Published online by Cambridge University Press: 18 August 2010
In his inaugural lecture as Downing Professor of the Laws of England at the University of Cambridge, delivered in October 1888, Frederic Maitland offered a set of provocative and now familiar reflections on “Why the history of English law is not written.” According to Maitland, although English archives possessed “a series of records which for continuity, catholicity, minute detail[,] and authoritative value” had “no equal…in the world,” the “unmanageable bulk” of these sources had “overburdened” aspiring historians of English law. As a result, “large provinces” of English legal history remained to be “reclaimed from the waste.” With few willing to undertake such reclamation efforts, the historiography of English law remained as bleak and barren as the bogs from which Maitland's Cambridgeshire had itself only reluctantly emerged.
1. Maitland, F. W., Why the History of English Law Is Not Written: An Inaugural Lecture Delivered in the Arts School at Cambridge on 13th October, 1888 (London: C. J. Clay & Sons, 1888)Google Scholar. Maitland's original theme has spawned several variations. See, for example, Baker, J. H., “Why the History of English Law Has Not Been Finished,” Cambridge Law Journal 59 (2000): 62–84CrossRefGoogle Scholar and Kercher, Bruce, “Why the History of Australian Law Is Not English,” October 2000Google Scholar, <http://www.law.mq.edu.au/html/staff/kercher/Castles.htm> (20 December 2006). Biographical studies of Maitland include Elton, G. R., F. W. Maitland (New Haven: Yale University Press, 1985)Google Scholar; Fisher, H. A. L., Frederic William Maitland, Downing Professor of the Laws of England: A Biographical Sketch (Cambridge: University Press, 1910)Google Scholar; and S. F. C. Milsom, “Maitland, Frederic William (1850–1906),” Oxford Dictionary of National Biography [hereinafter ODNB], <http://www.oxforddnb.com/view/article/34837> (20 December 2006).
4. On fenland reclamation in England, see Darby, H. C., The Changing Fenland (Cambridge: Cambridge University Press, 1983)Google Scholar. As S. F. C. Milsom has noted, the bleak tone of Maitland's lecture coincided with his initial experience with a bout of diabetes-related illness. See Milsom, “Maitland,” ODNB.
5. And much remains to be done. See Baker, “Why the History of English Law Has Not Been Finished.”
6. Among professional organizations, the Selden Society (<http://www.law.harvard.edu/ programs/selden_society/pub.html#av>) and the Ames Foundation (<http://www.law.harvard. edu/programs/ames_foundation/main.html>) have played particularly prominent editorial roles. Among scholars, Sir John Baker, the current holder of the Downing professorship at Cambridge, deserves special mention for cataloging archival holdings and publicizing migrations and accessions of legal-historical manuscripts. See, for example, Baker's Catalogue of the Manuscript Year Books, Readings, and Law Reports in the Library of the Harvard Law School (Zug, Switzerland: Inter Documentation Co., 1975) and his periodic updates on migrations and accessions in The Journal of Legal History. Archival research in the area of English history has been eased by the creation of online finding aids (such as Access to Archives, <http://www.a2a.org.uk/>), as well as by a generally permissive approach to the use of digital photography by researchers (see National Archives, Self Service Photography of Records: Policy, November 2006, <http://www.nationalarchives.gov.uk/documents/photopolicy.pdf> [20 December 2006]).
7. For a discussion of these sources, see below Part IV(A). Some sense of the magnitude of this recent publishing revolution can be gained by comparing Maitland's analogous dream: to make copies, from the original parchment records (or “plea rolls”), of England's earliest recorded legal cases. “[T]hink of the tons of unprinted plea rolls. It is impossible to print them all; but think what ten men might do in ten years, by selecting, copying, indexing, [and] digesting; the gain would be enormous, not merely for the history of English law, but for the history of law in general.” Maitland, , Why the History of English Law Is Not Written, 7Google Scholar. By comparison, the Ames Foundation, through the leadership and labors of Professor David Seipp, has committed itself “to creat[ing] a free, publicly-searchable database containing an index and paraphrase of all printed Year Book reports (cases argued and determined in English law courts between 1268 and 1535).” The database now contains more than 22,000 individual reports. See An Index and Paraphrase of Printed Year Book Reports, 1268–1535, compiled by David Seipp, <http://www.bu.edu/law/faculty/scholarship/yearbooks/> (20 December 2006).
8. As Maitland correctly observed, Cambridge and Oxford traditionally taught Roman law (and, before the Reformation, canon law) to their undergraduate students. Why the History of English Law Is Not Written, 10. Now, both universities not only feature an undergraduate legal curriculum dominated by English law, but also offer courses in English legal history specifically. See University of Cambridge, Faculty of Law, Courses, Legal History, <http:// www.law.cam.ac.uk/courses/view_subject.php?course=1&tripos=1&subjects=1&subject=3 2&resource=14> (20 December 2006) and Oxford University, Student Handbook (Under-graduate Students) 2005–06, <http://denning.law.ox.ac.uk/undergraduate/index.shtml> (20 December 2006). For their part, several American law schools (including Georgetown, The George Washington University, the University of Illinois, and Yale) offer courses in English legal history. English legal history will also feature prominently in a forthcoming case book designed for North American law students. See Langbein, John H., Lerner, Renée Lettow, and Smith, Bruce P., History of the Common Law: The Development of Anglo-American Legal Institutions (Aspen Publishing Co., forthcoming)Google Scholar.
9. And, it should be noted, exceptionally committed ones. On July 7, 2005, most of the legal historians who attended the morning sessions at the Seventeenth British Legal History Conference, held at University College London, dutifully sat through the presentations despite news of terrorist bombings at nearby King's Cross station and Tavistock Square earlier that day. See “London Rocked by Terror Attacks,” BBC News, 7 July 2005Google Scholar, <http://news. bbc.co.uk/1/hi/uk/4659093.stm> (20 December 2006).
10. Academic presses have devoted considerable attention to the history of English criminal justice administration from the seventeenth through the nineteenth century. For example, two of the six current titles in the Oxford Studies in Modern Legal History series address the subject. See Langbein, John H., The Origins of Adversary Criminal Trial (Oxford: Oxford University Press, 2003)Google Scholar and Cairns, David J. A., Advocacy and the Making of the Adversarial Criminal Trial, 1800–1865 (Oxford: Clarendon Press, 1998)Google Scholar. For its part, the Ohio State University Press's series on the History of Crime and Criminal Justice includes a pair of important studies of policing in London in the eighteenth and nineteenth centuries. See Harris, Andrew T., Policing the City: Crime and Legal Authority in London, 1780–1840 (Columbus: Ohio State University Press, 2004)Google Scholar and Miller, Wilbur R., Cops and Bobbies: Police Authority in New York and London, 1830–1870, 2d ed. (Columbus: Ohio State University Press, 1999)Google Scholar. As surveyed in Part III below, major articles on the history of English criminal justice in the period from 1650 to 1850 have appeared in leading journals such as Law and History Review, Past & Present, and the Yale Law Journal.
11. Although the precise chronological boundaries of the “long eighteenth century” remain unfixed, this essay employs an expansive definition that encompasses the period from roughly 1650 to 1850. For coterminous usage, see, for example, the journal 1650–1850: Ideas, Aesthetics, and Inquiries in the Early Modern Era, http://www.amspressinc.com/16501850. html. For an example of a more restrictive approach, see O'Gorman, Frank, The Long Eighteenth Century: British Political and Social History, 1688–1832 (Oxford: Oxford University Press, 1998Google Scholar). The essay occasionally strays from its chronological borders, as several of the publications surveyed address developments before 1650 or after 1850.
