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3. See Williams, , Proof of Guilt, 151Google Scholar(describing the presumption as “dear to the hearts of Englishmen”) and Fellman, David, The Defendant's Rights Under English Law (Madison: University of Wisconsin Press, 1966), 104Google Scholar(“English law always starts with a strong presumption against the commission of a crime”) (emphasis added).

4. Coffin v. United States, 156 U.S. 432, 453 (1895). For citations to other American cases expressing similar veneration, see William S. Laufer, “The Rhetoric of Innocence,” Washington Law Review 70 (1995): 338–39 n. 43Google Scholar.

5. William Blackstone, Commentaries on the Laws of England, vol. 4, Of Public Wrongs (1769), 352. Judicial opinions crediting the maxim to Blackstone include, for example, Coffin,156 U.S. at 455–56 (attributing versions of the maxim to Fortescue, Hale, and Blackstone) and United States v. Greer, 538 F.2d 437, 441 (D.C. Cir. 1976) (“It is a cardinal principle of Anglo-American jurisprudence that, in Blackstone's immortal words, better ten guilty persons should go free than one innocent person be convicted.”). Over time, commentators have expressed widely disparate views as to the optimal ratio of “guilty” to “innocent.” See Alexander Volokh, Aside, “n Guilty Men,” University of Pennsylvania Law Review 146 (1997): 173–211.

6. Referring to proceedings at the Old Bailey, May writes of “[t]he development of the concept of the presumption of innocence in the eighteenth century” that characterized a “new standard of justice” associated with “the right to counsel, an onus on the prosecution rather than the defense, a high standard of evidentiary proof, and a belief in adversarial procedure.” May, Allyson N., The Bar and the Old Bailey, 1750–1850 (Chapel Hill: University of North Carolina Press, 2003), 233–35Google Scholar. On the rise of counsel at the Old Bailey, see Langbein, John H., The Origins of Adversary Criminal Trial (Oxford: Oxford University Press, 2003Google Scholar); idem, “The Prosecutorial Origins of Defence Counsel in the Eighteenth Century: The Appearance of Solicitors,” Cambridge Law Journal 58 (1999): 314–65Google Scholar; idem, “Shaping the Eighteenth-Century Criminal Trial: A View from the Ryder Sources,” University of Chicago Law Review 50 (1983): 123–30Google Scholar; idem, “The Criminal Trial before the Lawyers,” University of Chicago Law Review 45 (1978): 307–14Google Scholar; May, The Bar and the Old Bailey; Cairns, David J. A., Advocacy and the Making of the Adversarial Criminal Trial 1800–1865 (Oxford: Clarendon Press, 1998Google Scholar); J. M. Beattie, “Scales of Justice: Defense Counsel and the English Criminal Trial in the Eighteenth and Nineteenth Centuries,” Law and History Review 9 (1991): 221–67CrossRefGoogle Scholar; and Landsman, Stephan, “The Rise of the Contentious Spirit: Adversary Procedure in Eighteenth Century England,” Cornell Law Review 75 (1990): 497–609Google Scholar. For historical treatments of the “beyond-reasonable-doubt” standard, see Shapiro, Barbara J., “Beyond Reasonable Doubt” and “Probable Cause”: Historical Perspectives on the Anglo-American Law of Evidence (Berkeley: University of California Press, 1991Google Scholar); idem, “‘To A Moral Certainty’: Theories of Knowledge and Anglo-American Juries 1600–1850,” Hastings Law Journal 38 (1986): 153–93Google Scholar;Langbein, , Origins of Adversary Criminal Trial, 261–66Google Scholar;Sheppard, Steve, “The Metamorphoses of Reasonable Doubt: How Changes in the Burden of Proof Have Weakened the Presumption of Innocence,” Notre Dame Law Review 78 (2003): 1165–1249Google Scholar; and Morano, Anthony A., “A Reexamination of the Development of the Reasonable Doubt Rule,” Boston University Law Review 55 (1975): 507–28Google Scholar.

7. See Blackstone, , Commentaries, 4:277Google Scholar(“By a summary proceeding I mean principally such as is directed by several acts of parliament … for the conviction of offenders, and the inflicting of certain penalties created by those acts of parliament. In these there is no intervention of a jury, but the party accused is acquitted or condemned by the suffrage of such person only, as the statute has appointed for his judge.”). On the eighteenth-century English magistracy generally, see Landau, Norma, The Justices of the Peace, 1679–1760 (Berkeley: University of California Press, 1984Google Scholar). For details on the origins of the stipendiary magistracy in London, see Ruth Paley, “The Middlesex Justices Act of 1792: Its Origins and Effects” (Ph.D. diss., University of Reading, 1983) and David Philips, “‘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.

8. As Peter King has observed, although summary proceedings played a “vital” role in English criminal justice administration in the eighteenth and nineteenth centuries, “sum-mary justice” remains “relatively understudied” as a historical phenomenon. King, Peter, Crime, Justice, and Discretion in England, 1740–1820 (Oxford: Oxford University Press, 2000), 5 n. 10Google Scholar, 83. Relevant historical studies include Bruce P. Smith, “Circumventing the Jury: Petty Crime and Summary Jurisdiction in London and New York City, 1790–1855” (Ph.D. diss., Yale University, 1996); King, , Crime, Justice, and Discretion, 82–110Google Scholar; V. A. C. Gatrell, “Crime, Authority and the Policeman-State,” in The Cambridge Social History of Britain 1750–1950, vol. 3, Social Agencies and Institutions, ed. Thompson, F. M. L. (Cambridge: Cambridge University Press, 1990), 243–310Google Scholar; and Joanna Innes, “Prisons for the Poor: English Bridewells, 1555–1800,” in Labour, Law and Crime: An Historical Perspective, ed. Snyder, Francis and Hay, Douglas (London: Routledge, 1987), 42–122Google Scholar. For discussions of summary proceedings in the post-1850 period, see Jennifer Davis, “A Poor Man's System of Justice: The London Police Courts in the Second Half of the Nineteenth Century,” Historical Journal 27 (1984): 309–35CrossRefGoogle Scholar, and Behlmer, George, “Summary Justice and Working-Class Marriage in England, 1870–1940,” Law and History Review 12 (1994): 229–75CrossRefGoogle Scholar.

