Prosecution and Power: Malicious Prosecution in the English Courts

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Osgoode Hall Law School of York University
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Faculty Scholarship
1989
Prosecution and Power: Malicious Prosecution in
the English Courts, 1750-1850
Douglas C. Hay
Osgoode Hall Law School of York University, dhay@osgoode.yorku.ca
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Hay, Douglas C., "Prosecution and Power: Malicious Prosecution in the English Courts, 1750-1850" (1989). Articles & Book Chapters.
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8
Prosecution and Power ' .
Malicious Prosecution in the English Courts, 1750-1850*
DOUGLAS HAY
A bill of indictment was found on Friday by the grand jury of
Middlesex, against Lord Viscount Dungarvan, eldest son of the earl
of Cork. His lordship, being rather heated with wine, met a woman of
easy virtue, who calls herself Weldon, at one of the theatres on the
preceding night. On the play being over, she prevailed on him to take
her in a coach to her lodgings ... His lordship gave her a guinea, but
refused to enter the house. On this, Mrs Weldon became riotous, and
called the watch, saying if he did not give her another guinea, she
would charge him with robbing her of three guineas and a half. On
his refusal, the watchman seized his lordship, and detained him four
hours. His lordship's trial came on this morning at the Old Bailey,
and lasted six hours. The wretched prosecutrix ... [contradicted her
own testimony]; the jury said it was unnecessary to proceed further,
and begged that the defendant might be honourably acquitted. The
judge said ... although they had no such record as that of honourable
acquittal, yet it would be remembered ... the judge then said, 'My
lord Dungarvan, it is but justice to you to say, that it is impossible
you can go from this bar with the least imputation on your character.'
The prosecutrix and her witnesses retired from the court, amidst the
hisses and execrations of the audience.
Annual Register, 1791 1
... the accusatorial duties are too often conducted in the worst spirit,
and criminal courts of justice become subservient to the purposes of
passionate, vindictive, personal animosity.
Law Magazine, 18442
' I am indebted to many people who read earlier versions: in particular, J ohn Beattie, Barbar.a Black,
Reuben Hasson, J.M. Neeson, Ruth Paley, Nicholas Rogers, Paul Romney, and Michael Sonenscher.
The late Lord Harrowby allowed me to examine and quote the Ryder papers at Sandon, and the
Wedgwood papers are quoted by courtesy of the Trustees of the Wedgwood Museum, Barlaston,
Stoke-on-Trent, Staffordshire. My thanks to Chris Reid, Sam Marr , and Norma Eakin for assistance
in finding sources, and to SSHRC (Canada), ESRC (UK), and Osgoode flail Law School for
funding.
1
A11n11a/ Register, xxxiii (1791), 17 Jan. 1791, emphasis in original.
2
U. Pitt Taylor], 'Defects of Criminal Procedure', Law Magazine, 34/64 (1844), p. 257.
!- -- - -- - - -· -
Douglas Hay
344
I THE CRIMINAL LAW AS A LOCUS OF POWER
Mrs Weldon, a young prostitute from Derbyshire, may have been one of
the many in eighteenth-century England who had a relatively uncomplicated view of the criminal law. 3 If the verbiage of the lawyers, the
politicians, and the clergy was cleared away, it might be seen simply as an
. engine which inflicted inconvenience, financial loss, minor embarrassment
or great public shame, corporal punishment, banishment, and even death
on those who became its prey. For people from all social classes turned to
the criminal law, its terror and its stigma, to further personal conflicts,
some of them only once, some of them habitually. In trials they saw dramas
of public humiliation, in whippings and hangings the compulsive interest
of brute force. And they were interested in making that force serve their
private purposes of revenge, protection, or profit. The courts, the judges,
and the hangman were not, at such moments, the entities described by
jurists: embodiments of the common law, the Glorious Revolution, the
rights of Englishmen, the needs of public justice. Such prosecutors saw
them rather as parts of an enormously powerful machine, and their interest
was in finding ways to make its intricate principles of motion and crushing
weight, do their will.
We are familiar with other expressions of the power embodied in the
criminal law in this period. Power exists only in its expression, in the
imposition (against resistance) of the interests of some against the interests
of others, and we think first of the lawful coercion of those guilty of
offences, the great majority of which were offences against property. Here
the opposed interests were defined by social class, a fact frankly recognized
by contemporaries. Thus Adam Smith remarked with casual irony
. .. when ... some have great wealth and others nothing, it is necessary that the
arm of authority should be continually stretched forth, and permanent laws or
regulations made which may protect the property of the rich from the inroads of
the poor ... Laws and governments may be considered in this and in every case
as a combination of the rich to oppress the poor, and preserve to themselves the
inequality of goods which would otherwise be soon destroyed by the attacks of the
poor, who if not hindered by the government would soon reduce the others to an
equality with themselves by open violcnce.4
r-secondly, power mani~ested itself in .the deliberate crea.tion ~f social mean1 ings .around prosecutions and pumshments. In particular, there was a
3
But sec n. 164 below.
~ Adam Smith, Lectures 0 11 Jurisprudence [Glasgow edn.], ed.
by R. L. Meek, D. D. Raphael, P. G.
Stein (Oxford, 1978), p . 208, from the lectures of 1762- 3. In the version dated 1766 (p. 404 of this
edn., and first published in 1896), the passage reads less pungently, 'Till there be property there can
be no government, the very end of which is to secure wealth, and co defend the rich from the poor .'
Prosecution and Power
345
recurrent concern by gentlemen and judges to use criminal proceedings as
elaborate and public justifications, in word and ritual, not only of the justice
of particular proceedings, but of the law1 the unrepreS'entati ye constitution>
and social inequality itself. For the propertied, these truths were selfevident, but they could not assume that all Englishmen and women were
equally persuaded. Hence the interpretative project, teaching the poor what
to think ofla w, es ecially when the were believed to be dan erousl critical
of the existing social or er, by careful mani ulation of its ·
·
elements . ~
.. But the case of Lord Dungarvan, in which a prostitute put on trial for
his life the son of a peer (albeit only an Irish one, and admittedly without
success) invites us to examine more closely the large number of cases
which apparently embodied a different logic, concerned neither with the
punishment nor frightening of criminals, nor the justification of the social
order. In such cases, prosecutor and defendant were less often related as
social superior and inferior, and perhaps more often than in other criminal
cases, were well known to each other. The prosecutor sought above all to
humiliate or destroy, to protect him or herself from the law, or to use it
for extortion, rather than for the approved ends of recovering property,
deterring criminals, and justifying the social order. Of course, many commentators have acknowledged frankly enough that the satisfaction of a
desire for revenge is a legitimate, indeed important, aspect of many lawful
criminal prosecutions. 'The criminal law', wrote Sir J ames Fitzjames
Stephen in 1863, 'stands to the passion of revenge in much the same
relation as marriage to the sexual appetite. ' 6 Vengeance could not, however,
be legitimate in the eyes of jurists when it was expressed in unfounded
accusations, motivated by 'a wish to injure the party rather than to vindicate
the law', a ' use of law for other purposes than those for which it was
ordained'. 7
The law provided safeguards against abuse of the courts, and penalties
to deter the attempt. The fact that few eighteenth-century lawyers expressed great concern about such malicious and vexatious prosecutions, acts
which had alarmed the political classes of the seventeenth century, suggests
5 D. Hay, 'Property, Authority and the Criminal Law', in D. Hay, P. Linebaugh, E. P. Thompson
(eds.), Albion's Fatal Tree: Crime and Society in Eighteenth-Century England(London, 1975). The 18th-c.
argument that those meanings were most potently generated in the course of criminal prosecutions on
capital statutes, and that any reform therefore was ill-advised, was a staple of the supporters of capital
punishment in the early nineteenth century also. Opponents did not disagree about the purpose, but
they argued that capital punishment vitiated the usefulness of the criminal law to teach the poor: sec
R. McGowan, 'The Image of Justice and Reform of the Criminal Law in Early Nineteenth-Century
England', Buffalo Law Review, 32 (1983), pp. 89- 125.
6 J. F. Stephen, A Ge11eral View of the Criminal law of England (London, 1863), p. 99.
7 H. Stephen, The Law Relating to Actions for Malicious Prosecution (London, 1888), p. 37; Saville
v. Roberts (1698), S Mod. 394.
l
-
.. ---- -
-~
Douglas Hay
that the issue largely ceased to concern that level of society as one consequence of the consolidation of power by aristocratic oligarchy. English
gentlemen had much less reason to worry about the inventions of another
Titus Oates. Conspiracies such as Oates's, and the experience of oppressive
treason prosecutions throughout the seventeenth century, had resulted in
the 1692 Jury Act and 1696 Treason Act that gave added protection to
defendants in such cases. 8 Dubious political charges undoubtedly still
occurred, particularly against those suspected of Jacobitism. In 1716 a
Iligh Tory printer of Norwich whose house had been ransacked for arms
blamed 'the Whiggish malice of an All-Prately Neighbour, who very
ambitious of being a Rational Informer, has as Falsely as Maliciously
inform'd them that some of the bundles of arms were carried privately into
my House the N ight Before'. False charges ofJacobitism were undoubtedly
used for private purposes in the aftermath of the '45 also, both in London
and the counties. In one Stafford case, the gaoler and mayor of the town,
among others, were ready to testify that charges against one of the prisoners
in the gaol were both 'groundless and malicious'.9 But the conventional
wisdom of the eighteenth century with respect to political prosecutions
was that what procedural reforms such as the Jury Act of 1692 and the
Treason Act of 1696 had not cured, more independent juries, restraint in
the use of special state privileges such as ex-officio informations, and a
bench independent of the executive, should. Those issues were all contentious ones, but governments, and malicious informers, were undoubtedly much less able to use the criminal law oppressively in political cases
than had been the case in the seventeenth century. 10 With respect to
ordinary crimes, the possibility of malicious prosecutions aroused little
8 On Oates, sec J . Kenyon, The Popis/J Plot (London, 1972); on the origins of the i692 act that
increased jury qualifications see D. Hay, 'The Oass Composition of the Palladium of Liberty: Trial
Jurors in the Eighteenth Century', in J. Cockburn and T. H. Green (eds.), Twelve Good Men and True
(Princeton, NJ, 1988), p. 318; on the Treason Act see S. Rezneck, 'The Statute of 1696: A Pioneer
Measure in the Reform of Judicial Procedure in England', Jounzaf of Modem Ilisto1J1, 2 (1930), pp. 526.
9
The Norwich case concerned Henry Crossgrove: BL, Add. MS. 5853 fo. ro8v., Norwich Gazette,
21- 8 Jan. 1716. This and two London cases (William Bennett, PRO, SP37/14/226-']; John Cowden,
SP36/77/382- 4) were brought to my attention by Nicholas Rogers. For the Staffordshire case sec WSL,
49/143/44 (Parker Jervis Papers), statement by W. Scott et al. 29 Oct. 1747.
1
° For most of the century overtly political prosecutions were for seditious libel, mostly brought on
ex-officio .informations, and the arguments were about the rights of judges and juries to determine
what published words amounted to such a libel. For a recent account of the transition to seditious
libel, sec Philip Hamburger, 'The Development of the Law of Seditious Libel and the Control of the
Press', Stanford Law Review, 37 (1985), pp. 661 ff.; for the sign'ificanec of informations ex-officio see
D. Hay, 'Introduction', Crown Side Cases in tire Court of King's Bench (forthcoming, Staffs. Historical
Society); for contemporary criticisms of the independence of the bench, sec D. Hay, 'Scandalizing the
Court: A H istory of the First Hundred Years', Osgoode Half Law Journal, 25/2 ( 1987). Of course,
political issues still lay behind many malicious prosecutions that were not for political offences as such:
see below.
347
comment. The lawyers could point out that the doctrinal definition of
malicious prosecution and the nature of the legal remedies were clarified
by the beginning of the eighteenth century. Finally, Engli~h commentators
could point out that in all serious prosecutions, whether 'of treason or
ordinary felony, and usually in misdemeanour, at least 24 jurors, now
independent of judicial coercion, had to concur in the guilt of the accused. 11
Successful abuse of the law by private prosecutors was not, it would appear,
a matter of much importance.
Historians of the law, for the most part, have been equally complacent.
Recent writing about the eighteenth-century criminal trial, and the events
leading up to it, has tended to take prosecutions at face value. One account
has indeed presented the felony trial as a highly efficient means of reaching
good verdicts, unencumbered by exclusionary rules of evidence, and able
to make full use of the knowledge, testimony, and demeanour of the
accused, who was expected personally to rebut the prosecution case. The
tenor of the argument can too easily lead to the conclusion that reports
of eighteenth-century criminal trials therefore can be read as relatively
unproblematic accounts of the crime and its prosecution. 12 Perhaps because
most cases seem straightforward, often prosecutions of people caught in
the act, the question of malicious prosecutions has received little attention.
There is also little direct evidence in the court records that such false
charges were either common or serious in their effects. 13
But neither eighteenth-century silences nor historical research on the
usual legal materials alone give an accurate account of the extent to which
the criminal courts could be improperly made an instrument of personal
power. The issue is central to any system of criminal law. It concerns
nothing less than the balance struck between the escape of the guilty and
the conviction of the innocent, either by design or mistake. That balance,
and the historically shifting perception of imbalance on one side or the
other, depends in part on procedural innovation, in part on the attitudes
of the bench. But it also depends on the hopes and fe;us of different groups
involved with the law: hopes and fears about crime, about justice, about
legitimacy, and (as Lord Dungarvan's jury made clear) about honour. Once
we remind ourselves that the law is used for the furtherance of disputes as
On 18th-c. opinion and on the supposed role of grand juries (where a majority of at least 12 was
required for the case to be sent to trial) and of petty or trial juries (in which unanimity of 12 jurors
was required for a guilty verdict) in preventing malicious prosecutions, see sect. VI below. There was
no grand jury in prosecutions for serious misdemeanours (including seditious libel) carried on by
King's Bench informations.
12 J. Langbein, 'The Criminal Trial before the Lawyers', University of Chicago Law Review 45/2
(1978), pp. 263-316.
13 See Sect. II .below. Ruth Paley's account of thief-makers in London (ch. 7 above) demonstrates
how misleading the printed trials can be unless checked through extensive archival work in a wide
range of sources beyond those of the courts themselves.
11
Douglas Hay
much as for their resolution, we can free ourselves from the moral fallacy
that describes courts as simply places where criminals are brought to be
dealt with by judges, juries, or the state.
What follows is an examination of that wider context of malice and
vengeance in the courts. Beginning with the legal definition of malicious
prosecution and its consequences in law, the argument suggests that the
legal materials are in fact of little help in examining the social significance
of the malicious use of the law. That social significance can best be
understood by considering the groups most involved in such cases, and
their power to confer or deny legitimacy. Such an analysis is congruent
with the larger patterns of class power expressed in the criminal law, and
one conclusion is that malicious prosecutions, or the threat of them, were
common events in England in the eighteenth and nineteenth centuries for
reasons central to criminal procedure and the administration of the law.
This is not to say that some prosecutors of such cases did not consider
their actions just, justified, and indeed, constitutional. The contested nature
of legitimacy, in law and social practice, lies at the heart of almost every
case.
These issues came to appear dramatically significant to many nineteenthcentury lawyers and laymen: the words of the Law Magazine quoted at the
beginning of this chapter are typical of their comments. Many expressed
fears that malicious and vexatious prosecutions might undermine the
legitimacy of the law itself. Understanding why that should be so (when
little concern was expressed in the eighteenth century), and what the effects
of Victorian alarm were, helps us understand the social expectations of law
in the eighteenth century also. Malicious prosecutions were central to
popular attitudes to the criminal law and to the working assumptions of
magistrates, judges, and policemen in the period 1750-1850.
II MALICIOUS PROSE CUT ION AS THE LAW CONCEIVED IT
Lay opinions rather than legal ones are the key to understanding what
happened in the courts, but the means by which the latter often were
subordinated to the former requires that we map the co-ordinates of the
legal doctrine. We can then explore outwards into the less easily known
territory of social belief and practice.
By the late seventeenth century the legal doctrine of malicious prosecution was clearly established in its most important respects, as were the
defences against such actions. 14 Deliberately false accusations, even on
1
~ On its further development in the 18th and igth centuries, sec sect. IV below.
349
capital charges, had of course existed as long as the criminal law itself, and
the doctrine concerning them had constituted much of the law of
conspiracy. 15 Early cases made it clear that an action would not lie unless
the indictment had been preferred maliciously and without cause, but they
gave an absolute defence to a prosecutor who had knowingly made false
charges to a magistrate, and had then been bound in a recognizance to
proceed with the prosecution. 16 In prosecutions for minor misdemeanours
where neither scandal nor imprisonment nor corporal punishment could
result, an action was usually impossible until the end of the seventeenth
century.17 But as the judges widened the meaning of conspiracy (an<l
their own powers), the civil remedies for the emerging tort of malicious
prosecution were defined, and the scope of it debated. A number of points
had been ' much unsettled in Westminster Hall', and in cases in 1698 and
1713 the main ones were clarified. 18 The action became available in all
cases where scandal, punishment, or expense had resulted for the victim,
even if the grand jury had rejected the charge, or if the indictment had been
defective. 19 But the courts strongly restated the point that a prosecution was
not malicious simply because the prosecutor bore evident malice, no matter
how spiteful, towards the accused. It had to be proven also that he or she
knew there to be no reasonable cause for the accusation, and what was
reasonable or probable cause acquired sharper definition. In 1786 Chief
15
Holdsworth, A History of English Law (17 vols., London, 1903-']2) vi, p. 637; viii,' pp. 378 ff.; see
A. H arding, 'Origins of the Crime of Conspiracy', Transactions ofthe Royal Historical Society, 5th ser.,
33 (1983), pp. 109 26 for a criticism of the older view that they once constituted all the law of
conspiracy. See also P.H. Winfield, The History ofConspiracy and Abuse ofLegal Procedure (Cambridge,
192 T), ch. 5·
16 Jerome and Knights Case (1588), r Leonard 107, per Coke CJ, in an action founded on the writ
(sec below).
17 Saville v. Roberts (l698) cited above. Holt CJ remarked that 'Bridgman Chief Justice was against
all such action1>' (1 Ld Raym. 380). (Sir Orlando Bridgeman was Chief Justice of Common Pleas 1660
to 1667). The context leaves it unclear whether Holt meant a general hostility to the action (sec next
note), or only those where no scandal or risk of imprisonment attached to the prosecution.
18
Sec Saville v. Roberts (1698: 5 Mod 394, 405; 12 Mod 208; 1 Ld Raymond 374; T Salk 13; Carth
416) and Jones v. Given (17u : Gilb. Cas. 185, 10 Mod 214) for the scope of the writ of conspiracy
(based on 33 E<l. I st. 2) and the more recent action on the case for malicious prosecution. The latter,
the standard remedy by the 18th c., was more useful because the cases on the writ were confused
('there is more contrariety and repugnancy of opinions in them than in any other species of actions
whatever', Parker CJ in Jones v. Given {Gwy1111}, 10 Mod 219). Moreover, the action on the case could
be had for misdemeanour and treason as well as felony, and in other instances of abuse of the courts;
a single person could be indicted and convicted; and no acquittal was necessary. (The quoted words
in the text are those of H olt CJ, 1 Ld Raymond 377.)