12. See Innes, Joanna and Styles, John, “The Crime Wave: Recent Writing on Crime and Criminal Justice in Eighteenth-Century England,” Journal of British Studies 25 (1986): 380–435CrossRefGoogle Scholar(reprinted in Rethinking Social History: English Society 1570–1920 and Its Interpretation, ed. Wilson, Adrian [Manchester: Manchester University Press, 1993], 201–65)Google Scholar; Emsley, Clive, “Filling In, Adding Up, Moving On: Criminal Justice History in Contemporary Britain,” Crime, Histoire et Sociétés/Crime, History and Societies 9. 1 (2005): 117–38CrossRefGoogle Scholar; and King, Peter, “Locating Histories of Crime: A Bibliographical Study,” British Journal of Criminology 39 (1999): 161–74CrossRefGoogle Scholar.
13. See, for example, Emsley, Clive, Crime and Society in England, 1750–1900, 3d ed. (Harlow: Longman, 2004)Google Scholar; Godfrey, Barry S. and Lawrence, Paul, Crime and Justice, 1750–1950 (Cullompton, U.K.: Willan, 2005)Google Scholar; Sharpe, J. A., Crime in Early Modern England, 1550–1750, 2d ed. (Harlow: Longman, 1999)Google Scholar; Rawlings, Philip, Crime and Power: A History of Criminal Justice, 1688–1998 (Harlow: Longman, 1999)Google Scholar; Bentley, David, English Criminal Justice in the Nineteenth Century (London: Hambledon, 1998)Google Scholar; Taylor, David, Crime, Policing and Punishment in England, 1750–1914 (Basingstoke: Macmillan, 1998)CrossRefGoogle Scholar; and Briggs, John et al., Crime and Punishment in England: An Introductory History (London: UCL Press, 1996)CrossRefGoogle Scholar.
14. See, for example, Gallanis, T. P., “Review Notice: The Old Bailey Proceedings Online,” Journal of Legal History 26 (2005): 91–93CrossRefGoogle Scholar and “Legal History with 21st-Century Tools: The English Reports on CD-ROM and Bracton on the Web,” Journal of Legal History 20 (1999): 109–14CrossRefGoogle Scholar.
15. Beattie, J. M., Crime and the Courts in England 1660–1800 (Princeton: Princeton University Press, 1986)Google Scholar; Innes and Styles, “Crime Wave.”
16. See below Part II(A).
17. See below Part II(B).
18. See below Part II(C).
19. Kamisar, Yale et al., Modern Criminal Procedure: Cases, Comments and Questions, 9th ed. (St. Paul, Minn.: West, 1999), 1Google Scholar.
20. On the importance of considering criminal procedure alongside the substantive criminal law, see Stuntz, William J., “The Uneasy Relationship between Criminal Procedure and Criminal Justice,” Yale Law Journal 107 (1997): 1–76CrossRefGoogle Scholar(noting the tendency of American law to treat these subjects separately and identifying the methodological weaknesses of this approach) and Mike McConville and Geoffrey Wilson, Preface to The Handbook of The Criminal Justice Process, ed. McConville, Mike and Wilson, Geoffrey (Oxford: Oxford University Press, 2002): vGoogle Scholar(“[W]e recognize that even to draw a line between process and the substantive law is somewhat arbitrary if one is trying to understand the ways in which the process is intended to work and works in practice”).
22. Both Wiener and McKenzie, for example, have recently emphasized the relationship between criminal justice administration and contemporary attitudes to masculinity. See Wiener, Martin J., Men of Blood: Violence, Manliness and Criminal Justice in Victorian England (Cambridge: Cambridge University Press, 2004)CrossRefGoogle Scholar and McKenzie, Andrea, “‘This Death Some Strong and Stout Hearted Man Doth Choose’: The Practice of Peine Forte et Dure in Seventeenth- and Eighteenth-Century England,” Law and History Review 23 (2005): 279–313CrossRefGoogle Scholar. Among his varied writings, King has identified connections between criminal procedure and both gender and youth. See, for example, King, Peter, “Gender, Crime and Justice in Late Eighteenth- and Early Nineteenth-Century England,” in Gender and Crime in Modern Europe, ed. Arnot, Margaret L. and Usborne, Cornelie (London: UCL Press, 1999), 44–74Google Scholar and “The Rise of Juvenile Delinquency in England,” Past & Present 160 (1998): 116–66Google Scholar.
23. Representative treatments include Foyster, Elizabeth, Marital Violence: An English Family History, 1660–1857 (Cambridge: Cambridge University Press, 2005)CrossRefGoogle Scholar; Watson, Katherine, Poisoned Lives: English Poisoners and Their Victims (London: Hambledon & London, 2004)Google Scholar; Jackson, Louise A., Child Sexual Abuse in Victorian England (London: Routledge, 2000)Google Scholar; Henderson, Tony, Disorderly Women in Eighteenth-Century London: Prostitution and Control in the Metropolis, 1730–1830 (London: Longman, 1999)Google Scholar; and Robb, George, White-Collar Crime in Modern England: Financial Fraud and Business Morality, 1845–1929 (Cambridge: Cambridge University Press, 1992)CrossRefGoogle Scholar.
24. See, for example, Sharpe, James, Dick Turpin: The Myth of the English Highwayman (London: Profile Books, 2004)Google Scholar; Warner, Jessica, John the Painter: Terrorist of the American Revolution (New York: Thunder's Mouth Press, 2004)Google Scholar; and Bondeson, Jan, The London Monster: A Sanguinary Tale (Philadelphia: University of Pennsylvania Press, 2001)Google Scholar.
25. For a pair of recent micro-historical reconstructions, see Brewer, John, A Sentimental Murder: Love and Madness in the Eighteenth Century (New York: Farrar, Straus and Giroux, 2004Google Scholar) and Monod, Paul Kléber, The Murder of Mr. Grebell: Madness and Civility in an English Town (New Haven: Yale University Press, 2003)CrossRefGoogle Scholar.
26. See, for example, Hay, Douglas, “War, Dearth and Theft in the Eighteenth Century: The Record of the English Courts,” Past & Present 95 (1982): 117–60CrossRefGoogle Scholar and Sindall, Rob, “Middle-Class Crime in Nineteenth-Century England,” Criminal Justice History 4 (1983): 23–40Google Scholar.
27. See, for example, Wiener, Men of Blood; Zedner, Lucia, Women, Crime and Custody in Victorian England (Oxford: Clarendon Press, 1991)Google Scholar; Women, Crime and the Courts in Early Modern England, ed. Kermode, Jenny and Walker, Garthine (London: UCL Press, 1994)Google Scholar; King, “Gender, Crime and Justice”; and MacKay, Lynn, “Why They Stole: Women in the Old Bailey, 1779–1789,” Journal of Social History 32 (1999): 623–39CrossRefGoogle ScholarPubMed.
28. King, for example, has used evidence of dialect in contemporary accounts of trials at London's Old Bailey to assess the treatment of Irish defendants. For a brief description, see Poole, Steve, Conference Report, “Tales from the Old Bailey: Writing a New History from Below,” History Workshop Journal 59 (2005): 282–84CrossRefGoogle Scholar.
29. On youthful offenders, see, for example, King, “Rise of Juvenile Delinquency”; King, Peter and Noel, Joan, “The Origins of ‘The Problem of Juvenile Delinquency’: The Growth of Juvenile Prosecutions in London in the Late Eighteenth and Early Nineteenth Centuries,” Criminal Justice History 14 (1993): 17–41Google Scholar; and Shore, Heather, Artful Dodgers: Youth and Crime in Early 19th-Century London (Woodbridge, UK: Boydell Press, 1999)Google Scholar. On the relationship between criminality and aging, see King, Peter, “Female Offenders, Work and Lifecycle Change in Late Eighteenth-Century London,” Continuity and Change 11 (1996): 61–90CrossRefGoogle Scholar.
