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Shaping the Eighteenth-Century Criminal Trial: a View from the Ryder Sources John H

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The University of Chicago Law Review VOLUME 50 NUMBER 1 WINTER 1983 © 1983 by The University of Chicago Shaping the Eighteenth-Century Criminal Trial: A View from the Ryder Sources John H. Langbeint t Max Pam Professor of American and Foreign Law, University of Chicago. I wish to express my gratitude for the labors of the late K.L. Perrin, the transcriber of the Ryder shorthand sources, who died as I was completing this article. His transcripts made the sources accessible for scholarship. He arranged for the deposit of his personal carbon copies of the transcripts at the University of Chicago Law Library, and over the years from 1975 through 1981.he answered many questions. I deeply regret that I was una- ble to have the benefit of his advice on the text of this article. I also wish to acknowledge the kindness of the Earl of Harrowby in authorizing Mr. Perrin's deposit of the transcripts at Chicago. John Beattie (Toronto) and John Styles (Bath) supplied references that greatly facili- tated my work in the public records. Douglas Hay (Warwick), who first cited the Ryder assize diary in published scholarship, shared his notes with me. Malvin Zirker (Indiana) helped with the sources and literature for Henry Fielding. John Baker (Cambridge), James Cockburn (Maryland), Charles Gray (Chicago), Thomas Green (Michigan), R.H. Hehnholz (Chicago), Joanna Innes (Oxford), Mark Kishlansky (Chicago), A.W.B. Simpson (Kent), and Geoffrey Stone (Chicago) commented on a prepublication draft. Judith Rose (J.D. Chicago 1982) helped locate the illustrations, and she constructed the calendar infra note 29. A num- ber of particular references are acknowledged in the footnotes. Research of this sort is not cheap to conduct, especially from across the Atlantic; I am grateful to Dean Gerhard Casper and the University of Chicago Law School for the financial support that has made the work possible. I wish to direct readers' attention to the three endnotes that appear at the conclusion of this article dealing with (1) the modernization and Americanization of spelling, punctuation, and so forth; (2) the conventions followed by the shorthand transcriber in preparing his transcripts; and (3) acknowledgements for the illustrations reproduced in the article. I am grateful to the editors of the Review for allowing deviations from their customary citation practices in order to facilitate the use of historical sources. HeinOnline -- 50 U. Chi. L. Rev. 1 1983 The University of Chicago Law Review [50:1 Some of the most fundamental attributes of modern Anglo- American criminal procedure for cases of serious crime emerged in England during the eighteenth century: the law of evidence, the adversary system, the privilege against self-incrimination, and the main ground rules for the relationship of judge and jury.' In trying to understand the great developments of this period, legal histori- ans have been bedeviled by source problems that to some extent must always remain insoluble. The present article is based primar- ily upon a pair of novel historical sources: the notebooks of Sir Dudley Ryder, who served as an Old Bailey trial judge in the 1750s; and a series of pamphlet accounts of Old Bailey trials that we verify by comparing them with the Ryder notes. Our main theme is the influence of the pretrial process upon the development of the rules of trial. The Ryder-period sources give us a window on the institutions and procedures that were be- ing employed to investigate crimes and to gather evidence for these trials. In some respects the ramshackle prosecutorial system of mid-century London worked remarkably well, but it had grievous shortcomings. The concern grew that the system encouraged false witnesses, who found it all too easy to bring about the condemna- tion of innocent men. We think that the relatively sudden rise of the law of evidence and of adversary trial procedure was, at least in part, a response. Part I of this article is devoted to the description and compar- ison of the main sources. Discrepancies between the judge's notes and the pamphlets are identified and analyzed in the light of the different purposes for which the two sources were produced. Part II examines what the sources tell us about the composition of the bench and the allocation of functions within the nominally colle- gial trial judiciary of the Old Bailey. Part III looks at the offenses charged and the outcomes in the cases in our sample. Part IV is devoted to the pretrial procedure of detection and binding over for prosecution, with particular attention to the work of Henry Field- ing, the novelist, and his brother John as