If the Crown Controls Prosecution ...

Quite a long time ago, I published an article on the legal system of 18th century England. On paper, it was our legal system–indeed, where our system came from. But there were no police, no public prosecutors, and criminal prosecution was almost entirely entirely private, usually by the victim or someone acting for him.

The system raised a lot of questions, many of which are discussed in the relevant chapter of the book I am now writing, a draft of which is webbed for comments. One of them is why the English did not have the standard modern system, where catching and convicting criminals is the job of the state. They knew about it. France had such a system, and arguments for it were made in England.

One explanation I have sometimes offered is that, after the chaos of the 17th century–two civil wars, a military dictatorship, and two coups–it occurred to people that if the Crown controlled prosecution, the King's friends could get away with murder. When I give a talk on "Should We Abolish the Criminal Law" (my favorite title), that is one of the arguments I offer, with references to a number of modern cases, starting with the Black Panther shooting in 1969, where government actors committed serious crimes for which they were never prosecuted. My most recent example is James Clapper, Director of National Intelligence, being asked ""Does the NSA collect any type of data at all on millions or hundreds of millions of Americans?" and responding, in sworn testimony, "No, sir."

Recently, reading about the activities of John Wilkes, an 18th century radical libertarian journalist and politician (after whom John Wilkes Booth was named), I discovered some 18th century support for my interpretation. The following is from a draft chapter:

Since any Englishman could prosecute a criminal case, the fact that an offense was approved of by the authorities was no guarantee that it would not be prosecuted. The point was demonstrated when a demonstration in favor of imprisoned radical John Wilkes ended with troops firing into the crowd and killing several people. The Wilkites responded by charging several of the soldiers, the magistrate who had ordered the troops to fire and the other magistrates present with murder.

The king had the power to pardon a convicted felon but doing so in too obviously partisan a way might provoke public outrage. In one notorious case two convicted murderers were pardoned, apparently because their sister’s aristocratic lovers applied political pressure on their behalf (“the mercy of a chaste and pious prince extended cheerfully to a wilful murderer, because that murderer is the brother of a common prostitute”). The Wilkites responded by raising money to fund an appeal of murder, a private criminal case. An appeal was a complex, expensive and difficult proceeding that had gone almost entirely out of use. It had, however, one large advantage:

“If the appellee be found guilty, he shall suffer the same judgement as if he had been convicted by indictment: but with this remarkable difference; that on indictment, which is at the suit of the King, the King may pardon and remit the execution; on an appeal, which is the suit of a private subject, to make an atonement for a private wrong, the King can no more pardon it, than he can remit the damages recovered in an action of battery.” (Blackstone)

The appeal failed, as did the earlier criminal prosecutions, but like them demonstrated the possibility of using privately prosecuted criminal law against malefactors supported by the government

Wilkes is an interesting character. At various points in his life he was an outlaw, a prisoner, a member of parliament and Lord Mayor of London. He is arguably responsible for the Fourth Amendment to the U.S. Constitution. The city of Wilkes-Barre is named after him (and Barre). His biography is worth reading. And he is the source, or at least had attributed to him, some very good quotes:

When told by a constituent that he would rather vote for the devil, Wilkes responded: "Naturally." He then added: "And if your friend decides against standing, can I count on your vote?"

At one point in his extended feud with George III, Wilkes was asked to make up a table of cards. He declined, explaining that he was so ignorant of cards that he could not tell a king from a knave.

In a famous exchange with John Montagu, 4th Earl of Sandwich, where the latter exclaimed, "Sir, I do not know whether you will die on the gallows or of the pox," Wilkes is reported to have replied, "That depends, my lord, on whether I embrace your lordship's principles or your mistress." (But that one may really be by Samuel Foote)