The Presumption of Guilt
and the English Law of Theft, 1750-1850
Bruce P. Smith†
I. INTRODUCTION
The “presumption of innocence” – the doctrine that the prosecution must both
produce evidence of the defendant’s guilt and persuade the fact-finder of that guilt
“beyond a reasonable doubt” – is a fundamental tenet of Anglo-American criminal law.
Legal historians have argued that the presumption crystallized in English law in the lateeighteenth century as part of a constellation of safeguards afforded defendants accused of
felonies, including the right to counsel and a general commitment to “adversarial
procedure.”1 This essay argues, by contrast, that many English criminal defendants
between 1750 and 1850 did not benefit from a presumption of innocence but, rather,
struggled against a statutory presumption of guilt.
In the starkest cases, defendants labored under a presumption of guilt when
charged with violating one of numerous statutes passed by Parliament from the mideighteenth through the early-nineteenth centuries designed to combat various forms of
misappropriation. Under these statutes, persons detected in possession of items such as
metal, rope, textile materials, or wood who failed to “account” adequately for their
possession could be convicted by magistrates of misdemeanors in “summary” (i.e., nonjury) proceedings, which dispensed with certain important procedural and evidentiary
protections applicable in cases of larceny tried in the higher courts.2 My essay advances
two main claims: first, English criminal justice administrators from roughly 1750 to 1850
routinely resorted to summary proceedings in cases of suspected theft because of the
challenges of securing convictions in the higher courts for the felony of larceny; and,
second, English criminal justice administration in this era is best viewed as a “two-tiered”
system, in which felony defendants tried in the higher courts benefited from procedural
and evidentiary protections that were denied to misdemeanor defendants tried summarily
by magistrates.
II. PROSECUTING LARCENY AT THE EARLY NINETEENTH-CENTURY OLD BAILEY
In theory, prosecutors seeking to prove larceny – the most frequently prosecuted
criminal offense in late eighteenth- and early nineteenth-century London – needed to
establish that the accused “took” the property (“caption”); that the suspect “carried it
away” (“asportation”); that the property qualified as “goods” or “chattels,” and not “real”
property; and that the accused had acted with “felonious intent.”3
Despite the apparent simplicity of these elements and the centrality of the law of
larceny to English criminal justice administration, several obstacles conspired to frustrate
prosecutions for the offense. Because thieves frequently operated at night and often
targeted nondescript materials such as wool, coal, wood, or rope, owners of property
might fail to detect the loss of their items altogether. If a victim of theft did manage to
detect that goods had gone missing, he or she might still decline to prosecute, deterred by
the inconvenience and cost of trial, by the relative ease of negotiating a settlement with
the suspect, or by qualms about the severity of the accused’s possible punishment. A
victim who did seek to try a case in the higher courts then faced the challenge of
obtaining a “true bill” from a grand jury.4
2
Even if a victim of theft negotiated these obstacles, prosecutions for larceny could
encounter evidentiary pitfalls at trial. Here, the nature of the goods typically stolen in
London – what might be termed the “material culture of theft” – could raise significant
problems of proof. In 1802, for example, a shoemaker named John Smith prosecuted
Richard May for allegedly stealing a pair of shoes valued at 4 shillings that Smith
claimed to have left hanging outside his house. At trial, Smith endured the following
skeptical cross-examination from May’s defense counsel:
Q: What is there remarkable in the shoes?
A: They are very badly made and closed; they are bad altogether.
Q: You would not swear there are not many others made like them?
A: No.5
After hearing this meek concession, the jury acquitted May. Similarly, in a case tried at
the Old Bailey several months later, a servant named Robert Puller testified gamely that
he had apprehended the accused at nighttime with “live ducks” in a bag. Puller claimed
that, at the time of the encounter, he had “counted the ducks” in his master’s “yard” and
“found two short of the number.” After hearing this testimony, the barrister John Gurney
subjected the servant to a withering cross-examination:
Q: How many ducks had you in the yard?
