388 Crime and the State
This had been an important decision. It confirmed and reinforced the private
character of criminal prosecution while advancing the government’s interests—
yet another example of the overlapping of private and public concerns in the ad-
ministration of the criminal law. Even more, it encouraged and supported a
fundamental shift in criminal practice by providing financial support for the en-
gagement of lawyers in trials. Some of the payments made by the treasury solici-
tor for cases organized under the direction of the attorney-general had gone for
the services of solicitors to collect evidence and manage prosecutions, or at least
to analyse depositions and confessions of witnesses, and to prepare briefs to
guide the effective prosecution of the case in court.^58 The new system that De-
lafaye described in 1724 —that is, one in which the administration simply pro-
vided money for private citizens willing to take on the business of prosecuting
seditious and riotous behaviour—seems even more likely to have encouraged
such prosecutors to engage solicitors, as Delafaye acknowledged in his letter to
Cracherode.^59
If the government’s interest had remained entirely focused on treasonable ac-
tivities and similar public order offences, their encouragement of prosecutions
in the 1720 s might not have had implications for the trial of felonies—trials in
which defendants had not hitherto been allowed to engage counsel and in
which prosecutors rarely did. But their view of what constituted a threat to the
state and to public order widened beyond sedition and riot in the course of the
reign of George I to take in forms of violence involving private citizens. In 1721
Secretary Townshend instructed the attorney-general to prosecute at the gov-
ernment’s expense a servant who had been accused of breaking into the bed-
room of his master’s daughter and of attempting to rape her.^60 A few months
later he wrote to him again about a case that had raised a great deal of public
interest: the attempt to murder his brother-in-law in a particularly vicious way
by one Arundel Coke, Esq. The king, he said, was anxious that Coke ‘should not
escape unpunished’, and that ‘His Majesty has commanded me to signify to you
his Pleasure that you take care that he be prosecuted at his Maj[es]ty’s Expence
and that able Council [sic] and a proper Solicitor be employed to attend that
prosecution’.^61 In the event, the assistant treasury solicitor, Nicholas Paxton,
(^58) For the increasing engagement of solicitors in the preparation of criminal cases by government
departments and private prosecutors, see Langbein, ‘Prosecutorial Origins of Defence Counsel’, 325 – 56.
(^59) When Lord Coningsby wrote to the lords justices in 1719 , for example, about an innkeeper drink-
ing the Pretender’s health, the under-secretary ordered that the man be punished by having his licence
removed and that this be accomplished by a prosecution undertaken by an attorney hired by Coningsby
who would be reimbursed (SP 44 / 279 , p. 28 ).
(^60) SP 44 / 81 , pp. 5 – 6.
(^61) Ibid., p. 24. The case was reported in the State Trials(vol. 16 , 53 ) and is discussed by Langbein, ‘Pros-
ecutorial Origins ofDefence Counsel’, 332 – 3. It is not impossible that the king was in fact responsible for
this decision. It is known that George I’s alleged lack of interest in England is entirely unjustified. He kept
himself well informed on English affairs through his ministers, his Hanoverian servants, and his engage-
ment in the cabinet discussions of capital punishment in London (Beattie, English Court of George I, 138 – 52 ,