18th Century Crime and Punishment

A/N: Part I: Paper 10 essay from Michaelmas term of the 2008/09 academic year. I was supervised by Dr. Forster at Clare.

The historiography of this topic has been dominated by two opposing views. One camp is adamant that eighteenth century law was the tool of the rich, used primarily to protect their property from the light fingered poor. The violence of the so called ‘bloody code’, shocking in its severity to modern sensibilities is, historians like Hay argue, irrefutable proof of the triumph of the rich over the poor. He argues that it was a rare occasion when a member of the propertied classes was brought to justice using such legislation, yet it was at their disposable to provide redress from an ever growing number of offences throughout the eighteenth century. The opposition camp, comprising of historians such as Langbein have, using the same evidence, put forward the idea that Hay and his followers are blinded by the tragic stories of individuals and, as a result, fail to fully acknowledge any evidence which contradicts their black and white view of the eighteenth century legal situation. They claim that far from monopolising the legal system the propertied classes actually encouraged the lower orders to bring cases to court, providing subsides to cover expenses and switching the language of court to English. This essay will seek to refute the idea that the law could really have straight forwardly have favoured one section of society to the total exclusion of the other. It will also attempt to prove that modern ideas of whom the law protected differ from contemporary perceptions, suggesting that the history of this topic can never be fully reduced to the stark simplicity of statistics.

At a time when the number of executions in most European states was falling, the scope of capital offences in England and Wales was actually being broadened to offer protection of property rights, the rights of the rich. In the second half of the eighteenth century almost five times as many people were executed in London than in the first half, a figure which sits awkwardly with those from other major European cities such as Amsterdam which saw, on average, less than one execution per annum by the 1780s. Hawkins wrote in 1788 that specification of offences had been necessary as ‘the increase of commerce, opulence and luxury has introduced a variety of temptations to fraud and rapine.’ These laws included newly specified crimes such as those against the ‘clipping’ of coins in the 1690s as well as the reclassification of crime already on the statute books; the 1690s saw benefice of clergy removed from robberies of goods or money over 5s for example. Radzinowicz found that the total number of capital statutes in English law grew from around 50 in 1688 to over 200 in 1820, the majority of which were introduced as private members bills, received little debate and, uniquely in the passage of English law at this time, were not referred to judges for scrutiny. Gilmour points out that as crime was actually falling in this period the passage of such acts was not exactly in the public interest, but rather in the interest of the propertied men who sat in parliament and those who had their ear; many acts, like the Shoplifting Act of 1699, began life as a petition from interest groups. Historiography in favour of this view of eighteenth century English law is saturated with tragic tales of teenagers and near innocents being led to the gallows, shaking with terror, to provide an example to the rest of the lower orders, for, with this theory it is the lower orders who were the receivers rather than the instigators of punishment. Gilmour, with characteristic flourish, uses the technique to good effect when comparing the frenzied attempts to save Dr. Dodd, chaplain to the king, from the gallows with the apathy towards the 15 year old ‘nobody’ hanged with him in 1777. Certainly at first glance the system would seem biased overwhelmingly in favour of the propertied classes.

Opponents of this view have, however, been keen to point to the statistical evidence. Langbein’s study of four sessions at the Old Bailey showed that the majority of felony cases were actually brought by what we would think of today as the lower middle and upper working classes. This finding is backed up by King’s figures from the Essex quarter sessions which revealed that 90 per cent of prosecutors there came from three groups: farmers, tradesmen and artisans, and labourers - although it must be noted that King himself is curiously reluctant to diverge much from Hay’s findings on the topic even in the light of his own research. Such research, even accounting for the relatively small sample groups, does seem to cast significant doubt over Hay et al’s assertion that cases brought by those outside of the gentry were few and far between and, in any case, financially supported by employers or local officials, something which has in no way been proven. This view was probably mistakenly reached by considering only the obstacles faced by prospective prosecutors. As contemporaries were well aware the prosecution process was costly, time consuming, and could leave the prosecutor open to retribution; Henry Fielding argued the case for subsidising costs for those on low incomes to boost prosecution rates, something which was incorporated into law in 1752 and 1754. In spite of this subsides rarely covered all the costs and towards the end of the century there were attempts to remove the heavy use of rewards as incentive to prosecute highwaymen and gangs, two categories of criminal which were guaranteed to cause excitement to eighteenth century sensibilities. The subject of who prosecuted and why is one of contradictions, the majority of prosecutors were poor and although subsides and rewards must have been attractive their use was not comprehensive enough – nor of sufficient monetary value – to incite the number of cases the courts saw. What the issue does prove however is that there are shades of grey surrounding Hay’s simplistic black and white portrait of a landed ruling class ruthlessly suppressing the masses.