A: Twenty-one dozen and five [i.e., 257].
Q: You do not mean to swear to [the identity of] the ducks [allegedly stolen]?
A: No, I cannot.
Q: There was nothing remarkable in the colour of those ducks?
A: No.
3
Q: Did you count them over?
A: No; the man that counted them is not here.
When Puller’s master appeared at trial, he could only aver feebly that he “believe[d]” the
ducks at issue to be his, although he could not “positively swear to them.” After hearing
from four character witnesses called on the defendant’s behalf, the jury returned a verdict
of not guilty.6
For twenty-first century readers – whose possessions can be distinguished by
model, brand, and often identification number – it requires an imaginative leap to
recapture the dramatically different material world of late eighteenth- and early
nineteenth-century England. During that time, wealth frequently resided in goods whose
nondescript nature made them virtually indistinguishable from similar items held by
others. And the nature of this early modern material culture had serious implications for
the prosecution of larceny: “badly made” shoes and nondescript ducks might well be too
commonplace for property owners to identify credibly at trial as their own.7
Contemporary commentators understood perfectly well that victims of theft might
face difficulties in proving the offense of larceny. In his influential three-volume treatise
on the law of evidence first published in England in 1824, Thomas Starkie noted that, in
cases alleging larceny, “the caption and asportation can seldom be directly proved by an
eye-witness” and, thus, “presumptive [i.e., circumstantial] evidence must in general be
resorted to” by the prosecution. Starkie also recognized, realistically, that “[t]he most
usual and cogent evidence” of the defendant’s wrongdoing “consist[ed] in proof of the
prisoner’s possession of the stolen goods.”8
So much seemed clear. Unfortunately for prosecutors, the mere fact that a
4
defendant had been apprehended with goods suspected to have been stolen might pay few
benefits at trial. From the late-seventeenth through the early-nineteenth centuries,
prominent legal commentators urged that, to support a conviction for larceny, the
prosecution should be required to prove what modern lawyers call the “corpus delicti” –
that the goods found in the defendant’s possession had indeed been stolen from someone.
As Starkie counseled, “a prisoner ought not to be convicted of stealing the goods of a
person unknown, upon such [presumptive] evidence, without proof that a felony [had]
actually been committed.”9
Starkie echoed earlier legal commentators, among them Matthew Hale and
William Blackstone. Blackstone, for his part, had urged judges not only to enforce the
corpus delicti rule but also to be profoundly cautious in their treatment of presumptive
evidence – especially evidence of a defendant’s unexplained possession of goods
suspected to have been stolen. Indeed, Blackstone’s concern with the risks of convicting
persons of larceny based upon “unexplained possession” prompted him to articulate the
maxim now remembered only in part: “all presumptive evidence of felony should be
admitted cautiously: for the law holds, that it is better that ten guilty persons escape, than
that one innocent suffer.”10
III. CRIMINAL PROCEDURE IN THE POLICE OFFICES
OF EARLY NINETEENTH-CENTURY LONDON
Although historians have attempted to relate responses to theft in eighteenthcentury England to broader shifts in the organization of the workplace or the ideology of
property, such explanations, to date, have not explained adequately why English criminal
justice administrators resorted so often to summary proceedings that required suspects to
5
“explain away” suspicion.11 Quite simply, such proceedings addressed the principal
problems in detecting, prosecuting, and proving larcenies.
