|
|
|
FORUM: COMMENT
Summary Conviction and the Development of the Penal Law
Norma Landau
| 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. |
1
|
|
Smith argues as follows. By the mid-eighteenth century it had become increasingly difficult to convict putative thieves of the felony of simple larceny, for two reasons. First, there were the difficulties posed by rules of evidence, especially by rules requiring the prosecutor to convince the jury that the allegedly stolen goods were actually his. Second, there was the increasing likelihood that defendants would be aided by barristers, who would both insist that the court adhere to these rules and also use the arts of cross-examination to inform the jury of the weakness of the prosecutor's case. In response to these obstacles to conviction, Smith argues, Parliament passed statutes authorizing summary conviction for the mere possession of commonplace nondescript goods—goods such as lead and iron, silk and wool, rope and wood—if their possessor could not satisfactorily account for that possession. |
2
|
|
Smith's article is innovative: summary conviction has been little studied,1 and his article examines summary jurisdiction in relation to the higher courts, a perspective rarely adopted. The article is timely, for it builds upon recent analyses of Hanoverian trials for felony. And the article is provocative, both because its argument presents the Bloodless Code as a highly intrusive legal regime and because the era in which Smith sites this regime is also that in which, it has been argued, capitalism transformed workers' customary perquisites into thefts and their defense of their wage into crime.2 |
3
|
|
Smith's argument identifies three questions as fundamental to the characterization of the Bloodless Code. First, its chronology: does the appearance of statutes authorizing summary conviction for "unexplained possession" accord with that of the intrusion of barristers into the trials for which these summary proceedings substituted? This comment argues that it did not. Second, the legal definition of the offenses these statutes addressed: were these offenses larceny? This comment argues that many of the activities addressed by these statutes were not larceny, or indeed felony. How, then, had the law addressed these activities in earlier eras? Did the statutes authorizing summary jurisdiction create offenses, as Smith's argument would imply? This comment argues that, in many instances, the activities over which these statutes gave summary jurisdiction to justices of the peace had earlier been subject to the jurisdiction of other bodies —bodies such as manors, guilds, companies, and town governments, bodies that no longer exercised that jurisdiction effectively. Finally, Smith's argument raises questions about the application of these statutes: was it as intrusive, indiscriminate, and widespread as his argument implies? This comment argues that it was not and therefore directs attention to the site providing much of Smith's evidence: the Thames Police Office. As this comment will suggest, Smith's evidence raises the possibility that the development of the justices' powers of summary jurisdiction was entwined with that of professional magistracy. If that is indeed the case, then unlike the Bloody Code, the Bloodless Code may be with us still. |
4
|
| |
|
I. Barristers? The Chronology of the Bloodless Code | |
| The question of chronology appears not just in speculations about the Bloodless Code's present affects; it is at the heart of Smith's argument. According to Smith, Parliament turned to summary conviction for unexplained possession because the insertion of barristers into trials for felony was making the conviction of alleged thieves very difficult. In so arguing, Smith is building upon recent work by John Langbein, John Beattie, and Allyson May on criminal trial under the Hanoverians.3 As they show, in the eighteenth-century criminal trial the defendant was a major "testimonial resource." In defending himself, in responding to witnesses, in entering into an altercation with the prosecutor, the defendant provided the jury with information necessary to its verdict. As these scholars also show, the insertion of barristers into criminal trials resulted in limitation of the evidence deemed acceptable by the court, and in a reduction, and eventually the complete disappearance, of the evidence the defendant presented to the court. |
5
|
|
Smith adds to this depiction by showing that barristers not only prohibited the presentation of some evidence and raised doubt about other evidence, but also insisted that yet another variety of evidence was a prerequisite for conviction. In particular, Smith emphasizes comments suggesting that a prosecution for larceny would fail if the prosecutor could not convince the jury that "goods found in the defendant's possession were actually the prosecutor's."4 It seems possible that this guideline was less fundamental to English law than Smith's argument allows. Indeed, in some circumstances—for example, when determination of the goods' possessor was legally complicated—an indictment would declare that stolen goods were the property of "persons unknown" and did so to insure that the indictment was legally sound.5 Barristers' insistence that prosecutors prove that the goods allegedly stolen were the prosecutors' goods therefore seems insufficient as an explanation for the creation of summary conviction as a substitute for trial for felony. |
