The Prosecutorial Origins of Defence Counsel in the Eighteenth Century: The Appearance of Solicitors
Published online by Cambridge University Press: 01 July 1999
In the 1730s English criminal procedure abandoned its centuries-old rule forbidding the defendant in cases of felony to be assisted by counsel. The judges began to allow counsel to examine and cross-examine witnesses on the defendant's behalf, presaging the beginnings of the distinctive Anglo-American adversary system of criminal trial. This article points to two innovations in pretrial practice in the early decades of the eighteenth century that motivated the judges' decision: (1) the increasing influence of solicitors in investigating and preparing witnesses for institutional and private prosecutors; and (2) the growing danger of false witness in prosecutions inspired by a series of reward statutes enacted from 1692 onward. These developments – one-sided lawyerisation and the incentive for false prosecution – unbalanced the old lawyer-free criminal trial and led the judges to allow the assistance of counsel to offset the new advantages of the prosecution.
- Copyright © The Cambridge Law Journal and Contributors, 1999
Arthur Goodhart Professor in Legal Science, Cambridge University, 1997–98. I adhere in this article to conventions that I have followed in prior work using manuscript and antiquarian sources. Words abbreviated in the originals have been written out, missing punctuation supplied, and obvious misspellings corrected without disclosure. Spellings have been modernised, but not in the titles of books or pamphlets. I acknowledge with gratitude suggestions and references from John Beattie, James Oldham, and Michael Prichard, and the research assistance of Cary Berkeley Kaye.
1 For instances of criminal defendants complaining about being denied counsel, see, e.g., John Udall, 1 St. Tr. 1271, 1277 (Croydon Assizes 1590); John Lilburne, 4 St. Tr. 1269, 1294–96, 1317 (Com'n of oyer and terminer, London 1649); Christopher Love, 5 St. Tr. 43, 52–55, 61 (High Court 1651); John Twyn, 6 St. Tr. 513, 516–517 (Old Bailey 1663); Edward Coleman, 7 St. Tr. 1, 13–14 (King's Bench 1678); Stephen College, 8 St. Tr. 549, 570, 579 (Oxford Assizes 1681); Richard Noble et al., 15 St. Tr. 731, 747 (Surrey Assizes 1713).
2 Hawkins, William, A Treatise of the Pleas of the Crown, vol. 2, p. 400 (London, 2 vols., 1716, 1721)Google Scholar.
3 Not, of course, in homicide cases, in which the task was sometimes taken up by the victim's kin, but in which the coroner system was the closest English approximation to Continental-style public prosecution by an investigating officer. (See also note 98 below.) For an indication of the extent of the coroner's activity in the later eighteenth century, see Wiltshire Coroners’ Bills: 1752–1796 (Roy F. Hunnisett, ed.) (1981) (Wiltshire Record Soc., vol. 36).
4 I have recounted the origins and operation of the so-called Marian pretrial procedure in John H. Langbein, Prosecuting Crime in the Renaissance (1974), pp. 5–125 [hereafter cited as Langbein, Prosecuting Crime]; Langbein, John H., “The Origins of Public Prosecution at Common Law” (1973) 17 American J. Legal History 313CrossRefGoogle Scholar.
5 Thomas Smith, De Republica Anglorum, bk. 2, ch. 23, at p. 114 (Mary Dewar, ed., 1982) (1st ed. 1583, written c.1565).
6 Criminal Evidence Act, 61 & 6 Vict., c. 36 (1898); see generally Joel N. Bodansky, “The Abolition of the Party-Witness Disqualification: An Historical Survey” (1981–82) 70 Kentucky L. J. 91. American jurisdictions followed the lead of the English in rendering civil parties competent, but acted in advance of the English in extending the reform to criminal defendants. The timing of the American legislation rendering criminal defendants competent has been linked to sectional strife about the testimonial disqualification of African-American slaves and freedmen. George Fisher, “The Jury's Rise as Lie Detector” (1997) 107 Yale L.J. 575, 662–697.
7 For discussion of what I have called the “accused speaks” theory of the early modern English criminal trial, see Langbein, John H., “The Historical Origins of the Privilege Against Self-Incrimination at Common Law” (1994) 92 Michigan L. Rev. 1047, 1050–52CrossRefGoogle Scholar [hereafter cited as Langbein, “Privilege”]. The point is developed there that the “accused speaks” trial was inconsistent with any privilege against self-incrimination.
8 Christopher Love, 5 St. Tr. 43, 61 (High Court 1651).
9 Hawkins, vol. 2, p. 400.
11 Coke, Edward, The Third Part of the Institutes of the Laws of England: Concerning High Treason, and Other Pleas of the Crown, and Criminal Causes (London 1644) p. 29Google Scholar (posthumous publication, written 1620s–1630s). For discussion of the court-as-counsel rubric see Langbein, “Privilege”, at pp. 1050–52; and Beattie, John M., “Scales of Justice: Defense Counsel and the English Criminal Trial in the Eighteenth and Nineteenth Centuries” (1991) 9 Law & Hist. Rev. 221, 223CrossRefGoogle Scholar [hereafter cited as Beattie, “Scales”].
12 Beattie, “Scales”, p. 223.
13 Ibid. (emphasis added).
15 As far back as the early decades of the seventeenth century, “it was apparently quite common for attorneys to act for individuals accused at quarter sessions of minor criminal offences.” Brooks, C.W., Pettyfoggers and Vipers of the Commonwealth: The “Lower Branch” of the Legal Profession in Early Modern England (1986) p. 190Google Scholar (reviewing several studies). Brooks also reports “demarcation disputes between barristers and attorneys over” the right of audience in such matters at quarter sessions, a struggle that the barristers ultimately won. Ibid. pp. 90–91.
16 7 & 8 Will. 3, ch. 3 (1696). On the background to the legislation, see Shapiro, Alexander H., “Political Theory and the Growth of Defensive Safeguards in Criminal Procedure: The Origins of the Treason Trials Act of 1696” (1993) 11 Law & Hist. Rev. 215CrossRefGoogle Scholar; see also Phifer, James R., “Law, Politics, and Violence: The Treason Trials Act of 1696” (1980) 12 Albion 235CrossRefGoogle Scholar; Rezneck, Samuel, “The Statute of 1696: A Pioneer Measure in the Reform of Judicial Procedure in England” (1930) 2 J. Mod. Hist. 5CrossRefGoogle Scholar.
17 Hawkins, vol. 2, p. 402.
18 Another factor that led Parliament to think that treason defendants stood in special need of defence counsel was mistrust of the bench. The Treason Act of 1696 was enacted in the aftermath of the treason trials of the later Stuarts, in which the bench displayed brazen partisanship for the crown. Until the Act of Settlement secured judicial independence, 12 & 13 Will. 3 ch. 2, §3 (1701), there was concern that the bench could not be trusted in treason trials. See Langbein, John H., “The Criminal Trial Before the Lawyers” (1978) 45 U. Chicago L. Rev. 263, 310CrossRefGoogle Scholar [hereafter cited as Langbein, “Lawyers”].
19 Stephen, James Fitzjames, A History of the Criminal Law of England, vol. 1, p. 424 (1883)Google Scholar (3 vols.) [hereafter cited as Stephen, History].
20 Stephen, History, vol. 1, p. 424.
21 Langbein, “Lawyers”, pp. 311–312.
22 The title wanders across the decades but is usually some variant of “The Proceedings on the King's Commissions of the Peace, Oyer and Terminer, and Gaol Delivery … in the Old-Bailey, on [particular dates, also identified by London mayoral years]” [hereafter cited by month and year as OBSP].
23 E-.J-., OBSP (Jul. 1734, #39) 161, cited in Langbein, “Lawyers”, p. 312 n. 161.
24 Langbein, “Lawyers”, p. 312, n. 161. Years at the Old Bailey were reckoned from December of the previous calendar year, following the mayoral years of the City of London. Hence, the December 1735 sessions began the 1736 year.
25 Beattie, John M., Crime and the Courts in England: 1660–1800 (1986), pp. 356–357Google Scholar [hereafter cited as Beattie, Crime].
26 6 & 7 Will. 4, ch. 114 (1836). On the background to the legislation, see Cairns, David J.A., Advocacy and the Making of the Adversarial Criminal Trial: 1800–1865 (1998), pp. 67–91Google Scholar.
