Prosecuting Homicide on the Coroner’s Inquisition

By Cassie Watson; posted 26 December 2018.

Eighteenth- and nineteenth-century coroner’s juries regularly returned verdicts that appeared to determine questions of criminal liability, in a parallel yet subtly different process from that conducted by magistrates. In his widely influential Crime and the Courts in England 1660–1800, J. M. Beattie suggested that indictments always alleged murder, whatever the findings of the inquest, so that a defendant would have to explain the circumstances that led to the victim’s death.[1] While trial on indictment may well have been the usual end point for homicide cases, we should not lose sight of the role played by trial on the coroner’s inquisition. The relationship between the inquisition and the indictment, and between the trials that ensued, suggests that coroners and their juries played an important role in the gradual shift from private to public prosecution.

Coroners: Legal Powers and Duties

By the eighteenth century the main duty of the coroners in England and Wales was to hold inquests on all persons who died suddenly or in unexplained circumstances, to establish cause and manner of death.[2] Five points in the law relating to coroners were especially significant:[3]

  1. They had to put evidence in writing, but only in cases of homicide.
  2. They had the power of magistrates; some franchise coroners were indeed also active magistrates by virtue of their office.
  3. They had to abide by the inquest jury’s decision (but juries did not always defer to them).
  4. In inquests that resulted in a homicide verdict, coroners had to take recognisances for someone to prosecute and for witnesses to give evidence.
  5. Coroners were responsible for drafting the inquisition, the formal record of an inquest, which was equivalent to the finding of a grand jury and comparable to an indictment found to be a true bill.

Trial on inquisition was distinct from trial upon indictment, and surviving records show that accused killers were often tried both on indictment and on inquisition. Crucially, however, trial upon indictment always occurred first. This meant that although coroners and their juries of local men had decided that the accused had a case to answer, there were two stages at which that case could be thrown out of court. First, the evidence went before a grand jury of county magistrates; if they decided there was no case to answer, the individual could be tried on the inquisition if the prosecutor chose to offer evidence. If the grand jury sent the case for trial and a petty jury acquitted the defendant, s/he could be tried again on the inquisition but was almost certain to be acquitted again. The inquest jury could bypass the grand jury, but the trial jury, made up of county ratepayers, always had the final say.

Trial on the Coroner’s Inquisition

In London, inquisitions were an important means of prosecuting homicide. The coroner was clearly present in court during some Old Bailey trials, but was only recorded when he asked or answered a question; it is unclear whether coroners were always present during trials held on an inquisition. They did not act as prosecutors themselves, at least not often, but did occasionally appear as witnesses. In Wales, however, the coroners themselves began to prosecute or to bind overseers of the poor to do so.[4] In London, parish officials were bound by coroners to prosecute in the 1740s, but the trial transcripts do not provide consistent evidence for this.

Was anyone convicted of murder or manslaughter on an inquisition alone? Yes, but infrequently. At the Old Bailey only one person was convicted—of manslaughter—after trial upon an inquisition in the period 1730–1760,[5] and in 1784 another man was convicted and fined.[6] In Berkshire in 1818 a fight between two men led to a manslaughter conviction for the survivor.[7] Several cases were tried on an inquisition in Wales during the 1820s, including those of poisoner Margaret David, who was found not guilty on the grounds of insanity and ordered to be confined in an asylum;[8] and Samuel Roberts, who, despite being found to have no case to answer by a grand jury, was tried for murder on the coroner’s inquisition and convicted.[9] He was either reprieved or convicted of manslaughter, as he was sentenced to be transported for life; Australian records confirm his arrival in New South Wales in November 1826.[10]

The rarity of such cases suggests that where inquest and grand juries were in disagreement, the latter could easily undermine the intentions of the former when they did not think the facts merited a trial, or where they believed a lesser charge was appropriate. Given that coroners were expected to follow the same legal principles as magistrates when determining guilt, such discrepancies suggest variations between popular / local and centralised / elite views about criminal responsibility.

