Of Treatises and Textbooks: The Literature of the Criminal Law in Nineteenth-Century Britain

Of Treatises and Textbooks: the Literature of the Criminal Law in Nineteenth-Century Britain



MUCH OF THE analysis of nineteenth-century criminal law has focused on the question of codification – for fairly obvious reasons – but from the perspective of the literature of the criminal law this might produce a rather distorted picture, with its focus on a particular kind of architecture of criminal law and on the clarification of the meaning of concepts of responsibility. This literature typically traces a trajectory that goes from Blackstone through Bentham’s critique of the Commentaries, to the 1833–45 Criminal Law Commissioners to Stephen’s codification project of the 1870s, in which the failures of successive codification projects are balanced against the gains of an increasing sophistication in the conceptual structure of the law.1 In this chapter I shall argue that this is of secondary importance to the development and practice of the criminal law in the nineteenth century, although it was to become of great importance in the twentieth century with the rise of criminal law as a university discipline and the rise of subjectivism (focusing on the mental element in crime), phenomena which drew heavily on the existing codification literature.2 Instead I shall argue that by focusing on the practical literature of the criminal law in England and Scotland – and in particular by tracing the rise of a treatise literature on criminal law over the course of the century – it is possible to begin to develop an alternative history of nineteenth-century criminal law, one in which the failures of codification must instead be seen as being eclipsed by the increasing successes of the formalisation of doctrine and the consolidation of the central role of the legal profession in the criminal justice system.3 This focus then offers a new perspective on the question of why codification failed in England in the nineteenth century, as I shall argue that the treatise addressed some of the problems that codification was intended to solve, thus rendering more formal codification to a certain extent unnecessary.4

This chapter is divided into three main sections, and while mainly focused on literature of criminal law, it will say something in passing about criminal procedure. In the first section I will review the forms of legal literature at the turn of the nineteenth century (a period roughly from 1780 to 1820). This was a period during which there was an extraordinary level of public interest in the criminal law as the reform movement gathered momentum. Some of the literature of this period is well known to historians of the criminal law, but I shall also note some of the lesser and more obscure forms in order to draw attention to the sheer variety of ways of writing about and ordering the law sometimes neglected by legal scholarship.5 In the second section, I shall examine the history and structure of the most enduring of the nineteenth-century treatises in England and then Scotland, which were first published in the early nineteenth century. In the final section, I will say something briefly about the emergence of the university textbook, which has come to rival the treatise as the dominant form of legal literature. While both treatise and textbook systematised the law in some way, and indeed might share a similar structure, they were intended for different audiences. The textbook was aimed at students as law was increasingly taught as a university course, while treatises, I shall argue, were primarily written by and for practitioners. This is not intended as a hard-and-fast distinction, but I want to avoid some of the definitional problems in this area – what is a treatise? – by looking at the audience and function of the different forms of literature on criminal law. I will go on to argue that the treatise emerges as the dominant form of legal writing, defining and organising the field of criminal law over the course of the nineteenth-century. However, contrary to claims made by Simpson about treatises in other areas of law, criminal law treatises were overwhelmingly practical in focus, aimed at practitioners and largely unconcerned with the matters of principle and structure that are often taken to be the defining features of treatise literature.6


Writings on the criminal law in early-nineteenth-century Britain took a wide variety of forms, and were intended for a range of different audiences, and I want to place the emergence of the modern treatise in this particular context. In England, in particular, there was a large number of different types of criminal law texts, written for different purposes, and organised according to a range of classificatory schemes. There were a number of handbooks and dictionaries aimed at magistrates and others involved in law enforcement; ‘institutional’ texts such as Blackstone’s Commentaries which were aimed at the student of law and the educated gentleman; and there was a profusion of texts aimed at law reformers and a wider popular audience. I shall look at three main categories of text – those concerned with elucidating principle, those aiming at reform, and practical handbooks – as a means of illustrating this diversity.7