Langbein has also criticised the Marxist interpretation of the eighteenth century legal system for ignoring the realities of court proceedings. A surprising number of those coming before the courts on felony charges were found innocent or were found guilty of lesser charges as a result of jury discretion. This might mean, for example, if a suspect was accused of grand larceny they might be found guilty of petty larceny instead which carried the lighter punishment of whipping or branding. In this instance however it is Langbein who is guilty of oversimplifying the situation; whilst the jury did have the power of life and death with their verdict, their composition and reliance on the judge’s opinion was such as to suggest very little empathy with the accused. Juries were not made up of the suspect’s ‘peers’ as we might interpret the term, a qualification of an income of £10 per annum meant that they generally had more sympathy with the propertied classes than the labourers and semi-skilled workers they most often tried, this was a time when two thirds of the population of London was too poor to even pay taxes. In addition the jury almost invariably found in favour of the judges opinion; in the 1750s Judge Ryder urged the jury to find Thomas Rolf, a highwayman guilty, in spite of his having been non-violent and driven to it through poverty as ‘compassion could not justify finding contrary to truth’. Yet, in many cases it did. Research carried out on the Surrey assizes in the period 1660 to 1800 found that of 334 people charged with murder 15 per cent were not indicted by the grand jury, 38 per cent were acquitted by trial jury and a further 25 per cent were convicted of the reduced charge of manslaughter which, as it retained benefice of clergy, was only nominally a capital offence and generally merited transportation. Such outcomes were the result of a huge range of complex factors: humanitarianism led many reformable youths and people driven to crime through desperation to escape the gallows, more pragmatic reasoning saw many of those with large dependent families (who would undoubtedly become dependent on the poor law and the rates of those who sat in the jury) escape punishment; at the same time a desire to finish the long day of court conducted in overcrowded and unsanitary conditions where ‘gaol fever’ could and, on numerous occasions, did flourish, saw many apathetic juries condemn large numbers of the accused to death after trials which lasted an average of only eight and a half minutes. Again the only conclusive finding from the evidence surrounding court trials is that verdicts were not predictably clear cut.

A favourite argument of contemporaries, and of those who believe the eighteenth century legal system was actually reasonably fair, is that regardless of how many people were accused of capital offences or even how many were found guilty of them, relatively few were ever actually executed. Of around 35,000 condemned to death in England and Wales between 1770 and 1830 the punishment was only actually carried out in around 7,000 cases; this is further backed up by evidence of the numbers being transported, a fate met by nearly 70 per cent of felons convicted at the Old Bailey between 1718 and 1769. Guilty verdicts in felony cases were considered by government whilst the condemned languished in prison waiting to discover if they would be reprieved. For those with friends, relatives or contacts concerned enough to make the effort petitions were drawn up and sent to the committee in an attempt to prove the ‘respectability’ and formerly unblemished character of the accused. Here, perhaps, Hay et al were right to point to the inequalities in the system; the higher the status of those signing your petition the better your chances of being pardoned. In 1769 for instance the Kennedy brothers had their sentences (for a brutal murder) reduced to transportation after the intervention of aristocrats who ‘kept’ their sister. Although this was not always the case, in the summer of 1754 for example Justice Ryder refused to reprieve a Richard Tickner despite requests from the speaker of the House of Commons and the Lord Lieutenant and the high sheriff of Surrey on the grounds that ‘there was no reason to doubt’ his guilt. High status signatories were not the only way to secure pardons however, King found that it was good character references which held most sway when it came to granting pardons, followed by considerations of age and poverty. For this reason two thirds of capital convicts aged 21 to 30 were actually hanged, compared with only one third in the 30 to 50 bracket: in an age where people married at an average age of 27/28 those in the latter bracket were more likely to have dependent families. Similarly very few teenagers went to the gallows, on the grounds that they could still be reformed. What we see when looking at the statistical evidence of the numbers of condemned who were actually hanged is not a simple rich/poor divide. Whilst it is certainly true that the ‘better sorts’ were rarely brought to the gallows – those who were such as Dr. Dodd and Lord Ferrers were regarded as exceptional, sensational, cases – there is another divide that deserves to be recognised. The law was biased against the 20 to 30 demographic, a group perceived by society to be reckless and dangerous, not just to the propertied classes, but to society as a whole.

