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Decision-Makers and Decision-Making in the English Criminal Law, 1750–1800*

Published online by Cambridge University Press:  11 February 2009

Peter King
Peter King
Affiliation:
Clare Hall, Cambridge
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Extract

In theory the eighteenth-century criminal law was a rigid, fixed and bloody penal code laying down the penalty of death for a broad range of property crimes. In practice it was a flexible and highly selective system. The legal process had no effective police force to provide an organizational core and it was therefore a private and negotiable process involving personal confrontation rather than bureaucratic procedure. All the major published studies of the administration of the criminal law in this period have stressed its highly discretionary nature. They have also shown that the law was important as ideology. The widely held notions that every freeborn Englishman was protected by the rule of law and that all were equal before the law both constrained authority and legitimized and strengthened it.

Type
Articles
Information
The Historical Journal , Volume 27 , Issue 1 , March 1984 , pp. 25 - 58
Copyright
Copyright © Cambridge University Press 1984

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References

1 The main eighteenth-century studies are: Thompson, E. P., Whigs and hunters: the origins of the Black Acts (1975)Google Scholar; Hay, D., ‘Property, authority and the criminal law’ in Hay, D., Linebaugh, P. et al. (eds.), Albion's fatal tree (1975)Google Scholar; Beattie, J. M., ‘Crime and the courts in Surrey 1736–53’ in Cockburn, J. S. (ed.), Crime in England, 1500–1800 (1977), pp. 155–86Google Scholar; Brewer, J. and Styles, J. (eds.), An ungovernable people: the English and their law in the seventeenth and eighteenth centuries (1980)Google Scholar.

2 In Hay et al., Albion's fatal tree.

3 Hay, ‘Property, authority and the criminal law’ p. 48.

4 Styles and Brewer, An ungovernable people, p. 20.

5 See Sharpe, J. A., ‘Enforcing the law in the seventeenth century English village’ in Gatrell, V. A. C., Lenman, B. and Parker, G. (eds.), Crime and the law: the social history of crime in western Europe since 1500 (1980)Google Scholar, for informal sanctions, and Radzinowicz, L., A history of English criminal law and its administration from 1750, IV (1967), 96–7Google Scholar, for the use of the armed forces.

6 The Essex evidence suggests that prosecutors had more room for manoeuvre than Langbein indicates. Between 1765 and 1787, 28 of the 227 prosecutors bound by recognizances to appear at the Essex quarter sessions failed to bring an indictment, but only two had their recognizances estreated. Langbein, ‘Albion's fatal flaws’, pp. 103–4.

7 Fielding, H., An enquiry into the causes of the late increase of robbers with some proposals for remedying the evil (1751)Google Scholar.

8 For recognizances see J. S. Cockburn, ‘Trial by the book? Fact and theory in the criminal process, 1558–1625’, in J. H. Baker, Legal records and the historian, pp. 60–3, and Hay, D., ‘Crime, authority and the criminal law: Staffordshire, 1750–1800’ (University of Warwick thesis, 1975), appendix B, p. 611Google Scholar. Depositions survive for only a minority of cases in Essex, and about two-thirds give a formal description of the occupation both of victim and accused.

9 For examples of men described as husbandmen in indictments who are clearly servants in husbandry or labourers in the more detailed depositions evidence see Essex Record Office (hereafter E.R.O.) Q/SBb 242/21 or 268/39.

10 However, some cases involving artisans as both victim and accused were prosecutions of employes by masters. Occasionally a labourer accused someone of lower status – a vagrant or pauper.

11 Disputes about property between farmes or tradesman were also frequently resolved in the civil or manorial courts. Most of the quarter sessions crimes were thefts of goods valued at less than a shilling.

12 The whole proceedings on the King's commission of oyer and terminer…for the county of Essex, 9th, 10th March, 1774, taken in shorthand by Gurney, Joseph (1774), numbers 1 and 2Google Scholar.

13 P.R.O. Assi/31/12–18; 54 of the 1,382 prosecutions were brought by those labelled as Gent or Esquire. Hay (‘Crime, authority and the criminal law’, p. 395) found that just over 13 per cent of victims were in his ‘landed society’; category and in that category he included clergy as well as esquires and gentry.

