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FORUM: RESPONSE


Did the Presumption of Innocence Exist in Summary Proceedings?

Bruce P. Smith


Having long admired Norma Landau's pioneering work on the seventeenth- and eighteenth-century English magistracy, I am grateful to her for bringing her considerable expertise to bear on my article.1 Characteristically, Landau's criticism is extremely forceful. Unfortunately, the intriguing questions that Landau raises in her comment are obscured by a host of criticisms based on a misunderstanding of the claims that I advance. Landau attributes arguments to me that I do not make and ignores important ones that I do. In the process, she fails to engage with my central thesis: In summary proceedings that required suspects to "account" for materials found in their possession, the presumption of innocence did not exist. 1
      Although I wish to build constructively upon Landau's insights, I find myself in the position of first having to set the record straight. Let me begin by stating my argument in order to differentiate it from the one Landau claims to be mine. My article seeks to answer the following question: "[H]ow robust was the presumption of innocence in late eighteenth- and early nineteenth-century English criminal law?" My answer is clear: "[M]any English criminal defendants in the late eighteenth and early nineteenth centuries did not benefit from a presumption of innocence but, rather, struggled against a statutory presumption of guilt."2 I then make two related claims:
First, English criminal justice administrators from roughly 1750 to 1850 routinely resorted to summary proceedings in cases of suspected petty theft because of the challenges of securing convictions in the higher courts for the felony of simple larceny. Second, English criminal justice administration in this era is best viewed as a "two-tiered" system, in which heightened procedural and evidentiary protections for defendants tried in the higher courts coexisted with a system of reduced protections for defendants tried summarily for misdemeanors.3
 		2
That, in a nutshell, is my thesis. 3
      Landau nowhere claims in her lengthy critique that the presumption of innocence actually did exist in the summary proceedings that I describe. Nor, as we shall see, does she present evidence that undermines my contention that English criminal justice administrators resorted to summary proceedings in the late eighteenth and early nineteenth centuries because of the procedural and evidentiary advantages of such proceedings compared to prosecutions in the higher courts. Nor does she challenge my characterization of English criminal justice administration during this period as a "two-tiered" system. 4
      Why, then, does Landau disagree so vehemently with my thesis? I take up her three major criticisms in turn. 5
      (1) Causation and Timing: Landau first takes me to task for supposedly advancing the position that "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 Landau's rendition, "Smith points to the insertion of barristers into felony trials as the reason why Parliament elaborated the Bloodless Code."4 Focusing on a series of statutes passed in the late seventeenth and early eighteenth centuries, she then makes the indisputable point that Parliament first passed statutes requiring persons to "account" for suspicious goods "long before barristers appeared at the Old Bailey."5 Therefore, Landau argues, "[t]he chronology of the statutes ... does not support the argument that such statutes appeared as a response to barristers' assumption of a role in trials for felony."6 6
      But my article does not make the argument that Landau says it does. On page 156, I address the precise question taken up by Landau: "[W]hy did Parliament pass additional statutes during the course of the eighteenth century that conferred summary jurisdiction over specific forms of misappropriation?" Here is my answer:
Property owners may have lobbied for statutes criminalizing certain forms of misappropriation even if the behavior newly "criminalized" already fell within existing magisterial authority. In turn, statutes such as the Lead and Iron Act, which extended summary jurisdiction to petty appropriations of metals, may have been viewed as correcting certain loopholes in the law of larceny relating to fixtures. As the eighteenth century progressed, magistrates also may have experienced increasing unease about lumping persons of "low-to-middling" status—persons like Murray or Adams—among the vagrants or petty "pilferers" who were the traditional targets of informal summary committals. So too, Parliamentarians, magistrates, and legal commentators may have desired to place summary proceedings on a more solid legal footing by furnishing specific statutory bases for summary convictions.7
 As this quotation reveals, my four-part explanation of why Parliament passed statutes conferring summary jurisdiction does not even mention barristers—much less afford them the prominent role in Parliamentary motivation that Landau attributes to me. I, of course, agree with her that criminal lawyers were not on the minds of the MPs who passed the Destruction of Trees Act of 1663, the Deer Stealers Act of 1692, the Game Act of 1693, or the Woollen Manufacturers Act of 1703—measures passed decades before defense counsel even emerged in felony cases at the Old Bailey.		 7
      (2) The Comparative Advantages of Summary Proceedings: Of course, it is quite another matter to explain how and why criminal justice administrators used such statutes—and others like them—once they were passed by Parliament. Here, too, Landau finds much to criticize. She apparently believes that summary proceedings did not provide advantages to criminal justice administrators by comparison to prosecutions in the higher courts. Why so? In her view, summary proceedings that required suspects to "account" for possession could not have "substituted" for proceedings in the higher courts because "many of the activities addressed by these statutes were not larceny, or indeed felony" capable of being heard in such courts. Moreover, because Landau contends that the summary jurisdiction exercised by English magistrates "in many instances ... substituted" for the jurisdiction once exercised by manorial courts, towns, and corporate bodies, summary proceedings could not—in her view—have diverted cases from the higher courts.8 8
      With respect to Landau's first point, she is correct that Parliament sometimes passed statutes that conferred summary jurisdiction upon magistrates when the wrongs addressed in such statutes were not yet defined as felony. Indeed, I say as much in my article.9 At other times, Parliament conferred summary jurisdiction upon magistrates when the wrongs were defined as felony at the time of a given statute's enactment. And Parliament sometimes even adopted measures authorizing both misdemeanor and felony proceedings with respect to the same type of wrongdoing in the same Parliamentary session.10 9
      But while the precise statutory contours of magisterial jurisdiction changed from year to year—as the ever-expanding editions of Burn's Justice of the Peace and Parish Officer attest—magistrates throughout the late eighteenth and early nineteenth centuries consistently exercised considerable discretion in deciding whether to adjudicate cases summarily or commit them for trial in the higher courts. Thus, a magistrate in 1760 confronted with a person arrested in possession of suspicious lead could proceed summarily under the Lead and Iron Act of 1756 or commit him to trial under the Theft Act of 1731, which made the theft of lead and iron affixed to buildings a felony. A magistrate in 1800 confronted with a person in possession of suspicious brass could proceed summarily under the Lead and Iron Act or commit her to trial under the Criminal Law Act of 1781, which made the theft of other metals affixed to buildings a felony.11 And a magistrate in 1840 might choose to deal with a person in possession of suspicious metal by proceeding under the then-current versions of the Police or Vagrancy Acts, by which "petty cases of larceny [were] disposed of" based on the suspect's "having had possession of the stolen property" or having exhibited "felonious intention or unlawful purpose."12 In short, the fact that Parliament occasionally extended summary jurisdiction to offenses not yet officially defined as felony does not detract from my claim that magistrates frequently employed summary proceedings to bypass proceedings in the higher courts. 10