6
|
|
What then of barristers' other contributions to the trial—their exclusion of some evidence and interrogation of other evidence? Could this explain Parliament's creation of the offense of mere possession of certain goods? It might, if the era in which Parliament created these offenses was the era in which barristers inserted themselves into felony trials. However, Parliament passed statutes creating such offenses long before barristers appeared at the Old Bailey. |
7
|
|
The first statute demanding that those found in possession of specified goods provide a "good account" or a "satisfactory account" of how they came into that possession seems to be the Destruction of Trees Act of 1663, which authorized summary conviction of people "having or carrying or any ways conveying, any Burthen or Bundles of any Kind of Wood, Underwood, Poles, or young Trees" who could not "give a good Account" of how "they came by such Wood."6 Similarly, the Deer Stealers Act of 1692 authorized the summary conviction of people who possessed venison but were not qualified to hunt and could not "give a good Account" of how they came by it, while the Game Act of 1693 authorized summary conviction of a person not qualified to hunt found in possession of game who could not give "a good Account how he came by" the carcass.7 And although the Woollen Manufacturers Act of 1703 does not explicitly authorize conviction for unexplained possession of the materials entrusted to workers during the manufacture of wood, linen, fustian, cotton, and iron, it seems likely that its enforcement entailed just such convictions.8 The chronology of the statutes authorizing summary conviction for the mere unexplained possession of specified articles therefore does not support the argument that such statutes appeared as a response to barristers' assumption of a role in trials for felony. |
8
|
|
There is another reason why the insertion of barristers into felony trials does not explain the appearance of statutes authorizing summary conviction for possession of specified goods: the offenses addressed by many of these statutes had never been felonies. These offenses—if they were offenses under the common law—had been misdemeanors. According to law, barristers were prohibited from representing defendants in trials for felony, but as Beattie and Langbein have shown, judges began permitting such representation in the 1730s. In contrast, barristers were never prohibited from representing defendants in trials for misdemeanors. While we do not know when they first began to do so, it is evident that barristers were a familiar sight at Quarter Sessions, where most misdemeanors were tried, by the early seventeenth century.9 Examination of Smith's argument about the timing of the legislation authorizing summary conviction for unexplained possession therefore leads directly to examination of the offenses this legislation addressed. |
9
|
| |
|
II. Felonies? Offenses Addressed by the Bloodless Code | |
| Smith characterizes the offenses for which summary conviction substituted as larceny, a felony. This comment argues, first, that most of these offenses, if they were offenses under the common law, were misdemeanors. Second, in many instances summary jurisdiction by justices of the peace over these offenses substituted for that of local and customary jurisdictions—the jurisdictions of manor and town corporation, guild and chartered company, jurisdictions no longer exercised with great effect. |
10
|
|
The characterization as larceny of the offenses for which summary conviction substituted provides foundation for Smith's argument that the impetus for the statutes authorizing summary conviction for unexplained possession was the desire to evade a fundamental rule of evidence. That rule was that of the corpus delicti, a rule that goods alleged to have been stolen had to be proved to be stolen from someone, a rule that impeded prosecutions for the theft of ubiquitous and nondescript goods such as wool and iron, silk and rope. As evidence of this rule, Smith quotes Starkie, Hale, and Blackstone. However, these quotations explicitly state that the rule applies to felony.10 It is not evident that the rule applied to misdemeanor. |
11
|
|
Smith's characterization of the offenses subjected to summary jurisdiction therefore helpfully raises the question of the relation of these offenses to larceny. According to law, larceny was the "felonious and fraudulent taking and carrying away by any person, of the mere personal goods of another."11 Many of the statutes Smith cites, and of the statutes instanced in the preceding discussion, deal with goods that according to law either are not "the mere personal goods of another" or were not obtained by "felonious and fraudulent taking and carrying away." |
12
|
|