14 In 1767 for example a prosecutor was recommended to have his costs defrayed by the court because he was ‘but a journeyman blacksmith’: E.R.O. Q/SBb 248/7.

15 Bcattie, J. M., ‘Judicial records and the measurement of crime in eighteenth century England’, in Knapla, L. A. (ed.), Crime and justice in Europe and Camilla (1980), p. 136Google Scholar; Hay, D., ‘War, dearth and theft in the eighteenth century: the record of the English courts’, Past and Present, XLV (1982), 154Google Scholar; and his thesis ‘Crime, authority and the criminal law’, p. 395; Philips, D., Crime and authority in Victorian England: the Black Country, 1835–60 (1977), pp. 124–5Google Scholar, reveals an even higher working-class involvement in prosecutions.

16 Among witnesses they were even more numerous. At the Essex quarter sessions witnesses under recognizance to appear in felony cases (based on 1765–9, 1775–9, 1785–9, 1795–9): gentlemen o per cent; professional o.6 per cent; farmers 15 per cent; tradesmen and artisans 39 per cent; maritime occupations 2.9 per cent; husbandmen 3.2 per cent; labourers 39.2 per cent; the sample size was 313. Single women, servants and officials excluded (each represented between 5 and 6 per cent of all witnesses appearing).

17 Hay, ‘Property, authority and the criminal law’, pp. 36–7.

18 Almost all of them clearly did not finance prosecutions by the poor. I have analysed this issue in more depth in ‘Prosecution associations, courts and community concerns in Essex, 1740–1800’ (forthcoming).

19 The 1752 Act gave the court power to pay expenses if the prosecutor was poor and a conviction had been secured. The 1778 Act extended this to all prosecutors in felony cases. Radzinowicz, A history of English criminal law, 11, 76–7; Hay, ‘War, dearth and theft’, pp. 147–8.

20 Forty-nine per cent of all quarter sessions prosecutors received expenses 1780–9. By occupation this breaks down as gentry 16 per cent, tradesmen and artisans 47 per cent, farmers 52 per cent, labourers 75 per cent. Expense payments are recorded in E.R.O. Q/SMg 17–28.

21 For the lack of technical barriers see Beattie, ‘Judicial records’, p. 137. In a sample of 399 Essex depositions 1748–1800 27 per cent of the accused, 44.5 per cent of witnesses and 67.3 per cent of victims signed their names rather than using a mark. 100 per cent of gentlemen and professionals, 85 per cent of farmers, 75 per cent of tradesmen and artisans, but only 15 per cent of labourers and servants were able to sign.

22 Hay, ‘Property, authority and the criminal law’, p. 48.

23 Styles and Brewer in An ungovernable people, p. 21, in describing the law as ‘a limited multi-use right available to most Englishmen’ excluded ‘the labouring poor’, but in a number of ways they were clearly among those who used the law.

24 Thompson, E. P., ‘The moral economy of the English crowd in the eighteenth century’, Past and Present, L, (1971), 76–136CrossRefGoogle Scholar.

25 Philips, Crime and authority, p. 128.

26 Beattie, ‘Judicial records’, p. 137.

27 Source: the Home Circuit agenda books, Public Record Office (P.R.O.) Assi. 31. 13–15. Between 1776 and 1782 some ages are recorded; the enthusiasm for this practice rose and fell with the crisis over transportation. Figures 1 to 4 are based on 11 assizes (summer 1782 to summer 1787).

28 These counties not only had larger populations than Hertfordshire and Sussex, they also had higher indictment rates per head of population.

29 Sentencing policies towards women require more detailed treatment than is possible here – see chapters 7 and 8 of my thesis. For the period 1782–7 45.9 per cent of females and 33.6 per cent of all accused were found not guilty; 17.8 per cent of women received a partial verdict compared to an average of 12.1 per cent. This confirms the patterns in Beattie, ‘Crime and the courts’, p. 182.