30. On Wales, see Jones, David J. V., Crime in Nineteenth-Century Wales (Cardiff: University of Wales Press, 1992)Google Scholar; on Scotland, see Farmer, Lindsay, Criminal Law, Tradition and Legal Order: Crime and the Genius of Scots Law, 1747 to the Present (Cambridge: Cambridge University Press, 1997)Google Scholar; and on Ireland, see Criminal Justice History: Themes and Controversies from Pre-Independence Ireland, ed. O'Donnell, Ian and McAuley, Finbarr (Dublin: Four Courts Press, 2003)Google Scholar.
31. See, for example, the materials relating to the Court of Great Sessions of Wales from 1730 to 1830 compiled by the National Library of Wales, <http://www.llgc.org.uk/sesiwn_fawr/ index_s.htm>.
32. For a particularly impressive achievement in this regard, see Masters, Servants, and Magistrates in Britain and the Empire, 1562–1955, ed. Hay, Douglas and Craven, Paul (Chapel Hill: University of North Carolina Press, 2004)Google Scholar. For a discussion of the ambitious methodology of this project, see Smith, Bruce P., Review Essay, “Imperial Borrowing: The Law of Master and Servant,” Comparative Labor Law & Policy Journal 25 (2004): 447–62Google Scholar. Although developments in criminal justice administration in London frequently spurred legal change elsewhere, important innovations occasionally occurred outside the metropolis and, sometimes, outside of England altogether. For a discussion of initiatives at the local level, see King, Peter, Crime and Law in England, 1750–1840: Remaking Justice from the Margins (Cambridge: Cambridge University Press, 2006)CrossRefGoogle Scholar. Suggestively, the first British experiment with a professionalized magistracy occurred in Ireland, not England. See Palmer, Stanley H., Police and Protest in England and Ireland, 1780–1850 (Cambridge: Cambridge University Press, 1988)Google Scholar and Philips, David, “‘A New Engine of Power and Authority’: The Institutionalization of Law-Enforcement in England 1780–1830,” in Crime and the Law: The Social History of Crime in Western Europe since 1500, ed. Gatrell, V. A. C., Lenman, Bruce, and Parker, Geoffrey (London: Europa, 1980), 155–89Google Scholar.
33. Such, at least, was the view of one anonymous reviewer of this essay, who urged that the study encompass the late nineteenth century as well.
35. Wiener, Martin J., Reconstructing the Criminal: Culture, Law, and Policy in England, 1830–1914 (Cambridge: Cambridge University Press, 1990)Google Scholar.
38. For a sophisticated exploration of several of these notions, see King, Crime and Law in England. King's important book appeared after this essay was substantially complete and, accordingly, has not been reviewed extensively here. King graciously shared with me portions of the unpublished manuscript, including his future Chapter 1, which he presented at a workshop at the University of Illinois College of Law in October 2005.
39. See, for example, Peters, Edward, Inquisition (Berkeley: University of California Press, 1989)Google Scholar.
40. See, for example, MacLachlan, Colin M., Criminal Justice in Eighteenth Century Mexico: A Study of the Tribunal of the Acordada (Berkeley: University of California Press, 1975)Google Scholar.
41. See, for example, Hett, Benjamin Carter, Death in the Tiergarten: Murder and Criminal Justice in the Kaiser's Berlin (Cambridge, Mass.: Harvard University Press, 2004)Google Scholar.
42. See, for example, Robertson, Stephen, Crimes against Children: Sexual Violence and Legal Culture in New York City, 1880–1960 (Chapel Hill: University of North Carolina Press, 2005)Google Scholar.
43. The enduring relevance of these developments to contemporary practice forms a powerful theme in the works of both Sir Leon Radzinowicz (see Part II[A] below) and John Langbein (see Part II[C] below).
44. As Douglas Hay has argued, “the criminal law, more than any other social institution, made it possible to govern eighteenth-century England without a police force and without a large army.” Hay, , “Property, Authority and the Criminal Law,” in Albion's Fatal Tree: Crime and Society in Eighteenth-Century England, ed. Hay, Douglas et al. (London: Allen Lane, 1975), 56Google Scholar. On Hay's scholarship, see Part II(B) below.
45. In recently holding that U.S. federal courts had jurisdiction to hear habeas corpus petitions filed by persons held at Guantànamo Bay, the Supreme Court cited several seventeenth- and eighteenth-century English precedents, including cases that extended the writ to the Cinque-Ports town of Dover, (Bourn's Case, 79Google Scholar Eng. Rep. 465 [K.B. 1619]), to the County Palatine of Durham, (Jobson's Case, 82Google Scholar Eng. Rep. 325 [K.B. 1626]), and to a ship docked in English waters and bound for Jamaica (Somerset v. Stewart, 20 How. St. Tr. 1 [K.B. 1772]). See Rasul v. Bush, 542 U.S. 466 (2004). In Crawford v. Washington, 541 U.S. 36 (2004), the Court looked to English historical practice circa 1791 in determining that the admission of a statement made to police by the suspect's wife (outside the suspect's presence) violated the Sixth Amendment's Confrontation Clause. In Atwater v. Lago Vista, 532 U.S. 318 (2001), the Court cited to a string of eighteenth-century English statutes in determining that a police officer's warrantless arrest of a suspect for a misdemeanor seatbelt violation did not violate the Fourth Amendment. For a critical assessment of the Court's use of history in the Atwater case, see Davies, Thomas Y., “The Fictional Character of Law-and-Order Originalism: A Case Study of the Distortions and Evasions of Framing-Era Arrest Doctrine in Atwater v. Lago Vista,” Wake Forest Law Review 37 (2002): 239–437Google Scholar.
46. Maitland admitted that “much ha[d] been done for criminal law and real property law,” as well as certain areas of constitutional law, narrowly construed. Why the History of English Law Is Not Written, 6–7.
47. Stephen, James Fitzjames, A History of the Criminal Law of England, 3 vols. (London: Macmillan, 1883)Google Scholar. On Stephen's scholarly achievement, see Smith, K. J. M., James Fitzjames Stephen: Portrait of a Victorian Rationalist (Cambridge: Cambridge University Press, 1988)CrossRefGoogle Scholar.
48. See Maitland, F. W., Justice and Police (London: Macmillan, 1885)Google Scholar. As S. F. C. Milsom recounts, the “rather slight” book appeared as “a volume in a citizenship series when the chosen author fell out.” Milsom, “Maitland,” ODNB.
49. K. J. M. Smith, “Stephen, Sir James Fitzjames (1829–94),” ODNB, <http://www.oxforddnb.com/view/article/26375> (20 December 2006).
50. Maitland's greatest achievement, his two-volume History of English Law before the Time of Edward I (Cambridge: University Press, 1895)Google Scholar, co-written with Sir Frederick Pollock, concluded in the late thirteenth century. The Selden Society, which Maitland founded in 1887 and which he served in an editorial capacity, focused the bulk of its editorial energies on the medieval and early modern periods. None of the fifty-nine volumes published by the society between 1887 and 1940 addressed the period after 1650.
51. See Holdsworth, W. S., A History of English Law, 13 vols. (London: Methuen & Co., 1903–1938)Google Scholar. Moreover, Holdsworth showed little interest in the type of sustained archival labors necessary to reconstruct that history fully. His working habits apparently involved postprandial writing while “fortified with port.” See H. G. Hanbury (revised by David Ibbetson), “Holdsworth, Sir William Searle (1871–1944),” ODNB, <http://www.oxforddnb. com/view/article/33933?docPos=4> (20 December 2006).
52. For an incisive biographical treatment by one of Radzinowicz's co-authors, see Roger Hood, “Radzinowicz, Sir Leon (1906–99),” ODNB, <http://www.oxforddnb.com/view/article/73693> (20 December 2006). For autobiographical reminiscences, see Sir Radzinowicz, Leon, Adventures in Criminology (London: Routledge, 1999)Google Scholar.
53. The committee consisted of Radzinowicz, Turner, Winfield, Percy, and Jackson, R. M.. See “Research in Criminal Science,” Cambridge Law Journal 7 (1941): 399CrossRefGoogle Scholar. For an early description of “criminal science,” see Radzinowicz, L. and Turner, J. W. C., “The Language of Criminal Science,” Cambridge Law Journal 7 (1940): 224–37CrossRefGoogle Scholar.