Consider the fates of two persons tried by magistrates for larceny-related offenses
in the mid-1830s in the police offices of metropolitan London. On October 24, 1836,
Thomas Murray, a self-styled metal dealer, appeared at the Thames Police Office in
Wapping. Officers had arrested Murray and a man named Edward Bloxham in the parish
of Saint Giles with 400 pounds-weight of lead in their possession, which had apparently
been “doubled up and beaten together in such size and shape as to be carried . . . under
the clothes of the person conveying them,” suspended there “upon a belt fastened round
the body or . . . from the braces [i.e., suspenders] or neck.”12
When Murray appeared at the police office, the attending magistrate instructed
him to demonstrate “not only that he had purchased [the lead] but also that it [had] been
bought under such circumstances as would remove the suspicion attached to it.” Murray
provided the following response:
I do a deal of business in the lead trade. I can’t speak to every piece of it. I
purchased it in the way of trade of master plumbers in exchange – If a
plumber comes to me for a 6 wt. [?] of sheet he has it and I take some in
exchange. I sometimes change 3 or 4 tons in a week – the large piece of
pipe I bought [from] Mr. Buckingham. With respect to the nails [i.e.,
“plumbers’ pins”?] I don’t know much about [that], I am not versed in that
sort of thing.
Unimpressed with this explanation, the attending magistrate summarily convicted Murray
and sentenced him to a £5 fine, noting that the suspect had “passed very lightly over the
6
strong points of the case against him.”13
Similarly, in late-December 1837, police officers in eastern London entered the
home of John William Adams, a silk-weaver. Acting pursuant to a search warrant, the
officers discovered there “Three Pounds weight of unwrought Silk of different colours
. . . and One Hundred and forty Wooden Bobbins, being Tools and Implements with
which Persons are entrusted for manufacturing Silk Materials, . . . suspected to be
purloined and embezzled.” The officers promptly brought Adams and the materials that
they had discovered before the police magistrates in attendance at the Worship Street
Police Office in Shoreditch.14
After no individual came forward to claim the materials, the magistrates
remanded the case for a week “to give [Adams] time” to “prove” how he had come by the
goods. Adams first “aplied to one of Whom he [had] bought some portion [of the silk]
and [the seller] readley Came Forward.” He “then aplied to the Other [seller],” who stated
that “the invoice [that allegedly recorded the sale] was Sufeiscint but Come he Would if
Sent For.”15 When Adams appeared at the police office ten days after his arrest, the
magistrates again called upon him to demonstrate “how he became poss[ess]ed” of the
silk. Although Adams “put in his invoiceses for one part and called persons to prove the
Other,” the magistrates summarily convicted him after he failed to produce “persons to
prove the bills [i.e., the ‘invoiceses’].” They then sentenced Adams – a first-time offender
– to a £20 fine or a one-month stint in the house of correction in default of payment.
By dispensing with private prosecutors, by evading the corpus delicti rule, and by
eroding the traditional elements of larceny, statutes that required suspects to “account”
for possession made theft-related offenses significantly easier to prove. Resort to
7
summary proceedings also assisted convictions by diminishing the influence of defense
counsel. At the Old Bailey, as we have seen, skilled defense counsel could undermine
assertions of ownership made by alleged victims of theft, especially in cases where the
property claimed to have been stolen was nondescript and, thus, was difficult for
prosecutors to identify. Triumphs of cross-examination did not characterize the world of
the urban police office. In this setting, the fates of defendants rose – and, more typically,
fell – on their own primitive forensic abilities.16 Whereas defense counsel at the Old
Bailey frustrated prosecutions by quieting their clients, defendants in the police offices
frequently had no choice but to convict themselves through their own fumbling words or
awkward silences.17
IV. CONCLUSION
It is difficult to square the evidentiary regimes under which Murray and Adams
were convicted with any meaningful concept of the presumption of innocence or, for that
matter, the “beyond-reasonable-doubt” standard of proof often considered to be a
component of the presumption.18 To the contrary, statutes that required suspects to
“account” for possession effectively required them “to establish innocence” – a burden at
odds with even the weakest conception of our modern-day presumption.19
How did English criminal justice administrators justify a system that denied
suspected thieves the procedural and evidentiary protections applicable in the higher
courts and, instead, relegated them to summary proceedings in which conviction rates
