Summary Conviction and the Development of the Penal Law

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.
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Smith argues as follows. By the mid-eighteenth century it had become increasingly difficult to convict putative thieves of the felony of simple larceny, for two reasons. First, there were the difficulties posed by rules of evidence, especially by rules requiring the prosecutor to convince the jury that the allegedly stolen goods were actually his. Second, there was the increasing likelihood that defendants would be aided by barristers, who would both insist that the court adhere to these rules and also use the arts of cross-examination to inform the jury of the weakness of the prosecutor's case. In response to these obstacles to conviction, Smith argues, Parliament passed statutes authorizing summary conviction for the mere possession of commonplace nondescript goods—goods such as lead and iron, silk and wool, rope and wood—if their possessor could not satisfactorily account for that possession.
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Smith's article is innovative: summary conviction has been little studied,1 and his article examines summary jurisdiction in relation to the higher courts, a perspective rarely adopted. The article is timely, for it builds upon recent analyses of Hanoverian trials for felony. And the article is provocative, both because its argument presents the Bloodless Code as a highly intrusive legal regime and because the era in which Smith sites this regime is also that in which, it has been argued, capitalism transformed workers' customary perquisites into thefts and their defense of their wage into crime.2
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Smith's argument identifies three questions as fundamental to the characterization of the Bloodless Code. First, its chronology: does the appearance of statutes authorizing summary conviction for "unexplained possession" accord with that of the intrusion of barristers into the trials for which these summary proceedings substituted? This comment argues that it did not. Second, the legal definition of the offenses these statutes addressed: were these offenses larceny? This comment argues that many of the activities addressed by these statutes were not larceny, or indeed felony. How, then, had the law addressed these activities in earlier eras? Did the statutes authorizing summary jurisdiction create offenses, as Smith's argument would imply? This comment argues that, in many instances, the activities over which these statutes gave summary jurisdiction to justices of the peace had earlier been subject to the jurisdiction of other bodies —bodies such as manors, guilds, companies, and town governments, bodies that no longer exercised that jurisdiction effectively. Finally, Smith's argument raises questions about the application of these statutes: was it as intrusive, indiscriminate, and widespread as his argument implies? This comment argues that it was not and therefore directs attention to the site providing much of Smith's evidence: the Thames Police Office. As this comment will suggest, Smith's evidence raises the possibility that the development of the justices' powers of summary jurisdiction was entwined with that of professional magistracy. If that is indeed the case, then unlike the Bloody Code, the Bloodless Code may be with us still.