First, consider goods that were not "mere personal goods." Two such goods were deer and game. Put simply, the law stated that these were not private property: they were instead ferae naturae—wild undomesticated animals at liberty in nature.12 However, by the late seventeenth century, the law had ceased to be so simple. Hunting deer at night, or in disguise, and concealing that act was made a felony in the late fifteenth century,13 although seventeenth-century legal commentators disagreed as to whether the statute was enforceable.14 While the 1692 statute authorizing summary conviction of those possessing venison did in some instances substitute summary conviction for trial for felony, it is likely that its aim was to circumvent not rules of evidence but instead juries unwilling to convict poachers. Somewhat similarly, it seems likely that the 1693 statute authorizing summary conviction for the possession of dead game was designed less to evade questions about the ownership of a carcass than to subject to penal law the taking of game that had not been so subject, while at the same time reinforcing earlier game laws that had entrusted the justices with summary jurisdiction. |
13
|
|
Like game, goods that "savour[ed] any thing of the realty" were not "mere personal property," and taking these goods, like taking game, was not larceny. The law defined goods attached to real estate as realty. According to law, it was impossible for realty to be taken feloniously; taking such goods was "but a bare trespass."15 So, the 1663 Destruction of Trees Act, authorizing summary conviction of those who could not satisfactorily account for timber, posts, or furze in their possession did not transform activity that would have been prosecuted as a felony into activity subject to summary conviction. Nor did it criminalize an activity that before would have been subject just to a civil suit. The Destruction of Trees Act vested in justices of the peace jurisdiction which had hitherto been exercised by manorial courts.16 By the mid-seventeenth century, many such courts were either defunct or ill-equipped to deal with the offenses and offenders over which they had nominal jurisdiction. So, this act, like other of the acts authorizing summary conviction for unexplained possession, did not substitute summary conviction before justices of the peace for trials for felony; instead it substituted summary conviction before the justices for proceedings before local tribunals, tribunals which had once exercised considerable power and were now ceasing to do so, tribunals which may well have convicted for mere possession. |
14
|
|
Like trees and posts, metals affixed to buildings or affixed in grounds "savoured of the realty." Taking these metals was a misdemeanor, not a felony. Nonetheless, to some extent the legislation authorizing summary conviction for possession of certain metals accords with Smith's argument. In 1731, the Theft Act made stealing lead or iron affixed to buildings or grounds a felony, and it was not until 1756 that the Stealing of Lead, etc., Act made unexplained possession of lead or iron punishable upon summary conviction.17 Here, therefore, taking these substances was felonious before unexplained possession of these substances became subject to summary conviction. However, the 1756 act also made punishable the unexplained possession of solder, copper, brass, and bell-metal, and it was not until 1781 that taking these substances or other metals attached to buildings or grounds was made felony.18 Here, contrary to the dynamic posited in Smith's article, trial for felony was substituted for summary conviction. It seems likely that the acts making the taking of these metals felonious were actually aimed at receivers. As this comment will argue, some of the statutes Smith instances as proof of his argument were designed not to circumvent the impediments that rules of evidence posed to conviction for felony, but instead to cope with the problem that the law's concept of the criminal act posed for the conviction of receivers. |
15
|
|
Discussion of the law's treatment of receivers broaches investigation of the second element of the law's definition of larceny—a felonious taking. In English law, several of the takings that Smith's article characterizes as larceny, and therefore subject to guidelines for the prosecution of felony, were not felonious takings and so not subject to these guidelines. Smith's article considers statutes penalizing possession of certain goods, but not the circumstances under which those possessing these goods gained their possession. As many of those possessing these goods gained possession in a manner that exempted them from prosecution for felony, the statutes penalizing their possession were not designed to provide an alternative to prosecution for felony. |
16
|
|
Out-workers were just such non-felonious possessors. They were entrusted by merchants and manufacturers with materials such as wool, silk, and iron so that they could transform these materials into manufactured or semi-manufactured products which they would then return to the merchants and manufacturers. Out-workers gained possession of these materials in a completely legal manner but, according to the statutes authorizing summary conviction for unexplained possession, they were apt to "imbezil or purlion" them.19 In the eighteenth century, neither embezzling nor purloining was larceny or felony.20 As George Fletcher has shown, before the modern era, larceny was understood as an actual and manifestly criminal taking, a "breaking of another person's prohibited perimeter," not a mere breach of private trust.21 Fletcher's argument traces the transformation of these concepts from the fifteenth