Tuesday, August 23, 2005

Barristers? The Chronology of the Bloodless Code

The question of chronology appears not just in speculations about the Bloodless Code's present affects; it is at the heart of Smith's argument. According to Smith, Parliament turned to summary conviction for unexplained possession because the insertion of barristers into trials for felony was making the conviction of alleged thieves very difficult. In so arguing, Smith is building upon recent work by John Langbein, John Beattie, and Allyson May on criminal trial under the Hanoverians.3 As they show, in the eighteenth-century criminal trial the defendant was a major "testimonial resource." In defending himself, in responding to witnesses, in entering into an altercation with the prosecutor, the defendant provided the jury with information necessary to its verdict. As these scholars also show, the insertion of barristers into criminal trials resulted in limitation of the evidence deemed acceptable by the court, and in a reduction, and eventually the complete disappearance, of the evidence the defendant presented to the court.
Smith adds to this depiction by showing that barristers not only prohibited the presentation of some evidence and raised doubt about other evidence, but also insisted that yet another variety of evidence was a prerequisite for conviction. In particular, Smith emphasizes comments suggesting that a prosecution for larceny would fail if the prosecutor could not convince the jury that "goods found in the defendant's possession were actually the prosecutor's."4 It seems possible that this guideline was less fundamental to English law than Smith's argument allows. Indeed, in some circumstances—for example, when determination of the goods' possessor was legally complicated—an indictment would declare that stolen goods were the property of "persons unknown" and did so to insure that the indictment was legally sound.5 Barristers' insistence that prosecutors prove that the goods allegedly stolen were the prosecutors' goods therefore seems insufficient as an explanation for the creation of summary conviction as a substitute for trial for felony.
What then of barristers' other contributions to the trial—their exclusion of some evidence and interrogation of other evidence? Could this explain Parliament's creation of the offense of mere possession of certain goods? It might, if the era in which Parliament created these offenses was the era in which barristers inserted themselves into felony trials. However, Parliament passed statutes creating such offenses long before barristers appeared at the Old Bailey.
The first statute demanding that those found in possession of specified goods provide a "good account" or a "satisfactory account" of how they came into that possession seems to be the Destruction of Trees Act of 1663, which authorized summary conviction of people "having or carrying or any ways conveying, any Burthen or Bundles of any Kind of Wood, Underwood, Poles, or young Trees" who could not "give a good Account" of how "they came by such Wood."6 Similarly, the Deer Stealers Act of 1692 authorized the summary conviction of people who possessed venison but were not qualified to hunt and could not "give a good Account" of how they came by it, while the Game Act of 1693 authorized summary conviction of a person not qualified to hunt found in possession of game who could not give "a good Account how he came by" the carcass.7 And although the Woollen Manufacturers Act of 1703 does not explicitly authorize conviction for unexplained possession of the materials entrusted to workers during the manufacture of wood, linen, fustian, cotton, and iron, it seems likely that its enforcement entailed just such convictions.8 The chronology of the statutes authorizing summary conviction for the mere unexplained possession of specified articles therefore does not support the argument that such statutes appeared as a response to barristers' assumption of a role in trials for felony.
There is another reason why the insertion of barristers into felony trials does not explain the appearance of statutes authorizing summary conviction for possession of specified goods: the offenses addressed by many of these statutes had never been felonies. These offenses—if they were offenses under the common law—had been misdemeanors. According to law, barristers were prohibited from representing defendants in trials for felony, but as Beattie and Langbein have shown, judges began permitting such representation in the 1730s. In contrast, barristers were never prohibited from representing defendants in trials for misdemeanors. While we do not know when they first began to do so, it is evident that barristers were a familiar sight at Quarter Sessions, where most misdemeanors were tried, by the early seventeenth century.9 Examination of Smith's argument about the timing of the legislation authorizing summary conviction for unexplained possession therefore leads directly to examination of the offenses this legislation addressed.


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