hovered near 80 percent?20 In a submission to a Parliamentary subcommittee on the
metropolitan police offices in 1837, the police magistrate James Traill acknowledged the
8
incongruity of trying persons in summary proceedings for offenses that were “attended
with an equal degree of moral guilt, and nearly the same penal consequences to the
offender” as were cases of simple larceny tried at the Old Bailey. Admitting that police
magistrates routinely convicted suspects in summary proceedings upon “less conclusive
evidence” than was needed to secure convictions in the higher courts, Traill observed that
his colleagues sought to justify this state of affairs by “the lesser alleged offence of which
[the suspect] [was] to be summarily convicted.”21 The police magistrate Patrick
Colquhoun, writing four decades earlier, was even more blunt. Arguing for an expansion
of the summary jurisdiction of London’s magistrates, he argued that metropolitan
magistrates should be permitted “[t]o inflict slight Penalties by summary Procedure on
circumstantial Evidence, aided by the Examination of the Delinquent . . . where, on
regular proof, it would be Felony.”22 According to Colquhoun, “putting the onus
probandi on the offender” would serve “the ends of Public Justice . . . by inflicting some
punishment on the offender, . . . however inferior it may be to what he deserves.”23
Of course, the advantages of placing evidentiary burdens on criminal defendants
remain today. In 2001, the English House of Lords considered the case of Regina v.
Lambert, an appeal by a defendant convicted of intent to supply cocaine under the Misuse
of Drugs Act, 1971.24 The appellant, Lambert, had been convicted of drug trafficking
after he failed to carry a statutorily-imposed burden of proving that he did not know that a
bag in his possession contained a controlled substance. On appeal, Lambert argued that
the Misuse of Drugs Act, by requiring suspects to prove “lack of knowledge,” violated
Article 6(2) of the European Convention for the Protection of Human Rights and
Fundamental Freedoms, which provides that “[e]veryone charged with a criminal offence
9
shall be presumed innocent until proved guilty according to law.”25
The Law Lords ultimately dismissed Lambert’s appeal after interpreting the
statute at issue to impose upon defendants only an “evidentiary” burden of production
rather than a “legal” burden of persuasion. However, in a ringing dissent, Lord Steyn
characterized “the transfer of the legal burden” to the defendant under the Misuse of
Drugs Act to be “a disproportionate reaction to perceived difficulties facing the
prosecution in drugs cases” that was “incompatible with Convention rights.” Reflecting
on the number of statutes in England that included “reverse onus” provisions, he
observed that Parliament had “frequently and in an arbitrary and indiscriminate manner
made inroads on the basic presumption of innocence” and, regrettably, that “the process
of enacting legal reverse burden of proof provisions continued apace.”26
As a matter of public policy, one might agree with Parliament’s judgment that
persons apprehended with illegal narcotics in their possession can reasonably be expected
to bear the burden of accounting for them. Alternatively, one might side with Lord Steyn
and view the Misuse of Drugs Act as a legislative overreaction to the problem of
assembling sufficient proof in cases involving suspected narcotics traffickers. Few,
however, would quarrel with the notion that persons who possess illegal narcotics (or
who associate closely with persons who possess them) can expect to assume considerable
legal risk. But if convictions of persons apprehended with narcotics raise serious
constitutional concerns about the presumption of innocence, how are we to assess an
earlier legal regime in which persons who possessed lead, silk, rope, or wood –
substances, unlike illicit narcotics, that persons typically possess legally – were presumed
to be guilty?
10
Yet if summary proceedings provided several distinct and important advantages to
criminal justice administrators, they ultimately did not deny persons suspected of petty
theft their capacity to act. Writing in 1800, Patrick Colquhoun noted that individuals
engaged in operating small craft on the Thames who faced the risk of summary
convictions for thefts of cordage, buoys, and other nautical goods had formed a “general
Subscription Club, for the purpose of defraying all expences arising from detections,
penalties, and forfeitures.” According to Colquhoun, “the common fund” of pooled
contributions “secured them against all expences underlying [the] offense.”27 Concerned
about the prospects of conviction under statutes that required them to “explain away”
presumptive evidence of guilt, these enterprising individuals simply engaged in their own
brand of “self help” and insured against the monetary consequences of conviction.
