By: J. M. Beattie
| John Fielding succeeded his half-brother, the novelist Henry Fielding, as the leading magistrate in Westminster in 1754 in the midst of a crime wave in London. Over the previous six years, since the peace that had brought the war of Austrian Succession to an end, frequent reports of highway robberies around London and muggings on the streets of the capital had provided constant reminders, along with the high levels of executions at Tyburn, of the depth and seriousness of the crisis.1 Substantial rewards for the prosecution and conviction of robbers had failed to stem the tide.2 Nor had new legislation, deriving from the first enquiry ever held by a parliamentary committee into the problem of crime, diminished the danger on the streets.3 By the fall of 1753, with crime still apparently at an alarming height and a winter approaching that could only make things worse, the central government was ready to try new measures. It was in these circumstances that the Duke of Newcastle, the secretary of state, asked Henry Fielding to suggest what might be done. | 1 |
| Fielding had set up five years earlier as a magistrate in Bow Street, Covent Garden, in a house that had been occupied by Sir Thomas De Veil, who for more than a decade had been encouraged by the government with the proceeds of a sinecure to engage actively in the prosecution of criminal offenders.4 Henry Fielding was also supported by the government, though now with a more direct stipend of £400 a year. He had been preoccupied from his first days at Bow Street by crime in the capital and had developed strong views about its causes and how it might be diminished. In a long pamphlet published in 1751, An Enquiry into the Causes of the Late Increase of Robbers, he placed a good deal of the blame on the deteriorating behavior and growing insubordination of the poor. But he also criticized the way the criminal law was administered, the lack of help for victims of crime who wanted to discover their assailants and bring them before the magistrates, and the failure of the courts to impose exemplary punishments on a sufficient number of defendants. It was his conviction about the weakness of policing and prosecution that led Fielding in the winter of 1749–50, as reports increased of violence in the streets of London, to persuade a group of men, some of them constables of Westminster parishes, to band together to seek out and apprehend serious offenders and bring them to Bow Street for examination and commitment to trial.5 | 2 |
| In the event, Fielding found it difficult to sustain this initiative because his officers could not earn a sufficiently steady income from either state or private rewards to enable them, as Fielding said, ” to apply themselves entirely to the apprehending of Robbers….”6 He was well prepared when in 1753 he was asked to advise the government about the policing of London and how it might be improved. He had a plan readily in mind—in essence that the government provide him with a few hundred pounds beyond his own stipend to support his policing and prosecuting efforts. The money would be used to encourage rapid reporting of London offenses to Bow Street by offering to pay for their immediate advertising, to give financial support to his officers for investigating offenses and making arrests, and to sustain the work of his office more generally. His proposals were accepted, and by the early months of 1754 he had been given an initial £200.7 | 3 |
| By then, however, Fielding was seriously ill. He left England for Portugal in the summer and died soon after his arrival. His half-brother, John, who had been a member of the Westminster bench since 1751 and had assumed the leadership of the office even before Henry left the country, was given the same personal stipend from the Secret Service accounts as his brother had received. He also received initially the same annual £200 for policing and prosecution, a subvention that was doubled within a few years and then raised to £600 by the 1760s.8 This was not a massive sum, but it was sufficient to enable John Fielding to make the house in Bow Street even more than it had been under his brother and under De Veil the center of policing and prosecution in the metropolis. Despite the blindness that had afflicted him for more than a decade before he assumed leadership of the office, John Fielding would prove to be the most innovative magistrate of the eighteenth century.9 | 4 |
| The government’s financial support of John Fielding’s policing and prosecuting activities at Bow Street—modest though it remained during his tenure there (1754–1780)—marked a significant step in what had been for some decades a gradual infusion of public money into the criminal justice system. This had begun in a striking way in the 1690s, a decade of widespread economic distress. Prosecutions for property offenses in and around London ran at a very high level, particularly when the European war that England had joined after the Revolution of 1689 came to an end in 1697 and the forces were demobilized.10 Persistent concerns in Parliament about robbery and other serious offenses resulted in a series of statutes that offered rewards for the prosecution and conviction of several kinds of offenders, including £40 for the conviction of a robber, burglar, or coiner—a sum well above the annual income of a laborer.11 Such rewards may or may not have emboldened victims of robberies and burglaries to go to the trouble and expence of finding and prosecuting their attackers, as they were surely intended to do in a system that depended on the efforts of the private prosecutor.12 But they clearly had the effect of encouraging the activities of men known as thief-takers who took up prosecuting to earn some of this bounty. The corrupt behavior of these private thief-takers was to bring them into disrepute over the first half of the eighteenth century.13 But parliamentary rewards remained in place, providing the Fieldings with an opportunity to create a more institutionalized and more official force of detective policemen. | 5 |
| Even more significant for the future of criminal administration was the engagement of the central government and the resources it could provide. Generally speaking, ministers of the Crown had always left the administration of the criminal law to local authorities and the judges. But that was to change when a new regime was established in 1714 with the accession of the elector of Hanover as King George I. Threatened by enemies at home and abroad, the new Hanoverian government remained sensitive to domestic disturbances that might unsettle the stability of the regime. And, unlike previous governments, George I’s ministers—with the king’s evident support—made it clear by their actions that they regarded violent crime in and around London as a serious issue and that they were willing to commit public resources to deal with it. They created in the Transportation Acts of 1718 and 1720 the first penal sanction directly financed by the central government.14 And, in the face of increasing violence on the streets of London and on the highways around the capital, they sought to encourage its prosecution by offering in a royal proclamation in 1719 a huge supplementary reward of £100 (on top of the parliamentary £40) for the conviction of a robber in London.15 The government also brought public resources to bear on the administration of the criminal law by paying the prosecution charges in a number of felony cases, including fees to solicitors to prepare briefs and to barristers to argue them in court.16 | 6 |
| John Langbein has shown in a masterly account of the changing climate of prosecution in the early eighteenth century how the introduction of parliamentary rewards and the more active engagement of the government in the process of prosecution affected the trial of felonies at the Old Bailey. What had been perceived until then as a roughly balanced conflict in court between two equally unprepared amateurs—the victim of an offense and the accused defendant—was altered, he shows, by the involvement of solicitors in the management of prosecutions and the more professional preparation of cases. The sense of unfairness thereby created in court by the advantages accruing to the victim-prosecutor persuaded the high court judges to break the long-standing rule that had forbidden the accused to engage lawyers to help them in court. A small number of defense counsel were permitted to act for prisoners in the 1730s—not to conduct their whole defense, which was still to be managed by the accused themselves, but to cross-examine prosecution witnesses and in this way to restore some balance to the trial.17 | 7 |
| We have learned in recent work how profoundly trials in felony cases were transformed in the eighteenth century under these influences. There has been, on the other hand, little systematic work on the way London magistrates carried out their duties to conduct the pretrial procedures that laid the foundation for these trials before judge and jury. What magistrates were supposed to do when they received allegations that a felony had been committed had been set out in statutes of the reign of Mary I in the mid-sixteenth century. These required the justice to bring the victim and the accused before him, to take depositions in writing from those giving evidence for the prosecution, and to examine the accused, summarizing any statement he or she cared to make. These documents were to be sent forward to the appropriate court and—whatever his opinion might be of the plausibility of the evidence or the likelihood of a conviction being obtained—the magistrate was to ensure that a trial would take place by binding the victim in recognizances to prosecute and committing the defendant to gaol to await the ensuing sessions. The guilt or innocence of the accused was to be left entirely to the judge and jury.18 | 8 |
| Magistrates appear to have followed those rules in the late seventeenth century,19 and they continued for a long time to be advised in handbooks of magisterial practice that that was their wisest course in dealing with felony charges.20 But in the early decades of the eighteenth century the magistrates’ conduct of the pretrial process began to change in practice as a consequence of the more determined preparation of some prosecution cases. By the 1730s, magistrates can be found dismissing the charges against a number of defendants, especially in cases in which the prosecutor had not made the accusation on oath but only as a matter of suspicion.21 Magistrates were still far from conducting a pretrial hearing to determine whether there was sufficient evidence to send an accused felon to trial. Nor did justices in the early eighteenth century take on the kind of discretionary powers in dealing with felonies that they exercised in the case of petty criminal charges.22 But pretrial examinations in felony cases had become more complex by the second quarter of the eighteenth century than they apparently had been fifty years earlier and magistrates were more fully engaged by then in making decisions about the cases going forward to trial and the evidence being assembled.23 | 9 |
| The central government also encouraged some London magistrates to take up the prosecution of felonies more vigorously—to become engaged as investigators and examiners and not merely recipients of the evidence that victims could provide. The administration’s continuing concern about crime in the metropolis—and perhaps their concern too about the reputed low level of Westminster and Middlesex magistrates24—resulted in their identifying an active justice with whom the secretary and under-secretaries of state could consult on law and order issues and whom they could persuade to take up the prosecution of serious offenses. Such consultations were taking place in the 1720s;25 in the following two decades Thomas De Veil, who had been appointed to the commission of the peace in 1729 and moved to Bow Street a decade later to the house occupied after his death by the Fieldings, emerged as the leading Westminster magistrate with the government’s support and encouragement. He was not only knighted as a signal of their support, but also granted government funding for his clerk and the income from a sinecure for himself to enable him to commit himself fully to prosecution. De Veil’s vigorous pretrial examinations and his regular attendance at the Old Bailey in support of the prosecution of accused felons made his house in Bow Street a well-known magistrate’s office before Henry Fielding moved there two years after De Veil’s death in 1746.26 | 10 |
| The government’s more direct support for Henry and then John Fielding represented a further extension of its commitment of public resources to the administration of the criminal law. It arose from the anxiety among the public and in the government about violence in the capital in another post-war crime wave after 1748, and from the obvious failure of the £100 proclamation rewards that had proved to be not only expensive, but unsuccessful as a way of preventing crime and, on top of that, the source of serious corruption.27 The cabinet’s acceptance of the police plan of 1753, involving as it did not only a continuation of the stipend from government funds to Henry and then John Fielding personally, but a subvention directly for the support of their policing and prosecution activities, made it possible for John Fielding to create a magistrates’ office unlike anything that had gone before. | 11 |
| John Fielding built on his brother’s initiative to create a clearing house for information about offenses and suspected offenders by developing a clerical staff that gathered and stored such criminal information. The government’s annual grant also enabled him to use the London press in new ways to broadcast reports of crimes, descriptions of suspects, and offers of rewards—an information network that broadened over time to become by the early 1770s a system for the distribution and exchange of criminal intelligence across the country.28 | 12 |
| The government funding was also crucial to Fielding’s successful establishment of the body of officers that his brother had sought to organize at Bow Street—the first quasi-official detective policemen, who became known in time as the Bow Street runners. They remained a small group—never more than six or eight principal officers. But no magistrate had ever commanded the services of men who could be sent to investigate offenses, apprehend suspects, and in general support the efforts of victims of crime to bring perpetrators to be examined and prosecuted. The office funds gave the runners long-term stability since they provided a form of retainer that, with the addition of state rewards and fees from work for private prosecutors, was sufficient to encourage most of them to remain attached to the office for many years and thus to acquire experience and some expertise.29 | 13 |