9. Hay, Compare Douglas, “Property, Authority and the Criminal Law,” in Albion's Fatal Tree: Crime and Society in Eighteenth-Century England, ed. Hay, Douglas et al. (New York: Pantheon Books, 1975), 18Google Scholar(arguing that English criminal law served the interests of the ruling class and noting that “[al]most all” of the 150 capital statutes adopted by Parliament from 1688 to 1820 “concerned offences against property) with Langbein, “Shaping the Eighteenth-Century Criminal Trial,” 47 (arguing that English criminal law served the interests of a broad range of persons but agreeing that “offenses against property … constituted the characteristic component of the Old Bailey caseload”).

10. See Beattie, J. M., Policing and Punishment in London, 1660–1750: Urban Crime and the Limits of Terror (Oxford: Oxford University Press, 2001), 25Google Scholar n. 62 (citing Peter King, “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], 45Google Scholar). Similarly, Beattie's evidence from eighteenth-century Surrey demonstrates that prosecutions for simple larceny accounted for the vast bulk of property-related cases at the assizes and quarter sessions—comprising over 70 percent of indictable property offenses between 1740 and 1802. See Beattie, J. M., Crime and the Courts in England 1660–1800 (Princeton: Princeton University Press, 1986), 181–82Google Scholar, table 4.7. See also King, , Crime, Justice, and Discretion, 137Google Scholar, table 5.3 (finding that indictments for grand and petty larceny accounted for 66.4 percent of indictments for property crime in Essex from 1791 to 1800).

11. East, Edward Hyde, A Treatise of the Pleas of the Crown (London: A. Strahan, 1803), 2:553Google Scholar. See also Hawkins, William, Pleas of the Crown 1716–1721 (1716; reprint, ed. Glazebrook, P. R. [London: Professional Books, 1973]), 1:89–95Google Scholar.

12. Starkie, Thomas, A Practical Treatise on the Law of Evidence, and Digest of Proofs, in Civil and Criminal Proceedings, 2d Am. ed. (Boston: Wells & Lilly, 1828), 2:824Google Scholar.

13. For discussion of the ways that summary proceedings addressed these problems in the pretrial process, see Bruce P. Smith, “Summary Justice and the Myth of Private Prosecution in England” (paper presented at the annual meeting of the North American Conference on British Studies, Portland, Ore., October 2003). On the difficulties of detecting thefts, see Colquhoun, Patrick, A Treatise on the Commerce and Police of the River Thames (1800; reprint ed. [Montclair, N.J.: Patterson Smith, 1969]), 87Google Scholar(“the pillage is often not discovered until the articles are wanted”); on the reluctance of victims to prosecute, see King, Crime, Justice, and Discretion, 23 (“Uppermost in most victims' minds once the crime had been discovered was the desire to get their goods back as quickly as possible”); on the distaste for capital sanctions, see Andrew, Donna T. and McGowen, Randall, The Perreaus and Mrs. Rudd: Forgery and Betrayal in Eighteenth-Century London (Berkeley: University of California Press, 2001), 24Google Scholar(observing that “[a] prosecutor might experience uneasiness at the thought of hurrying an acquaintance to his death and a sensitivity to the judgments his neighbors might make”); and on the hurdles caused by the grand jury, see Beattie, , Crime and the Courts, 402Google Scholar, table 8.1 (“Grand Jury Verdicts in Surrey by Court of Trial, 1660–1800”) (demonstrating that grand juries in Surrey returned verdicts of ignoramus in over 11 percent of cases involving capital property offenses and over 17 percent of cases involving noncapital property offenses).

14. Understandably, prosecutions supported by direct, eyewitness testimony tended to fare better at the Old Bailey than those supported by indirect, circumstantial evidence. Based on data from 1780, George Fisher has argued that defendants who faced “pure circumstantial evidence” were approximately twice as likely to be acquitted as those who confronted sworn eyewitnesses. Fisher, “The Jury's Rise as Lie Detector,” Yale Law Journal 107 (1997): 644Google Scholar.

15. Thomas Cox, OBSP (1803, 3d sess.), Case No. 214.

16. William Jolly, OBSP (1801, 1st sess.), Case No. 31.

17. Jonathan Boothman (aka George Rhode), OBSP (1803, 5th sess.), Case No. 442. Wherries were craft used on the Thames to transport goods from larger ships. See Colquhoun, , Treatise (River Thames), 14Google Scholar.

18. Colquhoun, , Treatise (River Thames), 14Google Scholar.

19. James Smith, OBSP (1801, 1st sess.), Case No. 20 (emphasis added).

20. East, , Treatise, 2:651Google Scholar.

21. With the aid of the Old Bailey Sessions Papers Online, I am currently engaged in a quantitative study of this phenomenon. I am indebted to Joanna Innes and an anonymous reviewer for Law and History Review for suggestions concerning this subject.

22. Samuel Thomson, OBSP (1803, 2d sess.), Case No. 145.

23. John Stedman, OBSP (1803, 3d sess.), Case No. 186 (capitalization in original).

24. Writing in 1820, the French observer Cottu noted that “[i]f the evidence is not sufficiently strong, the judge seldom waits for the verdict, and is the first to announce that the prisoner must be acquitted.” Cottu, Charles, On the Administration of Criminal Justice in England; and the Spirit of the English Government (London: R. Stevens, 1822), 98–99Google Scholar(cited in John H. Langbein, “The Historical Origins of the Privilege Against Self-Incrimination at Common Law,” Michigan Law Review 92 [1994]: 1070 n. 101).

25. Richard May, OBSP (1803, 3d sess.), Case No. 191.

26. Gurney also criticized the servant for cutting his client with a sword:

27. Thropp, OBSP (1803, 6th sess.), Case No. 499.

28. Contrast the challenges posed by the current scourge of automobile theft in the United Kingdom, which, according to a recent Home Office estimate, accounts for roughly 25 percent of recorded crime. The use of VIN numbers and Automatic Number Plate Recognition, among other detection tools, has led to a roughly 70 percent recovery rate for stolen cars. See “Tackling Vehicle Crime: A Five Year Strategy,” http://www.crimereduction.gov.uk/vrcat2.htm#chap1. Compared to rope, wood, or metal, the sheer variety of styles, colors, and model years of automobiles no doubt also assists recovery efforts.