ENDNOTES
†
Assistant Professor of Law, University of Illinois College of Law. An expanded version
of this essay is scheduled to appear in Law and History Review in 2005.
1
See generally Allyson N. May, The Bar and the Old Bailey, 1750-1850 (Chapel Hill:
University of North Carolina Press, 2003), 233 (claiming that English legal commentators, by the
1840s, had articulated “a new standard of justice . . . , one rooted in the presumption of
innocence, the right to counsel, an onus on the prosecution rather than the defense, a high
standard of evidentiary proof, and a belief in adversarial procedure”).
Unfortunately, although summary proceedings played a “vital” role in English criminal
justice administration in the eighteenth and nineteenth centuries, “summary justice” remains
“relatively understudied” as a historical phenomenon. Peter J. King, Crime, Justice, and
Discretion in England, 1740-1820 (Oxford: Oxford University Press, 2000), 5 n.10.
2
3
Thomas Starkie, A Practical Treatise on the Law of Evidence, and Digest of Proofs, in
Civil and Criminal Proceedings, 2d Am. ed., vol. 2 (Boston: Wells and Lilly, 1828), 824.
4
See Bruce P. Smith, “Summary Justice and the Myth of Private Prosecution in England”
11
(paper presented at the annual meeting of the North American Conference on British Studies,
Portland, Oreg., October 2003).
5
Richard May, Old Bailey Sessions Papers (OBSP) (1802, 3d sess.), Case No. 191.
6
Richard Thropp, OBSP (1802, 6th sess.), Case No. 499.
7
See Cynthia Herrup, The Common Peace: Participation and the Criminal Law in
Seventeenth-Century England (Cambridge: Cambridge University Press, 1987), 78-79.
8
Starkie, Treatise, 2:840.
9
Ibid., 2:841 (emphasis added).
10
William Blackstone, Commentaries on the Laws of England, vol. 4, Of Public Wrongs
(1769; reprint, with an introduction by Thomas A. Green, Chicago: University of Chicago Press,
1979), 358.
11
For example, although Peter Linebaugh has argued that a crisis in eighteenth-century
English capitalism led to a dramatic shift in attitudes among the propertied classes to perquisites
and customary entitlements, he fails to explain why criminal justice administrators opted so
frequently for summary proceedings. To the contrary, much of Linebaugh’s discussion focuses on
capital punishment. See Linebaugh, The London Hanged: Crime and Civil Society in the
Eighteenth Century, 2d ed. (London: Verso, 2003). Here, as always, John Beattie provides wise
counsel: “[W]e need to resist taking the view that the responses inspired by the problems of urban
crime were in any sense inevitable . . . . Rather, it is more useful to ask why some options were
chosen among those that might have been available and not others – and to place them in as wide
a social, cultural, economic, and political context as possible.” J.M. Beattie, Policing and
Punishment in London, 1660-1750: Urban Crime and the Limits of Terror (Oxford: Oxford
University Press, 2001), 4.
12
William Ballantine and Thomas Clarkson to S.M. Phillipps (Under-Secretary of State
at the Home Office), 6 December 1836, Thames Police Office Letter Book, 11 June 1834-14 July
1842, PS.T/1/Letter book/3, London Metropolitan Archives (LMA).
13
Bloxham was discharged. See Daily Police Report, 24 October 1836, HO 62/18, Public
Record Office (PRO).
14
See MJ/SP/1838/02/048a, LMA.
“To the Secretary of State For the home Departmn [t]he Humble pittion [i.e., petition]
of John William Adams,” 27 March 1838, Home Office In-Letters, HO 59/9, PRO.