to the nineteenth century, and as John Styles and Craig Becker have argued, the statutes authorizing summary conviction for purloining or embezzling materials entrusted to out-workers reveal that transforming process at work.22 These statutes facilitated prosecution of the misappropriation of goods that had been lawfully obtained.23 Before the 1703 Woollen Act, such misappropriations may have been among those prosecuted at Assizes and Quarter Sessions as the misdemeanor of "asportation";24 such misappropriations were also prosecuted before guilds and companies and town corporations, under the powers they exercised by charter.25 By the Hanoverian era, guilds, companies, and town corporations exerted less authority over industrial production. The legislation authorizing summary conviction for offenses associated with misappropriation of materials legally obtained therefore provided an alternative jurisdiction for the prosecution of offenses that in earlier eras were prosecuted as misdemeanors before the royal courts, or as non-felonious infractions of regulations administered by other courts. |
17
|
|
It is possible to adduce evidence of the legal classifications of actions brought against out-workers because there has been considerable investigation of the relation between out-workers, especially those in the woollen industry, and their employers.26 I am not aware of publications that yield similar evidence about the workplaces addressed by the Bumboat Act. Therefore, my comments on that Act are mere speculation. In that speculative vein, I note that the Bumboat Act exhibits stigmata similar to those characterizing the acts authorizing summary conviction for unexplained possession discussed above. Bumboats were little boats that serviced the seamen, lightermen, and stevedores on board ships and lighters on the Thames, selling them goods, and—so the Act alleged—taking in exchange what the seamen, lightermen or stevedores had purloined from ships' cargoes or equipment. The Bumboat Act, like the acts addressing the embezzlement of materials by out-workers, therefore addresses a taking of goods by those to whom they were entrusted. In the case of the Bumboat Act, the goods in question were goods in transit. Was such taking a felony? Ever since the decision of the Carrier's Case in 1473, English law had been elaborating an exquisitely complex set of rules determining when taking such goods was larceny, and when it was not.27 The Bumboat Act addressed not just a taking of goods in transit, but also a taking from ships on the Thames, and therefore a taking that might also have been defined by marine law. It seems quite possible that, like the acts authorizing summary conviction for possession of dead deer and game, the Bumboat Act addressed a taking whose definition was legally quite complicated. Indeed, it may be that, like other acts authorizing summary conviction for unexplained possession, the Bumboat Act addressed takings which were not larcenies. It also seems probable that, like many of those statutes, the Bumboat Act operated within an arena previously governed by courts other than those of either royal judges or the justices of the peace. Surely Trinity House, which governed traffic on the Thames, and the Port of London had attempted to prevent the theft of ships' equipment and cargoes? Finally, like the other acts authorizing summary conviction for unexplained possession, the Bumboat Act focused as much on receivers of misappropriated goods as on the misappropriators. The statutes did so because the law made it very difficult to prosecute these receivers. Indeed, in many instances the law declared that receiving these goods was not a felony. |
18
|
|
Like the other offenses addressed by statutes authorizing summary conviction for unexplained possession, receiving was an offense that early modern law conceptualized in a manner fundamentally different from modern law. In both early modern and modern law, a receiver is an accessary after the fact. In early modern law, a receiver is one who harbors a felon; it was not until 1692 that statute authorized the conviction of those who received stolen goods as felons, and did so only if the thief had been convicted.28 In 1702, Parliament decreed that those receiving stolen goods, knowing them to be stolen, could be prosecuted "as for a misdemeanour" if the thief had not been convicted.29 |
19
|
|
This quite possibly explains why Parliament passed the Theft Act of 1731, which made a felony the stealing of iron and lead affixed to buildings, and the Criminal Law Act of 1781, which made a felony the stealing of other metals affixed to buildings: before the passage of these acts, such takings were not felonies, and so receivers of these goods could not be indicted.30 Upon passage of these acts, receivers of these metals could be prosecuted for felony if the thieves were also convicted, and for misdemeanor if the thieves were not convicted. It also seems likely that many of those brought before justices to explain their possession of certain goods were actually suspected of being receivers of these allegedly stolen goods, as were some of the defendants instanced in Smith's article.31 In these cases, since the thief was not convicted, prosecution for unexplained possession substituted for prosecution for misdemeanor, not prosecution for larceny. |