27 Langbein, “Lawyers”, p. 311.
28 Ibid. p. 312 & n. 160.
29 Ibid. p. 313; accord, Beattie, Crime, p. 359.
30 On the reliability of the Old Bailey pamphlets, see Langbein, John H., “Shaping the Eighteenth-Century Criminal Trial: A View from the Ryder Sources” (1983), 50 U. Chicago L. Rev. 1, 21–26CrossRefGoogle Scholar [hereafter cited as Langbein, “Criminal Trial”], concluding that these sources do not fabricate but do compress and delete, hence cautioning that if the “report says something happened, it did; if the … report does not say it happened, it still may have”. Ibid. p. 25.
31 Radzinowicz, Leon, A History of English Criminal Law and Its Administration from 1750, vol. 2, pp. 57–137Google Scholar, 326–346 (4 vols. 1948–68) [hereafter cited as Radzinowicz, History] (treating statutory, nonstatutory, and private rewards).
32 Stephen, History.
33 Holdsworth, William, A History of English Law (16 vols. 1922–66)Google Scholar [hereafter cited as Holdsworth, HEL].
The specialised monographs on the history of the solicitor's or attorney's profession also omit our topic. See, e.g., Michael Birks, Gentlemen of the Law (1960); Harry Kirk, A History of the Solicitor's Profession, 1100 to the Present Day (1976); Robert Robson, The Attorney in Eighteenth-Century England (1959). Brooks’ careful archive-based study (n. 15 above) ends at 1640, hence well before the relevant events.
Geoffrey Holmes’ history of the professions includes a chapter treating lawyers that contains one passing mention of solicitors in criminal practice. Speaking of the period about 1730 Holmes identifies four men as “attorneys specialising in criminal cases, [who] were among eighteen leading London practicers who had chambers, and in some cases lodgings, in the Inner Temple.” Holmes, Geoffrey, Augustan England: Professions, State and Society, 1680–1730 (1982), p. 150Google Scholar. No source is cited, and I have not been able to trace the claim.
34 Parliament supplied the regulatory base for the profession in the act of 2 Geo. II, ch. 23 (1729) (“for the better regulation of attorneys and solicitors”). The Act allowed only persons enrolled with one of the courts to sue out any writ or process, or to carry on any proceeding. See Holdsworth, HEL, vol. 12, pp. 52–57. This registration requirement produced records that make it possible to estimate the extent of the profession. It has been reckoned that London in 1730 had over 1,500 attorneys, or one to every 383 inhabitants. Aylett, Philip, “A Profession in the Marketplace: The Distribution of Attorneys in England and Wales 1730–1800” (1987) 5 Law & History Rev. 1, 3CrossRefGoogle Scholar.
35 Holdsworth, HEL, vol. 6, pp. 456–457.
36 Ibid. p. 453.
37 Birks (n. 33 above), p. 88.
38 Holdsworth, HEL, vol. 6, pp. 453–454.
39 Ibid. p. 453.
41 Chancery purported to follow the common law rule of testimonial disqualification of the parties, see Holdsworth, HEL, vol. 9, pp. 194–195, but Chancery largely overcame the effects of the rule by facilitating party interrogatories and other discovery against parties.
42 The expression is from Subrin, Stephen N., “How Equity Conquered Common Law: The Federal Rules of Civil Procedure in Historical Perspective” (1987) 135 U. Pennsylvania L. Rev. 909CrossRefGoogle Scholar. The title of solicitor is said to have had a superior cachet to that of attorney, as a result of the solicitor's association with Chancery practice, where the clientele was wealthier. Birks (n. 33 above) at p. 144. For evidence from the period 1789–91 that Chancery litigation involved far larger amounts than suits at common law, see King, Douglas, “Complex Civil Litigation and the Seventh Amendment Right to a Jury Trial” (1984) 51 U. Chicago L. Rev. 581, 606CrossRefGoogle Scholar.
43 See Hawkins, vol. 2, p. 368, §1 (discussing autrefois acquit).
44 Many local record offices have holdings of solicitors’ papers, usually deposited when a firm wound up its business. I have examined several such sets of papers. They contain abundant evidence of transactional and conveyancing work, but I have not found solicitors’ briefs or other documents bearing on the work of solicitors in the criminal process in the first half of the eighteenth century. Michael Miles has found some traces of criminal practice in solicitors’ records from later in the century, discussed below, pp. 334, 339–340.
45 Stephen, James Fitzjames, A General View of the Criminal Law of England (London 1863), p. 154Google Scholar. By Stephen's day this account had become anachronistic, on account of the growth of professional policing and the resulting movement towards police prosection. See generally David Philips, “ ‘A New Engine of Power and Authority': The Institutionalisation of Law-Enforcement in England 1780–1830”, in V.A.C. Gatrell et al. (eds.) Crime and the Law: The Social History of Crime in Western Europe Since 1500 (1980), p. 155; see also Radzinowicz, History, vols. 2 & 3.
46 The magistrates were required to bind over to testify at trial “all such … as do declare anything material to prove the … Felony… .” 2 & 3 Ph. & Mar., ch. 10 (1555). I have recounted the discomforts of a victim bound over in 1754 to prosecute at the Old Bailey, in John H. Langbein, “Albion's Fatal Flaws” (Feb. 1983) Past & Present 96, 103-104. Sometimes the magistrate took an active hand in helping investigate felony. See, e.g., Styles, John, “An Eighteenth-Century Magistrate as Detective: Samuel Lister of Little Horton” (1982) 46 Bradford Antiquary (NS) 98Google Scholar.
47 Fielding, Henry, An Enquiry into the Causes of the Late Increase of Robbers (London 1751), in Zirker, Malvin R. (ed.), An Enquiry into the Causes of the Late Increase of Robbers and Related Writings (1988), 61, 157Google Scholar [hereafter cited as Fielding, Enquiry].
48 Ibid. pp. 157–158. Thus, it sometimes happened “that the poor Wretch who hath been bound to prosecute, was under more Concern than the Prisoner himself.” Ibid. p. 157. Fielding wanted more of the costs of prosecution to be borne by the public. From 1752, a series of acts began the process of providing more regular subsidy. See Beattie, Crime, pp. 41–49.
49 E.g., Natalie Zemon Davis, The Return of Martin Guerre (1983); Michael Kunze, Highroad to the Stake: A Tale of Witchcraft (William E. Yuill, trans., 1987), translating Michael Kunze, Strasse ins Feuer: Vom Leben und Sterben in der Zeit des Hexenwahns (1982).
50 Roger Williams, “The Post Office: 300 Years of Prosecuting” (April 1984) 13 The Retainer: The Journal of the Prosecuting Solicitors Society of England and Wales 13.
51 The earliest I have been able to locate is the solicitor's brief in R. v. Squat, P74/253 (1774), Post Office Archives, Mount Pleasant Street Sorting Office, London. Squat, a postal employee, was subsequently tried at the Old Bailey in July 1774 for having stolen money from the mails. At the trial, “Mr. Parkin, Solicitor to the Post-office” testified about his pretrial investigation in the case. OBSP (Jul. 1774, #548), 401. (Squat was acquitted on one indictment but convicted and transported on another.)
52 In a forthcoming book, John Beattie reports that a second Treasury solicitor post had been created in 1696 to prosecute treason and coining, a post that became especially active in prosecuting cases arising from the 1715 Rebellion and related incidents. Beattie reports that from October 1714, two undersecretaries of state were named in the Middlesex commission of the peace, doubtless in order to give them magistrate's examining powers. John M. Beattie, Urban Crime and the Limits of Terror: Policy, Prosecution, and Punishment in London, 1660–1750 (Ch. 9) (forthcoming) [hereafter cited as Beattie, Urban Crime].
53 On the development of the substantive law on these matters see Hall, Jerome, Theft, Law and Society (2d ed. 1952) pp. 34–52Google Scholar.
54 Mint Office Record Book, Volume 8 (1699–1713), Public Record Office [hereafter PRO], Mint 1/8, at 115–120 (“An Account of Expenses and Disbursements in the Prosecution and Conviction of Counterfeiters and Debasers of the Current Coin of this Kingdom and some others for uttering false Money knowing the same to be Such and other Law Charges attending the same in and about London, Westminster, Southwark, Essex and Kingston Assizes for two years, from Michaelmas 1713 to Michaelmas 1715”).