| The runners played an important role in the work that was at the heart of John Fielding’s ambitions to improve the effectiveness of criminal prosecution in London. He agreed with Henry Fielding’s argument in his Enquiry that (among other reasons) crime flourished in the metropolis because victims were discouraged from seeking out and prosecuting those who attacked or stole from them and because the courts were too weak in dealing with those who were caught and prosecuted. If crime was to be deterred, he had concluded, the process of criminal administration needed to be tougher and more effective. What was required in the early stages of the process was rapid reporting by victims, a quick response by men capable of discovering and apprehending perpetrators, and effective action by the magistrates who were responsible for initiating criminal proceedings. Those intentions formed the central pillars of the plan Henry Fielding had put to the government in 1753. Extended and enlarged in practice, they remained at the heart of John Fielding’s policing and prosecuting activities over the following quarter century. | 14 |
| These practices at Bow Street are the subject of this essay, particularly Fielding’s efforts to strengthen the prosecution of serious offenses. His innovations, I shall argue, had a profound effect on the nature of pretrial procedures and on the settings in which justices managed the crucial first stage of criminal prosecution. John Fielding came to practice what I call as a shorthand “public justice,” by which I mean to underline not only his conviction that in strengthening prosecution he was acting in the public interest by enforcing the criminal law, but to emphasize his efforts to open the early stages of criminal prosecution to the public much more than they had ever been before. Fielding found ways to keep his house in Bow Street open for long and regular hours; and he created a court-like setting that attracted and accommodated a large audience for his examinations of suspected offenders. Bow Street was transformed in this way from being merely the house of a busy London magistrate into a magistrates’ court in which several justices served in rotation to keep the office open at stated hours every day. His example and encouragement led to the emergence of similar “rotation offices,” or “public offices,” in some of the busier parts of London, an institutional change that came to be confirmed and given financial support by statute in 1792.30 | 15 |
| Fielding’s purpose was to strengthen the prosecution process by engaging the public interest and encouraging victims of crime not only to report offenses, but to attend at Bow Street in the hope that they would be able to identify their assailants and so be able to add their evidence to prosecution cases being taken forward to trial at the Old Bailey. His determination to enlarge the magistrates’ role in the prosecution of serious crime in the capital and to send stronger cases to trial at the Old Bailey led him to create what was essentially a new stage in the pretrial procedure—a stage in which some accused felons, already committed to trial, were brought back to Bow Street to a special session held once a week at which they were “re-examined” before an audience in the hope that further evidence of their guilt would be produced. The impact of these special re-examination sessions was further magnified by Fielding’s success in encouraging the London press to attend and to provide their readers with a weekly report on his efforts as a “public servant” (as he thought of himself) to combat crime in the metropolis. The character and consequences of John Fielding’s increasingly public management of pretrial process at Bow Streets are the central issues of this essay. | 16 |
| 1. Public Justice. | |
| Bow Street was not the first so-called “rotation office” in the metropolis that could be kept open daily at regular hours because a group of justices of the peace agreed to sit in turn as the presiding magistrate. The twenty-six aldermen of the City of London were forced to come to such an arrangement in 1737 because of the increasing reluctance of so many of their number to take on magisterial duties: faced with a complete breakdown of judicial services in the City they agreed to a rota under which each would sit for a day in turn in a gallery in Guildhall that was open to the public at stated hours every day of the week.31 This may have provided a model for Fielding, though his rotation system was created under different circumstances and with a very different purpose in mind. The City rotation was a response to administrative necessity. Fielding sought to increase the number of magistrates who could be counted on to serve at Bow Street as a way of making it easier for victims to find a magistrate—to enable them to lay charges, get help finding their attackers, and uncover the evidence that would lead to a conviction and the possible return of their stolen goods. He also wanted to attract the public more broadly—both victims who might spot those who had robbed them or stolen their goods and simply the curious, as a way presumably of engaging support for his policing enterprise. | 17 |
| From his earliest days in the office, Fielding had had the help of associate magistrates. He briefly shared his duties (and stipend) with Saunders Welch who had been chief-constable of Holborn and was appointed to the Westminster bench in 1755. Long a close friend of Henry Fielding’s, Welch was disappointed not to be treated by John Fielding as an equal—or to share equally the government’s £400 stipend. Fielding regarded himself as the natural successor to his half-brother and thought that Welch should be content with a secondary role and an annual allowance of £100. After a couple of years of squabbling, Welch agreed to move to his own magistrates’ office, eventually settling in Litchfield Street and retaining a stipend from the government.32 Fielding found other Westminster magistrates to share his work. John Spinnage acted occasionally in the 1750s and 1760s, taking Fielding’s place when he attended the Westminster sessions or when he went out to interview a suspect or engage in other enquiries. Other magistrates may have acted at Bow Street by the early 1760s since, at least on one occasion, he called his office “The Felony Rotation,”33 the implication being that he not only thought of Bow Street as the place where victims of felonies across the metropolis should come for help (as he made clear in advertisements setting out the services offered there) but that the office would be open when they did come because justices were sitting there in rotation. | 18 |
| That may have been a premature claim in 1762, but it reflected Fielding’s ambition to keep the office open as much as possible with the help of other Westminster magistrates. A more complete rotation of magistrates, supported by new funding from the government, was in place by the late 1760s, almost certainly at Fielding’s instigation. He had proposed the creation of paid magistrates as part of a “police plan” he put to George Grenville, the prime minister, in 1761—magistrates who would be free to devote themselves full-time to the work of criminal prosecution.34 That having failed, he encouraged justices in Westminster and other parts of the metropolis to work together voluntarily to create offices in which by taking turns they could provide magisterial service to the public at fixed times during the week.35 Rotation offices emerged over the next thirty years. Some were short-lived; others became more established, though even those were stronger at some periods than others, dependent as they were on the personalities of the magistrates and their willingness to serve. But over the next three decades the public was able regularly to find magistrates at a number of busy locations—particularly in Clerkenwell, to the north of the City, in the East End in Shoreditch, Whitechapel, and Shadwell, more erratically in Bloomsbury and other places in Westminster, and at St. Margaret’s Hill in Southwark, across the river Thames.36 | 19 |
| These offices were established in public places—in the Guildhall in Westminster, in the vestry room of a parish church—not in the private houses in which most magistrates had previously worked. From the beginning they were known as “public offices.” They also attracted numbers of thief-takers who became “attached,” or who attached themselves, to the offices and performed some of the tasks that Fielding’s runners carried out. Even the most stable of these rotation offices remained in Bow Street’s shadow, however, in large part because they lacked its great advantage: resources. It was the government’s subvention (increased for the purpose) that enabled Fielding to create a fully functioning and effective rotation system that was not matched by the other public offices until Parliament provided them financial support in 1792.37 Fielding had been able to find money in the office funds for John Spinnage, who was relieving him one day a week by 1765, occasionally more frequently, and who was soon thereafter in receipt of a stipend from the government.38 A more complete rotation of magistrates was in place by 1768 when Fielding persuaded the Grafton administration to increase its support by providing stipends to two other magistrates who had acted at Bow Street occasionally in the 1760s, William Kelynge and Thomas Kynaston. Henceforth, the three shared the daily work in ways that made it possible for Fielding to announce in 1768 that the Bow Street office would be open “every day from Ten to Two, and from Five to Nine.”39 | 20 |
| In reminding the public in an advertisement in the Gazetteer in 1771 about these regular hours, Fielding emphasized the public nature of the office. “The freest access [is] allowed to every body,” he wrote, “whether brought there by business or curiosity, so that any person may constantly have an opportunity of being present at the transactions of the Magistrates who sit there.”40 To encourage that attendance and to support a new system of examination emerging in the early 1770s, Fielding also found the resources to create a new courtroom at Bow Street in 1772 which took it well beyond anything the other public offices could manage. Up to that point the Fieldings and Sir Thomas De Veil before them had conducted magisterial business in what was essentially the parlor at Bow Street. Prints of c. 1742 and c. 1750 reveal the essentially domestic nature of the setting. They show the magistrate sitting in an armchair examining an accused. The only other furniture is a small table for a clerk. People waiting their turn—prosecutors, accused, constables, the curious—simply stood about.41 It was not a setting in which it would have been possible to create what John Fielding wanted: the attendance of an audience that might include the socially prominent, whose support and approval would be invaluable, as well as victims of unsolved offenses who might be drawn to pretrial proceedings by the prospect of identifying those who had attacked them or stolen their property. | 21 |
| Such a setting required seats and spatial separations, which is what the new courtroom provided in 1772. It was illustrated in The Malefactor’s Register, published a few years later, an image that has become very familiar. It is portrayed as very much Fielding’s court. He is seated in an armchair on a dais, the familiar black band across his eyes, dominating the proceedings at what was undoubtedly a session in which accused offenders were being re-examined. Associate magistrates, who always attended these sessions, and a clergyman had to be content with benches on either side of him. A clerk sits at a table in front of the dais to record the proceedings, and a prisoner stands to be examined some distance in front of him behind a bar. On both sides of the room and in a gallery running its length there are seats for prosecutors, witnesses, the public, and the press.42 | 22 |
| 2. Pretrial Process at Bow Street | |
| As a magistrate who encouraged the public to report offenses to his office and who sent men to investigate crimes and apprehend and bring in suspected offenders, Fielding was inevitably more concerned than most justices of the peace to collect and organize the evidence that would support the prosecution when he sent a case to trial at the Old Bailey. That certainly was his reputation. Victims of property offenses hoping to retrieve their stolen belongings, or at least to bring their assailants to justice, clearly thought that Bow Street offered the most effective help in the metropolis. The keeper of Newgate prison was exaggerating when he said in 1757 that he received “commitments from [Fielding] almost every day”—that is, prisoners committed to his gaol to await trial.43 But Fielding was certainly the most active magistrate in Middlesex. In his first decade in office, more than a third of the accused felons sent for trial at the Old Bailey from Middlesex were committed as a result of proceedings at Bow Street, the vast majority by Fielding himself. | 23 |
| That predominance became even more striking when the three-magistrate rotation system was fully in place by the late 1760s, for in the years 1767 to 1773 almost half of all Middlesex felony commitments originated in the Bow Street office. By the last years of the 1770s increasing numbers of commitments were being made by the magistrates in the other public offices—particularly Litchfield Street, Shoreditch, and Whitechapel—a pattern that was to continue and indeed to become more pronounced in the 1780s.44 But in Fielding’s day prosecutors were most likely to go to Bow Street with their complaints, and there can be no doubt about his leading role in organizing the evidence in many of the felony cases tried at the Old Bailey. After his death, Edward Sayer said that “no person will deny” that he had been the most active Westminster magistrate.45 That would have been clear to those familiar with the printed Proceedings of the court, in which his name was commonly invoked and the work of the Bow Street office frequently mentioned. John Langbein detected Fielding’s hand in the printed reports of half the cases tried in the October 1754 session in which the pretrial work of magistrates is noticed, a figure that reflects both the level of his activity and the fact that he dealt more frequently than other magistrates with the kinds of serious cases that the printer of the Proceedings was likely to feature.46 | 24 |