20
|
|
Indeed, in many cases, prosecution at a summary court for possession or receiving did not substitute for any proceeding for felony or misdemeanor. To be convicted of receiving, a defendant had to have purchased stolen goods. Did the law consider materials that an out-worker had purloined from those entrusted to her a "stolen good"? It seems not. Not one indictment for receiving silk from an out-worker to whom it had been entrusted was brought at the Old Bailey from 1674 through 1799.32 The Frauds by Workmen Act of 1749 and its 1777 successor, which authorized summary conviction for unexplained possession of such materials, therefore penalized activity that had heretofore not been subject to indictment: the receiving of materials from an out-worker to whom they had been entrusted.33 Were the goods received by those plying bumboats from the officers, seamen, lightermen, and stevedores on ships in the Thames legally analogous to goods purloined by out-workers in the silk industry? It seems a nice legal question, quite possibly one few prosecutors would wish to tackle. The Bumboat Act may therefore epitomize the statutes authorizing summary conviction for unexplained possession. The Act was, as its soubriquet indicates, aimed at receivers. The Act addressed a taking whose definition was in the process of being fundamentally reconceptualized, and the Act was itself part of that process. Finally, the Act addressed a taking whose definition was legally complicated and was quite possibly not a larceny. It therefore does not seem likely that evasion of trial for larceny was the principal aim of the Bumboat Act or of the other statutes authorizing summary conviction for unexplained possession. |
21
|
| |
|
III. The Bloodless Code's Regime: How Pervasive? | |
| The Bumboat Act also epitomizes another feature of the Bloodless Code: the extent of its intrusions. Smith's argument presents the Bloodless Code as a pervasive legal regime, a regime which could demand that anyone possessing substances such as tobacco, metal, hemp, silk, rope, wood, wool, or various foodstuffs account for their possession.34 However, as the Bumboat Act indicates, both the statutes authorizing summary conviction for unexplained possession, and the application of these statutes, were more circumscribed than Smith's presentation implies. |
22
|
|
The Bumboat Act, while undoubtedly intrusive, was also very localized. In theory it applied only to goods taken from ships on the Thames; and its actual application seems to have remained within these bounds. Indeed, it seems that the Bumboat Act was, at least initially, applied quite sparingly. According to Patrick Colquhoun, the Act was not applied at all in the first fourteen years after its passage in 1762.35 If the Act were to be applied, it was the justices of Middlesex who would have been most active in its application. There are three surviving eighteenth-century registers recording Middlesex justices' summary convictions, including those made under the Bumboat Act.36 The first register records a total of 1375 convictions for all offenses made from October 29, 1773 to December 13, 1786. Of these, 113 were for offenses against the Bumboat Act; and 104 of these 113 convictions were made by John Staples, 92 from May through December 1786. While it is highly probable that some convictions made under the Act were not reported to Quarter Sessions' clerks and so not entered in their register,37 Staples's predominance in the recorded applications of the Act suggests that the Act was being used against those found in possession of ships' equipment and goods from their cargoes. In a letter written in 1792, when he was applying for a post as one of Middlesex's first stipendiary magistrates, Staples stated that the Act had been "dormant" until, in 1786, he went to Shadwell to join with Justice Greene in wielding the Act against river pirates. His expenses were subsidized by Trinity House and the principal companies trading from the Port of London.38 Of the nine convictions in this first register not made by Staples, eight were made by his confederate, Peter Greene, and the remaining conviction was made by Samuel Hawkins, who acted with Staples on other occasions. Staples was indeed appointed a stipendiary in 1792, and here too his activity suggests that the Act was applied to those found in possession of ships' equipment and goods from their cargoes. Of seventy convictions under the Bumboat Act in the clerks' third register, which noted convictions from November 9, 1793 to February 18, 1794, fifty-four were made by Staples, nine by his two colleagues at the Shadwell Police Office, and one by Nathaniel Bland, a trading justice who had decamped to Brentford on the River Thames.39 The draconian regime of the Bumboat Act was restricted to the Thames, its wharves, warehouses, and banks. |
23
|
|
