By: Bruce P. Smith
| In his inaugural lecture as Downing Professor of the Laws of England at the University of Cambridge, delivered in October 1888, Frederic Maitland offered a set of provocative and now familiar reflections on “Why the history of English law is not written.”1 According to Maitland, although English archives possessed “a series of records which for continuity, catholicity, minute detail[,] and authoritative value” had “no equal … in the world,” the “unmanageable bulk” of these sources had “overburdened” aspiring historians of English law.2 As a result, “large provinces” of English legal history remained to be “reclaimed from the waste.”3 With few willing to undertake such reclamation efforts, the historiography of English law remained as bleak and barren as the bogs from which Maitland’s Cambridgeshire had itself only reluctantly emerged.4 | 1 |
| In the century since Maitland’s death in 1906, much, of course, has changed.5 The dedicated efforts of professional societies, scholars, and archivists have made a range of once obscure manuscript sources available to researchers.6 In a manner unthinkable to Maitland, commercial publishers in recent decades have marketed numerous compendia of primary sources, which now furnish scholars around the world with access to materials previously held only in select research libraries.7 Law students in both England and North America can now elect to take entire courses on English legal history.8 Conferences and conference panels devoted to the legal history of Britain attract not insubstantial scholarly crowds.9 And even in an age of diminished financial margins, academic publishers continue to devote considerable resources to books and journals addressing the subject of English legal history. | 2 |
| Over the past half century, no aspect of this field has emerged more prominently than the history of English criminal justice administration—particularly, the history of criminal justice in England during the seventeenth, eighteenth, and nineteenth centuries. In a manner that Maitland did not predict—and perhaps would not have welcomed—the history of English criminal justice from roughly 1650 to 1850 has attracted not only legal historians, but social historians, criminologists, sociologists, philosophers, and even scholars of law-and-economics. Over the past two decades alone, scores of books and hundreds of articles10 on English criminal justice administration in the “long eighteenth century”11 have been published, along with a handful of review essays,12 survey texts,13 and product reviews14 that have sought to keep pace with this flurry of scholarly activity. | 3 |
| Given the quantity and diversity of these recent developments, the time is ripe for a fresh historiographic synthesis of the field, designed both for specialists and non-specialists alike. To that end, this essay seeks to accomplish five goals: first, to identify the leading developments in English criminal justice administration from 1650 to 1850; second, to suggest some of the reasons that historians and other commentators have been so interested in this subject; third, to survey the historiography of English criminal justice administration in the long eighteenth century over roughly the past half century; fourth, to canvass the source materials that have been brought to bear on this subject; and, finally, to suggest some possible directions for future research. | 4 |
| The essay proceeds in four parts. Part I (“Scope and Significance”) defines the review’s thematic, geographical, and chronological contours and identifies reasons why students of this subject have found it to be so compelling. | 5 |
| Part II (“Foundational Studies”) examines the historiography of English criminal justice administration from the 1940s, when the field originated as a topic of scholarly study, until 1986, when the field’s most influential monograph and bibliographic survey were published.15 In chronicling developments over these five decades, the essay focuses on three pioneering bodies of scholarship: Sir Leon Radzinowicz’s five-volume History of English Criminal Justice Administration (1948–68), the first comprehensive treatment of English criminal justice in the post-1750 period;16 a set of writings published in the 1970s by historians associated with the University of Warwick, who adopted a critical, social-historical perspective on eighteenth-century English criminal justice administration;17 and, finally, a set of legal-historical works published from the late 1970s through the mid-1980s, including, most prominently, John Langbein’s early articles on the rise of adversary criminal trial and John Beattie’s monumental Crime and the Courts in England, 1660–1800 (1986), which concentrated on the procedures and institutions of criminal justice across the full spectrum of criminal offenses and, perhaps most importantly, revealed that English criminal justice administration changed in important ways before the early nineteenth-century “Age of Reform.”18 | 6 |
| Part III (“Post-1986 Studies and Themes”) focuses on studies of English criminal justice in the long eighteenth century published between 1987 and early 2007, when this article went to press. In assessing the contributions of this scholarship, the discussion addresses six subjects: criminal legislation; policing; prosecution; pretrial procedure; adjudication; and punishment. For each, the essay identifies how the studies of the past two decades confirm, revise, or supplement the findings and methods of earlier “foundational studies,” and suggests what questions might merit further exploration. | 7 |
| Part IV (“Future Prospects”) first canvasses the types of source materials made available in recent years to scholars of English criminal justice administration in the long eighteenth century. The discussion then turns to a pair of suggestions offered by Maitland in 1888 that may continue to yield benefits: first, a more thorough exploration of the insights to be gained from comparative legal-historical scholarship; and, second, a more sustained engagement with cross-disciplinary perspectives, including the work of legal academics working in the areas of criminal law and procedure. The essay concludes with some brief reflections on the state of the field and its outlook. | 8 |
| I. Scope and Significance | |
| What does this essay mean when it purports to review the history of “criminal justice administration” in “England” from “1650 to 1850”? | 9 |
| First, by “criminal justice administration,” I refer primarily to the “series of procedures through which the substantive criminal law is enforced,” including the formal laws and informal practices associated with policing, prosecution, pretrial processes, adjudication, and sentencing.19 But because of the vital interconnection between criminal procedure and the substantive criminal law, the essay addresses matters of both procedure and substance.20 | 10 |
| To some readers, even this seemingly expansive definition of “criminal justice administration” may appear unduly narrow. On the one hand, as Joanna Innes and John Styles have perceptively noted, it is impossible to separate “the history of law enforcement” from “the history of criminality”; at best, scholars can merely “shift the emphasis of analysis either toward the activities of the poor as lawbreakers or toward the activities of the law enforcers and lawmakers.”21 On the other hand, as Martin Wiener, Andrea McKenzie, Peter King, and others have made abundantly clear, the administration of criminal justice cannot be separated from the cultural, social, and economic settings in which the criminal law operates, including prevailing attitudes toward class, gender, age, ethnicity, and other categories of social and cultural experience.22 | 11 |
| In writing this essay, I have tried to keep these important admonitions in mind. With that said, considerations of both space and competence have compelled me to focus on the history of criminal justice administration rather than on the histories of crime or “penal culture.” Thus, the substantial—and, at times, highly suggestive—body of scholarship on the history of “crime” does not figure prominently in the pages that follow, except where this scholarship sheds light on the realm of criminal justice administration per se; in short, the essay makes no effort to identify or assess studies of particular categories of crime,23 individual perpetrators,24 or specific criminal acts.25 And while this review discusses a number of studies that consider the relationship between criminal justice and class,26 gender,27 ethnicity,28 or age,29 it makes no effort to situate them in the historiography of social-historical studies to which they contribute so importantly. | 12 |
| Second, the essay possesses a circumscribed geographic scope: it takes as its subject the history of criminal justice in England, not in Wales, Scotland, Ireland, the “Atlantic world,” or the British Empire more broadly. This is not to ignore the valuable contributions made by scholars in expanding the history of British criminal justice administration beyond its traditional English borders,30 or the rich sources that scholars have increasingly brought to bear on these subjects.31 Nor is it to underestimate the importance of legal developments in Britain’s vast overseas empire or to suggest that legal innovations necessarily spread from the metropolis to the periphery.32 To the contrary, as I argue in Part IV, there is much to learn from such scholarship—not only because such investigation is likely to be enlightening in its own right, but because it lays the basis for comparative scholarship across jurisdictions. Yet again, however, considerations of scope and expertise have limited my ambit. | 13 |
| Finally, and least problematic, the essay covers the period from roughly 1650 to 1850. By surveying this two-hundred-year span, I seek to break down the too-frequent division in English historical scholarship between “early modernists” and those studying the eighteenth and/or nineteenth centuries. Here, too, no doubt, some may find my sweep too narrow.33 Limiting the chronological scope in this way excludes several important studies, including Cynthia Herrup’s marvelous reconstruction of criminal justice administration in late sixteenth- and early seventeenth-century Sussex34 and Wiener’s provocative study of nineteenth- and early twentieth-century English criminal justice policy.35 Despite these limitations, the two centuries discussed here cover sufficient time to identify major developments, methodologies, sources, and problems. Those seeking assessments of the historiography of other centuries will need to await the issuance of fresh commissions. | 14 |
| With these preliminaries aside, why have scholars cared about the history of English criminal justice administration in the seventeenth, eighteenth, and nineteenth centuries? First, and perhaps most fundamental, “[t]he criminal justice process is the most explicit coercive apparatus of the state.”36 As such, the measures used by the state to define, investigate, prosecute, adjudicate, and punish “criminals” provide unique insight into conceptions of wrongdoing, “due process,” and individual liberty.37 In turn, the ways in which public officials and private individuals negotiate the law in practice reveal much about the limitations of formal law, the scope and status of discretion, and the extent that law—even when not enforced—structures societal actions and perceptions.38 | 15 |
| In all of these respects, however, the history of English criminal justice administration in the long eighteenth century would be no more (or less) important than the history of criminal justice administration in Inquisition-era Spain,39 eighteenth-century Mexico,40 Weimar Germany,41 or the twentieth-century United States.42 Yet several aspects of the history of English criminal justice administration from 1650 to 1850 have increased its salience to legal historians, social historians, and even legal practitioners. Legal historians have observed that English criminal justice administrators during these years pioneered a set of institutions and procedures that remains pivotal in common law jurisdictions to this day: adversary criminal procedure in cases of serious crime, including counsel and evidentiary rules; the first professionalized police forces in the Anglo-American world; and the first penitentiaries, whose creation set the stage for the now-dominant resort to imprisonment in cases of serious crime.43 Social historians have looked to the history of English criminal justice in seeking to explain, among other problems, how the English state retained power (and avoided revolution) in the absence of a standing army and a professionalized police force, even during an era of revolution abroad.44 Even judges and legal practitioners have periodically delved into the history of English criminal justice administration in the period from roughly 1650 to 1850, most typically in advancing interpretations of the Bill of the Rights to the United States Constitution, which was adopted in 1791 against the backdrop of the English common law.45 For these three reasons, and no doubt others, the history of English criminal justice administration in the seventeenth, eighteenth, and nineteenth centuries has assumed a prominence beyond that enjoyed by the “criminal justice histories” of virtually all other nations. | 16 |
| II. Foundational Studies | |
| By the time that Maitland offered his grim assessment of the historiography of English law in the late-1880s, his description was already only partly true: in truth, the history of English criminal law had actually begun to be written—a fact that Maitland knew and, indeed, readily conceded.46 In 1883, five years before Maitland assumed the Downing professorship, Sir James Fitzjames Stephen had published his three-volume History of the Criminal Law of England, which, while eschewing archival sources, offered a confident and insightful synthesis of the subject.47 And two years later, Maitland had himself published a compact study of English policing, prosecution, and adjudication.48 | 17 |
| To be sure, these early efforts bore little long-term fruit. After completing his History in 1883, Stephen never returned to legal-historical scholarship and died a decade later.49 Although Maitland would remain productive until his death in 1906 at the age of fifty-six, he would devote his attention almost exclusively to the medieval and early modern eras.50 In the early decades of the twentieth century, Sir William Holdsworth’s massive thirteen-volume History of English Law, published between 1903 and 1938, represented a stunning achievement; but the sweep of Holdsworth’s survey—covering, as it did, the history of equity, customary courts, the legal profession, legal literature, and a host of other subjects—left little room for a comprehensive investigation of criminal justice administration.51 When twentieth-century scholars first devoted sustained attention to the history of English criminal justice administration, they did so not from the perspective of legal history, but from the perspective of the emerging discipline of criminology. | 18 |
| A. Radzinowicz and Historical Criminology | |
| In 1938, Leon Radzinowicz, a Pole who had studied at the Universities of Paris, Cracow, and Rome, arrived in England for the purpose of studying the English criminal justice system. Ambitious, keenly intelligent, and armed with a letter of introduction from the Polish ministry of justice, Radzinowicz quickly established contacts with members of the law faculty at Cambridge, including J. W. C. (Cecil) Turner, a respected and innovative professor of criminal law.52 | 19 |
| Radzinowicz had the good sense (and good fortune) to forge these bonds at a time when the Cambridge law faculty was engaged in a significant reassessment of its approach to the subject of criminal law. In 1941, the Faculty Board of Law appointed a committee “to consider the promotion of Research and Training in Criminal Science,” a discipline deemed to encompass three topics: “Criminal Law,” covering the laws that defined substantive crimes and prescribed their corresponding punishments; “Criminology,” referring to the “origins of crime”; and “Criminal Policy,” meaning the best modes for criminal justice administrators to respond to criminal acts themselves.53 | 20 |
| Like other early twentieth-century scholars in the nascent field of criminology, the handful of proponents of “criminal science” at Cambridge sought to draw upon recent advances in the fields of genetics, anatomy, physiology, and psychology.54 But in seeking to understand the “social conditions” that influenced offenders, as well as the best ways for administrators to achieve reform, they also looked—in pioneering ways—to England’s legal-historical record.55 | 21 |
| No scholar dug more deeply into the published historical sources on English criminal justice administration than Radzinowicz. In the early 1940s, Radzinowicz, by now ensconced at Cambridge, undertook a massive survey of eighteenth- and nineteenth-century English parliamentary papers (or “Blue Books”) dealing with criminal justice administration.56 The effort was exhaustive, encompassing the review, assessment, and cataloging of 1,250 commission reports, 3,000 accounts and papers, 800 annual reports, and 5,000 other items extracted from over 1,000 volumes of parliamentary debates.57 As Radzinowicz aptly noted in 1943 in the pages of the Cambridge Law Journal, the “Blue Books” not only canvassed “the whole machinery of criminal justice” in England but exhibited an “originality, thoroughness and … importance” that, for historians of English criminal law, was indisputably unique.58 | 22 |
