying that he should in future direct in practice according to the opinion of the other judges, but he thought emissio seminis not necessary.” The issue was debated again at the second meeting, at the conclusion of which Ellenborough agreed to sign a certificate which read as follows: “According to what for a great number of years past has been understood to be the law and acted on as such, we are all of opinion that the evidence stated to us does not prove that the crime imputed to the prisoner was compleat, and consequently that the sentence of the Court Martial upon James Parker is not legal.”

36. 2 Dyer 236a, 73 E.R. 521 (1565).

37. Dudley Ryder, Legal and Political Diary 1746–49, copy held by Georgetown University Law Library.

38. Ibid., 47.

39. Ibid., 49.

40. Blackstone W. , Commentaries on the Laws of England, 4 vols. (Oxford: Clarendon Press, 1765–69) 3: 70

41. Holdsworth W. , History of English Law, 12:146. Holdsworth's view was not universally accepted. See, generally, Duxbury Neil , The Nature and Authority of Precedent (Cambridge University Press, 2008). Duxbury states that, “By the late eighteenth century, there certainly existed among the English judiciary a practice of following precedents, but the fact that there was as yet no clear and unchallengeable court hierarchy made it difficult and often impossible to say that one decision was binding on another because of the source from which it emanated,” citing Allen C. K. , Law in the Making, 3rd ed. (Oxford: Clarendon Press, 1939) 210. Duxbury says (18, n.53) that “Allen developed his argument in response to William Holdsworth, who maintained that the doctrine of precedent had become established in England by the latter half of the eighteenth century.”

42. Ibid., 147, citing Pollock F. , A First Book of Jurisprudence (Littleton, CO: Rothman, 1996) 299300.

43. Langbein J. , The Origins of Adversary Criminal Trial (Oxford University Press, 2003) 212–13.

44. Baker, Introduction, 139. As a number of cases discussed in this article demonstrate, the judges also treated unreported decisions as precedents for the future.

45. Ibid., 198.

46. See, generally, Baker, Introduction, ch. 12 (“Law Making”).

47. See n. 41, above.

48. 7 Car. & P. 836, 173 E.R. 364 (1837).

49. Ibid., 841, 366.

50. Ibid., 842, 367. The “learned judge” (Bolland, Baron), of course, was one of the judges hearing the argument before all of the judges.

51. The defendants pleaded autrefois acquit [formerly acquitted] to the second indictment, with which the second jury agreed, acquitting the defendants again. The twelve judges debated whether there would be a way to avoid the second verdict if it could be shown to be clearly against the evidence – as, on the facts of the case, if the proof that there was a second rape was clear. Some of the judges appeared to be uncertain whether double jeopardy would attach in such circumstances. Prosecution counsel Greaves suggested that “if there is not a judgment quod eat sine die [that he go without a day, i.e., that the defendant was dismissed from any further court appearance], the party could not use the verdict on a plea of autrefois acquit,” to which Baron Alderson responded, “That may be the true solution.” Baron Parke seemed surprised, asking, “You say that if the Judge refuses to record this verdict, you may go on at the next assizes?” Justice Littledale then interjected that, “After the minutes of the verdict are put down, the clerk of assize says, ‘Hearken to your verdict as the Court records it,’ and the Judge might then say, ‘Do not record it,’ and ask the jury to reconsider it.” Ibid., 842–43, 367.

52. Ibid., 843, 367. This technical observation merely meant that the civil case would be returned to the common law court in which it originated. The four judges of that court invariably adopted the collective decision of the twelve judges. See in this connection Mead v. Robinson, text at nn. 152–54, below.

53. 1 Leach 114, 168 E.R. 160 (Summer Assizes, Southampton, 1775).

54. Ibid., 115, citing Mary Mitchell's Case (Lent assizes, Kent, 1754). See Foster's Crown Law, 119.

55. 1 Leach 314, 168 E.R. 260 (Old Bailey 1784).

