Publication Date

1-1-2005

Document Type

Article

Organizational Units

Sturm College of Law

Keywords

Presumption of innocence, Burden of proof, English common law

Abstract

"When it is said that a defendant to a criminal charge is presumed to be innocent, what is really meant is that the burden of proving his guilt is upon the prosecution. This golden thread ... runs through the web of the English criminal law. Unhappily Parliament regards the principle with indifference - one might almost say with contempt. The statute book contains many offences in which the burden of proving his innocence is cast on the accused." (Glanville Williams, The Proof of Guilt: A Study of the English Criminal Trial (1955))

No principle in Anglo-American criminal law is more vaunted than the so-called "presumption of innocence:" the doctrine that the prosecution must both produce evidence of guilt and persuade the fact-finder "beyond a reasonable doubt." The claim that "every man is presumed to be innocent until he is proved guilty" has been described as "dear to the hearts of Englishmen" and as an omnipresent feature of English criminal law. In 1895, the United States Supreme Court declared the "presumption of innocence in favor of the accused" to be "the undoubted law, axiomatic and elementary" - a protection that "lies at the foundation of the administration of our criminal law." Befitting its lofty stature in Anglo-American legal culture, the 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 the presumption developed in the eighteenth century along with a series of procedural and evidentiary protections benefiting defendants tried at London's Old Bailey, including the right to counsel, the notion of the prosecution's "case," and the "beyond-reasonable-doubt" standard of proof. But how robust was the presumption of innocence in late eighteenth and early nineteenth century English criminal law? This article argues that many English criminal defendants in the late eighteenth and early nineteenth centuries did not benefit from a presumption of innocence but, rather, struggled against a statutory presumption of guilt. In the starkest cases, defendants labored under a presumption of guilt when charged with violating one of numerous statutes passed by Parliament during the 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 "summary proceedings," which dispensed with certain important procedural and evidentiary protections applicable in cases of larceny tried in the higher courts.

Unfortunately, historians still know comparatively little about summary proceedings - this, despite their critically important role in the 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 the challenges of securing convictions in the higher courts for the 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 the higher courts coexisted with a system of reduced protections for defendants tried summarily for misdemeanors.

Publication Statement

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Originally published as The Presumption of Guilt and the English Law of Theft, 1750-1850, 23 LAW & HISTORY REVIEW 133 (2005).

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