'The Real Moll Flanders: 18th Century Criminal Trials and Punishment’. Part 1 the sources
Daniel Defoe’s Moll Flanders was published in 1722 and for the historian illustrates the relationship between gender and the emerging consumer society. The availability of luxury textiles and accessories allowed Moll to dress above her rank, which in turn provided opportunities for her to commit acts of theft. Moll’s involvement in pickpocketing and shoplifting were opportunistic activities and in the eighteenth century a common theme in the court room and press was an association between pickpocketing and prostitution. Defoe based the character from his own observations of infamous female thieves appearing before the Old Bailey.Crimes at this time were divided between misdemeanours and felonies. In terms of theft, the distinction was between a petty and grand larceny. A petty larceny was theft of an item or items valued at one shilling or less and was generally punishable by whipping, the pillory and, occasionally, a short term in the gaol or house of correction, although, before 1780 prisons were really for debtors rather than criminals. A grand larceny concerned theft over one shilling and attracted the death penalty, though first offenders might claim ‘benefit of clergy’ and, before 1718, any man or women claiming that benefit would be branded and released. By the eighteenth century the term benefit of clergy was something of a nonsense as it was available to men and women, irrespective of whether they could read or recite the ‘neck verse’ (Psalm 51, verse 1) which had been the test in the seventeenth century. Generally it was only for a second or third offence that the death sentence might be called for.
|Moll in Bridewell www.londonlives.org/images, accessed 30 August 2013.|
1718 saw a significant change in the law. The Act of 1718 for the further Preventing Robbery, Burglary and other Felonies and for the more effectual Transportation of Felons made transportation to America for seven years or more the statutory punishment for those who successfully pleaded benefit of clergy and for a range of common law felonies. While the sentencing judge at the assizes might impose the death penalty on those convicted of the most serious offences, or repeat offenders, very few men and no women were capitally punished for theft in Yorkshire. [Periods examined cover 1735-1745 and 1765-1775]. Instead, most capital convicts were recommended for mercy by the assize judge, which was invariably granted, and the convict re-sentenced to transportation for 7 or 14 years, and occasionally for life.
Those who were capitally punished for theft were most often horse thieves who operated in gangs (such as Dick Turpin) or those convicted of burglary, as it was an attack on the home at a time when property was valued more highly than the individual. Putting this into perspective, while a thief might be sent to America for 7 years for the theft of goods valued at over one shilling, the sentence for manslaughter remained as branding on the left hand. Transportation to America ended following the war of Independence.
Building up the story from the records is not straight-forward, it requires patience and tenacity in wading through the range of possible sources. Records for the quarter sessions are held at local county record offices, these are becoming increasingly available on-line, and some parts of the country are more advanced in digitising there records than others. Other than the Old Bailey, assize records are held at the National Archives. Where they survive, the records for the rest of England can be found in the ASSI series and are filed by county. Appeals from sentencing decisions at the assizes for England and Wales can be found in the SP (State Papers).
The case of female thief, Hester Norton, found in The National Archives demonstrates the range of records reviewed to build up details of the case. The records of the business of the assizes are scattered across a range of collections and not all collections are complete. Witness statements (depositions) for Yorkshire were found in series ASSI 45/20/2. Court records of the case, conviction and sentence were in ASSI 41/2 and ASSI 41/3. The Appeal from the capital conviction can be found in SP36/39 and SP44/83. In other cases, details of fines imposed and recognisances/sureties forfeited may be found in the estreat rolls in TNA series E (Exchequer). Copies of indictments (charges) and traverses (challenges to indictments) may be found in TNA series KB (King’s Bench). As yet, few of these records are catalogued at item level and are therefore difficult to research.
Newspapers reports rarely contain any information beyond the names of individuals appearing before or sentenced at the assizes with one or two words of description. For the most notorious crimes, usually rape or murder, some Broadsides were produced reporting on the trial in some detail. Few cases heard outside London were reported in printed form but some printed articles have survived and can be found in the British Library, Eighteenth Century Collections Online (ECCO).