19
Saville v. Roberts and Jones v. Givens established or reaffirmed that the aclion lies even if the
accused could not have been convicted because bill not found or indictment bad; one prosecutor can
be sued because conspiracy irrelevant; vexation of victim the foundalion of the action; possibly no
ground of action if the accusation is not for an infamous crime, or not otherwise damaging; but that
expense in defending oneself against the prosecution (even on a bad indictment for a charge without
scandal) is a ground for damages. The last point made the action available to those who had suffered
malicious prosecutions dropped at an early stage, or pursued in case of venial misdemcanours.
...
I.:.. · -· - --'- • ,_
350
Douglas Htiy
Justices Mansfield and Loughborough emphasized that want of cause
could not be inferred from evidence of malice, although the converse was
possible. 20
In addition to the leading civil remedy of an action for malicious
prosecution, it was possible for a victim of such proceedings to turn to
the criminal courts and prosecute the original prosecutor for perjury or
conspiracy to prefer a malicious indictment. 21 However, the use of the
criminal law was strictly limited. Malicious prosecutions on capital statutes,
though in effect attempts at murder, could not be .prosecuted as such even
when the grossest perjury had been shown, for fear that prosecutors would
be wholly deterred from proceeding. 22 And a prosecution for perjury or
conspiracy was both expensive and difficult, as it entailed the technicalities
and costs associated with trials for serious misdemeanour, and perhaps also
required (as a criminal proceeding) a higher standard of proof. 23
The action for malicious prosecution was therefore the most important
remedy for a victim of one. He or she soon discovered from the lawyers,
however, that in practice it was often impossible to sue. Over a long series
of reported cases the judges showed a marked lack of enthusiasm, and
discouraged such lawsuits: 'though this action will lie, yet it ought not to
be favoured, but managed with great caution'. 24 Caution on the part of
the judges was sometimes combined with cautionary tales for would-be
plaintiffs. In one case in 1704, the Lord Chief Justice reminisced about an
earlier case in which
A son-in-larv indicted his step-mother for poisoning her husband, his father; that
she, being acquitted, brought an action for malicious prosecution against him, and
recovered damages against him; that he, to requite her kindness, brought an appeal
of murder; and that she was thereupon tried, and convicted at the king's bench
bar, and carried down, and burnt in Berkshire, where the fact was committed . ..
So that people ought to advise well before they bring such actions. 25
0
' Joh11so11 v. S11tto11, in error (1787, 1 Term R 493 at 545), citing Anonymous 1704 (Warren v.
Matthews, 6 Mod 73). This leading judgement, con€erning a naval commander imprisoned by his
superior officer and prosecuted for not having advanced his ship on command, also addressed such
matters as the doctrine that the issue of probable cause was one of mixed fact and law.
21
Sec, for example, R. v. Rispal (1762, 3 Burr 1320), which also established that conspiracy to
charge wid1 an act not criminal in itself was conspiracy if the purpose was to get money.
22
J. F. Stephen, A History ofthe Criminal Law of E11g/and (3 vols., 1883), iii, pp. 246-7; W. Blackstone, Commentaries 011 the Laws ofE11gla11d, (12th edn., London, 1795), iv. pp. 196 7. See also J.C. Hogan, 'M.urder by Perjury', Fordham Law Review, 30 (196r), pp. 285-<)6, and Paley, ch. 7 Sect. VII above.
21
Costs were given to prosecutors and witnesses for some misdemeanours (including perjury) only
in 1826, by 7 Geo. IV, c. 64. For the complications and costs of such cases from the defendant's point
of view, sec Jones v. Give11 (17H), Gilb. Cas. 185 at 208; prosecutors shared these anxieties, given that
they could be saddled with all costs if they were unsuccessful.
z. Among other instances of this attitude, see H olt CJ in Sa ville v. Roberts (1698), 1 Ld Raymond
381; Jones v. Given (1711), Gilb. 209; Lee CJ in Rey110/ds v. Ke1111edy (1748), 1 Wils. 232; Eyre B. in
S111to11 v. Joh11s1011e (1786) J T erm R 505.
25
Joh11son and wife v. Browning (1704), 6 Mod. 216 per Holt CJ, citing Pigot v. Mnry Pigot (5
351
Sixty years later, Blackstone explained the reason for such judicial
hostility: 'it would be a very great discouragement to the public justice of
the Kingdom if prosecutors, who had a tolerable ground of suspicion, were
liable to be sued at law whenever their indictments miscatr.ied. ' 26 The policy
reasoning was based on what to foreigners was the most striking fact about
the administration of English criminal law: virtually all prosecutions were
private matters, conducted largely at the initiative and cost of the victim.
Inducements to prosecute (rewards, some payments towards costs) were
put in place in this period to encourage their enthusiasm for going to the
courts. The result was still a low level of prosecutions, compared to the
numbers brought in either the seventeenth century or the nineteenth. Had
prosecutors had to face the risk of being sued in turn, whenever they failed
to secure a conviction, the criminal law would have been enforced even
less often than it was. As late as the 1870s a Scottish judge remarked that
the barriers erected by the English courts against suits for malicious
prosecution were probably due to 'anxiety to protect parties from being
oppressed or harassed in consequence of having caused arrests or prosecutions in the fair pursuit of their legitimate interests, or as a matter of
duty, in a country where parties injured have not [as in Scotland] the aid
of a public prosecutor to do these things for them.m As late as 1886 Baron
Bramwell reiterated the 'old-fashioned' English view:
If ever there was a necessity for protecting persons it is an action for malicious
prosecution ... First of all a prosecutor is a very useful person to the community.
We have something in the nature of a public prosecutor, but everybody knows
that the greater number of prosecutions in this country are undertaken not by the
State but by private persons, or, as in this case, corporations. 28
The judges restricted lawsuits against prosecutors accused of malice in
two ways. One, which was to become most important by the early nineteenth century, was to define what constituted lack of 'probable cause', the
Elizabeth Lemen, 79 ER 1060, Cro. Car 532 (but the report cites Cro. Car 383). The 'appeal of murder',
usually termed appeal of felony, abolished in 1819 after a similar case, was an alternative to the usual
mode of proceeding on indictment. The woman was burned because it was a case of petty treason: see
Shelley A. M. Gavigan, 'Petit Treason in Eighteenth-Century England: Women's Inequality before
the Law', Can({di({n Journal of Women and tlze Lam (forthcoming).
zA Blackstone, Commentaries, iii. p. 216 and Christian's notes (12th cdn.). Cf. Parker C]'s comments
on earlier restrictive judgements on the writ of conspiracy, in Jones v. Given (171 l) Gilb. Cas. 185 at
209 (93 ER 307): 'The difficulcy, which stood most in the way of these actions, was the fear of
discouraging prosecutions, and the regard to what was done in a legal way to bring offenders to
punishment.'
27
Lord Colonsay in Lister v. Perryman, 4 HL 521 at 539, noting that in Scotland the entire question
was left to the jury (my interpolation). For the significance of the Scottish comparison, sec ch. 1 above.
28
Abratli v. North Eastem Railmay Co. (1886), l I Ap. Cas. 247 at z5z . .Bramwell also thought that
juries were too ready to give damages merely because the plaintiff had been acquitted.
352
Douglas Hay
most important basis for an action of malicious prosecution, as a matter of
law, for the judges to decide. 29 Judicial defini tions of what constituted
proof of want of probable cause were exacting. The result, as a Baron of
the Irish Exchequer remarked in 18u, was that the action was a very
chancy proceeding: ' In truth, in malicious prosecution, Defendants are
quite sufficiently entrenched; and to encroach further on the Plaintiff's
small remaining ground, would be practically to efface this right of action
from our Code.' 3° For much of the eighteenth century, however , control
over such actions was most often effected more directly through the
enforcement of a rule adopted by the judges at the Old Bailey in 1664, and
republished by them in May 1739. A copy of the indictment was usually
held to be necessary for an acquitted person to begin an action against the
prosecutor for malicious prosecution, and the judges decided to control the
issuance of such copies. In cases of felony the judges denied such applications except when they thought there was not the least ground for the
original prosecution. Until 18JI it was rarely possible to circumvent this
restriction on the use of the action. 31
One consequence of this attitude of the courts is that direct historical
evidence for serious malicious prosecutions is thin. Very few victims of
malicious prosecution on serious charges could begin civil actions, even
had they had the financial means to do so. In one year of Old Bailey sessions
in 1744/5, out of 395 accused, 226 were found guilty; of the remaining 169,
the court granted the acquitted prisoner a copy of his indictment in two
cases, and apparently considered the prosecution malicious in a third. The
judges granted a copy in only three of the Middlesex cases at the Old
Bailey in the next 7 years. 32 The most serious charges, many of them
capital, were tried in that court; there may have been more instances of
malicious cases at quarter sessions, where a prosecutor bringing false or
vexatious charges would be able to indulge his feelings without risking
29
Sec n . 134 below.
Sir William Cusack Smith, 'Reasons for dissenting from a judgement of the Court of Exchequer
in Ireland; including some brief notices of the law, as applicable lo ac tions for malicious prosecution',
in Tram 011 Legal and Other Subjects (Dublin, 1811), p. 196. On the case itself see sect. III below.
JI The rule for felony was reported in Kely11g's Cro1P11 Cases (London, 1708), p. 3 (84ER 1056) as
the seventh of the 'Orders and directions to be observed by the justices of the peace, and others, at
the sessions in the Old Daily ... made 16 Car. 2' by Hyde CJ, Bridgeman CJ, Twisdcn)., Tyril).,
and Kelyng J.:. 'That no Copies of any Indictment for Felony be given without special Order upon
Motion made in open Court, at the general Gaol Delivery upon motion, for the late frequency of
Actions against Prosecutors (which cannot be without Copies of the Indictments) deterreth People
from Prosecuting for the King upon Just Occasions.' The 1739 republication is reported in a note to
R. v. Bra11ga11 (1742), 1 Leach CC 27-8. T he rule was not always enforced, even at the Old Bailey:
for its vicissitudes, and its demise, sec sect. Vl and nn. 132- 4 below.
32
OB Proc., s Dec. 1744 to 17 Oct. 1745: sec p.37 (no. 71 Marshall), p. 63 (no. 123, Baggonctt), p.
205 (no. 315, Mansell); GLRO, MJ/GBB/318, fos. 99, 208 (Johnson als. Subley, Colley), MJ /GBB/J20,
fo. 162 (McAllister). I owe the GLRO references to Ruth Paley. Subley sued: see Subley v. Moll a11d
a11otlter ( 1747) Wils. 210.
JO
353
judicial murder. Quarter sessions was also the venue for most prosecutions
of perjury and conspiracy and false imprisonment. 33 But when we compare
a populous industrial county of the Midlands, Staff.ordshire, there were
only two prosecutions for conspiracy to indict in the ~ourse of 60 years
when over 6,ooo prosecutions took place at assizes and quarter sessions,
the most important criminal courts. 34 There was only one for perjury by a
prosecutor or his witness in a prosecution on indictment.35
The records of lawsuits in the courts at Westminster suggest that few
victims of malicious prosecutions began actions. The rolls of the three
common law courts for four sample years between 1740 and 1815, covering
over 3,000 civil cases, do not identify a single suit for malicious prosecution.
The fuller information extant for one court, Common Pleas, shows one
case out of a total of 7 lo actions in six sample years between the interregnum
and 1840. 36 Finally, of the 230 cases heard on the plea side of King's Bench
and recorded by the Chief Justice between 1754 and 1756, there were four,
two concerning the same case. 37 When a plaintiff was successful in such an
action, damages, which were the decision of a jury, could sometimes be
substantial: at mid-century only £21 for a false prosecution for assault (the
victim's expenses defending it), but £150 for a false accusation of capital
theft, and £200 for a m alicious charge of forging a promissory note, also a
capital offence. 38 Other juries awarded £ 250 for two nuisance indictments
laid by a sheriff of London, which threatened to destroy the livelihood of
a poulterer, £1,100 in another case in 1765, and £3,000 against a member
of the Corporation of Norwich found to have maliciously prosecuted for
n Research in the Middlesex quarter sessions records by Ruth Paley suggests that malicious
proceedings may have been common there. See also A. E. Simpson, 'Masculinity and Control: T he
Prosecution of Sex Offences in Eighteenth-Century London' (Ph.D. thesis, New York Univ., 1984),
p. 76, n. 107.
34
PRO ASSI 5/93 Staffs. Lent 1773, no true bill against Thomas Nock and James Saunders,
labourers, for conspiring and falsely accusing Richard Nightingale of petty larceny of goods of Richard
Nock, labourer, and Thomas Worscy, maltster, at Staffs. Ep. QS, where no true biJI was found; Staffs.
RO, QJSR Ea. 1773, indictment found against same men for conspiring and falsely indicting Worscy
and Nightingale, same offence, same sessions. The first prosecution was by Nock, the second by
Worscy.
JS R. v. Morris, PRO, ASSI 5/87, Staffs. Lent 1767 for perjured evidence in an assault case (not
guilty Lent 1768). There was also an indictment for perjury by the witness of a prosecutor for libel in
the Consistory Court of Lichfield: R. v. Smith, PRO, ASS! 5/92, Sta ff.~ . L ent 1772.
36 Dased on an analysis of Common Pleas writs of 11isi prius and posteas (the only court for
which they survive for this period) by form of action (PRO, CP 4 1/ 1, CP 41/ 54- 211, CP 42/22-3 for
interregnum and 17401 1765, 1790, 1815, 1840). I am indebted to Professor Clint Francis of Northwestern Uni versity School of Law for this information.
37
Sir Dudley Ryder's notebook, doc. 10, 12, 13, 15, 161 17. The cases are Fenwick v. Leader and
Good/ta/ v. Leader, doc. 16 pp. 2?-3 1 and 34 6; Folksto11 v. Holmes, ibid., pp. 38- 41; and Longs/ow v.
Boxal, ibid., pp. 54-6. These cases arc discussed below.
38
Pemvick v. Leader and Folks1011 v. Holmes (above, n. 37) and Jordan v. Lewis, Hilary 13
Geo. II (1740), King's Bench (cited in the report of Legatt v. To//ervey (1811), r4 East 3oz at 305
note a.)
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_. __ ... ____
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354
pcrjury. 39 At one stage in Sutton v. Johnson, a leading case involving two
naval commanders, a jury awarded £6,ooo, and a baronet acquitted of a
capital charge in i779 was awarded £10,000. 40 But such large awards
were exceedingly rare and most likely to be found in cases with political
significance. The rarity of such awards was a consequence not only of the
barriers erected by the judges but also of the expenses of going to law.
I
I
I
Given the difficulty of prosecuting or suing a malicious prosecutor, it is
likely that most of their victims were unable to get, or even to seek,
satisfaction at law. We are forced, then, toward two strategies to discover
the dimensions and meanings of malicious prosecution. One is to consider
the structural characteristics of both criminal procedure and English
society, and to construct an argument about the opportunities, motives,
and hence probabilities for malicious use of the law. The second, entailed
by the first, is to use a wide range of popular and casual, as well as learned
and professional, references to such prosecutions. Both strategies have the
effect of widening the scope of the inquiry. The sources speak to us equally,
and often in the same terms, of malicious prosecutions and of those
condemned as vexatious and illegitimate by one or other party, by jurors,
or by different groups in the community. In short, not only the intrinsic
interest of societal as opposed to legal judgements, but the sources themselves, force us to leave the neat verities of the law-books for the life outside
them. There, vengeance and malice was identified by different tests. And
even decisions in courtrooms were often determined by power-the power
to withhold legitimacy, or to create its appearance- rather than by the
tests of docu·ine, or the dichotomies of Lord Mansfield's decision in Sutton
v. Johnson.
III POPULAR DEFINITIONS AND PURPOSES OF MA LICIO US
PRO SECUT IO N
Malicious prosecutions could take place not only on serious charges on
indictment, the main concern of the courts, but also in proceedings before
magistrates. Penal actions, based on 'informations qui tam', were usually
summary proceedings heard before Justices of the Peace, without a jury,
in which· the successful prosecutor was entitled to a part of the fine or other
39
Farmer v. Sir Robert Darling (1766), 4 Burr. 1971; Lowfield v. Bancroft, 5 Geo. II, cited in Suhley
v. Mott and another (1747), Wils. 210; Hurry v. Watson (1787). On the last case, sec sect. III below.
40
Above, n. 20, for Sut1011 v. Johnson (the plaintiff lost when the case was reconsidered); Leith v.
Pope, An1111al Register, 22 (1779), p. 218.
,.
'
355
penalty (usually half) as an inducement to prosecute. 41 We can see more
about malice in these cases because a number of statutes provided that
some convictions before magistrates could be appealed to quarter sessions,
whereas criminal appeals on indictment were virtually.irripossible.42 Moreover, the economic reward for a successful prosecution, and the simplicity
of the procedure, invited prosecutions from even the poorest. As a result,
qui tam actions present us with much direct evidence about malice,
vengeance, and class definitions of legitimacy, issues on which it will then
be necessary to make more probabilistic judgements with respect to more
serious charges on indictment, the main concern of the judges.
The game laws were mostly enforced in qui tam actions. Hated by
prosperous farmers and other propertied men who did not qualify under
the laws which restricted game to landed gentlemen, such charges could
be put into effect either by landlords or by artisans and labourers. Since
respectable middling men were often, in the eyes of the law, poachers,
there were thousands of prosecutions which were well-founded in law but
which such men denounced as malicious and vengeful. One critic was no
friend (he said) to idle rogues who poached,
but when I behold laws which are said to be formed for the punishment oflaziness,
applied as instruments of oppression, I confess I long to have them repealed or
put upon a better footing; for in a well regulated and free government, no law
ought to exist, however well founded, that may be applied to gratify private pique
or resentment; and I believe the gentlemen of the law will readily agree that fifty
prosecutions arc commenced upon tyrannical and revengeful principles, to one
founded upon the honourable motive of serving the publick.43
The oppression might be that of a landlord, punishing electoral
disobedience, or any other resentment. A more serious problem, as many
respectable but unqualified huntsmen found, were penal actions brought
against them by common labourers, their social inferiors and sometimes
their own servants. Tom Wedgwood, the son of the great industrial potter,
was a keen sportsman who when a young man happened not to be 'qualified' .44 He discovered his vulnerability when he prosecuted a local poacher,
~ 1 Some could be heard only by justices of the peace, others could be taken before any criminal
court, even to King's Bench itself, with ascending cosls for the dcfondanl. Offences so created by
statute included game laws against unlawful hunting, infractions against customs and excise, offences
against turnpike acts which protected roads from abuse, and many others: for a summary to 1776, sec
F. Frankfurter and T. G. Corcoran, 'Peuy Federal Offences and the Constitutional Guaranty of Trial
by Jury' Harvard law Review, 39/8 (1926), and Blackstone Commentaries, iii, p. 160. Both penal actions
and prosecutions on indictment could be removed into King's Bench on certiorari (see n. 52 below).
4
z With the narrow exception of the writ of error, and stated cases on special verdicts. Some evidence,
of course, surfaced also in pardon appeals; examples are cited below.
41
[Samuel Purlewentl, A Dialogue between a Larvyer and a Co1111t~y Gentleman, upon the Subject of
the Game Laws (4th edn., London, 1775), pp. 37 if.
44
Josiah had never deeded him a manor, or enough land to give him a high enough income; as the
second son, Tom was not heir apparent to an 'esquire', another ground for qualification.
'- --~··-...