principal magistrates for Middlesex in the period just before and during Dudley Ryder's tenure in judicial office. In Part V, we describe the crown witness system, upon which the Middlesex magistracy placed great reli- I I have discussed these points in Langbein, The Criminal Trial before the Lawyers, 45 U. Cm. L. Rav. 263 (1978) [hereafter cited as Article 1]. On the adversary system and the appearance of lawyers, see id. at 282-83, 307-16; on the law of evidence, see id. at 300-06; on the want of the privilege against self-incrimination, see id. at 283-84; and on jury composi- tion and jury control, see id. at 272-300. HeinOnline -- 50 U. Chi. L. Rev. 2 1983 19831 Eighteenth-Century Criminal Trial ance, and its bearing on the rise of the law of evidence. In Part VI we discuss the reward system and the celebrated scandal that brought it into disrepute. Part VII is devoted to the trial caseloads and Part VIII to trial procedure and the advent of the adversary system. I. SOURCES Criminal law reporting in the modern sense is basically a nine- teenth-century tradition, and one that reflects the radically altered state of affairs of the lawyer-dominated nineteenth-century trial. For most of the eighteenth century, when lawyers for prosecution and defense were rather peripheral figures, lawyers' literature was not much produced. Five years ago in an article in this journal, I undertook to identify and explain some of the procedural develop- ments of the period from the mid-1670s to the mid-1730s. I based this work mainly on a little-known set of pamphlet sources that contain "probably the best accounts we shall ever have of what transpired in ordinary English criminal courts before the later eighteenth century."s These pamphlets, the Old Bailey Sessions Papers (hereafter OBSP),' chronicle the trials that took place at the sittings ("sessions") of the Old Bailey. The Old Bailey was the trial court for cases of serious crime (felony) committed in the city of London and the adjacent county of Middlesex.' The court sat ' See Wigmore, A General Survey of the History of the Rules of Evidence, in 2 SELEcT ESSAYS IN ANGLO-AmmcAN LEGAL HISTORY 691, 694-96 (Ass'n of Am. Law Schools ed. 1908). 3 Article I, supra note 1, at 271. 4 The proper title as it appears during the Ryder period (with appropriate variations in dates, sessions, pamphlet numbers, and the names of mayors) is, for example, The Proceed- ings on the King's Commissions of the Peace, Oyer and Terminer, and Gaol Delivery for the City of London; and also the Gaol Delivery for the County of Middlesex, Held at Jus- tice-Hall in the Old-Bailey, on Wednesday the 23rd, Thursday the 24th, Friday the 25th, Saturday the 26th, and Monday the 28th of October, in the 27th Year of His Majesty's Reign; Number'VIII for the Year 1754: Being the Eighth Sessions in the Mayoralty of the Right Hon. Thomas Rawlinson, Esq., Lord-Mayor of the City of London (London 1754) [hereafter cited by month and year as OBSP]. For discussion of London mayoral years as dating conventions, see infra text accompanying note 28. 6 A few other courts had nominal capital jurisdiction overlapping the Old Bailey's venue, but this was of no importance. The House of Lords could try peers, and King's Bench could (but virtually never did) try felons "at the bar." The High Court of Admiralty convened "Admiralty sessions" for felonies arising on the high seas and navigable waters. These cases were tried in London by London juries presided over by royal court judges proceeding in accordance with ordinary common law criminal procedure, so that the prac- tice resembled a special sitting of the Old Bailey. During the Ryder years (1754-1756), Ad- miralty handled only a few criminal cases, all of them genuinely maritime and arising well away from London. See Public Record Office, London [hereafter cited as PRO] HCA (High HeinOnline -- 50 U. Chi. L. Rev. 3 1983 The University of Chicago Law Review [50:1 eight times a year. The OBSP report the outcomes of every trial held in each ses- sions, and they contain supposedly verbatim narratives for most of the trials. Although the OBSP can be immensely revealing, they have shortcomings that considerably impair their usefulness and reliability as a legal historical source. The OBSP were an early spe- cies of periodical journalism, purveying a diet of true-life crime stories for the interest and amusement of a nonlawyer readership. They were sold on the streets of London within days of the trials they reported. In the mid-1750s, the period that we shall be em- phasizing in the present article, the price was four pence a pam- phlet. The OBSP were not meant to serve as legal precedents, al- though we shall see that the legal system of the 1750s found a few uses for them.
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