Similarly, at least some of the goods whose possession could trigger a demand for explanation of that possession were not quite as widespread, and so the application of the statutes authorizing summary conviction for unexplained possession not quite as pervasive, as Smith's presentation implies. For example, Smith instances the 1777 act against goods misappropriated by out-workers in the textile, iron, and leather industries.40 While these goods—wool, silk, cotton—may seem those we would recognize and possess ourselves, they were instead rather different from those with which we are familiar. They were actually goods at various stages of manufacture, and so different from goods normally found in anyone's possession. For instance, the wool entrusted to an out-worker to weave into cloth was very much finer than the wool we use for knitting.41 The wool entrusted to an out-worker would be identifiable as such, and it is likely that many of the other materials so entrusted were also so identifiable. Nor did the statute authorizing summary conviction for unexplained possession authorize the conviction of any person. It authorized the conviction of those who had been entrusted with materials and of those receiving these materials; and it seems likely that those subjected to the statute at least appeared to be such people. So, for example, the Middlesex register of summary convictions for 1773 to 1786 records just three convictions for "purloining," "embezzling," or "secreting" yarn or worsted, a paltry number of convictions matching Middlesex's minimal role in the woollen industry. However, Spitalfields in metropolitan London was a center of the silk industry, and the register records fifty-five convictions for "purloining," "embezzling," or "secreting" silk—all made by justices residing in or near Spitalfields.42 |
24
|
|
Nor did these statutes, nor the justices' exercise of their powers of summary conviction, intrude as far into citizens' private lives as the assertion that justices "frequently exercised summary jurisdiction over a wide range of theft-related offenses, including the unlawful possession of ... various foodstuffs" would imply.43 Of the 1375 summary convictions from 1773 to 1786 recorded by Middlesex's clerks, just thirty-three were for takings of foodstuffs; in twenty-nine instances, that foodstuff was sugar, a foodstuff seamen and stevedores appropriated as they unloaded cargoes.44 All but one of these convictions were made under the Bumboat Act. Similarly, from November 1793 to February 1794, Middlesex's clerks recorded fifty-four summary convictions for takings of foodstuffs, all but one made under the Bumboat Act, including thirty-nine for the possession of "raw sugar."45 |
25
|
|
It is quite possible that the application of statutes authorizing summary conviction for unexplained possession of wood was more intrusive. There were some legal restrictions on their application: they could not be used to prosecute someone who had taken wood which had been "severed from the freehold" before it was taken.46 So, as Smith shows, the theft of a plank was not adjudicated summarily; the case had to be heard by judge and jury.47 Nonetheless, too little is known about the statutes authorizing summary conviction for offenses involving wood to allow for conclusions about their application.48 It is probable that these acts were applied almost exclusively in rural areas, and possible that those to whom they were applied were caught as they were taking the wood. All 128 convictions for stealing wood in the Middlesex register of summary convictions for 1773 to 1786 are for "cutting wood off Enfield Chase."49 |
26
|
|
Like the statutes against taking wood, the Stealing of Lead, etc., Act of 1756 may have been quite intrusive.50 That Act authorized summary conviction for unexplained possession of manufactured metals—of metals that had been affixed to or were lying in buildings or yards. Its application, however, seems to have been somewhat more limited. Of twenty-one convictions for possession of metals in the Middlesex register of summary convictions for 1773 to 1786, fourteen were made by John Staples, including seven made under the Bumboat Act, and another conviction was made by Staples's confederate Greene, again under the Bumboat Act. Similarly, of nine such convictions in the Middlesex register of summary convictions for November 1793 to February 1794, eight were made by Staples, including six made under the Bumboat Act. It does not appear that the Stealing of Lead, etc., Act was applied with any frequency outside the purlieus of London's docks. This impression is reinforced by detailed accounts of the fines collected at the offices of Middlesex's stipendiary justices in 1821, by which time jurisdiction over the Thames and its docks was being exercised by the special justices at the Thames Police Office. In 1821, the six stipendiary offices in Middlesex—that is, the Police Offices in Middlesex other than the Thames Office—levied just nine fines for possession of lead and one for possession of copper.51 So, if the Stealing of Lead, etc., Act was being applied with any vigor in Middlesex, then it must have been applied at the Thames Police Office, an Office which John Staples was instrumental in creating.52 |
27
|
|
That the justices administering the law of river and port would be prominent in the exercise of the powers granted by the Stealing of Lead, etc., Act is not surprising. Beside authorizing summary conviction of those possessing metals taken from buildings or yards, the Act also authorized summary conviction of those possessing metals taken from "ships, barges, lighters, boats and other vessels and craft ... and also from wharfs, keys, and other places." Patrick Colquhoun also recognized the relation between the Stealing of Lead, etc., Act and the administration of law on the river. His Treatise, published in 1800 to advocate the establishment of the Thames Police and Thames Police Office, cited the Stealing of Lead, etc., Act, along with the Bumboat Act, as providing the legal foundation for the work of his proposed Thames Police Justices.53 |
