The Criminal Prosecution in England and its Historians1
| DOI | http://doi.org/10.1111/j.1468-2230.1984.tb01634.x |
| Date | 01 January 1984 |
| Published date | 01 January 1984 |
| Author | Douglas Hay |
THE
MODERN LAW REVIEW
Volume 47 January 1984
No.
1
THE CRIMINAL PROSECUTION IN ENGLAND
AND ITS HISTORIANS'
I
FOR many historians with no particular expertise in the matter, the
doctrines of The Law rather resemble an impressive range of
mountains. They loom over the social landscape in every period of
the past in which historians labour, and they are undeniably im-
portant. The Law Mountains are said (by those who claim to know)
profoundly to affect the intellectual climate of an age. The frontier
between state and civil society apparently runs somewhere along the
line of their peaks. Finally, one of the recognised professional duties
of historians is to track every movement of a tiny gioup of very
important people. A surprising number turn out to be lawyers, often
from an Clite climbing club called The Bar. Many of these men have
-
achieved, in past centuries, a spectacular degree of upward mobility
(itself
of
interest to historians) through mastering the peculiar
techniques necessary to scale the slopes of the Law Mountains. We
watch in astonishment, from the ground, as our subjects make their
way up one or another commanding height of Law (and equally, of
social station).
But for most historians, that is about as close as we get. We do
not know much about the mountains, even less how to climb them
ourselves. Occasionally one of us will try to track the route of one
of those lawyer-mountaineers whom we usually watch from the
ground. It quickly becomes apparent that even a short walk in the
Law Mountains may require an intense, if improvised, course in
technique.' And to -get to the objective quickly (the imperative for
all legal climbers) one cannot linger
en
route
to ponder the origin of
the range, or
to
wonder at curious rock formations and admire the
goats. But that is what the historian will want to do: understand the
origins of the mountains, their stratification, the forces that shaped
The Chorley Lecture 1983.
I
was unable
to
give the lecture on June 8, as scheduled, to
my regret; what follows is a slightly revised version
of
my text.
1
am grateful
for
the
sympathetic understanding
of
the Directors
of
the
Modern Law Review,
in what were
for
me difficult circumstances. The lecture was written while
I
held an SSRC post at the School
of
Law, University
of
Wanvick, and without implicating my hosts in what follows
I
wish to
say how much
I
learned from them.
Eric Newby,
A
Shorr
Walk
in
rhe
Hindu
Kush
(Secker
&
Warburg, 1958).
1
2
THE
MODERN
LAW
REVIEW
[Vol.
47
them-and, incidentally, to admire the goats. If practising lawyers
are competitive climbers at heart, most historians are contemplative
geologists.
Historians tell a modern fable about the Law Mountains. It
concerns an historian-geologist who asked a lawyer-climber what he
knew about them. The lawyer’s answer was (of course), “Because
they are there.”3 “But,” persisted the historian, “how did they get
there? Why are some aspects
so
precipitous, others
so
gentle?
What’s
inside
the Law Mountains?” The lawyer missed the point.
“We have manuals that show all the feasible routes, graded according
to difficulty. (Indeed, even each assault by members of The Bar is
assessed by our most distinguished older members.) And our Mait-
land Club (few of whom actually climb the Mountains) can show
you reports on the main routes from past centuries, and incidentally
relate some marvellous tales about great men like Coke and
Mansfield who pioneered some of the best ones. Things
have
changed
a lot recently. Fellow-Servant Chimney, very popular in the nine-
teenth century, is now impassable. And a whole party was lost in
1924, in a rockslide started by a silly beggar named Campbell. It
quite changed this face of Old Fel~ny.”~
The historian, perhaps unwisely, stopped listening, and many
decades ago organised his fellows to tackle the Law Mountains in a
less sporting way. We are tunnelling. The computerised MOLE’
chews through parchment-paper conglomerates like butter, and Old
Felony in particular, which is not much bigger than Snowdon, will
be thoroughly honeycombed in the next
50
years or
SO.^
As the
archives are sounded, the patterns found in the records
of
the
hundreds
of
thousands
of
past cases for which records survive have
called forth two kinds
of
explanations which, although related, deal
with issues
of
different scale.
The first group of tentative explanations concerns the relationship
between the surface prominences of doctrine and the vast bulk
of
On a different occasion, he elaborated: “The view is terrific, the altitude intoxicating,
the technical problems endlessly fascinating. As a professional climber
I
also make quite a
lot
of
money.”
Law Reform (Personal Injuries) Act
1948;
see
J.
LI.
3.
Edwards,
The Law Officers
of
the Crown
(London,
1964),
Chap.
11,
for an account
of
the Campbell case, which led to
the defeat of the first Labour Government, and strengthened the quasi-judicial role
of
the
Attorney-General.
Mark One Legal Excavator. The computer has made it possible
to
handle the great
bulk
of
past judicial records, and to relate them to other social facts, in ways not possible
before. English criminal records invite such treatment, particularly for the period before
the nineteenth century: see Hay, “War, Dearth and Theft: the Record
of
the English
Courts” (May,
1982) 95
Past
&
Present.
The Maitland Club was digging long before.
A
very rough estimate (and any other is impossible) suggests that for the year
1783
(an
average one
for
the
1780s,
a busy but not grossly untypical decade for the courts) there
were less than
50
criminal cases reported, most
of
them settlement and other poor law
cases
(1-8
Brown’s Parliamentary Cases
(1-3
E.R.);
3
Douglas
(99
E.R.);
Caldecott’s
Magistrates
Cases).
In the same year there were
500
committals at the Home Circuit assizes
alone, and possibly a total
of
10,OOO
prosecutions on indictment, summarily before
magistrates, and on certiorari
or
by criminal information in King’s Bench, for the country
as a whole. Evidence for perhaps one-third
of
that bulk
of
cases (mostly on indictment)
probably survives, with comparable evidence for
each year
of
the eighteenth century for
the later periods, variable but generally lesser amounts for earlier.
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