| Frequent notices in the Proceedings help to explain why Fielding acquired a wide reputation as an active and knowledgeable magistrate and why numerous private prosecutors, giving their opening evidence at Bow Street, said they had been advised to go to him, even if it meant a long journey across the metropolis. Magistrates at the other public offices may to some extent have been in competition with Bow Street: unlike Fielding and the other stipendiary magistrates who worked there, their incomes depended on the fees that arose from the paperwork required by the prosecution process.47 But his abilities were also recognized by other metropolitan magistrates who on occasion sent him cases that required knowledge and skill beyond their capacities; as a Shadwell justice said in advising a constable to take a suspect to Bow Street, “Sir John knew better what to do [in the matter] than he did.”48 The support available to the victim-prosecutor at Bow Street also helps to explain why the office became so dominant in the third quarter of the eighteenth century. No other magistrate in the metropolis could command the services of as experienced a group of men as the runners, whose help in finding and apprehending offenders might be provided gratis to private prosecutors if the Bow Street justices chose to send them, and whose testimony both at Bow Street and the Old Bailey could be crucial to the prosecution. Bow Street could also help by getting stolen goods advertised and getting handbills distributed immediately to the major pawnbrokers and other likely receivers, the cost of which might also be paid by the office. But the principal attraction that drew prosecutors to Bow Street in the 1760s and 1770s was almost certainly John Fielding’s reputation as an examiner, his ability to draw out prosecution evidence and uncover weaknesses in the responses of the accused, his capacity to frame and organize a strong and effective prosecution case. | 25 |
| The evidence of newspaper reports and of the printed Proceedings at the Old Bailey make it clear that Fielding was an active examiner. Sending strong cases to trial concerning the robbery, burglary, and larceny charges that preoccupied the Bow Street magistrates, day in and day out, meant establishing (where this was appropriate) the victim’s ability to identify the suspect as his or her assailant and uncovering evidence that linked defendants to the property alleged to have been stolen. The victims’ willingness to swear on oath to the identity of those they accused and to sign a deposition to that effect was an important issue, especially in robbery cases. A form of identity parade at Bow Street was frequently reported in trials. “At Sir John Fielding’s,” a prosecutor said in giving evidence at the Old Bailey, one man was brought up first into the room; the justice desired me to observe that man and see if I knew him or ever had seen him before. I went up to that man; I informed the justice he was not the man who had robbed me; the justice desired me to make stricter scrutiny. I went up to him again and still persisted that he was neither of the men who robbed me; then four persons were brought into the room, and out of these four, without hesitation, I picked the two prisoners, who, I am certain, were the two persons who committed the robbery, for at the time they committed the robbery I took particular notice of their faces….49“You take upon you to swear positively to his person?”, another man who had been robbed of his watch and money as he walked across the fields from Hampstead to St. Pancras was asked at the same session of the Old Bailey. “Yes,” he replied, “and his voice. I knew him directly as I saw him at Sir John Fielding’s…. I knew him by his person immediately. When he spoke I knew him by his voice.”50 | 26 |
| Such assertions made on oath were regarded as critical evidence, though they might be effectively countered in court. In the first of these cases, the jury acquitted both prisoners when witnesses provided persuasive alibi evidence; in the second, the victim’s positive identification, along with the indifferent character evidence given on behalf of the defendant, was sufficient to persuade the jury of the prisoner’s guilt. From time to time, a defendant tried to counter the force of such evidence by alleging that an identity test staged at Bow Street was fixed—that the victim had been persuaded to identify the defendant because the magistrates or the runners were out to get him. “Was he shown you by any body at Sir John Fielding’s?” a post boy who had been attacked by a mail-robber and who had identified his assailant at Bow Street was asked by prosecuting counsel anxious to rule out any such suggestions. “No,” he replied. “I went into the room where he and some more gentlemen were; I stood in the room some time; I heard his voice, and walked up to him.”51 | 27 |
| In the general run of offenses involving the taking of property, the most conclusive evidence of guilt was that which established a connection between the accused and the goods that had been stolen. Evidence that “traced [the property] home to the prisoner,” a judge said in 1784, was a “medium of proof” just as much as a victim’s identification of his or her attacker on oath.52 Magistrates’ examinations frequently focused on an accused felon’s ability to explain his or her possession of stolen property. Direct evidence of such possession, established by searches of the defendant’s person or lodgings, was obviously difficult to explain away. The runners frequently reported at the Old Bailey that they had found stolen goods as the result of searching defendants either before the magistrate or across the street at the “Brown Bear” public house, which they used as a kind of police station. And they also helped to establish the accuseds’ possession of stolen property by finding pawn tickets on them or in their lodgings and by bringing pawnbrokers to Bow Street to identify prisoners as the persons who had brought the goods to their shops.53 | 28 |
| One might presume that the preferred outcome of procedures set up to encourage and support the efforts of private prosecutors was that the guilty would confess. A critic said in 1773 that Fielding strove too mightily for confessions.54 But in fact there is little evidence of this, or at least of his doing so overtly. He would have known better than most magistrates that by mid-century the judges were increasingly unwilling to accept confessions obtained by force or favor. It was still possible in 1759 without apparent objection from the bench for a prosecutor to report at the trial of a servant she accused of stealing rings and money that the defendant had confessed before Fielding at Bow Street when she was told that she could keep the money if she did so.55 In another case at the same session, however, the circumstances surrounding a written confession obtained at Bow Street and presented as evidence at the Old Bailey were enquired into by the trial judge who wanted to know if it had been read over to the defendant before he signed it, whether it had been taken voluntarily and freely and without promises being made to him. In response to the last question, a witness said that, on the contrary, Fielding had cautioned the defendant that signing such a confession “would make against him.”56 | 29 |
| Judicial concerns about the way confessions were obtained at pretrial hearings were by then commonplace. Langbein has shown that by the early 1740s judges at the Old Bailey were beginning to enquire into the nature of confessions, that they did so more consistently over the following twenty years, and that by the 1760s the bench had adopted a rule that only confessions given freely and voluntarily would be allowed as evidence.57 Magistrates may have continued to induce some of those accused at Bow Street to confess by close questioning or by confronting them with incriminating evidence.58 And prisoners continued to assert at the Old Bailey that they had been bullied into confessing at Bow Street or had been promised more lenient punishment if they did so.59 But confessions were being too carefully scrutinized in the last decades of the eighteenth century for there to have been frequent intimidation or persuasion by promises of favor. By the 1780s, some judges would not accept confessions reported in oral evidence. When it was asserted in a case in February 1784 that the prisoner had confessed, Mr. Justice Gould said that he would not admit it: the law required, he said, that “it should be reduced into writing.”60 | 30 |
| Assertions that the defendants had acknowledged their guilt continued to be made by prosecutors and prosecution witnesses, including the runners.61 Presumably to ensure that confessions were acceptable to the judges, by the 1780s the Bow Street magistrates were using a printed form to record what suspects said at their examinations—not simply those who confessed, but the statements of all examinees. The form consisted of a printed paper that was headed: “Middlesex. The Examination of [blank] charged with [blank] by [blank] of the Parish of [blank] in the County of Middlesex and taken before me one of his Majesty’s Justices of the Peace for the County of Middlesex” with the date. The suspect’s statement then followed (and might go on to the back side), beginning with the printed words “who saith,” occasionally struck through to become “who confesseth” when he or she chose to admit their guilt and give an account of the crime. The statement was signed by the justice and witnessed either by the prosecutor or one of the runners.62 | 31 |
| One form of confession that was obtained on the understanding that a very considerable favor would follow was regularly accepted at the Old Bailey: that is, the confession of an accomplice to an offense he had committed with others and who admitted his guilt on the understanding that he would not be prosecuted (and might well also be given part of a reward) in return for the evidence that convicted his erstwhile associates. Accepting an offer to turn “king’s evidence,” as it was called, was left to the committing magistrates. It was a powerful instrument in the struggle to control especially serious crime, and it was frequently employed at Bow Street in the first half of the eighteenth century, having emerged in conjunction with the statutes that established the parliamentary rewards for the conviction of robbers, burglars, and coiners in the generation after the Revolution of 1689. But, like other confessions of guilt, it too had become subject to judicial control in the middle decades of the eighteenth century after the perception spread that the practice resulted in corrupt prosecutions and perjured testimony.63 The gradual adoption of a rule by the Old Bailey bench in the 1740s that the evidence of a Crown witness, uncorroborated by independent testimony, would not be sufficient for conviction, was an effort to remove an obvious source of unsafe verdicts. It was firmly in place by 1751 when Henry Fielding complained that the need to bring corroboration to the evidence of a confessed offender was making it difficult to convict robbers.64 But the magistrates’ ability to name one of a group of offenders as king’s evidence—provided he or she confessed before they were committed for trial—remained a potent weapon in dealing with crime in the metropolis. | 32 |
| Magistrates decided whether an offender would be granted Crown witness status, though at Bow Street, because the runners were so frequently involved in apprehending and interrogating suspects, the deal that persuaded someone to “squeak” (as it was termed in 1756) might be arranged under some compulsion at the “Brown Bear,” or in negotiation with an offender’s relatives, or in other ways.65 Sometimes it involved competition between offenders to get in first.66 But it was essential that a magistrate be involved, since it was his word—what one accused man called his “oath”—that gave the arrangement its standing with the courts.67 The judges at the Old Bailey might throw out cases in which the evidence of the accomplice was not corroborated to their satisfaction, or in which the arrangement had been arrived at improperly.68 But they understood the need to support a justice’s decision—his word once given—even if that meant forgiving an offender all previous crimes.69 In the famous case of Mrs. Rudd, Mansfield made it clear, however, that an offender who was admitted as the king’s witness was under an obligation to tell all that he or she knew about the offense.70 For their part the magistrates at Bow Street seem to have been cautious about admitting offenders as king’s evidence: on several occasions John Fielding refused to make such an award when an accused offender offered to give evidence for the Crown.71 | 33 |
| 3. Re-examinations at Bow Street | |
| John Fielding’s management of the pretrial process at Bow Street was designed to support the efforts of private prosecutors in felony cases. His growing reputation as a skilled investigator and examiner made Bow Street the leading center of criminal prosecution in the metropolis and, indeed, in the country, for his advice and the help of the runners were frequently sought by provincial magistrates.72 But what particularly distinguished Bow Street under Fielding was the way he expanded the pretrial process into a more extensive search for evidence than the law required. Under the system that had been in place for two centuries the expectation was that a magistrate faced with a charge of felony would take depositions of the victim and witnesses, examine the accused, and order their commitment to trial—disposing of the matter in one session. The absence of a key witness may have required an occasional second examination, but that was rare. The Fieldings saw in pretrial process an opportunity to build and strengthen prosecution cases by conducting more than one examination. Henry Fielding seems to have been the first magistrate to bring suspected felons whom he had committed to trial back to Bow Street to answer further charges or to be further questioned.73 He may have thought he was empowered to do so by a clause of the Disorderly Houses Act of 1752 that authorized magistrates to hold vagrants or persons suspected of committing a felony for a period no longer than six days “for further examination” to give overseers of the poor time to publish an advertisement (if they chose to do so) describing the man or woman being held and what they had been carrying when apprehended—an addition to magisterial authority Fielding had advocated.74 That may have provided some justification, but the re-examinations that developed at Bow Street had a larger purpose. John Fielding used them extensively and advertised them ahead of time in the hope of attracting victims of similar offenses to Bow Street who might spot their assailants and add their evidence to the prosecution case.75 | 34 |
