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On May 17, 1910, Donald C. MacPherson purchased a Buick runabout from the Close Brothers dealership of Schenectady, New York. The new rig sported a “four cylinder, twenty-two and a half horse power” engine, allowing it to reach a speed of fifty miles per hour. Its body had been painted “French gray” and a similar gray color coated the wooden wheels. The runabout accommodated two passengers in the front seat and one in the rumble seat. Though smaller and slower than other cars on the market in 1910, the Buick served MacPherson's purposes. During the summer and fall, he drove the machine to various places in the vicinity of Saratoga Springs for his business as a stone cutter who specialized in making grave stones.
Public accommodations—hotels, trains, restaurants, steamboats, theaters, buses, motels, and the like—were for more than a century located at the epicenter of legal and political struggles for racial equality. From the age of Reconstruction to the civil rights movement of the mid-twentieth century, civil rights in public places stood alongside voting rights, school integration, and equal opportunity in employment and housing as conditions that black people and their allies claimed as necessary attributes of a just society. The Civil Rights Act of 1875 and the Supreme Court rulings in the Civil Rights Cases and especially in Plessy v. Ferguson were critical episodes in the career of Jim Crow in the nineteenth century, followed in the twentieth by the Montgomery bus boycott, the sit-ins, the Freedom Rides, and the Civil Rights Act of 1964.
The British treated Australia as terra nullius—as unowned land. Under British colonial law, aboriginal Australians had no property rights in the land, and colonization accordingly vested ownership of the entire continent in the British government. The doctrine of terra nullius remained the law in Australia throughout the colonial period, and indeed right up to 1992.
Forum: Presuming Guilt in English Law, 1750–1850: Variation or Theme?
When it is said that a defendant to a criminal charge is presumed to be innocent, what is really meant is that the burden of proving his guilt is upon the prosecution. This golden thread…runs through the web of the English criminal law. Unhappily Parliament regards the principle with indifference—one might almost say with contempt. The statute book contains many offences in which the burden of proving his innocence is cast on the accused.
No principle in Anglo-American criminal law is more vaunted than the so-called “presumption of innocence”: the doctrine that the prosecution must both produce evidence of guilt and persuade the fact-finder “beyond a reasonable doubt.” The claim that “every man is presumed to be innocent until he is proved guilty” has been described as “dear to the hearts of Englishmen” and as an omnipresent feature of English criminal law. In 1895, the United States Supreme Court declared the “presumption of innocence in favor of the accused” to be “the undoubted law, axiomatic and elementary”—a protection that “lies at the foundation of the administration of our criminal law.” Befitting its lofty stature in Anglo-American legal culture, the presumption has become associated, over time, with that most famous of Blackstonean maxims: “[I]t is better that ten guilty persons escape, than that one innocent suffer.”
Bruce Smith's article, “The Presumption of Guilt and the English Law of Theft, 1750–1850,” has a highly intriguing argument. While I do not agree with that argument, it is nonetheless very helpful in identifying questions fundamental to characterization of what Smith terms the “Bloodless Code”—the eighteenth-century laws authorizing summary conviction, laws that, as Smith states, were a striking feature of the Hanoverian legal regime.
Having long admired Norma Landau's pioneering work on the seventeenth- and eighteenth-century English magistracy, I am grateful to her for bringing her considerable expertise to bear on my article. Characteristically, Landau's criticism is extremely forceful. Unfortunately, the intriguing questions that Landau raises in her comment are obscured by a host of criticisms based on a misunderstanding of the claims that I advance. Landau attributes arguments to me that I do not make and ignores important ones that I do. In the process, she fails to engage with my central thesis: In summary proceedings that required suspects to “account” for materials found in their possession, the presumption of innocence did not exist.