Inquisition for murder
Richard Clarke Sewell, A Treatise on the Law of Coroner; with Copious Precedents of Inquisitions, and Practical Forms of Proceedings (London: Owen Richards, 1843), p. 260.

The Relationship between Inquisition and Indictment

The inquisition, which was always produced immediately after an inquest, provided the basic details included in the indictment, which might be drawn up months later, depending on when the assizes were held. They generally looked very similar if the coroner had written the inquisition fully and correctly; both concluded with a few lines reiterating the fact of felony, and that the accused “did kill and murder” or, in cases of manslaughter, “did kill and slay” the victim.

Infanticide cases are some of the most revealing of differences between local and central attitudes. In cases where an inquest decided that an infant was stillborn, yet an indictment for murder was prosecuted, the impetus seems to have come largely from local people who, dissatisfied with the inquest findings, could attempt to convince a magistrate to enter a prosecutor and witnesses into recognisances. By contrast, many cases sent for trial by coroners resulted in acquittal. In his seminal work on infanticide, Mark Jackson noted that depositions provide a richer source of information than indictments or inquisitions about “the circumstances that generated suspicions of murder”,[11] but when proceedings on indictment are compared to those on inquisition they offer a fresh perspective on the complex relationship between coroners, magistrates and local people. Before the development of the police and magistrates’ courts, coroners often took a leading role in the investigation of homicide but, by definition, their role ceased when the inquest ended.

Old Bailey ProsecutionsAt the Old Bailey, the number of trials held on both an indictment and an inquisition began to decrease in the early nineteenth century, suggesting that the inquisition was becoming less important in the prosecution of homicide. But the rising proportion of trials held on inquisition alone suggests that coroners and their juries were trying to make a statement: many of these cases involved infanticide or death by dangerous driving. In Wales, the prosecution of all crimes against the person by local officials, particularly overseers of the poor, became increasingly common over the period, especially towards the end of the eighteenth century; but it was most noticeable in cases of infanticide, where 18.3% of indictments were prosecuted by overseers, coroners or churchwardens, versus only 9% of prosecutions for other forms of homicide.[12]

Later Sources of Friction

During the nineteenth century the relationship between coroners and magistrates grew increasingly fraught, with financial issues largely the root of the problem.[13] In 1846 the crusading coroner, editor and MP Thomas Wakley (1795–1862) aroused the ire of magistrates when he committed an individual to prison to ensure that they did not flee, thus overstepping his legal authority.[14] In 1867 the grand jury in County Durham argued that coroners should not have the power to commit people for trial, because money was wasted when grand juries threw out the majority of such charges.[15]

By the early 1870s, when government proposals for the creation of a public prosecutor were under consideration, prosecutions were generally undertaken by the police and magistrates’ clerks.[16] In the opinion of Mr Justice Lush (1807–1881), a coroner’s inquisition had little value as an indictment and led to needless expense, because a bill was always presented to the grand jury: “If the bill is found the trial takes place on the finding of the grand jury, and as a matter of form the prisoner is arraigned on the coroner’s inquisition also. If the bill is ignored, it is the practice not to offer any evidence on the inquisition.”[17]

But the Home Office recognised that there was still a valid role for committing on the coroner’s inquisition: “There was a specially noteworthy case of committal upon Coroner’s Inquisition only … in 1879–80 when James Lewis Paine (sic) … was committed for trial for murder, convicted of manslaughter by alcoholic poisoning and sentenced by Hawkins, J. to penal servitude for life.”[18] The tenacity of the coroner and his jury prompted the prosecution of a defendant who might otherwise have walked free.

Conclusion

The Office of Director of Public Prosecutions was instituted by the Prosecution of Offences Act 1879, when the inquest was well on its way to assuming the non-prosecutorial role that it plays today, as a means of investigating the circumstances of a death; but had not yet abandoned the crime-fighting role that coroners of earlier generations had necessarily to adopt. The costs of prosecution, and the consequent reluctance of poor people to prosecute, have been recognised by historians of crime,[19] as has the importance of the new police as prosecutors.[20] The activities of coroners and their juries should also be seen as a stage in the slow move towards public prosecution.