| By reading, digesting, and publicizing these official parliamentary papers, Radzinowicz also effectively created “a new starting-point” for the history of English criminal justice administration.59 Relying predominately on these sources, along with contemporary published tracts and occasional admixtures of archival materials, Radzinowicz proceeded from the late-1940s through the late-1960s to produce his magnum opus: a five-volume history of English criminal justice administration covering the period from 1750 to 1914. His first volume, subtitled The Movement for Reform, 1750–1833 (1948), focused on the expansion and administration of England’s eighteenth-century “Bloody Code” of capital statutes and on the dismantling of this statutory edifice during the early decades of the nineteenth century.60 The subsequent three volumes, which appeared between 1957 and 1968, mainly addressed developments in the realm of policing. They chronicled the efforts to professionalize the London-area police and the relative contributions of private individuals and public officials to the detection, investigation, and prosecution of criminal offenses.61 A final volume, co-authored with Roger Hood and published in 1986, examined developments during the Victorian and Edwardian eras and dealt extensively with the issues of juvenile criminality, summary (i.e., nonjury) proceedings, and imprisonment.62 | 23 |
| Packed with citations, bristling with appendices, and totaling more than 5,000 pages, Radzinowicz’s five weighty volumes defy easy summary. If an overarching theme emerges, however, it is the persistent effort of English parliamentarians and criminal justice administrators to “reform” criminal justice administration through the adoption of innovations in policing, prosecution, adjudication, and punishment.63 | 24 |
| As a teacher, scholar, government servant, and activist, Radzinowicz exercised a broad and undeniable influence.64 But despite its ambition, his five-volume history appears to have had little effect on faculties of English history, which, from the 1940s through the early 1960s, remained largely interested in political and economic topics.65 Furthermore, when historians, in the 1970s, first began to direct serious attention to eighteenth- and nineteenth-century English criminal justice administration, they tended to emphasize the partial, problematic, and, at times, hypocritical nature of “reform” and, as a consequence, to downgrade Radzinowicz’s five-volume study as “too whiggish and too concerned to show progress.”66 | 25 |
| To be sure, like other émigré scholars who had lived in the shadow of Nazism and later fled to England, Radzinowicz occasionally expressed reverence for English institutions, including the common law.67 It would be inaccurate and inadvisable, however, to dismiss Radzinowicz as a Whig apologist. In concluding that eighteenth-century English criminal legislation cannot be understood as the product of a coherent penal ideology, but should, instead, be viewed as the result of a “conflict of interests and aspirations,” Radzinowicz struck tones found in the scholarship of both contemporary Namierite historians and modern-day public choice theorists.68 And in noting that criminal laws could “have other purposes and effects which have nothing to do with [the] prevention of crime,” including the effort “to consolidate political or social regimes,” he presaged the types of criticisms later made by his critics.69 Indeed, we should not be shocked to learn that Radzinowicz, while an avowed liberal in political orientation, was preparing to engage seriously with the writings of Michel Foucault shortly before he died.70 | 26 |
| Yet the fact remains that Radzinowicz’s scholarship bore little resemblance to the works of historians in the 1970s who next took up the subject of English criminal justice administration in the long eighteenth century. This new crop of historians would approach the history of criminal law not as a guide to modern-day reform, but, rather, as a way of analyzing the modes of control exercised by political elites and as a means of hearing the long-muted voice of the working classes. | 27 |
| B. The “Warwick School” and “Critical” Social History | |
| In the 1970s, the English social historian E. P. Thompson and a group of his graduate students at the University of Warwick took up the subject of English crime and criminal justice in the eighteenth century as a means of chronicling “the experiences of the dispossessed and inarticulate”—or, in Thompson’s words, history “from ‘below.'”71 The crowning achievements of the so-called “Warwick School” of English criminal justice history occurred in 1975, with the publication of Thompson’s Whigs and Hunters: The Origin of the Black Act and a collection of essays entitled Albion’s Fatal Tree that featured contributions by Thompson, a pair of his graduate students, and others.72 | 28 |
| Whigs and Hunters examined the origins and implementation of the Black Act of 1723, a statute that criminalized a range of activities associated with the unauthorized taking of game. Introducing the book with the claim that the eighteenth-century British state “existed to preserve property,” Thompson proceeded to demonstrate the discretionary ways in which the English ruling class employed the game laws as a means of rural social control.73 Observing that “[t]he greatest of all legal fictions is that the law … evolves … by its own impartial logic … unswayed by expedient considerations,” Thompson emphasized the degree to which political considerations and discretion informed the workings of English criminal justice administration in ways that systematically favored those with power and disadvantaged those without.74 | 29 |
| Albion’s Fatal Tree, whose subjects ranged from popular protests against the anatomization of convicted murderers75 to the transmission of anonymous threats,76 led off with a precocious and provocative essay by Douglas Hay that attributed the selective application of capital sanctions in eighteenth-century England to the effort by ruling elites to govern through a mixture of terror, majesty, discretion, mercy, and deference.77 Hay characterized English criminal justice, with its “punctilious attention to forms” and its “dispassionate and legalistic exchanges between counsel and the judge,” as “a power with its own claims” and a critical factor “in sustaining the hegemony of the English ruling class.”78 | 30 |
| Ambitious in scope, indignant in tone, and grounded in sustained archival labors, the scholarship of the Warwick group in the 1970s, in the words of David Eastwood, “opened up crime and the law as the terrain for some of the most fertile social history to be published” in the ensuing decade.79 In adopting what might be styled a “critical”80 perspective on the history of English criminal law, scholars associated with (or inspired by) the Warwick School focused on the ways that political, economic, and social conditions exogenous to the legal system affected the goals and methods of criminal justice administration and, in turn, how the criminal justice system helped constitute such conditions. Many of the studies that emerged in the late-1970s focused on crimes that pitted the laboring against the propertied classes, including studies of poaching, wrecking, coining, riot, and, of course, theft.81 Over time, scholars working on the “social history” of crime increasingly drew upon (either implicitly or explicitly) a range of critical theoretical perspectives, including Marxian and Gramscian theory, the sociology of deviance and “social control,” and the writings of Foucault. | 31 |
| Beginning in the late 1970s and early 1980s, historians such as John Langbein, John Beattie, and Peter King began to chart a different course, directing their attention to the history of legal institutions and procedures. Although these historians understood full well that elites (including parliamentarians, magistrates, and judges) effected criminal justice policy, and that non-elites typically bore the burdens of the criminal law, they tended to emphasize how the criminal law also protected non-elite victims. In identifying the gaps between the goals of criminal justice administrators and the results they were actually able to achieve, these scholars also stressed the limits of criminal law as a means of social ordering. By focusing on mainstream property offenses such as larceny, and by broadening their research to include crimes of violence, they offered a more representative and comprehensive portrait of the criminal law than was possible by studying crimes such as poaching, smuggling, or wrecking. Finally, and perhaps most importantly, by focusing on the principal institutional actors involved in criminal justice administration, including victims, defendants, lawyers, magistrates, juries, and judges, these scholars placed themselves in a stronger position to understand the interconnections among the various stages of criminal justice administration, including the vital relationship between pretrial and trial procedure. For all of these reasons, the body of scholarship produced by these scholars in the 1980s (and beyond) has proven particularly influential and enduring. | 32 |
| C. Langbein and Beattie: The Ascendancy of Criminal Justice History | |
| A pair of articles published by Langbein in the University of Chicago Law Review in 1978 and 1983 signaled the shift toward a more sustained investigation of institutions and procedures, including, most importantly, the functioning of criminal jury trial.82 Langbein’s articles charted the development of eighteenth-century trial procedures at the Old Bailey, the court for the adjudication of felony offenses arising in the City of London and County of Middlesex. Rather than relying on the published accounts of “state trials” previously examined by legal scholars,83 which chronicled cases of political impact such as treason and sedition, Langbein tapped two sets of sources hitherto unexplored by historians of criminal justice administration: the Old Bailey Sessions Papers, popular accounts of trials at the Old Bailey published from the 1670s;84 and the handwritten trial notes of the English judge Dudley Ryder, taken in shorthand, which confirmed that the accounts in the Sessions Papers reported events accurately, though by no means completely.85 | 33 |
| In these articles, a series of later pieces, and a later book (The Origins of Adversary Criminal Trial [2003]), Langbein fundamentally transformed the preexisting and highly incomplete understanding of eighteenth-century English criminal procedure.86 Among Langbein’s many important contributions, three emerge with particular prominence. First, he furnished the first convincing explanation of the origins and later development of adversary criminal trial, demonstrating that prosecution counsel originally appeared at the Old Bailey in the 1710s and that defense counsel appeared two decades later, when trial judges appear to have permitted their entry into the courtroom as a means of balancing the scales. Second, having located the origins of adversary criminal trial in the early decades of the eighteenth century, he attributed the advent of a series of enduring safeguards—including the hearsay rule, the privilege against self-incrimination, and the “beyond-reasonable-doubt” standard of proof—to adversarial proceedings, thus situating their emergence in the eighteenth century (rather than in the seventeenth, as had prior historians).87 Finally, he argued that English legal innovations adopted at the trial stage frequently sought to correct for persistent defects in pretrial practice—including, most notably, the system’s rudimentary methods of policing and pretrial investigation. | 34 |
| The publication of John Beattie’s Crime and the Courts in England, 1660–1800 (1986) provided the first comprehensive study of eighteenth-century English criminal justice administration at the county level.88 Massively researched, meticulously crafted, quantitatively sophisticated, bold, balanced, and empathetic, Beattie’s work remains a stunning and humbling achievement. Beattie fundamentally revised the nature and timing of legal-historical developments in English criminal law in the period before 1800. By emphasizing the persistent search for alternatives to capital punishment throughout the long eighteenth century, Beattie demonstrated the occasionally crippling limitations of a system that relied so heavily on terror—a theme that would emerge again in later writings by Beattie and by his former doctoral student, Simon Devereaux.89 And by stressing the extent to which juries mitigated the rigors of the “Bloody Code” by acquitting defendants and returning “partial” (i.e., non-capital) verdicts, Beattie also sensitized readers to the gap between the ambition and the limits of law—a theme emphasized in later works by King, among others.90 | 35 |
| In theory, the scholarship on criminal justice administration that emerged in the late 1970s and mid-1980s might have coexisted peaceably with the critical, social-historical scholarship that had preceded it. On the one hand, Beattie’s scholarship in the 1970s and 1980s exhibited considerable sensitivity to the relationship between criminal justice, class, and gender;91 Langbein, for his part, would later draw attention to “the wealth effect” of adversary criminal trial—that is, the profound disadvantages faced by indigent defendants in compiling evidence and putting on a defense at trial.92 On the other hand, the historians associated with the Warwick School claimed to take legal doctrine seriously. In the concluding chapter of Whigs and Hunters, Thompson had warned about the dangers of a “slide into structural reductionism” and of characterizing “the rule of law” as nothing more than the simple equation “law = class power”;93 by the early-1980s, Hay had taken up a position in a Canadian law faculty, where he would write compellingly about the importance of “taking statutes seriously.”94 | 36 |
| The prospects for peaceful coexistence dimmed, however, with the publication, in 1983, of Langbein’s “Albion’s Fatal Flaws,” a trenchant critique of Hay’s “Property, Authority and the Criminal Law,” published in Past & Present, the leading Oxford-affiliated historical journal.95 Observing that Hay’s essay had “attracted a huge following, especially outside specialist legal history circles,” Langbein proceeded to mount a series of attacks. Pointing to as-yet unpublished data compiled by King, which demonstrated the degree to which “middling” persons and even the laboring poor resorted to the criminal law,96 Langbein argued that “[t]he criminal law and its procedures existed to serve and protect the interests of the people who suffered as victims of crime, people who were overwhelmingly non-élite.”97 Focusing on the routine entry of both acquittals and “partial verdicts” by eighteenth-century felony juries, Langbein argued that such verdicts not only reflected “principled and predictable” assessments of the evidence, but were utterly inconsistent with the notion of “a ruling-class conspiracy to use the criminal law to terrorize the lower orders.”98 Relying on the Ryder notebooks, Langbein observed that decisions relating to clemency—which, admittedly, depended on the actions of those in power—reflected a “principled” assessment of factors such as offense gravity and offender motivation and also, at times, rejected the efforts of prominent political figures to intervene on behalf of the condemned.99 Turning to the writings of Radzinowicz, Langbein observed that the “Bloody Code” could best be understood as an effort to address fundamental failings in the institutions of English criminal justice, most notably, the failure to develop a professionalized police force and a workable alternative to capital punishment.100 With respect to the procedural safeguards that emerged in eighteenth-century English criminal procedure, Langbein accused Hay of engaging in “the legitimation trick,” whereby “the pervasive legalism of English criminal procedure” (including the “strict construction” of penal statutes and the “quashing of strong prosecution cases for technical flaws”) was recast as “a sub-plot to make the conspiracy more palatable to its victims.”101 Finally, Langbein argued that “[t]he criminal law is simply the wrong place to look for the active hand of the ruling classes” and that other legal realms, such as the employment contract, are likely to order society far more effectively and systematically.102 | 37 |
| Pungent, confident, and stylistically masterful, the two essays that composed the Hay-Langbein colloquy quickly became a fixture on undergraduate and graduate reading lists. The issues framed by the exchange, including the degree to which the criminal law exhibits class bias and the extent to which law should be understood as an endogenous or exogenous phenomenon, would also prove germinal. Both Hay and King would go on to write incisive articles on the composition of English trial juries, shedding further light on the degree to which English criminal justice administration reflected the interests of the many or the few.103 Later work by Hay on the master-servant laws stressed that eighteenth-century English criminal law, far from being tangential to the employment relationship, actually defined its contours in many areas of employment.104 Langbein, for his part, would later emphasize the ways in which adversary criminal trial systematically disadvantaged the poor, by favoring parties with the means to retain counsel, by denying public subsidies to defendants seeking lawyers, and by perpetuating the notion that the interests of the unrepresented defendant could be protected adequately by the presiding trial judge.105 | 38 |
| Yet in other respects, regrettably, the publication of Langbein’s essay hardened the fracture between social and legal history. The principal retort to Langbein, published by Peter Linebaugh, was rambling, incoherent, and littered with ad hominem outbursts.106 For his part, Langbein continued to criticize scholarship associated with the Warwick School as insufficiently nuanced and excessively romantic.107 But while these exchanges created little space for rapprochement, the broader issues framed by the engagement would continue to occupy scholars in the period after 1986. | 39 |
| III. Post-1986 Studies and Themes | |
| In the past two decades, scholars of English criminal justice administration in the seventeenth, eighteenth, and nineteenth centuries have continued to address issues of importance to their predecessors, including the expansion and application of the “Bloody Code,” the balance of “public” and “private” initiative in criminal justice administration, and the nature of adversary criminal trial. But scholars have also departed from the subjects pursued in earlier studies, demonstrating heightened attention to the dynamics of parliamentary lawmaking, the varying roles played by magistrates and police officers in the process of prosecution, and the importance of misdemeanor justice. Part III addresses the leading studies and principal findings of the past two decades, focusing on six areas of inquiry: criminal legislation; policing; prosecution; pretrial procedure; adjudication; and punishment. | 40 |