29. For a sensitive treatment of these issues in an earlier period, see Herrup, Cynthia B., The Common Peace: Participation and the Criminal Law in Seventeenth-Century England (Cambridge: Cambridge University Press, 1987), 79CrossRefGoogle Scholar(noting that “[t]he identification of stolen articles was a persistent problem”).

30. King, , Crime, Justice, and Discretion, 22Google Scholar.

31. Ibid., 21, table 2.1 (“Detection Methods, Essex Quarter Sessions Depositions [Larceny Only], 1748–1800”).

32. R. J. B. Knight, “Pilfering and Theft from the Dockyards at the Time of the American War of Independence,” Mariner's Mirror 61 (1975): 215CrossRefGoogle Scholar, 221 (internal quotation removed).

33. Starkie, , Law of Evidence, 2:840Google Scholar(emphasis in original). On Starkie's significance, see Allen, C. J. W., The Law of Evidence in Victorian England (Cambridge: Cambridge University Press, 1997), 20–23Google Scholar.

34. Starkie, , Law of Evidence, 2:841Google Scholar(emphasis added).

35. See generally, McCormick on Evidence, ed. Cleary, Edward W., 3d ed. (St. Paul, Minn.: West Publishing Co., 1984), 366Google Scholar.

36. For a brief treatment of the doctrine's historical origins, see David A. Moran, “In Defense of the Corpus Delicti Rule,” Ohio State Law Journal 64 (2003): 817–54Google Scholar.

37. United States v. Bryce, 208 F.3d 346, 354 (2d Cir. 1999).

38. Hale, Matthew, Historia Placitorum Coronae, (1736; reprint, ed. Glazebrook, P. R. [London: Professional Books], 1971), 2:290 (emphasis added)Google Scholar.

39. Ibid. Hale apparently relied on two cases: (1) a 1611 case from Warwickshire, cited in Coke's Third Institute, in which an uncle was executed for the murder of his niece, who later returned; and (2) a case that he believed to have arisen in Staffordshire, whose details are unknown. See Wigmore, John Henry, Evidence in Trials at Common Law, ed. Chadbourn, James H. (Boston: Little, Brown, 1978), 7:545Google Scholar [hereafter “Wigmore on Evidence”]. As suggested by Wigmore, the latter case may have been that of the Perry family, three of whom were convicted and executed in Gloucestershire in 1660 for the death of William Harrison, the steward of Lady Campden. Harrison had failed to return from a local round of tax collecting and was thought to have been murdered. He ultimately returned to England after the executions, claiming to have been abducted, forced onto a sailing vessel, and sold into slavery in Turkey. See Perrys' Case, 14 How. St. Tr. 1312 (1660). For additional details of these bizarre events, see Phillipps, S. M., Famous Cases of Circumstantial Evidence; with an Introduction on the Theory of Presumptive Proof (New York: J. Cockcroft, 1875), 50–52Google Scholar, and Bruce P. Smith, “The ‘Campden Wonder' and the Problem of the Missing Body” (paper presented at the annual meeting of the American Society for Legal History in Washington, D.C., November 2003).

40. Blackstone, , Commentaries, 4:352Google Scholar.

41. Ibid.

42. Thus, Leonard MacNally affirmed in 1802 that “[a] defendant should never be convicted for stealing the goods of a person unknown, merely because they are found in his possession, and he refuses to give an account how he came by them; unless there are due proofs made that a felony was committed of these goods.” MacNally, Leonard, The Rules of Evidence on Pleas of the Crown, Illustrated from Printed and Manuscript Trials and Cases (Dublin: H. Fitzpatrick, 1802), 2:580Google Scholar. A year later, East observed that “in prosecutions for stealing the goods of a person unknown, some proof must be given sufficient to raise a reasonable presumption that the taking was felonious … for it is not enough that the prisoner is unable to give a good account how he came by the goods.” East, , Pleas of the Crown, 2:651Google Scholar.

43. Wigmore on Evidence, 7:546.

44. R. v. Dredge, 1 Cox's Criminal Cases 235 (1845) (cited in Will, Arthur P., A Treatise on the Law of Circumstantial Evidence Illustrated by Numerous Cases [1896; reprint ed., Littleton, Colo.: Fred B. Rothman, 1982], 209)Google Scholar.

45. The summary is from State v. Hodge, 50 N.H. 510, 511 (1869), a case from the New Hampshire Supreme Court that surveyed Anglo-American law on the evidentiary significance of a defendant's unexplained possession of goods proven to have been stolen.

46. 3 Car. & P. 600 (Hereford Assizes, 1829), in Carrington, F. A. and Payne, J., Reports of Cases Argued and Ruled at Nisi Prius, in the Courts of King's Bench & Common Pleas, and on the Circuit; from the Sittings After Trinity Term, 1827, to the Sittings After Easter Term, 1829 (London: S. Sweet, 1829), 3:600Google Scholar.

47. 3 Car. & K. 318 (Essex Summer Assizes, 1852), in Carrington, F. A. and Kirwan, A. V., Reports of Cases Argued and Ruled at Nisi Prius, in the Courts of Queen's Bench, Common Pleas, & Exchequer; Together with Cases Tried on the Circuits, and in the Central Criminal Court; from Hilary Term, 6 Vict. to Trinity Term, 8 Vict. (London: S. Sweet, 1845), 3:318Google Scholar.

48. For example, the rules surrounding proof of simple larceny covered nearly 150 pages of East's 1803 treatise. See East, Treatise, 2:554–699. For discussion of these complexities, see, for example, Hall, Jerome, Theft, Law and Society (Boston: Little, Brown, 1935Google Scholar) and Fletcher, George P., “The Metamorphosis of Larceny,” Harvard Law Review 89 (1976): 469–530CrossRefGoogle Scholar.