30 Cobley, J., The crimes of the first fleet convicts (1970)Google Scholar. In more than three-quarters of cases the age given at the trial and that recorded by the surgeon of the transport ship matched within 1½ years after allowance was made for the intervening period.

31 The age structure of the general population in Table 2 is based on figures in Wrigley, E. A. and Schofield, R. S., The population history of England, 1541–1871 (1981)Google Scholar. My thanks to Roger Schofield for making this information available under more convenient age groupings.

32 Based on Gloucestershire Record Office SG/2 assize calendars. The wartime pattern 1793–1814 was less dominated by 18- to 25-year-olds – the peak age range for armed forces recruits.

33 The equivalent peak in the 1960s came about five years earlier: West, D. J., The young offender (1967), p. 15Google Scholar. But, although this change coincides in a very interesting way with changes in the school/apprenticeship leaving ages, changes in reporting techniques, policing, summary court usage and prosecutor's attitudes almost certainly affected the figures considerably.

34 A three-year age-group moving average has been used in Figures 1–4 to cut out minor fluctuations (i.e. the 17-year-old age-group on the graph represents the sentences given to 16- to 18-year-olds). The small number of convicts sentenced to be whipped, fined or burnt in the hand were included in the imprisoned category.

35 ‘Hard labour on the Thames’ was used as a temporary substitute for transportation. Sentences were longer and it was generally considered a harsher punishment than imprisonment. For background see Shaw, A., Convicts and the colonies (1966), chapter 2Google Scholar.

36 There were a few exceptions. Juries found ways of downgrading 3.6 per cent of highway robbery charges, and 8 of the 26 females accused of this crime benefited from partial verdicts.

37 Among all accused property offenders 35 per cent were aged 20 to 25. The equivalent figure for highway robbers was 46 per cent and for horse thieves 39 per cent.

38 Forty-six per cent of offenders were accused of grand larceny or aggravated capital larcenies not involving violence, breaking in or large animal theft; 22 per cent were accused of house-breaking or burglary.

39 Whipping, fines or burning in the hand were used in less than 8 per cent of grand larceny cases and were mainly given to convicts over 30.

40 Late reprieves may not always have been recorded by the assize clerks, but the numbers involved are small.

41 The same pattern occurs if burglary and house-breaking are analysed separately.

42 Madan, M., Thoughts on executive justice with respect to our criminal laws, particularly on the circuits (1785), p. 137Google Scholar.

43 For example see Sir John Fielding's letter to the earl of Suffolk: R. A. Roberts (ed.), Calendar of Home Office papers of the reign of George III, IV, document number 39.

44 Cockburn, ‘Trial by the book’, p. 75.

45 Hay, ‘Crime, authority and the criminal law’, p. 496; idem, ‘Property, authority and the criminal law’, p. 44.

46 Fifty-four per cent of the deserters and 59 per cent of the runaway servants advertised in the Chelmsford Chronicle and the Ipswich Journal (sample years 1764–91 and 1760–5 respectively) were aged 20–25.

47 Laslett, P., Family life and illicit love in earlier generations (1977), pp. 26–7Google Scholar.

48 The proceedings at the assizes for the county of Essex held at Chelmsford, 17th, 18th, and 19th July 1740 (1740), p. 15Google Scholar.

49 Blackstone, W., Commentaries on the laws of England, IV (1769), 15Google Scholar.

50 Langbein, ‘Albion's fatal flaws’, p. 111.

51 These are mainly found in P.R.O., H.O. 47 (plus H.O. 42 and 13 for supporting material) and pre-1782 in S.P. 36, 37 and 44. For a more detailed account of pardoning administration see Nelson, R. R., The Home Office, 1782–1802 (1969), pp. 95 ffGoogle Scholar.

52 Hay, ‘Property, authority and the criminal law’, pp. 43 ff.; Radzinowicz, A history of the English criminal law, 1, 114–18; Beattie, ‘Crime and the courts in Surrey’ pp. 173 and 179–83.