| A. Criminal Legislation | |
| The history of criminal legislation—particularly, the expansion and administration of England’s eighteenth-century “Bloody Code,” which grew from roughly fifty capital statutes at the time of the Glorious Revolution in 1688 to over two hundred by 1820—figured prominently in the writings of Radzinowicz, Thompson, Hay, Langbein, and Beattie. Over the past two decades, specialists in eighteenth-century legislation, led by Joanna Innes, have shed additional light on the role played by capital statutes in England’s eighteenth-century criminal justice system, the motivations of parliamentarians who supported (or opposed) penal legislation, and the uses to which enacted laws were put. | 41 |
| This scholarship has enhanced our understanding of criminal legislation in the long eighteenth century in three principal respects. First, echoing Langbein and Beattie, Innes and her co-author John Styles have convincingly argued that a mere counting of capital statutes overstates the significance of Parliament’s extensive statutory output.108 Most persons put to death in the eighteenth century for violating capital statutes were punished under acts, such as ones addressing burglary (1547) and horsestealing (1548), that had been passed by Parliament in the sixteenth, not the eighteenth, century.109 In turn, several capital statutes passed during the eighteenth century dealt with quantitatively insignificant offenses, such as the destruction of particular bridges or the forging of entries in land registers in the North Riding of Yorkshire.110 | 42 |
| Second, Innes and her collaborators (in part, through painstaking enumeration of failed bills) have drawn attention to the limits of legislation as a means of advancing social goals.111 At times, parliamentarians eschewed capital statutes altogether, passing measures that vested magistrates with the authority to adjudicate cases summarily and to inflict modest penalties upon convicted defendants, suggesting that the “Bloody Code” needs to be understood alongside its less stringent, “bloodless” counterpart.112 Even those bills that managed to pass into law might be shorn of potentially controversial clauses to hasten or ease their passage.113 Once enacted, criminal statutes often confronted judges doubtful of the desirability of legislative alterations to the common law.114 | 43 |
| Finally, ongoing research into the motivations for particular legislative initiatives in the area of criminal law has demonstrated that such measures did not always emerge haphazardly, but often resulted from sustained lobbying campaigns to correct perceived defects in preexisting law.115 In his titanic 2001 study of criminal justice administration in the City of London from 1660 to 1750, Beattie has drawn attention to the persistent efforts of the Common Council to secure the passage of acts designed to improve lighting and policing.116 Randall McGowen has demonstrated how the Bank of England secured legislation that permitted the Bank to secure guilty pleas by availing themselves of a statutory forgery offense that did not involve the imposition of the death penalty.117 Efforts in the eighteenth century to correct loopholes in the law of theft proved no less calculating.118 To be sure, a host of factors—ranging from political self-interest, to “panics” about certain types of crime, to the primitive state of thinking about criminal responsibility119—ensured that the English substantive law of crimes would continue to confound reformers into the middle decades of the nineteenth century.120 On balance, English penal statutes appear to have been more cautious, contingent, and coherent than the assessments of contemporary critics (and certain later scholars) might suggest. | 44 |
| B. Policing | |
| The history of English policing, which was especially prominent in Radzinowicz’s five-volume history, has continued to attract sustained attention in the period after 1986. Recent studies have revealed that reform of London-area policing occurred in an incremental fashion, often at the behest of local authorities, and well before the so-called advent of professionalized policing in 1829.121 Studies have also expanded our understanding of policing outside of London, though, to be sure, the subject remains comparatively unexplored.122 And ongoing scholarship by Beattie has begun to shed light on the history of the Bow Street Runners, an elusive group of professionalized police long recognized as important but long consigned to general survey histories.123 | 45 |
| Much, of course, remains to be learned. Although it is possible to chart the shifting statutory contours of police organization and authority, we need to know more about informal policing practices, including the role of police officers in interrogating suspects; in this regard, Beattie’s marvelous discovery that the Runners occasionally sought to persuade suspects to “squeak” during sessions at the “Brown Bear” (a pub across from the Bow Street Public Office) provides some sense of the extensive informal authority exercised by officers in such settings.124 Given the broad discretion exercised by modern-day police officers, especially in “low-level” encounters not involving arrest,125 we would ideally like to know more about informal police practices on the streets, including methods for dealing with inebriates and vagrants. | 46 |
| And we would like to know more about other forms of “policing” activity, including the types of surveillance performed by turnpike keepers, foremen, and warehouse employees, as well as the investigative tasks performed by insurance companies and solicitors.126 We also need to understand better how these varied modes of privatized policing coordinated with the efforts of public officials, a theme explored profitably by Radzinowicz but still ripe for investigation. Recent studies of the shifting conceptions of “police” in late eighteenth-century England may also help us to understand better an enduring mystery: how the English managed to develop a professionalized police force and magistracy in the 1790s (and beyond) in a context of emphatic public opposition to “French-style” policing.127 | 47 |
| C. Prosecution | |
| With virtually no exceptions, historians of English criminal justice administration have argued that English criminal prosecution, at least before the last quarter of the nineteenth century, was overwhelmingly “private” in nature.128 In this system, private victims (or their kin) allegedly initiated and managed the vast number of criminal prosecutions, seeking to recover costs, secure rewards, or organize themselves into prosecution societies designed to spread the private financial burden of criminal prosecution.129 Several recent studies, including examinations of private thief-takers130 and out-of-court settlements,131 have likewise emphasized the degree to which private victims (or their kin) initiated and managed the process of criminal prosecution. | 48 |
| By contrast, several recent studies have begun to qualify the long-standing portrait of English criminal prosecution as overwhelmingly “private” in nature. Recent scholarship by Langbein has emphasized the extent to which prosecuting solicitors retained by quasi-governmental entities such as the Mint, the Bank of England, the Treasury, and the Post Office engaged in pretrial investigations of offenses deemed to affect the interests of the state.132 In the realm of misdemeanor justice, I have argued that summary proceedings before magistrates, which routinely required suspects to account for the possession of suspicious goods found in their possession, effectively dispensed with the need for private victims capable of testifying credibly to the ownership of the goods in question, thus permitting police officers to initiate and manage prosecutions.133 | 49 |
| The prevailing view has been that private prosecutors had a virtual monopoly on English criminal prosecution before the latter half of the nineteenth century. Although this orthodoxy has begun to break down, much about the process of prosecution remains unexplained. As Clive Emsley has correctly observed, the origins, mechanisms, and scope of prosecutions initiated and managed by the police in the higher courts—increasingly under the supervision of “police solicitors”—stand out as perhaps the most critical and dimly understood prosecutorial developments of the nineteenth century.134 In turn, the relationship between criminal and civil remedies for offenses such as assault or trespass remains underexplored. And the extent to which self-defense or other forms of self-help may have served as either substitutes for (or adjuncts to) formal criminal prosecution remains largely terra incognita. | 50 |
| D. Pretrial Procedure | |
| Langbein and Beattie, who focused on the institutional and procedural setting of English criminal justice, have long emphasized the important interconnections between pretrial and trial procedure. Indeed, Langbein’s earliest scholarship on the history of English criminal procedure addressed the passage and function of the sixteenth-century English statutes that required justices of the peace (JPs) to examine complainants, witnesses, and suspects and bind them over to trial.135 Beattie’s Crime and the Courts, for its part, drew attention to the scope of discretion employed by magistrates in pretrial proceedings and the degree to which grand juries operated as independent checks on criminal prosecutions.136 | 51 |
| In recent years, Langbein and Beattie have continued to advance our knowledge of pretrial procedure, a domain that has long remained obscure. Langbein has clarified the role played by prosecution solicitors in compiling evidence prior to trial on behalf of their institutional and private clients.137 Beattie has demonstrated the ways that eighteenth-century magistrates in London exercised discretion in the pretrial phase, not only by examining certain suspects on multiple occasions prior to trial but, at times, by dismissing their cases altogether.138 King—arguably the most prolific and wide-ranging scholar of eighteenth- and nineteenth-century English criminal justice administration to emerge since the early 1980s—has emphasized how magistrates exercised discretion in publicizing, investigating, and dismissing criminal cases and in encouraging settlements between complainants and suspects.139 Scholars have also shed light on several other topics bearing on pretrial procedure, including the role played by magistrates in coordinating investigations across geographic regions.140 | 52 |
| Much still remains unanswered. Although Beattie has begun to shed light on interrogation practices, we would like to know more about the methods used by magistrates in examining suspects prior to trial, including the issuance of informal and formal cautions.141 We still know little about the role played by magistrates’ clerks, both in the pretrial process and at trial.142 We also know little about how the transformation of the preliminary hearing into a stage in which criminal allegations were “screened” affected the legal role and political stature of grand juries, which were abolished in England in 1933. | 53 |
| E. Adjudication | |
| Following Langbein’s lead, scholars in the past twenty years have written extensively about the development of adversary criminal procedure: Allyson May has chronicled the creation of a distinctive “Old Bailey bar”;143 Christopher Allen has explored the proliferation of the law of criminal evidence;144 and, most recently, Tom Gallanis has advanced a novel theory for the increased appearance of defense counsel at the Old Bailey during the 1780s.145 This research is only the tip of the iceberg.146 | 54 |
| Until recently, however, scholars knew virtually nothing about the disposition of criminal cases by magistrates.147 In recent years, research by King, myself, and others has begun to shed light on these long-obscured matters.148 Scholarship has made clear that magistrates disposed of a wide range of offenses—including, at least in London, a considerable quantity of theft-related offenses—in proceedings that dispensed with several important attributes of adversary criminal trial, including, in most cases, lawyers and evidentiary rules.149 The breadth, quantity, and stripped-down procedural style of these proceedings reveals that the so-called “adversarial” nature of felony proceedings coexisted alongside mechanisms that routinely avoided safeguards associated with adversary criminal trial. | 55 |
| Of all areas of English criminal justice history in the two centuries before 1850, our knowledge of adversary criminal trial is perhaps the most extensive. Nonetheless, intriguing questions remain. To what extent did the tactics of lawyers in the courts of Westminster overlap with the forensic techniques employed by them in criminal cases, particularly with respect to evidentiary objections?150 Does the allegedly increasing “complexity” of criminal cases adequately explain the emergence of plea bargaining in nineteenth-century England?151 Did the factors that contributed to the declining resort to civil jury trials in the middle decades of the nineteenth century also contribute to the decline of criminal jury trial?152 And how did English criminal justice administrators square their frequent resort to summary proceedings and, later, plea bargaining with the historic commitment to criminal jury trial?153 | 56 |
| F. Punishment | |
| The history of punishment has likewise figured prominently in recent studies of English criminal justice administration in the long eighteenth century. As in the pre-1986 period, studies of the death penalty have predominated. The most notable contribution in this regard has been Vic Gatrell’s The Hanging Tree (1994), which, in the critical vein of the Warwick School, portrayed the royal judges who administered the death penalty as “ermined homicides” and the officials at the Home Office who handled pardon petitions as cynical timeservers and opportunists.154 | 57 |
| Other studies have presented a more balanced, more restrained, and (ultimately) more convincing portrait of the role of capital punishment in eighteenth- and nineteenth-century English society. In a series of penetrating studies, Randall McGowen has added immeasurably to our understanding of the movement to abolish the death penalty by taking seriously the contributions and contradictions of religious sentiment, humanitarianism, and Enlightenment thought.155 McGowen and his co-author Donna Andrew have explored the occasionally ambivalent attitudes of private prosecutors and jurors to the prospect of capital sanctions in forgery cases.156 The notion that the capital sanction was cabined by prudential limits also figures prominently in the recent scholarship of Devereaux, who suggests that, by the late-1780s, some public officials in England expressed concern that executions might lead to an excessive loss of life and a corresponding loss of political authority.157 | 58 |
| The problem of post-conviction claims of innocence has emerged in recent years as an intriguing and underexplored subject of study. Condemned felons, as McKenzie has noted, occasionally expressed their defiance by asserting their innocence on the gallows.158 In the early nineteenth century, as Gatrell has demonstrated, the defense solicitor James Harmer took up a claim of innocence after one of his clients had been hanged.159 Prominent legal commentators such as Mathew Hale, William Blackstone, and Samuel March Phillipps also expressed considerable concern about the grim specter of wrongful execution.160 As we continue to learn more about contemporary attitudes to miscarriages of justice, and the risk of such miscarriages, we may gain additional insight into both the administration and decline of capital punishment in eighteenth- and early nineteenth-century England. | 59 |
| Historians have also devoted considerable attention to non-capital modes of punishment, including transportation,161 imprisonment,162 whipping,163 and orders to enter military service.164 More work remains to be done on the decisional calculus associated with these punishments, the experiences of those subjected to them, and the ways that punishments followed (or departed from) the strictures of the formal law. Here, King’s Crime and Law in England, 1750–1840: Remaking Justice from the Margins, with its study of juvenile reformatory sentences, offers what is perhaps the most ambitious model for future work.165 As historians direct further attention to the emergence and use of imprisonment, opportunities may exist to bridge the unfortunate divide between social and legal history. Research on the ways that the legal system dealt with persons who escaped from prison or returned prematurely from terms of transportation may help reveal how such punishments were experienced by those subjected to them.166 By the same token, further research into how convicts perceived punishments such as confinement to the hulks or transportation to Botany Bay may provide insight into the legal strategies that they pursued, including, as Gallanis has suggested, the increased resort to defense counsel in the 1780s.167 | 60 |
| IV. Future Prospects | |
| The final portion of this essay discusses, in Part A, the recent revolution in sources on the history of English criminal justice administration in the long eighteenth century. Parts B and C then return the discussion to Maitland, examining a pair of methodological avenues he suggested that may yet prove promising. | 61 |
| A. Source Materials | |