49. May has estimated that defense counsel appeared in only 26 percent of cases at the Old Bailey in 1805. See May, , The Bar and the Old Bailey, 35Google Scholar, table 1. Detailed information about acquittals is generally lacking for two reasons: first, trial juries traditionally have not disclosed the reasons for their verdicts; and, second, the Old Bailey Sessions Papers in the late eighteenth and early nineteenth centuries tended to give especially short shrift to cases resulting in acquittals. “Except between 1779 and 1787 and perhaps after 1792, the late-century Sessions Paper[s] reported most cases that ended in acquittal in summary fashion only—reciting the indictment and the result, but omitting the evidence.” Fisher, “Jury's Rise,” 640 n. 294 (italics omitted).

50. I am indebted to an anonymous referee for Law and History Review for emphasizing this point to me. For incisive studies of the personnel and procedures of the Middlesex Quarter Sessions in the late eighteenth century, see Norma Landau, “Indictment for Fun and Profit: A Prosecutor's Reward at Eighteenth-Century Quarter Sessions,” Law and History Review 17 (1999): 507–36CrossRefGoogle Scholar;idem, , “The Trading Justice's Trade,” in Law, Crime and English Society, 1660–1830, ed. Landau, Norma (Cambridge: Cambridge University Press, 2002), 46–70Google Scholar; and idem, , “Appearance at the Quarter Sessions of Eighteenth-Century Middlesex,” London Journal 23/2 (1998): 30–52Google Scholar.

51. Beattie, , Crime and the Courts, 411Google Scholar, table 8.3 (“Trial Jury Verdicts in Surrey [Quarter Sessions and Assizes Together], 1660–1800”). Similar rates of acquittals in property-related cases have been calculated for other English jurisdictions. See King, , Crime, Justice, and Discretion, 231–42Google Scholar, 247–49 (discussing the joint contribution of the jury unanimity rule, jury nullification, and juror “independence” to acquittal rates) and Gwenda Morgan and Rushton, Peter, Rogues, Thieves and the Rule of Law: The Problem of Law Enforcement in North-East England, 1718–1800 (London: UCL Press, 1998), 69Google Scholar(finding that 20 percent of indictments for larceny in Northumberland “fell by the wayside” because of defects in the indictment and other factors).

52. My reconstruction of Murray's case is primarily drawn from letter books at the London Metropolitan Archives (LMA) recording correspondence between the Thames Police Office and the Home Office. See Letter Books of Magistrates at Thames Police Office, Wapping, 1804–42, shelfmark PS.T/1/Letter books/1–5 (microfilm X83/1–2) [hereafter Thames PO Letter Book]. (I am grateful to Louise Falcini for sharing with me her transcriptions of these letter books.) Additional details on the arrest are included in the Daily Police Report, a daily report of activities in the metropolitan police offices that exists in the National Archives in a series from 1828 to 1839. See HO 62, Home Office: Daily Reports from Metropolitan Police Offices (1828–39). The Report noted that “Edward Bloxham and Thomas Murray, [were charged] with unlawfully possessing, at Saint Giles, four hundred weight of lead, which had been stolen.” Daily Police Report, 24 October 1836, HO 62/18. “Execution Dock” referred to the location between Wapping New Stairs and King Edward's Stairs at which “pirates, mutineers, and other seafaring men” were hanged from the late sixteenth until the mid-nineteenth century. See Rediker, Marcus, Between the Devil and the Deep Blue Sea: Merchant Seamen, Pirates, and the Anglo-American Maritime World, 1700–1750 (Cambridge: Cambridge University Press, 1987), 24–27Google Scholar.

53. William Ballantine and Thomas Clarkson to Samuel March Phillipps (Under-Secretary of State for Home Affairs), 6 December 1836, Thames PO Letter Book. The records do not identify the individuals—described as “officers”—who actually apprehended Murray and Bloxham, though it seems likely that an officer (or officers) assigned to the Thames Police Office made the arrests. In the late 1830s, the Thames Police Office employed roughly seventy constables and thirty-one supervising “surveyors.” On the staffing of the Thames Police Office, see Sir Leon Radzinowicz, A History of English Criminal Law and its Administration from 1750, vol. 2, The Clash between Private Initiative and Public Interest in the Enforcement of the Law (New York: Macmillan, 1957), 529–32Google Scholar. Police officers appointed under the Metropolitan Police Act of 1829 went on duty in the parish of St. John, Wapping, in January 1830, and it is thus conceivable that Murray was arrested by a member of this force. In 1837, the police magistrate John Hardwick of the Lambeth Street Police Office observed that constables assigned to that particular office focused their efforts on cases of assault and expected the metropolitan police officers to arrest suspected thieves. See Emsley, Clive, The English Police: A Political and Social History, 2d ed. (London: Longman, 1996), 29Google Scholar(citing Parliamentary Papers 1837 [451] XII, Metropolis Police Offices, 603). For a useful diagram setting forth, on a parish-by-parish basis, the dates when the professional police became operational in the metropolis after 1829, see Reynolds, Elaine A., Before the Bobbies: The Night Watch and Police Reform in Metropolitan London, 1720–1830 (Stanford: Stanford University Press, 1998), 150–51, map 9.1CrossRefGoogle Scholar.

54. Ballantine and Clarkson to Phillipps, 6 December 1836, Thames PO Letter Book.

55. Ibid. This apparently was not Murray's first brush with the law. A petition in the Middlesex Sessions Papers (MJ/SP) reveals that, in late December 1832, Murray—then operating as a “Dealer in Marine Stores”—had been convicted summarily by a police magistrate for having “bought a certain Marine Store to wit Old Iron and neglect[ing] to make an Entry thereof in any Book of the Time when the same was bought.” See “The Humble Petition of Thomas Murray of No. 13 High Street in the [P]arish of Saint Giles in the Fields in the County of Middlesex Dealer in Marine Stores,” April 1833, MJ/SP/1833/04/032. Furthermore, in April 1833, Murray had complained at the Great Marlborough Street Police Office that John Gook and George Lowen, the latter a parish officer, had threatened “to take a Summons out” against him for an alleged violation relating to his ironmonger's cart, for which “the penalty would be £5.” Murray apparently paid Lowen four or five shillings to desist. See “Information of Thomas Murray before Henry Moreton Dyer, 17 April 1833, at Great Marlborough Street Police Office upon the Examination and in the presence and hearin[g] of John Gook and George Lowen then and there charged with a Misdemeanor,” 17 April 1833, MJ/SP/1833/05/029.

