Thursday, February 08, 2007

Crime and the Law

This is a very well-researched subject among historians of the eighteenth century. Our knowledge is in the process of being transformed by the wonderful Old Bailey website. Do visit!

To social commentators like Henry Fielding the key cause of crime was not poverty but ‘luxury’ - a word which symbolised the dangerous aspirations of those who sought material possessions and ‘diversions’ above their station. The gin epidemic, for example, was seen as a cause not a consequence of poverty. The growth of crime was the obverse of the consumer revolution: (a) increasing expectations (b) increase in volume and range of goods in circulation.

One strategy against crime, especially highway robbery, was the bill of exchange. But watches, silk handkerchiefs or even wigs could be stolen from individuals with relative ease from the swelling number of shops. The word shoplifting was first used in 1680.

Patterns of crime

During the first half of the century the incidence of crime appears to have been fairly stable. In the second half of the century, perhaps because of population pressures, crime began to rise, particularly in the towns. The overwhelming majority of crimes were against property. Contemporaries believed they were living in the midst of a crime wave.

The pattern of indictments for Surrey and Sussex shows a correlation with economic pressure; indictment levels matched wheat prices and the trade cycle. Indictments also rose after wars with the demobilization of large numbers of soldiers. This also reflects the gender and age structure of those indicted - young unmarried men. During wartime (with the removal of young males) women made up a larger proportion of those indicted.

Crime tended to be most prevalent and threatening in and around London. It was often the work of gangs and habitual offenders.

The great fictional criminals are Moll Flanders and Macheath.
The Beggars’ Opera (1728) was arguably the most popular play of the 18th century. Boswell saw the play on 19 May, 1763 two weeks after witnessing the execution of Paul Lewis.
In 1724 the thief and escapee, Jack Sheppard was hanged. He is believed to have been the model for Macheath. After his second escape from Newgate and his subsequent recapture, many ballads were published about him. There were many ‘historians’ of his life and his portrait was painted by Sir James Thornhill. He received many distinguished visitors while in prison. He was used as a mouthpiece to denounce the hypocrisy of society. This glorification of the highwayman is especially associated with the Walpole era.

Sheppard was captured by the thief-taker, Jonathan Wild. Wild was by origin a buckle-maker from Wolverhampton. He then became a pimp, a brothel-keeper and finally a receiver of stolen goods. Posing as a ‘thief-taker’ he set up an ‘Office for the Recovery of Lost and Stolen Property'. He apprehended wanted felons with a posse of assistants for the reward. The felons he passed on to trial were his victims, set up by him. In 1725 one of his own gang, Blueskin Blake, whom he had betrayed, attempted to cut his throat. Wild was convicted of taking a £10 reward for the return of some lace whose theft he had arranged, and hanged.

Dick Turpin (1705?-1739) was convicted at York for horse-stealing and hanged in 1739. He became a popular hero after Harrison Ainsworth’s romance Rookwood (1834).

The law
Britain was a politically decentralized state, in which the sources of political and legal action remained parochial. Local law enforcement was in the hands of the magistrates (increasingly clergy) and the Quarter Sessions.

The Glorious Revolution established the principle of an independent judiciary and of regular meetings of parliament. English law was regarded as superior to all other systems. Torture was not allowed, legal proceedings were public, trial by jury was common, habeas corpus acted as a safeguard for liberties, and the judges were not subject to political intimidation.

It is a truism that the Revolution made the world safe for property - which was the only guarantee of full citizenship. But it is also true that the non-propertied saw the law as the guarantor of their interests as well. Gentlemen formed the smallest group of prosecutors; 14-18% of prosecutions were initiated by labourers or servants. Some historians (especially of the ‘Warwick school’ associated with E. P. Thompson) have emphasized the importance of ‘social crimes’ such as poaching and smuggling, which were not popularly regarded as crimes. But these were also big businesses, and although there was much sympathy for individual small-time highwaymen, smugglers and poachers, most Britons believed that the law protected all. There was widespread revulsion at the murder of a customs officer by a gang in 1749.

