So for the past couple days I have been scurrying around reading legal journals trying to figure out exactly what would have happened at the scene of a crime in 1838 England. Maybe there was an easier way, but for my own benefit and to save future googlers a little bit of time and effort, I'm going to summarize my findings here. The public prosecutor's office was first established in 1879. Before that time, if the victim of a crime (it could be anyone, but was generally the victim) wanted to see the perpetrator punished, they had to lodge a complaint and bear all the costs of the trial. Some major public institutions, like the Mint, the Bank of England, the Treasury and Post Office retained prosecutors to investigate offenses that affected interests of the state. For the most part, however, it was up to the injured party to seek restitution.
There's another major exception to the rule of private prosecution, which depends on the distinction between misdemeanors and felonies. Misdemeanors were subject to summary judgment. That means no trial, no jury, just a quick jaunt to the nearest Justice of the Peace who'd hear the complaint and pass judgment.
Now, it was very difficult to take someone to trial without a victim - without a complainant. But a constable could apprehend a thief and take him to the JP for summary judgment and that worked just fine. So for misdemeanors, a private individual didn't always choose to prosecute. Increasingly over the course of the nineteenth century, law enforcement officials saw to the task.
Felonies were a different matter. By their very nature they were indictable offenses, and tried before a jury. Which means that unless a magistrate or constable were present at the scene of a crime, the victim could choose not to prosecute. It was against the law to agree not to prosecute (i.e., the victim of a crime seeks out the criminal, confronts him, and reaches a private arrangement for restitution), but very common nonetheless.
Alright. So. We're at the scene of a crime now. What does the JP do?
If a respectable prosecutor (victim or interested party) swears an oath that they witnessed a crime, the JP is obligated to arrest the accused. Other than that, however, the JP could do pretty much what he liked. He could have someone arrested, based on a standard of reasonable suspicion. He could dismiss an accusation if, upon further investigation, he decided it had no merit. He could have a suspect arrested or he could release him on bail.
This discretionary aspect evolved over time. Starting in the 16th century a JP was required to take written depositions from the complainants, witnesses, and suspects, and then to bind the suspects over for trial. This process only gradually transitioned into an inquiry, at which the JP weighed the evidence and then decided whether or not it was worthwhile to send the accused to trial. These changes were formalized in the Jervis's Acts in 1848.
The accused could, and increasingly did, choose to have an attorney present when the JP questioned him. The attorney could advise his client during the interrogation, but under no circumstances was the accused ever to obtain a copy of the written transcript.
The next step after the arrest was the actual indictment. The prosecutor presented his case before a jury and if the jury came back with a "true bill" then the case would proceed to a full trial.
I'm no expert - I read a few articles and browsed a few books and this is what I came up with. I'm listing the most useful sources I found below, for anyone who wants to double check or go read what the real authorities have to say. If anyone reading this has corrections, additions, or improvements please leave a note in the comments section or email me.
- Beattie, J.M.: Crime and the Courts in England, 1660-1800.
- Smith, Bruce P. "English Criminal Justice Administration, 1650-1850: A Historiographic Essay," Law and History Review Fall 2007.
- Smith, Bruce P. "The Presumption of Guilt and the English Law of Theft, 1750-1850," Law and History Review, Spring 2005.
- Smith, Bruce P. "The Emergence of Public Prosecution in London, 1790-1850," Yale Journal of Law and the Humanities, Winter 2006