The three articles offered in this forum on the early history of criminal appeals do us the great service of adding much of interest on this important but neglected issue in the development of Anglo–North American criminal procedure. The opaqueness of the legal history of criminal appeals stands in stark contrast to their centrality and apparent naturalness in contemporary criminal justice systems in England, Canada, and the United States. These three papers look at the period leading up to and immediately following the creation of the first formalized system of what we might call criminal appeals, the establishment of the Court of Crown Cases Reserved (CCCR) in 1848. This key period in the development of the adversary criminal trial was marked by both a concerted political effort to codify and rationalize the criminal law and by profound structural changes in the management of criminal justice.Footnote ¹

One of the virtues shared by these articles is the manner in which each places changes in the capacity to review criminal verdicts within the context of broader structural shifts and institutional tensions at play in this period. Professor Oldham's paper, which focuses on the period leading up to the creation of the CCCR, reveals a more robust criminal lawmaking role for the twelve judges than is normally imagined. In a study that focuses specifically on the manner in which the twelve judges handled forgery cases, Professor McGowen provides further evidence of the crucial role of increased lawyer involvement in the elaboration of the modern institutions of criminal justice. In his stimulating piece, Dr. Phil Handler makes a case for reinterpreting the judges' resistance to the expansion of appellate remedies as an expression of fidelity to the centrality of the trial court in criminal cases, rather than as a self-interested and conservative stubbornness. By embedding their analysis of the work of the twelve judges (Oldham and McGowen) or the CCCR (Handler) in the institutional shifts of the time, the three articles are faithful to the complexity of this period in the development of the criminal process. I will return to one way in which the working out of a particular institutional relationship might well have been at play in all three stories presented in this forum; however before turning to that point, I shall focus upon aspects of the claims made in each article, and, in particular, ways in which the three interact with one another.

There is something of a provocative tension between McGowen and Handler's contributions. A central claim in Handler's article is that one can account for the judges' notorious resistance to expanded appellate recourse in this period by reference to a coherent theory of criminal justice. Rather than writing off this resistance as a self-serving or reactionary instinct among the judges, Handler insists that the judges' attitudes were shaped by a desire to confirm the priority of trial judgments in criminal cases (a point that would no doubt tug on the heartstrings of contemporary trial judges). By contrast, McGowen's article on the treatment of forgery cases leaves one with an impression of judges quite satisfied as active participants in the appellate control of criminal justice. McGowen resists Radzinowicz's explanation of the involvement of the twelve judges as an expression of distaste for the bloodiness of criminal law, culling from the case law evidence that, rather, the judges were happy to use an appellate jurisdiction to ensure the efficacy of the criminal law's ability to respond to a crime perceived to be particularly nasty. Despite this apparent tension, both authors are interestingly engaged with questions of judicial self-interest and motivation in the judges' response to and handling of appellate-like jurisdiction.

Handler is overtly interested in this question of judicial motivations, suggesting that the judges' resistance to expanded appellate review was not based on reasons of cost, judicial burden, or simple conservative stubbornness but, rather, that “[a]t the heart of their approach was the desire to retain the primacy of the jury trial as the site for administering criminal law.” Yet it bears noting that the thesis that the judges were acting out of self-interest, and the proposition that they were seeking to affirm the centrality of the trial and, with it, the jury, are not necessarily or obviously in tension. In this bloody period in the history of criminal law during which convictions would frequently lead to execution, the jury may well have served a role in absorbing the moral responsibility for the infliction of the death penalty. James Whitman has argued cogently for the influence of blood guilt and moral anxiety on the development of aspects of the criminal justice system.Footnote ² In his view, judges had a strong interest in ensuring that decisions about death remained the province of juries, not judges. One wonders whether Handler's assertion of the judges' “clear and consistent vision of the proper role for a court of review within the criminal justice system” can be so readily divorced from accounts that trace their consistent reticence to embrace appellate review to self-interested stubbornness. This speculation, which would call for further research and analysis, is nevertheless encouraged by a question strongly raised but never wholly answered in Handler's article. Handler rightly points to the chasm between judicial attitudes toward appellate review in civil settings and the judges' attitude toward criminal appeal reform. But why such tolerance for this enormous and counterintuitive gap, one consistently pointed to by contemporary commentators who bemoaned the apparent injustice? Handler identifies an attitude among the judges in which “the trial was the best place in which to raise and to resolve questions of criminal law” but this brings us back to the question, “why”? Apart from a sense that judges viewed a clear and efficient process as key to the suppression of crime – a concern that would seem as likely to motivate the public as it would the judges – we are left wondering. Might the allocation of moral responsibility for the death penalty have been as much on judges' minds as was the efficient allocation of resources? Answering this question is not Handler's burden in this piece; however, his work draws this question of the judges' deeper interests into focus.