A. Principles

The most important books in this category, the ‘high’ literature of the criminal law, were the so-called ‘institutional’ writers on criminal law – Hale, Hawkins and Foster – whose writings were focused on the Pleas of the Crown. The major text was Sir Matthew Hale’s History of the Pleas of the Crown (1736). This was published posthumously in two volumes (Hale died in 1676), the first of which concerned the substantive law and the second criminal procedure.8 It was not a complete digest of the law, but dealt only with the most serious criminal offences – varieties of treason, homicide and theft. It largely followed the pattern of Coke’s Institutes, but was much more systematic, treating issues relating to criminal capacity in a separate chapter and following a clear hierarchy of offences.9 In the words of Andrew Amos, the importance of the work was that it established a ‘standard of orthodoxy’,10 going through four editions in the eighteenth century with later editors adding discussion of recent case law and statutes.11 A work of similar standing and importance was Hawkins’ Treatise of Pleas of the Crown (1716–21), which went through seven editions in the eighteenth century, with the last edition being published in 1824.12 Like Hale, the work was divided into two parts, dealing with substantive law and criminal procedure. This largely followed the schema laid down by Hale, though with more extensive treatment of offences against religion, together with more detailed discussion of the substantive law.13 According to the Preface, the aim was to ‘vindicate the Justice and Reasonableness of the Laws concerning Criminal Matters’ against their critics by reducing and presenting them under a single scheme.14

The most direct successor to these works was East’s A Treatise of Pleas of the Crown published in 1803 in two volumes.15 Edward Hyde East was an MP and had also edited reports of cases from the King’s Bench before publishing the first edition of his treatise in 1803. He was later made Chief Justice of Bengal (1813–25), before returning to England and a career as an MP, which ended with the reform of Parliament in 1832.16 The text itself was an ‘up to date, fairly comprehensive, and accessible statement of the substantive law.’17 The subject matter, pleas of the crown, followed in the footsteps of Hale and Hawkins. East claimed some innovation in arrangement: ‘In drawing the outline of this treatise I have endeavoured as much as possible to class together kindred offences’, leading to departure from the arrangement of Hale and Hawkins.18 Notwithstanding this, the plan was fairly conventional. The first volume dealt with offences against religion, morality and the church; treason; offences against coin and bullion; homicide; assaults and maiming; rape and marriage; and sodomy. The second volume was largely concerned with offences against property (burglary, larceny, piracy, forgery, arson and malicious mischief). It was thus broader in coverage than its predecessors, and in drawing extensively on unpublished judicial notes it provided the practitioner with access to recent case law.19

It is also important to note the classification provided by William Blackstone in his Commentaries (1765–69).20 Although he was not a criminal lawyer, his account, based on a conceptualisation of criminal law as public wrong, had an impact on writings in this area.21 Blackstone began with a discussion of the requirements of criminal liability in relation to exculpatory conditions, and then restructured exposition of the substantive law in terms of a hierarchical ordering of interests infringed (offences against religion, the state, justice, public order, person and property). This was both influential and innovative, though it is also widely acknowledged that it was not aimed at practising lawyers. The 1824 edition of Hawkins was recast by its editor according to a Blackstonian schema, and Baron Hume also followed this in his Commentaries on Scots criminal law.22 More broadly, the importance of Blackstone was less in terms of its practical utility to lawyers than the attempt to establish that the law had an underlying conceptual coherence. This was of significance in a context of mounting criticism of criminal law and punishment at the end of the eighteenth century. While Bentham’s critique of Blackstone is best known, a number of other works inspired by philosophical writings on law and punishment criticised penal law and practice through an examination of the principles underlying the law.23 William Eden and Henry Dagge both published works which took a largely Beccarian account of punishment, based on natural right and public utility, and applied it to the analysis and critique of English criminal law and practice.24 From a different perspective, inspired by the historical analysis of Lord Kames, Bicheno sought to link his analysis of English criminal law to laws of social and moral conduct and their development through particular sets of institutions.25 The significance of these works for our purposes lies in the diversity of approaches to the question of principle and in the debate that was opened up over the scope of principles of criminal law and the nature of their connection to social and political institutions for an audience which went beyond the legal profession.

B. Reformers

This was also a programmatic literature, but in a different way from the discussions of principle. In these texts, structure was generally less important than the aim, which was to expose the defects of the law – particularly the statute law.26 A good example of this type of book is Tomlins’ Digest of the Criminal Statute Law of England (1819).27 Tomlins claimed that ‘No work . . . has ever yet appeared containing the whole Criminal Statute Law of England; and as the various Acts relating thereto are dispersed (necessarily without any uniformity) through the numerous volumes of printed Statutes, the Search for particular Acts frequently becomes arduous even to Professors of the Law.’28 The design of the book was thus to bring together all of the criminal statutes of England so as to show the present state of the law. The first volume contained statutes from those on admiralty and ambassadors up to Larceny; the second volume from malicious injuries and manufactories to Wales. Each title would then list the principal statutes on a topic and digest or paraphrase the provisions of the relevant statutes, with little further authorial comment.29 What made this more than a practical handbook, however, was that Tomlins went on to argue that, by bringing them together, it could then be shown that different statutes had been passed on the same subject, creating similar offences but with widely differing punishments or other inconsistencies. He went on to say ‘In not a few cases, also, latter Statutes re-enact, verbatim, the Provisions of former Acts, without noticing the existence of the first Statute.’30 The purpose then, it becomes clear, is to demonstrate the severity and disorder of the criminal statutes, and to present an argument for reform through digesting the law into a single code.