15
Before “the arrival of the lawyers,” as John Langbein notes, “[t]he defendant’s refusal
to respond to the incriminating evidence against him would have been suicidal.” Put differently,
“[w]ithout counsel, the testimonial and defensive functions were inextricably merged, and
refusing to speak would have amounted to a forfeiture of all defense.” John H. Langbein, “The
Historical Origins of the Privilege Against Self-Incrimination at Common Law,” Michigan Law
Review 92 (1994), 1048.
16
12
In effect, such statutes “force[d]” the defendant “into the witness-box,” where “his
unsatisfactory answers on cross-examination . . . enable[d] him to be convicted.” Glanville
Williams, “Statutory Powers of Search and Arrest on the Ground of Unlawful Possession,”
Criminal Law Review, 1960, no. 9:608.
17
Referring to the early-modern period, Barbara Shapiro observes incisively that “[n]o
established . . . evidentiary standards seem to have guided the justices [of the peace] in their
summary misdemeanor deliberations.” Shapiro, “Beyond Reasonable Doubt” and “Probable
Cause”: Historical Perspectives on the Anglo-American Law of Evidence (Berkeley: University
of California Press, 1991), 150. See also John H. Langbein, The Origins of Adversary Criminal
Trial (Oxford: Oxford University Press, 2003), 266 n. 63 (citing to an earlier version of this essay
in observing that summary proceedings appear to have relaxed the “beyond-reasonable-doubt”
standard of proof).
18
See Andrew Ashworth and Meredith Blake, “The Presumption of Innocence in English
Criminal Law,” Criminal Law Review, 1996, no. 5:310 (“An offence that requires a defendant to
prove a defence is one that requires him or her (in certain circumstances) to establish innocence,
and it may therefore be said to derogate from the presumption of innocence. The burden of proof
does not lie on the prosecution in all respects.”). For historical assessments of the evidentiary
regime put in place by statutes with so-called “reverse onus” provisions, 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 Michael Sonenscher (Cambridge:
Cambridge University Press, 1983), 195, and King, Crime, Justice, and Discretion, 103 (arguing
that such statutes effectively reversed “the principle that the accused was innocent until proved
guilty”).
19
20
Rates can be calculated from returns filed by the police offices with the Home Office
that survive for the 1830s. See, e.g., “A Return of the number of Persons charged with Felony
and also of the number of Persons charged with Misdemeanors under the [Vagrancy Act of 1824]
and [the Police Act of 1833] brought before the Magistrates of the Thames Police Office during
the last twelve months; and of the disposal of the persons so charged,” in Thames Police
Magistrates to Home Office, 5 June 1837, Thames Police Office Letter Book, 11 June 1834-14
July 1842, PS.T/1/Letter book/3, LMA.
21
Letter from James Traill to House of Commons Select Committee on Metropolis Police
Offices, 1 December 1837, in Report from Select Committee on Metropolis Police Offices; with
the Minutes of Evidence, Appendix and Index, 1837-38 (Shannon, Ireland: Irish University Press,
1970), appendix.
As Colquhoun pithily observed, in proceedings that required suspects to “account” for
possession, “the Examination of the Delinquent” ultimately furnished the evidence crucial to
secure conviction. Patrick Colquhoun, A Treatise on the Commerce and Police of the River
Thames (1800; reprint ed. Montclair, N.J.: Patterson Smith, 1969), 279.
22
23
Patrick Colquhoun, A Treatise on the Police of the Metropolis (1806; reprint ed.
Montclair, N.J.: Patterson Smith, 1969), 272-73.
24
R. v. Lambert, [2002] 2 A.C. 545 (H.L.).
25
Convention for the Protection of Human Rights and Fundamental Freedoms, art. 6(2).
13
26
Lambert, [2002] 2 A.C. 545, ¶¶ 32, 41 (Steyn, Ld., dissenting) (citing Ashworth and
Black, “Presumption of Innocence”).
27
Colquhoun, Treatise (Thames), 48.
14