Revision Notes: C18th Law and Order

Paper 10:

Past Paper Questions: 

• ‘Whether or not law in Britain was biased by class, there is no doubt that it was biased by gender.’ Discuss with reference to either the eighteenth or the nineteenth century. 
• ‘Illogical and Uncivilised.’ How accurate was this characterization by early nineteenth-century reformers of the eighteenth-century criminal code and its implementation? 
• Why was there such a discrepancy between the fierceness of criminal legislation in the eighteenth century and the actualities of its implementation? 
• Assess the changes in the nature and extent of interpersonal violence in any period of at least one hundred years. 
• What was the role of discretion in the eighteenth-century legal system? 
• ‘The criminal justice system in eighteenth-century England was designed for a pre-industrial society, a largely rural country dotted with villages and market towns.’ Discuss. 
• ‘Laws grind the poor, and rich men rule the law.’ (Oliver Goldsmith) Does modern historical investigation confirm Goldsmith’s contention about law in eighteenth-century society? 
• Whom did the law protect in the eighteenth century? 

Timeline 

1624 – Infanticide becomes a felony.
1688 – 50 capital offences. 1 in 4 chance of being hanged if convicted.
1690 – Locke writes that ‘government has no other end but the preservation of property.’
1690s – Removal of the benefice of clergy from robberies of goods or money over 5s.
1697 – Coining made high treason.
1701 – Pamphlet entitled: ‘Hanging not punishment enough’.
1704 – Military Act. Provides service in the armed forces as an alternative to hanging.
1719 – Transportation Act.
1723 – Workhouse Act.
1752 and 1754 – Subsides introduced for poor prosecutors. Henry Fielding had argued for this to increase conviction rates. (1752) Murder Act: gives the bodies of murderers to medical science to add ‘some further Terror and peculiar mark of infamy’.
1765 – 160 capital offences.
1772 – Abolition of pressing with weights.
1779 – Abolition of branding.
1783 – Invention of the long drop. Radzinowicz said it was because it was more humane. Gatrell says it was just so horses and carts wouldn’t have to be manoeuvred in the crowd.
1808 – First capital statute repealed. 1812 – In the aftermath of the Gordon Riots, Edmund Burke advises that only 6, high profile, executions are carried out. Shows UC fear of an uprising.
1815 – 225 capital offences. 1 in 10 chance of being hanged if convicted.
1830 – By this point the population of England and Wales had doubled from 7 to 14 million.
1868 – Executions moved behind prison walls.

The Bloody Code

• The name given to the English law code; refers to the high number of capital offences. 1688 = 50 such offences. 1765 = 160. 1815 = 225. Other European states were actually becoming less reliant on capital punishment; in Amsterdam for example there was less than one execution p.a. by the 1780s. 
• Hawkins explained the increasing specification of crime in English statute in 1788 as necessary: as ‘the increase of commerce, opulence and luxury has introduced a variety of temptations to fraud and rapine.’ English law lacked generality so each ‘new’ crime required a new statute. 

It was never a real deterrent 

• Gilmour (1992): the fate of hangmen. John Price (hangman 1714/15) hanged for murder. William Marvell transported for theft. Edward Dennis was involved in the Gordon Riots, but was reprieved and pardoned so he could hang his fellow rioters! 
• Gatrell (1994): ‘In theory, a Londoner growing up in the 1780s could by 1840 have attended some 400 execution days outside Newgate alone.’ 

The Law is the tool of the rich 

• Hay et al (Albion’s Fatal Tree, 1975. Marxist.) argue that the Bloody Code is rarely, if ever, used against the rich. 
• Gatrell (The Hanging Tree, 1994) openly admits that, on an emotional basis, eighteenth-century law persecuted the lower orders. 
• It protects property, rather than authority argues Gilmour (1992). Foreigners often commented on the disrespect of the mob. 
• Gilmour (1992) describes the frenzied attempts to save Dr. Dodd, chaplain to the king, from the gallows in 1777. He contrasts this with the apathy towards the 15-year-old ‘nobody’ hanged with him. 
• Court cases were time consuming and expensive. They could also leave the prosecutor open to retribution. Even when subsides were introduced they did not cover costs adequately. 
• The appeal system put a lot of faith on respectability, and the status of the signatories of one’s petition. Eg. 1769 the Kennedy Brothers had their sentences (for a brutal murder) reduced to transportation following the intervention of aristocrats who ‘kept’ their sister. 

The Law is actually the protector of the poor 

• Langbein (Albion’s Fatal Flaw, 1983) criticises the sentimental approach of historians like Hay; we shouldn’t get bogged down in the tragedy of the individual. His study of four sessions at the Old Bailey show most felony cases were brought by what we would think of as the lower middle or upper working classes. 
• King (1987) studied the Essex quarter sessions. Found that 90% of prosecutors were farmers, labourers, tradesmen or artisans. Similarly Brown found that only 1/8 of the Essex population were farmers, but they still initiated 35% of felony prosecutions. 
• From the 1750s there were subsides available to poor prosecutors. In addition there were often financial rewards attached to the prosecution of highwaymen and gangs. In 1748/9 the treasury paid out £200 and £300 on rewards. 1750/1 = £4600 and £6500. 
• Status didn’t count for everything. Eg. 1754 Judge Ryder refused to reprieve Richard Tickner despite requests from the speaker of the HofC, the Lord Lieutenant, and the high sheriff of Surrey on the grounds that ‘there was no reason to doubt’ his guilt. King found that good character references were far more important. 