      Landau, however, presses on. She suggests that, as late as the 1830s, defendants like Thomas Murray, Henry Samuels, and John William Adams faced little or no risk of being tried in the higher courts because "[i]n these cases, since the thief was not convicted, prosecution for unexplained possession substituted for prosecution for misdemeanor, not prosecution for larceny."13 Landau is mistaken. The Lead and Iron Act itself stated that every person convicting of having knowingly bought or received "any stolen lead, iron, copper, brass, bell metal[,] or solder" was to "be transported for fourteen years," even in cases where "the principal felon or felons" had not been convicted.14 By the time that the magistrates confronted the suspected receivers Murray and Samuels, they had enjoyed the option for roughly eighty years of proceeding summarily or of binding such suspects over for trial in a higher court. Moreover, under the Larceny Act of 1827, as John Beattie has observed, "[r]eceiving was [itself] made a substantive felony"—meaning that suspected receivers of silk like Adams could be indicted for felony in their own right irrespective of the principal's prior conviction, provided the underlying theft amounted to felony as well.15 11
      Landau's second reason to doubt that magistrates resorted to summary proceedings as a means of bypassing proceedings in the higher courts is that English magistrates, from the early modern period onward, gradually acquired responsibilities once wielded by "manors, guilds, companies, and town governments."16 As a description of the authority of English magistrates from the early modern period to the eighteenth century, Landau's portrait has much to commend it; indeed, the claim has been a staple of the historical literature for nearly a century.17 And Landau is surely right to note that entities such as the Trinity House Corporation had traditionally regulated a range of activities on the Thames—a point made by Colquhoun as early as 1800.18 12
      In focusing on these points, Landau helpfully reminds us of the pluralistic nature of authority in early modern England. But if magistrates in London actually did take over the duties of increasingly moribund entities such as the Trinity House Corporation—a body historically vested with authority over lighthouses, cursing mariners, and shipmasters who dried their "Bread-Rooms" at night—they also exercised authority in the realm of criminal justice administration that went well beyond the traditional responsibility of such institutions.19 If Landau is correct that summary proceedings did not divert theft-related cases from the higher courts, how are we to explain the testimony of the police magistrate James Traill who, in the 1830s, stated that, in cases adjudicated under the Police and Vagrancy Acts, "the fact of an actual felony having been proved [was] overlooked" and was "the felony merged in the misdemeanor"? And, if summary proceedings did not provide distinct advantages compared with prosecution and trial in the higher courts, how can we explain Traill's concession that "it [was] well known that magistrates [were] in the practice of applying their summary jurisdiction even beyond the spirit, certainly beyond the words, of the law ... assuming to themselves the power of adjudicating in cases of actual felony, by treating them as misdemeanors"?20 The answer, in my judgment, is clear: English magistrates in my period of study routinely resorted to summary proceedings because of the procedural and evidentiary advantages that such proceedings provided compared to proceedings in the higher courts. 13
      (3) An "Intrusive Legal Regime"? : In the third part of her critique, Landau contends that I portray summary proceedings as "a ubiquitously intrusive legal regime."21 Although I do not know precisely what Landau means by this phrase—the words, once again, are hers and not mine— it certainly appears to evoke a legal regime different from the one that I describe in my article. 14
      For my part, I am careful to stress both the significant scope of summary proceedings and their important limitations. I do believe that summary proceedings formed an important part of English criminal justice administration in the century after 1750. Indeed, it would be hard to argue otherwise, given that, already by the 1830s, convictions in such proceedings far outnumbered committals to the higher courts.22 I also believe that Landau understates the importance of summary proceedings to English criminal justice administration during this period. To be sure, she raises intriguing questions about the quantitative and geographic scope of summary proceedings—questions that are challenging to answer given the limitations of the surviving sources. And by drawing upon tallies of convictions returned to the Middlesex Quarter Sessions, the varying practices of individual JPs, and financial accounts relating to the police offices, Landau advances our knowledge about the contours of summary proceedings in incisive and creative ways.23 15
      But Landau overlooks evidence that calls her position into question. Thus, while she quotes the portion of Colquhoun's Treatise on the Commerce and Police of the River Thames stating that the Bumboat Act was used "sparingly" in the fourteen years after its passage in 1762, she does not mention a later passage stating that more than 2,500 convictions had been secured under the Act by 1800.24 While she notes that "it is highly probable that some convictions" made under the Bumboat Act "were not reported to the Quarter Sessions' clerks and so [were] not entered" in surviving registers held in the London Metropolitan Archives, she has previously characterized the magistrates' returns as "suspiciously low"—an assessment that places into question her heavy reliance on these sources as a means of downplaying the importance of summary proceedings.25 And while Landau doubts that the Lead and Iron Act applied "with any frequency outside the purlieus of London's docks," her observation surely would have come as a surprise to Henry Samuels (convicted at the Queen Square Police Office in Bloomsbury) or to the many other persons summarily convicted of metal theft in London's police offices and whose names stud the pages of the Daily Police Report—a source that Landau also fails to cite. 16
      On the other hand, although I believe that summary proceedings were important, I never state that they were "ubiquitous" or that they were applied in the "indiscriminate" or "draconian" manner that Landau imputes to me.26 I surely do not portray a legal regime "which could demand that anyone possessing substances such as tobacco, metal, hemp, silk, rope, wood, wool, or various foodstuffs account for their possession."27 And by referring to the challenges for both property owners and suspected thieves caused by the fungible nature of the types of materials typically stolen—what I have termed "the material culture of theft"—I certainly do not argue either that such challenges frustrated every prosecution in the higher courts or created a "draconian" regime that ensured conviction in the police offices.28 Although I believe that summary proceedings placed defendants at a procedural disadvantage compared with proceedings in the higher courts, I also stress the temporal, substantive, and geographic limitations of such proceedings, the restrictive nature of the associated sanctions, and the ways that persons actively resisted such proceedings by filing petitions, hiring lawyers, and pooling their resources.29 17
      In the end, Landau appears to dispute even the very notion that summary proceedings that required persons to "account" for possession meaningfully "intruded" into the lives of those suspects caught up in them. However, for those individuals tried in proceedings that bypassed trial by jury, that eroded important evidentiary protections, that dispensed with lawyers, that generated 80 percent rates of conviction, and that resulted in substantial fines or multiple-month stints in the house of correction, I dare say that the law "intruded" rather uncomfortably. 18