56. Ibid., 317.

57. R. v. Patch, 1 Leach 238, 239, 168 E.R. 221 (Old Bailey 1782).

58. R. v. Pear, 1 Leach 212, 213, 168 E.R. 208 (Old Bailey 1779).

59. 1 Leach 420, 168 E.R. 312 (Old Bailey 1786).

60. Ibid., 422, 313.

61. Ibid., 424, 314.

62. 1 Leach 339, 168 E.R. 273 (Old Bailey 1784).

63. 19 G. 2, c. 34.

64. 19 G. 2, c. 69, s. 10.

65. Ibid., 342, 274.

66. Ibid., citing R. v. Davies [Davis], 1 Leach 271, 168 E.R. 238 (Hertford Summer assizes 1783).

67. 2 Leach 572, 168 E.R. 388 (Old Bailey 1792).

68. Ibid., 574, 389, citing R. v. Campbell, 2 Leach 564, 168 E.R. 385 (Old Bailey 1792).

69. Dears. 397, 169 E.R. 779 (1854).

70. Russ. & Ry. 487, 168 E.R. 911 (1822).

71. Dears. 399, 169 E.R. 779 (1854). Five justices constituted a quorum on the Court for Crown Cases Reserved, and according to Holdsworth, “If the five differed, any one might require the matter to be referred to all the judges.” Holdsworth, History of English Law, 1: 217.

72. 2 Leach 578, 580, 168 E.R. 392 (1792),

73. 1 Lewin 209, 168 E.R. 1015 (1825).

74. Wagering contracts were very close cousins to insurance contracts, the key difference being that there was no insurable interest in a straightforward wagering agreement. Two insurance statutes, one from 1746 and the other from 1774, invalidated insurance contracts “upon lives, or any other event or events, without interest in the parties.” The 1774 statute was seized upon by Lord Mansfield in 1777–78 in the case Roebuck v. Hammerton, in striking down a wagering contract on whether the French Ambassador to England, the Chevalier D'Eon, was male or female. Yet Roebuck and the 1774 statute did not, as might have been supposed, invalidate wagering contracts in England. Roebuck and a companion case, Da Costa v. Jones, were thought to invalidate only those wagering contracts that offended the public interest, as in inviting scandalous testimony concerning a well-known political figure. More pedestrian wagering contracts were therefore not reached. See Oldham, English Common Law, 141–46.

75. Cowp. 37, 98 E.R. 954 (1774).

76. Cowp., 39–40, 98 E.R. 956.

77. On the 1774 statute, see n. 74, above. Foster was unreported except for a brief reference in the case of Allen v. Hearn, 1 T.R. 56, 99 E.R. 969 (1785). Reporters Durnford and East inserted a footnote to the citation of Foster by counsel for the plaintiff, explaining that the opinion of the twelve Judges was taken on “whether the wager were void under the stat. 14 G. 3. c. 48.” The judges, however, were divided – “The Courts of B.R. and C.B. were of opinion that it was; and the Court of Exchequer contra,” and “no judgment was ever given in the case.” 1 T.R. 57, n. (b), 99 E.R. 970. Two manuscript reports provide full information on the case. The first, in which the background of the case is given, is in notebooks kept by barrister Vicary Gibbs. See Gibbs MSS, Cases in King's Bench, Easter 21 G. 3, to Hilary 22 G. 3, 84 (Trinity 1781), Middle Temple Library, London. The second is in the manuscripts kept by Lord Eldon while at the bar: Notes of Cases 1779, 55, Eldon MSS, Georgetown University Law Library, Washington, DC. All of the quotations in the text from the arguments during Trinity Term 1779 are taken from the Gibbs MS.

78. See n. 74, above.

79. Except for complicated matters such as financial accounts, questions of fact could not ordinarily be decided in the Court of Chancery and would have to be put before a common law jury. Thus, in an illustration by Blackstone, when a fact question arises in a case in equity about an inheritance, it “is usually directed to be tried at the bar of the court of king's bench or at the assizes, upon a feigned issue … wherein the pretended plaintiff declares, that he laid a wager of 5l. with the defendant, that A was heir at law to B; and then avers that it is so; and brings his action for the 5l.” – “The defendant allows the wager, but avers that A is not the heir to B; and thereupon that issue is joined.” W. Blackstone, Commentaries, 3: 452.