The administration of the law
Those who administered the law were local unpaid amateurs. Magistrates heard cases and took it upon themselves to discharge suspects or to send them for trial. Parish constables, who were responsible for arrests, were either appointed or elected annually. These people had to live in the community. Consequently a third of those prosecuted for crimes against property in Surrey between 1736 and 1753 were acquitted.

The Bow Street Runners: London presented a different pattern from the rest of the country. In an anonymous shifting population, the parish system was no longer effective as a unit of law and order. Felons were arrested by means of a general ‘hue and cry’ or through the action of professional thief-takers such as Jonathan Wild.

In 1748 Henry Fielding was appointed justice of the peace in Westminster. On December 9 1749 (in the same year that his Tom Jones was published), he moved into the large house in Bow Street (near the current Covent Garden opera house). The ground floor of the house served as his court room. Bow Street was next to the parish of St Giles where 30,000 people lived in cramped, unhealthy circumstances, and to the hundred of Drury - the theatre district around Covent Garden square which was notorious for its bawdy houses. In order to deal with crime, Fielding set up a band of six constables. Initially nicknamed Robin Redbreasts, on account of their scarlet waistcoats, they were soon known as the Bow Street Runners. Their functions included serving writs, detective work and arresting offenders. At first they worked for reward money, but they were later given one guinea a week plus a bonus for each successful prosecution.

When Henry Fielding died early in 1754 at the age of 47 his place was taken by his blind half-brother John who was principal magistrate for Westminster from 1754 to 1780 and pursued criminals with a religious zeal. His “runners” would pursue felons across the country and became widely feared, albeit they may have been little better than those they pursued. Fielding never tired of talking up the merits of his runners and was a tireless propagandist for the idea of a national police force, but his efforts were met with the familiar concerns about civil liberties and financial costs of such a scheme. He was knighted for his efforts in 1761.

In 1792 an Act of Parliament (the Middlesex Justices Act) established seven more offices on the Bow Street model and enabled the Bow Street office to be called on by other parts of the nation, laying the basis for the future Scotland Yard.

The penal code

The 18th century penal code is notorious for the high number of capital statutes. In 1688 there were about 50, by 1800, 200. A statute of 1698 made the theft of goods worth more than 5/- a capital offence. The Black Act of 1723 created 50 capital offences. Most of the Acts were specific: laws against damaging Fulham Bridge (1725), Westminster Bridge (1736) and forging an entry in the North Riding Land Register (1735). But people were usually executed for very traditional offences - forgery, sheep-stealing, theft from shops and warehouses. In fact there were probably fewer executions in the 18th century than the 17th. One reason for the huge number of capital offences lay in the conceptual poverty of English law. There was no overall criminal code or general definitions of offences so separate statues were required for separate crimes.

Trials lasted ½ an hour on average and the same jurors would hear many causes. But c. 1700 it became the practice to take a verdict at the end of each trial instead of requiring jurors to hold several cases in their heads at once. Juries acquitted over 1/3 of all prisoners.
By the time of George I the Crown began to engage lawyers regularly in certain kinds of case. From the 1730s defence council was also increasingly employed though this was technically forbidden in cases of felony. By 1800 counsel was commonly retained.

By the end of the century 200 people a year were executed in England and Wales alone. The number sentenced to death was far higher. Between 1770 and 1830 7000 men women and children were executed out of 35,000 sentenced. But the figures varied wildly from year to year.

Many judges sought strenuously to use mediation and negotiation and did not automatically reach for the most severe punishment. At the end of the quarter sessions the assize judges decided who of those they had sentenced should be reprieved. For those they did not spare, there was always the prospect of a royal pardon. The number pardoned increased from around 50-60% in the early to mid-18th century to c. 90% in the early 19th. Pardon was an assertion of the terrifying majesty of the law. But it was also a genuine attempt to take individual circumstances into account, such as the condemned person’s good record. Recent evidence suggests that judges weighed up the evidence very conscientiously.