| Like other historians of English law, historians of English criminal justice administration working in the period from 1650 to 1850 confront an embarrassment of riches. If anything, the decentralized nature of English criminal justice administration makes the process of historical reconstruction even more challenging than Maitland himself had described, focused, as he was, on the archival output of the central courts in Westminster. Moreover, a host of newly released commercial products has expanded the available range of materials still further. These sources include digitized versions of the Old Bailey Sessions Papers, currently covering trials from 1674 to 1834;168 CD-ROM versions of both the English Reports169 and English state trials;170 a 150,000-volume collection of eighteenth-century English-language publications, including many volumes devoted to law;171 a 22,000-volume compendium of nineteenth-century Anglo-American legal treatises;172 digitized collections of eighteenth- and nineteenth-century parliamentary papers;173 full-text versions of contemporary English newspapers;174 and microfilm versions of the Police Gazette, which reported information from the metropolitan police offices relating to escaped offenders, stolen property, and committals.175 Historians have already begun to capitalize on these sources: for example, Gallanis, among other contributions, has demonstrated the potential of the CD-ROM version of the State Trials collection to shed light on the development of the eighteenth-century law of evidence.176 | 62 |
| But while scholars who avail themselves of these sources can certainly undertake research more efficiently, they will continue to need to adopt productive approaches. In this regard, I wish to suggest that Maitland offered methodological suggestions in the 1880s that remain helpful even in the digital age. Indeed, as scholars consider the types of questions that might be asked of these sources, they should keep two of Maitland’s recommendations in mind: first, the benefit of engaging in comparative legal-historical scholarship; and, second, the virtue of bridging the fields of criminal justice history and the scholarship currently being produced on Anglo-American law faculties. | 63 |
| B. Comparative Perspectives | |
[T]here is nothing that sets [one] thinking and writing to such good effect about a system of law and its history as an acquaintance however slight with other systems and their history.177Maitland strongly believed in the advantages of comparative legal-historical study. As he observed in the 1880s, the “complete and traditionally consecrated ignorance of French and German law” tolerated by English legal historians had retarded the growth of English legal-historical scholarship. In turn, “by overrating and antedating the triumphs of Roman law upon the continent,” English lawyers had “exaggerated the uniqueness of [English] legal history,” neglecting areas of shared institutional design and purpose.178 | 64 |
| As suggested above, ongoing scholarship on the enactment and enforcement of master and servant legislation in Britain and its empire has demonstrated the immense value of a rigorous comparative method as a means of identifying convergences and divergences among common law jurisdictions, as well as of characterizing the causes and rate of legal-historical change.179 Across the common law and civil law divide, Jim Whitman has recently demonstrated the rich potential for comparing the Anglo-American punishment regime with continental models.180 But while Maitland’s plea for comparative legal-historical study remains compelling, it remains largely unanswered. Despite a surge of interest in “Atlantic history,” the British Empire, and the law of the Celtic fringe, only a few studies have compared developments in England with contemporaneous developments in any other jurisdiction.181 | 65 |
| As presaged by Maitland, comparative efforts might help to scrutinize various claims about English “exceptionalism,” such as the nation’s allegedly overwhelming resort to “private” prosecution and its seemingly delayed resort to plea bargaining. Quite possibly, comparative legal-historical scholarship would demonstrate that jurisdictions often shared common problems and common solutions, and that claims of national exceptionalism are likely to have been overstated. | 66 |
| C. Interdisciplinary Perspectives | |
A mixture of legal dogma and legal history is in general an unsatisfactory compound…. [But] [a]re we to say then that the study of modern law and the study of legal history have nothing to do with each other? That would be an exaggeration….182Maitland, like later scholars, recognized the dangers of mixing “law” and “history.”183 Indeed, he expressed his views in this regard in characteristically blunt fashion: “What the lawyer wants is authority and the newer the better; what the historian wants is evidence and the older the better.”184 With that said, he recognized the ways that legal history might benefit from cross-fertilization with criminal law as taught by legal scholars. Indeed, as we have seen, the historiography of English criminal justice administration first emerged at Cambridge in the 1930s and 1940s through a close collaboration between historians and criminal law scholars.185 | 67 |
| Yet cross-fertilization between English criminal justice history and the scholarship of academics on English, American, or Canadian law faculties working in the fields of criminal law and criminal procedure has remained modest. At times, U.S. scholars of criminal law and procedure (much like U.S. jurists) have delved into the realm of English criminal justice history as a guide to constitutional interpretation.186 But historians of English criminal justice administration have largely failed to engage with the methods and findings of criminal law scholars. | 68 |
| While perhaps blissful, this ignorance is undesirable. To what extent might an understanding of the eighteenth-century “Bloody Code” be informed by modern-day scholarship on the expressive impact of law?187 To what extent does empirical writing on the so-called “broken windows theory” shed light on whether the decline of theft and violence in Victorian England might be attributable to a heightened focus on “quality of life” offenses?188 Can the origins and demise of private prosecution societies be fruitfully examined through the lens of law-and-economics?189 Might historians of the eighteenth-century death penalty benefit from reading modern-day empirical analyses of the clemency process?190 And could historians interested in the rise of plea bargaining in mid-nineteenth century England, who have focused largely on the causative role of increasing case complexity, benefit from incorporating recent empirical efforts to measure judicial perceptions of complexity?191 In the past, historians of English criminal justice have exhibited a willingness to draw upon the works of sociologists of deviance and Foucauldian philosophy. The time may be ripe to incorporate the insights of scholars on law faculties who actually specialize in the criminal law and whose legal expertise and social-scientific orientation may dovetail well with the concerns and questions of criminal justice historians. | 69 |
| Conclusion | |
The day may come when … [the barrister] will confess that he is not going to succeed, when he is weary of waiting for that solicitor who never comes, when the prolonged and costly education seems thrown away. That is the hopeful moment…. [I]n that day of tribulation may it be remembered that the history of English law has not been written.192As this concluding extract reveals, Maitland offered both a diagnosis and a cure for the ills of English legal history as a scholarly subject. If circumstances became sufficiently “dismal,” a small cadre of “briefless barristers” might exit their chambers, walk the short distance to the Public Record Office, and turn their steely powers of concentration to the “humble work” of “arranging,” “digesting,” and “making serviceable” the “glorious store” of legal-historical materials that resided there.193 | 70 |
| I do not wish to conclude on such a depressing or, for that matter, unrealistic note.194 As this essay goes to press, several major studies of English criminal justice administration have been (or soon will be) published. Peter King’s new book, the successor to his pathbreaking Crime, Justice, and Discretion in England, 1740–1820 (2000), will no doubt invite a fundamental rethinking of the ways that eighteenth-century English criminal law was transformed and applied, stressing the roles played by magistrates and interest groups at the local level in fashioning criminal justice at both a formal and informal level.195 Andrea McKenzie’s forthcoming history of the English death penalty from 1675 to 1775, earlier versions of which have already won prestigious legal-historical awards, promises to shed additional light on a subject that remains critical to our understanding of eighteenth-century criminal justice policy.196 Our knowledge of English punishment practice will be further advanced by Simon Devereaux’s forthcoming book, which will furnish a detailed reconstruction of the central government’s capital punishment policy in the late eighteenth century.197 And in the not-too-distant future, we can expect to see the first comprehensive treatment of summary justice in eighteenth- and nineteenth-century London.198 | 71 |
| To be sure, the two disciplines that initially fueled the field of English criminal justice history and sustained it for nearly a half-century—criminology and social history—now appear to have little use for the subject. Several scholars who figured prominently in the field of English criminal justice history in the 1970s and 1980s have, in recent years, shifted their research agendas to new areas.199 Recent doctoral students, at least in the United Kingdom, have exhibited similar disinterest in the field of criminal justice history: my rough empirical survey of doctoral degrees ongoing in the UK in 2005 revealed only a handful that address the history of criminal justice.200 | 72 |
| With that said, we are hardly at the stage of enlisting barristers to defect from their chambers to the desks of the National Archives. A talented cohort of students who earned Ph.D.s in the 1990s currently resides in Canadian universities.201 Leading historians of criminal justice in Britain continue to train the occasional graduate student interested in the field.202 And a small corps of scholars of English criminal justice history teach in American law schools, often having obtained joint-degree training in law and history. | 73 |
| From his vantage point on the Cambridge law faculty, in an intellectual climate that increasingly esteemed the profession of the legal academic, Maitland took the position that “a thorough training in modern law is almost indispensable for any one who wishes to do good work on legal history.”203 According to Maitland, a scholar would likely lack “the patience to study medieval procedure and conveyancing unless he … [first] had to study modern procedure and conveyancing and to study them professionally.”204 | 74 |
| Unlike Maitland, I doubt whether prior exposure to the mundane necessarily fosters either tolerance or expertise. I also do not think that training in the law provides scholars with any distinctive advantage in dispatching many of the mundane tasks of the legal historian: untying wretched knots; inhaling coal dust; reading indecipherable scrawl; and piecing the shards together into a coherent narrative. With that said, I do think that the increasingly comparative and interdisciplinary orientation of American legal education may equip students and scholars who are exposed to this training with the tools to take up Maitland’s pair of methodological suggestions. With many questions left to tackle, and a wealth of sources newly available, the history of English criminal justice administration in the long eighteenth century should not need to rely on failed barristers to ensure its long-term survival and success. |
Bruce P. Smith is a professor of law and co-director of the Legal History Program at the University of Illinois College of Law <[email protected]>. The author would like to thank Pete King for his encouragement during the early stages of this essay, the journal’s anonymous reviewers for their comments, and David Tanenhaus for proposing the project and seeing it to fruition.
Notes
1. F. W. Maitland, Why the History of English Law Is Not Written: An Inaugural Lecture Delivered in the Arts School at Cambridge on 13th October, 1888 (London: C. J. Clay & Sons, 1888). Maitland’s original theme has spawned several variations. See, for example, J. H. Baker, “Why the History of English Law Has Not Been Finished,” Cambridge Law Journal 59 (2000): 62–84 and Bruce Kercher, “Why the History of Australian Law Is Not English,” October 2000, <http://www.law.mq.edu.au/html/staff/kercher/Castles.htm> (20 December 2006). Biographical studies of Maitland include G. R. Elton, F. W. Maitland (New Haven: Yale University Press, 1985); H. A. L. Fisher, Frederic William Maitland, Downing Professor of the Laws of England: A Biographical Sketch (Cambridge: University Press, 1910); and S. F. C. Milsom, “Maitland, Frederic William (1850–1906),” Oxford Dictionary of National Biography [hereinafter ODNB], <http://www.oxforddnb.com/view/article/34837> (20 December 2006).
2. Maitland, Why the History of English Law Is Not Written, 5–6.
3. Ibid., 19.
4. On fenland reclamation in England, see H. C. Darby, The Changing Fenland (Cambridge: Cambridge University Press, 1983). As S. F. C. Milsom has noted, the bleak tone of Maitland’s lecture coincided with his initial experience with a bout of diabetes-related illness. See Milsom, “Maitland,” ODNB.
5. And much remains to be done. See Baker, “Why the History of English Law Has Not Been Finished.”
6. Among professional organizations, the Selden Society (<http://www.law.harvard.edu/programs/selden_society/pub.html#av>) and the Ames Foundation (<http://www.law.harvard.edu/programs/ames_foundation/main.html>) have played particularly prominent editorial roles. Among scholars, Sir John Baker, the current holder of the Downing professorship at Cambridge, deserves special mention for cataloging archival holdings and publicizing migrations and accessions of legal-historical manuscripts. See, for example, Baker’s Catalogue of the Manuscript Year Books, Readings, and Law Reports in the Library of the Harvard Law School (Zug, Switzerland: Inter Documentation Co., 1975) and his periodic updates on migrations and accessions in The Journal of Legal History. Archival research in the area of English history has been eased by the creation of online finding aids (such as Access to Archives, <http://www.a2a.org.uk/>), as well as by a generally permissive approach to the use of digital photography by researchers (see National Archives, Self Service Photography of Records: Policy, November 2006, <http://www.nationalarchives.gov.uk/documents/photopolicy.pdf> [20 December 2006]).
7. For a discussion of these sources, see below Part IV(A). Some sense of the magnitude of this recent publishing revolution can be gained by comparing Maitland’s analogous dream: to make copies, from the original parchment records (or “plea rolls”), of England’s earliest recorded legal cases. “[T]hink of the tons of unprinted plea rolls. It is impossible to print them all; but think what ten men might do in ten years, by selecting, copying, indexing, [and] digesting; the gain would be enormous, not merely for the history of English law, but for the history of law in general.” Maitland, Why the History of English Law Is Not Written, 7. By comparison, the Ames Foundation, through the leadership and labors of Professor David Seipp, has committed itself “to creat[ing] a free, publicly-searchable database containing an index and paraphrase of all printed Year Book reports (cases argued and determined in English law courts between 1268 and 1535).” The database now contains more than 22,000 individual reports. See An Index and Paraphrase of Printed Year Book Reports, 1268–1535, compiled by David Seipp, <http://www.bu.edu/law/faculty/scholarship/yearbooks/> (20 December 2006).
8. As Maitland correctly observed, Cambridge and Oxford traditionally taught Roman law (and, before the Reformation, canon law) to their undergraduate students. Why the History of English Law Is Not Written, 10. Now, both universities not only feature an undergraduate legal curriculum dominated by English law, but also offer courses in English legal history specifically. See University of Cambridge, Faculty of Law, Courses, Legal History, <http://www.law.cam.ac.uk/courses/view_subject.php?course=1&tripos;=1&subjects;=1&subject;=32&resource;=14> (20 December 2006) and Oxford University, Student Handbook (Undergraduate Students) 2005–06, <http://denning.law.ox.ac.uk/undergraduate/index.shtml> (20 December 2006). For their part, several American law schools (including Georgetown, The George Washington University, the University of Illinois, and Yale) offer courses in English legal history. English legal history will also feature prominently in a forthcoming case book designed for North American law students. See John H. Langbein, Renée Lettow Lerner, and Bruce P. Smith, History of the Common Law: The Development of Anglo-American Legal Institutions (Aspen Publishing Co., forthcoming).
9. And, it should be noted, exceptionally committed ones. On July 7, 2005, most of the legal historians who attended the morning sessions at the Seventeenth British Legal History Conference, held at University College London, dutifully sat through the presentations despite news of terrorist bombings at nearby King’s Cross station and Tavistock Square earlier that day. See “London Rocked by Terror Attacks,” BBC News, 7 July 2005, <http://news.bbc.co.uk/1/hi/uk/4659093.stm> (20 December 2006).
10. Academic presses have devoted considerable attention to the history of English criminal justice administration from the seventeenth through the nineteenth century. For example, two of the six current titles in the Oxford Studies in Modern Legal History series address the subject. See John H. Langbein, The Origins of Adversary Criminal Trial (Oxford: Oxford University Press, 2003) and David J. A. Cairns, Advocacy and the Making of the Adversarial Criminal Trial, 1800–1865 (Oxford: Clarendon Press, 1998). For its part, the Ohio State University Press’s series on the History of Crime and Criminal Justice includes a pair of important studies of policing in London in the eighteenth and nineteenth centuries. See Andrew T. Harris, Policing the City: Crime and Legal Authority in London, 1780–1840 (Columbus: Ohio State University Press, 2004) and Wilbur R. Miller, Cops and Bobbies: Police Authority in New York and London, 1830–1870, 2d ed. (Columbus: Ohio State University Press, 1999). As surveyed in Part III below, major articles on the history of English criminal justice in the period from 1650 to 1850 have appeared in leading journals such as Law and History Review, Past & Present, and the Yale Law Journal.