| In his effort to convict the highwayman, William Page, in 1757, for example, Fielding announced his arrest in The Public Advertiser, along with accounts of his offenses and a list of the watches Page had pawned (information supplied by his accomplice, who had turned king’s evidence).76 A few weeks later a further notice in that paper announced that “Page will be re-examined before Justice Fielding, on Tuesday next at One o’Clock.”77 The point of such re-examinations was made explicit in the case of a gang of five footpads apprehended at the same time and accused of committing robberies in and around London. An accomplice had provided Fielding with the details of seventeen of their robberies—information about victims, locations, and property taken—and the re-examination was advertised as taking place on the same day as Page’s, “when all Persons that have lately been robbed are desired to attend.” The outcome, as another notice in the press a week later revealed, was that sufficient evidence had appeared at the Bow Street hearing to put these accused footpads to their trials.78 | 35 |
| By the late 1760s re-examinations became weekly events and brought the Bow Street magistrates’ court increasingly into the public eye. What had been an ad hoc system—a re-examination being announced whenever an appropriate suspect was to be returned to Bow Street on a particular day—became an established part of the Bow Street routine, with a session being held from 10 a.m. to 3 p.m. on Wednesday (and occasionally again on Friday) at which some of the suspects committed during the previous week were brought back to be faced once again with the evidence of their guilt. The regularity with which these sessions came to be staged was made possible by the stipends given to Kelynge and Kynaston. The addition of two stipendiary magistrates enabled Fielding to keep the Bow Street office open to the public every day at fixed times. The additional justices also enabled him to stage what was in effect a regular weekly petty session at which administrative business could be dealt with, but that was principally held—as Fielding said in thanking the prime minister, the Duke of Grafton, for the government’s financial support—”in Order to re-examine all such Prisoners as have been committed in the preceding Week.”79 In fact, not all prisoners were re-examined, and some of those coming before the magistrates on Wednesday mornings were there for the first time. But re-examining selected suspects was the main purpose of that weekly session. | 36 |
| These sessions may have had the incidental advantage from Fielding’s point of view of enabling him to maintain his leadership of the office. Having turned over some of the ordinary daily business to Kelynge and Kynaston, the Wednesday meeting allowed him to oversee the prosecution process and to ensure that at least in the case of defendants accused of the most serious felonies the strongest possible evidence had been collected and sent forward to the Old Bailey. It was a platform for his abilities as an examining magistrate, and it must have made him even better known than he had been across the metropolis. Publicity was crucial to the enterprise and Fielding went out of his way to attract the public and the press to these sessions—an ambition most clearly expressed in his decision in 1772 to create a court-like setting in the parlor at Bow Street.80 The new courtroom had seats for the public who were encouraged to come if they thought they might recognize some of the defendants or simply out of interest. Bow Street was frequently crowded on these occasions, especially when someone of note was to be re-examined—a highwayman who had attracted particular attention by his brutality or daring, a murderer who had killed in a nasty way, or an upper-class suspect like Mrs. Rudd. In a case of a well-known defendant, the newspapers would keep interest alive for days or weeks on end and Bow Street would be packed at every stage of the pretrial process.81 But even ordinary Wednesday sessions were often said to have drawn a large attendance. | 37 |
| From the beginning Fielding sought to attract the press to these sessions, even providing “the printer of a morning paper … with a desk and pen, ink and paper,” according to a critic who disapproved of the reporting of re-examinations.82 For their part the printer-publishers of London newspapers found in the re-examination sessions an attractive source of copy. From 1772 to the end of the decade (when, as we will see, powerful objections were raised against the publicity) London newspapers, daily and bi-weekly, provided accounts in their Thursday editions of the previous day’s session.83 If there had been little business of interest, these reports might be brief. But more often they included accounts of the evidence brought against a selected number of the accused being examined—accounts that occasionally occupied a full column or more in papers that typically devoted only a page or two (each with four columns) to domestic news. The reports of the re-examination sessions and the magistrates’ proceedings at Bow Street created pretrial publicity in ordinary felony cases on a scale never previously known and made abundantly clear the innovations introduced by John Fielding in his effort to mount effective prosecutions. | 38 |
| I take as an example of the publicity surrounding these proceedings an account in the General Evening Post for 8 April 1773. The main accused to be examined was Thomas Broadhead who had been apprehended the previous Saturday after he committed a highway robbery on Finchley Common. He was taken initially before Justice Wilmot in Shoreditch, who sent him on to Fielding because there had been “many informations made at the Public-office in Bow-street of robberies having been committed evidently by the same person, from his description, in the squares and streets at the West end of the town.” Broadhead was examined initially on Monday and brought up again at the Wednesday re-examination session, at which the magistrates worked hard to build a case against him—clearly because Fielding believed him to be responsible for several unsolved robberies, including an attack on the Hampstead stagecoach in the previous January for which someone else had recently been convicted at the Old Bailey.84 Press accounts suggest that Fielding tried to get him to confess to that robbery “for the sake of exonerating an innocent character from guilt.”85 Broadhead refused to do so. | 39 |
| The runners brought in victims of other as yet unsolved offenses that had been reported to the office. Two servants of Sir Francis Holbourne, alerted by the runners, swore that Broadhead was the man who had robbed their master and two ladies in St James’s Square two months earlier; they also claimed to be able to identify his horse and the pistol he was carrying when he was apprehended. A stable-keeper, attacked on Finchley Common in March, also attended and identified him as his assailant. Some victims of other robberies failed to do so. A Mrs. Steers told of a “daring robbery” committed in her own yard in January by a single highwayman, but she was not prepared to swear that Broadhead was the offender; nor was another robbery victim, who had been attacked two weeks earlier. Several other robbery victims identified him, though some only hesitantly and after being pressed by the magistrates. In the event Broadhead was committed to be tried on two indictments at the April session of the Old Bailey; one for robbing Holbourne, of which he was acquitted; the other for an attack on a man and women who were certain he was the highwayman who had stopped their coach on Finchley Common. He was convicted, condemned, and executed.86 | 40 |
| The Broadhead re-examination was typical of such sessions in attracting victims of earlier robberies who had been alerted to his arrest by the press or by the runners. Fielding was so satisfied with the good effects of his effort to bring victims of unsolved offenses to re-examination sessions that he boasted to a parliamentary committee in 1770 that “highwaymen cannot escape, upon account of [among other things] … the great number of prosecutors who always appear against them….”87 This was hyperbole. Not all such witnesses added damaging evidence, especially the kind that was so crucial in offenses that had involved confrontations—a positive identification by a respectable victim willing to swear on oath. But some did make such claims and others added weight to the charges by swearing to ownership of property found on the prisoner or that could be linked to him or her. At a Wednesday session in February 1775, for example, twelve witnesses appeared to give evidence against a man accused of committing robberies in Middlesex and Surrey; several identified purses and watches found in his lodgings. John Armer was similarly charged by victims of five robberies on the outskirts of London; one identified a stolen watch that was produced in court by a pawnbroker, who had taken it in pledge from the accused. Several other victims provided “presumptive” evidence against other accused, but “could not swear to their persons.”88 | 41 |
| An Essex case in 1775 provides not only a good example of pretrial disclosure of prosecution evidence, but an indication too of Bow Street’s reach across the metropolis and into the counties of the Home Circuit surrounding London. Newspapers on 5 January reported a burglary that had taken place two days earlier in Brentwood in Essex in which a householder had been badly beaten and a quantity of silver and linens taken. The burglary was committed in the middle of the night on a Tuesday. A message sent immediately to John Fielding, describing the offenders and the goods stolen, brought out the runners early the next morning, and by noon on Wednesday John Hutchins and William Claxton had been arrested and brought to Bow Street. They had been taken in Claxton’s house (along with the stolen goods) by John Clarke, one of Fielding’s men, who had gone there presumably because Claxton was well known to Bow Street, having acted as king’s evidence in a burglary trial at the Old Bailey two years earlier and (as the newspapers reported) having been frequently in custody before. Both suspects were thought to belong to a gang of highwaymen and housebreakers who had been active recently in Essex and other places around London. Hutchins and Claxton were examined when they arrived at Bow Street and held while further evidence was collected. At the re-examination session on the following Wednesday, 12 January, Hutchins was returned to court to face the magistrates, but not Claxton, who had apparently been discharged—perhaps in return for information, for in the course of that week Nicholas Bond, another runner, had been active in tracing Hutchins’s movements in Essex and had discovered that two other men had been involved in burglaries with him, one of whom, Laurence Wade, he had arrested and brought to London. A third man, Braban, remained at large. | 42 |
| The newspapers were full of the evidence produced at the Wednesday examinations on 12 January. Mr. Scatchard, the victim of the Brentwood burglary, identified Hutchins as one of the offenders and claimed ownership of the goods found at Claxton’s house. Bond described how he had traced the movements of the three suspects, where they had stayed in the days before the robbery, and how they had dispersed—bringing five witnesses to Bow Street to support his testimony. As a result of that session, Hutchins and Wade were remanded to take their trials at the next Essex assizes. But that was not the end of the investigation. In the course of the following week, Braban was arrested by Bow Street officers when he and two men called Tunks and Hines got into a scuffle with a landlady over a trunk Mrs. Braban had brought to a rented room. When the landlady, Ann Alien, insisted on inspecting the trunk, the men attempted to take it away by force. She was not to be intimidated, but followed them and raised the neighborhood, crying out “stop thief,” and sending her husband to bring the runners. Braban, Tunks, and Hines were brought before the justices at the Wednesday session on the nineteenth, by which time the runners had inspected the chest and the contents of another found in Braban’s lodgings and arranged for victims of as yet unsolved burglaries and robberies to come to Bow Street hoping that they might identify their missing goods and their assailants. Five of them did—all of whose evidence was reported in the “Bow Street Intelligence” in the following day’s papers. It was also reported that Braban was to be sent to trial at the Essex assizes with Hutchins and Wade, that Tunks and Hines were to be tried at the Old Bailey, and that they were all to be indicted in various combinations at the Surrey and Kent assizes for offenses committed in those counties.89 | 43 |
| Fielding went beyond all previous practice in conducting such re-examinations every week as part of the established routine of the office. He also exceeded the authority provided by the Marian statutes by being willing to consider evidence at the pretrial stage that might give a defendant an alibi. When he first announced that the Wednesday sessions would be held regularly, he said that they would provide accused felons with “Time to send for Friends and Witnesses to shew their Innocence, and prevent their being unwarrantably precipitated into Trials for Fraud or Felony….”90 Magistrates had shown a willingness in the early decades of the century to dismiss the charges against accused felons when they judged the prosecution evidence to be weak. But, as far as I am aware, none before Fielding had invited defendants to submit counter evidence to show their innocence, to encourage them, as was said, to “set up a defence.”91 | 44 |
| How often Fielding’s examinations resulted in discharges on the basis of defensive evidence is impossible to say: there are no records of the day-to-day work of the Bow Street magistrates. Occasional examples can be found in newspaper reports. In 1773, for example, a man accused of a violent highway robbery who had been identified as the perpetrator by the victim brought witnesses to swear that he had been in several pubs through the entire evening in question—including two of the runners who said that he had come that evening to the “Brown Bear” public house across the street from the Bow Street court and was so drunk and had behaved so badly that they had turned him out and well remembered him. He was discharged.92 Two men charged with a robbery were “honourably discharged” when three witnesses gave them alibis for the time of the offense and their employer of twenty years swore to their good character.93 We read in another case of an alibi defense failing, “it not being satisfactory to the Bench.”94 | 45 |