56. Ballantine and Clarkson to Phillipps, 6 December 1836, Thames PO Letter Book.

57. Bloxham was discharged. See Daily Police Report, 24 October 1836, HO 62/18. Reference to Murray's fine is contained in Phillipps to Thames Police Office, 2 December 1836, Thames PO Letter Book. On the police magistrates' assessment of Murray's testimony, see Ballantine and Clarkson to Phillipps, 6 December 1836, Thames PO Letter Book. Although Murray intimated that the attending magistrate had “ordered him to hold his tongue and refused to hear him,” the magistrates claimed in their letter to the Home Office that Murray was permitted to “make his defence” and that it was recorded by the office's clerk. Ibid.

58. “Petition of Lewis Leo, Praying the return of a Cart, forfeited by his servant on being Convicted of unlawful possession of Certain Metal,” March 1837, Police Courts and Magistrates: In-Letters and Returns [hereafter “Police Courts In-Letters”] HO 59/8 [hereafter “Leo Petition”].

59. Gregoire to Home Office, 6 March 1837, Police Courts In-Letters, HO 59/8.

60. My account of the search and Adams's arrest is drawn from a report of the proceedings in the Middlesex Sessions Papers. See MJ/SP/1838/02/048a. Mile End New Town developed in the seventeenth century as an extension of Spitalfields, the historic silk manufacturing district in east London. In the late 1830s, the district of Mile End New Town continued to consist largely of handicraft tradesmen, artisans, and laborers–many involved in the silk industry. For information on the history and demography of Mile End New Town, see East of London Family History Society, “Mile End,” available at http://www.eolfhs.org.uk/parish/mile_end.htm.

61. See “To the Secretary of State For the home Departmn [t]he Humble pittion [i.e., petition] of John William Adams,” 27 March 1838, Police Courts In-Letters, HO 59/9 [hereafter “Adams Petition”]. With rare exceptions, I have not corrected misspellings in the Adams Petition or in other original documents.

62. Ibid. (emphasis added).

63. The certificate of conviction is contained in the files of the Middlesex Sessions Papers. See “MIDDLESEX TO WIT. Be it Remembered, That on the Twenty sixth Day of December in the Year of our Lord One Thousand Eight Hundred and thirty seven, John William Adams is convicted before [u]s Harrison Gordon Codd and Robert Edwards Broughton Esquires, Two of Her Majesty's Justices of the Peace in and for the County of Middlesex. …” MJ/SP/1838/02/048a.

64. In the case of Murray, the Home Office instructed that his £5 and confiscated lead be returned to him. See Phillipps to “Magistrates, Thames Police Office,” 4 March 1837, Police Courts Entry Book, HO 60/3 (“I am … to request that you will restore the Lead to Mr Murray, and pay to him the sum of £5 which you are hereby authorized to charge in your Police Ac[c]ounts”). In response to an inquiry by the Home Office about Samuels, the convicting magistrate recommended that he be authorized “to deliver up the cart” but not the seized metal; based on this recommendation, the Home Office “sanctioned the return of the Cart,” but declined to “give such directions respecting the metal.” Phillipps to Leo, 8 March 1837, Police Courts Entry Book, HO 60/3. With respect to Adams, the magistrates noted that “part of the property in which [Adams had] proved an honest possession” had been “given up to him,” and that the remaining material in the possession of the magistrates “[was], in its present state, of but trifling value”; the magistrates stated that they would “have pleasure in restoring it to Adams' [f]amily, rather than in selling it for the public account, if [the Home Secretary] [would] be pleased to authorize it.” The Home Office consented, noting in pencil on Adams's petition that the “Magistrates say it is a case of distress & are disposed to restore the property.” “Report upon the Petition of John W. Adams, praying that some Silk detained by the Police may be restored to him….” Robert E. Broughton to Home Office, 29 March 1838, Police Courts In-Letters, HO 59/9. This is not to suggest that the proceedings were costless to the three defendants. On the toll taken on modern-day defendants tried in misdemeanor proceedings in terms of annoyance and humiliation, see Feeley, Malcolm M., The Process Is the Punishment: Handling Cases in a Lower Criminal Court (New York: Russell Sage Foundation, 1979)Google Scholar.

65. Entries in the Daily Police Report reveal a steady stream of persons convicted summarily for possession of suspicious goods. See, for example, Case of Roger Judge, Lambeth Street Police Office (August 19, 1836) (“Roger Judge, with stealing a piece of lead pipe, the property of some person unknown: stopped in Stepney.—Discharged from the felony; but committed to the House of Correction for one month, for unlawfully possessing”); Case of George Bailey, Thames Police Office (September 29, 1836) (“George Bailey, with unlawfully possessing in Chandos-street, thirteen pounds weight of lead, which had been stolen.—Convicted of a misdemeanor, and fined forty shillings”); Case of John Smith, Thames Police Office (November 26, 1836) (“John Smith, on re-examination, with stealing fifty-six pounds weight of lead, the property of some person unknown, at Westminster.— Discharged from this; but convicted of a misdemeanor, and fined five pounds”); and Case of Joseph Baldwin, Thames Police Office (December 24, 1836) (“Joseph Baldwin, with possessing, at Shadwell, one piece of iron, four pounds weight of copper, eight pounds of lead, four pounds of metal, twenty-five pounds of rope, and other articles, which had been stolen.—Convicted of a misdemeanor, and fined five pounds”). See Daily Police Report, HO 62/18.

66. Ballantine and Clarkson to Phillipps, 6 December 1836, Thames PO Letter Book.

67. Ibid.

68. Colquhoun, , Treatise (River Thames), 279Google Scholar.

69. See Landau, , Justices of the Peace, 246Google Scholar. Other discussions of this legislation include Smith, “Circumventing the Jury,” 78–119, and Lieberman, David, The Province of Legislation Determined: Legal Theory in Eighteenth-Century Britain (Cambridge: Cambridge University Press, 1989), 14–15CrossRefGoogle Scholar. On the “Bloody Code,” see, for example, Sir Leon Radzinowicz, A History of English Criminal Law and its Administration from 1750, vol. 1, The Movement for Reform 1750–1833 (New York: Macmillan, 1948), 3–8Google Scholar; Hay, “Property, Authority”; and Randall McGowen, “Making the ‘Bloody Code'? Forgery Legislation in Eighteenth-Century England,” in Law, Crime and English Society, 117–38.