11. Although the precise chronological boundaries of the “long eighteenth century” remain unfixed, this essay employs an expansive definition that encompasses the period from roughly 1650 to 1850. For coterminous usage, see, for example, the journal 1650–1850: Ideas, bbbbsthetics, and Inquiries in the Early Modern Era, http://www.amspressinc.com/16501850.html. For an example of a more restrictive approach, see Frank O’Gorman, The Long Eighteenth Century: British Political and Social History, 1688–1832 (Oxford: Oxford University Press, 1998). The essay occasionally strays from its chronological borders, as several of the publications surveyed address developments before 1650 or after 1850.
12. See Joanna Innes and John Styles, “The Crime Wave: Recent Writing on Crime and Criminal Justice in Eighteenth-Century England,” Journal of British Studies 25 (1986): 380–435 (reprinted in Rethinking Social History: English Society 1570–1920 and Its Interpretation, ed. Adrian Wilson [Manchester: Manchester University Press, 1993], 201–65); Clive Emsley, “Filling In, Adding Up, Moving On: Criminal Justice History in Contemporary Britain,” Crime, Histoire et Sociétés/Crime, History and Societies 9.1 (2005): 117–38; and Peter King, “Locating Histories of Crime: A Bibliographical Study,” British Journal of Criminology 39 (1999): 161–74.
13. See, for example, Clive Emsley, Crime and Society in England, 1750–1900, 3d ed. (Harlow: Longman, 2004); Barry S. Godfrey and Paul Lawrence, Crime and Justice, 1750–1950 (Cullompton, U.K.: Willan, 2005); J. A. Sharpe, Crime in Early Modern England, 1550–1750, 2d ed. (Harlow: Longman, 1999); Philip Rawlings, Crime and Power: A History of Criminal Justice, 1688–1998 (Harlow: Longman, 1999); David Bentley, English Criminal Justice in the Nineteenth Century (London: Hambledon, 1998); David Taylor, Crime, Policing and Punishment in England, 1750–1914 (Basingstoke: Macmillan, 1998); and John Briggs et al., Crime and Punishment in England: An Introductory History (London: UCL Press, 1996).
14. See, for example, T. P. Gallanis, “Review Notice: The Old Bailey Proceedings Online,” Journal of Legal History 26 (2005): 91–93 and “Legal History with 21st-Century Tools: The English Reports on CD-ROM and Bracton on the Web,” Journal of Legal History 20 (1999): 109–14.
15. J. M. Beattie, Crime and the Courts in England 1660–1800 (Princeton: Princeton University Press, 1986); Innes and Styles, “Crime Wave.”
16. See below Part II(A).
17. See below Part II(B).
18. See below Part II(C).
19. Yale Kamisar et al., Modern Criminal Procedure: Cases, Comments and Questions, 9th ed. (St. Paul, Minn.: West, 1999), 1.
20. On the importance of considering criminal procedure alongside the substantive criminal law, see William J. Stuntz, “The Uneasy Relationship between Criminal Procedure and Criminal Justice,” Yale Law Journal 107 (1997): 1–76 (noting the tendency of American law to treat these subjects separately and identifying the methodological weaknesses of this approach) and Mike McConville and Geoffrey Wilson, Preface to The Handbook of The Criminal Justice Process, ed. Mike McConville and Geoffrey Wilson (Oxford: Oxford University Press, 2002): v (“[W]e recognize that even to draw a line between process and the substantive law is somewhat arbitrary if one is trying to understand the ways in which the process is intended to work and works in practice”).
21. Innes and Styles, “Crime Wave,” 401–2.
22. Both Wiener and McKenzie, for example, have recently emphasized the relationship between criminal justice administration and contemporary attitudes to masculinity. See Martin J. Wiener, Men of Blood: Violence, Manliness and Criminal Justice in Victorian England (Cambridge: Cambridge University Press, 2004) and Andrea McKenzie, “‘This Death Some Strong and Stout Hearted Man Doth Choose’: The Practice of Peine Forte et Dure in Seventeenth- and Eighteenth-Century England,” Law and History Review 23 (2005): 279–313. Among his varied writings, King has identified connections between criminal procedure and both gender and youth. See, for example, Peter King, “Gender, Crime and Justice in Late Eighteenth- and Early Nineteenth-Century England,” in Gender and Crime in Modern Europe, ed. Margaret L. Arnot and Cornelie Usborne (London: UCL Press, 1999), 44–74 and “The Rise of Juvenile Delinquency in England,” Past & Present 160 (1998): 116–66.
23. Representative treatments include Elizabeth Foyster, Marital Violence: An English Family History, 1660–1857 (Cambridge: Cambridge University Press, 2005); Katherine Watson, Poisoned Lives: English Poisoners and Their Victims (London: Hambledon & London, 2004); Louise A. Jackson, Child Sexual Abuse in Victorian England (London: Routledge, 2000); Tony Henderson, Disorderly Women in Eighteenth-Century London: Prostitution and Control in the Metropolis, 1730–1830 (London: Longman, 1999); and George Robb, White-Collar Crime in Modern England: Financial Fraud and Business Morality, 1845–1929 (Cambridge: Cambridge University Press, 1992).
24. See, for example, James Sharpe, Dick Turpin: The Myth of the English Highwayman (London: Profile Books, 2004); Jessica Warner, John the Painter: Terrorist of the American Revolution (New York: Thunder’s Mouth Press, 2004); and Jan Bondeson, The London Monster: A Sanguinary Tale (Philadelphia: University of Pennsylvania Press, 2001).
25. For a pair of recent micro-historical reconstructions, see John Brewer, A Sentimental Murder: Love and Madness in the Eighteenth Century (New York: Farrar, Straus and Giroux, 2004) and Paul Kléber Monod, The Murder of Mr. Grebell: Madness and Civility in an English Town (New Haven: Yale University Press, 2003).
26. See, for example, Douglas Hay, “War, Dearth and Theft in the Eighteenth Century: The Record of the English Courts,” Past & Present 95 (1982): 117–60 and Rob Sindall, “Middle-Class Crime in Nineteenth-Century England,” Criminal Justice History 4 (1983): 23–40.
27. See, for example, Wiener, Men of Blood; Lucia Zedner, Women, Crime and Custody in Victorian England (Oxford: Clarendon Press, 1991); Women, Crime and the Courts in Early Modern England, ed. Jenny Kermode and Garthine Walker (London: UCL Press, 1994); King, “Gender, Crime and Justice”; and Lynn MacKay, “Why They Stole: Women in the Old Bailey, 1779–1789,” Journal of Social History 32 (1999): 623–39.
28. King, for example, has used evidence of dialect in contemporary accounts of trials at London’s Old Bailey to assess the treatment of Irish defendants. For a brief description, see Steve Poole, Conference Report, “Tales from the Old Bailey: Writing a New History from Below,” History Workshop Journal 59 (2005): 282–84.
29. On youthful offenders, see, for example, King, “Rise of Juvenile Delinquency”; Peter King and Joan Noel, “The Origins of ‘The Problem of Juvenile Delinquency’: The Growth of Juvenile Prosecutions in London in the Late Eighteenth and Early Nineteenth Centuries,” Criminal Justice History 14 (1993): 17–41; and Heather Shore, Artful Dodgers: Youth and Crime in Early 19th-Century London (Woodbridge, UK: Boydell Press, 1999). On the relationship between criminality and aging, see Peter King, “Female Offenders, Work and Lifecycle Change in Late Eighteenth-Century London,” Continuity and Change 11 (1996): 61–90.
30. On Wales, see David J. V. Jones, Crime in Nineteenth-Century Wales (Cardiff: University of Wales Press, 1992); on Scotland, see Lindsay Farmer, Criminal Law, Tradition and Legal Order: Crime and the Genius of Scots Law, 1747 to the Present (Cambridge: Cambridge University Press, 1997); and on Ireland, see Criminal Justice History: Themes and Controversies from Pre-Independence Ireland, ed. Ian O’Donnell and Finbarr McAuley (Dublin: Four Courts Press, 2003).
31. See, for example, the materials relating to the Court of Great Sessions of Wales from 1730 to 1830 compiled by the National Library of Wales, <http://www.llgc.org.uk/sesiwn_fawr/index_s.htm>.
32. For a particularly impressive achievement in this regard, see Masters, Servants, and Magistrates in Britain and the Empire, 1562–1955, ed. Douglas Hay and Paul Craven (Chapel Hill: University of North Carolina Press, 2004). For a discussion of the ambitious methodology of this project, see Bruce P. Smith, Review Essay, “Imperial Borrowing: The Law of Master and Servant,” Comparative Labor Law & Policy Journal 25 (2004): 447–62. Although developments in criminal justice administration in London frequently spurred legal change elsewhere, important innovations occasionally occurred outside the metropolis and, sometimes, outside of England altogether. For a discussion of initiatives at the local level, see Peter King, Crime and Law in England, 1750–1840: Remaking Justice from the Margins (Cambridge: Cambridge University Press, 2006). Suggestively, the first British experiment with a professionalized magistracy occurred in Ireland, not England. See Stanley H. Palmer, Police and Protest in England and Ireland, 1780–1850 (Cambridge: Cambridge University Press, 1988) and David Philips, “‘A New Engine of Power and Authority’: The Institutionalization of Law-Enforcement in England 1780–1830,” in Crime and the Law: The Social History of Crime in Western Europe since 1500, ed. V. A. C. Gatrell, Bruce Lenman, and Geoffrey Parker (London: Europa, 1980), 155–89.
33. Such, at least, was the view of one anonymous reviewer of this essay, who urged that the study encompass the late nineteenth century as well.
34. Cynthia B. Herrup, The Common Peace: Participation and the Criminal Law in Seventeenth-Century England (Cambridge: Cambridge University Press, 1987).
35. Martin J. Wiener, Reconstructing the Criminal: Culture, Law, and Policy in England, 1830–1914 (Cambridge: Cambridge University Press, 1990).
36. Doreen J. McBarnet, Conviction: Law, the State and the Construction of Justice (London: Macmillan, 1981), 8.
37. Ibid.
38. For a sophisticated exploration of several of these notions, see King, Crime and Law in England. King’s important book appeared after this essay was substantially complete and, accordingly, has not been reviewed extensively here. King graciously shared with me portions of the unpublished manuscript, including his future Chapter 1, which he presented at a workshop at the University of Illinois College of Law in October 2005.
39. See, for example, Edward Peters, Inquisition (Berkeley: University of California Press, 1989).
40. See, for example, Colin M. MacLachlan, Criminal Justice in Eighteenth Century Mexico: A Study of the Tribunal of the Acordada (Berkeley: University of California Press, 1975).
41. See, for example, Benjamin Carter Hett, Death in the Tiergarten: Murder and Criminal Justice in the Kaiser’s Berlin (Cambridge, Mass.: Harvard University Press, 2004).
42. See, for example, Stephen Robertson, Crimes against Children: Sexual Violence and Legal Culture in New York City, 1880–1960 (Chapel Hill: University of North Carolina Press, 2005).
43. The enduring relevance of these developments to contemporary practice forms a powerful theme in the works of both Sir Leon Radzinowicz (see Part II[A] below) and John Langbein (see Part II[C] below).
44. As Douglas Hay has argued, “the criminal law, more than any other social institution, made it possible to govern eighteenth-century England without a police force and without a large army.” Hay, “Property, Authority and the Criminal Law,” in Albion’s Fatal Tree: Crime and Society in Eighteenth-Century England, ed. Douglas Hay et al. (London: Allen Lane, 1975), 56. On Hay’s scholarship, see Part II(B) below.
45. In recently holding that U.S. federal courts had jurisdiction to hear habeas corpus petitions filed by persons held at Guantánamo Bay, the Supreme Court cited several seventeenth- and eighteenth-century English precedents, including cases that extended the writ to the Cinque-Ports town of Dover (Bourn’s Case, 79 Eng. Rep. 465 [K.B. 1619]), to the County Palatine of Durham (Jobson’s Case, 82 Eng. Rep. 325 [K.B. 1626]), and to a ship docked in English waters and bound for Jamaica (Somerset v. Stewart, 20 How. St. Tr. 1 [K.B. 1772]). See Rasul v. Bush, 542 U.S. 466 (2004). In Crawford v. Washington, 541 U.S. 36 (2004), the Court looked to English historical practice circa 1791 in determining that the admission of a statement made to police by the suspect’s wife (outside the suspect’s presence) violated the Sixth Amendment’s Confrontation Clause. In Atwater v. Lago Vista, 532 U.S. 318 (2001), the Court cited to a string of eighteenth-century English statutes in determining that a police officer’s warrantless arrest of a suspect for a misdemeanor seatbelt violation did not violate the Fourth Amendment. For a critical assessment of the Court’s use of history in the Atwater case, see Thomas Y. Davies, “The Fictional Character of Law-and-Order Originalism: A Case Study of the Distortions and Evasions of Framing-Era Arrest Doctrine in Atwater v. Lago Vista,” Wake Forest Law Review 37 (2002): 239–437.
46. Maitland admitted that “much ha[d] been done for criminal law and real property law,” as well as certain areas of constitutional law, narrowly construed. Why the History of English Law Is Not Written, 6–7.
47. James Fitzjames Stephen, A History of the Criminal Law of England, 3 vols. (London: Macmillan, 1883). On Stephen’s scholarly achievement, see K. J. M. Smith, James Fitzjames Stephen: Portrait of a Victorian Rationalist (Cambridge: Cambridge University Press, 1988).
48. See F. W. Maitland, Justice and Police (London: Macmillan, 1885). As S. F. C. Milsom recounts, the “rather slight” book appeared as “a volume in a citizenship series when the chosen author fell out.” Milsom, “Maitland,” ODNB.
49. K. J. M. Smith, “Stephen, Sir James Fitzjames (1829–94),” ODNB, <http://www.oxforddnb.com/view/article/26375> (20 December 2006).