55. Winfield observed as follows: “I have always held…that law reform is apt to be ill-considered unless the history of the law is taken into account. I should not say that reforms can never be sound unless the history of the law has been studied, but there is no doubt that, without such study, attempted amendments of the law may be one-sided or even positively mischievous.” Winfield, P. H., “Note to L. Radzinowicz, ‘Some Sources of Modern English Criminal Legislation: A Preliminary Report on the Blue Books and Parliamentary Debates for the Period 1760–1940,’” Cambridge Law Journal 8 (1943)Google Scholar. Winfield's “Note” appears on page 180, Radzinowicz's article on pages 181–94.
59. Winfield, , “Note,” 180Google Scholar. Before Radzinowicz, as Winfield observed, “government publications…ha[d] been almost totally ignored in…[existing] histories of Criminal Law.” Ibid. Radzinowicz had himself identified “only three occasions” in which the Blue Books had been mentioned in Stephen's three-volume History. Radzinowicz, , “Some Sources,” 190Google Scholar.
60. Radzinowicz, Leon, A History of English Criminal Law and Its Administration from 1750 [hereinafter Radzinowicz, History], vol. 1, The Movement for Reform, 1750–1833 (New York: Macmillan, 1948)Google Scholar.
61. Radzinowicz, , History, vol. 2, The Clash between Private Initiative and Public Interest in the Enforcement of the Law (New York: Macmillan, 1957)Google Scholar; History, vol. 3, Cross-Currents in the Movement for the Reform of the Police (New York: Macmillan, 1957)Google Scholar; and History, vol. 4, Grappling for Control (London: Stevens & Sons, 1968)Google Scholar.
63. As Innes and Styles have argued, Radzinowicz adopted a “reform perspective,” in the sense that he viewed eighteenth-century government as “grossly corrupt and inefficient” and tended to praise the achievements of late eighteenth- and early nineteenth-century criminal justice administrators. Innes and Styles, “Crime Wave,” 383.
64. For reflections on Radzinowicz's legacy, see Ideology, Crime and Criminal Justice: A Symposium in Honour of Sir Leon Radzinowicz, ed. Bottoms, Anthony and Tonry, Michael (Cullompton, U.K.: Willan, 2002)Google Scholar and Crime, Criminology and Public Policy: Essays in Honour of Sir Leon Radzinowicz, ed. Hood, Roger (London: Heinemann, 1974)Google Scholar.
66. Hood, “Radzinowicz,” ODNB. Others simply ignored it. The index to Line-baugh's, PeterThe London Hanged: Crime and Civil Society in the Eighteenth Century, 1st ed. (London: Penguin Press, 1991Google Scholar) contains listings for Friedrich Engels, Michel Foucault, Christopher Hill, Karl Marx, and even William Morris, but no mention of Radzinowicz.
67. In 1943, for example, Radzinowicz wrote that “[i]n the field of criminal justice[,] England occupies a most prominent place and may be rightly proud of the basic principles and practical achievements of its penal system.” Radzinowicz, “Some Sources,” 189.
71. Innes, and Styles, , “Crime Wave,” 382Google Scholar(“dispossessed and inarticulate”); Thompson, E. P., Whigs and Hunters: The Origin of the Black Act (London: Allen Lane, 1975), 16Google Scholar(“from ‘below’”). For reflections on Thompson's considerable influence, see King, Peter, “Edward Thompson's Contribution to Eighteenth-Century Studies: The Patrician-Plebeian Model Re-Examined,” Social History 21 (1996): 215–28CrossRefGoogle Scholar and Eastwood, David, “History, Politics and Reputation: E. P. Thompson Reconsidered,” History 85 (2000): 634–54CrossRefGoogle Scholar.
72. In 1975, two of the contributors to Albion's Fatal Tree, Douglas Hay and Peter Line-baugh, also completed doctoral dissertations under Thompson's direction. See Hay, Douglas, “Crime, Authority and the Criminal Law: Staffordshire, 1750–1800” (Ph.D. diss., University of Warwick, 1975)Google Scholar and Linebaugh, Peter, “Tyburn: A Study of Crime and the Labouring Poor in London during the First Half of the Eighteenth Century” (Ph.D. diss., University of Warwick, 1975)Google Scholar. Thompson republished Whigs and Hunters with a new postscript in 1977. See Thompson, , Whigs and Hunters: The Origin of the Black Act (Harmondsworth: Penguin, 1977)Google Scholar.
75. Linebaugh, Peter, “The Tyburn Riot against the Surgeons,” in Albion's Fatal Tree, 65–118Google Scholar.
81. For a pair of representative social-historical studies, see Rule, J. G., “Social Crime in the Rural South in the Eighteenth and Early Nineteenth Centuries,” Southern History 1 (1979): 135–53Google Scholar and Styles, John, “‘Our Traitorous Moneymakers’: The Yorkshire Coiners and the Law, 1760–83,” in An Ungovernable People: The English and Their Law in the Seventeenth and Eighteenth Centuries, ed. Brewer, John and Styles, John (London: Hutchinson's, 1980), 172–249Google Scholar.
84. For a description of the Sessions Papers, see Langbein, , “Shaping,” 3–30Google Scholar. For details relating to the publication of the Sessions Papers, see Devereaux, Simon, “The City and the Sessions Paper: ‘Public Justice’ in London, 1770–1800,” Journal of British Studies 35 (1996): 466–503CrossRefGoogle Scholar and “The Fall of the Sessions Paper: The Criminal Trial and the Popular Press in Late Eighteenth-Century London,” Criminal Justice History 18 (2003): 57–88Google Scholar.
85. For reflections on the value of judicial notes to legal historians, see Oldham, James, The Mansfield Manuscripts and the Growth of English Law in the Eighteenth Century, vol. 1 (Chapel Hill: University of North Carolina Press, 1992), 167–68Google Scholar(noting that trial notes can be used to “corroborate the printed reports, clarify the reports through unreported factual detail, and provide information about new trials granted as a result of reported proceedings”).
86. For related studies, see Langbein, John H., “The Historical Origins of the Privilege against Self-Incrimination at Common Law,” Michigan Law Review 92 (1994): 1047–85CrossRefGoogle Scholar and “The Privilege and Common Law Criminal Procedure: The Sixteenth to the Eighteenth Centuries,” in The Privilege against Self-Incrimination: Its Origins and Development, ed. Helmholz, R. H. et al. (Chicago: University of Chicago Press, 1997), 82–108Google Scholar, as well as the studies cited in Part III below.
87. In this regard, Langbein substantially revised the existing portraits of English trial procedure offered by both Wigmore and Levy.
88. Beattie, Crime and the Courts.
89. See Beattie, J. M., Policing and Punishment in London, 1660–1750: Urban Crime and the Limits of Terror (Oxford: Oxford University Press, 2001)Google Scholar and Devereaux, Simon, “Imposing the Royal Pardon: Execution, Transportation, and Convict Resistance in London, 1789,” Law and History Review 25 (2007): 101–38CrossRefGoogle Scholar.
90. See below Part III(E). 91. See Beattie, J. M., “The Pattern of Crime in England, 1660–1800,” Past & Present 62 (1974): 47–95CrossRefGoogle Scholar and “The Criminality of Women in Eighteenth-Century England,” Journal of Social History 8 (1975): 80–116CrossRefGoogle Scholar. Beattie continued to display nuanced attention to such issues in his later writings. See, for example, Beattie, , “Patterns of Prosecution and the Character of Property Crime,” in Crime and the Courts, 199–263Google Scholar and “Crime and Inequality in Eighteenth-Century London,” in Crime and Inequality, ed. Hagan, John and Peterson, Ruth D. (Stanford: Stanford University Press, 1995), 116–39Google Scholar.