80. See,for example, the argument of Le Mesurier for the plaintiff in Allen v. Hearn, 1 T.R. 56–57, 99 E.R. 969 (1785).

81. 3 T.R. 693, 100 E.R. 808 (1790). A rule had been granted on November 10, 1788 to show cause why the jury verdict for the plaintiff should not be arrested. Defense counsel Erskine pitched the case as an opportunity to guard against frivolous waste of judicial resources; otherwise the courts “would soon have five hundred such wagers to decide” – “A man might lay a wager that his horse's tail contained 5,000 hairs, or that an old woman sold so many apples at her stall in a given time,” and these cases would absurdly “break in upon the time which their Lordships had set aside for the distribution of justice.” The Times, November 13, 1788, 3.

82. Ibid., 702, 812.

83. 2 Car. & P. 235, 172 E.R. 107 (1825).

84. 8 & 9 W. 3, c. 26, s. 1 (1696).

85. Ibid.

86. Ibid., 237.

87. Lawrence MSS, Crown Cases 1805–1815, vol. 6D, 399.

88. Lawrence's notes give no information about the judges' deliberations.

89. 1 Leach 193, 168 E.R. 199 (Old Bailey 1779).

90. This outcome had been anticipated in another Old Bailey case that came before the twelve judges in 1776, R. v. Jones, 1 Leach 139, 168 E.R. 171, although in that case nothing was indicated about the judges' reasoning except that the defendant's behavior “was a pretence of a very alarming nature, and that a sufficient degree of force had been made use of in effecting it, to constitute the offense of robbery.” Ibid., 141. On these cases and others like them, see Langbein, Adversary Criminal Trial, 142–43, n. 173.

91. 1 Leach 278, 168 E.R. 241 (Old Bailey 1783).

92. Ibid., 279–80, 243.

93. Reported at 2 East's Pleas of the Crown (1803) 734 (Old Bailey 1794).

94. 2 East's Pleas of the Crown at 735. The remark by Chief Justice Kenyon in East's report is not attributed to him; however, the case appears in Justice Lawrence's manuscripts, where the attribution is given. Lawrence MSS, Crown Cases 1794–97, vol. 6A, 127.

95. Reported in the Addenda to East's Pleas of the Crown (1803) at 1: xxi–xxiv. The case is also in Lawrence MSS, Crown Cases, vol. 6B, 298–305.

96. Lawrence MSS, vol. 6B, at 303–4. In a margin note, East posed a query whether the R. v. Jackson and Shipley decision did not in great measure overrule R. v. Hickman . East at 1:xxiv. In Lawrence's notes of the case, Lords Alvanley and Ellenborough are shown as stating that they would have decided Hickman the other way. Lawrence MSS, vol. 6B, 304–5.

97. See Oldham J. , Trial by Jury: The Seventh Amendment and Anglo-American Special Juries (New York University Press, 2006), Appendix 4.

98. Hale M. , The History of the Pleas of the Crown, 2 vols. (London: T. Payne, new ed. 1778) 2: 155.

99. Blackstone, Commentaries, 4: 299, citing Hale.

100. Hawkins W. , A Treatise of Pleas of the Crown, 2 vols. (London: E. Nutt, 1721) 2: 217.

101. Lawrence MSS, Notes of Crown Cases, vol. 6D, 280–81, citing Lambard's Eirenarcha (London: Companies of Stationers, 1614) 396. The passage in Lambard sets out juror qualifications, including freehold requirements for grand and petit jurors in Lancaster as specified in statutes of 7 H. 5 (1419) and 33 H. 6 (1455). See W. Lambard, Eirenarcha (1614 ed.) 396–97.

102. Ibid., 281.

103. See 4 Hen. 8, c. 3.

104. See text at nn. 62–66, above.

105. 1 Leach 481, 168 E.R. 342 (Old Bailey 1778).

106. 2 Leach 749, 168 E.R. 475(Old Bailey 1796).