The Mint records also evidence criminal investigations conducted on behalf of the Mint but not expressly attributed to the Mint Solicitor. “The Memorial of Henry Smithson,” dated 25 March 1713/4, recites “[t]hat the said Henry Smithson hath been for near 14 years employed by the late and present Warden of the Mint in the apprehending and prosecuting” of counterfeiters. Mint Office Record Book, Volume 7 (1699–1728), PRO, Mint 1/7, at 64. Smithson was asking to have his bill paid. His “Account of [his] charges and Expenses” contains entries such as “Charges and expenses for my self, assistants and Horses in the pursuing and taking of Elizabeth Metcalfe, Francis Buckle … with others on Suspicion, of whom Elizabeth Metcalfe was convicted and executed and others fined and imprisoned… .” Ibid. at 65.
55 See John Craig, “Isaac Newton and the Counterfeiters” (1963) 18 Notes and Records of the Royal Society of London 136.
56 Newton's investigations are extensively evidenced in PRO, Mint 15/17, a collection of more than 500 “Depositions against or by counterfeiters sworn before Wardens, Mayors or Justices of the Peace, May 1698–May 1706, with a few letters and appeals to mercy to Wardens”.
57 Letter to the Commissioners of the Treasury, (No. 553), Jul./Aug. 1696, in Scott, J.F. (ed.), The Correspondence of Isaac Newton: 1694–1709 (1967), vol. 4, pp. 209, 210Google Scholar.
58 Craig (n. 55 above), p. 143.
59 PRO, Mint 1/8, (n. 54 above), at 118.
60 Ibid. at 122, 123.
61 Ibid. This expression appears often in the Mint accounts and elsewhere. In the Corporation of London Record Office (hereafter, CLRO) there survives a draft indictment in the case of Elizabeth Nichols, which was sent for review to counsel, John Tracy. Nichols was charged with malicious prosecution. Tracy suggested some changes, then wrote at the end of the draft, “I have perused and do approve of the draught of this indictment.” His signature is dated 30 November 1743. CLRO, London Sessions Papers 1744, at 9. (I owe the reference to this file to John Beattie.) Tracy suggested a few drafting changes. At one point he inserted the words “with force and arms.” In the margin he explained, presumably to the instructing City Solicitor: “I know there are precedents without those Words as well as others with them but as the Inserting cannot possibly do any Hurt and the leaving them out may furnish some little objection I thought it safer to Insert them.” Ibid. at 6.
62 Mint Office Record Book, Volume 11 (1752–64), PRO, Mint 1/11, at 84 (account for 1755–56).
63 P. 327 above.
64 “Beginning at the latest with Sir Thomas de Veil, a former soldier who entered the Middlesex commission of the peace in 1729, the government took to singling out one of the Middlesex J.P.s for special service in criminal investigation and prosecution. He received financial support, both in the way of compensation and in order to defray expenses. The person invested with this quasi-official status became known as the ‘court J.P.,’ ‘court’ in this usage referring to the central government.” Langbein, “Criminal Trial”, p. 60.
65 Mint Office Record Book, Volume 11 (1752–64), PRO, Mint 1/11, at 90 (account for 1755–56).
66 Ibid. at 97.
68 In the slender Bank of England archive there survives for the year 1779 a bill from the Bow Street officers for their services in arresting the culprit and going to retrieve silver stashed at his mother's dwelling in Oxford. R. v. J. Matthison, Bank of England, F2/190 (1778–79).
69 By the 1840s the Mint Solicitor had became a prosecutorial administrator, who placed most of the forensic work with outsiders. See Report of the Commissioners Appointed to Inquire into the Constitution, Management, and Expense of the Royal Mint (London, HMSO 1849)Google Scholar (copy preserved as PRO, Mint 2/17). Joseph Blunt, Solicitor of the Mint, testified to a Parliamentary committee about the work of his office. Ibid. p. 183. He reported steadily increasing prosecutions and prosecution costs from the 1780s to the 1840s. In 1786 the Mint brought 22 prosecutions at a cost of £1,325. In 1842 the Mint prosecuted 457 cases at a cost of £10,744. Ibid. p. 184. Blunt testified that he did not attend pretrial examinations or trials. He worked from the pretrial examinations taken by magistrates’ clerks in order to “prepare briefs for the counsel. I draw a short analysis of the case, as a kind of brief, to attract the attention of counsel to the evidence, because without that they would have to hunt out what the different points were.” Ibid. p. 189. The Mint hired local solicitors to manage the prosecutions. “[W]e usually prefer employing the gentleman who sends up the information; he is commonly the magistrate's clerk, and then if he is [an experienced] person … I correspond with him about any deficiency in the evidence.” Ibid. p. 192. For more on the overlap between magistrate's clerk and practising solicitor, see pp. 339–340 below; see also note 192 below.
70 For example, none is recorded in the case against John and Elizabeth Barker, pp. 327, 328 above.
71 Edward Arnold, 16 St. Tr. 695 (Surrey Assizes 1724). The judge's instruction to the jury in this case became an early milestone in the development of the insanity defence. See Walker, Nigel, Crime and Insanity in England: The Historical Perspective (1968), vol. 1, pp. 53–57Google Scholar.
72 16 St. Tr. 697.
73 Ibid. Three other crown counsel endorsed Cheshire's view, Ibid. pp. 697–698.
74 E.g., ibid. pp. 714–715, 717. The “Solicitor for the Prisoner” called the accused's brother to testify about his mental state. The trial judge examined the witness, and prosecution counsel cross-examined. Ibid. pp. 717–718. Most of the questioning seems to have been done by the judge on the solicitor's motion, e.g., “My lord, I desire this witness may be asked” this or that, ibid. p. 737 (two instances), but on occasion the solicitor took over and conducted the examination himself, e.g., ibid. pp. 740–742.
75 The judge, Tracy J, told the solicitor, “You have had an indulgence, the greatest that was ever given before… .” Ibid. p. 743. Elsewhere the judge explained that it was “because there hath been an affidavit sworn, that he is not perfect in his senses” that the crown “gave liberty to another person to call the witnesses, and put what questions they pleased… .” Ibid. p. 758.
76 Investigating solicitors did on occasion testify about their pretrial work. In the celebrated case against Samuel Goodere for murdering his brother, further discussed below, pp. 361–362, the prosecution solicitor, Jarrit Smith, was the first witness to be examined. Samuel Goodere et al., 17 St. Tr. 1003, 1017–26 (Bristol Assizes 1741). The Old Bailey pamphlet reports sometimes disclose the testimony of the Solicitor of the Mint in counterfeiting cases, e.g., Patrick Kelly, et al., OBSP (Jan. 1743, ##116–119), 70, 73; Johannah Wood, OBSP (Jul. 1746, #274), 218, 219.
Oldham reports an incident in 1782 in which Lord Mansfield resolved to schedule a sitting of King's Bench on a date in Whitsuntide week that by custom was an adjourned date. When the barristers boycotted the sitting, Mansfield “ ‘made the Attornies conduct their own causes, and examine their own witnesses.’ ” Oldham, James, The Mansfield Manuscripts and the Growth of English Law in the Eighteenth Century (1992), vol. 1, p. 75Google Scholar [hereafter cited as Oldham, Mansfield Manuscripts] (quoting a newspaper account).
77 E.g, in the case of Sarah Harris, the Mint Solicitor “paid for briefs and copies on trial”. Mint Office Record Book, Volume 8 (1699–1713), PRO, Mint 1/8, at 116 (Kingston Assizes, 1713). In the prosecution of Amy Healy at York, Lent 1756 Assizes, for uttering counterfeits, the Mint Solicitor entered a payment for “Drawing brief.” Mint Office Record Book, Volume 11 (1752–64), PRO, Mint 1/11, at 82–83.
78 Bank of England v. Robert Minors, Bank of England F4/38/1 (1719). The file also contains a copy of the indictment, F4/38/2, and a copy of Minors’ pretrial examination, taken before William Thomson, the Recorder of London. F4/38/3.
79 F4/38/5 (1719).
80 Ibid. at 2.
81 R. v. Savage, CLRO, London Sessions Papers 1702, Miscellaneous Documents file (a case of criminal libel). (I owe this reference to John Beattie.)
82 R. v. Elizabeth Nicholls, CLRO, London Sessions Papers, September 1744, charged with maliciously accusing someone of a felony (the quoted brief dates from 1741 but is filed with documents from 1744 involving the same matter).
83 16 St. Tr. 53 (Suffolk Assizes 1722). The offence was made a capital offence (felony without benefit of clergy) under 22 & 23 Car. 2, ch. 1, §7 (1670).