Douglas Hay
who promptly threatened a prosecution in turn. Tom found this rank
injustice: 'To be in the least controlled by such noted poachers as Toft,
has something very humiliating in it- and is a situation I don't care how
soon I jump out of- It is not only the real value of the £5 [fine] which
would fret one, but the idea that SUCH PEOPLE would in great part
reimburse themselves and always have this revenge in their power. ' 45
Wedgwood thought prosecutions under the game laws against poor men
absolutely just; when used by 'such people' they were not to be borne,
because the game laws were designed to establish social distinctions, not
subvert them. The poacher Toft clearly had other ideas. Wedgwood, of
course, could quickly establish his status as the son of a man of much
landed wealth, and he did so, to prevent future embarrassment. Middling
men could not, and they hated the power the game laws put in the hands
of their labourers and servants. 46
On the evidence we have, such cases were usually wholly lawful prosecutions: in the eyes of the law, an offence had been committed, or at
least the prosecutor believed it had. There was~ therefore, 'reasonable' or
'probable' cause for the prosecution. On the other hand, without an alibi,
and in the face of justices anxious for convictions under their cherished
game laws, ~~ farmer might well prefer to compound with an accuser rather
than attempt to defend himself against a wholly malicious prosecution.
Clearly, the determinative issue was credibility before the court, when clear
evidence could not be had.
The social and legal ambiguities are illustrated in another class of cases,
turnpike prosecutions. Here middling men were better able to impose their
own definitions of malice: even to render illegitimate in a court what may
have been a prosecution malicious only in their own minds and in a lay
sense. The turnpike laws, like the game laws, were a complicated mass of
legislation largely enforced by qui tam prosecutions. Statutes regulated the
number of horses, and the size of wheels, allowed on wagons using those
roads.47 The rewards (before 1773) were even more attractive: the successful
informer had the right to seize and keep all horses above the legal number,
together with their harness. It is clear that itinerant informers, usually
indigent industrial artisans and labourers, often made this their source of
livelihood. 48 They worked the countryside in pairs (as informant and
45
Wedgwood MSS (University of Keele), W/M 12, Tom to Josiah 5 and 9 Nov. 1788.
See the· threatened capital prosecution, cited n. 73 below.
7
• Principally 7 Geo. III c. 40, c. 42; 13 Geo. Ill c. 78, c. 84; 14 Geo. III c. 14, c. 36, c. 57, c. 82; 16
Geo. III c. 39; 18 Geo. III c. 28, etc.
5
• Sir Edward Littleton to the Staffordshire Clerk of the Peace re Godwin (appella11t} v. Parker:
SRO, QJSB Ep. 1771/12. See also the prosecution of Mark Jones for perjury, PRO ASSl 5/96 Staffs.
Summer 1776: asked 'How long he had taken up that trade (meaning an informer or Horsctaker),' he
answered 'He could not tell.' 'What, I suppose the informer and you are partners and share the money.'
'Yes, when we can get anything to share.' Cases in Staffs. QS for 1771/2 and 1781 /2 with occupations
•
6
357
witness), and their numbers increased when the trades in which they
ordinarily worked were depressed. Beyond the great rewards it offered (a
very ordinary horse was worth three months' wages) th~ legislation also
conferred power on the poor, in the form of blackmail threats which could
be used (for example) to protect themselves from prosecution for theft. An
outraged estate steward complained to his employer in one such case that
... the woodstealers and other thieves, pesters me sadly, the world never was, for
badness as tis now. T here is many reason for it but the worst and ch ief reason is,
the law for taking of horses. No farmer ... can do his business with so few horses
as 4 and if his hedges are pulled gaits and herdles took away trees lopped roots
stole if the farmer as putts the laws in execution, the first time he takes a horse
above 4 the horse is took of him, so whatever is dun must be put up so they grow
from thing to thing and in time every Honest man must be destitute of everything
needfull. 49
Like Tom Wedgwood at the hands of his poacher, the steward felt that
the moral order had been reversed . Newspapers furiously denounced these
'idle ruffians who, devil like, walk about seeking whom they may devour',
and in Oxford in 1765 a mob nearly. killed a 'horsetaker' who had been
foolish enough to appear on market-day, when many farmers were present
in the town.so The prosperous men suffering from such informers shouted
about gross misuse of the criminal law and denial of natural justice, even
though (it is clear) in most cases the prosecution was absolutely justified
in law. The law had in fact been broken, the informer was acting as the
legislature intended: malicious prosecution was not the issue.
Or was it? The press published accounts of informers intimidating
farmers with spurious documents supposed to be Exchequer writs, forcing
them to compound; victims of informers charged them with perjury and
collusion with their witnesses. And one newspaper correspondent counselled his readers to make themselves so conversant with every detail of
the legislation that horse-takers 'must either work, as they ought to do for
bread; or use such actions as may cause them to make an elevated exit at
the gallows'. 51 And he was right. Whether an information would stand or
be defined as malicious, whether a farmer lost his horses or was able to
revenge himself on the horse-taker, often depended on the power that
knowledge of the law, and access to the law, gave. When we see the response
show prosecutions agai nst three yeomen and a carrier, begun by a Wolverhampton snuffer-maker (2
cases), a gunlocksmith, two gunlockfilers, a cooper, and a shoemaker: sec n. 52.
49
Harrowby MSS, Sandon Hall, xxxvi, fos. 12- 13, letter of Henry Clark, Chipping Camden, 11
Mar. 1769.
so AlJG 7 Oct 1771; Jackson's O.\ford Journal, 29 June 1765. (I owe this reference to J . M. Neeson.)
See also ABC 7 .Apr. 1788 for a warning against informers, who were suspected to be working with
farm servants to inform against their masters.
51
ABC 24 June 1765, 9 and 16 Sept., 7 Oct. 1771.
-
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Douglas Hay
of the farmers, it is clear that the distinction between malicious and legal
prosecutions, a distinction which could only be made in the courts, was
none the less one shaped by class power.
Those convicted could appeal to quarter sessions (a bench of magistrates)
from the verdict of the single magistrate who had heard the original
information, or try to remove the case into King's Bench on a writ of
certiorari: four appellants in one county took this last, very expensive course
in the second half of the eighteenth century. 52 Both kinds of appeals were
well worth trying, because (in the words of one Justice of the Peace
reporting on a conviction he had made) 'the Statute leaves room, I think
for much learned Altercation among the Council, if they should chuse a
way; for much may be said on both sidcs.' 53 Legal counsel was indeed
most useful. The rules about su bsequently admissible evidence were often
unclear; frequently the case came down to an argument about the credibility of the farmer versus that of the informer; magistrates had reason
to feel unease about the tribulations of farmers whom they knew, and no
reason to sympathize with wandering artisans or unemployed rogues who
lived by informing.54 On the one hand, the bench might be inclined to
resist the introduction of new evidence, as it would have a tendency to
make their convictions perpetually questionable; on the other, they were
presented with claims by farmers, represented by lawyers, that poor men,
with strong inducements, had committed gross perjury. Moreover, farmers
could, and did , proceed directly to indictments for perjury and unlawful
compounding at quarter sessions and assizes, indictments tried before
juries composed largely of prosperous men like themselves. 55
Such procedural and class advantages were the means by which convicted
farmers defined prosecutions as malicious ones. They thereby recovered
their horses and sometimes punished informers with fines or worse. In
the cases studied here, several informers were convicted of perjury and
sentenced to the pillory and imprisonment in the house of correction, and
one man was transported for seven years. 56 Such sentences cannot fail to
51
Appeals to quarter sessions were common under 7 Geo. III, c. 40. See SRO, QJSO 16, Ea. 1770
(conviction of Owen, quashed), Ep. 1772 (conviction of Bucknall, quashed, and sec also ABC 19 Oct.
1772), Mich. 1772 (conviction of Powell, quashed), and the case of Parker v. God1vin, n. 48 above.
Other convictions returned to sessions, probably for appeal, include QJSO 16, Mich. 1771 (Hickman,
Goodall, Williams), Ea. 1772 (Green), Tr. 1782 (Feraday). For cases removed by certiorari, see PRO
KB 11 /38 Ea. 21 Geo TI, no. 9 (Stones, quashed), Trin. 21 / 22 Geo. II, no. 2 (Hand), KB n /45 Ea. s
Geo. Ill, nos. 15, 17 (Lowe, Crockett). For full details see Hay, Cro11111 Side Cases in King's Be11clt; on
s.i Above, n. 48.
Hand see n. 76 below.
5
~ Sec ABC 1 Sept. 1788 for a case in which Joseph Carles JP remitted the penalty for a farmer on
condition he publish a public apology.
55
I Jay, 'Class Composition of the Palladium of Liberty'.
51
' Prosecutions for unlawful compounding, extortion, perjury: Staffs. RO, Q!SR, Qf SO: Cooper
and Wood (Ep. q41/2); Lea and Read (Ea. 1764; also ABC 4 June 1764); Snape, Kirk, and Lee
(Ep. 1767, not guilty); Hodgkinson (Tr. 1762, gaol two weeks and recog. of £20). PRO, ASS! 5, ASS!
359
have had a chilling effect on men thinking of taking up the trade of horsetaker. In several other cases, farmers tried to convict horse-takers for horsetheft, then a capital offence, to cause them to make ·'an cl<;~vated exit at the
gallows'. 57
: ··
·
Such qui tam proceedings allow us to follow the use of the law by a
wider variety of people than in more serious cases. We can therefore more
easily track the disjunction between legal definitions of legality and social
definitions of legitimacy, and also the two-way connection between them:
the advantages given to those able to afford lawyers and exploit social
standing to define what is legal, but also the power which the law sometimes
gave poorer men and women to define as illegal what richer men considered
wholly legitimate activity. Penal actions relied on 'the common informer',
and it is unlikely that that class-charged word became associated with qui
tam proceedings by chance. Although historians have tended to report the
hostility of common people to informers, probably because in a few kinds
of cases (the gin riots, the hostility to societies for the reformation of
manners) there was much hatred , it seems likely that in most cases informers
were poorer men prosecuting wealthier ones. One reason for believing so
is that qui tam proceedings were often provided for the prosecution of
offences- notably poaching, excise, turnpike cases-where the state could
not rely on juries of propertied men to return convictions on indictment.
The motives and contexts revealed in summary convictions can be found
also in the evidence of prosecutions for serious crimes, from misdemeanours
to capital felonies. Here, for the evidentiary reasons already discussed, it
is rarely possible to say from the official record that a prosecution was
certainly malicious. It is possible, however, to identify what contemporaries
thought were plausible accusations of malicious proceedings, simply
because they knew that in cases of that sort, such things could and did
happen. When we can show (as we often can) that the social relations of
accuser and accused made it easy to lay false charges, and difficult to refute
them, the evidence becomes stronger. As a prelude to any generalization
about those social relations, it is helpful to consider the purposes such
prosecutions served their perpetrators. We have already seen examples of
the three principal ones, in qui tam proceedings: revenge, forestalling
2: Kirk (Lent 1750, pillory 1 hour and 3 months' imprisonment); Johnson (Summ. 1755, not guilty);
(Lent 1760 missing, but see ABC 24 Mar. 1760, Obadiah Wood and Thomas Wood both sentenced
to 3 months' gaol and 7 years' transportation); Lea, Homans, Read (Summ. 1764, fined £5 and
imprisonment l month and until paid; also ABC 4 June 1764); Allen (Summ; 1769, no bill); Scott and
Johnson (Lent 1772, not guilty); Stokes (Summ. 1772, no bill); Johnson and Clark (Summ. 1773, infn.
Thomas Simpson, apparently not tried); Jones (Summ. 1776, no bill).
57
In 1764 members of what was alleged to be one gang of horse-takers were arrested and held for
trial in Stafford; Worcester, and Shrewsbury gaols, at least some of them on the capital charge of horsetheft: ABC June 1764. Farmers also advertised in the hope of finding evidence that horse-takers were
involved also in theft: see e.g. ABC 20 Apr. 1772.
·--~---.-~
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Douglas Hay
legitimate prosecutions, and material gain. Those three themes are recapitulated in much more serious prosecutions for indictable offences.
Some serious false accusations were clearly motivated by the desire for
the most absolute personal revenge. It was common in violent quarrels to
threaten one's enemy with hanging or transportation, 'with anything that
he knew would take away his life', as one servant told his master, mentioning
a false charge of sodomy, then a capital offcnce. 58 Deadly family quarrels
could be conducted in this way, such as a case of a man who prosecuted
his daughter-in-law unsuccessfully for attempted arson, and then succeeded
with a charge of theft, for household goods which she had in fact borrowed. 59
Within small villages, virulent family feuds which had· simmered for years
might finally eventuate in a malicious charge. One Philip Huckle was
sentenced to death at Bedford Assizes in 1792 for stabbing a horse. The
evidence was circumstantial, and much concerned motive. The prosecutor,
Cook, had recently informed on Huckle for breaking fences, and this, with
evidence of Hucklc's hatred for the prosecutor, had convinced jury and
judge to find him guilty and leave him for execution. But a long history of
enmity lay on both sides, as subsequent applications for a pardon made
clear. Cook, a married man, kept Hucklc's disinherited sister as his mistress.
Shortly before the horse was killed, tempers on both sides were inflamed
when the unfortunate woman refused to agree to Cook's demands that she
abort their third pregnancy. Not all the magistrates and peers who interested themselves in the case agreed that this new evidence exonerated
Huckle. They argued simply that Cook had as much motive and opportunity for a malicious prosecution as Huckle had had for killing the horse. 60
Such cases, in which the most serious capital charges were pursued with
implacable hatred, arc the least common ones. I ..ike witchcraft charges in
earlier centuries, and treason charges when the state feels itself gravely
threatened, they must often have represented the culmination of long
quarrels between individuals or families, and occasionally a more widely
shared assessment that the accused had forfeited, over the years, the
protection of the community from the most awful power of state law. Both
in 1715 and 1745 there were doubtless many cases in which people tried
to settle personal scores by making accusations of Jacobitism to. the auth-
58
Staffs. RO, QJSR 1767 Mich., articles of peace of Richard Braddy against Richard L angton. For
the use of malicious and well-founded sodomy accusations in London by extortionists, see Simpson,
'Masculinity and Control', pp. 46o-z, 48o-z, and ch. lX.
59
PRO, SP 36/ 150 fo. 71. The outcome of this case, which appears in a box of undated criminal
petitions, has not been traced.
60
Mr. Justice Ashhurst agreed, reluctantly, to recommend a pardon on condition of transportation
for life. PRO, IIO 44/ 14, Ashhurst's report of 20 Mar. 1792, Ludlow to Grenville 22 Mar., letter to
T . Tattershall n.d., Wilberforce to Dundas 17 Mar., Tattersall to Dr Coke 12 Mar., Tattershall to
Grenville and Ashhurst 22 Mar., Mayor et al., n.d., Ashhurst to Whitbread 22 Mar.
orities. 61 Most conspiracies were less dangerous. A desire to inflict (at the
most) inconvenience and perhaps embarrassment was more likely to be
realized on a lesser charge, notably assault. 62 After a brawl on Hounslow
Heath in 1754 between a carrier and a traveller, the former prosecuted
both the traveller and an innocent friend for assault, and the latter recovered
his costs in an action for malicious prosecution in King's Bench. This case
may be typical of other malicious prosecutions for assault too, in that it
was only one of a series of legal proceedings on both sides. The traveller
had sued the carrier after the affray, and it was after that action was begun
but before it was tried that the carrier prosecuted for assault: he admitted
in court that he would not have brought the indictment if the action had
not been begun against him. 63
This was one of the most common motives for malicious or vexatious
proceedings. Whether as harassment of the other plaintiff or attempts
wholly to forestall prosecutions, they have been traced in judicial records
for earlier centuries also. Vexatious prosecutions, where the degree of
probable cause was moot indeed, were common in the courts in the
seventeenth century. Criminal charges of perjury and forceable entry, in
particular, were used to harass the other party to litigation being fought in
the civil courts. 64 This remained the most common motivation for perjury
charges in the eighteenth century, and assault and defamation charges were
commonly concocted for similar reasons. Even at the very highest level of
criminal proceedings, in informations in King's Bench, it was the case well
into the nineteenth century that many such prosecutions were instituted
solely as distractions and delays. 65 For those with less money, defamation
61
Above, sect. I.
In Byner v. Moore (1813) 5 Taunt. 187 [Mich. Term KU], an action for maliciously indicting for
an assault based only on evidence that a bill was returned not found, Mansfield CJ refused to set aside
a non-suit on the grounds that such an indictment did not contain scandal, nor involve any danger of
imprisonment, nor expose the plaintiff to expense: 'this bill was a piece of mere waste paper'. Most
dubious assault charges fell in this category, and were for similar reasons probably not the basis of
subsequent actions for malicious prosecution.
63 Cases cited in n. 37 above. In one respect the case was not usual: the traveller was a King's
Messenger, his counsel was the Solicitor-General, he laid his action in Common Picas, and he was
prosecuted on the assault charge in King's Bench.
M M. J. Ingram, ' Communities and Courts: Law and Disorder in Early-Seventeenth-Century
Wiltshire', J. S. Cockburn (ed.), Crime in E11gland 1550-1800 (London, 1977); T. G. Barnes, 'Due
Process and Slow Process in the Late Elizabethan Early Stuart Star Chamber', American J. of Legal
History, 6 (1962); W. J. Jones, The Elizabetlta11 Court of Clta11cery (Oxford, 1967), pp. 196-<).
6s Criminal prosecutions were used to circumvent obstacles to civil suits: 'It used to be a common
practice, where there was a dispute upon some pecuniary matter, io file a bill in the Court of Chancery;
an answer was put in; there was an indictment [of perjury I against the defendanL for that answer; it
was considered a common step in the procedure. Then, upon the indictment, very likely money may
be paid without a trial; and if there is a trial and a conviction, money is paid after the conviction to
prevent the sentence being carried into effect' (Lord Campbell (Lord Chancellor), PP 1854/5, xii,
Minutes of Evide11ce ofthe Select Committee 011 Public Proucutors 1854/5 [hereafter Select Committee 011
Public Proserntors 1854- 51, p. 66 (Q68o)). For instances, sec P11rcell v. M'Namara (1808), 2 Campbell
N.P. 199; Haddrick v. Heslop (1848), 12 QB 267.) See also p. i85, Q2394 (Sir Alexander James Cockburn,
62
l"i_,- ::--.-. -~
-.......,
. ~- -:::.-.-. ~
,,_:-.-
..._
- .• -_,,...___-. -. ----.---=..._~-:.-.,,
~~M ·-,.. ~
Douglas Ha,y
suits in the ecclesiastical courts, counter-prosecutions for assau lt in the
civil courts, were the means by which opponents in legal proceedings were
harassed and induced to settle. It was probably relatively easy to find a
witness prepared to swear falsely that an accused person had (as in one
case) called the prosecutor's wife 'a strumpeting whore', 'a nasty strumpeting whore', and a 'fat-arsed whore'. 66 In the early nineteenth century,
one of the reasons urged for abolishing the church courts was the 'odium'
they suffered as a result of defamation suits, often begun with malicious
purposes. 67 In the criminal courts, the prevalence of unfounded (or at least
implausible) charges for assault can be inferred from the fact that grand
jurors in the eighteenth century failed to accept the charges of over half
the prosecutors who came before them. 68
It may be that there was more use of malicious prosecutions as part of
litigation strategy in London, where the great number of courts, many of
them in almost constant session, made legal proceedings a natural way in
which to conduct disputes, and to manocuvre for advantage. 69 Certainly
there were men and women there who knew how to work the system not
only in petty quarrels, but to protect themselves from serious charges, by
putting a would-be prosecutor in gaol on a false charge, or even by
accomplishing his death. In one case in 1737, the conspirators sought to
eliminate a man dangerous to them through knowledgeable use of habeas
corpus, false character witnesses, successful application for a rule for
removal to a different county for trial, warrants of detainer on debt, and
finally indictment for highway robbery with perjured testimony. The
perjurors were not only paid, but supplied with respectable clothes in order
to impress the jury. When one of them, who later betrayed the plot, worried
Attorney-General); Edwin Chadwick, 'Preventive Police', London Revierv, 1 (1829), p. 299; Edinburgh
Review, 40 (1824), p. 192. Brougham argued that exclusionary rules, which hindered suitors from proceeding civilly, led them to use criminal proceedings: see Bodansky, 'Abolition of the Party Witness Disqualification: An Historical Survey', Kentucky Law Journal, 70 (1981-z), p. 100 n. 37. Sec n. J31 below.