107. The prosecutor's middle and last names were both Oldham.

108. The defendant cited R. v. Davis, 1 Leach 271, 168 E.R. 238 (1783), the same twelve-judge precedent that was viewed as controlling in R. v. Hutchinson, 1 Leach 339, 168 E.R. 273 (Old Bailey 1779), discussed above, text at nn. 62–66.

109. 9 G. 1, c. 22 (1722–23).

110. 30 G. 2, c. 24 (1756–57).

111. 2 Leach at 767, 168 E.R. at 483. For additional comparable cases, see R. v. Longmead (second statute effectively continued an earlier statute despite inaccuracy in second statute's description of earlier statute); R. v. Collins (assessing indictment under 36 G. 3, c. 125 [1796], which partially repealed 24 G. 3, c. 51 [1784], both dealing with the duty to be paid on hats and the stamp in the lining indicating payment); and R. v. Pearce (statute of 48 G. 3, c. 129, s. 2 [1808], which repealed 8 Eliz., c. 4 [1565], did not alter the offense of robbery at common law).

112. 1 Leach 55, 168 E.R. 130 (Old Bailey 1765).

113. 22 Car. 2, c. 1, s. 7 (1670).

114. Ibid., 56–57, 131.

115. Ibid., 57.

116. R. v. Cook, 1 Leach 105, 168 E.R. 155 (Lent assizes, Warwick 1774).

117. Ibid. The requirement of strict accuracy in the indictment had long been established in English law. See J. Cockburn, Calendar of Assize Records, Home Circuit Indictments, Elizabeth I and James I: Introduction (London: H.M.S.O., 1985) 76–86.

118. See, e.g., R. v. Lavey, 1 Leach 153, 168 E.R. 179 (Old Bailey 1776) (extracting latent silver from the body of base metal by means of aqua fortis is a “colouring” within the 8 & 9 W. 3, c. 26, s. 4); R. v. Palmer, 1 Leach 352, 168 E.R. 279 (Old Bailey 1784) (paper on the face of which there is a mark resembling the stamp required by 23 G. 3, c. 49, s. 20 showing payment of stamp duty is “paper liable to the said duties”); R. v. Ballie, 1 Leach 398, 168 E.R. 300 (Old Bailey 1785) (construing legislation dealing with people committed as “rogues and vagabonds” in one statute and as “incorrigible rogues” in another); R. v Davis, 1 Leach 493, 168 E.R. 348 (Summer assizes, Hereford 1788) (word “wilfully” was requred in indictment under the Black Act, and is not impliedly supplied by the word “maliciously”); and R. v. Williams, 1 Leach 529, 535, 168 E.R. 366, 369 (Old Bailey 1790) (indictment under 6 G. 1, c. 23, s. 11 must specify that the assault and the injury to the clothes of the prosecutor occurred at one and the same time, with the requisite intent to cut the clothes “then and there”).

119. 2 Leach 958, 168 E.R. 577 (Old Bailey 1803).

120. 15 G. 2, c. 13, s. 12 (1741).

121. 3 Car. & P. 605, 172 E.R. 565 (1828).

122. Ibid., 607, 566.

123. 1 Leach 451, 168 E.R. 328 (Old Bailey 1787).

124. 1 Leach 199, 168 E.R. 202 (Spring Assizes, Reading, 1779). This case has had a surprising history, most recently as the centerpiece of a careful analysis of the original understanding of the confrontation clause in the United States Constitution. See Franze Anthony , “The Confrontation Clause and Originalism: Lessons From King v. Brasier,” Journal of Law and Policy 15 (2007): 495.

125. 1 Leach 464, 168 E.R. 334 (Somerset Summer Assizes 1788).

126. Ibid., 465.

127. 2 Camp. 131, 170 E.R. 1105 (1809).