That last point underlies perhaps the biggest issue surrounding the question of whom the eighteenth century law protected, the problem of differing mentalities between then and now. Langbein accuses the Marxist theories of his critics for their over-sentimentality, for trying to impose modern moral values on a different culture. This certainly has some validity for, as Gatrell freely admits, when looked at on an emotional basis there can be no doubt that eighteenth century law persecuted the lower orders. Courts may have looked more leniently upon those who committed crime through necessity but, as this essay has shown, this was no guarantee of escaping the hangman’s noose. The execution of Mary Jones provides a case in point; she was hanged for attempting to steal a length of fabric, desperate to try and feed her young children, yet she was found guilty and hanged as an example to placate the Ludgate shopkeepers who felt shoplifting was increasing. Shocking to modern sensibilities but are we right to judge by modern standards? The Archdeacon Paley in 1785 claimed that ‘he who falls by a mistaken sentence may be considered as falling for his country’, a view that to many was more acceptable than the humanitarian protests of groups such as the Quakers that capital punishment was not achieving its aims. Hay et al argued that the English ruling classes clung to capital punishment to secure their position; they used the ideology of the law to keep order over the numerically superior poor. And, although the position of the English aristocracy was more secure than such an idea gives credit for, in many ways they were right. The harshness of the so called ‘bloody code’ sought to provide social order which would protect everyone, even if the rights of the rich were more thoroughly covered, the inevitable result of the composition of parliament and officialdom. Throughout the eighteenth century there was a growing sense throughout society that crime – violent crime at that – was on the increase. Whilst not entirely true the impression is understandable as the growth of newspaper crime coverage and the frequency of war must have created perceived ‘crime waves.’ The immediate aftermath of war invariably results in large numbers of returning soldiers, putting a strain on employment and food resources, which as Beattie points out results in higher than usual levels of crime; in Surry 75 per cent of peacetime years saw above average numbers of indictments for property offences in the period 1660 to 1800 compared to only 14.3 per cent of wartime years. Those in power refused to admit that capital punishment was incapable of solving the problem, seeking to increase the threat rather than expand the prison service or reform the penal code, hence the introduction of medical dissection of the bodies of murderers for example. It was only as the century drew to a close that it was beginning to become apparent that the spectacle of the gallows was not having the desired effect and reform became a viable option; for the majority of the eighteenth century contemporaries felt the law was doing the best job it could of protecting the public from ever rising amounts of crime.

In conclusion the eighteenth century law cannot be said to simply have protected only one section of society as Hay et al tried to suggest. Yet, at the same time it must be acknowledged that the law was biased in favour of those who created and executed it, the propertied classes. It is apparent that many of the specific statutes passed in the eighteenth century were in the interests of the rich, and although the courts were notoriously harsher on those seen to have committed crime for purposes of greed rather than necessity it remains a fact that members of the propertied classes who were condemned to death were few and far between. The case of Dr. Dodd caused many to question the legal system seriously for the first time as few could believe a man of quality should meet the same fate as a common thief. Whilst these may be the facts of the case we should not ignore contemporary opinion; Blackstone advised caution in not condemning large numbers of Gordon rioters in fear of uprising but in general the lower orders relied on the law for social order as much as the rich. They were the most frequent users of the legal system and felt its upkeep in their own interests; criminals such as Jack Sheppard might have been popular heroes but only so long as their crime did not affect the personal property of those who idolised them. In an age where anxiety over crime was growing the law was seen by contemporaries to offer protection to all but the criminal element, and if, to modern eyes, the system looks riddled with inequalities we should remember that in a society riddled with inequality little else could be expected. Relatively speaking the law provided a means of redress for a large proportion of the population.

• J.M. Beattie, Crime and the Courts in England, 1660-1800 (1986), chapters 2-5 
• D. Hay et al (eds.), Albion’s Fatal Tree (1975), chapter 1. 
• J. Langbein, Albion’s Fatal Flaw, Past and Present 98 (1983) 
• P. Linebaugh, The London Hanged: Crime and Civil Society in the Eighteenth Century, 2nd edition (2003), chapters 1-3 
• P. King, Decision-makers and decision-making in the English Criminal Law 1750-1800, Historical Journal 27 (1984) 
• V.A.C. Gatrell, The Hanging Tree: Execution and the English People 1770-1868 (1994), preface, introduction, chapter 1. 
• J.M.Beattie, Policing and Punishment in London, 1660-1750: Urban Crime and the Limits of Terror (2001), chapter 7 
• I.Gilmour, Riots, Risings and Revolution: governance and violence in eighteenth-century England (1992), chapter 7 
• P. King, Newspaper Reporting, Prosecution Practice and Perceptions of Urban Crime: the Colchester Crime Wave of 1765, Continuity and Change 2 (1987)