66
R. v. Smith (perjury in Consistory Courl), PRO, ASSI 5/92, Staffs. Lent 1772; and R. v. Hodgetts,
defence brief, to the effect that H odgetls prosecuted Bickerton in Consistory Court and this prosecution
by Bickerton 'is trumped up in order to end that suit and get excused from costs' (WSL, HM
uncatalogued, Box 43/5, undated QJS notes). Malicious prosecutions in ecclesiastical courts were
actionable since the 17th e., if not before: Gray v. Degge (1681), 2 Jones 132; Car/ion v. Mill (1632)
Cro. Car. :z.91; Fisher v. Bristoro (1779), 1 Dougl. 215. In the 19th c. defamation suits were said to be
used by 'the lower classes': Law Magazine and Review, 7 (1832), p. 291; Report of the Commissioners
Appointed t~ Inquire into the Practice and J11risdic1io11 of the Ecclesiastical Courts in England and Wales,
pp. 1831-2 (199), xxiv, Appendix, p. 177, evidence of William Ward. I owe this reference and those in
the following note to Peter Bartlett.
67
Report of the Commissioners, p. 63;J11rist, 3 (1882), p. 399.
68
Based on prosecutions in 13 sample years of Staffs. quarter sessions and assize cases between
1742 and 1802: for sources see D. Hay, 'War, Dearth, and Theft in the Eighteenth Century: The
Record of the English Courts', Past and Present, no. 95 (May 1982), pp 120-I and n. 9.
69
Dr Paley shows in forthcoming work that prosecutions for theft were often used in Middlesex as
a form of pressure to collect rent.
that 'It was hard to hang a man wrongfully', he was told, 'It is no Sin, for
if they did not hang Him he would Hang them all.' After hearing all
this, the judge exclaimed, 'Why, truly I think we. are ii:i very bad Company on both Sides.' The jury found the three principal conspirators
guilty. 70
Such prosecutions were undoubtedly central to the power structures of
the London underworld, the moral universe of thief-takers and bloodmoney, which made and tlnmade Jonathan Wilde and surfaced in the
public press occasionally. Many less serious charges--of assault, petty
theft, and similar offences- were routinely used by a much larger class of
the poor and criminal. 71 An acquaintance with the law, as a defendant,
made one more likely to try to use that hard-won knowledge maliciously
as a prosecutor, in self-defence, in pursuit of gain, or for revenge. The
relative anonymity of the London courts, the undoubted importance of
trading justices, the large numbers of cases heard by jurors and judges,
the swarm of qualified and unqualified attorneys, all increased both the
temptation and the opportunity to use the law to further one's interests
and one's quarrels in this way. 72
But in rural parishes, too, exteµsive knowledge of at least one body of
law made certain threats to prosecute dangerous ones. Laws to protect
game and deer, already mentioned in connection with penal actions, certainly were so used from time to time, notably in connection with deerstealing. The threat of very serious prosecutions was a potent weapon in
the war between propertied farmers and petty thieves, because poaching
was so common among both classes that a farmer could not know when he
was in real danger of a prosecution if he prosecuted for theft. Such
calculations could also govern contracts of employment. I n one Northamptonshire incident a servant told his master, with evident contempt and
in public, that he could hang him if he pleased. The master, a tenant
farmer, made desperate attempts to silence him. The landlord's steward
passed on the interesting tale, adding, 'I do not think that [your tenant]
ever rob'd upon the highway, but I doubt [not that] your Lordship's [deer]
park has suffered by him, for he would not have taken his man Noble back
into his bosom again had he not had cause to fear the consequence of his
threatenings ... '. 73 In this case, the threatened prosecution may have been
well-founded. In others, a threat to go to a justice with perjured evidence
may have sufficed. A poaching farmer simply could not easily know whether
70
PRO, SP 36/41 fos. 139- 41, report of 6 July 1737; R . v. Warwick, Ba1vs, and Wills, OB Proc.
71
(1737), pp. 52- 7 (nos. 33, 34, 35). See also Paley, ch. 7 above.
See Davis, ch. Q below.
·i i Dr Paley's current work in the Middlesex cases in the Crown Side of King's Bench is revealing
much of this world of minor criminal litigation.
73
J. Wake (ed.), The Letters of Daniel Eaton to the Third Earl of Cardigan 1725- 32, Northa111s. Rec.
Soc. Pub., 24 (1971), pp. 134, 173.
Douglas Hay
his enemy had clear evidence against him or not, or whether even a
malicious prosecution might not succeed.
Forestalling prosecutions, or furthering litigation, or even being taken
back into employment, was one kind of gain. In many more cases, however,
the advantages of malicious prosecutions, or threatened prosecutions which
might or might not be well-founded, could be weighed in shillings,
guineas-or acres. In 1787 a Breconshire judge thought he saw evidence
of a plot behind the prosecution brought by some yeomen against a poorer
tenant farmer. The chief prosecution witness, who led the constable to a
half-flayed sheep in the prisoner's cottage, had sworn two years before 'that
he did not like the Prisoner, and that he would drive him from the land
he rented'. The desire to release land for new rentals could be passionate
in a community of smallholders, and might induce a sudden determination
to prosecute on the part of men who would otherwise have compounded
for the crime, or ignored it, in other circumstances. It was also a motive
for complete fabrication of evidence. The judge hearing the case admitted
only to serious doubts: the jury was determined to convict.74 In an Irish
case of 1809, which also illustrates the difficulties the victim of a malicious
prosecution could face, the English-speaking landlord was the instigator.
He had distrained everything his tenant had, from horses to implements
to furniture, to his last potato, when the September rent was late. Unable
to get in his hay without the horses, the tenant was beggared. To keep
himself, his wife, and ten children from starving, he dug up potatoes still
in the ground (which could not, in Irish law, be distrained) to survive the
winter. In April the landlord prosecuted him for stealing them, to realize
'his anxious wish and endeavour to get rid of him as his tenant'. 75
Such aims could be part of wider conspiracies, in which the different
motives of different people could converge in one false charge. A Staffordshire case of 1742 began with a charge against a farmer, James Hand, for
having salt, on which the excise had not been paid, hidden in his barn.
The prosecution witness was a pregnant servant whom his wife had turned
out of the house a few months before. The wife had later asked 'if she had
brought her big belly with her' and suggested a~ abortion, since it was not
her first bastard. In the brawl that followed the girl swore that 'she would
1
~ PRO, HO 47/6, John Williams to Lord Sydney, 6 Feb. 1787.
15
Willian} Cusack Smith, 'Reasons for Dissenting', passim. The tenant subsequently sued for
malicious prosecution in the Irish Exchequer (presumably with the assistance of some of the grand
jurors, who.threw out the indictments against him, or other gentlemen). He won a verdict with £500
damages, only to be non-suited subsequently. Baron Smith's summary of the testimony, the source
for this account, was part of his dissent from the non-suit. It was not delivered because a compromise
was agreed on. Smith published it as a discussion of the poinrs oflaw raised, but probably also because
he considered the original prosecution outrageous, although not surprising. As a baron of the Irish
Exchequer, Smith 'for many years ... enjoyed the highest respect and confidence ..., his leanings
towards catholic emancipation rendering him popular with the Irish public': DNB, xviii, p. 563.
make her mistress work for one year for she would swear against her
master', that 'she would be revenged upon her dame if she ruined her
master'. She informed about the salt, and testified to.a magistrate that the
farmer smuggled regularly.
., · ·
Hand was alarmed to find that the excise officer was bent on the most
ruinous kind of prosecution, suing for the penalty at Westminster and thus
vastly increasing the expense. H e therefore compounded, paying the officer
to stop proceedings. He was astounded to be indicted a little later for
receiving stolen salt, a much more serious, entirely criminal offence. With
good counsel, and by means we do not know, he was able to get the chief
prosecution witness to provide him with a full defence. The man testified
that the exciseman, the estate bailiff, and their male relatives had kept him
drunk and imprisoned for four days before committing him to gaol on
another charge, promising him an acquittal if he swore against Hand . Other
prosecution witnesses were tenants on the estate who were promised money
and pieces of land they coveted if they would testify, or were ejected tenants
who were promised recovery of their holdings. The motive of the two
prosecutors was also land: both the estate bailiff and his brother-in-law
wanted H and's lands for themselves. They had already been to view them
before his trial came on. 76
Sharing a reward, or the profits of land, could unite people in such plots,
but so too could political interest. One of the most famous cases in the
eighteenth century was Hurry v. Watson, which began with litigation in
Great Yarmouth and in various guises passed through five courts before
reaching King>s Bench in 1788. 77 Watson, an attorney, was registrar of the
Admiralty Court in Great Yarmouth in the year that his partner Reynolds
was both mayor and ex-officio president of the court. Hurry, a merchant,
had a dispute with them about r rs. he believed he had been overcharged
in expenses in a salvage case they had heard. In suing for the debt in the
Court of Requests (where his brother was commissioner) Hurry swore that
Watson owed that sum. Watson prosecuted him at Great Yarmouth quarter
sessions for perjury in that oath, and a grand jury that included many
76
PRO ASSI 5/63 Staffs. Lent 1743 1 indictment of Perkins (the man indicted as receiver after
refusing to pressure to be a witness against H and), Blakeman (another farmer, allegedly falsely accused
with H and), and H and; WSL, HM 21, brief for defendant in R . v. Hand, dated 23 Mar. 1742; HM
uncatalogued Box 421 briefs for defendants in R. v. Blakeman and R. v. Perkins. A year later, when
the landlord died, the estate bailiff, T homas Westhcad, brought an action for ejectment against Hand:
WSL, HM 21, brief for defendant date 25 Mar. 1744· Hand's troubles with the law were not over. In
1748 he tried on a writ of certiorari to question his conviction for assaulting horse-takers who had
seized three of his animals for contravening the turnpike act: PRO, KB u /38 Trin. 21 & 22 Geo. II,
no. 2; KD 29/ 408 Trinity 21 & 22 Geo. III; KB r/9 Ea. Vac. 21 Geo. IT (1748) and Trinity 2 1 Geo. II
(affidavits of service).
77
The following account is based on Robert Alderson, Proceedi11gs at the Assizes at Thetford ...
r8tlz March, I786, and., . 24th of March, r787, i11 the Trial of William Jlurry .. , (Norwich, n.d.), and
R. v. Watson et al. (1788) 2 TR 1991 1 00 ER 108.
r
I
.J
Douglas Hay
relatives and dependants of Watson and Reynold found a true bill. But
Hurry was acquitted at the direction of the trial judge when it became clear
that Watson and his witnesses had given misleading testimony about exactly
what Hurry had sworn in the Court of R equests. There was great applause
from the packed courtroom (even the grand jury had not been able to sit
in their usual gallery because of the crowd). For this was a political case,
and Watson claimed that Hurry's suit in the Court ofRequests was brought
against him, as mayor-elect, in order to embarrass him. Hurry in turn
alleged party motives for the perjury prosecution.
Watson at this point made a tactical error, and placed advertisements in
the Norwich Mercury and other papers that Hurry had been acquitted of
perjury only due to an error in the original indictment. Hurry sued for
malicious prosecution: if he could establish want of probable cause, the
advertisements were clear evidence of malice. 78 At the following Norfolk
summer assizes Hurry was non-suited on a technicality, but Common Pleas
set it aside and ordered a new trial for the following Michaelmas term.
When the action for malicious prosecution was finally heard in March 1787
before Justice Ashhurst at Thetford assizes, Hurry had as counsel Erskine,
whose eloquence was as spell-binding as usual, and got damages of £3,ooo.
Further litigation, and a compromise, reduced the award to £1,500. But
'\!atson, Reynolds, and their allies in the Yarmouth corporation were
foolishly unwilling to admit defeat. The corporation voted Mayor Watson
£z,300 for his expenses, as 'the assembly were sensible that Mr. Watson
was actuated by motives of public justice .. .'. Erskine pounced: he easily
persuaded King's Bench to grant a rule for an information against Yarmouth corporation for a libel on the administration of justice. Mr.. Justice
Ashhurst noted that he had 'never seen a stronger or a grosser case of
malice' than at the trial; Mr. Justice Buller concurred that it was imperative
to 'put a stop to the animadversions and censures which are so frequently
made on courts of justice in this country'; Mr. Just~ce Grose thought 'no
case ... calls more loudly for the interference of this Court by way of
information'.
R. v. Hand an<l R. v. flurry both illustrate the way in which criminal
litigation could escalate, and the way in which different courts could be
exploited by interested witnesses and prosecutors in order to seek revenge,
advantage, or power. Both cases, about which we happen to know much,
are also reminders that the origins of most criminal cases in this period are
hidden from us. This is true, t1' fortiori, of those malicious prosecutions in
which the defendant was unable to expose the imposture, or where, because
of the oral procedure of the common law, we now do not know what was
revealed in court to secure an acquittal. It is, therefore, impossible to
generalize from cases we know to be malicious directly to conclusions about
78
Chambers v. Robi11so11, n. 86 below.
the social significance of malice in eighteenth-century society. Another
approach, however, is to consider the relative opportunities of people of
different classes to make use of malicious prosecutions on indictment, from
our knowledge of how the courts worked, and from recurring contemporary
evidence abou t particular kinds of cases.
For most cases of malicious prosecution, alleged or established, occurred
in one of three relationships, examples of each of which we have already
seen. The first is prosecutions of men of middle rank, usually farmers or
tradesmen or professionals, by men like themselves, men like Hurry and
Watson. The second common form is prosecutions of servants by their
masters. The third is prosecutions by poorer women and men against their
social superiors.
It is likely that the most common forum for the last was a qui tam
proceeding, or through the opportunity afforded to poor witnesses to
participate in larger conspiracies conducted by wealthier men: both are
illustrated in R. v. Hand. 79 Occasionally small borough courts allowed
the poor opportunities usually denied them at quarter sessions or assizes,
at least in the provinces. 80 In London, it is clear that thief-takers and the
criminal poor who most often found themselves in court could learn to
exploit Middlesex and Westminster sessions, as well as the courtrooms of
trading justices and the Old Bailey itself: In general, however, prosecutions
on indictment were not often successful if brought by poorer men against
wealthier ones. It seems likely that grand and petty juries scrutinized such
cases closely, at least in the counties. Moreover, the dominant feature of
the criminal trial was the direct confrontation of accused and prosecutor,
and character was often as probative as other evidence. In such circumstances, poor men and women faced enormous disadvantages. 81 London,
as already noted, may have been a different matter, although the possible
advantages to the malicious prosecutor of corrupt justices and popular
familiarity with the courts was undoubtedly often offset by the 'advantages
of counsel for the defendant. Lord Dungarvan was able to impress the
court with a prepared statement in which he lauded the impartial justice
of his country, and to leave his defence in the hands of his lawyer. 82
79
Above, n. 76. See also R. v. Emmery et al., where a prosecution witness against parish officers
accused of removing an ill vagrant woman, thereby causing her death, was himself a pauper who had
been removed 7 years before, a fact exploited by the defonee to allege malice: WSL, HM 42/39 briefs;
PRO ASSI 5/76 Staffs. Summer 1757, L ent 1758; S. A.H. Burne, More Occasio11a/ Papers (n.p.
[Stafford], 1965), pp. 20 4. Burne incorrectJy states that Emmery was aquitted: all three defendants
were convicted and fined. Burne also suggests that the prosecutor, Sir William Wolseley, apparently
acted maliciously also.
Ro Erskine horrified the assize jury in Hurry v. Watson with a recent example from the borough
court of Colchester, emphasizing that such miscarriages of justice were common irt such courts: 'A
very reputable farmer was actually committed to gaol, as a felon, for having stolen sixpence out of a
bag belonging to a gleaner, whom he had desired to go out of his field ... ': Proceedings, p. 33.
82
Ht Sec sect. V below.
Seen. 164 below.
Douglas Hay
For the most part, then, malicious prosecution cases in the higher
criminal courts of assize and quarter sessions were of the first two types:
middling men of other middling men, and masters of their servants. A
fuller examination of each suggests some generalizations about their origins and their frequency. The evidence as a whole suggests that malicious
prosecutions helped replicate and enforce the existing structures of power
in English society, rather than subvert them. They did so not only because
of the way in which the law was administered, but in part because of the
terms of the law itself.
IV REPUTATION AND HO N OUR: MIDDLING MEN AS PROSECUTORS
AND DEFENDANTS
The evidence suggests that the 'middling ranks ' were abundantly familiar
with vexatious and malicious criminal litigation. Skilled artisans on
occasions appear to have used false charges of theft to punish fellow
workers, whether for personal or trade reasons. 83 Farmers and stewards
appear far more often, at least in the provinces. And there is a great deal
of evidence to suggest that townsmen who were in trade knew the value,
and danger, of proceedings in the criminal courts.
The most common false charges in such circles were for receiving stolen
goods, uttering counterfeit coin, or occasionally forgery. The first two
derived their usefulness from plausibility. Much retail and wholesale trade
was in second-hand items, honeycombed with intricate receiving networks
for stolen goods. And in a rather similar way, legal coinage was widely
supplemented (or even supplanted, in some denominations) by counterfeit
coins, often bought in bulk by large masters to pay their men. Some
tradesmen who received doubtful shillings and pennies made a habit of
giving out more bad coin than they took in because they were working for
coiners. It was thus very easy to construct charges of deliberate dishonesty
against the careless, or even scrupulous, trader. By branding a trader as a
man who either uttered counterfeits or received stolen goods on a regular
basis, a competitor might ruin him: the courts were accustomed to hearing
libel actions about accusations for coining for that very reason. 84 A criminal
charge to the same effect was even harder to refute, and perhaps even more
effective. One malicious accuser warned his victim that as he 'was a man
of cre~it ... that he ... had better make it up [by compounding] than have
83
e.g. R. v. Foster, in which three nailors testified that a fourth threatened to fire a stable: PRO,
ASSI 5/72 and ASSI 2/ 16, Staffs. Lent 1752, true bill, acquitted.
84 Two instances are reported in Speed v. Perry (Trin . Term, 4 Anne, King's Bench) z Salk. 697;
91 ER 590.
his credit blasted' .85 In such cases, charges were doubtless assessed on the
basis of reputation among those who knew both men, particularly since
the evidence often was circumstantial, and ignorance was a plausible excuse
to a jury.