Only a small proportion of those executed were murderers: in London and Middlesex only 10% of those executed between 1749 and 1771. Of the rest, 43 had been convicted of burglary and 31 of highway robbery. The law as theatre The cult of Tyburn was highly ritualised: the judge’s black cap, the triumphant procession to the gallows, the sympathy of the crowd, the ballad sales. There was a flourishing ‘confession’ literature.

In 1783 the Newgate Act ended the procession to Tyburn. As fashionable estates developed north of Oxford Street and close to the Edgware Road local landowners petitioned for the removal of the gallows and Newgate was decided on as the new venue. The Newgate gallows was built with a ‘drop’ though this does not seem to have shortened the progress.

In 1718 and 1719 Acts were passed which extended the use of transportation and placed the administrative arrangements to effect the sentence on the county or borough authorities concerned, whether the sentences were passed at Assizes or Quarter Sessions. Transportation was to be for seven years for offences without benefit of clergy and for fourteen years for those condemned to death and pardoned on condition of transportation. In the 50 years following the Acts some 50,000 convicts were transported to the American colonies. This rapidly became the preferred penalty for property offences.

With the revolt of the American colonies the government resorted by an Act of Parliament of 1776 to holding would-be transportees in the ‘hulks’, old moored ships. But these could have held only c. 60% of those under sentence of transportation, which left several thousand kept in gaols. From 1787 transportation was resumed – but to Australia (and ended in 1840).

Before the end of the 18th century prisons were primarily places of safe custody for those awaiting trial, or awaiting punishment in the form of execution of whipping, or in custody until fines, fees or debts were paid or sureties found. Until the end of the century prisons were run by the gaolers as a commercial enterprise, prisoners paying fees to the gaoler and also paying for their board and lodging if they could afford to. Gaolers made additional money selling liquor to their prisoners. But though local prisons were run for profit, they were provided for by the local authorities. In county gaols the prisoners were the sheriff’s responsibility and he appointed the gaoler. County justices were empowered to levy rates to give poor prisoners a small daily allowance of bread and beer. With the loss of the colonies, imprisonment became more popular. In 1776 only 653 persons were imprisoned (almost 60% were debtors). Most prison sentences were short. The prisons were county gaols or houses of correction. By the 1780s over 50% of men convicted on non-capital offences in Surrey, had received terms of imprisonment, in about 25% of the cases accompanied by a whipping.

The 1770s and 1780s saw the enthronement of imprisonment as the new key sentencing option. Solitary confinement was not seen as cruel but as a means to force the offender to reflect on his crime and repent.

The prisons came under attack from the reformer, John Howard, who from the 1770s exposed the dirt and disease in his reports on the State of the Prisons. But some of the conditions he described were temporary, due to the overcrowding following the end of transportation and from the greatest crime wave since the 1720s. The trend to incarceration was not reversed with the dispatch of the first transportation ships to Botany Bay.

By the end of the century c. 70% of non-capital offences were punished with imprisonment. Popular shaming rituals began to be replaced by forms of correction which occurred out of the public gaze and which at least some reformers believes should produce repentance and rehabilitation rather than merely serving to punish and deter.

Was the law an instrument of social control?
This is an over-simplification. Most litigation was introduced by private individuals against people of roughly the same standing. The law was used overwhelmingly by the broad middling orders of society against each other, rather than being used by the propertied elite against the rest. In the Essex Quarter Sessions between 1760 and 1800 over 20% of prosecutions for felony were brought by labouring men, and the lesser middling orders like tradesmen and artisans contributed 30-40% more. Trial by jury meant that verdicts in many cases were delivered by men of middling orders. By the end of the 18th century the ‘innocent until proved guilty’ principle had made its appearance.

Criticisms of the law
However, this did not prevent many criticisms of the law’s abuses. In 1735 the barrister William Hay (1695-1755) deplored what he claimed to be the execution of more persons for theft in every six months in London than for offences of all kinds in most other countries over three years. In 1767 an English translation popularised the pleas of the Italian jurist, Cesare Beccaria (1738-94) for consistent, predictable and non-retributive punishment. Critics viewed public executions with great distaste as degrading spectacles. The growth of sensibility allowed for a greater emotional identification with those who were executed.