Conviction Rates 

• Surprisingly Low. Of around 35,000 people condemned to death in England and Wales between 1770 and 1830, only around 7,000 were actually executed. Eg. Petty larceny being found instead of Grand larceny, which carried the lesser punishment of whipping or branding. Around 70% of convicted felons at the Old Bailey between 1718 and 1769 ended up being transported. 
• Jury Discretion. Although they often sided with the judge, they were, theoretically at least, impartial. They were not ‘peers’ as we might understand the term: there was a £10 income qualification, at a time when 2/3 of London’s population were too poor to even pay taxes. 
• Jury Apathy. ‘Gaol Fever’ could be rife in the unsanitary conditions, and the days were long and tiring. The average trial lasted only eight and a half minutes. Age Bias. 2/3 of capital convicts aged 21-30 (the reckless and dangerous sector of society) were hanged, compared to 1/3 of 30-50 year olds. The average age of marriage was 27/28: the latter group were thus more likely to have dependent families. Few teenagers went to the gallows, as they, it was believed, could be reformed. 2/5 of those hanged at Tyburn in the eighteenth-century had started an apprenticeship (‘a tedious seven years slavery’ according The London Tradesman in 1747). 
• Gender Bias. Beattie (2001) found that women were twice as likely to get off as men. Up to 4x as likely to be found for a lesser crime. Pregnant women could be reprieved until the child was born. (parole board took into consideration the fact they’d have to support a motherless child). Particular crimes associated with women, like infanticide, become better understood. Eg. By 1771 the ‘lung test’ was no longer seen as decisive evidence – in some cases. In addition domestic violence against women becomes increasingly unacceptable and is accepted as defence. 
• So judges had to urge the jury to find in their favour. Eg. Judge Ryder in the 1750s urged the jury to find highwayman, Thomas Rolf, guilty, as even though he had been non-violent and driven to crime through poverty ‘compassion could not justify finding contrary to truth.’ 
• Women suffer as prosecutors. A woman’s word against a man’s, eg. rape cases. 
• Women at a disadvantage under the law. Property rights curtailed, becoming a chattel of their husbands on marriage. Women could not sue for a divorce to an unfaithful husband (although he could if she strayed.) 

In fact, relatively few cases even made it to the courts 

• Informal, out of court, settlement was the preferred solution for many. 
• Compassion. Perhaps the victim of crime did not deem it bad enough to warrant the death of the criminal. 
• Shame. And/or fear of retribution. Eg. Rape cases hard to prove. Blackstone: ‘One excellence of the trial by jury is that the jury are triers of the credit of the witnesses, as well as the truth of the facts.’ 
• The major difficulty was finding the criminal in the days before a police force. There needs to be consensus within the community on what is criminal activity to flush the perpetrator out. Eg. Non-fatal violent crime within the family or between employers/employees not seen as a crime. Only a problem when it disturbs the common order. That’s why gangs were so reviled. 
• Eg. 3 million pounds of tea was illegally imported every year, some 20% of total British imports. Around 20,000 people were regularly engaged in smuggling in Kent and Sussex alone. BUT, the community clearly did not view it as a serious crime. 

Crime Rates 

• Seem to rise in later eighteenth-century as attitudes change. Violence within the family had always existed, only recently had it been perceived as a problem. Perhaps this explains why at Surrey (1660-1800) well over 2/3 of the men hanged had been convicted of robbery or burglary. 
• Linked to outside factors. Eg. Sharp rise in prosecutions for theft in 1740/1; coinciding with famine. Wheat was 27s a quarter in London in 1739. By Summer 1740 that figure had risen to 54s. 
• Especially linked to war. Eg. Surrey (1660-1800), 75% of peacetime years saw above average numbers of indictments vs. 14% of wartime years. (Obviously not just because there’s more crime then.) 

The Law upholds social structure 

• Archdeacon Paley in 1785: ‘he who falls by a mistaken sentence may be considered as falling for his country.’ 
• Fear of the perceived rise in violent crime. ‘Crime Waves’ occur with the frequent stop-starting of war; large numbers of returning soldiers put strain on employment and food resources. Newspaper reporting also adds to this ‘moral panic’. 
• Harshness of the bloody code was believed to be a necessary deterrent. If the rights of the rich were more thoroughly protected, it was the inevitable result of the composition of parliament and officialdom. 
• The law is needed by the poor too as the statistics show. Criminals such as Jack Sheppard were popular heroes only as long as their crime did not affect the personal property of those who idolised them. 
• Relatively speaking the law provided a means of redress for a large proportion of the population. The system appears riddled with inequalities because society itself was.