84 State Papers Domestic Entry Book, PRO, SP 44/81, at 24 (entry for 5 Feb. 1722).
85 Paxton was acting on behalf of the crown in another matter in 1722, advancing money to bring a prisoner down to London from the North. Ibid. at 139. A prosecution brief from Paxton dated June 1729 in an unrelated seditious libel case survives in the Treasury Solicitor's archive, PRO, TS 11/424/1290. In the 1730s Paxton appears to have been active on behalf of the crown in King's Bench prosecutions. E.g., PRO, SP 44/82, at 68, 69, 71, 72, 74, 76. John Beattie, who mentions Paxton's assignment in Arundel's Case (see Beattie, Crime, p. 354) identifies Paxton as the assistant treasury solicitor. For Paxton's role in prosecuting under the Black Act, see Thompson, E.P., Whigs and Hunters: The Origin of the Black Act (1975) pp. 212–213Google Scholar, cited by Beattie, p. 354 n. 92.
86 State Papers Domestic Entry Book, PRO, SP 44/81, at 69, 119, 171.
87 George Smith et al., OBSP (Apr. 1723), 1. Two medical experts testified in rebuttal to the defensive theory.
88 State Papers Domestic Entry Book, PRO, SP 44/81, at 189, Townshend to Attorney General, ibid. at 189 (entry for 11 March 1723).
89 Ibid. at 189, Townshend to Cracherode.
90 OBSP (Apr. 1723), 3.
91 18 St. Tr. 1118, 1120 (Oxford Assizes 1752).
92 PRO, TS 11/854/2948 (the prosecution brief and copies of the depositions from the pretrial committal proceeding).
93 18 St. Tr. 1120.
94 E.g., counsel's statement at 18 St. Tr. 1126–27 contains verbatim paragraphs from the brief, PRO, TS/11/864/2948, at 1–14.
95 John M. Beattie, Urban Crime and the Limits of Terror: Policy, Prosecution, and Punishment in London, 1660–1750 (Ch. 9) (forthcoming).
96 Hawkins, vol. 2, p. 400.
97 Michael Miles, “ ‘Eminent Attorneys': Some Aspects of West Riding Attorneyship c. 1750–1800” (unpublished Ph.D. Thesis, Dept. of Modern History, Univ. of Birmingham, 1982), at p. 257. The account in text follows Miles; I have not inspected his sources.
98 Ibid. p. 257, n. 2. The extract quoted in text is the only one of the six cases that Miles describes.
The understanding that solicitors were by this time characteristically used to gather prosecution evidence is voiced in a pamphlet published in 1768 by an acquitted criminal defendant, James Oliphant. Oliphant was a surgeon who had been prosecuted for the murder of a servant girl whom he contended drowned accidentally. Oliphant alleges in the pamphlet that a vindictive coroner insisted on charging him and his wife with murdering the girl. Describing the coroner's exceptional industry in preparing the case against the Oliphants, the pamphlet complains “that he had become as a solicitor in this prosecution; that he had gone a hunting into the country after other witnesses than those who were examined on the inquest, to give evidence against the prisoners on their trial… .” Anon., The Case of Mr. James Oliphant, Surgeon, Respecting a Prosecution Which He … Underwent in the Year 1764 (Newcastle 1768), p. 49 (Beinecke Library, Yale Univ., shelfmark British Tracts 1768 Ol 4)Google Scholar.
99 Anon., Directions for Prosecuting Thieves Without the Help of Those False Guides, the Newgate Sollicitors [sic] (London 1728) (Bodleian Law Library, Oxford Univ., shelfmark L.Eng.B.62.e.93)Google Scholar [hereafter cited as Directions]. I directed attention to this work in Langbein, “Criminal Trial”, pp. 109 n. 441, 127–129 n. 511.
100 Directions, p. ii.
101 Ibid. pp. 14–27.
102 Ibid. p. ii.
103 Ibid. p. 2.
104 Ibid. p. 4. The tract sets forth a sample bill from a solicitor for managing the case, mostly for pretrial work, which amounts to £3 8s. 9d. Ibid. p. 10. If “you do your Business without a Solicitor, the whole Prosecution of a Thief will cost you no more than two Shillings and four Pence”. Ibid. p. 11. This sum, which is not explained, probably represents the clerk's fee for drafting the indictment.
105 Ibid. p. 2.
106 Ibid. pp. 2–3.
107 Ibid. p. 3.
108 Ibid. p. 3. In a similar vein, the author advises the victim “to give Instructions to the Person who draws up the Indictment”, ibid. p. 7, who is said to be a clerk at the Guildhall or at Hick's Hall or in Westminster Hall, ibid. pp. 9, 27. The clerk “will readily assist you” if you give him the right information. Ibid. p. 9. The prosecutor is better off without using a solicitor to inform the clerk, because (1) the clerks are more deferential to the solicitors, who tend to get the facts wrong; (2) solicitors are “perpetually tippling at the Expense of silly People” who hire them; and (3) “the Solicitor may be in Fee with your Prisoner to entangle you at the same time that he takes your Money, promising to exert the utmost of his Talents to [convict] the Prisoner… .” Ibid. pp. 9–10.
109 Ibid. p. 3.
110 Ibid. p. 5.
112 Ibid. p. 6.
113 Hawkins, vol. 2, p. 400.
114 Because prosecutors come to court nervous and long-winded, the judges must “draw the Circumstances of the Fact from them by a mild and gentle Method… .” Directions, p. 13.
115 Dudley Ryder, newly minted as the Chief Justice of King's Bench and unfamiliar with Old Bailey practice, confided to his diary in 1754 that he planned “to come late some days at Old Bailey on purpose to be present when a trial being on I may hear how the judge sums up and examines witnesses.” Quoted in Langbein, “Criminal Trial”, p. 34.
116 Directions, p. 10, discussed n. 104 above.
117 Directions, p. 10.
118 P. 318 above, regarding the relatively small number of recorded instances of prosecution counsel.
119 Directions, p. 12 (emphasis original).
122 Ibid. pp. 2–3, discussed pp. 335–336 above.
123 Regarding the magistrate's role in the pretrial process, see n.46 above. Model forms for (1) transcribing the examination of an accused, (2) taking a recognisance to bind a victim to prefer a bill of indictment and testify at trial, (3) binding a prosecution witness to testify, and (4) directing an arrest warrant to a constable are set forth in Richard Burn, The Justice of the Peace and Parish Officer (12th ed. 1772), vol. 1 pp. 527–528 (1st ed. 1755).
124 “All but one of the justices’ clerks active [in Kent] in the last quarter of the [eighteenth] century are included in lists of attorneys resident in the counties—lists published for the first time in 1775”: Norma Landau, The Justices of the Peace: 1679–1760, at p. 229 n. 50 (citations omitted). Barnes notices the magistrates’ clerks in private practice a century and a half earlier: Barnes, Thomas G., The Clerk of the Peace in Caroline Somerset (1961) p. 37Google Scholar.
125 “Howarth's yearly emoluments from this source ranged from £68 in 1770 to as much as £151 in 1778.” Miles (n. 97 above), p. 267 (drawing upon Howarth's ledgers, called cash books).
126 Ibid. p. 267. Howarth also advised potential civil and criminal defendants who had been summoned before other magistrates. Ibid. p. 268.
127 Ibid. p. 268.
129 Ibid. p. 270. “His Assizes business, however, increased only slightly.” Ibid.
131 But see note 192 below, regarding the London Grand Jury Presentment of 1733, which denounced as an abuse the practice of magistrates’ clerks charging fees of citizen prosecutors for steps taken as part of the magistrates’ duties under the Marian pretrial procedure.
132 Miles (n. 97 above), p. 270. Thus, “[i]n August 1771 John Ferguson, an Halifax linen draper, came to Howarth with witnesses when Mary Firth had been detected in his shop stealing silk handkerchiefs. Howarth drew the informations [that is, the Marian pretrial examinations] of Ferguson and the two women witnesses and then went to Horton [the J.P.] at Howroyd.” Ibid. p. 270, n. 3 (citing Howarth's manuscript day books).
133 Ibid. p. 270. “For instance, he advised John Holroyd of Marsden about the mode of prosecuting a person on suspicion of maiming three of his tups [sic.; male sheep]. In January 1770 Luke Dewhurst of Turvin was arrested for diminishing the coin, whereupon his wife consulted Howarth for advice. Similarly, he advised Mr. Taylor of Golcar Hill on his son being accused of killing fish. He also advised his tenant whose brother had been accused of coining and he appeared as his defence attorney at York Assizes in March 1770.” Ibid. p. 270 n. 2.
134 Report of the Commissioners Appointed to Inquire into the Constitution, Management, and Expense of the Royal Mint (London, HMSO 1849) (discussed at note 69 above), p. 192Google Scholar.