28
|
|
It is therefore relevant to note that Smith founds his argument about the nature of the Bloodless Code on the acts Colquhoun instanced as the foundations for the Thames Police Office—the Stealing of Lead, etc., Act, and the Bumboat Act—and on the Thames Police Office itself. Indeed, the Thames Police Office occupies a prominent place in Smith's presentation of the cases prosecuted under the Bloodless Code. Of the three cases discussed in his text, one was adjudicated at the Thames Police Office; of the five cases given as further examples (in note 68), three were adjudicated at the Thames Police Office. |
29
|
However, the Thames Police Office differed from other summary courts, not just from the summary courts operated by lay justices elsewhere in the country but even from the summary courts of other stipendiary magistrates. That difference is evident, first, in the nature of its activity, activity manifest in the fines it collected. In 1821, the justices at the Thames Police office collected £890, while the combined total of the fines collected by the justices of Middlesex's six stipendiary offices was just over £1025.54 Second, the powers wielded by the justices at the Thames Police Office differed from those wielded by justices elsewhere, including other stipendiary justices. Smith quotes a letter from the justices at the Thames Police Office in which they stressed the importance to their work of their powers of summary conviction for possession.55 However, as these justices also stated, these powers were less important to other stipendiary magistrates. The Thames Police Justices wrote this letter to dissuade the government from passing a statute which would "consolidate" the Thames Police Act with the act establishing the other stipendiary offices. According to the Thames Police Justices: as the Thames Police Act had extended the powers of the Bumboat Act, vesting them with powers for the "special and local purposes of preventing depredations on the River Thames, it would avoid great confusion in the proceedings upon summary conviction" if the Thames Police Office continued to operate under its own special act. As to the powers given to the Thames Police Officers: "They are such as can have no application to the General Police of the Metropolis...."56
|
30
|
| Smith presents the Bloodless Code as a ubiquitously intrusive legal regime. In contrast, this comment argues that its intrusions were local and designed to address the circumstances of the site into which it intruded. Smith argues that the Bloodless Code was created to circumvent the pitfalls of trial by jury for larceny. This comment argues that the statutes Smith cites—those authorizing summary conviction before a justice of the peace for unexplained possession—seem in several instances to have addressed offenses that the law did not define as larceny. In some cases, the justices' new jurisdiction replaced or supplemented that of local or customary courts, courts which may well, like the justices, have convicted summarily for unexplained possession. Finally, Smith points to the insertion of barristers into felony trials as the reason why Parliament elaborated the Bloodless Code, thus substituting summary trial before justices of the peace for trial conducted before judge and jury. In contrast, this comment identified three phenomena involved in the rise of the Bloodless Code: the allocation to justices of the peace of summary jurisdiction over non-felonious offenses, especially those which had in earlier eras been adjudicated by local or customary courts; the concept that the maintenance of commerce on the waterways required measures more stringent than those prevailing ashore;57 and the creation of professional magistrates—magistrates whom, as Smith states, Parliament immediately vested with power to convict summarily people merely "suspected" of theft.58 In the Thames Police Office, all three phenomena were entwined, and that Office was the site of what Sir Leon Radzinowicz termed "a progressive extension of police powers,"59 powers which were eventually bestowed upon other magistrates. By 1839, Parliament was decreeing that any of the metropolis's stipendiary magistrates could summarily convict anyone "having in his possession or conveying ... any thing which may be reasonably suspected of being stolen or unlawfully obtained," who could not give a satisfactory account of "how he came by" that thing.60 It may be that, as this comment's adjustment to the chronology of Smith's argument suggests, one impetus for this and similar laws of the 1820s and subsequent decades was Parliament's desire to establish convictions which barristers could not challenge using rules of evidence governing trials for felony. |
31
|
|
Norma Landau is a professor of history at the University of California at Davis <nblandau@ucdavis.edu>.
Notes
1. See, however, Thomas Sweeney, "The Extension and Practice of Summary Jurisdiction in England c. 1790–1860" (Ph.D. thesis, Cambridge University, 1985).