The real damage could be done when the case achieved notoriety beyond
the circle of immediate acquaintance, and the growth of the press in
the eighteenth century opened precisely this opportunity to malicious
prosecutors. The courts explicity recognized this new danger in 1725. If a
prosecutor advertised the finding of an indictment in a newspaper, the fact
could be admitted as evidence of malice in an ensuing action. 86 But even
rumours of the charge, without actual laying of charges, could be persuasive,
particularly if the charge was the capital one of forgery. A Midlands
fishmonger accused by a competitor of forging a promissory note finally
appealed to a local justice of the peace, then advertised.his vindication:
... and whereas the said Strongitharm hath repeatedly in many places and
especially among my customers wickedly and maliciously and with an intent to
injure me in my business, aspcrsed my character in various ways, I therefore
publish the above fact, not only to caution the public against the imposition of the
said Strongitharm, but to clear myself of the charge brought against me, by which
I can only hope for a continuance of the favours of my friends and customers ... 87
Malicious prosecutions were a natural extension of such calumny, for a
true bill found by a grand jury, as contemporaries noted, was a stigma that
was not erased by acquittal. 88
The difficulties of bringing an action for malicious prosecution meant
that in cases that actually went to court, the accused was often forced to
counter with an advertisement. A Midlands bargeman, advertising his
acquittal in 1773, began by admitting that ' in those Trials wherein the
King is Plaintiff, there is the most exact Distribution ofJusticc'. But having
protected himself from any charge of vilifying the judges, he reflected on
some 'grievous hardships':
... it may be in the Power of a Villain, on fa lse Information, to have a Man of the
most unblemished Reputation, torn from the Arms of his Family, thrown into
Prison, there to pine away his anxious Hours till the Judgement of his Country
condemns or acquits him ... surely, if acquitted by his Country, such a Trial
ought to be considered as a Test of his Integrity and instead of rendering him an
Object for slander, to point her envenomed Finger at, should recommend him to
~s R. v. Rispnl (1762), 3 Burr 1320, 97 ER 852. In a case of 1776 Lord Mansfield noted that a
successful malicious prosecution could drive a man from business, and harm his credit: Farmer v. Sir
x6 Cl/(/mbm v. Robinson (1725), 2 Strange 691 ·
Robert Darling (1776), 4 Burr 1971 at r974.
87
ABG 14 Sep~. 1772.
88 Martin Madan, Thoughts 011 Executive Justice with Respect to our Criminal Laws, Pnrtic11/arly 0 11
tire Cirrnit (London, 1785), p. 231.
-·
.. - - '*
370
Douglas Hay
the Indulgence and encouragement of that Country, where his Innocence was so
manifestly proved ...
Unfortunately, the notorious fact that cases often failed on technicalities,
such as formal errors in the indictment, or on rhe failure of witnesses to
appear, made even acquittals on the evidence less convincing to the public.
Slander continued to spread. This man promised to punish his harassers
' to the utmost rigour of the law'. 89
These prosecutions were clearly part of the culture of the middling
ranks: carrying on personal, or strictly commercial, disputes through familiar means, by litigation. In principle, it seems likely that such cases were
simply an extension, into more serious charges, of the tendency of this class
to use the criminal courts for a greater range of purposes than did either
landed gentlemen or the labouring poor. That pattern can be seen too in
assault cases, where plaintiffs and defendants, in most parts of the country,
were overwhelmingly from the middling ranks. (In contrast, those of very
high status and those of low conducted their disputes with equals in more
honourable ways than snivelling to a grand jury: they duelled or brawled,
respectively, with their enemies.)90
Since a malicious prosecution for felony was one of the most useful
means to destroy reputation, it was used in spiritual as well as commercial
competition. In the eighteenth century M ethodists especially felt the
effects. John Wesley noted in his journal in September 1740 that when a
mob harassed the faithful and they were defended by a cons table who
commanded them to keep the peace, one of them swore before a justice
that the constable had picked his pocket, and had him bound over to the
next sessions. The prosecutor and his two witnesses secured a true bill
from the grand jury, but the score of witnesses on the other side eventually
secured an acquittal. 91 During a riot against dissenters in a meeting-house
in Hilston, Staffordshire in 1754, one of the rioters (after helping throw
muck and stones at the preacher) similarly swore that his pocket was
picked.92 There were many such instances, sometimes with the collaboration of Justices of the Peace.93
89
ABC 22 Mar. 1773· See also the case of Amos Archer of Snowhill, accused in 1782 of receiving
stolen goods, who was tried before Willes J. at Warwick, 'and was HONOURABLY ACQUITTED,
without any Evidence being called to speak on his behalf, much to his C R ED IT, and more SC AND ALOUS
to his intended Prosecutors' (ABC 29 J uly 1782).
90
When they disputed with inferiors, gentlemen sometimes used horsewhips instead, and the poor
were m6re likely to use anonymous threats and malicious damage against superiors. There is some
evidence that both the poor and the very wealthy increasingly using c riminal litigation to advance
personal disputes in the nineteenth century. On the poor, ch. 1 above and sect. IV below; on the
wealthy, see Hay, Crown Side Cases in the Court of King's Bench, See also nn. 154, 156 below.
91
(Ahr. edn., 1903), entry for 4 Sept. r740.
n PRO, KB 1/11 deposition of Edward Taylor, Samuel Perry, John Mills 30 Apr. 1754.
93
I give an account of the relationship ofWeslcyans with the Staffordshire bench in my forthcoming
book.
37 1
Honour and reputation were the objects of many of the malicious
prosecutions brought by middling men against others, either because
they were crucial to credit and custom, or because they were valued in
themselves. Poorer men and women, especially those:'in service, were
not usually credited with anything as exalted as honour or reputation.
They did, however, have (and could lose) their 'characters'. And because
middling men and gentlemen often had an interest in the question, malicious prosecutions were frequently directed against the poor.
V THE DANGERS OF DEPENDENCY: MALICIOU S PROSECUTIONS OF
SERV ANTS
Honore Gabriel Riqueti, Comte de Mirabeau, visited England on a whirlwind, opportunist, poverty-haunted tour in the mid-178os. In London his
servant Hardy disappeared with two manuscripts, both of them sensitive
items which the Count hoped to publish and thereby relieve his desperate
financial situation. Hardy also stole (according to the indictment), 27 shirts,
two cotton nightcaps, six pairs of silk stockings, two muslin stocks, one
muslin cravat, and three handkerchiefs. 94 On the advice of his English
friends, it was said, Mirabeau prosecuted at the Old Bailey. The case
aroused enormous interest, and the trial was attended by Lords Lansdowne,
Rutland, and Richmond, Edmund Burke, Dr Richard Price, Sir Samuel
Romilly, and Mirabeau's friend Sir Gilbert Elliott, as well as some of
Mirabeau's French enemies, who supported the defendant. Mirabeau's
fame as an aristocratic critic of French despotism partly accounted for the
prominence of the trial. But the audience and the papers were also there
because Hardy not only denied the charges, but accused Mirabeau of
bringing a malicious and false prosecution in order to avoid paying overdue
wages, for which the former secretary was simultaneously suing. He had
in fact got a warrant for the arrest of the Count.
The trial itself was not enlightening. After evidence from a number of
witnesses including his mistress (whose status was established in crossexamination) about washerwomen and laundry marks, and allusions to his
ignominious flight from France, Mirabeau himself testified that the warrant
for his arrest for debt at the suit of Hardy was served after he himself had
begun the prosecution for theft, and that Hardy had begun the action for
revenge. But when pressed, he would not give exact dates. The first witness
for Hardy began giving more evidence about Mirabeau's laundry. At that
point either the judge or Mirabeau wanted to hear no more about dirty
~
9
OB Proc. (1784- 5), pp. 385-<;6 (no. 306). The indictment mentioned only one book.
372
Douglas Hay
linen, real or figurati ve. After a short conference between the Count's
counsel and Mr. Justice Buller, the charges were dropped. Elliott at
Mirabeau's request addressed the court and took full responsibility for
advising the prosecution, defending the character of the Count (as his
old schoolfellow) unreservedly against the defence suggestion that the
prosecution was malicious. The judge concurred that the Count's honour
was not in the least impeached and that he had acted wisely. But after
hearing an interjection from H ardy's counsel that the servant had twice
requested his wages before Mirabeau brought the prosecution, Buller also
thought the evidence left no imputation on his character, either.95 Everyone
retired with honopr.
The ambiguous outcome may have resulted from the realization of the
principals that too much might come out in evidence. 96 What is of interest
here is that Hardy's charge that M irabeau had prosecuted maliciously was
repeated on very high authority. For in spite of what was said (or reported
to have been said) by Buller at the trial, the judge later repeated as fact
'that Mirabeau had had the villainy, because his servant demanded his
wages of him, and threatened him with an arrest [for debt], to charge him
with a felony, for which there was so little foundation that it was proved
upon the trial that Mirabeau had never been possessed of so m any shirts
as he had accused his servant of stealing!'97 The point is that Buller, like
any judge, had encountered many such cases, whatever he made of this
one. 98 And in most of them, it appears likely that the master misusing the
95 OB Proc., p. 396. Mirabeau, Elliott, and friends rushed out a report of the trial to minimize the
damage to the Count's reputation: sec the Public Advertiser, 28 Feb. 1785, which is p resumably the
'scrupulously exact account' that Sir Samuel Romilly says he helped draw up for publication next day
in one of the newspapers (Memoirs 3 vols., London, 1840), i, p. 82). It emphasizes Mirabeau's version
of the relative timing of the suit and the prosecution, makes no mention of the fact that Hardy's counsel
said he had twice claimed his wages before resorting to the lawsuit, suggests that Mirabeau graciously
acquiesced in a suggestion by the judge that the prosecution should be dropped for la.ck of sufficient
evidence, and, above all, celebrates the honour, probity, and minor role of the Count in the prosecution.
96 Both M irabeau and H ardy were probably guilty of obtaini ng the main property at issue (either
a copy of Voltaire's correspondence with d'Alembert, or a volume of scandal about the French court)
by improper means. This was the ' book' of the indictment. T hose interested can pursue the probabilities
in Louis de Lomenie, Les Mirabeau (Paris, 1889), pp. 576 ff; S. G. T allentyre, Life of Mirabeau (New
York, 1912), pp. 134 ff; D. Meunier, Autour de Mirabeau (Paris, 1926), pp. 144 ff; 0 . Welch, Mirabeau
(1951), pp. 130 ff; W. R. Fryer, 'Mirabeau in England, 1784-85', Rmaissance and Modem Studies, 10
(1966) pp. 43-'71 84- 5.
97
Romilly, Memoirs, i. p. 83. Mirabeau denied this allegation under cross-examination : OB Proc.,
p.394.
98
Rom.illy explained Bullcr's later account of events as the product of imperfect recollection
combined with lack of scrupulousness about a foreigner with a bad reputation: ibid. The context, and
some of Romilly's deft wording, im plies, rather, rank political prejudice against a man who had become
a leading member of the National Assembly of revolutionary France. But Buller, of course, may have
been right about the facts. If so, his conduct at the trial itself was probably a complaisant support to
the reputation of a gentleman having difficulties with a servant. When Mirabeau became a revolutionary,
no doubt for Buller he ceased to be a gentleman. As the author of a leading work on civil suits, the
judge was often cited as an authority on the action for malicious prosecution: e.g. M ansfield CJ in
Byner v. Moore (1813) 5 T aunt. 187.
373
law had very great advantages over the servant, for reasons intrinsic to the
contract of employment.
Wages were real but often indeterminate in the eighteenth century, as
contemporary comments (as well as recent historical work on embezzlement) make clear. For domestic and agricultural servants, very delayed
money wage payment was very common, and payment in kind- part
of the product, clothes, household goods, food-was the rule rather than
the exception. These customs afforded not only grounds for dispute about
what was customary- a large part of the argument about perks and
embezzlement- but also splendid pretexts for malicious prosecutions for
theft. Provincial as well as London cases illustrate the genesis of such
charges, and the kinds of defences that the bench must have heard in the
relatively few trials where defendants were able to use legal counsel to
make a case in the face of evidentiary difficulties. In almost all such cases
the employer sought to avoid fulfilling an unwritten agreement, usually to
pay wages, either in money or in kind. His means was an accusation of
theft against the servant. Sometimes the alleged theft was goods which
were part of the payment, sometimes it was other household items or
industrial materials which the ser vant, much earlier in the relationship,
had been allowed to have. Very frequently, because money wages were so
often in arrears to ser vants-years, even decades-a prosecution for theft,
or the threat of it, would be used to get rid of a servant who was becoming
too importunate. 99 Executors of estates, as well as employers, used the
tactic. 100 On other occasions, theft charges were used to avoid paying wages
when servants decided to leave service against the master's wishes. 101 In
one of the rare cases where a lawsuit for malicious prosecution resulted,
the nature of such conflicts was aired in King's Bench. A maid employed
by a Middlesex cow-farmer and his wife was at first treated better than
usual when she gave notice to quit, and was asked to stay. When she
refused, her mistress threatened to hang her. When she asked for her box
the day after leaving service, she was refused, and when she got a warrant
to reclaim her property, her master had her arrested and prosecuted
capitally for theft of money and lace. 102
99 An 1816 case similar to that of Mirabeau and Hardy, but resulting in an action of malicious
prosecution by a butler who had been prosecuted for theft when he sued his master for debt, appears
in the law reports: Davis v. Noak, 1 Starkie 377.
100 WSL, HM uncatalogued, box.µ, R. v. Ward a case of prosecution by an executor of the deceased's
housekeeper of 20 years for theft of wool, flax, and money which had been gifts, in order to avoid
paying 20 years of wages in arrears for which she was threatening to sue.
101
WSL, HM uncatalogued, box 42, case for defendant, R. v. Whitehall, Staff.'>. Lent 1740 (indicted
for petty larceny of straw which in fact been given the defendant by his employer the prosecutor;
prosecution begun .when Whitehall desired to leave prosecutor's service).
1112
Ryder notebook, doc. 16, p. 38, Hilary 1756, Middlesex, Eliz. Folkston an i11fa11t v. Thos Holmes
and Sarah his m((e. According to witnesses for the plaintiff, Mrs Holmes also expressed interest in the
- .~~
Douglas H ay
374
Masters also used false accusations to rid themselves of servants, including apprentices whom they were legally bound to support, for any of the
many other reasons they might have. The fact that they often lived in the
homes of their masters involved them in family quarrels and marital
infidelity that might become causes of malicious accusations. Sometimes
too obviously vindictive a prosecution miscarried, especially before an alert
judge. One young apprentice, on trial on a capital charge preferred by his
master for the theft of money he had actually been allowed to borrow, was
acquitted absolutely in 1787, before a judge who had watched Mirabeau's prosecution two years before:
·
... upon the trial Judge Perryn observed there was not the least reason to believe
the money was taken with a felonious intent, he reprobated the prosecution as
being one of the most unjust and malicious ever brought forward, said the prisoner
had established one of the best characters he had ever heard, and the jury without
hesitation acquitted him, amidst the applause of a crowded court. 103
! .
For every case with such a satisfactory conclusion, there were probably
numbers of others in which innocent men were convicted with as little
hesitation, if not as much applause. The usual characteristics of larceny
prosecutions favoured wealthier men bent on making malicious use of the
law.
Since domestic, industrial, and agricultural servants had the opportunity
to steal and abscond, it might be very difficult to defend themselves before
a jury of farmers and tradesmen. The obvious difficulty for the servant, in
cases where goods were in fact part of the wage, was the unattested nature
of the contract, its informality, and hence the fact that the trial (especially
without legal counsel) often resolved itself into a trial of the credibility of
a rich or middling master versus a poorer servant. In a legal context in
which ordinary breach of contract by a servant was already subject to penal
sanctions (three months' imprisonment in many trades) and similar breach
by a master was subject only to a suit for damages, criminal proceedings
against servants for petty larceny were not a matter of remark. Moreover,
the rigid dichotomies of legal definition often made plausible charges very
easy to construct.
For the law conceived a world in which all property had an owner.
Needless to say, day-to-day life did not flow in such neat channels. There
were casual dealings between families, friends, and neighbours that blurred
the edges: borrowing tools, sharing them over extended periods of time,
using household goods and fo~getting to return them, storing goods in
one's barn as a fa vour, handing on used clothes as a boon to servants. In
£40 reward given for capital convictions. The plaintiff, who contracted gaol fever in Newgate, received
£i 50 from the jury, although Justice Ryder privately thought £so would have been sufficient damages.
JOJ
ABC 27 Aug. 1787.
375
all such circumstances a master or employer, as a respectable person most
at risk from theft, with the right witnesses, could try to construct a
charge, with very little danger of being sued or prosecuted for malicious
prosecution. The pervasive elasticities of custom and convenience, which
worked well when both sides understood their limits, could become a sharp
liability for the weaker party when goods became the subject of criminal
charges.
Moreover, if a servant or labourer before the courts tried to suggest
malice or depravity against an apparently respectable prosecutor, the result
could be disastrous. One Ann Pugh, accused of theft in her master's house
in 1792, declared in her defence that the prosecution was malicious,
motivated by the fact that 'her Mistress was in liquor, and that her Master
wanted to have connexion with her ... '. Mr. Justice Grose curtly rejected
her story because she called no witnesses. The very fact that she had tried
to use such a 'very atrocious' defence helped determine him to transport
her for seven years. 104 If malice was hard to prove in such circumstances,
at least to the satisfaction of the judge, want of probable cause, for a poor
prisoner without counsel, was even more difficult to establish.
The crucial fact for a prisoner in such a situation was that so many trials
turned on credibility of accuser or accused in the eyes of a jury. The usual
discrepancy in their social status gave a clear advantage to the wealthier
prosecutor, as Serjeant Hawkins implicitly admitted in his explanation for
the fact that jurors in criminal trials, unlike those in civil trials, could not
be attainted for their verdicts. The crucial distinctibn for Hawkins was that
civil proceedings usually had matched adversaries, but a criminal trial
pitted the strong against the weak. Hence the need to forbid the attaint of
jurors, for
... if any such Examinations of their Proceedings were allowed in criminal Causes,
they might be often in great Danger of one Side, by incuning the Resentment of
a powerful Prosecutor, and provoking him to call their Conduct into Question for
their supposed Partiality; but they could have little to fear from an injured
Criminal, who would seldom be in Circumstances to make his Prosecution formidable. 105
That the rule prevented jurors being influenced is less likely: jurors and
prosecutors were both on average markedly wealthier men than the great
majority of those on trial. 106 But Hawkins' comment captures accurately
the reasons a propertied malicious prosecutor usually had little to fear from
his victim in the nature of an action or prosecution.
Ill~ PRO, HO 44/14, n.d.: report of Grose, petition of Harrison, testimony of Littleton Scott; ASSI
5/ n2 Staffs. Lent n92.
105
William Hawkins, Pleas ofthe Crorvn (6th edn., 1787), i, ch. 72 s. 5.
rn 6 Hay, 'Class Composition of the Palladium of Liberty', pp. 350-i.
-Douglas Hay
Occasionally the inequality of the criminal trial was mentioned by
eighteenth-century critics, usually middling men fearful of the deference
sometimes given the testimony of the very rich. One such pamphleteer
argued in 17 55 that if judges favoured the testimony of gentlemen of 'figure
and fortune', over those oflower status, no innocent man would be 'secure
against false A ccusations, and malicious Prosecutions of Men in Power'. Here,
as was usually the case, the argument was cast in constitutional terms, and
formed part of the entrenched (and growing) argument against aristocratic
power. 107 The more general case, the danger to the poorer and hence weaker
party who was the defendant in most criminal proceedings, was discussed
as common knowledge in one famous civil case tried a few months after
Mirabeau's fiasco with his servant Hardy in 1785.