128. Ibid., 132–33, 1106.

129. According to John Langbein, it is “astonishing that in Atwood and Robbins a panel composed of all the common law judges of England could have made such an elementary error, contradicting their current practice.” Langbein, Adversary Criminal Trial, 216. In Langbein's opinion, the Atwood and Robbins case effectively overruled, sub silentio, “the established understanding of the corroboration rule” – that is, that uncorroborated accomplice testimony should have been excluded. Ibid. For a more extensive discussion of the corroboration rule, see also Langbein J.H. , “Shaping the Eighteenth-Century Criminal Trial: A View from the Ryder Sources,” University of Chicago Law Review 50 (1983) 1, 96–103.

130. 2 Camp. 133, 17 E.R. 1106.

131. Bentley, Select Cases, 99.

132. Lawrence MSS, Crown Cases vol. 6D, 58.

133. Ibid, 59.  See http://www.oldbaileyonline.org, case no. t18070114-5.  According to the OBSP report (p. 64), Spencer testified that the witness at whom she pointed (Bridge, not Hartford) was one of the men who had dragged her during the robbery.  She particularly noticed his face, which was not blacked, but she could not speak as to any of the others.  Justice Lawrence, in a postscript to his notes of the case, observed that “the accomplice was strongly confirmed as to Bridge.”  Lawrence MSS, Crown Cases vol. 6D, 72.

134. Bentley, Select Cases 99–100.

135. Ibid., 100.

136. Ibid.

137. Lawrence MSS, Crown Cases vol. 6D, 63.

138. The result reached in Fordham was also reached subsequently in other cases. See, for example, R. v. Dawber, 3 Stark. 34, 171 E.R. 758 (1821).

139. Some such cases have been referred to above. See R. v. Rudd, 1 Leach 123, n. 24; also R. v. Hazel, 1 Leach 368, and Murry v. Eyton and Price, 2 Show. K.B. 104, cited in n. 22.

140. Bridg. O. 402, 124 E.R. 657 (1665).

141. 1 Bl. W. 506, 96 E.R. 293(1764).

142. Barnes 472, 94 E.R. 1009 (KB 1758).

143. 1 B. & P. N.R. 326, 127 E.R. 489 (1805).

144. For an explanation of the use of legal fictions in ejectment actions to try freehold title, see J. H. Baker, Introduction, 301–3. Baker notes that, “For nearly three centuries from Elizabeth I to Victoria the usual action to recover real property thus involved two non-existent parties. The very title of an ejectment action – for example, Doe d. Smith v. Roe – concealed the truth.” Ibid., adding, in n. 22: “I.e. Doe (nominal plaintiff) on the demise of Smith (real plaintiff) against Roe (casual ejector).”

145. Barnes at 474, 94 E.R. at 1010.

146. 1 T.R. 11, 99 E.R. 944 (1785).

147. 1 B. & P. N.R. at 329, 127 E.R. at 490.

148. Ibid., 330, 491. The headnote in the printed report is incorrect, stating that the court would set aside a verdict upon the affidavit of a juryman that the jury had decided by lot. Ibid., 326, 489.

149. J. H. Baker, Introduction, 198–99 (footnotes omitted).

150. John Alcock, “Observations,” 1, citing Alcock's Registry Cases, 55 for Glennon's Case.

151. Ibid., 4.

152. Willes 422, 125 E.R. 1247 (CP 1743).

153. Ibid., 426 n.(a), 1249 n.(a), citing MS. Abney, J.

154. Ibid.

155. Lawrence MSS, Crown Cases, vol. 6D 1806–1815 73, 90 (1807). The OBSP contain a full account of Dempsey's trial by a London jury before Baron Thompson in April 1807, concluding with an entry of “Guilty, Death, aged 28.” See http://oldbaileyonline.org, case no. t18070408-81. No record appears in the OBSP of the post-trial deliberations by the twelve judges in May and June 1807 or of the judges' recommendation of a pardon. (A “conditional pardon” was a pardon conditioned on transportation to one of the colonies for life or for a term of years. See Beattie J.M. , Crime and the Courts in England 1660–1800 [Princeton University Press, 1986] 431–32.)

156. See, for example, R. v. Lyon, 1 Leach 186, 168 E.R. 438 (Old Bailey 1778); R. v. Pooley, 2 Leach 904, 168 E.R. 550 (Old Bailey 1801).