A similar plan was followed in Evans’ Collection of the Statutes (1817), though this was not confined to criminal or penal statutes.31 This covered the whole of the law as might be connected to professional or magisterial practice – with the final four volumes of eight relating to crimes and justices of the peace. The aim was in part to include and digest statutes that were not readily available elsewhere, but more broadly to suggest alterations to the law or to illustrate the principles which might be applied to reform – ‘to counteract the tendency of an excessive dread of innovation’.32 The part on criminal law dealt with crimes under the familiar broad heads – treason, coin, homicide, etc – but then dealt with statutes chronologically within each section. A model for these types of works was Barrington’s influential Observations on the Statutes (1766).33 This book had aimed to identify examples of poor and oppressive law-making with a view to arguing for the repeal of certain statutes, within the broad political context of the recognition of the constitutional freedom of the subject. It was thus not an argument for codification, but an argument for reform that recognised the strengths of the existing system of administration of justice.34 That said, it is not clear who works such as this or Tomlins were aimed at: too specialised to be aimed at a popular audience, their programmatic character and reforming impulse clearly differentiates them from more practical handbooks and manuals.

This appetite for reform of the penal statutes also inspired a number of initiatives advocating a more wholesale codification of the criminal law, either in the form of draft codes or in a growing literature discussing the most appropriate method of criminal law reform.35 There were also, finally, more overtly polemical and political attacks on the Bloody Code and the administration of justice, which might address the substance or structure of the law to a greater or lesser degree. Notable here are works such as Samuel Romilly’s Observations on the Criminal Law of England (1810).36 This book, based on his celebrated speech to the House of Commons in February 1810, was a wide-ranging attack on the use of capital punishment, and in particular on the ideas of Paley. This argued for a more general system of criminal jurisprudence based on certainty and proportionality in laws and punishment.37 The rapid republication of parliamentary speeches and review articles in book form suggests that there was a popular appetite for such works.

C. Handbooks and Other Texts

A final class of texts to note are those handbooks prepared for magistrates who were actually involved in the administration of the criminal law. These texts generally aimed to be as comprehensive as possible, to cover all aspects of law which a magistrate might expect to encounter. The principal text in this area was Burns’ Justice of the Peace, first published in 1755, which went through 30 editions by 1869 and which covered the full range of law relating to civil and criminal matters to which a magistrate might have to refer.38 A number of these texts covered only criminal law. Addington’s Abridgement of Penal Statutes (1775), for example, was presented as a guide for the magistrate because of the difficulties in discharging his duties because the laws were dispersed through so many statutes.39 This was an index of statutes, presented in tabular form. In spite of the author’s claim to be imposing some sort of order on the mass of criminal legislation, this is not apparent to the reader. Some 1532 separate offences were listed over 558 pages, classified by definition, penalty, mode of recovering penalty, and the number of witnesses and justices necessary to convict.40 In a similar vein was Clark’s Penal Statutes Abridged (1777).41 This was aimed at both the magistrate and the individual, for knowledge of the laws is necessary to ‘the maintenance of a proper subordination’, the preservation of order, security of rights and the manifestation of justice.42 Like Burn’s Justice of the Peace, it was organised alphabetically by subject, with cross-referencing and referring also to common-law writers where necessary. A different approach was taken in Nares’ Summary of the Law on Penal Convictions (1814) which was essentially a book of instructions to magistrates on summary convictions, ordered broadly chronologically from arrest to conviction.43 What the texts had in common though was that all were intended to be the sole or principal source of reference for a Justice of Peace, who might not have access to any other law books or reports, allowing them to find a simple and up-to-date account of the law on any matter within their jurisdiction, and direct them on the exercise of their powers.