| It continued to be the case that no defense was capable of saving an accused felon from trial if the prosecutor insisted on swearing to his identity as the attacker. In a case that got considerable public attention, two foreign servants of the Earl of Egremont claimed to have been robbed in Piccadilly by John Mattsham (or Matchem), who had long been a valued servant in other aristocratic families. The press was sceptical and prejudiced against the two foreign prosecutors, one of whom could not speak English. Newspapers emphasized the vagueness of their evidence, the strong alibi evidence given on behalf of the defendant by a respectable clergyman, and the presence at Bow Street of the prominent politician, Charles James Fox, and members of the nobility willing to speak to his good character. Nonetheless, Mattsham was committed to trial, “the Justices not having it in their power to prevent the matter coming before a Jury” a newspaper reported, because the prosecutors persisted in identifying him as the man who had robbed them.95 At the Old Bailey, Mattsham was acquitted. Good character evidence contributed to that verdict, but his innocence was also clearly demonstrated in the course of a long cross-examination of the prosecutors by his defense counsel.96 | 46 |
| At his examination at Bow Street, Mattsham had also had the help of a lawyer who had tried to cross-examine the prosecutors there, but was prevented from doing so by the magistrates. The bench was willing to hear character evidence on behalf of the defendant, it was reported in the press, but “unwilling to admit of such a proceeding” as a cross-examination of the victim/prosecutor.97 It is significant, however, that Mattsham’s counsel had tried to do what lawyers had been able to do for their clients for close to fifty years by then in the trial courts—to make out a defense by attacking the prosecution evidence through cross-examination.98 The magistrates continued to uphold the view that a prosecutor’s sworn identification of an accused felon could not be set aside by exposing the weakness of the prosecution case; the charge still had to be taken before a judge and jury as the Marian statutes required. | 47 |
| It is unclear how many defendants had, like John Mattsham, the help of lawyers at Bow Street by the mid-1770s. Unlike most men and women accused of felony, Mattsham had powerful friends who were presumably willing to support him financially, including engaging legal help at both Bow Street and the Old Bailey. His having the help of a barrister in his trial was by then not unusual. But there is little evidence over the half century or so in which defendants had been able to engage lawyers in the trial court of their having the same privilege at the magistrates’ hearings. Thomas De Veil and John Fielding both complained about men they called “Newgate solicitors” attending at Bow Street and attempting to give advice to accused felons.99 But these were clearly men in the lower reaches of the legal profession. More established lawyers may have been attracted to the magistrates’ examinations at Bow Street when the scope for defensive efforts broadened in the re-examination process. Fielding’s aggressive questioning of defendants and his probing of the defenses they might set up at the Old Bailey perhaps persuaded some accused felons to think it worth their while to engage someone with legal training to help them face the pretrial hearing. The “Newgate solicitor” types did not disappear from the magistrates’ court. One attorney, “well known in Bow Street” according to a newspaper report, was banished from the court in 1772 for trying to get bail for an accomplice who had turned king’s evidence against the lawyer’s client. Fielding (doubtless suspecting that the accomplice intended to forfeit the bail and abscond) was said to have “expressed surprise that any practitioner of the law should appear in the stile of attorney for both prisoner and prosecutor” and ordered that he never again have audience at Bow Street. The lawyer left, the newspaper report concludes, “accompanied by the hisses of the auditors.”100 | 48 |
| There is evidence of more respectable legal figures acting on behalf of defendants at the Wednesday sessions at which Fielding invited, even encouraged defendants to bring evidence to show their innocence. A man accused of stealing from the mail was reported as having had the help of “an eminent attorney” in 1773;101 a suspect was advised by a “Gentleman of the Law” in the following year who argued to no avail that the charge against his client was no felony;102 a man whose social standing was sufficiently respectable that the publisher of the General Evening Post referred to him as “Mr. W—,” but who was none the less charged in 1776 with stealing a lady’s gold watch, engaged John Silvester, a barrister of ten years standing who was to become increasingly well known at the Old Bailey and ended his career as Recorder of London. At Bow Street, Silvester “dwelt upon the little degree of credit due to the prosecutrix,” engaged in a “long debate” with the magistrates, and managed to keep his client out of gaol while further evidence was sought.103 | 49 |
| 4. Opposition. | |
| Re-examinations made Sir John Fielding something of a celebrity. His management of the proceedings at Bow Street was often applauded, his wisdom and skill—occasionally his humanity—commented on in the press. But he also drew criticism. William Augustus Miles, a young man at the beginning of his career as a political writer, was Fielding’s fiercest critic.104 His Letter to Sir John Fielding (1773) was occasioned, as the title goes on to indicate, by Fielding’s objection to David Garrick’s revival of The Beggar’s Opera and his effort to get it suppressed. Miles took exception to Fielding’s assertion that Gay’s musical drama persuaded young men to turn highwaymen and that every performance was responsible for another life lost at Tyburn.105 Miles thought this the sheerest hypocrisy in a magistrate who made no apparent effort to suppress the immorality evident in the bawdy houses, gaming houses, and taverns that were so abundant in his own neighborhood around Covent Garden—immorality that, in his view, was the real cause of young men being drawn into crime.106 | 50 |
| It is of particular interest for us that Miles followed his criticism of what he took (incorrectly) to be Fielding’s indifference toward immorality with a scathing analysis of his practice as a magistrate. He was deeply critical of the innovations that Fielding had introduced into the pretrial procedures at Bow Street. He objected to the re-examination process, which he thought Fielding had established for the gratification of his ego. He criticized what he called Fielding’s practice of entertaining a motley audience composed of interested individuals, your relations and servants, every Wednesday, at the expence of a set of miserable objects, whose wretchedness becomes the sport of your unfeeling auditors and an abandoned rabble….The unhappy prisoners are placed at the bar, and the heinousness of their crimes are expatiated upon, not so much to convince and reform them, as to discover your oratorical powers, and obtain applause from your auditors.107Miles objected to what he took to be Fielding’s harassment of the accused—his “improper questions and authoritative manner of asking them,” behavior to be expected of the Spanish “inquisitor general, instead of a British magistrate.”108 After a defendant had been committed to trial, he wrote—setting out the requirements of the Marian system of pretrial—”you have no kind of business with them; they are not to suffer the torture of repeated examinations, but stand over to the next sessions for acquittal or conviction.”109 It was particularly improper in his view that Fielding demanded of the prisoners “what they have to urge in their defence,” which was “due only in a court of justice.”110 | 51 |
| Miles found support from a high court judge sitting at the Old Bailey. Mr. Justice Eyre was reported to have criticized the press for reporting Bow Street examinations because such publicity could prejudice the jury.111 There is no reason to doubt that Fielding honestly believed that accused felons who could demonstrate their innocence should not be put to their trial. But his intentions in getting them to reveal the defense they might “set up” at the Old Bailey were not entirely benign. The opportunity and encouragement that Fielding provided accused felons to bring defensive evidence saved some from commitment to trial, but intentionally or not, it was also a way of probing the defense that an accused offender might offer in court. And it was this that drew Miles’s heaviest criticism, in conjunction with the wide publicity given to the re-examination sessions. He was certain that Fielding’s purpose in learning from the accused “what defences they can make” was to “the more effectually prevent their escaping punishment.”112 And, Miles claimed, Fielding made it all the worse by employing printers to publish the evidence so obtained in an attempt to influence the jury in the forthcoming trial. Such pretrial publicity was wrong, Miles said, in an early expression of an emerging sentiment, because “the mild laws of this country suppose every man innocent till he is convicted by the unanimous determination of his peers….”113 | 52 |
| Concerns of the kind voiced by Miles about the re-examination process were to bring official action that closed down aspects of Fielding’s expansive pretrial procedures a few months after his death. The occasion was a lawsuit in King’s Bench that brought those practices to the attention of powerful men in the legal establishment or, more likely, provided them with an opportunity to voice their criticisms (after his death) of the way Fielding had expanded the scope and altered the character of pretrial processes at Bow Street. The suit, heard in December 1780, was brought by Thomas Ayrton, an “Attorney of King’s Bench,”114 against William Addington, a Bow Street magistrate. Ayrton had gone to Bow Street in support of a client accused of robbery. He became embroiled in a dispute with Addington at the pretrial hearing when Ayrton took out a book to take notes and attempted to cross-examine the prosecutor, interrupting the magistrate’s questions to do so. Addington objected to Ayrton’s aggressive behavior, whereupon, the Bow Street clerk present during this altercation told the justices in King’s Bench, Ayrton “insisted that he had the right to ask the Prosecutor any questions.” Insults were traded. Addington called the lawyer “an impertinent fellow”; Ayrton said he was “a man of property” and objected to being “grossly ill treated.” The room became so noisy that the clerk had to take the prosecutor to the back office to complete his examination. In the end Addington ordered the runners to take Ayrton into custody and he was held across the street at the “Brown Bear” public house for an hour or so. Ayrton sued for assault and unlawful imprisonment.115 | 53 |
| After a trial of several hours before Lord Mansfield, the King’s Bench special jury found in Ayrton’s favor with full costs. What is important for us is that in the course of the trial, according to the British Mercury, the “practices of [the] Bow Street office were publickly exposed and severely censured by the whole court.”116 The censure was delivered in the first place by the Attorney General, James Wallace. It was reported in the press that Wallace asserted that the PUBLIC examination[s] at Bow-street were productive of the most mischievous consequences to society. The injury done to individuals, who might be innocent, was such for which no possible compensation would be made; the evidence for the Crown was given up; the prisoner came to his trial without the possibility of a fair enquiry; the minds of the people were influenced; the jury prejudiced; and, where any possible guilt lodged, the prisoner hardly stood the chance of a fair acquittal. | 54 |
| Wallace also criticized the “Accounts from the Public-office, Bow-street” in the press, in which “the evidence is given at large; crimes magnified; prisoners calumniated, prejudiced, and in the minds of men convicted before hearing.” Mansfield, speaking from the bench, concurred. “[T]he PUBLIC examination,” he was reported to have said, was “subversive of every principle of justice.” He supported the Attorney General’s argument with an account of a rape case he had tried in which “the minds of the public were … highly inflamed by publications.”117 | 55 |
| What both men meant by the “public” character of the Bow Street pretrial process was not that the hearings frequently drew large crowds, but that Fielding’s vigorous examinations and re-examinations uncovered a great deal of evidence—including on occasion defensive evidence—that was then published at length in the press. The Attorney General couched his objections to pretrial publicity largely in terms of the way it worked to the disadvantage of defendants. He was as likely, however, to have been equally dismayed that prosecution evidence was also being disclosed. He may well have been concerned that Fielding’s innovations were appropriating to the magistrate the functions and powers of the trial court—the court in which defendants were still expected to confront the prosecution evidence unprepared and to respond to it unaided, and in which their guilt or innocence would be determined by a jury. | 56 |
| Wallace made no public statements about re-examination as a practice, but confined himself to seeking to curb pretrial publicity, announcing his intention “to file informations, ex officio, against the printer of every news-paper who dared in future to publish the examinations of prisoners.”118 His threat had the desired effect. The Morning Chronicle announced a week after the trial that, the Attorney General and Mansfield having pronounced as they had, the Printer thinks it becoming him to shew a proper deference to such high authority, and though he feels in his own mind, that the question will admit of much good argument on both sides, he cannot hesitate a moment which way he should determine, when he hears it asserted by men of undoubted judgment, that the liberty of the subject may be rather endangered than preserved by continuing to publish the records of Bow-street. The Readers of this Paper will therefore be pleased to consider last Thursday’s Bow-street Intelligence as the last chapter in the History of the Thieves and Thief-takers which will appear in the Morning Chronicle.119 | 57 |