70. 29 Geo. II, c. 30 (1756).

71. 2 Geo. III, c. 28 (1762), preamble. For discussions of appropriation from boats, docks, and wharves on the Thames, see Linebaugh, Peter, The London Hanged: Crime and Civil Society in the Eighteenth Century, 2d ed. (London: Verso, 2003), 390–96Google Scholar; Colquhoun, Treatise (River Thames), passim; and Knight, “Pilfering.” On the Bumboat Act and earlier efforts to regulate vessels on the Thames, see Radzinowicz, , History of English Criminal Law, 2:483–85Google Scholar. (The spellings “bum boat” and “bumboat” appear to have been used interchangeably by contemporary writers.)

72. For a lucid discussion of this measure in the context of other eighteenth-century efforts to combat embezzlement in the textile industry, see John Styles, “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, Michael (Cambridge: Cambridge University Press, 1983), 173–210CrossRefGoogle Scholar.

73. See Beattie, , Policing and Punishment, 26–27Google Scholar;idem, , Crime and the Courts, 269–70Google Scholar; Innes, “Prisons for the Poor;” and Paul Griffiths, “Contesting London Bridewell, 1576–1580,” Journal of British Studies 42 (2003): 314Google Scholar. See also Shoemaker, Robert B., Prosecution and Punishment: Petty Crime and the Law in London and Rural Middlesex, c. 1660–1725 (Cambridge: Cambridge University Press, 1991)Google Scholar.

74. Although there has been a surge of historical interest in the past decade in eighteenth-century Parliamentary legislation, much work remains to be done on the motivations for statutes conferring summary jurisdiction. For relevant general studies, see Julian Hoppit, “Patterns of Parliamentary Legislation, 1660–1800,” Historical Journal 39 (1996): 109–31CrossRefGoogle Scholar; Julian Hoppit, Joanna Innes, and John Styles, “Towards a History of Parliamentary Legislation, 1660–1800,” Parliamentary History 13 (1994): 312–21Google Scholar; Joanna Innes, “The Domestic Face of the Military-Fiscal State: Government and Society in Eighteenth-Century Britain,” in An Imperial State at War: Britain from 1689 to 1815, ed. Stone, Lawrence (London: Rout-ledge, 1994), 96–127Google Scholar; idem, “Parliament and the Shaping of Eighteenth-Century English Social Policy,” Transactions of the Royal Historical Society 40, 5th ser., (1990): 63–92; and Failed Legislation, 1660–1800: Extracted from the Commons and Lords Journals, ed. Hoppit, Julian (London: Hambledon Press, 1997)Google Scholar.

75. The desire of property owners for legislative protections may have been particularly strong with respect to materials traditionally deemed by the working classes to be customary entitlements. On customary entitlements, see, for example, Linebaugh, London Hanged; Peter King, “Gleaners, Farmers and the Failure of Legal Sanctions in England 1750–1850,” Past & Present 125 (1989): 116–50CrossRefGoogle Scholar;Shakesheff, Tim, “Wood and Crop Theft in Rural Herefordshire, 1800–60,” Rural History 13 (2002): 1–17CrossRefGoogle Scholar; and Bushaway, Bob, By Rite: Custom, Ceremony and Community in England, 1700–1880 (London: Junction Books, 1982Google Scholar). By contrast, based on a detailed study of responses to petty thefts in the worsted industry in Yorkshire, Richard Soderlund has concluded that manufacturers in that industry did not display “any dramatic transformation in their attitude towards property in the workplace.” See Richard J. Soderlund, “‘Intended as a Terror to the Idle and Profligate’: Embezzlement and the Origins of Policing in the Yorkshire Worsted Industry, c. 1750–1777,” Journal of Social History 31 (1998): 653Google Scholar. On the expressive impact of law, see McAdams, Richard, “A Focal Point Theory of Expressive Law,” Virginia Law Review 86 (2000): 1649–1729CrossRefGoogle Scholar.

76. On this theme, see Joanna Innes, “Statute Law and Summary Justice in Early Modern England” (1986). I am grateful to the author for making this unpublished paper available to me.

77. Writing in the mid-1750s, for example, Henry Fielding advocated that the Vagrancy Act of 1744 be extended to cover “suspicious persons.” Despite Fielding's aggressive anti-crime posture, he apparently believed that such persons did not fall comfortably within the contours of even that loosely interpreted act. See Nicholas Rogers, “Confronting the Crime Wave: The Debate over Social Reform and Regulation, 1749–1753,” 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 Press, 1992), 85Google Scholar. For studies discussing the increasing formalization of summary proceedings, see King, , Crime, Justice, and Discretion, 115Google Scholar; Innes, “Statute Law and Summary Justice,” 34; and Bruce P. Smith, “Summary Proceedings, Lawyerization, and Bounded Discretion” (paper presented at the annual meeting of the Midwest Conference on British Studies, Bloomington, Ill., October 2003); and idem, , review of Law, Crime and English Society, 1660–1830, Law and History Review 22 (2004): 648–50Google Scholar.

78. My analysis of the calendars for two sample years (1790 and 1792) reveals that roughly 65 percent of convictions returned by magistrates to the Middlesex Quarter Sessions involved some form of misappropriation. See Smith, “Circumventing the Jury,” 89, table 2.1. In 1790, Middlesex JPs returned 143 summary committals for illegal appropriation to the quarter sessions, a figure that likely understates their number. Ibid. For further discussion of the sources from which these data were drawn, see Norma Landau, “The Trading Justice's Trade,” in Law, Crime and English Society, 65–66. Although stipendiary magistrates appear to have been more active and may well have been more scrupulous than the traditional unpaid JPs on the Middlesex bench, it is by no means clear that the records of convictions returned by stipendiary magistrates to the Middlesex Quarter Sessions after 1792 were complete. Concerns about the record-keeping practices of the metropolitan police offices persisted into the nineteenth century, perhaps most infamously with respect to financial accounting. See, for example, John Harriott and John Longley to [Lord Hawkesbury], 17 April 1808, Thames PO Letter Book (noting that the Senior Clerk of the Thames Police Office was “called upon to explain his Accounts which appear to be erroneous”).