Richard Arkwright, the spectacularly successful entrepreneur and
exploiter of the new technology of cotton, attempted in 1785 to revive his
very widely drawn carding patent, which had been held invalid in litigation
in 1781. His opponents accused him of having stolen the plans from a
former servant, the actual inventor, and having wrongfully reaped the
subsequent wealth. Arkwright's counsel responded with an attack on the
servant's testimony as that of a cheat and a thief, forced to flee Arkwright's
employment for his crimes on a charge of felony. Cross-examination
suggested instead that Arkwright had seized tools and models from the
man's house, claiming that they had been stolen, and threatening to
prosecute for theft if the servant did not drop his claims to the invention.108
Arkwright had never laid charges. Counsel for his opponents repudiated
utterly the claim that the servant was dishonest. And in open court, the
barrister stressed what every gentleman on the special jury knew to be an
inescapable aspect of private prosecution: that it gave unrivalled scope for
a powerful man. to use the law maliciously.
My learned friend says Oh! he is a sad man, a felon that committed larceny, and
fled from prosecution for fear of Mr. Arkwright. They chose to use that weapon,
that two-edged sword, Mr Arkwright frighten ed this fellow (awayJ ... I doubt it
not. There is not a more miserable or dangerous situation for a poor man, than to
be in possession of a secret, of which a powerful and rich man dreads discovery.
Gentlemen, History furnishes instances, where men have lost their lives for being
...
107
Advice 10 Posterity Co11cemi11g a Point of the La.st J111porta11ce ... by a Friend to Liberty and
Property (London, 1755), p. 24. The opposed witnesses in this case are described as honest tradesmen
and farmers.
108 Tiie Trial of a Cause i11stit11ted by Richard Pepper Ardm, Esq., his Majesty's Attorney Gmeral, by
Writ of Scire Facias, to Repeal a Patent Granted on tlu Sixteellth of December 1775, to Mr Rid1ard
Arkwright ... 25th ofJ1111e 1785 (London, 1785), pp. 65-6, J 09, 166-?. For an outline of the litigation
sec R. S. Fitton and A. P . Wadsworth, The S trulls and the A rfavriglits 1758- 1830: A Study ofthe Early
Facto1J' System (Manchester, 1958), pp. 76, 83, 86-<)o; A. P. Wadsworth and J. L . Mann, The Cotto11
Trade and Industrial La11cashire (Manchester, 1931), p. 495.
377
in possession of royal secrets; many a person has been driven out of the country
by the power of a private person, for the same reason.
The lawyers in this important case knew that the suggestion that a man of
Arkwright's eminence and greed had been prepared to make malicious use
of the law was perfectly plausible to a jury and a judge. It was plausible
because the practice, or allegations of it, were a commonplace, as we have
seen, of eighteenth-century English courts.
VI THE REDISCOVERY OF MALICIOUS PROSECUTION
False accusations in state trials had aroused much concern in the late
seventeenth century, but eighteenth-century commentators did not seem
to think that malicious prosecutions were a problem in need of a remedy.
Occasionally there is a passing reference. William Ilay MP, for example,
considering proposed legislation against assaults with intent to rob,
observed in his diary in 1734, 'It might occasion Malicious Prosecutions,
and People who bore ill will to others would prosecute them on any account
of this law, and, as they may be evidences themselves on the Indictment,
would go great lengths to prove it, in order to send them out of the way.' 109
Serjeant Hawkins, whose observations on the class bias in favour of the
prosecution in the ordinary trial have been quoted, expressed concern
about the rule requiring an acquittal before a writ of conspiracy could be
had. Too often, in his opinion, a malicious bill of indictment did its damage
even when the grand jury threw out the charge. 110 And a critic of the law
of libel thought juries should be able to consider a writer's intentions, as
there were 'many instances of malicious prosecutions, both on the score of
gratifying private animosities, and of carrying political purposes' . 111 But
the only cases in which the possibility of malice aroused intense legal
concern were prosecutions for rape. Judges, counsel, and commentators
endlessly quoted Hale's blunt dictum that ~it is an accusation easily to be
made and hard to be proved, and harder to be defended by the party
accused, tho never so innocent'. Taking the danger seriously, all-male
judges, jurors, and counsel co-operated in acquitting over 80 per cent of
109
N orthants. RO, L (C) 1732, Diary of William Hay, 13 Mar. 1733/ 4. I wish to thank Joanna
Innes for this reference.
110
Hawkins,'P/eas of the Crow11, i, ch. 72. See also Madan, Thoughts 011 Eurntive Justice, p. 145 on
malicious prosecutions and on the stigma even of prosecutions failing before the grand jury. Hawkins,
who was undoubtedly aware that the action on the case provided a remed y, was commenting on a
failing of the writ of conspiracy (see sect. II above).
111 rAnon.l A nother Letter to Mr A /111011 (L ondon, 1770), p. 45. On t his pamphlet, sec Hay,
'Scandalizing the Court'.
-
_p_ t ........
-- ... -. _.. •
Q _
Douglas Hay
the relatively few men accused of raping women, and almost 80 per cent
of those tried for the rape of children. 112
In general, however, it was tacitly realized that the possibility of malicious
prosecution was an inescapable consequence of the system of private
prosecution, and that too great scrupulousness would deter honest prosecutors. Moreover, profound examination of the issue would have required
a searching critique of many aspects of English criminal procedure, not
only the fact of private prosecution. As will be seen, the grand jury and
magistracy, where country gentlemen most participated in the administration of justice, were in fact the sites of the procedural problems that
encouraged malicious prosecution. It is not surprising therefore that not
much was said about the problem in the eighteenth century, except perhaps
with respect to trading justices. Sir Thomas Deveil answered such calumnies with the retort that malicious prosecutions were begun by rogues
against honest prosecutors; other evidence suggests that collusion in malice
may have permeated the administration of justice in London. 113 For the
most part, English legal commentators left such things unsaid, and were
at one in their celebration of English criminal procedure, whatever criticisms they might have of the law of punishments. Indeed, defenders of the
existing capital statutes often silenced their opponents by referring to the
almost universal assumption of English gentlemen that their criminal
procedure was as perfect as might be found in the civilized world, and that
the advantages it gave the defence necessitated heavy punishment for the
few found guilty.
One exception to this literature of panegyric was written by Francis
Maseres, and the circumstances in which he wrote were exceptional also.
He was one of the few eighteenth-century English lawyers familiar with
the other principal European model of prosecution, the inquisitorial procedure of France. As Attorney-General of ~ebec a few years after the .
conquest of 1760, he was led to explicit comparison of the two systems as
part of the intermittent British effort to decide upon a system of laws for
this new British colony of Canadians accustomed to the coutume de Paris
and the ordinances of the King of France. One of Maseres's principal
reasons for favouring that criminal procedure was that the secret inquiries
made by the French King's Attorney were
... more favorable to innocent persons falsely accused, than the method used in
England, by which a person charged upon oath by one witness before a single
11 2
Hale cited two dramatic malicious prosecutions: Sir Mathew Hale, The Hi;tOIJ' of the Pleas of
the Crown (2 vols., London, 1736), i, pp. 635-6. Acquittal rates at the Old Bailey: Simpson, 'Masculinity
and Control', Table 2, p. 814 (for 1730-1830); J. Drysdale, 'Evidence and Sentencing in Rape r715
1841 ' (unpublished paper, Osgoode Hall Law School, r985), p. 24 (for 17r5-<;>9).
113
T. Devcil, Observations
7, sects. VII, VIII above.
011
the Practice of a Justice of the Peace (London, 1747), pp. 17- 19; ch.
379
Justice of the Peace in the country, (oftentimes an ignorant and incapable person
unacquainted with legal proceedings, and the nature of evidence) must be committed to prison, or at least obliged to find bail for his 11ppearance at the next
Court of Gaol delivery, without so full an examination of all the evidence against
him, and a discretionary judgment passed upon it by the Magistrates (as is the
case in F rench law], which may turn out in his favour, and at the worst can only
cause him to be put upon his defence in a fair and public trial. In truth, this
method of proceeding, is of m uch the same advantage to an innocent person falsely
accused, as the Law of England would be, if felons, or other criminals, or persons
accused of being such, could never be arrested till after an indictment found
against them by a Grand Jury, which indeed seems to have been the L aw of
England in old times .. . Another advantage that innocent persons falsely accused
had in ... [Quebec], was that they were soon brought to a trial ... whereas in
England, a man may lie eight months in gaol before he has the same opportunity.
Maseres's short essay in comparative procedure may be the most extended
admission by a prominent English lawyer in the eighteenth century that
English criminal procedure was extraordinarily open to malicious abuse. 114
However, that conclusion became a common one in the nineteenth century.
This shift, from fatalism or complacency about malicious prosecutions,
to concern by the 1840s, had many causes. 115 Some of them are Bentham,
fears of the new police, the movement of lawyers into first the trial and
then the preliminary inquiry, the growth of the legal profession and legal
journalism, the concern to legitimize the criminal law by making it visibly
more merciful and more concerned with the rights of the defendant, and
the causes and effects of the searching inquiries condu cted into all aspects
of criminal procedure and criminal punishments in the first half of the
nineteenth century. The early and continuing debate on capital punishment, for example, had an effect: the 1819 Select Committee which made
some of the first strong recommendations for repeal of capital statutes did
so partly on the grounds that prosecutors often used them maliciously. 116
But the point to be made here is that the nineteenth-century criticism s
support the conclusion that malicious prosecutions were common in the
eighteenth-century also.
1H
[Francis Maseres], 'A view of the civil government and administration of justice in the Province
of Canada while it was subject to the Crown of F rance', Lower Canadian Jurist, 1 (185 1), p. 5 (my
interpolation). The document, written about 1770, is there attributed to WilJiam I ley, Chief Justice
of Qiebec from 1766, but Maseres's authorship seems certain: sec S. M. Scott, 'The Authorship of
Certain Papers in Lower Canadian Jurist', Canadian Historical Review, 10 (1929), pp. 335- 42.
115
Hay and Snyder, ch. 1, sect. VI above; and sec below.
116
PP 1819, viii, Report from the Selut Committee to Consider of so much of the Criminal Law as
Relates to Capital Punishment i11 Felonies, p. 6. The blood-money cases involving constables were recent,
but the committee was evidently impressed also by the investigations into apparent miscarriages of
justice in capital cases by the solicitor (later London alderman) James Harmer; sec e.g. James Harmer,
Murder of Mr Steele: Dornmmts and Observations Tending to Show a Probability of the Innocence of
John Holloway and 01ve11 Haggerty (London, 1807).
Douglas Hay
In summary, nineteenth-century commentators concentrated on a set of
interrelated structural deficiencies in legal procedure, the net effect of
which was to allow too many unfounded and malicious prosecutions to
reach advanced stages-even ultimate success. 117 In both the eighteenth
and nineteenth centuries, charges on indictment following the normal
course first were heard at committal proceedings before a magistrate, then
as the case for the prosecution before the grand jury in camera, and if a
true bill were found there, at trial before the petty jury. If a conviction
resulted, the case might be re-examined finally at the level of royal
clemency. Of these four tests of the evidence, the second, the grand jury
hearing, was considered by contemporaries to be the point at which
malicious prosecutions should be detected and blocked. After that point,
too much damage to an innocent defendant would result. Before that point,
little in fact could be done.
The reason that committal hearings before a magistrate were not considered a safeguard was due to the rule, observed until the early nineteenth
century, that in charges of felony made on oath the justice had very little
discretion to throw out what he thought unfounded or malicious charges. 118
That rule weakened in the nineteenth century, as committal proceedings
evolved into the modern preliminary inquiry, a trial before the trial. But
even then, it was argued, many magistrates were ignorant ,.of the law, or
took prosecution evidence in the absence of the accused, :and others were
reluctant to take the responsibility of dismissing charges, relying on the
grand jury to protect the innocent. 119 And since it was usual for a large
part of a county bench to do almost no criminal work, but nevertheless
occasionally to commit an accused person for trial, it was possible for a
malicious prosecutor to shop for a justice who would do so without demur.
Those conditions certainly obtained also in the eighteenth century.12° The
frequent result was the stigma of a charge being brought before the grand
jury at quarter sessions or assizes, a stigma that commentators in both the
eighteenth and nineteenth centuries agreed was not expunged by no bill
being found. 121
But the grand jury too was an inefficient screen for malicious
prosecutions. Only the prosecution case was heard, and unless the com117
The arguments equally concerned the failure oflcgitimate prosecution (sec ch. 1 and a forthcoming
account of prosecution in the nineteenth century in which I shall deal with this and other issues). I
have concentrated only on remarks about malicious prosecution in what follows.
118
Beattie, Crime a11d tlze Courts i11 England, pp. 268- 83.
iiv Select Committee on Public Prosecutors 1854/5, p. 185, (Q2394); PP 1837 (79). xxxvi, Third
Report from the Royal Commission 011 Criminal Lam, Ap p. p. r3; Jurist I (1827), pp. 197, 326; Pue,
'Criminal T wilight Zone', p. 352; Eighth Report, p. 314.
120
Maseres, quoted above and see H ay, 'Crime, Authority and the Criminal Law', p. 3 ro, for
evidence that a large proportion of justices committed very few prisoners for trial, and were therefore
unlikely to be acquainted wi th legal niceties or to employ a clerk who was. The probable result is that
121
they exercised little real control in committal proceedings.
Above, n. r r r.
mitting magistrate happened to be present (as happened in a minority of
cases in the counties, and not at all in London), there was no way to test
the testimony given in secret in the grand jury room against the version
given at committal hearings. 122 The reason was that grand jurors with few
exceptions were not allowed to see the original depositions taken by the
magistrate. 123 The most flagrant opportunities were offered, according to
critics in the 1830s and 1840s, in the special circumstances of a 'voluntary
bill'. I t was possible, in any criminal prosecution, to avoid a hearing before
a magistrate entirely, and to go directly into the grand jury room to make
a secret charge which, since the accused was never heard, was almost certain
to result in a bench warrant for his arrest, and a trial of which he had no
warning, often not even knowing the charge or the name of his accuser
before he appeared in court.
The practice, according to the · critics, was very common in London,
particularly in cases of misdemeanours, and this 'liberty of secret accusation' was perfectly made for malice. 124 Because all testimony before the
grand jury was secret, because the witness testified ex parte, an innocent
person threatened by the loss of reputation caused by a trial, ' perhaps for
an infamous offence' was anxious to compound the offence with his
accuser. 125 A committee of the London Common Council, investigating
such charges in 1837, reported that 'considerable evils had resulted to the
public' and that 'great injustices' had occurred through voluntary bills. 126
John Pitt Taylor, later a judge, wrote in the Law Magazine in 1844 that
122
S elect Commilfee on Public Prosecutors, 18s4/5, p. 105. Chadwick thought in the 1820s that grand
juries in the country usually in cluded someone with a knowledge of the case, and Peter Laurie thought
the same in the 1830s (Chadwick, 'Preventive Police', p. 299; PP 1835 (206), xiv, Report of the Select
Commillee House of 1.-ords, 011 County Rates, p. 65). In the 18th c. in Staffordshire, the committing
magistrate sat on the grand jury in less than half the cases.
123
Denby's Case (1789), 1 L each 514; Archbold's Pleading and Rvidem·e in Criminal Cases (14th edn.,
London, i859), pp. 217-18. Whether the rule was observed before 1789 is unclear; it is reported as
law or practice in J. Chitty, Practical Treatise on the Criminal Lam (London, i816), i, p. 82; P. Laurie,
An Inquiry into the Use and Abuse ofGra11dJ11ries (1837), pp.13, 21, 32, 40; Eighth Report ( 1845),
pp. 134, 239, 247. Mere absence of the witness was no justification (R. v. Rendle (1861), n Cox 209),
but Laurie, p. 22, notes that the clerk of King's Bench gave the grand jury a summary, as did the
T reasury Solicitor in the trial of Hardy in 1794. This innovation was refused in a state trial in 1796
(Crossfield). In the late 1830s a clerk al the Old Bailey and Mddx. sessions attended with the depositions,
but many juries ignored him because of their oath of secrecy, and the practice died out: see Eighth
Report, pp. 353, 358 n; PP 1856, vii, Report from the Select Committee on Public Prosecutors, p. 7,
Q96; W. C. H umphreys, Observations on the b111tility ofGrand Juries, and Suggestions for Their Abolition
(London, 1842), p. 12.
124
Humphrey's Obserwttions, p. 7, mentioning especially conspiracies, perjuries, nuisances, gaming
or other disorderly houses, false pretences, assaults, common and otherwise. The quotation is from
F. W. Maitland, Justice and Police (London, 1885), pp. 137-8.
125
Ibid. See also L aurie, An l11q11iry, pp. 31-3, 37, 41; Second Report, p. 87; Eighth Report, Appendix
c, 126p. 358.
Quoted in H umphrey's Observations, pp. 10-1 1. An attempt had been made to control the
practice in 1834 bys. 13 of the Central Criminal Court Act (4 & s Wm. IV, c. 36): no misdemeanour
bills (except for perjury or subornation of perjury) could be preferred to the grand jury unless the
Douglas Hay
the state of the law was an invitation 'to the most disgraceful practices: a
bill found by perjury becomes the instrument of extortion to the innocent
but timid man .... ' Perjury was 'daily practiced' before grand juries, and
because their proceedings were secret, it was impossible to get evidence to
convict a prosecutor or witness committing perjury before them. 127
Where extortion was not the motive, the voluntary bill was equally well
suited for harassment. An example from the law reports is Hewlett v.
Cruchley (1813). Cruchley preferred seven unjustified indictments for
felonious embezzlement before the grand jury at the Old Bailey, successfully; he did not tell Hewlett of his intentions or the outcome; he swore
his witnesses to secrecy and obtained an arrest warrant; and even after he
decided, on the advice of counsel, not to proceed against Hewlett, who
now knew of the prosecution, he failed to inform him, causing him much
expense in preparing a defence. 128 Whether or not a voluntary bill was used,
where a malicious (or merely vindictive) prosecutor in fact proceeded,
rather than simply abandoning the case or seeking to compound with the
accused, the result, in the opinion of the Attorney-General in i855, was
great injustice. The accused was 'subject to the grievance of imprisonment,
and to the harassment of a trial, and the degradation which attaches to a
man being placed in the dock as a criminal'. 129 An acquittal hardly did
justice to a man suffering such ignominy and expense.
It is clear from frequent references to the issue in the ninteenth century
that malicious and vexatious prosecutions were considered to be a serious
problem in the administration of justice. Yet the procedural problems
the critics described were all part of the law in the eighteenth century
also, when, as I have argued, comment was more muted. 13 Clearly,
°
prosecutor was bound as prosecutor or witness, or unless the accused was in custody or bound to
appear. In short, most voluntary bills for a misdemeanour were to become an impossibility in that
court: all charges would first be heard by magistrates. But volunLary bills continued to be preferred at
sessions and then removed into the Old Bailey; in many other instances, although the prosecutor was
bound in a recognizance, magistrates did so behind closed doors and without taking depositions: (Eighth
Report, App. A, p. 239, reply 20, J. Hargreaves). They implicitly recognized the right to prefer what
amounted to a voluntary bill simply by acquiescing in prosecutors' requests to be bound. And ineffective
as it was, the legislation applied only to the Central Criminal Court.