53 For my original paper (see note to title) I used 1784 and 1787, but 1790 has been preferred to the former year in this study because the transportation crisis was over by that date. This change and the development of a more sophisticated categorization system account for the differences between the figures quoted by John Langbein in ‘Albion's fatal flaws’, p. 113, and those in this paper. P.R.O., H.O. 47/6, 11. Almost all the cases were heard on the provincial assize circuits.

54 Hay, ‘Property, authority and the criminal law’, p. 42.

55 E.R.O. Q/SBb 378/77.

56 Beattie, ‘Crime and the courts in Surrey’, p. 173.

57 For example, William King's case rested partly on his 5½year service in the Royal Artillery Regiment and his involvement in the siege of Gibraltar: judges' report, 1787, P.R.O., H.O. 47/6.

58 Consistent information about previous convictions was rarely available to the court.

59 Redington, (ed.), Calendar of Home Office papers of the reign George III, II (1879), 405Google Scholar.

60 P.R.O., H.O. 47/11.

61 Thomas Brown: P.R.O., H.O. 47/11.

62 Radzinowicz, A history of English criminal law, 1, 12–14; Blackstone, Commentaries on the laws of England, IV, 23–4.

63 John Aston was only pardoned after his date of birth had been checked by the Home Office in the parish register, P.R.O., H.O. 47/6.

64 John Swain's petitioners claimed he was notoriously deficient of intellect and reported ‘he was the mayhew of his fellows in gaol, swallowing live mice for a halfpenny and then swallowing the halfpenny itself’. P.R.O., H.O. 47/6.

65 Walker, N., Crime and insanity in England, volume 1: the historical perspective (1968), p. 200Google Scholar; and chapter 12 for a general discussion.

66 Out of 136 reports 81 were positive, 38 were negative and 17 showed no sign of leaning in either direction. The 1787 sample had a higher proportion of positive recommendations. The reasons for this change are complex, but the slightly harsher policy pursued by judges in immediate post-trial decisions in the mid 1780s may have led to a higher proportion of sympathetic cases reaching the petitioning stage. By 1790 gaol overcrowding was a less pressing factor.

67 P.R.O., H.O. 47/11. John Gill's case (Yorkshire), Cooper Gadsift (Sussex), Richard Wiltshire (Surrey) for complaints of the prevalence of horse stealing.

68 Blackstone, Commentaries on the laws of England, IV, 16; and Paley, W., The principles of moral and political philosophy (1785)Google Scholar, in The works of W. Paley…and a corrected account of the author by E. Paley, IV, 426–8.

69 Chelmsford Chronicle, 15 Aug. 1783; judge's report on Henry Snook provides a parallel case: P.R.O., H.O. 47/1 (1784).

70 For an interesting quarter sessions example of the evaluation of character, E.R.O. Q/SB b 274/14 (case of William Ruffle).

71 P.R.O., H.O. 47/6. If there was the slightest suspicion that the prisoner had been set up in order to gain the reward, lenient treatment could be expected.

72 Redington, (ed.), Calendar of Home Office papers of the reign of George III, I (1878), 226Google Scholar.

73 P.R.O., H.O. 47/6. For another example 47/11 (case of John Foster).

74 P.R.O., H.O. 47/11 (petition of William Thompson).

75 P.R.O., H.O. 47/5.

76 P.R.O., H.O. 47/1.

77 Redington (ed.), Calendar of Home Office papers of the reign of George III, 1, 486.

78 P.R.O. H.O. 47/11 (case of John Massey).

79 For an explicit statement see Judge Hotham's comments in 1787 quoted by Hay in ‘Property, authority and the criminal law’, p. 44.

80 P.R.O., H.O. 47/11.

81 Even where some indication is given, the mentions system used here will not reflect that fact.

82 Judges' attitudes to the central pardoning machinery could be influenced by a number of factors. A fuller analysis of the resulting changes and of individual judges' policies is being undertaken by Douglas Hay. Within the relatively small number of cases studied here there are some indications of judges' individual inclinations.