Images 

The National Archives, CHES 24/188 part 2, Chester Mainprize April 1819: inquisition on which John Haslam the younger has been tried and acquitted of the manslaughter of William Allen, who died on 11 February 1819 at Great Budworth, Cheshire. Reproduced by permission; not to be copied.

Thomas Wakley. Stipple engraving by M. Fernell, 1835, after J.K. Meadows. Credit: Wellcome Collection; CC BY licence.

Caricature of Robert Lush by Spy (Leslie Ward) in Vanity Fair, May 1873. Public domain, via Wikimedia Commons.


References

[1] J.M. Beattie, Crime and the Courts in England 1660–1800 (Princeton: Princeton University Press, 1986), 80-81.

[2] For the history of the office of coroner, see P. J. Fisher, “The Politics of Sudden Death: The Office and Role of the Coroner in England and Wales, 1726–1888” (unpublished PhD thesis, University of Leicester, 2007).

[3] See Edward Umfreville, Lex Coronatoria: or, the Office and Duty of Coroners, Vol. 1 (London: R. Griffiths; T. Becket, 1761), ch. 15; Edward Umfreville, Lex Coronatoria: or, the Law and Practice of the Office of Coroner, rev. J. B. Grindon (Bristol: Baldwin, Cradock and Joy, 1822), chs. 16, 18–19; Richard Clarke Sewell, A Treatise on the Law of Coroner; with Copious Precedents of Inquisitions, and Practical Forms of Proceedings (London: Owen Richards, 1843), part 4, ch. 1.

[4] Evidence of this practice is revealed by keyword searches of two important online resources: The Proceedings of the Old Bailey, 1674-1913 and the National Library of Wales’ crime and punishment database (1730-1830).

[5] Trial of Joshua Floyd for manslaughter, ref. t17320525-13.

[6] Trial of John Taylor the younger for manslaughter, ref. t17840526-57.

[7] The National Archives, ASSI 6/1/2, John Farmer (Berkshire 1818).

[8] The Cambrian, 3 Sept 1825, 3. Although her lack of sanity was not in doubt, she had to be formally charged so that she could be permanently confined, under the terms of the Criminal Lunatics Act of 1800.

[9] The National Library of Wales, Great Sessions 4/73/7, Samuel Roberts (Denbighshire 1825).

[10] Home Office records appear to record only the no bill, not the trial on inquisition (TNA HO 27/31 p.94), but do record his status as a convict (TNA HO 11/6 p.48).

[11] Mark Jackson, New-born Child Murder: Women, Illegitimacy and the Courts in Eighteenth-Century England (Manchester: Manchester University Press, 1996), 18-19.

[12] Katherine D. Watson, “Women, violent crime and criminal justice in Georgian Wales,” Continuity and Change 28 (2013): 262-263.

[13] Fisher, “The Politics of Sudden Death”, 223; J.D.J. Havard, The Detection of Secret Homicide: A Study of the Medico-legal System of Investigation of Sudden and Unexplained Deaths (London: Macmillan, 1960), 55-65.

[14] TNA, TS 25/231, Powers of a Coroner to commit to prison for safe custody a person charged with murder pending an inquest, March 1846. See also The Morning Advertiser, 10 April 1846, 3.

[15] TNA, HO 45/7989, Power of coroners to commit people for trial, 1867.

[16] Judicature Commission, Fifth Report and Appendices (Public Prosecutors; Circuits and Assizes), C.1090 (1874), First Appendix: Public Prosecutors, p. 3. My thanks to Dr Conor Hanley for this reference.

[17] Ibid., pp. 4-5.

[18] TNA, HO 144/52/89447A, A case of committal on Coroner’s inquisition for trial for murder (convicted of manslaughter), 1879–1897.

[19] Beattie, Crime and the Courts in England 1660–1800, 41-48; Peter King, Crime, Justice, and Discretion in England 1740–1820 (Oxford: Oxford University Press, 2000), 47-52.

[20] Clive Emsley, Crime and Society in England 1750–1900, 4th edn (Harlow: Pearson Education Ltd, 2010), 200-202.

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