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Summary Conviction and the Development of the Penal Law

Published online by Cambridge University Press:  18 August 2010

Norma Landau
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Extract

Bruce Smith's article, “The Presumption of Guilt and the English Law of Theft, 1750–1850,” has a highly intriguing argument. While I do not agree with that argument, it is nonetheless very helpful in identifying questions fundamental to characterization of what Smith terms the “Bloodless Code”—the eighteenth-century laws authorizing summary conviction, laws that, as Smith states, were a striking feature of the Hanoverian legal regime.

Type
Forum: Comment
Information
Law and History Review , Volume 23 , Issue 1 , Spring 2005 , pp. 173 - 189
Copyright
Copyright © the Board of Trustees of the University of Illinois 2005

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References

1. See, however, Sweeney, Thomas, “The Extension and Practice of Summary Jurisdiction in England c. 1790–1860” (Ph.D. thesis, Cambridge University, 1985).Google Scholar

2. Rule, John, The Labouring Classes in Early Industrial England, 1750–1850 (London: Longman, 1986), 107–19Google Scholar ; Linebaugh, Peter, The London Hanged (Cambridge: Cambridge University Press, 1992Google Scholar ); Thompson, Edward P., Whigs and Hunters (New York: Pantheon, 1975), 207Google Scholar.

3. Beattie, John M., “Scales of Justice: Defense Counsel and the English Criminal Trial in the Eighteenth and Nineteenth Centuries,” Law and History Review 9 (1991): 221–67CrossRefGoogle Scholar ; idem, , Policing and Punishment in London, 1660–1750: Urban Crime and the Limits of Terror (Oxford: Oxford University Press, 2001Google Scholar), chaps. 6–9; Langbein, John H., The Origins of Adversary Criminal Trial (Oxford: Oxford University Press, 2003Google Scholar ); May, Allyson N., The Bar and the Old Bailey, 1750–1850 (Chapel Hill: University of North Carolina Press, 2003)Google Scholar.

4. Bruce P. Smith, “The Presumption of Guilt and the English Law of Theft, 1750–1850,” 138.

5. D'Sena, Peter, “Perquisites and Casual Labour on the London Wharfside in the Eighteenth Century,” London Journal 14 (1989): 145CrossRefGoogle Scholar n. 47. According to East, Edward Hyde, Pleas of the Crown (Philadelphia: P. Byrne, 1805), 2:651Google Scholar, s.v. “Larceny and Robbery (In whom the Property),” section 88, “laying them [the goods] to be the property of a person unknown, is good….”

6. 15 Charles II c.2. The varieties of wood products specified in the act extend beyond those instanced above to wood such as gates and furze.

7. 3 William and Mary c.19; 4 William and Mary c.23.

8. 1 Anne St. 2 c.18. John Styles, “Embezzlement, Industry and the Law in England,” in Berg, Maxine, Hudson, Pat, and Sonenscher, Michael, Manufacture in Town and Country before the Factory (Cambridge: Cambridge University Press, 1983), 195CrossRefGoogle Scholar. According to Styles, the later statutes which did authorize conviction for possession of these goods probably were “necessary only because of the increasingly scrupulous legal climate of the later eighteenth century.”

9. Brooks, Christopher W., Pettyfoggers and Vipers of the Commonwealth (Cambridge: Cambridge University Press, 1986), 190–91.CrossRefGoogle Scholar

10. Smith, “Presumption,” 143–45, and n. 42.

11. Burn, Richard, The Justice of the Peace (London: A. Strahan, 1814), 3:224Google Scholar, s.v. “Larceny (what is).”

12. Ibid., 2:507–8, s.v. “Game (what is).” 13. 1 Henry VII c.7.

14. Burn, , The Justice of the Peace, 3rd ed. (In the Savoy: Henry Lintot 1756), 311–12Google Scholar, s.v. “Game I. Of Deer.” See also Munsche, Peter, Gentlemen and Poachers: The English Game Laws, 1671–1831 (Cambridge: Cambridge University Press, 1981), 4–7Google Scholar.

15. Burn, , Justice (1814), 3:242Google Scholar, s.v. “Larceny (of what thing).”

16. Marjorie K. McIntosh, “Social Change and Manorial Leet Courts,” in Guy, John, ed., Law and Social Change (London: Royal Historical Society, 1984), 76–77Google Scholar; idem, , Controlling Misbehavior in England, 1370–1600 (Cambridge: Cambridge University Press, 1998), 84–88Google Scholar.Hainsworth, D. R., Stewards, Lords and People (Cambridge: Cambridge University Press, 1992), 205–6CrossRefGoogle Scholar.

17. 4 George II c.32; 29 George II c.30.

18. 21 George III c.68.

19. See, for example, 1 Anne St. 2 c.22.

20. For embezzlement, see Hall, Jerome, Theft, Law and Society, 2nd ed. (Indianapolis: Bobbs-Merrill, 1952), 35–40.Google Scholar

21. Fletcher, George P., “The Metamorphosis of Larceny,” Harvard Law Review 89 (1976): 519CrossRefGoogle Scholar , and more generally, 469–520.

22. Styles, “Embezzlement,” 188 n. 51, and Craig Becker, “Property in the Workplace: Labor, Capital, and Crime in the Eighteenth-Century British Woolen and Worsted Industry,” Virginia Law Review 69 (1983): 1497–1500.

