The Presumption of Guilt and the English Law of Theft, 1750-1850

Abstract

When it is said that a defendant to a criminal charge is presumed to be innocent, what is really meant is that burden of proving his guilt is upon prosecution. This golden thread ... runs through web of English criminal Unhappily Parliament regards principle with indifference - one might almost say with contempt. The statute book contains many offences in which burden of proving his innocence is cast on accused. (Glanville Williams, The Proof of Guilt: A Study of English Criminal Trial (1955)) No principle in Anglo-American criminal law is more vaunted than so-called of innocence: doctrine that prosecution must both produce evidence of guilt and persuade fact-finder beyond a reasonable doubt. The claim that every man is presumed to be innocent until he is proved has been described as dear to hearts of Englishmen and as an omnipresent feature of English criminal In 1895, United States Supreme Court declared of innocence in favor of accused to be the undoubted law, axiomatic and elementary - a protection that lies at foundation of administration of our criminal law. Befitting its lofty stature in Anglo-American legal culture, 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. Recently, Allyson May has argued that presumption developed in eighteenth century along with a series of procedural and evidentiary protections benefiting defendants tried at London's Old Bailey, including right to counsel, notion of prosecution's case, and beyond-reasonable-doubt standard of proof. But how robust was presumption of innocence in late eighteenth and early nineteenth century English criminal law? This article argues that many English criminal defendants in late eighteenth and early nineteenth centuries did not benefit from a presumption of innocence but, rather, struggled against a statutory presumption of guilt. In starkest cases, defendants labored under a presumption of guilt when charged with violating one of numerous statutes passed by Parliament during eighteenth and early nineteenth centuries designed to combat various forms of misappropriation. Under these statutes, persons detected in possession of goods such as metal, rope, textile materials, or wood who failed to account adequately for their possession could be convicted by magistrates of misdemeanors in proceedings, which dispensed with certain important procedural and evidentiary protections applicable in cases of larceny tried in higher courts. Unfortunately, historians still know comparatively little about summary proceedings - this, despite their critically important role in administration of criminal justice in eighteenth and early nineteenth century England (and beyond). This article advances two principal claims: first, English criminal justice administrators from roughly 1750 to 1850 routinely resorted to summary proceedings in cases of suspected petty theft because of challenges of securing convictions in higher courts for felony of simple larceny; and, second, English criminal justice administration in this era is best viewed as a two-tiered system, in which heightened procedural and evidentiary protections for defendants tried for felonies in higher courts coexisted with a system of reduced protections for defendants tried summarily for misdemeanors.