Notes

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

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

3. Ibid., 136.

4. Landau, "Summary Conviction," 174, 188.

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

6. Landau, "Summary Conviction," 176.

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

8. Landau, "Summary Conviction," 177.

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

10. In 1766, for example, Parliament passed both the Wood Act (6 Geo. III, c. 48 [1766]), which authorized summary proceedings, and an earlier measure (6 Geo. III, c. 36 [1766]), which made it a felony "to break, destroy or carry away in the night-time any roots, shrubs, or plants to the value of 5s." The statutes were ultimately "considered as one Act passed in the same session." Sir Leon Radzinowicz, A History of English Criminal Law and its Administration from 1750, vol. 1, The Movement for Reform 1750–1833 (New York: Macmillan, 1948), 484–85.

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

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

13. Landau, "Summary Conviction,"182.

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

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

16. Landau, "Summary Conviction," 174.

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

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

19. Ibid.

20. Traill Report, 218 (emphasis added).

21. Landau, "Summary Conviction," 188.

22. In 1837, by way of example, there were 7,639 summary committals to the house of correction at Coldbath Fields and 1,060 committals for jury trial. See Bruce P. Smith, "Circumventing the Jury: Petty Crime and Summary Jurisdiction in London and New York City, 1790–1855" (Ph.D. diss., Yale University, 1996), 415 (citing Justice of the Peace [Nov. 17, 1838]).

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

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

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

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

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

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

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

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