135 In addition to the State Trials reports discussed next in text, there is a pamphlet report of a 1680 trial held at the Old Bailey, in which counsel, in his opening remarks, refers to his brief, that is, to the solicitor's brief instructing him in the case: “if my brief be true, I make no question but to satisfy your Lordship and the jury … that he had no hand in this Bloody Action.” (Because the offence was charged as misdemeanour, the defendant was allowed counsel, the exception to the rule against defense counsel discussed p. 316 above.) The Tryal of John Giles at the Sessions House in the Old Bayly (London 1681) 30 (tried July 1680 for attempted murder of John Arnold, J.P. for Monmouth and M.P.) (Lincoln's Inn, shelfmark Trials 216, no. 3).
136 Edward Fitzharris, 8 St. Tr. 243 (King's Bench 1681).
137 Fitzharris asked at his trial that “I may have a solicitor; for he was never allowed to come and speak to me, though I had a rule for him.” 8 St. Tr. 329. The Lord Chief Justice replied that he let Fitzharris have a solicitor to assist him in briefing counsel to raise a point of law, but “now we are come to a matter of fact only, and we cannot by the rules of law allow you counsel. Therefore, what need you have of a solicitor, I cannot tell… .” Ibid.
138 Stephen Colledge, 8 St. Tr. 549 (Oxford Assizes 1681).
139 8 St. Tr. 571. (The term “assign” in this usage meant simply to authorise or permit the representation.)
140 If a solicitor is “permitted to go up and down and ask counsel of persons, and bring it in papers to the prisoner, it is the same thing as if counsel came to him. Here is a busy solicitor, and he gets advice from counsel, and then he delivers it to the prisoner… .” 8 St. Tr. 583.
141 8 St. Tr. 584. “If I am ignorant what questions to ask of the witnesses,” Colledge argued, why not let my friends help me formulate them? Ibid. p. 585. North L.C.J. gave the stock reply, invoking the court-as-counsel rubric (discussed p. 316 above). “We will sift out the truth as well as we can, you need not fear it.” 8 St. Tr. 585.
142 1 Stephen, History, p. 406, noted in Holdsworth, HEL, vol. 6, p. 533 n. 11.
143 7 & 8 Will. 3, ch. 3 (1696), discussed p. 317 above.
144 12 & 13 Will. 3 ch. 2, §3 (1701), discussed note 18 above.
145 Richard Noble et al., 15 St. Tr. 731 (Surrey Assizes 1713). “Mr. Lindsey, one of the attorneys concerned for the prisoners (for they had many) deposed that he” had drafted a subpoena for a witness, and sent a messenger to serve it in London, who had not yet returned. Ibid. p. 732.
146 15 St. Tr. 1323 (Old Bailey 1719). Defence counsel Ketelbey, who was allowed to conduct a full defence under the Treason Act of 1696, made an opening statement in which he referred to the solicitor's brief. “[W]e shall, according to our instructions, be able to produce a great number of witnesses to contradict what these witnesses have sworn… .” Ibid. pp. 1368–69.
147 Christopher Layer, 16 St. Tr. 93, (King's Bench 1722). Hungerford, defending, objected to the threatened reading of some papers by the prosecution, “though for my part I know not what they are, for there is no hint of them in my brief… .” Ibid. p. 199.
148 Edward Arnold, 16 St. Tr. 695 (Surrey Assizes, 1724); see pp. 329–330 above.
149 For example, in the case of William Kitchinman, OBSP (Sept. 1737, #8), 165, accused of stealing calico cloth, his solicitor, Mr. Lutwych, tried unsuccessfully to have the trial postponed, telling the court, “The Prisoner's Sister gave me Money for Counsel and Subpoenas against tomorrow,” and that “I gave Subpoenas to Mr. Dottery and his Wife, but I did not imagine his Trial would have been till tomorrow.” Ibid. at 166. In the case of John Latour, OBSP (Sept. 1736, #75), 186, the defendant told the court that “his Attorney had engaged Counsel in his Cause; but the Prosecutor sent notice to him last Night, that the Matter was compromised, and that this was the Reason he had no body to appear for him.” Ibid. at 188. Mr. Compton, identified as Latour's attorney, confirmed this account and “was much surprised when I found Mr. Latour was called to his Trial; if I had known it, I should have feed [that is, paid a fee to, meaning hired] Serjeant Haywood. I had Instructions to call [a witness to speak to a key issue of fact] if I had been prepared.” Ibid.
150 An 1803 committee of inquiry into the work of the City of London Solicitor traced the office back to 1545 and reported that “he has been employed to defend the magistrates and officers of this city in proceedings instituted against them for acts done in the execution of their respective offices and the discharge of their several duties… .” Report in Relation to the Nature, Duties, and Emoluments of the Office of City Solicitor. CLR0, PAR (Papers, Acts & Reports) Book 13 (Common Council, 27 July 1803), at 3.
The Post Office archive, at P74/271, contains a brief titled “The King against Read: For Felony. Brief for the Prisoner”, prepared in 1793 by Parkin & Lambert, which was the firm of Anthony Parkin, who was then the Post Office Solicitor. The Post Office was defending an employee, a guard on the Exeter mail coach, who had fired a weapon in purported defence of the coach. The OBSP pamphlet report contains the trial and records Read's acquittal but does not disclose the appearance of the defence counsel whom the Post Office Solicitor briefed. Patrick Read, OBSP (Jan. 1793, #128), 199.
151 In December 1742, the King had Newcastle write to the chairman of Westminster Sessions, to convey royal interest in cleaning up the Covent Garden area. PRO, SP 44/82, Criminal Book, 17 December 1742, at p. 188. He wrote that
Covent Garden is infested with great Numbers of reputed Thieves, Pick-Pockets and other desperate Persons, who have formed themselves into Bodies, so that it is hazardous and dangerous for Persons of Quality to pass and repass to the Playhouses and other Parts thereabouts, without being assaulted and robbed. His Majesty, who is desirous to encourage the Suppressing of such wicked Disorders, has commanded me to acquaint you, that Orders shall be given to the Solicitor of the Treasury to defend, at his Majesty's Expense, all Constables, and other Peace Officers of the said City and Liberty in any vexatious actions, or Suits at Law, that may be brought against them, for what they shall do in the faithful Discharge of the Duty of their Offices, in putting in Execution the Warrants issued to them by the Justices of the Peace, for the purposes aforementioned.
Ibid. at 188–189. It was hoped “that the apprehension of Trouble and Expense on this Account may not discourage them from carrying on a Service so important to the Peace and Security of his Majesty's Subjects.” Ibid. at 189.
152 See the chronological table in David Philips, “ ‘Good Men to Associate and Bad Men to Conspire': Associations for the Prosecution of Felons in England 1760–1860”, [essay hereafter cited as Philips, “Associations”] in Douglas Hay & Francis Snyder (eds.) Policing and Prosecution in Britain 1750–1850 (1989), pp. 113, 161–166 [volume hereafter cited as Hay & Snyder].
153 Ibid. p. 120.
154 P.J.R. King, “Prosecution Associations and Their Impact in Eighteenth-Century Essex”, [essay hereafter cited as King, “Essex”] in Hay & Snyder, pp. 171, 173 n. 8.
155 Ibid. p. 180 (in the studied Essex sample “half of those formed before 1785 do not seem to have survived the century”).
156 Examples of the work of the London Society for Prosecuting Felons from the year 1795 are discussed in Langbein, “Criminal Trial”, pp. 127–129.
157 Nottingham County Record Office, DD.T. 25/1 (24 Oct. 1770).
158 Maghull Agreement for the Prosecution of Felons, dated 21 July 1699, extracted in Adrian Shubert, “Private Initiative in Law Enforcement: Associations for the Prosecution of Felons, 1744–1856”, in Bailey, Victor (ed.) Policing and Punishment in Nineteenth Century Britain (1981), pp. 25, 26Google Scholar (attributed to Lancashire Record Office, PR 2814/1) [essay hereafter cited as Shubert, “Initiative”].
Shubert describes a similar statement of purposes from the Bretherton Association in 1744. Its articles recite that “diverse burglaries and felonies have of late years been committed,” yet “prosecutions are not carried on against the offenders with so much vigour as ought to be on account of the great expense attending such prosecutions… .” Ibid. p. 26, citing Lancashire Record Office 2851/12/1. The result is that “persons from whom goods are stolen often acquiesce and do not endeavour to find out or prosecute offenders by reason of the great expense attending such prosecutions, by which means they go unpunished.” Ibid.