| Most of the papers simply stopped publishing “intelligence from Bow Street” without comment.120 The only spirited defense of publication of pretrial hearings was offered by the British Mercury. The printer-publisher challenged Lord Mansfield’s reasoning, for example, in citing the rape case that, Mansfield had claimed, illustrated the harmful effects of such publicity. On the contrary, he argued, that case “rather seems to be a striking precedent of the necessity of public examinations.”121 And on the following day, he added that, if the “Attorney-General is determined to suppress the public examinations in Rotation-offices, his official indignation should be levelled against the justices who keep these offices open, and not against the printers, who publish only what every man is permitted to hear.”122 But, in going along with the ban, the printer of the British Mercury also acknowledged the damage that pretrial publicity inflicted on an innocent man or woman, “brought to that bar by malice or mistake.”123 | 58 |
| In his criticism of Fielding’s innovations, William Augustus Miles had objected to what he thought was Fielding’s aggressive questioning. In general, he thought that Fielding had overstepped his authority by creating a “formal judicial enquiry” in which he intruded his own judgment about the weight of the evidence presented in criminal cases instead of leaving that, as the Marian process required, to the courts.124 This was exaggerated. No magistrate could conduct a true “judicial enquiry” so long as his administrative and judicial roles remained entangled. But there is no doubt that in his emphasis on the collection of evidence in the interest of strengthening cases going forward to trial at the Old Bailey, his use of the press, his support of a group of runners who investigated offenses and apprehended suspects under his direction (and gave evidence at Bow Street and the Old Bailey), and his creation of a court-like public setting in which examinations were conducted, Fielding introduced new elements into pretrial procedures that were changing the role of the magistrate. He developed re-examinations to encourage more victim/prosecutors to add their evidence to the cases against accused felons already committed for trial, and he declared his willingness to allow defendants to present evidence that might lead to their release. This did not yet amount to a “formal judicial enquiry.” But in the interests of strengthening prosecutions, Fielding engaged in more exhaustive enquiries into the evidence than the law required and shifted the pretrial process at Bow Street further from its Marian foundations than the magistrates who in the first half of the century had sought for ways around the restrictions imposed by the sixteenth-century statutes.125 | 59 |
| 5. Conclusion | |
| Re-examinations were not abolished in December 1780; nor were Bow Street and the other magistrates’ offices closed to the public, as some of the papers initially thought would happen.126 But the regular Wednesday sessions at Bow Street were apparently abandoned—at least they were no longer reported. The London Courant, the newspaper most openly hostile to what it called Fielding’s “assumption of consequence and power,” thought that with the banning of such publicity Bow Street would become less like “a theatre” or, as it had been on Wednesdays, “a bear-garden.”127 Pretrial publicity was certainly more restrained over the next several years. The Gazetteer announced in August 1782 that “several persons now in custody are strongly suspected of having lately committed many footpad robberies near London [and that] they will be re-examined at [Bow Street] on Friday next, at eleven o’clock, when all persons lately robbed are desired to attend.” But what passed at that session was not subsequently reported.128 By the end of the decade an occasional case re-examined at Bow Street was briefly reported in The Times, but one case at a time, never a full session, and rarely more than a handful in a year.129 | 60 |
| The Bow Street magistrates also agreed to restrain other aspects of Fielding’s innovations. At his King’s Bench trial, William Addington distanced himself from the way magisterial business had been managed at Bow Street, asserting through his attorney what no doubt everyone knew, that the practice had been entirely shaped by Sir John Fielding. Procedures in recent years, he said, were “contrary to his own sentiments of judicial enquiries.”130 If that were true it might explain his conflict with Ayrton, who must have come to Bow Street expecting to be able to support his client in the way that had been possible during Fielding’s years, only to find that Fielding’s successors were less open to the intrusions that may earlier have been tolerated. At any event, either because the Attorney General and Mansfield had spoken out against the developments at Bow Street or because his fellow magistrates concurred in Addington’s sentiments, some of the more controversial aspects of Fielding’s practices were eliminated in the 1780s. Accused felons were no longer asked at Bow Street, for example, to disclose the evidence they might rely on to defend themselves in court. In 1786, Nicholas Bond, once a runner, by then a magistrate, was reported to have said at a pretrial session that “he could not admit the evidence of an alibi,” and that whatever his and his fellow magistrates’ “opinion is of [an accused’s] innocence” they could not pronounce on it, that it had to be determined “before the Judge” at the Old Bailey.131 A barrister confirmed in the following year that the Bow Street magistrates “never receive any evidence for prisoners, only for prosecutors.”132 That did not mean that defendants were prohibited from making defensive statements, but rather that they were not encouraged to do so. The Bow Street magistrates no longer sought, as Fielding had, to uncover the defense the accused might “set up” at the Old Bailey. | 61 |
| The more fundamental consequences of John Fielding’s innovations could not, however, be so easily retracted. His most important legacy was the opening of the pretrial process to the public through the establishment of a rotation system at Bow Street that kept the office open for eight hours every day and the establishment of the purpose-built courtroom opened in 1772. Despite the negative responses in some quarters to Fielding’s innovations, magistrates’ hearings remained more open in the 1780s than they had been before he constructed his courtroom—more open to the public, to the press, and to lawyers. His critics may have derided the result as “theatre”—and the Wednesday session as a “bear-garden”—but the court-like setting must have made pretrial proceedings more orderly and formal than they had been when prosecutors and defendants, nightwatchmen and constables crowded before the magistrate in groups. | 62 |
| The openness of Fielding’s pretrial hearings may also have helped to facilitate a major change in the nature of the criminal trial that was being felt in Fielding’s last years at Bow Street and even more in the years immediately following his death. That change was the sharp increase in the number of barristers practicing at the Old Bailey. Where relatively few defendants and even fewer prosecutors had engaged counsel in felony trials over the previous fifty years, many more began to do so in the late 1770s and the 1780s: indeed by the middle years of that decade there had been more than a tenfold increase in both defense and prosecuting counsel acting at the Old Bailey over what had been the norm during Fielding’s lifetime.133 Some barristers may also have acted for clients before the magistrates at Bow Street or in the Rotation Offices.134 But for the most part, it seems certain that accused felons depended more frequently on a solicitor to attend at the magistrate’s examination, to gather evidence, and to draw a brief laying out the case that a barrister would argue in court. The fact that two hundred defendants and a hundred prosecutors engaged counsel at the Old Bailey in 1786 could only mean that there had been a considerable presence of lawyers at pretrial procedures before London magistrates. This must have raised a host of questions about what solicitors might or might not do for their clients and what the role of the magistrate was to be in a pretrial procedure that was taking on some of the characteristics of the adversarial trial emerging in the courts.135 | 63 |
| The conflict that had brought Addington to King’s Bench arose because John Fielding’s innovations at Bow Street had raised some of those issues. They became more pressing when solicitors began to attend at magistrates’ examinations in ever larger numbers. We have evidence of that in the concerns expressed by a group of Lancashire magistrates in 1801 about the difficulties solicitors were causing them at their examinations of accused felons. The magistrates sought the guidance of a number of leading members of the profession on questions raised by the presence of solicitors at pretrial hearings: in particular, whether such attorneys attended at the magistrates’ discretion, and the extent to which they had a right to interrupt proceedings, to counsel their clients not to answer certain questions, to cross-examine prosecution witnesses, to take notes, and to have copies of the depositions and other documents taken in the course of the hearing.136 | 64 |
| These concerns make it abundantly clear that, in Lancashire, as almost certainly in London, it was not unusual for accused felons to be accompanied by lawyers at pretrial hearings. They also confirm that the involvement of solicitors eroded what remained of the pretrial procedures set out in the Marian statutes. The conduct of attorneys at the examinations of accused felons, the Lancashire magistrates complained, had “in a great Measure rendered nugatory” the provisions of that legislation.137 The fundamental changes that led them to that conclusion had perhaps begun in the early decades of the eighteenth century. But they had almost certainly been significantly accelerated in the third quarter of that century as a consequence of John Fielding’s encouragement of a wide public attendance at Bow Street and his determination to use pretrial process as a way of building prosecution cases for trial at the Old Bailey. By the end of the century, as the Lancashire magistrates complained, the assumptions underlying the Marian procedures had been entirely undermined. What would take the place of the old system was to be worked out in practice over the next half century and finally established in law in 1848 when parliament passed the so-called Jervis Acts that created the modern form of the magistrates’ judicial enquiry.138 | 65 |
John Beattie is a University Professor of History Emeritus at the University of Toronto <[email protected]>. He wishes to thank the Social Science and Humanities Research Council of Canada and the Centre of Criminology, University of Toronto, for financial support; Erica Charters and Karen Macfarlane for research help; and Donna Andrew, Simon Devereaux, Norma Landau, John Langbein, Andrea McKenzie, Ruth Paley, Bruce Smith, and Law and History Review‘s anonymous readers for their helpful comments. Notes1. 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. Lee Davison et al. (Stroud: Alan Sutton, 1992), 76–81. J. M. Beattie, Policing and Punishment in London, 1660–1750: Urban Crime and the Limits of Terror (Oxford: Oxford University Press, 2001), chap. 1.2. For rewards offered by Parliament and by royal proclamation for the conviction of certain felons, see below, 64.3. For the committee and its work, see Rogers, “Confronting the Crime Wave,” 77–98; J. M. Beattie, Crime and the Courts in England, 1660–1800 (Princeton: Princeton University Press, 1986), 520–25, 551–22; Sir Leon Radzinowicz, A History of English Criminal Law and Its Administration since 1750, 5 vols. (London: Stevens,1948–86; vol. 5 with Roger Hood), 1: chap. 12; and Richard Connors, “‘The Grand Inquest of the Nation’: Parliamentary Committees and Social Policy in Mid-Eighteenth-Century England,” Parliamentary History 14 (1995): 301–13.4. See below, 68.5. Henry Fielding, An Enquiry into the Causes of the late Increase of Robbers (1751), ed. Malvin R. Zirker (Oxford: Oxford University Press, 1988). For Fielding at Bow Street, see Radzinowicz, History of English Criminal Law, 3: chaps. 1–2; Martin C. Battestin with Ruthe R. Battestin, Henry Fielding: A Life (London: Routledge, 1989), Part IV; Lance Bertelsen, Henry Fielding at Work: Magistrate, Businessman, Writer (London: Palgrave, 2000); Henry Fielding, The Covent-Garden Journal and A Plan of the Universal Register Office, ed. Bertrand Goldgar (Oxford: Oxford University Press, 1988), Introduction.6. Henry Fielding, “Memorial” on the subject of the Bow Street officers, late 1753 or early 1754: Huntington Library: HM 11617.7. The National Archive [hereafter TNA]: SP 36/153, f. 16.8. Fielding was obliged to request the renewal of these funds every year while accounting for the previous year’s expenditures. Seven of his accounts, from the 1750s and 1760s, remain among the Treasury papers at TNA: T 38/671, T 1/387, T 1/414, T 1/449, T 1/454.9. For John Fielding’s personal stipend from the Secret Service fund, see Sir Lewis Namier, The Structure of Politics and the Accession of George III, 2d ed. (London: Macmillan, 1957), 228. There is no extended modern study of Fielding’s work at Bow Street. R. Leslie-Melville, The Life and Work of Sir John Fielding (London: Lincoln Williams, 1905) contains useful material, but is largely anecdotal. See Radzinowicz, History of English Criminal Law, 3: chap. 2; John H. Langbein, “Shaping the Eighteenth-Century Criminal Trial: A View from the Ryder Sources,” University of Chicago Law Review 50 (1983): 67–76; Ruth Paley, “The Middlesex Justices Act of 1792: Its Origins and Effects” (Ph.D thesis, University of Reading, 1983), passim.10. Across the eighteenth century, prosecutions for property offenses in London tended to decline in years of war and to increase sharply with the coming of peace. For these fluctuations and possible explanations, see J. M. Beattie, “Crime and Inequality in Eighteenth-Century London,” in Crime and Inequality, ed. John Hagan and Ruth D. Peterson (Stanford: Stanford University Press, 1995): 116–39; Beattie, Policing and Punishment, chap. 1; Douglas Hay, “War, Dearth and Theft in the Eighteenth Century: The Record of the English Courts,” Past and Present 95 (May 1982): 117–60; Joanna Innes and John Styles, “The Crime Wave: Recent Writing on Crime and Criminal Justice in Eighteenth-Century England,” Journal of British Studies 25 (4 October 1986): 380–435; Peter King, Crime, Justice, and Discretion in England, 1740–1820 (Oxford: Oxford University Press, 2000), part 2.11. For crime in the 1690s and the