23. Becker, “Property,” 1492–93.

24. For asportation see Barbour-Mercer, Sarah Anne, “Prosecution and Process: Crime and the Law in Late Seventeenth-Century Yorkshire” (D. Phil. thesis, University of York, 1988), 190–91.Google Scholar

25. Styles, “Embezzlement,” 191–92, 197–98.

26. Ibid., 173–210; Becker, “Property,” 1487–1515; Adrian Randall, “Peculiar Perquisi-ties and Pernicious Practices: Embezzlement in the West of England Woollen Industry, c. 1750–1840,” International Review of Social History 35 (1990): 193–219.

27. Hall, Theft, Law and Society, chap. 1.

28. 3 and 4 William and Mary c. 9.

29. 1 Anne c.9, amended by 5 Anne c.31 allowing prosecution as for a misdemeanor if the thief could not be taken.

30. 4 George II c.32; 21 George III c.68. Burn, Justice (London, 1756), 1, s.v. “Accessary,” stating that there are no accessaries after the fact in petty larceny and trespass unless the statute defining the offense declares otherwise.

31. Smith, “Presumption”: Thomas Murray, 149; Henry Samuels, 151; and possibly John William Adams, 151.

32. This statement is based on examination of the 101 trials retrieved by an Advanced Keyword Search for silk AND receiving AND (ounces or pound%) on May 31, 2004, on Old Bailey online, http:/www.oldbaileyonline.org/. That search did retrieve some trials for receiving silk from the offspring or servant of an out-worker, takings which the law did recognize as larceny and the silk therefore as “stolen goods.”

33. 22 George II c.27 s.2; 17 George III c.56.

34. Smith, “Presumption,” 170; 158 and n. 78; and see also 159.

35. Colquhoun, Patrick, A Treatise on the Commerce and Police of the River Thames (Montclair, New Jersey: Patterson Smith, 1969 reprint of London: Joseph Mawman, 1800 ed.), 43.Google Scholar

36. London Metropolitan Archive (hereafter L.M.A.), MSJ/CC/1–3. I want to thank Erika Quinn for entering the information in the first and third registers into a database.

37. Landau, Norma, “The Trading Justice's Trade,” in Landau, N., ed., Law, Crime and Society, 1660–1830 (Cambridge: Cambridge University Press, 2002), 65–66.CrossRefGoogle Scholar

38. Public Record Office (hereafter P.R.O.), HO 42/20, f. 94, Staples to J. King, April 16, 1792.

39. L.M.A., MSJ/CC/3. For Bland, see Landau, “Trading Justice's Trade,” 60, 67. The remaining six convictions were made by stipendiaries at the Whitechapel and Shoreditch Police Offices.

40. Smith, “Presumption,” 155–56.

41. I want to thank Victoria Rivers, of the Department of Environmental Design at the University of California at Davis, for advice on this point.

42. There are no convictions under acts penalizing embezzlement by out-workers in the register covering November 1793 to February 1794.

43. Smith, “Presumption,” 158 and n. 78.

44. Linebaugh, , The London Hanged, 416–17Google Scholar, 422–23; D'Sena, “Perquisites,” 133, 134.

45. And see Sweeney, “Summary Jurisdiction,” 179–80.

46. East, , Pleas of the Crown, 2:588Google Scholar , s.v. “Larceny and Robbery (of what Things).”

47. Smith, “Presumption,” 139–40.

48. For an initial examination of the subject, see Tim Shakesheff, “Wood and Crop Theft in Rural Herefordshire, 1800–1860,” Rural History 13 (2002): 1–17.Google Scholar

49. There are no convictions for takings of wood in the register for November 1793 to February 1794.

50. 29 George II c.30.

51. P.R.O., T38/675–679, 691. (The accounts for the Whitechapel Office—T38/678—lack those for April through June, 1821.) I wish to thank Michael Collinge and Ruth Paley for directing me to these accounts. There are no fines under the Bumboat Act in these accounts. It is possible that the Thames Police Office's monopoly of Thames business was more complete on the Middlesex than the Surrey side of the River. The accounts of the stipendiary office in Southwark, Surrey—Union Hall Police Office, T38/690—for the first three months of 1821 include one conviction made under the Bumboat Act and one made under the Stealing of Lead, etc., Act.

52. Paley, Ruth, “The Middlesex Justices Act of 1792: Its Origins and Effects” (Ph.D. Thesis, University of Reading, 1983), 346–47.Google Scholar

53. Colquhoun, , Treatise on the … Police of the River Thames, 279.Google Scholar

54. For the stipendiaries' fines, see n. 51 above. For the Thames Police Office, see P.R.O., HO 59/1/36a.

55. Smith, “Presumption,” 166.

56. L.M.A., PS/TH/C01/001, William Kinnard, John Longley, and Thomas Richbell to the Home Office, Mar. 5, 1821, emphasis as in the original. I want to thank Louise Falcini for sending me her transcript of this letter.

57. See also 9 George II c.35 s.18, authorizing summary conviction of people “lurking” within five miles of the coast and suspected of intending to assist smugglers, who could not give “a satisfactory Account of themselves.”

58. Smith, “Presumption,” 167.

59. Sir Radzinowicz, Leon, A History of English Criminal Law and Its Administration (London: Stevens and Sons, 1956), 2:391–94Google Scholar . Sweeney, “Summary Jurisdiction,” 183–87, 195–207, presents the 1822 Metropolitan Police Act, renewing the legislation establishing the (non-Thames) stipendiary magistrates, as that which extended the powers of the Thames Police Office to the other stipendiary magistrates.

60. 2 and 3 Victoria c.71 s.24.