159 David Philips’ study of the period 1760–1860 is a particularly valuable survey. Philips, “Associations”, (n. 152 above). See also King, “Essex”, (n. 154 above); and Shubert, “Initiative”, (n. 158 above).
160 Rules and Orders of the Binbrook Association for the Prosecution of All Persons Who Shall be Guilty of Felonies, Thefts, Crimes, or Misdemeanours (Louth 1820) (printed handbill) (exemplar in Lincolnshire County Record Office, shelfmark 4 BM 5/5/2/2).
161 E.g., Rules and Orders of the Fakenham Association Against Horse-Stealers (Norwich 1782), at pp. 8–9 (Lewis/Walpole Library, Yale Univ., shelfmark 767So5) (providing that three months after the loss occurred the association would pay the value of the horse, to a ceiling of £20). The Nottingham association, discussed supra note 157, paid the owner half the value of the horse to a ceiling of £13, one year after the loss. Nottingham County Record Office, DD.T. 25/1, art. 5 (24 Oct. 1770).
162 Sometimes the association's articles provided general authority for reimbursement, for example, in “Rules of the Linton, Hildersham, Bartlow and Hadstock Association for the detection and prosecution of Felonies and Misdemeanours”, (20 Nov. 1818) art. 2: “All reasonable Expenses which may be incurred in apprehending and prosecuting Offenders against Subscribers to this Association, shall be paid out of the Common Stock… .” Cambridgeshire Record Office, L95/ 18/1. Other associations devised preset reimbursement schedules. The Binbrook Association (n. 160 above), art. IV, p. 4 (1820), promised to reimburse members four pence per mile “[f]or every prosecutor's and witness's horse-hire in going to any magistrate or court,” five shillings per day “[f]or every male witness's time, trouble, and expenses,” and four shillings per day “[f]or every female witness's time, trouble, and expenses… .”
163 For example, the articles of the Nottingham association, (n. 157 above) designated the solicitor Job Brough as the person to whom members should report a covered loss, ibid., art. 3, and directed him to invest any surplus funds “on Government Security”. Ibid., art. 6. When Brough died in 1795, the association's journal recorded that “Messrs. Pocklington and Company, Bankers in Newark” would replace him as treasurer; and that Edward Smith Godfrey and Benjamin Joseph Smith were “appointed Agents and Solicitors to the Association”. Ibid., entry for 1795.
164 Shubert reports that the articles of the Turton Association in Lancashire carefully spell out that the prosecutor was left “to take upon himself all the trouble of prosecuting and providing all the proper evidence … as if prosecuting at his own charge.” Shubert, “Initiative”, p. 32 (citing Lancashire Record Office, UDTu19). Philips dates the founding of the Turton Association to the year 1789. Philips, “Associations”, p. 163.
165 Binbrook Association (n. 160 above), art. 11, pp. 7–8 (1820).
166 Philips, “Associations”, pp. 136–137.
167 Olney, Turvey & Harrold Association, Bedfordshire Record Office, GA 1108 (solicitor's bills, loose pages, filed by date from 1799), entries for 1799, 1800, 1808.
168 John Styles, “Print and Policing: Crime Advertising in Eighteenth-Century Provincial England”, in Hay & Snyder, pp. 55, 64 [hereafter cited as Styles, “Advertising”].
169 Philips, “Associations”, p. 137. King reports that the Essex “attorney, William Mason, … acted as clerk to at least five prosecution associations in the north-east of Essex.” King, “Essex”, p. 192.
170 Anon., Seasonable Cautions for Juries, Solicitors and Witnesses; To Deterre from Man-Catching (London 1681)Google Scholar (Wing S 2222), p. 1r (exemplar in Huntington Library, Los Angeles, CA).
172 Ibid. The passage in text continues: “He may discourse with them, and enquire whether they have any thing to say to this or that point, in order to save the Court a trouble; but he ought not to work them by hope of reward, or fear of harm to say more, or less than they are inclined to… .” After framing the issue in this way, the writer devotes the remainder to sermonising about the evils of false witness.
173 Directions (n. 99 above), p. 4. He gives the example of overcharging as highway robbery what “was only a Quarrel between the Prosecutor and the Prisoner.” Ibid.
174 Letter to the Commissioners of the Treasury, note 57 above, p. 210.
175 OBSP (Sept. 1732, #53), 210.
176 4 & 5 Will. & Mar. ch. 8, §2 (1692).
177 OBSP (Sept. 1732, #53), 210.
178 Ibid. 211.
179 Ibid. The report identifies Grimes as alias John Graham.
183 Ibid. Grimes was involved in a yet another questionable prosecution in the September 1732 sessions, under his alias, as John Graham. In the case of Ann Foster, OBSP (Sept. 1732, #20), 180, who was accused of stealing a pocket book containing promissory notes, the prosecuting victim had advertised the lost items. He told the court that he had Foster arrested and prosecuted after John Graham came to him and told him that Foster had his pocket book. Foster was acquitted after presenting evidence that she found the items.
184 OBSP (Sept. 1732, #17), 178.
185 Ibid. 179.
186 Ibid. The judge ordered Wass sent to Newgate, where we lose trace of him.
187 Directions, p. 14.
188 George Stacey & Matthias Dennison, OBSP (Jan. 1741, ##24–25), 11, 12 (highway robbery).
189 Ibid. 13. The two defendants were convicted and sentenced to death. This case also evidences, ibid. 12–13, the earliest appearance in the Old Bailey Sessions Papers of Stephen Macdaniel (sometimes McDaniel), who would figure as the chief villain in 1754 in the great reward scandal discussed in Langbein, “Criminal Trial”, pp. 110–14. Macdaniel appeared as a crown witness, testifying against his former accomplices. As as in his later exploits, this was a case of highway robbery, for which legislation offered a £40 reward to those who prosecuted and convicted offenders. The reward system is discussed at pp. 356–360 below. Paley reports that in this case Parish, Macdaniel, and six others split £80 in reward money for convicting the two offenders. Ruth Paley, “Thief-takers in London in the Age of the McDaniel Gang, c. 1745–1754” [hereafter cited as Paley, “Thieftakers”], in Hay & Snyder, pp. 301, 319.
190 James English, OBSP (Jul. 1736, #13), 154.
191 CLRO, London Sessions Papers, September, 1733, document unnumbered [hereafter cited as 1733 Grand Jury Presentment]. The presentment was contemporaneously printed as a two-sided bill and is found bound with the September 1733 trial pamphlet in some collections of the Old Bailey Sessions Papers, for example, that of the University of Chicago Law Library, cited in Langbein, “Criminal Trial”, p. 109 n. 441.
192 The Presentment says that “Divers Persons, Clerks or Servants to many of his Majesty's Justices of the Peace within this City, do under Color and in the Execution of their Office Exact and Take from all Persons accused and others bound to Prosecute Several Sums of Money under Pretence for Warrants, Commitments, Recognizances, Discharges and other Matters Incident to the Duty and Office of a Justice of Peace, contrary to the known Laws of this Realm, In Violation of public Justice and to the great oppression of his Majesty's Subjects.” 1733 Grand Jury Presentment, note 191 above, at 1r.
A 1738 Old Bailey case illustrates the kind of thing the Grand Jury was complaining about five years earlier. In the prosecution of Joseph Golding, OBSP (Apr. 1738, #22), 66, for highway robbery, a witness told of having gone to Justice Farmer's to give an information. Farmer's clerk, Warrener, refused to take it without being paid a Guinea. “The Court expressed their Resentment of Mr. Warrener's behaviour; and declared it to be the duty of all who serve as Clerks under Gentlemen in the Commission of the Peace, to be always ready to execute their Office without Exaction.” Ibid. 67.
On the tension between the clerk's magisterial and private practice, see pp. 339–340 above.
193 1733 Grand Jury Presentment, note 191 above, at 1r.
194 When confronted with an accusation of felony, the magistrate acting at pretrial “had only two options… . He could jail the accused or bail him. He could not discharge him.” Langbein, Prosecuting Crime, p. 7; see ibid. p. 124 n. 72, citing Dalton, (n. 14 above) p. 262, the authoritative justicing manual that articulates the point in the first edition in 1618 and carries it forward for decades in subsequent editions. Beattie traces the point into other earlyeighteenth-century practice manuals. Beattie, Crime, at p. 272 & n. 13. By Blackstone's day the magistrates were able to dismiss if they found an accusation “wholly groundless.” Beattie, Crime, pp. 280–281, citing Blackstone, William, Commentaries on the Laws of England (1769) vol. 4, p. 293Google Scholar.
