DISTRIBUCIÓN Y PUNTOS DE VENTA

The state of English law reporting in the early seventeenth century makes discerning the standard of proof a challenge. The law reporting system did not thoroughly document criminal cases. Lawsuits were widely reported, by lawyers for lawyers, but felony trials were largely ignored in the descriptive reports. Lawyers would have had little interest in recording felony cases since defense counsel were always prohibited and prosecutors absent in routine felonies, in contrast to lawsuits between parties which always required lawyers.2Several sources do exist, though none offers anything near the verbatim recording of proceedings that would provide sure grounds for establishing what the standard of proof was.

Records of trials before the central royal courts and the assizes (circuit courts) in early modern England were collected in various nominative reports, named for the lawyer or judge who compiled them; many of these reports were later bundled and made available as the English Reports. Still later, the English Reports and older reports known as the Year Books were gathered, with cross-references, into The English Digest, and theDigest was later expanded to include cases adjudicated throughout the British Empire (The English and Empire Digest). These reports were meticulously kept, but they mostly report on civil cases; the few criminal case reports merely state the rule or principle for which the case stands, not enough information from which to deduce ordinary procedure.3The Digest’s silence about

2_{John Langbein, Prosecuting Crime in the Renaissance (Cambridge: Harvard UP, 1974) 77-78.} 3_{The English and Empire Digest, annotated, “Criminal Law and Procedure,” vol. 14 and 15 (London:}

Butterworth, 1924). Under the heading “Burden of Proof,” the oldest entry is dated 1801 and simply states, “Negative Averments: In general the rule is considered to be, that a party is not required to prove a negative, but it lies on the other side to prove the affirmative of that which he insists on (Le Blanc, J.). R. v. Stone (1801), 1 East, 639; 102 E.R. 247” (Digest,v. 14 p. 430). Under the related heading “Sufficiency of Proof” the oldest entry comes from 1608 and merely notes, “Of corpus

procedure in general and the standard of proof in particular suggests that judges and

defendants, and the lawyers who compiled the reports, were unconcerned with the standard of proof circa 1610.4Apparently, either no standard of proof existed—unlikely, given the practical need for one—or it was so taken for granted that no reporter thought to mention it. The government rolls and calendars which exist for criminal cases are even less informative: they merely identify the defendant, witnesses, judges, and jurors; record the charge and a very brief description of the defendant’s alleged acts; and describe the disposition of the case (e.g., “guilty, hanged”).

More expansive and useful accounts appear in the State Trials which offer narratives of sensational trials, mostly for political crimes such as treason. Procedurally, the State Trials are too unusual to represent cases of ordinary felony: each state trial featured judges and a jury handpicked by the Crown for that particular case; was prosecuted by the Crown’s powerful Solicitor General and Attorney General (as opposed to no prosecutor in mundane cases); and proceeded in the spotlight, with monarch and powerful elite paying close attention. Also, the reports are reconstructions from memory, a problem in itself,5made

delicti:—confession of accused—R v. Perry (1608), 14 State Tr. 1312” (Digest, v. 14 p. 432). The only other entry from the early seventeenth century concerning proof states: “Confession of accused: to prove identity—where a felon is condemned, and escapeth and is retaken, upon confession that he is the same party execution may be awarded. Middleton’s Case (1617), Poph. 131; 79 E.R. 1233” (Digest, v. 14. p. 438).

4_{Similarly, the juror oath does not mention a standard of proof:“You shall well and truly try and true}

deliverance make between our sovereign lord the king and the prisoners at the bar whom you shall have in charge, and a true verdict give according to your evidence. So help you God.” J.H. Baker, “Criminal Courts and Procedure at Common Law 1550-1800,” Crime in England 1550-1800,Ed. J.S. Cockburn (Princeton: Princeton UP, 1977) 36.

5_{The report of More’s trial was drawn principally from a manuscript composed by his son-in-law}

more than 20 years after the events (Langbein, Prosecuting Crime 78). The pamphlet account of Ralegh’s trial (“Rawleigh”) claims to be “copied” by Thomas Overbury; Overbury did, reportedly, take copious notes at the trial. Robert. Lacey, Sir Walter Ralegh (New York: Atheneum, 1979) 333.

worse when the writer was not present at the trial. And, as popular reports of crimes against the state, the State Trials convey a strong political bias in favor of the Crown, almost never in favor of the defendant (the report of Thomas More’s trial seems to be the exception to the rule). By contrast, ordinary criminal cases usually were tried several at a time, unnoticed by the Crown and unreported; though notorious cases would have received widespread local attention, they still would not have risen to the level of the emotionally-charged political spectacles that the State Trials tended to be.6Nonetheless, this problem of representativeness does not render the State Trials useless here. Like the State Trials, the trials depicted in the plays are not run-of-the-mill cases but sensational ones. Further, it is unlikely that a different standard of proof applied in sensational cases; indeed, the evolution of the standard of proof from satisfaction to satisfied conscience to beyond reasonable doubt suggests no division between notorious and mundane felony trials. Moreover, all of the theatrical trials I examine are set abroad, in jurisdictions whose cultural habits and adjudication systems differed considerably from England’s. The arguments I will make about how the plays represent and do not represent English legal procedures and English attitudes do not and cannot suggest direct correspondences between practice and stage, but rather suggest a very English concern with proof and procedure, and an English predilection for verbal proofs, that gets refracted through the foreign settings.

Sensationalist pamphlets written by nonlawyers, usually anonymously, for sale to the general public also narrate the testimony and verdicts in extraordinary cases, but because they aim to entertain the general public, they are usually written as cautionary tales, heavy on the moralizing, lauding godliness and vilifying people who do not profess faith in God or 6_{Langbein, Criminal Trial 266. As late as the 1730s, a single Old Bailey session lasted two to five}

lead conventional lives. Hence the pamphlets are somewhat fictionalized approximations of what happened at trial.7Lay readers were also the target audience for the collected reports known as the Old Bailey Session Papers, which describe trials arising from crimes in London and the contiguous county of Middlesex beginning in 1674. I have relied on pamphlets with the recognition that, as discourses of popular entertainment, they provide only an

approximation of what happened at trial, but their treatment of trials and their status as a genre in and of themselves speak to widespread attitudes, perceptions, and issues.8

For the reasons below, I believe that the standard of proof of satisfied conscience in capital cases was generally understood and thus received no amplification from the courts. While other aspects of the process seem to have been somewhat flexible, as evinced by discrepancies between indictments and convictions, the standard of proof most likely developed and spread by custom and the fact that Crown judges heard criminal cases across the land when they rode on the assize circuit.