50. Maitland’s greatest achievement, his two-volume History of English Law before the Time of Edward I (Cambridge: University Press, 1895), co-written with Sir Frederick Pollock, concluded in the late thirteenth century. The Selden Society, which Maitland founded in 1887 and which he served in an editorial capacity, focused the bulk of its editorial energies on the medieval and early modern periods. None of the fifty-nine volumes published by the society between 1887 and 1940 addressed the period after 1650.
51. See W. S. Holdsworth, A History of English Law, 13 vols. (London: Methuen & Co., 1903–38). Moreover, Holdsworth showed little interest in the type of sustained archival labors necessary to reconstruct that history fully. His working habits apparently involved postprandial writing while “fortified with port.” See H. G. Hanbury (revised by David Ibbetson), “Holdsworth, Sir William Searle (1871–1944),” ODNB, <http://www.oxforddnb.com/view/article/33933?docPos=4> (20 December 2006).
52. For an incisive biographical treatment by one of Radzinowicz’s co-authors, see Roger Hood, “Radzinowicz, Sir Leon (1906–99),” ODNB, <http://www.oxforddnb.com/view/article/73693> (20 December 2006). For autobiographical reminiscences, see Sir Leon Radzinowicz, Adventures in Criminology (London: Routledge, 1999).
53. The committee consisted of Radzinowicz, Turner, Percy Winfield, and R. M. Jackson. See “Research in Criminal Science,” Cambridge Law Journal 7 (1941): 399. For an early description of “criminal science,” see L. Radzinowicz and J. W. C. Turner, “The Language of Criminal Science,” Cambridge Law Journal 7 (1940): 224–37.
54. Radzinowicz and Turner, “Language of Criminal Science,” 229.
55. Winfield observed as follows: “I have always held … that law reform is apt to be ill-considered unless the history of the law is taken into account. I should not say that reforms can never be sound unless the history of the law has been studied, but there is no doubt that, without such study, attempted amendments of the law may be one-sided or even positively mischievous.” P. H. Winfield, “Note to L. Radzinowicz, ‘Some Sources of Modern English Criminal Legislation: A Preliminary Report on the Blue Books and Parliamentary Debates for the Period 1760–1940,'” Cambridge Law Journal 8 (1943). Winfield’s “Note” appears on page 180, Radzinowicz’s article on pages 181–94.
56. The parliamentary papers were styled “Blue Books” because of their distinctive blue covers. See H. Hale Bellot, “Parliamentary Printing, 1660–1837,” Bulletin of the Institute of Historical Research 11 (1933): 85 (cited in Radzinowicz, “Some Sources,” 182 n.4).
57. For a description of the project, see Radzinowicz, “Some Sources,” 194.
58. Ibid., 187.
59. Winfield, “Note,” 180. Before Radzinowicz, as Winfield observed, “government publications … ha[d] been almost totally ignored in … [existing] histories of Criminal Law.” Ibid. Radzinowicz had himself identified “only three occasions” in which the Blue Books had been mentioned in Stephen’s three-volume History. Radzinowicz, “Some Sources,” 190.
60. Leon Radzinowicz, A History of English Criminal Law and Its Administration from 1750 [hereinafter Radzinowicz, History], vol. 1, The Movement for Reform, 1750–1833 (New York: Macmillan, 1948).
61. Radzinowicz, History, vol. 2, The Clash between Private Initiative and Public Interest in the Enforcement of the Law (New York: Macmillan, 1957); History, vol. 3, Cross-Currents in the Movement for the Reform of the Police (New York: Macmillan, 1957); and History, vol. 4, Grappling for Control (London: Stevens & Sons, 1968).
62. Sir Leon Radzinowicz and Roger Hood, History, vol. 5, The Emergence of Penal Policy (London: Stevens & Sons, 1986).
63. As Innes and Styles have argued, Radzinowicz adopted a “reform perspective,” in the sense that he viewed eighteenth-century government as “grossly corrupt and inefficient” and tended to praise the achievements of late eighteenth- and early nineteenth-century criminal justice administrators. Innes and Styles, “Crime Wave,” 383.
64. For reflections on Radzinowicz’s legacy, see Ideology, Crime and Criminal Justice: A Symposium in Honour of Sir Leon Radzinowicz, ed. Anthony Bottoms and Michael Tonry (Cullompton, U.K.: Willan, 2002) and Crime, Criminology and Public Policy: Essays in Honour of Sir Leon Radzinowicz, ed. Roger Hood (London: Heinemann, 1974).
65. Innes and Styles, “Crime Wave,” 381.
66. Hood, “Radzinowicz,” ODNB. Others simply ignored it. The index to Peter Linebaugh’s The London Hanged: Crime and Civil Society in the Eighteenth Century, 1st ed. (London: Penguin Press, 1991) contains listings for Friedrich Engels, Michel Foucault, Christopher Hill, Karl Marx, and even William Morris, but no mention of Radzinowicz.
67. In 1943, for example, Radzinowicz wrote that “[i]n the field of criminal justice[,] England occupies a most prominent place and may be rightly proud of the basic principles and practical achievements of its penal system.” Radzinowicz, “Some Sources,” 189.
68. Ibid., 183. On Namier (himself a Pole) and Namierite historians, see Linda Colley, Lewis Namier (New York: St. Martin’s Press, 1989) and John Cannon, “Namier, Sir Lewis Bernstein (1888–1960),” ODNB, <http://www.oxforddnb.com/view/article/35183> (20 December 2006).
69. Radzinowicz and Turner, “Criminal Science,” 234 n.32.
70. See Daniel Maier-Katkin, “On Sir Leon Radzinowicz Reading Michel Foucault: Authority, Morality and the History of Criminal Law at the Juncture of the Modern and the Postmodern,” Punishment and Society 5 (2003): 155–77.
71. Innes and Styles, “Crime Wave,” 382 (“dispossessed and inarticulate”); E. P. Thompson, Whigs and Hunters: The Origin of the Black Act (London: Allen Lane, 1975), 16 (“from ‘below'”). For reflections on Thompson’s considerable influence, see Peter King, “Edward Thompson’s Contribution to Eighteenth-Century Studies: The Patrician-Plebeian Model Re-Examined,” Social History 21 (1996): 215–28 and David Eastwood, “History, Politics and Reputation: E. P. Thompson Reconsidered,” History 85 (2000): 634–54.
72. In 1975, two of the contributors to Albion’s Fatal Tree, Douglas Hay and Peter Linebaugh, also completed doctoral dissertations under Thompson’s direction. See Douglas Hay, “Crime, Authority and the Criminal Law: Staffordshire, 1750–1800” (Ph.D. diss., University of Warwick, 1975) and Peter Linebaugh, “Tyburn: A Study of Crime and the Labouring Poor in London during the First Half of the Eighteenth Century” (Ph.D. diss., University of Warwick, 1975). Thompson republished Whigs and Hunters with a new postscript in 1977. See Thompson, Whigs and Hunters: The Origin of the Black Act (Harmondsworth: Penguin, 1977).
73. Thompson, Whigs and Hunters (1977 ed.), 21 (emphasis added).
74. Ibid., 250.
75. Peter Linebaugh, “The Tyburn Riot against the Surgeons,” in Albion’s Fatal Tree, 65–118.
76. Thompson, “The Crime of Anonymity,” in Albion’s Fatal Tree, 255–305.
77. Hay, “Property, Authority and the Criminal Law,” in Albion’s Fatal Tree, 17–63.
78. Ibid., 33, 56. For a favorable assessment of Hay’s treatment of the “rule of law,” see Morton J. Horwitz, Book Review, “The Rule of Law: An Unqualified Human Good?” Yale Law Journal 86 (1977): 561–66 (reviewing Albion’s Fatal Tree and Whigs and Hunters).
79. Eastwood, “History, Politics and Reputation,” 635.
80. My usage owes a debt to Robert W. Gordon, “Critical Legal Histories,” Stanford Law Review 36 (1984): 57–125.
81. For a pair of representative social-historical studies, see J. G. Rule, “Social Crime in the Rural South in the Eighteenth and Early Nineteenth Centuries,” Southern History 1 (1979): 135–53 and John Styles, “‘Our Traitorous Moneymakers’: The Yorkshire Coiners and the Law, 1760–83,” in An Ungovernable People: The English and Their Law in the Seventeenth and Eighteenth Centuries, ed. John Brewer and John Styles (London: Hutchinson’s, 1980), 172–249.
82. John H. Langbein, “The Criminal Trial before the Lawyers,” University of Chicago Law Review 45 (1978): 263–316 and “Shaping the Eighteenth-Century Criminal Trial: A View from the Ryder Sources,” University of Chicago Law Review 50 (1983): 1–136.
83. See, for example, John Henry Wigmore, A Treatise on the Anglo-American System of Evidence in Trials at Common Law, 3d ed. (Boston: Little Brown & Co., 1940) and Leonard W. Levy, Origins of the Fifth Amendment, 2d ed. (New York: MacMillan, 1986).
84. For a description of the Sessions Papers, see Langbein, “Shaping,” 3–30. For details relating to the publication of the Sessions Papers, see Simon Devereaux, “The City and the Sessions Paper: ‘Public Justice’ in London, 1770–1800,” Journal of British Studies 35 (1996): 466–503 and “The Fall of the Sessions Paper: The Criminal Trial and the Popular Press in Late Eighteenth-Century London,” Criminal Justice History 18 (2003): 57–88.
85. For reflections on the value of judicial notes to legal historians, see James Oldham, The Mansfield Manuscripts and the Growth of English Law in the Eighteenth Century, vol. 1 (Chapel Hill: University of North Carolina Press, 1992), 167–68 (noting that trial notes can be used to “corroborate the printed reports, clarify the reports through unreported factual detail, and provide information about new trials granted as a result of reported proceedings”).
86. For related studies, see John H. Langbein, “The Historical Origins of the Privilege against Self-Incrimination at Common Law,” Michigan Law Review 92 (1994): 1047–85 and “The Privilege and Common Law Criminal Procedure: The Sixteenth to the Eighteenth Centuries,” in The Privilege against Self-Incrimination: Its Origins and Development, ed. R. H. Helmholz et al. (Chicago: University of Chicago Press, 1997), 82–108, as well as the studies cited in Part III below.
87. In this regard, Langbein substantially revised the existing portraits of English trial procedure offered by both Wigmore and Levy.
88. Beattie, Crime and the Courts.
89. See J. M. Beattie, Policing and Punishment in London, 1660–1750: Urban Crime and the Limits of Terror (Oxford: Oxford University Press, 2001) and Simon Devereaux, “Imposing the Royal Pardon: Execution, Transportation, and Convict Resistance in London, 1789,” Law and History Review 25 (2007): 101–38.
90. See below Part III(E).
91. See J. M. Beattie, “The Pattern of Crime in England, 1660–1800,” Past & Present 62 (1974): 47–95 and “The Criminality of Women in Eighteenth-Century England,” Journal of Social History 8 (1975): 80–116. Beattie continued to display nuanced attention to such issues in his later writings. See, for example, Beattie, “Patterns of Prosecution and the Character of Property Crime,” in Crime and the Courts, 199–263 and “Crime and Inequality in Eighteenth-Century London,” in Crime and Inequality, ed. John Hagan and Ruth D. Peterson (Stanford: Stanford University Press, 1995), 116–39.
92. Langbein, Adversary Criminal Trial, 1–2. (“By the wealth effect, I refer to the enormous advantage that adversary procedure bestows upon persons who can afford to hire skilled trial counsel, and to pay for party-conducted factual investigation. Because most persons accused of serious crimes are indigent or near-indigent, the wealth effect is a profound structural flaw in adversary criminal procedure.”)
93. “We reach, then, not a simple conclusion (law = class power) but a complex and contradictory one. On the one hand, … the law did mediate existent class relations to the advantage of the rulers…. On the other hand, the law mediated these class relations through legal forms, which imposed, again and again, inhibitions upon the actions of the rulers…. [T]here is a very large difference, which twentieth-century experience ought to have made clear even to the most exalted thinker, between arbitrary extra-legal power and the rule of law.” Thompson, Whigs and Hunters, 264–65.
94. Since 1981, Hay has been cross-appointed at York University’s Osgoode Hall Law School and Department of History. On the importance of statutes, see Douglas Hay and Paul Craven, “Introduction” to Masters, Servants, and Magistrates, 10.
95. John H. Langbein, “Albion’s Fatal Flaws,” Past & Present 98 (1983): 96–120.
96. King’s paper would later be published as “Decision-Makers and Decision-Making in the English Criminal Law, 1750–1800,” Historical Journal 27 (1984): 25–58. As King would himself observe, “Hay’s analysis … is brilliant and illuminating, but his concentration on the small ruling elite precluded any investigation of several important facets of the judicial process,” including the degree to which “a wide variety of participants could influence the outcome of [a] case.” Ibid., 26.
97. Langbein, “Albion’s Fatal Flaws,” 97.
98. Ibid., 106–7.
99. Ibid., 109–13.
100. Ibid., 115–16.
101. Ibid., 114–15.
102. Ibid., 119 (citing Richard F. Sparks, “A Critique of Marxist Criminology,” Crime and Justice: An Annual Review of Research 2 [1980], 159).
103. Douglas Hay, “The Class Composition of the Palladium of Liberty: Trial Jurors in the Eighteenth Century” and P. J. R. King, “‘Illiterate Plebeians, Easily Misled’: Jury Composition, Experience, and Behavior in Essex, 1735–1810,” in Twelve Good Men and True: The Criminal Trial Jury in England, 1200–1800, ed. J. S. Cockburn and Thomas A. Green (Princeton: Princeton University Press, 1988), 329–48 and 254–304.
104. Writing of English master-servant law, Hay later observed that “[e]mployment law had been penal for centuries, but … became increasingly criminal in character, a slow development that accelerated in the nineteenth century.” Hay, “England, 1562–1875: The Law and Its Uses,” in Masters, Servants, and Magistrates, 106.
105. Langbein, Adversary Criminal Trial, 256–57, 314–18.
106. See Peter Linebaugh, “(Marxist) Social History and (Conservative) Legal History: A Reply to Professor Langbein,” New York University Law Review 60 (1985): 212–43. Linebaugh laced his response with quotations from William Blake, a potted history of sanitation, and various epithets, including the claims that Langbein was “ahistorical” and lacked “historical sensitivity.”
107. In 1991, for example, Langbein roundly criticized Linebaugh for allegedly romanticizing the deeds of those condemned to hang. See John Langbein, “Culprits and Victims,” Times Literary Supplement (Oct. 11, 1991).