195 Paley, “Thieftakers”, p. 312. Paley has traced the activities of several gangs of London thieftakers active in the 1740s and 1750s, showing that they took advantage of the ease of charging to institute malicious prosecutions. Ibid. pp. 312–313 and n. 39.
196 He would “step to a Justice of the Peace, and having given some formal Account of a Robbery, sometime or other committed, he generally procured a Warrant, which he carried along with him, till he had an Opportunity of securing … [his victims, unless they paid him off. Otherwise,] they were certainly charged in Custody, and sent to Prison on suspicion till he could (as he often pretended) find an Adversary to prosecute them.” Anon., The Life of Tho[mas] Neaves, the Noted Street-Robber (London, n.d., c. 1729) p. 26Google Scholar, discussed in Langbein, “Criminal Trial”, pp. 109–110.
Trumped up cases of sodomy were feared for their reputational damage. E.g., Anon., A Full and Genuine Narrative of the Conspiracy Carried on by Cather, Cane, Alexander, Nixon, Paterson, Falconer, Smith, Which Last Was Executed at Tybourn with McLeane, against the Hon. Edward Walpole, Esq., Charging Him with the Detestable Crime of Sodomy, in Order to Extort a Large Sum of Money from Him, Together with an Account of Their Remarkable Trial and Conviction before the Rt. Hon. the Lord Chief Justice Lee, in the Court of King's Bench, Westminster, July 5th, 1751. (London, 2nd ed. ) (Beinecke Library, Yale Univ., shelfmark British Tracts 1751 F 95). Two such cases that came before Lord Mansfield in the 1770s—R. v. Foote (1776) (unreported), and R. v. Donnally, 1 Leach 193, 188 Eng. Rep. 199 (1779)—are discussed in Oldham, James, “Truth-Telling in the Eighteenth-Century English Courtroom” (1994) 12 Law & History Rev. 95, 107–108CrossRefGoogle Scholar. Mansfield brooded in Donnally that such cases were “a specious mode of robbery of late grown very common… .” Oldham, p. 108, citing Oldham, , Mansfield Manuscripts, vol. 2, p. 929Google Scholar.
Evidence of a solicitor's involvement in a trumped up sodomy case appears in the Old Bailey prosecution of George Sealey & Thomas Freeman, OBSP (Sept. 1736, ##78–79), 188. Freeman testified that the prosecutor “got acquainted with one Cuttings, a Solicitor in the Old Bailey, and they 2 gave … Directions to draw the Bill for Sodomy against me.” Ibid. 190.
197 The September 1733 Gentleman's Magazine reported that, in addition to the presentment discussed in text, “the Grand Jury presented 4 noted Solicitors for infamous Practices, in fomenting and carrying on Prosecutions against innocent Persons for the sake of Rewards, &c, whereupon the Court returned Thanks to the Grand Jury and assured them that the Offenders should be rigorously prosecuted.” 3 Gentleman's Magazine 493 (Sept. 1733). In a forthcoming book, John Beattie traces this report in the London records and identifies the four solicitors. Beattie, Urban Crime, chapter 9.
198 1733 Grand Jury Presentment, note 191 above, at 1v. This response echoes the 1729 legislation for requiring the enrolment of solicitors, above at note 34.
199 Holloway, Robert, The Rat-Trap, Dedicated to the Right Hon. Lord Mansfield, Chief Justice of England; Addressed to Sir John Fielding, Knight (London 1773)Google Scholar (Lincoln's Inn shelfmark Law Pamphlets 29, no. 5).
200 Ibid. pp. 15–16n. He continues: because “there is a good understanding kept up between the amiable trio, justice, solicitor, and thief-catcher, it is almost impossible to determine in many cases which ought to receive the reputation of hanging the innocent or screening the guilty.” Ibid. p. 16n.
203 MacCray was the leader of a gang of London criminals who figured in a number of Old Bailey cases in the period around 1735, and who are being studied in current research by Heather Shore.
204 OBSP (Jul. 1735, #22), 89.
205 Ibid. 90.
207 Ibid. 91, citing Julian Brown, OBSP (Sept. 1731, #7), 11. Months after he testified as a witness for MacCray, Brown was prosecuted and acquitted of the rape of an eleven-year-old girl. Julian Brown, OBSP (Oct. 1735, #35), 161.
208 Wreathock “had managed the whole scene of perjury, by which MacCray came off in Middlesex, and a very bold attempt of the same nature, by which it was endeavoured to get him acquitted likewise in Surrey, though that miscarried”. Anon., Memoirs of the Life and Times of Sir Thomas DeVeil, Knight (London 1748) p. 38Google Scholar [hereafter cited as DeVeil, Memoirs]. I owe the reference to this passage to Heather Shore, who is currently researching certain of the London criminal gangs active in the mid-1730s, including the MacCray–Wreathock group. Regarding DeVeil and this pamphlet biography, see Langbein, “Criminal Trial”, pp. 59–60.
209 The case, which arose on a bill in the equity side of the court of Exchequer, is unreported. The archive sources are discussed and extracted in Note, “The Highwayman's Case (Everet v. Williams)” (1893) 9 Law Q. Rev. 197–199.
210 William Wreathock et al., OBSP (Dec. 1735, ##67–71), 18.
211 Birks, (n. 33 above), pp. 135, 149; Holdsworth, HEL, vol. 12 p. 59.
212 DeVeil, Memoirs, pp. 34–35.
213 Margaret & Hester Hobbs, OBSP (Dec. 1734, #29), 16 (privately stealing from the person). The prosecution was brought by Thomas Gray, identified by the alias MacCreagh, that is, MacCray. He claimed the two women stole some money from him. Their defense was that the case was a grudge prosecution, deliberately orchestrated by the gang. The jury acquitted.
214 Anon, Some Observations on the Trial of Mr. Thomas Carr, Who Was Executed at Tyburn, January 18, 1737 (London 1737)Google Scholar (Lincoln's Inn shelfmark Trials 101, no. 1.).
215 Ibid. p. 6. The case is reported as Thomas Car [sic] & Elizabeth Adams, OBSP (Oct. 1737, ##4–5), 204. The jurors seem also to have been irritated at defence counsel's aggressive questioning of a prosecution witness. They are said to have requested that the trial judge “would please to ask the Questions that are proper, and that the [witness] may not be interrupted.” Ibid. p. 206.
216 DeVeil, Memoirs, p. 35.
217 Beattie, Crime, pp. 50–59; Paley, “Thieftakers” (n. 189 above); Radzinowicz, , History, vol. 2 pp. 57–137Google Scholar, 326–346; Langbein, “Criminal Trial”, pp. 106–114.
218 4 & 5 Will. & Mar., c. 8, §2 (1692). Some of the statutes offered, in addition to or in place of cash rewards, so-called ‘Tyburn tickets', negotiable certificates of immunity from parish and ward offices that traded freely in the aftermarket. See Radzinowicz, , History, vol. 2, pp. 155–161Google Scholar.
219 Compiled in Colquhoun, Patrick, A Treatise on the Police of the Metropolis (7th ed. London 1806), pp. 390–392Google Scholar (1st ed. London 1795). Modern accounts appear in Beattie, Crime, pp. 50–59; Radzinowicz, , History, vol. 2, pp. 57–60Google Scholar; Langbein, “Criminal Trial”, pp. 106–114.
220 Paley, “Thieftakers”, pp. 317–318; Langbein, “Criminal Trial”, pp. 107–108.
221 Beattie, Crime, pp. 52–53. Radzinowicz traced these proclamations well back into the seventeenth century and concluded that they inspired the later statutory system. Radzinowicz, , History, vol. 2, pp. 84–88Google Scholar.
222 Paley, “Thieftakers”, p. 324. The sense that £140 was the going rate in London rather than the basic statutory reward of £40 appears in the statement at trial of one of the defendants, William Booth, in a highway robbery case prosecuted in 1733. Denouncing the accomplice witness appearing against him, Booth says, “I set down a Candle by him at the King's Arms, and it happened to burn his Wig, upon which he swore that Job should fetch him £140.” John Ackers et al., OBSP (Jan. 1733, ##34–36), 44, 45. Beattie believes that royal proclamations offering the supplementary £100 for offences committed within five miles of London were continuously in force for highway robbery and burglary in London from 1720 until 1744, and frequently thereafter until 1750. Beattie, Urban Crime, Ch. 9 (forthcoming).