83 P.R.O., H.O. 47/11.

84 P.R.O., H.O. 47/6.

85 Some information on the judges' attitudes to petitioning groups is available in about 18 per cent of cases. On two-thirds of these occasions the reaction is favourable, in one-third unfavourable. Middling men and members of the aristocracy can be found in both successful and unsuccessful petitioning groups.

86 The success rates were all between 56 and 60 per cent. The information on the social background of petitioners is very inadequate, however, and an effective analysis requires detailed work on each petitioning group.

87 P.R.O., H.O. 47/6.

88 Hay, ‘Property, authority and the criminal law’, p. 46.

89 Less than 10 per cent of cases resulted in an outcome that went broadly against the judge's wishes.

90 P.R.O., H.O. 47/11.

91 Ibid. (case of William Holland).

92 Paley, ‘Principles’, in The works of W. Paley, IV, 433.

93 Parliamentary History, XXV (1785–6), col. 904. For provincial reporting see Chelmsford Chronicle, 20 Sept. 1782; 6 Aug. 1784; 29 July 1785.

94 Based on the appendix to the Report from the select committee on criminal law, P.P. 1819, VIII.

95 A considerable number of petitions in the mid-1780s requested the remission of a transportation sentence, part of which had already been served in an English gaol. In order to clear the gaols in 1787 and in order to boost the armed forces' manning levels in 1790 the authorities appear to have responded favourably in a number of cases.

96 Hay, ‘Property, authority and the criminal law’, pp. 49–50.

97 Ibid. p. 55.

98 Thompson, E. P., ‘Eighteenth century English society: class struggle without class’, Social History (1978), pp. 133–165Google Scholar (particularly pp. 144–6 and 150–65) and idem, ‘Patrician society, plebeian culture’, Journal of Social History (1974), pp. 382–405.

99 Thompson, ‘Eighteenth century English society’, p. 164.

100 For a deeper discussion of law, ideology and hegemony in this context Sugarman, D., ‘ Theory and practice in law and history’, in Fryer, B., Hunt, A., McBarnet, D. and Moorhouse, B. (eds.), Law, state and society (1981)Google Scholar.

101 Hay, ‘Property, authority and the criminal law’, p. 55.

102 The Essex jurors' lists were dominated by farmers, food processors, shopkeepers, clothiers and tradesmen, but E.R.O. Q/RJ 1/11 (the 1783 list) also includes labourers, oyster dredgers, bricklayers, weavers, woolcombers and mariners. Most jurors were probably drawn from the wealthier sections of the middling sort but their exact location on the social scale has yet to be established. Beattie, ‘Crime and the courts in Surrey’, p. 164. Hay, ‘War, dearth and theft’, p. 54, suggests all Staffordshire jurors were from the top third of the income scale.

103 In grand larceny cases the juries' pious perjury, as Blackstone called it (Commentaries, IV, 239), was also important. For the influence of high prices or high crime rates on juries see Beattie, ‘Crime and the courts in Surrey’, pp. 183–4 and Hay, ‘War, dearth and theft’, p. 155.

104 Bailey, V., ‘Bibliographic essay: crime, criminal justice and authority in England’, Bulletin of the Society for the Study of Labour History, no. 40 (1980), p. 41Google Scholar, comments on their ‘rugged independence’. For a hard-fought victory over judicial pressure see P.R.O., H.O. 47/6 (Thomas Jones' case). By the later eighteenth century the balance of power within the courtroom was probably moving in favour of the jury. In Langbein, J., ‘The criminal trial before the lawyers’, University of Chicago Law Review, XLV, 2 (winter 1978)Google Scholar, it is suggested that the admission of lawyers cost the judge his mastery of the proceedings. For an account of judge/jury relationships from the judge's side see Langbein, J. H. ‘Shaping the eighteenth century criminal trial: a view from the Ryder sources’, University of Chicago Law Review, L (winter 1983), p. 21–3 and 115–23Google Scholar.

105 Report of the select committee on criminal laws, P.P. VIII (1819), 24.

106 See Wrightson, K. in English society, 1580–1680 (1982), pp. 51Google Scholar ff., for an interesting general discussion of the importance of neighbourliness.