79. Colquhoun, , Treatise (River Thames), 47Google Scholar. Although Colquhoun had reason to exaggerate the effectiveness of the Bumboat Act because he hoped to see its provisions expanded to cover additional theft-related acts on and near the Thames, there is little reason to doubt the measure's overall importance to London's magistrates. On Colquhoun, see Sir Leon Radzinowicz, A History of English Criminal Law and its Administration from 1750, vol. 3, Cross-Currents in the Movement for the Reform of the Police (New York: Macmillan, 1957), 211–51Google Scholar.

80. Letter from James Traill to House of Commons Select Committee on Metropolis Police Offices, 1 December 1837, in Report from Select Committee on Metropolis Police Offices; with the Minutes of Evidence, Appendix and Index, 1837–38 (Shannon: Irish University Press, 1970), 218Google Scholar, appendix, no. 14 [hereafter “Traill Report”].

81. 5 Geo. IV, c. 83, § 4 (1824).

82. Traill Report, 218.

83. “A Return of the number of Persons charged with Felony and also of the number of Persons charged with Misdemeanors under the [Vagrancy Act of 1824] and [the Police Act of 1833],” Thames PO Letter Book, PS.T/1/Letter book/3.

84. Ibid.

85. Although Linebaugh has argued that crises in the nature of capitalist production in the eighteenth century led to a dramatic shift in attitudes among the propertied classes to perquisites and customary entitlements, he fails to provide an adequate explanation for why criminal justice administrators opted for summary proceedings as opposed to different types of proceedings. See Linebaugh, London Hanged. Here, as always, Beattie's insight is valuable: “[W]e need to resist taking the view that the responses inspired by the problems of urban crime were in any sense inevitable…. Rather, it is more useful to ask why some options were chosen among those that might have been available and not others—and to place them in as wide a social, cultural, economic, and political context as possible.” Beat-tie, Policing and Punishment, 4.

86. See above, note 19.

87. 6 Geo. III, c. 48 (1766). On the 1766 act, see Radzinowicz, , History of English Criminal Law, 1:485Google Scholar.

88. Some sense of the documents accompanying transactions between London-area merchants can be gleaned from Lord Mansfield's trial notes in the case of Reynolds v. Goff (1772), an action for trover involving the delivery of a quantity of oil. Mansfield's notes indicate that a “bill of parcels,” a “receipt,” and the provision of notes by the purchaser all existed to document the transaction. See Oldham, James, The Mansfield Manuscripts and the Growth of English Law in the Eighteenth Century (Chapel Hill: University of North Carolina Press, 1992), 2:1203–4Google Scholar.

89. Before “the arrival of the lawyers,” as Langbein notes, “[t]he defendant's refusal to respond to the incriminating evidence against him would have been suicidal.” Put differently, “[w]ithout counsel, the testimonial and defensive functions were inextricably merged, and refusing to speak would have amounted to a forfeiture of all defense.” Langbein, “Historical Origins,” 1048. For similar reflections on the fate of the “silent defendant,” see Witt, John Fabian, “Making the Fifth: The Constitutionalization of American Self-Incrimination Doctrine, 1791–1903,” Texas Law Review 77 (1999): 828Google Scholar.

90. Langbein, “Historical Origins,” 1048. 91. On the significance of the Prisoner's Counsel Act, 6 & 7 Will. IV, c. 114 (1836), see May, , The Bar and the Old Bailey, 197–200Google Scholar; idem, “Reluctant Advocates: The Legal Profession and the Prisoner's Counsel Act of 1836,” in Criminal Justice in the Old World and the New: Essays in Honour of J. M. Beattie, ed. Smith, Greg T., May, Allyson N., and Devereaux, Simon (Toronto: University of Toronto Centre of Criminology, 1998), 183–207Google Scholar; and Cairns, , Advocacy, 85–86, 176–78Google Scholar.

92. Langbein, “Historical Origins,” 1056–57. On the development of the standard of proof “beyond a reasonable doubt,” see sources cited in note 6.

93. Langbein, Origins of Adversary Criminal Trial, 6 (citing Cottu, On the Administration of Criminal Justice in England, 88, 105).

94. On the difficulties faced by suspects obliged to defend themselves, see Beattie, , Crime and the Courts, 350–51Google Scholar, and Langbein, , Origins of Adversary Criminal Trial, 56–57Google Scholar.

95. R. v. Burton, Dears. Cr. C. 282 (1854) (cited in Wigmore on Evidence, 7:547).

96. Ibid.

97. For further discussion of the activities of lawyers in the police offices, see Smith, “Circumventing the Jury,” 214–30.

98. In this regard, Bill Stuntz's description of the historical evolution of the substantive criminal law in America is highly suggestive. “Suppose a given criminal statute contains elements ABC; suppose further that C is hard to prove, but prosecutors believe they know when it exists. Legislatures can make it easier to convict offenders by adding new crime AB, leaving it to prosecutors to decide when C is present and when it is not. Or, legislatures can create new crime DEF, where those elements correlate with ABC but are substantially easier to prove. Prosecutors can continue to enforce the original crime, but more cheaply, by enforcing the substitutes.” Stuntz, William J., “The Pathological Politics of Criminal Law,” Michigan Law Review 100 (2001): 519CrossRefGoogle Scholar. See also Markus Dirk Dubber, “Policing Possession: The War on Crime and the End of Criminal Law,” Journal of Criminal Law & Criminology 91 (2001): 829–996CrossRefGoogle Scholar.

99. 32 Geo. III, c. 53 (1792).

100. The three statutes were the Juvenile Offenders Act of 1847, 10 & 11 Vict., c. 82 (1847), the Juvenile Offenders Act of 1850, 13 & 14 Vict., c. 37 (1850), and the Criminal Justice Act, 18 & 19 Vict., c. 126 (1855). In all instances, consent of the defendant to summary proceedings was required.