statutory rewards, established by Parliament in the 1690s and the early years of the seventeenth century—principally £40 to be paid on the conviction of a robber, burglar, or coiner, see Radzinowicz, History of English Criminal Law, 2: chap. 3; Beattie, Policing and Punishment, 227–32.12. Douglas Hay and Francis Snyder, “Using the Criminal Law, 1750–1850: Policing, Private Prosecution, and the State,” in Policing and Prosecution in Britain 1750–1850, ed. Douglas Hay and Francis Snyder (Oxford: Oxford University Press, 1989), 3–52; Douglas Hay, “Controlling the English Prosecutor,” Osgoode Hall Law Review 21.2 (1983), 165–86.13. For thief-takers over the first half of the eighteenth century, see Beattie, Policing and Punishment, chap. 5 and 401–23; Tim Wales, “Thief-takers and Their Clients in Later Stuart London,” in Londinopolis: Essays in the Social and Cultural History of Early Modern London, ed. Paul Griffiths and Mark S. R. Jenner (Manchester: Manchester University Press, 2001), 67–85; Gerald Howson, Thief-Taker General: The Rise and Fall of Jonathan Wild (London: Hutchinson, 1970); Ruth Paley, “Thief-takers in London in the Age of the McDaniel Gang, c. 1745–54,” in Policing and Prosecution in Britain, ed. Hay and Snyder, 301–41.14. A. Roger Ekirch, Bound for America: The Transportation of British Convicts to the Colonies, 1718–1775 (Oxford: Oxford University Press, 1987); Beattie, Policing and Punishment, chap. 9.15. The proclamation reward was to remain in force until 1745. It was renewed in the crime wave around mid-century, when its failure to prevent crime and the corrupt and false prosecutions it encouraged—at least one of which resulted in the execution of an innocent man—was the principal reason the government turned to Henry Fielding in 1753. Beattie, Policing and Punishment, 378–80, 383, 401–9; Paley, “Thief-takers in London in the Age of the McDaniel Gang,” 301–40.16. Beattie, Policing and Punishment, 103–8. For efforts at the local level in this same period to prevent crime by strengthening the nightwatch and improving street lighting in the City of Westminster and the City of London, see Elaine A. Reynolds, Before the Bobbies: The Night Watch and Police Reform in Metropolitan London, 1720–1830 (Basingstoke: Macmillan, 1998); Beattie, Policing and Punishment, chap. 4.17. John H. Langbein, The Origins of Adversary Criminal Trial (Oxford: Oxford University Press, 2003), chap. 3. The accused’s right to full defense by counsel was not to be established until 1836. On the history of the trial in the eighteenth and early nineteenth centuries, see also Allyson N. May, The Bar and the Old Bailey, 1750–1850 (Chapel Hill and London: University of North Carolina Press, 2003); David J. A. Cairns, Advocacy and the Making of the Adversarial Criminal Trial (Oxford: Oxford University Press, 1998); David Lemmings, Professors of the Law: Barristers and English Legal Culture in the Eighteenth Century (Oxford: Oxford University Press, 2000), chap. 6; Stephan Landsman, “The Rise of the Contentious Spirit: Adversary Procedure in Eighteenth-Century England,” Cornell Law Review 75 (1990); 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): 221–67.18. For the Marian legislation—1& 2 P. & M., c. 13 (1554–5), 1 & 2 P. & M., c. 6 (1555)—see John H. Langbein, Prosecuting Crime in the Renaissance: England, Germany, France (Cambridge: Harvard University Press, 1974), part 1.19. For the “Marian pretrial,” see Langbein, Origins of Adversary Criminal Trial, 40–47. The magistrates in the City of London applied the Marian rules in the late seventeenth century, sending all cases on to trial that were charged as felonies. Beattie, Policing and Punishment, 91–99.20. Langbein, Origins of Adversary Criminal Trial, 47, n. 181.21. Beattie, Policing and Punishment, 103–8.22. For the discretionary powers that magistrates exercised in dealing with misdemeanors and minor crime in general, the process of prosecution at quarter sessions, and the changing character of summary jurisdiction in the eighteenth century, see Norma Landau, The Justices of the Peace, 1679–1760 (Berkeley: University of California Press, 1984), part 3; Landau, “Appearance at the Quarter Sessions of Eighteenth-Century Middlesex,” London Journal 23.2 (1998): 30–52; Landau, “Indictment for Fun and Profit: A Prosecutor’s Reward at Eighteenth-Century Quarter Sessions,” Law and History Review 17 (1999): 507–36; Landau, “Summary Conviction and the Development of the Penal Law,” Law and History Review 23 (2005):173–89; Robert B. Shoemaker, Prosecution and Punishment: Petty Crime and the Law in London and Rural Middlesex, c. 1660–1725 (Cambridge: Cambridge University Press, 1991), 225–37; Bruce P. Smith, “The Presumption of Guilt and the English Law of Theft, 1750–1850,” Law and History Review 23 (2005): 133–71; Smith, “Did the Presumption of Innocence Exist in Summary Proceedings?” Law and History Review 23 (2005): 191–99.23. Langbein provides a great deal of evidence in Origins of Adversary Criminal Trial, chaps. 3–4, of the intimate connection between the magistrates’ management of evidence-gathering at the pretrial phase and the trials that followed. And see his “Shaping the Eighteenth-Century Criminal Trial: A View from the Ryder Sources,” University of Chicago Law Review 50 (1983): 55–81. Ruth Paley’s valuable edition of a Hackney magistrate’s notebook records the pretrial work of a moderately active justice in the 1730s and provides some sense of the expanding discretionary powers becoming available to magistrates by then in dealing with felonies: Justice in Eighteenth-Century Hackney: The Justicing Notebook of Henry Norris and the Hackney Petty Sessions Book, ed. Ruth Paley, London Record Society Publications, 28 (London: London Record Society, 1991). For changes in the form and substance of pretrial procedures in the City of London in the first half of the eighteenth century, see Beattie, Policing and Punishment, chap. 2. As we will see, the justices’ pretrial process was to change even more strikingly in the late eighteenth and early nineteenth centuries. Peter King has shown that magistrates in Essex were by then exercising much broader choices in their decision-making at the pretrial stage of felony prosecutions than had London magistrates a hundred years earlier: Crime, Justice, and Discretion in England 1740–1820 (Oxford: Oxford University Press, 2000), part 1.24. For the status of Westminster and Middlesex magistrates—who lacked the standing of the landed gentlemen who typically served on the rural commissions of the peace—and for the work of the “trading justices,” see Landau, Justices of the Peace, 184–90, and Landau, “The Trading Justice’s Trade,” in Law, Crime and English Society, 1660–1830, ed. Norma Landau (Cambridge: Cambridge University Press, 2002), 46–70.25. Beattie, Policing and Punishment, 391.26. De Veil’s important career has yet to be studied in detail. His work is known in general terms—particularly the pretrial examinations he conducted in a number of famous cases. See Anthony Babington, A House in Bow Street: Crime and the Magistracy, 1740–1881 (London: MacDonald, 1969), chaps. 4–5; Langbein, Origins of Adversary Criminal Trial, 199–202. For his vigorous efforts to enforce the unpopular Gin Acts, see Jessica Warner, Craze: Gin and Debauchery in an Age of Reason (New York: Four Walls Eight Windows, 2002), 125, 149–51, 169–71. And see the contemporary Memoirs of the Life and Times of Sir Thomas Deveil, Knight (London, 1748). De Veil also wrote a guide for London justices: Observations on the Practice of a Justice of the Peace: Intended for such Gentlemen as design to act for Middlesex or Westminster (London, 1747).27. Paley, “Thief-takers in London in the Age of the McDaniel Gang,” 301–40.28. Information about his clerks and their work is contained in the annual accounts Fielding was obliged to submit to the Treasury every year with his request for renewal of the funds (see above, n. 8). For Fielding’s use of the press, see John Styles, “Sir John Fielding and the Problem of Criminal Investigation in Eighteenth-Century England,” Transactions of the Royal Historical Society, 5th ser., 33 (1983), especially 135–49; and Styles, “Print and Policing: Crime Advertising in Eighteenth-Century Provincial England,” in Policing and Prosecution in Britain, ed. Hay and Snyder, 55–111.29. There is no detailed scholarly study of the runners. For brief accounts, see Clive Emsley, The English Police: A Political and Social History, 2d ed. (London: Longman, 1996), chap. 1, and J. M. Beattie, “Early Detection: The Bow Street Runners,” in Police Detectives in History, 1750–1950, ed. Clive Emsley and Haia Shpayer-Makov (London: Ashgate, 2006). Radzinowicz deals with them only briefly in his History of English Criminal Law, 2: chap. 7, and 3: chap. 2. Stanley H. Palmer, Police and Protest in England and Ireland, 1780–1850 (Cambridge: Cambridge University Press, 1988), 78–79 is dismissive of their importance. For the provincial work of the runners after 1792, see David Cox, “‘A Certain Share of Low Cunning’: An Analysis of the Work of Bow Street Principal Officers, 1792–1839, with Particular Emphasis on Their Provincial Duties” (Ph.D. thesis, University of Lancaster, 2006). There is a brief account of the substance and argument of the thesis in Eras 5 (Nov. 2003) [www.arts.monash.edu.au/eras]. More popular treatments of the runners include: Gilbert Armitage, The History of the Bow Street Runners, 1729–1829 (London: Wishart, 1932); Anthony Babington, A House in Bow Street: Crime and the Magistracy, 1740–1881 (London: MacDonald, 1969); and Patrick Pringle, Hue and Cry: The Story of Henry and John Fielding and Their Bow Street Runners (London: William Morrow, 1955).30. See below, 73.31. Beattie, Policing and Punishment, 108–13.32. TNA: T 1/372/109; British Library [henceforth BL]: Add Mss 32862, f. 375; Add Mss 32874, f. 379.33. TNA: SP 44/138, p. 182 (I am grateful to Norma Landau for that reference).34. BL: Add Mss 38334, ff. 75–79—an abstract of the Plan of Police that Fielding presented to George Grenville, 1762; reproduced in Radzinowicz, History of English Criminal Law, 3: appendix I, 477–79.35. London Metropolitan Archives [henceforth LMA]: MC/SJ (Rotation Committee Papers, 1763–64). On the efforts to create rotation offices in these years, see Paley, “The Middlesex Justices Act of 1792,” 187–201.36. Paley, “The Middlesex Justices Act of 1792,” chap. 6.37. By the Middlesex Justices Act (32 Geo. III, c. 53).38. TNA: T 1/449, f. 45.39. Sir John Fielding, Extracts from such of the Penal Laws as Particularly relate to the Peace and Good Order of this Metropolis (London, 1768; 1st ed. 1761), 7. According to Edward Sayer (who, as the deputy high steward of Westminster, had good reason to know) a system of stipendiary magistrates was being discussed in 1768 for the City of Westminster. It may have been the failure of that more general plan that enabled Fielding to persuade the Grafton administration to increase its support for his office. Edward Sayer, Observations on the Police or Civil Government of Westminster with a Proposal for a Reform (London, 1784), 32–33.40. Gazetteer, 5 Jan. 1771.41. For the 1742 print showing De Veil examining an accused, see Clare Graham, Ordering Law: The Architectural and Social History of the English Law Court to 1914 (London: Ashgate, 2003), 168; for the dating to c. 1750 of a drawing of Bow Street by Marcellus Laroon, see Battestin, Henry Fielding, ix–x.42. The Malefactor’s Register: or, the Newgate and Tyburn Calendar (1779), vol. 5: frontispiece. This engraving is reproduced in Langbein, “Shaping the Eighteenth-Century Criminal Trial,” 74, in Leslie-Melville, The Life and Work of Sir John Fielding, frontispiece, and in Graham, Ordering Law, 170.43. He had been asked in court if he could identify Fielding’s signature and replied that he could do so because he saw his distinctive scrawl on the document accompanying the commitment of accused felons very frequently (OBP, Jan. 1757, Charles Butler [t17570114–30]). Accounts of trials at the Old Bailey were published in pamphlet form after the eight sessions of the court under the title, The Proceedings at the Sessions of the Peace, and Oyer and Terminer, for the City of London, and on the King’s Commission of Gaol-Delivery of Newgate, held in Justice-Hall in the Old-Bailey for the City of London and County of Middlesex … followed by the date. In citing these trials, I refer to the digitized version available on-line at Old Bailey Proceedings Online (www.oldbaileyonline.org). I follow the editors’ suggested citation guide: OBP, date of Old Bailey session, name(s) of accused, reference number of the trial. The unique reference number makes it easy to find a trial. Cited quotations can be found by means of a keyword search.44. The figures quoted here are based on a 10 percent sample of the Newgate gaol calendars—the lists of accused being held in gaol awaiting trial on the eve of the Old Bailey sessions, which include the names of committing magistrates—between 1756 and1780. The calendars formed the outside wrapper of the sessions roll. (LMA: OB/SR). The data over three periods in Fielding’s years are as follows:PeriodSessionsTotal commitmentsBow Street commitmentsPercent1756–66630310935.91767–73862630448.51774–80656421337.8In a sample of eight sessions in the years 1780–92 (following Fielding’s death), commitments from Bow Street were to fall to a level of just over 20 percent as a result of the increasing numbers of defendants committed by the other public offices.45. Observations on the Police or Civil Government of Westminster, iv.46. Langbein, “Shaping the Eighteenth-Century Criminal Trial,” 69.47. Landau has shown that Fielding was criticized by the Middlesex bench on at least one occasion for interfering in the prosecution of a case that had originated with another magistrate: “The Trading Justice’s Trade,” in Law, Crime and English Society, 58.48. OBP, Dec. 1765, Stephen Wheat and Robert Tull (t17651211–48).49. OBP, May 1780, William Lessingham and Peter Brown (t17800510–40).50. OBP, May 1780, Thomas Humphreys and Thomas Johns (t17800510–33).51. OBP, July 1770, John Stretton (t17700711–26).52. OBP, July 1784, Robert alias John Moore (t17840707–2).53. For example: OBP Feb. 1767, Joseph Guy (t17670218–38); OBP, May 1767, Thomas Donnelly (t17670429–10); OBP, April 1773, William Collins, Thomas Oats, Thomas Spooner (t17730421–10). In a deposition given before the Bow Street magistrates, Moses Morant, a runner, testified that he had found a pawn ticket on Alexander Duff. This led him to the pawnbroker who had taken a stolen cloak in pawn and eventually to the shopkeeper who had lost it and the woman who had made it for him (LMA: OB/SP/April 1783/49).54. William Augustus Miles, A Letter to Sir John