127
(J. Pitt Taylor], 'Defects of Criminal Procedure', La1v M[J-gazi11e, 34/64 (1~44), pp. 244-'7·
128
5 Taunt. 277. Hewlett had succeeded Cruchley, his former superior, when the latter had been
removed from the office of deputy protonotary of the Marshalsea court by order of the court.
129
Select Committee 011 Public Prosuutors, 1854/5, p. 185, Qz394 (testimony of Sir Alexander
Cockburn). Sec also Lord Brougham's comments about a Roman Catholic gentleman unjustly put on
trial for m\1rder because of the prejudices of the grand jury. He was acquitted, 'but he went down to
the grave with the stigma of having held up his hand on a charge of murder, in the dock among felons
at Lancas'ter assizes': ibid., p. 4. Because grand juries decided by majority vote in camera, responsibility
for such acts could not be assigned.
130
Perhaps the rule in Dmby's Case (n. 123, above) made both malicious prosecutions and compounding easier to accomplish in the late 18th and early r9th c., although the reach of the rule is
unclear. For an apparently maliciOl~s prosecution on a voluntary bill because no magistrate would act
on the stale complaint, sec R. v. Pe11idu als. Fernandez, OB Proc. July 1795, pp. 951-<J, esp. p. 952.
something had changed. There were in fact a number of interrelated
changes.
At a general level, the nineteenth-century concern with rationalization
of the common law, expressed in demands for codification, drew attention
to procedural anomalies and shortcomjngs. The fact that many criminal
prosecutions, even in the highest court, Queen's Bench, were mere tactics
for delay and harassment during civil litigation, came to seem unacceptable.
The fact that some of these suits were instruments of extortion because of
technical failings in the law attracted professional concern. When cases
were removed into Queen's Bench from lower courts, any constraint
imposed on a prosecutor or his witnesses by recognizances lapsed. The
result was that a malicious and shameful charge against 'a person of station'
was easy to make for the sake of a monetary settlement. It was equally easy
for 'a person of malignant disposition ... to ruin some humble object of
his hatred'. At enormous expense, an innocent victim might prepare a
defence only to find that the prosecutor failed to appear: 'the defendant is
acquitted, and returns to his home a ruined, and still a suspected man. ' 131
As critics drew attention to such prosecutions, the judges were beginning
to give wider remedies to those who had been victims of malice in the
courts. For most of the eighteenth century the law governing actions was
fairly static. As has already been pointed out, the judges had made it
difficult to sue a prosecutor, except in the most egregious cases of false
charges. There were some vicissitudes in the law, notably in the 1664 rule
that only a copy of the original indictment explicitly granted by the court
would be admitted as (the necessary) evidence of a felony prosecution in
the ensuing lawsuit. 132 In 1811 the rule was permanently weakened in a
131
J. Pitr Taylor, 'On the writ of Certiorari in Criminal Cases', Law Review, 1/1 (1842), pp. 1756, noting that such 'removals' of indictments into Queen's Bench (on writ of certiorari) became more
difficult when by 5 & 6 Wm. IV, c. 33 s. 1, a plausible reason was required. But before and after that
dale, removal released lhe witnesses from their recognizances, giving prosecutors complete liberty to
proceed or not, with any evidence.
132
See sect. II above. The rule was affirmed by Holt CJ in Groe11veldt v. 811rrell (1697), 1 Ld Raym
252; weakened by Lee CJ in Jordan v. Lewis (1740), 2 Str nzz, 14 East 305(a), allowing the use of
an ungrantcd copy, although the judge added that the officer of the court who made the copy might
be sued or found in contempt; and apparently abandoned by Willes CJ in R. v. Bra11ga11 (1742), I
Leach CC 27, who refused an application for a granted copy because every acquitted prisoner had the
right to a record of his acquittal for the mere asking. (The 'record' cited both the indiclment and the
process on it.) Willes appears to have been ignorant of the 1664 rule, but Lord Mansfield restored
the 17th-c. position for felonies, noting also that a granted copy was not needed in proceedings followi ng
a charge of misdemeanour, in Morrison v. Kelly (1762), l Blackstone's R. 384 (followed by Adams B.
in Evans (or C1011i1111) v. Phillips (1763), Selwyn's NP 944). In Sutton v. Jolmstone (Feb. 1786), l Term
R 518, counsel referred to the rule, but the month before the Recorder at the Old Bailey had refused
a defendant's request for a copy of the indictment in a forgery case with a directed aequittaJ before
enough evidence to show malice had been given, saying, ' I conceive it to be a mistaken idea that there
must be a copy of the indictment, for, [sic] an action of conspiracy or for a malicious prosecution may
be maintained without a copy of the indictment, granted by order of the Courl': R. v. Bevan, OB Proc.
1786, no. 189, pp. 288-<)1 at 291.
Douglas Hay
decision that a copy that had not been granted by a court could still be
admitted in evidence. 133 The judges had not abandoned their critical
scrutiny of such actions, however: they now controlled the action by
insisting that it was for the judges, rather than the jury, to decide whether
the original criminal prosecution was reasonable or not. 134 But the rule may
have made it easier for some plaintiffs to get their cases before the courts.
There is some other evidence in the case law that actions for malicious
prosecution were becoming somewhat easier to begin, and perhaps to win.
In a 1791 case the court decided that a prosecution for one offence was
not justified by the fact that there might have been reasonable cause for
prosecuting for a different one; in 1799 that an instant acquittal of the
criminal charge might be enough evidence of a lack of probable cause for
a plaintiff to win; in 1805 that where a prosecution was abandoned only
'slight evidence' of want of probable cause was needed; in 1812 that when
the indictment contained more than one count, the action lay if there was
no probable cause for any one of them. 135 Throughout the first half of the
nineteenth century the case-law developed. Not all the decisions made it
easier for a person claiming to be the victim of malice to sue his or her
prosecutor, but one line of cases after 1816 was clearly in that direction.
For the judges declared that the action could be the remedy for malice
manifested in the earliest stage of a criminal proceeding, when a s uspicion
was voiced before a magistrate, and not only when an indictment was
actually preferred. 136
The development of the case-law is almost certainly the reflection of the
movement of defence lawyers into criminal proceedings. Rare in the early
eighteenth century, defence counsel were increasingly to be found at trial
in the later eighteenth century, and their numbers undoubtedly increased
in the early nineteenth century. The skills and arguments they brought to
their clients were likely, on acquittal, to be logically turned to actions for
JJl Legatt v. Tollervey (1811) 14 East 3oz, relying on Jordan v. lewis (1740) rather than Evans (or
Gwuinn) v. Philips (1763). T he original rule in fact may have become redundant in the year 1786: see
preceding and following notes.
u 4 i.e. whether there was 'probable cause' for the prosecution: see sect. II above. The claim that
what was probable cause was a matter of law for the judge, not a matter-of fact for the jury, was argued,
and accepted, in Sutton v. Joli11sto11e ( 1786) 1 T erm R 492 at 519-zo, 545, citing a 1785 decision by
Buller]. {and a 1748 precedent}. This issue was the same one that aroused such controversy in cases
of seditious libel. In many areas of private law the trend in the early 19th c. was to make issues which
had been formerly questions of fact for the jury, questions of law for the court. Sec also n . 141 below.
135
Wicks v. Pentliam (1791), 4 Term R 427; Smith v. Macdonald (1799), 3- 4 Esp. 7; J11cledo11 v.
Berry (1805), 2 Campbell NP 203 (a); Read v. Taylor (18 12), 4 Taunt. 616.
136
Davis v. Noak (1816), T Starkie 377 (statement to magistrate that prosecutor suspected the
plaintiff of theft constitutes a charge of felony); Elsee v. Smith (1822), 1 D & R 28 (action lies for
maliciously getting a search warrant); Clarke v. Postan (1834), 6 C & P 423 (an oral charge before a
magistrate may be enough of a prosecution to ground the action, though there is no information,
summons, or warrant); Dubois v. Keats (1840), JJ Ad & E 329 (action lies for malicious charge made
to magistrate, whether or not the prosecutor is bound over to proceed).
malicious prosecution: in the process, they probably engendered the growth
in case-law that we have noted, just as they developed the law of evidence
in the criminal trial itself. 137 By the early ninetee.nth century, defence
counsel were also to be found at preliminary inquiries, although many
magistrates tried to keep them out, and had the right to do so. 138 The
lawyers who <lid get in evidently began not only getting charges dismissed
by the magistrates, but taking accusations of malice, even in cases dropped
by prosecutors, to the high courts. The action on the case for malicious
prosecution was thus extended to oppressive committal proceedings, a
development which would have astonished Sir Edward Coke. 139
As not only the trial, but a preliminary inquiry modelled on it, developed
into a clearly adversarial model, judges were likely to move away from the
ancient position that an unjustified prosecution might be hard luck on the
victim but that a lawsuit against the prosecutor was 'not to be favoured'.
The English judges were perhaps unlikely to follow Baron Smith of the
Irish Exchequer in all his arguments in 181l against making probable cause
too high a judicial barrier to plaintiffs, but many probably agreed with him
that
though it may be expedient to hold a jealous eye over proceedings of this class, it
yet would ill become the Law, to tantilize a Party; by giving him a form of action,
in which, unless by surmoun ting moral impossibilities, he never could submit his
case to the consideration of a Jury;- much less obtain a remedial verdict at their
hands . . . thus to baffle a Plaintiff, would not, so properly, be to discountenance
actions for malicious prosecution, as to encourage malicious prosecutions themselves:-a proceeding, at once repugnant to the moral principles of the Law, and
at variance with that spirit, in which it stren uously, and even vindictively, resists
any attempt, to turn it's process, or pervert it's sanctions, into instruments of
private malice or oppression ... 140
As public prosecution developed in Ireland, and police prosecution within
England, the ancient justification for discouraging actions against malicious
private prosecutors, that it was necessary to encourage legitimate prosecutions, declined in importance. In short, in the same period that a
lawyerization of the preliminary inquiry led to pressure for easier litigation
against malicious users of the law, the principal reason for blocking such
litigation was eroded. There is clear evidence that by the 1870s and 188os
some judges were uneasy about the doctrines that had been used to
discourage actions. 141
137
Beattie, Crime a11d the Courts in England, pp. 352- 76.
us Pue, 'Criminal Twilight Zone', pp. 339, 353, 362; Eighth Report, pp. 273; Harmer, Murder of
Mr. Steele, pp. 65- 6; Beattie, Crime a11tl the Court, pp. 276- 7.
139
See Jerome a11d Knight's Case (1588), n. 16 above.
1
-«> Smith, 'Reasons for Dissenting', p. 193, sic.
141
Above, sect. II and n. 136; Stephen, Malicious Proserntion, pp. 66-83;]. B. Thayer, A Preliminary
~---===-----------
Douglas Hay
It is possible that one of the consequences of doctrinal change and the
coming of the lawyers is that the court records in the first half of the
nineteenth century contain more actions for malicious prosecution than
were ever seen in the eighteenth century, absolutely, and perhaps proportionately.142 Even if that is not the case, several changes made the issue
one of wide public concern. Discussions of malicious prosecution in the
first half of the nineteenth century arose in the context of some related
proposals: for the improvement of the preliminary inquiry, for the appointment of more stipendiary magistrates, for the abolition of the grand jury,
but above all for the institution of a public prosecutor, a question canvassed
in the 1830s, 1850s, and 1870s. The professional, intellectual, and social
motivations for those involved in the debate were multifarious. 143 But one
important consequence was the creation of a public, professional critique,
by young barristers writing in the new professional journals. Both grand
juries and lay magistrates, the traditional guardians against abuse of private
prosecutions, were the frequent targets of attack, of a kind unthinkable in
the eighteenth century. Hungry middle-class barristers, interested in the
professional logic of replacing genteel laymen by qualified lawyers, and
often allied with reform attacks on aristocratic and gentry government,
now excoriated the supposed protections so complacently accepted by
country gentlemen. Grand jurors, said such critics, were likely to be
attached to 'the aristocratical party', and biased in political cases; if manufacturers, biased against unions. They protected magistrates who abused
their powers, including such men as the Staffordshire JP who committed
a boy of ten and his sister of seven years to prison, on a malicious charge
of stealing a duck. Excusing such judicial oppression because JPs were
unpaid was merely to admit 'that injustice is to be hugged, because it is
gratuitous' . 144
But apart from vested interest and the general intellectual and professional causes for an interest in legal reform, it seems likely that two
related facts generated much concern about the specific problem of malice
in the courts.
One was the sheer increase in the number of prosecutions on indictment
after the Napoleonic Wars. Grand juries, particularly in London, were
swamped from 1815 until the 1850s by an endlessly rising tide of prosecutions: hundreds of prosecutors, thousands of witnesses marched through
the grand jury room in a single sessions. In the more leisurely atmosphere
Treatise 011 Evidmce at the Com111011 Law (Boston, i898), pp. 22 1- 32. Baron Bramwell, however, thought
a restrictive doctrine was still necessary and desirable, especially for railway companies (n. z8 above).
143
But see n. 36 above.
.
Sec ch. 1 above.
These representative criticisms are all from one issue of one journal: Jurist, I (1827), pp. 196-'],
322~. The writer suggested solutions: stipendiary magistrates and public prosecutors.
HZ
l+i
of the eighteenth-century grand jury room, cases could be examined at
greater length (although we should not exaggerate this) and, even if they
were misled, grand jurymen probably thought they kn~w whether or not
they were. From r 8 I 5 to the 1850s it became evident ·that that was not the
case. No grand jury, unaided, could possibly hope to sort out the founded
from the unfounded charges. In such circumstances the grand jury could
not have more than 'a very imperfect knowledge of [any given] case', as
one barrister put it in 1845. 145
Secondly, the status of prosecutors appeared to be changing. With the
much more generous granting of costs, particularly after 1826, 146 allegations
of malicious and vexatious prosecutions increased, and in particular the
charge that prosecutions on indictment were now being begun by the poor,
motivated by the desire for costs, as well as for personal vengeance or for
other sordid motives. In the provinces, indigent vagrants were said to be
engaged in collusive prosecutions about old pairs of shoes, in order to claim
their expenses, and in 1829 Chadwick warned that full compensation for
private prosecutors would be dangerous, an incentive to 'improper' use of
the courts. 147 Even where costs were not an issue, the extension of policing
could make the law more available for personal ends. In London, the
commissioners noted in the early 1830s the importance of preventing the
poor from using the law in this way. They insisted on the necessity for the
police to have discretion to refuse to lock up an accused person until a
hearing before a magistrate, on the grounds that many charges were brought
' by persons utterly undeserving of credit' who would 'never appear before
a magistrate'. Such accusations were made by 'low women of the town, by
dismissed servants, and workmen, against their employers, and others of
known bad character, whose only object would be gained by gratifying
their revenge, and having the party locked up'. 148 In short, attempts to
meet the rising level of perceived crime by making it easier to prosecute,
either through more generous costs or the creation of new forces, had the
unintended effect of making it suddenly clear that the right to private
prosecution, if not subjected to new controls, inevitably made the law a
particularly useful instrument of personal malice. Even more disturbing was the discovery that that new and suspect group of men, policemen, were engaged in conspiracies with 'low attorneys' to prefer
vexatious, malicious, and oppressive prosecutions for the sake of the
costs. 149
i.s Eighth Report, pp. 229, 238. Sec also P . Laurie, An Inquiry, p. 9, for a Middlesex sessions in the
146
1820s at which the grand jury dealt with 600 bills in 6 days.
See above, n. 23 above.
147
Select Committee OT/ Public Proserntors, 1854/5, pp. 107-10; Chadwick, 'Preventi ve P olice', p. 297.
m Quoted in Wilbur Miller, Cops and Bobbies: Police Authority in New York nfld Lo11do11, 1830-1870 (New York, 1977), p. 67.
9
H See H ay and Snyder, ch. 1, sect. VI above.
.......-~ ..........................------------~~~~~~
~ ~~
Douglas Hay
.
'
Concerns about malicious prosecutions apparently declined in the later
nineteenth century, and the more radical proposals for changes in the
criminal law to curb them, and other defects in prosecution, were not
enacted. Incremental rather than fundamental change apparently succeeded
in removing much of the concern, and perhaps some of the reality, of
malicious prosecutions. The most far-reaching proposal, a system of professional public prosecution, did not come to be enacted in the nineteenth
century. Instead, the preliminary inquiry was refined, police accountability
was emphasized, Clerks took depositions before grand juries. Much later,
the freedom of private prosecutors to prefer charges without going before
magistrates was cut back. In the 1850s, Parliament took the first tentative
legislative step in curbing access to the courts by those who would abuse
them, by enacting the Vexatious Indictments Act, putting minor restrictions on private prosecutors anxious to use the voluntary bill. From the
creation of the Office of the Director of Public Prosecutions in 1879, the
foundation was laid for more scrutiny of unfounded serious charges. Other
controls over the private prosecutor, notably statutes requiring the consent
of the Attorney-General or the DPP, became common only in the twentieth
century. 150
The evidence therefore suggests that malicious prosecutions were particularly deplored in the early nineteenth century partly because of the
inability of the criminal courts adequately to scrutinize a greatly increased
number of prosecutions until the extension of summary jurisdiction from
the late 1840s; partly because a hungry and much expanded legal profession
had an interest in discussing the problem; partly because the courts allowed
more litigation by victims of malice; and also perhaps because malicious ·
proceedings were believed to be undermining the popular legitimacy of the
law even as it encouraged cynical abuse of the courts by a dangerous
poor.1st
With the rise of police prosecution, the focus shifts. By the twentieth
century, malicious prosecutions, together with investigation, arrest,
framing of charges, discretion to drop them, and compilation of evidence,
largely became consequences of police policy or the discretionary decisions
of individual police officers. Arguments about malicious charges were
largely subsumed in arguments about police corruption, accountability,
and control.
In the nineteenth century also such cases raised questions about the
fairness ·and efficiency of criminal procedure. If malicious prosecutions
were much more common then and in the eighteenth century than historians have realized, they also raise larger questions about law and its
isu See ch. 1 above, and D . Ilay, 'Controlling the English Prosecutor', Osgoode Hall Law Joumal,
151
(1983), pp. 177 ff.
See sect. VII below.
21/2
meanings at different levels of English society. For even when lawyers and
gentlemen were not much concerned with malicious prosecution, and did
not discuss it in print to any extent, we may be sure that a much wider
range of people in contact with the courts were awave' of its dangers and
its opportunities, and the coloration it gave to the criminal law. 152
VII PROSECUTION, POWER, LEGITIMACY , AND LEGITIMATION
A theme in some recent writing is that the criminal law in the eighteenth
and nineteenth centuries was a common inheritance of all English men and
women. In particular, it is asserted that because a wide range of social
classes made use of the criminal law in their own interests that the criminal
law in action was a class-neutral service institution by which gentry,
middling ranks, and the labouring poor punished the small criminal minority from whose acts they all suffered. An inference is that the criminal
law, or the police, or both, enjoyed widespread legitimacy in all social
classes. To support both conclusions, the principal approach has been to
examine the social class of prosecutors in order to construct a 'legitimacy
index': the number of poor or working-class prosecutors as a proportion
of the whole. A high index supposedly means the law enjoys wide legitimacy
because such people are resorting to the courts of the state. A low index
would suggest they do not approve of those courts or the criminal law they
administer. One of the first such calculations, for the Black Country
between 1836 and 1851, suggested that roughly 20 per cent of victims of
prosecuted offences were unskilled working men and women, and in some
years, half of all victims were manual workers, skilled or unskilled. The
inference seemed clear: 'making use of the law in this way, they showed an
acceptance of its basic legitimacy as applied to themselves and their
affairs.' 153 That conclusion is frequently cited, and similar interpretations
152
Like many in Grub Street, Smollett knew much about the courts first hand. Humphry Clinker,
the country innocent, suffered (11and12 June) a malicious prosecu1ion for the capital crime of highway
robbery, by a failed robber seeking the reward. Humphry was assisted in his predicament by a friendly
'gentleman ' (a professional highwayman), and saved when his accuser was himself shopped, in spite
of Mr Bramble's dangerously principled refusal to bribe the magistrate.