92. Langbein, , Adversary Criminal Trial, 1–2Google Scholar. (“By the wealth effect, I refer to the enormous advantage that adversary procedure bestows upon persons who can afford to hire skilled trial counsel, and to pay for party-conducted factual investigation. Because most persons accused of serious crimes are indigent or near-indigent, the wealth effect is a profound structural flaw in adversary criminal procedure.”)
93. “We reach, then, not a simple conclusion (law = class power) but a complex and contradictory one. On the one hand,…the law did mediate existent class relations to the advantage of the rulers.…On the other hand, the law mediated these class relations through legal forms, which imposed, again and again, inhibitions upon the actions of the rulers.…[T]here is a very large difference, which twentieth-century experience ought to have made clear even to the most exalted thinker, between arbitrary extra-legal power and the rule of law.” Thompson, , Whigs and Hunters, 264–65Google Scholar.
94. Since 1981, Hay has been cross-appointed at York University's Osgoode Hall Law School and Department of History. On the importance of statutes, see Hay, Douglas and Craven, Paul, “Introduction” to Masters, Servants, and Magistrates, 10Google Scholar.
96. King's paper would later be published as “Decision-Makers and Decision-Making in the English Criminal Law, 1750–1800,” Historical Journal 27 (1984): 25–58CrossRefGoogle Scholar. As King would himself observe, “Hay's analysis…is brilliant and illuminating, but his concentration on the small ruling elite precluded any investigation of several important facets of the judicial process,” including the degree to which “a wide variety of participants could influence the outcome of [a] case.” Ibid., 26.
103. Hay, Douglas, “The Class Composition of the Palladium of Liberty: Trial Jurors in the Eighteenth Century” and King, P. J. R., “‘Illiterate Plebeians, Easily Misled’: Jury Composition, Experience, and Behavior in Essex, 1735–1810,” in Twelve Good Men and True: The Criminal Trial Jury in England, 1200–1800, ed. Cockburn, J. S. and Green, Thomas A. (Princeton: Princeton University Press, 1988), 329–48 and 254–304Google Scholar.
104. Writing of English master-servant law, Hay later observed that “[e]mployment law had been penal for centuries, but…became increasingly criminal in character, a slow development that accelerated in the nineteenth century.” Hay, “England, 1562–1875: The Law and Its Uses,” in Masters, Servants, and Magistrates, 106.
106. See Linebaugh, Peter, “(Marxist) Social History and (Conservative) Legal History: A Reply to Professor Langbein,” New York University Law Review 60 (1985): 212–43Google Scholar. Linebaugh laced his response with quotations from William Blake, a potted history of sanitation, and various epithets, including the claims that Langbein was “ahistorical” and lacked “historical sensitivity.”
107. In 1991, for example, Langbein roundly criticized Linebaugh for allegedly romanticizing the deeds of those condemned to hang. See Langbein, John, “Culprits and Victims,” Times Literary Supplement (October 11, 1991)Google Scholar.
108. Innes, and Styles, , “Crime Wave,” 424Google Scholar. For earlier statements of this position, see Langbein, , “Albion's Fatal Flaws,” 99Google Scholar(“Prosecutions for felony in the eighteenth century were for offences that had been felony for centuries before. The law that the courts had occasion to enforce in the eighteenth century was not for the most part the law that the contemporary legislature was enacting”); Beattie, , Crime and the Courts, 146Google Scholar(noting that robbery and burglary “had been among the first [offenses] removed from clergy in the sixteenth century, and they continued in the eighteenth to account for the largest number of convicted property offenders executed, indeed for the largest number of all offenders executed”).
109. Innes, and Styles, , “Crime Wave,” 424Google Scholar. As importantly, many of those condemned to death in the eighteenth century had been convicted of felonies that had long been considered capital at common law, such as murder.
111. Innes and Styles summarize their position as follows: “One of the most striking shortcomings of the picture…commonly offered [by the Warwick School] is the way it wholly ignores the existence of the large numbers of legislative proposals that failed to reach the statute book. Excluding government-backed revenue or military measures (which were almost always enacted), over a third of bills failed in the eighteenth century. If, as the conventional accounts suggest, legislation was rarely the subject of debate, [and] if Parliament merely concerned itself with rubber-stamping private members' proposals, it is difficult to understand why so many bills (including many concerned with crime) should have failed. The high failure rate is more easily explained if it is acknowledged that legislation was often a matter of intense disagreement and debate in eighteenth-century parliaments.” Ibid., 427 (emphasis added).
112. On the importance of studying these two bodies of statutory law together, see Smith, Bruce P., “The Presumption of Guilt and the English Law of Theft, 1750–1850,” Law and History Review 23 (2005): 133–71CrossRefGoogle Scholar and “Did the Presumption of Innocence Exist in Summary Proceedings?” Law and History Review 23 (2005): 191–99CrossRefGoogle Scholar. See also Innes, and Styles, , “Crime Wave,” 429Google Scholar(noting that “non-capital criminal legislation [was] more important numerically than is commonly allowed”).
113. Thus, the Middlesex Justices Act (1792), which created a set of stipendiary magistrates, police officers, and clerks in London associated with various “police offices,” scrupulously avoided including the historic City of London. In the mid-1780s, opposition by City interests had contributed to the defeat of a similar measure that had sought to include the City. See Philips, “New Engine.”
114. On the attitudes of judges to statute law, see Lieberman, David, The Province of Legislation Determined: Legal Theory in Eighteenth-Century Britain (Cambridge: Cambridge University Press, 1989)CrossRefGoogle Scholar and Lobban, Michael, The Common Law and English Jurisprudence, 1760–1850 (Oxford: Clarendon Press, 1991)Google Scholar.
115. For details of parliamentary lawmaking in this area, see Randall McGowen, “Making the ‘Bloody Code’? Forgery Legislation in Eighteenth-Century England,” in Law, Crime and English Society, 1660–1830, ed. Landau, Norma (Cambridge: Cambridge University Press, 2002), 117–38CrossRefGoogle Scholar; Beattie, John M., “London Crime and the Making of the ‘Bloody Code,’ 1689–1718,” in Stilling the Grumbling Hive: The Response to Social and Economic Problems in England, 1689–1750, ed. Davison, Lee et al. (New York: St. Martin's, 1992), 39–76Google Scholar; and Devereaux, Simon, “The Making of the Penitentiary Act 1775–1779,” Historical Journal 42 (1999): 405–33CrossRefGoogle ScholarPubMed.
118. See Smith, , “Presumption of Guilt.” 119Google Scholar. “English criminal law was primitive in matters of offence definition, especially the general part, that set of notions about criminal responsibility that cut across all criminal of-fences (for example, degrees of culpability, the law of attempts, aiding and abetting, capacity, and most of the affirmative defences.” Langbein, , “Albion's Fatal Flaws,” 117–18Google Scholar.
120. On efforts to rationalize the penal code in the middle decades of the nineteenth century, see Farmer, Lindsay, “Reconstructing the English Codification Debate: The Criminal Law Commissioners, 1833–45,” Law and History Review 18 (2000): 397–425Google Scholar.
121. For studies stressing the importance of pre-1829 reform, see, for example, Harris, Policing the City; Beattie, Policing and Punishment; Reynolds, Elaine A., Before the Bobbies: The Night Watch and Police Reform in Metropolitan London, 1720–1830 (Stanford: Stanford University Press, 1998)CrossRefGoogle Scholar; Paley, Ruth, “‘An Imperfect, Inadequate and Wretched System’? Policing London Before Peel,” Criminal Justice History 10 (1989): 95–130Google Scholar; and Styles, John, “The Emergence of the Police: Explaining Police Reform in Eighteenth- and Nineteenth-Century England,” British Journal of Criminology 27 (1987): 15–22CrossRefGoogle Scholar.