Fielding, Knt., occasioned by his extraordinary request to Mr. Garrick for the suppression of the Beggar’s Opera (London,1773), 21.55. OBP, Jan. 1759, Anne Gyles, alias Friday (t17590117–25).56. OBP, Jan. 1759, Edward Cleaver and Elizabeth Sharp (t17590117–30).57. Langbein has traced the emergence of the “confession rule” in Origins of Adversary Criminal Trial, 218–23.58. OBP, January 1780, John McCormick (t17800112–3).59. A judge refused to allow a written confession to be read in court in 1774 when John Leigh, the chief clerk at Bow Street, acknowledged under questioning from the bench that Fielding had told him that if he confessed “he would endeavour to save his life.” (OBP, September, 1774, Amos Merritt (t17740907–62). Henry Morgan, on trial for murder in 1784 claimed that the Bow Street magistrate, William Addington, had pressured and persuaded him into signing a confession. He had taken him into a room by himself, Morgan said, and told him that “if I did not make some confession or other I should be sent to prison, and locked up, and loaded with irons, and nobody should see me; and if I would make any confession I should have every thing done that could be, and should be pardoned.” Addington was not in court to be questioned, but Nicholas Bond, the clerk who had recorded the confession, was able to persuade a sceptical court that Morgan had given it freely and voluntarily and it was admitted. OBP, September 1784, Henry Morgan (t17840915–1).60. OBP, Feb. 1784, John Jacobs, Samuel Selshire, and Richard M’Donald (t17840225–11).61. A lawyer prosecuting a former servant who had confessed to Jealous and Carpmeal when they apprehended him in Bath, assured the bench that he had said nothing to induce his confession and that “I take it for granted the officers are too much used to propriety in business, to do anything of that kind.” (OBP, Dec 1785, Charles Seymour, alias Moore (t17851214–1).62. The first surviving example is dated 28 October 1783 (LMA: SP/OB/Oct.1783/52).63. For a full account of the cases at the Old Bailey that reveal the adoption, functioning, and eventual modification of the corroboration rule, see Langbein, Origins of Adversary Criminal Trial, 203–17.64. Fielding, Enquiry into the Causes of the Late Increase of Robbers, 158–63.65. OBP, May 1756, Charles Cane and Thomas Williams (t17560528–22); General Evening Post, 20–2 July, 1773.66. OBP, Oct. 1772, James Kennedy and James Divett (t17721021–54).67. OBP, Dec. 1765, James Wilkins and Robert Scott (t17651211–6).68. OBP, Feb. 1784, John Fox and John Jones (t17840225–8).69. General Evening Post, 28–30 Jan. 1772.70. Langbein, “Shaping the Eighteenth-Century Criminal Trial,” 91–95. For the case, see Donna T. Andrew and Randall McGowen, The Perreaus and Mrs. Rudd: Forgery and Betrayal in Eighteenth-Century London (Berkeley: University of California Press, 2001).71. His reasons for refusing to admit men as king’s evidence were rarely stated. He refused one man on the grounds that he was an “old offender” (OBP, Dec. 1768, John Andrew Martin (t17681207–9). He told another man that he could not be admitted an evidence “as part of the property was found upon him” (OBP, June 1770, James Lee and Thomas Cook (t17700630–24). Others may have been refused because their evidence was not required (OBP, June 1772, Joseph Guyant and Joseph Allpress, alias Allprice (t17720603–44); OBP, April 1773, John Birch, Richard Bolton, and John Duffey (t17730421–39). And see, Morning Chronicle, 11 June 1772; General Evening Post, 1–3 Feb. 1774. In the mid-1780s the judges undermined the force of the corroboration rule in a judgment that changed its basis: rather than excluding as unsafe the uncorroborated evidence of a witness who was testifying to save his life, the judges agreed in Atwood and Robbins that such evidence could be retained if judges cautioned juries about its inherent dangers. Langbein, Origins of Adversary Criminal Trial, 212–17.72. The runners gave evidence, for example, in felony cases tried at the assizes on the Home Circuit—the counties surrounding London. In four assize sessions in Surrey, surveyed between 1770 and 1790, a total of 18 Bow Street officers gave evidence in 26 cases; in Essex in four sessions in the same years, 12 runners appeared in 7 cases; and in Kent, 8 testified in 5 trials (TNA: ASSI/94/1059–62, 1124–7, 1329–35, 1258–61). For the runners’ involvement in cases in Essex in the 1780s, see King, Crime, Justice, and Discretion, 78.73. In January, 1753 a defendant was said to have been “brought from New Prison [to Bow Street] a second time.” OBP, Jan. 1753, Joseph Hall (t17530111–27).74. 25 Geo. II, c. 36 , s. 12 (1752). According to Fielding’s account of a Bow Street session at which he examined thirty “idle, dissolute, and suspicious persons,” several members of parliament who were present “declared themselves sensible of the Necessity of a Law to detain all such suspicious Vagabonds, till they can be advertized, and seen by Persons lately robb’d.” The Covent-Garden Journal and a Plan of the Universal Register Office, ed. Goldgar, 403. For Fielding’s interest in this addition to magisterial authority, see King, Crime, Justice, and Discretion, 94–95.75. Langbein discussed the importance of the re-examination session at Bow Street under the Fieldings in “Shaping the Eighteenth-Century Criminal Trial,” 64, n. 243.76. The Public Advertiser, 10 August 1757 (repeated in the next five issues).77. The Public Advertiser, 1 September 1757.78. The Public Advertiser, 8 September 1757; on 26 September, Fielding announced in the same paper that “the supposed Highwayman Henry Clarke” had been arrested, and he encouraged victims of robberies near London over the previous three months to come to Bow Street the following day at 2 p.m. when Clarke was to be re-examined.79. Fielding, Extracts from such of the Penal Laws, 7.80. See above, 74–75.81. Andrew and McGowen, The Perreaus and Mrs. Rudd, 26–27.82. Miles, Letter to Sir John Fielding, 22.83. Some newspapers headed these reports “Intelligence from the Public-office in Bow-street” or “Proceedings at the Public-office in Bow-street”; others simply began a paragraph “Yesterday at the Public Office, Bow-street….” I have depended on the following papers for the account of the Bow Street re-examination sessions in the 1770s: Morning Chronicle, Morning Post, Public Advertiser, Gazetteer, British Mercury, London Evening Post, General Evening Post, St. James’s Chronicle. The first five were dailies, the last three bi-weeklies. A comparison of the reports of the four Wednesday meetings of the Bow Street magistrates in January 1775 (5, 12, 19, 26 January) suggests that there were at least four reporters in court. Two papers regularly printed the same report as two others; the reports in the Morning Chronicle and the Morning Post were distinctive. The London press also reported re-examination sessions at some of the Rotation Offices, but not as regularly as those at Bow Street. See, for example, General Evening Post, 13 Feb. 1772 (Litchfield Street) and 28–31 May 1774 (St. Margaret’s Hill).84. Presumably either Samuel Male, alias May, or James Wilson, who were convicted of stopping the Hampstead coach at the January 1773 sessions (OBP, Jan. 1773 (t17730113–19). Two other groups of offenders were also tried at that session for attacking the same stagecoach at other times in January, but were acquitted.85. General Evening Post, 6–8 April 1773.86. General Evening Post, 3–6, 6–8 April 1773; OBP, April 1773, Thomas Broadhead (t17730421–29).87. Journals of the House of Commons, XXXII, 878–82; Parliamentary History, XVI, cols. 929–43.88. London Evening Post, 9–11 February 1775.89. Based on the Bow Street reports in the Morning Chronicle, Public Advertiser, and Gazetteer for 5, 12, 19 January 1775. The Old Bailey trial of Thomas Tunks and John Hines (at which they were both convicted and sentenced to death) is at OBP, April 1775 (t17750426–57).90. Fielding, Extracts from such of the Penal Laws, 7.91. Morning Chronicle, 13 Jan 1780. A woman charged with theft of bank notes testified at the Old Bailey that, having asked John Clarke, a runner, if she should tell Fielding that she had found them, he replied that “that was as good a defence as she could set up.” OBP, Sept. 1776, Ann Seabright, alias Forbes (t17760911–50). Newspaper accounts occasionally noted that accused felons had “set up a defence” at Bow Street (Morning Chronicle, 14 Sept. 1780) or had been asked what defense they had to make, that they had said little in defense or had made a poor defense (General Evening Post, 20–22 April 1773, 8–10 Feb. 1774; Gazetteer, 15 Jan 1778; Morning Chronicle, 29 Jan. 1778, 20 July 1780; British Mercury, 1 Dec. 1780).92. General Evening Post, 19–21 Jan. 1773.93. Public Advertiser, 8 July 1779.94. General Evening Post, 8–10 Feb. 1774.95. General Evening Post, 14–16 Jan. 1774.96. OBP, July 1774, John Mattsham alias Matchem (t17740706–1).97. General Evening Post, 14–16 January 1774.98. For defense counsel at the Old Bailey, see the literature cited above, n. 17.99. Langbein, Origins of Adversary Criminal Trial, 136–47; Beattie, Policing and Punishment, 395–99.100. General Evening Post, 24–26 August 1773.101. General Evening Post, 2–4 March 1773.102. Morning Chronicle, 7 July 1774.103. General Evening Post, 7–9 May 1776. For barristers at Bow Street, see also May, The Bar and the Old Bailey, 89–90; and for Silvester’s career, see ibid, 36–40.104. For Miles, who was about twenty years old in 1773, see the Oxford Dictionary of National Biography (2004).105. Miles, Letter to Sir John Fielding, 7.106. Ibid., 8–18.107. Ibid., 21, 22.108. Ibid., 19.109. Ibid., 18–25.110. Ibid., 19–20.111. Morning Chronicle, 25 Feb. 1773.112. Miles, Letter to Sir John Fielding, 22–23113. Ibid., 19.114. James Oldham, The Mansfield Manuscripts and the Growth of English Law in the Eighteenth Century (Chapel Hill and London, 1992), 2:1025; Browne’s General Law-List, 3d ed. (London, 1778), 20.115. This account of the quarrel is based on the reports of the subsequent trial in the British Mercury and the Morning Chronicle, cited below, and on Lord Mansfield’s notes on the case, in Oldham, The Mansfield Manuscripts, 2:1023–26.116. British Mercury, 9 Dec. 1780.117. British Mercury, 11 Dec. 1780.118. British Mercury, 11 Dec. 1780.119. Morning Chronicle, 14 Dec. 1780.120. Having reported Bow Street examinations on 7 December 1780, The Morning Post, Gazetteer, and Public Advertiser declined to do so a week later.121. British Mercury, 11 Dec. 1780. Emphasis in original.122. British Mercury, 12 Dec. 1780.123. British Mercury, 13 Dec. 1780.124. Miles, Letter to Fielding, 18–25. The author of a pamphlet noted by a correspondent to the London Courant on 19 December 1780 (below, n. 127) also thought that justices of the peace were taking it upon themselves to “sit in judgment on [accused] men, as if brought before them for trial instead of commitment….”125. At least one newspaper thought that in some cases the magistrates at Bow Street made judgments about the evidence they heard. A case involving theft from the mail was put off for a week because depositions had been taken in Bedfordshire where the offense had occurred and had to be sent for. The Morning Chronicle (6 Jan. 1780) reported that “the matter will undergo a more judicial investigation” when they arrived.126. London Courant, 14 Dec. 1780.127. London Courant, 14, 16 Dec. 1780. On the 17th the Courant also published a letter from a correspondent that included passages transcribed “from a pamphlet published last year” critical of public examinations and their publication. The correspondent thought that the anonymous pamphlet may have been written by Manasseh Dawes, a barrister and writer on political and legal subjects, but I have been unable to confirm that. It is not included in his work listed in Hugh Mooney’s biography of Dawes in the Oxford Dictionary of National Biography (Oxford, 2004). The question of whether “publick examinations of prisoners and afterwards publishing the same” was “proper or improper” was proposed for debate at the Westminster Forum debating society in the week in which the Attorney General’s opposition was revealed in the press, suggesting the possibility that someone might speak in their favor. The result of the debate was not subsequently disclosed, but the issue had clearly attracted public attention. See Donna T. Andrew, London Debating Societies, 1776–1799 (London: London Record Society, 1994), 121. The question of the fairness or otherwise of pretrial publicity was to remain a controversial subject well into the nineteenth century. See, for example, David Bentley, English Criminal Justice in the Nineteenth Century (London: Hambledon Press, 1998), chap. 5.128. Gazetteer, 15 August 1782.129. The Times reported four in 1788 (21 July, 20 August, 7 and 16 October) and the same number in 1789 (2 June, 7 and 8 October, 17 November).130. British Mercury, 11 Dec. 1780.131. OBP, Dec. 1786, James Watts and Francis Hardy (t17861213–2).132. OBP, Dec. 1787, Darcy Wentworth and Mary Wilkinson alias Looking (t17871212–7).133. For lawyers at the Old Bailey in the eighteenth and nineteenth centuries, see above, n. 17. For the ten-fold increase, Beattie, “Scales of Justice,” 227.134. See above, 91, for John Silvester representing a defendant at Bow Street; for other examples of barristers acting at Bow Street, see May, The Bar and the Old Bailey, 89–90.135. Langbein, Origins of Adversary Criminal Trial, 273–77.136. The questions and answers were published in pamphlet form in Copy of Case [submitted to counsel by the Magistrates of the County of Lancaster] and Opinions (Liverpool, 1801). The pamphlet contains the answers to three queries from five members of the bar, including Edward Law, the future Lord Ellenborough and Lord Chief Justice, Spencer Percival, the solicitor general, and William Garrow, who had made his name in the 1780s as the leader of the Old Bailey bar. A copy of the pamphlet is in the British Library at shelfmark T.1177 (1).137. Copy of Case, 4.138. The first of Sir John Jervis’s acts (11 & 12 Vict., c. 42) dealt with the duties of justices of the peace out of sessions with respect to persons charged with indictable offenses. For this legislation and the history of pretrial procedures in the first half of the nineteenth century, see Sir James Fitzjames Stephen, A History of the Criminal Law of England (London, 1883), 1:220–21; David Freestone and J. C. Richardson, “The Making of English Criminal Law (7): Sir John Jervis and his Acts,” Criminal Law Review (Jan. 1980): 5–16; W. Wesley Pue, “The Criminal Twilight Zone: Pretrial Procedures in the 1840s,” Alberta Law Review 21 (1983): 335–63; Bentley, English Criminal Justice in the Nineteenth Century, chap. 3. | |
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