157. See, e.g., R. v. Wilkins, 1 Leach 520, 168 E.R. 362 (Old Bailey 1789) (Justice Gould, reporting the opinion of the judges, cited his own manuscript notes of earlier cases, as well as those taken by Justice Buller). Many more examples might be given. Prior to the start of Term Reports in the mid-1780s, printed reports of cases were either nonexistent or did not appear until years after the cases were decided. Therefore, reliance upon manuscript notes of the cases was essential. See e.g., Oldham J. , “Underreported and Underrated: The Court of Common Pleas in the Eighteenth Century,” in Law as Culture and Culture as Law, Hartog Hendrik, Nelson William E., and Kern Barbara Wilcie, eds. (Madison House Publishers, 2000) 119; J. Oldham, “The Indispensability of Manuscript Case Notes to 18th-Century Barristers and Judges,” paper delivered at the Nineteenth British Legal History Conference, University of Exeter, UK, July 2009.

158. Representative examples from Leach's Reports include R. v. Burnel, 2 Leach 588, 168 E.R. 396 (Old Bailey 1793); R. v. Lyon, 2 Leach 597 (Old Bailey 1793); R. v. Bunning, 2 Leach 621 (Old Bailey 1794); R. v. Hunter, 2 Leach 624, 168 E.R. 415 (Old Bailey 1794); R. v. Gilchrist, 2 Leach 657, 168 E.R. 430 (Old Bailey 1795); R. v. Tilley, 2 Leach 662, 168 E.R. 433 (Old Bailey 1795); R. v. Reculist, 2 Leach 703, 168 E.R. 453 (Old Bailey 1796); R. v. Vandercomb, 2 Leach 708, 168 E.R. 455 (Old Bailey 1796); R. v. Knewland and Wood, 2 Leach 721, 168 E.R. 461 (Old Bailey 1796); R. v. Gade, 2 Leach 732, 168 E.R. 467 (Old Bailey 1796); and R. v. Parkes and Brown, 2 Leach 775, 168 E.R. 488 (Old Bailey 1796). The reports published by Russell and Ryan tended to revert to the pattern of devoting only a few lines or one paragraph to the resolutions of the judges.

159. See, for example, R. v. Self, 1 Leach 137, 138, 168 E.R. 170 (Old Bailey 1776). In his fourth edition, Leach supplemented his case reports with additional information that appeared in East's Pleas of the Crown, sometimes including the judges' own notes. See, for example, R. v. Phipoe, 2 Leach 673, 680, 168 E.R. 438, 441 (Old Bailey 1795). During the early 1800s, other reporters at times acknowledged, with gratitude, information received directly from one of the judges who participated in the twelve-judge deliberations. See e.g., R. v. Frond, 1 Br. & B. 300, 129 E.R. 738 (Launceston Spring Assizes 1819).

160. On the character and readership of the Old Bailey Sessions Papers, see Langbein, Adversary Criminal Trial, 180–90 and sources cited therein. See also “The Value of the Proceedings as a Historical Source,” http://www.oldbaileyonline.org.

161. See n.155 and preceding text, and text preceding and following n.130, respectively.

162. http://oldbaileyonline.org, case no. t17800628-24. In the sentencing report in the OBSP and in Lawrence's notes, Bulkley is called Buckley, and it is likely that Buckley was the correct name.

163. Lawrence MSS, Crown Cases, vol. 6C, 1802–1805, 1–9.

164. Some of these cases, in addition to those that have been mentioned, appear in Lawrence's MSS, where the judge's reasoning is usually summarized. Bentley did not transcribe any of the cases that were already in print, even though the reports of a few of the cases in the twelve judges' notebooks were much more extensive than the printed reports. One such example was R. v. Lolley, a trial for bigamy that was taken up by the twelve judges in November 1812. See Bentley, Select Cases, 34. Lawrence's MSS contain an extensive report of this case as well.