The variety of texts suggests wide public interest in the matters relating to crime and penal law. However, while much of this literature speaks to a general concern that the law was complex and in need of some kind of organisation, it is not clear that there was yet either any settled understanding of criminal law as a distinct body of rules or of the best or most practical scheme for ordering the law.44 For some writers the law was conceived of in traditional terms as Pleas of the Crown, though this was stretched some distance from its original meaning (as actions at common law in which the Crown formally appeared as the prosecutor), to include all serious crimes.45 Otherwise the terms penal law and criminal law were used interchangeably. In addition, a large part of what we might call the ‘practical’ literature was aimed at the practising magistrate and dealt largely with misdemeanours, recognised as penal, but not formally as part of the law of crimes. Above all, though, we might ask about the audience for the different forms of literature. Until the late eighteenth century there was only a very small criminal bar as defence counsel were not formally permitted until 1836.46 Legal education was conducted on an ad hoc basis through the Inns of Court with the result that no systematic or ‘scientific’ literature was being developed.47 This, then, can be understood as a practical literature for a system in which the local lay courts were dominant, and in which the defence lawyer was, for the most part, absent from the criminal trial. As this began to change over the course of the eighteenth and early nineteenth centuries, there was a need for a new kind of literature of criminal law, one which addressed the problems of the disorganisation of the sources of law in a form that made it readily accessible to the emerging national criminal bar.


The first modern treatises on criminal law, criminal procedure and evidence were published early in the nineteenth century, aimed primarily at an audience of lawyers. They were written by practising lawyers, often early in their legal careers.48 They are thus not necessarily the fruit of long study or experience in the law, but were often written to pass the time usefully or earn money at a time when the young lawyer did not have many clients. These works have normally been either disregarded by historians, or seen as slightly disappointing, because they were not as innovative as the codification projects advanced during this same period. However, my argument here is that the treatises under discussion not only provide a dominant framework for understanding the criminal law, but that in the absence of detailed case reports and other sources, they are the law for the developing legal profession. I should also note that I am not suggesting that these wholly replace the other literature – there is extensive publication of books on criminal law throughout this period, but a full survey of this literature must be beyond the scope of this paper.

A. England

Russell’s Treatise on Crimes and Misdemeanors was first published in two volumes in 1819.49 Russell himself was a practising barrister. He was called to the Bar in 1809 and became a Serjeant-at-Law in 1827. Russell (like East) was in 1832 appointed to the post of Chief Justice of Bengal, but died in 1833 shortly after taking up the post.50 The book went through 12 editions in total, six of which were published in the nineteenth century, the final edition being published in 1964. The first two editions were prepared by the author in his lifetime, and most of the later editions were edited by practitioners, though the final three editions were edited by JWC Turner, an academic.51 Russell’s other publications were limited to two series of case reports: one on the practice of the Carmarthen Circuit (1816), and more substantially (with Edward Ryan) a report of Crown Cases Reserved between 1799 and 1824 (1825).52 The latter was dedicated to Sir Robert Peel, and Peel returned the favour when presenting his criminal law reform programme to Parliament, praising Russell for having rendered an important service to the law through his clarity and proposals for reform.53 The Preface to the second edition (1828) then comments favourably on Peel’s reforms, and the book also contains the full text of Peel’s Acts reforming capital punishment.

While, as Smith notes, Russell’s Treatise breaks ranks with earlier treatments in respect of the hierarchy of offences, through the exclusion of treason and religious offences, it is not clear that it warrants the claim that it is ‘innovatory both structurally and substantively.’54 The Treatise itself was divided into five books. Book I dealt with persons capable of committing crimes and principals and accessories (70 pp); Book II with offences against government, public peace and public right (550 pp); Book III with offences against the persons of individuals (290 pp); Book IV with offences against public or private property (850 pp); and Book V dealt with offences which could affect the persons of individuals or property (principally, subornation of perjury and conspiracy) (100 pp). The short treatment of criminal capacity, while dealt with at the start of the book, is then dwarfed by the lengthy sections on offences against government and property, cataloguing the vast compendia of early-nineteenth-century common law and legislation. However, what is striking about the arrangement is that while the order of treatment is broadly similar to earlier works, Russell adopts the method of grouping offences together under the broader heads of government, person and property. This allows for the combination of both system and detail, as the particular offences can then be treated under the broad heads, reflecting the practical orientation of the book. Its other main strength is in clarity of exposition.

The work covered all indictable offences with the exception of treason, which was excluded on the grounds of space and because prosecutions were so infrequent as to leave time to consult the other authorities. He did not attempt to cover minor (summary) offences, except where these might explain or were connected to offences of a higher degree. He claimed in the Preface originally to have intended to include a chapter on evidence, but had excluded this on grounds of space.55 The subject of procedure was excluded on the grounds that it had recently been dealt with in the work published by Chitty.56 However, the detailed discussion of each crime included extensive observations on procedure in relation to that crime. In terms of sources, Russell acknowledges his debt to the earlier institutional works of Hale, Hawkins, Foster and Blackstone, and East’s more recent Treatise