153
D. Philips, Crime fmd Authority in Victorian England (London, 1977), pp. 125-<). Philips in fact
significantly qualified his conclusion in other phrases: 'they must have believed that the system of law
had It/ feflst some element of justict and fairness about it'; 'the Black Country working class of this
period accepted important areas of the legitimacy of the criminal law' (emphasis added). Philips's Table
13 (based on quarter sessions only, a court that was probably of easier access than assizes) shows that
IJ" of 666 prosecutions in 5 sample years between 1836 and 1851 were of offences committed against
unskilled manual workers, and that those he defines as skilled and unskilled manual workers accounted
for 54% of victims in 1836, declining continuously to 29% in 1851. Philips's ratio (but not the decline)
is discussed as evidence for working-class altitudes by C. Emsley, Policing i11 Context, pp. 158-<); 0. J. V.
J ones, 'The New Police, Crime and People in England and Wales, 182<)-1888', Tra11sactiom of the
. . ...
390
Douglas Hay
have been given to profiles of prosecutors in the eighteenth century,
sometimes with the added inference that not only did the poor believe that
the law was a class-neutral service institution that rendered them justice,
but that it was. 154 Closer consideration, however, suggests that such statistics, and even more, such interpretations, may be deeply misleading, for
two kinds of reasons.
Some are technical. Police practice, after the establishment of the new
forces and perhaps before in some areas, dearly could greatly effect the
numbers and kinds of cases that were committed for trial. Some evidence
from the first half of the nineteenth century suggests that their anxiety to increase the numbers of cases they brought to court could distort prosecution ratios as measures of victims' choices. 155 The vagueness of some of the
occupational distinctions, and the width of the categories also present
problems in both the eighteenth and nineteenth centuries: trade descriptions in particular conceal great variations in wealth and status, and an
uncritical use will underestimate social standing. 156 When we can penetrate
-.::tJ
Royal Historical Society, 5th scr., 33 ( 1983); B. Weinberger, 'The Police and the Public in MidNinetecnth-Century Warwickshire', in V. Bailey (ed.), Policing and Punishment in Nineteen th-Century
Britain (London, 1981), p. 71; R. Reiner, The Politics of the Police (Brighton, 1985), p. 41, and by
others.
is~ Notably J. Langbein, 'Albion's Fatal Flaws', Past and Present, no. 98 (1982), pp. 101, 105 (citing
the un published statistics of P. King and (unacknowledged) myself: sec below, n. 156). For qualified
assessments, see J. Brewer and J. Styles, A11 Ungovernable People: The English a11d their Law in the
Seventeenth and Eighteenth Centuries (London, 1980), p. :zo: 'a multi-use right available to most
Englishmen', although they also appear to exclude 'the labouring poor'; P . King, 'Decision-Makers
and Decision-Making in the English Criminal Law, 1750-1800', Historical Jo11r11al, 26/1 (1984): 22%
of prosecutors al Essex quarter sessions (no data for Essex assizes) were labouring men, who appeared
in 'large absolute numbers' (pp. 28-31); 'the law in relation to property crime was a resource available
to and used by almost every layer in eighteenth-century society' (p. 33) (but see also n. 150 below);
Beattie, Crime and the Courts, pp. 192-8: 14% of prosecutors at Surrey quarter sessions (no data for
assizes) were unskilled men who probably prosecuted 'for the same reasons that richer men did';
althoµgh the legitimacy of the criminal law might not have been 'accepted in its entirety throughout
society', values about the laws of property crime were 'widely shared'.
•ss See ch. 1, sect. VI above on police practices by mid-century. Philips's figures suggest that in 2
of his s sample years, 1839 and 1847, parish constable and new police activity accounted for about half
of the prosecutions brought by the unskilled working class; Philips, <:;rime. a11d.A11t/1ority, pp, 124:....5;Table 13 (a,b,c). These figures and those cited in the 1ast note but one are probably misleading asevidence of prosecutorial attitudes, and not only for the general reasons given in the text, and in
Chapter I above. Staffs. county accounts for 68% of Philips's sample of cases (ibid., p. 291). and yet
it was the county about which we have most evidence at mid-century of police malpractice in fomenting
vexatious, unnecessary, or uncompleted prosecutions, and of conspiracy with 'low' attornies. Moreover,
su;h practices were said to be most common in cases where the complainant was poor: Se/eel Committee
o~lic P;osemtors, 1854/5, pp. 30-1, 100, 104 6; Philips, Crime and Authority, p. 139 n. 50.
~angbein, in a confused argument that purported to show that I wrongly concluded that all
prosecutors came from the 'elite', wrote 'I think anyone who studies a volume of the Old Bailey
Sessions Papers will conclude that the victims seldom come from the propertied elite': Albion's Fatal
Flaws', p. 101. In fact that was a central point of the argument I made in Albion's Fatal Tree (see
pp. 5~0); as in most other respects, Langbein completely misrepresented it. See also H ay, 'Crime,
Authority and Criminal Law', pp. 395--6 for my own unpublished statistics at th?t. tjmc, cited..._by
P . King, and part of the 'evidence' for Langbcin's attack on a supposed argument that was the opposite
391
behind the occupational designations of the poor, too, some distinctive
patterns ~merge. In particular, increasing evidence suggests that many
cases were brought by the lowest stratum of the po0r, by thief-takers, and
also by men and women engaged in collusive suits for the sake of the costs.
These were the poor familiar with the courts because they were frequently
prosecuted themselves. They were familiar with legal procedures, with the
corruption of officials, and the tactical advantages of courts.157 We are only
beginning to understand popular use of the courts, but it may be that most
of the poor in the eighteenth century, and much of the workin class in
t e nmeteent , a great reservations about using- the criminal law precisely
beCause those who did use the courts often did not shardJCommunal norms, I
(did not settle disputes within neighbourhood institutions, but exploited
the powers of the stateJ -·-There is also a logical difficulty with using social profiles of prosecutors.
They do not provide any estimate of the actual participation rate of different
social groups, nor their experience of the results. N o historian can say with
confidence what are the criteria by which we are to judge when the index
is moderate, high, or very high- because it is impossible to do so. If one
were to suggest that acceptance of law was high when every social group
prosecuted in proportion to its percentage in the population, it might be
objected that we have to guess as well at the risk each group faced with
respect to theft. And then we can assert whatever we want: that wealthy
manufacturers or retailers faced more risks than the labouring poor because
they had more property and pilfering servants, or that they ·faced less
because they had better locks and other protective devices (including
honest servants) than poor cottagers, et cetera, ad infinitum. 158 Our ad hoc
judgement of risk will then generate an ad hoc attribution of significance
to particular proportions of prosecutions.
More important than these proble.m s of estimating risk and evaluating
the origins of prosecution is the (often unexpressed) major premiss that
sometimes leads to broad conclusions about the popular perception of the
criminal law and its agents. It attributes to the poor (and every other
social group) an encompassing judgement about functions of law, and the
legitimacy of law, that was probably commonly found only among the
professional and lay ideologues of law, whether lawyers, magistrates, or
of the one I made. For another approach to the relative standing of prosecutors, jurors, and accused,
sec H ay, 'Class Composition of the Palladium of Liberty', pp. 350 1, and my forthcoming book.
is7 See Paley, ch. 7"above, and Davis, ch. 9 below, and also n. 147 above. Sec also N. Landau, The
Justices of the Peace 167g-1760 (London, 1984), zor-4, for lhe involvement of urban justices in the
disputes of 'the more quarrelsome, troublesome, and unpleasant inhabitants of their neighbourhoods',
including the poor.
158
Philips, Crime and Authority, p. 126, attempts such an assessment, with necessarily inconclusive
results. King, 'Decision-Makers', p. 32, considers onl y the fi rst of the two possibilities.
392
.,
Douglas Hay
simply the gentry and respectable middle class. 159 The propensity of such
groups to make general statements about law, and specifically to argue that
it is a seamless garment, a whole which should not be partially or selectively
obeyed-e.g. 'one must obey even unjust laws until they are changed
constitutionally'- is probably not widespread in our own society and in its
historical antecedents. 160 A fortiori, the notion that the poorer half of the
population, because they sometimes were able to prosecute, believed that
The Law was basically just seems most unlikely. Most people took a
profoundly instrumental attitude to the law.
.
English men and women were the more likely to do so when private
prosecution gave such scope for using the law, and not necessarily for the
ends sanctioned by judges and commentators. The evidence for malicious
and vexatious use of the law in the eighteenth and nineteenth centuries,
including prosecutions which were not expected to succeed but which could
harass and intimidate defendants before they were dropped (sometimes for
a calculated monetary composition), shows that the social significance of a
prosecution, and its chance of success, depended to a very large extent on
the relationship of accuser and accused, and their credibility in the eyes of
judge and jury. In the patterned advantages enjoyed by the powerful in
bringing prosecutions there is much evidence that whatever the majority
of the population concluded from their use of the criminal law, it did not
include the proposition that it was a class-neutral administrative device for
punishing some unambiguous group called 'criminals'. It was, rather, a
powerful instrument for threats and punishments, suited to achieving a
very wide range of social purposes. When it was invoked was determined
by a host of considerations, including the social position of the prosecutor
and the accused, and the legitimacy of the proceedings in the eyes of
neighbours as well as the courts. Here, the public history of the parties
and of the background to the prosecution were often more important than
the alleged act. Often, as we have seen, the prosecution could be for an act
that had not even been committed. And the law was available, for all these
purposes, much more to the wealthy than to the poor.
Inferences about popular attitudes to the law from prosecution rates
simply ignore such issues. The evidence we have for malicious prosecutions
is particularly important. If there is reason to believe that a significant
(although unquantifiable) proportion of ordinary property prosecutions
is9 See ff Hay, 'Crime and Justice in Eighteenth- and Nineteenth-Century England', in N. Morris
and M. Tonry (eds.), Crime and Justice: An A111111al Reviem ofResearch, ii (198 1), 72 ff. King, 'Decisionmakers', suggests that use of the courts by the labouring poor 'implies at the very least a basic
understanding of legal institutions and a pragmatic acceptance of their usefulness' (p. 34), but he too
argues that it is improper to infer further conclusions about the general legitimacy of the law (ibid.,
pp. 34- 5 and 51 ff.). See also n. 154 above.
160
On obedience to the law in our own societies, compare the fact that almost one-third of males
in England and Wales have a serious co11victio11 by age 28 (ch. 1, n. r above).
393
were false or exaggerated· charges shaped by class relations, our understanding of the social meaning of the criminal law, and contemporaries'
views of it, is much altered. Its social service . functions as a neutral
instrument for all citizens become even more problematic, its importance
as a locus of class-contested meanings, beliefs and claims, more pronounced
in our analysis. Malicious prosecutions will also have implications for the
broader ideological role of law in that society. If miscarriages of justice, in
the law's own terms, were at all common, the usefulness of the criminal
law as a means of justifying the social order may seem doubtful indeed. I
have argued elsewhere that the law was important in persuading common
English men and women that the ei hteenth-centur social order was 'ust
an or naturall constituted and or 'n ·
·
tant in thm
acquiescence in that social order, however tentative and contested, and
rufferentiated by social class and local context. 161 We should ask therefore
whether the frequency of illegitimate prosecutions (in the law's own terms,
or of those who used or suffered them) weakened or negated the legitimacy
that those administering the law sought to confer on the social order,
through the symbols and the processes of the courts.
It is unlikely that malicious prosecutions, even if they were common,
had this effect in the eighteenth century. The legitimating role of the law
was probably most ·fully realized at those moments, often carefully
managed, when the law clearly transcended the imperatives of social class:
in exemplary but popular prosecutions, hangings of the famous, pardons
of the pitiable. Of greatest importance was the fact that so many of these
occasions were seen to be the acts of those who represented the state and
those who dominated it. It was the assize judges who freed men because
of variance in the indictment; it.was the gentry and the aristocracy and the
161
Hay, 'Property, Authority, and the Criminal Law'. The logical status of 'legitimation' of such a
general kind has been called in ques tion, citing my work as one instance: A. Hyde, 'The Concept of
Legitimation in the Sociology of Law', Wisconsin Law Rcviuv (1983), pp. 379- 426, esp. pp. 404 6,
417-18, 420-1. The subject is too large to debate here, but four points should be made. First, H yde
argues (from modern evidence) that 'legitimation appeals' are rarely made by elites; this is manifestly
not the case in England in the period 1750-1850. Second, he fits a wide variety of work into one
Weberian bed, defining a legitimate order inconsistently as 'an order people believe is obligatory/binding', 'dominant political authority', 'a government in which people have confidence', an order
'legally constituted', one 'formally constituted by the state' (pp. 397, 396, n. 27). (My own meaning is
explained in the text.) Third, Hyde suggests that 'legitimation' is a residual term, a specious explanation
for behaviour that we cannot easily explain by 'habit' or 'self-interest'. But 'habit' (also termed 'custom'
and 'traditional' compliance, pp. 382, 385, 389) is Hyde's own residual category, and I question his
assumptions that custom is self-sustaining without legitimation, that it is possible to isolate custom
from legitimation appeals, and that custom is a self-evident term that exhausts the grounds of social
action that arc not comprised by self-interest. Fourth, social actors' rational calculations of self-interest
are not unaffected by legitimation appeals. f:lite assertions of the justice or rationality or naturalness
of the extant social order are often purposive efforts to construct a public model of the social 01·der
within which rational self-interest is subsequently defined. On the general issue, that legitimation
cannot be provm to have taken place, I of course concur. Historical explanation does not usually admit
of such proofs.
394
D ouglas Hay
king who orchestrated and effected the granting of pardons. On the other
hand, when justice miscarried through a determined and vindictive prosecution, and especially in a malicious prosecution, the defendant blamed
someone else: the private prosecutor, who had prepared the case, gathered
the witnesses, often decided on the charge, and, most important of all, had
made the decision to go to the courts. 162
Viewed from the other side, from the perspective of the prosecutor, it
seems likely that the fact that the criminal law could be used for such
immediately personal ends, on summary convictions. as well as at quarter
sessions and assizes, probably convinced more men and women in England
to feel that the law was t,heirs, than was the case in a contemporary
inquisitorial system of prosecutions. No state bureaucracy, as in France,
restricted private initiatives, monopolized prosecutions, made perjury by
complainants a dangerous offence, gave justice a distinctive class bias, and
then wholly identified the state with the outcome. 163 Instead, the mixture
of summary and indictable offences, common informers and private prosecutors, accustomed a wide range of Englishmen and women to think that
they could use the law for their own ends- which is often the lay definition
of justice--even though as a structure the criminal law was deeply classbiased in its definitions, its purposes, and its results. The poor as well as
the middling sort did not, as a naive sociology or uncritical jurisprudence
or uninquisitive history would have it, simply believe in and obey The
Law, or simply oppose and subvert it. In truth, when they could, they
used it, or at least what parts they knew and could afford. They undoubtedly
regarded their uses ~s legitimate in their own terms; there are few men or
women, of any class or time, who do not find such justifications for their
actions. Sometimes they were not even aware of the discrepancy between
their standards of justice and those of the law. And when they succeeded
in those purposes, parts of the law, its rhetoric, its instruments, acquired
a legitimacy they otherwise could not have had.
Such a legitimacy had , however, a very different flavour from that
envisaged by jurists and justices, or by some historians who infer a social
consensus about the legitimacy of the criminal law in all its manifestations.
It was probably transient, personal, and infrequent (given the level of
enforcement), and above all it was contingent on circumstance. It is
particularly unlikely that occasional successful prosecutions by the poor,
whether well-founded or malicious, created many adherents of the belief
that law and the justice of the social order were coterminous. The experience
162
Once prosecution fell into the hands of the police, malicious prosecutions, when they occurred,
probably did much more to weaken the legitimacy of the criminal law and the state by the late 19th
and the zoth c. than did the conspiracies of private individuals in preceding centuries: sec ch. 1.
16
J The occasional participation of the French complainant as parrie civife could not compare to the·
power of the English private prosecutor.
395
of using, and abusing, the criminal law cannot have convinced them that
the unequivocal line drawn by all criminal law, between the guilty and the
innocent, the damned and the deserving, had an objective reality.
Certainly Mrs Weldon, the prosecutor of Lord DuRgarvan in 1791, was
probably one of the doubters. 164 Although The Times virtually accused her
of being a whore in league with Justice Reid, a trading justice, in a plot to
extort money from Dungarvan, th~ full story (as it so often is) was probably
more complicated. Mrs Weldon was not a destitute street-walker, as some
of the press implied. She was apparently a fairly successful society prostitute, with a box at the theatre and two ladies' maids (in fact, her sisters).
She was unlikely to risk her professional reputation with a crude attempt
at extortion from a young gentleman, especially on a capital charge; it is
more plausible that she was enraged by her loss, and unwisely proceeded
to law in the belief that with justice on her side, she must win. 165 Dungarvan,
who testimony showed had been 'heated in wine', immediately got a lawyer
before going before the justice, was sent for trial by the grand jury, put his
case in the hands of counsel, summoned a host of socially prominent
witnesses to his character (including the Dukes of Devonshire and Portland)
but was acquitted only after six hours, an extraordinary length of time for
a trial in the eighteenth century.
The jury declared Mrs Weldon's prosecution malicious, and the judge
granted Lord Dungarvan a copy of the indictment. Apparently he did not
proceed with an action for malicious prosecution. Almost 200 years later,
we cannot adjudicate their differences. But R. v. Dungarvan, a case that
looked like an unfounded charge to contemporary readers of the quality
press, may well have been based on the facts, while many other
prosecutions, apparently meritorious efforts to enforce the criminal law,
undoubtedly were malicious in the legal sense, as we have seen. 166 Whether
Mrs Weldon's prosecution was a legitimate one, to contemporaries or to
us, is quite another question. The Times, the judge, the jury, and apparently
the mob (which pursued her, the papers reported, as she left the court)
were clear that it was not. The outcome of the trial, the ceremonious
acquittal, the judge's praise for Lord Dungarvan's character and honour
made the public conclusion a c;lear matter of historical record . A whore
had grossly but unsuccessfully abused a gentleman in the courts.
The opinion of Mrs Weldon and her friends is not recorded.
164
Above, n. 1. For more about the trial of this 'young Nobleman, of the most promising talents,
and universally esteemed', and the humiliation of Mrs Weldon, who was pursued by a mob after the
verdict, sec Lloyds Evening Post 14- 17, 17- 19 Jan. 1791; The Times 18, 28 Jan. 1791.
165
I am grateful to Dr Ruth Paley for information about Justice Reid.
166 Paley, ch. 7 above.

Prosecution and Power: Malicious Prosecution in the English Courts

Transcription

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