165. See, e.g., R. v. Gillson, 2 Leach 1007, 1014, 168 E.R. 600, 604 (Old Bailey 1807) (“judgment was given at the Old Bailey on the ensuing day, and the opinion, it is said, of six Judges out of eleven, was that the prisoner should be discharged”).

166. See R. v. Drinkwater, 1 Leach 15, 168 E.R. 110 (Old Bailey 1740) (prisoner discharged); R. v. Fitzgerald, 1 Leach 20, 168 E.R. 113 (Old Bailey 1741) (prisoners executed); R. v. Parker, 1 Leach 41, 168 E.R. 123 (Summer assizes, Rochester 1750) (prisoner ordered at next assizes to give bail); R. v. Sloper, 1 Leach 81, 168 E.R. 143 (Old Bailey 1772) (prisoner shown in Newgate Calender as still awaiting judgment in July 1777, but disappears from the record the following sessions); R. v. Bolland, 1 Leach 83, 168 E.R. 144 (Old Bailey 1772) (prisoner executed); R. v. Adey, 1 Leach 206, 168 E.R. 205 (Old Bailey 1779) (prisoner discharged after 18 months in jail; R. v. Hazel, 1 Leach 368, 168 E.R. 287 (Norfolk Summer assizes 1785) (prisoner discharged with King's pardon after 12 months); R. v. Aickles, 1 Leach 438, 168 E.R. 321 (Old Bailey 1787) (remanded to a former sentence); R. v. Cockwaine, 1 Leach 498, 168 E.R. 351 (Old Bailey 1788) (prisoner pardoned and discharged April 1780); R. v. Reeves, 2 Leach 808, 168 E.R. 503 (Old Bailey 1798) (defendant was tried again on another indictment, found guilty and executed); R. v. Bazeley, 2 Leach 835, 168 E.R. 517 (Old Bailey 1799) (prisoner recommended for pardon by the Secretary of State); R. v. Munday, 2 Leach 850, 168 E.R. 524 (Old Bailey 1799) (prisoner sentenced to a fine of 1 shilling and two years in house of correction); R. v. Smith, 2 Leach 856, 168 E.R. 527 (Summer Assizes Maidstone 1799) (one year's imprisonment with two years' security); R. v. Pooley, 2 Leach 887, 168 E.R. 542 (Old Bailey 1800) (pardoned); R. v. Bakewell, 2 Leach 943, 168 E.R. 570 (Old Bailey 1802) (reportedly the case was never decided, as “it went off on other considerations”); R. v. Crocker, 2 Leach 987, 168 E.R. 591 (Summer assizes Salisbury 1805) (prisoner pardoned and discharged); R. v. Bullock, 2 Leach 996, 168 E.R. 595 (Old Bailey 1807) (prisoner pardoned conditional on transportation for life); R. v. Stock, 2 Leach 1015, 168 E.R. 604 (Summer assizes Carlisle 1809) (prisoners executed); R. v. Holden, 2 Leach 1019, 168 E.R. 607 (Lancaster Summer assizes 1809) (prisoners executed); and R. v. Walsh, 2 Leach 1054, 168 E.R. 624 (Old Bailey 1812) (prisoner liberated).

167. See, e.g., R. v. Dunn, 1 Leach 57, 168 E.R. 131 (Old Bailey 1765) (because of Justice Aston's sole dissent, the prisoner was recommended for mercy); R. v. Dempsey, text preceding n.155, above.

168. See, e.g., R. v. Lennard, 1 Leach 90, 168 E.R. 147 (Taunton Lent Assizes 1772).

169. 1 Leach 63, 168 E.R. 134.

170. Ibid., 64.

171. Ibid.

172. J. Stephen, A History of the Criminal Law of England 1: 311.

173. See Langbein, Adversary Criminal Trial, 170, 256–57, 291–300.

174. The pardons recommended by trial judges were virtually automatic (see Beattie, Crime and the Courts in England, 432, n. 49), and such recommendations by the twelve judges were certain to be accepted.

175. Baker, Introduction, 139 (footnote omitted).

176. Ibid. (footnote omitted).

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