223 Phelps Brown, E.H. & Hopkins, Sheila V., “Seven Centuries of Building Wages”, in Carus-Wilson, E.M., (ed.) Essays in Economic History (1962), vol. 2, pp. 168Google Scholar, 177 (table 1).
224 See Radzinowicz, History, vol. 2 pp. 98–137. On the activity of the associations in advertising rewards, see Styles, “Advertising” (n. 168 above), pp. 60–62. Owners of stolen goods also advertised rewards for the return of the goods and the apprehension and conviction of the culprits. The so-called Jonathan Wild Act, 3 Geo. I, c. 11 (1717) threatened heavy fines for offering no-questions-asked payments for the return of stolen goods.
225 See the tabulation in Radzinowicz, , History, vol. 2, p. 339Google Scholar (instances in the years 1738–54); for nineteenth-century cases, see ibid. pp. 340–341.
226 Bennet's Act, 58 Geo. III, c. 70, §1 (1818), discussed in Radzinowicz, , History, vol. 2, pp. 74–82Google Scholar; see also Beattie, Crime, pp. 58–59.
227 Letter to the Commissioners of the Treasury, note 57 above, at p. 209.
228 Paley, “Thieftakers”, p. 304.
229 Ibid. p. 323.
230 John Waller, OBSP (May 1732, #89), 146–148.
231 Edward Dalton et al., OBSP (Sept. 1732, ##86–88), 219, 221.
232 (London 1732) (British Library, shelfmark 518.3.20).
233 John Waller, OBSP (May 1732, #89), 146, 148.
234 E.g., Joshua Kidden, OBSP (Jan, 1754, #129), 71, discussed in Langbein, “Criminal Trial”, p. 110.
235 Paley, “Thieftakers”, p. 328.
236 Mary & Ann Haycock, OBSP (Jul. 1734, ##19–20), 149.
237 OBSP (Feb. 1736, #50), 78.
238 Ibid. Regarding the partial verdict system, see Langbein, “Criminal Trial”, pp. 41–43, 52–55.
239 Following are a pair of examples from 1743–44:
Counsel for Patrick Kelly et al., OBSP (Feb. 1743, ##116–119), 70, prosecuted for coining, asked a witness, “Do you expect part of the Reward?” Ibid., p. 72. The jury convicted but recommended mercy “[a]s the principal witnesses … were Persons of ill Characters… .” Ibid. at 74. (The jury thus directed its doubts about the reliability of the evidence towards sanction rather than culpability. Juries were not instructed on the beyond-reasonable-doubt standard of proof until the end of the eighteenth century. See Langbein, “Privilege”, pp. 1056–57.)
Counsel for Samuel Goodman, OBSP (Dec. 1744, #69), 34, charged with highway robbery, cross-examined both the prosecutrix and her husband about prosecuting him “for the sake of the great reward… .” Ibid. pp. 35, 36. Both denied it. The jury convicted and Goodman was sentenced to death. (As an indicator of how primitive the law of evidence was at this time, notice that counsel is not reported voicing any objection when the husband testified that at the pretrial committal hearing the examining magistrate recognised the defendant and said to him, “Oh, my old Friend, where have you been all this while; what, ain't you hanged yet?” Ibid. p. 36.)
240 In the years 1783–1789 the OBSP contain a number of particularly detailed trial reports. More cases were reported, and the volumes run considerably longer than before or later. These differences were associated with a change of reportership, to Edmund Hodgson. In 1790, however, with Hodgson still as reporter, there was a dramatic reduction in the number of pages per volume, achieved in part by publishing only trials that resulted in convictions. This policy was abandoned in 1793, when Hodgson was replaced as reporter.
241 On whom, see Beattie, “Scales”, at pp. 236–247.
242 E.g., James Wingrove, OBSP (May 1784, #637), 818, 821 (acquittal); William Horton, OBSP (Jul. 1784, #735), 970, 971 (acquittal); Robert Mitchell, OBSP (Dec. 1784, #190), 196, 197 (acquittal; Garrow cross-examined the prosecutor about the number of times he had previously prosecuted robberies supposedly done to his person); John M'Carty & Thomas Hartman, OBSP (Dec. 1787, #28), 45–47 (convicted of simple theft and transported); William Eversall et al., OBSP (May 1788, #333), 436, 437 (acquittal); John Wood, et al., OBSP (May 1788, #374), 477 (convicted; jury recommended mercy); Thomas Gibbs, OBSP (Dec. 1788, #44), 28–29 (acquittal); Thomas Jones, OBSP (Dec. 1788, #76), 48, 49 (acquittal).
243 Patrick Colquhoun, note 219 above, at p. 222 (London, 1796 ed.), cited by Beattie, Crime, p. 374.
244 7 & 8 Will. 3, ch. 3 (1696), discussed at p. 317 above.
245 Hawkins, vol. 2, 402.
246 Edward Arnold, 16 St. Tr. 695 (Surrey Assizes, 1724), discussed at p. 330 above.
247 16 St. Tr. 758.
248 Robert Andrews, OBSP (Dec. 1738, #16), 9, 11.
249 17 St. Tr. 1003 (1741), discussed in another aspect, note 76 above. I directed attention to the passage extracted below, in text at note 252, in Langbein, “Lawyers”, pp. 313–314.
250 Michael Foster, then sitting as Recorder of Bristol, later (1746–1763) a King's Bench judge and author of the work commonly known as Foster's Crown Law, which was the first important book on English criminal law written after Hawkins. Foster, Michael, A Report of Some Proceedings on the Commission of Oyer and Terminer and Gaol Delivery for the Trial of the Rebels in the Year 1746 in the County of Surr[e]y, and Other Crown Cases; To Which Are Added Discourses upon a Few Branches of the Crown Law (Oxford 1762)Google Scholar.
251 17 St. Tr. 1022.
253 Manuscript bound with the Harvard Law Library's exemplar of the Old Bailey Sessions Papers for January 1756, following the case of William Bartlett, OBSP (Jan. 1756, #151), 247. The quoted language appears at 1v, emphasis original.
254 William Davis, OBSP (Dec. 1771, #40), 16, 25.
255 Counsel said that “he knew by the Course of the Court at the Old Bailey, he was not at Liberty to observe upon the Prosecutor's Evidence,” but he was allowed to open (that is, introduce) the defence case “without making any Observations upon it.” James Annesly & Joseph Redding, OBSP (July 1742) (supplementary pamphlet), 19 (murder). The case also appears at 17 St. Tr. 1093, 1113 (Old Bailey 1742).
256 Second Report from His Majesty's Commissioners on Criminal Law (1836) 10n (discussing circuit differences in the practice of previewing the prosecution evidence for the judge and jury in an opening statement).
257 I have described the practice in the 1750s in Langbein, “Criminal Trial”, pp. 84–103. Writing about “Street Robberies” in 1751, Henry Fielding reported: “The Method of discovering these is generally by means of one of the Gang, who being taken up, perhaps for some other Offence, and, thinking himself in Danger of Punishment, chooses to make his Peace at the Expense of his Companions.” Fielding, Enquiry, p. 158.
258 The earliest unambiguous cases in the Old Bailey reports arise in the December 1744 sessions: James Leekey, William Robinson, & Elizabeth Cane, OBSP (Dec. 1744, ##7–9), 5 (burglary; receiving stolen property); John & Edward Hill, OBSP (Dec. 1744, ##26–27), 9 (highway robbery); James Ruggles et al., OBSP (Dec. 1744, ##93–95), 48, 49 (highway robbery).
259 For example, in the February 1733 sessions there were four. Joseph Fretwell, OBSP (Feb. 1733, #32) 61 (highway robbery); William West & Andrew Curd, OBSP (Feb. 1733, ##38–39), 67–69 (burglary); Leonard Budley & William Harris, OBSP (Feb. 1733, ##51–52), 69–71 (highway robbery); William Norman, OBSP (Feb. 1733, #58), 71 (burglary).
260 The defendants in one of the three early corroboration-rule cases, John & Edward Hill, OBSP (Dec. 1744, ##26–27), 9 (highway robbery), cited note 258 above, are shown as being represented by counsel in that sessions when tried on another indictment. John & Edward Hill, OBSP (Dec. 1744, ##24–25), 8–9 (highway robbery).
Henry Fielding chafed at the corroboration rule, a recent innovation in his day that restrained his investigative and prosecutorial work as court J.P. for Middlesex. Fielding, Enquiry, pp. 158–163.
261 William Warner & John Newman, OBSP (Dec. 1741, ##5–6), 3 (highway robbery).
262 Ibid. p. 4.