108. Innes and Styles, “Crime Wave,” 424. For earlier statements of this position, see Langbein, “Albion’s Fatal Flaws,” 99 (“Prosecutions for felony in the eighteenth century were for offences that had been felony for centuries before. The law that the courts had occasion to enforce in the eighteenth century was not for the most part the law that the contemporary legislature was enacting”); Beattie, Crime and the Courts, 146 (noting that robbery and burglary “had been among the first [offenses] removed from clergy in the sixteenth century, and they continued in the eighteenth to account for the largest number of convicted property offenders executed, indeed for the largest number of all offenders executed”).
109. Innes and Styles, “Crime Wave,” 424. As importantly, many of those condemned to death in the eighteenth century had been convicted of felonies that had long been considered capital at common law, such as murder.
110. Ibid., 425.
111. Innes and Styles summarize their position as follows: “One of the most striking shortcomings of the picture … commonly offered [by the Warwick School] is the way it wholly ignores the existence of the large numbers of legislative proposals that failed to reach the statute book. Excluding government-backed revenue or military measures (which were almost always enacted), over a third of bills failed in the eighteenth century. If, as the conventional accounts suggest, legislation was rarely the subject of debate, [and] if Parliament merely concerned itself with rubber-stamping private members’ proposals, it is difficult to understand why so many bills (including many concerned with crime) should have failed. The high failure rate is more easily explained if it is acknowledged that legislation was often a matter of intense disagreement and debate in eighteenth-century parliaments.” Ibid., 427 (emphasis added).
112. On the importance of studying these two bodies of statutory law together, see Bruce P. Smith, “The Presumption of Guilt and the English Law of Theft, 1750–1850,” Law and History Review 23 (2005): 133–71 and “Did the Presumption of Innocence Exist in Summary Proceedings?” Law and History Review 23 (2005): 191–99. See also Innes and Styles, “Crime Wave,” 429 (noting that “non-capital criminal legislation [was] more important numerically than is commonly allowed”).
113. Thus, the Middlesex Justices Act (1792), which created a set of stipendiary magistrates, police officers, and clerks in London associated with various “police offices,” scrupulously avoided including the historic City of London. In the mid-1780s, opposition by City interests had contributed to the defeat of a similar measure that had sought to include the City. See Philips, “New Engine.”
114. On the attitudes of judges to statute law, see David Lieberman, The Province of Legislation Determined: Legal Theory in Eighteenth-Century Britain (Cambridge: Cambridge University Press, 1989) and Michael Lobban, The Common Law and English Jurisprudence, 1760–1850 (Oxford: Clarendon Press, 1991).
115. For details of parliamentary lawmaking in this area, see Randall McGowen, “Making the ‘Bloody Code’? Forgery Legislation in Eighteenth-Century England,” in Law, Crime and English Society, 1660–1830, ed. Norma Landau (Cambridge: Cambridge University Press, 2002), 117–38; John M. Beattie, “London Crime and the Making of the ‘Bloody Code,’ 1689–1718,” in Stilling the Grumbling Hive: The Response to Social and Economic Problems in England, 1689–1750, ed. Lee Davison et al. (New York: St. Martin’s, 1992), 39–76; and Simon Devereaux, “The Making of the Penitentiary Act 1775–1779,” Historical Journal 42 (1999): 405–33.
116. On efforts to secure the Lighting Act of 1736, see Beattie, Policing and Punishment, 221–22; on efforts the following year to secure passage of legislation improving arrangements concerning the night watch, see ibid., 190–97.
117. See Randall McGowen, “The Bank of England and the Policing of Forgery, 1797–1821,” Past & Present 186 (2005): 81–116.
118. See Smith, “Presumption of Guilt.”
119. “English criminal law was primitive in matters of offence definition, especially the general part, that set of notions about criminal responsibility that cut across all criminal offences (for example, degrees of culpability, the law of attempts, aiding and abetting, capacity, and most of the affirmative defences.” Langbein, “Albion’s Fatal Flaws,” 117–18.
120. On efforts to rationalize the penal code in the middle decades of the nineteenth century, see Lindsay Farmer, “Reconstructing the English Codification Debate: The Criminal Law Commissioners, 1833–45,” Law and History Review 18 (2000): 397–425.
121. For studies stressing the importance of pre-1829 reform, see, for example, Harris, Policing the City; Beattie, Policing and Punishment; Elaine A. Reynolds, Before the Bobbies: The Night Watch and Police Reform in Metropolitan London, 1720–1830 (Stanford: Stanford University Press, 1998); Ruth Paley, “‘An Imperfect, Inadequate and Wretched System’? Policing London Before Peel,” Criminal Justice History 10 (1989): 95–130; and John Styles, “The Emergence of the Police: Explaining Police Reform in Eighteenth- and Nineteenth-Century England,” British Journal of Criminology 27 (1987): 15–22.
122. See, for example, David Philips and Robert D. Storch, Policing Provincial England, 1829–1856: The Politics of Reform (London: Leicester University Press, 1999); David Taylor, The New Police in Nineteenth-Century England: Crime, Conflict and Control (Manchester: Manchester University Press, 1997); and Michael Weaver, “The New Science of Policing: Crime and the Birmingham Police Force, 1839–1842,” Albion 26 (1994): 289–308. For earlier studies, see Carolyn Steedman, Policing the Victorian Community: The Formation of English Provincial Police Forces, 1856–80 (London: Routledge, 1984) and David Philips, Crime and Authority in Victorian England: The Black Country, 1835–1860 (London: Rowman & Littlefield, 1977).
123. For an initial installment of this pathbreaking research, see J. M. Beattie, “Sir John Fielding and Public Justice: The Bow Street Magistrates’ Court, 1754–1780,” Law and History Review 25 (2007): 61–100.
124. Ibid. at 81. For discussion of police interrogation in nineteenth-century London, see Bruce P. Smith, “Miranda‘s Paradoxical Prehistory” (2005) (unpublished paper).
125. See, for example, Robert C. Ellickson, “Controlling Chronic Misconduct in City Spaces: Of Panhandlers, Skid Rows, and Public-Space Zoning,” Yale Law Journal 105 (1996): 1165–1248 (addressing measures by New Haven police officers to deal with “vagrants” even in the absence of an anti-vagrancy ordinance).
126. Here, Clive Emsley’s various studies of the modes and personnel of English policing are highly suggestive. See, for example, Clive Emsley, The English Police: A Political and Social History, 2d ed. (London: Longman, 1996).
127. On the concept of “police,” see, for example, Markus Dirk Dubber, The Police Power (New York: Columbia University Press, 2005) and Francis M. Dodsworth, “‘Civic’ Police and the Condition of Liberty: The Rationality of Governance in Eighteenth-Century England,” Social History 29 (2004): 199–216. For discussion of popular opposition to French-style policing, see Philips, “New Engine”; “Three ‘Moral Entrepreneurs’ and the Creation of a ‘Criminal Class’ in England, c. 1790s-1840s,” Crime, Histoire et Sociétés/Crime, History and Societies 7.1 (2003): 79–107; and “A ‘Weak’ State? The English State, the Magistracy and the Reform of Policing in the 1830s,” English Historical Review 119 (2004): 873–91.
128. See Douglas Hay and Francis Snyder, “Using the Criminal Law: Policing, Private Prosecution and the State,” in Policing and Prosecution in Britain, 1750–1850, ed. Douglas Hay and Francis Snyder (Oxford: Clarendon Press, 1989), 3–52; Douglas Hay, “The Criminal Prosecution in England and Its Historians,” Modern Law Review 47 (1984): 1–29; and Hay, “Controlling the English Prosecutor,” Osgoode Hall Law Journal 21 (1983): 165–86.
129. On prosecution associations, see David Philips, “Good Men to Associate and Bad Men to Conspire: Associations for the Prosecution of Felons in England, 1760–1860,” and Peter King, “Prosecution Associations and Their Impact in Eighteenth-Century Essex,” in Policing and Prosecution, 113–70 and 171–207.
130. See, for example, Ruth Paley, “Thief-Takers in London in the Age of the McDaniel Gang, c. 1745–54,” in Policing and Prosecution, 301–41 and Tim Wales, “Thief-Takers and Their Clients in Later Stuart London,” in Londinopolis: Essays in the Cultural and Social History of Early Modern London, ed. Paul Griffiths and Mark S. R. Jenner (Manchester: Manchester University Press, 2000), 67–84.
131. Norma Landau, “Indictment for Fun and Profit: A Prosecutor’s Reward at Eighteenth-Century Quarter Sessions,” Law and History Review 17 (1999): 507–36.
132. See generally Langbein, Adversary Criminal Trial, 113–20.
133. See Bruce P. Smith, “The Emergence of Public Prosecution in London, 1790–1850,” Yale Journal of Law & the Humanities 18 (2006): 29–62 and “The Myth of Private Prosecution in England, 1750–1850,” in Modern Histories of Crime and Punishment, ed. Markus D. Dubber and Lindsay Farmer (Stanford: Stanford University Press, forthcoming 2007).
134. “The increasing role of the police as prosecutors from the middle of the nineteenth century has been largely ignored by historians and there has been no detailed study, even on a regional basis, of precisely how, when and why the police came to predominate as prosecutors.” Emsley, Crime and Society in England, 195. For preliminary treatments, see Smith, “Emergence of Public Prosecution”; Philips, Crime and Authority; and Jennifer S. Davis, “Prosecutions and Their Context: The Use of the Criminal Law in Later Nineteenth-Century London,” in Policing and Prosecution, 397–426.
135. John H. Langbein, Prosecuting Crime in the Renaissance: England, Germany, France (Cambridge, Mass.: Harvard University Press, 1974).
136. Beattie, Crime and the Courts, 267–88, 400–406.
137. See John H. Langbein, “The Prosecutorial Origins of Defence Counsel in the Eighteenth Century: The Appearance of Solicitors,” Cambridge Law Journal 58 (1999): 314–65 and Adversary Criminal Trial, 123–27. The papers of eighteenth-century solicitors, which have yet to be systematically examined by legal historians, may shed additional light on these subjects.
138. See Beattie, “Sir John Fielding and Public Justice,” 82–91 and Policing and Punishment, 77–113.
139. See Peter King, Crime, Justice, and Discretion in England, 1740–1820 (Oxford: Oxford University Press, 2000). See also Carolyn Conley, The Unwritten Law: Criminal Justice in Victorian Kent (Oxford: Oxford University Press, 1991) (examining the impact on criminal justice administration of contemporary concepts of status).
140. See John Styles, “Sir John Fielding and the Problem of Criminal Investigation in Eighteenth Century England,” Transactions of the Royal Historical Society, 5th ser., 33 (1983): 127–49 and David Cox, “‘A Certain Share of Low Cunning’: The Provincial Use and Activities of Bow Street ‘Runners,’ 1792–1839,” Eras 5 (2003), <http://www.arts.monash.edu.au/eras/edition_5/coxarticle.htm> (20 December 2006).
141. On the rise of magisterial cautions concerning the evidentiary impact of a suspect’s pretrial statements, see Smith, “Miranda‘s Paradoxical Prehistory.”
142. For a suggestive beginning, see, for example, Langbein, Adversary Criminal Trial, 127–31, where he notes that magistrates’ clerks occasionally acted as prosecuting solicitors. By the 1830s, legal commentators occasionally complained about the practice of clerks acting in this capacity. 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), 443.
143. Allyson N. May, The Bar and the Old Bailey, 1750–1850 (Chapel Hill: University of North Carolina Press, 2003).
144. Christopher Allen, The Law of Evidence in Victorian England (Cambridge: Cambridge University Press, 1997).
145. T. P. Gallanis, “The Mystery of Old Bailey Counsel,” Cambridge Law Journal 65 (2006): 159–73.
146. See Cairns, Adversarial Criminal Trial; J. M. Beattie, “Scales of Justice: Defence Counsel and the English Criminal Trial in the Eighteenth and Nineteenth Centuries,” Law and History Review 9 (1991): 221–67; Stephan Landsman, “The Rise of the Contentious Spirit: Adversary Procedure in Eighteenth-Century England,” Cornell Law Review 75 (1990): 498–609; David Lemmings, “Criminal Trial Procedure in Eighteenth-Century England: The Impact of Lawyers,” Journal of Legal History 26 (2005): 63–70; Allyson May, “Advocates and Truth-Seeking in the Old Bailey Courtroom,” Journal of Legal History 26 (2005): 71–77; Albert W. Alschuler, “Narrative and Normativity: Comments on The Origins of Adversary Criminal Trial,” Journal of Legal History 26 (2005): 79–84; and John H. Langbein, “Response,” Journal of Legal History 26 (2005): 85–89.
147. Norma Landau’s important study, The Justices of the Peace, 1679–1760 (Berkeley: University of California Press, 1984), discussed the legislative expansion of summary jurisdiction in the eighteenth century but spent little time examining the procedures actually used by magistrates in exercising that jurisdiction. For an insightful examination of the role of summary proceedings in combating workplace appropriation, see John Styles, “Embezzlement, Industry and the Law in England, 1500–1800,” in Manufacture in Town and Country before the Factory, ed. Maxine Berg, Pat Hudson, and Mark Sonenscher (Cambridge: Cambridge University Press, 1983), 173–210.
148. See, for example, King, Crime, Justice, and Discretion, 82–125; King, “The Summary Courts and Social Relations in Eighteenth-Century England,” Past & Present 183 (2004): 125–72; Smith, “Presumption of Guilt”; and Norma Landau, “Summary Conviction and the Development of the Penal Law,” Law and History Review 23 (2005): 173–89.
149. See Smith, “Presumption of Guilt.”
150. T. P. Gallanis, “The Rise of Modern Evidence Law,” Iowa Law Review 84 (1999): 499–560.
151. See John H. Langbein, “Understanding the Short History of Plea Bargaining,” Law & Society Review 13 (1979): 261–72; Malcolm Feeley and Charles Lester, “Legal Complexity and the Transformation of the Criminal Process,” in Subjektivierung des Justiziellen Beweisverfahrens, ed. André Gouron et al. (Frankfurt: Vittoria Klostermann, 1977), 337–75; Malcolm Feeley, “Legal Complexity and the Transformation of the Criminal Process: The Origins of Plea Bargaining,” Israel Law Review 31 (1997): 183–222; and Bruce P. Smith, “Plea Bargaining and the Eclipse of the Jury,” Annual Review of Law and Social Science 1 (2005): 131–49 (surveying literature).