122. See, for example, Philips, David and Storch, Robert D., Policing Provincial England, 1829–1856: The Politics of Reform (London: Leicester University Press, 1999)Google Scholar; Taylor, David, The New Police in Nineteenth-Century England: Crime, Conflict and Control (Manchester: Manchester University Press, 1997)Google Scholar; and Weaver, Michael, “The New Science of Policing: Crime and the Birmingham Police Force, 1839–1842,” Albion 26 (1994): 289–308CrossRefGoogle Scholar. For earlier studies, see Steedman, Carolyn, Policing the Victorian Community: The Formation of English Provincial Police Forces, 1856–80 (London: Routledge, 1984)Google Scholar and Philips, David, Crime and Authority in Victorian England: The Black Country, 1835-1860 (London: Rowman & Littlefield, 1977)Google Scholar.
125. See, for example, Ellickson, Robert C., “Controlling Chronic Misconduct in City Spaces: Of Panhandlers, Skid Rows, and Public-Space Zoning,” Yale Law Journal 105 (1996): 1165–1248CrossRefGoogle Scholar(addressing measures by New Haven police officers to deal with “va-grants” even in the absence of an anti-vagrancy ordinance).
126. Here, Clive Emsley's various studies of the modes and personnel of English policing are highly suggestive. See, for example, Emsley, Clive, The English Police: A Political and Social History, 2d ed. (London: Longman, 1996)Google Scholar.
127. On the concept of “police,” see, for example, Dubber, Markus Dirk, The Police Power (New York: Columbia University Press, 2005) andCrossRefGoogle ScholarDodsworth, Francis M., “‘Civic’ Police and the Condition of Liberty: The Rationality of Governance in Eighteenth-Century England,” Social History 29 (2004): 199–216CrossRefGoogle Scholar. For discussion of popular opposition to French-style policing, see Philips, , “New Engine”; “Three ‘Moral Entrepreneurs’ and the Creation of a ‘Criminal Class’ in England, c. 1790s-1840s,” Crime, Histoire et Sociétés/Crime, History and Societies 7. 1 (2003): 79–107CrossRefGoogle Scholar; and “A ‘Weak’ State? The English State, the Magistracy and the Reform of Policing in the 1830s,” English Historical Review 119 (2004): 873–91CrossRefGoogle Scholar.
128. See Hay, Douglas and Snyder, Francis, “Using the Criminal Law: Policing, Private Prosecution and the State,” in Policing and Prosecution in Britain, 1750–1850, ed. Hay, Douglas and Snyder, Francis (Oxford: Clarendon Press, 1989), 3–52Google Scholar; Hay, Douglas, “The Criminal Prosecution in England and Its Historians,” Modern Law Review 47 (1984): 1–29CrossRefGoogle Scholar; and Hay, , “Controlling the English Prosecutor,” Osgoode Hall Law Journal 21 (1983): 165–86Google Scholar.
129. On prosecution associations, see David Philips, “Good Men to Associate and Bad Men to Conspire: Associations for the Prosecution of Felons in England, 1760–1860,” and King, Peter, “Prosecution Associations and Their Impact in Eighteenth-Century Essex,” in Policing and Prosecution, 113–70 and 171–207Google Scholar.
130. See, for example, Paley, Ruth, “Thief-Takers in London in the Age of the McDaniel Gang, c. 1745–54,” in Policing and Prosecution, 301–41Google Scholar and Wales, Tim, “Thief-Takers and Their Clients in Later Stuart London,” in Londinopolis: Essays in the Cultural and Social History of Early Modern London, ed. Griffiths, Paul and Jenner, Mark S. R. (Manchester: Manchester University Press, 2000), 67–84Google Scholar.
133. See Smith, Bruce P., “The Emergence of Public Prosecution in London, 1790–1850,” Yale Journal of Law & the Humanities 18 (2006): 29–62Google Scholar and “The Myth of Private Prosecution in England, 1750–1850,” in Modern Histories of Crime and Punishment, ed. Dubber, Markus D. and Farmer, Lindsay (Stanford: Stanford University Press, forthcoming 2007)Google Scholar.
134. “The increasing role of the police as prosecutors from the middle of the nineteenth century has been largely ignored by historians and there has been no detailed study, even on a regional basis, of precisely how, when and why the police came to predominate as prosecutors.” Emsley, , Crime and Society in England, 195Google Scholar. For preliminary treatments, see Smith, “Emergence of Public Prosecution”; Philips, Crime and Authority; and Davis, Jennifer S., “Prosecutions and Their Context: The Use of the Criminal Law in Later Nineteenth-Century London,” in Policing and Prosecution, 397–426Google Scholar.
137. See Langbein, John H., “The Prosecutorial Origins of Defence Counsel in the Eighteenth Century: The Appearance of Solicitors,” Cambridge Law Journal 58 (1999): 314–65Google Scholar and Adversary Criminal Trial, 123–27. The papers of eighteenth-century solicitors, which have yet to be systematically examined by legal historians, may shed additional light on these subjects.
138. See Beattie, , “Sir John Fielding and Public Justice,” 82–91Google Scholar and Policing and Punishment, 77–113.
139. See King, Peter, Crime, Justice, and Discretion in England, 1740–1820 (Oxford: Oxford University Press, 2000)Google Scholar. See also Conley, Carolyn, The Unwritten Law: Criminal Justice in Victorian Kent (Oxford: Oxford University Press, 1991)Google Scholar(examining the impact on criminal justice administration of contemporary concepts of status).
140. See Styles, John, “Sir John Fielding and the Problem of Criminal Investigation in Eighteenth Century England,” Transactions of the Royal Historical Society, 5th ser., 33 (1983): 127–49CrossRefGoogle Scholar and Cox, David, “‘A Certain Share of Low Cunning’: The Provincial Use and Activities of Bow Street ‘Runners,’ 1792–1839,” Eras 5 (2003), <http://www.arts.monash. edu.au/eras/edition_5/coxarticle.htm> (20 December 2006)Google Scholar.
141. On the rise of magisterial cautions concerning the evidentiary impact of a suspect's pretrial statements, see Smith, “Miranda's Paradoxical Prehistory.”
142. For a suggestive beginning, see, for example, Langbein, , Adversary Criminal Trial, 127–31Google Scholar, where he notes that magistrates' clerks occasionally acted as prosecuting solicitors. By the 1830s, legal commentators occasionally complained about the practice of clerks acting in this capacity. See Smith, Bruce P., “Circumventing the Jury: Petty Crime and Summary Jurisdiction in London and New York City, 1790–1855” (Ph.D. diss., Yale University, 1996), 443Google Scholar.
143. May, Allyson N., The Bar and the Old Bailey, 1750–1850 (Chapel Hill: University of North Carolina Press, 2003)Google Scholar.
144. Allen, Christopher, The Law of Evidence in Victorian England (Cambridge: Cambridge University Press, 1997)Google Scholar.
146. See Cairns, Adversarial Criminal Trial; Beattie, J. M., “Scales of Justice: Defence Counsel and the English Criminal Trial in the Eighteenth and Nineteenth Centuries,” Law and History Review 9 (1991): 221–67CrossRefGoogle Scholar; Landsman, Stephan, “The Rise of the Contentious Spirit: Adversary Procedure in Eighteenth-Century England,” Cornell Law Review 75 (1990): 498–609Google Scholar; Lemmings, David, “Criminal Trial Procedure in Eighteenth-Century England: The Impact of Lawyers,” Journal of Legal History 26 (2005): 63–70CrossRefGoogle Scholar; May, Allyson, “Advocates and Truth-Seeking in the Old Bailey Courtroom,” Journal of Legal History 26 (2005): 71–77CrossRefGoogle Scholar; Alschuler, Albert W., “Narrative and Normativity: Comments on The Origins of Adversary Criminal Trial,” Journal of Legal History 26 (2005): 79–84CrossRefGoogle Scholar; and Langbein, John H., “Response,” Journal of Legal History 26 (2005): 85–89CrossRefGoogle Scholar.
