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This chapter discusses the fourth volume of Blackstone's Commentaries (1769), asking what contribution this volume makes to English criminal law. Issues addressed include the general structure of Blackstone's discussion, the relation between Blackstone's treatment and those of his precursors (especially Sir Matthew Hale and William Hawkins), the historical and literary range of Blackstone's references, the nature of his legal reform agenda, and his conception of the book's audience. The discussion begins by considering how criminal law figured in Blackstone's effort to provide an integrated account of the legal system. Next, the chapter addresses questions of intention, will, and capacity, to highlight some differences between Blackstone's aims and the expectations that a modern reader might bring to a general overview of criminal law. The final two sections deal with Beccaria's influence on Blackstone's recommendations for criminal law reform, and Blackstone's preference for legislative change rather than reform of the common law.

This article examines the emergence, over the last two decades, of a doctrine that bases probable cause on the unshared knowledge of different law enforcement agents working together on an investigation. Thus if an officer conducts a search or arrest without probable cause, the action may be validated by looking to the other officers' knowledge. So far the rule has been confused with the "collective knowledge" rule and has traveled under that name. The article argues that the new rule (here called the "constructive knowledge" rule) depends on constructive belief and may establish constructive, not actual, probable cause. While the rule might seem to be justifiable on the ground that the officers would have pooled their information in any case, research on cognitive bias suggests that an after-the-fact analysis of the officers' knowledge would likely exaggerate any inculpatory evidence while disregarding exculpatory evidence. Fourth Amendment law imposes few formal ex ante requirements on officers, but some de minimis formality is appropriate here, as we may see by looking to the role of collaborative decision-making in administrative law. The article argues that courts should make explicit the rule's "inevitable communication" premise, and should refuse to aggregate the unshared information. Failing that, courts should require the prosecution to show that the officers would have shared their knowledge before leaving the scene. The "constructive knowledge" problem reveals the difficulty of factoring the risk of error into the analysis of probable cause when the requisite quantum of cause remains fixed in all cases. That difficulty, in turn, suggests that the probable-cause calculus may be likened to the Mathews v. Eldridge formula for termination of governmental benefits. This analogy points up other difficulties with the notion of "transsubstantive" probable cause.

Bushell's Case, 24 Eng. Rep. 1006 (C.P. 1670), established that jurors may not be fined or imprisoned for returning a verdict that conflicts with the judge's assessment of the evidence. Chief Justice John Vaughan's opinion did not defend jury nullification - in fact, the opinion asserted that jurors must follow the judge's directions concerning the law - but the opinion has long been recognized as a crucial resource for those who advocate nullification. Modern defenses of jury nullification that draw on Bushell's Case often point to Vaughan's argument that jurors must be permitted to form their own views because reasonable people may disagree about a witness's credibility or the reliability of the evidence. In the 1680s, however, when Bushell's Case was first being publicly debated, commentators focused primarily on Vaughan's argument that because jurors were chosen from the locality where the crime occurred, they should be presumed to have personal knowledge of the facts of the case. By the late seventeenth century, however, this premise was untenable. This article considers why the "personal knowledge" argument might have been so appealing, despite its implausibility, and examines the process by which that justification for jury nullification gave way to the "independent assessment" argument. In the course of the movement from the first justification to the second one, Bushell's Case began to viewed as supporting the jury's right to find both fact and law - a right that Vaughan had never defended.

Women : politics, culture, and the law / Joyce W. Warren -- The very idea of a slave is a human being in bondage? / Jeannine Marie Delombard -- The corporation and the transformation of American culture / Aaron Ritzenberg -- Deviance in nineteenth-century American law and culture / Tal Kastner -- Comparative racialization and American Indian identity in nineteenth-century America / Cheryl Suzack -- The legal person : tracing the history of a forensic fiction / Susanna L. Blumenthal -- Law in nineteenth-century American periodicals / Michael H. Hoeflich -- Spectacular judgments : law and disorder in the nineteenth-century visual imagination / Jon Blandford -- Legal language : expansion, consolidation, resistance / Robert l. Tsai -- The impersonation of justice : lynching, dueling, and wildcat strikes in nineteenth century America / Norman W. Spaulding -- The Somers mutiny and the American ship of state / Robert A. Ferguson -- The emergence of a right to privacy / Milette Shamir -- The science of identity / Simon A. Cole -- The American prison, 1786-1860 / John Cyril Barton -- How meetings won the west / Andrea McDowell -- A gatekeeping nation : Asian invasion and the rise of xenophobic immigration law / Edlie Wong -- Mark twain's puddenhead Wilson / Trinyan Mariano -- Civic capacity and participatory citizenship in the nineteenth century United States / Yvonne Pitts -- Vital tissues of the spirit? : constitutional emotions in the antebellum United States / Doni Gewirtzman -- Beyond belief : religion, law, and popular culture in the forgotten century? / Deborah Whitehead -- Gothic stories, mens rea, and the American criminal law / Laura I. Appleman