152. Conor Hanly, “The Decline of Civil Jury Trial in Nineteenth-Century England,” Journal of Legal History 26 (2005): 253–78.
153. For discussion of the political status of the jury in the eighteenth century, see Thomas Andrew Green, Verdict According to Conscience: Perspectives on the English Criminal Trial Jury, 1200–1800 (Chicago: The University of Chicago Press, 1985).
154. V .A. C. Gatrell, The Hanging Tree: Execution and the English People, 1770–1868 (Oxford: Oxford University Press, 1994).
155. See Randall McGowen, “Managing the Gallows: The Bank of England and the Death Penalty, 1797–1821,” Law and History Review 25 (2007): 241–82; “The Problem of Punishment in Eighteenth-Century England,” in Penal Practice and Culture, 1500–1900: Punishing the English, ed. Simon Devereaux and Paul Griffiths (London: Palgrave Macmillan, 2004), 210–31; “History, Culture and the Death Penalty: The British Debates, 1840–1870,” Historical Reflections/Réflexions Historiques 29 (2003): 229–40; “From Pillory to Gallows: The Punishment of Forgery in the Age of the Financial Revolution,” Past & Present 165 (1999): 107–40; “Civilizing Punishment: The End of the Public Execution in England,” Journal of British Studies 33 (1994): 257–82; “The Changing Face of God’s Justice: The Debates over Divine and Human Punishment in Eighteenth-Century England,” Criminal Justice History 9 (1988): 63–98; “The Body and Punishment in Eighteenth-Century England,” Journal of Modern History 59 (1987): 651–79; “A Powerful Sympathy: Terror, the Prison, and Humanitarian Reform in Early Nineteenth-Century Britain,” Journal of British Studies 25 (1986): 312–34; and “‘He Beareth Not the Sword in Vain’: Religion and the Criminal Law in Eighteenth-Century England,” Eighteenth-Century Studies 21 (1987–88): 191–211. For McGowen’s assessment of Gatrell’s Hanging Tree, see “Revisiting the Hanging Tree: Gatrell on Emotion and History,” British Journal of Criminology 40 (2000): 1–13.
156. On this theme, see Donna T. Andrew and Randall McGowen, The Perreaus and Mrs. Rudd: Forgery and Betrayal in Eighteenth-Century London (Berkeley: University of California Press, 2001).
157. “Executing a large proportion of capital convicts might … be feasible when that proportion translated into a relatively small absolute number on any single occasion…. But by the end of [the eighteenth] century, this was no longer the case.” Devereaux, “Imposing the Royal Pardon,” 131.
158. See Andrea McKenzie, “God’s Tribunal: Guilt, Innocence, and Execution in England, 1675–1775,” Cultural and Social History 3 (2006): 121–44.
159. See Gatrell, Hanging Tree, 435–37 (citing, inter alia, James Harmer, The Murder of Mr. Steele: Documents and Observations, Tending to Shew a Probability of the Innocence of John Holloway and Owen Haggerty, Who were Executed … as the Murderers of the Above Gentleman [London: n.p., 1807]).
160. See Bruce P. Smith, “The History of Wrongful Execution,” Hastings Law Journal 56 (2005): 1185–1233. Phillipps (1780–1862), a prominent treatise writer, served as Under-Secretary of State at the Home Department from 1827 to 1848. See Michael Lobban, “Phillipps, Samuel March,” ODNB, <http://www.oxforddnb.com/view/article/22142> (25 February 2007).
161. See Gwenda Morgan and Peter Rushton, Eighteenth-Century Criminal Transportation: The Formation of the Criminal Atlantic (Houndsmills Basingstoke: Palgrave Macmillan, 2004); A. Roger Ekirch, Bound for America: The Transportation of British Convicts to the Colonies, 1718–1775 (Oxford: Oxford University Press, 1987); Heather Shore, “Transportation, Penal Ideology and the Experience of Juvenile Offenders in England and Australia in the Early Nineteenth Century,” Crime, Histoire et Sociétés/Crime, History and Societies 6.2 (2002): 81–102; Simon Devereaux, “In Place of Death: Transportation, Penal Practices and the English State, 1770–1830,” in Qualities of Mercy: Justice, Punishment and Discretion, ed. Carolyn Strange (Vancouver: University of British Columbia Press, 1996), 52–76; and David Smith, “The Demise of Transportation: Mid-Victorian Penal Policy,” Criminal Justice History 3 (1982): 21–45.
162. On penitentiaries, see Margaret DeLacy, Prison Reform in Lancashire, 1700–1850 (Stanford: Stanford University Press, 1986) and Randall McGowen, “The Well-Ordered Prison: England, 1780–1865,” in The Oxford History of the Prison, ed. Norval Morris and David J. Rothman (New York: Oxford, 1995), 79–109. For earlier studies, see Robin Evans, The Fabrication of Virtue (Cambridge: Cambridge University Press, 1982) and Michael Ignatieff, A Just Measure of Pain: The Penitentiary in the Industrial Revolution (London: Macmillan, 1978). On the subject of eighteenth-century houses of correction, which continue to remain understudied, see Joanna Innes, “Prisons for the Poor: English Bridewells, 1555–1800,” in Labour, Law and Crime: An Historical Perspective, ed. Francis Snyder and Douglas Hay (London: Tavistock, 1987), 42–122 and George Fisher, “The Birth of the Prison Retold,” Yale Law Journal 104 (1995): 1235–1324.
163. See Gregory T. Smith, “Civilized People Don’t Want to See That Kind of Thing: The Decline of Public Physical Punishment in London, 1760–1840,” in Qualities of Mercy, 121–51.
164. See Peter King, “War as a Judicial Resource: Press Gangs and Prosecution Rates, 1740–1830,” in Law, Crime and English Society, 97–116.
165. See Peter King, “The Making of the Reformatory: The Development of Informal Reformatory Sentences for Juvenile Offenders, 1780–1830,” in Crime and Law in England, 142ff. For an earlier treatment, see “The Development of Informal Reformatory Sentences for Juvenile Offenders in the Late Eighteenth and Early Nineteenth Centuries,” Center for the Study of Law and Society Bag Lunch Speaker Series (University of California, Berkeley), Paper 21, 1 November 2004, <http://repositories.cdlib.org/csls/lss/21> (20 December 2006).
166. See Gwenda Morgan and Peter Rushton, “Running Away and Returning Home: The Fate of English Convicts in the American Colonies,” Crime, Histoire et Sociétés/Crime, History and Societies 7.2 (2003): 61–80.
167. Gallanis, “Mystery of Old Bailey Counsel” (suggesting that the threat of confinement in the hulks and transportation to Botany Bay encouraged defendants post-1775 to retain counsel in increasing numbers).
168. For a description of the Old Bailey Proceedings Online, see <www.oldbaileyonline.org>. Within the next few years, the project’s organizers intend to publish proceedings covering the period from 1834 to 1913. See <http://www.oldbaileyonline.org/about/#1834>.
169. For a description, see Gallanis, “Legal History with 21st-Century Tools.”
170. See William S. Hein & Co., State Trials on CD-ROM, <http://www.wshein.com/Catalog/Product.aspx?item=311836>. For an incisive review of this source’s potential, see Thomas Gallanis, “Adversarial Culture, Adversarial Doctrine: Cross-Examination and Leading Questions in the ‘State Trials on CD-ROM,'” Journal of Legal History 23 (2003): 86.
171. See Thomson Gale, Eighteenth Century Collections Online, <http://www.gale.com/EighteenthCentury/index.htm> (describing the project as “the most ambitious single digitization project ever undertaken”).
172. See Thomson Gale, The Making of Modern Law, <http://www.galeuk.com/trials/moml/> (estimating the size of the digitized archive as approximately 10.6 million pages).
173. The 18th Century British Parliamentary Papers Project (<http://www.parlpapers.ac.uk/18c/>), based at the University of Southampton, has employed a novel robotic scanning technology to create “a comprehensive digital library” of parliamentary papers published between 1688 and 1800. ProQuest’s digital archive of 19th Century House of Commons Parliamentary Papers makes available materials for the nineteenth century previously accessible only in hard copies or microfiche. See <http://www.proquest.co.uk/products/19thcent_house_of_commons_parliamentary_papers.html>. In turn, the British Official Publications Collaborative Reader Information Service (BOPCRIS) allows researchers to use a Web-based database to search and browse both eighteenth- and nineteenth-century parliamentary papers. See <http://www.bopcris.ac.uk/>.
174. The Times Digital Archive, for example, permits users to search copies of The Times (London) from 1785 to 1985. See <http://www.gale.com/Times/>. For additional newspaper sources, see British Library, Newspapers Digitisation Project: British Newspapers 1800–1900, <http://www.bl.uk/collections/britishnewspapers1800to1900.html>. For studies demonstrating the riches of newspapers as a source of information on criminal justice administration, see Peter King, “Newspaper Reporting, Prosecution Practice and Perceptions of Urban Crime: The Colchester Crime Wave of 1765,” Continuity and Change 2 (1987): 423–54 and John Styles, “Print and Policing: Crime Advertising in Eighteenth-Century Provincial England” in Policing and Prosecution, 55–111.
175. The Police Gazette originated as “information sheets” published by Sir John Fielding in the 1770s. In recent years, copies of the Police Gazette that survive in English and Australian archives for the periods 1797–1840 and 1848–50 have been made available on microfilm by Adam Matthew Publications. Copies of the Police Gazette from 1828–39, including portions for 1836 not contained in the existing microfilm series, can be found in the National Archives in the series HO 62/1–22. For a description of the microfilm source, see Adam Matthew Publications, The Police Gazette, Publisher’s Note, <http://www.adam-matthew-publications.co.uk/digital_guides/police_gazette_part_2/Publishers-Note.aspx>.
176. T. P. Gallanis, “Evidence Law and the Evidentiary Objection: A View from the ‘British Trials’ Collection,” in Domestic and International Trials, vol. 2, The Trial in History, ed. Rose A. Melikan (Manchester: Manchester University Press, 2003), 12–21. See also the sources cited in note 14 above.
177. Maitland, Why the History of English Law Is Not Written, 12.
178. Ibid., 13.
179. See Masters, Servants, and Magistrates.
180. James Q. Whitman, Harsh Justice: Criminal Punishment and the Widening Divide between America and Europe (Oxford: Oxford University Press, 2003).
181. See, however, Masters, Servants, and Magistrates; Miller, Cops and Bobbies; George Fisher, Plea Bargaining’s Triumph: A History of Plea Bargaining in America (Stanford: Stanford University Press, 2004); and Palmer, Police and Protest. For a recent effort, see Comparative Histories of Crime, ed. Barry Godfrey, Clive Emsley, and Graeme Dunstall (Cullompton, U.K.: Willan, 2003).
182. Maitland, Why the History of English Law Is Not Written, 14, 16.
183. For a modern caution, see Martin S. Flaherty, “History ‘Lite’ in Modern American Constitutionalism,” Columbia Law Review 95 (1995): 523–90.
184. Maitland, Why the History of English Law Is Not Written, 14.
185. See above Part II(A).
186. See, for example, William J. Stuntz, “The Substantive Origins of Criminal Procedure,” Yale Law Journal 105 (1995): 393–447 (discussing the impact of eighteenth-century English seditious libel cases on the original understanding of the Fourth Amendment).
187. See, for example, Richard McAdams, “A Focal Point Theory of Expressive Law,” Virginia Law Review 86 (2000): 1649–1729.
188. Compare, for example, V. A. C. Gatrell, “The Decline of Theft and Violence in Victorian and Edwardian England,” in Crime and the Law, 238–370, with George L. Kelling and Catherine Coles, Fixing Broken Windows (Berkeley: University of California Press, 1990).
189. See, for example, Gary S. Becker and George J. Stigler, “Law Enforcement, Malfeasance, and Compensation of Enforcers,” Journal of Legal Studies 3 (1974): 1–18; William M. Landes and Richard A. Posner, “The Private Enforcement of Law,” Journal of Legal Studies 4 (1975): 1–46.
190. Michael Heise, “Mercy by the Numbers: An Empirical Analysis of Clemency and Its Structure,” Virginia Law Review 89 (2003): 239–310.
191. Compare, for example, Feeley and Lester, “Legal Complexity and the Transformation of the Criminal Process,” with Michael Heise, “Criminal Case Complexity: An Empirical Perspective,” Journal of Empirical Legal Studies 1 (2004): 331–69.
192. Maitland, Why the History of English Law Is Not Written, 19.
193. Ibid., 18–20.
194. Although the working conditions of barristers in London remain challenging, there has been no exodus to English academic positions, which possess their own rigors—at far lower pay. At any rate, the Public Record Office no longer resides at Chancery Lane but at Kew—a considerable distance from Holborn.
195. King, Crime and Law in England.
196. McKenzie, Tyburn’s Martyrs: Execution in England, 1675–1775 (forthcoming). In 2006, the American Society for Legal History awarded both the Sutherland and Surrency prizes to McKenzie’s article on peine forte et dure. See McKenzie, “‘This Death Some Strong and Stout Hearted Men Doth Choose.'”
197. Simon Devereaux, Convicts and the State: Criminal Justice and the English Government, 1750–1810 (forthcoming).
198. Bruce P. Smith, Summary Justice: Magistrates, Theft, and the Law in London and the Urban Atlantic World, 1760–1860 (book manuscript).
199. Peter Linebaugh has turned his attention to the history of the transatlantic working class. After publishing The Hanging Tree in 1994, Gatrell shifted his interests to the history of English manners, humor, and satire. John Styles, who wrote a series of pioneering studies of summary proceedings and magisterial practice in the eighteenth century, later shifted his interests to the history of fashion, taking a position at the Victoria and Albert Museum.
200. A cursory examination of the titles of the roughly 1,300 theses in progress in the United Kingdom during 2005 revealed less than ten that included the words “crime” or “criminal” in their titles. See Theses in Progress, 2005, <http://www.history.ac.uk/ihr/Resources/Theses/tp.html>. By way of comparison, the word “class” appeared in thirty-five titles, “gender” in seventeen titles, and “masculinity” in eight titles.
201. Many of these scholars (including Simon Devereaux, Allyson May, Andrea McKenzie, and Greg Smith) trained with John Beattie at the University of Toronto.
202. For example, Drew Gray, a lecturer in history at the University of Northampton, has recently completed a promising dissertation, under the supervision of Peter King, on summary procedure in the City of London.
203. Maitland, Why the History of English Law Is Not Written, 16.
204. Ibid., 17.
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