147. Norma Landau's important study, The Justices of the Peace, 1679–1760 (Berkeley: University of California Press, 1984)Google Scholar, discussed the legislative expansion of summary jurisdiction in the eighteenth century but spent little time examining the procedures actually used by magistrates in exercising that jurisdiction. For an insightful examination of the role of summary proceedings in combating workplace appropriation, see Styles, John, “Embezzlement, Industry and the Law in England, 1500–1800,” in Manufacture in Town and Country before the Factory, ed. Berg, Maxine, Hudson, Pat, and Sonenscher, Mark (Cambridge: Cambridge University Press, 1983), 173–210CrossRefGoogle Scholar.
148. See, for example, King, , Crime, Justice, and Discretion, 82–125Google Scholar; King, , “The Summary Courts and Social Relations in Eighteenth-Century England,” Past & Present 183 (2004): 125–72CrossRefGoogle Scholar; Smith, “Presumption of Guilt”; and Landau, Norma, “Summary Conviction and the Development of the Penal Law,” Law and History Review 23 (2005): 173–89CrossRefGoogle Scholar.
149. See Smith, “Presumption of Guilt.”
150. Gallanis, T. P., “The Rise of Modern Evidence Law,” Iowa Law Review 84 (1999): 499–560Google Scholar.
151. See Langbein, John H., “Understanding the Short History of Plea Bargaining,” Law & Society Review 13 (1979): 261–72CrossRefGoogle Scholar; Feeley, Malcolm and Lester, Charles, “Legal Complexity and the Transformation of the Criminal Process,” in Subjektivierung des Justiziellen Beweisverfahrens, ed. Gouron, André et al. (Frankfurt: Vittoria Klostermann, 1977), 337–75Google Scholar; Feeley, Malcolm, “Legal Complexity and the Transformation of the Criminal Process: The Origins of Plea Bargaining,” Israel Law Review 31 (1997): 183–222CrossRefGoogle Scholar; and Smith, Bruce P., “Plea Bargaining and the Eclipse of the Jury,” Annual Review of Law and Social Science 1 (2005): 131–49 (surveying literature)CrossRefGoogle Scholar.
154. Gatrell, V. A. C., The Hanging Tree: Execution and the English People, 1770–1868 (Oxford: Oxford University Press, 1994)Google Scholar.
155. See McGowen, Randall, “Managing the Gallows: The Bank of England and the Death Penalty, 1797–1821,” Law and History Review 25 (2007): 241–82CrossRefGoogle Scholar; “The Problem of Punishment in Eighteenth-Century England,” in Penal Practice and Culture, 1500–1900: Punishing the English, ed. Devereaux, Simon and Griffiths, Paul (London: Palgrave Macmillan, 2004), 210–31CrossRefGoogle Scholar; “History, Culture and the Death Penalty: The British Debates, 1840–1870,” Historical Reflections/Réflexions Historiques 29 (2003): 229–40Google Scholar; “From Pillory to Gallows: The Punishment of Forgery in the Age of the Financial Revolution,” Past & Present 165 (1999): 107–40CrossRefGoogle Scholar; “Civilizing Punishment: The End of the Public Execution in England,” Journal of British Studies 33 (1994): 257–82CrossRefGoogle Scholar; “The Changing Face of God's Justice: The Debates over Divine and Human Punishment in Eighteenth-Century England,” Criminal Justice History 9 (1988): 63–98Google Scholar; “The Body and Punishment in Eighteenth-Century England,” Journal of Modern History 59 (1987): 651–79Google Scholar; “A Powerful Sympathy: Terror, the Prison, and Humanitarian Reform in Early Nineteenth-Century Britain,” Journal of British Studies 25 (1986): 312–34CrossRefGoogle Scholar; and “‘He Beareth Not the Sword in Vain’: Religion and the Criminal Law in Eighteenth-Century England,” Eighteenth-Century Studies 21 (1987–1988): 191–211Google Scholar. For McGowen's assessment of Gatrell's Hanging Tree, see “Revisiting the Hanging Tree: Gatrell on Emotion and History,” British Journal of Criminology 40 (2000): 1–13CrossRefGoogle Scholar.
156. On this theme, see Andrew, Donna T. and Randall McGowen, The Perreaus and Mrs. Rudd: Forgery and Betrayal in Eighteenth-Century London (Berkeley: University of California Press, 2001)Google Scholar.
157. “Executing a large proportion of capital convicts might…be feasible when that proportion translated into a relatively small absolute number on any single occasion.…But by the end of [the eighteenth] century, this was no longer the case.” Devereaux, “Imposing the Royal Pardon,” 131.
159. See Gatrell, , Hanging Tree, 435–37Google Scholar(citing, inter alia, Harmer, James, The Murder of Mr. Steele: Documents and Observations, Tending to Shew a Probability of the Innocence of John Holloway and Owen Haggerty, Who were Executed…as the Murderers of the Above Gentleman [London: n.p., 1807])Google Scholar.
160. See Smith, Bruce P., “The History of Wrongful Execution,” Hastings Law Journal 56 (2005): 1185–1233Google Scholar. Phillipps (1780–1862), a prominent treatise writer, served as Under-Secretary of State at the Home Department from 1827 to 1848. See Michael Lobban, “Phillipps, Samuel March,” ODNB, <http://www.oxforddnb.com/view/article/22142> (25 February 2007).
161. See Morgan, Gwenda and Rushton, Peter, Eighteenth-Century Criminal Transportation: The Formation of the Criminal Atlantic (Houndsmills Basingstoke: Palgrave Macmillan, 2004)CrossRefGoogle Scholar; Ekirch, A. Roger, Bound for America: The Transportation of British Convicts to the Colonies, 1718–1775 (Oxford: Oxford University Press, 1987)Google Scholar; Shore, Heather, “Transportation, Penal Ideology and the Experience of Juvenile Offenders in England and Australia in the Early Nineteenth Century,” Crime, Histoire et Sociétés/Crime, History and Societies 6. 2 (2002): 81–102CrossRefGoogle Scholar; Devereaux, Simon, “In Place of Death: Transportation, Penal Practices and the English State, 1770–1830,” in Qualities of Mercy: Justice, Punishment and Discretion, ed. Strange, Carolyn (Vancouver: University of British Columbia Press, 1996), 52–76Google Scholar; and Smith, David, “The Demise of Transportation: Mid-Victorian Penal Policy,” Criminal Justice History 3 (1982): 21–45Google Scholar.
162. On penitentiaries, see DeLacy, Margaret, Prison Reform in Lancashire, 1700–1850 (Stanford: Stanford University Press, 1986)Google Scholar and McGowen, Randall, “The Well-Ordered Prison: England, 1780–1865,” in The Oxford History of the Prison, ed. Morris, Norval and Rothman, David J. (New York: Oxford, 1995), 79–109Google Scholar. For earlier studies, see Evans, Robin, The Fabrication of Virtue (Cambridge: Cambridge University Press, 1982)Google Scholar and Ignatieff, Michael, A Just Measure of Pain: The Penitentiary in the Industrial Revolution (London: Macmillan, 1978)CrossRefGoogle Scholar. On the subject of eighteenth-century houses of correction, which continue to remain understudied, see Innes, Joanna, “Prisons for the Poor: English Bridewells, 1555–1800,” in Labour, Law and Crime: An Historical Perspective, ed. Snyder, Francis and Hay, Douglas (London: Tavistock, 1987), 42–122Google Scholar and Fisher, George, “The Birth of the Prison Retold,” Yale Law Journal 104 (1995): 1235–1324CrossRefGoogle Scholar.
163. See Smith, Gregory T., “Civilized People Don't Want to See That Kind of Thing: The Decline of Public Physical Punishment in London, 1760–1840,” in Qualities of Mercy, 121–51Google Scholar.
164. See King, Peter, “War as a Judicial Resource: Press Gangs and Prosecution Rates, 1740–1830,” in Law, Crime and English Society, 97–116Google Scholar.