107 Hay, ‘Property, authority and the criminal law’, p. 35.

108 In the petty sessions courts of Northern Essex in the 1780s and 1790s wood and vegetable theft cases far outnumbered game offences (E.R.O. P./LWR 1–11). The accused was almost always a labourer. At the Essex quarter sessions in the second half of the eighteenth century at least 15 per cent of the accused were living-in servants prosecuted by their masters.

109 E.R.O. P/LWR 2, 19 Feb. 1794, for a labourer who obtained the convictions of a miller and an innholder for riding upon a footpath. For game cases against farmers, E.R.O. Epping petty sessions book 17 Oct. 1783, 17 Sept. 1785. For a useful if brief discussion see Hay, ‘Property, authority and the criminal law’, pp. 34–5.

110 J. Brewer, ‘The Wilkites and the law, 1763–74: a study of radical notions of governance’, in Styles and Brewer, An ungovernable people, p. 169. See also pp. 154 ff. on the fostering of jury independence. For Hay's discussion of a ‘division of interest’ over the need to make prosecution more certain, see Hay, ‘Property, authority and the criminal law’, p. 60.

111 Hay, ‘Poaching and the game laws on Cannock Chase’, in Hay, el al. (eds.), Albion's fatal tree, pp. 189–254, and Munsche, P. B., Gentlemen and poachers: the English game laws, 1671–1831 (1981), particularly pp. 56–62Google Scholar for a game association vehemently opposed by middling men. For Essex associations see my forthcoming article.

112 Hay, ‘Property, authority and the criminal law’, p. 39.

113 Wrightson, K. and Levine, D., Poverty and piety in an English village: Terling, 1525–1700 (1979), p. 104Google Scholar.

114 In a thought-provoking seventeenth-century study Wrightson has shown that the middling men responsible for the administration of the poor law were increasingly differentiating themselves from the poorer groups in their communities: Wrightson, English society, 1580–1680, pp. 223–6.

115 Turner, Thomas, The diary of a Georgian shopkeeper: a selection, ed. by Blcncourt, R. W. and Lower, M. A. (1979), p. 25Google Scholar.

116 E.R.O. D/P 81/15/3 and Q/SBb. 183/21. After he had been in gaol for 2 years the magistrates at the quarter sessions wrote to the parish asking them to consider releasing him.

117 Thompson, ‘Patrician society, plebeian culture’, p. 388.

118 E.R.O. Q/SMg and Q/SBb for the calendars, some of which may under-represent the number of poor law offenders considerably.

119 E.R.O. Q/SBb 339/38, for example.

120 The clashes of rival interests such as those of farmers and manufacturers in relation to wool export or other trading restrictions should not be underestimated.

121 Perkin, H., The origins of modern English society, 1780–1880 (1969), pp. 20–1Google Scholar.

122 For Thompson's treatment of the middling group see ‘Eighteenth century English society’, pp. 142–4, and ‘Patrician society, plebeian culture’, p. 395. He does allow for some change, however, in the last three decades of the eighteenth century – the period which mainly concerns us here.

123 Ibid. p. 395.

124 Hay, ‘Property, authority and the criminal law’, p. 44.

125 The proceedings at the assizes of oyer and terminer and general gaol delivery, for the county of Essex held at Chelmsford (March 1739). For caustic treatment given to both accused and prosecutors, pp. 7 and 10.

126 P.R.O., H.O. 47/6, 6 February 1787.

127 In 1800 Judge Hotham was clearly aware of this problem. After a 10-year-old boy had been capitally convicted, Hotham recorded ‘The scene was dreadful, on passing sentence, and to pacify the feelings of a most crowded court, who all expressed their horror of such a child being hanged by their looks and manners…I hinted…its still being open to clemency’: Radzinowicz, A history of English criminal law, 1, 13.

128 Thompson, Whigs and hunters, p. 264.

129 Langbein, ‘Albion's fatal flaws’, pp. 119–20.

130 Hay, ‘Property, authority and the criminal law’, p. 46.

131 Thompson's masterful conclusion to Whigs and hunters remains the best discussion of this theme (pp. 258–69).