2. John Rule, The Labouring Classes in Early Industrial England, 1750–1850 (London: Longman, 1986), 107–19; Peter Linebaugh, The London Hanged (Cambridge: Cambridge University Press, 1992); Edward P. Thompson, Whigs and Hunters (New York: Pantheon, 1975), 207.
3. John M. Beattie, "Scales of Justice: Defense Counsel and the English Criminal Trial in the Eighteenth and Nineteenth Centuries," Law and History Review 9 (1991): 221–67; idem, Policing and Punishment in London, 1660–1750: Urban Crime and the Limits of Terror (Oxford: Oxford University Press, 2001), chaps. 6–9; John H. Langbein, The Origins of Adversary Criminal Trial (Oxford: Oxford University Press, 2003); Allyson N. May, The Bar and the Old Bailey, 1750–1850 (Chapel Hill: University of North Carolina Press, 2003).
4. Bruce P. Smith, "The Presumption of Guilt and the English Law of Theft, 1750–1850," 138.
5. Peter D'Sena, "Perquisites and Casual Labour on the London Wharfside in the Eighteenth Century," London Journal 14 (1989): 145 n. 47. According to Edward Hyde East, Pleas of the Crown (Philadelphia: P. Byrne, 1805), 2:651, 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 Maxine Berg, Pat Hudson, and Michael Sonenscher, Manufacture in Town and Country before the Factory (Cambridge: Cambridge University Press, 1983), 195. 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. Christopher W. Brooks, Pettyfoggers and Vipers of the Commonwealth (Cambridge: Cambridge University Press, 1986), 190–91.
10. Smith, "Presumption," 143–45, and n. 42.
11. Richard Burn, The Justice of the Peace (London: A. Strahan, 1814), 3:224, 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), 311–12, s.v. "Game I. Of Deer." See also Peter Munsche, Gentlemen and Poachers: The English Game Laws, 1671–1831 (Cambridge: Cambridge University Press, 1981), 4–7.
15. Burn, Justice (1814), 3:242, s.v. "Larceny (of what thing)."
16. Marjorie K. McIntosh, "Social Change and Manorial Leet Courts," in John Guy, ed., Law and Social Change (London: Royal Historical Society, 1984), 76–77; idem, Controlling Misbehavior in England, 1370–1600 (Cambridge: Cambridge University Press, 1998), 84–88. D. R. Hainsworth, Stewards, Lords and People (Cambridge: Cambridge University Press, 1992), 205–6.
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 Jerome Hall, Theft, Law and Society, 2nd ed. (Indianapolis: Bobbs-Merrill, 1952), 35–40.
21. George P. Fletcher, "The Metamorphosis of Larceny," Harvard Law Review 89 (1976): 519, 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 Sarah Anne Barbour-Mercer, "Prosecution and Process: Crime and the Law in Late Seventeenth-Century Yorkshire" (D. Phil. thesis, University of York, 1988), 190–91.
25. Styles, "Embezzlement," 191–92, 197–98.
26. Ibid., 173–210; Becker, "Property," 1487–1515; Adrian Randall, "Peculiar Perquisities 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. Patrick Colquhoun, 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.
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. Norma Landau, "The Trading Justice's Trade," in N. Landau, ed., Law, Crime and Society, 1660–1830 (Cambridge: Cambridge University Press, 2002), 65–66.
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, 416–17, 422–23; D'Sena, "Perquisites," 133, 134.
45. And see Sweeney, "Summary Jurisdiction," 179–80.
46. East, Pleas of the Crown, 2:588, 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.
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. Ruth Paley, "The Middlesex Justices Act of 1792: Its Origins and Effects" (Ph.D. Thesis, University of Reading, 1983), 346–47.
53. Colquhoun, Treatise on the ... Police of the River Thames, 279.
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 Leon Radzinowicz, A History of English Criminal Law and Its Administration (London: Stevens and Sons, 1956), 2:391–94. 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.
|
Content in the History Cooperative database is intended for personal, noncommercial use only. You may not reproduce, publish, distribute, transmit, participate in the transfer or sale of, modify, create derivative works from, display, or in any way exploit the History Cooperative database in whole or in part without the written permission of the copyright holder.
|