165. See King, Peter, “The Making of the Reformatory: The Development of Informal Reformatory Sentences for Juvenile Offenders, 1780–1830,” in Crime and Law in England, 142ffGoogle Scholar. For an earlier treatment, see “The Development of Informal Reformatory Sentences for Juvenile Offenders in the Late Eighteenth and Early Nineteenth Centuries,” Center for the Study of Law and Society Bag Lunch Speaker Series (University of California, Berkeley), Paper 21, 1 November 2004, <http://repositories.cdlib.org/csls/lss/21> (20 December 2006).
166. See Morgan, Gwenda and Rushton, Peter, “Running Away and Returning Home: The Fate of English Convicts in the American Colonies,” Crime, Histoire et Sociétés/Crime, History and Societies 7. 2 (2003): 61–80Google Scholar.
167. Gallanis, “Mystery of Old Bailey Counsel” (suggesting that the threat of confinement in the hulks and transportation to Botany Bay encouraged defendants post-1775 to retain counsel in increasing numbers).
168. For a description of the Old Bailey Proceedings Online, see <www.oldbaileyonline. org>. Within the next few years, the project's organizers intend to publish proceedings covering the period from 1834 to 1913. See <http://www.oldbaileyonline.org/about/#1834>.
169. For a description, see Gallanis, , “Legal History with 21st-Century Tools.” 170Google Scholar. See William S. Hein & Co., State Trials on CD-ROM, <http://www.wshein.com/Catalog/Product.aspx?item=311836>. For an incisive review of this source's potential, see Gallanis, Thomas, “Adversarial Culture, Adversarial Doctrine: Cross-Examination and Leading Questions in the ‘State Trials on CD-ROM,’” Journal of Legal History 23 (2003): 86CrossRefGoogle Scholar.
171. See Thomson Gale, Eighteenth Century Collections Online, <http://www.gale.com/EighteenthCentury/index.htm> (describing the project as “the most ambitious single digitization project ever undertaken”).
172. See Thomson Gale, The Making of Modern Law, <http://www.galeuk.com/trials/moml/> (estimating the size of the digitized archive as approximately 10.6 million pages).
173. The 18th Century British Parliamentary Papers Project (<http://www.parlpapers.ac.uk/18c/>), based at the University of Southampton, has employed a novel robotic scanning technology to create “a comprehensive digital library” of parliamentary papers published between 1688 and 1800. ProQuest's digital archive of 19th Century House of Commons Parliamentary Papers makes available materials for the nineteenth century previously accessible only in hard copies or microfiche. See <http://www.proquest.co.uk/products/19thcent_house_of_commons_parliamentary_papers.html>. In turn, the British Official Publications Collaborative Reader Information Service (BOPCRIS) allows researchers to use a Web-based database to search and browse both eighteenth- and nineteenth-century parliamentary papers. See <http://www.bopcris.ac.uk/>.
174. The Times Digital Archive, for example, permits users to search copies of The Times (London) from 1785 to 1985. See <http://www.gale.com/Times/>. For additional newspaper sources, see British Library, Newspapers Digitisation Project: British Newspapers 1800–1900, <http://www.bl.uk/collections/britishnewspapers1800to1900.html>. For studies demonstrating the riches of newspapers as a source of information on criminal justice administration, see King, Peter, “Newspaper Reporting, Prosecution Practice and Perceptions of Urban Crime: The Colchester Crime Wave of 1765,” Continuity and Change 2 (1987): 423–54CrossRefGoogle Scholar and Styles, John, “Print and Policing: Crime Advertising in Eighteenth-Century Provincial England” in Policing and Prosecution, 55–111Google Scholar.
175. The Police Gazette originated as “information sheets” published by Sir John Fielding in the 1770s. In recent years, copies of the Police Gazette that survive in English and Australian archives for the periods 1797–1840 and 1848–50 have been made available on microfilm by Adam Matthew Publications. Copies of the Police Gazette from 1828–39, including portions for 1836 not contained in the existing microfilm series, can be found in the National Archives in the series HO 62/1–22. For a description of the microfilm source, see Adam Matthew Publications, The Police Gazette, Publisher's Note, <http://www.adam-matthew-publications.co.uk/digital_guides/police_gazette_part_2/Publishers-Note.aspx>.
176. Gallanis, T. P., “Evidence Law and the Evidentiary Objection: A View from the ‘British Trials’ Collection,” in Domestic and International Trials, vol. 2, The Trial in History, ed. Melikan, Rose A. (Manchester: Manchester University Press, 2003), 12–21Google Scholar. See also the sources cited in note 14 above.
179. See Masters, Servants, and Magistrates.
180. Whitman, James Q., Harsh Justice: Criminal Punishment and the Widening Divide between America and Europe (Oxford: Oxford University Press, 2003)Google Scholar.
181. See, however, Masters, Servants, and Magistrates; Miller, Cops and Bobbies; Fisher, George, Plea Bargaining's Triumph: A History of Plea Bargaining in America (Stanford: Stanford University Press, 2004)Google Scholar; and Palmer, Police and Protest. For a recent effort, see Comparative Histories of Crime, ed. Godfrey, Barry, Emsley, Clive, and Dunstall, Graeme (Cullompton, U.K.: Willan, 2003)Google Scholar.
185. See above Part II(A).
188. Compare, for example, Gatrell, V. A. C., “The Decline of Theft and Violence in Victorian and Edwardian England,” in Crime and the Law, 238–370, with Kelling, George L. and Coles, Catherine, Fixing Broken Windows (Berkeley: University of California Press, 1990)Google Scholar.
189. See, for example, Becker, Gary S. and Stigler, George J., “Law Enforcement, Malfeasance, and Compensation of Enforcers,” Journal of Legal Studies 3 (1974): 1–18CrossRefGoogle Scholar; Landes, William M. and Posner, Richard A., “The Private Enforcement of Law,” Journal of Legal Studies 4 (1975): 1–46CrossRefGoogle Scholar.
194. Although the working conditions of barristers in London remain challenging, there has been no exodus to English academic positions, which possess their own rigors—at far lower pay. At any rate, the Public Record Office no longer resides at Chancery Lane but at Kew—a considerable distance from Holborn.
195. King, Crime and Law in England.
196. McKenzie, Tyburn's Martyrs: Execution in England, 1675–1775 (forthcoming). In 2006, the American Society for Legal History awarded both the Sutherland and Surrency prizes to McKenzie's article on peine forte et dure. See McKenzie, “‘This Death Some Strong and Stout Hearted Men Doth Choose.’”
197. Simon Devereaux, Convicts and the State: Criminal Justice and the English Government, 1750–1810 (forthcoming).
198. Bruce P. Smith, Summary Justice: Magistrates, Theft, and the Law in London and the Urban Atlantic World, 1760–1860 (book manuscript).
199. Peter Linebaugh has turned his attention to the history of the transatlantic working class. After publishing The Hanging Tree in 1994, Gatrell shifted his interests to the history of English manners, humor, and satire. John Styles, who wrote a series of pioneering studies of summary proceedings and magisterial practice in the eighteenth century, later shifted his interests to the history of fashion, taking a position at the Victoria and Albert Museum.
200. A cursory examination of the titles of the roughly 1,300 theses in progress in the United Kingdom during 2005 revealed less than ten that included the words “crime” or “criminal” in their titles. See Theses in Progress, 2005, <http://www.history.ac.uk/ihr/Re-sources/Theses/tp.html>. By way of comparison, the word “class” appeared in thirty-five titles, “gender” in seventeen titles, and “masculinity” in eight titles.
201. Many of these scholars (including Simon Devereaux, Allyson May, Andrea Mc-Kenzie, and Greg Smith) trained with John Beattie at the University of Toronto.
202. For example, Drew Gray, a lecturer in history at the University of Northampton, has recently completed a promising dissertation, under the supervision of Peter King, on summary procedure in the City of London.