101. Hodge, 50 N.H. at 517–18. Courts and legal commentators recognized, of course, that “the legitimate limits of the presumption” that a jury might draw from a defendant's unexplained possession might be “considerably overstepped” by trial judges through their traditional ability to comment on the evidence. Will, , Circumstantial Evidence, 79–80Google Scholar. The Hodge court itself acknowledged as much, observing that whether a presumption drawn from a defendant's unexplained possession was viewed as “[a] matter of fact or [a] matter of law was practically immaterial” when, in the early decades of the Republic, “the influence of the court upon the jury … [was] overwhelming.” Hodge, 50 N.H. at 520. As the century progressed, however, most American jurisdictions gradually restricted the ability of judges to comment on the evidence—further increasing the scope of juror decision making in cases involving suspected thefts. See Renée Lettow Lerner, “The Transformation of the American Civil Trial: The Judge, Silent,” William & Mary Law Review 42 (2000): 195–264Google Scholar; idem, “New Trial for Verdict Against Law: Judge-Jury Relations in Early Nineteenth-Century America,” Notre Dame Law Review 71 (1996): 505–53Google Scholar; Kenneth A. Krasity, “The Role of the Judge in Jury Trials: The Elimination of Judicial Evaluation of Fact in American State Courts from 1795 to 1913,” University of Detroit Law Review 62 (1985): 595–632Google Scholar; and Friedman, Lawrence M., A History of American Law, 2d ed. (New York: Simon & Schuster, 1985), 155Google Scholar. One must not underestimate, however, the ability of modern judges to guide the jury by questioning witnesses or by responding to testimony with facial expressions and gestures. See Michael Pinard, “Limitations on Judicial Activism in Criminal Trials,” Connecticut Law Review 33 (2000): 256–65Google Scholar.

102. Hodge,50 N.H. at 526 (internal citations omitted).

103. This is not to say that all American defendants suspected of petty theft reaped the benefits of the American jury's comparatively broad latitude to assess the implications of a defendant's unexplained possession of suspicious goods. It is conceivable that American judges, willing to defer to the jury's interpretation of the facts, granted fewer directed verdicts of acquittal. But if the judgment of a defendant's peers might not always turn out favorably for the accused, criminal proceedings in which juries assessed the facts relating to a defendant's unexplained possession were, on balance, likely to be more favorable to a defendant than ones in which the suspect needed to satisfy a skeptical and “case-hardened” police magistrate.

104. William Kinnard, John Longley, and Thomas Richbell to Home Office, 5 March 1821, Thames PO Letter Book. Referring to their “imperative duty” to make “such a number of Summary Convictions,” the magistrates urged that “no difficulties nor doubts ought to be thrown in the way of [these] powers” and that “the law upon which [summary convictions were] founded should be simplified as much as possible.” Ibid.

105. Colquhoun, Treatise (River Thames), 279. See also Provision VIII of “Summary view of a Bill for the more effectual prevention of depredations on the River Thames,” ibid., 674–76.

106. Traill Report, 219.

107. Parliamentary History of England 29:1466–67 (1792Google Scholar). On the Parliamentary debate over Clause D, see Radzinowicz, , History of English Criminal Law, 3:126–30Google Scholar.

108. Parliamentary History of England 29:1471–72 (1792)Google Scholar.

109. Ibid., 1473.

110. My search of the Old Bailey Sessions Papers Online for various combinations of “presumption” and “innocence” found only one such case. In 1791, Garrow, in defense of the alleged murderer George Dingler, argued that “every man is presumed to be innocent till proved guilty.” See http:hri.shef.ac.uk/db bailey/gtrial.jsp?id=t17910914–1&orig=k&s_hil=presumed. The case is discussed in Langbein, Origins of Adversary Criminal Trial, 265.

111. See above, note 6.

112. Styles, “Embezzlement,” 195. See also King, Crime, Justice, and Discretion, 103 (arguing that such statutes effectively reversed “the principle that the accused was innocent until proved guilty”).

113. Andrew Ashworth and Meredith Blake, “The Presumption of Innocence in English Criminal Law,” Criminal Law Review (May 1996): 310. (“An offence that requires a defendant to prove a defence is one that requires him or her [in certain circumstances] to establish innocence, and it may therefore be said to derogate from the presumption of innocence. The burden of proof does not lie on the prosecution in all respects.”)

114. See also Langbein, Origins of Adversary Criminal Trial, 266, n. 63 (noting that summary proceedings appear to have relaxed the “beyond-reasonable-doubt” standard of proof).

115. Colquhoun, Treatise (River Thames), 279.

116. R. v. Lambert, [2002] 2 A.C. 545 (H.L. 2001) (available in Lexis United Kingdom database).

117. Convention for the Protection of Human Rights and Fundamental Freedoms, art. 6(2).

118. Lord Steyn relied heavily on a recent study demonstrating that 219 of 540 indictable offenses triable in the Crown Court set forth “legal burdens or presumptions operating against the defendant.” Lambert, [2002] 2 A.C. 545, ¶32 (citing Ashworth and Blake, “Presumption of Innocence”).

119. Ibid., ¶¶ 32, 41.

120. In recent years, English criminal defendants have argued that other statutory presumptions violate Article 6(2) of the European Convention. See, for example, Sheldrake v. Director of Public Prosecutions, [2003] 2 All E.R. 497 (Q.B. Div'l Ct.) and R. v. Daniel, [2002] EWCA Crim. 959 (C.A. 2002) (available in Lexis United Kingdom database).

121. I am indebted to my colleague Richard McAdams for prompting me to think more carefully about this issue.

122. Traill Report, 218.

123. I am grateful to John Langbein for emphasizing this point to me.

124. For further discussion, see Douglas Hay, “Dread of the Crown Office: The English Magistracy and King's Bench, 1740–1800,” in Law, Crime and English Society, 19–45.

125. See Smith, “Circumventing the Jury,” 222–30.

126. Colquhoun, , Treatise (River Thames), 47–48Google Scholar.