The issue of judicial interests and motivations in the early history of the development of criminal appeals appears somewhat differently in McGowen's illuminating examination of forgery cases. One of the chief contributions of this article is the evidence and strength it adds to the argument that the rise of lawyers in criminal procedure in the late eighteenth and early nineteenth centuries was a governing factor in the development of the modern criminal trial. McGowen compellingly draws out the influence that lawyers had on the elaboration of the law in forgery cases and, in particular, in moving such questions to the desks of the twelve judges. He argues that the “decisive factor behind the growing volume of forgery cases reserved for the twelve judges was the presence of legal counsel for the accused.” The ubiquity of defense lawyers in forgery cases came early because of the profile of the average forgery defendant: of a higher socioeconomic class than your usual felon, and, therefore, with the means to employ counsel. However, at a number of points in his argument McGowen gestures to “extralegal” factors that may have influenced the judges' receptivity to reviewing forgery cases as compared with other criminal matters. He notes that prosecutors and judges alike frequently invoked a formulaic reference to forgery as threatening “a commercial society in a particularly frightening way” and were very conscious of the threat that forgery posed “to the nation's financial integrity.” Although the fact of the accused having a higher social status might have evoked some concern about harshness among the judges, the suggestion is that they also saw themselves directly threatened by this crime in a way not true of most others: “they were aware of the alarm that the crime aroused. They shared it.” This explanation for the special place of forgery in the development of criminal appeals is convincing. Douglas Hay singles out forgery's special status in the criminal justice system of the time, a status that he argues explained why, despite the fact that the eighteenth century saw a decrease in lives actually taken by execution, the use of capital punishment remained common in cases of forgery. “In one area alone were [the gentry] exposed to the danger of great financial loss from theft. Their largest possession was land. The only way it could be taken from them illegally was by forgery – and it is significant that forgery was punished with unmitigated severity throughout the century, by death.”Footnote ³ Hay evocatively cites John Holliday in his 1797 volume, The Life of Lord Mansfield, in which Holliday explained, “Forgery is a stab to commerce, and only to be tolerated in a commercial nation when the foul crime of murder is pardoned.”Footnote ⁴

As convincing as McGowen is in his discussion of forgery, the unique status of the crime raises questions as to what general lessons can be drawn from this special category of case. To what degree can McGowen's account of the interests at play in cases of forgery be generalized to account for judicial attitudes and interests in other sorts of cases and, in particular, judges' attitudes toward their role in criminal appeals? Perhaps the difference between the appeal-happy or trial-focused pictures painted by McGowen and Handler, respectively, can be traced to this point: in cases of forgery, one was dealing with a very different kettle of fish.

These reflections and musings aside, both Handler and McGowen add much to the scholarship on this period of nacency for the criminal appeal. In different ways, both helpfully place the development of criminal appeals in a broader institutional and legal historical culture. Professor Oldham's contribution to this forum does the same, this time focusing on the lawmaking function of the twelve judges. There are points of contact between Oldham's piece and the other articles. Both Oldham and McGowen, for example, emphasize the importance of the reporting of decisions prior to the establishment of the CCCR in 1848, highlighting the manner in which the formal or informal reporting of the decisions of the twelve judges would energize and fuel criminal review in subsequent cases. In this, both authors provide another piece in the story about the importance of legal reporting in the development of the common law. Yet Oldham's discussion of case reporting is a smaller part of an argument that makes a significant contribution to understanding the lawmaking role of the twelve judges during a period in which formal criminal appeals had yet to emerge.

Oldham rightly notes the horizontal structure of judicature in this period but makes the argument in his piece that the twelve judges nevertheless had an important de facto function in clarifying and expounding the criminal law. Oldham is writing against Stephen's assessment that the informal review procedure performed by the twelve judges had “nothing to do with law-making.” His conclusion is that the twelve judges could well be thought of as “a de facto court of appeal that was producing binding precedents.” Indeed, he ultimately concludes that despite certain shortcomings of the informal procedure before 1848 (and in his accounting, Oldham omits the fact that until 1848 no matters heard at quarter sessions could be reserved to the twelve judges despite the expansion of these tribunals' jurisdiction)Footnote ⁵ this procedure held certain advantages and benefits for the defendant and, certainly, for the trial judge.

In support of his reconstruction of the lawmaking role served by the twelve judges, Oldham teases out the way in which precedent appeared to function at this time while also pointing to the judges' role in statutory interpretation and setting evidentiary and procedural rules. This latter function of expounding evidentiary rules opens up a dimension in which Oldham might have more completely set the work of the twelve judges in the institutional setting of its time. Langbein has argued that the emergent law of evidence during this period is best understood as part of an arc involving the waxing and waning of various mechanisms for error correction.Footnote ⁶ Formal rules of evidence became necessary as the trial judge's capacity to directly control the jury decayed over the course of the late eighteenth and early nineteenth centuries. When other modes of influence over juries (such as judicial comment, the use of special verdicts, and refusal to accept a verdict) fell into disrepute, a developed law of evidence could fill the void and assist in shaping the way that juries decided cases.Footnote ⁷

It is here that I wish to point to an institutional relationship that is only tacitly raised in these three articles but that would seem important to the way in which these authors' unique contributions are understood and fit within the institutional and historical period during which criminal appeals emerged. The relationship of interest to me here is that between the judiciary and the jury. I have gestured to this point in my reflections on both Handler's piece and Oldham's analysis but the point is equally true of McGowen's article. I have suggested that at least parts of the lawmaking function served by the twelve judges are fruitfully set in its relationship to the criminal justice system's various experiments in jury control. With respect to Handler's argument about the trial-centeredness of the judges, I have pointed to ways in which this focus on the trial court might be specifically anchored in certain un-noted functions served by criminal juries. With respect to forgery, one can readily take McGowen's already provocative explanation of the judges' interests in preventing economic disruption and contrast this with what might have been the sentiments and sympathies of those future riders of the Clapham omnibus who would be serving on the late eighteenth century jury. In short, I am suggesting that the history of criminal appeals can not be told without reference to the history of jury control and shifting systemic attitudes toward the jury, attitudes colored by considerations ranging from theology to economic interest. The criminal appeal and the criminal jury are tethered in complex and surprising ways. In making distinctive contributions to our understanding of the history of criminal appeals, each of the fine articles in this forum also points to important insights about the changing attitudes toward and functions of the criminal jury.